(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Children's Library | Biodiversity Heritage Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

Full text of "The civil code of the State of California : as enacted in 1872, amended at subsequent sessions, and adapted to the constitution of 1879, with references to the decisions in which the code was cited, and an appendix of general laws upon the subjects embraced in the code"

This is a digital copy of a book that was preserved for generations on library shelves before it was carefully scanned by Google as part of a project 
to make the world's books discoverable online. 

It has survived long enough for the copyright to expire and the book to enter the public domain. A public domain book is one that was never subject 
to copyright or whose legal copyright term has expired. Whether a book is in the public domain may vary country to country. Public domain books 
are our gateways to the past, representing a wealth of history, culture and knowledge that's often difficult to discover. 

Marks, notations and other marginalia present in the original volume will appear in this file - a reminder of this book's long journey from the 
publisher to a library and finally to you. 

Usage guidelines 

Google is proud to partner with libraries to digitize public domain materials and make them widely accessible. Public domain books belong to the 
public and we are merely their custodians. Nevertheless, this work is expensive, so in order to keep providing this resource, we have taken steps to 
prevent abuse by commercial parties, including placing technical restrictions on automated querying. 

We also ask that you: 

+ Make non-commercial use of the files We designed Google Book Search for use by individuals, and we request that you use these files for 
personal, non-commercial purposes. 

+ Refrain from automated querying Do not send automated queries of any sort to Google's system: If you are conducting research on machine 
translation, optical character recognition or other areas where access to a large amount of text is helpful, please contact us. We encourage the 
use of public domain materials for these purposes and may be able to help. 

+ Maintain attribution The Google "watermark" you see on each file is essential for informing people about this project and helping them find 
additional materials through Google Book Search. Please do not remove it. 

+ Keep it legal Whatever your use, remember that you are responsible for ensuring that what you are doing is legal. Do not assume that just 
because we believe a book is in the public domain for users in the United States, that the work is also in the public domain for users in other 
countries. Whether a book is still in copyright varies from country to country, and we can't offer guidance on whether any specific use of 
any specific book is allowed. Please do not assume that a book's appearance in Google Book Search means it can be used in any manner 
anywhere in the world. Copyright infringement liability can be quite severe. 

About Google Book Search 

Google's mission is to organize the world's information and to make it universally accessible and useful. Google Book Search helps readers 
discover the world's books while helping authors and publishers reach new audiences. You can search through the full text of this book on the web 



at |http : //books . google . com/ 





HARVARD LAW SCHOOL 
LIBRARY 



yGoogle 



Digitized by VjOOQIC 



,y Google 



^"^ ot 



j 



W.M.GJRDJVER. 



Digitized by VjOOQIC 



,y Google 



,y Google 



,y Google 



THE CIVIL CODE. 



,y Google 



Digitized by VjOOQIC 



C^^f'^.f /../THE c^ 

CIVIL CODE 



STATE OF CALIFORNIA, 



AS ENACTED IN 1872, AMENDED AT SUBSEQUENT SBI 

SIGNS, AND ADAPTED TO THE CONSTITUTION OF 

1879, WITH REFERENCES TO THE DECISIONS 

IN WHICH THE CODE WAS CITED, AND AN 

APPENDIX OF GENERAL LAWS UPON 

THE SUBJECTS EMBRACED IN 

THE CODE. 



CX>1IFILED BT 

ALBERT HART. S 



US [CH 



SAN FRANCISCO: 

BANCROFT-WHITNEY COMPANY., 

1891. 



P9/ 



OOPTUOBT, 1876 
Bt ALBEBT HABT. 



Digitized by VjOOQIC 



570820 

CONTENTS. 



DIVISION FIBST, 

Past I. PERSONS 

n. PERSONAL BIGHTS. 

m. PERSONAL RELATIONS U-876 

TiTLB L Marruov. 55-181 

Cbaftbr I. T6e contract of maiTiagt MhW 

IL Divorce 88-141 

IIL Husband and wife 155-181 

Trtlb n. Parkht and Child 198-8d(^ 

Chaptbr L Brbirth 193-211 

IL Byadoption 231-234 

Trlb IIL GuARDiAH AHD Ward 236-255 

lY. Master AND Sbryakt 264-271 

rARTlY. CORPORATIONS 283-641 

TiTLB I. GSHRRAL PROVISIOIIB APPUCABLB 

TO ALL O0RPORATIOK8. 283-40r 

Cbaftkr I. Fonnation of corporations 283-^32( 

IL Corporate stock 322-34fl 

IIL Corporate powers 354-392 

lY. Extension and dissolution of cor^ 

porations 899-40r 

TlTLR IL IHSURAKCB CORPORATIONS 414-44C 

Chapter L General provisions 414-42r 

IL Fire and marine insurance cor- 
porations 424-437 

III. Mutual life, health, and acci- 

^ dent insurance corporations . . 437-459 

TrrLB IIL Railroad Corporations 454-491 

Chapter I. Officers and corporate stock 454-469 

IL Enumeration of powers 465-47t 

IIL Business, how conducted 479-491 

TklUB IV. Street Railroad Corporations. . 497-611 
V, Wagon Road Corporations 512-52* 



riil CONTENTS. 

Title VI. Bbidgb, Ferbt, Wharf, Chute, 

AND Pier Corporations 529-531 

VII. Teucoraph Corporations 536-541 

VIII. Water and Canal Corporations. 548-551 

IX. Homestead Corporations 557-56% 

X. Savings and Loan Corporations. 571-579 

XL Mining Corporations 584-^7 

XII. Beligious, Social, and Benevo- 
lent Corporations 693-602 

Xni. Cemetery Corporations. 608-614 

XIV. Agricultural Fair Corporations . 620-623 

XV. Gas C0RPORAT10.NS 628-633 

XVI. Land AND Building Corporations. 639-648 



DIVISION SECOND. 
PamL PBOPKRTT in general... 654-749 

TmjB I. Nature of Propertt 654-663 

II. Ownership 669-743 

Chapter L Owners 669-673 

II. Modifications of ownership 678-726 

IIL Righto of owners 732-733 

IV. Termination of ownership. 739-743 

Title III. General Definitions 748-749 

Pabt XL REAL OR IMMOVABLE PROPERTT 755-940 

Title I. General Provisions 755 

II. Estates in Real Property 761-811 

Chapter I. Estates in general 761-781 

II. Termination of esUtes. 789-793 

IIL Servitudes 801-811 

Title III. Rights and Obligations of Owners. 818-841 

Chapter L Rights of owners 818-834 

11. Obligations of owners. 840-841 

Title IV. Uses and Trusts. 847-871 

V. Powers (repealed). 

r^BTin. PERSONAL OR MOVABLE PROPERTY. 946-994 

Title I. Personal Property in General. .... 946-947 
II. Particular Kinds of Personal Prop- 
erty 9534)94 

Chapter I. Things in action 953-954 

IL Shipping 960-973 

III. Products of the mind 980-98i 

IV. Other kinds of personal property 991-694 



OONTBXTf. 



fAMt IV. ACQUISITION OF PROPERTY 1IN)0-I4a 

Title I. Modes im wnicH Pbopebtt mat 

KE ACQinKSD 1000-1001 

11. OccuPAMCY 1006-1007 

III. Accession 1013-1081 

Chafteb I. To real property 1013-1019 

U. To personal property 108&-1038 

TiTLB lY. Transfer 1039-1231 

Chaptbb I. Transfer in general 103»-1086 

II. Transfer of real proper^ .... 1091-1115 

III. Transfer of personal property. 1135-1153 
lY. Recording transfexa of real 

property 115S-1S17 

V. Unlawful transfers 1227-1231 

TmJE y. Homesteads 1237-1269 

Chapter I. General provisions 1237-1961 

II. Homestead of the head of a 

family 1262-1265 

HI. Homesteadof other persons... 1266-1269 

TaiMYl. Wills 1270-1377 

Chafteb I. Execution and revocation of 

wiUs 1270-1813 

II. Interpretation of wills 1317-1351 

IIL General provisions relating to 

wills 1357-1877 

TiTLB Vn. SuocESSiov 1383-1408 

YIII. Water Rights U10-144i 



DIVISION THIRD. 

Fast I. OBLIGATIONS IK GENERAL. 1427-1548 

TiTLB I. Definition of Obligations 1427-1428 

II. Interpbetation of Obligations.. 1429-1451 

Chapter I. General rules of interpretation 1429 

II. Joint or several obligations. . . 1430-1432 

III. Ck)nditional obligations 1434-1442 

lY. Alternative obligations 1448-1451 

TlXLS m. Tbansfbr of Obligations 1457-1467 

lY. Extinction of Obligations 1473-1543 

Chapter I. Performance 1473-1479 

II. Offer of performance 1485-1505 

IIL Prevention of performance or 

offer 1511-1511 



K 0OHTXHT8. 

Cbaptkb IY. Accord and satisfaction 1591-1524 

V. Novation 1580-15M 

VI. Release 1541-154a 

Pabv n. .CONTBACTS 1540-1701 

Title 1. Natukk op a CJoiTtract 1549-1619 

Chapter I. Definition 1549-1550 

II. Parties 1556-1559 

III. Consent 1565-1589 

IV. Object 1595-1599 

V. Consideration 1605-1615 

Title U. Manner of creating Contracts. 1619-1629 

III. Interpretation op Contracts. . . . 1635-1661 

IV. Unlawful Contracts 1667-1676 

V. Extinction of Contracts 1682-1701 

Chapter 1. Contracts, how extinguished 1682 

II. Rescission 1688-1691 

III. Alteration and cancellation... 1697-1701 

Pabt III. OBLIGATIONS IMPOSED BY LAW... 1708-1715 

Paw rv. OBLIGATIONS ARISING FROM PAR- 
TICULAR TRANSACTIONS 1721-3268 

TitLB L Sale 1721-1798 

Chapter I. General provisions 1721-1741 

II. Rights and obligations of the 

seller 1748-1778 

III. Rights and obligations of the 

buver 1784-1786 

IV. Sale by auction 1792-1798 

Title IL Exchange 1804-1807 

m. Deposit 1813-1878 

Chapter I. Deposit in general 1813-1827 

II. Deposit for keeping 1833-1872 

in. Deposit for exchange 1878 

Title IV. Loan 1844-1920 

Chapter I. Loan for use 1844-1896 

11. Loan for exchange 1902-1906 

III. Loan of monev 1912-1920 

Title V. Hiring ' 1925-1959 

Chapter I. Hiring in general 1925-1935 

n. Hiring of reai property 1941-1950 

III. Hiring of personal property.. 1955-195S 
Title VI. Service 1965-2079 

Chapter I. Service with employment.. . . . 1965-2003 

II. Particular employmento 2009-2072 

III. Service without employment. 2078-2079 



OOXTSVM. XI 

teiiB VIL Carbiaos ;. 9065-9900 

ChaftkbL Gankge in gUMral 9065-9000 

IL Carriage of persons 9096-9104 

m. Carriage of property 9110-9151 

lY. Carriage of messages. 9161-^69 

v. Common carriers 9166-9909 

teu Vni. Trust 9915-2269 

Chapter I. Trusts in general 9215-9944 

il. Trusts for the benefit of th^rd 

persons 9250-2289 

TmJE DT. Agbhct 9995-2380 

Chaftbr L Agency in general 9295-2366 

n. Particular agencies 2362-2369 

TiTLB X. Partksrship. 9395-2520 

Chaftbr I. Partnership in general 2395-2418 

II. General partnership 2294-2471 

III. Special partnership 9477-2510 

lY. Mining partnership 2511-2520 

TiTLB XI. Iksurancb 2527-9766 

Chapter I. Insurance in general. 2527-2649 

II. Marine insurance 2655-2746 

ni. Fire insurance 2752-2756 

lY. Life and health insurance. . . . 276^2766 

IteLBXII. INDBMIUTT 2972-2781 

Xni. GUARAHTT 2787-2866 

Chapter I. Guaranty in general 2787-2825 

II. SuretYi£lp 2831-2866 

IhlbXIY. Liew 2872-3080 

Chapter I. Liens in general 2872-2913 

IL Mortgage 2920-2971 

IIL Pledge 2986-3011 

lY. Bottomry 8017-3029 

Y. Be8pon(fentia. 3036-3040 

YL Otherliens 3046-3060 

YIL Stoppage in transit. 3076-3080 

Title XY. Negotiable InsTRUMENTg 3086-3262 

Chapter I. Negotiable instruments in gen- 
eral 3086-3165 

n. Bills of exchange 3171-3238 

IIL Promissory notes 3244-3248 

lY. Checks 3254-3255 

Y. hank notes and certificates of 

deposit 3261-3269 

TnutXYl. Gbsxral PBOVI8IOJI8 3261 



,y Google 



0OVTXVT8. 



DIVISION FOURTH. 

PabvI. belief 8274-84SI 

TiTLB I. RxusF nr obhebal. 8274-9279 

II. COMFBKSATOBT RsuEP. 8281-3360 

Chaptbb I. Damages in eeneral 3281-3294 

II. Measure of damages. 3300-3360 

TiTLB III. Spbcifio AMD Prbvbntiyb Rbubf. 3366-3428 

Chaptbb I. General principles 3366-3369 

IL Specific reUef 8376-3414 

lU. Preventive relief 8420-3428 

Paxth. special relations of debtor 

and creditor 8429-8478 

Titlb I. Gbneral Prdiciplbs. 8429-8438 

II. Fbaudulemt Imstbumests and 

TBAN8FBB8 3439-8448 

m. ASSIGKMBNTS FOB THB BeIOSFIT 

OF Cbeditobs. 8449-8478 

Pabt in. NUISANCK 8479-8508 

Titlb L Gbnbbal Pbinciflbs. 8479-3484 

IL PuBuc Nuisances 8490-8495 

m. Pbiyatb Nuisances. 8501-8508 

Past IY. liAXIMS OF JURISPRUDENCE 8609-«a 



,y Google 



SUMMARY OP CONl^NTS. 



PBELQIIKABT PBOYISIONS t-tl 

DIVISION L RELATING TO PERSONS »44M 



Pabt I. Pebsoks 

n. Pbbsohal Rights. 4S-60 

III. Pbbsonal Rxlatiovs 5^976 

lY. COBFOBATIOirS 



DinSION n. RELATING TO PROPERTY. 654-140 

Pabt I. PROPsinT nr Gbuxbai* 654-74t 

n. Real Pbopertt 765-MO 

IIL Pbrsokal Property. 958-M4 

IV, AcQUismoir of Pbofbbtt 1000-14SI 

DIVISION IIL RELATING TO OBLIGATIONS.. 1487-4968 

Pabt I. Obuoatiohs m Gbhebal. ....... 1497-1546 

n. COKTBACTS 1549-1701 

ni. Obligationb mrosED by Law. . . 1706-1715 
IV. Abisino fbom Pabticulab Trajtb- 

ACTIOJI8 1721-6966 

PrVISION IV. GENERAL PROVISIONS RE- 
LATING TO THE PRECEDING PROVI- 
SIONS 8974-65a 

PabtL Reuef 6974-8426 

II. Relatiohs of Debtor ajtd Cbbd- 

ROB 6429-8476 

ra. NUWAWCB. 8479-8606 

IV. JAATTua OF JURXSPRVDEVCB 8509-8541 



,y Google 



Digitized by VjOOQIC 



THE CIVIL CODE 



or TH> 



STATE OF CALIFORNIA. 



IN FOUB DIVISION& 



Digitized by VjOOQIC 



,y Google 



THE CIVIL CODE 

or Tin 
STATE OF CALIFORNIA. 



AN ACT TO ESTABLISH A CT^IL COliA. 
[Apfrotbd, March 2l8t, 1873.] 



The People of the StaU of California, represented in Senatt tmi 
Auembly, do enact ae foUeum 

TITLE OF THE ACT. 

§ 1. This Act shfdl be known as The Civil Coi>b or ths 
Stats of California, and is in Four DiTisions, as follows ;— 

L The First relating to Persons, 
n. The Second to Property. 
nL The Third to Obligations. 

IV. The Fourth contains General Provisions relatfaig It 
the three Preceding Divisions. 

PRELIMINARY PROVISIONS. 

iMBca 2. When thii God« takes effect. 
8. Not retroactiye. 
4. Rules of constmctloii. 

6. ProTteions aimiUr to existing Iain, how MiislrM& 
8. Aeti<ni8, &e., not affected. 

7. Holidays. 

8. Same. 

9. Bnsinesi days. 

10. Computation of time. 

11. Oertatn acts not to be done on hoUdi^a- / 
IS. Joint authority conatrned. n r^r^ni\r> " 



§§ 2-8 PRELIUIKART PROVISIOITB. 4 

BionOB 18. Words aad phnms, how eonstriMd. 
14. Certain terms defined. 
16. Good faith, what oonstitntef. (Repealed.) 

16. Hegnm of care and dlUgenee. (Bepealed.) 

17. Degrees of n^ligenee. (Bepealed.) 

18. Notlee, actual and constractiye. 

19. Coniitnietite notiee, when deemed. 
90. Bffeet of repeal. 

21. This Aet, how elted. 

§ 2* This Code takes efibct at twelve o'clock noon on tba 
Bnt da/ of January, eighteen hundred and serenty-three. 

§ 3. No part of it is retroactire, unless expressly so declared. 

§ 4. The rule of the common law, that statutes in derogatton 
thereof are to be strict!;^ construed, has no application to thi« 
Code. The Code establishes the law of this btate respecting 
the subjects to which it relates, and its provisions are to be Ub- 
erallj construed with a view to effect its objects and to promote 
ustice. 

§ 5. The provisions of this Code, so far as thej are substan- 
tiall/ the same as existing statutes octhe common law, most 
be construed as continuations thereof, and not as new enact- 
ments. 

§ 6* No action or proceeding commenced before this Code 
takes effect, and no right accrued, is affected bj its provisions. 

§ 7* Holidays, within the meaning of this Code, are : eveiy 
Sunday, the first day of January, the twenty-second day A 
February, the thirtieth day of May, the fourth day of July, 
the ninth day of September, the twenty-fifth day of Decem- 
ber, every day on which an election is held throughout the 
State, and every day appointed by the President of the United 
States or by the Governor of this State for a public fast, 
thanksgiving, or holiday. If the first day of January, the 
twenty-second day of February, the thirtieth day of May, the 
fourth day of July, the ninth day of September, or the twenty, 
fifth day of December, fall upon a Sunday, the Monday fol- 
lowing is a holiday. [Approved March 1, 1889.] 

§ 8. If the first of January, the twenty-second of Febmaryy 
the fourth of July, or the twenty-fifth of December iklls upon 
a Sunday, the Monday following is a holiday. GooqIc 



» PULIXIKABT FBOTI8IOKS. §§9 14 

§ 9. AU other days than those mentioned in thelaittw* 
lections are to be deemed business dajs for ail purposes. 

§ 10. The time in which anj act provided by law is to b« 
done is computed by excluding the first daj and including tlM 
last, unless the last day in a holiday, and then it is alio ex 
eluded. 

§ 11. Whenever any act of a secular nature, other than a 
work of necessity or mercy, is appointed by law or contract 
to be performed upon a particnlar day, which day falls upoa 
a hohday, it may be performed upon the next business oay 
with the same effect as if it had been perfomMd upon the daj 
appointed. 

S 12. Words giving a joint authority to three or more pub- 
fie officers or other persons are construed as giving such au 
fehority to a majority of them, unless it is otherwiM expressed 
IP the act giving the authority. 

§ 13. Words and phrases are construed according to the 
context and the approved usage of the language ; but techni- 
cal words and phrases, and such others as may have acquired 
a peculiar and appropriate meaning in law, or are defined in 
the succeeding section, are to be construed according to such 
peculiar and appropriate meaning or definition. 

§ 14. Words used in this Code in the preaent tense include 
the future as well as the present ; words used in the mascu- 
line gender include the feminine and neuter ; the singular 
number includes the plural and the plural the singular ; the 
word person includes a corporation as well as a natural per- 
son ; writing includes printing ; oath includes affirmation or 
declaration ; and every mode of oral statement under oath or 
^Vaftirmation is embraced by the term " testify," and every writ- 
^ ^^*n one in the term " depose ; " signature or subscription in- 
*^ iludcs mark, when the person cannot write, his name being 
written near it, and written by a person who writes his own 
^ name as a witness. The following words also have in this 
^ Code the signification attached to them in this section, unlesf 
otherwise apparent from the context : 
1. The word " property " includes property real and per 

Digitized by VjOOQIC 



|§ 16-21 P9SLI1IINART PROTISIONS. € 

2. The words " real property " are coextensive with landsi 
^nements, and hereditaments ; 

3. The words " personal proiMrtj " include money, goods, 
chattels, thing^s in action, and evidences of deht ; 

4. The word "month" means a calendar month, nnlMi 
otherwise expressed ; and, 

5. The word " will " includes codicils. [In effect July 1, 
1876.] 

MGsI.109;68Cal. 867. 

f§ 15, I69 17 of said Code are repealed. [In effect JuaJ 
1, 1874.] 

§ 18. Notice is: 

1. Actnal — which consists in express information of a ftd 
or, 

2. Constnictiye — which is imputed hy law, 

§ 19. Every person who has actual notice of circnmstanoet 
mmcient to put a prudent man upon inquiry as to a particular 
foct, has constructive notice of tne fact itself in all cases in 
which, hy prosecuting such inquiry, he might have learned 
inch fact. [In effect July, 1874.1 

U Gsl. 23, 862, 662 ; 66 CaL 117, 161, 629 ; 67 Gsl. 828, 899. 

§ 20. No statute, law, or rule is continued in force because 
It is coidistent with the provisions of this Code on. the same 
subject ; but in all cases provided for by this Code, all stat- 
utes, laws, and rules heretofore in force in this State, whether 
consistent or not with the provisions of this Code, unless ex- 
pressly continued in force by it, are repealed or abrogated. 

This repeal or abrogation does not revive any former law 
heretofore repealed, nor does it affect any right already ex- 
isting or accrued, or any action or proceeding already takao, 
except as in this Code provided. 

§ 21. This act, whenever dted, enumerated, referred to, 
K amended, may be designated simply as "Thb Citik 
DoDB," adding, when necessary, the number of the Bection. 



,y Google 



DIVISION FIRST. 



Past I PERSONS, §§ 25-42. 

n. PERSONAL RIGHTS, §§ 48-50. 
m. PERSONAL RELATIONS, §§ 5^27& 
IV. CORPORATIONS. §S 28J-64& 



Digitized by VjOOQIC 



,y Google 



PART L 



PERSONa 

1 95. Snnon, who ten. 
96 PttriodB of minoxl^, haw mlitwUtoJ 
97. Adults, who aie. 

28. Status of minon, how ohanged. (Bty— 1i< ) 
2B. Unborn child. 
80. FttMns made adtdta by othar Staftat, eonsldarid as mA M 

this State, when domiciled herefai. (Bepealed.) 
n. Minors by the laws of other State or eofontKy, how 

ered in this State. (Bepsaled.) 
82. Custody of minors. 
88. Minors cannot siTe a delegation ci poweBi 
'Bofmimnr^i 



84. Contracts 

85. When minor may d«MfBnn. 

86. Cannot disaflirm omtraot lor neeenaclaa. 

87. Nor eertain obli0fttions. 

88 Cmttraets of persons without undeiBtaiKling. 

88. Contracts of other insane persons. 

40 Powers of persons whose incapacity has been adjvted. 

41. Minors Uable for wrongs, but nol liahla lot eauaiplaiy 4m» 

42. MinoEB maj anforae thdr zV^ti. 

§ 26. MiHORsare: 

1. Males under twenlnr-one years of age ; 

2. Females under eignteen years of age. 

§ 26. The periods specified in the preceding section miifl 
be caknlated horn the first minute of the day on which per- 
Knui are bom to the same minute of the corresponding day 
eompleting the period of minority. 

§ 27. AH other persons are adults. 

§ 28 of said Code is repealed. [In effect July 1, 1874.] 

f 29. A child conceived, but not yet bom, is to be deemed 
an existing person, so fiir as may be necessary for its interests 
b the event of its subsequent birth. ,3^,3^ by Google 



|§ 30-88. FEBSOITB. 10 

§§ 30, 81 of laid Code are repealed. [In e6fect Jnlj 1, 
1874.] 

§ 82. The custodj of minon and persons of unsound mind 
is regulated bjr Part IIL of this diTision. 

§ 88. A minor cannot give a delegation of power, nor 
under the age of eighteen, make a contract relatmg to reai 
property, or anj interest therein, or relating to anj personal 
property not in his immediate possession or controL [In 
effect July 1, 1874.] 

§ 84. A minor may make any other contract than as above 
ppecified, in the same manner as an adult, subject only to his 
power of disaffirmance under the provisions of this title, and 
subject to the provisions of the Titles on Maniage, and on 
Master and Servant. [In effect July 1, 1874.] 

§ 86. In all cases other than those specified in sections 
tiurty-fiix and thirty-seven, the contract of a minor, if made 
whilst he is under the age of eighteen, ma^ be disaffirmed by 
the minor himself, either before his majority or within a rea- 
sonable time afterwards ; or, in case of his death ¥rithin that 
period, by his heirs or personal representatives ; and if the 
contract be made by the minor whilst he is over the age of 
eighteen, it may be disaffirmed in like manner upon restoring 
the consideration to the party from whom it was received, or 
paying its equivalent. [In effect July 1, 1874.] 

§ 88« A minor cannot disaffirm a contract, otherwise valid, 
to pay the reasonable value of things necessarv for his sup- 
port, or that of his family, entered into by him when not under 
the care of a parent or guardian able to provide for him or 
them. [In effect July 1, 1874.] 

§ 87. A minor cannot disaffiim an obligation, otherwise 
\alid, entered into by him under the express authority oi 
direction of a statute. 

§ 88. A person entirely without understanding has n« 
power to make a contract of any kind, but he is liable for the 
reasonable value of things furnished to him necessary for hit 
support or the support of his family [In effect Jidy l^ 1874 



11 PBEsoKt. SI 89-42 

S 39. A conyejance or other contract of a penon of mi- 
lound mind, bat not eutirelj without nnderstanding, mada 
before his incapacity has been jndiciallj determined, is sabject 
to rescission, as provided in the Chapter on Rescisiion of tUs 
Code. [In effect July 1, 1874.] 

§ 40. After his incapacity has been jndiciallj determined, 
a person of unsound mmd can make no conveyanoe or othet 
oontracty nor delegate any power, nor waive any right, until his 
restoration to capacity. But a certificate from the mediciU 
superintendent or resident physician of the insane asrlum to 
which such person maj have been committed, showing that 
such person had been discharged therefrom cured and restored 
to reason, shall establish the presumption of legal capacity in 
such person from the time of such diticharge. [In e£tect May 
29, 1878.1 

57CftI.531. 

§ 41. A minor, or person of unsound mind, of whaterer 
degree, is civilly liable for a wrong done b^ him, bnt is not 
liable in exemplary damages unless at the time of the act he 
was capable of Knowing that it was wrongfoL 

I 42. A minor may enforce his rights by civil action, oi 
other legal proceedings, in the same manner as a person of lUl 
ig^ except that a guardian must conduct the saoia. 



,y Google 



PAETIL 



PERSONAL RIGHTa 

48. General personal rights. 

44. Defamauon, what. 

45. Libel, what. 

46. Slander, what. 

47. VHiat conunnnications are privileged. 

48. Malice not inferred. 

49. Protection to personal relations. 
60. Right to use force. 

§ 43. Besidbb the personal rights mentioned or Teoognued 
In the Political Code, every person has, subject to the 
qualifications and restrictions provided by law, the right of 
protection from bodily restraint or harm, from personal insalt^ 
from defamation, and from injury to his personal relations. 

dee Pol. Code, §§ 87, 60-60 ; Penal Code, §§ 846-349 

§ 44. Defamation is efiected by : 

1. Libel; 

2. Slander. 

§ 45. Libel is a false and nnprivileged publication by 
writing, printing, picture, effigy, or other fixed representation 
to the eye, which exposes any person to hatrea, con^|mpt, 
ridicule, or obloqny, or which causes him to be shuniiei or 
avoided, or which has a tendency to injure him in his occupa- 
tion. 

§ 46. Slander is a false and unprivileged pnblicadon othei 
than libel, which : 

1. Charges any person with crime, or with having been in- 
dieted, convicted, or punished for crime ; 

2. Impntes in him the present existence of an infectioiii^ 
contagions, or loathsome disease ; 

8. Tends directly to injure him in respect tojiis office, pro 

gitized by LiOO^e 



(3 PERSONAL RTOHTt. §§ 47*60 

fession, trade, or business, either by imputing to him genenl 
disqualtfication in those respects which the c^Bee or oiner o«v 
enpation peculiarly requires, or bj impotiiig swuthing with 
reference to his office, profession, trade, or busiiiesi that hm 
a natural tendency to lessen its profit ; 

4. Imputes to him impotence or a want of chastity ; or, 

5. Which, by natural conseqaence, causes actnal damage. 

§ 47. A privileged publication is one made : 
f\. 1. In the proper discharge of an official duty ; 
c ^v.2. In any legislative or judicial proceeding, or in any 3thM 
V^ official proceeding authorized by law ; 
^v 3. In a communication, without malice, to a person falter- 
I ' astei therein, by one who is also interested, or by one who 
Tp stands in such a relation to the person interested as to afford 
vVs^a reasonable ground for supposmg the motive for the com- 
munication innocent, or who is requested by the person inter- 
ested to give the information ; 

4. B^ a fail and true report, without malice, of a judicial, 
le^lative, or other public official proceeding, or of anything 
^ said in the course thereof. [In effect July 1, 1874.] 



^ 

^ 



§ 48. In the cases provided for in Subdivisions S and 4 of 
the preceding section, malice is not inferred from the commn- 
^_ nication or publication. 

f 49. The rights of personal relation forbid : 

1. The abduction of a husband from his wife, or of a pav- 
flot from his child ; 

2. The abduction or enticement of a wife from her hns- 
tand, of a child from a parent or from a guardian entitled to 
its eastody, or of a servant from his master ; 

:3. The 'seduction of a wife, daughter, orphan sister, or ser- 
famt I 

4. Any injury to a servant which affects his ability to serve 
Ids master. 

I SO. Any necessary force may be used to^ protect im 
«rrong£ul injury the person or property of one's self, orof a 
mjfe, husband, child, parent, or other relative, or member Ok 
ione'siarailv, or of a ward, senant, master, or guest. 

lln effect July l^ 1874.] 

Uwful fwl«*ai»c^ to tb« eomwIMon of >«*»»*''*^-?*' !i™ 

M HPT flfti jitized by VnOO^ IC 



PAET IIL 



PERSONAL RELATIONS. 

TiiUB L Mabriaoe, §§ ft5-181. 

IL Parent and Child, §§ 193-230. 

III. Guardian and Ward, §§ 236-258. 

IV. Master and Servant, §§ 264-27C. 



TITLE L 

MARRIAGE. 

Chattkb I. The Contract of RIarriaob, §§ W-M^ 
II. Divorce, §§ 82-148. 
III. Husband and Wife, §§ 155-181. 



CHAPTER L 

THE CONTRACT OF MABBIAOS. 

. T. Validitt or Mabriagk, §§ 55-68. 
II. Authentication or Marriage, §§ 68-78. 
in. Judicial Determination op Void Ma&ruom, | 89 

ARTICLE I. 

VALIDITY OF MARRIAGE. 

66. What eoiMtltutes marriage. 

66. Minors capable of contracting marriag*. 

67. Marriage, how manifested and proved 

68. Certain marriages voidable. 
68. Incompetency of parties to. 

60. Of whites and negroes or mulattoes, Told. 

61. Polygamy forbidden. 

62. Released from marriage contract, when. 
68. Marriages contracted without tbe State. 

§ 66. Marriage is a personal relation arising ont of a eivfl 
tontract, to which the consent of parties capable of makiBf 



'/V 



i KAXBULOB. IS 56-61 

it is neceanr^. Conaent alone will not constitate marriage 
it must be followed bj a eolemnization, or bj a matoal «•> 
Rimption of marital rights, duties, or oblijiations. 
lUgamj is defin«d in Penal Code, } 2S1, snd poniohed bj H 288-4. 

§ 66. Anj unmarried male of the age of eighteen jean y 
or upwards, and anj unmarried female of the age of nft ee ii f Q 
years or upwards, and not otherwise disqualified, are capablt 
Af consenting to and consummating marriage. 

§57. Consent to and subsequent consummation of mar 
Bge may be manifested in any form, and may be proved nn 
rr der the same ^neral rules of evidence as facts in other caaea. 

§ 68. If either partj to a marriage be incapable firom 
? physical causes of entering into the marriage state, or if the 
7. consent of either be obtained by fi-aud or force, the marriage 
r. is ToidaUe. [In efiect July 1, ld74.] 
^ Penalty for falee penonatioa in marital zelatlons. Penal Code, f 628. 

§ 59. Marriages between parents and children, ancestors 
and descendants of every degree, and between brothers and 
sisters of the half as well as the whole blood, and between 
uncles and nieces or aunts and nephews, are incestuous, and 
void from the beginning, whether the relationship is legiti- 
mate or illegitimate. 
I Penalty for ineeetnons marriagefl. Penal Code, $§ 286, 869. 

i I 60. AH marriages of white persons with negfoea ot 

nalattoea are illegal and void. 

I § 61. A subsequent marriage contracted by any persoa 

' during the life of a former husband or wife of such person, 

. V with any person other than such former husband or wife, ii 

^ illegal and void from the beginning, unless : 

J^ I. The former marriage has been annulled or dissolved ; 

r I 2. Unless such former husband or wife was absent, and not 

>J\^ cnown to such person to be living for the space of five suc- 

^l\^ cessive years immediately preceding such^ subsequent mar 

^ .iage, or was generally reputed and was believed by such per- 

ion to be dead at the time such subsequent marriage was con- 

tected; in either of which cases the subsequent marriage is 

Digitized by VjOOQIC 



|§ 62-69 MAEBIAOS. 14 

ralid untU its nullity itt adjudged by a competent tribunal 
(la eflFect July 1, 1874.] 

Penalty for bigamy. Penal Coda, f§ 288-84 ; ezceptfmis, f 282. 

68 Oal. 219. 

§ 62. Neither party to a contiact to marry is bound by ■ 
promise made in ignorance of the other's want of poraonal 
ehastity, and either is released therefrom by unchaste condnct 
on the part of the other, unless both parties paitiapate therein. 
[InefiectJuly 1,1874.] 

§ 63. All marriages contracted without this State, whiek 
would be valid by the laws of the country in which the sami J 
were contracted, are valid in this State. ^ 

i 
ARTICLE IL 

AUTHKM T I CATIOK OF MAR RfA CIfc 

iMtMH 88. Maniage, how tolemiilMd. 
89. Ifarxlage lioenM. 

70. By whom solemniied. 

71. No particular form of soIemiiliatfaNi. 

72. Substantial requiflites. 
78. Certificate ol marriage. 

74. Certificate to parties and lecoraer. 
76. Declaration of marriage, how mad* 

76. Declaration to contain what 

77. To be aekiiowledged and reeorded. 

78. Action between tlie parties to determine TaUaify. 

79. Persons who may be married without license. 

fJ^^ 5 68. Marriage must be licensed, solemnized, authenticated. 

JTT and recorded as provided in this article ; butnon-compliance 
' W with its provisions does not invalidate any lawful mamage. 

8 69 AH persons about to be joined in marriage musk fii^ 
obtain a license therefor from the counlr derk of the ooniit^ 
in which the marriage is to be celebrated, showing : 

1. The identity ot the parties; ^ -j _ 

2. Their real and full names and places of renaence ^ 

n ^hplP &SrC8. 

4' If the male be under the age of twenty-one, or the fenmk 
Diider Jthe age of eighteen years, the consent of the father 
mother, or guardian, or of one having the charge of and 
oerson if any such be given; or that such non-aged pe«oii 
bas been previously, but is not at the time, married. For the 
ourpt^se oi ascertaining these facts, the clerk is authorized tl 



17 MABBIAGB. §§7074 

examine parties and witnesses on oath, and to receive afllda* 
vits, and he mast state such facts in the license. If the male be 
under the age of twenty-one years, or the female be under thi 
age of eighteen, and such person has not been preTionsly mar- 
ried, no Ucense shall be i8<ued by the clerk, onleas the consent 
in writing of the parents of the person under age, or of one of 
Bnch parents, or of his or her guardian, or of one having 
charge of such person, be presented to him ; and snch consent 
fthall be filed by the clerk, provided that the said clerk shall 
not issne a license authorizing the marriage of a white per>on 
with a negro, mulatto, or Mongolian. [In effect April 5, 
1880.] 

^ § 70. Marriage may be solemnised b^ either a justice of 
J Uie Supreme Court, judge of the ^superior Court, justice of 
? the pesMce, priest, or minister of the gospel of any denomiii*> 
J^ tion. rin effect April 5, 1880.] 
^ Penalty tor tfolemniiatloB of illegal marriage. Fena! Codei, f M. 

§ 71. No particular form for the ceremoiiy 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. 

§ 72. 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 it8 correctness, and for that pur- 
pose ho may administer oaths and examine the parties and 
witnesses in like manner as the county clerk does befoie i*- 
luing the license. (In effect July 1, 1874. J 

§ 73. The person solemnizing a marriage must make, sini 
and mdorse upon, or attach to, the license, a certificate, show' 
ing: 

1. The fait, time, and place of solemnization ; and 

2. The names and places of residence of one or more wit- 
ftosses to the ceremony. [In effect July 1, 1874.] 

TfwmJAy for falie return, fenal Code^ § 860. 

§ 74. He must, at the request af, and for either party, 
make a certified copy of the license and certificate, and fus 
the originals with the county recorder within thirty days after 
^ marriage. „gi,,3d by Google 

. . . . PoUt. Code, f <"-- 

a 



IS 76-80 MASBIAOB. 1^ 

§ 76. Persons married without the solemnization proTidea 
. for in section 70 must jointly niake a declaration of marriage^ 
^ V inbstantiallj showing : 
^ 1. The names, ages, and residences of the parties ; 

2/ The fact of marriage ; 

8. The time of marriage ; 

4. That the marriage has not heen solemnised. 

§ 76. If no record of the solemnization of a marriage her» 
tofore contracted he known to exist, the parties maj join In n 
written declaration of such marriage, snhstantiallj showing : 

1. The names, ages, and residences of the parties; 

2. The fiict of marriage ; 

3. That no record of such marriage is known to exist 
Such declaration mnst be subscribed by the parties and at- 
tested by at least three witnesses. [In efiect Jnly 1, 1874.J 

See Penal Code, §800. 

§ 77. Declarations of marriage mnst be acknowledged and 
recorded in like manner as grants of real property. 
See PoUt. Code, § 4236. 

§ 78. If either party to any marriage denies the same, or 
refuses to join in a declaration thereof, the other may proceed, 
by action in the Superior Court, to have the validity of the 
marriage determined and declared. [In effect February 15^ 
1883.] 

§ 79. When unmarried persons, not minors, have been liv- 
ing together as man and wife, they may, without a license, be 
married by any clergyman. A certificate 'of such marriage 
must, by the clergyman, be made and delivered to the parties 
and recorded upon the records of the church of which the elef- 
gjman is a representative. No other record need k« made. 
•In effect February 6^ 1878.] 

JUDICIAL DSTXRMINATION OV TOID MABBIAOSt. 

§ 80. Either party to an incestuous or void marriage may 

pioceed by action in the Superior Court, to have the r 

iedared. [In effect AprU 5, 1880.] 

ugitized by Google 



If MJLRRtAom. H 82 

CHAPTEB IL 
DIVOBOB. 



Aancu I. irDuiTr,.§) 82-86. - 
n. DissoLonoir, §§ 90-107. 
m Causes foe ^kvtiko Drf orob, fl 111-m. 
I, S§ 186-lfl 



IV GnuuL Paotuiohs, 



ARTICLE I. 

KULLITT. 

lMin«i> 82 OuM where maxriage maj be annulled. 

88. Action to obtain decree ox nullity in oertein 

by whom commenced. 
84. Children of annulled marrlagv 
86. Custody of children. 
86. JEfFect of judgment of nulli^. 

§ 82. A marriage maj be annulled for anj of the follawfng 
eauses, existing at the time of the marriage : 

1. That the party in whose behalf it is sought to hare the 
marriage annalled was under the age of le^ consent, and 
inch marriage was contracted withont the consent of his or 
her parents or ^ardian, or person having charge of him or 
her ; unless, after attaining the age oi consent, such party for 
anj time freely cohabited with the other as husband or wife ; 

2. That the former husband or wife of either party was liv- 
ing, and the marriage with such former husbana or wife nvnf 
then In force ; 

3. That either party was of unsound mind, unless web 
irty, after coming to reason, freely cohabit with the other ti 

iusl»nd or >nfe ; 

4. That the consent of either party was obtained by tnud, 
unless such party afterward, with full knowlege of the facts 
iwnstituting the fraud, freely cohabited with the otiier as hx» 
band or wife ; 

5. That the consent of either party was obtained by force, 
onleas such party afterwards freely cohabited with the other as 
husband or wife ; 

6. That either ^arty was, at the time of marriage, physically 
husapable of entering into die married state, and such incapao 
1^ oontinuofl, and appears to be incnrahlo. [In effect July 1 

874. I .digitized by Google 



hni 



§§ 83-86 MAsiuAOB. ai^ 

§ 83. An action to obtain a decree of nullity of marriage 
for causes mentioned in the preceding section/must be oom> 
menced within the periods and by the parties as follows : 

1. For caoses mentioned in subdivision one : by the party to 
the marriage who was married under the age of legid consent^ 
within four years after arriving at the age of consent ; or by 
a parent, guardian, or other person having charge of such 
non-aged male or female, at any time before such married 
minar has arrived at the age of le^al consent ; 

2. For causes mentioned in snbdivision two : by either party 
during the life of the other, or by such former husband or 
wife; 

3. For causes mentioned in subdivision three : by the 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, within four years after the discovery of the facts con- 
stituting 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. [In effect July 
1, 1874.] 

§ 84. Where a marriage is annulled on the ground that a 
former husband or wife was living, or on the ground of in- 
sanity, children begotten before the judgment are legitimate, 
and succeed to the estate of both parents. 

§ 85. The court must award the custody of the children of 
a marriage annulled on the ground of fraud or force to the 
innocent parent, and may also provide for their education and 
maintenance out of the property of the guilty party. 

§ 86. A judgment of nullity of marriage rendered is conclu 
five only as against the parties to the action and those clair 
iBg under them. 



ARTICLE n. 

DISSOLUTION OV MAJtBIAOB. 

Iionoir 90. Uarriage, how diasolved. 

91. DiTotce, what. ^ GoOQk 

82. Caua«s for divorce. ^ ^ o 



■1 MAKRiAoa. m 90*96 

SwffioN 98. Adultery defined. 

94. Extareme cruelty, what. 
96. Desertion, what. 

96. Desertion, how manifeeted. 

97. In case of stratagem or fraud, who eommitf desntloB. 

96. In case of cruelty, where one par^ leaTes the otiMr, wh: 

commits desertion. 
99. Reparation by consent not desertion. 

100. Separation and intent to desert not always eolneidMii. 

101. Consent to separate leTocable. 

102. Desertion, how cured. Effect of refusing condonattcm. 
108. Wife must abide by husband's selection of home, or it k 

desertton on her part. 
104. If the place is unfit, and wife refoses to conftom, it Is d* 

sertion by the husband. 
106. WUful neglect, what. 

106. Habitual intemperance, what. 

107. ^bitual intemperance for one year. 

f 90. Marriage is dissolved onlj : 

1. By the death of one of the parties; or, 

2. By the jadgment of a court of competent jarisdiction de 
ereeing a divorce of the parties. [In effect July 1, 1874.] 

§ 91. The effect of a judgment decreeing a divorce is to 
lestore the parties to the state of unmarried persons [Jb 
iffect July 1, 1874.] 

§ 92. Divorces may be granted for any of the following 

causes: 

1. Adultery; 

2. Extreme cruelty ; 

3. Wilful desertion ; 

4. Wilful neglect ; 

5. Habitual mtemperance ; 

6. Conviction of felony. [In effect July 1, 1874. J 
61 Cai. 544. 

§ 93. Adultery is the voluntary sexual intercourse of a mar- 
ried person with a person other than the offender's husband 
or wife. 

Open and notorious adultery is punished by Act of May 16, 1872. 

94 

cc § 94. Extreme cruelty is the infliction of grievous bodily in- 

124 662 tury or grievous mental sufiering upon the other by one party 

lo the marriage. 

f 95. Wilful dese^do-i is the voluntary separation of one ol 
the married parties from the other wiUi intent to desert. 
51Cal.544. . 

I 96. Persistent refusal to have\ reasonable matrimonial la 



|§ 97-104 MABSIikOB. » 

cercoune as husband and wife, when health or physical coudi 
kion does not make such refusal reasonably necessary, or th« 
refusal of either party to dwell in the same house with tbe 
other party, when there is no just cause for such refusal, is 
desertion. 

§ 97. When one party is induced, by the stratagem or f^and 
of the other party, to leave the family dwelling-place, or to be 
absent, and during such absence the offending party departs 
with intent to desert the other, it is desertion by the party 
committing the stratagem or fraud, and not by the other. 

§ 98. Departure or absence of one party from the familj 
dwelling-place, caused by cruelty or threats of bodily hann, 
from which danger would be reasonably apprehended from the 
other, is not desertion by the absent party, but it is desertion 
by the other party. 

§ 99. Separation by consent with or without the undefu 
standing that one of the parties will apply for a divorce, is 
not desertion. 

§ 100. Absence or separation, proper in itself, becomes 
desertion whenever the intent to desert is fixed during such 
absence or separation. [In effect July 1, 1874.] 

§ 101. Consent to a separation is a revocable act, and if 
one of the parties afterwards, in good faith, seeks a reconcilia- 
tion and restoration, but the other refuses it, such refusal ik 
desertion. 

§ 102. If one party deserts the other, and before the expf 
ration of the statutory period required to make the desertion 9 
cause of divorce, returns and offers in good faith to fulfil th* 
marriage contract, and solicits condonation, the desertion ia 
enred. 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. [In effect July 1, 1874.] 

§ 103. The hui^bard may choose any reasonable place or* 
mode of living, and if ihe wtfe does not conform thereto, it is 
lesertion. 

§ 104. If the place or^ mode of living selected by the bus 



/ 



■a MAESIAOB. §§ 106-111 

band is unreasonable and g^ssly unfit, and ihe wife does not 
Gonforni thereto, it is desertion on the part of the husband 
from the time her reasonable objections are made known to 



§ 106. Wilful neglect is the neglect of the husband lo pro- 
vide for his wife the common necessaries of life, he having the 
ability to do so ; or it is the failure to do so by reason of idle> 
nees, profligacy, or dissipation. 

51 Cal. 644. 

§ 106. Habitual intemperance is that degree of intempei 
ance from the use of intoxicating drinks which disqualifies the 
person a great portion of the time from properly attending lo 
business, or which would reasonably iniuct a course of great 
mental angnish upon the innocent party. 

§ 107* Wilful desertion, wilful neglect, or habitual inteni 
perance must continue for one year bafoie either is a ground 
for diTorce. 

ARTICLE III. 

CAUSES FOR DEmriNQ DIVORCK. 

kiorioir 111. Divorces denied, on showing what. 

112. Connivance, wliat. 

113. Gormpt consent, how manifested. 

114. Collusion, what. 
116. Condonation, what. 

116. Requisites to condonation. 

117. Condonation implies what. 

118. Svidence of oondonatlon. 

119. Condonation, when operates to bar diToree. 

120. Concealment of facts in certain eases makM eondcaatiUMi 

▼Old. 

121. Condonation, how revoked. 

122. Becrtmination, what. 

128. Condonation in a recriminatory defeuee a bar to saeh 4» 
fence, when. 

124. Divorces denied, when. 

125. Lapse of time establishes certain presumptions. 

126. Presomptions may be rebutted. 

127. Limitation of time. 

128. Divorces granted, when. 

130. Proof of actual residence required. Presumptions do ns* 

apply. 
180. StvoTDe not to be granted by default. See. 

I 111. Divorces must be denied upon showing* 

\. Connivance • oj rr^^n\o 



H 1 1 2-1 1 9 MASBI AOB M 

2. Collusion; or, 
8. CondoDAtion ; or, 

4. Recrimination; or, 

5. Limitation and lapse of time. 

§ 112. Connivance is the corrupt consent of one party to 
the conmiission of the acts of the other, constituting the causa 
^f divorce. 

§ 113. Corrupt consent is manifested by passive permw. 
mon, with intent to connive at or actively procure the com- 
oission of the acts complained of. 

§ 114. Collusion is an agreement between husband and 
irife that one of them shall commit, or appear to have com- 
mitted, or to be represented in court as having committed, 
acts constituting a cause of divorce, for the purpose of ena* 
Uing the other to obtain a divorce. 

§ 115. Condonation is the conditional forgiveness of a 
matrimonial offence constituting a cause of divorce. 

§ 116. The following requirements are necessary to con- 
donation : 

1. A knowledge on the part of the condoner of the facts 
constituting the cause of divorce ; 

2. Reconciliation and remission of the offence by tlie in- 
ured party; 

3. Restoration of the offending party to all marital rights. 

§ 117. Condonation implies a condition subsequent; that 
the forgiving party must be treated with conjugal kindness. 

§ 1 18. Where the cause of divorce consists of a course of 
offensive conduct, or arises, in cases of cruelty, from successive 
%ctB of ill-treatment which may, aggregately, constitute the 
iiffence, cohabitation, or passive endurance, or conjugal kind 
ness, shall not be evidence of condonation of any of the acts 
constituting such cause, unless accompanied by an express 
tgreement to condone. [In effect July I, 1874.] 

§ 119. In cases mentioned in the last section, condonatioi 
tan t)0 mado only after the cause of divorc^ has become com 
^te, w. to the acts complained of. [In effect July 1, 1874.] 



IS MABBiAea. SS 120-12e 

§ 120. A fraudalent oonoealiiieiit by the condooee of faetf 
lonstitnting a different cause of divorce from the one cod- 
ioned, and existing at the time of c<mdonation, avoidB tach 
eondonation. 



$121. Condonation ia revoked, and the original < 
iivorce reviyed : 

1. When the condonee commits acts constituting a like oi 
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 condonatioa 
had not been accepted in good faith, or not fulfilled. 

§ 122. Recrimination is a showing b^ the defendant oi 
any cause of divorce against the plaintiff, m bar of the plain 
tifTs cause of divorce. 

§ 123. Condonation of a canse of divorce, shown in the 
answer as a recriminatory defence, is a bar to such defence, 
nnless the condonation be revoked, as provided in section one 
hundred and twenty-one, or two years have elapsed after the 
condonation, and before the accruing or completion of the 
cause of divorce against which the recrimination is shown 
[In effect July 1, 1874.] 

§ 1 24. A divorce must be denied : ' * 

1. When the canse is adultery, and the action is not com 
menced within two years after the conmiission 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 
vimc before the commencement of the action. [In efiect July 
\. 1874.] 

$ 126. Unreasonable lapse of time is such a delay in com- 
1 encing the action as establishes the presumption that there 
has been connivance, collusion, or condonation of the offence, 
or full acquiescence in the same, with intent to continue the 
marriage relation, notwithstanding the commission of such 
iffence. 



1 126. The presumptions arising from lapse 



'lS^»Go?SSllmv 



§§ 127-136 MAMIAO*. » 

be rebutted bj showing reasonable gronnds for the delay !■ 

commen :ing the action. 

§ 127. There are no Umitations of time for ccmmenctng 
actions for divorce, except such as are contained in sectioi 
124. 

§ 128. A divorce must not be granted unless the plain*. ifi 
has been a resident of the State for six months next preceding 
the commencement of the action. 

§ 129. In actions for divorce the presumption of law, that 
the domicile of the husband is the domicile of the wife, does 
not applj. After separation, each may have a separate domi- 
cile, depending for proof upon actual residence, and not apon 

legal presumptions. 

§ 180. No divorce can be granted upon the default of the 
deiendant, or upon the uncorroborated statement, admission, 
or testimony of the parties, or upon any statement or finding 
of fact made by a referee ; but the court must, in addition to 
any statement or finding of the referee, require proof of the 
facts alleged, and such proof, if not taken before the conrt, 
must be upon written questions and answers. [In effect July 



M»ft<AtZt^V^ «$«-o(^ . 



GENEKAL PBOVISIOKS. 

taimoH 186. Belief may be adjudged, where separation is denied. 

187. Expense of action, alimony. 

188. Orders respecting custody of children. 

189. Support of wife and children on divorce or iepanti«a 

granted to wife. 

140. Security for maintenance and alimony. 

141. Court flhall resort to what, in executing certain sections. 

142. If wife hM sufficient support, court may withhold allowancse. 
148. Community and separate property may be subjected to mp^ 

port and educate children. 
144. Legitimacy of issue. 

146. Same. 

148. Disposition of community property on divorce. 

147. How disposed of when divorce rendered on adultery. 

148. SH3h an action subject to revision on appeal. 

§ 186. ThDugh judgment of divorce is denied, the court 

\ka.y, in an action lor divorce, provide for the maintenanof 

f the wife and her children, or any of them, by the hut 



\ tl MABBIAOB. §§ 137-142 

i37 

^sas § 137. Whfle an action for diyorce is pending the eonrt 

may, in its discretion, require the husband to pay .as alimony 

. any money necessary to enable the wife to support herself or 

her children, or to prosecute or defend the action. When the 

husband wilfully deserts the wife, she may, without applying 

for a divorce, maintain in the Superior Court an aclion against 

him for permanent support and maintenance of herself or of 

t-^J/C herself and children. During the pendency of such action the 

i'Jo f court may, in its discretion, require the husband to pay as ali- 

M^ C mony any money necessary for the prosecution of the action 

L j^ and for support and maintenance, and executions may issne 

\^^/^ therefor in the discretion of the court. The final judgment in 

'^ Vjnch action may be enforced by the court by such order or 

I* ^iforders as in its discretion it may from time to time deem nec- 

F''^ essary, and such order or orders may be varied, altered, or 

fS''^ revoked at the discretion of the court. [In effect April 5, 

' 55 Cal. 826. 

§ 138. In an action for divorce the court may, before oi 
after judgment, give such direction for the custody, care, and 
education of the children of the marriage as may seem nec- 
essary or proper, and may at any time vacate or modify the 
Mtme. 

f 139. Where a divorce is granted for an offence of the 
husband, the court may compel him to provide for the main- 
tenance of the children of the marriage, and to make such 
suitable allowance to the wife for her support, during her life, 
or for a shorter period, as the court may deem just, having 
regard to the circumstances of the parties respectively ; and 
the court may, from time to time, modify its orders in these 



62 Cal. 384. 

*^ § 140. The court may require the husband to give reason- 

124'"«5 ible security for providing maintenance or making any pay- 

1^ 588 ments required under the provisions of this chapter, and may 

enforce the same by the appointment of a receiver, or by any 

other remedy applicable to the case. 

§ 141. In executing the five preceding sections the court 
'Hiist resort : 
i. To the community property then, 
%. To the separate property of the husband. 

gitizedbyGoOQle 

§ 142. When the wife has either a separate estate, < 
Here is community property sufficient to give her alimor. 



|§ 148-147 MARBIAGB. S8 

or a proper support, the conrt, in its discretion, may withhold 
Any allowance to her out of the separate property of the hii» 



§ 148. 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. 

§ 144* When a divorce is granted for the adultery of tlM 
tiusband, the legitimacy of children of the marriage begotten 
of the wife before the commencement of the action is not 
affected. 

§ 146. 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 affected ; but the legitimacy 

of other children of the ^e may be determined by the court, 

N upon the evidence in the case. 

146 \ 

\^ . § 146. In case of the dissolution of the marriage by the 

124 588 decree of a court of competent jurisdiction, the community 

8iib. 8 property and the homestead shall be assigned as follows : 

vu 653 J j£ ^^^ 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 

»11 the facts of the case, and the condition of the parties may 

deem Just. 

2. n the decree be rendered on any other ground than that 
of adultery or extreme cruelty, the community property aha]] 
be equally divided between the parties. 

3. If a homestead has been selected from the community 
property, it may be assigned to the innocent party, either 
absolutely, or for a limited period, subject, in the latter caae^ 
to the future disposition of tne court, or it may, in the discre- 
tion of the court, be divided, or be sold and the proceed! 
divided. 

4. If a homestead has been selected from the separate prop- ' 
•rty of either, it shall be assigned to the former owner of such 
property, subiect to the power of the court to assign it for a 

I umited period to the innocent party. [In effect July 1, 1874.] 

47 Oal. 146. 

§ 147. The court, in rendering a decree of divorce, must 
nake such order for the disposition of the community prop 
•rty, and of the homestead, as in this chapter provided, and 
whenever necessary for that purpose, may order a partition o- 



^ MA&BIAOS. §§ 148-167 

Bale of the property and a division or other disposition of ths 
proceeds. [In eflRect July 1, 1874.] 
47 Cal. 147. 

§ 148. The disposition of the community property, and 
of the homesteadj. as above provided, is subiect to revision on 
appeal in all particulars, including those which are stated U> 
he in the discretion of the court. [In effect July 1, 1874.1 

CHAPTER in. 
HUSBAND AND WIFB 

ItoxiOH 156 Mutual obligations of husband and wife. 

156. Rights of husband, as head of family. 

157. In other respects their interests separate. 

158. Husband and wife may make contracts. 

159. How far may impair th«ir legal obligations. 

160. Consideration for agreement of separation. 

161. May be joint tenants, &c. 

162. Separate property of the wife. 

163. Separate property of the husband. 

164. Community property. 

165. Inventory of separate property of wife. 

166. Piling inventory notice of wife's title. 

167. Wife not competent to contract for payment of monej. 

168. Earnings of wife not liable for debts of husband. 

160. Earnings of wife, when living separate, separate yioi w rtj . 

170. Liability for debts of wife contracted before marrUme. 

171. Wife's property not liable for debts of the husband, but Urn 

ble for her own debts. 
i72. Power of the husband over community property. 
178. Courtesy and dower not idlowed. 

174. Support of wife. 

175. Husband not liable when abandoned by wife. 

176. When wife must support husband. 

177. Rights of husband and wife governed by what. 

178. Marriage settlement contracts, how executed. 

179. To be acknowledged and recorded. 

180. Effect of recording. 

181. Minors may make marriage settlementf . 

f 165. Husband and vnfe contract towards each other obli 
gations of mutual respect, fidelity, and support. 

$ 156; The husband is the head of the family. He ma? 
thi ose any reasonable place or mode of living, and the win 
nust conform thereto. 

5 157. Neither husband nor wife has any interest in the 
property of the other, but neither can be excluded from the 
iUtdr'B dwelling. 



$f 158-164 HJkKBIAOB. 80 

§ 168. Either husband or wife may euter into any engage* 
tnent or transaction with the other, or with any other person, 
respecting property, which either might if unmarried ; subject, 
in transactions between themselves, to the general rules wnich 
control the actions of persona occupying confidential relations 
with each other, as defined by the Title on Trusts. 

52 Cal. 335 ; 53 Cal. 459 ; 54 Cal. 178 ; 56 Cal. 15, 62, 68. 

§ 169. A husband and wife cannot, by any contract yntk 
each other, alter their legal relations, except as to proper^, 
and except that they may agree, in writing, to an immedi0te 
separation, and may ma*ke provision for the support of either 
of them and of their cliildren during such separation. [In 
effect July 1, 1874.] 

§ 160. The mutual consent of the parties is a sufficien^t con- 
sideration for such an agreement as is mentioned in the last 
section. 

§ 161. A husband and wife may hold property as joint ten 
ants, tenants in common, or as community property. . 

53 Cal. 469. 

§ 162. All property of the wife, owned by her before mar- 
riage, and that acquired afterwards by gift, bequest, devise, or 
descent, with the rents, issues, and profits thereof, is herWjpa- 
rate property. The wife may, without the consent of her bus* 
baud, convey her separate property. 

53 CaL 459; 55 Cal. 66. 

§ 168. All property owned by the husband before marjrilge, 
and that acquired afterwards by gift, bequest, devise, or de- 
scent, with the lents, issues, and profits thereof, is his separate 
property. 
'" , 67 Cal. 267, 320. 

^ § 164. All other property acquired after marriage by 

218 either husband or wife, or both, is community property ; but. 

whenever any property is conveyed to a marned woman by 

an instrument in writing, the presumption is that the title is 

thereby vested in her as her separate property. And in Citsc 

the conveyance be to such married woman and her husbapd, 

•** or to her and any other person, the presumption is that the 

\^ married woman takes the part conveyed to her as tenant in 

1 common, unless a different intention is expressed in the in- 

r\ strument, and the presumption in this section mentioned i^^ 

'^v conclusive in favor of a purchaser or incumbrancer in good 

faith and for a valuable consideration. [Approved Marcii 

a9, 1889.] 



1' 



31 MAKftlAOB. H 166-174 

^ f 166. A fall and complete inTentory of the separate per- 
^ 202 stmal property of the wife ma^ be made oat and signed bj 
her, acknowledged or prored m the manner required bj law 
for the acknowledgment or proof of a ^ant of real property 
by an unmarried woman, and recorded m the office of toe f» 
torder of the count j in which the parties reside. 

168 §166. The filing of the inrentory in the recorder's office li 
iQ.'L» notice and prima facie eyklence of the title of the wife, li 

■Sifect July 1.1874.1 

§ 167. The property of the community is not liable for the 
contracts of the wife, made after marriage, unless secured b/ 
a pledge or mortgage thereof executed by the husband. {& 
eflW July 1,1874.1 

64 Cal. 178. 

§ 168. The earnings of the wife are not liable for the debli 
of the hnsband. 

68 Gal. 469. 

§ 169. The earnings and accamnlations of the wife, and ci 
her minor children Hying with her or in her custody, while she 
is living separate from her husband, are the separate property 
of the wife. 

63 Cal. 469. 

§ 1 70. The separate property of the hnsband is not liable 
for the debts of the wife contracted before the marriage. 

§ 171., The separate property of the wife is not liable for 
the debts of her husband, but is liable for her own debts, con 
I tracted before or after marriage. 






K 



^ f 172. The husband has the management and control of 

A* the community property, with the like absolute power of di»- 

I position (other than testamentary) as he has of his separate 

\ estate. 

"" 58 Cal. 116. 

§ 173. No estate is allowed the husband as tenant cy cour- 
tesy upon the death of his wife, nor is any estate in dower 
allotted to the wife upon the death of her hnsband. 

§ 1 74. 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. [In effect Julr l, 
1874.1 



16 176-181 PABBKT AND CHILD. 8t 

§ 176. A husband abandoned by his wife is not liable for 
!3r support until she ofiers to return, unless she was justified, 
jy his misconduct, in abandoning him ; nor is he liable for her 
•upport when she is living separate from him, by agreement, 
unless such support is stipulated in the agreement. [In effact 
,uly 1, 1874.] 

54 Cal. 897. 

{176. The wife must support tne husband, when he bai 
Qot deserted her, out of her separate property, when he has no 
separate property, and there is no community property, and 
he is unable, from infirmity, to support himself. [In efibct 
July 1, 1874.] 

§ 177. The property rights of husband and wifb are gov 
emed b^ this chapter, unless there is a marriage settlement 
contaimng stipulations contrary thereto. 

§ 178. All contracts for marriage settlements muit re in 
Wnting, and executed and acknowledged or proved in like 
manner as a grant of land is required to be executed and 
acknowledged or proved. 

§ 179. When such contract is acknowledged or proved, it 
must be recorded in the office of the recorder of every county 
in which any real estate may be situated which Is granted or 
affected by such contract. 

§ 180. The recording or non-recordiug of such contract has 
a like effect as the recording or non-recording of a grant oi 
teal property. 

§181. A minor capable of contracting marriage may make 
a Valid marriage settlement. 

TITLE II. 

PARENT AND CHILD. 

CHAPTER I. 

CHILDREN BY BIRTH. 

3inTT0N 196. Legitimacy of children bom in wedlock. 

194. Legitimacy of children bom oat of wedlc«k 

196. Who may dispute the legitimacy of a «hild 

196. Oblis&tion of parents for the support ani eAueatUHt of Uv* 

children. 
107. Oustody of lecitimate ohild 



13 PABUTT ARB OHILB. JJ 19&*197 

9mnkMi jSS. Husband and wife Uring separate, neither to hare superior 
right to custody of ohlidren. 

199. When husband or wife may bring action for the exclvslft 

control of children. Decree in such casea 

200. Custody of an Ulegitimate child. 

201. Allowance to parent. 

202. Parent cannot control the property of child 
208 Remedy for parental abuse. 

204. When parental authority ceases. 

206. Remedy when a parent dies without proTiding for the rap* 
port of his child. 

206. Reciprocal duties of p«rentfl and children in maintaining 

each other. 

207. When a parent is liable for necessaries supplied to a child 

208. When a parent Ib not liable for support furnished his child. 

209. Husband not bound for the support of his wife's cUldren 

by a former marriage. 

210. Compensation and support of adult child. 

211 Parent may relinquish services and custody of child 

212. Wages of minors. 

218. Right of parent to determine the residence of child. 

214. Wife in certain cases may obtain custody of minor ehlV 

dren. 

215. Child legitimized by marriage of parents 

§ 193. AH children bom in wedlock are presumed to be 
l^e^timate. 

§ 194. All children of a woman who has been married, 
bom within ten months after the dissolution of the marriage, 
are presumed to be legitimate children of that marriage. [In 
effect July 1, 1874.] 

§ 195. 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 auy 
other fact. 

§ 196. The parent entitled to the custody of a child must 

fire him support and education suitable to his circumstances, 
f the support and education which the father of a legitimate 
child is able to give are inadequate, the mother must assist 
Vim to the extent of her ability 

§ 197. The father of a legitimate unmarried minor child 
ti entitled to its custody, services, and earnings ; but he can- 
not transfer such custody or services to any other person, ex- 
tept the mother, without her written coi^sent, unless she has 
iieserted him, or is living separa.te Crom him by agreement 



H 198-204 PARBKT AND CHILD. 84 

If the father l)e dead, or be an able, or refuse to take the en** 
tody, or has abandoned his family, the mother is entitled 
thereto. [In effect July 1, 1874.] 

§ 198. The husband and father, as such, has no righM 
■uperior to those of the wife and mother, in regard to the care, 
custody, education, and control of the children of the mar- 
riage, while such husband and wife live separate and apart 

from each other. 

§ 199. Without application for a divorce, the husband ui 
the wife may bring an action for the exclusive control of the 
children of the marriage ; and the court may, during the 
pendency of such action, or at the final hearing thereof, or af- 
terwards, make such order or decree in regard to the support, 
care, custody, education, and control of the children of the 
xnarriage, as may be just, and in accordance with the natural 
rights of the parents and the best interests of the children, and 
may at any time thereafter amend, vary, or modify such order 
or decree, as the natural rights and the interests of the par- 
ties, including the children, may require. 

{ 200. The mother of an illegitimate unmarried minor it 
entitled to its custody, services, and earnings. 

$201. The proper court may direct an allowance to be 
made to the parent of a child, out of its property, for its past 
or future support and education, on such conditions as may 
be proper, whenever such direction is for its benefit. 

§ 202. The parent, as such, has no control over the prop- 
4jrty of the child. 

§ 208. 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 supervise iv 
of the county where the child resides ; and when the abuse is 
established, the child may be freed from the dominion of th« 
parent, and the duty of support and education enforced. 

Omission to supply a child with necessaries is a misdemeanor, and de 
tsition is punished by imprisonment. Penal Code, $$ 270, 271. 

§ 204. The authority of a parent ceases: 
1. Upon the appointnient, by a court, of a guardian of thi 
'«non of a child ; 



35 PAXSHT AXD CHILD. |§ 206-211 

2. Upon the marriAge of the child ; or 

3. Upon its attaining majoritj. 

§ 206. If a parent chargeable with the support of a child 
dies, leaving it chargeable to the county, and leaving an estate 
•nfficient for its support, the supervisors of the count j may 
eJum provision for its support from the parent's estate by 
civil action, and for this purpose may have the same remediet 
IS any creditors against that estate, and against the heirs^ 
devisees, and next of kin of the parent. 

I 206. It is the duty of the father, the mother, and the 
ehUdren of any poor person who is unable to maintain himself 
by work, to mamtain such person to the extent of their abil- 
ity. The promise of an adult child to pay for necessaries pre- 
Tiously furnished to such parent is binding. 

§ 207. If a parent neglects to provide articles necessarj; 
for his child who is under his charge, according to his cir- 
cumstances^ a third person may in good faith supply such nec- 
essaries, and recover the reasonable value thereof from th* 
parent. 

§ 208. A parent is not bound to compensate the other par- 
ent, or a relative, for the voluntary support of his child, with- 
out an agreement for compensation, nor to compensate a 
stranger for the support of a child who has abandoned the 
parent without just cause. 

§ 209. A husband is not bound to maintain his wife's chil- 
dren 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, thej^ are not liable to him 
for their suppoit, nor he to them for their services. 

§ 210. Where a child, after attaining majority, continues 
to serve and to be supported by the parent, neither party is 
entitled to compensation, in the absence of an agreement 
therefor. 

§ 211. The parent, whether solvent or insolvent, may re- 
Unquish to the child the right of controlling him and receiv- 
bg his earnings. Abandonment by the parent is presumptive 
'^dence of such relinqnisbment. 

Digitized by VjOOQIC 



(f 212-221 PABBNT AND CHILD. 9t 

I 212. The wages of a minor employed in service majr be 
paid to him until the parent or enardian entitled thereto gives 
the employer notice that he claims snch wages. [In effect 
July 1, 1874.] 

§ 218. A parent entitled to the cnstody 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 
•ights or welfare of the child. 

§ 214. When a husband and wife live in a state of sejia- 
ration, without being divorced, any court of competent juris- 
diction, upon application of either, if an inhabitant of this 
State, may inquire into the custody of any unmarried minoi 
child of the marria^, and may award the custody of such child 
to either, for such time and under such regulations as the case 
may require. The decision of the court must be guided by 
the rules prescribed in section 246. 

See Act of March 7, 1874, RelatiTe to Orphans and Abandoned Children 
Appendix, pp. 

§ 216. A child bom before wedlock becomes legitimate bjr 
the subsequent marriage of its parents. [In effect July 1, 
1874.] 

Child stealing ia punished by § 278 of the Penal Code, and abortion, oz 
lubmittinff to attempted abortion, by impilBonment of from one to nvt 
rears, §§ &4, 275. 



CHAPTER n. 
ADOPTION. 

221. Child may be adopt«jd. 

222. Who may adopt. 

228. Consent of wife necessary. 

224. Consent of child's parents. 

225. Consent of child. 

226. Proceedings on adoption. 

227. Judge's order. 

228. EfiFect of adoption. 

229. Effect on former relations of child. 
280. Adoption of Ulegitimate child. 

f 821. A.ny minor child may be adopted by any juliilt pei 
•on, in the cases and subject to the rules prescribed in thii 
diapter. 



17 FABXNX AHD CHILD. §§ 22^227 

§ 222. The peraon adopting a child most be at least ten 
years older than the person adopted. [In effect Jolj 1, 1874.] 

§ 223. A married man, not lawfully separated from his 
wife, cannot adopt a child without the consent of his wife ; 
nor can a married woman, not thns separated from her hus- 
band, without his consent, provided the husband or wife, not 
eonsentiug, is capable of giving such consent. [In effect Jnly 
1, 1874.] 

§ 224. A legitimacte child cannot be adopted without the 
consent of its parents, if living, nor an illegitimate child with- 
^ out the consent of its mother, if living, except that consent is 
8^N»v.ttot necessary from a father or mother deprived of civil rights, 
fV**( or adjudged guilty of adultery, or of cruelty, and for either 
^ / canse divorced, or adjudged to be a habitual drunkard, or who 
•v J has been judicially deprived of the custody of the child on 
^\C^acconnt of cruelty or neglect. 

§ 225. The consent of a child, if over the age of twelve 
jears, is necessary to its adoption. 

§ 226. The person adopting a child, and the child adopted, 
and the other persons, if within or residents of this State, 
whose consent is necessary, must appear before the judge of 
the Superior Court of the county where the person adopting 
resides, and the necessary consent must thereupon be signed 
and an agreement be executed by the person adopting, to the 
effect that the child shall be adopted and treated in all re- 
spects as his own lawful child should be treated. If the per- 
sons whose consent is necessary are not within or are not res- 
idents of this State, then their written consent, duly proved 
or acknowledged, according to sections eleven hundred and 
nighty-two and eleven hundred and eighty-three of this Code, 
shall be filed in said Superior Court at the time of the appli- 
cation fnr adoption. [In effect April 5, 1880.] 

(227. The judge must examine all persons appearing 
before him pursuant to the last section, each separately, ana 
t satistied that the interests of the child will be promoted by 
the adoption, he must make an order declaring that the child 
ihall thenceforth be regarded and treated in all respects as 
\iM child of the person adopting 

\ Digitized by VjOOQIC 



§§ 228-230 GUAKDIAN AND -ffARD. 88 

i 228. A child, when adopted, may take the family uauie 
of the person adopting. After adoption, the two shall sastaio 
towards each other the legal relation of parent and chil 1, and 
have all the rig] its and he subject to ail the duties of thkt rela 
tion. [In effect July 1, 1874. J 

§ 229. The parents of an adopted child are, from thf 
time of the adoption, relieved of all parental duties towards, 
and all responsibility for, the child so adopted, and have no 
right over it. 

§ 230. The father of an illegitimate child, by pablidy 
acknowledging it bb his own, receiving it as such, with the 
consent of his wife, if he is married, into his family, aad oth- 
erwise treating it as if it were a legitimate child, thereby 
adopts it as such ; and such child is thereupon deemed foi 
all purposes legitimate from the time of its biith. The fore 
going provisions of this chapter do not apply to tach ai 
adoption. 

52 Cal. 86. 



TITLE III. 

GUARDIAN AND WARD. 

fa}fiOH 286. Onftrdian, what. 

237. Ward, what. 

238. Khids of guardians. 
289. (General guardian, wha.t. 

240. Special guardian, what. 

241. Appointment by parent. 

242. No person guardian of estate wiihout appolntBMt 

248. Appointment by court. 

244. Same. 

245. Jurisdiction. 

9i6ft "BgdfiB for a\v;^rding custody of minor. 
^I* Pf^'? ^' mgt^'^ appointed by oonrt. 
948. miiieBoi ^tjmt^n of the person. 

249. Duties of gi^ian of estate. 
^260. Relation confidlntial. 

261. Guardian undet direction of eoorb 

252. Ileath of a jMfit guardian. 

958. Removal ofgsuardian. 

954. Guardiaif aPpojAtedby parent, how snperMdaA JgLc 



39 OUASDIAX AKD WABD. §§ 236^244 

Bioiioir266. Guardian appointed by court, how toptntdtA 
2&6. Released by ward. 

257. Guardian's discharge. 

258. Insuie persons. 

§ 236. A gnardian is a person appointed to take can ol 

die person or property of another. 

§ 237. The person oyer whom or over whose property • 
piardian is appointed, is called his ward. 

§ 238. Guardians are either: 

1. General; or, 

2. Special. 

§ 239. A general gaardian is a guardian of the penon 
»r of all the property of the ward within this State, or oi 
both. 

§ 240. Every other is a special goardian. 

§ 241. A gaardian of the person or estate, or of both, of 
a child born, or likely to be bom, may be appointed by wil. 
or by deed, to take effect npon the death of the parent ap- 
pointing : 

1 . If the child be legitimate, b^ the father, with the writtet 
.. onsent 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. [In effect 
July 1, 1874.] 

J* § 242. No person, whether a parent or otherwise, has any 
"- power as guardian of property, except by appointment as 
I hereinafter provided. 

'^ § 243. A guardia'ta of the person or property, or both, ol 

. a person residing in this State, who is a minor, or of unsound 

T vimd, may be ap[)ointed in all cases, other than those named 

'- in section two hundred and forty-one, mr the Superior Court, 

- u provided in the Code of Civil ProfMire. ■ [S^ff^ct April 

. », 1880.] Wy^ 

§ 244. A guardian of the properftwrithin this State of a 
Derson not residing therein,«rfu> is Wninor, or of unsound 
mind, raav be appointed by tne Si^i*|pr CoMt. [In effect 
M)ril 5, 1:880.] W Google 



§§ 245-240 GUARDIAN AND WABD. 40 

f 246. In all cases the court making the appointmimt oi 
i guardian has exclusive jurisdiction to control hinL 

§ 246. In awarding the custody of a minor, or iu appoint 
ing a general guardian, the court or office]; is to be guided by 
the foSowing considerations : 

1. By what appears to be for the best intercv^it of the child 
in respect to its temporal and its mental and moral welfare , 
and if the child be of a sufficient age to form an intelligent 
preference, the court may consider that preference in deter- 
mining the question. 

2. As between parents adversely claiming the custody oi 
guardianship, neither parent is entitled to it as of right ; but 
other things being equal, if the child be of tender years, it 
■bould be given to the mother ; if it be of an age to require 
education and preparation for labor or business, then to the 
father. 

3. Of two persons equally entitled to the custody in othet 
respects, preference is to be given as follows : 

1. To a parent; 

2. To one who was indicated by the wishes of a deceased 
parent ; 

3. To one who already stands in the position of a trastoe 
of a fund to be applied to the child's support ; 

4. To a relative. [In effect July 1, 1874.] 

See §214. 

§ 247. A guardian appointed by a court has power ovei 
the person and property of the ward, unless otherwise or* 
dered. 

§ 248. A guardian of the person is charged with the cu9- 

' ' body of the ward, and must look to his support, health, and 

'V Bducation. He may fix the residence of the ward at any place 

> within the State, but not elsewhere, without permission of the 

"* court. 

249 -i 

cc } 249. .^guardian of the property must keep safely the 

property ot^M ward. He must not permit any unnecessary 

waste or deRruction of the real property, nor make any sale 

of such property without the order of the Superior Court, but 

• • must, so far as it is iu his power, maintain the same, with its 

' buildings and appurtenances, out of the income or other prop 

^ of the estate, and deliver it to the ward, at the close o 



ftl GUABDIAK AND WA£P. §§ 260-266 

his guardianship, in as good condition as he received it. fin 
effect April 5, 1880.] 

§ 250. The relation of guardian and ward is confidentlftl, 

Rnd is suhject to the proyisions of the Title on Trust. 

§ 251. In the management and dispoation of the pcrfon 
OfT property committed to him, a guardian may be regulated 
and controlled bj the court. 

§ 262. On the death of one of two or more joint gu*r* 
dians, the power continues to the surviYor until a further ap 
pointment is made by the court. 

§ 263. A guardian may be removed by the Superior Court 
for any of the following causes : 

1. For abuse of his trust ; 

2. For continued failure to perform its duties ; 

3. For incapacity to perform its duties ; 

4. For gross immorality ; 

5. For haying an interest adverse to the faithful perform- 
■nee of his duties ; 

6. For removal from the State ; 

7. In the case of a guardian of the property, for insolrency ; 
or, 

8. When it is no longer proper that the ward should be 
under guardianship. [In effect April 5, 1880.] 

§ 264. The power of a guardian appointed by a parent is 
superseded : 

1. By his removal, as provided by section 253 ; 

2. By the solenmized marriage of the ward ; or, 

3. By the ward's attaining majority. 

§ 266* The power of a guardian appointed by a court it 
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 tfie ward, by the 
marriage of the ward. [In effect July 1, 1874.] 

§ 256. After a ward has come to his majority, he may 
lettle accounts with his guardian, and give him a release, 
vhich is valid if obtained fairly and without undue influence 



§§ 257-264 MA8TBB AND SBBVANT. ' ** 

§ 257. A guardian appointed by a court is not entitled *o 

ois discharge until one year after the ward's majority. 

{ 268. A person of unsound mind may be placed in aa 
Mylum for such persons, upon the order of t}^% Superior Conrt 
of thi county in which he resides, as follows : 

1. The court must be satisfied, upon examination in open 
court and in the preeence of such person, from the testimony 
of two reputable physicians, that such person is of unsound 
mind, and unfit to be at large ; 

2. After the order is granted, the person alleged to be of 
unsound mind, his or her husband or wife, or relative to the 
third degree, or any citizen, may demand an investigation be- 
fore a jury, which must be conducted in all respects as under 
an inquisition of lunacy. 

Am to appointment, rights, and powers of guardian see Code dv 

Pioe. $f ifS-im. 



TITLE IV. 
MASTER AND SERVANT. 

Saonov 284. Minors may apprentice themselves. 

265. Consent of parents, &c., requisite. 

266. Written consent. 

267. Executors may bind. 

268. Supervisors may bind out. 

269. Town officers. 

270. Age of apprentice to be inserted in Indenturai 

271. Indentures, conditions in. 

272. Same. 

278. Deposit of indentures. 

274. Alien minors. 

276. Contract under preceding section to be acknowledged. 

276. Causes for annulling indentures. 

§ 261. Every minor, with the consent of the persons or o# 

Acers hereinafter mentioned, may, of his own free will, bind 

himself, in writing, to sei-ve as clerk, apprentice, or serrant, 

I in any professio||, trade, or eniplo)rment, during his minority 

I and such binding shall be as valid and effectual as if sucl 

minor was of full age at the time of making the engagement 

Aiding apprentice to run away a misdemeanor. Penal Code, } 6M 
See Act of April 8 1876, Relatire to Apprentices, Appendix, pp. 

uigitized by Google 



i3 MA8TSB AND SKMYAITT. §§ 266-2 Ai 

§ 265. Such consent shall he ^ven : 

1. Bj the father of the minor. If he he dead, or be net of 
legal capacity to give his consent, or if he shall have aban- 
doned or neglected to provide for his farailj*, and sach fact be 
certified by a jnstice of the peace of the township or connty, 
or sworn to by a credible witness, and such certincate or affi- 
davit be indorsed on the indenture, then : 

2. By the mother. If the mother be dead, or be not of legal 
capacity to give such consent or refusal, then : 

3. By the guardian of such infant. If snch infant have no 
parent living, or none in a legal capacity to give consent^ and 
there be no guardian, then : 

4. By the supervisors of the county, or any two justices of 
the peace, or the judge of the Superior Court of the county ; 

5. If such minor be an orphan, under the care and control 
of any orphan asylum in this State, then by the board of 
managers thereof. [In effect April 5, 1880.] 

§ 266. Such consent shall be signified in writing by the per- 
son entitled to give the same, by certificate at the end of; or 
indorsed upon the indentures. 

§ 267. The executors of any last will of a parent who shall 
be directed in such will to bring up his or her child to some 
trade or calling, may bind such child to service as a clerk, or 
apprentice, in like manner as the father might have done if 
living. If there is a surviving mother, her consent also is 
necessary. 

§ 268. The supervisors of the county may bind out minors 
who are or shall become chargeable to such county, to be 
clerks, apprentices, or servants, which binding shall be as effect- 
nal as if such minors had boond themselves with the consent 
of their father. 

§ 269. In every town or city the presiding officer of the 
Irst council or legislative board thereof, if there be more than 
one, or any public officer or officers appointed to provide for 
ihe poor, may in like manner bind out any child who, oi 
vhose parents are, chargeable to any such town or city. 

§ 270. The age of every infant so bound shall be inserted in 
^e indentures, and shall be taken to be the true age; and 
Vhenever public officers are authorized to execute any in den 
ares, or their consent is required to the validity of the same. 



f§ 271-276 MASTBR AND SSRYANT. 44 

it shall be their daty to inform themselves fully of the infant's 
age. 

§ 271. Every sum of money paid or agreed for, with or in 
relation to the binding out of any cleyk, apprentice, or servant 
shall be inserted in the indentures. 

§ 272. The indenture shall also contain an agreement, on 
the part of the person to whom such child shall be bound, that 
he will cause such child to be instructed to read and write, 
and to be taught the general rules of arithmetic, or, in lien 
thereof, that he will send such child to school three months ol 
each year of the period of indenture, 

§ 278, The counterpart of any indenture executed by any 
county, or city, or town officers, must be by them deposited ill 
the office of the county clerk. [In effect April 5, 1880.] 

§ 274. Any minor, capable of becoming a citizen of this 
State, conaingfrom any other country, State, or Territory, may 
bind himself to service until his majority, or for any shorter 
term. Such contract, if made for the purpose of raising 
money to pay his passage, or for the payment of such passage, 
may be for the tenn of one year, although such term may ex- 
tend beyond the time when such person will be of full age, but 
it shall in no case be for a longer term. 

§ 275. No contract made under the preceding section shall 
bind the servant, unless duly acknowledged by the minor, be- 
fore some public magistrate or other officer authorized to 
administer oaths, nor unless a certificate, showing that the 
same was made freely, on private examination, be indorsed 
upon the contract. 

§ 276. Such indentures of apprenticeship may be annulled 
for: 

1 . Fraud in the contract of indenture ; 

2. When such contract is not made or executed in accord 
ance with the provisions of this title ; 

3. For wilful non-fulfilment, by such master, of the provi 
sions of such indenture ; 

4. Cruelty or maltreatment of such apprentice by tlie mas 
ler. In such case, the apprentice may recover for hia ser 
rioes. 

Digitized by VjOOQIC 



PAET IV. 



CORPORATIONS. 

riTi«B I. Gekebal Proyisions as to all Cobporatiovi. 

§§ 283-403. 
n. Insubance Cobpobatioks, §§ 414*448. 
.m. Railboad Cobpobations, §§ 454-491. 
IV. Stbeet Railboad Cobpobatiokb, §§ 497-511. 
V. Wagon Hoad Cobpobationh, §§ 512-523. 
VI. Bridge, Febrt, Wharf, Chute, and Pieb Co». 
PORATION8, §§ 528-531. 
Vn. Telegbaph Corporations, §§ 536-541. 
VOL Water and Canal Corporations, §§ 548-1^51. 
IX. Homestead Corporations, §§ 557-566. 
X. Savings and Loan Cobpobations, §§ 571-579. 
XI. Mining Cobpobations, §§ 584-587. 
XU Religious, Social, and Benevolent Corpora- 
tions, §§ 593-601. 
Xm. Cemetert Corporations, §§ 608-614. 
XIV. Agricultural Fair Corporations, §§ 620-622. 
XV. Gas Corporations, §§ 628-632. 
XVL Land and Building Corporations, §§ 639-64& 



TITLE L 

GENERAL PROVISIONS APPLICABLE 
TO ALL CORPORATIONS. 

I. Formation of Corporations, §§ 283-390. 
H. Corporate Stock, §§ 322-349. 
III. Corporate Powers, §§ 354-393. 
lY. Extension and Dissolution or CJobporatiom* 
§§ 399-403. _ - 

uigitizedbyLjOOgle 



fS 283-286 FORMATION OF CORPORATION ». 46 

CHAPTER L 
FORMATION OF CORPORATIONS. 

kmnciM L OoBPOBAnoNB DirnrxD and how omaniisd, }§ 288-900. 
n. Bt-laws, Diuotobs, Euonon, Aim Mnznras, §$ 801-400 

ARTICLE I. 

CORPORATIONS DEFINED AND HOW ORGANIRBll. 

immw 288. Corporation defined. 

284. What are public and prirate corporation! . 
286. Corporations, how formed. 

286. For what purpose private corporations are formed. 

287. How corporations may continue their existence under HUt 

Code. 

288. Existing corporations not affected. 

288. Name of instrument creating corporation. 

290. Articles of incorporation, what to contain. 

291. Certain corporations to state further facts in articles. 

292. Five corporators, three to be citizens of the State, to slfB 

articles and acknowledge the same. 
288. Prerequisite to filing articles. Amounts to bo subiorlbed to 

be fixed. 
29i. Prerequisite to filing articles of corporations for profit. 

295. Oath of officer to subscription of stock and payment of tec 

per cent. 

296. To file articles with county clerk and secretary of state, 

and receive certificate. Term of existence. 

297. Certified copy of certificate to be prima facie evidence. 

298. Who are members and who stockholders of a corporation 

299. When member dies successor to be elected. 

300. Banking corporations may elect to have capital stock. 

§ 283. A CORPORATION IS a creature of the law, having 
certain powers and duties of a natural person. Bein^ created 
Dj the law, it may continue for auj leng:th of time ^dtich the 
iaw prescribes. 

61 Cal. 410. 

f 284. Corporations are either public or private. Public 
6>>ryx>ration8 are formed or organized for the government of a 
portion of the State ; all other corporations are private, f la 
iffect July 1, 1874.1 

61 Cal. 409. 

§ 286. Private corporfttions may be formed by the volun- 
.nry awociation of any five or more persons in the mannei 

ugitized by Google 



17 FORMATIOK OV OOMPOKATIOMt. §{ 286-288 

ineflcribed in this artidd. A nuMority of sach penoni mnit 
be roddents <^ this State. [In effect Jnljr 1, 1874.] 

S 286. Private corporations may be formed for an/ poiu 
pose for which individuals may lawfUlj associate themMLyea. 
[ineflfect Juljl, 1874.] 

§ 287. Anj corporation existing on the first day of Jana 
try, one thousand ei^ht hundred and seventy-three, formeo 
nnder the laws of this State, and still existing, which has not 
already elected to continue its existence, under the provisionf 
of this Code applicable thereto, may, at anv time nereafter, 
make such election by 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 subject, if voted by 
stockholders representing a majority of the capital stock, or 
by a majority or the members, or may be made by the dire<y 
tors upon the written consent of that number of such stock- 
holders or members. A certificate of the action of the direc^ 
tors, 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 proceed- 
ings of the meeting of the stockholders or members, when 
such election is made at any such meeting, si^ed by the 
chairman and secretary of the meeting, and a majority of the 
directors, must be filed in the office of the derk oi the county 
where the original articles of corporation are filed, and a cer- 
tified copy thereof must be filed m the office of the secretary 
of state ; and thereafter the corporation shall continue its ex- 
istence under the provisions of this Code which are applicable 
thereto, and shall possess all the rights and powers, and be 
suMeet to all the obligations, restrictions, and limitations pre- 
scribed thereby. [In efiect July 1, 1874.1 
57 Oal. 683. 

i 288« No corporation formed or existing before twelve 
o'clock, noon, of the day upon which this Code takes effect, v 
effected 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 287 ; but the laws nn- 
ier winch such corporations were formed and exist are appli- 
lable to all such corporations, and are repealed, subject to th« 
(rovisions of this section. r^ ^ ^ ^ i ^ 

62 Oal. 141. ugtzedbyL^OOgle 



L 



§§ 289-291 FORMATION OV CORPOBATIONB. 48 

§ 289. The instrument by which a private corporation ifl 
formed is called " Articles of Incorporation, " 

§ 290. Articles of incorporation must be prepared, setting 
forth : First, the name of the incorporation. Second, the pur- 
pose for which it is framed. Third, the place- where its prin- 
cipal business is to be transacted. Fourth, the term for which 
it is to exist, not exceeding fifty years. Fifth, the number of 
its directors or trustees, which shall not be less than five nox 
more than eleven, and the names and residence of those who 
are appointed for the first year ; provided, that the corporate 
powers, business, and property of corporations formed or to 
be formed for the purpose of erecting and managing halls and 
buildings for the meetings and accommodation of several 
lodges or societies of any benevolent or charitable order or 
organization, and in connection therewith the leasing of stores 
and offices in such building or buildings for other purposes, 
may be conducted, exercised, and controlled by a board of not 
less than five nor more than fifty directors, to be chosen from 
among the stockholders of such corporation, or from among 
J^ the members of such order or organization ; and provided also^ 
*^ that at any time during the existence of corporations for 
^ profit, other than those of the character last herein above pro- 
j vided for, the number of the directors may be increased or di- 
J minished by a majority of the stockholders of the corporation, 
1^ to any number not exceeding eleven nor less than five, who 
^must be members of the corporation, whereupon a certificate, 
stating the number of directors, must be filed, as provided for 
in section two hundred and ninety-six, for the filing of the 
original articles of incorporation. Sixth, the amount of its 
capital stock, and the number of shares into which it is di 
vided. Seventh, if there is a capital stock the amount ae 
tually subscribed, and by whom. [In efiect April 16, 1880.1 
53 Cal. 128 ; 66 Cal. 345. 

§ 291. The articles of incorj)oration of any railiiMkd, 
wagon road, or telegraph organization must also state : 

1. The kind of road or telegraph intended to be coa 
etructed. 

2. The place from and to which it is intended to be nm, aani 
all the intermediate branches ; 

3. The estimated length of the road or telegraph line ; 

4. That at least ten per cent, of the capital stock sab 
Mjribed has been paid in to the treasurer of tno intended coi 
<»ration. ,gi,^3, ,y Google 



19 FOBlfATiON OF COSPOBATIOKB. §§ 292-296 

§ 292. The articles of incorporation mnst be Babscribed h^ 
five or more persons, a majority of whom mnst be residents of 
this State, and acknowledged hj each before some officer au- 
thorized to take and certify acknowledgments of conveyance 
of real property. [In effect Jnly 1, 1874.] 

J[ 293. Each intended corporation named in section 391, 
ore filing articles of incorporation, mnst hare actually sal>' 
Kribed to its capital stock, for each mile of the contemplated 
wr^rk, 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 loads. 
68 Cal. 128. 

§ 294. Before the articles of incorporation of any corp<v 
ration referred to in the preceding 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 sub- 
scribed. 

57 Cal. 39«. 

§ 295. Before the secretary of state issues to any suco 
corporation a certificate of the filing of articles of incorpora- 
tion, there must be filed in his office an affidavit of the pres- 
ident, secretary, or treasurer nanied 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 treas- 
urer for the benefit of the corporation. 

Signing fictitious namo or fraud in the subscription Is made a niiflde 
meanor by Penal Code, § 667. 

§ 296. Upon filing the articles of incorporation in the 
office of the county clerk of the county in which the princi' 
Dal business of the company is to be transacted, and a copy 
(hereof, 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 
rf facts, nas been filed in his office ; and thereupon the per- 
sons signing the articles, and their associates and successors, 
vhall be a body politic and corporate, by the name stated in 
tfie certificate, and for the term of fifty years, unless it is in 
ih.e articles of incorporation otherwise stated, or in this Ccid« 
^herwise specially provided. [In effect July 1, 1874-1 






f§ 297-299 FOBMATION OF COBPOBATIOH8. 50 

§ 297. A copjof any articles of incorporation filed in pur- 
Buance of this chapter, and certified by the secretary of state, 
must be received in all the coarts and other places as prima 
/ac26 evidence of the facts therein stated. [In effect July 1, 
1874.] 



§298. The owners of shares in a corporation which has a 
capital stock are called stockholders. If a corporation has no 
capital stock, the corporators and their successors are called 
members. 

§ 299. No corporation hereafter formed shall purchase 
kx^te, or hold property in any county in this State, without 
filing- a copy of the copy of its articles of incorporation tiled 
in the office of the secretary of state, duly certified by such 
secretary of state, in the office of the county clerk of the 
county in which such property is situated, within sixty days 
after such purchase or location is made. Every corpor^ion 
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 aiticles oi 
incorporation in the office of the county derk of every county 
in this State in which it holds any property, except the county 
where the original articles of incorporation are filed ; and u 
any corporation hereafter acquire any property.' in a county 
other than that in which it now holds property, itrmust, withia 
ninety days thereafter, file with the clerk of such county such 
tertified copy of the copy of its articles of incorporation^ The 
copies so filed with the several county clerks and certified 
copies thereof shall have the same force and effect in evidence 
as would, the originals. Any corporation failing to comply 
with the provisions of this section shall not maintain or de- 
fend any action or proceeding in relation to such property, iti 
rents, issues, or profits, untU such articles of incorporation, 
and such certified copy of its articles of incorporation, and 
•uch certified copy of the copy of its articles of incorporation 
•hall be filed at the places directed by the general law and 
khis section ; provided, that all corporations shall be liable in 
damages for any and all loss that may ariise by the failure o( 
snob corporation to perform any of the foregoing duties within 
the time mentioned in this section ; and provided further , that 
Ae said damages may be recovered in an action brought ii 
iny court of this State of competent jurisdiction, by any partj 
or parties suffering the same. [In effect, April 23, 1880.) 



Mia . FOlUfAfXON OF COP^ORATIOKt. $ 800 

§ dOO. Every corporatiob that has heen or may^ he crsatatf 
■nder the general laws of this State, doing a banking hnsiTieft 
therein, and which has no capital stock, may elect to have a 
capital stock, and may issue certificates of stock therefor in 
the same manner as corporations formed under the provlaioiii 
at Chapter I., Article I., of the Cinl Code, relating to the 
formation of corporations : provided, that no ench corporation 
shall nse or convert any moneys or funds theretofore belong- 
ing to it or under its control into capital stock, but such fundi 
or moneys must be held and managed only for the purpoeef 
and in the manner for which they were created. Before sncb 
change is made, a majority of the member^of such corporation 
present at a meeting called for the purpose of considering the 
proposition whether it is best to have a capital stoca. Us 
amount, and the number of shares into which it shall be di* 
vided, 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 snch meet- 
ing and its object must be given by the president of such cor- 
poration by publication in some newspaper printed and pub- 
lished in the county, or city and county, in wnich the principal 
place of business of the corporation is situated, at least once a 
week for three successive weeks prior to the holding; of the 
meeting. A copy of the proceedings of this meeting, giving the 
number of persons present, the votes taken, the notice cahiug 
the meeting, the proof of its publication, the amount of capital 
actually subscribed, and by whom, aU duly certified bj the 
president and secretary of the corporation, must be filed m the 
offices of the secretary of state and clerk of the county where 
the articles of incorporation are filed. Thereafter such corpo- 
ration is possessed of all the rights and powers, and is subject 
to all the obligations, restrictions, and limitations, as if it had 
been originally created with a capital stock. And provided, 
further, that no bank in this State shall ever pay any dividend, 
upon so called guaranty notes, .nor upon any stock except 
npon the amount actually paid in money into said capital 
Bpon such stock, and any payment made in violation of thif 
provision shall render all officers and directors consenting to 
the sftme jointly and severally liable to the deposil^iTii to th' 
iztent thereof. [In effect May 28, 1878.] 

