Law Lib. I C30 1916 V. 2 COPY 1 UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY AT LUS ANGELES LIBRARY THE CODES OF CALIFORNIA AS AMENDED AND IN FORCE AT THE CLOSE (JF THE FORTY-FIRST SESSION OF THE LEGISLATURE 1915 IN FOUR \ GLUMES EDITF.D BY JAMES M. KERR VOLUME TWO C IVIL UODK LOS ANGELES WAYSIDE PRESS IMItl.ISIlKIO 1l IX. Measure of Indemnity 2736-2746 Chapter III. Fire Insurance 2752-2757 \\ . Life and Health Insurance 1762-2766 Title XII. Indemnity . .2772-2781 XIII. Guaranty 2787-2866 Chapter 1. (uiaranty in (ieneral 2787-2825 Article I. Defiiiitioii of (hiaranty 2787,2788 11. Creation of Guaranty 2792-2795 111. Interpretation of (iuaranly 2799-2802 1\'. Liability of Guarantors 2806-2810 V. Continuing- Guaranty 2814, 2815 VI. Exoneration of Guarantors 2819-2825 xiii CONSPECTUS Sections. Chapter II. Suretyship 2831-2866 Article I. Who Are Sureties 2831,2832 II. Liability of Sureties 2836-2840 III. Rights of Sureties 2844-2850 I\'. Rights of Creditors 2854 V. Letter of Credit 2858-2866 Title XIV. Lien 2872-3080 Chapter I. Liens in General 2872-2913 Article I. Definition of Liens 2872-2877 II. Creation of Liens 2881-2884 III. Effect of Liens 2888-2892 IV. Priority of Liens 2897-2899 V. Redemption from Liens 2903-2905 VI. Extinction of Liens 2909-2913 Chapter II. Mortgage 2920-2973 Article I. Alortgages in General 2920-2942 II. Mortgages of Real Property 2947-2952 III. Mortgages of Personal Property . .2955-2973 Chapter III. Pledge 2986-3011 IV. Bottomry 3017-3029 V. Respondentia 3036-3040 VI. Other Liens 3046-3065 VII. Stoppage in Transit 3076-3080 Title XV. Negotiable Instruments 3086-3262 Chapter I. Negotiable Instruments in General. 3086-3165 Article I. General Definitions 3086-3095 II. Interpretation 3099-3104 III. Indorsement 3108-3125 IV. Presentment for Paymenl 3130-3137 \'. Dishonor 3141-3151 \\. Excuse of Presentment and Notice 3155-3160 \I1. Extinction 3164,3165 xiv CONSPECTUS Sections. Chapter II. Bills of Exchange 3171-3238 Article I. Form and Interpretation 3171-3177 II. Days of Grace 3181 III. Presentment for Acceptance 3185-3189 IV. Acceptance 3193-3199 \'. Acceptance or Payment for Honor 3203-.U07 \'l. Presentment for Payment 3211-3214 \'II. Excuse of Presentment and Notice 3218-3220 \'III. Foreign Bills 3224-3238 Chapter III. Promissory Notes 3244-3248 IV. Checks 3254, 3255 V. Bank Notes and Certificates of Deposit ' 3261.3262 Title XVI. General Provisions 3268 DIVISION FOURTH. (Sees. 3274-3543.) PART I. RELIEF 3274-3425 Title I. Relief in General 3274, 3275 II. Compensatory Relief 328L-3360 Chapter I. Damages in General 3281-3294 Article I. General Principles 3281-3283 II. Interest as Damages 3287-3290 III. Exemplary Damages .. 3294 Chapter 11. Measure of Damages 3300-3360 .\rticlc [. Damages for Breach of Contract .. 3300-3319 II. Damages for Wrongs .3333-3341 III. Penal Damages 3344-3348 W. General Provisi'ns 3353-3.1^0 Title III. Specific and Preventive Relief 3366-3423 L liajjier I. General Principles 3366-3369 a. Specific Relief 3375-3415 XV CONSPECTUS Sections. Article I. Possession ot Real Property 3375 II. Possession of Personal Propertj'. 3379, 3380 III. Specific Performance of Obliga- tions 3384-3395 IV. Revision of Contracts 3399-3402 \'. Rescission of Contracts 3406-3408 VI. Cancelation of Instruments 3412-3415 Chapter III. Preventive Relief ....■ 3420-3423 PART II. SPECIAL RELATIONS OF DEBT- OR AND CREDITOR 3429-3473 Title I. General Principles 3429-3433 II. Fraudulent Instrument and Transfers. . .3439-3442 III. Assignments for the Benefit of Credit- ors 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 JURISPRUDENCE. ...3509-3543 CIVIL CODE. AN ACT TO ESTABLISH A CIVIL CODE [Approved March 21, 1872.] The people of the state of California, represented in the senate and assembly, do enact as follows: TITLE OF THE ACT. § 1. This act shall be known as the Civil Code of the State of California, and is in four divisions, as follows: I. The first relating to persons. II. The second to property. III. The third to obligations. IV. The fourth contains general provisions relating to the three preceding divisions. History: Enacted Marcli 21, 1872. PRELIMINARY PROVISIONS. 2. When this code takes effect. 3. Not retroactive. 4. Rules of construction. 5. Provisions similar to existing laws, how construed. 6. Actions, etc., not affected. 7. Holidays. 8. Same [repealed]. 9. Business days. 10. Computation of time. 11. Certain acts not to be done on holidays. 12. Joint 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. WHEN THIS CODE TAKES EFFECT. This code takes effect at twelve o'clock noon on the first daj^ of Janu- ary, eighteen hundred and seventy-three. Hi.st(irj-: Enacted March 21, 1872. § 3. NOT RETROACTIVE. No part of it is retroactive, unless expressly so declared. Htstiiry: Enacted March 21, 1872. §4. RULES OF CONSTRUCTION. The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this code. The code establishes the law of this state respecting the sub- §§ 5-7 CIVIL CODE. jects to which it relates, and its provisions are to be liberallj' construed with a view to effect its objects and to promote justice. History: Enacted March 21, 1872; amended by the Code Com- mission, Act March 16. 1901, Stats, and Amdts. 1900-1, p. 332; amendment declared unconstitutional in Lewis vs. Dunne, 134 Cal. 291, 86 Am. St. Rep. 257, 66 Pac. Rep. 478, 55 L. R. A. 833. See Code Civ. Proc, Pt. I, Introductory note. §5. PROVISIONS SIMILAR TO EXISTING LAWS, HOW CONSTRUED. The provisions of this code, so far as the}' are substantially the same as existing statutes or the common law, must be construed as continuations there- of, and not as new enactments. History: Enacted March 21, 1872; amended March 16, 1901, Stats, and Amdts. 1900-1, p. 332; unconstitutional, see history, § 4 ante. §6. ACTIONS, ETC., NOT AFFECTED. No action or proceeding commenced before this code takes effect, and no right accrued, is affected by its provisions. History: Enacted March 21, 1872. § 7. HOLIDAYS. Holidays within the meaning of this code, are every Sunday, the first day of January, the twelfth day of February to be known as Lincoln day, twenty-second day of February, thirtieth day of Alay, fourth day of July, ninth day of September, first Monday in September, twelfth day of October, to be known as "Columbus day," twent}'^- fifth day of December, every day on which an election is held through [out] the state, and every day appointed by the president of the United States or by the governor of this state for a public fast, thanksgiving or holiday. If the first day of January, twelfth day of February, twenty- second day of February, the thirtieth daj^ of May, the fourth PRELIMINARY PROVISIONS. § 8 day of July, the ninth day of September, the twelfth day of October, or the twenty-fifth day of December falls upon a Sunday, the Monday following is a holiday. Every Saturday from twelve o'clock noon till twelve o'clock midnight is a holiday as regards the transaction of business in the public offices of this state, and also in political divisions thereof where laws, ordinances or charters provide that public offices shall be closed on holidays; this shall not be construed to prevent or invalidate the issuance, filing, service, execution or recording of any legal process or writtcMi in- strument whatever on such Saturday afternoons; [Public schools.] And provided further, that the public schools of this state shall close on Saturday, Sunday, the first day of January, the thirtieth day of May, the fourth day of July, the twenty-fifth day of December and on every day appointed by the president of the United States or the gov- ernor of this state for a public fast, thanksgiving or "holi- day. Said public schools shall continue in session on all other legal holidays and shall hold proper exercises com- memorating the day. Boards of school trustees and cit}'- boards of education shall have power to declare a holiday in the public schools under their jurisdiction when good reason exists therefor. History: Enacted March 21, 1872; amended ISSO, Code Amdts. 1880 (C. C. pt.), p. 9; 1889, Stats, and Amdts. 1889, p. 47; 1S93, Stats, and Amdts. 1893, p. 186; 1897, Stats, and Amdts. 1897, p. 14; March 18, 1907, Stats, and Amdts. 1907, p. 565, Kerr's Stats, and Amdts. 1906-7, p. 899; February 19, 1909, Stats, and Amdts. 1909, p. 23; March 27, 1911, Stats, and Amdts. 1911, p. 520. §8. SAME [repealed]. History: Enacted March 21, 1872; repealed by Code Commis- sion amendment of March 16. 1901, Stats, and Amdts. 1900-1, p. 332; held unconstitutional, see history, § 4 ante; repealed, Act Feb. 20, 1905, Stats, and Amdts. 1905, p. 11. §§9-13 CIVIL CODE. §9. BUSINESS DAYS. All other clays than those men- tioned in section seven are to be deemed business days for all purposes. History: Enacted March 21, 1S72; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 332; held unconstitutional, see history, § 4 ante; amended Feb. 20, 1905, Stats, and Amdts. 1905, p. 11. § 10. COMPUTATION OF TIME. The time in which any act provided by law is to be done is computed by ex- cluding the. first day and including the last, unless the last day is a holiday, and then it is also excluded. History: Enacted March 21, 1872. § 11. CERTAIN ACTS NOT TO BE DONE ON HOLI- DAYS. Wherever any act of a secular nature, other than a work of necessity or mercy, is appointed by law or con- tract 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. History: Enacted March 21, 1872. § 12. JOINT AUTHORITY CONSTRUED. Words giv- ing a joint authority to three or more public officers or other persons are construed as giving such authority to a majority of them, unless it is otherwise expressed in the act giving the authority. History: Enacted March 21, 1872. § 13. WORDS AND PHRASES, HOW CONSTRUED. Words and phrases are construed according to the context and the approved usage of the language; but technical words and phrases, and such others as may have acquired a pe- culiar and appropriate meaning in law, or are defined in the PRELIMINARY PROVISIONS. § 14 succeeding section, are to be construed according to such peculiar and appropriate meaning or definition. Hi.st-: Enacted March 21, 1S72; amended March 30, 1874, Code Amdts. 1873-4, p. 186; April 6, 1880, Code Amdts. 1880 (C. C. pt.), p. 3; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 336, held unconstitutional; see his- tory. Kerr's Cyc. C. C. § 4; amended March IS, 1905, Stats, and Amdts. 1905, p. 182; amended March 15, 1907, Stats, and Amdts. 1907, p. 305, Kerr's Stats, and Amdts. 1906-7, p. 399. §69a. CERTIFICATE OF REGISTRY OF MAR- RIAGE. All persons abotit to be joined in marriage must obtain from the county clerk of the county in which the marriage is to be celebrated, in addition to the license there- for provided for in section sixtj'-nine of the Civil Code, a certificate of registry as provided in section three thousand and seventy-six of the Political Code which shall contain among other matters as near as can be ascertained, the race, color, age, name and surname, birthplace, residence of the 27 §§70,71 CIVIL CODE. JDiv.I,Pt.III. parties to be married, number of marriage and condition of each, whether single, widowed, or divorced, the occupation of the parties, maiden name of the female, if previously married, the names and birthplaces of the parents of each, and the maiden name of the mother of each, which said cer- tificate of registry shall be filled out as herein provided in the presence of the county clerk issuing the marriage license and shall then be presented to the person performing the ceremony and shall be filed by him with the county re- corder within three days after the ceremony. Hi.story: Enacted April 26, 1*909. Stats, and Amdt.s. 1909, p. 1093. § 70. BY WHOM MARRIAGES MAY BE CELE- BRATED. Marriage may be solemnized by either a justice of the supreme court, justice of the district courts of ap- peal, judge of the superior court, justice of the peace, judge of any police court, city recorder, priest or minister of the gospel of any denomination. [Repealing clause.] Sec. 2. All acts and parts of acts in conflict with the provisions of this act are hereby repealed. History: Enacted March 21, 1872; amended April 6, 1880, Code Amdts. 1880 (C. C. pt.), p. 4; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 336, held un- constitutional, see history, § 69 ante; amended March 20, 1903, Stats, and Amdts. 1903, p. 255; amended March 1, 1907, Stats. and Amdts. 1907, p. 80, Kerr's Stats, and Amdts. 1906-7, p. 400. In effect immediately. §71. NO PARTICULAR FORM OF SOLEMNIZA- TION. No particular form for the ceremony of marriage is required, but the parties must declare, in the presence of the person solemnizing the marriage, that they take each other as husband and wife. History: Enacted March 21, 1872. 28 Tit. I, ch. I, art. II.] SOLEMNIZATION— CERTIFICATES. §§72-75 §72. REQUIREMENTS BY PERSONS SOLEMNIZ- ING MARRIAGE. The person solemnizing a marriage must first require the presentation of the marriage license; and if he has any reason to doubt the correctness of its statement of facts, he must first satisfy himself of its correct- ness, and for that purpose he may administer oaths and ex- amine the parties and witnesses in like manner as the county clerk does before issuing the license. History: Enacted March 21, 1872; amended March SO, 1874, Code Amdts. 1873-4, p. 186. §73. CERTIFICATES OF MARRIAGE. The person solemnizing a marriage must make, sign, and indorse upon, or attach to, the license, a certificate, showing: 1. The fact, time, and place of solemnization; and, 2. The names and places of residence of one or more wit- nesses to the ceremony. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 187. § 74. CERTIFICATE TO PARTIES AND RECORDER. He must, at the request of, and for either party, make a certi- fied copy of the license and certificate, and file the originals with the county recorder within thirty days after the mar- riage. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 336, held unconstitutional; see history, §4 ante. §75. DECLARATION OF MARRIAGE, HOW MADE. [Repealed.] History: Enacted March 21, 1872; repealed March 26, 1895, Stats, and Amdts. 1895, p. 121. 29 §§76-79 CIVIL CODE. [Div.I.Pt.III. §76. DECLARATION WHERE THERE IS NO REC- ORD. If no record of the solemnization of a marriage here- tofore contracted, be known to exist, the parties may join in a written declaration of such marriage, substantially show- ing: 1. The names, ages, and residences of the parties. 2. The fact of marriage. 3. That no record of such marriage is known to exist. Such declaration must be subscribed by the parties and at- tested by at least three witnesses. Hiistory: Enacted March 21, 1872; amended March 30, 1S74, Code Amdts. 1873-4, p. 187. §77. DECLARATION TO BE ACKNOWLEDGED AND RECORDED. Declarations of marriage must be acknowledged and recorded in like manner as grants of real property. History: Enacted March 21, 1S72. §78. EITHER PARTY MAY PROCEED TO TEST VALIDITY OF MARRIAGE. If either party to any mar- riage denies the same, or refuses to join in a declaration thereof, the other may proceed, by action in the superior court, to have the validity of the marriage determined and declared. History: Enacted March 21, 1872; amended to make it con- form to new constitution, Feb. 15, 1883^ Stats, and Amdts. 1883, p. 4. §79. MARRIAGE WITHOUT LICENSE. When un- married persons, not minors, have been .living together as man and wife, they may, without a license, be married by any clergyman. A certificate of such marriage must, by the clergyman, be made and delivered to the parties, and re- corded upon the records of the church of which the clergy- man is a representative. No other record need be made. History: Enacted Feb. 3, 187S, Code Amdts. 1S77-S, p. 75. 30 Tit. T, ell. I, art. II.] DECLARATION OF MARRIAGE. § /Qa § 79a. RECORDING DECLARATION OF MARRIAGE. The provisions of this chapter, so far as they relate to the solemnizing of marriages, are not applicable to members of any particular religious denomination having, as such, any peculiar mode of entering the marriage relation; but such marriages must be declared, as provided in section seventy- six, and be acknowledged and recorded, as provided in sec- tion seventy-seven. Where a marriage is declared as pro- vided in said section seventy-six, the husband must, file said declaration with the county recorder within thirty days after such marriage, and upon receiving the same the county re- corder must record the same; and if the husband fails to make such declaration and file the same for record, as here- in provided, he is liable to the same penalties as any person authorized to solemnize marriages, who fails to make the return of such solemnization as provided by law. History: Enacted March 27, 1897, Stats, and Amdts. 1897, p. 1S6; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 3.36, held unconstitutional; see history, § 4 ante; amended and renumbered 79a instead of l^Vz, March 21, 1905, Stats, and Amdts. 1905, p. 555. 31 §§80,82 CIVIL CODE. [Div.I.Pt.III. ARTICLE III. JUDICIAL DETERMINATION OF VOID MARRIAGE. § 80. Action to have marriage declared void. §80. ACTION TO HAVE MARRIAGE DECLARED VOID. Either party to an incestuous or void marriage may proceed, by action in the superior court, to have the same so declared. Hi.story: Enacted March 15, 1876, Code Amdts. 1875-6, p. 69; amended (changing from former district to superior court) April 6, 1S80, Code Amdts. (C. C. pt.), p. 4. CHAPTER II. DIVORCE. Article I. Nullity, §§82-86. II. Dissolution, §§90-107. III. Causes for Denying Divorce, §§ 111-132. IV. General Provisions, §§ 136-148. ARTICLE I. NULLITY. § 82. Causes for annulling marriage. § 83. Actions therefor, when to be commenced. § 84. Children of annulled marriage. § 85. Custody of children. § 86. Effect of judgment of nullity. §82. CAUSES FOR ANNULLING MARRIAGES. A marriage may be annulled for any of the following causes, existing at the time of the marriage: 1. That the party in whose behalf it is sought to have the marriage annulled was under the age of legal consent, and 32 Tit. I, ch. II, art. I.] ANNULLING MARRIAGE. §83 such marriage was contracted without the consent of his or her parents or guardian ,or person having charge of him or her; unless, after attaining the age of consent, such party for any time freely cohabited with the other as husband or wife. 2. That the former husband or wife of either party was living, and the marriage with such former husband or wife was then in force. 3. That either party was of unsound mind, unless such party, after coming to reason, freely cohabit with the other as husband or wife. 4. That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband or wife. 5. That the consent of either party was obtained by force, unless such party afterwards freely cohabited with the other as husband or wife. 6. That either party was, at the time of marriage, physical- ly incapable of entering into the marriage state, and such in- capacity continues, and appears to be incurable. History: Enacted March 21, 1S72; amended March 30, 1874, Code Amdts. 1873-4, pp. 187-188. §83. ACTIONS THEREFOR, WHEN COMMENCED. An action to obtain a decree of nullity of marriage, for causes mentioned in the preceding section, must be com- menced within the periods and by the parties, as follows: 1. For causes mentioned in subdivision one: by the party to the marriage who was married under the age of legal con- sent, 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 mar- ried 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 hus- band or wife. - 33 §§84-86 CIVIL CODE. [Div.I,Pt.III. 3. For causes mentioned in subdivision three: by the part}' 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, w^ithin 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 marriage. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, pp. 188-189. §84. CHILDREN OF ANNULLED MARRIAGE. A judgment of nullity of marriage does not affect the legiti- macy of children begotten before the judgment. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 337, held unconstitutional; see liistory, § 4 ante; amended March 21, 1905, p. 555. §85. CUSTODY OF CHILDREN. The court must award the custody of the children of a marriage annulled on the ground of fraud or force to the innocent parent, and may also provide for their education and maintenance out of the property of the guilty party. History: Enacted March 21, 1872. §86. EFFECT OF JUDGMENT OF NULLITY. A judgment of nullity of marriage rendered is conclusive only as against the parties to the action and those claiming under them. History: Enacted March 21, 1872. 34 Tit.I,ch.II,art.II.] DIVORCE— EFFECT OF. §§90,91 ARTICLE II. DISSOLUTION OF MARRIAGE. § 90. Marriage, how dissolved. § 91. Effect of divorce. § 92. Causes for divorce. § 93. Adultery defined. § 94. Extreme cruelty, what. § 95. Desertion, what. § 96. Desertion, how manifested. § 97. In case of stratagem or fraud, who commits desertion. § 98. In case of cruelty, where one party leaves the other, who commits desertion. § 99. Separation by consent not desertion. § 100. Absence becomes desertion, when. § 101. Consent to separate revocable. § 102. Desertion, how cured. § 10.3. Wife must abide by husband's selection of home, or it is desertion on her part. § 101. If place is unfit, and wife refuses to conform, it is de- sertion by the husband. § 105. Wilful neglect, what. § 106. Habitual intemperance, what. § 107. Habitual Intemperance for one year. §90. MARRIAGE, HOW DISSOLVED. Marriage is dissolved only: 1. By death of one of the parties; or, 2. B}' the judgment of a court of competent jurisdiction decreeing a divorce of the parties. History: Enacted March 21, 1872; amended March 30, 187 4, Code Amdts. 1873-4, p. 189. §9L EFFECT OF DIVORCE. The efifect of a judg- ment decreeing a divorce, is to restore the parties to the state of unmarried persons. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 189. 35 §§92-96 CIVIL CODE. [Div.I.Pt.III. §92. CAUSES FOR DIVORCE. Divorces may l)e granted for any of the following causes: 1. Adultery. 2. Extreme criieltj^ 3. Wilful desertion. 4. Wilful neglect. 5. Habitual intemperance. 6. Conviction of felony. History: Enacted March 21, 1872; amended March 30, 1874, Code Anidt-s. lS7.'?-4, p. 189. §93. ADULTERY DEFINED. Adultery is the volun- tary sexual intercourse of a married person with a person other than the offender's husband or wife. History: Enacted March 21, 1872. § 94. EXTREME CRUELTY, WHAT. Extreme cruelty is the wrongful infliction of grievous bodily injury, or griev- ous mental suffering, upon the other by one party to the marriage. History; Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 337, held unconstitutional; see liistory, § 4 ante; amended March 7, 1905, Stats, and Amdts. 1905, p. 75. §95. DESERTION, WHAT. Wilful desertion is the voluntary separation of one of the married parties from the other with intent to desert. History: Enacted March 21, 1872. ' §96. DESERTION, HOW MANIFESTED. Persistem refusal to have reasonable matrimonial intercourse as hus- band and wife, when health or physical condition does not make such refusal reasonably necessary, or the refusal of either part}- to dwell in the same house with the other part}', when there is no just cause for such refusal, is desertion. Hi.story: Enacted March 21, 1872. 36 Tit. I, ch. II, art. II.] STRATAGEM, ETC.— CRUELTY. §§97-101 §97. IN CASE OF STRATAGEM OR FRAUD, WHO COMMITS DESERTION. When one party is induced, by the stratagem or fraud of the other party, to leave the fam- ily dwelling-place, or to be absent, and during such absence the ofifending party departs with intent to desert the other, it is desertion by the party committing the stratagem or fraud, and not by the other. History: Enacted March 21, 1S72. §98. IN CASE OF CRUELTY, WHERE ONE PARTY LEAVES THE OTHER, WHO COMMITS DESERTION. Departure or absence of one party from the family dwelling- place, caused by cruelty or by threats of bodily harm from which danger would be reasonably apprehended from the other, is not desertion by the absent party, but it is desertion by the other party. History: Enacted March 21, 1872. §99. SEPARATION BY CONSENT NOT DESER- TION. Separation by consent, with or without the under- standing that one of the parties will apply for a divorce, is not desertion. History: Enacted March 21, 1872. § 100. ABSENCE BECOMES DESERTION, WHEN. Absence or separation, proper in itself, becomes desertion whenever the intent to desert is fixed during such absence or separation. History: Enacted Marcli 21, 1S72; amended MarclT .30, 1874, Code Amdt.s. 1873-4, p. 189. § 101. CONSENT TO SEPARATE REVOCABLE. Con- sent to a separation is a revocable act, and if one of the parties afterwards, in good faith, seeks a reconciliation and restoration, but the other refuses it, such refusal is desertion. History: Enacted March 21, 1872. 130103 §§102-105 CIVIL CODE. [Div.I.Pt.III. § 102. DESERTION, HOW CURED. If one party de- serts the other, and before the expiration of the statutory period required to make the desertion a cause of divorce, re- turns and offers in good faith to fulfil the marriage contract, and solicits condonation, the desertion is cured. If the other party refuse such offer and condonation, the refusal shall be deemed and treated as desertion by such party from the time of refusal. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 190. § 103. WIFE MUST ABIDE BY HUSBAND'S SELEC- TION OF HOME, OR IT IS DESERTION ON HER PART. The husband may choose any reasonable place or mode of living, and if the wife does not conform thereto, it is desertion. History: Enacted March 21, 1872. § 104. IF THE PLACE IS UNFIT, AND WIFE RE- FUSES TO CONFORM, IT IS DESERTION BY THE HUSBAND. If the place or mode of living selected by the husband is unreasonable and grossly unfit, and the wife does not conform thereto, it is desertion on the part of the hus- band from the time her reasonable objections are made known to him. Hi.story: Enacted March 21, 1S72. § 105. WILFUL NEGLECT, WHAT. Wilful neglect is the neglect of the husband to provide for his wife the com- mon necessaries of life, he having the ability to do so; or it is the failure to do so by reason of idleness, profligacy, or dissipation. History: Enacted March 21, 1S72. 38 Tit.I.ch.II.art.IL] HABITUAL INTEMPERANCE. §§ 106, 107 § 106. HABITUAL INTEMPERANCE, WHAT. Hab- itual 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 busi- ness, or which- would reasonably inflict a course of great mental anguish upon the innocent party. History: Enacted March 21, 1S72; amended by Code Commis- sion, Act Marcli 16, 1901, Stats, and Amdts. 1900-1, p. 337, held unconstitutional; see history, §4 ante. § 107. HABITUAL INTEMPERANCE FOR ONE YEAR. Wilful desertion, wilful neglect, or habitual intem- perance must continue for o.ne year before either is a ground for divorce. History: Enacted Marcli 21, 1S72. 39 §111 CIVIL CODE. [Div.I,Pt.III. * ARTICLE III. * CAUSES FOR DENYING DIVORCE. § 111. Divorces denied, on sliowing wliat. § 112. Connivance, what. § 113. Corrupt consent, how manifested. § 114. Collusion, what. § 115. Condonation, what. § IIG. Requisites of condonation. § 117. Condonation implies what. § lis. Evidence of condonation. § 119. Can only be made, when. § 120. Concealment of facts in certain cases maltes condonation void. § 121. Condonation, how revoked. § 122. Recrimination, what. § 123. Condonation, when to bar defense. § 124. Divorce, when denied. § 125. Lapse of time establishes certain presumption. § 126. Presumption may be rebutted. § 127. Limitation of time. § 128. Actions in divorce case. [Plaintiff must be resident. Cross-complaint by nonresident.] §129. Proof of actual residence required. Presumptions do not apply. § 130. Divorce by default, etc. [Not granted.] § 131. [Court must file decision.] Interlocutory judgment, wlien. § 132. Final judgment, after one year. §111. DIVORCES DENIED, ON SHOWING WHAT. Divorces must be denied upon showing: 1. Connivance; or, 2. Collusion; or, 3. Condonation; or, 4. Recrimination; or, 5. Limitation and lapse of time. History: Enacted March 21, 1S72. 40 Tit.I,ch.II,art.III.]CONNIVANCE AND COLLUSION. §§ 112-117 §112. CONNIVANCE, WHAT. Connivance is the cor- rupt consent of one party to the commission of the acts of the other, constituting the cause of divorce. History: Enacted March 21, 1872. §113. CORRUPT CONSENT, HOW MANIFESTED. Corrupt consent is manifested by passive permission, with in- tent to connive at or actively procure the commission of the acts complained of. History: Enacted March 21, 1S72. § 114. COLLUSION, WHAT. Colhision is an agreement between husband and wife that one of them shall commit, or appear to have committed, or to be represented in court as having committed, acts constituting a cause of divorce, for the purpose of enabling the other to obtain a divorce. History: Enacted March 21, 1872. §115. CONDONATION, WHAT. Condonation is the conditional forgiveness of a matrimonial offense constituting a cause of divorce. History: Enacted March 21, 1S72. §116. REQUISITES TO CONDONATION. The fol- lowing requirements are necessary to condonation: 1. A knowledge on the part of the condoner of the facts constituting the cause of divorce; 2. Reconciliation and remission of the offense by the in- jured party; 3. Restoration of the offending party to all marital rights. History: Enacted March 21, 1S72. §117. CONDONATION IMPLIES WHAT. Condona- tion implies a condition subsequent; that the forgiving party must be treated with conjugal kindness. History: Enacted March 21, 1872. 41 §§118-121 CIVIL CODE. [Div.I,Pt.IIl. §118. EVIDENCE OF CONDONATION. Where the cause of divorce consists of a course of offensive conduct, or arises, in cases of cruelty, from excessive acts of ill-treatment which may, aggregately, constitute the oflfense, cohabitation, or passive endurance, or conjugal kindness, shall not be evi- dence of condonation of any of the acts constituting such cause, unless accompanied bj' an express agreement to con- done. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 190. §119. CAN ONLY BE MADE, WHEN. In cases men- tioned in the last section, condonation can be made only after the cause of divorce has become complete, as to the acts complained of. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 190. § 120. CONCEALMENT OF FACTS IN CERTAIN CASES MAKES CONDONATION VOID. A fraudulent concealment by the condonee of facts constituting a different cause of divorce from the one condoned, and existing at the time of condonation, avoids such condonation. Hiistory: Enacted March 21, 1872. § 121. CONDONATION, HOW REVOKED. Condona- tion is revoked and the original cause of divorce revived: 1. When the condonee commits acts constituting a like or other cause of divorce; or, 2. When the condonee is guilty of great conjugal unkind- ness, not amounting to a cause of divorce, but sufficiently habitual and gross to show that the conditions of condona- tion had not been accepted in good faith, or not fulfilled. History: Enacted March 21, 1872. 42 Tit.I,ch.II,art.III.] CONDONATION, REVOKING. §§122-125 § 122. RECRIMINATION, WHAT. Recrimination is a showing by the defendant of any cause of divorce against the plaintiff, in bar of the plaintiff's cause of divorce. History: Enacted March 21, 1S72. § 123. CONDONATION, WHEN TO BAR DEFENSE. 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 con- donation, and before the accruing or completion of the cause of divorce against which tlie recrimination is shown. History; Enacted March 21, 1S72; amended March 30, 1S74, Code Amdts. 1S73-4, pp. 190-191. § 124. DIVORCE, WHEN DENIED. A divorce must be denied: 1. When the cause is adultery and the action is not com- menced within two years after the commission of the act of adultery, or after its discovery by the injured party; or, 2. When the cause is conviction of felony, and the action is not commenced before the expiration of two years after a pardon, or the termination of the period of sentence. 3. In all other cases when there is an unreasonable lapse of time before the commencement of the action. Historj-: Enacted March 21, 1S72; amended March 30, 1874, Code Amdts. 1873-4, p. 191. § 125. LAPSE OF TIME ESTABLISHES CERTAIN PRESUMPTIONS. Unreasonable lapse of time is such a delay in commencing the action as establishes the presump- tion that there has been connivance, col.lusion, or condona- tion of the ofifense, or full acquiescence in the same, with in- tent to continue the marriage relation [,] notwithstanding the commission of such offense. Hi.story: Enacted March 21, 1872. 43 §§ 126-129 CIVIL CODE. [Div.T.Pt.III. §126. PRESUMPTIONS MAY BE REBUTTED. The presumptions arising from lapse of time may be rebutted by showing reasonable grounds for the delay in commencing the action. HLstory: Enacted March 21, 1872. § 127. LIMITATION OF TIME. There are no limita- tions of time for commencing actions for divorce, except such as are contained in section one hundred and twenty-four. History: Enacted March 21, 1872. § 128. ACTIONS IN DIVORCE CASES. [PLAINTIFF MUST BE RESIDENT. CROSS-COMPLAINT BY NON-RESIDENT.] A divorce must not be granted unless the plaintif? has been a resident of the state one year, and of the county in which the action is brought three months, next preceding the commencement of the action; provided, that a cross-complainant in an action for divorce need not be or have been a resident of the state or of the county in which the action is brought or pending in order to entitle such cross-complainant to a divorce in said action; and provided, further, that in an action for divorce a cross-complainant must personally verify the cross-complaint. HLstory: Enacted March 21, 1872; amended March 10, 1891, Stats, and Amdts. 1891, p. 52; April 6, 1911, Stats, and Amdts. 1911, p. 686. § 129. PROOF OF ACTUAL RESIDENCE REQUIRED. PRESUMPTIONS DO NOT APPLY. In actions for di- vorce the presumption of law, that the domicile of the hus- band is the domicile of the wife, does not apply. After sep- aration, each may have a separate domicile, depending for proof upon actual residence, and not upon legal presump- tions. History: Enacted March 21, 1872. 44 Tit.I,ch.II,art.III.] INTERLOCUTORY JUDGMENT. §§ 130-132 §130. DIVORCE BY DEFAULT, ETC. [NOT GRANTED]. No divorce can be granted upon the default of the defendant, or upon the uncorroborated statement, ad- mission, or testimony of the parties, or upon any statement or finding of fact made by referee; but the court must, in addition to any statement or finding of the referee, require l)roof of the facts alleged, and such proof, if not taken before ' the court, must be upon written questions and answers. History: Enacted March 21, 1S72; amended March P.O, 1S7-1, Code Amdts. 1873-4, p. 191. §131. [COURT MUST FILE DECISION.] INTER- LOCUTORY JUDGMENT, WHEN. In actions for divorce, the court must file its decision and conclusions of law as in other cases, and if it determines that #io divorce shall be granted, final judgment must thereupon be entered accord- ingly. If it determines that the divorce ought to be granted, an interlocutory" judgment must be entered, declaring that the party in whose favor the court decides is entitled to a divorce. After the entry of the interlocutory judgment, neither party shall have the right to dismiss the action with- out the consent of the other. History: Enacted March 2, 1903, Stats, and Amdts. 1903, p. 7.5; amended April 16, 1909, Stats, and Amdts. 1909, p. 491; April 24, 1915, Stats, and Amdts. 1915, p. 209. In effect August 8, 1915. § 132. FINAL JUDGMENT, AFTER ONE YEAR. When one year has expired after the entry of such inter- locutory judgment, the court on motion of either party, or upon its own motion, may enter the final judgment granting the divorce, and such final judgment shall restore them to the status of single persons, and permit either to marry after the entry thereof; and such other and further relief as may 1)6 necessary to complete disposition of the action, but 45 §132 CIVIL CODE. [Div.I.Pt.lIl. If any appeal is taken from the interlocutory judgment or motion for a new trial made, final judgment shall not be en tered until such motion or appeal has been finally disposed of, nor then, if the motion has been granted or judgment re- versed. The death of either party after the entry of the interlocu- tory judgment does not impair the power of the court to en- ter final judgment as hereinbefore provided; but such entry shall not validate any marriage contracted by either party be- fore the entry of such final judgment, nor constitute any de- fense of any criminal prosecution made against either. History: Enacted March 2, ]903, Stats, and Amdts. 1903, p. 76. 46 Tit.I,ch.II,art.IV.] RELIEF, HOW GIVEN. §§ 136, 137 ARTICLE IV. GENERAL PROVISIONS. § 136. Relief may be adjudged in some cases, wliere separation is denied. § 137. Expenses of action for divorce. [Alimony.] § 138. Orders respecting custody of children. § 139. Support of wife and children on divorce or separation granted wife. § 140. Security for maintenance and alimony. § 141. Court shalL resort to what, in executing certain sections. § 142. If wife has sufficient for her support, court may with- hold allowance. §143. Community and separate property may be subjected to support. § 144. Legitimacy of issue. [Divorce for adultery of husband.] § 145. Same. [Divorce for adultery of wife.] § 146. Disposition of community property. § 147. Same. [Duty of court to dispose of.] § 148. Same. [Subject to revision on appeal.] § 136. RELIEF MAY BE ADJUDGED IN SOME CASES, WHERE SEPARATION IS DENIED. Though judgment of divorce is denied, the court may, in an action for divorce, provide for the maintenance by the husband, of the wife and children of the marriage, or any of them. Historj-: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 337, held unconstitutional; see history, § 4 ante; amended March 21, 1905, Stats, and Amdts. 1905, p. 634. §137. EXPENSES OF ACTION FOR DIVORCE. [ALIMONY.] When an action for divorce is pending, the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself and her children, or to prosecute or defend the action. 47 §138 CIVIL CODE. [Div.I,Pt.III. [Permanent support.] When the husband wilfully deserts the wife or when the husband wilfully fails to provide for the wife or when the wife has any cause of action for divorce as provided in section ninety-two of this code, she may, without applying for a divorce, maintain in the superior court an action against him for permanent support and main- tenance of herself or of herself and children. During the pendency of such action the court may, in its discretion, re- quire the husband to pay as alimony any money necessary for the prosecution of the action and for support and main- tenance, and execution may issue therefor in the discretion of the court. The final judgment in such action may be en- forced by the court by such order or orders as in its discre- tion it may from time to time deem necessary, and such or- der or orders may be varied, altered, or revoked at the dis- cretion of the court. [In effect when.] Sec. 2. This act shall take effect and be in force immediately upon its passage and approval. History: Enacted March 21, 1872; amended March 20, 1878, Code Amdts. 1877-8, p. 76; April 6, 1880, Code Amdts. (C. C. pt.), p. 4; March 18, 1905, Stats, and Amdts. 1905, c. CCXVI, p. 205; amended March 1, 1907, Stats, and Amdts. 1907, p. 82, Kerr's Stats, and Amdts. 1906-7, p. 400. § 138. ORDERS RESPECTING CUSTODY OF CHIL- DREN. In actions for divorce the court may. during the pendency of the action, or at the final hearing or at any time thereafter during the minority of anj' of the children of the marriage, make such order for the custody, care, educa- tion, maintenance and support of such minor children as may seem necessary or proper, and may at any time modify or vacate the same. Hi-story: Enacted March 21, 1872; amended March 3, 1905, Stats, and Amdts. 1905, p. 43. 48 Tit.I,ch.II,art.IV.] SUPPORT— SECURITY FOR. §§ 139-142 §139. SUPPORT OF WIFE AND CHILDREN ON DIVORCE OR SEPARATION GRANTED TO WIFE. Where a divorce is granted for an ofifense of the hnsband, the court maj' compel him to provide for the maintenance of the children of the marriage, and to make such suitable al- lowance to the wife for her support, during her life, or for a shorter period, as the court may deem just, having regard to the circumstances of the parties respectively; and the court may, from time to time, modify its orders in these re- spects. History: Enacted March 21, 1872. §140. SECURITY FOR MAINTENANCE AND ALI- MONY. The court may require the husband to give rea- sonable security for providing maintenance or making any payments required under the provisions of this chapter, and may enforce the same by the appointment of a receiver, or by any other remedy applicable to the case. History: Enacted March 21, 1S72. § 141. COURT SHALL RESORT TO WHAT, IN EXE- CUTING CERTAIN SECTIONS. In executing the five preceding sections the court must resort: 1. To the community property; then, 2. To the separate propert}- of the husband. History: Enacted March 21, 1872. §142. IF WIFE HAS SUFFICIENT FOR HER SUP- PORT, COURT MAY WITHHOLD ALLOWANCE. \\'hen the wife has either a separate estate, or there is com- munity property sufficient to give her alimony or a proper support, the court, in its discretion, may withhold any allow- ance to her out of the separate property of the husband. History: Enacted March 21, 1872. 49 §§143-146 CIVIL CODE. [Div.I.Pt.III. § 143. COMMUNITY AND SEPARATE PROPERTY MAY BE SUBJECTED TO SUPPORT AND EDUCATE CHILDREN. The community property and the separate property may be subjected to the support and education of the children in such proportions as the court deems just. History: Enacted March 21, 1S72. § 144. LEGITIMACY OF ISSUE. [DIVORCE FOR ADULTERY OF HUSBAND.] When a divorce is granted for the adultery of the husband, the legitimacy of children of the marriage begotten of the wife before the commence- ment of the action is not afifected. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 338, held unconstitutional; see history, § 4 ante. § 145. SAME. [DIVORCE FOR ADULTERY OF WIFE.] When a divorce is granted for the adultery of the wife, the legitimacy of children begotten of her before the commission of the adultery is not afifected; but the legiti- macy of other children of the wife may be determined by the court, upon the evidence in the case. History: Enacted March 21, 1872. § 146. DISPOSITION OF COMMUNITY PROPERTY. In case of the dissolution of the marriage by the decree of a court of competent jurisdiction, the community property, and the homestead, shall be assigned as follows: 1. If the decree be rendered on the ground of adultery, or extreme cruelty, the community property shall be assigned to the respective parties in such 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 propert}^ shall be equally divided between the parties. SO Tit.I,ch.II,art.IV.] COMMUNITY PROPERTY. §§147,148 3. If a homestead has been selected from the community propert}', it may be assigned to the innocent party, either absolute!}' or for a limited period, subject, in the latter case, to the future disposition of the court, or it may, in the dis- cretion of the court, be divided, or be sold and the proceedti 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. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, pp. 191, 192; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 338, held un- constitutional; see history, § 4 ante. § 147. SAME. [DUTY OF COURT TO DISPOSE OF.] The court, in rendering a decree of divorce, must make such order for the disposition of the community property, and of the homestead, as in this chapter provided, and, whenever necessary for that purpose, -may order a partition or sale of the property and a division or other disposition of the pro- ceeds. History: Enacted March 21. 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 192. § 148. SAME. [SUBJECT TO REVISION ON AP- PEAL.] The disposition of the community property, and of the homestead, as above provided, is subject to revision on appeal in all particulars, including those which are stated to be in the discretion of the court. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 192. 51 §155 CIVIL CODE. [Div.T.Pt.TTI. CHAPTER III. HUSBAND AND WIFE. § 155. § 156. § 157. § 158. § 159. § 160. § 161. § 162. § 163. § 164. § 165. § 166. § 167. § 16S. § 169. § 171a § 172 § 173 § 174 § 175 § 176 § 177 § 178 § 179 § ISO § 181 Mutual obligations of husband and wife. Rights of husband, as head of family. In other respects their Interests separate. Husband and wife may make contracts. How far may impair their legal obligations. Consideration for agreement of separation. May be joint tenants, etc. Separate property of the wife. Separate property of the husband. Community property. Conveyances of real property to and by married women. Time limit for bringing ac- tion. Inventory of separate property of wife. Filing inventory notice of wife's title. Community property, contracts by wife. Earnings of wife not liable for debts of husband. Earnings of wife, when living separate, separate prop- erty. Liability for debts of wife contracted before marriage. Wife's property not liable for debts of the husband, buL liable for her own debts. Torts of married "woman. Power of the husband over community property. Courtesy and dower not allowed. Support of wife. Husband not liable for support when abandoned by wife. Wlien wife must support husband. Rights of husband and wife governed by what. Marriage settlement contracts, how executed. Same. To be acknowledged and recorded. Effect of recording. Minors may make marriage settlements. § 155. MUTUAL OBLIGATIONS OF HUSBAND AND WIFE. Husband and wife contract towards each other obligations of mutual respect, fidelity, and support. History: Enacted March 21, 187: 52 Tit. I, ch. TIL] KTGHTS OF HUSBAND— CONTRACTS. §§156-160 § 156. RIGHTS OF HUSBAND, AS HEAD OF KAM- ILY. The husband is the head of the family. He may choose any reasonable place or mode of living, and the wife must conform thereto. History: Enacted Marcli 21. 1872. § 157. IN OTHER RESPECTS THEIR INTERESTS SEPARATE. Neither husband nor wife has any interest in the property of the other, but neither can be excluded from the other's dwelling. Hi-story: Enacted March 21, 1S72. § 158. HUSBAND AND WIFE MAY MAKE CON- TRACTS. Either husband or wife may enter into any en- gagement or transaction with the other, or with any other person, respecting property, which either might if unmar- ried; subject, in transactions between themselves, to the general rules which control the actions of persons occupying confidential relations with each other, as defined by the title on trusts. History; Enacted March 21, 1872. § 159. HOW FAR MAY ALTER THEIR LEGAL RE- LATIONS. A husband and wife cannot, by any contract with each other, alter their legal relations, except as to prop- erty, and except that they may agree, in writing, to an im- mediate separation, and may make provision for the sup- port of either of them and of their children during such sep- aration. History:, Enacted March 21, 1872; amended March 30, 1874. Code Amdts. 1873-4, p. 193. §160. CONSIDERATION FOR AGREEMENT OF SEPARATION. The mutual consent of the parties is a 53 §§161-164 CIVIL CODE. Div.I,Pt.IlI. sufficient consideration for such an agreement as is men- tioned in the last section. History: Enacted March 21, 1872. § 161. MAY 3E JOINT TENANTS, ETC. A husband and wife may hold property as joint tenants, tenants in com- mon, or as community property. History: Enacted March 21, 1872; amended by Code Commis- sioners, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 338; held unconstitutional; see history, § 4 ante. § 162. SEPARATE PROPERTY OF THE WIFE. All property of the wife, owned by her before marriage, and that acquired afterwards by gift, bequest, devise, or descent, with the rents, issues, and profits thereof, is her separate property. The wife may, without the consent of her husband, convey her separate property. History: Enacted March 21, 1872. §163. SEPARATE PROPERTY OF THE HUSBAND. All property owned by the husband before marriage, and that acquired afterwards by gift, bequest, devise, or descent, with the rents, issues, and profits thereof, is his separate property. History: Enacted March 21, 1872. § 164. COMMUNITY PROPERTY. CONVEYANCES OF REAL ESTATE TO AND BY MARRIED WOMEN. TIME LIMIT FOR BRINGING ACTION. All other prop- erty acquired after marriage by either husband or wife, or both, is community property; but whenever any property is conveyed to a married woman by an instrument in writ- ing, 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 54 Tit.I.ch.IIL] INVENTORY OF PROPERTY. §§ 165, 166 Other person, the presumption is that the married woman takes the part conveyed to her, as tenant in common, unless a different intention is expressed in the instrument, and the presumption in this section mentioned is conclusive in favor of a purchaser or encumbrancer in good faith and for a valu- able consideration. And in cases Where married women have conveyed, or shall hereafter convey, real property which they acquired prior to May nine- teenth, eighteen hundred and eighty-nine, the husbands, or their heirs or assigns, of such married women, shall be barred from commencing or maintaining any action to show that said real propert}^ was community propertj^, or to recover said real property, as follows: As to convejances heretofore made, from and after one year from the date of the taking effect of this act; and as to conveyances hereafter made, from and after one year from the filing for record in the recorder's office of such convej'ances, respectively. . History: Enacted March 21, 1872; amended March 19, 1SS9, Stats, and Amdts. 1S89, p. 32,8; March 3, 1893, Stats, and Aindts. 1893, p. 71; March 4, 1897, Stats, and Amdts. 1897, p. 63; by Code Commissioners, Act March 16. 1900-1, p. 193; held, unconstitu- tional, see history, § 4 ante. § 165. INVENTORY OF SEPARATE PROPERTY OF WIFE. A full and complete inventory of the separate per- sonal property of the wife may be made out and signed by her, acknowledged or proved in the manner required by law for the acknowledgment or proof of a grant of real property b}^ an unmarried woman, and recorded in the office of the recorder of the county in which the parties reside. History: Enacted March 21, 1872. § 166. FILING INVENTORY NOTICE OF WIFE'S TITLE, ETC. The filing of the inventory in the recorder's office is notice and prima facie evidence of the title of the wife. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 193. 55 §§167-171 CIVIL CODE. [Div.I,rt.III. § 167. COMMUNITY PROPERTY, CONTRACTS BY WIFE. The property of the community is not liable for the contracts of the wife, made after marriage, unless secured by a pledge or mortgage thereof executed by the husband. HLstory: Enacted March 21, 1872; amended March 30, 1S74, Code Anidts. 1S73-4, p. 193. § 168. EARNINGS OF WIFE NOT LIABLE FOR DEBTS OF HUSBAND. The earnings of the wife are not liable for the debts of the husband. History: Enacted March 21, 1872. § 169. EARNINGS OF WIFE, WHEN LIVING SEP- ARATE, SEPARATE PROPERTY. The earnings and ac- cumulations 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. Hi.storj-: Enacted March 21, 1S72. § 170. LIABILITY FOR DEBTS OF WIFE CON- TRACTED BEFORE MARRIAGE. The separate property of the husband is not liable for the debts of the wife con- tracted before the marriage. Historj': Enacted Marcli 21, 1S72; amended by Code Commis- sioners, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 193; ,held unconstitutional, see liistory, § 4, ante. § 171. WIFE'S PROPERTY NOT LIABLE FOR DEBTS OF THE HUSBAND, BUT LIABLE FOR HER OWN DEBTS. The separate property of the wife is liable for her own debts contracted before or after her marriage, but is not liable for her husband's debts; provided, that the separate property of the wife is liable for the pajment of debts contracted by the husband or wife for the necessaries of life furnished to them or either of them while they are 56 Tit. I, ch. III.] TORTS OF MARRIED WOMAN. §§171a-173 living together; provided, that the provisions of the fore- going proviso shall not apply to the separate property of the wife held by her at the time of her marriage or acquired by her by devise, succession, or gift, other than by gift from the husband, after marriage. History: Enacted March 21, 1S72; amended March 18, 1905, Stats, and Amdts. 1905, p. 206; May 29, 1915, Stats, and Amdts. 1915, p. 920. lu effe»-t August S, 1915. § 171a. TORTS OF MARRIED WOMAN. For civil in- juries committed by a married woman, damages may be re- covered from her alone, and her husband shall not be liable therefor, except in cases where he would be jointly liable with her if the marriage did not exist. Histciry: Enacted May 21, 1913, Stats, and Amdts. 1913, p. 217. In effect August 10, 1913. §172. POWER OF HUSBAND OVER COMMUNITY PROPERTY. The husband has the management and con- trol of the community property, with the like absolute power of disposition, other than testamentary, as he has of his sep- arate estate; provided, however, that he cannot make a gift of such community property, or convey the same without a valuable consideration, unless the wife, in writing, consent thereto; and provided also, that no sale, conveyance or en- cumbrance of the furniture, furnishings and fittings of the home, or of the clothing and wearing apparel of the wife or minor children, which is community property shall be made without the written consent of the wife. History: Enacted March 21, 1872; amended March 31, 1891, Stats, and Amdts. 189 1, p. 425; March 23, 1901, Stats, and Amdts. 1900-1, p. 598. §173. COURTESY AND DOWER NOT ALLOWED. No estate is allowed the husband as tenant by courtesy- upon 57 §§ 174-176 CIVIL CODE. V [Div.I.Pt.III. the death of his wife, nor is any estate in dower allotted to the wife upon the death of her husband. History: Enacted March 21, 1872. The Act of April 17, 1S50, § 10 (Stats. 1850, ch. 103, p. 254), contained the same provision. — See Beard vs. Knox, 6 Cal. 252, 756, 63 Am. Dec. 125; Panaud vs. Jones, 1 Cal. 488, 513. § 174. SUPPORT OF WIFE. If the husband neglect to make adequate provision for the support of his wife, except in the cases mentioned in the next section, any other person may, in good faith, supply her with articles necessary for her support, and recover the reasonable value thereof from the husband. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 193. § 175. HUSBAND NOT LIABLE FOR SUPPORT WHEN ABANDONED BY WIFE. A husband abandoned by his wife is not liable for her support until she ofifers to re- turn, unless she was justified, by his misconduct, in abandon- ing him; nor is he liable for her support when she is living separate from him, by agreement, unless such support is stipulated in the agreement. History: Enacted Marcli 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 193. § 176. WIFE TO SUPPORT HUSBAND, WHEN. 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 cominunit}^ property, and he is unable, from infirmit}', to support himself. Historj-: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 194. 58 Tit. I. ch. III.] MARRIAGE SETTLEMENT. §§ 177-181 § 177. RIGHTS OF HUSBAND AND WIFE GOV- ERNED BY WHAT. The property rights of husband and wife are governed by this chapter, unless there, is a mar- riage settlement containing stipulations contrary thereto. History: Enacted March 21, 1872. § 178. MARRIAGE SETTLEMENT CONTRACTS, HOW EXECUTED. All contracts for marriage settlements must be in writing, and executed and acknowledged or proved in like manner as a grant of land is required to be executed and acknowledged or proved. History: Enacted March 21, 1872. S 179. SAME. TO BE ACKNOWLEDGED AND RE- CORDED. When such contract is acknowledged or proved, it must be .recorded in the office of the recorder of every county in which any real estate may be situated which is granted or affected by such contract. History: Enacted March 21, 1S72. § 180. EFFECT OF RECORDING. The recording or non-recording of such contract has a like efifect as the re- cording or non-recording of a grant of real property. History: Enacted March 21, 1S72. § 181. MINORS MAY MAKE MARRIAGE SETTLE- MENTS. A minor capable of contracting marriage may make a valid marriage settlement. History: Enacted March 21, 1S72. 59 § 193 CIVIL CODE. [Div.I.Pt.lIl. ' TITLE II. PARENT AND CHILD Chapter I. By Birth, §§ 193-215. II. By Adoption, §§221-230. CHAPTER I. CHILDREN BY BIRTH. § 193. Legitimacy of children born in wedlock. § 194. Children after dissolution of marriage. § 195. Who may dispute the legitimacy of a cliild. § 196. Obligation of parents for tlie support and education of their children. § 196a. Support of illegitimate child. § 197. Custody of legitimate child. § 198. Husband and wife living separate, neither to have su- perior right to custody of children. § 199. When husband or wife may bring action for the exclus- ive control of children. Decree in such cases. § 200. Custody of an illegitimate child. § 201. Allowance to parent. § 202. Parent cannot controT the property of child. § 203. Remedy for parental abuse. § 204. When parental authority ceases. § 205. Remedy when a parent dies without providing for the support of his child. § 206. Reciprocal duties of parents and cliildren in maintaining each other. § 207. When a parent is liable for necessaries supplied to a child. § 208. When a parent is not liable for support furnislied 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. Pareht may relinquish services and custodj' of child. §212. Wages of minors. 60 Tit.II,ch.I.] I.EGITIMACY OF CHILDREN. §§193-196 § 213. Right of parent to determine residence of child. § 214. Wife in certain cases may obtain custody of minor chil- dren. § 215. When child becomes legitimate. § 193. LEGITIMACY OF CHILDREN BORN IN WED- LOCK. All children born in wedlock are presumed to be legitimate. Hi-story: Enacted March 21, 1872; amended by Code Commis- sion, Act March 26, 1901, Stats, and Amdts. 1900-1, p. 339, held unconstitutional; see history, §4 ante. § 194. CHILDREN AFTER DISSOLUTION OF MAR- RIAGE. All children of a woman who has been married, l)orn within ten months after the dissolution of the marriage, are presumed to be legitimate children of that marriage. Hi.story: Enacted March 21, 1S72; amended Marcli 30, 1874, Code Amdts. 1873-4, p. 194. § 195. WHO MAY DISPUTE THE LEGITIMACY OF A CHILD. The presumption of legitimacy can be disputed only by the husband or wife, or the descendant of one or both of them. Illegitimacy, in such case, may be proved like any other fact. Hi.st«.ry: Enacted March 21, 1872. § 196. OBLIGATION OF PARENTS FOR THE SUP- PORT AND EDUCATION OF THEIR CHILDREN. The parent entitled to the custody of a child must give him sup- port and education suitable to his circumstances. If the sup- port and education which the father of a legitimate child is able to give are inadeciuatc, the mother must assist him to the extent of her ability. History: Enacted March 21, 1872. 61 §§ 196a-199 CIVIL CODE. [Div.I.Pt.III. §196a. SUPPORT OF ILLEGITIMATE CHILD. The father as well as the mother, of an illegitimate child must give him support and education suitable to his circumstances. A civil suit to enforce such obligations may be maintained in behalf of a minor illegitimate child, by his mother or guar- dian, and in such action the court shall have power to order and enforce performance thereof, the same as under sections one hundred and thirty-eight, one hundred and thirty-nine and one hundred and forty of the Civil Code, in a suit for di- vorce by a wife. HLstory: Enacted May 22, 1913, Stats, and Amdts. 1913, p. 21S. In effect August 10, 1913. § 197. CUSTODY OF LEGITIMATE CHILD. The father and mother of a legitimate unmarried minor child are equally entitled to its custody, services and earnings. If either the father or mother be dead or unable or refuse to take the custody or has abandoned his or her family, the other is entitled to its custody, services and earnings. History: Enacted March 12, 1S72; amended March 30, 1874, Code Amdts. 1S73-4, p. 194; April 22, 1913, Stats, and Amdts. 1913, p. 52. lu effect August 10, 1913. § 198. HUSBAND AND WIFE LIVING SEPARATE, NEITHER TO HAVE SUPERIOR RIGHT TO CUS- TODY OF CHILDREN. The husband and father, as such, has no rights superior to those of the wife and mother, in re- gard to the care, custody, education, and control of the chil- dren of the marriage, while such husband and wife live sep- arate and apart from each other. Hi.story: Enacted March 21, 1872. §199. WHEN HUSBAND OR WIFE MAY BRING ACTION FOR THE EXCLUSIVE CONTROL OF CHIL- DREN. DECREE IN SUCH CASES. Without application for a divorce, the husband or the wife may bring an action 62 Tit. II, ch. I.] ILLEGITIMATE CHILD— CUSTODY. §§200-203 for the exclusive control of the children of the marriage; and the court may, during the pendency of such action, or at the final hearing thereof, or afterwards, make such order or decree in regard to the support, care, custody, education, and control of the children of the marriage, as may be just, and in accordance with the natural rights of the parents and the best interests of the children, and may at any time there- after amend, vary, or modify such order or decree, as the natural rights and the interests of the parties, including the children, may require. History: Enacted March 21, 1S72. §200. CUSTODY OF AN ILLEGITIMATE CHILD. The mother of an illegitimate unmarried minor is entitled to its custody, services, and earnings. History: Enacted March 21, 1872. §201. ALLOWANCE TO PARENT. The proper court may direct an allowance to be made to the parent of a child, out of its property, for its past or future support and educa- tion, on such conditions as may be proper, whenever such direction is for its benefit. History: Enacted March 21, 1ST2. §202. PARENT CANNOT CONTROL PROPERTY OF CHILD. The parent, as such, has no control over the prop- erty of the child. History: Enacted March 21, 1872. §203. REMEDY FOR PARENTAL ABUSE. 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 63 §§204-206 CIVIL CODE. [Div.I,Pt.III. the child resides; and when the abuse is established, the child may be freed from the dominion of the parent, and the duty of support and education enforced. Hi-story: Enacted March 21, 1872. §204. WHEN PARENTAL AUTHORITY CEASES. The authority of a parent ceases: 1. Upon the appointment, by a court, of a guardian of the person of a child; 2. Upon the marriage of the child; or, 3. Upon its attaining majority. History: Enacted March 21, 1872. §205. REMEDY WHEN A PARENT DIES WITH- OUT PROVIDING FOR THE SUPPORT OF HIS CHILD. If a parent chargeable with the support of a child dies, leaving it chargeable to the county, and leaving an es- tate sufficient for its support, the supervisors of the county may claim provision for its support from the parent's estate by civil action, and for this purpose may have the same rem- edies as any creditors against that estate, and against the heirs, devisees, and next of kin of the parent. History: Enacted March 21, 1872. §206. RECIPROCAL DUTIES OF PARENTS AND CHILDREN IN MAINTAINING EACH OTHER. It is the duty of the father, the mother, and the children of any poor person who is unable to maintain himself by work, to maintain such person to the extent of their ability. The promise of an adult child to pay for necessaries previouslj- furnished to such parent is binding. History: Enacted March 21, 1S72. 64 Tit.TI.ch.T.] LIABILITY FOR NECESSARIES. §§207-211 §207. WHEN A PARENT IS LIABLE FOR NECES- SARIES SUPPLIED TO A CHILD. If a parent neglects to provide articles necessary for his child who is under his charge, according to his circumstances, a third person may in good faith supply such necessaries, and recover the rea- sonable value thereof from the parent. History: Enacted March 21, 1S72. §208. WHEN A PARENT IS NOT LIABLE FOR SUPPORT FURNISHED HIS CHILD. A parent is not bound to compensate the other parent, or a relative, for the voluntary support of his child, without an agreement for com- pensation, nor to compensate a stranger for the support of a child who has abandoned the parent without just cause. History: Enacted March 21, 1872. §209. HUSBAND NOT BOUND FOR THE SUPPORT OF HIS WIFE'S CHILDREN BY A FORMER MAR- RIAGE. A husband is not bound to maintain his wife's children by a former husband; but if he receives them into his family and supports them, it is presumed that he does so as a parent, and, where such is the case, they are not liable to him for their support, nor he to them for their services. History: Enacted March 21, 1872. §210. COMPENSATION AND SUPPORT OF ADULT CHILD. Where a child, after attaining majority, continues to serve and to be supported by the parent, neither party is entitled to compensation, in the absence of an agreement tlierefor. History: Enacted March 21, 1S72. §211. PARENT MAY RELINQUISH SERVICES AND CUSTODY OF CHILD. The parent, whether solvent or in- solvent, may relinquish to the child the right of controlling him and receiving his earnings. Abandonment by the parent is presumptive evidence of such relinquishment. History: Enacted March 21, 1872. 3 65 §§212-215 CIVIL CODE. [Div.I.Pt.III. §212. WAGES OF MINOR. The wages of a minor em- ployed in service may be paid to him, until the parent or guardian entitled thereto gives the employer notice that he claims such wages. History: Enacted March 21, 1872; amended Match 30, 1874, Code Amdts. 1873-4, p. 194. §213. RIGHT OF PARENT TO DETERMINE THE RESIDENCE OF CHILD. A parent entitled to the cus- tody of a child has a right to change his residence, subject to the power of the proper court to restrain a removal which would prejudice the rights or welfare of the child. History: Enacted March 21, 1872. §214. WIFE IN CERTAIN CASES MAY OBTAIN CUSTODY OF MINOR CHILDREN. When a husband and wife live in a state of separation, without being di- vorced, any court of competent jurisdiction, upon application of either, if an inhabitant of this state, may inquire into the custody of any unmarried minor child of the marriage, and may award the custody of such child to either, for such time and under such regulations as the case may require. The de- cision of the court must be guided by the rules prescribed in section two hundred and forty-six. History: Enacted March 21, 1872. §215. WHEN CHILD BECOMES LEGITIMATE. A child born before wedlock becomes legitimate by the sub- sequent marriage of its parents. History: Enacted March 30, 1874, Code Amdts. 1S73-4, p. 195. 66 Tit. II, ch. II.] ADOPTION— CONSENT. §§221-223 CHAPTER II. ADOPTION. § 221. Child may be adopted. § 222. Who may adopt. § 223. Consent to adoption [by wife], § 224. Adoption of children. Consent necessary. Orphans and abandoned children. § 225. Consent of child. § 226. Proceedings on adoption. § 227. Judge's order in adoption proceedings. § 228. Effect of adoption. § 229. Effect on former relations of child. § 230. Adoption of illegitimate child. §221. CHILD MAY BE ADOPTED. Any minor child may be adopted by any adult person, in the cases and sub- ject to the rules prescribed in this chapter. History: Enacted March 21, 1872. §222. WHO MAY ADOPT. The person adopting the child must be at least ten years older than the person adopt- ed. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 195. §223. CONSENT TO ADOPTION [BY WIFE.] A married man, not lawfully separated from his wife, cannot adopt a child without the consent of his wife, nor can a married woman, not thus separated from her husband, with- out his consent, provided the husband or wife, not consent- ing, is capable of giving such consent. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 195. €1 §224 CIVIL CODE. [Div.I.Pt.III. §224. ADOPTION OF CHILDREN. CONSENT NEC- ESSARY. ORPHANS AND ABANDONED CHILDREN. A legitimate child can not be adopted without the consent of its parents, if living; nor an illegitimate child without the consent of its mother, if living; except that consent is not necessary from a father or mother deprived of civil rights, or adjudged guilty of adultery or cruelty, and for either cause divorced, or adjudged to be habitually intemper- ate in the use of intoxicants, or who has been judicially de- prived of the custody of the child on account of cruelty or neglect. [Abandoned child.] Neither is consent of any parent nec- essary in case of any abandoned child. Any child deserted by its parents without provision for their identification, or relinquished by its parent or parents for the purpose of adop- tion expressed in writing signed and acknowledged by such parent or parents before an officer authorized to take ac- knowledgments, or before the secretary of any organization or society engaged in the work of placing dependent or de- serted children into homes in this state, which organization or society has obtained a permit therefor, duly executed in writing, from the state board of charities and corrections, shall from the date of such act of desertion or of such re- linquishment be deemed to be an abandoned child within the meaning of this section. Any child left in the care and custody of another by its parent or parents, without any pro- vision for its support, for the period of one year, may after such notice to the parent or parents residing within the state and to such other relatives of said child residing within the county as the court shall require, be determined by order of the juvenile court of the county in which said child was so left to be an abandoned child within the terms of this section. [Child in orphan asylum.] Any abandoned child within the meaning of this section, or any child whose parent or par- ents have been judicially deprived of its c;.istody on account 68 Tit.II,ch.II.] ADOPTION — CONSENT OF CHILD. §§225,226 of cruelty or neglect, maintained by or in the custody of any orphan asykim within this state, any charitable organization or society receiving state aid or receiving commitments from the juvenile court, may be adopted with the consent of the managers of such orphan asylum, charitable organization or society. Any orphan child for whose support no provision has been made by any person for a period of one year, but who has been maintained during said year by or in the cus- tody of any orphan asylum within this state, any charitable organization or society receiving state aid or receiving com- mitments from the juvenile court, may be adopted with the consent of the managers of such orphan asylum, charitable organization or society. History: Enacted March 21, 1872; amended March 2, 1891, Stats, and Amdt.s. 1891, p. 24; March 9, 1893, Stats, and Amdts. 1893, p. 39; by Code Commission Act March 16, 1901, Stats, and Amdts. 1900-1, p. 339, held unconstitutional^ see Kerr's Cyc. C. C. §4; March 10, 1903, Stats, and Amdts. 1903, p. 114; March 16, 1907, Stats, and Amdts. 1907, p. 331, Kerr's Stats, and Amdts. 1906-7, p. 400; April 12, 1911, Stats, and Amdts. 1911, p. 899; April 26, 1913, Stats, and Amdts. 1913, p. 95. In effecf August 10, 1913. §225. CONSENT OF CHILD. The consent of a child, if over the age of twelve years, is necessary to its adoption. History: Enacted March 21, 1S72. §226. PROCEEDINGS ON ADOPTION. Any person desiring to adopt a child may, for that purpose, petition the superior court of the county in which the petitioner resides. The person adopting a child, and the child adopted, and the other persons, if within or residents of said county, whose consent is necessary, must appear before the court, and the necessary consent must thereupon be signed and an agree- ment executed by the person adopting, to the effect that the child shall be adopted and treated in all respects as his own lawful child should be treated. If the persons whose 69 §§227,228 CIVIL CODE. [Div.I.Pt.III. consent is necessary are not within or are not residents of said county, then their written consent, duly proved or ac- knowledged, according to sections eleven hundred and eighty- two and eleven hundred and eighty-three must be filed in said superior court at the time of the application for adop- tion. History: Enacted March 21, 1872; amended Feb. 9, 1S76; Code Amdts. 1875-6, p. 70; April 6, 1880, Code Amdts. 1880 (C. C. pt.), p. 4; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 339, held unconstitutional, see history, § 69 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 555; amended March 16, 1907, Stats, and Amdts. 1907, p. 329, Kerr's Stats, and Amdts. 1906-7, p. 401. lu effect immediately. §227. JUDGE'S ORDER IN ADOPTION PROCEED- INGS. The court must examine all persons appearing be- fore it pursuant to the last section, each separately, and if satisfied that the interests of the child will be promoted by the adoption, it must make an order declaring that the child shall thenceforth be regarded and treated in all respects as the child of the person adopting. The petition, agreement, consent, arid order must be filed and registered in the ofifice of the county clerk in the same manner as papers in other special proceedings. Hi.story: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 340, held unconstitutional; see history, § 4 ante; re-enacted March 21. 1905, Stats, and Amdts. 1905, p.' 556. §228. EFFECT OF ADOPTION. A child, when adopt-^ ed, may take the family name of the person adopting. After adoption, the two shall sustain towards each other the legal relation of parent and child, and have all the rights and be subject to all the duties of that relation. Historj-: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 195. 70 Tit.II.ch.IL] EFFECT OF ADOPTION. §§229,230 §229. EFFECT ON FORMER RELATIONS OF CHILD. The parents of an adopted child are, from the time of the adoption, relieved of all parental duties towards, and all responsibility for, the child so adopted, and have no right over it. Hi.'story: Enacted March 21, 1872. §230. ADOPTION OF ILLEGITIMATE CHILD. The father of an illegitimate child, by publicly acknowledgi^ig it as his own, receiving it as such, with the consent of his wife, if he is married, into his fkmily, 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. History: Enacted March 21, 1872. §236 CIVIL CODE. [Div.I.Pt.Iir. TITLE III. GUARDIAN AND WARD. [Under this head the Code Commissioners placed not only the provisions relating to the guardianship of the person and estate of minors, but also those relating to the custody and care of the person and property of persons of unsound mind. "Com- mittee" of a lunatic is termed "guardian."] § 236. Guardian, what. § 237. Ward, what. § 23S. Kinds of guardians. § 239. General guardian, what. § 240. Special guardian, what. § 241. Guardian appointed by will, etc. § 242. No person guardian of estate without appointment [re- pealed]. § 243. Appointment of guardian by court [repealed]. § 244. Rules for awarding custody [repealed]. § 245. Jurisdiction [repealed]. § 246. Rules for awarding the custody, or appointing a general guardian of minors. § 247. Powers of guardian appointed by court [repealed]. § 248. Duties of guardian of the person [repealed]. § 249. Duties of guardian of estate [repealed]. § 250. Relation confidential. § 251. Guardian under direction of court. § 252. Death of a joint guardian. § 253. Removal of guardian § 254. Guardian appointed by parent, how superseded. § 255. Suspension of power of guardian. § 256. Release by ward. § 257. Guardian's discliarge. § 258. Insane persons [repealed]. § 236. GUARDIAN, WHAT. A guardian is a person ap- pointed to take care of the person or property of another. History: Enacted March 21, 1872. 72 Tit. 111.] GUARDIANS— KINDS OF. §§237-242 § 237. WARD, WHAT. The person over whom or over whose property a guardian is appointed, is called his ward. Hi-slory: Enacted March 21, 1872. §238. KINDS OF GUARDIANS. Guardians are either: 1. General; or, 2. Special. History: Enacted March 21, 1S72. §239. GENERAL GUARDIAN, WHAT. A general guardian is a guardian of the person or of all the property of the ward within this state, or of both. History: Enacted March 21, 1872. §240. SPECIAL GUARDIAN, WHAT. Every other is a special guardian. History: Enacted March 21, 1872. §241. GUARDIAN APPOINTMENT BY WILL, ETC. A guardian of the person or estate, or of both, of a child born, or likely to be born, may be appointed by will or by deed, to take efifect upon the death of the parent appointing: 1. If the child be legitimate, by the father, with the writ- ten consent of the mother; or by either parent, if the other be dead or incapable of consent. 2. If the child be illegitimate, by the mother. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, pp. 195, 196. §242. NO PERSON GUARDIAN OF ESTATE WITH- OUT APPOINTMENT [repealed]. History; Enacted March 21, 1872; repealed by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1. p. 340, held unconstitutional; see history, § 4 ante; re-repealed March 21, 1905, Stats, and Amdts. 1905, p. 728. 73 §§243-246 CIVIL CODE. [Div.l.Pt.III. §243. APPOINTMENT OF GUARDIAN BY COURT [repealed]. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 196; April 6, 1880, Code Amdts. 1880 (C. C. p't.), p. 4; repealed by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 340, held unconstitutional; see his- tory, § 4 ante; re-repealed March 21, 1905, Stats, and Amdts. 1905, p. 728. § 244. RULES FOR AWARDING CUSTODY [repealed]. History: Enacted March 21, 1872; amended April 6, 1880, Code Amdts. 1880 (C. C. pt.), p. 4; repealed by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 340, held unconstitutional; see history § 4 ante; re-repealed March 21, 1905, Stats, and Amdts. 1905, p. 728. §245. JURISDICTION [repealed]. History; Enacted March 21, 1872; repealed by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 340, held unconstitutional; see history, § 4 ante; re-repealed March 21, 1905, Stats, and Amdts. 1905, p. 728. §246. RULES FOR AWARDING THE CUSTODY, OR APPOINTING A GENERAL GUARDIAN OF MINORS.. In awarding the custody of a minor, or in appointing a gen- eral guardian, the court or officer is to be guided by the fol- lowing considerations: 1. By what appears to be for the best interest of the child in respect to its temporal and its mental and moral welfare; and if the child is of a sufficient age to form an intelligent preference, the court may consider that preference in deter- mining the question; 2. As between parents adversely claiming the custody or guardianship, neither parent is entitled to it as of right; but other things being equal, if the child is of tender years, it should be given to the mother; if it is of an age to require education and preparation for labor and business, then to the father; 3. Of two persons equally entitled to the custody in other respects, preference is to be given as follows: 74 Tit. III.] AWARDING CUSTODY, RULES OF. §§247,248 U) To a parent; (2) To one who was indicated by the wishes of a de- ceased parent; (3) To one who already stands in the position of a trus- tee of a fund to be applied to the child's support; (4) To a relative. 4. Any parent who knowingly or wilfully abandons, or hav- ing the ability so to do, fails to maintain his minor child under the age of fourteen years, forfeits the guardianship of such child; and any parent or guardian who knowingly per- mits his child or ward to remain for the space of one year in any orphan asj-lum of this state, wherein such child is sup- ported by charity, and who, during such period, fails to give notice in writing to the managers or officers of such asylum that he is such parent or guardian, abandons and forever forfeits all right to the guardianship, care, custody, and con- trol of such child. The officers and managers of any or- phan asylum having any such abandoned child in its care have the preferred right to the guardianship of such child. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 196; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 340, held unconsti- tutional; see history, § 4 ante;" amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 728. §247. POWERS OF GUARDIAN APPOINTED BY COURT [repealed]. History: Enacted March 21, 1872; repealed by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 341, held unconstitutional, see history, § 4 ante; re-repealed March 21, 1905, Stats, and Amdts. 1905, p. 729. §248. DUTIES OF GUARDIANS OF THE PERSON [repealed]. History: Enacted March 21, 1872; repealed by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 341, held unconstitutional; see history, § 4 ante; re-repealed March 21, 1905, Stats, and Amdts. 1905, p. 729. 75 §§249-253 CIVIL CODE. [Div.I,Pt.III. §249. DUTY OF GUARDIAN OF ESTATE [repealed]. HLstory: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 197; April 6, 1880, Code Amdts. 1880 (C. C. pt.), p. 5; repealed by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 341, held unconstitutional; see his- tory, § 4 ante; re-repealed March 21, 1905, Stats, and Amdts. 1905, p. 729. §250. RELATION CONFIDENTIAL. The relation of guardian and ward is confidential, and is subject to the pro- visions of the title on Trust. , History: Enacted March 21, 1872. §251. GUARDIAN UNDER DIRECTION OF COURT. In the management and disposition of the person or prop- erty committed to him, a guardian may be regulated and controlled by the court. History: Enacted March 21, 1872. §252. DEATH OF A JOINT GUARDIAN. On the death of one or two or more joint guardians, the power con- tinues to the survivor until a further appointment is made by the court. History: Enacted March 21. 1872. §253. REMOVAL OF GUARDIAN. A guardian may be removed by the superior court for any of the following causes: 1. For abuse of his trust; 2. For continued failure to perform its [his] duties; 3. For incapacity to perform its [his] duties; 4. For gross immorality; 5. For having an interest adverse to the faithful perform ance of his duties; 6. For removal from the state; 76 Tit. I II.] APPOINTMENT BY PARENT. §§254-256 7. In the case of a guardian of the property, for insolvencj^; or, 8. When it is no longer proper that the ward should be under guardianship. Historj-: Enacted March 21, 1S72; amended April 6, 18S0, Code Amdts. 1880 (C. C. pt.), p. 5. §254. GUARDIAN APPOINTED BY PARENT, HOW SUPERSEDED. The power of a guardian appointed by a parent is superseded: 1. By his removal, as provided by section two hundred and fifty-three; 2. By the solemnized marriage of the ward; or, 3. By the ward's attaining majority. History: Enacted March 21, 1872. §255. SUSPENSION OF POWER OF GUARDIAN. The power of a guardian appointed by a court, is suspended only: 1. By order of the court; or, 2. If the appointment was made solely because of the ward's minority, by his attaining majority; or, 3. The guardianship over the person of the ward, by the marriage of the ward. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 197; repealed by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 341, held unconsti- tutional; see history, § 4 ante. §256. RELEASE BY WARD. After a ward has come to his majorit}', he may settle accounts with his guardian, and give him a release, which is valid if obtained fairly and without undue influence. Historj-: Enacted Marcli 21, 1872. §§257,258 CIVIL code. [Div.I,Pt.in. §257. GUARDIAN'S DISCHARGE. A guardian ap- pointed by a court is not entitled to his discharge until one j^ear after the ward's majority. History: Enacted March 21, 1872. §258. INSANE PERSONS [repealed]. History: Enacted March 21, 1872; amended April 6, 1880, Code Amdts. 1880 (C. C. pt.), p. 5; repealed by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 341, held unconsti- tutional; see history, § 4 ante; re-repealed March 21, 1905, Stats, and Amdts. 1905, p. 729. 78 Tit. IV.] MASTER AND APPRENTICE. §§264,265 TITLE IV. MASTER AND APPRENTICE. § 264. Minors, when and to whom may be bound as apprentices. § 265. Persons who may bind minor with his consent. § 266. Indenture of apprenticeship, how to be executed and wliat to contain. § 267. Jury trial as to facts of incapacity, etc., of parent. § 268. Apprenticing of poor and homeless minors. § 269. Master to keep apprentice within the state, to deliver him money and other property therein. § 270. Duty to inquire into the treatment of minor apprentices. § 271. Hearing- of complaints of apprentices. § 272. Power of court to discharge apprentice from apprentice- ship. § 273. Liability of master for breach of his covenant. § 274. Liability of, and proceedings against, apprentice guilty of gross misbehavior. § 275. Enticing away apprentices and liability for. § 276. Release of master removing out of state or quitting busi- ness. * §264. MINORS, WHEN AND TO WHOM MAY BE BOUND AS APPRENTICES. Everj' minor of the age of fourteen years or upwards may be bound by indenture as an apprentice to any mechanical trade or art or the occupation of farming to the age of eighteen years, if a female, or to the age of twenty-one 3'ears, if a male. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 341, held unconstitutional; see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 560. §265. PERSONS WHO MAY BIND MINOR WITH HIS CONSENT. A minor, with his consent, may be bound by his father, or, in case of his death or incompetency, or where he has wilfully abandoned his family for one year 79 §266 CIVIL CODE. [Div.LPt.III. without making suitable provision for their support, or is habitually intemperate in the use of intoxicants, or is a va- grant, then by his mother or legal guardian. An executor who, by the will of the father, is directed to bring up a child to a trade or calling, has power to bind by indenture in like manner as the father might have done, if living. If a child is illegitimate, the mother alone has power to bind him. If a minor has no parent or guardian competent to act for him, he may bind himself, with the approval of the superior court of the county wherein he resides. [Mother marrying.] If the mother of a minor, whether legitimate or illegitimate, marries after his birth, she cannot bind him without the approval of such superior court. Historj-: Enacted March 21, 1872; amended April 6, ISSO, Code Amdts. 1880 (C. C. pt.), p. 5; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 341, held unconsti- tutional; see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 561. §266. INDENTURE OF APPRENTICESHIP, HOW TO BE EXECUTED AND WHAT TO CONTAIN. Ev- ery indenture of apprenticeship must be executed in dupli- cate, must state the age of the minor, and, except as herein- after provided, must show that he consented thereto, must be signed by him and the person binding and the master, and when made with the approval of the superior court, a certi- fied copy of the order of approval must be attached to the indenture. One copy of the indenture must be delivered to the master and the other kept for the use of the minor by his parent or guardian when executed by him, or, when made with the approval of the court, it must be filed and deposited w'ith the clerk for safekeeping for the use of the minor. 80 Tit. I v.] INCAPACITY PARENT^TRIAL. §§267,268 No indenture binds the minor after the death of the mas- ter, but thereafter the minor may be bound anew. Every in- denture entered into otherwise than as herein provided is, as against the apprentice, absohitely void. Hi.story: Enacted March 21, 1872; amended by Code Commis- .sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 341, held unconstitutional; see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 561. § 267. JURY TRIAL AS TO FACTS OF INCAPACITY, ETC., OF PARENT. Facts of incapacity, desertion, habit- ual intemperance, and vagrancy must be decided in said court by a jury, before the indenture can take efifect, and an indorsement on the indenture, under seal of the court, that the charge or charges are proved, is sufficient evidence of the mother's power to give such consent; but if the jury does not find the charge or charges to be true, the person at whose instance such proceedings may have been had must pay all costs attending the same. Hisstory: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 341, held unconstitutional; see history, § 4 ante; amendment re-enacted March 21. 1905, Stats, and Amdts. 1905, p. 561. §268. APPRENTICING OF POOR AND HOMELESS MINOR. When a minor is poor, homeless, chargeable to the count}' or state, or an outcast, who has no visible means of obtaining an honest livelihood, the superior court may, with his consent, bind him as an apprentice during his minority. Proceedings therefor may be instituted by any citizen, and no fee must be charged by any officer for an}^ act in con- nection therewith. In all indentures by the court for bind- ing out an orphan or homeless minor as an apprentice there must be inserted, among other things, a clause to the fol- 81 §§269,270 CIVIL CODE. [Div.I,Pt.III. lowing effect: that the master to whom such minor is bound must cause him to be taught to read and write and the ground rules of arithmetic, ratio and proportion, and must give him the requisite instruction in the different branches of his trade or calling, and, at the expiration of his term of service, must give him or her fifty dollars in gold, and two whole new suits of clothes, to be worth in the aggregate at least sixty dollars gold. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 342, held unconstitutional; see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, pp. 561, 562. §269. MASTER TO KEEP APPRENTICE WITHIN THE STATE, TO DELIVER HIM MONEY AND OTH- ER PROPERTY THEREIN. A master must not remove his apprentice out of the state, and must pay and deliver to him the mone}% clothes, and other property to which he is entitled under the indenture of apprenticeship, to be held by him as his sole property. History: Enacted March 21, 1S72; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 342, held unconstitutional; see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1901, p. 562. §270. DUTY TO INQUIRE INTO THE TREATMENT OF MINOR APPRENTICES. Parents and guardians and such court must, from time to time, inquire into the treat- ment of children bound by them respectivelj', or with their approval, and the judges of such courts are responsible for the charge of apprentices bound by a court or with its ap- proval, and must defend them from all cruelty, neglect, 82 Tit.IV.] COMPLAINTS— HEARING OF. . §§271,272 breach of contract, or misconduct on the part of their mas- ters. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 342, held unconstitutional; see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 562. §271. HEARING OF COMPLAINTS OF APPREN- TICES. The superior court must hear the complaints of apprentices who reside within the county against their mas- ters, alleging undeserved or immoderate correction, insuf- ficient allowance of food, raiment, or lodging, want of in- struction 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 apprenticeship, and the court must hear and determine such case and make such order therein as will relieve the party in the future. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 342, held unconstitutional; see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 562. §272. POWER OF COURT TO DISCHARGE AP- PRENTICE FROM APPRENTICESHIP. The superior court has power, where circumstances require it, to dis- charge an apprentice from his apprenticeship, and, in case any money or other thing has been paid or contracted to be paid by either partj^ in relation to the apprenticeship, the court must make such order concerning the same as seems just and reasonable. If the apprentice so discharged was originally bound by the superior court, it must, if found nec- essary, again bind such minor, if under age. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 342, held unconstitutional; see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 562. 83 §§273.274 CIVIL CODE. [Div.I,Pt.III. §273. LIABILITY OF MASTER FOR BREACH Ol HIS COVENANT. Every master is liable to an action on the indenture for a breach of any covenant thereof on his part. All damages recovered in such action, after deduct- ing necessary charges in its prosecution, belong to the minor, and must be applied and appropriated to his use by the person recovering it in his behalf, and must be paid to the minor, if a inale, at the age of twenty-one years, and if a female, at the age of eighteen years. If no action is brought during the minority of the apprentice, it. may be commenced by him in his own name at any time within two years after his coming of age. History: Enacted March 21, 1872; amended April 6, 1880, Code Amdts. 1880 (C. C. pt.), p. 6; amended bj' Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 343, held unconsti- tutional; see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 562. §274. LIABILITY OF, AND PROCEEDINGS AGAINST, APPRENTICES GUILTY OF GROSS MIS- BEHAVIOR. An apprentice who is guilty of any gross misbehavior, or refusal to do his duty, or wilful neglect thereof, is liable to the complaint of his master in the su- perior court of the county wherein the apprentice resides. Such complaint must set forth the circumstances of the case, and have attached thereto a citation, signed by the clerk of the court, requiring him and all persons who have cove- nanted in his behalf to appear and answer the complaint within ten days after the service thereof. The complaint and citation must be served in the manner required for serv- ing civil process. When the parties have answered, or when, though they have not answered, the time therefor al- lowed after the service of the complaint has expired, the court must proceed to hear and determine the cause, and, if the evidence warrants It, may render judgment that the mas- 84 Tit.IV.] ENTICING AWAY— RELEASE. §§275,276 ter be discharged from the contract of apprenticeship and for costs of suit. Such costs may be recovered from the parent or guardian of the minor, if there is any who signed the indenture, and execution therefor may issue according- ly. If there is no parent or guardian liable for such cost, execution may be issued therefor against the minor, or the amount thereof may be recovered in an action against him after he arrives at full age. He is also liable to the master in an action on the indenture for the breach of any covenant on the part of the apprentice contained therein, committed before the master was discharged from the indenture. History: Enacted March 21, 1872; amended by Code Commis- sion, Act Marcli 16, 1901, Stats, and Amdts. 1900-1, p. 343, iield / unco-nstitutional; see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, pp. 562-563. §275. ENTICING AWAY APPRENTICES AND LIA- ABILITY FOR. It is unlawful for any person to entice, counsel, or persuade to run away any apprentice, or to har- bor or conceal him, knowing him to be a runaway. Any party so offending is guilty of a misdemeanor, and may be fined not more than one hundred dollars, to be re- covered by the master in any court having jurisdiction. History: Enacted Marcli 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 343. held unconstitutional; see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 563. §276. RELEASE OF MASTER MOVING OUT OF STATE OR QUITTING BUSINESS. Whenever any mas- ter wishes to remove out of the state, or to quit his trade or business, he must appear with his apprentice before the superior court of the county in which the latter resides, and if the court is satisfied that the master has done justice to the 85 §276 CIVIL CODE. [Div.I,Pt.III. apprentice for the time he has had charge of him, the court has power to discharge the master from the indenture and to again bind the apprentice, if necessary. History: Enacted March 21, 1872; amended by Code Commis- sion, Act Marcli 16, 1901, Stats, and Amdts. 1900-1, p. 344, held unconstitutional; see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 563. 86 PART IV. CORPORATIONS Title I. General Provisions Applicable to all Corpora- tions, §§ 283-403. II. Insurance Corporations, §§ 414-453hh. III. Railroad Corporations, §§454-494. IV. Street Railroad Corporations, §§497-511. V. Wagon Road Corporations, §§ 512-524. VI. Bridge, Ferry, Wharf, Chute, and Pier Corpor- ations, §§528-531. VII. Telegraph Corporations, §§ 536-540. VIII. Water and Canal Corporations, §§548-552. IX. Homestead Corporations, §§ 557-566. X. Savings and Loan Corporations, §§ 571-583b. XI. Mining Corporations, §§ 586-590. XIa. Corporations for the Formation of Chambers of Commerce, Mechanics' Institutes, and Kin- dred Associations, §§ 591-592e. XII. Religious, Social, and Benevolent Corporations, §§ 593-605. Xlla. Societies for the Prevention of Cruelty to Chil- dren and Animals, §§ 607-607g. XIII. Cemetery Corporations, §§608-616. XIV. Agricultural Fair Corporations, §§620-622. XV. Gas Corporations, §§ 629-632. XVI. Land and Building Corporations, §§ 639-648a. XVII. Colleges and Seminaries of Learning, §§649-651. 87 CIVIL CODE. [Div.I.Pt.IV. XVIII. Consolidation of Colleges and Institutions of Higher Education, §§ 652-653. XIX. Co-operative Business Corporations, § 653a. XX. Co-operative Business Associations, §§ 653b-653e. XXI. Non-Profit, Co-operative Agricultural, Viticul- tural, and Horticultural Associations, §§ 653m- 653s. XXII. Non-Profit Co-operative Corporations, §§ 653t- 653zb. 88 Tit. T, ell. I, art. I.] CORPORATION, FORMATION. §283 TITLE I. GENERAL PROVISIONS APPLICABLE TO ALL COR- PORATIONS Chapter I. Formation of Corporations, §§283-321b. II. Corporate Stock, §§322-349. III. Corporate Powers, §§354-393. IV. Extension and Dissolution of Corporations, §§ 399-403. V. General Provisions Affecting Corporations, §§403a, 404. VI. Foreign Corporations, §§ 405-410. CHAPTER I. FORMATION OF CORPORATIONS Article I. Corporations Defined and How Organized, §§ 283-300a. II. By-Laws, Directors, Elections, and Meetings, §§301-321b. 89 §283 CIVIL CODE. [Div.I,Pt.IV. ARTICLE I. CORPORATIONS DEFINED AND HOW ORGANIZED. § 2S3. Corporation deflnerl. § 284. [Kinds of] — What are public and wliat private corpora- tions. § 285. Private, liow formed. § 286. [Same]. For what purpose. § 287. Existence, how construed [under code]. § 288. Existing corporations not affected. § 289. Name of instrument creating corporation. §290. Articles of incorporation. What they must set forth. Nuinber of directors may be increased or diminished. § 290a. Minimum capital required to be paid by certain corpora- tions. § 291. Certain corporations to state further facts in articles. § 292. How executed. [Subscription and acknowledgment]. § 293. Prerequisites to filing articles. Amounts to be sub- scribed to be affixed. § 294. Prerequisites to filing articles of incorporation for profit. § 29.5. Oath of officer to subscription of stock and payment of ten per cent. § 296. Articles of incorporation. Corporate name must not be duplicated or closely imitated. § 297. Copy of articles prima facie evidence. § 297a. Restoration of lost original articles of incorporation. § 298. Who are members and who stockholders of a corpora- tion. § 299. When members die successors to be elected [repealed]. § 299a. Copies of articles must be filed in every county vrhere the corporation acquires property, etc. S 300. Capital stock of banking corporations. § 300a. Copy of decree to be filed with secntary of state. §283. CORPORATION DEFINED. A corporation is a creature of the law, liaving certain powers and duties of a natural person. Being created by the law, it may continue for any length of time which the law prescribes. History: Enacted March 21, 1872. 90 Tit. I, ch. I, art. I.] KINDS OF cORPORAXroNS. §§284-287 §284. [KINDS OF]— WHAT ARE PUBLIC AND WHAT PRIVATE CORPORATIONS. Corporations are either public or private. Public corporations are formed or organized for the government of a portion of the state; all other corporations are private. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 197. §285. PRIVATE, HOW FORMED. Private corpora- tions ma}' be formed by the voluntary association of any three or more persons in the manner prescribed in this ar- ticle. A majority of such persons must be residents of this state. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 198; March 20, 1905, Stats, and Amdts. 1905, p. 502. §286. [SAME.] FOR WHAT PURPOSE. Private cor- porations may be formed for any purpose for which indi- viduals may lawfully associate themselves. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 198. The original section enumerated seventeen purposes for which corporations might be formed, and prohibited all other purposes. §287. EXISTENCE, HOW CONTINUED [UNDER CODE]. Any corporation existing on the first day of Jan- uary, one thousand eight hundred and seventy-three, formed under the laws of this state, and still existing, which has not already elected to continue its existence, under the pro- visions of this code applicable thereto, may, at any time hereafter, make such election b}' the unanimous vote of all its directors, or such election may be made at any annual meeting of the stockholders, or members, or at any meeting called by the directors expressly for considering the sub- ject, if voted by stockholders representing a majority of the 91 §§288,289 CIVIL code. [Div.I.Pt.IV. capital stock, or by a majoritj^ of the members, or may be made by the directors upon the written consent of that number of such stockholders or members. [Certificate to be filed.] A certificate of the action of the directors, signed by them and their secretary, when the election is made by their unanimous vote, or upon the written consent of the stockholders or members, or a certificate of the proceedings of the meeting of the stock- holders or members, when such election is made at any such meeting, signed by the chairman and secretary of the meet- ing and a majority of the directors, must be filed in the office of the clerk of the county where the original articles of corporation are filed, and a certified copy thereof must be filed in the office of the secretary of state; and thereafter the corporation shall continue its existence under the pro- visions of this code which are applicable thereto, and shall possess all the rights and powers, and be subject to all the obligations, restrictions, and limitations prescribed thereby. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, pp. 198-199. §288. EXISTING CORPORATIONS NOT AFFECT- ED. No corporation formed or existing before twelve o'clock, noon, of the day upon which this code takes effect, is affected by the provisions of Part IV of Division First of this code, unless such corporation elects to continue its ex- istence under it as provided in section two hundred and eighty-seven; but the laws under which such corporations were formed and exist are applicable to all such corpora- tions, and are repealed, subject to the provisions of this sec- tion. History: Enacted March 21, 1872. §289. NAME OF INSTRUMENT CREATING COR- PORATION. The instrument by which a private corpora- tion is formed is called "articles of incorporation." History: Enacted March 21, 1872. 92 Tit.I,ch.I,art.I.] ARTICLES OF INCORPORATION. §290 §290. ARTICLES OF INCORPORATION. WHAT THEY MUST SET FORTH. NUMBER OF DIREC- TORS MAY BE INCREASED OR DIMINISHED. Arti- cles of incorporation must be prepared, setting forth: 1. The name of the corporation. 2. The purpose for which it is formed. 3. The place where its principal business is to be transact- ed. 4. The term for which it is to exist, not exceeding fihy years. 5. The number of its directors or trustees, which shall not be less than three, and the names and residences of those who are appointed for the first year; provided, that the cor- porate powers, business, and property of corporations formed, or to be formed for purposes other than profit, may be exercised, conducted, and controlled by a board, consist- ing of such number of directors as may be in the constitu- tion and b3Maws provided; and corporations so formed maj', in their constitution or by-laws, provide for the length of time that the directors, or any number thereof, shall act, and may in like manner provide that certain directors, or a certain number of the board of directors, to be selected by the corporation or the board of directors, in the mode and manner provided in the constitution or by-laws, shall act for any specified length of time, or otherwise, as shall be in the constitution or by-laws set forth. 6. The amount of its capital stock, and the number of shares into which it is divided and the par value thereof. Corporations formed for profit, pursuant to the provisions of this code, may, by their articles of incorporation, provide for the classification of their capital stock into preferred and common stock. In the event that the articles of incorpora- tion shall provide for such classification the same must con- tain a statement of the number of shares of a stock to which preference is granted, and the number of shares of stock to which no preference is granted. The articles of incorpora- 93 §290a CIVIL CODE. [Div.I.Pt.IV. tion shall also state, in clear and succinct manner, the nature and extent of the preference granted, and except as to the matters and things so stated, no distinction shall exist be- tween said classes of stock or the owners thereof; pro- vided, however, that no preference shall be granted nor shall any distinction be made between the classes of stock either as to voting power or as to the statutory or constitutional liability of the holders thereof to the creditors of the cor- poration; and provided, further, that the preferred and com- mon shares shall be of the same par value. 7. If there is a capital stock, the amount actuall}^ sub- scribed, and by whom. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 199; April 1, 1876, Code Amdts. 1875-6, p. 70, April 16, 1880, Code Amdts. 1880 (C. C. pt.), p. 11; March 31, 1891, Stats, and Amdts. 1891, p. 285; March 20, 1905, Stats, and Amdts. 1905, p. 502; March 18, 1907, Stats, and Amdts. 1907, p. 347, Kerr's Stats, and Amdts. 1906-7, p. 401; June 1, 1915, Stats, and Amdts. 1915, p. 1481. In effect August 8, 1915. §290a. MINIMUM CAPITAL REQUIRED TO BE PAID IN BY CERTAIN CORPORATIONS. Before the secretary of state issues any certificate of incorporation to any corporation, authorized in its articles of incorporation to conduct the business of acting as executor, administrator, guardian of estates, assignee, receiver, depositary, or trus- tee under appointment of any court or bj^ authority of any law of this state, or as trustee for any purpose permitted by law, and before he files any amended articles of incorpora- tion authorizing such purposes if the principal place of busi- ness of such corporation is in a city of which the population does not exceed one hundred thousand persons, there iriust be filed in his office the affidavit of all the directors of such corporation that at least one hundred thousand dollars of the capital stock has actually been subscribed and paid in in cash to a person named in such affidavit, for the conduct of such trust business and for the exclusive benefit and pro- 94 Tit.I,ch.I,art.I.] MINIMUM CAPITAL. § 290a tection of the creditors of such trust business, and if the principal place of business is in a city, the population of which exceeds one hundred thousand persons, there must be filed in his office the affidavit of all the directors of such cor- poration that at least two hundred thousand dollars of the capital stock has actually been subscribed and paid in in cash to a person named in such affidavit, for the conduct of such trust business and for the exclusive benefit and protection of the creditors of such trust business and before he issues any certificate of incorporation to any corporation authorized in its articles of incorporation to engage in the business of banking, or of receiving the money of others on deposit, there must in like manner be filed the affidavit herein that a capital stock, as follows, has actually been subscribed, and paid in in cash to a person named in such affidavit, for the benefit of the corporation: [Capital stock.] (a) In any locality in which the population does not exceed five thousand persons, not less than twenty- five thousand dollars if it is incorporated to transact either a commercial or savings business or both, or not less than one hundred twenti'-five thousand dollars if it is incorporat- ed to transact both a commercial and trust business, or not less than one hundred twenty-five thousand dollars if it is incorporated to transact both a savings and trust business and not less than one hundred twenty-five thousand dollars if it is incorporated to transact a commercial, savings and trust business. (b) In any city in which the population is more than five thousand persons but does not exceed twenty-five thousand persons, not less than fifty thousand dollars if it is incorpor- ated to transact either a commercial or savings business or both, or not less than one hundred fifty thousand dollars if it is incorporated to transact both a commercial and trust business, or not less than one hundred fifty thousand dol- lars if it is incorporated to transact both a savings and trust business, and not less than one hundred fifty thousand dol- 95 §290a CIVIL CODE. [Div.I,Pt.IV. lars if it is incorporated to transact a commercial, savings and trust business. (c) In any city in which the population is more than twenty-five thousand persons, but does not exceed one hun- dred thousand persons, not less than one hundred thousand dollars if it is incorporated to transact either a commercial or savings business or both, or not less than two hundred thousand dollars if it is incorporated to transact both a com- mercial and trust business, or not less than two hundred thousand dollars if it is incorporated to transact both a sav- ings and trust business, and not less than two hundred thou- sand dollars if it is incorporated to transact a commercial, savings and trust business. (d) In any city in which the population is more than one hundred thousand persons but does not exceed two hundred thousand persons, not less than two hundred thousand dol- lars if it is incorporated to transact either a commercial or savings business or both, or not less than four hundred thou- sand dollars if it is incorporated to transact both a com- mercial and trust business, or not less than four hundred thousand dollars if it is incorporated to transact both a sav- ings and trust business, and not less than four hundred thou- sand dollars if it is incorporated to transact a commercial, savings and trust business. (e) In any city in which the population exceeds two hun- dred thousand persons, not less than three hundred thousand dollars if it is incorporated to transact either a commercial or savings business or both, or not less than five hundred thou- sand dollars if it is incorporated to transact both a commer- cial and trust business, or not less than five hundred thou- sand dollars if it is incorporated to transact both a savings and trust business, and not less than five hundred thousand dollars if it is incorporated to transact a commercial, savings and trust business. [Determination of population.] For the purposes of this section, the population shown and determined by the last preceding federal census, or anj- subsequent census compiled 96 Tit. I, ch. I, art. I.] FURTHER FACTS TO BE STATED. §291 and certified under any law of this state, shall be deemed to be the population of any city in which such corporation is to be organized. If the principal place of business of any corporation so organized is located outside of the corporate limits of any city, then the population of that portion of the judicial township in which said corporation is to have its principal place of business, which is not included within the boundaries of any municipal corporation, as such population is shown and determined by such federal or subsequent of- ficial census, shall be the basis for classifications under the provisions of this section. [Approval of superintendent of banks.] Before the secre- tary of state shall issue any certificate of incorporation to any corporation specified in this section and before he files any amended articles of incorporation or other certificate in- creasing or decreasing the capital stock, extending or short- ening the corporate existence or increasing or decreasing the number of directors of any such corporation there must be attached to said certificates or amendments the approval of the superintendent of banks. . History: Enacted March 21, 1907, Stats, and Amdts. 1907, p. 4S2, Kerr's Stats, and Amdts. 1906-7, p. 402; amended March 13, 1909, Stats, and Amdts. 1909, p. 300; May 8, 1913, Stats, and Amdts. 1913, p. 201; June 3. ^1915, Stats, and Amdts. 1915, p. 1136. lu effect August 8, 1915. §291. CERTAIN CORPORATIONS TO STATE FUR- THER FACTS IN ARTICLES. The articles of incorpora- tion of any railroad, wagon-road, or telegraph organization must also state: 1. The kind of road or telegraph intended to be construct- ed; 2. The place from and to which it is intended to be run, and all the intermediate branches; 3. The estimated length of the road or telegraph line; 4 97 §§292-294 CIVIL code. [Div.I.Pt.IV. 4. That at least ten per cent of the capital stock subscribed has been paid in to the treasurer of the intended corpora- tion. History: Enacted March 21, 1S72. §292. HOW EXECUTED. [SUBSCRIPTION AND ACKNOWLEDGMENT.] The articles of incorporation must be subscribed by three or more persons, a majority ot whom must be residents of this state, and acknowledged by each before some officer authorized to take and certify ac- knowledgments or [of] conveyances of real property. The signature of each person named in said articles of in- corporation as directors of such corporation shall be affixed to said articles of incorporation and acknowledged by each before some officer authorized to take and certify acknowl- edgments of conveyances of real property. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 199; March 20, 1905, Stats, and Amdts. 1905, p. 503; April 26, 1911, Stats, and Amdts. 1911, p. 1112. §293. PREREQUISITE TO FILING ARTICLES. AMOUNTS TO BE SUBSCRIBED TO BE FIXED. Each intended corporation named in section two hundred and ninety-one, before filing articles of incorporation, must have actually subscribed to its capital stock, for each mile of the contemplated work, the following amounts, to wit: 1. One thousand dollars per mile of railroads; 2. One hundred dollars per mile of telegraph lines; 3. Three hundred dollars per mile of wagon roads. History: Enacted March 21, 1872. §294. PREREQUISITE TO FILING ARTICLES OF INCORPORATIONS FOR PROFIT. Before the articles of incorporation of any corporation referred to in the pre- 98 Tit.I,ch.l,art.I.] OATH OF SUBSCRIPTION, ETC. §§295,296 ceding section are filed, there must be paid for the benefit of the corporation, to a treasurer elected by the subscribers, ten per cent of the amount subscribed. History: Enacted March 21, 1S72. §295. OATH OF OFFICER TO SUBSCRIPTION OF STOCK AND PAYMENT OF TEN PER CENT. Before the secretary of state issues to any such corporation a cer- tificate of the filing of articles of incorporation, there must be filed in his office an affidavit of the president, secretary, or treasurer named in the articles, that the required amount of the capital stock thereof has been actually subscribed, and ten per cent thereof actually paid to a treasurer for the benefit of the corporation. History: Enacted March 21, 1S72. §296. ARTICLES OF INCORPORATION. CORPOR- ATE NAMES MUST NOT BE DUPLICATED NOR CLOSELY IMITATED. Upon filing the articles of incor- poration in the office of the county clerk of the county in which the principal business of the company is to be trans- acted, and a copy thereof certified by the county clerk with the secretary of state, and the affidavit mentioned in the last section where such affidavit is required, the secretary of state must issue to the corporation, over the great seal of the state, a certificate that a copy of the articles containing the required statement of facts has been filed in his office, and thereupon the persons signing the articles and their as- sociates and successors shall be a body politic and corporate by the name stated in the certificate, and for the term of fifty years, unless it is, in the articles of incorporation, oth- erwise stated, or in this code otherwise specially provided; [Not to file copy of copy.] Provided, however, that the secretary of state shall not file any copy of the copy of any articles, or issue any certificate of incorporation to 99 §§297, 297a ' CIVIL CODE. [Div.I,Pt.IV. any corporation, which articles set forth the corporate name of any corporation heretofore organized in this state, or file any copy of any articles, or issue any cer- tificate of incorporation to any corporation existing at the time of filing said articles, which articles set forth a name so closely resembling the name of such corporation as will tend to deceive. The secretary of state shall issue and file in his office a duplicate of the certificate hereinabove provided for and copies thereof, duly certified by the secretary of state, shall have the same force and effect in evidence as the orig- inal. HLstory: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 187S-4, p. 199; March 23. 1901, Stats, and Amdts. 1900-1, p. 629; June 1, 1915, Stats, and Amdts. 1915, p. 1039. In efEect August 8, 1915. §297. COPY OF ARTICLES PRIMA FACIE EVI- DENCE. A copy of any articles of incorporation filed in pur- suance of this chapter, and certified by the secretary of state, or by the county clerk of the county where the original arti- cles shall have been filed, must be received in all the courts of this state, and other places, as prima facie evidence of the facts therein stated. 'History: Enacted March 21, 1872; amended March "C, 1874, Code Amdts. 1873-4, p. 200; March 8, 1895, Stats, and Amdts. 1895, p. 30. In force March 8, 1895. §297a. RESTORATION OF LOST ORIGINAL AR- TICLES OF INCORPORATION. Whenever the articles of incorporation of any corporation have been, or may here- after be, destroyed by conflagration or other public calamity, a copy of the certified copy of the articles of incorporation of such corporation filed in the office of the secretary of state pursuant to the provisions of section two hundred ninety-six of this code, duly certified by such secretary of state, may be filed in the office of the county clerk of the 100 Tit.I,ch.I,art.I.] WHO ARE MEMBERS. §§298-299[a] count}' where such articles of incorporation were on file at the time of their loss or destruction. Any such copy filed pursuant to this section shall have the same force and effect as the document so lost or destroyed. History: Enacted June 16. 1906, Stats, and Amdts. 1906, p. 83, Kerr's Stats, and Amdts. 1906-7, p. 403. lu effect immediate- ly. S298. WHO ARE MEMBERS AND WHO STOCK- HOLDERS OF A CORPORATION. The owners of shares in a corporation which has a capital stock are called stock- holders. If a corporation has no capital stock, the corpora- tors and their successors are called members. HLstory: PJnacted March 21, 1872. §299. WHEN MEMBERS DIE SUCCESSORS TO BE ELECTED [repealed]. History: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p*. 200. §299 [a]. COPIES OF ARTICLES MUST BE FILED IN EVERY COUNTY WHEREIN THE CORPORATION ACQUIRED PROPERTY, ETC. No corporation hereafter formed must purchase, locate, or hold property, in any county in this state, other than the county in which its original art- icles of incorporation are filed, without filing a copy ot the copy of its articles of incorporation filed in the office of the secretary of state, duly certified by such "secretary of state, m the of^ce of the county clerk of the county in wdiich such property is situated, within sixty days after such purchase or location is made. Every corporation now in existence, whether formed under the provisions of this code or not, must, within ninety days after the passage of this section, file such certified copy of the copy of its articles of incorporation in the office of the county clerk of every county in this state 101 §300 CIVIL CODE. [Div.I,Pt.IV. in which it holds any property, except the county where the original articles of incorporation are filed; and if any cor- poration hereafter acquires any property in a county other than that in which it now holds property, it must, within ninety days thereafter, file with the clerk of such county such certified copy of the copy of its articles of incorporation. The copies filed with the several county clerks, and certified cop- ies thereof, have the same force and effect in evidence as the originals. Any corporation failing to comply with the provisions of this section cannot maintain or defend any action or pro- ceeding in relation to such property, its rents, issues, or prof- its, until such articles of incorporation, and such certified copy of its articles of incorporation, and such certified copy of the copy of its articles of incorporation, are filed at the places directed by the general law and this section; provided, that all corporations are liable in damages for any and all loss that may arise by the failure of such corporation to perform any of the foregoing duties within the time mentioned in this section; and provided further, that the said damages may be recovered in an action brought in any court of this state of competent jurisdiction, by any party or parties suffering the same. History: Enacted April 3, 1876, Code Amdts. 1875-6, p. 71; amended March 23, 1878, Code Amdts. 1877-8, p. 76; April 23, 1880, Code Amdts. 1880 (C. C. pt.), p. 13; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 344, held unconstitutional; see history, § 4 ante; amendment re- enacted March 21, 1905, Stats, and Amdts. 1905, pp. 556-557. §300. CAPITAL STOCK OF BANKING CORPORA- TIONS—DIVIDENDS. Every corporation that has been or may be created under the general laws of this state, doing a banking business therein, and which has no capital stock, may elect to have a capital stock, and may issue certificates of stock therefor, in the same manner as corporations formed 102 Tit.I,ch.I,art.I.] banking CORPORATIONS. §300 under the provisions of chapter one, article one, of the civil code, relating to the formation of corporations; provided, that no such corporation shall use or convert any moneys or funds theretofore belonging to it, or under its control, into capital stock; but such funds or moneys must be held and managed only for the purposes and in the manner for which they were created. Before such change is made, a majority of the members of such corporation present at a meeting called for the purpose of considering the proposition whether it is best to have a capital stock, its amount, and the number of shares into which it shall be divided, must vote in favor of having a capital stock, fix the amount thereof, and the number of shares into which it shall be divided. Notice of the time and place of holding such meeting, and its object, must be given by the president of such corpora- tion, by publication in some newspaper printed and published in the county, or city and county, in which the principal place of business of the corporation is situated, at least once a week for three successive weeks prior to the holding of the meeting. A copy of the proceedings of this meeting, giving the num- ber of persons present, the votes taken, the notice calling the meeting, the proof of its publication, the amount of cap- ital actually subscribed, and by whom, all duly certified by the president and secretary of the corporation, must be filed in the offices of the secretary of state and clerk of the county where the articles of incorporation are filed. Thereafter such corporation is possessed of all the rights and powers, and is subject to all the obligations, restrictions, and limitations, as if it had been originally created with a capital stock; and provided further, that no bank in this state shall ever pay any dividend upon so-called guaranty notes, nor upon -.ly stock, except upon the amount actually paid in money into said capital upon such stock, and any payment made in viola- 103 §300a CIVIL CODE. [Div.I,Pt.IV. tion of this provision shall render all officers and directors consenting to the same jointly and severally liable to the depositors to the extent thereof. Historj-: Enacted Marth 29, 1878, Code Amdts. 1877-8, pp. 77-78. §300a. COPY OF DECREE TO BE FILED WITH SECRETARY OF STATE. Every corporation which has changed its name under the provisions of sections one thou- sand two hundred and seventy-five, one thousand two hundred and seventy-six, one thousand two hundred and seventy-seven, one thousand two hundred and seventj'-eight, and one thou- sand two hundred and seventy-nine of the Code of Civil Pro- cedure, must file in the ofifice of secretary of state and in the office of the county clerk of each county in which the original articles or certified copies thereof are required by law to be filed, a certified copy of the decree of the court changing such name. Historj-: Enacted March 20, 1903, Stats, and Amdts. 1903, p. 256. in force March 20, 1903; amended April 16, 1909, Stats, and Amdts. 1909, p. 973. 104 Tit.I.ch.I.artll.] BY-LAWS— ADOPTION. . §301 ARTICLE II. BY-LAWS, DIRECTORS, ELECTORS. AND MEETINGS. § 301. By-laws. [Adoption of, when, how, and by whom]. § 302. Directors, election of, etc. [Notice]. § 302a. Financial statement to stockholders upon request of ten per cent. § 303. By-laws, for what may provide. § 304. By-laws recorded and how amended. § 305. Corporate powers and business exercised by board of directors. Quorum. § 306. Election of directors and adoption of by-laws [repealed]. ' § 307. Election of directors, how conducted. Cumulative vot- ing not denied. § iOS. Organization of board of directors, etc. [Quorum]. § 309. Dividends from surplus profits. Penalty for violation of this section. Distribution of land, water, etc. § 310. Removal from office of directors, etc. § 311. Justice of peace may order meeting of corporation, when. § 312. Majority of stock must be represented at elections, and • a majority vote together, otherwise voidable. § 312 [a]. [Same]. Corporations other than for profit. § 313. Stock of minors, insane, etc., how represented. § 314. Election may be postponed. § 315. Complaints, quo warranto and proceedings thereon, re- garding elections. [Notice]. § 316. Damages for false entries, etc. §317. Meeting by consent to be valid. [Written waiver]. § 318. Proceedings at meeting to be binding. § 319. Meetings, where held.' § 320. When no provision in by-laws for regular meetings, special meetings, how called. [Notice.] § 320a. Waiver of notice of corporation meeting. § 321. Certain books to be open for inspection. § 321a. Change of principal place of business,^procedure. § 321b. Stockholders' meeting, who may vote at. Proxies, void when; maximum period of; revocable. 105 §§301,302 . CIVIL CODE. [Div.I,Pt.IV. §301. BY-LAWS. [ADOPTION OF, WHEN, HOW, AND BY WHOM.] Every corporation formed under this title must, within one month after filing articles of incorpora- tion, adopt a code of by-laws for its government not incon- sistent with the constitution and laws of this state. The as- sent of stockliolders representing a majority of all the sub- scribed capital stock, or of a majority of the members if there be no capital stock, is necessary to adopt by-laws, if they are adopted at a meeting called for that purpose; and in the event of such meeting being called, two weeks' notice of the same by advertisement in some newspaper published in the county in which the principal place of business of the corporation is located, or if none is published therein, then in a paper published in an adjoining county, must be given by order of the actmg president. The written assent of the holders of two thirds of the stock, or of two thirds of the members, if there be no capital stock, shall be effectual to adopt a code of by-iaws without a meeting for that purpose. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, pp. 200-201; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 344, held uncon- stitutional; see history, § 4 ante. §302. DIRECTORS, ELECTION OF, ETC. [NOTICE]. The directors of a corporation must be elected annually by the stockholders or members, and if no provision is made in the by-laws fcr the time of election, the election must be held on the first Tuesday in June. Notice of such election must be given as prescribed in section three hundred one, unless all of the stockholders waive such notice in writing. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 345, act held unconstitutional, see history, § 69 ante; amendment re- enacted March 21. 1905, Stats, and Amdts. 1905, p. 557; amended February 22, 1909, Stats, and Amdts. 1909, p. 48. 106 Tit.I,ch.I,art.II.] FINANCIAL STATEMENT. §§ 302a, 303 §302a. FINANCIAL STATEMENT TO STOCKHOLD- ERS UPON REQUEST OF TEN PER CENT. Upon the written request of not less than ten per cent of the stock- holders, presented not less than two weeks prior to the time of the election provided for by section three hundred two of this code, there must be served upon each stockholder, at least one week prior tc such election, one copy of a hnancial statement of the aftairs of the corporation, which must show the authorized capital stock of the corporation, the amount of capital stock subscribed, the amount of capital actually paid in, the assets and the surplus and undivided profits of the corporation and the amount of the last annual, semi-an- addresses of all the officers and directors of the corporation, the amount of mortgages, bonded or other indebtedness of the corporation and the amount of the last annual, semi-an- nual or quarterly dividend, and a general summary of the business transacted by the corporation since the last preced- ing annual meeting. The financial statement herein referred lO shall be signed by the president and secretary of the cor- poration and shall be sworn to by such officers before some officer authorized by law to administer oaths, and must be personally served upon each stockholder or, in lieu of per- sonal service, must be sent by mail addressed to each stock- holder at his place of residence if known, or if not known, at the place where the principal office of the corporation is situated. The president or secretary of any corporation who with intent to deceive"" shall sign a false financial statement shall be deemed guilty of a misdemeanor. History: Enactment approved June 7, 1915, Stats, and Amdts. 1915, p. 1271. In efiEect August 8, 1915. §303. BY-LAWS, FOR WHAT MAY PROVIDE. A corporation may, by its by-laws, where no other provision is specially made, provide for: 107 §304 CIVIL CODE. [Div.I.Pt.IV. 1. The time, place, and manner of calling and conducting its meetings, and may dispense with notice of all regular meetings of stockholders or directors. 2. The number of stockholders or members constituting a quorum. 3. The mode of votiilg by proxy. 4. The qualifications and duties of directors, and also the time of their annual election, and the mode and manner of giving notice thereof. 5. The compensation and duties of officers. 6. The manner of election and tenure of office of all officers other than the directors; and, 7. Suitable penalties for violations of by-laws, not exceed- ing in any case one hundred dollars for any one ofTense. 8. The newspaper in which all notices of the meetings of stockholders or board of directors, notice of which is re- quirea, shall be published, which must be some newspaper published in the county where the principal place of business of the corporation is located, or if none is published therein, then in a newspaper published in an adjoining county; pro- vided, that when the by-laws prescribe the newspaper in which said publication shall be made, if from any cause at the time any publication is desired to be made, the publica- tion of such newspaper shall have ceased, the board of direc- tors may, by an order entered on the records of the corpor- ation, direct the publication to be 'made in some other news- paper published in the county, or if none is published therein, then in an adjoining county. History: Enacted March 21. 1ST2; amended March 30, 1S74, Code Amdts. 1ST3-4, p. 201; March 19, 1889, Stats, and Amdts. 1889, p. 365; amended by Code Commission, Act Marcli 16, 1901, Stats, and Amdts. 1900-1, p. 345, held unconstitutional; see his- tory, § 4 ante. § 304. BY-LAWS RECORDED AND HOW AMENDED. All by-laws adopted nmst be certified by a majorit}- of the directors and secretary of the corporation, and copied in a 108 Tit. I. ch. I, art. II.] RECORDS— AMENDMENT. §305 legible hand, in some book kept in the office of the corpora- tion, to be known as the "book of by-laws," and the book must then be open to the inspection of the public during office hours each day except holidays. The by-laws may be repealed or amended, or new by-laws may be adopted, at the annual meeting, or at any other meet- ing of the stockholders or. members, called for that purpose by the directors, by a vote representing two thirds of the sub- scribed stock, or by two thirds of the members. The writ- ten assent of the holders of two thirds of the stock, or two tliirds of the members if there is no capital stock, is effectual to repeal or amend any by-law, or to adopt additional by- laws. The power to repeal and amend the by-laws, and adopt new by-laws, may, by a similar vote at any such meeting, or similar written assent, be delegated to the board of directors. The power, when delegated, may be revoked by a similar vote, at any regular meeting of the stockholders or mem- bers. Whenever any amendment or new by-law is adopted, it must be copied in the book of by-laws with the original by- laws, and immediately after them. If any by-law is repealed, the fact of repeal, with the date of the meeting at which the repeal was enacted, or written assent was filed, must be stated HI said book. Until copied or stated as hereinbefore re- quired, no bj-law, nor any amendment or repeal thereof, can be enforced against any person, other than the corporation, not having actual notice thereof. HLstory: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 201; March 14, 1885, Stats, and Amdts. 1885, pp. 130-131; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 345, held unconstitutional; see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 557. §305. CORPORATE POWERS AND BUSINESS EX- ERCISED BY BOARD OF DIRECTORS. QUORUM. The corporate powers, business, and property of all corporations 109 §306 CIVIL CODE. [Div.T,Pt.TV. formed under this title must be exercised, conducted, and controlled by a board of not less than three directors, to be elected from among the holders of stock; or where there is no capital stock, then from the members of such corpora- tions; except that corporations formed or to be formed for the purpose of erecting and managing halls and buildings for the meetings and accommodation of several lodges or so- cieties of any benevolent or charitable order or organization, and in connection therewith, the leasing of stores and offices in such building or buildings for other purposes, the corpor- ate powers, business, and property thereof may be conducted, exercised, and controlled by a board [of] not less than three or more than fifty directors, to be chosen from among the stockholders of such corporation or from among the members of such order or organization. A majority of the directors must be in all cases residents of this state. Directors of cor- porations for profit must be holders of stock therein to an amount to be fixed by the by-laws of the corporation. Di- rectors of all other corporations must be members thereof. Unless a quorum is present and acting no business per- formed or act done is valid as against the corporation. When- ever a vacancy occurs in the office of director, unless the by- laws of the corporation otherwise provide, such vacancy must be filled by an appointee of the board. History: Enacted March 21. 1872; amended January 20, 1876, Code Amdts. 1875-6, p. 71; March 15, 1901, Stats, and Amdts. 1900-1, pp. 308-309; amended by Code Commission, Act March 20, 1905, Stats, and Amdts. 1905, p. 503, by changing- number of directors from five to three (and negligently omitting an "of"). Code Coniiuiissiou has needlessly bungled and confused by in- troducing in a very disjointed shape the main provisions in this section into par. 5, § 290 ante. §306. ELECTION OF DIRECTORS AND ADOPTION OF BY-LAWS Irepealed]. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 202; repealed March 19, 1SS9, Stats, and Amdts. 1889, p. 365. 110 Tit.T,ch.I,art.I I.] ELECTION OF DIRECTORS. §307 §307. ELECTIONS OF DIRECTORS, HOW CON- DUCTED. CUMULATIVE VOTING SHALL NOT BE DENIED. All elections mvist be b^' ballot, and every stock- holder shall have the right to vote in person or by proxy the number of shares standing in his name, as provided in section three hundred and twelve of this code, for as many persons as there are directors to be elected, or to cumulate said shares and give one candidate as many votes as the num- ber of directors multiplied by the number of his shares of stock shall equal, or to distribute them on the same prin- ciple among as many candidates as he shall think fit. The provisions of this section, so far as it relates to cumulative voting, shall apply to all corporations and associations do- ing business in this state, having a capital stock or shares of stock, and electing directors by a meeting of stockholders held in this state, whether such corporations or associations are organized under the laws of this state or not, and no election for directors of any corporation or association, doing business in this state, and electing directors in this state, shall be valid, if the right of a stockholder to cumulate his shares as herein provided shall be denied. In corporations having no capital stock, each member of the corporation may cast as many votes for one director as there are directors to be elected, or may distribute the same among any or all the candidates. In any case the director receiving the highest number of votes shall be declared elected. [Cumulative voting not applicable, when.] The provisions of this section, so far as it elates to cumulative voting, shall not apply to literary, religious, scientific, social or benevolent societies, having no capital stock or shares unless it shall be so provided in their by-laws or rules. History: Enacted March 21, 1S72; amended March 30. 1874. Code Amdts. 1873-4, p. 202; Feb. 1, 1878, Code Amdts. 1877-8, p. 78; March 10, 1887, Stats, and Amdts. 1SS7, p. 95; March 20, 1903, Stats, and Amdts. 1903, p. 253. Ill §§308,309 CIVIL CODE. [Div.I,Pt.IV. § 308. ORGANIZATION OF BOARD OF DIRECTORS, ETC. [QUORUM.] Immediately after their election, the directors must organize by the election of a president, who must be one of their number, a secretary, and treasurer. They must perform the duties enjoined on them by law and the by-laws of the corporation. [Quorum.] A majority of the directors is a sufficient num- ber to form a board for the transaction of business, and every decision of a majority of the directors forming such board, made when duly assembled, is valid as a corporate act. History: Enacted March 21, 1872. §309. DIVIDENDS FROM SURPLUS PROFITS. PEN- ALTY FOR VIOLATION OF THIS SECTION. DIS- TRIBUTION OF LAND, WATER, ETC. The directors of corporations must not miake dividends, except from the sur- plus profits arising from the business thereof; nor must they create any debts beyond their subscribed capital stock; nor must they divide, withdraw, or pay to the stockholders, or any of them, any part of the capital stock, except as herein- after provided, nor reduce or increase the capital stock, ex- cept as herein specially provided. For a violation of the provisions of this section, the di- rectors under whose administration the same may have hap- pened (except those who may have caused their dissent there- from to be entered at large on the minutes of the directors at the time, or were not present when the same did happen) are, in their individual or private capacity, jointly and sev- erally liable to the corporation, and to the creditors thereof, to the full amount of the capital stock so divided, withdrawn, paid out, or reduced, or debt contracted; and no statute of limitation is a bar to any suit against such directors for any sums for which they are liable by this section; [Land and water companies.] Provided, however, that where a corporation has been heretofore or may hereafter be formed for the purpose, among other things, of acquiring, 112 Tit. I. ch. I. art. II.] REMOVAL OF DIRECTORS. § 310 holding, and selling real estate, water, and water rights, the directors of such corporation may, with the consent of stock- holders representing two thirds of the capital stock thereof, given at a meeting called for that purpose, divide among the stockholders the land, water, or water rights so by such cor- oration held, in the proportions to which their holdings of such slock at tht; time of such division entitle them. All conveyances made by the corporation in pursuance of this section must be made and received subject to the debts of such corporation existing at the date of the conveyance thereof. Nothing herein prohibits a division and distribu- tion of the capital stock of any corporation which remains after the payment of all its debts, upon its dissolution, or the expiration of its term of existence. History: . Enacted March 21, 1S72; amended March 31. 1S91. Stats, and Amdts. 1891, p. 46S; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 34 6, held uncon- stitutional; see history, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 558. 5? 310. REMOVAL FROM OFFICE OF DIRECTORS, ETC. The boa.rd of directors maj- be removed from office by a vote of two thirds of the members, or of stockholders holding two thirds of the capital stock, at a general meeting held after previous notice of the time and place, and of the intention to propose such removal. Meetings of stockholders for this purpose may be called by the president, or by a ma- jority of the directors, or by members or stockholders hold- ing at least one half of the votes. Such calls must be in writ- ing, and addressed to the secretary, who must thereupon give notice of the Lime, place, and object of the meeting, and bj- whose order it is called. If the secretary refuses to give the notice, or if there is none, the call may be addressed di- rectlj' to the members or stockholders, and be served as a notice, in which case it must specify the time and place of meeting. The notice must be given in the manner provided 113 §§311,312 CIVIL CODE. [Div.I.Pt.lV. in section three hundred and one of this title, unless other express provision has been made therefor in the by-laws. In case the board of directors is so removed, a new board may be elected at the same meeting. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 347, held unconstitutional; see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, pp. 558, 559. §311. JUSTICE OF PEACE MAY ORDER MEETING OF CORPORATION, WHEN. Whenever, from any cause, there is no person authorized to call or to preside at a meet- mg of a corporation, any justice of the peace of the county where such corporation is established may, on written appli- cation of three or more of the stockholders or of the mem- bers thereof, issue a warrant to one of the stockholders or members, directing him to call a meeting of the corporation, by giving the notice required, and the justice may, in the same warrant, direct such person to preside at such meet- ing until a clerk is chosen and qualified, if th^re is no other officer present legally authorized to preside thereat. The application of a number of stockholders less than three, but holding a majority of the capital stock, has the same eflfect as an application by three or more stockholders or mem- bers. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 347; held unconstitutional; see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 190'5, p. 559. §312. MAJORITY OF STOCK MUST BE REPRE- SENTED AT ELECTIONS, AND A MAJORITY VOTE TOGETHER. OTHERWISE VOIDABLE. At all elections or votes had for any purpose in corporations formed for profit there m.ust be a majority of the subscribed capital stock or of the members represented, either in person or by proxy 114 Tit.T.ch.I.art.II.J ADJOURNING MEETING. §312[a] in writing; provided, that in all instances of corporations formed for purposes other than profit the bj'-laws shall pro- vide the number of members or stockholders that shall con- stitute a quorum for the transaction of business. Every per- son acting therein, in person or by proxy or representative, must be a member thereof or a stockholder, having stock in his own name on the stock books of the corporation at least ten days prior to the election. Any vote or election had other than in accordance with the provisions of this article is void- able at the instance of absent or any stockholder or mem- bers, and may be set aside by petition to the superior court of the county where the same is held. [Meeting may adjourn from day to day.] Any regular or called meeting of the stockholders or members may adjourn trom day to da}^' or from time to time, if for any reason there is not present a majoritj' of the subscribed stock or members, or no election had, such adjournment and the reasons there- for being recorded in the journal of proceedings of the board of directors. HLstory: Enacted March 21, 1S72; amended April 1, 1878, Code Amdts. 1877-8, p. 79; amended by Code Commission Act March 16, 1901, Stats, and Amdts. 1900-1, p. 347, held unconstitutional, see history, § 69 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 559. A further amendment by the Legislature of 1905, on following day (March 22), appears- in "note" below; amendment enacted March 18, 1907, Stats, and Amdts. 1907, p. 596, Kerr's Stats, and Amdts. 1906-7, p. 403. Note: Section 312 was amended March 21, 1905, and also on March 22, 1905, numbered respectively § 312 and § 312[a] in Kerr's Cyelopedie and Pocket Code.s. The Legislature of 1907 repealed § 312 as amended March 21, 1905, and amended § 312[a] as above, and numbered it § 312. §312 [a] [SAME]. CORPORATIONS OTHER THAN FOR PROFIT. At all elections or votes had for any pur- pose in corporations formed for profit there must be a ma- jority of the subscribed capital stock or of the members 115 §313 CIVIL CODE. [Div.I.Pt.IV. represented, either in person or by proxy in writing; pro- vided, that in all instances ol corporations formed for pur- poses other than profit the by-laws shall provide the num- ber of members or stockholders that shall constitute a quorum lor the transaction of business. Every person acting therein (in person or by prcxj- or representative), must be a member thereof or a bona fide stockholder, having stock in his own name on the stock-books of the corporation at least ten days prior to the election. Any vote or election had other than in accordance with the provisions of this art- icle is voidable at the instance of absent (or any) stockhold- ers or members, and may be set aside by petition to the superior court of the county where the same was held. Any regular or called meeting of the stockholders or members may adjourn from day to day, or froin 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 pro- ceedings of the board of directors. History; Enactment.s and amendments recited in section above. This amendment, March 22, 1905, Stats, and Amdts. 1905, p. 787. §313. STOCK OF MINORS, INSANE, ETC., HOW REPRESENTED. The shares of stock of an estate of a minor, or insane person, may be represented by his guard- ian, and of a deceased person by his executor or adminis- trator, and, except when otherwise agreed, all shares of stock standing on the books of a corporation in the name of -any person as pledgee or trustee, may be represented or voted by such pledgee or trustee only when such pledgor or bene- ficial owner fails to represent and vote the same. History: Enacted March 21, 1872; amended March 31, 1874, Code Amdts. 1873-4. p. 203; March 9, 1911, Stats, and Amdts. 1911, p. 318. 116 Tit.I.chJ.art.II.] POSTPONING ELECTION. §§314,315 §314. ELECTION MAY BE POSTPONED. If from any cause an election does not take place on the day ap- pointed by law or the by-laws, or otherwise, it may be held on any day thereafter as is provided for in such by-laws, or to which such election may be adjourned or ordered by the directors. If an election has not been held at the ap- pointed time, and no adjourned or other meeting for the pur- pose nas been ordered by the directors, a meeting may be called by the stockholders as provided in section three hun- dred and ten. Hislory: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 348, held unconstitutional; see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 559. §315. COMPLAINTS, QUO WARRANTO AND PRO- CEEDINGS THEREON, REGARDING ELECTIONS. [NOTICE]. Upon the application of any person or body corporate aggrieved by any election held by any corporate Ijody, the superior court of the county in which such elec- tion is held must proceed forthwith to hear the allegations and proofs of the parties, or otherwise inquire into the mat- ters of complaint, and thereupon confirm the election, order ? new one, or direct such other relief in the premises as ac- cords with right and justice [Notice]. Upon filing the petition, and before any further proceedings are had under this section, five days' notice of the hearing must be given, under the direction of the court or the judge thereof, to the adverse party, or those to be affected thereby. Historj': Enacted March 21, 1872; amended April 1, 1878, Code Amdts. 1877-8, p.. 79; amended by Cpde Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 248, held unconstitu- tional; see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 560. 117 §§316-319 CIVIL CODE. [Div.I.Pt.IV. §316. DAMAGES FOR FALSE ENTRIES, ETC. Any officer of a corporation who wilfully gives a certificate, or wilfully makes an official report, public notice, or entry in any of the records or books of the corporation, concerning the corporation or its business, which is false in any material representation, shall be liable for all the damages resulting therefrom to any person injured thereby, and if two or more officers unite or participate in the commission of any of the acts herein designated, they shall be jointly and severally liable. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1S73-4, p. 203. §317. MEETING BY CONSENT TO BE VALID. [WRITTEN WAIVER.] When all the stockholders or members of a corporation are present at any meetmg how- ever called or notified, and sign a written consent thereto on the records of such meetings, or if those not present sign in writing a waiver of notice of such meeting, which waiver is presented and made a part of the records of such meeting, the doings of such meeting are as valid as if had at a meet- ing legally called and noticed. History: Enacted March 21. 1872; amended February 22, 1909, Stats, and Amdts. 1909, p. 49. §318. PROCEEDINGS AT MEETING TO BE BIND- ING. 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 law- fully be transacted at regular meetings of the corporation. History: Enacted March 21, 1872. §319. MEETINGS, WHERE HELD. The meetings of the stockholders and board of directors of a corporation must be held at its office or principal place of business. History: Enacted March 21, 1872. 118 Tit.I,ch.I,art.II.] SPECIAL MEETINGS— NOTICE. §§320-321 §320. WHEN NO PROVISION IN BY-LAWS FOR REGULAR MEETINGS, SPECIAL MEETINGS, HOW CALLED. [NOTICE]. 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 order of the president, or if there be none, on the order of two directors. History: Enacted March 21, 1872. §320a. WAIVER OF NOTICE OF CORPORATION MEETING. When all the directors of a corporation are present at any directors' meeting, however called or noticed, and sign a written consent thereto, on the record of such meeting, or if the majority of the directors are present, and if those not present sign in writing a waiver of notice of such meeting, which waiver is presented and made a part of the records' of such meeting, the transactions of such meeting- are as valid as if had at a meeting regularly called and noticed. History: Enactment approved May 29, 1915, Stats, and Amdts. 1915, p. 939. In effect August 8, 1915. §321. CERTAIN BOOKS TO BE OPEN FOR IN- SPECTION. Every corporation doing a banking business in this state must keep in its office, in a place accessible to the stockholders, depositors, and creditors thereof, and for their use, a book containing a list of all stockholders in such corporation, and the number of shares of stock held by each, and every such corporation must keep posted in its office, in a conspicuous place, accessible to the public generally, a notice, signed by the president or secretary, showing: 1. The names of the directors of such corporation. 2. The number and value of shares of stock held by each director. 119 §321a CIVIL CODE. [Div.I,Pt.IV. The entries on such book and such notice shall be made and posted within twenty-four hours after any transfer of stock, and shall be conclusive evidence against each director and stockholder of the number of shares of stock held by each. The provisions of this section shall apply to all bank- ing corporations formed or existing before twelve o'clock noon of the day on which this code took effect, as well as to those formed after such time. History: Enacted Jan. 29, 1876, Code Amdt.s. 1875-6, p. 72. §321a. CHANGE OF PRINCIPAL PLACE OF BUSI- NESS, PROCEDURE. Every corporation that has been or may be created under the general laws of this state may change its principal place of business from one place to an- other in the same county, or from one city or county to another city or county within this state. Before such change is made, the Consent in writing, of the holders of two thirds of the capital stock of the corporation must be obtained and filed in Its office. When such consent is obtained and filed, notice of the intended removal or change must be published, ai least once a week, for three successive weeks, in some news- paper published in the county wherein said principal place of business is situated, if there is one published therein; if not, in a newspaper of an adjoining county, giving the name of the county or city where it is situated and that to which it is intended to remove it. [Copy of resolution, etc., to be filed.] Whenever any such change is made, a cop3' of the resolution or action of the board of directors authorizing the same together with a copj' of an affidavit of the publication above required, all duh- certified by the president and secretarj- of the corporation with the corporate seal affixed shall be filed in each office where the original articles of incorporation are, or any copy thereof is required to be filed. 120 Tit.I,ch.I,art.II.]STOCKHOLDERS' MEETING. § 321b [Removal of location in same town.] This section shall not be construed to require such consent, notice or publica- tion in the case of any such removal from one location to another in the same city, town or village. HLstory: Enacted April 3, 1876 (as § 321), Code Amdts. 1S75-6, p. 73; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 348, held unconstitutional; see history, § 4 ante; re-enacted March 20, 1903, Stats, and Amdts. 1903, p. 254. §321b. STOCKHOLDERS' MEETINGS, WHO MAY VOTE AT. PROXIES, VOID WHEN; MAXIMUM PE- RIOD OF; REVOCABLE. At all meetings of stockholders of corporations organized under the laws of this state, or in the case of corporations having no capital stock, then at all meetings of the members of such corporation, only the stock- holders or members actuall}' present shall be entitled to vote on any proposition, including the election of directors and other officers of the corporation, unless proxies from absent or non-attendmg stockholders or members shall be held by some person or persons present at such meeting and shall be executed in accordance with the provisions of this section. [Proxy.] Every such proxy must be executed in writing by the member or stockholder himself, or by his duly au- thorized attorney. No proxy heretofore given or made shall be valid after the expiration of eleven months from the pas- sage of this act, unless the member or stockholder executing it shall have specified therein the length of time for which such proxy is to continue in force, which must be for some limited period, and in no case to exceed seven years from the date of the execution of such proxy. No proxy hereafter to be given or made shall be valid aft^r the expiration of eleven months from the date of its execution, unless the mem- ber or stockholder executing :l shall have specified therein the length of time for which such proxj- is to continue in iorce, which must be for some limited period, and ir no case to exceed seven years from the date of the execution of such proxy. 121 §321b CIVIL CODE. [Div.I.Pt.TV. [Revocation of proxy.] Every proxy shall be revocable at the pleasure of the person executing it; but a corporation hav- ing no capital stock may prescribe in its by-law^s the persons who may act as proxies for members, and the length of time for which such proxies may be executed. Executors, admin- istrators, guardians and trustees may give yioxies. History: Enacted February 27, 1905, Stats, and Amdts. 1905, p. 22; amended May 20, 1913, Stats, and Amdts. 1913, p. 230. In eflfeot August 10, 1913. 122 Tit.I,ch.II,art.l.] STOCKHOLDERS' LIABILITY. §322 CHAPTER II. CORPORATE STOCK. Article I. Stock and Stockholders, §§322-328. II. Assessment of Stock, §§331-349. ARTICLE I. STOCK AND STOCKHOLDERS. § 322. Liability of stockholders; released when; how deter- mined; trust fund not liable; stock held as collateral. § 323. Certificates, how and when issued. § 324. Shares of stock, personal property; how transferred. Ir- rigation stock appurtenant to lands. § 32-5. Married woman may transfer stock; dividends paid to her; her proxy. § 326. Affidavit or bond may be required before transfer. § 327. Contracts to relieve directors from liabilities fixed by constitution void. § 328. Lost, etc., certificate; action for new certificate; parties; procedure. § 329. Burned bonds, procedure to obtain duplicates. § 322. LIABILITY OF STOCKHOLDERS; RELEASED WHEN; HOW DETERMINED; TRUST FUND NOT LI- ABLE; STOCK HELD AS COLLATERAL. Each stock- holder of a corporation is individually and personally liable for such proportioii of all its debts and liabilities contracted or incurred during the time he w^as a stockholder as the amount of stock or shares owned by him bears to the whole of the subsciibcd capital stock or shares of the corporation. Any creditor of the corporation may institute joint or sev- eral actions against any of its stockholders, for the propor- tion of his claim payable by each, and in such action the 123 %Z22 CIVIL CODE. [Div.I.Pt.IV. court must ascertain the proportion of the claim or debt tor which each defendant is liable, and a several judgment must be rendered against each, in conformity therewith. If any stockholder pays his proportion of any debt due from the corporation, incurred while he was such stock- holder, he is relieved from any further personal liability tor such debt, and if an action has been brought against him upon such debt, it must be dismissed, as to him, upon his paying the :osts, or such proportion thereof as may be properly chargeable against him. The liabihty of each stockholder is determined by the amount of stock or shares owned by him at the time the debt or liability was incurred; and such liability is not released by any subsequent transfer of stock. The term stockholder, as used in this section, applies not only to such persons as appear by the books of the corpor- ation to be such, but also to every equitable owner of stock, although the same appears on tiie books in the name of an- other; and also to every person who has advanced the instal- ments or purchase monej' of stock in the name of a minor, so long as the latter remains a minor; and also to every guardian, or other trustee, who voluntarily invests any trust funds in the stock. Trust funds in the hands of a guardian, or trustee, are not liable under the provisions of this section, by reason of any such investment; nor must the person for whose benefit the investment is made be responsible in respect to the stock until he becomes competent and able to control the same; but the responsibility of the guardian or trustee making the investment continues until that period. Stock held as collateral security, or by a trustee, or in any other representative capacity, does not make the holder there- of a stockholder within the meaning of this section, except in the cases above mentioned, so as to charge him with any proportion of the debts or liabilities of the corporation; but 124 Tit.I,ch.II,art.I.] CERTIFICATES OF STOCK. § 323 the pledgeor, or person or estate represented, is to be deemed the stockholder, as respects such liability. In a corporation having no capital stock, each member is individually and personally liable for an equal share of its debts and liabilities, and similar actions may be brought against him, either alone or jointly with other members, to enforce such liability as by this section may be brought against one or more stockholders, and similar judgmetits may be rendered. [Foreign corporations — Liability of stockholders.] The li- a])ility of each stockholder of a corporation formed under the laws of any other state or territory of the United States, or of any foreign country, and doing business within this state, is the same as the liabilitj'- of a stockholder of a cor- poration created under the constitution and laws of this state. History: Enacted March 2], 1872; amended March 30, 1874, Code Ai-ndt.s. 1873-4, p. 203; March 15, 1876, Code Amdts. 1875-6, p. 73; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 349, held unconstitutional; see history, § 4 ante; amendment re-enacted March 20, 1905, Stats, and Amdts. 1905, p. 396. §323. CERTIFICATES OF STOCK, HOW AND WHEN ISSUED. All corporations for profit must issue cer- tificates for stock when fully paid up, signed by the presi- dent and secretary, and may provide, in their by-laws, for ssuing certificates prior to full paj-ment, under such restric- tions and for such purposes as their by-laws may provide, but any certificate issued prior to full payment must show on its face what amount has been paid thereon. All certificates of stock issued by corporations authorized by their articles of incorporation to issue stocks of different classes, shall ex- press upon their face the character of stock represented by said ceriificates. The said certificates shall also state the number of shares of stock of each class which said corpora- tion is authorized to issue, and the said certificates shall also 125 §324 CIVIL CODE. [Div.I,Pt.IV. contain a statement of the nature and extent of the prefer- ence granted to the preferred stock. History: Enacted March 12, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1. p. 350, held unconstitutional, see history, § 69 ante; amendment re-enacted March 20, 1905, Stats, and Amdts. 1905, p. 397; amended March IS, 1907, Stats, and Amdts. 1907, p. 348, Kerr's Stats, and Amdts. 1906-7, p. 403. § 324. SHARES OF STOCK, PERSONAL PROPERTY; HOW TRANSFERRED. IRRIGATION STOCK APPUR- TENANT TO LAND. Whenever the capital stock of any corporation is divided into shares, and certificates therefor are issued, such shares of stock, except as hereinafter pro- vided, are personal property, and may be transferred by in- dorsement by signature of the proprietor, his agent, attorney, or legal representative, and the delivery of the certificate; but such transfer is not valid, except as to the parties thereto, until the same is so entered upon the books of the corpora- tion as to show the names of the parties by whom and to whom transferred, the number of the certificate, the number or designation of the shares, and the date of the transfer. [Water companies — Stock appurtenant to land.] Provided, however, that any corporation organized for, or engaged in the business of selling, distributing, supplying, or delivering water for irrigation purposes or for domestic use. may in its by-laws provide that water shall only be sold, distributed, supplied, or delivered to owners of its capital stock, and that such stock shall be appurtenant to certain lands when the same are described in the certificate isstied therefor; and when such certificate shall be so issued, and a certified copy of such by-law recorded m the office of the county recorder in the county where such lands are situated, the shares of stock so located on any land shall only be transferred with said lands, and shall pass as an appurtenance thereto. When- ever any officer of any corporation shall refuse to make en- 126 Tit.I,cli.TI.art.I.]MAPvniED women— STOCK. §323 tries upon the books thereof, or to transfer stock therein, or to issue a certificate or certificates therefor to the transferee as provided by this and the next preceding section, such officer shall l)e suliject to a penalty of four hundred dollars, to be recovered as liquidated damages, in an action brought against him by the person aggrieved. History: Enacted March 21, 1872; amended March 26, 1895, Stats, and Amdts. 189.^, p. 118; amended March 22, 1907, Stats, and Amdts. 1907, p. 854, Kerr's Stats, and Amdts. 1906-7, p. 404. This section traceable to Act April 22, 1850, § 12 (Weston vs. Bear River & Auburn W. & M. Co., 5 Cal. 186, 187, 63 Am. Dec. 117; Winter vs. Belmont Min. Co., 53 Cal. 428, 431); the Act of 1853 did not substantially alter § 12 (Weston vs. Bear River & Auburn W. & M. Co., 6 Cal. 425, 429); as to effect of amendatory act of 1854 (p. 84) see People vs. Crockett, 9 Cal. 112, 114. Wisconsin adopted their statute from this section of the code. — See In re Application of Murphy, 51 Wis. 519, 8 N. W. Rep. 419, 420, 421. §325. MARRIED WOMAN MAY TRANSFER STOCK; DIVIDENDS PAID TO HER; HER PROXY. Shares of stock in corporations standing on the books of the corpora- tion in the name of a married woman may be transferred by her, her agent or attorney, without the signature of her hus- band, and in the same manner as if such married woman were a feme sole. All dividends payable upon any of such shares of stock may be paid to her, her agent or attorney, in the same manner as if she were unmarried; and any proxj^ or power given by her, touching any of such shares, is valid and binding, and neither it nor any receipt for dividends need be signed by her husband. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 350, held unconstitutional; see history, § 4 ante; amendment re- enacted March 20, 1905, Stats, and Amdts. 1905, p. 397. 127 §§326,327 CIVIL CODE. [Div.I.Pt.IV. §326. AFFIDAVIT OR BOND MAY BE REQUIRED BEFORE TRANSFER. When the shares of stock in a cor- poration are owned by parties residing out of the state, the president, secretary, or directors of the corporation, before entering any transfer of the shares on its books, or issuing a certificate therefor to the transferee, may require from the attorney or agent of the non-resident owner, or from the person claiming under the transfer, an affidavit or other evi- dence that the non-resident owner was alive at the date of the transfer, and if such affidavit or other satisfactory evi- dence be not furnished, may require from the attorney, agent, or claimant, a bond of indemnity, with two sureties, satis- factory to the officers of the corporation; or, if not so satis- factory, then one approved by a judge of the superior court of the county in which the principal office of the corporation IS situated, conditioned to protect the coporation against any liability to tj"ie legal representatives of the owner of the shares, in case of his or her death before the transfer; and if such Affidavit or other evidence or bond be not furnished when required as herein provided, neither the corporation nor any officer thereof shall be liable for refusing to enter the trans- fer on the books of the corporation. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1S73-4, p. 205; Feb. 16, 1883, Stats, and Amdts. 1883, p. 4. In force Feb. 16, 1883. §327. CONTRACTS TO RELIEVE DIRECTORS FROM LIABILITIES FIXED BY CONSTITUTION VOID. Any contract or contracts, verbal or written, here- after made, whereby it is sought directly or indirectly to re- lieve any director or trustee of any corporation or joint stock association from any liability imposed by section three, of article twelve of the constitution of California, are hereby declared to be and shall be null and void. History: Enacted April 12, 1880, Code Amdts. 1880, p. 9. In force April 12, 1880. 128 Tit.I.ch.lI.art.I.] LOST CERTIFICATE. §328 §328. LOST, ETC., CERTIFICATE; ACTION FOR NEW CERTIFICATE; PARTIES; PROCEDURE. When- ever a certificate of stock or of shares in a corporation or- ganized under the laws of this state has been lost, destroyed or wrongfully withheld, the owner thereof may bring an action against such corporation in the superior court of the county in which is located its principal place of business, for the purpose of obtaining a new or duplicate certificate. If by the books of the corporation the stock stands in the name of a person other than the plaintiff, or if by such books it appears that some other person claims or has some right, title, or interest in, or lien upon, such stock, all such per- sons must be made parties defendant with the corporation. [Summons and notice.] Summons must be issued and served as in other civil actions, and in addition thereto, tne court must direct its clerk to issue and cause to be published, at least once a week for four successive weeks, in some newspaper published in the county, a notice setting forth the pendency of the action, the names of the parties thereto, the court in which it is pending, the name of the corporation issuing the stock, the number of the certificate and the num- ber of the shares, the name of the person mentioned as stock- holder in the certificate, and notifying all persons claiming said shares, or any of them, or any interest or lien therein or thereupon, to be and appear before the court at a time and place to be designated in the notice not less than thirty days from the first publication thereof, then and there to show cause why a new certificate should not be directed to be issued to the plaintiff, and to set forth their rights in or claim to such shares. [Proceeding on answer — Judgment] If any one appears and answers or intervenes in the action, it must proceed to trial as in other civil cases, and the court must enter judg- ment as from the facts established may be proper; but if no one appears within the time designated in such notice, nor within the time allowed by law after the service of such 5 129 §329 , CIVIL CODE. [Div.I,Pt.IV. Bummons, the court must hear such evidence as may be of- fered in support of the allegations of the complaint, and make and file its decision thereon, and thereupon may enter its judgment cancelmg the lost, destroyed or wrongfully with- held certificate and directing the corporation, upon payment to it of all costs incurred by it in the premises and without costs against the corporation, to issue to the plaintiff a new or duplicate certificate. After the issuing of a new certificate by the corporation pursuant to any judgment in such action, no action can ever be maintained by any person against the corporation in ref- erence to said lost or destroyed certificate or the shares rep- resented thereby, and thereafter any such action is forever barred as against the corporation. History: Enacted March 20, 1905, Stats, and Amdts. 1905, p. 500. §329. BURNED BONDS, PROCEDURE TO OBTAIN DUPLICATES. Whenever a bond or bonds of a corpora- tion organized under the laws of this state or of any other state, or any territory of the United States has or have been lost or destroyed in this state by fire, earthquake, or other calamity, the owner thereof may bring an action against such corporation and the trustee or mortgagee of such bonded in- debtedness in the superior court of the county in which such bond or bonds were lost or destroyed, or in which owner resides, or in which is located the principal place of business of such corporation for the purpose of obtaining a new or duplicate bond or bonds. If said bond or bonds stand in the name of, or are registered in the name of a person other than the plaintiff, or if it appears by the books of the corporation that any other person claims or has some right, title, interest in, or lien upon such bond or bonds, all such persons must be made parties defendant with the corporation and the trustee and mortgagee. 130 Tit. I, ch. II, art. I.] BURNED BONDS — DUPLICATES. §329 [Form of summons.] Summons must be issued and served as in other civil actions and in addition thereto the court must direct its clerk to issue and cause to be published at least once a week, for four successive weeks, in some news- paper published in the county a notice seting forth the pend- ency of the action, the names of the parties thereto, the court m which it is pending, the name of the corporation which had issued the bond or bonds, the number of said bond or bonds, if any, and the amount thereof, and the person in whose name the same stands or is registered, and notifying all persons claiming said bond or bonds, or any of them or any interest or lien therein or thereupon, to be and appear before the court at a time and place to be designated in the notice, not less than thirty days from the first publication thereof, then and there to show cause why a new bond or bonds should not be directed to be issued to the plaintiff and to set forth their rights in, or claims to such bond or bonds. If any one ap- pears and answers or intervenes in the action it must pro- ceed to trial as in other civil cases and the court must en- ter judgment as from the facts established may be proper; but if no one appears within the time designated in said not- ice, nor within the time allowed by law after the service of such summons, the court must hear such evidence as may be offered in support of the allegations of the complaint and make and file its decision thereon. [Entry of judgment — Indemnity.] And thereupon may en- ter its judgment canceling the lost or destroyed bond or bonds and directing such corporation, upon payment to it of all costs incurred by it in the premises, and upon payment to it of the money required and necessary to re-issue new bond or bonds and without costs against the corporation or other defendant, mortgagee or trustee; to issue to the plain- tiff a new or duplicate bond or bonds upon the said plaintiff giving proper indemnity to the said corporation and the said mortgagee or trustee. History: Enacted March 6, 1907, Stats, and Amdts. 1007, p. 116, Kerr's Stats, and Amdts. 190G-7, p. 404. 131 §§331,332 CIVIL CODE. [Div.I.Pt.IV. ARTICLE II. ASSESSMENT OF STOCK. § 331. Assessments, how levied. § 332. Limitation. How levied. § 333. Levy of assessment. Old assessment remaining unpaid. § 334. What order shall contain. § 335. Notice of assessment. Form. § 336 Publication and service of notice. § 337. Delinquent notice. Form. § 338. Contents of notice. § 339 How published. § 340. Jurisdiction acquired, how. § 341. Sale to be by public auction. § 342. Highest bidder to be purchaser. § 343. In default of bidders, corporation may purchase. § 344. Disposition of stock purchased by corporation. § 345. Extension of time of delinquent sale. [Notice]. § 346. Assessments shall not be invalidated. § 347. Action for recovery of stoclt, and limitation thereof. § 348. Proofs of publication and sale. § 349. Waiver of sale. Action to recover assessment. §331. ASSESSMENTS, HOW LEVIED. The directors of any corporation formed or existing under the laws of this state, after one fourth of its capital stock has been sub- scribed, may, for the purpose of paying expenses, conduct- ing business, or paying debts, levy and collect assessments upon the subscribed capital stock thereof, in the manner and form' and to the extent provided herein. History: Enacted March 21. 1872; amended March 30, 1874, Code Amdts. 1873-4, ^. 206. §332. LIMITATION. HOW LEVIED. No one assess- ment must exceed ten per cent of the amount of the capital stock named in the articles of incorporation, except in the cases in this section otherwise provided for, as follows: 132 Tit.I.ch.II.art.IL] LEVY OF ASSESSMENT. §§333,334 1. If the wliole capital of a corporation has not been paid up, and the corporation is unable to meet its liabilities or to satisfy the claims of its creditors, the assessment may be for the full amount unpaid upon the capital stock; or if a less amount is sufficient, then it may be for such a percentage as will raise that amount; 2. The directors of railroad corporations may assess tne capital stock in mstalments of not more than ten per cent per month, unless in the articles of incorporation it is other- wise provided; 3. The directors of fire or marine insurance corporations maj" assess such a percentage of the capital stock as they deem proper. History: Enacted March 21, 1872. §333. LEVY OF ASSESSMENT. OLD ASSESSMENT REMAINING UNPAID. Xo assessment must be levied while any portion of a previous one remains unpaid, unless: 1. The power of the corporation has been exercised in ac- cordance with the provisions of this article for the purpose of collecting such previous assessment; 2. The collection of the previous assessment has been en- joined; or 3. The assessment falls within the provisions of either the first, second, or third subdivision of section 332. History: Enacted March 21. 1872. § 334. WHAT ORDER SHALL CONTAIN. Every order levying an assessment must specify the amount thereof, when, to whom, and where payable; fix a day, subsequent to the full term of publication of the assessment notice, \jn which the unpaid assessments shall be delinquent, not less than thirty nor more than sixty days from the time ot mak- 133 §§335.336 CIVIL code. [Div.I.Pt.IV. ing the order levj-irg the assessment; and a day for the saie of delinquent stock, not less than fifteen nor more than sixty days from the day the stock is declared delinquent. History: Enacted March 21, 1872. §335. NOTICE OF ASSESSMENT. FORM. Upon the making of ths order, the secretary shall cause to be published a notice thereof, in the following form: (Name of corporation in full. Location of principal place of business.) Notice is hereby given, that at a meeting of the directors, held on the (date), an assessment of (amount) per share was levied upon the capital stock of the corporation, payable (when, to whom, and where). Any stock upon which this assessment shall remain unpaid on the (day fixed) will be delinquent and advertised for sale at public auction, and, unless payment Is made before, will be sold on the (day ap- pointed), to pay the delinquent assessment, together with costs of advertising and expenses of sale. (Signature of secretary, with location of office.) History: Enacted March 21, 1872. §336. PUBLICATION AND SERVICE OF NOTICE. The notice must be personally served upon each stockholder, or, in lieu of perspnal service, must be sent through the mail, addressed to each stockholder at his place of residence, if known, and if not known, at the place where the principal ofifice of the corporation is situated, and be published once a week, for four successive weeks, in some newspaper of gen- eral circulation and devoted to the publication of general news, published at the place designated in the articles of in- corporation as the principal place of business, and also in some newspaper published in the county in which the works of the corporation are situated, if a paper be published there- in. If the works of the corporation are not within a state or territory of the United States, publication in a paper of 134 Tit.I,ch.II,art.ll.] DELINQUENT NOTICE. §§337,338 the place where they are situated is not necessary. It" there be no newspaper published at the place designated as the principal place of business of the corporation, then the publica- tion must be made in some other newspaper of the county, if. there be one, and if there be none, then in a newspaper published in an adjoining countj\ History: Enacted March 21, 1S72; amended March 30, 1874, Code Amdts. 1S73-4, p. 206. §337. DELINQUENT NOTICE. FORM. If any por- tion of the assessment mentioned in the notice remains un- paid on the day specified therem for declaring the stock de- linquent, the secretary must, unless otherwise ordered by the board of directors, cause to be published in the same papers in which the notice hereinbefore provided for shall have been puolisheo, a notice substantially in the following form: (Xame in full. Location of the principal place of business.) Notice. — There- is delinquent upon the following described stock, on account of assessment levied on the (date), (and assessments levied previous thereto, if any), the several amounts set opposite the names of the respective sharehold- ers, as follows: (Names, number of certificate, number of shares, amount.) And in accordance with law (and an order of the board of directors, made on the [date], if any 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 assessments thereon, together with costs of advertising and expenses of the sale. (Name of the secretary, with location of office.) Hi.story: Enacted March 21, 1872, founded upon § 2 Act April 4, 1864, Stats. 1863-4, pp. 492-493. §338. CONTENTS OF NOTICE. The notice must specify every certificate of stock, the number of shares it represents, and the amount due thereon, except where cer- 135 §§339-341 CIVIL CODE. [Div.I.Pt.IV. tificates may not have been issued to parties entitled thereto, in which case the number of shares and amount due thereon, together with the fact that the certificates for such shares have not been issued, must be stated. Hi.story: Enacted March 21, 1872. §339. HOW PUBLISHED. The notice, when published in a daily paper, must be published for ten days, excluding Sundays and holidays, previous to the day of sale. When published in a weekly paper, it must be published in each issue for two weeks previous to the day of sale. The first publication of all delinquent sales must be at least fif- teen days prior to the day of sale. History: Enacted March 21, 1S72. §340. JURISDICTION ACQUIRED, HOW. By the publication of the notice, the corporation acquires jurisdic- tion to sell and convey a perfect title to all of the stock described in the notice of sale upon which any portion of the assessment or costs of advertising remains unpaid at the hour appointed for the sale, but must sell no more of such stock than is necessary to paj' the assessments due and costs of sale. History: Enacted March 21, 1872. §341. SALE TO BE BY PUBLIC AUCTION. On the day, at the place, and at the time appointed in the notice of sale, the secretary must, unless otherwise ordered by the directors, sell or cause to be sold at public auction, to the highest bidder for cash, so many shares of each parcel of the described stook as may be necessary to pay the assessment and charges thereon, according to the terms of sale; if pay- 136 Tit.I.ch.II.art.II.] SALE TO" HIGHEST BIDDER. §§342-344 ment is made before the time fixed for sale, the partj- pay- ing is only required to pay the actual cost of advertising, in addition to the assessment. History: Eracted March 21,1S72. §342. HIGHEST BIDDER TO BE THE PURCHASER. The person oTfering at such sale to pay the assessment and costs for the smallest number of shares or fraction of a share is the highest bidder, and the stock purchased must be transferred to him on the stock-books of the corporation, on payment of the assessment and costs. History: Enacted March 21, 1ST2. §343. IN DEFAULT OF BIDDERS, CORPORATION MAY PURCHASE. If, at the sale of stock, no bidder of- fers tlie amount of the assessments and costs and charges due, the same may be bid in and purchased by the corpora- tion, through the secretarj^, president, or any director there- of, 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 corpora- tion, and entry of the transfer of the stock to the corporation must be made on the books thereof. While the stock re- mains the property of the corporation it is not assessable, nor must any dividends be declared thereon; but all assessments and dividends must be apportioned upon the stock held by the stockholders of the corporation. History: Enacted March 21. 1S72. §344. DISPOSITION OF STOCK PURCHASED BY CORPORATION. All purchases of its own stock made by any corporation vest the legal title to the same in the cor- poration; and the stock so purchased is held subject to the control of the stockholders, who maj' make such disposition 137 §§345.346 CIVIL CODE. fDiv.I,Pt.IV. of the same as they deem fit, in accordance with the by-laws of the corporation or vote of a majority of all the remain- ing shares. Whenever any portion of the capital stock of a corporation is held by the corporation by purchase, a major- ity of the remaining shares is a majority of the stock for all purposes of election or voting on 3.ny question at a stock- holders' meeting. History: Enacted March 21, 1872. §345. EXTENSION OF TIME OF DELINQUENT STOCK SALE. [NOTICE.] The dates fixed in any notice of assessment or notice of delinquent sale, published accord- ing to the provisions hereof, ma}- be extended from time to time for not more than thirty days, by order of the directors, entered on the records of the corporation, or by the secre- tary, or assistant secretary, of the corporation w^hen delin- quent sale is restrained by order of court, or by judge there- of; but no order extending the time for the performance of any act specified in any notice is effectual unless notice of such extension or postponement is appended to and published with the notice to which the order relates. Historj-: Enacted March 12, 1872; amended May 20, 1913, Stats, and Amdts. 1913, p. 229. lo eflEect August 10, 1913. §346. ASSESSMENTS SHALL NOT BE INVALID- ATED. No assessment is invalidated b}' a failure to make publication of the notices hereinbefore provided for, nor by the non-performance of any act required in order to enforce the payment of the same; but in the case of any substantial error or omission in the course of proceedings for collection, all previous proceedings, except the levying of the assess- ment, are void, and publication must be begun anew. History: Enacted March 21, 1872. 138 Tit.I,ch.II,art.II.] RECOVERY OP STOCK. §§347,348 §347. ACTION FOR RECOVERY OF STOCK, AND LIMITATION THEREOF. No action must be sustained to recover stock sold for delinquent assessments, upon the ground of irregularity in the assessment, irregularity or de- fect of the notice of sale, or defect or irregularity in the sale, unless the party seeking to maintain such action first pays or tenders to the corporation, or the party holding the stock sold, 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 com- menced by the filing of a complaint and the issuing of a summons thereon within six months after such sale was made. History: Enacted March 21, 1872. §348. PROOFS OF PUBLICATION AND SALE. The publication of notice required by this article may be proved by the affidavit of the printer, foreman, or principal clerk of the newspaper in which the same was published; and the affidavit of the secretary or auctioneer is prima facie evi- dence of the time and place of sale, or the quantity and par- ticular description of the stock sold, and to whom, and for what price, and of the fact of the purchase money being paid. The affidavits must be filed in the office of the corporation, and copies of the same, certified by the secretary thereof, are prima facie evidence of the facts therein stated. Cer- tificates, signed by the secretary and under the seal of the corporation, are prima facie evidence of the contents thereof. History: Enacted March 21. 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 207. 139 §349 CAVii. CODE. [Div.I,Pt.IV. S349. WAIVER OF SALE. ACTION TO RECOVER ASSESSMENT. On the day specified for declaring the stock delinquent, or at any time subsequent thereto and before the sale of the delinquent stock, the board of directors may elect to waive further proceedings under this chapter for the col- lection of delinquent assessments, or any part or portion thereof, and may elect to proceed by action to recover the amount of thfe assessment and the costs and expenses al- ready incurred, or any part or portion thereof. History: Enacted March 21, 1872. 