66 Oal. 849 

Digitized by VjOOQIC 



I EOl FORMATION OF COBPORATIONS « 50 £ 



ARTICLE n. 

BT-LAWS, DIRECTORS, ELECTIONS, AND MEBTINGS 

iMnoM 301. Adoption of by-laws, when, how, and by whom 
802. Directors, election of, &c. 

303. By-lawB may provide for what. 

304. By-laws recorded and how amended. 

305. How many and who to be directors. 

306. Directors must be elected and by-laws adopted at first bimi 

ing. ^ 

807. Elections, how conducted. 

808. Organization of board of directors, &c. 

809. DiTidend.s to be made from surplus profits. 

310. Removal from office of directors, &o. 

311. Justice of the peace may order meeting when 

312. Majority of stock must be represented. 

313. All stork may be represented in votes. 

814. Election may be postpoued. 

815. Complaints and quo warranto regarding eleotioiu. 

816. Fab;e certificate, report, or notice to make officers Uabte 

817. Meetlnp by consent to be valid. 

818. Proceediug> :it meeting to be binding. 

819. Meetings, where held. 

820. Special meetings, how callfd. 

} 801. Every corporation formed under this title miis^ 

idthin one month after filiiif^ articles of incorporation, adopt a 
Code of by-laws for its government not inconsistent with th« 
CJ<>ustitution and laws of this State. The assent of stockbold 
era representing a majority of all the subscribed capital stock, 
or of a majority of the members, if there be no capital stock, 
»8 necessary to adopt by-laws, if they are adopted at a meet- 
ing called for that purpose ; and^ in the event of such meetinj» 
i-^j-^or called, two weeks' notice of the^same by advertisement 



,y Google 



51 FORMATION OF CORPORATIONS, §§ 302" 303 

in some newspaper published in the countj in which the priii* 
cipal place of bnsiness of the corporation is located, or if nont 
is published therein, then in a paper published in an adjoining 
county, must be given by order of the acting president. The 
written assent of the holders of two thirds of the stock, or of 
two thirds of the members, if there be no capital stock. ihAll 
be effectual to adopt a code of by-laws without a meeting for 
ihat purpose. [In effect July 1, 1874.] 

§ 302. The directors of a corporation must l)e elected an 
nualiy by the stockholders or members, and if no provision i.- 
nade in the by laws for the time of election, tho election must 
be held on the first Tuesday in June. Notice of such ejec- 
tion must be given, and the right to vote determined as pre- 
scribed in section 301. 

§ 303. A corporation may, by its by-laws, whei-e no other 
provision is specially made, provide for : 

1. The time, place, and manner of calling and condnctinj? 
its meetings, and may dispense with notice of all regular mee^ 
ings of stockholders or directors ; 

2. The number of stockholders or members constituting a 
qnprum ; 

3. The mode of voting by proxy ; 

4. The qualifications and duties of directors, the time of 
their annual election, and the mode and manner of giving no- 
tice thereof; 

5. The compensation and duties of officers ; 

6. The manner of election and the 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 offence. 

8. The newspaper in which all notices of the meetings of 
stockholders or Board of Directors, notice of which is required, 
shall be published, which must be some newspaper published 
in the county where, the principal place of business of the cor- 
poration is located, or if none is published therein, then in a 
newspa])er published in an adjoining county ; provided^ that 
when the by-laws prescribe the newspaper in which said publi- 
cation shall be made, if from any cause, at the time any publi- 
cation is desired to be made, the publication of such newspaper 
shall have ceased, the Board of Directors may, by an order 
entered on the records of the corporation, direct the publica- 
tion to be made in some other newspaper published in the 
county, or if none is published therein, then in an adjoining 
eonnty. [Approved March 19, 1889.] 



§§ 304-306 FORMATION OF CORPORATIONS. 53 

§ 304. All by-laws adopted must be certified by a majority 
of the Directors and Secret »ry of the cor|)orati»ii, and copied 
in a legible hand, in some book kopt in the office of the cor- 
poration, to be known as the " Book of By-Laws/* and no by- 
law shall take effect until so co])ied, and the book shall then 
be opened to the inspection of the public during office hours 
of each day except holidays. The by-laws may be repealed 
or amended, or new by-laws may be adopted, at the annual 
meeting, or at any other meeting of the stockholders or mem- 
bers, called for that purpose by the Directors, by a vote repre- 
senting two thirds oi the subscribed stock, or by two thirds of 
the members. Tlie written assent of the holders of two thirds 
of the stock, or two thirds of the members if there be no capi- 
tal stock, shall be effectunl 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 stock- 
holders or members. Whenever any amendment or new by- 
law is adopted, it shall be copied in the book of by-laws with 
the originjil by-laws, and immediately after them, and shall 
not take effect until so copied. If any by-law be repealed, the . 
fact of repeal, with the date of the meeting at which the repeal 
was enacted, or written assent was filed, shall be stated in said 
book, and until'so stated the repeal shall not take effect. [Ap- 
proved March 14, 1885.] 

§ 306. The corporate powers, business, and property of 
all corporations formed under this tit'e must be exercised, 
conducted, and controlled by a board of not less than five not 
more than eleven directors, to be elected from among tnt 
holders of stock, or, where there is no capital stock, then from 
the membeia of such corporations ; except that corporations 
formed, or to be formed, for the purpose of erecting and man- 
aging halls and building^ for the meetings and accommodation 
of sevei-al lodges, or societies, of any benevolent or dharitaUe 
order, or organization, and in connection therewith, the lead- 
ing of stores and offices in such building or buildings, for otlier 
purposes, the corporate jwwers, business, and property thereof 
may be conducted, exercised, and controlled by a board of not 
•^ than five nor more than fifty directors, to be chosen from 
-g the stockholders of such corporation, or from among 
•mbers of such order or organization. A majority of the 
•s must be, in all cases, citizens of this State. Directon 
orations for profit must be holders of stock therein, ii 



S8 FOSMATION OF COKPORATIONS. §§ 306'809 

■a amount to be fixed hy the by-laws of the oorpontion. 
Directors of all other corporations inust be members Uiereof . 
Unless a quorum is present and acting, no business performed, 
or act done, is valid, as against the corporation. Whenever 
a vacancj' 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. [In effect January 20, 
•876.] 

§ 306. Repealed March 19, 1889. 

§ 307. All elections must be by ballot, ahd every stock 
Bolder shall have the right to vote in person or by proxy th« 
Dumber of shares standing in his name, as provided in section 
three hundred and twelve of this Code, for a« many persons 
3bB there are directors to be elected, or to cumulate said shares 
and give one candidate as many votes as the number of di- 
rectors multiplied by the number of his shar<»8 of stock shall 
equal, or to distribute them on the same principle nmong as 
many candidates as he shall think fit. 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. 
I or may distribute the same among any or all of the candi 
^.^ dates. In either case, the directors receiving the highest nnm 
^ ber of votes shall be declart-d elected. The provisions of this 
section, so far as it relates ro cumulative voting, shall not ap- 
ply to literary, religious, scientific, social, or benevolent so- 
cieties, unless it shaB be so provided in their by-laws or rules. 
[In effect March 7, 1889.] 

§ 308. Immediately afl»r 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 per- 
form the duties enjoQsed on them by law and the by-laws ol 
the corporation. A majority of the directors is a sufticient 
number to form a board for the transaction of business, and 
every decision of a majority of the directors forming such 
77 >ard, made when duly assembled, is valid as a corporate act. 

^ § 309. The directors of corporations must not make divi- 

-^ dends, except for the surplus profits arising from the business 

. ^• thereof ; nor must they divide, withdraw, or pay to the stock- 

Skl^olders^ or any of them, any part of the capital stock ; nor 

I must tney create debts beyond their subscribed capital stock. 

' K »r reduce or increase the capital stock, except as hereinafter 

^•pedally provided. For a violation of the provisions of this 

lection the directors under whose administration the same 



§§ 310-311 FORMATION OP COKPORATIONI. 5« 

may have happened (except those who may have caused their 
disaeiit tlurefrom to be entered at large on the minutes of the 
directors at the time, or were not present when the same did 
happen ) are, in their individual and private capacity, jointly 
and severally liable to the corporation and to the creditOTs 
thereof, in the event of its dissolution, to the full amount of 
the capital stock so divided, withdrawn, paid out, or reduce<I, 
or debt contracted ; and no statute of limitations is a bar to 
any suit against such directors for any sums for which they 
are made liable by this section There may, however, be a 
division and distribution of the capital stock of any corpo 
ration which remains after the payment of all its debts, upon 
its dissolution or the expiration of its term of existence. 

Misconduct as to dividends and discounts. Penal Code, § 560 : Fraud \n 
counts, § 663 ; False reports, ^ 564 ; By absent director, §§ 569. 570 

67Cul. oy-i; 58CaL 66i. 

§ 310. No director shall ne removed from office, unless by 
t 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 tc 
pro|)03e such removal. Meetings of stockholders for this pur* 
p(»<e may be called by the president, or bv a majority of the 
directors, or by members or stockholders noldiug at least one 
hsilf of the votes. Such calls must be in writing:, and addressed 
t^ the secretary, who must thereupon give notice of the time, 
place, and object of the meeting, and by wliose order it is 
called. If the secretary refuse to give the notice, or if there 
is none, the call may be addressed directly to the membera or 
stockholders, and be served as a notice, in which case it must 
specify the time and place of meeting. The notice must be 
given in the manner provided in section 301 of this titlo, 
unless other express provision has been made therefor in the 
by-laws. In case of removal, the vacancy may be filled by 
election at the same meeting. 

§ 311. Whene\er, from any cause, there is no person au- 
thorized to call or to preside at a meeting of a corporation, 
any justice of the peace of the county where such corporation 
is established may, on written application of three or more ol 
the stockholders or of the members thereof, issue a warrant to 
one of the stockholders or members, directing him to call a 
meeting of the coi-poration, by giving the notice required, and 
the justice may in the same warrant direct such pei^on to 
preside at such meeting until a clerk is clioseu and qutilitied, 
tf there is no other officer present legally authorized to preside 
thereat. 



»9 FORMATION OF CORPORATIONS. §§ 312-316 

§ 312. At all elections or votes had for any parpoae then 
awst be a majority of the subscribed capital stock, or of the 
{uembers, represented, either in person or by proxy in writ- 
ing . Every person acting therein, in person or by proxy or 
representative, must be a member thereof or a oana fide 
stockholder, having stock in his own name on the stock books 
of the corporation at least ten days prior to the election. Anv 
vote or election had other than in accordance with the provi- 
sions of this article is voidable at the instance of absent or any 
•tockholders or members, anr may be set aside by ))etition to 
the District Court of the county where the same was held. 
Ajiy regular or called meeting of the stockholders or momberi 
may adjourn from day to day, or from time to time, if for any 
•«a«on there is not present a majority of the subscribed stopi 
or members, or no election had — such adjournment and the 
reasons therefor being recorded in the journal of pioceedings 
Df the board of directors. [In effect April 1, 1878.1 

§ 313. The shares of stock of an estate ot a minor, or u- 
lane person, may be represented by his guardian, and of a 
deceased person by his executor or administrator. [In effect 
July 1, 1874.] 
*$ 314. If from any cause an election does not take place 
on the day appointed in the by-laws, it may be held on anv 
day thereafter as is provided for in such by-laws, or to which 
such election may be adjourned or ordered by the directors. 
If an election has not been held at the appointed time, and no 
adjourned or other meeting for the purpose has been ordered 
by the directors, a meeting may be called by the stockholders 
IS provided in section 310 of this article. 

§ 315. Upon the application of any person or body corpo- 
rate aggrieved by any election held by any corporate body, the 
District Court of the district in which such election is held must 
proceed forthwith to hear the allegations and proofs of the 
parties, or otherwise inquire into the matters of complaint, and 
thereupon confirm the election, order a new one, or direct such 
other relief in the premises as accords with right and justice. 
Upon filing the petition, and before 2iiiy 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. [In effect 
April 1, 1878.] 

§ 316. Any officer of a corporation who wilftilly gives » 
"ertificatc, or wilfully makes an official report, public notice, 
kW entry in any of the records or books of the corporation, 
iDoncerning the corporation or its business, which is false in 
■ny material representation, shall be liable for all the damages 



!§ 8 17-821 a FOKMATiON of COKPORATIONB. 9f 

fesaltmg therefrom to any person injured thereby; and if two 
i}r more officers unite or participate in the commission of any 
of the acts herein designated, they shall be jointly and sever- 
ftlly liable. [In effect July 1, 1874.] 

Penal Code, §$ 668, 561 

X § 317. When all the stockholders or members of a corpor*' 
tkm are present at any meeting, however called or notified, 
wd sign a written consent thereto on the record of such meei- 
ing, the doings of such meeting are as valid as if uad at a 
meeting legally called and noticed. 

§ 318. The stockholders or members of such corporadon, 
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. 

§ 319. The meetings of the stockkolders and board cl 
directors of a corporation must be held at its office or prin- 
eipal place of business. 
7^ § 320. When no provision is made in the by-laws for teg- 
nlar meetings of the directors and the mode of calling spe- 
cial 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. 

§ 321. Every corporation doing a banking business in this 
State must keep in its office, in a place accessible to the stock- 
holders, depositors, and creditors thereof, and for their use, a 
book, containing a list of all stockholders fn such corporation, 
and the number of shares of stock held by each ; and every 
such corporation must keep posted in its office, in a conspicn- 
ons place, accessible to the public generally, a notice, signed 
by the president or secretary, showing : First, The names of 
the directors of such corporation. Second, The number and 
value of shares of stock hdld by each director. The entries on 
such DooK, and such notice, shall be made and posted within 
twenty-four hours after any tmnsfer of stock, and shall be 
conclusive evidence against each director and stockholder oi 
the number of shares of stock held by each. The provision! 
of this section shall apply to all banking corporations, formed 
*a existing before twelve o'clock, noon, of the day on which 
Vhls Code took effect, as well as to those formed after such 
dmQ. [Approved January 29, 1876.] 

§ 321a. Every corporation that has been or may be created 
under the general laws of this State may change its principal 
>lace of business from one place to another in the sami 

«iniy, or from one city or county to another city or countj 



S7 



CORPOUATS gTOOK. 1 822 



rithin this State. Before sach change is made, ilm conaent 
II wtiting, of^ the holders of two thirds of the capital stocl 
«in< oe obtained and filed in the affles of the corporation 
When such consent is obtained and filed, notice of the in 
tended removal or change mnst be published, at least once a 
jreek, for three successive weeks, in some newspaper published 
In the county wherein said principal place of business is situ- 
ated, if there is one published therein ; if not, in a newspaper 
o{ an adjoining county, giving the name of the county or city 
where it is situated, and that to which it is intended to remove 
h. [In effect Aprl 3, 1876.] 
JX/ ^^ e3^>jtf 

CHAPTER IL 

OOBPOBATB 8TOOK. 



ABTICLE I. 

STOCK AND STOCKHOLDERS. 

822. LlaUlltieB of ftoekholders. They nuy be released, whea 
828. Oertiflcates, how and when Issued. 
82i. Znuufer of shares. 

825. TnoBier of shares held by mazried women, &o IMvidendi 

payable to married women. 

826. Non-reBldent stockholders. Bonds. 
8ZI. Contract to relieye directors Toid. 

§ 822. Each stockholder of a corporation is individually 
and personally liable for such portions of its debts and liabili- 
ties as the amount of stock or shares owned by him bears to 
tlie whole of the subscribed capital stock or shareb of the co:v 
poration, and for a like proportion only of each debt or claim 
Igainst the corporation. Anj creditor of the corporation may 
institute joint or several actions against any of its stock- 
holders, for the proportion of his claim payable by each, and 
in such action the court must ascertain tne proportion of the 
daim or debt for which each defendant is liable, and a sever^ 
}ndpment must be rendered against each, in conformity there- 
wttnl If any stockholder pays his proportion of any debt due 
^m the corporation, incurred while he was such stockliolder, 
be is relieved fonn any ftirther personal liahility for sich debt, 
ind if an action has been brougnt against him. upon such debt, 
it shall be dismissed, as to him, upon his paying the costs, or 
iiidi proportion thereof as may be properly chargeable against 
Urn. The liability of each stockholder is determined by the 
tmonnt of stock or shares owned by him at the time the debt 



•^^' 



I 823-324 GORPOSATB STOCK. 58 

X liability was incurred ; and such liability is not released by 
iny subsequent transfer of stock. The term stockholder, as 
nsed in this section, shall apply not only to such persons as 
appear by the books of the corporation to be sucb, but also 
to every equitable owner of stock, althou.irh the same appear 
on the books in the name of another ; and also to every pei- 
son who has advanced the instalments or purchase-money of 
stock in the name of a minor, so long as the latter remain? a 
minor ; and also to every guardian, or other trustee, who vol- 
untarily invests any trust funds in the stock. Trust funds in 
the hands of a guardian, or trustee, shall not be liable undet 
the provisions of this section, by reason of any such invsst- 
ment ; nor shall 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 tne guardian or trustee making the investment shall con- 
tinue until that period. Stock held as collateral security, oi 
by a trustee, or m any other representative capacity, does not 
make the holder thereof a stockholder within the meaning oi 
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 the pledgor, or person or estate repre- 
sented, 18 to be deemed the stockholder, as respects such lia- 
bility. In corporations having no capital stock, each member 
is individually and personally liable for his proportion of its 
debts and liabilities, and similar actions may be brought 
against him, either alone or jointly with other members, to 
enforce such liability, as by this section may be brought 
against one or more stockholders, and similar judgments may 
be rendered. The liability of each stockholder of a corpo- 
ration formed under the laws of any other State or Terri- 
tory of the United States, or of any foreign country, and 
doing business within this State, shall be the same as the lia- 
bility of a stockholder of a corporation created under the 
Constitution and laws of this State. [Approved March 16, 
870.] 
58 Cal. 380. 
" § 323. All corporations for profit must issue certificates 
for stock when fully paid up, signed by the president and sec- 
retary, and may provide, in their by-laws, for issuing ceHifi 
catos prior to the full payment, under such restrictions and foi 
luch purposes as their by-laws may provide. 

§ 324. Whenever the capital stockiofd ta^^c^orporation is 
iivided into shares, and certificates therefor are issued, sucb 
Vares oi stock are personal property, and ma^ be transferred 



S9 OORPORATB BTOOK. §§ 325-a27 

by iudorsement hy the signatare of the proprietor, or his attor- 
ney or legal representative, and delivery of the certificate ; bnt 
guch transfer is not valid, except lietvreen the parties thereto, 
antil the same is so entered upon the books of the corporation 
as to show the names of the parties by and to whom trans- 
ferred, the number or designation of the shares, and the date 
of the transfer. 
53 Cal. 431. See act taxing transfer of shares, following § 471, p; p k. 
58 Cal. 426, 600. ^ 

§ 325. Shares of stock in corporations held or oTvned by 
a married woman may be transferred by her, her agent, oi 
attorney, without the signature of her husband, in the same 
manner as if such married woman were a feme sole. All 
dividends payable upon any shares of stock of a corporation 
held by a married woman may be paid to such married 
woman, her agent or attorney, in the same manner as if she 
were unmarried, and it is not necessary for her husband to 
join in a receipt therefor ; and any proxy or power given by 
a married woman, touching any shares of stock of any cor- 
poration owned by her, is valid and binding without the sig- 
nature of her husband, the same as if she were un^^arried. 

§ 326. When the shares of stock in a corporation ar^o^ned 
by parties residing out of the State, the president, secretary, 
or directors of the corporation, before entering any lAmsfer 
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 undier the 
transfer, an a£Sdavit or other evidence that the non-resident 
owner was alive at the aate of the transfer, and if such aflS- 
davit or other satisfactory evidence be not furnished, may re- 
quire from the attorney, a^ent, or claimant, a bond of indem- 
nity, with two sureties, -satisfactory to the officers of the cor- 
poration, or, if not so satisfactory, then one approved by a 
)img« of the Superior Court of the county in which the prin- 
cipal office of the corporation is situated, conditioned to pro- 
tect the corporation against any liability to the legal represen- 
tatives 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, 
ncitlier the corporation, nor any officer thereof, shall be liable 
Cor refusing to enter the transfer on the books of the corpora- 
tion. [In effect February 16, 1883.] 

58 Cal. 426. GoOqIp 

§ 327. Any contract or contracts, verfiaf^Sr wrin^n, here- 



.^§ 331-332 OOXFOKATB STOCK. 60 

after made, wnereby it ia sought directly or indirectly to 1©^ 

lieve any director or trustee of any corporation or joint stock 
wsociation from any liability imposed by section three 9f ar^ 
tide twelve of the Constitution of California, are hereby de- 
'*iwed to be and shall be null and void. [In effect April 13. 
<880.] 

ARTICLE n. 

ASSESSMENTS OF 8TO0K. 

Saonoir 881. Directors may lery aflnessments. 
882. Limitation. How levied. 

888. Levy of assessm^t. Old asMBsmeDt reinaiuing oapaM. 
884. What order shall contain. 
886. Notice of assessment. Fonn. 
886. Publication and service. 
. 887. Delinquent notice. Form 

888. Contents of notice. 

889. How published. 

840. Jurisdiction acquired, how. 

841. Sale to be by public auction. 

842. Highest bidder to bo the purchaser. 

848. In default of bidders, corporation may purchase 
844. Disposition of stock purchased by corporatioii. 
846. Extension of time of delinquent sale. 

846. Assessments shall not be invalidated. 

847. Action for recovery of stock, and limitation thereof. 

. 848. Affidavits of publication. Affidavits of sale. To be flled. 

849. Waiver of sale. Action to recover assessment. 

§ 331. The directors of any corporation formed or existing 
under the laws of this State, after one fourth of its capitw 
stock has been subscribed, may, for the purpose of paying ex- 
penses, conducting business, or paying aebts, levy and collect 
assessments upon the subscribed capital stock thereof, in the 
manner and form, and to the extent provided herein. [In 
effect July 1, 1874.] 

§ 332. No one assessment must exceed ten per cent, of the 
tmount of the capital stock named in the articles of incorpora- 
tion, except in the cases in this section otherwise provided 
for, as follows : 

1. If the whole capital of a corporation has not been paid 
up, and the corporation is unable to meet its liabilities or to 
satisfy the claims of its creditors, the assessment may be for 
the full amount unpaid upon the capital stock ; or if a lesi 
tmount is sufficient, then it may be ror such a percentage af 
vill raise that amowkC » 



>1 OOSVOBATE STOCK. §§ 888-386 

2. The directors of railroad corporations maj assess the 
rapital stock in instalments of not more than ten per cent, 
per month, unless in the articles of incorporation it is other- 
wise provided ; 

3. The directors of fire or marine insurance corporationi 
may assess such a percentage of the capital stock as thbj 
deem proper. 

§ 333. No assessment must be levied while anj portion ol 
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. 

§ 334. Every order levying an assessment must specify the 
amount thereof, when, to whom, and where payable ; fix a 
day, subsequent to the full term of publication of the assess- 
ment notice, on which the unpaid assessments shall be delin- 
quent, not less than thirty nor more than sixty days from the 
time of making the order levying the assessment; and a day 
for the sale of delinquent stock, not less than fifteen nor more 
than sixty days from the day the stock is declared, delin- 
quent. 

§ 335. Upon the making of the order, the secretary shall 
eause to be published a notice thereof, in the following form • 

(Name of corporation in full. Location of f>rincipal place of 
lusiness.) 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 assess- 
ment shall remain unpaid on the (day fixed) will be delinquent 
ftnd advertised for sale at public auction, and, unless payment is 
made before, will be sold on the (day appointed), to pay the delin- 
quent assessment, togethex with costs of advertising and expenses 
oi sale. 

(Signature of secretary, with location of office ) 

§ 336. The notice must be personally served upon each 
itockholder, or, in lieu of personal service, must be sent 



1$ 837-838 CORPORATE stock. 61 

through the mail, addressed to each stockholder at his place of 
residence, if known, and if not known, at the place where th* 
principal office of the corporation is situated, and be published 
ouce a week, for four successive weeks, in some newspaper oi 
general 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 therein. If 
the works of the corporation are not within a State or Tetri- 
tory of the United States, publication in a paper of the place 
wheie they are situated is not necessary. If there be no 
newspaper published at the place designated as the principal 
place of business of the corporation, then the publication must 
Be made in some other newspaper of the county, if there be 
one, and if there be none, then m a newspaper published in an 
adjoining county. [In effect July 1, 1874.f 

§ 337. If any portion of the assessment mentioned in the 
notice remains unpaid on the day specified therein for declar- 
ing the stock delinquent, the secretary must, unless otherwise 
ordered by the board of directors, cause to be published in the 
same papers in which the notice hereinbefore provided for 
shall have been published, a notice substantially in the follow 
ing form : 

(Name in full. Location of principal n'.ace of business.) No> 
VICE. — There is delinquent upon the following described 8to<l|:, 
on account of assessment levied on the (date), (and assessment! 
evied previous thereto, if any), the several amounts set opposite 
'the names of the respective shareholders, as follows: (Names, 
number of certificate, number of shares, amount) And in ac- 
cordance with law (and an order of the board of directors, made 
on the [date], if any such order shall have been made), so maov 
shares of each parcel of such stock as may be necessary, will Im 
sold, at the (particular place), on the (date), at (the hour) of such 
day, to pay delinquent assessments thereon, together with costs of 
alvertismg and expenses of the sale. 

(Name of secretary, with location of office.) 

§ 338. The notice must specify every certificate of siock, 
the number of shares it represents, and the amount dat 
thereon, except where certificates may not have been issued to 
^rties entitled thereto, in which case the number of sham 
%nd amount due thereon, together with the fact that the certt 
Scares for snch shares have not been issued, most be stAted. 



65 UOBPOKATB STOCK. §§ 388-345 

§ 889. The notice, when published in a daily paper, most 
be published for ten days, excluding Sandays and holidajtj 
previous to the day of sale. When publish'ed in a weekly 
paper, it must be published in each issue for two weeks pre- 
nous to the day of sale. The first publication of aU delin- 
quent sales must be at least fifteen days prior to the day oi 
lale. 

§ 340. By the publication of the notice, the corporation 
acquires jurisdiction to sell and convey a perfect title to all of 
the stock described in the notice of sale upon which any por- 
tion of the assessment or costs of advertising remains unpaid 
at the hour appointed for the sale, but must sell no more of 
such stock than is necessary to pay the assessments due and 
costs of sale. 

§ 341. On the day, at the place, and at the time appointed 
in the notice of sale, the secretary must, unless otherwise or- 
dered by the directors, sell or cause to be sold at public auc- 
tion, to the highest bidder for cash, so many shares of each 
parcel of the described stock as may be necessary to pay the 
assessment and charges thereon, according to the terms of 
sale ; if payment is made before the time fixed for sale, the 
party paying is only required to pay the actual cost of adver- 
tising, in addition to the assessment. 

' § 842. The person offering at such sale to pay the assess- 
ment 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 tne corporatioii> 
OfQ payment of the assessment and costs. 

§ 848. If, at the sale of stock, no bidd'^ir offers the amount 
of the assessments and costs and charges due, the same may 
be bid in and purchased by the corporation, through the sec- 
retary, president, or any director thereof, at the amount oC 
the assessments, costs, and charge due ; and the amount of 
the assessments, costs, and charges must be credited as paid in 
full on the books of the corporation, and entry of the transfer 
»f the stock to the corporation must be made on the books 
thereof. While the stock remains the property of the corpo- 
ration it is not assessable, nor must any dividends be declared 
thereon ; but all assessments and dividends must be appor« 
tioned upon the stock held by th^ stockholders of the corpo 
kation. 

67 CtA. 888. 



19 844-848 ooRPOSATE stock. 64 

§ 344. AH purchases of its own stock made by any corpo* 
ratiof Test the legal title to the same in the corporation ; and 
the rtock so purchased is held subject to the control of the 
stockholders, who may make such disposition of the same as 
they deem fit, in accordance with the by-laws of the corpora- 
tion or vote of a majority of all the remaining shares. When- 
ever any portion of the capital stock of a corporation is held 
by the corporation by purchase, a majority of the remaining 
shares is a majority of the stock for all purposes of election oi 
voting on any question at a stockholders* meeting. 

67 Cal. 398. 

§ 345. The dates fixed in any notice of assessment or no- 
tice of delinquent sale, published according to the provisions 
hereof, may be extended from time to time for not more than 
thirty days, by order of the directors, entered on the records 
of the corporation ; but no order extending the time for the 
performance of any act specified in any notice is etfectual im- 
less notice of such extension or postponement is appended to 
and published with the notice to which the order relates. 

§ 346. No assessment is invalidated by a failure to make 
publication of the notices hereinbefore provided for, nor by 
the non-jHrformjince of any act required in order to enforce 
the payment of the same ; but in case of any substantial error 
or omission in the course of proceedings for collection, all pre- 
vious proceedings, except the levying of tlie assessment, are 
void, and publication must be begun anew. 

§ 347. No action must be sustained to recover stock sold 
for delinquent assessments, upon the ground of irregularity 
in the assessment, irregularity or defect of the notice of sale, 
or defect or irregularity in the sale, unless the party seeking 
vo maintain such action first pays or tenders to the corpora- 
tion, or the partv holding the stock sold, tlie sum for which 
the same was sold, together with all subsequent fussessmenta 
which may have been paid thereon and interest on such sums 
from the time they were paid ; and no such action must be 
sustained unless the same is commenced by the filing of a 
complaint and the issuing of a summons thereon within six 
months after such sale was made. 

§ 348. The publication of notice required by this article 
may b« proved by the affidavit of tlie printer, foreman, oi 
principal clerk of the newspaper in which the samejvas pub 
5 



15 OOBFOBATS POWBB8. §{ 849-864 

Ifehed ; and the affidavit of the secretaiT or aactioneer is 
primA fade eyidence of the time and place of sale, of the 
quantity and particular description of the stock sold, and to 
whom, and for what price, and of the fact of the purchase 
money being paid. The affidavits most be filed in the office 
of the corporation, and copies of the same, certified by the 
secretary thereof, axe prima facie evidence of the facts therein 
stated. Certificates, signed by the secretary, and under the 
seal of the corporation, are prima facie evidence of the con- 
tents thereof. [In effect J-^ly 1, 1874.] 

§ 349. On the day speciAed for declaring the stock delin- 
quent, or at any time subsequent thereto and before the sale 
of the delinquent stock, the board of directors ma^ dlect to 
waive further proceedings under this chapter for th^ collec- 
tion of delinquent assessments, or any part or portion thereof, 
and may elect to proceed by action to recover the amount of 
the assessment and the costs and expenses already incurred* 
or any part or portion thereof. 



CHAPTER m. 
COBPORATB POWERS. 

AmoLa I. OsNUAL Fqiwebs, §§ 864-861. 
II. Beookds, §§ 877, 878. 
ni. ExAioNATioir OP CoxpoxATioir, U 882-884. 
rV. JJID9MXST AOAnrsT Ain> Sali or uobpobatk FBOpimTT, M 88& 
888. , 

ARTICLE I. 

OBNBEAL POWBB8. 

IsonOH 364. Powers of corporationB. 
866. Limitation of powers. 

866. Banking expressly prohibited. 

867. Misnomer does not invalidate instrument. 

868. Corporation to organisse within one year. 

369. Increasing and diminishing capital stock, how. 

840. Corporations may acquire real property, and how maeh 

IMH. Consolidation of mining corporations. 

362. Amendment of articles or certificate of incorporation. 

363. Power to hold real estate. 

868. Erroneous filing of articles of incorporation. 

§ 354. Every corporation, as snch, has power : 
1. Of succession, by its corporate name, for the period lim- 
ited ; and when no period is limited, perpetually ; 



K 366-868 CORPOKATB POWBBB. 6€ 

2. To sue and be sued, in any conrt ; 

3. To make and use a common seal, and alter the same ai 
pleasure; 

4. To purchase, hold, and conyey such real and persona, 
estate as the purposes of the corporation may require, not ex- 
ceeding the amount limited in this part ; 

5. To appoint such subordinate officers or agents as the 
business of the corporation may reqiire, and to allow them 
•nitable compensation ; 

6. To make by-laws, not inconsistent with any existing law, 
for the management of its property, the regulation of its 
affairs, and for the transfer of its stock ; 

7. To admit stockholders or members, and to sell theii 
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. 

52 Cal. 59 ; 66 Cal. 63. 

§ 366* In addition to the powers enumerated in the pre- 
ceding 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 exercise of the powers so enumerated and 
given. 

§ 366. No corporation shall create or issue bills, notes, or 
other evidences of debt, upon loans or otherwise, for circola- 
tion as moneys 

Issuing or circulating paper money, except as authorised by the United 
States, punished by Penal Cod<>, § 648. 

§ 367. The misnomer of a corporation in any written in- 
Btrun.6nt does not invalidate the instrument, if it can be rea- 
sonably ascertained from it what corporation is intended. 

§ 368. If a corporation docs not organize and commence 
the transaction of its business or the construction of its works 
within one year from the date of its incorporation, its corpo- 
rate powers cease. The due incorporation of any company, 
claiming in good faith to be a corporation under this part, 
and doing business as such, or its right to exercise corporate 
nowers, shall not be inquired into, collaterally, in any private 

it to which such de facto corporation may be a part> ; bul 
h inquiry may be had at the .^uit of tlic State on mfotma 
of the attorney general. 



X 



67 COBPORATE FOWBKB. § 369 

§ 359* No corporation shall issue stock or bonds except 
for money paid, labor done, or property actually received, and 
all fictitious increase of stock or indebtedness is void. Every 
corporation may increase or diminish its capital stock, create 
or increase its bonded indebtedness, subject to the foregoing 
provision. The capital stock /of a corporation may be in- 
creased or diminished at a meeting of the stockholders by a 
vote representing at least two /thirds of the capital stock. 
Such meeting must be called by the Board of Directors, and 
notice must be given by publication in a newspaper published 
in the countyiwhere the principal place of business of such 
corporation is located, or if there be none published in said 
county, then in a newspaper published in an adjoining county, 
such paper to be designated by the Board of l5irectors in the 
order calling the meeting, which order must be made^at least 
one month before the publication begins. The notice.must 
specify the 9bject of the meeting, and the amount to which it 
is proposed/to increase or diminish the capital stock, the time 
^1 and place 43f holding the meeting, which latter must be at the 
V. principal place of business, of the icorporation, and at the 
^^4v ^^^l^i^S where the Board of Directors usually meet. The 
)^^ notice herein provided must be published at least once a week 
^ for at least sixty days. , The capital stock cannot be diriHiiished 
I to an amount less than the indebtedness of the corporation. 
I*'^ The bonded indebtedness of a corporation may be created or 
^ ^V ii^c^^^®^ ^y ^ ^^^^ ^^ ^^^ stockholders representing at least 
>v two thirds of the entire capital stock at a meeting called by 
the Board of Directors, and after notice of the time and place 
of the meeting, published in the same manner and^or the time 
above prescribed, which notice shall state the amount of 
bonded indebtedness which it is proposed to create, or the 
amount to which it is proposed to increase such indebtedness, 
and shall in all other respects contain the same matters as are 
above provided and set forth in the notice of a meetingJto in- 
crease or diminish the capital stock. In addition to the notice 
by publication, the secretary of the corporation shall also ad- 
dress a notice to each of the stockholders at his place of resi- 
dence, if Ikuown, and if not known then at the place of busi- 
- • ness of the corporation, which notice shall be mailed to the 
stockholders at least sixty days before the day appointed for 
such meeting ; and upon such increase or diminution of the 
capital stock or creation or increase of bonded indebtedness 
being made as herein provided, a certificate must be signed by 
the chairman and secretary of the meeting and a majority of 
the Directors, showing a compliance with the rfquirements of 
this section, the amount to which the capital stock has been 



§§ 860-861 CORPORATE POWERS. 68 

increased or diminished, or the amount of the bonded indebt- 
edness created or to which the bonded indebtedness may have 
been increased, the amount of stock represented at the meet> 
in«^, and the whole vote by which the object was accomplished. 
The certificate must be fi'l» d in the office of the Clerk of the 
county whtre the original articles of incorporation are filed, 
and a certified copy thereof in the office of the Secretary of 
State ; and thereupon the capital stock shall be so increased 
or diminished, or the bonded indebtedness may be created or 
increased accordingly. When the by-laws of the corporation 
prescribe the paper in which notice V>f meetings are to be pub, 
iished, the notices herein provided for shall be published in 
such paper unless publication thereof shall have ceased. [Ap- 
jiroved March 19, 1889 ] 

§ 360. No corporation shall acquire or hold any more 
real property than may be reasonably necessary for the 
transaction of its business, or the construction of its works, 
except as otherwise specially provided. A corporation may 
tcquire real property, as provided in Title VII., Part UI., 
Code of Civil Procedure, when needed for any of the uses ami 
purposes mentioned in said title [§§ 1237-1263]. [In eflecl 
July I. 1874.] 

§ 361. It shall be lawful for two or more corporations 
formed, or that may hereafter «be formed, mder 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 companies so desiring to consolidate their 
interests ; but no such consolidation shall take place without 
the written consent of the stockholders representing two 
thirds of the capital stock of each company|and no such con- 
solidation shall, in any way, relieve such companies, or the 
stockholders thereof, from any and all just liabilities ; and in 
case of such consolidation, due notice of the same shall be 
given, by advertising, for one month, in at least one news- 
paper in the county and State where the said mining prop- 
erty is situated, if there be one published therein, and also m 
one newspaper published in the county, or city and county, 
where the principal place of business of any of said companies 
shall be. And when the said consolidation is completed, <a 
certificate thereof,'contaiuin^ the manner and terms of said 
consolidation, shsdl be filed m the office of the county clerk 
of the county in which the original certificate of incorporation 
af any of said companies shall be filed, and a copy thereof 



68a ' GOBPOBATE POWEB8. §§362 

shall be filed in the office of the secretary of state ; sach cer- 
^ tificate shall be signed by a majoritjr of each board of trustees 
j or directors of the original companies, and it shall be their 
r^ duty to call, within thirty days after the filing of sach certifi< 
fNiUi*^ cate, and after at least ten days' public notice, a meeting of 
y^ the stockholders of all of said companies so consolidated, to 
^^ elect a board of trustees or directors for the consolidated corn- 
s' i^ p^ny, for the year thence next ensuing. The said certificate 
^ I shall also contain all the requirements prescribed by section 
^ 1^ two hundred and ninety of said Civil Code. 
1^ ^ This act shall apply to all corporations formed under the 

w^. \aws of this State, whether formed under the said ClvU Code 
3g2 \ or prior thereto. [In effect March 20, 1876.] 
cc i* § 362. Any corporation may amend its articles of associa- 
13* lis tjx^n or certiHcate of incorporation by a majority vote of its 
Board of Directors or Trustees, and by a vote or written assent 
of the stockholders, representing at least two-thirds of the cap- 
ital stock of such corporation ; and a copy of the said articles 
of association or certificate of incorporation, as thus amended, 
duly certified to be correct by the President and Seci*etary of 
the Board of Directors or Trustees of such incorporation, .-^liall 
be filed in the office or offices where the original or certificates 
of incorporation are required by this Code to be filed ; Hnd 
from the time of so filing such copy of the amended articles 
of association or certificate of incorporation, such corporation 
shall have the same powers, and it and the stockholders thereof 
^^ shall thereafter be subject to the same liabilities as if such 
\^^ amendment had been embraced in the original articles or cer- 
S|w^ tificate of incorporation; provided, that the time of the exist- 
X ence of such coi*poration shall not be by such amendment ex- 
* I tended beyond the time fixed in the original articles or certifi- 
•bf^ cate of incorporation ; provided further, that such orii^iinal and 
^^ amended articles or certificate of incorporation shall tojrether 
'Vcontain all the matters and things required under which the 
original articles of association or certificate of incorporation 
' were executed and filed ; and, provided further, that nothing 

herein contained shall be constiued to cure or amend any de- 
fect existing in any original certificate of incorporation here- 
tofore filed, by reason that such certificate does not set forth 
the matters required to make the same valid as a certificate of 
incorporation at the time of its filing: ; and also provided, that 
if the assent of two thirds of the stockholders to such amend- 
ment has not been obtained, that a notice of the intention to 
make the amendment shall first be advertised for thirty (30) 
days in some newspaper published in the town or county, or 



§ 863 CORPORATE POWERS. ' 686 

city and coanty, in which the principal place of business of the 
association or corporation is located, before the filing of the 
proposed amendment ; and, provided also, that nothing in this 
section shall be construed to authorize any corporation to di- 
minish its capital stock. [Approved March 12, 1885 ] 

§ 363. By a unanimous vote of all the Directors at any 
regular meeting, any corporation existing or hereafter to be 
formed under the laws of this State may acquire and hold the 
lots and building on and in which its business is carried on, 
and may improve tlie same to any extent required for the con- 
venient transaction of its business. [In effect March 5, 1889.] 

§ 36l[/ When articles of incorporation have been pre- 
pared, subscribed, and executed in accordance with jhe pro- 
visions 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 coanty 
in which the principal place of business is to be transacted, 
and the Secretary of State shall have issued a certificate of in- 
corporation based on a certified copy of such original articles 
of incorporation, any stockholder or director of such corpora- 
tion 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 mast be veri- 
fied, and must state clearly the facts, showing that such arti- 
cles of incorporation were filed by inadvertence and mistake ; 
and notice oi the hearing of said petition must be given for at 
least ten days before the day of hearing, by publication in a 
newspaper published in the county where such petition is filed. 
Upon the day set for hearing the petition the Superior Coart 
may grant an order allowing such orij^inal articles of incorpo- 
ration to be withdrawn, and a certified copy of the copy in the 
office of the Secretary of State in the place thereof filed ; and 
the original articles of incorporation must be filed within ten 
days thereafter in the county in which the principal place of 
business is to be transacted, as stated in sued articles of incor- 
poration, and a certified copy of the order allowing such ac- 
tion must be filed with the certified copy in the office .of the 
Secretary of State, after which said corporation shall be en- 
titled to all rights and privileges of a private corporation, and 
the title to any property it may have previously acquired 
Sail not be affected by reason of the failure to file the origi- 
articles of incorporation iu the first instance. [In effett 
;h 19, 1889.] 



1 



•9 OOBFOBATB POWXB8. S| 377-87l» 

ARTICLE n. 

BBOOBDB. 

Fi<rioii 877. Becords — of what, and how kept. 

878. Other records to be kept by oorporatloiii for proit, wmM 
others. 

f 877« All corporations for profit are required to keep a 
rorord of aU their business transactionp ; a journal of all 
meetings of their directors, members, or stocKholders, with 
the time and place of holding the same, whether regular or 
ipecial, and if special, its object, how authorized, and the no- 
tice thereof given. The record must embrace every act done 
or ordered to he done ; who were present, and who absent ; 
and, if requested by any director, member, or stockholder, the 
time shall he noted when he entered the meeting or obtained 
leave of absence therefrom. On a similar request, the ayes 
and noes must he taken on any proposition, and a recorc 
thereof made. On similar request, the protest of any director, 
member, or stockholder, to any action or proposed action, 
mnst be entered in full — all such records to he open to the 
inspection of any director, member, stockholder, or creditor of 
the corporation. 

See Penal Code, §§ 566, 669. 

§ 378. 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 members, alphabetically arranged; instal- 
ments paid or unpaid; assessments levied and paid or un- 
paid; a statement of every alienation, sale, or transfer of 
stock made, the date thereof, and by and to whom ; and all 
Buch 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 in- 
spection of any stockholder, member, or creditor. 

See Penal Code, §§ 565, 669. 

See Act of April 1, 1876, Concerning Statements by Banks and ] 
||«pe&dlz,p.454. 

\ 

Digitized by VjOOQIC 



K 882-384 COBPORATB POWBB8. 



ARTICLE ni. 

BXAHINATION OF GOHPO&ATION8, BTO. 

BlonoR 882. Examination into afEairs of coipoiatioii, how made by oA 
cers of State. 
888. Examination made bj the legislature 
88i. Chapter and article may be repealed 

§ 3S2« The attorney general or district attomej, whenerer 
and as often as required bj the governor, must examine into 
the affairs and condition of any corporation in this State, and 
report sach examination, in wnting, together with a detailed 
statement of facts, to the governor, who mast lay the same 
before the legislature; and for that purpose the attorney 
general or district attorney may administer all necessary oaths 
to the directors and officers of any corporation, and may ex- 
amine them on oath in relation to the affairs and condition 
';hereof, and may examine the books, papers, and documents 
belonging to such corpoitition, or appertaining to its aflain! 
and condition. 

See Penal Code, § 665. 

§ 383. The legislature, or either branch thereof, may ex- 
imine into the affairs and condition of any corporation in this 
State at all times ; and, for that purpose, any committee ap- 
pointed by the legislature, or either branch thereof, may ad- 
minister all necessary oaths to the directors, officers, and stock- 
holders of such corporation, and may examine them on oath 
*n relation to the affairs and condition thereof; and may ex- 
amine the safes, books, papers, and documents belonging to 
/uch corporation, or pertaining to its affaire and condition, and 
compel the production of all keys, books, papers, and doca- 
ments by summary process, to be issued on application to any 
court 01 record or any judge thereof, under such rules and 
regulations as the court may prescribe. 

8ee Penal Code, $ 566. 

§ 384. 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 amend 
lUent or repeal does not, nor does the dissolution of any such cor> 
poration, take away or impair any remedy given against ant 
inch corporation, its stockholders, or officers, for any liability 
vhich has been previously incurred. 



n OOBFOBATB P0WBB8. f f 888-892 

ARTICLE IV. 

fVDGlIBKT AOAINBT AND 8ALB OF COBPOXATB PKOPSmTT 

MonoH 888. FnnehiM may be treated as property, and told «Dde»* eat 
cution. 

889. Purchaser to traoBaot businefls of corporation. 

890. Purchaser may reooTer penaltlee, &e. 

891. Corporation to retain powers after sale. 

892. Redemption of franchise. 

898. When proceedings under execution may be had. 

§ 388. For the satisfaction of any judgment against a ooi 
^* poration authorized to receive tolls, its franchise and all Ui% 

N rights and privileges thereof may be levied upon and sold un- 
der execution, in the same manner and with like effect as any 
rs^ other property. [Ineffect July 1, 1874.] 
•Sw Code CiT. Proc. § 688. 

§ 389. The purchaser at the sale must receive a certificf,te 
of purchase of tne franchise, and be immediately let into the 
possession of all property necessary for the exercise of the 
powers and the receipt of the proceeds thereof, and must 
thereafter conduct the business of such corporation, with all 
its powers and privileges, and subject to all its liabilities 
until the redemption of the same, as hereinafter provided. 

§ 890. The purchaser or his assignee is entitled to re- 
coyer any penalties imposed by law and recoverable by the 
corporation for an injury to the franchise or property thereof, 
or tor any damages or other cause, occurring during the time 
he holds the same, and may use the name of the corporation 
for the purpose of any action necessary to recover the same. 
A recovery lor damages or any penalties thus had is a har to 
any subsequent action by or on behalf of the corporation for 
the same. 

§ 391. The corporation whose franchise is sold, as in this 
article provided, in all other respects retains the same powem, 
bound to the discharge of the same duties, and is liable to 
(he same penalties and forfeitures, as before such sale. 

§ 892. The corporation may, at any time within one year 
ifter such sale, redeem the franchise, by paying or tendering 
4> Ibe purdhaeer thereof the sam paid therefbr, with twi pel 



§§ 893-401 BXTBNSION, BTO., OF OOBPORATIONB. 79 

cent, interest thereon, bnt without any allowance for the toL 
which he may in the mean time have received ; and npon Bach 
payment or tender the franchise and all the rights and pnT* 
lieges thereof revert and belong to the corporation, as tt hq 
lacn sale had been made. 

§ 393. The sale of an^ franchise nnder execution must h\ 
made in the county in which the corporation has its prindpa 
place of business, or in which the property, or some poruoo 
thereof, upon which the taxes are paid, is situated. [In effect 
July 1, 1874.] 



CHAPTER IV. 

BXTBNSION AND DISSOLUTION OF GOBPOBA- 
TIONS. 

BlonOH 899. Proceedings to disincorporate. 

400. On dissolution, directors to be trustees for creditors. 

401. Any corporation may extend its corporate existence, how. 

402. How corporations may continue their existence. (Bt 

pealed.) 

403. Title I. to apply to all corporations with certain excep- 

tions. 

§ 899. The dissolution of corporations is provided for : 

1. If involuntary — in Chapter V. of Title X., Part II., ai 
the Code of Civil Procedure. [§§ 802-810] 

2. If voluntary — in Title VI., Part HI., of the Code of 
Civil Procedure. [§§ 1227-1233.] 

§ 400. Unless other persons are appointed by the court, the 
directors or managers or the affairs of such corporation at the 
time of its dissolution are trustees of the creditors and stock 
holders or members of the corporation dissolved, and have full 
power to settle the affairs of the corporation. 

§ 401. Every corporation formed for a period less than 
fifty years may, at any time prior to the expiration of thf 
term of its corporate existence, extend such term to a period 
not exceeding fifty years from its formation. Such extension 
may be made at any meeting of the stockholders or memben^ 
tailed bv the directors expressly for considering the snhject. 
i voted 1l>y stockholders representing two thirds of the capita 



'S INBUBiLKCB COHFOBATION8. §§ 402^414 

Stock ; or by two thirds of the xnemberB ; or may be mad« 
upon the written assent of that number of stockholders or 
members. A certificate of the proceedings of the meeting 
upon such Tote, or upon such assent, shall be signed by the 
chairman and secretary of the meeting and a majority of the 
directors, and be filed in the office of the county clerk, where 
the original articles of incorporation were filed, and a certified 
copy thereof in the office of the secretary of state, and there* 
upon the term of the corporation shall be extended for th« 
specified period. [In effect July 1, 1874. J 

§ 402 of said Code is repealed. [In effect July 1, 1874.] 

§ 403. The provisions of this title are applicable to eyer^ 
oorporatioii, unless such corporation is excepted from its opera- 
tion, or unless a special provision is made in relation thereto 
inconsistent with some provision in this title, in which case the 
special provision prevails. 

See Act of April 1, 1872, Requiring Foreign Corporations to designate 
Resident upon whom Process may be served, Appendix, p. 473. 



TITLE n. 

INSURANCE CORPORATIONS. 

Chaftkr I. General Pboyisioks, §§ 414-419. 

n. Fire and Marine Insurance OoRPORAnomii 

§§ 424-430. 
m. Mutual Life, Health, and Accident Insur- 
ance Corporations, §§ 437-458. 



CHAPTER I. 

GENEBAIi PROVISIONS. 

teonoN 414. Subscriptions to capital stock opened, and how colleet^d 
416- Purchase and conyeyance of real estate. 

416. Policies, how issued and by whom signed. 

417. Dividends, of what^ %nd when declared. 

418. Directors liable for loss on insurance in certain cases. 

419. Capital to be at least two hundred thousand dollars. 

420. Exception, capital of one hundred thousand dollars. 

J 414, After the secretary of state issues the certificate of 
^corporation, as provided in Article I., Chapter I., Title I., of 



SI 416-417 IN8U1U.N0B OOBFOBXTIOSrS. 74 

this part, the directors named in the artides of inoorporatioii 
muBt proceed in the manner specified, or in their hj-laws, or 
if none, then in such manner as they may by order adopt, to 
open books of subscription to the capital stock then unsub- 
scribed, 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 IL of Title I. provided. 

§ 416« No insurance corporation must purchase, hold, o* 
convey real estate, except as nereinafter set forth, to wit : 

1. Such as is requisite for its accommodation in the conven 
lent transaction of its business, not exceeding in value one 
hundred and fifty thousand dollars ; 

2. Such as is conveyed to it, or to any person for it, by way 
of mortgage or in trust, or otherwise, to secure or provide for 
the payment of loans previously contracted, or for moneys 
due; 

3. Such as is purchased at sales upon deeds of tnut or 
judgments obtained or made for such loans or debts ; 

4. Such as is conveyed to it in satisfaction of debts previ- 
ously contracted in the course of its dealings. 

Ail such real estate so acquired, which is not requisite for 
the accommodation of such corporation in the transaction of 
its business, must be sold and disposed of within five years 
after such corporation acquired title to the same. No such 
real estate must be held for a longer period than five vears, 
unless the corporation first procures a certificate from the in- 
surance commissioner that the interest of the corporation will 
sufifer materially by a forced sale of such real estate, in which 
event the time for the sale may be extended to such time as 
the insurance commissioner directs in the certificate. 

§ 416. All policies made by insurance 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 of the 
corporation. All such policies are as binding and obligatory 
upon the corporation as if executed over the corporate seal. 

§ 417. The directors of every insurance corporation, at 
fluch times as their by-laws provide, must make, declare, and 

Ey to the stockholders dividends of so much of the net prof* 
of the corporate business and interest on capital invested 
VI to them appears advisable ; but the moneys received 9n4 



75 INBUBANCB COBFOBATION8. §§ 418-420 

notes taken for preniinm on risks which are undetermined and 
outstanding at Aie time of making the dividend must not be 
treated as profits, nor divided, except as provided in Chaptez 
n. of this title. 

§ 418. If any insurance corporation is under liabilities for 
losses to an amount equal to its capital stock, and the presi- 
dent or directors, after knowing the same, make any new or 
farther insurance, the estates of all who make such insurance, 
or assent thereto, are severally and jointly liable for the 
amount of any loss wluch takes place under such insurance. 

§ 419. Every company, corporation, or association here- 
after formed or organized under the laws of this State for the 
transaction of business in fire, marine, inland navigation, or 
life insurance, must have a subscribed capital stock equal to 
at least two hundred thousand dollars, twenty-five per cent, of 
which must be paid in previous to the issuance of any policy, 
and the residue within twelve months from the day or filing 
the certificate of incorporation. No person, corporation, or 
association organized or formed under the laws of any other 
State or country, as a stock company, must transact any such 
insurance business in this State, unless such person, corpora- 
tion, or association has a paid-up capital stock equal to at least 
two hundred thousand dollars in available cash assets, over 
and above all liabilities for losses reported, expenses, taxes, 
and reinsurance of all outstanding risks, as provided in sec- 
tion six hundred and two of the Political Code of this State. 
Nor must any person, corporation, or association, organized or 
formed under the laws of any other State or country as a mut- 
ual insurance company, transact any such insurance business 
in this State, unless such person, corporation, or association 
possesses available cash assets equal to at least two hundred 
thousand dollars, over and above all liabilities for losses re- 
ported, expenses, taxes, and reinsurance of all outstanding 
risks, as provided in said section six hundred and two of the 
Political Code of this State. [In effect April 1, 1878.] 

§ 420. Every company, corpomtion, or association here- 
after formed or organized under the laws of this State for the 
O'ansaction of business in any kind of insurance not enumer 
Ited in section four hundred and nineteen of the Civil Code 
gaust have a subscribed capital stock equal to at least one 
lundred thousand*dolIars, whicn must be paid in at the timet 



§§ 424-426 IK8UBANCE GOBFOBATION8. 76 

and in the manner prescribed for the payment of the capital 
itock of a corporation organized under section four hundred 
and nineteen of said Civil Code. No company, corporation, 
or association, formed or organized under the laws of anj 
other State or country as a stock company, must transact anj 
Buch insurance business in this State without a paid-up capital 
stock of not less than one hundred thousand dolLirs in avail- 
able cash assets, over and above all liabilities for losses re- 
ported, expenses, taxes, and reinsurance of^ all outstanding 
risks, as. provided in section six hundred and two of the Tolit- 
ical Code of this State. Nor must any company, corporation, 
!>r association, formed or organized under the laws of any 
other State or country as a mutual insurance company, trans- 
act any such insurance business in this State unless snch 
company, corporation, or association possesses available cash 
assets equal to at least one hundred thousand dollars over and 
above all liabilities for losses reported, expenses, taxes, and 
reinsurance of all outstanding risks, as provided in said sec- 
tion six hundred and two of the Political Code of this State 
[In effect AprU 1, 1878.] 



CHAPTER n. 
FIBB AND MARINE INSURANCE CORPORATIONS. 

BionoN 424. Payment of subscriptions. Capital to be all paid in twelfv 
months. 
426. Certificate of capital stock paid up to oe flled, and whea 

426. Property which may be insured. 

427. Funds may be invested, how. 

428. Rate of risk. 

429. Amounts to be reserved before making dividends. 

480. Reservation by companies with less than $200,000 oapitai 
431. Amounts to be reserved by life insurance companies. 

§ 424. The entire capital stock of every fire or narine is. 
Rirance corporation must be paid np in cash within twelTe 
months from the filing of the articles of incorporation, and no 
Dolicj of insurance must be issued or risk taken until twenty 
lye per cent, of the whole capital stock is paid np. 

§ 425. The president and a majority of the directors must 
within thirty days after the payment of the twenty-five pet 
ent. of the capital stock, and also within thirty days after thf 



77 1M8UBAKCB COKPORATIONS. $§ 426^427 

payment of the last instalment or assessment of the capital 
stock limited and fixed, prepare, subscribe, and swear to a cer- 
tificate setting forth the amount of the fixed capital and the 
amount thereof paid up at the times respectively in this sec- 
tion named, and file the same in the office of the county clerk 
of the county where the principal place of business of the cor- 
poration is located, and a duplicate thereof, similarly exe- 
rnted, with the insurance conmussioner. 



§ 426. Every corporation formed for fire or marine i 
ance, or both, may make insurance on all insurable intereita 
within the scope of its articles of inoorporation, and may 
rause itself to be reinsured. 

§ 427. Corporations organized subsequent to April first, 

eighteen hundred and seventy-eight, under the laws of this 

State, for the transaction of business in any kind of insurance, 

rz may invest their capital and accumulations in the following 

•| named securities : 

it 1. In the purchase of or loans upon interest-bearing bonds 
§• of the United States Government. 

A 2. In the purchase of or loans upon interest-bearing bonds 
of any of the States of the United States, not in default for 
. interest on such bonds. 

^^ 3. In the purchase of or loans upon interest-bearing bonds 

\^ of any of the counties and incorporated cities and towns of the 

^ States of California and Oregon, not in default of interest on 

I such bonds. 
5v 4. In loans upon unincumbered real property, worth at least 
^Av one hundred per cent, more than the amount loaned ; or upon 
^^v merchandise or cereals in warehouse, but in no instance shall 
^^ such loan be made in excess of seventy-five per cent, of the 
^ security taken. 

5. Corporations engaged in the business of insuring titles 
to real estate may, after the investment of one hundred thou- 
sand (100,000) dollars in the manner provided for in subdi- 
visions one, two, three, and four of this section, invest an 
amount not exceeding fifty per cent, of their subscribed capi- 
tal stock in the preparation or purchase of the materials or 
plant necessary to enable them to engage in such 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 corporations. 

6. Corporations organized for and engaged in the business 
of fire and marine insurance may, after the investment of 



§§ 428-480 INSURANCB CORPORATIONS. 77a 

two hundred thousand (200,000) dollars, in the manner pro- 
vided in subdiyisions one, two, three, and four of this section, 
inrest the balance of their capital, and any accumulations, in 
interest-bearing first mortgage bonds of anjr corporations (ex- 
cept mining companies), not in default of interest, organized 
and carrying on business under the laws of anj State of the 
United States ; provided, that a two-thirds vote of all the di- . 
rectors of such corporations shall approve such investment. 
It shall be the duty of the officers of such corporation to re- 
port quarterly, on the first days of January, April, July, and 
October of each year, to the Insurance Commissioner, a list 
of such invesbments so made by them ; and the Insurance 
Commissioner may, if such investments, or any of them, seem 
injudicious to him, require the sale of the same. But no in- 
vestment in the secunties named in subdivisions one, two, 
three, and six of this section, must be made in an amount ex- 
ceeding the market value of such securities at the date of such 
investment. [In effect March 5, 1887.] 

§ 428. Fire and marine insurance corporations must never 
take, on any one risk, whether it is a marme insurance or an 
insurance against fire, a sum exceeding one tenth part of 
their capital actuall3r paid in, and intact at the time of taking 
such risk, without reinsuring the excess above one tenth. [In 
efifect July J, 1874.] 

§ 429. No corporation formed subsequent to April first, 
eighteen hundred and seventy-eight, under the^ laws of this 
State, and transacting fire, marine, inland navigation insur- 
ance business, or insurance provided for by section four hun- 
dred and twenty (420) of this Code, except insurance of the 
title to real property, must make any dividends except from 
profits remaining on hand after retaining unimpaired : 

1. The entire subscribed capital stock. 

2. All the premiums received or receivable on outstanding 
marine or inland risks, except marine time risks. 

3. A fund equal to one half of the amount of all premiums 
on all other risks not terminated at the time of making such 
dividend. 

4. A sum sufficient to pay all losses reported or in course of 
settlement, and all liabilities for expenses and taxes. [In 
efi'ect March 5, 1887.] 

§ 430. No fire or marine insurance corporation, with a 
subscribed capital of less than two hundred thousand dollars, 
must declare any dividends, except from profits remaining ou 
hand after reserving : , ,^,^3, .^ Google 



nb INSURAKCE CORPORATIONS. §§ 481-482 

1. A sum necessary to form, with the subscribed capital 
Btock, 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 lisks not terminated at the time ol 
making such dividend ; 

4. A sum sufficient to pay all losset reported or in course of 
settlement, and all liabilities for expenses and taxes. 

§ 431. 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 pajr all losses reported or in course 
(^ of settlement, and all liabilities for expenses and taxes ; 

3. A sum sufficient to reinsure all outstanding policies, u 
asceitained and determined upon the basis of the Americas 
Experience Table of Mortality, and interest at the rate o 
four and one half per cent, per annum. [In effect April I 
1878,] 

§ 432. Corporations transacting business in insuring titles 
to real estate, shall annually set apart a sum equal to twenty- 
five per cent, of their premiums collected during the year, 
which sum shall be allowed to accumulate until a fund shall 
_ have been created amounting to ten per cent, of the sub- 
-T^ scribed capital stock. Such fund shall be maintained as a 
-~ further security to policy holders, and shall be known as the 
£ Surplus Fund; and if at anytime such fund shall be im- 
^ paired by reason of a loss, the amount by which it may be 
i^ impaired shall be restored in the manner hereinabove pro- 
vided for its accumulation. The reporting of a loss shall be 
deemed an impairment of such fund for the purposes of this 
section. Such corporation must not make any dividends ex- 
cept from profits remaining on hand after retaining unim- 
paired : 

1 . The entire subscribed capital stock. 
^ 2. The amount owing to the Surplus Fund, under the pro- 
visions of this section. 

3. A sum sufficient to pay all losses reported, or in course 
of settlement, which shall be in excess of the Surplus Fund, 
and all liabilities for expenses and taxes. [In effect March 5, 
1887.] 

Sec. 4. This Act shall take effect from and after its pas- 
sage. 



k§ 487-488 INSUBANGB COBPORATIOHS ^8 



CHAPTER m. 

MUTUAL LIFE, HEALTH, AND ACCIDENT IN- 
SURANCE CORPORATIONS. 

toonov 487. Capital stock. Guarantee fund. 

488 Of what guarantee fund shall oonsiBt. 
489. What constitutes, and deficiency in fixed capital. 
440. Declaration of fixed capital to be filed. 
441 Guarantee notes and interest, how disposed of • 
442. Insured to be entitled to vote, when. 
448. May invest in what securities. 
444. Number of directors may be altered, how. 
446. Limitations to the holding of stock and in other pariicalaif 
may be provided for in by-laws. 

446. Premiums, how payable. 

447. Valuation of policies outstanding, when ; how estimated. 

448. No stamp required on accident insurance contract. 

449. Valuation of policies, retaliatory provisions. 
4&0. Policy to contain what evidence. 

451. Fraternal societies exempt from insurance laws. 

452. Policies continued in force 

§ 487. Every corporation formed for the purpose of mut 
ual insurance on the lives or health of persons, or against 
accidents to persons for life or any fixed period of time, or to 
purchase and sell annuities, must have a capital stock of not 
less than one hundred thousand doUara. It must not make 
any insurance upon any risk or transact any other business af 
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 " Guar- 
antee Fund," of not less than two hundred and fifty thousand 
dollars, as is hereinafter provided. If niore than the requisite 
amount is subscribed, the stock must be distributed pro rata 
among the subscribers. Any subscription may be rejected by 
the b^rd of directors or the committee thereof, either as ml 
the whole or any part thereof, and must be, so far as rejected, 
without effect. 

§ 438. The guarantee fund mentioned in the preceding 
section must consist of the promissory notes of solvent par* 
ties, approved by the board of directors and by each other, 
payable to the corporation or its order, and at such times, in 
such modes, and In such sums, with or without interest, and 
conformable in all other respects to such requirements as the 
board of directors prescribe; but the amount of the notoi 
i^iven b^ any one person must not exceed in the whole the 
turn of^ fire thousand dollars, exclusive of interest Snck 



79 IN8UBANCB CORrOB /lOMII. §§ 439-440 

ftotes must be payable absolutely and at the option of the cot 
poration ; they must be negotiable, and may be indoniod and 
transferred, or converted into cash, or otherwise dealt with by 
the corporation, at its discretion, without reference to any con- 
tingency of losses or expenses. Such notes, or the proceedi 
thereof, must remain with the corporation as a fund for the 
better security of persons dealing with it, and constitute the 
assets of the corporation, liable for all its dibts, obligations^ 
Mid indebtedness next after its assets from premiums and 
other sources, exclusive of capital stock, until the net earn- 
ings, over and above its expenses, losses, and liabilities, shall 
have accumulated in cas*!!, or securities in which the net earn- 
ings have been invested, to a sum which, with the capital stock, 
is equal to the ag(rren:ate of the original amounts of the guar- 
antee find and of the capital stock. 

§ 439. The sum accumulated as provided in the preceding 
section, together with the capital stock, shall become and re- 
main the fixed capital of the corporation, not subject to divis- 
ion among the stockholders or parties dealing with it, or to 
be expended in any manner otherwise than may be required 
in payment of the corporation's debts and actual expenses. 
nntU the business of the corporation is closed, its debts paid« 
and its outstanding policies and obligations of every kind can 
celled or provided for ; and if from any cause a deficiency at 
any time occurs in such fixed capital, no further division of 
profits must take place until such deficiency has been made 
up. 

§ 440. 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 act- 
uary, 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 proijerty composing the same, with 
the nature and amount of each kind, which must be filed with 
the original articles of incorporation, and a copy, certified by 
the county clerk, must be published for at least four successive 
weeks, in a newspaper published in the county where the 
principal business of the 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 con 
\rol of the corporation, and not affected by any lieu thereou, 
or claim of that nature, rfust bo surrendered by it to the mak- 
9^ thereof, respectively, or other parti<s3 entitled to receiye 
Uie same. 



S§ 441-444 INSUBANCE CORFOBATIONS. M 

§ 441. Until the guarantee fund is discharged from its 
oblijrations, as provided in the preceding section, no note must 
be withdrawn from the fund, unless another note of equal sol- 
vency is substituted therefor, with the approval of the board 
of directors. The corporation must allow a commission, not 
exceeding five per cent, per annum, on all such guarantee 
notes while outstanding, and also interest on all moneys paivl 
on such notes by the parties liable thereon, at the rate q^ 
twelve per cent, per annum, payable half yearly until repaid 
by the corporation, unless the current rate of interest is differ- 
ent from this amount, in which case the rate payable may, 
from time to time, at intervals of not less than one year, be 
increased or reduced by the board of directors, so as to con- 
form to the current rate. [In effect July 1, 1874.] 

§ 442. After the filing of the declaration of the fixed cap- 
ital, 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. 

§ 443. The number of directors specified in the articles of 
incorporation may be altered from time to time during the ex- 
istence of the corporation by resolution, at the annual meeting 
»f a majority of those entitled to vote at the election of di- 
rectors, but the number must never be reduced below five. 

§ 444. Life, health, and accident insurance corporations 
may invest their capital stock as follows : 

1. In loans upon unincumbered and improved real property 
within the State of California, which shall be worth at the 
time of the investment at least forty per cent, more than th« 
sum loaned ; 

2. In the purchase of or loans upon interest-bearing Iwnds, 
and other securities of the United States and of the ^kate of 
California ; 

3. In the purchase of or loans upon interest-bearing bonds 
of any of the other States of the Union, or of any county, oi 
incorporated city, or city and county in the State of Califor- 
pia; 

4. In the purchase of loans upon any stocks of corporations 
formed under the laws of this State, except of raining corpo 
rations, which shall have, at the flme of the investment, a 
value, in the city and county of San Fmncisco, of not lesa 

"an sixty per cent, of their par value, and shall be rated b§ 



Bl iirsnRANCB CORPORATIONS. §§ 446*447 

first-class securities ; bnt no loans shall be made on any se- 
eurities specified in subdivisions three and foui of this sec- 
tion, in any amount beyond sixty per cent, of the market 
value of the securities, nor shalf any loan l)e made on the 
stock of the corporation, or notes or other obligations of its 
corporators. [In effect July I, 1874.] 

§ 445. The corporation may, by its by-laws, limit the 
number of shares which may be held by any one })erson, an 1 
make such other provisions for the protection of the stock 
holders aud the better security of those dealing with it as to 
a majority of the stockholders may seem proper, not incoii« 
flistent with the provisions of this title or part. 

§ 446. All premiums must be payable wholly in cash, or 
one half or a greater proportion in cash, and the remainder 
in promissory notes bearing interest, as may be provided for 
by the by-laws. Agreements and policies oi insurance made 
by the corporation may be upon the basis of full or partial 
participation in the profits, or without any participation 
^Jierein, as may be provided by the by-laws and agreed be- 
tween the parties. 

§ 447. Every life insurance cor])oration organized under 
the laws of this State must, on or before the first day of 
February of each year, furnish the insurance commissioner 
the necessary data for detenninin;; the valuation of all its 
policies outstanding on the thirty -first day of December then 
next preceding. And every life insurance company organized 
under the laws of any other State or country, and doing busi- 
ness in this State, must, upon the written requisition of the 
commissioner, furnish him, at such time as he may designate, 
the requisite data for determining the valuation of all of its 
policies then outstanding. Such valuaticms must be based 
upon the rate of mortality csialilished by the American ex- 
perience life table and interest at four and one half per cent, 
per annum; prondod^ that from and after the thirty-first day 
of December, A. D. one thousand eijrht hundred and ninety- 
one, such valuations must be based upon the rate of mortality 
established by the combined expcrieuce or actuaries' table of 
mortality, with interest at the rate of four per cent, per an- 
num. When the laws of any other State or Territory require 
of a life insurance company organized under the laws of this 
State a valuation of its outstanding policies by any standard 
of valuation different from that named in this section, the In 
snrance Commissioner is hereby authoriz-d to make such valu- 
ation for use in such other State or Territory, and to issue his 



§§ 448-450 INSURANCE CORPORATIONS. 82 

certificate in accordance therewith. For the purpose of mak- 
ing the valuations, the Insurance Commissioner is authorized 
to employ a competent actuary, whose compensation for such 
valuntions shall be three c6iits for each thousand dollars of 
insurance ; to be paid by the respective companies whose poli- 
cies are thus valued. [Approved February 25, 1889.] 

§ 448. No stamp is required nor stamp duty exacted on 
any contract of insurance, when such contract insures against 
accident which may result in injury or death. 

■ See Act of March 28, 137 1, Relative to Mutual Beneficial and Relief 

^ Associations, Appendix, p. 4S1. 

§ 449. When the certificate oftne insurance coramissionef 
of this State, of the valuation of the policies of a life insurance 
company, as provided in section four hundred and forty -seven 
of the Civil Code of this State, issued to any company organized 
under the laws of this State, shall not be accepted by the in 
Burance authorities of any other State, in lieu of a valuation 
of the same, by the insurance officer of such other State, ther 
every company orjjanized under the laws of such other State 
doing business in this State, shall be required to have a sepa- 
rate valuation of its policies made under the authority of the 
insurance commissioner of this State, as provided in sectioD 
four hundred and forty-seven of the Civil Code. [In efiidd 
July 1, 1874.] 

§ 450. Every contract or policy of insurance hereafter 
made by any person or corporation organized under the laws 
of this State, or under those of any other State or country, 
with and upon the life of a resident of this State, and deliv- 
ered within this State, shall contain, unless specifically con- 
tracted between the insurer and the insured for tontine insur- 
ance, or for other term or paid-up insurance, a stipulation 
that when, after three full annual premiums shall have been 
paid on such policy, it shall cease or become void solely by 
the non-payment of any premium when due, its entire net re- 
serve, by the American Ex])erience Mortality, and interest at 
four and one-half per cent, yearly, less any indebtedness to 
the company on such policy, shall be applied by such com- 
pany as a sinf::le premium, at such company's published rates 
in force at the date of orijj^inal policy, but at the age of the 
insured at time of lapse, either to the purchase of non-partici- 
patinu^ terra insurance for the full amount insured by such 
policy, or upon the written application by the owner of such 
|H)licv^ and the surrender thereof to such company withiq 
three months from such non-payment of premium, to the par* 



fi 



82a INSURANCE CORPORATIONS. §§ 461-462 

chase of a non-participatino^ paid-up policy, payable at the 
time the oripnal policy would be payable if continued in 
force ; both kinds of insurance to be subject to the same con- 
ditions, except as to payment of premiums, as those of the 
WTjrinal poh'cy. It may be provided, however, in such stipu- 
)ation, that no part of such term insurance shall be due or 
payable, unless satisfactory proofs of death be furnished to 
the insuring company within one year after death, and thnt 
If death sliall occur within three years after such non payineni 
Df premium, and duriny; such term of insurance, there shal 
be deducted from the amrant payable the sum of all the pre- 
miums that would have become due on the original policy if 
It had continued in force. If the reserve on endowment pol- 
ities be more than enouo^h to purchrtse temporary insurance, 
as aforesaid, to the end of the endowment term, the excess 
shall he applied to the purchase of pure endowment insurance, 

►nyable at the end of the term, if the insured be then living. 

f any life insurance corporacion or company shall deliver to 
any jerson in this State a policy of insui-ance upon the life of 
any person residing in this State, not in conformity with the 
provisions of this section, the right of such corporation or 
company to transact business in this State shall thereupon 
and thereby cease and terminate, and the Insurance Commis- 
sioner shall immediately revoke the certificate of such corpo- 
ration or company authorizing it to do business in this State, 
and publish such revocation, daily, for the period of two weeks, 
in two daily newspapers, one published in the City of San 
Francisco, and the other in the City of Sacramento. 
[Approved April 26, 1880.] 

§ 461. All associations or secret orders, and other benevo- 
lent or fraternal cooperative societies, incorporated or organ- 
ized for the purpose of mutual protection and relief of its 
members, and for the payment of stipulated sums of money to 
its members, or to the family of deceased members, and not 
for profit, are declared not to be insurance companies in the 
sense and meaning of the insurance laws of this State, and are 
exempt from the provisions of all existing insurance laws of 
this State. [Approved March 23, 1885.] 

§ 462. Repealed April 26, 1880. 

Digitized by VjOOQIC 



MANUSCRIPT NOTES. 



82 5 



,y Google 



18 KAIJ.ROAD COKPOBATION8. §§464-466 

TITLE ITI. 

RAILROAD CORPORATIONS. 

Cbattbr I. Officers ant> Corporate Stook, §§ 454-459. 
II. Enum KRATioN of Powers, §§465-478. 
III. Business, how coNDUCrED, §§ 479-491. 



CHAPTER L 
OFFICERS AND CORPORATE STOCK. 

taOTioir 454. Directors to be elected, when. 

455. Additional prorisions in assessment and transfer of stock. 

456. Corporations may borrow money and issue bonds. Limit»i 

tion of amount. 

457. To provide a sinkin);^ fund to pay bonds. 

458. Capital stock to be fixed. 

459. Certificate of payment ol fixed capital stock. 

§ 464. Directors of railroad corporations may be elected 
at a meeting of the stockholders other than the annual meet- 
ing, as a majority of the fixed capital stock may determine, 
or as the by-laws may provide ; notice thereof to be given aa 
provided for notices' of meetings to adopt by-laws in Article 
II., Chapter I., Title I., of this part. 

§ 455. No stock in any railroad corporation is transferable 
ixntil all the previous calls or instalments thereon have been 
fnUy paid in ; nor is any such transfer valid, except as between 
the parties thereto, unless at least twenty per cent, has been 
paid thereon and certificates issued therefor, and the transfer 
approved by the board of directors. 

466 

cc § 456. Railroad corporations may borrow, on the credit of 

** ®^ icifi corporation and under such reg-ilations and restrictions ai 
i^ X^the directors thereof, by unanimou? concurrence, may impose, 
^ •^ such sums of money as may be necessary for constructing and 
I iV completing their railroad, and may issue and dispose of bondi 
■t* ^or promissory notes therefor in denominations of not lesi 
VSy^ than five hundred dollars, and at a rate of interest not exceed 
0W *N vig ten per cent, per annum ; and may also issue bonds oi 
NTxfromissory notes, of the same denomination and rate of in- 



S§ 457-459 RAILROAD CORPORATIONS. 84 

terest, in payment of any debts or contracts for constructing 
and completing their road, with its equipments and all else 
relative thereto, and for the purchase of railroads and other 
property within the purposes 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 pa/- 
ment of such bonds or notes by deed of trust of their corpo 
rate proj)erty and franchises. Any person or corporatioo 
formed under the laws of this State or of any other State 
within the United States, that the directors of the railroad 
corporation may by unanimous concurrence select, may }m 
tou>tee8 in such deed of trust. (In effect April 15, IStoO.J 
Penal Code, § 566. 

§ 457. The directors must provide a sinking fund, to be 
fpecially 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. 

Penal Code, §§ 666-7 

§ 458. When, at any time after filing the articles of inoor- 
poration, it is ascertained that the capital stock therein set out 
IS either more or less than actually required for constructing, 
equipping, operating, and maintaining the road, by a two- 
\hird vote of the stockholders the capital stock must be fixed, 
wid a certificate thereof, and of the proceedings had to fix the 
same, must be made out and filed in the otlice of the secretary 
of state. 

§ 459. Within thirty days after the payment of the last 
instalment of the fixed capital stock of any railroad corpora- 
;ion organized under this title and part, the president and se(& 
retary, and a majority of the directors thereof, must make, sub- 
■cribe, and file in the oflSce of the secretary of state a certificate 
stating the amount of the fixed capital stock, and that th4 
whole thereof has been paid in. The certificate muit be veri 
Ged by the affidavit of the president and secretary. 



•5 BAILROAD COKPOBATIONt. I 466 

CHAPTER II. 
ENUMERATION OF POW8B8. 

BkbioB 166 £numeration of powers : 

1. To survey road ; 

2. May accept real estate ; 
8. May acquire real estate ; 

4. Lay out road, bow wide ; 

5. Where may construct road ; 

6. May crocs or connect roads ; 

7. May purchase hind, timber, stone, graT^l, Ae. | 

8. Carry persons and freight ; 

9. Erect nt^cesfiary buHdings ; 

.10. Regulate time and freights, subject to legiaUtloo ; 
11. Regulate force and speed. 
4^. Map and profile to be filed. 

467. May change line of road. 

468. Forfeiture of franchise. 

469. Cros5iing8 and intersections. Condemnation. 

470 Mof to U8e streets, alleys, or water in cities or towns, except 

by a two-third vote of the city or town authorities. 

471 Railroads through cities not to charge fare to and from 

points therein. 

472. When crossing railroads or highways, how other lands ars 

acquired. 

473. Corporations may consolidate. Publication of notice. Cop/ 

to be filed. 

474. State lands granted for use of corporations 

475. Grant not to embrace town lots. 

476. Wood, stone, and earth may be taken from State lands. 

477. Land.-* to revert to State, when. 

478. Selections made, how proved and certified to. 

§ 465. Every railroad corporation has power : 
1. To cause sucli examination and surA'eys to be made ag 
may be necessary to the selection of the most advantageous 
route for the railroad ; and for such purposes their officers, 
agents, and employees may enter upon the lands or waters of 
k\ny person, subject to liability for all damages which they do 
L^ thereto; 

V- 2. To receive, hold, take, and convey, by deed or otherwise, 
^ kf» a natural person, such voluntary grants and donations of 
. real estate and other property which maj be made to it to aid 
^ and encourage the construction, maintenance, and accommo- 
^ iation of such railroad ; 

3. To purchase, or by voluntary grants or donations to r» 
cetve, enter, take possession of, hold, «.nd use all such real ea 
late and other property as may be absolutely necessary for tbt 



{466 KAILROAD COBPORATIONS. M 

construction and maintenance of such railroad, aud for aU 
stations, depots, and other purposes necessary to successfully 
work and conduct the business of tlie road ; 

4. To lay out its road, not exceedinj;^ nine rods wide, and 
to construct and maintain the same, with a single or doable 
track, and with such appendages and adjuncts as may be nec- 
essary for the convenient use of the same ; 

6. To construct their road across, along, or upon any 
atream of water, watercourse, roadstead, bay, navigable 
•tieam, street, avenue, or highway, or across any railway, 
canal, ditch, or flume which the route of its road intersects, 
crosses, or rims along, in such manner as to afford security for 
life and ])roprrty ; but the coij)oration shall restore the stream 
or watercourse, ro id, street, avenue, hiu:liway, raihx)ad, canal, 
dilch, Oi* flume thus intersected to its former state of useful- 
noss, as near as may be, or so that the railroad shall not un- 
necessarily 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 rail- 
road corporation, wirh the necessary turnouts, sidings, and 
switches, aud 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 u])on the amount of 
compensation to be made therefor, or the points or the man- 
.Tier of such crossings, intersections, and connections, the same 
ehall be ascertained aud determined as is provided in Title 
VIL, Part III., Code of Civil Procedure. [§§ 1237-I2vi3.] 

7 To purchase lands, timber, stone, gravel, or other ma- 
erials, to be used iu the construction aud maintenance of its 
load, aud all necessary appendages and adjuncts, or acquire 
them in the manner provided in Title Vll., Part III., Code ol 
Civil Procedure, Cor the coiulemnation of lauds ; and to change 
the lino of its road, in whole or in part, whenever a majority 
>f the directors so determine, as is provided hereinafter ; but 
no such change must vary the general route of such road, as 
contemplated in its articles of incorporation ; 

8. To carry persons and property on their railroad, and re^ 
teivo ioUs or compensation therefor ; 

9. To erect and maintain all necessary and convenient 
buildings, stations, depots, fixtures, and machinery for th# 



B7 RAILKOAD CORPORATIONS. §§ 466'-468 

accommodation and use of their passengers, freight, and busi 
ness; 

10. To regulate the time and manner in which passenprers 
and property shall be transported, and the tolls and compen- 
sation to 1)6 paid therefor within the limits prescribed by law, 
and subject to alteration, change, or amendment by the legia- 
Eatare at any time ; 

11. To regulate the force and speed of their locoraotiyea^ 
cars, trains, ( r other machinery used and employed on their 
road, and to establish, execute, and enforce all needful and 
proper rules and regulations for the mana;j:enient of its busi- 
ness transactions usual ai»J proper for railroad corporations. 

53 Cal. 227. 

§ 466. Every railroad corporation in this State must, 
within a reasonable time afier its road is finally located, cause 
to be made a map and profile thereof, and of the land acquired 
for the use thereof, and the boundaries of the several counties 
through which the road may run, and file the same in the 
office of the secretary of state ; and also like maps of the 
parts thereof located in different counties, and file the same in 
the office of the clerk of the county in which such parts of the 
road are, there to remain of record forever. The maps and 
profiles must be certified by the chief engineer, the acting 
president and secretary of such company, and copies of the 
same, so certified an<l filed, be kept in the r)ffice of the secre- 
tary of the corporation, subject to examination by all parties 
interested. 

§ 467. If, at any time after the location of the line of the 
railroad and the filing of the maps and profiles thereof, as 
provided in the preceding section, it ajipears that the location 
can be improved, the directors may, as provided in subdi- 
vision 7, section 465, alter or change the sanie, and cause new 
maps and profiles to be filed, showing such changes, in the 
same offices where the originals are of file, and may proceed, 
in the same manner as the original location was acquired, to 
ucnuire and take possession of such new line, and must sell or 
-ehnquish the lands owned by them for the original location, 
"ithin rive years after such change. No new location as 
:.erein provided, must be so run as to avoid any points named 
\n their articles of incorporation. 

§ 468, Every railroad coi-poration must within two yean 
%fter filing its original articles of incorporation, begin the con 



§§469-472 RAILROAD CORPORATIONS. 81 

Btruction of its road, and must every year thereafter cornpletl 
and put in full operation at least five miles of its road, until 
the same is fully comjileted ; and \i\ion its failure so to do, for 
the period of one year, its ricrht to extend its road beyond tho 
point then completed is forfeited. 

§ 469. Whenever the track of one railroad intersects of 
crosses the track of another railroad, whether the same be a 
street railroad, wholly within the limits of a city or town, op 
other railroad, the rails of either or each road must be so cut 
and adjusted as to permit the passage of the cars on each road 
with as little obstruction as possible ; and, in case the person! 
or corporations owuinj>: the railroads cannot agree as to the 
oompensation to be made for cutting and adjusting the rails, 
the condemnation of th6 right of way over the one for the use 
of the other road may be had in proceedings under Title 
VII , Part III., Code of Civil Procedui*e, and the damaffca 
assessed and the right of way granted as in other casea. }§§ 
1237-1263.] 

§ 470. No railroad corporation must use any street, alley, 
or highway, or any of the land or water, within any incorpo- 
rated city or town, unless the right to so use the same is 
granted by a two-third vote of the town or city authority from 
which the right must emanate. 

^^^71. No railroad corporation, other than street railroads, 
avautft^^jself of the provisions of the preceding section, and 
acquiriii^^^ii^^>f way from city authorities, must ever u.He 
their rosid for st^^j^rjlroad purposes, or for the purpose ol 
carrying pa8sengers7nJ>^^|onsideration, from any point to 
another in the same citv, exc^^jiich roads as are or may bo 
built on the prismoidal or othereTi?N^^jd railroad plan, and 
chartered for street railroad purposes; />7!>^<^^that such de- 
ration shall be not less than fourteen feet sibo^^sn^jj^street 
level. [Repealed AprQ 1, 1878.] ^^^^^ 

§ 472. Whenever the track of such railroad crosses a rail 
poad or highway, such railroad or highway may be carried 
under, over, or on a level with the track, as may be most ex- 
pedient; and in cases where an embankment or cutting nece» 
jitates a change in the line of such railroad or hiL'hway, the 
corporation may take such additional lands and material as ar« 
necessary for the construction of such road or highway o« 



B9 RAILROAD CORPORATIONS. §§ 473-470 

Buch new line. If such other necessary lands cannot be had 
othein^'ise, they may be condemned as provided in Title VII., 
Part III., Code of Civil Procedure; and when coniiiensation 
is made therefor, the same becomes the property of the cor- 
poration. [§§ 1237-1263.] 

§ 473. Two or more railroad corporations may consolidate 
their capital stock, debts, property, assets, and franchises in 
such manner as may be agreed upon by their respective boards 
of directors. No such amalgamation or connoliilation must 
take place without the written consent of the holders of three 
fourths in value of all the stock of each corporation ; and to 
§uch amalgamation or consolidation must in any way relieve 
such corporation or the stockholders thereof from any and all 
jnst liabilities. In case of such amalgamation or consolidation, 
dne notice of the same must be given, by advertisement for 
one month in at least one newspaper in each county, if there 
be one published therein, into or through which such roads 
run, and also for the same length of time in one paper pub- 
lished in Sacramento and in two papers published in San 
Francisco ; and when the consolidation and amalgamation is 
completed, a copy of the new articles of incorporation must be 
filed in the office of the secretary of state. 

§ 474. There is granted to every railroad corporation the 
right of way for the location, construction, and maintenance 
of their necessary works, and for every necessary adjunct 
thereto, over any swamp, overflowed, or other public lands of 
the State not otherwise disposed of or in use, not in any case 
exceeding in length or width that which is necessary for the 
construction of such works and adjuncts, or for the protection 
thereof, not in any case to exceed two hundred feet in width. 

§ 475. The grants mentioned in the preceding section do 
tot apply to public lands of the State within the corporate 
Umits of towns and cities, or within three miles thereof. 

§ 476, The right to take from any of the lands belonging 
to the State, adjacent to the works of the corporation, all 
materials, such as wood, stone, and earth, naturally appurtc- 
oant thereto, whioh may be necessary and convenient for thi 
original construction of its works and adjuncts, is granted tc 
•ach corporations. ^^ . 

uigitizedbyLjOOgle 



5§ 477-479 RAILROAD CORPORATIONS. 9fc 

§ 477. If any corporation receivinj? State lands or appar> 
ienances i hereunder is dissolved, ceases to exist, is discontiu* 
ned, 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 se- 
lected is abandoned, such selected lands revert, and the titl« 
thereto is reinvested in the State or its grantees, free from all 
such uses. 

§ 478. When any selection of the right of way, or land 
for an adjunct to the works of a railroad corporation, is made 
by any corporation, the secretary thereof must transmit to the 
BTirveyor general, comptroller of state, and recorder of the 
county in which the selected hinds 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 corporation a permit to use the same, 
unless, on petition properly presented to the court, a review 
is had and such use prohibited. 



CHAPTEK III. 
BUSINESS, HOW CONDUCTED. 

Siorioir 479. Checks to be affixed to all baggage. IXamages 
481). Annual report to be verified. Form of report 

481. Duties of corpoi-ation. 

482. Corporation to pay damages for refusal. 

483. furnish room inside passenger cars, and be re«poiusibl« fat 

damages occurring on freight and other cars. 

484. Corporations to post printed regulations, and not respoiuriblf 

for damages in violation of rules. 

486. To pay damages. Not liable in certain cases. CorpozatJoa 

may recover damages, when. 
48G. Regulations of trains. Penalty 

487. Passenger refusing to pay fare 

488. Officers to wear badge. 

489. liates of charges. 

490. Passenorer tickets, how issued, and to be good for lU 

months. 

491. Character of iron to be lued. 

§ 479. A check must he affixed to every package or par 
eel of bac^jrage when taken for transportation by any agenl 
or employee of such railroad corporation, and & duplicate 
hereof given to the passenger or person deb* erin^ the 



• 1 BAILROAD COKPORATION8. §§ 480-481 

{n Ms behalf; and if such check is refused on demand, fcb« 
railroad corporation must pay to such passenjrer the sum of 
tweDty dollars, to be recovered' in an action for damages; an! 
DO fare or toll must be collected or received from such passen 
per, and if such passeu«;er has paid his fare, the same mus 
be returned by the conductor in charge of the train ; and on 
producing the check, if his baprpraj^e is not delivered to him by 
the agent or employee of the railroad corporation, he may re- 
cover tiie value thereof from the corporation. 

§ 480. Every railroad corporation must make an annual 
report to the secretary of state, or other officer desi;ruated by 
law, of its o])erations for each year, endinj; on the thirty-first 
d:iy of December, veritied by the oaths of the president or 
acting superintendent of operations, the secretary and treas- 
urer of such corporation, and file it in the office of the serre- 
iary of state, or such other designated officer, by the twentieth 
aay of February, which must state: 
. I . 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 buildmgs, and for engines and 
cars, res])ectively ; 

3. I'he amount and nature of its indebtedness, and the 
amount due the corporation ; 

4. 'J'he amount received from the transportation of pas- 
sengers, property, mails, and express matter, and from other 
Bourccs ; 

5. 'J'he amount of freijrht, specifying the quantity in tons ; 

6. The amount paid for repairs of engines, cars* buildings, 
and other expenses, in gross, showing the current expenses o£ 
running such road ; 

7. The number and amount of dividends, and when paid ; 

8. The number of engine-houses and shops, oi engines and 
tars, and their character. 

§481. Every such corporation must start and run their 
I firs, for the transportation of persons and property, at such 
regular times as they shall fix by public notice, and must fur- 
nish sufficient HCConiino<lations for the transportation of all 
Buch passengers and property as, within a reasonable time 
previous thereto, of^er or is offered for trans])ortation, at the 
^laee of starting, at the juuction of other railroads, and at 
liding and stopping places established for receiving and dis^ 
charging way passengers and freight ; and must take, tran» 



H 482-485 RAILROAD CORPOBATIOHt. M 

port, and discharge such passengers and property at, from, 
■nd to such places, on the due payment of tolls, freight, of 
fare therefor. 

§ 482. In case of refusal by such corporation or then 
agents so to take and transport any passen^rs or property 
or to deliver the same, at the regular ap}K)intod places, such 
corporation must pay to the party aggrieved all damages wliicll 
are sustained thereby, with costs of suit. 

§ 483. Kvery railroad corporation must furnish, on tlie 
inside of Its paswenjrer c«rs, suthcient room ami accommodationi • 
for all passen<^ors to wlioin tickets are nuid for any one trip, 
and for all persons prcsentin*? tickets entitling them to travel 
thereon ; and when fare is taken for tratis]>orting passengen 
on any bajrgage, 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. 

§ 484. Every rsiilroad corporation must have printed and 
conspicuonsly posted on the inside of its passenger cars its 
rules and regultitions regarding fare and conduct of its passen- 
gers ; and in case any p:i8senger is injured on or fix)m the 
platform of a car, or on any bagga«re, wood, gravel, or freight 
car, in violation of such printed regulations, or in violation ol 
positive verbal instructions or injunctions ^iven to such paaeen- 
ger in person by any officer of the train, the corporation in 
not responsible for damages for such injuries, unless the cor- 
poration failed to comply with the provi&ious of the preceding 
section. 

§ 485. Railroad corporations must make and maintain » 
good and sufficient fence on either or both sides of their track 
and propeity. In case they do not make and maintain such 
fence, if their engine or cars shall kill or maim any cattle or 
other domestic animals upon their line of road which passes 
through or along the property of the owner thereof, they must 
pay to the owner of siu'h eattle or other domestic animals a 
feiir maiket price for the same, unless it occurred through the 
neglect or fault of the owucr of the animal so killed or 
maimed. Railroad cor})Oi ations pa^iug to the owner of the 
land through or along whicu their road is located an agreed 
^rice for making and maintaining such fence, or paving tht 
Hwt of such fence, with the award of damages allowed for thi 



iS ^ BAILROAD CORPORATIONS. §§ 486-4^8 

right of way for su A railroad, are relieved and exonerated from 
ftli clainiM for <iam:i^es arising out of the killing or maiming 
any animals of persons who thus fail to construct and maintain 
fuch fence; ana the owners of such animals are responsible for 
any damages 5r loss which may accrue to such corporation 
from such animals being upon their railroad track, reauiting 
from the non-construction of such fence, unless it is phcvB that 
such loss or damage occurred through the negligence Ci fault 
of the corporation, its officers, agenti?, or employees. 

I 486. A bell, of at least twenty pounds' weight, must be 
placed on each locomotive engine, and be rung at a distance 
of at hast eij>:hty rods from the place where the railroad crosses 
smy street, road, or highway, and be kept ringing until it has 
crossed such street, road, or highway ; or a steam-whistle 
mast 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 or one hundred dollars for every 
neglect, to be paid by the corporation operating the railroacl, 
which may be recovered in an action prosecuteaby the district 
attorney of the proper county, for the use of the State. The 
corporation is also liable for all damages sustained by any per- 
son, and caused by its locomotives, train, or cars, when iho 
provisions of this section are not complied with. 
Omitting to ring the bell, a misdemeanor. Penal Code, f 890. 
62 Cal. 604 ; 66 Cal. 516. 

§ 487. If any passenger refuses to pay his fare, or to ex- 
hibit or surrender his ticket, when reasonably requested so to 
do, the conductor and employees of thei' corporation may put 
him and his baggage out of the cars, using no unnecessary 
force, at any usual stopping place, or near any dwelling-house, 
on stopping the train. 

§ 488. Every conductor, baggage-master, engineer, brake- 
man, or other employee of any railroad corporation, employed 
on a j)as8enger train or at stations for passengers, must wear 
upon liis hat 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 condictor^ without such badge, ij 
authorized to demand or to receive from any passenger any 
fare, toll, or ticket, or exercise any of the powers of his office 
jr station ; and no other officer or employee, without sich 
Mdge, has any authority to meddle or interfere with any pas- 
langeror proi^erty. 



{§ 489-490 KAILROAD COBPORATIOKS. ^ 94 

§ 489. All railroad corporations miust fix and publish theii 
rates of charges for frei<rhta«re and fares from one depot to 
another, ou their various lines of road in this State, graduated 
Rs follows : 

1. One rate of charges per mile for a distance of one hun- 
dred miles or over ; 

2. One rate for a distance of seventy -five and less than one 
hundred miles, charging not exceeding ten j)er cent, per mll€ 
more than the first rate ; 

3. One rate for a distance of fifty and less than seventy-five 
miles, charging not exceeding fifteen per cent, per mile more 
than the first rate ; 

4. One rate for a distance of twenty -five and less than fifty 
miles, chai-gin;; not exceeding twenty per cent, per mile more 
than the tirst rate ; 

5. One rate for a distance not exceeding twenty-five miles, 
charging not exceeding twenty-five per cent, per mile more 
than the fii*st rate. 

But in no case, nor in any class of charges hereinbefore 
named, shall any railroad corporation charge or receive more 
than ten cents per mile for each passenger, nor fifteen cents 
per mile for each ton of freight transported on its road. For 
every transgression of these limitations the corporation is liar 
ble, to the party sufflring thereby, treble the entire amount 
of fare or freightage so charged to such paity. In no case ia 
the corporation required to receive less than twenty -five cents 
for any one lot of freight for any distance. 

Askiug or receiving illegal fare a misdemeanor. Penal Code, § 525. 

§ 490. Every railroad corporation must provide, and, on 
being tendered the fare therefor fixed as provided in the pre- 
ceding section, furnish to every person desiring a jiassage on 
tlieir passenger cars a ticket which entitles the purchaser to a 
ride, and to the accommodations provided on their cars, from 
the depot or station where the same is purchased to any other 
depot or station on the line of their roa<l. Every such ticket 
intities the holder thereof to ride on their passenger cars to 
;he station or depot of destination, or any interineiliate sta- 
tion, and from any intermediate station to* the depot of des- 
tination designated in the ticket, at any time within six 
months thereafter. Any corporation failing so to provide 
and furnish tickets, or refusing the passage which the 8am« 
tails for when sold, must pay to the person so refused the Buis 
«f two hundred dollars. r^ ^ 

y Digitized by VjOOQIC 



i& STREET RAILROAD CORFORATIOXS. §§ 491* 498 

§ 491. All railroads, other than street railroads and those 
nscd exclusively for carry injjp freight or for mining pnr])osi'8, 
built by corporations orj^anized under this chajiter, nul^t be 
constructed of the best quality of iron or steel railAf known m 
T or H rail, or other pattern of equal utility. [In efl'ect July 
1, 1874.] 



TITLE IV.^ 



STRKET RAILROAD 




0lonON 497. Authority to lay street railroad track, how obtained. 

498. ReAtrictions and limitations to the grant of the right of 

way. 

499. Two corporations may use the same track. 

600. Crossing tracks. Obstructions. 

601. Rates of fare, speed, &c. 

602. Time allowed for completion of work of laying down traek. 

603. May make further regulations and rules. 

604. Penalty for overchargiug. 

605. To provide and furnish passenger tickets. Penalty. 

606. Trial, proof, and limitation. 

607. City or toixTi to ret»erve certain rights. 

608. License to be paid to city or town. 

609. Track for grading purposes. 

610. What proYisions of Title III. are applicable to street rail- 

roads. 

611. Title applicable to natural persons alike with corporations. 

§ 497. Authority to lay railroad tracks through the streets 
and public highways of any incorporated city or town may 
be obtained for a term of years, not exceeding fifty, from the 
trustees, council, or other body to whom is intrusted the gov- 
ernment of the city or town, under such restrictions and Tim- 
^ itations, and upon such terms, and payment of license tax, as 
^ the city or town authority may provide. In no case must 
J permission be granted to propel cars upon such tracks otlier- 
^ wise than by horses, mules, or by w.re ropes rmining under 
2S the streets, and moved by stationary steam-engines, unless 
^Sfor special reasons, as hereinafter provided. [In effect March 
8, 1876.] 
67 Cal. 160 

§ 498. The city or town authonties, m granting the right 
if waj to street railroad corporations, in addition to the re- 
actions which they are authorized to impose, must re^iuire 



f§ 499-502 STREET RAILROAD CORPORATIONS. 9A 

% Strict compliance with the following conditions, except in 
the cases of prismoidal or other elevated railways. In such 
cases, said railway shall be required to be constructed in such 
a manner as will present the least obstruction to the freedom 
of the streets in which it may be erected when allowed by the 
grant! ng^ower. First, to construct their t^ks on those 
portions or streets designated in the ordinancl^raiitiiig. th) 
right, which iftust be, as, nearly as possible, m the middle 
thereof. Seco7idy to plan'k, 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 rei)air. Hush with the street, and with good crossings. 
Thira, that the tracks must not be more than five feet wide 
within the rails, and must have a space between them suffi- 
cient tD allow the cars to pass each other freely. [In effect 
Apni 3, 1876.] 

A § 499. Two corporations may be permitted to use the 
^ same street, each paying an equal portion for the construc- 
^ tion of the track ; but in no case must " two railroad corporsr 
Vk tions occupy and use the same street or track for a distance of 
Vvmore than five blocks. 
64 Cal. 74 ; 67 Cal. 499, 

§ 500. Any proposed railroad track may be permitted to 
cross any track already constructed, the crossing being made 
as provided in Chapter II., Title III., 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. 

§ 501. The rates of fare on the cars must not exceed ten 
cents for one fare, for any distance under three miles. The 

Vcai-s must be of the most approved construction for comfort 
and convenience of passengers, and provided with brakes to 
^Btop the same, when required. The rate of speed must not 
\ be greater than eight miles per hour. A violation of the , 
^ provisions of this section subjects the corporation to a fine of 
one hundred dollars for each offence. 

§ 502. Work to construct the railroad must be commenced 
within one year from the date of the ordinance granting th< 
right of way and the tiling of articles of incorporation, anj 
Um same must be completed within tiiree years thereaft^i 



17 8TKEET RAILROAD CORPORATIONS. §§ 603-507 

A Allure to complj with these prorisions works a forfeiture 
»f the right of way as well as of the franchise, uoless the un- 
completed portion is ahandoned by the corporation, with the 
consent of the authorities granting the right of way — such 
abandonment and consent to be in writing. 

67 Cal. 160. 

§ 503. 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 he necessary to a full en- 
ioyment of the franchise and the enforcement of the conditioof 
provided herein. 

§ 504. Any corporation, or agent or employee thereof, 
demandin<r or charging a greater sum of money for fare on 
the cars of such street railroad than that fixed, as provided in 
this title, forfeits to the person from whom such sum is re- 
ceived, or who is thus overcharged, the sum of two hundred 
dollars, to be recovered in a civU action, in any jus« ice's court 
having jurisdiction thereof, against the corporation. 

§ 505. Every street railroad corporation must provide, and, 
on request, furnish to all persons desiring a passage on its 
Gal's, any required quantity of passenger tickets or checks, • 
each to be good for one ride. Any corporation failing to pro- 
vide and furnish tickets or checks to any pei-son desiring to 
purchase the same at not exceeding the rate hereinbefore pre- 
8cril>ed, shall forfeit to such person the sum of two hundred 
dollars, to be recovered as provided in the preceding section, 
\>rccide(]j that tlie provisions of tiiis section sliail not apply to 
hucli street railroad corporations as charge but live cents fare, 
[lu effect March 13, 1883. J 

§ 506. Upon the trial of an action for any of the sums for- 
feited, as provided in the two preceding sections, proof that 
(he person demanding or receiving the money as fare, or for 
the sale of the ticket or check, was at the time of making the 
iemand or receiving the money, engaged in an office of the 
corporation, or vehicle belonjiing to the corporation, shall be 
vrimd facie evidence that such person was the agent, servant, 
»T employee of the corporation, to receive the money and give 
|he ticket or check mentioned, [in effect July I, 1874.] 

§ 607. In every grant to construct street railroads, th<i 
light to grade, sewer, pave, macadamize, or otherwise im 

ugitized by Google 



|§ 608-511 STREET RAILROAD COKPORATIONS. «* 

Drove, alter, or repair the streets or hi<:hway8, is reserved to 
he corporation, and cannot be alienated or impaired ; Hucb 
work to be done so as to ob'^triict the lailroad as little as po* 
Bible; and, if required, the corporation must shift its rails so 
as to avoid the obstructions made thereby, [in effect July 1, 
1874.] 

§ 508. Eaeh street railroad corporation must pay to the 
authorities of the city, town, county, or city and county, iis a 
license upon eaeh ear, such sum as the authorities may fix, not 
exceeding fifty dollars per annum in the city of San Francisco, 
nor mor« than twenty-tive dollars per annum in other citieg of 
towns. Where any street railroad connects or runs through two 
or more cities or town>5, a proportionate or equal sliare of such 
license tax must be paid to each of the cities or towns ; anc 
no such license tax is due the county authorities whore the 
Bame is paid to any city or town authority. 

§ 509, The right to lay down a track for grading pur- 
poses, and maintain the same lor a period not to exce-*! three 
years, may be jiranied.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 yeara 
upon any one street ; and it must be laid level with the street, 
and must be operated under such restrictions as not to inter- 
fere with the u^e of the street by the public The corporate 
authorities of any city or town, or city and county, may grant 
the right to use steam or any other motive ) ower in projjel- 
ling the cars used on such grading track, when public cou- 
veuieuce or utility demands it, but the reasons therefor must 
be set forth in the ordinance, and the right to rescind the ordi- 
nance at any time reserved. 

§ 510. Street railroads are governed by the provisions of 
Title HI. of this part, so far as ihey are applicable, unlcsa 
«uch railroads are therein specially excepted. [§§ 454-4' U.| 
[In effect July 1, 1874.] 

§ 511. When a street railroad is const racted, owned, oi 
operated by any natural person, this title is ap)dicable to sad 
Msi'son iu like manner as it is applicaMe to corporations. 



,y Google 



19 WAGON ROAD CORPORATIONS. §§ 512-613 

TITLE V. 
WAGON ROAD CORPORATIONS. 

McfTiON 612. Three commiBsionen to act with surveyor. 

613. Survey and niap to be filed and approved by guperrlflon. 
614 Tolls, <&c., to be collected. Pboalty for takiug uhIawjEsI 

tollB. 
615. No tolls to be charged on highwayg or public roads. 

516. Kates of toll to be posted at gate. 

517. Toll gatherer msiy detain persons until they pay toll. 

518. Toll gjitherer not to detain any person unnecessarily. 
619. Persons avoiding tolls to pay live dollars. 

520. Penalties for trespasses on property of corporation. 

521. When capital invested is repaid, tolls to be reduced, &o. 

522. May mortgage and hypothecate corporate property. 

523. This title applies to natural persons as well as corporationi 

§ 512. Where a corjjoi'iition is formed for the Construction 
and inaiutenance of a wagon road, the road must be laid oQi 
B8 follows : 

Three coramis>ioiiers must net in conjunction with the sur- 
veyor of the corporation, two to he apj.ointed by the board of 
supervi.sors of the county through which the road is to run, 
and one I)y the corporal ion, who must hiy out tlie propo.sed 
road and re])ort their proceedings, to<iether with the map of 
the road, to the supervisors, as provided in the succeeding 
section. [In etlect July 1, 1874.] 

§ 513. When the route is surveyed, a map thereof must 
be submitted to and filed with the board of supervisors of 
each county throu*;li or into which the road runs, giving its 
general course and the principal points to or by whicli it runs, 
and its width, which must in no case exceed one hundred feet, 
and the supervisors must either approve or reject the survey. 
If apjuoved, 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 ihe 
board of supervisors must require the corporation, at its own 
expense, and the corporation must so change and open the 
highway so taken and used as to make the same as good aa 
ibey were before the appropriation thereof; and must so con- 
>truct all crossings of public highways over and by its road, 
ftnd its toll gates, as not to liinder or obstruct the use of the 

ugitized by Google 



{§ 514-519 WAGOM ROAD CORPORAIIONS. 100 

§ 514. All wagon road corporations may bridg^e 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 
luch tolls only on their roads, ferries, or bridges, as are fixed 
by the boai-d of supervisors of the proper county through 
which the road passes, or in which the ferry or bridge is sit* 
nate, except that in the counties of Klamath, Butte, De. 
Norte, Plumas, Humboldt, and Sierra, the directors may fix 
their own tolls; but in no case must the tolls be more than 
Bufficient to pay fifteen per cent, nor less than ten per cent 
jKT annum on the cost of construction, after paying for r^ 
pairs and other expenses for attendini? to the roads, bridges, 
or ferries. If tolls, other than as herein provided, are char«red 
or demanded, the corporation forfeits its franchise, and must 
pa} to the party so charged one hundred dollars as liquidated 
damages. [Approved March 28, 1874. Sixty days.] 

§ 515. When any highway or public road is taken and 
used by any wagon road corporation as a part of its road, the 
corporation must not place a toll gate on or take tolls for the 
use of such highway or public roail by teamsters, travellers, 
drovers, or any one transporting property over the same. 

§ 516. The corporation must* affix and keep up, at or over 
each gate, or in some conspicuous place, so as to be conven- 
iently read, a printed list of the rates of toll levied and de- 
manded. 

§ 517. Each toll gatherer may prevent from passing 
through his gate persons leading or d living animals or ve- 
hicles subject to toll, until they shall have paid, respectively, 
the tolls authorized to be collected. 

§ 518. Every toll gatherer who, at any gate, unreasonably 
hinders or delays any traveller or passenger liable to the pay- 
ment of toll, or demands or receives from any person more 
than he is authorized to collect, for each ofTence forfeits the 
lum of twenty-five dollars to the person aggrieved. 

§ 519. Every person who, to avoid the payment of the 
legal toh, with his team, vehicle, or horse, turns out of « 
^agon, turnpike, or plank road, or passes any gate thenion oj 
ground adjacent thereto, and again enters upon such road 
for each offence forfeits the sum of five dollar^ to the ooipo 
•iLtion injured. Digitized by GoogTe 



lOI WAGON ROAD CORPORATIONS. S§ 620-523 

§ 620. Every person who : 

1. Wilfully breaks, cuts down, defaces, or injures any 
feiilestone or post on any wagon, turnpike, or plank road; 
or, 

2. Wilfully breaks or throws down any gate on such road ; 
or, 

3. Dijrs up or injures any part of such road, or anything 
thereunto belon<?injr; or, 

4. Forcibly or fraudulently passes any gate thereon without 
having paid the legal toll ; 

For each offence forfeits to the coi-poration injured the sua 
of twenty -five dollars, in addition to the damages resulting 
from his wrongful act. 

§ 521. The entire revenue derived from the road, shall be 
appropriated: first, to repayment to the corporation of the 
costs of its con^^t^uction, togetiier with the incidental expenses 
incurred in collecting tolls and keeping the road in repair ; 
and, second, to the payment of the dividend among its stock* 
holders, as provided m 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 ex- 
penses, and to keep the road in good repair. [In effect July 
I, 1874.] 

§ 622. The corporation may mortgage or hypothecate its 
road and other property for funds with which to construct or 
repair their road, but no mortgage or hypothecation is valid 
or binding un ess at least twenty-five per cent, of the capital 
Btock subscribed has been paid in and invested in the con- 
struction of the road and appurtenances, and then only after 
an affirmative vote of two thirds of the capital stock sub- 
Bcrilied. 

§ 523. When a wagon, turnpike, or plank road is con- 
itructed, owned, or ojjerated by any natural persou, this title 
is applicable to such pei*son in Uke manner as it is applicable 
ff corporations. 

Oowtniction of ToU Roads. See Pol Cod«, §§ 2779-2881 



,y Google 



§§ 628-630 BRIDGE, FERRT, ETC., CORPORATIONS 101 



TITLE VL 

BRIDGE, FERRY, WHARF, CHUTE 
AND PIER CORPORATIONS. 

BicnoN 528. Corporation to obtain licenKe from Buperrisors. 

629. In what contingencies corporate existence ceaset* . 

630. President and secretary to make annaal report, and whac 

to contain. Damages for failing to report. 
681. Tills title to apply to natural persons alike with corpom* 
tions. 

§ 528. No corporation must construct or take toUs on a 
bridge, ferry, wharf, chute, or pier until authority is granted 
therefor by the supervisors. 

§ 529. Every such corporation ceases to be a body corpo- 
rate: 

1. If, within six months from filing its articles of incorpora- 
tion, it has not obtained such authority from the board ol 
supervisors; and if, within one year thereafter, it has not 
commenced the construction of the bridjre, 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 incoi^ 
poration, the bridge, wharf, chute, or pier is not completed; 

3. If, when the bridge, wharf, chute, or pier of the corpora* 
tion is destroyed, it is not reconstructed and ready for qm 
within three years thereafter ; 

4. If the ferry of any such corporation is not in running or. 
der within three months after authority is obtained to establish 
it, or if at any time thereafter it ceases, for a like term consec- 
utively, to perform the duties imposed by law. 

§ 530. The president and secretary of every bridge, ferry 
wharf, chute, or pier corporation must annually, under oath 
report to the board of supervisors of the county in which tU< 
articles of incorporation are filed : 

1. The cost Df constructing and providing all nccessarr 
Eppcndages and appurtenances lor their bridge, ferry, whar( 
ehute, or pier ; 

2. The^ amount of all moneys expended thereon, since iti 
Tnstmction, for repairs and incidental expenses ; 



i03 TELEGRAPH COBPORATIONS. §§ 631-630 

3. The amount of their capital stock, how much paid in, and 
now much actually expended thereof ; 

1. The amount retreived during the year for tolla and from 
idl 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 bnsiLeoi 
of the corporation as the board of supervisors may require. 

This report the president and secretary must cause to be po^ 
Udhed for four weeks in a daily newspaper published nearest 
the bridge, ferry, wharf, pier, or chute, if required by order of 
ths board of supervisors. A failure to make such re|>ort sub- 
jects the corporation to a penalty of two hundred dollars ; and 
for every week permitted to elapse after such failure, an addi- 
tional penalty of fifty dollars ; payable in each case to the 
county from which the authority of the corporation was de- 
rived. All such cases must be reported by the board of super- 
visors to the district attorney, who must commence an action 
therefor. 

§ 631. When a bridge, feiTy, wharf, chute, or pier is con- 
structed, operated, or owned by a natural person, this title is 
applicable to such person in like manner as it is applicable to 
corporations. 

General provisions : Public Ferries and Toll Bridges, Polit. Code, |§ 
l84a-2805 : Wharves, Chutes, and Pieis, PoUt. Code, §§ 290&-2S»0. 



TITLE VII. 

TELEGRAPH CORPORATIONS. 

BPOnoN 586. Bfay use right of way along waters, roads, and highways. 
687. Persons liable for damages for injuring telc^praph property 

638. Party guilty of wilful and malicious injury, liable to on« 

hundred times actual damages. 

639. Conditions on which damage to sub-aqueous cable may b« 

recovered. 

640. Blay dispose of certain rights. 

641. Bates of charges to be fixed, and how published. (Repealed.) 

8 636. Telegraph corporations may construct lines of tele- 
giApb along and upon any public road or highway, along or 
icfoss ^ny of the waters or lands within this State, and may 



S§ 637-641 TELEOSAPH COBPOSATION8. 104 

erect poles, posts, piers, or abutments for supporting the in- 
sulators, wires, and other necessary fixtures of their lines, in 
■uch manner and at such points as not to incommode the pub- 
lic use of the road or highway, or interrupt the navigation of 
the waters. 

§ 637. Any person who injures or destroys, through want 
of proper care, any necessary or useful fixture of any telegraph 
corporation, is liable to the corporation for all damages sus- 
tained thereby. Anjr vessel which, by dragging its anchor or 
otherwise, breaks, injures, or destroys the sub-aqueous cable 
of a telegraph corporation, subjects its owner to the damages 
hereinbefore specified. 

§ 538. Any person who wilfully and maliciously does any 
injury to any telegraph property mentioned in the preceding 
section, is liable to the corporation for one hundred times the 
amount of actual damages sustained thereby, to be recovered 
in any court of competent jurisdiction. 

§ 639. No telegraph corporation can recover damages for the 
breaking or injurv of any sub-aqueous telegraph cable, unless 
such corporation has previously erected on either bank of the 
waters under which the cable is placed, a monument, indicat* 
ing the place where the cable lies, and publishes for one month 
in some newspaper most likely to give notice to navigators, a 
notice giving a description and the purpose of the monuments, 
and the general course, landings, and termini of .the cable. 

§ 640. Any telegraph corporation may at any time, with 
the consent of the persons holding two thirds of the issucQ 
■tock of the corporation, sell, lease, assign, transfer, or oon 
vey any rights, privileges, franchises, or property of the coi 
poration, except its corporate franchise. 

§ 641 of said Code is repealed. [In effect July I, 1874.] 



,y Google 



105 WATER AND CANAL GOBPORATIONS. §§ 548-549 

TITLE Vin. 
WATER AND CANAL CORPORATIONS. 

iMraov 548. Corporation may obtain contract to supply city or town 

649. Duties of corporation. Rates fixed by commissioners. 

650. Right to use streets, ways, alleys, and roadB. 

651. To build and keep bridges in repair. 

652. Irrigation. Easement and water rates. 

§ 648. No corporation formed to supply any city, city and 
county, or town with water must do so unless previously au- 
thorized bjr 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. Con- 
tracts so made are TaliU and binding in law, but do not tako 
from the city, city and county, or town the right to regulate 
the rates for water, nor must any exclusive right be granted. 
No contract or grant must be made for a tei*m exceeding 
fifty years. 

§ 649. All corporations formed to supply water to cities 
or towns must furnish pure fresh water to the inhabitants 
thereof, for family uses, so lone: as the supply permits, at rea- 
sonable rates and without distinction of persons, upon proper 
demand therefor; and must furaish water to the extent of 
their means, in case of fire or other great necessity, fr« e of 
charge. The rates to be charged for water must be deter- 
mined by commissioners, to be selected as follows : two by the 
city and county or city or town authorities, or, when there are 
no city or town authorities, by the board of supervisors of the 
county, and two by the water company ; and in case a ma- 
jority cannot agree to the valuation, the four commissioners 
must choose a fifth commissioner; if they cannot agree upon 
a fifth, then the county judge of the county musr appoint such 
5fth person. The decision of the majority of the commis- 
uioners shall determine the rates to be charged for water for 
une year, and until new rates are established. The board of 
supervisors, or the proper city or town authorities, may pre- 
icribe proper rules relating to the delivery of water, not in- 
onsistent with the laws of the State. [In effect July 1 
•S74.] 
62 Cal. 141 Digitized by GoOglc 



{§ 660-652 HOME8TBAD COBPOaATIONfl. lOI 

§ 660. Any corporation created under the provisions of 
this part, for the purposes named in this title, subject to the 
reasonable direction of the board of supervisors, or city or 
town authorities, as to the mode and manner of usmg such 
ri^ht of way, may use so nmch of the streets, ways, and alleys 
in any town, city, or city and coimty, or any public roac' 
therein, as mav be necessary for laying pipes for conduetrng 
water into any'such town, city, or city and county, or through 
or into any part thereof. 

§ 651. Ever v water or canal corporation mnst construct 
and keep in good repair, at all times, for public use, across 
their canal, flume, or water pipe, all of the bridges that the 
board of supervisor of the county in which such canal is sit- 
uated may require, the bridges being on the lines of public 
highways and necessary for public uses in connection with 
such highways; and all waterworks must be so laid and 
constructed as not to obstruct public highwa>s. 

See Act of March 30, 1872, Relative to Formation of Canal and Ditch 
Corporations, Appendix, p. 471. 

§ 552. Whenever any corporation, organized under the 
laws of this State, furnishes water to irrigate lands which 
said corporation has sold, the right to the flow and use of 
•aid water is and shall remain a j)erpetual easement to the 
land so sold, at such rates and terms as may be established 
by said corporation in pursuance of law. And whenever any 
person who is cultivating land on the line and within the 
flow of any ditch owned by such cori)oration, has been fur- 
nished water by it, with which to irrigate his land, such per- 
son shall be entitled to the continued use of said water, upon 
the same terms as thase who have purchased their land of thft 
corporation. [In effect April 3, 1876.] 

66 Cal. 440. 



TITLE IX. 

HOMESTEAD CORPORATIONS. 

£67. Time of corporate existence. 

668. By-laws must specify time for and amount of payment ol 

instalments, and penalty for failure to pay. By-laws t« 

be furnished to any member on demand. 

668. Advertisement and -ale of delinquent and forfeited i 

600. Ma^ borrow and loan funds — how, and for what tliaa. 



107 HOMESTEAD CORPORATIONS. §§ 567-560 

Ssonoir 561. Minor children, wardf>, and married women may own 9toek. 

662. Forfeiture for speculating in or owning lands exceeding two 

hundred thousand dollars. 

663. When corporation is terminated, and how. 

664. Payment of premiums. 

665. Annual report to be published. 
666 Publication in certain cases. 

§ 557. Corporations organized for the purpose of acqnii- 
ing lands in large tracts, paying off incumbrances thereon, 
improving and subdividing them into homestead lots or par- 
cels, and distributing them among the shareholders, and for 
tlie accumulation of a fund for such purposes, are known M 
homestead corporations, and must not have a corporate ex* 
istence for a longer period than ten years. 

§ 558. Such corporations must specify in their by-laws 
the times when the instalments of the capital stock arc pay- 
able, the amount thereof, and the fines, penalties, or forfeit- 
ures incurred in case of default. A printed copy of the arti- 
cles of incorporation and by-laws must be furnished to any 
shareholder on demand. 

§ 659. Whenever any" shares of stock are declared for- 
feited, by resolution of the board of directors, the directors 
may advertise the same for sale, giving the name of the sub- 
Bcriber 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 prin- 
cipal place of business of such corporation is located. Such 
sale must be made at auction, under the direction of the sec- 
retary of the company. The corporation may be a bidder, ' 
and tiie shares must be disposed of to the highest bidder for 
cash. No defect, informality, or irregularity in the proceed- 
ings 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 instalments then due, and all expenses and charges of 
sale, must hold the residue subject to the order of the delin- 
quent subscriber. 

§ 560. Homestead corporations may borrow money for the 
purposes of the corporation, not exceeding at any one time 
»ne fourth of the aggregate amount of the shares or parts of 
ihares actuaUjr paid in, and the income thereof; no greater rata 



|§ 561-563 HOMESTEAD COBPOfiATIONS. lOS 

of interest must be paid therefor than twelve per cent, per an 
num. 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 
tliat owned by the corporation at the time of procuring the 
loan, any sum of money which, together with the interest con- 
tracted to become due thereon, will not exceed ninety per 
cent, of the unpaid amount subscribed by the shareholders ; 
but no loan must be made to the corporation for a term ex- 
tending beyond that of its existence. 

§ 561. Such shares of stock in homestead corporations aa 
may be acquired by children, the cost of which, and the de- 
posits and assessments on which are paid from the personal 
earnings of the children, or with gifts from pereons other than 
their male parents, may be taken and held for them by their 
parents or guardians. Married women may hold such shares 
as they acquire with their personal eamiugs, or those of their 
children, voluntarily bestowed therefor, or from property be- 
queathed or given to them by persons other than their hus- 
bands. 

§ 562. Homestead corporations must not purchase and sell, 
or otherwise acquire and dispose of real property, or any in- 
terest therein, or any personal property, for the sole purpose 
of si^vecuhition or profit. Nor must any such corporation at 
any one time own or hold, in trust or otherwise, for its pur- 
poses, real properly, or any interest therein, which in the ag- 
gregate exceeds in cash value the sum of two hundred thou- 
sand dollars. For any violation of the provisions of this sec- 
tion, (oi-]>o rations forfeit their corporate rights and powers. 
On the application of any citizen to a court of competent ju- 
risdiction such forfeiture may be adjudged, and the judgment 
carries with it costs of the proceedings. 

§ 663. Except for the purpose of winding up and settling 
its affairs, every homestead corporation must terminate at the 
expiration of the time fixed for its existence in the articles ol 
incorporation, or when dissolved as provided in this part Nc 
dividend of funds must be made on termination of its corporate 
existence, until its debts and liabilities are paid ; and upon thf 
final settlement of the afifairs of the corporation, or upon the ti^r 
mination of its corporate existence, the directors, in such man- 
ner as they may determine, must divide its property amon| 



109 BA.VIN08 AND LOAN OORPOSATIOH8. §§ 664-669 

Its shareholders in proportion to their respectiro interests, or, 
npon the application of a majority in interest of the stock- 
holders, must seli and dispose of anj or all of the real estate 
of the corporation npon such terms as may be most condociye 
to the interests of ail the stockholders, and must convey the 
same to the purchaser, and distribute the proceeds among the 
shareholders, or may at any time, when best for the interests 
of all the shareholders, cause the lands of the corporation to 
be subdivided into lots and distribnted, by sale for premiumi^ 
at auction or otherwise, among the shareholders. 

§ 664. Such premiums on lots may be made payable at th« 
time they are bid off, and, if nor so paid on any lot of land, 
the directors may immediately offer the same for sale again. 
If made payable at a future day, and any shareholder fails to 
pay his bid on the day the same is made dne and payable, the 
directors may advertise and sell the shares of stock represent* 
ing the lots of land on which the premiums remain unpaid, in 
the manner provided in the by-laws for the sale of sfaiares on 
account of delinquent instalments and premiums. 

§ 666. The actual financial condition of all homestead 
corporations must, by the directors thereof, be published an- 
nually 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 state- 
ment 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. 

§ 666. In any case in which a publication is required, and 

DO newspaper is published at the principal place of business, 

the publication may be made in a paper published in an ad- 

joinmg county. 

See Act of Blarch 28, 1874, Belative to Homestead Ck>rpoiatioiit, Ap- 



TITLE X. 

SAVINGS AND LOAN CORPORATIONS. 

571. Hay loan money — on what turns, how, and to whom, and 

how long. 
fHX Capital stock, and rights and privileges thereof. 
07B. No dividends, except from surplus profits. To eontmDl ■• 

IteMUty , except for deposits 



|§ 671-574 SAYINGS AND LOAN COBPORATIONB. IIC 

SscTioN 574. Property which may be owned by corporatiouB, and how 
diRposed of. Keetrictions in purchases as provided abore 
675. Married women and minors may own stock in thcis ow« 
right. 

576. May issue transferable certificates of deposit. Special cii^ 

tificates. 

577. To provide reserve fund for the payment of losses. 

678. Prohibition on director and officer, and what vacates cficci 
579. I>efinition of phrase " create debts." 

§ 57] . Corporations organized for the purpose of accuiuu 
latin;: and loaiiin;^ the funds of their members, stockholders, 
mid depositor, may loan and invest the funds thereof, receive 
lieposits of money, loan, invest, and collect the -same, with 
interest, and may repay depositors with or without interest. 
Ko such corporation nmst.loan money, except on adetjuate 
security on real or personal property, and such loan must not 
be for a longer period than six years. 

67 CaL 694. 

§ 572. When savings and loan corporations have a capital 
Btock specified in their articles of incorporation, certificates of 
the ownership of shares may be issued ; and the rights and 
)>rivilej::e8 to be accorded to, and the obligations to be imposed 
upon, such capital stock, as distinct from those of depo^itors, 
mubt be fixed and defined, either in the articles of incorpora- 
tion or in the by-laws. 

66 Cal. 346. 

§ 573. The directors of savings and loan corporations 
may, at such times and in such manner as the by-laws pre 
scribe, declare and pay dividends of so much of the p'*oHts 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 de[)ositor8. 
The directors must not contract any debt or liability agaiust 
the corporation for any purpose whatever, except for deposits. 
The capital stock and the assets of the corporation are a se- 
curity to depositors and stockholders, depositors having the 
cric^.rity of security over the stockholders, but the by-laws may 
fro 'ide that the same security shall extend to deposits made 
Ly stockholders. 

§ 574. Savings and loan corporations may purchase, hold 
knd convey real and personal property, as follows : 

1. The lot and budding in which the business of the oor 

E oration is carried on, the cost of which must not exceed out 
andred thousand dollars ; except, on a vote of two third! 
8 



ill SAYINGS AND LOAN OORPORATIONS. §§ 676-576 

»f the stockholders) the corporation may increase the snni 
to an amount not exceeding two hundred and fifljr thousand 
dollars ; 

2. Such as may have been mortgaged, pledged, or con- 
veyed to it in trust, for its benefit in good faith, for money 
loaned in pursuance of the regular business of the corpora- 
tion; 

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 live years after the title 
thereto is vested in it by purchase or otherwise ; 

5. No corporation must purchase, own, or sell personal 
property, except such as may be requisite for its immediate 
accommodation for the convenient transaction of its busiuess, 
mortga^'es on real estate, bonds, securities, or evidences of in- 
debtedness, public or private, gold and silver bullion, and 
United States mint certificates of ascertained value, and evi- 
dences of debt issued by the United States ; 

6. No corporation must purchase, hold, or convey bonds, 
securities, or evidences of indebtedness, public or private, ex- 
cept bonds of the United States, of the State of California, and 
of the counties, cities, or cities and counties, or towns of the 
State of California, unless such corporation has a capital stock 
or reserved fund paid in, of not less than three hundred thou- 
sand dollars. [Approved March 18, 1874. Immediate effect.] 

§ 675. Married women and minors may, in their own 
itght, make and draw deposits and draw dividends, and give 
?3lid receipts therefor. 

i 676. Savings and ban corporations may issue general 
seitificates of deposit, v^hich are transferable, as in othci 
lases, by indorsement and delivery ; may issue, when re- 
incsted by the depositor, special certificates, acknowledging 
the deposit by the person therein named of a specified sum ol 
money, and expressly providing on the face of such certificate 
that the sum so deposited and therein named may be trans- 
ferred only on the oooks of the corporation ; payment there- 
after made by the corporation to the depositor named in sncli 



If 677-578 SAYINGS and loan corporations. IIS 

certificate, or to his assignee named npon the books of the 
corporation, or, in case of death, to the legal representativs 
of such pei-son, of tlie sum for which such special certificate 
was issued, discharges the corporation from all farther liabil 
ity on account of the money so paid. 

§ 577. Savings and loan corporations may prescribe by 
their by-laws the time and conditions on which repayment is to 
be made to depositors ; bat whenever there is any call by de* 
positors for repayment of a greater amount than the corpora- 
tion may have disposable for that purpose, the directors or 
officers thereof must not make any new loans or investmcutf 
of the funds of the depositors, or of the earnings thereof, 
until such excess of call has ceased. The directors of any 
snch 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 fiind, which must be in* 
vested in the same manner as other funds of the corporation, 
and must be used toward paying any losses which the corpora- 
tion may sustain in pursuing its lawful business. The cor- 
poration may provide by its by-laws for the disposal of any 
excess in the reserve fund over one hundred thousand dollars, 
and the final disposal, upon the dissolution of the corporation, 
of the reserve fund, or of the remainder thereof, alter pay- 
ment of losses. 

67 CaL 602. 

§ 678. No director or officer of any saving and loan cor- 
\ oration must, directly or indirectly, for himself or as the part- 
ner or agent of others, borrow any of the deposits or other 
fnnds of such corporation, nor must he become an indorser or 
surety for loans to others, nor in any manner be an obligor for 
moneys borro\ved of or loaned by such corporation. The office 
of any director or ofiicer who acts in contravention of the pro- 
isions of this section immediately thereupon becomes vacant. 

Oveidzawing of his acoount by officer, a miBdemsmirt. PesAl Code 
I 661. 

§ 679. Receiving deposits, issuing certificates of deposit^ 
checks, and bills of exchange, and the like, in the transaction 
of the business of savings and loan corporations, must not be 
construed to be the creation of debts within the meaning d 
^e phrase ''create debts," in -section 309. 

8m Act of February 21, 1872, Relative to Corporations for the i 
atfoe and InveatiiMiit of Vonds and Bavliifa, Appendix, p. 406. 
67 Cal. 602. i I i 



t* MfiriKO OOBFOBATIOVt. {{ 584~687 

TITLE XL 

MINING CORPORATIONS. 

flMOOS 684. BemonJ of the principal office proridcd tor (Repealed.) 

686. Directon to file certificatei ol proceedii^i in <^oei el 

coanty clerlu and aecretaiy of state. 
688. Transfer agencies. 

687. Stock issued at transfer agencies. 

§ 684. Section five hundred and eig1it/-foiir of the CirO 
Code is repealed. [In effect April 3, 1876.] 

§ 685. When the publication provided for in the preoed- 
big section has been completed, the directors of the oorpofB- 
don mast file in the offices of the clerks of the counties from 
and to which such change has been made, and in the office ot 
the secretary of state, certified copies of the written consent 
of the stockholders to such change, and of the notice of snch 
change, and proof of publication ; also, a certificate that the 
proposed removal has taken place; and thereafter the prin- 
i»pal place of business of the corporation is at the place to 
which it is r^jnoved. 

§ 586. i aj corporation organized in this State for the 
purjiose of mining or carrying on mining operations in or 
without this State, may estabush and maintain agencies in 
other StatCsi of the United States, for the transfer and issuing 
of .their stock ; and a transfer or issue of the same at anpr such 
transfer acency, in accordance with the provisions of its by- 
laws, is viJid and bindin? as fully and efrectnally for all pur- 
poses as if made upon the books of such corporation at its prin- 
jipal office within this State. The agencies must be governed 
3j the by-laws and the directors of the corporation. 

§ 587. All stock of any such corporation, issued at a 
.vansfer agency, must be signed by the president and secretary 
of the corporation, and countersigned at the time of its issue 
by the agf^nt having charge of the transfer agency. No stock 
oust be issued at a transfer agency unless the certificate of 
itock, in )iea of which the sa.ne is issued, is at the time sur- 
rendered fur cancellation. 

Digitized by VjOOQIC 



5§ 593-596 BBNKVOLENT COHPOKATION8. 1,14 

TITLE XIL 

BENEVOLENT CORPORATIONS. 

BlOTlON 593. Corporations for purposes other than profit, how foraNd* 

594. Additional facts, articles of incorporation to set out. 

595. Amount of real estate limited. 

59S. Land held by Masons, Odd Fellows, and Pioneers. 

597. Directors to make verified report annually. 

598. Sale and mortgage of real estate. 

699, What may be provided for in their by-laws, &c. 

600. Members admitted after incorporation. 

601. No member to transfer membership, &c. 

602. Rc'ligiouH societies may become sole corporations. 

603. Churches, how incorporated. 

§ 593. Any number of persons associated together for any 
purpose, where pecuniary profit is not their object, and foi 
which iudividuals may lawfully associate themselves, may, in 
accordance with the rules, re^Iulations, or disci). line of such 
association, elect directors, the number thereof to be not less 
than three nor more ihan eleven, and may incorporate them- 
selves as provided in tliis part. [In effect April 5, 1880.] 
/ § 594. In addition to the requirements of section 290, the 
/ articles of incorporation of any association mentioned in the 
/ preceding section must set forth the holding of the election for 
directors, the time and place where the same was held, that a 
majority of the members of such association were present and 

\ voted at such election, and the result thereof; which facts must 
be verified by the officers conducting the election. 
52 Cal. 333. 

§ 595. All such corporations may hold all the property of 
the association owned prior to incorporation or acquired there- 
after in any manner, and transact all business relative thereto ; 
lint no such corporation must own or hold more real estate 
I than may be necessary for the business and objects of the as- 
\3 ^ sociation and providing burial grounds for its deceased mem- 
^V bei-s, not to exceed six whole lots in any city or town, nor mors 
\ iian twenty acres in the country, the annual increase, income, 
' cJ Wf profit wjfiereof must not exceed fifty thousand dollars, prO' 
^ v^v videdy that any such corporation now, or hereafter having, and 
^^v having had continuously for the next preceding three years, 
X-v^ the care, custody, control, and maintenance each year, u])on 
Vfc an annual average of not less tlian one hundred orphans, hsil/ 
vrphans, and indigent minor children at any one orphan asy 
lum, shall be entitiid and allowed to own and i^ossess any 
nnniber of acres not exceeding one hundred and sixty acres o^ 
and in the country, outside of any incorporated city or town, 
and the annual income or profit of which does not exceed fiftf 
>hou8and dollars; and prooid^d further, such orphan H.«*yluii 



115 RELIGIOUS, ETC., CORPORATIONS. §§ 686>689 

phall be situated on such lands; and provided further, that th€ 
limitations herein provided for shall not apply to cc)r|K>ratiou8 
formed, or to be formed, under section six hniidred and two 
of the Civil Code, when the land is held or used for clinrcbes, 
hospitals, schools, colleges, orphan asylums, ]»arsouages, or 
cemetery purposes. [In effect February 26, 1881.] 

§ 596. In addition to that provided for in the preceding 
section, friendly societies and Fioneer associations may hold 
such real estate as may be necessary to carry out their char- 
itable purposes, or for the establishment and endowment of 
institutions of learning connected therewith. In case any 
such corporation is the owner, by donation or purchase, of 
more lands than herein or in the preceding section provided 
for, such surplus must be sold and conveyed by the corpora- 
tion within five years after its acquisition. Such sale may be 
made without the order or decree of the Superior Coart, m 
hereinafter provided. [In effect April 6, 1880.] 

§ 597. The directors must annually make a full report of 
all property, real and personal, held in trust for their corpora- 
tion by them, and of tlie condition thereof, to the members of 
the association for which they are acting. 

§ 598. Corporations of the character mentioned in section 
five hundred and ninety-three may mortgage or sell real prop- 
erty held by them, upon obtaining an order for that purpose 
from the Superior Court held in the county in which the prop- 
erty is situated. Before making the order, proof must be 
made to the satisfaction of the court that notice of the appli- 
^ cation for leave to mortgage or sell has been given by publica- 
j^^^^tion in such manner and for such time as the court or the 
^ judge has directed, and that it is to the interest of the corpo- 
ration that leave should be granted as prayed for. The ap- 
^ plication must be made by petition, and any member of the 
?^ corporation may oppose the granting of the order by affidavit 
^Vor otherwise. But nothing herein contained shall prohibit or 
prevent the trustees or directors of such corporation, under 
such rules and regulations as they may adopt, from disposing 
of burial plots situated in gronnds of such corporation dedi- 
cated for burial purposes, without making such apph'cation to 
or obtaining any order from court. In effect March 16, 1889.] 
^ § 599, Corporations organized for purposes other than for 
^^ profit may, in their by-laws, ordinances, constitutions, or ani- 
cles of incorporation, in addition to the provisions in Title I. 
tf4 of this Part, provide for : 

1. The qualification of members, mode of eleeHic©^^^(^ terms 
^J of admission to membership. 
f^ 2. The fees of admission and dues to be paid to their treas- 



. t... J.. 



.$§ 600-602 MKLIOIOUS, ETC., COBPORATlOXfl. 110 

n. The nnmher of members that shall constirnte a qnomm 
Ht any meetiD<; of the corporatiou, and that election of officers 
of the corporation bj a meeting so constituted shall be as valid 
as if there had been a majority of the members present thereat 
and votinjj. 

4. 'J'he expulsion and suspension of members for misconduct 
or non-payment of dues; also, for restoration to membership. 

5. Contrflctin^, securing, paying, and limiting the amount 
of their indebtedness. 

6. Other regulations, not repugnant to the Constitution or 
laws of the State and consonant with the objects of the cor- 
poration. [Approved March 14, 1885.] 

§ 600. Members admitted after incorporation have all the 
rights and privileges, and are subject to the same responsibili- 
ties, as members of the association prior thereto. 

§ 601. 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 deprived 
thereof, except as herein provided. 

8te acts of Mareh 28, 1874. ReUtive to Mutual Beneficial and Rellaf 
AMOdations, Appendix, p. 481 ; and Januazy 8, 1872, KelatiTe Co lucor- 
" 1 of Colleges by BeoeTdleni and Beligious Societies, p. 465. 



S 602. Whenever the rales, regulations, or discipline of 
any nligions denomination, society, or church require, for the 
administration of the temporalities thereof and the manage- 
ment of the estate and property thereof, it shall be lawful for 
the bishop, chief priest, or presiding elder of such religious 
denomination, society, or church to become a sole corporation 
in the manner prescribed in this title, as nearly as may be, 
lud with all the powers and duties and for the uses and puiw 
)>08e8 iL this title provided for religious incorporations, and 
subject to all the conditions, limitations, and provisior* in 
said title prescribed The articles of incorporation tu be 
filed shall set forth the facts authorizing such iucoi-poration, 
and declare the manner in which any^ vacancy occurring in 
^ the incumbency of such bishop, chief priest, or presiding Met 
I ^^^X^ is i-e<|uiied by the rules, regulations, or disciphne of snch de- 
^nomination, society, or church to be filled, which statements 
shall be verified by atlidavit; and for proof of the appoint- 
ment or election of ^uch bishop, chief priest, or presidis)* 
elder, or of any succeeding incumhent of such corporation, it 
shall be sufficient to recoid, with the clerk of the ooonty ii 



117 R£L1G10US, ETC., COBPOBATION9. | 608 

which Bach bisnop, chief priest, or prefliding elder resides, th« 
original or a copy of his comniission or certificate, or letters 
of ekction or appointment, duly attested : pwovidedj all pro|> 
#rty held by snch bishop, chief priest, or presiding elder sluul 
be in trust for the use, purpose, and behoof of his religions 
denomination, society, or church. The limitation in section 
<iv6 hundred and ninety-five shall not apply to corporations 
formed under this section when the land is hold or ased fof 
churches, hospitals, schools, colleges, orphan asylums, parson- 
ages, or cemetery purposes. Any judge of the Superior Court 
in the couuty in which any incorporation is formed under this 
chapter shall at all times have access to the books of such in* 
corporation. Any corporation sole heretofore organized and 
tsxi^rliig under the laws of this State may elect to continue irs 
existence under this act by filing a certificate to that effect un- 
der its corporate seal and the hacd of its incumbent, or 
amended articles of incorporation in the form required bv the 
preceding section, as prescribed by section two hundred and 
eiyhty-seven (287) of the Civil Code; and from and after the 
iiliiig of such certificate or amended articles, such corporation 
shall be entitled to the privileges and subject to the duties, 11 a- 
^ities, and provisions of this act expressed. [In effect ApriJ 
S 1880.] 58 Cftl. 8. 

§ 603. Whenever the regulations, rules, or discipline of any 
church or religious society require, for the administration of 
the temporalities thereof, or for the management of the prop- 
erty or estate thereof, any diocese, synod, or district organiza- 
tion of such church or religious society may elect Directors and 
become an incorporation in the manner prescril>ed in this title, 
and with all the powers and duties, and for the uses and pur- 
poses in this title provided for benevolent or religious incorpo- 
ra ions, and subject to all the conditions, limitations, and pro- 
visions in Said title prescribed, except as otherwise provided in 
this section ; provided, that Directors of such incorporation 
may be elected, and that the by-laws for its government may 
be made and amended by the convention, synod, or other 
representative body of such church or religious society, in and 
for such district, in accordance with the constitution." by-laws, 
discipline, or regulation thereof, at any regular meeting, or 
special meeting called for that purpose ; and, prorided, the 
certificate of incorporMtion and of the election of Directors to 
be filed shall be sufficiently signed and attested by the signa- 
ture of the presiding officerand Secretary of the representative 
tonvention, synod, or other such body, In which such election 



§604 RELIGIOUS, ETC., CORPORATIONS. 118 

is held ; and, provided, all property held by such incorporation 
shall be intrust for the use, benefit, and purpose of the church 
or religious society by and for which such incorporation was 
formed, and in and of which such diocese, synod, or other dis- 
trict is an organized or constituent part; and ihat the limita- 
tion in section five hundred and ninety-five shall not apply to 
corporations formed under this section, when the land is ht-ld 
or used for churches, hospitals, schools, colleges, asylums, par- 
sonages, or cemetery purposes. [Approved March 12, 1885.] 

§ 604. Any church or other religious association in this 
State, composed of two or more constituent parishes, missions, 
congregations, or societies, having a common convention, 
synod, council, or other representative legislative body, may 
be incorporated by such representative body under this part 
and subject to the provisions of this title, except as otherwise 
provided in this section. The representative body of such 
religious association electing to incorporate the same shall de- 
termine the name of the proposed corporation, the purpose for 
which it is formed, the place where its principal business is to 
be transacted, the term for which it is to exist, and the number 
of its directors, and shall elect its directors for the first year. 
The articles of incorporation need only be signed and ac- 
knowledged by the presiding officer and secretary of such rep- 
resentative body, and in addition to the requirements of sec- 
tion two hundred and ninety, shall set forth the proceedings 
herein prescribed for said representative body, and that tho 
same were duly h^d in accordance with thecousiitution, canon, 
rules, or regulations governing the other proceedings of said 
representative body, and the liine and place thereof. The di- 
rectors of such corporation shall be elected annually by the 
representative body of the association. The representative 
body providing for such incorporation shall frame by-laws for 
the corporation, and such by-laws may l)e repealed or amended, 
or new by-laws may be adopted by any subsequent representa- 
tive body in accordance with the constitution, canons, rules, 
or regulations governing the other proceedings of such repre- 
sentative body. Such corporation may hold and administer 
not only the common property, funds, and money of such a*- 
sociation, but also the property, funds, and money of any con- 
stituent parish, mission, congregation, or society. The limita- 
tion in section five hundred and ninety-five shall not apply to 
corporations formed under this section when the land is held 
or used for churches, hospitals, schools, colleges, asylums, par- 
sonages, or cemetery purposes, ((n etfect March 11, 1887. J 



119 CEMETERY CORPORATIONS. §§ 608-610 

TITLE XIII. 
CEMETERY CORPORATIONS. 

SlonOM 008. now 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 dig 

posed of. 

611. May issue bonds to pay for grounds. Proceeds of salM 

how disposed of. 

612. May take and hold property or use income thereof, how. 
618. Interments in lot, and effect thereof. Transfer of rlghti 

only made, how. 
614. Lot owners previous to purchase to he members of the eov> 
poration. 

§ 608. Corporations organized to establish and maintain 
cemeteries may take bj purchase, donation, or devise, land, 
not exceeding three hundred and twenty acres in extent, in 
the county wherein their articles of incorporation are filed, to 

held and occupied exclusively as a cemetery for the burial 






{vof the dead. The lands must be surveyed and subdivided into 
^ lots or plats, avenues, and walks, under order of the direo- 
^ tors, and a mnp thereof filed in the olhce of the recorder of the 



/ tounty wherein the lands are situated. Thereafter, upon such 

Ny^ terms and subject to such conditions and restrictions, to be in« 

^\»erted in the conveyances, as the by-laws or directors may 

prescribe, the directors may sell and convey the lots or plati 

Id purchasers. 

§ 609. Every person of full age who is proprietor of a lot 
OT plat in the cemetery of the corporation, containing not less 
than two hundred square feet of land, or, if there be more 
than one proprietor of any such lot, then such of the proprie- 
fcor.s as the majority of joint proprietors designate, may, in 
Dcrson or by proxy, cast one vote at all elections had by th« 
orporation for directors or any other purpose, and is eligibli 
tA) any office of the corporation. At each annual meeting oi 
election, the directors must make a report to the proprietors 
' of all their doings, and of the management and condition of 
the property and. concerns of the corporation. 

§ 610. Such corporations may hold personal property to 
an amount not exceeding five thousand dollars, in addition to 
the surplus remaining from the sales of lots or plats after the 
payments required in the succeeding section. Such surplus 
must be disposed of in the improvement, embellishment, and 



§§611-613 CEMETEUT CORPORATIONS. 120 

preservation of the cemetery, and paying incidental expenses 
of the corporation, and in no other manner. 

§ 611. Such corporations may issue their bonds, bearing 
interest not exceed in «^ twelve percent, per annum, for the pur- 
chase 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 
feast every three months to the payment of the bonds and in- 
terest Such corporations may also agree with the person ar 
persons from whom cemetery lands shall be purchased, to pay 
for such lands, as the purchase price thereof, any specified 
share or portion, not exceedin<; one half, of the proceeds of ail 
sales of lots or plats made from such lands : such payments 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 
bv such association, or prescribed in the agreement betweea 
tne cemetery and the person or persons from whom the ceni> 
vtery lands were purchased, shall not be changed without the 
wi'itten consent of a majority in interest of the persons from 
whom such lands were purchased, their heirs, representativefl, 
and assigns. [In effect April 16, 1880.] 

§ 612. Cemetery corporations may take and hold any 
property bequeathed or given them on trust, or the lots, plate, 
or gravtjs thereon, for the specific purpose of embellishinsr or 
Improving the grounds, avenues, or superstructures of their 
cemeteries, to use the income thereof, for the erection, preser- 
vation, or repair of monuments therein, or for any other pur- 
pose or design consistent ^ith the objects of the corporation. 

§ 613. Whenever an interment is made in any lot or plat 
transferred to individual owners by the corporation the same 
thereby becomes forever inalienable, and descends in repnlar 
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 })urchase ; nor must any 
one be buried in any such lot or plat not at the time owning an 
interest therein, or who is not a relative of such owner, or of 
his wife, except by consent of all jointly interested ; provided, 
however, that when all the bodies buried in any such lot shall 



121 AGRICULTURAL FAIR CORPORATIONS. §§ 614-621 

have been removed therefrom, with the consient of the owners 
of such lot, it ^hall be lawful for the then owners of sucli lot 
to sell and transfer the same by deed; and any sncli sale an<l 
transfer heretofore made is hereby declared to be valid and 
effectual to transfer the title to the purchaser, any law to the 
contrary thereof notwithstanding. [In effect Feb. 10, 1885.] 

§ 614. When uronnds purchased or otherwise acquired lor 
cemeteiy puqwses have been previously used as a burial 
ground, those who are lot owners at the time of the purchase 
continue to own the same, and are members of the corporation, 
with all the privileges a purchase of a lot from the corpora- 
tion confers. 

§ 615. Cemetery corporations may sell lands held by 
them upon obtaining an order for that purpose from the Su- 
perior Court of the county where the lands are situated. Be- 
fore 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 corporation that such lands be sold. The 
application must be made by petition, and any member of the 
corporation may oppose the granting of the order by affidavit 
or otherwise. [In effect March 4, 1889.] 

TITLE XIV. 

AGRICULTURAL FAIR CORPORA- 
TIONS. 

BBonoR 620. May acquire and hold real estate, bow much. 

621. Shall not contract debts qr liabilities exceeding unonat ia 

treasury. 

622. Not for profit. May fix fee, &c., for membership. 

§ 620. Agricultural Fair Corporations nmy purchase, hold, 
or lease any quantity of land, not exceeding in the aggregate 
9ne hundred and sixty acres, with such buildings and improve- 
ments as may be erected thereon, and may sell, lease, or other- 
wise dispose of the same, at pleasure This real estate must be 
held for the purpose of erecting buildings and otlur improve- 
ments thereon, to promote and encourage agriculture, liorti 
rultore, mechanics, manufactures, stock raising, and goneraJ 
iomestic industry. 

^621. Such corooration must not contract any debts or li» 



§§ 622-628 GAS CORPORATIONS. 122 

bilities in excess of the amount of money in the treasury at ifte 
time of contract, except for the ])urchase of real ])ropertj, 
for w hich tliey may create a debt not exceeding five thousand 
dollars, secured by mortgage on the property of the corpora- 
••ion. The directors who vote therefor are personally liable for 
any debt contracted or incurred in violation of this section. 

§ 622. Agricultural Fair Corporations are not conducted 
for profit, and have no capital stock or income other than thai 
derived from charges to exhibitors and fees for membership, 
w^hich charges, together with the term of membership and mode 
of acquiring the same, must be provided for in their by-lawa. 
Such fees must never be greater than to niise sufficient rev 
enue to discharge the debt for the real estate and the im- 
provements thereon, and to defray the current expenses of 
(airs. 



TITLE XV. 
GAS CORPORATION?. 

Bionov 628. Corporations to obtain privilege from city or town uid om 
meters proved by the inspector. 

629. Oas to be supplied on written application. Damages foi 

refusal.^ % » 

630. When corporations may refuse to supply gas. ^ 

631. Agent of corporation may inspect meters. 

632. When persons neglect to pay, gas may be shut off 

§ 628, No corporation hereafter formed must supply any city 
or town with gas, or lay down mains or pii)es for that purpose 
in the streets or alleys thereof, without permission from the 
city or towu authorities, granted in pursuance of the piovisions 
of the Political Code or of statutes expressly continued by such 
Code. Nor must such corporation furnish or use any gas-meter 
which has not been proved and sealed hy the inspector oi 
l^as-metcrs. 

§ 629. Upon the application in writing of the owner or oc 
cupaut of any building or premises distant not more than one 
hundred feet from any mam of the corporation, and payment 
by the ^|^ant of all money due from him, the corporation 
must sifl^ly gas as required for such building or premises, and 
•annot refuse on the ground of any indebtedness of any f< nrer 



122a LAND AND BUILDING CORPORATIONS. §§ 630-682 

owner or occupant thereof, unless the applicant has nnde/taken 
to pay the same. If, for the space of ten days after such ap- 
plication, the corporation refuses or neglects to supply the gas 
required, it must pay to the applicant the sum of fifty dollar* 
as liquidated damages, and five dollars a day as liquidated 
iamages for every day such refusal or neglect continues theie* 
ifter. 

§ 630. No corporation is required to lay serrice pipe when 
serious obstacles exist to laying it, unless the applicant, if re» 
quired, deposits in adyanre, with the corporation, a eam ol 
money sntlicient to pay the cost of laying such service pipe, or 
his proportion thereof. 

§ 631. Any agent of a gas corporation exhibiting written 
authority, signed by the president or secretary thereof for 
such pui-pose, may enter any building or premises lighted with 
gas sup])lie<l by such corporation, to insi^ect the gas-meters 
therein, to ascertain the quantity of prns supplied or consumed. 
Every owner or occupant of such building-^ who hinders or pre- 
vents such entry or inspection must ])ay to the corporation the 
Bum of fifty dollars as liquidated damages. 

§ 632. All gas corporations may shut off the supply of gas 
ftt)m any person who neglects or refuses to p&Y ^^^ *^® P^ 
supplied, or the rent for any meter, pipes, or ntimgs proyided 
by the corporation as required by his contract; and for the 
purpose of shutting off the gas in such case any employee of 
the corporation may enter the building or premises of such 
person, between the hours of eight o'clock in the forenoon and 
six o'clock in the afternoon of any day, and remove therefrom 
any property of the corporation used in supplying gas. 



TITLE XVI. 

LAND AND BUILDING CORPORA 
TIONS. 

llcnON 639. How organized. 

640. May borrow money. ^^^^ 

641. Powers and object ol the corporation. '^^p 

642. May insure the lives of members and debtors. 
648. What real estate may be owned at any one tim* 



< ^ 



T/rJ^2ZJ' ''£uJU^^^$---'^r:2. 



§§ 680-644 LAND AND BUILDING CORPORJLTIONS. 1224 

046. Seorotary mtut make anniial statement, and pnblkh wmi. 

64& UabUity of shareholden for debts. ( Repealed. ) 

647. CoBsoUdfttion and transfer of corpondon basineas and proy 

erty. 
646. Married women and minois. (Repealed). 

§ 639. Corporations organized for the erection of buQd- 
In^ and making other improvements on real property may 
raise funds in shares not exceeding two hundred dollars each^ 
pajable in periodical inRtalments. Such bodies are known ai 
land and building corporations, and may be organized with 
«r without a ca]>ital stock. [In effect July 1, 1874.| 

§ 640. Any such corporation may borrow money for the 
purpose of carrying out its objects, and may give as security 
therefor its shares or mortgage upon its real estate. 



§ 641. Any such corporation may purchase real 
and erect buildings for its members, and make loans to its 
members for the purpose of aiding them in sicquiring and 
improving real estate. Such loan must in all cases be se- 
cured on such real estate. 

§ 642. Such corporation may insure, in some life insur- 
ance company incorporated under the laws of this State, the 
lives of its members and debtors. In case of the death of a 
debtor or member so insured, the amount recovered on the 
policy must be applied to extinguish the indebtedness, in- 
cluding the premium paid, and the residue, if any, must be 
paid to the legal representatives of the decedent. 

§ 643. Any such corporation may purchase, hold, and 
convey real estate, as follows : 

1. The lot and building in which the business of the cor- 
poration is carried on, the cost of which must not exceed 
twenty thousand dollars ; 

2. Such as may from time to time be necessary to supply 
the wants of its membei-s, the cost of which, held unallottea 
to the members thereof at any one time, must not exceed the 
sum of one hundred thou.sand dollars ; 

3. Such as shall have been mortgaged, pledged, or con- 
reyed to it in trust, to secure money loaned, or to secure the 
purchase price thereof in pursuance of the regular business of 
Um corporation. 

f 644. The by-laws of such corporations must specify the 
vn 'tint of the periodical subscriptions or pa/monts to be 



122c LAND AND BUILDING CORPORATIONS. §§ 945-648 

made by each member, the time acd manner in which rach 
piyments are to be made ; the fines and forfeiture for default • 
the time and manner of election of directors and other of9 
cers, and their terms of office ; the manner in which the 
real estate may be distributed, allotted, or sold to its mem- 
bers; the terras and conditions upon which loans may be 
ioade to its members and by them repaid to the corporation ; 
the manner in which a person may become and cease to be a 
member; the conditions on which members may withdraw 
from the corporation, and Ihe provisions for the payment to 
withdrawing members of the sums of money due to them aris* 
ing from subscriptions or payments, and the proportion of the 
profits such withdrawing members may receive on Mrith- 
drawal. 

§ 645. The secretary of any such coi-poration must, once 
in each year during the existence of the corporation, prepare 
a full and explicit statement of the financial affairs thereof, 
comprising a balance sheet, statements of receipts and expen- 
ditures, profit and loss, and assets and liabilities, which must 
be audited and verified by two competent persons (not di- 
rectors), elected by the general body of shareholders, and be 
countersigned by the president and secretary. A copy of such 
statement must be printed and circulated among the mem- 
bers, and appear immediately after the annual meeting of the 
corporation daily at least one week, -or weekly at least four 
weeks, in one or more newspapers published at the place of 
the principal business of the corporation. 

§ 646 of said Code is repealed. [In effect July 1, 1874.] 

§ 647. Any two or more such corporations may nnite and 
become incorporated in one bod^, with or without any dissolu- 
tion or division of the funds of'^such corporation, or either of 
them ; or any such corporation may transfer its engagements, 
fands, and property to any other such corporation," upon such 
terms as may be agreed upon by two thirds of the members of 
each of such bodies present at ^neral meetings of the mem- 
bers, convened for the purpose by notice stating the object of 
the meeting, sent through the post-office to everj^member, 
and by general notice, appearing daily at least one week, or 
weekly at least two weeks, in some newspaper |)ublished at 
the place of the principal business of the corporation ; but no 
such transfer can prejudice any right of any creditor of eithet 
sorporation. 

« 648 of sa'd Code is repealed. [In effect July 1, 1874.; 



649-650 COLLEGES, SEMINARIES OF LEARNING. I22d 



TITLE XVII. 

COLLEGES AND SEMINARIES OF 
LEARNING. 

9E0TI0N 649. Articles of incorporation. 

650. Board of Trustees. 

651. Existing institutions. 

§ 649. Any number of persons Vho may desire to establish 
n college or seminary of learaiug may incorporute themselves 
as provided in this part, except thai iii lieu of the requirements 
of section twohundred and ninety, tlie articles of incorporation 
shall contain : 

1. The name of the corporation. 

2. The purpose for which it is organized. 

3. The place where the college or seminary is to be con- 
ducted. 

4. The number of its Trustees, which shall not be less than 
five nor more than fifteen, and the names and residences of 
the Trustees. The term for which the Trustees named and 
their successor^are to hold office may also be stated. If it is 
desired that the Trustees, or any portion of them, shall belong 
to any organization, society, or church, such limitation shall 
be s fated. 

5. The names of those who have subscribed money or prop- 
erty to assist in founding the seminary or college, together with 
the amount of money and description of property sub&cribed. 
[In effect March 14, 1885.] 

§ 650. Unless otherwise provided in the articles of incorpo- 
ration the Board of Trustees shall, as soon as organized, so 
classify themselves that one fifth of their number sliall go out 
of office every year, and thereafter the Trustees shall hold office 
for five years. A majority of the Trustees sliall constitute a 
quorum for the transaction of business, and the office of the 
corporation shall be at the college or seminary. 

The Trustees shall have poVer : 

1. To elect, by ballot, annually one of their number as 
President of the Board. 

2. Upon the death, removal out of the State, or other vacancy 
in the office, or expiration of the term of any Trustee, to elect 
another in his place; provided, that where there are graduat s 
of the institution, such graduates may, under such rules ns the 
Board shall prescribe, nominate persons to fill vacancies in the 



1 



1226 COLLEGES AND SEMINARIES OF LEARNING. § 661 

Board of Trustees. Snch nominations shall be considered by 
the Board, but it may,ri ject any or all Huch^ouiiuatiuus, anil 
of its owu"viotion appoint otti^rts. ^ ^k 

3. To elect add tioual Trusteis; provided, fne whole ni^i- * 
ber elected shall never exceed fifteen at any one time. 

4. To declare vacant the seat of any Trur-t. e who shall ab- 
sent himself from ei>;ht succeeding mceiiDps of the Board. 

5. To recei\e and hold, by ]<urcliase, gift, devise, bequest, 
or grant, real or personal property for educjitioual purposes 
connected with the corporaiiou, or* for the beuetit of the insti> 
tution. 

6. To sell, mortgage, lease, and otherwise use and dispose of 
the property of the corporation iu such mauntr as they shall 
deem most conducive to the prosj:)erity of tho corporation. 

7. To dk^ct and prescribe the course of study and di.«*cii line 
to be observed in the college or seminary. 

8. To appoint a President of the coflege or seminar}', who 
shall hold his office during the pleasure of the Trus:ees. 

9. To appoint such professors, tutors, and other offieers as 
they shall deem necessary, who shall hold their offices during 
the pleasure of the Trustees. 

10. To grant such literaiy honors as are usually granted by 
any universitv, college, or seminary of learning in the United 
States, and m testimony thereof to give suitable dijdomas 
under their seal, and the signature of t;uch officers of the cor- 
poration and the institution as they shall deem exped ent. 

11. To fix salaries of the President, professors, and other 
officers and employees of the college or seminary. 

12. To make all by-laws and ordinances necessary and proper 
to carry into effect the preceding powers and necessary to a<l- 
vauce the interests of the college or seminary ; provided, that 
no by-laws or ordinance shall conflict with the Constitution or 
laws of the United States, or of this State. [Iu efiect March 
14, 1885.J 

§ 651. Any educational corporation, or body claiming to be 
such, now existing, may, by a unanimous vote of those of its 
Tru.stees 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 franchi>es to a corporation organ- 
ized under this title. The fact that due notice of the meeting 
was given to each Trustee shall be conclusively proven by the 
entries in the minutes of the corporation or body making the 
conveyance. Said minutes shall be certified to be correct by 
the President and Secretary. [In effect March 14, 1885.] 



MANUSCRIPT NOTES. 122/* 



Cf^^(U/^yfr~^0 



,y Google 



DIVISION SECOND. 



X Part I. PROPERTY IN GENERAL, §§ 654- 
749. 
n. REAL OR IMMOVABLE PROP- 

ERTY, §§ 755-940. 
IIL PERSONAL OR MOVABLE PROP- 

ERTY, §§ 953-994. 
IV. ACQUISITION OF PROPERTY, fi 
1000-1422. 



Digitized by VjOOQIC 



Digitized by VjOOQIC 



PART L 



PROPERTY IN GENERAL. 

Tmx I. Natitrb of Propertt, §§ 654-MIL 
II. Ownership, §§ 669-742. 
III. General Definitions, §§ 7i8>749. 



TITLE I. 

NATURE OF PROPERTY. 

Bionoii 664. Property, what 

666. In what property may exiit. 

666. Wild animals. 

667. Real and personal. 

668. Real property. 

669. Land. 

660. Fixtures. 

661. Fixtures atteehed to minef. 
062. Appurtenances. 

663. Personal property. 

§ 654. Tub ownership of a thing is the ri^^ht of one (ft 
more persons to possess and use it to the exclusion of othen. 
In this Code, the thmg of which there maj be ownership i§ 
fal'ed propel ty. 

§ 655. There maybe ownership of all inanimate things 
which are cipable of appropriation or of manual deliyery ; cf 
all domestic animals ; of all obligations ; of such products of 
labor or skill as the composition of an author, the good will of 
a business, trade-marks and signs, and of rights created or 
granted by statute. 

Counterfeiting a trade-mark, a misdemeanor. Penal Code, % SCO. 

§ 656. Animals wild by nature are the subjects of owner 
•hip, while living, only when on the land of the person claim 
9 



f§ 657-663 NATUBB OF PBOPERTT. .126 

hag them, or when tamed, or taken and held in the poosesfioa, 
or disabled and immediately pursued. 

§ 657. Property is either: 
1. Keal or immovable ; or, 
*>. Personal or movable. 

§ 658. Beal or immovable property consists of : 

1. Land; 

S. That which is affixed to land ; 

8. That which is incidental or appurtenant to land ; 

4. That which is immovable by law. 

§ 669. Land is the solid material of the earth, whatoTor 
mav be the ingredients of which it is composed, whether soil^ 
rock, or other substance. 

§ 660. A thing is deemed to be affixed to land when it in 
attached to it by roots, as in the case of trees, v^ines, or shrubs , 
or imbedded in it, as in the case of walls; or permanently 
resting upon it, as in the case of buildings ; or permanently 
attached to what is thus permanent, as by means of cement, 
plaster, nails, bolts, or screws. 

51 Cal. 696 ; 52 Cal. 895 ; 66 Cal. 85 ; 67 Cal. 3 ; 68 CaL 126. 

§ 661. Sluice-boxes, flumes, hose, pipes, railway tracks, 
cars, blacksmith shops, mills, and all other machinery or tools 
nsed in working or developing a mine, are to be deemed affixed 
to the mine. 

§ 662. A thing is deemed to be incidental or appurtenant 
to land when it is by right used with the land for its benefit ; 
as in the case of a way, or watercourse, or of a passage fol 
light, air, or heat from or across the land of another. 

62 CaL 896 ; 66 Cal. la 

i 66S. Every kind of property that is not real is personal 



Digitized by VjOOQIC 



197 owvKRtBip. !§66( 67a 

TITLE n. 
OWNERSHIP. 

&umB I. OwNisRs, §§ 669-672. 

II. Modifications of OwmEiisnip, {{ 679-711^ 
III. Rights of Owners, §§ 732-7^. 
iV. Tk&MUCATIOH of OWNKBSHIF, §§ 731^748. 



CHAPTER L . 

OWNBBS. 
609. Owner. 

670. Property of the itate. 

671. Who may own property. 

672. Aliens inheriting most elilm within flTe jmn, 

{669. All property has an owner, whether that owner fa 
the State, and the property public, or the owner an individ- 
ual, and the property private. The State may also hold pro]> 
erty as a private proprietor. 

§ 670. The State is the owner of all land below tide- 
water, and below ordinary high*water mark, bordering upon 
tide- water within the State; of all land below the water of a 
navigable lake or stream ; of all property lawfully appropri- 
ated' by it to its own use ; of all property dedicated to the 
State, and all prof)erty of which there is no other owner. [!■ 
vffect July 1,1874.] 

Proiierty of the State. Pol. Code, $$ 4(M4. 

§ 671. Any person, whether citizen or alien, may take 
bold, and - dispose of property, real or personal, within thif 
State, lln effect July I, 1874.] 

§ 672. If a non-resident alien takes by succession, he mnsi 
appear and claim the property within five years from the time 
of 'succession, or be barred. The property in such case is 
disposed of as provide<l in Title VUI., Part III., Code of Clvi/ 
l*rocednrc |§§ 120^1272.| Pr^oalf> 

*"'* ijigitized by VjOOV? IC 



|§ 678-679 owMBssHip. lii 

CHAPTER II. 
MODIFICATIONS OF OWNERSHIP. 

Amnou I. Interests in Property, §§ 678-708. 

II. Conditions of Ownership, §§ 707-711. 

III. Restraints upon Alibnation, §§ 71&-71& 

IV. Accumulations, §§ 722-726. 

ARTICLE I. 

INTERESTS IN PROPERTY. 

BBOnON 678. OTimenthip, absolute or qualilMl. 

679. When absolute. 

680. A\lien qualified. 

681. Several ownership, what 

682. Owuernhip of several persons. 

683. Joint interest, what. 

684. Partnership interest, what. 
686. Interest iu common, what. 

686. What interests are in common. 

687. Community property. 

688. Interestiii as to time. 

689. Present Interest, what. 
6.9U. Future interest, what 

691. Perpetual Interest, what. 

692. Limited interest, what. 

693. Kinds of future iuteresta. 

694. Vested interests. 

695. Contingent interests. 

696. Two or more future interests. 

637. Certain future interests not to be Told. 

698. Posthumous children. 

699. Qualities of expectant estates. 

700. Same. 

701. Interests in real property. 

702. Same. 

703. What future interests are recognized. 

§ 678. The ownership of property Is either : 

1. Absolute; or, 

2. Qualified. 

§ 679. The ownership of property is abpolnce when a sm 
^'•« piTHon has the ah.-^olute doiniuiou ovlt it, and may use it OT 
iv.ji|M)»e of it accurdinjj to his pleasure, subject only to genera/ 

*^^ ugitized by Google 



29 owKBRsmr. §§ 680-689 

§ 680. The ownership of property is qualified : 

1. When it is shared with one or more persons ; 

2. When the time of enjoyment is deferred or limited ; 
S. When the use is restricted. 

§ 681. .The ownership of property hy a single person if 
flesiguated as a sole or several ownership. 

§ 682. The ownership of property by several persons ii 
either : 

1 . Of joint interests ; 

2. Of partnership interests ; 

3. Of interests in common ; 

4. Of community interest of husband and wife. 

§ 683. A joint interest is one owned by several persons m 
equal shares, by a title created by a sin^He will or transfer, 
when expressly dechired in the will or transfer to be a joint 
tenancy, or when granted or devised to executors or trustees 
Bs joint tenants. 

§ 684. A partnership interest is one owned by several per- 
sons in partnership, for partnership purposes. 

§ 685. An interest in common is one owned by several 
ptn-son^, not in joint ownership or partnership. 

66 Cal. 209 ; 57 Cal. 180; 58 Cal. 21. 

§ 686. Every interest created in favor of several persons 
ill their own right is an interest in common, unless acquired 
by them in partnershij>, for j)artnership purposes, or unlesa 
declared in its creation to he a joint interest, as provided in 
section 683, or uulesis acquired as community property. 

§ 687. Community ])ro]»erty is pro]>erty acquired by hus- 
band and wife, or either, duriu^r marriage, when not acquired 
Rs the separate property of either. 

§ 688. Tn respect to the time of cujojTnent, an interest ii 
|«t>peny is either : 

1. Present or future ; and, 

2. Terpetual or limited. 

] 689. A present interest entitles the ownei^ to the inune 
liate possession of the property. Jigtizedbyyoogle 



124 44 



S§ 690-701 owvsRSHip. ISO 

§ 690. A fatare interest entitles the owner to the posses- 
■ion of the property onlj at a fhture period. 

§ 691. A perpetnal interest has a duration eqnal to that 
W the property. 

§ 692. A limited interest has a duration less than thai of 
he property. 

f 693. A future interest is either : 
1. Vested; or, 
S. ContingenL 

S 694. A future interest is vested when there is a peraon 
in being who would have a right, defeasible or indefeasible, to 
the immediate possession of the property, upon the ceasing of 
the intermediate or precedent interest. 

§ 696. A future interest is contingent, whilst the person 
in whom, or the event upon which, it is limited to take effect 
remiuns uncertain. 

§ 696. Two or more fhture 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. 

§ 697. A future interest is not void merely because of the 
improbability of the contingency on which it is limited to take 
effect. 

§ 698. When a future interest is limited to successors, 
.'eirs, iMue, or children, posthumous children are entitled 
1 1 take in the same manner as if living at the death of theb 
parent. 

§ 699. Future interests pass by succession, will, and tramh 
for, in the same manner as present interests. 

I 700. A mere possibiliry, such as the expectanc^r of am 
heir apparent, i:i not to be deemed an interest of any kind. 

I 701. In respect to real or immovable property, tlw !»• 
Isresu iDentton(< in fahii> cliapter are denominatiidi estatca 



131 OWHBBSHIP. |§ 702-7 1 1 

and are ipeciallj named and classified in Part IL of this divi- 
sion. 

§ 702. The names and classification of interests in real 
property have only such application to interests in personaS 
property as is in this division of the Code expressly pro- 
vided. 

S 708. No fntnre interest in property is recogfnized by tbi 
\mM, except snch as is defined in this division of the Code. 



ARTICLE II. 

CX>irDITIONS OF OWNERSHIP. 

Bmmow 707. nxing the time of enjoyment 

708. Conditions. 

709. Certain oonditionii precedent void. 

710. Conditions restraining marriage Toid. 

711. Conditions restraining alienation void. 

§ 707. The time when the enjoyment of property is to 
beg^n or end may be determined by computation, or be made 
to depend on events. In the latter case, the enjoyment is said 
to be upon condition. 

§ 708. Conditions are.precedent or subsequent. The former 
fix the beginning, the latter the ending, of the right 

S 709. If a condition precedent requires the performance 
of an act wrong of itself, the instrument containing it is so 
far void, and the right cannot exist. If it requires the per- 
formance of an act not wrong of itself, but otherwise unlaw- 
ful, the instrument takes effect and the condition is void. 

§ 710. Conditions imposing restraints upon marriage, ex- 
cept upon the marriage of a minor, are void ; but this does 
not affect limitations where the intent was not to forbid mar- 
riage, but only to give the use until marriage. [In effect July 
I, 1874.J 

I 711. Conditions restraining alienation, when repngnaaf 
4> the intezeBt created, are void. 

Digitized by VjOOQIC 



iS 716-728 owxEssHir. ISS 

ARTICLE III. 

RESTRAINTS UPON ALIENATION. 

BMTXOir 716. How long it may be suspended. 

716. Future interests void, which suspend power of aUenaikM. 

717. Leases of agricultural land, for over ten years, Told. 
jn^ 718. I.«ase8 of city lots, for over twenty years, void. 

m 536 § 715. The absolute power of alienation cannot be su*- 
^^ pended, by any limitation or couditiou wbiiever, for a longer 
period than during the continuance of the lives of persons m 
being at the creation of tiie limitation or condition, except il 
the single case mentioned in section 772. 
68 Cal. 473, 482. 
'^ § 716. Every future interest is void in its creation which, 

'•S by any j)ossibility, may suspend the absolute power of aliena> 
^'^4 5s2 tion for a longer period than is prescribed in this chapter. 
Such ])Ower of alienation is suspended when there are uo jier- . 
sous in being by whom an absolute interest in possession can 
be conveyed. 

I / § 717. No lease or grant of agricultural land for a longer 
^l*|^period"ihan ten years, in which shall be reserved any rent or 
(Sj'^iervice of any kind, shall be valid. 

§ 718. No lease or grant of any town or city lot, for a 
Ov longer period than twenty years, in which shall be reserved 
«^ any rent or service of any' kind, shall be valid. 

? ARTICLE IV. 

ACCUMULATIONS. 

BkonoH 722. Dispositions of income. 

723. Accumulations, when void. 

724. Accumulatiou of income. * 

725. Other directions, when void in part. 

726. Application of income to support, «&c., of minor 

§ 722. Dispositions of the income of property to accrue 
and to be received at any time subsequent to the execntiun of 
the instrunvent creating such disposition, are governed by the 
-ules prescribed in this title in relation to future interests. 

( 723. AH directions for the accumulation ofthe ioam^ 



133 OWNERSHIP. §1 724-733 

Df property, except such as are allowed hy this title, are 
roid. 

§ 724. An accumulation of the income of property, fof 
the benefit of one or more persons, may be directed by any 
will or transfer in writin": sufficient to pass the property ou" 
of which the fund is to arise, as follows : 

1. If such accumulation is directed t<^ commence on the 
creation of the interest out of which the mcome is to arise, it 
must be made fur the benefit of one or more niinoi-s then in 
being, and terminate at the expiration of their minority; or, 

2. If such accumulation is directed to commence at an? 
time subsequent to the creation of the interest out of which 
the income is to arise, it must commence within the time in 
this title permitted for the vesting of future interests, and dur- 
ing the minority of the beneilciaries, and terminate at the ex- 
piration of such minority, 

68 Cal. 480. 

§ 725. If in either of the cases mentioned in the last sec- 
tion the direction for an airumulatioii is for a longer term 
than during the minority of the beneficiaries, the direction 
only, whether separable or not from other provisions of the 
instrument, is void as respects the time beyond such minor- 
ity. 

§ 726. When a minor for whose benefit an accumulation 
has been directed is destitute of other sufficient means of sup- 
port and education, the proper court, upon application, may 
direct a suitable sum to be applied thereto out of the fond. 



CHAPTER III. 

BIGHTS OF OWNERS. 
f 
bflOnoH 732. Increase of property. 

. 788. In certain cases who entitled to income of piopertj. 

§ 732. The owner of a thing also owns all its produatf 
^id accessions. 

§ 733. When, in consequence of a valid limitation of A 
Aitare interest, there is a suspension of the power of alienatios 
»r of tlie ownership during the continuation of which^ the m 



f§ 439-442 owsTEBSHip. 13i 

come is ondisposed of, and no valid direction for its accnmala- 
tion is g^ven, such iiicome belongs to the persons presnmp 
drely entitled to the next eventual interest. 



CHAPTER IV. 
TERMINATION OF OWNERSHIP. 

Sionoir 789. Fatnx« Interests, when defeated. 

740. Same. 

741. Future interests, when not defeated. 

742. Same. 

§ 739. A future interest, depending on the contingencj of 
the death of any person without successors, heirs, issue, or 
children, is defeated by the biith of a posthumous child <d 
such person, capable of taking by succession. 

§ 740. A future interest may be defeated in any manner 
or by any act or means which the party creating such interest 
provided' for or authorized in the creation thereof; nor is a 
future interest, thus liable to be defeated, to be on that gronnU 
adjudged void in its creation. 

§ 741. No future interest can be defeated or barred by 
any alienation or other act of the owner of the intermediate 
or precedent interest, nor by any destruction of such prece- 
dent interest by forfeiture, surrender, merger, or otherwise, 
except as provided by the next section, or where a forfeiture 
is imposed by statute as a penalty for the violation thereof. 

§ 742. No future interest, valid in its creation, is defeated 
ly the determination of the precedent interest before the hai»- 
pening of the contingency on which the future interest is 
limited to take effect; but should such contingency after- 
wards happen, the future interest takes effect in the eamt 
manner, and to the same extent, as if the precedent interesl 
Vad continued to the same period. 



■Digitized by VjOOQIC 



136 OSmSBAL DBFINITIONS. §f 74d-749 

TITLE m. 

GENERAL DEFINITIONS. 

8sonoir748. Incoin«. wbat. 

749. Time of creation, what. 

§ 748. The income of property, as the term U used in this 
part of the Code, includes the rents and pronts of real prop- 
erty, the interest of money, diyidends upon stock, and other 
produce of personal property. 

I 749. The delivery of the grant, where a limitation, con- 

^^9 dition, or f utnre interest is created hy grant, and the death of 

Csg^ the testator, where it is created hy will, is to be deemed the 

time of the creation of the limitation, condition, or intently 

wiftfain the meaning of this part of the Code. 



,y Google 



PART 11. 



REAL OR IMMOVABLE PROIERTT. 

TiTLB I. General Pkovi8ion8, § 755. 

II. Estates in Heal Property, §§ 761-811. 

III. Rights and Obligations of Owners, §§ 818> 

841. 

IV. Uses and Trusts, §§ 847-871. 
V Powers, §§ 878-940. (Repealed.) 



TITLE L 

GENERAL PROVISIONS. 

Sbction 755. Real property, how gorerned. 

§ 755. Real property within this State is goyerned by tba 
law of this State, except where the title is in the United 
States. [In effect July 1, 1874.] 



TITLE IL 

ESTATES IN REAL PROPERTY. 

Chafter I. Estates IN General, §§ 761-781. 

II. Tkkmination of Estates, §§ 789-793, 
III. Servitudes, §§ 801-811. 



CHAPTER L 
ESTATES IN GENERAL. 
tlonoH 761. Enumeration of eotateii. 
762. What estate a fee Dimple. 

IS CondiWonal fees and estateb taU aboUihi4yo|p 
764. Certain remalndera yalld. ^8 



•37 ESTATES IN REAL PROIBRTT. §§ 761-766 

Swmoir 765. Treeholdfl. Chattels real. Chattel hitarMte. 

766. Estates for life of a third person, when a freehold, Aa. 

767. Fature estates, what. 

768. Reveraions. 

769. Remainders. 

770. Limitations of chattels reaL 

771. Suspension by trust. 

772. Contingent remainder in fee 

773. Remainders, future and contingent estates, how ewattd. 

774. limitation of succesfiiye estates for life. 

775. Remainder upon estates for life of third pcnon. 

776. Contingent remainder on a term of jeais. 

777. Remainder of estates for life. 

778. Remainder upon a contingency. 

779. Heirs of a tenant for life, when to take aa pnrchaMit. 

780. Construction of certain remainders. 
78L Effect of power of appointment. 

§ 761. Estates in real property, in respect to the dnmtloa 
of their enjoyment, are either : 

1. Estates of inheritance or perpetual estates; 

2. Estates for life ; 

3. Estates for years ; or, 

4. Estates at wilL 

§ 762. Every estate of inheritance is a fee, and erery such 
estate, when not defeasible or conditional, is a fee simple, or 
an absolute fee. [In effect July I, 1874.] 

§ 763. Estates tail are abolished, and every estate which 
would be at common law adjiidi^ed to be a fee tail is a fee sim- 
ple ; and if no valid remaioder is limited thereon, is a fee sim- 
ple absolute. 

§ 764. Where a remainder in fee is limited upon any es- 
tate, which would by the common law be adjudged a fee tail, 
such remainder is valid as a contingent limitation upon a fee, 
and vests in possession on the death of the first taker, without 
issue living at the time of his death. 

§ 765. Estates of inheritance and for life are called estater 
of freehold ; estates for years are chattels real ; and estates at 
will are chattel interests, but a: e not liable as such to sale on 
execution. 

§ 766. An estate, during the life of a third person, whethel 
fimited to heirs or otherwise, is a freehold. [In effect July 1« 
W4.1 



If 767-773 ESTATES IN HEAL PROFEBTT. 138 

§ 767. A future estate may be limited by the act of the 
party to commence in possession at a future day, either with- 
out the intervention of a precedent estate, or on the termina- 
tion, by lapse of time or otherwise, of a precedent estlite 
created at the same time. 

49 Gal. 874. 

§ 768. A reversion is the residue of an estate left by oper- 
ation of law in the grantor or his successors, or in the success- 
ors of a testator, commencing in possession on the determina- 
tion of a particular estate granted or devised. 

§ 769. When a future estate, other than a reversion, is de- 
pendent on a precedent estate, it may be called a remainder, 
and may be created and transferred by that name. 

§ 770. The absolute ownership of a term of years cannot 
be suspended for a longer penod than the absolute power of 
alienation can be suspended in respect to a fee. [In efib«t 
July 1, 1874.] 

771 § 771. The suspension of all power to alienate the subject 

^-Zih^ of a trust, otiier 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. 715. 

58 Cal. 481. 

§ 772. A contingent remainder in fee may be created on 
a prior remainder in fee, to take effect in the event that the 
persons to whom the first remainder is limited die^ under the 
age of twenty-one years, or upon any other contingency by 
which the estate of such persons may be determincwl before 
they attain majority. 

58 Cal. 4<4. 

§ 773. Subject to the rules of this title, and of Part I. of 
this division, a freehold estate, as well as a chattel real, may 
t.e created to commence at a future day; an estate for lire 
may be created in a term of years, and a remainder limited 
thereon ; a remainder of a freehold or chattel real, either cou- 
tin^ent or vested, may be created, expectant on the determi 
nation of a term of years ; and a fee may be limited on a fee 
a^n a contingency, which, if it should occur^ must happei 
mthin the period prescribed in this title. 

ugitized by Google 



39 ESTATES IK REAL PBOPEBTT. §§ 774-781 

§ 774. Snccessire estates for life cannot be limited, except 
to persons in being at the creation thereof, and all life estates 
lubsequent to those of persons in being are void ; and npon 
the death of those persons the remainder, if valid in its crea- 
tion, takes effect in the same manner as if no other life estate 
had been created. [In effect Jnlj 1, 1874.] 

§ 775. No remainder can be created npon snccessire e*> 
tates for life, provided for in the preceding section, unless snch 
remainder is m fee ; nor can a remainder be created opon such 
estate in a term for years, unless it is for the whole residaa ol 
such term. [In effect July 1, 1874.] 

§ 776. A contingent remainder cannot be created on a 
term of years, unless the nature of the contingency on whicli 
it is limited is such that the remainder must vest in interest 
daring the continuance or at the termination of lives in being 
at the creation of such remainder. 

§ 777. No estate for life can be limited as a remainder on a 
term of years, except to a person in being at the creation of 
Buch estate. 

§ 778. A remainder may be limited on a contingency which, 
in case it should happen, will operate to abridge or determine 
the precedent estate ; and every such remainder is to be deemed 
a conditional limitation. 

§ 779. When a remainder is limited to the heirs, or heirs of 
the body, of a person to whom a life estate in the same 
property is given, the persons who, on the termination of the 
life estate, are the successors or heirs of the body of the owner 
for life, are entitled to take by virtue of the remainder so 
limited to them, and not as mere successors of the owner for 
Uie. 

§ 780. When a remainder on an estate for life or for years 
is not limited on a contingency defeating or avoiding such pre- 
cedent estate, it is to be deemed intended to take effect only on 
Ihe death of the first taker, or the expiration, by lapse of time, 
il such term of years. 

§ 781. A general or special power of appointment does not 
prevent the vesting of a future estate limited to take effect in 
lase such power is not executed. 



p 



II 780-708 BSTATB8 ur rbal pbopbhtt. 14t 

CHAPTER n. 
TERMINATION OP ESTATES. 

BmiOH 799. Tenancy at will may be terminated by notioa. 

790. Effect of notice 

791. Reentry, when and how to be made 

792 Summary proceedings in certain cases pxoTided for 
793. Notice not necessary before action. 

§ 789. A tenancy or other estate at will, however created, 

maj be terminated by the landlord's giving notice in writing 

lo the tenant, in the manner prescribed by section 1162 of the 

I Code of Civil Procedure, to remove from the premises within 

I a period of not less than one month, to be specified iu the' 

notice. 

66 0al. 128. 

§ 790. After such notice has been served, and the period 
specified by such notice has expired, but not before, the 
landlord may reenter, or proceed according to law to recover 
possession. 
66 Cal. 128. 

§ 701. Whenever the right of reentry is given to a grantor 
or lessor in any grant or lease, or otherwise, such reentry may 
be made at any time after the ri^ht has accrued, upon three 
days notice, as provided in sections 1161 and 1162, Code of 
Civil Procedure. 
66 Cal. 128. 

§ 702. Summary proceedings for obtaining possession of 
real property forcibly entered, or forcibly and unlawfully de- 
tained, are provided for in sections 1159 to 1175, both induAive^ 
of the Code of Civil Procedure. 

§ 793. An action for the j)ossc8siou of real property leased 
or granted, with a right of reentry, may be maintained at nnj 
time, in the district court, after the right to reenter hai ao 
crued, without the notice prescribed in section 791 



,y Google 



141 XSTATB8 in BSAL PROrXETT. §§ 801-802 

CHAPTER m. 
8JSBVITUDBS. 

Imitiok 801. Serritudss attached to land. 

802. Servituden not attached to land. 
808. Designation of estates. 

804. By whom grantable. 

805. By whom held. 

806. Extent of serritades. 

807. Apportioning easements. 

808. Rights of owner of future estate. 

809. Actions bj owner and occupant of dominant taoMMalb 

810. Actions by owner of serrlaxt tenement. 

811. How extinguished. 

§ SO 1 • The following land burdens, or senritades upon land, 
may be attached to other land as incidents or appartenaneM^ 
ana are then called eaacments : 

1 . The right of pasture ; 

2. The right of fishing ; 

3. The right of taking game ; 

4. The right of waj ; 

5. The right of taking water, wood, minerals, and otim 
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 ovei; 
or discharging the same upon or oyer land ; 

9. The right of receiving water from or discharging the 
pame upon land ; 

10. The rii^ht of flooding land ; 

11. The right of having water flow without dimination or 
disturbance of any kind ; 

12. The right of using a wall as a party wall ; 

13. The right of receiving more tluin natural support from 
adjacent land or things afiixed thereto ; 

14. The right of having the whole of a division fence main- 
tained by a coterramous owner ; 

15. Tne 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. 
66Cal. 13; 6« Cal. 159, 102. 

§ 802. The following land burdens, or servitudes upon 
hmd, may be granted and held, thougn not attached to land • 

10 jgitizedbyGoOgle 



K 804-817 X8TATB8 nr hbal pbopsbtt. 14f 

1. The right to postuie, and of fishing and taking game ; 

2. The right of a seat in church; 
8. The right of burial ; 

4. The right of taking rente and tolls ; 

5. The ri^ht of way ; 

6. The nght of taking water, wood, minerals^ or oUiet 
Ihings. [In efiect July 1, 1874.] 

§ 803. The land to which an easement is attached is called 
the dominant tenement; the land upon which a burden or 
lervitude is laid is called the serrient tenement. 

§ 804. A servitude can be created only by one who has a 
vested estate in the serrient tenement. 

§ 805. A servitude thereon cannot be held by the owner 
of the servient tenement. 

§ 806. The extent of a servitude is determined by the 
terms of the grant, or the nature of the enjoyment by which 
it was acquir^ 

§ 807. In case of partition of the dominant tenement, the 
burden must be apportioned according to the division of the 
dominant tenement, but not in such a way as to increase the 
burden upon the servient tenement. 

§ 808. The owner of a future estate in a dominant tene- 
ment may use easements attached thereto for the purpoM of 
viewing waste, demanding rent, or removing an obstruction to 
the enjoyment of such easements, although such tenement is 
Kcupied by a tenant. 

§ 809. The owner of any estate in a dominant tenement, 
Dr the occupant of such tenement, mav maintain an action for 
Ihe enforcement of an easement attached thereto. 

§ 810. The owner in fee of a servient tenement may 
maintain an action for the possession of the land, against any 
one unlawfully possessed thereof, though a servitude exiati 
thereon in favor of the public. 

§ 811. A servitude is extinguished: 
1. By the vesting of the right to the servitude and the rkH 
to the servient tenement in the same person ; 



4S BIGHTS, XTC, OJr OWKBX8. ff 818-819 

2. By the destruction of the servient tenement ; 

3. By the performance of any act upon either tenement, bj 
Ihe owner of the servitude, or with his assent, which is incom- 
patible with its nature or exercise ; or, 

4. When the servitude was acquired by enjoyment, by disuse 
thereof by the owner of the servitude for the period prescribed 
lor acquiring title by enjoyment. 



TITLE ni. 



RIGHTS AND OBLIGATIONS OF 
OWNERS. 

Chapter I. Rights of Owners, §§ 818-834. 

II. Obligations of Ownxbs, §§ 84(V^4L 



CHAPTER L 

BIGHTS OF OWNBBS. 

Amnou I. Incidsnts op OwmasHip, $§ 818-887 
n. BoUHSABus, §§ 82^-884. 

ARTICLE I. 

INCIDSNTS OV OWNXBSHIP. 

818. Rights of tenant for life. 

819. Bights of tenant for years, Ac. 

820. Same. 

821. Rights of grantees of rents and reyomioiii. 

822. Liability of assigns of lessee. 

828. Bights of lessees and their assignees, &e. 

824. Remedy on leases for life. 

825. Bent dependent on life. 
dSQ. Bemedy of reversioners, &o 

827. Terms of lease may be changed by notloe. 

f 818. The owner of a life estate may use the land in the 
lame manner as the owner of a fee simple, except that he 
Viust do no act to the injary of the inheritance. 

S 819. A tenant for years or at will, tmless he is a wronip- 



(§ 820*826 BI0HT8, BTO., or ownbbs. 144 

doer by holding over, may ixcapj the bnildings, take the an* 
nual products of the soil, work mines and quarries open at the 
commencement of his tenancy. 

§ 820. A tenant for years or at will has no other rights to 
the property than such as are given to him by the agreement 
or instrument by which his tenancy is acquired, or by the last 
section. 

§ 821. A person to whom any real property is transferred 
or devised, upon which rent has been reserved, or to whom 
any such rent is transferred, is entitled to the same remedies 
for recovery of rent, for non-performance of any of the term/i 
of the leaf^, or for any waste or cause of forfeiture, as his 
grantor or devisor might have had. 

§ 822. Whatever remedies the lessor of any real property 
[hasl against his immediate lessee for the breachof any agree- 
ment in the lease, or for recovery of the possession, he has 
against the assignees of the lessee, for any cause of action ac- 
cruing while they arp such assignees, except where the assign- 
ment is made by way of security for a loan, and is not ac- 
companied by possession of the premises. [La effect July 1, 
1874.] 

§ 823. Whatever remedies the lessee of any real property 
may have against his immediate lessor, for the breach of any 
agreement in the lease, he may have against the assigns of the 
lessor, and the assigns of the lessee may have against the 
lessor and his assigns, except upon covenants against incum- 
brances or relating to the title or possession of the premises. 

§ 824. Kent due upon a lease for life may be recoyered ia 
ihe same manner as upon a lease for years. 

§ 825. Rent dependent on the life of a person may be le- 
ooFcred after as well as before his death. 

§ 826. A person having an estate in fee, in remainder or 
veversion, may maintain an action for any injury done to the 
inheritance, notwithstanding an intervening estate for life oi 
vears, and although, after its commission, his estate is tian» 
ferred, and he has no interest in the property at the 
Dencement of the action. - 

Digitized by VjOOQIC 



U5 BIOHT8, VTO., OF OWKBR8. §§ 827-832 

§ 827. In all leases of lands or tenements, or of anj int«r- 
est therein, from month to month, the landlord may, upon 
living notice in writinjj at least fifteen days before the expira- 
tion of the month, change the terms of the lease, to take effect 
at the expiration of the month. The notice, when sei-ved 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 
ipecified in the notice, if the tenant shall continue to hold th« 
promises after the expiration of the month. [In effect July 
1, 1874.] 

ARTICLE II. 

BOUin>ABI£S. 

BwnoN 829. Rights of owner. 

890. Boundaries by water. 

831. Boundaries by ways. 

832. Lateral and subjacent support. 

838. Trees whose trunks are wholly on land of one. 
834. Line trees. 

§ 829. The owner .of land in fee has the right to the sor- 
face and to everything permanently situated beneath or aboTe 
it. 