140 Tit. I, ch. 11 1, art. I.] POWERS OF CORPORATIONS. §354 CHAPTER III. CORPORATE POWERS. Article I. General Powers, §§ 354-365. II. Records, §§377-378. III. Examination of Corporations, §§382-384. IV. Judgment Against Corporations, §§ 388-393. ARTICLE I. GENERAL POWERS. § 354. Powers of corporations. § 355. Limitation of powers. § 356. Banking expressly proliibited. § 357. Misnomer does not invalidate instrument. § 358. Time in which must be organized and continuance of business. § 359. Increasing and diminishing capital stock. [Fictitious increase of stock void.] Bonded indebtedness, how created or increased. § 3 60. Corporations may acquire real property, and how much. § 361. Changing number of directors of corporation. § 361a. Transfer of franchise of corporation not valid without consent of the stockholders. § 362. Amendment of articles or certificate of incorporation. Filing, penalty. § 363. Corporations to own their own lots and buildings [re- pealed]. § 363[a]. Correction of erroneous filing of incorporation. Peti- tion, nature of. Action of court. § 364. Corporation may transfer foreign concessions. § 365. Restoration of lost records, certificates of stock, etc. §354. POWERS OF CORPORATIONS. Every corpor- ation, as such, has povv^er: 1. Of succession, by its corporate name, for the period limited; and when no period is limited, perpetually; 141 §§355,356 CIVIL CODE. [Div.I.Pt.IV. .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 af- fairs, and for the transfer of its stock; 7. To admit stockholders or members, and to sell their stock or shares for the payment of assessments or instal- ments; 8. To enter into any obligations or contracts essential to the transaction of its ordinary affairs, or for the purposes of the corporation. History: Enacted March 21, 1872. § 355. LIMITATION OF POWERS. In addition to the powers enumerated in the preceding section, and to those expressly given in that title of this part under which it is incorporated, no corporation shall possess or exercise any corporate powers, except such as are necessary to the exer- cise of the powers so enumerated and given. History: Enacted March 21, 1872. §356. BANKING EXPRESSLY PROHIBITED. No corporation shall create or issue bills, notes, or other evi- dences of debt, upon loans or otherwise, for circulation as money. History: Enacted March 21, 1872. 142 Tit.I,ch.III,art.I.] TIME IN which to organize §§357,358 §357. MISNOMER DOES NOT INVALIDATE IN- STRUMENT. The misn(5mer of a corporation in any writ- ten instrument does not invalidate the instrument, if it can be reasonably ascertained from it what corporation is in- tended. History: Enacted March 21, 1872. §358. TIME IN WHICH MUST BE ORGANIZED, AND CONTINUANCE OF BUSINESS. If a corporation does not organize and commence tiie transaction of its busi- ness, or the construction of its works within one year from the date of its incorporation, or if, after its organization and commencement of its business, it shall lose or dispose of all its property, and shall fail for a period of two years to elect officers and transact, in regular order, the business of said corporation, its corporate powers shall cease, and the said corporation may be dissolved at the instance of any creditor of the said corporation, at the suit of the state, on the in- formation of the attorney-general, but the resumption of its business in good faith by such corporation prior to the com- mencement thereof shall be a bar to such suit. [Collateral attack not allowed.] The due incorporation of any company claiming in good faith to be, a corporation un- der this part, and doing business as such, or its right to ex- ercise corporate powers, shall not be inquired into collater- ally in any private suit to which such de facto corporation may be a party; but such inquiry may be had at the suit of the state on information of the attorney-general; provided, however, as to any company claiming in good faith to be, and which has been doing business for ten consecutive years as a corporation, no such inquiry shall be made either by the state or by any person whatsoever. History: Enacted March 21, 1872; amended March 23, 1901, Stats, and Amdts. 1900-1, p. 632. 143 §359 CIVIL CODE. [Div.I.Pt.IV. §359. INCREASING AND DIMINISHING CAPITAL STOCK. [FICTITIOUS INCREASE OF STOCK VOID.] BONDED INDEBTEDNESS, HOW CREATED OR IN- CREASED. No corporation shall issue stocks or bonds ex- cept for money paid, labor done or property actually re- ceived, and all fictitious increase of stock or indebtedness is void. Every corporation may increase or diminish its capital stock, and every corporation, or two or more corporations, may create or increase its or their bonded indebtedness, sub- ject to the following provisions: 1. [How capital stock may be increased or diminished.] The capital stock of a corporation may be increased or dim- inished at a meeting of the stockholders by a vote represent- ing at least two-thirds of the subscribed or issued capital stock, or in the manner otherwise in this section provided; when by meeting as aforesaid, then such meeting must be called by the board of directors or trustees, and notice must be given by publication in a newspaper published in the county or city and county where the principal place of busi- ness of the corporation is located, or if thert be none pub- lished in said county or city and county, then in a newspaper published in an adjoining county, or city and county, such paper to be designated by the board of directors or trustees in the order calling for the meeting; proviaed, however, that where the articles of incorporation provide for two or more kinds of capital stock, no increase or reduction of capital stock shall be made v/ithout the assent of two-thirds of all the subscribed stock, and in making such increase or reduc- tion, tlie assent shall identify the particular class or classes of stock to be increased or reduced, and the amounts appor- tioned to eacn. 2. [What notice must specify.] The notice must specify the object of '■he meeting and the amount to which it is pro- posed to mcrease or diminish the capital stock, the time and place of Iiolding the meeting, which latter must be at the principal place of business of the corporation and at the 144 Tit. I, ch.IJI, art. I.] CREATING BONDED INDEBTEDNESS. § 359 building where the buard of directors or trustees usually meet. The notice herein provided must be published once a week lor at least sixty days. The capital stock cannot be diminished to an amount less than the indebtedness of the corporation. o. [How bonded indebtedness may be created or increased.] The bonded mdebtedness of a corporation may be created or increased by a vote of the stockholders representing: at least two-thirds of the subscribed or issued capital stock at a meeting called by the board of directors of trustees, and after notice of the time and place of the meeting published in the same manner and for the time prescribed, which notice shall state the amount of the bonded indebtedness which it is proposed tc create, or the amount to which it is proposed to increase such indebtedness, and shall in all other respects contain the same matters as are above provided and set forth in the notice of meeting to increase or diminish the capital stock; or such original creation of bonded indebtedness may be made as otherwise in this section provided. 4. [Notification to stockholders.] In addition to the notice by publication, when proceedings are to be had hereunder at a meeting of stockholders, the secretary of the corporation shall also address a notice to each of the stockholders whose names appear on the company's books as sufficiently ad- dressed or identified, at his place 01 residence, if known, and if not known, then at the place in which the principal place of business of the corporation is situate, which notice shall be so mailed to such stockholders at least thirty days before the day appointed for such meeting. 5. [Directors may diminish stock and create indebted- ness.] In lieu of such call for meeting of stockholders and of such notice and publication of the same and of a stock- holders' meeting held in pursuance thereof and of said vote thereat representing at least two-thirds of the subscribed cap- ital stock, any corporation may diminish its capital stock and also originally create its bonded indebtedness by a reso- 145 §359 CIVIL CODE. [Div.I.Pt.IV. lution adopted by the unanimous vote of its board of direc- tors or trustees at a regular meeting or at a special meeting called for that purpose and approved by the written assent or assents of the stockholders, holding two-thirds of the sub- scribed or issued capital stock, which assent or assents must be filed with the secretary of the corporation; but the secre- tary of the corporation must address by mail, postage fully prepaid, a copy of such resolution to each of the stockholders whose names appear upon the company's books as sufficiently addressed or identified, at his place of residence, if known, and if not known, then at the place in which the principal place of business of the corporation is situate, which notice shall be so mailed to such stockholders at least thirty days before the certificate hereinafter provided is made and signed or filed, as hereinafter provided, and within that time any stockholder may file with such secretary his dissent in writ- ing; but it is further provided, that if at any time within said thirty days such written assent or assents of the stockhold- ers holding all of the subscribed or issued capital stock be so filed with said secretary, then and at once and without further delay the certificate hereinafter provided for may be so made, signed and filed as hereinafter provided and with the same efTect. [Limit of diminution.] But such capital stock cannot be diminished to an amount less than the indebtedness of the corporation, and no increase of capital stock or bonded in- debtedness can be made, except at a meeting of stockholders as in this section provided. 6. [Consolidated indebtedness.] Any two or more cor- porations may by a separate compliance by each corporation with the provisions of this section applicable in the prem- ises in respect to creating or increasing bonded indebted- ness, create or increase a consolidated bonded indebtedness of such corporations, to be binding jointly and severally on such corporations, and which may be secured by a consoli- dated mortgage or deed of trust executed by all such cor- 146 Tit.I,ch.III,art.I.] CERTIFICATE OF INCREASE, ETC. §359 porations, mortgaging or conveying in trust all or any of the properties of all such corporations, acquired or to be ac- quired. 7. [Certificate of increase or diminution.] Upon such in- crease or diminution of the capital stock or creation or in- crease of the bonded indebtedness being made in accordance with the provisions of this section there shall be made, if proceedings are had under subdivisions first, second, third and fourth above, a certificate under the corporate seal and signed by the president and secretary of the corporation or of each corporation acting in the premises and a majority of the directors or trustees of such corporation, or each cor- poration so acting, showing a compliance by such corporation, or each corporation so acting, with the requirements of said last-named subdivisions and the amount to which the capital stock has been increased or diminished or the amount of the bonded indebtedness created, or to which the bonded indebted- ness may have been increased, and the amount of stock repre- sented at the meeting and the total vote in the affirmative by which the same was accomplished and the total vote in the negative; or if such proceedings be had and taken under sub- division fifth of this section as to diminution of capital stock or original creation of bonded indebtedness a like certificate shall be made and sealed and signed, as aforesaid, showing a compliance by such corporation, and by each corporation acting in the premises, with the requirements of said sub- division fifth, and the amount to which the capital stock has been diminished or the amount of bonded indebtedness so originally created, and the total amount of the stock repre- sented by the said written assent or assents so filed with the secretary and the total amount of stock represented by the said written dissent or dissents so filed. In case of a con- solidated bond of indebtedness each corporation which is a party thereto shall cause to be made and signed and sealed and verified and filed, as in this section provided, a separate certificate. 147 §359 CIVIL CODE. [Div.I,Pt.IV. 8. [What certificate shall state.] In all cases the certifi- cates shall state the total number of subscribed or issued shares of the capital stock of the corporation, or of each corporation respectively acting in the premises, and shall be verified by the oath of the said president and secretary, or of the said respective presidents and secretaries. Such con- solidated bonded indebtedness may be created or increased to an amount equal to the par or face value of the aggregate amount of the subscribed or issued capital stock of said two or more corporations, but shall not exceed such aggregate amount. [Where filed.] In each and every case the certificate must be filed in the ofhce of the clerk in the county or city and county where the original articles of incorporation of the corporation or corporations acting hereunder afe filed and a certified copy thereof, certified by such clerk, shall be filed in the office of the secretary of state; and thereupon the capital stock shall be so increased or diminished, or the bonded indebtedness or consolidated bonded indebtedness shall be created or increased accordingly, and such certificate or certificates so filed shall be, when said certified copy or copies are so filed, conclusive proof of such increase or di- minution of capital stock or such creation or increase of bonded or consolidated bonded indebtedness and the validity of each thereof. [Publication of notices.] When the by-laws of a corpora- tion prescribe the paper in which notices of meetings of directors or trustees or stockholders are to be published the notices of publication herein provided for shall be published in such paper, unless publication thereof shall have ceased. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1S73-4, p. 207; March 3, 1883, Stats, and Amdts. 1883, p. 31; March 18, 1885, Stats, and Amdts. 1885, p. 141; March 19, 1889, Stats, and Amdts. 1889, p. 364; March 23, 1893, Stats, and Amdts. 1893, p. 191; March 21, 1903, Stats, and Amdts. 1903, p. 347; amended March 18, 1907, Stats, and Amdts. 1907, pp. 439- 452, Kerr's Stats, and Amdts. 1906-7, pp. 405-408. 148 Tit.I.ch.III.art.I.] ACQUIRING REAL PROPERTY. §§ 360, 361 §360. CORPORATIONS MAY ACQUIRE REAL PROPERTY, AND HOW MUCH. No corporation shall acquire or hold any more real property than may be rea- sonably necessary for the transaction of its business, or the construction of its works, except as otherwise specially pro- vided. A corporation may acquire real property, as pro- vided in title seven, part three, of the Code of Civil Pro- cedure, when needed for any of the uses and purposes men- tioned in said title. By a unanimous vote of all the directors at any regular meeting, any corporation existing, or hereafter to be formed under the laws of this state, may acquire and hold the land and building on and in which its business is carried on, and may improve the same to any extent required for the con- venient transaction of its business. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 208; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 351, held unconsti- tutional, see history, §4 ante; amendment re-enacted March 22, 1905, Stats, and Amdts. 1905, p. 774. §361. CHANGING NUMBER OF DIRECTORS OF CORPORATION. Any corporation or association may in- crease or diminish the number of its directors or trustees by the vote or written assent of stockholders representing a majority of its subscribed capital stock, or, if it has no capital stock, by the vote or written assent of a majority of the members. A certificate over the corporate seal, setting forth the action taken by the stockholders, or members, and stating the new number of directors, shall be signed by the president and secretary of such corporation or association, and filed in the office of the county clerk of the county where its original articles of incorporation were filed, and a copy of said certificate, certified by such county clerk, shall be filed in the office of tlie secretary of state, whereupon the number 149 §§ 361a, 362 civil code. [Div.I.Pt.IV. of directors or trustees shall be changed as stated in said certificate. History: Original section, relating to consolidation of Min- ing Companies on joining claims, enacted March 21, 1872, amended March 20, 1876, Code Amdts. 1875-6, p. 75, repealed by Code Commission, Act March 18, 1901, Stats, and Amdts. 1900-1, p. 351, Act held unconstitutional, see History, § 4 C. C; re- repealed March 22, 1905, Stats, and Amdts. 1905, p. 775, present section enacted as a new section and given the same number June 11, 1915, Stats, and Amdts. 1915, p. 1456. In effect August 10, 1915. §361a. TRANSFER OF FRANCHISE OF CORPORA- TION NOT VALID WITHOUT CONSENT OF STOCK- HOLDERS. No sale, lease, assignment, transfer or con- veyance of the business, franchise and property, as a whole, of any corporation now existing, or hereafter to be formed in this state, shall be valid without the consent of stock- holders thereof, holding of record at least two-thirds of the issued capital stock of such corporation; such consent to be either expressed in writing, executed and acknowledged by such stockholders, and attached to such sale, lease, assign- ment, transfer or convej^ance, or by a vote at a stockholders' meeting of such corporation called for that purpose; but with such assent, so expressed, such sale, lease, assignment, transfer or conveyance shall be valid; provided, however, that nothing herein contained shall be construed to limit the power of the directors of such corporati&n to make sales, leases, assignments, transfers or conveyances of corporate property other than those hereinabove set forth. History: Enacted March 24, 1903, Stats, and Amdts. 1903, p. 396. §362. AMENDMENT OF ARTICLES OR CERTIFI- CATE OF INCORPORATION. FILING, PENALTY. Any corporation organized under the laws of this state may 150 Tit.I,ch.III,art.I.] AMENDING ARTICLES. §362 amend its articles of incorporation for any or all of the fol- lowing purposes: 1. To set forth a new name. 2. To alter or repeal any provision appearing in its orig- inal or amended articles of incorporation relative to the pur- poses for which the corporation is formed, or to set forth, additional powers or purposes. 3. To designate a principal place of business other than the place designated in its original or amended articles of incorporation. 4. To state the date to which its existence has been ex- tended. 5. To state the number of its directors, as increased or di- minished. 6. To state the amount of its capital stock as increased or diminished and the number of shares and the par value thereof, or to change the num.ber of shares and their par value or to provide for the classification of its capital stock into preferred and common shares, in which event there must be set forth a statement of the number of shares of stock to which preference is granted and the number of shares of stock to which no preference is granted, also a clear and suc- cinct statement of the nature and extent of the preference granted, and except as to the matters and things so stated, no distinction shall exist between said classes of stock or the owners thereof; provided, however, that no preference shall be granted nor shall any distinction be made between the classes of stock either as to voting power or as to the stat- utory or constitutional liability of the holders thereof to the creditors of the corporation; and provided, further, that both the preferred and common shares shall be of the same par value. 7. To change the statement appearing in its original or amended articles of incorporation of the nature and extent of such preference, subject to the above limitations. 151 §362 CIVIL CODE. [Div.T,Pt.IV. 8. [Majority vote of directors.] And generally to provide for any other amendment not contrary to law. The articles of incorporation may be amended as aforesaid by a majority vote of the board of directors of the corporation and by the vote or written assent of the holders of at least two-thirds of the subscribed capital stock of such corporation, or if the corporation has no capital stock then by a majority vote of its board of directors and by the vote or M^ritten assent of a majority of the members. Upon the adoption of amended articles of incorporation, a copy of the articles as thus amended shall be certified to as correct by the president and secretary and a majority of the directors of the corporation and the corporate seal of such corporation shall be affixed to the certificate. Such certificate shall also set forth the pro- ceedings by virtue of which the amended articles were adopt- ed, which proceedings must be in accordance with the pro- visions of this section above set forth. [Amended articles filed.] The copy of amended articles of incorporation, thus certified, shall be filed in the office of the county clerk of the county in which the original articles of incorporation of such corporation were filed, and a copy thereof, certified by such county clerk, shall be filed in the office of the secretary of state, whereupon such corporation shall have the same powers, and the stockhold- ers thereof shall thereafter be subject to the same liabilities, as if such amendment had been embraced in the original articles of incorporation. A copy of such copy, certified by the secretary of state, shall be filed in the ofifice of the county clerk of every county in which such corporation has or holds real property, except only the county in which the original articles of incorporation were filed. Any corporation which shall amend its articles of incorporation and shall fail to file copies of its amended articles, as required by the preceding sentence, shall be subject to the penalties and liabilities pro- vided in section two hundred and ninety-nine for a failure of corporations to file copies of their articles of incorporation 152 Tit.I.ch.II I, art. I.] AMENDMENT— CHANGES. §§363, 363[a] in the office of the county clerks of the counties in which they shall purchase, hold, or locate property. [Changes not permitted.] Nothing contained in this sec- tion must be construed to cure or amend any defect existing in the original articles of incorporation, where such defect is of such character as to render such original articles in- valid. And it is hereby expressly provided that no corpora- tion shall amend its articles of incorporation to alter the statements which appear in the original articles, of the names and residences of the first directors or the statements which appear in such originals, of the amount of capital stock sub- scribed and by whom. Nothing appearing herein shall be construed as permitting a corporation to change its name or its principal place of business, extend or reduce its term of existence, or increase or diminish its number of directors or its capital stock, by amending its articles of incorporation. History: Enacted March 21, 1872; amended March 12, 1885, Stats, and Amdt.s. 1885, p. 91; March 11, 1893, Stats, and Amdts. 1893, p. 131; amended by Code Commission Act March 16, 1901, Stats, and Amdts. 1900-1, p. 351, Act held unconstitutional, see History, §4 C. C; amended March 25, 1903, Stats, and Amdts. 1903, p. 411; March 22, 1905, Stats, and Amdts. 1905, p. 775; June 11, 1915, Stats, and Amdts. 1915, p. 1457. In eflfeot August 10, 1915. §363. CORPORATIONS TO OWN THEIR OWN LOTS AND BUILDINGS [repealed]. History; Enacted March 5, 1889, Stats, and Amdts. 1889, p. 67. At the same session another section numbered § 363 was enacted by the same legislature on March 19 (Stats, and Amdts. 1889, p. 332). The Act of March 5 was repealed by Code Com- mission, Act of March 16, 1901, Stats, and Amdts. 1900-1, p. 352, held unconstitutional, see history, § 4 ante, and the act was re-repealed March 22, 1905, Stats, and Amdts. 1905, p. 776. §363 [a]. CORRECTION OF ERRONEOUS FILING OF INCORPORATION. PETITION, NATURE OF. ACTION OF COURT. When articles of incorporation have 153 §363[a] CIVIL CODE. [Div.I,Pt.IV. 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 incorporation, any stockholder or director of such corporation may petition the superior court of the county in which said original articles of incorporation were filed for an order to withdraw such original articles of incorporation, and file in place thereof a certified copy of the copy thereof on file in the office of the secretary of state. Such petition must be verified, and must state clearly the facts, showing that such articles of incorporation were filed by 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 publication in a newspaper published in the countj^ where such petition is filed. [Hearing and proceedings on order.] 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 cop}- of the copy in the office of the secretary of state in the place thereof filed; and the or- iginal articles of incorporation must be filed within ten days thereafter in the county in which the principal place of [where] business is to be transacted, as stated in such articles of incorporation, and a certified copy of the order allowing such action must be filed with the certified copy in the office of the secretary of state, after which said corporation shall be entitled to all rights and privileges of a private corpora- tion, and the title to any property it may have previously acquired shall not be afifected by reason of the failure to file the original articles of incorporation in the first instance. History: Enacted March 19, 1SS9, Stats, and Amdts. 18S9, p. 332. In force March 19, 18S9. 154 Tit.I,ch.III.art.I.] CONCESSIONS— LOST RECORDS. §§364,365 § 364. CORPORATIONS MAY TRANSFER FOREIGN CONCESSIONS. Any corporation of this state owning grants, concessions, franchises, and properties, or any there- of, in any foreign country, may sell and convey the same co the government of such foreign country, or to any person or persons, or any corporation or corporations, or associa- tion or associations, created by or existing under the laws of this or any other state or the United States, or any for- eign government; provided, however, that the powers hereby granted shall only be exercised by a majorit}^ of the entire board of directors of such corporation of this state, with the concurrence in writing of the holders of two-thirds in amount of the capital stock thereof. History: Became law, under unconstitutional provision, with- out governor's approval, March 13, 1899. §365. RESTORATION OF LOST RECORDS, CER- TIFICATES OF STOCK, ETC. Whenever it shall appear that the minutes, records, seal, assessment book, stock jour- nal, stock ledger, certificate book, certificate of stock or bonds or other papers or records of any corporation, mu- nicipal, quasi or otherwise, in this state, shall have been or shall hereafter be lost or destroyed by conflagration or other public calamity, such corporation, by a vote of its board of directors, or any stockholder or bondholder of such cor- poration, may petition the superior court of the county, or city and county, in which the principal place of business of such corporation is located, to restore such lost, destroyed, or injured minutes, records, seal, assessment book, stock journal, stock ledger, certificate book, certificate of stock or bonds or other papers or records. Such petition shall state the loss, destruction or injury to any such records or docu- ments or certificates of stock or bonds, or other papers or records, or any part or portion thereof, giving the cause of such loss, injury or destruction. 155 §365 CIVIL CODE. [Div.I,Pt.IV. [Petition filed with court.] On the fihng of such petition, duly verified, said superior court shall make an order, fixing a time and place for the hearing of the same, and directing the clerk of the court to give notice of such a hearing by publication of a notice stating the time and place of the hearing of said petition and the purpose thereof, v^'hich time shall not be less than twenty-five nor more than thirty days from the completion of such publication. [Publication of notice of hearing.] Notice of such hearing shall be given by publication in some newspaper of general circulation, printed and published in such county, or city and county, where the principal place of business of said corporation is located, and if there be no such newspaper published in said county, or city and county, then in some adjoining county, to be designated by the court or judge thereof, which publication shall be daily (except Sundays) for a period of at least three successive weeks. In case there is no daily newspaper published in either of said counties then such notice shall be published once a week for three suc- cessive weeks in a weekly newspaper published in such county. [Service of notice.] A copy of said notice shall also be personally served upon all persons affected thereby residing in the state of California, whose place of residence or place of business is known to the corporation or any of its officers, if such person can be found within the state, which service may be made at any time during said period of publication. If the place of business or place of residence of any persons affected by said petition or proceeding is unknown to the corporation or any of its officers, within forty-eight hours after the filing of said petition, a copy of said notice shall be mailed to each of the persons affected by said petition or proceeding whose place of residence or place of business is unknown to said corporation or any of its officers, addressed to them, postage prepaid, at the county seat of the county', or county and city, where the place of business of said cor- 156 Tit. I, ch. Ill, art. I.] PROOF OF SERVICE OF NOTICE. §355 poration is located. In addition to the notice by publication, the petitioner shall address a copy of said notice to each of the stockholders of said corporation, and also to each of the persons affected by said petition, whose names and places of residence or business are known to the corporation or any of its officers, at his place of business or residence, postage prepaid, which notice shall be mailed to such stockholders or persons within forty-eight hours after the filing of said petition. [Proof required of publication and service of notice.] The court before proceeding to hear the case, shall require proof to be made that notice has been published and given as here- inbefore required and service of such notice personally if the same has been so served and if the same has not been so served, an affidavit of the petitioner stating the reasons why such personal service has not been made, shall also be then filed. [Jurisdiction of court — Judgment and decree.] Upon the completion of said publication, said court shall have jurisdic- tion to inquire into and determine the loss, injury or destruc- tion of such minutes, records, seal, assessment book, stock journal, stock ledger, certificate book, certificates of stock or bonds, or other papers and documents, and to fix and deter- mine by its judgment or decree, the ownership of said cer- tificates of stock or bonds and the persons entitled thereto, and to direct such corporation to restore its records, seal, assessment book, stock journal, stock ledger, certificate book, certificates of stock or bonds or any other paper or record so lost, injured or destroyed, and to issue new bonds or cer- tificates of stock or other paper or document to any person or persons to whom the same may belong or who may be en- titled thereto, as determined bj' the judgment of the court. [Unknown owners — Sale of stock for delinquent assess- ments.] Any stock, bond or other paper, the owner.'^hip of which cannot be determined, shall be found by the court, by its judgment, to belong to unknown owners, and in all 157 §365 CIVIL CODE. [Div.I,Pt.IV. proceedings of such corporation, including proceedings for assessment of stock, and the collection of such assessment, and the payment of dividends, and notice of sale and sale for delinquent assessments, said stock or dividends shall be so designated as belonging to unknown ov^^ners, without giv- ing the name of the owner thereof or the number of the certificate or series or issue. Historj-: Enacted June 18, 1906,' Stats, and Amdts. 1906, pp. S4-S6. Kerr's Stats, and Amdts. 1906-7, pp. 408, 409. In effect immediately. 158 Tit.I,ch.III,art.II.] RECORDS— HOW KEPT. §§377,378 ARTICLE II. RECORDS. § 377. Records — Of what, and hov/ kept. [Record must em- brace what.] § 378. Other records t® be kept by corporations for profit, and others. § 377. RECORDS— OF WHAT, AND HOW KEPT. All corporations for profit are required to keep a record of all their business transactions; a journal of all meetings of their directors, members, or stockholders, with the time and place of holding the same, whether regular or special, and if spe- cial, its object, how authorized, and the notice thereof given. The record must embrace every act done or ordered to bt 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 ab- sence therefrom. On a similar request the ayes and noes must be taken on any proposition, and a record there- of made. On similar request, the protest of any director, member, or stockholder, to any action or proposed action, must be entered in full — all such records to be open to the inspection of any director, member, stockholder, or cred- itor of the corporation. History: Enacted March 21, 1872. §378. OTHER RECORDS TO BE KEPT BY COR- PORATIONS FOR PROFIT, AND OTHERS. In addition to the records required to be kept by the preceding section, corporations for profit must keep a book, to be known as the "Stock and Transfer Book," in which must be kept a record of all stock; the names of the stockholders or mem- bers, alphabetically arranged; installments paid or unpaid; 159 §378 CIVIL CODE. [Div.l.Pt.lV. assessments levied and paid or unpaid; a statement of every alienation, sale, or transfer of stock made, the date thereof, and by and to whom; and all such other records as the by- laws prescribe. Corporations for religious and benevolent purposes must provide in their by-laws for such records to be kept as may be necessary. Such stock and transfer book must be kept open to the inspection of any stockholder, member, or cred- itor. History: Enacted March 21, 1872. 160 Tit.I,ch.III,art.III.] examination OF affairs. §§382,383 ARTICLE III. EXAMINATION OF CORPORATIONS, ETC. [This article was taken from the Statutes of 1850, §§ 29, 30, p. 350.] § 382. Examination into affairs of corporation, liow made by officers of state. § 383. Examination made by legislature. § 384. Chapter and article may be repealed. § 382. EXAMINATION INTO AFFAIRS OF CORPOR- ATION, HOW MADE BY OFFICERS OF STATE. The attorney-general or district attorney, whenever and as often as required by the governor, must examine into the affairs and condition of any corporation in this state, and report such examination, in writing, together with a detailed state- ment of facts, to the governor, who must lay the same be- fore the legislature; and for that purpose the attorney-gen- eral or district attorney may administer all necessary oaths to the directors and officers of any corporation, and may examine them on oath in relation to the afifairs and condition thereof, and may examine the books, papers, and documents belonging to such corporation, or appertaining to its affairs and condition. History: Enacted March 21, 1872. §383. EXAMINATION MADE BY THE LEGISLA- TURE. The legislature, or either branch thereof, may ex- amine into the affairs and condition of any corporation in this state at all times; and, for that purpose, any committee appointed by the legislature, or either branch thereof, may administer all necessary oaths to the directors, officers, and stockholders of such corporation, and may examine them on oath in relation to the affairs and condition thereof; and R 161 §384 CIVIL CODE. [Div.I.Pt.IV. may examine the safes, books, papers, and documents be- longing to such corporation, or pertaining to its affairs and condition, and compel the production of all keys, books, papers, and documents by summary process, to be issued on application to any court of record or any judge thereof, under such rules and regulations as the court may prescribe. HLstory: Enacted March 21, 1S72. §384. CHAPTER AND ARTICLE MAY BE RE- PEALED (repealed). Section three hundred and eighty-four of the Civil Code is hereby repealed; provided, however, that this shall not be deemed to repeal or otherwise affect section four hundred and four of said code; and provided further that no rights acquired under the provisions of said section three hundred and eighty-four shall be affected here- by, but the same shall be continued in force under the pro- visions of said sectiop four hundred and four. History: Enacted March 21, 1872; repealed by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 352, held unconstitutional; see liistory, § 69 ante; repealed March IS, 1907, Stats, and Amdts. 1907, p. 578, Kerr's Stats, and Amdts. 1906-7, p. 410. 162 Tit.I,ch.III,art.lV.] JUDGMENT— EXECUTION. §§388-390 ARTICLE IV. JUDGMENT AGAINST AND SALE OF CORPORATE PROPERTY § 3S8. Franchise sold under execution. § 3S9. Purchaser to transact business of corporation. § 390. Purchaser may recover penalties, etc. § 391. Liabilities same as before sale. § 392. Redemption. § 393. Sale, when made. §388. FRANCHISE SOLD UNDER EXECUTION. For the satisfaction of any judgment against any person, company, or corporation having any franchise other than the franchise of being a corporation, such franchise, and all the rights and privileges thereof, may be levied upon and sold under execution, in the same manner, and with the same effect, as any other property. Historj-t Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 208; Feb. 23, 1897, Stats, and Amdts. 1897, p. 16; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 352, held unconstitutional, see his- tory, § 4 ante; amendment re-enacted March 20, 1905, Stats, and Amdts. 1905, p. 409. §389. PURCHASER TO TRANSACT BUSINESS OF CORPORATION. The purchaser at the sale must receive a certificate of purchase of the franchise, and be immediately let into the possession of all property necessary for the ex- ercise of the powers and the receipt of the proceeds thereof, and must thereafter conduct the business of such corpora- tion, with all its powers and privileges, and subject to all its liabilities, until the redemption of the same, as hereinafter provided. History: Enacted March 21, 1872. §390. PURCHASER MAY RECOVER PENALTIES, ETC. The purchaser or his assignee is entitled to recover any 163 §§391-393 crviL code. [Div.I.Pt.lV. penalties imposed by law and recoverable by the corpora- tion 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 recover the same. A recovery for damages or any penalties thus had is a bar to any subsequent action by or on behalf of the cor- poration for the same. History: Enacted March 21, 1872. § 391. LIABILITIES SAME AS BEFORE SALE. The person, company, or corporation whose franchise is sold, as in this article provided, in all other respects retains the same powers, is bound to the discharge of the same duties, and is liable to the same penalties and forfeitures, as before such sale. Hi.stor.v: Enacted March 21. 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 352, held unconstitutional, see history, § 4 ante; amendment re-enacted March 20, 1905, Stats, and Amdts. 1905, p. 409. §392. REDEMPTION. Redemption from any such sale may be had as provided in the Code of Civil Procedure in the case of redemptions from sales of real estate on execu- tion. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 352, held unconstitutioal, see history, § 4 ante; amendment re-enacted March 20, 1905, Stats, and Amdts. 1905, p. 409. §393. SALE, WHERE MADE. The sale of any fran- chise under execution must be made in the county in which the corporation has its principal place of business, or in which the property, or some portion thereof, is situated. History: Enacted March 21, 1872; amended March 30, 1S74, Code Amdts. 1873-4, p. 209; by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 352, held unconstitutional, see history, § 4 ante; amendment re-enacted March 20, 1905, Stats, and Amdts. 1905, p. 409. 164 Tit.I,ch.IV.] EXTENSION AND DISSOLUTION. §§ 399-401 CHAPTER IV. EXTENSION AND DISSOLUTION OF CORPORATIONS. § 399. Proceedings on disincorporation [repealed]. § 400. Corporations, directors trustees of creditors^ wlien dis- solved, except. § 401. Extension of corporate existence, how made. Certifi- cate and certified copy, filing of. § 402. How corporations may continue their existence [re- pealed]. § 403. Title I to apply to all corporations, with certain excep- tions [repealed]. §399. PROCEEDINGS ON DISINCORPORATION [repealed]. History: Enacted March 21, 1872; repealed by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 352, held unconstitutional, see history, § 4 ante; repeal re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 563. §400. CORPORATIONS, DIRECTORS TRUSTEES OF CREDITORS, WHEN DISSOLVED, EXCEPT. Un- less other persons are appointed by the court, the directors or managers of the affairs of a corporation at the time of its dissolution are trustees of the creditors and stockholders or members of the corporation dissolved, and have full power to settle the affairs of the corporation. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 352, held unconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 563. §401. EXTENSION OF CORPORATE EXISTENCE, HOW MADE. [CERTIFICATE AND CERTIFIED COPY, FILING OF.] Every corporation heretofore or here- after formed, and existing under the laws of this state, may, 165 §401 CIVIL CODE. [Div.I.Pt.IV. at any time prior to the expiration of the term of its corpor- ate existence extend such terms to a period not exceeding fifty years from the date of such extension. Such extension may be made at any meeting of the stockholders, or mem- bers, called by the directors especially for considering the subject, if voted for by stockholders representing two-thirds of the capital stock; or by two-thirds of the members where there is no capital stock; or may be made upon the written assent of two-thirds of the members or of stockholders rep- resenting two-thirds of the capital stock. [Certificate filed with county clerk and secretary of state.] A certificate of such vote or assent shall be signed and sworn to by the president and secretary and by a majority of the directors of the corporation, and filed in the office of the county clerk where the original articles of incorporation were filed, and a copy certified by such clerk, shall be filed in the oliice of the secretary of state, and thereupon the term of existence of the corporation shall be extended for the pe- riod specified in such certificate. The fees for certifying such certificate and filing the same and the certified copy thereof, shall be the same as those prescribed by law for certifying and filing articles of incorporation in such cases. [Franchises.] In no event shall such extension be con- strued to prolong or extend the duration of any franchise or privilege heretofore granted to any corporation or joint stock company by special legislative act, or by the mimicipal au- thorities of any county, city, city and county, town, or other political subdivision of this state, beyond the term fixed by the provisions of the act, ordinance or resolution conferring such privilege or franchise, or beyond the term fixed for the maximum period of existence of such corporation or joint stock company by laws in force and governing the formation and organization thereof at the time such corporation or joint stock company was formed or organized. History-: Enacted March 21, 1S72; amended March 30, 1874, Code Amdts. 1873-4, p. 209; by Code Commission. Act March 16, 1901, Stats, and Amdts. 1900-1, p. 353, held unconstitutional, see 166 Tit.I.ch.IV.] EXTENSION AND DISSOLUTION. §§402,403 history, § 69 ante; amendments re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 564; amended March 18, 1907, Stats, and Amdts. 1907, p. 344, Kerr's Stats, and Amdts. 1906-7. p. 410. In elTect immediately. §402. HOW CORPORATIONS MAY CONTINUE THEIR EXISTENCE [repealed]. History: .Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 209. §403. TITLE I TO APPLY TO ALL CORPORA- TIONS, WITH CERTAIN EXCEPTIONS [repealed]. History: Enacted March 21, 1872; repealed March 20, 1905, Stats, and Amdts. 1905, p. 410. 167 §§403[a],404 civil code. [Div.I,Pt.IV. CHAPTER V. GENERAL PROVISIONS AFFECTING CORPORATIONS. § 403[a]. Title one to apply to all corporations, with certain ex- ceptions. § 404. Legislature may amend, etc., corporation laws and dis- solve corporations. §403[a]. GENERAL PROVISIONS APPLY, WHEN- SPECIAL PROVISIONS APPLY, WHEN. The provi- sions of this title are applicable 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 provison prevails. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 410. §404. LEGISLATURE MAY AMEND, ETC., CORPOR- ATION LAWS AND DISSOLVE CORPORATIONS. The legislature may at any time amend or repeal this part, or any title, chapter, article, or section thereof, and dissolve all corporations created thereunder; but such amendment or 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 liabil- ity which has been previously incurred. History: Enacted by Code Commission, Act March IG, 1901, Stats, and Amdts. 1900-1, p. 353, held unconstitutional, see his- tory, § 4 ante; re-enacted March 21^ 1905, Stats, and Amdts. 1905, p. 410 168 Tit.I,ch.VI.] FOREIGN CORPORATIONS. . §405 CHAPTER VI. FOREIGN CORPORATIONS. [This chapter is a codification, Act Api'il 3, 1S80 (Stats. 1880, p. 21), and Act March 17, 1899 (Stats, and Amdts. 1899, p. Ill), amending- Act April 1, 1872, Stats. 1871-2, p. 826. See Pierce vs. Southern Pac. Co., 120 Cal. 156, 47 Pac. Rep. 874, 52 Id. 302, 40 L. R. A. 350.] § 405. Designation of person on whom process may be served. Service on the secretary of state, valid, when. § 406. Foreign corporations, statute of limitations in favor of. Proof of corporate existence. Change of designation. § 407. Foreign railway corporations, rights of in this state. § 408. Foreign corporations to iile certified copies of articles of incorporation [in office of Secretary of State]. § 409. Foreign corporations, fees to be paid by, on filing certi- fied copies of articles of incorporation. § 410. Foreign corporation, penalty for failure to file certified copies of articles of incorporation. §405. DESIGNATION OF PERSON ON WHOM PROCESS IVIAY BE SERVED. SERVICE ON SECRE- TARY OF STATE VALID, WHEN. Every corporation other than those created by or under the laws of this state must, at the time of filing the certified copy of its articles of incorporation, file in the office of the secretary of state a designation of some person residing within the state upon whom process issued by authority of or under any law of this state may be served. A copy of such designation, duly certified by the secretary of state, is sufficient evidence of such appointment. Such process may be served on the person so designated, or, in the event that no such person is designated, then on the secretary of state, and the service is a valiJ service on such corporation. History: Added by Code Commission, Act Marcli 21, 1901, Stats, and Amdts. 1900-1, p. 353, held unconstitutional; see his- tory, § 69 ante; re-enacted March 21, 1905, Stats, and Amdts. 169 §406 GIVIL CODE. [Div.I.Pt.IV. 1905, p. 630. A codification of § 1 Act Marcli 17, 1899; see intro- ductory note to this cliapter; amended March 18, 1907. Stats, and Amdts. 1907, p. 558, Kerr's Stats, and Amdts. 1906-7, p. 410. §406. FOREIGN CORPORATION, STATUTE OF LIMITATIONS IN FAVOR OF. PROOF OF CORPOR- ATE EXISTENCE. CHANGE OF DESIGNATION. Every corporation which complies with the provisions of this chapter is thereafter entitled to the benefit of the laws of this state limiting the time for the commencement of civil actions, but no corporation not created by or under the laws of this state is entitled to the benefit thereof, nor can any such corporation maintain or defend any action or proceed- ing in any court of this state until the corporation has com- plied with the provisions of the preceding section. [Proof of foreign corporation.] In any action or proceed- ing instituted against any body styled as a corporation, but not created by nor under the laws of this state, evidence that such body has acted as a corporation, or employed methods usually employed by corporations, must be received by the court for the purpose of proving the existence of such cor- poration, the sufficiency of such evidence to be determined by the court with like effect as in other cases. [Designation for service — Revocation, etc. — New designa- tion.] Every corporation which has complied with the laws then in force, requiring it to make and file a designation of the person upon whom process against it may be served, need not make or file any further designation. Any desig- nation heretofore or hereafter made may be revoked by the filing by the corporation with the secretary of state of a writ- ing stating such revocation. Within forty days after the death or removal from the state of any person designated by the corporation, or after the revocation of the designation, the corporation must make a new designation, or be sub- ject to the provisions and penalties of this chapter. 170 Tit.I.ch.VI.] FOREIGN RAILROADS. §§407,408 History: Enacted by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 353, held unconstitutional, see his- tory, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 630; see introductory note to this cliapter. §407. FOREIGN RAILROADS, RIGHTS IN THIS STATE. Every railway or other corporation organized for the purpose of carrying freight or passengers under or by virtue of the laws of the United States, or of any state or territory thereof, may build railroads, exercise the right of eminent domain, and transact any other business which it might do if it were created and organized under or by vir- tue of the laws of this state, and has the same rights, privi- leges, and immunities, and is subject to the same laws, pen- alties, obligations, and burdens as if created or organized under and by virtue of the laws of this state. Nothing con- tained in this section shall be construed to exempt any cor- poration from any duty or liability imposed upon it by any of the provisions of this chapter. HLstory: Enacted by Code Commission, Act Marcli 16, 1901, Stats, and Amdts. 1900-1, p. 354, lield unconstitutional, see his- tory, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 631; see the introductory note to this chapter. §408. FOREIGN CORPORATION MUST FILE CER- TIFIED COPY OF ARTICLES OF INCORPORATION [IN OFFICE OF SECRETARY OF STATE]. Every cor- poration organized under the laws of another state, terri- tory, or of a foreign country, which is now doing business in this state, or is maintaining an office herein, or which shall hereafter do business in this state, or maintain an office herein, or which shall enter this state for the purpose of do- ing business herein, must file in the office of the secretary of state of the state of California a certified copy of its ar- ticles of incoiporation, or of its charter, or of the statute or statutes, or legislative, or executive, or governmental act or acts creating it, in cases where it has' been created by 171 §§409,410 CIVIL CODE. [Div.I/Pt.IV. charter, or statute, or legislative, or executive, or govern- mental act, duly certified by the secretary of state, or other officer authorized by the law of the jurisdiction under which such corporation is formed to certify such copy, and a certi- fied copy thereof, duly certified by the secretary' of state of this state, in the office of the county. clerk of the county where its principal place of business is located, and also where such corporation owns property. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 631; amended March IS, 1907, Stats, and Amdts. 1907, p. 559, Kerr's Stats, and Amdts. 1906-7, p. 411. §409. FOREIGN CORPORATIONS, FEES TO BE PAID BY, ON FILING CERTIFIED COPIES OF ARTI- CLES OF INCORPORATION. For filing and issuing a certified copy as required in section four hundred and eight of this code, corporations formed under the laws of another state, or of a territory, or of a foreign country, must pay the same fees as are paid by corporations formed under the laws of this state. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 631; see introductory note to this chapter. §410. FOREIGN CORPORATION. PENALTY FOR FAILURE TO FILE COPIES OF ARTICLES OF INCOR- PORATION. Every corporation organized under the laws of another state, or territory, or of a foreign country, which shall neglect or fail, within ninety days from the taking ef- fect of this section, to comply with the conditions of sections four hundred and eight and four hundred and nine of this code, shall be subject to a fine of not less than five hundred dollars, to be recovered in anj^ court of competent jurisdic- tion; [Proceedings to recover fine.] And it is hereby made the duty of the secretary of state, as he may be advised that corporations are doing business in contravention of sections 172 Tit.I, ch. VI. 1 FAILURE TO FILE COPIES— PENALTY. §410 four hundred and eight and four hundred and nine of this code, to report the fact to the governor, who shall instruct (1) the district attorney of the county wherein such corpor- ation has its principal place of business, or (2) the attorney general of the state, or both, as soon as practicable, to in- stitute proceedings to recover the fine provided for in this section, and the amount so recovered must be paid into the state treasury to the credit of the general fund of the state; [Corporations failing to comply may not maintain suits.] In addition to which penalty, no foreign corporation which shall fail to comply with sections four hundred and eight and four hundred and nine of this code can maintain any suit or action in any of the courts of this state, or acquire or convey any legal title to any real property within this state, until it has complied with said sections; [Corporations exempted.] Provided, that any such cor- poration which, prior to the eighth day of March, nineteen hundred and one, shall have complied with the provisions of the act entitled ''An act to amend 'An act in relation to for- eign corporations,' approved April first, eighteen hundred and seventy-two," approved March seventeenth, eighteen hundred and ninety-nine, is exempted from the provisions of this section and the two sections next preceding. History: Enagted March 21, 1905, Stats, and Amdts. 1905, p. 631; amended April 26, 1911, Stats, and Amdts. 1911, p. 1113. 173 §414 CIVIL CODE. [Div.I.Pt.IV. TITLE II. INSURANCE CORPORATIONS Chapter I. General Provisions, §§ 414-422. II. Fire and Marine Insurance Corporations, §§ 424-432. III. Mutual Life, Health, and Accident Insurance Corporations, §§ 437-452. IV. Mutual Benefit and Life Associations, §§ 452a- 453. V. Corporations to Discover Fire and Save Prop- erty and Human Life from Destruction There- by, §§453a-453c. VI. Life, Health, Accident, and Annuity or Endow- ment Insurance on the Assessment Plan, §§ 453d-453p. VII. Title Insurance Corporations, §§ 453s-453z. VIII. Mortgage Insurance, §§453a-453hh. CHAPTER I. GENERAL. PROVISIONS. 414. Subscription to capital stock opened, and how collected. 415. Purchase and conveyance of real estate. [What prop- erty may be held; what must be sold within five years.] 416. Policies, how issued and by whom signed. 417. Dividends, of what and when declared. 418. Directors liable for loss on insoirance in certain cases. 419. Certain companies to have capital stock of two hundred thousand dollars [repealed]. 420. Certain companies to have capital stock of one hundred thousand dollars [repealed]. 421. Investment of capital and accumulations. Reports to officers. 422. Report on stocks and bonds held by insurance com- panies. 174 Tit. II, ch. I.] SUBSCRIPTION TO STOCK. §§414^415 §414. SUBSCRIPTIONS TO CAPITAL STOCK OPENED, AND HOW COLLECTED. After the secretary of state issues the certificate of incorporation, as provided in article one, chapter one, title one, of this part, the di- rectors named in the articles of incorporation must proceed in the manner specified, or in their by-laws, or if none, then in such manner as they may by order adopt, to open books of subscription to the capital stock then unsubscribed, and to secure subscriptions to the full amount of the fixed capital; to levy assessments and instalments thereon, and to collect the same, as in chapter two of title one provided. HLstory: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 354, held unconstitutional, see liistory, § 4 ante. §415. PURCHASE AND CONVEYANCE OF REAL ESTATE. [WHAT PROPERTY MAY BE HELD; WHAT MUST BE SOLD WITHIN FIVE YEARS.] No insurance corporation may purchase, hold or convey real estate, except as hereinafter set forth, to wit: 1. The building in which it has its principal office and the land upon which it stands. 2. Also, such as may be requisite for its accommodation in the convenient transaction of its business. 3. Also, such as may be conveyed to it, or to any person for it, by way of mortgage, or in trust or otherwise, to se- cure or provide for the payment of loans previously con- tracted or for moneys due. 4. Also such as may be purchased at sales upon deeds of trust, or judgments obtained or made for such loans or debts. 5. Also sucli as may be conveyed to it in satisfaction of debts previously contracted in the course of its dealings. All such real estate, mentioned in subdivisions three, four and five, so acquired, which is not requisite for the accomo- 175 §§416-418 CIVIL CODE. [Div.I,Pt.IV. dation of such corporation in the transaction of its busi- ness, must be sold and disposed of within five years after such corporation acquired title to the same. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16. 1901, Stats, and Amdts. 1900-1, p. 354, held unconstitutional, see history, § 4 ante; amendment re-enacted Feb. 24, 1905, Stats, and Amdts. 1905, p. 21. §416. POLICIES, HOW ISSUED AND BY WHOM SIGNED. All policies made by insurance corporations must be subscribed by the president or vice president, or in case of the death, absence, or disability of those officers, by any two of the directors, and countersigned by the secretary oi the corporation. All such policies are as binding and ob- ligatory upon the corporation as if executed over the cor- porate seal. HLstory: Enacted Marcli 21, 1872. §417. DIVIDENDS, OF WHAT AND WHEN DE- CLARED. The directors of every insurahce corporation, at such times as their by-laws provide, must make, declare, and pay to the stockholders dividends of so much of the net profits of the corporate business and interest on capital invested as to them appears advisable; but the moneys re- ceived and notes taken for premium on risks which are un- determined and outstanding at the time of making the divi- dend must not be treated as profits, nor divided, except as provided in chapter two of this title. History: Enacted March 21, 1872, founded upon § 21 Act April 2, 1866, Stats. 1865-6, p. 748; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 355, held unconstitutional, see history, § 4 ante. §418. DIRECTORS LIABLE FOR LOSS ON INSUR- ANCE IN CERTAIN CASES. If any insurance corpora- tion is under liabilities for losses to an amount equal to its 176 Tit. II, ch. I.] INVESTMENTS, ACCUMULATIONS. §§419-421 capital stock, and the president or directors, after knowing the same, make any new or further insurance, the estates of all who make such insurance, or assent thereto, are sev- erally and jointly liable for the amount of any loss which takes place under such insurance. History: Enacted March 21. 1S72, founded upon Act April 2, 1866, Stats. 1865-6, p. 747; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 355, held unconsti- tutional, see history, § 4 ante. §419. CERTAIN INSURANCE COMPANIES TO HAVE A CAPITAL STOCK OF TWO HUNDRED THOUSAND DOLLARS [repealed]. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 269; April 1, 1878, Code Amdts. 1877-8, p. 80; amended by Code Commission, Act March 16, 1901. Stats, and Amdts. 1900-1, p. 355, held unconstitutional, see history, § 69 ante; repealed March 8, 1907, Stats, and Amdts. 1907, p. 141, Kerr's Stats, and Amdts. 1906-7, p. 411. In effect immediately. Incorporated in Article XVI. of Ch. Ill, Part III. Title I, of the Political Code. See Pol. C. | 594. §420. CERTAIN INSURANCE COMPANIES TO HAVE A CAPITAL STOCK OF ONE HUNDRED THOUSAND DOLLARS [repealed]. History: Enacted April 1, 1878, Code Amdts. 1877-8, p. SO; re- pealed March 8, 1907, Stats, and Amdts. 1907, p. 141, Kerr's Stats, and Amdts. 1906-7, p. 411. In effect immediately. Incorporated in Pol. C. as noted under last section. §421. INVESTMENT OF CAPITAL AND ACCUMU- LATIONS OF CERTAIN CORPORATIONS. REPORTS OF OFFICERS. Corporations organized under the laws of this state for the transaction of any kind of insurance busi- ness authorized by such laws may invest their capital, sur- plus and accumulations in the purchase of, or loans upon any of the securities specified in subdivisions one to five in- clusive of this section. 177 §421 CIVIL CODE. [Div.I,Pt.IV. 1. [United States bonds.] Bonds or interest-bearing notes or obligations of the United States or those for which the faith and credit of the United States are pledged for the payment of principal and interest. 2. Bonds of this state or those for which the faith and credit of the State of California are pledged for the pay- ment of principal and interest and bonds of any other state in the United States that has not, within five years next preceding such investment by such insurance company, de- faulted in payment of any part of either principal or inter- est due upon any legally authorized bond issue. 3. [County, etc., bonds.] Bonds or interest-bearing notes or obligations issued under authority of law by any county, municipality or school district in this state or in any other state or territory of the United States; provided, that said county, municipality or school district or the state or terri- tory in which it is located has not, within two years next preceding such investment by such insurance company, de- faulted in payment of any part of either principal or interest due upon any legally authorized bond issue. 4. [Road division, etc., bonds.] Bonds of any permanent road division in this state, and, any irrigation district bonds which the law may now or hereafter authorize as legal in- vestments for insurance companies; provided, that the to- tal amount of bonds issued by any such irrigation district does not exceed sixty per centum of the aggregate market value of the lands within such district, and of the water, water rights, canals, reservoirs, reservoir sites and irriga- tion works owned or to be acquired or constructed with the proceeds of any such bonds, by such district, such facts in reference to bonds of irrigation districts to be determined by a cominission now or hereafter authorized by law to ascertain and report upon such facts. 5. [First mortgage notes.] (a) Xotes or bonds secured by first mortgage or deed of trust or other first lien upon real estate, improved or unimproved; provided, that the prin- 178 Tit. II, ch. I.] INVESTMENTS, ACCUMULATIONS. §421 cipal so loaned or the entire note or bond issue so secured shall not exceed sixty per centum of the market value of such real estate, or of such real estate with improvements taken as security at the date of investment; provided, also, in case said loan is made, or said note or bond issue created for a building loan on real estate, that at no time shall the principal so loaned or the entire outstanding note or bond issue exceed sixty per centum of the market value of the real estate and the actual cost of the improvements thereon taken as security; or [Notes guaranteed by policy of mortgage insurance.] (b) Notes or bonds secured by mortgage or deed of trust, payment of which is guaranteed by a policy of mortgage insurance, and mortgage participation certificates, issued by a mortgage insurance company in accordance with the pro- visions of chapter VIII of title II of part IV of division first of the Civil Code; provided, that no insurance corporation shall make any investment in any of the securities specified in subdivisions one, two, three, four and five of this section in an amount exceeding the market value of such security, at the date of such investment. 6. [Investment of balance of capital.] Corporations or- ganized for and engaged in the business of fire, life or marine insurance, may, after the investment of two hundred thousand dollars, and corporations organized for and engaged in the business of transacting any other kind of insurance authorized by law, except mortgage insurance, may also, after the investment of one hundred thousand dollars in any of the securities specified in subdivisions one, two, three, four and five of this section, invest the balance of their cap- ital, surplus and any accumulations in the purchase of or loans upon the stock of any corporation (except a mining- corporation) organized and carrying on business under the laws' of this state, or the laws of the United States, which stocks have, at the date of such investment, a market value of not less than their paid-in value, or in the purchase of, 179 §421 CIVIL CODE. [Div.I.Pt.IV. or loans upon, interest-bearing bonds issued by a corpora- tion organized under the laws of any state or territory in the United States, which corporation has not, within five years next preceding the date of such investment, defaulted in payment of any part of either principal or interest of any bond of the issue of which the bonds which comprise such investment form a part, and which stocks or bonds must^ in each case, be rated as first class securities; provided, that any investment made, under the provisions of this subdivision of this section shall be approved by vote of two-thirds of all the directors of the investing corporation. Such ap- proval shall be entered upon the records or minutes of such corporation. Such entry must show the fact of making such investment, the amount thereof, the name of each director voting to approve the same, the amount, character and value of the security purchased -or taken as collateral, and if the investment be a loan, the name of the -borrower, the rate of interest thereon, and the date when the loan will become due or payable. It shall be the duty of the secre- tary of any such investing corporation to report in writing during the months of January and July of each year to the insurance commissioner, the data above set forth respecting each such investment, and the insurance commissioner may, if any such investinent is not approved by him, require the corporation to sell or dispose of the same. 7. [Policy loans.] Life insurance companies may also loan upon their ov\'n policies; provided, that the amount so loaned upon each policy shall not exceed the reserve against said policy at the time said loan is made; provided, further, that no policy loans whatever shall ever be used as security which may be deposited with the insurance commissioner under section six hundred thirty-four of the Political Code; and provided, further, that whenever any such loan in any amount is made on a policy registered with the insurance commis- sioner under said section six hundred thirty-four of the Po- litical Code, such registration shall be forthwith canceled. 180 Tit. II, ch. I.] REPORT ON STOCK AND BONDS. §422 History: Added by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 355, held unconstitutional, see his- tory § 4 C. C; re-enacted March 3, 1905, Stats, and Amdts. 1905, p. 34, also re-enacted March 21, 1905 with slight variations which latter enactment is given in Kerr's Cyc. Codes, Pocket Codes of 1909 and Cumulative Supplement 1906-1913 as § 421[a]; repeal enacted March 18, 1907, Stats, and Amdts. 1907, p. 597, Kerr's Stats, and Amdts. 1906-7^ p. 411; the re-enactment ap- proved March 21, 1905, and retained as number § 421[a] as above indicated "was amended by Act of June 6, 1913, and num- bered §421, Stats, and Amdts. 1913, p. 488; June 12, 1915, Stats. and Amdts. 1915, p. 1532. In effect August 11, 1915. §422. REPORT ON STOCKS AND BONDS HELD BY INSURANCE COMPANIES. If any domestic insurance corporation shall have invested any of its funds in or loaned any of its funds upon the stock, bonds or other evidences of debt of other corporations or of any nation, state, county, city, village, school district, municipality, or other civil di- vision of any state, pursuant to the laws of this state, and the insurance commission shall have reason to believe that such stock, bonds or other evidences of debt are not amply secured or are not yielding an income, he may direct it to report to him under oath the amount thereof, the security therefor and its market value. No stock and no bond or other evidence of debt if in default as to principal or interest, or if not amply secured, shall be valued as an asset of the corporation above its market value. [How valued.] All bonds or other evidences of debt held by anj' insurance corporation authorized to do business in this state, if amply secured and if not in default as to prin- cipal or interest, may in the discretion of the insurance com- missioner, be valued as follows: If purchased at par at the par value; if purchased above or below par, on the basis of the purchase price adjusted so as to bring the value to par at maturity and so as to yield the effective rate of inter- est at which the purchase was made; provided, that the pur- chase price shall in no case be taken at a higher figure than 181 §422 CIVIL CODE. [Div.I,Pt.IV. the actual market value at the time of purchase; and pro- vided, further, that the insurance commissioner shall have full discretion in determining the method of calculating val- ues according to the foregoing rule, and the values found by him in accordance with such method shall be final and bind- ing; provided, also, that any such corporation may return such bonds or other evidence of debt at their market value or their book value, but in no event at an aggregate value exceeding the aggregate of the values calculated according to the foregoing rule. History: Enacted June 6, 1913, Stats and Amdts. 1913, p. 464. In eflEect August 10, 1913. 182 Tit. II, ch. II.] FIRE AND MARINE COMPANIES. §§424,425 CHAPTER II. [The title and section lieadings of cliapter II of title II, of part IV, of division first, of the Civil Code are hereby changed to read as follows (See Stats, and Amdts. 1913, p. 487):] 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. Repealed.] § 428. Limit of one risk. § 429. Amounts to be reserved before making dividends. § 430. Reservations by companies with less than two hundred thousand dollars capital. [§431. Aniount to be reserved by life insurance companies. Repealed.] § 432. Accumulate surplus fund [repealed]. §424. PAYMENT OF SUBSCRIPTIONS. CAPITAL TO BE ALL PAID IN TWELVE MONTHS. The entire capital stock of every fire or marine insurance corporation must be paid up in cash w^ithin twelve months from the filing of the articles of incorporation, and no policy of insurance must be issued or risk taken until twenty-five per cent of the whole capital stock is paid up. Hi.story: Enacted March 21, 1872. §425. CERTIFICATE OF CAPITAL STOCK PAID UP TO BE FILED, AND WHEN. The president and a majority of the directors must, within thirty days after the payment of the twenty-five per cent of the capital stock, and also within thirty days after the payment of the last instalment or assessment of the capital stock limited and fixed, prepare, subscribe, and swear to a certificate setting 183 §§426-428 CIVIL CODE. [Div.I,Pt.IV. 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 clerk of the county where the principal place of business of the corporation is located, and a duplicate thereof, similarly executed, with the insurance commissioner. History: Enacted March 21, 1872. §426. PROPERTY WHICH MAY BE INSURED. Every corporation formed for fire or marine insurance, or both, may make insurance on all insurable interests within the scope of its articles of incorporation, and may cause itself to be reinsured. History: Enacted March 21, 1S72. §427. FUNDS MAY BE INVESTED, HOW [repealed]. HLstory: Enacted March 21, 1ST2; amended March 30, 1874, Code Amdts. 1873-4, p. 210; April 1, 1878, Code Amdts. 1877-8, p. 81; March 5, 1887, Stats, and Amdts. 1887, p. 22; March 6, 1899, Stats, and Amds. 1899, pp. 66-68 (became la'w, under constitu- tional provision, without governor's approval); repealed March 3, 1905, Stats, and Amdts. 190.5, p. 34; re-repealed March 21, 1905, Stats, and Amdts. 1905, p. 628. §428. LIMIT OF ONE RISK. Fire and marine insur- ance corporations must never take, on any one risk, whether it is a marine insurance or an insurance against fire, a sum exceeding one tenth part of their capital actually paid m, and intact at the time of taking such risk, without at once ■reinsuring the excess above one tenth. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 210; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 357, held unconsti- tutional, see history, §4 ante; re-amended March 21, 1905. p. 570. 184 Tit. II, ch. 11. J DIVIDENDS— RESERVE. §§429,430 §429. AMOUNTS TO BE RESERVED BEFORE MAKING DIVIDENDS. No corporation formed subse- quent to April first, eighteen hundred and seventy-eight, un- der the laws of this state, and transacting fire, marine or inland navigation insurance business, must make any divi- dends except from profits remaining on hand after retaining unimpaired: 1. The entire subscribed capital stock. 2. All the premiums received or receiv-able 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 expenses and taxes. HLstory: Enacted March 12, 1872; amended April 1, 1878, Code Amdts. 1877-8, p. 81; March 5, 1887. Stats, and Amdts. 1S87, p. 23; June 6, 191.3, Stats, and Amdts. 1913, p. 489. In effect August 10, 1913. §430. RESERVATIONS BY COMPANIES WITH LESS THAN TWO HUNDRED THOUSAND DOLLARS CAPITAL. No fire or marine insurance corporation, with a subscribed capital of less than two hundred thousand dol- lars, must declare an}' dividends, except from profits re- maining on hand after reserving: 1. A sum necessary to form, with the subscribed capital stock, the aggregate sum of two hundred thousand dollars; 2. All the premiums received or receivable on outstanding marine or inland risks, except marine time risks; 3. A fund equal to one-half the amount of all premiums on fire risks and marine time risks not terminated at the time of making such dividend; 4. A sum sufficient to pay all losses reported or in course of settlement, and all liabilities for expenses and taxes. History: Enacted March 21, 1872. 185 §§431,432 CIVIL CODE. [Div.I.Pt.IV. §431. AMOUNT TO BE RESERVED BY LIFE IN- SURANCE COMPANIES [repealed]. History: Enacted April 1, ISTS, Code Amdts. 1877-8, p. 81; repealed by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 357. held unconstitutional; see history, § 4 ante; re-repealed March 21, 1905, Stats, and Amdts. 1905, p. 57^1. §432. ACCUMULATE SURPLUS FUND [repealed]. History: Enacted March 5, 1887, Stats, and Amdts. 1887, p. 23; repealed June 6, 1913, Stats, and Amdts. 1913, p. 489. In effect August 10, 1913. 186 Tit. II, ch. III.] MUTUAL, LIFE, ETC.— CAPITAL. §437 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 deficiency in fixed capital. § 440. Declaration of fixed capital to be filed. § 441. Guarantee notes and interest. [Commission and interest allowed.] § 442. Insured entitled to vote, when. § 443. Number of directors, how altered. § 444. Investment of capital stock [repealed]. § 445. Limitation to the holding of stock, etc., may be pro- vided for in by-laws. § 446. Premiums, how payable. § 447. Insurance companies to furnish data to insurance com- missioner. Employment of actuary [repealed]. § 448. No stamps required on accident insurance [repealed]. § 449. [Valuation of policies.] Retaliatory clause [repealed]. § 450. Policies issued within state. [Provisions of.] § 451. Certain orders not insurance companies [repealed]. § 452. Corporations, life insurance. Dividends, how made. §437. CAPITAL STOCK. GUARANTEE FUND. Every corporation formed for the purpose of mutual insur- ance on the lives or health of persons, or against accidents to persons for life or any fixed period of time, or to pur- chase and sell annuities, must have a capital stock of not less than two hundred thousand dollars. It must not make any insurance upon any risk or transact any other business as a corporation until its capital stock is fully paid up in cash, nor until it has also obtained a fund, to be known as a "guarantee fund," of not less than two hundred and fifty thousand" dollars, as is hereinafter provided. If more than the requisite amount is subscribed, the stock must be dis- tributed pro rata among the subscribers. 187 §438 CIVIL CODE. [Div.I.Pt.IV. Any subscription may be rejected by the board of di- rectors or the committee thereof, either as to the whole or any part thereof, and must be, so far as rejected, without effect, nothing in this section shall be deemed to contravene any of the provisions of section four hundred and fifty-one. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 357, held unconstitutional, see history, § 4 ante; re-amended March IS, 1905, Stats, and Amdts. 1905, pp. 183-1S4. § 438. OF WHAT GUARANTEE FUND SHALL CON- SIST. The guarantee fund mentioned in the preceding sec- tion must consist of the promissory notes of solvent par- ties, approved by the board of directors and by each other, paj'able to the corporation 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 requirements as the board of directors prescribe; but tlie amount of the notes given by any one person must not exceed in the whole the sum of five thousand dollars, exclusive of interest. Such notes must be payable absolutely and at the option of the corporation; they must be negotiable, and may be indorsed and transferred, or converted into cash, or otherwise dealt with by the corporation, at its discretion, without reference to any contingency of losses dr expenses. Such notes, or the proceeds thereof, must remain with the corporation as a fund for the better security of its dealers, [persons dealing with it] and constitute the assets of the corporation, liable for all its ^ebts, obligations, and indebtedness next alter its assets from* premiums and other sources, exclusive of capital stock, until the net earnings, over and above its expenses, losses, and liabilifies, shall have accumulated in cash, or se- curities in which the net earnings have been invested, to a sum which, with the capital stock, is equal to the aggregate of the original amounts of the guarantee fund and of the capital stock. History: Enacted March 21, 1872, founded upon § 9, Act April 2, 1866, Stats. 1865-66, p. 755. 188 Tit. II, ch. III.] DEFICIENCY IN CAPITAL. §§439,440 §439. WHAT CONSTITUTES, AND DEFICIENCY IN FIXED CAPITAL. 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 deal- ing with it, or to be expended in any manner otherwise than [as] may be required in payment of the corporation's debts and actual expenses, until the business of the corporation is closed, its debts paid, and its outstanding policies and obli- gations of every kind canceled or provided for; and if from any cause a deficiency at any time occurs in such fixed capi- tal, no further division of profits must take place until such deficiency has been made up. History: Enacted March 21, 1872. § 440. DECLARATION OF FIXED CAPITAL TO BE FILED. Whenever the fixed capital of the corporation is obtained as hereinbefore provided, the president of the cor- poration and its actuary, or its secretary, if there is no ac- tuary, must make a declaration in writing, sworn to before some notary public, of the amount of such fixed capital, and of the particular kinds of property composing the same, with the nature and amount of each kind, which must be filed with the original articles of incorporation, and a copy, cer- tified 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 corporation is situated. Upon the filing of such declaration the guarantee fund is discharged of its obligations, and all notes of the fund remaining in the control of the corporation, and not afifected by any lien thereon, or claim of that nature, must be surrendered by it to the makers thereof, respectively, or other parties entitled to receive the same. History: Enacted March 21, 1872. 189 §§441-443 CIVIL CODE. [Div.I,Pt.IV. §441. GUARANTEE NOTES AND INTEREST. [COMMISSION AND INTEREST ALLOWED.] Until the guarantee fund is discharged from its obligations, as pro- vided in the preceding section, no note must be withdrawn from the fund, unless another note of equal solvency is sub- stituted therefor, with the approval of the board of direc- tors. The corporation must allow a commission, not ex- ceeding 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 interest is different from this amount, in which case the rate payable may, from time to time, at intervals of nqt less than one year, be in- creased or reduced by the board of directors, so as to con- form to the current rate. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 210. §442. INSURED TO BE ENTITLED TO VOTE, WHEN. After the filing of the declaration of the fixed capital, as in this article provided, the holders of policies of life insurance for the term of life, on which the premiums are not in default, may vote at the election of directors, and have one vote for each one thousand dollars insured by their policies, respectively. History: Enacted March 21, 1872. §443. NUMBER OF DIRECTORS, HOW ALTERED. The number of directors specified in the articles of incor- poration may be altered from time to time during the ex- istence of the corporation by resolution, at the annual meet- ing of a majority of those entitled to vote at the election of directors, but the number must never be reduced below five. History: Enacted March 21, 1872. 190 Tit. 1 1, ch. 1 1 1.] LIMITATION ON HOLDING. §§ 444_447 §444. INVESTMENT OF CAPITAL STOCK [re- pealed]. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 211; repealed by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 357, held unconsti- tutional, see history, § 69 ante; repealed March 22, 1907. Stats, and Amdts. 1907, p. 889, Kerr's Stats, and Amdts. 1906-7, p. 413. lu effect immediately. §445. LIMITATION TO THE HOLDING OF STOCK, ETC., MAY BE PROVIDED FOR IN BY-LAWS. The corporation may, by its by-laws, limit the number of shares which may be held by any one person, and make such other provisions for the protection of the stockholders and the better securitj- of those dealing with it as to a majority of the stockholders may seem proper, not inconsistent with the provisions of this title or part. History: Enacted March 21, 1872. §446. PREMIUMS, HOW PAYABLE. All premiums must be payable wholly in cash, or one half or a greater proportion in cash, and the remainder in promissory notes bearing interest, as may be provided for by the by-laws. Agreements and policies of insurance made by the corpora- tion 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. History: Enacted March 21, 1872. §447. INSURANCE COMPANIES TO FURNISH DATA TO INSURANCE COMMISSIONER. EMPLOY- MENT OF ACTUARY [repealed]. History: Enacted March 21, 1S72; amended March 30, 1874, Code Amdts. 1873-4, p. 211; Feb. 25, 1889, Stats, and Amdts. 1889, p. 36; amended by Code Commission, Act Marcli 16, 1901, Stats, and Amdts. 1900-1, p. 357, lield unconstitutional, see history, 191 §§448-450 CIVIL CODE. [Div.I.Pt.IV. § 69 ante; repealed March 18, 1907, Stats, and Amdts. 1907, p. 141, Kerr's Stats, and Amdts. 1906-7, p. 413. lu effect Immedi- ately. Incorporated In Political Code as noted under § 419. See Pol. C. § 625. , §448. NO STAMPS REQUIRED ON ACCIDENT IN- SURANCE CONTRACT [repealed]. History: Enacted March 21, 1872; repealed by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 358, held unconstitutional; see history, § 69 ante; re-repealed March 21, 1905, Stats, and Amdts. 1905, p. 571; re-repealed March 8, 1907, Stats, and Amdts. 1907, p. 141, Kerr's Stats, and Amdts. 1906-7, p. 413. In effect immediately. §449. [VALUATION OF POLICIES.] RETALIA- TORY CLAUSE [repealed]. History: Enacted March 30, 1874, Code Amdts. 1873-4, p. 271; amended by Code Commission, Act March 16, 1901, Stafs. and Amdts. 1900-1, p. 358, held unconstitutional, see history, § 69 ante; repealed March 8, 1907, Stats, and Amdts. 1907, p. 141, Kerr's Stats, and Amdts. 1906-7, p. 413. In effect immediately. Incorporated in Political Code as noted under § 419 ante. See Pol. C. § 618. §450. POLICIES ISSUED WITHIN THE STATE. [PROVISIONS OF.] Every contract or policy of life in- surance hereinafter made by any person or corporation, with and upon the life of a resident of this state, and delivered within this state, shall provide, in event of default of any* premium payment after three full annual premiums shall have been paid on such policy, that without any action on the part of the insured, the net value of such policy based upon the reserve basis used in computing the premiums and val- ues thereunder (the policy to specify the mortality table and rate of interest so adopted) which net value shall be at least equal to its entire net reserve at the date of default, includ- ing that of dividend additions, if any, based upon a standard not low^r than the American experience tables of mortality 192 Tit.II,ch.III.] PAID-UP, ETC., POLICIES. §450 with interest at three and one-half per cent yearly, less a surrender charge of not more than two and one-half per cent of the face amount of the policy and of any existing dividend additions thereto and less any indebtedness to the company on or secured by the policy, shall be applied as a single premium to the purchase of one of the following stipu- lated forms of insurance: [Paid-up non -participating policies.] 1. Paid-up non-par- ticipating term insurance in the amount of the face of the policy, plus dividend additions, if, any, for such a period as the net value outlined above will purchase at the net single premium, at the attained age of the insured at the time of the lapse, based upon the reserve basis described in the policy; provided, however, that under endowment contracts the term shall not extend beyond the endowment period named in the original contract, and the excess value, if any, shall be ap- plied as a net single premium to purchase in the same man- ner paid-up pure endowment insurance, payable at the end of the endowment period named in the contract if the in- sured be then living, or, 2. Paid-up non-participating term insurance in the amount of the face of the policy, plus dividend additions, if any, and less any outstanding indebtedness, for such a period as the net value outlined above will purchase at the net single pre- mium, at the attained age of the insured, based upon the re- serve basis described in the policy; provided, however, that under endowment contracts the term shall not extend be- yond the endowment period named in the original contract, and the excess value, if any, shall be applied as a net single premium to purchase in the same manner paid-up pure en- dowment insurance, payable at the end of the endowment period named in the contract if the insured be then living, or, 3. Paid-up non-participating insurance payable at the time and on the conditions named in the policy for such an amount as the net value outlined above will purchase at the net sin- gle premium, at the attained age of the insured, based upon the reserve basis described in the policy. ^ 193 §451 CIVIL CODE. [Div.I.Pt.IV. [Surrender of lapsed policy.] Provided, however, that the policy may be surrendered to the company, at its home of- fice, upon due application by the legal owner thereof, within one month after date of premium default, for a specified cash value which shall be at least equal to the sum which would be otherwise available for the purchase of the automatic form of insurance provided therein; and provided further that the company may defer payment of such cash value for not more than six months after application therefor is made. No agreement between the company and the policyholder or applicant for insurance contrary to the foregoing shall be held to waive any of the provisions provided above. Any life insurance policy issued upon the life of a resi- dent of this state, and delivered within this state, which does not contain an automatic non-forfeiture value in conformity vvith the foregoing shall be construed as granting non-par- ticipating term insurance, as provided in paragraph first of this section, and such a benefit shall be read into the con- tract. The provisions of this section shall not apply to annu- ities, industrial policies or to term contracts issued for pe- riods of twenty years or less. [Repealing clause.] Sec. 2. All acts and parts of acts in conflict with this act are hereby repealed. History: Enacted March 30, 1874, Code Amdts. 1S73-4, p. 271; amended April 1, 1878, Code Amdts. 1877-8, p. 82; April 26, 1880, Code Amdts. 1880 (C. C. pt.), p. 91; by Code Commission, Act Marcli 16, 1901, Stats, and Amdts. 1900-1, p. 358, iield un- constitutional; see Kerr's Cyc. C. C. § 4; May 1, 1911. Stats, and Amdts. 1911, p. 1272. §451. CERTAIN ORDERS NOT INSURANCE COM- PANIES [repealed]. History: Enacted March 30. 1874, Code Amdts. 1873-4, p. 271; amended April 7, 1878, Code Amdts. 1877-8, p. 82, repealed April 194 Tit.II.ch.III.] DIVIDENDS— HOW MADE. §452 26, 18S0, Code Amdts. 1880 (Pol. Code pt.), p. 92; re-enacted March 23, 1885, Stats, and Amdts. 1885, p. 221; repealed March 8, 1907, Stats, and Amdts. 1907. p. 141. Kerr's Stats, and Amdts. 1906-7, p. 413. In effect immediately. §452. CORPORATIONS, LIFE INSURANCE. DIVI- DENDS, HOW MADE. No corporation formed under the laws of this state, and transacting life insurance business, must make any dividends, except from profits remaining on hand after retaining unimpaired: 1. The entire capital stock; 2. A sum sufficient to pay all losses reported or in course of settlement, and all liabilities for expenses and taxes; 3. A sum sufficient to reinsure all outstanding policies, as ascertained and determined upon the basis of the American experience table of mortality, and interest at the rate of four and one half per cent per annum. Histor.v: New section added by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 359, held unconstitutional, see history, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 571. Original section 452, regulating determination of net valua- tion of policy at expiration of term", was enacted April 1, 1878 (Code Amdts. 1877-8, p. 83), and repealed April 26, 1880, Code Amdts. ISSO (Pol Code pt.), p. 92. 195 §§ 452a, 453 civil code. [Div.I,Pt.IV. [This chapter was added by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 360, held unconstitutional, see history, § 1 ante; re-enactsd March 20, 1905.] CHAPTER IV. MUTUAL BENEFIT AND LIFE ASSOCIATIONS. § 452a. Formation of the association. § 453. Levying of assessments. By-laws which may be made. §452a. FORMATION OF THE BENEFIT ASSOCIA- TION. Associations of any number of persons ma3' be formed for the purpose of paying the nominee of any mem- ber a sum, upon the death of the member, not exceeding three dollars for each member of the association, but not exceeding, in any case, the sum of three thousand dollars. Such association maj' be formed by filing articles of incor- poration in the office of the clerk of the county in which the principal place of business is situated and a certified copy of such articles of incorporation, duly certified by the county clerk, in the oifice of the secretary of state. Such articles must stale the name of the corporation, its general purposes, its principal place of business, its term of existence, not ex- ceeding fifty years and the names and residences of the di- rectors selected or appointed to serve for the first year. The articles of incorporation must be signed by not less than twenty-five members of such association and must be ac- knowledged by them as required by section two hundred and ninety-two. HLstory: Enacted March 20, 1905, Stats, and Amdts. 1905, p. 410; amended March 28, 1913, Stats, and Amdts. 1913, p. 12. Ill effei't August 10, 1913. §453. LEVYING OF ASSESSMENTS. BY-LAWS WHICH MAY BE MADE. Each association provided for 196 Tit. II, ch. IV.] MUTUAL BENEFIT — ASSESSMENTS. §453 in this chapter may, on the death of a member, levy an as- •sessment on the surviving members of not exceeding three dollars for each member, and collect and pay the same to the nominee of such decedent, and may also provide for the payment of such annual payments by members as may be deemed just, but no member must be subject to any annual assessment in excess of that established when he joined the association. The association may make such by-laws not inconsistent with the laws of the state as may be necessary for its government and the transaction of its business; may, by its name, sue and be sued; [Loaning funds and purchasing real estate.] Loan such funds as it may have on hand; and own sufficient real estate for its business purposes and such as it may be necessary to purchase on foreclosure of its mortgages. History: Enacted March 20, 1905, Stats, and Amdts. 1905, pp. 410-411. 197 §453a CIVIL CODE. [Div.I,Pt.IV. [This chapter was added at recommendation of Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, pp. 360-362, lield unconstitutional, see history, § 4 ante; re-enacted March 21, 1905. A cjodification of Act April 1, 1876, Stats. 1875-6, pp. 689-690, as amended by Act March 29, 1897, Stats, and Amdts. 1S97, pp. 223-225.] CHAPTER V. CORPORATIONS TO DISCOVER FIRE AND SAVE PROPERTY AND HUMAN LIFE FROM DESTRUCTION THEREBY. § 453a. Powers of the corporation. [Underwriters.] § 453b. Right of way of corporation and its officers when run- ning to fires. I 453c. Yearly meeting of corporation, notice to be given there- of, and proceedings which may be authorized thereat. [Who may vote.] §453a. POWERS OF THE CORPORATION. [UN- DERWRITERS.] Any corporation of underwriters hereto- fore organized and now existing, or which may be hereafter organized under the laws of this state, for the purpose of discovering and preventing fires and of saving property and human life from conflagration, and doing business within any inunicipal corporation of this state, has power, at its own proper cost and expense, to maintain a corps of men, with proper officers, equipped with the necessary machinery and apparatus therefor, whose duty it is, so far as practicable, to discover and prevent fires and save property and human life from conflagration; and for the eflFective discharge of such duties, autliority is hereby granted such corps to enter any building on fire, or in which property' is on fire, or which such corps or any officer thereof deems to be immediately exposed to any existing fire, or in danger of taking fire from a burning building, and to remove or otherwise save and 198 Tit.TI.ch.V.l niGHT OF WAT TO FIRES. § 453b protect from conflagration or damage by water any prop- erty, during and immediately after such fire. [Not to interfere with fire departments.] Nothing in this chapter must be so construed as in any degree to lessen, impair, or interfere with the powers, privileges, duties, or authority of the regular fire department of such municipality; nor can any act of such corps justify any owner of any building or property in abandoning such building or prop- erty. History: Enacted March 21, 1905, Stats, and Amdts. 1905, pp. 571-572; see introductory note to this chapter. 453b. RIGHT OF WAY OF CORPORATION AND ITS OFFICERS WHEN RUNNING TO FIRES. Such cor- poration, with its officers and corps, when running to a fire with its horses, vehicles, and salvage apparatus, has the same right of way as is or may be bestowed by any ordinance of the municipality or law of this state upon the regular fire department of the municipality wherein such corporation is acting; but the rights of such fire department must always be paramount to the rights of such corporation. [Certain laws and ordinances governing fire departments to govern.] All ordinances now existing or which may here- after be passed by the municipal authorities of any city and county, or of any incorporated city or town wherein such a corporation may carry on business, and all laws of this state applicable to such city and county, or city or town, for the conviction or punishment of any person or persons wilfully or carelessly obstructing the progress of the apparatus of the fire department of such city and county, or city or town, while going to a fire, or of any person or persons wilfully or carelessly injuring any animal or property of said fire department, are equally applicable to any person or -persons wilfully or carelessly obstructing the progress of the ap- paratus of such corporation while going to a fire, and to any 199- §453c CIVIL CODE. [Div.I,Pt.IV. person or persons who wilfully or carelessly injures any animal or property of such corporation; and said laws and ordinances, and their penalties, may be enforced in the same courts and in the same manner, and with equal force and ef- fect, as in the case of the fire department. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 572; see introductory note to this chapter. §453c. YEARLY MEETINGS OF CORPORATION, NOTICE THEREOF, PROCEEDINGS WHICH MAY BE AUTHORIZED THEREAT. [WHO MAY VOTE]. In the rfionth of July, in every year, there must be held a meet- ing of all corporations created for the purposes speciiied in this chapter; of which ten days' previous notice must be in- serted in at least one daily newspaper published in the mu- nicipality where said corporation is organized or established, at which meeting each insurance company, corporation, as- sociation, underwriter, agent, person, or persons doing a fire insurance business in said municipality, whether members of said corporation or not, shall have a right to be represented, and shall be entitled to one vote. [Power of majority present — Fixing expenses.] A ma- jority of the whole number so represented has power to de- cide upon the question of sustaining the fire patrol organized by corporations heretofore created, or that may be here- after created, and fixing the maximum amount of expenses which may be incurred therefor during the fiscal year next to ensue, which amount must in no case exceed two per centum of the aggregate premiums returned as received, as provided in this section, and the whole of such amount, or so much thereof as may be necessary, may be assessed upon all insurance companies, corporations, associations, under- writers, agents, person, or persons who assume risks and ac- cept premiums for fire insurance in said municipality, as here- inbefore mentioned, in proportion to the several amounts of 200 Tit.II.ch.V.] PAYMENT OF EMPLOYEES. § 453c premiums returned, as received by each, as hereinafter pro- vided, and [Assessments, how collected.] Such assessment is collect- able by and in the name of said corporation, in any court of law in the state of California having jurisdiction, in such manner and at such time or times as said corporation may determine. [Payment of employees, etc., how provided for.] In order to provide for the payment of persons employed by said cor- poration, and to maintain suitable rooms, and apparatus for saving life and property contemplated, said corporation is empowered to require a statement to be furnished, semi- annually, by all insurance companies, corporations, associa- tions, underwriters, agents, or persons, of the aggregate amount of premiums received for insuring property in the municipality where said corporation is organized or estab- lished, for and during the six months next preceding the first day of July and the first day of January of each year, which statement must be sworn to by the president or sec- retary of the corporation or association, or by the agent or person so acting or affecting such insurance in said munici- pality, and must be handed to the secretary of said corpora- tion heretofore created or hereafter to be created under the provisions of this chapter within ten days after the first day of July and the first day of January of each year. Said secre- tary must, within the ten days aforesaid, by written or print- ed demand signed by him, require from every insurance com- pany, corporation, association, underwriter, agent, or person engaged in the business of fire insurance in the municipality where said corporation is organized or established, the state- ment hereinbefore provided for. Such demand may be de- livered personally at the office of such insurance company, corporation, association, underwriter, agent, or person with- 201 §453c CIVIL CODE. [Div.I,Pt.IV. in said municipality, and every officer of such insurance com- pany, corporation, association, and every such underwriter, agent, or person, who, for fifteen days after said demand, neg- lects to render the statement herein provided for, forfeits fifty dollars for the use of said corporation, and also for- feits for its use twenty-five dollars in addition for every day he so neglects after the expiration of the said fifteen days, and such additional penalty may be computed and collected up to the time of the trial of any action brought for the recovery thereof. The penalty herein provided for may be sued for and collected, with costs, in any court of law within the state of California having jurisdiction, by and in the name of said corporation. History: Enacted March 21, 1905. Stats, and Amdts. 1905, pp 572-574; see introductory note to this chapter. 202 Tit.II,ch.VI.] LIFE, HEALTH, ETC., COMPANIES. § 4S3d [This chapter Avas added at the recommendation of Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-], pp. 359-366, held unconstitutional, see history, § 4 ante; re-enacted at instance Code Commissioner March 20, 1905, Stats, and Amdts. 1905, p. 418. A codification of Act March 19, 1891, Stats, and Amdts. 1891, p. 126. In connection witli tliat Act see San Fran- cisco Sav. Union vs. Long, 123 Cal. 107, 110, 55 Pac. Rep. 708; Murray vs. Superior Court, 129 Cal. 628, 633, 62 Pac. Rep. 191.] CHAPTER VI. LIFE, HEALTH, ACCIDENT, AND ANNUITY OR ENDOWMENT INSURANCE ON THE ASSESSMENT PLAN. § 453d. Contracts which may be made by, defined. § 453e. Formation of corporations; issuing- of contracts; invest- ments. § 453f. Pre-existing corporations, riglit of to reincorporate. § 453g. Contracts of insurance; contents and effects of. § 453h. Reserve and emergency fund. § 453i. Foreign corporations; conditions precedent to doing bus- iness in tliis state. § 453j. Limitations upon right to issue contracts of insurance. § 453k. Exemptions from attachment and execution. § 4531. Statements to be filed with the insurance commissioner; proceedings to be taken by him thereon. § 453m. Lapsing of policies, when forbidden. § 453n. Fees and penalties. § 453o. Insurance commissioner to present bills for certain ex- penses. § 453p. Exemption of fraternal societies from this chapter. §453d. CONTRACTS WHICH MAY BE MADE BY, DEFINED. Every contract whereby a benefit may accrue to a party or parties therein named upon the death or phys- ical disability of a person insured thereunder, or for the payment of any sums of money dependent in any degree tipon the collection of assessments or dues from persons holding similar contracts, is deemed a contract of mutual insurance upon the assessment plan. Such contracts must 203 §453e CIVIL CODE. [Div.I.Pt.IV. show that the HabiHties of the insured thereunder are not limited to fixed premiums. History: Enacted March 20, 1905, Stats, and Amdts. 1905, p. 418. See introductory note to this cliapter. A codification of § 1, Act March 19, 1891, Stats-, and Amdts. 1891, p. 126. § 453e. FORMATION OF CORPORATIONS; ISSUING CONTRACTS; INVESTMENTS. Corporations may be formed to carry on the business of mutual insurance upon the assessment plan, and are subject only to the provisions of this chapter. [Membership before contracts issued.] No such corpora- tion must issue contracts of insurance until at least two hun- dred persons have applied, in writing, for membership or insurance therein, and have paid to the treasurer of such corporation the sum of five thousand dollars. This suin must be invested in bonds or securities, approved by the in- surance commissioner of this state, or deposited in some bank in this state where it will earn interest. [Deposit with state treasurer.] Said bonds or sectirities, or evidences of such deposit, must be placed, through the insurance commissioner of this state, with the state treas- urer, and the principal sum must be held in trust for the contract-holders of such corporation, with the right in the corporation to exchange said bonds, securities, or evidence of bank deposit for others of like value. Such corporation must also, as a condition precedent to issuing any contracts of insurance, obtain the written certificate of the insurance commissioner that it has complied with the requirements of this chapter; and that the name of the corporation is not the same as that of any other corporation of this or other states, as indicated by the insurance department reports in his office; nor must the commissioner approve any name or title so closely resembling another as to mislead the public. [No legal existence for one year, unless, etc.] No corpora- tion formed hereunder has legal existence after one year from 204 Tit. II, ch. VI.] PRE-EXISTING CORPORATION. §§ 453f, 453g the date of its articles, unless its organization has been com- pleted and business commenced; nor must any corporation or individual solicit, or cause to be solicited, any business, until such corporation has complied with the provisions of section six hundred and thirty-three of the Political Code. [Construction.] Nothing contained in this chapter shall be construed to exempt any corporation from the provisions of sections two hundred and ninety-six and two hundred and ninetj^-nine of this code., History: Enacted March 20, 1905, Stats, and Amdts. 1905, pp. 41S-419. See introductory note to this chapter. A codification of § 2 Act March 19, 1891, Stats, and Amdta. 1N91, pp. 126-127. §453f. PRE-EXISTING CORPORATION, RIGHT OF TO REINCORPORATE. Any existing corporation en- gaged in the business of life, health, accident, or endowment insurance on the assessment plan may reincorporate under the provisions of this code and chapter, but is not obliged to do so, and may, without such reincorporation, exercise the rights, powers, and privileges conferred by this chapter. Hi-story: Enacted March 20, 1905, Stats, and Amdts. 1905, p. 419. See introductory note to tliis chapter. A codification of § 3 Act March 19, 1891, Stats, and Amdts. 1891, p. 127. §453g. CONTRACTS OF INSURANCE; CONTENTS AND EFFECTS OF. Every contract of insurance issued by such corporation must specify the sum or sums to be paid upon the happening of the contingency insured against, and when such payments must be made. Unless the contract is invalidated by fraud or by breach of its conditions, the cor- poration is obligated to pay the beneficiary the amount or amounts specified in its contract at the time or times therein named, and such indebtedness is a lien upon all the property of such corporation, with priority over all indebtedness thereafter incurred, except as hereinafter provided in case of insolvency. 205 §4S3h CIVIL CODE. [Div.I.Pt.lV. [Forfeiture of right to do business by failure to pay.] Failure to make such payment, within thirty days after no- tice, at the home office, by mail, as provided by law, of a final judgment, unless waiver is made by the beneficiary, constitutes a forfeiture of the right to do business. History: Enacted March 20, 1905, Stats, and Amdts. 1905, p. 419. See introductory note to this chapter. A codification of § 4 Act March 19, 1891, Stats, and Amdts. 1891, p. 127. §453h. RESERVATION AND EMERGENCY FUND. Every domestic corporation, organized to do or doing busi- ness of insurance on the assessment plan, inust accumulate a reserve or emergency fund, which must, at all times, be not less than the largest benefit contracted to be paid by it to any one person. Every corporation organized under the provisions of this chapter must accumulate such fund within a year from the date of its certificate of incorporation. [Investment of reserve or emergency fund.] Such fund, to the extent of the largest amount contracted to be paid by any such corporation to any one person, must be invested and deposited, as provided in section four hundred and fifty- three e, with the right in the corporation to exchange any such securities for others of equal value. [Deposit part of fund.] The deposit required by section four hundred and fifty-three e constitutes a part of the reserve required by this section, at the option of such cor- poration. When any such corporation discontinues business, this fund must be returned to such corporation, or disposed of as may be determined by the superior court of the coun- ty in which is its principal place of business. History: Enacted March 20^ 1905, Stats, and Amdts. 1905, p. 418. See introductory note to this chapter. A codification of § 5 Act Marcii 19, 1891, Stats, and Amdts. 1S91, pp. 127-128. 206 Tit.II,ch.VI.] FOREIGN CORPORATIONS. § 453i §453i. FOREIGN CORPORATIONS. CONDITIONS PRECEDENT TO DO BUSINESS IN THIS STATE, Corporations organized under the laws of any other state or country to transact the business of mutual assessment in- surance must, as a condition precedent to transacting busi- ness in this state, comply with the provisions of sections four hundred and five and four hundred and eight of this code, and deposit with the insurance commissioner of this state a certified copy of its charter or other instrument re- quired by its home authorities; a statement under oath, of its president or secretary, of its business for the preceding year, in such form as may be required by the insurance com- missioner of this state; an appointment of a general agent, service upon whom binds the corporation; a certificate that for the next preceding twelve months it has paid in full the maximum amount named in its contract of insurance; a cer- tificate from the proper officer of its state or government that like corporations of this state are legally entitled to do business in such state or country; copies of its contracts of insurance and applications, which must show that the lia- bilities of its members are not limited to fixed premiums; and evidence, satisfactory to the insurance commissioner, that the corporation has accumulated a fund equal to that required of like corporations in this state, constituting a re- serve or surplus fund, held in trust for the benefit of its contract-holders, and so invested and held as required by the laws of the state or government under which such cor- poration was organized. [License, issuance, renewal, and revocation.] The insur- ance commissioner must thereupon issue a license to such corporation to do business in this state. This license must be renewed annually, and may be revoked whenever it is ascertained that the statements required to be made by this section are not true. Upon such revocation, notice thereof must be given by the insurance commissioner by publication in some newspaper published in the city and county of San 207 §453j CIVIL CODE. [Div.I,Pt.IV. Francisco, for two weeks, daily, and no new contracts must be made by such company in this state. [License, fees, taxes, and penalties.] When any other state or country imposes any additional license, fees, taxes, or penalties upon any corporation organized or doing busi- ness under this chapter, like license, fees, taxes, or penalties are imposed upon corporations of the same kind and their agents of such state or country doing business in this state. Hi-story: Enacted March 20, 1905, Stats, and Amdts. 1905, pp. 419-420. See introductory note to this chapter. A codification of § 6 Act March 19, 1S91, Stats, and Amdts. 1891, p. 128. As to appointment of agent upon whom ser- vice may be made, see Act April 1, 1872, Stats. 1871-2, p. 826. §453j. LIMITATIONS UPON RIGHT TO ISSUE CONTRACTS OF INSURANCE. No corporation doing business under this chapter, except accident or casualty cor- porations, must issue a contract of insurance upon the life of any person under fifteen nor over sixty-one years of age. Every such contract of insurance must be founded upon written application therefor, and, except where the applica- tion is for health, accident, or casualty insurance only, or for one hundred dollars life insurance or less, such application must be accompanied bj^ the report of a reputable physician, containing a detailed statement of his examination of the applicant, showing the applicant to be in good health, and recommending the issuance of a contract of insurance. [False or fraudulent statement by solicitor, etc.] Any so- licitor, agent, employee, examining physician, or other per- son, making a false or fraudulent statement to any corpora- tion doing business under this chapter, with reference to any application for insurance, or for the purpose of obtain- ing any money or benefit from such corporation, is guilty of a misdemeanor; and any person who makes a false state- ment of any material fact or thing in a sworn statement as to the death or disability of a contract-holder, in any such 208 Tit. II, ch. VI.] EXEMPTION FROM ATTACHMENT. §§ 453^^ 4531 corporation for the purpose of procuring or aiding the bene- ficiary or beneficiaries or contract-holder in procuring the payment of a benefit named in the contract, is guilty of perjury. History: Enacted March 20, 1905, Stats, and Amdts. 1905. pp. 420-421. See introductory note to this chapter. A codification of Act March 19, 1891, Stats, and Amdts. 1891, pp. 128-129. §453k. EXEMPTIONS FROM ATTACHMENT AND EXECUTION. The money, benefit, annuity, endowment, charity, relief, or aid to be paid as provided by the con- tracts issued by any corporation doing business under this chapter, is not liable to attachment or other process, nor to be seized, taken, appropriated, or applied by any legal or equitable process, nor by operation of law, to pay any debts or liability of the contract-holder or any beneficiary named thereunder. History: Enacted March 20, 190'5, Stats, and Amdts. 1905, p. 421. See introductory note to this chapter. A codification of § 8 Act March 19, 1891, Stats, and Amdts. 1891, p. 129. §453 1. STATEMENT TO BE FILED WITH THE IN- SURANCE COMMISSIONER; PROCEEDINGS TO BE TAKEN BY HIM THEREON. Every corporation, whether domestic or foreign, doing the business of effecting insur- ance on the assessment plan must, annually, on or before the first day of February, file with the insurance commis- sioner, in such form as he may prescribe, a statement of its affairs for the year ending on the preceding thirty-first day of December. The insurance commissioner, in person or by duly authorized deputy, has the power of examination into the affairs of any domestic corporation doing business or claiming to do business under this chapter, at any time, in his discretion, and must make such examination at least once a year. 209 §453m CIVIL CODE. [Div.I,Pt.IV. [Revoking authority to do business; procedure.] If he, after an examination of the affairs of a corporation, finds that it is not doing its business in conformity to this chap- ter, or that it is doing a fraudulent or unlawful business, or that it is not carrying out its terms of contract, or that it cannot, within three inonths from the date of notice of default, pay its obligations, he must cite the president, sec- retary, manager, or general agent of the corporation, or all of them, to appear before him, stating the time and place, to show cause why the authority of the corporation to do business should not be revoked, and if cause is not shown, then he must report the facts to the attorney-general of the state, who must commence proceedings in the proper court to restrain the corporation from doing any further business. History: Enacted March 20, 1905, Stats, and Amdts. 190.5, p. 421. See introductory note to this chapter. A codification of §§ 9 and 10 Act March 19, 1891, Stats, and Amdts. 1891, p. 129. Compare Act 1856, Stats. 1856. p. 752. See In Matter Calif. Mut. L. Ins. Co., 181 Cal. 364, 22 Pac. Rep. 869; Murray vs. Superior Court, 129 Cal. 628, 633, 62 Pac. Rep. 191. §453m. LAPSING OF POLICIES. WHEN FORBID- DEN. No policy or certificate issued by any corporation or association doing business under the provisions of this chap- ter lapses for the non-payment of any assessments, dues, or premiums, unless the corporation or association has first mailed to the insured under such policy or certificate, at his or her last given post-office address, a notice setting forth the amount to be paid, and the time the same is due and payable; and such notice must be mailed at least fifteen days before the assessment is due; provided, that such cor- porations doing business under this chapter as collect spe- cific amounts at specific dates, as contained in the contract, are not compelled to send such notices; and an affidavit made by the officer, bookkeeper, or clerk of any such cor- poration having charge of the mailing of notices, setting 210 Tit.II.ch.VT.] FEES AND PENALTIES. §§ 453n, 453o forth the facts as they appear on the records in the office of the said corporation, showing that such notice was mailed and the date of mailing, is conclusive evidence of the mailing of such notice. ' History: Enacted March 21, 1905, Stats, and Amdts. 1905, pp. 421-422. See Introductory note to this chapter. A codification of § 11 Act March 19, 1891, Stats, and Amdts. 1891, pp. 129-130. §453n. FEES AND PENALTIES. The fees for filing statements, certificates, or other documents required by this chapter, or for any service or act of the insurance commis- sioner, and the penalties for any violation of this chapter, must, except as otherwise provided herein, be the same as provided in the laws of this state relating to life insurance companies, and must be disposed of as provided by such laws. History: Enacted March 20, 1905, Stats, and Amdts. 1905. p. 422. See introductory note to tliis chapter. A codification of § 12 Act March 19, 1891, Stats, and Amdts. 1891, p. 130. §453o. INSURANCE COMMISSIONER TO PRESENT BILLS FOR CERTAIN EXPENSES. For all lawful ex- penses under this chapter, or by reason of any of its pro- visions, in the prosecution of any suit or proceeding, or otherwise, for the enforcement of the provisions of this chapter, the insurance commissioner must present bills, duly certified by him, and accompanied with vouchers, to the state board of examiners, who may allow the same, and direct payment thereof to be made; and the state controller must draw warrants therefor oji the state treastirer for the pay- ment of the same to the insurance commissioner, out of the general fund, in addition to the ordinary contingent ex- pense. 211 §453p CIVIL CODE. [Div.I.Pt.IV. History: Enacted March 20, 1905, Stats, and Amdts. 1905, p. 422. See introductory note to this chapter. A codification of § 13 Act of March 19, 1891, Stats, and Amdts. 1S91, p. 130. §453p. EXEMPTION OF FRATERNAL SOCIETIES FROM THIS CHAPTER. The provisions of this chapter do not apply to secret or fraternal societies, lodges, or coun- cils, which conduct their business and secure membership on the lodge system exclusively, having rittialistic work and ceremonies in their societies, lodges, or councils, nor to any mutual or benefit association organized or formed and com- posed of members of any such society, lodge, or council exclusively. History: Enacted March 20, 1905, Stats, and Amdts. 1905, p. 422. See introductory note to this chapter. A codification of § 14 Act March 19, 1891, Stats, and Amdts. 1891, p. 130. 212 Tit.II.ch.VIT.] TITLE INSURANCE COMPANIES. § 453s, 453t [A new cliapter is hereby added (SLats. anJ Amdts. liJ13, p. 490) to the Civil Code, to be known as chapter VII, of title II, of part IV, of division first, of said Civil Code, relating to title in.surance corporations, and to read as follows:] CHAPTER VII. TITLE INSURANCE CORPORATIONS. § 4.53s. liiie insurance companies subject to insurance lav.'S and insurance commissioner. § 453t. Guarantee fund and investments. § 453u. Title insurance surplus fund. § 453v. Policy of title insurance defined. § 4.53w. Further powers of title insurance companies. § 453x. Combined title insurance and trust company. § 453y. Must have certificate of insurance commissioner before issuing policy. § 453z. Loans to directors, officers and employees [prohibited]. §453s. TITLE INSURANCE COMPANIES SUBJECT TO INSURANCE LAWS AND INSURANCE COMMIS- SIONER. Every title insurance company shall be subject to and shall comply with all the requirements of the insur- ance laws and the rules a,nd regulations of the insurance de- partment of this state, and the insurance commissioner shall have the same power and authority regarding any such cor- poration that he may exercise in relation to other insurance corporations organized tmder the laws of this state, includ- ing the right to examine and inspect the financial condition and affairs of such company relating to the insurance busi- ness of such companj', and to compel compliance with the provisions of law governing any such corporation. History: Enacted June 6, 1913, Stats, and Amdts. 1913, p. 490. In effect August 10, 1913. §453t. GUARANTEE FUND AND INVESTMENTS. Every title insurance company, before issuing any guarantee 213 §453t CIVIL CODE. [Div.I.Pt.IV. or policy of insurance, shall deposit with the state treasurer, as herein provided, as a "guarantee fund" for the security and protection of the holders of, or beneficiaries under, such guarantees or policies of insurance, one hundred thousand dollars. Any such deposit may be made either in lawful money of the United States or in any of the securities specified in subdivisions one, two, three, four and five of section four hundred twenty-one of this code. Said money or securities shall be first approved by the insurance com- missioner, and upon his written order, deposited with the state treasurer for the purpose herein specified, and said treasurer shall give his receipt therefor, and thereafter, sub- ject to the provisions of this chapter, shall hold such de- posits of money or securities for the security and pro- tection of the holders of, or beneficiaries under, any guar- antee or policy of insurance issued by such company, and the state shall be responsible for the custody and safe re- turn of any money or securities so deposited. Said securities or money so deposited may, with the approval of the in- surance commissioner, be withdrawn or exchanged from time to time for other like securities, or lawful money, re- ceivable as aforesaid. So long as the company so depositing said money or securities shall continue solvent, it shall have the right and shall be permitted by the state treasurer to receive the interest and dividends on any securities so de- posited. Said securities and money shall be subject to sale and transfer, and to the disposal of the proceeds thereof by said state treasurer only on the order of a court of competent jurisdiction and for the security and protection of the hold- ers of such guarantees and policies of insurance. [Mortgages.] When auy part of the securities so deposited with the state treasurer consists of notes or bonds secured by mortgage or deed of trust, or in loans upon real property secured by mortgage or deed of trust, such mortgages or deeds of trust shall be accompanied by evidence ol title issued by a person, company, or corporation designated or approved bj^ the insurance commissioner and authorized by 214 Tit.II,ch.VII.] MORTGAGES— PLANT INVESTMENT. § 453t law or otherwise found by the insurance commissioner to be competent to issue such evidence of title. Such evidence of title shall consist either of a full abstract of title, a full certificate of title, or a guarantee or policy of title insur- ance, and such evidence of title shall be examined and approved by or under the direction of the insurance com- missioner. The value of the property covered by each such mortgage or deed of trust shall be appraised by one or more appraisers selected or approved by the insurance com- missioner. The appraisers shall be residents of the county in which the property or some part thereof is situated. The reasonable cost of examining such evidence of title and of making such appraisement, shall be paid by the title in- surance company making such deposit, and shall not ex- ceed twenty dollars for examining the title to the property covered by each mortgage or deed of trust, nor five dollars for each appraiser, not exceeding two, besides the necessary expenses of such appraisers; provided, that as to any part of the securities so deposited with the state treasurer which consists of notes or bonds secured by mortgage or deed of trust, payment of which is guaranteed by a policy of mortgage insurance, or of mortgage participation certificates, issued by a mortgage insurance company in accordance with the provisions of chapter VIII of title II of part IV of division first of the Civil Code, such evidence of title need not be required. [Plant investment.] Any such corporation organized under the laws of this state and having a capital stock paid in, in cash, of more than one hundred thousand dollars, after depositing said guarantee fund as above provided, may in- vest an amount not exceeding fifty per cent of its subscribed capital stock in the preparation and purchase of materials or plant necessary to enable it to engage in such title insur- ance business; and such materials or plant shall be deemed an asset, valued at the actual cost thereof, in all statements and proceedings required by law for the ascertainment and determination of the condition of such corporation, or at 215 §§453u, 453v civil code. [Div.l.Pt.lV. such lesser value as may be estimated by such corporation in any such statement or proceeding, or omitted entirely therefrom. History: Enacted June 6, 1913, Stats, and Amdts. 1913, p. 490; amended June 7, 1915, Stats, and Amdts. 1915, p. 1265. In effect August S, 1915. § 453u. TITLE INSURANCE SURPLUS FUND. Every title insurance company shall annually set apart a sum equal to ten per cent of its premiums collected during the year, w^hich sums shall be allow^ed to accumulate until a fund shall have been created equal in amount to tw^enty-five per cent of the subscribed capital stock of such corporation. Such fund shall be maintained as a further security to holders of the guaranties and policies of insurance issued by such cor- poration, and shall be known as the "Title insurance 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 provided for its accumulation. The reporting of a loss shall be deemed an impairment of such fund for the purposes of this sec- tion. [Dividends.] Such corporation must not make any divi- dends except from profits remaining on hand after retaining unimpaired: 1. The entire subscribed capital stock. 2. The amount set apart as a surplus fund under the pro- visions of this section. 3. A sum sufficient to pay all liabilities for expenses and taxes, and all losses reported or in course of settlement, with- out impairment of the title insurance surplus fund required to be set apart as hereinabove provided. Hi.story: Enacted June 6, 1913, Stats, and Amdt.-. 1913, p. 491. In effect August 10, 1913. §453v. POLICY OF TITLE INSURANCE DEFINED. Any written contract or instrument purporting to show the 216 Tit.II.ch.VII.] FUllTHER POWERS. §§ 453w, 453x title to real property, or furnish information relative there- to, which shall in express terms purport to insure or guar- antee such title or the correctness of such information, shall be deemed a policy of title insurance. Hisloo': Enacted June 6, 1913, Stats, and Amdts. 1913, p. 491. In effect August 10, 1913. §453w. FURTHER POWERS OF TITLE INSURANCE COMPANIES. Every title insurance company organized under the lav/s of this state shall also have power to guar- antee or insure the identity, due execution, and validity of any note or bond secured by mortgage or trust deed, and the identity, due execution and validity and recording of any such mortgage or trust deed, and the identity, due execution and validity of bonds, notes or other evidence of indebted- ness issued by this state, or by any county, city and county, city, school district, irrigation district or other municipality or district therein, or by any private or public corporation, and to act as registrar or transfer agent of this state, or of any county, city and county, city, school district, irriga- tion district", or other municipality or district therein, or of any private or public corporation, and to transfer or counter- sign any such bonds, notes or other evidence of indebtedness and to transfer or coimtersign certificates of stock of any private or public corporation. Hislorj : Enacted June 6, 1913, Stats, and Amdts. 1913, p. 491. Ill effect August 10, 1913. § 453x. COMBINED TITLE INSURANCE AND TRUST COMPANY. Any title insurance corporation incorporated under the general incorporation laws of this state, author- ized by its articles of incorporation to act as executor, ad- ministrator, guardian, assignee, receiver, depository, agent or trustee, or to do a general trust business, and having a capital of not less than three hundred thousand dollars actually paid in, in cash, may also do busmess as a trust 217 §453x CIVIL- CODE. [Div.I.Pt.IV. company, and maintain a trust department as well as a title insurance department, on compliance with the following con- ditions: 1. [Consent of superintendent of banks, and of insurance commissioner.] When such title insurance company desires to do such a departmental business, it shall first obtain the consent of both the superintendent of banks and of the in- surance commissioner, and in its application for such con- sent, must file a statement making a segregation of its capital and surplus for each such department. At least two hundred thousand dollars of its capital must be apportioned by such statement to its trust department. The respective portions of such capital and surplus, when such apportion- ment has been approved by the superintendent of banks and by the insurance commissioner, shall be considered and treated as the separate capital and surplus of each such de- partment respectively, as if each such department was a separate business. 2. LTitle department subject to insurance laws.] Such company, as to its title insurance department, shall be sub- ject to and shall comply with all the requirements of the insurance laws and the rules and regulations of the insur- ance department of this state, and may invest its capital ap- portioned to its title insurance department, and the accumula- tions therefrom, in the securities in which the capital and accumulations of insurance companies are allowed by the laws of this state to be invested, including the materials and plant necessary to enable it to engage in the title in- surance business, as provided in this chapter. 3. [Trust department subject to banking laws.] Such company, as to its trust department, shall be subject to and shall comply with all the requirements of the banking laws and the rules and regulations of the state banking department of this state, and may invest its capital apportioned to its trust department, and the accumulations therefrom, and 218 Tit.] I, ch.VII.] CERTIFICATE FOR BUSINESS. §§ 453y, 453z trust funds received by it, in accordance with the laws of this state relative to the investment of funds of trust com- panies. Historj-: Enacted June 6, 1913, Stats, and Amdts. 1913, p. 492. In eft'ect August 10, 1913. § 453y. MUST HAVE CERTIFICATE OF INSURANCE COMMISSIONER BEFORE ISSUING POLICY. No corporation shall make any contract or issue any policy of guarantee or insurance affecting titles to real estate, or engage in the business of a title insurance company, until it has obtained from the insurance commissioner his cer- tificate that such company has complied with the provisions of this chapter and is duly authorized to do business as such title insurance company. History: Enacted June 6, 1913, Stats, and Amdts. 1913, p. 492; amended June 7, 1915, Stats, and Amdts. 1915, p. 1266. lo effect August 8, 1915. §453z. LOANS TO DIRECTORS, OFFICERS AND EMPLOYEES [PROHIBITED]. No loan shall be made bj- any title insurance company, directly or indirectly, to any of its officers or directors or employees or to any member of the family of any ofificer or director. [Penalty]. Any officer, director, agent or employee of any such company who knowingly consents to any violation of the terms or provisions of this section shall be guilty of a misdemeanor. History: Enacted June 6, 1913, Stats, and Amdts. 1913, p. 493. In effect August 10, 1913. 219 §4S3aa CIVIL CODE. [Div.I.Pt.lV. [This is a new cliapter added to Title II of Part IV of Divi- sion One of the Civil Code by Act approved June 6, 1913 (Stats, and Amdts. 1913, p. 479; amended by Act approved June 15, 1915) (Stats, and Amdts. 1915, p. 1538) to read as follovs^s:] CHAPTER VIII. MORTGAGE INSURANCE. § 453aa. Mortgage insurance companies subject to insurance laws and the authority of insurance commissioner. § 4o3bb. Mortgage insurance company defined. The term "se- curity" as used in this chapter defined. Policy of mortgage insurance defined. Mortgage participa- tion certificate defined. Entire mortgage guaranty defined. § 453cc. Requisite capital stock of mortgage insurance com- pany; certificate of authority required. Kind and amount of securities that may be guaranteed. Poli- cies of mortgage insurance do not constitute "debts" or "indebtedness" of issuing company. Can not invest in, hold or own capital stock of another corporation, except as provided herein. § 453dd. Must accumulate a surplus. Restriction on making of dividends. § 4'53ee. Investments permitted. § 458ff. Mortgage participation certificates and guaranteed se- curities made legal investments for trust funds, in- surance companies and others. § 453gg. Quarterly reports to insurance commissioner. [§453hh. Quarterly report to insurance commissioner], [Re- pealed by omission and incorporation]. § 453aa. MORTGAGE I'NfSURANCE COMPANIES SUB- JECT TO INSURANCE LAWS AND THE AUTHORITY OF INSURANCE COMMISSIONER. Every mortgage in- surance company shall be subject to and shall comply with all the requirements of the laws of this state made ap- Dlicable to insurance companies generally and the rules and regulations or the insurance department of this state, ex- cepting in so far as said laws, rules or regulations may be inconsistent with the other provisions in this chapter con- 220 Tit.II.ch.VIII.] MORTGAGE INSURANCE/ §§ 453bb tained; and the insurance commissioner shall have the same power and authority over such company that he may exer- cise in relation to other insurance companies, including the right to examine and inspect the financial condition and affairs of such company relating to the business of such company, and to compel compliance with the provisions of law governing any such company. History: Enacted June 6, 1913, Stats, and Amdts. 1913, p. 479; amended June 15, 1915, Stats, and Amdts. 1915. p. 1539. lu effect August 11, 1915. §453bb. MORTGAGE INSURANCE COMPANY DE- FINED. THE TERM "SECURITY" AS USED IN THIS CHAPTER DEFINED. POLICY OF MORTGAGE IN- SURANCE DEFINED. MORTGAGE PARTICIPATION CERTIFICATE DEFINED. ENTIRE MORTGAGE GUAR- ANTEE DEFINED. The term "mortgage insurance com- pany" shall include every association, corporation, firm or person who shall engage as a business in making and issuing policies of mortgage insurance. The term "security" wherever used in this chapter, without a different meaning being specified or made apparent, shall be construed to refer to and include within its meaning a note or notes, or bond or bonds, together with the mort- gage or deed of trust securing the same which evidence a debt secured by a first lien on a marketable title in fee to real estate, or to real estate with improvements thereon. Any contract made and issued by a mortgage insurance company which purports to guarantee or insure against loss on, or to guarantee the payment of, within a specified time, the whole, or any part, of the principal, interest or other sums agreed to be paid under the terms of any security, or other sums secured under the terms of any security, shall be deemed, and is hereby designated, a "policy of mortgage msurance." A policy of mortgage insurance which evidences the owner- ship by the insured of an undivided or other partial share 221 §453cc CIVIL CODE. [Div.I,Pt.IV. or interest, or the right to participate to a specified extent, in a security, or in a group consisting of several securities, and purports to guarantee the, payment of such securities, or the payment of such undivided or other partial share or interest therein, or the amount of such participation, may be referred to as, and is hereby designated, a "mortgage par- ticipation certificate." A policy of mortgage insurance, other than a mortgage participation certificate, which covers and refers to the en- tire indebtedness evidenced by a security, may be referred to as, and is hereby designated, an "entire mortgage guar- anty." History: Enacted June 6, 1913, Stats, and Amdts. 1913, p. 479; amended June 15, 1915, Stats, and Amdts. 1915, p. 1539. In effect August 11, 1915. §453cc. REQUISITE CAPITAL STOCK OF MORT- GAGE INSURANCE COMPANY; CERTIFICATE OF AUTHORITY REQUIRED. KIND AND AMOUNT OF SECURITY THAT MAY BE GUARANTEED. POLICIES OF MORTGAGE INSURANCE DO NOT CONSTITUTE "DEBTS" OR "INDEBTEDNESS" OF INSURING COM- PANY. CANNOT INVEST IN, HOLD OR OWN CAP- ITAL STOCK OF ANOTHER CORPORATION, EXCEPT AS PROVIDED HEREIN. No mortgage insurance com- pany shall engage in business, or issue any policy of mort- gage insurance, within this state without having at least two hundred and fifty thousand dollars in capital stock fully paid in, in cash; nor until after having obtained from the insurance commissioner his certificate that sucli company has complied with the laws of this state applicable thereto and is duly authorized to do btisiness as a mortgage insur- ance company. [First lien security.] No mortgage insurance company shall guarantee the payment of any security except the same be a first lien upon a marketable title in fee to the property covered thereby. No mortgage insurance company shall 222 Tit. II, ch. VIII.] NOT TO HOLD OTHER STOCK. § 453cc issue any policy of mortgage insurance guaranteeing the payment of any portion of any security exceeding fiftj' per centum of the market value of the real estate with im- provements covered by the same. No mortgage insurance company shall have at any time outstanding policies of mortgage insurance guaranteeing the payment of securities the aggregate amount of the unpaid principal of which ex- ceeds twenty times the amount of its paid up capital. The making and issuing of policies of mortgage insurance under this act by mortgage insurance companies must not be construed to be the creation of debt within the meaning of the phrase "create any debts" in section three hundred nine of the Civil Code, nor of indebtedness within the mean- ing of the phrase "such capital stock can not be diminished to an amount less than the indebtedness of the corporation" in section three hundred fifty-nine of the Civil Code, except that no mortgage insurance company shall reduce its capital stock to an amount less than is required by this act to be maintained by such mortgage insurance company, or less than the indebtedness of such mortgage insurance company other than such policies of mortgage insurance. [Not to hold stock of other company.] No mortgage in- surance company shall invest in, hold or own any of the capital stock of any other corporation, or make any loan, in whole or in part, on the security of capital stock of any other corporation; provided, that a mortgage insurance com- pany make take in its own name as pledgee, in connection with any loan conforming to the provisions of sudivision five of section four hundred fifty-three ee, stock in a water or power corporation in cases where such stock represents the right to receive or obtain water or power for the irrigation or cultivation, or other beneficial use thereon, of the real estate covered by the loan, whether such right be appurte- nant thereto or otherwise; and if such loan be used as a part of a security or of a group of securities taken as the basis for the issue of mortgage participation certificates, may 223 §453dd CIVIL CODE. [Div.I.Pt.IV. assign such stock to a trust company as a part of the security or securities required to be assigned by the terms of sec- tion four hundred fifty-three ff. Said company may also liold, use, transfer or dispose of any such stock for the benefit and protection of such loans. [No loan to officers.] No loan shall be made by any mortgage insurance company' directly or indirectly to any of its officers or directors. [Penalty.] A violation of any of the terms or provisions of this section shall not make any security or any policy of such company void or voidable, but any officer, director, agent or other emploj'ee of any mortgage insurance com- pany who know^ingly consents to any violation of any of the terms or provisions of this section shall be guilty of a misdemeanor. History: Enacted June 6, 1913, Stats, and Amdts. 1913, p. 479; amended June 15, 1915, Stats, and Amdts. 1915, p. 1539. In effect August 11, 1915. §453dd.— MUST ACCUMULATE A SURPLUS. RE- STRICTION ON MAKING DIVIDENDS. Every mort- gage insurance company shall annually set apart a sum equal to ten per centum of its net earnings collected during the year, which sums shall be allowed to accumulate until a fund shall have been created equal in amount to twenty-five per centum of the paid up capital stock of such company. Such fund shall be maintained as a further security to the holders of policies of mortgage insurance issued by such company, and shall be known as the "surplus;" and if at any time such surplus shall be impaired by reason of a loss, the amount by which it may be impaired shall be restored in the manner hereinabove provided for its accumulation. All additions to said surplus, whether made in fulfillment of the requirements of this section or voluntarily by the company, shall be and remain subject to the provisions of this law. 224 Tit.II.ch.VIII.] INVESTMENTS PERMITTED. § 453ee [Dividends.] Such company must not make any dividends except from profits remaining on hand after retaining un- impaired: 1. The entire capital stock. 2. The amount set apart as a surphis under the provisions of this section. 3. A sum sufficient to pay all liabilities for expenses and taxes, and all losses reported or in course of settlement, with- out impairment of said surplus. History: Enacted June 6, 1913, Stats, and Amdts. 1913, p. 479; amended June 15, 1915, Stats, and Amdts. 1915, p. 1540. lu effect Augu.st 11, 1915. i §453ee. INVESTMENTS PERMITTED. A mortgage insurance company may invest its capital, surplus, and ac- cumulations in the purchase of, or loans upon, any of the obligations specified in subdivisions one to six inclusive of this section: 1. Bonds or interest-bearing notes or obligations of the United States or those for which the faith and credit of the United States are pledged for the payment of principal and interest. 2. Bonds of this state or those for which the faith and credit of the State of California are pledged for the pay- ment of principal and interest and bonds of any other state in the United States that has not, within five years next preceding such investment by such insurance company, de- faulted in payment of any part of either principal or interest due upon any legally authorized bond issue. 3. Bonds or interest-bearing notes or obligations issued under authority of law by any county, municipality or school district in this state or in any other state or territory of the United States; provided, that said county, municipality or school district or the state or territory in which it is located has not, within five years next preceding such investment by s 225 §453ce CIVIL CODE. [Div.T.rt.IV. such insurance company, defaulted in payment of any part of either principal or interest due upon any legally authorized bond issue. 4. Bonds of a permanent road division in this state, and any irrigation district bonds which the law may now or hereafter authorize as legal investments for insurance com- panies; provided, that the total amount of bonds issued by any such irrigation district does not exceed sixty per centum of the aggregate market value of the lands within such district, and of the water, water rights, canals, reservoirs, reservoir sites and irrigation works owned or to be acquired or con- structed with the proceeds of any such bonds, by said dis- trict, such facts in reference to bonds of irrigation dis- tricts to be determined by a commission now or hereafter authorized l)y law to ascertain and report upon such facts. 5. Notes or bonds secured by first mortgage or deed of trust or other first lien upon real estate, improved or un- improved; provided, that the principal so lent or the entire note or bond issue so secured shall not exceed fifty per centum of the market value of such real estate, or of such real estate with improvements, provided, also, in case said loan is made, or said note or bond issue created as or for a building loan on real estate, that at no time shall the prin- cipal so lent or the entire outstanding note or bond issue exceed fifty per centum of the market value of the real estate and the actual cost of the improvements thereon. 6. Securities guaranteed by a mortgage insurance company operating under the laws of the State of California, also mortgage participation certificates issued by any such com- pany in accordance with the provisions of this chapter, including securities guaranteed and mortgage participation certificates issued by the investing company. History: Enacted June 6, 1913, Stats, and Amdts. 1913, p. 4S0; amended June 12, 1915, Stats, and Amdts. 1915, p. 1541. Ill effect August 11, 1915. * 226 Tit. II, ch. VI] I.] PARTICIPATION CERTIFICATE. § 453ff § 453ff. MORTGAGE PARTICIPATION CERTIFICATE AND GUARANTEED SECURITIES MADE LEGAL IN- VESTMENTS FOR TRUST FUNDS, INSURANCE COM- PANIES AND OTHERS. Mortgage participation cer- tificates, also securities guaranteed by policies of mortgage insurance issued in conformity with the provisions of this chapter shall be legal investments for all trust funds held by any executor, administrator, guardian, trustee or other person holding trust funds, also for the funds of insurance companies, banks, banking institutions and trust companies, and shall be accepted by the State of California, its officers and officials, as securities comprising any part of any fund or deposit required by law to be made with the State of California, or any officer or official thereof, by any trvist company or insurance company doing business in the State of California, and all premiums required to be paid accord- ing to the terms of any such mortgage participation cer- tificate, or other policy of mortgage insurance, may be charged to or paid out of the income from the note or notes or bond or bonds covered thereby; [Supervision of state banking department.] Provided, that the foregoing provisions of this section, in so far as they refer to mortgage participation certificates, shall apply only to such mortgage participation certificates as evidence the ownership of shares or interests in, or participation in, securities which shall have been assigned to a trust com- pany organized and doing business under the laws of and within this state and shall be held by such trust company for the common and equal benefit of the holders of all mortgage participation certificates issued or to be issued evidencing the ownersliip of shares or interests in, or par- ticipation in, any particular security or group of securities so assigned and such trust, and the administration thereof, shall at all times be and hereby is expressly made subject to the inspection, supervision and control of the superin- tendent of l)anks as fully and completely as if the same 227 §453ff CIVIL CODE. [Div.I.Pt.IV. constituted a court trust under the provisions of the bank act; provided, also, that each such mortgage participation certificate must bear the certificate of such trust company to the effect that the aggregate amount of mortgage par- ticipation certificates then outstanding, including both the one being certified and all others based on the same securit> or group of securities, does not exceed the amount of the unpaid principal of the debt or debts evidenced by such par- ticular security or group of securities; provided, also, that each security so assigned shall be accompanied by a copy of the appraisement and of the certificate of the directors filed or to be filed w^ith the insurance commissioner as required by the provisions of this chapter; provided also, that a copy of each such appraisement and accompanying certificate of the directors shall be promptly, upon the assignment of each such security, transmitted to the superintendent of banks, and that each such copy of appraisement so trans- mitted shall bear an endorsement or certificate executed by the trust company to which each such security is so assigned reciting and setting forth the amount of the unpaid principal named in the security which covers the property described in such appraisement; [Proviso as to securities deposited with state treasurer.] Provided, also, that if any such mortgage participation cer- tificates, or securities guaranteed by policies of mortgage in- surance issued in conformity with the provisions of this chapter, are used as securities comprising any part of any fund or deposit required by law to be made with the state treasurer by a trust company, the securities so guaranteed or the ownership of, or participation in, which is evidenced by such participation certificates must constitute a first lien on improved and productive real estate in the State of California, such improved real estate being worth at least double the amount of such lien; and also that the real estate and improvements which are covered by the lien ot any security so guaranteed or the ownership of, or participation 228 Tit. II, ch. VIII.] SUBSTITUTION OF SECURITIES. § 453ff in, which is evidenced by mortgage participation certificates which are so used shall be reappraised at least once every two years and in the manner in this chapter provided for appraisements, and a copy of each such reappraisement shall be filed with the trust company to which such security shall have been assigned and the original of each such reappraise- ment bearing the endorsement or certificate of such trust company as to the amount of the unpaid principal named in such security shall be filed with the superintendent of banks; provided, further, that the legality or validity of entire mortgage guaranties and mortgage participation cer- tificates heretofore issued which fully conform to and com- ply with the law in force at date of issuance shall not be affected or impaired by the provisions of this chapter and such entire mortgage guaranties and mortgage participation certificates shall continue to be legal investments and recog- nized for all purposes to the extent and in the manner provided by the law in force at date of such issuance. [Substitution of securities.] A mortgage insurance com- pany which issues mortgage participation certificates in ac- cordance with the provisions of this section may at any time and from time to time substitute for any security or securities comprising or constituting a part or parts of a group of securities, the ownership of, or participation in, which is evidenced in whole or in part by any such participa- tion certificates, other securities similarly guaranteed by it and withdraw from the trust company the security or securities for which such substitution shall be made; pro- vided, however, that at all times the amount of the unpaid principal of the debts evidenced by the particular group of securities held by such trust company and aflfected by any such substitution shall not be less than the aggregate amount of the participation certificates theretofore issued then outstanding and evidencing the ownership of undivided or other partial shares or interests, or participation, in such group of securities; and provided, further, that the right 229 §453gg CIVIL CODE. [Div.l.Pt.lV. of substitution hereinbefore provided and the exercise there- of shall not alter or affect the status of such participation certificates as legal investments for trust funds, insurance companies, banks, banking institutions and trust companies as hereinbefore provided, or as securities acceptable by the State of California, its officers and officials, as comprising or constituting any fund or deposit, or any part thereof, re- quired by law to be made with the State of California, or any officer or official thereof, by any trust company or in- surance company doing business in the State of California. History: Enacted June 6, 1913, Stats, and Amdt.s. 191.3, p. 480; amended June 15, 1915, Stats, and Amdts. 1915, p. 1542. In effect August 11, 1915. §453gg. QUARTERLY REPORTS TO INSURANCE COMMISSIONER. Every mortgage insurance company shall make a report in writing to the insurance commis- sioner, which report shall be made quarterly, and shall be verified by the oath of its president or vice president, and its secretary or treasurer or of anj' two of its principal offi- cers. Such report shall contain a statement of each new policy of mortgage insurance issued by such compan}' since the last preceding report, stating specifically whether such policy constitutes an entire mortgage guaranty' or a mortgage participation certificate. [When policy constitutes entire mortgage guaranty.] When such polic}^ constitutes an entire mortgage guaranty, such report shall set forth separately the following facts regarding the security on which the policy is based, namely: 1. The aggregate amount of the unpaid principal indebt- edness evidenced by such security. 2. A description of the property covered liy such security. 3. Separately, the market value of the land and the market value of the improvements thereon, if any, as shown bj^ an 230 Tit.TI.ch.VITI.l QUARTERLY REPORT, ETC. § 453Rg appraisement as provided for by the terms of tliis section, also the aggregate value of such land and improvements. 4. The book and page of the record of the mortgage or deed of trust which is a part of such security. [When policy constitutes mortgage participation certifi- cate.] When such policy constitutes a mortgage participa- tion certificate such report shall set forth, directly or by reference to a previous report, separately the following facts regarding the security or securities on which such participa- tion certificate is based, namely: 1. The aggregate amount of unpaid principal indebtedness evidenced and secured by such security or securities, and, separately, the amount of the unpaid principal indebtedness evidenced and secured by each such security. 2. A description of the property covered by each such security. 3. Separately, the market value of the land and the market value of the improvements thereon, if any, as shown by an appraisement as provided for by the terms of this section, also the aggregate value of such land and improvements. 4. The book and page of the record of each mortgage and deed of trust which is part of such security or securities. 5. The aggregate amount of participation certificates issued, outstanding and based upon the particular security or group of securities on which the certificate so reported is based. [Appraisement of property.] There shall be filed with such report an appraisement of each separate parcel of property mentioned in the report, an appraisement of which has not theretofore been made and filed in accordance with the pro- visions of this section, which appraisement shall be made by a person or corporation approved by the insurance com- missioner and by tlic superintendent of banks. In such ap- praisement the market value of each parcel of land and of the improvements thereon, if any, also the aggregate value 231 §4S3hh CIVIL CODE. [Div.I,Pt.IV. of such parcel of land and improvements shall be stated, to- gether with a general statement of the character of such land and of the kind and condition of such improvements, if any. Such appraisement shall be signed and verified by such appraiser, or by an officer of the corporation making such appraisement, and shall be accompanied by a certificate signed and verified by at least three directors of such mortgage insurance company to the eiifect that in the opinion of the affiants and each of them such appraisement is correct, and that in their opinion the amount thereof does not exceed the market value of the property, and that the principal amount lent on the security of such property does not in their opinion exceed fifty per centum of the market value of such property, also to the effect that said company has in its possession or control evidences of title consisting of a full abstract of title, a full certificate or guaranty of title, or a policy of title insurance, showing that the mortgage or deed of trust securing such loan is a first lien upon a marketable title in fee to the property covered thereby. [Penalty.] In case of the neglect or failure of any such mortgage insurance company to make any such quarterly report as herein provided, sucii company shall forfeit to the State of California ten dollars per day for every day during which such neglect or failure continues; provided, however, that the insurance commissioner shall have author- ity to extend the time within which any such report may be filed for not exceeding a period of ten days. IIi.story: Enacted June 6, 1913, Stats, and Amdts. 1913, p. 4S1; amended June 15, 1915, Stat.s. and Aniilts. 1915, p. 1544. lu eft'ect August 11, 1915. 232 Tit.II.ch.VIII.] QUARTERLY REPORT. § 453hh § 453hh. SAME [repealed by omission and incorpora- tion]. Note: There is no provision in Chapter 769 of Statutes of 1915, p. 1538, repealing § 453hh. as enacted June 6, 1913, Stats, and Amdts. 1913, p. 482, other than that the title to the Act indicates the intention of the legislature to revise all of Chapter VIII, of Title II, of Part IV, of Division One, relative to mortgage insurance, and thereby revises and re-enacts the sections as above given, omitting said § 453hh and all reference thereto. The provisions of § 453hh are incorporated in the sections given above, and the section repealed by omission. 233 §§454,455 CIVIL code. [Div.I,Pt.IV. TITLE III. RAILROAD CORPORATIONS. Chapter I. Officers and Corporate Stock. §§ 454-459. II. Enumeration of Powers, §§465-478. III. Business, How Conducted, §§479-494. CHAPTER I. OFFICERS AND CORPORATE STOCK. § 4.54. Directors to be elected, when. § 4-55. Additional provisions in assessment and transfer of stock. § 4o6. Railroad corporations may borrow money and issue bonds, etc. [Interest; limitation of amount.] § 4.t7. To provide a sinking fund to pay bonds. § 458. Capital stock to be fixed. §459. Certificate of payment of fixed capital stock. §454. DIRECTORS TO BE ELECTED, WHEN. Di- rectors of railroad corporations may be elected at a meet- ing of the stockholders other than the annual meeting, as a majority of the fixed capital stock may determine, or as the by-laws maj^ provide: notice thereof to be given as pro- vided for notices of meetings to adopt by-laws in article two, chapter one, title one, of this part. Hislory: lOnacted March 21, 1S72. §455. ADDITIONAL PROVISIONS IN ASSESSMENT AND TRANSFER OF STOCK. No stock in any railroad corporation is transferable until all the previous calls or in- stalments thereon have been fully paid in; [Transfer not valid, except.] Nor is any such transfer valid, except as between the parties thereto, unless at least 234 Tit.IIT,ch.T.] UATLROADS— BORROWING MONEY. §456 twenty per cent has been paid thereon and certificates issued therefor,, and the transfer approved by the board of di- rectors. History: Enacted March 21, 1S72. §456. RAILROAD CORPORATIONS MAY BORROW MONEY AND ISSUE BONDS, ETC. [INTEREST; LIMITATION OF AMOUNT]. Railroad corporations may borrow, on the credit of the corporation and under such regulations and restrictions as the lioard of directors there- of, by unanimous concurrence, may impose, such sums of money as may be necessary for constructing 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 dis- pose of bonds to raise moneys necessary to pay therefor, 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 con- structing and completing their road, with its equipments and rolling- stock, and all else relative thereto, and for the pur- chase of railroads and other property within the purpose of the corporation. The amount of bonds, or promissory notes, issued for such purposes must not exceed in all the amount of their capital stock; and to secure the payment of such bonds, or notes, they may mortgage 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 under the laws of this state, i or of any other state within the United States, that the directors of the railroad corporation may, by unanimous concurrence, select, may l)e trustees in such deed of trust. History: Enacted March 21, 1S72; amended April 15, 1880, Code Amdts. 1880 (C. C. pt.), p. 10; March 9. 1897, Stats, and Amdts. 1897, p. 73; March 4, 1899, became a law, under consti- tutional provision, without Governor's approval, Stats, and Amdts. 1899, p. 57. 235 §§457-459 CIVIL code. [Div.I,Pt.IV. §457. TO PROVIDE SINKING FUND TO PAY BONDS. 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 any holder of any bond or note so issued, for money borrowed or in payment of any debt or contract for the construction and equipment of such road, the right to convert the principal due or owing thereon into stock of such corporation, at any time within eight years from the date of such bonds, under such regulations as the directors may adopt. History: Enacted March 21, 1872. This section is founded upon § 15 Act May 20, 1861 (Stats. 1861, § 15, p. 607), as amended by § 1 Act May 4, 1862 (Stats. 1862, § 1, p. 547). Con.struetion of section ori^nal act. — See McLane vs. Placer- ville & S. V. R. Co., 69 Cal. 606, 609, 6 Pac. Rep. 748. §458. CAPITAL STOCK TO BE FIXED. When, at any time after filing the articles of incorporation, it is ascer- tained that the capital stock therein set out is either more or less than actually required for constructing, equipping, operating, and maintaining the road, by a two-third[s] vote of the stockholders the capital stock must be fixed, and a certificate thereof, and of the proceedings had to fix the same, must be made out and filed in the ofifice of the secre- tary of state. History: Enacted March 21, 1872. §459. CERTIFICATE OF PAYMENT OF FIXED CAPITAL STOCK. Within thirty days after the payment of the last instalment of the fixed capital stock of any rail- ,road corporation organized under this title and part, the president and secretary and a majority of the directors there- of must make, subscribe, and file in the office of the secre- tary 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 presi- dent and secretary. History: Enacted March 21, 1872. 236 Tit.III,ch.II.] POWERS OF RAILROADS. §465 CHAPTER II. ENUMERATION OF POWERS. § 465. Powers of railroad corporations. §465a. Wliat motive power may be used. Authority must be obtained. § 466. Map and profile to be filed. § 467. May change line of road. § 468. Forfeiture of franchise. [Failure to operate, reverter.] § 469. Crossings and intersections. Condemnation. § 470. Not to use streets, alleys, or water, in cities or towns, except by a two-third[s] vote of the city or town au- thorities. § 471. Conveyance of passengers within city limits [repealed]. § 472. When crossing railroads or highways, how other lands acquired. § 473. Consolidation of railroad corporations. Proceedings ne- cessary thereto. § 473a. Right to have or ,use another road in common. § 474. State lands granted for use of corporations. § 475. Grant not to embrace town lots. § 476. Wood, stone, and earth may be taken from state lands. § 477. Lands to revert to state, when. , § 478. Selections made, how proved and certified to. §465. POWERS OF RAILROAD CORPORATIONS. Every railroad corporation has power: 1. [To make survey for road.] To cause such examina- tion 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 ofificers, agents and employees may enter upon the lands or waters of any person, subject to liability for all damages which they may do thereto; 2. [To accept real estate.] To receive, hold, take, and convey, by deed or otherwise, as a natural person, such vol- untary grants and donations of real estate and other prop- erty, which may be made to it to aid and encourage the construction, maintenance and accommodation of such rail- road. 237 §465 CIVIL CODE. [Div.T.Pt.TV. 3. [To acquire real estate.] To purchase, or by voluntary grants or donations to receive, enter, take possession of, hold and use all such real estate and other property as rhay be absolutely necessary for the construction and maintenance of such railroads, and for all stations, depots and other pur- poses necessary to successfully work and conduct the busi- ness of the road; 4. To lay out its road, not exceeding ten rods wide, and to construct and maintain the same, with one or more tracks, and with such appendages and adjuncts as may be necessary for the convenient use of the same; 5. To construct their roads across, along or upon any stream of water, watercourse, roadstead, bay, navigable stream, street, avenue or highway, or across any railway, canal, ditch or flume which the route of its road intersects, crosses or runs along, in such manner as to afford security for life and property; but the corporation shall restore the stream or watercourse, road, street, avenue, highway, railroad, canal, ditch or flume thus intersected to its former state of usefulness as near as may be, or so that the railroad shall not unnecessarily impair its usefulness or injure its franchise; 6. To cross, intersect, join, or unite its railroad with any other railroad, either before or after construction, at any point upon its route, and upon the grounds of such other railroad corporation, with the necessary turnouts, sidings and switches, and other conveniences in furtherance of the objects of its connections; and every corporation whose railroad is, or shall be hereafter intersected by any new railroad^ shall unite with the owners of such new railroad in forming such intersections and connections, and grant facilities therefor; and if the two corporations cannot agree upon the amount of compensation to be made therefor, or the points or the manner of such crossings, intersections and connections, the same shall be ascertained and determined as is provided in title seven, part three, Code of Civil Pro- cedure (sees. 1237-1263); 238 Tit.III.ch.II.] POWERS OF RAILROADS. §465 7. To purchase lands, timber, stone, gravel or other materials to be used in the construction and maintenance of its road, and all necessary appendages and adjuncts, or acquire them in the manner provided in title seven, part three, Code of Civil Procedure, for the condemnation of lands; and to change the line of its road, in whole or in part, whenever a majority of the directors so determine, as is provided hereinafter; but no such change must vary the general route of such road, as contemplated in its articles if incorporation; 8. To carry persons and property on their railroad, and to receive tolls or compensation therefor; 9. To erect and maintain all necessary and convenient buildings, stations, depots, fixtures and machinery for the accommodation and use of their passengers, freight and business; 10. To regulate the time and manner in which passengers and property shall be transported, and the tolls and com- pensation to be paid therefor within the limits prescribed by law and subject to alteration, change or amendment by the legislature at any time; 11. To regulate the force and speed of their locomotives, cars, trains or other machinery used and employed on their roads, and to establish, execute and enforce all needful and proper rules and regulations for the management of its busi- ness transactions usual and proper for raiload corporations; 12. [To purchase other roads.] To purchase, lease or ac- quire the franchises, rights and property, or any part there- I'f, of any railroad corporation, leasing or owning any rail- road outside of the state of California, and to operate the same, and to use the franchises of any such road, and to build and operate extensions thereof; [Restrictions.] Provided that nothing herein shall author- ize any corporation to purchase the franchises, rights, and property of any railroad operated in competition with it; and to purchase, acquire and hold the stocks, bonds or other 239 §§ 465a, 466 CIVIL CODE. [Div.I,Pt.IV. securities of any railroad corporation organized under the laws of this state or of any other state or territory, with full power to sell the same; provided that nothing herein will authorize any corporation to purchase the stock of any railroad corporation operated in competition with it. History: Enacted March 21, 1872, founded upon and is a substantial re-enactment of § 17 of Act May 20, 1861, Stats. 1861, pp. 614-616; amended by Code Commission, Act March 16. 1901, Stats, and Amdts. 1900-1, p. 367, held unconstitutional, see his- tory, § 69 ante; amendment re-enacted and paragraph 12 added, March 20, 1903, Stats, and Amdts. 1903, pp. 245, 246; amended March 4, 1907, Stats, and Amdts. 1907, p. 99, Kerr's Stats, and Amdts. 1906-7, p. 413. In efleet immediately. §465a. WHAT MOTIVE POWER MAY BE USED. AUTHORITY MUST BE OBTAINED. Every person or corporation now or hereafter authorized to operate a railroad by steam motive power, is also authorized to use electricity ' compressed air, or both, either with or without such steam, for the purpose of propelling cars or trains on such railroad or upon any portion thereof. In incorporated cities, towns, or cities and counties having more than five thousand inhabitants, authority must be obtained from the legislative authority thereof. History: Enacted by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1. p. 368, held unconstitutional, see his- tory, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 574. A codification of § 1 Act March 23, 1893, Stats, and Amdts. 1893, p. 208. §466. MAP AND PROFILE TO BE FILED. 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 thereof, and the boundaries of the several counties through which the road may run, and file the same in the 240 Tit.III,ch.II.] CHANGE OF LINE— FORFEITURE. §§ 457^ 458 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 com- pany, and copies of the same, so certified and filed, be kept in the office of the secretary of the corporation, subject to examination by all parties interested. Hlstorj-s Enacted March 21, 1872, founded upon § 43 Act Maj- 20, 1861, Stats. 1861, pp. 623-624. §467. MAY CHANGE LINE OF ROAD. If. at any time after the location of the line of the railroad and the filing of the maps and profiles thereof, as provided in the pre- ceding section, it appears that the location can be improved, the directors may, as provided in subdivision seven, section four hundred and sixty-five, 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 loca- tion was acquired, to acquire and take possession of such new line, and must sell or relinquish the lands owned by them for the original location, within five years after such change. [How new location to be run.] No new location, as herein provided, nuist be so run as to avoid any points named in their articles of incorporation. History: Enacted March 21, 1872, founded upon § IS Act May 20, 1861, Stats. 1861, p. 616. §468. FORFEITURE OF FRANCHISE. [FAILURE TO OPERATE, REVERTER.] Every railroad corporation must, within two years after filing its original articles of incorporation, begin the construction of its road, and must every year thereafter complete and put in full operation at 241 §468 CIVIL CODE. [Div.I,Pt.IV. 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 extend its road beyond the point then completed is forfeited. [When completed must be operated — Forfeiture of right to operate.] After the completion of any railroad, or any part thereof, capable of being operated, its owner must operate it, and upon his failure to keep it, or any part there- of, in full operation for the period of six months, his right to operate it in whole or in part, as the case may be, is forfeited, and the lands occupied for the purposes of the road, so far as the same is not operated, revert to the orig- inal owners or their successors in interest. A ra'lroad is in full operation when one passenger train, or one mixed train, is run over it once a day in each direction and a suffi- cient number of freight trains to accommodate the traffic on the road. If a railroad is wholly constructed at an eleva- tion of five thousand feet or more above the level of the sea, its owner is not required to maintain and operate it, nor to run passenger or other trains thereon, between the fifteenth of October of any year and the fifteenth of May of the year following. [Exception.] This section must not be construed to re- quire the operation of a road when prevented by the act of God, nor when the operation of the road, together with its branch and trunk lines, does not yield income sufificient to defray the expenses of maintaining and operating it in connection with its branch and trunk lines. The railroad commissioners have the power to examine and determine whether a railroad, together with its branch and trunk lines, yields income sufificient to operate the same. History: Enacted March 21, 1872, founded upon § 54 Act May 20, 1861, Stats. 1861, p. 626, as amended Act April 1. 1870, Stats. 1869-70, p. 578; amended by Code Commission, Act March 21, 1901, Stats, and Amdts. 1900-1, p. 368, held unconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 574. 242 Tit. ITT, ch. IT.] CROSSINGS AND INTERSECTIONS. §§469-472 §469. CROSSINGS AND INTERSECTIONS. CON- DEMNATION. Whenever the track of one railroad inter- sects or crosses the track of another railroad, whether the same be a street railroad, wholly within the limits of a city or town, or other railroad, the rails of either or each road must 1)6 so cut and adjusted as to permit the passage of the cars on each road with as little obstruction as possible; and, in case the persons or corporations owning the railroads can- not agree as to the compensation to be made for cutting and adjusting the rails, the condemnation of the right of way over the one for the use of the other road may be had in proceedings under title seven, part three, Code of Civil Procedure, and the damages assessed and the right of way granted as in other cases. History: Enacted March 21. 1S72, founded upon § 2 Act May 6, 1862, Stats. 1862, p. 498. §470. NOT TO USESTREETS, ALLEYS, OR WATER, IN CITIES OR TOWNS, EXCEPT BY A TWO- THIRD[S] VOTE OF THE CITY OR TOWN AUTHOR- ITIES. No railroad corporation must use any street, alley, or highway, or any of the land or water, within any incor- porated cit}' or town, unless the right to so use the same is granted by a two-third[s] vote of the town or city authority from which the right must emanate. History: Enacted March 21, 1ST2. §47L CONVEYANCE OF PASSENGERS WITHIN CITY LIMITS [repealed]. History: Enacted March 21, 1872, founded upon §21 Act 1861, Stats. 1861, p. 618; amended April 1, 1876, Code Amdts. 1875-6, p. 76; repealed April 1, 1878, Code Amdts. 1877-8, p. SI. §472. WHEN CROSSING RAILROADS OR HIGH- WAYS, HOW OTHER LANDS ARE ACQUIRED. When- ever the track of such railroad crosses a railroad or iiigh- 243 §§473 CIVIL CODE. [Div.I.Pt.IV. way, such railroad or highway may be carried under, over, or on a level with the track, as may be most expedient; and in cases where an embankment or cutting necessitates a change in the line of such railroad or highway, the cor- poration may take such additional lands and material as are necessary for the construction of such road or highway on such new line. If such other necessary lands cannot be had otherwise, they may be condemned as provided in title seven, part three, Code of Civil Procedure; and when com- pensation is made therefor, the same becomes the property of the corporation. History: Enacted March 21, 1S72, founded upon § 19 Act May 20, 1861, Stats. 1861, pp. 616-617. § 473. CONSOLIDATION OF RAILROAD CORPORA- TION. PROCEEDINGS NECESSARY THERETO. Any railroad corporation incorporated under the laws of this state may consolidate with one or more railroad corporations incorporated under the laws of this state, or under the laws of any other state or territory of the United- States, its capital stock, properties, roads, equipments, adjuncts, franchises, claims, demands, contracts, agreements, obligations, debts, liabilities and assets of every kind and description, upon such terms and in such manner as may be agreed upon by their respective boards or directors; provided, No such consolidation shall take effect until the same shall have been ratified and confirmed in writing by stock- holders pi the respective corporations representing three- fourths of the subscribed capital stock of their respective corporations. In case of such consolidation "Articles of incorporation and consolidation" must be pre- pared, setting forth: 1. The name of the new corporation; 2. The purpose for which it is formed; 3. The place where its principal business is to be trans- acted; 244 Tit.III,ch.II.] CONSOLIDATION', PROCEEDINGS. §473 4. The term for which it is to exist, which shall not exceed fifty years; 5. The number of its directors (which shall not be less than five, nor more than thirteen) and the names and resi- dences of the persons appointed to act as such until their successors are elected and qualified; 6. The amount of its capital stock (which shall not exceed the amount actually required for the purposes of the new corporation, as estimated by competent engineers), and the number of shares into which'it is divided; 7. The amount of stock actually subscribed, and by whom; 8. The termini of its road or roads and branches; 9. The estimated length of its road or roads and branches; 10. The names of the constituent corporations, and the terms and conditions of consolidation in full. [Signing articles; method of — Memorandum of ratification.] Said articles of incorporation and consolidation must be signed and countersigned by the presidents and secretaries of the several constituent corporations and sealed with their corporate seals. There must be annexed thereto memoranda of the ratification and confirmation thereof by the stock- holders of each constituent corporation, which must be respectively signed by stockholders representing at least three-fourths of the capital stock of their respective cor- porations. When completed as aforesaid said Articles must be filed in the office of the county clerk of the county in which the original articles of incorporation of either of the consolidating corporations are filed, and a copy of the articles of incorporation and consolidation certified by such county clerk must be filed in the ofifice of the secre- tary of state, and thereupon the constituent corporations named therein must be deemed and held to have become extinct in all courts and places, and said new corporation must be deemed and held in all courts and places to have succeeded to all their several capital stocks, properties, roads, equipments, adjuncts, franchises, claims, demands, 245 S473a CTVIL CODK. [Div.I.Pt.lV. contracts, agreements, assets, choses and rights in action of every kind and description, both at law and in equity, and to be entitled to possess, enjoy, and enforce the same and every thereof, as fully and completely as either and every of its constituents might have done had no consolidation taken place. [New corporation subrogated to constituents.] Said con- solidated or new corporation must also, in all courts and places, be deemed and held to have become subrogated to its several constrtuents and each thereof, in respect to all their contracts and agreements with other parties, and all their debts, obligations, and liabilities, of every kind and nature, to any persons, corporations, or bodies politic, whomsoever, or whatsoever, and said new corporation must sue and be sued in its own name in any and every case in which any or either of its constituents might hav-e sued or might have ,been sued at law or in equity had no such consolidation been made. Nothing in this section contained shall be construed to impair the obligation of any contract to which any of such constituents were parties at the date of such consolidation. All such contracts may be enforced by action or suit, as the case may be, against the con- solidated corporation, and satisfaction obtained out of the property which, at the date of the consolidation, belonged to the constituent which was a party to the contract in action or suit, as well as out of any other property belonging to the consolidated corporation. History: Enacted March 21, 1872, founded upon § 40 Act May 20, 1861, Stats. 1861, pp. 622-623; amended March 16, 1901, be- came a law, under constitutional provision, without Governor's approval, Stats, and Amdts. 1900-1, p. 327. In effect March 16, 1901. §473a. RIGHT TO LEASE OR USE ANOTHER ROAD IN COMMON. Railroad corporations doing busi- ness in this state and organized under any law of this state Tit.III,ch.II.] GRANT-OF STATE LANDS. §§474.476 or the United States, or of any state or territory thereof, have power to enter into contracts with one another, where- by the one may lease of the other the whole or any part of its railroad, or ma}' acquire of the other the right to use, in common with it, the whole or any part of its railroad. Historj-: Added by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. .369; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 575. A codification of § 2 Act April 2, 18S0, Stats. 1880, p. 21. §474. STATE LANDS GRANTED FOR USE OF COR- PORATIONS. There is granted to every railroad corpora- tion the right of way for the location, construction, and maintenance of their necessary works, and for every neces sary 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 ad- juncts, or for the protection thereof, not in any case to ex- ceed two hundred feet in width. History: Enacted Marcli 21, 1872; this and following- sections of chapter founded upon §§ 20-22 Act May 20, 1861, Stats. 1861, p. 617. §475. GRANT NOT TO EMBRACE TOWN LOTS. The grants mentioned in the preceding section do not apply to public lands of the state within the corporate limits of towns and cities, or within three miles thereof. His : Enacted March 21, 1S72; thi.«, the preceding section, and following: sections of chapter founded upon §§ 20-22 Act May 20. 1S01. Stats. Ifiea, p. 617. §476. WOOD, STONE, AND EARTH MAY BE TAK- EN FROM STATE LANDS. The right to take from any of the lands belonging to the state, adjacent to the works of the corporation, all materials, such as wood, stone, and 247 §§477,478 CIVIL CODE. [Div.I.PtllV. earth, naturally appurtenant thereto, which may be neces- sary and convenient for the original construction of its works and adjuncts, is granted to such corporations. History: Enacted March 21, 1872; this and foHowing- sections of chapter founded upon §§ 20-22 Act May 20, 1861, Stats. 1861, p. 617. §477. LANDS TO REVERT TO STATE, WHEN. If any corporation receiving state lands or appurtenances there- under is dissolved, ceases to exist, is discontintied. or the route or line of its works is so changed as not to cover or cross the lands selected, or the use of the lands selected is abandoned, such selected lands revert, and the title thereto is reinvested in the state or its grantees, free from all such uses. Hi.story: Enacted March 21, 1S72; this and following section of chapter founded upon §§ 20-22 Act May 20, 1861, Stats. 1861, p. 617. §478. SELECTIONS MADE, HOW PROVED AND CERTIFIED TO. When any selection of the right of way, or land for an adjunct to the works of a railroad corpora- tion, is made by any corporation, the secretary thereof must transmit to the surveyor-general, controller of state, and recorder of the county in which the selected lands are situate, a plat of the lands so selected, giving the extent thereof and uses for which the same is claimed or desired, duly verified to be correct; and, if approved, the surveyor- general must so indorse the plat, and issue to the corpora- tion a permit to use the same, unless, on petition properly presented to the court, a review is had and such use pro- hibited. Hi.story: Enacted March 21, 1872; this and preceding four sections founded on § 20-22 Act May 20, 1861, Stats. 1861, p. 617. 248 _J Tit.IIT.ch.IIL] CONDUCT OF BUSINESS. §479 CHAPTER III. BUSINESS, HOW CONDUCTED. § 479. Checks to be affixed to all baggage. [Damages.] § 480. Annual report to be verified. Form of report. § 4S1. Duties of corporation. [Time of running to be fixed by public notice. Sufficient accommodations to be fur- nished.] § 482. Corporation to pay damages for refusal. § 483. Furnish room inside passenger cars, and be responsible for damages occurring on freight and other cars. § 484. Corporation to post printed regulations, and not re- sponsible for damages in violation of rules. § 485. Maintenance of fences along railroads. To pay damages. Not liable in certain cases. Corporations may recover damages, when. § 4S.Ta. Right to private crossing over railroad tracks. § 486. Regulations of trains. Penalty. § 487. Passenger refusing to pay fare. § 488. Officers to wear badge. § 489. Rates of charges established by railroad commissioners. Notice served. § 490. Railroad tickets entitle purchaser to what. Penalty for failure to provide such tickets. §491. Quality of rail to be used. § 492. Elevated or underground railroads. Who may grant franchise. § 493. To what above section applicable. § 494. Railroad corporations may sell property and franchises to other railroads. §479. CHECKS TO BE AFFIXED 'TO ALL BAG- GAGE. [DAIVIAGES.] A check must be affixed to every ])ackage or parcel of baggage when taken lor transporta- tion by any agent or employee of such railroad corporation, and a duplicate thereof given to the passenger or person delivering the same in his behalf; and if such check is re- fused on demand, the railroad corporation must pay to such passenger the sum of twenty dollars, to be recovered in an 249 §480 CIVIL CODE. [Div.I.Pt.IV. action for damages; and no fare or toll must be collected or received from such passenger, and if such passenger has paid his fare, the same must be returned by the con- ductor 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 recover the value thereof from the corporation. History: Enacted March 21, 1S72, founded upon § 42 Act May 20, 1861, Stats. ]S61, p. 623. §480. ANNUAL REPORT TO BE VERIFIED. FORM OF REPORT. Every railroad corporation must make an annual report to the secretary of state, or other officer designated by law, of its operations for each year, ending on the thirty-first day of December, verified by the oaths of the president or acting superintendent of operations, the secretary and treasurer of such corporation, and h\e it in the office of the secretary of state, or such other desig- nated officer, by the twentieth day of February, which must state: 1. The capital stock, and the amount thereof actually paid in; ' 2. The amount expended for the purchase of lands for the construction of the road, for buildings, and for engines and cars, respectively; 3. The amount and nature of its indebtedness, and the amount due the corporation; 4. The amount received from the transportation of passen- gers, property, mails, and express matter, and from other sources; 5. The amount of freight, specifying the quantity in tons; 6. The amount paid for repairs of engines, cars, buildings, and other expenses, in gross, showing the current expenses of running such road; 250 Tit. 1 11, ch. I II.] DUTIES OF CORPORATION. §481 7. The number and amount of dividends, and when paid; 8. The number of engine-houses and shops, of engines and cars, and their character. History: Enacted March 21, 18 72, founded upon § 41 Act May 20, 1861, Stats. 