§ 830. Except where the grant under which the land is 
held indicates a different intent, the owner of the upland, when 
it borders on tide-water, takes to ordinary high-water mark ; 
when it borders upon a navigable lake or stream, where there 
is no tide, the owner takes to the edge of the lake or stream, 
at low-water mark ; when it borders upon any other water, 
the owner takes to the middle of the lake or stream. [la 
effect July 1,1874.] 

§ 831. An owner of land bounded by a road or street is 
presumed to own to the centre of the way, but the contrary 
wiay be shown. 

§ 832. Each coterminous owner is entitled to the lateral 
uid subjacent support which his land receives from the ad 
fining land, subject to the right of the owner of the adjoining 
Wnd to make proper and usual excavations on the same for 
purposes of construction, on using ordinary care and skill, 
and taking reasonable precautions to sustain the land of th« 
Ithet, and giving preyioos reasonable notice to the other ol 



IS 833-841 178B8 AND TBUSTS. 146 

his intention to make snch excayadons. [In effect July 1, 
1874.J 

§ 833. Trees whose trunks stand wholly upon the land of 
oce owner belong exclusivelj to him, although their roote 
grow into the land of another. 

§ 834. Trees whose trunks stand partly on the land of two 
or more coterminous owners belong to them in common. 



CHAPTER n. 

OBLiaATIONS OF OWNERS. 

SicnoH 840. Duties of t«nant for life 
841. Monuments and fences. 

§ 840. The owner of a life estate must keep the buildings 
«nd fences in repair from ordinary waste, and must pay the 
taxes and other annual charges, and a just proportion of ex- 
traordinary assessments benefiting the whole inheritance. 

§841. Coterminous owners are mutually hound equally 
to maintain : 

1. The boundaries and monuments between them ; 

2. The fences between them, unless one of them chooses to 
let his land lie without fencing ; in which case, if he after- 
wards incloses it, he must refund to the other a just proportion 
of the yalue, at that time, of any division fence made by th« 
latter. 

eiCal 297;56CaL624. 



TITLE IV. 
USES AND TRUSTS. 

iMmOK 847. What uses and trusts may exist. 

848. Right to possession of land creates legal ownexshlp. il* 

pealed.) 
84^. Certain trusts unaffected. (Repealed.) 
ttO. Trustees of estate for use of another take no intanst. (B» 

pealed.) 
an. Pveeeding sections qualified. (Sepeal«d.lQoOQl^ 



47 USBS AND IBU8T8. §§847-867 

lionoK 862. Trast muRt be in writing 

853. Transfer to one for money paid by another. 

854. Rights of creditors. (Repealed.) 

855. Section 853 qualified. (Repealed.) 

856. Purchasers protected. 

857. For what purposes express trusts may be created. 

858. Certaiu devises in trust to be deemed powers. 

859. Profits of land Liable to creditors in certain caMff. 

860. Powers, execution of. 

861. Creation of certain powers not prohibited. (Repealed.) 
862 And land, &c., to descend to persons entitled. (Repealed ) 

863. Trustees of express trusts to hare whole estate 

864. Author of trust may devise, &e. 

865. Title of grantor of trus*, property. 

866. Interests remaining in grantor of express tnurt 

867. Powers over trust of party interested. 

868. Same. 

869. Effect of omitting trust in conveyance 

870. Certain sales, &c., by trustees, void. 

871. When estate of trustee to cease. 

§ 847. Uses and trusts in relation to real property an 
those only which are speciiied in this title. 

58Cal. 848. 

§§ 848, 849, 860, 861 of said Code are repealed. [In 
effect July 1, 1874.] 

§ 862. No trust in relation to real property is valid unlesa 
created or declared ; 

1. By a written instrument, subscribed by the trustee, or by 
liis agent thereto authorized by writing ; 

2. By the instrument under which the trustee claims the es- 
tate afrected ; or, 

3. By operation of law. 

S 863. "When a transfer of real property is made to one 
person, and the consideration thereof is paid by or for an- 
other, a trust is presumed to result in favor of the person by 
•»r for whom such payment is made. [In effect July 1, 1874.] 

§§ 864^ 866 of said Code are repealed. [In effect July 
I 1874.] 

§ 866. No implied or resulting trust can p**ejudice the 
rights of a purchaser or encumbrancer of real property for 
«3ue and without notice of the trust. 

§ 867. Express trusts may be created for any of the fol» 
lowing pur|K)ses : 






|§ 858-863 USES akd tbusts. 149 

1. To sell real property, and apply or dispose of the pitv 
eeeds in accordance with the instrument creating the trust ; 

2. To mortgage or lease real property for the benefit of an- 
nuitants or other legatees, or for the purpose of satisfying 
any charge thereon ; 

3. To receive the rents and profits of real property, and 
pay them to or apply them to the use of any person, whether 
ascertained at the time of the creation of the trust or not, foi 
himself or for his family, during the life of such person, or 
for any shorter term, subject to the rules of Title II. of this 
part; or, 

4. To receive the rents and profits of real property, and to 
accumulate the same for the purposes and within the limits 
prescribed by the same title. [In effect July 1, 1874.1 

68 Cal. 478, 481. 

§ 858. Where a power to sell real property is given to a 
mortgagee, or other encumbrancer, in an instrument intended 
to secure the payment of money, the power is to be deemed 
a part of the security, and vests in any person who, by assign- 
ment, becomes entitled to the money so secured to be paid, 
and may be executed by him whenever the assignment is duly 
acknowledged and recorded. [In effect July 1, 1874.] 

§ 859. Where a trust is created to receive the rents and 
profits of real property, and no valid direction for accumula- 
tion is given, the surplus of such rents and profits, beyond the 
bum that may be necessary tor the education and support of 
tlie person for whose benefit the trust is created, is liable to 
the claims of the creditors of such person, in the same man- 
ner as personal property which cannot be reached by execu- 
tion. 

§ 860. Where a power is vested in several persons, all 
must unite in its execution ; but in case any one or more of 
them is dead, the power may be executed by the survivor at 
'urvivors, unless otherwise prescribed by the terms of th6 
power. [In effect July 1, 1874.] 

§§ 861, 862 of said Code are repealed. [In effect Jolj 
I, 1874.] 

§ 863. Except as hereinafter otherwise provided, everj 
repress trust in real property, valid as such in its creation 
cMtg the whole estate in the trustees, subject only to tha 9xm 



.49 UBE8 AKD TSUSTS. §§864-871 

entioD of the tmst. The beneficiaries take no estate or ia 
tercst in the property, but maj enforce the performance of the 
trust. 

§ 864. Notwithstanding anythint^ contained id the last 
Bei'tion, the author of a trust may, in its creation, prescribe to 
whom the real property to which the trust relates shall belon^^, 
in the ercTit of the failure or termination of the trust, and 
may transfer or devise such property, subject to the execuiioii 
of the trust. 

§ 866. The grantee or devisee of real property subject 
lo a trust acquirt-s a legal estate in the property, as against 
all persons except the trustees and those lawfully claiming 
nnier them. 

866 § 866. Where an express trust is created in relation to 

4*^420 ^^ property, every estate not embraced in the tmst, and not 

otherwise disposed of, is left in the author of the trust or his 

successors. 

§ 867. The beneficiary of a tmst for the receipt of the 
rents and profits. of real property, or for the payment of an 
annuity out of such rents aud profits, may be restrained from 
disposing of his interest in such trust, during his life or for a 
term of years, by the instrument creating the trust. [In effect 
July 1, 1874.] 

§ 868 of this Code is repealed. [In effect July 1, 1874.] 

§ 869. Where an express trust is created in relation to 
leal property, but is not contained or declared in the grant to 
Ihe trustee, or in an instrument signed by him, and recorded 
»n the same office with the grant to the trustee, such grant 
must be deemed absolute in favor of purchasers from such 
Iru.otec without notice, and for a valuable consideration. [In 
effect July 1, 1874.] 

§ 870. Where a trust in relation to real property is ex- 
pressed in the instrument creating the estate, every transfer or 
>ther act of the trustees, in contravention of the tmst, is ab- 
•olutely void. 

§ 871. When the purpose for which an express tmst was 
^ctatod ceases, the estate of the trustee also ceases. - 



rOWBUU 150 

TITLE V. 
POWDERS. 

Title v., of Part n., of Division n., on Powen, of the Ciyil 
Code, embracing sections of said Code from sec. 878 to 946, 
indnsiye^ is repealed. [Approred April SO. In efiect Jvljr !» 
1874.] 



,y Google 



PAET III. 



PERSONAL OR MOVABLE PROPERTY. 

FlTUB L Pebbonal Pbopebtt IK Gbkbbal, §}946-947. 
IL Particulab Kinds of Pebbonal Pbopsbit 
S§ 953-994. 



TITLE L 
PERSONAL PROPERTY IN GENERAL. 

Iionov 946. By what law gorerned. 

947. Vatme interests in perishable property, how protected. 
(Repealed.) 

§ 946. If there is no law to the contrarj 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 hii 
domicile. 

% 916 haying been repealed by clerical error in 1874, was reSnaoted •£ 
■eesion of 187&-6. 

§ 947 of said Code is repealed. [In effect July 1, 1874.] 



TITLE n. 

PARTICULAR KINDS OF PERSONAL 
PROPERTY. 

Cbaftbb I. Things in Action, §§ 953-954. 
IL Shifpino, §§ 960-973. 
UL Products of the Mind, §§ 980-985. 
nr. Other kinds of Personal Pbopmbft, }} 991-^ 



|§ 953-961 THINGS IN ACTION. — SHIPPINO. ISi 

CHAPTER L 

THINGS IN ACTION. 

Bicnoir 963. ThUnge in action defined. 
964. Transfer and snrriyonhip. 

§ 963. A thing in action is a right to recover money oi 
other personal property by a judid^ proceeding. [In effect 
July 1, 1874.] 

$954. A thing in action, arising out of the violation of a 
right of property, or ont of an obligation, may be transferred 
by the owner. Upon the death of the owner it passes to hia 
pft/sonal representatives, except where, in the cases {provided 
in the Code of Civil Procedure, it passes to his devisees or 
raccesBor in office. 



CHAPTER XL 
SHIPPINO. 

I. GsNXRAL Provisions, §fi 900-986. 
jI. Bdlss of Nayiqation, {§ 970-978. 

ARTICLE I. 

GENERAL FROTISIONS. 

SlonON 900. Definition of a ship and shilling terms. 

961. Appurtenances and equipments. 

962. Foreign and domestic navigation. 

968. Foreign and domestic ships distinguislied 

964. Several owners. 

965. Owner for voyage. 

966. Begistry, &o. 

§ 060. The term ship, or shippino:, when nsed in tUp 
Code, includes steamboats, sailing vessels, canal boats, barges^ 
and every structure adapted to be navi^ted from place to 
■>lace for the transportation of merchandise or persons. [Jm 
effect July 1, 1874.] 

§ 061. All tWngs, belonging to the owners, which are q« 
ttoard a ship, and are connected with its proper use, for ihf 



59 SHippiKO. §§ 962-970 

objects of the voya^ and adventure in which the ship is en- 
gaged, are deemed its appurtenances. 

§ 962. Ships are engaged either in foreign or domestic 
navigation, or m the fisheries. Ships are engaged iu foreign 
navigation when passing to or from a foreign country ; nnd in 
domestic navigation, when passing from place to place within 
the United States. 

§ 963. A ship in a port of the State to which it belongs 
Ls called a domestic ship ; in another port it is called a for> 
oign ship. 

§ 964. If a ship belongs to several persons, not partners, 
nnd they differ as to its use or repair, the controversy may be 
determined by any court of competent jurisdiction. 

§ 965. If the owner of a ship commits its possession and 
navigation to another, that other, and not the owner, is r^ 
sponsible for its repairs and supplies. 

§ 966. The registry, enrolment, and license of ships an 
r^ulated by acts of Congress. 



ARTICLE II. 

BULES OF ITAYIOATIOV. 

BMmoH970. CSollisions. 

1. Rules as to ships meeting each other. 

2. The rule for sailing vessels. 

8. Rules for steamers in narrow channels. 
4. Same. 

6. Rules for steam vessels on different oourses. 
6. Meeting of steamers. 

971. Collision from breach of rules. 

972. Breaches of such rules to imply wilful default. 

973. Loss, how apportioned. 

§ 970. In the case of ships meeting, the following miM 
iiust be observed, in addition to those prescribed by that part 
of the Political Code which relates to navigation : 

1 . Whenever any ship, whether a «teamer or sailing ship, 
proceeding in one direction, meets another ship, whether a 
Iteamer or sailing ship, proceeding in another direction, so 
Huit if both sh^s were to continue their respective courses they 



§971 SHIPPING. 154 

would pass 80 near as to involye the risk of a collision, the helms 
of both ships must be pat to port so as to pass on the port side 
of each other ; and tnis rule applies to all steamers and ali 
sailing ships, whether on the port or starboard tack, and 
whether close-hauled or not, except where the circumstancea 
of the case are such as to render a departure from the rule 
necessary in order to avoid immediate danger, and subject 
also to a due regard to the dangers of navigation, and, as re- 
gards sailing ships on the starboard tack close-hauled, to the 
keeping such ships under command ; 

2. In the case of sailing vessels, those having the wind fair 
must give way to those on a wind. When both are going by 
the wind, the vessel on the starboard tack must keep her >:ind, 
and the one on the larboai'd tack bear up strongly, passing 
each other on the larboard hand. When both vessels have the 
wind large or abeam, and meet, they must pass each other in 
tho same way on the larboard hand, to effect which two last 
mentioned objects the helm must be put to port Steam ves- 
sels must be regarded as vessels navigating with a fair wind, 
and should give way to sailing vessels on a wind of either 
tack; 

3. A steamer navigating a narrow channel must, whenever 
it is safe and practicable, keep to that side of the faiiw^ay or 
mid channel which lies on the starboard side of the steamer ; 

4. A steamer when passing another steamer in such chan- 
nel, must always leave the other upon the larboard side ; 

5. When steamers must inevitably or necessarily cross so 
near that, by continuing their respective courses, there would 
be a risk of collision, each vessel must put her helm to port, 
so as always to pass on the larboard side of each other; 

6. The rules of this section do not apply to any case for 
which a different rule is provided by the regulations for the 
government of pilots of steamers approaching each other 
within sound of the steam-whistle, or by the regulations con- 
cerning lights npon steamers, prescribed under authority of 
the acts of Congress, approved August thirtieth, eighteen hun- 
dred and fifty-two, and April twenty-ninth, eighteen hundred 
and sixty-four. 

For Boles of Navigation, <Ste., see Pol. Code, §§ 286Q-2379. 

§ 971. If it appears that a collision was occa$;ioned by 
failure to observe any rule of the foregoing section, the ownei 
ft the ship by which such rule is infringed cannot recorei 
"^xmpensation for damages sustained by the ship in Bach oolH 



155 PBODUCTS OF THB HIKD. §§ 972-981 

lion, unless it appears that the circnmstances of the case made 
axieparture from the rule necessary. 

§ 972. Damage to person or property arisinf^ from thfl 
failure of a ship to observe any rule of section 970, must be 
deemed to have been occasioned by the wilful default of the 
i^erson 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. 

§ 973. Losses caused by collision are to be borne as fol- 
lows: • 

1 . If either party was exclusively in fault he must bear his 
own loss, and compensate the other for any loss he has sus- 
tained ; 

2. If neither was in fault, the loss must be borne by him on 
whom it falls ; 

3. If both were in fault, the loss is to he 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 ^Eiult lies, the loss 
most be equally divided. 



CHAPTER in. 
PRODUCTS OP THB MIND. 

BlOTiOH 980 How far the subject of ownership. 

981. Joint authorship. 

982. Transfer. 

988. Effect of publication. 

984. Subsequent inrentor, author, &o. 

965. Private writhigs. 

§ 980* The author of any ])rodnct of the mind, whethei 
it is an invention, or a composition in letters or art, or a de- 
sign, with or without delineation, or other graphical represen- 
tation, has an exclusive ownership therein, and in the repro- 
fentation or expression thereof, which continues so long as 
the product and the representations or expressions thereoi 
maie by him remain in his possession. 

S 981* Unless otherwise agreed, a producj 



IS 982-991 OTHBR KINDS OF PEKSONAI^ PBOPBBTT. 15€ 

the production of which seyeral persons are jointly concerned, 
is owned by them as follows : 

1. If the product is single, in equal proportions ; 

2. If it is not single, in proportion to the contribution of 
sach. 

§ 982. The owner of any product of the mind, or of any 
representation or expression thereof, may transfer his prop- 
erty in the same. 

§ 983. If the owner of a product of the mind intenticn« 
ally makes it public, a copy or reproduction may be made 
public by any person, without responsibility to the owner, so 
tar as ths law of this State is concerned. 

§ 984. If the owner of a product of the mind does not 
make it public, any other person subsequently and originally 
producing the same thing has the same right therein as the 
prior author, whidi is exclusive to the same extent against ail 
persons except the prior author, or those claiming under 



§ 985. Letters and other private communications in writ- 
ing belong to the person to whom they are addressed and de- 
livered ; but they cannot be published against the will of tho 
writer, except by authority of law. 



CHAPTER IV. 
OTHER KINDS OF PERSONAIi PROPERTY. 

SwmoM 991. Trade-msrkB. 

992. Good will of buaineM 
998. Same. 
994. Title deedB. 

§ 991. One who produces or deals in a particular thine, 
or conducts a particular business, may appropriate to his ex- 
clusive use, as a trade-mark, any form, symbol, or name, 
which has not been so appropriated by another, to designate 
the origin or ownership thereof; but he cannot exclusively 
appropriate any designation, or part of a de>ignation, which 
relates only to the name, quality, or the description of th 



157 OTHEH KINDS OF PERSONAL PROPEBTT. §§ 992-994 

thing or business, or the place where the thing is produced, 
or the ba^iuess is carried on. [In effect July^^l, 1874.] 

As to Trade-marlu, see Pol. Code, §§ 8196-8198 ; Penal Code, §§ 860- 

^ § 992. The good will of a business is the expectation ol 

^.^°4^ continued public patronage, bat it does not include a right to 
ttse the nam&of any person from w^iom it was acquired. 

^ § 993. The good will of a business is property, transfera- 

24 431 6le like any other 

§ 994. Instmments essential to the title of real property, 
and which are not kept in a public office as a record, pur> 
luaut to law, belong to the person in whom, for the timi 
being, such title may be vested, and pass with the titlt. 

11 



,y Google 



PAET IT. 



ACQUISITION OF PROPERTY. 

f ITLB I. Modes in which Pbopebtt hat bs Acquibid 

§§ lOOO-lOOl. 
n. Occupancy, §§ 1006-1007. 

III. Accession, §§ 1013-1033. 

IV. TBANsrER, §§ 1039-1231. 
V. Homesteads, §§ 1237-1269. 

VI. Wills, §§ 1270-1377. 
VII. Succession, §§ 1383-1408. 
Vm. Wateb Rights, §§ 1410-1422. 



TITLE L 

MODES IN WHICH PROPERTY MAY 
BE ACQUIRED. 

Bmtion 1000. Property, how acquired. 

luOl. Acquisition of property by ezerdM of eminent domaia. 

§ 1000. Pbopebtt is acquired hj : 

1. Occupancj; 

2. Accession; 
8. Transfer; 

4. Will; or, 

5. Succession. 

§ 1001. Any person may, without farther leg^slatire ae- 
Vion, acquire private property for any use specified in section 
1238 of the Code of Civil Procedure, either by consent of the 
owner or by proceedings had under the provisions of Title 
VII., Part in., of the Code of Civil Procedure ; and any 
person seeking to acquire property for any of the uses men 
kioned in such title is " an agent of the State^' or a " penot 

uigitized by Google 



15a OCCUPANCY. — ACCESSION. §§1006-1007 

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 daj of April, eighteen hundred and seventj- 
two. 

Cod« CiT. Proe. §§ 1287-1268. 



TITLE II. 
OCCUPANCY. 

SxcTiON 1006. Simple oecnpancj. 
1007. Prescription. 

I 1006. Occupancy for any period confers a title sniB- 
dent against all except the State and those who have title by 
prescription, accession, transfer, will, or succession. 

§ 1007. Occupancy for the period prescribed by the Code 
of Civil Procedure as suf&cient to bar an action for the re 
covery of the property confers a title thereto, denominated a 
dtle by prescription, which is sufficient against all. 

Code CiT. Proc. §§ 885, 888, 840. 



TITLE in. 
ACCESSION. 



CiiATTSR I. To Real Propkrtt, §§ 1013-1019. 

II. To Peksosal Propbrtt, §§ 1025-1083. 



CHAPTER I 
AOGBSSION TO REAL PROPBBTT. 

BMnonl018. Fixtures. 
1014. Alluvion. 
1016. Sudden remoral of bank. 

1016. iRlandfl, in nnvigable streams 

1017. In unnavigablt) Ptreams. 

1018. Iflland^< formed bv dirinion of strMB. i 
11)19. U'hHt fixturen tenant niay r«moT«. ^g^^ 



i§ 1013-1019 ACCESSION. 160 

§ 1013. When a person affixes his property to the land 
%f another, without an agreement permitting him to remove 
It, the thing affixed, except as provided in section ten hundred 
and nineteen, belongs to the owner of the land, unless he 
chooses to require the former to remove it [In effect July 1, 
1874.] 

56 Cal. 85 ; 57 Cal. 3 ; 58 Cal. 126. 

§ 1014. Where, from natural causes, land forms by im- 
perceptible degrees upon the bank of a river or stream, navi- 
rable or not navigable, either by accumulation of material or 
by the recession of the stream, such land belongs to the owner 
of the bank, subject to any existing right of way over the 
bank. 

§ 1015. If a river or stream, navigable or not navigable, 
carries away, by sudden violence, a considerable and distin- 
guishable pait of a bank, and bears it to the opposite bank, o? 
to another part of the same bank, the owner of the part car- 
ried away may reclaim it within a year after the owner of the 
land to which it has been united takes possession thereof. 

§ 1016. Islands and accumulations of land, formed in the 
beds of streams which are navigable, belong to the State, if 
there is no title or prescription to the contrary. 

§ 1017. An island, or an accumulation of land, formed in 
a stream which is not navigable, belongs to the owner of the 
shore on that side where the island or accumulation is formed ; 
or, if not formed on one side only, to the owners of the sliore 
on the two sides, divided by an imaginary line drawn through 
the middle of the river. 

§ 1018. If a stream, navigable or not navigable, in form- 
ing itself a new arm, divides itself and surrounds land bcloug- 
tng to the owner of the shore, and thereby forms an island, 
ihe island belongs to such owner. 

§ 1019. A tenant may remove from the demised premises 
any nme during the continuance of his term, anything affixed 
thereto for purposes of trade, manufacture, ornament, or do- 
mestic use, if the removal can be effected without injury to thf 
prenn*8es, unless the thing has, by the manner in which it if 
affixed, become an intefirral part of the premises, fin efied 
:^y 1, 1874.] ^ ^ 

AS Cal. 126. 



i61 AcoESsioN. §§ 1025-1028 

CHAPTER n. 
ACCESSION TO PERSONAL PROPERTY. 

§mjnov 1025. Accession by uniting seyeial things. 

1026. Principal part, what. 

1027. Same. 

1028. Uniting materials and worlunanship. 

1029. Inseparable materials. 
1080. Materials of seyeral owners. 
lOSl. Wilful trespeussers. 

1082. Owner may elect between the thing and its Talm 
1088. Wrongdoer liable in damages. 

§ 1026. When thiui^s belonging to different owners haT« 
been united so as to form a single thing, and cannot be sep- 
Brated without injury, the whole belongs to the owner of the 
thing which forms the principal part ; who must, however, re- 
imburse the value of the residue to the other owner, or sur- 
render the whole to him. 

§ 1026. That part is to be deemed the principal to which 
the other has been united only for the use, ornament, or com- 
^pletion of the former, unless the latter is the more valuable, 
and has been united without the knowledge of its owner, who 
may, in the latter case, require it to be separated and returned 
to him, although some injury should result to the thing to 
which it has been united. 

§ 1027. If neither part can be considered the principal, 
within the rule prescril)ed by the last section, the more vafna> 
bl«, or, if the values are nearly equal, the more considerable 
in bulk, in to be deemed the principal part. 

§ 1028. If one makes a thing from materials belonging to 
another, the latter may ciaim the thing on reimbursing the 
value of the workmanship, unless the value of the workman- 
ship exceeds the value of the materials, in which case the 
thing belongs to the maker, on reimbursing the value of the 
materials. 

§ 1020. Where one has made use of materials which io 
J. Art belong to him and m part to another, in order to form a 
thing of a new description, without having destroyed any of 
the materials, but in such a way that'they cannot be separated 
irichoat inconvenience, the thing formed is common to botb 



S§ 1080-1033 Accsssiov. 161 

proprietors ; in proportion, as respects the one, of the materialf 
Belonging to him, and as respects the other, of the materials 
belonging to him and the price of his workmanship. 

§ 1030. When a thing has been formed by the admixture 
of several materials of different owners, and neither can be 
considered the principal substance, an owner without whose 
consent the admixture was made may require a se])anition, if 
the materials can be separated without inconvenience. If they 
cannot be thus separated, the owners acquire the thing in 
common, in propoition to the quantity, quality, and value of 
their matcriaJs ; but if the materials of one were far superior 
to those of the others, both in quantity and value, he may 
claim the thing on reimbursing to the others the value of their 
materials. 

§ 1031. The foregoing sections of this article are not ap- 
plicable 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. 

§ 1032. In all cases where one whose material has been 
used without his knowledge, in order to form a product of a 
different description, can claim an interest in such product, he 
has an option to demand cither restitution of his material in 
kind, in the same quantity, weight, mea^iure, and quality, or 
the value thereof; or where he is entitled to the product, the 
value thereof in place of the product. 

§ 1033. One who wrongfully employs materials bclongiiig 
to another is liable to him in damages, as well as under tin 
feregriu^ provisions of this chapter. 



,y Google 



168 TRANSFBB §§ 1039-1040 



TITLE IV. 

TRANSFER. 

GKattbb I. Transfer nr General, §§ 1039-1085. 

II. Transfer of Rkal Property, §§ 1091-1116. 
m. Transfer of Personal Proferty, §§ 1136-1158 
lY. Recording Transfers of Real Pbopsbtt 

§§ 1158-1217. 
V. Unlawful Transfers, §§ 1227-1231. 



CHAPTER L 

TRANSFERS IN QENERAL. 

Amou I DKRHiTioif or Tkansfkb, §§ 1089-104D. 
n What mat bs Tbansfb&red, f§ 1044-47* 
in. Moi>B or TBAKsnsB, f § 105^1060. 

TV. INTBBPBBTATION Or GRANTS, §§ 1066-1072. 

y. SrrBCT or Tbabsfbe, 1083-1085. 
ARTICLE I. 

DEFINITION OF TBANBFBB. 

8BcmoNl089. Transfer, what. 

1040. Yolimtary tzaiufor. 

§ 1039. Transfer is an act of the parties, or of the law, 
by which the title to property is conveyed from one living per- 
lon to another. 

§ 1040. A volnntarv transfer is an executed contract, sub- 
ject to all rules of law concerning contracts in eeneral ; ex 
Kept that a consideration is not necessary to its validity. 

ARTICLE II. 

WHAT MAT BE TRAK8FBBBED. 

gaonoR 1044. What may be traiuferred. 
1046. Pomibilitj. 

1046. Bight of nSntxj can be txansfened. . 

1047. Owner oiuitod of p<«««i<» may t»D.b§le 



{§ 1044 -1056 TRANSFER. 164 

§ 1044. Property of &nj kind may be transferred, except 
RB otherwise provided by this article. 

§ 1045. A mere possibility, not coupled with an interesli 

cannot be transferred. 

§ 1046. A right of reentry, or of repossession for breach 
of condition subsequent, can be transferred. 

§ 1047. Anjr person claiming title to real property in th« 
Adverse possession of another may transfer it with the samB 
effect as if in actual possession. 

55 Cal. 128. 

ARTICLE III. 

MODE OF TRANSFER. 

BsCTiOH 1052. When oral. 
1063". Grant, what. 

1054. Delivery necessary. 

1055. Date. 

1056. DeliTery to grantee is necessarily absolute. 

1057. Delivery in escrow. 

1058. Surrendering or cancelling grant does not reconr^y 

1059. Constructive delivery. 

1060. Gratuitous grancs take effect immediately ; exceptwn. (B** 

pealed.) 

§ 1062. A transfer may be made without writinj^, in 
every case in which a writing is not expressly required by 
statute. 

§ 1053. A transfer in writing is called a grant, or convey- 
ance, or bill of sale. The terra " grant," in this and UA 
next two articles, includes all these instruments, unless it if 
specially applied to real property. [In effect July 1, 1874. J 

§ 1054. A grant takes effect, so as to vest the mtoresl 
intended to be transferred, only upon its delivery by tht 
grantor. 

§ 1056. A grant duly executed is presumed to have beev 
delivered at its date. 

§ 1066. A grant cannot be delivered to the grantee oondi 
Honally. Delivery to him, or to his agent as sueh, is neoo* 



165 TRANSFEB. §§ 1057-1068 

■arilj abfiolate, and the instrtunent takes effect therenpon, 
discharged of any condition on which the delivery was made. 

§ 1057. A grant may be deposited by the grantor with a 
fchu'd person, to be delivered on performance of a condition, 
and, on delivery by the depositary, it will take effect. While 
in the possession of the third person, and subject to condition, 
it is called an escrow. 

§ 1058. Redelivering a grant of real property to the 
grantor, or cancelling it, does not operate to retransfer tbv 
title. 

§ 1059. Though a grant be not actually delivered int« 
the possession of the grantee, it is yet to be deemed construe 
tively delivered in the following cases : 

1. Where the instrument is, by the agreement of the parties 
at the time of execution, understood to be delivered, and un- 
der such circumstances that the grantee is entitled to imme- 
diate delivery ; or, 

2. Where it is delivered to a stranger for the benefit of the 
grantee, and his assent is shown, or may be presumed. 

S 1060 of said Code is repealed. [In effect July 1, 1874.] 



ARTICLE IV. 

INTERPRETATIOir OF GRANTS. 

tarnoN 1066. GrantR, how interpreted. 

106T. Limitations, how controlled. 
1068. RecitalS). when resorted to. 
1U69. Interpretation agains*: grantor. 

1070. Irreconcilable provisions. 

1071. Meaning of " heirs " and " issue," in certain remaindni. 

1072. Words of inheritance unnecessary. 

§ 1066. Grants are to be interpreted in like manner with 
ro 1 tracts in general, except so far as is otherwise provided in 
^is article. 

§ 1067. A clear and distinct limitation in a grant is not 
vontrolled by other words less clear and distinct. 

§ 1068. If the operatiyc words of a grant are donbtfti\ 



{§ 1069-1085 TRAXsrssi. IM 

' reoonrsd may be had to its recitals to assist the o<Muitnto- 
tion. 

§ 1069. A grant is to be interpreted in ikyor of the 
grantee, except that a reservation in any grant, and ereiy 
^rant by a public officer or body, as such, to a private party 
.s to be interpreted in favor of the grantor. 

^ § 1070. If several parts of a grant are absolutely irrecon 
cilable, the former part prevails. 

§ 1071. Wbere a future interest is limited by a grant to 
take effect on the death of any pei^on without heirs, or heirs 
ftf his body, or without issue, or in equivalent words, such 
words must be taken to mean successors, or issue living at 
the death of the person named as ancestor. 

§ 1072. Words of inheritance or succession are not req- 
uisite to transfer a fee in real property. 



ARTICLE V. 

EFFECT OF TBAKBFES. 



0sonoN 1088. What title i 

1084. Incidents. 

1085. Grant may enuxe to benefit of stnnger. 

§ 1083. A transfer vests in the transferee all the actual 
title to the thing transferred which the transferrer then has 
unless a different intention is expressed or is necessarily im- 
plied. 

§ 1084. The transfer of a thing transfers also all its in- 
cidents, unless expressly excepted ; but the transfer of an in* 
cident to a thing does not transfer the thing itself. 

§ 1085. A present interest, and the benefit of a condition 
or covenant respecting property, may be taken by any natuim. 
person under a grants although not named a party thereto. 



,y Google 



ler TVANSFBR. §§ 1091>109A 

CHAPTER II. . 
TRANSFER OF REAL, PROPERTY. 

▲ktxcu I. MoDB or TRAXsrEK, §§ 1091-1096. 
II. Bffxct or TaARsrxB, }§ 1104-1116.. 

ARTICLE I. 

MODE OF TttAXSFER. 

Bbozioh 1091. Requisites for transfer of certain estates. 

1092. Form of gmnt. 

1093. Grant by married women, how acknowIedg«d. 

1094. Power of attorney of married women, how acknowledged. 

1095. Attorney in fact, how must execute for principal. 

§ 1091. Ati estate in real property, other than an estate 
at will or for a term not exceedin<j one year, can bo trans- 
ferred only by operHtion of law, or by an instrument in 
writing, subscribed by the party disposing of the same, or by 
his agent thereunto authorized by writing. 

Code CiT. Pro. §§ 1971-1974. 

§ 1092. A grant of an estate in real property may be 
made in substance as follows : 

" I, A B, grant to C D all that real property situated in (insert 
name of county) County, State of California, bounded (or de- 
scribed) as follows : (here insert description, or if the land sought 
to be conveyed has a descriptive name, it may be described by the 
name, as, for instance, * The Norris Ranch.') 

" Witness my hand this (insert day) dRy of (insert month), 
18—. 

"AB." 

See Act of March 11, 1874, Conveyancing by person who has changed 
his or her name, Appendix, p. 479. 

^ § 1093. No estate in the real property of a married 
woman passes by any grant purporting to be executed or 
■ nowledged by her, unless tne grant or instrument is ao- 
wledged by her in the manner prescribed by sections 118€ 
1191. 
Cal.56. 

§ 1094. A |K>wer of attorney of a married woman, anthor- 
mhig the ezecutkoa-of an imitrament tranafening an estate in 




ecutioDr-oz an i 



f§ 1095-1107 TRANSFER. ifiS 

her separate real property, has no validity for that purpose 
Dutil acknowledged hy her in the manner provided in sections 
1186 and 1191. 

§ 1096. When an attorney in fact executes an instrument 
transferring an estate in real pro]>erty, he must snhflcril)e ib6 
name of his principal to it, and his own name as attorney m 
fivct. 

ARTICLE II. • 

EFFECT OF TRANSFER. 

toonoK 1104. What ea-oeBients pasA with property. 

1105. \Mien fee simple title is presumed to pass. 

1106. Subsequently acquired title passes by operation of law. 

1107. Grant, how far conclusive on purchasers. 

1108. Convey ances by owner for life or for years. 

1109. Grant made on condition subsequent. 

1110. Grant on condition precedent. 

1111. Grant of rents, reversions, and remainders. 

1112. lioundary by highway, what passes. 

1113. Implied covenants. 

1114. What the terra " incumbrances'* embraces. 

1115. Lineal and collateral warranties abolished. 

§ 1104. A transfer of real property passes all easements 
attached thereto, and creates in favor thereof an easement to 
use other real property of tlie person whose estate is trans- 
forred in the same manner and to the .<5ame extent as such 
j)ro]K'rty was obviously and permanently used by the person 
whose estate is transferred, for the bench t thereof, at the time 
when the transfer was agreed upon or completed. 

§ 1105. A fee simple title is presumed to be intended to 
j»a»s hy a grant of real property, unless it appears from the 
grant that a lesser estate was intended. 

§ 1106. Where a person purports by proper instrument to 
^rant real pro])eity in fee simple, and subsequently acquires ^ 
any tii.e, or claim of title thereto, the same passes by opera- 
tion of law to the grantee, or his successors. ^ 



§ 1107. Every grant of an estate in real property is con 
elusive against the grantor, also against every one snba* 
quently claiming under him, except' a purchaser or incoir 
trancer wlio in good faith and for a valuable c<»iBideiatao« 



169 TRANSFBB. §§ 1108-1113 

Rcqaires a title or lien by an instrament that is first dnlj re- 
corded. 

§ 1108. A grant made by the owner of an estate for life 
or years, purporting to transfer a greater estate than he- could 
lawfully transfer, does not work a forfeiture of his estate, bat 
passes to the grantee all the estate which the grantor could 
lawftilly transfer. 

§ 1109. Where a grant is made upon condition subse- 
quent, and is subsequently defeated by the non-performance 
of the condition, the person otherwise entitled to hold under 
the grant must reconvey the property to the grantor or his 
■uccessors, by grant, duly acknowledged for record. 

66Cal. 428; 58 Cal. 421. 

§ 1 1 1 0. An instrument purporting to be a grant of real 
property, to take effect upon condition precedent, passes the 
estate upon the performance of the condition. [In effect July 
1, 1874 I 

68 Cal. 428. 

§ 1111. Grants of rents or of reversions or of remainders 
are good and effectual without attornments of the tenants; 
but no tenant who, before notice of the grant, shall have paid 
rent to the grantor, must suffer any damage thereby. 

§ 1112. A transfer of land, bounded by a highway, passes 
the title of the person whose estate is transferred to the soil of 
the highway in front to the centre thereof, unless a different 
intent appears from the grant. [In effect July 1, 1874.] 

§ 1113. From the use of the word "grant" in any con- 
veyance by which an estate of inheritance or fee simple is to 
be passed, the following covenants, and none other, on the 
part of the grantor for hinfself and his heirs to the grantee, 
Lis heirs, and assigns, are implied, unless restrained by ex- 
press terms contained in such conveyance : 

1. That previous to the time of the execution of such coc* 
veyance, the grantor has not cceveyed the same estate, or any 
right, title, or interest thereiA to any person other t: an the 
frantee ; 

2. That such estate is at the time of the execution of such 
conveyance free from incumbrances done, made, or suffered 
ky the grantor, or any person claiming under him. 

Such coyenants may oe sued upon in the same manner as il 
Ifaey had been expressh inserted m the conveyance. 
6$ Cal. 618. 



!§ 1114-1140 TRANSFER. 170 

§ 1114. The term " incumbrances " includes taxes, aasesft* 
ments, and all liens upon real property. [In effect July 1^ 
1874.] 

§ 1115. Lineal and collateral warranties, with all theii 
incidents, are abolished ; but the heirs and devisees of every 
person who has made any covenant or agreement in reference 
to the title of, in, or to any real property, are answerable upon 
Buch covenant or agreement to the extent of the land de- 
scended or devised to them, in the cases and in the manner 
prescribed by lav 



CHAPTER III. 
TBANSFBR OF PERSONAL PROPERTY. 

Abtiolb I. MoBB or Transfer, §§ 1135-1136. 

n. What opbrates as a Transfer, §§ 1140-114S. 
III. Gifts, §§ 114&-1153. 

ARTICLE I. 

MODE OF TRANSFER. 

Section 1135. When must be in writb^. 
1136. Transfer "by sale, &c. 

^ tlS5. An interest in a ship, or in an existing trust, can 
be transferred only by operation of law, or by a written in- 
Itmmcnt, subscribed by the person making the transfer, or by 
lis agent. 

§ 1186. The mode of transferring other personal proi)erty 
by sale is reguhitcd by the title on that subject, in Division 
Third of this Code. 

ARTICLE II. 

WHAT OPERATES AS A TRANSFER. 

liOTiON 1140. Transfer of title under sale. 

1141. Transfer of title under executory agreement for ■»!•> 

1142. When buyer acquires better title than seller has. 

f 1140. The title to personal property, sold or excbang«a 
9^ *eB to the buyer whenever the parties agree upon a pNMOl 



171 THANSFBB. §§ 1141-114^ 

kransfer, and the thing itself is identified, whether it ia Mpa- 
rated from other things or not. • 

§ 1141. Title is transferred bj an execntory agreement 
for the sale or exchange of personal property only when the 
buyer has accepted the thing, or when the seller has completed 
It, prepared it for delivery, and offered it to the buyer, with 
intent to transfer the title thereto, in the manner prescribed 
by the chapter upon Offer of Performance. 

§ 1142. Where the possession of personal property, U>- 
gether with a power to dispose thereof, is transferred oy its 
owner to another person, an executed sale by the latter, while 
in fxissession, to a buyer in good faith and in the ordinary 
coarse of business, for value, transfers to such buyer the title 
of the former owner, though he may be entitled to rescind, 
and does rescind, the transfer made by him. 



ARTICLE III. 

GIFTS. 

B«moMll46. Gifts defined. 

1147. Gift, how made. 

1148. Gift not revocable. 

1149. Gift in view of death, what. 

1150. When gift presumed to be in view of death. 
1161. Rf vocation of gift in yiew of death. 

1152. Effect of will upon gift. 

1153. niien treated as legacy. 

§ 1146. A gift is a transfer of personal property, made 
voiuutarilv, and without consideration. 
57 Cal. 226. 

§§ 1147. A verbal gift is not valid, unless the means oi 
obtaining pc^session and cc.itrol of the thing are given, lor, 
if it is capable of delivei-y, unless there is an actual or Byoi' 
bolical delivery of the thing to the donee. 

§ 1 148. A jrift, other than a gift in view of death, cannot 
be revoked by the giver. 

§ 1149. A gift in view of death is one which is made in 
tonteinplatiou, fear, or peril of death, and with intent that U 
ihall taxe effect only in case of the death of the giver. 



S§ 1150-1163 TRANSFER. 17S 

§ 1160. A gift made during the last illness of the giver, 
or niftier circumstances which would naturally impress him 
with an expectation of speedy death, is presumed to be a gift 
in view of death. 

§ 1151. A gift in view of death may be revoked by the 
giver at any time, and is revoked by his recovery from the ilU 
ness, or escape from the peril, under the presence of which it 
was made, or by the occurrence of any event which would 
operate as a revocation of a will made at the same time ; but 
when t he ^ift has been delivered to the donee, the rights of a 
hondjile purchaser from the donee before the revocation, shall 
not be alfected by the revocation. [In effect July 1, 1874.] 

§ 1162. A gift in view of death is not affected by a previ- 
ous will ; nor by a subsequent will, unless it expresses an iii:< 
tention to revoke the gift. 

§ 1153. A g^ift in view of death must be treated as a leg^ 
%cj, so far as relates only to the creditors of the giver. 



CHAPTER IV. 
BBOORDING TRANSFERS. 

Ajmou I. What mat bk rvcobded, §§1153-1166. 
II. MoDB OP Recording, §§ 1169-1173. 

III. Proof and Acknowledgments op Instruments, §§ 1180-120T 

IV. Effeoi of Bscordino or of the Want therkof, §§ 1218-1217 

ARTICLE I. 

WHAT MAT BE HECOBDED. 

llOTIOH 1158. What may be recorded. 

1159. Judgments may be recorded without acknowledgment. 
11^. Letters patent may be recorded \iithout acknowled|;nMat 

1161. Instruments must be acknowledged, except, &e 

1162. Same. 

1163. lu-^truments execut«d under power of attorney not to It 

recorded until power is filed. (Aepealed.) 

1164. Transfers in trust, &c. C^i^i^n]^ 
U66. FMi of recorder to be indoned^ ''^ by ^^OOglL 



173 TBAK8FBS. §§1158-1164 

§ 1158. Anj instrument or judgment affecting the title 
to or possession of real property may be recorded under this 
ehapter. 



§ 1159. Judgments affecting the title to or possession of 
^w^ real property, authenticated by the certificate of the clerk of 
^^the court in which such judgments were rendereil, may be 

^"^tecorded without acknowledgment or further proof. 
#s^ Becorder must file judgmenta. Polit. Code, § 4238. 

^^^ § 1160. Letters patent from the United States or from 
^^ the State of California, executed and authenticated pursnant 
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 derai^ning title therefrom, oi 
for any reason they remain unrecorded, any pei-son claiming 
title thereunder may cause a transcript of the copy of such le> 
ters patent kept by the government issuing the same, duly 
certified by the officer or individual having lawful custody of 
such copy, to be recorded in lieu of the original ; and such re- 
corded copy shall have prima facie the same force and effect as 
the originai, for title or for evidence, until said original letters 
patent be recorded/' [In effect May 31, 1878.] 

§ 1161. Before an instrument can be recorded, unless it 
belongs to the class provided for in either sections eleven hun- 
dred and fifty-nine, eleyen 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 secretary, or proved by a sub- 
scribing witness, or as provided in sections eleven hundred 
and ninety-eight and eleven hundred and ninety-nine, and the 
acknowledgment or proof certified in the manner prescribed 
by Article III. of this chapter. [In effect July 1, 1874.] 

§ 1162. An instrument, proved and certified pursuant to 
sections 1 198 and 1199, may be recorded in the proper office if 
the original is at the same time deposited therein to remain 
for public inspection, bat not otherwise. 

§1163 of said Code is repealed. [In effect July 1, 
1874.] 

§ 1164. Transfers of property iiv trust for the beneOt oi 



§§1166-1173 TRAKSPEB. 174 



creditors, and transfers or liens on property by way of mort 
gage, are required to be recorded in the cases specified in the 
Titles on the special relation of Debtor and Creditor, and the 
Chapter on Mortgages respectively. 

§ 1 165. The recorder must in all cases indorse the amoonfe 
»f his fee for recordation on the instrument recorded. [Afh 
proved March II, 1874. Sixty days.] 

FiDUt 0>d« { 4286 

ARTICLE IL 

MODE OF HECORDINO. 

Sicn:i' 1169. In what office. 

1170. Infitrument, when deemed reeoided. 

1171. Books of record. 

1172. Duties of recorder. 

1173. Transfer of vesseU. 

§ 1169. Instruments entitled to be recorded must be re- 
eorded by the county recorder of the county in which the real 
property affected thereby is situated. 

§ 1170. An instrument is deemed to be recorded, when, 
bein^ duly acknowledged or proved, and certified, it is depos- 
ited m the recorder's office with the proper officer for record. 
[In effect July I, 1874]. 

67 Cal. 401. 

§ 1171. Grants, absolute in terms, are to be recorded in 
one set of books, and mortgages in another. 

§ 1172. The duties of county recorders, in respect to re- 
cordinj; instruments, are prescribed by the Political Code. 
Polit. Code, § 4236. 

§ 1173. The mode of recording transfers of ships rejri»* 
tered under the laws of the United States is regnlated by actt 
of Congress. 

ARTICLE III. 

PROOF AND ACKNOWLEDGMENT OF INSTRDMEITTB. 

locnoR 1180. By whom acknowledgments may be tak«| in thb 8t»te 
1181. Same. gitizedbyGoOQlc 

11s2. By whom taken without the State. o 



»75 TRJLH8MK. K 1180-1182 

Imbom lldS. By whom taken wifhoat the Ualted 8t»*M. 

1184. Deputy can take acknowledgment. 
11S5. Requisites lor acknowledgments. 

1186. Acknowledgmeot by manled womas. 

1187. Same. 

1188. Officer must indorse certificate. 

1189. General form of certificate. 

1190. Torm of acknowledgment by eorporatlon. 

1191. Form of certificate of acknowledgment br aiantod woBM 
1198. Vorm of certificate of ai^nowledgmenl by mttotMj li 

fact. 
1198. (MBoers must afilx their signatures. 

1194. Certificate of authority of justices in < 

1195. Proof of execution, how made. 

1196. Witness must be personally known to < 

1197. Witness must prove, what. 

1198. Handwriting may be proved, when. 

1199. Evidence must prove, what. 

1200. Certificate of proof. 

1201. Officers authorized to do certain things. 

1202. When instrument is improperly cw^led, party maj hn% 

action to correct error. 

1203. In certain cases parties interested may obtain Jndgmsnt fli 

proof of an instrument. 

1204. Effect of judgment in such actttm. 

1206. Conveyances heretofore made to be governed by Ama ex- 
isting laws. 

1206. Becording, and as evidence, to be governed by then tzist- 

ing laws. 

1207. Certified copies as evidence. Becords, what notice detmed 
< from. 

§ 1180. The proof or acknowledgment of an instranient 
may be made at any place within this State before a justice or 
rlerk of the Supreme Court or a judge of the Superior Court. 
[In eift'Ct April 3, 1880. J 

§ 1181. Tlie proof or acknowledgment of an instrument 
may be made in this State within the city, city and county, 
county or district for which the officer was elected or ap- 
pointed, before either : 

1. A clerk of a court of record; or, 

2. A county recorder ; or, 

3. A notary public ; or, 

4. A justice of the peace. 
ilu effect April 3, 1880.] 

I 1182. The proof or acknowMgment of an instrument 
may !« made without this State, but within the United States, 
and witnin the jurisdiction of the officer, befor« either : 

I. A justice, judge, or clerk of any coiurt of record of the 
United States; or. 



|§ 1183-1187 TBAKSFEB 17« 

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 laws to take such proof or acknowl- 
edgment. 

§ 1183. The proof or acknowledgment of an instmrnent 

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. [In effect July 1, 1874.] 

§ 1 1 84. When any of the officers mentioned in the fonf 
preceding sections are authorized by law to appoint a deputy, 
the acknowledgment or proof may be taken by such deputy, 
in the name of his piincipal. 

§ 1185. The acknowledgment of an instrument must not 
be taken, unless the officer taking it knows, or has satisfactory 
evidence, on the oath or affirmation of a credible witness, that 
the person making such acknowledgment is the individual who 
is described in and who executed the iustmuient ; or, if exe- 
cuted by a corporation, that the person making such acknowl- 
edgment is the president or secretary of such corporation, 

§ 1186. The acknowledgment of a married woman to an 
instrument purporting to be executed by her, must not be 
taken, unless she is made acquainted by the officer v/ith the 
u>ntents of the instrument on an examination without the 
hearing of her husband ; nor certified, unless she thereupon 
acknowledges to the officer that she executed the instrument 
4Dd that she does not wish to retract such execution. 
65 Cal. 66 ; 68 CaL 3. 

S 1187. A conveyance by a married woman has the sanif 

f/— /a*) 



177 TBAN8FBB. §§1188-1191 

effect as if she were nnmarried, and may be acknowledged in 
the same manner, except as mentioned in the last section ; 
but such conveyance has no yalidity until so ackuowkdged. 

65 Cal. 58. 

§ 1188. An officer taking the acknowledgment of an ia- 
ftmment must indorse thereon, or attach thereto, a certificate 
mbstantially in the forms hereinafter prescribed. [In eiftct 
/uly 1, 1874.] 

God« CiT. Frooedtm, f 1968. 

^. § 1189. The certificate of acknowledgment, nnless it i« 

'^otherwise in this article provided, must be substantially in the 
•^ TOllowing form : 

X Statk of , ) ,. 

f County of . J ®** 

On this day of , in the year , before me [here 

insert the name and quality of the officer], personally appeared 

— , known to me [or proved to me on the oath of •] to be 

the person whose name is subscribed to the within instrument, ' 
and acknowledged to me that he [or they] executed the same. 

§ 1190. The certificate of acknowledgment of an instru- 
ment executed by a corporation must be substantially in the 
following form : 



^ 



State of 



County of- 



!■ 



On this day of , in the year , before me [here 

insert the name and quality of the officer], personally appeared 

— , known to me [or proved to me on the oath of •] to be 

the president [or the secretary] of the corporation that exe- 
cuted the within instrument, and acknowledged to me that 
hXkch corporation executed the same. 

2v § 1191. The certificate of acknowledgment by a married 
*rV^oman must be substantiaUy in the following form : 
State of , ) ,. 

County of . S 

On this day of , in the year , before me [here 

psert the name and quality of the officer], personally appeared 

, known to me [or proved to ine on the oath of ] to be 

he person whose name is subscribed to the within instrument, ^-^^ 
escribed as a married woman ; and upon an examination \::^ 
bout the healing of her husband I made her acquainted 
tlie contents of the instrument, and thereupon she ac 




f§ 1192-1196 TRANSFBB. 178 

knowledged to me that she executed the same, and that she 
does not wish to retract such execution. 

66 Cal. 56. 

§ 1192. The certificate of acknowledgment by an attor* 
' Dey iu fact must be substantiallj in the following form * 

State or , ) 

County of . ) *** 

On this day of , in the year , before me [hem 

Iniert the name and ouality of the officer], perekinally appearaii 
— , known to me [or proved to me on the oath of — ] ta 
be the person whose name is subscribed to the within instru- 

ment as the attorney in fact of , and acknowledged to me 

that he subscribed the name of thereto a3 principal, and 

his cwn name as attorney in fact. 

§ 1193. 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 ofhce, if by the 
laws of the State or country where the acknowledgmetit or 
proof is taken, or by authoiit}' of which they are acting, they 
iure required to have official seals. 

§ 1194. The certificate of proof or acknowledgment, H 
made before a justice of the peace, when used in any county 
other than that in which he resides, must be accompanied by 
a certificate under the hand and seal of the clerk of the county 
En which the justice resides, setting forth that such justice, at 
the time of taking such proof or acknowledgment, was author- 
ized to take the same, and that the cierk is acquainted with 
his handwriting, and believes that the signature to the origi- 
nal certificate is genuine. 

S 1196. Proof of the execution of an instrument, whec 
fot acknowledged, may be made either : 

1. By the party executing it, or either of them ; or, 

2. By a subscribing witness; or, 

£. By other witnesses, in ca^es mentioned in section 1198. 

§ 1196. If by a subscribing witness, such witness must bf ^ 
pe iBonally known to the officer taking the proof to be the per 
ton whose name is subscribed to the instrument as a witness 
or muBt be proved to be such by the oath of a credible wit > 



79 TBANSFBB. §§ 1197-1201 

§ 1197. The subscribing witness must prore that the per- 
son who>e name is subscribed to the instrument as a partv ia 
the person described in it, and that such person execntea it, 
and that the witness subscribed his name nereto as a witness. 

§ 1198. The execution of an instrument maybe estab- 
lished by proof of the handwriting of the party and of a sub- 
icribing witness, if there is one, in the following cases : 

1. When the parties and all the subscribing witnesses an 
dead; or, 

2. When the parties and all the subscribing witnesses are 
non -residents of the State ; or, 

3. When the place of their residence is unknown to the 
party desiring the proof, and cannot be ascertained by the ex- 
ercise of due diligence ; or, 

4. When the subscribing witness conceals himself, or can- 
not be found by the officer by the exercise of due diligence in 
attempting to serve the subpoena or attachment ; or, 

5. In case of the continued failure or refusal of the witness 
to testify, for the space of one hour, after his appearance. 

§ 1199. The evidence taken under the preceding section 
must satisfactorily prove to the officer the following facts : 

1. The existence of one or more of the conditions mentioned 
therein; and, 

2. That the witness testifying knew the person whose name 
purports to be subscribed to the instrument as a party, and is 
well acquainted with his signature, and that it is genuine ; 
and, 

3. That the witness testifying personally knew the person 
who subscribed the instrument as a witness, and is well ao- 
inainted with his signature, and that it is genuine ; and, 

4. The place of residence of the witness. [In e^ect July 1, 
874.] 

§ 1 200. An officer taking proof of the execution of any 
inr-trument must, in his certiScate indorsed thereon or attached 
thereto, set forth all the matters required by law to be done or 
known by him, or proved before him on the proceeding, to- 
gether with the names of all the witnesses examined before 
tim, their places o^f residence respectively, and the substance 
»f their testimony.' 

§ 1201. Officers authorized to takeigiti^yfi<w5^feinstru- 
fients are authorized in such proceeditigs : 



H 1202-1207 TR.iNSFE]L 180 

1. To administer oaths or affirmations, as prescribed In SM^ 
tion 2093, Code of Civil Procedure ; 

2. To employ and swear interpreters ; 

3. To issue subpoena, as prescribed in section 1986, Code 
nf Civil Procedure ; 

4. To punish for contempt, as prescrilied in ■ectioiis 1991, 
1993, 1994, Code of CivU Procedure. 

The civil damages and forfeiture to theparty aggrieved arc 
prescribed in section 1992, Code of Civil Procedure. 

§ 1202. When the acknowledgment or proof of the ex^ 
cntion of an instrument is properly made, but defectively cer- 
tified, any party interested may have an action in the District 
Court to obtain a judgment correcting the certificate. 

53 Cal. 486. 

§ 1203. Any person interested under an instrument en- 
titled to be proved for record may institute an action in the 
District Court against the proper parties to obtain a judgment 
proving such instrument. 

53 Cal. 486. 

§ 1 204. A certified copy of the judgment in a proceeding 
Instituted under either of trie two preceding sections, showing 
the proof of the instrument, and attached thereto, entitles 
such instrument to record, with like effect as if acknowl- 
edged. 

§ 1206. The legality of the execution, acknowledgment, 
proof, form, or record of any conveyance or other instrument 
made before this Code goes into effect, executed, acknowl- 
edged, proved, or recorded is not affected by anything con- 
tained in this chapter, but depends for its validity and legality 
u[ion the laws in force when the act was perfoimed. 

63 Cal. 486. 

§ 1206. All conveyances of real property made hefore 
this Code goes into effect, and acknowledged or proved ac- 
cording 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 pursu- 
iuce of this chapter. 

§ 1207. Any instrument affecting real property, which 
was, previous to the thirtieth day of January, one thousana 
•ight hundred and seventy-three, copied into the proper book 
«f record, kept in the office of any county recorder, shall bf 



181 TRAN8FEB. §§ 1213-1216 

deemed to impart, after that date, notice of its coDtents^ to 
subsequent purchasers and incumbrancers, notwithstandinji^ 
pny defect, omission, or informality in the execution of the 
instioiment, or in the certificate of acknowledgment thereoC 
or the absence of any sach certificate ; but nothing hereia 
* shall be deemed to affect the rights of purchasers or inciUD- 
brancers previous to that date. Duly certified copies of the 
record of any such instrument may be read in evidence, with 
like effect as copies of an instrument duly acknowledged and 
recorded, provided it be first shown that the originid iustrn- 
ment was genuine. [In effect July 1, 1874.] 



ARTICLE nr. 

EFFECT OF SBCORDING, OB THE WAKT THBBBOV. 

iionoir 1213. Record, where and to whom notice. 

1214. Conyeyancee to be recorded, or are void, Ae. 

1215. Conyeyance defined. 

1216. Powers of attorney, how revoked. 

1217. Unrecorded instrument valid between the partiei. 

§ 1213. Every conveyance of real property, acknowledged 

^**>vOr proved, and certified and recorded as prescribed by law, 

w^ from the time it is filed with the recorder for record, is con!> 

f itructive notice of the contents thereof to subsequent pur- 

^^^ chaser and mortgagees. 

46Cal. 606; 57 Cal. 899. 



^^ 



r i Muhat 
" 44( 



§ 1214. Every conveyance of real property other than « 
lease for a term not exceeding one year, is void as against any 
^subsequent purchaser or mortgagee of the same property, oi 
part thereof, in good faith and for a valuable considera* 
whose conveyance is first duly recorded. 
Gal. 606; 58 Cal. 619. 



§ 1215. The term "conveyance," as used in sections 1213 
and 1214, embraces every instrument in writing by which any 
estate or interest in real property is created, aliened, mort- 
^ged, or encumbered, or by which the title to any real prop- 
vTty mHy be affected, except wills. 

46 Cal. 607. 

§ 1216. No instrument containing a power to convey ot 
izecute instruments affecting real property, which has been 



J§ 1217-1229 TRANSFER. 18f 

recorded, is revoked by any act of the party by whom h was 
executed, unless the instmmeDt containing such revocation is 
also acknowledcred or proved, certified and recorded, in the 
same office in which the instrument containing the power waa 
recorded. 

§ 1217. An unrecorded instrument is valid as betwetn tlM 
parties thereto and those who have notice thereof. 



CHAPTER V. 
UNLAWFUL TRANSFERS. 

iauiiov 1227. Certain Instmmente void a^^alnst pnrchaMn, fte. 

1228. Not void against purchaser having notice, unless fimvd If 

mutual. 

1229. Power to revoke, when deemed executed. 

1230. Same. 

1281. Other provisions. 

§ 1227. Every instrument, other than a will, affecting an 
estate in real property, including every charge upon real prop« 
erty, or upon us rents or profits, made with intent to denraud 
' prior or subsequent purchasers thereof, or incumbrancers 
thereon, is void as against every purchaser or incumbrancer, 
for value, of the same property, or the rents or protite 
thereof. 

§ 1228. No instrument is to be avoided under the last 
section, in favor of a subsequent purchaser or incumbrancer 
having notice thereof at the time his purchase was made, or 
his lien acquired, unless the person in whose fkror the instru- 
ment was made was privy to the fraud intended. 

§ 1229. Where a power to revoke or modify an instm- 
jnent aflvcting 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 
*he person having the power of revocation, in favor of a pnr 
chaser or incumbrancer for value, operates as a revocation oi 
who original instrument, to the extent of the power, in favor d 
Vich purchaser or incumbrancer. ,g.,.^^^ ^^ Google 



9» HOMESTEADS. §§ 1230-1231 

§ 1230. Where a person havinj? a power of revocation, 
vnthin the provisions oi the last section, is not entitled to exe* 
mte it unci) after the time at which he makes such a grant or 
charge aa h described in that section, the power is deemed to 
be executed as soon as he is entitled to execute it. 

§ 1231. Other provisions concerning unlawful transfer! 
are contained in Part II., Division Fourth, of this Code, con* 
ceming the Special Relations of Debtor and Creditor. 



TITLE V. 
HOMESTEADS. 



Cbattbr I. General Pkovisions, §§ 1237-1261. 

II. Homestead of the Head op a Family, §§ IMS' 
1265. 
m. Homestead of other Persons, §§ 1266-1969. 



CHAPTER L 
GENERAL PROVISIONS. 

r 1237. Homestead, of what it consists 
1238. Prom what it may be carred. 
1289. From what not. 

1240. Exempt from foreed sale 

1241. Subject to, when. 

1242. now conyeyed or incumbered 

1243. How abandoned. 

1244. Same. 

1246. Proceedings on execution agafaiBt homMtMd 

1246. Same. 

1247. Same. 

1248. Same. 
1349. Same. 
1250. Same. 

1261. Same. 

1262. Same. 
1268. Same. 
1264. Same. 
1266. Same. 
1266. Same. 

1S67. After sale, money equal to homestead ezenpClMft 
tected. 



I§ 1237-1242 HOMESTEADS. 184 

SxoTioN 1258. Compensation of appralBen. 

1259. Costs. 

1260. Who may select homestead, Talne of. 

1261. Head of family defined. 

§ 1237. The homestead consists of the dwelling-hoiiM bi 
which the claimant resides, and the land on which the same 
is situated, selected as in this title provided. [La effect Julj 1, 
1874.] 
52 Cal. 630. 

§ 1238. If the claimant be married, the homestead may 
bt3 selected from the communirv property, or the separate 
property of the husband, or, with the consent of ^he wife, 
from her separate property. When the claimant is not mar- 
ried, but is the head of a family, within the meaning of sec- 
tion one thousand two hundred and sixty-one, the homestead 
may be selected from any of his or her property. [In effect 
July 1, 1874.] 

§ 1239. The homestead cannot be selected from the sep- 
arate property of the wife without her consent, shown by her 
making, or joininir in making, the declaration of homestead. 
[In etfect July 1, 1874.] 

§ 1240. The homestead is exempt from execution or 
forced sale, except as in this title provided. 
j2^j 54 Cal. 83. 

cc § 1241. The homestead is subject to execution or forced 
184 106 lale in satisfaction of judgments obtained : 
1'^ 417 !• Before the declaration of homestead was filed for record. 
and which constitute Hens upon the premises; 

2. On debts secured by mechanics, contractors, snbcontrae- 
tors, artisans, architects, huiMers, laborers of every class, ma- 
terial-men's or vendors' liens upon the premises. 

3. On del)ts secured by moitgajrcs on the premises, executed 
and acknowledged by the husband and wife, or by an unmar> 
ried claimant ; 

4. ( )n debts secured by mortjrages on the premises, executed 
and recorded before the dctlaration of homestead was hied fof 
record. | In effect March 9, 1887.] 

58 Cal. 1, 378, 429, 598. 

§ 1242. The homestead of a married person cannot be 
conveyed or incumbered, unless the instrument by which it u 
conveyed or incumbered is executed, and acknowledged by 
Wth husband and wife. 

8ee Act of April 1, 1872, To promote Irrigation, Appendix, p. 414. 



185 HOMESTEADS. §§ 1243-1261 

§ 1 243. A homeetead can be abandoned only by a deelarar 

tioD of ahandoDment, or a grant thereof, executed and ao- 
knowledffed : 

1 . By the husband and wife, if the claimant is married ; 

2. By the claimant, if unmarried. 
68 Cal. 15. 

§ 1244. A declaration of abandonmrnt is effectual onlj 
from the time it is tiled in the office iu which the homestead 
ira3 recorded. 

§ 1246. Wlien an execution for the enforcemont of a 
mdgmeut obtained in a case not wiihin the classes cnunicmred 
m section 1241, is levied upon the homestead, tlic jud;rnieut 
creditor may apply to the Superior Court of the county in 
which the homestead U situated for tlie appointment of |H*r- 
sons to appraise the value thereof. [In effect April 5, 1 880.J 

§ 1246. The application must be made upon a verifted 
petition, showing : 

1. The fact that an execution has been levied upon the 
homestead ; 

2. The name of the claimant ; 

3. That the value of the homestead exceeds the amount of 
the homestead exemption. 

§ 1247. The petition must be filed with the clerk of the 
Superior Court. [In effect April 5, 1880.] 

§ 1248. A copy of the petition, with a notice of the time 
and place of hearing, must be served upon the claimant, at 
least two days before the hearing. 

§ 1 249. At the hearing the judge may, upon proof of the 
lervice of a copy of the petition and notice, and of the facts 
Itated in the petition, appoint three disinterested residents of 
the county to appraise the value of the homestead. 

§ 1 260. The persons appointed, before entering upon the 
perf:rnjance of their duties, must take an oatli to faithfully 
Dcrtorm the same. 

§ 1261. They must view the premises and appraise the 
lulue thereof, and if the appraised value exceeds the home- 
^ead exemption they must determine whether the land 
riaimed can be divided without material injury. 



{§ 1252-1260 HOMESTEADS. 18€ 

§ 1252. 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 deternunation upi)n 
the matter of a divit^ion of the land claimed. 

§ 1253. If, from the report, it appears to the Jndge that the 
land claimed can be divided without material injury, he must, 
by an order, direct the appraisers to set off to the claimant so 
much of the land, including the residence, as will amount in 
value to the homestead exemption, and the execution may be 
enforced against the remainder of the land. 
62 Cal. 630. 

§ 1 254. If, from the report, it appears to the judge that th« 
land claimed exceeds in value the amount of the homestead 
exemption, and that it cannot be divided, he must make an 
order directing its sale under the execution. 

§ 1255. At such sale no bid must be received, unless it ex- 
ceeds the amount of the homestead exemption. 

§ 1256. If the sale is made, the proceeds thereof, to the 
amount of the homestead exemption, must be paid to the 
claimant, and the balance applied to the satisfaction of the 
execution. 

§ 1257. The money paid to the claimant is entitled, for the 
period of six months thereafter, to the same protection against 
legal process and the voluntary disposition of the husband, 
ivhich the law gives to the homestead. [In effect July 1, 
.874.] 

§ 1258. The court must fix the compensation of the ap- 
praisers, not to exceed five dollars per day each for the time 
actually engaged. 

§ 1259. The execution creditor must pay the costs of these 
proceedings in the first instance; but in the cases provided fof 
m sections 1253 and 12.54 the amount so paid must be added 
B8 costs on execution, and collected accordingly. 

§ 1260. Homesteads may be selected and claimed : 

1. Of not exceeding five thousand dollars in value by anj 
Head of a family ; 

2. Of not exceeding one thousand dollars in value bv «Bf 
•Cher person. ogzed ^^ ' 



IS7 HOMESTEADS. §§ 1261-1263 

§ 1261. The phrase " head of a family," as used in thistitl<^ 
mcludes within its meaning: 

1. The husband, when the chumant is a married person: 

2. Every person who has residing on ihe premises with him 
or her and under his or her care and maintenance, either : 

(1.) His or her minor child, or the minor child of his or he? 
deceased witie or husband ; 

(a.) A minor brother or sister, or the mingr child of a de- 
ceased 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 a;;e of majoritv, 
and are unable to take care of or support themselves. [In 
effect July 1, 1874.] 

Property exempt from execution to be set apart for family. Code CiT 
Pxoo. S$ 1466-1470. 



CHAPTER II. 
HOMESTEAD OF THE HEAD OF A FAMILY. 

BiOTiOH 1262. Mode of selection. 

1263. Declaratien of homestead. 

1264. Declaration must be recorded. 
1266. Tenure by which homestead i» held. 

§ 1262. In order to select a homestead, the husband or 
other head of a family, or in case the husband has not made 
iuch 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. [In 
effect July 1, 1874.] 

§ 1263. The declaration of homestead must contain : 

1. A statement, showing that the person making it is the 
Dead of a family ; or, when the declaration is made by the 
wife, showing that her husband has not made such declara- 
tion, 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. [In eflfect JolJ 
I, 1874.) 

62 Cal 686 -. 64 Cai 620 . 66 Cal 136. 



{§ 1264-1268 HOM£ST£ADs. Ids 

§ 1264. The declaration must be recorded in the office of 
liie recorder of the county in which tlie land is situated. 
Polit. Code, § 4235. 

§ 1266. From and after the time the declaration is filed foi 
record, the premises therein described constitute a homestead. 
If the selection was made by a married person from the com- 
munity property, the land, on the death of either of the 
ipouses, vests in the survivor, subject to no other liability thaji 
iuch as exists or has been created under the provisions of thif 
title; in other cases, upon the death of the person whost 
property was selected as a homestead, it shall go to his heir* 
or devisees, subject to the power of the Superior Court to as- 
sign the same for a limited period to the family of the dece- 
deut ; but in no case shall it be held liable for the debts of the 
owner, except as provided in this title. [In effecl April 5, 
1880.) 

Code Civ. Proc. §§ 1470, 1474. 

Homestead set apart by Probate Court Code Civ. Proc. 5§ 1474-1478 

60 Ca3 643 ; 62 Cal. 297; 64 Cal. 601. 



CHAPTER III. 
HOMESTEAD OF OTHER PERSONS. 

BMnoH 1266. Mode of selection. 

1267. Declaration of homestead. 

1268. Declaration must be recorded. 

1269. Effect of filing fur record the declaration of homestead. 

§ 1266. Any person other than the head of a family, in the 
iclectiou of a homestead, must execute and acknowledge, in 
the same manner as a ^rant of real property is acknowledged, 
R " Declaration of Homestead." 

§ 1267. The declaration must contain everything required 
Dy the second, third, and fourth subdivisions of section 1263. 

§ 1268. The declaration must be recorded in the office ol 
Ihe county recorder of the county in which the land is al 
aated. 

Pout. Code, S 4286 rr-.^n\o 

'■ Digitized by V^OOQIC 



/89 WILLS. § 1269 

§ 1269. From and aftfrthe time the declaraUon is filed 
Ibr record, the land described therein id a homestead. 



TITLE VI. 
WILLS. 



Chapter 1. ExECunoN and Revocation of Wills, §§ 1970- 
1313. 
II. Intkrpretation op Wills, §§ 1317-1351. 
III. General Provisions rklatixo to Wills, §| 
1357-1377. 



CHAPTER I. ^ 
EXECUTION AND REVOCATION OF WILL*. 

FsonoR 1270. Who may make a will. 

1271. Monomaniac incompetent. (Repealed.) 

1272. Will, or part thereof, procured by fraud 

1273. Separate property of married women. 

1274. What may pass by will. 
1276. WTio may take by will. 

1276. Written will, how to be executed. 

1277. Definition of an olographic will. 

1278. Witness to add residence. 

1279. Mutual will. 

1280. Competency of subscribing witness. 

1281. Conditional will. 

1282. Gifts to subscribing witnesses Told. Creditom competent 

witnesses. 
1288. Witce«8 who is a deyisee, and who would be entitled Is 
share of testator's estate if no will, entitled to shATO Is 
amount of -devise. 

1284. Will made out of this State. (Repealed.) 

1285. Will not duly executed, void. 

1286. Subsequent change of domicile. (Repealed.) 

1287. Republication by codicil. 

1288. Nuncupative will, how to be executed. 

1289. Requiitites of a valid nuncupative wliL 

1290. Proof of nuncupative wills. 

1291. Probate of nuncupative wills. ^ j 
12ft2. Written will, how revoked. ugitizedbyV^OOgie 
t9b3. £videuce of revocation 

13 



i§ 1270-1274 WILLS. 190 

Bwxiov 1294. Reyocation by obliteration on face of will. (Repealed.) 

1295. ReTocation of duplicate. 

1296. Revocation by subsequent will. 

1297. Antecedent not reyiyed by reyooation of ralMeqiiaat wOi. 
^ 1298. Reyocation by marriage and birth of issue. 

Pi. 1299. Effect of marriage of a man on his will. 

•« 18<J0. Effect of a marriage of a woman on her will. 

1301. Contract of sale not a reyocation. 

1302. Mortgage not a reyocation of will. 

1303. Conveyance, when not a revocation. 

1304. When it is a revocation. 
1306. Reyocation of codicils. 

1306. Afterbom child, unprovided for, to succeed. 

1307. Children or issue of children of testator unprovided for bj 

his will. 
1806. Share of afterbom child, out of what part of estate to h% 

paid. 
13^>9. Advancement during lifetime of testator. '^ 
1^0. Death of devisee, being relation of testator, in lifetime ol 

testator, leaving lineal descendants. 

1811. Devises of land, how construed. 

1812. Will to pass rights acquired after the making thereof. 
X813. Restriction to devise for charitable uses. 

§ ""270. Every person over the age of eighteen years, otf 
lound mind, may, ^ last will, dispose of all his estate, real 
vio personal, and such estate not disposed of by will is sao- 
ceeded to wi provided in Title VII. of this part, being charge- 
able in both ciises with the payment of all the decedent's delj4», 
as provided in the Code of Civil Procedure. 

§ 1271 of said Code is repealed. [In eflbct July 1, 1874.] 

§ 1272. A will, or a part of a will, procured to be made 
by duress, menace, fraud, or undue influence, may be denied 
probate ; and a revocation, procured by the same means, iqbj 
be declared void. 

Code Civil Procedure, § 1312. 

§ 1273. A married woman may dispose of all her separatf 
estate by will, without the consent of tier husband, ana ma^ 
alter or revoke the will in like manner as if she were sin?l«. 
Her will must be executed and proved in like manner as ouer 
i^ills. [lu effect July 1, 1874.] 

§ 1274. Every estate and interest in real or persona, 
property, to which heirs, husband, widow, or next of kia 
mii4ht succeed, may be disposed of by will, except as otliorwiiw 
provided in sections 1401 and 1402. Cn,n^n\o 

uigitized by VJWVJVIC 



91 WILLS. §§ 1276-1280 

V^ § 1275. A testamenta^T^ disposition may be made to any 
[1^ person capable by law of taking the property so disposed of, 
^ except corporations other than those formed for scientific, lit- 
J erary, oi solely educational purposes, cannot take under a 
^■l will, unless expressly authorized by statute. Efiect immedS- 
^ ately. [Approved January 29, 1874.] 

§ 1276. Every will, other than a nuncupative will, must 
be in writing ; and every will, other than an olographic will, 
tnd a nuncupative will, must be executed and attested as fol- 
lows: 

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 at- 
testing 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 
custrument is his will ; and, 

4. There must be two attesting witnesses, each of whom 
must sign his name as a witness, at the end of the will, at the 
testator's request, and in his presence. 

54Cal.517. 

§ 1277. An olographic will is one that is entirely written, 
dated, and signed by the hand of the testator . himself . It is 
subject to no other form, and may be made in or out of this 
State, and need not be witnessed. 

May be pToven in aame manner as other private writings. Code OMI 
Procedure, § 1809. 

§ 1278. A witness to a written will must write, with his 
name, his place of residence; and a person who subscribes the 
testator's name, by his direction, must write his own name as 
a witness to the will. But a violation of this section does not 
aftect the validity of the will. 

64 0al.618. 

§ 1279. A conjoint or mutual will is valid, but it may be 
revoked by any of the testators, in like manner with any othei 
Rrill. 

68Cal. 830. 

§ 1280. If the subscribing witnesses to a will are com^ 
t€-nt at the time of attesting its execution, their subsequent m- 
torn potency, from whatever cause it may arise, does not pre- 



I 



i§ 1281-1289 wiirU. IM 

vent the probate and allowance of the will, if it is otherwian 
■atisfactorily proved. 

§ 1281. A will, the validity of which is made by its own 
terms conditional, may be denied probate, according to the^i 
event, with reference to the condition. - 

§ 1282. All beneficial devises, legacies, and gifts whatever, 
made or j^iven in any will to a subscnbing witness thereto, are 
void, unless there are two other competent subscribing wit- 
nesses to tiie same ; but a mere charge on the estate of the 
testator for the payment of debts does not prevent his credit- 
ors from being competent witnesses to his wilL 

§ 1 283. If a witness, to whom any beneficial devise, legacy, 
or gift, void by the preceding section, is made, would have 
lieen entitled to any share of the estate of the testator, in case 
the will should not be established, be succeeds to so much of 
the share as would be distributed to him, not exceeding the 
devise or bequest made to him in the will, and he may recover 
the same of the other devisees or legatees named in the will, 
in pro}x>rtion to and out of the parts devised or bequeathed 
to them. [In effect July 1, 1874.] 

§ 1284 of said Code is repealed. [In effect July 1, 1874.] 

§ 1285. No will made out of this State is valid as a will 
hi this State, unless executed according to the provisions of 
this chapter. [In effect July 1, 1874.] 

Code Civ. Proc. § 1322. 

§ 1286 of said Code is repealed. [In eflect July 1, 1874.] 

§ 1287. The execution of a codicil/ referring to a pre- 
vious will, has the effect to republish the will, as modified by 

the codicil. 

§ 1288. A nuncupative will is not required to be in writ- 
ing, nor to be declared or attested with any formalities. 
Uow admitted to probate. Code Civ. Proc. § 1344. 

§ 1289. To make a nuncupative will valid, and to entitle 
it to be admitted to probate, the following requisites miut bt 

•^•^^^^ • ugitized by GoOglc 



193 WILLS. §§ 1290-1293 

1 . The estate bequeathed must not exceed in value the sum 
of one thousand dollars ; 

2. It nuist be proved by two witnesses who were present at 
the making thereof, one of whom was asked by the testator, 
at the time to bear witness that such was his will, or to that 
effect ; 

3. The decedent must, at the time, have been in actual 
military service in the field, or doing duty on shipboard at 
»ea, 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. [In effect July 1, 1874.] 

§ 1 290. No proof must be received of any nuncupative will, 
unless it is offered within six months after speaking the testa- 
mentary words, nor unless the words, or the sub>tance thereof, 
were reduced to writing within thirty days after they were 
spoken. 

Code Civ. Proc. § 1344. 

§ 1291. No probate of any nuncupative will must be 
granted for fourteen days after the death of the testator, nor 
must any nuncupative will be at any time proved, unless the 
testamentary words, or the substance thereof, be first com- 
mitted to writing, and process issued to call in the widow, or 
other persons interested, to contest the probate of such will, if 
they tnink proper. 

Code Civ. Proc. § 1945. 

§ 1292. Except in the cases in this chapter mentioned, 
no written will, nor any part thereof, can be revoked or al- 
tered 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, 

2. By being burnt, torn, cancelled, obliterated, or destroyed, 
with the intent and for the purpose of revoking the same, by 
the testator himself, or by some person in his presence and by 
vis direction. 

f 1293. When a will is cancelled or destroyed by any 
tther person than the testator, the dii-ection of the testator 



§§ 1294-1301 WILLS. ?Vk 

and the fact of such injary or destrnction, mast be proved bf 
^wo witnesses. 

§ 1294 of said Code is repealed. [In effect July 1, 1874.] 

§ 1295. The revocation of a will, executed in duplicate^ 
ma/ be made by revoking one of the duplicates. 

§ 1296. A prior will is not revoked by a subsequent will, 
unless the latter contains an express revocation, or provision! 
wholly inconsistent with the terms of the former will ; but in 
other cases the prior will remains effectual so far as consistent 
with the provisions of the subsequent will. 

§ 1297. If, after making a will, the testator duly makes 
Mid executes a second will, the destruction, cancellation, or 
revocation of such second will does not revive the first wiU, 
unless it appt3ars by the terms of such revocation that it wac 
the intention to revive and give effect to the first will, or un- 
less, after such destruction, cancellation, or revocation, the 
first will is duly republished. 

§ 1298. If, after having made a will, the testator mar- 
ries, and has issue of such marriage, born either in his lifetime 
or after his death, and the wife or issue survives him, the will 
is revoked, unless 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 inten- 
tion not to make such provision ; and no other evidence to 
rebut the presumption oi such revocation can be received. 

§ 1299. If, after making a will, the testator marries, and 
the wife survives the testator, the will is revoked, unless pro- 
vision has been made for her by marriage contract, or unless 
Rhe is provided for in the will, or in such way mentioned 
Ilierein as to show an intention not to make such provision ; 
ttiid no other evidence to rebut the presumption of revocation 
tinst be received. 

§ 1 300. A will, executed by an unmarried woman, is re- 
roked by Iut subsequent marriage, and is not revived by tlM 
ieath of her husband. 

§ 1301. An agreement made by a testator, for the m1« « 



19o WILLS. §§ 1302-1807 

IraiiBfei of property dispjosed of by a will previously made^ 
does not revoke such disposal ; bat the property passes by 
the will, subject to the same remedies on the testator's agree* 
ment, fur a specific performance or otherwise against the der 
isees or legatees, as might be had against the testator s sac 
cessors, if the same had passed by succession. 

§ 1802. A charge or incumbrance upon any estate, for the 
purpose of securing the payment of money or the performance 
of any covenant or agreement, is not a revocation of any will 
relating to the same estate which was previously executed ; 
bat the devise and leg^acies therein contained must pass, sub- 
ject to such charge or mcumbrance. 

§ 1808. A conveyance, settlement, or other act of a tes- 
tator, by which his interest in a thing previously disposed of 
by his will is altered, but not wholly divested, is not a revoca- 
tion ; but the wUl passes the property which would otherwise 
devolve by succession. * 

§ 1804. If the instrument by which an alteration is made 
in the testator's interest in a thing previously disposed of by 
his will expresses his intent that it shall be a revocation, or if 
it contains provisions wholly inconsistent with the terms and 
nature of the testamentary disposition, it opei-ates as a revo- 
cation thereof, unless such inconsistent provisions depend on 
a condition or contingency by reason of which they do not 
take effect. 

§ 1806. The revocation of a will revokes all its codicils. 

§ 1806. Whenever a testator has a child born after the 
making of his will, either in his lifetime or after his death, and 
dies leaving such child unprovided for by any settlement, and 
neither provided for nor in any way mentioned in his will, the 
child succeeds to the same portion of the testator's real and 
personal property that he would have succeeded to if the tes- 
tator had died intestate. 

§ 1307. When any testator omits to provide in his will for 
smj of his children, or for the issue of any deceased child, 
tLiiless it appears that such omission was intentional, such 
thild, or the issue of suck shild, must have the same share io 
Ihe estate of the testator as if he had died intestate, and siuy 
^eds thereto as provided in the preceding section. ~ 

57 Cai: 484. 



if 1308-1812 iJ^iLLS. 1% 

§ 1808. When any share of the estater of a testator is a» 
iigned 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 te»- 
tetor in relation 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, coa> 
sistent with the intention of the testator, may be adopted. 

§ 1309. If such children, or their descendants, so unpro- 
vided for, had an equal proportion of the testator's estate be- 
stowed on them in the testator's lifetime, by way of advance- 
ment, they take nothing in virtue of the provisions of the three 
preceding sections. 

Code Civ. Proc. §§ ldl6, 1686. 

§ 1310. When any estate is devised to any child, or other 
relation of the testator, and the devisee dies before the te»- 
tator, leaving lineal descendants, such descendants take the 
estate so given by the will, in the same manner as the devisee 
would have done had he survived the testator. 

§ 1311. Every devise of land in any will conveys all the 
estate of the devisor therein, which he could lawfully devise, 
unless it clearly appears by the will that he intended to convey 
a less estate. 

§ 1312. Any estate, right, or interest in lands acquired 
by the testator after the making of his will, passes thereby 
md in like manner as if title thereto was vested in him at the 
time, of making the will, unless the contrary manifestly ap^ 
pears by t lie 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 sucb 
testator was entitled to devise at the time of his decease. Ill 
•ffect July I, 1874.] 
Ood« Civ. Proc. §§ 1298-1697. 

Digitized by VjOOQIC 



197 WILLS. § 1313 

§ 1313. No estate, real or personal, shall be bequeathed 
or devised to any charitable or benevolent society, or corpora- 
tion, or to any person or p)ersons in trust for charitable uses, 
except the sanie be done by will duly executed at least thirty 
days before the decease of the testator ; and if so made, ai 
least thirty days prior to such death, such devise or legacy, an i 
each of them, shall be valid ; pi'ovided, that no such dtvises oi 
bequests shall collectively exceed one third of the estate of the 
testator leaving legal heirs, and in such case a pro rata deduo> 
Hon from such devises or bequests shall be made so as to re-* 
duce the aggregate thereof to one. third of such estate ; and 
bU dispositions of property made contrary hereto shall be void, 
mnd go to the residuary legatee or devisee, next of kin, oi 
lieirs, according to law. [Approved March 18, 1874. Imme 
diate efibct.] 

58Cal.484,5A4. 



CHAPTER II. 

OTTBBPBETATION. OP WILLS. AND EFFECT OF 
VARIOUS PROVISIONS. 

jtoonoir 1317. Testator's intention to be carried out. 

1818. Intention to be ascertained from the will. 
1319. Rules of interpretation. 

1820. Several instruments are to be taken together. 

1821. Harmonizing various parts. 
1322. In what case devise not aifected. 

1823. When ambiguous or doubtful. 

1824. Words taken in ordinary sense. 

1826. Words to receive an operative construetion. 

1326. Intestacy to be avoided. 

1327. Effect of technical words. 
1828. Technical words not necessary. 

1329. Certain words not necessary to pass a fee. 

1830. Power to devise, how executed by terms of will. 

1831. Devise or bequest of all real or all personal property, of 

both. 
1882. Residuary clause. 
1333. Same 

1384. "Heirs," " relatives," « issue," " desoendanta," As. 
138ft. Words of donation and of limitation. 
1336. To what time words refer. 

1387. Devise or l>eques' to a class. 

1388. When conversion takes effect. 

1389. When child bom after testator's death takes nndnrirllL 
ISiO. Mistakes and omissiors. 

IML Allien devises and bequests vest. 

^9iS. >Vlien oanaot be divested. Cr^r^r(\r> 



($ £317-1324 WILLS. IM 

Biont g, 1S48. Death of deyiwe or legatee. * 

1344. Interests in remainder are not affected 

1345. Conditional devines and bequests. 

1346. ( 'ondition precedent, what. 
1847. Effect of condition precedent. 

1348. Conditions precedent, when deemed performed. 

1349. Condition subsequent, what. 

13o0. Devisees, &c., take as tenants in common 
1351. Advancements, when ademptions. 

§ 1317. A will is to be construed according to the inten- 
tion of tlie testator. Where his intention cannot have effect 
to its full extent, it must have effect as far as possible. 

§ 1318. In case of uncertainty arising upon the face of m 
wiU, as to the application of any of its provisions, the testa- 
tor'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. 

§ 1319. In interpreting a will, subject to the law of this 
'Jgtate, the rules prescribed by the following sections of this 
cnapter are to be observed, unless an intention to the contrary 
clearly appears. 

§ 1320. Several testamentary instruments, executed by 
the same testator, are to be taken and construed together as 
one instrument. 

** § 1321. All the parts of a will are to be construed in re- 
lation to each other, and so as, if possible, to form one con- 
sistent whole; but where several parts are absolutely in-econ- 
tilable, the latter must prevail. 

§ 1322. A clear and distinct devise or bequest cannot he 
affected by any reasons assitrned therefor, or by any other 
words not ecjually clear and distinct, or by inference or arga 
ment from other parts of the will, or by an inaccurate recital 
of or reference* to its contents in another part of the will. 

§ 1323. Where the meaning of any part of a will is am 
biguoub or doubtful, it may be explained by anv referenoe 
» hereto, or recital thereof, in another part of the will. 

§ 1324. The words of a will are to be taken in their ordt 
#ary and grammatical sense, unless a clear intention to UN 



199 wiLM. $§ 1325-1334 

them in another aensi can be ocdlecteo, aad that other can be 
BjBcertained. 

§ 1325. The words of a will are to receive an interpreta- 
tion which will give to every expression some effect, rathei 
than one which will render any of the expressions inopera- 
tive. 

§ 1326. Of two modes of interpreting a will, that is to b« 
pieferred which will prevent a total intestacy. 

§ 1327. Teohuical words in a will are to be taken in theii 
technical sense, unless the context clearly indicates a contrary 
intention. 

§ 1328. Technical words are not necessary to give effect 
•x> any species of disposition by a will. 

§ 1329. The term "heirs," or other words of inheritance, 
are not requisite to devise a fee, and a devise of real property 
passes all the estate of the testator, unless otherwise Umited. 

§ 1330. Heal or personal property embraced in a power 
to devise passes by a will purporting to devise all the real or 
personal property of the testator. 

§ 1331. A devise or bequest of all the testator's real or 
personal property, in express terms, or in any other terms 
denoting his intent to dispose of all his real or personal prop- 
erty, passes all the real or personal property which he was en- 
titled to dispose of by will at the time of his death. 

§ 1332. A devise of the residue of the testator's real prop- 
erty pisses all the real property which he was entitled to de- 
vise at the time of his death, not otherwise effectually devised 
by his will. [In effect July 1, 1874.] 

§ 1333. A bequest of the residue of the testator's personal 
property passes all the personal property which he was en- 
titled to bequeath at the time of his death, not otherwise 
effectually bequeathed by his will. [In effect July 1, 1874.] 

§ 1334. A testamentary disnosition to "heirs," "rela* 
^Bs/' " nearest relations," " representatives," ' legal 



|§ 1336-1341 WILLS. a^l 

icntatives," or " personal representatives," or " family," " is- 
sue," "descendants," "nearest" or "next of kin" of any 
person, without other words of qualification, and when the 
terms are used as words of donation, and not of limitation, 
vests the ])roperty in those who would be entitled to succeed 
to the property of such person, according to the provisions cf 
the Title on Succession in this Code. 

§ 1335. The temis mentioned in the'last section are used 
as words of donation, and not of limitation, when the prop- 
erty is jj^iven to the person so designated directly, and not as 
R ({ualification of an estate given to the ancestor of such per- 
son. 

§ 1336. Words in a will referring to death or survivor- 
ship, simply, relate to the time of the testator's death, unless 
possession is actually postponed, when they must be referred 
to th& time of possession. 

§ 1337. A testamentary disposition to a class includes 
every person answering the description at the testator's death ; 
but when the possession is postponed to a future period, it 
includes also all persons coming witliin the description before 
the time to which possession is postponed. 

§ 1338. When a will directs the conversion of real prop- 
erty into money, such property and all its proceeds must be 
deemed personal property from the time of the testator's 
death. 

§ 1339. A child conceived before, but not bom until after 
a testator's death, or any other period when a disposition to a 
class vests in ri<2:ht or in possession, takes, if answering to the 
description of the class. 

§ 1340. When, applying a will, it is found that there is 
an imperfect description, or that no person or property exactly 
answers the description, mistakes and omissions must be cor^ 
rected, if the error appears from the context of the will at 
from extrinsic evidence ; but evidence of the declarations of the 
testator as to his intentions cannot be received. 

§ 1341. Testamentary dispositions, including devises ud 

l»eqnests to a person on attaining majority, are presamed It 

lit at the testator's death. ^ F^uiuw. m 



tOl WILLS. §§ 1842-1351 

§ 1342. A testamentary disposition, when rested, cannot 
be divested unless upon the occurrence of the precise contin' 
gency prescribed by the testator for that puq>ose. 

§ 1343. 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 provided in section thirteen hundred and ten. [In 
effect July 1, 1874 ] 

§ 1 344. The death of a devisee or legatee of a limited in- 
terest before tlie testator's death does not defeat the interests 
of persons in remainder, who snrvive the testator. 

§ 1346. A conditional disposition is one which depends 
npon the occurrence of some uncertain event, by which it is 
either to take effect or be defeated. 

§ 1 346. A condition precedent in a will is one which is 
required to be fulfilled before a particular disposition takes 
effitct. 

§ 1347. Where a testamentary disposition is made upon 
a condition precedent, nothing vests until the condition is ful- 
filled, except 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 ft'om an unavoidable event subsequent to the execution 
of the will. 

§ 1348. A condition precedent in a will is to be deemed 
performed when the testator's intention has been substantially, 
though not literally, complied with. 

§ 1349. A condition subsequent is where an estate or in- 
terest is so given as to vest immediately, subject only to be 
divested by some subsequent act or event. 

^ 1350. A devise or legacy given to more than one person 
Tests in them as owners in common. 

§ 1361. Advancements or gifts are not to be taken M 
Ibdismptions of general legacies, unless such intentioin is ei» 
by the testator in writing. 



f 1867 WILLS. SOI 

CHAPTER IIL 
GENERAL PROVISIONS. 

MonOH 1867. Nature and designatioDS of legaciet 

1. Specific; 

2. DemonRtrative i 
8. AnnuitieH ; 

4. Residuary ; 

6. General. 
1858. Order of sale in case of an inteitato 
1869. Order of sale in case of a testator. 
1360. Legacies, l&ow charged with debts. 

1861. Same. 

1862. Abatement. 

1868. Specific devifiefi and legacies. 

1864 Heir's conveyance good, unl^ will is proved vtthin 9om 

years. 
1866. Possession of legatees. 

1366. Bequest of interest. 

1367. Satisfaction. 

1868. Legacies, when due. 

1869. Interest. 

1870. Construction of these rules. 

1371. Executor according to the tenor 

1372. Power to appoint is inyalid. 
1878. Executor not to act till qualifled 
1874. ProTisions as to revocations. 

1375. Execution and construction of prior wills not affected. 

1876. The law of what place applies. 

1877. Liability of beneficiaries for testator^s obligatioDS. 

§ 1857. Legacies are distinguished and designated, ac- 
cording to their nature, as follows : 

1. A lejracy of a particular thing, specified and distinguished 
from all others of the same kind belonging to the testator, is 
specific ; if such legacy fails, resort cannot be had to the 
other property of the testator ; 

2. A legacy is demonstrative when the particular fund or 
personal property is pointed out from which it is to be taken 
or paid ; if such fund or property fails, in whole or in part, re- 
sort may be had to the general assets, as in case of a general 
legucy ; 

3. An annnity is a beqnest of certain specified sums peri 
»dically ; if the fund or property out of wnich they are paj"- 
Rble fails, resort may be nad to the general assets, aa in casa 
Df a general legacy ; 

4. A residuary legacy embraces only that which remate 
•Iter all the bequests of the will are discharged ; 

6. All other legacies are general legacies. 



203 WILLS. §§ 1358-1363 

§ 1368. When a person dies intestate, all his proj)ertT, real 
Biid personal, without any distinction between them, is charge- 
able with the pa3rment of his debts, except as otherwise pro- 
vided in this Code and the Code of Civil Procedure. [In 
effect July 1, 1874.] 

Code GlT. Proe. §§ 1464-1486, 1616, 1619, 166^1668. 

§ 1359. The property of a testator, except as otherwise 
specially provided for in this Code and the Code of Civil Pro- 
cedure, must be resorted to for the payment of debts, in th« 
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 



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. [In effect July 1, 1874.] 

Code Civ. Proc. §§ 1616-1538, 1659-1660 ; Sales of Personal Property, 
K 1622-1653 ; Payment of Legacies, &e:, §§ 1668-1669 ; lb. 1663, 1664. 

§ 1360. 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 legacies, in the 
following order : 

1. The property which is expressly appropriated by the will 
fbr 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. 
[In effect July 1, 1874.] 

Code Civ. Proc. $ 1669. 

§ 1361. Legacies to husband, widow, or kindred of any 
ela.s8 are chargeable only after legacies to persons not related 
to the testator. 

Code Civ. Proc. $ 1669 

§ 1362. Abatement takes place in any class only as h^ 
tween legacies of that class, unless a different intention is ez 
pressed in the will. 



|§ 1363>1369 wiLLi. 204 

§ 1363. In a specific devise or legacy, the title p&jses by 
khewill, but possession can only be obtained from the pers^onal 
representative ; and he may be authorized by the Superior 
Court to sell the property devised and bequeathed, in the carai 
herein provided. [In effect April 5, 1880.] 

§ 1364. The rights of a purchaser or incumbrancer of real 
property, in good faith and for value, derived from any person 
claiming the same by succession, are not impaired by any de- 
vise made by the decedent from whom succession is claimed, 
nnless the instrument containing such devise is duly proved 
as a will, and recorded in the office of the clerk of the Supe- 
rior Court having jurisdiction thereof, or unless written notice 
of such devise is filed with the clerk of the county where the 
real property is situated, within four years after the devisor's 
death. [In effect April 5, 1880.] 

Code Civ. Pioo. §§ 13U, 1818. 

§ 1365. Where specific legacies are for life only, the first 
legatee must sign and deliver to the second legatee, or, if 
there is none, to the personal representative, an inventory of 
the property, 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 i*epresentative, as the case may be. 

§ 1366. In case of a bequest of the interest or income of 
B certain sum or fund, the income accrues from the testator's 
death. 

§ 1367. A legacy, or a gift in contemplation, fear, or peril 
of death, may be satisfied before death. [In effect July 1, 
874.] 