1861, p. 624. §481. DUTIES OF CORPORATION. [TIME OF RUNNING TO BE FIXED BY PUBLIC NOTICE. SUF- FICIENT ACCOMMODATIONS TO BE FURNISHED.] Every such corporation must start and run its cars, for tlie transportation of persons and property, at such regular times afe it shall fix bj^ public notice, and must furnish sufficient accommodations for the transportation of all such passen- gers and property as, within a reasonable time previous there- to, offer or are offered for transportation, at the place of starting, at the junction of other railroads, and at siding and stopping-places established for receiving and discharging way passengers and freight; and must take, transport, and discharge such passengers and property at, from, and to such places, on the due payment of tolls, freight, or tare therefor. Hi.story: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. .'569, held unconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 575. Section founded upon Act May 20, 1861, § 45 (Stats. 1861, p. 625). The language of the section as it now stands amended is almost a verbatim copy of that section of the Act of 186J which is construed in Contra Costa C. M. R. Co. vs. Moss, 2o Cal. 323, 328. North Carolina statute (N. C. Code § 1963) is almost word for word tlie same as this, section^ and is construed in Purcell vs. Riclimond & D. R. Co., 108 N. C. 414, 12 S. E. Rep. 954, 12 L. R. A. 113. Oklalioma statute (§ 1036) is identical with this section, and is construed in Chaddick vs. Lindsay, 5 Okla. 616, 49 Pac. Rep. 940. 251 §§482-484 CIVIL CODE. [Div.I.Pt.IV. §482. CORPORATION TO PAY DAMAGES FOR RE- FUSAL. 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. History: Enacted March 21, 1S72, founded upon § 46 Act May 20, 1S61, Stats. 1861, p. 624. §483. FURNISH ROOM INSIDE PASSENGER-CARS, AND BE RESPONSIBLE FOR DAMAGES OCCURRING ON FREIGHT AND OTHER CARS. Every railroad cor- poration must furnish, on the inside of the passenger-cars, sufificient room and accommodations for all passengers to whom tickets are sold for any one trip and for all persons presenting tickets entitling them to travel thereon; and when fare is taken for transporting passengers on any baggage, wood, gravel, or freight car, the same care must be taken* and the same responsibility is assumed by the corporation as for passengers on passenger-cars. HLstory: Enacted March 21, 1872, founded upon §§4.5, 46 Act May 20, 1861, Stats. 1861, p. 624. §484. CORPORATIONS TO POST PRINTED REG- ULATIONS, AND NOT RESPONSIBLE FOR DAM- AGES IN VIOLATION OF RULES. Every railroad cor- poration must have printed and conspicuously posted on the inside of its passenger-cars its rules and regulations regard- ing fare and conduct of its passengers; and in case any pas- senger is injured on or from the platform of a car, or on any baggage, wood, gravel, or freight car, in violation of such printed regulations, or in violation of positive verbal instructions or injunctions given to such passenger in per- son by any officer of the train, the corporation is not respon- 252 Tit.III,ch.III.] MAINTENANCE OF FENCES. §§ 485, 485a sible for damages for such injuries, unless the corporation failed to comply with the provisions of the preceding section. History: Enacted March 21, 1872, founded upon § 48 Act May 20, 1861, Stats. 1861, p. 625. §485. MAINTENANCE OF FENCES ALONG RAIL- ROAD. TO PAY DAMAGES. NOT LIABLE IN CER- TAIN CASES. CORPORATION MAY RECOVER DAM- AGES, WHEN. Railroad corporations must make and maintain a good and sufficient fence on 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 cat- tle or the same runs through or upon public land they must pay to the owner of such cattle or other domestic animals a fair market price for the same, unless it occurred through the neglect or fault of the owner of the animal so killed or maimed. Railroad corporations paying to the owner of the land through or along w-hich 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 exonerat- ed from all claims for damages arising 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 accrue to such corporation from such animals being upon their rail- road track, resulting from the non-construction of such fence, unless it is shown that such loss or damage occurred through the negligence or fault of the corporation, its of- ficers, agents, or employees. History: Enacted March 21, 1872, founded upon § 40 Act May 20, 1861, Stats. 1861, p. 623; amended June 7, 1915, Stats, and Amdts. 1915. p. 1281. In effeot August S, 1915. §485a. RIGHT TO PRIVATE CROSSINGS OVER RAILROAD TRACKS. The owner or owners of any lands along or through which any railroad is constructed or main- 253 §486 CIVIL CODE. ' [Div.l,Pt.lV. tained, shall have the right to such farm or private crossings over such railroad and railroad right of way as may be reason- ably necessary or convenient for ingress to or egress from such lands, or in order to connect such lands with other adjacent lands of such owner or owners; and the owner or operator of such railroad shall construct and at all times maintain such farm or private crossing in a good, safe and passable condition; provided, that the railroad commission shall have the authority to determine the necessity for such crossing and the place, manner and conditions under which said crossing shall be constructed and maintained, and shall fix and assess the cost and expense thereof. History: Enactment approved May 29, 1915, Stats, and Amdts. 1915, p. 920. In effect August 8, 1915. §486. REGULATIONS OF TRAINS. PENALTY. A bell, of at least twenty pounds weight, must be placed on each locomotive engine, and be rung at a distance of at least eighty rods from the place where the railroad crosses any street, road, or highway, and be kept ringing until it has crossed such street, road, or highway; or a steam whis- tle must be attached, and be sounded, except in cities, at the like distance, and be kept sounding at intervals until it has crossed the same, under a penalty of one hundred dol- lars for every neglect, to be paid by the corporation operat- ing the railroad, which may be recovered in an action pros- ecuted by the district attorney of the proper county, for the use of the state. [Liability in damages.] The corporation is also liable for all damages sustained by any person, and caused by its lo- comotives, train, or cars, when the provisions of this sec- tion are not complied with. History: Enacted March 21, 1872^ founded vipon § 41 Act May 20, 1861, Stats. 1861, p. 623. 254 Tit.III.ch.III.] REFUSING TO PAY FARE. §§487-489 §487. PASSENGER REFUSING TO PAY FARE. If any passenger refuses to pay his fare, or to exhibit or sur- render his ticket, when reasonably requested so to do, the conductor and employees of the corporation may put him and his baggage out of the cars, using no unnecessary force, at any usual stopping place, or near any dwelling-liouse, on stopping the train. History: Enacted March 21, 1872, founded upon § 49 Act May 20, 1861. Stats. 1861, p. 625. §488. OFFICERS TO WEAR BADGE. Every con- ductor, baggage-master, engineer, brakeman, or other em- ployee of any railroad corporation, employed on a passen- ger-train or at stations for passengers, must wear upon his liat or cap, or in some conspicuous place on the breast of his coat, a badge, indicating his office or station, and the initial letters of the name of the corporation by which he is employed. No collector or conductor, without such badge, is authorized to demand or to receive from any passenger any fare, toll, or ticket, or exercise any of the powers of his office or station; and no other officer or employee, without such badge, has any authority to meddle or interfere with any passenger or property. HLslory: Enacted March 21, 1872, founded upon § 50 Act May 20, 1861, Stats. 1861, p. 625. §489. RATE OF CHARGES ESTABLISHED BY RAILROAD COMMISSIONERS. NOTICE SERVED. Whenever the board of railroad commissioners, in the dis- charge of its duties, establishes or adopts rates of charges for the transportation of passengers and freight, pursuant to the provisions of the constitution, said board must serve a printed schedule of such rates, and of any changes that may be made in such rates, upon the person, copartnershi]). company, or corporation afTected thereby; and 255 §490 CIVIL CODE. [Div.I,Pt.IV. [Copies of rates to be posted, where and by whom.] Upon such service it is the duty of such person, copartnership, company, or corporation to immediately cause copies of the same to be posted in all its offices, station-houses, ware- houses, and landing offices affected by such rates, or change of rates, in such manner as to be accessible to public inspec- tion during usual business hours. Said board [of railroad commissioners] must also make such further publication thereof as it deems proper and nec- essary for the public good. If the party to be served is a corporation, such service may be made upon the president, vice-president, secretary, or managing agent thereof, and if a copartnership, upon any partner thereof. [Rates go into effect, when.] The rates of charges estab- lished or adopted by said board, pursuant to the constitu- tion and the laws of this state, must go into force and efifect on the twentieth day after service of such schedule of rates, or changes in rates, upon the person, copartnership, company, or corporation affected thereby. History: Enacted March 21, 1S72, founded upon § 51 Act May 20, 1861, Stats. 1861, p. 625; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 370, held unconsti- tutional, see history, § 4 ante; amendment re-enacted March 21, 1905, p. 575. §490. RAILROAD TICKETS ENTITLE PURCHASER TO WHAT. PENALTY FOR FAILURE TO PROVIDE SUCH TICKETS. Every railroad corporation must provide, and on being tendered the fare therefor fixed, as provided in the preceding section, furnish to every person desiring a pas- sage on their passenger-cars a ticket, which entitles the pur- chaser to a ride, and to the accommodations provided on their cars, from the depot or station where the same is pur- chased to any other depot or station on the line of their road. Every such ticket entitles the holder thereof to ride on their passenger-cars to the station or depot of destination, 256 Tit.III,ch.III.] QUALITY OF RAILS. §§ 491, 492 or an3^ intermediate station, and froiTi any intermediate sta- tion 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 pas- sage which the same calls for when sold, must pay to the per- son so refused all actual damages caused thereby, with rea- sonable counsel fees expended in recovering same. History: Enacted March 21, 1S72; amended March 23, 1901, Stats, and Amdts. 1900-1, p. 600. §491, QUALITY OF RAIL TO BE USED. All rail- roads, other than street railroads and those used exclusively for carrying freight or for mining purposes, built by corpor- ations organized under this chapter, must be constructed of the best quality of iron or steel rail, known as T or H rail, or other pattern of equal utility. History: Enacted March 21, 1872, founded upon § 57 Act May 20, 1861, Stats. 1861, p. 627; amended March 30, 1874, Code Amdts. 1873-4, p. 212. § 492. ELEVATED OR UNDERGROUND RAILROADS. WHO MAY GRANT FRANCHISE. The legislative or other body to whom is intrusted the government of the county, city and county, city, or town, under such regula- tions, restrictions, and limitations, and upon such terms and payment of license tax as the county, city and county, city, or town authority may provide, may grant franchises for the construction of elevated or underground railroad tracks over, across, or under the streets and public highways of any such county, city and count}', city, or town, for the term not exceeding fifty years; [Petition — By whom signed.] Provided, that before grant- ing such franchise there shall be presented to such legisla- » 257 §§493,494 CIVIL CODE. [Div.I,Pt.IV. tive or other body a petition signed by the owners of a ma- jority of the landed property, other than public property, on the line of said elevated portion applied for. History: Enacted March 27, 1895, Stats, and Amdts. 1895, p. 241; repealed by Code Commissfon, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 370, held unconstitutional, see history, § 4 ante. §493. TO WHAT ABOVE SECTION APPLIES. The provisions of section four hundred and ninety-two shall ap- ply to any railway corporation heretofore or hereafter in- corporated. History: Enacted March 27, 1895, Stats, and Amdts. 1895, p. 242; repealed by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 370, held unconstitutional, see history, § 4 ante; amended March 21, 1905, Stats, and Amdts. 1905, p. 576. §494. RAILROAD CORPORATIONS MAY SELL PROPERTY AND FRANCHISES TO OTHER RAIL- ROADS. Any railroad corporation, person or persons, firm or corporation, owning any railroad in this state, may sell, convey, and transfer its property and franchises, or any part thereof, to any other railroad corporation, whether organ- ized under the laws of this state or of any other state or territory, or under any act of congress; and any other such railroad corporation receiving such conveyance may hold and operate such railroad franchises and property within this state, build and operate extensions and branches thereof, and thereunto exercise the right of eminent domain, and do any other business in connection therewith, as fully and effec- tually to all intents and purposes as if such corporation were organized under the laws of this state; [Terms and conditions of sale.] Provided, that before such sale, conveyance, or transfer shall become operative, an agreement in writing must be executed by the parties there- to, containing the terms and conditions of the purchase and 258 Tit. Ill, ch. III.] SELLING TO OTHER RAILROAD. §494 sale, and its execution must be authorized by the board of directors and ratified by three fourths of the stockholders of each of the railroad companies that are parties to such con- veyance and transfer, and said agreement or conveyance shall be recorded in each county through which said road or roads pass in this state; and [Not relieved from debts incurred.] Provided further, that no sale, conveyances, or transfer under this act shall relieve the franchise or property sold, conveyed, or transferred, from the liability of the grantor contracted or incurred in the op- eration, use, or enjoyment of such franchise or any of its privileges; [Competing roads shall not be purchased.] Provided, that this section shall not authorize any corporation to purchase any railroad property operated in competition with it; [Fares and toll shall not be increased. When lowered cannnot be raised.] And provided further, that any or all established rates for fares and tolls for carrying passengers or freight between any points upon any railroad purchased under the provisions of this act, shall not be increased with- out the consent of the governmental authority in which is vested by law the power to regulate fares and freights; and provided further, that whenever a railroad corporation, which has purchased any line of road under this act, shall for the purposes of competing with any other common carrier lower its rates for transportation of passengers or freight from one point to another upon such line purchased, such reduced rates shall not be again raised or increased from such standard without the consent of the governmental authority in which shall be vested the power to regulate fares and freights; and [Penalty for violation — Duty of attorney-general.] Pro- vided further, that for every violation of the provisions of this act on the part of directors or governing officers of said corporation, the state shall be entitled to recover from such offending railroad company the sum of ten thousand dollars. It is hereby declared to be the duty of the attorney-general 259 §494 . CIVIL, CODE. [Div.I.Pt.IV. of the state, in the event of any such violation, to demand and collect from such company the said penalty; and he is hereby authorized and empowered to prosecute all the nec- essary actions in the name of the people of the state of Cali- fornia against such company in the courts of the state. All money so collected shall be paid into the general fund of this state. HLstory: Enacted Feb. 27, 1903, Stat.s. and Amdts. 1903, p. 50. Prior legislation covering the same ground, with same num- ber to section. In almost the same language, was enacted March 22, 1899; the latter enactment made no reference to the former; to remedy this anomalous condition the last session of the legislature passed an act repealing the former of these two sections 494 In the following terms: "Section four hundred and ninety-four of the Civil Code, as approved March 22, 1899, is hereby repealed; provided, that nothing in this act contained shall be deemed to repeal any of the provisions of section 494 of said code as approved Februry 27, 1903." See Stats, and Amdts. 1905, p. 576. 260 Tit. IV.] STREET RAILWAYS— TRACKS. §497 TITLE IV. STREET RAILROAD CORPORATIONS. § 497. Railway tracks. How authority is obtained to lay. Pro- pelling power. Limitations and restrictions. § 498. Limitations and restrictions. Manner of laying tracks. § 499. Two lines street railway may use same track. § 499[a].City trustees may permit two lines of street railway may use same track. § 500. Crossing tracks. Obstruction. § 501. Rates of fare on street-cars. [Manner of construction of street-cars.] Penaltj\ § 502. Time allowed for commencing and completing work. Penalty. Extension of time. § 503. May make further regulations and rules. § 504. Penalty for overcharging. § 505. Street railroads must furnish tickets. Penalty. § 506. Proof of agency. § 507. Reserved rights. § 508. License to be paid to city or town. § 509. Track for grading purposes. [Time may remain.] § 510. Law governing street railroads. § 511. Title applicable to natural persons alike with corpora- tions. §497. RAILWAY TRACKS. HOW AUTHORITY IS OBTAINED TO LAY. PROPELLING POWER. LIM- ITATIONS AND RESTRICTIONS. Authority to lay rail- road tracks through the streets and public highways of any incorporated city, city and county, or town, may be ob- tained for a term of years not exceeding fifty, from the trustees, council, or other body to whom is intrusted the government of the city, city and county, or town, under such restrictions and limitations, and upon such terms and pay- ment of license tax, as the city, city and county, or town au- thority' may provide. [Motive power.] In no case must permission be granted to propel cars upon such tracks otherwise than by electric- 261 §498 CIVIL CODE. [Div.I,Pt.IV. ity, horses, mules, or by wire ropes running under the streets and moved by stationary engines, unless for special reasons in this title hereinafter mentioned; provided, however, that such board or body in granting the right, or at any time after the same is granted, to use electricity or any other of said modes, shall have power to impose such terms, restric- tions, 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. History: Enacted March 21, 1S72, founded upon § 1 Act March 29, 1870, Stats. 1869-70, p. 481; amended March 3, 1876, Code Amdts. 1875-6, p. 76; Feb. 25, 1891, Stats, and Amdts. 1891, p. 12; amended by Code Commission, Act Marcli 16, 1901, Stats, and Amdts. 1900-1, p. 370, held unconstitutional, see history, § 4 ante. §498. LIMITATIONS AND RESTRICTIONS. MAN- NER OF LAYING TRACKS. The city or town authorities, in granting the right of way to street-railroad corporations, in addition to the restrictions which they are authorized to impose, must require a strict compliance with the following conditions, except in the cases of prismoidal or other ele- vated railways. In such cases, said railway shall be required to be constructed in such a manner as will present the least obstruction to the freedom of the streets on which it may be erected, when allowed by the granting power: 1. To construct their tracks on thqse portions of streets designated in the ordinance granting the right, which must be as nearly as possible in the middle thereof. 2. To plank, pave, or macadamize the entire length of the street, used by their track, between the rails, and for two 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. 262 Tit. IV.] LIMITATIONS, ETC., ON TRACKS. §499 3. That the tracks must not be more than five feet wide within the rails, and must have a space between them suf- ficient to allow the cars to pass each other freely. History: Enacted March 21, 1872; amended March 30, 1874. Code Amdts. 1873-4, p. 212; April 3, 1876, Code Amdts. 1875-6, p. 77; amended by Code Commission, Act Marcli 16, 1901, Stats, and Amdts. 1900-1, p. 371, held unconstitutional, see history, § 4 ante. Prisinoidal niiUvaj. — The exception as to "prismoidal and other elevated railways" was introduced by the amendment of 1876. A "prismoidal railway" is one having a prism-shaped single continuous rail, beam, or truss supported on posts or columns. The motor and cars run astride the beam, the motor being provided with grip-wheels to obtain the hold on the track requisite for draft. This is a species of single-rail type of railway, an improvement on the Djiboniti-monorail con- ceived and put in operation by M. Lartigue a century ago. There are several different systems or modifications of this railway. In the Cook System, the Barmen roads, and the Ro- manoff System in Russia, the motor and carriage are suspended in the air, running on an inverted rail. The idea has been most liighly developed and perfected in the United States, in what is known as the Cook Ss'stem, with the Behr System in England a close second. The latter system has been in operation in Ballyhunnion, Ireland, for several years, and a road of this kind has recently been completed from Manchester to Liver- pool — a distance of thirty-four miles — on vsrhich the regular running time is twenty minutes, — just one half the time of the swiftest train on the two-rail road. The improved monorail seems to have solved the problem of rapid, safe, and cheap transportation. But neither the Tunis road nor the Behr Sys- tem is, properly speaking, an elevated road, but a surface rail- way. In each the motors and cars are mounted on two-wheel trucks geared tandem fashion, running on a rail strung along the ground, with an inverted rail overhead. §499. TWO LINES OF STREET RAILWAY MAY USE SAME TRACK. The legislative body of any incor- porated city, city and county, or town, may permit two or more lines of street railway to use the same portion of the same street or the same tracks upon such terms as may be 263 §499 CIVIL CODE. [Div.I.Pt.IV. agreed upon by the companies operating such railways; but no permission shall be granted to one company to use the same tracks or portion of the sanie street for a distance of more than five consecutive blocks without the consent of the company occupying said portion of the street and then only upon payment of an equal portion of the cost of construc- tion of the tracks and appurtenances used by such railways jointly; [City may use.] Provided,' that any incorporated city, city and county, or town may ow-n and operate street railways within or without the municipal limits, and may occupy the same street or tracks occupied or used by any street railway company within its limits upon payment to such company of an equal portion of the estimated cost of construction, at the time of such occupation, of the tracks or appurtenances to be used jointly by said company and said city, city and county, or town. [Tracks of different gauge.] Where such portion of such street shall be occupied by a track or tracks of a different gauge from the track or tracks proposed to be constructed thereon by a line of street railway under a different manage- ment, such last-mentioned line of street railway may never- theless construct its track or tracks, subject to the limitation before prescribed, over the same ground as may be occupied by such prior track or tracks; provided, the same can be so constructed as not to interfere with the operation of such prior track or tracks beyond such necessary interference therewith as shall be incident to such construction with rea- sonable skill, care and diligence. History: Enacted March 21, 1S72; amended February 25, 1891, Stats, and Amdts. 1891, p. 13; March 21, 1907, Stats, and Amdts. 1907, p. 837, Kerr's Stats, and Amdts. 1906-7, p. 415; February 15„1911, p. 60. This section was again amended on April 24, 1911, w^hich amendment is given below as §499[a]. 264 Tit.IV.] TWO LINES MAT USE ONE TRACK. § 499[a] §499[a]. CITY TRUSTEES MAY PERMIT TWO LINES OF STREET RAILWAY MAY USE SAME TRACK. The legislative body of any incorporated city, city and county, or town, may permit two or more lines of street railway to use the same portion of the same street or the same tracks upon such terms as maj^ be agreed' upon by the companies operating such railways; but no permission shall be granted to one company to use the same tracks or por- tions of the same street for a distance of more than five con- secutive blocks without the consent of the person or com- pany occupying said portion of the street and then only upon payment of an equal portion of the cost of construction of the tracks and appurtenances used by such railways jointly; provided, that any incorporated city, city and county, or town may own and operate street railways within or with- out the municipal limits, and maj^ occupy the same street or tracks occupied or used by anj^ street railway within its limits for any number of blocks upon payment to the owner thereof of an equal portion of the estimated cost of con- struction, at the time of such occupation, of such tracks or appurtenances as such city, city and countj'^, or town may elect to use jointly' with said street railway. Where such portion of such street shall be occupied by a track or tracks of a different gauge from the track or tracks proposed to be constructed thereon by a line of street railway under a dif- ferent management, such last-mentioned line of street rail- way may nevertheless construct its track or tracks, subject to the limitation before prescribed, over the same ground as may be occupied by such prior track or tracks; provided the same can be so constructed as not to interfere with the operation of such prior track or tracks bej'ond such neces- sary interference therewith as shall be incident to such con- struction with reasonable skill, care and diligence. History: Enacted March 21, 1872; amended February 25, 1891, Stats, and Amdts. 1891, p. 13; March 21, 1907, Stats, and Amdts. 1907. p. 837, Kerr's Stats, and Amdts. 1906-7, p. 415; February 15 and April 24. J911, pp. 60, 1101. 265 §§500-502 CIVIL CODE. [Div.I.Pt.IV. §500. CROSSING TRACKS. OBSTRUCTIONS. Any proposed railroad track may be permitted to cross any track already constructed, the crossing being made as provided in chapter two, title three, of this part. In laying down the track and preparing therefor, not more than one block must be obstructed at any one time, nor for a longer period than ten working days. History: Enacted March 21, 1S7 2. § 501. RATES OF FARE ON STREET CARS. [MAN- NER OF CONSTRUCTION OF STREET CARS.] PEN- ALTY. The rates of fare on the cars must not exceed ten cents for one fare for any distance under three miles, and in municipal corporations of the first class must not exceed five cents for each passenger per trip of any distance in one direction either going or coming, along any part of the whole length of the road or its connections. The cars must be of the most approved construction for the comfort and con- venience of passengers, and provided with brakes to stop the same, when required. [Fine for violation.] A violation of the provisions of this section subjects the corporation to a fine of one hundred dollars for each offense. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p, 371, held unconstitutional, see history, § 4 ante; amendment re-enacted March 16, 1903, Stats, and Amdts, 1903, pp. 172-173. § 502. TIME ALLOWED FOR COMMENCING AND COMPLETING WORK. PENALTY. EXTENSION OF TIME. Work to construct the railroad must be commenced in good faith within not more than one year from the date of the taking effect of the ordinance granting the right of way, and said work must be completed within not more than three years after the taking effect of such ordinance; pro- vided, that the governing body of such municipal corpora- 266 Tit. IV.] REGULATIONS AND RULES. §503 tion at the time of granting said right of way shall have the power to fix the time for either the commencing or comple- tion, or both, of said work; not, however, to a time less than six months for commencing, and not less than eighteen months for completing the same. [Failure to comply — Forfeiture.] A failure to comply with either of the foregoing provisions of this section, or with either of the provisions of the ordinance granting said right of way,' works a forfeiture of the right of way, and also of the franchise, unless the uncompleted portion is abandoned by the person or corporation to whom said right of way is granted, with the consent of the authorities grant- ing the right of way, such abandonment and consent to be in writing. [Extension — Who may grant — When and for w^hat term.] The authority granting the right of way shall have the pow- er to grant ^n extension of time for the completion of said work, if it appear that the work has been commenced within the time fixed, and prosecuted in good faith; but no exten- sion of time shall be granted for the commencement of said work, and shall not be granted for more, than one year for the completion of the same. All extensions of time shall be in writing, and made a matter of record in the municipal- ity. Provided further, that this act shall not in any way afiect any franchise or right of way granted before its pas- sage. History: Enacted March 21, 1S72; amended Feb. 25, 1895, Stats, and Amdts. 1895, p. 17. In effect Feb. 25, 1895. §503. MAY MAKE FURTHER REGULATIONS AND RULES. Cities and towns in or through which street-rail- roads run may make such further regulations for the govern- ment of such street-railroads as may be necessary to a full enjoyment of the franchise and the enforcement of the con- ditions provided herein. History: Enacted March 21, 1872, founded upon § 10 Act March 29, 1870, Stats. 1869-70, p. 483. 267 §504-506 CIVIL CODE. [Div.I.Pt.IV. §504. PENALTY FOR OVERCHARGING. Any cor- poration, or agent or employee thereof, demanding or charg- ing a greater sum of money for fare on the cars of such street railroad than that fixed, as provided in this title, for- feits to the person from whom such sum is received, or who is thus overcharged, the sum of two hundred dollars, to be re- covered in a civil action, in any justice's court ha\'ing juris- diction thereof, against the corporation. History: Enacted March 21, 1S72, founded upon § 1 Act April 14, 1863, Stats. 1863, p. 296; amended by Code Commission, Act ■ March 16, 1901, Stats, and Amdts. 1900-1, p. 371, held unconsti- tutional, see history, § 4 ante. § 505. STREET RAILROADS MUST FURNISH TICK- ETS. PENALTY. Every street-railroad corporation must provide, and, on request, furnish to all persons desiring a passage on its cars, any required quantity of passenger tick- ets or checks, each to be good for one ride. [Penalty for failure to comply.] Any corporation failing to i)rovide and furnish tickets or checks to any person desir- ing to purchase the same at not exceeding the rate herein- before described, shall forfeit to such person the sum of two hundred dollars, to be recovered as provided in the preced- ing section; provided, that the provisions of this section shall not apply to such street-railroad corporations as charge but five cents fare. History: Enacted March 21, 1872, founded upon § 1 Act April 14, 1863, Stats. 1863, p. 297; amended March 30, 1874, Code Amdts. 1873-4, p. 213; March 13, 1883, Stats, and Amdts. 1883, p. 84. lu force March 13, 1883. § 506. PROOF OF AGENCY. Upon the trial of an ac- tion for any of the sums forfeited, as provided in the two preceding sections, proof that the person demanding or re- ceiving the money as fare, or for the sale of the ticket or check, was at the time of making the demand or receiving 268 Tit.IV.] RESERVED RIGHTS— LICENSES. §§ 507, 508 the money, engaged in an office of the corporation, or vehicle belonging to the corporation, shall be prima facie evidence that such person was the agent, servant, or employee of the corporation, to receive the money, and give the ticket or check mentioned. History: Enacted March 21, 1872, founded upon § 3 Act April 14, 1863, Stats. 1863, p. 297; amended March 30, 1874. Code Amdts. 1873-4, p. 213. §507. RESERVED RIGHTS. In every grant to con- struct street railroads, the right to grade, sewer, pave, ma- cadamize, or otherwise improve, alter, or repair the streets or highways, is reserved to the corporation, and cannot be alienated or impaired; such work to be done so as to ob- struct the railroad as little as possible, and, if required, the corporation must shift its rails so as to avoid the obstruc- tions made thereby. History: Enacted March 21, 1872, founded upon § 9 Act 1870, Stats. 1869-70, p. 483; amended March 30, 1874, Code Amdts. 1873-4, p. 214; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 372, held unconstitutional, see history, § 4 ante. § 508. LICENSE TO BE PAID TO CITY OR TOWN. Each street-railroad corporation must pay to the authorities of the city, town, county, or city and county, as a license upon each car, such sum as the authorities may fix, not ex- ceeding fifty dollars per annum in the city of San Francisco, nor more than twentj^-five dollars per annum in other cities or towns. Where any street railroad connects or runs through two or more cities or towns, a proportionate or equal share of such license tax must be paid to each of the cities or towns; and no such license tax is due the county authorities where the same is paid to any city or town au- thority. Hi.<»tory: Enacted March 21, 1872, founded upon § 10 of Act March 29, 1870, Stats. 1869-70, p. 483. 269 §§509-511 CIVIL CODE. [Div.l.Pt.IV. §509. TRACK FOR GRADING PURPOSES. [TIME MAY REMAIN.] The right to lay down a track for grad- ing purposes, and maintain the same for a period not to ex- ceed three years, may be granted by the corporate authorities of any city or town, or city and county, or supervisors of any city or county, but no such track must remain more than three years upon any one street; and it must be laid level with the street, and must be operated under such restrictions as not to interfere with the use of the street by the public. [Motive power.] The corporate authorities of any city or town, or city and county, may grant the right to use steam or any other motive power in propelling the cars used on such grading track, when public convenience or utility de- mands it, but the reasons therefor must be set forth in the ordinance, and the right to rescind the ordinance at any time reserved. History: Enacted March 21, 1S72, founded upon § 11 of Act March 29, 1870, Stats. 1869-70, p. 483. §510. LAW GOVERNING STREET RAILROADS. Street railroads are governed by the provisions of title three of this part, so far as they are applicable, unless such rail- roads are therein specially excepted. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 214. §5iL TITLE APPLICABLE TO NATURAL PER- SONS ALIKE WITH CORPORATIONS. When a street railroad is constructed, owned, or operated by any natural person, this title is applicable to such person in like manner as it is applicable to corporations. History: Enacted March 21, 1S72. 270 Tit. v.] WAGON ROADS— SURVEY, ETC. §§512,513 TITLE V. WAGON ROAD CORPORATIONS. § 512. Three commis.sioners to act with surveyor. § 513. Survey and map to be filed and approved. § 514. Bridges or ferries on line. Tolls, limits of. Franchise forfeited, when. § 515. No tolls to be charged on highwa^■s or public roads. § 516. Rates of toll must be posted. § 517. Persons detained until toll is paid. § 518. Persons unnecessarily detained or overcharged, damages. § 519. Persons avoiding toll to pay five dollars. §520. Penalties for trespasses on property of corporation. § 521. Revenue, how appropriated. [Reduction of tolls, when. J § 522. Property may be mortgaged or hypothecated. § 523. This title applies to natural persons as well as corpora- tions. § 524. Franchises granted for construction of roads for use of horseless vehicles. §512. THREE COMMISSIONERS TO ACT WITH SURVEYOR. Where a corporation is formed for the con- struction and maintenance of a wagon road, the road must be laid out as follows: Three commissioners must act in con- junction with the surveyor of the corporation, two to be ap- pointed by the board of supervisors of the county through which the road is to run, and one by the corporation, who must lay out the proposed road and report their proceedings, together with the map of the road, to the supervisors, as provided in the succeeding section. History: Enacted March 21, 1872, founded on § 2 Act April 22, 1S53, Stats. 1853, p. 114; amended March 30, 1874. Code Amdts. 1873-4, p. 214. §513. SURVEY AND MAP TO BE FILED AND AP- PROVED. When the route is surveyed a map thereof must be submitted to and filed with the board of supervisors of 271 §514 CIVIL CODE. [Div.I.Pt.IV. each county through or into which the road runs, giving its general course, and the principal points to or by which it runs, and its width, which must in no case exceed one hun- dred feet, and the supervisors must either approve or reject the survey. If approved, it must be entered of record on the journal of the board, and such approval authorizes the use of all public lands and highways over which the survey runs; but the board of supervisors must require the corporation, at its own expense, and the corporation must so change and open the highways so taken and used as to make the same as good as before the appropriation thereof; and must so construct all crossings of public highways over and by its road and toll-gates, as not to hinder or obstruct the use of the same. Hi.story! Enacted March 21, 1S72, founded on § 1 Act 1S54, Stats. 1854, p. 74; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 372, held unconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1903, Stats. and Amdts. 1905, p. 577. §514. BRIDGES OR FERRIES ON LINE. TOLLS, LIMIT OF. FRANCHISE FORFEITED, WHEN. All wagon road corporations may bridge or keep ferries on streams on the line of their road, and must do all things necessary to keep the same in repair. They may take such tolls only on their roads, ferries, or bridges, as are fixed by the board of supervisors of the proper county through which the road passes, or in which the ferry or bridge is situate. [Amount of tolls permissible.] But in no case must the tolls be more than sufificient to pay fifteen per cent, nor less than ten per cent per annum, on the cost of construction, after paying for repairs and other expenses for attending to the roads, bridges, or ferries. [Penalty for violation.] If tolls, other than as herein pro- vided, are charged or demanded, the corporation forfeits its 272 Tit.V.] RATES OF TOLT.V — POSTING. §§515,516 franchise, and must pay to the party so charged one hundred dollars as liquidated damages. Historj-: Enacted March 21, 1872, founded on § 1 Act 1S57, Stats. 18.57, p. 280; amended March 28, 1874, Code Amdts. 1873-4, p. 272; March 30, 1874, Code Amdts. 1873-4, pp. 214-215; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 372, held unconstitutional, see history, § 4 ante; amendment re-enacted Ma^ch 21, 1905, Stats, and Amdts. 1905, p. 577. Note. — The act of March 30, 1874, covered the entire subject, and repealed, by implication, the amendment of March 2S, 1874, although the amendment of March 28 is given as the law in former compilations, and no reference made to amendment of March 30. § 515. NO TOLLS TO BE CHARGED ON HIGHWAYS OR PUBLIC ROADS. When any highway or public road is taken and used by any wagon road corporation as a part of its road, the corporation must not place a toll-gate on or take tolls for the use of such highway or public road by teamsters, travelers, drovers, or any one transporting prop- erty over the same. History: Enacted March 21, 1872, founded upon § 3 Act April 22, 1853, p. 115. §516. RATES OF TOLL MUST BE POSTED. 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 showing, first, the date when the franchise or privilege under which the right to collect tolls is claimed, was granted and the term of duration of said franchise; sec- ond, the date upon which rates of tolls were last fixed by the board of supervisors; and, third, the rates of tolls levied and demanded. Failure to comply with the provisions of this act shall work an immediate forfeiture of franchise. History: Enacted March 21, 1872, founded upon § 30 Act May 12, 1853, Stats. 1853, p. 176; amended Feb. 14, 1901, Stats, and Amdts. 1900-1, p. 5. In force Feb. 14, 1901. 21Z §§517-520 CIVIL CODE. [Div.I,Pt.IV. §517. PERSONS DETAINED UNTIL TOLL IS PAID. Each toll-gatherer may prevent from passing through his gate any person, animal, or vehicle, subject to toll, until the toll authorized to be collected for such passing has been paid. History: Enacted March 17, 1872, founded on § 29 Act May 12, 1853, Stats. 1853, p. 176; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 19^0-1, p. 372, held unconsti- tutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 577. §518. PERSONS UNNECESSARILY DETAINED OR OVERCHARGED, DAMAGES. Every toll-gatherer who, at any gate, unreasonably hinders or delays any traveler or passenger or any vehicle or animal liable to the payment of toll, or demands or receives from any person more than he is authorized to collect, for each offense forfeits the sum of twenty-five dollars to the person aggrieved. Hi.story: Enacted March 21. 1872, founded upon § 31 Act May 12, 1853, Stats. 1853, p. 176; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 372, held unconsti- tutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 578. §519. PERSONS AVOIDING TOLLS TO PAY FIVE DOLLARS. 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 on ground adjacent thereto, and again enters upon such road, for each offense forfeits the sum of five dollars to the cor- poration injured. History: Enacted March 21, 1872, founded upon § 33 Act May 12, 18-53, Stats. 1853, p. 176. § 520. PENALTIES FOR TRESPASSES ON PROPER- TY OF CORPORATION. Every person who: 1. Wilfully breaks, cuts down, defaces, or injures any mile- stone or post on any wagon, turnpike, or plank road; or, 274 Tit. v.] REVENUE— MORTGAGES. §§521,522 2. Wilfully breaks or throws down any gate on such road; or, 3. Digs up or injures any part of such road or anything thereunto belonging; or, 4. Forcibly or fraudulently passes any gate thereon with- out having paid the legal toll; For each offense forfeits to the corporation injured the sum of twenty-five dollars, in addition to the damages re- sulting from his wrongful act. History: Enacted March 21. 1S72, founded on § 32 Act May 12, 1853, Stats. 1853, p. 176. §521. REVENUE, HOW APPROPRIATED. [RE- DUCTION OF TOLLS, WHEN.] The entire revenue de- rived from the road shall be appropriated: first, to repay- ment to the corporation of the costs of its construction, to- gether with the incidental expenses incurred in collecting toils and keeping the road in repair; and, second, to the pay- ment of the dividend among its stockholders, as provided in section five hundred and fourteen. When the repayment of the cost of construction is completed, the tolls must be so reduced as to raise no more than an amount sufficient to pay said dividend, and incidental expenses, and to keep the road in good repair. HLstory: Enacted March 21, 1872, founded on § 4 Act April 22, 1853, p. 115; amended Marth 30, 1874, Code Amdts. 1873-4, p. 215. §522. PROPERTY MAY BE MORTGAGED OR HY- POTHECATED. The corporation may mortgage or hy- pothecate its road and other property for funds with which to construct or repair its road, but no mortgage or hypoth- ecation is valid or binding unless at least twenty-five per cent of the capital stock subscribed has been paid in and invested in the construction of the road and appurtenances, 275 §§523,524 CIVIL CODE, [Div.I.Pt.IV. and then only after an affirmative vote of two-thirds of the capital stock subscribed. History: Enacted March 21, 1872, founded on § 19 Act May 12 ,1853, Stats. 1853, p. 173; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 373, held unconsti- tutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 578. §523. THIS TITLE APPLIES TO NATURAL PER- SONS AS WELL AS CORPORATIONS. When a wagon, turnpike, or plank road is constructed, owned, or operated by any natural person this title is applicable to such person in like manner as it is applicable to corporations. History: Enacted March 21, 1S72. § 524. FRANCHISES GRAIsItED FOR CONSTRUC- TION OF ROADS FOR USE OF HORSELESS VE- HICLES. The legislative or other body to whom is in- trusted the government of any county, city and county, city, or town, may, under such regulations, restrictions, and limita- tions as it may provide, subject to existing laws, grant fran- chises for the construction of paths and roads, either on the surface, elevated, or depressed, on, over, across, or un- der the streets and public highway's of any such county, city, or town, for the use of bicycles, tricycles, motorcycles, and other like horseless vehicles, for a term not exceeding fifty years. In incorporated cities no franchise must be granted for the purpose herein expressed, unless the consent in writing of the owners of a majority of the frontage upon the road or street along which said path or road is sought to be con- structed, is first had and obtained, and filed with such legis- lative or governing body. History: Enacted by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 373, held unconstitutional, see his- tory, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 578. 276 Tit. VI.] BRIDGES, FERRIES, ETC.— TOLL. §§ 528, 529 TITLE VI. BRIDGES, FERRY, WHARF, CHUTE, AND PIER CORPORA- TIONS. § 528. Toll not to be collected without authority. § 529. Corporate existence ceases, when. § 530. President and secretary to make annual report to super- visors; what report must contain. Damages for fail- ure to report. § 531. This title to apply to natural persons alike with corpora- tions. §528. TOLL NOT TO BE COLLECTED WITHOUT AUTHORITY. No corporation must construct, or take tolls on, a bridge, ferry, wharf, chute, or pier until authority is granted therefor b}' the supervisors, or other governing body having authority in that behalf. History: Enacted March 21, 1872, founded upon § 1 Act April 8, 1858, Stats. 1858, p. 120, as amended by § 1 Act 1870, Stats. 1869-70, p. 526; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 373, held unconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1905. Stats, and Amdts. 1905, p. 579. §529. CORPORATE EXISTENCE CEASES, WHEN. Every such corporation ceases to be a body corporate: 1. If, within six months from filing its articles of incor- poration, it has not obtained such authority from the board of supervisors, or other governing body having authority in that behalf; and if, within one year thereafter, it has not commenced the construction of the bridge, wharf, chute, or pier, and actually expended thereon at least ten per cent of the capital stock of the corporation; , 2. If, within three years from filing the articles of incor- poration, the bridge, wharf, chute, or pier is not completed; 277 §530 CIVIL CODE. [Div.I.Pt.IV. 3. If, when the bridge, wharf, chute, or pier of the cor- poration is destroyed, it is not reconstructed and ready for use within three years thereafter; 4. If the ferry of any such corporation is not in running order within three months after authority is obtained to es- tablish it, or if at any time thereafter it ceases for a like term consecutively to perform the duties imposed by law. History: Enacted March 21, 1872, founded upon § 169 Act April 22, 1850, Stats. 1850, p. 373; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 373, held un- constitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 579. §530. PRESIDENT AND SECRETARY TO MAKE ANNUAL REPORT TO SUPERVISORS; WHAT RE- PORT TO CONTAIN. DAMAGES FOR FAILURE TO REPORT. The president and secretary of every bridge, ferry, wharf, chute, or pier corporation must annually, un- der oath, report to the board of supervisors, or other gov- erning body having authority in that behalf, of the county in which the articles of incorporation are filed: 1. The cost of constructing and providing all necessary appendages and appurtenances for its bridge, ferry, wharf, chute, or pier; 2. The amount of all moneys expended thereon, since its construction, for repairs and incidental expenses; 3. The amount of its capital stock, how much paid in, and how much actually expended thereof; 4. The amount received during the year for tolls, and from all other sources, stating each separately; 5. The amount of dividends made, and the indebtedness of the corporation, specifying for what it was incurred: 6. Such other facts and particulars respecting the busi- ness of the corporation, as the board of supervisors or other goverr»ing body having authority in that behalf may require. [Publication of report.] This report the president and secretary must cause to be published for four weeks in a 278 Tit.VL] TITLE APPLIES TO WHOM. §531 daily newspaper published nearest the bridge, ferry, wharf, pier, or chute, if required by order of the board of super- visors or other governing body having authority in that be- half. A failure to make such report subjects the corporation to a penalty of two hundred dollars, and for every week permitted to elapse after such failure an additional penalty of fifty dollars, payable in each case to the county from which the authority of the corporation was derived. [Duty of district attorney or city attorney.] All such cases must be reported by the board of supervisors, or other gov- erning body having authority in that behalf, to the district attorney or city attorney, who must commence an action therefor. HLstory: Enacted March 21. 1872, founded upon §§ 170-173 Act April 22, 1850, Stats. 1850, p. 373; amended by Code Com- mission, Act Marcli 6, 1901, Stats, and Amdts. 1900-1, p. 374, held unconstitutional, see history, § 4 ante; amendment re- enacted March 25, 1905, Stats, and Amdts. 1905, pp. 579-5S0. § 531. THIS TITLE TO APPLY TO NATURAL PER- SONS ALIKE WITH CORPORATIONS. When a bridge, ferry, wharf, chute, or pier is constructed, operated, or owned by a natural person, this title is applicable to such person in like manner as it is applicable to corporations. History: Enacted March 21, 1872. 279 §§536,537 CIVIL code. [Div.I.Pt.IV. [The former Title VII, Including §§ 536-541, was repealed by Act March 20, 1905, and the provisions in the following sections substituted therefor. Stats, and Amdts. 1905, p. 491. Prior legislation upon which original Title VII was founded will be found in Stats. 1S50, p. 347, §152; 1857, p. 117, §2; 1S62, p. 290, § 8.] TITLE VII. TELEGRAPH AND TELEPHONE CORPORATIONS. § 536. May use right of way along waters, roads, and high- ways. § 537. Liability for damaging telegraph or telephone property. § 538. Penalty for wilfully or maliciously injuring telegraph or telephone property. § 539. Conditions on which damage to subaqueous cable may be recovered. § 540. May dispose of certain rights. § 536. MAY USE RIGHT OF WAY ALONG WATERS, ROADS, AND HIGHWAYS. Telegraph or telephone cor- porations may construct lines of telegraph or telephone lines along and upon any public road or highway, along or across any of the v\'aters or lands within this state, and may erect poles, posts, piers, or abutments for supporting the in- sulators, wires, and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters. History: Enacted March 20, 1905, Stats, and Amdts. 1905, p. 492; see introductory note to this title. §537. LIABILITY FOR DAMAGING TELEGRAPH OR TELEPHONE PROPERTY. Any person who injures or destroys, through want of proper care, any necessary or useful fixture of any telegraph or telephone corporation, is liable to the corporation for all damages sustained thereby. Any vessel which, by dragging its anchor, or otherwise, breaks, injures, or destroys the subaqueous cable of a tele- 280 Tit.VIL] MALICIOUS INJURY— PENALTY. §§ 538-540 graph or telephone corporation, subjects its owner to the damages hereinbefore specified. History: Enacted March 20, 1905, Stats, and Amcits. 1905, p. 492; see introductory note to this title. §538. PENALTY FOR WILFULLY OR MALICIOUS- LY INJURING TELEGRAPH OR TELEPHONE PROP- ERTY. Any person who wilfully and maliciously does anj-^ injury to any telegraph or telephone property, mentioned in the preceding section, is liable to the corporation for one Inindred times the amount of actual damages sustained thereby, to be recovered in any court of competent juris- diction. History: Enacted March 20, 1905, Stats, and Amdts. 1905, p. 492; see introductory note to this title. §539. CONDITIONS ON WHICH DAMAGES TO SUBAQUEOUS CABLE MAY BE RECOVERED. No telegraph or telephone corporation can recover damages for the breaking or injuring of any subaqueous telegraph or telephone cable, unless such corporation has previously erect- ed on either bank of the waters under which the cable is placed, a monument, indicating the place where the cable lies, and publishes for one month in some newspaper most likely to give notice to navigators, a notice giving a descrip- tion and the purpose of the monuments, and the general course, landings, and termini of the cable. History: Enacted March 20, 1905, Stats, and Amdts. 1905, p. 432; see introductory note to tliis title. §540. MAY DISPOSE OF CERTAIN RIGHTS. Any telegraph or telephone corporation may at any time, with the consent of the persons holding two-thirds of the issued stock of the corporation, sell, lease, assign, transfer, or con- vey any rights, privileges, franchises, or property of the corporation, except its corporate franchise. History: Enacted March 20, 1905, Stats, and Amdts. 1905, p. 492; see introductory note to this title. 281 §§548,549 CIVIL CODE. [Div.I,Pt.lV. TITLE VIII. WATER AND CANAD CORPORATIONS. § 548. Corporation may obtain contract to supply city or town. § 549. Must furnish water for family use upon demand. Rules may be prescribed. § 550. Right to use streets, ways, alleys, and roads [repealed]. § 551. Construction of canal, etc. Construction and repair of bridges. Supervisors may construct bridges and re- cover therefor. § 552^ Right of purchasers to use water for irrigating. §548. CORPORATION MAY OBTAIN CONTRACT TO SUPPLY CITY OR TOWN. No corporation formed to supply any city, city and count}', or tow^n 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 corporation. [Regulating rates — Term of grant.] Contracts so made are valid and binding in law, but do not take from the city, city and county, or town the right to regulate the rates for water, nor must any exclusive right be granted. No con- tract or grant must be made for a term exceeding fifty years. History: Enacted March 21, 1872, founded upon § 3 Act May 3, 1852, Stats. 1852, p. 171. §549. MUST FURNISH WATER FOR FAMILY USE UPON DEMAND. RULES MAY BE PRESCRIBED. All corporations formed to supply water to cities or towns must furnish pure fresh water to the inhabitants thereof, for fam- ily uses, so long as the supply permits, at reasonable rates and without distinction of persons, upon proper demand therefor; and must furnish water to the extent of their means, in case of fire or other great necessity, free of charge. The 282 Tit.VIII.] CONSTRUCTION OF CANAL. §§550,551 board of supervisors, or the proper city or town autliorities, may prescribe proper rules relating to the delivery of water, not inconsistent with the laws of the state. History: Enacted March 21, 187?, founded upon § 4 Acl April 22, 1858, Stats. 1858, p. 219; amended March 30, 1874, Code Amdts. 1873-4, p. 216; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 375, held unconstitutional, see history, §4 ante; amendment re-enacted March 21, 1905, Stats. and Amdts. 1905, p. 580. §550. RIGHT TO USE STREETS, WAYS, ALLEYS, AND ROADS [repealed.] History: Enacted March 21, 1872; repealed by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 375, held unconstitutional, see history, §4 ante; re-repealed March 21, 1905, Stats, and Amdts. 1905, p. 580. §551. CONSTRUCTION OF CANAL, ETC. CON- STRUCTION AND REPAIR OF BRIDGES. SUPER- VISORS MAY CONSTRUCT BRIDGES AND RECOVER THEREFOR. No canal, flume, or other appliance for the conducting of water must be so laid, constructed, or main- tained as to obstruct any public highway; and every person or corporation owning, maintaining, operating, or using any such canal, flume, or appliance, crossing or running along any public highway, must construct, maintain, and keep in repair such bridges across the same as may be necessary to the safe and convenient use of such highway by the public; and on failure so to do, the board of supervisors of the county, after seven days' notice in writing to said person or corporation, may construct or repair such bridge or bridges, and recover of such person or corporation the amount of the expenditure made in so doing. History: Enacted March 21, 1872, founded upon § 4 Act May 14, 1862, Stats. 1862, p. 541; amended March 21, 1905, Stats, and Amdts. 1905, pp. 580-581. 283 5 552 CIVIL CODE. [Div.I,Pt.IV. §552. RIGHT OF PURCHASERS TO USE WATER FOR IRRIGATING. Whenever any corporation, organized under the laws of this state, furnishes water to irrigate lands which said corporation has sold, the right to the flow and use of said water is and shall remain a perpetual easement to the land so sold, at such rates and terms as may be established by said corporation in pursuance of law. [Person furnishing water entitled to continuance, when.] And whenever any person who is cultivating land on the line and within the flow of any ditch owned by such corpora- tion, has been furnished water by it, with which to irrigate his land, such person shall be entitled to the continued use of said water, upon the same terms as those who have pur- chased their land of the corporation. History: Enacted April 3, 1876, Code Amdts. 1875-6, p. 77. In effect April 3, 1S76. 284 Tit.IX.] HOMESTEAD CORPORATIONS. §§557,558 TITLE IX. HOMESTEAD CORPORATIONS. § 557. Time of corporate existence. § 558. By-laws must specify time for and amount of payment of instalments, and penalty for failure to pay. By- laws to be 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 exceeding two hundred thousand dollars. § 563. When corporation is terminated, and how. § 564. Payment of premiums. § 565. Annual report to be published. § 566. Publication in certain cases. §557. TIME OF CORPORATE EXISTENCE. Cor- porations organized for the purpose of acquiring lands in large tracts, paying off encumbrances thereon, improving and subdividing them into homestead lots or parcels, and dis- tributing them among the shareholders, and for the accumu- lation of a fund for such purposes, are known as homestead corporations, and must not have a corporate existence for a longer period than ten years. History: Enacted March 21. 1872, founded upon §§1, 3, Act May 20, 1861, Stats. 1861, p. 567; § 1 Act March 30, 1868, Stats. 1867-8, p. 539. §558. BY-LAWS MUST SPECIFY TIME FOR AND AMOUNT OF PAYMENT OF INSTALMENTS, AND PENALTY FOR FAILURE TO PAY. BY-LAWS TO BE FURNISHED TO ANY MEMBER ON DEMAND. Stich corporations mtist specify in their by-laws the times when the instalments of the capital stock are payable, the 285 §§559,560 CIVIL CODE. [Div.I,Pt.IV. amount tliereof, and the fines, penalties, or forfeitures in- curred in case of default. A printed copy of the articles of incorporation and by-laws must be furnished to any share- holder on demand. History: Enacted March 21, 1872. §559. ADVERTISEMENT AND SALE OF DELIN- QUENT AND FORFEITED SHARES. Whenever any shares of stock are declared forfeited by resolution of the board of directors, the directors may advertise the same for sale, giving the name of the subscriber and the number of shares, by notice of not less than three weeks, published at least once a week in a newspaper of general circulation in the city, town, or county where the principal place of business of such corporation is located. Such sale must be made at auction, under the direction of the secretary of the company. The corporation may be a bidder, and the shares must be disposed of to the highest bidder for cash. No de- fect, informality, or irregularity in the proceedings respecting the sale invalidates it, if notice is given as herein provided. After the sale is made the secretary must, on receipt of the purchase money, transfer to the purchaser the shares sold, and after deducting from the proceeds of such sale all in- stalments then due, and all expenses and charges of sale, must hold the residue subject to the order of the delinquent subscriber. History: Enacted March 21, 1S72. founded upon § 4 Act May 20 ,1861, Stats. 1861, p. 268, as amended April 4, 1864, Stats. 11863-4, p. 492, as amended by § 2 Act March 30, 1868, Stats. "1867-8, p. 540. §560. MAY BORROW AND LOAN FUNDS, HOW, AND FOR WHAT TIME. Homestead corporations may borrow nr^oney for the purposes of the corporation, not ex- ceeding at any one time one fourth of the aggregate amount of the shares or parts of shares actually paid in, and the 286 Tit.IX.] MINOR CHILDREN, WARDS, ETC. §§561,562 income thereof; no greater rate of interest must be paid therefor than twelve per cent per annum. For the purpose of completing the purchase of lands intended to be divided and distributed, they may borrow on the security of their shares on the land thus purchased, or that owned by the corporation at the time of procuring the loan, any sum of money which, together with the interest contracted to be- come due thereon, will not exceed ninety per cent of the unpaid amount subscribed bj^ the shareholders; but no loan must be made to the corporation for a term extending be- yond that of its existence. History: Enacted March 21, 1872, founded upon § 5 Act May 20, 1S61, Stats. 1S61, p. 569, as amended Act March 29. 1870, Stats. 1869-70, p. 474. §561. MINOR CHILDREN, WARDS, AND MARRIED WOMEN MAY OWN STOCK. Such shares of stock in homestead corporations as may be acquired by children, the cost of which, and the deposits and assessments on which are paid from the personal earnings of the children, or with gifts from persons other than their male parents, may be taken and held for them by their parents or guardians. Mar- ried women may hold such shares as they acquire with their personal earnings, or those of their children, voluntarily be- stowed therefor, or from property bequeathed or given to them by persons other than their husbands. History: Enacted March 21, 1872, founded upon § 6 Act May 20, 1861, Stats. 1861, p. 567. §562. FORFEITURE FOR SPECULATING IN OR OWNING LANDS EXCEEDING TWO HUNDRED THOUSAND DOLLARS. Homestead corporations must not purchase and sell, or otherwise acquire and dispose of real property, or any interest therein, or any personal prop- erty, for the sole purpose of speculation or profit. Nor must any such corporation at any one time own or hold, in 287 §563 CIVIL CODE. [Div.I.Pt.IV. trust or otherwise, for its purposes, real property, or any interest tlierein, which in the aggregate exceeds in cash value the sum of two hundred thousand dollars. [Penalty for violation.] For any violation of the pro- visions of this section, corporations forfeit their corporate rights and powers. On the application of any citizen to a court of competent jurisdiction such forfeiture may be ad- judged, and the judgment carries with it costs of the pro- ceedings. History: Enacted March 21, 1872. §563. WHEN CORPORATION IS TERMINATED, AND HOW. Except for the purpose of winding up and settling its affairs, every homestead corporation must ter- minate at the expiration of the time fixed for its existence in the articles of incorporation, or when dissolved as pro- vided in this part. No dividend of funds must be made on termination of its corporate existence, until its debts and liabilities are paid; and upon the linal settlement of the affairs of the corpora- tion, or upon the termination of its corporate existence, the directors, in such manner as they may determine, Must divide its property among its shareholders in pro- portion to their respective interests, or, upon the application of a majority in interest of the stockholders, must sell and dispose of any or all of the real estate of the corporation upon such terms as may be most conducive to the interests of all the stockholders, and must convey the same to the purchaser, and distribute the proceeds among the share- holders, 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. History: Enacted March 21, 1872, founded upon § 7 Act May 20, 1861, Stats. 1861, p. 569; § 1 Act Maroh 29, 1870, Stats. 1S69-70, p. 474. 288 Tit. IX.] PREMIUM— ANNUAL REPORT. §§564-566 § 564. PAYMENT OF PREMIUMS. Such premiums on lots may be made payable at the time they are bid off, and, if not so paid on any lot or land, the directors may imme- diately 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 man- ner provided in the by-laws for the sale of shares on account of delinquent instalments and premiums. History: Enacted March 21. 1872, founded upon § 1 Act March 29, 1870, Stats. 1869-70, p. 474. §565. ANNUAL REPORT TO BE PUBLISHED. The actual financial condition of all liomestead corporations must, by the directors thereof, be published annually in the [a] newspaper published at the principal place of business of the corporation, for four weeks, if published in a weekly, and two weeks, if published in a daily. The statement must be made up to the end of each year, and must be verified by the oath of the president and secretary, showing the items of property and liabilities. History: Enacted March 21, 1872, founded upon § 8 Act May 20, 1861, Stats. 1861, p. 569. §566. PUBLICATION IN CERTAIN CASES. In any case in which a publication is required, and no newspaper is published at the principal place of business, the publica- tion may be made in a paper published in an adjoining county. History: Enacted March 21, 1872. 289 §571 CIVIL CODE. [Div.I,Pt.IV. TITLE X. SAVINGS AND LOAN CORPORATIONS. § 571. May loan money, on what terms, how, and to whom, and how long. § 572. Capital stock, and rights and privileges thereof. § 573. No dividends, except from .surplus profits. To contract no liability, except for deposits. § 574. Property wliich may be owned by corporation, What may not hold, etc. § 575. Married women and minors may own stoclc in their own right. § 576. May issue transferable certificates of deposit. Special certificates. § 577. To provide a reserve fund for the payment of losses. § 578. Prohibition on director and officer, and what vacates office. § 579. Definition of phrase "create debts." § 580. Banks, amount of capital stock required [repealed]. § 581. Restrictions on savings banks. § 582. True name of persons engaged in banking business must be shown. § 583. Dividends. Surplus funds. § 583a. Capital actually paid up must be published. • § 583b. Biennial report to bank commissioners of unclaimed de- posits. §571. MAY LOAN MONEY, ON WHAT TERMS, HOW, AND TO WHOM, AND HOW LONG. Corpora- tions organized for the purpose of accumulating and loaning the funds of their members, stockholders, and depositors, may loan and invest the fimds thereof, receive deposits of money, loan, invest, and collect the same, vvrith interest, and may repay depositors with or without interest. No such 290 Tit.X.] CAPITAL STOCK— DIVIDENDS. §§572,573 corporation must loan money, except on adequate security on real or personal property, and such loan must not be for a longer period than ten years. History: Enacted March 21, 1S72, founded upon §§ 4, 5 Act April 11, 1862, Stats. 1862, p. 199, as amended Act April 12, 1864, Stats. 1863-4, p. 158; amended March 15, 1901, Stats, and Amdts. 1900-1, p. 295. In force March 15, 1901. § 572. CAPITAL STOCK, AND RIGHTS AND PRIVI- LEGES THEREOF. When savings and loan corporations have a capital stock specified in their articles of incorpora- tion, certificates of the ownership of shares may be issued; and the rights and privileges to be accorded to, and the obligations to be imposed upon, such capital stock, as dis- tinct from those of depositors, must be fixed and defined, either in the articles of incorporation or in the by-lav^^s. History: Enacted March 21, 1872, founded upon § 17 Act April 11, 1862, Stats. 1862, p. 203. §573. NO DIVIDENDS, EXCEPT FROM SURPLUS PROFITS. TO CONTRACT NO LIABILITY, EXCEPT FOR DEPOSITS. The directors of savings and loan cor- porations may, at such times and in such manner as the by- laws prescribe, declare and pay dividends of so much of the profits of the corporation, and of the interest arising from the capital stock and deposits, as may be appropriated for that purpose under the by-laws or under their agreements with depositors. The directors must not contract any debt or liability against the corporation for any purpose whatever, except for deposits. The capital stock and the assets of the corpora- tion are a security to depositors and stockholders, depositors having the priority of security over the stockholders, but the by-laws may provide that the same security shall ex- tend to deposits made by stockholders. History: Enacted March 21. 1872, founded upon § 10, Act April 11, 1862, Stats. 1862, p. 201, as amended Act March 4, 1870, Stats. 1869-70, p. 130. 291 §574 CIVIL CODE. [Div.I.Pt.IV. §574. PROPERTY WHICH MAY BE OWNED BY CORPORATION. WHAT MAY NOT HOLD, ETC. Savings and loan corporations may purchase, hold and con- vey real and personal property as foUow^s: 1. The lot and building in which the business of the cor- poration is carried on, the cost of w^hich must not exceed one hundred thousand dollars; except, on a vote of tw^o-thirds of the stockholders the corporation may increase the sum to an amount not exceeding two hundred and fifty thousand dollars; 2. Such as may have been mortgaged, pledged or conveyed to it in trust, for its benefit in good faith, for money loaned in pursuance of the regular business of the corporation; 3. Such as may have been purchased at sales under pledges, mortgages or deeds of trust made for its benefit, for money so loaned, and such as may be conveyed to it by borrowers in satisfaction and discharge of loans made thereon; 4. No such corporation must purchase, hold or convey real estate in any other case or for any other purpose; and all real estate described in subdivision three of this section must be sold by the corporation within ten years after the title thereto is vested in it by purchase or otherwise; 5. No such corporation must purchase, own, or sell personal property, except such as may be requisite for its immediate accommodation for the convenient transaction of its busi- ness, mortgages on real estate, bonds, securities or evidences of indebtedness, public or private, gold and silver bullion and United States mint certificates of ascertained value and evidences of debt issued by the United States; 6. No such corporation must purchase, hold or convey bonds, securities or evidences of indebtedness, public or pri- vate, except bonds of the United States, of the state of Cali- fornia, and of the counties, cities, or cities and counties, or towns, or school districts of the state of California, or bonds of railroad or street-railroad corporations owning property 292 Tit.X.] MARRIED WOMEN AND MINORS. §§ 575, 576 and having their principal place of business in the state of California, unless such corporation lias a capital stock or reserve fund paid in of not less than one hundred thousand dollars. Historj-: Enacted March 21, 1872, founded upon § 13 Act April 11, 1S62, Stats. 1862, p. 202, as amended by Act March 12, 18C4, Stats. 1863-4, p. 158, and by Act March 31, 1866, Stats. 1865-6, p. 626; amended March 30, 1874, Code Amdts. 1873-4, p. 273; amended by Code Commission, Act March 16, 1901, Stats, anrt Amdts. 1900-1, p. 375, lield unconstitutional, see history, § 4 ante; amended March 23, 1901, Stats, and Amdts. 1900-], p. 659. In force March 23. 1901. § 575. MARRIED WOMEN AND MINORS MAY OWN STOCK IN THEIR OWN RIGHT. Married women and minors may, in their own right, make and draw deposits and draw dividends, and give valid receipts therefor. HLstory: Enacted March 21, 1872. founded upon §§ 14, 15 Act April 11, 1862, Stats. 1862, p. 202, as amended Act March 12, 1864, Stats. 1863-4, p. 160, and amendatory Act March 4, 1870, Stats. 1869-70, p. 132. §576. MAY ISSUE TRANSFERABLE CERTIFI- CATES OF DEPOSIT. SPECIAL CERTIFICATES. Savings and loan corporations may issue general certificates of deposit, which are transferable, as in other cases, by in- dorsement and delivery; may issue, when requested by the depositor, special certificates, acknowledging the deposit by the person therein named of a specified sum of money, and expressly providing on the face of such certificate that the sum so deposited and therein named may be transferred only on the books of the corporation; payment thereafter made by the corporation to the depositor named in sucli certificate, or to his assignee named upon the books of tlie corporation, or, in case of death, to the legal representative 293 §§577,578 CIVIL code. [Div.I.Pt.IV. of such person, of the sum for which such special certificate was issued, discharges the corporation from all further lia- bility on account of the money so paid. History: Enacted March 21, 1872, founded upon § 1 Act March 28, 1868, Stats. 1867-S, p. 459. §577. TO PROVIDE RESERVE FUND FOR THE PAYMENT OF LOSSES. Savings and loan corporations may prescribe 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 repayment of a greater amount than the corporation may have disposable for that purpose, the directors or officers thereof must not make any new loans or investments of the funds of the depositors, or of the earnings thereof, until such excess of call has ceased. [Corporations without capital — Reserve fund.] The direc- tors of any such corporation having no capital stock must retain, on each dividend day, at least five per cent of the net profits of the corporation, to constitute a reserve fund, which must be invested in the same manner as other funds of the corporation, and must be used toward paying any losses which the corporation may sustain in pursuing its law- ful business, [Excess of reserve fund — Disposition on dissolution.] The corporation may provide by its by-laws for the dis- posal of any excess in the reserve fund over one hundred thousand dollars, and the final disposal, upon the dissolution of the corporation, of the reserve fund, or of the remainder thereof, after payment of losses. History: Enacted March 21, 1872, founded upon § 11 Act April 11, 1862, Stats. 1862, p. 201; Acts March 31 and April 4, 1870, Stats. 1869-70, p. .523. §578. PROHIBITION ON DIRECTOR AND OFFI- CER, AND WHAT VACATES OFFICE. No director or officer of any savings and loan corporation must, directly 294 Tit.X.] DEFINITION OF TERMS — RESTRICTION. §§ 579,581 or indirectly, for himself or as the partner or agent of oth- ers, borrow any of the deposits or other funds of such cor- poration, nor must he become an indorser or surety for loans to others, nor in any manner be an obligor for moneys borrowed of or loaned by such corporation. The office of any director or officer who acts in contravention of the pro- visions of this section immediately thereupon becomes va- cant. History: Enacted March 21, 1S72. § 579. DEFINITION OF PHRASE "CREATE DEBTS." Receiving deposits, issuing certificates of de- posit, checks, and bills of exchange and the like, in the trans- action of the business of savings and loan corporations, must not be construed to be the creation of debts within the meaning of the phrase "create debts," in section 309. History: Enacted March 21, 1S72. §580. BANKS, AMOUNT OF CAPITAL STOCK RE- QUIRED [repealed]. History: Original section enacted by Code Commission, Act "March 16. 1901, Stats, and Amdts. 1900-1, p. 376, held unconsti- tutional, see history, § 69 ante; an entirely different provision with sectional number enacted March 5, 1903, Stats, and Amdts. 1903, p. 87; re-enacted almost verbatim March 20, 1905. Stats, and Amdts. 1905, p. 507; repealed March 18, 1907, Stats, and Amdts. 1907, p. 576, Kerr's Stats, and Amdts. 1906-7, p. 415. §581. RESTRICTIONS ON SAVINGS BANKS. No savings bank shall lend to exceed sixty per cent of the market value of any piece of real estate to be taken as security, ex- cept for the purpose of facilitating the sale of property owned by the corporation. And it shall be unlawful for any savings and loan society, or savings bank, to purchase, in- vest, or loan its capital, or the money of its depositors, or any part of either, in mining shares or stocks. Any presi- 295 §§582,583 CIVIL code. [Div.I.Pt.IV. dent or managing officer who knowingly consents to a vio- lation of the above provision shall be deemed guilty of a felony. History: Enacted March 21, 1903, Stats, and Amdts. 1903, p. 352. In force March 21, 1903. §582. TRUE NAMES OF PERSONS ENGAGED IN BANKING BUSINESS MUST BE SHOWN. Every per- son or number of persons not being incorporated, engaged in the business of banking, or publicly receiving money on de- posit must conduct such business under a name which shows the true names of all persons engaged therein, unless such person or persons have complied with the provisions of article seven of chapter two of title ten of part four of di- vision third of said Civil Code. [Penalty for violation.] Every person violating any of the provisions of this section is guilty of a misdemeanor, and is punishable by imprisonment in the county jail for not less than ninety days nor more than six months, or by fine of not less than one hundred dollars nor more than five hun- dred dollars, or by both such fine and imprisonment. History: Enacted March 21, 1903, Stats, and Amdts. 1903, p. 352. In force March 21, 1903. §583. DIVIDENDS. SURPLUS FUNDS. The direc- tors of any savings bank, bank, or banking corporation hav- ing a capital stock, may semi-annually declare a dividend of so much of the net profits of the stockholders as they shall judge expedient; but every such corporation shall, before the declaration of such dividend, carry at least one tenth (1-10) part of the net profits of the stockholders for the preceding half year to its surplus or reserve fund until the same shall amount to twenty-five per centum of its paid-up capital stock. But the whole or any part of such surplus or reserve fund, if held as the exclusive property of stockholders, may 296 Tit.X.] CAPITAL PAID IN— PUBLISHING. §§ 583a, 583b at any time be converted into paid-up capital stock, in which event such surplus or reserve fund shall be restored in man- ner as above provided until it amounts to twenty-five per centum of the aggregate paid-up capital stock. A larger sur- plus or reserve fund may be created, and nothing herein contained shall be construed as prohibitory thereof. History: Enacted March 21, 1903, Stats, and Amdts. 1903. p. 353. In effect March 21, 1903. §583a. CAPITAL ACTUALLY PAID UP MUST BE PUBLISHED. No banker, nor ofificer of any bank or cor- poration doing a banking business, shall advertise in any manner, or publish any statement of the capital stock au- thorized or subscribed, unless he advertise and publish in connection therewith, the amount of capital actually paid up. Any officer, or the officers of any bank or corporation do- ing a banking business, advertising in any manner, or pub- lishing, a statement of the capital stock of such bank or banking corporation, authorized or subscribed, without the statement in connection therewith of the stock actually paid up, shall be guilty of a misdemeanor. History: Enacted March 21, 1903, Stats, and Amdts. 1903, p. 353. In effect March SI, 1903. §583b. BIENNIAL REPORT TO BANK COMMIS- SIONERS OF UNCLAIMED DEPOSITS. The president of every savings bank, savings and loan society, and every other bank, depository, society, or institution in which de- posits of money are made, whether any interest or dividend is paid, or agreed to be paid, thereon or not, must, within fifteen days after the first day of January of every odd-num- bered year, return to the board of bank commissioners a sworn statement showing the amount placed to his credit, the last known place of residence or post-office address, and the fact of death, if known to such president, of every de- positor who has not made a deposit therein or withdrawn 297 §583b CIVIL CODE. [Div.I.Pt.IV. therefrom any part of his deposit, or any part of the interest or dividends thereon, for a period of more than ten years next preceding. Such president must give notice of these deposits in one or more newspapers published in or nearest the town, city, or city and county where such bank, society, or other institution is situated or has its principal place of business, at least once a week for four successive weeks, the cost of such publication to be paid pro rata out of such un- claimed deposits. This section does not apply to any deposit made by or in the name of a person known to the president to be living, or which, with the accumulation thereon, is less than fifty dollars. The board of bank commissioners must incorporate in their subsequent report each return made to them as provided in this section. Any president of any of the institutions mentioned in this section who neglects or refuses to make the sworn statement required thereby is guilty of a misdemeanor. HLstorj-: Enacted March 21, 1905, Stats, and Amdts. 1905, pp. 580-581. The act contains two repealing sections as follows: § 2. The act entitled "An act to compel savings banks to publish a sworn statement of all unclaimed deposits," approved March 23, 1893, is hereby repeialed. § 3. The act entitled "An act to compel all depositories of money and commercial banks to publish a sworn statement of all unclaimed deposits," approved February 25, 1897, is hereby repealed. 298 Tit. XL] MINING CORPORATIONS. §586 [The original Title XI, embracing §§ 584-587, and each and every section thereof, was repealed March 21, 1905, and a new- Title XI substituted therefor, embracing §§ 586-590, Stats, and Amdts. 1905, pp. 584-587, and is substantially the codification of Act 1880 (Stats. 1880, p. 134), as amended by Act 1S97 (Stats, and Amdts. 1897, p. 38), and amendments proposed by Code Commission, Act March 16, 1901 (Stats, and Amdts. 1900-1, p. 377), which latter was held unconstitutional, see history, § 4 ante.] TITLE XL MINING CORPORATIONS. § 586. Transfer agencies. [May establish in other states.] § 587. Stock Issued at transfer agencies. [Surrender of cer- tificate.] § 587a. Consolidation of mining corporations. [Written consent of stockholders.] § 588. Books and balance-sheet to be kept by secretary. Stock- holders' right to inspect. § 589. Right of stockholders to visit mine with expert. [Duty of superintendent.] § 590. Liability of presidents and directors. [Refusal to per- mit examination; damages.] §586. TRANSFER AGENCIES. [MAY ESTABLISH IN OTHER STATES.] Any corijoration organized in this state for the purpose of mining or carrying on mining opera- tions in or without this state, may establish and maintain agencies in other states of the United States, for the trans- fer and issuing of their stock; and a transfer or issue of the same at any such transfer agency, in accordance with the provisions of its by-laws, is valid and binding as fully and effectually for all purposes as if made upon the books of such corporation at its principal office within this state. The agencies must be governed by the by-laws and the directors of the corporation. History: Enacted March 21, 1905, Stats, and Amdts. 1905, pp. 584-585; see introductory note to this title. 299 §§587, 587a civil code. [Div.I.Pt.IV. §587. STOCK ISSUED AT TRANSFER AGENCIES. [SURRENDER OF CERTIFICATE.] All stock of any sucli corporation, issued at a transfer agency, must be signed by the president and secretary of the corporation, and countersigned at the time of its issue by the agent having charge of the transfer agency. No stock must be issued at a transfer agency unless the certificate of stock, in lieu of which the same is issued, is at the time surrendered for cancelation. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 5S5; see introductory note to this title. § 587a. CONSOLIDATION OF MINING CORPORA- TIONS. [WRITTEN CONSENT OF STOCKHOLD- ERS.] It is lawful for two or more corporations formed, or that may hereafter be formed, under the laws of this state, for mining purposes, which own or possess mining claims or lands adjoining each other, or lying in the same vicinity, to consolidate their capital stock, debts, property, assets, and franchises, in such manner and upon such terms as may be agreed upon by the respective boards of directors or trustees of such corporations so desiring to consolidate their interests; but No such consolidation must take place without the writ- ten consent of the stockholders representing two thirds of the capital stock of each corporation, and no such consoli- dation can, in any way, relieve such corporations, or the stockholders thereof, from any and all just liabilities; and in case of such consolidation, Due notice of the same must be given, by advertising, for one month, in at least one newspaper in the county where the said mining property is situated, if there is one published therein, and also in one newspaper published in the county where the -principal place of business of any of said cor- poration is. [Certificate of consolidation — Filed, where.] And when the consolidation is completed, a certificate thereof, con- 300 Tit. XL] CONSOLIDATION— CERTIFICATE OF. § 588 taining the manner and terms of such consolidation, must be filed in the office of the county clerk of the county in which the original certificate of incorporation of each of said corporations is filed, and a copy thereof must be filed in the office of the secretary of state. [Same — To be signed by boards — Calling meeting of stock- holders — Notice.] Such certificate must be signed by a ma- jority of each board of trustees or directors of the original corporations, and it is their duty to call, within thirty days after the filing of such certificate, a meeting of the stock- holders of all of said corporations so consolidated, to elect a board of trustees or directors for the consolidated corpora- tion, for the year thence next ensuing; and to cause notice of the time and place fixed for such meeting to be mailed to each stockholder of each of such corporations at his last known place of residence or business at least ten days be- fore the time fixed for such meeting. The said certificate must also contain all the requirements prescribed by sec- tion two hundred and ninety. History: Enacted March 21, 1905, Stats, and Amdt.s. 190.^. p. 585; see introductory note to this title. §588. BOOKS AND BALANCE-SHEET TO BE KEPT BY SECRETARY. STOCKHOLDERS' RIGHT TO IN- SPECT. It is the duty of the secretary of every corpora- tion formed for. the purpose of mining, or conducting min- ing in California, whether such corporation be formed and organized under the laws of the state of California or of any other state, territory, or foreign country, to keep at some place within the state of California an office and in such office to keep a complete set of books showing all receipts and ex- penditures of such corporation, the sources of such receipts, and the objects of such expenditures, and also all transfers of stock. All books and papers must, at all times during business hours, be open to the inspection of any stockholder. He is entitled to be accompanied by an expert, and to make copies or extracts from any such books or papers. 301 §588 CIVIL CODE. [Div.I,Pt.IV. [Stockholder may examine mining property.] He may, at reasonable hours, examine such mining property, accom- panied by an expert, take samples, and make such other ex- amination as he may deem necessary. [Monthly balance-sheet — Verified by oath, of whom.] It is the duty of the directors, on the second Monday of each and every month, to cause to be made an itemized account or balance-sheet for the previous month, embracing a full and complete stateinent of all disbursements and receipts, showing from what sources such receipts were derived, and to whom and for what object or purpose such disbursements or payments were made; also all indebtedness or liabilities incurred or existing at the time, and for what the same were incurred, and the balance of money, if any, on hand. Such account or balance-sheet must be verified under oath by the president and secretary, and posted in some conspicuous place in the office of the company. [Superintendent to file monthly account; what must show.] It is the duty of the superintendent, on the first Monday of each month, to file with the secretary an itemized account, verified under oath, showing all receipts and disbursements made by him for the previous month, and for what said dis- bursements were made. Such account must also contain a verified statement showing the number of men employed under him, and for what purpose, and the rate of wages paid to each. [Same — Report attached to account — Open to inspection.] He must attach to such account a full and complete report, under oath, of the work done in said mine, the amount of ore extracted, from what part of mine taken, the amount sent to mill for reduction, its assay value, the amount of buHion received, the amount of bullion shipped to the ofiice of the companj^ or elsewhere, and the amount, if any, retained by the superintendent. It is his duty to forward to the of- fice of the company a full report, under oath, of all dis- coveries of ores or mineral-bearing quartz made in said 302 Tit. XL] RIGHTS OF STOCKHOLDERS. § 539 mine, wliether by boring, drifting, sinking, or otherwise, to- gether with the assay value thereof. All accounts, reports, and correspondence from the superintendent must be kept in some conspicuous place in the office of said company, open to the inspection of all stockholders. History: Enacted March 21, 1905, Stats, and Amdts. 1905, pp. 585-586; see introductory note to this title. §589. RIGHT OF STOCKHOLDER TO VISIT MINE WITH EXPERT. [DUTY OF SUPERINTENDENT.] Any stockholder of a corporation formed under the laws of this state for the purpose of mining, is entitled to visit, accompanied by his expert, and examine the mine or mines owned by such corporation, and every part thereof, at any time he may see fit; and when such stockholder applies to the president of such corporation, he must immediately cause the secretary thereof to issue and deliver to such applicant an order, under the seal of the corporation, directed to the superintendent, commanding him to show and exhibit such parts of said mine or mines as the party named in said order may desire to visit and examine. It is the duty of the superintendent, on receiving such or- der, to furnish such stockholder every facility for making a full and complete inspection of said mine or mines, and of the workings therein, and to accompany said stockholder either in person, or to furnish some person familiar with said mine or mines to accompany him in his visit to and through such mine or mines, and every part thereof. [Failure of superintendent to obey orders — Removal.] If the superintendent fails to obey such order, such stock- holder is entitled to recover, in any court of competent jurisdiction, against the corporation, the sum of one thou- sand dollars, and traveling expenses to and from the mine, as liquidated damages, together with costs of suit. In case of such refusal, it is the duty of the directors of the corpora- 303 §590 CIVIL CODE. [Div.I,Pt.IV. tion forthwith to remove the officer so refusing, and there- after he must not be employed directly or indirectly by the corporation, nor must any salary be paid to him. History: Enacted March 21, 1905, pp. 586-587; see intro- ductory note to this title. §590. LIABILITY OF PRESIDENT AND DIREC- TORS. [REFUSAL TO PERMIT EXAMINATION; DAMAGES.] In case of the refusal or neglect of the presi- dent to cause to be issued by the secretary the order men- tioned in section five hundred and eighty-nine, such stock- holder is entitled to recover against said president the sum of one thousand dollars and costs, as provided in the last section. If the directors fail to have the reports and accounts cur- rent made and posted as provided in section five hundred and eighty-eight, they are liable, either severally or jointly, to an action by any stockholder complaining thereof, and on proof of such refusal or failure, he may recover judgment for actual damages sustained by him, v^ith costs of suit. [Removal of directors.] Each of such defaulting directors is also liable to removal for such neglect. History: Enacted March 21, 1905, p. 587; .see introductory note to this title. 304 Tit.XIa.] CHAMBERS OF COMMERCE, ETC. § 591 [This title was added by Act March 21, 1905, Stats, and Amdts. 1905, pp. 587-589. The sections are a verbatim re-enact- ment of tlie similarly numbered sections of the Code Commis- sion, Act March 16, 1901 (Stats, and Amdts. 1900-1, pp. 380, 381), which was held unconstitutional, see history, § 4 ante. Thi.** added title is a codification of Act 1866 (Stats. 1865-6, p. 469), as amended by Act 1868 (Stats. 1867-8, p. 15), and Act 1885 (Stats, and Amdts. 1885, p. 76). See Stats, and Amdts. 1900-1, p. 429.] « TITLE XIa. CORPORATIONS FOR THE FORMATION OF CHAMBERS Of COMMERCE, BOARDS OF TRADE, MECHANICS' INSTI- TUTES, AND OTHER KINDRED ASSOCIATIONS. § 591. Formation, organization and powers of. § 592. Capital stock and certificates of. § 592a. Powers which may be conferred on the trustees, di- rectors, or the executive committee. § 592b. Power to acquire, sell, possess, and use property. § 592c. The by-laws. [Meetings, how called and conducted.] § 592d. Power to levy and collect assessments. § 592e. Pre-existing corporations may become entitled to the benefit of this title. § 591. FORMATION, ORGANIZATION AND POWER OF. Corporations for the formation and organization of chambers of commerce, boards of trade, mechanics" insti- tutes, and other associations formed for the extension and promotion of trade and commerce, or the advancement, pro- tection, and improvement of the mechanic arts, may be formed by twenty or more persons, who must execute and file articles of incorporation as prescribed in chapter one of title one of part four of this code. Upon receiving from the secretary of state a certificate of the filing with him of a certified copy of its articles of incorporation, such corpora- tion becomes a body corporate, and by its corporate name has succession for the period limited in its articles, and pow- er: To sue and be sued in any court; to make and use a common seal, and alter it at pleasure; to lease, purchase, 305 §§592, 592a civil code. [Div.I.Pt.IV. hold, sell, mortgage, convey in trust, convey, release from trust or mortgage, such real and personal property as here- inafter provided; to elect and appoint such officers, agents, and servants as the business of the corporation may require, and to make by-laws, not inconsistent with the laws of this state, providing for the organization of the corporation and the management of its affairs. [Business.] No corporation formed under this title must engage in any mercantile, commercial, or mechanical busi- ness. Hi.story: Enacted. March 21, 1905, Stats, and Amdts. 1905, p. 5SS. §592. CAPITAL STOCK AND CERTIFICATES OF. Every corporation formed under this title may have a cap- ital stock and issue certificates to represent the shares there- of, if the articles of incorporation contain a statement of the amount of its capital stock and the number of shares into which it is divided. [Rights and privileges of stockholders.] The rights and privileges to be accorded to stockholders are distinct from those to be accorded to members at large of the corporation, and the obligations to be imposed upon stockholders in the same relation must be fixed and established in the by-laws of the corporation. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 5'88. §592a. POWER WHICH MAY BE CONFERRED ON THE TRUSTEES, DIRECTORS, OR THE EXECUTIVE COMMITTEE. The corporation may confer upon a board of trustees or directors, or upon a body to be styled the executive committee of the corporation, the right to exer- cise all or any of the corporate powers, if the articles of in- corporation state that the right to exercise the corporate powers is to be confided to such board of trustees or di- rectors or to such executive committee, and the number of 306 Tit.XIa.] POWER TO CONTINUE. §§ 592b, 592c trustees, directors, or committee, and the names of those selected to take charge of the affairs of the corporation for the first six months. History: Enacted March 21, 1905, Stats, and Amdts. 1905, pp. 588-589. §592b. POWER TO ACQUIRE, SELL, AND USE PROPERTY. Every corporation formed under this title may lease, purchase, have, hold, use, take possession of, and enjoy in fee. simple or otherwise any personal or real prop- erty within the state necessary for the uses and purposes of the corporation, and may sell, lease, deed in trust, alien, or dispose of the same at its pleasure. History: Enacted March 21, 1905, Stats, and Amdts. 1905. p. 589. §592c. THE BY-LAWS. [MEETINGS, HOW CALL- ED AND CONDUCTED.] The by-laws of any corporation formed under this title without capital stock must prescribe how members of the corporation shall be admitted and how expelled, and how officers, agents, and servants shall be ap- pointed. Such provisions in the by-laws have force and ef- fect as between private parties and the corporation. [Manner of calling and conducting meetings.] All cor- porations formed under the provisions of this title must determine, by their by-laws, the manner of calling and con- ducting their meetings, the number of members that con- stitute a quorum, the manner of levying and collecting as- sessments, the officers of the corporation, the manner of their election or appointment and their tenure of office, and may prescribe suitable penalties for the violation of such by-laws, not exceeding in any case one hundred dollars for any one ofTense. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 589. 307 §§592d, 592e CiVlL CODE. [Div.I.Pt.IV. § 592d. POWER TO LEVY AND COLLECT ASSESS- MENTS. Every corporation formed under the provisions of this title has power to levy and collect, from the mem- bers thereof, for the purpose of paying the proper and legal expenses of the corporation, assessments in such manner as may be prescribed by its by-laws, but not otherwise. History: Enacted March 21, 1905, Stats, and Anidts. 1905, p. 589. §592e. PRE-EXISTING CORPORATIONS MAY BE- COME ENTITLED TO THE BENEFIT OF THIS TITLE. Every corporation, association, or institution formed prior to the enactment of this title, for any of the purposes contemplated thereby, may, by a vote of the ma- jority of its members voting at a meeting called for that purpose, become entitled to the benefit thereof on filing the ceretificate hereinafter required. Notice of such meeting and of its object must be pub- lished in a newspaper of general circulation in the county in which the principal place of business of the corporation, association, or institution is located, for at least two weeks before the day on which the meeting is to be held. [Certificate, execution and contents.] Such certificate must be signed and acknowledged by at least five members of the corporation, association, or institution, must contain a list of the members who desire to become members, and must be filed with the county clerk of such county, and a copy thereof, certified by him, must be filed with the sec- retary of state. Thereupon such corporation, association, or institution possesses all the powers and privileges conferred by this title. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 589. 3()8 Tit. XII. J RELIGIOUS, ETC., CORPORATIONS. §593 TITLE XII. RELIGIOUS, SOCIAL, AND BENEVOLENT CORPORATIONS. § 593. Corporations not for profit. Number of individuals. § 593[a].Same. § .594. Additional facts, articles of incorporation to set out [repealed]. § 595. Amount of real estate to be owned by such corporations. § 596. How much land friendly, etc., societies may hold. § 597. Directors to make verified report annually. § 598. Sale, mortgage, and bond of real property. § 599. What by-laws, etc., may provide for. § 600. Members admitted after incorporation. § 601. No member to transfer membersliip, etc. § 602. Religious society may become a corporation sole. § 602a. Corporation sole, continuous existence. § 603. Incorporation of religious society. § 604. Head office, annual election, etc. § 604a. Formation of religious corporations. Directors. § 605. Consolidation of corporations. §593. CORPORATIONS NOT FOR PROFIT. NUM- BER OF INDIVIDUALS. Any number of persons asso- ciated together for any purpose, where pecuniary profit is not their object, and for which individuals may lawfully asso- ciate themselves, may, in accordance with the rules, regu- lations, or discipline of the association, elect directors, the number thereof to be not less than three nor more than thirty-one, and may incorporate themselves as provided in this title. History: Enacted March 21, 1872, founded upon Stats. 1869-70, pp. 46 and 420 § 1; amended April 3, ISSO, Code Amdts. 1880 (C. C. pt.), p. 6; by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 381, held unconstitutional, see Kerr's Cyc. C. C. § 4; amendment re-enacted March 18, 1905, Stats, and Amdts. 3 905, p. 113; March 18, 1907, Stats, and Amdts. 1907, p. 579, Kerr's Stats, and Amdts. 1906-7, p. 415; February 24, 1911, Stats, and Amdts. 1911, p. 77. This section was again amended on May 1, 1911, which amendment is given below as § 593[a]. 309 §§593[a]-59S CIVIL CODE. [Div.I,Pt.IV. §593[a]. SAME. Any number of persons, associated to- gether for any lawful purpose other than pecuniary profit, may incorporate their said association, as provided in this title. History: Enacted March 21, 18T2, founded upon Stats. 1869- 70, pp. 46, 420 § 1; amended April 3, 1880 (C. C. pt.), p. 6; by Code Commission, Act March 16, 1901, Stats, and Amdts. 15)00-1, p. 381, held unconstitutional, see Kerr's Cyc. C. C. § 4; amendment re-enacted March 18, 1905, Stats, and Amdts. 1905, p. 113; March 18, 1907, Stats, and Amdts. 1907, p. 579, Kerr's Stats, and. Amdts. 1906-7, p. 415; February 24 and May 1, 1911. Stats, and Amdts. 1911, pp. 77, 1434. §594. ADDITIONAL FACTS, ARTICLES OF INCOR- PORATION TO SET OUT [repealed]. History: Enacted March 21, 1872, founded upon § 176, Act April 22, 1850, Stats. 1850, p. 374, as amended April 8, 1862, Stats. 1862 ,p. 125; repealed May 1, 1911, Stats, and Amdts. 1911, p. 1434. § 595. AMOUNT OF REAL ESTATE TO BE OWNED BY SUCH CORPORATIONS. All such corporations may hold all the property of the association owned prior to in- corporation, or acquired thereafter in any manner, and transact all business relative thereto; but no such corpora- tion must own or hold more real estate than may be neces- sary for the business and objects of the association, and pro- viding burial-grounds for its deceased members, not to ex- ceed SIX whole lots in any city or town, nor more than fifty acres in the country, the annual increase, income or profit, whereof must not exceed fifty thousand dollars; provided, that any such corporation now or hereafter having, and hav- ing had contmuously, 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 310 Tit. XII. J LAND THAT MAY HOLD. §596 any number of acres not exceeding one hundred and sixty acres of land in the country, outside of any incorporated city or town, and the annual income or profit of which does not exceed fifty thousand dollars; and provided further, that the limitations herein provided for shall not apply to cor- porations formed, or to be formed, under section six hundred and two of the Civil Code, when the land is held or used for churches, hospitals, schools, colleges, orphan asylums, par- sonages, or cemetery purposes or to corporations organized for social purposes and purposes of recreation and not for profit; and provided further, that the limitations herein pro- vided for shall not apply to corporations organized other than for profit, when the land is timber land, and not ex- ceeding 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 preser- vation of forests. History: Enacted March 21, 1S72, founded upon § 1S2, Act April 22, 1850, Stats. 1850, p. 374; amended Act May 3, 1852, Stats. 1852, p. 168; Act May 3, 1853, Stats. 1853, pp. 140-141; Act March 6, 1863, Stats. 1863, p. 34; amended April 6, 1881, Stats, and Amdts. 1881, p. 9; April 19, 1899, Stats, and Amdts. 1899, p. 10; by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 382, held unconstitutional, see history, § 4 ante; amendment re-enacted substantially in form' passed in 1901, March 13, 1903, Stats, and Amdts. 1903, p. 136; amended Feb- ruary 21, 1905, Stats, and Amdts. 1905, p. 18. §596. HOW MUCH LAND FRIENDLY, ETC., SOCI- ETIES MAY HOLD. In addition to that provided for m the preceding section, friendly societies and pioneer associa- tions maj^ hold such real estate as may be necessary to carry out their charitable purposes, or for the establishment and endowment of institutions of learning connected there- with. In case any such corporation is the ow^ner, by do- nation or purchase, of more lands than herein or in preced- ing section provided for, such surplus must be sold and 311 §§597,598 CIVIL code. [Div.I.Pt.IV. conveyed by the corporation within five years after its acqui- sition. Such sale may be made without the order or de- cree of the superior court as hereinafter provided. History: Enacted March 21, 1872; amended Act Jan. 25, 187.^, Code Amdts. 1877-8, p. 84; Act April 6, 1880, Code Amdts. 188U (C. C. pt.), p. 6. §597. DIRECTORS TO MAKE VERIFIED REPORT ANNUALLY. The directors must annually make a full re- port of all property, real and personal, held in trust for their corporation by them, and of the condition thereof, to the members of the association for which they are acting. History: Enacted March 21, 1872, founded upon § 183, Act April 22, 1850, Stats. 1850, p. 374; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1. p. 382, held unconstitutional, see history, § 4 ante. §598. SALE, MORTGAGE, AND BOND OF REAL PROPERTY. Before selling, mortgaging, aliening, encum- bering or granting its real property, or any part thereof, except a burial plot situated in grounds dedicated to burial purposes, a corporation organized under this title must first make it appear that the same is for its interest to the satis- faction of the superior court of the county wherein said real property is situated. [Filing petition.] To this end said corporation shall file with the clerk of said court a verified petition, describing the property aflfected, showing that the selling, mortgaging, aliening, encumbering, or granting of said property is for its interest, and praying that leave therefor be granted. [Hearing on petition.] Thereupon the court shall make an order reciting that said leave has been prayed for, describ- ing the property aflfected, and fixing a time and place for the hearing of the petition. Thereafter copies of said order shall be kept posted conspicuously for a period of ten days at the following places: (1) on the real property affected; (2) at 312 Tit.XIL] GRANTING EASEMENTS — BY-LAWS. §599 the place where the court is held; (3) at any other public place in said county where the said court shall direct. At the time set for the hearing the court must require proof that said notice has been faithfully given; and any member may appear and oppose or support the granting of the leave. If satisfied that it is for the interest of said corporation, said court shall thereupon grant said leave, and may authorize the said corporation to sell and convey its said property and to incur indebtedness and secure the same by deed of trust or mortgage upon its said real property; [Power to grant easements.] Provided, however, that any such corporation shall have the power by resolution, entered upon the minutes of such corporation, to grant easements to municipal or other public corporations for public street, alley or highway purposes and rights of way for publicly owned utilities and public uses, upon the approval of the superior court of the county wherein the real property of such cor- poration is situated, obtained in the same manner as herein provided for the selling, mortgaging, aliening or encumber- ing of its said property. History: Enacted March 21, 1872, founded upon §183, Act April 22, 1850, Stats. 1850, p. 374; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 382, held unconstitutional, see Kerr's Cyc. C. C. § 4; amended May 1, 1911, Stats, and Amdts. 1911, p. 1434; June 10, 1913. Stats, and Amdts. 1913, p. 565. In eflfect August 10, 1913. §599. BY-LAWS, ETC., WHAT MAY PROVIDE FOR. Corporations now organized or that may hereafter be or- ganized for purposes other than profit, may, either in their by-laws, ordinances, constitutions, or articles of incorpora- tion, provide for: 1. [Qualification of members.] The qualification of mem- bers, mode of election or appointment, and terms of admis- sion to membership; 313 §599 Civil. CODE. [Div.I.Pt.IV. 2. The fees of admission and dues to be paid to their treas- urer by members; 3. [Quorum — Election of Directors.] The number of persons that shall constitute a quorum at any meeting of the members of the corporation, and the number of directors who shall constitute a quorum at any meet- ing of the board of directors, and the election of direc- tors or other officers of the corporation by a meeting of the members of the corporation so constituted, or by a meeting of the board of directors so constituted, and the appointment or selection of directors, or other officers, in any manner; and if any corporation now organized, or that may hereafter be organized, for purposes other than profit, does in its by-laws, ordinances, constitutions or arti- cles of incorporation, provide for an election of directors or other officers of the corporation by a meeting of the mem- bers of the corporation so constituted, or by a meeting of the board of directors so constituted, or for the appoint- ment or selection of directors or other officers, in any man- ner, then such election or appointment or selection shall be as valid as if made at an election at which a majority of the members of the corporation were present and voted; 4. [Manner of voting.] The manner of voting bj^ the members of the corporation, which may be by ballot in the manner provided for by section three hundred twenty-one b of this code, or in any other manner provided for by the by-laws, ordinances, constitutions, or articles of incorpora- tion of any corporation now organized, or that may here- after be organized, for purposes other than profit; 5. [Expulsion of members.] The expulsion and suspen- sion of members for misconduct or non-payment of dues, also for restoration to membership; 6. [Organization of board, etc.] A special method of or- ganizing the board of directors, and a special method of increasing or diminishing the number of directors within the limits as to number prescribed by section five hundred ninety-three of this code; 314 Tit.XII.] BY-LAWS— MEMBERS— TRANSFERS. §§600-602 7. [Indebtedness.] Contracting, securing and limiting the amount of their indebtedness; 8. [Rules, regulations, discipline.] That the rules, regula- tions or discipline, for the time being, of any society, reli- ious denomination, church, or other corporation, now or- ganized or which may hereafter be organized for purposes other than profit, shall always be a part of their by-laws, ordinances, constitutions or articles of incorporation; 9. [Further regulations.] Other regulations not repugnant to the constitution or laws of the state and consonant with the objects of the corporation. History: Enacted March 21, 1872; amended March 14, 1SS5, Stats, and Amdts. 1885, p. 136: March 31, 1897, Stats, and Amdts. 1897, p. 246; February 24, 1911, Stats, and Amdts. 1911, p. 77; April 29, 1915, Stats, and Amdts. 1915, p. 302. In efifeot August 8, 1915. § 600. MEMBERS ADMITTED AFTER INCORPORA- TION. Members admitted after incorporation have all the rights and privileges, and are subject to the same responsi- bilities, as members of the association prior thereto. History: Enacted March 21, 1872, founded upon § S, Act April 27, 1863, Stats. 1863, p. 627. §601. NO MEMBER TO TRANSFER MEMBERSHIP, ETC. No member, or his legal representative, must dis- pose of or transfer any right or privilege conferred on him by reason of his membership of such corporation, or be de- prived thereof, except as herein provided. Hi-story: Enacted March 21, 1872. §602. RELIGIOUS SOCIETY MAY BECOME A COR- PORATION SOLE. Whenever the rules, regulations, or discipline of any religious denomination, society, or church so require, for the administration of the temporalities there- of, and the management of the estate and property thereof, 315 §602 CIVIL CODE. [Div.I.Pt.IV. it shall be lawful for the bishop, chief priest, or presiding elder of such religious denomination, society, or church to become a sole corporation, in the manner prescribed in this title, as nearly as may be, and with all the powers and duties, and for the uses and purposes in this title provided for re- ligious incorporations, and subject to all the conditions, limi- tations, and provisions in said title prescribed. [Powers.] Every corporation sole shall, however, for the purposes of the trust, have power to contract in the same manner and to the same extent as a natural person, and may sue and be sued, and may defend, in all courts and places, in all matters and proceedings whatever, and shall have authority 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 prop- erty in the same manner that a natural person may, and without the order of anj^ court; to receive bequests and de- vises for its own use or upon trusts to the same extent as natural persons may; and to appoint attorneys in fact. [Articles of incorporation to set forth, what,] The arti- cles of incorporation to be filed shall set forth the facts au- thorizing such incorporation, and declare the manner in which any vacancy occurring in the incumbency of such bishop, chief priest, or presiding elder is required by the rules, regulations, or discipline of such denomination, society, or church to be filled, which statement shall be verified by affidavit, and for proof of the appointment or election of such bishop, chief priest, or presiding elder, or of any suc- ceeding incumbent of such corporation, it shall be sufficient to record with the clerk of the county in which such bishop, chief priest, or presiding elder resides, the original or a copy of his commission, or certificate, or letters of election or ap- pointment, duly attested; provided, all property held by such bishop, chief priest, or presiding elder shall be in trust for the use, purpose, and behoof of his religious denomination, society, or church. 316 Tit.XII.] CORPORATION SALE. § 602a [Certain limitation does not apply.] The limitation in sec- tion five hundred and ninety-five shall not apply to corpora- tions formed under this section, when the land is held or used for churches, hospitals, schools, colleges, orphan asy- lums, parsonages, or cemetery purposes. Any judge of the superior court in the county in which any corporation is formed under this chapter shall at all times have access to the books of such corporation. [Continuation of corporation sole.] Any corporation sole heretofore organized and existing under the laws of this state may elect to continue its existence under this title by filing a certificate to that effect, under its corporate seal and the hand of its incumbent, or amended articles of incorpora- tion, in the form required by this title, and as prescribed by section two hundred and eighty-seven of this code; and from and after the filing of such certificate or amended articles, such corporation shall be entitled to the privileges and sub- ject to the duties, liabilities, and provisions in this title ex- pressed. History: Enacted March 30, 1878, Code Amdts. 1877-8, p. 84; amended April 6, 1880, Code Amdts. 1880 (C. C. pt.), p. 6; March 11, 1897, Stats, and Amdts. 1897, p. 101. §602a. CORPORATION SOLE, CONTINUOUS EX- ISTENCE. Every corporation sole shall have continued succession and continuous existence during the term for which it is organized to exist, notwithstanding vacancies in the incumbency thereof, and during the period of any such vacancy such corporation sole shall have the same capacity and right to receive and take any gift, bequest, devise or con- veyance of property, either as grantee for its own use, or as trustee, and to be or be made the beneficiary of a trust, as though there were no vacancy. No agency created by a cor- poration sole by a written instrument which in express terms provides that the agency thereby created shall not be ternn- nated by a vacancy in the incumbency of such corporation, 317 §§603,604 CIVIL CODE. [Div.I.Pt.IV. shall be terminated or afifected by the death of the incumbent of such corporation or by a vacancy in the incumbency there- of, however caused. Historj-: Enacted March 21. 1907, Stats, and Amdts. 1907, p. 836, Kerr"s Stats, and Amdts. 1906-7, p. 415. In elfoct im- mediately. §603. INCORPORATION OF RELIGIOUS SOCIETY. Any religious association or body of this state, composed of constituent churches, parishes, congregations, societies or missions which have a common convention, synod, council, assembly or conference, may incorporate under the provis- ions 'of this title. The articles of incorporation shall set forth the proceed- ings authorizing the incorporation of such association, the time and place at which they were had, the ma«ner in which, and the terms of which, the directors or trustees named in the articles of incorporation were chosen, and that said pro- ceedings were in accordance with the constitution, by-laws, discipline, canons, rules and regulations of such association. The articles of incorporation need be subscribed and ac- knowledged only by the presiding officer, and clerk, scribe, or secretary of such association; but they must make affi- davit, which shall be appended to the articles, that they sub- scribed and acknowledged the articles by authority of such association, and that the statements therein contained are true to the best of their knowledge, information and belief. History: Former section enacted March 12, 1SS5, Stats, and Amdts. 1885, p. 109; sought to be repealed, it is thought, by § 604, subsequently enacted; repealed and present section enact- ed May 1, 1911, Stats, and Amdts. 1911, p. 1435. §604. HEAD OFFICE, ANNUAL ELECTION, ETC. Any corporation organized under section six hundred and three, or under section six hundred and three or section six hundred and four as they existed before this amendment, 318 Tit. X 11.] FORMATION OF — DIRECTORS. § 604a must maintain its head office at the place where, as set forth in its articles of incorporation, its principal business is to be transacted; but may provide in its by-laws that the annual meeting and annual electron shall be held at such other place as may from time to time be designated by the directors or trustees. Any such corporation may hold and administer not only the common property, funds, and money of such corpora- tion, but also the property, funds, and money of any con- stituent church, parish, congregation, society, or mission; and in so far as the land held by any such corporation is held or used for church, hospital, school, college, asylum, par- sonage, or cemetery purposes, the limitation declared in sec- tion five hundred and ninety-five shall not apply. History: Enacted March 20, 1903, Stats, and Amdt.s. 1903, p. 252; amended May 1, 1911, Stats, and Amdts. 1911, p. 1435. §604a. FORMATION OF RELIGIOUS CORPORA- TIONS. DIRECTORS. For the administration of the temporalities, and for the management of the property and estate of any church, diocese, synod, or district or other or- ganization of such church, or for the administration of the temporalities, and for the management of the property and estate of any religious society or order, community, or other organization of said religious society or order, any church, diocese, synod, or other organization of such church, or any community or other council, or other organization of any such religious society or order, or of any community or other organization of such religious society or order, 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 limitations and provisions in said title prescribed, e.xcept as otherwise provided in this section; 319 -§604a CIVIL CODE. [Div.I.Pt.IV. [By-laws.] Provided, that directors of any such incor- poration may be elected and by-laws for its government may be made and amended in accordance with the constitution, by-laws, discipline, rules and regulations of such church, diocese, synod, or district or other organization of such church, or in accordance with the constitution, by-laws, dis- cipline, rules and regulations of such religious society or or- der, or of any community, or other organization of such re- ligious society or order, at any meeting; [Attesting certificate of incorporation.] And provided, the certificate of incorporation and of the election of directors to be filed shall be sufficiently attested by the signatures of the presiding officer, president, or other head, and acting sec- retary of such church, diocese, synod or other organization of such church, or of the community or other council, or other organization of such society or order, and that the limitations of section five hundred ninety-five shall not ap- ply to corporations formed under this section when land is held or used for churches, hospitals, schools, colleges, asy- lums, or parsonages. [Powers.] Every corporation formed pursuant to the pro- visions of this section shall have power to contract in the same manner and to the same extent as a natural person, and may sue and be sued, and may defend in all courts and places in all matters and proceedings whatsoever, and shall have authority to borrow money, give promissory notes therefor, and secure the payment thereof by mortgage or other lien upon property, real or personal, and may buy, sell, lease, mortgage and deal in real and personal property in the same manner that a natural person may, subject, how^ever, to the provisions of section five hundred and ninety-eight of this code; and may receive bequests and devises for its own use, or upon trusts, to the same extent as a natural per- 320 Tit. XII.] CONSOLIDATION — RESOLUTION. * §605 son, subject, however, to the provisions of section thirteen hundred thirteen of the Civil Code of the State of California, and may appoint attorneys in fact. Histciry: Enacted June 10. 1913, Stats, and Amdts. 1913, p. 566. In effect August 10, 1913. §605. CONSOLIDATION OF CORPORATIONS. Any corporation now or hereafter organized for purposes other than profit, may consolidate with any other like association or associations, or corporation or corporations, created either under the laws of the State of California, or under the laws of any other state or territory, so as to forin a new or con- solidated corporation, in such manner as may be authorized by the respective boards of directors or trustees of such associations or corporations by resolution adopted at meet- ings of the respective boards called for that purpose. The resolution to be adopted by each of the respective boards shall state the names of all the corporations or asso- ciations to be united by the consolidation, the name of the state or territory under the laws of which they are created or organized, and the dates of their respective incorporation, the name by which the new or consolidated corporation is to be called or known, the purposes for which it is to be formed, the place where its principal business is to be trans- acted, the term for which it is to exist, the number of its di- rectors or trustees, and the names and residences of those who are appointed to act as such for the first year, and shall designate three or more persons by whom articles of incor- poration of the new or consolidated corporation shall be sub- scribed and filed in compliance with this section. Articles of incorporation of the new or consolidated cor- poration shall be subscribed and acknowledged by the per- sons so designated as last aforesaid in the manner required by section two hundred and ninety-two of this code. Said articles shall contain and set forth all the matters required by section two hundred and ninety of this code, and in addi- 11 321 §605 CIVIL CODE. [Div.I,Pt.IV. tion thereto there shall be attached to said articles copies of the aforesaid resolution of the several associations or cor- porations, uniting in the consolidation, certified by the respec- tive secretaries of such associations or corporations under the corporate seals thereof; and the said articles of incor- poration shall in the body thereof refer to the said resolu- tions and to the certified copies thereof so attached, and by such reference make the said certified copies a part of the said articles. The said articles of incorporation shall be filed in the of- fice of the county clerk of the county where the principal business of the new or consolidated corporation is to be transacted, and a certified copy thereof in the office of the secretary of state, in the manner required by this code for the filing of original articles of incorporation; and thereupon the secretary of state shall issue to the corporation, over the great seal of the state, a certificate in manner and form as provided by section two hundred and ninety-six of this code. From and after the filing of such certified copy of the articles of incorporation with the secretary of state the for- mer associations or corporations uniting in the consolida- tion and comprising the component parts of the new or con- solidated corporation shall cease to exist, and the new or consolidated corporation shall succeed to all the rights, duties and powers of the component associations or corpora- tions, and shall be possessed of all the rights, duties and powers set forth in its articles of incorporation not incon- sistent with this title, and shall be subject to all the liabili- ties and obligations of the former component associations or corporations, and shall succeed to and become vested with all the property thereof, both real and personal, of every name and nature, and may make by-laws and do all things permitted by this title. History: Original section providing for consolidation of debts, enacted March 20, 1903, Stats. and.Amdts. 1903, p. 252; present section enacted as an amendment April 26, 1909, Stats, and Amdts. 1909, p. 1094. 322 Tit.XIIa.] HUMANE CORPORATIONS. §§ 607, 607a [This is a new title added by Act March 21, 1905 (Stats, and Amdts. 1905, pp. 590-592), and is a re-enactment of a new title added by Code Commission, Act March 16, 1901 (Stats, and Amdts. 1900-1, pp. 382-384, 429), which was held unconstitu- tional, see history. § 4 ante. The title is a codification of Act 1874, Stats. 1873-4, p. 499, and Act 1876, Stats. 1875-6, p. 830.] TITLE Xlla. SOCIETIES FOR THE PREVENTION OF CRUELTY TO CHILDREN AND ANIMALS. § 607. Formation of [humane] corporations. § 607a. Power of to receive and dispose of property. [Amount.] § 607b. Complaints for violating- any law relating to children or animals. § 607c. Magistrates and police officers to aid the corporation and its offlceTs. § 607d. Pre-existing corporations. [Title extends to.] § 607e. Compensation of. § 607f. Appointment of humane officers. § 607g. Children who may be arrested and brought before a court or magistrate for examination. §607. FORMATION OF [HUMANE] CORPORA- TIONS. Corporations may be formed by any number of persons not less than five, a majority of whom must be citi- zens and residents of this state, under the general provisions of this code, for the purpose of the prevention of cruelty to children or animals, or both. History-: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 590; see introductory note to this title. §607a. POWER TO RECEIVE AND DISPOSE OF PROPERTY. [AMOUNT.] Every such corporation may take and hold, by gift, purchase, devise, or bequest, any 323 §§607b-607d CIVIL CODE. [Div.I,Pt.IV. property, real or personal, and dispose of the same at its pleasure; but it must not hold real property the annua! in- come of which exceeds fifty thousand dollars. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 590; see introductory note to this title. §607b. COMPLAINTS FOR VIOLATING ANY LAW RELATING TO CHILDREN OR ANIMALS. Any such corporation, or any member or officer thereof, may prefer a complaint against any person or persons, before anj^ court or magistrate having jurisdiction, for the violation of any law relating to or affecting children or animals, and may aid in the prosecution of any such offender before such court or magistrate in any proceeding taken. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 590; see introductory note to this title. § 607c. MAGISTRATES AND POLICE OFFICERS TO AID THE CORPORATION AND ITS OFFICERS. All magistrates, constables, sheriffs, and officers of police inust, as occasion may require, aid any such corporation, its offi- cers, members, and agents, in the enforcement of all laws which are now or may be hereafter enacted relating to or affecting children or animals. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 590'; see introductory note to this title. §607d. PRE-EXISTING CORPORATIONS. [TITLE EXTENDS TO.] The provisions of this title extend to all corporations heretofore formed and existing for the preven- tion of cruelty to children or animals, but do not extend or apply to any association, society, or corporation which uses or specifies a name or style the same, or substantially the 324 Tit.XIIa.] COMPENSATION— URGENCY. § 607e same, as that of any previously existing society or corpora- tion in this state organized for a like purpose. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 590; see introductory note to this title. §607e. COMPENSATION OF. Every society, incor- porated and organized for the prevention of cruelty to ani- mals, or for the prevention of cruelty to children, may, in each city, or city and county, or county, where such society exists, while actively engaged in enforcing the provisions of the laws of this state, now or hereafter enacted, for the pre- vention of cruelty to animals or children, or arresting, or prosecuting offenders thereunder or preventing cruelty to ani- mals or children, be paid as compensation therefor, from the city or county, or city and county general fund, by the board of supervisors or other governing body thereof, a sum not exceeding five hundred dollars per calendar month, in the same manner as other claims against said city or county, or city and county, are paid. [Urgency measure.] Sec. 2. This act is hereby declared to be an urgency measure within the meaning of section 1, article IV of the constitution, and is deemed necessary for the immediate preservation of the public peace and safety. The following is a statement of facts constituting such neces- sity: Section six hundred and seven e of the Civil Code per- mits societies organized for the prevention of cruelty to ani- mals to make arrests, carry on prosecutions and collect fines and under the provisions of this section numerous societies have been organized and are being operated in such a man- ner as to be a menace to the public peace and safety. Ar- rests are being made and property seized without prosecu- tion of the charges made, citizens are being forced to pay tribute to outlaw societies to escape persecution, and peace officers are urging the immediate withdrawal of the right of 325 §607f CIVIL CODE. [Div.I,Pt.IV. these societies to collect fines because of their greatly in- creased activity in these practices, pending the time when this bill may bcome law. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 591; amended March 20, 1909, Stats, and Amdts. 1909, p. 574; "March 24, 1911, Stats, and Amdts. 1911, p. 487; May 30, 1913, Stats, and Amdts. 1913, p. 638. lu effect immediately. §607f. APPOINTMENT OF HUMANE OFFICERS. Any such corporation incorporated for the purpose of the prevention of cruelty to animals may by resolution of its board of directors or trustees duly entered on its minutes appoint any number of its members, who shall be citizens of the State of California as humane officers. Each appoint- ment shall be by separate resolution. Such resolution shall state the full name and place of residence and the business or occupation of the person so appointed and the fact that he is a citizen of the State of California and shall also designate the number of the badge to be allotted to such officer. Every person so appointed must within ten days after his appoint- ment present to the judge of the superior court in and for the county or city and county in which the corporation ap- pointing such officer has its principal place of business a copy of such resolution duly certified to be correct bj^ the president and secretary of such corporation and attested b> its seal. [Approval of judge.] The judge shall examine such ap- pointee as to his qualifications and fitness to act as such officer and, if he approves such appointment, shall indorse his approval on said certified copy of said resolution. Said ap- pointee shall thereupon and within said period of ten days file said certified copy with the judge's approval indorsed thereon in the office of the county clerk of said county or city and county and shall at the same time take and subscribe the oath of office prescribed for constables or other peace officers. 326 Tit.XIIa.] RECORD— APPOINTMENT. § 607f ["Record of humane officers."] The county clerk shall thereupon immediately enter in a book to be kept in his of- fice and designated "Record of Humane Officers" the name of such officer, the number of his badge, the name of the cor- poration appointing him and the date of such filing. At the time of such filing the county clerk shall collect from such officer a fee of fifty cents, which shall be in full for all ser- vices to be performed by the county clerk under the pro- visions of this section. [Revocation of appointment.] The corporation appoint- ing such officer inay revoke such appointment at any time by resolution of its board of directors or trustees, a duly certi- fied copy of which resolution inust within five days after its adoption be filed in the office of the county clerk in which the appointment of such officer is recorded and upon such filing the county clerk shall enter the fact of such revoca- tion and the date of the filing thereof opposite the name of such officer in such record of humane officers. [Powers of officer.] Such humane officers after qualifying as above provided shall have power at all places within the state lawfully to interfere to prevent the perpetration of any act of cruelty upon any dumb animal and may use such force as may be necessary to prevent the same and to that end may summon to their aid any bystander. They may make arrests for the violation of any penal law of this state relat- ing to or affecting animals in the same manner as a constable or other peace officer and may carry such weapons as peace officers are authorized to carry; except that in cities and counties and cities of the first and first and one half classes no such humane officer shall carry any such weapon unless permission in writing so to do has first been granted to him by the board of police commissioners of such city or city and county. Every humane officer must when making such ar- rests exhibit and expose a suitable badge to be adopted by the corporation appointing him which shall bear its name and a number. ill §607g CIVIL CODE. [Div.I.Pt.IV. [Resisting officer.] Any person resisting a humane orti- cer in the performance of his duty as provided in this sec- tion shall be guilty of a misdemeanor. Any person who has not been appointed and qualified as a humane officer as provided in this section, or whose ap- pointment has been revoked as provided in this section, who shall represent himself to be or shall attempt to act as such officer shall be guilty of a misdemeanor. [False certificate.] Any officer of such corporation who shall knowingly or wilfully sign or issue any certificate pro- vided for in this section, which shall be in any material re- spect false or untrue, shall be guilty of a misdemeanor. [Repealing clause.] Sec. 2. All acts and parts of acts in conflict with the provisions of this act are hereby repealed. History: Enacted March 21. 1905, Stats, and Amdts. 1905, p. 591; amended February 20. 1909, Stats, and Amdts. 1909, p. 33; May 30, 1913, Stats, and Amdts. 1913, p. 511. In effect August 10, 1913. § 607g. CHILDREN WHO MAY BE ARRESTED AND BROUGHT BEFORE A COURT OR MAGISTRATE FOR EXAMINATION. Any child under the age of sixteen years that conies within any of the following descriptions named: 1. Who is found begging or receiving or gathering alms (whether actually begging, or under the pretext of selling or offering for sale anything), or being in any street, road, or public place for the purpose of so begging, gathering, or re- ceiving alins; 2. Who is found wandering and not having any home or settled place of abode, or proper guardianship, or visible means of subsistence; 3. Who is found destitute, either being an orphan, or hav- ing a vicious parent who is undergoing penal servitude or imprisonment; 4. Who frequents the company of reputed thieves or pros- 328 Tit.XITa.] CHILDREN — ARREST OF, ETC. ' § 607g titutes, or houses of prostitution or assignation, or dance- houses, concert saloons, theaters, or variety halls, or other places of amusement where spiritifous, malt, or vinous liquors are sold, without parent or guardian; 5. Who is engaged or used for or in any business, exhibi- tion, vocation, or purpose, in violation of any law of this state; — Must be arrested and brought before a court or magistrate, and when, upon examination before such court or magis- trate, it appears that any such child has been engaged in any of the aforesaid acts, or comes within anj^ of the aforesaid descriptions; or when, upon the examination or conviction of any person having the custody of a child, of a criminal assault upon it, the court or magistrate before whom such examination or conviction is had deems it desirable for the welfare of such child that the person so examined or con- victed should be deprived of its custody thereafter; [Order of court upon examination — Commitment of child.] Such court or magistrate, when it deems it expedient for the welfare of such child, may commit such child to an orphan asylum, corporation, or society for the prevention of cruelty to children, charitable or other institution, or make such other disposition thereof as now is or hereafter may be pro- vided by law in cases of vagrant, truant, disorderly, pauper, or destitute children. [Power to institute proceedings.] Any corporation, or- ganized under this title, or now existing, for the prevention of cruelty to children, or any officer or member thereof, may institute proceedings under this section for the welfare of any such child. History: Enacted March 21, 1905, Stats, and Amdts. 1905, pp. 591-592; see introductory note to this title. 329 §608 CIVIL CODE. [Div.I.Pt.IV. TITLE XIII. CEMETERY CORPORATIONS. § 608. How much land may be held, and how disposed of. § 609. Who are members eligible to vote and hold office. § 610. May hold personal property, to what amount. How dis- posed of. § 611. May issue bonds to pay for grounds. Proceeds of sale, how disposed of. § 612. May take and hold title to what, and how. § 613. When burial lot Inalienable. Who may not be buried in lot. § 614. Lot-owners previous to purchase to be members of the corporation. § 615. May sell lands, when. § 616. May take and hold property in trust. Application of in- come. §608. HOW MUCH LAND MAY BE HELD, AND HOW DISPOSED OF. Corporations organized to estab- lisli and maintain cemeteries may take, by purchase, dona- tion, or devise, land, not exceeding three hundred and twenty acres in extent, in the county wherein their articles of in- corporation are filed, or in an adjoining county, and may em- ploy any surplus moneys in the treasury thereof for such purpose; such lands to be held and occupied exclusively as a cemetery for the burial of the dead. The lands must be surveyed and subdivided into lots or plats, avenues, and walks, under order of the directors, and a map thereof filed in the ofifice of the recorder of the county wherein the lands are situated. [Sale, conditions, and restrictions.] Thereafter, upon such terms and subject to such conditions and restrictions, to be inserted in the conveyances, as the by-laws or directors may 330 Tit.XIII.] ELIGIBILITY TO VOTE, ETC. §§609-611 prescribe, the directors may sell and convey the lots or plats to purchasers. History: Enacted March 21, 1ST2, founded upon § 4, Act April 18, 1859, Stats. 1859, p. 282; amended March 20, 1891, Stats, and Amdts. 1891, p. 180. In eftect March 20, 1891. §609. WHO ARE MEMBERS ELIGIBLE TO VOTE AND HOLD OFFICE. Every person of full age who is proprietor of a lot or plat in the cemetery of the corpora- tion, containing not less than two hundred square feet of land, or, if there be more than one proprietor of any such lot, then such of the proprietors as the majority of joint pro- prietors designate, may, in person or by proxy, cast one vote at all elections had by the corporation for directors or any other purpose, and is eligible to any office of the cor- poration. At each annual meeting or election, the directors must make a report to the proprietors of all their doings, and of the management and 'condition of the property and concerns of the corporation. History: Enacted March 21, 1872, founded upon § 5, Act April 18, 1859, Stats. 1859, pp. 282-283. §610. MAY HOLD PERSONAL PROPERTY, TO WHAT AMOUNT. HOW DISPOSED OF. Such corpor- ations may hold personal property to an amount not exceed- ing five thousand dollars, in addition to the surplus remain- ing from the sales of lots or plats after the payments re- quired in the succeeding section. Such surplus must be dis- posed of in the improvement, embellishment, and preserva- tion of the cemetery, and paying incidental expenses of the corporation, and in no other manner. Hi.story: Enacted March 21, 1872, founded upon § 4, Act April 18, 1859, Stats. 1859, p. 282. §611. MAY ISSUE BONDS TO PAY FOR GROUNDS. PROCEEDS OF SALE, HOW DISPOSED OF. Such cor- porations may issue their bonds, bearing interest not exceed- 331 §612 - CIVIL CODE. [Div.I,Pt.IV. ing twelve per cent per annum, for the purchase of lands for their cemeteries, payable out of the proceeds of the cemetery and not otherwise; sixty per cent of the proceeds of sales of lots, plats, and graves must be applied at least every three months to the payment of the bonds and interest. Such cor- porations 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 association, 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, representatives, or assigns. History: Enacted March 21, 1872, founded upon § 7, Act April 18, 1859, Stats. 1859, p. 281, as amended Act January 13, 1864, Stats. 1863-4, p. 12, and Act April 16, 1880, Code Amdts. 1880 (C. C. pt.), p. 12. In effect April 16, 1880. §612. MAY TAKE AND HOLD TITLE TO WHAT, AND HOW. Any corporation organized to establish and maintain, or to improve, a cemetery, may take and hold title to any cemetery lot, plot or grave, devised or given to it in trust for the specific purpose of perpetually caring for the same. History; Enacted March 21, 1872, founded upon § 9, Act April 18, 1859, Stats. 1859, p. 284; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 384, held unconsti- tutional, see history, § 4 ante; amended March 26, 1901, Stats, and Amdts. 1900-1, p. 814. 332 Tit.XIII.] ALIENABILITY— BURIAL. §§613,614 §613. WHEN BURIAL LOT INALIENABLE. WHO MAY NOT BE BURIED IN LOT. Whenever an inter- ment is made in any lot or plat transferred to individual owners by the corporation, the same thereby becomes for- ever inalienable, and descends in regular line of succession to the heirs at law of the owner. When there are several owners of interests in such lot or plat, one or more may acquire by purchase the interest of others interested in the fee simple title thereof, but no one not an owner acquires interest or right of burial therein by purchase; nor must any one be buried in any such lot or plat not at the time owning an in- terest therein, or who is not a relative of such owner, or of his wife, except by consent of all jointly interested; [Alienability revived, how.] Provided, however, that when all the bodies buried in any such lot shall have been removed therefrom, with the consent of the owners of such lot, it shall be lawful for the then owners of such lot to sell and transfer the same by deed; and any such sale and transfer heretofore made is hereby declared to be valid and effectual to transfer the title to the purchaser, any law to the con- trary thereof notwithstanding. History: Enacted March 21, 1872, founded upon § 11, Act April 18, 1859, Stats. 1859, p. 284; amended February 10, 1885, Code Amdts. 1885, pp. 1-2; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 385, held unconstitutional, see history, § 4 ante. §614. LOT-OWNERS PREVIOUS TO PURCHASE TO BE MEMBERS OF THE CORPORATION. When grounds purchased or otherwise acquired for cemetery pur- poses have been previously used as a burial-ground, those who are lot-owners at the time of the purchase continue to own tjie same, and are members of the corporation, with all the privileges a purchase of a lot from the corporation con- fers. History: Enacted March 21, 1872, founded upon § 12, Act April 18, 1859, Stats. 1859, p. 285. 333 §§615,616 CIVIL CODE. [Div.I.Pt.IV. § 615. MAY SELL LANDS, WHEN. Cemetery corpora- tions may sell lands held by them upon obtaining an order for that purpose from the superior court of the county where the lands are situated. Before making the order, proof must be made to the satisfaction of the court that notice of the application for leave to sell has been given by publication in such manner and for such time as the court has directed, and that the lands are not required for and are not in use for burial purposes, and that it is for the interest of the cor- poration that such lands be sold. The application must be made by petition, and any member of the corporation may oppose the granting of the order by affidavit or otherwise. History: Enacted March 4, 1S89, Stats, and Amdts. 1SS9, p. 61. In effect March 4, 18S9. §616. MAY TAKE AND HOLD PROPERTY IN TRUST. APPLICATION OF INCOME. Any corpora- tion organized to establish and maintain, or to improve, a cemetery, may take and hold any property bequeathed, granted, or given to it in trust, to apply the proceeds or in- come thereof to any and all of the following purposes: [Purposes for which may hold.] To the improvement or embellishment of such cemetery or of any lot therein; or to the erection, renewal, repair, or preservation of any monu- ment, fence, or other structure in such cemetery; or to the planting or cultivation of trees, shrubs, or plants in or around such cemetery, or any lot therein; or to the improving, or- namenting, or embellishing of such cemetery, or any lot therein, in any other mode or manner not inconsistent with the purposes for which such cemetery was established or is being maintained. [Investment of proceeds and income, in what.] Such property and the proceeds or income thereof shall be in- vested and reinvested in bonds of the United States, or of this state, or of any municipality of this state or in first 334 Tit. XIII.] INVESTMENT OF INCOME. §616 mortgages on real estate, or in centrally located income- producing improved real estate in any city, or city and coun- ty in this state, if such investment is not repugnant to the terms of the bequest, grant or gift. History: Enacted March 26, 1895, Stats, and Amdts. 1895, p. 162; amended March 25, 1901, Stats, and Amdts. 1900-1, p. 814. 335 §§620,621 CIVIL CODE. [Div.I,Pt.IV. TITLE XIV. AGRICULTURAL, FAIR CORPORATIONS. § 620. May acquire and hold real estate, how much. § 621. Shall not contract debts or liabilities exceeding amount in treasury. § 622. Not for profit. May fix fee, etc., for membership. §620. MAY ACQUIRE AND HOLD REAL ESTATE, HOW MUCH. Agricultural fair corporations may purchase, hold, or lease any quantity of land, not exceedfng in the aggregate one hundred and sixty acres, with such buildings and improvements as may be erected thereon, and may sell, lease, or otherwise dispose of the same, at pleasure. This real estate must be held for the purpose of erecting buildings and other improvements thereon, to promote and encourage agriculture, horticulture, mechanics, manufactures, stockrais- ing, and general domestic industry. History: Enacted March 21, 1872, founded upon § 2, Act March 12, 1859, Stats. 1S59, p. 105. §621. SHALL NOT CONTRACT DEBTS OR LIA- BILITIES EXCEEDING AMOUNT IN TREASURY. Such corporation must not contract any debts or liabilities in excess of the amount of money in the treasury at the time of contract, except for the purchase of real property, for which they may create a debt not exceeding five thousand dollars, secured by mortgage on the property of the corpora- tion. The directors who vote therefor are personally liable for any debt contracted or incurred in violation of this sec- tion. History: Enacted March 21, 1872, founded upon § 5, Act March 12, 1859, Stats. 1859. p. 105. " Tit.XIV.] FEE FOR MEMBERSHIP. §622 §622. NOT FOR PROFIT. MAY FIX FEE, ETC., FOR MEMBERSHIP. Agricultural fair corporations are not conducted for profit, and have no capital stock or in- come other than that derived from charges to exhibitors and fees for membership, which charges, together with the term of membership and mode of acquiring the same, must be provided for in their by-laws. Such fees must never be greater than to raise sufficient revenue to discharge the debt for the real estate and the improvements thereon, and to de- fray the current expenses of fairs. History: Enacted March 21, 1872, founded upon § 4, Act March 12, 1859, Stats. 1859, p. 105. 337 §629 CIVIL CODE. [Div.l,Pt.IV. [Title XV, and each and every section thereof, was repealed by Act March 21, 1905 (Stats, and Amdts. 1905, p. 592), and a n£w title substituted therefor. Stats, and Amdts. 1905, pp. 59^- 594. This substituted title is an exact reproduction, with the addition of § 630a, of the substitution by the Code Commission, Act March 16, 1901 (Stats, and Amdts. 1900-1, pp. 385-386, 429), which was held unconstitutional, see history , § 4 ante.] TITLE XV. CORPORATIONS TO FURNISH LIGHT FOR PUBLIC USE. § 629. Companies must supply gas, electricity, etc., to buildings w^ithin one hundred feet of the main. § 630. When corporations may refuse to supply gas. § 630a. When corporations may refuse to supply electric current for light. § 631. Right to enter buildings for inspection. § 632. Right to shut off supply of gas or electricity. §629. COMPANIES MUST SUPPLY GAS, ELEC- TRICITY, ETC., TO BUILDINGS WITHIN ONE HUN- DRED FEET OF THE MAIN. Upon the application in writing of the owner or occupant of any building or premises distant not more than one hundred feet from any gas or steam main, or direct or primary wire of the corporation, and payment by the applicant of all money due from him, the corporation must supply gas, electricity, steam or heat as required for such building or premises, and cannot refuse on the ground of any indebtedness of any former owner or oc- cupant thereof, unless the applicant has undertaken to pay the same. If, for the space of ten days after such applica- tion, the corporation refuses or neglects to supply the gas, electricity, steam or heat required, it must pay to the appli- cant the sum of fifty dollars as liquidated damages and five dollars per day, as liquidated damages for every day such re- fusal or neglect continues thereafter. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 593; amended April 12, 1911, Stats, and Amdts. 1911, p. 887. 338 Tit.XV.] REFUSAL TO SUPPLY GAS, ETC. §§630-631 §630. WHEN CORPORATIONS MAY REFUSE TO SUPPLY GAS. No corporation is required to lay service pipe where serious obstacles exist to laying it, unless the ap- plicant, if required, deposits in advance, with the corpora- tion, a sum of money sufficient to pay the cost of laying such service pipe, or his proportion thereof. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 593; see introductory note to this title. §630a. WHEN CORPORATIONS MAY REFUSE TO SUPPLY ELECTRIC CURRENT FOR LIGHT. No cor- poration is required to construct lines for the supply of elec- tric current for light where serious obstacles exist, nor shall such corporation be required to supply such current from a direct wire at a distance too remote from the generating station, to insure a sufficient supply; nor is such corporation required to supply electric current for light from a primary wire carrying current of high voltage, unless the applicant deposit, in advance, a sum of money sufficient to pay the actual costs of such construction and for the appliances re- quired to supply electric current with safety at the proper voltage. HLstory: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 593; see introductory note to this title. § 631. RIGHT TO ENTER BUILDINGS FOR INSPEC- TION. Any owner, manager or superintendent of gas or electric light works, or agent of such owner, manager, or superintendent, exhibiting written authority, signed by such owner, manager or superintendent, or any agent of a gas or electric light corporation exhibiting written authority signed by the president or secretary thereof for such purpose, may enter any building or premises lighted with gas or electricity supplied by such owner or corporation, to inspect the gas meters or electric meters therein to ascertain the quantity of 339 §632 CIVIL CODE. [Div.I.Pt.IV. gas or electricity supplied or consumed. Every owner or occupant of such building who hinders or prevents such en- try or inspection must pay to the owner or corporation the sum of fifty dollars as liquidated damages. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 593; see introductory note to this title. §632. RIGHT TO SHUT OFF SUPPLY OF GAS OR ELECTRICITY. All gas or electric light corporations may shut off the supply of gas or electricity from any person who neglects or refuses to pay for the gas or electricity sup- plied, or the rent of any meter, pipes, wires, fittings or ap- pliances, provided by the corporation, as required by his contract; and for the purpose of shutting off the gas or elec- tricity in such case any employee of the corporation may en- ter the building or premises of such person, between the hours of eight o'clock in the forenoon and six o'clock in the afternoon, of any day and remove therefrom any property of the corporation used in supplying gas or electricity. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 594; see introductory note to this title. 340 Tit. XVI.] BUILDING, ETC., ASSOCIATIONS. §633 [The original Title XVI, Part IV. of Division One, embracing §§ 639-648, was repealed by Act March 31, 1891 (Stats, and Amdts. 1891, p. 252), except as to building and loan associations then organized and doing business, and enacting in their place and stead §§ 633-64S1/4, and subjecting existing building and loan associations theretofore existing to examination by the bank commissioners. By Act March 23, 1907 (Stats, and Amdts. 1907, p. 923, Kerr's Stats, and Amdts. 1906-7, p. 416), this title "and each and every part and section thereof, is hereby repealed, and a new title XVI is hereby enacted and substituted to take the place thereof in said code, to read as follows":] TITLE XVI. BUILDING AND COAN ASSOCIATIONS. § 633. Formation, powers, and organization. § 634. Capital stock [Dues, shares, etc.]. § 635. Retiring free shares. § 636. Maturity of stock. § 637. Loans. Prohibitions. Penalties. § 63S. Security for loans. Interest. § 63Sa. Withdrawal or surrender of stock, notice [repealed]. § 639. Arrears in payments. Defaults. Forfeitures. § 640. Purchase of real estate. § 641. Profits and losses. § 642. Withdrawals. § 642a. Receipts to be applied to demands unpaid for year. § 643. Membership. § 644. State supervision and control. § 645. Annual report. § 646. Building and loan associations must make deposit. § 647. Investment in and loans upon bonds. ■§ 648. Building and loan association. Definition of term. § 64Sa. Building and loan associations. Formation with or without guarantee. §633. FORMATION, POWERS, AND ORGANIZA- TION. Building and loan associations as hereinafter in this title deiined, shall have power to receive money and accu- mulate funds to be loaned, and to loan the same to their shareholders, investors and others; to permit shareholders 341 §633 CIVIL CODE. [Div.I.Pt.IV. and investors to withdraw part or all of their pai'ments, in- vestments or stock deposits, and to prescribe the terms and conditions of such withdrawal; to cancel shares of stock, the payments on which have been withdrawn; to receive money and to execute certificates therefor, which must specify the date, amount, rate of interest, and when the principal and interest are payable, and also the withdrawal value thereof at the end of each year; to borrow money for the purpose of making loans and of paying withdrawals and maturities; and shall have such further powers as inaj^ be specifically set forth under this title; provided, however, that no such asso- ciation shall, at any time, have or carry upon its books, for any member or investor, any demand, commercial or check- ing account or any credit to be. withdrawn upon the presen- tation of any negotiable check or draft. [Purposes for which formed.] Every such corporation hereafter formed, in setting forth for the purposes for which it is formed, shall state, in its articles of incorporation, that it is formed to encourage industry, frugality, home building, and savings among its shareholders and members; the ac- cumulation of savings; the loaning to its shareholders and members of the moneys or funds so accumulated, with the profits and earnings thereon, and the repayment to each of his savings and profits, whenever they have accumulated to the full par value of the shares, or at any time when he shall desire the same or when the corporation shall desire to re- pay the same, as it may be provided in the by-laws; and shall also state that it is formed for all the purposes specified in this title. History: Original section enacted Marcli 31, 1S91, Stats, and Amdts. 1891, pp. 252-253; see introductory not to tliis title; former section repealed and present enacted March 23, 1907, Stats, and Amdts. 1907, p. 923, Kerr's Stats, and Amdts. 1906-7, p. 416; June 10, 1913, Stats, and Amdts. 1913, p. 552. In effect August 10, 1913. Repealing- clause post § 648. 342 Tit.XVI.] STOCK— DUES, SHARES, ETC. §634 §634. CAPITAL STOCK. [DUES, SHARES, ETC.] The capital of every such corporation shall be divided into shares of the matured or par value of one hundred or tv^o hundred dollars each, as provided by the articles of incor- poration, and shall be paid in by the subscribers in the man- ner provided by the by-laws. All such payments shall be called dues. Certificates shall be issued to each shareholder on the first payment of dues by him. [Pledge shares — Free shares.] Shares pledged as security for the payment of a loan shall be called pledge shares, and all others, free shares. All shares matured and surrendered or canceled, shall become the property of the corporation and may be reissued. [Capital accumulated in certain forms.] The capital shall consist of the accumulated dues together with the appor- tioned profits of the corporation, and shall be accumulated by the issuance of shares in "installment" form and, where the by-laws shall so provide, in any or all the following forms, viz: "full paid," "pass book or juvenile," and "guar- antee." [Installment shares either "serial" or "permanent." (a) Installment shares shall be either "serial" or "permanent" in form. When issued in "serial" form the periodical dues on shares in each series shall- commence with the date of the issue of such series and the holder must pay such dues and such amounts per share and at such times as the by-laws may provide, and such payments must continue on each sliare until, with the profits allotted thereto, it reaches its matured value or is withdrawn or canceled. On all such is- sues the dividends shall be apportioned or credited equally to each share in each series. No share of a prior series shall be issued after the issue of shares in a new series, except by way of transfer. Shares issued in "permanent" form may be issued at any time and the dividends thereon may be credited in the pass books of the members. Shares of either form may be issued in "classes" with a different periodical pay- 343 §634 CIVIL CODE. [Div.I.Pt.IV. ment for each class designation, to be specified in the by- laws, and shall be issued with full participation in the profits subject to apportionment as dividends. [Full paid shares.] (b) Full paid shares shall be shares upon which a single payment of dues amounting to one hun- dred or two hundred dollars per share shall be paid at the time of subscription and upon which the holder shall be en- titled to either a full participation in the net profits or to an agreed rate of dividends not exceeding six per cent per an- num, paj'able semiannually in cash, to be specified in the body of the certificate issued. All such shares may be issued in separate classes as to participation, under regulations to be provided in the by-laws and which must be fully set forth in or upon each certificate issued. [Pass book or juvenile shares.] (c) Pass books or juven- ile shares are shares which shall participate in the apportion- ment of net profits and be credited therewith at a rate not less than seventy-five nor more than ninety per centum of the rate apportioned to installment shares, as the by-laws shall determine, and upon which the dues may be paid in at such times and in such amounts as the holder thereof may elect until said shares reach their matured value or are withdrawn. Such shares shall be withdrawable under rules to be pro- vided in the by-laws and fully set forth in the pass books is- sued. The matured value of this class of shares shall not exceed in volume twenty-five per centum of the matured value of all other shares in force. No membership fee, fine or forfeiture shall be chargeable against such shares. [Guarantee stock.] (d) Guarantee stock shall be stock, provided by the by-laws, to be set apart and sold as a fixed, permanent or guarantee capital. When any such stock has been once so set apart, sold and issued, it shall thereafter remain as a fixed, permanent and guarantee capital, and shall be subjected to all the conditions and liabilities attach- ing to the paid in capital stock of other classes of corpora- 344 Tit.X\'I.] RESERVE FUND— AMOUNT OF. §634 tions. Such guarantee stock shall protect and guarantee all other stockholders and creditors against any loss, a:nd when once paid it must be kept unimpaired. [Reserve fund ten per cent of liability.] (e) Every cor- poration specified in this title issuing installment or full paid investment certificates, or both, shall at all times have issued and fully paid for, either an amount of guarantee capital stock, or permanent non-withdrawable capital stock, or both such guarantee capital stock and permanent non-withdraw- able capital stock, or a reserve fund equal to ten per cent of the aggregate amount of its liability on its said install- ment investment certificates and full paid up investment cer- tificates; provided, however, that the aggregate of guarantee capital stock, or permanent non-withdrawable capital stock, or both such guarantee capital stock and permanent non-with- drawable capital stock, or a reserve fund, of every building and loan association issuing installment or full paid invest- ment certificates, or both, must equal the following per- centages of its investment certificate liabilities: 1. Ten per centum of any amount up to and including one million dollars. 2. Seven and one-half per centum of any amount in excess of one million dollars, up to and including two million dol- lars. 3. Five per centum of any amount in excess of two million dollars, up to and including five million dollars. [May provide majority of directors, stockholders.] (f) Corporations specified in this title, issuing guaranteed stock, may provide in their by-laws that a majority of the board of directors shall be selected from the holders of such stock. [Entrance or withdrawal fees.] (g) Every such corpora- tion shall also have power, by its by-laws, to charge an en- trance or withdrawal fee, for each share of stock it may is- sue, not exceeding one dollar on each share, [Transfer fee.] And also to charge a transfer fee, not ex- ceeding ten cents on each share, all of which fees shall be 345 §§635,636 CIVIL code. [Div.I.Pt.IV. accounted for by the corporation like other funds of the association. No other fee, charge or deduction shall ever be made or permitted to be made against any shareholder, or against any of his shares hereafter issued, or the dues paid in thereon for the purpose of creating a fund to be used in the payment of current or running expenses. (Amendment ap- proved June 10, 1913; stats. 1913, p. 553. In effect August 10, 1913.) History: Original section enacted March 21, 1891, Stats, and Amdts. 1891, p. 253; former section repealed and present section enacted March 23, 1907, Stats, and Amdts. 1907, p. 924, Kerr's Stats, and Amdts. 1906-7, p. 417; amended June 10, 1913, Stats, and Amdts. 1913, p. 553; May 3, 19i5, Stats, and Amdts. 1915, p. S36. lu effect August S, 1915. §635. RETIRING FREE SHARES. The directors may in their discretion, under the regulations prescribed by the by-laws, retire any free shares of stock, other than those of the guarantee stock, by enforcing the withdrawal thereof, but whenever the withdrawal of any shares is to be enforced, the holders thereof must be paid the amount actually paid in, and the full amount of earnings at the date of retirement; pro- vided that shares of instalment stock shall not be forced out until after they shall have become four years old. Hi.istory: Original section enacted March 31, 1891, Stats, and Amdts. 1891, p. 254; see introductory note to this title; amended "by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 386, held unconstitutional, see history, § 593 ante, former' section repealed and present enacted March 23, 1907, Stats, and Amdts. 1907, p. 925, Kerr's Stats, and Amdts. 1906-7, p. 418. In effect after July 1, 1907. Repealiug clau.se post § 648. § 636. MATURITY OF STOCK. When any stock shall have reached its matured value, payment of dues thereon shall cease. Borrowing stockholders whose loans are fully paid shall have their securities released and returned to them. Holders of free shares of stock shall be paid the matured 346 Tit. XVI.] LOANS — PROHIBITIONS— PENALTIES. ^ (^^7 value thereof out of the funds of the corporation, with inter- est at such rate as the by-laws shall provide, from the time the board of directors shall declare such shares to have been matured, until paid; but- at no time shall more than one-half of the receipts of the corporation be applicable to the pay- ment of matured shares without the consent of said board. The order of the payment of matured shares, if not other- wise determined by the by-laws, shall be in the numerical order of issuance. History: Original section enacted March 31, 1891, Stats, and Amdts. 1891, p. 254; see introductory note to this title; former section repealed and present enacted March 23, 1907, Stats, and Amdts. 1907, p. 925, Kerr's Stats, and Amdts. 1906-7, p. 418. lu effect after July 1, 1907. Repealiug clause post § 648. , i §637. LOANS. PROHIBITIONS. PENALTIES. Loans may be made upon the "mutual plan" or upon the "definite contract plan." Loans made upon the mutual plan shall be accompanied by a pledge of shares having a matured or par value equal to the face of the loan. Definite contract loans shall be repayable in a definite number of equal peri- odical installments, to be named in the note or obligation, each in an amount sufficient for the aggregate of all to repay the principal of the loan together with interest on the un- paid periodical balances, within the time and at the rate agreed upon. [Officers may not borrow.] It shall be unlawful for any director or officer of any corporation governed by this title, directly or indirectly, for himself, or as a partner or agent for others, to borrow any of the funds of such corporation, and any officer or director violating the provisions of this sec- tion shall be guilty of a felony. Any officer or director of any such corporation who consents on behalf of such cor- poration to make a loan to any officer or director of such cor- poration shall be guilty of a felony, and shall also be per- sonally liable to the corporation for the full amount thereof. 347 §638 CIVIL CODE. [Div.I,Pt.IV. [No loan on own guaranteed stock.] It shall be unlawful for any building and loan association, corporation or society operating under the provisions of this title to loan any of its funds upon any of its own guarantee stock or upon its per- manent nonwithdrawable capital stock as security. Any offi- cer or director of an association who shall make any such loan for and on behalf of any association shall be personally liable to the corporation for the full amount thereof, and shall also be deemed guilty of a felony. [No loan on mining stock.] It shall be unlawful for any building and loan association, corporation or society, operat- ing under the provisions of this title, to loan any of its funds upon the security of, or to invest any of its funds in any mining shares or mining stocks, or in the stocks or bonds ot any corporation, other than in this title provided; and any officer or director who, on behalf of any such corporation, shall make any such loan or investment, or who shall con- sent thereto, shall be personally liable to the corporation for the whole amount of any such loan or investment, and shall also be guilty of a felony. History:. Original section enacted March 31, 1891, Stats, and Amdts. 1891, pp. 254-255; see introductory note to this title; former section repealed and present enacted March 23, 1907, Stats, and Amdts. 1907, p. 926, Kerr's Stats, and Amdts. 1906-7, p. 418; June 10, 1913, Stats, and Amdts. 1913, p. 551. In effect August 10, 1913. Repealing clause post § 648. §638. SECURITY FOR LOANS. INTEREST. For every loan made a note or obligation must be executed by the borrower, secured by a first mortgage or deed of trust upon unencumbered real estate having an appraised value of not less than twenty-five per cent in .excess of the face of the loan (except such loans as may be made upon the se- curity of bonds specified in section six hundred and forty- seven); or in lieu of a mortgage or deed of trust, loans to the extent of not exceeding ninety per cent of the then with- drawable value, may be made upon the pledge of free shares 348 Tit.XVL] ARREARS AND DEFAULTS, ETC. §§ 638a, 639 or certificates as security for their repayment. The board of directors may from time to time fix the rate of interest to be charged on loans. A borrower may at any time repay his loan together with interest or arrears due thereon and upon the surrender of the shares, or certificate pledged as security therefor. History: Original section enacted March 31, 1891, Stats, and Amdts. 1891, p. 255; amended February 25, 1897, Stats, and Amdts. 1897, p. 30; March 11, 1901, Stats, and Amdts. 1900-1, p. 268; see introductory note to this title; former section repealed "and present enacted March 23, 1907, Stats, and Amdts. 1907, p. 926, Kerr's Stats, and Amdts. 1906-7, p. 419; June 10, 1913, Stats, and Amdts. 1913, p. 551. In effect August 10, 1913. Repealing clause post § 648. § 638a. WITHDRAWAL OR SURRENDER OF STOCK, NOTICE [repealed]. Hi.story: Original section enacted March 22, 1905, Stats, and Amdts. 1905, p. 753; repealed March 23, 1907, Stats, and Amdts. 1907, p. 923. In effect July 1, 1907. §639. ARREARS IN PAYMENT. DEFAULTS. FOR. FEITURES. Whenever any nonborrowing member shall be six months in arrears in the payment of his dues upon free shares, the secretary may give him notice thereof in writing, and a statement of his arrearages, by mailing the same to him at his last post-office address given by him to the asso- ciation; and if he shall not pay all arrearages within two months thereafter, the board of directors may, at their op- tion, declare his shares forfeited, and at the time of such for- feiture, 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 borrower shall be three months in arrears in the payment of his dues or interest or loan installments, the whole loan shall become due at the option of the board of directors, and 349 §§640.641 CIVIL CODE. [Div.I.Pt.IV. they may proceed to enforce collection upon the securities held by the association. The withdrawal value, at the time of exercising such option, of all shares pledged as collateral security, shall be applied to the payment of the loan, and said shares from that time shall be deemed surrendered to the association and canceled. History: Original section enacted March 31, 1891, Stats, and Amdts. 1891, p. 255; see introductory note to this title; former section repealed and present enacted March 23, 1907> Stats, and Amdts. 1907, p. 927, Kerr's Stats, and Amdts. 1906-7, p. 419. lu effect after July 1. 1907. Repealing clause post § 648. §640. PURCHASE OF REAL ESTATE. Any such as- sociation may purchase at any sale, public or private, any real estate upon which it may have a mortgage, judgment, lien, or other encumbrance, or in w^hich it may have an in- terest, and may sell, convey, lease, or mortgage the same at pleasure to any person or persons. History: Original section enacted March 31, 1891, Stats, and * Amdts. 1891, p. 255; see introductory note to this title; former section repealed and present enacted March 23, 1907, Stats. and Amdts. 1907, p. 927, Kerr's Stats, and Amdts. 1906-7, p. 420. fn effect after July 1, 1907. Repealing clau.se post § 648. §641. PROFITS AND LOSSES. Profits and losses shall be apportioned at least annually, and shall be apportioned to all shares in each class at the time of such apportionment, according to the actual or book value thereof. If the guar- antee capital herein provided for, if any there be, together with the reserve fund, or if the reserve fund, where there be no guarantee capital, shall not equal five per cent of the out- standing loans at the time of each apportionment of profits, the directors shall set aside, as a reserve fund, not less than five per cent of the net profits accruing since the last prior apportionment, and shall continue so to do until said fund shall amount to at least five per cent of the loans in force, at which figure said fund shall thereafter be maintained. Said 350 Tit.XVI.] DIVIDEND FUND — WITHDRAWALS. § 642 reserve fund shall at all times be available to meet losses arising from any source not heretofore provided to be as- sumed by the guarantee capital. [Dividend fund — Reserve.] Every such corporation hav- ing a paid-in guarantee capital stock, may provide in their by-laws, that an amount not exceeding one per cent per an- num on the average loans in force, shall be set aside from and out of the net profits, at each annual distribution thereof, — or a proportionate amount at each semi-annual distribution, — from vi^hich to declare dividends on and provide a reserve fund that shall be specially applicable thereto. At least one- tenth of the amount so set aside shall be carried to such re- serve fund until the same shall amount to at least fifty per cent of the paid-in guarantee stock. History: Original section enacted March 31, 1S91, Stats, and Amdts. 1891, p. 255; see introductory note to this title; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 387, held unconstitutional, see history, § 593 ante; former section repealed and present enacted March 23, 1907, Stats, and Amdts. 1907, p. 927, Kerr's Stats, and Amdts. 1906-7, p. 420. lu effect after July 1, 1907. Repealing clause post § 648. § 642. WITHDRAWALS. A stockholder or investor, de- siring to withdraw from any such corporation or to surren- der a part or all of his stock, or investment certificate, may do so by giving thirty days notice, in writing, of his inten- tion or desire so to do. On the expiration of such notice, he is entitled to receive the full amount paid in upon the stock or investment certificate surrendered, exclusive of the en- trance or withdrawal fee, together with such proportion of the earnings thereon as the bj'-laws may provide, or as maj' be fixed by the board of directors; but not more than one- half of the monthly receipts in any one month must be ap- plied to withdrawals for that month, without the consent of the board of directors, and no stockholder must be permitted to withdraw whose stock is pledged to the corporation as security for a loan, until such loan is fully paid. All with- 351 §642a CIVIL CODE. [Div.I.Pt.IV. drawals must be paid in succession in the order that the no- tices of intention are given. Whenever the demands of withdrawing stockholders or investors exceed the money ap- plicable to their payment, the notices of intention to with- draw must be registered in the order of filing and payments thereon must be made in succession, in the order that such notices were filed and registered. The board of directors may permit the withdrawal of a part of the accumulations to the credit of a stockholder or member, on shares of instalment stock not issued in serial form, without thereby reducing the number of shares held by him. History: Original section enacted March 31, 1S91, Stats, and Amdts. 1891, pp. 255-256; see introductory note to this title; former section repealed and present enacted Marcli 23, 1907, Stats, and Amdts. 1907, p. 927, Kerr's Stats, and Amdts. 1906-7, p. 421. In effect after July 1, 1907. Repealing clause post § 648. §642a. RECEIPTS TO BE APPLIED TO DEMANDS UNPAID FOR YEAR. Whenever an application for with- drawal of free shares or certificates shall have been on file, or the payment of matured shares demanded, and either shall have remained unpaid for a period of one year, all the re- ceipts of the association from dues, interest, premium, loans repaid, and the proceeds of all other investments, shall, after the payment of expenses and general indebtedness, be applied toward the payment of withdrawals and maturities; and the board of directors or the official vested by law with powers of state supervision and license maj' direct that such pay- inents shall be made upon a rateable and proportionate basis. [Demands unpaid for two years; business may be taken over.] Whenever such applications or demands, whether heretofore or hereafter made, have been on file and remain unpaid in whole or in part for more than two years the offi- cial vested by law with powers of state supervision and li- cense may, in his discretion, forthwith take possession of the 352 Tit.XVI.] MEMBERSHIP — CONTROL. §§ 543^ 644 property and business of such association, and retain such possession until its affairs be finally liquidated in the manner provided by law for the liquidation of associations by him. Historj': Enactment approved April 28, 1915, Stats, and Amdts. 1915, p. 239. In effect August 8, 1915. §643. MEMBERSHIP. Any person of full age and sound mind may become a member of an association by tak- ing one or more shares therein and subscribing to the by- laws, and annexing to his signature his post-office address. A minor may hold shares in the name of a parent, guardian, or next friend, as trustee. The shares of stock in any such corporation held by any person, to the extent of one thou- sand dollars, shall be exempt from execution. Histor>': Original section enacted March 31, 1891, Stats, and Amdts. 1891, p. 256; see introductory note to this title; amended by Code Commission, Act March 16, 19'01, Stats, and Amdts. 1900-1, p. 387, held unconstitutional, see history, § 593 ante; former section repealed and present enacted March 23, 1907, Stats, and Amdts. 1907, p. 928, Kerr's Stats. 'and Amdts. 1906-7, p. 421. In effect after July 1, 1907. Repealing clause post §648. §644. STATE SUPERVISION AND CONTROL. All building and loan associations, as in this title defined, doing business in this state, shall be under the supervision and con- trol of such official or officials as are by law vested there- with; and except in the manner provided in this title, no cor- poration, firm, or association shall conduct or carry on the business of accumulating the savings of its shareholders, members, or investors, and loaning such accumulations to them, in the manner of building and loan associations. History: Original section enacted March 31, 1891, Stats, and Amdts. 1891, p. 256; see introductory note to this title; former section repealed and present enacted March 23, 1907, Stats, and Amdts. 1907, p. 928. In effect after July 1, 1907. Repealing clause post § 648. " 353 §§645,646 CIVIL code. [Div.I,Pt.IV. § 645. ANNUAL REPORT. Every association organized under the provisions of this title, and every other association doing a similar business, shall annually make a full report, in writing, of the affairs and condition of such corporation, within thirty days after its annual meeting, to the official or officials vested with powers of state supervision and license. Such reports shall be verified by the oath of the officers making the same, and a copy of the same shall be delivered to every stockholder, from the office of the corporation, who may call for such report. [Further reports.] Every association shall make any further reports which the said officials may require, and in such form and as to such matters relating to the conduct of the business of the association as such official or officials may designate. [False statements in reports perjury, when.] Any wilfully false statement in making and verifying said report shall be perjury. Any such association which shall fail to furnish the said official or officials any such report required, within thirty days after demand, shall forfeit the sum of ten dollars per day for every day such report shall be delayed or withheld, which may be recovered in an action brought by the attor- ney-general in the name of the people of this state; and all moneys so recovered shall be paid to the treasurer of this state, who shall pay the same into such fund as may be pro- vided by law, for the purposes of the official or officials vested with power of supervision and license. History: Original section enacted March 31, 1S91, Stats, and Amdts. 1891, pp. 256-257; see introductory note to this title; former section repealed and present enacted March 23, 1907, Stats, and Amdts. 1907, p. 928, Kerr's Stats, and Amdts. 1906-7, p. 421. lu effect after July 1, 1907. Repealing clause post § 648. §646. BUILDING AND LOAN ASSOCIATIONS MUST MAKE DEPOSIT. GUARANTEE FUND. Every build- ing and loan association, and every other corporation, asso- ciation or society organized under and by virtue of the laws 354 Tit.XVI.] DEPOSIT— GUARANTEE FUND. §646 of any other state or territory or of any foreign country, for the purpose of conducting and carrying on a business of a character similar to that authorized by this title, or whose by-laws, rules, prospectus, contracts or methods of business provide for the conducting or carrying on the business of accumulating the periodical payments or savings of its share- holders, members or investors in the manner of building and loan associations, or as authorized and provided in this title, desiring to enter the State of iCalifornia for the transaction of business or for selling its bonds, debentures, certificates, shares of stock, shares of membership, contracts or other similar securities, must first comply with the requirements of sections four hundred five and four hundred eight of the Civil Code and immediately thereafter deposit with the offi- cial vested by law with state supervision and license not less than fifty thousand dollars in lawful money of the United States or in bonds of the United States or of the State of California, or of any county, municipality or school district of said 'State, or of any public utility corporation, or of any irrigation district in. said state, the bonds issued by which district are legal investments for savings banks or any notes or bonds secured by mortgage or deed of trust payment of which is guaranteed by a policy of mortgage insurance, or mortgage participation certificates, issued by a mortgage in- surance company in accordance with the provisions of chap- ter eight, title two, part four of division first of the Civil Code or in lieu thereof promissory notes secured by first mortgages or deeds of trust upon real estate located within this state, satisfactory to the official vested by law with state supervision and license of building and loan associations, all duly assigned or endorsed in blank, to be held by the said official as a guarantee fund for the protection and indemnity of residents of the State of California who shall invest in any of its bonds, debentures, shares, contracts, agreements or other securities, or with whom it shall do business. [License.] It must also procure from the official vested by law with state supervision and license of building and 355 §646 CIVIL CODE. [Div.I,Pt.IV. loan associations, the license provided for building and loan and similar corporations and associations, paying the statu- tory fee therefor before entering upon the transaction of business, and annually renew the same. [Securities may be substituted.] With the consent of the said official vested by law 'with state supervision and license any of the securities deposited as herein provided may be withdrawn at any time upon the substitution and deposit of others of form and character herein specified 'and of like or greater net value, so long as the aggregate net convertible value of all equals or exceeds the amount named herein. The fund thus created is not to be foreclosed or realized upon except for the liquidation of a final judgment in favor of resi- dents of California who were investors in any of the above mentioned securities of such foreign company, corporation or association, and then onlj^ after certified proof thereof has been filed with the custodian. Except as above provided securities deposited as herein specified shall not be withdrawn until satisfactory proof of the liquidation of all liabilities to residents of California, approved by the official A^ested by law with state supervision and license, shall be filed with the custodian, when all may then be withdrawn. [Penalty for non-compliance.] Any person or persons who shall be found in the state, as principal, agent, solicitor, or in any other capacity, soliciting or conducting the busi- ness of selling, disposing of, or taking or soliciting subscrip- tions for the sale of any of the forms of bonds, debentures, shares, contracts, agreements or other securities of any such foreign company, corporation or association which has not complied with all the requirements of this section shall be deemed guilty of a misdemeanor punishable, upon convic- tion, by a fine of not less than one hundred nor more than one thousand dollars or by imprisonment in the county jail " for not less than one nor more than twelve months, or by both such fine and imprisonment. 356 Tit.XVL] INVESTMENTS, ETC., ON BONDS. §§ 647, 648 History: Original section enacted Miarch 31, 1891, Stats, and Amdts. 1891, p. 257; former section repealed and present section enacted March 23, 1907, Stats, and Amdts. 1907, p. 929, Kerr's Stats, and Amdts. 1906-7, p. 422; amended May 19, 1915, Stats, and Amdts. 1915, p. 573. In effect August 8, 1915. § 647. INVESTMENT IN AND LOANS UPON BONDS. Any building and loan association may invest in or loan upon bonds of the United States, of the State of California, or of any county, municipality or school district of said state, or of any public utility corporation, and may also invest in or loan upon notes or bonds secured by mortgage or deed of trust, payment of which is guaranteed by a policy of mort- gage insurance, or mortgage participation certificates, issued by a mortgage insurance company in accordance vi^ith the provisions of chapter VIII, of title II of part IV of division first of the Civil Code, the total of which investments at any time shall not exceed twenty-five per centum of the assets of such association; [Approval by official vested with power of supervision.] Provided, however, that any such loan or investment made by such association must be approved by the official, or offi- cials, vested with the powers of supervision and license. History: Original section enacted March 31, 1891, Stats, and Amdts. 1891, p. 257; repealed and present section enacted March 23, 1907, Stats, and Amdts. 1907, p. 929, Kerr's Stats, and Amdt.=. 1906-7, p. 423; amended May 3, 1915, Stats, and Amdts. 1915, p. 317. In effect August 8, 1915. §648. BUILDING AND LOAN ASSOCIATION. DEFINITION OF TERM. The name "building and loan association" as used in this title shall include: — Firstr Corporations formed for the purpose of receiving money from, and loaning money to, their members only. Second. Corporations, associations, companies, copartner- ships, and individuals transacting the business of issuing or selling bonds, debentures, certificates, shares of stock, or 357 §648a CIVIL CODE. [Div.I,Pt.IV. other papers, by whatever name said instruments may be designated, whether said instruments are issued for money paid in advance or for money to be paid in installments, but with an intent, either implied or expressed, that the proceeds or accumulated installments thereof and thereon are to be withdrawable or repayable, with accumulated profits, at some future fixed, or indefinite date of maturity; provided always, that this section does not include persons, copart- nerships or corporations engaged in any kind of banking business. [In effect when.] Sec. 2. This act shall take effect and be in force from and after its passage. Act of March 23, 1907, contained the following sections: Status of present contracts. Sec. 2. Nothing contained in this act shall alter, impair, or render void any certificate of stock heretofore issued or contract heretofore made by any such corporation. [Repealing clause. Sec. 3. All acts in conflict with this act are hereby repealed.] History: Enacted March 31, 1S91, Stats, and Amdts. 1891, p. 257; former section repealed and present section enacted Marcli 23. 1907, Stats, and Amdts. 1907, p. 929, Kerr's Stats, and Amdts. 1906-7, p. 423; amended March 22, 1909, Stats, and Amdts. 1909, p. 609. §648a. BUILDING AND LOAN ASSOCIATIONS. FORMATION WITH OR WITHOUT GUARANTEE. Building and loan associations may be formed under this title with or without guarantee or other capital stock, with all the rights, powers and privileges and subject to all the restrictions and liabilities set forth in this title. If formed without any capital stock or with guarantee capital stock only, the working capital may be accumulated by the issue ot membership shares, units or certificates having a paid up or ultimate matured installment value of one hundred or two hundred dollars each, and entitled to all the rights, powers and privileges and subject to all the restrictions and liabili- 358 Tit.XVI.] WITHOUT GUARANTEE. § 648a ties provided in this title for shares of authorized capital stock of a similar class. Any building and loan association heretofore formed may re-incorporate under the provisions of this section and may substitute membership shares, units er certificates of similar classes for its outstanding or author- ized shares of capital stock, other than guarantee capital stock, by the unanimous vote of its board of directors and by a vote or written assent of the stockholders representing at least two-thirds of the subscribed capital stock and by filing amended articles of incorporation with the county clerk of the countj^ in which the corporation's principal place of business is located and a copj^ of said amended articles, certified by such count}- clerk, in the office of the secretary of state. History: Enacted March 25, 1909. Stats, and Amdts. 1.909, p. 721. 359 §§649,650 CIVIL CODE. [Div.I.Pt.IV. [This is a new title added by Act March 14, 1S85, Stats, and Amdts. 1885, p. 132.] TITLE XVII. ♦ COLLEGES AND SEMINARIES OF LEARNING. § 649. Articles of incorporation; contents of. § 650. Board of trustees; classification of. § 651. Existing corporations may reincorporate under tliis act. §649. ARTICLES OF INCORPORATION; CON- TENTS OF. Any number of persons who may desire to establish a college or seminary of learning may incorporate themselves as provided in this part, except that in lieu of the requirements of section two hundred ninety, the articles of incorporation shall contain: L The name of the corporation. 2. The purpose for which it is organized. 3. The place where the college or seminary is to be con- ducted. 4. The number of its trustees, which shall not be less than five nor more than thirty and the names and residences of the trustees. The term for which the trustees named and their successors are to hold office may also be stated. If it is desired that the trustees, or any portion of them, shall be- long to any organization, society, or church, such limitation shall be stated. 5. [Capital stock.] If said corporation is to have capital stock, the amount of its capital stock and the number of shares into which it is divided, and the amount actually sub- scribed and by whom. History: Enacted March 14, 1SS5, Stats, and Amdts. 1885, p. 133; amended April 2, 1911, Stats, and Amdts. 1911, p. 583. §650. BOARD OF TRUSTEES; CLASSIFICATION OF. Unless otherwise provided in the articles of incorpora- 360 Tit.XVII.] TRUSTEES— QUORUM— VACANCIES. §650 tioii 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. [Quorum.] A majority of the trustees shall constitute a quorum for the transaction of business, except when the number of trustees exceeds thirteen they may, in the by- laws, provide that not less than seven shall constitute a quo- rum. The office of the corporation shall be at the college or seminary or at" such place as shall be designated by the board of trustees. [Powers.] The trustees shall have the power: [To elect president.] 1. To elect, by ballot, annually one of their number as president of the board. [To fill vacancies.] 2.. Upon the death, reriioval out of the state, or other vacancy in the office, or expiration of the term of any trustee, to elect another in his place who shall hold office for the time and under the conditions prescribed in the by-laws of the corporation; 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 nominations shall be considered by the board, but it may reject any or all such nominations, and of its, own motion appoint others. 3. To elect additional trustees; provided, the whole num- ber elected shall never exceed thirty at any one time. 4. To declare vacant the seat of any trustee who shall ab- sent himself from eight succeeding meetings of the board. 5. [To hold property.] To receive and hold, by purchase, gift, devise, bequest, or grant, real or personal property for educational purposes connected with the corporation, or for the benefit of the institution. 6. To sell, 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 disci- pline to be observed in the college or seminary. 361 §651 CIVIL CODE. [Div.LPt.IV. 8. To appoint a president of the college or seminary, who shall hold his office during the pleasure of the trustees. 9. To appoint such professors, tutors, and other officers as they shall deem necessary, who shall hold their offices during the pleasure of the trustees. 10. To grant such litferary honors as are usually granted by any university, college, or seminary of learning in the United States and in testimony thereof to give suitable di- plomas under their seal, and the signature of such officers of the corporation and the institution as they shall deem expe- dient. 11. To fix salaries of the president, professors, and other officers and employees of the college or seminary. 12. Subject to the consent and approval of the organiza- tion, society or church to which it is required by the articles of incorporation that said trustees shall belong, to make all by-laws and ordinances necessary 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 ordinances shall conflict with the constitution or laws of the United States, or of this state. History: Enacted March 14, 1885, Stats, and Amdts. 1885, p. 133; amended March 20, 1909, Stats, and Amdts. 1909, p. oSS; June 6, 1913, Stats, and Amdts. 1913, p. 400. In effect August 10, 1913. §651. EXISTING CORPORATIONS MAY REINCOR- PORATE UNDER THIS ACT. Any educational corpora- tion, or body claiming to be such, now existing, may, by a unanimous vote of those of its trustees present at a special meeting called for that purpose, and of which due notice shall be given to each trustee, convey all its property, rights, and franchises, to a corporation organized under this title. The fact that due notice of the meeting was given to each trus- tee shall be conclusively proven by the entries in the minutes 362 Tit.XVII.] REINCORPORATION UNDER ACT. §651 of the corporation or body making the conveyance. Said minutes shall be certified to be correct by the president and secretary. History: Enacted March 14, 1885, Stats, and Amdts. 1885, p. 134. In effect March 14, 1885. 363 §652 CIVIL CODE. [Div.I.Pt.IV. [A new title added by Act February 23, 1893, Stats, and Amdts. 1893, p. 4.] TITLE XVIII. CONSOLIDATION OF COLLEGES AND INSTITUTIONS OF HIGHER EDUCATION. § 652. Societies and organizations authorized to consolidate. § 653. Specific grants, etc., must not be diverted. §652. SOCIETIES AND ORGANIZATIONS AU- THORIZED TO CONSOLIDATE. Whenever any benev- olent, religious or fraternal organization or society, having a grand lodge, assembly, conference or other legislative or representative head in the State of California, 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, desire to consolidate such institutions under one manage- ment, ^uch organization or society shall be and is hereby authorized to consolidate such institutions under one manage- ment by complying with the following provisions: [New corporation — Trustees — Term of office.] Such grand lodge, assembly, conference or other legislative or represen- tative head having authorizd a consolidation -of its institu- tions, a new corporation shall be formed. The board of trus- tees of the new corporation shall at first consist of the per- sons constituting the boards of trustees of the several insti- tutions, respectively thus consolidating, and others; provided the number of trustees shall not exceed forty-five. The board of trustees shall be so classified that the term of office of one-third of its number shall expire each year; the suc- cessors of such trustees, as their terms expire, shall be elected by such grand lodge, assembly, conference or other legislative or representative head, at its annual meeting. 364 Tit.XVIII.] REDUCTION OF BOARD — GRANTS. §653 The said board of trustees shall report annually to the grand lodge, conference, assembly or other legislative oi representative head controlling it, the condition of affairs of such corporation, and the amount and manner of its receipts and expenditures. [Reduction of board of trustees — Limitation.] After the two or more colleges or institutions of higher education un- der the patronage of any benevolent, religious or fraternal organization or society, having a grand lodge, assembl}^ conference or other legislative or representative head in the State of California shall have become consolidated as here- inabove directed or specified, the board of trustees of the new corporation, consisting at first of the persons consti- tuting the boards of trustees of the several institutions, respectively thus consolidated, may be reduced in number after said board of trustees shall have transacted the busi- ness of said corporation for a period of five years after such consolidation. Said number shall be reduced by the grand lodge, assembly, conference or other legislative or represen- tative head of said colleges or institutions of higher educa- tion in the following manner, viz.: At any annual session of such grand lodge, assembly, conference or other legisla- tive or representative head, there shall be dropped from the number of trustees to be elected at that session of such grand lodge, assembly, conference or other legislative or reprsen- tative head such a number of trustees as those present at such session shall determine, provided however, that at no time shall the number of trustees composing such board be less than fifteen. History: Enacted February 23, 1S93, Stats, and Amdts. 1893, p. 4; amended March 9, 1895, Stats, and Amdts. 1895, p. 40; March 15, 1909, Stats, and Amdts. 1909, p. 385. §653. SPECIFIC GRANTS, ETC., MUST NOT BE DI- VERTED. The several boards of trustees of the institutions thus consolidated shall be and are hereby authorized and di- 365 §653 CIVIL CODE. [Div.I.Pt.IV. rected to transfer all property, real and personal, held by them, to the new corporation, as herein constituted, together with all powers, privileges, and authority conferred upon or enjoyed by them under their respective charters or acts of incorporation. The new corporation receiving such prop- erty shall assume all indebtedness and liabilities of such in- stitutions as are thus consolidated, but shall not transfer such property from one location to another, except by an affirmative vote of not less than three fourths of the said board of trustees of the new corporation, nor divert specific grants, donations, or bequests from the purposes for which such grants, donations, or bequests were made. That after the boards of trustees have conveyed the property, real and personal, of the various institutions to the new corporation, as hereinabove provided, and the same has been accepted by the said new corporation, then the franchises held bj' the corporations thus consolidating shall cease, and the said corporations shall be thereby dissolved. Hi-story: Enacted February 23, 1893, Stats, and Amdt.s. 1S93, p. 4; amended March 9, 1895, Stats, and Amdts. 1895, p. 40. 366 Tits. XIX, XX.] CO-OPERATIVK ASSOCIATIONS. § 653a [A new title added by Act March 21, 1905, Stats, and Amdts. 1905, p. 594.] TITLE XIX. CO-OPERATIVE BUSINESS CORPORATIONS. § 653a. Purposes for which may be formed. § 653a. PURPOSES FOR WHICH MAY BE FORMED. Co-operative business corporations ma}^ be formed for do- ing any lawful business, and dividing a portion of their profits among persons other than their stockholders. Each of such corporations maj', m its by-laws, in addition to the matters specified in section three hundred and three, pro- vide the amount of profits which must be divided among persons other than its stockholders, and the manner in which and the persons among whom such division may be made. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 594. [A new title added by Act March 21, 1905, Stats, and Amdts. 1905, pp. 595-599.] TITLE XX. CO-OPERATIVE BUSINESS ASSOCIATIONS. § 653b. Formation and purposes of. § 653c. Rights, interests, and liabilities of members. § 653d. • The articles of association. § 653e. The by-laws. § 653f. Execution against the association or its members. § 653g. Purpose of the association, how may be altered. § 653h. Powers of the association. § 653ha. Method of calling meetings of unincorporated societies, etc. § 653i. Consolidation of associations. § 653j. Dissolution and winding up of association. 367 §§653b,653c civil code. [Div.I,Pt.IV. § 653k. Quo warranto to inquire into the right of an associa- tion to do business. § 6531. What corporations or associations are not affected by this title. §653b. FORMATION AND PURPOSE OF. Five or more persons may form a co-operative association for the transaction of any lawful business, whether for profit or not, or for the promotion of any educational, industrial, benevolent, social, or political purpose. Such association must not have any capital stock, but must issue membership certificates to each member. [Certificate of membership — Transfer.] Such certificate cannot be assigned, so that the assignee can, by its transfer, become a member of the association, but, by a resolution of its board of directors, such certificate may be transferred, and the transferee made a member in lieu of the last former holder. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 595. §653c. RIGHTS, INTERESTS, AND LIABILITY OF MEMBERS. In such association the rights and interests of all members are equal, and no member can have or acquire a greater interest therein than any other member has. At every election held pursuant to the by-laws each member must be entitled to cast one vote and no more. [Who are eligible to membership.] All persons above the age of eighteen years, regardless of sex, are eligible to mem- bership, if otherwise qualified and elected as the by-laws may provide. The by-laws must provide for the amount of the indebtedness which such association may incur. [Liability of members.] And no member shall be re- sponsible individually, or personally liable, for any of the debts or liabilities of the association in excess of his pro- portion of such indebtedness; but in case of the failure and insolvency of such association, may be required to pay any unpaid dues or instalments which have, before such insolv- 368 Tit.XX.] ARTICLES— BY-LAWS. §§ 653d, 653e ency, become due from such member to the association, pur- suant to its by-laws. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 595. §653d. THE ARTICLES OF ASSOCIATION. Every association formed under this title must prepare articles of association, in writing, stating: The name of the association, the purpose for which it is formed, the place where its principal business is to be transacted, the term for which it is to exist, not to exceed fifty years, the number of the directors thereof, and the names and residences of those selected for the first year, the amount which each member is to pay upon admission as membership fee, and that each member signing the articles has actually paid in such sum, and that the interest and right of each member therein is to be equal. [Subscription and acknowledgment; filing.] Such articles of association must be subscribed bj' the original associates or members, and acknowledged by each before some per- son competent to take an acknowledgment of a deed in this state. Such articles so subscribed and acknowledged must be filed in the office of the clerk of the county wherein the principal business of the association is to be transpcted, * and a copy thereof certified by such clerk, with the secre- tary of state, who must thereupon issue his certificate in the form, and having the effect prescribed in section two hundred and ninety-six. History: Enacted March 21, 1905. Stats, and Amdts. 1905, pp. 595-596. § 653e. THE BY-LAWS. Every association formed un- der this title must, within forty days after it so becomes an association, adopt a code of by-laws for the government and management of the association, not inconsistent with this title. A majority of all the associates is necessary to the adoption of such by-laws, and the same must be written 369 §653e CIVIL CODE. [Div.I.Pt.lV. in a book, and subscribed by the members adopting the same, and the same cannot be amended or modified except 'by the vote of a majority of all the members, after notice of the proposed amendment, given as the by-laws may pro- vide. [What by-laws may provide — Number, terms, and com- pensation of officers.] Such association may, by its by- laws, provide for the time, place, and manner of calling and conducting its meetings; the number of directors, the time of their election, their term of ofifice, 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 directors, and how many thereof are necessary to the exercise of the powers of such directors, which must be at least a majority; the compensation of any of the directors! or of any officer; the number of the officers, if any, other than the directors, and their term of office; the mode of removal, and the method of filling a vacancy: the mode and manner of con- ducting business; the mode and manner of conducting elections, and may provide for voting by ballots forwarded by mail or otherwise; [Manner of conducting elections; qualifications and suc- cession; expulsion.] Provided the method secures the secrecy of the ballot; the mode and manner of succession of membership, and the qualifications for membership, and on what conditions, and when membership must cease, and the mode and manner of expulsion of a member, subject to the right of an expelled member to have the board of directors appraise his interest in the association in either money, property, or labor, as the directors may deem best, and to have the money, property, or labor so awarded him paid, or delivered, or performed within forty days after expulsion; [Amount of membership fees, dues, etc.] The amount of membership fee, and the d\ies, instalments, or labor which each member must be required to pay or perform, if any, 370 Tit. XX. 1 WITHDRAWALS — PROFITS. § 653f and the manner of collection or enforcement, and for for- feiting or selling of membership interest for non-payment or non-performance; [Withdrawal; ascertainment of interest.] The method, time, and manner of permitting the withdrawal of a member. if at all, and, how his interest must be ascertained, either in money or property, and within what time the same must be paid or delivered to such member; the mode and man- ner of ascertaining the interest of a member at his death, if his legal representatives or none of them desire to suc- ceed to the membership, and whether the same must be paid to his legal representatives in mone}', or property, or labor, and within what time the same must be paid, or de- livered, or performed; such other things as may be proper to carry out the purpose for which the association was formed. [Division of profits.] The by-laws must provide for the time and manner in which profits must be divided among the members, and what proportion of the profits, if an}-, must be added to the common property or funds of the associa- tion. But the by-laws may provide that the directors may suspend or pass the payment of any such profit, or instalment of earnings, at their discretion. [Recording and filing by-laws.] The by-laws anrt all amendments must be recorded in a book and kept in the ofifice of the association, and a copy, certified by the di- rectors, must be filed in the office of the county clerk where the principal business is transacted. Hi-story: Enacted March 21, 190.o, Stats, and Amdts. 1905, pp. 596-597. §653f. EXECUTION AGAINST THE ASSOCIATION OR ITS MEMBERS. The property of such association is sul;)ject to attachment and execution for its lawful debts. The interest of a meml)er in such association, if sold upon execution, or any judicial or governmental order what- 371 §§653g, 653h civil code. [Div.I,Pt.IV. ever, cannot authorize the purchaser to have any right, ex- cept 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 choose to pay or settle the matter after such sale, they may either cancel the membership, and add the interest thus sold to the assets or common property of the association, or reissue the share or right to a new member upon proper payment there- for, as the directors may determine. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 597. §653g. PURPOSE OF THE ASSOCIATION, HOW MAY BE ALTERED. The purpose of the business may be altered, changed, modified, enlarged, or diminished by a vote of two-thirds of all the members, at a special election to be called for such purpose, of which notice must be given the same as the by-laws provide for the election of directors. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 597. §653h. POWERS OF THE ASSOCIATION. Every as- sociation formed under this title has power of succession by its associate name for fiftj' years; in such name to sue and be sued in any court; to make and use a common seal, and alter the same at pleasure; to receive by gift, devise, or purchase, hold, and convey real and personal property, as the purposes of the association may require; to appoint such subordinate agents or ofificers as the business may re- quire; to admit associates or members, and to sell or for- feit their interest in the association for default of instal- ments, or dues, or work, or labor required, as provided by the by-laws; to enter into any and all lawful contracts or obligations essential to the transaction of its affairs, for the 372 Tit.XX.] CALLING MEETINGS. § 653ha purpose for which it was formed, and to borrow money, and issue all such notes, bills, or evidences of indebtedness or mortgage as its by-laws may provide for; to trade, bar- ter, buy, sell, exchange, and to do all other things proper to be done for the purpose of carrying into effect the objects for which the association is formed. History: Enacted March 21, 1905, Stats, and Amdts. 1905, pp. 597-59S. §653ha. METHOD OF CALLING MEETINGS OF UN- INCORPORATED SOCIETIES, ETC. In all cases where neither the constitution nor by-laws of an unincorporated society, organization or association fixes the manner of calling meetings of such unincorporated society, organiza- tion or association, or where the ofificer or officers, or per- son or persons whose duty it is under the said constitu- tion or by-laws to call a meeting thereof fails, neglects and refuses to call such meeting, a meeting thereof may be called by twelve members thereof in the manner fol- lowing: By signing a call for such meeting, in which call the time and place of such meeting shall be stated, and giving two weeks' notice of such meeting by publication of such call in some newspaper of general circulation pub- lished in the county or city and county where the last pre- ceding meeting of such society, organization or association was held, or if no such newspaper is published in such county or city and county, then in a newspaper of general circulation published in an adjoining county; provided, however, that in the event the by-laws of any such unincorporated society, organization, or association specify a particular method or manner of giving notice of a meeting, such provision shall be followed, in addition to the method hereinabove pro- vided, in a notice of any meeting given by said twelve members. Hi.story: Enactment approved May 26, 1915, Stats, and Amdts. 1915, p. S5T. In effect August S, 1915. 2,72> §§653i, 653j civil code. [Div.I.Pt.IV. §653i. CONSOLIDATION OF ASSOCIATIONS. Two or more associations formed and .existing under this title, or under any pre-existing law authorizing their formation for the same purposes, may be consolidated, upon sucn terms, and for such purposes, and by such name, as may be agreed upon, in writing, signed by two-thirds of the members of each such association. [What agreement must state; filing; fee.] Such agree- ment must also state all the matters necessary to articles of association, and must be acknowledged by the signers be- fore an officer competent to take an acknowledgment of deeds in this state, and be filed in the office of the count}' clerk of the county wherein the principal business of the association is to be transacted, and a certified copy thereof in the office of the secretary of state, and pay the same fees for filing and recording as required by this code for the filing and recording of the certified copy of the original articles of association; and from and after the filing of such certified copy, the former associations comprising the com- ponent parts cease to exist, and the consolidated association succeeds to all the rights, duties, and powers of the com- ponent associations, and is possessed of all the rights, duties, and powers prescribed in the agreement of consolidat- ed association not inconsistent with this title, and is subject to all the liabilities and obligations of the former component associations, and succeeds to all the property and interests thereof, and may make by-laws and do all things permitted by this title. Hi.story: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 598. §653j. DISSOLUTION AND WINDING UP OF AS- SOCIATION. Any association formed or consolidated un- der this title may be dissolved and its affairs wound up voluntaril}' by the written request of two-thirds of the members. Such request must be addressed to the directors, 374 Tit. XX.] DISSOLUTION— QUO WARRANTO. § 653k and must specify reasons why the winding up of the affairs of the association is deemed advisable, and must name three persons who are members to act in liquidation and in winding up the affairs of the association, a majority of whom must thereupon have full power to do all things necessary to liquidation; and upon the filing of such request with the directors, and a copy thereof in the ofifice of the county clerk of the county where the principal business is trans- acted, all power of the directors ceases and the persons ap- pointed must proceed to wind up the association, and realize upon its assets, and pay its debts, and divide the residue of its money among the members, share and share alike, within a time to be named in said written request, or such further time as may be granted them by two thirds of the members, in w^riting, filed in the ofiice of said county clerk; and upon the completion of such liquidation the said association must be deemed dissolved. No receiver of any such association, or of any property thereof, or of any right therein, can be appointed by any court, upon the application of any mem- ber, save after judgment of dissolution for usurping fran- chises at the suit of the state of California by its attorney- general. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 598. §653k. QUO WARRANTO TO INQUIRE INTO THE RIGHT OF AN ASSOCIATION TO DO BUSINESS. The right of any association claiming to be organized under this title to do business may be inquired into by quo warranto, at the suit of the attorney-general of this state, but not other- wise. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 599. 375 §6531 CIVIL CODE. [Div.I.Pt.IV. §653 1. V/HAT CORPORATIONS OR ASSOCIATIONS ARE NOT AFFECTED BY THIS TITLE. This title is not applicable to railroads, telegraph, telephone, banking, in- surance, building and loan, or any other corporation, unless the special provisions of this code, applicable thereto, are complied with. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 599. 376 Tit. XXL] AGRICULTURAL, ETC., ASSOCS. §§ 653m, 653n [A new title to be XXI of part IV of division First added by Act February 12, 1909, (Stats, and Amdts. 1909, p. 16), to read as follows:] TITLE XXL NON-PROFIT CO-OPERATIVE AGRICULTURAL, VITICUL- TURAL, AND HORTICULTURAL ASSOCIATIONS. § 653ni. Formation and purposes of. § 653n. Membership. § 653o. Articles of incorporation. § 653p. By-laws. § 653q. Powers of association. § 653r. Amendment to articles of incorporation. § 653s. Quo warranto. §653m. FORMATION AND PURPOSES OF. Three or more persons engaged in the production, preserving, drying, packing, shipping, or marketing of agricultural, viti- cultural or horticultural products, or all of them, may form a non-profit co-operative association under the provisions of this title, to carrj^ on said business, and such association shall have, and may exercise, the powders authorized by this title, and the powers necessarily incidental thereto, and all other powers granted to private corporations by the laws of this state, except such powers as are inconsistent with those granted by this title. History: Enacted February 12, 1909, Stats, and Amdts. 1909, p. 16. §653n. MEMBERSHIP. Such association shall not have a capital stock, and its business shall not be carried on for profit. Any person or any number of persons, in addition to the original incorporators, may become mem- bers of such association, upon such terms and conditions as to membership, and subject to such rules and regulations as 377 §653o civiT. CODE. [Div.I.Pt.TV to their, and each of their, contract and other rights and liabilities between it and the member, as the said association shall provide in its by-laws. [Certificate of membership. Right of succession.] The association shall issue a certificate of membership to each member, but the said membership, or the said certificate thereof, shall not be assigned by a member to any other person, nor shall the assigns thereof be entitled to member- ship in the association, or to any property rights or in- terests therein. Nor shall a purchaser at execution sale, or any other person who may succeed, by operation of law or otherwise to the property interests of a member, be entitled to membership, or become a member of the associa- tion by virtue of such transfer. The board of directors may, however, by motion duly adopted by it, consent to such as- signment or transfer and to the acceptance of the assignee or transferee as a member of the association, but the as- sociation shall have the right, by Its by-laws, to provide for or against the transfer of membership and for or against the assignment of membership certificates, and also the terms and conditions upon which any such transfer or as- signment shall be allowed. Hi-story: Enacted February 12, 1909, Stats, and Amdts. 1909, p. 17. §653o. ARTICLES OF INCORPORATION. Each as- sociation formed under this title must prepare and file articles of incorporation setting forth: 1. The name of the association. 2. The purpose for which it is formed. 3. The place where its principal business will be trans- acted. 4. The term for which it is to exist, not exceeding fifty years. 5. The number of directors thereof, which must not be less than three and which may be any number in excess thereof, 378 Tit. XX I.] ARTICLES— BY-LAWS. § 653p and the names and residences of those selected for the first year and until their successors shall have been elected, and shall have accepted ofifice. 6. Whether the voting power and the property rights and interest of each member shall be equal or unequal, and if unequal the articles shall set forth a general rule or rules applicable to all members by which the voting power and the property rights and interests, respectivel}', of each mem- ber may and shall be determined and fixed, but the associa- tion shall have power to admit new members who shall be entitled to vote and to share in the property of the as- sociation with the old members, in accordance with such gen- eral rule. This provision of the articles of. incorporation shall not be altered, amended, or repealed except by the unanimous written consent or the vote of all of the mem- bers. 7. Said articles must be subscribed by the original mem- bers and acknowledged by one of them before an officer authorized by the law of this state, to take and certity acknowledgments of deeds of conveyance, and shall be filed in accordance with the provisions of section two hundred and ninety-six of this code, and when so filed the said articles of incorporation or certified copies thereof shall be received in all the courts of this state, and other places, as prima facie evidence of the facts contained therein. History: Enacted February 12, 1909, Stats, and Amdts. 1909, p. 17. § 653p. BY-LAWS. Each association incorporated under this title must, within thirty days after its incorporaj:ion, adopt a code of by-laws for its government and management not inconsistent with the provisions of this title. A majority vote of the members or the written assent of mem- bers representing a majoritj- of the votes, is necessary to adopt such by-laws. The provisions of sections three hun- dred and three and three hundred and four of this code, 379 §653p CIVIL CODE. [Div.I.Pt.IV. which are not inconsistent with the provisions of this title, shall apply to the by-laws of the corporations provided for in this title. Each association may also, by its by-laws adopted as aforesaid, provide for the following matters: 1. The manner of removal of any one or more of its directors and for filling any and all vacancies in the board of directors. 2. The number of directors and the number of members or votes thereof constituting a quorum. 3. The conditions upon which and the time when member- ship of any member in the association shall cease; the mode, manner and effect of expulsion of a member, subject to the right of the expelled member to have the board of directors equitably appraise his property interests in the association and to fix the amount thereof in money, and to have the money paid to him within sixty days after such expulsion. 4. The amount of membership fee, if any, and the amount which each member shall be required to pay annually, or from time to time, if at all, to carry on the business of the association, and also the compensation, if any, to be paid by each member for any services rendered by the associa- tion to him, and the time of payment and the manner of collecting the same, and for forfeiture of the interest of the member in the association for non-payment of the same. 5. The number and qualifications of members of tlie as- sociation and the conditions precedent to membership and the method, time and manner of permitting members to withdraw, and providing for the assignment and transfer of the interest of members, and the manner of determining the value of such interest and providing for the purchase of such interest by the association upon the death, withdrawal or expulsion of a member or upon the forfeiture of his mem- bership, at the option of the association. 6. Permitting members to vote by their proxies, and de- termining the conditions, manner, form and effect thereof. History: Enacted February 12, 1909, Stats, and Amdts. 1909, p. IS. 380 Tit.XX.] POWERS OF ASSOCIATION. § 653q §653q. POWERS OF ASSOCIATION. Each associa- tion incorporated under this title shall have the powers granted by the provisions of this code and other laws of California relating to private corporations, and shall also have the following powers: 1. To appoint such agents and officers as its business may require, and such appointed agents may be either persons or corporations; to admit persons to membership in the association, and to expel any member pursuant to the pro- visions of its by-laws; to forfeit the membership of any member for violation of any agreement between him and the association, or for his violation of its by-laws. 2. To purchase or otherwise acquire, hold, own, sell and otherwise dispose of any and every kind or kinds of real and personal property necessary to carry on its business, and to acquire by purchase or otherwise the interest of any member in the property of the association. 3. Upon the written assent or by a vote of members rep- resenting two-thirds of the total votes of all members to co-operate with any other co-operative corporation or cor- porations for the co-operative and more economical carrying on of their respective business, by consolidation as pro- vided in section six hundred and fifty-three i of this code, whereupon the effect of such consolidation shall be the same as declared in said section; or upon resolution, adopted by its board of directors, to enter into all necessary and proper contracts and agreements, and to make all necessary and proper stipulations and arrangements with any other co- operative corporation or corporations for the co-operative and more economical carrying on of its business, or any part or parts thereof; or any two or more co-operative cor- porations organized under this title, upon resolutions, adopted l>y their respective board of directors, may, for the purpose of more economically carrying on their respective businesses, by agreement between them, unite in employing and using, or several associations may separately employ and use, .the 381 §653r CIVIL CODE. [Div.T.Pt.I V. same methods, means and agencies, for carrj-ing on and con- ducting their respective businesses. 4. Any association formed or consolidated under this title may be dissolved and its affairs wound up voluntarily by the written request of members representing two-thirds of the total votes, in the manner and with the effect provided in section six hundred and fifty-three j of this code, except that the moneys remaining after liquidation shall be divided among the members in proportion to their property interests therein. History: Enacted February 12, 1909, Stats, and Amdts. 1909, p. 19. §653r. AMENDMENT TO ARTICLES OF INCOR- PORATION. Any corporation, whether stock or member- ship, heretofore incorporated under the laws of this state for the purpose of engaging in and carrying on the business specified in section six hundred and fifty-three m of this title, the stockholders or members of which would be en- titled to incorporate under the provisions of this title, may, by the unanimous written assent or vote of all the stock- holders or members, amend its articles of incorpoi^ation to conform to the provisions of this title in the manner and with the effect provided in section three hundred and sixty- two of the Civil Code, and from the time of filing the amended articles, such corporation shall have the same powers as if it had originally incorporated under the pro- visions of this title; provided, however, that the debts, obligations, and other liabilities against such corporation or against the members or the stockholders thereof, existing at the time of such amendment, shall not be discharged or their collection or enforcement otherwise impaired; and provided further that the respective property interests of the several stockholders by virtue of their ownership of shares of stock therein, or the several members by virtue of their membership therein, and also the voting power of 382 Tit.XXI.] QUO WARRANTO. § 653s each of them, shall be determined and fixed by the amended articles of incorporation in accordance with the provisions of subdivision six of section six hundred fifty-three o, but which rights shall be subject to the right of the association to admit new members. History: Enacted February 12, 1909, Stats, and Amuts. 1909, p. 19. § 653s. QUO WARRANTO. The right of an association claiming to be organized and incorporated and carrying on its business under this title, to do and to continue its busi- ness, may be inquired into by quo warranto at the suit of the attorney-general, but not otherwise. History: Enacted February 12, 1909, Stats, and Amdts. 1909, p. 20. 383 §§653t, 653u CIVIL CODE. [Div.I,Pt.IV. [A new title to be known as title XXII of part IV of division first is hereby added (Act April 13, 1909, Stats, and Amdts. 1909, p. 854), to read as follows:] TITLE XXII. NON-PROFIT CO-OPERATIVE CORPORATIONS. § 653t. Formation and purpose of. § 653u. Membership. § 6^v. Articles of incorporation. § 653w. By-laws. § 653x. Powers of corporation. § 653y. Amendment of articles of incorporation. § 653z. Quo warranto. §'653za. Particular corporations. § 653zb. Voting. §653t. FORMATION AND PURPOSE OF. Non-profit co-operative corporations may be formed by the voluntary association of any three or more persons in the manner prescribed in this title. A majority of such persons must be residents of this state, and such corporation shall have and may exercise the powers authorized by this title, and the powers necessarily incident thereto, and also all other powers granted to private corporations by the laws of this state, excepting such powers as are inconsistent with those granted by this title. History: Enacted April 13, 1909, Stats, and Amdts. 1909, p. 854. §653u. MEMBERSHIP. Such corporation shall not have a capital stock, and its business shall not be carried on for profit. Any person or any number of persons including and in addition to the original incorporators, may become mem- bers of such corporation upon such terms and conditions as to membership, and subject to such rules and regulations as to their, and each of their, contract and other rights and 384 Tit.XXII.] MEMBERSHIP— ARTICLES. § 653v liabilities between it and the member, as the said corpora- tion shall prescribe in its by-laws. The corporation shall issue a certilicate of membership to each member, but the said membership, or the said certificate thereof, shall not, except as herein provided, be assigned by any member to any other person, nor shall the assigns thereof be entitled to membership in the corporation, or to any property rights or interest therein, nor shall a purchaser at execution sale, or any other person who may succeed, by operation of law or otherwise, to the property interests of a member, be entitled to membership, or become a member of the corporation by virtue of such transfer. The board of di- rectors may, however, by motion duly adopted by it, con- sent to such assignment or transfer, and to the acceptance of the assignee or transferee as a member of the corporation. The corporation shall also have the right, by its by-laws. to provide for or against the transfer of membership and for or against the assignment of membership certificates, and also the terms and conditions upon which any such transfer or assignment shall be allowed. History: Enacted April 13, 1909, Stats, and Amdts. 1909, p. 854. §653v. ARTICLES OF INCORPORATION. Each cor- poration formed under this title must prepare and file articles of incorporation in writing setting forth: 1. The name of the corporation. 2. The purpose for which it is formed. 3. The place where its principal business will be trans- acted. 4. The term for whicTi it is to exist, not exceeding fifty years. 5. The number of directors thereof, which must not be less than three and which may be any number in excess thereof, and the names and residences of those selected for the first year and until their successors shall have been elected, and shall have accepted office. 13 385 §653w CIVIL CODE. [Div.I.Pt.IV. 6. Whether the voting power and the property rights and interest of each member shall be equal or unequal, and if unequal the articles shall set forth a general rule or rules applicable to all members by which the voting power and the property rights and interests, respectively, of each mem- ber may and shall be determined and fixed, but the cor- poration shall have power to admit new members who shall be entitled to vote and to share in the property of the corporation with the old members, in accordance with such general rule. 7. Said articles of incorporation shall be subscribed by three or more of the original members, a majority of whom "^ must be residents of this state, and acknowledged by each before some officer authorized to take and certify acknowl- edgments of conveyances of real property, and shall be filed in all respects in accordance with the provisions of section two hundred and ninety-six of this code, and thereupon the secretary of state shall issue to the corporation, over the great seal of the state, a certificate that a copy of the articles containing the required statement of facts has been filed in his office, and thereupon the person signing the articles and their associates and successors shall be a body politic and corporate by the name stated in the certificate. When so filed, the said articles of incorporation or certified copies thereof shall be received in all the courts of this state, and other places, as prima facie evidence of the facts contained therein. Hist is qualified: l.When it is share'd with one or more persons; 2. When the time of enjoyment is deferred or limited; 3. When the use is restricted. History: Enacted March 21, 1872. §681. SEVERAL OWNERSHIP, WHAT. The owner ship of property by a single person is designated as a sole or several ownership. History: Enacted March 21, 1872. §682. OWNERSHIP OF SEVERAL PERSONS. The ownership of property by several persons is either: 1. Of joint interests; 2. Of partnership interests; 3. Of interests in common; 1. Of community interest of husband and wife. History: Enacted March 21, 1872; amended by Code Coninii.'^- sion. Act March 16. 1901, Stats, and Anidts. 1900-1, p. 391, held unconstitutional, see history, § 4 ante. 399 §§683-687 CIVIL CODE. [Div.II,Pt.I. §683. JOINT INTEREST, WHAT. A joint interest is one owned by several persons in equal shares, by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenancy, or when granted or devised to executors or trustees as joint tenants. Historj-: Enacted March 21, 1S72; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1. p. 391, held unconstitutional, see history, § 4 ante. §684. PARTNERSHIP INTEREST, WHAT. A part- nership interest is one owned by several persons, in partner- ship, for partnership purposes. History: Enacted March 21, 1872. §685. INTEREST IN COMMON, WHAT. An interest in common is one owned by several persons, not in joint ownership or partnership. History: Enacted March 21, 1872. §686. WHAT INTERESTS ARE IN COMMON. Every interest created in favor of several persons in their own right is an interest in common, unless acquired by them in partnership, for partnership purposes, or unless declared in its creation to be a joint interest, as provided in section six hundred and eighty-three, or unless acquired as com- munity property. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 391, held unconstitutional, see history, § 4 ante. §687. COMMUNITY PROPERTY. Community prop- erty is property acquired by husband and wife, or either, during marriage, when not acquired as the separate property of either. History: Enacted March 21, 1872. 400 Tit.II,ch.II,art.I.] INTEREST— KINDS OF. §§688-694 §688. INTERESTS AS TO TIME. In respect to the time of enjoyment, an interest in property is either: 1. Present or future; and, 2. Perpetual or limited. History: Enacted March 21, 1872. §689. PRESENT INTEREST, WHAT. A present in- terest entitles the owner to the immediate possession of the property. History: Enacted March 21, 1S72. § 690. FUTURE INTEREST, WHAT. A future interest entitles the owner to the possession of the property only at a future period. History: Enacted March 21, 1872. §691. PERPETUAL INTEREST, WHAT. A perpet- ual interest has a duration equal to that of the property. History: Enacted March 21, 1872. §692. LIMITED INTEREST, WHAT. A limited inter- est has a duration less than that of the property. History: Enacted March 21, 1872. §693. KINDS OF FUTURE INTERESTS. A future interest is either: 1. Vested; or, 2. Contingent. Historj-: Enacted March 21, 1872. § 694. VESTED INTERESTS. A future interest is vested when there is a person in being who would have a right, defeasible or indefeasible, to the immediate possession of 401 §§695-699 CIVIL code. [Div.II.Pt.I. the property, upoii the ceasing of the intermediate or precedent interest. History: Enacted March 21, 1872. §695. CONTINGENT INTERESTS. A future interest is contingent, whilst the person in whom, or the event upon which, it is limited to take effect remains uncertain. History: Enacted March 21, 1872. §696. TWO OR MORE FUTURE INTERESTS. Two or more future interests may be created to take effect in the alternative, so that if the first in order fails to vest, the next in succession shall be substituted for it, and take effect accordingly. History: Enacted March 21, 1872. § 697. CERTAIN FUTURE INTERESTS NOT TO BE VOID. A future interest is not void merely because of the improbability of the contingency on which it is limited to take effect. History-: Enacted March 21, 1872. § 698. POSTHUMOUS CHILDREN. When a future in- terest is limited to successors, heirs, issue, or children, posthumous children are entitled to take in the same man- ner as if living at the death of their parents. History: Enacted March 21, 1872. §699. QUALITIES OF EXPECTANT ESTATES. Future interests pass by succession, will, and transfer, in the same manner as present interests. History: Enacted March 21, 1872. 402 Tit.II,ch.II,art.I.] INTEREST AND REALTY. §§700-703 §7C0. SAME. [MERE POSSIBILITY NOT AN IN- TEREST.] A mere possibility, such as the expectancy ot an heir apparent, is not to be deemed an interest of any kind. History: Enacted March 21, 1S72. § 701. INTERESTS IN REAL PROPERTY. In respect to real or immovable property, the interests mentioned in tliis chapter are denominated estates, and are specially named and classified in part two of this division. History: Enacted March 21, 1S72. § 702. SAME. [NAMES AND CLASSIFICATION OF INTERESTS.] The names and classification of interests in real property have only such application to interests in personal property as is in this division of the code expressly provided. Hl.story: Enacted March 21, 1872; amended by Code Commi.s- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 391, held unconstitutional, see history, § 4 ante. §703. WHAT FUTURE INTERESTS ARE RECOG- NIZED. No future interest in property is recognised by the lavv^, except such as is defined in this division of the code. Hi.story; Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 392, held unconstitutional, see history, § 4 ante. 403 §§707-710 CIVIL CODE. [Div.II.Pt.I. ARTICLE II. CONDITIONS OF OWNERSHIP. § 707. Fixing the time of enjoyment. § 708. Conditions. § 709. Certain conditions precedent void. § 710. Conditions restraining marriage. [Void when.] § 711. Conditions restraining alienation void. §707. FIXING TIME OF ENJOYMENT. The time when the enjoyment of property is to begin or end may be determined by computation, or be made to depend on events. Tn the latter case, the enjoyment is said to be upon con- dition. Hi.story: Enacted March 21, 1872. § 708. CONDITIONS. Conditions are precedent or sub- sequent. The former fix the beginning, the latter the end- ing, of the right. History: Enacted March 21, 1872. §709. CERTAIN CONDITIONS PRECEDENT VOID. If a condition precedent requires the performance of an act wrong of itself, the instrument containing it is so far void, and the right cannot exist. If it requires the perform- ance of an act not wrong of itself, but otherwise unlawful, the instrument takes efifect and the condition is void. Hlstoo's Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 392, held unconstitutional, see history, § 4 ante. §710. CONDITIONS RESTRAINING MARRIAGE. [VOID WHEN.] Conditions imposing restraints upon mar- riage, except upon the marriage of a minor, are void; but this 404 Tit. II, ch. II, art. II.] RESTRAINING ALIENATION. §711 does not affect limitations where the intent was not to for- bid marriage, but only to give the use until marriage. History: Enacted March 21, 1872; amended March 30, 1S74, Code Amdts. 1873-4, p. 218. §711. CONDITIONS RESTRAINING ALIENATION VOID. Conditions restraining alienation, when repugnant to the interest created, are void. History: Enacted March 21, 1S72. 41)5 §§715-717 CIVIL CODE. [Div.II,Pt.I. ARTICLE III. RESTRAINTS UPON ALIENATION. § 715. How long- it may be suspended. § 716. Future Interests void, which suspend power of aliena- tion. § 717. Leases of agricultural land, for over fifteen years, void. § 718. Lease of city lots, for over ninety-nine years, void. §715. HOW LONG IT MAY BE SUSPENDED. The absolute power of alienation cannot be suspended, by any limitation or condition whatever, for a longer period than during the continuance of the lives of persons in being at the creation of the limitation or condition, except in a single case mentioned in section seven hundred and seventy- two. History: Enacted March 21, 1S72. § 716. FUTURE INTERESTS VOID, WHICH SUS- PEND POWER OF ALIENATION. Every future interest is void in its creation which, by any possibility, may suspend the absolute power of alienation for a longer period than is prescribed in this chapter. Such power of alienation is sus- pended when there are no persons in being by whom an absolute interest in possession can be conveyed. History: Enacted March 21, 1872. §717. LEASE OF AGRICULTURAL LAND, FOR OVER FIFTEEN YEARS, VOID. No lease or grant of land for agricultural or horticultural purposes for a longer period than fifteen 3-ears, in which shall be reserved any rent or service of any kind, shall be valid; provided, that any land of a municipality used for agricultural or horti- 406 Tit.II,ch.Il,art.lII.] LEASE OF CITY LOTS. §718 cultural purposes and upon which is discharged sewage or waste water may be leased for a period not exceeding twenty-live years. Hi.story: Enacted March 21, 1872; amended March 26, 1895, Stats, and Amdts. 1895, p. 75; April 19. 1909, Stats, and Amdts. 1909, p. 1000; May 4, 1915, Stats, and Amdts. 1915, p. 349. In effect August 8, ]915. § 718. LEASE OF CITY LOTS, FOR OVER NINETY- NINE YEARS, VOID. No lease or grant of any town or city lot for a longer period than ninety-nine years, in which shall be reserved any rent or service of any kind, sliall be valid; [Property of minor or incompetent.] Provided, that the property of any municipality, or any minor or incompetent person, shall not be leased for a longer period than ten years, excepting that the sewer farm of a municipality and all waters and sewage used or discharged thereon may be leased for a period not exceeding twenty-five years. HLstory: Enacted March 21. 1872; amended March 20, 1903, Stats, and Amdts. 1903, p. 247; May 1, 1911, Stats, and Amdts. 1911, p. 1391; May 4, 1915, Stats, and Amdts. 1915, p. 349. In effect August 8, 1915. 407 §§722-724 CIVIL code. [Div.II,Pt.I. ARTICLE IV. ACCUMULATIONS. § 722. Dispositions of income. § 723. Accumulations, when void. § 724. Accumulation of income. § 725. Other directions, when void in part. § 726. Application of income to support, etc., of minor. § 722. DISPOSITIONS OF INCOME. Dispositions of the income of property to accrue and to be received at any time subsequent to the execution of the instrument creating such disposition, are governed by the rules prescribed in this title in relation to future interests. H!.story: Enacted March 21, 1872. ■^23. ACCUMULATIONS, WHEN VOID. All direc- tions for the accumulation of the income of property, except such as are allowed by this title, are void. History: Enacted March 21, 1872. §724. ACCUMULATION OF INCOME. An accumula- tion of the income of property, for the benefit of one or more persons, may be directed by any will or transfer in writing sufficient to pass the property out of which the fund is to arise, as follows: 1. If such accumulation is directed to commence on the creation of the interest out of which the income is to arise, it must be made for the benefit of one or more minors then in being, and terminate at the expiration of their minority; or, 2. If such accumulation is directed to commence at any time subsequent to the creation of the interest out of which the income is to arise, it must commence within the time 408 Tit.II,ch.II,art.IV.] INCOME— APPLICATION. §§725,726 in this title permitted for the vesting of future interests, and during the minority of the beneficiaries, and terminate at the expiration of such minority. History: Enacted March 21, 1872. § 725. OTHER DIRECTIONS, WHEN VOID IN PART. If in either of the cases mentioned in the last section the direction for an accumulation is for a longer term than during the minority of the beneficiaries, the direction only, whether separable or not from other provisions of the instru- ment, is void as respects the time beyond such minority. History: Enacted March 21, 1872. §726. APPLICATION OF INCOME TO SUPPORT, ETC., OF MINOR. 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 suitable sum to be applied thereto out of the fund. History: Enacted March 21. 1872. 409 B732,733 CIVIL CODE. [Div.II,Pt.I. CHAPTER III. RIGHTS OF OWNERS. § 732. Increase of property. § 733. In certain cases, who entitled to income of property. §732. INCREASE OF PROPERTY. The owner of a thing owns also all its products and accessions. History: Enacted March 21, 1872. §733. IN CERTAIN CASES, WHO ENTITLED TO INCOME OF PROPERTY. When, in consequence of a valid limitation of a future interest, there is a suspension of the power of alienation or of the ownership during the con- tinuation of which the income is undisposed of, and no valid direction for its accumulation is given, sitch income belongs to the persons presumptively entitled to the next eventual interest. History: Enacted March 21, 1S72. 410 Tit.II,ch.lV.] ■ FUTURE INTEREST. §§739-741 CHAPTER IV. TERMINATION OF OWNERSHIP. § 739. Future interests, when defeated. § 740. Same. [How defeated.] § 741. Future Interests, when not defeated. "§ 742. Same. [Contingency happening, how future interest takes effect.] §739. FUTURE INTERESTS,, WHEN DEFEATED. A future interest, depending on the contingency of the death of any person without successors, heirs, issue, or children, is defeated by the birth of a posthumous child of such person, capable of taking by succession. History: Enacted March 21, 1872. §740. SAME. [HOW DEFEATED.] A future interest may be defeated in any manner or by any act or means which the 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. History: Enacted March 21, 1872. § 741. FUTURE INTERESTS, WHEN NOT DEFEAT- ED. No future interest can be defeated or barred by any alienation or other act of the owner of the intermediate or precedent interest, nor by any destruction of such precedent interest by forfeiture, surrender, merger, or otherwise, ex- cept as provided by the next section, or where a forfeiture is imposed by stattite as a penalty for the violation thereof. History: Enacted March 21, 1872. 411 §§742-749 CIVIL code. . [Div.II.Pt.I. 742. SAME. [CONTINGENCY HAPPENING, HOW FUTURE INTEREST TAKES EFFECT.] No future in- terest, valid in its creation, is defeated by the determination of the precedent interest before the happening of the con- tingency on which the future interest is limited to take ef- fect; but should such contingency afterwards happen, the fu- ture interest takes effect in the same manner and to the same extent as if the precedent interest had continued to the same period. History: Enacted March 21, 1872. TITLE III. GENERAL DEFINITIONS. § 748. Income, what. § 749. Time of creation, what. §748. INCOME, WHAT. The income of property, as the term is used in this part of the code, includes the rents and profits of real property, the interest of money, dividends upon stock, and other produce of personal property. History: Enacted March 21, 1872. § 749. TIME OF CREATION, WHAT. The delivery of the grant, where a limitation, condition, or future interest is created by grant, and the death of the testator, where it is created by will, is to be deemed the time of the creation of the limitation, condition, or interest, within the meaning of this part of the code. History: Enacted March 21, 1872. 412 Tit.I.] GENERAL PROVISIONS. § 755 PART II. REAL OR IMMOVABLE PROPERTY. Title I. General Provisions, § 755. II. Estates in Real Property, §§761-811. III. Rights and Obligations of Owners, §§818-843 IV. Uses and Trusts, §§847-871. V. Powers, §§878-940. [Repealed.] TITLE I. GENERAL, PROVISIONS. § 7.55. Real property, how governed. §755. REAL PROPERTY, HOW GOVERNED, Real property within this state is governed by the law of this state, except where the title is in the United States. History: Enacted March 21, ]872; amended March oO, 1874, Code Amdts. 1873-4, p. 218. 413 J Tit. II, ch. I.] ESTATES, ENUMERATION. §751 TITLE II. ESTATES IN REAL PROPERTY. Chapter I. Estates in General, §§761-781. II. Termination of Estates, §§789-793. III. Servitude, §§801-811. CHAPTER I. ESTATES IN GENERAL. Enumeration of estates. What estate a fee simple. Conditional fees and estates tail abolished. Certain remainders valid. Freeholds. Chattels real. Chattel interests. Estate for life of a third person, when a freehold, etc. Future estates, what. Reversions. Remainders. Suspended ownership. Suspension by trust. Contingent remainder in fee. Remainders, future and contingent estates, how created. Limitation of successive estates for life. Remainder upon estates for life of third person. Contingent remainder on a term of years. Remainder of estates for life. Remainder upon a contingency. Heirs of a tenant for life, wlien to take as purchasers. Construction of certain remainders. Effect of power of appointment. §761. ENUMERATION OF ESTATES. Estates in real property, in respect to the duration of their enjoyment, are either: 415 § 761. § 762. § 76 3. § 764. § 765. § 766. § 767. § 768. § 769. § 770. § 771. § 772. § 773. § 774. § 775. § 776. § 777. § 778. § 779. § 780. § 781. §§762-765 CIVIL CODE. [Div.II.Pt.II. 1. Estates of inheritance or perpetual estates; 2. Estates for life; 3. Estates for years; or, 4. Estates at will. History: Enacted March 21, 1872. § 762. WHAT ESTATE A FEE SIMPLE. Every estate of inheritance is a fee, and every such estate, when not de- feasible or conditional, is a fee simple or an absolute fee. History: Enacted March 21, 1872; amended March 30, 1S74, Code Amdts. 1873-4, p. 218; amended by Code Commission, Act. March 16, 1901, Stats, and Amdts. 1900-1, p. 322, held unconsti- tutional, see history, § 4 ante. §763. CONDITIONAL FEES AND ESTATES TAIL ABOLISHED, Estates tail are abolished, and every estate which would be at common law adjudged to be a fee tail is a fee simple; and if no valid remainder is limited thereon, is a fee simple absolute. Hi-story: Enacted March 21, 1872. § 764. CERTAIN REMAINDERS VALID. Where a re- mainder in fee is limited upon any estate, which would by the common law be adjudged a fee tail, such remainder is valid as a contingent limitation upon a fee, and vests in pos- session on the death of the first taker, without issue living at the time of his death. History: Enacted March 21, 1872. § 765. FREEHOLDS. CHATTELS REAL. CHATTEL INTERESTS. Estates of inheritance and for life are called estates of freehold; estates for years are chattels real; and estates at will are chattel interests, but are not liable as such to sale on execution. History: Enacted March 21, 1872. 416 Tit. II, ch. I.] ESTATES AND REVERSIONS. §§766-770 §766. ESTATE FOR LIFE OF THIRD PERSON, WHEN A FREEHOLD, ETC. An estate during the life of a third person, whether limited to heirs or otherwise, is a freehold. History: Enacted March 21, 1S72; amended March 30, 1874, Code Amdts. 1873-4, p. 218. §767. FUTURE ESTATES, WHAT. A future estate may be limited by the act of the party to commence in pos- session at a future day, either without the intervention of a precedent estate, or on the termination, by lapse of time or otherwise, of a precedent estate created at the same time. History: Enacted March 21, 1872. §768. REVERSIONS. A reversion is the residue of an estate left by operation of law in the grantor or his succes- sors, or in the successors of a testator, commencing in pos- session on the determination of a particular estate granted or devised. History: Enacted March 21, 1872. § 769. REMAINDERS. When a future estate, other than a reversion, is dependent on a precedent estate, it may be called a remainder, and may be created and transferred by that name. History: Enacted March 21, 1872. § 770. SUSPENDED OWNERSHIP. The absolute own- ership of a term of years cannot be suspended for a longer period than the absolute power of alienation can be suspend- ed in respect to a fee. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 218. 14 417 §§771-774 CIVIL CODE. [Div.lI.Pt.Il §771. SUSPENSION BY TRUST. The suspension of all power to alienate the subject of a trust, other than a power to exchange it for other property to be held upon the same trust, or to sell it and reinvest the proceeds to be held upon the same trust, is a suspension of the power of alienation, within the meaning of section seven hundred and fifteen. History: Enacted March 21, 1872. § 772. CONTINGENT REMAINDER IN FEE. A con- tingent remainder in fee may be created on a prior remain- der in fee, to take effect in the event that the persons to whom the first remainder is limited die under the age of twenty- one years, or upon any other contingency by which the es- tate of such persons may be determined before they attain majority. History: Enacted March 21, 1872. §773. REMAINDERS, FUTURE AND CONTINGENT ESTATES, HOW CREATED. Subject to the rules of this title, and of part one of this division, a freehold estate, as well as a chattel real, may be created to commence at a fu- ture day; an estate for life may be created in a term of years, and a remainder limited thereon; a remainder of a freehold or chattel real, either contingent or vested, may be created, expectant on the determination of a term of j^ears; and a fee may be limited on a fee, upon a contingency, which, if it should occur, must happen within the period prescribed in this title. History: Enacted March 21, 1872. §774. LIMITATION OF SUCCESSIVE ESTATES FOR LIFE. Successive estates for life cannot be limited, except to persons in being at the creation thereof, and all life estates subsequent to those of persons in being are void; and upon the death of those persons, the remainder, if valid 418 Tit.II.ch.l.] REMAINDERS. §§775-779 in its creation, takes effect in the same manner as if no other life estate had been created. History: Enacted March 21, 1S72; amended March 30, 1874, Code Amdts. 1873-4, p. 219. §775. REMAINDER UPON ESTATES FOR LIFE OF THIRD PERSON. No remainder can be created upon suc- cessive estates for life, provided for in the preceding section, unless such remainder is in fee; nor can a remainder be cre- ated upon such estate in a term for years, unless it is for the whole residue of such term. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 219. §776. CONTINGENT REMAINDER ON A TERM OF YEARS. A contingent remainder cannot be created on a term of years, unless the nature of the contingency on which it is 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. History: Enacted March 2], 1872. §777. REMAINDER OF ESTATES FOR LIFE. No estate for life can be limited as a remainder on a term of years, except to a person in being at the creation of such estate. History: Enacted March 21, 1872. §778. REMAINDER UPON A CONTINGENCY. A re- mainder may be limited on a contingency which, in case it should happen, will operate to abridge or determine the precedent estate; and every such remainder is to be deemed a conditional limitation. History: Enacted March 21, 1872. § 779. HEIRS OF A TENANT FOR LIFE, WHEN TO TAKE AS PURCHASERS. When a remainder is limited to the heirs, or heirs of the body, of a person to whom a life 419 §§780,781 CIVIL CODE. [Div.II.Pt.U. estate in the same property is given, the persons who, on the termination of the life estate, are the successors or heirs of the body of the owner for life, are entitled to take by virtue of the remainder so limited to them, and not as mere successors of the owner for life. History: Enacted March 21, 1S72. §780. CONSTRUCTION OF CERTAIN REMAIN- DERS. When a remainder on an estate for life or for years is not limited on a contingency defeating or avoiding such precedent estate, it is to be deemed intended to take effect only on the death of the first taker, or the expiration, by lapse of time, of such term of years. ■ History: Enacted March 21, 1872. § 781. EFFECT OF POWER OF APPOINTMENT. A general or special power of appointment does not prevent the vesting of a future estate limited to take effect in case such power is not executed. History: Enacted March 21, 1872. 420 Tit.IJ,ch.II.] TERMINATION OF ESTATES. §§789-791 CHAPTER II. TERMINATION OF ESTATES. § 789. Tenancy at will may be terminated by notice. § 790. Effect of notice. § 791. Re-entry, when and how to be made. § 792. Summary proceedings in certain cases provided for. § 793. Notice not necessary before action. § 789. TENANCY AT WILL MAY BE TERMINATED BY NOTICE. A tendency [tenancy] or other estate at will, however created, may be determined by the landlord's giving notice in writing to the tenant, in the manner pre- scribed by section eleven hundred and sixty-two of the Code of Civil Procedure, to remove from the premises within a pe- riod of not less than thirty days, to be specified in the no- tice. History: Enacted March 21, 1872; amended February 15, 1911, Stats, and Amdts. 1911, p. 61. §790. EFFECT OF NOTICE. After such notice has been served, and the period specified by such notice has ex- pired, but not before, the landlord may re-enter, or proceed according to law to recover possession. History: Enacted March 21, 1872. §791. RE-ENTRY, WHEN AND HOW TO BE MADE. Whenever the right of re-entry is given to a grantor or lessor in any grant or lease, or otherwise, such re-entry may be made at any time after the right has accrued, upon three days' notice, as provided in- sections eleven hundred and sixty-one and eleven hundred and sixty-two, Code of Civil Procedure. History: Enacted March 21, 1872. 421 §§792,793 CIVIL code. [Div.Il.Pt.II. §792. SUMMARY PROCEEDINGS IN CERTAIN CASES PROVIDED FOR. Summary proceedings for ob- taining possession of real property forcibly entered, or forc- ibly and unlawfully detained, are provided for in sections eleven hundred and fifty-nine to eleven hundred and seven- ty-five, both inclusive, of the Code of Civil Procedure. History: Enacted March 21, 1872. § 793. NOTICE NOT NECESSARY BEFORE ACTION. An action for the possession of real property leased or granted, with a right of re-entry, may be maintained at anj- time, after the right to re-enter has accrued, without the no- tice prescribed in section seven hundred and ninety-one. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Slats, and Anidts. 1900-1. p. 392, held unconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 599. 422 Tit. II, ch. TIL] SERVITUDES ATTACHED. §801 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. I § 806. Extent of servitudes. § 807. Apportioning easements. § 808. Rights of owner of future e.state. § 809. Actions by owner and occupant of dominant tenement. § 810. Actions by owner of servient tenement. § 811. How extinguished. §801. SERVITUDES ATTACHED TO LAND. The following land burdens, or servitudes upon land, may be at- tached to other land as incidents or appurtenances, and are then called easements: 1. The right of pasture; 2. The right of fishing; 3. The right of taking game; 4. The right of way; 5. The right of taking water, wood, minerals, and other things; 6. The right of transacting business upon land; 7. The right of conducting lawful sports upon land; 8. The right of receiving air, light, or heat from or over, or discharging the same upon or over land; 9. The right of receiving water from or discharging the same upon land; 10. The right of flooding land; 11. The right of having water flow without diminution or disturbance of any kind. 423 §§802-804 CIVIL CODE. [Div.II.Pt.Il. 12. The right of using a wall as a party-wall; 13. The right of receiving more than natural support from adjacent land or things affixed thereto; 14. The right of having the whole of a division fence main- tained by a coterminous owner; 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. Hi.story: Enacted March 21, 1S72; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 392, held unconstitutional, see history, § 4 ante. §802. SERVITUDES NOT ATTACHED TO LAND. The following land burdens, or servitudes upon land, may be granted and held, though not attached to land: 1. The right to pasture, and of fishing and taking game. 2. The right of a seat in church. 3. The right of burial. 4. The right of taking rents and tolls. 5. The right of way. 6. The right of taking, water, wood, minerals, or other things. History: Enacted March 21, 1872; amended March 30, 1S74, Code Amdts. 1873-4, p. 219. §803. DESIGNATION OF ESTATES. The land to which an easement is attached is called the dominant tene- ment; the land upon which a burden or servitude is laid is called the servient tenement. History: Enacted March 21, 1872. §804. BY WHOM GRANTABLE. A servitude can be created only by one who has a vested estate in the servient tenement. History: Enacted March 21, 1872. 424 Tit.ir,ch.III.] EXTENT OF SERVITUDE. §§805-810 §805. BY WHOM HELD. A servitude thereon cannot be held by the owner of the servient tenement. ^ History: TOnacted March 21, 1ST2. §806. EXTENT OF SERVITUDES. The extent of a servitude is determined by the terms of the grant, or tlie nature of the enjoyment by which it was acquired. History: Enacted March 21, 1872. §807. APPORTIONING EASEMENTS. In case of par- tition of the dominant tenement the burden must be ap- portioned according to the division of the dominant tene- ment, but not in such a way as to increase the burden upon the servient tenement. History: Enacted March 21, 1S72. §808. RIGHTS OF OWNER OF FUTURE ESTATE. The owner of a future estate in a dominant tenement may use easements attached thereto for the purpose of viewing waste, demanding rent, or removing an obstruction to the enjoyment of such easements, although such tenement is oc- cupied by a tenant. History: Enacted March 21, 1872. §809. ACTIONS BY OWNER AND OCCUPANT OF DOMINANT TENEMENT. The owner of any estate in a dominant tenement, or the occupant of such tenement, may maintain an action for the enforcement of an easement at- tached thereto. History: Enacted March 21, 1872. §810. ACTIONS BY OWNER OF SERVIENT TENE- MENT. The owner in fee of a servient tenement may main- 425 §811 CIVIL CODE. [Div.II.Pt.lI. tain an action for the possession of the land, against any one unlawfully possessed thereof, though a servitude exists there- on in favor of the public. History: Enacted March 21, 1872. 811. HOW EXTINGUISHED. A servitude is extin- guished: 1. By the vesting of the right to the servitude and the right to the servient tenement in the same person; 2. By the destruction of the servient tenement; 3. By the performance of any act upon either tenement, by the owner of the servitude, or with his assent, which is incompatible with its nature or exercise; or, 4. When the servitude was acquired by enjoyment, by dis- use thereof by the owner of the servitude for the period pre- scribed for acquiring title by enjoyment. History: Enacted March 21, 1872. 426 Tit.lII,ch.I,art.I.] RIGHTS OF OWNERS. -§818 TITLE III. RIGHTS AND OBLIGATIONS OF OWNERS Chapter I. Rights of Owners, §§818-834. II. Obligations of Owners, §§840-843. CHAPTER I. RIGHTS OF OWNERS. Article I. Incidents of Ownership. §§818-827. II. Boundaries, §§829-834. ARTICLE I. INCIDENTS OF OWNERSHIP. § SIS. Rigfhts of tenant for life. § 819. Rights of tenant for years, etc. .§ 820. Same. § 821. Rights of grantees of rents and reversion. § 822. Assignee of lessee, remedies of lessor against. § 823. Rights of lessees and their assignees, etc. § 824. Remedy on leases for life. § 825. Rent dependent on life. § 826. Remedy of reversioners, etc. § 827. Leases, change of terms. [Notice.] §818. RIGHTS OF TENANT FOR LIFE. The ownei of a life estate may use the land in the same manner as the owner of a fee simple, except that he must do no act to the injury of the inheritance. Hi.story: Enacted March 21, 1872. 427 §§819-822 CIVIL CODE. [Div.II,Pt.II. §819. RIGHTS OF TENANT FOR YEARS, ETC. A tenant for years or at will, unless he is a wrong-doer by hold- ing over, may occupy the buildings, take the annual products of the soil, work mines and quarries open at the commence- ment of his tenancy. History: Enacted March 21, 1S72. § 820. SAME. A tenant for years or at will has no other rights to the property than such as are given to him by the agreement or instrument by which his tenancy is acquired, or by the last section. History: Enacted March 21, 1872. §821. RIGHTS OF GRANTEES OF RENTS AND RE- VERSION. A person to whom any real property is trans- ferred or devised, upon which rent has been reserved, or to whom any such rent is transferred, is entitled to the same remedies for recovery of rent, for non-performance of any of the terms of the lease, or for any waste or cause of for- feiture, as his grantor or devisor might have had. History: Enacted March 21, 1872. §822. ASSIGNEE OR LESSEE, REMEDIES OF LES- SOR AGAINST. Whatever remedies the lessor of any real property has against his immediate lessee for the breach of any agreeinent in the lease, or for recovery of the pos- session, he has against the assignees of the lessee, for any cause of action accruing while they are such assignees, ex- cept where the assignment is made by way of security for a loan, and is not accompanied by possession of the premises. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 220; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 393, held unconsti- tutional, see history, § 4 ante; amendment re-enacted March 21, 1905. Stats, and Amdts. 1905, p. 599. 428 Tit.III,ch.I,art.I.] LESSEES AND ASSIGNS. §§823-827 §823. RIGHTS OF LESSEES AND THEIR ASSIGN- EES, ETC. Whatever remedies the lessee of any real prop- erty may have against his immediate lessor, for the breach of any agreement in the lease, he may have against the assigns of the lessor, and the assigns of the lessee may have against the lessor and his assigns, except upon covenants against encumbrances or relating to the title or possession of the premises. Hlstorj-: Enacted March 21, 1872. §824. REMEDY ON LEASES FOR LIFE. Rent due upon a lease for life may be recovered in the same manner as upon a lease for years. History: Enacted March L'l, 1872. §825. RENT DEPENDENT ON LIFE. Rent depend- ent on the life of a person may be recovered after as well as before his death. History: Enacted March 21, 1S72. § 826. REMEDY OF REVERSIONERS, ETC. A person having an estate in fee, in remainder or reversion, may main- tain an action for any injury done to the inheritance, not- withstanding an intervening estate for life or years, and al- though, after its commission, his estate is transferred, and he has no interest in the property at the commencement of the action. History: Enacted March 21, 1872. §827. LEASE, CHANGE OF TERM. [NOTICE.] In all leases of lands or tenements, or of any interest therein, from month to month, the landlord may, upon giving notice in writing at least thirty days before the expiration of the month, change the terms of the lease to take effect at the expiration of the month. 429 §827 CIVIL CODE. [Div.II.Pt.II. The notice, when served upon the tenant, shall of itself operate and be effectual to create and establish, as a part of the lease, the terms, rent, and conditions specified in the notice, if the tenant shall continue to hold the premises after the expiration of the month. History: Enacted March 30, 1874, Code Amdts. 1873-4, p. 220; amended February 26, 1907, Stats, and Amdts. 1907, p. 58, Kerr's Stats, and Amdts. 1906-7, p. 423. In effect from and after pass- age. 430 Tit.III,ch.I,art.II.] BOUNDARIES BY WATER. §§829-831 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 wliolly on land of one. § 834. Dine trees. §829. RIGHTS OF OWNER. The owner of land in fee has the right to the surface and to everything permanently situated beneath or above it. History: Enacted March 21, 1872. §830. BOUNDARIES BY WATER. Except where the grant under which the land is held indicates a different in- tent, the owner of the upland, when it borders on tide-wa- ter, 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. History: Enacted March 21, 1S72; amended March 30, 1S74, Code Amdts. 1873-4, p. 220; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 393, held unconsti- tutional, see history, § 4 ante. §831. BOUNDARIES BY WAYS. An owner of land bounded by a road or street is presumed to own to tlic cen- ter of the way, but the contrary may be shown. History: Enacted March 21, 1872. 431 . ■ ■ . §§832-834 CIVIL CODE. [Div.II,Pt.Il. §832. LATERAL AND SUBJACENT SUPPORT. Each coterminous owner is entitled to the lateral and subjacent support which his land receives from the adjoining land, sub- ject to the right of the owner of the adjoining land to make proper and usual excavations on the same for purposes of construction, on using ordinary care and skill, and taking reasonable precautions to svistain the land of the other, and giving previous reasonable notice to the other of his inten- tion to make such excavations. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 221. This section as originally enacted was taken from proposed Civil Code of New York. — Sullivan vs. Zeiner, 98 Cal. 346, 348, 33 Pac. Rep. 209, 20 L,. R. A. 730. South Dakota Comp. L,aw.s, 8 2784, an exact copy of this sec- tion. — See Novotny vs. Danforth, 9 S. D. 412. 69 N. W. Rep. 585. Utah Comp. Laws, § 2784, is substantially the same as this section, except that it omits the words "in its natural condi- tion" and also the words "when improved." — Ulrick vs. Dakota L. & T. Co., 2 S. D. 285, 49 N. W. Rep. 1054. §833. TREES WHOSE TRUNKS ARE WHOLLY ON LAND OF ONE. Trees whose trunks stand wholly upon the land of one owner belong exclusively to him, although their roots grow into the land of another. History: Enacted March 21, 1872. §834. LINE TREES. Trees whose trunks stand partly on the land of two or more coterminous owners, belong to them in common. History: Enacted March 21, 1872. 432 Tit.III.ch.IL] DUTIES OF OWNERS— FENCES. §§840-842 CHAPTER II. OBLIGATIONS OF OWNERS. § 840. Duties of tenant for life. § 841. Monuments and fences. § 842. Owners of ditches, flumes, etc. Liability to each other. § 843. Neglect to pay proportion of expenses; liability in action. §840. DUTIES OF TENANT FOR LIFE. The owner of a life estate must keep the buildings and fences in repair from ordinary waste, and must pay the taxes and other an- nual charges, and a just proportion of extraordinary assess- ments benefiting the whole inheritance. History: Enacted March 21, 1872. §841. MONUMENTS AND FENCES. Coterminous owners are mutually bound equally to maintain: 1. The botmdaries and monuments between them; 2. The fences between them, unless one of them chooses to let his land lie without fencing; in which case, if he after- wards incloses it, he must refund to the other a just pro- portion of the value, at that time, of any division fence made by the latter. History: Enacted March 21, 1872. This section is apparently based on 1 Rev. St. N. Y. 350, § 30. — See Ryan vs. Rochester & S. R. Co., 9 How. Pr. (N. Y.) 453, 455. As to lawful fence in counties named, see Act 1850, as amended by Act April 3, 1860 (Stats. 1860, p. 141). Gonzales vs. Wasson, 51 Cal. 295, 297. §842. OWNERS OF DITCHES, FLUMES, ETC. LIA- BILITY TO EACH OTHER. When two or more persons are associated by agreement in the use of a ditch, flume, 433 §843 CIVIL CODE. [Div.II,Pt.Il. pipe-line or other conduit for the conveyance of water, or who are using such ditch, flume, pipe-line or other conduit, or any part thereof, for the irrigation of land or for any oth- er lawful purpose, to the construction of which they or their grantors have contributed, he is liable to the others for the reasonable expenses of maintaining and repairing the same, and of distributing such water in proportion to the share to which he is entitled in the use of the water. History: Proposed by Code Commission and enacted March 16, 1901, Stats. Amdts. 1900-1, p. 393, held unconstitutional, see history, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 600. §843. NEGLECT TO PAY PROPORTION OF EX- PENSES; LIABILITY IN ACTION. If any one of them neglects, after demand in writing, to pay his proportion of such expenses, he is liable therefor in an action for contribu- tion, and in any judgment obtained against him interest from the time of such demand must be included. The action authorized by this section must be brought bj^ any or all of the parties who have contributed more than his or their just proportion of such expenses, and may be joint or sev- eral, and therein plaintiff may recover as costs, reasonable counsel fees, to be fixed by the court. History: Proposed by Code Commission and enacted March 16, 1901, Stats, and Amdts. 1900-1, p. 393. held unconstitutional, see history, § 4 ante; re-enacted March 21, 1905. Stats, and Amdts. 1905, p. 600. 434 \ Tit. IV.] USES AND TRUSTS. §847 TITLE IV. USES AND TRUSTS. § 847. What uses and trusts may exist. § 848. Right to possession of land creates legal ownership [repealed]. § S49.~ Certain trusts unaffected [repealed]. § 850. Trustees of estate for use of another take no interest [repealed]. § 851. Preceding sections qualified [repealed]. § 852. Trust must be in writing. § 853. Transfer to one for money paid by another. [Trust pre- sumed]. § 854. Rights of creditors [repealed]. § 855. Section eight hundred and fifty-three qualified [re- pealed]. § 856. Purchasers protected. § 857. For what purposes express trusts may be created. § 858. Vesting of mortgage powers. § 859. Profits of land liable to creditors in certain cases. § 860. Exercise of vested power. § 861. Creation of certain powers not prohibited [repealed]. § 862. Land, etc., to descend to persons entitled [repealed]. § 863. Trustees of express trusts to have whole estate. § 864. Author of trust may devise, etc. § 865. Title of grantor of trust property. § 866. Interests remaining in grantor of express trust. § 867. Restraining disposition of trusts. § 868. Powers over trust of party interested [repealed]. § 869. Effect of omitting trust in conveyance. § 870. Certain sales, etc., by trustees, void. § 871. When estate of tru.stee to cease. §847. WHAT USES AND TRUSTS MAY EXIST. Uses and trusts in relation to real property are those only which are specified in this title. History: Enacted March 21, 1872. See history to § 857 post. 435 §§848-853 CIVIL code. [Div.II,Pt.II. §848. RIGHT TO POSSESSION OF LAND CREATES LEGAL OWNERSHIP [repealed]. History: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 221. §849. CERTAIN TRUSTS UNAFFECTED [repealed]. Hisitory: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 221. §850. TRUSTEES OF ESTATE FOR USE OF AN- OTHER TAKE NO INTEREST [repealed]. History: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 221. §851. PRECEDING SECTIONS QUALIFIED [re- pealed]. ^ HLstory: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 221. §852. TRUST MUST BE IN WRITING. No trust in relation to real property is valid unless created or declared: 1. By a written instrument, subscribed by the trustee, or by his agent thereto authorized by writing; 2. By the instrument under which the trustee claims the estate affected; or, 3. By operation of law. Hi-story: Enacted March 21, 1872. §853. TRANSFER TO ONE FOR MONEY PAID BY ANOTHER. [TRUST PRESUMED.] When a transfer of real property is made to one person, and the considera- tion therefor is paid by or for another, a trust is presumed to result in favor of the person by or for whom such pay- ment is made. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4. p. 221. 436 Tit.IV.] PURPOSES OP TRUST. §§ 854-857 §854. RIGHTS OF CREDITORS [repealed]. Hi-story: Enacted March 21, 1S72; repealed March 30, 1S74, Code Amdts. 1S73-4, p. 221. §855. SECTION EIGHT HUNDRED AND FIFTY- THREE QUALIFIED [repealed]. History: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 221. § 856. PURCHASERS PROTECTED. No implied or re- sulting trust can prejudice the rights of a purchaser or en- cumbrancer of real property for value and without notice of the trust. History: Enacted March 21, 1872. §857. FOR WHAT PURPOSES EXPRESS TRUSTS MAY BE CREATED. Express trusts may be created for any of the following purposes: 1. To sell and convey real property and to hold or rein- vest or apply or dispose of the proceeds in accordance with the instrument creating the trust. 2. To mortgage or lease real property for the benefit of annuitants, or devisees or legatees, or other beneficiaries, or for the purpose of satisfying any charge thereon. 3. To receive the rents and profits of real property, and pay them to, or apply them to the use of any person, whether ascertained at the time of the creation of the trust or not, for himself or for his family during the life of such person, or for any shorter term, subject to the rules of title two of division two of part one of this code. 4. To receive the rents and profits of real property and to accumulate the same for the purposes and within the limits prescribed by the same title; or 5. To convey, partition, divide, distribute or allot real 437 §§858,859 CIVIL code. [Div.II,Pt.II. property in accordance with the instrument creating the trust, subject to the limitations of the same title. HLstory: Enacted March 21, 1872; amended March 30. 1874, Code Amdts. 1S73-4, p. 221; May 30, 1913, Stats, and Amdts. 1913, p. 438. In effect August 10, 1913. §858. VESTING OF MORTGAGE POWERS. Where a power to sell real property is given to a mortgagee, or other encumbrancer, in an instrument intended to secure the payment of money, the power is to be deemed a part of the security, and vests in any person who, by assignment, be- comes entitled to the money so secured to be paid, and may be executed by him whenever the assignment is duly ack- nowledged and recorded. HLstory: Enacted March 21, 1872; original provision repealed and above provision substituted therefor by Act March 30, 1874, Code Amdts. 1S73-4, p. 222. The above section a re-enactment of section 895 post (re- pealed). — In re Estate Fair, 132 Cal. 523, 557, 84 Am. St. Rep. 70, 60 Pac. Rep. 442, 64 Id. 1000. §859. PROFITS OF LAND LIABLE TO CREDITORS IN CERTAIN CASES. Where a trust is created to receive the rents and profits of real property, and no valid direction for accumulation is given, the surplus of such rents and profits, beyond the sum that may be necessary for the edu- cation and support of the person for whose benefit the trust is created, is liable to the claims of the creditors of such person, in the same manner as personal property which cannot be reached by execution. Hlstoo': Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 394, held unconstitutional, see history, § 4 ante. This section is taken from 1 N. Y. Rev. Stats. 729, § 57, which has received construction in Kllroy vs. "Wood, 42 Hun (N. Y.) 636. — See Magner vs. Croolcs, 139 Cal. 640, 642, 73 Pac. Rep. 585. 438 Tit. I v.] VESTED POWERS, ETC. §§860-864 §860. EXERCISE OF VESTED POWER. Where a power is vested in several persons, all must unite in its execu- tion; but, in case any one or more of them is dead, the power may be executed by the survivor or survivors, unless otherwise prescribed by the terms of the power. History: Enacted March 21, 1872; original section repealed and above provision substituted therefor by Act Marcli 30, 1874, Code Amdts. 1873-4, p. 222. The above section a verbatim re-enactment of section 90U post (repealed). — In re Estate Fair, 132 Cal. 523. 557, 84 Am. St. Rep. 70, 60 Pac. Rep. 442, 64 Id. 1000. §861. CREATION OF CERTAIN POWERS NOT PROHIBITED [repealed]. Hi-story: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 222. §862. LAND, ETC., TO DESCEND TO PERSONS EN- TITLED [repealed]. History: Enacted March 21. 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 222. §863. TRUSTEES OF EXPRESS TRUSTS TO HAVE WHOLE ESTATE. Except as hereinafter otherwise pro- vided, 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 take no es- tate or interest in the property, but may enforce the per- formance of the trust. History: Enacted March 21, 1872. §864. AUTHOR OF TRUST MAY DEVISE, ETC. Notwithstanding anything contained in the last section, the author of a trust may, in its creation, prescribe to whom the real property to which the trust relates shall belong, in the 439 §§865-869 CIVIL code. [Div.II.Pt.II. event of the failure or termination of the trust, and may transfer or devise such property, subject to the execution of the trust. History: Enacted March 21, 1S72. §865. TITLE OF GRANTOR OF TRUST PROPER- TY. The grantee or devisee of real property subject to a trust acquires a legal estate in the property, as against all persons except the trustees and those lawfully claiming un- der them. History: Enacted March 21, 1S72. §866. INTERESTS REMAINING IN GRANTOR OF EXPRESS TRUST. Where an express trust is created in relation to real property, every estate not embraced in the trust, and not otherwise disposed of, is left in the author of the trust or his successors. History: Enacted March 21, 1S72. §867. RESTRAINING DISPOSITION OF TRUSTS. The beneficiary of a trust for the receipt of the rents and profits of real property, or for the payment of an annuity out of such rents and profits, may be restrained from dispos- ing of his interest in such trust, during his life or for a term of years, by the instrument creating the trust. History: Enacted March 21, 1872; amended March 30, 1S74, Code Amdts. 1873-4, p. 223. §868. POWERS OVER TRUST OF PARTY INTER- ESTED [repealed]. History: Enacted March 21, 1872; repealed March 30, 1S74, Code Amdls. 1873-4, p. 223. §869. EFFECT OF OMITTING TRUST IN CONVEY- ANCE. Where an express trust is created in relation to real property, but is not contained or declared in the grant to 440 Tit. IV.] RALES BY TRUSTEES. §§870,871 the trustee, or in an instrument signed by him, and recorded in the same office with the grant to the trustee, such grant must be deemed absolute in favor of purchasers from such trustee without notice, and for a valuable consideration. Historj-: Enacted March 21, 1872; amended March 30. 1874, Code Amdts. 1873-4, p. 223. §870. CERTAIN SALES, ETC., BY TRUSTEES, VOID. Where a trust in relation to real property is ex- pressed in the instrument creating the estate every transfer or other act of the trustees, in contravention of the trust, is absolutely void. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 394, held unconstitutional, see history, § 4 ante. §871. WHEN ESTATE OF TRUSTEE TO CEASE. When the purpose for which an express trust was created ceases, the estate of the trustee also ceases. History: Enacted March 21, 1872. 441 TITLE V. POWERS [This title, embracing sections 878 to and including 940 of the original code, was repealed by Act A'larch 30, 1874, Code Amdts. 1873-4, p. 223.] 1. Purpose of title. — This title was intended to limit and restrict the power of the owners of real property. — In re Estate Fair, 132 Cal. 523, 557, 84 Am. St. Rep. 70, 60 Pac. Rep. 442, 64 Id. 1000. 2. Codes authorize creation of power. — Notwithstanding repeal of title in regard to powers, "in one respect the cre- ation of a power is still authorized by the codes." — Sacra- mento Bank vs. Alcorn, 121 Cal. 379, 384, 53 Pac. Rep. 813. 442 Tit. I.] PERSONAL PROPERTY. §§946,947 PART III. PERSONAL AND MOVABLE PROPERTY. Title L Personal Property in General, §§946-947. IL Particular Kinds of Personal Property, §§953-994. TITLE L PERSONAL PROPERTY IN GENERAL. " § 94 6. By what law governed. § 947. Future interests in perislialile property, how protected [repealed]. §946. BY WHAT LAW GOVERNED. If there is no law to the contrary, in the place where personal property is situated, it is deemed to follow the person of its owner, and is governed by the law of his domicile. History: Enacted March 21. 1S72; repealed March 30, 1874, Code Amdts. 1873-4, p. 223; re-enacted as above March 9, 1S76. Code Amdts. 1875-6, p. 78. §947. FUTURE INTERESTS IN PERISHABLE PROPERTY, HOW PROTECTED [repealed]. History: Enacted March 21, 1S72; repealed March ^0, 1874, Code Amdts. 1873-4, p. 223. 443 Tit.II.ch.J.] KINDS OF PERSONALTY. §§953,954 TITLE II. PARTICULAR KINDS OF PERSONAL PROPERTY Chapter I. Things in Action, §§ 953-955. II. Shipping, §§960-973. III. Products of the Mind, §§980-985. IV. Other Kinds of Personal Property, §§991-995. CHAPTER I. THINGS IN ACTION. § 953. Things in action defined. § 954. Transfer and survivorship. § 955. Assignment of wages. §953. THINGS IN ACTION DEFINED. A thing in action is a right to recover money or other personal prop- erty by a judicial proceeding. History: Enacted March 21, 1872; amended March 30. 1ST4, Code Amdts. 1873-4, p. 224. §954. TRANSFER AND SURVIVORSHIP. A thing in action, arising out of the violation of a right of property, or out of an obligation, may be transferred by the owner. Upon the death of the owner it passes to his personal rep- resentatives, except where, in the cases provided in the Code of Civil Procedure, it passes to his devisees or successor in office. History: Enacted March 21, 1872. See Practice Act 1851, § 4, and other statutes referred to in brief in Gray vs. Garrison, 9 445 §955 CIVIL CODE. [Div.II.Pt.III. Cal. 325, 327; Act May 15, 1854, § 4, and Act May 7, 1855, Ryan vs. Maddux, 6 Cal. 247, 248; Acts 1851, 1854, 1855, and 1864, referred to in More vs. Masslni, 32 Cal. 590, 593. South Dakota Comp. Laws, § 2877 is identical. — Erickson vs. Brookings Co., 3 S. D. 434, 53 N. W. Rep. 857. §955. ASSIGNMENT OF WAGES. No assignment of, or order for, wages or salary shall be valid unless made in writing by the person by whom the said wages or salary are earned and no assignment of, or order for, wages or salary made by a married person shall be valid unless the written consent of the husband or wife of the person making such assignment or order is attached to such assignment or order; and no assignment or order for wages or salary of a minor shall be valid unless the written consent of a parent or the guardian of such minor is attached to such order or assign- ment. No assignment of, or order for, wages or salary shall be valid unless at the time of the making thereof, such wages or salary have been earned, except for the necessities of life and then only to the person or persons furnishing such nec- essities of life directly and then only for the amount needed to furnish such necessities. [Power of attorney revocable.] Any power of attorney to assign or collect wages or salary shall be revocable at any time by the maker thereof. Hi-story: Enacted June 7, 1913, Stats, and Amdts. 1913, p. 537. lu effect August 10, 1913. 446 Tit.H.ch.TT.art.T.] SHIP, WHAT IS A. §§960.961 CHAPTER II. SHIPPING Article I. General Provisions, §§960-966 II. Rules of Navigation, §§970-973. ARTICLE I. GENERAL PROVISIONS. § 960. Definition of a ship. § 961. Appurtenances and equipments. § 962. Foreign and domestic navigation. § 963. Foreign and domestic ships distinguished. § 964. Several owners. § 965. Owner for voyage. § 966. Registry, etc. §960. DEFINITION OF A SHIP. The term "ship or shipping," w^hen used in this code, includes steamboats, sail- ing vessels, -canal-boats, barges, and every structure adapted to be navigated from place to place for the transportation of merchandise or persons. •tisTory: Enacted March 21, 1S72; amended March 30 1S7I, Code Amdts. 1873-4, p. 224. §961. APPURTENANCES AND EQUIPMENTS. All things, belonging to the owners, which are on board a ship, and are connected with its proper use, for the objects of the voyage and adventure in which the ship is engaged, are deemed its appurtenances. Hlotory: Enacted March 21, 1872. 447 §§962-966 CIVIL code. [Div.II.Pt.III. §962. FOREIGN AND DOMESTIC NAVIGATION. Ships are engaged either in foreign or domestic navigation, or in the fisheries. Ships are engaged in foreign navigation when passing to or from a foreign country; and in domestic navigation, when passing from place to place within the United States. History: Enacted March 21, 1872. §963. FOREIGN AND DOMESTIC SHIPS DISTIN- GUISHED. A ship in a port of the state to which it be- longs is called a domestic ship; in another port it is called a foreign ship. History: Enacted March 21, 1872. §964. SEVERAL OWNERS.- If a ship belongs to sev- eral persons, not partners, and they differ as to its use or repair, the controversy may be determined by any court of competent jurisdiction. History: Enacted March 21, 1872. §965. OWNER FOR VOYAGE. If the owner of a ship commits its possession and navigation to another, that other, and not the owner, is responsible for its repairs and sup- plies. History: Enacted March 21, 1872. §966. REGISTRY, ETC. The registry, enrolment, and license of ships are regulated by acts of Congress. History: Enacted March 21, 1872. 448 Tit.II,ch.II.art.II.] NAVIGATION— RULES OF. §970 ARTICLE II. RULES OF NAVIGATION. § 970. Collisions: 1. Rules as lo ships meeting each other. 2. The rule for sailing vessels. 3. Rules for steamers in narrow channels. 4. Same. [Pass on starboard side.] .5. Rules for steam vessels on different courses. 6. Meeting of steamers. § 971. Collision from breach of rules. § 972. Breaches of such rules to imply wilful default. § 973. Loss, how apportioned. §970. COLLISIONS. In the case of ships meeting, the following rules must be observed, in addition to those pre- scribed by that part of the Political Code which relates to navigation: 1. Rules as to ships meeting each other. Whenever any ship, whether a steamer or sailing ship, proceeding in one di- rection, ineets another ship, whether a steamer or sailing ship, proceeding in another direction, so that if both ships were to continue their respective courses they would pass so near as to involve the risk of a collision, the helms of both ships must be put to port so as to pass on the port side of each other; and this rule applies to all steamers and all sail- ing ships, whether on the port or starboard tack, and whether close-hauled or not, except where the circumstances of tlic case are such as to render a departure from the rule neces- sary in order to avoid immediate danger, and subject also to a due regard to the dangers of navigation, and, as regards sailing ships on the starboard tack close-hauled, to the keep- ing such ships under command; 2. Rules for sailing vessels. In the case of sailing vessels, those having the wind fair must give way to those on a 15 449 §971 . CIVIL CODE. [Div.II.Pt.III. wind. When both are going by the wind, the vessel on the starboard tack must keep her wind, and the one on the lar- board tack bear up strongly, passing each other on the lar- board hand. When both vessels have the wind large or abeam, and meet, they must pass each other in the same way on the larboard hand, to effect which two last-mentioned objects the helm must be put to port. Steam vessels must be regarded as vessels navigating with a fair wind, and should give way to sailing vessels on a wind of either tack; 3. Rules for steamers in narrow channels. A steamer nav- igating a narrow channel must, whenever it is safe and prac- ticable, keep to that side of the fairway or mid channel which lies on the starboard side of the steamer; 4. Same. [Pass on starboard side.] A steamer when passing another steamer in such channel, must always leave the other upon the larboard side; 5. Rules for steam vessels on different courses. When steamers must inevitably or necessarily cross so near that by continuing their respective courses, there would be a risk of collision, each vessel must put her helm to port, so as al- ways to pass on the larboard side of each other; 6. Meeting of steamers. The rules of this section do not apply to any case for which a different rule is provided by the regulations for the government of pilots of steamers ap- proaching each other within the sound of the steam-whistit, or by the regulations concerning lights upon steamers, pre- scribed by or under authority of the laws of the United States. Histiiry: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 394, held unconstitutional, see history, § 4 ante; amendment re-enacled March 21, 1905, Stats, and Amdts. 1905, p. 600. §971. COLLISION FROM BREACH OF RULES. If it appears that a collision was occasioned by failure to observe any rule of the foregoing section, the owner of the ship by 450 Tit.II,ch.II,art.lI.] BREACH OP RULES— LOSS. §§972,973 which such rule is infringed cannot recover compensation for damages sustained by the ship in such collision, unless it appears that the circumstances of the case made a departure from the rule necessarj'. History: Enacted March 21, 1S72. §972. BREACHES OF SUCH RULES TO IMPLY WILFUL DEFAULT. Damage to person or property arising from the failure of a ship to observe any rule of sec- tion nine hundred and seventj^ must be deemed to have b&en occasioned by the wilful default of the person in charge of the deck of such ship at the time, unless it appears that the circumstances of the case made a departure from the rule necessary. History: Enacted March 21, 1872. §973. LOSS, HOW APPORTIONED. Losses caused by collision are to be borne as follows: 1. If either party was exclusively in fault he must bear his own loss, and compensate the other for any loss he has sustained; 2. If neither was in fault, the loss must be borne by him on whom it falls; 3. If both were in fault, the loss is to be equally divided, unless it appears that there was a great disparity in fault, in which case the loss must be equitably apportioned; 4. If it cannot be ascertained where the fault lies, the loss must be equall}' divided. History: Enacted March 21, 1872. 451 §§980-982 CIVIL CODE. [Div.II,Pt.IIl. CHAPTER III. PRODUCTS OP THE MIND. § 980. How far the .subject of ownership. § 981. Joint authorship. § 9S2. Transfer. § 983. Effect of publication. § 984. Subsequent inventor, author, etc. § 985. Private writings. §980. HOW FAR THE SUBJECT OF OWNERSHIP. The author of any product of the mind, whether it is an invention, or a composition in letters or art, or a design, with or without delineation, or other graphical representa- tion, has an exclusive ownership therein, and in the repre- sentation or expression thereof, which continues so long as the product and the representations or expressions thereof made by him remain in his possession. History: Enacted March 21, 1872. § 981. JOINT AUTHORSHIP. Unless otherwise agreed, a product of the mind in the production of which several persons are jointly concerned, is owned by them as fol- lows: 1. If the product is single, in equal proportions; 2. If it is not single, in proportion to the contribution of each. History: Enacted March 21, 1872. §982. TRANSFER. The owner of any product of the mind, or of any representation or expression thereof, may transfer his property in the same. History: Enacted March 21, 1872. 452 Tit.II.ch.III.] EFFECT OP PUBLICATION. §§983-985 §983. EFFECT OF PUBLICATION. If the owner of a product of the mind intentionally makes it public, a copy or reproduction may be made public by any person, without responsibility to the owner, so far as the law of this state is concerned. History: Enacted March 21, 1872. §984. SUBSEQUENT INVENTOR, AUTHOR, ETC. If the owner of a product of the mind does not make it pub- lic, any other person subsequently and originally produc- ing the same thing has the same right therein as the prior author, which is exclusive to the same extent against all per- sons except the prior author, or those claiming under him. History: Enacted March 21, 1S72. § 985. PRIVATE WRITINGS. Letters and other private communications in writing belong to the person to whom they are addressed and delivered; but they cannot be pub- lished against the will of the writer, except by authority of law. History: Enacted March 21, 187 2. 453 §§991-993 CIVIL CODE. [Div.II,Pt.III. CHAPTER IV. OTHER KINDS OF PERSONAL PROPERTY. § 991. Trade-marks and signs. § 992. Good-will of business. § 993. Good-will and name, transfer of. § 994. Title deeds. § 995. "Tare" on baled hops. §991. TRADE-MARKS AND SIGNS. One who pro- duces or deals in a particular thing, or conducts a particular business, may appropriate to his exclusive use, as a trade- mark, any form, symbol, or name which has not been so ap- propriated by another, to designate the origin or ownership thereof; but he cannot exclusively appropriate any designa- tion, or part of a designation, which relates only to the name, quality, or the description of the thing or business, or the place where the thing is produced, or the business is carried on. HLstiiry: Enacted March 21, 1872; amended March 30, 1S74, Code Amdts. 1873-4, p. 224. See Act 1863. — Derringer vs. Plate, 29 Cal. 292, 294, 87 Am. Dec. 170. §992. GOOD-WILL OF BUSINESS. The good-will of a business .is the expectation of continued public patronage, but it does not include a right to use the name of any per- son from whom it was acquired. History: Enacted March 21, 1872. §993. GOOD-WILL AND NAME, TRANSFER OF. The good-will of a business is propertj^ transferable like any other, and the person transferring it may transfer with 454 Tit. II, ch. IV.] TITLE DEEDS— "TARE." §§994,995 it the right of using the name under which the business is conducted. History: Enacted March 21, 1872; amended by Code Commis- sion, Act Marcli 16, 1901, Stats, and Amdts. 1900-1, p. 395, held unconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 602. §994. TITLE DEEDS. Instruments essential to the title of real property, and which are not kept in a public office as a record, pursuant to law, belong to the person in whom, for the time being, such title may be vested, and pass with the title. History: Enacted March 21, 1872. §995. "TARE" ON BALED HOPS. There shall be al- lowed on baled hops a tare at the rate of two per centum of the weight of the bale for the cloth and other material used in baling; that is, the tare shall be at the rate of two pounds per hundred on the weight of the bale. History: Enacted March 21, 1907, Stats, and Amdts. 1907, p. 845, Kerr's Stats, and Amdts. 1906-7, p. 423. 45S PART IV. ACQUISITION OF PROPERTY Title I Modes in which property may be acquired, §§ 1000- 1001. II. Occupancy, §§ 1006-1007. III. Accession, §§ 1013-1033. IV. Transfer, §§ 1039-1231. V. Homesteads, §§ 1237-1269c. VI. Wills, §§ 1270-1377. VII. Succession, §§ 1383-1408. VIII. Water Rights, §§ 1410-1422. IX. Hydraulic Mining, §§ 1424-1425. X. Locating Mining Claims, Tunnel Rights, Mill-sites, §§ 1426-1426S. 457 Tit.I.] ACQUISITION OF PROPERTY. §§ IQOO, 1001 TITLE I. MODES IN WHICH PROPERTY MAY BE ACQUIRED § 1000. Property, how acquired. § 1001. Acquisition of property by exercise of eminent domain. § 1000. PROPERTY, HOW ACQUIRED. Property is acquired by: 1. Occupancy; 2. Accession; 3. Transfer; 4. Will; or, 5. Succession. History: Enacted March 21, 1872. § 1001. ACQUISITION OF PROPERTY BY EXER- CISE OF EMINENT DOMAIN. Any person may, without further legislative action, acquire private property for any use specified in section twelve hundred and thirty-eight of the Code of Civil Procedure either by consent of the owner or by proceedings had under the provisions of title seven, part three, of the Code of Civil Procedure; and any person seeking to acquire property for any of the uses mentioned in'such title is "an agent of the state," or a "person in charge of such use," within the meaning of those terms as used in such title. This section shall be in force from and after the fourth day of April, eighteen hundred and seventy-two. History: Enacted March 21, IS? 2. 459 §§1006,1007 CIVIL CODE. [Div.II,Pt.]V. TITLE II. OCCUPANCY. § 1006. Simple occupancy. § 1007. Prescription. § 1006. SIMPLE OCCUPANCY. Occupancy for any pe- riod confers a title sufficient against all except the state and those Avho have title by prescription, accession, transfer, will, or succession; provided, however, that the title con- ferred by such occupancy shall not be a sufficient interest in real property to entitle the occupant or his pivies to com- mertce or maintain an action to quiet title under the provi- sions of section seven hundred thirty-eight of the Code of Civil Procedure of this state, unless such occupancy shall have ripened into title by prescription. History: Enacted March 21, 1S72; amended May 29, 1915, Stats, and Amdts. 1915, p. 93S. In effeot August 8, 1915. § 1007. PRESCRIPTION. Occupancy for the period pre- scribed by the Code of Civil Procedure, as sufficient to bar an action for the recovery of the property confers a title thereto, denominated a title by prescription, which is suf- ficient against all. History: Enacted March 21, 1872. * 460 Tit.III,ch.I.] FIXTURES— ALLUVION. §§1013,1014 TITLE III. ACCESSION. Chapter I. To Real Property, §§ 1013-1019. II. To Personal Property, §§ 1025-1033. CHAPTER I. ACCESSION TO REAL PROPERTY. § 1013. Fixtures. § 1014. Alluvion. § 1015. Sudden removal of bank. § 1016. Islands, in navigable streams. § 1017. [Same.]' In unnavigable streams. § 1018. Islands formed by division of stream. § 1019. Fixtures, removal of by tenant. § 1013. FIXTURES. When a person affixes his property to the land of another, v^^ithout an agreement permitting him to remove it, the thing affixed, except as provided in sec- tion ten hundred and nineteen, belongs to the owner of the land, unless he chooses to require the former to remove it. History: Enacted March 21, 1S72; amended March 30, 1874, Code Amdts. 1873-4, p. 224. § 1014. ALLUVION. Where, from natural causes, land forms by imperceptible degrees upon the bank of a river or stream, navigable or not navigable, either by accumulation of material or by the recession of the stream, such land be- longs to the owner of the bank, subject to an}- existing right of way over the bank. History: Enacted Mai'ch 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 395, held unconstitutional, see history, § 4 ante. 461 §§1015-1019 CIVIL CODE. [Div.II.Pt.lV. § 1015. SUDDEN REMOVAL OF BANK. If a river or stream, navigable or not navigable, carries away, by sudden violence, a considerable and distinguishable part of a bank, and bears it to the opposite bank, or to another part of the same bank, the owner of the part carried away may reclaim it within a year after the owner of the land to which it has been united takes possession thereof. History: Enacted March 21. 1S72. § 1016. ISLANDS, IN NAVIGABLE STREAMS. Is- lands and accumulations of land, forined in the beds of streams which are navigable, belong to the state, if there is no title or prescription to the contrary. History: Enacted March 21, 18 72. § 1017. [SAME.] IN UNNAVIGABLE STREAMS. An island, or an accumulation of land, formed in a stream which is not navigable, belongs to the owner of the shore on that side where the island or accumulation is formed; or, if not formed on one side only, to the owners of the shore on the two sides, divided by an imaginary line drawn through the middle of the river. History: Enacted March 21, 1872; amended by Code Commi.s- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 395, held unconstitutional, see history, § 4 ante. § 1018. ISLANDS FORMED BY DIVISION OF STREAM. If a stream, navigable or not navigable, in form- ing itself a new arm, divides itself and surrounds land be- longing to the owner of the shore, and thereby forms an is- land, the island belongs to such owner. History: Enacted March 21, 1872. § 1019. FIXTURES, REMOVAL OF BY TENANT. A tenant may remove from the demised premises, an}- time dur- 462 Tit.III.ch.II.] ACCESSION BY UNITING. §§ 1025, 1026 ing the continuance of his term, anything affixed thereto for purposes of trade, manufacture, ornament, or domestic use, if the removal can be effected without injury to the premises, unless the thing has, by the manner in which it* is affixed, become an integral part of the premises. History: Original section, relating to abandonment of bed of stream, enacted March 21, 1872, was repealed and the above pro- vision substituted therefor by Act March 30, 1874, Code Amdts. 1873-4, p. 225. • CHAPTER II. ACCESSION TO PERSONAL PROPERTY. § 1025. Accession by uniting several things. § 1026. Principal part, what. § 1027. Same. [The more valuable of bulky.] § 1028. Uniting materials and workmanship. § 1029. Inseparable materials. § 1030. Materials of several owners. § 1031. Wilful trespassers. §.1032. Owner may elect between the thing and its value. § 1033. Wrong-doer liable in damages. § 1025. ACCESSION BY UNITING SEVERAL THINGS. When things belonging to difterent owners have been united so as to form a single thing, and cannot be sep- arated w'ithout injury, the whole belongs to the owner of the thing which forms the principal part; who must, how- ever, reimburse the value of the residue to the other owner, or surrender the whole to him. History: Enacted March 21, 1872. § 1026. PRINCIPAL PART, WHAT. That part is to be deemed the principal to which the other has been united only for the use, ornament, or completion of the former, 463 §§1027-1030 CIVIL CODE. [Div.II,Pt.IV. unless the latter is the more valuable, and has been unitea without the knowledge of its owner, who may, in the latter case, require it to be separated and returned to him, although some injufy should result to the thing to which it has been united. History: Enacted March 21, 1872. I § 1027. SAME. [THE MORE VALUABLE OR BULKY.] If neither can be considered the principal, with- in 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. History: Enacted March 21, 1872. § 1028. UNITING MATERIALS AND WORKMAN- SHIP. If one makes a thing from materials belonging to another, the latter may claim the thing on reimbursing the value of the workmanship, unless the value of the work- manship exceeds the value of the materials, in which case the thing belongs to the maker, on reimbursing the value of the materials. History: Enacted March 21, 1872. §1029. INSEPARABLE MATERIALS. Where one has made use of materials which in part belong to him and in part to another, in order to form a thing of a new descrip- tion, without having destroyed any of the materials, but in such a way that they cannot be separated without incon- venience, the thing foriped is common to both proprietors; in proportion, as respects the one, of the materials belong- ing to him, and as respects the other, of the materials be- longing to him and the price of his workmanship. History: Enacted March 21, 1872. § 1030. MATERIALS OF SEVERAL OWNERS. When a thing has been formed by the admixture of several mate- 464 Tit.III.ch.lI.] . TRESPASS— ELECTION. §§1031-1033 rials of different owners, and neither can be considered the principal substance, an owner without whose consent the admixture was made may require a separation, if the mate- rials can be separated without inconvenience. If they can- not be thus separated, the owners acquire the thing in com- mon, in proportion to the quantity, quality, and value of their materials; but if the materials of one were far superior to those of the others, both in quantity and value, he may claim the thing on reimbursing to the others the value of their materials. History: Enacted March 21, 1ST2. i § 1031. WILFUL TRESPASSERS. The foregoing sec- tions of this article are not applicable to cases in which one wilfully uses the materials of another without his consent; but, in such cases, the product belongs to the owner of the material, if its identity can be traced. HLstory: Enacted March 21, 1S72. § 1032. OWNER MAY ELECT BETWEEN THE THING AND ITS VALUE. In all cases where one whose material has been used without his knowledge, in order to form a product of a different description, can claim an in- terest in such product, he has an option to demand either restitution of his material in kind, in the same quantity, weight, measure, and quality, or the value thereof; or where he is entitled to the product, the value thereof in place of the product. Hi.story: Enacted March 23, liS72. §1033. WRONG-DOER LIABLE IN DAMAGES. One who wrongful!}' employ's materials belonging to anotlier is liable to him in damages, as well as under the foregoing pro- visions of this chapter. History: Enacted March 21, 1872. 465 . §1039 CIVIL CODE. [Div.II,Pt.IV. TITLE IV. TRANSFER The obligations of the parties to a transfer for considera- tion, or to a contract of hiring, are regulated by the titles on sales, on exchange, and on hiring. Transfers in trust for the benefit of creditors are regulated by the part on debt- or and creditor. — Commissioners' note. Chapter I. Transfer in General, §§ 1039-1085. II. Transfer of Real Property, §§1091-1115. III. Transfer of Personal Property, §§ 1135-1153. IV. Recording Transfers of Real Property, §§ 1158- 1218. V. Unlawful Transfers, §§ 1227-1231. CHAPTER I. TRANSFERS IN GENERAL Article I. Definition of Transfer, §§ 1039-1040 II. What May Be Transferred, §§1044-1047. III. Mode of Transfer, §§ 1052-1060. IV. Interpretation of Grants, §§ 1066-1072. V. Effect of Transfer, §§ 1083-1085. 466 Tit.IV.ch.I.arts.1,11.] TRANSFERS. §1039-1045 ARTICLE I. DEFINITION OF TRANSFER. § 1039. Transfer, what. § 1040. Voluntary transfer. § 1039. TRANSFER, WHAT. Transfer is an act of the parties, or of the law, by which the title to property is con- veyed from one living person to another. History: Enacted March 21, 1872. § 1040. VOLUNTARY TRANSFER. A voluntary trans- fer is an executed contract, subject to all rules of law con- cerning contracts in general; except that a consideration is not necessary to its validity. I History: Enacted March 21, 1872. ARTICLE II. WHAT MAY BE TRANSFERRED. § 1044. "What may be transferred. § 1045. Possibility. § 1046. Right of re-entry can be transferred. § 1047. Owner ousted of possession may transfer. § 1044. WHAT MAY BE TRANSFERRED. Property of any kind maj' be transferred, except as otherwise provid- ed by this article. Hi.story: Enacted March 21, 1872. § 1045. POSSIBILITY. A mere possibility, not coupled with an interest, cannot be transferred. History: Enacted March 21, 1872. 467 §§1046-1053 CIVIL CODE. [Div.II.Pt.lV. § 1046. RIGHT OF RE-ENTRY CAN BE TRANS- FERRED. A right of re-entry, or of repossession for breacli of condition subsequent, can be transferred. History: Enacted March 21, 1872. § 1047. OWNER OUSTED OF POSSESSION MAY TRANSFER. Any person claiming title to real property in the adverse possession of another may transfer it with the same effect as if in actual possession. History: Enacted March 21, 1S72. ARTICLE III. MODE OF TRANSFER. § 1052. T\ hen oral. § 1053. Grant, what. § 1054. Delivery necessary. § 1055. Date. § 1056. Delivery to grantee is necessarily absolute. § 1057. Delivery in escrow. § 1058. Surrendering or canceling grant does not reconvey. § 1059. Constructive delivery. § 1060. Gratuitous grants take effect immediately; exception [repealed]. § 1052. WHEN ORAL. A transfer may be made with- out writing, in every case in which a writing is not express- ly required by statute. History: Enacted March 21, 1872. § 1053. GRANT, WHAT. A transfer in writing is called a grant, or convej^ance, or bill of sale. The term "grant," in this and the next two articles, includes all these instru- ments, unless it is specially applied to real property. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 225. ^ 468 Tit.IV,ch.I,art.TIT.l DELIVERY— ESCROW. §§ 1054-1059 § 1054. DELIVERY NECESSARY. A grant takes ef- fect, so as to vest the interest intended to be transferred, only upon its delivery by the grantor. History: Enacted March 21, 1872. § 1055. DATE. A grant duly executed is presumed to have been delivered at its date. History: Enacted March 21, 1ST2. § 1056. DELIVERY TO GRANTEE IS NECESSAR- ILY ABSOLUTE. A grant cannot be delivered to the grantee conditionally. Delivery to him, or to his agent as such, is necessarily absolute, and the instrument takes ef- fect thereupon, discharged of any condition on which the delivery was made. Hi.story: Enacted March 21, 1872. § 1057. DELIVERY IN ESCROW. A grant may be de- posited by the grantor with a third person, to be deliveret. on performance of a condition, and, on delivery by the de- positary, it will take efifect. While in possession of the third person, and subject to condition, it is called an escrow. Hi^sto^y: Enacted March 21, 1872. § 1058. SURRENDERING OR CANCELING GRANT DOES NOT RECONVEY. Redelivering a grant of real property to the grantor, or canceling it, does not operate to retransfer the title. History: Enacted Marcli 21, 1872. § 1059. CONSTRUCTIVE DELIVERY. Though a grant be not actually deliverer posses- 483 §1160 CIVIL CODE. [Div.II.Pt.IV. sion of real property, authenticated by the certificate of the clerk of the court in which such judgments were rendered (and notices of location of mining claims), may be recorded without acknowledgment, certificate of acknowledgment, or further proof. [Work upon mining claims.] The record of all notices of location of mining claims heretofore made in the proper of- fice without acknowledgment, or certificate of acknowledg- ment, or other proof, shall have the same force and effect for all purposes as if the same had been duly acknowledged, or proved and certified as required by law. Affidavits showing work or posting of notices upon mining claims may also be recorded in the recorder's office of the county where such mining claims are situated. History: Enacted March 21, 1872; amended March 9, 1S87, Stats, and Amdts. 1897, pp. 97, 98. In effect March 9, 1897. § 1160. LETTERS PATENT MAY BE RECORDED WITHOUT ACKNOWLEDGMENT. Letters patent from the United States, or from the state of California, executed and authenticated pursuant to existing law, may be recorded without acknowledgment or further proof, and where letters patent have been lost, or are beyond the control of any party deraigning title therefrom, or for any reason they remain un- recorded, any person claiming title thereunder may cause a transcript of the copy of such letters patent kept by the gov- ernment issuing the same, duly certified by the officer or individual having lawful custody of such copy, to be re- corded in lieu of the original; and such recorded copy shall have, prima facie, the same force and effect as the original, for title or for evidence, until said original letters patent be recorded. History: Enacted March 21, 1872; amended April 1, 1878, Code Amdts. 1S77-S, p. 86. 484 Tit.IV.ch.IV.art.I.] ackxowledgmknt. §§1161-1163 § 1161. INSTRUMENTS MUST BE ACKNOWL- EDGED, EXCEPT, ETC. Before an instrument can be recorded, unless it belongs to the class provided for in either section eleven hundred and fifty-nine, eleven hundred and sixty, twelve hundred and two, or twelve hundred and three, its execution must be acknowledged by the person executing it, or if executed by a corporation, by its president or secre- tary, or other person executing the same on behalf of the corporation, or proved by a subscribing witness, or as pro- vided in sections eleven hundred and ninety-eight and eleven hundred and ninety-nine, and the acknowledgment or proot certified in the manner prescribed bj^ article three of this chapter. Histdry: Enacted March 21, 1S7-2; amended March 30, 1871, Code Amdts. 1S73-4, p. 226; by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 396, held unconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 602. §1162. SAME. [CERTIFIED INSTRUMENTS RE- CORDED, WHEN.] An instrument proved and certified pursuant to sections eleven hundred and ninety-eight and eleven hundred and ninety-nine may be recorded in the proper office if the original is at the same time deposited therein to remam for public inspection, but not otherwise. History: Enacted March 21, 1S72. §1163. CERTIFICATE OF RESIDENCE FILED WITH RECORDER SHOWING WHERE SERVICE OF- SUMMONS MAY BE MADE. Any person, firm, or cor- poration, may record in the ofiice of the county recorder of any county in the state of California a certificate setting forth the name of said person, firm, or corporation, and the place of residence of said person, firm, or corporation, and the place where service of summons may be made upon said person, firm, or corporation. The said certificate must be 485 §§1164,1165 CIVIL CODE. [Div.II,Pt.IV. verified by the oalh of the person, or of a member of the firm, or officer of the corporation making the same, and may be recorded without acknowledgment. Such person, firm or corporation may upon a change of place of residence file affidavit as herein provided and such last affidavit filed shall be the place designated as the place where service of sum- mons may be made as herein provided. The fee of the recorder for recording said certificate shall be fifty cents; and the recorder shall keep in his office an index entitled "Index to Certificates of Residence," in which must be entered the name of the person, firm, or corporation in whose behalf said certificate- was filed. History: Original section, providing that instruments enacted under power of attorney should not be recorded until the power of attorney was filed, was repealed March 30, 1873-4, p. 226. The above section is a new provision added, under old section number, March 18, 190.5, Stats, and Amdts. 1905, pp. 139, 140. § 1164. TRANSFER IN TRUST, ETC. Transfers of property in trust for the benefit of creditors, and transfers or liens on property by way of mortgage, are required to be recorded in the cases specified in the titles on the special relation of debtor and creditor, and the chapter on mort- gages, respectively. History: Enacted March 21, 1872. § 1165. RECORDER'S FEES TO BE INDORSED. The recorder must, in all cases, indorse the amount of his fee for recordation on the instrument recorded. History: Enacted March 11, 1874. Code Amdts. 1873-4, p. 275. 486 Tit.TV,ch.-lV,art.lI.] RECORDING— MODE OF. §§1160-1173 ARTICLE II. MODE OF RECORDING. § 1169. In what office. § 1170. instrument, when deemed recorded. § 1171. Books of record. § 1172. Duties of recorder. § 1173. Transfer of vessels. § 1169. IN WHAT OFFICE. Instruments entitled to be recorded must be recorded by the county recorder of the county in which the real property affected thereby is sit- uated. History: Enacted March 21, 1872. § 1170. INSTRUMENT, WHEN DEEMED RECORD- ED. An instrument is deemed to be recorded when, being duly acknowledged or proved and certified, it is deposited in tlie recorder's office, with the proper officer, for record. History: Enacted March 21, 1S72; amended March 30, 1874, Code Amdts. 1S73-4, p. 227. § 1171. BOOKS OF RECORD. Grants, absolute in terms, are to ])e recorded in one set of books, and mortgages in another. History: Enacted March 21, 1872. § 1172. DUTIES OF RECORDER. The duties of county recorders, in respect to recording instruments, are prescril)ed by the Political Code. Hi.story: Enacted March 21, 1S72. § 1173. TRANSFER OF VESSELS. The mode of re- cording transfers of ships registered under the laws of the United States is regulated by acts of Congress. History: Enacted March 21, 1S72. • 487 §1180 CIVIL CODE. [Div.II,Pt.IV, ARTICLE III. PROOF AND ACKNOWLEDGMENT OP INSTRUMENTS. § IISO. By whom acknowledgments may be taken in this slate. § 1181. Same. §"1182. By whom taken without the state. § 1183. By whom taken without the United States. § 1184. Deputy can take acknowledgment. § 1185. Requisites for acknowledgments. § 1186. Acknowledgment by married women [repealed]. § 1187. Conveyance by married woman. Acknowledgment. § 1188. [Same.] Certificate. § 1189. General form of certificate. [Outside of state.] § 1190. Form of acknowledgment by corporation. § 1191. Form of certificate of acknowledgment by married women [repealed]. § 1192. Form of certificate of acknowledgment by attorney in fact. § 1193. Officers must affix their signatures. § 1194. Certificate of authority of justices in certain cases. § 1195. Proof of execution, how made. § 1196. Witness must be personally known to officer. § 1197. Witness must prove, what. § 1198. Handwriting may be proved, when. § IIG'S. Evidence of handwriting must prove, what. § 1200. Certificate of proof. § 1201. Officers authorized to do certain things. § 1202. Instrument improperly certified, how corrected. § 1203. Judgment proving instrument. $ 1204. Effect of judgment in such action. § 1205. Conveyances heretofore made to be goverjied by tlien existing laws. § 1206. Recording, and as evidence, to be governed by then existing laws. § 1207. Validating defectively executed instruments. Record imparts notice. Certified copies. §1180. BY WHOM ACKNOWLEDGMENTS MAY BE TAKEN IN THIS STATE. The proof or acknowledgment of an instrument may be made at any place within this state Tit.IV,ch.IV,art.III.] acknowledgment. §§ ngi^ 1182 before a justice or clerk of the superior court, or judge of a superior court. History: Enacted March 21, 1872; amended April 3, ISSO, Code Amdts. 1880 (C. C. pt.), p. 2. § 1181. SAME. The proof or acknowledgment of an in- strument may be made in this state, within the city, county, city and county, township or district for which the officer was elected, or appointed, before either: 1. A clerk of a court of record; 2. A county recorder; 3. A court commissioner; 4. A notary public; 5. A justice of the peace. History: . Enacted March 21, 1872; amended April 3, 1880, Code Amdts. 1880 (C. C. pt.), p. 2; March 31, 1891, Stats, and Amdts. 1891, p. 214; by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 396, held unconstitutional, see his- tory, § 4 ante; amendment re-enacted March 21, 1905. Stats, and Amdts. 1905, p. 603; March 21, 1911, Stats, and Amdts. 1911, p. 429. § 1182. BY WHOM TAKEN WITHOUT THE STATE. The proof or acknowledgment of an instrument may be made without this state, but within the United States, and within the jurisdiction of the officer, before either: 1. A justice, judge, or clerk of any court of record of the United States; or, 2. A justice, judge, or clerk of any court of record of any state; or, 3. A commissioner appointed by the governor of this state for that purpose; or, 4. A notary public; or, 5. Any other officer of the state where the acknowledgment is made authorized by its law to take such proof or acknowl- edgment. History: Enacted March 21, 1872. 489 §§1183-1185 CIVIL CODE. [Div.II,Pt.IV. § 1183. BY WHOM TAKEN WITHOUT THE UNITED STATES. The proof or acknowledgment of an instrument may be made without the United States, before either: 1. A minister, commissioner, or charge d'affaires of the United States, resident and accredited in the country where the proof or acknowledgment is made; or, 2. A consul, vice-consul, or consular agent of the United States, resident in the country where the proof or acknowl- edgment is made; or, 3. A judge of a court of record of the country where the proof or acknowledgment is made; or, 4. Commissioners appointed for such purposes by the gov- ernor of the state, pursuant to special statutes; or, 5. A notary public. History: Enacted March 21, 1S72; amended March 30, 1874, Code Amdts. 1873-4, p. 227. §1184. DEPUTY CAN TAKE ACKNOWLEDGMENT. When any of the officers mentioned in the four preceding sections arc authorized by law to appoint a deputy, the ac- knowledgment or proof may be taken by such deputy, in the name of his principal. History: Enacted March 21, 1872. §1185. REQUISITES FOR ACKNOWLEDGMENTS. Tlie acknowledgment of an instrument must not be taken, unless the oflicer taking it knows or has satisfactory evi- dence, on tiie oath or affirmation of a credible witness, that the person making sucli acknowledgment is the individual who is described in and who executed the instrument; or, if executed by a corporation, that the person making such acknowledgment is the president or secretary of such cor- poration, or other person who executed it on its behalf. 490 Tit.IV.ch.IV.art.III.] married WOMAN. §§1186-1189 History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 39fi, held unconstitutional, see history, § 4 ante; amendment re-enai'ted March 21, 1905, Stats, and Amdts. 1905, p. 603. §1186. ACKNOWLEDGMENT BY MARRIED WO- MEN [repealed]. History: Enacted March 21^ 1872; repealed March 19, 1891, Stats, and Amdts. 1891, p. 137. §1187. CONVEYANCE BY MARRIED WOMAN. AC- KNOWLEDGMENT. A conveyance by a married woman has the same effect as if she were unmarried, and may l)e acknowledged in the same manner. History: Enacted March 21, 1872; amended March 19, 1891, Stats, and Amdts. 1891, p. 137. § 1188. [SAME.] CERTIFICATE. An officer taking the acknowledgment of an in.strumcnt mtist indorse thereon or attach thereto a certificate substantially in the forms here- inafter prescribed. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 227. §1189. GENERAL FORM OF CERTIFICATE. [OUT- SIDE OF STATE.] The certificate of acknowledgment, un- less it is otherwise in this article provided, must be substan- tially in the following form: "State of County of , ss. On this day of in the year before me (here insert name and ciuality of the officer), per- sonally appeared known to me (or proved to me on the oath of ) to be the person whose name is sub- scribed to the within instrument, and acknowledged that he (she or they) executed the same." [Outside of state — Certificate of clerk of court.] Pro- vided, however, that any acknowledgment taken without this 491 §1190 CIVIL CODE. [Div.II,Pt.IV. state in accordance with the laws of the place where the ac- knowledgment is made, shall be sufficient in this state; and provided further, that the certificate of the clerk of a court of record of the county or district where such acknowledg- ment is taken, that the officer certifying to the same is au- thorized by law so to do, and that the signature of the said officer to such certificate is his true and genuine signature, and that such acknowledgment is taken in accordance with the laws of the place where the same is made, shall be prima facie evidence of the facts stated in the certificate of £aid clerk. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1S73-4, p. 37; February 26, 1S97, Stats, and Amdts. 1897. p. 43; amended by Code Commission, Act March 16, 1901,* Stats, and Amdts. 1S00"-1, p. 397, held unconstitutional, see his- tory, § 4 ante. §1190. FORM OF ACKNOWLEDGMENT BY COR- PORATION. The certificate of acknowledgment of an in- strument executed by a corporation must be substantially in the following form: "State of I \ ss. "County of ^ "On this day of in the year before me (here insert the name and quality of the officer), per- sonally appeared , known to me (or proved to me on the oath of ) to be the president (or the secretary) of the corporation that executed the within instrument (where, however, the instrument is executed in behalf of the corporation by some one other than the president or secre- tary) insert: known to me (or proved to me on the oath of ) to be the person who executed the within instrument on behalf of the corporation therein named, and acknowl- edged to me that such corporation executed the same." History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1900, Stats, and Amdts. 1900-1, p. 397, held unconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 603. 492 Tit.IV,ch.IV,art.III.] FORM OF CERTIFICATE. §§1191-1193 § 1191. FORM OF CERTIFICATE OF ACKNOWL- EDGMENT BY MARRIED WOMAN [repealed]. History: Enacted March 21, 1872; repealed March 19, 1S91, Stats, and Amdts. 1891, p. 137. § 1192. FORM OF CERTIFICATE OF ACKNOWL- EDGMENT BY ATTORNEY IN FACT. Tlie certificate of acknowledgment by an attorney in fact must be substantially in the following form: "State of "County of "On this .... day of , in the year , before me (here insert the name and quality of the officer) per- sonally appeared , known to me (or proved to me on the oath of ) to be the person whose name is sub- scribed to the within instrument as the attorney in fact of , and acknowledged to me that he subscribed the name of thereto as principal, and his own name as attorney in fact." History: Enacted March 21, 1872. §1193. OFFICERS MUST AFFIX THEIR SIGNA- TURES. Officers taking and certifying acknowledgments or proof of instruments for record, must authenticate their certificates by affixing thereto their signatures, followed by the names of their offices; also, their seals of office, if by the laws of the state or country where the acknowledgment or proof is taken, or by authority of which the}' are acting, they are re-: Enacted March 21, 1872. § 1202. INSTRUMENT IMPROPERLY CERTIFIED, HOW CORRECTED. When the acknowledgment or proof of the execution of an instrument is properly made, but de- fectively certified, any party interested may have an action 496 Tit.IV,ch.IV,art.III.] JUDGMENT proving. §§1203-1205 in the superior court to obtain a judgment correcting the certificate. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 397, held unconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 604. §1203. JUDGMENT PROVING INSTRUMENT. Any person interested under an instrument entitled to be proved for record, may institute an action in the superior court against the proper parties to obtain a judgment proving such instrument. 'History.: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1. p. 398, held unconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 604. § 1204. EFFECT OF JUDGMENT IN SUCH ACTION. A certified copy of the judgment in a proceeding instituted under either of the two preceding sections, showing the proof of the instrument, and attached thereto, entitles such instru- ment to record, with like effect as if acknowledged. History: Enacted March 21, 1872. § 1205. CONVEYANCE HERETOFORE MADE TO BE GOVERNED BY THEN EXISTING LAWS. The le- gality of the execution, acknowledgment, proof, form, or record of any conveyance or other instrument made before this code goes into effect, executed, acknowledged, proved, or recorded is not affected by anything contained in this chapter, but depends for its validity and legality upon the laws in force when the act was performed. History: Enacted March 21, 1872. 497 §§1206,1207 CIVIL CODE. Div.II,Pt.IV. § 1206. RECORDING, AND AS EVIDENCE, TO BE GOVERNED BY THEN EXISTING LAWS. All convey- ances of real property made before this code goes into effect, and acknowledged or proved according to the laws in force at the time of such making and acknowledgment or proof, have the same force as evidence, and may be recorded in the same manner and with the like effect, as conveyances executed and acknowledged in pursuance of this chapter. History: Enacted March 21, 1S72. § 1207. VALIDATING DEFECTIVELY EXECUTED INSTRUMENTS. RECORD IMPARTS NOTICE. CER- TIFIED COPIES. Any instrument afifecting the title to real property, including any instrument executed by a mar- ried woman on or after the first day of July, 1891, which was, previous to the first day of January, one thousand nine hundred and fifteen, copied into the proper book of record, kept in the office of any county recorder, imparts, after that date, notice of its contents to subsequent purchasers and en- cumbrancers, notwithstanding any defect, omission, or in- formality in the execution of the instrument, or in the cer- tificate of acknowledgment thereof, or the absence of any- such certificate; but nothing herein affects the rights of pur- chasers or encumbrancers previous to the taking effect of this act. Duly certified copies of the record of any such in- strument may be read in evidence with like eflfect as copies of an instrument duly acknowledged and recorded; provided, when such copying in the proper book of record occurred within fifteen years prior to the trial of the action, it is shown first that the original instrument was genuine. History: Enacted March 31, 1S74, Code Amdts. 1873-4, p. 22S. amended March 4, 1897, Stats, and Amdt.s. 1897, p. 641; by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 398, Act lield unconstitutional, see liistory, § 4 ante; amended re- enacted March 9, 1903, Stats, and Amdts. 1903, p. 108; amended February 22, 1909, Stats, and Amdts. 1909, p. 45; April 22, 1913, Stats, and Amdts. 1913, p. 75; June 5, 1915. Stats, and Amdts. 1915, p. 1211. In effect August 8, 1915. 498 Tit.IV,ch.IV,art.IV.] filing for record. § 1213 ARTICLE IV. EFFECT OF RECORDING, OR THE WANT THEREOF. [Coiniiii.sMiuiiers' Note.- — "The provisions of the various stat- utes concerning conveyances, wliicli r'elate to the effect as evi- dence of instruments acknowledged or recorded, have been placed and may be found in the fourth part of the Code of Civil Procedure."] § 1213. Conveyance filed w^ith recorder is constructive notice, etc. § 1214. Conveyances to be recorded, or are void, etc. § 1215. Conveyance defined. § 1216. Powers of attorney, how revoked. § 1217. Unrecorded instrument valid between the parties. S 121X. Recording certified copies of recorded instruments. § 1213. CONVEYANCE FILED WITH RECORDER IS CONSTRUCTIVE NOTICE, ETC. Every conveyance of real property acknowledged or proved and certified and re- corded as prescribed by law from the time it is filed with the recorder for record is constructive notice of the contents thereof to subsequent purchasers and mortgagees; and a certified copy of any such recorded conveyance maj' be re- corded in any other county and when so recorded the record thereof shall have the same force and efifect as though it was of the original conveyance and where such original convey- ance has been recorded in any county wherein the property therein mentioned is not situated a certified copy of such recorded conveyance may be recorded in the county where such property is situated with the same force and effect as if the original conveyance had been recorded in such county. HLstory: Enacted March 21, 1S72; amended March 3, 1897, Stats, and Amdts. 1897, p. .'i9; Marcli 10. 1909, Stats, and Amdts. 1909, p. 278. 499 §§1214-1217 CIVIL CODE. [Div.II,Pt.IV. § 1214. CONVEYANCES TO BE RECORDED, OR ARE VOID, ETC. Every convc3'ance 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 thereof, in good faith and for a val- uable consideration, whose conveyance is first duly recorded, and as against any judgment affecting the title, unless such conveyance shall have been duly recorded prior to the rec- ord of notice of action. Historj-: Enacted March 21, 1ST2; amended March 12, 1S95, Stats, and Amdts. 1895, p. 50. § 1215. CONVEYANCE DEFINED. The term "convey- ance," as used in sections twelve hundred and thirteen and twelve hundred and fourteen, embraces every instrument in writing by which any estate or interest in real property is created, aliened, mortgaged, or encumbered, or by which the title to any real property may be affected, except wills. History: Enacted March 21, 1S72. § 1216. POWERS OF ATTORNEY, HOW REVOKED. No instrument containing a power to convey or execute in- struments affecting real property, which has been recorded, is revoked b}^ any act of the party by whom it was executed, unless the instrument containing such revocation is also ac- knowledged or proved, certified and recorded, in the same office in which the instrument containing the power was re- corded. History: Enacted March 21, 1S72. § 1217. UNRECORDED INSTRUMENT VALID BE- TWEEN THE PARTIES. An unrecorded instrument is valid as between the parties thereto and those who have no- tice thereof. History: Enacted March 21, 1872. 500 Tit.I V,ch. I V.art.V.] CERTIFIED COPIES. §§1218-1228 § 1218. RECORDING CERTIFIED COPIES OF RE- CORDED INSTRUMENTS. A certified copy of an instru- ment affecting the title to real property, once recorded, or a certified copy of the record of such instrument may be re- corded in any other county, and, when so recorded, the rec- ord thereof has the same force and effect as though it was of the original instrument. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 604; amended May 30, 1913, Stats, and Amdts. 1913, p. 335. In effect August 10, 1913. CHAPTER V. UNLAWFUL TRANSFERS. § 1227. Certain instruments void against purchasers, etc. § 1228. Not void against purcliaser having notice, unless fraud is mutual. § 1229. Power to revoke, when deemed executed. § 1230. Same. [Deemed executed wlien entitled to execute.] § 1231. Other provisions. § 1227. CERTAIN INSTRUMENTS VOID AGAINST PURCHASERS, ETC. Every instrument, other than a will, affecting an estate in real property, including every chaige upon real property, or upon its rents or profits, made with intent to defraud prior or subsequent purchasers thereof, or encumbrancers thereon, is void as against every purchaser or encumbrancer, for value, of the same property, or the rents or profits thereof. History: Enacted March 21, 1872. § 1228. NOT VOID AGAINST PURCHASER HAVING NOTICE, UNLESS FRAUD IS MUTUAL. Xo instrument is to be avoided under the last section, in favor of a sub- 501 §§1229-1231 CIVIL CODE. rOiv.II.Pt.IV. sequent purchaser or encumbrancer having notice thereof at the time his purchase was made, or his lien acquired, unless the person in whose favor the instrument was made was privy to the fraud intended. History: Enacted March 21, 1872, founded upon § 2, Act April 19, 1850, Stats. 1850, p. 266. § 1229. POWER TO REVOKE, WHEN DEEMED EX- ECUTED. Where a power to revoke or modify an instru- ment affecting the title to, or the enjoyment of, an estate in real property, is reserved to the grantor, or given to any other person, a subsequent grant of, or charge upon, the estate, by the person having the power of revocation, in fa- vor of a purchaser or encumbrancer for value, operates as a revocation of the original instrument, to the extent of the power, in favor of such purchaser or encumbrancer. History: Enacted March 21, 1872, founded upon § 4 Act April 19, 1850, Stats. 1850, p. 266. § 1230. SAME. [DEEMED EXECUTED WHEN EN- TITLED TO EXECUTE.] Where a person having a pow- er of revocation, within the provisions of the last section, is not entitled to execute it until after the time at which he makes such a grant or charge as is described in tliat sec- tion, the power is deemed to be executed as soon as he is entitled to execute it. History: Enacted March 21, 1872, founded upon § 6, Act April 19, 1850, Stats. 1850, p. 267. §1231. OTHER PROVISIONS. Other provisions con- cerning unlawful transfers are contained in part two, division fourth, of this code, concerning the special relations of debtor and creditor. History: Elnacted March 21, 1872. 502 Tit.V,ch.I.] HOMESTEAD— AVHAT IS. § 123'/ TITLE V. HOMESTEADS. Chapter I. General Provisions, §§ 1237-1261. II. Homestead of the Head of a Family. §§ 1262- 1265. III. Homestead of Other Persons, §§ 1266-1269c. CHAPTER I. GENERAL PROVISIONS. § 1237. Homestead, of what it consists. § 1238. From what may be selected. § 1239. From what not. § 1240. Exempt from forced sale. § 1241. Sale on execution, when. § 1242. How conveyed or encumbered. § 1243. How abandoned. § 1244. Same. [Effectual from when.] § 1245. Proceedings on execution against homestead. § 1246. Same. [Application, how made.] §1247. Same. [Petition, where filed,] § 1248. Same. [Notice of hearing, service.] § 1249. Same. [Appointing appraisers.] § 1250. Same. [Appraisers to be sworn.] § 1251. Same. [Determining value and divisibility.] § 1252. Same. [Report of appraisers, contents.] § 1253. Same. [Setting off homestead exemption.] § 1254. Same. [Order directing sale, when.] § 1255. Same. [What bid may be received.] § 1256. Same. [Application of proceeds of sale.] § 1257. After sale, money equal to homestead exemption pri tected. § 1258. Compensation of appraisers. § 1259. Costs. [How paid and collected.] § 1260. Who may select homestead, value of. § 1261. Head , of a family defined. 503 §1237 CIVIL CODE. [Div.II,Pt.IV. §1237. HOMESTEAD, OF WHAT IT CONSISTS. The homestead consists of the dwelling-house in which the claimant resides, and the land on which the same is situated, selected as in this title provided. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 228; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 398, held unconsti- tutional, see history, § 4 ante. § 1238. FROM WHAT MAY BE SELECTED. If the claimant be married, the homestead may be selected from the community property, 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 thou- sand two hundred and sixty-one, the homestead may be se- lected from any of his or her property. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 229. § 1239. FROM WHAT NOT. The homestead cannot be selected from the separate property of the wife, without her consent, shown by her making or joining in making the dec- laration of homestead. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 229. § 1240. EXEMPT FROM FORCED SALE. The home- stead is exempt from execution or forced sale, except as m this title provided. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 399, held unconstitutional, see history, § 4 ante. 504 Tit.V.ch.I.] SALE ON EXECUTION, ETC. §§ 1241-1243 §1241. SALE ON EXECUTION, WHEN, Tlie home- stead is subject to execution or forced sale in satisfaction of judgments obtained: 1. Before the declaration of homestead was filed for rec- ord, and which constitute liens upon the premises. 2. On debts secured by mechanics, contractors, subcon- tractors, artisans, architects, builders, laborers of every class, materialmen's or vendors' liens upon the premises. 3. On debts secured by mortgages on the premises, exe- cuted and acknowledged by husband and wife, or by an un- married claimant. 4. On debts secured by mortgages on the premises, exe- cuted and recorded before the declaration of homestead was filed for record. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 229; April 6, 1880, Code Amdts. 1880 (C. C. pt.), p. 7; March 9, 1887, Stats, and Amdts. 1887. p. 81. In force March 9. 1887. § 1242. HOW CONVEYED OR ENCUMBERED. The homestead of a married person cannot be conveyed or en- cumbered unless the instrument by which it is conveyed or encumbered is executed and acknowledged by both husband and wife. History: Enacted March 21, 1872. § 1243. HOW ABANDONED. A homestead can be abandoned only by a declaration of abandonment, or a grant thereof, executed and acknowledged: 1. By the husband and wife, if the claimant is married; 2. By the claimant, if unmarried. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 399, held unconstitutional, see history, § 4 ante. 505 §§1244-1246 CIVIL CODE. | Div.II,Pt.IV. § 1244. SAME. [EFFECTUAL FROM WHEN.] A declaration of abandonment is effectual only from the time it is filed in the office in which the homestead was recorded. History: Enacted March 21, 1872. § 1245. PROCEEDINGS ON EXECUTION AGAINST HOMESTEAD. When an execution for the enforcement of a judgment obtained in a case not within the classes enumerated in section one thousand two hundred and forty- one is levied upon the homestead, the judgment creditor may at any time within sixty days thereafter apply to the su- perior court of the county in which the homestead is sit- uated for the appointment of persons to appraise the value thereof, and if such application shall not be made within sixty days after the levy of such execution the lien of the execution shall cease at the expiration of said period, and no execution based upon the same judgment shall thereafter be levied upon the homestead. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 228; by Code Commission, Act Marcli 16, 1901, Stats, and Amdts. 1900-1, p. 398, held unconstitutional, see Kerr's Cyc. C. C. § 4; April 12, 1911, Stats, and Amdts. 1911, p. 888. § 1246. SAME. [APPLICATION, HOW MADE.] The application must be made upon a verified petition of the judgment creditor showing: 1. The fact that an execution has been levied upon the homestead within sixty days prior to the filing of said pe- tition. 2. A description of the homestead and the name of the claimant. 3. That the value of the homestead exceeds the amount of the homestead exemption. 506 Tit.V.ch.I.] PETITION TO SELL — NOTICE, ETC. §§ 1247-1249 4. That no previous execution arising out of the same judgment has been levied upon said homestead. History: Enacted March 21, 1872; amended April 12, 1911, Stats, and Amdts. 1911, p. SS'S. § 1247. SAME. [PETITION, WHERE FILED.] The petition must be filed with the clerk of the superior court. History: Enacted March 21, 1S72; amended April 6, 1880, Code Amdts. 1880 (C. C. pt.), p. 8; amended by Code Commission. Act March 16, 1901, Stats, and Amdts. 1900-1, p. 399, held un- constitutional, see history, § 4 ante. § 1248. SAME. [NOTICE OF HEARING, SERVICE.] Within ninety days from the date of filing the petitiou, a copy thereof, with the notice of the time and place of hearing, must be served upon the claimant or his attorneys at least two days before the hearing; and if such notice shall not be so served, the lien of the execution sliall cease at the ex- piration of said period of ninety days, and no execution based upon the same judgment shall thereafter be levied upon the homestead. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 399, held unconstitutional, see Kerr's Cyc. C. C. § 4; amended April 12 ,1911, Stats, and Amdts. 1911, p. 889. § 1249. SAME. [APPOINTING APPRAISERS.] .M the hearing the judge may, upon proof of the service of a copy of the petition and notice, and of the facts stated in the petition, appoint three disinterested residents of the county to appraise the value of the homestead. Hi-story: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 400, held unconstitutional, see history, § 4 ante. 507 §§1250-1254 CIVIL CODE. [Div.II,Pt.IV. § 1250. SAME. [APPRAISERS TO BE SWORN.] The persons appointed, before entering upon the performance of their duties, must take an oath to faithfully perform the same. History: Enacted March 21, 1S72. § 1251. SAME. [DETERMINING VALUE AND DI- VISIBILITY.] They must view the premises and appraise the value thereof, and if the appraised value exceeds the homestead exemption they must determine whether the land claimed can be divided without material injur}'. History: Enacted March 21, 1872. § 1252. SAME. [REPORT OF APPRAISERS, CON- TENTSJ Within fifteen days after their appointment they must make to the judge a report in writing, which report must show the appraised value and their determination upon the matter of a division of the land claimed. History: Enacted March 21. 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 400, held unconstitutional, see liistory, § 4 ante. § 1253. SAME. [SETTING OFF HOMESTEAD EX- EMPTION.] If, from the report, it appears to the judge that the land claimed can be divided without material in- jury, he must, by an order, direct tlie appraisers to set off to the claimant so much of the land, including the residence, as will amount in value to the homestead exemption, and the execution may be enforced against the remainder of the land. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 400, held unconstitutional, see history, § 4 ante. § 1254. SAME. [ORDER DIRECTING SALE, WHEN.] If, from the report, it appears to the judge that the land claimed exceeds in value the amount of the homestead ex- 508 Tit.V,ch.I.] APPLICATION OF PROCEEDS. §§ 12S5-125S emption, and that it cannot be divided, he must make an order directing its sale under the execution. History: Enacted March 21, 1872; amended by Code Com- mi.ssion, Act March 16, 1901, Stats, and Amdts. 1900-1. p. 400, held unconstitutional, see history, § 4 ante. § 1255. SAME. [WHAT BID MAY BE RECEIVED.] At such sale no bid must be received, unless it exceeds the amount of the homestead exemption. Hi.story: Enacted March 21, 1872. § 1256. SAME. [APPLICATION OF PROCEEDS OF SALE.] If the sale is made, the proceeds thereof, to the amount of the homestead exemption, must be paid to the claimant, and the balance applied to the satisfaction of the execution. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 400, held unconstitutional, see nistory, § 4 ante. §1257. AFTER SALE, MONEY EQUAL TO HOME- STEAD EXEMPTION PROTECTED. The money paid to the claimant is entitled, for the period of six months there- after, to the same protection against legal process and the voluntary disposition of the husband, which the law gives to the homestead. History: Enacted March 21, 1872; amended March 30, 1S74, Code Amdts., 1873-4, p. 230. § 1258. COMPENSATION OF APPRAISERS. The court must fix the compensation of the appraisers; not to exceed five dollars per day each for the time actually en- gaged. History: Enacted March 21, 1872. 509 §§1259-1261 CIVIL CODE. [Div.II.Pt.IV. § 1259. COSTS. [HOW PAID AND COLLECTED.] The execution creditor must pay the costs of these proceed- ings in the first instance; but in the cases provided for in sections twelve hundred and fifty-three and twelve hundred and fifty-four the amount so paid must be added as costs on execution, and collected accordingly. History: Enacted March 21, 1S72. § 1260. WHO MAY SELECT HOMESTEAD, VALUE OF. Homestead may be selected and claimed: 1. Of not exceeding five thousand dollars in value by any head of a family; 2. Of not exceeding one thousand dollars in value by any other person. History: Enacted March 21, 1S72. § 1261. HEAD OF A FAMILY DEFINED. The phrase "head of a family," as used in this title, includes within its meaning: 1. The husband, when the claimant is a married person. 2. Every person who has residing on the premises with him ,T her, and vmder his or her care and maintenance, either: (1) His or her minor child, or minor grandchild, or the minor child of his or her deceased wife or husband; (2) a minor . brother or sister, or the niinor child of a deceased brother or sister. .3. A father, mother, grandfather, or grandmother. 4. The father, mother, grandfather, or grandmother of a deceased husband or wife. 5. An unmarried sister, or any other of the relatives men- tioned in this section, who have attained the age of majority, and are unable to take care of or support themselves. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 230; March 9, 1893, Stats, and Amdts. 1893, pp. 123, 124. In force March 9, 1893. 510 TitA'.ch.I [.] SELECTION — DECLARATION OF. §§1262,1263 CHAPTER II. HOMESTEAD OF THE HEAD OF A FAMILY. § 1262. Mode of selection. §1263. Declaration of liomestead. [Must contain what.l § 1264. Declaration mu.st be recorded. § 1265. Tenure by which homestead is lield. § 1262. MODE OF SELECTION. In order to select a homestead, tlic husband or other head of a family, or in case the husband has not made such selection, the wife, must execute and acknowledge, in the same manner as a grant of real property is acknowledged, a declaration of homestead, and file the same for record. HLstory: Enacted March 21, 1S72; amended March 30, 1874, Code Amdts. 1873-4, p. 230. § 1263. DECLARATION OF HOMESTEAD. [MUST CONTAIN WHAT.] The declaration of homestead must contain: 1. A statement, showing that the person making it is the head of a family, and, if the claimant is married, the name of the spouse; or, when the declaration is made by the wife, showing that her husband has not made such declaration, and that she therefore makes the declaration for their joint benefit; 2. A statement that the person making it is residing on the premises, and claims them as a homestead; 3. A description of the premises; 4. An estimate of their actual cash value. History: Enacted Marcli 21, 1872; amended March 30. 1874. Code Amdts. 1873-4, p. 231; amended by Code Commission. Act March 16, 1901, Stats, and Amdts. 1900-1, p. 400, held unconsti- tutional, see history, §4 ante;'amendnient re-enacted Marcli 21, 1905, Stats, and Amdts. 1905, p. 400. 511 §§1264,1265 CIVIL CODE. [Div.lI.Pt.IV. § 1264. DECLARATION MUST BE RECORDED. The declaration must be recorded in the office of the recorder of the county in which the land is situated. History: Enacted March 21, 1872. § 1265. TENURE BY WHICH HOMESTEAD IS HELD. From and after the time the declaration is filed for record; the premises therein described constitute a home- stead. If the selection was made by a married person from the community property, or from the separate property ol the spouse making the selection or joining therein, the land so selected, on the death of either of the spouses, vests in the survivor, subject to no other liability than such as exists or has been created under the provisions of this title; in other cases, upon the death of the person whose property' was selected as a homestead, it shall go to the heirs or de- visees, subject to the power of the superior court to assign the same for a limited period to the family of the decedent; but in no case shall it, or the products, rents, issues or profits thereof be held liable for the debts of the owner, except as provided in this title; and should the homestead be sold by the owner, the proceeds arising from such sale to the ex- tent of the value allowed for a homestead exemption as pro- vided in this title shall be exempt to the owner of the home- stead for a period of six months next following such sale. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 231; April 6, 1880, Code Amdts. 1880 (C. C. pt.), p. 8; April 16, 1909, Stats, and Amdts. 1909, p. 972; February 15, 1911, Stats, and Amdts. 1911, p. 61. 512 Tit.V.ch.III.] OTHER HOMESTEADS. §§1266-1269 CHAPTER III. HOMESTEAD OF OTHER PERSONS. § 1266. Mode of selection. § 1267. Declaration of homestead. § 1268. Declaration must be recorded. § 1269. Effect of filing for record the declaration of homestead. § 1266. MODE OF SELECTION. Any person other than the head of a family, in the selection of a homestead, must execute and acknowledge, in the same manner as a ^rant of real property is acknowledged, a "declaration of homestead." History: Enacted March 21, 1872; amended bj- Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 400, held unconstitutional, see history, § 4 ante. ^ 1267. DECLARATION OF HOMESTEAD. The dec- laration must contain everything required by the second, third, and fourth subdivisions of section twelve hundred and sixty-three. History: Enacted March 21, 1872. § 1268. DECLARATION MUST BE RECORDED. The declaration must be recorded in the office of the county re- corder of the county in which the land is situated. History-: Enacted March 21, 1872. § 1269. EFFECT OF FILING FOR RECORD THE DECLARATION OF HOMESTEAD. Frt.m and alter ihe time the declaration is filed for record, the land described therein is a homestead. History: Enacted March 21, 1872. 17 513 1269a CIVIL CODE. [Div.II.Pt.IV. CHAPTER IV. ALIENATION OF HOMESTEADS OF INSANE PERSONS. § 1269a. Petition for sale or mortgage of homestead where hus- band or wife insane. § 1269b. Notice of application for order. § 1296c. When order may be made and effect of order. § 1269a. PETITION FOR SALE OR MORTGAGE OF HOMESTEAD WHERE HUSBAND OR WIFE IN- SANE. In case of a homestead, if either the husband or wife becomes hopelessly insane, the husband or wife not in- sane may petition the superior court of the county in which such homestead is situated for an order permitting the hus- band or wife, not insane, to sell and convey, or mortgage, such homestead to raise moneys to satisfy a lien or charge thereon, or to provide for the support and care either of the sane or insane spouse, or of their minor children. Such pe- tition must be subscribed and sworn to by the applicant, set- ting forth the name and age of the insane httsband or wife; the number, age, and sex of the children, if any, of such in- sane husband or wife; a description of the premises consti- tuting the homestead; the value of the same; the county in which it is situated; and such facts, in addition to that of the insanity of the husband or wife, relating to the circum- stances and necessities of the applicant and his or her fam- ily, as he or she may rely upon in support of the petition. History: Enacted March 22, 1905, Stats, and Amdts. 1905, p. 725. A codification of §§ 1 and 3, Act March 25. 1ST4, Stats. 1S73-4, pp. 5S2, 583. 514 Tit.V,ch.lV.] ALIENATION— NOTICE. §§ 1269b, 1269c § 1269b. NOTICE OF APPLICATION FOR ORDER. Notice of the application for such order must be given by publication of the same, in a newspaper published in the county in which such homestead is situated, if there is a newspaper published therein, once each week for three succes- sive weeks, prior to the hearing of such application, and a copy of such notice must also be personally served upon the nearest male relative of such insane liusband or wife, resi- dent in this state, at least three weeks prior to such appli- cation; and in case there is no such male relative known to the applicant, a copy of such notice must be so served upon the public administrator of the county in which such home- stead is situated; and in such case it is the duty of such pub- lic administrator to appear and represent the interests of such insane person. For all such services rendered by the public administrator he must be allowed a reasonable fee, to be .fixed by the court, and the same must be taxed as costs against the person making application for the order herein, provided for. Historj-: Enacted March 22, 1905, Stats, and Amdts. 1905, p. 726. A codification of § 2, Act March 25, 1874, Stats. 1S73-4, pp. 582. 583. § 1269c. WHEN ORDER MAY BE MADE AND EF- FECT OF ORDER. If it appears to the court that such husband or wife is hopelessly insane, the court may make an order permitting the husband or wife, not insane, to sell and convey, or mortgage, such homestead, and thereafter any sale, conveyance, or mortgage made in pursuance of such or- der is as valid and effectual as if the property affected there- by was the absolute property of the person making such sale, conveyance, or mortgage. If a sale is ordered it must be reported to and confirmed by the court. Such husband or wife must, before executing any mortgage or conveyance, 515 § 1269c CIVIL CODE. [Div.II,Pt.IV. give a bond, to be approved by the judge of the court, in double the amount of the mortgage, or double the value of the property to be sold, conditioned to account for the pro- ceeds of the mortgage or sale and to apply such proceeds only as the court may direct. History: Enacted March 22, 1905, Stats, and Amdts. 1905, p. 726. A codification of § 4, Act March 25, 1874, Stats. 1873-4, p. 583. 516 Tit. VI, ch. I.] WII.LS— EXECUTION, ETC. § 1270 TITLE VI. WILLS. Chapter I. Execution and Revocation of Wills, §§ 1270-1313. II. Interpretation of Wills, §§1317-1351. III. General Provisions Relating to Wills, §§ 1357- 1377. CHAPTER I. EXECUTION AND REVOCATION OF WILLS. § 12 § 12 § 12 § 12 § 12 § 12 § 12 0. Who may make a will. 1. Monomaniac incompetent [repealed]. 2. Will, or part thereof, procured by fraud. 3. Will of married woman. 4. What may pass by will. 5. Who may take by will. 6. Written will, how t6 be executed. § 1277. Definition of an [h]olographic will. § 1278. Witness to add residence. § 1279. Mutual will. § 1280. Competency of subscribing: witness. § 1281. Conditional will. § 1282. Gifts to subscribing witness void. Creditors competent witnesses. § 1283. Witness who is a devisee entitled to share to amount of devise, when. § 1284. Will made out of this state [repealed]. § 1285. Will made out of state not valid, unless. § 1286. Subsequent change of domicile [repealed]. § 1287. Republication by codicil. § 1288. Nuncupative will, how to be executed. § 1289. Requisites of a valid nuncupative will. § 1290. Proof of nuncupative wills. § 1291. Probate of nuncupative wills. § 1292. Written will, how revoked. 517 §§1270,1271 CIVIL CODE. [Div.II,Pt.IV. § 1293. Evidence of revocation. § 1294. Revocation by obliteration on face of will [repealed]. § 1295. Revocation of duplicate. § 1296. Revocation by subsequent will. § 1297. Antecedent not revived by revocation of subsequent will. § 129S. Revocation by marriage and birth of issue. § 1299. Effect of marriage of a man on his will. § 1300. Effect of a marriage of a woman on her will. § 1301. Contract of sale not a revocation. § 1302. Mortgage not a revocation of will. § 1303. Conveyance, when not a revocation. § 1304. [Same.] When it is a revocation. § 1305. Revocation of codicils. § 1306. After-born child, unprovided for, to succeed. § 1307. Children or issue of children of testator unprovided for by his will. [To succeed.] § 130S. Share of after-born child, out of what part of estate to be paid. i § 1309. Advancement during lifetime of testator. § 1310. Death of devisee, being relation of testator, in lifetime of testator, leaving lineal descendants [they succeed!. § 1311. Devises of land, how construed. § 1312. Wills pass estate subsequently acquired. § 1313. Restriction on devise for charitable uses. § 1270. WHO MAY MAKE A WILL. Every person over the age of eighteen years, of sound mind, may, by las*: will, dispose of all his estate, real and personal, and such es- tate not disposed of by w^ill is succeeded to as provided in title seven of this part, being chargeable in both cases with the payment of all the decedent's debts, as provided in the Code of Civil Procedure. History: Enacted March 21, 1S72, founded upon § 1, Act April 10, 1850, Stats. 1850, p. 177. § 1271. MONOMANIAC INCOMPETENT [repealed.] Hi.story: Enacted March 21, 1872, repealed March 30. 1874, Code Amdts. 1873-4, p. 232. 518 Tit.VI,ch.I.] FRAUD IN PROCURING. §§ 1272-1275 § 1272. WILL, OR PART THEREOF, PROCURED BY FRAUD. A will, or part of a will, procured to be made by duress, menace, fraud, or undue influence, may be denied probate; and a revocation, procured by the same means, may be declared void. History: Enacted March 21, 1S72. § 1273. WILL OF MARRIED WOMAN. A married woman may dispose of all her separate estate by will, with- out the consent of her husband, and may alter or revoke the will in like manner as if she were single. Her will must be executed and proved in like manner as other wills. History: Enacted March 21, 1872, founded upon § 2 Act April 10, 1850, Stats. 1850, p. 177; amended March 30, 1874, Code Amdts. 1873-4, p. 232. § 1274. WHAT MAY PASS BY WILL. Every estate and interest in real or personal property, to which heirs, hus- band, widow, or next of kin might succeed, may be disposed of by will, except as otherwise provided in sections fourteen hundred and one and fourteen hundred and two. History: Enacted March 21, 1872. § 1275. WHO MAY TAKE BY WILL. A testamentary disposition may be made to any person capable by law of taking the property so disposed of, except that corporations other than counties, municipal corporations, and corpora- tions formed for scientific, literary, or solely educational or hospital purposes, cannot take under a will, jnless expressly authorized by statute; subject, however, to the provisions of section thirteen hundred and thirteen. History: Enacted March 21, 1872; amended March 29, 1874, Code Amdts. 1S73-4, p. 275; amen^ied by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 402, held unconstitu- tional, see history, § 4 ante; amendment substantially re-enacted 519 J 1276, 1277 CIVIL CODE. [Div.II.Pt.IV. March 20, 1903, Stats, and Amdts. 1903, p. 258, merely omitting the words "counties, municipal corporations," and this amend- ment of the Code Commission restored, by inserting the omitted words, March 21, 1905, Stats, and Amdts. 1905, p. 605. § 1276. WRITTEN WILL, HOW TO BE EXECUTED. Every will, other than a nuncupative will, must be in writ- ing; and every will, other than an olograpliic [holographic] will, and a nuncupative will, must be executed and attested as follows: 1. It must be subscribed at the end thereof by the testator himself, or some person in his presence and by his direction must subscribe his name thereto; 2. The subscription must be made in the presence of the attesting witnesses, or be acknowledged by the testator to them to have been made by him or by his authority; 3. The testator must, at the time of subscribing or acknowl- edging the same, declare to the attesting witnesses that the instrument is his will; and, 4. There must be two attesting witnesses, each of whom must sign the same as a witness, at the end of the will, at tlie testator's request and in his presence. History: Enacted March 21, 1872, founded upon § 3 Act April 10, 1850, Stats. 1850, p. 177; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 402, held unconstitu- tional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 19u5, p. 605. §1277. DEFINITION OF AN [H]OLOGRAPHIC WILL. An [h]olographic will is one that is entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of this state, and need not be witnessed. History: Enacted March 21, 1872. 520 Tit. VI, ch. I.] WITNESSES— MUTUAL WILLS. §§ 1278-1282 § 1278. WITNESS TO ADD RESIDENCE. A witness to a written will must write, with his name, his place of residence; and a person who subscribes the testator's name, by his direction, must write his own name as a witness to the will. But a violation of this section docs not aflFect the validity of the will. History: Enacted March L'l, 1S72. § 1279. MUTUAL WILL. A conjoint or mutual will is valid, but it may be revoked by any of the testators, in like manner with any other will. History: Enacted March 21, 1872. § 1280. COMPETENCY OF SUBSCRIBING WITNESS. If the subscribing witnesses to a will are competent at the time of attesting its execution, their subsequent incompet- ency, from whatever cause it may arise, does not prevent the probate and allowance of the will, if it is otherwise satis- factorily proved. History: Enacted March 21, 1872, founded upon § 4 Act April 10, 1850, Stats. 1850, p. 177. § 1281. CONDITIONAL WILL. A will, tlic validity of which is made by its own terms conditional, may be denied probate, according to the event, with reference to the con- dition. History: Enacted March 21, 1872. § 1282. GIFTS TO SUBSCRIBING WITNESSES VOID. CREDITOR COMPETENT WITNESS. All beneficial de- vises, legacies, and gifts whatever, made or given in any will to a subscribing witness thereto, are void, unless there are two other competent subscribing witnesses to the same; but 521 §§1283-1285 CIVIL CODE. [Div.II,Pt.IV. a mere charge on the estate of the testator for the payment of debts does not prevent his creditors from being competent witnesses to his will. History: Enacted March 21, 1872, founded upon § 5 Act April 10, 1S50, Stat.s. 1S50, p. 1T7. § 1283. WITNESS WHO IS A DEVISEE, ENTITLED TO SHARE TO AMOUNT OF DEVISE, WHEN. If a witness, to whom any beneficial devise, legacy, or gift, void by the preceding section, is made, would have been entitled to any share of the estate of the testator, in case the will should not be established, he succeeds to so much of the share as would be distributed to him, not exceeding the de- vise or bequest made to him in the will, and he may recover the same of the other devisees or legatees named in the will, in proportion to and out of the parts devised or bequeathed to them. History: Enacted March 21, 1S72, founded upon § 6 Act April 10, 1850, Stats. 1850, p. 177; amended March 30, 1874, Code Amdts. 1S73-4, p. 232. § 1284. WILL MADE OUT OF THIS STATE [re- pealed]. History: Enacted March 21, 1872, founded upon § 23 Act April 10, 1S50, Stats. 1850, p. 179; repealed March 30, 1874, Code Amdts. 1S73-4, p. 232. § 1285. WILL MADE OUT OF STATE NOT VALID, UNLESS. No will made out of this state is valid as a will in this state, unless executed according to the provisions of this chapter, except that a will made in a state or countrj' in which the testator is domiciled at the time of his death, and valid as a will under the laws of such state or country, is valid in this state so far as the same relates to personal prop- 522 Tit.VI,ch.I.] NUXCUPATiVE WILL. §§ 1286-1289 erty, subject, however, to the provisions of section thirteen hundred and thirteen. History: Enacted March 21, 1872; amended March 30, 187i, Code Amdts. 1873-4, p. 232; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 402, held uncon- stitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 190.5, p. 606. §1286. SUBSEQUENT CHANGE OF DOMICILE [re- pealed]. History: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 232. §1287. REPUBLICATION BY CODICIL. The execu- tion of a codicil, referring to a previous will, has the efTect to republish the will, as modified by the codicil. History: Enacted March 21, 1S72. § 1288. NUNCUPATIVE WILL, HOW TO BE EXE- CUTED. A nuncupative will is not required to be in writ- ing, nor to be declared or attested with any formalities. History: Enacted March 21, 1872. § 1289. REQUISITES OF A VALID NUNCUPATIVE WILL. To make a nuncupative will valid, and to entitle it to be admitted to probate, the following requisites must bo observed: 1. The estate bequeathed must not exceed in value the sum of one thousand dollars. 2. It must be proved by two witnesses who were present at the making thereof, one of whom was asked by the testa- tor, at the time, to bear witness that such was his will, or to that efifect. 3. The decedent must, at the time, have been in actual mili- tary service in the field, or doing duty on shipboard at sea, 523 §§1290-1292 CIVIL CODE. [Div.II.Pt.IV. 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 received the same day. History: Enacted March 21, 1872. founded upon § 7 Act April 10, 1S50, Stats. 1850, p. 177; amended March 30, 1874, Code Amdts. 1873-4, p. 233. § 1290. PROOF OF NUNCUPATIVE WILLS. No proof must be received of any nuncupative will, unless it is offered within six months after speaking the testamentary words, nor unless the words, or the substance thereof, were reduced to writing within thirty days after they were spoken. History: Enacted March 21, 1S72, founded upon § 8 Act April 10, 1850, Stat.s. 1850, p. 178. § 1291. PROBATE OF NUNCUPATIVE WILLS. No probate of any nuncupative will must be granted for fourteen days after the death of the testator, nor must any nuncupative will be at any time proved, unless the testamentary words, or the substance thereof, be first committed to writing, and process issued to call in the widow, or other persons inter- ested, to contest the probate of such will, if they think proper. History: Enacted March 21, 1872, founded upon § 9 Act April 10, 1850, Stats. 1850, p. 178. § 1292. WRITTEN WILL, HOW REVOKED. Except in the cases in this chapter mentioned, no written will, nor any part thereof, can be revoked or altered otherwise than: 1. By a written will, or other writing of the testator, de- claring such revocation or alteration, and executed with the same formalities with which a will should be executed by such testator; or, 524 Tit. VI, ch. I.] REVOCATION— EVIDENCE OF. §§ 1293-1297 2. By being burnt, torn, canceled, obliterated, or destroyed, with the intent and for purpose of revoking the same, by the testator himself, or by some person in his presence and by his direction. History: Enacted March 21, 1872. § 1293. EVIDENCE OF REVOCATION. When a will is canceled or destroyed by any other person than the testa- tor, the direction of the testator, and the fact of such injury or destruction, must be proved by two witnesses. Hi-story: Enacted March 21, 1872, founded upon § 10 Act April 10, 1850, Stats. 1850, p. 178. § 1294. REVOCATION BY OBLITERATION ON FACE OF WILL [repealed]. History: Enacted March 21, 1872, repealed March 30, 1874,. Code Amdts. 1873-4, p. 233. § 1295. REVOCATION OF DUPLICATE. The revoca- tion of a will, executed in duplicate, may be made by revok- ing one of the duplicates. History: Enacted March 21, 1872. § 1296. REVOCATION BY SUBSEQUENT WILL. A prior will is not revoked by a subsequent will, unless the lat- ter contains an express revocation, or provisions wholly in- consistent with the terms of the former will; but in other cases the prior will remains effectual so far as consistent with the provisions of the subsequent will. History: Enacted March 21, 1872. § 1297. ANTECEDENT NOT REVIVED BY REVOCA- TION OF SUBSEQUENT WILL. If, after making a will, the testator duly makes and executes a second will, the de- 525 §§1298-1300 CIVIL CODE. | Div.II,Pt.IV. struction, cancelation, or revocation of sucli second will does not revive the first will, unless it appears by the terms of such revocation that it was the intention to revive and give effect to the first will, or unless, after such destruction, cancelation, or revocation, the first will is duly republished. History: Enacted March 21, 1S72, founded upon § 11 Act April 10, 1S50, Stats. 1850, p. 178. • § 1298. REVOCATION BY MARRIAGE AND BIRTH OF ISSUE. If, after having made a will, the testator mar- ries, and has issue of such marriage, born either in his life- time or after his death, and the wife or issue survives him, the will is revoked, unless provision has been made for such issue by some settlement, or unless such issue are provided for in the will, or in such way mentioned therein as to show an intention not to make such provision; and no other evi- dence to rebut the presumption of such revocation can be received. History: Enacted March 21, 1872'. § 1299. EFFECT OF MARRIAGE OF A MAN ON HIS WILL. If, after making a will, the testator marries, and the wife survives the testator, the will is revoked, unless pro- vision has been made for her bj' marriage contract, or un- less she is provided for in the will, or in such way men- tioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of revocation must be received. History: Enacted March 21, 1872. founded upon § 12 Act April 10, 1850, Stats. 1850, p. 178. § 1300. EFFECT OF A MARRIAGE OF A WOMAN ON HER WILL. A will, executed by a woman, is revoked by her subsequent marriage, and is not revived by the death of her husband. 526 Tit.VI,ch.I.] REVOCATION— WHAT NOT. §§ 1301-13U4 History: Enacted March 21, 1872, founded upon § 13 Act April 10, 1.850, Stats. 1850, p. 178; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 402, held unconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 606. § 1301. CONTRACT OF SALE NOT A REVOCATION. An agreement made b)' a testator, for the sale or transfer of property disposed of by a will previously made, does not revoke such disposal; but the property passes by the will, subject to the same remedies on the testator's agreement, 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. Hlstorj-: Enacted March 21, 1872, founded upon § 14 Act April 10, 18150, Stats. 1850, p. 178. § 1302. MORTGAGE NOT A REVOCATION OF WILL. A charge or encumbrance upon any estate, for the purpose of securing the payment of money or the perform- ance of any covenant or agreement, is not a revocation of any will relating to the same estate which was previously executed; but the devise and legacies therein contained must pass, subject to such charge or encumbrance. History: Enacted March 21, 1872, founded upon § 15 Aol April 10, 1850, Stats. 1850, p. 178. § 1303. CONVEYANCE, WHEN NOT A REVOCA- TION. 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 devested, is not a revocation; but the will passes the property which would otherwise de- volve by succession. History: Enacted March 21, 1872. § 1304. [SAME.] WHEN IT IS A REVOCATION. If the instrument by which an alteration is made in the testa- 527 §§1305-1307 . CIVIL CODE. [Div.II,Pt.IV. tor's interest in a thing previously disposed of by his will expresses his intent that it shall be a revocation, or if it contains provisions wholly inconsistent with the terms and nature of the testamentary disposition, it operates as a revo- cation thereof, unless such inconsistent provisions depend on a condition or contingency by reason of which they do not take efifect. History: Enacted March 21, 1872. § 1305. REVOCATION OF CODICILS. The revocation of a will revokes all its codicils. ■ History: Enacted March 21, 1872. § 1306. AFTER-BORN CHILD, UNPROVIDED FOR, TO SUCCEED. Whenever a testator has a child born after the making of his will, either in his lifetime or after his death, and dies leaving such child unprovided for by any set- tlement, and neither provided for nor in any way mentioned in his will, the child succeeds to the same portion of the tes- tator's real and personal property that he would have suc- ceeded to if the testator had died intestate. But such suc- cession does not impair or affect the validity of any sale of property made by authority of such will in accordance with the provisions of section fifteen hundred and sixty-one of the Code of Civil Procedure. History: Enacted March 21, 1872, founded upon § 16 Act April 10, 1850, Stats. 