§ 1368. Legacies are due and deliverable at the expira- 
tion of one year after the testator's decease. Annuities com* 
mence at the testator's decease. 

60 Gal. 247. 

§ 1369. Legacies benr interest from the time ^hen thcjr 
%re due and payable, except that legacies for maintenance, ot 
to th«) testator's widow, bear interest from the testator's d» 
lease. 

60 CW. 247 Digitized by GoOglC 



£(K> WILLS. §§ 1370-1377 

§ 1370. The four prertsding sections are in all cases to be 
controlled by a testator's express intention. 

§ 1371. Where it appears, by the terms of a will, that it 
was the intention 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 enti* 
tied to letters testamentary in like manner as if he had been 
named executor. 
Ccd4 ClT. Proc. §§ 1349, 1853. 

§ 1372. An authority to an executor to appoint an ax 
ecutor is void. 
Code OlT. Proc. § 1358. 

§ 1373. No person has any power, as an executor, until 
he qualifies, except that, before lettera have been issued, he 
may pay funeral charges and take necessary measures for the 
preservation of the estate. 

Code CiT. Proc. §§ 1349, 1643. 

§ 1374. The provisions of this title in relation to the rev 
ocation of wills apply to all wills made by any testator living 
at the expiration of one year from the time it takes effect. 

§ 1376. The provisions of this title do not impair the ra 
Udity of the execution of any will made before it takes effect, . 
or atifect the construction of any such will. 

§ 1376. The validity and interpretation of wills, wherever 
made, are governed, when relating to property within this 
State, by the law of this State. [In effect July 1, 1874.] 

§ 1377. Those to whom property is given by will are Ha- 
hlo for the obligations of the testator in the cases and to the 
txteut prescribed by the Code of Civil Procedure. 

a 1270-1377, CiT. Code. See Codf Ciy. PrCK^: §§ 14^3-1463, 165L 
14 



,y Google 



|§ 1383-1386 snecESUoir. j 

TITLE Vn. 

SUCCESSION. 

Bmiior 1883. Suceession defined. 

1384. Who first succeeds to possession of estatefl not deviM& 

1386. Succession to and distribution of property. 

1387. Ill^itimate children to inherit in certain eyentl 

1388. The mother is successor to iil^timate chUd. 
138d-139B. Degrees of kindred, how computed. 

1394. Kelatives of the half blood. 

1395. Advancements cont*titute part of distributiTe a . 

1396. AdyancemeDta, when too much, or not enough. 

1897. What are adTancements. 

1898. Value of adTancements, how determined. 

1399. When heir, advanced to, dies before decedent. 

1400. Inheritance of husband and wife from each oth«r. 

1401. Distribution of the common property on death of wife. 

1402. Distribution of common property on death of huabiUML 
1406. Inheritance by repremntation. 

1404. Aliens may inherit, when, and how 

1405. Succession not claimed, attorney general to cauae to bt 

sold, and proceeds deposited. 

1406. When the property and estate escheat to the State. 

1407. Property escheated subject to charges as other property. 

1408. Successor liable for decedent's obligations. 

§ 1383. Succession is the coining in of another to take 
the property of one who dies without disposinir of it by will. 

62 Cal 298. 

§ 1384. The property, both real and personal, of one who 
dies without disposing of it by will, passes to the heirs of the 
intestate, subject to the control of tne probate court, and tc 
the possession of any .administrator appointed by that court 
for the purposes of udministraiion. [In eilect July 1, 1874 ] 
• Code CiT. Proc. § 1452. 

§ 1385 of said Code is repealed. [In effect July 1, 1374. 

§ 1386. When any person having title to any estate not 
otherwise limited by marriage contract, dies without disposing 
of the estate by will, it is succeeded to and must be distributee^ 
(luless otlierwise expressly provided in this Code and the Code 
of Civil Procedure, subject to the payment of his debts, ii 
the following manner. : 

1. If the decedent leave a surviving husbaiwhor^^wife, a^ 



107 8t7CCB88ION. S 1386 

Dnlj one child, or the lawful issne of one child, in equal iharefl 
to the surviving husband, or wife and child, or issue of snch 
child. If the decedent leave 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 surviv- 
ing husband or wife, and tlie remainder in equal shares to his 
children, and to the lawful issne of any deceased child, by 
right of representation ; but if there be no child of the dece- 
dent living at his death, the remainder goes to all of his lineal 
iescendants ; and if all of the' descendants are m the same de- 
gree of kindred to the decedent, they share equally, otherwise 
they take according to the right of representation. If the de- 
cedent leave no surviving husband or wife, but U'ave issue, the 
whole estate goes to such issue ; and if such issue consists of 
more than one child liN^ng, or one child Hving, and the lawful 
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 repre- 
sentation ; 

2. If the decedent leave no issue, the estate goes one half to 
the surviving husband or wife, and the other to the decedent's 
father and mother in equal shares, and if either be dead the 
whole of said half goes to the other. If there be no father or 
mother, then one half goes in equal shares to the brothers and 
sisters of the decedent, and to the children of any deceased 
brother or sister, by right of representation. If the decedent 
leave no issue, nor husband nor wife, the estate must go to hii 
father and mother in equal shares, or if either be dead then to 
the other ; 

3. If there be neither issue, husband, wife, father, nor mother, 
then in equal shares to the brothei-s and sisters of the dece- 
dent, and to the children of any deceased brother or sister, by 
right of representation ; 

5. If the decedent have a surviving husband or wife, and 
ueither issue, father, mother, brother, nor sister, the whole es- 
tate goes to the surviving husband or wife ; 

6. If the decedent leave neither issue, husband, wife, father, 
mother, brother, nor sister, the estate must go to the next of 
kin, in equal de^ee, excepting that when there are two or 
Dtore collateral kindred, in equal degree, but claiming through 
differeut ancestors, those who claimed through the nearest an- 
testors must be preferred to those claiming through an ances 
lor more remote ; 

7. If the decedent leave several children, or one child and 



I 1387 lucGEBSioir. 208 

the i88ne of one or more children, and anj snch snnuYing child 
dies under age, and not having been married, all the estate 
that came to the deceased child by inlieritance from such de- 
cedent descends in equal shares to the other children of the 
Bame parent, and to the issue of any such other children who 
are dead, by right of .representation ; 

8. 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 have left issue, the estate thai 
came to such child by inheiitance 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 this 
right of representation ; 

9. If the decedent be a widow or widower, and leave no kin- 
dred, and the estate or any portion thereof was common prop- 
erty of such decedent and his or her deceased spouse, while 
fiuch a spouse was living, such common property shall go to 
the father of such deceased spouse, or if he be dead, to the 
mother. If there be no father nor mother, then such property 
shall ;ro to the brothers and sisters of such deceased spouse, in 
equal shares, and to the lawful issue of any deceased brother 
or sister of such deceased spouse, by right of representation ; 

10. If the decedent have no husband, wife, or kindred, and 
there be no heirs to take his estate or any portion thereof, under 
subdivision nine of this section, the same escheats to the State 
for the support of common schools. [In effect April 23, 1880.J 

Code CiT. Proo. §§ 1462-li68, 16S1, 16d8, 1264-1272, 1S65. 

§ 1387. Every illegitimate child is an heir of the person 
who, in writing, signed in the presence of a competent wit- 
ness, acknowledges himself to be the father of such child; 
as i 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 bom in lawful wedlock ; but 
he does not represent his father or mother by inheriting any 
part of the estate of his or her kindred, either lineal or collat 
eral, unless, before his death, his parents shall have intermar- 
ried, and his father, after such marriage, acknowledges him 
«8 his child, or adopts him into his family; in which case 
fuch child and all the legitimate children are considered 
brothers and sisters, and on the death of either of them, in- 
lestate, and without issue, the others inherit his estate, and 
ire heirs, as hereinbefore provided, in like manner ai U al 



209 BUCCS88IOV. §§ 1S88-1S94 

the children had heen legitimate; saying to the father and 
mother respectively their rights in the estates of all the chil- 
dren in like manner as if all had been legitimate. The issue 
of all marriages null in law, or dissolved by divorce, are legi^ 
imate. 

57 Cal. 484. 

§ 1388. If an illegitimate child, who has not been a^ 
knowledged or adopted by his father, dies intesute, without 
lawful issue, his estate goes to his mother, or, in case of hef 
decease, to her heirs at law. 

§ 1389. The degree of kindred is established by the 
number of generations, and each generation is called a do* 
gree. 

§ 1390. The series of degrees forms the line; the scries 
of degrees between persons 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. 

§ 1391. The direct line is divided into a direct line de- 
scending and a direct line ascending. The first is that which 
connects the ancestors with those who descend from him. The 
second is that which connects a person with those from whom 
be descends. 

§ 1392. In the direct line there arc as many degrees as 
there are generations. Thus, the son is, with regard to the 
father, in the first degree ; the grandson in the second ; and 
vice versa with regard to the father and grandfather toward 
the sons and grandsons. 

§ 1393. In the collateral line the degrees are counted by 
generations from one of the relations up to the common an 
eestor, and from the common ancestor to the other relations 
Vn such computation the decedent is excluded, the relative ift 
duded, and the ancestor counted but oiice. Thus, brothen 
are related in the second degree ; uncle and nephew in thft 
third degree ; cousins german m the fourth, and so on. 

§ 1894. Kindred of the half blood inherit equally with 
Jhose of the whole blood in the same degree, unless the inhwr- 



|§ 1396-1400 SUCCESSION. SIO 

itance come to the intestate hj descent, devise, or gift of some 
one of his ancestors, in which case all those who are not of 
the blood of such ancestor must be excluded from such iiiher> 
itance. 
Code Civ. Proc §1366. 

§ 1396. Any estate, real or personal, given by the deoo> 
dent in his lifetime as an advancement to any child, or oth^ 
lineal descendant, is a part of the estate of the decedent for 
the purposes of division and distribution thereof among his 
.'ssue, and must be taken by such child, or other lineal d^ 
Bcendant, toward his share of the estate of the decedent. 

§ 1396. If the amount of such advancement exceeds the 
share of the heir receiving the same, he must be excluded 
from any further portion m 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 hia 
full share of the estate of the decedent. 

§ 1397. All gifts and grants are made as advancements, 
if expressed in the gift or grant to be so made, or if charged 
in writing by the decedent as an advancement, or acknowl- 
edo^ed in writing as such, by the child or other successor or 
heir. 

§ 1398. If the value of the estate so advanced is ex- 
pressed in the conveyance, or in the charge thereof made by 
the decedent, or in the acknowledgment of the party receiving 
it, it must be held as of that value in the division and distri- 
bution of tho estate ; otherwise, it must be estimated according 
to its value when given, as nearly as the same can be ascetv 
tained. 

§ 1399. If any child, or other lineal descendant receivini^ 
advancement, dies before the decedent, leaving issue, the ad- 
vancement must be taken into consideration in the division 
and distribution of the estate, and the amount thereof must 
_e allowed accordingly by the representatives of the heirs re» 
tsiving the advancement, in like manner as if the advanott 
ment had been made directly to them. 

I 1400. The provisions of the prec^^|^^ji of tUt 



Ill snccESSiow. §§ 1401-1406 

litle, as to the inheritance of the husband and wife from each 
Dther, applj onlj to the separate property of the decedents. 

§ 1401. Upon the death of the wife, the entire commnnity 
property, without administration, belongs to the snniving 
nnsband, except such portion thereof as may have been set 
apart to her by judicial decree, for her support and main- 
tenance, which portion is subject to her testamentary dispo- 
iition, and in the absence of such disposition, goes to her de- 
scendants, or heirs, exclusive of her husband. [In effect July 
1, 1874.] 

§ 1402. Upon the death of the husband, one half of the 
community property goes to the surviving wife, and the other 
half is subject to the testamentary 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 kin- 
dred to the decedent; otherwise, according to the right of 
representation; and in the absence of both such disposition 
and such descendants, is subject to distribution in the same 
manner as the separate property of the husband. In case of 
the dissolution of the community by the death of the hus- 
band, the entire community property is equally snbject to his 
debts, the family allowance, and the charges and expenses of 
administration. 

§ 1403. Inheritance or succession "by right of represen- 
tation'' 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 
c'hUdren are considered as living at the death of their parents. 

§ 1404. Kesident aliens may take in all cases by succession 
HS citiasns ; and no person capable of succeeding under the 
provisions of this title is precluded from such succession by 
reason of the alienage of any relative; but no nonresident 
foreigner can take by succession unless he appears and claims 
Buch succession within five years after the death of the dece- 
dent to whom he claims succession. 

§ 1406. When, succession is not claimed as provided iu 
ihe preceding section, the District Court, on information, must 
direct the attorney general to reduce the property to Ikis or 
Jie pofsession of the State, or to cause the same to be Mid. 



S§ 1406-1408 WATER BIOHTfl. Slf 

Mid the same or the proceeds thereof to he deposited m thA 
itate treasury for the benefit of such non-iesident foreigner, 
or his legal representative, to be paid to him whenever, with- 
in five years after such deposit, proof to the satisfaction of the 
state comptroller and treasurer is produced that he is entitled 
to succeed thereto. 

§ 1406. When so claimed, the evidence and the joint or- 
der of the comptroller and treasurer must be filed by the 
treasurer as his voucher, and the property delivered or the 
proceeds paid to the claimant on filing his receipt therefor. 
If no one succeeds to the estate or the proceeds, as herein pro- 
vided, the property of the decedent devolves and escheats to 
the people of the State, and is placed by the state treasurer 
to the credit of the school fund. 

§ 1407. Heal property passing to the State nnder the last 
section, whether held by the State or its officers, is subject to 
the same charges and trusts to which it would have been sub- 
iect if it had passed by succession, and is also subject to all 
the provisions of Title VIII., Part III., of the Code of Civil 
Procedure. [§§ 1269-1272.] 

§ 1408. Those who succeed to the property of a deceden 
are liable for his obligations in the cases and to the extent 
prescribed by the Code of Civil Procedure. [§§ 1298-1809.] 



TITLE VIIL 
WATER RIGHTS. 

Imtion 1410. Bights to water may be acquired by approxirlaftitMi 

1411. Appropriation must be for a useful purpose. 

1412. Point of divereion may be changed. 

1413. Water may be turned into natural channels. 

1414. First in time, first in right. 
1416. Notice of appropriation. 

1416. Diligence in appropriating. 

1417. Completion delined. 

1418. Doctrine of relation applied 

1419. Forfeiture. 

1420. Rights of present claimant. 

?^- 5*P°'?®' ^ ^««P *>«>^ in which to r«cord notiMi. 
1432. This title not to affect rights of riparian i 



113 WATBK RIGHTS. $§1^10-1417 

§ 1410. The right to the use of running water flowing in 
R rirer or stream, or down a caSon or ravine, maj be aoqnired 
by appropriation. 

§ 1411. The appropriation must be for some nsefal or 
beneficial purpose, and when the appropriator or his successor 
In interest ceases to use it for such a purpose, the right ceases. 

§ 1412. The person entitled to the use maj change the 
place of diversion, if others are not injured by such change, 
and may extend the ditch, flume, pipe, or aqueduct by which 
the diversion is made to places beyond that where the first 
nse was made. 

§ 1413. The water appropriated maybe turned into the 
channel of another stream and mingled with its water, and 
then reclaimed ; but in reclaiming it the water already appro- 
priated by another must not be diminished. 

§ 1414. As between appropriators, the one first in time is 
the first in right. 

§ 1415. Aq)6rsoii^des{ring to af^propriate water inust post 
a notice, in wrmng, in a conspicuous phioe at the point of in- 
tended 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; 

^f 2. The purposes for which he claims it, and the place of in- 
' tended use ; 

' 3. The means by which he intends to divert it, and the size 
^ of the flume, ditch, pipe, or aqueduct in which he intends to 
divert it ; 

A copy of the notice must, within ten days after it is posted, 
be recorded in the office of the recorder of the county in which 
it is posted. 

S 1416. Within sixty days after the notice is posted, the 
claimant mast commence the excavation or construction of 
the works in which he intends to divert the water, and must 
prosecute the work diligently and uninterruptedly to com- 
Vetion, unless temporarily interrupted by snow or raia. 

§1417. By " completion " is meant conducting the waters 
%) the place of intended use. 






K 1418-1422 WATBR RIGHTS. 214 

§ 1418. By A compliance with the above mles the claim- 
Biit's right to the use of the water relates back to the time the 
notice w«8 posted. 

§ 1419. A failure to comply with snch rules deprives the 
claimants of the right to the use of the water as against a sub- 
sequent claimant who complies therewith. 

§ 1420. Persons who have heretofcwe claimed the ri^ht to 
water, and who have not constructed works in which to divert 
it, and who have not diverted nor applied it to some useful 
purpose, must, after this title takes effect, and within twenty 
days thereafter, proceed as in this title provided, or their right 



§ 1421. The recorder of each county must keep a book, 
a which he must record the notices provided for in this title. 

§ 1422.^epearea Marcft/s, 1887. 

See Act of April 1, 1872, To proT|Ue IrrigatioD, Appendix, p. 474. 



A t 



,y Google 



DIVISION THIRD 



Part L OBLIGATIONS IN GENERAL, §1 
1427-1543. 
TL CONTRACTS, §§ 1549-1701. 
in. OPLIGATIONS IMPOSED BY LAW, 

§§ 1708-1715. 
IV. OBLIGATIONS ARISING FROM 
PARTICbTAR TRANSACTIONS, 
ii 1721-3268. 



Digitized by VjOOQIC 



,y Google 



PART I. 



OBLIGATIONS IN GENERAL. 

ffiTUB L Definition of Obligations, §§ 1427-1428. 

II Intbrprbtation of Obligations, §§ 1429>1451 
IIL Transfer of Obligations, §§ 1457-1467. 
IV Extinction of Obligations, §§ 1479-1543. 



TITLE L 
DEFINITION OF OBLIGATIONS. 

Siotxoh1427. Obligatioii, whaft. 

1428. How created and enforced. 

§ 1427. An obligation is a legal duty, by which a peraoa 
Is bound to do or not to do a certain thing. 

§ 1428. An obligation arises either from : 

1. The contract of the parties; or, 

2. The operation of law. 

An obligation arising from operation of law may be en- 
forced in the manner provided by law, or by civil action oi 
proceeding. [In effect July 1, 1874.] 

66CaL218. 



TITLE n. 
INTERPRETATION OF OBLIGATIONS 

Chaftbr I. General Rulbs of Interpretation, § 1429. 
II. Joint or Several Obligations, §§ 1430-1432. 

III. Conditional Obligations, §| 1434-1442. 

IV. Alternative Obligations, {§ 1448-145L 



f§ 1429-1432 INTSRrKETATION OV OBLIOATIONB. 21t 

CHAPTER L 

GBNBBAIi BULBS OF INTBBPBBTATIOIT. 

Sxonovl429. General rales. 

§ 1429. The rules which govern the interpretation of 
Bon tracts are prescribed by Part II. of this diyision. Other 
obligations are interpreted by the same rules by which statute* 
of a similar nature are interpreted. 

66 C&l. 218. 



CHAPTER II. 
JOINT OB SEVBBAIi OBLIGATIONS. 

Sionoir 1480. Obligations, joint or seyeral, Ao. 

1481. When joint. 

1482. Contribution between joint partiet 

f 1430. An obligation imposed npon several persons, or 
% right created in favor of several persons, may be : 

1. Joint; 

2. Several ; or, 

3. Joint and several. 

§ 1431. An obligation imposed npon several persons, or 
a right created in favor of several persons, is presumed to be 
jomt, and not several, except in the special cases mentioned 
in the Title on the Interpretation of Contracts. This presump- 
tion, in the case of a right, can he overcome only by express 
words to the contrary. 

§ 1432. A party to a joint, or joint and several obliga- 
tion, who satisfies more than bis share of the claim against 
ftll, may require a proportioriate contribution from aU thi 
parties joined with him. 



,y Google 



119 IKTERPRSTATION OF OBLIGATIONS. §§ 14S4-1440 

CHAPTER IIL 

oonditionaIj obligations. 

0lonOH 1484. Obligation, when conditionaL 
14d5. Conditions, kinds of. 

1436. Conditions precedent. 

1437. Conditions concurrent. 

1438. Condition subsequent. 

1439. Performance, &c., of eonditione, when esMntial. 

1440. When performance, &c., excused. 

1441. Impossible or unlawful conditions Told. 

1442. Condicions involTing forfeiture, how construed. 

§ 1434. An obligation is conditional, when the rights O4 
duties of any party thereto depend upon the occurrence of aa 
uncertain event. 

§ 1435. Conditions may be precedent, concurrent, or 
subsequent. 

§ 1436. A condition precedent is one which is to be per- 
formed before some right dependent thereon accrues, or some 
act dependent thereon is performed. 

§ 1437. Conditions concurrent are those which are mut- 
ually dependent, and are to be performed at the' same time. 

68'Cal. 728. 

§ 1438. A condition subsequent is one referring to a fut- 
ure event, upon the happening of which the obligation be- 
comes no longer binding upon the other party, if he chooses 
to avail himself of the condition. 

§ 1439. 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 otfer to fulfil all conditions concurrent so imposed 
upon him on the like fulfilment by the other party, except ai 
pfovi4ed by the next section. 

§ 1440. If a party to an obligation gives notice to anothex 
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 othei 
party is entitled to enforce the obligation without previous!/ 



{§ 1441-1461 SNTERPRSTATIOir OF OBLIOATION8. 22C 

performing or offering to perform any conditions upon his part 
m favor of the former party. 

I 1441. A condition in a contract, the fulfilment of which 
is impossible or unlawful, within the meaning of the Article on 
the Object of Contracts, or which is repugnant to the nature 
of the interest created by the contract, is void. 

§ 1442. A condition involving a forfeiture must b6 
strictly interpreted against the party for whose benefit it is 
created. 



CHAPTER IV. 
ALTERNATIVE OBLIGATIONS. 

llonoH 1448. Who has the right of selection. 

1449. Right of select! on, how lost. 

1450. Altematires indiyisible. 

1451. Nullity of one or more of altematire obligations. 

§ 1448. If an obligation requires the performance of oim 
of two acts in the alternative, tne party required to perform 
has the right of selection, unless it is otherwise provided by 
the terms of the obligation. 

§ 1440. If the party having the right of selection be- 
.tween alternative acts does not give notice of his selection to 
the other party within the time, if any, fixed by the obligation 
for that purpose, or, if none is so fixed, before the time at 
which the oblijration ought to be performed, the right of seleo* 
tion passes to the other party. 

§ 1450. 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 con* 
«ent of the other party. 

§ 1461. If one of the alternative acts required by an ob 
ligation is such as the law will not enforce, or becomes unlaw 
hi\ or impossible of performance, the obligation is to be intw 
Dreted as though the other stood alone. 



,y Google 



331 TSAN8FBR OV OBLIGATIONS. §§ 1457-1462 

TITLE m. 
TRANSFER OF OBLIGATIONS. 

BMnoif 1457. Burden of obligation not tmnnferable. 

1458. Rights ariRinff out of obligatioo tmnsfenblc. 

1459. Non-n«gotiable instrumeuta may be transfecrei. 

1460. CoTenaotji running with land, what. 

1461. What eoTenanta run with land. 

1462. Same. 
1468. Same. 

1464. What eoTenants run with land whan anigna are namad. 
1466. Ulio are bound by coTenants. 

1466. Who are not. 

1467. Apportionment of eoTenanta 

§ 1467. The burden of an obligation may be transferred 
with the consent of the party entitled to its benefit, but not 
otherwise, except as provided by section 1466. 

§ 1458. A right arising ont of an obligation is the prop- 
erty of the person to whom it is due, and may be transferred 
as such. 

§ 1459. A non-negotiable written contract for the payment 
of money or periional pro|)erty may be transferred by indorse- 
ment, in like manner with negotiable in^truraent8. Such in- 
dorsement shall transfer ali the riu:ht8 of the assignor under 
the instrument to the assignee, subject to all equities and de- 
fences existing in lavor of the maker at the time of the in- 
dorsement. 
65Cal.l29; 67 Cal. 804. 

§ 1460. Certain covenants, contained in grants of estates 
in real property, are appurtenant to such estates, and pass with 
Ihem, so as to bind the assigns of the covenantor and to vest 
in the assigns of the covenantee, in the same manner as it 
thev had personally entered into them. Such covenants are 
Baid to run with the land. 

§ 1461. The only covenants which run with the Iwid ari 
those specified in this title, and those which are incidenta 
thereto. 

{ 1462. Every covenant contained in a grant of an estat« 
15 



|§ 1463-1467 TRANSFER OF OBLIOATIOK8. S21 

fa real property, which is made for the direct benefit of the 
property, or some part of it then in existence, rans with the 

§ 1463. The last section includes covenants "of wav 
ranty," " for quiet enjoyment," or for further assurance on 
the part of a grantor, and covenants for the payment of rent, 
or of taxes or assessments upon the land, on the part of a 
g^rantee. 

§ 1464. A covenant for the addition of some new thin^ to 
teal pnjperty, or for the direct benefit of some pait of the 
property not then in existence or annexed thereto, when con- 
tained in a grant«of an estate in such pro])erty, and made by 
the covenantor expressly for his assigns or to the assigns of 
th« covenantee, runs with land so far only as the assigns thus* 
mentioned are concerned. 

§ 1466. A covenant running with the land binds those 
only who acquire the whole estate of the covenantor in some 
part of the property. 

§ 1466. No one, merely by reason of having acquired an 
estate subject to a covenant running with the land, is liable 
for a breach of the covenant before he acquired the estate, or 
after he has parted with it or ceased to enjoy its benefits. 

§ 1467. Where several persons, holding by several titles, 
are subject to the burden or entitled to the benefit of a cove- 
nant running with the land, it must be apportioned among 
them according to the value of the property subject to it held 
by them i-espectively, if such value can be ascertained, and ii 
not, then according to their respective interests in point ol 
qnantity. 



,y Google 



Itt XXTINOTION or OBLIGATIONS. §§ 147&-1476 

TITLE IV. 
EXTINCTION OF OBLIGATIONS. 

Chapteb I. Performance, §§ 1473-1479. 

II. Offer of Performance, §§ 1486-1505. 
III. Preyeittion of Pbrfobmancs OB Offeb, §§ 15U* 

1515. 
lY. Accord and Satisfaction, §{ 1521-1534. 
V. Novation, §§ 1530-1633. 
VI. BsLEASE, ^ 1541-1543. 



CHAPTER L 
PBBFOBMANOB. 

1478. Obligation extinguished by perfomunoe. 

1474. Performance by one of seTeral Joint debftora. 

1475. Performance to one of joint erediton. 

1476. Bfifeet of directions by erediton. 

1477. Partial performance. 

1478. Payment, what. 

1479. Application of general perfonnanoe. 

§ 1473. Full perfbrmance of an obligation, by the part^ 
whofte duty it is to perform it, or by any other person on hii 
behalf, and with his assent, if accepted by the creditor, eztin* 
gnishes it. 

§ 1474. Performance of an obli^tion, by one of several 
persons who are jointly liable under it, extinguishes the li»* 
bility of all. 

§ 1476. An obligation in favor of several persons is ex* 
tinguished by performance rendered to anj or them, except 
in the case of a deposit made by owners m common, or m 
joint ownership, which is regulated by the Title on Deposit. 

§ 1476. If a creditor, or any one of two or more joint 
crwlitors, at any time dirwts the debtor to pjerforra his obli^ 
Hon in a particular mauner, the obligation is extinguished bj 



ii 1477-1479 BZTiNCTioir of obligations. 224 

performance in that manner, even though the creditor doef 
not receive the benefit of such performance. 

§ 1477. A partial performance of an indivisible ohiiiration 
extinj^uishe* a corresponding proportion thereof, if the benefit 
of such performance is voluntarily retained by the creditor, 
but not otherwise. If such partial performance is of such a 
nature that the creditor cannot avoid retaining it without in- 
laring his own property, his retention thereof is not pre^iumed 
to be voluntary. 

§ 1478. Performance of an obligation for the delivery of 
money only is called payment. 

§ 1479. 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 obli- 
gations, 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 ex- 
tinction of any particular obligation, be manifested to the 
creditor, it must be so applied ; 

2. If no such application be then made, the creditor, within 
a reasonable time after such performance, may apply it to- 
ward the extinction of any obligation, performance of which 
was due to him from the debtor at the time of such perform- 
ance ; except that if similar obligations were due to him, both 
individually and as a trustee, he must, unless otherwise di- 
rected by tne 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 ex* 
tinction of obligations in the following o«der ; and, if then: he 
more than one obligation of a particular class, to the extino* 
tion 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 nft 
i«».*taking ; 

(5.) Of an obligation secured by alien » collateral 
laking. [In effect July 1, 18 74. J 

Digitized by VjOOQIC 



185 BXTINCTION OF OBLIOATION8. §§ 1486-1480 

CHAPTER IL 
OFFEB OF PEBFOBMANOB. 

Bionov 1485. Obligation extinguished by offer of perfomumM. 

1486. Offer of partial performance. 

1487. By whom to be made. 

1488. To whom to be made. 

1489. Where offer may be made. 

1490. When offer must be made. 

1491. Same. 

1492. Compensation. after delay in performance. 

1493. Offer to be made in good faith. 

1494. Conditional offer. 

1495. Ability and willingness essential. 

1496. Production of thing to be delirered not neoegsftrj. 
1497.^ Thing offered to be kept separate. 

1498. Performance of condition precedent. 

1499. Written receipts. 

1500. Extinction of pecuniary obligatioii. 

1501. Objections to mode of offer. 

1502. Title to thing offered. 
1603. Custody of thing offered. 

1504. Effect of offer on accessories of obligation. 

1505. Creditor's retention of thing which he refuses to accept. 

§ 1486. An obligation is extinguished by an offer of per> 
fomiance, made in conformity to the rules herein prescribed, 
and with intent to extinguish the obligation. 

§ I486. An offer of partial performance is of no effect. 

§ 1487. An offer of performance mnst be made by th« 
debtor, or by some person on his behalf and with his assent. 

§ 1 488. An offer of performance must be made to the 
X reditor, or to any one of two or more joint creditors, or to n 
person authorized by one or more of them to receive or colloct 
what is uue under the obligation, if snch creditor or author- 
ized pci-son is present at the place where the offer may be made ; 
end, if not, wherever the creditor may be found, [lu effect 
^uly 1, 1874.] 

§ 1489. In the absence of an express provision to the cod 
irary, an offer of performance may oe made, at the option of 
the debtor : ^ , 

I. At any place appointed by the creditor jyWpogle 



S§ 1490-1497 EXTINCTION or obligations. 226 

2. Wherever the person to whom the offer oaght to he made 
can he found; or, 

3. If such person cannot, with reasonahle diligence, he 
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 |he State ; or, 

4. If this cannot be done, then at any place within thii 
State. 

§ 1490. Where an obligation fixes a time for its perform- 
ance, an offer of performance must be made at that time, 
within reasonable nours, and not before nor afterwards. 

§ 1491. Where an obligation does not fix the time for its 
performance, an offer of performance may be made at any 
time before the debtor, upon a reasonable demand, lias refused 
to perform. 

§ 1492. Where delay in performance is capable of exact 
and entire compensation, and time has not b«en expressly de- 
clared to be of the essence of the obligation, an offer of perform- 
ance, 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 person, in tfate 
mean time. 

§ 1493. An offer of performance must be made in good 
faith, and in such manner as is most likely, under the cir- 
cumstances, to benefit the creditor. 

§ 1494. An offer of performance must be free from any 
eoTiditious which the creditor is not bound, on his part, to 
perform. 

§ 1495. An offer of performance is of no effect if the per 
*on making it is not able and willing to perform according to 
the uffer. 

§ 1496. The rhinir to be delivered, if any, need not in anj 
tase !« actual ly produced, upon an offer of performance 
%nie8s tlie otfer is accepted. 

§ 1497. A thing, when offered by way of performanoe 



127 KXTINCTION OF OBLIGATIOITS. §§ 1408-1604 

must not be mixed with other things from which it cannot be 
Beparated immediately and without difficulty. 

§ 1498. When a debtor is entitled to the performance of a 
condition precedent to, or concurrent with, performance on 
his part, he may make his offer to depend upon the due per- 
formance of sucn condition. 

4dCai 25. 

S 1499. A debtor has a right to require from his creditcMr 
a written receipt for any property delivered in performance ol 
his obligation. 

4) Jal.25. 

§ 1500. An obligation for the payment of money is ex- 
tinguished by a due offer of pav-ment, 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 notice there- 
of is given to the creditor. 

I 1501. All objections to the mode of an offer of perform 
ance, which the creditor has an opportunity to state at the 
time to the person making the offer, and which could be then 
obviated by him, are waived by the creditor, if not then 
stated. 

§ 1502. 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. 

§ 1603. The person offering a thing, other than money, 
by way of performance, must, if he means to treat it as belong- 
ing to the creditor, retain it as a depositary for hire, until the 
creditor accepts it, or until he has given reasonable notice to 
the creditor that he will retain it no longer, and, if with rea- 
Borable diligence he can find a suitable depositary therefor^ 
until he has deposited it with such person. 

§ 1604. An offer of payment or other performance, duly 
nade, though the title to the thing offered be not transferred 
to the creditor, stops the running of interest on the obligation 
And has the same effect upon all its incidents as a perfono 
ince thereof. 

Digitized by VjOOQIC 



|§ 1506-1614 EXTINCTION OF OBLIGATIONS. 226 

§ 1606. If anything is given to a creditor by way of per- 
formance, which he refuses to accept as such, he is not boQnd 
to return it without demand ; but if he retains it, he is a gre- 
tuitouB depositary thereof. 

Costa when tender is made before suit brought. Code CIt. Proe. 1080 



CHAPTER III. 
PREVENTION OP PERFORMANCE OR OFFRB. 

Bmonov 1511. What excuses performance, &c. 

1512. Effect of prevention of performanoe. 

1513. Same. (Repealed.) 

1514. Same. 

1515. Effect of lef usal to accept performanoe before offer. 

§ 1611. The want of performance of an obligation, or of 
an offer of performance, in whole or in part, or any dehiy 
therein, is excused by the following causes,. to the extent to 
which they operate : 

1. When such performance or offer is prevented or delayed 
by the act of the creditor, or by the operation of law, even 
though there may have been a stipulation that this shall not 
be an excuse ; 

2. When it is prevented or delayed by an irresistible, super- 
human cause, or by the act of public enemies of this State or 
of the United States, unless the parties have expressly agreed 
to the contrary ; or, 

3. When the debtor is induced not to make it, by any act 
of the creditor intended or naturally tending to have that 
effect, done at or before the time at which such performanc*e 
». r offer may be made, and not rescinded before that time 

§ 1612. If the performance of an obli<ration 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 par 
ties. [In effect July 1, 1874.] 

§ 1513 of said Code is repealed. [In effect July 1, 1874.] 

&1614. If performance of an obligation is prevented b} 
•ny cause excusing performance, other than the act of tht 
«e(Utor, the debtor is entitled to a ratable proportion of fclM 



B29 EXTINCTION OF OBLIGATIONS. §§ 1616-1524 

considecation to which he would have been entitled npon fhll 
performance, according to the benefit which the creditor re* 
eeives from the actual performance. 

§ 1516. A refusal by a creditor to accept perfcrmance, 
made before an offer thereof, is equivalent to an offer and re 
fiisal, unless, before performance is actually due, he giret no- 
tice to the debtor of his willingness to accept it. 



CHAPTER IV. 
AOCOBD AND SATISFACTION. 

8iOTi<»rl521. Aeeoid, what. 

1622. Effect of accord. 

1528. SatUfaction, what. 

1524. Accord of liquidated debt. 

f 1521. An accord is an agreement to accept, in extinc- 
tion of an obligation, something different from or less than 
that to which the person agreeing to accept is entitled. [In 
effect July 1, 1874.J 

§ 1522. Though the parties to an accord are bonnd to 
execute it, yet it does not extingnish the obligation until it 
is fully executed. 

66 Cal. 496. 

§ 1523. Acceptance, by the creditor, of the consideration 
of an accurd extinguishes the obligation, and is called satis- 
Gficiion. 
66 Cal. 4d&. 

§ 1524. Part performance of an obligation, either bef >r6 
or after a breach thereof, when expressly accepted by the 
creditor in writino:, in satisfaction, or rendered in pursuance 
•jf an agreement in writing, for that purpose, thorjgh wifiout 
any new consideration^ extinguishes the obligation. [La eiTacI 
July I. 1874.] 

66 Cal. 4^ 



,y Google 



K 1630-1633 EXTINCTION OF OBLIGATIONS. SSO 

CHAPTER V. 
NOVATION. 

8BOnoNl630. Noration, what. 

1631. Modes of noTatlon. 

1532. NoTation a contract. 

1533. Bescisflion oi noTation. 

§ 1 630. Novation is the substitution of a new obligation 
for an existing one. 
49 Gal. 50. 

§ 1631. Novation is made : 

1. By the substitution of a new obligation between the tamo 
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. 

§ 1632. Novation is made by contract, and is subject to 
all the rules concerning contracts in general. 

54 Cal. 888. 

§ 1633. When the obligation of a third person, or an or- 
der upon such person, is accepted in satisfaction, the creditor 
may rescind such acceptance if the debtor prevents such per- 
son from complying with the order, or from fulfiliing the obli- 
gation ; or if, at the time the obligation or order is received, 
such person is insolvent, and this fact is unknown to the cred 
itor ; or if, before the creditor can with reasonable diligence 
present the order to the person upon whom it is given, he b^* 
I insolvent. [In effect Jul^ 1 1874.' 



,y Google 



181 BXTINOTIOK OF OBLIGATIONS. §t 1641-1548 

CHAPTER VL 
BBLBASB. 

SionOH 1641. Oblation eztingaished by release. 

1542. Certain claims wot affected by general releaM. 

1543. Selease of seTeral Joint debtor «. 

§ 1641. An obligation is extinguished by a release there- 
from given to the debtor by the creditor, upon a new consid- 
eration, or in writing, with or without new consideratioii. 

57 Cal. 48. 

§ 1542. A general release does not extend to claims 
which the creditor does not know or suspect to exist in his 
fa^'or at the time of executing the release, which if known by 
him must have rai^terially aifected his settlement with the 
debtor. [In effect July 1, 1874.] 

§ 1643. 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 
BantribatioB from him. 



,y Google 



PART II. 



CONTRACTS. 

TlTMM I. Nature op ▲ Contract, §§ 1549-1615. 

11. Manner of creating Contracts, §§ 1619-16Sf 
IIL Interpretation op Contracts, §§ 1635-1661. 
IV. Unlawful Contracts, §§ 1667-1676. 
y. Extinction of Contracts, §§ 1 682-1 70L 



TITLE I. 
NATURE OF A CONTRACT. 

Cbaftbr I. Definition, §§ 1549-1550. 
II. Parties, §§ 1556-1559. 

III. Consent, §§ 1565-1589. 

IV. Object, §§ 1595-1599. 

V. Consideration, §§ 1605-1615. 

CHAPTER L 

DEFINITION. 

SiOTiOR 1549. Contxaot, what. 

1660. Essential elementB of eontxaet. 

( 1549. A contract is an agreement to do or not to do 
% certain thing. 

§ 1550. It is essential to the existence of a contract thai 
there should be : 

1. Parties capable of contracting; 

2. Their consent ; 

8. A lawful object ; and, 

4. A sufficient caoae or con«ideratioifeg,,ed by Google 



183 ITATUKB OF A CONTRACT. §§ 1666-1669 

CHAPTER II. 

PARTIES. 

llOTiON 1556. Who may oontiact. 
1657. Minors, &«. 

1558. Identification of parties necesn&ry. 

1559. When contract for benefit of third person maybe enfaread. 

§ 1666. All persons are capable of contracting, except 
minors, persons of unsound mind, and persons deprived ol 
dvil rights. 

§ 1667. Minors and persons of nnsoand mind have only 
voch capacity as is defined by Part I. of Division I. of thifl 
Code. 

§ 1668. It is essential to the validity of a contract, not 
only that the parties should exist, but that it should be possi- 
ble to identify them. 

§ 1669. A contract, made expressly for the benefit of a 
third person may be enforced by him at any time before th« 
parties thereto rescind it. 



CHAPTER IIL 
CONSENT. 

laonOR 1565. Essentials of consent. 

1566. Consent, when voidable. 

1567. Apparent consent, when not free. 

1568. When deemed to have been obtained by fraud Aii 
1568. Duress, what. 

1570. Menace, what. 

1571. Fraud, actual or constructive. 

1572. Actual fraud, what. 

1573. ConstructiTe fraud. 

1574. Actual fraud a question of fact 

1575. Undue influence, what. 
1676. Mistake, what. 

1577. Mistake of fact. 

1578. Mistake of law. 

1679. Mistake of foreign lawv. 

1680. Mutuality of consent. ^ . 

lin. Gommunioation of COBMMlL Digitized,byL:iOOglC 



{§ 1565-1570 NATURE OF ▲ CONTRACT. S34 

Brcnov 1582. Mode of communieatliig acceptance of proponL 
\ 1588. When communication deemed complete. 

1584. Acceptance by performance of conditionB. 

1585. Acceptance must be absolute. 

1586. Revocation of proposal. 
1587- Revocation, how made. 

1588. Ratification of contract, void for want of consent. 

1589. Assumption of obligation by acceptance of benefits. 

§ 1565. The consent of the parties to a contract rnoBt be 

1. Free; 

2. Mutual ; and, 

8. Communicated by each to the other. 

§ 1566. A consent which is not free is nevertheless not 
absolutely void, but may be rescinded by the parties, in the 
manner prescribed by the Chapter on Rcscis^iion. 

§ 1567. An apparent consent is not real or &ee when ob- 
tained thiough : 

1. Duress; 

2. Menace; 

3. Fraud; 

4. Undue influence ; or, 

5. Mistake. 

■ § 1568. Consent is deemed to have been obtained throa^h 
one of the causes mentioned in the last section only when it 
would, not have been given had such cause not existed. 

§ 1569. Duress consists in : 

1. Unlawful confinement of the person of the party, or o^ 
the husband or wife of such party, or of an ancestor, descend 
Mit, 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 fraudn- 
lently obtained, or fraudulently made unjustly harassing ox 
oppressive. 

§ 1570, Menace consists in a threat : 

1. Of such duress as is specified in subdivisions 1 and S o 
the last section ; 

2. Of unla^^ ful and violent injury to the person or proper^ 
•f any such person as is specified in the last section ; or, 

1. Of injury to the character of any such person.^ 



t35 HATVltB or A COITT&AOT. §§ 1671-1677 

§ 1671. Fraud is either actual or oonstnictiTe. 

§ 1672. Actual fraud, within the meaning of this chapter 
eonsists in any of the following acts, committed by a party t4l 
the contract, or with his connivance, with intent to deceive 
another party thereto, or to induce him to enter into the con* 
Iract : 

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, 

6. Any other act fitted to deceive. 
Fraudulent conreyance a misdemeauor. Penal Code, | 681. 
66 Cal. 866. 
§ 1673. Constructive fraud consists ; 

1. In any breach of daty which, without an actually fraud- 
ulent intent, gans an advantage to the person in fault, or any 
one claiming under him, by misleading another to his preju- 
dice, or to the prejudice of any one claiming under him ; or, 

2. In any such act or omission as the law specially declares 
to be fraudulent, without respect to actual fraud. 

66 Cal. 366. 
§ 1674. Actual fraud is always a question of fact. 

§ 1676. Undue influence consists : 

1. In the use, by one in whom a confidence is reposed, by 
■ikDOther, or who holds a real or apparent authority over him, 
t f such confidence or authority for the purpose of obtaining 
an unfair advantage over him ; 

2. In taking an unfair advantage of another's weakness of 
mind ; or, 

3. In taking a grossly oppressive and unfair advantage of 
another's necessities or distress. 

66 Cal. 89. 

§ 1676. Mistake may be either of fact or law. 

§ 1677. Mistake of fact is a mistake, not caused by the 
aeglect of a legal duty on the part of the person making the 
ristake, and consiatting in : Digitized by Google 



jl 



H 1678*1585 KATUBB or a costtraot. S36 

1. Ad unconscious ig;norance or forgetfttlness of a &ct part 
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 snch 
a thing, which has not existed. 

§ 1578. Mistake of law constitutes a mistake, within the 
meaning of this article, only when it arises from : 

1. A misapprehension of the law b^ all parties, all snppos- 
ing that they knew and understood it, and all making sub- 
itantially 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 rectify. 

§ 1579* Mistake of foreign laws is a mistake of &cL 

§ 1580. Consent is not mutaal, unless the parties all agree 
upon the same thing in the same sense. But in certain cases 
defined by the Cl^pter on Interpretation, they are to be 
deemed so to agree without regard to the fact. 

§ 1581. Consent can be communicated with effect only 
by some act or omission of the paity contracting, by which he 
intends to communicate it, or which necessaiily tends to such 
conmiunication. 

§ 1582. If a proposal prescribes any conditions concerning 
the communication of its acceptance, the proposer is not bound 
unless they are conformed to ; but in otner cases any reason- 
able and usual mode may be adopted. 

§ 1583. Consent is deemed to be fully communicated be- 
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. 

§ 1584. Performance of the conditions of a proposal, or 
the acceptance of the consideration offered with a proposal, is 
(n acceptance of the proposal. 

§ 1585. An acceptance must be absolute and unqualified 
»r must include in itself an acceptance of that charactel 
wiich the proposer can separate from the rest, and which wiB 



137 HATURS or ▲ CONTEAOT. §§ 1686-1696 

conclade the pexson aooe^dng. A qualified acceptance la • 
new proposal. 

§ 1586. A proposal may be revoked at any time before 
its acceptance is commimicated to the proposer, but not after- 
wards. 

§ 1587. A proposal is revoked : 

1. By the communication of notice of revocation by the pro- 
poser to the other party, in the manner prescribed by sections 
*58l and 1583, beiore his acceptance has been communicated 
to the former ; 

2. By the lapse of the time prescribed in such proposal fox 
Hs acceptance, or if no time is so prescribed, the lapse of 
» reasonable time without communication of the acceptance. 

3. By the failure of the acceptor to fulfil a condition pre- 
cedent to acceptance ,* or, 

4. By the death or insanity of the proposer. 

§ 1588. A contract which is voidable solely for want of 
Jue consent may be ratified by a subsequent consent. 

V § 1589. A voluntary acceptance of the benefit of a trans- 
action is equivalent to a consent to all the obligations arising 
from it, so nur as the facts are known, or ought to be known, 
to the person accepting. 



CHAPTER IV. 
OBJECT OP A OONTEAOT. 

BaonoH 1685. Objeet. what. 

1596. Reqaisites of object. 

1597. ImpoBsibUity, what. 

1598. When contract wholly void. 

1599. When contract partiaUy void. 

f 1696. The object of a contract is the thing which it if 
igreed, on the part of the party receiving the consideration, to 
do or not to do. 

§ 1696. The object of a contract must be lawful when th« 
eontraf^ is made, and possible and ascertainable by the tima 
|he contract is to be peitormed* n i 

ji ijigitizedbyV^OOQlC 



/ 



|§ 1597-1607 NATUAB OF A CONTBACT. 288 

§ 1697. Everythiog is deemed possible except that wbick 
!■ impossible in the nature of things. 

§ 1598. Where a contract has but a single object, ana 
inch object is unlawful, whether in whole or in part, or whollj 
impossible of performance, or so vaguely expressed as to m 
whollj unascertainable, the entire contract is void. 

§ 1599. Where a contract has several distinct objects, d 
which one at least is lawful, and one at least is unlawful, in 
whole or in part, the contract is void as to the latter and valid 
AS to the rest. 



CHAPTER V. 
CONSIDERATION. 

BlcnOHl606. Good considezatlon, what. 

1006. How far l^al or moial obligation if a good c 

1607. Consideration lawful. 

1608. Effect of Ulegality. 

1609. Consideration executed or executory. 

1610. Executory consideration. 

1611. How ascertained. 

1612. Effect of impossibility of ascertaining consldeiaHoii. 

1613. Same. 

1614. Written instrument presumptive evidence of consideratioB 
1616. Burden of proof to invalidate sufficient consideration. 

§ 1605. An^ benefit conferred, or agreed to be conferred, 
upon the promisor, by any other person, to which the prom- 
Isc^r is not lawfully entitled, or any prejudice suffered, or 
agreed to be suffered, by such person, other than such as he is 
ft the time of consent lawfully bound to suffer, as an induce- 
ment to the promisor, is a good consideration for a promise. 

§ 1606. An existing legal obligation resting upon the 
promisor, or a moral obligation originating in some tienefit 
conferred upon the promisor, or prejudice suffered by the 
promisee, is also a good consideration for a promise, to an ex- 
tent corresponding with the extent of the obligation, but nc 
further or otherwise. 

5 1607. The consideration of a contract must be lawfii 
within the meaning of section 1 667. ,,,,,,,,, ,, Google 



189 KATUBE or A COKTRACT. §§ 1608-1616 

§ 1608. If any part of a single consideration fbr one or 
Kiore objects, or of several considerations for a single object, 
k unlawful, the entire contract is roid. 

§ 1609. 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 IV. of this title. 

§ 1610. When a consideration is executory, it is not in- 
dispensable that the contract should specify its amount or the 
means of ascertaining it. It may be left to the decision of a 
third person, or regulated by any specified standard. 

§ 161 1* When a contract does not determine the amount 
of the consideration, nor the method by which it is to be as 
eertaiued, or when it leaves the amount thereof to the discre- 
tion of an interested party, the consideration must be so much 
money as the object of the contract is reasonably worth. 

§ 1612. Where a contract provides an exclusive method 
by which it-s consideration is to be ascertained, which method 
is on its face impossible of execution, the entire contract is 
void. 

§ 1613. Where a contract provides an exclusiye method 
by which its consideration is to be ascertained, which method 
appears possible on its face, but in fact is, oi becomes impossi- 
ble of execution, such provision only i^ void. 

oe §1614. A written instrument is presumptive evidence of 

*^^ A consideration. 

161& § 1615. The burden of showing a want of consideration 

\'2Abi9 nifficient to support an instminent lies witA the party seeking 
to inralidate ?r avoid it. 



,y Google 



if 1619-1624 uxwssR or obsatinq GOirT&i.CTfi. 240 

TITLE n. 
MANNER OF CREATING CONTRACTS- 

twmoM 1819. Contracts, «zprefls or Implied. 

1620. BxproM contract, what. 

1621. Implied contract, what. 

1622. Wlukt contracts may be oral. 

1628. Contract not in writing through ftand, may b« en i o w it 
against fraaduieat party. 

1624. What contracts must be written. 

1625. Effect of writing. 

1626. Contract in writing, takes effect when. 

1627. ProTisions of chapter on transfers of real propoiy. 

1628. Corporate seal, how affixed. 

1629. FzoTisions abolishing seals made applicable. 

I 1619. A contract is either express or implied. 

§ 1620. An express contract is one, the terms of which 
are stated in words. 

§ 1621. An implied contract is one, the existence and 
terms of which are manifested by conduct. 

§ 1622. All contracts may be oral, except such as ar« 
specially required by statute to be in writing. 

f 1628. Where a contract, which is reqjuired hy law to be 
In writing, is prevented from being put into writing by the 
fraud of a party thereto, any other party who is by such fraud 
led to believe that it is in writing, and acts upon such belief 
to his prejudice, may enforce it a^nst the fraudulent party. 

Code CiT. Proe. §§ 1971-1974. 

§ 1624. The following contracts are invalid, unless thf 
same, or some note or memorandum thereof, be in writing 
and subscribed 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 mi» 
nirriage of another, except in the cases provided for in sec« 
•ion twenty-seven hundred and ninety-four of this Code; 

8. An agreement made upon consideration of mArrlagf 
•ther than a mutual promise to marry; 

ugitized by Google 



Ml MAHICBS or CBKATING CONTEA0T8. §§ 1626-1629 

4. An agreement for the sale of goods, chattels, or things 
hi action, at a price not less than two hundred dollars, nnlest 
the buyer accept or receive part of such goods and chattels, 
or the evidences, or some of them, of such things in action, or 
pay at the time some part of the purchase-money ; but when 
a sale is made at auction, an entry by the auctioneer in his 
sale book, at the time of the sale, of the kind of property 
sold, the terms of the sale, the price, and the names of the pur- 
chaser and person on whose account the sale is made, is a suf- 
ficient memoriiTidum ; 

5. An agreement for the leasing for a longer period than 
one ^ear, or for the sale of real property, or of an interest 
therein; and such agreement, if made by an agent of the 
party sought to be charged, is invalid, unless the authority of 
the agent be in wriiing, 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. [In effect May 8, 1878.] 

Code Oiv. Proc. H 19n-1974. 

§ 1625. The execution of a contract in writing, whether 
the law requires it to be written or not, supersedes all the oral 
negotiations or stipulations concerning its matter which pre- 
ceded or accompanied the execution of the instrument. 

Code Civ. Proo. §§ 1971-1974. 

§ 1626. A contract in writing takes effect upon its deliv- 
eiy to the party in whose &vor it is made, or to his agent. 

§ 1627. The provisions of the Chapter on Transfers in 
General, concerning the delivery of grants, absolute and con- 
ditional, <^PP^y ^o ^ written contracts. 

§ 1628. A corporate or official seal may be affixed to an 
instrument by a mere impression upon the paper or other ma^ 
feerial on which such instrument is written. 

§ 1629. All distinctions between sealed and unsealed i» 
Itnunents are abolished. 



,y Google 



H 1685-1638 INTSRFBKTATION OV CONTRAGTf. MS 

TITLE III. 
INTERPRETATION OF CONTRACTa 

BwnoH 1685. Uniformity of iiit«rpretatioii. 

16S6. Contracts, how to be interpreted. 

1637. Intention of parties, how ascertained. 

1638. Intention to be ascertained from languaga. 
1689. Interpretation of written contracts. 

1640. Writing, when disregarded. 

1641. Effect to be giren to eyeiy part of contract 

1642. Several contracts, when taken together 

1643. Interpretation In favor of contract. 

1644. Words to be understood in usual sense. 
1646. 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 ynm 

isee 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 asainst 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. 

1661. Sxecuted and executory contracts, what. 

I 1685. All contracts, whether pnhlic or private, are to b« 
Interpreted bj the same rules, except as otherwise provided by 
this Code. 

§ 1636. A contract must be so interpreted as to give effect 
to the mutual intention of the parties as it existed at the tine 
of contracting, so far as the same is ascertamable and lawiid. 

57 Cal. 479. 

§ 1637. For the purpose of ascertaining the intention of 
the i>arties to a contract, if otherwise doubtful, the rules givef 
in this chapter are to be applied. 

§ 1638. The language of a contract is to gorem its inter 
pretaiion, if the hwgnage is clear and explicit, and does not 
tivolve an absurdity. Google 



>/, 



4 



143 INTBBPBBTATION OV COKTSACTS. {§ 1689-1648 

§ 1689. When a contract is rednced to writing^, the inten- 
tion of the parties is to be ascertained from the writing alone, 
If possible ; subject, however, to the other provisions of this 
litle. 

§ 1640. When, through fraud, mistake, or accident, a 
written contract fails to express the real intention of the par- 
lies, such intention is to be regarded, and the erroneous parts 
of the writing disregarded. 

§ 1641. The whole of a contract is to be taken together, 
BO as to give effect to every part, if reasonably practicable, 
each clause helping to interpret the other. 

§ 1642. Several contracts relating to the same matters, 
between the same parties, and made as parts of substantially 
one transaction, are to be taken together. 

f § 1648. A contract must receive such an interpretation as ' 
^ will make it lawful, operative, definite, reasonable, and capa- 
ble of being carried into effect, if it can be done without vio- 
lating the intention of the parties. 

§ 1644. The words of a contract are to be understood in 
their ordinary and popular sense, rather than according to 
their strict legal meaning ; unless used by the parties m a 
technical sense, or unless a special meaning is given to them 
by usage, in which case the latter must l)e followed. 

67 Cal. 479. 

§ 1645. Technical words are to be interpreted as usually 
understood by persons in the profession or business to which 
they relate, unless clearly used in a different sense. 

67 Cal. 479. 

§ 1646. A contract is to be interpreted according to the 
law and usage of the place where it is to be performed ; or, il 
it does not indicate a place of performance, according to the 
law and usage of the place where it is made. 

57 Cal. 479. 

§ 1647. A contract may be explained by reference to the 
tircumiitances under which it was made, and the matter t« 
irhich it relates. 

§ 1648. However broad may be the («rms of a contract, it 
vxtends onlv to those things concerning which it appears that 
the parties mtended to contract. 



\ 



|§ 1649-1656 IITTIBRPBETATION OF GONTBAOI8. 244 

§ 1649. If the terms of a promise aro in any respect am* 
biguous or uncertain, it must be interpreted in the sense in 
which the promisor believed, at the time of making it, that th« 
promisee uuderstood it. 

Code Civil Proc. § 1864. 

§ 1650. Particular clauses of a contract are subordinate 
to its general intent. 

64 Cal. 370. 

§ 1651. Where a contract is partly •^Titten 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 orig- 
mally prepared without special reference to the particular par- 
ties and the particular contract in question, the written parts 
control the printed parts, and the parts which are purely orig- 
inal control those which are copied from a form. And if the 
two are absolutely repugnant, the latter must be so far disre- 
garded. 

§ 1652. Repugnancy in a contract must be reconciled, if 
possible, by sucn an interpretation as will give some effect to 
the repugnant clauses, subordinate to the general intent and 
purpose of the whole contract. 

§ 1653. Words in a contract which are wholly inconsistent 
with its nature, or with the main intention of tlie parties, ar6 
to be rejected. 

§ 1654. In cases of uncertainty not removed by the pre- 
ceding rules, the langunge of a contract should be interpreted 
most strongly against the party who caused the nncertamty to 
exist. The promisor is presumed to be such party ; except in 
a contract between a public officer or body, as such, and a 
private party, in which it is presumed that all uncertainty was 
tau:ied by the private party. 

§ 1655. Stipulations which are necessary to make aeon- 
tract rea^onable, or conformable to usage, are implied, in re- 
spectt to matters concerning which the contract manifests n« 
contrary intention. 

§ 1656. All things that in law or usage are considered af 
Ucideniai to a contract, or as necessary to carry it into effect 



145 VKLAWVUL COXTBA0T8. §§ 1667'1667 

fire implied therefrom, milem tome of them are ezpresalT' 
mentioned therein, when all other things of the same claM are 
deemed to he excluded. 

§ 1657. If no time is specified for the performance of an 
act required to he performed, a reasonable time is allowed. If 
the act is in its nature capable of being done instantly, — as, 
for example, if it consists m the payment of money oiuy, — it 
must be performed immediately upon the thing to be done be- 
ing exactly ascertained. 

§ 1658 of said Code is repealed. [In effect July 1, 1874.] 

§ 1659. Where all the parties who unite in a promise re- 
ceive some benefit from the consideration, whether past or 
present, their promise is presumed to be joint and several. 

§ 1660. A promise, made in the singular number, but 
executed by several persons, is presumed to be joint and sev* 
eral. 

§ 1661. An executed contract is one, the object of whtek 
h fully performed. All others are executory. 



TITLE IV. 
UNLAWFUL CONTRACTS. 

1667. What Is unlawful. 

16^. Certain contracts unlawful. 

1669. Penalties void. (Bepealed.) 

1670. Contract .fixing damages, void 

1671. Exception. • 

1672. Restraints upon legal proceedings. (Repealed.) 
x&iB, Contract in restraint of trade, Toid. 

1674. Exception fn faror of sale of good will. 

1675. Exception in favor of partnership arrangements* 
1676L Contract in restraint of marriage, roid. 

§ 1667. That is not lawful which is: 
1. Contrary to an express provision of law ; 
9. Contrary to the policy of express law, though not < 
tressly prohibited ; or, n ] 

3. Ouierwise contrary to good morakizedbyCjOOgle 



{§ 1668-1676 UNLAWFUL CONTRACTS. 24€ 

§ 1668* All contracts which have for their object, directly 
or indirectly, to exempt an^r one from responsibility for his 
own fraud, or wilful injury to the person or property of 
another, or violation of law, whether wilful or negligent, are 
against the policy of the law. 

§ 1669 of said Code is repealed. [In effect July 1, 1874.J 

§ 1670. Every contract by which the amount of damage 
to be paid, or other compensation to be made, for a breach of 
an obli«^ation, is determined in anticipation thereof, is to that 
extent void, except as expressly provided in the next section. 

§ 1671 . The parties to a contract may agree therein upon 
an amount which shall be presumed to be the amount of dam- 
age sustained b V a breach thereof, when, from the nature of 
the case, it would be impracticable or extremely difficult to fix 
the actaal damage. 

§ 1672 of said Code is repealed. [In effect July 1, 1874.] 

1673 § 1673. Every contract by which any one is restrained 
^^®g^Vom exercising a' lawful profession, trade, or business of any 
^ ^nd, otherwise than is provided by the next two sections, is to 
that extent void. 

§ 1674. One who sells the good will of a business may 

CO ^gJ^ce with the buyer to refrain from carrying on a similar bus- 

124 431 bess within a specified county, city, or a part thereof, so long 

r lis the buyer, or any person deriving title to the good will from 

him, carries on a like business therein. 

§ 1675. Partners may, upon or in anticipation of a disso- 
lution of the partnership, agree that none of them will carry 
on a similar business within the same city or town where tht 
oartnership business has been transacted, or within a specified 
i)art thereof. 

§ 1676. Every contract in restraint of the marriage o 
%ny person, other than a minor, is void. 



,y Google 



•47 XXTIMCTION OF CONTKACT8. §§ 1682-1688 

TITLE V. 
EXTINCTION OF CONTRACTS. 

C&ATTER I. Contracts, how kztinoutsrbd, § 168S. 
II. RESCISSION, §§ 1688-1691. 
III. Alteration and Cancbllatiok, §§ 1697-170L 



CHAPTER I. 

' OONTBAOTS. HOW EXTINGUISHED. 

SxCTiOH 1682. Contract, how extinguished. 

§ 1682. A contract may be extingaished in like manner 
with any other obligation, and also in the manner prescribed 
by this title. 



CHAPTER XL 
RESCISSION. 

BaonoN 1688. Rescission extinguishes contiaot. 
1689. When party may rescind. 

1680. When stipulations against right to refolnd do not defeat it. 
1691. Bescission, how effected. 

§ 1688. A contract is extinguished by its rescission. 

§ 1689. A party to a contract may rescind the same in tb« 
fallowing 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, ex- 
ercised by or with the connivance of the party as to whom he 
rescinds, or of any other party to the contract jointly inter- 
ested with such party ; 

2. If, through the fault of the party as to whom he rescinds 
^Q consideration for his obligation fails, in whole or in part , 

3. If sndi consideration becomeg entirely ^oid from any 

**''** » Digitized by GoOglC 



4 



«a 



H 1690-1698 BXTINOTION OF CONTRACTS. 24S 

4. If sach consideration, before it is rendered to him, faib 
In a material respect, from any cause ; or, 

5. By consent of all the other parties. 
68 Cal. 285. 

§ 1690. A stipulation that errors of description shall not 
Rvoid a contract, or shall be the subject of compensation, or 
both, does not take away the right of rescission for fraud, iK»r 
for mistake, where such mistake is in a matter essential to the 
inducement of the contract, and is not capable of exact and 
entire compensation. 

§ 1691. Rescission, when not effected by consent, can be 
accomplished only by the use, on the part of the party rescind- 
ing, of reasonable diligence to comply with the following 
rules : 

1. He must rescind promptly, upon discovering the facta 
which entitle him to rescind, if he is free from duress, menace, 
undue influence, or disability, and is aware of his right to re- 
scind; and, 

2. He must restore to the other party everything of value 
which he has received from him under the contract ; or must 
offer to restore the same, upon condition that such party shall 

A do likewise, unless the latter is unable or positively refuses to 
do so. 
64Cal.l90; 66 Cal. 459; 68 CaL 285, 864, <K)8. 



CHAPTER m. 
ALTERATION AND OANOEULjATION. 

Sbotzon 1697. Alteration of rerbal oontraet. 

1698. Sealed contncts, bow modified. 

1699. Extinction by cancellation, &e. 

1700. Extinction by unauthoriied alteration. 

1701. Alteration of duplicate, not to prejudice. 

§ 1697. A contract not in writing msLj be altered in anjr 
respect b}r consent of the parties, in writing, without a new 
consideration, and is extinguished thereby to the extent of th« 
new alteration. [In effect July 1, 1874.] 

§ 1698. A contract in writing may be altered by a ooa 
rract in writing, or by an executed oral agreement, and uai 
Itherwise. [In effect July I, 1874.] 

Digitized by VjOOQIC 



t49 BXTIKOTIOir OT COVTRA0T8. §§ 1699-1701 

§ 1699. The destruction or cancellation of a written con- 
tract, or of the sit^natnre of the parties liable thereon, with 
intent to extinguish the obligation thereof, extinguishes it as 
to all the parties consenting to the act. 

§ 1 700. The intentional destruction, cancellation, or mate- 
riaJ alteration of a written contract, by a party entitled to 
any benefit under it, or with his consent, extinguishes all the 
executory obligations of the contract in his favor, against par- 
ties who do not consent to the act. 

§ 1701* Where a contract is executed in duplicate, an al- 
teration or destruction of one copy, while the other exislii ii 
■ot within the prorisions of the last section. 



^ 



,y Google 



PART III 



OBLIGATIONS IMPOSED BY LAW. 

iMnoR 1706. Abstinence from injuxy. 

1709. Fraudulent deceit 

1710. Deceit, what. 

1711. Deceit upon tlie public, Ac 

1712. Refltoration of thing wrongfully acq jired. 

1713. ^Vhen demand necessary. 

1714. Responsibility for wilful acts, negligeikce, &e 
1716. Other obligations 

§ 1708. Evert person is bound, without contract, to aK 
itain from injuring the person or property of another, or in- 
fringing upon any of his rights. 

As to what injuries axe criminal, see Penal Code, $$ 846-949 

§ 1709. One who wilfully deceives another with intent to 
induce him to alter his position to his injury or risk, is liable 
for any damage which he thereby suffers. 

§ 1710. A deceit, within the meaning of the last pection^ 
is either : 

1. The suggestion, as a fact, of that which is not true, by 
one who does not believe it to be true ; 

2. The assertion, as a fact, of that which is not true, by one 
who has no reasonable ground for believing it to be true ; 

3. The suppression of a fact, by one who is bound to dis- 
close it, or who gives information of other facts which are 
likely to mislead for want of communication of that fact ; or, 

4. A promise, made without any intention of performing it. 

§ 1711. One who practises a deceit with intent to defraud 
the public, or a particular class of persons, is deemed to havf 
intended to defraud every individual in that class, who is ad 
ftaily misled by the deceit. 

Digitized by VjOOQIC 



151 OBLIGATIONS IMPOSED BT LAW. §§ 1712-1715 

§ 1712. One who obtains a thing without the consent of its 
owner, or bj a consent afterwards rescinded, or by an unlaw- 
ful exaction which the owner could not at the time prudentlj 
refuse, must restore it to the person from whom it was thus 
obtained, unless he has aC4uired a title thereto superior to that 
of such other person, or unless the transaction was corrupt 
and unlawful on both sides. 

§ 1713. The restoration required by the last section must 
be made without demand, except where a thing is obtained 
by mutual mistake, in which case the party obtaining the 
thing is not bound to return it until he has notice of the mis- 
take. 

§ 1714. Every one is responsible, not only for the result 
of his wilful acts, but also for an injury occasioned to another 
by his want of ordinary care or skill in the 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. 
I'he extent of liability in such cases is defined by the Title on 
Compensatory Relief. 

Penal Code, §§ 846-849. 

§ 1715. Other obligatioos are imscribed hfDbMom I 
«nd II. of this Coda. 



,y Google 



PART lY. 



OBLIGATIONS ARISING FROM PARTICULAB 
TRANSACTIONS, 

TiTLB I. Salb, §§ 1721-1798. 

II. Exchange, §§ 1804-1807. 

III. Deposit, §§ 1813-1878. 

IV. Loan, §§ 1884-1920. 
V. Hiring, §§ 1925-1959. 

VL Sbrvicb, §§ 1965-2079. 
VII. Carriage, §§ 2085-2209. 
VIIL Trust, §§ 2215-2289. 
IX. Agency, §§ 2295-2389. 
X. Partnership, §§ 2395-2520. 
XL Insurance, §§ 2527-2766. 
XII. Indemnity, §§ 2772-2781. 

XIII. Guaranty, §§ 2787-2866. 

XIV. Lien, §§ 2872^080. 

XV. Negotiable Instruments, §§ 3086-3862. 
XVL General Provisions, § 3268. 



TITLE L 
SALE. 

CflAFTER I. General Provisions, §§ 1721-1741. 

II. Rights and Obligations op the Sellbb, §§ 1748 

1778. 
III. Rights and Obligations of the Buyxr, $§ 1784 

1786. 
lY. Salb by Auction, §§ 1792-1798. 



,y Google 



§§ 1721 1727 



CHAPTER I. 
GENERAL PROVISIONS, 

Amcu I. Sau, §$ 172U1722. 

II. AoBXKMSNTS roR Sam, M 1726-1784. 
m. ro&M or THX ConTBAor, {§ 1789-174L 

ARTICLE L 



Sioron1721. Sale, what. 

1722. Subject of sale. 

§ 1721. Salb 18 a contract hj which, for a pecuniary con 
■ideration, called a price, one transfers to another an interesi 
in property. 

§ 1722, The subject of sale must be property, the title to 
which can be immediately transferred rrom the seller to the 
bayer. 

ARTICLE IL 

AGREEMENTS FOB SALB. 

Ilonoirl726. Agreement for sale. 

1727. Agreement to sell. 

1728. Agreement to buy. 

1729. Agreement to sell and buy 

1730. What may be the subject of the eontraot. 

1731. Agreement to sell real property. 

1732. Form of grant required by such contract. (Repealed.) 

1733. Usual common law coyenants required by fuch contraeti, 

when. 
1784. Form of such ooTenants. 

§ 1726. An agreement for sale is either: 

1. An agreement to sell ; 

♦ An agreement to buy ; or, 

h. A mutual agreement to sell and buy. 

§ 1727. An agreement to sell is a contract by which one 
BBgages, for a price, to transfer to another the title to a oer> 
«in thing. ugtizedbyGooQle 

17 ^ 



(1 1728-1784 «Aiji. 254 

§ 1728. An agreement to buy is a contract by which on* 
engages to accept from another, and pay a price for the tide 
(o a certain thing. 

§ 1729. An agreement to sell and buy is a contract by 
which one engages to transfer the- title to a certain thing to 
another, who engages to accept the same from him and to pay 
a price therefor. 

§ 1730. Any property which, if in existence, might be the 
subject of sale, may be the subject of an agreement for sale^ 
whether in existence or not. 

§ 1731. An agreement to sell real property binds the 
feller to execute a conveyance in form suiiicienc to pa;» the 
title to the property. [In effect July 1, 1874.] 

§ 1732 of said Code is repealed. [In effect July 1, 1874.] 

§ 1733. An agreement on the part of a seller of real 
property to give the usual covenants, binds him to insert in 
the grant covenants of "seizin,** "quiet enjoyment," "fur- 
ther assurance," " general warranty," and " against incum- 
brances." 

§ 1734. The covenants mentioned in the last section most 
be in substance as follows: " The party of the first part cov. 
3nants with the party of the second ftart, that the former is 
now seized in fee simple of the property granted ; th/it the 
latter shall enjoy the same without any lawfiil disturbance ; 
that the same is fi-ee from all incumbrances ; that the party 
of the first part, and all persons acquiring any interest in tlie 
same thron;;h or for him, will, on demand, execute and de> 
liver to the party of the second part, at the expense of the 
latter, an^ further assurance of the same that may be reason- 
ably required ; and that the party of the first part will wa^ 
rant to the party of the second part all the said property 
igainst every person lawfully claiming the same." 



,y Google 



iftS BAui. §S 1739-1741 

ARTICLE m. 

70BM OF THB COVTRAOT. 

BionoH 1789 Contract for sale of penonal property. 

1740. Contract to manufactare. 

1741. Contract for sale of real pn/pntj, 

§ 1739. No sale of personal property, or agreement to 
tmy or sell it for a price of two hondred dollara or more, ie 
valid, unless : 

1. The agreement or some note or memorandum thereof bo 
in writing, and subscribed by the party to be charged, or by 
his agent ; or, 

2. The buyer accepts and receiyes part of the thing sold, or 
when it consists of a thing in action, part of the eyidencea 
thereof, or some of them ; or, 

3. The buyer, at the time of sale, pays a part of the price. 
[In effect July 1, 1874.] 

Code CiT. Proo. §§ 1971-1974- 

§ 1740. An agreement to manufacture a thing, from ma- 
terials furnished by the manufacturer, or by another person, ia 
not within the provisions of the last section. 

§ 1741. No agreement for the sale of real property, or of 
an interest therein, is valid, unless the same, or some note or 
memorandum thereof, be in writing, and subscribed by the 
party to be charged, or his agent, thereunto authorized, in 
writmg ; 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. [In effect 
July 1, 1874.] 
Code CiT. Proc. §§ 19T1-1974. 



CHAPTER IL 
BIGHTS AND OBLIGATIONS OF THB SBLLHB. 

AiTicLB I. Rights and Duties befobs Diutkbt, §$ 1748-174ft. 

II. Deuvhry,?§ 17W-IT58. 

Ill WaKRANTY, §§ n**^^** uigitized by Google 



|§ 1748-1756 BALE. ttl 

ARTICLE I. 

XtlOHTS AND DUTIBS BBFOBB DBLIVBBT. 

SlonoN 1748. When seller most act m depositary. 
1749. When seller may resell. 

§ 1748. After personal property has been sold, and nntil 
kbe delivery is completed, the seller has the rights and obliga- 
tions of a depositary for hire, except that he must keep the 
property, without char^, until the buyer has had a reasonable 
opportunity to remove it. 

§ 1749. If a buyer of personal property does not pay for 
it according to contract, and it remains in the possession of 
the seller after payment is due, the seller may rescind the sale 
or may enforce his lien for the piice, in the mauner prescribed 
by the Title on liens. 

68 Cal. 431. 

ARTICLE IL 

DBLITBBT. 

Bioiioir 1758. Delivery on demand. 
1764. Delivery, where made. 
1756. Expense of transportation. 

1756. Notice of e)<»etion aa to delivery. 

1757. Bayer's directions as to manner of sending thing sold. 
1768. Delivery to be within reasonable hours. 

§ 1763. One who sells personal 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 buyer within 
a reasonable time after demand, unless he has a lien thereon. 

§ 1764. Personal property sold is deliverable at the place 
where it is at the time of the sale or agreement to sell, or U 
it is not then in existence, it is deliverable at the place where 
it is produced. 

§ 1766. One who sells personal property must bring it to 
\\a own door, or other convenient place, for its acceptance by 
khe buyer, but further transportation is at the risk and expense 
>f the buyer. 

{ 1766. When either party to a contract of sale has a| 



257 BAM H 1767-1765 

option as to the time, place, or manner of delivery, he moat 
g^ive the other party reasonable notice of his choice ; and if he 
does not eive such notice within a reasonable time, his right 
of option u waived. 

§ 1767. If a seller agrees to send the thing sold to the 
bnyer, he mast follow the directions of the latter as to the man- 
ner of sending, or it will be at his own risk during its trans- 
portation. If he follows such directions, or if, in the absence 
of special directions, he uses ordinaiy care in forwarding the 
thing, it is at the risk of the buyer. 

§ 1768. The delivery of a thing sold can be offered or de^ 
manded only within reasonable hours of the day. 



ARTICLE m. 

WARSAHTT. 

MonoH 1768. Warranty, what. 

1764. No implied warranty in mere eontxaet of sale. 
1766. Warranty of title to personal property. 
1766. Warranty on sale by sample. 
1707. When seller knowa that buyer relies on his 
&e. 

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. 
1778. Other marks. 

1774. Warranty on sale of written {nstmment. 
1776. Warranty of provifiions for domestic use. 

1776. Warranty on sale of good will. 

1777. Warran^ upon judicial sale. 

1778. Effect of general warranty. 

§ 1763. .A warranty is an engagement by which a seller 
assures to a buyer the existence of some fact affecting the 
transaction, whether past, present, or future. 

§ 1 764. Except as prescribed by this article, a mere con- 
h'act of sale or agreement to sell does not imply a warranty. 

§ 1766. One who sells or agrees to sell personal property 
fcs his own, thereby warrants that he has a good and unincun» 
%ered title thereto." 



5§ 1766-1774 salb. 258 

§ 1766. One who sells or agrees to sell goods hj sample, 
thereby warrants the bulk to be equal to the sample. 

§ 1767. One who sells or agrees to sell personal property, 
knowing that the buyer relies upon his advice or judgment, 
thereby warrants to the buyer that neither the seller, nor any 
agent employed by him in the transaction, knows the existence 
of any fact concerning the thing sold which would to his 
knowledge destroy the buyer's inducement to buy. 

§ 1768. One who agrees to sell merchandise not then in 
existence, thereby warrants that it shall be sound and mer- 
chantable at the place of production contemplated by the par- 
ties, and as nearly so, at the place of deliirery, as can be se- 
cured by reasonable care. 

§ 1769. One who sells or agrees to sell an article of his 
own manufacture, thereby warrants it to be free from any 
latent defect, not disclosed to the buyer, arising from the pro- 
cess of manufacture, and also that neither he nor his agent in 
such manufacture has knowingly used improper materials 
therein. 

§ 1770. One who manufactures an article under an order 
for a particular purpose, warrants by the sale that it is reason 
ably fit for that purpose. 

§ 1771. One who sells or agrees to sell merchandise inao- 
cessible to the examination of the buyer, thereby warrant! 
that it is sound and merchantable. 

§1772. One who sells or agrees to sell any article to 
which there is affixed or attached a trade-mark, thereby war- 
runts that mark to be genuine and lawfully used. 

Penal Code, $ 861. 

§ 1773. One who sells or agrees to sell any article to which 
t'>ere is affixed or attached a statement or mark to express the 
quantity or quality thereof, or the place where it was, in whol« 
•jr in part, j)roduced, manufactured, or prepared, thereby war 
'ants the truth thereof. 

Pol Code, § 3199. 
t 

M774. One who sells or agrees to sell an instrument pa* 



259 BALE. §§ 1776-1786 

porting to bind any one to the performance of an act, thereby 
warrants that he has no knowledge of any facts which tend to 
prove it worthless, snch as the insolvency of any of the parties 
thereto, where that is material, the extinction of its obli<?i» 
tions, or its invalidity for any cause. [In effect July 1, 1874.] 

§ 1776. One who makes a business of selling provisions 
for domestic use warrants by a sale thereof, to one who buys 
for actual consumption, that they are sound and wholesome. 

§ 1 776. One who sells the good will of a business^ thereby 
warrants that he will not endeavor to draw off any of the cus- 
tomers. 

§ 1777. Upon a judicial sale, the only warranty implied 
is that the seller does not know that the sale will not pass • 
good title to the property. 

§ 1778. A general warranty does not extend to defects in- 
consistent therewith of which the buyer was then aware, or 
which were then easily discernible by mm without the exercise 
of peculiar skill ; but it extends to all other defects. 



CHAPTER m. 
BIGHTS AND OBIilQATIONS OF THB BUYSB. 

SsonoH 1784. Price, when to be paid. 

1785. Right to inBpect goods. 

1786. Bights in oaae of breach of warrant j. 

$ 1784. A buyer must pay the price of the thing sold on 
its delivery, and must take it away within a reasonable time 
wfter the seller offers to deliver it. 

§ 1786. On an agreement for sale, with warranty, the 
ouyer has a right to inspect the thin^ sold, at a reasonable 
time, before accepting it ; and may rescind the contract if the 
seller refuses to permit him to do so. 

§ 1786. The breach of a warranty entitles the buyer to 
rescind an agreement for sale, but not an executed sale, unless 
Ihe warranty was intended by the parties to operate as a con 
iiftion. 



IS 1792-1798 8AIJI. 



CHAPTEB IV. 

SALE BY AUCTION. 

8MrnoHl792. Sale by auction, what. 
17d8. Sale, when complete. 

1794. Withdrawal of bid. 

1795. Sale under written conditions. 

1796. Rightfl of bujer upon lale without v 

1797. By bidding. 

1798. Auctioneer's memorandfun of sale. 

§ 1792. A sale by aaction is a sale hy public oatcry to tht 
highest bidder on the spot. 

§ 1793. A sale by auction Is complete when the aaction- 
eer publicly announces, by the fall of his hammer, or in any 
other customary manner, that the thing is sold. 

§ 1794. Until the annonncement mentioned in the last 
section has been made, any bidder may withdraw his bid, if he 
does so in a manner reasonably sufficient to bring it to the 
notice of the auctioneer. 

§ 1795. When a sale by auction is made upon written or 
printed conditions, such conditions cannot be modified by any 
oral declaration of the auctioneer, except so far as they are for 
his own benefit. 

§ 1796. If , at a sale by auction, the auctioneer, having 
authority to do so, publicly announces that the sale will be 
without reserve, or makes any announcement equivalent there- 
to, the highest bidder in good faith has an absolute right to 
the completion of the sale to him ; and, upon such a sale, bids 
by the seller, or any agent for him, are void. 

§ 1797. The employment by a seller of any person to hid 
at a sale by auction, without the knowledge of the buyer, with- 
out an intention on the part of such bidder to buy, and on tht 
part of the seller to enforce his bid, is a fraud upon the buyer 
which entitles him to rescind his purchase. 

§ 1798. WTien property is sold by auction, an entry madt 
ly the auctioneer, in his sale-book, at the time of the Mile 
specifying the name of the person for whom he sells^ the 1 



161 BXCHANGS — DEPOSIT. §| 1804-1807 

•old, the price, the terms of sale, and the name of the bcTer, 
binds both the parties in the same manner as if made \y 
Ihemselres. [In effect Julj 1, 1874.] 



TITLE n, 
EXCHANGE. 



1801. Sxchanse, what. 
1806. Form of contract. 

1806. Parties hare right! and obUgatloiu of MllexB and InijMi 

1807. Warranty of monej. 

§ 1804. Exchange is a contract by which the parties mat 
nally give, or a^ree to give, one thing for anotner, neithei 
thing, or both things, being money only. 

§ 1805. The provisions of section 1739 apply to all ex- 
changes in which the value of the thing to be given by either 
party is two hundred dollars or more. 

§ 1806. The provisions of the Title on Sale apply to ex- 
changes. 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. 

§ 1807. On an exchange of money, each party thereby 
warrants the genuineness of the money given by him. 



TITLE HL 
DEPOSIT. 



I. Deposit in General, §$ 1813-1897. 
IL DEPOsrr for Keepino, §§ 1833-lS7Si 
ni. DxFOsrr for Exohanqx, § 1878. jgle 



IS 1813-1818 DEPOSIT. Its 

CHAPTER I. 

D^SPOSIT IN GENERAL. 

AnXOU I. If ATUBX AND CUATION OF DEPOSIT, §f 181S>1818 

II Obuoations op the Deposit abt, §§ 132^1827. 
ARTICLE I. 

NATURB AND CREATION OF DBPOBIT. 

Section 1813. Deposit, kinds of. 

1814. Voluntary deposit, how made. 

1815. Involuntary deposit, how made. 

1816. Same. 

1817. Deposit for keeping, what. 
1818 Deposit for exchange, what 

§ 1813. A deposit may be voluntary or mvolnn:arj ; and 
for safe keeping or for exchange. 

§ 1814. A Yoluntary deposit is made by one giving to 
another, with his consent, the possession of personal property 
to keep for the benefit of the former, or of a third party. 
The person givinp: is called the depositor, and the person re- 
ceiving the depositary. 

§ 1816. An involuntary deposit is made : 

1. By the accidental leaving or placinj^ of personal property 
in the possession of any person, without negligence on the 
part of Its owner ; or, 

2. In cases of fire, shipwreck, inundation, insurrection, riot, 
or like extraordinary emer<;encies, by the owner of personal 
property committing it, out of necessity, to the care of any 
person. 

§ 1816. The person with whom a thing is deposited in 
the manner described in the last section is bound to takt 
tharge of it, if able to do so. 

§ 1817. A deposit for keeping is one in which the depoai 
tary is bound to return the identical thing deposited. 

§ 1818. A deposit for exchange is one in which the d» 
positary is onl^ bound to return a thing corresponding in lda4 
to that which is depobited. 



U9 DSP08IT. K 1822-1827 

ARTICLE n. 

OBLIGATIONS OP THS DUPOSITABT. 

SionoN 1822. Depositary must <l«liTer on demand. 

1823. No obligation to deUyer without demaad. 

1824. Place of deUTery. 

1825. Notice to owner of adTerie claim. 

1826. Notice to owner of tiling wzongfollj detained. 

1827. Delirery of thing owned jointly, so, 

§ 1822, A depositary- must deliver the thing to the person 
for whose beneKt it was deposited, on demand, whether the 
deposit was made for a specified time or not, unless he has a 
lien upon the thiii<^ deposited, or has been forbidden or pre- 
vented from doing so hy the real owner thereof, or by the 
act of the law, and has given the notice required by section 
1825. 

§ 1823. A depositaiy is not bound to deliver a thing de- 
posited without demand, even where the deposit is made for a 
specified time. * 

§ 1824. A depositary must deliver the thing deposited 
at his residence or place of business, as may be most conven- 
ient for hin«. 

§ 1825. A depositary most ^ive prompt notice to the per- 
son for whose benefit the deposit was made, of any proceed- 
ings taicen adversely to his mterest in the thing deposited, 
which may tend to excuse the depositary from delivering the 
thing to him. 

§ 1826. A depositary, who believes that a thing deposited 
with him is wrongfully detained from its true owner, may 
give him notice of the deposit ; and if within a reasonable 
time afterwards he does not claim it, and sufficiently establish 
his right thereto, and indemnify the depositary against the 
claim of the depositor, the depositary is exonerated from lia- 
bility to the person to whom he gave the notice, upon return- 
ing the thing to the depositor, Dr assuming, in good faiih, a 
new obligation changing his position in respect to the thing, 
\f> his prejudice. 

I 1937. If a thing depodted is owned jointly or^in 



§§ 1833-1836 DEPOSIT. 264 

mon by persous who cannot agree npon the manner of iti 
deliyerv, the depositary may deliver to each his proper shart 
Uiereo^ if it can be done without injury to the thini;. 



CHAPTER 11. 
DEPOSIT FOR KEEPING. 

AbticlbI. Gxniral PiioyisioNS,|§ 1838-1840. 
II. Gratuitous Deposit, §§ 1844-1847. 

III. Storagb, §§ 1851-1855. 

IV. Innkeepers, §§1859-1868. 
V. Finding, §§ 1»S4-1872. 

ARTICLE I. 

GENERAL PROVISIONS. 

IsonOH 1883. Depositor must indemnify depositary 

1834. Obligation of depositary of animals. 

1885. Obligations as to use of thing deposited. 

1836 Liability for damage arising from wrongfo. lua 

,1887. Sale of thing in danger of perishing. 

1888. Injury to, or loss of thing deposited. 

1889. Service rendered by depositary. 
1840. Extent of his liability for negUgence. 

§ 1833. A depositor must indemnify the depositary: 

1. For all dama^ caused to him by the defects or vices ci 
the thing deposited ; and, 

2. Eor all expenses necessarily incurred by him about the 
thing, other than such as are involved in tlie nature of the 
undertaking. 

§ 1834. A depositary of living animals must provide them 
with suitable food and shelter, and treat them kindly. 

§ 1836. A depositary may not use the thing deposited, oi 
permit it to be used, for any purpose, without the consent o{ 
the depositor. He may not, if it is purposely fastened by the 
depositor, open it without the consent of the latter, except in 
case of necessity. 

I 1886. A depositary is liable for any damage happeaiiif 



E65 DEPOSIT. §§ 1837-1846 

to the thing deposited, dnring his wrongful nse thereof, nn- 
less such damage must inevitably have happened thoagh the 
property had not been thus used. 

§ 1837. If a thing deposited is in actual danger of perish- 
ing 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. 

§ 1838. If a thing is lost or injured during its deposit, 
and the depositary refuses to inform the depositor of the cir- 
cumstances under which the loss or injury occurred, so far as 
he has information concerning them, or wilfully misrepresents 
the circumstances to him, the depositary is presumed to have 
wilfully, or by gross negligence, permitted the loss or injury 
to occur. 

63 Cal. 736. 

§ 1839. So far as any service is rendered by a depositary, 
or requiied from him, his duties and liabilities are prescribed 
by the Title on Employment and Service. 

§ 1840. Tlie liability of a depositary for negligence can- 
not exceed the amount which he is informed by the depositor, 
or has reason to suppose, the thing deposited to be worth. [lu 
effect July 1,1874.] 

ARTICLE II. 

GBATUITOUS DEPOSIT. 

SsoraoH 1844. Gratuitous deposit, wliat. 

1845- Nature of involuntary deposit. 

1846. Degree of care required of giatuitouB depositary. 

1847. Ilis duties cease, when. 

§ 1844. Gratuitous deposit is a deposit for which the de- 
positary receives no consideration beyond the mere possession 
of the thing deposited. 

§ 1845. An involuntary deposit is gratuitous, the deposi- 
taiy being entitled to no reward. 

§ 1846. A gratuitous depositary must use, at least, slight 
for the preservation of the thing deposited. 



SS 1847-1855 D£P08iT. 266 

§ 1847. The duties of a grratuitous depositary cease : 

1. Upon his restoring the thing deposited to its owner; or, 

2. U|»on his givinir reasonable notice to the owner to remove 
ft, and the owner failinji: to do so within a reasonable time. 
But an involuntary depositary, under subdivision 2 of section 
1815, cannot give such notice until the emergency which gave 
rise to the deposit is past. 

ARTICLE III. 

STOKAGB. 

BconoN 1861. Bepoftit for hire. 

1S62. Degree of care required of depositary for hire. 

1853. Rate of compenRation for fraction of a week, &e 

1854. Termination of deposit. 

1855. Same. 

§ 1851. A deposit not gratuitous is called storage. TIm 
depositary in such case is called a depositary for hire. 

§ 1852. A depositary for hire must use at least ordinary 
care for the preservation of the thing deposited. 

56 Cal. 485. 

§ 1863. In the absence of a different agreement or nsage, 
a depositary for hire is entitled to one week's hire for the sus- 
tenance and shelter of living animals during any fraction of a 
week, and to half a month's hire for the storage of any other 
property during any fraction of a half month. 

§ 1 864. In the absence of an agreement as to the length 
of time during which a deposit is to continue, it may be ter* 
minated by the depositor at any time, and by the depositarj 
npon reasonable notice. 

S 1856. Notwithstanding an agreement respecting the 
length of time during which a deposit is to continue, it niay 
be terminated by the depositor on paying all that would be^ 
come due to the depositary in case of the deposit ao < 

log. 



,y Google 



^ 



, till 



167 DBPOBiT. §§ 1869-1862 

ARTICLE nr. 

IKNKEEPBB8. 

Baonov 1859. Innkeeper's liability. 

1860. How exempted from liability. 

1861. Lien of boarding and lod^ng-honw keeperg. 

1862. Sale of ba^age by boarding or lodging-hoxuse k«^tii. 

1863. Notices in hotels and boarding>>hoa8ea. 

§ 1869. An innkeeper is liable for all losses of or injnriet 
to personal property placed by his guests under his care, un- 
less occasioned by an irresistible superhuman cause, by a pub- 
lic enemy, by the neuligence of the owner, or by the act of 
some one whom he brought into the inn. 

Refusing to receive and entertain guests a misdemeanor. Penal Code, 
|*366. 

§ 1860. If an innkeeper keeps a fireproof safe, and gives 
notice to a guest, either personally or by putting up a printed 
notice 11 a prominent place in the room occupied by the guest, 
that he keeps such a safe, and will not be liable for m«)ney, 
jewelry, documents, or other articles of unusual value and 
small compass, unless placed therein, he is not liable, except 
jso far as his own acts contribute thereto, for any loss of or in- 
jury to such articles, if not deposited with him, and not re- 
quired by the guest for present use. 

§ 1861. Hotel men, boarding-house and lodging-house 
keepers, shall have a lien upon the baggage and other prop- 
erty of value of their guests, or boardera, or lodgers, brought 
into such hotel, inn, or boarding or lodging-house by such 
guests, or boarders, or lodgers, K>r the proper charges due 
from such guests, or boarders, or lodgers, for their accommo- 
dation, board and lodging, and room rent, and such extras as 
,.re furnished at their request, with the right to the possession 
;.f such baggage, or other property of value, until all such 
charges are paid. [In effect April 1, 1876.] 

§ 1862. Whenever any trunk, carpet bag, valise, box, 
handle, or other baggige has heretofore come, or shall here- 
ifter come, into the possession of the keeper of any hotel, 
mn, boarding, or loJging-honse, as such, and has remained, 
or shall remain, unclaimed for the period of six months, 
inch keeper may proceed to sell the same at public auo* 



{ 1863 DEPOSIT. 268 

kion, and out of the proceeds of such sale may retain the 
charges for storage, ii any, and the expense of advertising 
and sale thereof ; but no such sale shall be made until the ex- 
piration of four weeks from the first publication of notice of 
such sale in a newspaper published m or nearest the city- 
town, village, or place in which said hotel, inn, boarding of 
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 bag- 
gage, as near as may be ; the name of the owner, if known ; 
the name of said keeper, and the time and place of sale ; and 
the expenses incurred for advertising shall be a lien upon such^ 
trunk, carpet Img, valise, box, bundle, or other bajrgage, in a* ^,* 
ratable proportion, according to the value of such piece of. 
property, or thing, or article sold ; and in case any balance 
arismg 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 there- 
after, the same shall be paid into the general fund of said 
county. [In effect April 1, 1876.] Jf 

§ 1863. Every keeper of a hotel, inn, boarding or lodging ^ 
house shall post, in conspicuous place, in the office, or pubbc 
room, and in every bedroom of said hotel, boarding- honse, 
inn, or lodging-house, a printed copy of this section, and a 
statement of charjie, 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 ser- 
vice not actually rendered, or for any item not actually deliv- 
ered, 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 or an^ provision 
herein contained, the offender shall forfeit to the injured party 
three times the amount of the sum charged in eycess of what 
\t is entitled to. [In effect April 1, 1876.) 



,y Google 



169 DBP08IT. §§ 1804 1869 

AKTICLE V. 

FINDING. 

Waonov 1864. Obligation of Under. 

1865. Finder to notify owner. 
1868. Claimant to proTe ownership. 

1867. Reward. &c., to finder. 

1868. Finder may pat thinx found on ttoran. 

1869. When finder may sell the thing found. 

1870. How sale is to be made. 

1871. Surrender of thing to the finder. 

1872. Thing abandoned. 

§ 1864. One who finds a thing lost is not bonnd to tak« 
charge of it, but if he does 8o he is thenceforward a depositarj 
for the owner, with the rights and obligations of a depositarj 
for hire. 

§ 1865. If the finder of a thing knows or suspects who U 
the owner, he must, with reasonable diligence, give him notice 
of the finding ; and if he fails to do so, he is liable in damages 
to the owner, and has no claim to any reward offered by him 
for the recovery of the thing, or to any compensation for his 
trouble or expenses. 

If owner Is not known finder must report to justice of the peace and 
advertise. If he fails to do so he forfeits double the value thereof to tht 
owner. Pol. Code, §§ 313&^142 ; Penal Code, § 486. 

§ 1866. The finder of a thing may, in good faith, before 
giving it up, require reasonable proof of ownership from any 
person claiming it. 

Pol. Code, §§ 3136-8142. 

§ 1867. The finder of a thing is entitled to compensation 
for all expenses necessarily incurred by him in its preservation, 
and for any other service 'necessarily performed by him about 
it, and to a reasonable reward for keeping it. 

§ 1868. The finder of a thing may exonerate himself 
from liability at any time by placing it on storage with any 
Responsible person of good character, at a reasonable expense 

§ 1869. The finder of a thing may sell it, if it is a thing 
which is commonly the subject of sale, when the owner can- 
iot, with reasonable diliger^e, be found, or being found, r» 
IR 



5§ 1870-1878 LOAW. 270 

fnses, upon demand, to pay the lawful charges of the finder. 
In the following cased : 

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. 

Pol. Code, §§3136-8142. 

§ 1870. A sale under the provisions of the last section 
must be made in the same manner as the sale of a thing 
pledged. 

§ 1871. The owner of a thing found may exonerate him- 
self from the claims of the finder by surrendering it to him in 

satisfaction thereof. 

> 

§ 1872. The provisions of this article have no application 
to things which have been intentionally abandoned by their 
owners. 



CHAPTER III. 

DEPOSIT FOR EXCHANGE. 

SxcTiON 1878. Relations of the pftrties. 

{ 1878. A deposit for exchange transfers to the depositary 
the title to the thin^ deposited, and creates between him and 
lh« depositor the relation of debtor and creditor merely. 



TITLE IV. 
LOAN. 



CiuncR I. Loan for Use, §§ 1884-1896. 

II. Loan for Exchange, §§ 1902-190^ 
III. Loan of Monet, §§ 1912-1990. 



,y Google 



171 u>AV. §S 1884-1890 

CHAPTER I. 

I.OAN FOB USB, 

Sionoir 1884. Loan, what. 

1886. Title to property I«Qt. 

1886. Care required of borroww. 

1887. SamA. 

1888. Degree of skill. 

1889. Borrower, when to repair iajuriof . 

1890. Use of thing lent. 

1891. Relending forbidden. 

1892. Borrower, when to bear ezpenfles 

1893. Lender liable for defects. 

1894. Lender may require return of thing l«nt 

1895. When returnable without demand. 

1896. Place of return. 

§ 1884. A loan for nse is a contract by which one givM 
to another the temporary possession and nse of personal prop* 
erty, and the latter agrees to return the same thing to him at 
a future time, without reward for its use. 