1850, p. 178; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 402. held unconstitut^ional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 606. §1307. CHILDREN OR ISSUE OF CHILDREN OF TESTATOR UNPROVIDED FOR BY HIS WILL [TO SUCCEED]. When any testator omits to provide in his will for any of his children, or for the issue of any deceased child, unless it appears that such omission w^as intentional, such child, or the issue of such child, has the same share in 528 Tit.VI,ch.I.] AFTER-BORN CHILD, SHARE. §§ 1308, 1309 the estate of the testator as if he had died intestate, and succeeds thereto as provided in the preceding section. But such succession does not impair or affect the validity of any sale of property made by authority of such will in accordance with the provisions of section fifteen hundred and sixty-one of the Code of Civil Procedure. History: Enacted March 21, 1872, founded upon § 17 Act April 10, 1850, Stats. 1850, p. 178; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 403, held un- constitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 606. §1308. SHARE OF AFTER-BORN CHILD, OUT OF WHAT PART OF ESTATE TO BE PAID. When any share of the estate of a testator is assigned to a child born after the making of a will, or to a child, or the issue of a child, omitted in the will, as hereinbefore mentioned, the same must first be taken from the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken from all the devisees or legatees, in proportion to the value they may respectively receive under the will, unless the obvious intention of the testator in re- lation to some specific devise or bequest, or other provision in the will, would thereby be defeated; in such case, such specific devise, legacy, or provision, may be exempted from such apportionment, and a different apportionment, consist- ent with the intention of the testator, may be adopted. History: Enacted March 21, 1872, founded upon §18 Act April 10, 1850, Stats. 1850, p. 178. § 1309. ADVANCEMENT DURING LIFETIME OF TESTATOR. If such children, or their descendants, so pro- vided for, had an equal proportion of the testator's estate bestowed on them in the testator's lifetime, by way of ad- vancement, they take nothing in virtue of the provisions of the three preceding sections. History: Enacted March 21, 1872, founded upon § 19 Act April 10, 1850, Stats. 1850, p. 179. 529 §§1310-1312 CIVIL CODE. [Div.II,Pt.IV. § 1310. ON DEATH OF DEVISEE, BEING RELA- TION OF TESTATOR, IN LIFETIME OF TESTATOR, LEAVING LINEAL DESCENDANTS [THEY SUC- CEED]. When any estate is devised or bequeathed to any child, or other relation of the testator, and the devisee or legatee dies before the testator, leaving lineal descendants, such descendants take the estate so given by the will, in the same manner as the devisee or legatee would have done had he survived the testator. History: Enacted March 21, 1872, founded upon § 20 Act April 10, 1850, Stats. 1850, p. 179; amended March 18, 1905, Stats, and Amdts. 1905, p. 150. § 1311. DEVISES OF LAND, HOW CONSTRUED. Every devise of land in any will conveys all the estate ot the devisor therein, which he could lawfully devise, unless it clearly appears by the will that he intended to convey a less estate. History: Enacted March 21, 1872, founded upon § 21 Act April 10, 1850, Stats. 1850, p. 179. § 1312. WILLS PASS ESTATE SUBSEQUENTLY AC- QUIRED. Any estate, right, or interest in lands acquired by the testator after the making of his will, passes thereby and in like manner as if title thereto was vested in him at the time of making the will, unless the contrary manifestly appears by the will to have been the intention of the testator. Every will made in express terms, devising, or in any other terms denoting the intent of the testator to devise all the real estate of such testator, passes all the real estate which such testator was entitled to devise at the time of his de- cease. History: Enacted March 21, 1872, founded upon § 22 Act April 10, 1S50, Stats. 1850, p 179; amended March 30, 1S74, Code Amdts. 1873-4, p. 233. 530 Tit.VI,ch.I.] CHARITABLE BEQUESTS. § I313 § 1313. CHARITABLE, ETC., BEQUESTS. LIMITA- TION AS TO TIME AND AMOUNT. No estate, real or personal, shall be bequeathed or devised to any charitable or benevolent society or corporation, or to any person or persons" in trust for charitable uses, except the same be done by will duly executed at least thirty days before the decease' of the testator; and if so made, at least thirty days prior to such death sucli devise or legacy and eacli of them sliall be valid; provided, that no such devises or bequests shall col- lectively exceed one-third of the estate of the testator, leav- ing legal heirs, and in such case a pro rata deduction from such devises or bequests shall be made so as to reduce the aggregate thereof to one-third of such estate; and all dis- positions of property made contrary hereto shall be void, and go to the residuary legatee- or devisee, next of kin, or heirs, according to law. History: Enacted March IS, 1874, Code Amdts. 1873-4, p. *276. Ill force March 18, 1874. 531 §1317 CIVIL CODE. [Div.II,Pt.IV. CHAPTER II. INTERPRETATION OP WILLS, AND EFFECT OF VARIOUS PROVISIONS. § 1317. Testator's intention to be carried out. § 1318. Intention to be ascertained from tlie 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. ' § 1330. Power to devise, how executed by terms of will. § 1331. Devise or bequest of all real or all personal property, or both. § 1332. Residuary clause. § 1333. Same. [Bequest of residue, effect.] § 1334. "Heirs," "relatives," "issue," "descendants," etc. § 1335. Words of donation and of limitation. § 1336. To what time words refer. § 1337. Devise or bequest to a class. § 1338. When conversion takes effect. § 1339. When child born after testator's death takes under will. § 1340. Mistakes and omissions. § 1341. When devises and bequests vest. 1 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. Conditions subsequent, what. § 1350. Devisees, etc., take as tenants in common. § 1351. Advd,ncements, when ademptions. 532 Tit. VI, ch. II.] INTERPRETATION-— RULES FOR. §§1317-1322 § 1317. TESTATOR'S INTENTION TO BE CARRIED OUT. A will is to be construed according to the intention of the testator. Where his intention cannot have eflfect to its full extent, it must have effect as far as possible. Hi.story: Enacted March 21, 1S72. § 1318. INTENTION TO BE ASCERTAINED FROM THE WILL. 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 ascertained from the words of the will, taking into view the circumstances under which it was made, exclusive of his oral declarations. History: Enacted March 21, 1S72. § 1319. RULES OF INTERPRETATION. In interpret- ing a will, subject to the law of this state, the rules pre- scribed by the following sections of this chapter are to be observed, unless an intention to the contrary clearly appears. History: Enacted March 21, 1872. § 1320. SEVERAL INSTRUMENTS ARE TO BE TAK- EN TOGETHER. Several testamentary instruments, exe- cuted by the same testator, are to be taken and construed together as one instrument. Historj': Enacted March 21, 1872. § 1321. HARMONIZING VARIOUS PARTS. All the parts of a will are to be construed in relation to each other, and so as, if possible, to form one consistent whole; but where several parts are absolutely irreconcilable, the latter must^ prevail. History: Enacted March 21, 1872. § 1322. IN WHAT CASE DEVISE NOT AFFECTED. A clear and distinct devise or bequest cannot be affected by 533 §§1323-1327 CIVIL CODE. [Div.II,Pt.] V. any reasons assigned therefor, or by any other words not equally clear and distinct, or by inference or argument from other parts of the will, or by an inaccurate recital of or ref- erence to its contents in another part of the will. History: Enacted March 21, 1872. § 1323. WHEN AMBIGUOUS OR DOUBTFUL. Where the meaning of any part of a will is ambiguous or doubtful, it may be explained by any reference thereto, or recital thereof, in another part of the will. Hi.story: Enacted March 21, 1872. § 1324. WORDS TAKEN IN ORDINARY SENSE. The words of a will are to be taken in their ordinary and gram- matical sense, unless a clear intention to use them in an- other sense can be collected, and that other can be ascer- tained. History: Enacted March 21, 1872. § 1325. WORDS TO RECEIVE AN OPERATIVE CONSTRUCTION. The words of a will are to receive an interpretation which will give to every expression some ef- fect, rather than one which will render any of the expres- sions inoperative. Historj": Enacted March 21, 1872. §1326. INTESTACY TO BE AVOIDED. Of two modes of interpreting a will, that is to be preferred which will prevent a total intestacy. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p." 403, held unconstitutional, see history, § 4 ante. § 1327. EFFECT OF TECHNICAL WORDS. Technical words in a will are to be taken in their technical sense, unless 534 Tit.VI,ch.]I.] INTERPRETATION— WORDS. §§1328-1331 the context clearly indicates a contrary intention, or unless it satisfactorily appears that the will was drawn solely by the testator, and that he was unacquainted with such technical sense. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 403, held unconstitutional, see history, § 4 ante; amendment re- enacted March 21, 1905, Stats, and Amdts. 1905, p. 606. § 1328. TECHNICAL WORDS NOT NECESSARY, Technical words are not necessary to give effect to any species of disposition by a will. History: Enacted March 21, 1872. § 1329. CERTAIN WORDS NOT NECESSARY TO PASS A FEE. The term "heirs," or other words of inherit- ance, are not requisite to devise a fee, and a devise of real property passes all the estate of the testator, unless other- wise limited. History: Enacted March 21, 1872. § 1330. POWER TO DEVISE, HOW EXECUTED BY TERMS OF WILL. Real or personal property embraced in a power to devise, passes by a will purporting to devise all the real or personal property of the testator. History: Enacted March 21, 1872. § 1331. DEVISE OR BEQUEST OF ALL REAL OR ALL PERSONAL PROPERTY, OR BOTH. A devise or bequest of all the testator's real or personal property, in ex- press terms, or in any other terms denoting his intent to dis- pose of all his real or personal property, passes all the real or personal property which he was entitled to dispose of by will at the time of his death. History: Enacted March 21, 1872. 535 §§ 1332-1335 CIVIL CODE. [Div.II,Pt.IV. § 1332. RESIDUARY CLAUSES. A devise of the resi- due of the testator's real property passes all the real property which he was entitled to devise at the time of his death, not otherwise efifectually devised by his will. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1S73-4, p. 234. § 1333. SAME. [BEQUEST OF RESIDUE, EFFECT.] A bequest of the residue of the testator's personal property, passes all the personal property which he was entitled to be- queath at the time of his death, not otherwise effectually be- queathed by his will. History: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 234. § 1334. "HEIRS," "RELATIVES," "ISSUE," "DE- SCENDANTS," ETC. A testamentary disposition to '"heirs," "relations," "nearest relations," "representatives," "legal representatives," or "personal representatives," or "family," "issue," "descendants," "nearest" or "next of kin," of any person, without other words of qualification, and when the terms are used as words of donation, and not of limita- tion, vests the property in those who would be entitled to succeed to the property of such person, according to the pro- visions of the title on succession, in this code. History: Enacted March 21, 1872. § 1335. WORDS OF DONATION AND OF LIMITA- TION. The terms mentioned in the last section are used as words of donation, and not of limitation, when the property is given to the person so designated, directly, and not as a qualification of an estate given to the ancestor of such per- son. History: Enacted March 21, 1872. 536 Tit.VI,ch.II.] DEVISE TO A CLASS. §§1336-1340 § 1336. TO WHAT TIME WORDS REFER. Words in a will referring to death or survivorship, simply, relate to the time of the testator's death, unless possession is actually postponed, when they must be referred to the time of pos- session. History: Enacted March 21, 1872. § 1337. DEVISE OR BEQUEST TO A CLASS. A testa- mentary disposition to a class includes every person answer- mg the description at the testator's death; but when the possession is postponed to a future period, it includes also all persons coming within ihe description before the time to which possesion is postponed. History: Enacted March 21, 1872. § 1338. WHEN CONVERSION TAKES EFFECT. When a will directs the conversion of real property into money, such property and all its proceeds must be deemed personal property from the time of the testator's death. History: Enacted March 21, 1872. § 1339. WHEN CHILD BORN AFTER TESTATOR'S DEATH TAKES UNDER WILL. A child conceived before, but not born until after a testator's death, or any other period when a disposition to a class vests in right or in possession, takes, if answering to the description of the class. History: Enacted March 21, 1872. § 1340. MISTAKES AND OMISSIONS. When, apply- ing a will, it is found that there is an imperfect description, or that no person or property exactly answers the descrip- tion, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evi- dence; but evidence of the declarations of the testator as to his intentions cannot be received. Hi.story: Enacted March 21, 1872. 537 §§1341-1345 CIVIL CODE/ [Div.II.Pt.IV. § 1341. WHEN DEVISES AND BEQUESTS VEST. Testamentary dispositions, including devises and bequests to a person on attaining majority, are presumed to vest at the testator's death. History: Enacted March 21, 1872. § 1342. WHEN CANNOT BE DEVESTED. A testa- mentary disposition, when vested, cannot be devested unless upon the occurrence of the precise contingency prescribed by the testator for that purpose. History: Enacted March 21, 1872. § 1343. DEATH OF DEVISEE OR LEGATEE. If a devisee or legatee dies during the lifetime of the testator, the testamentary disposition to him fails^ unless an intention appears to substitute some other in his place, except as pro- vided in section thirteen hundred and ten. History: Enacted March 21, 1872; amended March 30. 1874, Code Anidts. 1873-4, p. 234; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 403, held un- constitutional, see history. § 4 ante. § 1344. INTERESTS IN REMAINDER ARE NOT AF- FECTED. The death of a devisee or legatee of a limited interest before the testator's death does not defeat the in- terests of persons in remainder, who survive the testator. Histitry: Enacted March 21, 1872. §1345. CONDITIONAL DEVISES AND BEQUESTS. A conditional disposition is one which depends upon the occurrence of some uncertain event, by which it is either to take effect or be defeated. History: Enacted March 21, 1872. 538 Tit.VI,ch.II.] CONDTTIONS— EFFECT OF. §§ 1346-1350 § 1346. CONDITION PRECEDENT, WHAT. A condi- tion precedenv in a will is one wliich is required to be ful- filled before a particular disposition takes effect. History: Enacted March 21, 1872. § 1347. EFFECT OF CONDITION PRECEDENT. Where a testamentary disposition is made upon a condition precedent, nothing vests until the condition is fulfilled, ex- cept where such fulfilment is impossible, in which case the disposition vests, unless the condition was the sole motive thereof, and the impossibility was unknown to the testator, or arose from an unavoidable event subsecpjent to the exe- cution of the will. History: Enacted March 21, 1872. § 1348. CONDITIONS PRECEDENT, WHEN DEEM- ED PERFORMED. A condition precedent in a will is to be deemed performed when the testator's intention has been su1)stantially, though not literally, complied with. History: Enacted March 21, 1872. § 1349. CONDITIONS SUBSEQUENT, WHAT. A con- dition subsequent is where an estate or interest is so given as to vest immediately, subject only to be devested by some subsequent act or event. History: Enacted March 21, 1872. § 1350. DEVISEES, ETC., TAKE AS TENANTS IN COMMON. A devise or legacy given to more than one per- son vests in them as owners in common. History: Enacted March 21, 1872. 539 § 1351 CIVIL CODE. [Div.II.Pt.IV. §1351. ADVANCEMENTS, WHEN ADEMPTIONS. Advancements or gifts are not to be taken as ademptions of general legacies, unless such intention is expressed by the testator in writing. History: Enacted March 21, 1S72. 540 Tit. VI, ch. III.] DESIGNATION OF LEGACIES. § I357 CHAPTER III. GENERAL PROVISIONS. § 1357. Nature and designations of legacies. § 1358. Estates cliargeable. § 1359. Order of resort to estate for debts. §1360. Same. [For legacies.] § 1361. Same. [Legacies to kindred.] § 1362. Abatement. § 1363. Specific devises and legacies. § 1364. Heir's conveyance good, unless will is proved within four years. § 1365. Possession of legatees. § 1366. Bequest of interest. § 1367. Satisfaction. § 1368. Legacies, when due. § 1369. Interest. § 1370. Construction of these rules. § 1371. Executor according to the tenor. § 1372. Power to appoint is invalid. § 1373. Executor not to act till qualified. § 1374. Provisions as to revocations. § 1375. Execution and construction of prior wills not affected. § 1376. Law governing validity and interpretation of wills. § 1377. Liability of beneficiaries for testator's obligations. § 1357. NATURE AND DESIGNATION OF LEGA- CIES. Legacies are distinguished and designated, accord- ing to their nature, as follows: 1. [Specific legacy.] A legacy of a particular thing, speci- fied and distinguished from all others of the same kind be- longing to the testator, is specific; if such legacy fails, resort cannot be had to the other property of the testator; 2. [Demonstrative legacy.] A legacy is demonstrative when the particular fund or personal property is pointed out from which it is to be taken or paid; if such fund or prop- erty fails, in whole or in part, resort may be had to the gen- eral assets, as in case of a general legacy; 541 §§1358,1359 CIVIL CODE. [Div.II.Pt.IV. 3. [Annuities.] An annuity is a bequest of certain speci- fied sums periodically; if the fund or property out of which they are payable fails, resort may be had to the general as- sets, as in case of a general legacy; 4. [Residuary legacy.] A residuary legacy embraces only that which remains after all the bequests of the will are discharged; 5. [General legacy.] All other legacies are general lega- cies. History: Enacted March 21, 1872. § 1358. ESTATES CHARGEABLE. When a person dies intestate, all his property, real and personal, without any distinction between them, is chargeable with the payment of his debts, except as otherwise provided in this code and the Code of Civil Procedure. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 234. § 1359. ORDER OF RESORT TO ESTATE FOR DEBTS. The property of a testator, except as otherwise specially provided in this code and the Code of Civil Pro- cedure, must be resorted to for the payment of debts, in the following order: 1. The property which is expressly appropriated by the will for the payment of the debts; 2. Property not disposed of by the will; 3. Property which is devised or bequeathed to a residuary legatee; 4. 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 provided for. History: Enacted March 21. 1S72; amended March 30, 1874, Code Amdts. 1873-4, pp. 234-235. 542 Tit.VI,ch.III.] LEGACIES— ABATEMENT. §§ 1360-1364 §1360. SAME. [FOR LEGACIES.] The property of a testator, except as otherwise specially provided in this code and the Code of Civil Procedure, must be resorted to for the payment of legacies, in the following order: 1. The property which is expressly appropriated by the will for the payment of the legacies. 2. Property not disposed of by the will. 3. Property which is devised or bequeathed to a residuary legatee. 4. Property which is specifically devised or bequeathed. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 235. § 1361. SAME. [LEGACIES TO KINDRED.] Lega- cies to husband, widow, or kindred of any class are charge- able only after legacies to persons not related to the tes- tator. History: Enacted March 21, 1872. § 1362. ABATEMENT. Abatement takes place in any class only as between legacies of that class, unless a diflferent intention is expressed in the will. History. Enacted March 21, 1872. § 1363. SPECIFIC DEVISES AND LEGACIES. In a specific devise or legacy, the title passes by the will, Init possession can only be obtained from the personal repre- sentative; and he may be authorized liy the superior court to sell the property devised and ])cqueathed in the cases here- in provided. History: Enacted March 21, 1872; amended April C, 1880. Code Amdts. 1880 (C. C. pt.), p. 8. § 1364. HEIR'S CONVEYANCE GOOD, UNLESS WILL IS PROVED WITHIN FOUR YEARS. The rights of a purchaser or encumbrancer of real property, in good 543 §§ 1365-1367 CIVIL code. [Div.II.Pt.IV. faith and for value, derived from any person claiming the same by succession, are not impaired by any devise made by the decedent from whom succession is claimed, unless within four years after the devisor's death, the instrument containing such devise is duly proved as a will, and recorded in the office of the clerk of the superior court having juris- diction thereof, or. written notice of such devise is filed with the clerk of the county where the real property is situated. History: Enacted March 21, 1872; amended April 6, 18S0, Code Amdts. 1880 (C. C. pt.), p. 8; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 404. held unconsti- tutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 606. § 1365. POSSESSION OF LEGATEES. Where specific legacies are for life only, the first legatee must sign and de- liver to the second legatee, or, if there is none, to the per- sonal representative, an inventory of the property, expressing that the same is in his custody for life only, and that, on his decease, it is to be delivered and to remain to the use and for the benefit of the second legatee, or to the personal repre- sentative, as the case may be. History: Enacted March 21, 1872. § 1366. BEQUEST OF INTEREST. In case of a be- quest of the interest or income of a certain sum or fund, the income accrues from the testator's death. History: Enacted March 21, 1872. § 1367. SATISFACTION. A legacy, or a gift in contem- plation, fear, or peril of death, may be satisfied before death. History: Enacted March 21, 1872; amended March 30. 1874, Code Amdts. 1873-4, p. 235. 544 Tit.VI,ch.in.] LKGACIES— POWERS. §§1^68-1373 § 1368. LEGACIES, WHEN DUE. Legacies are due and deliverable at the expiration of one year after the testator's decease. Annuities commence at the testator's decease. History: Enacted March 21, 1872. § 1369. INTEREST. Legacies bear interest from tlie time when they are due and payable, except that legacies for maintenance, or to the testator's widow, bear interest from the testator's decease. History: Enacted Marcli 21, 1S72. §1370. CONSTRUCTION OF THESE RULES. The four preceding sections are in all cases to be controlled by a testator's express intention. History: Enacted March 21, 1872. § 1371. EXECUTOR ACCORDING TO THE TENOR. Where it appears, by the terms of a will, that it was the in- tention of the testator to commit the execution thereof and the administration of his estate to any person as executor, such person, although not named executor, is entitled to letters testamentary in like manner as if he had been named executor. History: Enacted March 21, 1872. § 1372. POWER TO APPOINT IS INVALID. .\n au- thority to an executor to appoint an executor is void. History: Enacted March 21, 1872. § 1373. EXECUTOR NOT TO ACT TILL QUALIFIED. No person has any power, as an executor, until he qualifies, except that, before letters have been issued, he may pay funeral charges and take necessary measures for the preser- vation of the estate. History: Enacted March 21, 1872. 18 545 §§1374-1377 CIVIL CODE. [Div.II,Pt.IV. § 1374. PROVISIONS AS TO REVOCATIONS. The provisions of this title in relation to the revocation of wills apply to all wills made by any testator living at the expira- tion of one year from the time it takes effect. History: Enacted March 21, 1S72. § 1375. EXECUTION AND CONSTRUCTION OF PRIOR WILLS NOT AFFECTED. The provisions of this title do not impair the validity of the execution of any will made before it takes effect, or affect the construction of any such will. History: Enacted March 21, 1S72. § 1376. LAW GOVERNING VALIDITY AND INTER- PRETATION OF WILLS. The validity and interpreta- tion of wills, wherever made, are governed, when relating to property within this state, by the law of this state, ex- cept as provided in section twelve hundred and eighty-five. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 187S-4, p. 235; amended by Code Commission, Act "March 16, 1901, Stats, and Amdts. 1900-1, p. 404, held unconsti- tutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 607. § 1377. LIABILITY OF BENEFICIARIES FOR TES- TATOR'S OBLIGATIONS. Those to whom property is given by will are liable for the obligations of the testator in the cases and to the extent prescribed by the Code of Civil Procedure. History: Enacted March 21, 1872. 546 Tit.VII.] SUCCESSION— DEFINITION. § 1383 TITLE Vn. SUCCESSION. § 1383. Succession defined. § 1384. Intestate's estate, to whom passes. § 1385. Personal representatives [repealed]. § 1386. Succession to and distribution of property of deceased person. § 1387. Illegitimate children to inherit in certain events. § 1388. Property of illegitimate child is succeeded to, when and how. § 1389. Degrees of kindred, how computed. § 1390. Same. [Collateral line.] § 1391. Same. [Ascending and descending direct line.] § 1392. Same. [Degrees in direct line.] S 1393. Same. [Degrees in collateral line.] § 1394. Relatives of the half-blood. § 1395. Advancements constitute part of distributive share. 1 1396. Advancements, when too much, or not enough. § 1397. What are advancements. § 1398. Value of advancements, how determined. § 1399. When heir, advanced to, dies before decedent. § 1400. Inheritance of husband and wife from each other. § 1401. Distribution of common property on death of wife. § 1402. Distribution of common property on death ''>f t}ie hus- band. § 1403. Inheritance by representation. § 1404. Aliens may inherit, when, and how. § 1405. Succession not claimed, attorney-general to cause to be sold, and proceeds deposited with state treasurer. § 1406. When the property and estate escheat to the state. ■§ 1407. Property escheated subject to charges as other prop- erty. § 1408. Successor liable for decedent's obligations. § 1409. Persons convicted of murder of decedent not to suc- ceed. § 1383. SUCCESSION DEFINED. Succc.-^sion is the coming in of another to take the property of one wlio dies without disposing of it by will. History: Enacted March 21, 1872. 547 §§ 1384-1386 CIVIL CODE. [Div.II.Pt.IV. § 1384. INTESTATE'S ESTATE, TO WHOM PASSES. The property, both real and personal, of one who dies with- out disposing of it by will, passes to the heirs of the in- testate, subject to the control of the probate court, and to the possession of any administrator appointed by that court, for the purposes of administration. History: Enacted March 21, 1872; amended March 30, 1S74, Code Amdts. 1873-4, p. 236. §1385. PERSONAL REPRESENTATIVES [repealed]. History: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 236. §1386. SUCCESSION AND DISTRIBUTION OF PROPERTY OF DECEASED PERSON. When any per- son having title to any estate not otherwise limited by mar- riage contract, dies without disposing thereof by will, it is succeeded to and must be distributed, unless otherwise ex- pressly provided in this code and the Code of Civil Pro- cedure, subject to the payment of his debts, in the following manner: 1. If the decedent leaves a surviving husband or wife, and only one child, or the lawful issue of one child, in equal shares to the surviving husband, or wife and child, or issue of such child. If the decedent leaves a surviving husband or wife, and more than one child living, or one child living and the lawful issue of one or more deceased children, one-third to the surviving husband or wife, and the remainder in equal shares to his children and to the lawful issue of any deceased child, by right of representation; but if there is no child of decedent living at his death, the remainder goes to all of his lineal descendants; and if all of the descendants are in the same degree of kindred to the decedent, they share equally, otherwise they take according to the right of representation. If the decedent leaves no surviving husband or wife, but leaves issue, the whole estate goes to such issue; and if such 548 Tit.VII.] SUCCESSION, DISTRIBUTION. § 1386 issue consists of more than one child living, or one child liv- ing and the law^ful issue of one or more deceased children, then the estate goes in equal shares to the children living, or to the child living and the issue of the deceased child or children by right of representation; 2. If the decedent leaves no issue, the estate goes one-half to the surviving husband or wife, and the other half to the decedent's father and mother in equal shares, and if either is dead the whole of said half goes to the other. If there is no father or mother, then one-half goes in equal shares to the brothers and sisters of decedent and to the children or grand- children of any deceased brother or sister by right of repre- sentation. If the decedent leaves no issue, nor husband nor wife, the estate must go to his father and mother in equal shares, or if either is dead then to the other; 3. If there is neither issue, husband, wife, father, nor mother then in equal shares to the brothers and sisters of de- cedent and to the children or grandchildren of any deceased brother or sister, by right of representation; 4. If the decedent leaves a surviving husband or wife, and neither issue, father, mother, brother, sister, nor the children or grandchildren of a deceased brother or sister, the whole estate goes to the surviving husband or wife; 5. If the decedent leaves neither issue, husband, wife, fa- ther, mother, brother, nor sister, the estate must go to the next of kin, in equal degree, excepting that, when there are two or more collateral kindred, in equal degree, but claiming through different ancestors, those who claim through the nearest ancestor must be preferred to those claiming through an ancestor more remote; 6. If the decedent leaves several children, or one child and the issue of one or more children, and any such surviving child dies under age and not having been married, all the estate that came to the deceased child by inheritance from such decedent descends in equal shares to the other children 549 § 1386 CIVIL CODE. [Div.II.Pt.IV. of the same parent and to the issue of any such other chil- dren who are dead, by right of representation; 7. If, at the death of such child, who dies under age, not having been married, all the other children of his parents are also dead, and any of them has left issue, the estate that came to such child by inheritance from his parent descends to the issue of all other children of the same parent; and if all the issue are in the 'same degree of kindred to the child, they share the estate equally, otherwise they take according to the right of representation; 8. If the deceased is a widow, or widower, and leaves no issue, and the estate, or any portion thereof, was common property of such decedent and his or her deceased spouse, while such spouse was living, such property goes in equal shares to the children of such deceased spouse and to the descendants of such children by right of representation, and if none, then one-half of such common property goes to the father and mother of such decedent in equal shares, or to the survivor of them if either be dead, or if both be dead, then in equal shares to the brothers and sisters of such de- cedent and to the descendants of any deceased brother or sister by right of representation, and the other half goes to the father and mother of such deceased spouse in equal shares, or to the survivor of them if either be dead, or if both be dead, then in equal shares to the brothers and sis- ters of such deceased spouse and to t}ie descendants of any deceased brother or sister by right of representation. If the estate, or any portion thereof, was separate property of such deceased spouse, while living, and came to such de- cedent from such spouse by descent, devise, or bequest, such property goes in equal shares to the children of such spouse and to the descendants of any deceased child by right of rep- resentation, and if none, then to the father atid mother of such spouse, in equal shares, or to the survivor of them if either be dead, or if both be dead, then in equal shares to 550 Tit. VII.] BASTARDS — INHERIT WHEN. § 1387 the brothers and sisters of such spouse and to the descend- ants of any deceased brother or sister by right of representa- tion. 9. If the decedent leaves no husband, wife, or kindred, and there are no heirs to take his estate or any portion thereof, under subdivision eight of this section, the same escheats to the state for the support of tlie common schools. History: Enacted March 21, 1872; amended March 30, 1S74, Code Amdts. 1873-4, p. 236; Aprjl 23, 1880, Code Amdts. 1880 (C. C. pt.), p. 14; by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 404, lield unconstitutional, see history, § .593 ante; amendment re-enacted March 21, 190.5, Stats, and Amdts. 1905, pp. 607, 608; amended March 18, 1907, Stats, and Amdts. 1907, pp. 567-569, Kerr's Stats, and Amdts. 1906-7, pp. 424, 425. §1387. ILLEGITIMATE CHILDREN TO INHERIT IN CERTAIN EVENTS. Every illegitimate child is an heir of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child; and in all cases is an heir of his mother; and inherits his or her estate, in whole or in part, as the case may be, in the same manner as if he had been born in law- ful wedlock; but he does not represent his father or mother b)"- inheriting any part of the estate of his or her kindred, either lineal or collateral, unless, before his death, his par- ents shall have intermarried, and his father, after such mar- riage, acknowledges him as his child, or adopts him into his family; in which case such child and all the legitimate chil- dren are considered brothers and sisters, and on the death of either of them, intestate, and without issue, the others in- herit his estate, and are heirs, as hereinbefore provided, in like manner as if all the children had been legitimate; sav- ing to the father and mother, respectively, their rights in the estates of all the children in like manner as if all had been legitimate. The issue of all marriages null in law, or dis- solved by divorce, are legitimate. 551 §§1388-1391 CIVIL CODE. [Div.II.Pt.IV. Histoo": Enacted March 21, 1872; amended by Code Commis- sion, Act Marcli 16, 1901, Stats, and Amdts. 1900-1, p. 405, held unconstitutional, see history, § 4 ante. § 1388. PROPERTY OF ILLEGITIMATE CHILD IS SUCCEEDED TO, WHEN AND HOW. The estate of an illegitimate child, who has been legitimated by the subse- quent marriage of its parents, or adopted by the father as provided by section two hundred and thirty, and who dies intestate, is succeeded to as if he were born in lawful wed- lock. If such child has not been so legitimated or adopted, his estate goes to his lawful issue, or, if he leaves no issue, to his mother, or in case of her decease, to her heirs at law. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 406, held unconstitutional, see history, § 4 ante; amendment re- enacted March 21, 1905, Stats, and Amdts. 1905, p. 609. § 1389. DEGREE OF KINDRED, HOW COMPUTED. The degree of kindred is established by the number of gen- erations, and each generation is called a degree. History: Enacted March 21, 1872. § 1390. SAME. [COLLATERAL LINE.] The series of degrees forms the line; the series of degrees between per- sons who descend from one another is called direct or lineal consanguinity; and the series of degrees between persons who do not descend from one another, but spring from a common ancestor, is called the collateral line or collateral consanguinity. History: Enacted March 21, 1872, founded upon Louisiana Civil Code, art. 886. §1391. SAME. [ASCENDING AND DESCENDING DIRECT LINE.] The direct line is divided into a direct line descending and a direct line ascending. The first is that 552 Tit.VIL] DEGREES— DIFFERENT LINES. §§1392-1394 which connects the ancestors with those who descend from him. The second is that which connects a person with those from whom he descends. History: Enacted March 21, 1872, founded upon Louisiana Civil Code, art. 886. § 1392. SAME. [DEGREES IN DIRECT LINE.] In the direct line there are as many degrees as there are gen- erations. Thus, the son is, with regard to the father, in the first degree; the grandson in the second; and vice versa with regard to the father and grandfather toward the sons and grandsons. History: Enacted March 21, 1872, founded upon Louisiana Civil Code, art. 887. § 1393. SAME. [DEGREES IN COLLATERAL LINE.] In the collateral line the degrees are counted by generations, from one of the relations up to the common ancestor, and from the common ancestor to the other relations. In such computation the decedent is excluded, the relative included, and the ancestor counted but once. Thus, brothers are re- lated in the second degree; uncle and nephew in the third degree; cousins german in the fourth, and so on. Histoi-y: Enacted March 21, 1872, founded upon Louisiana Civil Code, art. 8SS; Montesq. Esprit des Lois, liv. 27. § 1394. RELATIVES OF THE HALF-BLOOD. Kin- dred of the half-blood inherit equally with those of the whole blood in the same degree, unless the inheritance come to the intestate by descent, devise, or gift of some one of his ancestors, in which case all those who are not of the blood of such ancestors must be excluded from such inheritance. History: Enacted March 21, 1872, founded upon § 4 Act April 13, 1850, Stats. 1850, p. 221. 553 §§1395-1398 CIVIL CODE. [Div.II.Pt.IV. § 1395. ADVANCEMENTS CONSTITUTE PART OF DISTRIBUTIVE SHARE. Any estate, real or personal, given by the decedent in his lifetime as an advancement to any child, or other heir, is a part of the estate of the decedent for the purposes of division and distribution thereof among Iiis heirs, and must be taken by such child, or other heir, to- ward his share of the estate of the decedent. History: Enacted March 21, 1872, founded upon § 5 Act April 13, 1850, Stats. 1850, p. 221; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 406, held unconsti- tutional, see history, § 4 ante; amendment re-enacted March 21, 1905, p. 609. § 1396. ADVANCEMENTS, WHEN TOO MUCH, OR NOT ENOUGH. If the amount of such advancement ex- ceeds the share of the heir receiving the same, he must be excluded from any further portion in the division and distribution of the estate, but he must not be required to refund any part of such advancement; and if the amount so received is less than his share, he is entitled to so much more as will give him his full share of the estate of the decedent. History: Enacted March 21, 1872, founded upon § 6 Act April 13, 1850, Stats. 1850, p. 221. § 1397. WHAT ARE ADVANCEMENTS. All gifts and grants are made as advancements, if expressed in the gift or grant to be so made; or if charged in writing by the decedent as an advancement, or acknowledged in writing as such, by the child or otHer successor or heir. History: Enacted March 21, 1S72, founded upon § 7 Act April 13, 1850, Stats. 1850, p. 221. § 1398. VALUE OF ADVANCEMENTS, HOW DETER- MINED. If the value of the estate so advanced is expressed in the conveyance, or in the charge thereof made by the de- cedent, or in the acknowledgment of the party receiving it, it 554 Tit. VII.] ADVANCEMENT— DEATH OF HEIR. §§ 1399-1401 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 ascer- tained. History: Enacted March 21, 1872, founded upon § 8 Act April 13, 1850, Stats. 1850, p. 221. § 1399. WHEN HEIR, ADVANCED TO, DIES BE- FORE DECEDENT. If any child, or other heir receiving advancement, dies before the decedent, leaving heirs, the advancement must be taken into consideration in the di- vision and distribution of the estate, and the amount the"reof must be allowed accordingly by the representatives of the heirs receiving the advancement, in like manner as if the advancement had been made directly to them. History: Enacted March 21, 1872, founded upon § 9 Act April IZ, 1850, Stats. 1850, p. 221; amended by Code Commission, Act March 16, 1901, Stats, and Anidts. 1900-1, p. 406, held uncon- stitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 609. § 1400. INHERITANCE OF HUSBAND AND WIFE FROM EACH OTHER. The provisions of the preceding sections of this title, as to the inhepitance of the husband and wife from each other, apply only to the separate prop- erty of the decedents. History: Enacted March 21, 1872, founded upon § 10 Act April 13, 1850, Stats. 1850, p. 221. § 1401. DISTRIBUTION OF COMMUNITY PROPER- TY ON DEATH OF WIFE. Upon the death of the wife, the • entire community property, without administration, be- longs to the surviving husband, except such portion thereof as may have been set apart to her by judicial decree, for her support and maintenance, which portion is subject to her testamentary disposition, and in the absence of such 555 §§ 1402-1404 CIVIL CODE. [Div.II,Pt.IV. disposition, goes to her descendants, or heirs, exclusive of her husband. History: Enacted March 21, 1872, founded upon § 1 Act April 17, 1850, Stats. 1850, p. 255, as amended April 4, 1864, Stats. 1863-4, p. 363; amended April 30, 1874, Code Amdts. 1873-4, p. 238. § 1402. DISTRIBUTION OF COMMON PROPERTY ON DEATH OF THE HUSBAND. Upon the death of the husband, one-half of the community property goes to the surviving wife, and the o't-her half is subject to the testa- mentary disposition of the husband, and in the absence of such disposition, goes to his descendants, equally, if such descendants are in the same degree of kindred to the dece- dent; otherwise, according to the right of representation; and in the absence of both such disposition and such de- scendants, is subject to distribution in the same manner as the separate property of the husband. In case of the disso- lution 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 admin- istration. History: Enacted March 21, 1872, founded upon § 11 Act April 17, 1850, "Stats. 1850, p. 255, as amended April 4. 1864, Stats. 1S63-4, p. 363. § 1403. INHERITANCE BY REPRESENTATION. In- heritance 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 have taken if living. Posthumous chil- dren are considered as living at the death of their parents. History: Enacted March 21, 1872, founded upon § 11 Act April 13, 1850, Stats. 1850, p. 221. § 1404. ALIENS MAY INHERIT, WHEN, AND HOW. Resident aliens may take in all cases by succession as citi- 556 Tit.VII.] SUCCESSION NOT CLAIMED. §§ 1405, 1406 zens; and no person capable of succeeding under the pro- visions of this title is precluded from such succession by reason of the alienage of any relative; but no non-resident foreigner can take by succession unless he appears and claims such succession within five years after the death of the decedent to whom he claims succession. History: Enacted March 21, 1872, founded upon Const. 1S49, art. I, § 17, and § 1 Act April 19, 1856, Stats. 1856, p. 137. § 1405. SUCCESSION NOT CLAIMED, ATTORNEY- GENERAL TO CAUSE TO BE SOLD, AND PROCEEDS DEPOSITED WITH STATE TREASURER. When suc- cession is not claimed as provided in the preceding section, the superior court, on information, must direct the attorney- general to reduce the property to his possession or that of the state, or to cause it to be sold, and it or its proceeds to be deposited in the state treasury for the benefit of the person entitled thereto, to be paid to him, if, within five years after such deposit, he appears in the court in which such information was filed and asks for a judgment or order entitling him thereto. History: Enacted March 21, 1S72, founded upon § 1 Act April 19, 1856, Stats. 1856, p 137; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 406, held uncon- stitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 609. § 1406. WHEN THE PROPERTY AND ESTATE ESCHEAT TO THE STATE. When sucli judgment or or- der is obtained, a certified copy thereof must be filed with the state treasurer as his voucher. Thereupon the property must be delivered, or the proceeds paid, to the claimant, on filing his receipt therefor. If no one succeeds to the estate or the proceeds, as herein provided, the property of the de- 557 / Ir §§1407-1409 CIVIL CODK. fDiv.II,Pt.IV. cedent devolves and escheats to the people of the state, and must be placd by the state treasurer to tlie credit of the scliool fund. History: Enacted March 21, 1872, founded upon § 1 Act April 19, 1856, Stats. 1S56, p. 137; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 407, held uncon- stitutional, see liistory, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 610. § 1407. PROPERTY ESCHEATED SUBJECT TO CHARGES AS OTHER PROPERTY. Real property pass- ing to the state under the last section, whether held by the state or its ofhcers, is subject to the same charges and trusts to which it would have been subject if it had passed by suc- cession, and is also subject to all the provisions of title eighy part three, of the Code of Civil Procedure. History: Enacted March 21, 1872, founded upon Act April 30, 1S55, Stats. 1855, pp. 221, 222, as amended by Act February 16, 1870, Stats. 1869-70, p. 72. § 1408. SUCCESSOR LIABLE FOR DECEDENT'S OB- LIGATIONS. Those who succeed to the property of a de- cedent are liable for his obligations in the cases and to the extent prescribed by the Code of Civil Procedure. History: Enacted March 21, 1872. § 1409. PERSON CONVICTED OF MURDER OF DE- CEDENT, NOT TO SUCCEED. No person who has been convicted of the murder of the decedent shall be entitled to succeed to any portion of his estate; but the portion there- of to which he would otherwise be entitled to succeed de- scends to the other persons entitled thereto under the pro- visions of this title. History: Enacted March 21, 1905, Stats, and Amdts. 1905, p. 610. 558 Tit.Vni.] KIGHT TO WATER— ACQUIRING. §1410 TITLE VIII. WATER-RIGHTS. § 1410. Rights to water may be acquired by appropriation. § 1410a. Use of waters flowing out of state. § 1410b. Maintenance of flow of water in streams to canal in- takes. §1411. Appropriation must be for a useful purpose. § 1412. Point of diversion may be clianged. § 1413. Water may be turned into natural channels. '§ 1414. First in time, first in right. §1415. Notice of appropriation of water; contents. Recording. § 1416. Diligence in appropriation of water. § 1417. Completion defined. § 1418. Doctrine of relation applied. § 1419. Forfeiture. § 1420. Rights of present claimant. § 1421. Recorder to keep book in which to record notice. § 1422. Time witliin which to commence excavation on public reservations. § 1410. HOW RIGHTS TO WATER MAY BE AC- QUIRED. All water or the use of water within the state of California is the property of the people of the state of Cali- fornia, but the right to the use of running water flowing in a river or stream or down a canyon or ravine may be ac- quired by appropriation in the manner provided by law,' pro- vided, that no water for the generation of electricity or elec- trical or other power may be appropriated for a longer period than twenty-five years, except by a municipal corporation, other than an irrigation district or a lighting district, or by an irrigation district when such electricity, electrical or other power is for use and distribution only within its own limits, and as subsidiary to and mainly for the purpose of serving and carrying out irrigation, or by a lighting district when such electricity, electrical or other power is for use and distribution only within its own limits. History: Enacted March 21, 1S72; amended April 8, 1911, Stats, and Amdts. 1911, p. 421. lu effect immediately. 559 n §§ 1410a, 1410b CIVIL CODE. [Div.II,Pt.l V. § 1410a. USE OF WATERS FLOWING OUT OF STATE. The entire flow of water in any natural stream which carries water from the State of California into any other state is subject to use in the State of California, under the laws of the State of California, and the right may be, so far as not already acquired by use in the State of California, acquired and held under the laws of the State of California. The rights to the use of such water held under the laws of the State of California, shall be prior and superior to any rights to the waters of such streams held under the laws of any other state. History: Enacted April 25, 1913, Stats, and Amdts. 1913, p. 93. .In effect August 10, 1913. § 1410b. MAINTENANCE OF FLOW OF WATER IN STREAMS TO CANAL INTAKES. The flow of water in any natural stream to. the intake of any canal diverting water therefrom for sale, rental or distribution to the public or for any public use, or the use of any farming neighborhood may be maintained by the person in charge of such use by restoring or repairing any break in the bank of the stream, and by maintaining the banks of the stream, and by pre- venting by physical structure and other appropriate means any increased flow of water through any natural by-ways of water which carry or threaten to carry such increase of water of the stream avjay from such intake; provided, how- ever, that no act herein authorized, when performed, shall prevent, retard or obstruct the building thereafter of any reclamation, protection or flood control levee and the main- tenance thereof; nor shall any act herein authorized prevent the use of any natural channel nor the enlargement thereof, for municipal purposes or for use in connection with any artificial system of drainage, irrigation or flood control not causing the flow of water in the channel at the intake of such canal to be less than the quantity of water the owners and appropriators may have the right to divert into said intake; 560 Tit. VIII.] APPROPRIATION — DIVERSION. §§ 1411-1413 nor shall any act herein authorized prevent the use of any- natural channel or the enlargement thereof to convey water appropriated under the laws of the State of California, where such natural channel shall be designated as the means, or part of the means of conveying the water so appropriated; nor shall the acts herein authorized limit the powers or au- thority of the water commission of the State of California to accomplish in its own way the purposes of this section, nor interfere with the construction of any flood control works in accordance with any plan of flood control adopted by the reclamation board. History: Enactment approved June 9, 1915, Stats, and Amdts. 1915, p. 1376. In effect August 8, 1915. § 1411. APPROPRIATION MUST BE FOR A USEFUL PURPOSE. The appropriation must be for some useful or beneficial purpose, and when the appropriator or his suc- cessor in interest ceases to use it for such a purpose, the right ceases. History: Enacted March 21, 1872. § 1412. POINT OF DIVERSION MAY BE CHANGED. The person entitled to the use may change the place of di- version, if others are not injured by such change, and may extend the ditch, fluine, pipe, or aqueduct by which the di- version is made to places beyond that where the first use was made. History: Enacted March 21, 1872. § 1413. WATER MAY BE TURNED INTO NATURAL CHANNELS. The water appropriated may be turned into the channel of another stream and mingled with its water, and then reclaimed; but in reclaiming it the water alreadj^ appropriated by another must not be diminished. History: Enacted March 21, 1872. 561 §§1414-1416 CIVIL CODE. [Div.II.Pt.IV. § 1414. FIRST IN TIME, FIRST IN RIGHT. As be- tween appropriators, the one first in time is the first in right. History: Enacted March 21, 1872. § 1415. NOTICE OF APPROPRIATION OF WATER; CONTENTS. RECORDING. A person desiring to appro- priate water must post a notice, in writing, in a conspicuous place at the point of intended diversion, stating therein: 1. That he claims the water there flowing to the extent of (giving the number) inches, measured under a four-inch pressure; 2. The purpose for which he claims it, and the place of intended use; 3. The means by which he intends to divert it, and the size of the flume, ditch, pipe, or aqueduct in which he intends to divert it. [Notice must be recorded.] A copy of the notice must, within ten days after it is posted, be recorded in the office of the recorder of the county in which it is posted. After filing such copy for record, the place of intended diversion or the place of intended use or the means by which it is intended to divert the water, may be changed by the person posting said notice or his assigns, if others are not injured by such change. This provision applies to notices already filed as well as to notices hereafter filed. History: Enacted March 21, 1872; amended March 21, 1903, Stats, and Amdts. 1903, p. 361. In force March 21, 1903. § 1416. DILIGENCE IN APPROPRIATION OF WATER. Within sixty days after the notice is posted, the claimant must commence the excavation or construction of the works in which he intends to divert the water, or the survey, road or trail building, necessarily incident thereto, and must prosecute the work diligently and uninterruptedly to completion, unless temporarily interrupted by snows or 562 Tit. VIII.] DILIGENCE— COMPLETION. § I417 rain; provided, that if the erection of a dam has been rec- ommended by the California debris commission at or near the place where it is intended to divert the water, the claim- ant shall have sixty days after the completion of such dam ir which to commence the excavation or construction of the works in which he intends to divert the water; provided, that whenever any city and county, or any incorporated city or town within this state makes, or has made, or acquires, or has acquired any appropriation of any of the waters of this state in accordance with the provisions of section four- teen hundred and fifteen of this code, it shall not be neces- sary for such city and county, city or town to commence the work for development of more of the water so claimed than is actually necessary for the immediate needs of such city and county, city or town and it shall be held to be a suffi- cient compliance with the requirements of this chapter, to the full amount of water stated in the notice posted and re- corded, for such city and county, city or town to within sixty days make the necessary surveys, or within six months to authorize the issuance of municipal bonds, for the construc- tion of the necessary works designed to supply such city and county, city or town with the water required for immediate use. Any appropriation heretofore made by any such city and county, city or town in connection with which surveys were at any time made, or an issue of bonds authorized for the construction of any portion of the works necessary for a diversion of any part of the water appropriated, is hereby confirmed to the full amount of water stated in the original notice or notices. History: Enacted March 21, 1872; amended March 22, 1895, Stats, and Amdts. 189.5, p. 396; March 21, 1907, Stats, and Amdts. 1907, p. 780.. Kerr's Stats, and Amdts. 1906-7, p. 425; May 1, 1911, Stats, and Amdts. 1911, p. 1419. §1417. COMPLETION DEFINED. By "completion" is meant conducting the waters to the place of intended use. Hislory: Enacted March 21, 1872. 563 §§ 1418-1422 Civil. CODE. [Div.II.Pt.IV. § 1418. DOCTRINE OF RELATION APPLIED. 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. History: Enacted March 21, 1872. § 1419. FORFEITURE. A failure to comply with such rules deprives the claimants of the right to the use of the water as against a subsequent claimant who complies there- with. History: Enacted March 21, 1872. §1420. RIGHTS OF PRESENT CLAIMANT. Persons who have heretofore claimed the right to water, and who have not constructed works in which to divert it, and who have not diverted nor applied it to some useful purpose, must, after this title takes effect, and within twenty days there- after, proceed as in this title provided, or their right ceases. History: Enacted March 21, 1872. § 1421. RECORDER TO KEEP BOOK IN WHICH TO RECORD NOTICES. The recorder of each county must keep a book, in which he must record the notices provided for in this title. History: Enacted March 21, 1872. § 1422. TIME WITHIN WHICH TO COMMENCE EX- CAVATION ON PUBLIC RESERVATIONS. If the place of intended diversion or any part of the route of in- tended conveyance of water so claimed, be within, and a part of, any national park, forest reservation, or other pub- lic reservation, and be so shown in the notice of appropria- tion of said water, then the claimant shall have sixty days, after the grant of authorit}'- to occupy and use such park 564 Tit. VIII.] TIME TO COMMENCE, ETC. § 1422 or reservation for such intended purpose, within which to commence the excavation or construction of said works; provided, that within sixty days after the posting of said no- tice of appropriation, as provided in section fourteen hun- dred and fifteen of the Civil Code, the claimant shall in good faith commence (and thereafter diligently and continuously, except when temporarily interrupted by snow or rain, prose- cute to completion) such surveys and other work as under the regulations governing such park or reservation, may be required as preliminary to, or for use with, an application for such authority; and provided also that the claimant shall in good faith on completion of said survey and preliminary work, apply to the officer, board, or bodJ^ having charge of such park or reservation, for such authority, and shall there- after, prosecute said application with reasonable diligence. History: Enacted March 21, 1S72; repealed March 15, 1SS7, Stats, and Amdts. 1S87, p. 114; present act, which is entirely new, passed March 24, 1903, Stats, and Amdts. 1903, p. 397. 565 §§1424,1425 CIVIL CODE. [Div.II,Pt.IV. TITLE IX. HYDRAULIC MINING. § 1424. Where hydraulic mining can be carried on. § 1425. Meaning of hydraulic mining. § 1424. WHERE HYDRAULIC MINING CAN BE CARRIED ON. The business of hydraulic mining may be carried on within the state of California wherever and when- ever the same can be carried on without material injury to the navigable streams, or the lands adjacent thereto. History: Enacted March 24, 1S93, Stats, and Amdts. 1S93, p. 337. § 1425. MEANING OF HYDRAULIC MINING. Hy- draulic mining, within the meaning of this title, is mining by means of the application of water, under pressure, through a nozzle, against a natural bank. History: Enacted March 24, 1S93, Stats, and Amdts. 1893, p. 337. 566 Tit.X.] LOCATING MINES, ETC. § 1426 [A new title added by Act of legislature March 13, 1909, (Stats, and Amdts. 1909, p. 313), to take effect and be in force on and after July 1, 1909.] TITLE X. LOCATING MINING CLAIMS, TUNNEL RIGHTS, MILL-SITES, ETC. § 1426. Who may locate mining claim, etc. Manner of loca- tion. § 1426a. Locator must define boundaries, how. § 1426b. Recording copy of notice. Fee of recorder. § 1426c. Location of placer claim. How made. § 1426d. Same. Recording copy of notice. Fee of recorder. § 1426e. Locator of tunnel right. Posting notice. Contents of notice. 1 1426f. Boundary lines of tunnel. How established. § 1426g. Recording notice of tunnel location. Recorder's fee. § 1426h. Amended notice of location. Not to interfere with existing rights of others. § 14261. Boundaries established by mineral surveyor. ■§ 1426J. Mill site location. By proprietor of vein, etc. Amount of land and manner of making. § 1426k. Same. Recording copy of location notice. Fee of recorder. § 14261. Annual work or improvements. Amount required. § 1426m. Same. AfHdavit, contents of. Certified copy of evi- dence of performance. § 1426n. Same. Recording affidavit. Fee for. § 1426o. Co-owner. Notice to delinquent co-owner. Proof of service. § 1426p. Record of location. Evidence of same force as origi- nal notice. § 1426q. Record of instrument.?. Certified copies admissible as evidence. § 1426r. Mining district rules and regulations. Not affected by act. § 1426s. Development work. Failure or neglect to perform in manner and time required. Effect of. Sec. 2. Repealing clause. 567 §§1426-1426b CIVIL code. [Div.II.Pt.IV. § 1426. WHO MAY LOCATE MINING CLAIM, ETC. MANNER OF LOCATION. Any person, a citizen of the United States, or who has declared his intention to become such, who discovers a vein or lode of quartz, or other rock in place, bearing gold, silver, cinnibar, lead, tin, copper, or other valuable deposit, may locate a claim upon such vein or lode, by defining the boundaries of the claim, in the manner here- mafter described, and by posting a notice of such location, at the point of discQvery, which notice must contain: First — The name of. the lode or claim. Second— The name of the locator or locators. Third — The number of linear feet claimed in length along the course of the vein, each way from the point of discovery, with the width on each side of the center of the claim, and the general course of the vein or lode, as near as may be. Fourth — The date of location. Fifth — Such a description of the claim by reference to some natural ob- ject, or permanent monument, as will identify the claim lo- cated. Hi.story: Enacted March 13, 1909, Stats, and Amdts. 1909, p. 313. § 1426a. LOCATOR MUST DEFINE BOUNDARIES, HOW. The locator must define the boundaries of his claim so that they may be readily traced, and in no case shall the claim extend more than fifteen hundred feet along the course of the vein or lode, nor more than three hundred feet on either side thereof, measured from the center line of the vein at the surface. History: Enacted March 13, 1909, Stats, and Amdts. 1909, p. 314. § 1426b. RECORDING COPY OF NOTICE. FEE OF RECORDER. Within thirty days after the posting of his notice of location upon a lode mining claim, the locator shall record a true copy thereof in the office of the county re • 568 Tit.X.] PLACER CLAIM— LOCATION. §§ 1426c, 1426d corder of the county in which such claim is situated, for which service the county recorder shall receive a fee of one dollar. History: Enacted March 13, 1909, Stats, and Amdts. 1909, p. 314. § 1426c. LOCATION OF PLACER CLAIM. HOW MADE. The location of a placer claim shall be made in the following manner: By posting thereon, upon a tree, rock in place, stone, post or monument, a notice of location, con- taining the name of the claim, name of locator or locators, date of location, number of feet or acreage claimed, such a description of the claim by reference to some natural ob- ject or permanent monument as will identify the claim lo- cated, and by marking the boundaries so that they may be readily traced; provided, that where the United States sur- vey has been extended over the land embraced in the loca- tion, the claim may be taken by legal subdivisions and no other reference than those of said survey shall be required and the boundaries of a claim so located and described need not be staked or monumented. The description by legal sub- divisions shall be deemed the equivalent of marking. Hi-story: Enacted March 13, 1909, Stats, and Amdts. 1909, p. 314. § 1426d. SAME. RECORDING COPY OF NOTICE. FEE OF RECORDER. Within thirty days after the post- ing of the notice of location of a placer claim, the locator shall record a true copy thereof in the office of the county recorder of the county in which such claim is situated, for which service the recorder shall receive a fee of one dollar. History: Enacted March 13, 1909, Stats, and Amdts. 1909, p. 314. S69 §§ 1426e-1426h CIVIL CODE. [Div.II,Pt.I V. § 1426e. LOCATOR OF TUNNEL RIGHT. POSTING NOTICE. CONTENTS OF NOTICE. The locator of a tunnel right or location, shall locate his tunnel right or lo- cation by posting a notice of location at the face or point of commencement of the tunnel, which must contain: First — The name of the locator or locators. Second — The date of the location. Third — The proposed course or direction of the tunnel. Fourth — A description of the tunnel, with reference to some natural object or permanent monument as shall identify the claim or tunnel right. History: Enacted March 13, 1909, Stats, and Amdts. 1909, p. 314. § 1426f. BOUNDARY LINES OF TUNNEL. HOW ESTABLISHED. The boundary lines of the tunnel shall be established by stakes or monuments placed along the lines at an interval of not more than six hundred feet from the face or point of commencement of the tunnel to the ter- minus of three thousand feet therefrom. Hi.stor.v: Enacted March 13, 1909, Stats, and Amdts. 1909, p. 314. § 1426g. RECORDING NOTICE OF TUNNEL LOCA- TION. RECORDER'S FEE. Within thirty days after the posting the notice of location of the tunnel right or location, the locator shall record a true copy thereof, in the office of the county recorder of the county in which such claim is situated, for which service the recorder shall receive a fee of one dollar. History: Enacted March 13, 1909, Stats, and Amdts. 1909, p. 314. § 1426h. AMENDED NOTICE OF LOCATION. NOT TO INTERFERE WITH EXISTING RIGHTS OF OTH- ERS. If at any time the locator of any mining claim here- 570 Tit.X.] BOUNDARIES— MILL-SITE. §§ 1426i, 1426J tofore or hereafter located, or his assigns, shall apprehend that his original location notice was defective, erroneous, or that the requirements of the law had not been complied with before filing; or in case the original notice was made prior to the passage of this act, and he shall be desirous of secur- ing the benefit of this act, such locator, or his assigns, may file an additional notice, subject to the provisions of this act; provided, that such amended location notice does not inter- fere with the existing rights of others at the time of posting and filing such amended location notice, and no such amend- ed location notice or the record thereof, shall preclude the claimant, or claimants from proving any such title as he or they may have held under previous locations. History: Enacted March 13, 1909, Stats, -and Amdts. 1909, p. 315. § 14261. • BOUNDARIES ESTABLISHED BY MINERAL SURVEYOR. Where a locator, or his assigns, has the boundaries and corners of his claim established by a United States deputy mineral surveyor, or a licensed surveyor of this state, and his claim connected with the corner of the public or minor surveys of an established initial point, and incor- porates into the record of the claim, the field notes of such survey, and attaches to and files with such location notice, a certificate of the surveyor, setting forth: First, that said survey was actually made by him, giving the date thereof; Second, the name of the claim surveyed and the location thereof; Third, that the description incorporated in the de- claratory statement is sufficient to identify; such survey and certificate becomes a part of the record, and such record is prima facie evidence of the facts therein contained. History: Enacted March 13, 1909, Stats, and Amdts. 1909, p. 315. § 1426J. MILL-SITE LOCATION. BY PROPRIETOR OF VEIN, ETC. AMOUNT OF LAND AND MANNER OF MAKING. The proprietor of a vein or lode claim or 571 §§ 1426k-1426m CIVIL CODE. [Div.II.Pt.IY. mine, or the owner of a quartz mill or reduction works, or any person qualified by the laws of the United States, may locate not more than five acres of non-mineral land as a mill-site. Such location shall be made in the same manner as hereinbefore required for locating placer claims. History: Enacted March 13, J909, Stats, and Amdts. 1909, p. 315. § 1426k. SAME. RECORDING COPY OF LOCATION NOTICE. FEE OF RECORDER. The locator of a mill site claim or location shall, within thirty days from the date of his location, record a true copy of his location notice with the county recorder of the county in which such location is situated, for whicli service the recorder shall receive a fee of one dollar. History: Enacted March 13, 1909, Stats, and Amdts. 1909, p. 315. § 14261. ANNUAL WORK OR IMPROVEMENTS. AMOUNT REQUIRED. The amount of work done or im- provements made during each year to hold possession of a mining claim shall be that prescribed by the laws of the United States, to-wit: One hundred dollars annually. History: Enacted March 13, 1909, Stats, and Amdts. 1909, p. 315. § 1426m. SAME. AFFIDAVIT, CONTENTS OF. CER- TIFIED COPY OF EVIDENCE OF PERFORMANCE. Whenever mine owner, compan}^ or corporation shall have performed the labor and made the improvements required by law upon any mining claim, the person in whose behalf such labor was performed or improvements made, or some one in his behalf, shall within thirty daj's after the time lim- ited for performing such labor or making such improve- ments make and have recorded by the county recorder, in 572 Tit.X.] AFFIDAVIT— RECORDING. §§ I426n, 1426o books kept for tliat purpose, in the county in which such mining claim is situated, an affidavit setting forth the value of labor or improvements made, the name of the claim, and the name of the owner or claimant of said claim at whose expense the same was made or performed. Such affidavit, or a copy thereof, duly certified by the county re- corder, shall be prima facie evidence of the performance of such labor or the making of such improvements, or both. History: Enacted March 13, 1909, Stats, and Amdts. 1909, p. 315. § 1426n. SAME. RECORDING AFFIDAVIT, FEE FOR. For recording the affidavit herein required, the county record-er shall receive a fee of- ten cents per folio, twenty cents for endorsement and ten cents for indexing the name of each claim aad each owner. History: Enacted March 13, 1909, Stats, and Amdts. 1909, p. 316; amended May 21, 1915, Stats, and Amdts. 1915, p. 734. lu eirect August S, 1915. § 14260. CO-OWNER. NOTICE TO DELINQUENT CO-OWNER. PROOF OF SERVICE. Whenever a co- owner or co-owners of a mining claim shall give a delinquent co-owner or co-owners the notice in writing or notice by publication provided for in section twenty-three hundred and twenty-four, Revised Statutes of the United States, an affi- davit of the person giving such notice, stating the time, place, manner of service, and by whom and upon whom such ser- vice was made, shall be attached to a true copy of such no- tice, and such notice and affidavit must be recorded in the office of the county recorder, in books kept for that purpose, in the county in which the claim is situated, within ninety days, after the giving of such notice; for the recording of which said recorder shall receive the same fees as are now allowed by law for recording deeds; 573 § 14260 CIVIL CODE. [Div.II,Pt.IV. [Notice by publication — Proof of service.] Or if such no- tice is given by publication in a newspaper, there shall be attached to a printed copy of such notice an affidavit of the printer or his foreman, or principal clerk of such paper, stal- ing the date of the first, last and each insertion of such no- tice therein, and where the newspaper was published during that time, and the name of such newspaper. Such affidavit and notice shall be recorded as aforesaid, within one liundred and eighty days after the first publication thereof. [Notice and certified copy — Prima facie evidence.] The original of such notice and affidavit, or a duly certified copy of the record thereof, shall be prima facie evidence that the delinquent mentioned in section twenty-three hundred and twenty-four has failed or refused to contribute his propor- tion of the expenditure required by that section, and of the service of publication of said notice; provided, the writing or affidavit hereinafter provided for is not of record. [Contribution by co-owner — Payment of costs — Receipt to delinquent.] If such delinquent shall, within the ninety days required by section twenty-three hundred and twenty-four, aforesaid, contribute to his co-owner or co-owners, his pro- portion of such expenditures, and also all costs of service of the notice required by this section, whether incurred for publication charges, or otherwise, such co-owner or co- owners shall sign and deliver to the delinquent or delin- quents a writing, stating that the delinquent or delinquents by name has within the time required by section twenty- three hundred and twenty-four aforesaid, contributed his share for the year upon the mine, and further stating therein the district, county and state wherein the same is situated, and the book and page where the location notice is recorded, if said mine was located under the pro- visions of this act; [Receipt to co-owner to be recorded — Fees.] Such writ- ing shall be recorded in the office of the county recorder of 574 Tit.X.] RECORDING LOCATION. §§ 1426p, 1426q said county, for which he shall receive the same fees as are now allowed liy law for recording deeds. [Failure to give co-owner receipt — Penalty.] If such co- owner or co-owners shall fail to sign and deliver such writ- ing to the delinquent or delinquents within twenty days after such contribution, the co-owner or co-owners so fail- ing as aforesaid shall be liable to the penalty of one hun- dred dollars to be recovered by any person for the use of the delinquent or delinquents in any court of competent juris- diction. [Failure to give receipt — Affidavit of contribution.] If such co-owner or co-owners fail to deliver such writing with- in said twenty da3rs, the delinquent, with two disinterested persons having personal knowledge of such contribution, may inake affidavit setting forth in what manner, the amount of, to whom, and upon what mine, such contribution was made. Such affidavit, or a record thereof, in the office of the county recorder, of the county in which such mine is sit- uated, shall be prima facie evidence of such contribution. Hixtorj-: Enacted March 13, 1909, Stats, and Amdts. 1909, p. 316. § 1426p. RECORD OF LOCATION. EVIDENCE OF SAME FORCE AS ORIGINAL NOTICE. The record of any location of a mining claim, mill site or tunnel right, in the office of the county recorder, as herein provided shall be received in evidence, and have the same force and effect in the courts of the state as the original notice. HLstory: Enacted March 13, 1909, Stats, and Amdt-s. 1909, p. 317. § 1426q. RECORD OF INSTRUMENTS. CERTIFIED COPIES ADMISSIBLE AS EVIDENCE. Copies of the records of all instruments required to be recorded by the provisions of this act, duly certified by the recorder, in whose custody such records are, may be read in evidence, under 575 §§ 1426r, 1426s CIVIL CODE. [Div.II,Pt.IV. the same circumstances and rules as are now, or may be hereafter provided by law, for using copies of instruments relating to real estate, duly executed or acknowledged or proved and recorded. History: Enacted March 13, 1909, Stats, and Amdts. 1909, p. 317. § 1426r. MINING DISTRICT RULES AND REGULA- TIONS. NOT AFFECTED BY ACT. The provisions" of this act shall not in any manner be construed as affecting or abolishing any mining district or the rules and regula- tions thereof within the State of California. History: Enacted March 13. 1909, Stats, and Amdts. 1909, p. 317. § 1426s. DEVELOPMENT WORK. FAILURE OR NEGLECT TO PERFORM IN MANNER AND TIME REQUIRED. EFFECT OF. The failure or neglect of any locator of a mining claim to perform development work of the character, in the manner and within the time required by the laws of the United States, shall disqualify such lo- cators from relocatmg the ground embraced in the original location or mining claim or any part thereof under the min- ing laws, within three years after the date of his original location and any attempted re-location thereof by any of the original locators shall render such location void. [Repealing clause.] Sec. 2. All acts and parts of acts in conflict with this act, are hereby repealed. History: Enacted March 13, 1909, Stats, and Amdts. 1909, p. 317. 576 DIVISION THIRD. Part I. Obligations in General, §§ 1427-1543. II. Contracts, §§ 1549-1701. III. Obligations Imposed by Law, §§1708-1715. IV. Obligations Arising from Particular Transactions, §§ 1721-3268. PART I. OBLIGATIONS IN GENERAL. Title I. Definition of Obligations, §§ 1427-1428. II. Interpretation of Obligations, §§ 1429-1451. III. Transfer of Obligations, §§ 1457-1468. IV. Extinction of Obligations, §§ 1473-1543. 577 Tits. I, II.] OBLIGATIONS— HOW INCURRED. §§1427,1428 TITLE I. DEFINITION OF OBLIGATIONS. § 1427. Obligation, what. ■§ 1428. How incurred and enforced. § 1427. OBLIGATION, WHAT. An obligation is a legal duty, by which a person is bound to do or not to do a cer- tain thing. Hi-story: Enacted March 21, 1872. § 1428. HOW INCURRED AND ENFORCED. An ob- ligation arises either from: 1. The contract of the parties; or, 2. The operation of law. An obligation arising from operation of law may In- en- forced in the manner provided by law or by civil action or proceeding. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4. p. 239. TITLE II. INTERPRETATION OF OBLIGATIONS. Cliapter I. General Rules of Interpretation, § 1429. II. Joint or Several Obligations, §§ 1430-1432. III. Conditional Obligations, §§ 1434-1442. IV. Alternative Obligations, §§ 1448-1451. 579 §§ 1429-1431 CIVIL CODE. [Div.III,Pt.I. CHAPTER I. GENERAL, RULES OF INTERPRETATION. § 1429. General rules. § 1429. GENERAL RULES. The rules which govern the interpretation of contracts are prescribed by part two of this division. Other obligations are interpreted by the same rules by which statutes of a similar nature are interpreted. History: Enacted March 21, 1872. CHAPTER II. JOINT OR SEVERAL OBLIGATIONS. § 1430. Obligations, joint or several, etc. § 1431. When joint. § 1432. Contribution between joint parties. § 1430. OBLIGATIONS, JOINT OR SEVERAL, ETC. An obligation imposed upon several persons, or a right cre- ated in favor of several persons, may be: 1. Joint; 2. Several; or, 3. Joint and several. History: Enacted March 21, 1S72. § 1431. WHEN JOINT. An obligation imposed upon several persons, or a right created in favor of several per- sons, is presumed to be joint, and not several, except in the 580 Tit.II,ch.II.] CONTRIBUTION. § 1432 special cases mentioned in the title on the interpretation of contracts. This presumption, in the case of a right, cal■^ be overcome only by express words to the contrary. History: Enacted March 21, 1872. § 1432. CONTRIBUTION BETWEEN JOINT PAR- TIES. A party to a joint, or joint and several obligation, who satisfies more than his share of the claim against all, may require a proportionate contribution from all tlie parties joined with him. History: Enacted March 21, 1872. 581 §§ 1434-1438 CIVIL code. [Div.III,Pt.I. CHAPTER III. CONDITIONAL OBLIGATIONS. § 1434. Obligation, wlien conditional. § 1435. Conditions, kinds of. § 1436. Conditions precedent. § 1437. Conditions concurrent. § 1438. Conditions subsequent. § 1439. Performance, etc., of conditions, wlien essential. § 1440. When performance, etc., excused. § 1441. Impossible or unlawful conditions void. § 14 42. Conditions involving forfeiture, how construed. § 1434. OBLIGATION, WHEN CONDITIONAL. An obligation is conditional, when the rights or duties of any party thereto depend upon the occurrence of an uncertain event. Hi.story: Enacted March 21, 1872. § 1435. CONDITIONS, KINDS OF. Conditions may be precedent, concurrent or subsequent. History: Enacted March 21, 1872. § 1436. CONDITIONS PRECEDENT. A condition precedent is one which is to be performed before some right dependent thereon accrues, or some act dependent thereon is performed. History: Enacted March 21, 1S72. § 1437. CONDITIONS CONCURRENT. Conditions concurrent are those which are mutually dependent, and are to be performed at the same time. Hifstory: Enacted March 21, 1872. § 1438. CONDITION SUBSEQUENT. A condition sub- sequent is one referring to a future event, upon the happen- 582 Tit.II,ch.III.] PERFORMANCE— EXCUSED. §§1439-1442 ing of wliicli the obligation becomes no longer binding upon the other party, if he chooses to avail himself of the condi- tion. History: Enacted March 21, 1872. § 1439. PERFORMANCE, ETC., OF CONDITIONS, WHEN ESSENTIAL. Before any party to an obligation can require another party to perform any act under it, he must fulfil all conditions precedent thereto imposed upon himself; and must be able and ofifer to fulfil all conditions concurrent so imposed upon him on the like fulfilment by the other party, except as provided by the next section. History: Enacted March 21, 1872. § 1440. WHEN PERFORMANCE, ETC., EXCUSED. If a party to an obligation gives notice to another, before the latter is in default, that he will not perform the same upon his part, and does not retract such notice before the time at which performance upon his part is due, such otiier party is entitled to enforce the obligation without previously performing or offering to perform any conditions upon his part in favor of the former party. Hi-story: Enacted March 21, 1872. § 1441. IMPOSSIBLE OR UNLAWFUL CONDITIONS VOID. A condition in a contract, the fulfilment of which is impossible or unlawful, witliin tlie meaning of the article on the object of contracts, or wliich is repugnant to the na- ture of the interest created by the contract, is void. History: Enacted Marcli 21, 1872. § 1442. CONDITIONS INVOLVING FORFEITURE, HOW CONSTRUED. A condition involving a forfeiture must be strictly interpreted against the party for whose benefit it is created. History: Enacted March 21, 1872. 583 §§ 1448-1451 CIVIL CODE. [Div.III,Pt.I. CHAPTER IV. ALTERNATIVE OBLIGATIONS. § 144S. Who has the right of selection. § 1449. Right of selection, how lost. § 1450. Alternative indivisible. § 1451. Nullity of one or more of alternative obligations. § 1448. WHO HAS THE RIGHT OF SELECTION. If an obligation requires the performance of one of two acts, in the alternative, the party required to perform has the right of selection, unless it is otherwise provided by the terms of the obligation. History: Enacted March 21, 1872. § 1449. RIGHT OF SELECTION, HOW LOST. If the party having the right of selection between alternative acts does not give notice of his selection to the other party with- in the time, if any, fixed by the obligation for that purpose, or, if none is so fixed, before the time at which the obligation ought to be performed, the right of selection passes to the other party. History: Enacted March 21, 1S72. §1450. ALTERNATIVES INDIVISIBLE. The party having the right of selection between alternative acts must select one of them in its entirety, and cannot select part of one and part of another without the consent of the other party. History; Enacted March 21, 1872. 584 Tit.II.ch.IV.] NULLITY OF OBLIGATION. § 1451 § 1451. NULLITY OF ONE OR MORE OF ALTER- NATIVE OBLIGATIONS. If one of the alternative acts required by an obligation is such as the law will not enforce, or becomes unlawful or impossible of performance, the ob- ligation is to be interpreted as though the other stood alone. History: Enacted March 21, 1872. 585 §§1457-1459 CIVIL CODE. [Div.III,Pt.I. TITLE III. TRANSFER OF OBLIGATIONS. § 1457. Burden of obJigation not transferable. § 1458. Rights arising out of obligation transferable. §1459. Non-negotiable instruments may be transferred. § 1460. Covenants running with land^ what. § 1461. What covenants run with land. § 1462. Same. [Covenant for benefit of property.] § 1463. Same. [Covenants to pay rent, etc.] §1464. What covenants run ■with land when assigns are named. § 14 65. Wlio are bound by covenants. § 1466. Who are not. § 1467. Apportionment of covenants. § 146S. Transfer of obligations; covenants to run with land. § 1457. BURDEN OF OBLIGATION NOT TRANS- FERABLE. The burden of an obligation may be trans- ferred with the consent of the party entitled to its benefit, but not otherwise, except as provided by section fourteen hundred and sixty-six. History: Enacted March 21, 1872. § 1458. RIGHT ARISING OUT OF OBLIGATION TRANSFERABLE. A right arising out of an obligation is the property of the person to whom it is due and may be transferred as such. History: Enacted Marclr 21, 1872. § 1459. NON-NEGOTIABLE INSTRUMENTS MAY BE TRANSFERRED. A non-negotiable written contract for the payment of money or personal property may be transferred by indorsement, in like manner with negotiable instruments. Such indorsement shall transfer all the rights 586 Tit. III.] COVENANTS— WITH LAND. §§1460-1464 of the assignor under the instrument to the assignee, sub- ject to all equities and defenses existing in favor of the maker at the time of the indorsement. Historj-: Enacted March 21, 1S72. § 1460. COVENANTS RUNNING WITH LAND, WHAT. Certain covenants, contained in grants of estates in real property, are appurtenant to such estates, and pass with them, so as to bind the assigns of the covenantor and to vest in the assigns of the covenantee, in the same manner as if they had personally entered into tiiem. Such cove- nants are said to run with the land. History: Enacted March 21, 1872. § 1461. WHAT COVENANTS RUN WITH LAND. The only covenants which run with tlie land arc those specified in this title, and those which are incidental thereto. History: Enacted March 21, 1872. § 1462. SAME. [COVENANT FOR BENEFIT OF PROPERTY.] Every covenant contained in a grant of an estate in real property, which is made for the direct benefit of the property, or some part of it then in existence, runs with the land. History: Enacted March 21, 1872. § 1463. SAME. [COVENANTS TO PAY RENT, ETC.] The last section includes covenants "of warranty." "for quiet enjoyment," or for further assurance on the part of a grantor, and covenants for the payment of rent, or of taxes or as- sessments upon the land, on the part of the grantee. History: Enacted March 21, 1872. § 1464. WHAT COVENANTS RUN WITH LAND WHEN ASSIGNS ARE NAMED. A covenant for the ad- dition of some new thing to real property, or for the direct benefit of some part of the property not then in existence or 587 §§ 1465-1468 CIVIL CODE. [Div.III,Pt.I. annexed thereto, when contained in a grant of an estate in such property, and made by the covenantor expressly for his assigns or to the assigns of the covenantee, runs with land so far only as the assigns thus mentioned are concerned. History: Enacted March 21, 1872. § 1465. WHO ARE BOUND BY COVENANTS. A cov- enant running with the land binds those only who acquire the whole estate of the covenantor in some part of the property. History: Enacted March 21, 1872. § 1466. WHO ARE NOT. No one, merely by reason of having acquired an estate subject to a covenant running with the land, is liable for a breach of the covenant before he acquired the estate, or after he has parted with it or ceased to enjoy its benefits. History: Enacted March 21, 1872. § 1467. APPORTIONMENT OF COVENANTS. Where several persons, holding by several titles, are subject to the burden or entitled to the benefit of a covenant running with the land, it must be apportioned among them according to the value of the property subject to it held by them re- spectively, if such value can be ascertained, and if not, then accordipg to their respective interests in point of quantity. History: Enacted March 21, 1S72. § 1468. TRANSFER OF OBLIGATIONS; COVE- NANTS TO RUN WITH LAND. A covenant made by the owner of land with the owner of other land to do or re- frain from doing some act on his own land, which doing or refraining is expressed to be for the benefit of the land of the covenantee, and which is made by the covenantor ex- pressly for his assigns or to the assigns of the covenantee, runs with both of such parcels of land. History: Enacted March 21, 1905, Stats, and Amdts. 19u5, p. 610. 588 Tit.IV.ch.I.] PERFORMANCE EXTINGUISHES. §§ 1473^ I474 TITLE IV. EXTINCTION OF OBLIGATIONS. Chapter I. Performance, §§ 1473-1479. II. Offer of Performance, §§ 1485-1505. III. Prevention of Performance or Offer, §§ 1511- 1515. IV. Accord and Satisfaction, §§ 1521-1524. V. Novation, §§ 1530-1533. VI. Release, §§ 1541-1543. CHAPTER I. PERFORMANCE. 1473 1474 1475 1476 1477 1478 1479, Obligation extinguished by performance. Performance by one of several joint debtors. Performance to one of joint creditors. Effect of directions by creditors. Partial performance. Payment, what. Application of general performance. § 1473. OBLIGATION EXTINGUISHED BY PER- FORMANCE. Full performance of an obligation, by the party whose duty it is to perform it, or by any other per- son on his behalf, and with his assent, if accepted by the creditor, extinguishes it. History: Enacted Marcli 21, 1872; amended by Code Com- mission, Act April 16, 1901, Stats, and Amdts. 1900-1, p. 407, held unconstitutional, see history, § 4 ante. § 1474. PERFORMANCE BY ONE OF SEVERAL JOINT DEBTORS. Performance of an obligation, by one 589 §§1475-1478 CIVIL CODE. [Div.III.Pt.l. of several persons who are jointly liable under it, extin- guishes the liability of all. History: Enacted March 21, 1S7L". § 1475. PERFORMANCE TO ONE OF JOINT CRED- ITORS. An obligation in favor of several persons is ex- tinguished by performance rendered to any of them, except in the case of a deposit made by owners in common, or in joint ownership, which is regulated by the title on deposit. History: Enacted March 21, 1872. § 1476. EFFECT OF DIRECTIONS BY CREDITORS. If a creditor, or any one of two or more joint creditors, at any time directs the debtor to perform his obligation in a particular manner, the obligation is extinguished by per- formance in that manner, even though the creditor does not receive the benefit of such performance. History: Enacted March 21, 1S72. § 1477. PARTIAL PERFORMANCE. A partial per- formance of an indivisible obligation extinguishes a corre- sponding proportion thereof, if the benefit of such perform- ance is voluntarily retained by the creditor, but not other- wise. If such partial performance is of such a nature that the creditor cannot avoid retaining it without injuring his own property, his retention thereof is not presumed to be vol- untary. History: Enacted March 21, 1S72. § 1478. PAYMENT, WHAT. Performance of an obli- gation for the delivery of money only, is called payment. History: Enacted March 21, 1872. 590 Tit.IV,ch.I.] GENERAL PERFORMANCE. § 1479 § 1479. APPLICATION OF GENERAL PERFORM- ANCE. Where a debtor, under several obligations to an- other, does an act, by way of performance, in whole or in part, which is equally applicable to two or more of such ob- ligations, such performance must be applied as follows: 1. If, at the time of performance, the intention or desire of the debtor that such performance should be applied to the extinction of any particular obligation, be manifested to the creditor, it must be so applied. 2. If no such application be then made, the creditor, with- in a reasonable time after such performance, may apply it toward the extinction of any obligation, performance of which was due to him from the debtor at the time of such performance; except that if similar obligations were due to him both individually and as a trustee, he must, unless other- wise directed by the debtor, apply the performance to the extinction of all such obligations in equal proportion; and an application once made by the creditor cannot be rescinded without the consent of [the] debtor. 3. If neither party makes such application within the time prescribed herein, the performance must be applied to the extinction of obligations in the following order; and, if there be more than one obligation of a particular class, to the ex- tinction of all in that class, ratably: (1) Of interest due at the time of the performance. (2) Of principal due at that time. (3) Of the obligation earliest in date of maturity. (4) Of an obligation not secured by a lien or collateral undertaking. (5) Of an obligation secured by a lien or collateral un- dertaking. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, pp. 239, 240; amended by Code Commission, Act March Ifi, 1901, Stats, and Amdt.s. 1900-1, p. 407, held un- constitutional, see history, § 4 ante. 591 §§1485,1486 CIVIL CODE. [Div.III.Pt.I. CHAPTER II. OFFER OF PERFORMANCE. § 1485. Obligation extinguished by offer of performance. § 1486. Offer of partial performance. § 1487. By whom to be made. § 1488. To whom to be made. § 14S9. Wliere offer may be made. I 1490. When offer must be made. § 1491. Same. [When obligation does not fix time.] § 1492. Compensation after delay in performance. 1 1493. Offer to be made in good faith. § 1494. Conditional offer. § 1495. Ability and willingness essential. § 1496. Production of thing to be delivered rot necessary. § 1497. Thing offered to be kept separate. ^ 1498. Performance of condition precedent. § 1499. Written receipts. I 1500. Extinction of pecuniary obligation. § 1501. Objections to mode of offer. ? 1502. Title to thing offered. § 1503. Custody of thing offered. ^ 1604. Effect of offer on accessories of obligation. § 1505. Creditor's retention of thing which he refuses to ac- cept. § 1485. OBLIGATION EXTINGUISHED BY OFFER OF PERFORMANCE. An obligation is extinguished by an offer of performance, made in conformity to the rules herein prescribed, and with intent to extinguish the obligation. History: Enacted March 21, 1872. §1486. OFFER OF PARTIAL PERFORMANCE. An offer of partial performance is of no efTect. History: Enacted March 21, 1872. 592 Tit.IV,ch.ll.] OFP^ER— BY AND TO WHOM. §§1487-1490 § 1487. BY WHOM TO BE MADE. An oflfer of per- formance must be made by the debtor, or by some person on his behalf and with his assent. History: Enacted March 21, 1S72. § 1488. TO WHOM TO BE MADE. An offer of per- formance must be made to the creditor, or to any one of two or more joint creditors, or to a person authorized by one or more of them to receive or collect what is due under the obligation, if such creditor or authorized person is present at the place where the offer may be made; and if not, wherever the creditor may be found. History: Enacted March 21, 1872; amended March 30, 1874, Stats, and Amdts. 1873-4, p. 240. § 1489. WHERE OFFER MAY BE MADE. In the ab- sence of an express provision to the contrary, an ofifer of per- formance may be made, at the option of the debtor: 1. At any place appointed by the creditor; or, 2. Wherever the person to whom the offer ought to be made can be found; or, ' 3. If such person cannot, with reasonable diligence, be found within this state, and within a reasonable distance from his residence or place of business, or if he evades the debtor, then at his residence or place of business, if the same can, with reasonable diligence, be found within the state; or, 4. If this cannot be done, then at any place within this state. Historj-: Enacted March 21, 1872. § 1490. WHEN OFFER MUST BE MADE. Where an obligation fixes a time for its performance, an offer of per- formance must be made at that time, within reasonable hours, and not before nor afterwards. History: Enacted March 21, 1872. 593 §§1491-1495 CIVIL CODE. [Div.III.Pt.I. § 1491. SAME. [WHEN OBLIGATION DOES NOT FIX TIME.] Where an obligation does not fix the time for its performance, an offer of performance may be made at any time before the debtor, upon a reasonable demand, has refused to perform. Hi.«itory: Enacted March 21, 1872. § 1492. COMPENSATION AFTER DELAY IN PER- FORMANCE. Where delay in performance is capable of exact and entire compensation, and time has 'not been ex- pressly declared to be of the essence of the obligation, an offer of performance, accompanied with an offer of such compensation, may be made at any time after it is due, but without prejudice to any rights acquired by the creditor, or by any other persons, in the mean time. History: Enacted March 21, 1872. § 1493. OFFER TO BE MADE IN GOOD FAITH. An offer of performance must be made in good faith, and in such manner as is most likely, under the circumstances, to benefit the creditor. History: Enacted March 21, 1872. § 1494. CONDITIONAL OFFER. An offer of perform- ance must be free from any conditions which the creditor is not bound, on his part, to perform. History: Enacted March 21, 1872. § 1495. ABILITY AND WILLINGNESS ESSENTIAL. An offer of performance is of no effect if the person making it is not able and willing to perform according to the offer. History: Enacted March 21, 1872. 594 Tit.IV,ch.Il.] PRODUCTION FOR DELIVERY. §§ 1496-1501 § 1496. PRODUCTION OF THING TO BE DELIV- ERED NOT NECESSARY. The thing to be delivered, if any, need not in any case be actually produced, upon an ofifer of performance, unless the offer is accepted. History: Enacted March 21, 1S72. § 1497. THING OFFERED TO BE KEPT SEPARATE. A thing, when offered by way of performance, must not be mixed with other things from which it cannot be separated immediately and without difficulty. Hi-story: Enacted March 21, 1S72. § 1498. PERFORMANCE OF CONDITION PRECE- DENT. \\ hen a debtor is entitled to the performance of a condition precedent to, or concurrent with, performance on his part, he may make his ofifer to depend upon the due per- formance of such condition. History: Enacted March 21, 1S72. § 1499. WRITTEN RECEIPTS. A debtor has a right to require from his creditor a written receipt for any property delivered in performance of his obligation. Hi.story: Enacted March 21, 1872. §1500. EXTINCTION OF PECUNIARY .OBLIGA- TION. An obligation for the payment of money is extin- guished by a due offer of payment, if the amount is imme- diately deposited in the name of the creditor, with some bank of deposit within this state, of good repute, and no- tice thereof is given to the creditor. History: Enacted March 21, 1872. § 1501. OBJECTIONS TO MODE OF OFFER. All ob- jections to the mode of an offer of performance, which the 595 §§1502-1505 CIVIL CODE. [Div.III,Pt.I. creditor has an opportunity to state at the time to the per- son making the offer, and which could be then obviated by him, are waived by the creditor, if not then stated. History: Enacted March 21, 1872. § 1502. TITLE TO THING OFFERED. The title to a thing duly offered in performance of an obligation passes to the creditor, if the debtor at the time signifies his intention to that effect. HLstory: Enacted March 21, 1872. § 1503. CUSTODY OF THING OFFERED. The per- son offering a thing, other than money, by way of perform- ance, must, if he means to treat it as belonging to the cred- itor, retain it as a depositary for hire, until the creditor ac- cepts it, or until he has given reasonable notice to the cred- itor that he will retain it no longer, and, if with reasonable diligence he can find a suitable depositary therefor, until he has deposited it with such person. History: Enacted March 21, 1872. § 1504. EFFECT OF OFFER ON ACCESSORIES OF OBLIGATION. An offer of payment or other performance, duly made, though the title to the thing offered be not trans- ferred to the creditor, stops the running of interest on the obligation, and has the same effect upon all its incidents as a performance thereof. History: Enacted March 21, 1872. § 1505. CREDITOR'S RETENTION OF THING WHICH HE REFUSES TO ACCEPT. If anything is giv- en to a creditor by way of performance, which he refuses to accept as such, he is not bound to return it without de- mand; but if he retains it, he is a gratuitous depositary ' thereof. History: Enacted March 21, 1872. 596 Tit.IV.ch.III.] EXCUSING PERFORMANCE. §§1511,1212 CHAPTER III. PREVENTION OF PERFORMANCE OR OFFER. § 1511. What excuses performance, etc. § 1512. EfEect of prevention of i)erformance. § 1513. Same [repealed]. § 1514. Same. [Ratable portion of consideration, when.] § 1515. Effect of refusal to accept performance before offer. § 1511. WHAT EXCUSES PERFORMANCE, ETC. The want of performance of an obligation, or of an offer of per- formance, in whole or in part, or any delay therein, is ex- cused by the following causes, to fhe extent to which they operate: 1. When such performance or offer is prevented or delayed by the act of the creditor, or by the operation of law, even though there may have been a stipulation that this shall not be an excuse; 2. When it is prevented or delayed by an irresistible, super- human cause, or by the act of public enemies of this state or of the United States, unless the parties have expressly agreed to the contrary; or, 3. When the debtor is induced not to make it, by any act of the creditor intended or naturally tending to have that effect, done at or before the time at which such performance or offer may be made, and not rescinded before that time. History: Enacted March 21, 1872. § 1512. EFFECT OF PREVENTION OF PERFORM- ANCE. If the performance of an obligation be prevented by the creditor, the debtor is entitled to all the benefits which he would have obtained if it had been performed by both parties. Histoo': Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 240. 597 §§1513-1515 CIVIL CODE. [Div.III.Pt.I. § 1513. SAME [repealed]. History: Enacted March 21, 1S72; repealed March 30, 1874, Code Amdts. 1S73-4, p. 240. § 1514. SAME. [RATABLE PORTION OF CONSID- ERATION, WHEN.] If performance of an obligation is prevented by any cause excusing performance, other than the act of the creditor, the debtor is entitled to a ratable pro- portion of the consideration to which he would have been entitled upon full performance, according to the benefit which the creditor receives from the actual performance. History: Enacted March 21, 1872. § 1515. EFFECT OF REFUSAL TO ACCEPT PER- FORMANCE BEFORE OFFER. A refusal by a creditor to accept performance, made before an offer thereof, is equivalent to an offer and refusal, unless, before performance is actually due, he gives notice to the debtor of his willing- ness to accept it. History: Enacted March 21, 1872. 598 Tit.IV,ch.IV.] ACCORD AND SATISFACTION. §§ 1521-1524 CHAPTER IV. ACCORD AND SATISFACTION. § 1521. Accord, what. § 1522. Effect of accord. § 1523. Satisfaction, what. §1524. Part performance. § 1521. ACCORD, WHAT. An accord is an agreement to accept, in extinction of an obligation, something different from or less than that to which the person agreeing to ac- cept is entitled. History: Enacted March 21, 1872; amended March .lO, 1S74, Code Amdts. 1873-4, p. 240. § 1522. EFFECT OF ACCORD. Though the parties to an accord are bound to execute it, yet it does not extinguish the obligation tnitil it is fully executed. History: Enacted March 21, 1872. § 1523. SATISFACTION, WHAT. Acceptance, by the creditor, of the consideration of an accord extinguishes the obligation, and is called satisfaction. History: Enacted March 21, 1872. ' § 1524. PART PERFORMANCE. Tart performance of an obligation, either before or after a breach thereof, when expressly accepted by the creditor in writing, in satisfaction, or rendered in pursuance of an agreement in writing for that purpose, though without any new consideration, extinguishes the obligation. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 241. 599 §§1530-1533 CIVIL CODE. [Div.III,Pt.]. CHAPTER V. NOVATION. § 1530. Novation, what. ■§ 1531. Modes of novation. § 1532. Novation a contract. § 1533. Rescission of novation. § 1530. NOVATION, WHAT. Novation is the substitu- tion of a new^ obligation for an existing one. History: Enacted March 21, 1872. ( §1531. MODES OF NOVATION. Novation is made: 1. By the substitution of a new obligation between the same parties, with intent to extinguish the old obligation; 2. By the substitution of a new debtor in place of the old one, with intent to release the latter; or, 3. By the substitution of a new creditor in place of the old one, with intent to transfer the rights of the latter to the former. History: Enacted March 21, 1872. § 1532. NOVATION A CONTRACT. Novation is made by contract, and is subject to all the rules concerning con- tracts in general. History: Enacted March 21, 1872. § 1533. RESCISSION OF NOVATION. When the obli- gation of a third person, or an order upon such person, is accepted in satisfaction, the creditor may rescind such ac- ceptance if the debtor prevents such person from complying 600 Tit.IV.ch.V.] RESCISSION OF NOVATION. § I533 with the order, or from fulfilling the obligation; or if, at the time the obligation or order is received, such person is in- solvent, and this fact is unknow^n to the creditor, or if, before the creditor can with reasonable diligence present the order to the person upon whom it is given, he becomes insolvent. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 241. 601 §§1541-1543 CIVIL CODE. [Div.III.Pt.I. CHAPTER VI. RELEASE. § 1541. Obligation extingulsned by release. § 1542. Certain claims not affected by general release. § 1543. Release of [one of] several joint debtors. § 1541. OBLIGATION EXTINGUISHED BY RE- LEASE. An obligation is extinguished by a release there- from given to the debtor by the creditor, upon a new con- sideration, or in writing, with or without new consideration. History: Enacted March 21, 1872. § 1542. CERTAIN CLAIMS NOT AFFECTED BY GENERAL RELEASE. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settle- ment with the debtor. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 241. § 1543. RELEASE OF [ONE OF] SEVERAL JOINT DEBTORS. A release of one of two or more joint debtors does not extinguish the obligations of any of the others, un- less they are mere guarantors; nor does it affect their right to contribution from him. History: Enacted March 21, 1872. 602 Tit.I,ch.I.] CONTRACT— DEFINITION. § 1549 PART II. CONTRACTS. Title I. Nature of a Contract, §§ 1549-1615. 11. Manner of Creating Contracts, §§ 1619-1629. III. Interpretation of Contracts, §§ 1635-1661. IV. Unlawful Contracts, §§ 1667-1676. V. Extinction of Contracts, §§ 1682-1701. TITLE I. NATURE OF A CONTRACT. Chapter I. Definition, §§ 1549, 1550. II. Parties, §§ 1556-1559. III. Consent, §§ 1565-1589. IV. Object, §§ 1595-1599. V. Consideration, §§ 1605-1615. CHAPTER I. DEFINITION. § 1549. Contract, what. § 1550. Essential elements of contract. § 1549. CONTRACT, WHAT. A contract is an agree- ment to do or not to do a certain thing. History: Enacted March 21, 1872. 603 § 1550 CIVIL CODE. [Div.III.Pt.II. § 1550. ESSENTIAL ELEMENTS OF CONTRACT. It is essential to the existence of a contract that there should be: 1. Parties capable of contracting; 2. Their consent; 3. A lawful object; and, 4. A sufficient cause or consideration. History: Enacted March 21, 1S72. 604 Tit.I.ch.II.] WHO MAY CONTRACT. §§ 1556-1559 CHAPTER II. PARTIES. § 1556. Who may contract. § 1557. Minors, etc. § 1558. Identification of parties necessary. § 1559. When contract for benefit of third person may be en- forced. § 1556. WHO MAY CONTRACT. All persons are cap- able of contracting, except minors, persons of unsound mind, and persons deprived of civil rights. History: Enacted March 21, 1872. § 1557. MINORS, ETC. Minors and persons of unsound mind, have only such capacity as is defined by part one of division one of this code. History: Enacted March 21, 1872. § 1558. IDENTIFICATION OF PARTIES NECES- SARY. It is essential to the validity of a contract not only that the parties should exist, but that it should be possible to identify them. History: Enacted March 21, 1S72. § 1559. WHEN CONTRACT FOR BENEFIT OF THIRD PERSON MAY BE ENFORCED. A contract, made expressly for the benefit of a third person, may be en- forced by him at any time before tlic parties thereto rescind it. History: Enacted March 21, 1872. 605 §§1565,1566 CIVIL CODE. [Div.III,Pt.II. CHAPTER III. CONSENT. § 1565. Essentials of consent. § 1566. Consent, when voidable. § 1567. Apparent consent, when not free. § 1568. When deemed to have been obtained by fraud, etc. § 1569. Duress, what. § 1570. Menace, what. § 1571. Fraud, actual or constructive. § 1572. Actual fraud, what. § 1573. Constructive fraud. § 1574. Actual fraud a question of fact. § 1575. Undue influence^ what. § 1576. Mistalce, what. § 1577. Mistake of fact. § 1578. Mistake of law. § 1579. Mistake of foreign laws. § 1580. Mutuality of consent. § 1581. Communication of consent. § 1582. Mode of communicating' acceptance of proposal. § 1583. When communication deemed complete. § 1584. Acceptance by performance of conditions. § 1585. Acceptance must be absolute. § 1586. Revocation of proposal. § 1587. Revocation, how made. § 1588. Ralificatirn of contract, void for want of consent. § 1589. Assumption rf obligation by acceptance of benefits. § 1565. ESSENTIALS OF CONSENT. The consent of the parties to a contract must ber 1. Free; 2. Mutual; and, 3. Communicated by each to the other. HLstorj-: Enacted March 21. 1S72. § 1566.~CONSENT, WHEN VOIDABLE. A consent which is not free is nevertheless not absolutely void, but 606 Tit.I,ch.III.] CONSENT— FRAUD, DURESS. §§1567-1570 may be rescinded by the parties, in the manner prescribed by the chapter on rescission. HiiiJtorj-: Enacted March 21, 1872. § 1567. APPARENT CONSENT, WHEN NOT FREE. An apparent consent is not real or free when obtained through: 1. Duress; 2. Menace; 3. Fraud; 4. Undue influence; or, 5. Mistake. History: Enacted March 21, 1872. § 1568. WHEN DEEMED TO HAVE BEEN OB- TAINED BY FRAUD, ETC. Consent is deemed to have been obtained through one of the causes mentioned in the last section only when it would not have been given had such cause not existed. History: Enacted March 21, 1872. §1569. DURESS, WHAT. Duress consists in: 1. Unlawful confinement of the person of the party, or of the husband or wife of such party, or of an ancestor, de- scendant, or adopted child of such party, husband, or wife; 2. Unlawful detention of the property of any such person; or, 3. Confinement of such person, lawful in form, but fraud- ulently obtained, or fraudulently made unjustly harassing or oppressive. History: Enacted March 21, 1872. §1570. MENACE, WHAT. Menace consists in a threat: 1. Of such duress as is specified in subdivisions one and three of the last section; 607 §§1571-1573 CIVIL CODE. [Div.lII,Pt.II. 2. Of unlawful and violent injury to the person or prop- erty of any such person as is specified in the last section; or, 3. Of injury to the character of any such person. History: Enacted March 21, 1872. § 1571. FRAUD, ACTUAL OR CONSTRUCTIVE. Fraud is either actual or constructive. History: Enacted March 21, 1872. § 1572. ACTUAL FRAUD, WHAT. Actual fraud, within the meaning of this chapter, consists in any of the following acts, committed by a party to the contract, or with his con- nivance, with intent to deceive another party thereto, or to induce him to enter into the contract: 1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true; 2. The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true; 3. The suppression of that which is true, by one having knowledge or belief of the fact; 4. A promise made without any intention of performing it; or, 5. Any other act fitted to deceive. History: Enacted March 21, 1S72. § 1573. CONSTRUCTIVE FRAUD. Constructive fraud consists: 1. In any breach of duty which, without an actually fraud- ulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his preju- dice, or to the prejudice of any one claiming under him; or, 2. In any such act or omission as the law specially de- clares to be fraudulent, without respect to actual fraud. History: Enacted March 21, 1872. 608 Tit.I,ch.III.] UNDUE IXFLUEXCE— MISTAKE. §§1574-1578 § 1574. ACTUAL FRAUD A QUESTION OF FACT. Actual fraud is always a question of fact. History: Enacted March 21. 1872. § 1575. UNDUE INFLUENCE, WHAT. Undue influence consists: 1. In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining ?n unfair advantage over him; 2. In taking an unfair advantage of another's weakness of mind; or, 3. Tn taking a grosslj- oppressive and unfair advantage of another's necessities or distress. Hi.storj-: Enacted March 21, 1872. § 1576. MISTAKE, WHAT.. Mistake may be either of tact or iaw. History: Enacted March 21, 1872. § 1577. MISTAKE OF FACT. Mistake of fact is a mis- lake, not caused by the neglect of a legal duty on the part of the person making the mistake, and consisting in: 1. An unconscious ignorance or forgetfulness of a fact past or present, material to the contract; or, 2. Belief in the present existence of a thing material to the contract, which does not exist, or in the past existence of such a thing, which has not existed. History: Enacted March 21, 1872. § 1578. MISTAKE OF LAW. Mistake of law constitutes a mistake, within the meaning of this article, only when it arises from: 20 609 §§1579-1583 CIVIL CODE. [Div.lII.Pt.II. 1. A misapprehension of the law by all parties, all sup- posing that they knew and understood it, and all making sub- stantially 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 contracting, but which they do not rectifj-. History: Enacted March 21, 1S72. § 1579. MISTAKE OF FOREIGN LAWS. Mistake of foreign laws is a mistake of fact. History: Enacted March 21', 1872. § 1580. MUTUALITY OF CONSENT. Consent is not mutual, unless the parties all agree upon the same thing in the same sense. But in certain cases defined by the "chapter on interpretation, they are to be deemed so to agree without regard to the fact. Hi.story; Enacted March 21. 1S72. § 1581. COMMUNICATION OF CONSENT. Consent can be communicated with efifect, only by some act or omis- sion of the party contracting, by which he intends to com- municate it, or which necessarily tends to such communica- tion. Hi.story; Enacted March 21, 1872. § 1582. MODE OF COMMUNICATING ACCEPTANCE OF PROPOSAL. If a proposal prescribes any conditions concerning the communication of its acceptance, the pro- poser is not bound unless the}- are conformed to; but in other cases any reasonable and usual mode may be adopted. History: Ei^acted March 21. 1S72. \ § 1583. WHEN COMMUNICATION DEEMED COM- PLETE. Consent is deemed to be fully communicated be- 610 Tit. I, ch. III. 1 ACCEPTANCE— REVOCATION, ETC. §§1584-1587 tween the parties as soon as the party accepting a proposal has put his acceptance in the course of transmission to the proposer, in conformity to the last section. Hi.«*tory: Enuoted March 21, lcS72. § 1584. ACCEPTANCE BY PERFORMANCE OF CON- DITIONS. Performance of the conditions of a proposal, or the acceptance of the consideration offered with a proposal, is an acceptance of the proposal. Hi.story: Enacted March 21. 1S72. § 1585. ACCEPTANCE MUST BE ABSOLUTE. An ac- ceptance must be absolute and unqualified, or must include in itself an acceptance of that character which the proposer can separate from the rest, and which will conclude the person accepting. A qualified acceptance is a new pro- posal. History; Enacted Marcli 21. 1S72. § 1586. REVOCATION OF PROPOSAL. A proposal may be revoked at any time before its acceptance is com- municated to the proposer, but not afterwards. Hiistory: Enacted March 21, 1ST2. § 1587. REVOCATION, HOW MADE. A proposal is revoked: 1. By the communication of notice of revocation l)y the proposer to the other party, in the manner prescribed by sections fifteen hundred and eighty-one and fifteen hundred and eighty-three, before his acceptance has been com- municated 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 reasonal)le time without communication of the accept- ance; 611 §§1588,1589 CIVIL CODE. [Div.III,Pt.II. 3. By the failure of the acceptor to fulfil a condition precedent to acceptance; or, 4. By the death or insanity of the proposer. History: Enacted March 21, 1872. § 1588. RATIFICATION OF CONTRACT, VOID FOR WANT OF CONSENT. A contract which is voidable solely for want of due consent, may be ratified by a subsequent consent. Hi.story: Enacted March 21, 1S72. § 1589. ASSUMPTION OF OBLIGATION BY ACCEPT- ANCE OF BENEFITS. A voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it, so far as the facts are known, or ought to be known, to the person accepting. History: Enacted March 21, 1872. 612 Tit.I.ch.IV.] OBJECT AND REQUISITES. §§ 1595-1598 CHAPTER IV. OBJECT OF A CONTRACT. § 1595. Object, what. § 1596. Requisites of object. § 1597. Impossibility, M'hat. § 159S. "When contract wholly void. §1599. When contract partially void. • § 1595. OBJECT, WHAT. The object of a contract is the thing which it is agreed, on the part of the party re- ceiving the consideration, to do or not to do. History: Enacted March 21, 1S72. § 1596. REQUISITES OF OBJECT. The object of a contract must be lawful when the contract is made, and possible and ascertainable b}- the time the contract is to be performed. History: Enacted March 21, 187 2. § 1597. IMPOSSIBILITY, WHAT. Everything is deemed possible except that which is mipossible in tlie nature of things. Historj': Enacted March 21, 1872. . § 1598. WHEN CONTRACT WHOLLY VOID. Where a contract has but a single object, and such object is un- lawful, whether in whole or in part, or wholly impossible of performance, or so vaguely expressed as to be wholly unascertainablc, the entire contract is void. History: Enacted March 21, 1872. 613 §1599 CIVIL CODE. [Div.III.Pt.II. § 1599. WHEN CONTRACT PARTIALLY VOID. 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, tlie contract is void as to the latter and valid as to the rest. History: Enacted March 21, 1S72. 614 Tit.I.ch.V.] CONSIDERATION— LEGAL, MORAL. §§ 1505, 1606 CHAPTER V. CONSIDERATION. § 1605. Good consideration, what. § 1606. How far legal or moral obligation is a good considera- tiom § 1607. Consideration lawful. § 1608. Effect of its illegality. § 1609. Consideration executed or executory. § 1610. Executory consideration. § 1611. How ascertained. § 1612. Effect of impossibility of ascertaining consideration. § 1613. Same. [Possible of execution on face. J § 1614. Written instrument presumptive evidence of considera- tion. §1615. Burden of proof to invalidate suflficient consideration. § 1605. GOOD CONSIDERATION, WHAT. Any bene- fit conferred, or agreed to be conferred, upon the promisor, by any other person, to which thq promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, l)y such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise. History: Enacted March 21, IST2. § 1606. HOW FAR LEGAL OR MORAL OBLIGATION IS A GOOD CONSIDERATION. An existing legal obliga- tion resting upon the promisor, or a moral obligation origin- ating in some benefit conferred tipon the promisor, or prejudice suffered by the promisee, is also a good considera- tion for a promise, to an extent coresponding with the ex- tent of the obligation, Intt no further or otherwise. Hi.<4tory: Enacted March 21, 1872. 615 §§1607-1612 CIVIL CODE. • [Div.I]],Pt.II. § 1607. CONSIDERATION LAWFUL. The considera- tion of a contract must be lawful within the meaning of section sixteen hundred and sixty-seven. -History: Enacted March 21, 1872. § 1608. EFFECT OF ITS ILLEGALITY. If any part of a single consideration for one or more objects, or of several considerations for a single object, is unlawful, the entire contract is void. History: Enacted March 21, 1872. § 1609. CONSIDERATION EXECUTED OR EXECU- TORY. A consideration may be executed or executory, in whole or in part. In so far as it is executory it is subject to the provisions of chapter four of this title. History: Enacted March 21, 1872. §1610. EXECUTORY CONSIDERATION. When a consideration is executory, it is not indispensable that the contract should specify its amount or the means of ascertain- ing it. It may be left to the decision of a third person, or regulated by any specified standard. History: Enacted March 21, 1872. § 1611. HOW ASCERTAINED. When a contract does not determine the amount of the consideration, nor the method by which it is to be ascertained, or when it leaves the amount thereof to the discretion of an interested party, the consideration must be so much money as the object of the contract is reasonably worth. History: Enacted March 21, 1872. § 1612. EFFECT OF IMPOSSIBILITY OF ASCER- TAINING CONSIDERATION. Where a contract provides 616 Tit.I.ch.V.] POSSIBILITY OF EXECUTION. §§ 1613-1615 an exclusive method by which its consideration is to be ascertained, which method is on its face impossible of execu- tion, the entire contract is void. History: Enacted March 2], 1S72. § 1613. SAME. [POSSIBLE OF EXECUTION ON FACE.] Where a contract provides an exclusive method by which its consideration is to be ascertained, which method appears possible on its face, but in fact is, or becomes, im- possible of execution, such provision only is void. History: Enacted March 21, 1S72. § 1614. WRITTEN INSTRUMENT PRESUMPTIVE EVIDENCE OF CONSIDERATION. A written instru- ment is presumptive evidence of a consideration. History: Enacted March 21, 1872. § 1615. BURDEN OF PROOF TO INVALIDATE SUF- FICIENT CONSIDERATION. The burden of showing a want of consideration sufficient to support an instrument lies with the party seeking to invalidate or avoid it. History: Enacted March 21, 1872. Said to be "not quite clear" whetlier this section appli'-s to an illegal consideration, by Commissioner Vanclief in Graham vs. Lorimer, 83 Cal 173, 177, 23 Pac. Rep. 286. 617 §§1619-1622 CIVIL CODE. [Div.III,Pt.II. TITLE II. MANNER OF CREATING CONTRACTS. § 1619. Contracts, express or Implied. S 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 in writing. § 1625. Effect of written contracts. § 1626. Contract in writing, takes effect when. § 1627. Provisions of chapter on transfers of real property. § 162S. Corporate seal, how affixed. § 1629. Provisions abolishing seals made applicable. § 1619. CONTRACTS, EXPRESS OR IMPLIED. A contract is either express or implied. History: Enacted March 21, 1872. § 1620. EXPRESS CONTRACT, WHAT. An express contract is one, the terms of which are stated in words. History: Enacted March 21, 1872. § 1621. IMPLIED CONTRACT, WHAT. An implied contract is one, the existence and terms of which are mani- fested by condtict. History: Enacted March 21, 1872. § 1622. WHAT CONTRACTS MAY BE ORAL. All contracts maj' be oral, except such as are specially required by statute to be in writing. History: Enacted March 21. 1872. 618 Tit.II.] CONTRACTS IN WRITING— FRAUD. §§ 1623, 1624 § 1623. CONTRACT NOT IN WRITING THROUGH FRAUD, MAY BE ENFORCED AGAINST FRAUD- ULENT PARTY. Where a contract, which is required by law to be in writing, is prevented from being put into writ- ing l3y the fraud of a party thereto, any other party who is l)y such fraud led to believe thai it is in writing, and acts upon such belief to his prejudice, may enforce it against the fraudulent party. History: Enacted March 21, 1872. § 1624. WHAT CONTRACTS MUST BE IN WRITING. The following contracts are mvalid, unless the same, or some note or memorandum thereof, is^ in writing and sub- scribed by the party to be charged, or by his agent: 1. An agreement that by its terms is not to be performed within a year from the making thereof; 2. A special promise to answer for the debt, default, or miscarriage of another, except in the cases provided for in section twenty-seven hundred and ninety-four; 3. An agreement made upon consideration of marriage other than a mutual promise to marry; 4. An agreement for the sale of goods, chattels, or things in action, at a price not less than two hundred dollars, un- less the buyer accepts or receives part of such goods and chattels or the evidences, or some of them, of such things in action, or pays at the time some part of the purchase money; l)ut wlien a sale is made at auction, an entry by the auctioneer in his sale book, at the time of the sale, of the kind of property sold, the terms of the sale, the price, and the names of the purchaser and person on whose account the sale is made, is a sufficient memorandum; 5. An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein; and such agreement, if made by an agent of the 619 §§1625-1627 CIVIL CODE. [Div.III.Pt.lI. party sought to be charged, is invalid, unless the authority of the agent is in writing, subscribed by the party sought to be charged; 6. An agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or a commission; 7. An agreement which by its terms is not to be performed during the lifetime of the promisor, or an agreement to de- vise or bequeath any property, or to make an}- provision for any person by will. History: Enacted March 21, 1872; amended March 30, 1S74, Code Amdts. 1873-4, p. 241; March 9, 1878, Code Amdts. 1877-8, p. 86; by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 408, held unconstitutional, see history, § 4 ante; amendment re-enacted Marcli 21, 1905. Stats, and Amdts. 1905, p. 611. § 1625. EFFECT OF WRITTEN CONTRACTS, The ex- ecution of a contract in writing, whether the law requires it to be written or not, supersedes all the negotiations or stip- ulations concerning its matter which preceded or accom- panied the execution of the instrument. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 408, held unconstitutional, see history, § 4 ante; amendment re- enacted March 21, 1905, Stats, and Amdts. 1905, p. 611. § 1626. CONTRACT IN WRITING, TAKES EFFECT WHEN. A contract m writing takes effect upon its deliv- ery to the party in whose favor it is made, or to his agent. History: Enacted March 21, 1872. § 1627. PROVISIONS OF CHAPTER ON TRANSFERS OF REAL PROPERTY. The provisions of the chapter on transfers in general, concerning the delivery of grants, abso- lute and conditional, apply to all written contracts. History: Enacted Marclt 21, 1872. 620 Tit.II.] CORPORATE SEAL — PROVISION'S, ETC. §§ 1628, 1629 § 1628. CORPORATE SEAL, HOW AFFIXED. A cor- porate or official seal may be affixed to an instrument by a mere impression upon the paper or other material on which such instrument is, written. Hi.story: Enacted March 21, 1872. § 1629. PROVISIONS ABOLISHING SEALS MADE APPLICABLE. All distinctions between sealed and un- healed instruments are abolished. History: Enacted March 21, 1872. 621 §§1635,1636 CIVIL CODE. -Div.III.Pt.II. TITLE III. INTERPRETATION OF CONTRACTS. § 1635. Uniformity of interpretation. § 1636. Contracts, how to be interpreted. § 1637. Intention of parties, how ascertained. § 163S. Intention to be ascertained from language. § 1639. Interpretation of written contracts. § 1640. Writing, when disregarded. § 1641. Effect to be given to every part of contract. § 1642. Several contracts, when taken together. § 1643. Interpretation in favor of contract. § 1644. "Words to be understood in usual sense. § 1645. Technical words. § 1646. Law of place. § 1647. Contracts explained by circumstances. § 1648. Contract restricted to its evident object. § 1649. Interpretation in sense in which promisor believed proinisee to rely. § 1650. Particular clause subordinate to general intent. § 1651. Contract, partly written and partly printed. § 1652. Repugnancies, how reconciled. § 1653. Inconsistent words rejected. § 1654. Words to be taken most strongly against whom. § 1655. Reasonable stipulations, when implied. § 1656. Necessary incidents implied. § 1657. Time of performance of contract. § 1658. Time, when of essence [repealed]. § 1659. When joint and several. § 1660. Same. [In singular number.] § 1661. Executed and executory contracts, what. § 1635. UNIFORMITY OF INTERPRETATION. .Ml contracts, wlicthcr public or private, are to be interpreted by the same rules, except as ctherwise provided by this code. History: Enacted March 21, 1872. § 1636. CONTRACTS, HOW TO BE INTERPRETED. A contract nuisc be so interpreted as to give effect to the 622 Tit. 111.] INTENTION — INTERPRETATION. §§1637-1641 mutual intention of the parties as it existed at the time of contracting, so far as tlie same is ascertainable and lawful. History: Enacted March 21, 1872. § 1637. INTENTION OF PARTIES, HOW ASCER- TAINED. For the purpose of ascertaining the intention of the parties to a contract, if otherwise doubtful, the rules given in this chapter are to be applied. Hi-story: Enacted March 21, 1872. § 1635. INTENTION TO BE ASCERTAINED FROM LANGUAGE. The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity-. History: Enacted March 21, 1872. § 1639. INTERPRETATION OF WRITTEN CON- TRACTS. When a contract is reduced to writing, the in- tention of the parties is to be ascertained from the writing alone, if possible; subject, liowever, to the other provisions cf this title. History: Enacted March 21, 1872. § 1640. WRITING, WHEN DISREGARDED. When through fraud, mistake, or accident, a written contract fails to express the real intention of the parties, such intention is to be regarded, and the erroneous parts of the writing dis- regarded. History: Enacted March 21, 1872. § 1641. EFFECT TO BE GIVEN TO EVERY PART OF CONTRACT. The whole of a contract is to be taken togetiier, so as to give efifect to every part, if reasonably practicable, each clause helping to interpret the other. History: Enacted March 21, 1872. 623 §§1642-1646 CIVIL CODE. [Div.ITI.Pt.Il. § 1642. SEVERAL CONTRACTS, WHEN TAKEN TO- GETHER. Several contracts relating to the same matters, between the same parties, and made as parts of substantially one transaction, are to be taken together. History: Enacted March 21, 1S72. § 1643. INTERPRETATION IN FAVOR OF CON- TRACT. A contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and cap- able of being carried into effect, if it can be done without violating the mtention of the parties. History: Enacted March 21, 1S72. § 1644. WORDS TO BE UNDERSTOOD IN USUAL SENSE. The words of a contract are to be understood in their ordinary and popular sense, rather than accordmg tu I heir strict legal meaning; unless used by the parties in a technical sense, or unless a special meaning is given to them by usage, in which case the latter must be followed. History: Enacted March 21, 1S72. § 1645. TECHNICAL WORDS. Technical words are to be interpreted as usually understood by persons in the pro- fession or business to which they relate, unless clearly uSed in a different sense. History: Enacted March 21, 1S72. § 1646. LAW OF PLACE. A contract is to be interpreted according to the law and usage of the place where it is to be performed; or. if it does not indicate a place of performance, according to the law" and usage of the place where it is made. History: Enacted March 21, 1872. 624 Tit. III.] EXPLANATION— RESTFIICTION. §§ 1647-1651 § 1647. CONTRACTS EXPLAINED BY CIRCUM- STANCES. A contract may be explained by reference lo the circumstances under which it was made, and the matter to which it relates. History: Enacted March 21, 1X72. § 1648. CONTRACT RESTRICTED TO ITS EVIDENT OBJECT. However broad may be the terms of a contract, it extends only to those things concerning which it appears that the parties intended to contract. History: Enacted March 21, 1872. § 1649. INTERPRETATION IN SENSE IN WHICH PROMISOR BELIEVED PROMISEE TO RELY. If thr: terms of a promise are in any respect ambiguous or uncer- tain, it must be interpreted in the sense in which the promisor believed, at the time of making it. that the promisee under- stood it. Hi.story: Enacted March 21, 1872. § 1650. PARTICULAR CLAUSES SUBORDINATE TO GENERAL INTENT. Particular clauses of a contract are subordinate to its general intent. History: Enacted March 21, 1872. § 1651. CONTRACT, PARTLY WRITTEN AND PARTLY PRINTED. Where a contract is partly written and partly printed, or where part of it is written or printed under the special directions of the parties, and with a special view to their intention, and the remainder is copied from a form originally prepared without special reference to the particular parties and the particular contract in question, the written parts control the printed parts, and the parts which 625 §§1652-1655 CIVIL CODE. iDiv.IIl.Pt.II. are purely original control those which are copied from a form. And if the two are absolutely repugnant, the latter must be s© far disregarded. History: Enacted March 21, 1S72. § 1652. REPUGNANCIES, HOW RECONCILED. Re- pugnancy in a contract must be reconciled, if possible, by such an interpretation as will give some effect to the repugnant clauses, subordinate to the general intent and purpose of the whole contract. History: Enacted March 21, 1872. § 1653. INCONSISTENT WORDS REJECTED. Words in a contract which are wholly inconsistent with its nature, or with the main intention of the parties, arc to be rejected. History: Enacted March 21, 187 2. § 1654. WORDS TO BE TAKEN MOST STRONGLY AGAINST WHOM. In cases of uncertainty not removed by the preceding rules, the language of a contract should be interpreted most strongly against the party Vv-ho caused the uncertainty to exist. The promisor is presumed to be such party; except in a contract between a public officer or body, as such, and a private parly, in which it is presumed that all uncertainty was caused by the private party. Hifstory: Enacted March 21, 1872. § 1655. REASONABLE STIPULATIONS, WHEN IM- PLIED. Stipulations which are necessary to make a con- tract reasonable, or conformable to usage, are implied, in respect to matters concerning which the contract manifests no contrary intention. History: Enacted March 21, 1872. 626 Tit. III.] INCIDENTS— TIME— JOINT, ETC. §§ 1656-1661 § 1656. NECESSARY INCIDENTS IMPLIED. Ali things that in law or usage are considered as incidental to a contract, or as necessary to carry it into eflfect, are implied therefrom, unless some of them are expressly mentioned therein, when all other things of the same class are deemed to be excluded. Hitstory: Enacted March 21, 1S72. § 1657. TIME OF PERFORMANCE OF CONTRACT. If no time is specified for the performance of an act required to be performed, a reasonaijle time is allowed. If the act is in its nature capable of being done instantly — as, for ex- ample, if it consists in the payment of money only — it must be performed immediately upon the thing to be done being exactly ascertained. History: Enacted March 21, 1872. §1658. TIME, WHEN OF ESSENCE [repealed]. History: Enacted March 21, 1S72; repealed March •'50, 1S74, Code Amdts. 1S73-4, p. 242. § 1659. WHEN JOINT AND SEVERAL. Where all the parties who unite in a promise receive some benefit from the consideration, whether past or present, their promise is pre- sumed to be joint and several. History: Enacted March 21, 1872. § 1660. SAME. [IN SINGULAR NUMBER.] A prom- ise, made in the singular number, but executed by several persons, is presumed to be joint and several. Histor>-: Enacted March 21, 1872. § 1661. EXECUTED AND EXECUTORY CON- TRACTS, WHAT. An executed contract is one, the ob- ject of which is fully performed. All others are executory. History: Enacted March 21, 1872. 627 §§ 1667-1669 CIVIL CODE. [Div.III.Pt.II. § 1667 § 166S § 1669 § 1670 § 1671 § 1672 § 1673 § 1674 § 1675 § 1676 TITLE IV. UNLA^^FUL CONTRACTS. What is unlawful. Certain contracts unlawful. Penalties void [repealed]. Contract fixing damages, void. Exception. Restraints upon legal proceedings [repealed]. Contract in restraint of trade, void. Exception in favor of sale of good-will. Exception in favor of partnership arrangements. Contract in restraint of marriage, void. § 1667. WHAT IS UNLAWFUL. That is not lawful which is : 1. Contrary to an express provision of law; 2. Contrary to the policy of express law, though not ex- pressly prohibited; or, 3. Otherwise contrary to good morals. \ History: Enacted March 21, 1872. § 1668. CERTAIN CONTRACTS UNLAWFUL. AH contracts which have for their object, directly or indirectly, to exempt any one from responsibility for his own fraud, or wilful injury to the person or property of another, or viola- tion of law, whether wilful or negligent, are against the pol- icy of the law. History: Enacted March 21, 1872. §1669. PENALTIES VOID [repealed]. History: Enacted March 21, 1872; repealed March 30. 1874, Code Amdts. 1S73-4, p. 242. 628 Tit. IV.] FIXING DAMAGES — EXCEPTIONS. §§ 1670-1674 § 1670. CONTRACT FIXING DAMAGES, VOID, Ev- ery contract by which the amount of damage to be paid, or other compensation to be made, for a breach of an obligation, is determined in anticipation thereof, is to that extent void, except as expressly provided in the next section. HLstory: Enacted March 21, 1ST2. § 1671. EXCEPTION. The parties 1o a contract may agree therein upon an amount which shall be presumed to be the amount of damage sustained by a breach thereof, when, from the nature of the case, it would be impracticable or ex- tremely difficult to fix the actual damage. History: Enacted March 21, 1S72. § 1672. RESTRAINTS UPON LEGAL PROCEED- INGS [repealed]. History: Enacted March 21, 1872; repealed March 30, 1S74, Code Amdts. 1S73-4, p. 242. § 1673. CONTRACT IN RESTRAINT OF TRADE, VOID. Every contract by which any one is restrained from exercising a lawful profession, trade, or business of any kind, otherwise than is provided by the next two sections, is to that extent void. History: Enacted March 21, 1S72. § 1674. EXCEPTION IN FAVOR OF SALE OF GOOD- WILL. One who sells the good will of a business may agree with the buyer to refrain from carrying on a similar 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. History: Enacted March 21, 1S72. 629 §§1675,1676 CIVIL. CODE. fDiv.III,Pt.II. § 1675. EXCEPTION IN FAVOR OF PARTNERSHIP ARRANGEMENTS. Partners m&y, upon or in anticipation of a dissolution of the partnership, agree that none of them will carry on a similar business within the same city or town where the partnership business has been transacted, or with- in a specified part thereof. History: Enacted March 21, 1872. § 1676. CONTRACT IN RESTRAINT OF MARRIAGE, VOID. Every contract in restraint of the marriage of any person, other than a minor, is void. History: Enacted March 21, 1872. 630 Tit.V,chs.I,Il.] EXTINCTION— RESCISSION. §§ 1682, 1688 TITLE V. EXTINCTION OF CONTRACTS. Chapter I. Contracts, How Extinguished, § 1682. II. Rescission, §§ 1688-1691. III. Alteration and Cancelation, §§ 1697-1701. CHAPTER I. CONTRACTS, HOW EXTINGUISHED. § 1682. Contract, Jiow extinguished. § 1682. CONTRACT, HOW EXTINGUISHED. A con- tract may be extinguished in like manner with any other ob- ligation, and also in the manner prescribed by this title. Historj': Enacted March 21, 1872. CHAPTER II. RESCISSION. § 1688. Rescission extinguishes contract. § 1689. When party may rescind. § 1690. When stipulations against right to rescind do not de- feat it. § 1691. Rescission, how effected. §1688. RESCISSION EXTINGUISHES CONTRACT. A contract is extinguished by its rescission. History: Enacted March 21, 1872. 631 §§1689-1691 CIVIL CODE. [Div.III.Pt.II. § 1689. WHEN PARTY MAY RESCIND. A party to a contract may rescind the same in the following cases only. 1. If the consent of the party rescinding, or of any party jointly contracting with him, was given by mistake, or ob- tained through duress, menace, fraud, or undue influence, exercised by or with the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested with such party; 2. If, through the fault of the party as to whom he res- cinds, the consideration for his obligation fails, in whole or in part; 3. If such consideration becomes entirely void from any cause; 4. If such consideration, before it is rendered to him, fails in a* material respect, from any cause; or, 5. By consent of all the other parties. History: Enacted March 21, 1872. § 1690. WHEN STIPULATIONS AGAINST RIGHT TO RESCIND DO NOT DEFEAT IT. A stipulation that errors of description shall not avoid a contract, or shall be the subject of compensation, or both, does not take away the right of rescission for fraud, nor for mistake, where such mistake is in a matter essential to the inducement of the contract, and is not capable of exact and entire compensa- tion. • History: Enacted March 21, 1872. §1691. RESCISSION, HOW EFFECTED. Rescission, when not effected by consent, can be accomplished only by the use, on the part of the party rescinding, of reasonable diligence to comply with the following rules: 1. He must rescind promptly, upon discovering the facts which entitle him to rescind, if he is free from duress, men- ace, undue influence, or disability, and is aware of his right to rescind; and, 632 Tit.V,ch.II.] RESCTSSION^RESTORATION. § 1691 2. He must restore to the other party everything of value which he has received from him under the contract; or must ofifer to restore the same, upon condition that such party shall do likewise, unless the latter is unable or positively refuses to do so. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 40S, held unconstitutional, see history, § 4 ante. 633 §§1697-1700 CIVIL CODE. [Div.III,Pt.n. CHAPTER III. ALTERATION AND CANCELATION. § 1697. Alteration of verbal contract.?. § 1698. Written contracts, liow modified. § 1699. Extinction by cancelation, etc. § 1700. Extinction by unauthorized alteration. § 1701. Alteration of duplicate, not to prejudice. § 1697. ALTERATION OF VERBAL CONTRACTS. A contract not in writing may be altered in any respect by consent of the parties, in writing, without a new consid- eration, and is extinguished thereby to the e.xtent of the new- alteration. History: Enacted March 21, 1872; amended March 30. 1874, Code Amdts. 1873-4, p. 342. § 1698. WRITTEN CONTRACTS, HOW MODIFIED. A contract in writing may be altered by a contract in writ- ing, or by an executed oral agreement, and not otherwise. History: Enacted March 21, 1872; amended March 30. 1874, Code Amdts. 1873-4, p. 243. § 1699. EXTINCTION BY CANCELATION, ETC. The destruction or cancelation of a written contract, or of the signature of the parties liable thereon, with intent to ex- tinguish the obligation thereof, extinguishes it as to all the parties consenting to the act. History: Enacted March 21, 1872. § 1700. EXTINCTION BY UNAUTHORIZED ALTER- ATION. The intentional destruction, cancelation, or mate- rial alteration of a written contract, by a party entitled to 634 Tit.V,ch.III.] ALTERATION OF DUPLICATE. § 1701 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. History: Enacted March 21, 1S72. § 1701. ALTERATION OF DUPLICATE, NOT TO PREJUDICE. Where a contract is executed in duplicate, an alteration or destruction of one copy, while the other exists, is not within the provisions of the last section. History: Enacted March 21, 1872. 635 §§ 1708-1710 CIVIL CODE. [Div.III. PART III. OBLIGATIONS IMPOSED BY LAW. § 1708. Abstinence from injury. § 1709. Fraudulent deceit. § 1710. Deceit, what. S 1711. Deceit upon the public, etc. § 1712. Restoration of tiling wrongfully acquired. § 1713. When demand necessary. § 1714. Responsibility for wilful acts, negligence, etc. § 1715. Other obligations. § 1708. ABSTINENCE FROM INJURY. Every person is bound, without contract, to abstain from injuring the per- son or property of another, or infringing upon anj' of his rights. History: Enacted March 21, 1872. § 1709. FRAUDULENT DECEIT. One who wilfully de- ceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers. Hi.slory: Enacted March 21, 1872. § 1710. DECEIT, WHAT. A deceit, within the meaning of the last section, is either: 1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true; 2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true; 636 Pt.lIL] DECEIT ON PUBLIC — DEMAND. §§ 1711-1714 3. The suppression of a fact, by one who is bound to dis- close it, or who gives information of other facts which are likely to mislead for want of communication of that fact; or, 4. A promise, made without any intention of performing it. History: Enacted March 21, 1872. § 1711. DECEIT UPON THE PUBLIC, ETC. One who practices a deceit with intent to defraud the public, or a particular class of persons, is deemed to have intended to defraud every individual in that class, who is actually misled by the deceit. History: Enacted March 21, 1S72. § 1712. RESTORATION OF THING WRONGFULLY ACQUIRED. One who ol?tains a thing without the consent of its owner, or by a consent afterwards rescinded, or by an unlawful exaction which the owner could not at the time pru- dently refuse, must restore it to the person from whom it was thus obtained, unless he has acquired a title thereto su- perior to that of such other person, or unless the transac- tion was corrupt and unlawful on both sides. History: Enacted March 21, 1872. § 1713. WHEN DEMAND NECESSARY. The restora- tion re(|uired by the last section must be made, without de- mand, except where a thing is obtained by mutual mistake, in which case the party obtaining the thing is not bound to return it until he has notice of the mistake. Hi.*ttory: Enacted March 21, 1872. § 1714. RESPONSIBILITY FOR WILFUL ACTS, NEGLIGENCE, ETC. Every one is responsible, not only for the result of his wilful acts, but also for an injury occa- sioned to another by his want of ordinary care or skill in 637 § 1715 CIVIL CODE. [Div.III. the management of his property or person, except so far as the latter has, wilfully or by want of ordinary care, brought the injury upon himself. The extent of liability in such cases is defined by the title on compensatory relief. History: Enacted March 21, 1872. § 1715. OTHER OBLIGATIONS. Other obligations are prescribed by divisions one and two of this code. History; Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 409, held unconstitutional, see history, § 4 ante. 638 Tit.l.] OBLIGATIONS— SALE. § 1721 PART IV. OBLIGATIONS ARISING FROM PARTICULAR TRANSACTION'S 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. SALE. 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. 639 §§1721,1722 CIVIL CODE. [T)iv.III,Pt.IV. CHAPTER I. GENERAL PROVISIONS Article I. Sale, §§ 1721, 1722. II. Agreement for Sale, §§ 1726-1734. III. Form of the Contract, §§1739-1741. ARTICLE I. SALE. § 1721. Sale, what. § 1722. Subject of sale. § 1721. SALE, WHAT. Sale is a contract by which, for a pecuniary consideration, called a price, one transfers to another an interest in propert}'. History: Enacted March 21, 1872. § 1722. SUBJECT OF SALE. The subject of sale must be propert}-, the title to which can be immediatel)' trans- ferred from the seller to the buyer. History: Enacted March 21, 1S72. 640 Tit.I.ch.I.art.lI.] agreement FOR SALE. §§ 1726-1729 ARTICLE II. AGREEMENT FOR SALE. 1726. Agreement loi- sale. 1727. Agreement to sell. 172S. Agreement to buy. 1729. Agreement to sell and buy. 1730. What maj' be the subject of the contract. 1731. Agreement to sell real property. 1732. Form of grant required by such contract [repealed]. 1733. Usual common-law covenants required by such con- tracts, when. 1734. Form of such covenants. § 1726. AGREEMENT FOR SALE. An agreement for sale is either: 1. An agreement to sell; 2. An agreement to buj^; or, 3. A mutual agreement to sell and buy. History: Enacted March 21, 1872. § 1727. AGREEMENT TO SELL. An agreement to sell is a contract by which one engages, for a price, to trans- fer to another the title to a certain thing. Hi.story: Enacted March 21, 1S72. § 1728. AGREEMENT TO BUY. An agreement to buy is a contract by which one engages to accept from another, and pay a price for the title to a certain thing. History: Enacted March 21, 1872. » § 1729. AGREEMENT TO SELL AND BUY. An agree- ment to sell and buy is a contract by which one engages to 21 641 §S 1730-1734 nvTT. 0(»r)K. | Div.I I I.Pt.IV. transfer the title to a certain thing to another, who engages to accept the same from him and to pay a price therefor. Ili.story: Enacted Marcli I'l, 1S72. § 1730. WHAT MAY BE THE SUBJECT OF THE CONTRACT. 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. History: Enacted March 21. 1S72. § 1731. AGREEMENT TO SELL REAL PROPERTY. An agreement to sell real property binds the seller to exe- cute a conveyance in form sufficient to pass the title to the property. History: Enacted March 21, 1872; amended March 30, 1S74, Code Amdts. lS7.'5-4. p. 243. § 1732. FORM OF GRANT REQUIRED BY SUCH CONTRACT 1 repealed]. History: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1S73-4, p. 24 3. § 1733. USUAL COMMON-LAW COVENANTS RE- QUIRED BY SUCH CONTRACTS, WHEN. An agree- ment on the part of a seller of real property to give the usual covenants, binds him to insert in the grant covenants of "seizin," "quiet enjoyment," "further assurance." "general warranty," and "against encumbrances." History: Enacted March 21, 1872. § 1734. FORM OF SUCH COVENANTS. The cove- nants mentioned in the last section must be in substance as follows: "The party of the first part covenants with the party of the second part, that the former is now seized in 642 Tit.I.ch.I.art.II.] FORM OF COVENANTS. § 1734 fee simple of the property granted; that the latter shall en- joy the same without any lawful disturbance; that the same is free from all encumbrances; that the party of the first part, and all persons acquiring anj' interest in the same through or for him, will, on demand, execute and deliver to the party of the second part, at the expense of the latter, any further assurance of the same that may be reasonably required; and that the party of the first part will warrant to the party of the second part all the said property against every person lawfully claiming the same." History: Enacted March 21, 1S72. 643 §§ 1739-1741 CIVIL CODE. [Div.III,Pt.IV. ARTICLE III. FORM OF THE CONTRACT. § 17.19. Contract for sale of personal property. § 1740. Contract to manufacture. ^ 1741. Contract for sale of real property. § 1739. CONTRACT TO SELL PERSONAL PROP- ERTY. No sale of personal property, or agreement to buy or sell it for a price of two hundred dollars or more, is valid, unless: 1. The agreement or some note or memorandum thereof be in writing, and subscribed by the party to be charged, or by his agent; or, 2. The buyer accepts and receives part of the thing sold, or when it consists of a thing in action, part of the evi- dences thereof, or some of them; or, 3. The buyer, at the time of sale, pays a part of the price. History: Enacted March 21, 1872; amendud March SO, 1874, Code Amdts. 1873-4, p. 243. § 1740. CONTRACT TO MANUFACTURE. An agree- ment to manufacture a thing, from materials furnished by the manufacturer, or by another person, is not within the provisions of the last section. Hl.story: Enacted March 21, 1872. § 1741. CONTRACT FOR SALE OF REAL PROPER- TY. No agreement for the sale of real property, or of an interest therein, is valid, unless the same, or some note or 644 Tit.I,ch.I,art.III.] CONTRACT FOR SALE. § 1741 memorandum thereof, be in writing, and subscribed by the party to be charged,^ or his agent, thereunto authorized, in writing; but this does not abridge the power of any court to compel the specific performance of any agreement for the sale of real property in case of part performance thereof. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, pp. 243, 244. 645 §§1748,1749 CIVIL CODE. [Div.III.Pt.U'. 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 AXD DUTIES BEFORE DELIVERY. § 174S. When seller must act as depositary. § 1749. When seller may resell. § 1748. WHEN SELLER MUST ACT AS DEPOSI- TARY. After personal property has been sold, and until the delivery is completed, the seller has the rights and obliga- tions of a depositary' for hire, except that he must keep the property, without charge, until the buyer has had a reason- able opportunity to remove it. History: Enacted March 21, 1872. §1749. WHEN SELLER MAY RESELL. If a buyer of personal property- does not pay for it according to con- tract, and it remains in the possession of the seller after pay- ment is due, the seller may rescind the sale, or may enforce his lien for the price, in the manner prescribed by the title on liens. IllNtory: Enacted March 21. 1,S72. 646 Tit.T,ch.TI,art.II.] DELIVERY. §§1753-1756 ARTICLE II. DELIVERY. § 1753. Delivery on demand. § 17.54. Delivery, where made. § 1755. Expense of transportation. § 1756. Notice of election as to delivery. § 1757. Buyer's directions as to manner of sending thing .sold. §1758. Delivery to be within reasonable hours. § 1753. DELIVERY ON DEMAND. One who sells per- sonal property, whether it was in his possession at the time of sale or not, must put it into a condition fit for delivery, and deliver it to the liuyer within a reasonable time after de- mand, tmless he has a lien thereon. Hi.story: Enacted March 21, 1872. § 1754. DELIVERY, WHERE MADE. Personal prop- erty sold is deliverable at the place where it is at the time of the sale or agreement to sell, or if it is not then in exist- ence, it is deliverable at the place where it is prodticed. History: Enacted March 21. 1872. § 1755. EXPENSE OF TRANSPORTATION. One who sells personal property must bring it to his own door, or other convenient place, for its acceptance by the buyer, but further transportation is at the risk and expense of the buyer. History: Enacted March 21, 1872. § 1756. NOTICE OF ELECTION AS TO DELIVERY. When either party to a contract of sale lias an option as to the time, place, or manner of delivery, lie must give the other 647 §§1757,1758 CIVIL CODE. [Div.III.Pt.IV. party reasonable notice of his choice; and if he does not give such notice within a reasonable time, his right of option is waived. HLstory: Enacted March 21, 1872. §1757. BUYER'S DIRECTIONS AS TO MANNER OF SENDING THING SOLD. If a seller agrees to send the thing sold to the buyer, he must follow the directions of the latter as to the manner of sending, or it will be at his own risk during its transportation. If he follows such directions, or if, in the absence of special directions, he uses ordinary care in forwarding the thing, it is at the risk of the buyer. History: Enacted March 21, 1872. § 1758. DELIVERY TO BE WITHIN REASONABLE HOURS. The delivery of a thing sold can be oflfered or de- manded only within reasonable hours of the day. History: Enacted March 21, 1872. 648 Tit.I,ch.II,art.III.] WARRANTY— IMPLIED. §§1763-1765 ARTICLE III. WARRANTY. § 1763. Warranty, what. § 1764. No impliod warranty in mere contract of sale. § 1765. Warranty of title to personal property. § 1766. Warranty on sale by sample. § 1767. When seller knows that buyer relies on his statements, etc. §1768. Merchandise not in existence. § 1769. Manufacturer's warranty against latent defects. § 1770. Thing bought for particular purpose. ,§1771. When thing cannot be examined by buyer. § 1772. Trade-marks. § 1773. Other marks. § 1774. Warranty on sale of written instrument. § 1773. Warranty of provisions for domestic use. § 1776. Warranty on sale of good-will. ■§ 1777. Warranty upon judicial sale. §1778. Effect of general warranty. § 1763. WARRANTY, WHAT. A warranty is an en- gagement by which a seller assures to a buyer the existence of some fact affecting the transaction, whether past, present, or future. History: Enacted March 21, 1872. § 1764. NO IMPLIED WARRANTY IN MERE CON- TRACT OF SALE. Except as prescribed by this article, a mere contract of sale or agreement to sell does not imply a warranty. History: Enacted March 21, 1872. § 1765. WARRANTY OF TITLE TO PERSONAL PROPERTY. One who sells or agrees to sell personal 649 §§1706-1769 CIVIL CODE. [Div.III.Pt.lV. propertj', as his own, thereby warrants that he has a good and unencumbered title thereto. History: Enacted March 21, 1872. § 1766. WARRANTY ON SALE BY SAMPLE. One who sells or agrees to sell goods by sample, thereby war- rants the hulk to be equal to the sample. Hi.-slory: Enacted March 21, 1872. § 1767. WHEN SELLER KNOWS THAT BUYER RE- LIES ON HIS STATEMENTS, ETC. One who sells or agrees to sell personal property, knowing that the buyer re- lies upon his advice or judgment, thereby warrants to the buyer that neither the seller, nor any agent employed by him in the transaction, knows the existence of any fact con- cerning the thing sold which would, to his knowledge, de- stroy the buyer's inducement to buy. History: Enacted March 21, 1872. § 1768. MERCHANDISE NOT IN EXISTENCE. One who agrees to sell merchandise not then in existence, there- by warrants that it shall be sound and merchantable at the place of production contemplated by the parties, and as near- ly so, at the place of delivery, as can be secured by reason- able care. Histor?-: Enacted March 21, 1872. §1769. MANUFACTURER'S WARRANTY AGAINST LATENT DEFECTS. One who sells or agrees to sell an article of his own manufacture thereby warrants it to be free from any latent defect, not disclosed to the buyer, aris- ing from the process of manufacture, and also that neither he nor his agent in such manufacture has knowingly used improper materials therein. Hi.story: Enacted March 21, 1872. 6S0 Tit.l.cli.n.art.TTT.l KXAMtnattON— MARKS. §§ 1770-1774 § 1770. THING BOUGHT FOR PARTICULAR PUR- POSE. One who manufactures an article under an order for a particular purpose, warrants by the sale that it is rea- sonably fit for that purpose. History: Enacted March 21, 1872. § 1771. WHEN THING CANNOT BE EXAMINED BY BUYER. One who sells or agrees to sell merchandise in- accessil)le to the examination of the buyer, thereby warrants that it is sound and merchantable. History: Enacted March 21, 1872. § 1772. TRADE-MARKS. One who sells or agrees to sell any article to which there is affi?ced or attached a trade- mark, thereby warrants that mark to be genuine and law- fully used. History: Enacted March 21, 1872. § 1773. OTHER MARKS. One who sells or agrees to sell any article 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, manu- factured, or prepared, thereby warrants the truth thereof. History: Enacted March 21, 1872. §1774. WARRANTY ON SALE OF WRITTEN IN- STRUMENT. One who sells or agrees to sell an instru- ment purporting to bind any one to the performance of an act, thereby warrants that he has no knowledge of any facts which tend to prove it worthless, such as the insolvency of any of the parties thereto, where that is material, the ex- tinction of its obligations, or its invalidity for any cause. History: Enacted March 21, 1872; amended March ?.0, 1S74, Code Amdts. 1873-4, p. 244. 651 §§1775-1778 CIVIL CODE. [Div.III,Pt.IV. Originally this section contained a further provision, whicli was stricken out in 1874, that seller warrants instrument to be what it purports to be and fo be binding according to its purport upon all parties thereto. — Kendall vs. Parker, 103 Cal. 319, 324, 42 Am. St. Rep. 117, 37 Pac. Rep. 401. § 1775. WARRANTY OF PROVISIONS FOR DOMES- TIC USE. One who makes a business of selling provisions for domestic use warrants by a sale thereof, to one who buys for actual consumption, that they are sound and whole- some. History: Enacted March 21, 1872. §1776. WARRANTY ON SALE OF GOOD-WILL. One who sells the good-will of a business thereby warrants that he will not endeavyr to draw off any of the customers. History: Enacted March 21. 1872. § 1777. WARRANTY UPON JUDICIAL SALE. Upon a judicial sale, the only warranty implied is that the seller does not know that the sale will not pass a good title to the property. History: Enacted March 21, 1872. § 1778. EFFECT OF GENERAL WARRANTY. A gen- eral warranty does not extend to defects inconsistent there- with of which the buyer was then aware, or which were then easily discernible by him without the exercise of peculiar skill; but it extends to all other defects. History: Enacted March 21, 1872. 652 Tit.I,ch.III.] PRICE AND INSPECTION. §§1784-1786 CHAPTER III. RIGHTS AND OBLIGATIONS OF THE BUYER. § 17S4. Price, when to be paid. § 1785. Right to inspect goods. § 1786. Rights in case of breacli of warranty. , § 1784. PRICE, WHEN TO BE PAID. A buyer must pay the price of the thing sold on its delivery, and must take it away within a reasonable time after the seller offers to deliver it. History: Enacted March 21, 1872. § 1785. RIGHT TO INSPECT GOODS. On an agree- ment for sale, with warranty, the buyer has a right to inspect the thing sold, at a reasonable time, before accepting it; and may rescind the contract if the seller refuses to permit him to do so. History: Enacted March 21, 1872. § 1786. RIGHTS IN CASE OF BREACH OF WAR- RANTY. The breach of a warranty entitles the buyer to rescind an agreement for sale, but not an executed sale, un- less the warranty was intended by the parties to operate as a condition. HLstory: Enacted March 21, 1872. 653 §§1702-1795 niViL conE. fDiv.I Il.Pt.lV CHAPTER IV. SALE BY AUCTION. § 1792. Sale by auction, what. § 179.3. Sale, when complete. § 1794. Withdrawal of bid. § 179.5. Sale under written conditions. § 1796. Rights of buyer, upon sale without reserve. § 1797. By bidding. § 179S. Auctioneer's memorandum of sale. § 1792. SALE BY AUCTION, WHAT. A sale by auc- tion is a sale by public outcry to the highest bidder on the spot. History: Enacted March 21. 1872. § 1793. SALE, WHEN COMPLETE. A sale by auction is complete when the auctioneer publicly announces, by the fall of his hammer, or in any other customary manner, that the thing is sold. History: Enacted March 21, 1872. § 1794. WITHDRAWAL OF BID. Until the announce- ment mentioned in the last section has been made, any bid- der may withdraw his bid. if he does so in a manner reason- ably sufficient to bring it to the notice of the auctioneer. History: Enacted March 21. 1872. § 1795. SALE UNDER WRITTEN CONDITIONS. When a sale by auction is made upon written or printed con- ditions, such conditions cannot be modified by any oral dec- laration of the auctioneer, except so far as they are for his own benefit. HLstory: Enacted March 21, 1872. 654 Tit.I.ch.IV.] BUYER WITHOUT SALE. §§1796-1798 § 1796. RIGHTS OF BUYER UPON SALE WITHOUT RESERVE. If, at a sale by auction, the auctioneer, having authorit)' to do so. publicly announces that the sale will be without reserve, or makes any announcement equivalent thereto, the highest bidder in good faith has an absolute right to the completion of tlie sale to him; and, upon such a sale, bids by the seller, or any agent for him. are void. Hi.story: Enacted March 21. 1872. § 1797. BY BIDDING. The employment by a seller of any person to bid at a sale by auction, without the knowl- edge of the buyer, without an intention on the part of such bidder to buy, and on the part of the seller to enforce his bid, is a fraud upon the buyer, which entitles him to rescind his purchase. History : Enacted Marcli 21, 1872. § 1798. AUCTIONEER'S MEMORANDUM OF SALE. When property is sold Ijy auction, an entry made by the auctioneer, in his sale book, at the time of the sale, specify- ing the name of the person for whom he sells, the thing sold, the price, the terms of sale, and the name of the buyer, binds both the parties in the same manner as if made by themselves. HiMtory: Enacted March 21, ISl'.i; amended March 30, 1874, Code Amdts. 1873-4, p. 244. 655 §§1804-1807 CIVIL CODE. [Div.III.Pt.IV. TITLE II. EXCHANGE. § 1804. Exchange, what. § 1805. Form of contract. § 1806. Parties have rights and obligations of sellers and buyers. § ISO". Warranty of money. § 1804. EXCHANGE, WHAT. Exchange is a contract by which the parties mutually give, or agree to give, one thing for another, neither thing, or both things, being money only. History: Enacted March 21, 1872. § 1805. FORM OF CONTRACT. The provisions of sec- tion seventeen hundred and thirty-nine apply to all e.x- changes in which the value of the thing to be given bj- either party is two hundred dollars or more. History; Enacted March 21, 1S72. §1806. PARTIES HAVE RIGHTS AND OBLIGA- TIONS OF SELLERS AND BUYERS. The provisions of the title on sale apply to exchanges. Each party has the rights and obligations of a seller as to the thing which he gives, and of a buyer as to that which he takes. History: Enacted March 21, 1872. § 1807. WARRANTY OF MONEY. On an exchange of money, each part}^ thereby warrants the genuineness of the money given by him. History: Enacted March 21, 1872. 656 Tit.III,ch.l,art.I.] KINDS OF DEPOSITS. §§1813,1814 TITLE III. DEPOSIT. Chapter I. Deposit in General, §§ 1813-1828. II. Deposit for Keeping, §§1833-1872. III. Deposit for Exchange, §1878. CHAPTER I. DEPOSIT IN GENERAL Article I. Nature and Creation of Deposit, §§ 1813-1818. II. Obligations of the Depositary, §§ 1822-1828. ARTICLE I. NATURE AND CREATION OF DEPOSIT. § 1813. Deposit, kinds of. § 1814. Voluntary deposit, how made. § 1815. Involuntary deposit, how made. S 1816. Same. [Duty of involuntary depositary.] § 1817. Deposit for safe keeping, what. § 1818. Deposit for exchange, what. §1813. DEPOSIT, KINDS OF. A deposit may be vol- untary or involuntary; and for safe-keeping or for exchange. History: Enacted March 21, 1872. § 1814. VOLUNTARY DEPOSIT, HOW MADE. A voluntary deposit is made by one giving to another, with 657 §§1815-1818 CIVIL CODE. [Div.III,Pt.lV. his consent, the possession of personal property to keep for the benefit of the former, or of a third party. The person giving is called the depositor, and the person receiving the depositary. Hi.<*liir.v: Enacted March 21, ISTli. § 1815. INVOLUNTARY DEPOSIT, HOW MADE. An involuntary deposit is made: 1. By the accidental leaving or placing of personal prop- erty in the possession of any person, without negligence on the part of its owner; or. 2. In cases of fire, shipwreck, inundation, insurrection, riot, or like extraordinary emergencies, by the owner of personal property committing it, out of necessity, to the care of anj' person. Hi.story: Enacted March 21, 1S72. § 1816. SAME. [DUTY OF INVOLUNTARY DE- POSITARY.] The person with whom a thing is deposited in the manner described in the last section is bound to take charge of it, if able to do so. HLstory: Enacted March 21, 1ST2. §1817. DEPOSIT FOR SAFE KEEPING, WHAT. A deposit for keeping is one in which the depositary is bound to return the identical thing deposited. History: Enacted March 21, 1ST2. § 1818. DEPOSIT FOR EXCHANGE, WHAT. A de- posit for exchange is one in which the depositary is only bound to return a thing corresponding in kind to that which is deposited. Hislory: Enacted March 21, 1S72. 658 Til.nT,c]l.T,art.lI.l nEI.TVERY ON DEMAND. §§1822-1825 § 1822 § 1823 § 1824 § 1825 § 1826 § 1827 § 1828 ARTICLE II. OBLIGATIONS OF THE DEPOSITARY. Depositary must deliver on demand. No obligation to deliver without demand. Place of delivery. Notice to owner of adverse claim. Notice to owner of thing wrongfully detained. Delivery of thing owned jointly, etc. Joint deposits by two or more persons. §1822. DEPOSITARY MUST DELIVER ON DE- MAND. A depositary must deliver the thing to the person for whose benefit it was deposited, on demand, whether the deposit was made for a specified time or not, unless he has a lien upon the thing deposited, or has been forbidden or prevented from doing so by the real owner thereof, or by the act of the law, and has given the notice required by sec- tion eighteen hundred and twenty-five. History: Enacted March 21, 1872. § 1823. NO OBLIGATION TO DELIVER WITHOUT DEMAND. A depositary is not bound to deliver a thing- deposited without demand, even where the deposit is made for a specified time. Hl.story: Enacted March 21, 1872. § 1824. PLACE OF DELIVERY. A depositary must de- liver the thing deposited at his residence or place of business, as may be most convenient for him. History: Enacted March 21, 1872. § 1825. NOTICE TO OWNER OF ADVERSE CLAIM. A depositary must give prompt notice to the person for 659 §§1826-1828 CIVIL CODE. [Div.III.Pt.IV. whose benefit the deposit was made, of any proceedings tak- en adversely to his interest in the thing deposited, which may tend to excuse the depositary from delivering the thing to him. History: Enacted March 21, 1872. § 1826. NOTICE TO OWNER OF THING WRONG- FULLY DETAINED. A depositary, who believes that a thing deposited with him is wrongfully detained from its true owner, may give him notice of the deposit; and if with- in a reasonable time afterwards he does not claim it, and sufficiently establish his right thereto, and indemnify the de- positary against the claim of the depositor, the depositary is exonerated from liability to the person to whom he gave the notice, upon returning the thing to the depositor, or as- suming, in good faith, a new obligation changing his posi- tion in respect to the thing, to his prejudice. History: Enacted March 21, 1872. § 1827. DELIVERY OF THING OWNED JOINTLY, ETC. If a thing deposited is owned jointly or in common by persons who cannot agree upon the manner of its deliv- ery, the depositary may deliver to each his proper share thereof, if it can be done without injury to the thing. Hi.story: Enacted March 21, 1872. § 1828. JOINT DEPOSITS BY TWO OR MORE PER- SONS. When a deposit is made in the name of two or more persons, deliverable or payable to either or to their survivor or survivors, such deposit or any part thereof, or increase thereof, may be delivered or paid to either of said persons or to the survivor or survivors in due course of business. Hi-story: Enacted March 4, 1907, Stats, and Amdts. 1907, p. 92, Kerr's Stats, and Amdts. 1906-7, p. 426. 660 Tit.III.ch.II.art.I.] INDEMNIFYING DEPOSITARY. §1833 CHAPTER II. DEPOSIT FOR KEEPING Article I. General Provisions, §§ 1833-1840. II. Gratuitous Deposit, §§1844-1847. III. Storage, §§1851-1857. 1 1 la. Warehousemen, §§-1858-1858f. IV. Innkeepers, §§ 1859-1863. V. Finding, §§ 1864-1872. ARTICLE I. GENERAL PROVISIONS. ? 1833. Depositor must indemnify depositary. § 1834. Obligation of depbsitary of animals. § 1835. Obligations as to use of thing deposited. § 1836. Liability for damage arising from wrongful use. § 1837. Sale of thing in danger of perishing. § 1838. Injury to, or loss of thing deposited. § 1839. Service rendered by depositary. § 1840. Extent of his liability for negligence. § 1833. DEPOSITOR MUST INDEMNIFY DEPOSI- TARY. A depositor must indemnify the depositary: 1. For all damage caused to him by the defects or vices of the thing deposited; and, 2. For all expenses necessarily incurred by him about the thing, other than such as are involved in the nature of the undertaking. History: Enacted March 21, 1872. 661 §§1834-1838 CTViL roDK. f Div.TTl.Pt.lV. § 1834. OBLIGATION OF DEPOSITARY OF ANI- MALS. A depositary of living animals must provide them with suitable food and shelter, and treat them kindly. History: Enacted March 21, 1872. § 1835. OBLIGATIONS AS TO USE OF THING DE- POSITED. A depositary may not use the thing deposited, or permit it to.be used, for any purpose, without the consent of the depositor. He may not, if it is purposely fastened by the depositor, open it without the consent of the la.tter, ex- cept in case of necessity. HLstory: Enacted March 21, 1S72. §1836. LIABILITY FOR DAMAGE ARISING FROM WRONGFUL USE. A depositary is liable for any damage happening to the thing deposited, during his wrongful use thereof, unless such damage must inevitably have happened though the property had not been thus used. History: Enacted March 21, 1872. § 1837. SALE OF THING IN DANGER OF PERISH- ING. If a thing deposited is in actual danger of perishing before instructions can be obtained from the depositor, the depositary may sell it for the best price obtainable, and re- tain the proceeds as a deposit, giving immediate notice of his proceedings to the depositor. History: Enacted March 21, 1872. § 1838. INJURY TO, OR LOSS OF THING DEPOS- ITED. If a thing is lost or injured during its deposit, and the depositary refuses to inform the .depositor of the circum- stances under which the loss or injury occurred, so far as he has information concerning them, or wilfully misrepre- 662 Tit.II,ch.II,art.I.] services and liabilities. §§ 1839, 1840 sents the circumstances to him. the depositary is presumed to have wilfully, or by gross negligence, permitted the loss or injury to occur. Hi-storj-: Enacted March 21, 1872. § 1839. SERVICE RENDERED BY DEPOSITARY. So far as any service is rendered by a depositary, or re- (|uired from him, his duties and liabilities are prescribed by the title on employment and service. Historj-: Enacted March 21, 1872. § 1840. EXTENT OF HIS LIABILITY FOR NEGLI- GENCE. The liability of a depositary for negligence cannot exceed the amount which he is informed by the depositor, or has reason to suppose, the thing deposited to be worth. HUtory: Enacted March 21, 1872; amended March 30, 1S74, Code Amdts. 1873-4, p. 244. 663 §§1844-1847 CIVIL CODE. [Div.III,Pt.IV. ARTICLE II. GRATUITOUS DEPOSIT. § 1S44. Gratuitous deposit, what. § 1845. Nature of involuntary deposit. § 1846. Degree of care required of gratuitous depositary. § 1847. His duties cease, when. § 1844. GRATUITOUS DEPOSIT, WHAT. Gratuitous deposit is a deposit for which the depositary receives no con- sideration beyond the mere possession of the thing depos ited. History: Enacted March 21, 1872. § 1845. NATURE OF INVOLUNTARY DEPOSIT. An involuntary deposit is gratuitous, the depositary being en- titled to no reward. Hi.story: Enacted March 21, 1872. §1846. DEGREE OF CARE REQUIRED OF GRATUI- TOUS DEPOSITARY. A gratuitous depositary must use, at least, slight care for the preservation of the thing de- posited. History: Enacted March 21, 1872. § 1847. HIS DUTIES CEASE, WHEN. 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 re- move it, and the owner failing to do so within a reasonable time. But an involuntary depositary, under subdivision two of section eighteen hundred and fifteen, cannot give such no- tice until the emergency which gave rise to the deposit is past. History-: Enacted March 21, 1872. 664 Tit.III,ch.II,art.IlI.] deposit for HIRE. §§1851-1854 ARTICLE III. STORAGE. § 1851. Deposit for hire. § 1852. Degree of care required of depositary for hire. § 1853. Rate of compensation for fraction of a week, etc. § 1854. Termination of deposit. § 1855. Same. [On payment of cliarges to become due.] § 1856. Lien for storage-charges [and money advanced]. § 1857. Storage property to be sold. § 1851. DEPOSIT FOR HIRE. A deposit not gratuitous is called storage. The depositary in such case is called a de- positarj' for hire. Hi.-story: Enacted March 21, 1S72. § 1852. DEGREE OF CARE REQUIRED OF DEPOS- ITARY FOR HIRE. A depositary for hire must use at least ordinary care for the preservation of the thing depos- ited. History: Enacted March 21, 1872. § 1853. RATE OF COMPENSATION FOR FRACTION OF A WEEK, ETC. In the absence of a different agree- ment or usage, a depositary for hire is entitled to one week's hire for the sustenance and shelter of living animals during any fraction of a week, and to half a month's hire for the storage of any other property during anj- fraction of a half month. History: Enacted March 21, 1872. §1854. TERMINATION OF DEPOSIT. In the absence of an agreement as to the length of time during which a de- 665 §S 1855-1857 CTVTi. CODE. fDiv.HI.Pt.l V. posit is to continue, it may he terminated by tlie depositor at anj' time, and by the depositary upon reasonable notice. History: Enacted March 21. ISTi!. § 1855. SAME. [ON PAYMENT OF CHARGES TO BECOME DUE.] Notwithstanding an agreement respect- ing the length of time during which a deposit is to continue, it may be terminated by the depositor on paying all that would become due to the depositary in case of the deposit so continuing. History: Enacted March 21, 1872. § 1856. LIEN FOR STORAGE-CHARGES. [AND MONEY ADVANCED.] A depositary for hire has a lien for storage charges and for advances and insurance incurred at the request of the bailor, and for money necessarily ex- pended in and about the care, preservation and keeping of the property stored, and he also has a Hen for money ad- vanced at the request of the bailor, to discharge a prior lien, and for the expenses of a sale where default has been made in satisfying a valid lien. The rights of the depositary for hire to such lien are regulated by the title on liens. History: Enacted March 31, 1891, Stats, and Amdts. 1S91, p. 470; amended Api'H 19. 1909, Stats, and Amdts. 1909, p. 1001. § 1857. STORAGE PROPERTY TO BE SOLD. If from any cause other than want of ordinary care and dili- gence on his part, a depositary for hire is unable to deliver perishable property, baggage, or luggage received by him for storage, or to collect his charges for storage due thereon, he may cause such property to be sold, in open market, to satisfy his lien for storage; provided, that no property except perishable property shall be sold, under the provisions of this section, upon which storage charges shall not be due and unpaid for one year at the time of such sale. Hi.story: Enacted March 31, 1.S91, Stats, and Amdts. 1S91, p. 470. 666 Tit.lll,ch.ll,art.llla.] WAREHOUSEMEN. §1858 [This article, including §§ 1858-1858f, was added by Code Commission as a part of article III, Act of March 16, 1901, Stats, and Amdts. 1900-1, pp. 409-411, held unconstitutional, see history, | 4 ante; Commissioner Davis procured a re-enactment of these sections — improperly designating them as "Chapter llla" — March 21. 1905, Stats, and Amdts. 1905, pp. 611-613.] ARTICLE Ilia. WAREHOUSEMEN. S 1858. Warehouse receipts, when must not be issued. § 1858a. Property not to be removed without consent in writ- ing. § 185Sb. Warehouse receipts, classification and effect of. § 185'8c. Indorsement on negotiable receipt of properly de- livered. § 1858d. Non-negotiable receipts and their effect. § 1858e. Liability for loss by fire. § 1858f. Penalties and liabilities. § 1858. WAREHOUSE RECEIPTS, WHEN MUST NOT BE ISSUED. A warehouseman, wharfinger, or other person doing a storage business must not issue any receipt or voucher for any merchandise, grain, or other product or thing of value, to any person purporting to be the owner thereof, nor to any person as security for any indebtedness or for the performance of any obligation, unless such mer- chandise, grain, or other product, commodity, or thing has lieen, in good faith, received by such warehouseman, wharf- inger, or other person, and is in his store or under liis con- trol at the time of issuing his receipt; nor must any second receipt for any such property be issued while a former re- ceipt for any part thereof is outstanding and uncanceled. History: Enacted Marcli 21, 1905. See introductorj- note ('• article. 667 §§ 1858a-1858c CIVIL CODE. [Div.III,Pt.IV. § 1858a. PROPERTY NOT TO BE REMOVED WITH- OUT CONSENT IN WRITING. No warehouseman, wharf- inger, or other person must sell or encumber, ship, transfer, or remove beyond his immediate control any property for which a receipt has been given, without the consent in writ- ing of the person holding such receipt plainly indorsed there- on in ink. History: Enacted March 21, 1905. See introductory note to article. § 1858b. WAREHOUSE RECEIPTS, CLASSIFICA- TION AND EFFECT OF. Warehouse receipts for prop- erty stored are of two classes: first, transferable or nego- tiable; and second, non-transferable or non-negotiable. Un- der the first of these classes the property is transferable bj' indorsement of the party to whose order such receipt was issued, and such indorsement is a valid transfer of the prop- erty represented by the receipt, and may be in blank or to the order of another. All warehouse receipts must distinctly state on their face for what they are issued and its brands and distinguishing marks and the rate of storage per month or season, and, in the case of grain, the kind, the number of sacks, and pounds. If a receipt is not negotiable, it must have printed across its face, in red ink, in bold, distinct let- ters, the word "Non-negotiable." History: Enacted March 21, 1905. See introductory note to article. § 1858c. INDORSEMENT ON NEGOTIABLE RE- CEIPT OF PROPERTY DELIVERED. If a negotiable receipt is issued for any property, neither the person issu- ing it nor any other person into whose care or control the property comes must deliver any part thereof without in- dorsing on the back of the receipt, in ink, the amount and date of the delivery; nor can he be allowed to make any off- 668 Tif.IIT,ch.II.art.IIIa.] LOSS BY FIRE. §§ 1858d-1858f set, claim, or demand other than is expressed on the face of the receipt, when called upon to deliver any property for which it was issued. History: Enacted March 21, 1905. See Introductory note to article. § 1858d. NON-NEGOTIABLE RECEIPTS AND THEIR EFFECT. If a non-negotiable receipt is issued for any property, neither the person issuing nor any other person in whose care or control the property comes must deliver any part thereof, except upon the written order of the per- son to whom the receipt was issued. History: Enacted March 21, 1905. See introductory note to article. § 1858e. LIABILITY FOR LOSS BY FIRE. No ware- houseman or other person doing a general storage business is responsible for any loss or damage to property by fire while in his custody, if he exercises reasonable care and dili- gence for its protection and preservation. History: Enacted March 21, 1905. See introductory note to article. § 1858f. PENALTIES AND LIABILITIES. Every warehouseman, wharfinger, or other person who violates any of the provisions of sections eighteen hundred and fifty- eight to eighteen hundred and fifty-eight e, inclusive, is guilty of a felony, and, upon conviction thereof, may be fined in a sum not exceeding five thousand dollars, or im- prisoned in the state prison not exceeding five years, or both. He is also liable to any person aggrieved by such vio- lation for all damages, immediate or consequent, which he may have sustained therefrom, which damages may be recov- ered by a civil action in any court of competent jurisdiction, whether the oflfender has been convicted or not. History: Enacted March 21, 1905. See introductory note to article. 669 / §§1859,1860 civil. CODK. | Div.lU.Pt.IV. ARTICLE IV. INNKEEPERS. § 1859. Innkeeper's liability. § 1860. How exempted from liability. § 1861. Lien for charges on baggage. § 1862. Unclaimed baggage may be .sold at auction; notice of. § 1863. Keepers to post rates of charges. § 1859. INNKEEPER'S LIABILITY. The liability of an innkeeper, hotel keeper, boarding-house and lodging-house keeper, for losses of or injuries to personal property, other than money, placed by his guests, boarders, or lodgers un- der His care, is that of a depositary for hire; [Amount of liability.] Provided, however, that in no case shall such liability exceed the sum of one hundred dollars for each trunk and its contents, fifty dollars for each valise or traveling-bag and contents, and ten dollars for each box, bundle or package and contents, so placed under his care, unless he shall have consented in writing with the owner thereof to assume a greater liability. Hlstorj'i Enacted March 21, 1872; amended March 12, 1893. Stats, and Amdts. 1895. p. 49. § 1860. HOW EXEMPTED FROM LIABILITY. If an innkeeper, hotel keeper, boarding-house or lodging-house keeper, keeps a fire-proof safe, and gives notice to a guest, boarder, or lodger, either personally or by putting up a print- ed notice in. a prominent place in the office or the room occu- pied by the guest, boarder, or lodger, that he keeps such a safe and will not be liable for money, jewelry, documents, or other articles of unusual value and small compass, unless placed therein, he is not liable, except so far as his own acts shall contribute, thereto, for any loss of or injury to such 670 Tit.III.cll.II.art.R'.l ('riARGES— LTEN OX P.ACCxAGE. §1861 articles, if not deposited with him to be phiced therein, nor in any case more than the sum of two hundred and fifty dol- lars for any or all such property of any individual guest, boarder, or lodger, unless he shall have given a receipt in writing therefor to such guest, boarder, or lodger. I History: Enacted March 21, 1S72; amendecl March 12, 1895. Stat.s. and Amdt.';. 1S9.5. p. 50. § 1861. LIEN FOR CHARGES ON BAGGAGE. Hotel, inn, l)oarding-house and lodging-house keepers shall have a lien upon the baggage and other property belonging to or legally under the control of their guests, or boarders, or lodg- ers which may be in such hotel, inn, or boarding or lodging- house for the proper charges due from such guests, or board- ers, or lodgers, for their accommodation, board and lodging and room rent, and such extras as are furnished at their re- quest, and for all money paid for or advanced to such guests, or boarders or lodgers, and for the cost of enforcing such lien, with the right to the possession of such baggage and other property until such charges and moneys are paid; [May sell baggage.] and unless such charges and moneys shall be paid within sixty days from the time when the same become due, said hotel, inn, boarding-house or lodging-house keeper may sell said baggage and property at public auction to the highest bidder, after giving notice of such sale by publication of a notice containing the name of the debtor, the amount due, a brief description of the property to be sold, and the time and place of such sale, once every week for four successive weeks prior to the day of sale, in a newspaper of general circulation in the county in which said hotel, inn, boarding-house or lodging-house is situated and also by mailing, at least fifteen days before such sale, a copy of such notice addressed to such guest, boarder or lodger at his post office address, if known, and if not known, such notice shall be addressed to such guest, boarder or lodger at the place where such hotel, inn, boarding-house or lodging-house is situated; 671 §1861 CIVIL CODE. [Div.III.Pt.IV. [Residue.] and after satisfying such lien out of the pro- ceeds of such sale together with any reasonable costs that may have been incurred in enforcing said lien, the residue of said proceeds of sale, if any, sha,!! upon demand made within six months after such sale, be paid by said hotel, inn, board- ing-house, or lodging-house keeper to such guest, boarder or lodger; and if not demanded within six months from the date of such sale, such residue shall be paid into the treas- ury of the county in which such sale took ^ace; and if the same be not claimed by the owner thereof, or his legal rep- resentatives, within one year thereafter, the same shall be paid into the general fund of said county; and such sale shall be a perpetual bar to any action against said hotel, inn, boarding-house or lodging-house kepeer for the recovery of such baggage or property or of the value thereof, or for anj- damages growing out of the failure of such guest, boarder or lodger to receive such baggage or property; [Baggage not belonging to guest.] provided, however, that is any baggage or property becoming subject to the lien herein provided for does not belong to the guest, lodger or boarder who incurred the charges or indebtedness secured thereby, at the time when such charges or indebtedness was incurred, and if the hotel, inn, boarding or lodging-house keeper entitled to such lien receives notice of such fact at any time before the sale of such baggage or property here- under, then, and in that event, such baggage and property which is subject to said lien and did not belong to said guest, boarder or lodger at the time when such charges or indebt- edness was incurred shall not be subject to sale in the man- ner hereinbefore provided, but such baggage and property may be sold in the manner provided by the Code of Civil Procedure for the sale of property under a writ of execu- tion, to satisfy a judgment obtained in any action brought to recover the said charges or indebtedness. Histiry: Enacted April 1, 1876, Code Amdts. 1875-6, p. 78; amended June 7, 1915, Stats, and Amdts. 1915, p. 1285. In effect August 8, 1915. ■ 672 Tit.III,ch.II,art.IV.] UNCLAIMED BAGGAGE. §§1862,1863 § 1862. UNCLAIMED BAGGAGE MAY BE SOLD AT AUCTION; NOTICE OF. Whenever any trunk, carpet- bag, valise, box, bundle, or other baggage has heretofore come, or shall hereafter come into the possession of the keeper of any hotel, inn, boarding or lodging house, as such, and has remained or shall remain unclaimed for the period of six months, such keeper may proceed to sell the same at public auction, and out of the proceeds of such sale may re- tain the charges for storage, if any, and the expenses of ad- vertising and sale thereof; but no such sale shall be made until the expiration of four weeks from the first publication of notice of such sale in a newspaper published in or near- est the city, town, village, or place in which said hotel, inn, boarding or lodging house is situated. Said notice shall be published once a week, for four successive weeks, in some newspaper, daily or weekly, of general circulation, and shall contain a description of each trunk, carpet-bag, valise, box, bundle, or other baggage, as near as may be; the name of the owner, if known; the name of such keeper, and the time and place of sale; and the expenses incurred for advertising shall be a lien upon such trunk, carpet-bag, valise, box, bundle, or other baggage, in a ratable proportion, according to the value of such piece of property, or thing, or article sold; and in case any balance arising from such sale shall not be claimed by the rightful owner within one week from the day of said sale, the same shall be paid into the treasury of the county in which such sale took place; and if the same be not claimed by the owner thereof, or his legal representatives, within one year thereafter, the same shall be paid into the general fund of said county. History: Enacted April 1, 1S76, Code Amdt.s. l,S75-6, p. 78. § 1863. KEEPERS TO POST RATES OF CHARGES. Every keeper of a hotel, inn, boarding or lodging house, shall post in [a] conspicuous place in the office or public room, and in every bedroom of said hotel, boarding-house, inn, or ••;-• 673 §1863 CIVIL CODE. [Div.III.Pt.IV. lodging-house, a printed copy of this section, and a statement of charge or rate of charges by the day, and for meals or items furnished, and for lodging. No charge or sum shall be collected or received by any such person for any service not actually rendered, or for any item not actually delivered, or for any greater or other sum than he is entitled to by the general rules and regulations of said hotel, inn, boarding or lodging house. For any violation of this section, or any pro- vision herein contained, the offender shall forfeit to the in- jured party three times the amount of the sum charged in excess of what he is entitled to. History: Enacted April 1, 1876, Code Amdts. 1875-6, p. 79; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 411, held unconstitutional, see history, § 4 ante. 674 Tit.III.ch.II.art.V.] NOTICE TO OWNER. §§1864,1865 ARTICLE V. FINDING. § 1S64. Obligation of fmcler. § I860. Finder to notify owner. Duty wiiere owner not known. § 1866. Claimant to prove ownership. § 1867. Reward, etc., to finder. § 1868. Finder may put thing- found on storage. § 1869. T\'hen finder may sell the thing found. § 1870. How sale is to be made. § 1871. Property vests in finder, when. Publication in certain cases. Liability of finder to owner. § 1S72. Thing abandoned. § 1864. OBLIGATION OF FINDER. One who finds a thing lost is not bound to take charge of it, but if he does so he is thenceforward a depositary for the owner, with the rights and obligations of a depositary for hire. History: Enacted March 21, 1872. § 1865. FINDER TO NOTIFY OWNER. DUTY WHERE OWNER NOT KNOWN. If the finder of a thing, other than a domestic animal, takes possession thereof, or if a person saves any such animal from drowning or starva- tion, he must, within a reasonable time, inform the owner thereof, if known, and make restitution to him upon demand, without compensation, except a reasonable charge for sav- ing and caring therefor. If the owner is not known to such finder or saver, he must, within five days, file an affidavit with the justice of the peace of the county whose office is nearest to the place of such finding or saving, particularly describing the property and the time, place, and circum- stances under which it was found or saved. Such justice must then summon three disinterested persons to appraise the property. Thev, or a majority of them, must make two 675 §§1866-1869 CIVIL CODE. [Div.II I.Pt.l V. lists of the valuation and description of the property, by them verified, and deliver one of such lists to the justice of the peace, to be kept by him on file in his office, and the other list must be delivered to such finder or saver, who must, within five days thereafter, cause It to be filed for rec- ord in the office of the county recorder of the county, who must record it in a book known as the "Estray and Lost Propert}' Book." History: Enacted March 21, 1S72; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1. p. 411, held unconstitutional, see history, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905. p. 613. §1866. CLAIMANT TO PROVE OWNERSHIP. The finder of a thing may, in good faith, before giving it up, re- quire reasonable proof of ownership from any person claim- ing it. Hi.Htory: Enacted March 21. 1S72. § 1867. REWARD, ETC., TO FINDER. The finder of a thing is entitled to compensation for all expenses necessar- ily incurred by him in its preservation, and for any other service necessarilj' performed by him about it, and to a rea- sonable reward for keeping it. HLstorj-: Enacted March 21, 1872. §1868. FINDER MAY PUT THING FOUND ON STORAGE. The finder of a thing may exonerate himself from liability at any time by placing it on storage with any responsible person of good character, at a reasonable ex- pense. History: Enacted March 21, 1S72. §1869. WHEN FINDER MAY SELL THE THING FOUND. The finder of a thing may sell it, if it is a thing which is commonly the subject of sale, when the owner can- 676 Tit.IIl,ch.lI,art.IV.] VESTING OF propp:rty. §§ 1870, 1871 not, with reasonable diligence be found, or, being found, re- fuses upon demand to pay the lawful charges of the finder in the following cases: 1. When the thing is in danger of perishing, or of losing the greater part of its value; or, 2. When the lawful charges of the finder amount to two thirds of its value. History: Enacted March 21, 1872. § 1870. HOW SALE IS TO BE MADE. A sale under the provisions of the last section must be made in the same manner as the sale of a thing pledged. History: Enactecl March 21, 1S72. § 1871. PROPERTY VESTS IN FINDER, WHEN. PUBLICATION IN CERTAIN CASES. LIABILITY OF FINDER TO OWNER. If no owner appears within six months after such finding or saving and offers reasonable proof of his ownership, and compensates, or in good faith offers to compensate, the finder or saver for the expense necessarily incurred by him, then such property vests in such finder or saver, unless it is of greater value than twenty dollars.' If of such greater value, he must publish a copy of such verified list for three successive weeks in some news- paper of general circulation published in the county, and if the owner does not, within one year after the completion of such publication, prove the property and pay, or in good faith offer to pay, all charges thereon, the title thereto vests in such finder or saver. If the finder or saver of property does not comply with the provisions of section eighteen hun- dred and sixty-five, or if, though lie does so comply, he re- fuses to surrender the property to an owner who has made reasonable proof of ownership, and paid, or in good faith offered to pay, all legal charges thereon, he is liable to the 677 §1872 CIVIL CODE. [Div.IILPt.IV. owner for double the value of the property, and the owner may exonerate himself from all liability arising out of such property by surrendering, or offering to surrender, it in sat- isfaction thereof. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 412, held unconstitutional, see history, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 614. § 1872. THING ABANDONED. The provisions of this article have no application to things which have been inttr.i- tionally abandoned by their owners. History: Enacted March 21, 1872. 678 Tit.III.ch.III.Tit.IV.ch.L] LOAN. §1878 CHAPTER III. DEPOSIT FOR EXCHANGE. § 1878. Relations of the parties. § 1878. RELATIONS OF THE PARTIES. A deposit for exchange transfers to the depositary the title to the thing deposited, and creates between him and the depositor the relation of debtor and creditor merely. History: Enacted March 21, 1ST2. TITLE IV. LOAN Chapter I. Loan for Use, §§ 1884-1896 II. Loan for Exchange, §§ 1902-1906. III. Loan of Money, §§ 1912-1920. CHAPTER I. LOAN FOR USE. § 1884. Loan, what. § 1SS5. Title to property lent. § 1886. Care required of borrower. § 1887. Same. [Of animal for use.] § 1888. Degree of skill. § 1889. Borrower, when to repair injuries. § 1890. Use of thing lent. § 1891. Relending forbidden. § 1892. Borrower, when to bear expenses. 679 §§1884-1889 (MVTT, rODE. | Div.TTI.Pt.IV. § 1893. Lender liable for defects. § 1894^ Lender may require return -: Enacted March 21, 1872; amended May 21, 1915, Stats, and Amdts. 1915, p. 720. In effect August 8, 1915. § 2001. TERMINATION BY EMPLOYEE FOR FAULT. An employment, for a specified term, may be terminated by the employee at any time, in case of any wilful or permanent breach of the ')l)ligations of liis employer lo him ris v.n em- ployee. HIstorj': Enacted March 21, 1872; aniended May 21, 191."i, Stats, and Amdts. 1915, p. 720. In effect August 8, 1915. 707 §§2002,2003 CIVIL code. [Div.III.Pt.IV. §2002. COMPENSATION OF EMPLOYEE DIS- MISSED FOR CAUSE. An employee who is not employed for a specified term, dismissed by his employer, is entitled to compensation for services rendered up to the time of such dismissal. History: Enacted March 21, 1872; amended May 21, 1915, Stats, and Amdts. 1915, p. 720. In effect August 8, 1915. §2003. COMPENSATION OF EMPLOYEE LEAVING FOR CAUSE. An employee who is not employed for a spe- cified term and who quits the service of his employer, is en- titled to compensation for services rendered up to the time of such quitting. Hi.story: Enacted March 21, 1872; amended May 21, 1915, Stats, and Amdts. 1915, p. 720. In effect August S, 1915. "08 Tit.VI,ch.lI,art.I.] MASTER and SERVANT. §§2009,2010 CHAPTER II. PARTICULAR EMPLOYMENT. .\rticle I. Alaster and Servant. §§2009-2015. II. Agents, §§2019-2022. III. Factors, §§2026-2030. IV. Shipmasters, §§2034-2044. - \'. Mates and Seamen. §§2048-2066. VI. Ship's managers. §§2070-2072. ARTICLE I. MASTER AND SERVANT. § 2009. Servant, what. § 2010. Term of hiring. § 2011. Same. [Presumed to be montlily, when.] § 2012. Renewal of hiring. § 2013. Time of service. § 2014. Servant to pay over without demand. § 201.5. When servant may be di.scharged. § 2009. SERVANT, WHAT. A servant is one who is em- ployed to render personal service to his employer, other- wise than in the pursuit of an independent calling, and who in such service remains entirely under the contrcd and direc- tion of the latter, who is called his master. Ilixtory: Enarted Marcli 21. ls72. §2010. TERM OF HIRING. A servant is presumed to liave been hired for such length of time as the parties adopt for the estimation of wages. A hiring at a yearly rate is 709 §§2011-2014 CIVIL CODE. [Div.IIl.Pt.IV. presumed to be for one year; a hiring at a daily rate, for one day; a hiring by piecework, for no specified term. History: Enacted March 21, 1872. §2011. SAME. [PRESUMED TO BE MONTHLY, WHEN.] In the absence of any agreement or custom as to the term of service, the time of payment, or rate or value of wages, a servant is presumed to be hired by the month, at a monthly rate of reasonable wages, to be paid when the service is performed. History: Enacted March 21, 1872. §2012. RENEWAL OF HIRING. Where, after the ex- piration of an agreement respectmg the wages and the term of service, the parties continue the relation of master and servant, they are presumed to have renewed the agreement for the same wages and term of service. History: Enacted March 21, 1872. §2013. TIME OF SERVICE. The entire time of a do- mestic servant belongs to the master; and the time of other servants to such extent as is usual in the business in which i.hey serve, not exceeding in any case ten hours in the day. History: Enacted Marcli 21, 1S72. §2014. SERVANT TO PAY OVER WITHOUT DE- MAND. A servant must deliver to his master, as soon as with reasonable diligence he can find him, everything that he receives for liis account, without demand; but he is not bound, without orders from his master, to send anything to Mm through another person. History: Enacted March 21, 1872. 710 Tit.VI,ch.n,art.T.l DISCHARGE OF SERVANT. §2015 §2015. WHEN SERVANT MAY BE DISCHARGED. A master may discharge any servant, otlier than an appren- tice whether engaged for a fixed term or not: 1. If he is guilty of misconduct in the course of his service, or of gross immorality, though unconnected with the same; or, 2. If, being employed about the person of the master, or m a confidenLial position, the master discovers that he has been guilty of misconduct, before or after the commence- ment of his service, of such a nature that, if the master had known or contemplated it, he would not have so employed him. History: Enacted March 21, 1872. 711 §§2019-2022 civil, CODE. | Div.l I I,Pt.I\' ARTICLE II. AGENTS. § 2019. Agent to conform to his authority. § 2020. Must keep his principal informed. § 2021. Collecting agent. § 2022. Responsibility of sub-agent. § 2019. AGENT TO CONFORM TO HIS AUTHORITY. An agent must not exceed the limits of his actual authority, as defined by the title on agency. History: Enacted March 21, 1S72. §2020. MUST KEEP HIS PRINCIPAL INFORMED. An agent must use ordinary diligence to keep his principal informed of his acts in the course of the agency. History: Enacted March 21, 1872. §2021. COLLECTING AGENT. An agent employed to collect a negotiable instrument must collect it promptly, and take all measures necessary to charge the parties thereto, in case of its dishonor; and, if it is a bill of exchange, must pre- sent it for acceptance with reasonable diligence. Hi.story: Enacted March 21, 1872. §2022. RESPONSIBILITY OF SUB-AGENT. A mere agent of an agent is not responsible as such to the princi- pal of the latter. Hi.«jtory: Enacted March 21, 1872. 712 Tit.Vl.ch.II.art.llI.] FACTORS— OBEDlExNCE. §§2026-2028 ARTICLE III. FACTORS. S 202H. Factor, what. § 2027. Obedience required from factor. § 202S. Sales on credit. §2029. Liability of factor under guaranty commi.ssion. § 2030. Factor cannot relieve himself from liability. § 2026. FACTOR, WHAT. A factor is an agent who, m the pursuit of an independent calling, is employed by an- other to sell property for him, and is vested by the latter with the possession or control of the property, or authorized to receive payment therefor from the purchaser. History: Enacted March 21, 1872. § 2027. OBEDIENCE REQUIRED FROM FACTOR. A factor must obey the instructions of his principal to the same extent as any other employee, notwithstanding any ad- vances he may have made to his principal upon the property consigned to him, except that if the principal forbids him to sell at the market price, he may, nevertheless, sell for his reimbursement, after giving to his principal reasonable no- tice of his intention to do so, and of the time and place of sale, and proceeding in all respects as a pledgee. History; Enacted March 21, 1S;72. §2028. SALES ON CREDIT. A factor may sell prop- erty consigned to him on such credit as is usual; but, having once agreed with the purchaser upon the term of credit, may not extend it. History: Enacted Marcli 21, 1S72. 713 §§2029,2030 CIVIL code. [Div.III.Pt.l V. §2029. LIABILITY OF FACTOR UNDER GUARAN- TY COMMISSION. A factor who charges his principal with a guaranty commission upon a sale, thereby assumes absolutely to pay the price when it falls due, as if it were a debt of his own, and not as a mere guarantor for the pur- chaser; but he does not thereby assume any additional re- sponsibility for the safety of his remittance of the proceeds. History: Enacted March 21, 1S72. §2030. FACTOR CANNOT RELIEVE HIMSELF FROM LIABILITY. A factor who receives property for sale, under a general agreement or usage to guarantee the sales or the remittance of the proceeds, cannot relieve him- self from responsibility therefor without the consent of his principal. Histoi-}-: Enacted March 2l, 1872. 714 Tit.VT,ch.TT,art.T V-l STTTPMASTERS— PTT.otagk. §§ 2034-2037 ARTICLE IV. SHIPMASTERS. § 2034. Appointment of master. § 203.5. When must be on board. § 2036. Pilotage. § 2037. Power of master over seamen. § 2038. Power of master over passengers. § 2039. Impressing private stores. § 2040. Wiien may abandon the ship. § 2041. Duties on abandonment. § 2042. When master cannot trade on his own account. § 2043. Care and diligence. § 2044. Authority of master. § 2034. APPOINTMENT OF MASTER. The master of a ship is appointed by the owner, and holds during his pleas- ure. HLstory: Enacted March 21, 1872. §2035. WHEN MUST BE ON BOARD. The master of a ship is bound to be always on board when entering or leaving a port, harbor, or river. Hlslory: Enacted Marcli 21, 1872, foundc^d upon Code de Com. art. 227. § 2036. PILOTAGE. On entering or leaving a port, har- bor, or river, the master of a ship must take a pilot if one offers himself, and while the pilot is on board the navigation of the ship devolves on him. History: Enacted March 21. 1872. §2037. POWER OF MASTER OVER SEAMEN. The master of a sliip may enforce the obedience of the mate and 715 §§2038-2042 (^IVIT. code. f Div.l 1 IJ't.l V. seamen to his lawful commands by confinement and other reasonable corporal punishment, not prohibited by acts of Congress, being responsible for the abuse of his power. History: Enacted March 21, 1S72. §2038. POWER OF MASTER OVER PASSENGERS. The master of a ship may confine any person on board, dur- ing a voyage, for wilful disobedience to his lawful commands. History: Enacted March 21, 1872. §2039. IMPRESSING PRIVATE STORES. If, during a voyage, the ship's supplies fail, the master, with the advice of the officers, may compel persons who have private sup- plies on board to surrender them for the common want, on payment of their value, or giving security therefor. History: Enacted March 21, 1872, founded upon \Code de Com. art. 219. \ §2040. WHEN MAY ABANDON THE SHIP. Tht master of a ship must not abandon it during the voyage, without the advice of the other officers. History: Enacted March 21, 1872. §2041. DUTIES ON ABANDONMENT. The master of a ship, upon abandoning it, must carry with him, so far as it is in his power, the money and the most valuable of the goods on board, under penalty of being personally responsi- ble. If the articles thus taken are lost from causes beyond liis control, he is exonerated from liability. History: Enacted March 21, 1872, founded upon Code de Com. art. 211. §2042. WHEN MASTER CANNOT TRADE ON HIS OWN ACCOUNT. The master of a ship, who engages for 716 Tit.VI,ch.II,art.l\'.l 1 >ri.rCxKNCE—AUTHOniTY.§§ 2043. 2044 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. History: Enacted Mareh 21, 1872, see Code de Com. arts. 2.39, 240. § 2043. CARE AND DILIGENCE. The master of a ship must use great care and diligence in the performance of his duties, and is responsible for all damage occasioned by his negligence, however slight. Hi.«*tory: Enacted March 21, 1ST2. §2044. AUTHORITY OF MASTER. The authority and liability of the master of a ship, as an agent for the owners of the ship and cargo, are regulated by the title on agency. History: Enacted March 21, 1872. 717 §§2048-2050 (MVIT. CODE. | Div.Il I.Pl.l V. ARTICLE V. MATES AND SEAMEN. § 204S. Mate, what. § 2049. Seamen, what. § 2050. Mate and seamen, how engaged and di.scharg-ed. § 2051. Unseaworthy vessel. § 2052. Seamen not to lose wages or lien by agreement. § 2053. Special agreement with seamen. § 2054. Wages depend on freightage. § 2055. When wages, etc., begin. § 2056. Wages, where voyage is broken up before departure. § 2057. Wrongful discharge. § 2058. Wages, when not lost by wreck. § 2059. Certificate. § 2060. Disabled seamen. § 2061. Maintenance of seamen during .sickness. § 2062. Death on the voyage. § 2063. Theft, etc., forfeits wages. § 2064. Seamen cannot ship goods. § 2065. Embezzlement and injuries [repealed]. § 2066. Law governing seamen. ^ §2048. MATE, WHAT. The mate of a ship is the of- ficer next in rank to the master, and in case of the master's disability he must take his place. By so doing he does not lose an}' of his rights as mate. History: Enacted March 21, 1872. §2049. SEAMEN, WHAT. All persons employed in the navigation of a ship, or upon a voyage, other than the mas- ter and mate, are to be deemed seamen within the provisions of this code. History: Enacted March 21, 1872. § 2050. MATE AND SEAMEN, HOW ENGAGED AND DISCHARGED. The mate and seamen of a ship are en- 718 Tit.VJ,ch.II,art.V.] SEAMExX— AGREEMENT. §§ 2051-2054 gaged by the master, and may be discharged by him at any period of the voyage, for wilful and persistent disobedience or gross disqualification, but cannot otherwise be discharged before the termination of the voyage. lii.stor.v: Enacted March 21, 1S72. §2051. UNSEAWORTHY VESSEL. A mate or seamen is [are] not bound to go to sea in a ship that is not sea- worthy; and if there is reasonable doubt of its seaworthiness, lie may refuse to proceed until a proper survey has been had. History: Enacted March 21, 1872. §2052. SEAMEN NOT TO LOSE WAGES OR LIEN BY AGREEMENT. A seaman cannot, by reason of any agreement, be deprived of his lien upon the ship, or of anyi remedy for the recovery of his wages to which he would otherwise have been entitled. Any stipulation by which he consents to abandon his right to wages in case of the loss of the ship, or to abandon any right he may have or obtain in the nature of salvage, is void. Histor.v: Enacted March 21, 1872. §2053. SPECIAL AGREEMENT WITH SEAMEN. No special agreement entered into by a seaman can impair any of his rights, or add to any of his obligations, as defined by law, unless he fully understands the effect of the agree- ment, and receives a fair compensation therefor. Ilislor.v: Enacted March 21, 1872. §2054. WAGES DEPEND ON FREIGHTAGE. Ex- cept as hereinafter provided, the wages of seamen are due when, and so far only as, freightage is earned, unless the loss of freightage is owing to the fault of the owner or master. Hl.stor.y: Enacted March 21, 1872. 719 §§2055-2059 civil code. [Div.III.Pt.I V. §2055. WHEN WAGES, ETC., BEGIN. The right of a mate or seaman to wages and provisions begins either from the time he begins work, or from the time specified in the agreement for his beginning work, or from his presence on board, whichever first happens. History: Enacted March 21, 1872, founded upon 13 and U Vic. c. 93, § 56. §2056. WAGES, WHERE VOYAGE IS BROKEN UP BEFORE DEPARTURE. Where a voyage is broken up before departure of the ship, the seamen must be paid for the time they have served, and may retain for their indemnity such advances as they have received. History: Enacted March 21, 1872, modified from Code de Com. art. 252. §2057. WRONGFUL DISCHARGE. When a mate or seaman is wrongfully discharged, or is driven to leave the ship by the cruelty of the master on the voyage, it is then ended with respect to him. and he may thereupon recover his full wages. History: Enacted March 21, 1872. §2058. WAGES, WHEN NOT LOST BY WRECK. In case of loss or wreck of the ship, a seaman is entitled to his wages up to the time of the loss or wreck, whether freight- age has been earned or not, if he exerts himself to the ut- most to save the ship, cargo, and stores. History: Enacted March 21, 1.S72. substantially samo as Stats. 7 and S Vic, c. 112, § 17. §2059. CERTIFICATE. A certificate from the master or chief surviving officer of a ship, to the effect that a sea- 720 Tit.Vl,ch.II,art.\".| disabled seamen. §§2060-2063 man exerted himself to the utmost to save the sliip, cargo, and stores, is presumptive evidence of the fact. History: Enacted March 21, 1872. S 2060. DISABLED SEAMEN. Where a mate or seaman is prevented from rendering service by illness or injury, in- curred without his fault in the discharge of his duty on the voyage, or by being wrongfully discharged, or by a capture of the ship, he is entitled to wages notwithstanding; I)ut in case of a capture, a ratable deduction for salvage is to be made. History: Enacted March 21, 1872. §2061. MAINTENANCE OF SEAMEN DURING SICKNESS. If a mate or seaman becomes sick or disabled during the voyage, without his fault, the expense of furnish- ing him with suitable medical advice, medicine, attendance, and other provision for his wants, must be borne by the ship till the close of the voyage. Hist«>ry: Enacted March 21, 1S72. §2062. DEATH ON THE VOYAGE. If a mate or sea- man dies during the voyage, his personal representatives arc entitled to his wages to the time of his death, if he would have been entitled to them had he lived to the end of the voyage. History: Enacted March 21, 1872. §2063. THEFT, ETC., FORFEITS WAGES. Desertion of the ship without cause, or a justifiable discharge by the master during the voyage, for misconduct, or a theft of any part of the cargo or appurtenances of the ship, or a wilful injury thereto or to the ship, forfeits all wages due for the voyage to a inate or seaman thus in fault. HLstory; Enacted March 21, 1872. 721 §§2064-2066 civil code. [Div.III,Pt.lV. §2064. SEAMEN CANNOT SHIP GOODS. A mate or seaman may not, under any pretext, ship goods on his own account without permission from the master. History: Enacted Mai'ch 21, 1872, founded upon Code de Com. art. 2.'il. §2065. EMBEZZLEMENT AND INJURIES [repealed]. History: Enacted March 21, 1872; repealed March .30. 1S74, Code Amdts. 1873-4, p. 247. §2066. LAW GOVERNING SEAMEN. The shipment of officers and seamen, and their rights and duties, are fur- ther regulated by acts of Congress. History: Enacted March 21, 1872. 722 Til.VI,cli.n,art.VI.] MANAGER— DUTIES OF. §§2070-2072 ARTICLE VI. SHIP'S MANAGERS. § 2070. Manager, what. § 2071. Duties of manager. § 2072. Compen.sation. §2070. MANAGER, WHAT. The general agent for the owners, in respect to the care of a ship and freight, is called the manager. If he is a part owner, he is also called the managing owner. History: Enacted March 21, 1872. §2071. DUTIES OF MANAGER. Unless otherwise di- rected, it is the duty of the manager of a ship to provide for the complete seaworthiness of a ship; to take care of it in port; to see that it is provided with necessary papers, with a proper master, mate, and crew, and supplies of provisions and stores. History: Enacted March 21, 1872. §2072. COMPENSATION. A managing owner is pre- sumed to have no right to compensation for his own services. History: Enacted March 21, 1872. 723 §S 2078. 2079 crvii. code. [Div.III.Pt.IV. CHAPTER III. SERVICE WITHOUT EMPLOYMENT. § 207S. Voluntary interference with property. § J(i79. Salvage. § 2078. VOLUNTARY INTERFERENCE WITH PROP- ERTY. One who officiously, and without the consent of the real or apparent owner of a thing, takes it into his pos- session for the purpose of rendering a service about it, must complete such service, and use ordinary care, diligence, and reasonable skill about the same. He is not entitled to any compensation for his service or expenses, except that he may deduct actual and necessary expenses incurred by him about such service from any profits which his service has caused the thing to acquire for its owner, and must account to the owner for the residue. History: Enacted March 21, 1S72. § 2079. SALVAGE. Any person, other than the master, mate, or a seaman thereof, who rescues a ship, her appur- tenances or cargo, from danger, is entitled to a reasonable compensation therefor, to be paid out of the property saved. He has a lien for such claim, which is regulated by the title on liens; but no claim for salvage, as such, can accrue against any vessel, or her freight, or cargo, in favgr of the owners, officers, or crew of another vessel belonging to the same owners; but the actual cost[s] at the time of the services rendered by one such vessel to another, when in distress, are payable through a general average contribution on the property saved. History: Enacted March 21^ 1872; amended March 30, 1874, Code Amdts. 1S73-4, p. 247; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1. p. 413, held unconsti- tutional, see history, § 4 ante. 724 TitA'I l.ch.l. I CARRTAGE— OARRIEUS. §§ 2085, 2086 TITLE VII. CARRIAGE. Chapter I. Carriage in General, §§2085-2090. II. Carriage of Persons, §§, 2096-2104. III. Carriage of Property, §§2110-2155. IV. Carriage of Messages, §§ 2161-2162. \'. Common Carriers, §§ 2168-2209. CHAPTER I. CARRIAGE IN GENERAL. § 2085. Contract of carriage. § 2086. Different kinds of carriers. § 2087. Marine and inland carriers, what. § 2088. Carriers by sea. § 20S9. Obligations of gratuitous carriers. § 2090. Obligations of gratuitous carrier who has begun to carry. §2085. CONTRACT OF CARRIAGE. The contract of carriage is a contract for the conveyance of property, per- sons, or messages, from one place to another. History: Enacted March 21, 1ST2. §2086. DIFFERENT KINDS OF CARRIERS. Carriage is either: 1. Inland; or, 2. Marine. Hi.<': Enacted March 21, 1872. 735 §§2139-2143 CIVIL CODK. |Div.III,Pt.lV. §2139. NATURAL INCREASE OF FREIGHT. No freightaKf can be charge upon the natural increase of freight. History: Knactcd Marrli :; I , ISTi'. §2140. APPORTIONMENT BY CONTRACT, if freightage is apportioned by a bill of lading or other contract made between a consignor and carrier, the carrier is entitled to payment, according to the apportionment, for so much as he delivers. History: Knacted March 21. 1872. §2141. SAME. [NO OBJECTION ON PARTIAL DE- LIVERY.] If a part of the freight is accepted by a con- signee, without a specific objection that the rest is not de- livered, the freightage must be apportioned and paid as to that part, though not apportioned in the original contract. History: Enacted March 21, 1S72. §2142. APPORTIONMENT ACCORDING TO DIS- TANCE. If a consignee voluntarily receives freight at a place short of the one appointed for delivery, the carrier is entitled to a just proportion of the freightage, according to distance. If the carrier, being ready and willing, offers to complete the transit, he is entitled to the full freightage. If he does not thus offer completion, and the consignee re- ceives the freight only from necessit3% the carrier is not entitled to any freightage. History: Enacted March 21. 1S72. §2143. FREIGHT CARRIED FURTHER THAN AGREED, ETC. If freight is carried further, or more ex- peditiously, than was agreed upon by the parties, the carrier is not entitled to additional compensation, and cannot re- Tit.VII,ch.III,art.IV.l I^IEN FOR FREIGHT. §2144 fuse to deliver it, on tlie demand of tlie consignee, at the place and time of its arrival. Hi.s! -207. Ofder of transmission of telegraphic messages. S 2208. Order in other eases. § 2209. Damages when message is refused or postponed. §2207. ORDER OF TRANSMISSION OF TELE- GRAPHIC MESSAGES. A carrier of messages by tele- graph must, if it is practicable, transmit every such message immediately upon its receipt. But if this is not practicable, and several messages accumulate upon his hands, he must transmit them in the following order: 1. Messages from public agents of the United States or of this state, on public business; 2. Messages intended in good faith for immediate pul)lica- tion in newspapers, and not for any secret use; 3. Messages giving information relating to the sickness or death of any person; 4. Other messages in the order in which they were re- ceived. History: Enacted March 21, 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 414, held unconstitutional, see history, § 4 ante. § 2208. ORDER IN OTHER CASES. A common carrier of messages, otherwise than by telegraph, must transmit messages in the order in which he receives them, except messages from agents of the United States or of this state, on public business, to which he must always give priority. Rut he may fix upon certain times for the simultaneous trans- mission of messages previously received. History; Enacted Marcli 21. 1872; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 414, held unconstitutional, see liistory, § 4 ante. 753 §2209 CIVIL CODE. [Div.IlI,l't.lV. §2209. DAMAGES WHEN MESSAGE IS REFUSED OR POSTPONED. Every person whose message is refused or postponed, contrary to the provisions of this chapter, is entitled to recover from the carrier his actual damages, and fifty dollars in addition thereto. History: Enacted March 21, 1872. 754 Tit.VIII,ch.I,art.l.] TRUSTS— NATURE, ETC. §2215 TITLE VIII. TRUSTS. [ConiiiiiHsIuuers* note. — -This title should be read in connec- tion with the title on "Uses and Trusts," §§ 847 to 871, inclusive, and it must be borne in mind that the latter relates to real property only, and "Uses and Trusts" are treated as estates. In this title "Trusts" are considered as relating to property gen- erally, and are treated in the light of obligations.] Chapter I. Trusts in General, §§2215-2244. II. Trusts for the Benefit of Third Persons. §§2250- 2289. CHAPTER I. TRUSTS IN GENERAL. Article I. Nature and Creation of a Trust. §§2215-2224. II. Obligations of Trustees, §§2228-2239. III. Obligations of Third Persons, §§2243, 2244. ARTICLE I. N.VTURE AND CREATION OK A TRUST. § 221.'). Trusts classified. §2216. Voluntary trust, what. § 2217. Involuntary trust, wliat. § 2218. Parties to the contract. § 2219. What constitutes one a trustee. § 2220. For wliat purpose a trust may be created. 755 §§2215-2219 <"IVIT. roDE. [Div.lIT.rtJV. § 2221. Voluntary trust, how created as to truster. § 2222. How created as to trustee. § 2223. Involuntary trustee, who is. § 2224. Involuntary trust resulting from negligence, etc. §2215. TRUSTS CLASSIFIED. A trust is either: 1. Voluntary; or, 2. Involuntary. HLstory: Enacted March 21, 1S72. §2216. VOLUNTARY TRUST, WHAT. A voluntary trust is an obligation arising out of a personal confidence re- posed in, and voluntarily accepted by, one for the benefit of another. History: Enacted March 21, 1872. §2217. INVOLUNTARY TRUST, WHAT. An involun- tary trust is one which is created by operation of law. History: Enacted March 21, 1872. §2218. PARTIES TO THE CONTRACT. The person whose confidence creates a trust is called the truster; the person in whom the confidence is reposed is called the trustee; and the person for whose benefit the trust is cre- ated is called the beneficiary. Hi.story: Enacted March 21, 1872. §2219. WHAT CONSTITUTES ONE A TRUSTEE. Every one who voluntarily assumes a relation of personal confidence with another is deemed a trustee, within the meaning of this chapter, not only as to the person M'ho re- poses such confidence, but also as to all person's of whose affairs he thus acquires information which was given to such 756 Til.VIH.ch.T.art.I.] rT'npoRES of TRUSTS. §§2220-2223 person in the like confidence, or over whose affairs he, by such confidence, obtains any control. History: Enacted March :il, liil'l. §2220. FOR WHAT PURPOSE A TRUST MAY BE CREATED. A trust may l)e created for any purpose for which a contract may lawfully be made, except as otherwise prescril)ed l)y the titles on uses and trusts and on transfers. Hi-story: Enacted March 21, 1S72. §2221. VOLUNTARY TRUST, HOW CREATED AS TO TRUSTER. Subject to the provisions of section eight liundred and fifty-two, a voluntary trust is created, as to the truster and beneficiary, by any words or acts of the truster, indicating with reasonable certainty: 1. An intention on the part of the truster to create a trust; and, 2. The subject, purpose, and beneficiary of the trust. History: Enacted Mai-cli i!l, 1S72. §2222. HOW CREATED AS TO TRUSTEE. Subject to the provisions of section eight hundred and fifty-two, a voluntary trust is created, as to the trustee, by any words or acts of his indicating, with reasonable certainty: 1. His acceptance of the trust, or his acknowledgment, made upon sufficient consideration, of its existence; and, 2. The subject, purpose, and l)encficiary of the trust. History: Enacted Marcli 21, 1872. §2223. INVOLUNTARY TRUSTEE, WHO IS. One who wrongfully detains a thing is an involuntary trustee thereof, for the benefit of the owner. History: Enacted March 21, 1872. 757 §2224 CIVIL CODE. [r3iv.If [,Pt.IV. §2224. INVOLUNTARY TRUST RESULTING FROM NEGLIGENCE, ETC. One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act, is, unless he has some other and bet- ter right thereto, an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it. History: Enacted March 21, 1872. 758 Tit.Vlll,ch.I,art.ll.] TRUSTEES. §§2228-2230 ARTICLE II. OBLIGATIONS OF TRUSTEES. § 2-28. Trustee's obligation to good faith. § 2229. Trustee not to use property for liis own profit. § 2230. Certain transactions forbidden. § 2231. Trustee's influence not to be used for his advantage. § 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. [For losses only, when,] § 2239. Cotrustees, how far liable for each other. §2228. TRUSTEE'S OBLIGATION TO GOOD FAITH. In all matters connected with his trust, a trustee is bound to act in the highest good faith toward his beneficiary, and may not obtain any advantage therein over the latter by the slightest misrepresentation, concealment, threat, or adverse pressure of any kind. History: Enacted March 21, 1872. § 2229. TRUSTEE NOT TO USE PROPERTY FOR HIS OWN PROFIT. A trustee may not use or deal with the trust property for his own profit, or for any other pur- pose unconnected with the trust, in any manner. History: Enacted March 21, 187 2. §2230. CERTAIN TRANSACTIONS FORBIDDEN. Neither a trustee nor any of his agents may take part in any transaction concerning the trust in which he or any one for 759 §§2231-2233 CIVIL code. [Div.ll LPt.IV. wliom he acts as agent has an interest, present or contin- gent, adverse to that of his beneficiary, except as follows: 1. When the beneficiary, having capacity to contract, with a full knowledge of the motives of the trustee, and of all other facts concerning the transaction which might afifect his own decision, and without the use of any influence on the part of the trustee, permits him to do so; 2. When the beneficiary not having capacity to contract, the proper court, upon the like information of the facts, grants the like permission; or, 3. When some of the beneficiaries having capacity to con- tract, and some not having it, the former grant permission for themselves, and the proper court for the latter, in the man- ner above prescribed. History; Enacted March 21. 1S72. - §2231. TRUSTEE'S INFLUENCE NOT TO BE USED FOR HIS ADVANTAGE. A trustee may not use the influ- ence which his position gives him to obtain any advantage from his beneficiary. History: Enacted March 21, 1S72. §2232. TRUSTEE NOT TO ASSUME A TRUST AD- VERSE TO INTEREST OF BENEFICIARY. No trustee, so long as he remains in the trust, ma}' undertake another trust adverse in its nature to the interest of his beneficiary in the subject of the trust, without the consent of the latter. History: Enacted March 21, 1872. §2233. TO DISCLOSE ADVERSE INTEREST. If a trustee acquires anj' interest, or becomes charged with any duty, adverse to the interest of his beneficiary in the sub- ject of the trust, he must immediately inform the latter there- of, and may be at once removed. History: Enacted March 21, 1872. 760 Tit.VllI,ch.J,art.II.| TRUSTEE'S FRAT'D. §§2234-2238 § 2234. TRUSTEE GUILTY OF FRAUD, WHEN. Ev- ery violation of the provisions of the preceding- sections of this article is a fraud against the l)eneficiary of a trust. Hiwtorj-: Enacted Maich :;], ISTl'. §2235. PRESUMPTION AGAINST TRUSTEES. All transactions between a trustee and his beneficiary during the existence of the trust, or while the influence acquired by the trustee remains, by which he obtains any advantage from his beneficiary, are presumed to be entered into by the latter without sufficient consideration, and under undue influence. History: Enacted March 21, 1872. §2236. TRUSTEE MINGLING TRUST PROPERTY WITH HIS OWN. A trustee who wilfully and unneces- sarily mingles the trust property with his own, so as to con- stitute himself in appearance its absolute owner, is liable for its safety in all events, and for the value of its use. History: Enacted March 21, 1S72; amended by Code Com- mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 415, held unconstitutional, see history, § 4 ante; amendment re- enacted March 21, 1905, Stats, and .\mdts. 1905, p. 615. §2237. MEASURE OF LIABILITY FOR BREACH OF TRUST. A trustee who uses or disposes of the trust prop- erty, contrary to section twenty-two hundred and twenty- nine, may, at the option of the beneficiary, be required to account for all profits so made, or to pay the value of its use, and, if he has disposed thereof, to replace it, witli its fruits, or to account for its proceeds, with interest. History: Enacted March 21, 1S72. §2238. SAME. [FOR LOSSES ONLY, WHEN.] A trustee who uses or disposes of tlie trust property in any manner not authorized by the trust, l)ut in good faiih, and 761 §2239 «'ivn. code. f Div.IIl.Pt.I V. with intent to serve the interests of tlie l)eneficiary, is liable only to make good whatever is lost to the beneficiary by his error. History: Enacted Maich 21, 1ST2. § 2239. COTRUSTEES, HOW FAR LIABLE FOR EACH OTHER. A trustee is responsible for the wrongful acts of a cotrustee to which he consented, or which, by his negli- gence, he enabled the latter to commit, but for no others. History: Enactecl March 21, 1872. 762 Tit.\III,ch.I,art.III.] INVOLUNTARY TRUST. §§2243.2244 ARTICLE III. OBLIGATIONS OF THIRD PERSONS. § 2243. Third person, when involuntary trustee. § 2244. When third person must see to application of trust property. §2243. THIRD PERSON, WHEN INVOLUNTARY TRUSTEE. Every one to whom property is transferred in violation of a trust, holds the same as an involuntary trustee under such trust, unless he purchased it in good faith, and for a valuable consideration. HLstory: Enacted March 21, 1872. §2244. WHEN THIRD PERSON MUST SEE TO AP- PLICATION OF TRUST PROPERTY. One who actually and in good faith transfers anj' money or other propertj' to a trustee, as such, is not bound to see to the application thereof, and his rights can in no way be prejudiced by a misapplication thereof by the trustee. Other persons must, at their peril, see to the proper application of money or other property paid or delivered by them. History: Enacted Marcli 21, 1872. 763 §§2250,2251 CIVIL code. [Div.lII.Pt.IV. CHAPTER II. TRUSTS FOR THE BENEFIT OF THIRD PERSONS. Article I. Nature and Creation of the Trust, §§ 2250-2254. II. Obligations of Trustees, §§2258-2263. III. Powers of Trustees, §§2267-2269. IV. Rights of Trustees, §§2273-2275. V. Termination of the Trust, §§2279-2283. \ I. Succession or Appointment of New Trustees, §§ 2287-2289. ARTICLE I. NATURE AND CREATION OF THE TRUST. § 2250. Who are trustees within the scope of this c'napter. § 2251. Creation of trust. § 2252. Trustees appointed by court. § 2253. Declaration of trust. S 2254. Same. [Declarations before acceptance.] §2250. WHO ARE TRUSTEES WITHIN SCOPE OF THIS CHAPTER. The provisions of this chapter apply only to express trusts, created for the benefit of another than the truster, and in which the title to the trust property is vested in the trustee: not including, however, those of executors, administrators, and guardians, as such. History: Enacted Marcli 21, 1S72. §2251. CREATION OF TRUST. The mutual consent of a truster and trustee creates a trust of which the bene- ficiary may take advantage at any time prior to its rescission. History: Enacted March 21, 1872. 764 Tit.VIII,ch.II,art.I.] declaration of. §§2252-2254 §2252. TRUSTEES APPOINTED BY COURT. W Iicn a trustee is appointed by a court or public officer, as such, such court or officer is the truster, within the meaning of the last section. History: Enacted March 21, 1872. §2253. DECLARATION OF TRUST. The nature, ex- tent, and object of a trust are expressed in the declaration of trust. History: Enacted March 21, 1S72. §2254. SAME. [DECLARATION BEFORE ACCEPT- ANCE.] All declarations of a truster to his trustees, in re- lation to the trust, before its acceptance by the trustees, or any of them, are to be deemed part of the declaration of the trust, except that when a declaration of trust is made in writ- ing, all previous declarations by the same truster are merged therein. History: Enacted March 21, 1S72. 765 §§2258-2260 civil code. | Div.lII,Pt.IV. ARTICLE II. OBLIGATIONS OF TRUSTEES. § 225S. Trustees must obey declaration of trust. § 2259. Degree of care and diligence in execution of trust. § 2260. Duty of trustee as to appointment of successor. § 2261. Investment of money by trustee. § 2262. Interest, simple or compound, on omission to invest trust moneys. § 2263. Purchase by trustee of claims against trust fund. § 2258. TRUSTEES MUST OBEY DECLARATION OF TRUST. A trustee must fulfil the purpose of the trust, as declared at its creation, and must follow all the directions of the truster given at that time, except as modified by the consent of all parties interested, in the same manner, and to the same extent, as an employee. History: Enacted March 21, 1872. § 2259. DEGREE OF CARE AND DILIGENCE IN EX- ECUTION OF TRUST. A trustee, whether he receives any compensation or not, must use at least ordinary care and dili- gence in the execution of his trust. History: Enacted March 21, 1872. §2260. DUTY OF TRUSTEE AS TO APPOINTMENT OF SUCCESSOR. If a trustee procures or assents to his discharge from his office, before his trust is fully executed, he must use at least ordinary care and diligence to secure the appointment of a trustworthy successor before accepting his own final discharge. History-: Enacted March 21, 1872. 766 Tit.VIII.ch.il. art. 11. 1 IXVRSTMKNT. rXTERKST. §§2261-2263 §2261. INVESTMENT OF MONEY BY TRUSTEE. A trustee must invest money received by him under the trust, as fast as he collects a sufiicient amount, in such manner as to afford reasonable security and interest for the same. Historj-: Enacted March 21, 1S7 2. §2262. INTEREST, SIMPLE OR COMPOUND, ON OMISSION TO INVEST TRUST MONEYS. If a trustee omits to invest the trust moneys according to the last sec- tion, he must pay simple interest thereon, if such omission is negligent merely, and compound interest if it is wilful. History: Enacted March 21, 1872. §2263. PURCHASE BY TRUSTEE OF CLAIMS AGAINST TRUST FUND. A trustee cannot enforce any claim against the trust property which he purchases after or in contemplation of his appointment as trustee; but he may be allowed, by any competent court, to charge to the trust property what he has in good faith paid for the claim, upon discharging the same. Hintory: Enacted March 21, 1872. 767 §§2267-2269 <^ivn. CODE. [Div.in,Pt.IV. ARTICLK III. POWERS OF TRUSTEES. § 2267. Trustee's powers as agent. § 226S. All must act. § 2269. Discretionary powers. §2267. TRUSTEE'S POWER AS AGENT. A trustee is a general agent for the trust property. His authority is such as is conferred upon him by the declaration of trust and by this chapter, and none other. His acts, within the scope of his authority, bind the trust property to the same extent as the acts of an agent bind his principal. History: Enacted March 21, 1872. §2268. ALL MUST ACT. Where there are several co- trustees, all must unite in any act to bind the trust property, imless the declaration of trust otherwise provides. History: Enacted March 21, 1872. §2269. DISCRETIONARY POWERS. A discretionary power conferred upon a trustee is presumed not to be left to his arbitrary discretion, but may be controlled by the proper court if not reasonably exercised, unless an absolute discretion is clearly conferred by the declaration of trust. History: Enacted March 21, 1872. 768 Tit.VIII,ch.II,art.IV.] INDEMNIFICATION. §§2273-2275 ARTICLE IV. ■ RIGHTS OF TRUSTEES. § 2273. Indemnification of trustee. § 2274. Compensation of trustee. § 2275. Involuntary trustee. §2273. INDEMNIFICATION OF TRUSTEE. A trus- tee is entitled to the repayment, out of the trust property, of all expenses actually and properly incurred by him in the performance of his trust. - He is entitled to the repayment of even unlawful expenditures, if they were productive of ac- tual benefit to the estate. History: Enacted March 21, 1S72. §2274. COMPENSATION OF TRUSTEE. Except as provided in section seventeen hundred of the Code of Civil Procedure, when a declaration of trust is silent upon the subject of compensation the trustee is entitled to the same compensation as an executor. If it specifies the amount of his compensation, he is entitled to the amount thus specified and no more. If it directs that he shall be allowed a com- pensation, but does not specify the rate or amount, he is entitled to such compensation as may be reasonable .under the circumstances. If there are two or more trustees the compensation shall be apportioned among the trustees ac- cording to the services rendered by them respectively. History: Enacted March 21., 1872; amended March 19, 1889, Stats, and Amdts. 1889, p. 334; March 10, 1909, Stats, and Amdts. 1909, p. 252. §2275. INVOLUNTARY TRUSTEE. An involuntary trustee, who becomes such through his own fault, has none of the rights mentioned in this article. HLstory: Enacted March 21, 1872. 25 769 §§ 2279-2282 r'TVIT. CODK. [Div.Tll,Pt.IV. § 1:279 § 2280 § 2281 § 2282 § 2283 ARTICLE V. TERMINATION OF THE TRUST. Trust, how extinguished. Not revocable. Trustee's office, how vacated. Trustee, how discharged. Removal of trustee by court. §2279. TRUST, HOW EXTINGUISHED. A trust is extinguished by the entire fulfihnent of its object, or by such object becoming- impossible or unlawful. Hi.story: Enacted March 21, 1872. §2280. NOT REVOCABLE. A trust cannot be revoked by the truster after its acceptance, actual or presumed, by tlie trustee and beneficiaries, except by the consent of all the beneficiaries, unless the declaration ot trust reserves a power of revocation to the truster, and in that case the pow- er must be strictly pursued. HLstory: Enacted March 21, 1872. §228L TRUSTEE'S OFFICE, HOW VACATED. The office of a trustee is vacated: 1. By his death; or. 2. By his discharge. History: Enacted March 21, 1872. §2282. TRUSTEE, HOW DISCHARGED. A can be discharged from his trust only as follows: 1. By the extinction of the trust; 2. By the completion of his duties under the trust; 770 trustee Tit.VIII.ch.II.art.V.] DISCHARGE. REMOVAL. §2283 3. By such means as may be prescribed by the declaration of trust; 4. By the consent of the beneficiary, if he have capacity to contract; 5. By the judgment of a competent tribunal, in a direct proceeding for that purpose, that he is of unsound mind; or, 6. By the superior court. History: Enacted March 21, 1872; amended February 15, 1883, Stats, and Amdts. 1883, p. 3. §2283. REMOVAL OF TRUSTEE BY COURT. 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. History: Enacted March 21, 1872; amended April 6, 18SU, Code Amdt.s. 1880 (C. C. pt.), p. 8. 771 §§2287,2288 civil code. [Div.III,Pt.l V. ARTICLE VI. SUCCESSION OR APPOINTMENT OF NEW TRUSTEES. § 2287. Vacant trusteeship filled by court. § 2288. Survivorship between cotrustees. §2289. Superior court as trustee. §2287. VACANT TRUSTEESHIP FILLED BY COURT. [NOMINATION BY CESTUI QUE TRUST.] The superior court must appoint a trustee whenever there is a vacancy, and the declaration of trust does not provide a practical method of appointment. In all cases of appoint- ment of any trustee or trustees by any court, if the cestui que trustent, or any one of them are of the age of fourteer. years, they, or the one or more of them of the age of four- teen years, may make nomination to the court, and unless such nominee or nominees are incompetent, upon one or more of the grounds of incompetency specified in section one thousand three hundred and fifty of the Code of Civil Procedure of California, to discharge the duties of trustee, the court must appoint such nominee, or nominees, as trustee, or trtistees as the case may be. History: Enacted March 21, 1872; amended April 6, 1880, Code Amdts. 1880 (C. C. pt.), p. 8; February 2.5, 1911, Stats, and Amdts. 1911, p. 79; June 6, 1913, Stats, and Amdts. 1913, p. 393. In eHfect August 10, 1913. §2288. SURVIVORSHIP BETWEEN COTRUSTEES. On the death, renunciation, or discharge of one of several cotrustees the trust survives to the others. History: Enacted March 21, 1872. 772 Tit.VIII,ch.II,art.VI.] COURT as trustee. §2289 §2289. SUPERIOR COURT AS TRUSTEE. When a trusts exists without any appointed trustee, or where all the trustees renounce, die, or are discharged, the superior court of the county where the trust property, or some portion thereof, is situated, must appoint another trustee, and direct the execution of the trust. The court may, in its discretion, appoint the original number, or any less number of trustees. History: Enacted March 21, 1872; amended April 6, 1880, Code Amdts. 18S0 (C. C. pt.), p. 8. 116 §2295 CIVIL CODE. [Div.lII.Pt.lV. TITLE IX. AGENCY. LCoiiiiiii.sMiuiiers' iiote. — "Under this head the representation uf one person by anotlier is the only subject treated. Tlie rights acquired by tliird persons against both the principal and the agent are here stated. The mutual relations of principal and agent are a branch of service, and are defined in the title on that subject. So far as these relations create a mutual trust, they are regulated by the title on trusts."] Chapter I. Agency in General, §§ 2295-2356. II. Particular Agencies, §§2362-2389. 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. 2356. 774 Tit.IX.ch.I.art.T.l DKFTNTTlox— ktxds. §§2295-2299 ARTICLK 1. DEFINITION OF ACJKNOY. § 2295. Agency, what. § 2296. Who may appoint, and who maj- be an agent. § 2297. Agents, general or special. § 2298. Agency, actual or ostensible. § 2299. Actual agency. § 2300. Ostensible agency. §2295. AGENCY, WHAT. .\n agent is one who repre,- sents another, called the principal, in dealings with third per- sons. Such representation is called agency. History: Enacted Mai'cli 21, 1S;72. §2296. WHO MAY APPOINT, AND WHO MAY BE AN AGENT. Any person liaving capacity to contract may appoint an agent, and any person may be an agent. History: Enacted Marcli 21, 1S72. §2297. AGENTS, GENERAL OR SPECIAL. An agent for a particular act or transaction is called a special agent. All others are general agents. History: Enacted Marcli 21, 1S72. §2298. AGENCY, ACTUAL OR OSTENSIBLE. An agency is either actual or ostensible. History: Enacted March 21, 1872. §2299. ACTUAL AGENCY. .\n agency is actual when tlie agent is really employed liy the principal. Hislory: Enacted .March 21, 1X72. 775 §2300 CIVIL CODE. [Div.III.Pt.IV. §2300. OSTENSIBLE AGENCY. An agency is osten- sible when the principal intentionally, or by want of ordi- nary care, causes a third person to believe another to be his agent who is not really employed by him. History: Enacted March 21, 1872. 776 Tit.IX,ch.I,art.II.] authority OF AGENTS. §§2304,2305 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 vi^orlc injury to third persons. § 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 restric- tions upon if. § 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. § 2322. Exceptions to general authority. § 2323. AVhat included in authority to sell personal property. § 2324. What included in authority to sell real property. § 2325. Authority of general agent to receive price of property. § 2326. Authority of special agent to receive price. §2304. WHAT AUTHORITY MAY BE CONFERRED. .A.n agent may be authorized to do any acts which his prin- cipal might do, except those to which the latter is bound to give his personal attention. History: Enacted March 21, 1872. §2305. AGENT MAY PERFORM ACTS REQUIRED OF PRINCIPAL BY CODE. Every act which, according §§2306-2310 CIVIL CODE. [Div.Ul.Pt.IV. to this code, may be done l)j^ or to any person, may be done Ijy or to the agent of such person for that purpose, unless a contrary intention clearly appears. llisiory: Enacted Marrh ::], ISTii. §2306. AGENT CANNOT HAVE AUTHORITY TO DEFRAUD PRINCIPAL. An agent can never have au- thority, either actual or ostensible, to do an act which is, and is known or suspected by the person with whom he deals, to be a fraud upon the principal. History: Enacted March 21, 1872. §2307. CREATION OF AGENCY. An agency may be created, and an authority may be conferred, by a precedent authorization or a subsequent ratification. History: Enacted March 21, 1872. §2308. CONSIDERATION UNNECESSARY. A con- sideration is not necessary to make an authority, whether precedent or subsequent, binding upon the principal. Hi-story: Enacted March 21. 1872. §2309. FORM OF AUTHORITY. An oral authoriza- tion is sufficient for any purpose, except that an authority to enter into a contract required by law to be in writing can only be given by an instrument in writing. History: Enacted March 21, 1S72. §2310. RATIFICATION OF AGENT'S ACT. A ratifi- cation can be made only in the manner that would have been necessary to confer an original authority for the act ratified, or where an oral authorization would suffice, by accepting" or retaining the benefit of the act, w'ith notice thereof. Hi-story: Enacted March 21, 1872. 778 Tit.IX.ch.I.art.lT.l nATIFTCATTON. S§ 231 1-2316 §2311. RATIFICATION OF PART OF A TRANSAC- TION. Ratification of part of an indivisible transaction is a ratification of the whole. History: Enacted March 21, 1872. §2312. WHEN RATIFICATION VOID. A ratification is not valid unless, at the time of ratifying the act done, the principal has power to confer authoritj' for such an act. Hi.story: Enacted March 21, 1S72. § 2313. RATIFICATION NOT TO WORK INJURY TO THIRD PERSONS. Xo unauthorized act can be made valid, retroactively, to the prejudice of third persons, without their consent. History: Enacted March 21, lcST2. §2314. RESCISSION OF RATIFICATION. A ratifica- tion may be rescinded when made without such consent as is required in a contract, or with an imperfect knowledge of the material facts of the transaction ratified, but not other- wise. History: Enacted Marcli 21, 1872. §2315. MEASURE OF AGENT'S AUTHORITY. An agent has such authority as the principal, actually or osten- sibly, confers upon him. History: Enacted March 21, 1S72. §2316. ACTUAL AUTHORITY, WHAT. Actual au- thority is such as a principal intentionally confers upon the agent, or intentionally, or by want of ordinary care, allows the agent to believe himself to possess. History; Enacted March 21, 1872. 779 §§2317-2320 CIVIL code. [Div.III,Pt.IV. §2317. OSTENSIBLE AUTHORITY, WHAT. Osten- sible authority is such as a principal, intentionally or by want of ordinary care, causes or allows a third person to believe the agent to possess. History: Enacted March 21, 1872. §2318. AGENT'S AUTHORITY AS TO PERSONS HAVING NOTICE OF RESTRICTIONS UPON IT. Ev- ery agent has actuallj^ such authority as is defined by this title, unless specially deprived thereof by his principal, and has even then such authority ostensibly, except as to per- sons who have actual or constructive notice of the restriction upon his authority. History: Enacted March 21, 1872. §2319. AGENT'S NECESSARY AUTHORITY. An agent has authority: 1. To do everything necessarj^ or proper and usual, in the ordinary course of business, for efifecting the purpose of his agency; and, 2. To make a representation respecting any matter of fact, not including the terms of his authority, but upon which his right to use his authority depends, and the truth of which cannot be determined by the use of reasonable diligence on the part of the person to whom the representation is made. History: Enacted March 21, 1872. §2320. AGENT'S POWER TO DISOBEY INSTRUC- TIONS. An agent has power to disobey instructions in dealing with the subject of the agenc5% in cases where it is clearly for the interest of his principal that he should do so, and there is not time to communicate with the principal. History: Enacted March 21, 1872. 780 Tit.IX.ch.I.art.IL] AUTHORITY— EXCEPTIONS. §§2321-2325 §2321. AUTHORITY TO BE CONSTRUED BY ITS SPECIFIC, RATHER THAN BY ITS GENERAL TERMS. When an authority is given partly in general and partly in specific terms, the general authority gives no higher powers than those specifically mentioned. History: Enacted March 21, 1S72. §2322. EXCEPTIONS TO GENERAL AUTHORITY. An authority expressed in general terms, however broad, does not authorize an agent: 1. To act in his own name, unless it is the usual course of business to do so; 2. To define the scope of his agency; or, 3. To do any act which a trustee is forbidden to do by article two, chapter one, of the last title. History: Enacted March 21, 1ST2. §2323. WHAT INCLUDED IN AUTHORITY TO SELL PERSONAL PROPERTY. An authority to sell per- sonal property includes authority to warrant the title of the principal, and the quality and quantity of the property. History: Enacted March 21, 1872. §2324. WHAT INCLUDED IN AUTHORITY TO SELL REAL PROPERTY. An authority to sell and con- vey real property includes authority to give the usual cov- enants of warranty. History: Enacted March 21, 1872. §2325. AUTHORITY OF GENERAL AGENT TO RE- CEIVE PRICE OF PROPERTY. A general agent to sell, who is intrusted by the principal with the possession of the thing sold, has authority to receive the price. History: Enacted March 21, 1872. 781 §2326 OTVIT. CODE. fDiv.ni.Pt.IV. §2326. AUTHORITY OF SPECIAL AGENT TO RE- CEIVE PRICE. A special agent to sell has authority to receive the price on delivery of the thing sold, but not after- wards. History: Enacted March 21, 1872. 782 Tit.IX,ch.l,art.III.J obligations. §§2330,2331 ARTICLE III. MUTUAL OBLIGATIONS OF PRINCIPALS AND THIKD PERSONS. § 2330. Principal, liow affected hj- act.s of agent williin the .scope of his authority. § 2331. Principal, when bound by incomplete e,\ei-ution of au- thority. § 2332. Notice to agent, when notice to principal. § 2333. Obligation of principal when agent exceeds authority. § 2334. For acts done under a merely ostensible authority. § 2335. When exclusive credit is given to agent. § 2336. Rights of person who deals with agent without knowl- edge of agency. § 2337. Instrument intended to bind principal does bind him. § 2338. Principal's responsibility for agent's negligence or omission. § 2339. Principal's responsibility for wrongs wilfully commit- ted by the agent. §2330. PRINCIPAL, HOW AFFECTED BY ACTS OF AGENT WITHIN THE SCOPE OF HIS AUTHORITY. An agent represents his principal for all purposes within the scope of his actual or ostensible authority, and all the rights and liabilities which would accrue to the agent from trans- actions within sucli limit, if they had l)een entered into on his own account, accrue to the principal. History: Enacted March 21, 1S72. §233L PRINCIPAL, WHEN BOUND BY INCOM- PLETE EXECUTION OF AUTHORITY. A principal is l)ound by an incomplete execution of an authority, when it is consistent with the whole purpose and scope thereof, but not otherwise. History: Enacted March 21, 1872. 783 §§2332-2336 civil code. [Div.III,Pt.IV. §2332. NOTICE TO AGENT, WHEN NOTICE TO PRINCIPAL. As against a principal, both principal and agent are deemed to have notice of whatever either has no- tice of, and ought, in good faith and the exercise of ordinary care and diligence, to communicate to the other. History: Enacted March 21, 1872. §2333. OBLIGATION OF PRINCIPAL WHEN AGENT EXCEEDS HIS AUTHORITY. When an agent exceeds his authority, his principal is bound by his authorized acts so far only as they can be plainly separated from those which are unauthorized. History: Enacted March 21, 1872. §2334. FOR ACTS DONE UNDER A MERELY OS- TENSIBLE AUTHORITY. A principal is bound by acts of his agent, under a merely ostensible authority, to those per- sons only who have in good faith, and without want of or- dinary care, incurred a liability or parted with value, upon the faith thereof. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 415. held unconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 616. §2335. WHEN EXCLUSIVE CREDIT IS GIVEN TO AGENT. If exclusive credit is given to an agent by the person dealing with him, his principal is exonerated by pay-^ ment or other satisfaction made by him to his agent in good faith, before receiving notice of the creditor's election to hold him responsible. History: Enacted March 21, 1872. §2336. RIGHTS OF PERSON WHO DEALS WITH AGENT WITHOUT KNOWLEDGE OF AGENCY. One 784 Tit.IX,ch.I,art.III.J RESPONSIBILITY. §§2337-2339 who deals with an agent without knowing or having reason to believe that the agent acts as such in the transaction, may set ofif against any claim of the principal arising out of the same, all claims which he might have set off against the agent before notice of the agency. History: Enacted March 21, 1872. §2337. INSTRUMENT INTENDED TO BIND PRIN- CIPAL DOES BIND HIM. An instrument within the scope of his authority by which an agent intends to bind his prin- cipal, does bind him if such intent is plainly inferable from the instrument itself. History: Enacted March 21, 1S72. §2338. PRINCIPAL'S RESPONSIBILITY FOR AGENT'S NEGLIGENCE OR OMISSION. Unless re- quired by or under the authority of law to employ that par- ticular agent, a principal is responsible to third persons for the negligence of his agent in the transaction of the busi- ness of the agency, including wrongful acts committed by such agent in and as a part of the transaction of such busi- ness, and for his wilful omission to fulfil the obligations of the principal. History: Enacted March 21, 1872. §2339. PRINCIPAL'S RESPONSIBILITY FOR WRONGS WILFULLY COMMITTED BY THE AGENT. A principal is responsible for no other wrongs committed by his agent than those mentioned in the last section, unless he has authorized or ratified them, even though they are com- mitted while the agent is engaged in his service. History: Enacted March 21, 1872. 785 §§2342-2344 cjvil code. [Div.ll l.Pt.l V. ARTICLE IV. OBLIGATIONS OF AGENTS TO THIKD PERSONS. § 2342. Warranty of authority. § 234.S. Agent's responsibility to tliird person.s. § 2344. Obligation of agent to surrender property to third per- son. § 2345. Agent not liaving capacity to contract. §2342. WARRANTY OF AUTHORITY. One who as- sumes to act as an agent thereby warrants, to all who deal with him in that capacity, that he has the authority which he assumes. History: Enacted March 21, 1872. §2343. AGENT'S RESPONSIBILITY TO THIRD PERSONS. One who assumes to act as an agent is respon- sible to third persons as a principal for his acts in the course of his agency, in any of the following cases, and in no others: 1. When, with his consent, credit is given to him person- ally in a transaction; 2. When he enters into a written contract in the name of his principal, without believing, in good faith, that he has authority to do so; or, 3. When his acts are wrongful in their nature. History: Enacted March 21, 1872. §2344. OBLIGATION OF AGENT TO SURRENDER PROPERTY TO THIRD PERSON. If an agent receives anything for the benefit of his principal, to the possession of which another person is entitled, he must, on demand, surrender it to such person, or so much of it as he has un- der his control at the time of demand, on being indemnified 786 Til.lX.ch.I.art.IV.I rONTRACTS OF AGENT. §2345 for any advance which he has made to his principal, in good faith, on account of the same; and is responsible therefor, if, after notice from the owner, he delivers it to his principal. HiMtory: Enacted March 21, 1S72. §2345. AGENT NOT HAVING CAPACITY TO CON- TRACT. The provisions of this article are subject to the provisions of part one, division first, of this code. HLstory: Enacted March 21, 1872. 787 §§2349-2351 civil code. [Div.III,Pt.IV. ARTICLE V. DELEGATION OF AGENCY. § 2349. Agent's delegation of his powers. § 2350. Agent's unautliorized employment of subagent. § 2351. Subagent rightfully appointed represents principal. §2349. AGENT'S DELEGATION OF HIS POWERS. An agent, unless specially forbidden by his principal to do so, can delegate his powers to another person in any of the following cases, and in no others: 1. When the act to be done is purely mechanical; 2. When it is such as the agent cannot himself, and the subagent can lawfully perform; 3. When it is the usage of the place to delegate such pow- ers; or, 4. When such delegation is specially authorized by the principal. History; Enacted March 21, 1S72. §2350. AGENT'S UNAUTHORIZED EMPLOYMENT OF SUBAGENT. If an agent employs a subagent without authority, the former is a principal and the latter his agent, and the principal of the former has no connection with the latter. History: Enacted March 21, 1S72. §235L SUBAGENT RIGHTFULLY APPOINTED REPRESENTS PRINCIPAL. A subagent, lawfully ap- pointed, represents the principal in like manner with the or- iginal agent; and the original agent is not responsible to third persons for the acts of the subagent. History: Enacted March 21, 1872. 788 Tit.IX,ch.I,art.VI.] termination. §§2355,2356 ARTICLE VI. TERMINATION OF AGENCY. § 2355. Termination of ag^ency. § 2356. Same. [Where coupled with an interest.] §2355. TERMINATION OF AGENCY. An agency is terminated, as to every person having notice thereof, by: 1. The expiration of its term; 2. The extinction of its subject; 3. The death of the agent; 4. His renunciation of the agency; or, 5. The incapacity of the agency [agent] to act as such. History: Enacted March 21, 1872. §2356. SAME. [WHERE COUPLED WITH AN IN- TEREST.] Unless the power of an agent is coupled with an interest in the subject of the agency, it is terminated, as to every person having notice thereof, by; 1. Its revocation by the principal; 2. His death; or, 3. His incapacity to contract. History: Enacted March 21, 1872. 789 §2362 nT2. §2403. PARTNER'S SHARE IN PROFITS AND LOSSES. In the absence of anj- agreement on the subject the shares of partners in the profit or loss of the business are equal, and the share of each in the partnership property is the value of his original contribution, increased or dimin- ished by his share of profit or loss. History: Enacted March 21, 1872. §2404. WHEN DIVISION OF LOSSES IMPLIED. An agreement to divide the profits of a business implies an agreement for a corresponding division of its losses, unless it is otherwise expressly stipulated. History: Enacted March 21, 1872. 799 §§2405,2406 civil code. [Div.III,Pt.IV. §2405. PARTNER MAY REQUIRE APPLICATION OF PARTNERSHIP PROPERTY TO PAYMENT OF DEBTS. Each member of a partnership may require its property to be applied to the discharge of its debts, and has a lien upon the shares of the other partners for this purpose, and for the payment of the general balance if any due to him. History: Enacted March 21, 1872. §2406. WHAT PROPERTY IS PARTNERSHIP PROPERTY BY PRESUMPTION. Property, whether real or personal, acquired with partnership funds, is presumed to be partnership property. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 415, held unconstitutional, see history, § 4 ante. 800 Tit.X.ch.I.art.lII.] OBLIGATIONS. §§2410-2412 ARTICLE 111. MUTUAL OBLIGATION OF PARTNERS. § 2410. Partners trustees for each other. § 2411. Good faith to be observed between them. § 2412. Mutual liability of partners to account. § 2411^. No compensation for services to firm. §2410. PARTNERS TRUSTEES FOR EACH OTHER. The relations of partners are confidential. They are trustees for each other within the meaning of chapter one of the title on trusts, and their obligations as such trustees are defined by that chapter. History: Enacted March 21, 1872. §2411. GOOD FAITH TO BE OBSERVED BETWEEN THEM. In all proceedings connected with the formation, conduct, dissolution, and liquidation of a partnership, every partner is bound to act in the highest good faith toward his copartners. He may not obtain any advantage over them in the partnership affairs by the slightest misrepresentation, concealment, threat, or adverse pressure of any kind. History: Enacted March 21, 1S72. §2412. MUTUAL LIABILITY OF PARTNERS TO ACCOUNT. Each member of a partnership must account to it for everything that he receives on account thereof, and is entitled to reimbursement therefrom for everything that he properly expends for the benefit thereof, and to be in- demnified thereby for all losses and risks which he neces- sarily incurs on its behalf. History: Enacted March 21, 1S72. -« 801 §2413 CIVIL CODE. [Div.III.Pt.IV. §2413. NO COMPENSATION FOR SERVICES TO FIRM. A partner is not entitled to any compensation for services rendered by him to the partnership. History: Enacted March 21, 1872. 802 Tit.X,ch.I,art.IV.] renunciation. §§2417,2418 ARTICLE IV. RENUNCIATION OF PARTNERSHIP. § 2417. Renunciation of future profits exonerates from liability. S 241S. Effect of renunciation. §2417. RENUNCIATION OF FUTURE PROFITS EX- ONERATES FROM LIABILITY. A partner may exon- erate himself from all future liability to a third person, on account of the partnership', by renouncing, in good faith, all participation in its future profits, and giving notice to such third person, and to his own copartners, that he has made such renunciation, and that, so far as may be in his power, he dissolves the partnership and does not intend to be liable on account thereof for the future. History: Enacted March 21, 1872. §2418. EFFECT OF RENUNCIATION. After a part- ner has given notice of his renunciation of the partnership, he cannot claim any of its subsequent profits, and his co- partners may proceed to dissolve the partnership. History: Enacted March 21, 1872. 803 §2424 CIVIL CODE. [Div.lII.Pt.lV. CHAPTER II. GENERAL PARTNERSHIP. Article I. What is a General Partnership, §2424. II. Powers and Authority of Partners, §§2428-2431. III. Mutual Obligations of Partners, §§2435-2438. IV. Liability of Partners, §§2442-2445. V. Termination of Partnership, §§ 2449-2454. VI. Liquidation, §§2458-2462. VII. Of the Use of Fictitious Names, §§2466-2472. ARTICLE I. WHAT IS A GENERAL PARTNERSHIP. § 2424. General partnership, what. §2424. GENERAL PARTNERSHIP, WHAT. Every partnership that is not formed in accordance with the law concerning special or mining partnerships, and every special partnership, so far only as the general partners are con- cerned, is a general partnership. History: Enacted March 21, 1S72. 804 Tit.X,ch.lI.art.lI.] AUTHORITY. §§2428-2430 ARTICLE II. POWERS AND AUTHORITY OF PARTNERS. § 2428. Power of majority of partners. § 2429. Authority of Individual partner. § 2430. What authority partner has not. § 2431. Partner's acts in bad faith, when ineffectual. §2428. POWER OF MAJORITY OF PARTNERS. Unless otherwise expressly stipulated, the decision of the majoritj' of the members of a general partnership binds it in the conduct of its business. History: Enacted March 21, 1872. §2429. AUTHORITY OF INDIVIDUAL PARTNER. Every general partner is agent for the partnership in the transaction of its business, and has authority to do whatever is necessary to carry on such business in the ordinary man- ner, and for this purpose may bind his copartners by an agreement in writing. History: Enacted March 21, 1872. §2430. WHAT AUTHORITY PARTNER HAS NOT. A partner, as such, has not authority to do any of the fol- lowing acts, unless his copartners have wholl}' abandoned the business to him, or are incapable of acting: 1. To make an assignment of the partnership property or any portion thereof to a creditor, or to a third person in trust for the benefit of a creditor or of all creditors; 2. To dispose of the good will of the business; 3. To dispose of the whole of the partnership proi'erty at once, unless it consists entirely of merchandise; 805 §2431 CIVIL CODE. [Div.III.Pt.IV. 4. To do any act which would make it impossible to carry on the ordinary business of the partnership; 5. To confess a judgment; 6. To submit a partnership claim to arbitration; 7. To do any other act not within the scope of the preced- ing section. History: Enacted March 21, 1872. §2431. PARTNER'S ACTS IN BAD FAITH, WHEN INEFFECTUAL. A partner is not bound by any act of a copartner, in bad faith toward him, though within the scope of the partner's powers, except in favor of persons who have in good faith parted with value in reliance upon such act. History: Enacted March 21, 1872. 806 Tit.X,ch.II,art.III.] OBLIGATIONS. §§2435-2438 ARTICLE III. MUTUAL OBLIGATIONS OF PARTNERS. § 2435. Profits of individual partner. § 2436. In what business partner may not engage. § 2437. In wliat he may engage. § 2438. Must account to firm for profits. §2435. PROFITS OF INDIVIDUAL PARTNER. All profits made by a general partner, in the course of any busi- ness usually carried on by the partnership, belong to the firm. History: Enacted March 21, 1872. §2436. IN WHAT BUSINESS PARTNER MAY NOT ENGAGE. A general partner, who agrees to give his per- sonal attention to the business of the partnership, may not engage in any business v^rhich gives him an interest adverse to that of the partnership, or w^hich prevents him from giv- ing to such business all the attention which would be ad- vantageous to it. History: Enacted March 21, 1872. § 2437. IN WHAT HE MAY ENGAGE. A partner may engage in any separate business, except as otherwise pro- vided by the last two sections. History: Enacted March 21, 1872. §2438. MUST ACCOUNT TO FIRM FOR PROFITS. A general partner transacting business contrary to the pro- visions of this article may be required by any copartner to account to the partnership for the profits of such busi- ness. History: Enacted Marcli 21, 1872. 807 §§2442-2445 oivii. code. IDiv.III.Pt.IV. ARTICLE IV. LIABILITY OF PARTNERS. § 2442. Liability of partners to third person. § 2443. Liability for each other's acts as agents. § 24 44. Liability of one held out as partner. § 2445. No one liable as partner unless held out as such. §2442. LIABILITY OF PARTNERS TO THIRD PER- SONS. Every general partner is liable to third persons for all the obligations of the partnership, jointly with his co- partners. History: Enacted March 21, 1872. §2443. LIABILITY FOR EACH OTHER'S ACTS AS AGENTS. The liability of general partners for each other's acts is defined by the title on agency. History: Enacted March 21, 1872. §2444. LIABILITY OF ONE HELD OUT AS PART- NER. Any one permitting himself to be represented as a partner, general or special, is liable, as such, to third persons to whom such representation is communicated, and who, on ihc faith thereof, give credit to the partnership. History: Enacted March 21, 1872. §2445. NO ONE LIABLE AS PARTNER UNLESS HELD OUT AS SUCH. No one is liable as a partner who is not such in fact, except as provided in the last section. History: Enacted March 21. 1S72. 808 Tit.X.ch.Il.art.V.] DISS0LUTI0NM)K. §§2449-2451 ARTICLE V. TERMINATION OF PARTNERSHIP. S 2449. Duiation of partnership. § 24.50. Total dissolution of partnership. § 2451. Partial dissolution. § 2452. Partner entitled to dissolution. § 2453. Notice of termination. § 2454. Notice by change of name. §2449. DURATION OF PARTNERSHIP. If no term is prescribed bj- agreement for its duration, a general part- nership continues until dissolved by a partner or by operation of law. HLsfory: Enacted March 2], 1S72. §2450. TOTAL DISSOLUTION OF PARTNERSHIP. A general partnership is dissolved as to all the partners: 1. By lapse of the time prescribed by agreement for its duration; 2. By the expressed will of any partner, if there is no such agreement; 3. By the death of a partner; 4. By the transfer to a person, not a partner, of the inter- est of any partner in the partnership property; 5. By v\'ar, or the prohibition of commercial intercourse between the country in which one partner resides and that in which another resides; or, 6. By a judgment of dissolution, Hlsitorj': Enacted March 21. 1.S72: amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 19n0-l, p. 415. held nnconstitulional. see histni-y, S ' ante. §2451. PARTIAL DISSOLUTION. .\ general partner- ship may be dissolved, as to himself only, by the expressed 809 §§2452,2453 civil code. [Div.III,Pt.IV. will of anj' partner, notwithstanding his agreement for its continuance, subject, however, to liability to his copartners for any damage caused to them thereby, unless the circum- stances are such as entitle him to a judgment of dissolu- tion. History: Enacted March 21, 1872. §2452. PARTNER ENTITLED TO DISSOLUTION. A general partner is entitled to a judgment of dissolution: 1. When he, or another partner, becomes legally incapable of contracting; 2. When another partner fails to perform his duties under the agreement of partnership, or is guilty of serious mis- conduct; or, 3. When the business of the partnership can be carried on only at a permanent loss. History: Enacted March 21, 1872. §2453. NOTICE OF TERMINATION. The liability of a general partner for the acts of his copartners continues, even after a dissolution of the copartnership, in favor of persons who have had dealings with and given credit to the partnership during its existence, until they have had personal notice of the dissolution; and in favor of other persons until such dissolution has been advertised in a newspaper published in every county where the partnership, at the time of its dissolution, had a place of business, if a newspaper is there published, to the extent in either case to which such persons part with value in good faith, and in the belief that such partner is still a member of the firm. History: Enacted March 21, 1872. 810 Tit.X,ch.II,art.V.] CHANGE OF NAME. §2454 §2454. NOTICE BY CHANGE OF NAME. A change of the partnership name, which plainly indicates the with- drawal of a partner, is sufificient notice of the fact of such withdrawal to all persons to whom it is communicated; but a change in the name, which does not contain such an indica- tion, is not notice of the withdrawal of any partner. History: Enacted March 21, 187 2. 811 §§2458-2461 <"TVli. codr | Div.f Il.Pt.IV. ARTICLE VJ. LIQUIDATION. § 2458. Powers of partners after dissolutinn. § 2459. Who may act In liquidation. § 2460. Wlio may not act in liquidation. § 2461. Powers of partners in liquidation. § 2462. What partner may do in liquidation. §2458. POWERS OF PARTNERS AFTER DISSOLU- TION. After the dissolution of a partnership, the powers and authority of the partners are such only as are prescribed by this article. History: Enacted March 21, 1S72. § 2459. WHO MAY ACT IN LIQUIDATION. Any mem- ber of a general partnership may act in liquidation of iis affairs, except as provided by the next section. History: Enacted March 21, 1ST2. §2460. WHO MAY NOT ACT IN LIQUIDATION. If the liquidation of a partnership is committed, by con- sent of all the partners, to one or more of them, the others have no right to act therein; but their acts are valid in favor of persons parting with value, in good faith upon credit thereof. History: Enacted March 21, 1872. §246L POWERS OF PARTNERS IN LIQUIDATION. A partner authorized to act in liquidation may collect, com- promise, or release any debts due to the partnership, pay 812 Tit.X.ch.II.art.VI.] LIQUIDATION. §2462 or compromise any claims against it, and dispose of the partnership propertj'. History: Enacted March 21, 1872; amended by Code Commis- sion. Act March 16, 1901, Stats, and Amdts. 1900-1, p. 415. held unconstitutional, see history, § 4 ante. §2462. WHAT PARTNER MAY DO IN LIQUIDA- TION. A partner authorized to act in liquidation, may in- dorse, in the name of the firm, promissory notes, or other obligations held by the partnership, for the purpose of col- lecting the same, but he cannot create any new obligation in its name, or revive a debt against the firm, by an acknowl- edgment, when an action thereon is barred under the pro- visions of the Code of Civil Procedure. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 252. 813 §§2466,2467 civil code. [Div.ITI.Pt.IV. ARTICLE VII. OF THE USE OF FICTITIOUS NAMES. § 2466. Fictitious names, duties of those using. § 2467. Style of foreign partnership. § 2468. Certificates of partnership, execution, filing, etc. § 2469. Change of membership, filing new certificate. § 2470. Register of firms to be Icept by county clerk. § 2471. Certified copies of register, and proof of publication, to be evidence. § 2472. Foreign co-partnership, designation of agent. §2466. FICTITIOUS NAMES, DUTIES OF THOSE USING. Except as otherwise provided in the next section every person transacting business in this state under a fictitious name and every partnership transacting business in this state under a fictitious name, or a designation not showing the names of the persons interested as partners in such business, must file with the clerk of the county in which his or its principal place of business is situated, a cer- tificate, stating the name in full and the place of residence of such person and stating the names in full of all the mem- bers of such partnership and their places of residence. Such certificate must be published once a week for four successive weeks, m a newspaper published in the county, if there be one, and if there be none in such county, then in a newspaper in an adjoining county. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 253; March 23, 1911, Stats, and Amdts. 1911, p. 440. §2467. STYLE OF FOREIGN PARTNERSHIP. A commercial or banking partnership, established and trans- acting business in a place without the United States, may, without filing the certificate or making the publication pre- 814 Tit.X,ch.II,art.VII.] CERTIFICATES OF. §2468 scribed in the last section, use in this state the partnership name used by it there, although it be fictitious, or do not show the names of the persons interested as partners in such business. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 253. §2468. CERTIFICATES OF PARTNERSHIP, EXECU- TION, FILING, ETC. The certificate filed with the clerk as provided m section twenty-four hundred and sixty -six must be signed by the person therein referred to, or by the partners, as the case may be, and acknowledged before some officer, authorized to take the acknowledgment of con- veyances of real property. Where a business is hereafter commenced by a person under a fictitious name or a partner- ship is hereafter formed, the certificate must be filed and the publication designated in that section must be made with- in one month after the commencement of such business, or after the formation of the partnership, or within one month from the time designated in the agreement of its members for the commencement of the partnership. Where the busi- ness has been heretofore conducted under a fictitious name or where the partnership has been heretofore formed, the certificate must be filed and the publication made within six months after the passage of this act. No person doing busi- ness under a fictitious name, or his assignee or assignees, nor any persons doing business as partners contrary to the provisions of this article, or their assignee or assignees, shall maintain any action upon or on account of any con- tract or contracts made, or transactions had, under such fictitious name, or in their partnership name, in any court of this state until the certificate has been filed and the pub- lication has been made as herein required. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 253; by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 416, held unconstitutional, see Kerr's Cyc. C. C. § 4; March 23, 1911, Stats, and Amdts. 1911. p. 441. 815 §§2469-2472 civil code. [Div.IIl.Pt.IV. 5^2469. CHANGE OF MEMBERSHIP, FILING NEW CERTIFICATE. On every change in the members of a l^artnership transacting business in this state under a fictitious name, or a designation which does not show the names of the persons interested as partners in its business, except in the cases mentioned in section twenty-four hundred and sixty-seven, a new certificate must be filed with the county clerk, and a new publication made as required by this article on the formation of such partnership. HLstory: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 254. §2470. REGISTER OF FIRMS TO BE KEPT BY COUNTY CLERK. Every county clerk must keep a regis- ter of the names of firms and persons mentioned in the cer- tificates filed with him pursuant to this article, entering in alphabetical order the name of every such person who does business under a fictitious name, and the fictitious name, and the name of every such partnership, and of each partner therein. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 254; March 23, 1911, Stats, and Amdts. 1911, p. 440. §247L CERTIFIED COPIES OF REGISTER, AND PROOF OF PUBLICATION, TO BE EVIDENCE. Copies of the entries of a county clerk, as herein directed, when certified by him, and affidavits of publication, as herein directed, made by the printer, publisher, or chief clerk of a newspaper, are presumptive evidence of the facts therein stated. lll.story: Enacted March 21, 1.S72. § 2472. FOREIGN CO-PARTNERSHIP, DESIGNATION OF AGENT. Every co-partnership, other than those men- tioned in section twenty-four hundred and sixty-seven of this 816 Tit.X,ch.lI,art.V]I.] DESIGNATING AGENT. §2472 code, domiciled without this state, and having no regular place of business within this state, must, within forty days from the time it commences to do business therein, file in the office of the secretary of state a designation of some person residing within the state upon whom process issued liy authority of or under any law of this state, may be served. A copy of such designation, duly certified by the secretary of state, is sufficient evidence of such appointment. Such process maj- be served on the person so designated, or, in the event that no such person is designated, then on the secretary of state, and the service is a valid service on such co-partnership. History: Enacted March 21, 1S72; amended April 22, 1909, Stats, and Amdts. 1909, p. 1065. 817 §2477 CIVIL CODE. [Div.III.Pt.IV. CHAPTER III. SPECIAL PARTNERSHIP. Article I. Formation of Partnership, §§2477-2485. II. Powers, Rights, and Duties of the Partners, §§ 2489-2496. III. Liability of Partners, §§2500-2503. IV. Alteration and Dissolution of the Partnership, §§2507-2510. ARTICLE I. FORMATION OF PARTNERSHIP. § 2477. Formation of special partnership. § 2478. Of what to consist. § 2479. Certified statement. § 2480. Acknowledged and recorded. False statement. § 2481. Affidavit as to sums contributed. § 2482. No partnership until compliance. § 2483. Certificate to be published. § 2484. Aflldavit of publication filed. § 2485. Renewal of special partnership. §2477. FORMATION OF SPECIAL PARTNERSHIP. A special partnership may be formed by two or more per- sons, in the manner and with the effect prescribed in this chapter, for the transaction of any business except banking or insurance. History: Enacted March 21, 1872. 818 Tit.X,ch.III,art.I.] CERTIFIED STATEMENT. §§2478-2480 §2478. OF WHAT TO CONSIST. A special partner- ship may consist of one or more persons called general partners, and one or more persons called special partners. History: Enacted March 21, 1S72. § 2479. CERTIFIED STATEMENT. Persons desirous of forming a special partnership must severally sign a certificate, stating: 1. The name under which the partnership is to be con- ducted; 2. The general nature of the business intended to be transacted; 3. The names of all the partners, and their residences, specifying which are general and which are special partners; 4. The amount of capital which each special partner has contributed to the common stock; 5. The periods at which such partnership will begin and end. Hi.story: Enacted March 21, 1872: §2480. ACKNOWLEDGED AND RECORDED. FALSE STATEMENT. Certificates under the last section must be acknowledged by all the partners, before some officer authorized to take acknowledgment of deeds, one to be filed in the clerk's office, and the other recorded in the office of the recorder of the county in which the principal place of business of the partnership is situated, in a book to be kept for that purpose, open to public inspection; and if the part- nership has places of business situated in different counties, a copy of the certificate, certified by the recorder in whose office it is recorded, must be filed in the clerk's office, and recorded in like manner in the office of the recorder in every such county. If any false statement is made in any such certificate, all the persons interested in the partnership are liable, as general partners, for all the engagements thereof. History: Enacted March 21, 1872. 819 §§2481-2484 civil code. [Div.III.Pt.I V. §2481. AFFIDAVIT AS TO SUMS CONTRIBUTED. An affidavit of each of the partners, stating that the sums specified in the certificate of the partnership as having been contributed by each of the special partners, have been actual- ly and in good faith paid, in the lawful money of the United States, must be filed in the same office with the original cer- tificate. Hi-story: Enacted March 21. 1872. §2482. NO PARTNERSHIP UNTIL COMPLIANCE. Xo special partnership is formed until the provisions of the last five sections are complied with. History: Enacted March 21. 1872. § 2483. CERTIFICATE TO BE PUBLISHED. The cer- tificate mentioned in this article, or a statement of its sub- stance, must be published in a newspaper printed in the county where the original certificate is filed, and if no news- paper is there printed, then in a newspaper in the state near- est thereto. Such publication must be made once a week for four successive weeks, beginning within one week from, the time of filing the certificate. In case such publication is not so made, the partnership must be deemed general. History: Enacted March 21. 1872. §2484. AFFIDAVIT OF PUBLICATION FILED. An affidavit of the making of the publication mentioned in the preceding section, made by the printer, publisher, or chief clerk of the newspaper in which such publication is made, may be filed with the county recorder with whom the original certificate was filed, and is presumptive evidence of the facts therein stated. History: Enacted March 21, 1872. 820 Tit.X,cli.ni,arl.l.l liRNTOWAU §2485 §2485. RENEWAL OF SPECIAL PARTNERSHIP. Every renewal or continuance of a special partnership must be certified, recorded, verified, and published in the same man- ner as upon its original formation. Hi-story: Enacted March 21, 1872. 821 §§2489-2491 civil code. [Div.III,Pt.IV ARTICLE II. POWERS, RIGHTS, AND DUTIES OF THE PARTNERS. § 2489. Who to do business. § 2490. Special partners may advise. § 2491. May loan money. Insolvency. § 2492. General partners may sue and be sued. § 2493. Withdraviral of capital. § 2494. Interest and profits. § 2495. Result of withdrawing capital. § 2496. Preferential transfer void. §2489. WHO TO DO BUSINESS. The general part- ners only have authority to transact the business of a special partnership. History: Enacted March 21, 1872, founded upon § 10, Act March 4, 1870, Stats. 1869-70, p. 124; amended by Code Commis- sion Act March 16, 1901, Stats, and Amdts. 1900-1, p. 816, held unconstitutional, see history, § 4 ante. §2490. SPECIAL PARTNERS MAY ADVISE. A spe- cial partner may at all times investigate the partnership affairs, and advise his partners, or their agents, as to their management. History: Enacted March 21, 1872, founded upon §11, Act March 4, 1870, Stats. 1869-70, p. 124. §2491. MAY LOAN MONEY. INSOLVENCY. A spe- cial partner may lend monej' to the partnership, or advance money for it, and take from it security therefor, and as to such loans or advances has the same rights as any other creditor; but in case of the insolvency of the partnership, all other claims which he may have against it must be post- poned until all other creditors are satisfied. History: Enacted March 21, 1872, founded upon § 12, Act March 4, 1870, Stats. 1869-70, p. 124. 822 Tit.X,ch.III,art.II.] SUING— WITHDRAWAL. §§2492-2496 §2492. GENERAL PARTNERS MAY SUE AND BE SUED. In all matters relating to a special partnership, its general partners may sue and be sued alone, in the same manner as if there were no special partners. History: Enacted March 21, 1872, founded upon § 13, Act March 4, 1870, Stats. 1869-70, p. 124. §2493. WITHDRAWAL OF CAPITAL. No special partner, under any pretense, may withdraw any part of the capital invested by him in the partnership, during its con- tmuance. History: Enacted March 21, 1872, founded upon § 14, Act March 4, 1870, Stats. 1869-70, p. 124. §2494. INTEREST AND PROFITS. A special partner may receive such lawful interest and such proportion of profits as may be agreed upon, if not paid out of the capital invested in the partnership by him, or by some other special partner, and is not bound to refund the same to meet sub- sequent losses. History: Enacted March 21, 1872, founded upon § 15, Act March 4, 1870, Stats. 1869-70, p. 124. §2495. RESULT OF WITHDRAWING CAPITAL. If a special partner withdraws capital from the firm, con- trary to the provisions of this article, he thereby becomes a general partner. History: Enacted March 21,, 1872, founded upon § 16, Act March 4, 1870, Stats. 1869-70, p. 124. §2496. PREFERENTIAL TRANSFER VOID. Every transfer of the property of a special partnership, or of a partner therein, made after or in contemplation of the in- solvency of such partnership or partner, with intent to give 823 §2496 CIVIL CODE. [Div.III.Pt.lV. a preference to any creditor of such partnership or partner over anj' other creditor of such partnership, is void against the creditors thereof; and every judgment confessed, lien created, or securit}' given, in like manner and with the like intent, is in like manner void. History: Enacted March 21, 1872, founded upon § 17, Act March 4, 1870, Stats. 1869-70, p. 124. 824 Tit.X,ch.III,art.III.] t.iabtuty. §§2500-2502 ARTICLE 111. LIABILITY OF PARTNERS. § 2500. Liability of partners. § 2501. Of special partners. § 2502. Liability for unintentional act. § 2503. Who may question existence of special partnership. § 2500. LIABILITY OF PARTNERS. The general part- ners in a special partnership are liable to the same extent as partners in a general partnership. HLstory: Enacted March 21, 1872, founded upon §18, Act March 4, 1870, Stats. 1869-70, p. 124. §2501. OF SPECIAL PARTNERS. The contribution of a special partner to the capital of the firm, and the increase thereof, is liable for its debts, but he is not otherwise liable therefor, except as follows: 1. If he has wilfully made or permitted a false or materially defective statement in the certificate of the partnership, the affidavit filed therewith, or the published announcement thereof, he is liable, as a general partner, to all creditors of the firm; 2. If he has wilfully interfered with the business of the firm, except as permitted in article two of this chapter, lie is liable in like manner; or, 3. If he has wilfully joined in or assented to an act con- trary to any of the provisions of article two of this chapter, he is liable in like manner. History: Enacted March 21, 1872, founded upon § 19, -Act March 4, 1870, Stats. 1869-70, p. 124. §2502. LIABILITY FOR UNINTENTIONAL ACT. When a special partner has unintentionally dune any of the 825 §2503 CIVIL CODE. [Div.III,Pt.IV. acts mentioned in the last section, he is liable, as a general partner, to any creditor of the firm who has been actually misled thereby to his prejudice. History: Enacted March 21, 1872, founded upon § 20, Act March 4, 1S70, Stats. 1869-70, p. 125. §2503. WHO MAY QUESTION EXISTENCE OF SPECIAL PARTNERSHIP. One who, upon making a contract with a partnership, accepts from or gives to it a written memorandum of the contract, stating that the part- nership is special, and giving the names of the special part- ners, cannot afterwards charge the persons thus named as general partners upon that contract, by reason of an error or defect in the proceedings for the creation of the special partnership, prior to the acceptance of the memorandum, if an effort has been made by the partners, in good faith, to form a special partnership in the manner required l)y article one of this chapter. History; Enacted March 21, 1872, founded upon § 21, Act March 4, 1870, Stats. 1869-70, p. 125. 826 Tit.X,ch.III,art.IV.] CHANGE IN. §§2507,2508 ARTICLE IV. ALTERATION AND DISSOLUTION. § 2507. When special partnership becomes general. § 2508. How new special partners may be admitted. § 2509. Dissolution of special partnersliip. Notice. § 2510. The name of a special partner not used, unless. §2507. WHEN SPECIAL PARTNERSHIP BECOMES GENERAL. A special partnership becomes general if, with- in ten days after any partner withdraws from it, or any new partner is received into it, or a change is made in the nature of its business or in its name, a certificate of such fact, duly verified and signed by one or more of the partners, is not filed with the county clerk and recorder with whom the original certificate of the partnership was filed, and notice thereof published as is provided in article one of this chapter for the publication of the certificate. History: Enacted March 21, 1872, founded upon § 22, Act March 4, 1870, Stats. 1869-70, p. 125. §2508. HOW NEW SPECIAL PARTNERS MAY BE ADMITTED. New special partners may be admitted into a special partnership upon a certificate, stating the naines, residences, and contributions to the common stock of each of such partners, signed by each of them, and by the gen- eral partners, verified, acknowledged, or proved, according to the provisions of article one of this chapter, and filed with the county clerk and recorder with whom the original certificate of the partnership was filed. History: Enacted March 21. 1872, founded upon § 23, Act March 4, 1870, Stats. 1869-70, p. 125. 827 §§2509,2510 CIVIL CODE. [Div.III.Pt.IV. § 2509. DISSOLUTION OF SPECIAL PARTNERSHIP. NOTICE. A special partnership is subject to dissolution m the same manner as a general partnership, except that no dissolution, by the act of the partners, is complete until a notice thereof has been filed and recorded in the office of the count}' clerk and recorder with whom the original cer- tificate was recorded, and published once in each week, for four successive weeks, in a newspaper printed in each county v/here the partnership has a place of business. History: Enacted March 21, 1872, founded upon § 24, Act March 4, 1870. Stats. 1869-70, p. 12.5. §2510. THE NAME OF A SPECIAL PARTNER NOT USED, UNLESS. The name of a special partner must not be used in the firm name of partnership, unless it be ac- companied with the word "limited." History: Enacted March 21, 1S72, founded upon § 25, Act March 4, 1870. Stats. 1869-70, p. 125. 828 Tit.X,ch.lV.] MINING PARTNERSHIPS. §§2511-2513 CHAPTER IV. MINING PARTNERSHIPS. § 2511. When a mining partnership exists. § 2512. Express agreement not necessary to constitute. § 2513. Profits and losses, how shared. § 2514. Lien of partners. § 2515. Mine. Partnership property. § 2516. Partnership not dissolved by sale of interest. § 2517. Purchaser taltes, subject to liens, unless, etc. § 2518. Takes with notice of lien, when. § 2519. Contract in writing, when binding. § 2520. Owners of majority of shares govern. §2511. WHEN A MINING PARTNERSHIP EXISTS. A mining partnership exists when two or more persons who own or acquire a mining claim for the purpose of working it and extracting the mineral tlierefrom actually engage in working the same. HLstory: Enacted March 21, 1872. §2512. EXPRESS AGREEMENT NOT NECESSARY TO CONSTITUTE. 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 partner- ship. 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. HlHtory: KiiucIimI Maicli 21, 1S72. §2513. PROFITS AND LOSSES, HOW SHARED. A member of a mining partnership shares in the profits and 829 I §§2514-2517 CIVIL code. [Div.III,Pt.lV. losses thereof in the proportion which the interest or share he owns in the mine bears to the whole partnership capital or whole number of shares. History: Enacted March 21, 1S72. § 2514. LIEN OF PARTNERS. Each member of a min- ing 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 notwithstanding there is an agreement among the partners that it must not. History: Enacted March 21, 1872. §2515. MINE. PARTNERSHIP PROPERTY. The mining ground owned and worked by partners in mining, whether purchased with partnership funds or not, is part- nership property. History: Enacted March 21, 1872. §2516. PARTNERSHIP NOT DISSOLVED BY SALE OF INTEREST. One of the partners in a mining partner- ship may convey his interest in the mine and business with- out dissolving the partnership. The purchaser, from the date of his purchase, becomes a member of the partnership. History-: Enacted March 21, 1872. §2517. PURCHASER TAKES, SUBJECT TO LIENS, UNLESS, ETC. A purchaser of an interest in the mining tjround of a mining partnership takes it subject 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 considera- tion, without notice of such lien. History: Enacted March 21, 1872. 830 Tit.X,ch.IV.] NOTICE OF LIEN. §§2518-2520 §2518. TAKES WITH NOTICE OF LIEN, WHEN. A purchaser of the interest of a partner in a mine when the partnership is engaged in working it, takes with notice of all liens resulting from the relation of the partners to each other and to the creditors of the partnership. History: Enacted March 21. 1872. §2519. CONTRACT IN WRITING, WHEN BINDING. No member of a mining partnership or other agent or man- ager thereof can, by a contract in writing, bind the partner- ship, except by express authority derived from the members thereof. . History: Enacted March 21, 1S72. §2520. OWNERS OF MAJORITY OF SHARES GOV- ERN. The decision of the members owning a majority of the shares or interests in a mining partnership binds it in the conduct of its business. History: Enacted March 21, 1S72. 831 S2527 ' OIVTL CODE. [Div.III,Pt.IV. TITLE XI. INSURANCE. Chapter I. Insurance in General, §§ 2527-2649. II. Marine Insurance, §§2655-2746. HI. Fire Insurance, §§2752-2757. IV. Life and Health Insurance, §§2762-2766. CHAPTER I. INSURANCE IN GENERAL. xArticle I. Definition of Insurance, § 2527. II. What May be Insured, §§2531-2534. III. Parties, §§2538-2542. IV. Insurable Interest, §§2546-2558. V. Concealment and Representation, §§2561-2583. VI. The Policy, §§2586-2599. Vil. 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. 832 Tit.XI,ch.I,arts.IJI.'l INSURANCE. §§2527-2532 ARTICLE T. DEFINITION OF INSURANCE. § 2527. Insurance, what. §2527. INSURANCE, WHAT. Insurance is a contract whereby one undertakes to indemnify another against loss, damage, or liabilit}-, arising from an unknown or contingent event. Histury: Enacted March 21, 1ST2. ARTICLE II. WHAT MAY BE INSURED. § 2531. What events may be insured against. § 2532. Insurance of lottery or lottery prize unauthorized. § 2533. Usual kinds of insurance. § 2534. All subject to this chapter. §253L WHAT EVENTS MAY BE INSURED AGAINST. Any contingent or unknown event, whether past or future, which may damnify a person having an in- surable interest, or create a liability against him, may be insured against, subject to the provisions of this chapter. Hi.story: Enacted March 21. 1872. §2532. INSURANCE OF LOTTERY OR LOTTERY PRIZE UNAUTHORIZED. The preceding section docs not authorize an insurance for or against the drawing of any lottery, or for or against any chance or ticket in a lot- tery drawing a prize. HiNtory: Enacted March 21, 1872. -7 833 §§2533,2534 civil code. [Div.IIl,Pt.IV. §2533. USUAL KINDS OF INSURANCE. The most usual kinds of insurance are: 1. Marine insurance; 2. Fire insurance; 3. Life insurance; 4. Health insurance; and, 5. Accident insurance. History: Enacted March 21, 1S72. §2534. ALL SUBJECT TO THIS CHAPTER. All kinds of insurance are subject to the provisions of this chapter. History: Enacted March 21, 1S72. 834 Tit.XI,ch.I,art.III.] PARTIES TO. §§2538-2541 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. DESIGNATION OF PARTIES. The person who undertakes to indemnify another by a contract of insurance is called the insurer, and the person indemnified is called the insured. History-: Enacted March 21, 1872. §2539. WHO MAY INSURE. Any one capable of mak- ing a contract may be an insurer, subject to the restrictions imposed by special statutes upon foreign corporations, non- residents, and others. History: Enacted March 21, 1872. §2540. WHO MAY BE INSURED. Any one except a public enemj' may be insured. History: Enacted March 21, 1872. §2541. ASSIGNMENT TO MORTGAGEE OF THING INSURED. Unless the policy otherwise provides, where a mortgagor of property effects insurance in his own name providing that the loss shall be payable to the mortgagee, or assigns a policy of insurance to a mortgagee, the insur- ance is deemed to be upon the interest of the mortgagor, who does not cease to be a party to the original contract, and any act of his, prior to the loss, which would otherwise 835 §2542 CIVIL CODE. [Div.III.Pt.IV. avoid the insurance will have the same effect, although the property is in the hands of the mortgagee, but any act which, under the contract of insurance, is to be performed bj' the mortgagor, may be performed by the mortgagee therein named, with the same effect as if it had been performed by the mortgagor. History: Enacted March 21, 1872, amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 416, held unconstitutional, see history, § 593 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 616; amended April 15, 1909, Stats, and Amdts. 1909, p. 914. lu eflEect immediately. §2542. NEW CONTRACT BETWEEN INSURER AND ASSIGNEE. If an insurer assents to the transfer of an in- surance from a mortgager to a mortgagee, and, at the time of his assent, imposes further obligations on the assignee, making a new contract with him, the acts of the mortgager cannot affect his rights. History: Enacted March 21, 1872. 836 Tit.XI,ch.I,art.IV.] INSURABLE INTEREST. §§2546-2548 ARTICLE IV. INSURABLE INTEREST. § 2546. Insurable interest, what. § 2.547. In what may consist. § 2548. Interest of carrier or depositary. § 2549. Mere expectancies. § 2550. Measure of interest in propert.v. § 2551. Insurance without interest, illegal. § 2552. When interest must exist. § 2553. Effect of transfer. § 2554. Transfer after loss. § 2555. Exception in the case of several subjects in one policy. § 2556. In case of the death of the insurer. § 2557. In the case of transfer between co-tenants. § 2558. Void insurance stipulations. §2546. INSURABLE INTEREST, WHAT. Every in- terest in property, or an}' relation thereto, or liability in respect thereof, of such a nature that a contemplated peril mip:ht directly damnify the nisured, is an insurable in- terest. Hi.story: Enacted March 21, 1872. §2547. IN WHAT MAY CONSIST. An insural^le inter- est in property may consist in: 1. An existing interest; 2. An inchoate interest founded on an existing interest; or, 3. An expectancy, coupled with an existing interest in that out of which the expectancy arises. History: Enacted March 21, 1S72. §2548. INTEREST OF CARlRIER OR DEPOSITARY. A carrier or depositarj- of any kind has an insurable inter- est in a thing held by him as such, to the extent of its value. History: Enacted March 21, 1872. 837 §§2549-2554 civil code. [Div.III,Pt.IV. § 2549. MERE EXPECTANCIES. A mere contingent or expectant interest in anything, not founded on an actual right to the thing, nor upon any valid contract for it, is not insurable. History: Enacted March 21, 1872. §2550. MEASURE OF INTEREST IN PROPERTY. The measure of an insurable interest in property is the extent to which the insured might be damnified by loss or injury thereof. History: Enacted March 21, 1872. §2551. INSURANCE WITHOUT INTEREST, IL- LEGAL. The sole object of insurance is the indemnity of the insured, and if he has no insurable interest the contract is void. History: Enacted March 21, 1872. § 2552. WHEN INTEREST MUST EXIST. An interest insured must exist when the insurance takes effect, and when the loss occurs, but need not exist in the mean time. History; Enacted March 21, 1872. § 2553. EFFECT OF TRANSFER. Except in 'the cases specified in the next four sections, and in the cases of life, accident, and health insurance, a change of interest in any part of a thing insured, unaccompanied by a corresponding change of interest in the insurance, suspends the insurance to an equivalent extent, until the interest in the thing and the interest in the insurance are vested in the same person. History: Enacted March 21, 1872. § 2554. TRANSFER AFTER LOSS. A change of inter- est in a thing insured after the occurrence of an injury 838 Tit.XI,ch.I,art.IV.] EXCEPTIONS. §§2555-2558 which results in a loss, docs not affect the right of the in- sured to indemnity for the loss. History: Enacted March 21, 1872. §2555. EXCEPTION IN THE CASE OF SEVERAL SUBJECTS IN ONE POLICY, A change of interest in one or more of several distinct things, separately insured by one policy, does not avoid the insurance as to the others. HLstory: Enacted March 21, 1S72. §2556. IN CASE OF THE DEATH OF THE INSUR- ER. A change of interest, by will or succession, on the death of the insured, does not avoid an insurance; and his interest in the insurance passes to the person taking his interest in the thing insured. History: Enacted March 21/1872. §2557. IN THE CASE OF TRANSFER BETWEEN COTENANTS. A transfer of interest by one of several partners, joint owners, or owners in common, who are joint- ly insured, to the others, does not avoid an insurance, even though it has been agreed that the insurance shall cease upon an alienation of the thing insured. History: Enacted March 21, 1872. §2558. VOID INSURANCE STIPULATIONS. Every stipulation in a policy of insurance for the payment of loss whether the person insured has or has not any interest in the property insured, or that the policy shall be received as proof of such interest, and every policy executed by vvay of gaming or wagering, is void. History: Enacted March 30, 1874, Code Amdts. 1873-4, p. 255. 839 §§2561,2562' <"TVTL CODE. |Uiv.III,rt.IV. ARTICLE V. CONCEALMENT AND REPRESENTATION. § 2561. Concealment, what. § 2562. Effect of concealment. § 2563. What must be disclosed. § 2564. Matters which need not be communicated without in- quiry. § 2565. Test of materiality. § 2566. Matters which each is bound to know. § 2567. Waiver of communication. § 256S. Interest of insured. § 2569. Fraudulent warranty. § 2570. Matters of opinion. § 2571. Representation, what. § 2572. When made. § 2573. How interpreted. § 2574. Representation as to future. § 2575. How may affect policy. § 2576. When may be withdrawn. §2577. Time intended by representation. § 2578. Representing information. § 2579. Falsity. § 25S0. Effect of falsity. § 25'Sl. Materiality. § 2582. Application of provisions of this article. § 2583. Rescission of insurance contiact. §2561. CONCEALMENT, WHAT. A neglect to com- municate that which a party knows, and otight to communi- cate, is called a concealment. HLstory: Enacted March 21. 1S72. §2562. EFFECT OF CONCEALMENT, A concealmen, . whether intentional or unintentional, entitles the injtired party to rescind a contract of insurance. History: Enacted March 21, 1S72. 840 Tit.X],c]i.I,art.\'.| I )l.sci.()RURRS. §§2563-2566 S 2563. WHAT MUST BE DISCLOSED. Each party to a contract of insurance must communicate to the otlier, in good faith, all facts within his knowledge which are or which he believes to be material to the contract, and which the other has not the means of ascertaining, and as to whicli he makes no warranty. History: Enacted March 21, 1872. §2564. MATTERS WHICH NEED NOT BE COM- MUNICATED WITHOUT INQUIRY. Neither party to a contract of insurance is bound to communicate information of the matters following, except in answer to the inquiries of the other: 1. Those which the other knows; 2. Those which, in the exercise of ordinary care, the other ought to know, and of which the former has no reason to suppose him ignorant; 3. Those of which the other waives communication; 4. Those which prove or tend to prove the existence of a risk excluded by a warrant)-, and which are not otherwise material; and, 5. Those which relate to a risk excepted from the policy, and which are not otherwise material. History: Enacted March 21, 1S72. ' § 2565. TEST OF MATERIALITY. Materiality is to be determined not by the event, but solely by the probable and reasonable influence of the facts upon the party to whom the communication is due. in forming his estimate of the disadvantages of the proposed contract, or in making his inquiries. History: Enacted March 21, 1872. §2566. MATTERS WHICH EACH IS BOUND TO KNOW. Each party lo a contract of insurance is bound to 841 §g 2567-2571 civil code. [Diy.III,Pt.IV. know all the general causes which are open to his inquiry, equally with that of the other, and which may affect either the political or material perils contemplated; and all general usages of trade. History: Enacted March 21, 1872. §2567. WAIVER OF COMMUNICATION. The right to information of material facts may be waived, either by the terms of insurance or by neglect to make inquiries as to such facts, where they are distinctly implied in other facts of which information is communicated. History: Enacted March 21, 1872. §2568. INTEREST OF INSURED. Information of the nature or amount of the interest of one insured need not be communicated unless in answer to an inquiry, except as prescribed by section twenty-five hundred and eighty- seven. History: Enacted March 21, 1872. §2569. FRAUDULENT WARRANTY. An intentional and fraudulent omission, on the part of one insured, to communicate information of matters proving or tending to prove the falsity of a warranty, entitles the insurer to rescind. History: Enacted March 21, 1872. §2570. MATTERS OF OPINION. Neither party to a contract of insurance is bound to communicate, even upon inquiry, information of his own judgment upon the matters in question. History: Enacted March 21, 1872. §2571. REPRESENTATION, WHAT. A representation may be oral or written. History: Enacted March 21, 1872. 842 Tit.XI,ch.I,art.V.] INTERPRETATION. §§2572-2578 § 2572. WHEN MADE, A representation may be made at the same time with issuing the policy, or before it. Hi.story: Enacted March 21, 1872. § 2573. HOW INTERPRETED. The language of a rep- resentation is to be interpreted by the same rules as the language of contracts in general. HLstory; Enacted March 21, 1872. § 2574. REPRESENTATION AS TO FUTURE. A rep- resentation as to the future is to be deemed a promise, unless it appears that it was merely a statement of belief or ex- pectation. History: Enacted March 21, 1872. §2575. HOW MAY AFFECT POLICY. A representa- tion cannot be allowed to qualify an express provision in a contract of insurance; but it may qualify an implied war- ranty. History: Enacted March 21, 1872. § 2576. WHEN MAY BE WITHDRAWN. A representa- tion may be altered or withdrawn before the insurance is effected, but not afterwards. History: Enacted March 21, 1872. §2577. TIME INTENDED BY REPRESENTATION. The completion of the contract of insurance is the time to which a representation must be presumed to refer. History: Enacted March 21, 1872. §2578. REPRESENTING INFORMATION. When a person insured has no personal knowledge of a fact, he may nevertheless repeat information which he has upon the sub- 843 §§2579-2583 civil code. [Div.III.Pt.IV. icct, and wliicli he believes lo be true, with the explanation that he does so on the information of others, or he may sub- mit the information, in its whole extent, to the insurer; and in neither case is he responsible for its truth, unless it pro- ceeds from an agent of the insured, whose duty it is to give the intelligence. History: Enacted March 21, 1872. §2579. FALSITY. A representation is to be deemed false when the facts fail to correspond with its assertions or stipulations. History: Enacted March 21, 1872. §2580. EFFECT OF FALSITY. If a representation is. false in a material point, whether affirmative or promissory, the injured party is entitled to rescind the contract from the time when the representation becomes false. History: Enacted March 21, 1872. §2581. MATERIALITY. The materiality of a represen- tation is determined by the same rule as the materiality of a concealment. History: Enacted March 21, 1872. §2582. APPLICATION OF PROVISIONS OF THIS ARTICLE. The provisions of this article apply as well to a modification of a contract of insurance as to its original formation. History: Enacted March 21, 1872. §2583. RESCISSION OF INSURANCE CONTRACT. Whenever a right to rescind a contract of insurance is given to the insurer by any provision of this chapter, such right may be exercised at any time previous to the commencement of an action on the contract. History: Enacted March 30, 1874; Code Amdts. 1873-4, p. 255 844 Tit.XI,ch.I,art.VI.] THE POLICY. §§2586,2587 ARTICLE VI. THE POLICY. • § 25 86. Policy, what. § 2587. What must be specified in a policy. § 25S8. Whose interest is covered. § 2589. Insurance by agent or trustee. § 2590. Insurance by part owner. § 2591. General terms. § 2592. Successive owners. § 2593. Transfer of the thing insured. § 2594. Open and valued policies. § 2595. Open policy, what. § 2596. Valued policy, what. § 2597. Running policy, wliat. § 2598. Effect of receipt. § 2599. Agreement not to transfer. §2586. POLICY, WHAT. The written instrument, in which a contract of insurance is set forth, is called a policy of insurance. History: Enacted March 21, 1872. §2587. WHAT MUST BE SPECIFIED IN A POLICY. A policy of insurance must specify: 1. The parties between whom the contract is made; 2. The rate of premium; 3. The property or life msurcd; 4. The interest of the insured in property insured, if he is not the absolute owner thereof; 5. The risks insured against; and, 6. The period during which the insurance is to continue. History: Enacted March 21, 1S72. 845 §§2588-2593 civil code. [Div.III.Pt.IV. §2588. WHOSE INTEREST IS COVERED. When the name of the person intended to be insured is specified in a policy, it can be applied only to his own proper interest. History: Enacted March 21, 1S72. § 2589. INSURANCE BY AGENT OR TRUSTEE. When an insurance is made by an agent or trustee, the fact that his principal or beneficiary is the person really insured may be indicated by describing him as agent or trustee, or by other general words in the policy. History: Enacted March 21, 1872. §2590. INSURANCE BY PART OWNER. To render an insurance, effected by one partner or part owner, applicable to the interest of his copartners, or of other part owners, it is necessary that the terms of the policy should be such as are applicable to the joint or common interest. History: Enacted March 21, 1S72. §2591. GENERAL TERMS. When the description of the msured in a policy is so general that it may comprehend any person or any class of persons, he only can claim the benelit of the policy who can show that it was intended to include him. History: Enacted March 21, 1872. §2592. SUCCESSIVE OWNERS. A policy may be so framed that it will inure to the benefit of whomsoever, during the continuance of the risk, may become the owner of the interest insured. History: Enacted March 21, 1S72. §2593. TRANSFER OF THE THING INSURED. The mere transfer of a thing insured does not transfer the policy, 846 Tit.XI,ch.I,art.\ I.] OPEN policy. §§2594-2599 but suspends it until the same person becomes the owner of both the policy and the thing insured. History: Enacted March 21, 1S72. §2594. OPEN AND VALUED POLICIES. A policy is either open or valued. History: Enacted March 21, 1S72. § 2595. OPEN POLICY, WHAT. An open policy is one in which the value of the thing insured is not agreed upon, but is left to be ascertained in case of loss. . History: Enacted March 21, 1872. § 2596. VALUED POLICY, WHAT. A valued policy is one which expresses on its face an agreement that the thing insured shall be valued at a specified sum. History: Enacted March 21, 1872. § 2597. RUNNING POLICY, WHAT. A running policy is one which contemplates successive insurances, and which provides that the object of the policy may be from time to time defined, especially as to the subjects of insurance, b> additional statements or indorsements. History: Enacted March 21, 1872. § 2598. EFFECT OF RECEIPT. An acknowledgment in a policy of the receipt of premium is conclusive evidence of its payment, so far as to make the policy binding, notwith- standing any stipulation therein that it shall not be bmding until the premium is actually paid. History: Enacted March 21, 1S72. § 2599. AGREEMENT NOT TO TRANSFER. An agree- ment made before a loss, not to transfer the claim of a per- son insured against the insurer, after the loss has happened, is void. History: Enacted March 21, 1872. 847 §§2603-2606 civil code. | Div.III.Pt.lV. ARTICLE VII. WARRANTIES. § 2603. Warranty, express or implied. § 2604. Form. [No particular words necessary.] § 2605. Warranty must be in policy. § 2606. Past, present, and future warranties. § 2607. Warranty as to past or present. § 260S. Warranty as to the future. § 2609. Performance excused. § 2610. What acts avoid the policy. § 2611. Policy may provide for avoidance. § 2612. Breach without fraud. §2603. WARRANTY, EXPRESS OR IMPLIED. A warranty is either express or implied. History: Enacted March 21, 1S72. § 2604. FORM. [NO PARTICULAR WORDS NECES- SARY.] No particular form of words is necessary to create a warranty. History: Enacted March 21, 1S72. §2605. WARRANTY MUST BE IN POLICY. Every express warranty, made at or before the execution of a policj', must be contained in the policy itself, or in another instru- ment signed by the insured and referred to in the policy, as making a part of it. History: Enacted March 21^ 1S72; amended March 30, 1S74, Code Amdts. 1873-4, p. 255. §2606. PAST, PRESENT. AND FUTURE WAR- RANTIES. A warranty may relate to the past, the present, the future, or to any or all of these. Hi.story: Enacted March 21, 1872. 848 Tit.XLch.I.art.VlI.] WARRANTY. §§2607-2612 S2607. WARRANTY AS TO PAST OR PRESENT. \ statement in a policy, of a matter relating to the person or thing insured, or to the risk, as a fact, is an express warranty thereof. History: Enacted March 21, 1872. § 2608. WARRANTY AS TO THE FUTURE. A state- ment in a policy, which imports that it is intended to do or not to do a thing Vv^hich materially aflfects the risk, is a war- ranty that such act or omission shall take place. History: Enacted March 21, 1872. § 2609. PERFORMANCE EXCUSED. When, before the time arrives for the pcrfomance of a warranty relating to the future, a loss insured against happens, or performance he- comes unlawful at the place of the contract, or impossil:)le, the omission to lulfil the warranty does not avoid the policy. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1S73-4, pp. 255-6. § 2610. WHAT ACTS AVOID THE POLICY. The vio- lation of a material warranty, or other material provision of a policy, on the part of either party thereto, entitles the other to rescind. History: Enacted March 21, 1872. §2611. POLICY MAY PROVIDE FOR AVOIDANCE. A policy may declare that a violation of specified provisions thereof shall avoid it, otherwise the breacli of an immaterial l)rovision does not avoid the policy. History: Enacted March 21, 1872. §2612. BREACH WITHOUT FRAUD. A breach of war- ranty, without fraud, merely exonerates an insurer from the lime that it occurs, or where it is broken in its inception pre- vents the policy from attaching to the risk. History: Enacted March 21, 1872. 849 §§2616-2618 CIVIL CODE. [Div.III,Pt.IV. ARTICLE VIII. PREMIUM. § 2616. When premium is earned. § 2617. Return of premium. § 2618. When not allowed. § 2619. Return for fraud. § 2620. Over-insurance by several insurers. § 2621. Contribution. § 2622. Proportionate contribution. § 2616. WHEN PREMIUM IS EARNED. An insurer is entitled to paymenl; of the premium as soon as the thing msured is exposed to the peril insured against. History: Enacted March 21, 1872. §2617. RETURN OF PREMIUM. A person insured is entitled to a return of premium, as follow^s: 1. To the whole premium, if no part of his interest in the thing insured be exposed to any of the perils insured against. 2. Where the insurance is made for a definite period of time, and the insured surrenders his policy, to such propor- tion of the premium as corresponds with the unexpired time, after deducting from the whole premium any claim for loss or damage under the policy which has previously accrued. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 256. §2618. WHEN NOT ALLOWED. If a peril insured against has existed, and the insurer has been liable for any period, however short, the insured is not entitled to return of premiums, so far as that particular risk is concerned. History; Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 256. 850 Tit.XI,ch.I,art.VIII.] PREMIUM— FRAUD. §§2619-2622 § 2619. RETURN FOR FRAUD. A person insured is en- titled to a return of the premium when the contract is void- able, on account of the fraud or misrepresentation of the in- surer, or on account of facts, of the existence of which the msured was ignorant without his fault; or when, by any default of the insured other than actual fraud, the insurer never incurred any liability under the policy. HKstory: Enacted March 21, 1872. §2620. OVER-INSURANCE BY SEVERAL INSUR- ERS. In case of an over-insurance by several insurers, the insured is entitled to a ratable return of the pfemmm, pro- portioned to the amount by which the aggregate sum insured in all the policies exceeds the insurable value of the thing at risk. History: Enacted March 21, 1872. § 2621. CONTRIBUTION. V/hen an over-insurance is effected by simultaneous policies, the insurers contribute to the premium to be returned in proportion to the amount in- sured by their respective policies. History: Enacted March 21, 1872. §2622. PROPORTIONATE CONTRIBUTION. When an over-insurance is effected by successive policies, those only contribute to a return of the premium who are exon- erated by prior insurances from the liability assumed by them, and in proportion as the sum for which the premium was paid exceeds the amount for which, on account of prior insurance, they could be made liable. Hi.story: Enacted March 21, 1872. 851 §2626-2628 civil code. |Uiv.IIT,Pt.lV. ARTICLE IX. LOSS. § 2626. Perils, remote and proximate. § 2627. Loss incurred in rescue from peril. § 262S. Excepted perils. § 2629. Negligence and fraud. §2626. PERILS, REMOTE AND PROXIMATE. An in- surer is liable for a loss of which a peril insured a.^ainst was the proximate cause; although a peril not contemplated by the contract may have been a remote cause of the loss; blit- he is not liable for a loss of which the peril insured against was only a remote cause. History: Enacted March 21, 1872. §2627. LOSS INCURRED IN RESCUE FROM PERIL. An insurer is liable where the thing insured is rescued from a peril insured against, that would otherwise have caused a loss, if in the course of such rescue the thing is exposed to a peril not insured against, which permanently deprives the insured of its possession, in whole or in part; or where a loss is caused by efforts to rescue the thing insured from a peril insured against. History: Enacted March 21, 1872. §2628. EXCEPTED PERILS. Where a peril is specially excepted in a contract of insurance, a loss, which would not have occurred but for such peril, is thereby excepted; al- though the immediate cause of the loss was a peril which was not excepted. History: Enacted March 21, 1872. 852 Tit.XI,cli.I,art.IX.] NEGLIGENCE. §2629 § 2629. NEGLIGENCE AND FRAUD. An insurer is not liable for a loss caused by the wilful act of the insured; but he is not exonerated by the negligence of the insured, or of his agencs or others. History: Enacted March 21, 1S72; amended March 30, 1874, Code Amdts. 1S73-4, p. 256. 853 §§2633-2634 CIVIL code. [Div.III.Pt.IV. ARTICLE X. NOTICE OF LOSS. § 2633. Notice of loss. § 2633a. Time for giving notice of accident, etc. § 2634. Preliminary proofs. § 263.5. Waivers of defects in notice, etc. § 2636. Waiver of delay. § 2637. Certificate, when dispensed with. §2633. NOTICE OF LOSS. In case of loss upon an in- surance against fire, an insurer is exonerated, if notice there- of be not given to him by some person insured, or entitled to the benefit of the insurance, without unnecessary delay. History: Enacted March 21, 1872; amended March 30, 1S74, Code Amdts. 1873-4, pp. 256-7. § 2633a. TIME FOR GIVING NOTICE OF ACCIDENT, ETC. No conditions, stipulations or agreements contained in any application for nisurance in any foreign or domestic casualty or accident insurance company, or contained in any policy issued by any such company-, or in anj- way made by any such company, limiting the time within which notice of the accident or injury, or death, shall be given to such company to a period o: less than twenty days after the hap- pening of the accident, or injury, or death, shall be valid. Said notice may be given to the company insuring, at any time within twenty days after the happening of the accident, or injur}', or death and shall be valid and binding on the company. History: Enacted June 6, 1913, Stats, and Amdts. 1913, p. 677. In effect August 10, 1913. §2634. PRELIMINARY PROOFS. When preliminary proof of loss is required by a policy, the insured is not bound 854 Tit.XI,ch.I,art.X.] WAIVERS. §§2635-2637 to give such proof as would be necessary in a court of jus- tice; but it is sufificient for him to give the best evidence v^hich he has in his power at the time. History: Enacted March 21, 1S72. §2635. WAIVERS OF DEFECTS IN NOTICE, ETC. All defects in a notice of loss, or in preliminary proof there- of, which the insured might remedy, and which the insurer omits to specify to him, without unnecessary delay, as grounds of objection, are waived. History: Enacted March 21, 1872. §2636. WAIVER OF DELAY. Delay in the presenta- tion to an insurer of notice or proof of loss is waived, if caused by any act of his, or if he omits to make objection promptly and specifically upon that ground. History: Enacted March 21, 1872. §2637. CERTIFICATE, WHEN DISPENSED WITH. If a policy requires, by way of preliminary proof of loss, the certificate or testimony of a person other than the in- sured, it is sufficient for the insured to use reasonable dili- gence to procure it, and in case of the refusal of such per- son to give it, then to furnish reasonable evidence to the insurer that such refusal was not induced by any just grounds of disbelief in the facts necessary to be certified. History: Enacted March 21, 1872. 855 §§2641,2642 civil code. [Div.III,Pt.IV. ARTICLE XI. DOUBLE INSURANCE. § 2641. Double insurance. § 2642. Contribution in case of double insurance. §2641. DOUBLE INSURANCE. A double insurance ex- ists where the same person is insured by several insurers separately in respect to the same subject and interest. History: Enacted March 21, 1872. § 2642. CONTRIBUTION IN CASE OF DOUBLE IN- SURANCE. In case of double insurance, the several insur- ers are liable to pay losses thereon as follows: 1. In fire insurance, each insurer must contribute ratably towards the loss, without regard to the dates of the several policies. 2. In marine insurance, the liability of the several insurers for a total loss, whether actual or constructive, where the policies are not simultaneous, is in the order of the dates of the several policies; no liability attaching to a second or other subsequent policy, except as to the excess of the loss over the amount of all previous policies on the same inter- est. If two or more policies bear date upon the same date, they are deen'.ed to be simultaneous, and the liability of in- surers on simultaneous policies is to contribute ratably with each other. The insolvency of any of the insurers does not aflfect the proportionate liability of the other insurers. The liability of all insurers on the same marine interest for a partial or average loss, is to contribute ratably. History: Enacted March 21, 1S72; amended March 30, 1S74, Code Amdts. 1873-4, p. 257. 856 Tit.XI,ch.I,art.Xn.] REINSURANCK. §§2646-2649 ARTICLE XII. REINSURANCE. § 2646. Reinsurance, what. § 2647. Disclosures required. § 2648. Reinsurance presumed to be against lial)ility. § 2649. Original insured has no interest. §2646. REINSURANCE, WHAT. A contract of rein- surance is one by which an insurer procures a third person to insure him against loss or lial)ility by reason of such orig- inal insurance. History: Enacted March 21, 1872. §2647. DISCLOSURES REQUIRED. Where an insurer obtains reinsurance, he must communicate all the representa- tions of the original insured, and also all the knowledge and information he possesses, whether previously or subsequently acquired, which are material to the risk. History: Enacted March 21, 1872. §2648. REINSURANCE PRESUMED TO BE AGAINST LIABILITY. A reinsurance is presumed to be a contract of indemnity * against liability, and not merely against damage. History: Enacted March 21, 1872. §2649. ORIGINAL INSURED HAS NO INTEREST. The original insured has no interest in a contract of rein- stirance. History:. Enacted March 21, 1872. 857 §2655 CIVIL CODE. [Div.III.Pt.IV. CHAPTER II. MARINE INSURANCE. [Commissioners' note: "Rules respecting marine insurance which are but applications of the principles of international law to this subject are not embraced in these provisions, as they are not within the scope of a municipal statute."] Article I. Definition of Marine Insurance, § 2655. II. Insurable Interest, §§2659-2665. III. Concealment, §§2669-2672. IV. Representations, §§ 2676-2677. V. Implied Warranties, §§2681-2688. VI. The Voyage, and Deviation, §§ 2692-2697. VII. Loss, §§2701-2712. VIII. Abandonment, §§2716-2732. IX. Measure of Indemnity, §§ 2736-2746. ARTICLE I. DEFINITION OF MARINE INSURANCE. § 2655. Marine insurance, what. §2655. MARINE INSURANCE, WHAT. Marine insur- ance is an insurance agamst risks connected with naviga- tion, to which a ship, cargo, freightage, profits, or other in- surable interest in movable property, may be exposed dur- mg a certain voyage or a fixed period .of time. History: Enacted March 21, 1872. 858 Tit.XI,ch.II,art.II.] INSURABLE INTEREST. §§2659-2662 ARTICLE II. INSURABLE INTEREST. 2659. Insurable interest in a sliip. 2660. Interest reduced by bottomry. 2661. Freightage, what. 2662. Expected freightage. 2663. Interest in expected freiglitage, what. 2664. Insurable interest in profits. 2665. Insurable interest of charterer. §2659. INSURABLE INTEREST IN A SHIP. The owner of a ship has in all cases an insurable interest in it, even when it has been chartered by one who covenants to pay him its value in case of loss. History: Enacted March 21, 1872. §2660. INTEREST REDUCED BY BOTTOMRY. The instirable interest of the owner of a ship hypothecated by bottomry is only the excess of its value over the amount secured by bottomry. History: Enacted March 21, 1872. §2661. FREIGHTAGE, WHAT. Freightage, in the sense of a policy of marine insurance, signifies all the benefit de- rived by the owner, either from the chartering of the ship cr its employment for the carriage of his own goods or those of others. History: Enacted March 21, 1872. §2662. EXPECTED FREIGHTAGE. The owner of a ship has an insurable interest in expected freightage which 859 §§2663-2665 civil code. [Div.III.Pt.IV. he would have certainly earned but for the intervention ol a peril insured against. History: Enacted March 21, 1872. §2663. INTEREST IN EXPECTED FREIGHTAGE, WHAT. The interest mentioned in the last section exists, in the case of a charter party, when the ship has broken ground on the chartered voyage, and if a price is to be paid for the carriage of goods when they are actually on board, or there is some contract for putting them on board, and both ship and goods are ready for the specified voyage. History: Enacted March 21, 1872. §2664. INSURABLE INTEREST IN PROFITS. One who has an interest in the thing from which profits are ex- pected to proceed, has an insurable interest in the profits. History: Enacted March 21, 1872. §2665. INSURABLE INTEREST OF CHARTERER. The charterer of a ship has an insurable interest in it, to the extent that he is liable to be damnified by its loss. History: Enacted March 21, 1872. 860 Tit.XLch.II.art.IIL] CONCEALMENT. §§2669-2672 ARTICLE III. CONCEALMENT. § 2669. Information must be communicated. § 2670. Material information. § 2671. Presumption of knowledg-e of lo.ss. § 2672. Concealments which only affect the risk in question. §2069. INFORMATION MUST BE COMMUNI- CATED. In marine insurance each party is bound to com- municate, in addition to what is required by section two thousand five hundred and sixty-three, all the information which he possesses, material to the risk, except such as is mentioned in section two thousand five hundred and sixty- Jour, and to state the exact and whole truth in relation to ;ill matters that he represents, or upon inquiry assumes to disclose. History: Enacted March 21, 1872. §2670. MATERIAL INFORMATION. In marine in- surance, information of the belief or expectation of a third person, in reference to a material fact, is material. Historj't Enacted March 21, 1872. §2671. PRESUMPTION OF KNOWLEDGE OF LOSS. A person insured by a contract of iparine insurance is pre- sumed to have had knowledge, at the time of insuring, of a prior loss, if tlie information might possibly have readied him in the usual mode of transmission, and at the usual rate of communication. History: Enacted March 21, 1872. §2672. CONCEALMENTS WHICH ONLY AFFECT THE RISK IN QUESTION. A concealment in a marine 861 §2672 CIVIL CODE. [Div.III.Pt.IV. insurance, in respect to any of the following matters, does not vitiate the entire contract, but merely exonerates the insurer from a loss resulting from the risk concealed: 1. The national character of the insured; 2. The liability of the thing insured to capture and deten- tion; 3. The liability to seizure from breach of foreign laws of trade; 4. The want of necessary documents; and, 5. The use of false and simulated papers. History: Enacted March 21, 1872. 862 Tit.XI,ch.II,arts.IV,V.] REPRESENTATIONS. §§2676-2681 ARTICLE IV. REPRESENTATIONS. § 2676. Effect of intentional falsity. § 2677. Representation of expectation. §2676. EFFECT OF INTENTIONAL FALSITY. If a representation, by a person insured by a contract of marine insurance, is intentionally false in any respect, whether ma- terial or immaterial, the insurer may rescind the entire con- tract. History: Enacted March 21, 1872. §2677. REPRESENTATION OF EXPECTATION. The eventual falsity of a representation as to expectation does not, Ml the absence of fraud, avoid a contract of insurance. History; Enacted March 21, 1872. ARTICLE V. IMPLIED WARRANTIES. § 2681. Warranty of seaworthiness. § 2682. Seaworthiness, what. § 2683. When complied with. [Exceptions.] § 2684. What things are required to constitute seaworthin(^ss. § 2685. Different degrees of seaworthiness at different stages of the voyage. § 2686. Unseaworthiness during the voyage. § 2687. Seaworthiness for purposes of insurance on cargo. § 2688. Neutral papers. §268L WARRANTY OF SEAWORTHINESS. In ev- ery marine insurance upon a ship or freight, or freightage. 863 §§2682-2684 CIVIL code. f Div.III.Pt.IV. or upon anything which is the subject of marine insurance, a warranty is implied that the ship is seawortliy. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1S73-4, p. 257. §2682. SEAWORTHINESS, WHAT. A ship is sea worthy when reasonably fit to perform the services, and to encounter the ordinary perils of the voyage, contemplated by the parties to the policy. History: Enacted March 21, 1872. §2683. WHEN COMPLIED WITH. [EXCEPTIONS.] An implied v/arranty of seaworthiness is complied with if the ship be seaworthy at the time of tlie commencement of the risk, except in the following cases: 1. When the insurance is made for a specihed length of time, the implied warranty is not complied with, unless the ship be seaworthy at the commencement of every voyage she may undertake during that time; and, 2. When the insurance is upon the cargo, which, by the terms of the policy, or the description of the voyage, or the established custom of the trade, is to be transhipped at an mtermediate port, tlie implied warranty is not complied with, unless each vessel tipon which the cargo is shipped, or tran- shipped, be seaworthy at the commencement of its particu- lar voyage. HLstory: Enacted March 21, 1872; amended March 30. 1874, Code Amdts. 1S73-4, p. 258. §2684. WHAT THINGS ARE REQUIRED TO CON- STITUTE SEAWORTHINESS. A warranty of seaworthi- ness extends not only to the condition of the structure of the ship itself, but requires that it be properly laden, and pro- vided with a competent master, a sufficient number of com- petent officers and seamen, and the requisite appurtenances 864 Tit.XI,ch.II,art.V.] SEAWORTHINESS. §§2685-2688 and equipments, such as ballast, cables, and anchors, cord- age and sails, food, water, fuel, and lights, and other neces- sary or proper stores and implements for the voyage. History: Enacted March 21, 1872. §2685. DIFFERENT DEGREES OF SEAWORTHI- NESS AT DIFFERENT STAGES OF THE VOYAGE. Where different portions of the voyage contemplated by a policy differ in respect to the things requisite to make the ship seaworthy therefor, a warranty of seaworthiness is com- plied with if, at the commencement of each portion, the ship is seaworthy with reference to that portion. History: Enacted March 21, 1872. §2686. UNSEAWORTHINESS DURING THE VOY- AGE. -When a ship becomes unseaworthy during the voy- age to which an insurance relates, an unreasonable delay in repairing the defect exonerates the insurer from liability from any loss arising therefrom. History: Enacted March 21, 1872. §2687. SEAWORTHINESS FOR PURPOSES OF IN- SURANCE ON CARGO. A ship which is seaworthy for the purpose of an insurance upon tlie ship may, nevertheless. by reason of being unfitted to receive the cargo, be unsea- v/orthy for the purpose of insurance upon the cargo. HLstory: Enacted March 21, 1872. §2688. NEUTRAL PAPERS. Where the nationality or neutrality of a ship or cargo is expressly warranted, it is implied that the ship will carry the requisite documents to show such nationality or neutrality, and that it will not carry any documents which cast reasonable suspicion thereon. History: Enacted March 21, 1872. 28 865 §§2692-2695 CIVIL CODE. [Div.III.Pt.IV. ARTICLE VI. THE VOYAGE AND DEVIATION. § 2G92. Voyage insured, how determined. § 2693. Course of sailing-, how determined. § 2694. Deviation, what. § 2695. When proper. § 2696. When improper. § 2697. Deviation exonerates the insurer. §2692. VOYAGE INSURED, HOW DETERMINED. 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 mercan- tile usage between those places. HLstory: Enacted March 21, 1S72. §2693. COURSE OF SAILING, HOW DETERMINED. If the course of sailing is not fixed by mercantile usage, the voyage insured by a policy is the way between the places specified which, to a master of ordinary skill and discretion, would seem the most natural, direct, and advantageous. History: Enacted March 21, 1872. §2694. DEVIATION, WHAT. Deviation is a departure from the course of the voyage insured, mentioned in the last two sections, or an unreasonable delay in pursuing the voy- age, or the commencement of an entirely different voyage. History: Enacted March 21, 1S72. §2695. WHEN PROPER. A deviation is proper: 1. When caused by circumstances over which neither the master nor the owner of the ship has any control; 866 Tit.XI,cli.ll,art.\ I.J DEVIATION. §§2696,2697 2. When necessary to complj' witli a \varrant\-. ur lo avoid a peril, whether insured against or not; 3. When made in good faith, and upon reasonable grounds of belief in its necessity to avoid a peril; or, 4. When made in good faith, for the purpose of saving human life, or relieving another vessel in distress. Hisy which one engages to save another from a legal conse- quence of the conduct of one of the parties, or of some other person. History: Enacted March 21, 1872. §2773. INDEMNITY FOR A FUTURE WRONGFUL ACT VOID. An agreement to indemnify a person against an act thereafter to be done, is void, if the act be known by such person at the time of doing it to be unlawful. History! Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 259. §2774. INDEMNITY FOR A PAST WRONGFUL ACT VALID. An agreement to indemnify a person against an act already done, is valid, even though the act was known to be wrongful, unless it was a felony. History: Enacted March 21, 1872. 884 Tit.XIL] INDEMNITY— RULES OF. §§2775-2778 §2775. INDEMNITY EXTENDS TO ACTS OF AGENTS. An agreement to indemnify against the acts of a certain person, applies not only to his acts and their con- sequences, but also to those of his agents. History: Enacted March 21, 1872. § 2776. INDEMNITY TO SEVERAL. An agreement to indemnify several persons applies to each, unless a contrary intention appears. History: Enacted March 21, 1872. §2777. PERSONS INDEMNIFYING LIABLE JOINT- LY OR SEVERALLY WITH PERSON INDEMNIFIED. One who indemnifies another against an act to be done by the latter, is liable jointly with the person indemnified, and separately, to every person injured by such act. History: Enacted March 21; 1872. §2778. RULES FOR INTERPRETING AGREEMENT OF INDEMNITY. In the interpretation of a contract of indemnity, the following rules are to be applied, unless a contrary interition appears: 1. Upon an indemnity against liability, expressly, or in other equivalent terms, the person indemnified is entitled to recover upon becoming liable; 2. Upon an indemnity against claims, or demands, or dam- ages, or costs, expressly, or in other equivalent terms, the person indemnified is not entitled to recover without pay- ment thereof; 3. An indemnity against claims, or demands, or liability, expressly, or in other equivalent terms, embraces the costs of defense against such claims, demands, or liability incurred in good faith, and in the exercise of a reasonable discretion; 4. The person indemnifying is bound, on request of the person indemnified, to defend actions or proceedings brought 885 §§2779.2780 civil code [Div.III.Pt.IW against the latter in respect to the matters embraced by the indemnity, but the person indemnified has the right to con- duct such defenses, if he chooses to do so; 5. If, after request, the person indemnifying neglects to defend the person indemnified, a recovery against the latter [,] suffered by him in good faith, is conclusive in his favor against the former; 6. If the person indemnifymg, whether he is a principal or a surety in the agreement, has not reasonable notice of the action or proceeding against the person indemnified, or is not allowed to control its defense, judgment against the lat- ter is only presumptive evidence against the former; 7. A stipulation that a judgment against the person in- demnified shall be conclusive upon the person indemnifying, is inapplicable if he had a good defense upon the merits, which by want of ordinary care he failed to establish in the action. History: Enacted March 21. 1S72. §2779. WHEN PERSON INDEMNIFYING IS A SURETY. Where one, at the request of another, engages to answer in damages, whether liquidated or unliquidated, for any violation of duty on the part of the latter, he is entitled to be reimbursed in the same manner as a surety, for whatever he may pay. History: Enacted March 21, 1872. §2780. BAIL, WHAT. Upon those contracts of indem- nity which are taken in legal proceedings as security for the performance of an obligation imposed or declared by the tribunals, and known as undertakings or recognizances, the sureties are called bail. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 416, held unconstitutional, see history, § 4, ante. Tit.XIT.l REGULATION OF. §2781 §2781. HOW REGULATED. The obligations of hail arc governed hy the statutes specially applicable thereto. History: Enacted March 21, 1872; amended by Code Commi!;- .'iion, Act March 16, 1901, Stats, and Amdts. 1900-], p. 416, held unconstitutional, see history, § 4 ante. 887 §2787 CIVIL CODE [Div.IILPt.IV TITLE XIII. GUARANTY Chapter I. Guaranty in General, §§2787-2825. II. Suretyship, §§2§31-2866. CHAPTER I. GUARANTY IN GENERAL. Article I. Definition of Guaranty, §§2787-2788. II. Creation of Guaranty, §§2792-2795. III. Interpretation of Guaranty, §§2799-2802. IV. Liability of Guarantors, §§2806-2810. V. Continuing Guaranty, §§ 2814, 2815. VI. Exoneration of Guarantors, §§ 2819-2825. ARTICLE I. DEFINITION OF GUARANTY. § 2787. Guaranty, what. § 2788. Knowledge of principal not necessary to creation of guaranty. §2787. GUARANTY, WHAT. A guaraanty is a promise to answer for tlie debt, default, or miscarriage of another person. History: Enacted March 21, 1872, founded upon § 12, Act April 19, 1850, Stats. 1850, p. 267. Tit.XIII.ch.I.art.I.] GUARANTY. §2788 §2788. KNOWLEDGE OF PRINCIPAL NOT NECES- SARY TO CREATION OF GUARANTY. A person may become guarantor even without the knowledge or consent cf the principal. History: Enacted March 21, 1872, founded upon Code Na- poleon, art. 2014. 889 §§2792-2794 CIVIL CODE [Div.Il 1,1't.I V ARTICLE II. CREATION OF GUARANTY. § 2792. Neces.sity of a consideration. § 2793. Guaranty to be in writing, etc. § 2794. Engagement to answer for obligation of another, when deemed original. § 2795. Acceptance of guaranty. § 2792. NECESSITY OF A CONSIDERATION. Where a guaranty is entered into at the same time with the orig- inal obligation, or with the acceptance of the latter by the guarantee, and foims with that obligation a part of the con- sideration to hiin, no other consideration need exist. In all other cases there must be a consideration distinct from that cf the original obligation. History: Enacted March 21, 1S72. §2793. GUARANTY TO BE IN WRITING, ETC. Ex- cept as prescribed by the next section, a guaranty must be in writing, and signed by the guarantor; but the writing need not express a consideration. History: Enacted March 21, 1872, founded upon § 12, Act April 19, 1850, Stats. 1850, p. 267. §2794. ENGAGEMENT TO ANSWER FOR OBLIGA- TION OF ANOTHER, WHEN DEEMED ORIGINAL. A promise to answer for the obligation of another, in any of the following cases, is deemed an original obligation of the promisor, and need not be in writing: 1. Where the promise is made bj^ one who has received property of another upon an undertaking to apply it pur- suant to such promise; or by one who has received a dis- 890 Tit.XIII,ch.I.art.IT.l OBLIGATION. §2795 charge from an obligation in whole or in part, in considera- tion of such promise; 2. Where the creditor parts with value, or enters into an obligation, in consideration of the obligation in respect to which the promise is made, in terms or under circumstances such as to render the party making the promise the principal debtor, and the person in whose behalf it is made, his suretj'; 3. Where the promise, being for an antecedent obligation of another, is made upon the consideration that the party receiving it cancels the antecedent obligation, accepting the nevi^ promise as a substitute therefor; or upon the considera- tion that the party receiving it releases the property of an- other from a levy, or his person from imprisonment under an execution on a judgment obtained upon the antecedent obligation; or upon a consideration beneficial to the prom- isor, w^hether moving from either party to the antecedent obligation, or from another person; 4. Where a factor undertakes, for a commission, to sell merchandise and guaranty the sale; 5. Where the holder of an instrument for the payment of money, upon which a third person is or may become liable to him, transfers it in payment of a precedent debt of his own, or for a new- consideration, and in connection with such transfer enters into a promise respecting such instrument. History: Enacted March 21, 1872. §2795. ACCEPTANCE OF GUARANTY. A mere offer to guaranty is not binding, until notice of its acceptance is communicated by the guarantee to the guarantor; but an ab- solute guaranly is binding upon the guarantor without notice of acceptance. History: Enacted Marcli 21, 1872. 891 §§2799-2801 CIVIL code [Div.III,Pt.IV. ARTICLE III. INTERPRETATION OF GUARANTY. § 2799. Guaranty of incomplete contract. § 2800. Guaranty that an obligation is good or collectable. § 2801. Recovery upon such guaranty. § 2802. Guarantor's liability upon such guaranty. §2799. GUARANTY OF INCOMPLETE CONTRACT. In a guaranty of a contract, the terms of which are not then settled, it is implied that its terms shall be such as will not expose the guarantor to greater risks than he would incur under those terms which are most common in similar con- tracts at the place where the principal contract is to be per- formed. History: Enacted March 21, 1872. §2800. GUARANTY THAT AN OBLIGATION IS GOOD OR COLLECTABLE. A guaranty to the effect that an obligation is good, or is collectable, imports that the debtor is solvent, and that the demand is collectable by the usual legal proceedings, if taken with reasonable diligence. History: Enacted March 21, 1872. §2801. RECOVERY UPON SUCH GUARANTY. A guaranty, such as is mentioned in the last section, is not discharged by an ou'iission to take proceedings tipon the principal debt, or upon any collateral security for its pay- ment, if no part of the debt could have been collected thereby. History: Enacted March 21, 1872. 892 Tit.XIII.ch.I.art.III.] LIABILITY. §2802 §2802. GUARANTOR'S LIABILITY UPON SUCH GUARANTY. In the cases mentioned in section two thou- sand eight hundred, the removal of the principal from the state, leaving no property therein from which the obligation might be satisfied, is equivalent to the insolvency of the principal in its effect 'ipon the rights and obligations of the guarantor. History: Enacted March 21, 1872. 893 §§2806-2809 civil coi^jo [Div.IIl.l't.l V. ARTICLE IV. LIABILITY OF GUARANTORS. § 2S0(). (juaranty, how construed. § 2807. Liability upon guaranty of payment or performance. § 2808. Liability upon guaranty of a conditional obligation. § 2809. Obligation of guarantor cannot exceed that of the principal. § 2S10. Guarantor not liable on an illegal contract. §2806. GUARANTY, HOW CONSTRUED. A guaranty is to be dcettied unconditional unless its terms import some condition precedent: to the liability of the guarantor. Historj-: Enacted March 21, 1872. §2807. LIABILITY UPON GUARANTY OF PAY- MENT OR PERFORMANCE. A guarantor of payment or performance is liable to the guarantee immediately upon the default of the principal, and without demand or notice. History: Enacted March 21, 1872. § 2808. LIABILITY UPON GUARANTY OF A CONDI- TIONAL OBLIGATION. Where one guarantees a condi- tional obligation, his liability is commensurate with that of the principal, and he is not entitled to notice of the default of the principal, unless he is unable, bj- the exercise of rea- sonable diligence, to acqtxire information of such defatilt, and the creditor has actual notice thereof. History: Enacted March 21, 1872. §2809. OBLIGATION OF GUARANTOR CANNOT EXCEED THAT OF THE PRINCIPAL. The obligation of a guarantor must be neither larger in amount nor in other 894 Tjt.Xin,cli.I,arl.IV.] J^A.KCAJ. contract. §2810 respects more burdensome than that of the principal, and if in its terms it exceeds it, it is reducible in proportion to the principal obligation. History: Enacted March 21, 1872, founded upon Code Na- poleon, art. 2013. §2810. GUARANTOR NOT LIABLE ON AN IL- LEGAL CONTRACT. A guarantor is not liable if the con- tract of the principal is unlawful; but he is liable notwith- standing any mere personal disability of the principal, though the disability be such as to make the contract void against the principal. History: Enacted March 21, 1872. 895 §§2814,2815 CIVIL CODE [Div.III.Pt.IV. ARTICLE V. CONTINUING GUARANTY. § 2814. Continuing guaranty, what. § 2815. Revocation. §2814. CONTINUING GUARANTY, WHAT. A guar- anty relating to a future liability of the principal, under suc- cessive transactions, which either continue his liability or from time to time renew it after it has been satisfied, is called a continuing guaranty. History: Enacted March 21, 1872. § 2815. REVOCATION. A continuing guaranty may be revoked at any lime by the guarantor, in respect to future transactions, unless there is a continuing consideration as to such transactions which he does not renounce. History: Enacted March 21, 1872. 896 Tit.XIII,ch.I,art.VI.] exoneration. §§2819-2821 ARTICLE VI. EXONERATION OF GUARANTORS. § 2S19. Wiiat dealings with debtor exonerate guarantor. § 2820. Void promises. § 2821. Rescission of alteration. § 2S22. Part performance. § 2823. Delay of creditor does not discliarge guarantor. § 2824. Guarantor indemnified by the debtor, not exonerated. § 2825. Discliarge of principal by act of law does not discharge guarantor. §2819. WHAT DEALINGS WITH DEBTOR EXON- ERATE GUARANTOR. A guarantor is exonerated, except so far a.; he may be indemnified by the principal, if by any act of the creditor, withotit the consent of the guarantor, the original obligation of the principal is altered in any re- spect, or the remedies or rights of the creditor against the principal, in respect tliereto, in. any way impaired or sus- pended. History: Enacted March 21, 1S72. §2820. VOID PROMISES. A promise by a creditor, which for any cause is void, or voidable by him at his op- lion, does not alter the obligation or suspend or impair the remedy, within the meaning of the last section. History: Enacted March 21. 1ST2. §2821. RESCISSION OF ALTERATION. The rescis- sion of an agreement altering the original obligation of a debtor, or inipairing the remedy of a creditor, does not re- -■^tore the liability of a guarantor who has been exonerated by such agreement. Hi.story: Enacted March 21, 1872. 29 897 §ij 2822-2825 civil codk f Div.ITI.Pt.IV. §2822. PART PERFORMANCE. The acceptance, by a creditor, of anything in partial satisfaction of an obligation, reduces the obligation of a guarantor thereof, is [in] the same measure as that of the principal, but does not other- wise affect it. History: Enacted March 21, 1S72. §2823. DELAY OF CREDITOR DOES NOT DIS- CHARGE GUARANTOR. Mere delay on- the part of a cred- itor to proceed against the principal, or to enforce any other remedy, does not exonerate a guarantor. History: Enacted March 21, 1S72. §2824. GUARANTOR INDEMNIFIED BY THE DEBTOR, NOT EXONERATED. A guarantor, who has been indemnified by the principal, is liable to the creditor to the extent of the indemnity, notwithstanding that the cred- itor, without the assent of the guarantor, may have modified the contract or released the principal. History: Enacted March 21, 1872. §2825. DISCHARGE OF PRINCIPAL BY ACT OF LAW DOES NOT DISCHARGE GUARANTOR. A guar- antor is not exonerated by the discharge of his principal by operation of law, without the intervention or omission of the creditor. History: Enacted March 21,, 1S72. 898 Tit.XllI.ch.II.art.I.J SURETYSHIP. §§2831,2832 CHAPTER II. SURETYSHIP. Article I. Who Are Sureties. §§2831,2832. II. Liability of Sureties, §§2836-2840. III. Rights of Sureties, §§2844-2850. I\'. Rights of Creditors, §2854. \". Letter of Credit, §§2858-2866. ARTICLE I. WHO .ARE SURETIES. § 2S31. Surety, what. § 2832. Apparent principal may slunv that he i.s surety. §2831. SURETY, WHAT. A .surety is one who at the request of arother, and for the purpose of securing to him a benefit, becomes responsible for the performance by the latter of some act in favor of a third person, or hypothecates property as security therefor. History: Enacted March 21, 1872. §2832. APPARENT PRINCIPAL MAY SHOW THAT HE IS SURETY. One who appears to be a principal. Vv'hether by ihe terms of a written instrument or otherwise, may show that he is in fact a surety, except as against per- sons who have acted on the Taitb of his apparent character of principal. lii.stor.v: Enacted March 21. 1S72. 899 §§2836-2839 civil code [Div.III,Pt.lV. ARTICLE II. LIABILITY OF SURETIES. § 2836. Limit of surety's obligation. . § 2837. Rules of interpretation. § 2838. Judgment against surety does not alter the relation. § 2839. Surety exonerated by performance or offer of perform- ance. I 2840. Surety discharged by certain acts of tlie creditor. § 2836. LIMIT OF SURETY'S OBLIGATION. A sure- ty cannot be held beyond the express terms of his contract, and if such contract prescribes a penalty for its breach, he cannot in any case be liable for more than the penalty. HLstory: Enacted March 21. 1S72. §2837. RULES OF INTERPRETATION. In interpret- ing the terms of a contract of suretyship, the same rules are to be observed as in the case of other contracts. History: Enacted March 21, 1872. §2838. JUDGMENT AGAINST SURETY DOES NOT ALTER THE RELATION. Notwithstanding the recovery of judgment by a creditor against a surety, the latter still occupies the relation of surety. History: Enacted March 21. 1872. §2839. SURETY EXONERATED BY PERFORM- ANCE OR OFFER OF PERFORMANCE. Performance of the prmcipal obligation, or an ofifer of such performance, duly made as provided in this code, exonerates a surety. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts., 1873-4, p. 260. 900 Tit.XIII.ch.II.art.lI.] DISCHARGE. §2840 §2840. SURETY DISCHARGED BY CERTAIN ACTS OF THE CREDITOR. A surety is exonerated: 1. In like manner with a guarantor; 2. To the extent to which he is prejudiced by any act of the creditor which would naturally prove injurious to the remedies of the surety or mconsistent 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. Hi.te. "Although the arrangement of this subject is novel, its propriety and advantages will be perceived at a glance. Mortgages are liens, and, under the provisions of this code, nothing more. They are subject, therefore, to all the general rules of liens."] Chapter I. Liens in General, §§2872-2913. II. Mortgage, §§2920-2973. III. Pledge. §§2986-3011. IV. Bottomry, §§3017-3029. V. Respondentia, §§3036-3040. VI. Other Liens, §§3046-3065. VII. Stoppage in Transit, §§3076-3080. CHAPTER I. LIENS IN GENER.\L Article I. Definition of Liens, §§2872-2877. 11. Creation of Liens, §§2881-2884. III. Effect of Liens, §§ 2888-2892. IV. Priority of Liens, §§2897-2899. V. Redemption from Liens, §§ 2903-2905. VI. Extinction of Liens, §§2909-2913. 907 §§2872-2875 civil code [Div.III.Pt.IV. ARTICLE I. DEFINITION OF LIEN. § 2S72. 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. LIEN, WHAT. A Hen is a charge imposed in some mode other than by a transfer in trust upon specilic property by which it is made security for the performance of an act. History: Enacted March 21, 1872; amended February 15, 1878, Code Amdts. 1877-8, p. 88. §2873. LIENS, GENERAL OR SPECIAL. Liens are either general or special. HLstory: Enacted March 21, 1872. § 2874. GENERAL LIEN, WHAT. A general lien is one which the holder thereof is entitled to enforce as a secur- ity for the performance of all the obligations, or all of a par- ticular class of obligations, which exist in his favor against the owner of the property. History: Enacted March 21, 1872. §2875. SPECIAL LIEN, WHAT. A special lien is one which the holder thereof can enforce only as security for the performance of a particular act or obligation, and of such oblitions [obligations] as may be incidental thereto. History: Enacted March 21, 1872. 908 Tit.XIV.ch.I.art.I.] PRIOR LIENS. §§2876,2877 §2876. PRIOR LIENS. Where the holder of a special lien is compelled to satisfj' a prior lien for his own protec- tion, he may enforce payment of the amount so paid by him, as a part of the claim for which his own lien exists. History: Enacted March 21, 1872. §2877. CONTRACTS SUBJECT TO PROVISIONS OF THIS CHAPTER. Contracts of mortgage, pledge, bot- tomrj', or respondentia, are subject to all the provisions of this chapter. History: Enacted March 21, 1872. 909 §§2881-2884 otvtt. codk f Div.TTT.Pt.TV. ARTICLE II. CREATION OF LIENS. § 28S1. Lien, how created. § 2882. No lien for claim not clue. § 2883. Lien on future interest. § 2884. Lien may be created by contract. §2881. LIEN, HOW CREATED. A lien is created: 1. By contract of the parties; or, 2. By operation of law. History: Enacted March 21, 1872. §2882. NO LIEN FOR CLAIM NOT DUE. Xo lien arises by mere operation of law until the time at whicli the act to be secured thereby ought to be performed. History: Enacted March 21, 1872. §2883. LIEN ON FUTURE INTEREST. An agree- ment may be made to create a lien upon propert}' not j'et acquired by the party agreeing to give the lien, or not j'et in existence. In such case the lien agreed for attaches from the time when the party agreeing to give it acquires an in- T^erest in the thing, to the extent of such interest. History: Enacted Marcli 21, 1872. §2884. LIEN MAY BE CREATED BY CONTRACT. A lien may be created by contract, to take immediate effect, as security for the performance of obligations not then in existence. History: Enacted March 21, 1872. 910 Tit.XIV.ch.l.art.llI.l KFFECT— VOID WHEN. §§2888-2891 ARTICLE III. EFFECT OF LIENS. § :iS8S. Lien, or c'ontract for lien, tran.sfer.s no title-. § 2889. Certain contracts void. § 2890. Creation of lien does not imply personal obligation. § 2891. Extent of lien. § 2892. Holder of lien not entitled to compensation. §2888. LIEN, OR CONTRACT FOR LIEN, TRANS- FERS NO TITLE. Notwithstanding an agreement to the contrary, a lien, or a contract for a lien, transfers no title to the property subject to the lien. HLstory: Enacted March 21, 1872. §2889. CERTAIN CONTRACTS VOID. All contracts for the forfeiture of property subject to a lien, in satisfaction of tlie obligation secured thereby, and all contracts in re- straint of the right of redemption from a lien, are void. Hiistor.v: Enacted March 21, 1X72. §2890. CREATION OF LIEN DOES NOT IMPLY PERSONAL OBLIGATION. The creation of a lien does not of itself imply that any person is bound to perform llie act for which the lien is a security. History: Enacted March 21, 1872. §289L EXTENT OF LIEN. The existence of a lien upon property does not of itself entitle the person in whose favor it exists to a lien ui)()n tlic same property for the per- formance of any other (ibbi;alii>ii tlian tliat wliich the hen originally secured. Histury: Enacted March 21, 1872. 911 §2892 CIVIL CODE [Div.III,Pt.IV. §2892. HOLDER OF LIEN NOT ENTITLED TO COMPENSATION. One who holds property by virtue of a lien thereon, is not entitled to coinpensation from the own- er thereof for any trouble or expense which he incurs re- specting it, except to the same extent as a borrower, under sections eighteen hundred and ninety-two and eighteen hun- dred and ninety-three. History: Enacted March 21, 1872. 912 Tit.XIV,ch.I,art.IV.l PRIORITY. §§2897-2899 ARTICLE IV. PRIORITY OF LIENS. § 2897. Priority of liens. § 289^8. Priority of mortgage for price. § 2899. Order of resort to different funds. §2897. PRIORITY OF LIENS. Other things being equal, different liens upon the same property have priority according to the time of their creation, except in cases of bottomry and respondentia. History: Enacted Marcii 21, 1872. §2898. PRIORITY OF MORTGAGE FOR PRICE. A mortgage given for the price of real property, at the time of its conveyance, has priority over all other liens created against the purchaser, subject to the operation of the re- cording laws. History: Enacted March 21, 1872. §2899. ORDER OF RESORT TO DIFFERENT FUNDS. Where one has a lien upon several things, and other persons have subordinate liens upon, or interests in, some but not all of the same things, the person having the prior lien, if he can do so without risk of loss to himself, or of injustice to other persons, must resort to the propertj^ in the following order, on tlie demand of any party inter- ested: 1. To tlie tilings upon whicli he has an exclusive lien; 2. To the things which are subject to the fewest subor- dinate liens; 3. -In like manner inversely to the numl^er of subordinate liens upon the same thing; and, 913 §2899 CIVIL CODK [Div.lII,Pt.IV. 4. When several things are within one of the foregoing classes, and sul)ject to the same number of liens, resort must be had — (1.) To the things whicli have not been transferred since the prior lien was created; (2.) To the things which have been so transferred without a valuable consideration; and, (3.) To the things which have been so transferred for a valuable consideration in the inverse order of the transfer. History: Enacted March 21, 1872. 914 Tit.XTV.ch.T.art.V.l UEDEMPTIOX. §§2903-2905 ARTICLE \'. REDEMPTION P'ROM LIEN. § 2903. Riglit to redeem. Subrogation. § 2904. Rights of inferior lienor. § 2905. Redemption from Hen. how made. §2903. RIGHT TO REDEEM. SUBROGATION. Ev- ery person, liaving an interest in propertj- 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 fore- closed, and, by such redemption, becomes subrogated to all the benefits of the lien, as against all owners of other in- terests in the property, except in so far as he was bound to make such redemption for their benefit. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 417, held unconstitutional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 617. §2904. RIGHTS OF INFERIOR LIENOR. One who has a lien inferior to another, upon the same property, has a right: L To redeem the property in the same manner as its owner might, from the superior lien; and, 2. To be subrogated to all the benefits of the superior lien, when necessary for the projection of his interests, upon satisfying the claim secured thereby. HLstory: Enacted March 21, 1S72. §2905. REDEMPTION FROM LIEN, HOW MADE. Redemption from a lien is made by performing, or offering to perform, the act for the performance of which it is a security, and paying, or offering to pay, the damages, if any, to which the holder of the lien is entitled for delay. History: Enacted March 21, 1872. 915 §3 2909-2911 CIVIL CODE [Div.III.Pt.l V. ARTICLE VI. EXTINCTION OF LIENS. § 2909. Lien deemed accessory to the act whose performance it secures. § 2910. Extinction by sale or conversion. § 2911. Lien extinguished by lapse of time under statute of limitations. § 2912. Apportionment of lien. § 2913. When restoration extinguishes lien. §2909. LIEN DEEMED ACCESSORY TO THE ACT WHOSE PERFORMANCE IT SECURES. A lien is to be deemed accessory to the act for the performance of which it is a security, whether any person is bound for such performance or not, and is extinguishable in like manner with any other accessory obligation. History: Enacted March 21, 1S72. §2910. EXTINCTION BY SALE OR CONVERSION. The sale of any property on which there is a lien, in satis- faction of the claim secured thereby, or in case of personal property, its wrongful conversion by the person holding the lien, extinguishes the lien thereon. History: Enacted March 21, 1872. §2911. LIEN EXTINGUISHED BY LAPSE OF TIME UNDER STATUTE OF LIMITATIONS. A lien is ex- tingtiished by the lapse of the time within which, under the provisions of the Code of Civil Procedure, an action can be brought upon the principal obligation. History: Enacted March 21, 1872. 916 Tit.XIV.cb.I.arl.Vl.] APPORTIONMENT. §§2912.2913 §2912. APPORTIONMENT OF LIEN. The partial per- formance of an act secured by a lien does not extinguish the lien upon any part of the property subject thereto, even if it is divisible. History: Enacted March 21, 1872. §2913. WHEN RESTORATION EXTINGUISHES LIEN. The voluntary restoration of property to its owner by the holder of a lien thereon dependent upon possession extinguishes the lien as to such property, unless otherwise agreed by the parties, and extinguishes it, notwithstanding any such agreement, as to creditors of the owner and per- sons, subsequently acquiring a title to the property, or a lien thereon, in good faith, and for value. History: Enacted March 21, 1872; amended March 30, 1S74, Code Amdts. 187.3-4, p. 260; amended by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 417, held unconstitu- tional, see history, § 4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 617. 917 §2920 OTVTi. CODF, IDiv.ni.Pt.IV. CHAPTER II. MORTGAGE. Article I. Mortgages in General. §§2920-2942. II. Mortgages of Real Property, §§2947-2952. III. Mortgages of Personal Property, §§2955-2973. ARTICLE I. MORTGAGES IN GENERAL. § 2920. Mortgage, what. § 2921. Property adversely held may be mortgaged. § 2922. To be in writing. § 2923. Li'en of a mortgage, wlien special. ? 2924. Transfer, when mortgage, when pledge. § 2925. Transfer made subject to defeasance may be proved. § 2926. Mortgage, on what a lien. § 2927. Mortgage does not entitle mortgagee to possession. § 292S. Mortgage not a personal obligation. § 2929. Waste. § 2930. Subsequently acquired title inures to mortgagee. § 2931. Foreclosure. § 29.'?2. Power of sale. § 2933. Power of attorney to execute. § 2934. Recording assignment of mortgage. § 2935. Not notice to mortgager. § 2936. Mortgage passes by assignment of debt. § 2937. Time allowed for filing mortgage for record [repealed]. § 293S. Mortgage, how discharged. § 2939. Same. [On certificate]. §2939%. Same. How foreign executors and administrators may satisfy mortgages. § 2940. Same. [Record and reference.] § 2941. Duty of mortgagee on satisfaction of mortgage. § 2942. Provisions of this chapter do not affect bottomry or respondentia. 918 Tit.XIV.ch.lI.art.I.] MORTGAGES. §§2920-2925 §2920. MORTGAGE, WHAT. Mortgage is a contract l)y which specific property is hypothecated for the perform- ance of an act, without the necessity of a change of pos- session. Histor.v: Enacted March 21, 1S72. §2921. PROPERTY ADVERSELY HELD MAY BE MORTGAGED. A mortgage may be created upon property licld adversely to the mortgager. Hi.storj-: Enacted March 21, 1872. §2922. TO BE IN WRITING. A mortgage can be cre- ated, renewed, or extended, only by writing, executed with the formalities required in the case of a grant of real prop- erty. History: Enacted March 21, 1872. §2923. LIEN OF A MORTGAGE, WHEN SPECIAL. The lien of a mortgage is special, unless otherwise expressly agreed, and is independent of possession. History: Enacted March 21, 1872. §2924. TRANSFER, WHEN MORTGAGE, WHEN PLEDGE. Every transfer of an interest in property, other than in trust, made only as a security for the performance of another act, is to be deemed a mortgage, except when in the case of personal property it is accompanied by actual change of possession, in which case it is to be deemed a pledge. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 260. §2925. TRANSFER MADE SUBJECT TO DEFEAS- ANCE MAY BE PROVED. The fact that a transfer was made subject to defeasance on a condition, may, for the purpose of showing such transfer to he a mortgage. l)e proved 919 §§2926-2930 civil code [Div.III.Pt.IV. ^^excepl as against a subsequent purchaser or encumbrancfr for value and without notice), though the fact does not ap- pear by the terms of the instrument. History: Enacted March 21, 1872. § 2926. MORTGAGE, ON WHAT A LIEN. A mortgage is a lien upon everything that would pass bj' a grant of the property. History: Enacted March 21, 1872. §2927. MORTGAGE DOES NOT ENTITLE MORT- GAGEE TO POSSESSION. A mortgage does not entitle the mortgagee to the possession of the property, unless au- thorized by the express terms of the mortgage; but after the execution of the mortgage the mortgager may agree to such change of possession without a new consideration. History: Enacted March 21, 1872. §2928. MORTGAGE NOT A PERSONAL OBLIGA- TION. A mortgage does not bind the mortgager personally to perform the act for the performance of which it is a se- curity, unless there is an express covenant therein to that effect. History: Enacted March 21, 1872. § 2929. WASTE. No person whose interest is subject to the lien of a mortgage may do any act which will substan- tially impair the mortgagee's security. History: Enacted March 21, 1872. §2930. SUBSEQUENTLY ACQUIRED TITLE •INURES TO MORTGAGEE. Title acquired by the mort- gager subsequent to the execution of the mortgage, inures 920 Tit.XIV.ch.II.art.L] FORECLOSURE. §§2931-2935 to the mortgagee as security for the debt, in like manner as if acquired before the execution. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 260. §2931. FORECLOSURE. A mortgagee may foreclose the right of redemption of the mortgager in the manner pre- scribed by tlie Code of Civil Procedure. History: Enacted March 21, 1872. §2932. POWER OF SALE. A power of sale may be conferred by a mortgage upon the mortgagee or any other person, to be exercised after a breach of the obligation foi which the mortgage is a security. History: Enacted March 21, 1872. §2933. POWER OF ATTORNEY TO EXECUTE. A power of attorney to execute a mortgage must be in writing, subscribed, acknowledged, or proved, certified, and recorded in like manner as powers of attorney for grants of real prop- erty. History: Enacted March 21, 1872. §2934. RECORDING ASSIGNMENT OF MORTGAGE. An assignment of a mortgage may be recorded in like man- ner as a mortgage, and such record operates as notice to all persons subsequently deriving title to the mortgage from the assignor. History: Enacted March 21, 1S72; amended March 30, 187 1, Code Amdts. 1873-4, p. 261. §2935. NOT NOTICE TO MORTGAGER. When the mortgage is executed as security for money due, or to be- come due, on a promissory note, bond, or other instrument, 921 §§2936-2939 oiviL CODE | Div.II I.Pt.IV. designated in tlie mortgage, the record of the assignment of the mortgage is not, of itself, notice to a mortgager, his heirs, or personal representatives, so as to invalidate any pay- ment made by them, or either of them, to the person holding such note, bond, or other instrument. History: Enacted March 21, 1ST2; amended March 30, 1S74, Code Amdts. 1873-4. p. 261. §2936. MORTGAGE PASSES BY ASSIGNMENT OF DEBT. Tlie assignment of a del)t secured by mortgage car- ries with it the security. History: Enacted March 21, 1872; amended by Code Commis- .sion, Act March 16, 1901, Stats, and Amdts. 1900-1. p. 417, held unconstitutional, see liistory, § 4 ante. §2937. TIME ALLOWED FOR FILING MORTGAGE FOR RECORD [repealed]. History: Enacted March 21, 1872; repealed Marcli 30, 1874, Code Amdts. 1873-4, p. 261. §2938. MORTGAGE, HOW DISCHARGED. A record- ed mortgage may be discharged by an entry in the margin of the record thereof, signed by the mortgagee, or his per- sonal representative or assignee, acknowledging the satisfac- tion of the mortgage in the presence of the recorder, who must certify the acknowledgment in form substantially as follows: "Signed and acknowledged before me, this day of in the year A B, Recorder." History: Enacted March 21, 1872. §2939. SAME. [ON CERTIFICATE.] A recorded mortgage, if not discharged as provided in the preceding section, must be discharged upon the record by the ofificer having custody thereof, on -the presentation to him of a cer- tificate signed by the mortgagee, his personal representatives 922 Tit.XlV,ch.II,art.I.] DISCHARGE. §§ 2939J/-2941 or assigns, acknowledged or proved and certified as pre- scribed by the chapter on "recording transfers," stating that the mortgage has been paid, satisfied, or discharged. History: Enacted Marcli 21, 1S72. §29391/2- SAME. HOW FOREIGN EXECUTORS AND ADMINISTRATORS MAY SATISFY MORTGAGES. Foreign executors, administrators and guardians may satis- fy mortgages upon the records of any county in this state, upon producing and recording in the ofhce of the county re- corder of the county in which such mortgage is recorded, a duly certified and authenticated copy of their letters testa- mentary, or of administration or of guardianship, and which certificate or authentication shall also recite that said let- ters have not been revoked. HUtory: Enacted March S, 1905, Stats, and Amdts. 1905, p. 28; amended May 19, 1913, Stats, an.l Amdts. 1913, p. 216. lu elf«'ot April 10. 1913. §2940. SAME. [RECORD AND REFERENCE.] A certificate of the discharge of a mortgage, and the proof or acknowledgment thereof, must be recorded at length, and a reference made in the record to the book and page where the mortgage is recorded, and in the minute of the discharge made upon the record of the mortgage to the book and page where the discharge is recorded. History: Enacted March 21, 1872. §2941. DUTY OF MORTGAGEE ON SATISFACTION OF MORTGAGE. When any mortgage has been satisfied, the nidrtgageo or his assignee must immediately, on the de- mand of the mortgager, execute, acknowledge, and deliver to him a certificate of the discharge thereof, so as to entitle it t(i lie recorded, or he must enter satisfaction, or cause satis- faction of such mortgage to be entered of record: and anj- 923 §2942 CIVIL CODK [Div.III,Pt.lV. mortgagee, or assignee of such mortgagee, who refuses to execute, acknowledge, and deliver to the mortgager the cer- tificate of discharge, or to enter satisfaction, or cause satis- faction of the mortgage to be entered, as provided in this chapter, is liable to the mortgager, or his grantee or heirs, for all damages which he or they may sustain by reason of such refusal, and shall also forfeit to him or them the sum of one hundred dollars. History: Enacted March 21, 1S7::; amended March 30, 1S74, Code Amdts. 1873-4, p. 261; April 15, 1880, Code Amdts. 1880 (C. C. pt.), p. 11. §2942. PROVISIONS OF THIS CHAPTER DO NOT AFFECT BOTTOMRY OR RESPONDENTIA. Contracts of bottomry or respondentia, although in the nature of mort- gages, are not affected by any of the provisions of this chapter. History: Enacted March 21, 1872. 924 Tit.XIV.ch.n.art.lI.] FORM OF MORTGAGE. §§2947-2949 ARTICLE II. MORTGAGES OF REAL PROPERTY. § 2947. What real property may be mortgaged. § 294S. Form of mortgage. § 2949. What must be recorded as a mortgage [repealed]. § 2950. Defeasance, to affect grant absolute on Its face, must be recorded. § 2951. By whom paid after property passes by succession or will [repealed]. § 2952. May be recorded. §2947. WHAT REAL PROPERTY MAY BE MORT- GAGED. Any interest in real property which is capable of being transferred may be mortgaged. HLstory: Enacted March 21, 1S72. §2948. FORM OF MORTGAGE. 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 mortgager, to C D, of mortgagee, witnesseth: That the mortgager mortgages to the mortgagee [here de- scribe the property], as security for the payment to him of dollars, on [or before] the day of in the year , with interest thereon [or as security for the payment of an obligation, describing it, etc.]. A. B. HLstory: Enacted March 21, 187 2. §2949. WHAT MUST BE RECORDED AS A MORT- GAGE [repealed]. History: Enacted March 21, 1S72; repealed March 30. 1874, Code Amdts., 1873-4, p. 262. 925 §§2950-2952 civil code [Div.III.Pt.I V. §2950. DEFEASANCE, TO AFFECT GRANT ABSO- LUTE ON ITS FACE, MUST BE RECORDED. When a grant of real property purports to be an absolute convey- ance, but is intended to be defeasable on the performance of certain conditions, such grant is not defeated or affected as against any person other than the grantee or his heirs or de- visees, or persons having actual notice, unless an instrument of defeasance, duly executed and acknowledged, shall have be^n recorded in the office of the county recorder of the county vi^here the property is situated. HLstory: Enacted March 21, 1872. §2951. BY WHOM PAID AFTER PROPERTY PASS- ES BY SUCCESSION OR WILL [repealed]. History: Enacted March 21, 1S72; repealed March 30, 1874, Code Amdts. 1873-4. p. 262. § 2952. MAY BE RECORDED. Mortgages of real prop- erty may be acknowledged or proved, certified and recorded, in like manner and with like effect, as grants thereof. History: Enacted March 21, 1872; amended March 30, 187 i. Code Amdts. 1873-4, p. 262. 926 Tit.XTV.ch.TI.art.III.l PERSONAl>TV. §2953 ARTICLE HI. MORTGAGE OF PERSONAL PROPERTY. § 2955. What personal property may be mortgaged. § 2956. Form of personal mortgage. § 2957. When void as to third persons. § 2958. Mortgage of ships, when void as to third persons. § 2959. Wliere recorded. § 2960. Property in transit, where to be recorded. § 2961. Property of a common carrier^ where to l>e recoi-ded. § 2962. Recorded in different places. § 2963. Personal mortgage may be recorded. § 2964. Certified copies may be recorded, when. § 2965. Property exempt from effect of mortgage, when. § 2966. May be taken by mortgagee as a pledge, when. § 2967. How foreclosed. § 2968. Mortgaged property may be levied upon. § 2969. Limitations on right of levy. § 2970. Distribution of proceeds of sale under process. § 2971. Certain sections not applicable to mortgage of certain ships. § 2972. Continuance of lien of mortgage on crops? § 2973. Mortgages on personal property, validity of certain. S2955. WHAT PERSONAL PROPERTY MAY BE MORTGAGED. Mortgages may l)e made upon all growing crops, including grapes and fruit, and upon any and all kinds of personal property, exc6pt the following: L Personal property not capable of manual delivery; 2. Articles of wearing apparel and personal adornment; 3. The stock in trade of a merchant. History; Enacted March 21, 1872; amended April 3, 1876, Code Amdts. 1875-6, p. 79; April 1, 1878. Code Amdts. 1877-8, p. 88; February 28, 1887, Stats, and Amdts. 1887, p. 5; March 7, 1893, Stats, and Amdts. 1893, p. 84; March 16, 1895, Stats, and Amdts. 1S95, p. 57; March 9, 1897, Stats, and Amdts. 1897, p. 95; March 3, 927 §§2956-2958 civil code [Div.III.Pt.IV. 1903, Stats, and Amdts. 1903, p. IH; March 3. 1905, Stats, and Amdts. 1905, p. 36; March 22, 1907, Stats, and Amdts. 1907, p. 886, Kerr's Stats, and Amdts. 1906-7, p. 427; February 20, 1909, Stats, and Amdts. 1909, p. 34. § 2956. FORM OF PERSONAL MORTGAGE. A mort- gage of personal property may be made in substantially the following- form; This mortgage, made the day of , in the year , by A B, of , by occupation a , mortgager, to C D, of , by occupation a mortgagee, wit- nesseth : That the mortgager mortgages to the mortgagee [here de- scribe the property], as security for the payment to him of dollars, on [or before] the day of , in the year with interest thereon [or, as security for the payment of a note or obligation, describing it, etc.]. A. B. HLstory: Enacted March 21, 1872. §2957. WHEN VOID AS TO THIRD PERSONS. A mortgage of personal property is void as against creditors of the mortgager and subsequent ptirchasers and encumbrancers of the property in good faith and foT: value, unless: 1. It is accompanied by the af^davit of all the parties there- to that it is made in good faith and without any design to hinder, delay, or defraud creditors; 2. It is acknowledged or proved, certified, and recorded in like manner as grants of real property. History: Enacted March 21, 1872. §2958. MORTGAGE OF SHIPS, WHEN VOID AS TO THIRD PERSONS. A mortgage of any vessel or part of any vessel under the flag of the United States is void as against any person (other than the mortgager, his heirs, and 928 Tit.XIV,ch.II,art.ni.l RECORDED whkn. §§2959-2962 devisee, and persons having actual notice thereof j, unless the mortgage is recorded in the otifice of the collector of customs where such vessel is registered or enrolled. History: Enacted March 2\, ISTl!. § 2959. WHERE RECORDED. A mortgage of personal property must be recorded in the office of the county re- corder of the county in which the mortgager resides, if the mortgager be a resident of this state, and it shall also be re- corded in the county in which the property mortgaged is sit- uated, or to which it may be removed. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 417, held unconstitutional, see history, § 593 afite; amended March 22, 1907, Stats, and Amdts. 1907, p. 853, Kerr's Stats, and Amdts. 1906-7, p. 428. In eflEeet immediately. §2960. PROPERTY IN TRANSIT, WHERE TO BE RECORDED. For the purposes of this article, property in transit from the possession of the mortgagee to the county of the residence of the mortgager, or to a location for use, is, during a reasonable time for such transportation, to be taken as situated in the county in which the mortgager re- sides, or where it is intended to be used. History: Enacted March 21, 1S7 2. §2961. PROPERTY OF A COMMON CARRIER, WHERE TO BE RECORDED. For a like purpose, per- sonal property used in conducting the business of a common carrier is to be taken as situated in the county in which the principal office or place of business of the carrier is located. History: Enacted March 21, 187 2. §2962. RECORDED IN DIFFERENT PLACES. A single mortgageof personal property, embracing several 30 929 §§2963-2965 civil code [Div.III.Pt.IV. things of such character or so situated that by the provisions of this article separate mortgages upon them would be re- quired to be recorded in different places, is only valid in respect to the things as to which it is duly recorded. History: Enacted March 21, 1872. §2963. PERSONAL MORTGAGE MAY BE RECORD- ED. Except as it is otherwise in this article provided, mortgages of personal property may be acknowledged, or proved and certified, recorded in like manner and with like effect as grants of real property; but they must be recorded in books kept for personal mortgages exclusively. History: Enacted March 21, 1872. §2964. CERTIFIED COPIES MAY BE RECORDED, WHEN. A certified copy of a mortgage of personal prop- ehty once recorded may be recorded in any other county, and when so recorded the record thereof has the same force and effect as though it was of the original mortgage. Hi.story: Enacted March 21, 1872. §2955. PROPERTY EXEMPT FROM EFFECT OF MORTGAGE, WHEN. When personal property mortgaged is thereafter removed from the county in which it is situ- ated, the lien of the mortgage shall not be affected thereby for thirty days after such removal; but, after the expiration of such thirty days, the property mortgaged is exempted from the operation of the mortgage, except as betv/een the parties thereto, until either: 1. The mortgagee causes the mortgage to be recorded in the county to which the property has been removed; or 2. The mortgagee takes possession of the property as pre- scribed in the next section. History: Enacted March 21, 1872; amended February 22, 1909, Stats, and Amdts. 1909. p. 44. 930 Tit.XTV,ch.II,art.IlI.| HOW FORECLOSED. §§2966-2970 §2966. MAY BE TAKEN BY MORTGAGEE AS A PLEDGE, WHEN. If the mortgager voluntarily removes or permits the removal of the mortgaged property from the county in which it was situated at the time it was mort- gaged, 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. History: Enacted March 21, 1872. §2967. HOW FORECLOSED. A mortgagee of personal property, when the debt to secure which the mortgage was executed becomes due, may foreclose the mortgager's right of redemption by a sale of the property, made in the man- ner and upon the notice prescribed by the title en "pledge," or by proceedings under the code of civil procedure. History: Enacted March 21, 1872. §2968. MORTGAGE PROPERTY MAY BE LEVIED UPON. Personal property mortgaged may be taken under attachment or execution issued at the suit of a creditor of the mortgager. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 417, )ield unconstitutional, see history, § 4 ante. §2969. LIMITATIONS ON RIGHT OF LEVY. Before the property is so taken, the officer must pay or tender to the mortgagee the amount of the mortgage debt and interest, or must deposit the amount thereof with the county clerk or treasurer, payable to the order of the mortgagee. History: Enacted March 21, 1872; aniended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 417, held unconstitutional, see history, § 4 ante. §2970. DISTRIBUTION OF PROCEEDS OF SALE UNDER PROCESS. When the property thus taken is sold 931 §§2971-2973 civil code [Div.III.Pt.IV. under process, the officer must apply tlie 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 proceeds of sales under execution are applied in other cases. History: Enacted March 21, 1872. §2971. CERTAIN SECTIONS NOT APPLICABLE TO MORTGAGE OF CERTAIN SHIPS. Sections twenty-nint hundred and fifty-seven, twenty-nine hundred and fifty-nine, twenty-nine hundred and sixty, twenty-nine hundred and sixty-one, twenty-nine hundred and sixty-two, twenty-nine hundred and sixty-three, twenty-nine hundred and sixty-four, twenty-nine hundred and sixty-five, and twenty-nine hundred and sixty-six do not apply to any mortgage of a ship or part of a ship under the flag of the United States. HLstory: Enacted March 21, 1S72. §2972. CONTINUANCE OF LIEN OF MORTGAGE ON CROP. The lien of a mortgage on a growing crop con- tinues on the crop after severance, whether remaining in its original state or converted into another product, so long as the same remains on the land of mortgager. History: Enacted April J, 187S, Code Anidts. 1S77-8, p. SO. §2973. MORTGAGES ON PERSONAL PROPERTY, VALIDITY OF CERTAIN. Mortgages of personal prop- erty, other than that mentioned in section twenty-nine hun- dred and fifty-five, and mortgages not made in conformity' with the provisions of this article, are nevertheless valid be- tween the parties, their heirs, legatees, and personal repre- sentatives, and persons who, before parting with value, have actual notice thereof. History: Enacted Viy Code Commission, A<'t March 10. 19(il. Stats, and Amdts. 1900-1, p, 418, held unconstitutional, see his- tory, §4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 190.5, p. 617. 932 Tit.XlV,ch.IlI.] PLEDGES. §§2986,2987 CHAPTER III. PLEDGE. § 2986. Pledge, what. § 29S7. When contract is to be deemed a pledge. § 29S8. Delivery essential to validity of pledge. § 2989. Increase of thing. § 2990. Lienor may pledge property to extent of his lien. I 2991. Real owner cannot defeat pledge of property transferred to apparent owner for purpose of pledge. § 2992. Pledge-lender, what. § 2993. Pledge-holder, what. § 2994. When pledge-lender may withdraw property pledged. § 2995. Obligations of pledge-holder. § 2996. Pledge-holder must enforce rights of pledgee. § 2997. Obligation of pledgee and pledge-holder, for reward. § 2998. Gratuitous pledge-holder. § 2999. Debtor's misrepresentation of value of pledge. § 3000. When pledgee may sell. § 3001. When pledgee must demand performance. § 3002. Notice of sale to pledgeor. § 3003. "^^aiver of notice of sale. § 3004. Waiver of demand. § 3005. Sale must be by auction. § 3006. Pledgee's sale of securities. § 3007. Sale, on the demand of the pledgeor. § 3008. Surplus to be paid to pledgeor. § 3009. Pledgee may retain. § 3010. Pledgee's purchase of property pledged. § 3011. Pledgee may foreclose right of redemption. § 2986. PLEDGE, WHAT. Pledge is a deposit of person- al pro])crty In- w a\' of security for the ]>erformance of an- other act. IliNdtry: Kliaitcd Marcli 21, 1X72. S2987. WHEN CONTRACT IS TO BE DEEMED A PLEDGE, Every contract hy which the possession of per- 933 §§2988-2992 civil code [Div.III.Pt.IV. sonal property is transferred, as security only, is to be deemed a pledge. History: Enacted March 21, 1872. §2988. DELIVERY ESSENTIAL TO VALIDITY OF PLEDGE. The lien of a pledge is dependent on possession, and no pledge is valid until the property pledged is delivered to the pledgee, or to a pledge-holder, as hereafter prescribed. History: Enacted March 21, 1872. §2989. INCREASE OF THING. The increase of prop- erty pledged is pledged with the property. History: Enacted March 21, 1872. §2990. LIENOR MAY PLEDGE PROPERTY TO EX- TENT OF HIS LIEN. One who has a lien upon property majr pledge it to the extent of his lien. History: Enacted March 21, 1872. §299L REAL OWNER CANNOT DEFEAT PLEDGE OF PROPERTY TRANSFERRED TO APPARENT OWNER FOR PURPOSE OF PLEDGE. One who has allowed another to assume the apparent ownership of prop- erty for the purpose of making any transfer of it, cannot set up his own title, to defeat a pledge of the property, made by the other, to a pledgee who received the property in good faith, in the ordinary course of business, and for value. History: Enacted March 21, 1S72. §2992. PLEDGE-LENDER, WHAT. Property may be pledged as security for the obligation of another person than the owner, and in so doing the owner has all the rights of a pledgeor for himself, except as hereinafter stated. History: Enacted March 21, 1872. 934 Tit. XlV.ch. 111.1 PLEDGE-HOLDER. §§2993-2997 §2993. PLEDGE-HOLDER, WHAT. A pledgeor and pledgee may agree upon a third person with whom to deposit the property pledged, who, if he accepts the deposit, is called a pledge-holder. History: Enacted March 21, 1872. §2994. WHEN PLEDGE-LENDER MAY WITH- DRAW PROPERTY PLEDGED. One who pledges prop- erty as security for the obligation of another, cannot with- draw the property pledged otherwise than as a pledgeor for himself might, and if he receives from the debtor a con- sideration for the pledge he cannot withdraw it without his consent. History: Enacted March 21, 1872. §2995. OBLIGATIONS OF PLEDGE-HOLDER. A pledge-holder for reward cannot exonerate himself from his undertaking; and a gratuitous pledge-holder can do so only by giving reasonable notice to the pledgeor and pledgee to appoint a new pledge-holder, and in case of their failure to agree, by depositing the property pledged with some impar- tial person, who will then be entitled to a reasonable compen- sation for his care of the same. History: Enacted March 21, 1872. § 2996. PLEDGE-HOLDER MUST ENFORCE RIGHTS OF PLEDGEE. A pledge-holder must enforce all the rights of the pledgee, unless authorized by him to waive them. History: Enacted March 21, 1S72. §2997. OBLIGATION OF PLEDGEE AND PLEDGE- HOLDER, FOR REWARD. A pledgee, or a pledge-hold- er for reward, assumes the duties and liabilities of a deposi- tarj' for reward. History: Enacted March 21, 1872. 935 / §§2998-3002 civil code [Div.III,Pt.TV. §2998. GRATUITOUS PLEDGE-HOLDER. A gratui- tous pledge-holder assumes the duties and liabilities of a gratuitous depositary. History: EnaL-ted Mareli Jl, IbTii. §2999. DEBTOR'S MISREPRESENTATION OF VAL- UE OF PLEDGE. Where a debtor has obtained credit, or an extension of time, by a fraudulent misrepresentation of the value of property pledged by or for him, the creditor may demand a further pledge to correspond with the value represented; and in default thereof may recover his debt im- mediately, though it be not actually due. History: Enacted March 21, 1872, founded upon Civ. Code La., art. 3141. §3000. WHEN PLEDGEE MAY SELL. When per- formance 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 ex- ceptions hereinafter prescribed. History: Enacted March 21, 1872. §3001. WHEN PLEDGEE MUST DEMAND PER- FORMANCE. Before property pledged can be sold, and after performance of the act for which it is security is due, the pledgee must demand performance thereof from the debt- or, if the debtor can be found. Hist«»ry: Enacted Marcli 21, lo72; amended March 30, 1S74, Code Amdts. 1873-4, p. 262. § 3002. NOTICE OF SALE TO PLEDGEOR. A pledgee must give actual notice to the pledgeor of the time and place at which the property pledged will be sold, at such a reason- 936 Tit.XIV.ch.lII.l WAIVER OF NOTICE. §§ 30()3-30()7 able time before the sale as will enable the pledgeor to at- tend. History: Enacted March 21, 1872. §3003. WAIVER OF NOTICE OF SALE. Notice of sale may be waived by a pledgeor at anj' time; l)Ut is not waived by a mere waiver of demand of performance. History: Enacted March 21, 1ST2. § 3004. WAIVER OF DEMAND. A debtor or pledgeor waives a demand of performance as. a condition precedent to a sale of the property pledged, by a positive refusal to perform, after performance is due; but cannot waive it in any other manner except by contract. History: Enacted March 21, 1S72. §3005. SALE MUST BE BY AUCTION. The sale by pledgee, of property pledged, must be made by public auc- tion, in the manner and upon the notice of sale of personal propert}' under execution. History: Enacted IMarch 21, 1ST2, amended April 16, 1909, Stats, and Amdts. 1909, p. 972. §3006. PLEDGEE'S SALE OF SECURITIES. .\ pledgee cannot sell any evidence of debt pledged to him, ex- cept the obligations of governments, states, or corporations; but he may collect the same when due. History: Enacted March 21. 1S72. §3007. SALE ON THE DEMAND OF THE PLEDGE- OR, Whenever property pledged can be sold for a price sufificient to satisfy' the claim of the pledgee, the pledgeor may require it to be sold, and its proceeds to be applied to such satisfaction, when due. History: Enacted March 21, 1872. 937 §§3008-3011 CIVIL CODE [Div.III.Pt.IV. § 3008. SURPLUS TO BE PAID TO PLEDGEOR. Aft- er a pledgee has lawfully sold property pledged, or otherwise collected its proceeds, he may deduct therefrom the amount due under the principal obligation, and the necessary ex- penses of sale and collection, and must pay the surplus to the pledgeor, oji demand. History: Enacted March 21, 1872. §3009. PLEDGEE MAY RETAIN. When property pledged is sold b}' order of the pledgeor before the claim of the pledgee is due, the latter may retain out of the proceeds all that can possibly become due under his claim until it be- comes due. History: Enacted March 21, 1S72; amended March .OO, 1S74. Code Amdt.s. 1873-4, p. 262. §3010. PLEDGEE'S PURCHASE OF PROPERTY PLEDGED. Whenever property pledged is sold at public auction, in the manner provided by section three thousand and five of this code, the pledgee or pledge-holder may pur- chase said property at such sale. History: Enacted March 21, 1S72; amended March 8, 1895, Stats, and Amdts. 1895, p. 26. § 3011. PLEDGEE MAY FORECLOSE RIGHT OF RE- DEMPTION. Instead of selling property pledged, as here- inbefore provided, a pledgee may foreclose the right of re- demption by a judicial sale, under the direction of a compe- tent court; and in that case may be authorized by the court to purchase at the sale. History: Enacted March 21, 1872. 938 Tit.XIV,ch.IV.| BOTTOMRY. §§3017-3019 CHAPTER IV. BOTTOMRY. § 3017. Bottomry, what. § 3018. Owner of ship may hypothecate. § 3019. When master may hypothecate ship. § 3020. Same. [When owner cannot be reached, etc.] § 3021. M^lien master may liypotliecate freiglit money. § 3022. Rate of interest. § 3023. Rights of lender, wlien no necessity for bottomry ex- isted. § 3024. Stipulation for personal liability void. § 3025. When money loaned is to be repaid. § 3026. When bottomry loan becomes due. § 3027. Bottomry lien, how lost. § 3028. Preference of bottomry lien over other liens. § 3029. Priority of bottomry liens. §3017. BOTTOMRY, WHAT. Bottomry is a contract by which a ship or its freightage is hypothecated as secur- ity for a loan, which is to be repaid only in case the ship survives a particular risk, voyage, or period. History: Enacted March 21, 1872. §3018. OWNER OF SHIP MAY HYPOTHECATE. The owner of a ship may hypothecate it or its freightage, upon bottomry, for any lawful purpose, and at any time and place. History: Enacted March 21, 1872. §3019. WHEN MASTER MAY HYPOTHECATE SHIP. The master of a ship may hypothecate it upon bot- tomry only for the purpose of procuring repairs or supplies which are necessary for accomplishing the objects of the voyage, or for securing the safety of the ship. History: Enacted March 21, 1872. 939 §§3020-3024 CIVTT. rODK [Div.TII.Pt.IV. §3020. SAME. [WHEN OWNER CANNOT BE REACHED, ETC.] The master of a ship can hypothecate it upon bottomry only when he cannot otherwise relieve the necessities of the ship, and is unable to reach adequate funds of the owner, or to obtain any upon the personal credit of the owner, and when previous communication with him is precluded by the urgent necessity of the case. History: Enacted March 21, 1872. §3021. WHEN MASTER MAY HYPOTHECATE FREIGHT MONEY. The master of a ship may hypothe- cate freightage upon bottomry, under the same circumstances as those which authorize an hypothecation of the ship by him. History: Enacted March 21, 1ST2. § 3022. RATE OF INTEREST. Upon a contract of bot- tomry', the parties may lawfully stipulate for a rate of interest higher than that allowed by the law upon other contracts. But a competent court may reduce the rate stipulated when it appears unjustifiable and exorbitant. History: Enacted March 21, 1872. §3023. RIGHTS OF LENDER, WHEN NO NECES- SITY FOR BOTTOMRY EXISTED. A lender upon a con- tract of bottomry, made by the master of a ship, as such, may enforce the contract, though the circumstances neces- sary to authorize the master to hypothecate the ship did not in fact exist, if, after due diligence and inquiry, the lender had reasonable grounds to believe, and did in good faith believe, in the existence of such circumstances. Uistorj-: Enacted March 21. 1S72. § 3024. STIPULATION FOR PERSONAL LIABILITY VOID. A stipulation in a contract of bottomry, imposing 940 Tit.XIV.ch.lV.I MONEY r.OANEl). S§ 3025-3029 any liability for the loan independent of the maritime risks, is void. History: Enacted March 21, 3 872. §3025. WHEN MONEY LOANED IS TO BE RE- PAID. In case of a total loss of the thing hypothecated, from a risk to which the loan was subject, the lender upon bottomry can recover nothing; in case of a partial loss, he can recover only to the extent of the net value to the owner of the part saved. History: Enacted March 21. 1872. §3026. WHEN BOTTOMRY LOAN BECOMES DUE. Unless it is otherwise expressly agreed, a bottomry loan liecomes due immediately upon the termination of the risk, although a term of credit is specified in the contract. Hi.story: Enacted March 21, 1872. §3027. BOTTOMRY LIEN, HOW LOST. A bottom- ry lien is independent of possession, and is lost by omission to enforce it within a reasonable time. History: Enacted March 21, 1872. §3028. PREFERENCE OF BOTTOMRY LIEN OVER OTHER LIENS. A bottomry lien, if created out of a real or apparent necessity, in good faith, is preferred to every oth- er lien or claim upon the same thing, excepting only a lien for seamen's wages, a subsequent lien of materialmen for supplies or repairs indispensable to the safety of the ship, and a subsequent lien for salvage. History: Enacted March 21, 1872. §3029. PRIORITY OF BOTTOMRY LIEN. Of two or more bottomry liens on the same subject, the latter in date has preference, if created out of necessity. History: Enacted March 21, 1872. ^ 941 §§3036-3038 civil codk f Div.HI.Pt.IV. CHAPTER V. RESPONDENTIA. § 3036. Respondentia, what. § 30S7. Respondentia by owner. § 303S. Respondentia by master. § 3039. Rate of interest. § 3040. Obligations of sliip-owner. §3036. RESPONDENTIA, WHAT. Respondentia is a contract by which a cargo, or some part thereof, is hypothe- cated as sectirity for a loan, the repayment of which is de- pendent on maritime risks. HistKi-y: Enacted March 21, 1S72. §3037. RESPONDENTIA BY OWNER. The owner of cargo may hypothecate it upon respondentia, at any time and place, and for any lawful purpose. History: Enacted March 21, 1872. §3038. RESPONDENTIA BY MASTER. The master of a ship may hypothecate its cargo upon respondentia only in a case in which he would be authorized to hypothecate the ship and freightage, but is unable to borrow sufificient money thereon for repairs or supplies which are necessary for the successful accomplishment of the voyage; and he cannot do so, even in such case, if there is no reasonable prospect of benefiting the cargo thereby. Hi-story: Enacted March 21, 1872. 942 Tit.XIV,ch.V.l RESPONDENTIA. §§3039,3040 § 3039. RATE OF INTEREST. The provisions of sec- tions three thousand and twenty-two to three thousand and twentj'-nine apply equally to loans on respondentia. Hi.stcry: Enacted March 21, 1872. § 3040. OBLIGATIONS OF SHIP-OWNER. The own- er of a ship is bound to repay to the owner of its cargo all which the latter is compelled to pay, under a contract of respondentia made by the master, in order to discharge its lien. ' Histoi-y: Enacted March 21, 1872. 943 §§3046-3047 civil code [Div.IIl,Pt.IV. CHAPTER VI. OTHER LIENS. § ;;(i46. Lien of seller of real property. § 3047. When transfer of contract Vv'aivps lien. § SO'J.S. PJxtent of seller's lien. § .3049. Lien of seller of personal property. § ."050. Purchaser's lien on real property. § 3051. Lien upon personal property for fc-ervices performed. § 3051!. Liens on personal property. [Lien-holder may sell]. § 3053. Lien of factor. § 3054. Banker's lien. § 3055. Shipmaster's lien. § 3056. Seamen's lien. § 3057. OfTicer's lien. § 3058. Judgment lien. § 3059. Mechanic's lien. § 3060. Lien on ships. § 3061. Lien of workmen on threshing- machines, etc. § 3062. Lien of person in charge of stallion, etc. § 3063. Claimant of lien must file verified claim. Such claim a notice to subsequent purchasers. § 3064. Action to enforce lien. § 3065. Logger's lien. Upon what lien subsists. Lien ceases, when. §3046. LIEN OF SELLER OF REAL PROPERTY. One who sells real property has a vendor's lien thereon, in- dependent of possession, for so much of the price as re- mains unpaid and unsecured otherwise than by the personal obligation of the buyer. Ilirtorj : Enacted March 21. 1S72. §3047. WHEN TRANSFER OF CONTRACT WAIVES LIEN. 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 944 . Tit.XIV.ch.VI.] SELLER'S LIEN. §§3048-3051 liis lien to the extent of the sum payable under tlie cf)ntract, l)ut a transfer of such contract in trust to pay clel)ts, and return the surplus, is not a waiver of the lien. Hislorj-: Enacted March 21, 1S72. § 3048. EXTENT OF SELLER'S LIEN. The liens de- fined in sections three thousand and forty-six and three thousand and fifty are valid against every one claiming under the debtor, except a purchaser or encumbrancer in good faith and for value. Hi-story: Enacted March 21, 1ST2. § 3049. LIEN OF SELLER OF PERSONAL PROP- ERTY. One who sells personal property has a special lien thereon, dependent on possession, for its price, if it is in his possession when the price becomes payable, and may enforce his lien in like manner as if the property was pledged to him for the price. Histoi-j-: Enacted March 21, 1872. §3050. PURCHASER'S LIEN ON REAL PROPERTY. One who pays to the owner any part of the price of real property, under an agreement for the sale thereof, has a spe- cial lien upon the property, independent of possession, for such part of the amount paid as he may be entitled to re- cover back, in case of a failure of consideration. Historj-: Enacted March 21, 1872. §3051. LIEN UPON PERSONAL PROPERTY FOR SERVICES PERFORMED THEREON. Every person who, while lawfully in possession of an article of personal ])roperty renders any service to the owner thereof, by labor or skill, employed for the protection, improvement, safe keeping, or carriage thereof, has a special lien thereon, de- 945 §3052 CIVIL CODE [Div.III.Pl.IV. pendent on possession, for the compensation, if any, which is due to him from the owner for such service; a person who makes, alters, or repairs any article of personal property, at the request of the owner, or legal possessor of the prop- erty, has a lien on the same for his reasonable charges for the balance due for such work done and materials furnished, any may retain possession of the same until the charges are paid; and livery or boarding or feed stable proprietors, and persons pasturing horses or stock, have a lien, dependent on possession, for their compensation in caring for, boarding, feeding, or pasturing such horses or stock; and laundry pro- prietors and persons conducting a laundry business, have a general lien, dependent on possession, upon all personal prop- erty in their hands belonging to a customer, for the balance due them from such customer for laundry work; and veter- inary proprietors and veterinary surgeons shall have a lien, dependent on possession, for their compensation in caring for, boarding, feeding, and medical treatment of animals; and keepers of garages for automobiles shall have a lien, dependent on possession, for their compensation in caring for and safe keeping [of] such automobiles. History: Enacted March 21, 1872; amended March 29, 1878. Code Amdts. 1877-8, p. 89; March 1, 1907, Stats, and Amdts 1907, p. 85, Kerr's Stats, and Amdts. 1906-7, p. 428; April 12, 1911, p. 8S7. §3052. LIENS ON PERSONAL PROPERTY. [LIEN- HOLDER MAY SELL.] If the person entitled to the lien provided for in section three throusand and fiftj^-one of this code be not paid the amount due and for which said lien is given, within twentj'^ days after the same shall have become due, then such lien-holder may proceed to sell said prop- erty, or so much thereof as may be necessary to satisfy said lien and costs of sale, at public ai:ction. [Notice of sale.] And by giving, at least ten days' previ- ous notice of such sale by advertising in some newspaper 946 Tit.XIV.ch.VI.l FACTOR'S, ETC., LIEN. §§3053-3056 ])ublished in the county in which such property is situated; or, if there be no newspaper published in such county, then by posting notices of the sale in three of the most public places in the town or place where such property is to be sold, for ten days previous to the date of sale. The proceeds of the sale must be applied to the discharge of the lien and the cost of keeping and selling the property; the remainder*, if any, must be paid over to the owner thereof. History: Enacted March 21, 1S72; amended by Code Commis- .sion. Act March 16, 1901, Stats, and Amdts. 1900-1. p. 418, held unconstitutional, see history, § 593 ante; amended March 1, 1907, Stats, and Amdts. 1907, p. 86, Kerr's Stats, and Amdts. 1906-7, p. 428. § 3053. LIEN OF FACTOR. A factor has a general lien, dependent on possession, for all that is due to him as such, upon all articles of commercial value that are intrusted to him by the same principal. History: Enacted Marcli 21, 1872. § 3054. BANKER'S LIEN. A banker has a general lien, dependent on possession, upon all property in his hands be- longing to a customer, for the balance due to him from such customer in the course of the business. History: Enacted March 21, 1872. §3055. SHIPMASTER'S LIEN. The master of a ship has a general lien, independent of possession, upon the ship and freightage, for advances necessarily made or liabilities necessarily incurred by him for the benefit of the ship, but has no lien for his wages. History: Enacted March 21, 1872. §3056. SEAMEN'S LIEN. The mate and seamen of a ship have a general lien, independent of possession, upon 947 §S 3057-3061 f'TViT. code [Div.TTT.Pt.lV. the ship and freightage, for their wages, which is superior to every other lien. History: Enacted March 21, 1872. § 3057. OFFICER'S LIEN. An officer who levies an at- tachment or execution upon personal property acquires a special lien, dependent on possession, upon such property, which authorizes him to hold it until the process is dis- charged or satisfied, or a judicial sale of the property is had. History: Enacted March 21, 1S72. §3058. JUDGMENT LIEN. The lien of a judgment is regulated by the code of civil procedure. History: Enacted March 21, 1S72. §3059. MECHANIC'S LIEN. The liens of mechanics, for materials and services upon real property, are regulated by the code of civil procedure. History: Enacted March 21, 1872; repealed by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 418. held unconstitutional, see liistury, § 4 ante. §3060. LIEN ON SHIPS. Debts amounting to at least fifty dollars, contracted for the benefit of ships, are liens in the cases provided by the code of civil procedure. History: Enacted March 21, 1872; repealed by Code Commis- sion, Act March 16. 1901, i^tats. and Amdts. 1900-1, p. 418, held unconstitutional, see history, § 4 ante. §3061. LIEN OF WORKMEN ON THRESHING MA- CHINES, ETC. Every person performing work or labor in, with, about, or upon any barley crusher, threshing machine or engine, horsepower, wagon, or other appliance thereof, while engaged in crushing or threshing, has a lien thereon 948 Tii.XTV.ch.VT.j i^TEN ON STALOON. §§3062.3063 to the extent of the value of his services. Such lien extends for ten days after any such person ceases such work or labor; provided, within that time, an action is brought to recover the amount of the claim. If judgment is given in favor of the plaintiff in any such action, and it is further found that he is entitled to a lien under the provisions of this section, prop- erty subject thereto, or so much thereof as may be necessary, may be sold to satisfy such judgment; but if several judg- ments have been recovered against the same property for the enforcement of such liens, the proceeds of the sale must be divided pro rata among the judgment creditors. Hisiory: Enacted bj' Code Commis.sion^ Act March 16, 1901, Slats, and Amdts. 1900-1, p. 418, held unconstitutional, see his- tory, § 4 ante; re-enacted March 21, 190.5, Stats, and vArndts. 1905, p. 618; founded upon Act March 12, 1885. Stats, and Amdts. 1885, p. 109. §3062. LIEN OF PERSON IN CHARGE OF STAL- LION, ETC. Every owner or person having in tharge any stallion, jack, or bull, used for propagating purposes, has a lien for the agreed price of its service upon any mare or cow and upon the offspring of such service, unless some wilfull}'^ false representation concerning the breeding or pedigree of such stallion, jack, or bull has been made or published by the owner or person in charge thereof, or by some other person, at the request or instigation of such owner or person in cJiarge. History: Enacted by Code Commission, Act Marcli 16, 1901, Stats, and Amdts. 1900-1, p. 419; held unconstitutional, see his- tory, §4 ante; re-enacted March 21, 1905, p. 617; a codification of § 1, Act March 11, 1891, Stats, and Amdts. 1891, p. 90. § 3063. CLAIMANT OF LIEN MUST FILE VERIFIED CLAIM. SUCH CLAIM A NOTICE TO SUBSEQUENT PURCHASERS. Every claimant of a lien provided for in the preceding section must, within ninety days after the serv- ice on account of which the lien is claimed, file in the office 949 §55 3064,3065 civil code [Div.III,Pt.IV. of the county recorder of the county where the mare or cow subject thereto is kept, a verified claim containing a partic- ular description of the mare or cow, the date and place of service, the name of the owner or reputed owner of such mare or cow, a description by name, or otherwise, of the stallion, jack, or bull performing the service, the name of the owner or person in charge thereof, and the amount of the lien claimed. Such claim, so filed, is notice to subsequent purchasers and encumbrancers of such mare or cow and of the offspring of such service for one year after such filing. Hi.story: Enacted by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 419, held unconstitutional, see his- tory, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 618; a codification of § 2, Act March 11, 1891, Stats, and Amdts. 1891, p. 91. §3064. ACTION TO ENFORCE LIEN. An action to enforce any lien created under section thirty ]iundred and sixty-two may be brought in any county wherein any of the propert}' subject thereto may be found, and the plaintiff is entitled to the remedies provided in sections thirty hundred and forty-four and thirty hundred and sixty-five upon com- plying with such sections, both of which are hereby made ap- plicable to the proceedings in such action. History: Enacted by Code Commission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 419, lield unconstitutional, see his- tory, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 619; founded upon §§3, 4, Act March 11, 1891, Stats, and Amdts. 1891, p. 91. §3065. LOGGER'S LIEN. UPON WHAT LIEN SUB- SISTS. LIEN CEASES, WHEN. A person who labors at cutting, hauling, rafting, or drawing logs, bolts, or other tim- ber, has a lien thereon for the amount due for his personal services, which takes precedence of all other claims, to con- tinue for thirty days after the logs, bolts, or other timber arrive at the place of destination for sale or manufacture, 950 Tit 5^IV,cb.VI.l LOGGER'S LIEN. §3065 while such logs, bolts, or other timber are in the county in which such labor was performed. The lien hereby created ceases and determines unless the claimant thereof, within twenty days from the time such labor is completed, brings suit to foreclose the same. The plaintiff in any such suit, at the time of issuing the summons or at any time afterwards, may have the logs, bolts, or other timber upon which Such lien subsists attached, as provided in this code, upon deliv- ering to the clerk an affidavit by or on behalf of the plain- tiff, showing that defendant is indebted to the plaintifif upon a demand for labor performed, either in the cutting, hauling, rafting, or drawing such logs, bolts, or other timber, and that the sum for which the attachment is asked is an actual bona fide existing debt, due and owing from the defendant to the plaintiff, and that the attachment is not sought, and the action is not brought, to hinder, delay, or defraud any cred- itor or creditors of the defendant. History: Enacted by Code Commission, Act March 16, 1901. Stats, and Amdts. 1900-1, p. 419, held unconstitutional, see his- tory, § 4 ante; re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 619; founded upon Act March 30^ 1878, Stats. 1877-8, p. 747, as amended April 12, 1880, Stats. 1880, p. 38. and March 8, 1887, Stats, and Amdts. 1887, p. 63. 951 § 3076-3078 CIVIL CODE [Div.IIT,rt.lV. § 3076 § 3077 § 3078 § 3079 § 3080 CHAPTER VII. STOPPAGE IN TRANSIT. Wlien consignor may stop goods. What is insolvency of consignee. Transit, wlien ended. Stoppage, how effected. Effect of stoppage. §3076. WHEN CONSIGNOR MAY STOP GOODS. A seller or consignor of property, whose claim for its price or proceeds has not been extinguished, may, upon the insolv- ency of the buyer or consignee becoming known to him after parting with the property, stop it while on its transit to the buyer or consignee, and resume possession thereof. Historj : Enacted March 21, 1872. §3077. WHAT IS INSOLVENCY OF CONSIGNEE. A person is insolvent, within the meaning 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 unwillingness to do so. Hi.story: Enacted March 21, 1872. §3078. TRANSIT, WHEN ENDED. 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 employed merely to forward the property to the consignee. History: Enacted March 21, 1872. 952 Tit.XlV.ch.VII-l STOPPAGE IN TRANSIT. §§3079.3080 §3079. STOPPAGE, HOW EFFECTED. Stoppage in transit can be effected onlj^ by notice to the carrier or depos- itary of the property, or by taking actual possession thereof. History: Enacted Marcli 21, 1S72. § 3080. EFFECT OF STOPPAGE. Stoppage in transit does not, of itself, rescind a sale, but is a means of enforcing the lien of the seller. History: Enacted March 21, 1&T2. 953 §30 case of mistake, a mistake within the scope of such provision may be compensated for, and the contract specifically enforced in other respects, if proper to be so enforced. History: Enacted March 21, 1872. §3392. WHAT PARTIES CANNOT HAVE SPECIFIC PERFORMANCE IN THEIR FAVOR. Specific perform- ance cannot be enforced in favor of a party who has not fully and fairly performed all the conditions precedent on his part to the obligation of the other party, except where his failure to perform is only partial, and either entirely im- material, or capable of being fully compensated, in which case specific performance may be compelled, upon full com- pensation being made for the default. History: Enacted March 21, 1872. §3393. SPECIFIC PERFORMANCE NOT REQUIRED WHEN OPPRESSIVE [repealed]. History: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. ]87.'?-4, p. 267. §3394. AGREEMENT TO SELL PROPERTY BY ONE WHO HAS NO TITLE. An agreement for the sale of 1021 §3395 CIVIL CODE. [Div.IV.Pt.I. property cannot be specifically enforced in favor of a seller who cannot give to the buyer a title free from reasonable doubt. lli.>,tory: Enacted March 21, 1872. § 3395. RELIEF AGAINST PARTIES CLAIMING UN- DER PERSON BOUND TO PERFORM. Whenever an obligation in respect to real property would be specifically enforced against a particular person, it may be in like man- ner enforced against any other person claiming under him by a title created subsequently to the obligation, except a purchaser or encumbrancer in good faith and for value, and except, also, that any such person may exonerate himself by conveying all his estate to the person entitled to enforce the obligation. Histor.v: Enacted March 21, 1872. 1022 Tit.III,ch.TI.art.IV.] REVISION. §§3399-3401 ARTICLE IV. REVISION OF CONTRACTS. .3399. When contract may be revised. 3400. Presumption as to intent of parties. 3401. Principles of revision. 34 02. Enforcement of revised contract. §3399. WHEN CONTRACT MAY BE REVISED. When, tlirough fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the in- tention of the parties, it inay be revised on the application of a party aggrieved, so as to express that intention, so far as it can be done without prejudice to rights acqttired by third persons, in good faith and for value. Hi.story: Enacted March 21, 1872. §3400. PRESUMPTION AS TO INTENT OF PAR- TIES. For the purpose of revising a contract, it must be presumed that all the parties thereto intended to make an equitable and conscientious agreement. lIi.stor> : Enacted xVIarch 21, 1872. §3401. PRINCIPLES OF REVISION. In revising a written instrument, the court may inquire what the instru- ment was intended to mean, and what were intended to be its legal consequences, and is not confined to the inquiry what the language of the instrument was intended to be. History: Enacted March 21, 1872. ^ 1023 §3402 CIVIL CODE. [Div.TV.I't.I. §3402. ENFORCEMENT OF REVISED CONTRACT. A contract may be first revised and then specifically en- forced. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 422, held unconstitutional, see history, § 4 ante. 1024 Tit.IIT.ch.lI.art.V.] RECISSION. §§3406-3408 ARTICLE V. RESCISSION OF CONTRACTS. § 3406. When rescission may be adjudged. § 3407. Rescission for mistake. § 3408. Court may require party rescinding to do equity. §3406. WHEN RESCISSION MAY BE ADJUDGED. The rescission of a written contract may be adjudged, on the application of a party aggrieved: 1. In any of the cases mentioned in section sixteen hun- dred and eighty-nine; or, 2. Where the contract is unlawful, for causes not appar- ent upon its face, and the parties were not equally in fault; or, 3. When the public interest will be prejudiced by permit- ting it to stand. History: Enacted March 21, 1872; amended by Code Commis- sion, Act March 16, 1901, Stats, and Amdts. 1900-1. p. 422, held unconstitutional, see history, § 4 ante. §3407. RESCISSION FOR MISTAKE. Rescission can- not be adjudged for mere mistake, unless the party against whom it is adjudged can be restored to substantially the same position as if the contract had not been made. History: Enacted Marcli 21. 1^72. §3408. COURT MAY REQUIRE PARTY RESCIND- ING TO DO EQUITY. On adjudging the rescission of a contract, the court may require the party to whom such re- lief is granted to make any compensation to the other which justice may require. History: Enacted March 21, 1S72. 1025 §§3412-3415 rn-u. code. [Div.IV.Pt.I. ARTICLE VI. CANCELATION OP INSTRUMENTS. § 3412. When cancelation may be ordered. § 3413. Instrument obviously void. § 3414. Cancelation in part. § 3415. Re-issuance, etc., of lost private documents or in- struments. §3412. WHEN CANCELATION MAY BE ORDEREID. A written instrument, in respect to which there is a reason- able apprehension that if left outstanding it may cause seri- ous injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled. History: Enacted March 21, 1S72; amended by Code Commis- sion, Act March 6, 1901, Stats, and Amdts. 1900-1, p. 422, held unconstitutional, see history, § 4 ante. §3413. INSTRUMENT OBVIOUSLY VOID. An in- strument, the invalidity of which is apparent upon its face, or upon the face of another instrument which is necessary to the use of the former in evidence, is not to be deemed ca- pable of causing injury, within the provisions of the last section. History: Enacted March 21, 1S72. §3414. CANCELATION IN PART. Where an instru- ment is evidence of different rights or obligations, it may be canceled in part, and allowed to stand for the residue. Histiirj : Enacted March 2J, 1872. §3415. RE-ISSUANCE, ETC., OF LOST PRIVATE DOCUMENTS OR INSTRUMENTS. An action may be 1026 Tit.III,ch.n,art.VI.] LOST DOCUMEXTS, ETC. §3415 maintained by any person interested in any private document or instrument in writing, which has been lost, destroyed or damaged by conflagration or other public calamity, to prove, establish, compel the re-issuance, re-execution, and re-ac- knowledgment of such document or instrument. If such document or instrument be a negotiable instrument, the court must compel the person in whose favor it is drawn to give a l)ond executed by himself and two sufficient sureties to indemnify the person re-issuing, re-executing,' or re-ac- knowledging the same against any lawful claim thereon. Hislorj : Enacted June IS. 1906, Stats, and Amdts. extraor- dinar>- session 1906, p. 86, Kerr's Stats, and Amdts. 1906-1, p. 4 -'9. Ill elVect immediately. 1027 §§3420-3423 CIVIL code. [Div.IV,Pt.I. CHAPTER III. PRltVENTlVE RELIEF. § 3420. Preventive relief, how gi anted. § 3421. Provisional injunctions. § 3422. Injunction, when allowed. § 3423. Injunction, when not allowed. §3420. PREVENTIVE RELIEF, HOW GRANTED. Preventive relief is granted by injunction, provisional or final. History: Enacted March 21. 1S72. §342L PROVISIONAL INJUNCTIONS. Provisional injunctions are regulated by the code of civil procedure. Historj-: Enacted March 21, 1872. §3422. INJUNCTION, WHEN ALLOWED. Except where otherwise provided by this title, a final injunction may be granted to prevent the breach of an obligation existing in favor of the applicant: 1. Where pectiniarj' compensation would not aiTord ade- quate relief; 2. Where it would be extremely difticult to ascertain the amount of compensation which would afiford adequate relief; 3. \Vhere the restraint is necessary to prevent a niulti- plicit}' of judicial proceedings; or, 4. Where the obligation arises from a trust. History: Enacted March 21, 1872. §3423. INJUNCTION, WHEN NOT ALLOWED. An injtmction cannot be granted: 1. To stay a judicial proceeding pending at the commence- 1028 Tit.lll.ch.lll.l INJUNCTION WHKN. §3423 merit of the action in which the mjunction is demanded, un- less sucTi restraint is necessary to prevent a multipHcitv of such proceedings. 2. To stay proceedings in a court of the United States. 3. To stay proceedings in another state upon a judgment of a court of that state. 4. To prevent the execution of a pubHc statute, by officers of the law, for the public benefit. 5. To prevent the breach of a contract, the performance of which would not be specifically enforced. 6. To prevent the exercise of a public or private office, in a lawful manner, by the person in possession. 7. To prevent a legislative act by a municipal corporation. History: Enacted March 21, 1S72; amended March 30, 1874, Code Amdts. 1873-4, p. 267. 1029 §S 3429-3431 civil code. [Div.IV.Pt.II. PART II. SPECIAL RELATIONS OF DEBTOR 0\ER ■ CREDITOR. Ttile I. General Principles, §§ 3429-3433. II. Fraudulent Instrument and Transfers, §§3439-3442. III. Assignments for the Benefit of Creditors, §§ 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. WHO IS A DEBTOR. A debtor, within the meaning of this title, is one who, by reason of an existing obligation, is or may become liable to pay money to an- other, whether such liability is certain or contingent. History: Enacted March 21, 1872. §3430. WHO IS A CREDITOR. A creditor, within the meaning of this title, is one in whose favor an obligation exists, by reason of wh-ich he is, or may become, entitled to the payment of money. History: Enacted March 21, 1872. §343L CONTRACTS OF DEBTOR ARE VALID. In the absence of fraud, every contract of a debtor is valid 1030 Tit. I.] PAYMENT— RELATIVE RIGHTS. §§3432,3433 against all his creditors, existing or subsequent, who have not acquired a lien on the property affected by such contract. History: Enacted March 21, 1872. § 3432. PAYMENTS IN PREFERENCE. A debtor may pay one creditor in preference to another, or may give to one creditor security for the payment of his demand in pref- erence to another. History: Enacted March 21, 1872. § 3433. RELATIVE RIGHTS OF DIFFERENT CRED- ITORS. \\ here 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 re- sort to some, but not all of them, the latter may require the former to seek 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 complete satisfaction, and without doing injustice to third persons. History: Enacted Marcli 21, 1S72. 1031 §§3439,3440 civil code. [Div.TV.Pt.II. TITLE II. FRAUDULENT INSTRUMENTS AND TRANSFERS. § 3 439. Transfers, etc., with intent to defraud creditors. § 3440. Certain transfers presumed fraudulent. § 3441. Creditor's riglit must be judicially ascertained. §"3442. Question of fraud, how determined. § 3439. TRANSFERS, ETC., WITH INTENT TO DE- FRAUD CREDITORS. Every transfer of property ur charge thereon made, every obligation incurred, and every judicial proceeding taken, with intent to delay or defraud any creditor or other person of his demands, is void against all creditors of the debtor, and their successors in interest, and against any person upon whom the estate of the debtor devolves in trust for the lienefit of others than the debtor. History: Enacted March 21, 1872. §3440. CERTAIN TRANSFERS PRESUMED FRAUD- ULENT. 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 al- lowed by law, and a contract of bottomry or respondentia, is conclusively presumed, if made by a person having at the time the possession or control of the property, and not ac- companied 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 devolves in trust for the benefit of others than himself, and against purchasers or encumbrancers in good faith subsequent to the transfer; [Exception.] Provided, however, that the provisions of 1032 Tit.Il.J PRESUMPTION OF FRAUD. §3440 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 certified and verified in the same form as provided for chat- tel mortgages and which shall l:»e recorded in the book of miscellaneous records in the office of the county recorder of the county in which the same are situated; [Public recordation required.] Provided, also, tliat the sale, transfer, or assignment of a stock in trade (or of such a quantity of a stock in trade as to be substantially a whole) in bulk, or in any manner otherwise than in the ordinary course of trade and in the regular and usual practice and method of business of the vendor, transferrer, or assignor, will be conclusively presumed to be fraudulent and void as against the existing creditors of the vendor, transferrer, or assignor, unless at least five days before the consummation of such sale, transfer, or assignment the vendor, transferrer, or assignor, or the intended vendee, transferee, or assignee shall record in the office of the county recorder in the county or counties in which the said stock in trade is situated, a notice of said intended sale, transfer, or assignment, stating the name and address of the intended vendor, transferrer, or assignor, and the name and address of the intended ven- dee, transferee, or a«signee, and a general statement of the character of the property or merchandise intended to be sold, assigned, or transferred, and the date when, and the place where, the purchase price, if any there be, is to be paid ; [Sales at public auction.] Provided, nevertlieless, that if such intended sale is to be at public auction the notice above required to be recorded shall state that fact, the time, terms, and place of said sale, the names and addresses of tlie ven- dor and auctioneer, and a general statement of the character 1033 SS 3^141,3442 CIVIL CODE. [Div.IV.Pt.Il. of the property or merchandise intended to be sold; but such sale shall in no event occur within five days of the date of recordation of said notice; [Transfers under order of court.] Provided further, that the provisions of this section shall not apply or extend to any sale, transfer or assignment made under the direction or order of a court of competent jurisdiction, or by any execu- tor, administrator, guardian, receiver, or other officer or per- son acting in the regular and proper discharge of official duty, or in the discharge of any trust imposed upon him by law, nor to any transfer or assignment made for the bene- fit of creditors generally, "'nor to any sale, transfer or assign- ment of any property exempt from execution. History: Enacted March 21, 1872; amended' March 12, 1895, Stats, and Amdts. 1895, p. 47; March 10, 1903, Stats, and Amdts. 1903. pp. 111-112. §34^41. CREDITOR'S RIGHT MUST BE JUDICIALLY ASCERTAINED. A creditor can avoid the act or obliga- ♦^^ion of his debtor for fraud only where the fraud obstructs the enforcement, by legal process, of his right to take the property affected by the transfer or obligation. History: Enacted March 21, 1872. S3442. QUESTION OF FRAUD, HOW DETER- MINED. In all cases arising under section twelve hundred and twenty-seven, or under the provisions of this title, ex- cept as otherwise provided in section thirty-four hundred and forty, the question of fraudulent intent is one of fact and not of law; nor can any transfer or charge be adjudged fraudulent solely on the ground that it was not made for a valuable consideration; provided, however, that any transfer or encumbrance of property made or given voluntarily, or - 1034 Jit J J] FRAUD — DETERMINING. §3442 without a valuable consideration, by a party while insolvent or in contemplation of insolvency, shall be fraudulent, ana void as to existing creditors. History: Enacted March 21, 1872; amended March 26, 1895, Stats, and Amdts. 1895, pp. 154-5; amended by Code Commis- sion, Act March 6, 1901, Stats, and Amdts. 1900-1. p. 422, held uncon.stitutional. see lii.story, § 4 ante. 1035 §3449 CIVIL CODE. [Div.TV.Pt.IT. 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 maj' be secured. .^ § 3453. Wliat preferences may be given [repealed]. § 3454. Preference must be absolute [repealed]. § 3455. Certain rights not affected by preferences in assign- ment [repealed]. §J!456. 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. More than one assignor recording assignment. § 3465. Assignment, when void. § 3466. Assignment of real property. § 3467. Bond of assignees. § 3468. Conditions of disposal and conversion. § 3469. Accounting of assignee. § 3470. Property exempt. § 34 71. Compensation. § 3472. Assignees protected for acts done in good faith. § 3473. Assent of creditor necessary to modification of assign- ment. §3449. WHEN DEBTOR MAY EXECUTE ASSIGN- MENT. An insolvent debtor may in good faith execute an assignment of property in trust for the satisfaction of his creditors, in conformity to the provisions of this chapter; subject, however, to the provisions of this code relative to trusts and fraudulent transfers, and to the restrictions im- 1036 Tit.TTI.] ASSIGNMENT— EXECUTED WHEN. §3449 posed by law upon assignments by special partnerships, by corporations, or by other specific classes or persons. [Form of assignment.] Every such assignment shall con- tain a list of the names of the creditors of the assignor, and their places of residence and amounts of their respective de- mands, and the amounts and nature of any security therefor, and shall, subject to the other provisions of this section, be made to the sheriff of the county, or city and county, where- in the assignor resides, if the assignor resides within this state; or in case the assignor resides out of this state, then to the sheriff of the covmty, or city and county, wherein the property assigned, or some of it, is situated; but when the assignor resides out of the state, an assignment made as herein provided may, by its terms, transfer any property of the assignor in this state. [Sheriff to take possession — Notice to creditors.] The sheriff shall forthwith take possession of all the property so assigned to him, and keep the same till delivered by him, as hereinafter provided. When the assignment has been made, as herein provided, the sheriff shall imniediately, by mail, notify the creditors named in the assignment, at their places of residence as given therein, to meet at his office on a day and hour to be appointed by him, of not less than eight nor more than ten days from the date of the delivery of the assignment to him, for the purpose of electing one or more assignees, as they may determine, in the place and stead of the said sheriff in the premises, and shall also publish a notice of such meeting, and the purpose thereof, at least once before such meeting, in some newspaper published in his county, or city and county. [Notice to contain demand on creditors.] The notice so to be mailed shall also contain a statement of the amount of the demand of the creditor, and the amount and nature of any security therefor, as set forth in the assignment; and if any creditor shall not find the amount of his claim to be correctly so stated, he may file with said sheriff, at or before 1037 §3449 CIVIL CODE. fDiv.IV.Pt.II. such meeting, a statement, under oath, of his demand, and such statement shall, for the purpose of voting as hereinafter provided, be accepted by said sherifif as correct; and when no such statement is filed, the statement of amount as set forth in the assignment shall be 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 se- curing the payment of a debt owing to him from the debtor, shall be allowed to vote any part of his claim at such meet- ing of creditors, unless he shall have first conveyed, released, or delivered up his said security to said sherifif, for the bene- fit of all creditors of said assignor. At such meeting the .sherifif 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 take acknowledgments, and filed with the sherifif. At such a meeting, or any adjournment thereof, the creditors may elect one or more assignees from their own number, in the place and stead of the sherifif, and the person or persons so elected shall afterwards be the assignee or assignees under the provisions of this title; and the sherifif, by transfer in writing, acknowledged as required by section 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 sherifif of notices of such meeting, and the holding thereof, and of the due election of such assignee or assignees, shall be prima facie proof of the facts recited. [Sheriff's fees and expenses.] The sherifif shall, before the delivery of such assignment, be paid the expenses in- curred by him, and fees in such amount as would by law be collectable if the property assigned had been levied upon 1038 Tit. III.] INSOLVENCY. WHAT IS. §§3450,3451 and safely kept under attachment. Thereupon, and after the record of such last-named assignment, as in this title pro- vided, such elected assignee or assignees shall take, and hold, and dispose of all such property and its proceeds, upon the trusts and conditions and for the purposes in this title pro- vided. History: Enacted March 21, 1S72; amended March 7, 1,SS9, Stats, and Amdts. 18S9, pp. 80-2; March 26, 189.5, Stats, and Amdts. 1895, pp. 82-4. §3450. INSOLVENCY, WHAT. A debtor is insolvent, within the meaning of this title, when he is unable to pay his debts from his own means, as they become due. Hi.st<(ry: Enacted March 21, 1872. §3451. CERTAIN TRANSFERS NOT AFFECTED. The provisions of this title do not prevent a person residing in another state or country from making there, in good faith, and without intent to evade the laws of this state, a transfer of property situated within it; but such person cannot make a general assignment of property situated in this state for the satisfaction of all his creditors, except as in this title pro- vided; nor do the provisions of this title affect the power of a person, although insolvent, and whether residing within or without this state, to transfer property in this state, in good faith to a particular creditor, or creditors, or to some other person or persons in trust for such particular creditor or creditors for the purpose of paying or securing the whole or part of a debt owing to such creditor or creditors, whether in his or their own right or otherwise. History: Enacted March 21, 1872; amended March 8. 1SS9, Stats, and Amdts. 1889, p. 82; amended by Code Commission. Act March 16, 1901, Stats, and Amdts. 1900-1. p. 422, held un- constitutional, see history, §4 ante; amendment re-enacted March 21, 1905, Stats, and Amdts. 1905, p. 622. 1039 §§3452-3457 civil code. [Div.IV,Pt.II. §3452. WHAT DEBTS MAY BE SECURED. An as- signment for the benefit of creditors may provide for any subsisting liability of the assignor which he might lawfully pay, whether absolute or contingent. History: Enacted March 21, 1S72. §3453. WHAT PREFERENCES MAY BE GIVEN [repealed] . History: Enacted March 21. 1872; repealed March 30, 1S74, Code Amdts. 1873-4, p. 267. §3454. PREFERENCE MUST BE ABSOLUTE [re- pealed]. History: Enacted March 21, 1872; repealed March 3(', 1874, Code Amdts. 1873-4, p. 267. §3455. CERTAIN RIGHTS NOT AFFECTED BY PREFERENCES IN ASSIGNMENT [repealed]. History: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1S73-4, p. 267. §3456. JOINT AND SEPARATE DEBTS [repealed |. Histiry: Enacted March 21, 1872; repealed March 30, 1874, Code Amdts. 1873-4, p. 267. §3457. ASSIGNMENT, WHEN VOID. An assignment for the benefit of creditors is void against any creditor of the assignor not assenting thereto, in the following cases: 1. If it give a preference of one debt or class of debts over another. 2. If it tend to coerce any creditor to release or com- promise his demand. 3. If it provide for the payment of an}- claim known to the assignor to be false or fraudulent; or for the payment of 1040 Tit.Ill.l INSTRUMENT OF ASSIGNMENT. §§3458,3459 more upon any claim than is known to he justl}" clue from the assignor. 4. If it reserve an}- interest in the assigned property, or in any part theerof, 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 exer- cised, 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. Historj-: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, pp. 267-8. §3458. THE INSTRUMENT OF ASSIGNMENT. An assignment for the benefit of creditors must be in writing, subscribed by the assignor, or by his agent thereto author- ized in writing, and the transfer bj' the sheriff must also be in writing, subscribed by the sheriff in his official capacity. Both such assignment and such transfer must be acknowl- edged, or proved and certified, in the mode prescribed by the chapter on recording transfers of real propertj^ and be recorded as required by sections thirty-four hundred and sixty-three and thirty-four hundred and sixty-four; but re- cording in one county constitutes a compliance with the fol- lowing section. History: Enacted March 21, 1872; amended March 7, 1889, Stats, and Amdts. 1889, p. 82. §3459. COMPLIANCE WITH PROVISIONS OF LAST SECTION NECESSARY TO VALIDITY OF ASSIGN- MENT. L'nless the provisions of the last section are com- plied with, an assignment for the benefit of creditprs is void against every creditor of the assignor not assenting thereto. History: Enacted March 21, 1872. 1041 §S 3460-3462 CIVIL CODE. [Div.IV.Pt.II. §3460. ASSIGNEE TAKES, SUBJECT TO RIGHTS OF THIRD PARTIES. An assignee for the benefit of cred- itors is not to be regarded as a purchaser for value, and has no greater rights than his assignor had, in respect to things in action transferred by the assignment. History: Enacted March 2], 1872. § 3461. INVENTORY REQUIRED. Within twenty days after an assignment is made for the benefit of creditors, the assignor must make and file, in the manner prescribed by section thirty-four hundred and sixty-three, a full and true inventory, showing: 1. All the creditors of the assignor; 2. The place of .residence of each creditor, if known to the assignor; or if not known, that fact must be stated; 3. The sum owing to each creditor and the nature of each debt or liability, whether arising on written security, account, or otherwise; 4. The true consideration of the liability in each case, and the place where it arose; 5. Every existing judgment, mortgage, or other security for the payment of any debt or liability of the assignor; 6. All property of the assignor at the date of the assign- ment, which is exempt bj^ law from execution; and, 7. All of the assignor's property at the date of the assign- ment, both real and personal, of every kind, not so exempt, and the encumbrances existing thereon, and all vouchers and securities relating thereto, and the value of such property according to the best knowledge of the assignor. Hi.story: Enacted March 21, 1ST2. §3462. VERIFICATION OF INVENTORY. An affi- davit must be made by everj^ assignor executing an assign- ment for the benefit of creditors, to be annexed to and filed with the inventory mentioned in the last section, to the ef- 1042 Tit. III.] INVENTORY— RECORDTNG. §3463 feet that the same is in all respects just and true according to the best of such assignor's knowledge and belief. If the assignor neglects or refuses to make and file such inventory and afifidavit within said twenty days, the assignment shall not, for that reason, be afifected in any way, but in that event the assignee or assignees elected by the creditors shall with- in twenty days thereafter make and tile in the office of the county recorder where the assignment is first recorded, a verified inventory of all assets received by them; [Citation by court to appear, etc.] and such assignee or assignees may at any time, or from time to time, after the transfer to them by the sheriff, by petition to the superioi court of the county [,] or city and county [,] where the as- signment is first recorded, cause the assignor, by order or citation [,] to appear before said court, or a cominissioner or referee to be appointed by it, at a time and place within the county, or city and county, to be designated in the order or citation, to be examined touching the matters mentioned in section three thousand four hundred and sixty-one, and any other matters relative to the assignment, and to have with him all books of account, vouchers, and papers relating to the assigned property; and such court may by its order re- quire the surrender to such assignee or assignees of such books, vouchers, and papers, to be bj^ them retained until their trust is fully completed and performed. History: Enacted March 21, 1S72; amended March 7, 1.S89, Stats, and Amdts. 1,SS9, pp. 82-3. §3463. RECORDING ASSIGNMENT AND FILING INVENTORY. An assignment for the benefit of creditors must be recorded, and the inventory required by section thirty-four hundred and sixty-one filed with the county re- corder of the county in which the assignor resided at the date of the assignment; or, if he did not tlien reside in tliis state, with the recorder of tlie county in wliich liis ])rinciinil place of business was then situated; or, if he had not tlien a 1043 §§3464-3466 ' civil code. [Div.IV.Pt.IT. residence or place of business in this state, with the recorder of the county in which the principal part of the assigned property was then situated. History: Enacted March 21, 1872. §3464. SAME. MORE THAN ONE ASSIGNOR RE- CORDING ASSIGNME'NT. If an assignment for the bene- fit of creditors is executed by more than one assignor, it may be recorded, and a copy of the inventory required by section thirty-four hundred and sixtA-one may be filed with the re- corder of the county in which any of the assignors resided at its date, or in which any of them, not then residing in this state, had then a place of business. History: Enacted March 21, 1872. §3465. ASSIGNMENT, WHEN VOID. An assignment for the benefit of creditors is void against creditors of the assignor and against purchasers and encumbrances in good faith [,] and for value [,] unless it is recorded as provided in' this title, and unless either the inventory required by section three thousand four hundred and sixty-one, or the inventory required of the assignee or assignees by section three thou- sand four hundred and sixty-two [,] is filed in the manner provided in this title and within the time designated. History: Enacted March 21, 1872; amended February 25, 1S7S, Code Amdts. 1S77-8. p. 90; March 7, 1889, Stats, and Amdts. 1889, p. S3. § 3466. ASSIGNMENT OF REAL PROPERTY. Where an assignment for the benefit of creditors embraces real property, it is subject to the provisions of article four of the chapter on recording transfers, as well as to those of this title. History: Enacted March 21, 1872. 1044 Tit. Til. 1 BOND— CONDITIONS. §§3467,3468 § 3467. BOND OF ASSIGNEES. No bond shall be given liy 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 su- perior court of the county, or city and county, in which an inventory in accordance with the provisions of this title is filed, with sufficient sureties to be approved by such judge and conditioned for the faithful discharge of the trust and the due accounting for all moneys received by the assignee, which bond must be filed in the same office with the inven- tory; and any assignee failing to comply with the provisions of this section may be removed by the above-named superior court on petition of the assignor or any creditor, and his successor appointed by such court. History: Enacted March 21, 1872; amended February 15, 1883, Stats, and Amdts. 1883, p. 2; March 7, 1889, Stats, and Amdts. 1889. p. S3. §3468. CONDITIONS OF DISPOSAL AND CONVER- SION. Until a verified inventory has been made and filed, either by the assignor or assignee, as required by the pro- visions of this title, and the assignee has given the bond re- (|uired by the last section, such assignee has no authority to dispose of the property of the estate, or any part of it (ex- cept in the case of perishable property, which in his discre- tion he may dispose of at any time, and receive the proceeds of sale thereof); nor has he power to convert the property, or the proceeds of any sale of perishable property, to the pur- poses of the trust. [Publication by assignee.] W'itliin ten days after the filing of his bond, the assignee must commence the publication (and such publication shall continue at least once a week for four weeks), in some newspaper published in the county, or city and county, where the inventory is filed, of a notice to 1045 55,3468 CAYU. CODK. [ Div.I V.Pt.I I. creditors of the assignor, stating the fact and date of the assignment, and requiring all persons having claims against the assignor to exhibit them, with the necessary vouchers, and verified by the oath of the creditor, to the assignee, at his place of residence or business, to be specified in the no- tice; and he shall also, within ten days after the first pub- lication of said notice, mail a copy of such notice to each creditor whose name is given in the instrument of assign- ment, at the address therein given. After such notice is given, a copy thereof, with affidavit of due publication and mailing, must be filed witli the countj' recorder with whom the inventory has been filed, which affidavit shall be prima facie evidence of the facts stated therein. [Dividends.] At any time, or from time to time, after the expiration of thirty days from the first publication of said notice (provided, the same shall also have been mailed as in this section provided), the assignee may, in his discretion, declare and pay dividends to the creditors whose claims have been presented and allowed. No dividend already de- clared shall be disturtjed by reason of claims being subse- quently presented and allowed; but the creditor presenting such claims shall be entitled to a dividend equal to the per cent already declared and paid, before any further dividend is made; provided, however, that there be assets sufficient for that purpose; and provided, that the failure to present such claim shall not have resulted from his own neglect, and he shall attach to such claim a statement, under oath, show- ing fully wh}^ the same was not before presented. When a creditor has a mortgage or pledge of real or per- sonal property of the debtor, or a lien thereon, for securing the payment of a debt owing to him from the debtor, and shall not have conveyed, released, or delivered up such se- curity to the sheriff, as provided for by section three thou- sand four hundred and forty-nine of this code, he shall be admitted as a creditor only for the balance of the debt after deducting the value of such mortgage, pledge, or lien, to be 1046 Tit. III. I ACCOUNTING OF ASSIGNEE. §§3469,3470 ascertained bj^ agreement between him and the assignee, or by a sale thereof, to be made in such manner as the superior court of the county in which the assignment is made shall direct; or the creditor may release or convey his claim to the assignee upon such property, and be admitted to prove his whole debt. [Right of redemption.] If the value of the property ex- ceeds the sum for which it is so held as security, the as- signee maj' release to the creditor the debtor's right of re- demption thereon on receiving such excess; or he may sell the property, subject to the claim of the creditor thereon; and in either case the assignee and creditor, respectively, shall execute all deeds and writings necessary or proper to consummate the transaction. If the property is not sold or released, and delivered up, the creditor shall not be allowed to prove any part of his debt. History: Enacted March 21, 1872; amended March 7, 1889, Stats, and Amdts. 1889, p. 83; March 26, 1895, Stats, and Amdts. 189.5, p. 84. § 3469. ACCOUNTING OF ASSIGNEE. After six months from the date of an assignment for the benefit of creditors, the assignee maj' be required, on the petition of anj' creditor, to account before the superior court of the countj^ where the accompanying inventory was filed in the manner prescribed by the insolvent laws of this state. Hi.story: Enacted March 21. 1872; amended February 15, 1883, Stats, and Amdts. 1883, p. 3. §3470. PROPERTY EXEMPT. Property exempt from execution, and insurance upon the life of the assignor, do not pass to the assignee by a general assignment for the benefit of creditors, unless the instrument specially mentions them, and declares an intention that they should pass thereby. History: Enacted March 21, 1S72. 1047 §§3471-3473 civil code. [Div.IV.Pt.II. §3471. COMPENSATION. The elected assignee or as- signees for the benefit of creditors shall be entitled to the same commissions on assignments heretofore and hereafter made as are allowed by law to the assignees in insolvency, and the assignment cannot grant more. Such assignee or as- signees shall also be entitled to all necessary expenses in the management of their trust. History: Enacted March 21, 1S72; amended March 7, 1889, Stats, and Amdts. 1889, p. 84. '§3472. ASSIGNEES PROTECTED FOR ACTS DONE IN GOOD FAITH. An assignee for the benefit of credi- tors is not to be held liable for his acts, done in good faith, in the execution of the trust, merely for the reason that the assignment is afterward adjudged void. History: Enacted March 21. 1n72. §3473. ASSENT OF CREDITOR NECESSARY TO MODIFICATION OF ASSIGNMENT. An assignment for the benefit of creditors which has been executed and re- corded so as to transfer the propertj'^ to the sheriff, or a transfer by the sheriff to the elected assignee or assignees which has been executed and recorded, cannot afterwards be modified or canceled by the parties without the consent of the assignor and of every creditor affected thereby. History: Enacted March 21, 1872; amended March 7, lbS9, etats. and Amdts. 1889, p. 84. 1048 Pt.III.Tit.I.] NUISANCE— PRINCIPLES. §§3479,3480 PART III. NUISANCE. Title I. General Principles, §§ 3479-3484. II. Public Nuisances, §§3490-3495. HI. Private Nuisances, §§3501-3503. TITLE I. GENERAL PRINCIPLES. § 3479. Nuisance, what. § 3480. Public nuisance. § 3481. Private nuisance. § 3482. What is not deemed a nuisance. § 3483. Successive owners. § 3484. Abatement does not preclude action. § 3479. NUISANCE, WHAT. Anything which is injuri- ous to health, or is indecent or ofifensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or un- lawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance. History: Enacted March 21, 1872; amended March 30, 1874, Code Amdts. 1873-4, p. 268; amended by Code Commission Act, March 16, 1901, Stats, and Amdt.s. 1900-1, p. 420, held, unconsti- tutional, see hi.story, § 4 ante. §3480. PUBLIC NUISANCE. A public nuisance is one which affects at the same time an entire community or neigh- 1049 §§3481-3484 Civil, code. [Div.IV.Pt.TIT. borhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon in- dividuals may be unequal. Hls*ory: Enacted March 21. 1S72; amended March 30, IHH, Code Amdts. 1S73-4. p. 268. § 3481. PRIVATE NUISANCE, Every nuisance not in- cluded in the definition of the last section is private. History: Enacted INIarch 21, 1ST2. §3482. WHAT IS NOT DEEMED A NUISANCE. Nothing which is done or maintained under the express au- thority of a statute can be deemed a nuisance. History: Enacted March 21, 1872. §3483. SUCCESSIVE OWNERS. Every successive owner of property who neglects to abate a continuing nuis- ance upon, or in the use of, such property, created by a for- mer owner, is liable therefor in the same manner as the one who first created it. History: Enacted March 21, 1872. §3484. ABATEMENT DOES NOT PRECLUDE AC- TION. The abatement of a nuisance does not prejudice the right of any person to recover damages for its past existence. History: Enacted March 21, 1872. 1050 Tit. II. I PUBLIC NUISANCE. §§3490-3493 . TITLE 11. PUBLIC NUISANCES. § 3490. Lapse of time does not legalize. § 3491. Remedies against public nuisance. § 3492. How regulated. § 3493. Remedies for public nuisance. § 3494. Action. § 3495. How abated. § 3490. LAPSE OF TIME DOES NOT LEGALIZE. No lapse of time can legalize a public nuisance, amounting to an actual obstruction of public right. History: Enacted March 21, 1S72. §349L REMEDIES AGAINST PUBLIC NUISANCE. The remedies against a public nuisance are: ' 1. Indictment or information; 2. A civil action; or, 3. Abatement. History: Enacted Marcli 21, 1S72; amended March 2, 1880, Code Amdts. 1880 (C. C. pt.) p. 1. §3492. HOW REGULATED. The remedy by indict- ment or information is regulated by the penal code. IliMtory: Enacted March 21, 1S72; amended March 2, 1880, Code Amdts. 18S0 (C. C. pt.) p. 1. Cogiinte sections to which reference is here made are Penal Code §§ 370-374. § 3493. REMEDIES FOR PUBLIC NUISANCE. A pri- \'ate person may maintain an action for a ])ublic nuisance, if it is specially injurious to himself, but not otherwise. History: Enacted March 21, 1872. 1051 §5,3494,3495 ^^iviL code. [ Div.IV,Pt.lIi. § 3494. ACTION. A public nuisance may be abated by any public body or officer authorized thereto by law. History: Enacted March. 21, 1872. § 3495. HOW ABATED. Any person may abate a pub- lic nuisance which is specially injurious to him by removing, or, if necessary, destroying the thing which constitutes the same, without committing a breach of the peace, or doing unnecessary injury. HiHtory: Enacted March 21, 1872. ^ 1052 Tit.IlI.] PRIVATE NUISANCE. §§ 35(J1-35U3 TITLE III. PRIVATE NUISANCES. § 3501. Remedies for private nuisance. § 3502. Abatement, when allowed. § 3503. When notice is required. §3501. REMEDIES FOR PRIVATE NUISANCE. The remedies against a private nuisance are: 1. A civil action; or, 2. Abatement. History: Enacted March 21, 1872. Co^uate .seotion— Nuisance defined, and actions for. — See Code Civ. Proc. § 731 and note. §3502. ABATEMENT, WHEN ALLOWED. A person injured by a private nuisance may abate it by removing, or, if necessary, destroying the thing which constitutes the nuis- ance, without committing a breach of the peace, or doing un- necessary injury. History: Enacted March 21, 1872. §3503. WHEN NOTICE IS REQUIRED. Where a pri- vate nuisance results from a mere omission of the wrong- doer, and cannot be abated without entering upon his land, reasonable notice must be given to him before entering to abate it. History: Enacted March 21, 1872; amended by Code Commis- sion Act March 16, 1901, Stats, and Amdts. 1900-1, p. 423, held unconstitutional, see history, § 4 ante. Noll<'e to sin't'CMsive owner. — See note 14 Am. Dec. 338-341. 1053 §§3509-3515 CIVIL CODE. [Div.IV,Pt.IV. PART IV. MAXIM.S OF JURISPRUDENCE. § 3509. The maxims of jurisprudence hereinafter set forth are intended not to qualify any of the foregoing provisions of this code, but to aid in their just application. Historj-: Enacted March 12, 1872.. § 3510. When the reason of a rule ceases, so should the rule itself. History: Enacted March 12, 1872. §3511. Where the reason is the same, the rule should be the same. History: Enacted March 12, 1S72. § 3512. One must not change his purpose to the injury of another. History: Enacted March 12, 1872. § 3513. Any one ma}' waive the advantage of a law in- tended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement. History: Enacted March 12, 1872. § 3514. One must so use his own rights as not to infringe upon the rights of another. History: Enacted March 12, 1872. § 3515. He who consents to an act is not wronged by it. History: Enacted March 12, 1872. 1054 Pt.TV.l MAXIMS OF JURISPRUDENCE. §§3516-3524 § 3516. Acquiescence in error takes away the right of ob- jecting to it. History: Enacted March 12, 1872. . § 3517. No one can take advantage of his own wrong. Hi.story: Enacted March 12, 1S72. § 3518. He who has fraudulentlj- dispossessed himself of a thing may l)e treated as if he still had possession. History: Enacted March 12, 1S72. § 3519. He who can and does not forbid that which is done on his behalf, is deemed to have bidden it. History: Enacted Mai'ch 12, 1872. § 3520. No one should sufifer by the act of another. History: Enacted March 12, 1S72. § 3521. He who takes the benefit must bear the burden. History: Enacted March 12, 1S72. § 3522. One wjio grants a tiling is presumed to grant also whatever is essential to its use. History: Enacted March 12, 1872. § 3523. l'~or every wrong there is a remedy. History: Enacted March 12, 1872. § 3524. Between those who are equallj^ in the right, or e(|ually in the wrong, the law does not interpose. History: Enacted March 12, 1872. 1055 §§3525-3533 civil code. [Div.IV. § 3525. Between rights otherwise equal, the earliest is preferred. History: Enacted March 12, 1S72. § 3526. Xo man is responsible for that which no man can control. History: Enacted March 12, 1872. § 3527. The law helps the vigilant, before those who sleep on their rights. History: Enacted March 12, 1872. § 3528. The law respects form less than substance. History: Enacted March 12, 1872. § 3529. That which ought to have been done is to be re- garded as done, in favor of him to whom, and against him from whom, performance is due. History: Enacted March 12, 1872. § 3530. That which does not appear to exist is to be re- garded as if it did not e.xist. History: Enacted March 12, 1872. § 3531. The law never requires impossibilities. History: Enacted March 12, 1872. § 3532. The law neither does not requires idle acts. History: Enacted March 12, 1S72. § 3533. The law disregards trifles. History: Enacted March 12, 1872. 1056 Pt.IV.] MAXIMS OF .JURISPRUDENCE. §§3534-3543 § 3534. Particular expressions qualifj- those which are general. Hi.«itorj-: Enacted March 12, 1S72. § 3535. Contemporaneous exposition is in general the best. Hi.sl«irj-: Enacted March 12, 1872. § 3536. The greater contains the less. History: Enacted March 12, 1872. § 3537. Supcrtiuity does not vitiate. Hi.slory: Enacted March 12, 1S72. § 3538. That is certain which can be made certain. History: Enacted March 12, 1872. § 3539. Time does not confirm a void act. History: Enacted March 12, 1872. § 3540. The incident follows the principal, and not the principal the incident. History: Enacted March 12, 1872. § 3541. An interpretation which gives effect is preferred to one which makes void. History: Enacted March 12, 1872. §3542. Interpretation must be reasonable. History: Enacted March 12, 1S72. § 3543. Where one of two innocent persons must suffer by the act of a third, he, by whose negligence it happened, must be the sufferer. History: Enacted March 12, 1872. 3* 1057 INDEX. [References are to sections.] A CONSIDERATION. See tit. Valuable Consideration. ABANDONMENT. See tit. Appropriation. as to 2716. in marine insurance. See tit. Marine Insurance. as to generally, 2716-2732. notice on actual loss, not necessary, 2709. of chil* adoption, 224. by father, custody on, 197. guardianship of, 246. parent presumed to relinquish on, 211. what deemed to be, 224. of homestead, 1243, 1245. of husband by wife, support, 175. of ship by master, 2041. of water appropriation, 1411. parent by child, no liability for support, 20S. shipmaster's authority terminated by, 2381. thing abandoned, 1872. water appropriation, of, 1411. what deemed to be of child, 224. ABATEMENT by legacy, 1362. of nuisance. See tit. Nuisance. as to generally, 3484-3503. ABDUCTION as to, in general, 49. of husband or wife, etc., 49. ABSOMITE OWNERSHIP what is, 679. ACCEPTANCE. See tits. Contract; Nck tialilc iiiKtrnniciits. of accord, 1523. of benefit of transaction, 1589. of gift. See tit. Gift. of guaranty, 2795. of partial performance, 1741. of principal, waives interest, when, 3290. of rent, lease renewed by, when, 1945. partial performance, of, effect, 1741. 1059 INDEX. [References are to sections. J ACCESSION as to acquisition of property by, 1000. to p^i'i^onol property by uniting several tilings. 102.5, 120.5. increase of thing hired belongs to hirer, 1926. increase of thing pledged, 2989. inseparable materials, 1029. materials of several cwners, 1030. of tiling pledged, belongs to pledgeor, 2991. owner's election between thing and its value, 1032. ownership of. 732. principal part, what, 1026, 1027. product of thing belongs to hirer, 1926. the more valuable or bulky, 1027. uniting materials and workmanship, 1028. wilful trespassers, 1031. wrongdoers, liability in damages, 1033. to realty alluvion. See tit. Alluvion. as to, generally, 1014. avulsion. See tit. Avulsion. as to, generally, 1015. fixtures. See tit. Fixtures. as to, 1013. removable by tenant, 1019. islands in navigable and non-navigable streams. See tit. Islands. ' formed by division of streams, 1018. sudden removal of bank. See tit. Avulsion. uniting materials and workmanship, 1038. wilful trespass, 1031. wrongdoer liable in damagt^s. 1033. ACCESSORY a lien is, 2909. transfer of principal thing passes, 1084, 3540. ACCIDENT. See tit. Mistake. deposit by, to be accepted, 1816. disregarding erroneous parts in written instrument, 1640. trust arising from, 2224. ACCIDENT INSrRANCE CORPORATION. See tit. Mutual Life, Health, and Accident Insurance Corporation. investment of funds of, 421, 421[a]. ACCIDENT INSURANCE POLICY "compensation," meaning of, 164 4. 1060 INDEX. [References are to sections.] .4CCORD AlVD SATISFACTION acceptance of consideration extinguishes obligation, 1523. accord as to what is an, 1521. effect of, 1522. definition of, 1521. part performance is satisfaction, when, 1524. satisfaction, ■what is, 1523. ACCOrXT. See tit. Accounting. by employee, 1986, 2014. by partner, 2412, 2438. by servant, 1986, 2014. by trustee, 2237. . partners' mutual liability to, 2412. ' ACCOl XTIXG. See tit. Account. by partners. 2412. ACCRETIOX. See tit. Accession. ACCrMUI.ATIOlV application of income to support of minor, 726. direction."* for for benefit of minors in being, must be, 724. for longer term than until attaining majoiity, 725. void in part when, effect of. 725. void unless allowed by law, 723. when void, 724, 725. express trust for, of rents and profits, 857. of income of property for benefit of one or more persons, 724. rules governing, 722. to commence at a subsequent date, 724. to commence on the creation of the interest, 724. rules by which governed, 724. times of commencement and termination. 724. Ari\XOAVI,EDGE. See tits. Adoption; Rn.stards. .\CK]VO\VI,EDGMEXT. See tits. Acl^nowIedRnieiil of. lontrii- nient.«i; Deeds. Registration; AVills. act citing defect in, 1207. affidavit as to identity of person executing, 1185. articles of incorporation, of, 292. assignment for benefit of creditors, of, 3458, 3459. by attorney in fact, form of, certificate, 1189. certificate of by attorney in fact, form of, 1189. damage for defective. 1202. 1061 INDEX. [References are to sections.] ACKNOWLEDGMENT (continued). oertifioate of (continued). defective , how corrected, 1202. validating, 1207. indorsement of, on, 118S. Justice of tlie peace, by, 1194. contempt, punishment for by officer taking, 1201. conveyance executed before code, 1205, 1206. corporations, of as to how executed, llGl. form of acknowledgment by, 1190. prerequisites of taking, 1185. correcting defective certificate of, 1202. damages for defective, 1202. declaration of marriage, of, 76, 79^/^. deputy may take, 1184. foreign certificate of clerk, 1189. form of, 1189. who may take, 1182, 1183. form of by attorney in fact, 1188. by corporation, 1190. general, 1189. of foreign. 1189. , illegitimate child, of, 1387. indorsement on, 1188. interpreters, 1201. inventory of wife's property, of, 165. justice of the peace, power to take, 1194. mortgages, of, 2952. of abandonment or declaration of homestead, 1243. >^f articles of incorporation, 292. of assignment for benefit of creditors, 3458. of assignment of debt secured by mortgage, 2936. of certificate of partnership, 2480. of conveyances made before the code, 1205, 1206. of homestead abandonment of, 1243. conveyance of, 1242. declaration of, 1243. encumbrance of, 1242. selection of, 1262, 1266. of illegitimate child, 1387. of inventory of wife's property, 165. 1062 INDEX. [References are to sections.] ACKNOWLEDGMENT (continued). of marriag^e declaration of, 77. settlement of, 178-180. of married woman's conveyance, 11 87. deed, 1093. power of attorney, 1094. of partnership certificate, 2480. of power of attorney and revocation, 1216. of sale of wine, 3440. officers taking, authority of, 1194, 1201. partnership, of, certificate to, 2480. prerequisite to taking, 1185. proof of instruments which are not, 119.">. action and judgment for, 1203, 1204. recorded ^vithout what instruments can not be, llGl. what instruments m.ay be, 11.59, 11 GO. requisites of, 1185. seals of officers to be affixed when, 1193. signatures of officers must be affixed, 1193. subpoenas may be issued by officers taking, 1201. wliat law governs, 1205, 1206. who may take within the state, 1180-1184. who may take witliout the United States, 1183. witnesses to. 1196, 1197. ACKNOAVI^EDGMKjVT of IIVSTUr>IElVTS by married ■»voii-:aii certificate of acknowledgment, 1187-1189. general form of certificate of witliin the state, 11S9. outside of the state, 1189. by w^hom may be taken within the state, 1180-11 SI. by whom may be taken without the state, 1182. by whom may be taken without the United States, 1183. certificate of justice in certain cases, 119 1. defeetively executors. fraud of, 2306. !;;eiieral ageut autliority to receive price, 2325. defined, 2297. general or special agency, 2297. incapacity of party terminates, 2345. indemnity against acts of, 2775. instructions, agent's power to disobey, 2320. instrument executed by binds principal, when, 2337. instrument intended to bind principal does not bind agent. 2337. insurance by, 2589. interpretation of authority, 2321. manager of ship general agent for owners, 2070. married woman's power of attorney, 1094. measure of agent's authority, 2315-2318. minor cannot delegate power, 33. mutual obligations of principals and agents to third persons, 2330. necessary authority of agent, 2319. negligence or omission of, principal responsible, 2338. not having capacity to contract, 2345. notice of dishonor by agent, 3148. notice to agent. See tit. Coustruotive iu»tiee. binds principal, when, 2332. obligation of agent to surrender property to third person. 2344. oral authorization, 2309. ostensible agency, what is, 2300. 1068 INDEX. [References are to sections.] AGENCY (continued). ostensible authority of ageut as to, generally, 2300. defined, 2300. of factor, 2369. principal not liable for acts under, when, 2334. what amounts to, 2317. particular agencies, as to generally, 2362. partner agent for firm, 2429. liable as agent, 2443. pilots. See tit. Sliiiuiiaster.s ami Pilots. power of attorney to gratuitous employee, 1975. poWer to disobey instructions, 2320. price, authority to receive, 2325. priuoipnl bound by instrument executed by agent, when, 2337. how affected by agent's acts within scope of authority, 2330. when bound by incomplete execution, 2331. when bound where agent exceeds authority, 2333. ratification creates agency, 2307. created, agent's liability respecting, 2339. effect of giving exclusive credit to, 2335. of agent's acts, 2310. of part of transaction, 2311. void, when, 2312. ' i ^ * wlien and hovr may be made as to, generally, 2310. not to work injury to third party, 2313. of part of transaction, 2311. rescission of, 2314. when ratification void, 2312. real estate agent may give covenant, 2324. real estate brokers, statute of frauds relating to, 1624. representations, power of agent to make, 2319. rescission of ratification of agent's act, 2314. responsible to third parties, 2343. revocation by principal terminates agency, 2355. rights of persons dealing with agent without notice of agency, 2336. scope of, agent not to define, 2322. set-off against claim of principal by third person, 2336. shipmasters. See tit. SliipmasUTN and I'iiotN. ship's manager. See tit. Sliiii'M Klana^^er. 1069 INDEX. [References are to sections.] AGENCY (continued). special agent authority to receive price, 2325. defined, 2297. statute of frauds in relation to, 1624, 2309. Miibagent liability of, 2022. rightfully appointed represents principal, 2351. termination of power coupled with interest, 2355. unauthorized employment of, 2350. termination of by death of agent, 2355. by death of principal, 235 6. by extermination of subject of, 2355. where coupled with an interest, 2356. third person, agent's obligation to surrender property to, 2344. third persons not to be injured by ratification of agenfs act, 2313. torts, agent's liability for to third person, 2343. torts of agent, liability of principal for, 2336. 2339. trustee's power, as, 2267. warrant of authority of, 2323, 2342. who may appoint an agent, 2296. who may be an agent, 2296. wilful wrongs of the agent, principal liable for, when, 2339. AGENT. See tits. Agency; Employment; Master and Servant. appointment of for co-operative corporations, 653, 653q, 653x. collecting agent. See tit. Attorney. duties and powers of, 2021. must conform to authority conferred, 2019. must keep his principal informed, 2020. notice to in line of duty. See tit. Constructive A'otice. of corporations. See tits. Corporations; Corporate Po^v»»rs. of co-operative agricultural, etc., association, appointment, of, 653q. of co-operative corporations, appointment of, fi53x. power to sell, and receive payment, 1142. responsibility as subagent, 2022. AGISTOR as to lien upon property, 3051. AGREEMENT. See tit. Contract. seamen not to lose wages by, 2056. 1070 INDEX. [References are to sections.] AGRICULTURAL FAIR CORPORATIONS debts and liabilities, amount tliat may be contracted, 621. liabilities which may be contracted, 621. may acquire and hold real estate, 620. may fix fee, etc., of membership, 622. not for profit, 622. AGRICULTURAL LANDS. See tit. Lease. lease of for more than fifteen years void, 717. ALIENATION. See tit. Conveyance. ALIENS apprenticeship of, 274. estate of, when vests in sovereign, 1404. Inheriting must claim within five years, 672. property rights of, 671. right to inherit and succeed, 1404. ALIMONY. See tits. Allovance; Divorce. pendente lite, when allowed, 137. ALLUVION. See tit. Accession. accession by, 1014. definition of, 1014. islands. See tit. Island.s. ownership of, 1014. sudden removal of bank of stream, 1015. ALTERATION and cancellation of contracts, in general. 1697-1701. of duplicate of contract, 1701. of legal relation of adopted child, 229. of legal relations of husband and wife, 159. .ALTERNATIVE future interest in the, 602. obligations in the, 1448, 1451. ALTERNATIVE OBLIGATIONS. See tit. Oblisratioiis. AMBIGUITA' in contracts, construction of, 1 .376-1 40.3. in wills, construction of, 1323. AMENDMENT. See tit. Corporations. to articles of incorporation, 362. AMUSEMENT, PLACE OF. ETC. rights of citizen-s in, 51. ANIMALS care required of borrow^er, 1SS6. cruelty to. 6n7-607g. damages for injuries to. 3340. depositary of, 1S34. 1071 INDJCX. [References are to sections.] ANIMALS (continued). game. See tit. Game. right to take, 802. injury to, damages for, 3340. killing sheep by dogs. 3341. lien for keeping, 3051. lien of owner for service of stallion, etc., 3062. societies for the prevention of cruelty to. See tit. Sctcieties for the Prevention of Cruelty to Children and Animals. wild, property in, 65fi. ANNUAI- REPORT of bridge, ferry, wharf, chute, and pier corporations, .531. of building and loan associations, 645. of consolidated colleges, etc., 652. of homestead corporations, 565. of land and building associations. See tit. Laud and Build- ing Corporation.s. of religious, social, and benevolent corporations, 596. ANNUITIES definition of, 1357. ANNULMENT OF MARRIAGE. See tit. Divoree. ANTECEDENT WILL. See tit. Wills. revivor by revocation of subsequent will, 1296. ANTENUPTIAL CONTRACTS as to, 178. APPORTIONING E.\SEMENTS. See tit. Easements and Servi- tudes. APPORTIONMENT or hire, when, 1935. of liens, effect of, 2912. APPRAISEMENT of homestead, 1245, 1260. of property found, 1865. APPRAISERS report of and contents of, 1252. to value homestead, 1251. to be sworn, 1250. to determine value and divisibility, 1251. .APPRENTICE. See tit. Master and Apprentiee. APPROPRIATION OF WATER. See tits. Canal Corporations; AVater-Right. maintenance of f^ow of water in stream to canal takes, 1410b. water-right. See tit. Water-Right. water-rights may be acquired by, 1410. 1072 INDEX. [References are to sections.] APPITRTENAIVCKS deemed fixtures, when, 661. irrigation stock appurtenant to land, when, 324. land, to, 662. of ship. See tit. Ships aud Shippiug. pass by transfer of land, 476, 1084, 3540. ARBITRATION partner may submit to, 2430. specific performance of agreement for not enforced, 3390. ARREST of children and commitment to asylums, etc., 60Tg. ARTICLES OF INCORPORATION. See tit. Corporationis. acknowledgment of, 292. amendment of, 362. assent of two-thirds of stockholders, 362. filing copy of amended articles, 362. original and amended articles together contain what, 362. penalty for neglect to file, 362. building and loan association, of, what to contain, 633. amount to be subscribed must be fixed, 293. certain corporations to state further facts in articles, 291. co-operative agricultural, etc., associations. amendment of, 653r. debts at time of, 653r. subscription of, 653b. what to contain, 6.t3o. co-operative corporation,"* amendments of, 653v. what to contain, 653v. copy of must be filed, where, 299[a]. corporate name must not be duplicated nor closely imitated, 296. certificate to be filed, 297. how executed, 292. number of directors and ti'ustees, increasing and diminish- ing, 290. lost, restoration of, 297a. prerequisites to filing of, 294. prima facie evidence, when, 297. restoration of lost, 297a. what they must set forth, 290. ASSESSMENT OF STOCK action to recover assessments, 349. 1073 INDEX. [References are to sections.] ASSESSMENT OF STOCK (continued). action to recover stock .•lold as to, generally, 347. limitation of action, 347. proof of publication and sale, 348. delinciiieut notice of asscssnieut as to, generally, 337. contents of, 338. form of, 337. jurisdiction conferred by, 340. publication of, 339. sale of stock at auction, 341. disposition of stock purchased by corporation, 344. extension of time of delinquent sale, notice of, 345. highest bidder to be purchaser, 342. in default to bidder corporation may purchase, 3 43. how levied, 331, 332. levy of assessment while old assessment unpaid, 333. not invalidated by failure to make publication of notice as required, 346. notice of assessment, 335. delinquent notice, form of, 337. form of notice, 335. publication of notice, 336. service of notice, 336. order of, w^hat shall contain, 334. power to assess, limitation as to, 332. waiver of sale, action to recover assessments, 3 49. .ASSESSMENTS. See tit. Taxes and As.se.s.snient.s. ASSIGNEE. See tit. Assignment for Benefit of Creditors. takes subject to rights of third persons, 34G0. ASSIGNEE OF LESSEE remedies of lessor against, 822. ASSIGNMENT. See tits. Assignment for Benefit of Creditors; Conveyances. as to what may be assigned. See tits. Clioses in Action; Per- sonal Property. of action against street railway for penalty for overcharg- ing, 504. of choses in action, 954. of debt carries mortgage, 2934. , ' of debts secured by mortgage, 2936. of life insurance policy, 2764. of mortgage as notice, 2933. 1074 INDEX. [References are to sections.] .ASSIGNMENT (continued). partner may not make, 2430. warranty of written instrument sold, 17V4. ASSIGNMENT FOR BENEFIT OF CREDITORS assent of creditor necessary to modification of, 3473. assig^nee accounting of, 3469. bond of, 3467. compensation of, 3471. protected for acts done in good faitli, 3472. takes subject to right of tliird persons, 3 460. as to, generally, 3449. certain transfers not affected by, 3451. conditions of disposal and conversion, 346S. debtor may execute, when, 3449. exempt property not affected by, 3470. insolvency, what Is, 3450. instrument of assignment, 3458. compliance with statute necessary to validity, 3459. inventory filing of, 3463. nature and requisites of, 3461. recording of, 3463. where more than one assignor, 3464. verification of, 3462. modification of assignment, assent of creditor neces.sary tf), 3473. of real property, 3466. what debts may be secured, 3452. when assignment void, 3457, 3465. as to, generally, 3457. ASSOCIATIONS AND SECRET ORDERS not insurance corporations, 451. ATTACHMENT exemption of policy of life, etc., insurance from, 4 53k. lien of officer, 3057. of mortgaged personalty, 2968, 2972. ATTORNEY FEES upon foreclosure of mortgage. See tit. I.iiiul and Iliiilding' Corporations. ATTORNEY-GENERAT> duty of when alien does not claim, 1405. may inquire into corporations. 382. in-oceedings by, in case of escheat, 1406. 1075 INDEX. [References are to sections.] ATTORNEY IN FACT as to, 1095. certificate of acknowledgment by, 1192. form of certificate of acltnowledgment by, 1192. how must execute for principal, 1095. officers must affix their signatures, 1193. to convey realty, 1095. revoking power of, 1216. ATTORNMENT by tenant to stranger, effect of, 1948. to landlord on grant of rent, etc., 1111. AUCTION auctioneer's memorandum, 1798. bids by seller or agent, when void, 1797. bid, withdrawal, 1794. by bidding, 1797. defined, 1792. delinquent stock, sale of at, 341. memorandum of auctioneer, 179S. pledge, sale of at, 3005. sale by, 1792. complete, when, 1793. under written conditions modifying, 1795. statute of frauds, 1624. under written conditions, 1795. withdrawal of bid, 1794. ' without reserve, rights to buyer, 1796. AUCTIONEERS. See tit. Agents. authority from seller, 2362. authority from bidder, 2363. memorandum by, as to, 179S. AUTHOR property of in writings, 980-985. AUTHORITY joint, how construed, 12. AUTOMOBILE franchise for constructing road for, 524. AVERAGE. See tit. General Average. AVOIDING TOULS penalty for, 519. AVUUSION. See tit. .\coretlon. distinction from alluvion. 1015. islands. See tit. Islniid.s. sudden removal of bank, l(il5. 1076 INDEX. [References are to sections.] AWARD. See tit. Arbitration. BADGKS officers of railroads to wear, 488. to be worn by agents of society for prevention of cruelty, etc., 607f. HAGGAGK. See tits. Carriers; itailroatl C'oriioratious. bicycle as, 2181. carried and delivered how, 2183. at owner's risk, when, 2183. check to be affixed to by railroad, 4 79. checking, generally, 2183. consists of what, 2181. damages for failure to check, 479. liabilky for, 2182. lien of carrier on, 2191. obligation to carry, 2180. obligation to carry on stage, 2180. sales of by Innkeeper for storage, 1862. to be checked, 479. uncliecked, carried at (owner's ri.sk, 2183. BAIL. See tit. ludemnity. as to wliat is, 2780. how regulated, 2781. BAILED HOPS tare on, 995. BAILSlEiNT. See tits. Depo.sit; Depositary; Hiring; Loan for Use; Wareliojiseniaii. gratuitous depositary, creditor is, when, 150.5. BANK. See tits. Banking Corporations; Snxings Banlcs. book and notice to directors and stockholders, 312[a]. lien of banker, 3054. BANK ASSOCIATION. BanlwiiiK Corporations. BANK COMMISSIONER land and building corporations to report to, G14. subject to, 647. report of, 644. BANK-NOTES. See tit. NeKOtialile Instruments. as to, 3095, 3261. BANKER lien of, 3054. BANKING CORI'OBATIONS as to, 300. capital stock, of, 3er of Com- nieree, Boards of Trade, Kte. : ColleKes and Seminaries; Co- o|H'rative Business Associations. adoption of, when, how and by whom, 301. amendment of by-laws, how made, 304. co-operative agricultural, etc., associations, what to con- tain, 653p. co-operative' coiporations, what to contain, 653w. 1083 INDEX. [References are to sections.] BY-LAWS OF CORPORATIONS (continued). of municipal corporation. See tit. Municipal Corporation. of mutual benefit and life associations, what may provide, 453. of mutual life, etc., insurance corporations, may limit amount of stock, etc., 445. record of, 304. when, how, and by whom adopted, 301, CAIVAI. CORPORATIONS as to, generally, 548-552. maintenance of flow of ^vater in stream to canal takes, 141Db. CAIVCELATION and alteration of contracts, as to, generally. 1699-1701. in part, 3414. of acceptance of bill of exchange, 3198. of deed does not revest title. 1058; of instruments, in general, 3412, 3414. of will, 1292, 1293. recording of, 3412. CANCELATION OF INSTRVMENTS cancelation in part, when, 3414. instrument obviously void, 3413. may be ordered, when, 3412, 3414. CAPACITY TO CONTRACT. See tit. Contract. of idiots. See tits. Idiots; Persons of Iiisoiinil >tinci. of intoxicated person. See tit. Intoxication. of minors. See tits. Infant; Minors. as to, 1557. CAPITAIj STOCK. See tit. Corporation. assessment of. See tit. Assessment of Stock. assessment of railroads, 455. minimum required to be paid in before incorporation, 290a. of railroad corporation. See tit. Railroad Corporations. transfer of railroad stock, 455. not valid except, 455. CARE. See tit. NegrHgence. degree of, 16. great borrower to use, 1886. carrier of messages for reward, to use, 2161. employee, for his own benefit, to use, 1979. shipmaster to use, 2043. ordinary carrier of property for reward, 2096. 1084 INDEX. [References are to sections.] CARE (continued). ordinary (continued). carrier of persons gratuitously, 2090. depositary for hire, to use, 1852. employee for reward, to use, 197S. hirer, to use, 1928. voluntary agent, to use, 2078. trustee, to use, 2259. slight /' gratuitous carrier of property to use, 2114. gratuitous depositary, to use, 1846. gratuitous employee, to iise, 1975. utmost carrier of messages by telegraph, to use, 2161. carrier of persons for reward, to use, 2100. CARELESSNESS. See tit. lVes:Tis;eiioe. CARRIAGE common carriers. See tit. Coniiiiini Carripr.**. of messages. See tits. Carriers of >I«»ssaso.s; Telegrams. of persons. See tit. Carriers of Persons. of property. See tit. Carriers of Property. CARRIAGE IIV GENERAL,. See tit. Common Carrier. carriers by sea, rights and duties, 2088. contract of carriage, 2085. gratuitous carriers, obligations of. 2089. who has begun to carry, 2090. kinds of carriers, 2086. inland carriers, 2087. marine carriers. 2087. CARRIER act of God relieves of liability, 2194. baggage. See tit. Bajj^aKe. bill of lading. See tit. Rill of t.iuUtiK. common carrier. See tit.'?. Common Carriers; Common Car- riers of Persons; Common Cjirriers rf Property. defined, 2168. compensation. 2173. payment and refusal of, 2173. connecting, delivery to, 2201. consignee defined, 2110. contract of carrier, 2085. damages for breach of obligation to deliver, 3316. for breach of obligation to receive goods, 3315. for delay, 3317. 1085 INDEX. [References are to sections.] CARRIER (continued). damages for breai-h of obligation to deliver (continued). for non-delivery, 3316. for refusal to receive freight, 3315. delay in carriage of freiglit, liability for, 2196. delays, generally, 2104. deliverj- exonerates carrier, when, 2131. in part, apportionment of freight, 2140. manner of, 2118, 2119. not made, carrier may exonerate himself, how, 2121. obligations of carrier on, 2120. place of, 2118, 2119. surrender of bill of lading may be demanded before, 2132. to connecting carriers, 2201. duty of carrier of persons. See tit. Coniniou Carriers of Per- sons. ejection of passengers. See tit. Ejection for Xon-Paj-nient of F'are. exemption from liability where negligent, none, 2196. expense of transportation of things sold, 1755. fare. See tit. Pare, freigltt defined, 2110. not accepted, to be stored by carrier, 2121. not delivered, obligation of carrier, 2120. obligation to accept, 2169. freightage apportionment of, 2140. according to distance, 2142. by contract, 2140. carriage further than agreed, 2143. consignee liable for, when, 2137. consignor liable for, when, 2138. defined, 2110. for natural increase of freight, 2139. lien for, 2144. marine insurance. See tit. Marine Insurance. sale of perishable property for, 2204. to be paid, when, 2136. general average adjustment. See tit. General Average. gratuitous care required of. See tit. Care. inland, what is, 2087. insurable interest of. See tit. Insurable Interest. as to; 2548. 1086 INDEX. [References are to sections.] CARRIER (continued). jettison. See tit. Jettison, liability for negiigrence cannot be relieved from, 2175. limiting of, generally, 2174-217^;. when limitation on void, 217ij. lien for freightage, 2144. limitation on, without notice of value, 2200. on baggage, 2191. loss of freight liable for, when, 2194. no liability for^ when, 2194. loss of property or money, liability for, 2177. loss, proof of, 2202. loss through negligence, liability, 2195. marine. See tit. Ships anrt Shipping. negligence of, cannot be exempted from by contract, 219.' notice carrier to give for non-delivery, 2120, 2121. of value of freight, to be given, 2200. obligations. See tit. Obligations. limited, how, 2174-2176. of messages. See tit. Carriers of ^lessages. passengers. See tit. Passengers. damages for refusal to receive, 3315. duty to, generally, 2100. ejection of. See tit. Ejection for Xoii-Paynieut «»f Fare. entering train without payment of fare, 21S9. safe and fit vehicles. See tit. Vehicles. seats to be provided, 21S5. penalty for failure to observe schedule time, 2172. perils of sea. See tit. Perils of Sea. preferences may be given, when, 2171. preferences not to be given, when, 2170. property care required of, 2114. conflicting orders of consignee and consignor, 211fi. must obey directions, 2115. rate of speed, 2104. rules and regulations, 2186. sale of perishable freight, 2204. schedule time must be observed, 2172. state may be given preferences, 2171. 1087 INDEX. [References are to sections.] CARRIER (continued). tickets. See tit. Tickets. time for running must be observed, 2172. United States may be given preferences, 2171. value of articles to be stated, when, 2200. vehicles. See tit. Vehicles. not to be overcrowded, 2102. written contract of, 2176. CARRIER'S DELAY damages for, 3317. CARRIER'S OBLIGATION TO DELIVER breach of damages for, 3316. CARRIER'S OBLIGATION TO RECEIVE GOODS breacli of damages for, 3315. CARRIERS OF MESSAGES (other than telegraph and telephone companies). See tits. Telegraph and Telephone Companies. degree of care and diligence required, 2162. duty to deliver, 2161. CARRIERS OF PERSONS, See tit. Common Carriers of Persons. gratuitous carriage, 2090. degree of care required, 2096. carriers for regard as to who are passengers. See tit. Passengers. delays, 2104. general duties of, 2100. negligence of. See tit. Negligence. overloaded vehicles prohibited, 2102. rate of speed, 2104. treatment of passengers, 2103. vehicles. See tit. Vehicles. bound to provide safe and fit, 2101. not to be overloaded, 2102. CARRIERS OF PROPERTY bill of lading. See tit. Bill of Lading. as to generally, 2126-2132. care and diligence required of, 2114. a"s to generally, 2114. conflicting orders by consignor, 2116. consignee not accepting, disposition made of freight. delivery of freight as to generally, 211S. notice when not delivered, 2120. place of delivery, 2119. stoppage in transitu. See tit. Stoppage in Transitu. when consignee does not accept, 2121. 1088 INDEX. [References are to sections.] CARRIERS OP PROPERTY (continued), deviation from route, 2117. freightage. See tit. Freislitase. as to generally, 2136-21-14. general average. See tit. General AverjiRe. as to generally, 2148-2162. general definition, 2110. notice wlien freight not delivered, 2120. obligations of, 2114. stowage, 2117. to obey directions of sliipper, 2116. CAUSA MORTIS. See tit. Gitt.s. CEMETERIES. See tit. Cemetery Corporations. burial rights of servant, 801, 802. disposal of lots, 598. establisliing by corporation, 595. CEMETERY CORPORATIONS alienability of lots revived how, 613. annual report of, 609. l)onds may be issued, 611. liurial lot inalienable, wlien, 613. improvement in grounds, 611, 612. inalienability of lot, when, 613. land that may be held by and disposed of, 60S. must be surveyed and subdivided into lots, 608. lot owners previous to purchase to be members, 614. lot, sale of after disinterment, 613. lots, rights and interests in, 613. lots, surveying, etc., 608. may hold personal property and to what amount, 610. how disposed of, 610. may issue bonds to pay for grounds, 611. proceeds of, how disposed of, 611. may sell lands, when, 615. may take and hold property in trust, 616. application of income, 616. investment of proceeds of income in what, 616. purposes for which may hold, 616. may take and hold title to what and how, 612. members eligible to vote and hold office, 609. personal property, holding and disposing of, 610. property held In trust investment of proceeds, 616. proceeds to be used, how, 611, 616. sale of lands, conditions and rcslriftions, 60S. •^5 1089 INDEX. [References are to sections.] CEMETERY CORPORATIONS (continued). sale of lots, proceedings on, 615. who may not be buried in lot, 613. CERTIFICATE false, liability of officers. 316. fee of recorder for recording, 1165. mortgage-participation, made lawful investment for trust funds, etc., 453ff. of autliority required by mortgage insurance company, 453cc. of corporate existence, extending by, 401. of deposit, negotiable, 3095. non-negotiable, when, 3095, 3621. of discharge of mortgage, 2939. of indenture of apprenticeship, 275. of incorporation, secretary of state to issue, 296. of marriage, 69a, 73, 79. of master of ship in favor of seamen, 2059. of partnership. See tit. Partnersbip, General. of partnership under fictitious name, 2466-2477. of residence of corporation, when to be filed, 1163. of restoration of lunatic, evidence of legal capacity , 40. of savings and loan, 576. of stock. See tit. Cnrporatlou. to seamen of efforts to save cargo, etc., 2059. CERTIFICATE OF ACKXOAVI.EDGMEXT. See tit. AvkiwnAl- edsiiient. form of eertilicate of aoknowltdgmont. See tit. Acku«c\vledg- uient. CERTIFICATE OF DEPOSIT as to generally, 326S. CERTIFICATE OF MARRIAGE. See tit. Marriage. CERTIFICATE OF SHERIFF'S SALE. See tit. Sheriff's Certifi- cate of Sale. CERTIFICATE OF STOCK afflda.vit or bond required before, wlien, 326. how issued, 323. how^ transferred, 324. irrigation stock appurtenant to land, 324. lost, etc., certificate, procedure for securing new, 32S. married woman may transfer, 325. shares of personal property, 324. CERTIFIED COPY of recorded instrument may be recorded, 121S. 1090 INDEX. [References are to sections.] CHA.TIBER OF COMMERCIC, BOARDS OF TRADE, MECHANICS' lAfSTITUTES, ETC. as to, generally, 591-592e. assessments, power to levy and collect, 592d. business of, 591. by-laws of, 592c. capital stock and certificates of, 592. rights and privileges of stockholders, 592. executive committee, powers which may be conferred on, 592a. formation of, 591. meetings of, how called and conducted, 592c. organization of, 591. pfiwer which may be conferred on tlie trustees, etc., 592a. powers of, 591. to acquire, sell, and use property, 592b. to levy and collect assessments, 592d. pre-existing corporation may have benefit of title, 592e. certificate, execution, and contents of, 592e. notice of meeting and object to be published, 592e. rights and privileges of stockholders, 592. trustees, powers which may be conferred upon, 592a. CHANCERY COURTS. See tits. Equity; Speoific Rfli:>f. CHANGE OF NAME. See tit. Corporations. conveyance of real estate on, how made, 109G. CHARGE. See tit. Privileged Coniinuiiicsition. CHARITABLE BEQUESTS. See tit. Wills. CHARITABLE USES AND BEQUESTS limitation as to time and amount, 1313. CHARITABLE USES AND TRUSTS. See tits. Trusts; I ses ami Trust.s. CHARTER PARTY. See tit. Ships and SliIppiiiK. definition of, 1959. insurable interest, 2665. shipmaster may enter into, 2376. ship's manager may enter into, 2.'?SS. CHASTITY want of, avoids promise o{ marriage, 62. CHATTEL INTERESTS what are, 765. CHATTELS, REAL estate for life of third persnn is not, 766. what are, 7 65. 1091 INDEX. LRefeiences are to sections.] CHECKS. See tit. ]Vesole In.struiueuts. time for presentment, rules applicable to checks, 3255. CHILD. See tit. Parent and Child. enventre sa mere, 29, 698. property of, parents control over, 202. allowance out of for maintenance, 201. takes under will, when, 1339. to maintain parent, ^'hen, 206. unborn. See tit. ITnborn Child. who may be arrested and committed to asylums, etc., GOlg.' CHILDREN. See tits. Parent and Child: Succession; Wills. custody of in actions for divorce, 138. legitimacy of, born in wedlock, 193. posthumous, 698. societies for the prevention of cruelty to. See tit. Societies for the Prevention of Cruelty to Children and Animals. unprovided for by will to succeed, when, 1307. CHILDREN OF ANNULLED MARRIAGE. See tit. Divorce. CHOSES IN ACTION. See tit. Personal Property. definition of, 953. judgment is, 954. survivorship, 95 4. transfer of, 954. CHURCH. See tit. Religious Corporations. seat at, right to, 801, 802. . CHUTE. See tit. Bridges, Ferry, AVharf, Chute and Pier Cor- porations. • as to, 529, 530, 531. CIRCUS. See tits. Civil Rights: Places of Public Amusement. refusing admission to unlawful, when, 53. CITIZENS rights of in places of public accommodation or amusement, 51. CITY. See tits. Municipal Corporations; AVater Companies. water companies, contract with to furnish water, 54 8, 549. CITY LOTS. See tit. Leases of City Lots. lease of for over ninety-nine years void, 718. property of minor or incompetent, or municipality for ten years, only, 718. CIVIL CODE act establishing, 1. actions pending not affected by, 6. cited, how, 21. construed liberally, 4. continuation of statutes and common law by, 5. definition of terms, 14. 1092 INDEX. [References are to sections.] CIVIL, CODE (continued), divisions of, 1. does not affect pending actions, 6. Iiow cited, 21. not retroactive, 3. private statute, how affected by, 20. repeal of otlier statutes by, 20. retroat'tive effect of not as to wills, 1375. not generally, 3. rules of construction. See tit. Rules of Construetioii. takes effect, when, 2. terms defined, 14. title, 1. vested rights not affected by, 6. Civile LAW DOCTRINE ascending line, 1391. collateral line, 1390. degrees of, 1393. descending line, 1391. direct line, 1391. degrees of, 1392. CIVIL, RIGHTS discriminations prohibited, 52. of citizens in places of public accommodation or amusement, 51. CLAIM AlVD DELIVERY. See tit. Replevin. gold coin, judgment. See tit. Judgment. judgment for delivery, 3379. when holder may be compelled to deliver, 33S0. CLAIM NOT DUE no lien for, 2S82. CLAIMANT. See tit. Appropriation of Water. of waters, 1420. CLERK OF COUNTY acknowledgments, may take, 11 SI. articles of incorporation to be filed, with, 29G. certificate of special partnership to be filed with, 2479. duty of recording marriage licenses, 69. to keep register of partnership names, 2470. where acknowledgment taken before justice of the peace, 1194. may take acknowledgments, 1181. notice of dissolution of special partnership, filing with, 2509. 1093 INDEX. [References are to sections.] CLERK OF COUNTY (continued). petition to appraise homestead must be filed with, li'4' register of partnership names must be kept by, 2470. CODICIli execution of republislies will, when, 1287. included under term "will" 14. republication of, 1287. revocation of will revokes, 1305. COLLATKRAL SECURITY. See tit. Pledge. COLLATERAL WARRANTIES abolished, 1115. COLLECTION agent for, as to duties of, 2021. effect of warranty of collectibility, 2800. partner may make when acting in liquidation, 2462. COLLEGES AND SEMINARIES OF LEARNING appointing president, 650. appointing professors, 650. articles of incorporation, 649. contents of, 649. board of trustees, term, quorum and powers, 650. by-laws, making of, 650. consolidation of, 652. annual reports to, 652. new corporation, trustees term of, 652. what authorized to consolidate, 652. course of study, 650. election of other trustees, 650. existing corporations may reincorporate, 651. issue diplomas, 650. may take under wills, 1275. power of trustees, 650. president, election of by trustees, 650. quorum of trustees, 650. salaries, fixing of, 650. specific grants to, 653. cannot be diverted, 653. transfer of property from existing to new, 651. trustees of, and their powers, 650. to declare vacancy, 650. to fill vacancy, 650. to hold property, 650. to mortgage and lease property, 650. wills, may take under, 1275. 1094 INDEX. [References are to sections.] COLLISION loss by, apportioned, how, 973. of sliips. See tit. Rule.s of !Vuvlii;atiou. of vessels, from breacli of rules, 971. on breach of rules of navigation, liability, 972. implies wilful default, 972. rule for avoiding, 970. COLLOQUIUM. See tit. Libel. COLLUSION definition of, 114. in divorce. See tit. Divoroe. presumed from lapse of time, 125. COLOR. See tit. Trade-Mark.s. COMMISSION MERCHANT. See tit. Faotors. COM3ION interest in, what is, 6S5. what interests are in common, 686. COMMON CARRIERS in general. See tit. Coinmou Carrier.s iu General. of messages. See tit. Carrier.s of iiie.ssage.s; telegraiu.s; Tele- graph and Telephone Companies. of person. See tit. Common Carriers of Persons. of property. See tit. Common Carriers of Friiperty, COMMON CARRIERS IN GENERAL certain agreements void, 2175. compensation must be reasonable, 2173. definition of, 2168. loss of valuable letters, liability for, 2177. modification of liability of carrier by contract, 2176. assent of modification necessary, 2176. by acceptance of ticket, etc., 2176. not to give preferences, 2170. must give what preferences, 2171. obligations of, altered by agreement, 2174. obligation to accept freight, 2169. starting promptly at time and place, 2172. COMMON CARRIERS OF PERSONS additional amount to be paid, when, 2189. baggage or luggage, how carried or delivered, 2183. bicycle as, 2181. carrier's lien on, 2191. bicycle as luggage or baggage, 2181. carrier of persons, obligation to carry, 2180. defined, 2181. 1095 INDEX. [References are to sections.] COMMON CARRIERS OF PERSONS (continued). ejectment of passengers. See tit. Ejection of Passengerrt. for refusal to pay fare, 2188. fare, when payable. See tit. Fare, as to when payable, 2187. not payable after ejection, 2190. liability for baggage or luggage, 2182. obligation to carry baggage or luggage. See tit. Baggage. as to generally, 2180. obligation to provide seats for passengers, 2183. obligation to provide vehicles. See tit. Vehicles. as to, 2184. passenger who has not paid fare, to pay additional rate, when, 2189. regulations for conduct of business as to, 2186. seats for passengers to be provided, 2185. COMMOIV CARRIERS OF PROPERTY liability of inland carriers, 2194. exemptions do not apply to, when, 219.5. liability for delay, 2196. COMMON L,AW code continuation of, 5. COMMON PROPERTY. See tits. Hii.sbaiul and Wife; Property, COMMUNITY PROPERTY as to generally, 164. as to what is, 687. contracts by wife in relation to, 167. disposition on divorce, 146. distribution of on death of husband, 1402. distribution of on death of wife, 1401. limitation of action as to, 164. management, control, and disposition of, 172. COMPENSATION for support of adult children by parent, 210. given by law, 3274. of appraisers of homestead, 1258. of assignee of creditors, 3471. of borrower, 1892. of depositary for hire, 1853. of employee dismissed for cause, 2002. of employee quitting for cause, 2003. of finder, 1867. of partner, none, 2413. of trustee, 2273, 2274. of voluntary depositary, 2078. 1096 INDEX. [Refexences are to sections.] COMPENSATION (continued). on partial failure to perform, 3392. on rescission, 3408. services continued beyond two years, rate of, 1980. without employment, 2079. COMPLAINT to court. See tit. Courts. for cruelty to children or animals, 00Tb. COMPLETION as applied to appropriation of waters, 1417. COMPO.SITION author has property in, 980-985. COMPRESSED AIR ds motive power by railroads, 465a. CONCEALMENT. See tit. Insurance. CONCESSIONS foreign corporations may transfer, 364. CONDITIONAL delivery cannot be made to be, 1056. devise or bequest. See tit. Devise and Boquesf. obligation. See tit. Obligations. offer of, when valid, 1494. will may be probated, when, 1281. CONDITION OF WILL. See tit. Wills. CONDITIONAL OBLIGATION. See tit. Oblii^atious. CONDITIONS concurrent detinition of, 1437; performance of, 1439, 1498. forfeiture, considered how, 1442. impossible, are void, 1441. kinds of, 1435. performance of essential, when, 1439. precedent or subsequent. See tits. Conditions Precedent; Con- ditions Subsequent. as to generally, 708. restraining alienation, void, 711. restraining marriage, void, 710. subsequent. See tit. Conditions Subsequent. unlawful are void, 1441. CONDITIONS PRECEDENT effect of, 1347. in will, 1347. what are, 708. when deemed performed, 1348. 1097 ) INDEX. [References are to sections.] C0J\DITI01\S SUBSEQUENT as to generally, 1438. conveyance on, 1109. in will, 1349. CONDONATION. See tit. Divorce. CONFIDENTIAL RELATIONS. See tits. Trust; Trustees; Wills. CONFLICT OF LAWS as affecting contracts, 1.556. as affecting personality, 946. as affecting realty, 75.5. as affecting wills, 1376. assignment for benefit of creditors, 3451. injunction, 3423. marriage out of state valid, when, 63. CONFUSION OF GOODS. See tit. Aeoessioii. as to ownership of things made by, 1025-1033. CONGRESS carriers bj^ sea governed by laws of, 2088. seamen governed by laws of, 2088. CONNIVANCE in divorce. See tit. Divorce. CONSANGUINITY collateral and direct, 1390; 1392. half-blood, inheritance by, 1394. how computed, 1388-1394. CONSENT apparent consent, when not free, 1567. communication of. See tit. Contract. as to generally, 1581. deed obtained by fraud, when, 1568. essentials of, 1565. fraud in obtaining. See tit. Fraufl. mutually necessary to contract, l."iSO. when voidable, 1566. CONSIDERATION. See tits. Contract; Valuable Consideration. agency. 2308. as to what constitutes, 1605. burden of proof to invalidate, 1615. executed and executory, 1609. executory, 1610, 1611. failure of, rescission for, 1682. for agreement of separation between hu.sband and wife, 160 good, what is, 1605. guaranty, consideration for, 2792. 1098 INDEX. [References are to sections.] CONSIDERATION (continued). illegal consideration void, 1608. impossibility of ascertaining, effect of, 1612. in contract between spouses for separation, 160. lawful only is valid, 1607. negotiable instrument must have, 3122. presumption as to, 3122. new, contract altered without, effect, 1697. proportion payable where performance prevented, 1515. return by mino;r, as disaffirmance, 35. rewards offered. See tit. Rewartls. subscription. See tit. Proiio.sal. written instrument pre.sumert to have, 1614. COXSIGXMEXT definition of, 2110. directions of, to carrier, 2115. definition of consignee, 2110. delivery of, 2118-2122. freightagt^. See tit. Freightage. insolvency of consignee, effect of, 3077. specail contract of carrier. See tit. Coiuiiiou Carriers of Property. stoppage in transitu. Sec tit. Stoppage in Traii.sitii. COXSOLIDATIOX of co-operation business associations, 653i. of co-operative corporations with other corporations, G53x. CONSTITI'TIOIVAL LAW Statute creating homestead rigiit constitutional, 1269. CONSTRUCTION of deed. See tit. Interpretation. of devise of land, 1311. of words and phrases. 13. CONSTRUCTIVE DELIVERY what is, 1059. CONSTRUCTIVE NOTICE. See tits. Notiee; itecordiug Trans- fers. , conveyance, filing witli the recorder is, 1213. CONSTRUCTIVE TRUSTS. See tit. I ses and Tru.sls. CONSTRUED joint authority, how, 12. CONSUIi of United States may take foreign acknowledgments, 1183. 1099 INDEX. [References are to sections.] CONTEMPT in divorce proceedings. See tit. Uivoroe. officer taking acknowledgment may punisli for, 1201. CONTINGENT ESTATES. See tit. Future Contingent Estates. CONTINGENT INTEREST as to what constitutes, 695. not void because improbable, 697. CONTINGENT REMAINDER IN FEE as to, 772. liow eweated, 773. on term of years, 776. CONTINUANCE of corporate existence, 2S7, 401. CONTINUING GUARANTY. See tit. Guaranty. CONTRACT acceptance by performance of conditions, 1584. reward, offer of. See tit. Re-trard. deemed complete, w^hen, 1582. mode of communicating, 1582. must be absolute, 1585. assumption of obligation by accepting benefits, effect of, 1589. as to who may contract, 1556. idiots. See tits. Idiots; Persons of Unsound Mind. minors. See tit. Infants and Minors. as to power to enter into contracts, 155S. breach of, damages for, 3294. by husband and wife. See tit. Husband and Wife. consent, mutuality of, 1580. as to, generally, 15S0. consideration for. See tit. Consideration. as to generally, 1605. executed and executory consideration, 1609. how ascertained, 1611. illegal consideration, effect of, 160S. impossibility of ascertaining, effect of, 1612. invalidating sufficient consideration burden of proof, 1615. lawful consideration, 1607. legal or moral obligation as a good consideration, 1606. possibility of execution on face, 1613. presumptive evidence of consideration, when, 1614. contract for benefit of a third person may be enforced, when, 1559. contracts creating monopolies. See tit. Monopolies. 1100 INDEX. [References are to sections.] CONTRACT (continued). contracts in restraint of trade void, 1673. exception in favor of good will, 1674. corporate seals, how affixed, 1628. definition, 1549. duress. See tit. Duress. as to what constitutes, 1569. generally, 1569. effect of, nullity of, one alternative, 1451. essentials of as to generally, 1269, 1550. consent. See tit. Consent. executed and executory contracts, what are, 1609. express contract as to what is an, 1620. express or implied contracts, 1619. implied contract, what is, 1621. kinds of contracts. 1619. may be oral, when, 1622. must be in writing, when. See tit. Statute of Frauds. as to, generally, 1624. agreements authorizing and employing agent to sell real estate, 1624. extinction of contracts, 16S2. by alteration, 1700. alteration of verbal contracts, 1697. alteration and modification of written contracts, 1698. by cancellation, 1699. by performance, 1682. by rescission, 1688. how effected, 1691. when party may rescind, 1689. when stipulations against right to rescind d(j not defeat, 1690. by unauthorized alteration, 1700. alteration of duplicate not to pi-ejudice, 17(i]. fraud in procuring. See tit. Fraud. as to, 1571. identification of parties to contract essential, 155S. interpretation of contracts. See tit. Interpretation. as to, generally, 1635-1661. In the alternative, 1448, 1450. in writing, effect of, 1625. takes effect, when, 1626. joint and several, 1659. lender cannot modify, 1905. 1101 INDEX. [References are to sections.] CONTRACT (continued). lien may be created by, 2884. manner of creating, 1619-1623. contract In writing takes effect, when, 1626. effect of written contract, 1625. menace. See tit. Menace. as to what constitutes, 1579. mistake. See tits. Fraud ami Mistake; Mistake. as to what constitutes, 1576. mode of eoniinuuioatiug; acceptance of proposal. as to generally, 1582. when communication deemed complete, 1583. mutuality of consent, 1580. not in through fraud, enforceability, 1623. object of contract, 1595. as to requisites of object, 1596. as to what is, 1596. contract partially void, when, 1599. contract wholly void, when, 1598. impossibility of contract, what is, 1597. of exchange, form of, 1804. of minors. See tit. Minor. of persons without understanding, 38. partly written and partly printed, 165. private seals, act abolishing applicable, 1629. provisions of code in respect to real property; 1627. ratification of. See tit. Ratifieatiou. as to validity, 1588. revocation of proposal. See tit. Revocation. as to, generally, 1586. how made, 1587. time of performance of, 1657. to relieve directors from liability void, when, 327. transfer of waives vendor's lien^ when, 3047. undue influence. See tit. ITndue Influence. as t.o what constitutes, 1575. unlawful contracts. See tit. Unlawful Contracts. wagering. See tit. Uuiavrful Contracts. what is a contract, 1549. who may contract, 155 6. CONTRACT FOR SERVICE limited to two years, 1980. CONTRIBUTION between persons bound jointly or jointly and severally, general average loss, in admiralty, 2152. 1102 INDEX. [References are to sections.] CONTRIBUTION (continued). iii»«urance cases iu as to generally, 2621, 2622, 2642, 274.5. where there is over-insurance, 2620. release of one joint debtor, effect on right to, 1.548. surety's right to, 2S48. CONTRIBUTION. See tit. SHrelysliip. between joint obligors, 1432. general average loss, 2152. insurance cases, 2621, 2646. release of joint debtor^ effect on right to, 1543. CONTROM.ER OF STATE duty, where property eschea,ts, 1406. selection of right of way to be transmitted to, 478. CONVERSION claim and delivery. See tit. Claim and nelivery. damages for, 3336-3338. equitable, 1338. extinguishes lien, 2910. in general, 1711-1714. lien extinguished by, 2910. CONVEYANCE. See tits. Deeds; Transfers. absolute not to be conditional, 1056. agent may covenant on, 2324. agreement for covenants, 1733, 1734. effects of, 1731. specific performance of. 1741. statute of frauds as affecting, 1741. bona fide purchaser or encumbrancer, who is, 1107. by attorney in factj 1095. cancelation of instruments in, 3412, 3414. certificate of proof of execution of, 1198. changed name, by person with, 1096. community property, wife's consent to, 172. conclusiveness of, and parties bound, 1107. conditions precedent in, 1110. conditions subsequent in, 1109. constructive delivery, 1059. covenants agreement to give, 1733. by agents, how far binding, 2324. form of, 1734. implied, 1113. running with land, 1460-1468. who bound by, 1465. 1103 INDEX. [References are to sections.] CONVEYANCE (continued). dainaii^es for breach of agreement to buy, 3307. for breach of agreement to convey, 3306. for breach of covenants, 3304. against encumbrances, 3305. date of delivery, presumption as to.. 1D55. deemed mortgage, though absolute in form, when, 2924. definition of, 1215. delivery constructive, 1059. date of, presumption as to, 1055. in escrow, 1057. must be absolute, 1056. necessity for, 1054. easement, passes with, 1104. escrow delivery of deed in, 1057. executed before code, how, 1205, 1206. execution of not acknowledged, how proved, 1195. fee passes by presumption, 1105. word of inheritance unnecessary to, 1072. form of, 1092. fraudulent. See tit. Fraiidiiient Transfers. grant, includes what, 1053. heir's conveyance good, wlien, 1364. "lieirs" and "issues," interpretation of in, 1071. heretofore made governed by then exi'sting laws, 1206. recordation of governed by then existing laws. 1206. highway, boundary by, passes to, 1112. homestead, conveyed how, 1242. incidents of thing transferred follow to, 10S4. infants conveyance. See tit. Minor. inheritance, words of in, not necessary, 1072. interest subsequently acquired passes to purchaser, 11 OK. interpretntiou against grantor most strongly, 1069. in general, 1066. of "heirs" and "issue," 1071. irreconcilable provisions in, 1070. of limitations, 1067. recitals construed, when, 1068. irreconcilable provisions in, interpretation of, 1070. "issue" and "heirs," interpretation of, 1071. judgment proving execution of instrument, 1203. 1104 INDEX. [References are to sections.] CONVEYANCE (continued). lien of vendee, 3051. of vendor, 3036-3049. limitation in, as to, 1067. married woman's. See tit. Married \Aoineu. mortgage, absolute deed transfer deemed a, when, 2924. name changed, by person with, 1096. operation of law after-acquired title passes by, 1106. convej'ance by, 1091. owner for life, conveyance by, 1108. owner for years, conveyance by, 1108. power of attorney to, 1094. proof of execution, certificate of, 1200. proof on action for, and effect, 1204. recitals in, resorted to, when, 1068. reconveyance, surrendering or canceling instrument not a, 1058. record as notice. See tits. Constructive Notice; Notice. recording. See tit. RecordinR. remainders, conveyance of, 1111. rents, conveyance of, 1111. requisites of, 1091. reserving power to revoke, effect of, 1229. statute of frauds, effect of on, 1091, 1624. stranger, inures to, when, 1085. subscribing witness, proof of by, 1195, 1197. title, what passes under, 1083. unrecorded valid between parties, 1216. void as to whom, 1214. warranty covenants for, 1463. liability for, 1115. lineal and collateral, abolished. 1115. what law governs, 1205, 1206. will, effect of on, 1302, 1304. words of inheritance not necessary in, 1072. rO-OPERATIOlV of co-operative agricultural, etc.. associations with other cor- porations, 653q. CO-OPER.\TIVE AGRICULTLRAI.. ETC., ASSOCr .VTIONS agents, appointment of, 653q. 1105 INDEX. [References are to sections.] CO-OPERATIVE AGRICULTURAL, ETC., ASSOCIATIONS (con- tinued). :i III f II (line lit of articles of incfirporatiou as to generally, 653a. debts at time of, 653r. articles of incorporation amendment of, 653r. debts at time of, 653r. what to contain, 6.53o. b>-la^'».s as to what to contain, 653p. conditions of membership. 653p. membership fee, 653p. number of directors, 653p. proxies, 653p. qualifications of members. 653p. removal of directors, 653p. ^ code of by-laws. See By-Laws, this title. as to, what to contain, 653p. cpnditions of membership, fi53p. co-operation with other corporations, 653q. debts at time of amendment of articles of incorporation, 653r. directors number of, 653p. removal of, 653p. dissolution of, 653q. fee, membership, 653p. formation of. 6.?3m. iiieiiibership of as to generally, 653m. conditions of, 653p. fee, 653p. qualifications of, 653p. transfer of, 653n. number of directors, 653p. po^vers of association as to generally, 653m, G53q. dissolution, 653q. to appoint agents, 653q. to co-operate with other corporations, 653q. to purchase property, 653q. proxies, 653p. purchase of property by, 653p. transfer of membership of, 653n. 1106 INDEX. [References are to sections.] CO-OPERATIVE BUSIXESS ASSOCIATIONS. See tit. Co-Oper- ative Business Corporations. alteration of purpose of association, 653g. articles of association, 653d. acknowledgment of, 653d. filing of, 653d. subscription and acknowledgmtnt of, 653d. by-laws, 653e. division of profits, 653e. expulsion, 653e. fees for membership, dues, etc., 653e. majority of association necessa.ry to adopt, 653e. calling meetings of, 653ha. manner of conducting elections, 653e. method of calling meetings of, 653ha. qualification and succession, 653e. recording and filing by-laws, 653e. what by-laws may provide, 653e. withdrawal, ascertainment of interest, 653e. certificate of membership, 653b. consolidation of association, 6531. fee for filing, 653i. filing of agreement, 6531. what agreement must state, 6531. dissolution and winding up of association, 6531. execution against the association or its members, 65of. formation and purpose of, 653b. interest of members, 653c. members, liability of, 653c. who are eligible as members, 653c. powers of the association, 653h. profits of, division of, 653e. purpose of association, how altered, 653g. purposes of, altered how, 653g. quo warranto to inquiry i'nto riglits to do business, 653k. rights, interest, and liability of members, 653c. succession, 653h. transfer of, 653b. what corporations not affected by title. 6531. winding up of association, 653j. CO-OPERATIVE BUSINESS CORPORATIONS. See tit. Co- operative Business Ass<'fiations. purpose for which may be formed, 653a. 1107 INDEX. [References are to sections.] CO-Ol'KUATIVE COKPORATIOIVS as to how formed, 653t. agents, appointment of, 653x. artleleH of iuoorixtratiou amendment of, 65.3y. what to contain, 653v. by-lav»'s of as to, what to contain, 653w. expulsion of members, 653w. liow adopted, 653w. ineinbership fee, 653w. to cease when, 653w. removal of directors and filling vacancies, 653vv. qualification of members, 653w. consolidati'on with other corporations^ 653x. dissolution of, 653x. membership of as to generally, 653n. conditions and terms of, 653w. fee of, 653w. number of and qualifications of, 653w. transfer of, 653u, 653w. particular corporations, title not applicable to, 653za. powers of as to generally, 653x. to consolidate with other corporations, 653x. dissolution, 653x. to hold property, 653x. to appoint agents, 653x. property, holding of, 653x. qualifications of members, 653w. quo warranto, as to, 653z. voting by as to generally, 653zb. number of votes required, 653zb. CO-OWjVERS. See tits. Mines; Mining ClainiN. delinquent notice to, 1426o. payment by, 1426o. CORPORATE POWERS as to generally, 354. banking prohibited, 356. by-laws of. See tit. By-l-aw-s. limitation of, 355. 1108 INDEX. [References are to sections.] COUl'OKATIi; SKAL. See tit. C'urituratioiiN. liow affixed, 162S. CORPOK ATE STOCK. See tit. StooklioltlerM. CORPORATION ]VA>IE. See tit. CorporatioiLs. CORPORATION SOLE, See tit. Religious, Social and Benevo- lent Corporations. CORPORATIONS. See tit. Corporate Powers. acknowledgment of articles of incorporation, 292. acts ultra vires. See tit. Ultra Vires. affidavit of corporations authorize to act as executors, etc., 290a. affidavit of subscription of stock and payment of per cent, 295. agricultural fair corporati'ons. See tit. Agricultural Fair Cor- porations. amendments of articles of incorporation. See tit. Articles o( Incorporation. amount to be subscribed to be fixed^ 293. a "person," 14. articles of incorporation. See tit. Articles of Incorporation. as.sessnients action to recover, 349. directors may levy, when, and for what, 331. jurisdiction acquired by publication of notice, 340. limitation of, 332. not invalidated, by what irregularities, 346. not to be levied upon stock in treasury, 343. not to be levied when previous unpaid, when, 333. notice of contents of, 338. delinquent, 337. form of, 337. publication, 339. service and piiblication of, 336. order for must contain, what, 334. proceedings to be begun anew, when, 346. sale of stock for payment of, 334-349. banking. See tit. Banking Corporations. banking expressly prohibited, 356. Ijeneflt society. See tit. Religious, Social and Benevolent Cor- porations. benevolent corporations. See tit. Religious, Social and Be- nevolent Corporations. Ijequests to, restriction on power to make, 1313. board of directors. See tit. Directors, Board of. 1109 INDEX. [References are to sections.] CORPORATIONS (continued). board of trade. See tit. Chsimliers of t'oiniiiorfe, Boardx ot Trade. bonded indebtedness, 359. creating and increasing, proceedings for, 3.')9. bonds, restrictions upon issue of, 359. books of stock and transfer, how kept, 378. of directors and stockholders open for inspection, 321. books to be open to inspection, 321. bridge, ferries, wharf, chute, and pier. See tit. Bridges, Ferry, Wharf, Chute, and Pier C'oryoration.s. Iniilding and loan. See tit. Building: and L.oan Associations; Building- and Land Corporations. formation of, 64Sa. reincorporation of existing, 64Sa. building corporations. See tit. Building Corporations. burned bonds of, procedure to obtain duplicates, 329. business associations. See tit. Co-operative Business A.sso^ eiations. business corporations. See tit. Co-operative Business Cor- porations. by-laws. See tit. By-Laivs. capital stock amount of, to be set forth by articles, 290. increasing and diminishing, proceedings for, 359. restrictions on, 309. withdrawal, restrictions on, 309. capital stock of banking companies, 300. dividends of, 300. cemetery. See tit. Cemetery Corporations. certain corporations to state further facts, 291. certificate not to issue, when, 296. certificate of. See tit. Certificate of Stoelc. certificate of Incorporation, Secretary of State to issue, 296. certificate of residence to be filed, when, 1163. certificate of stock. See tit. Certificate of Stocli. restoring lost. See tit. Restoration of IjOst Records. chamber of commerce, etc., corporations. See tit. Clianiber of Couinierce, Boards of Trade, etc. copy of decree to be filed with secretary of state, 300a. filing decree of court, 300a. how perfected, 300a. change of place of business, procedure on, 321a. changing number of directors, 361. 1110 INDEX. [References are to sections.] CORPORATIONS (continued). cliute. See tit. Bridges, Ferry, AA'liarf, Chute aud Pier Cor- porations. classes of. See "Kinds of," tliis title. collateral attack, 358. colleges and seminaries. See tit. Collese.s and Seminaries of Learning;, consolidation of adjoining mine companies, 361. of co-operative business associations, 653i. of societies, 652, 653. complaint against, 315. noti'ce of filing petition, 315. consolidation of adjoining mining companies, 361. continuance in business, 358. contract to relieve directors from liability void, when, 327. co-operative business corporations and associations. See tit. Co-operative Corporations and Associations. copy of articles must be filed, where, 299[a]. corporate meetings, waiver of notice of, 320a. corporations to discover fires and save human life. See tit. Fire Corporations. corporations to furnish light for public use. See tit. Corpora- tions to Furnish Light and Heat. costs of suit for duplicate of lost certificate of stock, 328. cruelty. See tit. .Societies for the Prevention of Cruelty to Children and Animals. curing defects in articles, cannot be by amendment, 362. damages for failure to file copy of articles as requi'red, 2r)n[a]. for false entries, 316. recovery of by purchaser of franchise at execution sale, 391. debts beyond capital stock, liability for, 309. definition of, 283. delinquent assessment, sale of stock of unknown owner for, 365. devise to, restrictions of povver to make, 1313. directors are trustees of creditors and stockholders, 100. changing number of, 361. contracts relieving from liability void, 327. financial statement to be made to stockholders, when, 302a. inhibitions on, 309. majority a quorum, 308. 1111 INDEX. [References are to sections.] CORPORATIONS (continued). directors (continued). majority must be citizens of state, 305. must perform duties, 30S. number of, 290, 305. clianging, 361. organization of board of, 308. personal liability of, 309. limitation of actions on, 309. removal from office, proceeding for, 310. vacancies, how filled, 305. who may be, 305. election of. See "Elections," this title, notice of election of, 302. of new on removal of old, 310. time of, 302. dissolution of, 399-403. by amendment of law, 404. judgment cannot be rendered against after, 404. dividends to be declared from surplus, 309. distribution of land and water, 309. penalty for violation of section, 309. dock, 528-531. elections. See "directors," this title. adjournment of, 314. by-laws may prescribe rules for, 303. complaints respecting, and proceedings, 315. cumulative voting at, 307. eligibility of voters, 312. lunatic's stock, how represented at, 313. may be postponed, 314. minor's stock, how represented at, 313. not held at appointed time, procedure, 315. votes avoided, how, 312. who may vote, 312. electric, 632. examination of afliairs. See tit. Examination of Corporations. examination of books of. See tit. Mining Corporations, execution sale corporation retains power, 391. purchaser at may recover penalties, 390. purchaser at to transact business of, 389. where to be held, 393. execution of articles of incorporation, 292. existence of corporation not affected by code, 288. 1112 INDEX. [References are to sections.] CORPORATIONS (continued). existence of, how continued under code, 2S7. extension and dissolution of, 399-403. false certificate of stock, 316. false entries, 316. fee of recorder for recording, 1163. ferry, 528-531. filing of articles of incorporation, erroneous, corrected how, 363[a]. fire, corporations to discover, etc. See tit. Fire CorporatiouN. fire, marine and title insurance corporations. See tit. lu- 8uranee Corporation.^. foreign corporations. See tit. Foreig-n Corporations, formefl complete, when, 296. for any purpose, 286. how, 285. frani-iilNe for constructing road for bicycles and horseless vehicles, etc., 524. of, may be sold under execution, 388-393. redemption of from execution sale, 494. fraternal. See tit. ReUgiou.s, Sooial and Uenevolent Corpora- tions. societies exempt from insurance laws, 453k-453p. friendly societies, limitation of amount of land that may be held by, 596. gas. See tit. Corporations to i<''nrnisli Light aurt Heat. liomestead corporations. See tit. Home.steads. good will. See tit. Good Will. increasing and diminishing capital stock, metliods of, 359. consent and no di'ssent, 359. consolidation of corporations, 359. infant's stock, how represented at elections, 313. inspection, books to be open to, 321. insurance corporations. See tit. Insiiranee Corporations. irrigation. See tit. AVater and Canal Corporations. as to, 552. journal of proceedings, how to be kept, 377. justice of the peace may order meeting of, when, 311. Ivinds of as to generally, 284. public and private, 284. land and buildiing corporations. See tit. Land and Building Corporations. 1113 INDEX. [References are to sections.] CORPORATIONS (continued). legislature may amend corporate law, 404. life, health, accident and annuity insurance corporations. See tit. Insurance Corporations, limitation of actions in favor of foreign corporations, 406. to enforce directors personal liability, 309. to recover stock sold for delinquent assessments, 3 47. limitation of powers of, 355. lost or destroyed certificate of stock. See tit. Certificate of Stuck. lunati'c's stock, how represented at elections, 313. majority of stockholders must be represented at elections, 312. married T^'oman dividends may be paid to, 325. transfer of stock by, 3 25. may acquire real property, and how much, 3C0. may transfer foreign concessions, 364. mechanic's institutes, etc. See tit. Chambers of Commerce, etc. meeting; adjournment of, 312. application to justice of peace to call, 311. by consent valid, 317. by-laws may provide for, 303. justice of peace may call, wMien, 311. special, when and how called, 320. waiver of notice of, 320a. where to be held, 319. minimum capital to be required to be paid in before organi- zation, 290a. mining corporations. See tit. Mining Corporations. misnomer in instrument does not invalidate contract, 357. mortgage insurance corporations. See tit. Mortgage Insur- ance. mutual benefit and life associations. See tit. Insurance Cor- porations. mutual life, health, and accident insurance corporations. Set tit. Insurance Corporations. name of instrument creating corporations, 28^. no provision in by-laws, regular and special meetings, how called, 320. nonprofit co-operative agricultural, etc., associations. See tit. Co-operative. Agricultural, etc., Associations. 1114 INDEX. [References are to sections.] CORPORATIONS (continued). non-resident, transfer of stock by, 326. notice false, liability of officers for^ 31fi. of hearing of application for restoration of lost records, certificate, etc., 365. to be published in what newspapers, 303. notice of as.sessinent contents of, 33S. delinquent, 337. form of, 335. publication of, 339. service of, 336. notice of directors and stockholders meeting, 320. notice of electi'on of directors, 302. notice of meeting; to create or increase bonded indebtedness, 359. to increase or diminish capital stock, 359. to remove directors, 310. notice of proposed change of principal place of business, 321a. notice of sale of stock to pay assessment, how publication of proved, 348. number of directors may be increased or diminished, 290. oath of officer to subscribe to stock and payment of ten per cent, 295. officers. See tit. Officers of Corporations. false certificates, notices, or reports by, 316. other than for profit, 312[a]. penalties, recovery of by purchaser of franchise at execution sale, 390. pier. See tit. Bridjsrcs, Ferry, Wliarf, Clmte, and I'ier Cor- poration. pioneer, amount of land to be held by, 596. place of business, proceedings for change of, 321a. postponement of election, 314. powers of. See tit. Coriiorate Po^vers. powers of and business exercised by board of directors, 305. prerequisite to filing articles of incorporation for profit. 294. prerequisites to filing articles, 293. private corporations, how formed, 285. private corporations may be organi'zed, 286. proceedings, at meetings, 318. profit, associations formed for purposes other tlian, 593-605. public and private distinguished, 284. 1115 INDEX. lliefcrences are to sections.] CORPORATIONS (continued). publication of notice, i'n what newspapers, 303. purposes for which may be formed, 286. quorum of board, 305. of stockholders, by-laws maj- provide for, 303. quo warranto, against, 358. quo warranto, proceedings thereon regarding elections, 315. railroads. See tit. Railroad Corporation.**. real property. See tits. Buihliu^- and I>oau t'orporatiouH; Cemetery Corporations, etc. amount corporations may acquire and hold, 360. ' how acquired, 360. records restoration of lost. See tit. Restoration of Lost Records. stock and transfer books, how kept, 378. to be open for inspection, 377, 378. what to be kept, 377. records of. See tit. Articles of Corporation. recovery of stock sold for delinquent assessments, 349. redemption of franchise from execution sale, 392. of stock sold for delinquent assessments, 347. regular meetings, how called where no provision in by-laws, 320. religious corporations. See tit. Religious, Social, and Benevo- lent Corporations. removal from office of directors. See tit. Directors, Board ot. reports, false, liability of officers for, 316. representation of stock, 313. resemblance in name, 296. restoration of lost records, certificates of stock, etc. as to generally, 365. jurisdiction of court judgment and decree, 365. notice of hearrng. publication of, 365. proof required of publication and service of,' 365. service of, 365. of lost original articles of incorporation, 297a. petition filed with court for, 365. unknown ow-ners, sale of stock for delinquent assessments, 365. 1116 INDEX. [References are to sections.] CORPORATIONS (continued). sale of Htock to pay assessments, 348. action to recover stock, 347. corporation may buy in default of bidders, 343. disposition of stock bought, 344. extension of time for, 345. jurisdiction, liow acquired, 340. of unknown owners, 365. publication of notice, liow made, 34Sv to be by public auction, 341. to be to the highest bidder, 342. waiver of, and of suit to recover same, 349. savings and loan corporations. See tit. Savings and Loan Corporation.s. seal. See tit. Corporate Seal. seminari'es of learning. See tit. Collese.s and Seminaries ot Liearning. social corporations. See tit. Iteligioiis, Social and Benevo- lent Corporations. societies for prevention of cruelty to children and animals. See tit. Crneltj- to Children anil Animals. sole. See tit. Corporation Sole. special meetings, how called where no provision in by-laws, 320. special prt)visions apply, "when, 403[a]. legislature may amend corporate law, 404. statute under which organized may be repealed, 384. how represented, 313. stockholders. See tit. Corporate Stock. liability. See tit. Stockholders. meetings, who may vote at, 321b. maximum period of proxies, 321b. proxies void, when, 321b. revocability of proxies, 321b. who are, 298. street railroad corporations. See tit. Street Railroad Cor- porations. subscription of article.s of incorporation, 292. affidavit of, 295. to capital stock, amount requisite to filing articles, 293. surplus profits, what are, 310. 1117 INDEX. [References are to sections.] CORPORATIONS (continued). telegraph corporations. See tit. Telegraph and Telepboue Corporations. term of existence, 290. time within which must be organized, 358. title insurance. See tit. Title Insurance Corporations. to organize within a year, 358. transfer of franchise of corporation valid, when, 361a. transfer of shares by non-resident, how affected, 326. to give bond, 326. does not release stockholder, 322. of married women, 325. of water or irrigation companies, 324. to be entered on books, 324. to purchaser on sale for delinquent assessment, 343. unknown owners, sale of stock of for delinquent assess- ments, 365. vacancy in office of directors, how filled, 305. wagon road corporation. See tit. "Wagon Road Corporation. water and canal corporations. See tits. Irrigation Corpora- tions; AVater and Canal Corporations. wharf. See tit. Bridj:e, Ferr.f, \^'li:irf, Chnte and Pier Cor- porations. as to, 528, 531. when formation complete, 296. will, may take under, when, 1275. BErporatiuui«. i'lnpairing obligation of contracts, 405. of co-operative agricultural, etc., association, 653p. of co-operative corporations, 653x. DISSOLUTION OF iMARRIAGE. See tit. Divorce. effect of, 90. DISTRIBUTIOIV effect of advances on, 1395-1399. of capital stock on dissolution of corporation, 312[a]. of community property. See ti't. Ciuumiiuity Properiy. of property of Intestate, 1384, 1386. DITCHES, FLUMES, ETC. liability of joint owners respecting, 842. maintenance of flow of water in stream to canal intakes, 1410a. neglect to pay portion of expenses, action to recover, 843. DIVERSION. See tit. Aiiproiirintiun. point of from ditch, 1412. DIVIDEND. See lit. CorporatioiiM. of banking corporations, 300. of life insurance corporation, how made, 456. payment to married women, 325. DIVORCE. See tit. Marriage. acti'ons for divorce, when commenced, S3. plaintiff must be resident, 128. presumptions do not apply, 129. proof of actual residence required, 129. adultery, 92, 93. alimony. See tits. Alimony; Allo^-aiieo. allowance for support withheld, when, 142. annulment, 82-86. appeal, revision on of order di.sposi'ng of property, 148. by default not granted, 130. causes for, 8-2. ^ adultery, 92, 93. as to, generally, 92. desertion. See Desertion, this title. as to, generally, 95. extreme cruelty, 94. habitual intemperance for one >ear, luT. children. See tit. Parent and Cliilil. community and separate i>roperty subject to support of, 143. of annulled marriage, 84. 1135 INDEX. [References are to sections.] DIVORCE (continued). collusion, what constitutes, 114. presumption of from lapse of time, 125, 126. coinuiuuity property disposed of, how, 146. subject to support, etc., of children, 143. condonation, as a defense, l".^. avoided by concealment, 120. cures deserti'on, 102. defined, 115. implies what, 117. manifested, how, 96. presumption of from lapse of time, 125, 126. refusal of offer of is desertion, when, 100. requisite to, 116. revoked, how, 121. when can be made, 119. connivauce manifested, how, 113. presumed from lapse of time, 125, 126. cruelty desertion induced by, effect of, 98. extreme, what amounts to, 94. custody of children on, order for, 138. decree of by default not granted, 130. restores parties to unmarried state, 90. default decree by not granted, 130. of defendant, proofs to be made, 129. defense to action for. 111. denied on showing what, 111, 124. collusion, 114. condonation, 115. can only be made, when, 119. concealment of facts in certain cases makes void, 120. evidence of, 118. how revoked, 121. implies what, 116. requisites of, 116. when bar to defense, 123. connivance, 112. corrupt consent, 113. lapse of time establishes certain presumptions, 125. presumption may be rebutted, 136. 1136 INDEX. [References are to sections.] DIVORCE (continued). denied on showing- -what (continued). limitation of time, 127. recrimination, 122. denied on wliat grounds, 111. desertion absence becomes desertion, wlien, inn. consent to separation voidable, 101. cured, liow, 102. defined, 95. failure or refusal of wife to live in home of husV)and, 10.3, 104. how cured, 102. how manifested, 96. in case of cruelty where one party leaves the other, 98. in case of cruelty, is committed by whom^ 98. in case of fraud or stratagem, is committed by whom, 97. induced by cruelty, 98. induced by fraud or stratagem, 97. refusal of reconciliation amounts to, when, 101. refusal to abide by husband's selection of homestead amounts to, 103. selection of home is desertion, when, 103. if place is unfit, and wife refuses to conform, desertion by husband, 104. separation becomes, when, 100. by consent is not, 99. what amounts to, 9 6. who deserts, 98. disposition of community property. 116. duty of court to dispose of, 147. of homestead on, 146. order of disposition, 147. revisi'on of on appeal, 148. domicile fixed by husband, 103. refusal of wife to abide by is desertion, in."!. presumptions none, in proof of, 129. unfit, husband's selection amounts to desertion, 104. effect of divorce, 91. effect of judgment of nullity, 86.^ expense of action for, 13 7. extreme cruelty, 94. grounds for. See "cauees for," this title. 1137 INDEX. LRefei'ences are to sections.] DIVORCE (continuecl). grounds for denying, 111. habitual intemperance, what i.s, 106. for one year, 107. homestead, how disposed of on, 146. .iudgiueut of final judgment after one year, 132. interlocutory judgment, 131. lapse of time, what pre.sumptions establisli by, 12.5, 126. legitimacy of isHuc on divorce for husband's adultery, 14 5. on divorce for wife's adultery, 145. limitation of actions for, 125, 127. may be decreed where divorce denied, 136. orders respecting custody of children, 138. presumptions arising from lapse of time, 125. 126. resorted to in executing provisions for maintenance and alimony, 141. recriniinsttiou condonaton as, 123. defined, 122. relief where separation is denied, 136. residence actual, proof of necessary, 129. length of plaintiff's residence, 128. presumptions do not apply to, 129. none in proof of, 130. security for maintenance and alimony, 140. separation amounts to desertion, when, 100. not desertion, when, 99. support of wife and children on divorce or .separation granted wife, 139. wilful neglect, must exist for one year, 107. wilful neglect, what is, 105. DOGS. See tit. Animals. killing sheep, liability for, 3341. DOMICILE. See tit. Divorce. guardian to select, 248. husband may select, 103, 155. unfit, wife not bound by, 104. in divorce, actual must be proven, 129. requisites for, 128. infant's, 214. unfit selected by husband amounts to desertion, 104. 1138 INDEX. [References are to sections.] DOMIIVAIVT TENEMEIVT. See tit. Easements. DOI'BLE INSURANCE. See tit. Insurance. DOUBTFUIi AVORDS in contract, 1654. in will, 1323. DOAVER not allowed, 173. DRU-MvENNESS. See tits. Contracts; Divorce; AVills. as grounds for divorce, 107. damages for injuries inflicted in, 3347. liability to pay debts and maintain injured party, 3348. DUPLICATE of contract, alteration of does not prejudice, -1701. of will, is revocation, 1295. DURESS. See tit. Contract. as cause for annulment of marriage, 82. as to what constitutes, 1569. contract under voidable, 1575, 1708. in what consists, 1569. rescission because of, 1689. will procured or revoked by, 1272. DUTY. See tit. Obligations. to inquire into the treatment of minor apprentice, 270. EARNINGS of minor child, as to, generally, 169. illegitimate and unmarried, 200. legitimate and unmarried, 197. of wife, as to, generally, 168, 169. are her separate property, 169, 170. not liable for husband's debts, 168. when living separate and apart from husband, 169. EARNINGS OF AVIFE. See tit. Earnings. not liable for husband's debts, 168. when living- separate and apart from her husband. EASEMENT, See tits. Easements and Servitudes; L,icen.se. apportionment of, 807. as to what pass with property, 1104. attached to land, 801. dominant tenement action by owner of, 809. definition of, 809. enumeration for, 801, 802. extent of, 806. extinguishment, how made, 811. 1139 INDEX. [References are tu sections.] EASEMENT (continued). grantable, by whom, 804. held, can be, by whom, 805. irrigation,' 552. lateral and subjacent support, 832. not attached to land, 801. partition of, apportionment of, 807. servient tenement action by owner of, 810. as to what is, 803. transfer of property carries, 1104. way. See tit. Public High-wa.vs. what passes by conveyance of property, 1104. who cannot hold, 805. EASEMEXTS AjVD SERVITUDES action bj" owner and occupant of dominant tenement, 809. by owner of servient tenement, 810. apportioning easements, 807. dominant tenement, what is, 803. extent of servitude, 806. how extinguished, 811. owner of future estate, right as to easements, 808. servient tenement, what is, 803. servitude may be granted, by whom, 804. may be held, by whom, 805. » servitudes which attach to the land, 801. servitudes which do not attach to land, 802. EJECTION FOR NON-PAYMENT OF FARE. See tit. Ejection of Passengrers. as to, and when wrongful, 2188. EJECTION OF PASSENGERS. for non-payment of fare, 2188. for refusal to pay fare or surrender ticket, 487. ELECTION corporate. See tit. Corporation.s. day, a holiday, 7. grant to street railway near time of, unlawful, 497. notice of as to delivery of chattel, 1756. ELECTRIC CORPORATION franchise for, proceedings, 497. ELECTRICIT.Y railroad may use as motive power, 465a. ELEVATED RAILWAYS franchise for, how procured, 492. supervisors may grant franchise, 492. 1140 INDEX. [References are to sections.] RMANCIPATIOK of children, as to, 211. EMINKXT DOMAIN crossing's by railroads, condemnation for, 472. in general, 1001. EMPLOYEE. See tit. Master and Servant. by special request, 1976. for reward, duties of, 1978. gratuitous, as to duties of, 1975. under written power of attorney, 1977. KMPLOYMEXT.' See tits. Master and Servant; Service Without Employment. as to what is, 1965. confidential employment, obli'gations of, 1992. contract for services limited to two years, 1980. degree of skill required of employee, 198:?. duty of employee for his own benefit, 1979. for reward, 1978. to account, 1986. duty of gratuitous employee, 1975. duty of railroad compa.nies. See tit. Kallroads. employee must obey employer, 1981. must use what skill he has, 1984. not bound to deliver without demand, 1987. responsible for neglig-ence, 1990. to conform to usage, 1982. to give preference to employer, 1988. employer must indemnify employee, when, 1969. to indemnify for his own negligence, 1971. fellow-servant.^. See tit. Fell«»>v-Servants. particular employments ag-ent. See tit. Agent. factors. See tit. Factors. master and servant. See tit. Master and Servant. mates and seamen. See tit. Mates and Seamen. shipmasters. See tit. Shipmasters. ship's manager. See tit. Ship's Slanaser. surviving- employee, rights of, 1991. termination of eniploymt'nt as to how terminated, 1997. by death of employer, 1996. by employee, for fault, 2000. 1141 INDEX. [References are to sections.] EMPLOYMENT (continued). termination of eniployiiient (continued), by employer, for fault, 2001. compensation of employee dismissed for cause, 2002. of employee leaving for cause, 2003. continuance of service in certain cases, 1998. terminated at will, 1999. things acquired- by employee by virtue of his employment belong to his employer, 1985. ENCUMBRAJfCE damages for breach of covenant against, measure of, 3.305. grant, as revocation in favor of, when, 1229. how far conclusive, as to, 1107. imposed upon devised property, 1301. includes what, 1114. instrument when not void against, 1228. when void against, 1228. lien not valid against, when, 3048. mortgage of real property not enforced against subsequent purchaser, when, 3394. resulting trust does not prejudice, 856. rights of under devise not impaired by conveyance, 1364. transfers void against, 3440. ENEMY, PUBLIC. See tit. ^Var. cannot be insured against, 2540. carrier not liable for damages, etc., by, 2194. innkeeper, not liable for damages, etc., done by, 1859. prevention of performance by, effect, 1511. ENFORCEMENT OF TRUSTS. See tit. Use.s and Trust-s. ENTICING AAV AY APPRENTICE. See tit. Master and Appren- tice. liability therefor, 275. ENTIRETIES interest by the, 683, 686. tenancy by, between spouses, 161. EQUIPMENTS of ships. See tit. Ships and Shipping* EQUITABLE RELIEF. See tit. Specific Performance. EQUITABLE REMEDIES. See tit. Injunctions. EQUITY. See tit. Homesteads. ESCHEAT intestate's property does, when, 1386. proceedings by attorney-general, 1405. 1142 INDEX. [References are to sections.] ESCHEAT (continued). property escheated is subject to charges, 1407. takes place to state, wlien, 1406. ESCROAV as to delivery in, 1057. definition of, 1057. ESTATE. See tits. Estates in Real Property; Uses and Trusts. expectant, qualities of, 699. fixing- time of enjoyment, 707. interest in real estate, 701. classes of interest, 702. mere possibility of an interest, 700. notice not necessary before action, when, 793. of tenancy at will. See tit. Tenancy at AVill. of trustee to express trust, 863. re-entry, when and how to be made, 791. subsequently acquired passes by will, when, 1312. summary proceedings in certain cases, 792. termination of, as to, generally, 789. time of creation of, 749. what future interests are recognized, 703. E.STATE FOR LIFE limitation of successive, 774. ESTATE FOR LIFE OF THIRD PERSON when a freehold, 766. ESTATES IN REAL PROPERTY. See tit. Estates. estates in general, 761-781. kinds of estates, 761. estates at will, 761. estates for life, 761. estates for life of a third person, when a freehold, 766. estates for years, 761. estates in fee Simple. See tit. Fee Simple. as to generally, 762. estates in remainder. See tit. Remainders. estates of freehold, 766. estates of inheritance, 761. future estates, what are, 767. limitation on successive estates for life, 774. reversions. See tit. Reversions and Remainders. servitudes, 801-811. suspended ownership, 770. suspension by trust, 771. termination of estates, 789-793. 1143 INDEX. [References are to sections.] ESTATE OF DECEDENT. See tits. Exeeiiiors and Admlnif)- trators; Succession; Wills. beneficiaries, property liable for obligrations, ■when, 1.j77. chargeable with debts, ■when, 1359. order of resort to property for payment of, 1.359. E STRAY finder of property, as to duty of in general, 1864-1872. EVIDENCE. See tit. AVitne.sses. cer.fificate a.s of restoration of lunatic, presumption from as to capacity, 40. of shipmaster, to exertions of seamen to save vessel, 2058. certified copies of articles of incorporation as evidence, 297. condonation of, 118. divorce, not granted on uncorroborated, 130. in probate of -vvdll. See tit. "Wills. insurance, of loss, 2634. of condonation in action for divorce, 118. ho^vv revoked, 121. of execution of instruments not ackno^wledged, 1195. of handwriting, how proved, 57. of invalid or insufficient consideration, 1615. of marriage, how proved, 57. oral stipulations, etc., superseded by written instrument, 1624. record certified copies of, as evidence, 1207. inventory of wife's property as, 166. ' of location of mining claim copies of as evidence, 1426q. to be received in evidence, 1426q. register of partnership names, as, 2471. subscribing witness, how instrument proved, by, 1196-1199. EVIDENCE OF CONSENT. See tit. Marriage. EXAMINATION OF CORPORATION by whom to be made, 382. how made, 383. EXCAVATION time within which appropriator of waters may commence on public land, 1422. EXCHANGE bill of. See tits. Bill of Exchange; Deposit for Exchange; Loan for Exchange; Negotiable Instruments. form of contract, 1805. 1144 INDEX. [References are to sections.! EXCHANGE (continued). of money, 1807. rights and obligations of parties, 1806. what is, 1804. EXCHANGK, LOAX FOR. See tit. Loan for Exohange. EXCL.USIOIV AXD IXCLUSIOX. See tit. Coniitutation of Time. EXECUTIOIV against homestead. See tit. Homestead. co-operative association, against, 653f. disaffirmance of infant's contract, 35. executors and administrators. See tits. Estate of Decedent; Wills. exemption from of policy of life, etc., insurance, 4.53k. exemption of estates at law from, 766. franchise of corporation may be sold under, 388. homestead not subject to, when, 1240. subject to, when, 1241. lien of officers on, 3057. mortgaged personalty, issuing against, 2968-2971. of apprenticeship of minor. See tit. Master and Apprentiee. redemption of franchises from, 392. EXECUTOR AND ADMINISTRATOR. See tits. Estate of De- cedent; Will. according- to the tenor, 1371. expense of administration, order for payment of, 1359. foreign, satisfaction of mortgage by, 2941. not to act until qualified, 1373. power to appoint, void, when, 1372. power to appoint invalid, 1372. qualified, not to act until, 1373. wages of deceased seamen, 2062. EXECUTORY AGREI^MENT consideration for, 1610. ascertained, how, 1611. need not be stated, 1610. covenants w^hen required by, 1733. defined, 1661. for sale of real pi-operty, 1731. grounds on condition precedent, 1110. instrument, implied warranty of sale, 1774. of marriage to be in writing, when, 1624. transfers title, when, 1141. EXEMPL.VRV DAMAGES. See tit. Daniaj^es. for infringement of trade mark. See tit. 'i'rade .Marks and Sigrns. 1145 INDEX. [References are to sections.] JJXEMPTIOjV. See tit. A.ssigument for Benefit of Creditors. homestead. See tit. Homestead Exemption. mortgage, from operation of, 2965. of mutual life Insurance company, 453k. of policy of life, etc., insurance, 453k. property exempt does not pass by assignment for benefit of creditors, 3470. EXERCISE OF VESTED POWER as to, 860. EXISTENCE OF CHILD BEFORE BIRTH. See tit. Unborn Child. EXISTING LAWS provision similar to, how construed, 5. EXONERATION. See tits. Guardian and Ward; Securitjship. of carrier, on delivery of bill of lading, 2131. of finder, from liability, when, 1865. of gratuitous pledge-holder, 2995. of guarantors, 2819. of innkeepers, 1860. of lender, from liability, 1893. of owner, from claim of finder, 1868. of partner, on renunciation of future rights. of shipmaster, on abandonment of ship, 2040. of surety, 2824, 2845. EXPECTANCIES are Insurable Interests, 2549. EXPECTANT ESTATES quality of, 699. EXPENSES of action for divorce, 137. EXPERT TESTIMONY. See tit. Wills. EXTENSION OP TIME. See tit. Negotiable Instruments. for sale of delinquent stock, 345. notice of, 345. of existence of corporation, 401. EXTINCTION OF LIEN by conversion, 2910. EXTINCTION OF OBLIGATIONS ability and willingness essential to, 1495. application of general performance, 1479. by accord and satisfaction. See tit. Aeeor«l and Satisfaction. by acts of God. See tit. Acts of God. by conditional offer, not, 1494. by novation. See tit. Novation. 1146 INDEX. [References are to sections.] EXTINCTION OF OBLIGATIONS (continued), by offer made in good faith, 1493. by offer of partial performance, not, 1486. by offer of performance, 1485. requisites of valid tender. See tit. Tender. by part performance, when, 1524. by performance, 1473. effect of directions by creditors, 1476. partial performance, effect of, 1477. payment, what is, 1478. performance by one of joint creditors, 1475. performance by one of several joint debtors, 1474. by prevention of performance, 1511. by release. See tit. Release. by satisfaction. See tit. Accord and Satisfaction. by whom to be made, 1487. compensation after delay in performance, 1500. creditor's retention of thing which he refuses to accept, effect, of, 1505. custody of thing offered, 1503. effect of offer upon accessories of obligation, 1504. effect of preventing performance, 1512. condition precedent. See tit. Condition Precedent. effect of refusal to accept performance before offer, 1515. extinction of pecuniary obligations by deposit, 1500. objections to offer to be made, when, 1501. pecuniary obligations, extinction by deposit, 1500. performance of condition precedent. See tit. Condition Prece- dent. as to, 1498. prevention of performance. See tit. Prevention of Perform- ance. production of thing to be delivered not necessary, 1496. ratable portion of consideration not, when, 1514. ^ thing offered to be kept separate, 1497. title of thing offered, 1502. to whom to be made, 1488. when debtor induced not to make it by act of creditor, 1511. when and where offer to be made, 1489, 1490. when prevented or delayed by act of creditor, 1511. when prevented or delayed by irresistible, etc. cause, 1511. where obligation does not fix time, 1491. written receipts may be rquird on, 1499. EXTINGUISHMENT of easements and servitudes, 811. 1147 INDEX. [References are to sections.] EXTREME CRUELTY'. See tit. Divorce. what is, 94. FACT actual fraud is a question of, 1574. concealment of makes condonation void, when, 120. fraudulent intent, is a question of, 3442. mistake as to, what is, 1577. as to foreign law, 1579. FACTORS. See tits. Agent; Employment; Master and .Servant. actual authority of, 2368. barter by, 2368. consignments to. See tit. Consignment. credit by, 2028. power to sell on, 2368. definition, 2026, 2367. deleg'ation of authority by, 2368. guaranty by, 2794. guaranty commission, liability, 2029. insurance by, 2368. liability of under guaranty commission, 2029. cannot relieve himself of liability, 2030. lien of, 3053. mortgage by, 2368. must obey orders, 2027. obedience required from, 2027. ostensible authority of, 2369. pledge cannot be made by, 2368. sale by for reimbursement, 2027. on credit, 2028. what is a factor, 2368. PAILIRE OF COXSIDERATIOX. See tit. Recovery Back of Money Paid. FAIR. See tit. Agricultural Pair Corporation.s. refusal of admis.sion to, 53. FAIR CORPORATIONS. See tit. Agricultural Fair Corporations. FALSE CERTIFIC.VTES. See tits. Certificates of Stock; Cor- porations. FALSE PROSPECTUS. See tits. Corporations; Promoters. FARE. See tit. Common Carriers o£ Passengers. as to when payable, 2187. ejectment for non-payment. See tit. Ejection for Xon-pay- ment of Fare. not payable after ejection, 2190. rates of street railroads, 501. 1148 INDEX. [References are to sections.] FARRI. See tit. Homestead. FATHER. See tits. Parent ami Child; Siu-tession. FEE. See tit. Vested Fee. FEE SIMPLE conditional fees abolished, 76.3. estates tail abolished, 763. title presumed to pass, when, 1105. what is, 762. words of inheritance unnecessary to create, 1072. FEE TAIL abolished, 763. fp:es recorder's, 116.5. FELONY ground of divorce, 92. limitation of action for divorce for conviction of, 124. FELLOW-SERVANTS. See tit. Master and Servant. FEMALES attain majority, when, 2.5. of fifteen years of age, may marry, 56. FEME COVERT. See tits. Hn.sband and AVife; Married Women. FENCES coterminous owners mutually bound to eciually maintain, 841. division, 801, 841. easement, 801. on boundary is common property, 830. / railroad as to duty and liability respectinK, 485. may recover damages for failure of owner to maintain, when, 485. to pay damages for failure to maintain, 485. tenant for life, to repair, 840. FERRIES. See tit. Bridges, Ferry, AVliarf, Chute, and Pier Corporation.s. FICTITIOUS name of partnership, 2466, 2467. payee, in bill or negotiable instrument, 3103. FILING. See tit. Corporations. of affidavit of sale of delinquent stock, 347. of articles of incorporation, 206. duty of secretary of state on, 296. erroneous, how corrected, 363 [a]. of inventory of wife's separate property, 165, 166. 1149 INDEX. , [References are to sections.] FIXAL JUDGMENT. See tit. Divorce. when granted in divorce, 132. FINANCIAL. STATEMENT to be made to stockholders of corporation, when, 302a. FINDER abandoned thing, of, 1885. i appraisement of property found, 1864. claimant, to prove title, 1866. duty of, 1865. estray and lost property book, 1865. liability of, 1871. may put property found on storage, 1868. reward for, 1867. sale of property found, 1869. surrender of thing found, 1869. title to thing found, vests in, when, 1871. to notify owner, when, 1865. FINDING claimant to prove ownership, 1866. duty and obligation of finder, 1865. may put thing found in storage, 1868. may sell thing found, when, 1869. how sale to be made, 1870. property vests in owner, when, 1871. thing abandoned, 1872. to notify owner, when, 1865. FINE for cruelty to children and animals, 607b. FINES, PENALTIES, AND FORFEITURE in proceedings for cruelty to animals, etc., and disposition of, 607e. FIRE, CORPORATIONS TO DISCOAER laws and ordinances relating to fire department to govern, 453b. not to interfere with fire department, 453a. powers of, 453a. right of way when running to fires, 453b. yearly meetings of such corporations, 453c. assessments, how collected, 453c. fixing expenses, 453c. notice of meeting, 453c. payment of employees, etc., how provided for, 453c. power of majority present, 453c. proceedings at such meetings, 453c. who may vote at, 453c. 1150 INDEX. [References are to sections.] FIRE IIVSURAIVCE acts of insured subsequent to policy, 2755. alteration increasing risk, 2753. not increasing risk, 2754. investment of funds of, 421, 421[a]. measure of indemnity, 2756. total and partial loss, 2757. value of interest in policy, how fixed, 2757. FIRE, LIFE, HEALTH, ACCIDENT, AND MARINE INSITR- ANCE CORPORATIONS of investment of funds of, 421. FIRE, MARINE, AND TITLE INSURANCE. See tit. Mutual Life, Health, and Aeeirteut Insurance Corporations. accumulation of surplus funds, 432. amount of risk to be taken, 428. amount to be reserved by corporations with less than $200,- 000 capital, 430. capital to be paid in twelve months, 424. certificate of capital stock paid up to be filed, 425. within what time to be filed, 425. dividends, from what made, reservations, 432. funds, how invested, 420, 421 [a], 427. impairment of surplus funds, restoration, 432. payment of subscription, 424. property which may be insured, 426. reserve before dividend, as to, 429. amount to be reserved by a corporation with less than $200,000 capital, 430. FIRING AVOODS damages for, 3346a. FIXTURES. See tits. Appurtenances; I^au«lloril and Tenant. appurtenances. See tit. Appurtenances. attachment to mines, are fixtures when, 661. definition of, 660. fixtures attached to mines, 661. In general, 1013. mortgage lien on, 2926. ownership of, 1013. what are, 660. when thing deemed affixed, 660. FLUMES. See tit. Ditches, Flumes, Etc. FORCE. See tit. Duress. right to use, 50. FORCIBLE ENTRV AND DETENTION. See tits. Damages; Ejectment. 1151 INDEX. [References ai'e to sections.! FORECLOSURE. See tit. Mortgage, Foreclosure. as to, 2932-2967. of mortgages, 2932. of riglit to redeem pledge, 3011. FOREIGN. See tit. Allen. bills. See tit. Foreisn BilLs. building and loan associations, 645. corporations. See tit. Foreign Corporations. law, mistake of, 1579. navigation, defined, 962. ship, defined, 963. FOREIGN BILLS damages allowed on dislionor, 3234. how estimated, 3234. rate of damages, 3235. where expressed in foreign money, 3238. declaration before payment for honor, 3233. definition of, 3224. dishonor, damages allowed on, 3234. how estimated, 3237. rate of, 3235. where expressed in foreign money, 3238. interest on amount of protested bill, 3236. payment for honor, declaration before, 3233. protest necessary, 3225. by whom to be made, 3226. how made, 3227. notice of, how given, 3231. waiver of, 3232. when excused, 3230. when to be made, 3229. where made, 3228. FOREIGN CORPORATIONS. See tits. Corporations; Life. Healtb, Accident, and Annuity, Etc. articles of Incorporation certified copy to be filed with secretary of state, 408. fees to be paid on filing articles, 409. penalty for failure to file, 410. certified copy of articles of incorporation to be filed, 408. designation for services, revocation of, 406. designation of person on whom process may be served, 405. fees to be paid by on filing certified copies of articles, 409. foreign railroads, rights in state, 407. penalty for failure to file certified copies of articles, 410. 1152 INDEX. [References are to sections.] FOREIGN CORPORATIONS (continued). proof of foreign corporation, 406. service on secretary of state, when valid, 405. statute of limitations in favor of, 406. time of filing- articles, 408. FOREIGIV IXSITRANCK CORPORATIOIVS to have capital stock of one hundred thousand dollars, when, 420. of two liundred thousand dollars, wlien, 419. valuations of policies of, 447, 449-. FOREIGN L, AAVS mistake of, 1579. FORFEITURE. See tits. Apin-«»i»riation; Corporations; Fran- chise; Insurance Corporation.s, etc. as applied to appropriated waters, 1419. conditions involving, how construed, 1442. contract for, of property subject to lien, 2889. conveyance in excess of title, does not work a, 1108. of franchise of railroad by failure to operate, 468. of policies of insyrance, 2765. of powers ofcorporation, by non-user, 468,502. of servitude, by non-user, 811. of street railroad. See tit. Street Railroad. of wages of seamen, 2063. ' relief in case of, 3275. FORGETFULNESS. See tit. \Vllls. FORM of certificate of acknowledgement, 1189. by attorney in fact, 1192. by corporation, 1190. by married women, 1191. of covenant in executory contract, 1734. of grant, 1092. of marriage solemnization, 70. of mortgage of personalty, 2956. of mortgage of realty, 2948. of notice of assessment, 335. of notice of delinquency, 337. of notice of dishonor, 3143. of notice to quit, to tenant at will, 789. FUANC'HISE. See tits. Corporations; Wagon Roail Corpora- tions. execution sale of, place of, 393. duties of purchaser at, 389. \ ■■' 1153 INDEX. [References are to sections.] FRANCHISE (continued). extension of corporate existence, 401. filing- certificate of certified copy, 401. how made, 401. for construction of road for horseless carriages, etc., 524. forfeiture of railroad, 468. is property, 388. majf be sold under execution, 388. of railroad, forfeiture by failure to operate, 468. of street railroad. See tit. Street Railroad Corporations. of telegraph a.nd telephone companies, 537. railroads may sell to other railroads, 494. redemption of, 392. redemption of, from sale, 392. sale of liability under same as before sale, 391. purchaser may recover penalties, etc.,' 390. purchaser to transact business of corporation, 389. where to be made, 393. FRATERNAL. CO-OPERATIVE SOCIETIES. See tit. Mutual Benefit and Life Associations. are within the statute, 451. FRATERNAL CORPORATIONS. See tits. Fraternal Societie.s; Religious, Social and Benevolent Corporations. as insurance associations, 452a, 453. mutual life, etc., insurance corporations, 437-452. FRATERNAL SOCIETIES as insurance associations, 452a, 453. exempt from insurance laws, 451. FRAUD. See tit. \Aills. actual or constructive, 1571. actual fraud is what, 1572. constructive fraud, as to what constitutes, 1573. agent no authority to defraud principal, 2306. as affecting right to specific performance, 3391. as ground for annulment of marriage, 82. by-bidding, as a species of, 1797. constructive, as to, 1573. constructive or actual, 1571. contract exempting one from his own, void, 1668. obtained by, 1568, 1569, 1572, 1573. prevented from being put in writing through, enforceable, when, 1623. deceit as an element of, 1709-1714. 1154 INDEX. [References are to sections.] FRAUD (continued). desertion induced by, 97. ^ disregarding erroneous parts of written instrument, 1640. on oral contract required to be in writing, 1623. enforcement against fraudulent party, 1623. exemplary damages in case of, 3294. in apprenticeship, ground for annulling, 275. in marine insurance. See tit. Marine Insurauce. valuation under, 2736. in insurance, as to, 2629. instrument procured through avoided by judgment creditor only, when, 3441. deemed obtained through, wlien, 1568, 1572, 1573. power to revoke, when, 1229. voidable, 1566. when void against creditor, 3439. when void against purchaser, 1227. insurance omission to communicate avoid.s, 2306, 2310. return of premium for, 2619. insurer, liable for loss tlirough, when, 2629. intent, a question of fact, 3442. interest as damages in case of, 3288. marriage contract procured througli, 58 ground for annulling, 82. pledge, value misrepresented, 2999. rescission for, 1689. separation produced by, desertion, 97. specific performance, riglits of affected by, 3391. trust arising from, 2224. trustee guilty of, in what cases, 2234. will procured or revoked by, effect of, 1272. FRAUD AND MISTAlvE. See tits. Fraud; Ulistalte. FRAUDS, STATUTE OF. See tit. Statute of Frauds. as to, generally, 1623-1627. PRAUDULEXT CONA'EYAXCE. See tit. Fraudulent Transfers. FRAUDULENT INSTRUMENTS. See tit. Fraudulent Transfers. FRAUDULENT TRANSFERS. See tit. Unlawful Transfer. assignment for creditors. See tit. Assignment for nenellt of Creditors. when void, 3457. avoidance of, by creditors, when, 3441. bottomry, delivery is, when, 3440. 1155 INDEX. [References are to sections.] FRAUDULENT TRANSFERS (continued), chattel mortgage, 3440. as a, 2957-2959. delivery Is, when, 3440. transfer without valid, when, 3442. creditor's right to be judicially ascertained, 3441. creditor may avoid, when, 3441. debtor, contract of valid, when, 3431. definition of, 3439. delivery, necessary of personal property, 3440. fraud, a question of fact for jury, 3442. , judicial proceedings, is, when, 3439. lien is, when, 3440. mutual fraud, effect of, 1228. of realty, wliat is and what is not, 1227, 1228. presumption as to, 1135. as to in absence of delivery, 3440. purchaser having notice, rights of, 1227. question of fraud, how determined, 3442. references, valid, wlien, 3422. reimbursement of purchaser, 3440. resei-vation of interest in assignment for creditors, of, 3457. of power of revocation, effect of, 1229. respondentia, delivery is, when, 3440. ship or cargo, delivery not necessary, 3440. special partnersliip, conveyance by is, wlien, 2496. void, when, 3439. voluntary transfer. is, when, 3442. valid, when, 3442. what transfers are fraudulent, 3439. what transfers presumed fraudulent, 3440. wines, delivery of not necessary, 3440. FREEHOLD ESTATES estate for life of a third person is, wlien, 766. what are, 765. FREIGHT. See tit. Carriers of Property. delivery of, as to, generally, 2118-2122. FREIGHTAGE apportionment of by contract, 2140. according to distance, 2142. no objection on partial delivery, 2141. carrier's lien for, 2144. 1156 INDEX. [References are to sections.] FREIGHTAGE (continued). consignee liable for, when, 2138. consignor liable for, when, 2137. definition of, 2661. on natural increase of freight, 2139. freight carried further than agreed, 2143. when to be paid, 2136. FRIENDLY, ETC., SOCIETIES. See tit. Religioiis, Social, ami Benevolent Corporations. amount of land that may be held by, 596. as insurance associations, 452a, 453. limitation of amount of land, 596. FRUIT-TREES. See tit. Tree.s. FURTHER ASSURANCE. See tit. Covenants. covenant for, 1733. FUTURE CONTINGEIVT ESTATES how created, 773. FUTURE CROP. See tit. Chattel Mortgage. FUTURE ESTATE contingent, how created, 773. rights of owner of easeinents, 808. what is, 767. FUTURE INTEREST as to what is, 690. certain future interest not to be void, 697. classes of, 693. contingent interests, 695. how defeated, 740. lien on, 2883. perishable property, how protected, 947. taking effect on happening of contingency, 742. two or more future interests, 696. vested interests, 694. void when suspends power of alienation, 716. what are recognized, 703. what is, 690. when defeated, 739. when not defeated, 741. GAME as to right to take, 801, 802. GAMING insurance of void, 2558. GAS CORPORATIONS. See tit. Corporations to Furnish Light and Heat. application for gas to use, 629. 1157 INDEX. [References are to sections.] GAS CORPORATIONS (conti'nued). deposit as condition for furnisliing, 630. inspection of meters agent of corporation may inspect, 631. refusing, liability for, 631. refusal to furnish gas, penalty for, 629-630. to pay for gas, sliutting off, 630a. right to inspect, 631. GENDER of words in code, 14. GENERAL AVERAGE. See tit. Marine lusiirauee. adjusted how, 2152. application of rules, 2155. as to, 2744. definition of, 2148. goods stowed on deck of ship, 2154. in general, 2148-2155. insurance, free from, 2711. jettison. See tit. Jettison. loss, how adjusted, 2152. how borne, 2151. manager may adjust, 2388. marine insurance, liable for. See tit. Marine Insurance. as to, generally, 2707, 2743. shipmaster may adjust, when, 2388. things stowed on deck, 2154. values, how ascertained, 2153. GIFT IN VIEW OF DEATH. See tit. Gifts. GIFTS. See tit. AVills. ademption of legacy, when, 1357. causa mortis defined, 1149. effect of will on, 1152. is legacy, when, 1153. presumed, 1150. revocation of, 1152. community property of, 172. definition of, 1146. delivery essential, 1147. effect of will upon gift, 1152. fraud in, what is, 1149. how made, 1147. in view of deatli. See "Causa Mortis," this title. 