§ 1885. A loan for use does not transfer the title to the 
thing ; and all its Increase during the period of the loan be- 
longs to the lender. 

§ 1886. A borrower for use must nse great care for the 

1)reBerTation in safety and in good condition of the thing 
ent. 

§ 1887. One who borrows a living animal for use must 
treat it with great kindness, and provide everything necessary 
and suitable for it. 

§ 1888. A borrower for nse is bound to have and to exer- 
cise such skill in the care of the thing lent as he causes the 
lender to believe him to possess. 

§ 1889. A borrower for use must lepair all deteriorations 
0. injuries to the thing lent, which are occasioned by his neg- 
ligence, however slight. 

§ 1890. The borrower of a thing for use may use it for 
fuch purposes only as the lender might reasonably anticipate 
%t the time of lending. 



§§ 1801-1896 LOAN. S71 

§ 1891. The borrower of a thing for use fnust not part 
with it to a third person, without the consent of the lender. 

§ 1892. The borrower of a thing for n»6 must bear all its 
expenses during the loan, except such as are necessarily in- 
curred by him to preserve it from unexpected and unnsual 
injury. For such expenses he is entitled to compensation from 
the lender, who may, however, exonerate himself by surren- 
dering the thing to the borrower. 

-§ 1893. The lender of a thing for use must indemnify the 
borrower for damage caused by defects or vices in it, which 
he knew at the time of lending, and concealed from the bor- 
rower. 

§ 1894. The lender of a thing for use may at any time 
require its return, even though he lent it for a specified time 
or purpose. But if, on the faith of such an agreement, the 
borrower has made such arrangements that a return of the 
thing before the period agreed upon would cause him loss, ex- 
ceeding the benefit derived by him from the loan, the lender 
must indemnify him for such loss, if he compels such return, 
the borrower not having in any manner violated his duty. 

§ 1896. If a thing is lent for use for a specified time or 
purpose, it must be returned to the lender without demand, as 
Boon as the time has expired, or the purpose has been accom- 
plished. In other cases it need not be returned until de- 
manded. 

§ 1896. The borrower of a thing for use must return it to 
the lender, at the place contemplated by the parties at the 
time of lending ; or if no particular place was so contem 
felated by them, then at the place where it was at that timo. 



CHAPTER IL 
LOAN FOB EXCHANGE. 

iecwoir 1902. Loan for exchange, what. 
1908. Same. 

1904. Title to property lent. 
1906. Conferaot cannot be modified by Imm^m, 
1906. Certain •ectioiiBappUcabJ^,,3, by UOOgk 



073 LOAN. §§ 1902-1918 

§ 1902. A loan for exchange is a contract by which one 
lelivers personal property to another, and the latter agrees to 
return to the lender a similar thing at a future time, \lthout 
reward for its use. 

§ 1903. A loan, which the borrower is allowed by the 
lender to treat as a loan for use, or for exchange, at his op- 
tion, is subject to all the provisions of this chapter. 

§ 1904. By a loan for exchange the title to the thing lent 
18 transferred to the borrower, and he must bear all its ex* 
penses, and is entitled to all its increase. 

§ 1905. A lender for exchange cannot require the bor- 
rower to fulfil his obligations at a time, or in a manner, differ- 
ent from that which was originally agreed upon. 

§ 1906. Sections 1893, 1895, and 1896, apply to a loan for 
exchange. 



CHAPTER IIL 
LOAN OF MONEY. 

BaonoH 1912. Loan of money. 

1913. Loan to be repaid in current money. 

1914. Loan presumed to be on interest. 
1916. Interest, what. 

1916. Annual rate. 

1917. Legal interest. 

1918. Same. 

1919. Interest becomes part of principal, when. 

1920. Interest on judgment. 

§ 1912. A loan of money is a contract by which one da- 
livers a sum of money to another, and the latter agrees to re- 
turn at a future time a sum e(|uivalent to that which ho bor- 
rowed. A loan for mere use is governed by the Chapter on 
Loan for Use. 

§ 1913. A borrower of money, unless there is an express 
contract to the contrary, must pay the amount due in such 
money as is current at the time when the loan becomes due, 
whether such money is worth more or less than the actual 
tioney lent. 



a 1914-1920 hOAX. 274 

§ 1914. Whenever a loan of money is made, it is pie^ 
mmed to be made upon interest, unless it is otherwise ex- 
pressly stipulated at the time in writing. [In e£Eect July 1, 
1»74.J 

§ 1915. Interest is the compensation allowed by law or 
^ fixed by the par lies for the use, or forbearance, or detentioa 
*f money, [in effect July 1, 1874.] 

§ 1916. When a rate of interest is prescribed by a law ot 
contract, without specifying the period of time by which such 
mte is to be calculated, it is to be deemed an annual rate. 

§ 1917. Unless there is an express contract in writing 
fixing a different rate, interest is payable on all moneys at the 
rate of seven per cent, per annum, after they become due on any 
instrument of writing, except a judgment, and on moneys lent 
or due on any settlement of accounts, from the day on which 
the balance is ascertained, and on moneys received to the use 
of another and detained from him. In the computation of in- 
terest for a period less than a year, three hundred and sixt; 
days are deemed to constitute a year. [In effect April 16, 1878.' 

57 Cal. 643. 

§ 1918. Parties may agree in writing for the payment of 
any rate of interest, and it shall be allowed, according to the 
terms of the agreement, until the entry of judgment. 

§ 1919. The parties may, in any contract in writing 
whereby any debt is secured to be paid, agree that if the inter- 
est on 8uch debt is not punctually paid, it shall become a part 
of the principal, and thereafter bear the same rate of interesi 
ts the principal debt. 

S 1920. Interest is payable on judgments recovered in th« 
ecurts of this State, at the rate of seven per cent, per annum 
^d no greater rate, but such interest must not be compoundai 
In any manner or form. [In effect July 1, 1874.] 

4»Clal.m 



,y Google 



5 



175 Hu»o. §§ 1925-1929 

TITLE V. 
HIRING. 

Chaftbk I. Hiring ih General, §§ 1925-1935. 

IT. Hiring op Keal. Property, §§ 1941-1950. 
III. Hiking of Personal PROPERTr, §§ 1955-lMt. 



CHAPTER L 
HIBINa IN aBNBBAIj. 

Sionoir 1925. Hiring, what. 

1926. Products of thing. 

1927. Quiet po(i86Mion. 

1928. Degree of care, &c., on part of hixw. 

1929. Must repair injuries, &e, 

19dO. Thing let for a particular purpose. 

1931. When letter may terminate the hiring. 

1932. When hirer may terminate the hiring. 
1938. When hiring terminates. 

1931 When terminated bj deat^, &e,, of party. 
1986. Apportionment of hire. 

§ 1925. Hiring is a contract by which one gives to anot^«r 
Ihe temporary possession and use of property, other than 
money, tor reward, and the latter agrees to return the same 
to the former at a future time. 

§ 1926. The products of a thing hired, during the hiring, 
belong to the hirer. 

§ 1927. An agreement to let upon hire binds the letter to 
lecure to the hirer the quiet possession of the thing hired dur- 
ing the term of the hiring, against all persons lawfully claim- 
kig the same. 

§ 1928. The hirer of a thing must use ordinary care for 
i\8 preservation in safety and in good condition. 

§ 1929. The hirer of a thing must repair all deteriorationi 
VT iDJuries thereto occasioned by his ordinary negligenc«. 



{§1930-1935 HIRING 276 

§ 1930. When a thing is let for a particular purpose the 
hirer must not use it for any other purpose; and if he docs, 
the letter may hold him responsible for its safety during such 
use in all events, or may treat the contract as thereby re- 
iciuded. 

§ 1931. The letter of a thing may terminate the hiring 
and rt'claim the thing before the end of the term agreed upou : 

1. When the hirer uses or permits a use of the thing hired 
Id a manner contrary to the agreement of the parties ; or, 

2. When the hirer does not, within a reasonable time after 
request, make such repairs as he is bound to make. 

§ 1932. The hirer of a thing may terminate the hiring 
before the end of the terra agreed uy)on : 

1 . When the letter does not, within a reasonable time after 
request, fulfil his obligations, if any, as to placing and secur- 
ing the hirer in the quiet possession of the thing hired, or 
putting it into good condition, or repairing ; or, 

2. When the greater part of the thing hired, or that part 
which was and which the letter had at the time of the hiring 
reason to believe was the material inducement to the hirer to 
enter into the contract, perishes from any other cause than 
tlie ordinary negligence of the hirer. 

§ 1933. The hiring of a thing terminates : 

1. At the end of the term agreed upi>n ; 

2. By the mutual consent of the parties; 

3. By the hirer acquiring a title to the thing hired supe- 
rior to that of the letter ; or, 

4. By the destruction of the thing hired. 

^ 1934. If the hiring of a thing is terminable at th« 
^.-asure of one of the parties, it is terminated by notice to the 
ither of his death or incapacity to contract. Jn other cases it 
is not terminated thereby. 

§ 1935. When the hiring of a thing is terminated before 
I he time originally agieed upon, the hirer must pay the due 
pi*oportion of the hire for such use as he has actually madf 
Df the thing, unless such use is merely nominal, and of nt 
De&efit to him. .• 

Digitized by VjOOQIC 



177 Hisivo. §§ 1941-1944 

CHAPTER IL 
HIRING OF REAL PROPERTY 

IwmOH 1941. Lessor to make dwelling-house fit for its 

1942. When lessee may make repairs, &c. 

1943. Term of hiring when no limit is fixed. 

1944. Hiring of lodgings for indefinite term. 
1946. Renewal of lease by lessee's continued 

1946. Notice to quit. 

1947. Bent, when payable. 

1948. Attornment of a tenant to a stranger. 

1949. Tenant must deliver notice served on him. 

1950. Letting parts of rooms forbidden. 

§ 1941. The lessor of a building intended for the occqiia- 
feion of human beings must, in the absence of an agreement 
to the' contrary, put it into a condition fit for such occapa- 
tion, and repair all subsequent dilapidations thereof, which 
render it untenantable, except such as are mentioned in sec- 
tion nineteen hundred and twenty-nine. [In effect July 1, 
1874.] 

§ 1942. If within a reasonable time after notice to the 
lessor, of dilapidations which he ought to repair, he neglects 
k) do so, the lessee may repair the same himself, where the 
sosts of such repairs do not require an expenditure greater 
than one month s rent of the premises, and deduct the ex- 
penses of such repairs from the rent, or the lessee may vacate 
the premises, in which case he shall be discharged from fnr- 
iier payment of rent, or performance of other conditions. [In 
jffect J'uly 1, 1874.] 

V § 1943. A hirinj^ of real property, other than lodgings 
»jd dwelling-houses, in places where there is no usage on the 
Aibject, is presumed to be for one year from its commence- 
ment, unless otherwise expressed in the hiring. 

§ 1 944. A hiring of lodgings or a dwelling-house for an un- 
ipecified term is presumed to have been made for such length 
of time as the parties adopt for the estimation of the rent. 
Thus a hiring at a monthly rate of rent is presumed to l;e tor 
«ne month. In the absence of any agreement respecting the 
mngih of time or the rent, the hirmg is presumed to bs 
monthly. ^ , 

Digitized by VjOOQIC 



K 1945-1950 RisiHO. 278 

Y § 1945. If a lessee of real property remains in possession 

15 thereof after the expiration of the hiring, and the lessor ac- 

2^ cepts rent from him, the parties are presumed to have re- 

Dewed the hiring on the same terms and for the same time 

not exceeding one month when the rent is payable monthly, 

nor in any case one year. 

cc § 1946. A hiring of real property, for a term not specified 

^ '^ by the parties, is deemed to be renewed as stated in tne last 

section, at the end of the term implied by law, unless one of 

the parties gives notice to the other of his intention to termi- 

* Date the same, at least as long before the ex})iration thereof am 

the term of the hiring itself, not exceeding one month. 

§ 1947. When there is no usage or contract to the con- 
trary, rents are payable at the termination of the holding, 
when it does not exceed one year. If the holding is by the 
day, week, month, quarter, or year, rent is payable at the ter- 
mination of the respective periods, as it successively becomes 
due. 

§ 1948. The. attornment of a tenant to a stranger is void, 
unless it is made with the consent of the landlord, or in con- 
sequence of a judgment of a court of competent jurisdiction. 

§ 1949. Every tenant who receives notice of any proceed- 
ing to recover the i*eal property occupied by him, or the poe- 
session thereof, must immediately inform his landlord of the 
same, and also deliver to the landlord the notice, if in writmg, 
and is responsible to the landlord for all damages which he 
may sustain by reason of any omission to inform him of the 
notice, or to deliver it to him if in writing. [In eiiect July 
I, 1874.] 

§ 1960. One who hires part of a room for a dwelling is 
entitled to the whole of the room, notwithstanding any agree- 
ment to the contrary; and if a landlord lets a room as a 
dwelling for more than one family, the pers<m to whom ne 
first lets any part of it is entitled to the possession of the whot« 
room for the term agreed upon, and everv tenant in the build- 
jig, under the same landlord, is relieved from all obligation to 
pay rent to him while such double letting of any room coi» 

8m Aflt of April 8, 1876, Concerning Lodging-houMt uidrSleepinff Apu% 

•Mite, AppOldiS, pp. uigitized by LjOOQTC 



• t79 RiBivo. §§ 1955-1959 

CHAPTER ni. 
HIBING OP PEBSONAL PROPHBTT. 

BionoH 1956. Obllgstions of letter of personal property. 

1956. Ordinary expenses. 

1957. Extraordinary expenses. 

1968. Return of thing hired. 

1969. Charter party, what. 

§ 1955. One who lets personal property must deliver it to 
the hirer, secure his quiet enjoyment thereof against iJl law- ' 
fnl claimants, put it into a condition fit for the purpoie foi 
which he lets it, and repair all deteriorations thereof not oc- 
casioned by the fault of the hirer and not the natural result 
of its use. 

§ 1956. A hirer of personal property must bear all such 
expenses concerning: it as might naturally be foreseen to at- 
tend it during its use by him. Ail other expenses must be 
borne by the letter. 

§ 1957. If a letter fails to fulfil his obligations, as pre- 
scribed by section 1955, the hirer, after giving him notice to 
do so, if such notice can conveniently be given, may expend 
any reasonable amount necessary to make good the letter's de- 
fault, and may recover such amount from him. 

§ 1958. At the expiration of the term for which personal 
property is hired, the hirer must return it to the letter at the 
place contemplated by the parties at the time of hirinp^; or, 
if no particular place was so contemplated by them, at the 
place at which it was at that time. 

§ 1959. The contract by which a ship is let is termed a 
charter party. By it the owner may either let the capacity 
or burden of the ship, continuing the employment of the own- 
er's master, crew, and equipments, or may surrender the en- 
tire ship to the charterer, who then provides them himsdf 
The master or a part owjxfh ma^^ be acharterei. 



,y Google 



f§ 1966-1960 SBBYiOB. ^ MO 

TITLE VI. 

SERVICE. 

Chaftbr I. Servick with Employment, §§ 1965-2003. 
11. Particular Employments, §§ 2009-2072. 
III. Service without Employment, §§ 207S-2(W* 



CHAPTER I. 
SERVICE WITH EMPIiOYMBNT. 

Amcu I. Defikition ov Ehplotmbnt, § 1965. 

II. OBLiaATioxs or thk Emploter, H 1969-1971. 

III. Oblioations op the Employee, |§ 1975-1992. 

IV. Termination of Employment, §§ 1996-2008. 

ARTICLE I. 

DEFINITION OP EMPLOYMENT. 

^^ SscnoM 1965. Employment, what. 

124 98 

§ 1965. The contract of employment is a contract bj 
which one, who is called the employer, engages another, who 
is called the employee, to do something for the benefit of tlie 
employer, or of a third person. 
55 Gal. 274. 

ARTICLE II. 

OBLIGATIONS OP THE EMPLOTEB. 

IbCTlON 1969. When employer must indemnify employee. 

1970. When not. 

1971. Employer to indemnify for hia own negligence. 

§ 1969. An employer must indemnify his employee, ex 
cept as prescribed in the next section, for all that he necessa 
rily expends or loses in direct consequence of the discharge o» 
his duties as such, or of his obedience to the directions of tht 
employer, even though unlawful, unless the employee, at tht 



m BBKTicx. §§ 1970-1977 

time of obeying such diiections, believed them to be on- 
lawful. 

§ 1970. An employer is not bound to indemnify hiii em- 
ployee for losses suffered by the latter in conseciuence of the 
^ordinary risks of the business in which he is employed, nor in 
^coiisequence of the neglijirence of another person employed by 
*N the same employer in the same jj^eiieral hu>inesM, nnless he 
' has neglected to use ordinary care in the selection of the cul- 
^pable employee. 

61 Cal. 117, 257 ; 53 Cal. 36 ; 67 Cal. 16, 20. 

§ 1971. An employer must in all cases indemnify his eifr 
ployee for losses caiued by the former's want of ordinary care. 



ARTICLE III. 

OBUOATION8 OF THB BMPLOTBB. 

iMmOK 1976. BatieB of gnttoitous employee. 

1976. Same. 

1977. Same. 

1978. Duties of employee for reward. 

1979. Duties of employee for his own benefit. 

1980. Contiacta for serrice limited to two yem. 

1981. Employee must obey employer. 

1982. Employee to conform to usage. 

1983. Degree of slcill required. 

1984. Must use what skill he has. 
1965. Wliat belongs to employer. 

1986. Duty to account. 

1987. Employee not bound to deliver without 

1988. Preference to be given to employers. 
1969. Responsibility of employee for substitute. 

1990. Responsibility for negligence. 

1991. Surviving employee. 

1992. Confidential employment. 

§ 1976. One who, without consideration, undertakes to do 
a service for another, is not bound to perform the same, but \i 
he actually enters upon its performance, he muft use at least 
4ight care and diligence therein. 

§ 1976. One who, by his own special request, induces an- 
V ther to intrust him with the performance of a service, must 
oerform the same fully. In other cases, one who undertakes 
» gratuitous senice may relinqaish it at any time. 

§ 1977. A gratuitous employee, who accepts a writteii 



|§ 1978-1985 BERYICB. 281 

po'wer of attorney, must act under it so lon(^ as it remains ia 
force, or until he gives notice to his employer that he will not 
do so. 

§ 1978. One who, for a ffood consideration, af:ree8 tc 
ser\'e another, must perform the service, and must use ordi- 
nary care and diligence therein, so long as he is thus em-« 
ployed. 

§ 1979. One who is employed at his own request to do- 
that which is more for his own advanta^ than for that of hifl 
employer, must use j^reat care and diligence therein to pro> 
tect the interest of the latter. 

§ 1980. A contract to render personal service, other than 
A contract of apprenticeship, as provided in the Chapter on 
Master and Servant, cannot be enforced against the employee 
beyond the term of two years from the commencement of sei- 
vice under it ; but if the employee voluntarily continues his 
service under it beyond that time, the contract may be referi^d 
to as affording a presumptive measure of the compensation. 

§ 1981. An employee must substantially comply with all 
the directions of his employer concerning the service on which 
he is engaged, except where such obedience is impossible or 
unlawful, or would impose new and unreasonable burdens 
upon the employee. [In effect July 1, 1874.] 

§ 1982. An employee must perform his service in conform- 
ity to the usage of the place of performance, unless otherwise 
directed by his employer, or unless it is impracticabld", or man- 
ifestly injurious to his employer to do so. 

§ 1983. An employee is bound to exercise a reasonable de- 
frree of ^kill, unless his employer has notice, before employing 
him, of his want of skill. 

§ 1984. An employee is always bonnd to nse such skill at 
he ])ossesses, so far as the same is required, for the service 
specified. [In effect July 1, 1874.] 

§ 1986. Everythin^jf which an employee acquires by virtue 
of his cmplm-mcTit, except the compensation, if any, which if 
»Qe to him from his emplo}er, belongs to the latter, whether 



nM SBBTicB. K 19811-199-4 

»cqnired lawfnlly or DDlawfnlly, or dnring or after the ezpira* 
tion of the term of his employ liieut. 

§ 1986. An employee mnst, on demand, render to his em- 
ployer just accounts of all his transactions in the conrse of his 
Bervice, as often as may he reasonable, and must, without d» 
mand, ^ve prompt notice to his employer of everything which 
he receives for his account. 

§ 1987. An employee who receives anything on accoi it of 
his employer, in any capacity other than that of a mere ser- 
vant, is not bound to deliver it to him until demanded, imil ii 
Dot at liberty to send it to him from a distance, without de 
mand, in any mode involving greater risk than its retention 
by the employee himself. 

§ 1988. An employee who has any business to transact on 
his own account, similar to that intrusted to him by his em- 

Sloyer, must always give the latter the preference. [In effect 
uly 1, 1874.] 

§ 1989. An emplovee who is expressly authorized to em- 
ploy a substitute is liable to his principal only for want of 
ordmary care in his selection. The substitute is directly re- 
sponsible to the principal. 

§ 1990. An employee who is guilty of a culpable degree of 
negligence is liable to his employer for the damage thereby 
cause<l to the latter ; and the employer is liable to him, if the 
service is not gratuitous, for the value of such services only aa 
are properly rendered. 

§ 1991. Where service is to be rendered by two or more 
persons jointly, and one of them dien, the survivor must act 
alone, if the service to be rendered is such as he can rightly 
perform without the aid of the deceased person, but not other- 
wise. 

§ 1992. The obligations peculiar to confidential emploj 
are defined in Uie Title on Trusts. 



,y Google 



|§ I9&6-2001 MRVicM «t»4 

ARTICLE rV. 

TBBMI NATION OF EMPLOYMENT. 

lEonoH 1996. Termination by death, &c., of employer. 

1997. Employment, how terminated. 

1998. Continuance of service in certain ( 

1999. Termination at will. 

2000. Termination by employer for fault. 

2001. Termination by employee for fault 
2U02. Oompenaation of employee dismissed for c 
2003. Compensation of employee leaving for cause. 

§ 1996. Every employment in which the power of tht 
employee is not coupled with an interest in its sabject is ter 
minated by notice to him of : 

1. The death of the employer ; or, 

2. His legal incapacity to contract. 

^ § 1997. Every employment is terminated: 
^^^ I. By the expiration of its appointed term; 
I'M 98 2. By the extinction of its subject ; 

3. By the death of the employee ; or, 

4. By his legal incapacity to act as such. 

§ 1998. An employee, unless the term of his service baa 
expired, or unless he has a right to discontinue it at any time 
without notice, must continue his service after notice of the 
death or incapacity of bis employer, so far as is nccesnary to 
protect from serious injury the interests of the employers 
successor in interest, until a reasonable time after notice of 
the facts has been communicated to such successor. The 
successor must compensate the employee for such 8ei*vice ac- 
cording to the terms of the contract of employment. 

§ 1999. An employment having no specified term may be 
1999 terminated at the will of either party, on notice to the other, 
vu^dQ except where otherwise provided by this title. 

§ 2000. An employment, even for a specified term, maj 
be terminated at any "time by the employer, in case of an; 
wilful breach of duty by the employee m the course of his em 
ployment, or in case of his habitual neglect of his duty o 
Bontinued incapacity to perform it. 

S 2001. An employment, even for a specified term, may bw 



>65 BEKvicB. §§ 2002~200d 

lenninuted by tlie employee at any time^ in case of any wilful 
or pennaneut l)i*uacii of ilie obligations of his employer to him 
as an employee. 

§ 2002. An employee, dismissed by his employer for good 
eause, is not entitled to any compensation for services ren- 
dered since the last day npon which a payment became due 
to him under the contract. 

§ 2003. An employee who quits the service of his employer 
for good cause is entitled to such proportion of the compensa 
tion which would become due in case of full performance, at 
tiie services which he has already rendered bear to the ser- 
riccs which he w^u to render as full performance. 



CHAPTER IL 
PARTICULAR EMPLOYMENTS. 

jUliou I. Mastr and Sebtant, §§ 2009-a01& 
II. Agents, §§ 2019-2022. 

III. Factors, {§ 2026-2030. 

IV. Shipmastb&s, §§ 2084-2044. 
V. Mates and Seamen, §§ 2048-2006 

VI. Ships' Manaos&s, $§ 2070-2072. 

ARTICLE I. 

MASTER AND BBBVANT. 

llonoH2009. Servant, what. 

2010. Term of hiring. 

2011. Same. 

2012. Renewal of hiring. 
2018. Time of senrice. 
2014. Servant to pay over withont demand 

124 97 2015. When servant may be discharged. 

§ 2009. A servant is one who is employed to render per* 
Bonal service to his employer, otherwise than in the pursuit 
df an independant calling, and who in such service remains 
entirely under the control and direction of the latter, who if 
fulled his master. 44 

19 



2009 



|§ 2010-2015 BERYICB. 386 

§ 2010. A sen'ant is presumed to have been hired fbf 

,g.Q Bueh length of time as the parties adopt for the estimation of 

cr «rages. A hiring at a yearly rate is presumed to be for one 

24 97 jrear ; a hirint^ at a daily rate, for one day ; a hiring by piece 

vrork, for no specified term. 

§ 2011. In the absence of any agreement or custom as to 

^2l the term of service, the time of payment, or rate or yalue oi 

124^"^ wa^es, a servant is presumed to be hired by the month, at a 

monthly rate of reasonable wages, to be paid when the servioij 

is performed. 

§ 2012. Where, after the expiration of an agreement r& 
Fpcctiug the wages and the term of service, the parties con- 
tinue the relation of master and servant, they are presumed 
to have renewed the agreement for the same wages and term 
of service. 

§ 2013. The entire time of a domestic servant belongs to 
the master ; and the time of other servants to such extent aa 
is usual in the business in which they serve, not exceeding if 
any case ten hours in the day. 

§ 2014. A servant mnst deliver to his master, as soon as 
with reasonable dih'gence he can find him, everything that 
he receives for his account, without demand ; but he is not 
bound, without orders fn>m his master, to send anything to 
him through another person. 

One who appropriates to his own use property of his employer is soil^ 
of embexziement. Penal Code, § 608. 

§ 2015. A master may discharge any servant, other than 
an apprentice, whether engaged for a fixed term or not : 

1. If he is guilty of misconduct in the course of his service, 
or of gross immorality, though unconnected with the same ; 
or, 

2. If, being employed about the person of the master, or in 
a confidential position, the master discovers that he has been 
epilty of misconduct, before or after the commencement o 
his service, of such a nature that, if the master had known oi 
lontemplated it, he would not have so employed him. 



,y Google 



ar BERYicB. §§ 2010-2027 

ARTICLE IL 



Smtxox 2019. Agent to eonfonn to hii authority 
aoao. Most keep his principal Infonnad 

2021. Collecting agent. 

2022. ResponsibiUty of 8nb-f«eni. 

§ 2019. An agent must not ex6eed the limits of his 
unthority, as defined by the Title on Agency. 

§ 2020. An agent most use ordinary dili{?ence to keep his 
principal informed of his acts in the oonrse of the agency. 

§ 2021. An agent employed to collect a negotiable instra- 
mcnt mn^ collect it promptly, and take all measures neces- 
Banr to charge the parties thereto, in case of its dishonor ; and, 
if It is a bill of exchange, must present it for acceptance with 
reasonable diligence. 

§ 2022. A mere agent of an agent is not responsible u 
nch to the principal of the latter. 



ARTICLE in. 

FACTORS. 

8scnon2026. Factor, what. 

2027* Obedience required from factor. 

2028. Sales on credit. 

2029. Liability of factor under guaranty comn^Mioii. 
2090. Factor cannot relieye himself from liability. 

§ 2026. A factor is an agent who, in the pursuit of an in- 
dependent calling, is employed by another to sell property for 
him, and is vested by the latter with the possession or control 
of the property, or authorized to receive pajrment therefor 
^m the purchaser. 

§ 2027. A factor must obey the instructions of his princi- 
pal to the same extent as any other employee, notwithstand- 
ing any advances he may hafe made to his principal upon th« 
property coui^igned to hira, except that if the principal forbida 
lim to sell at the market price, he may, nevertheless, sell foi 



|§ 2028-2036 beryicb. S88 

his reimbursement, after giving to his principal reasonable no> 
tice of his intention to do so, and of the time and place of s«l^, 
And proceeding in all respects as a pledgee. 

§ 2028. A factor may sell property consigned to him on 
such credit as is usual ; but, having ouce agreed with the pur- 
chaser upon the term of credit, may not extend it. 

§ 2029. A factor who charj^es his principal with a guar- 
anty commission upon a tsale, thereby assumes absolutely to 
pay the price when it falls due, as if it were a debt of his owe, 
and not as a mere guarantor for tlie purchaser ; but he does 
not thereby assume any additional responsibility for the safety 
of his remittance of the proceeds. 

§ 2030. A factor who receives property for sale, under a 
general agreement or usage to guarantee the sales or the re- 
mittance of the proceeds, cannot relieve himself from respon- 
sibility therefor without the consent of his principal. 



ARTICLE rv. 

8HIPMA8TEBS. 

20S4. Appointment of master. 

2085. When must be on board. 

2086. Pilotage. 

2037. Power of master over seamen. 

2038. Power of master oyer passengan. 

2039. Impressing private stores. 

2040. When 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. The master of a ship is appointed by the owner 
ind holds during his pleasure. 

§ 2036. The master of a ship is bound to be always o« 
W>ard when entering or leaving a port, harbor, or river. 

§ 2036. On entering or leaving a port, harbor, or river 
the master of a ship must take a pilot if one offers himsell 
and while the pilot is on board the navigation of the ship de 
rolvcs on him. 

Buties of PiloU and Pilot Commissioners, see Pol.rCbcle. SI 342I^9M7 

uigitized by vjOv? •• 



i69 8BBVICB. §§ 2037-2044 

§ 2037. The master of a ship may enforce the obedience 
of the mate and seamen to his lawful commands by confine- 
ment and other reasonable corporal punishment, not prohib- 
ited by acts of Con<;ress, being responsible for the abuse of hit 
power. 

§ 2038. The master of a ship may confine any person on 
board, during a voyage, for wilful disobedience to his lawfiil 
commands. 

§ 2039. If, during a voyage, the ship's supplies fail, the 
master, with the advice of the officers, may compel persons 
who have private supplies on board to surrender them for the 
common want, on payment of their value, or giving security 
therefor. 

§ 2040. The master of a ship must not abandon it during 
the voyage, without the advice oT the other officers. 

§ 2041. The master of a ship, upon abandoning it, muse 
carry with him, so far as it is in his power, the money and the 
most valuable of the goods on board, under penalty of being 
personally responsible. If the articles thus taken are lost 
from causes beyond his control, he is exonerated from lia- 
bility. 

§ 2042. The master of a ship, who engages for a common 
profit on the cargo, must not trade on his own account, and 
if he does, he must account to his employer for all profits thus 
made by him. 

§ 2043. The master of a ship must use great care and 
diligence in the performance of his duties, and is resp<msible 
for all damage occasioned by his negligence, however slight. 

§ 2044. The authority and liability of the master of a 
fhip, as an agent for the owners of the ship and cargo, art 
legulated by the Title on Agency. 



,y Google 



K 2048-2052 ssrtiO. 7199 

ARTICLE V. 

MATES AND SBAMXK. 

BKriOH 2048. Mate, what. 

2049. Seamen, what. 

2050. Mate and seamen, how engaged and dischaifed. 

2051. Unseaworthy Tessel. 

2052. Seamen not to lose wages or lien by agreement. 

2053. Special agreement with seamen. 

2054. Wages depend on freightage. 

2055. When wages, &c., begin. 

2056. Wages, where Toyage is broken up before departure. 

2057. Wrongful discharge. 

2058. Wages, when not lost by wreck. 
W59. Certificate. 

2U60. Disabled seamen. 

2061. Maintenance of seamen during sickness 

20'i2. Death on the Toyage. 

2068. Theft, &c., forfeits wages. 

2064. Seamen cannot ship goods. 

2065. Embezzlement and injuries. (Bepealed.) 

2066. Law goTeming seamen. 

§ 2048. The mate of a ship is the officer next in rank to 
the master, and in case of the master's disability he must take 
his place. By so doing he does not lose any of his rights as 
mate. 

§ 2049. All persons employed in the navigation of a ship, 
or upon a voyage, other than the master and mate, are to be 
deemed seamen within the provisions of this Code. 

§ 2060. The mate and seamen of a ship are engaged by 
the master, nnd may be discharged by him at any period of 
the voyage, for wilful and persistent disobedience or gross dis- 
qualification, but cannot otherwise be discharged before the 
termination of the voyage. 

§ 2061. A mate or.seaman is not bound to go to sea in a 
uttip that is not seaworthy ; and if there is reasonal)]e doubt o^ 
its seaworthiness, he may refuse to proceed until a proper sur 
vey has been had. 

§ 2052. A seaman cannot, by reason of any agreement 
bo deprived of his lien upon the ship, or of any remedy fop th« 
•tcovery of his wages to which he would otherwise have been 



191 BERViCB. §§ 2053-2060 

entitled. Any stipilation by which he consents to abandon 
his ri^ht to wages m case of the loss of the ship, or to abandon 
any right he may have or obtain in the nature of salvage, is 
void. 

§ 2053. No special agreement entered into by a seaman 
can impair any of his rights, or add to any of his obligations, 
as defined by law, unless he fully understands the effect of tho 
agreement, and receives a fair compensation therefor. 

§ 2054. Except as hereinafter provided, the wages of sea- 
men are due when, and so far only as, freightage is earned, 
unless the loss of freightage is owing to the fault of the owner 
or master. 

§ 2055. The right of a mate or seaman to wages and pro- 
visions 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 hrst happens. 

§ 2056. Where a voyage is broken up before departure of 
the ship, the seamen must be paid for. the time they have 
served, and may retain for their indemnity such advances as 
they have received. 

§ 2057. When a mate or seaman is wrongfully discharged, 
or is driven to leave the ship by the cruelty of the master on 
the voyage, it is then ended with respect to him, and he may 
thereupon recover his full wages. 

§ 2058. In case of loss or wreck of the ship, a seaman is en- 
titled to his wages up to the time of the loss or wreck, whether 
freightage has been earned or not, if he exerts himself to the 
utmost to save the ship, cargo, and stores. 

§ 2069. A certificate from the master or chief surviving 
officer of a ship, to the effect that a seaman exerted himself to 
the utmost to save the ship, cargo, and stores, is presumptive 
evidence of the fact. 

§ 2060. Where a mate or seaman is prevented from ren 
aering service by illness or injury, incurred without his fault, 
m the discharge of his duty on the voyage, or by being wrong 
lally discharged, or by a capture of the ship, he is entitled ta 



f§ 2061-2071 SERViCB. 29S 

irages notwithstanding ; bat in case of a capture, a latablc de- 
Auction for salvage is to be made. 

§ 2061. If a mate or seaman becomes sick or disabled dur- 
ing the voyage, without his fault, the expense of furnishing 
him with suitable medical advice, medicine, attendance, and 
other provision for his wants, must be borne by the ship till 
the close of the voyage. 

§ 2062. If a mate or seaman dies during the voyage, his 

p>}rsonal representatives are entitled to his wages to the time 
of his death, if he would have been entitled to them had he 
lived to the end of the voyage. 

§ 2063. Desertion of the ship without cause, or a justifi- 
able discharge by the master during the voyap:e, for miscon- 
duct, or a theft of any part of the cargo or appurtenances of 
the ship, or a wilful injury thereto or to the ship, forfeits all 
wages due for the voyage to a mate or seaman thus in fault. 

§ 2064. A mate or seaman may not, under any pretext, 
Bhip goods on his own account without permission from the 
master. 

. § 2065 of said Code is repealed. [In effect July 1, 1874.] 

§ 2066. The shipment of ofTicers and seamen, and their 
tights and dnties, are further regulated by acts of C< ingress. 



ARTICLE VI. 

ships' MANAOERS. 

Sjbction 2070. Manager, what 

2071. Duties oi manager. 

2072. CompenBation. 

§ 2070. The general agent for the owners, in respect to 
the care of a ship and freight, is called the manager. If he 
Is a part owner, he is also called the managing owner. 

§ 2071. Unless otherwise directed, it is the duty of thf 
wianager of a ship to provide for the complete seaworthineai 
•f a ship ; to take care of it in port ; to see that it is pcovidtd 



193 SEKvicB. §§ 2072-2079 

with neceasarj papers, with a proper master, mate, and crew 
•Jid supplies of provisions and stores. 

^ 2072. A managing owner is presumed to have no righi 
In compensation for his own services. 



CHAPTER IIL 
SERVICE WITHOUT EMPLOYMENT. 

Skction 2078. Yoluntaxy interference with propertj. 
2079. Salvage. 

§ 2078. One who officiously, and without the consent of 
the real or apparent owner of a thing, takes it into his posses- 
sion for the purpose of rendering a service about it, must com- 
plete such service, and use ordinary care, diligence, and rea- 
sonable skill about the same. He is not entitled to any com- 
pensation for his service or expenses, except that he may de- 
duct 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. 

§ 2079. Any person, other than the master, mate, or a 
seaman thereof, who rescues a ship, her«appurtenance8, or 
cargo, from danger, is entitled to a reasonable compensation 
therefor, to be paid out of the property saved. He has a lien 
for such claim, which is regulated by the Title on Liens ; but no 
claim for salvage, as such, can accrue against any vessel, or 
her freight, or cargo, in favor of the owners, officers, or crew 
of another vessel belonging to the same owners ; but the actual 
cost at the time of the services rendered by one such vessel to 
another, when in distress, are payable through a general ave^ 
Bge contribution on the property saved. [In ^ect July 1 
874.] 



,y Google 



is 2086-2090 Carbiaob. 

TITLE VII. 
CARRIAGE. 

Chapter T. Carriage in General §§ 2085-2090. 
II. Carriage op Persons, §§ 2100-2104. 

III. Carriage op Property, |§ 2110-2155. 

IV. Carriage op Messages, | 2161. 
V. Common Caurieks, §§ 2168-2209. 



CUAPTER I. 
CABBIAGB IN QENEBAL. 

Bionoy 2085. Contract of carriage. 

2086. Different kinds of carriers. 

2087. Marine and inland carriers, what. 

2088. Carriers by sea. 

2089. Obligations of gratuitous carriers. 

2090. Obligations of gratuitous carrier who has begun to eurj 

§ 2085. The contract of carriage is a contract for the con- 
veyance of property, persons, or messages, from one place to 
unother. 

Owner is liable for acts of drirer Pol. Code, § 2dS6. 

§ 2086. Carriage is either: 

1. Inland ; or, 

2. Marine. 

§ 2087. Carriers upon the ocean and npon arms of thf 
lea are marine carriers. All others are inland carriers. 

§ 2088. Rights and duties peculiar to carriers hy sea aif 
iefined by acts of Congres.s. 

§ 2089. Carriers without reward are subject to the samt 
rules as employees without reward, except so far as is othes 
vise provided by this title. 

S 2090. A carrier without reward,Df49Lha^ begun to pu 



195 OASBIAOB. K 2096-2 10& 

form his nndertaking, mast complete it In tike manner at if 
he had received a reward, nnless he restores the person or 
thing carried to as favorable a position as before be oom- 
mence(i the carriage. 



CHAPTER n. 
CABBIAQB OF PBBSONS. 

Asnou I. GRATUiToirs Carhzaab, § 9006. 

U. CAauAM roa Rxwasa, H 2100-210A 

ARTICLE I. 

OBATUITOUB OABRIAaX OF PBRSONS. 

Sbction 2096. Degree of care required. 

§ 2096. A carrier of persons without reward most ose or 
dinarj caire and diligence for their safe carriage. 

ARTICLE U. 

OAKBIAGB rOB RBWABD. 

SMnoir 2100. Ounenl dtttiee of carrier. 

2101. Vehicles. 

2102. Not to oTerlood his Tehicle. 

2103. Treatment of paasengera. 

2104. Bate of speed and delays. 

§ 2100. A carrier of persons for reward must use the ut- 
most care and diligence for their safe carriage, must provide 
Fveiythinc? necessary for that purpose, and must exercise to 
that end a reasonable degree of skill. 

§ 2101. A carrier of persons for reward is bound to pro- 
riile vehicles safe and fit for the purposes to which thej are 
put, and is not excused for default in this respect bj anj de> 
^e of care. 

§ 2102. A carrier of persons for reward must not over 
trowd or overload his vehicle. Pr-ioalf> 

uigitized by VJWVJVIC 



§§2103-2110 OAKEIAOB. 296 

§ 2103. A carrier of persons for reward must give to pas< 
sengera all such accommodations as are usual and reasonable, 
aind must treat them with civility, and give them a reasonable 
degree of attention. 

§ 2104. A carrier of persons for reward must travel at a 
reasonable rate of speed, and without anj unreasonable delay, 
or deviation from his proper route. 



CHAPTER III. 
OARBIAGB OF PROPERTY. 

llXIOU I. OKNX&AL DKFnOTIONS, $ 2110. 

II. Obligations op the Ca&rikr, ft§ 2114-219. 

III. Bill op Lading, §| 2126-2132. 

IV. F&BiouTAOK, §§ 2186-2144. 

y. GXNK&AL AVXRAQX, §§ 2148-2166 

ARTICLE I. 

GENERAL DEFINITIONS. 

SionoN 3110. Freight, eonslgiior, &e., what, 

§ 2110. Property carried is called freight; the reward, if 
any, to be paid tor its carriage is called freightage ; the person 
who delivers the freight to the carrier is called the consignor ; 
and the person to whom it is to be delivered is called the con- 
signee. 

ARTICLE IL 

OBLIGATIONS OF THE CARSIBB. 

lionON 2114. Care and diligence required of caniert. 

2115. Carrier to obey directions. 

2116. Conflict of orders. 

2117. Stowage, deyiation, &c. 

2118. Delivery of freight. 
2119 Place of delivery. 

2120. Obligations of oarrier when freight is not deUvwvd lo 9tm 

signee. 
1121. How carrier may terminate his liability. 
SIS. Whan consignee cannot be found. (BepeaML) 



197 CARRIAOB. §§ 2114-2120 

% 
§ 2114. A earner of property for reward must use at 
teast ordinary care and dUigence in the performance of all his 
dnties. A carrier without reward most use at least slight care 
and diligence. 

§ 2115. A carrier must comply with the directions of the 
consignor or consignee to the same extent that an employee is 
bound to comply with those of his employer. 

§ 2116. When the directions of a consignor and consignee 
arc conflicting, the carrier must comply with those of the con- 
■Igiior in respect to all matters except the delivery of the 
freight, as to which he must comply with the directions of the 
consignee, unless the consignor has specially forbidden the car- 
rier to receive orders from the consignee inconsistent with his 
own. 

§ 21 17. A marine carrier must not stow freight upon deck 
during the voyage, except where it is usual to do so, nor make 
any improper deviation from or delay in the voyage, nor do 
any other unnecessary act which would avoid an insurance in 
the usual form upon the freight. 

§ 2118. A carrier of property must deliver it to the con- 
signee, at the place to which it is addressed, in the manner 
usual at that place. 

§ 2119. If there is no usage to the contrary at the place 
of delivery, freight must be delivered as follows : 

1. If carried upon a railway owned or managed by the car- 
Tier, it may be delivered at the station nearest to the place to 
which it is addressed ; 

2. If carried by sea from a foreign country, it may be de- 
livered at the wharf where the sliip moors, within a reasonable 
distance from the place of address ; or, if there is no wharf, 
on board a lighter alongside the ship ; or, 

3. In other cases, it must be delivered to the consignee or 
his agent, personally, if either can, with reasonable diligence, 
be found. 

§ 2120. If, for any reason, a carrier does not deliver 
freight to the consignee or his agent personally, he must give 
notice to the consignee of its ariival, and keep the same in 
lafety upc,^ his '^ponsibility as a warehouseman, until the 



{$2121-2128 GABRIAGB. 291 

# 
consignee has had a reasonable time to remove it If the 
place of residence or business of the consiiinee be unknown 
to the carrier, he may give the notice by letter dropped in the 
nearest post office. [In effect July 1, 1874. J 

56 Cal. 484. 

§ 2121. If a consignee does not accept and remove freight 
within a reasonable time after the carrier has fultiiled his obli- 
gation to deliver, or duly offered to fulfil the same, the car- 
rier may exonerate himself from further liability by placiug 
the freight in a suitable warehouse, on storage, on account ol 
the consignee, and giving notice thereof to him. [In effect 
July 1, 1874.] 

§ 2122 of said Code is repealed. [In efiect Jiily 1, 1874.* 



ARTICLE in. 

BILL OF LADING. 

toonov 2126. Bill of lading, what. 

2127. Bill of lading negotiable. 

2128. Same. 

2129. Efifect of bill of lading on rights, &e., of 

2180. Bills of lading to be ^ven to comsignor. 

2181. Carrier exonerated by delivery according to bill of ladinc 
8182. Carrier may demand surrender of bill of lading beforediP* 

livery 

§ 2 1 26. A bill of lading is an instrument in writing, 
■igned bv a carrier or his agent, describing the freight so as 
to identify it, stating the name of the consignor, the terms of 
the contract for carriage, and agreeing or directing that thtt 
freight be delivered to the order or assigns of a specified per- 
son at a specified place. 

Issuing Fictitious Bill of Lading. Penal Code, $ 577. 

§ 2127. All the title to the freight which the first holder 
of a bill of lading had when he received it, passes to every 
Bubsequent indorsee thereof in good faith and for value, in th< 
ordinary course of business, with like effect and in like man* 
ner as in the case of a bill of exchange. 

Delivery without cancelling receipt a penal offenee. Fenal Oodt 
', 682. 

I 2128. When a biU of lading is made to "bw!er,''Qt 



299 CA&RiAOX. §§2129-2137 

In equivalent terms, a simple transfer thereof, by deUyeiy, 
tonvejs the same tide as an indorsement. 

§ 2129. A bill of lading does not^ alter the rights or ob- 
ligations of the carrier, as defined in this chapter, unless it if 
plainly inconsistent therewith. 

§ 2180. A carrier must subscribe and deliver to the con- 
signor, on demand) any reasonable number of bills of lading, 
of the same tenor, expressing truly the original contract for 
carriage ; and if he renises to do so, the consignor may take 
the freight from him, and recover from him, brides, all daui- 
•ge thereby occasioned. 

Duplicate receipts must be marked " duplicate.*' Feual Code § 680. 

§ 2131. A carrier is exonerated from liability for freight 
by delivery thereof, in good faith, to any holder of a bill of 
lading therefor, properly indorsed, or made in fovor of the 
bearer. 

§ 2132. When a carrier has given a bill of lading, or other 
instrument substantially equivalent thereto, he may require itv 
surrender. Or a reasonable indemnity against claims tnereon, 
before delivering the freight. 



ARTICLE IV. 

FBEIGHTAOB. 

iBonOK 2188. When freightage is to be paid. 

2187. Consignor, when liable for freightaf* 

2188. Consignee when liable. 

2189. Natural increase of freight. 

2140. Apportionment by contract 

2141. Same. 

2142. Apportionment according to distanee. 
2U8. Freight carried further than agreed, At 
2144. Carrier's lien for freightage 

§ 2136. A carrier may require his freightage to be paid 
opon his receiving the freight ; but if he does not demand it 
Oien, he cannot until he is ready to deliver the freight to the 
aonsignee. 



I 2137. The consignor of freight is prUiiMiib'aiid^ liable 



{§2138-2144 CABiiAOB. 800 

for the freightage, but if the contract between him amd the 
carrier provides that the consignee shall pay it, and the car- 
rier allows the consignee to take the freight, he cannot after- 
urards recover the freightage from the consignor, 

§ 2138, The consignee of freight is liable for the freight- 
age, if he accepts the freight with notice of the intention ol 
the consignor that he should pay it. 

§ 2139. No freightage can be charged npon the natinl 
increase of freight. 

§ 2140, If freightage is apportioned by a bill of lading or 
other contract made between a consignor and carrier, the car- 
rier is entitled to payment, according to the apportionment, 
for so much as he delivers. 

§ 2141. If a part of the freight is accepted by a coii- 
signee, withont a specific objection that the rest is not deliv- 
ered, the freightage must be apportioned and paid as to that 
part, though not apportioned in the original contract. 

§ 2142. If a consignee voluntarily receives freight at a 
place short of the one appointed for delivery, the carrier is en- 
titled to a just proportion of the freightage, according to dis- 
tance. If the carrier, being ready and willing, offers to com- 
plete the transit, he is entitled to the full freightage. If he 
does not thus offer completion, and the consignee receives the 
freight only from necessity, the carrier is not entitled to any 
freightage. 

§ 2143. If freight is carried further, or i^ore expedi 
tiously, than was agreed upon by the parties, the carrier is nol 
entitled to additional compensation, and cannot refuse to d» 
Bver it, on the demand of tne consignee, at the place and tim« 
tff its arrival. 

§ 2144. A carrier has a lien for freightage, which is reg 
llated by the Title on Liens. 



,y Google 



Ml OAKRiAOB. §§ 2148 -2168 

ARTICLE V. 

GENERAL AYERAOB. 

Sionon 2148. Jettison and general aTenge, what. 
2149. Order of jettison. 
2160. By whom made. 

2151. LoM, how borne. 

2152. General average lom, how adjusted. 

2153. Values, how ascertained. 

2154. Things stowed on deck. 

2155. Application of the forq^ing rules 

§ 2148. A carrier by water may, when in case of extreme 
peril it 18 necessary for the safety of the ship or cargo, throw 
overboard, or otherwise sacrifice, any or all the cargo or ap- 
purtenances of the ship. Throwing property overboard for 
Buch purpose is called jettison, and the loss incurred thereby 
is called a general average loss. 

§ 2149. A jettison must begin with the most bulky and 
least valuable articles, so far as possible. 

§ 2150. A jettison can be made only bj authority of the 
master of a ship, except in case of his disability, or of an 
overruling necessity, when it may be made by any other per- 
son. 

§ 2161. The loss incurred by a jettison, when lawfully 
made, must be borne in due proportion by all ^at part of the 
ship, appurtenances, freightage, and cargo for the benefit oi 
which the sacrifice is made, as well as by the owner of the 
thing sacrificed. 

§ 2152. The proportions in which a general average loss 
is to be borne must be ascertained b^ an adjustment, in which 
the owner of each separate interest is to be charged with such 
proportion of the value of the thing lost as the value of his 
part of the property affected bears to the value of the whole. 
But an adjustment made at the end of the voyage, if valid 
kheie, is valid everywhere. 

§ 2153. In estimating values for the purpose of a gcnei'a? 
arera^e, the ship and appurtenances must be valued as at the 
■nd of the voyage, the freightage at one half the amount da« 
20 



§§ 2164-2162 OASRiAOB. MS 

on deliverj, and the cargo as at the time and place of its dk- 
charge ; aidding, in each case, the amount made good hj can* 
trihution. 

§ 2164. The owner of things stowed on deck, in case of 
their jettison, is entitled to the benefit of a general average 
contribution only in case it ia usual to stow such things on 
deck upon such a voyage. 

§ 2155. The rules herein stated concerning jettison an 
equally applicable to every other voluntary sacrifice of prop^ 
erty on a ship, or expense necessarily incurred, for the preser* 
vation of the ship and cargo from extraordinary perils. 

CHAPTER IV. 
CABBIAGB OF MESSAQBS. 

BxonoK 2161. ObligationB of carrier of messagM. 

2162. Degree of care and diligence required. 

§ 2161. A carrier of messages for reward, other than by 
telegraph, must deliver them at the place to which they are 
addressed, or to the person for whom they are intended. Such 
carrier, by telegraph, must deliver them at such place and to 
such person, provided the place of address, or the person for 
whom they are intended, is within a distance of two miles 
from the main office of the carrier in the city or town to which 
the messages are transmitted, and the carrier is not required, 
in making the delivery, to pay on his route toll or ferriage ; 
but for any distance beyond one mile from such oflSce, com- 
pensation may be charged for a messenger employed by th« 
carrier, fin effect July 1, 1874.] 

Penal Code, $ 688. 

§ 2162. A carrier of messages for reward must use great 
eare and diligence in the transmission and delivery of 
lages. [In effect July 1, 1874.] 

CHAPTER V. 
COMMON CABBIEBS. 

Aaiin.1 I. Common Carriers in Gknkral, §§ 2168-2177. 
II. Common Carribrs op Persons, §§ 2180-2191 

III. Common Carriers op Property, I§ 2194-2aMj|e 

IV. COMMON Carrier* op MEssAeEs, J J 2201-^309? 



IQ8 CARBIAGB. §§ 2168-2172 

ARTICLE I. 

COMMON CASRIBKS IN OBlTBBAIi. 

iMTlOir 2168. (Jornmon carrier, what. 

2169. Obligatioii to accept freight. 

2170. Obligation not to give preferenne. 

2171. What preferences he muat give. 

2172. Starting. 

2173. Compensation. 

2174. Obligations of carrier altered only by a(Nem«iil. 

2175. Certain agreements void. 

2176. Effect of written contract. 

2177. When not liable for loss. 

§ 2168. Every one who offers to the public to carry pe^' 
Bons, property, or messages, excepting only telegraphic mes* 
■ages, is a common carrier of whatever he thus omn to carry. 
[In effect July 1, 1874.] 

Polit. Code, $ 2988 ; Penal Code, $ 866. 

§ 2169. A common carrier must, if able to do so, accept 
a^d carry whatever is offered to him, at a reasonable time and 
place, of a kind tliat he undertakes or is accustomed to carry. 

§ 2170, A common carrier must not give preference, in 
time, price, or otherwise, to one person over another. Every 
common carrier of passengers by railroad, or by vessel plying 
upon waters lyin;; wholly within this State, shall establish a 
schedule time for the starting of trains or vessels from their 
respective stations or wharves, of which public notice shfUl be 
given, and shall, weather permitting, except in case of acci- 
dent or detention caused by connecting lines, start their said 
trains or vessels at or within ten minutes after the schedulo 
time so established and notice given, under a penalty of two 
hundred and fifty dollars for each neglect 99 to do, to be re- 
covered by action before any court of competent jurisdiction, 
upon complaint filed by the district attorney of the county in 
the name of the people, and paid into the common school rand 
td the said county. [In effect April 2, 1880.] 

§ 2171. A common carrier must always give a preference 
In time, and may give a preference in price, to the United 
States and to this State. 

§ 2172. A common carrier must start fOpnLch time and 

• ■ iJigitized by VjVJt. 



f§ 2173-2177 OAEBiAoii. 304 

place as he annonnoes to the pnhlic, unless detained hy acci- 
deut or the elements, or in order to connect with carriers on 
other lines of travel. [In effect July 1, 1874.] 

§ 2173. A common carrier is entitled to a reasonable 
compensation and no more, which he maj require to be paid 
in advance. If payment thetaof is refused, he may refuse to 
carry. 

§ 2174, The obligations of a common carrier cannot be 
limited by general notice on his part, but may be limited by 
special contract. [In effect July 1, 1874.] 

§ 2175, A common carrier cannot be exonerated, by any 
a<;reement made in anticipation thereof, ftom liability for the 
gross negligence, fraud, or wilful wrong of himself or his ser- 
vants. 

§ 2176. A passenger, consignor, or consignee, by accept- 
ing a ticket, bill of lading, or written contract for carriage, 
with a knowledge of its terms, assents to the rate of hire, the 
time, place, and manner of delivery therein stated ; and also 
to the limitation stated therein upon the amount of the car- 
rier s liability in case property carried in packages, trunks, or 
\)Oxes, is lost or injured, when the value of such property is 
not named ; and also to the limitation stated therein to the 
carrier's liability for loss or injury to live animals carried. 
But his assent to any other modification of the carrier's obli- 
gations contained in such instrument can be manifested only 
by his signature to the same. [In effect July 1, 1874.] 

§ 2177. A common carrier is not responsible for loss or 
miscarriage of a letter, or package having the form of a letter, 
eontaining money or notes, bills of exchange, or other papen 
9f value, unless he be informed at the time of its receipt mI the 
ralue of its contents. [In effect July 1, 1874.] 



ARTICLE II. 

COMMON CABBIBR8 OF PERSOHt. 

2180. Obligation to carry Inggags. 

2181. Luggage, what. 

2182. LiabUity for luggagfg,,e,byGoOgle 



08 CASBIAGB. §§ 2 180-2 ISA 

flionoK 21S3. Laggage, how carried ftnd deliTwed. 

2184. Obligation to proride Tbhiolw. 

2185. Seats lor passengers. 

2186. R^ulatioos for conduct of business. 

2187. Fare, wheu payable. 

2188. Ejection of passengers. 

2189. Passenger who has not paid fare. 

2190. Vare not payable after ejeetion. 

2191. Carrier's lien. 

§ 2180. A common carrier of persons, unless his vehicle 
Is fitted for the reception of persons exclusively, must receive 
and carry a reasonable amount of higgajje for each passenger 
without charge, except for an excess of weight over one hun- 
dred pounds to a passenger : provided, that if such carrier be 
a proprietor of a stage line, he may not receive and carry for 
each passenger by such stage line, without charge, more than 
rixty pounds of luggage. [In effect May 8, 1878.] 

v^ § 2181. Luggage may consist of any articlea intended fox 
^^ the use of a passenger while travelling, or for his personal 
/ equipment. 

^^ § 2182. The liability of a carrier for luggage received by 
him with a passenger is the same as that of a common carrier 
of property. 

§ 2183. A common carrier mnst deliver every passenger's 
luggage, whether within the prescribed weight or not, imme- 
diately upon the arrival of the passenger at his destination; 
and, unless the vehicle would he overcrowded or overloaded 
thereby, must carrv it on the same vehicle by which he carries 
ihe passenger to whom it belonged, except that where luggage 
18 transported by rail, it must be checkea and carried in a reg- 
ular baggage car ; and whenever passengers neglect or refuse 
to have thi.'ir luggage so checked and transported, it is carried 
at their risk. [In effect July 1, 1874.] 

§ 2184. A common carrier of persons must provide a suffi- 
ce vut number of vehicles to accommodate all the passengen 
who can be reasonably expected to require carriage at any one 
time. 

§ 2185. A common carrier of persons must provide every 
oassenger with a scat. He must not overload his vehicle by 
Ittceiving and carrying more passengers than its rated capaei^ 
lUows. 



|§ 2186-2194 CABsiAOB. 801 

§ 2186. A common carrier of persons may make rules for 
Ihe conduct of his business, and maj re^nire passengers to 
conform to them, if they are lawful, pubhc, uniform in theif 
application, and reasonable. 

§ 2187. A common carrier maj demand the fare of pas- 
sengers, either at starting or at any subsequent time. 

§ 2188. A passenger who refuses to pay his fare or to 
conform to any lawful regulation of the carrier, may be 
ejected from the yehicle by the carrier. But this must be 
done with as little violence as possible, and at any usual stop- 
ping place or near some dwelling-house. 

§ 2189. A passenger upon a railroad train who has not 
paid his fare befora entering the train, if he has been afforded 
an op]x>rtunity to do so, must, upon demand, pay ten per $Bmt, 
in addition to the regular rate. 

> 

§ 2190. After having ejected a passenger, a carrier has no 
right to require the payment of any part of his fistre. 

§ 2191. A common carrier has a lien upon the lugpage ai 
a passenger for the payment of such fare as he is entitled to 
from him. This lien is regulated by the Title on Liens. 

Fttialty fot orexcharges. Fenal Code, § 626. 



ARTICLE m. 

COMMON CARRIEBS OF PSOPBBTT. 

Iwi ON 2194. Liabilitj of inland carriers for Ion 
2196. When exemptions do not apply. 

2196. Liability for delay. 

2197. Liability of marine oarriezs 

2198. Same. 

2199. Perils of sea. what. 

2200. Consignor of yaluables to declare their natoss 

2201. Delivery of freight beyond usnal route. 

2202. Proof to be given in case of loss. 

220B. Carrier's services, other than carriage and dellrezy 
2204. Sale of perishable property for freight. 

§ 2194. Unless the consignor accompanies the freight and 
letains exclusive control thereof, an inland common carrier o 
Property is liable, from the time that ht wcepts until Im itt 



107 OABBiAOB. §§ 2195-2200 

Heres himself firom liability pursuant to sections 2118 to 2122, 
for the loss or injnrj thereof from any cause whatever, ex 
cept: 

1 . An inherent defect, vice, or weakness, or a spontaneous 
ftction, of the property itself ; 

2. The act of a public enemy of the United States, or of thii 
State ; 

3. The act of the law; or, 

4. Any irresistible superhnman cause. 

§ 2196. A common carrier is liable, even in the cases ex- 
cepted by the last section, if his ordinary negligence exposes 
the property to the cause of the loss. 

§ 2196. A common carrier is liable for dela^ only when 
It is caused by his want of ordinary care and diligence. [In 
etfect Jaly 1, 1874.] 

§ 2197. A marine carrier is liable in like manner as an 
Inland carrier, except for loss or injury caused by the perils of 
the sea or fire. 

§ 2198. The liability of a common carrier by sea is ftiz 
Cher regulated by acts of Congress. 

§ 2199. Perils of the sea are from: 

1 . Storms and waves ; 

2. Rocks, shoals, and rapids ; 

8. Other obstacles, though of human origin ; 

4. Changes of climate ; 

5. The confinement necessary at sea ; 

6. Animals peculiar to the sea ; and, 

7. All other dangers peculiar to the sea. 

§ 2200. A common carrier of gold, silver, platina, or pre- 
<nous stones, or of imitations thereof, in a manufactured )r 
Vimanufactured state; of timepieces of any description; of 
uegotiable paper or other valuable writings ; of pictures, glass, 
or chinaware ; of statuary, silk, or laces ; or 3f plated ware of 
^Dj kind, is not liable fur more than fifty dollars upon the loss 
>r injury of any one package of such articies, unless he has 
notice, upon his receipt thereof, by mark upon the package or 
itherwise, of the natui-e of the freight ; nor^s such carrier lia- 
fle upon any package carried for more than the value of the 



K 2201-2207 OARBiAOB. a06 

articles named in the receipt or the bill of lading. [In rfiect 
July 1, 1874.] 

§ 2201. If a common carrier accepts freight for a plac« 
beyond his usaal route, he must, unless he stipulates other- 
wise, deliver it at the end of his route in that direction to 
some otlier competent carrier carrying to the place of address, 
or connected with those who tlius carry, and his liability 
ceases upon making such delivery. 

§ 2202. If freight addressed to a place beyond the usnal 
ronte of the common carrier who firet received it is lost or in- 
jured, he must, within a reasonable time after demand, give 
satisfactory proof to the consij2:nor that the loss or injury did 
not occur while it was in his charge, or he wUl be himaelf Lia- 
ble therefor. 

§ 2203. In respect to any service rendered by a common 
carrier about freight, other than its carriage and delivery, his 
ritrhts and obligations are defined by the Titles on Deposit and 
Service. 

§ 2204. If, from any cause other than want of oiniinary 
care and diligence on his part, a common carrier is unable to 
deliver perishable property transported by him, and collect 
his charges thereon, he may cause the property to be sold in 
open market, to satisfy his lien for freightage. [In e£fect 
July 1, 1874.] 

Penalty for overehaigM, Penal Code, § 525. 



ARTICLE IV. 

COMMON CARRIERS OF MESSAGES. 

Bbction 2207. Order of transTniKnoii of telegraphic meMages. 

2208. Order in other cases. 

2209. Damages when message is refused or postponed 

§ 2207. A carrier of messages by telegraph must, if it ii 
\^acticable, transmit every such message immediately upon 
"ts receipt. But if this is not practicable, and several mes* 
(Ages accumulate upon his hands, he must transmit them ii 
Ihe following order : 

1 . Mc-ssageB from public agents of the United States or o 
tiiia State, ou public ousiucss ; 

Digitized by VjOOQIC 



909 TBU8T. §§ 2208-2209 

2. Messages intended in good faith for immediate pnblica 
lion in newspapers, and not for any secret use ; 

3. Messages giving information relating to the aicknefls or 
death of any person ; 

4. Other messages in the order in which they were received 
Penal Code, $ 68& 

§ 2208. A common carrier of messages, otherwise than by 
telegraph, mast transmit messages in the order in which he 
receives them, except messages from agents of the United 
States or of this State, on public bosiness, to which he must 
always give priority. But he may fix upon certain times for 
She simultaneous transmission of messages previously received. 

§ 2209. Every person whose message is refused or post- 
poned, contrary to the provisions of this chapter, is entitled to 
recover from the carrier his actual damages, and fifty dollan 
in addition thereto. 



TITLE VIIL 
TRUST. 



Chapteb I. Trusts in Gbnebal, §§ 2215-9244. 

II. Trusts for thje Benefit of Third PsBaoirii if 
2250-2289. 



CHAPTER L 

TRUSTS IN GENBRAIi. 

ftanou I. NATum and Cuation op a TrvstjU 2215-22H 
II. Obuoations op TansTSES, §§ 2228-2Z&. 
III. Obugatioms op Thiu) Pkesoms, }§ 2248-22M. 

ARTICLE I. 

MATURE AND CREATION OF A TKUtT. 

toonOH 2215. Truatfl clamifled. 

2216. Voluntary trust, what. 

S2I7. Involuntary trust, ^*"»t^oOQle 



If 2215-2222 trust. SIC 

iKmoir 2218. Parties to the contract. 

2219. What constitutes one a trustee. 

2220. For what purpose a trust maj be created. 

2221. Voluntary trust, how created as to trustor. 

2222. IIow created as to trustee. 

2223. Inyoluntary trustee, who is. 

2224. Involuutar j trust resulting from negUgWkoe, A«. 

§ 2216. A trust is either : 

1. Voluntary; or, 

2. Involuntary. 

§ 2216. A voluntary trust is an oblij^ation arising oat of 
a personal confidence reposed in, and voluntarily accepted by, 
one for the benefit of another. 

§ 2217. An involuntary trust is one which is created by 
operation of law. 

§ 2218. The person whose confidence creates a trust is 
called the trustor ; the person in whom the confidence is re- 
posed is called the trustee ; and the person for whose benefit 
the trust is created is called the beneficiary. 

§ 2219. Every one who voluntarily assumes a relation of 
personal confidence with another is deemed a trustee, within 
the meaning of this chapter, not only as to the person who re- 
poses such confidence, but siso as to all persons of whose aflfaii-s 
he thus acquires information which was given to such person 
in the like confidence, or over whose affairs he, by such confi- 
dence, obtains any control. 

§ 2220. A trast may be created for any purpose for which 
a contract may lawfully be made, except as otherwise pre- 
» ribed by the Titles on Uses and Trusts and on Transfers. 

§ 2221. Subject to the provisions of section 852, a yolnn- 
i\ry trust is created, as to the tinistor and beneficiary, by any 
words or acts of the trustor, indicating with reasonable cer 
tainty . 

1. An intention on the part of the trustor to create h trust 
md, 

2. The subject, purpose, and beneficiary of the trust. 
68 Cal. 483. "^ 

§ 2222. Subject to the provisions of section 852, a Tohm 
tory trust is created, as to the trustee, by any words or acts ol 
*•• indicating, with reasonable certainty'* 



ill TRUST. §§2223-2230 

1. His acceptance of the trust, or his acknowledcTnent, made 
npon sufficient consideration, of its existence ; and, 

2. The subject, purpose, and beneficiary of the trust. 

§ 2223. One who wrongfully detains a thing is an inyol« 
nntary tnistee thereof, for the benefit of the owner. 

§ 2224. One who siains a thing by fraud, accident, mis- 
take, undue influence, the violation of a trust, or other wrong- 
fill act, is, unless he has some other and better right thereto, 
an involuntary trustee of the thing gained, for the benefit of 
the person who would otherwise have had it. 
58 Cal. 116, 62L 

ARTICLE 11. 

OBLIGATIONS OF TRUSTEBS. 

Bmtioh 2228. Trustee-s obligation to good faith. 

2229. Trustee not to use property for his own profit. 

2230. Certain transactions forbidden. 

2231. Tru8tee-8 influence not to be used for his advantagv. 

2232. Trustee not to assume a trust adverse to Interest of beacA 

ciary. 
2238. To dificlose adverse interest. 
2234. Trustee guilty of fraud, when. 
2236. Presumption against trustees. 

2236. Trustee mingling trust property with his own. 

2237. Measure of liabUity for breach of trust. 

2238. Same. 

2239. Co-trustees, how far liable for each other. 

§ 2228. In all matters connected with his trust, a trustee 
is bound to act in the highest good faith toward his beneficiary, 
and may not obtain any advantage therein over the latter by 
the slightest misrepresentation, concealment, threat, or ad- 
verse pressure of any kind. 

23^ § 2229. A trustee may not use or deal with the trust 

1^*181 property for his own profit, or for any other purpose uncop 
aected with the trust, in any manner. 

§ 2230. Neither a trustee nor any of his agents may take 
part in any transaction concerning the trust m which he or 
Any one for whom he acts as aj^ent has an interest, present oi 
sontingeDt, adverse to that of his beneficiary, except aa folf 

Digitized by VjOOQIC 



{§ 2231-2237 tbust. 311 

1 . When the beneiiciarj, having capadty to contract, witl 
a full knowledge of the motives of the trustee, and of all othei 
facts concern iu^ the transaction which might affect his owi 
decision, and without the use of any influence on the part of 
the triihtee, permits him to do so ; 

2. When the beneficiary not having capacity to contract 
the proper court, u}x>n the like information of the facts, granti 
the like permission ; or, 

3. When some of the beneficiaries having capacitv to con- 
tract, and some not having it, the former grant permission for 
themselves, and the proper court for the latter, m the manner 
above prcHcribed. 

64 Cal. 106. 

§ 2231. A trustee may not use the influence which hii 
position gives him to obtain any advantage from his benefi- 
ciary. 

§ 2232. No trustee, so long as he remains in the trust, 
may undertake another trust adverse in its nature to the in- 
terest of his beneficiary in the subject of the trust, without the 
consent of the latter. 

§ 2233. If a trustee acquires any interest, or becomes 
charged with any dutv, adverse to the interest of his benefi- 
ciary in the subject of the trust, he must immediately inform 
the latter thereof, and may be at once removed. 

§ 2234. Every violation of the provisions of the preceding 
sections of this aiticle is a fraud against the beneficiary of the 
trust. 

62 Cal. 406. 

§ 2236. All transactions between a trustee and his benefi- 
ciary dunng the existence of the trust, or while the influence 
Eoquired by the trustee remains, by which he obtains any ad 
^anta£:e from his beneficiary, are presumed to \>e entered into 
by the latter without sufiBcient consideration, and under undue 
influence. 

§ 2236. A trustee who wilfully and unnecessarily minglei 
the trust property with his own, so as to constitute hinii^elF in 
appearance its absolute owner, is liable for its safety in al 
•vents. 

(2237. A trustee who uses or disposes of tfae^tzust 

Oigitizedby VjOL 



SIS TB1TST. !§ 2238-2244 

BTty, contrary to section 2229, may, at the option of the bene- 
ficiary, be required to account for all profits so made, or to pay 
the value of its use, and, if he has disposed thereof, to re- 
place it, with its fruits, or to account for its proceeds, with 
interest. 

§ 2288. A trustee who uses or disposes of the trust prop- 
erty in any manner not authorized by the trunt, but in ^ood 
faHh, and with intent to serve the interests of the beneficiary, 
is liable only to make good whatever is lost to the beneiiciary 
hj his error. 

§ 2289. A trustee is responsible for the wrongful acts of 
a co-trustee to which he consented, or which, by his uegligenoe, 
he enabled the latter to commit, but for no others. 



ARTICLE m. 

OBLIGATIONS OF THIRD PERSONS. 

Bacnov 2348. Third person, when involuntary trustee. 

2244. When third person must see to application of trust prop 
erty. 

§ 2243. Every one to whom property is transferred in 
violation of a trust, holds the same as an involuntary trustee 
under such trust, unless he purchased it in good faith, and for 
a valuable consideration. 

§ 2244. One who actually and in good faith transfers any 
money or other property to a trustee, as such, is not bound to 
iee 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. 



,y Google 



If 2260-2264 tbust* 314 

CHAPTER n. 
TRUSTS' FOR THE BENEFIT OF THIRD PERSONS 

AmoLB I. Naturi and Cbbatioit of thi Trust, ^§ 2250-2264. 

II. Obligations or Trustkks, §§ 2268-22^8. 
in. PowRRS or Trustees, §§ 2264-2269. 
IV. Rights or Trustees, §§ 2273-2275. 

V. Termination or the Trust, §§ 227^2288. 

VI. Succession or Appointment or New Trustkis, S§ 2287-2S89 

ARTICLE I. 

NATURE AND CREATION OF THE TBUST. 

BionoN 2260. Who fire trustees within scope of this chRpter. 

2261. Creation of trust. 

2262. Trustees appointed by court. 
2258. Declaration of trust. 

2254. Same. 

§ 2260. The provisions of this chapter apply only to ex- 
press trusts, created for the benefit of another than the trustor, 
and in which the title to the trust property is vested in the 
trustee ; not including, however, those of executors, adminiB- 
tcators, and guardians, as such. 

§ 2261. The mutual consent of a trustor and trustee cre- 
ates a trust of which the beneficiary may take advantage al 
any time prior to its rescission. 

§ 2262- When a trustee is appointed by a court or public 
officer, as such, such court or officer is the trustor, withm th« 
meaning of the last section. 

§ 2268. The nature, extent, and object of a trust are ex 
pressed in the declaration of trust. 

§ 2264. All declarations of a trustor to his trustees, in r» 
lation to the trust, before its acceptance by the trustees, oi 
hnj of them, are to be deemed pai^ of the declaration of the 
trust, except that when a declaration of trust is made in writ- 
big, all previous declarations by the same trustor are merged 
therein. digitized by Google 



124 573 



IIS TBUST. §§ 2268-2268 

ARTICLE II. 

OBLIGATIONS OF TBU8TBB9. 

Ibctioii 2258. Trnstcefl must obey declaration of tnuit. 

2259. Degree of care and diligence in execution of tnut. 

2260. Duty of trufitee an to appointment of sucoeflsor. 
22tt. Investment of money by trustee. 

2262 Interest, simple or compound, on omission to Inreft tm t 

moneys. 
2263. Purchase by trustee of claims against trust fund. 

§ 2258. A trustee must fulfil the purpose of the trnst, m 
declared at its creation, and must follow all the directions of 
the trustor given at that time, except as modified by the con- 
■ent of all parties interested, in the same manner, and to the 
■ame extent, as an employee. 

§ 2259. A trustee, whether he receires any compensation 
or not, must use at least ordinary care and diligence in the 
execution of his trust. 

§ 2260. 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 dili«;ence to secure the appoinu 
Qient of a trustworthy successor before accepting his own final 
discharge. 

§ 2261. A trustee must invest money received by him 
under the trust, as fast as he collects a sufficient amount, in 
such manner as to afford reasonable security and interest for 
the same. 

§ 2262. If a trustee omits to invest the trust moneys ao 
cordin;^ to the last section, he must pay simple interest there- 
on, if such omission is negligent merely, and compound inter- 
est If it is wilfuL 

§ 2268. 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 
eompetent court, to charge to the trust property what he has 
ti good faith paid for the claim, upou discharging the same. 



,y Google 



IS 2267--2274 niriT. BU 

ARTICLE m. 

POW1BUS OF TBU8TBBS. 

BionOli 2267. Tni«tee*s powers at agent 
2268. Allmiutact. 
2209. Disoretionftry powers. 

S 2267. A trustee is a general agent for the trnst proiN 
»rty. His authority is such as is conferred upon him hy tne 
declaration of trust and hy this chapter, and none other. His 
acts, within the scope of his authority, bind the trust prop- 
arty to the same extent as the acts of an agent bind his prin- 
sipaL 

I 2268. Where there are several co-trustees, all iniist 
unite in any act to bind the trust property, unless the declara- 
tion of trust otherwise proyides. 

§ 2269. A discretionary power conferred upon a tnuiteo 
IS presumed not to be left to his arbitrary discretion, hut mar 
be controlled by the proper court if not reasoqably exercised, 
unless an absolute discretion is clearly conferred hy the dec- 
laration of trust 

ARTICLE IV. 

RI0HT8 or TBUBTBBS. 

SionoN 2278. Indemnification of trnste* 
2274. Compensation of tmstee. 
2276. InToluntary tmstee. 

§ 2273. A trustee 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 pro 
ductive of actual benefit to the estate. 

§ 2274. Except as provided in section 1700 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 compen- 
■ation, but does not specify the rate or amount, he Js entitled 



«7 TBU8T. §§ 2276-2283 

to siifh compensation as may be reasonable under the circum- 
stnnces. [In effect March 19, 1889.] 
&6 Cal. 628. 

§ 2276. An involuntary trnstee, who becomes inch 
*^brou^h his own fault, has none of the rights mentionea in 
EluB article. 

ARTICLE V. 

TBRMINATION OF THB TB1I8T. 

SiOTiON 2279. Trust, how exthigitiBhed. 

2280. Not revocable. 

2281. Trustee's office, how vsoatod 

2282. Trustee, how dischanred. 

2283. Removal by District Court 

§ 2279. A trust is extinguished by the entire fulfilment 
of its object, or by such object becoming impossible or unlaw- 
ful. 

§ 2280. A trust cannot be revoked by the trustor afler 
its acceptance, actual or presumed, by the trustee and bene- 
Beiaries, except by the consent of all the beneficiaries, unlen 
the declaration of trust reserves a power of revocation to the 
trustor, and in that case the power must be strictly pursued. 

§ 2281. The office &f a trustee is vacated : 

1. By his death; or, 

2. By his discharge. 

§ 2282. A trustee can be discharged from his trust onlj 
ns follows r 

1. By the extinction of the trust ; 

2. By the completion of his duties under the trust ; 

3. By such means as may be pi*escribed by the declaration 
of trust ; 

4. By the consent of the beneficiary, if he had capacity to 
eontract ; 

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. [In effect February 15, 1883.J 

§ 2283. The Superior Court may remove any trustee who 
has violated or is unfit to execute the trust ; or may accept 
tite resignation of a trustee. [In efiect April 5, 1880.] 



H 2287-2289 agenot. tit 

AETICLE VI 

•UOOBSSION OB AFFOINTHSNT OF XBW TBUSTnW. 

•BaonON 2287. Vacant traBteeship filled by eonrt. 

2288. Suryirorship between co-tnutees. 

2289. District Court as trustee. 

§ 2287. The Superior Court may appoint a trustee when* 
ever there is a vacancy, and the declai*ation of trust does not 
provide a practicable method of appointment, [in effect 
Aprils, 1880.] 

§ 2288. On the death, renunciation, or discharge of one 
of several co-trustees, the trust survives to the others. 

§ 2288. When a trust exists without any appointed 
trustee, or where all the trustees renounce, die, or are dis- 
charged, the Superior Court of the county where the trust 
property, or some portion thereof, is situated must appoint 
another trustee, and direct tlie execution of the trust. The 
court may, in its discretion, appoint the original number, or 
auy less number of trustees. [In effect April 5, 1880.] 



TITLE IX. 
AGENCY. 



CHArrER I. Agency in General, §§ 2295-23M. 
II. Particulab Agencies, §§ 2362-23MI. 



CHAPTER I. 

AGENCY IN GBNBRAIi. 

lanou. I. "Danyniov of Aoenct, §§ 229&-2300. 
II Authority or Aoeots, §§ 2304-2326. 
ni Mutual Obliqatioks of Pbincipals and Thibj) 

§$ 2330-2839. 
rV. Obligations of Agints to Third Persons, | 
V. Delegation of Aqenot, §§ 2349-2361. ^ , 

VL Tebmikatiom of Aarocr, §§ 2366-2366. y CjOOgle 



lit AOSHOT. §§ 2286-2300 

AETICLE L 

DEFINITION OF ▲OBNOT. 

SMnoii2295 Agency, what. 

2296. Who may appoint, and who may be an agtsk 

2297. Agents, general or special. 

2298. Agency, actual or ostensible. 

2299. Actual agency. 
2900. Ostensible agency. 

§ 2296. An agent is one who represents another, caQe^i 
the piincipal, in dealings with third persons. Such represen* 
tation is called agency. 

I 2296. An J person having capadtj to contract' may ap- 
point an agent, and any person may be an agent. 

§ 2297. An agent for a particular act or transaction ii 
Cftlled a special agent. All others are general agents. 

§ 2298. An agency is either actual or ostensihle. 

§ 2299. An agency is actual when the agent is really em« 
ployed by the prindpaL 

§ 2800. An agency is ostensible when the principal inten- 
tionally, or by want of ordinary care, causes a third person to 
believe another to be his agent who is not really empl^ed by 



ARTICLE II. 

AUTHOBITT OF A0BNT8. 

f S8M. What anthority may be cool erred. 
2806. Agent may perform acts required of principal by Code. 

2806. Agent cannot have authority to defraud prineipttl. 

2807. Creation of agency. 

2806. Consideration unneceaaary. 

S80O. Form of authority. 

8810. Batiflcatloa of agent^s act. 

2811. Ratification of part of a transaction. 

2812. ^rhen ratification Toid. 

2818. Ratification not to work injury to third penoae 

2814. Rescission of ratification. 

2816. Measure of agent's authority 

we. Actual authority, what. Digi,,^^ ^y GoOglc 



f § 2804-23 1 1 AOENCT. a<6 

BccTiON 2817. 0Bteiii4bI« authority, what. 

2318. Agent's authority as to penonfl haTing notice of iMtr » 

tions upon it. 

2319. Agent's necessary authority. 

2820. Agent's power to disobey iustructiouB. 

2321. Authority to be construed by its specific, rather than bj Iti 

general terms. 

2322. Exceptions to general authority. 

2823. What included in authority to sell personal property. 
2324. What included in authority to sell real property. 
23*25. Authority of general agent to receive price of property. 
28:i£6. Authority of special agent to receireprice. 

§ 2304. An agent may be authorized to do any acts which 
his principal might do, except those to which the hitter is 
bound to give his personal attention. 

§ 2306. Every act which, according to this Code, may be 
done by or to any person, may be done by or to the agent 
of such person for that purpose, unless a contrary intention 
clearly appears. 

§ 2306. An agent can never have authority, either actaal 
or ostensible, to do an act which is, and is known or suspected 
by the person with whom he deals to be, a fraud upon the 
principal. 

§ 2307. An agency may be created, and an authority may 
be conferred, by a precedent authorization or a subsequent 
ratification. 

§ 2308. A consideration is not necessary to make an aa- 
fchority, whether precedent or subsequent, binding upon thfi 
principal. 

§ 2309. An oral authorization is sufficient for any pnrposa^ 
except that an authority to enter into a contract required by 
law to be in writing can only be given by an instrument ia 
writing. 

§ 2310. A ratification can be made only in the mannef 
tbat would have been necessary to confer an original author- 
ity for the acf ratified, or where an oral authorization would 
suffice, by accepting or retaining the benefit of the act, witk 
notice thereof. 

§ 2311. liatification of part of an indivisible tramactioi 
b a ratificaiion of the whole. 



121 AGBNOT. §§ 2312-2320 

§ 2312. A ratification is not valid unless, at the time ol 
ratify! u»: the act done, the principal ha.9 power to confer au- 
thority for such an act. 

§ 2313. No unauthorized act can he made valid, retroac- 
tively, to the prejudice of third persons, without their con* 
eent. 

§ 2314. A ratification may be rescinded when made with- 
out such consent as is required in a contract, or with an im- 
perfect knowledge of the material facts of the transaction ra* 
tified, but not otherwise. 

§ 2316. An agent has such authority as the principal, aol- 
ually or ostensibly, confers upon him. 

§ 2316. Actual authority is snch as a principal intention- 
ally confers upon the agent, or intenttoDally, or by want of 
oixiinary care, allows the agent to believe himself to possess. 

§ 2317. Ostensible authority is such as a principal, inten- 
tionally or by want of ordinary care, causes or allows a third 
person to believe the agent to possess. 

§ 2318. Every agent has actually such authority as b 
defined by this title, unless specially deprived thereof by his 
principal, and has even then such authority astensibly, except 
as to persons who have actual or constructive notice of the 
restriction upon his authority. 

§ 2319. An agent has authority : 

1. To do everything necessary or proper and usual, in the 
ordinary course of business, for effecting the purpose of his 
agency; and, 

2. I'o make a representation respecting any matter of fact. 
Lot including the terms of his authority, but upon which his 
right to use his authority depends, and tlie truth of which 
tannot be determined by the use of reasonable dili<j;ence on 
the part of the person to whom the representation is made. 

§ 2320. An agent has power to disobey instructions in 
dealing with the subject of tne a«!:ency, in cases where it is 
flearly for the interest of his principaJ that he should do to^ 
ind tnere is not time to communicate with the principaL 



K 2821-2826 ageitot. 321 

§ 2321. When an authority is given parti j in general and 
partly in Bpecific terms, the general authority giyes no highaf 
powers than those specifically mentioned. 

§ 2822. An authority expressed in genoral termSy how 
ever broad, does not authorize an agent : 

1. To act in his own name, unless it is the usual course Oi 
business to do so ; 

2* To define the scope of his agency ; or, 

3. To (!o any act which a trustee is forbidden to do by Arti- 
cle II., Chapter I., of the last Title. 

§ 2328. An authority to sell personal property includes 
authority to warrant the title of the principal, and the quali^ 
and quantity of the property. 

§ 2324. An authority to sell and convey real property in- 
cludes authority to give the usual covenants of warranty. 

§ 2326. A general a^nt to sell, who is intrusted by the 
principal with the possession of the thing sold, has anthority 
to receive the price. 

§ 2326. A special agent to sell has authority to leceif* 
the price on delivery of the thing sold, but not afterwaids. 



ARTICLE in. 

MUTUAL OBLIOATIONS OF PSINCIPAL8 AVD THIBD 
PBSSONS. 

iMitOR 3880. Principal, how affected by acts of agent within the aeofa 

of his authority. 
2331. Principal, when bound by inoompleta ezeeatioa of author* 

ity. 
2382. Notice to agent, when notice to principal. 

2883. Obligation of inrincipal when agent exceeds his authoil^ 

2884. For acta done under a merely osteneible authority. 
2336. When exclusive credit is given to agent. 

2886. Rights of person who deals with agent without knowledft 

of agency. 

2887. Instrument intended to bind principal does bind Um. 
2838. Principal's responsibility for agent's n^Ugenoe or 
^^ sion. 
S890. Principal's respondbility ios wrongs wUfolly 

by the agent. 



3SS AosNST. §§2330-2838 

§ 2330. An agent represents his principal for all purposei 
irithin the scope of his actual or ostensible authority, and all 
the rights and liabilities which would accrue to the agent from 
transactions withiu such limit, if they had been entered into 
on his own account, accrue to the piincipal. 

§ 2331. A principal is bound by an incomplete execution 
of an authority, when it is consistent with the whole purpose 
and scope thereof, but not otherw'ise. 

§ 2332. As against a principal, both principal and agent 
are deemed to have notice of whatever either has notice of, 
and ought, in good faith, and the exercise of ordinary care 
■nd diligence, to communicate to the other. 

67 Cal. 380. 

§ 2333. When an agent exceeds his authority, his princi* 
pal is bound by his authorized acts so far only as thej can be 
plainly separated from those which are unauthorized. 

§ 2334. A principal is bound by acts of his a^ent, under a 
merely ostensible authority, to those persons only who have 
in good faith, and without ordinary negligence, incurred a lia- 
bility or parted with value, upon the faith thereof. 

§ 2336. 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. 

§ 2336. One who deals with an agent without knowing or 
having reason to believe that the agent acts as such in the 
transaction, may set off against any claim of the principal 
arising out of the same, all claims which he might have set off 
against the agent before notice of the agency. 

§ 2337. An instrument within the scope of his authority, 
by which an agent intends to bind his principal, does ' ind 
him if such intent is plainly inferrible from tne instrument 
^If. 



§ 2338. Unless required by or under the authority of law 
employ that particular agent, a principal is responsible tc 
ird persons for the negligence or his agent in the transao 



$§ 2889-2346 aoenct. 524 

Hon of tlie business of the agency, including wrongful acti 
committed by such agent in and as a pait of the transaction 
of such business, and for his wilful omission to fuliil the ob- 
ligations of the principal. 

§ 2339. A principal is responsible for no other wrong! 
committed by his agent than those mentioned in the last sec- 
tion, unless he h^s authorized or ratified them, even though 
they are committed while the agent is engaged in his service. 



ARTICLE IV. 

OBLIGATIONS OF AGENTS TO THIRD PERSONS. 

lionoiT 2342. Warranty of authority. 

2343. Agent's responsibility to third persons. 

2344. Obligation of agent to surrender property to third person. 

2345. Agent not having capacity to contract. 

{ 2342. One who assumes to act as an agent thereby war- 
rants, to all who deal with him in that capacity, that he has 
the authority which he assumes. 

§ 2343. One who assumes to act as an agent is responsible 
to third persons as a principal for his acts in the course of his 
agency, m anjr of the following cases, and in no others : 

1. When, with his consent, credit is given to him personally 
in a transaction ; 

2. W hen he enters into a written contract in the name of 
his principal, without believing, in good faith, that he has au- 
thority to do so ; or, 

3. When his acts are wrongful in thdr nature. 

§ 2344. If an agent receives anything for the benefit of 
his principal, to the possession of which another person is en- 
titled, he must, on demand, surrender it to such pereon, or so 
much of it as he has under his control at the time of demand. 
Ml being indemnified for any advance which he has made to 
his principal, in good faith, on account of the same ; and ia 
responsible therefor, if, after notice from the owner, he delivcri 
«t to his principal. 

§ 2346. The provisions of this article are subject to thf 
provisions of Part I., Division First, of this Code. [§§ ^^ 



5S5 AGfe.NOT. §§ 2848-2356 

ARTICLE V. 

DELEOATIOir OF AOENCT. 

Bmmms 22^9 Agent's delegation of his powers. 

23&0. Agent's unauthorized employment of sub-agent 
2351. Sub-aj^nt rightf ullj appointed, represents principal. 

§ 2349. An agent, unless specially forbidden by his pria 
apstl 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 snl^ 
agent 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. 

§ 2350. If an agent employs a sub-agent without author- 
ity, the former is a principal and the latter his ap^ent, and the 
principal of the former has no connection with the latter. 

§ 2351. A sub-agent, lawfully appointed, represents the 
prini^ipal in like manner with the original agent; and the 
original agent is not responsible to third persons for the acts 
of the sub-agent. 

ARTICLE VI. 

TERMINATION OF^AOENGT. 
Sicnoir 2356. Termination of agencsj. 



§ 2355. An agency is terminated, as to every person bar* 
lug 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 to act as such. 

§ 2356. Unless the power of an agent is coupled with an 
Interest in the subject of the agency, it is termmated, at ta 
iveiy person haying notice thereof, by : ugtized by Google 



H 2362-2863 aobnct. 

1. Its revocation by the principal ; 

2. His death ; or, 

3. Uifl incapacity to contract. 



CHAPTER IL 
PABTICUIiAR AGBNCIB3. 

AbxicliI. AnGTiONSKM.$« 2362*2968. 
II. FACToas, §§ 2367-2369. 

III. SaiPMASTKRS AND PILOTS, §§ 2878-2385. 

IV Ships' Managus, §§ 2388>2389. 
ARTICLE I. 

▲UOTIONEESS. 

Bscnoir 2862. Auctioneer's authority from the raller. 
2863. Auctioneer's authority from the bidder. 

§ 2362. An auctioneer, in the absence of special aathort 
cation or iisas^e to the contrary, has aathority from the seller 
only as follows : 

1. To sell by public auction to the highest bidder ; 

2. To t-eW for cash only, except such articles as are nsuallj 
sold on credit at auction ; 

3. To warrant, in like manner with other agents to sell 
according to section 2323 ; 

4. To prescribe reasonalMe rules and terms of sale ; 

6. To deliver the thing sold, upon payment of the price ; 

6. To collect the price ; and, 

7. To do whatever else is necessary, or proper and usual, in 
the ordinary course of business, lor effecting these purposes. 

§ 2363. An auctioneer has authority from a bidder at th« 
auction, as well as from the seller, to bind both by a mem- 
>randum of the contract, as prescribed in the Title on Sale. 

Ooaeemiag auc/tioneezs. Pol. Code, §} 8284-832*. 



,y Google 



n? j^BKOT. §§ 2367-2374 

ARTICLE II. 

rXCTORS. 

Ssonoif2867 Factor, what. 

2368. Actual authority of factor. 

2369. Ostensible authority. 

§ 2367. A factor is an agent, as defined by section 2026. 

§ 2368. In addition to the authoritj of agents in general, 
A factor has actual authority from his principal, unless spe- 
cially reatricted : 

1. I'o insure property consigned to him uninsured ; 

2. To sell, on credit, anything intrusted to him for sale, 
except such things as it U contrary to usage to sell on credit ; 
but not to pledge, mortgage, or barter the same ; and, 

3. To delegate his authority to his partner or servant, bat 
not to any person in au independent employment. 

§ 2369. A factor has ostensible authority to deal with the 
property of his principal as his own, in transactions with per- 
sons not having notice of the actual ownership. 

52 Gal. 589. 

ARTICLE III. 

SHIPMASTERS AND PILOTS. 

Sbotion 2873. Authority of shipmaster on behalf of shipowner 

2374. Authority to borrow. 

2375. Authority on behalf of owners of cargo. 

2376. Power to make contracts. 

2377. Power to hypothecate. 

2378. Maflter-s power to sell ship. 

2379. Master's power to sell cargo. 

2380. Authority to ransom ship. 

2381. Abandonment terminates master's power. * 

2382. Personal liability for contracts concerning the ship. 

2383. Liability for acts of persons employed upon- the ship. 

2384. Responsibility for negligence of pilot. 
2885. Obligations of shipowner to owner of cargo. 

§ 2373. The master of a ship is a general agent for iti 
%wner in all matters concerning the same. 

§ 2874. The master of a ship has authority to borrow 
aioney on the credit of its owner, if it is necessary to enable 



S§ 2375-2380 agency. 328 

aim to complete the voyage, and if neither the uMrner nor hia 
proper agent for such matters can be consulted without in- 
jurious delay. 

§ 2375. The master of a ship, during a voyage, is a gen- 
eral agent for each of the owners of the car«ro, and has au- 
thority to do whatever they might do for the preservation of 
their respective interests, but he cannot sell or hypothecate 
the cargOy except in the cases mentioned in this article. [In 
effect July 1, 1874.] 

§ 2376. The master of a ship may procure all its neces 
sary repairs and supplies, may engage cargo and passenger? 
for carriage, and, in a foreign port, may enter into a charter 
party ; and his contracts for these purposes bind the owner 
to the full amount of the value of the ship and freightage. 

§ 2377. The master of a ship may hypothecate the ship, 
freightage, and cargo, and sell pkrt of the cargo, in the cased 
prescribed by the Chapters on Bottomry and Respondentia, 
and in no others, except that the master may also sell the 
cargo or any part of it, short of* the port of destination, if 
found to be, of such perishable nature, or in such damaged 
condition that, if left on board or resliipped, it would h.e en- 
tirely lost, or would seriously endanger the interests of its 
owners. [In effect July 1, 1874.] 

§ 2378. When a ship, whether forei^ or domestic, is se- 
riously injured, or the voyage is otherwise broken up, beyond 
the possibility of pursuing it, the master, in case of necessity," 
may sell the ship without instructions from the owners, unless 
by the earliest use of ordinary means of communication he 
can inform the owners, and await their instructions. 

■ § 2379. The master of a ship may sell the cargo, if the 
»oyage is broken up beyond the possibility of pursuing it, and 
no* other ship can be obtained to cairyit to its destination, 
and the sale is otherwise absolutely necessary. 

§ 2380. The master of a ship, in case of its capture, may 
engage to pay a ransom for it, in money or in part of the 
cargo, and his engagement will bind the ship, freighta^, bii4 

Digitized by VjOOQIC 



B29 AOENCT. §§ 2381-2389 

§ 2381. The power of the master of a ship to bind its 
owner, or the owners of the cargo, ceases upon the abandon- 
ment of the ship and freightage to insurers. 

§ 2382. Unless otherwise expressly agreed, or unless the 
contracting parties give exclusive credit to the owner, the maH* 
ter of a ship is per.sonally liable upon his contracts relatiye 
thereto even when the owner is also liable. 

§ 2383. The master of a ship is liable to third persons 
for the acts or negligence of persons employed in its naviga- 
tion, whether appointed by him or not, to the same extent as 
fche owner of the ship. 

§ 2384. The owner, or master of a ship is not responsible 
for the negligence of a pilot whom he is bound by law to em- 
ploy ; but if he is allowed an option between pilots, some of 
whom are competent, or is required only to pay compensation 
to a pilot, whether he employs him or not, he is so responsible 
to third persons. 

§ 2385. The owner of a ship is bound to pay to the owner 
of her cargo the market value at the time of anival of the 
ship at the port of her destination, of that portion of her 
cargo which has been sold to enable the master • to pay the 
necessary repairs and supplies of the ship. [In effect July 1, 
1874.] 

ARTICLE IV. 

8HIP8' HANAGEK8. 

tsEonov 2888. What powers manager has. 
2389. What powers he has not. 

§ 2388. A ship's manager has power to make contracts 
idquisite for the performance of his duties as such ; to enter 
into charter parties, or make contracts for carriage ; and to 
settle for freightage and adjust averages. 

§ 2389. Without special authority a ship's manager can- 
not borrow money or give up the lieu for freightage, or pur 
I a cargo, or bind tte owners of the ship to an insurance 

Digitized by VjOOQIC 



fS 2395-2897 partxersuip. 