1158 INDEX. [References are to sections.] GIFTS (continued). made how, 1147. not revocable, when, 1148. presumed to be in view of death, when, 1150. revocation as to, generally, 1151. bona fide purchaser, effect on, 1151. causa mortis gift, 1151. how made, 1147. in view of death, 1150. not revocable, when, 1148. subscribing- witness, may be made to, 1282, 1283. to subscribing w^itness to will, 1282. treated as legacy, when, 1153. when presumed to be in view of death, 1150. GIRLS. See tit. Females. GOOD FAITH advance made in, by agent, indemnification, 2344. agent bound to act in, when, 2343. offer of performance must be made in, 1493. partner highest required of, 2411. when bound by act not made in, 2431. principal bound to person acting in, 2334. trustee must act in highest, 2228. what constitutes, 15. GOOD WILL. is property, 655, 993. of business, 992. partner cannot dispose of, 2430. sale of in restraint of trade, 1673, 1676. subject of ownership, 655. warranty on sale of, 1776. GOOD WILL AND NAME is property, 993. GOOD AVILL OF BUSINESS transfer of, 993. GRACE. See tit. Days of Grace. GRANT. See tits. Conveyance; Transfer. mortgage not a, 1054. GRANT OF REAL PROPERTY form of, 1092. 1159 INDKA. [References are to sections.] GRANTOR interest remaining in grantor of express trust, 866. name of changed, how to execute, 1096. of trust property, title of, 865. GREATER contains less, 3536. GROWING CROPS. See tit. Morfsase of Personal Property. GUARANTY acceptance of, 2795. alteration of agreement, 2821. consideration necessary to create, 2792. collectibility, as to, 2800. conditional, as to liability on, 2808. construction of, how made, 2806. continuing guaranty, 2814. as to what is, 2814. revocation of, 2815. deemed original undertaking, when, 2792. definition of, 2787. delay of creditor does not discharge guarantor, when, 2823. disability of principal, effect on, 2810. discharge of principal by operation of law does not dis- charge guarantor, 2825. enumeration of original, 2794. exoneration of guarantors, 2819. what dealings will exonerate, 2819. void promise does not alter or repair remedy, when, 2820. factor del credere, 2794. guarantor indemnified not exonerated, 2824. liability of does not exceed that of principal, 2S09. illegal contract, no liability on, 2810. incomplete contract, effect of, 2799. indemnified guarantor, alteration of contract, effect, 2824. indorser has rights of guarantor, 3120. interpretation of, 2799. liability upon such guaranty, 2802. of complete contract, 2794. recovery upon such guaranty, 2801. that obligation is good or collectible, 2800. knowledge of principal not necessary, 2788. letter of credit as a, 2862, 2863. may be continuing, 2864. 1160 INDEX. [References are to sections.] GUARANTY (continued). liability of guarantors, generally, 2807. construction of, 2806. upon guaranty of conditional obligation, 2808. upon guaranty of payment of performance, 2S;07. must be in writing, 2793. of the guarantor cannot exceed tliat of principal, 2809. guarantor not liable on illegal contract, 2810'. original enumeration of, 2794. when deemed an, 2794. part performance, 2822. principal's contract void, effect on, 2810. disability, no effect on guaranty, 2810. relea.se of as to, 1543. by altering principal's obligation, 2819. by impairing remedies against principal, 2819. delay of creditor does not work, when, 2823. discharge of principal by law does not affect a, 2825. effect of by performance as a, 2822. void promise does not work a, 2820. reduced by partial performance, 2822. revocation of continuing, 2815. rescission of agreement, 2821. surety's rights those of guarantor, 2844. time when liability accrues on, 2807. unconditional, as to, when is, 2806. what is, 2787. writing, must be in, when, 2793. need not be in, when, 2794. GUARDIAN AND WARD ad litem guardian, 42. appointment by court, 243. appointment by will, 241. api)renticing ward, 265. confidential relation of guardian and ward, 250. custody of ward's person, rules for awarding, 246. damages for holding over, 3335. death of joint guardian, 252. definition of, 236. of general guardian, 239. discharge of guardian of minor, 257. when entitled to, 257. 1161 INDEX. [References are to sections.] GUARDIAN AND WARD (continued), duties of guardians of the person, 248. duty of guardian of the estate, 249. general guardian, what, 239. guardiau ad litem, 42. under direction of court, 251. appointed by parent, how superseded, 254. by will or deed, 241. death of joint, 252. defined, 236. discharge, entitled to, when, 257. dissolved, by what, 256. general, defined, 239. rules for appointing, 246. of estate, 242. of insane persons. See tit. Insaue Persons. parental autliority ceases on appointment of, 204. removal of, grounds for, 253. special and general, 238. special, what is, 240. under direction of court, 251. what, 236. guardian ad litem, 42. under direction of court, 251. guardianship, dissolved by what, 256. joint guardian as to, 252. death of, 252. jurisdiction, 245. kinds of guardians, 238. parental authority ceases on appointment of guardian, 204. power of guardian appointed by court, 247. relation confidential, 250. release of guardian by ward, 256. removal of guardian, 253. rules for awarding custody, 246. special guardian, what, 240. special or general, 238. stockholder, guardian as, 322. superseded, how guardian is, 254. suspension of power of guardian, 255. testamentary guardian, 241. . 1162 INDEX. [References are to sections.] GUARDIAN AND WARD (continued). \vard definition of, 237. may own stock in what corporations, 561. release by, 256. GUEST. See tit. Innkeepers. HABITlFAIi INTElMl'ERAIVCIi:. See tit. Divorce. divorce granted for, when, 92, 107. HALF-BLOOD relatives of, as to, 1394. HANDAVRITIIVG evidence of must prove what, 1199. of subscribing- witness may be proved, how, 1198. HEAD OF FAMILY. See tit. Homestead. defined, 1261. husband as, 156. HEALTH IIVSURAIVCE CORPORATIONS. See tit. Mutual Life, Health and Accident Insurance Corporations. HEIR. See tits. Succession; Wortls and Phrases. conveyance of good, unless will proved within four years, 1364. Interpretation of, 1071, 1329. legitimacy of, who may dispute, 195. of minor, may disaffirm contract, 35. of tenant for life take as purchasers, when, 779. word "heirs" not necessary to pass fee to devisee, 1329. HIGHWAY. See tit. Wagon Road Corporations. conveyance bounded by, passes what, 112. owner's title presumed to extend to center of, 831. railroad crossing to acquire land, how, 472. see tit. Public Highways. telegraph and telephone companies may use, 536. water company, not to obstruct, 551. HIGHWAYS AND PUBLIC ROADS no tolls to be charg-ed on, 515. HIRING. See tits. Hiring of Personal Propert.v; Hiring of Real Property. apportionment of hire, 1935. as to what is, 1925. care required of hirer, 1928. charter party definition of, 1959. master may enter into, 2376. definition of, 1925. degree of care required of hirer, 1928. 1163 INDEX. I References are to sections.] HIRING (continued). expenses extraordinary, 1957. ordinary, 1956. who must bear, 1956, 1957. hirer may terminate hiring-, 1932. . hiring- terminates, -when, 1933. injuries to be repaired by hirer, 1929. letter obligations of, 1955. to put thing in fit condition, 1955. lodging's for indefinite period, 1944. particular use, 1930. possession of thing hired, 1927. products of thing hired, 1926. quiet enjoyment, 1925. quiet possession, 1927. real property. See tits. Hiring of Real Property; Liandlord and Tenant. repairs, letter to make, 1955. return of thing hired, 1957. place of return, 1958. ships, hiring of, 1959. terminated by death, etc., of either party, 1934. by destruction, 1933. by letter, 1931. ■when, 1933. terminating hiring by letter, 1931. thing lent for a particular use, 1930. HIRING OF PERSONAL PROPERTY. See tits. Hiring; Hiring of Real Property. charter party, wliat is, 1959. extraordinary expenses, 1957. obligations of letter, 1955. ordinary expenses, 1956. return of tiling hired, 1958. HIRING OF REAL PROPERTY. See tit. Hiring. attornment. See tit. Attornment. to stranger, 1948. dwelling to be made fit for its purpose by lessor, 1941. fixtures. See tit. Fraud. lessee may make repairs, when, 1942. lessor to make dwelling fit for its purposes, 1941. 1164 INDEX. [References are to sections.] HIRING OF REAL PROPERTY( continued), letting parts of room forbidden, when, 1950. notice to quit, 3344. rent is payable, when, 1947. of lodgings for indefinite term, 1944. renewal of lease by continued possession, 194.^). tenant must deliver notice served, wlien, 1949. term of not limited or fixed, 1943. HOLDIIVG OVER damages for wilful, 3335, 3345. HOLIDAYS certain acts not permitted on, 11. enumeration of, 7. exclusion and inclusion in computation time. See tit. Com- putation of Time. falling on Sunday, 10. performance on following day, 11. what are within meaning of code, 71. HOLOGRAPHIC. See tits. Olojs^^raphie AVill; AVill.s. HOME to be selected by husband, 103. unfit, abandonment of wife by liusband, when, 104. HOMESTEAD. See tit. Homesteail Corporations. abandoned, how, 1243. abandonment declaration of, 1243. effectual from what time, 1244. acknowledgment on conveyance of encumV)rance of liome- stead, 1242. alienation of homestead of insane persons, 1269a. notice of application for order, 1269b. petition for, 1269a. when order may be made and effect of, 1269c. appraisement of and division of, 1251. application for, how made, 1246. filing petition for, 1247. hearing, time and place to b^e fixed for, 1248. service of petition and order to show cause, 1248. when may be had, 1245. appraisers of appointment of, 1249. compensation of, 1258. 1165 INDEX. [References are to sections.] HOMESTEAD (continued). appraiser.^ of (continued), duties of, 1251. oatli of, 1250. report of, 1252. proceedings on, 1252-1260. setting- off homestead, 125.^. as to what consists of, 1237. community property may be selected, 1238. complete, when, 1265, 1269. consists of what, 1237. conveyance of, how made, 1242. costs of proceedings to subject to debts, 1259. death of spouse, descends to whom, 1265. debts for what liable, 1241. liability of for, as to, 1265. declaration of. See tit. Declaration of Homestead. as to contents of, 1263. abandonment, 1243, 1244. recording, 1264, 1268. divorce, disposition of on, 146. encumbered, how, 1242. execution against homestead, 1245. application for, how made, 1246. application of proceeds of sale, 1256. appointment of appraisers, 1249. appraisers to be sworn, 1250. compensation of appraisers, 1258. costs, how paid and collected, 1259. determining value and divisibility, 1251. exemption from, 1240, 1241. exemption of proceeds of sale, 1257. money arising from sale equal to homestead exemption protected, 1257. notice of hearing and service of, 1248. order directing sale, when, 1254. petition for, where filed, 1247. proceedings on, 1245. report of appraisers as contents of, 1252. setting out homestead exemption, 1253. what bid may be received, 1255. when not subject to, 1240. when subject to, 1241. 1166 INDEX. [References are to sections.] HOMESTEAD (continued). exempt from forced sale, 1240. execution sale of, 1241. from what homestead may be selected, 1238, 1239. "head of family." See tit. Head of Family. definition of term, 1261. may select, 1262. mode of selection, 1262. liability of, in general, 1265. liens on, for what liable, 1241. lunatics, of, proeeedingrs to encumber or sell. as to generally, 1269a. notice of application for order, 1269b. petition for sale or mortgage, 1269a. when order may be made for, and effect of, 1269c. mortgage of, 1242. for what liable, 1241. other persons, selection of by, 1266. recording declaration, 1264, 1268. recording selection, 1262. sale of. See "execution," this title. bid which may be received on, 1255. disposition of proceedings on, 1256. exemption of proceedings of, when, 1257. on execution, when, 1241. w^hat bid may be received, 1255. when may be directed, 1254. selected from what property, 1238. selection acknowledgment of, 1266. by other persons, 1266. from community property. See tit. Community Property. from what property, 1238. from wife's property, consent necessary, 1239. mode of, 1262. separate property may be, 1238. tenure by, when held, 1265. title, perfected, when, 1265. value of homestead exemption, 1260. presumption as to value not indulged, 1260. what is, 1237. what may be selected, 1238. what not, 1239. when complete, 1265. who may select a homestead, 1260. 1167 INDEX. [References are to sections.] HOMESTEAD CORPORATIONS advertisement and sale of delinquent and forfeited shares, 559. annual report to be published, 565. publication to be made where, 566. by-laws must specify time for and amount of payment of instalments, 558. to be furnished to member on demand, 558. corporation terminated, when and how, 563. delinquent shares, advertisement and sale of, 559. dividends on termination, paid wlien, 563. division of property among shareholders, when, 563. forfeit for speculating in or selling lands exceeding amount, 562. penalty for violation, 562. forfeited shares, advertisement and sale of, 559. married w^omen may own stock in, 561. may borrow and loan funds, how and for w:iat time, 560. minor children, wards, and married women may own stock, 561. payment of premiums, 5 64. penalty for failure to pay instalments, 558. premiums, payment of, 564. stock of, who may own, 561. time of corporate existence, 557. wards may own stock in, 561. HOMESTEAD EXEMPTION setting off, 1253, 1254. HORSE degree of care required of by hirer, 1928. HORSELESS VEHICLES francliise to construct road for, 524. HORTICULTURAL ASSOCIATIONS. See tit. Co-operative Ag- rieultiiral, etc., Associations. HOTEL. See tit. Innkeepers. HUMANE CORPORATORS. See tit. Societies for the Preven- tion of Cruelty to Children and Animals. HUSBAND. See tit. Hu.shand and AVife. inherits from wife, 1400. succeeds, when. See tits. Community Property; Husband and AA'ife; Succession. to support, when, 176. HUSBAND AND AVIFE. See tit. Married AVomen. abduction of spouse, 49. children. See tit. Parent and Child. 1168 INDEX. [References are to sections.] HUSBAND AND WIFE (continued). community property. See tit. Coinniunity Property. g-ift by husband, 172. includes what, 164. power of husband over, 172. testamentary disposition of by spouses, 172. when not liable for wife's debts, 167. contracts between and others, capacity to malie, 158. by liusband, 158. by wife, 158. not impaired by their legal relations, 159. of marriage settlement, how executed, 178. minors may make, 181. to be acknowledged and recorded, 179. effect of recording, ISO. of separation, 159, 160. respecting- community property, 167. courtesy and dower. See tits. Courtesy; Dower. custody of children. See tit. Children. dividends on stock, payable to married woman, 325. domicile husband may fix, 103. selecting- unfit amounts to desertion, 104. dower. See tit. Do-wer. dwelling, neither spouse can be excluded from, 157. earnings of wife not liable for husband's debts, 168. when living separate and apart, 169. enticement of wife, 49. head of family, husband is, 156. homestead. See tit. Homestead. homestead corporation, wife may liold stock in. See tit. Homestead Corporation. husband , may make contracts, 158. property of, not liable for wife's debt, when, 170. rights and liabilities of in relation to stepchildren, 209. rights of as head of family, 156. separate property of, includes what, 163. wife liable for support of, when, 176. inheritance by. See tit. Succession. inventory of separate property of wife. See tit. Separate Property of AVife. filing of inventory, 166. 1169 INDEX. [References are to sections.] HUSBAND A"ND WIFE (continued), joint tenancy between, 161. legitimacy of issue. See tits. BaMturilN; Legitiinsicy. marriagre .settlement contracts. by minor, 181. effect of recording', 180. how executed, 179. to be acknowledged and recorded, 179. married woman. See tit. Married AVomen. mutual obligations of, 155. property interests of are separate, 157. property of, how held, 161. property of wife not liable for husband's debts, 171. property rights of, in general, 177. right of husband as head of family, 156. may select home, and wife must acquiesce, 130, 104. rights of husband and wife governed by, what, 177. savings and loan stock may be held by wife, 575. separate property of liusband. See tit. Separate Property of Husband. of wife. See tit. Separate Property of Wife. liable for antenuptial debts, 170. liability of, of wife, for husband's debts, 171. separation consideration for, 160. contract of between, 159, 160. settlement. See "marriage settlement contracts," this title, stepchildren, husbands duty toward, 209. stock, married woman may transfer, 325. support of husband, wife liable for, when, 176. of wife, 174. when separated from her husband, 175. tenants in common, 161. wife may make contracts, v^^hen, 158. to support husband, when, 176. wife's earnini^s her separate property, when,' 169. not liable for husband's debts, 168. wife's estate. See tit. Separate Property. what included in, 162. ■*Tife's property liable for her debts, 171. not liable for husband's debts, 171. wife's separate property, what included in, 162. ■ 1170 INDEX. [References are to sections.] HUSBAND'S DEBTS earnings of wife not liable for, 168. HYDRAULIC MIXIXG as to generally, 1424, 142.5. definition of, 1425. when may be carried on, 1424. HYPOTHECATION of property by wagon-road corporation, 522. IDENTIFICATION of contracting' parties, 1558. IDIOTS. See tits. Insanity; Persons of Unsound ^lind. IDLE ACT law does not require, 3532. ILLEGAL CONTRACTS. See tit. Specific Performance. ILLEGITIMATE CHILD. See tits. Bastard; I>egitiniaey adoption of, 230. custody and control of, 200. succession of. See tit. Succession. IMPLIED COVENANTS as to, 1113. what embraces, 1114. IMPOSSIBLE OR UNLAWFUL CONDITIONS. See tit. Con- ditions. are void, 1441. IMPOSSIBILITY ascertaining consideration of, 1612. ascertaining object of contract of, 1595. condition void because of, 1441. defined, 1597. law does not require, 3531. of performance avoid contract, 1598. IMPOTENCY as ground of annulment of marriage, 82. IMPROBABILITY of contingency, future interest, 697. INCAPACITY. See tits. Insane Persons; Persons of Uu.xound Mind. physical, ground for annulment of marriage, 82. terminates agency, 2355. terminates hiring, 1935. to consent, ground for annulment of marriage, 82. to contract, 39, 40. INCEST action to annul marriage for, 82. what marriages are incestuous, 59. 1171 INDEX. [References are to sections.] INCIDEATS. See tit. 'Transfer. INCOME accumulation of, 724, 733. allowance out of, 726. bequest of, 1366. definition of, 748. disiiosition of. See tit. Accumulatious. of property, belong^s to whom, 733. undisposed of, 733. INCOMPETENCE of parties to marriage. See tit. Marriage. as to generally, 59. INCOMPETENT PERSONS lease of city lot of for more than ten years, void, 718. INCREASE OF PROPERTY. See tit. Accession. belongs to owner, 732. freight not charged on natural increase of, 2139. of hired, belongs to hirer, 1926. of lent, belongs to lender, 1885. pledge, of, 2989. INCUMBRANCE. See tit. Encumbrance. INDEMNITY. See tits. Guaranty; Suretyship. actions to recover, 2777. agents, acts of covered by, 2775. agreement to indemnify, interpretation of, 2778. bail, as to what is, 2780. defenses to actions for recovery of, 2778. definition of, 2772. extends to acts of agents, 2775. for future wrong'ful act, void, 2773. for past wrongful act, valid, 2774. how regulated, 2781. in judgment restoring lost or burned bonds of corporation, 329. includes costs of defense, 2778. interpretation of, rules for, 2778. joint and several liability of indemnifiers witli indemnified, 2777. judgment for, conclusiveness of, 2778. person indemnifying as a surety, when, 2779. jointly liable, 2777. promissory note. See tits. Negotiable lustrunieuts; Promis- sory Note. rules for interpretation of agreement of indemnity, 2778. 1172 INDEX. [References are to sections.] INDEMNITY (continued). several, as to, 2776. surety, person indemnifying- is, when, 2779. to several parties, 2776. unlawful act, against, 2773, 2774. wrongful act, against, 2773, 2774. INDEIVTrRE. See tits. Apprentice; Master and Apprentice. IXDICTMEXT for nuisance, 3491, 3492. IXDORSEMEXT. See tits. BilLs; jVegotiable Instruments; Promissory Notes. agreement to indorse, 3109. apprenticeship, of, 2'66. bill of lading-, 2127. consideration, effect of want of, 3122. definition of, 3108. effect of want of consideration, 3122. g-eneral indorsement, 3112. how made special, 3113. implied warranties of indorser, 3116. indorsee in due course, who is, 3123. rights of, 3124. indorsee privy to contract, 3120. indorsement without recourse, 3118. effect of, 3119. indorser liable to payee, when, 3117. marriage certificate, of, 73. may be made on separate paper, when, 3110. means of indorsement, 3111. of non-negotiable instrument. See tit. Xegrotialde Instrn- ments. of stock. See tit. Certificate of Stocls. rights of indorsers in due course, 3124. cannot destroy negotiability, 3115. stock, necessary to transfer, 324. surveyor-general's, on plat of right of way, 478. INEVITABLE ACCIDENT. See tit. Rules of Navlgatiou. INFANT AND INFANCV. See tit. Minor. abandonment of, 246. abduction of, 49. action by, guardian must conduct, 42. agency, cannot give, 33. apprenticing. See tit. Master anil .4pprentice. as to who are, 25. 1173 INDEX. [References are to sections.] INFANT AND INFANCY (continued). building- and loan shares may be owned and held by, 643. children who may be arrested and brought before court, etc., 607gr. contract, competency to, 1557. rights of, 34. validity of, 34. delegation of power by, 34. disaffirmance of contracts, 35. by personal representatives of, 35. cannot disaffirm for necessaries, 36. limitations on, 37. return of consideration on, 35. en ventre. See tits. Posthumous Child; Unborn Infant. as to rights of, 29. exemplary damages against, 41. guardian must conduct action by, 42. head of family, as a,, 1261. homestead stock may be owned and held by, 561. land and building shares may be owned by, 643. lease of city lot of infant for more than ten years, void, 718. marriage of, 57. annulment of, 82. condition restraining, 710. marriage settlement by, may be made, 181. necessaries, contract for by, not to be disaffirmed, 36. period of minority, how computed, 26. personalty not in possession, contract as to, 33 posthumous child, property rights of, 698. real property of, contracts by respecting, 33. savings and loan stock may be owned by, 576. stock owned by, how represented at corporate elections, 313. torts of, liability for, 41. unborn child, as to rights of, 29. who are, 25. INFORMATION. See tit. Nuisance. as to for nuisance, 3491, 3493 INFRINGEMENT. of trade-mark. See tit. Trade-marks and Signs. INHERITANCE. See tit. Succession. injury done to, remedy for, 826. of husband and wife from each other, 1400. words of not necessary to pass fee, 1072. 1174 INDEX. [References are to sections.] INJUXCTION as to generally, 3368. allowed, in what cases, 3366,3422. not allowed, in what cases, 3423. allowed, when, 3422. court of another state, proceedings in, not stayed, 3423. federal court, proceedings in, not restrained, 3423. final or provisional, 3420, 3421. forfeiture, 3369. ' grounds for granting, 3422. how granted, 3420. legislative act of municipal corporation, not, 3423. multiplicity of suits restrained by, 3422. not allowed, when, 3423. office, not granted respecting, when, 3423. penal law, 3369. penalty, 3369. provisional injunction, as to 3421. regulated by code, 3421. provisional or final, 3420. statute, enforcement of not restrained by, 3423. trust, in cases in relation to, 3422. when allowed, 3422. when not allowed, 3423. INJURY. See tits. Damage.s; Employer and Employee; Master and Servant; Xeglig-ence. contract for exemption from, 1668. inflicted in duel. See tit. Duel. obligation to abstain from, 1708. right to defend against, 50. right to protectio'n from, 43. threat of, renders contract void, when, 1569, 1570. INN. See tit. Innkeepers. INNKEEPERS as to liability of, 1859. how exempted from liability, 1860. lien for charges on baggage, 1861. sale of unclaimed baggage, 1871. to post rates of charges, 1871. unclaimed baggage, how disposed of, 1871. INNUENDO. See tit. Llhel. INSANE DELUSION. See tit. AVlUs. 1175 INDEX. [References are to sections.] INSANE PERSONS. See tit. Person.s of Unsound Mind. agency terminated by incapacity of, 2355. as to sale or mortgage of homestead of, 1269a, 1269c. contract, competency to make, 1558. employment terminated by incapacity of, 1996, 1997. guardian of, 1763. homestead of, alienation or encumbrance of, 1269a, 1269c. liability for torts, 40. marriage of, annulment, 82. ^ necessaries of, liability for, 38. powers of, after oflice found, 40. proposal to contract revoked by insanity, 1587. rescission of contract of, 39. restoration, certificate of, evidence of legal capacity, 40. stock of, how represented at corporate election, 313. torts of, liability for, 41. trustee, 2282. INSOLVENCY. See tits. A.ssij;nment for Benefit of Creditors; Fraudulent Transfers; Stoppage in Transitu. INSTRUMENT cancelation of, in general, 3412, 3414. judgment proving, 1203. proof of, action for, and effect of judgment, 1304. execution of, when not acknowledged, 1195. INSULT right to protection from, 43. INSURABLE INTEREST. See tit. Insurance. as to what is, 2546. carrier has, 2548. change of interest or succession, 2552. cotenants, transfer between, effect of, 2557. death of insurer, 2556. depositary has, 2548. exception in case of several subjects in one policy, 2555. expectancy, 2549. factor has, 2367. in life, assignment to one witliout, effect of, 2764. in what may consist, 2547. insurance without interest illegal, 2551. interest for life, 2763. interest insured, must exist, 2552. interest of carrier of depositary, 2548. loss, transfer after, effect of, 2554. measure of interest in property, 2550. 1176 INDEX. [References are to sections.] INSURABLE INTEREST (continued), mere expectancy, 2549. transfer, after loss, 2554. effect of, 2553. transfer between cotenants, effect of, 2557. void insurance stipulations, 2558. wlien must exist, 2552. IjVSURAXCE. See tits. Insurable Interest; Insurance Com- panies. accident insurance. See tit. Insurance Corporation. insurance by form of policy, 2587. assignment of life insurance policy, effect of, 2764. assignment of tiling insured to mortgagee, effect, 2541. new contract between insurer and assignee, 2542. carrier has insurable interest, 2548. certificate of loss dispensed with, when, 2637. change o£ interest after loss, 2554. between partners of joint owners, 2557. by death of insured, 2556. in one of several things, 2555. in thing insured, 2554, 2557. commissioner. See tit. Insurance Commissioner. concealment and representations, 2561. application of provisions of statute, 2582. effect of concealment, 2562. fraudulent warranty, 2569. interest of insured. See tit. Insurable Interest. as to, 2568. materiality of representation, 2581. materiality, test of, 2565. matters each is bound to know, 2566. matters of opinion, 2570. matters wliich need not be communicated, 2564. opinions, matters of, 2570. waiver of communication, 2567. what may be insured, 2531. wliat must be disclosed, 2563. contribution in case of double insurance, 2642. in case of over-insurance, 2620. proportionate contriljution, 2622. definition of, 2527. disclosed, facts which must be, 2563. facts which need not be, 2564. 1177 INDEX. [References are to sections.] INSURANCE (continued). double insurance, as to, 2641. contribution, in case of, 2642. definition of, 2641. events that may be insured against, 2531. examination of premises by insured, and value fixed, 2757. excepted perils, 2628. exoneration of insurer, 2629. factor may insure, 2368. fire corporations to discover, etc., 453a, 453b. double insurance, contribution, 2642. examination of premises and fixing value, 2757. insurance. See tit. Fire Insurance. measure of indemnity, 2756. partial loss, 2757. property which may be insured, 426. valued policy, 2757. fire and marine insurance, 428. fire companies. See tit. Insurance Companies. fraternal societies exempt from laws of, 451, 453p. fraud in, 2629. fraudulent omission to communicate facts, 25C9. fraudulent warranty, 2569. g-uaranty insurance, 2772-2778. increase of risk, acts not affecting policy, 2754. alterations which affect on, 2753. alterations ■which do not affect on, 2754. indemnity insurance, 2527. insurable interest. See tit. Insurable Interest. insurance of lottery or prize unauthorized, 2532. insured, who is, 2539. who may be, 2540. insurer, exoneration of, 2629. who is, 2539. who may be, 2540. interest covered by policy, 2568. of insured, necessity of communicating, 2568. joint owners, transfer of interest between, 2557. kinds of, 2533. lapsing of policies, prohibited, when, 453m. life and health. See tit. Life and Health Insurance. loss, 2626, 2627. certificate dispensed with, when, 2637. 1178 INDEX. [References are to sections.] INSURANCE (continued). I0S.S (continued). excepted perils, 2628. incurred in rescue from peril, 2627. negligence and fraud, 2629. notice of, 2633. perils of insurance, proximate and remote, 2626. preliminary proofs of, 2634. waiver of defects in notice, etc., 2635. waiver of delay, 2636. lottery not insurable, 2532. marine insurance. See tit. Marine Insurance. negligence, 2629. over-insurance, as to, 2620. parties to contract of insurance, 2538. designation of parties, 2538. who may be insured, 2540. who may insure, 2539. perils, remote and proximate, 2626. policy. See tit. In.suranoe Policy. premium, 2616. earned, when, 2616. over-insurance by several companies, 2620. contribution, 2621. proportion of contribution, 2622. return of, 2617. for fraud, 2619. when not allowed, 2618. reinsurance, as to what is, 2646. disclosures require, 2647. original insured has no interest, 2646. presumed to be against liability, 2648. representation as to, what is, 2571. as to future, 2574. falsity of, 2579. conflict of, 2580. materiality of, 2581. how interpreted, 2573. how may effect policy, 2575. representation, information, 2578. rescission of insurance contract, 2583. time intended by, 2577. when may be, 2572. when may be withdrawn, 2576. rescue from peril, loss incurred in, 2627. 1179 INDEX. [References are to sections.] INSURANCE (continued), test of materiality, 2565. what events may be insured against, 2531. who may insure, 2539. who may be insured, 2540. IXSURANCE COMMISSIONER authority over mortgage insurance companies, 453aa. bills for certain expenses, 453o. INSURAXOE CORPORATIONS. See tits. Fire luNuranoe; Life Insurance. capital, how invested, 421. capital stock of one" hundred thousand dollars, when, 420. of two hundred thousand dollars, when, 419. subscription to, how opened, 414. directors liable for loss on insurance, wlien, 418. dividends as to what are, 417. w^hen to be declared, 417. investment of capital and accumulations, 421, 421 [a]. life insurance corporations may loan on own policies, 421, 421[a]. purchase of or loan upon interest-bearing bonds, 421 [a], policies, how issued, and by whom signed, 416. purchase and conveyance of real estate, 415. report of officers, 421. subscription to capital stock, how opened, 414. surplus of, how invested, 421. what property may be held, 415. INTEMPERANCE ground for divorce, when, 92, 107. liabitual, vs^hat is in divorce, 106. must continue for one year, 107. INTENTION. See tits. Gifts; AViUs. ascertained by language, when, 1638. by writing, when, 1639. compliance with, substantial sufficient, 1348. fraudulent, a question for tlie jury, 3442. general terms restricted by, 1648. hoT\- ascertained as to generally, 1637. in revision, 3401. inconsistent witli, words whicli are, to be rejected, 1653. interpretation of contract governed by, 6136. of grantor, where grant ambiguous, 1068. 1180 INDEX. [References are to sections.] INTENTION (continued). of testator as to g'enerally, 1317, 1370. to be ascertained from words of will, 1318. of trustor, necessary to creation of the trust, 2221. overrules grammatical construction, 1324. teclinical meaning, 1327. particular clause, subordinate to general, 1650. revision and reformation of contract to conform to, 3399. substantial compliance with, sufficiency of, 1348. superior to terms of expression in written contract, when, 1640. to be ascertained from words of will, 1318. to be carried out, 1317. to deceive, indispensable element in fraud, 1572. to desert, simple separation does not show, 100. to extinguish obligation, necessary in novation, 1531. to control in the interpretation of contracts, l(f36. to make ademption, writing, necessary, 1351. «heii ascertained by language, 1638. by the writing, 1639. words which are inconsistent witli are to be rejected, 1653. INTEREST annual rate, 1916. as to time as to generally, 688. future interest, what is, 690. limited interest, what is, 692. perpetual interest, what is, 691. present interest, what is, 689. bequest of, 1366. bottomry contract, rate in, 3022. Ijuilding and loan corporations, 633. cemetery bonds, on, 611. eomitoiind trustees's liability for, 2262. wlien compounded, 1919. computation of, 1917. damages, as, 3287, 3294. definition of, 1915. guaranty notes of mutual life insurance comjianies, as to on, 441. illegal rate, 1917. 1181 INDEX. [References are to sections.] INTEREST (continued). in actions ex contractu, 3287. after breach, 3338. In actions ex delicto, 3288. judgrnent, interest on, 1917-1920. legacies, Interest on, 1368. loan and building corporation, interest chargeable by, 634. offer of performance stops running of, 1503. parties may agree to, 1918. presumed on loan of money, 1914. protested bill, rate of, 3236. railroad bonds, interest on, 456. rate of after breach of contract, 3338. after verdict, 3289. limit of by contract, 3289. on money borrowed by hon^estead corporation, 560. respondentia, rate on, 3039. special partner entitled to, when, 2492. trustee liable for, when, 2262. liability to beneficiary, 2237. waiver of, by accepting principal without, 3290. INTEREST IX COMMON as to, generally, 686. as to what interests are in common, 686. community property. See tit. Community Property. what is, 685. INTEREST IN PROPERTY an to time of enjoyment future interest, what is, 690. limited interest, what is, 692. perpetual interest, what is, 691. perpetual or limited, 688. present or future, 689, 690. contingent interest, as to what is, 695. expectant estates. See tit. Expectant Estates. future interest, two or more conflicting, 696. not to be void, 697. Interest in real property, what is, 701. future interests are recognized, 703. kinds of future interest, 690. mere possibility of the interest, 700. name and classification of interests, 702. posthumous children. See tits. Posthumous Children; In- born Child. vested interest, as to what is, 694 1182 INDEX. [References are to sections.] IlVTERIiOCUTORY JUDGMENT in action for divorce, 131. INTERPRKTATION of agent's authority, 2322. INTERPRETATION OP CONTRACTS as to time of performance, 1657. control by circumstances, 1647. effect to be given to every party of instrument, 1641. general rule of interpretation, 1635, 1636. how to be interpreted, 1636. inconsistent words rejected, 1653. in favor of contract, 1643. in sense in which promisor believed promisee to rely, 1649. intention of parties, how ascertained, 1637. language used to govern, 1638. law of place governs, when, 1646. necessary incidents implied, 1656. of written contracts, 1639. writing, when disregarded, 1640. fraud and mistake. See tits. Fraud; Mistake. particular clauses subordinated to general intent, 1650. partly written and partly printed, 1651. reasonable stipulations implied, when, 1655. repugnance, how reconciled, 1652. restricted to its evident object, 1648. several contracts taken together, when, 1642. technical words, how interpreted, 1645. words taken most strongly against whom, 1654. words to be understood in their usual sense, 1644. INTERPRETATION OF GRANT. See tit. Transfer. INTERPRETER may be employed by officer taking acknowledgment, 1201. INTESTATE. See tit. Sueoession. estate of, chargeable witli debts, 135S. INTESTACY to be avoided, in construction of will, 1326. INTOXICATION. See tits. Contracts; Divoroe; AVIIIs. INUNDATION deposit by an, as to, 1815. INVENTION as to property in, 980-985. INVENTORY by assignee for creditors, 3461-3464. by specific legatee, 1365. 1183 INDEX. [References are to sections.] INVENTORY (continued). of separate property of wife. See tit. Separate Property of Wife, IRRIGATION. See tit. Canal Corporation.s. ditch or flume, liability in use of by association, 842. easement, 552. flume or ditch, liability in use of, 842. maintenance of flow of water in streams to canal takes, 1410b. rig'ht of purchaser to use water for. See tit. Water and Canal Corporations. IRRIGATION CORPORATION. See tit. Irrigation. as to, generally, 552. stock appurtenant to lands, when, 324. transfer of stock ofj 324. IRRIGATION STOCK appurtenant to certain lands, 324. ISLANDS as to, generally, 1016-1018. belong to whom, 1016. formed by diversion of stream, 1018. in navigable streams, 1016. in unnavigable streams, 1017. sudden removal of bank, 1015. ISSUE interpretation of, 1071. meaning of, in certain remainders, 1071. unprovided for to succeed, when, 1307. JETTISON. See tit. General Average. definition of, 2148. loss, how borne, 2151. order of, 2149. by whom to be inade, 2150. JOINT and several contract, presumed, when, 1659. and several obligation, what Is, 1430. authority, 12. authorship, 981. ereditor directions by one to debtor, 1476. performance by one, 1475. debtor performance by, 1474. delivery of thing by depositary which is owned jointly, 1827. employees, duty of survivor, 1991. guardian, death of, effect, 252. 1184 INDEX. [References are to sections.] JOINT (continued). interest change in does not affect insurance, when, 2557. defined, 683. liability of each. 2239. obligations, as to, 1430-1432. owner, delivery, how made to by depositary, 1827 ownership, as to, 682. promise, presumed to be, when, 1659, 1660. services after death of joi'nt employee, 1991. survivorship between, 2288. trustee, all must act, 2273. JOINT AUTHORITY how construed, 12. joijVT deposits by two or more persons, 1828. JO I XT INTEREST w^hat is, 6S3. JOINT OWNERSHIP to products of the mind, 981. JOINT OR SEVERAL OBLIGATIONS. See tit. Obligations. contribution between parties, 1432. statute of limitations as to. See tit. Statute of Limiiatlou!). JOINT TENANCY AND JOINT TENANTS husband and wife may be, 161. JOINT WILLS. See tit. W^ills. JUDGMENT effect of, in action to prove instrument, 1203. effect of such judgment, 1204. for delivery. See tit. Claim and Delivery. for possession of, 3375. interest, 1919. interlocutory, 131. lien of, 3058. marriage annulled by, 86. may be recorded without acknowledgment, 1159. partner may not confess, 2430. proving instrument, 1203. recording. See tit. Iloeorilation. JUDICIAL SALE foreclosure of riglit to redeem pledge by, 3011. warranty upon, 1777. JIINIOB LIENOR right of to redeem, 2904. 38 1185 INDEX. [References are to sections.] JURISDICTION ACQUIRED BY CORI'ORATIOIV ON Pl'HI>ICA- TION OF NOTICE as to, generally, 340. JUSTICE OF THE PEACE acknowledgment, may certify, 1194. may take, 1181. apprenticeship. See tit. Ma.ster and Amirentice. list of property found to be filed witli, 1864. marriage ceremony may be performed by, 70. may call meeting of corporation, wlien, 311. JUSTICES' COURTS appeal from, undertaking on, 97Sa. JUSTIFICATION. See tit. Libel. KILLING SHEEP by dogs, as to liabilitj^ 3341. KINDRED collateral line, direct line of, 1393. degrees of i'n direct line, 1392. direct line, 1392. half-blood. See tit. Half-blood. LABORER lien of, 3052, 3061, 3065. LAND definition of, 659. LAND AND BUILDING CORPORATIONS annual report, 64 4. forfeiture for failure to file, 644. report to be published, 644. arrears in payment, notice and forfeiture, 639. capital stock, 634. certificate of shares, series of, 634. defaulting member entitled to withdrawal, 639. withdrawal value to be credited on enforcement of for- feiture, 639. definition of term "building and loan association," 648. dues, 634. electing to continue business, procedure on, 646. certificate, 646. entrance and transfer fees, 634. fines, 634. foreign building and loan association, deposit required of, 645. agents of companies not complying guilty of misdemeanor, 645. effect of failure to comply, 645. 1186 INDEX. [References are to sections.] LAND AND BUILDING CORPORATIONS (continued). Installments to be uniform, 637. losses of, 642. matured stock, amount applicable to payment of, 6.36. may borrow money, 641. may buy real estate, 640. membership, who may hold shares, 643. exemption, 643. money to be loaned, 637. notice of withdrawal or surrender of stock, 63Sa. notice of arrears and forfeiture, 639. payment in advance, 634. profits and losses of, 642. rate of interest on and security for loans, 638. repayments, 638. retire free shares^ amount annually, 635. shares, 634. subject to provisions relating to bank comini'ssioners, 647. what articles of Incorporation shall set forth, 633. withdrawal or surrender of stock, 63Sa. notice of, 63Sa. I.ANDIiORD AND TENANT. See tit. liCase. adverse proceedings, notice of to be given by tenant, 1949. assignee of lease, liability of, 822. nttoriiiitent by tenant not required, when, 1111. of tenant to stranger, 1948. dwelling-house, to be put in fit condition by lessor, 1941. ejectment notice of to be delivered by tenant, 1949. without notice, 793. fixtures. See tit. Fixtures. holding over, treble rent for wilfully, 3345. lease dependent on life of. person, rent recoverable after, death, S25. for life, rent on, 824. of city lot for more tlian ninety-nine years, void, 718. of farm for more than flfteeii years, void, 717. statute of frauds, 1624. terms may be changed by notice, 827. lessees and assignees, ri'ghts of, 823. assignee, liability of, 822. letting parts of rooms, regulations regarding, 1950. liability of assignee of lease, 822. 1187 INDEX. [References are to sections.] LANDLORD AND TENANT (contrnued). lodgings hired for an indefinite period, 1944. quit failure to after notice, treble rent as damages, 3344. notice to, 1946. re-entry, to be made, when and how, 791. renewal of lease acceptance of rent as, 1945. by continued possession, 1945. rent dependent on life, 825. effect of lessor's failure to repair, 1942. life lease, 824. payable, when, 1947. tenant released from, when, 1950. repairs lessee to make, effect of failure to, 1942. when lessee to make, 1942. w^hen lessor to make, 1941. rooms, letting part of prohibited, 1950. tenant at will, as to rights of, 819. tenant for years, as to rights of, S19. tenant must deliver to landlord noti'ce served on him, 1949. term hiring lodging-house for indefinite period, 1944. of hiring, when no limit fixed, 1943. termination of tenancy at will, 789, 790. for holding over, 3345. treble rent on failure to quit after notice, 3344. vacation by tenant, for failure to repair, 1942. LAPSE OF TIME. See tit. Limitatiun of Action. bottomry lien extinguished by, 3027. definition of, 125. divorce denied because of, when. 111. extinguishes bottomry lien, 3027. , lien, not extinguished by, 2911. nuisance, not legalized by, 3490. partnership, dissolved by, 2450. presumptions arising from, maj' be rebutted. 126. proposal to contract, revoked by, 1587. LAPSED devise, 1343, 1409. legacy, 1343, 1409. LATENT DEFECTS warranty of manufacturer against, 1769. 1188 INDEX. [References are to sections.] LATERAL SUPPORT easement of, 801, 802. excavations infringing on, 832. LAUNDRY as to lien on, 3051. LAW obligations imposed by, 1708-1715. LAWYER. See tit. Attorney. LEASE. See tit. Hiring. agricultural lands, for more than fifteen years, void, 717. assignee of, remedies of lessor against, 822. building and loan associations, may make, 640. change of terms of, 827. city lots for over ninety-nine years, void, 718. property of incompetents, for ten years, only, 718. property of minor, for ten years, only, 718. property of municipality, for ten years, only, 718. for life, remedy on, 824. notice of change of terms of, 827. of agricultural lands for more than fifteen years, void, 717. of city lots for more than fifty years, void, 718. recording, 1214. reneT\-al by acceptance of rent, 1945. by continued possession, 1945. renewal of by continued possession, 1945. rights of lessees and their assignees, 823. statute of frauds, 1624. telegraph and telephone property, lease of, 540. trust, express, may lease realty, 857. LEASE AND PROFITS to receive and accumulate, 857. trust to receive and pay, 857. LEGACY. See tits. Devises anil BetiiieNts; ^V^Il.s. abatement of legacy, 1362. as to nature and designation of, 1357. annuities. See tit. Annuitle.s. demonstrative legacy, 1357. general legacy, 1357. residuary legacy, 1357. specific legacy, 1357. bequest of interest, 1366. satisfaction of, 1367. construction oT the statutes in relation to, rules for, 1370. 1189 INDEX. [References are to sections.] LEGACY (continued). estates chargeable with, 1358. order of resort to estates for debts, 1359. for legacies, 1360. for legacies to kindred, 1361. gift treated as, when, 1153. interest on, from what time, 1369. liability of beneficiaries for testator's obligations, 1?,11. possession of legatee, 1365. specific legacies and devises, 1363. when due, 1368. LiEGAIi AND MORAL OBLIGATIONS. See tit. Cousiileraliou. as to being valid considerati'on, 1606. LEGAL RELATIONS of husband and wife, alteration of, 159. LEGATEE death of before testator, effect of, 1310. LEGISLATURE dissolution of corporation by, 384. effects of, 404. examination of affairs of corporation by, 382. regulating, freights, 465. LEGITIMACY. See tit. Bastards. of children born after divorce, 194. born before annulment, 84. in wedlock, 193. who may dispute, 194. LENDER. See tit. Loan for use. * liable for defects, when, 1893. may require return of thing lent, 1894. LESSOR AND LESSEE. See tit. Landlord and Tenant. LETTER. See tit. Lessor. hiring terminated by, 1931. LETTER OF ATTORNEY. See tit. Power of Attorney. LETTER OF CREDIT addressed, how, 2859. credit given on must agree with terms of letter, 2S66. credit under must agree with terms of, 2866. definition of, 2858, 2866. direction of, 2866. either general or special, 2861. general* extent of, 2863. nature of, 2862. or special, 2861. 1190 INDEX. [References are to sections.] LETTER OF CREDIT (continued). how addressed, 2*859. liability of writer, 2860. may be a continuing guarantj", 2864. notice to writer necessary, wlien, 2865. LETTER.S containing valuables, liability of carrier, 2177. property in, 9S5. I.ETTKRS PATENT recorded without acknowledgment, 1160. , LIBEL as to what constitutes, 45. defamation, 44. privileged puVjlication. See tit. Privilegert I'liliIicalioiiH. LICENSE marriage, as to, 69, 79. of ships, 966. of street railways, 505. to take tolls, 528. IjIC'ENSE. See tits. Marriajst'; Negligence; Obligations Imposed by l>a«-. marriage without, 79. LIEN accessory to thing secured, 2909. agistor. See tit. Agistors. apportionment of, 2912. bankers. See tit. Bankers. bolts on. See tit. Other Liens. bottomry. See tit. Bottomry. bull, of owner of. See tit. Stallion. carriers. See tit. Carrier. on baggage. See tit. Baggage. ship's master may not give up, 2388. certain contracts void, 2889. compensation, holder of not ejititled to, when, 2892. confined to what, 2891. oontraet created by, 2881. may be created by, 2SS4. respecting, void, when, 2889. subject to, 2877. created by contract, 2884. creation of liens, 2881. by contract, 2884. how created, 2881. 1191 INDEX. [References are to sections.] LIEN (continued). oreatiou of Ileus (continued). lien on future interest, 2883. no lien for claim not due, 2882. definition, 2872. of general lien, 2874. of special lien, 2875. does not imply personal obligation, 2890. effect of, 2888. certain contracts void, 2898. does not imply personal obligation, 2890. extent of lien, 2891. holder of lien not entitled to compensation, 2892. transfers no title, 2888. extent of lien, 2891. extinction of by apportionment, 2913. by lapse of time under statute of limitations, 2911. by limitation, 2911. by partial performance, 2912. by performance, 2909. by restoration, 2913. by sale of property, 2910. how made, 2909. factor's li'en, as to. See tit. Factors. forfeitures of property, contract for, void, 2889. fraudulent conveyance. See tit. Fraudulent Transfer. for storage charges, 1856. future interest on, 2883. future obligation, security for, 2884. general lien defined, 2874. general or special, 2873. holder not entitled to compensation, 2892. homestead, liable for, when. See tit. Homestead. innkeepers, 1860. jack, of owner of. See tits. Stallion; Other Liens. judgment, of. See tit. Judgment. laborers. Of. See tits. Laborer's Lien; Otlier Lieus. lien for future interest, 2883. live stock, for agistor. See tit. Agistor. livery stable keeper. See tit. Liverj- Stable Keeper. logs. See tit. Logger's Lien. mortgage. See tit. Mortgage. no lien for claim not due, 2882. ofRcer, for levying writ of, 3057. 1192 INDEX. [References are to sections.] LIEN (continued). order for resort to different funds, when, 2899. other liens. See tit. Other Liens. partners, in mining-. See tit. Miuiug Partner-shlp. on shares of copartner, for firm debts, 2405. pasturing stock, for. See tit. Agistor. personal obligation, none implied by, 2890. personalty, on, for repairs of, 3052. pledge. See tit. Pleilgc. prior li'ens, 2876. priority of lien, 2876. order of resort to different funds, 2899. priority of mortgage for price, 2876. redeniptioii from lien as to, 2903. contract in restraint of is void, 2S89. how redemption made, 2905. right of on foreclosure. See tit. Foreelo.sure of SIortgriigeH. right to redeem, 2903. rights of, 3052. rights of inferior lienor, 2904. subrogation, 2903. respondentia. See tit. Re.spondeutia. sale of property to enforce, 3052. seaman's for .wages, 3055. service, as to lien for^ 3051. sheriff or other oflicers, 3057. shipmaster's, for advances, etc., 3055. special definition of, 2875. mortgage is. when, 2923. right of holder who pays prior lien, 2876. special partner, lien of, void, when, 2500. stallion. See tits. Stalliims; Other i^iens. stoppage in transitu. See tit. Stoppage in Transitu. storage, as to lien for, 1856. subject to laws of, 2877. subrogation of right of redemption, 2903, 2904. threshing machines, li'ens of workmen, etc. Sec tit. other Tilens. timber, on. See tit. I-ojjjjer's l.iens. title not transferred by, 2SSS. vendee's. See tit. A'enilee. vendor's. See tit. Vendor. MENOR damages of, as to, 3338. 1193 INDEX. [References are to sections.] LIFE AND HEALTH iNSUItANCE. See tit. Life, HenlMi, siml Accident Iiisurniice. insurable interest, 2763. assignee of life policy need have no interest, 2764. insurance upon life, when payable, 2762. as to, generally, 2762, 2763. measure of i'ndemnity, 2766. ■ notice of transfer, 2765. LIFE, HEALTH, ACCIDENT, AND ANNUITY, OR ENDOAV- MENT INSURANCE ON THE ASSESSjMENT PLAN contract of insurance, 453g. contents and effect of, 453g. contracts which may be made by, 453d. construction of chapter, 453e. deposit with state treasurer, 453e. exemption from attachment and execution, 4531<. expenses, insurance commissioner to present bills for cer- tain, 453o. fees, 453n. foreign corporations, 453i. conditions precedent to do business, 453i. license fees, taxes, and penalties, 453i. issuance, renewal and revocation, 453i. forfeiture of right to do business by failure to pay, 453g. formation of corporation, 453e. fraternal societies, exemption from this chapter, 453p. insurance commissioner to present bills for certain expenses, 4530. investments of, 453e. issuing contracts, 453e. lapsing of policies, when forbidden, 453m. legal existence before one year, wlien, 453e. limitation upon right to issue insurance, 453j. contract must be founded upon written application, 453j. false or fraudulent statements by solicitor, 453j. membership before contracts issued, 453e. penalties, 453m. pre-existing corporation's right to reincorporate, 453f. reincorporation of pre-existing company, 453f. reservation and emergency fund, 453h. accumulation of reserve or emergency fund, 453h. deposit of part of fund, 45Sli. fund must be returned to corporation, 453h. investment of emergency fund, 453h. 1194 INDEX. [References are to sections.] LIFE, HEALTH, ETC., INSURANCE, ETC. (continued), revoke authority to do business, procedure, 4531. necessary parties to, 453m. secret or fraternal society, what constitutes, 453p. statement to be filed with insurance commissioner, 4531. proceedings to be taken thereon, 4531. lilFE INSURA\"CE investment of funds of, 421, 421[.a]. LIFE INSURAXCE CORPORATIONS. See tit. Mutual Lffe, Heaiili, aud Acoirteut lusuranoe Corporatloii.s. LIGHT FOR PIBLIC USE. See tit. CurporalionM to Furuish Lig^ht for Public U.se. MKES AND DISLIKES. See tit. Wills. LIMITATION OF ACTION action to establish property, community propertj', 164. apprentice, by, for breach of contract, 273. corporation organization to be effected within one year, 358. defects, lender liable for, 1893. demand, thing returnable without, when, 1895. directors of corporation, personal liability, 309. ver of Attorney of Married AVonian. homestead stosk, may be owned by, 561. may hold stock in savings bank, 575. may make, alter, or revolte will, 1273. may transfer stock, 325. power of attorney by, 1094. proxy of, 325. remedies against. See tit. Reniedie.«i Agaiii.st 5Iarrled A\'oiiirn. savings and loan stock may be owned by. See tit. lisnid and Building- Corporations. transfer of stock by, 325. will, disposition of separate property l)y, 1272. how executed and proved, 1273. MARSHALING ASSETS as to order of, 2899, 3433. MASCULINE GENDER includes feminine and neuter, 14. MASTER AND APPRENTICE apprentice, poor and homeless minor, 268. approval of superior court necessary, when, 265. 1203 INDEX. [References are to sections.] • MASTER AND APPRENTICE (continued). duty to inquire into the treatment of minor apprentices, 270. enticing away apprentices, liability for, 275. hearing of complaint of apprentices, 271. homeless minor, apprenticing of, 26S. Illegitimate child may be bound by mother, 265. incapacity of parent, trial of by jury, 267. what to contain, 266. jury trial of incapacity of parent, 267. liability of apprentices for misbehavior, etc., 274. of master for breach of covenant, 273. master to deliver apprentice's money and other property, 269. master to keep apprentice in state, 269. minors may be bound, when and to wliom, 264. misbehavior of apprentice, etc., liability for, 274. persons who may bind minor with his consent, 265. an executor, when, 265. his father, 265. his legal guardian, 265. his mother, 265. poor minor, apprenticing of, 26S. power of court to discharge from apprenticeship, 272. quitting business, master released from contract of appren- ticeship, 276. release of master moving out of state or quitting business, 276. MASTER AND SERVANT. See tits. Damages; Employment; ^ Negligence. abduction of servant, 49. account, employee to, 1946. accounting by servant, 2014. apprenticeship. See ti't. Master and Apprentice. assumption of risk by servant, 1970. compensation for service without employment, 2078. from successor of employer, 1998. of employee dismissed for cause, 2002. leaving for cause, 2003. confidential employment. See tit. Trusts. continuance of service after death, etc., of employer, 1998. contract of employment defined, 1965. of services limited to what time, 1980. 1204 INDEX. [References are to sections.] MASTER AND SERVANT (continued). damages against master. See til. Damages. for breacli of indenture, 273. death of emploj-ee, 1997. of employer, 1996, 1997. of joint employee, 1991. definition of servant, 2009. delivery of employee, without demand, as to, 1987. discharge of servant, vi'hen, 2015. grounds for, 2015. disniissal for cause, compensation, 2002. grounds for, 2002, 2015. duties of employee for his own benefit, 1979. for reward, 1978. of gratuitous emploj-ee, 1975. employee not bound to deliver without demand, 1987. to follow directions, 1981. to obey employer, 1981. employment, definition of contract of, 1965. enticement of servant, 49. fellow servant, liability of master for acts of, 1970. gratuitous employee, duties of, 1975. hiring^ renewal of, 2012. term of, 2010. incapacity of employee, discharge for, 2000. of employer, relation not determined by, when, 1991 of master terminates relation, 1996. indemnifying employee employer not required to, when, 1970. required to, when, 1969. indemnity against acts of servant, contract of, 2775. injury to servant by third person, 49. forbidden, 49. joint employees, survivor's duty, 1991. master, liability to servant, 1969. mutual rights to protection, 49, 50. 1205 INDEX. [References are to sections.] MASTER AND SERVANT (continued). uegligence of employee. discharge for, 1990. liability of master for, 1990. negligence of master, liability for, 1971. obey, employee required to, 19S1. power of attorney, 1977. preference to be given employer's interest, 198S. presumed to be monthly, when, 2011. renewal of hiring, 2012. renewal of term of employment, 2012. servant definition of, 2009. to pay over without demand, 2011. service without employment, as to, 2078. skill degree employee required to use, 1984. degree required of employees, 2071. substitute employee liable for, 1989. surviving employee, as to duty of, 1991. term of employment, 2010, 2011. term of hiring, 2010. teriniuatiou of relation at will, 1999. by death or incapacity of employer, 1996. by employee for fault, 2001. by employer for fault, 2000. death of employer does not, when, 199fi, 1697. what works a, 1999. term of service, 2013. time of employee belongs to master, 2013. title to things acquired by employee, 19S5. usage, employee to conform to, 1982. MASTER, SHIP'S. See tit. Ships and Shipping. MATKS AND SEAMEN. See tit. Seamen. certificate by master in favor of seamen on loss of ship, 2059. death during voyage, 2062. definition of mate, 2048. of seamen, 2049. desertion of ship without cause, forfeits wages, 2063. disabled seamen entitled to wages, when, 2060. how engaged and discharged, 2050. law governing seamen, 2066. maintenance of seamen during sickness, 2061. not bound' to go to sea in unseaworthy vessel, 2051. 1206 INDEX. [References are to sections.] MATES AND SEAMEN (continued). not to lose wages or lien by agreement, 2052. seamen cannot ship goods, 2064. special agreement with seamen, 2053. theft by forfeits wages, 2063. ' ■wages, forfeiture of, how, 2063. not lost by wreck, when, 2058. of seamen depending on freightage, 2054. where voyage is broken up before departure, 2056. when wages of mate and seamen to begin, 2055. wrongful discharge of, 2057. MAXIMS ■ of jurisprudence, 3509-3543. MAYOR marriages may be solemnized by, 70. may take acknowledgments, 1180. MEANDERS. See tit. AVaters, Bouiiilarics by. MEASURE OF DAMAGES for breach of contract, 3300. breach of agreement to buy personal property, 3311. to buy real property, 3307. to convey real property, 3306. to pay for personal property sold, 3310. to sell personal property, 3310. where not paid for, 3311. vi'here paid for, 3311. breach of carrier's obligation to deliver, 3315. to receive goods, 3315. breach of contract to pay liquidated sum, 3302. of covenant against encumbrances, 3305. of covenant of seizin, 3304. of promise of marriage, 3319. of warranty of authority, 331 S. of warranty of quality of personal property, 3313. for special purpose, 3314. carrier's delay, 3317. di'shonor of foreign bill of exchange, 3303. must be certain, 3301. for T«-roiigs breach of obligations other than ccmtract, 3333. as to generally, 3333, 3334. conversion of personal property, 3336. application for benefit of owner, 3337. 1207 INDEX. [References are to sections.] MEASURE OF DAMAGES (continued). for wrongs (continued). damages for, lienor, 3338. for seduction, 3339. injuries to animals, 3340. wrongful holding over, 3335. wrongful occupancy of real property, 3334. MECHANIC'S L,IKN assessments by, 592d. by-laws of, 592c. capital stock of, 592. certificates of, 592. formation , and powers, 591. organization, 591. poTvera to acquire, use and sell property, 592b. which may be conferred on trustees, etc., 592a. pre-exi'sting corporations may come in under, 592e. stockholders rights and liabilities, 592. MECHANICS' LIEN as to regulation of, 3059. homestead liable to. 1241. MEETING STEAMERS. See tit. Rules of Navigation. "MEMBERS" AND "STOCKHOLDERS." See tit. Corporations. MEMBERSHIP in co-operative corporations, 653u. of co-operative agricultural, etc., associations as to generally, 653n. conditions of, 653p. fee of, 653q. qualifications of, 653p. transfer of, 653n. MEMORANDUM. See tits. Auctioneers; Statute of Frauds. binds parties, when. 179S. to contain what, 1798. declaring a trust, 2254. of sales by auctioneer, 1798. on contract of sale of personal property, 1739, of real property, 1741. MENACE. See tit. Contract. as to what constitutes, 1570. consists in what, 1570. merchandise, warranty implied as to, when, 176S-1771. rescission for, 1689. 1208 INDEX. [References are to sections.] MENTAL CAPACITY. See tit. Wills. MENTAL DISEASE. See tit. Wills. MERCHANDISE not in existence, warranty as to, 176S. MERGER of interest destroys liiring, wlien, 1932. destroys servitude, 810. METER rigtit to inspect gas, 631. MILL-SITE location of, 1426J. record of location, 1426k. MINE. See tits. Miues; Mining Corporations. claims. See tit. Mining- Claim. affidavits of work upon and recording, 1159. liydraulic. See tit. Hydraulic Mining. recording notice of location of, 1159. affidavit of work upon, 1159. fixtures attaclied to, 661. mortgage of macliinery in, 2955. notices of location, 1159. partnership in, 2511, 2518. MINING. See tits. Lode Clainisj Placer Claims. MINIMUM CAPITAL. See tit. Corporations. required to be paid in before incorporation, 290a. MINING CLAIM. See tits. Location Notice; Lode Claims; Pin- cer Claims; Tunnel Right. affidavit of worli, 1159. recorder's fee for, 1426n. amendment of notice of location, 14261i. certificate of, recorder's fee, 1426n. delinquent co-o^vners noti'ce to, 1426o. payment by, 1426o. development work, neglect to perform, 1426s. location of notice of, amendment to, 14261i. recorded without acknowledgment, 1159. mill-site. See tit. Mill-Site. mining district, effect of statute on, 1426r. neglect to perform yearly work, 1426s. ^ record of location of copies of as evidence, 1426q. to be received in evidence, 1426p. 1209 INDEX. [References ave to sections.] MINING CLAIM (continued), record of yearly work, 142Gm. recorder's fee, 1426n. recording- notl'ce of location, 1159. surveyed claims, 1426i. yearly ivork required as to generally, 14261. neglect to perform, effect, 1426s. MINING CORPORATIONS balance sheet to be kept and posted, 5S8. books and balance sheets to be kept by secretary, 588. books and papers, right of stockholders to inspect, 588. stockholder's right to inspect, 588. cou8oliilatiou certificate of consolidation, filed where, 587a. to be signed by whom, 587a. consent of stockholders in writing, 587a. effect of, 587a. election of trustees on, 5S7a. limitations on, 587a. notice must be giveUj 5S7a. proceedings on, 587a. discovery of ore, superintendent to report, 588. exaiiiiuntiou of iiiiue as to right of, 5S9, 590. effect of refusing stockholder right to make, 589, 590. liability for refusal of right of, to stockholders, 590. stockholders' right to inspect books, 588. to make examinati'on, 589, 590. failure of superintendent to obey orders, removal, 589. liability of officers and directors, 590. monthly account to be filed by superintendent, 588. report attached to account open to inspection, 588. what must show, 588. monthly balance sheet to be verified by oath of whom, 588. receipts and disbursements^ account of to be kept, 588. removal of superintendent in failing to obey orders, 589. reports and accounts by superintendent, 588. right to examine bocdcs, 589. stockholder's ri'ght to visit mine with expert, 589. duty of superintendent, 589. liability of officers and directors, 590. refusal to permit examination, damages, 590. removal of directors for refusal, 590. 1210 INDEX. [References are to sections.] MINING CORPORATIONS (continued). stock issued at transfer agencies, .587. surrender of certificate on transfer, 587. transfer agencies of, 586. may establish in other states, 586. MINING DISTRICTS effect of statute of 1909 on, 1426r. MINING PARTNERSHIP contract i'n writing binding, when, 2519. exists, w^hen, 2511. express agreement not necessary to constitute, 2512. governed by owners of majority of shares, 2520. lien of partners, 2514. mine partnersliip property, 2515. owners of majority of shares govern, 2520. partnership not dissolved by sale of interest, 2516. profits and losses, how shared, 2513. purchaser takes subject to liens, when, 2517. takes with notice of lien, when, 2518. sale of interest does not dissolve partnership, 251 6. MINOR. See tit. Infant. cannot disaffirm certai'n obligations, 37. cannot disaffirm contract for necessaries, 36. cannot give a delegation of power, 33. contracts by, disaffirmance. See tit. Di.*iaflirniniic<'. as to generally, 34. custody of, 32. lease of city lot of for more than ten years, void, 718. liability for wrongs, 41. may hold stock in savings bank, 575. not liable for exemplary damages, 41. period of minority, how calculated, 26. personal ri'ghts, generally, 43. status of, how changed, 28. who are, 25. 3IISOEMEANOR. lo entice away apprentices. See tit. >IiiNtrr and ApiirciiHeo. foreign building, etc., agent not complying willi statute com- mits, 646. savings corporation, president of, guilty of, when, 581. MISNOMER does not invalidate coiporato instruments, when, 357. ■^IISREPRESENTATION. See tit. Fraud. 1211 INDEX. [References are to sections.] MISTAKE as affecting right to enforcement of specific performance, 3391. disregarding erroneous parts of instrument, 1640. either of law or fact, 1576. in wills, 1340. of fact as to what constitutes, 1577. of foreign laws, as to, 1579. effect of, 1579. of law as to what constitutes, 157S. property acquired by, 1713. of contract for, 1689, 3407. specific performance, prevents, when, 3391. trust arising from, 2224. will, in, effect of, 1340. MISTAKE OF FACT. See tit. Recovery Back of Money Paid. MOB VIOLENCE. See tit. Strikes, Mob Violence, Etc. MOCK AUCTION. See tit. Auction. MONEY. See tit. Loan. coterminous owners bound to maintain, 841. duty of coterminous owners in relation to, 841. MORAL OBLIGATION. See tit. Obligation. as a consideration, 1606. MORTGAGE. See tits. Lien; Mortgage of Personal Property; Mortgage of Real Property. adversely held, property may be, 2921. as to what property may be mortgaged, 2921. assignment of debt by acknowledgment and recording, 2936. effect of to pass security, 2936. record of is notice, 2934. secured, passes, mortgage, 2936. assignment of, recording, 2934. benevolent association, given by, 598. bottomry and respondentia not affected by chapter on mort- gages, 2942. building and loan association may make, 640. certificate of discharge, 2939. by foreign executors and administrators, 2939%. discharge of mortgage by foreign executors and adminis- trators, 2939%. satisfaction of mortgage, 2941. deed absolute is, when, 2924, 2925. 1212 INDEX. [References are to sections.] MORTGAGE (continued). defeasance, transfer made subject to, 2925. definition, 2920. ill.seharse of by foreign executors and administrators, 293914. certificate of, 2939. form of, 2938. how made, 2938. liability for refusal to execute certificate, 2932. of record, how, 2937, 2940. recording discharg'e, 2940. does not entitle mortagee to possession, 2927. duty of mortgagee on satisfaction, 2941. encumbrance included in term, 1114. execution by attorney under power, 2933. execution, formalities of, 2922. executors and administrators, foreign, discharged by, 2939%. extends to and includes what, 2926. factor may not make, 2368. foreclosure. See tit. Mortgage ForecloMiire. as to, 2931. foreign executors and administrators, discharge of by, 2939 i/^. form of, 2948. of discharge, 2938. homestead liable for, when, 1241. mortgaged how, 1242. of lunatics. See tit. HomeNtead. how discharged, 2938. Insurance on property that is, 2.541. is subject to the general law of liens, 2877. lien of special, when, 2923. lien on what, 2926. must be in writing, 2922. not a personal obligation, 2928. notice to mortgager not given by recording assignment, 2935. of chattels. See tit. Morfgapre of Personal Property. of property by wagon road corporation, 522. on what a lien, 2926. passes by assignment of debt secured, 2936. personal obligation, is not a, 2928. possession, mortgagor entitled to, exception, 2927. power of attorney to execute, 2933. power of sale conferred upon mortgagee, 2932. 1213 INDEX. [References are to sections.] MORTGAGE (continued). l»OT»-er of sale, etc. (continued). when deemed part of tlie security, 858. priority of given for purcliase money, 2897. property adversely held may be mortgaged, 2921. property that may be mortgaged, 2947. railroad, mortgage by, 456. recording, as to, 1163. in general, 2952. of assignment of, 2934. not notice to mortgager, 2935. of certificate of discharge, 2939. of defeasance, 2950. » redemption from sale under foreclosure of, 2903-2905. right of, 2931. religious association, execution by, 598. respondentia, is not subject to the law, 2942. satisfaction, duty of mortgagee on, 2941. as to generally, 2942. shipmaster's power to hypothecate, 2377. ships, mortgage of, 2971. recording of necessary, 2958. statute of frauds as affecting, 2922. subsequentlj' acquired title, covered by, 2930. title, subsequently acquired, covered by, 2930. transfer made subject to defeasance is, 2925. transfer, when mortgage and when pledge, 2924. trust, an express, to mortgage real property, 857. wagon road corporation, executed by, 522. waste, not permitted, 2929. ^ writing, must be in, 2922. MORTGAGE FORECLOSURE rigiit of redemption, 2931. MORTGAGE IXSURAXCB amount of securities that may be guaranteed, 453cc. appraisement of property of, 453gg. authority of insurance commissioner necessary, 453aa, 453cc. capital stock required to do business, 453cc. of another company, may not invest in or hold, 453cc. certificate of authority to do business necessary, 453aa, 453cc. certificate of mortgage participation and guaranteed securi- ties, legal investments, 453ff. "debts," policies of mortgage insurance do not constitute of the company, 453cc. 1214 INDEX. [References are to sections.] MORTGAGE INSURANCE (continued). definition of entire mortgage guaranty, 453bb. mortgag-e insurance company, 453bb. mortg'age-participation certificate, 453bb. policy of mortgage insurance, 453bb. "security," as used in mortgage insurance statute, 453bb. dividends, restriction on making, 453dd. entire mortgage guaranty, defined, 453bb. first lien security only, 453cc. guaranteed securities made legal investment for trust funds, etc., 453ff. "indebtedness," policies of mortgage insurance do not con- stitute of the company, 453cc. investments by permitted, 453ee. kind and amount of securities that may be guaranteed, 453cc. mortgage insurance company, defined, 45 3bb. mortgage-participation certificate defined, 453bb. must accumulate a surplus, 453dd. not to own or hold stock of another company, 453cc. not to loan to officers, 453cc. penalties for violations of statutory provisions, 453cc, 453gg. pblicies of mortgage insurance do not constitute "debts" of tlie company, 4 53cc. policy of mortgage insurance defihed, 4r)3bb. quarterly reports to inNurnuoe ooninilsslouer as to generally, 4.53gg. when policy entire mortgage guarantee, 453gg. when policy mortgage-participation certificate, 453gg. securities deposited with state treasurer, 453ff. substitution of securities, 453ff. subject to insurance laws, 453aa. substitution of securities of, 453ff. supervision of banking department, 453ff. surplus, must accumulate a, 453dd. trust funds may be invested in mortgage-participation certi- ficates and guaranteed securities, 4.53ff. MORTCAGK OF PERSONAL PROPERTY. See tit. Chattel Mortgage. as to what property may be mortgaged, 2955. certain sections not api)licable to certain sliips, 2971. continuance of lien of mortgage on crop, 2972. distribution of proceeds of sale under process, 2970. foreclosure, distribution of proceeds of sale under, 2070. foreclosure of, how made, 2967. 1215 INDEX. ' [References are to sections.] MORTGAGE OF PERSONAL PROPERTY (continued), form of, 2956. levy upon mortgaged property, 2968. limitations on right of levy, 2969. may be recorded, 2963. may be taken by mortgagee as a pledge, when, 2966. mortgage of ships, void as to third person, when, 2958. mortgaged property may be levied upon, 2968. property exempt from rriortgage, when, 2965. recordation certified copy may be recorded, when, 2964. in different places, 2962. of common carrier, 2961. personal mortgage may be recorded, 2963. where property in transit, 2960. where to be made, 2959. ships, certain sections not applicable to, 2971. validity of, certain, 2973. void as to third persons, when, 2957. where recorded, 2959. in different places, 2962. of common carrier, 2961. where property in transit, 2960. MORTGAGE OF REAL. PROPERTY as to what interest may be mortgaged, 2947. defeasance must be recorded, 2950. form of mortgage, 2948. may be recorded, 2952. MORTGAGE OF SEPARATE ESTATE OF MARRIED WOMAN acknowledgment of. See tit. Grant by Married Woman. MORTGAGED PROPERTY, See tit. Homestead. MORTGAGEE assignment of to thing insured, effect of, 2541. MOTHER. See tit. Parent and Child. apprenticeship, consent to. See tit. Master and Apprentice. custody of child, consent of necessary to transfer of, 197. illegitimate child consent to adoption of, 224. entitled to custody of, 200. succeeds to property of, 1388. MOTORCYCLES franchise to construct road for, 524. MOTIVE POAVER OF STREET RAILROADS. See tit. Pro- pelling Po«-er. 1216 INDEX. [References are to sections.] MILTIPLICITV OF SUITS prevented by injunction, ;i422. MUNICIPAL. CONTRACTS. See tits. Coiitract.s; Miiiii<-l|>iil Cor- porations. MUNICIPAL, CORPORATION distinction between public and private corporation.s, 284. injunction to prevent legislative act of, 3423. lease of city lot of for more than ten years, void, 718. water company, contract with, 548-552. will, may take under, when, 1275. MUNICIPAL ORDINANCiE. See tit. Teleerapb and Telephone Corporations. MURDERER of decedent cannot .succeed, 1409. MUTUAL, BENEFIT AND LIFE ASSOCIATIONS assessments, right to levy, 453. filing articles of incorporation, 452a. formation of, 452a. levying of assessment, 453. by-laws which may be made regarding, 453. loaning funds and purchasing real estate, 453. what articles must show, 452a. MUTUAL BENEFIT SOCIETY. See tit. Relii^ioiis, S«»clal, an«1 Benevolent Corporations. MUTUAL BUILDING AND LOAN ASSOCIATION. See tit. Land and Building' Corporation.s. MUTUALITY of consent in contract, 1580. of intent, must be given in interpretation, 1635. MUTUAL LIFE, HEALTH, AND ACCIDENT INSURANCE COR- PORATIONS alteration of number of directors, 443. associations and secret orders not insurance corporations, 451. benevolent or fraternal co-operative societies are, 451. by-laws may prescribe limitation of stock held, 445. fixed, deficiencies in, 439. commission allowed, 441. commission and interest allowed, 441. declaration of fixed capital stock to be filed, 440. directors, number of, how altered, 443. dividends, how made, 456. filing of declaration of fixed capital stock, 440. guarantee fund of, 437. guaranty notes and interest, 441. ■"•" 1217 INDEX. [References are to sections.] MUTUAI^ LIFE, ETC., INSURANCE CORPORATION (continued), insured entitled to vote, wlien, 442. interest allowed, 441. investment of capital stock, 421, 421[a], 444. issued within the state, 450. penalty for failure to comply with statute, 450. proof of death within a year, 450. limitations as to holding' of stock, etc., 445. premiums agreements in policies as to, 446. how payable, 446. subscription may be rejected, 437. to furnish data to insurance commissioner, 447. retaliatory clause, 449. vote, insured entitled to, when, 442. NAME certificate of, of partnership, 2469. change of, conveyance made, how, 1096. child adopted, taken by, 228. error in, of corporation, 357. fictitious, of partnership, 2466-2471. of corporation to be stated in amended article.'*, 289. of partnership, as notice of dissolution, 2454. partnership under fictitious, 2466-2471. NAVIGATION rules of. See tit. Rules of Navlg-ation. NECKSS,\RIES. See tits. Hu.sband and \Vlfe; lufant; Neee.s- saries for Infants. husband's liability for, 174. infant, contract for by, not disaflirmable, 36. lunatic's liability for, 38. parent not liable for, furnished child, when, 208. promise by child to pay for those furnished parent, 206. third person may furnish to cliild, when, 208. NECESSARIES FOR INFANT contract for by infant, cannot disaffirm, 36. NEGLIGENCE. See tit. Obligations luiposed by Law, agent's principal liable for, when, 2338. apprenticeship annulled for. See tit. Master and Aiipreiitiee. borrower to repair injuries, when caused l^y, 1889. carrier, not exonerated from, 2175. degrees of, 16, 17. depositary, liability of for, 1S40. divorce for neglect. See tit. Dlvort-e. 1218 INDEX. [References are to sections.] NEGLIGENCE (continued), employee, liability for, 1990. hirer liable to repair injuries cau.sed by, 1929. in insurance, as to, 2629. insurer, not exonerated by, 2629. liability of depositary for, 1840. pilot's shipmaster liable for, 2.'?81. raises an involuntary trust, when, 2221. shipmaster, liability for, 2383. wilful, 1714. \KGOTIABL,E COA'TRACT, See tits. t'onJriM-tN; Vejiolinhle In- struments. NEGOTIABLE INSTRUMENT-^ absolute, must be to be valid, 3088. at'eeptanee admissions by, 3199. allonge, 3110. bill of, 3194. by refusal to return, 3195. by separate instrument, 3196. concealment of acceptance, 3198. for honor, 3205-3207. does not excuse notice, 3207. how made and enforced, 3205, 3206. holder entitled to on face of bill, when, 3194. how made, 3193. of bill, 3194. promise to accept equivalent to acceptance, when, 3197. qualified, effect of, 3195. sufficiency of, when, with another's consent, 3195. what is admitted by, 3199. what sufficient with consent of holder, 3195. acceptance of payment of bill for honor, 3205. holder bound to, when, 3204. how enforced, 3206. how made, 3205. notice of dishonor not e.xcused tiy acceptance for honor 3207. when may be, 3203. allong-e, 3110. alternative instrument, 3090. bank notes, 3261. bearer, instrument pa.\al)l>> to, const nui idii, :'.l(il. l>ills, acceptance of, 3193. 1219 INDEX. [References are to sections.] NEGOTIABLE INSTRUMENTS (continued). attorney, fees and costs may be provided for in, 3088. bank notes. See tit. Dank Notes, as to, 3261. bill days of grace on note allow^ed, 3181. deemed a note, wlien, 3246. defined, 3171. in parts of a set, 3173. of lading, as to, generally, 2127. of exchange. See -tit. Bills of Kxohauge. as to, generally, 3171-3177. set, to be in a, 3174. must be in a, when, 3174. blank indorser's liability, * 3125'. bonds. See tit. Bonds. are negotiable, 3095. cancelation of acceptance, 3198. carrier liability for loss of, 2177. liability toward, 2201. classes of, enumerated, 3095. collection agent's duties, as to, 2021. consideration, effect of want of, 3131. contents of, as to, 3093. damages for dishonor. See tit. "Dishonor of." certificate of stock. See tit. Certificate of Stock. certificates of deposit. See tit. Certificates of Dei»o.«4it. as to, 3261. Is a, 3095. checks. See tit. Cheeks. definition of, 3254. consideration presumption of, 3104. days of grace are not allowed, 3181. definition of, 3087. demand, effect of want of on iirini'ipal debtor. 3130. different clas.ses of, 309.''i. flishouor of additional time for by indor.see, 3150. after indorser's deatli, 3145. definition, 3141. effect of notice of dislionor, 3151. 1220 INDEX. [Keferences are to sections.] NEGOTIABI.E INSTRUMENTS (continued). tlinhoiior of (continued). execution or prevention of notice, 3155. delay, when excused, 3158. waiver of presentment and notice, 3159. waiver of protest, when excused, 3155, 3156. form of notice, 3143. how given by agent, 3149. how served, 3144. given in ignorance of death, valid wlien, 3146. notice of, 3142. by whom to be given, 3142. to be given, when, 3147. v^^hen to be mailed, 3148. date any may be inserted, 3094. may be inserted by maker, 3094. nominal, as to, 3094. not essential, 3091. days of grace. See tit. Days of Grace. death of maker on nominal date, effect of, 3094. destruction of, effect of by indorser, 3115. dishonor of bill payable after sight, presumption of, wlicn, 3133. of foreign bill, damages for, a.s to, 3234-3238. what is, 3141. drawee, in ca.se of need, 3172. drawer, rights and obligations of, 3177. effect of want of demand on principal debtor, 3130. excuse of presentment and notice in bill. See tits. BUIm; For- elg^n Bills. extinction of. See tit. BxtlncUoii of Ohll{?a41oii.>4. by payment, 3164. when extinguished, 3164. ■fictitious payee, 3103. foreign bills. See tit.'^. Hills; Foreign HIIIn. guaranty as to collectibility of, 2800-2802. original, what is, 2794. incapacity of maker at time of iioniinal (l;ilc, clTi-ct of, 3094. indorse. See tit. indorsenieiii. as to agreement of, 3112. ludorttee in due course, who i.s, 3122. rights of, 3124. 1221 INDEX. [References are to sections.] NEGOTIABLE INSTRUMENTS (continued). indorsee (continued). of check, after maturity, 3255. privy to contract, 3120. rights of tliose of guarantor, ."ilL'O. indorsement. See tit. Indor-scment. as to, 3108. indorser destruction by, 3115. implied warranty by, 3116. liability of, generally, 3116. liability of payee, when, 3117. inland bill, definition of, 3238. interest to be on amount of protested bill, 3236. kinds of, enumerated, 3095. maturity apparent, as to, 3132. of bill payable at sight, 3134. of note, 3135, 3136. may be an alternative, 3090. may contain a pledge, etc., 3092. money, payment in must be provided for, 3088. inust be for unconditional payment of money, 3088. must be payable in money, 3088. must contain, what, 3093. must not contain any contract, 3093. nominal date of, 3094. note applicability of code jirovisions to, 3247. definition of, 3244. notice delay in presenting, 3248. effect of giving, 3151. notice excused, when, 3155, 3156, 3220. as to generally, 3155, 3156, 3220. given in ignorance of death of indorser, 3146. how served, 3144. after death of indorser, 3145. inures to benefit of others, 3151. not excused by acceptance for honor, 3207. of di.shonor of additional time for, 31. 'lO. by agent, 3149. by subagent, 3149. 1222 INDEX. [References are to sections.] NEGOTIABLE INSTRUMENTS (cuntinuetl ). uotioe excusiMl, >vheii . (continued ). of dishouor of (continued). delay excused, when, 3150. served, how, 3144. time of mailing-, 3148. time of serving-, 3147. waived, how, 3155. waiver of, as to, 3159. who may give, 3142. how construed, 3155. parties may waive provisions of code, 3268. partner, liquidating- firm, powers as to, 2461. parties, waiver of code provision by, 3268. to order, how construed, 3101. where bill is, 3175. payee fictitious, 3103. must be ascertainal)le, 3089. who is, 3089. payment extinguislies obligation, 31 04. for honor, 3203. declaration of, 3233. instrument to be surrendered, exception, 3137. of part of bill in sets, 3173. place of, not specified, 3100. surrender of instrument may be made condition of, 31 : time of, not specified, 3099. time or place of, designation not necessary, 3091. to excuse or order, how construed, 3101. place of payment, 3099. not specified, 3100. pledgee of as to collateral, 3092. of collateral, may be contained in, 3092. presentation for payment, 3130, 3131. apparent maturity, 3132. of bill payable at sight, 3133. of note, 3135. dishonor of bill, presumptive, 3133. liow made, 3131. indorsement after maturity, demand of payment, 3135. after sight or demand, 3136. 1223 INDEX. [References are to sections.] NEGOTIABLE INSTRUMF:NTS (continued). preseutatioii for payment (continued). • surrender of instrument as condition of payment, 3137. maturity apparent, 3132. maturity of bill payable at sigrht, 3134. presentment of bill for acceptance, 31 80. how made, 3186. to joint drawer.s, 3187. when must be made, 3189. when to be made to drawee in case of need, 3188. presentment of bill for payment. See tit. BIIIh. of bill payable at a particular company's, 3212. of delay In, in certain cases, 3213. in other cases, 3214. when not accepted, where to be made, 3211. presumptive dishonor of bill payable after sight, 3133. promissory notes. See tit. Promissory Note. definition of, 3244. prote.st bill, form necessary, 3225. by whom to be made, 3226. how made, 3227. notice to be given, how, 3231. time of making-, 3229. waiver of, 3159, 3232. when excused, 3230. where made, 3228. surrender of instrument a condition of payment, 3137. time of payment, 3099. to what title is api)licable, 3086. unconditional, instrument must be, 3088. unindorsed note, when negotiable, 3102. waiver of code provisions, 3268. w^areliouse receipt, is, when, 1858f. what instrument must contain, 3093. NEGROES OR MULATTOES marriage with whites void. See tit. Marriage. as to generally, 60. NEUTER GENDER included in masculine, 14. NEUTRAL PAPERS in marine insurance, implied warranty of, 2688. NEWSPAPER PUBLICATIONS. See tit. Privileged Piiblieatlon NIECES. See tit. Nephews. 1224 INDEX. [References are to sections.] AOMIN A I, I).\M\(JK.S. See tit. UaiiisiKcs. >OX-]VKOOTIAHliK IXSTRUMKXT transferability, 1459. XOX-PROFIT CO-OPKR ATIVIO, KTC, ASSOCIATIONS. See tit. Co-Operadve \K'rit*iiHiiral, I'Mf., AMsociationM. NON-PROFIT CO-OPIORATIVK CORPORATIO \S. See tit. Co- operative Corporal ions. NON-RKSlDK\T adoption proceedings by, 224, 226. alien inheriting' claim of to be made, wlien, 672. assig'nment for creditors. See tit. AsNi|?nnient for Itenefil of Creditors. transfer of stock by. See tit. Stock, Trau.sfer of. as to, g-enerally, 326. "NORTH." See tit. Deeds. NOTARY PURLIC acknowledgment may be taken by, 1181, 1182. in the state, 1181. out of the state, 1182. out of the United States, 1183. bill of exchange, payable at office of, wlien, 3176. presented by, when, 3226. presented to, when, 3188. making protest, must g'lve notice, how, 3229. offer of performance to, 1487. protest by, how made, 3226. NOTE. See tit. Nesotiable Inslrunteut. NOTICE. See tits. Actual Notice; Const met ivc \o(lcc. abandonment of ship to insurer, 273(1. abatement of nuisance for, 3.503. action, not necessary before but actual, what is. is. actual or constructive, 18. adverse claim, to deposit, 1825. agent to, is notice to principal, when, 2332. appropriation of water, as to, 1415, 1416. assessment, of stock, 335-341. by carrier where freight not delivered. See tit. Carrier of Property. as to, 2120. carrier, necessar.\- to in stoppage in transitu, 3079. change of name, as to, and sufficiency of, 2454. change of place of business by corporation, notice on. 32Ia. consolidation, of mining corporations, as to, 587a. constructive. See tit. Constructive Notice. 1225 INDEX. [References are to sections.] NOTICE (continued). delay in, waived how, 2636. delinquent co-owners of mining' claim, (o, 1426o. depositary, must be given by, to real owner, when, 1826, MOTli. directors and stockholders to post, 320. dishonor of. See tit. Negotiable Instrnment.s. duty of gratuitous depositary, termination by, 1835. either actual or constructive, 18. ejectment without, 793. election of directors, 302. filing of inventory of wife's property, as a, 160. form of, 3143. freight, of arrival to be given to consignee, 2120. of storage of, to be given to consignee, 2121. hirer of personal projierty, repair by after, 1957. of real property, repair by after, 1942. hiring, may be terminated by, 1946. innkeeper exempted from, how. See tit. Innkeener. inquiry, what sufficient to put one on. See tit. Constructive Notice. in quo warranto proceedings against corporation, 315. instruments, purchaser with, effect, 1228. insurance of loss under, 2633. defects in may be waived, 2635. lease, change of term of by, 827. letter of credit, to writer of to be given, when, 2866. life insurance policy, to be given on transfer of, 2765. not necessary, when, 793. of appropriation of waters, 1415, 1416. of assessment of stock. See tit. Assessment of Stoclc. of dishonor of negotiable instrument, by whom to be given, 3142. of hearing of petition to sell homestead. 1247. of meeting of board of directors. See tit. Directors, Board of. of meeting of corporation, 302. to remove directors, 310. of partnership dissolution, 2453, 2454, 2509. of renunciation of profits, effect of, 2417. of thing found, 1865. pledge, as to sale of, 3002. principal, notice to agent is notice to. when, 2332. purchaser for value without, rights of, 856, 869. 1226 INDEX. [References are to sections.! NOTICE (continued). record of conveyance as, ]206. of assignment of mortgage. See tit. '♦loriKaue. of instrument as, 1213. of intention of re-entry, 791. of place of delivery, 1756. record of defectively-executed instrument iiiiii.iits nciticf, IL'07. record of sale, to depositor, when, 18:',8. of selection of alternatives, 1449. served on tenant to be delivered tci lan(ll<)r iiaw. as to, generally, 1708. infant cannot disaffirm, when, 37. interest, stopped by offer to perform, 1503. 1229 INDEX. [References are to sections.] OBLIGATIONS (continued). joint and several effect of release of one, 1543. joint, when, 1431. presumption in favor of, 1431. several, when, 1431. law. See tit. Obligation Imposed by La^v. imposes what, 1708-1717. operation of, created and enforced by, 1428. mistake. See tit. Mistalve. non-negotiable instrument may be transferred, 1459. covenants running with land, 1461. for benefit of property, 1462. to pay rent, 1463. what are not, 1466. what constitutes lease running with land, 1464. novation. See tit. IVovation. offer of performance and effect of, 1485. payment. See tit. Payment. pecuniary extinguished by tender, wlien, 1500. performance of. See tit. Kxtinction of Obligations by Per- formance. property as to, 1458. receipt, right to require on performance of, 1511. refusal to accept performance. See tit. Elxtingulshment of Obligation by Performance. release extinguishes, 1541. satisfaction, definition of, 1523. part performance in, effect of, 1524. statute of frauds in relation to, 1624. substitution of new. See tit. Novation. as to effect of, 1531. substitution of parties, 1531. transfer as to, generally, 1458. covenants running witli land. See tit. Covenants Running tvlth Land. as to generally, 1468. of burden of, 1457. of non-negotiable instrument, 1459. of obligations, rights of, 1457, 1458. of rights arising out of, 1458. offer of performance, waiver of obligations of, 1501. unlawful conditions, effect of, 1441. 1230 ZJ..J*' INDEX. <■ [References are to sections.] OBLIGATIONS (continued). when performance excused, 1440. waiver of oblig:ations on offer of performance, l.'iOl. OBLIGATIONS ARISING FROi^I IVVRTK^l'IiAR TRA \S.\CTIO\S agency. See tit. ARem-y. carriage. See tit. farriaKc. deposit. See tit. Deposit. * exchange. See tit. K.\<'haiiKe. guaranty. See tit. Giiarant.t. hiring. See tit. Hirinsr. indemnity. See tit. Indemnity. insurance. See tit. ln.suranee. Hen. See tit. I.ien. loan. See tit. Loan. negotiable instruments. See tit. Negotiable InNtriimeuts. partnership. See tit. I'artncr.sliip. sales. See tit. Sales. service. See tit. Serviee. trust. See tit. Trust. OBLIGATIONS IMPOSED BV LAW deceit on the public, 1711. deceit, what is, 1710. fraudulent deceit, 1709. other obligations, 1715. responsibility for wiltul act.s, negligence, etc., 1714. restoration of thing wrongly acquired, 1712. demand, necessary when, 1713. to abstain from injury, 170S. t)t'CUPANCY as to title by, 1000, 1006. OFFER absolute terms necessary, l.'iS'). acceptance of, how made, 1.582. •of guaranty. 279.'). rcvsked how, 1587. when, 1586. thing to be kept separate, 1497. what deemed an, 1584. OFFER OF PERFORMANCE. See tit. ExtinKiilMhment of Olt- lieation. OFFICER lien of. 3057. of corporations. See tits. Corporate Powers; Corporations. 12.^1 INDEX. [References are to sections.] OFFlfEK.S joint authority of, constructive, 12. OLOGRAPHIC AVILL. See tits. Holographic Will; AVills. definition of, 1277. OMISSION in wills, 1340. OPERA-HOISE. See tit. Theatre. damages for wrongfully excludins from, .53. OPINIOIV EVIDENCE. See tit. AVills. OPPRESSION avoids contract, 1567-1569. exemplary damages for, 3294. interest allowed as damages in case of, 3288. OPTION as to delivery, notice to be given of election, 175G. as to place of performance, 1489. how waived, 1756. Injunction to prevent exercise of, not granted, 3423. of beneficiary, in breach of trust, 2237. of owner, on confusion of goods, to take value of thing, lOJ of payee, as to payment, 3090. of selection between alternatives, 1448-1476. waived, how, 1756. OPTIONAL CONTRACTS. See tit. Contracts. ORAL OBLIGATIONS. See tit. Statute of Frauds. ORAL TRANSFER. See tit. Transfer. ORDER directing sale of Iiomestead, wlien made, 1254. permitting sale of liomestead of insane person, 1269c. respecting- custody and support of children in divorce, 138. ORPHAN adoption of. See tit. Adoption. apprenticing. See tit. Master and Apprentice. ORPHAN ASYLUM committing children to, 607g. establishment of by corporation, 595. OSTENSIBLE AGENCY. See tit. Agency. as to, 2300. OSTENSIBLE AUTHORITY. See tit. .\sent. OTHER LIENS of banker. See tit. Baulter. as to, 3054. of factor. See lit. Factor. as to, 3053. 1232 INDEX. [References are to sections.] OTHER I.IEN'S (idiUinued ). of judgment. See tit. Jiidsrmeut. as to, 3058. of loggers, 3065. lien ceases, when, 3065. upon what lien subsists, 3065. « of mechanic. See tit. MeehanU-'s Uen. as to, 3059. of officer. See tit. Ottioer. as to, 3057. of persons in charge of stallion, 3062. action to enforce lien, 3064. claimant must file verified claim, 3063. of purchaser of real property, 3050. of seamen. See tit. Seamen. as to, 30*6. of seller of personal property. See tit. Per.«»oiial Propert.v. as to, 3049. of seller of real pniperty. See tit. Veiulor'.s Men. • as to, 3046. contract transferred, lien waived, when, 3047. extent of lien, 3048. transfer of contract waives lien, when, 304 7. of workingmen, etc., 3061. on personal property for alteration and repairs, 3052. on personal property for services performed, 3051. on ships. See tit. .Ships. as to, 3060. on threshing machine, etc., 3061. OVKR-IXSl'R.VNCE. See tit. InMiirnuee. <»AV>'ER. See tit. ShipM an«l Sbippine. OAVXERSHIP. See tit. ProdiietN of the >llnd. accumulations. See tit. .\eoiinniIatl«>u.s. alien inheriting must claim within what time, 672. as to, 980. ns to who is owner, 669. conditions, 707. precedent or subsequent. See tits. CoinlltloiiM PreeeilenI; ContlUionw Sub.>4e(iuent. conditions fixing time of enjoyment, 707. future interest, when defeated, 739. how defeated, 740. takes effect on future liappcniiigs, when, 742. when not defeated, 741. 1233 —^ INDEX. [References are to sections.] > OWNERSHIP (continued), joint interest, what is, 68;!. modification of ownership, 678. absolute or qualified, 678. absolute when, 679. of several'persons, 682. what is, 684. property of the state, 670. qualified ownership, 680. rights of owners. See tit. Rights of Owuers. several ownership, what is, 681. suspension of restricted, 770. termination of, 739, 749. who may own property, 671. O^VNERSHIP IN SEVERALTY absolute, what is, 679. qualified, what is, 680. what, is, generally, 6S1. PARENTS AND CHILD abandonment of child by parent, forfeiture of guardianship by, 246. abduction of child, 49. abuse of child by parent, remedy for, 203. action for exclusive control of children, 199. adoption. See tit. Adoption. adult children, compensation for support of, 210. allowance to parent out of child's property for its mainte- nance, 201. apprenticeship of child. See tit. Master and Apprentice. authority of parent over child ceases, when, 204. child born before wedlock becomes legitimate, when, 215. child's property, parent cannot control, 202. children, action for exclusive control of, 199. born after dissolution of marriage, 194. support and maintenance of. See tit. Divorce. compensation fol- support of adult children, 210. custody of child exclusive, when husband or wife may claim, 214. in general, 194. of annulled marriage, 84. of illegitimate child, 200. of legitimate child, 197. relinquishment of, 211. when parents are living apart, 198. wife may obtain, >yhen, 214. 1234 INDEX. [References are to sections."! PARENT AND CHILD (continued). decree in action for exclusive control of children, 199. domicile of child, determined by parent, 213. education of children, oblig-ations of parents, ' 1 96. emancipation of child, 211. guardian for minor children, appointment, effect of, 204. guardianship. See tit. Guardian and Ward. husband not bound to support cliildren of wife 1)>- former marriage, 209. legitimacy of child born after dissolution of marriage, 194. born in wedlock, 193. born of void or dissolved marriage, 194. marriage works, when, 215. who may dispute, 195. legitimatized, child born out of wedlock is, by marriage of parents, 215. liability for necessaries supplied to child, 207. when not liable, 208. marriage by infant, terminates parental autliority, 204. neces.saries furnished by parent, child's agreement to pay, 206. liability for supplied to child, 207. parent not liable for, when, 208. third person may furnish child with, when, 207. necessaries, liability for, supplied to child, 207. parent cannot control property of child, 202. parental abuse, remedies for, 203. parental authority, ceases when, 204. posthumous children. See tit. Po»le in.s(riinient. made to whom, 3089, 3164. payable to fictitious person, 3103. obligation how extinguished by offer of. See tit. iOxtiuction of Obliteration. of rent. See tit. Rents, Issues and Profits. partial payment, effect of, 1477. payee, option as to class of, 3090. surrender of instrument, when a condition of, 3137. tender and deposit, extinguish obligation, when, 1500. stops running of interest, 1504. to agents, 2335. what is payment, 1478. tender is, when. See tit. Tender. PENAL, DAHI.\GES. See tit. Damages. 1239 INDEX. [References are to sections.] l'Ka\.\L,TV carrier's liabilit\- for wiiere not starting on sclTedule time, 2172. contract witli a, specific enforcement, 3390. cruelty to animals and children, for. See tit. Sooletj- for Pre- vention of Cruelty to Animals and Children. as to, 607e. damages, penal, .j34 4-.j:J48. injunction, 3369. liquidated damages on, 1670-1671. not to be specifically enforced, when, 3369. overcharging- by street railway, for, 501, 504. penal damages. See tit. Damages. public places, denying admission to, 53. recovery, action by purchase of franchise for, 390. specific enforcement of contract with, 3390. specific relief, enforcement b\, not granted, 3369. street railway, for toll-charging, 501, 505. ticket, liability for not furnishing, 505. surety not liable beyond amount of, 2836. telegraph and telephone property, for injuring, 538. tolls, unauthorized, for, 514. treble rent on forcible detention, 3345. trespass on wagon road corporati'on's property, 520. warehousemen, liable for, w^hen, 1858f. PENALTY FOR AA'^OIDING TOLLS as to, generally, 519. for trespass on wagon road, 520. PKRFORMANCE application of. See tit. Application. condition precedent. See tit. Conditions Precedent. wlien necessary, of, 1439. conditions of proposal, acceptance by, 1584. excused how, 1511. when, 1440, 1473. holiday, falling on, effect, 11. in mode directed, as to sufficiency, 1476. joint creditors by one, 1474. to one, 1475. made as directors, sufficient, 1476. liartial. See tit. Partial Performance. payment, when to be made, 1478. 1240 I INDEX. TReff I'pnces are to sections. 1 PERFORMANCE (continued). pledgee, performance on demand, 3001. precedent conditions. See tit. fouilitions Preoedont. prevented, a.s to effect of, 1512, 1515. refusal of acceptance before offer, elTei't of. l.'il.'.. surety, compelling' by, 2846. time for, 1657. in i'n.sui'H nee. See tit. Iii.siiraiu't'. as to, 2626. I'ERlliS OF THE SEA. See tit. Marine lu-suraiu-e. PERISHABLE as to, 2199. sale of deposits that are, ISI'T. PERPETUAL, IXTEREST what is, 691. PERPETUITIES as to, 715, 716. PERSON. See tit. Evidence. PERSONAL. OBLIG.VTIOX mortgage not, 2928. PERSONAL, PROPERTY accession to, as to, 1025, 1031. acquisition, different modes of, 1001. action, thing in, is, 953, 954. agent's authority to sell includes what, 2323. chattel interest is, when, 765. defined, 953. transfer and survivorship of, 954. definition of, 663. dividends made payable to married woman, 325. estate at will, is, 765. estate in, as to, 702. ' gifts, See tit. Gifts. good will is. See tit. Good Will. includes what, 14. interest in. See tit. Proper* .v. as to, generally, 702. how protected, 947. inventions are, 980-985. kinds of personal property, 953. law governing, !)4(>. letters, personal, are, 980, 985. 1241 INDEX. [Refei-enoes are to sections.] PERSONAL PROPERTY (tontimied ). lien of one who makes, alters, etc., 3052. of vendor of, 3051. limitation of actions as to. See tit. Statute of Lilniitatiou.s. as to, 1007. minor, contract of respecting, of whicli he has not posses- sion, 33. occupancy of by title, 1006. ownership of. See tit. Ownership. private letters and writings, to whom belong, 985. productions of the mind are, !t80, 984. recovery of. See tits. Claim and Delivery; Replevin. survivorship, succession to, 954. thing in action is, 953, 954. title deeds are, 994. tort, goods, right of action, 954. transfer of buyer acquires better title tlian seller, as when, 1142. by sale, 1136. mode of, 1135. must be in writing, 1135. trade-mark is. See tit. Trade-Mark. transfer of title under sale, 1140. what is, 663. what operate as transfer, 1136. writings, private, belong to whom, 980, 985. PERSOIVAL, RELATIOXS protection of, 49. PERSONAL. SERVICE. See tits. Agents; Employer and Em- ployee; Master and Servant. must be performed by joint obligors, 1475. PERSON OF UNSOUND MIND. See tit. Contract by Per.son of Unsound Mind. contract by persons without understanding, 39-42. powers of persons whose incapacity has been adjudged. PEAV is a servitude, 801, 802. PHRASE construction of, 13. PILOT. See tit. Ships and Shipping. PIER. See tit Bridges, Ferry, >\harf, Chnle and Pier Corpor- ations. PIONEER SOCIETY land tliat may be held by, 596. 1242 INDEX. [References are to sertinn.s.] PLACE OF BUSINESS change of by corporation, 321a. procedure on change of location, 321a. resolution of change, 321a. PLACER CLAIMS. See tit. Mines. location of, 1426c. record of location of, 1 426(1. PLAT. See tits. In.- one who is, 2991. contract is to be deemed a pledge, wlu-n, 2087. definition of, 2986. * delivery e.ssential to validity, 2988. debtor, misrepre.sentation as to value of thing ple'dgcd, 2999. demand, waiver of, 3004. factor, may not, 2368. foreclosure of right to redeem, 3011. further pledge, 2999. gratuitous pledge holder, 2998. as to liability, generally, 2998. exonerated, how, 2995. in case of thing pledged, effect of, 2990. increase of thing pledged, ownership of, 2989. lien, acceptance of possession of thing, 2991. lienor may pledge property, to what extent, 2990. misrepresentation by debtor of value of thing pledged, 2999. must enforce rights of pledgee, 2996. obligation of for reward, 2997. negotiable instrument, pledge-holder not exonerated, wlien, 2995. notice of sale to pledgeor, 3002. waiver of notice, 3003. obligation of pledgee and pledge-holder for rewai-d. 2997. owner cannot defeat pledge, when, 2991. pledsre-holder as to who is, 2993. gratuitous, 2998. must enforce pledgee's right, when, 2996, 2997. obligations of, 2995. pledge-lendei-, what is, 2992. when may williilraw projterty, 2994. pledgee may forpolosi\ i-i;;lil of rcileniiil ion, ."Oil. 1243 INDEX. [References are to sections.] PLEDGES (continued). pleilifee (continued). may purchase, when, .'JO 10. may sell, when, 3000. must demand performance, when, 3001. obligations of, for reward, 2997. sale of securities by, 3006. real owner, pledge by apparent owner cannot be defeated by, 2991. sale auction at, SOO.t. before claim is due, 3009. demand, prior, necessary, 3001. must be by auction, 3005. notice- of must be given to pledgeor, 3002. of securities by pledgee, 3006. on demand of pledgeor, 3007. pledgee may purchase, 3010. may retain proceeds, when, 3009. surplus payable to pledgeor, 3008. waiver of demand, 3004. of notice, 3003. when pledgee may have, 3000. surplus to be paid to pledgeor, 3008. transfer is, when, and when a mortgage, 2924. ^vaiver of demand, 3004. of notice of sale, 3003. when pledgee may sell, 3000. when pledgee must demand performance, 3001. PLEDGEE. See tit. Pledse. PLURAL, includes singular, 14. POLICE members and officers of society for prevention of cruelty, etc., to act as, 607f. to aid .societies for prevention of cruelty, etc., 607c-. POLICY acts avoiding- policy, 2610. policy may provide for avoidance, 2611. agreement not to transfer, 2599. breach without fraud, 2612. 1244 INDEX. [References are to sections.] POLICY (continued), definition of, 2586. effect of receipt, 2598. evidence of policy may provide for, 2611. what act.s avoid, 2610. general terms of, 2591. insurance by agent or trustee, 2589. insurance by part owner, 2590. open and valued policy, 2594. open policy, what is, 2595. valued policy, what is, 2596. receipt, effect of, 2598. running policy, what is, 2597. successive owners, 2592. transfer, agreement not to, 2599. transfer of thing insured, 2593. warranties, 2603. express or implied, 2603. future as to, 2608. must be in policy, 2605. no particular word necessary, 2604. past or present, as to, 2606. performance excused, when, 2609. what must be specified in, 2587. whose interest is covered, 2588. POLICY OF INSURAIVCE. See tit. luNiiranor. POSSESSION. See tits. Con.striutive \oE contract must be, 1.596. what is deemed to be, 1596. POSSIBrLITV as to tran.sfer of, 1045. PO.STHTMOl S CHII^iD. See tit. riiborn Child. as to, 698. birth of, future interests defeated by, when, 739. deemed living at time of death of parent, 1403. entitled to take, when, 698. property rights of, 698, 739. succession by, 698, 1403. unprovided for to succeed, 1306. POWER delegation of by minor, 33. execution of, 860. POWER OF APPOIXTMEjVT effect of on future estate, 781. execution of instruments under, 1095. knowledge of by married woman, 1094. POWER OF ATTORIVEV" of married woman. See tit. Po«er of Attorney of Jlarried Woman. revocation of, 1216. to convey realty, 1094, 1096. to execute mortgage, 2935. to gratuitous employee, 1094. » POWER OF ATTORNEY OF MARRIED WOMA^i acknowledged, how, 1094. as tp, 1094. husband may be attorney in fact. 1094. POW'ER OF SALE when mortgaged, 2932. POWER TO DEVISE. See tit. AVill.s. how executed b>- terms of will. 1330. 1246 INDEX. [References are to sections.! POWERS. See tit. Corporations. of co-oi)erative agricultural, etc., a.ssociations. See tit. Co- operative Agricultural, etc., ANHoelatloii. of co-operative corporations, 65Sx. PRECATORY TRUSTS. See tits. Trusts; Wills. PRECATORY WORDS. See tit. >Vills. PREFERENCE. See tit. Debtor antl Creditor. in assignment for benefit of creditors, .34!)l-3457. of creditors in general, 34,32. of messages, 2209. payment, in, 3432. PREMIUM. See tits. Homestead Corporations; Insurance. PRESCRIPTION adverse possession. See tit. Adverse Possession. as to islands, 1016. as to title by, 1007. PRESENT INTEREST What is, 689. PRESIDING ELDER. See tit. Religious Corporations. as to, generally, 602. title acquired by, 1001, 1007. PRESUMPTION as to adequacy of damages as relief for breac;h of contract to convey, 3387. as to bill dishonored, 3135. as to extinction of contract from cancellation, 1699. child, relinquishment of control over, 211. collision, on violation of rules of navigation, 970. community property, 164. consideration for negotiable instrument. See. tit. Negotiable Instruments. as to, 3104. in written instrument, 1614. contract, uncertainty of, 1649, 16r)4. conversion, damages for, 3336. creditor, retaining part porfoi-mance, 14 77. damages adequacy of relief by, 2933. for conversion, 3336. date of delivery. See tit. Date. depositary, as to fault of, 18:16. divorce. See tit. Divorce. as to residence, 129. from lapse of time, 12ri, 126. 1247 INDEX. TReferences are to sections.] PRESUMPTION (continued). fee simple, as to passing of, 1^0.^. fraud repels all, 3441. gift causa mortis, in a, 1150. grant, as to the time of delivery, 1056. lii'fing, as to. See tits. Hiring'; Hiring; of Per.soiinl I*r«»|»ertyi HtriiiK' of Real Property. in certain cases in action for divorce, 125. in joint obligations, 1422. insurance. See tit. In.suranee. as to knowledge of prior loss, 2671. as to representations, 2574. lease as to renewal of, 1945. as to term of, 1943. " legitimacy of child, as to, 193. obligation being joint, as to, 1430. on certificate of shipmaster favor of seamen, 2059. origin of ambiguity in contract, as to, 1649, 1654. Ijartnership property, as to, 2406. real property, as to term for which hired, 194.'?. rebuttal of, 126. reformation of contract, in, 3400. servant, as to term of hiring, 2010, 2011. ship as to actual loss of, 2706. as to managing owner's compensation, 2072. transfer, without delivery of personal property, as to fraud- ulency, 3440. iiudue influeuee as to of husband. See tit. Hus1>an(l and AVife. as to of trustee, 2235. PREVENTION by injunction. See tit. lujuuotlon. of performance, as to effect of, 1511-1515. of reducing contract to writing, enforcement, 1623. preventive relief, as to when granted, 3274, 3366. PREVENTIVE RELIEF. See tit. Injunetlon. as to generally, 3420-3423. how given, 3366. how granted, 3420. not allowed to enforce penalty, 3369. PRICE. See tit. Sale. PRIEST. See tit. Religious Corporation. as to, 602. 1248 INDEX. [References are to seotionp.] PRINCIPAL. liound by instrument intended to l)in. S.e tit. -vi-^ 4.1 124<> INDKX. [References are to sections.] , PROFITS. See tit. Marine Insiiranoe. insurable interest in, 2664. PROFITS AND LOSSES. See tit. Partnership. partner's share in, 2403. PltOMISli} TO MAItRV, COIVTR.\(T, BRfc:.VCH Ol'' lireach of, damages for, 3319. PROMISSORY XOTK. See tit. Negotiable InstrumeutH. bill of exchange converted into, when, 3246. certain instruments promissory notes, 3245. certain sections of code applicable to, 3247. definition of, 3244. delay In presentment, effect of, 3248. effect of delay in presentment, 3248. PROMOTER. See tit. Corporations. PROOF OF EXECITION certificate of officer must sliow, what, 1200. evidence of handwriting must prove, what, 119M. handwriting may be proved, when, 1198. liow instrument improperly certified may be corrected, 1202. judgment proving instrument, 1203. effect of, 1204. subscribing w^itness must be personally known to officers, 1196. when instrument not acknowledged, how made, 1196. witness must prove, what, 1197. PROOF OF IXSTRITMENT. See tit. Aoknowledgments. PROPELLING POWER of street railroads, 497, 510. PIJOPERTV absolute ownersliip of, G79. accession to. See tit. Accession. accumulation of, 724-726. acquisition of, modes of, 1001. alien's right to take. See tit. Aliens. alienation of. See tit. Alienation. restraints on, void, 711. alimony, liability for, 141. alternative future interests, 696. appurtenances. See tit. .Vppurtenances. as to what is, 654. chattel Interests, what are, 765. classes of, 657. common i\efi^-<^io^ '"". 685. 1250 INDEX. [References are to sections.] PROPERTY (continued). ooiiiniou (continued). interests in, 682. what interests are, 686. community. See tit. Community I'ropert.i. ciinditions. See tit.s. ('omlitioiiN r«»ii«'urr»'ii( ; (oiMlitioii.v Precedent; Conditions Subsequent. confusion of g:oods, as to effect of, 102.5, lOoO. contingent interest in, wliat is, 695. corporation, as to right of to acquire, 360. definition of, 14, 654. division of by husband and wife on separation. Sec tit. Husband and A\ife. divorce. See tit. Divoroe. disposition of property, ]4t!, 147. enjoyment, as to fixing- time of, 707. entireties, tenants by, husband and wife ai-e, 68o. fixtures. See tit. Fixtures. found property, claimant of must prove title, 1871. future estates in, quality of, 699. future interests in defeated how, 7 40. defined, 690. in the alternative, 696. not void, wlien, 697. two or more, 696. vested or contingent, 693. what recognized as, 703. grod will. See tit. Good Will. holding by co-operative corporations, 653x. husband delits of, not liable for, 171. l)roi)erty of, not liable for wife's del)ts, 170. support of, when liable for, 170. iMi.shaiid and wife. See tit. Ilusbanil .-iiiil AXil';-. as to accumulation of, 722-733. defined, 748. increase of, as to ownership, 732. interest, as to time of creating, 688-742 inventions, as to right in, 980, 984. in wliat property may exist, 655. islands, as to ownership of, 1016. 1251 INDEX. [References are to sections.] PROPERTY (continued). joint interest in as to, 683. defined, 683. kinds of property, 657. land. See tit. Land. letters, private, to whom Ijelong, 985. limited interest, wliat is, 692. modes of acquisition, 1000. by accession, 1000. See tit. AeoeMsion. by exercise of the power of eminent domain, 1001. by occupation, 1000. See tit. Occupancy. by prescription, 1007. See tit. Prescription. by succession, 1000. See tit. Succession. by transfer, 1000. See tit. Transfer. by will, 1000. See tit. AVill. occupancy, as to title by, 1006. owner, all property has, 669. ownership absolute or qualified, 678. absolute, when, 679. classes of, 682. definition of, 654. of interest, as to time of creation, 688. several interest, what is, 681. termination of, 739-742. time of creating, 749. parents support, when liable for, 201. partnership interest in, what is, 684. perpetual interest in, what is, 691. personal property. See tit. Personal Property. posthumous children. See tit. Posthumous Children. right in property, 698. prescription, title by, 1007. present interest in, what is, 689. private writings, as to ownership of, 985. products of the mind, ownership of, 980-985. purchase of by co-opei-at ive as'rioultural, etc., associations, 653q. qualified interest, as to, 678. ownership, as to, 680. real property. See tit. Real Propertj'. right arising out of obligation, is properly, 1458. 1252 INDEX. [References are to sections.] PROPERTY (continued). separate. See tit. Separate Property. of spouses, 162, 163. .several oiviiership of as to, 681. definition of, 681. kinds of, 682. state owns, wliat, 670. riglit to liold as private pi'opr'iet(ir, (j(j'j. termination of ownership of, 7.39-742. of tenancy at will, notice neces.sary, 7.S9, 79U. time interest a.s to, 688. of creating ownersliip of, 749. title deeds, as to, 994. trade-mark. See tit. Trade-Marls. vested future interest, what is, 694. what may exist in, as to, 655. who may own, 671. wife, right to dispose of, 162. writings, private, as to property in, 980-985. PROPERTY" RIGHTS. See tit. Iliishana and AMfe. PROPOSAL. See tit. Contraet. acceptance. See tit. Acceptanoe. by performance of conditions, 1584. communication deemed completed, when, 1583. communication of acceptance, 1582. notice of acceptance as to ne<'essit.v revocation of, 1586. how made, 1587. qualified acceptance of, 1585. to contract, acceptance, effect of, 1582, 1585. what amounts to an acceptance, 1582. PROTECTIOiV against restraint and injury, 13,. of personal relations. Si-o til. I'erNoniil Kcliiiioii.s. as to general !>•, 4 9. right to use force for, 50. I'ROTKST. See tils. Mills. VcuoUjihle iiis( riiniciil.H. PROVISIONS for domestic use, implied wai'i-ant >■ in sale of. 177 1253 INDEX. [References are to sections.] PROVISIONS SIMILAR TO EXISTIIVG LAAVS how construed, 5. PROXY as to, 321b. essential to validity of, 321b. maximum period of, 321b. of a married woman, 321b. revocability of, 321b. void, when, 321b. voting by as to, generally, 212. in co-operative agricultural, etc., associations, 653p. PUBLIC contracts, interpretation of, against private party, 1069, 1652. deceit upon, as to, 1711. grant, interpretation of, against grantee, 1069. nuisance. See tit. Niiissanee. PUBLIC ACCOMMODATION rights of citizens in places of, 51. PUBLIC AMUSEMENT riglits of citizens in places of, 53. PUBLIC AUCTION in default of bidder corporation may be purchaser, when, 343. sale at, highest bidder entitled to purchase, 342. PUBLIC HIGHWAYS boundary by, what passes, 1112. PUBLIC PLACES as to rights of citizens in, 53. PUBLICATION assessment notice, as to, 335. delinquent notice of, 339. of products of the mind, effect on ownership, 983. partners, names of, 2466. partnership of certificate of special, 2482. of change of name, 2469. of notice of dissolution, 2453. privilege, definition of, 47. IH-oductions of the mind, as to, 980, 984. proof on sale of corporated stock, 348. "speoial partnership of affdavit of, 2484. of notice of dissolution of, 2509. "PUFFING" AT AUCTION as to, 1797. 1254 INDEX. [References ai'e to section?. 1 PLINITIVK DAMAGRS. See tit. Damaee.s. PUROHASK MOIVKV lien for, 3046. mortgage for, priority, 2808. PIHCHASKU. See tit. Uses anil 'rrii.««<.s. for value and without notice, wlien, 8rj6. notice. See tits. Notice; Actual an«l Constructive. of property by co-operative aprricultural, etc., a.s.sociations, 653q. aUALIPICATIONS of members of co-operative agricultural, etc., associations, 653p. QUALIFIED O^VXERSHIP what is, 680. QUALITY as to in general, 1773. damages for breach of warranty of, 3313. of domestic provisions, 1776. provisions, 1776. warranty of by manufacturer, 1768, 1769. of goods sold by sample, 17 76. on executory sale, 1777. QUANTITY warranty of. Implied, 1773. QUIET ENJOYMENT as to covenant for. See tit. r«»vennnt. as to. generallj', 14 63. implied in hiring, when. See tit. Hiring;. in executory contract of sale, 1733. QUO AVARRANTO. See tits. Co-operative Itii.siness ANSoein- tion.s; Corporations. as to, generally, 358. against co-operative business association, 54. in relation to co-operative agricultural, etc., associations, 653s. in relation to co-operative corporations, 653z. proceedings thereon and respecting coriioratioiis, 315. R.\CECOUKSE right to admission to, damages for refusal, 54. RAIL, ([uality to be used by railroad, 4!'l. R\ I Lilt) AD COMMISSIONERS to establish i-ate.s .and charges, 18'.). 12.=55 INDEX. fRefercnces are to sections. 1 ' RAILROAD CORPOR.VTIOiXS accommodations to be sufficient, 481. acquisition of otiier lands at crcssings, 472. alleys, streets, or water of city may be used, when, 472. amount of bonds or promissory notes to be issued, 456. annual report to be verified, 480. form of report, 480. assessment and transfer of stock, 45.5. bagg-ag-e to be checked, 479. damages for failure, 4 79. bonds, sinking fund to pay, 457. business, how conducted, 479. capital stock to be fixed, 458. certificate of payment of capital stock, 459. certificate of payment of fixed capital stork, 459. checks to be fixed to baggage, 479. damages for failure to so affix, 479. condemnation, 468. % consolidation with other railroad corporations, 473. articles of incorporation and consolidation, 47.3. proceedings necessary thereto, 473. articles must be filed, where, 473. inemorandum of ratification, 473. method of signing articles, 473. subrogation of new corporation, 473. crossing through railroads or liigiiways, acquisition of addi- tional lands, 472. crossings and intersections, 469. crossings and intersections, 469. right to private crossings over railroad, 4S5a. through railroads or highways, acquisition of additional lands, 472. damages for failure to maintain fences, 485. for killing stock, when, 485. not liable for in certain cases, 485. not liable for killing stock, when, 485. recoverable by railroad company for failure of owner to fence, 485. resulting from violation of rules of comimny, 4 84. directors to be elected, when, 454. duties of corporations, 481. earth may be taken from state lands, 4 76. 1250 INDEX. [References are to sections.] RATT.nOAD CORrORATIOXS (continind ). ejectment. See tit. Ejeotion of Passengers. elevated or underground railroads, franchise granted by whom, 492. petition, by whom signed, 492. enumerated powers, 465. grant not to embrace town lots, 475. to accept real estate, 465. to acquire real estate, 465. to carry persons and freight, 465. to consolidate witli other roads, 47."?. to cross, intersect, etc., other railroads, 465. to enter upon lands to select and survey route, 4 65. to erect buildings, 465. to establish rules for management of business, 465. to lay out roads and width of, 465. to lease or use another road In common, il?,a.. to purchase lands, timber, stone, etc., 465. to purchase other roads not in competition, 465. to regulate time and tolls, subject to legislation, 465. to select and survey loute, 465. to take grant of state lands, 4 74. to take wood, stone and earth from state lands, 476. wliere may construct road, 465. fences, duty to maintain and liability for failure, 4S5. forfeiture of franchise, as to, 468. by failure to operate, 468. exception, 468. fi-anchise, forfeiture of by failure to operate, 468. highways, crossing of, acquiring additional lands, 472. interest, limitation upon amount of, 456. lands of to revert to state, wlien, 477. leasing and using another road in common, 47.'la. map and jproflle to be filed, 466. must be certified, 466. may borrow money, 456. may change line of road, 467. how new location to be run, 467. may issue bonds, 456. may sell property and franriiises to other railroads, liil. competing roads siiall not be purchased, 494. debts incurred, not relieved from, 494. fares and tolls shall not be increased, 494. penalty for violation, duty of attorney-general, 4:'4. terms and conditions of sale, 494. , . 1257 INDEX. [References are to sections.] IlAIl^ROAI) CORPORATIONS (continued), motive power, what may be used, 465a. new location of road, liow to be run, 467. officers of, 454. to wear badg-es, 4 88. passenger refusinj? to iia,\' fare or surrender ticket. See tit Ejeclioii of Pa.Siseiisers. damages for refusal to carry, 4Si'. penalty for failure to provide tickets, 490. printed regulations must be posted, 484. private crossing over railroads, rigiit to, 48oa. profile and map to be filed, 466. must be certified, 466. rail, quality to be used, 491. railroads, crossing of, acquiring additional lands, 472. rate of cliarges established by railroad commissioners, 489. copies.of rates to be posted, wliere and by wliom, 489. further publication to be made by the board of railroad commissioners, 489. notice of to be served, 489. regulations of trains, 489. action to be prosecuted by district attorney, 486. bell to be rung, 486. liability in damages for failure to observe statute, 486. penalty for neglect to ring bell or blow whistle, 486. whistle to be blown, when, 486. room inside passenger cars to be furnished, iS?>. selection of st.ate lands, how proved and certified to, 478. sinking fund to pay bonds, 457. state lands may be granted for use of corporation, 4 74. grant not to embrace town lots, 475. selection of, how may be proved and certified, 478. stone may be taken from state lands, 476. street railroads. See tit. Street Railroad.^. subrog.ation of new corporation on consolidation, 473. ticket entitles purcliaser to what, 490. penalty for failure to provide, 490.* t;me of running to be fixed by public notice. 481. transfer of stock, 455. not valid except, 455. using another road in common, 473a. wood, stone, and earth may be taken from state lands, 476. RAILROAD FEXCE. See tit. Fence.s. 1258 I TNI^EX. [Referpnce.s aie to sections. 1 RATIFICATION of agent's act., 2.'>10-2316. of contract void for want of con.sent, ir)88. voidable, 1588, 2310. partial, becomes total when, 2311. prejudice of third person, not allowed, 2313. rescission of, 2314. void, when, 2312. RKAL PROPERTA' action for possession of, 3375. agent'.s autliority to sell includes, what, 2324. Itoundaries as to, generally, 830. by waters, 830. by ways, 831. right to surface and things above and heneatli, S29. easements. See tit. ICnMenieutis and Servitude's, eflfeet of trani^fer conveyance by owner for life or for years, 11 lis. easements. See tit. Easements. fee simple title passes, when, 1105. grant, how far conclusive on purchaser, HOT. grant made on condition subsequent. See tit. t'onditions Subsequent. as to generally, 1109. grant of rents, reversions, and remainders, 1111. grant on condition. See tit. Conditions. when absolute, 1110. implied covenants. See tit. Iniiilifd <'o> ciiiints. as to, generally, 1113. lineal and collateral warranties abolished, 1115. subsequently-acquired title passes, when, by operation of law, 1106. ways. See tits. Public Hig-liwaj's; Ways. what easements pass with property, 110-1. ejectment'. See tit. E.ieetnient. estates in. See tit. Estates in Real Property. as to, generally, 818. general provisions as to, 755. how governed, 755. kinds or classes of, 658. land. See tit. Land. lateral and subjacent support. See tit. i.nieriil Sniiport. lime-trees, 834. 1259 INDEX. I TleferciU'es are tu sections.] REAL PROPERTY (continued). obligatiou.s of o^vuers as to, generally, 840. ditches, flumes, etc., liability as to, S4i;. neglect to pay expenses, 843. duty of tenant for life, 840. monuments and fences, 841. ownership. See tit. OT\-uer.*iliiii. power. Title V. Following, STl. execution of, 860. of appointment, effect of, 781. rigrhts and obligations of o^vners as to, generally, 818-843. rights and remedies on lease for life, 823. rights as to rent. See tit. Rents. of grantees of rents and reversions, 821 of lessees and their assignees, 823. of lessor against lessee and assignee, 822. rights of tenant for life. See tit. Tenant for Life. of tenant for years. See tit. Tenant for Years. on lease. See tit. Lease. servitudes. See tit. Easements and Servitudes. transfer of. See tit. Real Property, Transfer of. to one for money paid by another, 853. trust presumed, 853. trees, trunks of which are wholly on land, 833. uses and trusts. See tit. Uses and Trusts. as to, generally, 847-871. writ of assistance. See tit. ^V^it of Assistance. writ of possession. See tit. AVrit of Possession. writ of restitution. See tit. AVrit of Restitution. REAL, PROPERTY, TRAXSFER OF as to, 1091. modes of, 1091. requisites for transfer of certain estates, 1091. attorney in fact must execute for principal. See tit. .\t- torney in Fact. as to, generally, 109."). by married woman, how acknowledged, 1093. as to, generally. See tit. Married AVomen. conveyance where name of person has been changed, 1096. form of grant, 1092. power of attorney of married woman, how acknowledged. See tit. Power of Attorney of Married Woman. as to, generally, 1094. 1260 INDEX. [References are to sections.! RECITALS. See tit. Deeds. in deed wlien resorted to, 10G8. RECORD of defectively-executed in.strument impart.s notice, 1207. of htcatioii of minings claim copies of as evidence, 1426q. to be received in evidence, 1426p. of marriage as to generally. See tit. Marriage. of certificate of, 69a. of yearly ^Tork on mining el aims as to, generally, 1426m. recorder's fees, 1426m. RECORDATIOX. See tit. Reeording Transfers. fees for. See tit. Reeorder Fees of. instrument deemed reoortled, «'hen. fees of, non-payment immaterial, 1171. what instruments to be acknowledged before entitled to, 1162. ItECORDER duties, of, 1172. fee for recording certificate of residence of corporation, 116:5. fees to be indorsed on instrument recorded, 1165. RECORDING TRANSFERS. See tit. Recordation. acknowledgment of proof of instruments. See tit. .Vcknowl- edgment. as to, generally, 1173, 1213. as to what may be recorded, 1158. acknowledgment necessary to record, when. See tit. Ack- noT\'ledgment. as to, generally, 1162. certificate of residence of corporation, 116:;. ' certified instrument recorded, when, 1162. fees of recorded to be indorsed, 1165. judgment may be recorded without acknowledgment, 1159. letters patent may he recorded without acknowledgment, 1160. location of mining claim recorded witliout acknowledg- ment, 1159. mortgage to be recorded, 1163. transfer in trust to be recorded, 1164. conveyance defined, 1215. conveyances to be recorded, or are vnid, 1214. constructive notice, 1163. 1201 INDEX, r References are to sections.! RECORDING TRANSFERS (eontinned). effect of want of record, 1163. mode of recording. See tit. Record. books of record, 1171. deemed recorded, when, 1170. duties of recorder, 1172. In what office, 1169. transfer of vessels. 1173. recording certified copy of recorded instrument, 1218. unlawful transfers. See tit.' Unlawful Transfer.-*. unrecorded instrument valid between the parties, 1217. RECORDS OF CORPORATION evidence to prove what, 365. how kept, 365. other records to be kept by certain corporation, 365. restoration of. See tit. Reissuanoe; Re.storatliin. to contain what, 365. REDEMPTION. See tits. Mortgage Foreolo.stire.sj Tax Sales. contract in restraint to, void, 2889. from foreclosure as to,' 2931, 2967. right to redeem pledge, 2947. of franchise from execution sale of, 392. from lien, 2903-2905. RE-ENTRY right of can be transferred, 1016. transfer of right to, 1046. when and how to be made, 791. REFEREE in action for divorce, 130. REFORMATION. See tits. Contracts; Deeds; Married AVonien, of contract. See tit. Contracts. presumption as to intent. 3400. rules for, 3401. specific performance of after, 3402. REFUSAIi. See tits. Divorce; Husband and AVifc. REGISTRATION. See tit. Recordation. REGISTRY. See tit. Ships and Shipping. of marriage certificate. 69a. of ship for voyage, 966. REIMBURSEMENT. See tit. Fraudulent Transfer.«i. REIXSIIRANCE. See tit. Insurance. 1262 INDEX. • LUefereiici's arc to .sections.] KEI.SXl A.\CK. See tit. |{t'.sl<>ratioii. of bonds of corporation, 329. of lost certificates of stock, 36.5. of lost private document of instruments, 3 1U-J. of lost records of corpoiation, 36.5. RELATION doctrine of as ajiplied to ;ippr(ii)iia t ii>n nf waters, 141S. RELATIONS HIP degrees of. how computed, ] 3S!i-i :;;):!. half-blood. See tit. Half-hlood. as to right to succeed, 1394. husband and wife, cannot impair, 159. succession, through illegitimate, 1388. RELATIVES alien, succession by, 1404. legacies to, when chargeable with debts, 1361. to protect child from personal abuse, 203. RELEASE claims which are not affected by, 1542. creditor, how^ made by, 1541. debtor by substitution of. 1531. obligation extinguished by. 1541. of future interest as to, 699. extent of, generally, 1542. of guardian by ward. 256. of .ioint debtors, 1543. extinguishes obligatinn, 15 11. of one of several .ioirt debtf>rs. effect of, 15 43. RELIEF. See tits, nainnses; IJivoroe; Equitable Relief; .\ul- sanee. in case of forfeiture, 3275. preventive. See tit. Preveiiti^e Relief. species of relief, 3274. specific and preventive. i-!ee tits. Specifie Relief; Preventive Relief. what granted in divorce, 136. RELIGIOIS BELIEF. See tit. AVilLs. RELIGIOUS. SOCIAL AND BE>E\ OI.E.V T ( ORI'OR ATIOXS. See tit. Corporations. additional facts, articles to set out, 594. amount of real estate that may be owned b>-. 595, 596. friendly, etc., societies, 596. annual report to bo made and verified b.v directors, 597. burial plots in grounds of may be sold, how, 598. 1263 INDEX. [References are to sections.] RELIGIOUS, ETC., CORPORATIONS (continued), by-laws. See tit. By-Laws. as to generally, 599. consolidation of debts, 605. new articles to be filed, 605. public notice given, 605. friendly, etc., societies, amount of land ma.v hold, 596. may bond real property, 598. may mortgage real property, 59 8. may provide, what, 599. may sell real property, 598. member cannot transfer his membersliip, 601. members admitted after corporation, 600. notice by publication for leave to sell mortgage, etc., 598. number of directors, 593. religious society may become corporation sole, 602. articles of incorporation, to set forth what, 602. certain limitations do not apply, 602. continuation of corporation sole, 602. powers of, 602. reli'gious society may elect directors and incorporate, 603. by-laws, enactment, repeal, and amendment, 604. certificate of incorporation to be filed, 603. convention, etc., to elect directors, 603. directors, election of, 604. limitations which do not apply to, 604. name, purpose, and term of corporation, 604. property in trust for the society. 603. signature by secretary and president, 604. REI-INQITISHMENT of custody and services of child, 211. REMAINDER as to construction of, 780. contingent, 778. on pri'or remainder in fee. 772. created, when is, 773. death of devisee before testator, effect of, 1344. definition of, 769. for life upon term, 777. on term of years, 776. owner right to sue for injury to inheritance. 826. successive, estate upon, for life, 774. validity of. 764. what title vests under, 781. when created, 773. 1264 INDEX. IRfforences are to sections.] REMAIN DKRMAN interest of not affected by death of devisee of legatee be- fore testator, 1344. KEiMAIXDKR.S AMD REVERSIONS. See tit. ReversioiiK ami Reinaiuders. certain remainders are valid, 764. construction of certain remainders, 7S0. contingent remainder in fee, 772. contingent remainder on a term of year.s, 776. effect of power of appointment, 781. heirs of tenant for life take as purchasers, when, TT'.t. limitation of successive estates for life, 774. remainder, contingent in fee, 772. future and conti'ngent estates, how created, 77:1. for life, 777. upon a contingency, 778. upon estates for life of third persons, 775. remedy for injury done to the inheritance, 826. REMEDIES. See tit. Preventive Relief. RENTS AND REVERSIONS rights of grantees of, 821. RENTS, ISSUES, AND PROFITS acceptance of rent, renewal of lease, when, 1945. as to when payable, 1947. covenant to pay, 1462. dependent on life, as to collection of, 825. express trust to receive, 857. forfeiture, by letting part of room, ll(5(i. grant of, 1111. right to recover for, 821. ItayiiiPiit of remedies by assignees of, 822, 823. for recovery of, 822. servitude. See tit. Servitude. term of, indicated by rent, 1943. to be made, when, 1947. treble rent for holding over. 3345. trust to receive, express. 857. under lease for life. 824. when payable, 1947. RENTS, REVERSIONS, AND REMAINDERS apportionment of, 1111. as to, 1111. 1265 INDEX. [References ai-e to sections.] UIOI'AIK borrower to make, when, 1889. by hirer of personal property. See tit. Hiriu^;. at expense of letter, 1956. when to make, 1929. coterminous owners to repair fences, 841. landlord to repair, when, 1941. letter of personal property, to repair, 19i).>. owner coterminous to repair fences, 841. of estate for life, to make, 840. of ship for voyage to make, 965. shipmaster may, 2373. tenant at expense of landlord, when, 1586. for li'fe to repair fences, 840. REPAYMENT of loan, in current money, 1913. UEPEAl^ effect of, 20. UEPIjEVIX. See tit. Claim and Delivery. ItEPI^ICATION evidence of payment. See tit. Payuien*. REPORT. See tit. Libel. KEPI BI.ICATIOjV. See tits. Codicil: AVill. KRPIGXAXCE. See tit. Interpretation of Contraets. in contract, as to, 1652. ItEPlGNAXCE BETWEEN .STATrTES. See tit. Statute.s, In- terpretation. I UESCISSION. See tit. Contraet.s. by buyer at auction, v.'hen, 1796. if seller refuses i'nspection, 17S.T. on breach of warranty, 1786. consent not free, may be made, 1566. contract. See tit. Reseis.sion of Contraets. in what cases allowed, 1684. when adjudged. 3046. where consent not free, 1566. equity must be done by party. 3408. extinguishes contract, 1682. grounds for, 3406. how effected. 1691. infant's contract of, 35. 1266 INDEX. [Ueferenees are lu sections. 1 / IIESCIS.SIOX (conliiiued). insurance for concealment, 2562-2.567. for false representations in niatei-ial manner, 25S0. when to be exercised, 2583. lunatic's contract. 39. mistake for, wlien, 3407. novation. See tit. IVovution. obligations, of alteration of, effect, 2821. of insurance contract, 2583. of ratification of agent's act, 2314. of sale, for non-payment of price, 1749. person without undeistanding, 39. ratification, as to, 2314. requirements on judgment of, 3412. stoppage in transitu. See tit. Stoppage in TransHu. valuation, fraudulent, for, 2736. violation of warranty, 2608. RESCISSION OF CONTRACT as to when may be changed, 3406. court may require party rescinding to do equity, 340S. for mistake. 34Q7. RKSERVK FUND. See tits. InNurance Corporations; Savin^M Banks. RESIDENCE. See tits. Husband and Wife; Minors; Parent and Cliild. of minor child, parent may determine, 213. RESIDUARY CLAUSE. See tit. Wills. as to, 1332, 1333. RESIDUE on remainder, 776. bequest of, 1280. devise of, 1332. RES JUDICATA .iudgment of, annulment of marriage is, 84. RESOI-UTION TO MACADAMIZE. See tit. Constriietion No- tice. RESPONDEAT SUPERIOR. See tits. Master and Servant; Xe^- liRenee. lii<:SPONDENTIA. See tits, itottomry; Ships and Shipping. by master, 3038. by owner, 3037. definition of, 3036. fraudulent conveyance, delivery, 34 40. interest, rate of on, 3039. liiw of mortgages does not affect, 2942. 1267 INDEX. [Refereni'e.s are' to seotions.] RESPONDENTIA (continuccD. master's, 3038. obligation of ship-owner, 3040. owner by, 30 3 7. obligations to repay, 304 U. rate of interest, 3039. subject to law of liens, 2877. RESTORATION. See tits. Pledge; Reissuance. of lost original articles of incorporation, 297a. of lost records, etc., of corporation as to proceedings for, 365. judgment and decree on, 36p. jurisdiction of court, 365. notice of hearing proof of publication and service of, 365. publication of, 365. service of, 365. petition for, 365. of property pledged, effect of, 2913. RESTRAINT OF MARRIAGE void, when, 710, 1676. RESTRAINT OF TRADE. See tit. Contracts. contracts not void, 1673. RESTRAINT ON AMENATION as to, 711. future interests suspending power of, void, 716. lea.ses of agricultural lands for more than ten years, void, 717. of city lots for more than fifty years, void, 718. RESUI^TING TRUSTS. See tit. Uses and Trusts. RETROACTIVE. See tit. Statutes. code is not, 3. REVERSIONS. See tit. Rents, Reversions, and Remainders. REVERSIONS AND REMAINDERS. See tit. Remainders and Reversions. remainder, what is. 7 69. reversion, what is, 768. REVISION OF CONTRACTS as to when may be revised, 3399. enforcement of revised contract, 3402. evidence on action for, declaration of grantor admissible. when, 3400. intention of parties presumption as to, 3400. presumption as to intention of parties. 3400. principles of revision, 3401. • 1268 INDEX. 1 References ai'e to seetinns.] KEVOCATIOiV. See tits. Coutracl; Wills. antecedent will, not revived by, 1297. by subsequent will, 1296. conveyance not a revocation, when, 1303. evidence of, 1293. i's a revocation, when, 1304. mortgage not a, 1302. of codicils. See tit. Codicil. as to, generaJly, 1305. of condonation, 121. of consent to separation, 101. of continuing guaranty, 2S14. of duplicate will, 1295. of gift in view of death, 1150. of power of attorney, 1216. of proposal to contract, 15S6. of trust, 2280. sale not, when, 1301. REWARD finder of property entitled to, what, 1S71. RIDING ON PliATFORM. See tits. Negligence; Street-Car Rail- vrays. RIGHT to use force, 50. RIGHT OF \VAY fire companies running to fire to have, 453b. i'n general, SOI, 802. selection of by railroad, 478. restrictions on street railways, 498. telegraph and telephone companies, right of, 536. RIGHTS OF CITIZENS IN l»I,ACE«» OF PI lU.lC ACCO>IMODA. TION OR AMUSEMENT as to, 51. damages recoverable for violation of, 52. wrongful refusal to admit to, 53. damages recoverable for, 54. UIGHTS OF OWxNERS to income property, 733. to increase of property, 732. RISK OF EMPLOYMENT. See tit. Mn.ster ami Scrvsjiit. ROADS for horseless vehicles, franchise to construct, 524. telegraph and telephone companies may use, 536. ROOMERS AND LODGERS. See tit. HoincNteail. 1269 INDEX. [ Koferences are to seftions.l HOOMS. See tit. I.uiullorti aud Tenant. letting parts of forbidden, 1950. RULES OF NAVIGATION. See tits. .Sliip.s and Sliippiui;. breach of rule.s, effect of in collision, 971. collisions, 970. from breach of rules, 971. wilful default, 972. loss, how apportioned, 973. SAFK PLACE TO RIDE. See tits. Railroads; Street Railroads SALE agreement of sale, as to, 1726. agreement to sell and buy, 1729. what may be the subject of the contract, 1730. agreement to sell real property, 1731. as to, generally, 1731-1734. as to sale, generally, 1721. by auction, as to, 1792. auctioneer's memorandum of sale, 171iS. by-bidding, 1797. common-law covenants required, 1733. contract to manufacture, 1740. to sell personal property. See tit. Personal Property. to sell real property, 1741. rights of buyer upon sale without reserve, 1796. under written condition, 1795. wlien complete, 1793. withdrawal of bid, 1794. form of covenants, 1734. of provisions for domestic use, 1775. on sale of good-will, 1776. vipon judicial sale, 1777. of stock in trade, recordation of, 3440. ri^fhts and obligations of the buyer before delivery, 1748 when seller must act as depositary, 174S. delivery on demand, 1753. buyer's directions as to manner of sending thing pur- chased, 1757. expense of transportation, 1755. notice as to delivery, 1756. where made, 1754. within reasonable hours, 175S. stock in trade, of, recordation, 3440. subject of sale, what is, 1722. 1270 INDKX. Llieffiences are to section^^.J SALE (eontiiuied ). transfei' bj'. ISee tit. 'I'raii.sl'tT. warranty, fc'ee tit. \>arraiilj. as to, generally, 1763. manufactuier's warranty against lattnt defcctis, 176U. merchandise not in existence, 1T6S. no' implied warranty, wlien, 1764. on sale by written instrument, 1774. thing bouglit for a particular purpose, 1770. warranty on sale by sample, 1766. where seller knows buyer relies on statements, 1767. where thing' cannot be examined by buyer, 1771. SALVAGE as to, 2079. priority of lien for, 3029. who entitled to, 2079, 2725. SATISFACTION. See tit. Aoourd and Satisfaction. of judgment against corporations, 384. against homestead, 1241. of legacies and gifts, 1367. of recorded mortgage, 293S, 2939. by foreign administrators and executors. .See tit. >I«>rt- penalty for refusing, 2941. what operates as, 1523. SAVINGS AND LOAN ASSOCIATIONS. See tits. Corpurations: Building: and Loan A.s.soeiatiuns. SAVINGS AND LOAN CORPORATIONS amount of capital stock required, 580. to be paid in, 580. to be subscribed, 580. biennial report of unclaimed deposits. 583b. cannot purchase, hold, or convey bonds, securities, etc., 57 4. cannot purchase, hold, or convey real estate other than that specifically allowed, 574. cannot purchase, own, or sell personal property except that required for its business, 574. capital actually paid up must be published, 5S3a. capital stock, rights and privileges thereof. 572. certificate of deposit transferable may be issued by, 576. "create debts."' definition of, 579. directors may not contract any debt or liabilit.\' against cor- poration, 573. dissolution, disposition of reserve fund on, 577. dividends, to be made from surplus funds, 583. 1271 INDEX. [References are to sections.] SAVINGS AND LOAN CORPORATIONS (continued). liability, none to be contracted except for deposits, 573. may loan money, on what terms and how, 571. for how long a time a loan may run, 571. to w^hom loan may be made, 571. pi-ohibition of directors and officers, 57S. property which may be owned by, 574. lot and building in which business is carried on. 574. such as may have been mortgaged, pledged, or conveyed to it in trust, 574. such as may have been purchased at sales under pledge, etc., 574. publication of paid-up capital stock, 583a. report of unclaimed deposits, 583b. reserve fund for payment of losses to be provided, 577. corporations without capital, as to, 577. excess of reserve fund, disposition on dissolution, 577. restrictions on, 581. stock may be owned and held by married women and minors, 575. true names of persons engaged in must be shown. 582. penalty for violation, 582. unclaimed deposits, report of, 583b. vacancy in office, w^hat created, 578. within what time remaining stock to be paid in, 580. SAVINGS BANKS. See tit. Savins.s au«l Loan Corporatuiiis. SCHOOf, COMMITTEE. See tit. Slander. SCIENTER. See tits. Animal.s, Vicious; Negligeuoe. SEAL abolished, 1629. affixed, how, 162S. officer must affix to acknowledgment, 1193. provision abolishing effect on instruments, 1629. corporate seal. See tit. Corporate Seal. SEALED INSTRUMENT distinction between sealed and unsealed abolished, 1629. SEAMEN. See tits. Mates and Seamen; Sliipnia-ster. lien of, 3056. SEAMEN'S \VAGES as to, 2063. SEAT IN CHURCH right to is a servitude. 801. SEAWORTHINESS of ship, what constitutes, 2681. 1272 V INDEX. [References are to sections. 1 SliCRET SOCIETY OF ORDEK not insurance company, 45]. SECRETARV OF STATE certificate of incorporation, prt;re(iuisites for, 2!M. wlien must issue, 296. continuance of corporation, proceedings for, 2S7. SECTION as used in code refers to, what, l-I. SEDLCTIOX. See tit. Daiiiiigps. damages for, 3339. in general, 49. SEIZIX. See tits. Coveiiaut ol' Seiieiu; I^lvery of Sfl/.iu. SELF-nEFEXSE as to right of, 43. SEMINARY. See tit. Collese.s aud Seminaries. SEPARATE PROPERTY. See tits. Husband and Wife; Married Women. SEPARATE PROPERTY OF HTSBAND. See tit. Husband J»ud Wife. as to, 163. in general, 163. not liable for debts of wife contracted before marriage, 170. SEI'ARATE PROPERTV »H' WIFE. See tit. Hiisliaiid and Wife. as to, 162. filing of, IPC, 167. inventory of, 165. liability of for her own debts, 171. not liable for husband's debts, 171. SEPARATION. See tit. Husband aud Wife. SERV.VNT. See tit. Master and Servant. SERVICE child's relinquishment of by parent, 211. contract of limited to two >-ears, 19S0. lien for, 3051. limit of terni to two years, 1980. on foreign corporation, as to, 405. SERA'ICE WITH EMPLOYMENT. See tit. Eni|tloynieii(. compensation, 2072. salvage, 2079. voluntarily interfering with property, duties, 207S. SERVITI DES. See tit. Ea.senients and Servitudes. SETTLEMENT. Marriage. See tit. Marriase. S E\ E R .\ T, O \\ \ 10 R S H I P . what is, GSl. 1273 INDEX. [References are to sections. 1 SEXUAL, IXTERCOVRSK. See tits. Divorce; HiinIciiiiI and Wife, ".SHAHIOH- ami seamen. 2066. license, etc., of, 966. lien of master. .'!055. of seamen, 3056. not lost by grant, 2052. priority of on, 3029. 1275 INDEX. [References are to sections.] SHIPS AND SHIPPING (continued). loss by collision, apportionment of, 973. . manager. See tit. I^liip's Slanager. mister. See tit. Ship's Ma.ster. mate. See tit. Mates and Seamen. meeting of ships, etc. See tit. Rule.s of Xa^ ipralion. mortgage o£ as to, 2955, 2971. recordation necessary, 2959. navigation of domestic and foreign defined, 965. negligence liability of master for, 2043. of employee, 23S3. of pilot, 2384. neutral papers. See tit. Insurance. nuncupative will. See tit. AVills. of seamen, 1289. owner for, voyage, liability of, 965. respondentia. See tit. Respondentia, part owners as to jurisdiction in controversies between, 964. as to whether partners, 2396. passengers. See tit. Common Carriers of Passengers. master may engage, 2376. master's power over, 2037. perils at sea. See tit. Perils at Sea. as to what are, 2199. liability for loss by, 2197. pilot, liability of master for neglect of, 2384. when master must take on, 2036. pilotage, 2036. ransom of ship, master's power as to, 2380. lecordation of transfer of vessel, 1173. registry of vessel, 966. repairs of ship, master may procure, 2376. rules of navigation. See tit. Rules of IVavigatioii. rules for passing. See tit. Rules of IVavigation. sale of ship, when master may make, 237S. salvage as to in general. 2079. waiver of right of by seamen void, 2050. seamen. See tit. Mate.s and Seamen. special agreement with, as to validity of, 2053. seaworthiness. See tit. Insurance and Seaworthinesj*. 1276 INDEX. [References are to sections.] SHIPS AND SHIPPING (continued). several oivners jurisdiction of court in disputes between, 964. partners, as to whether are, 2396. ship definition of, 960. domestic and foreign distinguished, 963. unseaworthy, seamen not bound to go out on. 20ril. shipping, definition of, 960. shipwreclc, deposit in case of, 1S13. stowage, as to, 2117. supplies, procuring of by master. 2376. surety, rights of apparent principal to show he is a. 2832. telegraph cable, damaging of for, 537. trading of on account, master prohibited from, 2042. transfer of interest in ship, statute of frauds affecting, 1135. unseaworthy sliip, seamen not required to go out on, 2051. voyage and deviation. See tit. 3Iarine Insurance. wages of seamen. See tit. Mates and Seamen. wharfinger. See tit. W^arehousenian. SHIP'S MAIVAGER. See tit. Shipmaster. compensation of, 2072. definition of, 2070. duties of, 2071. what power he has, 2388. what power he has not, 2389. SIGNATURE. See tits. Contracts; Mark; AVills. as to what constitutes, 14. in indorsement, 3110. of officer taking acknowledgment, 1193. SIGNS. See tit. Trade-Marks and Signs. SINGULAR includes plural, 14. SINKING FIND establishment to pay railroad bonds. 4.'i7. SKILL. See tit. Care. SLANDER malice, not inferred, wMum), 4S. privileged coniiiiunieatinii. See til. I>rivile|j;ed I'liltllcatlon. what is. 46. SOCIAL ASSOCI.VTION. See tits. i{eliKlun(l lo per- form., 3 395. as to generally, 3395. what cannot be speciflcall\- enforced. 3390. as to generally, 3390. what parties cannot be compelled to perform, 3391. what parties cannot have in their favor, 3392. when enforced, 33i> 1. .SPECIFIC REMEF as to generally, 3366, 3367. as to, when allowed, 3366. for cancellation of instrument. See tit. Caiicellatiou of Im- strumeut. forfeiture, 3369. for possession of personal property. See tit. Claim and De- livery; Personal Property- (possession of). for possession of real property. See tits. Ejeotnieut; Real Property. for rescission of contracts. See tits. Coutraets; Rescission of Contracts. for revision of contract. See tits. Contracts; Revision. for specific performance of obligations. See tit. Specific Per- formance. how granted, 3367. judgment for possession of real property, 3375. judgment for possession of title, 3375. not allowed to enforce penalty, 3369. penalty not enforceable by judgment for, 3369. preventive relief, 3368. recovery of personal property, judgment for, 3379, 33S0. support, right to conduct, as an easement, 801. when allowed, 3366. SPEED. See tits. Railroads; Street Railroads. of carriers for hire, 2104. SPIRITITALIS!»I. See tit. W'llls- SPRING. See tit. Appropriation of ^^ater. ST.VGE. See tit. Common Carriers cf Passengers. obligation of to cairy baggage, 2180. ST\I,I,IOX. See tits. IJens: Other l.icns. action to enforce lien, 3064. lien of person in charge of, 3062. must lile vtM'ilied claim, 3063. 1279 INDEX. rRefprences are to sections.] STATE islands l>el(ing to, wlien, 1U16. preference to be given to bj' carrier, when, 2171. property may be held by as private proprietor, 669. what lands are property of., 670. STATE LAND grant of railroad of, 47 4. wood and eartli may be taken from by railroad, when, 476. STATEMENT. See tits. Libel; Privileged Coinniuniealion; Slauder. STATIONS. See tit. Railroads. STATUTE. See tit. Coustruetiou of Statute. code, continuation of, 5. • construction to be liberal, wlien, 4. injunction restraining enforcement not granted, 3423. private, effect of code on, 20. ' repeal of, by enactment of code, 20. retroactive, code not, 3. revival of, code does not work by repealing other statutes, 20. STATUTE OF FRAUDS agency, contract of, as to, 2309. , agent, employment of within, when, 1624. assignment for benefit of creditors, effect of on, 345S. as to, in general, 1624. as to what instruments are reauired to be in writing, 1024, auctioneers' memorandum. See tit. Auotloneers, effect of written contract, 1625. guaranty, within, 2793, 2794. lease within, when, 1624. manufacturer, contract of, within, 1740. marriage. See tit. Marriage. mortgage is within, 2921. n oral contract within, when, 1622. transfer by, when. 1052. real estate broker ^vithin. 1624. realty contract for sale of within, 1741. controlled by, 1624. sales, as to when within, 1624, 1739. ship, transfer of interest i's within, 1135. specific performance, effect of on, 333S. v suretyship, when, within, 1624. trust, transfer on within. 1135. 1280 INDEX. [Hefcioiu'es are to sections.] STATUTE OF FRAUDS (continued). will.s, as to requirements of writing, ](jL'l. wine, sale of not witliin, 3440. STATl'TK OF 1, IMITATIONS. See tit. I>iniitaUoiiN of \ctiuii.H. STEAMEKS MEETING. See tit. Rules of Nnvi^raiioii. STEPFATHEK. See tits. Acluptioii: HuNband and Wife. riglits and liabilities of respecting stepchildren, 20!). STOCK. See tits. Certificates of Stock; StocklioUlcrs. liow issued, 323. purchased by corporation, disposition of, .^44. STOCK IN TRADE sale of to be recorded, 3 4 40. STOCKHOIiDER. See tit. StockliolderN' ^IretiiiK. certificate of stock. See tit. Certificate of Stock. corporation having no capital stock, member liable individ- ually, 322. creditors may Institute joint or several actions, 322. liability determined by amount of stock, 32^2. liability of, 322. how determined, 322. vf foreign corporation, liabilit.v of, 322. paying proportion of debt released, 322. released, when, 322. stock held as collateral securit>' or 1)\- trustee holder iimI liable, 322. suit against may be joint oi- several, 322. term "stockholders," definition of, 322. trust funds in hands of guardian or trustee not liable, 322. STOCKHOLDERS' MEETING proxies, when void, 321b. essential to validity of, 321b. maximum period of, 321b. revocable, 321b. who may vote at, 321b. STOIiEN GOODS. Sec tit. Sale. STOPPAGE IN TRANSITU as to generally, 3076. how stoppage effected, 3079. in general, 3076. insolvency of consi'gnee, what constitutes, 3077. seller may stop, when, 3076. stoppage, effect of, 3080. how effected, 3079. transit, when ended, 307S. when consignor may stop, 3076. 11 1281 INDEX. [References are to sections. J STORAGE. See tits. DeiioNit; W'arehouseuieu. as to what constitutes, 1851. , care, degree of required, 1852. . carrier, placing freight on, 2120. compensation for, 1853. finder, right to put thing in storage, 1S68. liow to be terminated. 1854. sale of unclaimed baggage to pay, 1862. STO^VAGE. See tits. Carriers of Property; Sliip-s aud JSIiippiut;. as to, 2117. on deck, 2154. STRAXGER. See tits. Contracts; Obligatious. attornment to, 1948. grant may inure for tlie benefit of, when, 1085. STRATAGEM OR FRAUD. See tit. Divorce. separation produced by desertion, 97. STREAM. See tit. AVaters. STREET RAILROAD. See tit. Street Railroad Corporatioiix. cars of to be modern in constructi'on, 501. city's right to improve street, etc., reserved, 507. code sections applying to, 510. crossings, obstruction of, in making, 500. elevated, as to, 498. grants not to be made near election. 497. license tax on, 508. municipality, regulations respecting, 503. owned by natural person, 511. passengers on. See tit. Carrier.s and Coniniou .Carriers of Passengers. penalty for overcharging, 504. rates of fare. See tit. Fare. right of w^ay, restrictions on, 498. ticket. See tit. Ticket. time within whi'ch to be completed, 502. track authority to lay, how obtained, 497. for grading purposes, time to remain, 509. ' imposing restrictions on laying, 497. to be laid, how, 498. two lines may use same, wlien, 499. STREET RAII,ROAD CORPORATIONS. See tit. Street Rail- roads. agency of person collecting fares, proof of. 506. cities and towns may make regulations, 503. crossing tracks already constructed, 500. 1282 INDEX. [References are to sections.] STREET RAILROAD CORPORATION (continued). franchise of, 497. law governing', 510. license to be paid municipality, 508. limitations and restrictions, 497, 498. obstructions must not extend more than one block, .ioo. overcliarging, penalty for. 504. propelling poAver, 497. rates of fare, 501. penalty for violation, 501. reserved rights, 507. tickets must be furnished by, 505. penalty for failure to comply, 505. time alloived extension of time, 502. failure to comply, forfeiture, 502. track authority to lay, how obtained, 497. extent to which may be used, 499. for grading purposes. 509. imposing restrictions on laying, 497. manner of laying, 498. motive power, 509. time may remain, 509. two lines of street railroad may use same, 499. to be laid how^, 498. STRIKES, MOB VIOLENCE, ETC. See tits. Coninioii Cari-u-rs: Kailronds. SIBAGEXT. See tits. Agent: Ma.ster ami Servant. liability of, as to, 2022. of factor, 2367. represents principal, 2351. rightfully appointed represents principal. 2351. unauthorized employment of, 2350. when may be appointed. 2351. SUBMISSION TO JURISDICTION OF COl RT BV Ml.\OK. See tits. Infant; Minor. SUBPOENA may be issued liy nfficoi- taking acknowledgment. 1201. SUBROGATION of creditor of securities held by surely, 2854. of insurer. See tit. Marine InMuranee. of lienor, right to, of inferior lienor, 2904. 1283 INIJKX. [Refereiites are to sections.] .SUBROGATION (continued). of new crrporation on consolidation of railioad.s, ^7:!. of redcmptioner, 2903. of security, 2S48, 2S49. SUBSTITUTE employee's liability for, 19S0. SUCCES.SIOX. See tit. Words ami I'hrsiNe.x. advancements. See tit. AdvauceinentN. constitute part of distributive share, 1395. definition of, 1397. to lieir who dies before decedent, 1399. value of, liow determined, 1398. when too much or not enough, 1396. aliens. See tit. Aliens. may inherit, when and liow, 1404. ascending line, succession by, 1391. by representation, 1403. children, rights vest in, when, 140 3. collateral line, succession by, 1390. community property. See tits. Commuuity Propertj-; Hiisbauil and Wife. distribution on death of husband, 1402. on deatli of wife, 1401. limitation of surety's obligation, 2836. interpretation, rules of, 2837. performance or offer of performance exonerates suiety, 2839. relation not altered by^ judgment, 2838. rules of interpretation, 2837. surety exonerated by performance or offer of performance, 2839. ris.iits of sureties as rights of guarantor, 2844. entitled to reimbursement from principal. 2847. accjuires right of creditor, 2848. to benefit of sureties held by creditor, 2848. to have property of principal taken first, 2849. may compel principal to perform obligation when due, 2846. may require guarantor to proceed against principal, 284^. rights of creditors, 2854. to benefit of securities held bj- surety, 2854. surprise, contract made under, specific enforcement not grant- ed. 3390. SURVEY of wagon road, filing of, etc., 513. 1284 INDEX. [References are to seetions.l SURVEYED CLAIMS. See tit. Mining C'luims. SURVEYOR-GENERAL. right of way selected by corporation to be sent to, 47N. surplus of insurance company, how invested, 421. SURPLUS PROFITS OF CORPORATION. See tit. CuriMiratiouM. SURPLUS AVATER. See tit. Approiiriations. SURRENDER OF INSTRUMENT. See tits. ContractH; Obliga- tions. when a condition of payment, .3137. SURVIVORSHIP choses in action, survival of, 9.54. cotrustees, between, 2288. SUSPENSION. See tit. Suspen.sion of tlie Power of Alienation. SUSPENSION OF OWNERSHIP by trust, 7 71. restriction of, 770. SUSPICION. See tit. Wills. SWAMP-LAND DISTRICT. See tit. Corporations. "TARE" on lialed hops, 995. TAX encumbrance, included in the term, 1114. license on street railways, 50S. life tenant to pay, 840. on land and building corporations, 648%. on mortgage premises, 2877. TAXES AND ASSESSMENTS embraced in term "encumbrances," 1114. TEACHER. See tits. Libel; Slander. TECHNICAL WORDS. See tits. Con.strii<>tiiin; Will.^. effect of in wills, 1327. not necessary to valid will, 1328. TELEGRAMS. See tit. Carriers of Messages. TELEGRAPH AND TELEPHONE CORPORATIONS articles of, what to set forth. See tit. Corporations. as to generally, 291. prerequisites to filing, 292. care in transmission of messages, 2101, 2161. conditions on which damages to subaqueous cable may be recovered, 539. franchise of, 537. injury to, liability for, 537. liability for damaging telephone or telegi-apli prop(>rty, 537. for delay or refusal to carry, 2209. 1285 INDEX. [References aie to sections.] TELEGRAPH AND TELEPHONE CORPORATIONS (t (inliniie(] i. malicious injury to property of, penalty for, .">,'5N. may dispose of certain riglits, 540. iiiONSUge.s compensation for delivery of, J161. obligation to deliver, 2161. order in which to be transmitted, 22U7. penalty for wilful or malicious injury to teleplione or tele- graph company, .5 38. property of, lease and transfer of, 540. penalty for malicious injury to, 5.38. right of way along roads, watercourses, etc., 536. rights, what may be disposed of, 54 0. subaqueous cable, injury to^ damages for, 5 39. monument to show location of, 539. notice of location of, 539. subscripti'on to, amount of requisite to filing articles, 295. TENANCY AT WILL may be terminated by notice, 789. notice to quit, effect of, 790. not necessary, when, 794. re-entry, when and how made, 791. summary proceedings, 793. notice not necessaiy before action, when, 793. TENANCY IN COMMON devisees taking under will are, 1350. of spouses, 161. TENANT. See tit. Lnnilloril ami Tenant. TENANT FOR LIFE duties of, 840. lieirs of, take as purchasers, when, 779. rights of, 818. TENANTS FOR Y^EARS as to rights of, 819. TENDER. See tit. E.vtiuetion of Obligation. and deposit distinguished. 1500. by whom to be made, 1487. interest stopped by, 1504. of performance of obligation, effect of, 1485-1505, 1511. place where to be made, 1489. to whom to be made, 1488. when to be made, 1490. TENSE as to of words used in code, 14. TESTAMENTARY CAPACITY. See tit. ^VIlls. 1286 INDEX. [References are to sections.] TE.STA^IKM'AKV UISI'O.SITIOX. See tit. AVills. TESTIFY as to meaning of, 14. THEATER right to admission to, and penalty for refusal, 51. THEFT, See tit. Seamen. by seamen during voyage forfeits wages, 2063. THINGS IN ACTION. See tit. Cbo.ses In Action. definition of, 953. THIRD PERSONS act of not to prejudice, 3520. agent responsibility to, 2343. to deliver to, when, 2344. cofisideration paid by, effect of transfer, S53. contracts for benefit of. See tit. Contracts. delivery to in escrow, 1057. estate for life of, 766. grant may inure to benefit of, when, 1085. information or beli'ef of, in marine insurance, 2670. liability of partners to, 2442. may enforce contract, when, 1559. must see to application of trust property, when, 2244. necessaries furnished by for infant, 207. furnished by to wife, 174. not to be prejudiced by ratification of agent's act, 2313. not to be prejudiced by reformation of contract, 3393. rem.'iinder on estates granted for the life of, 775. specific performance of contract enforced by, 3390. tender by. See tit. Extinction of Obligrations. trust, for the benefit of, 2250. trustee, voluntary, 2243. who liable to as partner, 2444. who must suffer by acts of, 3543. THREAT consent to contract obtained by, voidable, 1567, 1682. divorce for desertion caused by, 98. menace, definition of, 1570. to obtain advantage by partner, 2410. by trustee, 2228. will procured by void, 1272. THRESHING M.\CHINES. See tit. I.ienN. lien of workmen on, 30fil. 1287 INDEX. [Rpff-rcncep ai-e to sections.] TICKET. See tit. Knilroud.s. of railroad companies, 490. entitle purchasers to what, 490. penalt\- for failure to provide, 490. TIDE WATER damages for injuries to, 3346. land bounded by, rights of owner, 830. Hen on. See tit. LogRer's I>ieii. TIMBER. See tit. Trees. damages for negligently setting fire, 3346a. TIME. See tit. Recording. action for nullity, of commencing, S3, 107. computation of, as to, 10. divorce, of commencing actions for, 127. entire, servant's belonging to master, 2013. essence of contract, not unless declared, 1492. grant, presumption as to of delivery, 1056. of taking effect of code. 2. railroad may regulate, 465. representations in insurance, refer to wiiat, 2577. void act not confirmed by, 3539. words in will relate to what, 1336. TIME OF CREATION of estate, 749. TITLE accession by. See tit. Aeeession. acquired subsequent passes, wlien, 1106. buyer acquired better than seller had, when. 1112. !)>■ devise, 1311. by occupancy, 1006. in fee simple, when presumed to pass, 1105. instrument evidencing, how proved for record, 1160, 1203. inventory of wife's property, notice of, 166. judgment for possession of, as to, 3375. lien on property does not transfer, 2SSS. of grantor of trust property, 865. of loaned property, 1885, 1904. redelivery of thing granted does not re-invest. 1058. Miibsequeutly-acquiretl inures to benefit of mortgagee, 2930. passes by operation of law, when, 1106. passes by will, 1312. to freight, passes by transfer of bill of lading, 2127, 212S. to highway, passes by transfer, when, 1112. to personal property, passes bj- transfer, 1136. 1288 INDEX. rReferenoes are to seotions.] TITLE (continued). transfer of, what passes by, 1083, 1105. trust property, what vests in grantor, 86,5. warranty of to personal property, 1765. by agent, 2323. wliat passes by transfer of property, 10S3. TITLE DEEDS as to what are, 994. TITIiE INSURANCE. See tit. Fire, Mariue, and Title Iiisiirauoe. TITLE INSIIR.\NCE CORPORATION. See tit. Corporatiou.N. certificate of insurance commissioner to do business, 4,T3y. investment of funds of, 421, 421 [a], 453t. TOLL. See tit. Rridgres, Ferries, \A'liarf, Cliiite nud I'ier Cor- |i (I rations. avoiding, penalty for, 519. b.y wagon -road corporations, 514. detaining persons unnecessarily for, 518. liighways, known on public, 515. penalty for avoiding, 519. for taking unlawful, 514. rates of, to be posted at gate, 516. right to take, as a servitude, 802. toll-gatherer, may detain traveler, when, 517. TOLL-GATE avoiding, penalty for, 519. TORT tlamages for, 3333, 3339, 3340. deceit, 1709-1714. indemnity against, 2773. in general, 1708. negligence, etc., 1714. of agent, principal liable, 2338. of infant, 41. of lunatic, 41. thing wrongfully taken, restoration, 1714. wrongful acts, 1714. TOAVN LOTS not to be granted to railroads, 475. TR.\nE. See tit. Contracts. contracts in restraint of, 1673, 1674. 1280 INDEX. [References are to sections.! THADK-MARlvS ownership, subjects of, 6.55. sale of, warranty presumed, 1773. warranty of by seller, 1774. what may be appropriated as, 991. TRADE-MARKS AND SIGNS appropriation and use of, 991. good will in, transfer of, 993. title to, 991. TRANSFER as to, what is, 1039. defectively-executed instrument, record of imparts notice, 1207. •lellvery cancellation of grant does not constitute redelivery, 1058. constructive deli'very, 1059. in escrow. See tit. Esoro-»v. nature and necessity for, 1054. necessary to procure, 1054. presumed to have been made at date, 1055. surrender of grant does not constitute redelivery, 1058. to grantee is necessarily absolute, 1056. effect of transfer, 1083. grant may inure to benefit of stranger, 1085. incidents of transfer. 1084. what title passes, 1083. % how interpreted, 1066. iiiterpretatiou against grantor, 1069. irreconcilable provisions, 1070. li'mitations, how controlled, 1067. meaning of "heirs" and "issue" in certain remainders, 1071. membership in co-operative agricultural, etc., association, of, 653u. recitals, when resorted to, 1068. words of inheritance unnecessary, 1072. in general, 1039. mode of transfer, as to, 1052. grant, what is, 1053. oral transfer, 1052. written transfer, 1053. of meinbership of co-operative agricultural, etc., association, 653u. of products of the mind, 982. of stock. See tit. Cerfifieates of Stock, Tran.«ifer. I2f)n INDEX. [References are to sections.] TRAN"SFER (continued), voluntary transfer, 1040. what may be transferred, 10 14. choses in action. See tit. Chosex in Artioii (Ti-ansfer «jf). owner out of possession may transfer, 1047. personal property. See tit. Personal Property, Transfer of. possibility coupled with an interest, 1045. real property. See tit. Real Property (Transfer of). right of re-entry, 1046. TRANSFER, FRAUDITLEIVT. See tit. Fraudulent Transfer. presumed to be fraudulent, when, 3440. with intent to defraud creditors, 3439.-' TRANSIT property in, mortgaged, where located, 2960. stoppage in. See tit. Stoppage in Transitu. TREES damage for injuries to, 3346. line-trees, 833. trunks wholly on land of one belong to whom, 833. TRESPASS accession of property by wilful, 1031. cutting or in.iuring timber by, 3346. personal property acquired by, 1031. wagon road, penalties for trespassing on, 520. TRESPASSER. See tits. NeRllKenee; OliHgrations Imposed by lirt'tV. TRIAL by jury in apprenticeship proceedings. See tit. Master and Appre-ntice. TRIFLE disregarded by law, 3533. TRUSTEES. See tit. Uses and Trusts. all must act, 2268. appointed by court for benefit of third person, when, 2252. breach of trust, measure of liability for, 2237. certain transactions by, forbidden, 2230. cotrustees, how far liable for each other, 2239. di'scretionary powers of trustees, 2269. duty of as to appointment of successor. 22G0. - guilty of fraud, when, 2234. influence not to be used for his own advantage, 2231. investment of money by, 2261. involuntary trustee must sec to application of trust property, when, 2244. 1201 INDEX. rUcferences are to sections. 1 TRUSTEES (continued). involuntary trustee (continued). third per.son liable as, when, 224 4. who is, 2223. liability for cotrustee^ as to, 2239. liability for losses only, wlien, 2238. measure of liability for breach of trust, 2237. mingling trust property with his own, 2236. must obey declaration of trust, 2258. degree of care and diligence in executing tiust, 2259. not to assume a trust adverse to interest of beneficiary, 2232. not to use property foi^ his own profit, 2229. obligations of, as to, 2228. office of, ihow vacated, 2281. discharge of trustee, 2282. removal by court, 2283. partners are for each other, 2410. powers of trustees, 2267. discretionary powers^ 2269. presumptions against, 2235. purchase by, of claim against trust fund, 2263. rights of trustees, as to, 2273. cMnipensation of trustee, 2274. ' indemnification of trustee, 2273. involuntai'y trustee becoming such by his own fault not within provision, 2275. superior court as trustee, 2289. survivorship between cotrustees, 22SS. tei-mination of trust. See tit. Trust. to disclose adverse interest, 2233. what constitutes one a, 2219. TRUST FUNDS may be invested in mortgage-participation certificates and guaranteed securities, 453ff. TRUSTS. See tit. U.se.s and Trusts. for benefit of third person.s. See tit. Trusts, tor Benefit of Third Persons. for what pui-poses a trust may be created, 2220. funds of may be invested in mortgage-participation certifi- cates, 458ff. how created, 2221. involuntary trust resulting from negligence, 2224. involuntary trust, what is, 2217. involuntary trustee. See tit. Trustees. who is, 2223. 1202 INDKX. [References are to sections.] TRUSTS (continued), not revocable, 2280. obligations of third persons. See tit. Trustees. to see to application of property, when, 2244. when an involuntary trustee, 224.3. obligations of trustees. See tit. Trustees. as to generally, 222S. parties to the contract, 2218. succession or appointment of new trustees. See lit. Truslees. suspension of ownership by, as to, 771. teruiluatiou of trust Iiow extinguished, 2279. as to generally, 2279. transfer of property held in, to be recorded, 1H54. trustee's office, how vacated. See tit. Trustees. by death or discharge, 2281. voluntary trust how created as to trustee, 2222. how created as to truster, 2221. wliat constitutes one a trustee. See tit. Trustees. as to, generally, 2219. TltrSTS FOR BENEFIT OV THIRD PER.SONS claim against trust fund, purchase by trustee, 2263. compensation of trustee, 2274. creation of, 2251. declaration of trust, 2253. degree of care and diligence in executing trust, 2259. discharge of trustee, 2282. duty of trustee as to appointment of successoi-, 2200. hfiw extinguished. 2279. indemni'flcation of trustees, 2273. investment of money by trustee, 2261. interest charged to trustee on failure to invest, 2262. nature and creation of. 2251. who are trustees for, 2250. not revocable, 2280. obligations of trustees, 2258. office of trustee, how vacated, 2281. powers of trustees, 2267. all must act together, 2268. as agents, 2267. ' discretionary powers, 2269. purchase of claim against tru.«t fund by trustee, 2263. 1293 INDEX. [References are to sections.] TRUSTS FOR BENEFIT OF THIRD PERSONS (continued). removal of trustee by court, 2283. riglits of trustees, 2273. succession or appointment of new trustee, 2287. superior court as trustee, 2289. survivorship between cotrustees, 2288. vacant trusteesliip filled by court, 2287. superior court as trustee, 2289. survivorship between cotrustees, 2288. termination of trust. See tit. Trust. trustee appointed by court, when, 2252. trustees must obe\' declaration of trust, 2238. TUNNEL RIGHT boundaries of, 1426f. location of as to generally, 1426e. record of, 1426g. what constitutes, 1426e. record of location, 1426g. IN CLAIMED DEPOSITS biennial report of, by savings banks, 583b. UNDERSTANDING contracts by persons without. See tit. Contracts by Persons AVithout Understanding. as to generally, 3 8. UNDERTAKING. See tits. Guaranty; Indemnity; Suretyship. UNDUE INFLUENCE. See tit. AVills. as to what constitutes, 1575. confidential relations between the parties, presumption as to, against trustee, 2235. contracts procured by voidable, 1567, 1689. definition of, 1575. rescission for, 1688. thing gained by, trust, 2224. trust arising through, 2225. wills procured by or revoked througli. 1272. UNINCLOSED LAND. See tit. Homestead. UNIVERSITIES. See tits. Colleses and Seminaries. UNLAWFUL CONTRACTS. See tit. Contracts. as to what are, 1667, 1668. contracts fixing damages void, 1670. exceptions to the rule, 1671. contracts in restraint of marriage, 1676. 1294 ^ ' INDEX. [References are to sections;.] UNLAWFUl^ CONTRACTS (continued), contracts in restraint of trade, 1673. exceptions in favor of sale of good will, lti74. interstate commerce. See tit. Interstate Conunerce. monopolies. See tit. Mono|iolles. exceptions in favor of partnership airangements, liJTo. UNLAW^PUIi OBLIGATIONS. See tit. Obliji^utlous. riNLAWFlil. TRANSFER certain instruments void as again.st purcha.ser, l:i27. not void as against purchaser, when, 122S. power to levoke, when, 1229. I' N LIQUIDATED DAMAGES. See tit. Daiiia^'es. IMVRECORDED DEED. See tits. Deed; Notice. I NRECORDED INSTRUMENT valid between the parties, 1217. UNSOUND MIND. See tits. Persou.s of UuNuiind Miiul; Wills: Words and Phrases. contracts by persons of. See tit. C ntracts by l*ersons of Unsound Mind. as to generally, 39. USAGE agent to conform to, 2349. definition of, 1644. employee to conform to, 1982. meaning of words, determined by, 1644. ISES AND TRUSTS. See tits. Trustees; Trusts. author of may devise, etc., 864. certain sales, etc., by trustees, void, 870. estate of trustee ceases, when, 871. exercise of vested powers, 860. for what purpose express trust may be created, 857. to mortgage or lease real pr(ipert>', S.")7. to receive rents and profits of real property and accumulate same, 857. to receive rents and profits of real prf)perty and api)ly same, 857. to sell real property, 857. funds of trust may be invested in mortgage-participation cer- tificates, etc., 453ff. grantor of trust property, title of, 865. interest remaining in grantor of express trust, S6fi. must be in writing, 852. omitting trust in conveyance, effect of. 869. purchaser for value without notice protected, when, 856. restraining disposition of trust, 867. 1295 INDEX. [ Ueft rcnces are to sections.] USES AND TRUSTS (continued). sales, etc., by trustees void, wlien, ,S70. title of grantor of trust, 865. transfer to one for money paid by anotlier, S53. trust presumed, when, 853. trustees in lands liable to creditors, when, 859. vesting of power to sell or mortgage real property, 858. what may exist, 847. V At; RANT cliild who is to be arrested and committed, 607g. VAI^IDATING defectively executed instruments, 1207. certified copies as evidence, 1207. VALUABLE CONSIDER ATION. See tit. Cou.sideratioii. VARIANCE. See tit. Aekiio-»vle«lKiiieiits. VEHICLES. See tit. Carriage of Pa.sNeiiger.s for Hire. common carrier of persons, to provide sufficient, 2184. not to be overloaded, 2102. VENDEE lien of, 3050. VENDOR'S LIEN as to, generally, 3046-3049. as to lien of seller of real property, 3046. homestead liable for. -when. 1241. VESSELS. See tits. Ships; Sliips aud Sliippiiig. transfer of, how recorded, 1173. VESTED FEE. See tit. Fee. VESTED RIGHTS as to what are. 305. future interests, 694. AESTING OF POWER TO SELL, IN MORTGAGE, ETC. as to, S5S. exercise of power, 860. VICIOl'S ANIMALS. See tits. Auimals; Negliseiife. VIGILANT law gives preference to the. 3527. VISITATION. See tit. Corporations. AITICULTIRAL ASSOCIATIONS. See tit. Co-operative Agri- cultural, etc., Associatiims. VOID CONDITION. See tit. Conflition. A'OLlTjXTARY CONVEYANCE. See tit. Transfer. definition of, 1040. validity of, 1040, 3442. VOTING. See tit. Corporations. by co-operative corporations, 653zb. 1296 INDEX. [References are to sections.] VOTING TRUST. See tit. Corporations. WAGERING contracts. See tit. Contracts. insurance, as to, 2558. WAGES. See tits. Master and Servant; Nates and Seamen. for services where there is no employment, 2078. of minor, 212. personal representatives entitled to receive, when, 20G2. wife's earnings, as to, 169. WAGON ROAD CORPORATIONS articles of incorporation. See tit. Corporations. what must contaiti, 291. bridges and ferries. See tit. Bridges, Ferry, Wliarf, Chute and Pier Corporations. bridges or ferries on line, 514. not to be charged on highways or public roads, 515. bridges or ferries, rates must be posted, 516. tolls, as to, in general limit of, .')14. jienalty for violation, 514. commissioner.s to act in conjunction with surveyor, 512. crossing.s, as to, 513. forfeiture of franchise, 514. franchise of, 524. horseless vehicles, franchise to construct road for, 524. how to be laid out, 511. hypothecation of property, 522. mortgage or hypothecation of property, 522. natural person, ownership by, 523. opening highway taken as, 513. penalty for excessive toll, 514. for trespass on property of, 520. posting date of franchise, 516. rate of tolls, 516. reduction of tolls, when, 521. revenue, how apportioned, 521. subscription amount necessary to entitle to file articles, 293. toll-gate, as to, 513. toll-gatherer, right to detain until payment made, 517. not to detain unreasonably, 518. survey and map to be filed and approved, 513. 1297 INDEX. [References are to sections.] WAGON ROAD CORPORATIONS (continued). tolls. See "Bridges or Ferries on line" this title. avoiding- tolls, penalty for, 519. - persons detained until toll paid, 517. rates to be posted at gate, 516. reduced, when, 521. to be reduced, when, 521. trespass on property of, penalty, 520. unnecessary detention or overcharges, damages for, 518. what may be charged, 514. WAIVER communication of in insurance, 2569. lunatic's rights not lost by, 40. of demund by pledgeor or debtor, 3004. of notice of sale of pledged property, .3003. ■ of objections to offer of performance, 1501. of option as to delivery of goods purchased, 1501. of presentment and notice, 3159. of protest, 3160. of provisions of the code, by stipulation, 3268. of sale of corporated stock, 349. \V^\IA'ER OF COXDITIOX. See tit. Condition. AVAR dissolution of partnership by, 2450. AVAREHOUSE RECEIPT classification and effect of, 1858b. indorsement of negotiable receipt, 1858c. negotiability, 1858d. not to be issued, when, 1858. not to issue except, 1858. penalties, 1858d. requisites of, 1858b. second receipt, 1858. transfer of propert>' l:>y indorsement of, 1858b. AVAREHOUSEMEX. See tit. Warehouse Receipt. liabilities, generally, 1858f. liability for loss by fire, 1858f. non-negotiable receipt and its effect, 1858d. penalties and liabilities, 1858f. property not to be removed from witliout consent in writing 1858a. receipts of. See tit. AVarehouse Receipts. removal of property, written consent necessary, 1858a. transfer of property in, by indorsement of receipt, 1858b. 1298 INDEX. [References are to sections.] WARRANT OF AUTHORITY breach of by agent, damages for, 3318. AV VRRANTV. See tit. Sale. agent's authority with reference to, 2323, 2342. breach of, rights of party, 17S6. by indorsement, 3116. covenants for, 1463. definition of, 1763. implied in contract of sale, when, 1764. in exchange of money, 1807. in insurance. See tit. Insurauoe. lineal and collateral warranties abolished, 1115. of money, on exchange, 1804. of quality of personal property, damages for breach of, 3312. for special purposes, damages for breach of, 3314. of title, 1765. of title to personal property, damages for breach of, 3313. on judicial sale, 1777. on sale by sample, 1766. where buyer relies on statement of seller, 1767. WATER-RIGHTS maintenance of flow of water in stream to canal takes, 1410'.i. AVATER\VAVS teleplione ar^d telegraph lines along, 536. AVAY. See tit. Right of Way. as to boundary by. See tit. Ways, Boundaries by. WAYS OP NECESSITY. See tits. Easements; Servitude. WAYS, BOUNDARIES BY. See tit. Boundaries. as to, 831. lateral and subjacent support, as to, 832. AVEIGHING AND MEASURING. See lit. Tndentiiicatiou. WHARF. See tits. Bridge.v, Ferry, AAliarf, Cliute and Pier Cor- porations. \AHARFI\GER. See tit. AVarehousemen. AA IDOAA^ inheritance by. See til. Sueoes«l«»n. legaey to cliar,i;ed witli doVits of testator, wlien, 13G1. inlei't'st on, acci'ucs wlioii. 130!). succession of. See tits. Conmiunity Property! iliishand and Wife; Sueoession. 1299 INDEX. [References are to sections.] WIPE. See tits. Community Property; Hu.sband and Wife; Wills. inherits from husband, 1400. succeeds, when. See tit. Community Property; Husband and W^ife; Succession. WIFE'S DEBTS. See tits. Community Property; Husband and W^ife. WIFE'S VOID CONTRACT. See tits. Contract; Husband and Wife. AVIL.FUL, MISCONDUCT. See tit. Damages. WILLS advancements. See tit. Advancements. are ademptions, when. See tit. Ademptions. after-born child revokes, when, 1306. annuity. See tit. Annuity. as to who may make a will, 1270. bequest of interest and income, accrues from, when, 1366. of residue, effect of, 1333. vests, when, 1341. certain words, effect of use of, 1334. charitable bequests. See tit. Charitable Uses and Bequests. charitable uses and bequests. See tit. Charitable Uses and Bequests. child born after testator's death. See tits. After-born Child; Posthumous Child. takes under will, when, l.'iHg. codicil. See tit. Codicil. probate of. See tit. Probate. competency of witness to, 1280. condition precedent, what is in, 1348. effect of, 1347. when deemed performed, 1348. condition subsequent, 1349. conditional devises and bequests, 1345. conditional will, 1281. construction of. See "Rules of Construction" this title, construction of particular words in. See tit. "Words an»l Phrases. conversion takes effect, when, 1338. death of devisee or legatee before testator, effect upon in- terest in remainder, 1344. devise or bequest to a class, 1337. of all real or personal property, 1331. devise vests, when, 1341. 1300 INDEX. [References are to sections.] WILLS (continued). devisees take as tenants in common, 1350. estates devised chargeable with debts, 1358, 1359. execution according: to tenor, 1371. execution and revocation of wills, 1270. gifts 1o subscribing- witnesses void, 1282. harmonizing various parts of will, 1321. holographic, definition of, 1277. in what case devise not affected, 1322. intention to be ascertained from the will, 1318. interpretation, rules of, 1319. law governing validity and interpretation, 1376. mistakes in, 1340. mutual T«-1I1 as to generally, 1279. probate of, 1291. proof of nuncupative wills, 1290. requisite of valid, 1289. nature and designation of legacies. See tit. Legacies. olographic. See "Holographic" this title, power to devise, how executed by terms of will, 1330. republication by codicil as to generally, 1287. nuncupative will, how executed, 1288. rules of construction as to generally, 1319. certain words not necessary to pass fee, 1329. harmonizing various parts of, 1321. intestacy to be avoided, 1326. several instruments to be taken together, 1320. technical words not necessary, 1328. technical words used in, effect of, 1327. where ambiguous or doubtful, ' 1323. words taken in ordinary sense, 1324. words to receive operative construction, 1325. specific devises and legacies. See tit. Legacies. testator's intention to be carried out, 1317. to be proved within what time, 1364. what may pass by will, 1274. who may take by will, 1275. , will made out of state not valid, wlion, 1285. will of married woman. See tit. I>inrrie«l Women. may make, alter, or revoke will, 1273. witness subscribing will, competency of. See tit. AVitnesH. as to generally, 1280. 1301 INDEX. [References are to sections.] WILLS (continued). witness to, creditor competent, 1282. witness to add residence, 1278. witness to will as devisee, 1283. words of donation and limitation, 1325. to what time words refer, 1336. words of to be taken in ordinary sense, 1324. , T»Titten will as to, how executed, 1276. after-born child, unprovided for, revokes. See tits. After- born Child; Po.sthuinous Child. as to generally, 1306. contract of sale not revocation, 1301. conveyance, when not a revocation, 1303. effect of marriage , of man on his will, 1299. of woman on her will, 1300. evidence of revocation, 1293. mortgage not a revocation, 1302. revocation by codicil, 1305. by marriage, and birth of issue, 1298. by subsequent will, 1296. antecedent not revived by, 1297. of duplicate, 1295. WINE sale of delivery necessary to validity, 3440. recording, 3440. to be in writing, 3440. WITNESS. See tit. Wills. acknowledgment of, 1185. creditor may be to will, 1282. "depose," definition of, 14. to nuncupative will, 1197. to prove handwriting, 1199. not necessary to holographic will, 1277. oath to in taking acknowledgment, 1185. I)rivileged, testimony of. Is, 47. recorded instrument, may be proved otherwise than by sub- scribing, 1197. subscribing instrument may be proved otherwise than by, 1197. manner of proving instrument by, 1196, 1197. 1302 I INDEX. [References are to sections.] WITNESS (continued). subscribiug: (continued). to be known to officer taking' proof, 1196, 1197. to prove what, 1197. subscription of, definition of, 14. testify, definition of, 14. to prove execution of instrument must be personally known to officer, 1202. witness must prove what, 1197. to win as to, 1276, 1279. cannot take under as by succession, 12S3. gift to, 1282. who is a devisee, ri.s:hts of, 1283. WOOD right to take, 802. AVOODS - damages for firing, u346a. "WORDS" meaning of in certain remainders, 1071. WORDS AND PHRASES "agent" includes what, 2295. "create debts" meaning of, 579. "descendants," in will, 1334. "family" meaning of in will, 1334. "for whom it may concern" in policy of insurance, 2592. "heirs" in will, 1334. how construed, 13. ♦*i.ssue" in will, 1334. moaning of in certain remainders, 1071. "legal representatives" in will, 1334. "near relations" in will, 1334. "nearest of kin" in will, 1334. "next of kin" in will, 1334. "personal representatives" in will, 1334. "relations" in will, 1334. "relatives" in will, 1334. "representatives" in will, 1334. AVORDS OP INHERITANCE unnecessary to transfer fee, 1072. W^ORKMAN lien on threshing machine, etc., 3061. 1303 INDEX. [References are to sections.] WORKMAXSHIP combined with propertj' of another, ownership of article produced, 1214. WRKCKS AXD WRECKED PROPERTY deposit in case of shipwreck, 1815. duty of depositary, 1816. wag-es of seamen not lost by, 2058. \VRITI\«. Sec tit. .statute of Frauds, contract in how altered, 1698. prevented by fraud from being in, specific enforcement, 1623. printed part controlled by, 1651. ■ erroneous disregard, how far, 1640. fraud, prevent putting contract in, enforcement, 1623. in.strnn)ent in consideration presumed, 1614. negotiable, transferable, 1459. intention of i)arties, how ascertained, 1637. private property in, 985. productions of the mind in, property of, 980, 984. supersedes prior oral negotiations, 625. transfer must be in, when, 1135. WRITTE.X IXSTR13IENT consideration presumed, 1614. AVRITTEX RECEIPT debtor has a right to require, 1499. AVROXG consent to, no wrong suffered, 3515. lunatics liable for, 41. minors liable for, 41. own, advantage cannot be taken of, 3517. parties equally in the, courts will grant no relief, 3524. remedy for every, 3523. AVROXGFIL OCCUPAXCY damages for, 3334. YEARLY WORK. See tits. Development AVork; 3Iining Claims. 1304 ^ UCSmnHlRNHI (,|()NAl 1 1I!HAI!Y I ACII IIY AA 000 9^4 535 8 iij^ ANGEB