TITLE X. 
PARTNERSHIP. 

Ohapter I. Partnership in General, §§ 2395-241& 
II. GKMhRAL Partnership, §§ 2424-2471. 
TIL Special Partnership, |§ 2477—2510 
lY. Mining Partn£rs|iu>, §§ 2511-8520. 



CHAPTER L 

PARTNERSHIP IN QENERAL. 

AmoLx I. What coxstitutcs a Partnership, § f 2895-2897. 
II. Partnership Property, §§ 2401-2106. 
III. Mutual Obuoations of Partners, §| 2410-241S. 
lY. RSKUMOlATiON OP Partnebship, §§ 2117-2^18 

ARTICLE I. 

WHAT GONSTITUTEg A PABTNBKSHIP. 

SscnoN 2396. Partnership, what. 

2396. Shipowners. 

2397. Formation of partnership. 

§ 2395. Partnership is the association of two or mom 
persons, for the purpose of carrying on business together, and 
dividing its profits between them. 

§ 2396. Part owners of a ship do not, by simply using it 
in a joint enterprise, become partners as to the ship. 

§ 2397. A partnership can be formed only by the consent 
of all the parties thereto, and therefore no new partner can bf 
admitted into a partnership without the consent of erery ex 
istiog member thereof. 



,y Google 



131 PABTNBRSHIP. §§ 2401-2406 

ARTICLE n. 

FARTNEBSHIP PKOPBRTT. 

BlonOH 2401. Partnenhip property, what. 

2402. Partner's interest in partnership propertj. 

2403. Partner's share in profits and losses. 

2404. \Vhen diyiition of losses implied. 

24J6. Partner may require application of partnership property It 

payment of debts. 
2406. What property is partnership property hy presumption. 

§ 2401. The property of a partnership consists of all that 
is coutributed to the common stock at the formation of the 
partnership, and all that is subsequently acquired thereby. 

§ 2402. The interest of each member of a partnership 
extends to every portion of its property. 

§ 2403. In the absence of any agreement on the subject, 
the shares of partners in the profit or loss of the business are 
equal, and the share of each in the partnership property is the 
value of his original contribution, mcreased or diminished by 
his share of profit or loss. 

56 Cal. 460. 

§ 2404. An agreement to divide the profits of a business 
implies an agreement for a corresponding division of its losses, 
luless it is otherwise expressly stipulated. 

§ 2405. Each member of a partnership may require it« 
)>roperty to be applied to the discharge of its debts, and has 
ft Jien npon the shares of the other partners for this purpose, 
and for the payment of the general balance if any due to 
him. 
58 Cal 466. 

§ 2406. Property, whether real or personal, acr(uiied 
with partnership funds, is presumed to be partnership pro|h 
»rt/. 

ARTICLE in. 

MUTUAL OBLIOATIOK OF PARTNBB8. 

BlonOH 2410. Partners trustees for each other 

2411. Good faith to be observed between thoa 

2412. Mutual liability of partners to account, i 
SUB. No compensation for services to flrm^gLC 



i% 2410-2418 PARTNEBSHIP. 832 

§ 2410. The relations of partners are confidential. They 
are trustees for each other within the meaning of Chapter 1. 
of the Title on Trusts, and their obligations as such truateei 
are defined by that chapter. 

§ 2411. 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 hia 
copartners. He may not obtain any advantag:e over them in 
the partnership affairs by the slightest misrepresentation, con- 
cealment, threat, or adverse pressure of any kind. 

§ 2412. Each member of a partnership must account to it 
for everything that he receives on account thereof, and is en- 
titled to reimbursement therefrom for everything that he prop- 
erly expends for the benefit thereof, and to he indemnified 
thereby for al] losses and risks which he necessarily incurs on 
its behalf. 

§ 2413. A partner is not entitled to any compensation fof 
iervices rendered by him to the partnership. 



ARTICLE IV. 

RENUNCIATION OF PARTNERSHIP. 

BionON 2417. Renunciation of future profits exonerates from UablUtj. 
2418. Effect of renunciation. 

§ 2417. A paitner may exonerate himself from all future 
liability to a third person, on account of the partnership, by 
renouucin":, in good faith, all participation in its future pi*ofii8, 
and jiiving notice to such third person, and to hia own co- 
partners, that he has made such renunciation, an<l that, so 
far as may be in his power, he dissolves the partnership und 
does nul intend to be liable on account thereof fur the future. 

^ § 2418. After a partner has given notice of his renuncia 
tion of the partnership, he cannot claim any of it8 subsequeu 
profits, and his copartners may proceed to dissolve the part 
uership. 



,y Google 



BS PABTNEBSHIP. §§ 2424-2430 

CILAJTER II. 

qbnebaij partnership. 

isnoLB I. What is a Gknebal PARTiriasHip, § 2424. 

II. POWBRS AKD AUTfiOEITT OP Partnirs, §§ 2428-2481. 

IIL MuTUAi. Obugations of Partners, §§ 248&-a488. 
IV. Liability op Partnirs, §§ 2442-2446. 
y. Tkrminatioit of Partnsrship, §§ 2449-24&4. 
VI. Liquidation, §§ 2468-2462. 
YII. Of Tfli UsB OF JfiCTiTiouB Names, §§ 2466-2471. 

ARTICLE L 

WHAT 18 ▲ OKNERAL PARTNERSHIP. 

Section 2424. General partnership, what. 

§ 2424. Every partnership that is not formed in aooord« 
ance with the law concerning special or mining partnerahips, 
Rnd every gpecial partnership so far only as the general part- 
ners are concerned, is a general partnership. 

ARTICLE II. 

POWERS AND AUTHORITY OP PARTNERS. 

BlOTiON 2428. Power of majority of partners. 
2429. Authority of indiyidual partner. 
2490. What authority partner has not. 
2431. Partner's acts in bad faith, when inefTeotaal. 

§ 2428. Unless otherwise expresshr stipulated, the deci- 
sion of the majority of the members of a general partnership 
binds it in the conduct of its busine&s. 

§ 2429. Every general partner is agent for the paitner* 
ship in the transaction of its business, and has authority to do 
whatever is necessary to carry on such business in the ordi- 
nary manner, and for this purpose niay bind his copartners 
by an agreement in writing. 

§ 2430. A partner, as such, has not authority to do any of 
the following acts, unless hi? copartners have wholly aban 
iooed the busiuess to him, or are mcapable of acting : 
22 



{| 2431-2438 pastnershif. 334 

1. To make an assignment of the partnership property or 
inj- 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 thie business ; 

3. To dispose of the whole of the partnership property afc 
once, unless it consists entirely of merchandise ; 

4. To do any act which would make it impossible to carry 
on the ordinary business of the partnership ; 

5. To confess a judgment ; 

6. To submit a partnership claim to arbitration ; 

7. To do any other act not within the scope of the preced 
lug section. 

§ 2431. A partner is not bound b^ any act of a copartner, 
in bad faith toward him, though withm the scope of tne part- 
ner's powers, except in favor of persons who have in good 
faith parted with value in reliance upon such act. 



ARTICLE III. 

MUTUAL OBLIGATIONS OF PARTKEKS. 

Section 2185. Profits of individual partner. 

2436. In what business partner may not engage. 

2437. In what he may engage. 

2488. Must account to firm for profits. 

§ 2435. All profits made by a general partner, in the 
course of any business usually carried on by the partnei*ship, 
belong to the firm. 

§ 2436. A general partner, who agrees to give his personal 
atrentiou to the business of the partnership, may not engage 
in any business which gives him an interest adverse to ihat of 
the partnership, or which prevents him from giving to 8u<'h 
business all the attention wnich would be advantageous to it. 

§ 2437. A partner may engage in any separate business, 
ixcept as otherwise provided by the last two sections. 

§ 2438* A general partner transacting business contrary 
to the provisions of this article may be required by any co 

Krtner to account to the partnership for the profits of saci 

■"•^ • ugitized by Google 



ISft PABTMEKSHiF. §$ 244m-2460 

ARTICLE IV. 

LIABILITY OF PAKTNBKS. 

Bmmov 2442. Liability of partnen to third persons. 

2448. LiabiUty for each other's acts as agenti. 

2444. Idabiiity of one held out as partner. 

2446. No one liable as partner unless held out as suei; . 

§ 2442. Every general partner is liable to third penont 
for all the obligations of the partnership, jointly with his oo- ' 
partners. 

§ 2443. The liability of general partners for each other's 
Bcts is defined by the Title on Agency. 

§ 2444. Any one permitting himself to be represented as 
% partner, general or special, is liable, as such, to third per- 
sons to whom such representation is communicated, and who, 
on the faith thereof, give credit to the partnership. 

§ 2445. No one is liable as a partner who is not sach in 
Ikct, except as provided in the last section. 



ARTICLE V. 

TEKMINATION OF PABTNBBSHIP. 

Bionov 2449. Duration of partnership. 

2450. Total dissolution of partnership. 

2451. Partial dissolution. 

2452. Partner entitled to dissolution. 

2453. Notice of termination 

2454. Notice by clumge of name. 

€ 2449. If no term is prescribed by agreement for its du* 
raiion, a general partnersnip continues until dissolved by a 
t^artner or by operation of law. 

§ 2450. A general partnership is dissolved as to all the 
oartners : 

1. By lapse of the time prescribed by agreement for its da- 
rati m ; 

2. By the expressed will of any partner, if there is nc tneh 
l^reement ; 



{§ 2451-2464 pabtnership. S3# 

3. By the death of a partner ; 

4. By the transfer to a person, not a partner, of the inter- 
tst of any partner in the partnership property ; 

5. By war, or the prohibition of commercial intercourse be- 
tween the country in which one partner resides and that in 
which another resides ; or, 

6. By a judgment of dissolution. 

§ 2451. A general partnership may be dissolved, as to 
himself only, by the expressed will of any partner, notwith- 
* ftanding his agreement for its continuance, subject howevex 
to liability to his copartnera for any damage caused to them 
thereby, unless the circumstances are such as entitle him to 
a judgment of dissolution. 

§ 2452. A general partner is entitled to a judgment of 
dissolution : 

1. When he, or another partner, becomes legally incapable 
of contracting ; 

2. When another partner fails to perform his duties under 
the agreement of partnership, or is guilty of serious miscon- 
duct ; or, 

3. When the business of the partnership can be carried on 
only at a permanent loss. 

§ 2453. The liability of a general partner for the acta of 
his copartners continues, even after a dissolution of the co- 
partnership, in favor of persons who have had dealings with 
and given credit to the paitnership during its existence, untfl 
^hey have had personal notice of the dissolution ; and in favor 
of other persons until such dissolution has been adveitised in 
* newspaper published in every county where the partner- 
bhip, 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 iu 
che belief that such partner is still a member of the firm. 

§ 2454. A change of the partnership name, which plainly 
tadicates the withdrawal of a partner, is sufficient notice o* 
he fact of such withdrawal to all persons to whom it is com- 
oi'^nicated ; but a change in the name, which does not con 
tain such an indication, is not notice of the withdrawal of an. 
partner. 

Digitized by VjOOQIC 



117 FABTHSR8HIP. §§ 2468-2462 

AKTICLE VI. 

LIQUIDATIOK. 

SiCtiON 2468. Powers of partners after diMolation. 
2458. Who may act in liquidation. 

2460. Who may not act in liquidation. 

2461. Powem of partneiiB in liquidation. 
9462. What partner may do in liquidation. 

§ 2458. After the dir^solntion of a partnership, the poweit 
and authority of the partners are such only as are prescribed 
by this article. 

§ 2469. Any member of a general partnership may act in 
liquidation of its affairs, except as provided by the next sec- 
tion. 

§ 2460. If the liquidation of a partnership is committed, 
by consent of all the partnera, 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. 

§ 2461, A partner authorized to act in liquidation may 
collect, compromise, or release any debts due to the partner 
ship, pay or compromise any claims against it, and dispose of 
the partnership property 

§ 2462. A partner authorized to act in liquidation may 
indorse, in the name of the firm, promissory notes, or other 
obligations held by the partnership, for the purpose of collect- 
ing the same, but he cannot create any new obligation in its 
name, or revive a debt against the firm, by an acknowledg- 
ment when an action thereon is barred under the provision! 
if tie Code of Civil Procedure. [In effect July 1, 1874.] 



ARTICLE VII. 

or THE USB OF FIOTITIOUS NAMES. 



8lGnov2466. FictitiouB n^me. 

2467. Style of foreign partnershto. 
3468. Certificate, when to be fil^ 



K 2466-2469 fartmebship. 88S 

BlonON 24€9. New certifiaites on change of partner. 

2470. Register of such fimu> to be kept by county eleck. 
2171. Certified copies of register, and proof of publication, to !• 
evidence. 

§ 2466. Except as otherwise provided in the next secticMi 
iverj 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 its principal place of 
business is situated a certificate stating the names in fall of 
all the members of such partnership and their places of resi- 
dence, and publish the same once a week, for four successive 
weeks, in a newspaper published in the county, if there be 
one, and if there be none in such county, then in a newspaper 
published in an adjoining county. [In effect July 1, 1874.J 

§ 2467. A commercial or bankinj^ partnership, established 
and transacting business in a place without the United States, 
may, without lling the certificate, or making the publication 
prescribed in the last section, use in this State the partnership 
name used by it there, although it be fictitious, or do not show 
the names of the persons interested as partners in such busi- 
ness. [In effect July 1, 1874.] 

§ 2468. The certificate filed with the clerk, as provided 
in section twenty-four hundred and sixty-six, must be signed 
by the partners, and acknowledged before some officer au- 
thorized to take the acknowledgment of conveyances of real 
property. Where the partnership is hereafter formed, the 
certificate must be filed, and the publication designated in 
that section must be made witliin one month after the forma- 
tion of the partnership, or within one month from the time 
designated in the agreement of its members for the com- 
mencement of the partnership; where the partnership has 
been heretofore formed, the certificate must be filed, and the 
publication made within six months after the passage of this 
net. Persons doinj? business as partners contrary to the pro- 
risions of tliis article shall not maintain any action upon or 

n account of any contracts made or transactions had in their 
partnership name, in any court of this State, until they have 
first filed tne certificate and made the publication herein r» 
Tjiured. [In effect July 1, 1874.1 

66 (Jal. 169, 262. 

§ 2469. On every change in the memben c^a naitMi 

uigitized byVjOv* 



<39 PAKTNERSHIF. §§ 2470-2477 

ship transactinj^ 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, excef)t 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. [In effect July 1, 1874.] 

§ 2470. Every county clerk must keep a register of the 
names of firms and persons mentioned in the certificates filed 
with him, pursuant to this article, entering in alphabetical 
order the name of every such partnership, and of each partner 
therein. [In effect July 1, 1874.] 

§ 2471. 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 
elerk of a newspaper, are presumptive evidence of the facts 
therein stated. 



CHAPTER HL 

SPBOIAL PARTNERSHIP. 

Imcu I. VoBXATioif OP Partniiiship, §§ 2477-2485. 

11. PowiBS, Rights, aitd Duties or ths Pastitsks, §§ 2489-2490. 
III. Liability of Paetwbbs, §§ 2600-2608. 

lY. ALTK&ATIOlf AND DISSOLUTION OP TBI PABTNIMHIP, }} 260?* 

2610. 

ARTICLE I. 
FORMATION OP PABTNBBSHIF. 

SwnoN 2477. formation of special partnership. 

2478. Of what to consist. 

2479. Certified statement. 

2480. Acknowledged and recorded. False statement. 

2481. Affidavit as to sums contributed. 

2482. No partnership until compliance. 

2483. Certificate to be published. 

2484. Affidavit of publication filed. 
2486. Renewal of special partnership. 

§ 2477* A special partnership may be formed by two ot 
persons, in the manner and with the effe^^x prescribed 



SS 2478-2482 pastnersrip. S40 

hi this chapter, for the transaction of any bosiness exce{it 
banking or insurance. 
Fraud in partnership mattezs. Penal Code, § 358. 

§ 2478. A special partnership may consist of one or mor« 
persons called general partners, and one or more personi 
called special partners. 

§ 2479. Persons desirous of forming a special partnership 
must severally sio:n a certificate, stating : 

1. The name nnder which the partnership is to be con- 
ducted ; 

2. The general nature of the business intended to be trans- 
acted ; 

3. The names of all the partners, and their residences, spec- 
ifying which are general and which are special partners ; 

4. The amount of capital which each special partner has 
contributed to the common stock ; 

5. The periods at which such partnership will b^n and 
end. 

§ 2480. Certificates nnder the last section must be ac- 
knowledti:ed by all the partnere, 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 recoi*der of 
the county in which the principal place of business of the 
partnership is situated, in a book to be kept for that pur- 
pose, open to public inspection ; and if the partnei-ship has 
places of business situated in different counties, a copy of the 
certificate, certified b^' the recorder in whose office it is re- 
corded, must be filed in the clerk's office, and recorded in like 
nanner in the office of the recorder in every such county. If 
any false statement is made in any such certificate, all the per- 
sons interested in the partnership are liable, as general part- 
ners, for all the engagements thereof. 

§ 2481. An affidavit of each of the partners, stating that 
the sums specified in the certificate of the partnership as hav 
mg been contributed by each of the special partners, hav« 
been actually and in good faith paid, in the lawful money of 
the United States, must be filed in the same office with'tht 
onginal certificate. 

>do^of\^LVT'''^ partnership is formed nntil the MD 
MiOM of the last fave sections are complied with. ~ 



Ml PARTyERSHiF. §§ 2488-2491 

§ 2483. The certificate mentioned in this article, or a 
itatement of its substance, must be published in a newspaper 
printed in the county where the onginal certificate is filed, 
and if no newspaper is there printed, then in a newspaper in 
the State nearest thereto. Such publication must be made 
once a week for four successive weeks, beginning within one 
week from the time of filing the certjlcate. In case such pub- 
lication is not so made, the partnership must be deemed gen- 
eral. 

§ 2484. An affidavit of the making of the publication 
mentioned in the preceding section, made by the printer, pub- 
Usher, or chief clerk of the newspaper in which such publica- 
tion is made, may be filed with the county recorder witn whom 
the original certificate was filed, and is presumptive evidence 
of the facts therein stated. 

§ 2485. Every renewal or continuance of a special part- 
nership must be certified, recorded, verified, and published in 
Ihe same manner as upon its original formation. 



ARTICLE n. 

POWERS, RIGHTS, AND DUTIES OP THE PASTKEBS. 

Section 2489. Who to do businera. 

2490. Special partners may advise. 

2491. May loan money. Insolvency. 

2492. Oeneral peurtners may sue and be sued. 

2493. Withdrawal of capital. 

2494. Interest and profits. 

2496. Result of withdrawing capital. 
2496. Preferential transfer void. 

§ 2489. The general partners only have authority to trans- 
jtct the business of a special partnership. 

§ 2490. A special partner may at all times investigate the 
paitnership affairs, and advise his partners, or their agents, as 
*io their management. 

§ 2491. A special partner may lend money to the part- 
nership, or advance money for it, and take from it security 
therefor, and as to such loans or advances has the same rights 
•f any otJier creditor ; but in case of the insolvency of thtf 



{§ 24&2'-2601 PARTNEBSHIP. S4S 

partnership, all other claims which he may have against f 
must be postponed until all other creditors are satisfied. 

§ 2492. 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. 

§ 2493. No special partner, under any pretence, may with- 
draw any part of the capital invested by him in the partner- 
ship, during its continuance. 

§ 2494. A special partner may receive such lawful inter 
est and such proportion of profits as may be agreed upon, it 
not paid out of the capital invested in the partnership by him, 
or by some other special partner, and is not bound to refund 
the same to meet subsequent losses. 

§ 2496. If a special partner withdraws capital from the 
firm, contrary to the provisions of this article, he thereby be- 
comes a general partner. 

§ 2496. Every transfer of the property of a special part- 
nership, or of a partner therein, made after or in contempla- 
tion of the insolvency of such partnership or partner, with in- 
tent to give a preference to any creditor of such partnership 
or })artner over any other creditor of such partnership, is void 
against the creditors thereof; and every judgment confessed, 
Hen created, or s^ecurity given, in like manner and with the 
like intent, is in like manner void. 



ARTICLE III. 

LIABILITY OP PARTNERS. 

810TI0M 2500. Liability of partners. 

2501. Of spociiil partners. 

2502. Liability for unintentional act 

2503. Who may question existence of special partnershli 

§ 2500. The genenil partners in a special partnership an 
fable to the same extent as partners in a general partnership 

§ 2601. Th3 contribution of a special partner to the cap 
Ital of the firm, and the increase thereof, is liable for its debta 
tut ha is not otherwise Kable therefor, except as foUowi : 



Md PARTNEBSHIP. §§ 2602-2607 

1. If he has wilfully made or permitted a false or mare* 
rially defective statement in the certificate of the partnership, 
the affida> it 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 hasiness of the 
firm, except as permitted in Article II. of this Chapter, he is 
liable in like manner ; or, 

3. If he has wilfully joined in or assented to an act con* 
trary to an^ of the provisions of Article II. of this Chapter, 
he is liable in like manner. 

§ 2602. When a special partner has unintentionally done 
any of the acts mentioned in the last section, he is liable, as a 
general partner, to any creditor of the firm who has been act- 
ually misled thereby to his prejudice. 

§ 2603. One who, upon making a contract with a part- 
nership, accepts from or gives to it a written memorandum 
of the contract, stating that the partnership is special, and 
giving the names of the special partners, cannot afterward:^ 
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 part- 
ners, in good faith, to form a special partnership in the manner 
required by Article I. of this Chapter. 



ARTICLE IV. 

ALTERATION AND DISSOLUTION. 

Stcnoy 2&07. When special parcnenhip becomes general. 

2608. TIow new special partners may be admitted. 

2609. Dissolution of special partnerships. Notice. 

2610. The name of a special partner not used, unless. 

§ 2607. A special partnership becomes general if, within 
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 yf such fact, duly 
rerified and signed by one or more of the partners, is not filed 
irith the county clerk and recorder with whom the original 
Iprtifiratft of the partnership was filed, and notice thereof pub* 



|§ 2608-2611 PASTNES8HIP. 844 

lished as is provided in Article I. of this chapter for the pub 
lication of the certificate. 

§ 2608. New special partners may be admitted into a spe- 
cial partnership upon a certificate, stating the names, resi- 
dences, and contributions to the common stock of each d 
such partners, 8i»;ned by each of them, and by the generpl. 
partners, verified, acknowledjjed, or proved, according to thfl 
provisions of Article I. of this chapter, and filed with- th« 
county clerk and recorder with whom the original certificate 
of the partnership was filed. 

§ 2609. A special partnership is subject to dissolution in 
the same manner as a g:eneral partner.-hip, except that no dis- 
solution, by the act of the partners, is complete until a notice 
thereof has been filed and recorded in the oflfice of the county 
clerk and recorder with whom the original certificate was re- 
corded, and published once in each week, for four successive 
weeks, in a newspaper printed in each county where the part- 
bership has a place of business. 

§ 2610. The namef of a special partner must not be used 
m the firm name of partnership, unless it be accompanied with 
Jie word " limited." 



CHAPTER IV. 

MINING PARTNERSHIPS. 

fixoTiON 2511. When a mining partnership exists. 

2512. Express agreement not necessary to constitate. 

2518. Profits and losses, how shared. 

2614. Lien of partners. 

2616. Mine — Partnership property. 

2616. Partnership not dissolved by sale of interest. 

2617. Purchaser takes, subject to liens, unless, &c, 

2518. Takes with notice of lien, when. 

2519. Contract in writing, when binding. 

2520. Owners of majority of shares govern. 

§ 2611. A mining partnership exists when two or more 
^lersons who own or acquire a minmg claim for the purpose o; 
i^orking it and extracting the mineral therefVom actaallj ea 
|agiB in working the same. 



M5 PARTNEB8HIP. §§ 26 1 2-261 9 

§ 2612. An express agreement to become partners or to 
phare the profits and losses of mining is not necessary to the 
formation or existence of a mining partnership. The relation 
arises from the ownership of shares or interests in the mine 
and working the same for the pnrpose of extracting the min- 
erals therefrom. 

§ 2613. A member of a mining partnership shares in the 
profits and losses thereof in the proportion which the interest 
or share he owns in the mine bears to the whole partnephip 
capital or whole number of shares. 

§ 2614. Eacli member of a mining partnership has a lien 
on the partnership property for the debts due tne 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. 

§ 2616. The mining ground owned and worked by partners 
En mining, whether purchased with partnership funds or noi, 
is partnership property. 

§ 2616. One of the partners in a mining partnership may 
convey his interest in the mine and business without dissolving 
the partnership. The purchaser, from the date of his pur 
chase, becomes a member of the partnership. 

§ 2617. A purchaser of an interest in the mining ground 
of a mining partnership takes it subject to the liens existing in 
favor of the partners for debts due all creditors thereof, or ad- 
vances made for the benefit of the partnership, unless he pur- 
chased in good faith, for a valuable consideration, without 
lotice of such lien. 

§ 2618. A purchaser of the interest of a partner in a mine 
when the partnership is engaged in working it, takes with no- 
tice of all liens resulting from the relation of the partners to 
each other and to the creditors of the partnership. 

§ 2619. No member of a mining partnership or other 
agent or manager thereof can, by a contract in writing, bind 
#ie partnership, except by express authority derived from the 
fiembers thereof. „gi,,ed by Google 



f§ 2620-2627 insuravcb. 346 

§ 2520. The decision of the members owning a majority o. 
the shares or interests in a mining partnership binds it in the 
conduct of its business. 



TITLE XI. 

INSURANCE. 



Cbapter I. Insurance in Gknerai^ §§ 2527-2649. 

II. Marine Insurance, §§ 2656-2746. 

III. Fire Insurance, §§ 2752-2756. 

IV. Life and Health Insurance, §§ 2762-27M. 



CHAPTER I. 

INSURANCE IN QBNBRAIj. 

AancLi I. DEFiNiTioy or Insttranox, § 2527. 

.II. What hat be insuekd, §§ 2531-2684. 
ni. PAETI18, §§ 2638-2542. 
IV. Insurable Interest, §§ 2546-2568. 
V. Concealment and Representation,^^ 1 
VI. The Pouct, §§ 2586-2599. 
VII. Warranties. J§ 2603-2612. 
VIII. Premiums, f § 2616-2622. 
IX. Loss, §§ 2626-2629. 
X. Notice op Loss, §§ 2633-2637. 
XI. Double Insurance, §§ 2641-2642. 
XII. Reinsurance, §§ 2646-2649. 



ARTICLE I. 

DEFINITION OF INSURANCE. 

Section 2527. Insurance, what. 

§ 2527. Insurance is a contract whereby one undertakes ^^ 
iDLemnify another a<;ainst loss, damage, or liability, arisiiw 
irom an unknown or contingent event. 

Offlee and Duties of Insurance Commissioners, Pol. Code, M fi9f^-6ff'. 
ftestrnotion of insured Property, Penal Code, § 648: Arson, raaL Joi» 



M7 iNsuiUkNCB. §§ 2581-2689 



ARTICLE II. 

WHAT MAT BB INSURED. 

BlcnoN 2531. What eventei may be infrared against. 

25S2. Insurance of lottery or lottery priM unaathorUnd. 

2533. Usual kinds of insurance. 

2534. AU subject to this chapter. 

§ 2531. Any contingent or unknown event, whether past 
Z/r future, which may damnify a person having an insurable 
interest, or create a liability against him, may be insured 
against, subject to the provisions of this chapter. 

§ 2632. The preceding section does not authorize an in- 
Burance for or against the drawing of any lottery, or for or 
against any chance or ticket in a lottery drawing a prize. 

Lo^eries. Penal Code, §§ 324, 326. 

§ 2633. The most usual kinds of insurance are : 

1. Marine insurance; 

2. Fire insurance ; 

3. Life insurance ; 

4. Health insurance ; and, 

5. Accident insurance. 

§ 2634. All kinds of insurance are subject to the pri^ 
risions of this chapter. 



ARTICLE III. 

PARTIES TO THB CONTRACT. 

BXCTION 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. 

§ 2638. The person who undertakes to indemnify another 
by a contract of msurauee is called the insurer, ana the per- 
■on indemnified is called the insured. 

§ 2639. Any one capable of making a contract may be 
Ml insurer, subject to the restrictions imposed by special 
lUtates apon foreign corporations, ni>n- residents, andj)ther». 



{§ 2640-2647 insuravgb. 8M 

§ 2640. Any one except a public enemj may be in 
nired. 

§ 2541. Where a mortgagor of property effects insnranoe 
In hia own name, providing that the loss shall be payable to 
the mortgagee, or assigns a policy of insurance to the mort* 
gagee, the insurance is deemed to be upon the interest of the 
mortgagor, who does not cease to be a party to the original 
contract, and any act of his which woulu otherwise avoid the 
insurance will have the same effect, although the property ii 
in the hands of the mortgagee. 

§ 2 542. If an insurer assents to the transfer of an insurance 
from a mortga<2:or to a mortgagee, and, at the time of his as- 
sent, imposes further obligations on the assignee, making a 
new contmct with him, the acts of the mortgagor cannot 
affect his rights. 

ARTICLE IV. 

INSURABLE INTEREST. 

BionoN 2546. Iiuurable interest, what. 

2547. In what may consist. 

2548. Interest of carrier or depositary 
2649. Mere expectancies. 

2550. Measure of interest in property. 

2551. Insurance without interest, ill^;al. 

2552. >Vhen interest must exist. 

2553. Effect of transfer. 

2554. Transfer after loss. 

2555. Exception in the case of several sabjeets in one poUej. 

2556. In case of the death of the insurer. 

2557. In the case of transfer between co-tenantg. 
2568. Policy, when void. 

§ 2546. Every interest in property, or any relation there 
to, or liability in respect thereof, of such a nature that a con 
tern plated peril might directly damnify the insured, is an in 
Burable interest. 

§ 2547. An insurable interest in property may consisi 
In : 

1. An existing interest ; 

2. An inchoate interest founded on an existing interest 
w, 

3. An expectancy, coupled with an existing interest in tha' 
lut of whicn the expectancy arises. 



M9 iNSuiiANOB. §§ 2648-2657 

§ 2548. A carrier or depositary of any kind has an inenr- 
able interest in a thing held by him as such, to the extent oi 
its value. 

§ 2649. A mere contingent or expectant interest in auy- 
thing, not founded on an actual right to the thmg, nor upon 
any valid contract for it, is not insurable. 

§ 2560. The measure of an insurable interest in property 
is ihe extent to which the insured might be damnified by lost 
or injury thereof. 

§ 2661. The sole object of insurance is the indemnity of 
the Insured, and if he has no insurable interest the contract it 
void. 

§ 2552. An interest insured must exist when the insur- 
ance takes effect, and when the loss occurs, but need not exist 
En the mean time. 

§ 2663. Except in the cases specified in the next four 
sections, and in the cases of life, accident, and health insur- 
s.v'.ce, a change of interest in any part of a thing insured, un- 
BTCompanied by a corresponding change of interest in the 
insurance, suspends the msurance to an equivalent extent, 
nutil the interest in the thing and the interest in ihe insur- 
ance are vested in the same person. 

§2564. A change of interest in a thing insured, after the 
occurrence of an injury which results in a loss, does not attect 
the right of the insured to indemnity for the loss. 

§ 2656. A change* of interest in one or more of severs' 
iistinct things, separately insured by one policy, does noi 
i'^oid the insurance as to the others. 

§ 2666. A change of interest, by will or succession, oi 
the death of the insured, does not avoid an insurance ; ano 
ais interest in the insurance passes to the person taking hit 
interest in the thing insured. 

§ 2557. A transfer of interest by one of several partners, 
ioint owners, or owners in common, who are jointly insured, 
|o the others, does not avoid an insurance^ even though it has 
23 



f§ 25 58- 2663 iitbubjlncb. 9S0 

been agreed that the insurance shall cease upon an alienados 
of the thing insured. 

§ 2668. 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 interetit, and every pohcy ex- 
ecuted by way of gaming or wagering, is void. [In eflfed 
July 1, 1874.) 

ARTICLE V. 

CONCEALMENT AND BEPBBSENTATIONB. 

iMBOir 2561. Concealment, what. 

2562. Effect of concealment. 
2568. What must be disci oKed. 

2564. Matters which need not be communicated withovt kl 

quiry. 

2565. Test of materiality. 

2566. Matters which each is bound to know 

2567. Waiver of communication. 

2568. Interest of insured. 

2569. Fraudulent warranty. 

2570. Matters of opinion. 

2571. Representation, what. 

2572. When made. 
2578. How interpreted. 

2574. Representation as to f utuxv. 

2575. How may affect policy. 

2576. \^en may be withdrawn. 

2577. Time intended by representation. 

2578. Representing information. 

2579. Falsity. 

2580. Effect of falsity. 

2581. Materiality. 

2582. Application of proTisions of this article. 
2588. Right to rescind. 

§ 2661. A neglect to communicate that which a party 
knows, and ought to communicate, is called a concealment. 

§ 2662. A concealment, whether intentional or uninten 
tional, entitles the injured party to rescind a contract of insuf 
ance. 

§ 2563. Each party to a contract of insurance mast com 
inanicate to the other, in good faith, all facts within his knowl 
idg« which are or which he believes to be material to the co» 



)61 IHSURANGB. §§ 2564-2670 

bract, and which the other has not the means of ascertaining, 
and as to which he makes no warranty. 

§ 2664. Neither party to a contract of insurance is honiid 
to communicate information of the matters following, excepi 
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 m^ 
pose liim ignorant ; 

3. Those of which the other waives communication ; 

4. Those which prove or tend to prove the existence of a 
risk excluded by a warranty, and which are not otherwise 
material; and, 

6. Those which relate to a risk excepted from the policy, 
and which are not otherwise material. 

f 2565. 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 form- 
ing his estimate of the disadvantages of the proposed con tracts 
or in making his inquiries. 

§ 2666. Each party to a contract of insurance is bonnd to 
know all the general causes which are open to his inquiry, 
equaUy with that of the other, and which may affect either 
the political or material perils contemplated ; and all general 
osages of trade. 

§ 2567. 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. 

§ 2668. Information of the nature or amount of the inter- 
est of one insured need not be communicated unless in answer 
V} an inquiry, except as prescribed by section 2587. 

§ 2669. An intentional and fraudulent omission, on tho 
part of one insured, to communicate information of matters 
proving or tending to prove the falsity of a warranty, entitles 
Uie insurer to rescind. 



§ 2670. Neither party to a contract o?*^A^^Vic^Fl)Ound 



f§ 2571-2681 IMSUBANCB. 359 

to communicate, even upon iBquiry, inform ation of his own 
judgment upon the matters in question. 

§ 2671. A representation may be oral or written. 

§ 2672. A representation may be made at the same tiui« 
with issuing the policy, or before it. 

§ 2573. The langnage of a representation is to be inter- 
preted by the same rules as the language of contracts in gen- 
eral. 

§ 2674. A representation as to the future is to be deemed 
e promise, unless it appears that it was merely a statement of 
oelief or expectation. 

§ 2675. A representation cannot be allowed to qualify an 
f.xprcss provision in a contract of insurance ; but it may qual- 
ify an implied warranty. 

§ 2676. A representation may be altered or withdrawn 
before the insurance is effected, but not afterwards. 

§ 2577. The completion of the contract of insurance if 
the time to which a representation must be presumed to refer. 

§ 2678. When a person insured has no personal knowl- 
edge of a fact, he may nevertheless repeat information which 
he nas upon the subject, and which he believes to be tme, with 
the explanation that he does so on the information of others, 
or he may submit the information, in its whole extent, to the 
insurer; and in neither case is he responsible for its truth, un- 
less it proceeds from an agent of the insured, whose duty it ii 
to give the intelligence. 

§ 2679. A representation is to be deemed false when the 
facts tail to correspond with its assertions or stipulations. 

§ 2580. If a representation is false in a material point 
whether affirmative or promissory, the injured party is on 
tilled to rescind the contract from the time when the repi^eeeo 
tation becomes false. 

§ 2581. The materiality of a representation is detemdii^C 
1/ the same rule aa the materiality of a eoiieiulmeut. 



158 INSUBANCE. §§ 2582-2669 

§ 2682. The provisioofl of this article apply as well to a 
modification of a contract of insurance as to its original for- 
mation. 

§ 2688. Whenever a right to rescind a contract of insnr* 
Rnce is given to the insurer by any provision of this chapter, 
such right may he exercised at any time previous to the com 
men cement of an action on the contract. [In effect July 1. 
1874.] 

ARTICLE VI. 

THB POLICY. 

Baanov 2586. Policy, what. 

2687. What must be specified in a polley. 

2588. Whose interest is covered. 

2589. Insurance bj 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, wluit. 

2598. Effect of receipt. 

2599 Agreement not to transfer. 

§ 2586. The written instrument, in which a contract of in 
lurance is set forth, is called a policy of insurance. 

§ 2687. A policy of insurance must specify : 

1 . The parties between whom the contract is made ; 

2. The rate of premium ; 

8. The property or life insured ; 

4. The interest of the insured in property insured, if he if 
not the absolute owner thereof; 

5. The risks insured against ; and, 

6.' The period during which the insurance is to continue. 

§ 2688. When the name of the person intended to be in- 
jured is specified in a policy, it can be applied only to his own 
proper interest. 

§ 2589. When an insurance is made by an agent or trus- 
tee, the fact tluit his principal or beneficiary is tjie person 



S§ 2690-2698 insurancs. 8&i 

really insured may be indicated by describing him as agem 
or trustee, or by other general words in the policy. 

§ 2690. 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 sach as are applicable to the joint or common 
interest. 

§ 2691. When the description of the insured in a policy 
is 80 general that it may comprehend any person or any clasf 
of persons, he only can claim the benefit of the policy who 
f;an show that it was intended to include him. 

§ 2692. A policy may be so framed that it will ennre to 
the benefit of whomsoever, during the continuance of the 
risk, may become the owner of the interest insured. 

§ 2693. The mere transfer of a thing insured doe» not 
transfer the policy, but suspends it until the same person be- 
comes the owner of both the policy and the thing insured. 

§ 2694. A policy is either open or valued. 

§ 2696. 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. 

§ 2696. A valued policy is one which expresses on its face 
an agreement that the thing insured shall be valued at a spe- 
cified sum. 

§ 2697. A running policy is one which contemplates suc- 
cessive insurances, and which provides that the object of the 
policy may be from time to time deHued, especially as to the 
!iiil)jects of insurance, by additional statements or indorse 
meiits. 

§ 2698. An acknowledgment in a policy of the receipt of 
{premium is conclusive evidence of its payment, so far as tc 
muke the policy binding, notwithstanding any stipulation 
there: u that it shall not be binding until the premium is act 
aally paid. 

Digitized by VjOOQIC 



IA5 iNSusANCB. §§ 2599-2609 

§ 2699. An agreement made before a Iubs, not to transfer 
^he claim of a person insured against the insurer^ after th« 
^Mss has happened, is void. 



ARTICLE VII. 

WASRANTIBS. 

8MTXov200a Warranty, ezpieM or impUfld. 
2604. Form. 
2606. Wamntjt in what contained. 

2606. Past, present, and future warvanties. 

2607. Warranty as to past or present. 

2608. Warranty as to the future. 

2609. Performance excused. 

2610. What acts avoid the policy. 

2611. Policy may proTlde for aroidaaoe. 

2612. Breach without fraud. 

§ 2608. A warranty is either express or implied. 

§ 2604. No particular form of words is necessary to create 
% warranty. 

§ 2606. Every express warranty, made at or before the 
execution of a policy, must be contained in the policy itself, 
or in another instrument signed by the insured, and referred 
to in the policy, as making a part of it. [In effect July 1, 
1874.] 

§ 2606. A warranty may relate to the past, the present, 
the future, or to any or all of these. 

§ 2607. A statement in a policy, of a matter relating to 
the person or thing insured, or to the risk, as a fact, is an ex- 
press warranty thereof. 

§ 2608. A statement in a policy, which imports that it is 
Intended to do or not to do a thing which materially affects 
.he risk, is a warranty that such act or omission shall take 
^lace. 

§ 2609. When before the time arrives for the perform 
%nce of a warranty relating to the future, a loss insured 
•gaisst happens, or performance becomes unlawfiU at thfl 



|§ 2610-2618 IN8UBAKCB. S56 

place of the contract, or impossible, the omission mC fulfil the 
j^rranty does not avoid the policy. [In effect July 1, 1874. J 

§ 2610. The violation of a material warranty, or othei 
material provision of a policy, on the part of either part} 
thereto, entitles the other to rescind. 

§ 2611. A policy may declare that a violation of specifieo 
provisions thereof shall avoid it, otherwise the breach of an 
immaterial provision does not avoid the policy. 

§ 2612. A breach of warranty, without fraud, merely ex- 
onerates an insurer from the time that it occura, or where it is 
broken in its inception prevents the policy from attaching to 
the risk. 

ARTICLE VIII. 

PREMIUM. 

SscnOK 2616. When premium is earned. 

2617. Return of premium. 

2618. When none allowed. 

2619. Return for fraud. 

2620. Oyer-insurance by several insnreri. 

2621. Contribution. 

2622. Proportionate contribution. 

§ 2616. An insurer is entitled to payment of the premiam 
as soon as the thing insured is exposed to the peril insured 
against. 

§ 2617. A person insured is entitled to a return of pre- 
mium, as follows : 

1. To the whole premium, if no part of his interest in the 
things 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 proportion 
of the premium as corresponds with the unexpired time, after 
dcductmg from the whole premium any claim for loss or dam 
age under the policv which has previously accrued. I In effcci 
July 1, 1874.] 

§ 2618. If a peril insured against has existed, and the itt 
lurer has been liable for any period, however short, the insured 
m not entitled to return of premiums, so far as that particiUaf 
twk 18 concerned. [In effect July 1, 1874.] GooqIc 



•57 INSURANCE. i5§ 2619-2627 

§ 2619. A person insured is entitled to a retam of the 
oremium when the contract is voidable, on account of the 
fraud or misrepresentation of the insurer, or on account of 
facts, of the existence of which the insured was ignorant with- 
out his fault ; or when, by any default of the insured other 
than actual fraud, the insurer never incurred any liability 
under the policy. 

§ 2620. In case of an over-insurance by several insurers, 
the insured is entitled to a ratable return of the premium, 
proportioned to the amount by which the aggregate sum in- 
sured in all the policies exceeds the insurable value of the 
thing at risk. 

§ 2621. When an over-insurance is effected by simultane- 
ous policies, the insurers contribute to the premium to be re- 
turned in proportion to the amount insured oy their respective 
policies. 

§ 2622. When an over-insurance is effected by successive 
I policies, tliose only contribute to a return of the premium who 
are exonerated by prior insurances from the liability assumed 
by them, and in proportion as the sum for which the premium 
was paid exceeds the amount for which, on account of prior 
insurance, they could be made liable. 



ARTICLE IX. 



SnmoH 2626. Perils, remote and proximftte. 

2627. Loss incurred in rescue from peril. 

2628. Excepted perils. 

2629. Negligence and fraud. 

§ 2626. An insurer is liable for a loss of which a peril in- 
lared against was the proximate cause ; altnough a peril not 
contemplated by the contract may have been a remote cause 
of the loss ; but he is not liable for a loss of which the peril 
insured against was only a remote cause. 

§ 2627. An insurer is liable where the thing insured if 
|»cned from a perii insured against, that would otherwise 
%jive caused a loss, if in the course of such rescue the^hing if 



f§ 2628-2636 insurancb. 35b 

exposed to a peril not insured against, which permanently de- 
prives the insured of its possession, in whole or in part ; or 
where a loss is caused by efforts to rescue the thing insure i 
from a peril insured against. 

§ 2628. Where a peril is specially excepted in a contract 
of iusurance, a loss, which would not have occurred but for 
such peril, is thereby excepted ; although the immediate cause 
of the loss was a peril which was not excepted. 

§ 2629. An insurer is not liable for a loss caused by the 
wilful act of the insured ; but he is not exonerated by the 
negligence of the insured, or of his agents or others. [In 
effect July 1, 1874] 

ARTICLE X. 

KOTICB OF LOSS. 

SBonoN 2638. Notice of Iosa. 

2634. Preliminary proofs. 

2635. Waivers of defects in notice, &o. 

2636. Waiver of delay. 

2687. Certificate, wiien dispensed with. 

§ 2633. In case of loss upon an insurance against fire, 
an insurer is exonerated, if notice thereof be not given to 
him by some person insured, or entitled to the benefit of the 
insurance, without unnecessary delay. [In effect July 1, 
1874.] 

§ 2634. When preliminary proof of loss is required by a 
policy, cbe insured is not bound to give such proof as would 
be necessary in a court of justice ; but it is sufficient for him 
to give the best evidence which he has in his power at tb« 
time. 

§ 2635. All defects in a notice of loss, or in preliminary 
proof thereof which the insured might remedy, and which the 
insurer omits to specify to him. without unnecessary delay, aa 
grounds of objection, are waived. 

§ 2636. Delay in the presentation to an insurer of notice 
or proof of loss is waived, if caused by any act of his, or it 
^e omits to make ol:»jection promptly and specifically 'Upoi 
that groand. 



B59 INSUBANCB. §§ 2637-2642 

§ 2637. If a policy requires, by way of preliminary proof 
of loss, the certificate or testimony of a person other than the 
insured, it is sufficient for the insured to nse reasonable dili- 
g^ence to procure it, and in case of the refusal of such person 
to give it, then to furnish reasonable evidence to the insurer 
that such refusal was not induced by any just grounds (^ dis- 
belief in the facts necessary to be certified. 
Pretenting false proofs for Policies PeiuJ Code, $ 649. 



ARTICLE XL 

DOUBLE IN8UBANCB. 

SSOTION 2641. Doable iiuniraiictt. 

2642. Coutribution in case of double insuru^ee. 

§ 2641. A double insurance exists where the same person 
IB insured by several insurers separately in respect to the same 
■ubject and interest. 

§ 2642. In case of double insurance, the several insurers 
are liable to pay losses thereon as follows : 

1. In fire msurance, 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 pol- 
icies 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 6f the loss over the 
amount of all previous policies on the same interest. If two 
Tr more policies bear date upon the same day, they are deemed 
to be simultaneous, and the liability of insurers on simultane- 
ous policies is to contribute ratably with each other. The m- 
solvency of any of the insurers does not aflRect the proporticn 
ate liability of the other insurers. The liability of all insur 
en on the 'same marine interest for a partial or average loss iJ 
to contribute ratably. [In effect July 1, 1874. J 



,y Google 



K 2646-2649 inscbancb. atO 

ARTICLE XII. 

BEINSURANOB. 

8>onov 2616. Reinsurance, what. 

2647. Disclosures required. 

2648. Reinsurance presumed to be agaiuBt Uabllitj. 

2649. Original insured has no interedC. 

§ 2646. A contract of reinsurance is one hj which an in- 
rarer procures a third person to insure him against loss oi 
liability by reason of such original insurance. 

§ 2647. Where an insurer obtains reinsurance, he most 
eommunicate all the representations of the original insured, 
and also all the knowledge and information he possesses, 
whether previously or subsequently acquired, which are mate- 
rial to the risk. 

§ 2648. A reinsurance is presumed to be a contract ol 
indemnity against liability, and not merely against damage. 

§ 2649. The original insured has no interest in a oontrae* 
of reinsurance. 



CHAPTER IL 
MABINB INSUBANCB. 
Amnou I. Difinition of MAEinc Iksuranoi. § 2666. 

II. INSU&ABLB INTBRBST, §§ 2669-2666. 

ni Concealment §$2669-2672. 
IV. Representations, §§ 2676-2677. 
y. IMPUED Warranties, §§ 2681-2688. 
yi. Thi Votaob, and Deviation, §§ 2692-9801. 
VII. Loss, §§ 2701-2712. 
Till. Abandonment, §§ 2716-2732. 

JZ. MXASURK OP iNDEMIflTT, §§ 2786-2716. 



,y Google 



Ml iNSURAKCB. §§ 2656-2668 

ARTICLE I. 

DEFINITION DF MARINE INSURANOB. 

SxoTiON 2656. Marine insurance, what. 

§ 2666. Marine insurance is an insurance against riaki 
eonnected with navigation, to which a ship, cargo, freightage, 
profits, or other insurable interest in movable propertj, may 
oc exposed during a certain voyage or a fixed period of time. 

ARTICLE n. 

INSURABLE INTEREST. 

SwmON 2659. Iiuraisble interest in a shlfk. ' 

2660. Interest reduced by bottomry 
2661: Freightage, what. 

2662. Expected freightage. 

2663. IntereHt in expected freightage, what, 

2664. Insurable interest in profits. 

2665. Insurable interest of cliarterer. 

§ 2669. 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. 

§ 2660. The insurable interest of the owner of a ship 
hypothecated by bottomry is only the excess of its value over 
the amount secured by bottomry. 

§ 2661. Freightage, in the sense of a policy of marine 
insurance, siirnifies all the benefit derived by the owner, 
either from the chartering of the ship or its employment for 
the carriage of his own goods or those of others. 

§ 2662. The owner of a ship has an insurable interest in 
expected freightage which he would have certainly earned 
bat for the inteiTention of a peril insured agamst. 

§ 2663. The interest mentioned in the last section exists, 
m 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 boarri, og 
Aiere is some contract for putting them on board, and both 
«hip and goods are ready for the specified voyage. 



§§ 2664-2672 insubancb. %^S 

§ 2664. Odo who has an interest in the thing frcm '^hich 
profits are expected to proceed, has an insurable inter<^-st in 
the profits. 

§ 2685. The charterer of a ship has an insurable interesl 
tn it, to the extent that he is liable to be damnified by itr 



ARTICLE III. 

CONCEALMEKT. 

BMOnos 2669. Information muBt be communicated 

2670. Material infonpation. 

2671. PfPftumption of knowlec^e of loM. 

2672. Concealments which only affect the risk in questkm. 

§ 2€(/39. In marine insurance each partj is bound to com- 
municate, in addition to what is required by section 2563, all 
the information which he possesses, material to the risk, ex- 
cept such as is mentioned in section 2564, and to state the 
exact and whole truth in relation to all matters that he repre- 
sents, or upon. inquiry assumes to disclose. 

§ 2670. In marine insurance, information of the belief or 
expectation of a third person, in reference to a material fact, 
is material. 

§ 2671. A person insured by a contract of marine insur- 
ance is presumed to have had knowledge, at the time of in- 
luring, of a prior loss, if the information might possibly have 
reached him in the usnal mode of transmission, and at the 
usual rate of communication. 

§ 2672. A concealment in a marine insurance, in respect 
to any of the following matters, does not vitiate the entire 
contract, but merely exonerates the insurer from a loss re- 
suiting from the risk concealed : 

1. The national character of the insured; 

2. The liability of the thing insured to capture and deten 
kion; 

8. The liability to seizure from breach of foreign lawi o 
trade; 
4. The want of necessary documents ; and, 
6. The Qie of false and simulated papers. ^ , 

ugitizedbyLiOOgle 



•it INSURAKOB. §§ 26 76-268 d 

ARTICLE IV. 

SBPRBBENT ATI OKB. 

Ssonov 2676. Effect of intentional falsity. 

2677. Representation of expectaUoB. 

§ 2676. If a representation, by a person insured by a <»t- 
tract of marine insurance, is intentionally false in any respect, 
whether material or immaterial, the insurer may rescind the 
entire contract. 

§ 2677. The eventual falsity of a representation as to ex* 
pectation does not, in the absence of fraud, avoid a contract 
Uf insurance. 

ARTICLE V. 

IMPLIED WARBANTIBS. 

iMnOH 2681. Warranty of seaworthiness. 

2682. Seaworthiness, what. 

2683. At what time seaworthiness must exist. 

2684. What things are required to constitute seaworthiness. 

2685. Bifferent degrees of seaworthiness at different stages of 0m 

Toyage. 

2686. Unseaworthiness during the Toyage. 

2687. Seaworthiness for purposes of insurance on cargo. 

2688. Neutral papers. 

^ 2681. In every marine insurance upon a ship oi freight, 
or *^reightage, or upon anything which is the subject of marine 
insurance, a warranty is implied that the ship is seaworthy. 
[In effect July 1, 1874.] 

§ 2682. A ship is seaworthy, when reasonably fit to per- 
form the sei-vices, and to encounter the ordinary perils of the 
voyage, contemplated by the parties to the policy. 

§ 2683. An implied warranty of seaworthiness is complied 
with if the ship be seaworthy at the time of the commence- 
ment of the risk, except in the following cases : 

1. When the insurance is made for a specified length of 
time, the implied warranty is not complied with unless the 
•hip be seaworthy at the commencement of every voyage she 
nay undertake during that time • and, digitized by GooqIc 



S§ 2684-2688 iksuranob. 864 

2. When the insnrance is upon the cargo, which, hj th€ 
terms of the policy, or the description of the voyage, or the 
established custom of the trade, is to be transshipped at an in- 
tennediate port, the implied warranty is not complied with, 
unless each vessel upon which the cargo is shipped or trans- 
shipped be seaworthy at the commencement of its particulai 
voyage. [In eflfect July 1, 1874.] 

§ 2684. A warranty of seaworthiness extends not only to 
the condition of the structure of the ship itself, but requires 
that it be properly laden, and provided with a competent mas- 
ter, a sufiScient number of competent officers and seamen, and 
the requisite appurtenances and equipments, such as ballast, 
cables, and anchors, cordage and sails, food, water, fuel, and 
lights, and other necessary or proper stores and implements 
for the voyage. 

§ 2686. Where diflTerent portions of the voyage contem- 
plated by a policy differ in respect to the things requisite to 
make the ship seaworthy therefor, a warranty of seaworthiness 
is complied with if, at the commencement of each portion, the 
ship is seaworthy with reference to that portion. 

§ 2686. When a ship becomes unseaworthy during the 
voyage to which an insurance relates, an unreasonable delay 
in repairing the defect exonerates the insurer from liability 
from any loss arising therefrom. 

§ 2687. A ship which is seaworthy for the purpose of an 
insurance upon the ship may, nevertheless, by reason of being 
unfitted to receive the cargo, be unseaworthy for the purpose 
of insurance upon the cai^. 

§ 2688. Where the nationality or neutrality of a ship ot 
cargo is expressly warranted, it is implied that the ship wiU 
carry the requisite documents to show such nationalitv or nen 
trality, and that it will not carry any documents w&ich ces 
reasonable suspicion thereon. 



,y Google 



iirsTJRAKCB. §§ 2692-2697 



ARTICLE VI. 

THB VOYAGE AND DBTIATIOH. 

8>onoN 2692. Voyage insured, how determined. 

2693. Course of sailing, liow determined. 

2694. Beriation, what. 

2695. When proper. 

2696. When improper. 

2697. Deviation exonerates the insurer 

§ 2692. When the voyage contemplated hj a policy is d«' 
icribed by tha places of beginning and ending, the Yoyage in 
sured is one which conforms to the coarse of sailing fixed by 
mercantile usage between those places. 

§ 2693. If the course of sailing is not fixed by mercantile 
nsage, the voyage insured by a policy is the way between the 
places specified which, to a master of ordinary skill and dis- 
cretion, would seem the most natural, direct, and advanta- 
geous. 

§ 2694. Deviation is a departure from the course of the 
voyage insured, mentioned in the last two sections, or an un- 
reasonable delay in pursuing the voyage, or the commenoe- 
mcnt of an entirely difierent voyage. 

§ 2695. A deviation is proper: 

1. When caused by circumstances over which neither the 
master nor the owner of the ship has any control ; 

2. When necessary to comply with a warranty, or to avoid 
ft peril, whether insured against or not ; 

3. When made in good faith, and upon reasonable ground! 
of belief in its necessity to avoid a peril ; or, 

4. When made in good faith, for the purpose of saving hu- 
man life, or relieving another vessel in distress. 

§ 2696. Every deviation not specified in the last section it 
Improper. 

I 2697. An insurer is not lia'bLj for any loss happening to 
1 thing insured subsequently to an improper deviation. 
24 

Digitized by VjOOQIC 



H 2701-2707 IHSUBAKOB. ass 

ARTICLE VIL 

LOSS. 

Bmmon 2701. Total and partial loss. 

2702. Partial loss. 

2703. Actual and construetire total loM. 
2701. Actual total loss, what. 

2705. ConstructiTe total loss. 

2706. Presumed actual loss. 

2707. Insurance on cargo, <&o., when Toyage is brokn IQi 

2708. Cost of reHhipment, &e. 

2709. When insured is entitled to payment. 

2710. Abandonment of goods on insurance of proAtf . 

2711. Arerage loss. 

2712. Insurance against total loss. 

§ 2701. A loss may be cither total or partial. 

§ 2702. Every loss which is not total is partial. 

§ 2703. A total loss may be either actual or constnietifVk 

t § 2704. An actual total loss is caused by : 

1. A total destruction of the thing insured ; 

2. The loss of the thing by sinking, or by being broken 
op; 

3. Any damage to the thing which renders it valueless to 
the owner for the purposes for which he held it ; or, 

4. Any other event which entirely deprives the owner of 
the possession, at the port of destmation, of the thing in- 
sured. 

§ 2706. A constructive total loss is one which gives to a 
person insured a right to abandon, under section 2717. 

§ 2706. An actual loss may be presumed from the contin- 
\icd absence of a ship without being heard of; and the length 
of time which is sufficient to raise this presumption dependf 
on the circumstances of the case. 

§ 2707. When a ship is prevented, at an intermediate port, 
from completing the voyage, by the perils insured against, th« 
master must make every exertion to procure, in the same of 
ft contiguous port, another ship, for the purpose of conveying 
ibe cargo to its destination ; and the liability of a marine m 



167 INSURANCE. §§ 2708-2711 

Bnrer thereon oontinaes after they are thus reshipped. [In 
effect July 1, 1874.] 

§ 2708. In addition to the liability meutioned in the last 
nction, a marine insurer is bound for damages, expenses of 
discharging, storage, reshipment, extra freightage, and all ' 
other expenses incurred in saving cargo reshipped pursuant to 
the last section, up to the amount insured. 

§ 2709. Upon an actual total loss, a person insured is «&• 
titled to payment without notice of abandonment. 

§ 2710 of said Code is repealed. [In effect July 1, 1874.] 

§ 2711. Where it has been agreed that an insurance upon 
ft particular thing or class of things shall be free from partic- 
ular average, a marine insurer is not liable for any particular 
average loss not depriving the insured of the possession, at the 
port of destination, of the whole of such thing, or class of 
things, even though it become entirely worthless, but he is 
liable for his proportion of all generd average loss assessed 
upon the thing insured. [In effect July 1, 1874.] 

.§ 2712. An insurance confined in terms to an actual total 
loss does not cover a constructive total loss, but covers any 
loss which necessarily results in depriving the insured oi the 
possession, at the port of destination, of the entire thing in- 
lured. [In effect July 1, 1874.] 

Duties and Authority of Port Wardens. Pol. Code, §§ 2601-2S11 



ARTICLE VIII. 

ABANDONMBNT. 

glonoir2716. Abandonment, what. 

2717. When insured may abandon. 

2718. Must be unqualified. 

2719. When may be made. 

2720. Abandonment may be defeated. 

2721. Ilowmade. 

2722. Requisites of notice. 

2723 No other cause can be relied on. 

2724. Effect. 

2726. Waiver of formal abandonment. 

2726 . Agents of the insured become agenti of the 

1727. Aeoeptance not necesgaxy. 



f§ 2716-2720 iNSUBANOB. 9611 

SiOfiON 2728. Acceptance conclusire. 

2729. Accepted abandonment, irrevocable. 

2730. Freightage, how affected by abandonment of ship. 

2731. Refusal to accept. 
2782. Omission to abandon. 

§ 2716. Abandonment is the act bj Avhich, after a co» 
Btructive total loss, a person insured by con Tact of marine 
insurance declares to the insurer that he relinquishes to him 
his interest in the thing insured. 

§ 2717. A person insured by a contract of marine insur- 
ance may abandon the thing insured, or any particular portion 
thereof separately valued by the policy, or otherwise sepa- 
rately insured, and recover for a total loss thereof, when the 
cause of the loss is a peril insured against : 

1. If more than half thereof in value is actually lost, or 
would have to be expended to recover it from the peril ; 

2. If it is injured to such an extent as to reduce its valae 
more than one half; 

3. If the thing insured, being a ship, the contemplated voy- 
age cannot be lawfully performed without incumng an ex- 
pense to the insured of more than half the value of the thing 
abandoned, or without incurring a risk which a prudent man 
would not take under the circumstances ; or, 

4. If the thing insured, being cargo or freightage, the voy- 
age cannot be performed nor an othership procured by the 
master, within a reasonable time and with reasonable diligence, 
to forward the cargo, without incurring the like expense or 
risk. But freightage cannot in any case be abandoned, on 
less the ship is also abandoned. 

§ 2718. An abandonment must be neither partial nor con 
ditional. 

§ 2719. An abandonment must be made within a reason 
able time after the information of the loss, and after the com- 
mencement of the voyage, and before the party abandoning 
has information of its completion. 

§ 2720. Where the information upon which an abandoiv 
tnent hiis been made proves incorrect, or the thing insured wai 
•o far restored w^hen the abandonment was made that then 
was then in fact no total loss, the abandonment becomes i» 
dieotaal. nr^i^n]o 



m ixBUBAKCB. §§ 2721-2730 

§ 2721. Abandonment is made by giving notice thereof U 
Ihe insurer, which may be done orally, or in writing. 

§ 2722. A notice of abandonment must be explicit, and 
must specify the particular cause of the abandonment, but 
need state only enough to show that there is probable cause 
therefor, and need not be accompanied with proof of interest 
or of loss. 

§ 2723. An abandonment can be sustained only upon tht 
cause specified in the notice thereof. 

§ 2724. An abandonment is equivalent to a transfer, hj 
the insured, of his interest, to the insurer, with all the chancel 
of recovery and indemnity. 

§ 2725. If a marine insurer pays for a loss as if it were an 
actual total loss, he is entitled to whatever may remain of the 
thing insured, or its proceeds or salvage, as if there had been 
a formal abandonment. 

§ 2726. Upon an abandonment, acts done in good faith 
by those who were agents of the insured in respect to the thing 
insured, subsequent to the loss, are at the risk of the insurer, 
and for his benefit. 

§ 2727. An acceptance of an abandonment is not necessaiy 
to the rights of the insured, and is not to be presumed from 
the mere silence of the insurer, upon his receiving notice ^4, 
abandonment. 

§ 2728. The acceptance of an abandonment, whether es< 
press or implied, is conclusive upon the parties, and admits the 
loss and the sufficiency of t je abandonment. 

§ 2729. An abandonment once made and accepted is 
irrevocable, unless the ground upon which it was made proves 
to be unfounded. 

§ 2730. On an accepted abandonment of a ship, freight- 
age earned previous to the lOss belongs to the insurer thereof ; 
but freightage subsequently earned l^ion8:s to the insurer o| 
teihip. 

Digitized by VjOOQIC 



§§2731-2738 insubancb. 370 

§2731. If an insarer refuses to accept a valid abfndon- 
meiit, he is liable as upon an actual total loss, deducting from 
the amount any proceeds of the thing insured which may hare 
eome to the hands of the insured. 

§ 2732. If a person insured omits to abandon, he maj 
nevertheless recover his actual loss. 
Duties ud Authority of Port Wardens. PoUt. Code, §§ 2501-2611. 



ARTICLE IX. 

MEASURE OF INDEMNITT. 

SiCTiON 2736. Valuation, when conclusive 

2737. Partial loss. 

2738. Profits. 

2739. Valuation apportioned. 

2740. Valuation applied to profits. 

2741. Estimating loss under an open poUey. 

2742. Arrival of thing damaged. 

2743. Labor and expenses. 

2744. General average. 

2745. Contribution. 

2746. One third new for old. 

§ 2736. A valuation in a policy of marine insurance If 
conclusive between the parties thereto in the adjustment ol 
either a partial or total loss, if the insured has some interest 
at risk, and there is no fraud on his part ; except that when a 
thing has been hypothecated by bottomry or respondentia, 
before its insurance, and without the knowledge of the person 
actually procuring the insurance, he may show the real value. 
But a valuation fraudulent in fact entitles the insurer to re- 
scind the contract. 

§ 2737. A marine insurer is liable upon a partial loss, 
only for such proportion of the amount insured by him as the 
loss bears to tne value of the whole interest of the insured in 
the property insured. 

§ 2738. Where profits are separately insured in a con 
ttact of marine insurance, the insured is entitled to recover 
\n case of loss, a proportion of such profits equivalent to tht 
proportion which the value of the property lost bean to tbt 
valoa of the whole. 

Digitized by VjOOQIC 



571 iNSUBANCB. §§ 2739-2744 

I 2789. In case of a valued policy of marine ingurance on 
freightage or car^'O, if a part only of the subject ia exposed to 
risk, the valuation applies onlj in proportion to such part. 

§ 2740. When profits are valued and insured by a con- 
tract of marine insurance, a loss of them is conclusively pre- 
sumed from a loss of the property oat of which they were ex- 
pected to arise, and the valuation fixes their amount. 

§ 2741. In estimating a loss under an open policy of 
marine insurance, the following rules are to be observed : 

1. The value of a ship is its value at the beginning of the 
risk, including all articles or charges which add to its perma- 
nent value, or which are necessary to prepare it ibr the voyag-^ 
insured ; 

2. The value of cargo is its actual cost to the insured, 
when laden on board, or where that cost cannot be ascer- 
tained, its market value at the time and place of lading, add- 
ing the charges incurred in purchasing and placing it on 
b<^rd, but without reference to any losses incurred in raisina: 
money for its purchase, or to any drawback on its exportation, 
or to the fluctuations of the market at the port of destination, 
or to expenses incurred on the way or on arrival ; 

3. The value of freightage is the gross freightage, exclu- 
live of primage, without reference to the cost of earning it ; 
and, 

4. The cost of insurance is in each case to be added to the 
value thus estimated. 

§ 2742. If cargo insured against partial loss arrives at the 
port of destination in a damaged condition, the loss of the in- 
sured is deemed to be the same proportion of the value which 
the market price at that port, of the thing so damaged, bears 
to the market price it would have brought if sound. 

§ 2743. A marine insurer is liable for all the expense at* 
tendant upon a loss which forces the ship into port to be re- 
paired ; and where it is agreed that the insured mav labor for 
the recovery of the property, the insurer is liable for the ex- 
pense incurred thereby, such expense, in either case, being in 
addition to a total loss, if that afterwards occurs. 

§ 2744. A marine insurer i& liable for a loss falling upon 
•he insured, through a contribution in respect to the thing in< 



{§ 2745-2764 inbubancs. $7% 

inred, required to be made by him towards a geneial arerage 
loss called for by a peril insured against. 

§ 2746. Where a person insured by a contract of marin« 
hisurance has a demand against others for contribution, he 
may claim the whole loss from the insurer, subrogating him 
to his own right to contribution. Bat no such claim can be 
made upon the insurer after the separation of the interesti 
liable to contribution, nor when the insured, having the right 
and opportunity to enforce contribution from others, haa 
neglected or waived the exercise of that right. [In effect July 
1, 1874.] 

§ 2746. In the case of a partial loss of a ship or its equip- 
ments, the old materials are to be applied towards pa;|rnienl 
for the new, and whether the ship is new or old, a marine in- 
surer is b'able for only two thirds of the remaining cost of 
the repairs, except that he must pay for anchors and cannon 
in full, and for sheathing metal at a depreciation of only two 
and one half percent, for each month that it has been fastened 
to the ship. 

Pol Code, § 2507 



CHAPTER III. 

FIBE INSURANCE. 

Baonoir2762. False representation. (Repealed 

2753. Alteration increasing risk. 

2754. Alteration not increasing risk. 
2756. Act! of the insured. 

2756. Measure of indemnity. 

§ 2752 of said Code is repealed. [In effect July 1, 1874.] 

{ 2763. An alteration in the use or condition of a thing 
insured from that to which it is limited by the policy, made 
without the consent of the insurer, by means within the con- 
Tol of the Insured, and increasing the risk, entitles an insurei 
to rescind a contract of fire insurance. 

§ 2764. An alteration in the use or condition of a thing 
UiBared from that to which it is limited by the policy, whici 



S73 ivsuRANCB. §§ 2766-2764 

does not increase tie risk, does not affect a contract of fire 
insurance. ^ 

§ 2766. A 'contract of fire insurance is not affected by 
any act of the insured subsequent to the execution of the 
policy, which does not violate its provisions, even though 't 
lucreases the risk and is the cause of a loss. 



§ 2766. If there is no valuation in the policy, the 
lire of indemnity in an insurance against lire is the expense, 
at the time that the loss is payable, of replacing the thing 
lost or injured in the condition in which it was at the time of 
the injury ; but the effect of a valuation in a policy of fire in- 
inrance is the same as iu a policy of marine insurance. 



CHAPTER IV. 
LIFE AND HEALTH INSUBANCB. 

BlOTiov 2762. Insurance upon life, when payable. 

2763. Insurable interest. 

2764. Assignee. &c., nf life policy need have no intezcBt. 
2766. Notice of transfer. 

2766. Measure of indemnity. 

§ 2762. An insurance upon life may be made payable on 
the death of the person, or on his surviving a specified period, 
or periodically so long as he shall live, or otherwise contin- 
gently on the continuance or determination of life. 

§ 2763. Every person has an insurable interest in the life 
and health : 

1. Of himself; 

2. Of any person on whom he depends wholly or in plirt for 
edncation or support; 

3. Of any person under a legal obligation to him for the 
payment of money, or respecting property or services, of 
which death or illness might delay or prevent the perform- 
ance; and, 

4. Of any peraon upon whose life any estate or interest 
rested in him depends. 

I 2764. A policy of insurance upon life or health may 



{§ 2766-2774 ihdshnitt. «74 

pass hj tcansfer, will, or succession to any person, whether hi 
nas an insurable interest or not, and sucn person may recovei 
upon it whatever the insured might have recovered. 

§ 2766. Notice to an insurer of a transfer or bequest 
thereof is not necessary to preserve the validity of a policy of 
insurance upon life or health, unless thereby expressly re> 
quired. 

§ 2766. Unless the interest of a person insured is suscep- 
tible of exact pecuniary measurement, the measure of indem- 
nity under a policy of insurance upon life or health is the 
sum fixed in the policy. 



TITLE XIL 

INDEMNITY. 

Iionoir 2772. Indemnity, what. 

2778. Indemnity for a future wrongful act void. 

2774. Indemnity for a past wrongful act valid. 

2775. Indemnity extends to acts of agents. 

2776. Indemnity to several. 

2777. Person indemnifying liable jointly or severally with 

indemnified. 

2778. Rules for interpreting agreement of indemnity. 

2779. When person indemnifying is a surety. 

2780. Bail, what. 

2781. Uow regulated. 

§ 2772. Indemnity is a contract by which one engages to 
«ave another from a legal consequence of the conduct of one 
of the parties, or of some other person. 

§ 2773. An agreement to indemnify a person against ac 
net thereafter to be done is void, if the act be known by 
inch person, at the time of doing it, to be unlawful. [In 
sffect July 1, 1874.] 

§ 2774. An agreement to indemnify a person aeainst aa 
«ct already done is valid, even though the act was known tf 
W wrongful, unless it was a felonj. 

Digitized by VjOOQIC 



175 INDEMNITY. §§ 2775-2778 

§ 2775. An agreement to indemnify against the*acts of a 
eertain person applies not onl^ to his acts and their conse- 
quences, but also to those of his agents. 

§ 2776. An agreement to indemnify several persons ap* 
plies to each, unless a contrary intention appears. 

§ 2777. One who indemnifies another against an act to 
be done by the latter, is liable jointly with the person indem- 
nified, and separately to every person injured by such act. 

§ 2778. In the interpretation of a contract of indenmity, 
the following rules are to be applied, unless a contrary inten- 
tion appears * 

1. Upon an indemnity against liabilitjr, 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 payment 
thereof; 

3. An indemnity against claims, or demands, or liability, 
expressly, or in other equivalent terms, embraces the costs of 
defence against such claims, demands, or liability incurred in 
good faith, and in the exercise of a reasonable discretion ; 

4. The person indemnifying is bound, on request of the per- 
son indemnified, to defend actions or proceedings brought 
against the latter in respect to the matters embraced by the 
indemnity, but the person indemnified has the right to conduct 
such defences, if he chooses to do so ; 

5. If, after request, the person indemnifying neglects to 
defend the pei-son indemnined, a recovery against the latter, 
suffered by him in good faith, is conclusive in his favor against 
the former ; 

6. If the person indemnifying, whether he is a principal or 
a surety in the agreement, has not reasonable notice of the 
action or proceeding against the person indemnified, or is not 
allowed to control its defence, judgment against the latter is 
only presumptive evidence against the former ; 

7. A stipulation that a judgment against the person indem 
nified shall be conclusive upon the person indemnifying, is in. 
applicable if he had a good defence upon the merits, which b^ 
want of ordinary care he failed to establish in the action. 

67Cai. 50. n^^^]^ 

Digitized by VjOOQIc 



§§ 2779-2787 guaranty. 871 

§ 2779. Where one, at the request of another, engages to 
iinsnrer in damages, whether liquidated or unliquidated, fof 
Rny 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. 

*c* § 2780. Upon those contracts of indemnity which are 

* taken in legal proceedings as security for the performance ol 

an obligation imposed or declared by the tribunals, and known 

as undertakings or recognizances, the sureties are called bail. 

§ 2781. The obligations of bail are governed by the Btat 
ates specially applicable thereto. 



TITLE XIII. 
GUARANTY. 



Chapter I. Guaranty in General, §§ 2787-2895. 
II. SuRKTYSHiP, §§2831-2866. 



CHAPTER I. 
GUARANTY IN GENERAL. 

ABincu I. BsFmrnoN of Guaranty, §§ 2787-2788. 
II. Creation op Guaranty, §f 2792-2796. 
m. Interpretation of Guaranty, §| 2799-2802. 
lY. Liability of Guarantors, |§ 2806-2810. 
V. Continuing Guaranty, §§ 2814-2815. 
VI. Exoneration of Guarantors, §§ 2819-2826 

ARTICLE I. 

DEFINITION OP GUARANTT. 

|lonoN2787. Guaranty, what. 

2788. Knowledge of principal not necessary to ereati(m of goaft 
anty. 

I 2787. A puarantY is a promise to answer for the dcbl 
teftmit, or miscarriage of another person. r^ i 

V uigitizedbyV^OOgle 



177 ouABANTT. §§ 2788-2784 

§ 2788. A person may become guarantor eyen withoat 

the knowledge or consent of the principal. 



ARTICLE II 

CKEATION OP GDAKANT^ 

Ibotioh 2792. Necessity of a consideration 

2798. Guaranty to be in writing, &c. 

2794. Engagement to answer for obligation of another, 

deemed original. 

2795. Acceptance of guaranty 

§ 2792. Where a guaranty is entered into at the same 
time with the original obligation, or with the acce|)rance of 
the latter by the guarantee, and forms with that obligation a 
port of the consideration to him, no other consideration need 
exist. In all other cases there must be a consideration dis- 
tinct from that of the original obligation. 

§ 2793. Except as prescribed by the next section, a guar- 
anty must be in writing, and signed by the gnaranior^ but 
the writing need not express a consideration. 

§ 2794. A promise to answer for the obligation of an* 
other, in any of the following cases, is deemed an original 
obligation o^ the promisor, and need not be in writing : 

1. Where the promise is made by one who has received 
property of another upon an undertaking^ to apply it pursuant 
to such promise ; or by one who has received a discharge from 
an obligation in whole or in part, in consideration of such 
promise ; 

2. Where the creditor parts with value, or enters into an 
obligation, in consideration of the obligation in respect to 
which the promise is made, in terms or under circumstances 
such as to render the party making the promise the principal 
febtor, and the person in whose behalf it is made, his surety ; 

3. Where the promise, being for an antecedent obligation of 
another, is made upon the consideration that the party re- 
leivinf!: it cancels the antecedent obligation, accepting the new 
promise as a substitute therefor; or upon the consideration 
that the party receiving it releases the property of another 
rom a levy, or his person from imprisonment und'er an execu 
lion on a judgment obtained upon the antecedent obligation 
H Qpon a consideration benehcial to the promisor, wheth«v 



{§ 2796-2802 ouakantt. 97^ 

t 

moving from either partj to the antecedent obligation, oi 
from another person ; 

4. Where a factor undertakes, for a commission, to sell mer 
chandise and guaranty the sale ; 

5. Where the holder of an instrument for the payment ol 
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 trannk 
fer enters into a promise respecting such instrument. 

Oode Civ. Proc. § 1473. 

§ 2796. A mere offer to guaranty is not binding, until 
notice of its acceptance is communicated by the ^arantee to 
Ihe guarantor; but an absolute guaranty is bindmg "vpon tho 
guarantor without notice of acceptance. 



ARTICLE in. 

4 

INTEBPBETATION OF OUABAJfTT. 

2799. Onaranty of incomplete contract. 

2800. Quaranty that an obligation is good or oolleettblt 

2801. Recovery upon such guaranty. 

2802. Guarantor's liability upon such guaranty. 

§ 2799. 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 contracts at the place where the principal contract is- 
to be performed. 

§ 2800. A guaranty to the effect that an obli^ration is 
good, or is collectible, imports that the debtor is solvent, and 
that th3 demand is collectible by the usual legal proceedings, 
li' taken with reasonable diligence. 

§ 2801. A guaranty, such as is mentioned in the last sec- 
Hon, is not discharged by an omission to take proceeding! 
upon the principal debt, or upon any collateral security for its 

Kiyment, if no part of the debt could have been collected 
ereby. 

f 2802. In the cases mentioned in section 2800, tho 1» 



n9 GUARANTY. }§ 2806-2810 

moral of the principal from the State, leaving no property 
therein from which the obligation might be satisfied, is eqoiv- 
ident to the insolvency of the principal in its effect upon the 
rights and obligations of the guarantor. 



ARTICLE IV. 

LIABILITY OF GUARANTORS. 

Sbotiok 2806. Guaranty, how construed. 

2807. Liability upon guaranty of payment or performanoe. 

2808. Liability upon guaranty of a conditional obligation. 

2809. Obligation of guarantor cannot exceed that of the prin- 

cipal. 

2810. Guarantor not liable on an illegal contract. 

§ 2806. A guaranty is to be deemed unconditional unlcM 
Its terms import some condition precedent to the liability of 
the guarantor. 

.§ 2807* A guarantor of payment or performance is liable 
to the guarantee immediately upon the default of the princi- 
pal, and without demand or notice. 

§ 2808. Where one guaranties a conditional obligation, 
his liability is commensarate with that of the principal, and 
he is not entitled to notice of the default of the principal, un- 
less he is unable, by the exercise of reasonable diligence, to 
acquire information of such default, and the creditor haji 
actual notice thereof. 

§ 2809. The obligation of a guarantor must be neithci 
larger in amount nor in other respects more burdensome than 
that of the principal ; and if in its terms it exceeds it, it is re 
ducible in proportion to the principal obligation. 

§ 2810. A guarantor is not liable if the contract of thf 
principal is unlawful ; but he is liable notwithstanding any 
mere personal disability of the principal, though the disabiL't} 
be sncn as to make the contract void against the principal. 



,y Google 



ii 2814-2821 ouABANTT. aao 

ARTICLE V. 

CONTINUING GDABANTT. 

SionON 2814. Continuing guaianty, what. 
2815. Revocation. 

§ 2814. A guaranty relating to a future liability of the 
principal, under successive transactions, which either continue 
nis liability or from time to time renew it after it has been 
satisfied, is called a continuing guaranty. 

§ 2816. A continuing guaranty may be revoked at any 
time by the guarantor. In respect to future transactions, un- 
less there is a continuing consideration as to such transactiom 
which he does not renounce. 

ARTICLE VI. 

BXONEKATION OF OUABANTOBS. 

BionoH 2819. What dealings with debtor exonerate guarantor. 

2820. Void promises. 

2821. Rescission of alteration. 

2822. Part performance. 

2828. Delay of creditor does not discharge guarantor 
2821. Guarantor indemnified by the debtor, not exonerated. 
2826. Discharge of principal by act of law does not dischaift 
guarantor. 

§ 2810. A guarantor is exonerated, except so far as he 
may be indemnified by the principal, if by any act of the 
creditor, without the consent of the guarantor, the original 
obligation of the principal is altered in any respect, or the 
remedies or rights of tne creditor against the principal, in 
lespect thereto, in any way impaired or suspended. 

§ 2820. A promise by a creditor, which for any cause ii 
void, or voidable by him at his option, does not alter the obli 
gation or suspend or impair the remedy, within the meaning 
of the last section. 

§ 2821. The rescission of an agreement altering the origl 
rial obligation of a debtor, or impairing the remedy of a crwl 



181 OUABANTT. §§ 2822-2831 

itor, does not restore the liability of a guarantor who has been 
exonerated by such agreement. 

§ 2822. The acceptance, by a creditor, of anjrthing in 
partial satisfaction of an obligation, reduces the obligation of 
a gaarantor thereof, in the same measure as that of the prin- 
cipal, but does not otherwise affect it 

§ 2828. Mere delay on the part of a creditor to proceed 
against the principal, or to enforce any other remeay, doef 
not exonerate a gaarantor. 

§ 2824. A guarantor, who has been indemnified by the 
principal, is liable to the creditor to the extent of the indem- 
nity, notwithstanding that the creditor, without the assent of 
the guarantor, may have modified the contract or released the 
principal. 

§ 2826. A guarantor is not exonerated by the discharge 
of his principal by operation of law, without the interrention 
or omission of the creditor. 



CHAPTER II. 

SURETYSHIP. 

Abtxou I. Who ass Subbtiks, §§ 2831-2832. 

II. LlABIUTT OF SUBETIBS, §§ 2836-2810. 

ni. Rights or Suamn, U 2844-2860. 
lY. Rights or Creditors, f 28&4. 
y. Ljnijsa or Crboit, §§ 2S5d-2866. 

ARTICLE L 

WHO AKB SUBBTIEB* 

Sionoir 2831. Smetj, what. 

2882. Apparent principal may show that he is stuety. 

§ 2831. A surety is one who at the request of another 
and for the purpose of securing to hija a benefit, becomes r6> 
iponsible for the performance by the latter of some act in 
favor of a third person, or hypothecate-s property as secnrity 
therefor. 

25 

Digitized by VjOOQIC 



|§ 2831-2840 OUARANTT. 88S 

§ 2832. One who appears to be a principal, whether by 
the terms of a written instrument or otherwise, may show 
that he is in fact a surety, except as against persons who have 
acted on the faith of his apparent character of principal. 
65GaL8i2. 

ARTICLE II. 

LIABILITY OF SUBBTIBS. 

BBCnoK 2836. Limit of surety's obligation. 
2887. Rules of interpretation. 

2838. Judgment against surety does not alter the relatioB. 

2839. Surety exonerated by performance or offer of performanea 

2840. Surety discharged by certain acts of the creditor. 

§ 2836. A surety cannot be held beyond the express terma 
. 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. 

§ 2837. In interpreting the terms of a contract of surety- 
ship, the same rules are to be observed as in the case of other 
contracts. 

§ 2838. Notwithstanding the recovery of judp^ment by a 
creditor against a surety, the latter still occupies the relation 
of surety. 

§ 2839. Performance of the principal obligation, or an 
ofEer of such performance, duly made as provided in this 
Code, exonerates a surety. [In efEect July 1, 1874.] 

§ 2840. 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 tne remedies 
of the surety or inconsistent with his rights, or which lessens 
his security ; or, 

3. To the extent to which he is prejudiced by an omissioi 
if the creditor to do anything, when required by the surety 
irhich it i« his duty to do. 



,y Google 



188 ouARANTT. §§ 2844-2849 

ARTICLE in. 

RIGHTS OF SURETIES. 

BlonOH 2844. Surety has rights of guarantor. 

2846. Surety may require the creditor to proceed against th« 
principal. 

2846. Surety may compel principal to perform obligations, when 

due. 

2847. A principal bound to reimburse his surety. 

2848. The surety acquires the right of the creditor. 

2849. Surety entitled to benefit of securities held by creditor. 
2850 The property of principal to be taken first. 

§ 2844« A surety has all the rights of a guarantor, 
whether he become personally responsible or not. 

§ 2845. A surety may require his creditor to proceed 
against the principal, or to pursue any other remedy in hia 
power which the surety cannot himself pursue, and which 
would lighten his burden ; and if in such case the creditor 
neglects to do so, the surety is exonerated to the extent to 
which be is thereby prejudiced. 
63 Col. 689. 

§ 2846. A surety may compel his principal to perform the 
obligation when due. 

§ 2847. If a surety sarisfies the principal obligation, or 
any part thereof, whether with or without legal proceedings, 
the principal is bound to reimburse what he has disbursed, in- 
dudmff necessary costs and expenses ; but the surety has no 
claim for reimbursement against other persons, though they 
may have been benefited by his act, except as prescribed by 
the next section. 

§ 2848. A surety, upon satisfying the obligation of the 
principal, is entitled to enforce every remedy which the cred- 
itor then has against the principal to the extent of reimburse 
ing what he has expended, and also to require all his co-sure* 
r^es to contribute thereto, without regard to the order of time 
in which they became such. 

§ 2849. A surety is entitled to the benefit of every secur- 
ity for the performance of the principal obligation held by the 
creditor, or by a co-surety at the time of entering into the 
•ontract of suretyship, or acquired by him afterwards, whethei 
the surety was aware of the security or not. 



{§ 2860-2861 OUABANTT. 884 

f 2860. Whenever property of a svretj is hypothecated 
with property of the pnucipal/the sarety is entitled to ha%« 
the proj)erty of the principal first applied to the discharge of 
the obligation. 

ARTICLE IV. 

RiOnTS OF CREDITORS. 

SionoR 2864. Oreditor entiiled to benefit of secuiitles held by sunty 

§ 2864. A creditor is entitled to the henefit of everything 
irhich a surety has received from the debtor by way of secnr- 
ity for the performance of the obligation, and may, upon the 
maturity of the obligation, compel the application oi such se- 
curity to its satis&ction. 



ARTICLE V. 

LBTTBR OF ORSDIT. 

BionoH 2868. Letter of credit, what. 
2869. How addressed. 

2860. Liability of the writer. 

2861. Letters of credit, either general or special. 

2862. Nature of general letter of credit. 

2863. Extent of general letter of credit. 

2864. A letter of credit may be a continuing gnazantj. 
2866. When notice to the writer necessary. 

2866. The credit given must agree with the terms of the letter. 

§ 2868. A letter of credit is a written instrument, ad- 
dressed by one person to another, requesting the latter to give 
credit to the person in whose favor it is drawn. 

i 2869. A letter of credit may be addressed to several 
persons in succession. 

§ 2860. The writer of a letter of credit is, upon the de* 
fault of the debtor, liable to those who gave credit in compli* 
tnce with its terms. 

§ 2861. A letter of credit is either general or special 
When the request for credit in a letter is addressed to spec» 
fled persons by name or description, the letter is special. M 
•ther letters of credit are general. 

Digitized by VjOOQIC 



IS5 LIEN. §§ 2862-2866 

§ 2862. A general letter of credit gives any person to 
whom it may be shown authority to comply with its request^ 
and by his so doing it becomes, as to him, of the same effect 
as if addressed to him by name. 

§ 2863. Several persons may successively give credit npoo 
a general letter. 

§ 2864. If the parties to a letter of credit appear, by ita 
terms, to contemplate a course of future dealing between the 
parties, it is not exhausted by giving a credit, even to the 
amount limited by the letter, which is subsequently reduced 
or satisfied by payments made by the debtor, but is to be 
deemed a continuing guaranty. 

§ 2866. The writer of a letter of credit is liable for credit 
given upon it without notice to him, unless its terms express 
or imply the necessity of giving notice. 

§ 2866. If a letter of credit prescribes the persons by 
whom, or the mode in which, the credit is to be given, or tlie 
term of credit, or limits the amount thereof, the writer is not 
bound except for transactions which, in these respects, con- 
form strictly to the terms of the letter. 



TITLE XIV. 

LIEN. 



Chaftbr I. Liens in Generat., §§ 2872-S918. 
II. Mortgage, §§ 2920-2971. 

III. Pledge, §§2986-3011. 

IV. Bottomry, §§ 3017-3029. 

V. Respondentia, f§ 3036-3040. 
VI. Other Liens, §§ 3046-3060. 
Vn. Stoppage in Transit, §§ 3076-308a 



,y Google 



II 2672-2877 



CHAPTER L 

LIENS IN QENEBAL. 

Asnou I. Defikitiok of LiKirs.§|2872>2S77. 
II. Cbkation of Likns, §« 2881-2884. 
III. ErrEOT OF Liens, §§ ^8-2892. 
IV PsioBiTT OF LiBNS, §§ 2897-2899. 
y RlDUITnOM PROM LlBNS, §§2908-2901^ 

VL SrruranoH or Lxsiis, §§ m^2m 



ARTICLE I. 

DEFINITION OF LIBNS. 

|KTI0S2872. Lien, what. 

2878. Liens, general or special 

2874. Oeneral lien, what 

2875. Special lien, what. 

2876. Prior liens. 

2877. Contracts snbjeot to proTlslons of this chapter 

§ 2872. A lien is a charge imposed in some mode oihdt 
fchan by a transfer in trust upon specific property, by which it 
is made secnriry for the performance of an act. [In effect 
April 16, 1878.) 

But see Code Civ. Proc. § 1180. 

§ 2iB73. Liens are either general or special. 

§ 2874. A general lien is one which the holder thereof is 
entitled to enforce as a security for the performance of all the 
obligations, or all of a particular class of obligations, which 
exist in his favor against the owner of the property. 

§ 2876. A special lien is one which the holder thereof can 
•.uforce only as security for the performance of a particular 
%i t ot obligation, and of such obligations as may be incidental 
there CO. 

§ 2876. Where the holder of a special lien is compelled to 
Mitisfy a prior lien for his own protection, he mav enforce pay 
menc of the amount so paid by him, as a part of the claim ^ 
which his own lien exists. 

§ 2877. Contracts of mortgage, pledge, bottomry* or to 
ipondeutia, arc subject to all the provisions of this chapter. 



M7 UBK. |§ 2881-2889 



ARTICLE ri. 

CBEATION OF LI Elf 8. 

SiOTiON 2881. Lien, how created. 

2882. No lien for claim not due. 

2888. Lien on future interest. 

2884. Lien may be created by contract. 

§ 2881. A lien is created : 

1. By contract of the parties, or, 

2. By operation of law. 

§ 2882. No lien arises by mere operation of law until tlie 
time at which the act to be secured, thereby ought to be per- 
formed. 

§ 2883. An agreement may be made to create a lien npon 

firoperty not yet acq|aired by the party agreeing to give the 
ien, or not yet in existence. In such case the lien agreed for 
attaches from the time when the party agreeing to give it ac- 
quires an interest in the thing, to the extent of such interest. 

§ 2884. A lien may be created by contract, to take imme- 
diate effect, as security for the performance of obligations not 
then in existence. 

ARTICLE in. 

EFFECT OF LIBN8. 

Bmtion 2888. Lien, or contract for lien, transfers no title. 

2889. Certain contracts void. 

2890. Creation of lien does not imply personal obligatioiu 

2891. Extent of lien. 

2892. Holder of lien not entitled to compensation. 

§ 2888. Notwithstanding an agreement to the contrary, a 
lien, or a contract for a lien, transfers no title to the property 
subject to the lien. 

§ 2889. AH contracts for the forfeiture of property sub- 
lect to a lien, in tiatisfaction of the obligation secured thereby, 
»nd all contracts in restraint of the right of redemption trom 
% lien, are yoid. 

Digitized by VjOOQIC 



$§ 2890- 2899 lien. 888 

§ 2890. The creation of a lien does not of itself imply 
that any person is bound to perform the act for which the lien 
is a security. 

§ 2891. The existence of alien upon property does not 
of itself entitle the person in whose favor it exists to a lien 
npon the same property for the performance, of any other 
obligation than that which the lien originally siecured. 

§ 2892. One who holds propeity by virtue of a lien 
thereon, is not entitled to compensation from the ownei 
thereof for any trouble or expense which he incurs respecting 
it, except to the same extent as a borrower, under section! 
1892 and 1893. 

ARTICLE IV. 

PRIOBITT OF LIBlfS. 

SsonON 2897. Priority of liena. 

3898. Priority of mortgage for price. 
2899. Ordev of resort to different funds. 

§ 2897. Other things being equal, different liens npon 
the same property have priority according to the time of their 
creation, except in cases of bottomry and respondentia. 

§ 2898. A mortgage given for the price of real property, 
at the time of its conveyance, has priority over all other liens 
created against the purchaser, subject to the operation of the 
recording laws. 

§ 2899. Where one has a lien npon several things, and 
other persons have subordinate liens upon, or interests in, soma 
but not all of the same thin<i:s, the person having the prior 
Jen, if he can do so without risk of loss to himself, or of in. 
jurtice to other persons, must resort to the property in the fol 
lowin": order on the demand of any party interested : 

1. To the things upon which he has an exclusive lien ; 

2. To the things which are subject to the fewest subordinate 
liens; 

^ 3. In like manner inversely to the number of subordinate 
Kens upon the same thing ; and, 

4. When several things are within one of the fbr^going 
tlaases, and subject to the same number of liens, resort motf* 

)e had, ^ 



S89 LI sir. §§ 2908-2906 

(1.) To the- things i%hich have not been transferred since the 
prior lien was created ; 

(2.) To the things which have been so transferred without 
B valuable consideration ; and, 

(3.) To the things which have been so transferred for a 
Taloable consideration in the inverse order of the transfer. 



ARTICLE V. 

REDBMPTION FROM LIBIT. 

BionOR 2903. Right to redeem. 

2901. Rights of inferior lienor. 

2905. Redemption from li«n, how made. 

§ 2903. Every person, having an interest in property sab* 
ject to a lien, has a right to redeem it from the lien, at any 
time after the claim is due, and before his right of redemption 
is foreclosed. 

§ 2904. One who has a lien inferior to another, upon the 
lame property, has a right : 

1. To redeem the property in the same manner as its owner 
might, from the superior lien ; and, 

2. To be subrogated to all. the benefits of the superior lien, 
when necessary for the protection .of his interests, upon satis- 
fying the claim secured thereby. 

§ 2905. Redemption from a lien is made byperforrain?, 
or offering to perform, the act for the performance of which it 
is a secunty, and paying, or offering to pay, the damages, if 
' older of the lien is entitled for delay. 



any, to which the holder < 



ARTICLE VI. 

EXTINCTIOir OP LIENS. 

iMfloir 2909. Lien deemed aecensory to -the act whose performaiiM ft ft 
cures. 

2910. Extinction by sale or conversioir. 

2911. Lien extinguished by lapse of tim« ualer Slatnta of IJbI 

tations. 

2912. Apportionment of Uen. r"r^r^n]o 
ana. Whe& restoration extinguishM Uii^'' by v^OOgie 



S§ 2909-2018 LIEN. SMI 

§ 2909. A lien is to be deemed accessory to the act for 

the performance of which it is a security, whether any pensoD 
is bound for such performance or not, and is extinguishable in 
like manner with any other accessory obii*^ation. 

§ 2910. The sale of any property on which there is a lien, 
in satisfaction of the claim secured thereby, or in case of per- 
Bonal property, its wrongful conversion by the person holding 
the lion, extinguishes the lien thereon. 

§ 2911. A lien is extinguished by the lapse of the time 
irithin which, under the provisions of the Code of Civil Pro- 
cedure, an action can be brought upon the principal obliga- 
tion. [§§ 335-347.J 

66 Cal. 343 ; 68 Cal. 161. 

§ 2912. The partial performance of an act secured by a 
lien does not extinguish the lien upon any part of the property 
subject thereto, even if it is divisible. 

§ 2913. The voluntary restoration of property to its owner 
by the holder of a lien thereon, dependent upon possession, ex- 
tinguishes the lien as to such property, unless otherwise agreed 
by the parties, and extinguishes it, notwithstanding any such 
agreement, as to creditors of the owner and persons subse- 
quently acquiring a title to the proi)erty, or a lien thereon, 
m good faith, and for a good consideration. [In effect Jnlj 
I, 1874.] 



CHAPTER XL 

MORTGAGE. 

AanoLi I. MoRTOAORS IN Obneral, §§ 2920-2942. 

TI. Mortgages op Real Property, §§ 2947-2962. 
III. Mortgages of Personal Property, §§ 2956-2971 



ARTICLE I. 

2920. Mortgage, what. 

2921. Property adversely held may be mortflttA 
9922. To be in writing. r^^^^I^ 
Wm. Ueo of a mort«a«e, when ipeefaO. v V^OOgLC 



•91 LIBIT. §§ 2020-2925 

Amhoh 2934. '^nanBter of Interest, when deemed a mortg%g«. 

2925. Transfer made subject to defeasance may be proTad. 

2926. Mortgage on what a lien. 

2927. Mortgage does not entitle mortgagee to poflieesion. 

2928. Mortgage not a personal obligation. 

2929. Waste. 

2930. Subsequently acquired title enures to morlfagee. 

2931. Foreclosure. 

2932. Power of sale 

2933. Power of attorney to execute. 

2934. Recording assignment of mortgage. 

2935. Recordiiiic ansignment of mortage not notice to moitfafov 

2936. Alortgage passes by assignment of debt. 

2937. Time allowed for filing mortgage for record. (Sepealed.) 

2938. Mortgage, how discharged. 
29.39. Same. 

2940. Same. 

2941. Duty of mortgagee on satisfaction of mortigage. 

2942. ProTisioiu of this chapter do not affect tettomry or r»> 

spondeuUa. 

§ 2920. Mortgage is a contract by which specific property 
i» hypothecated for the performance of an act, without the 
necessity of a change of possession. 

68 Cal.'lS. 

§ 2921. A mortgage may be created upon property held 
adversely to the mortgagor. 

§ 2922* A mortgage can be created, renewed, or extended, 
only by writing, executed with the formalities required in the 
case of a grant of real property. 

53 Cal. 680 ; 66 Cal. 344 : 57 Cal. 471. 

§ 2923. The lien of a mortgage is special, unless other- 
wise expressly agreed, and is independent of possession. 

§ 2924. 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 accompaniea by actual change 
9f possession, in which case it is deemed a pledge. [In effect 
/ulv I, 1874.1 

68 Cal. 15. 

§ 2925. The fact that a transfer was made subject to de- 
feasance on a condition, may, for the purpose of showing such 
transfer to be a mortgage, be proved (excep*; as against a sub- 
tequent purchaser or mcumbrancer for value and without 
notice), though the fact does not appear by the terms of tb« 
ustrnment. nr^r^n]c> 

58 Cai. 11, 16. uiQitized by V^OOg IL 



{§ 2926-2935 ubk. d9i 

§ 2926. A mortgage is a lien npon everything chat wonli 
pass by a grant of the property, 

§2927. A mortgage does not entitle the mortgagee to the 
possession of the property, unless nuthorized by the expresa 
terms of the mortgage; but after the execution of the mort- 
(rage the mortgagor may agree to such change of possession 
without a new consideration. 

§ 2928. A mortgage does not bind the mor^.gagor person- 
ally to perform the act for the performance of which it is a 
security, unless there is an express covenant therein to that 
effect. 

§ 2929. No person whose interest is snbject to the lien of 
a moitgage may do any act which will substantially impair 
the mortgagee's security. 

§ 2930. Title acquired by the mortgagor Suhse'^uent to 
the execution of the mortgage enures to the mortgagee as se- 
curity for the debt, in like manner as if acquireu before the 
execution. [In effect July 1, 1874.1 

52 Cal. 336. 

§ 2931. A mortgagee may foreclose the right of redemp- 
tion of the mortgagor in the manner prescribed by the Code 
of Civil Procedure. 

Code Civ. Proc. §5 892, 664, 726-728, 744. 

§ 2932. 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 for which the mortgage is a se 
curity. 

§ 2933. A power of attorney to execute a mortgage mnst 
be in writing, subscribed, acknowledged, or proved, certified,* 
and recorded in like manner as powers of attorney for granti 
of real property. 

§ 2934. An assignment of a mortgage may be recorded in 
like manner as a mortgage, and such record operates as notici 
o all persons subsequently deriving title to the mortgagt 
from the assignor. [In effect July 1 1874.] 

§ 2935. When the mortgage is executed as security lb 



B9$ LiBH. §§ 2936-2941 

moiMj due, or to become dae, on a promissoiy note, bond, or 
other instrument, designated in the mortgage, the record of 
the assignment of the mortgajre is not, of itself, notice to a 
mortgagor, his heirs, or personal representatives, so as to in- 
validate any payment made by them, or either of them, to the 
person holding such note, bond, or other instrument. [la 
effect July 1, 1874.] 

§ 2936. The assignment of a debt secured by mortgage 
carries with it the security. 

§ 2937 of said Code is repealed. [In effect July 1, 1874.] 

§ 2938. A recorded mortgage may be discharged by an 
entry in the margin of the record thereof, signed by the mort- 
\ gage*^. or his personal representative or assignee, acknowledg- 
I ing the satisfaction of the mortgage in the presence of the re- 
I corder, who must certify the acknowledgment in form sub- 
r Btantially as follows : " Signed and acknowledged before me, 

J this day of , in the year . 

A B, Recorder." 

§ 2939. A recorded mortgage, if not discharged as pro- 

^[ tided in the preceding section, must be discharged upon the 

\ ^ .record by the officer having custody thereof, on the presentation 

&p4 ^ to him of a certificate signed by the mortgagee, his personal rep- 

^ • resentatives, or assigns, acknowledged or proved and certified 

as prescribed by the Chapter on Recording Transfers, stating 

that the mortgage has been paid, satisfied, or discharged. 

§ 2940. A certificate of the discharge of a mortgage, and 
the proof or acknowledgment thereof, must be recorded at 
tength, 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 
anc page where the discharge is recorded. 

§ 2941. Wbeii4lny mortgage has been satisfied, the mort' 
gagt^ or his as&ignee must immediately, en demand of the 
murtgngor, execute, acknowledge, and deliver to him a certifi 
ca;e of the discharge thereof, so as to entitle it tj be recorded, 
or he must enter satisfaction, or cause satisfaction of such 
mortgage to be entered of record , and any mortg:agee, oi 

jgitizedbyGoOgle 



(§2942-2950 usir. 8»< 

assignee of such mortgage, who refuses to execute, acknowl- 
edge, and deliver to the mortgagor the certificate of discharge^ 
or to enter satisfaction or cau8e satisfaction of the moitgage 
to be entered, as provided in this chapter, is liable to the mort- 
gagor, or his grantee or heirs, for ail damages which he or 
they may sustain by reason of such refusal, and shall also for 
feit to him or them the sum of one hundred dollars. [In effect 
April 15, 1880. J 

§ 2942. Contracts of bottomry or respondentia, although 
b the nature of mortgages, are not affected by any of the pro- 
f isions of this chapter. 



ARTICLE 11. 

MORTGAGE OP KEAL PROPERTY. 

IMTION 2947. What real property may be mortgaiped. 

2948. Form of mortgage. 

2949. Wliat must be recorded as a mortgage. (Repealed.) 

2960. Defeasance, to affect grant absolute on its faee, matt b« 

recorded. 
2951. By whom paid after property passes by snecession or will 

(Repealed.) 
2962. May be recorded. 

§ 2947. Any interest in real property which is capable o« 
being transferred may be mortgaged. 

§ 2948. A mortgage of real property may be made in 
inbstantially the following form :. 

** This mortgage, made the day of , in the year , by 

K. B, of , mortgagor, to C D, of , mortgagee, witnesseth : 

** That the mortgagor mortgages to the mortgageie [here describe 

I be property], as security for the pa^'ment to him of dollars, 

«n [or before] the day of , m the year , with interest 

hereon [or as security for the payment of an obligation, describ- 
jigit,&c.J. ^ t-^ 6 ^3„ 

§ 2949 of said Code is repealed. [In^tftbt July 1, 1874.] 

§ 2960. When a grant of real property purports to be an 
absolute conycyance, but is intended to be defeasible on the 
performance oi certain conditions, such grant is not defeated 
V affected as against any person other than the grantee or hif 
keirs or deyiaees, or persons having actual notice, nnle§0 M 



m UBir. §§ 2051-2956 

instrnment of defeasance, duly executed and acknowledged, 
ihall have been re<y)rded in the office of the county recorder 
of the county where the property is situated. 

§ 2951 of said Code is repealed. [In eflfect July 1, 1874.J 

§ 2952. Mortgages of reai property may be acknowledged 
or proved, certified and recorded, in like manner and with likf 
effect as grants thereof. [In effect July 1, 1874.] 

46 Cal. 607. Fees for Acknowledgment and Recordinc. Pol. 0o4t 
II 738, 4286, 4245. 



^ 



ARTICLE IIL 

MORTOAOB OP PEBBOl^AL PROPBBTT. '•^J "i 



\?^ V J 

fMmoif 2966. What personal property may be mortgaged. \^,^^ >o 

2966. Form of personal mortgage. \X \ 

2957. When Toid as to third persons. N^ ^ 

2968. Mortgage of ships, when Toid as to third persons. ♦.r^ \I 

2969. Where recorded. ^W ^ 

2960. Property in transit, where to be recorded. r\ I ^ 

2961. Property of a common carrier, where to be recorded. ^^w ' v 

2962. Recorded in different places. ^ ^- 
2968. Personal mortgage may be recorded. ^s. \ \ 

2964. Certified copies may be recorded, when. >0 cs 

2965. Property exempt from efifect of mortgage, when. \ T 

2966. May be taken by mortgagee as a pledge, when. V V^ 

2967. Ilow foreclosed. «} ^ 

2968. Mortgage property may be leyied upon. vy ^ 

2969. Limitations on right of leTT. >J* 

2970. Distribution of proceeds of sale under process. sX' 

2971. Sections not applicable to mortgage of certain ships. ^ ' | 

2972. Lien of a mortgage on growing crop. ^~ Vj 

§ 2955. Mortgages may be made npon : First, locomo- ^^ ^ 
tives, engines, and other rolling-stock of a railroad ; second, ■. ) >f 
steamboat machinery, the machinery nsed by machinistSi V ^^ 
<iv fonndry-men, and mechanics ; third, steam-engines and boil- \ 
^tK "'*'* fourth, mining machinery; fifth, printing presses and . "^ 
^v^N. material ; sixtl^, professional libraries; seventh, instruments -nJ 
^i^ . >Df Jfcsy^KeyoEtteSy^iFJwbs ^^ dentist ; eighth, upholstery and ^ a 
» rl furnMtS^^liSm'W^ -©r boag d t u g« himst'S , when A ^ 

O Vs/' moptffftgea to s ccn r o the - pngohdR^ money o f the ai tides niurt -rS^ ^ 
C^C^V gaged; ninth, growing cro^s ; tenth, vessels of more than five ^ 
*\^ tons burden ; eleventh, instruments, negatives, furniture, and 

^ fixtures of a photograph gallery; twelfth, the machinery, J 

rasks, pipes, tnbes, and utensils used in the manufacture of ^ 
wine, fruit brandy, and fruit sj'rup or sugar, with the cooper- 
—* ;« «»K;»h f K« aam« i.H contained : thirteenth, niunoa and 



> 



f § 2956-29ei usir. 99% 

§ 2966. A moTt^ag^e of personal property maj be made in 

labstantially the foUowing form : 

" This mortgage, made the day of , in the year . 

by A B, of , by occupation a , mortgagor, to C D, cl 

— , by occupation a , mortgagee, witnesseth : 

** That the mortgagor mortgages to the mortgagee [here describt 

the property], as security for the payment to him of dollars- 

on [or before] the day of , in the year y with interest 

thereon [or, as security for the payment of a note or obligation, 
describing it, &c.]. A B.'* 

§ 2957. A mortgage of personal property is void aa 
against creditors of the mortgagor and subsequent purchasers 
and incumbrancers of the property in good faith and for 
value, unless : 

1. It is accompanied by the affidavit of all the parties 
thereto that it is made in good faith and without any design 
to hinder, delay, or defraud creditors ; 

2. It is acknowledged or proved, certified and recorded, in 
like manner as grants of real property. 

§ 2958. A mortgage of any vessel or part of any vessel 
under the flag of the United States is void as against any 
person (other than the mortgagor, his heirs, and devisee, and 
persons having actual notice thereof), unless the mortgage is 
recorded in the office of the collector of customs where such 
vessel is registered or enrolled. 

§ 2959. A mortgage of personal property must be re- 
corded in the office of the county recorder of the county in 
which the mortgagor resides, and also of the county in which 
the property mortgaged is situated, or to which it may be 
removed. 

Pol. Code, § 4235. 

§ 2960. For the purposes of this article, property in tran- 
lit from the possession of the mortgagee to the county of the 
residence of the mortgagor, or to a location for use, is, durinf; 
a reasonable time for such transportation, to be taken as sit- 
uated in the county in which the mortgagor resides, or where 
It is intended to be used. 

§ 2961. For a like purpose, personal property used in 



124 327 



124 327 



•97 LiBv. §§ 2962 2967 

litoated in the comitj in which the principal office or place of 
business of the carrier is located. 

S 2962. A single mortjrage of personal property, embrac- 
ing several thinjrs of such character or so situated that by the 
provisions of this article separate mortgajres u])on them would 
be required to be recorded in different places, is only valid in 
respect to the things as to which it is duly recorded. 

§ 2963. 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. 

ffff^ § 2964. A certified copy of a mortgage of personal pro]^ 

^\l^ crty once recorded may be recorded in any other county, and 
<if*- when so recorded the record thereof has the same force and 
effect as though it was of the original mortgage. 

§ 2965. When personal property mortgaged is thereafter 
by the mortgagor removed from the county in which it is ait- 
2965 nated, it is, except as between the parties to the mortgage, ex- 
124''827 ^ropted from the operation thereof, unless either : 

1 . The mortgagee, within thirty days after such removal, 
causes the mortgage to be recorded in the county to which the 
property has been removed ; or, 

2. The mortgagee, within thiity days after such removal, 
takes posscHsion of the property, as prescribed in the next 
section. 

§ 2966. If the mortgagor voluntarily removes or permit! 
2966- the removal of the mortgaged property from the county in 
124''827 ^hich it was situated at the time it was mortgaged, the mort- 
gagee may take possession and dis|)ose of the prO|>erty as a 
pledge for the payment of the debt, though the debt is not 
due. 

§ 2967. A mortgagee of personal property, when the debt 

2967 lo secure which the mortgage was executed becomes due, may 

cc foreclose the mortgagor's right of redemption by a sale of the 

124 327 property, made in the mannBr ard upon the notice prescribed 

vy the Title on Pledge, or by proceedings under the Code ol 

CSvil Procedure. [§§ 726-728.J 

26 



|§ 2968-2972 look. 898 

^968 

00 § 2968. Personal property mortgaged may be taken nn- 
'^ 327 der attachment or execatiou issued ai the suit of a creditor of 
the morrpfagor. 
66 Cal. 218. 
^a § 2969. Before the property is so taken, the officer must 
cc pay or tender to the mortgagee the amount of the mortgage 
^^ S27 debt and interest, or must deposit the amount thereof with 
the county clerk or treasurer, payable to the order of the 
mort^ajree. 
56 Cal. 218. 

{ 2970. When the property thus taken is sold under pro* 
2970 cess, the officer must apply the proceeds of the sale as follows : 
vu 827 I . To the repayment of the sum paid to the mortgagee, with 
interest from the dnte of such payment; and, 

2. The balance, if any, in like manner as the proceeds of 
sales under execution are applied in other cases. 

^^ § 2971. Sections 2957, 2959, 2960, 2961, 2962, 2963, 2964, 
124 337 2965, and 2966 do not apply to an^ mortgage of a ship or part 
of a ship under the flag of the Umted States. 

2972 § 2972. The lien of a mortgage on a growing crop continues 

24 327 ^^ ^^^ ^^^P after severance, whether remaining in its original 

state or converted into another product, so long as the same 

remains on the land of mortgagor. [In effect April 1, 1878.] 

2973 

cc ■' 

124 330 

CHAPTER IIL 

PLEDGE. 

ffianoM 2986. Pledge, what. 

2987. When contract Is to be deemed a pledge 

2988. 1>eliyery essential to validity of pledge. 

2989. Increase of thing. 

2990. Lienor may pledge property to extent of hifl lien. 

2991. Real owner cannot defeat pledge of property tnuufened If 

apparent owner for the purpose of pledge. 

2992. Pledge lender, what. 
2998. Pledge holder, what. 

2991. When pledge lender may withdraw property pledfed. 
2996. Obligations of pledge holder. 
2996. Pledge holder must enforce rights of pledgee. 
9997. Obligation of pledgee and pledge holder, for rewaMi 
2908. Gratuitous pledge holder. >9le 

S8Q0. Debtor's misrepresentation of ralue of pledgw 



%nd no pledge is valid until the property pledged is delivered 
pledgee, or to a pledge holder, as here^er prescribed. 



VZ4^ 



)99 LiBV. §§ 2986-2994 

MonON 3000 When pledsree may sell. 

;)001. When pledgee must demand performanet. 

3002. Notice of sale to pledgor. 

dOOd. Waiver of notice of sale. 

aOOi. Waiver of demand. 

8005. Sale must be by auction. 

9006. Pledgee's sale of securities. 

8007. Sale on the demand of the pledgor. 

8008. Surplus to be paid to pledgor. 

8009. Same. 

8010. Pledgee's purchase of property pledged. 

8011. Pledgee may foreclose right of redemption. 

§ 2986. Pledge is a deposit of personal property bj way 
of security for the performance of another act. 

§ 2987. Every contract by which the possession of pep- 
8oiial property is transferred, as security only, is to be deemed 
R pledge. 

§ 2988. The lien of a pledge is dependent on possession, 
nd no p' 
to the pl( 

§ 2989. The increase of property pledged is pledged with 
the property. 

§ 2990. One who has a lien upon property may pledge it 
to the extent of his lien. 

§ 2991. One %vho has allowed another to assume the ap 
parent ownership of property for the purpose of making any 
transfer of it, cannot set up his own title to defeat a pledge of 
the property, made by the other to a pledgee who received 
*:he property in good mith, in the ordinary course of business, 
gold for value. 

62 Cal. 616. 

§ 2992. Property may be pledged as security for the obli- 
.: fltion of another person than the owner, and in so doing the 
iwner has all the rights of a pledgor for himself, except as 
hereinaCter stated. 

§ 2993. A pledgor 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. 

§ 2994. One who pledges property as secuntywr the ob- 
Vgation of another, cannot withdraw the property pledged 



|§ 2995-8003 lww. 400 

otherwise than as a pledgor for himself might, and if he re- 
ceives from the debtor a consideration for the pledge he can- 
not withdraw it without his consent. 

§ 2995. A pledge holder for reward cannot exonerate 
himself from his undeitaking ; and a gratuitous pledge holdei 
can do so only by giving reasonable notice to the pledgor and 



pledgee to appoint a new pledge holder, and in case of their 
failure to agree, by depositing the property pledged with sodm 
impartial person, who will then be entitled to a reasonable 



failure to agree, by depositing the property pledged with sodm 
impartial person, who will then be ei ' ' ' 
compensaaon for his care of the same. 

§ 2996. A pledge holder must enforce all the rights of the 
pledgee, unless authorized by him to waive them. 

S 2997. A pledgee, or a pledge holder for reward, aflsames 
the duties and liabilities of a depositary for reward. 

§ 2998. A gratuitous pledge holder assumes the duties 
and liabilities of a gratuitous depositary. 

§ 2999. Where a debtor has obtained credit, or an exten- 
sion 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 defamt thereof may recover his debt inmiediately, though 
it be not actually due. 

§ 3000. When performance of the act for which a pledge 
is given is due, in whole or in part, the pledgee may collect 
what is due to him by a sale of property pledged, subject to 
the rules aiid exceptions hereinafter prescribed. 

§ 8001. Before property pledged can be sold, and after per- 
formance of the act for which it is security is due, the pledgee 
must demand performance thereof from the debtor, if the 
debtor can be found. [In effect July 1, 1874.] 

§ 8002. A pledgee must give actual notice to the pledgor 
of the time and place at which the property pledged will be 
V>ld, at such a reasonable time before the sale as will enable 
vhe pledgor to attend. 

^ § 3003. Notice of sale may be waived by a pledgor at any 
I me ; but is not waived by a mere waiver of demand of pes 
rmance. 



101 LiKN. §§3004-3011 

§ 3004# A debtor or pledgor waives a demand of perform- 
Itnce as a condition precedent to a sale of the property pledged, 
by a positive refusal to perform, after performance is clue ; but 
cannot waive it in any other manner except by contract. 

§ 8005. The sale by a pledgee, of property pledged, most 
be made by public auction, in the manner and upon the notice 
to the public usual at the place of sale, in respect to auction 
sales of similar property ; and must be for the highest obtaiii* 
able price. 

§ 3006. A pledgee cannot sell any evidence of debt 
pledged to him, except the obligations of governments, staws, 
or corporations ; but he may collect the same when due. 

§ 3007. Whenever property pled<red can be sold for a 
price sufficient to satisfy the claim of the pledgee, the pledgor 
may require it to be sold, and its proceeds to be applied to 
•uch satisfaction, when due. 

§ 3008. After a pledgee has lawfully sold property pledged, 
or otherwise collected its proceeds, he may deduct therefrom 
(he amount due under the principal oUigarion, and the neces- 
sary expenses of sale and collection, and must pay the surplus 
to the pledgor, on demand. 

§ 3009. When property pled<red is sold by order of the 
pledjgor before the claim of the pledgee is due, the latter may 
retain out of the proceeds all that can possibly become dae 
under his claim until it becomes due. [In effect July 1, 
1874.] 

W \ V^ § 3010. A pledgee, or pledge holder, cannot purchase the 
^j ^^ property pledged, except by direct dealing with the pledgor. 

§ 3011. Instead of selling property pledged, as hereinbe- 
fore provided, a pledgee may foreclose the right of redemption 
by a judical sale, under the direction of a competent court ; 
BDd in that case may be authorizea by the court to purchase 
It the sale. 

Flkwubrokflts Penal Code^ §§ 888-818. 

Digitized by VjOOQIC 



H 8017-3022 



CHAPTER IT. 
BOTTOMRY. 

8017. Bottomry, what. 

8018. Owner of ship may hypothecate. 

8019. When master may hypothecate ship.' 

8020. Same. 

8021. When master may hypothecate freight i 

8022. R%te of interest. 
8028. Eights of lender, when no necessity for botloKZT «> 

toted. 

8024. Stipulation for personal UabiUty Toid. 

8025. lIHien money loaned is to be repaid. 

8026. When bottomry loan becomes due. 

8027. Bottomry lien, how lost. 

8028. Preference of bottomry lien over other liens. 

8029. Priority of bottomry liens. 

§ 8017. Bottomry is a contract by which a ship or itf 
freightage is hypothecated as security for a loan, which is to be 
repaid only in case the ship survives a particular risk, voyage, 
or period. 

§ 3018. The owner of a ship may h3rpothecate it or its 
freightage, upon bottomry, for any lawful purpose, and at 
any time and place. 

§ 3019. The master of a ship may hypothecate it upon 
bottomry only for the purpose of procuiing repairs or sup- 
plies which are necesisary for accomplishing Sie objects of the 
voyage, or for securing the safety ot the ship. 

§ 3020. The master of a ship can hypothecate it upon 
bottomry only when he cannot otherwise relieve the neces- 
•ities or the ship, and is unable to reach adequate funds ol 
the owner, or to obtain any upon the personal credit of the 
owner, and when previous communication with him is pre- 
cluded by the urgent necessity of the case. 

§ 3021. The master of a ship may hypothecate freightage 
upon bottomry, under the same circumstances as those whicli 
Huthorize un hypothecation of the ship by him.. 

§ 8022. Upon a contract of bottomry, the parties ma^ 
Uwfully stipulate for a rate of interest faiigher than that al 



9 



M» LiBH. §§ 3023-3028 

lowed by the law upon other contracts. But a competent 
court may reduce the rate stipulated when it appears unjusti- 
fiable and exorbitant. 

§ 3023. A lender upon a contract of bottomry, made by 
the master of a ship, as such, may enforce the contract, 
though the circumstances necessary to authorize the master to 
hypothecate the ship did not in fact exist, if, after due dili- 
eence and inquiry, the lender had reasonable grounds to be- 
Reve, and did in good faith believe, in the existence of such 
circumstances. 

§ 3024. A stipulation in a contract of bottomry, imposing 
an^ liability for the loan independent of the maritime risks, is 
void. 
# 

§ 3025. In case of a total loss of the thing hvpothecated, 
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. 

§ 3026. Unless it is otherwise expressly agreed, a bot- 
tomry loan becomes due immediately upon the termination 
of the risk, although a term of credit is specified in the con- 
tract. « 

§ 3027. A bottomry lien is independent of possession, 
and is lost by omission to enforce it within a reasonable time. 

§ 3028. A bottomry lien, if created out of a real or ap- 
parent necessity, in good faith, is preferred to every other lien 
or claim upon the same thing, excepting only a lien for sea- 
men's wages, a subsequent lien of material men for supplies 
or repairs indispensable to the safety of the ship, and a sub- 
•eqnent lien for salvage. 

§ 3029. Of two or more bottomry liens on the same sub- 
|ect, the latter in date has preference, if created oat of necei 



,y Google 



K 8036-8040 



CHAPTER V. 
BBSPONDBNTIA! 

Eamtm 8086. Respondentia, wbat. 

8087. Respondentia by owner. 

8088. Respondentia by master. 

8089. Rate of interest. 

8040. Obligations of ship owner. 

f 8036. Respondentia is a contract by which a cargo, of 
lome part thereof, is hypothecated as security for a loan, tht 
repayment of which is dependent on maritime risks. 

§ 3037. The owner of cargo may hypothecate it npon 
respondentia, at any time and place, and for any lawful pur- 
poM. 

§ 3038. The master of a ship may hypothecate its cargo 
upon respondentia only in a case in which he would be au- 
thorized to hypothecate the ship and freightage, but is unable 
to borrow suthcient 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. 

r 

§%039. The provii^ions of sections 3022 to 3029 apply 
equally to loans on respondentia. 

§ 3040. The owner of a ship is bound to repay to th« 
owner of its cargo all which the latter is compelled to pay 
under a contract of respondentia made by the master, in ordei 
to discharge its lien. 



CHAPTER VI. 

OTHER LIENS. 

BlinioiT 8046. Lien of seller of real property. 

8047. When transfer of contract waires llva. 

8018. Extent of seller's lien. 

804V. Lien of seller of penonal property. 

8060. Purchaser's lien on real property jolc 

M61. Lien for servioer o 



K» LiBH. §§ 3046-3051 

SKOnON 8052. Uenf on personal propert7. 
a068. Lien of factor. 
S054. Banker's lien. 
8066. ShipnuuBter'B lien. 
a066. Seamen's lien. 
8057. Officer's lien. 

8068. Judgment Uen. 

8069. Mechanic's lien. 
8060. Lien on ships. 

§ 3046. One who sells real property has a vendor's lien 
Ihereon, independent of possession, for so mnch of the price 
US remains unpaid and unsecured otherwise than by the per- 
aonal obli^tion of the buyer. 

66 Cal. 463. 

§ 3047. Where a buyer of real property gives to the 
ieller a written contract for payment of all or part of the 
price, an absolute transfer of such contract by the seller 
waives his lien to the extent of the sum payable under the 
contract ; but a transfer of such contract in tnist to pay debts, 
and return the surplus, is not a waiver of the lien. 

§ 3048. The liens defined in sections 3046 and 3050 are 
valid aj^ainst every one claiming under the debtor, except a 
purchaser or incumbrancer in good faith and for value. 

§ 3049. One who sells personal property has a special 
Ken thereon, dependent on possession, for its price, if it is in 
his possession when the price becomes payable, and may en- 
force his lien in like manner as if the property was pledged to 
him for the price. 

§ 3050. One who pays to the owner any part of the price 
of real property, under an agreement for the sale thereof; haa 
a special hen upon the property, independent of possession, 
for such part of the amount paid as he may be entitled to r^ 
eover bacK, in case of a failure of consideration. 

§ 3061. Every person who, while lawfully in possession of 
in article .of personal property, renders any service to the 
owner thereof by labor or skill employed for the protection, 
Improvement, safe keeping, or carriage thereof, has a special 
^n thereon, dependent on possession, for the compensation. 
If any, which is due to him from the owner for such service. 
And livery or boarding or feed stable proprietors and persons 
pasturing: horses or stock have a lien dependent on possessiou 
<or their compensation in caring for, boarding, feeding, or pae- 



5§ 3052-3057 wen. IM 

juring such horses or stock. [In effect May 28, 1878.] Ap. 
proved March 29, 1878. 

53 Cal. 353. 

§ 3052. A person who makes, Jilters, or repairs any articia 
of personal property, at the request of the owner, or legal pos- 
pessor of the property, has a lien on the same for his reasona- 
ble charges for work done and materials furnished, and may 
retain possession of the same until the charges are paid, li 
not paid within two months after the work is done, the person 
may proceed to sell the property at public auction, by giving 
ten days' public notice of the sale by advertising in some newB> 
paper published in the county in which the work was done; 
or, if there be no newspaper published in the county, then by 
posting up notices of the sale in three of the most public places 
m the town where the work was done, for ten days previous 
to the 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. 

^ § 3053. A factor has a general lien, dependent on posses- 
non, for all that is due to him as such, upon all articles of 
commercial value that are intrusted to him by the same prin- 
cipal. 

^ § 3054. A banker has a general lien, dependent on posses- 
ion, upon all property in his hands belonging to a customer, 
for the balance due to him from such customer in the course 
of the business. 

§ 8055. The master of a ship has a general lien, inde- 
pendent of possession, upon the ship and freightage, for ad- 
vances necessarily made or liabilities necessarily incurred by 
Uim for the benefit of the ship, but has no lien for his wages. 

^ § 3056. The mate and seamen of a ship have a genera] 
lien, independent uf possession, upon the ship and freighc&g9| 
for their wages, which is superior to every other lien. 

§ 3067. An officer who levies an attachment or execution 
apon personal property acquires a special lien, dependent on 
possession, upon such property, which authorizes him to hold 
It until the process is discharged or satisfied, or a judicial B«li 
»f the property is had. , ,^,,3, by GooqIc 

CodB Ch. Proo. S5 542, 688. *^ 



•07 LIEN. §§ 3068-3080 

§ 3068. The lien of a judgment is regulated by the Coda 
3f Civil Procedure. 
Code CiT. Proc. §§ GH, 674 

V 

4 § 3069. The liens of mechanics, for materials and servicea 
i Upon real property, are regulated by the Code of Ci?il Pro- 
f cedure. [§§ 1183-1199.] 

§ 3060. Debts amoanting to at least fifty dollars, con- 
"g tracted for the benefit of ships, are liens in the cases proTided 
•5 by the Code of Civil Procedure. [§ 813.] 

$ Lieu of Innkeepers and Boarding-house Keepers, see §§ 1861>1868 of 
c Ihij Code. Liens for Wages, &c., Code CiT. Pro©. !§ 1204-1206. 



CHAPTER VII. 
STOPPAGE IN TRANSIT. 

SiCTiOM 8076. When consignor may stop ^ods 
8077. What is insolvencj of consignee 
8073. Transit, when ended. 

8079. Stoppage, how effected. 

8080. Effect of stoppage. 

§ 3076. A seller or consignor of property, whose daim 
for its price or proceeds has not been extinguished, may, upon 
the insolvency 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. 

§ 3077. A person is insolvent, within the meaning of the 
last section, when he ceases to pay his debts in the manner 
usual with pers(^ii8 of his business, or when he declares his 
Viability or unwillingness to do so. 

§ 3078. The transit of property is at an end when it 
comes into the possession of the consignee, or into that of 
his aicenr, unless such aj^ent is employed merely to forward 
the property to the consignee. 

§ 3079. Stoppage in transit can be effected only by notice 
to the carrier or depositary of the property, or by taking 
%ctual possession thereof. 

§ 3080. Stoppage in transit does not, of itself, rescind a 
»aiie, but is a means of enforcing the lien of the seller. 



IS 3086-3087 negotiable iMSTBUiiEirTR. «M 

TITLE XV. 
NEGOTIABLE INSTRUMENTS. 

Okapter I. Negotiable lN8TRUxE2rrs in General, §{ 30M 
8165. 
II. Bills of Exchange, §§ 3171-3238. 

III. Pkomissoky Notes, §§3244-3248. 

IV. Checks, §§ 3264-3255. 

V. Bank Notks and Certificated of Dcfouv 



CHAPTER L 
NBQOTIABLE INSTRUMBNTS IN GBNBB\J«« 
Abtxols I. General Definitions, §f 8066-8085. 

II. iNtERPRETATION, §§ 3099-8104. 

III. Indorsement, §§3108^125. 

IV. Presentment for Payment, §§ 8130-^87. 
V. Dishonor, Ǥ 8141-3151. 

VI. Excuse of presentment and Nohoe, §§ 8166-8160 
VII. Extinction, §§ 3164-8166. 



ARTICLE I. 

OENBBAL definitions. 

•lonoN 8086. To what instruments this title is appllcabto. 

8087. Negotiable instrument, what. 

8088. Must be |or unconditional payment of moBfj 
8088. Payee. 

8090. Instruiyient may be in altemativ» 

8091. Date, &c. 

^1092. May contain a pledge, &c. 

8098. What it must not contain. 

8094. Date. 

8096. Different classes of negotiable instruments. 

§ 3086. The provisions of this title apolv only t«> n%;t> 
iab]e instruments, as defiued in this article. 

5 8087. A negotiable instrument is a writc«n ptNimise of 



f09 irXOOTIABLE IN8TR17MBKT8. §§ 3088-3096 

reqaest for the payment of a certaiii sum of mone^ to order 
or Dearer, in conformity to the provisions of this article. 

§ 3088. A. negotiable instrument must be made payable 
In money only, and without any condition not certain of l«i- 
filment. 

§ 8089. The person to whose order a negotiable instru- 
ment is made payable must be ascertainable at the time the 
instrument is made. 

§ 3090. A negotiable instrument may f^ve to the payee 
fin option between the payment of the sum specified therein 
and the performance of another act ; but as to the latter, the 
instrument is not within the provisions of this title. 

§ 3091. A negotiable mstmment may be with or without 
date, and with or without designation of the time or place of 
payment. 

§ 3092. A negotiable instrument may contain a pledge of 
collateral security, with authoiity to dispose thereof. 

§ 3093. A negotiable instrument must not contain any 
other contract than such as is specified in this article. 

§ 3094. Any date may be inserted by the maker of a ne- 
gotiable instrument, whether past, present, or future, and the 
mstrumenf is not invalidated by his death or incapacity at the 
time of tne nominal date. 

§ 3096. There are six classes of negotiable inatinmenti, 
namely : 

1. Bills of exchange ; 

2. Promissory notes; 

3. Bank notes ; 

4. Checks; 

5. Bonds; 

• Certificates of depoiil 



, Digitized tiyVnOOQlC . 



Si 3088-3104 NEGOTIABLE INSTBUMSNT4. 410 

ARTICLE II. 

INTBRl'RETATION OF NEGOTIABLE INSTBUMSNXt. 

BKmON 8099. Time aod place of payment. 

8100. Place of payment not specified. 

8101. Instruments payable to a penon or his order, how eon 

strued. 

8102. Unindorsed note, when n^otiable. 

8103. Fictitious payee. 

8104. Presumption of consideration. 

§ 3099. A negotiable instrament which does not specifjf 
the time of payment is payable immediately. 

§ 3100. A negotiable instrument which does not specify 
ft place of payment is payable at the residence or place of 
business of the maker, or wherever he may be found. [In 
ilect July 1, 1874.] 

§ 3101. An instrument, otherwise negotiable inform, paj- 
ahle to a person named, but with the words added, " or to 
his order," or " to bearer," or words equivalent thereto, is in 
the former case payable to the written order of such person, 
and in the latter case payable to the bearer. 

§ 3102. A negotiable instrument, made payable to the 
order of the maker, or of a fictitious person, if issued by the 
maker for a valid consideration, without indorsement, has the 
same effect against him and all other persons having notice of 
the facts as if payable to the bearer. 
64 Cal. 110. 

§ 3103. A ne<?otiable instrument, made payable to th« 
order of a person obviously fictitious, is payable to the bearer 

§ 3104. The signature of every drawer, acceptor, and in 
dorser of a negotiable instrument is presumed to have beer 
made for a valuable consideration, before the matuiity of thi 
instrument, and in the ordinary coarse of business. 



,y Google 



ill VBOOTZABLE IN8TBUHENT8. §$3108-8114 

ARTICLE III. 



INDORSEMENT. 

llonoirSlOS. Indorroment, what. 

8109. Agreement to indorse. 

8110. When may be made on separate papw. 

8111. Kindi? of indorsement. 

8112. General indoreement, what. 

8113. Special indorsement, what. 

8114. General indorsement, how made special 

8115. Destruction of negotiability by indorser 

8116. Implied warranty of indorser. 
3117. Indorser, when liable to payee. 

8118. Indorsement without recourse. * 

8119. Same. 

8120. Indorsee privy to contract. 

8121. Rights of accommodation indorser (Repealed.) 

8122. Effect of want of consideration. 

8123. Indorsee in due course, what. 
8121. Rights of indorsee in due course. 
8125. Instrument left blank. 

§ 3108. One who writes his name upon a negotiable in 
itrumeut, otherwise than as a maker or acceptor, and delivera 
h;, with his name thereon, to another person, is called an in- 
dorser, and his act is called indorsement. 

§ 3109. One who agrees to indorse a negotiable instra- 
meut is bonnd to write his signature npon the back of the in- 
Itrument, if there is sufficient space thereon for that purpose. 

§ 3110. When there is not room for a signature upon the 
back of a negotiable instrument, a bignature equivalent to an 
indorsement thereof may be made upon a paper annexed 
thereto. 

§ 3111. An indorsement may be general or special. 

§ 3112. A general indorsement is one by which no in- 
lorsee is named. 

§ 3113. A special indorsement specifier the indorsee. 

§ 3114. A negotiable instrument bearing a general in 
dorsement cannot be afterwards specially indorsed ; but any 
lawful holder may turn a general indorsement into a special 
one, by writing above it a direction for payment to a paitio 
tlar person. 



§fdll6-dl22 ITEGOTIABLB HTSTBUMBNTt. 411 

§ 8116. A special indorsement may, by express words for 
that purpose, but not otherwise, be so made as to render thfi 
instrument not negotiable. ^ 

§ 8116. Every indorser of a negotiable instrument, nnleai 
his indorsement is qnalitied, warrants to every subsequent 
holder thereof, who is not liable thereon to him : 

1. That it is in all respects what it purports to be; 

2. That he has a good title to it ; 

3. That the signatures of all prior parties are binding upon 
them; 

4. That if the instrument is dishonored, the indorser will, 
opoK II >tic(^thereof duly given to him, or without notice, where 
It is excused bv law, jiay the same with interest, unless exon- 
eiated under the provisions of sections thirty-one hundred and 
eighty-nine, thirty-two himdred and thirteen, thirty-two hun- 
dred and forty-eight, or thiity-two hundred and fifty-five, [in 
effect July 1, 1874.] 

§ 8117. One who indorses a negotiable instrument before 
it is delivered to the payee is liable to the payee thereon, as 
an indorser. 

§ 8118. An indorser may aualify his indorsement with 
the words, "without recourse, or equivalent words; and 
upon such indorsement, he is responsible only to the same ex- 
tent as in the case of a transfer without indorsement. 

§ 81 19« Exce|)t as otherwise prescribed by the last section, 
an indorsement, without recourse, has the same efifect as any 
other indorsement. 

§ 8120. An indorsee of a negotiable instrument has the 
tame rights against every prior party thereto that he would 
have had if the contract had been made directly between them 
in the first instance. 

§ 8121 of said Code is repealed. [In effect July 1, 1874.] 

§ 8122. The want of consideration for the undertaking 
Df a maker, acceptor, or indorser, of a negotiable instrument 
ioes not exonerate him from liability thereon to an indorse! 
in good faith for a consideration. 

Digitized by VjOOQIC 



iia KSOOTIABLB IN8TBUMBNTB. §§8123~3131 

§ 3123. An indoreee in due conrse is one who, in good 
faith, in th^ ordinary course of business, and for value, before 
its apparent maturity or presumptive dishonor, and without 
know ledge of its actual dishonor, acquires a negotiable instru* 
nient duly indoi-sed to him, or indorsed generally, or payable 
U) the bearer. 
M Cai. 109. 

§ 3124. An indorsee of a ne«>tiable instrument, in du« 
sourse, Acquires an absolute title thereto, so that it is valid in 
his hands, notwithstanding any provision of law making it 
generally vuid or voidable, and notwithstanding any defect la 
the title of the person from whom he acquired it. 

Code CiT. Proo. § 868. 

§ 3126. One who makes himself a party to an instrument 
intended to be negotiable, but which is left wholly or partly 
in blank, fur the pur]>ose of filling afterwards, is liable upon 
the instrument to an indorsee thereof in due course, in wnat- 
ever manner and at whatever time it may be filled, so long ae 
it remains negotiable in form. 



ARTICLE IV. 

PRESENTMENT FOB PATMENT. 

BBCTI05 SISO. Effect of wMit of demand on principal debtor. 
8131. Pretientment, how made. 

8182. Apparent maturity, when. 

8183. Presumptive dishonor of bill, payable after il^l. 

8184. Apparent maturity of bill, payable at sight. 

8186. Apparent maturity of note. 
8188. Same. 

8187. Surrender of initnunent, when a eomditioii of ptyniMit 

§ 3 1 30. It is not necessary to make a demand of payment 
upon the principal debtor in a n^otiable instrument m order 
to charge him ; but if the instrument is by its terms payable 
at a specified place, and he is able and willing to pay it there 
at maturity, such ability and willingness are equivalent to an 
ofier of payment upon his part. 

§ 3131. Presentment of a negotiable instrument for pa|r 
Inent, when necessary, must be made as follows, as nearly at 
hj reasonable diligence it is practicable : 

UU The instrument must be presented by the holder; 
27 



i§ 8182-8125 NEGOTIABLE INSTBUMENTS. 414 

Sd. The instrnment must be presented to the principti] 
debtor, if he can be found at the place where presentment 
ihonld be made ; and if not, then it must be presented to some 
other person having charge thereof, or employed therein, ii 
one can be found there ; 

3d. An instrument which specifies a place for its payment 
must be presented there ; and if the place specified includes 
more than one house, then at the place of residence or business 
of the principal debtor, if it can be found therein ; 

4th. An instrument which does not specify a place for its 
payment must be presented at the place of residence or busi- 
ness of the principal debtor, or wherever he may be found/ at 
the option of the presentor ; and, 

5th. The instrument must be presented upon the day of its 
maturity, or, if it be payable on demand, it may be presented 
upon any day. It must be presented within reasonable hours ; 
snd, if it be payable at a banking house, within the usual 
banking hours of the vicinity, but, by the consent -of the per- 
son to whom it should be presented, it may be presented at 
any hour of the day ; 

6th. If the principal debtor have no place of business, or if 
his place of business or residence cannot, with reasonable dili- 
gence, be ascertained, presentment for payment is excused. 
[In effect July I, 1874.] 

§ 8132. The apparent maturity of a negotiable instni- 
ment, payable at a particular time, is the day on which, by 
its terms, it becomes due, or when that is a holiday, the next 
business day. 

§ 3183. A bill of exchange, payable at a certain time 
after sight, which is not accepted within ten days after its 
date, in addition to the time which would suflSce, with ordinary 
diligence, to forward it for acceptance, is presumed to hava 
been dishonored. 

§ 3184. The apparent maturity of a bill of exchange 
payable at sight or on demand, is : 

1. If it bears interest, one year after its date ; or, 

2. If it does not bear interest, ten days after its date, in ad 
dition to the time which would sufiSce, with ordinary diligence 
to forward it for acceptance. 

§ 8186. The apparent maturity of a promissory 
^yable at sight or on demand, is : 



415 KSQOTIABLE INSTRUHEyTB. §§ 3136'8142 

1. If it beam interest, one year after its date ; or» 

2. If it does not bear interest, six months after its date. 

^ § 3136. Where a promissory note is payable at a certain 
time after si^ht or demand, snch time is to be added to the 
periods mentioned in the last section. 

§ 3137. A party to a negotiable instrument may require, 
as a condition concurrent to its payment by him : 

1. That the instrument be surrendered to him, unless it is 
lost or destroyed, or the holder has other claims upon it ; or 

2. If the holder has a right to retain the instrument and 
does retain it, then that a receipt for the amount paid, or an 
exoneration of the party paying, be written thereon ; or, 

3. If the instrument is lost or destroyed, then that the 
holder give to him a bond, executed by himself and two suffi- 
cient sureties, to indemnify him against any lawful claim 
thereon. 

ARTICLE V. 

DISHONOR OF NEGOTIABLE INSTBUMBITTB. 

Bmtion 8141. Dishonor, what. 

8142. Notice, by whom giren. 

8143. Form of notice. 

8144. Notice, how served. 

8145. Notice, how served after indoner's death. 

8146. Notice giyen in iznoranoe of death, valid. 

8147. Notice, when to be giren. 

8148. Notice of dishonor, when to be mailed. 

8149. Notice, how given by agent. 

81£0. Additional time for notice bj iadotB«r. 
8161. EfFect of notice of dishonor. 

T^K § 3141. A negotiable instrument is dishonored, when h ii 
^ Hther not paid, or not accepted, according to its tenor, on pre« 
^ sentment for the purpose, or without presentment, where that 
^ \b excused. 

§ 3142. Notice of the dishonor of a cegotiable instrument 
may be given : 

1 By a holder thereof ; or 

2. By any party to the instrument who might be compelled 
to pay It to the holder, and who would, upon taking it up, have 
A right to reimbursement from the party to whom the notict 
*i given. ,^,gi,i,ed by GooqIc 

55Cai 407. ^ 



§§ 3143-3149 NEGOTIABLE INSTBUMENT8. 416 

§ 3143. A notice of dishonor may be given in any form 
which deRcribes the instrument with reasonable certainty, and 
substantially informs the party receiving it that the instrument 
has been dishonored. 

57 Cal. 327. 

§ 3144. A notice of dishonor may be given : 

1. By delivering it to the party to be charged, personally, 
At any place ; or, 

2. By delivering it to some person of discretion at the place 
of residence or business of such party, apparently acting for 
him ; or, 

3. By properly folding the notice, directing it to the. party 
to be charged, at his place of residence, according to the best 
information that the person giving the notice can obtain* de- 
positing it in the post office mo^t conveniently accessible from 
the place where the presentment was made, and paying the 
postage thereon. 

67 Gal. 327. 

§ 3146. In case of the death of a party to whom notice of 
dishonor should otherwise be given, the notice must be given 
to one of his personal representatives ; or, if there are none, 
then to any member of his family who resided with him at his 
death ; or, if there is none, then it must be mailed to his last 
place of residence, as prescribed by subdivision 3 of the laat 
section. 

§ 3146. A notice of dishonor sent to a partv after hit 
death, but in ignorance thereof, and in good faith, is valid. 

§ 3147. Notice of dishonor, when given by the holder of 
an instniment or his agent, otherwise than by mail, must be 
given on the day of dishonor, or on the next business day 
thereafter. 

§ 3148. When notice of dishonor is given by mail, it must 
be deposited in the post office in time for the firat mail which 
closes after noon of the first business day succeeding the dis- 
honor, and which leaves the place where the instrument was 
dishonored, for the place to which the notice should be sent. 

§ 3149. When the holder of a negotiable instrument, a 
the time of its dishonor, is a mere agent for the owner, it is 
•ufficient for him to give notice to his principal in the sami 
•yuincr as to an indorse r, and his jrrincipal may give notice U 



i\7 :7EOOTIABLB INSTRUMENTS. §§ 3160- 31 & ^ 

Bnv other party to be charged, as if he were himself an in- 
dorser. And if an ag^ent of the owner employs a sub-agent, it 
18 Hufficiont for each successive agent or sub- agent to give no* 
tice in like manner to his own principal. 

§ 3150. Every party to a negotiable instrument, receiving 
notice of its dishonor, has the like time thereafter to give sim- 
ilar notice to prior parties as the original holder had after its 
dishonor. But this additional time is available only to the 
particular party entitled thereto. 

§ 3151. A notice of the dishonor of a negotiable instni- 
nient, if valid in favor of the party giving it, enures to the ben- 
efit of all other parties thereto whose right to give the like 
Dotice has not then been lost. 



ARTICLE VI. 

EXCUSE OP PRESENTMENT AND NOTICE. 

SxonoN 8155. Notice of dishonor, when exctued. 

8156. Preeentment and notice, when excused. 

8157. Same. 

8158. Delay, when excused. 

8159. Waiver of presentment and notice. 

8160. Waiver of protest. 

§ 8155. Notice of dishonor is excused : 

1. When the party by whom it should be given cannot, 
with reasonable diligence, ascertain either the place of resi- 
dence or business of the party to be charged ; or, 

2. When there is no post office communication between the 
town of the party by whom the notice should be given and 
the town in which the place of residence or business of the 
party to be charged is situated ; or, 

3. 'When the party to be charged is the same person who 
dishonors the instrument; or, 

4. When the notice is waived by the party entitled thereto. 

§ 3156. Presentment and notice are excused as to any 
party to a negotiable instrumert who informs the holder, 
(rithin ten days before its maturity, that it will be dishonored. 

^ 8157. If, before or affcer the maturity of an instrument, 
to ittdorser has received full security for the amount, thereof 



S§ 3168-3166 NEGOTIABLE INSTBUMENTS. 418 

or the maker has assigned all his estate to him as such secur- 
Uy, presentment and notice to him are excused. 

§ 3168. Delay in presentment, or in giving notice of di§. 
nonor, is excused when caused by circumstances which the 
party delaying could not have avoided by the exercise of rea- 
sonable care and di.igence 

§ 3169. A waiver of presentment waives notice of di# 
honor also, unless the contrary is expressly stipulated ; but a 
waiver of notice does not waive presentment. 

§ 3160. A waiver of protest on any negotiable instrument 
other than a foreign bill of exchange waives presentment and 
notice. 

ARTICLE VII. 

EXTINCTION OF NEGOTIABLE INSTRUMENTS. 

Section 8164. Obligation of party, when extinguished. 
8166. BeviTal of obligation. (Repealed.) 

§ 3164. The obligation of a party to a negotiable instru- 
ment is extinguished : 

1. In like manner with that of parties to contracts in gen 
eral; or, 

2. By payment of the amount due upon the instrument, at 
or after its maturity, in good faith and in the ordinary courM 
of business, to any person having actual possession thereof 
and entitled by its terms to payment. 

§ 3166 of said Code is repealed. [In effect July 1, 187-..* 



CHAPTER II. 

BILLS OF EXCHANGE. 

^■nou I. Form amd Iktxrpretation, §§ 8171-3177. 

II DATS op Grace, § 3181. 

III. Presentment for Accfptance, §§818&-8189. 

IV. Acceptance, §§ 3193-43199. 

V. Acceptance or Payment for Honor, ^§ 8208-8207 
VI Presentment for Payment, §§ 3211-8^14. 
VII. Excuse of Pre.sentmext and Notice, $$ ffllS-SaO^l^ 
VIII Foreign Bills, §§ 3224-3238. ^g^^ 



119 VBOOTIABLB IN8TBUMENTS. {f 8171-817? 

ARTICLE I. 

FORM AND INTBRPRETATION OF A BILL. 

SlonOH 817L Bill of exchange, what. 
8172. Drawee, in case of need. 
8178. Bill in parts of a set. 

8174. When must be in a set. 

8175. Presentment, &c., of part of set. 

8176. Bill, where payable. 

8177. Rights and obligations of drawer. 

§ 8171. A bill of exchange is an instrument, negotUblt 
in form, by which one, who is called the drawer, reqaests a» 
»ther^ called the drawee, to pay a 8])ecified sum of money* 

§ 8172. A bill of exchange may give the name of any 
person in addition to the drawee, tu be resoited to in case of 
need. 

§ 8173. A bill of exchanpre may be drawn in any number 
of parts, each part stating the existence of the others, and all 
forming one set. 

§8174. An agreement to draw a bill of exchange bindf 
the drawer to execute it in three parts, if the other party to 
the agreement desires it. 

§ 3176. Presentment, acceptance, or payment, of a single 
part in a bet of Hi bill of exchange, is sufficient for the whole. 

§ 3176. A bill of exchant^e is pnyable : 

1. At the place where, by its terms, it is made payable ; or, 

2. If it specify no place of payhient, then at the place to 
rhich it is addrtssed ; or, 

3. If it be not addressed to any place, then at the place of 
residence or business of the drawee, or wherever ha may be 
found. 

If the drawee has no place of business, or if his place of 
business or residence [cannot] with reasonable diligence be 
ascertained, presentment for payment is excused, and the bill 
may be protested for non-payment. [In effect July 1, r874.] 

I 8177. The rights and obligations of the drawer of « 
Mil of exchange are the same as those of the first indorser o| 
IBJ olher u^^tiable instrument. 



|§ 3181-3188 NBGOTIABLB INST&UMBNTt. 

ARTICLE n. 

DATS OF ORACB. 
Sbciion 3181 Days of gxam. 
§ 8181. Days of grace are not allowed. 

ARTICLE III. 

PRE8BNTMBNT FOR AOCEPTANOB. 

iMnoii 8185. When a bill may be presented. 

8186. Presentment, how made. 

8187. Presentment to joint drawees. 

8188. Mlien presentment to be made to drawee in case of 

8189. Presentment, when must be made. 

§ 3186. At any time before a bill of exchange is payable 
the holder may present it to the drawee for acceptance, and il 
acceptance is refused, the bill is dishonored. 

§ 8186. Presentment for acceptance must be made in tiie 
following manner, as nearly as by reasonable diligence it It 
practicable : < 

1. The bill must be presented by the holder or his agent; 

2. It must be presented on a business day, and within rea- 
sonable hours ; 

3. It must be presented to the drawee, or^if he be absent 
from his place of residence or business, to some person having 
charge thereof, or employed therein ; and, 

4. The drawee, on such presentment, may postjione his aiy 
ceptance or refusal until the next day. If the drawee have no 
place of business, or if his place of business or reLidence can- 
not, with reasonable diligence, be ascertained, presentment for 
acceptance is excused, and the bill may be protested for non- 
acceptance. [In effect July 1, 1874.] 

§ 3187. Presentment for acceptance to one of several 
Joint drawees, and refusal by him, dispenses with presentment 
to the others. 

§ 8188. A bill of exchange which specifies a (^f^iree fai 
MM of need, must be presented to him for accepts ^ a ^ paj 



121 VBOOTIABLB INSTRUMBNTS. §§ 3189-9196 

ment, as the caBe maj be, before it can be treated as dis 
honored. 

§ 8189. When a bill of exchange is payable at a specified 
time after sight, the drawer and indorsers are exonerated if 
it is not presented for acceptance within ten days after thd 
time which would suffice, with ordinary diligence, to forward 
it for acceptance, unless presentment is excused. 



ARTICLE IV. 

▲CCEPTANCB. 

BlonON 8193 Acceptance, how made. 

8194 Holder entitled to acceptance on face of bill. 

8196. What acceptance safflcient with consent of hold*> 
8198. Acceptance by separate instrument. 

8197. Promise to accept, when equivalent to acceptance. 

8198. Cancellation of acceptance. 

8199. What is admitted by acceptance. 

§ 3193. An acceptance of a bill must be made in wn,iiiff^ 
by the drawee or by an acceptor for honor, and -may be made 
b^ the acceptor writing his name across the face of the 'biU, 
with or without other words. 

§ 3194. The holder of a bill of exchange, if entitled to an 
acceptance thereof, may treat the bill as dishonored if the 
drawee refuses to write across its face an unqualified accept- 
ance. 

§ 3195. The holder of a bill of exchange may, without 
prejudice to his rights against piior parties, receive and treat 
as a sufficient acceptance : 

1. An acceptance written upon any part of the bill, or npon 
a separate paper ; 

2. An acceptance qualified so far only as to make the biU 
payable at a particular place withm the city or town in which, 
if the acceptance was unqualified, it would be payable ; or, 

3. A refusal by the arawee to return the bill to the holdef 
"^ter presentment, in which case the bill is payable immedi- 
Ately, without regard to its terms. 

§ 8196. The acceptance of a bill of exchange, by a §6p 
Jtfste instrument, binds the acceptor to one, who, upon tfii 



K 3197-8206 NBGOTIABLB IN8TRnMr.NTS. 4SS 

fluth thereof, has the bill for value or other good oonsideni- 
aon. 

§ S197. An unconditional promise, in writing^, to accept a 
bill of exchange, is a sufficient acceptance thereof, in favor of 
every person who upon the fairh thereof has taken the bill for 
value or other good consideration. 

§ 3198. The acceptor of a bill of exchange mav cance 
his acceptance at any time before delivering the bill to the 
holder, and before the holder has, with the consent of the ac- 
ceptor, transferred his title to another person who has givem 
ralne for it upon the faith of such acceptance. 

§ 3199. The acceptance of a bill of exchange admits the 
signature of a drawer, but does not admit the sio^nature of an}* 
indorser to be genuine. [In effect July 1, 1874.] 



ARTICLE V. 

ACCEPTANCE OR PAYMENT FOR HONOR. 

01OnON 8203. When bill may be accepted or paid for honor. 

8204. Ilolder of bill of exchange bound to accept payment te 

honor. 

8205. Acceptance for hoiior, how made. 

8206. Ilow enforced. 

8207 Notice of dishonor not excused by acceptance for honor. 

§ 3203. On the dishonor of a bill of exchange bj the 
drawee, and, in case of a foreign bill, after it has been duly 
protested, it may be accepted or paid by any person, for the 
nonor of any party thereto. 

§ 3204. The holder of a bill of exchange is not bound 
to allow it to be accepted for honor, but is bound to accept 
payment for honor. 

§ 3205. An acceptor or payor for honor must write • 
memorandum upon the bill, stating therein for whose honoi 
he accepts or pays, and must give notice to such parties, with 
reasonable diligence, of the fact of such acceptance or pay- 
Hent. Having done so, he is entitled to reimbursement I 
tneh parties, and from all parties prior to them. 

uigitized by Google 



123 NEQOTIABLB INBTRUHENTS. §§ 820(5-8214 

§ 8206. A bill of exchange which has been accepted for 
Honor must be presented at its maturity to the drawee for 
payment, and notice of its dishonor by him must be given to 
the acceptor for honor, in like manner as to an indorser* 
after which the acceptor for honor must pay the bill. 

§ 8207. The acceptance of a bill of exchange for honor 
does not excuse the holder from giving notice of its dishonor 
by the drawee. 

ARTICLE VI. 

PRBSENTMEXT FOR PAYMENT. 

Sionozf 8211. Presentment, when bill not accepted, where mado. 

8212. Presentment of bill, payable at particular place. 

8213. Effect of delay in presentment, in certain cases. 

8214. Effect in other cases. 

§ 8211. If a bill of exchange is by its terms payable at a 
particular place, and is not accepted on presentment, it must 
Be presented at the same place for payment, when present* 
ment for payment is necessary. 

§ 3212. A bill of exchange, accepted payable at a partic- 
ular place, must be presented at that place for payment, when 
presentment for payment is necessary, and need not be pre- 
sented elsewhere. 

§ 8218. If a bill of exchange, payable at sight or on de- 
mand, without interest, is not duly presented for payment 
within ten days after the time in which it could, with reason- 
able diligence, be transmitted to the proper place for such 
' presentment, the drawer and indorsei-s are exonerated, unless 
such presentment is excused. 

§ 8214. Mere dd&j in presenting a bill of exchange pay- 
ftble with interest, at sight or on demand, does not exonerate 
%nj party thereto. 



,y Google 



§S 3218-3226 ihegotiablb inbtbumbvts. 4S# 

ARTICLE Vn. 

XXCUSB OV PRESENTMENT AND NOTICE. 

SxonoN 8218. Presentment, when excused. 
8219. Delay, when excused. 
^20. Presentment and notice, when excused. 

§ 8218. The presentment of a bill of exchange for accept* 
Rnce is excused if the drawee has not capacity to accept it. 

§ 3219. Delay in the presentment of a bill of exchange 
for acceptance is excused, when caused by circumstances over 
which the holder has no control. 

§ 8220. Presentment of a bill of exchange for acceptance 
or payment, and notice of its dishonor, are excused as to the 
drawer, if he forbids the drawee to accept, or the acceptor to 
pay the bill ; or if, at the time of drawing, he had no reason 
to belieye that the drawee would accept or pay the same. 



ARTICLE Vm. 

FOBBIGN BILLS. 

SlonON8224. Definitions. 

8226. Protest necessary. 

8226. Protest, by whom made. 

8227. Protest, how made. 

8228. Protest, where made. 

8229. Protest, when to be made. 

8230. Protest, when excused. 

8231. Notice of protest, how given. 

8232. Waiver of protest. 

8238. Declaration before payment for honor. 

8234. Damages allowed on dishonor of foreign Mil. 

8235. Rate of damages. 

8236. Interest on amount of protested bill. 

8287. Damages, how estimated. 

8288. Same. 

§ 8224. An inland bill of exchange is one drawn and pay 
ftble within this State. All others are foreign. 

S 8226. Notice of the dishonor of a foreign bill of ex" 
thange can be given only by notice of its protest. 



*S5 ITBQOTIABLB INBTBUMBNTS. §§ 8226-3238 

S.8226. Protest must be made by a notarj public, If with 
reasonable diligence one can be obtained; and if not, then 
by any reputable person in the presence of two witnesses. 

§ 8227. Protest must be made by an instrument in writ- 
ing, giving a literal copy of the bill of exchange, with all that 
Ss written thereon, or annexing the original ; stating the pre- 
Kntmeut, and the manner in which it was made ; the presence 
jr absence of the drawee or acceptor, as the case may be ; the 
"efiisal to accept or to pay, or the inability of the drawee to 
^ve a binding acceptance ; and in case of refusal, the reason 
assigned, if any ; and, finally, protesting against all the parties 
to bi charged. 

§ 8228. A protest for non-acceptance must be made in the 
*»ty or town in which the bill is presented for acceptance, and 
% protest for non-payment in the city or town in which it is 
■tfresented for payment. 

§ 8229. A protest must be noted on the day of present- 
iment, or on the next business day ; but it may be written out 
MS any time thereafter. 

§ 8280. The want of a protest of a foreign bill of ex- 
*hange, or delay in making the same, is excused in like caset 
irith the want or delay of presentment. 

§ 8281. Notice of protest must be given in the same man 
ner as notice of dishonor, except that it may be given by the 
notary who makes the protest. 

§ 3282. If a foreign bill of exchange on its face waives 
protest, notice of dishonor may be given to any party thereto, 
m like manner as of an inland bill; except that if any in- 
iorser of such a bill expressly requires protest to be made, by 
A direction written on the bill at or before his indorsement, 
protest must be made, and notice thereof given to him and to 
all subsequent indorsers. 

§ 8233. One who pays a foreigp bill of exchange for 
honor must declare, before payment, in the presence of a per- 
son authorized to make protest, for whose nonor he pays tht 
tame, in order to entitle him to reimbursement. 

jgitizedbyGoOgle 



f§ 3234-8238 negotiable instrumbntb. 42* 

§ 3234. Damages are allowed as hereinafter prescribed, 
as a full compensation for interest accrued before notice oi 
dishonor, reexchange, expenses, and all other damages, in fa- 
vor of holders for value only, upon bills of exchange drawn oi 
negotiated within this State, and protested for non-acceptanoe 
or non-payment. 

§ 3236. Damages are allowed under the last section npon 
bills drawn upon any person : 

1. If drawn npon any person in this State, two dollars npon 
each one hundred dollars of the principal sum specified in the 
bill ; 

2. If drawn upon any person out of this State, but in any 
of the other states west of the Rocky Mountains, five dollars 
npon each hundred dollars of the principal sum specified in 
the bill ; 

3. If drawn npon any person in any of the United States 
east of the Rocky Mountains, ten dollars upon each hundred 
dollars of the principal sum specified in the bill ; 

4. If drawn upon any person in any place in a foreign 
country, fifteen dollars upon each hundred dollars of the prin- 
cipal sum specified in the bill. 

§ 3236. From the time of notice of dishonor and demand 
of payment, lawful interest must be allowed upon the aggre- 
gate amount of the principal sum specified in the bill, ani the 
damages mentioned in the preceding section. 

§ 3237. If the amount of a protested bill of exchange 
is expressed in money of the United States, damages aie 
estimated upon such amount without regard to the rate of 
exchange. 

§ 3238. If the amount of a protested bill of exchange li 
expressed in foreign money, damages are estimated upon thf 
vame of a similar bill at the time of protest, in the place near 
est to the place where the bill was negotiated and where sock 
bills are currently sold. 



,y Google 



417 VSGOTIABLB IVSTBUMBNTS. §§ 8244-8264 

CHAPTER ra. 
PROMISSORY NOTES. 

Bmjtum 8244. lYomissory note, what. 

8245. Certain instruments promissory notes. 

8246. Bill of exchange, when converted into a note. 

8247. Certain sections applicable to notes. 

8248. Effect of delay in presentment. 

§ 3244. A promissory note is an instrument, negotiable 
in form, wnereby the signer promises to pay a specified snm 
Off money. 

§ 8245. An instrument in the form of a bill of exchaiiffie, 
but drawn upon and accepted by the drawer himself, is to M 
deemed a promissoiy note. 

§ 8246. A bill of exchange, if accepted, with the consent 
of the owner, by a person other than the drawee, or an sc- 
reptor for honor, becomes in effect the promissory note of 
Bnch person, and all prior parties thereto are exonerate«L 

§ 3247. Chapter I. of this title, and sections 3181 and 
8214 of this Code, apply to promissory notes. 

§ 8248. If a promissory note, payable on demand, or al 
li^ht, without interest, is not duly presented for payment 
within six months from its date, the indorsers thereof ano 
txoncrated, unless such presentment is excused. 



CHAPTER IV. 
CHECKS 

SionoN 82&4. Check, what 

8265. Rules applicable to checks. 

§ 8254. A check is a bill of excharge drawn upon a bank 
01 banker, or a person described as such upon the face thereof 
uid payable on demand, without interest. 



§§ 9866-8268 obnsbal pboviskhis. 49S 

S 8266. A check is subject to all the provinonfl of thii 
Code concerning bills of exchange, except that : 

1. The drawer and indoi-sers are exonerated bj delay in 

S resentment, only to the extent of the injury which they sufief 
tiereby ; 

2. An indorsee, after its apparent maturity, but without 
actual notice of its dishonor, acquires a title equal to that ol 
an indorsee before such period. 



CHAPTER V. 

BONDS, BANK NOTES, AND CBBTIFICATS8 OF 
DEPOSIT. 

Ssonoir 8261. Bank note negotiable after payment. 

8262. Title acquired by indonee. (Bepealed.) 

i 8261. A bank note remains negotiable, oven after it hat 
been paid by the maker. 

I 8262 of said Code is repealed. [In effect July 1^ ]«74.^ 



TITLE XVL 

GENERAL PROVISIONS. 

filcnoN 8268. FftrtieB may waive provislonB of Code. 

I 8268. Except where it is otherwise declared, the pro- 
visions of the foregoing fifteen titles of this part, in respect 
to the rights and obligations of paities to contracts, are sub- 
ordinate to the intention of the parties, when ascertained in 
tie manner prescribed by the Chapter on the Intei-pretation 
of Contracts ; and the benefit thereof may be waived by any 
party entitled tliereto, unless such waiver would be again^ 
pubhc policy 

Digitized by VjOOQIC 



DIVISION FOURTH. 



Part I. RELIEF, §§ 3274-3423. 

11. SPECIAL RELATIONS OF DEBTOR 

AND CREDITOR, §§ 3429-3473. 
m. NUISANCE, §§ 3479-3503. 
IV. MAXIMS OF JURISPRUDENCE, Si 
3509-3543. 



,y Google 



,y Google 



PART L 



RELIEF. 

TiTLB 1 Rrlief in General, §§ 3274-3275. 
II CoMPENSATORT Relief, §§3281-3360. 
Ill Specific and Preventive Relief, §§ S366-MSS 



TITLE L 

RELIEF IN GENERAL. 

SxcnoN8274. Species of relief . 

8275. BeUef in case of forfeiture. 

§ 3274. As a general rule, compensation is the relief or 
remedy provided by the law of this State for the violation ol 
private rights, and the means of securing their observance ; 
and specific and preventive relief may be given in no other 
cases than those specified in this part of the Civil Code. 

§ 32"'5. Whenever, by the terms of an obligation, a party 
thereto incurs a forfeiture, or a loss in the nature of a forfeit- 
are, by reason of his failure to comply with its provisions, he 
may be relieved therefrom, upon making full compensation to 
the other party, excep-: in case of a grossly negligent, wiliol^ 
n fiauiulent breach of duty. 



TITLE XL 
COMPENSATORY RELIEF. 

Chapter I. Damages in General, §§ 3281-3294. 
II. Measure of Damages, §§ 3300-3360. 



f§ 3281-3287 compensatobt belief. i3t 

CHAPTER L 
DAMAGES IN QENERAIi. 

ABTICLS I. GSNERAL PKINOIPLKS, §§8281-8288. 

II. INTERBST AS D AM A QBS, §§3287^3290. 

III. £xxMPLAH Damaqes, § 3294. 
ARTICLE I. 

GENERAL PBINGIPLES. 

Iionbir 3281. Pereon sufFering detriment may recoTer damages 

8282. Detriment, what. 

8283. Injuries resulting or probable after suit brought 

§ 8281. Every person who suffers detriment from the un-' 
lawful act or omission of another may recover from the per- 
son in fault a compensation therefor in money, which is called 
damages. 

§ 3282. Detriment is a loss or harm suffered in person oi 
property. 

§ 3283. Damages may be awarded, in a judicial proceed* 
ing, for detriment resulting after the commencement thereof 
or certain to result in the future. 



ARTICLE II. 

INTEREST AS DAMAGES. 

IscnoN 3287. Person entitled to recover damages may recover intefeiit 
thereon. 
3288 Tn actions other than contract. 

8289. Limit of rate by contract. 

8290. Acceptance of pr'ncipal waives claim to interest. 

§ 3287. Every person who is entitled to recover damages 
certain, or capable of being made certain by calculation, and 
fche right to recover which is vested in him upon a particular 
day, is entitled also to recover interest thereon from that day, 
•xcept during such time as the debtor is prevented b}' law, ox 
oy the act of the ci-editor, from pay in -j the debt. 

67Cal. 366. r ^ ^ 



133 COMPEKSATORT BELIEF. §§ 3288-8294 

§ 8288. In an action for the breach of an obligation no. 
arising from contract, and in every case of oppression, fraad, 
or malice, interest may be given, in the discretion of the jury. 

§ 8289. Any legal rate of interest stipnlated by a con 
tract remains chargeable after a breach thereof, as before, un* 
til the contract is superseded by a verdict or other new obliga- 
tion. 

§ 8290. Accepting payment of the whole principal, M 
inch, waives all claim to interest. 



ARTICLE III. 

EXEMPLARY DAMAGES. 

SionoN 3291. Exemplazy damages, in what cases allowed. 

§ 3294. In any action for the breach of an obligation not 
arising from contract, where the defendant has been guilty of 
oppression, fraud, or malice, actaal or presumed, the jury, in 
addition to the actual damages, may give damages for tbie 
sake of example, and by way of punishing the defendant. 



CHAPTER II. 

MEASURE OF DAMAGES. 

Aaticu 1 Dahacbs fob Brkach of Contract, §§ SdOO-SSlA. 

II Damages por Wronos, §§ 333S-3d40. 

III Pknal Damages, §§ 3344-3348. 

IV Qrmral Provisions, §§ 33i>3^3800. 

ARTICLE I. 
DAMAGES FOR BREACH OF CONTRACT. 

Ibction 8300. Measure of damages for breach of contract. 

8301. Damages must be certain. 

8302. Breach of contract to pay liquidated sum 
WOS. Dishonor of foreign bills of exchange. 

8804. Detrijient caused by breach of coTenant of seisin, i 
whAt is. 



|§ 3300-3304 GOXPENSATOBT RBLIBF. 4S. 

liOTiON 8S05. Detriment caused by breach of coTenant against iBcna 
brances, is what. 
8806. Breach of agreement to convey real property. 

8307. Breach of agreement to buy real property. 

8308. Breach of agreement to sell personal property not paid 

for. 

8309. Breach of agreement to sell persenal property paid for. 
3310. Breach of agreement to pay for personal property sold. 
8811. Breach of agreement to buy personal property. 

8312. Breach of warranty of title to personal property 

8313. Breach of warranty of quality of personal property. 

8314. Breach of wan-anty of quality for special purpose. 

8315. Breach of carrier's obligation to receive goods, &c, 

8316. Breach of carrier's obligation to deliver. 

8317. Carrier's delay. 

8318. Breach of warranty of authority. 

8319. Breach of promise of marriage. 

§ 3300. For the breach of an obligation arising from con- 
Iract, the measure of damages, except where otherwise ex- 
pressly provided by this Code, is the amount which will com- 
pensate the party aggrieved for all the detriment proximately 
eaused thereby, or which in the ordinary course of thing* 
would be likely to result therefrom. [In effect July 1, 1874.] 

§ 3301. No damages can be recovered for a breach of con- 
tract which are not clearly ascertainable in both their nature 
find origin. 

§ 3302. The detriment caused by the breach of an obliga 
*ion to pay money only, is deemed to be the amount due T)jp 
the terms of the obligation, with iuterost thereon. 

§ 3303. For the dishonor of foreign bills of exchange thfl 
damages are prescribed by sections 3235, 3237, and 3238. 

§ 3304. The detriment caused by the breach of a cove- 
nant of " seizin," of *' rigbt to convey," of " warranty," or of 
'* quiet enjoyment," in. a (^*rant of an estate in real property, is 
dt-emed to be : 

1. The price paid to the grantor ; or if the breach is par- 
tial only, such proportion of the price as the value of the 
property affected by the breach bore at the time of the grant 
to the value of the whole property ; 

2. Interest thereon for the time during which the grantee 
lerived no benefit from the property, not exceeding fivf 



135 OOHPBirflATOBT RBLIBT. f § 8806-3310 

S. Any expenses properly incurred by the covenantee in de- 
fending his possession. 

§ 8306. The detiiment caused by the br«ich of a covenant 
Against incumbrances, in a grant of an estate in real prop<-rty, 
is deemed to be the amount which has been actually expended 
by the covenantee in extinguishing either the principal or in- 
terest thereof, not exceeding in the former case a proportion 
of the price paid to the grantor equivalent to the relative value 
at the time of the grant, of the property affected by the breach, 
as compared with the whole, or, in the latter case, interest on 
a like amount. 

§ 3306. The detriment caused, by the breach of an agree- 
ment to convey an estate in real property is deemed to be the 
price paid, and the expenses properly incurred in examining 
the title and preparing the necessary papers, with Interest 
thereon ; but suidin^ thereto, in case of bad faith, the differ- 
ence between the price agreed to be paid and the value of the 
estate agreed to be conveyed, at the time of the breach, and 
the expenses properly incurred in preparing to enter upon the 
land. 

65 Cal. 41. 

§ 3307. The detriment caused by the breach of an agree- 
ment to purchase an* estate in real property is deemed to be 
the excess, if anv, of the amount which would have been due 
to the seller, under the contract, over the value of the prop- 
erty to him. 

§ 3308. The detriment caused by the breach of a seller's 
agreement to deliver peri>onal property, the price of which has 
not been fully paid in advance, is deemed to be the excess. 
If any, of the value of the property to the buyer, over the 
amount which would have been due to the seller under the 
contract, if it had been fulfilled. 

§ 3309. The detriment caused by the breach of a seller's 
Agreement to deliver personal property, the price of which 
oas been fully paid to him in advance, is deemed to be the 
wame as in case of wrongful conversion. 

I 3810. The detriment caused by the breach of a buyer*! 
•greement to accept and pay for personal property, the tit]« 
40 Thich is vested in him, is deemed to be the contract price 



fS 3311-3316 COMPENSATORY BELIEF. 43f 

§ 3311. The detriment caused by the breach of a bujer^ft 
Agreement to accept and pa^ for personal property^ the title to 
which is not vested in him, is deemed to be : 

1. If the property has been resold, pursuant to section 3049, 
the excess, if any, of the amount due from the buyer, under 
the contract, over the net proceeds of the resale ; or, 

2. If the property has not been resold in the manner pre- 
Bcribed by section 3049, the excess, if any, of the amount due 
from the buyer, under the contract, over the value to the 
teller, together with the excess, if any, of the expenses prop- 
erly incurred in carrying the property to market, over thos« 
which would have been incurred for the carriage thereof, if the 
buyer had accepted it. 

§ 3312. The detriment caused by the breach of a warranty 
of the title of personal property sold is deemed *^ be the value 
thereof to the buyer, when he is deprived of its possession, 
together with any costs which he has become liable to pay in 
an action brought for the property by the true owner. 

§ 3313. The detriment caused by the breach of a war- 
ranty of the quality of personal property is deemed to be the 
excess, if any, of the value which the property would have 
had at the time to which the warranty referred, if it had been 
compUed with, over its actual value at that time. 

§ 3314. The detriment caused by the breach of a warranty 
of the tituess of an article of personal property for a particu- 
lar purpose is deemed to be that which is defined by the last 
section, together with a fair compensation for the loss incurred 
by an effort in good faith to use it for such purpose. 

§ 3315. The detriment caused by the breach of a carrier'* 
^)bligation to accept freight, messages, or passengers is deemed 
to be the difference between the amount which he had a righc 
to charge for the carriage and the amount which it would be 
necessary to pay for the same service when it ought to be per- 
formed. 

§ 3316. The detriment caused by the oreach of a carrier's 
obligation to deliver freight, where he has not converted it to 
Ais own use, is deemed to be the value thereof at the place and 
on the day at which it should have been delivered, deducting 
the freightage to which he would have been entitled if he haa 
completed the deli \erv. 



137 COMPBirSATORT SSLIBF. §§3317-8884 

§ 331 7* The detriment caused by a carrier's delay in the 
delivery of freight is deemed to be the depreciation in the in 
fcrinsic value of the freight daring the delay, and also the de- 

Ereciation, if any, in the market value thereof, otherwise than 
y reason of a depreciation in its intrinsic value, at the plac9 
where it ought to have been delivered, and between the day at 
which it ought to have been delivered and the day of its act- 
ual delivery. 

§ 3818. The detriment caused by the breach of a waiw 
ranty of an agent's authority is deemed to be the amount 
which could have been recovered and collected from his prin- 
cipal if the warranty had been complied with, and the reason- 
able expenses of legal proceedings taken, in good faith, to en- 
force the act of the agent against his principal. 

§ 8319. The damages for the breach of a promise of maiw 
riage rest in the sound discretion of the jury. 

ARTICLE n. 

DAMAGES FOB WB0N08. 

9I0TX01I 8383. Breach of obligation other than eontiMt. 
8334. Wrongful occupation of real property 
8886. Wilful holding over. 

8836. Conversion of personal property. 

8837. Same. 

8338. Damages of lienor. 

8889. Seduction. 

8310. Injuries to animals 

§ 8333. For the brea^^h of an obligation not arising from 
contract, the measure of ilama<:-es, except where otherwise ex- 
pressly provided by this Code, is the amount which will com- 
pensate for all the detriment proximately caused thereby, 
whether it could have been anticipated or not. 

63 Cal. 58 ; 56 Cal. i82, 218 ; 58 Cal. 242, 357. 

§ 3334. The detriment caused by the wrongful occupation 
of real property, in cases not embraced in sections 3335, 3344, 
and 3345 of this Code, or section 1174 of the Code of Civil 
Procedure, is deemed to be the value of the use of the property 
for the time of such occupation, not exceeding five years next 
Dreceding the commencement of the action or proceeding U 
snforce the right to damages, and the costs, if any, of recover 
W the possession. ^ , 

uigitizedbyLjOOgle 



U 3335-3341 coMPBirsATOBr bblixv. 49t 

§ 3385. For wilfully holding over real p^roperty, by a per 
■on who entered upon the same, as guardian or trustee for 
an infant, or by right of an estate terminable with any life or 
lives, after the termination of the trust or particular estate, 
without the consent of the party immediately entitled after 
such termination, the measure of damages is the value of the 
profits received during such holding over. 

§ 3336. The detriment caused by the wrongful conversion 
of pei'sonal property is presumed to be : 

1. The value of the property at the time of the conversion, 
with the interest from that time ; or, where the action has been 
prosecuted with reason ahle dili«j:ence, the highest market value 
of the property at any time between the conversion and the 
verdict, without interejit, at the option of the injured party ; 
and, 

2. A fair compensation for the time and money properly 
expended in pursuit of the property. [In effect January 22, 
1878.] 

fiO Cal. 115 ; S8 Cal. 278; 64 Cal. 194 j 67 Oal. 326 ; 68 Cal. 242. 

§ 3337. The presumption declared by the last section can 
not be repelled, in favor of one whose possession was wrongful 
from the beginning, by his subsequent application of the prop- 
ert7 to the benefit of the owner, without his consent. 

§ 3338. One having a mere lien on personal property 
cannot recover greater damages for its conversion, from one 
having a right thereto superior to his, after his lien is dis- 
charged, than the amount secured by the lien, and the com- 
pensation allowed by section 3336 tor loss of time and ex- 
penses. 

§ 3339. The damages for seduction rest in the sound dis- 
eretion of the jury. 

§ 3340. For wrongful injuries to animals being subjects 
of property, committed wilfully or by gross negligence, in 
disregard of humanity, exemplary damages may be given. 

BogB are Property, Penal Code, § 491 j injury to, Penal Code, § 697. 

§ 3341. The owner, possespor, or harborcr of any dog or 
other auiinal that shall kill, worry, or wound anv sheep, An- 
gora or Cashmere goats, .^hall be liable lo the owner of the 
same for the damages and coj-ts of suit, to be recovered befor« 
^iiy court of competent jurisdiction. 



IM COMFBVSATORT SBLIBT. §§ 8344-334 i 

1. In the prosecution of actions under the provisions of 
this chapter, it shall not be necessary for the plaintiff to show 
that the owner, possessor, or harborer of such dog or other 
animal had knowledge of the fact that such dog or other ani- 
mal would kill or wound such sheep or goats. 

2. Any person on finding any dog or dogs not on the prem- 
ises of its owner or possessor worrying, wounding, or killing 
any sheep. Angora or Cashmere goats, may, at the time of so 
finding said dog or dogs, kill the same, and the owner or own- 
ers thereot shall sustain no action for damages against any per- 
son so killing such dog or dogs. [Approved March 13, 1883.] 

ARTICLE m. 

PENAL DAMAGES. 

SwnoN 3314. Failure to quit, after notice. 
8845. Tenant wilfully holding over. 
8346. Injuries to trees, &g. 
8847. Injuries inflicted in a duel. 
8348. Same. 

§ 3344. If anj tenant give notice of his intention to quit 
ihe premises, and does not deliver up the possession at the 
time specified in the notice, he must pay to the landlord treble 
rent during the time he continues in possession after sach no- 
tice. 

Code CiT. Pioo. $ 1162. 

§ 3345. If any tenant, or any person in collusion with the 
tenant, holds over any lands or tenements after demand made 
and one month's notice, in writing given, requiring the pos- 
session thereof, such person hol(Ung over must pay to the 
landlord treble rent during the time he continues in possessioii 
after such notice. 

Code Civ. Proc. §§ 1162, 1174. 

§ 3346. For wrongful injuries to timber, trees, or under- 
wood upon the land of another, or removal thereof, the meas- 
ure of damages is three times such a sum as would compensate 
for the actual detriment, except where the trespass was casual 
and involuntary, or committed under the belief that the land 
belonged to the trespasser, or where the wood was taken by 
the authority of highway officers for the purposes of a high' 
ray ; in which cases the damages are a sum equal to the act 
oal detriment. 

§ 8347. If any person slays or permanently disables an* 

lkthf>r np.rxnn in a HiiaI in f.hia ST.at.A thfl nlavAr Tnnnt nrnvid* 



if 3348-8856 coMPsirflATOST bblibf. Ut 

*^or the maintenance of the widow or wife of the person sUiui 
or permanently disabled, and for the minor children, in such 
manner and at such cost, either by aggregate compensation iv 
dajiages to each, or by a monthly, quaiterly, or annual allow 
ance, to be determined by the court. 
Duels and Challenges. See Penal Code, §§ 225-282. 

§ 8348. If any person slays or permanently disables an- 
other person in a duel in this State, ttie blayer is liable for and 
must pay all debts of the person slain or permanently disabled 

ARTICLE IV. 

OEKBRAL PROVISIONS. 

iKmoH 8858. Value, how estimated in faror of seller. 

8854. Value, how estimated In faTor of buyer. 

8855. Property of peculiar value. 

8856. Value of thing in action. 

8857. Damages allowed in this ohapter, exoluslTe of othen. 
8358. Limitation of damages. 

8859. Damages to be reasonable. 
8360. Nominal dftmages. 

§ 3858. In estimating damages, the value of property to 
A soller thereof is deemed to be the price which he could have 
obtained therefor in the market nearest to the place at which 
it should have been accepted by the buyer, and at such time 
after the breach of the contract as would have sufficed, with 
reasonable diligence, for the seller to effect a resale. 

§ 3854. In estimating damages, except as provided by 
sections 3355 and 3356, the value of property, to a buver or 
owner thereof, deprived of its possession, is deemed to be the 
price at which he might have bought an equivalent thing in 
the market nearest to the place where the property ought to 
have been put into his possession, and at such time after the 
breach of duty upon which his right to damages is founded as 
would suffice, with reasonable diligence, for him to make such 
a purchase. 

§ 8355. "Where certain property has a peculiar value to a 
person recovering damages for deprivation thereof, or injury 
thereto, that may be deemed to be its value against one who 
had notice thereof before incurrinc: a liability to damages in 
respect tliereof, or against a wilful wrongdoer. 

§ 3356. For the purpose of estimating dama^,SSe value 
%n instrument in writmg is presumed to be equal to thai 



Ml SPECIFIC AND PREVKNTIVE RELIEF. ^§ 3357-3386 

of the property to which it entitles its owner. Iln efRict July 
1, I874.| 

§ 3357. The damapres prescrioed by this chapter are ex 
elusive of exemplary damages and interest, except where 
those are expressly mentioned. 

I 8358. Notwithstanding^ the proWsions of this chapter, 
no persjn can recover a greater amount in damages for the 
breai'h of an obligation than he could have gained by the full 
performance thereof on both sides, except in the cases speci- 
fied in the articles on Exemplary I)amages and Penal Dam- 
ages, and in sections 3319, 3239, and 3340. 

§ 3369. Damages must, in all cases, be reasonable, and 
where an obligation of any kind appears to create a right to 
unconscionable and grossly oppressive damages, contrary to 
substantial justice, no more than reasonable damages can be 
recovered. 

§ 8360. When a breach of duty has caused no apprecia- 
ble detriment to the party aifected, he may yet recover nominal 
damages. 
67 Cal. 187. 



TITLE in. 

SPECIFIC AND PREVENTIVE RELIEF. 

Chapter I. General Principles, §§ 3366-3369. 
II. Specific Relief, §§ 3375-3414. 
IIL Preyemtivb Relief, §§ 3420-3423. 



CHAPTER L 

GENERAL PRINCIPLES. 



SlOTiON 8366. Specific relief, <5tc., when allowed. 
83H7. Specific relief, liow given. 
33)8. Preventive reliff, how given. 
8369. Not to enforce penalty, &C. ^^ . 

litized by LnOO^le 

8366. Specific or preventive relief may be given in fht 
~ specified in thi:( title, and in uo others. 



{§8867-8876 spbcifio and pretbntiyb beubf. 44S 

§ 3367. Specific relief is given: 

1. By tukiu^ possession of a thing, and delivering; it to a 
daimant ; 

2. By compelling a party himself to do that which ought 
to be done ; or, 

3. By declaring and determining the rights of parlies, oth 
arvise than by an award of damages. 

Code ClT. Proo. §§ 726-827, 1067-1110, 667. 

§ 3368. Preventive relief is given by prohibiting a par^ 
from doing that which ought not to be done. 
Jode Civ. Proc. §§ 626-638, 1072, 1102-1105, 1209-lt22. 

§ 3369. Neither specific nor preventive relief can be 
granted to enforce a penal law, except in a case of nuisance, 
nor to enforce a penalty or forfeiture in any case. 



CHAPTER II. 

SPBCIPIO RELIEF. 

Am^jis I. Possession or Real Property, § 3875. 

II. Possession op Personal Property, §§ 8879-3380. 
III. Spscipio Psrpormancb op Obligations, §§ 8384-8896. 
IV. Revision op Contracts, §§ 3399-3402. 
V. Rescission op Contracts, §§ 3408-8408. 
YI. Cancellation op Instruments, §§ 8412-8414. 



ARTICLE I. 

POSSESSION OF REAL PROPEHTT. 
Section 8875. Judgment for possession or title. 

§ 3375. A person entitled to specific real property, by 
reason either of a perfected title or of a claim to title whicn 
ought to be perfected, may recover the same in the manner 
prescribed by the Code of ( ivil Procedure, either by a judg- 
ment f jr its 'possession, to be executed by the sheriff, or by a 
Vidsmeit requiring the other party to perfect the title and t« 
ieliver possession of the pro/^erty * 

Oote Gir, Proo. §§ 738-748. P r^oalf> 

Digitized by V^OOQIC 



143 8PB0I710 AND FRETBVTIVB RBLIBT. §§ 8379-3386 

ARTICLE II. 

FOBSESSION OF PERSONAL PROPERTY. 

SSOTION 3379. Judgraent for deliyery 

8380. When holder may be compelled to deliyer. 

§ 8379. A person entitled to the immediate possese!^ 
of speiiHc personal property niav recover the same in the 
manuer provideil by the Code of Civil Procedure. 
Claim and Delivery Code Civ Proe. §§ 509-620. 

§ 3380. Any person havin<; the possession or control of a 
particular article of personal property, of which he is not tlie 
owner, may be compelled specifically to deliver it to the ptr- 
Bon entitled to its immediate possestiion. I In effect July \, 
1874.] 

ARTICLE III. 

SPECIFIC PERFORMANCE OF OBLIGATIONS. 

0lonoN 8384. In what cased compelled. 

8385. Remedy mutual. (Repealed.) 
8384. No remedy unlefts mutual. 
83S7. Distinction between real and pergonal property. 
8888. Contract signed by one party only may be enforced *r^ 
other. 

8389. Liquidation of damagefl not a bar to specific performano*. 

8390. What cannot be specifically enforced. 

8391. What parties cannot be compelled to perform. 

8892. What parties cannot have specific performance in tbaii 
favor 

8898. Specific performance not required when oppressive. (Re- 
pealed.) 

8394. Agreement to sell property by one who has no title. 

8395. Relief against parties claiming under person bound to per- 

form. 

§ 3384. Except as other\\'ise provided in this article, tht 
ipecitic performance of an obligation may be compelled. [la 
effect July 1, 1874.1 

56 Cal. 589. 

§ 3386 of said Code is repealed. Tin effect July 1, 1874.j 

§ 3386. Neither party to an obligation ?an be compelled 
ipecificallv to perform it, unless the other party thereto ha* 
Mrformed, or is compellable specifi(;aliy to perform, every* 



§§8387-8391 specific akd pheyentitb relief. 444 

fching to which the former is entitled under the same ohli^ 
tion, either completely or nearly so, together with ftill com- 
pensation for any want of entire performance. 

§ 8387. It is to be presumed that the breach of an agree- 
ment to transfer real property cannot be adequately relieved 
by pecuniary compensation, and that the breach of an agree- 
ment to transfer personal property can be thus relieved. 

§ 3388. A party who has signed a written contract maj 
06 compelled specifically to perform it, though the other party 
has not signed it, if the latter has performed, or offers to per- 
form it on his patt, and the case is otherwise proper for en- 
forcing specific performance. 

§ 3889. A contract otherwise proper to be specifically en 
forced may be thus enforced, though a penalty is imposed, ox 
the damages are liquidated for its breach, and the party in 
iefault is willing to pay the same. 

§ 8390. The following obligations cannot be specifically 
enforced : 

1. An obligation to render personal service ; 

2. An obligation to employ another in personal service ; 

3. An agreement to submit a controversy to arbitration; 

4. An agreement to perform an act which the party has not 
power lawfully to perform when required to do so ; 

5. An agreement to procure the act or consent of the wife 
of the contracting parry, or of any other third person ; or, 

6. An a«?reement, the terms of which arc not sufficiently cer- 
tain to make the precise act which is to be done clearly ascer- 
tainable. 

. 66 Cal. 012, 539. 

§ 3391. Specific p^'rformance cannot l)e enforced against 
• party to a contract m any of the following cases : 

1. If he has not received an adequate consideration for tht 
contract ; 

2. If it is not, as to him, just and reasonable ; 

3. If his assent was obtained by the misrepresentation, con- 
cealment, circumvention, or unfair practices of any party to 
whom performance would become due under the contract, oi 
oy any promise of such party which has not been substantially 
fulfilled ; or ; 

4. If his assent was given under the iufluence^timistake 



*45 SPECIFIO AKD PBBTBITTiyB RBLIBF. §§8392-3399 

misapprehension, or surprise, except that where the contract 
provides for compensation in case of mistake, a mistake within 
the scope of such provision may be compensated for, and the 
contract specifically enforced in other respects, if proper to be 
so enforced. 

§ 3392. Specific performance cannot be enforced in favor 
of a party who has not fully and fairly performed all the con- 
ditions precedent on his part to the obligation of the other 
party, except where his failure to perform is only partial, and 
either entirely immaterial or capable of being fully compen- 
sated, in which case specific performance may be compelled, 
upon full compensation being made for the defoult. 

68 Cal. 364, 442. 

§ 3393 of said Code is repealed. [In effect July 1, 1874.1 

§ 3394. An agreement for the sale of property cannot be 
specitically enforced in favor of a seller who cannot give to 
the buyer a title free from reasonable doubt. 

§ 3395. Whenever an obligation in respect to real prop- 
erty would be specifically enforced against a particular person, 
it may be in like manner enforced against any other person 
claiming under him bv a title created subsequently to the obli- 
gation, except a purchaser or incumbrancer in good faith and 
for value, and except, also, that any such person may exoner- 
ate himself by conveying all his estate to the person entitled 
to enforce the obligation. 

ARTICLE IV. 

REVISION OP CONTRACTS. 

SlcnoN 3399. When contract may be revlMd. 

3400. Presumption as to intent of parties. 

8401. Principles of reyision. 

8402. Enforcement of revised contract. 

§ 3399. When, through fraud or a mutual mistake of tho 
parties, or a mistake of one party, which the other at the time 
cnew or suspected, a written contract does not truly express 
fche intention of the parties, it may be revised on the applica- 
tion of a party aggrieved, so as to express that intention, M 
far as it can be done without prejudice to rights acquired bf 
vhird persons, in good faith and for value. 

67Cal. 399; 58Cal. 8. 



118400-3408 8PB0IFI0 and prbybhiivb bblibf. 446 

§ 8400. For the purpose of revising a contract, it miut 
be presumed that all tne parties thereto intended to make an 
equitable and conscientious agreement. 

§ 8401. In revising a written instrument, the court maj 
inquire what the instrument was intended to meaU) and what 
were intended to be its legal consequences, and is not confined 
to the inquiry what the language of the instrument was in- 
tended to be. 

§ 8402. A contract may be first revised and then specif- 
leally enforced. 

ARTICLE V. 

RESCISSION OF CONTRACTS. 

BionoN 8406. ^V^en rescission may be adjudged 

8407. Rescission for mistake. 

8408. Court may require party rescinding to do equity. 

§ 8406. The rescission of a written contract may be ad- 
judged, on the application of a party aggrieved : 

1. In any of the cases mentioned m section 1689 ; or, 

2. Where the contract is unlawful, for causes not apparent 
upon its face, and the parties were not equally in fault; or, 

3. When the public mterest will be prejudiced by permit- 
tmg it to stand. 

, § 8407. Hescission cannot 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. 

§ 8408. On adjudging the rescission of a contract, the 
eoart may require the party to whom such relief is granted te 
make any compensation to the other which justice may i^ 
inire. 

ARTICLE VI. 

OAKCBLLATION OF INSTRUMBKTS. 

8412 When cancellation may be ordered. 

8418. Instrument obviously void. ^^ 

M14. Cancellation in part. digitized by GoOglc 



147 8FECIFI0 AND PSBYBNTIYE RBLIBF. §§3412-8422 

§ 3412. A written instramenty in respect to which there 
b a reasonable apprehension that if left outstanding it mar 
eause serious injury to a person against whom it is yoid or 
voidable, may, upon his application, be so adjudged, and or- 
dered to be deliyered up or cancelled. 

§ 3413. An instrument, the invalidity of which is appar- 
ent upon its face, or upon the face of another instrument which 
b necessary to the use of th^ former in eWdence, is not to lie 
deemed capable of causing injury, within the provisions of tlie 
tast section. 

^ § 3414. Where an instrument is evidence of different 
rights or obligations, it may be cancelled in part, and allowed 
to stand for ue residue. 



CHAPTER III. 
PREVENTIVE RELIEF. 

< SsonON 8420. Preyentiye relief, how granted. 

8421. ProTisioiial injunctions. 

8422. Injunction, when allowed. 
8^8. Injunction, when not allowed. 

§ 8420. Preventive relief is granted by injunction, pro- 
visional or final. 

§ 3421. Provisional injunctions are regulated by the Code 
of Civa Procedure. [§§ 525-533.] 

§ 3422. Except where otherwise provided by this tide, a 
final injunction may be granted to prevent the breach of an 
obligation existing 'in favor of the applicant: 

1. Where pecuniary compensation would not afibrd ade- 
|uate relief ; 

2. Where it would be extremely difficult to ascertain the 
unonnt of compensation which would afford adequate re- 
i'ei; 

S. Where the restraint is necessary to prevent a multiplicity 
•f judicial proceedings ; or, 
A. WheiKe the obligution arises from a trust. yd OOgle 



I 8423 SPBGIFIO AND PSSTBNTIYB RBLIBT. 44S 

§ 8423. An injunction cannot be granted : 

1. To stay a judicial proceeding pending at the commence- 
ment of the action in wnich the injunction is demanded, un- 
less such restraint is necessary to prevent a multiplicity ol 
•uch 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 public 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 
'jawful manner, by the person in possession ; 

7. To prevent a legislative act by a munidpal oorponlioB. 
[InefiectJuly 1,1874.] 



,y Google 



PAET 11. 



SPECIAL RELATIONS OF DEBTOR AND 
CREDITOR. 

tiTLB I. Gbwbbal Principlbs, §§ 3429-3433. 

n. Fbaudulbnt Instbumbnts and TbAN8FXB% 
§§ 3439^442. 
IIL ASSIGNMBNTS POB THB BbNBPIT OF CbBDITOB% 
§§ 3449-3473. 



TITLE L 

GENERAL PRINCIPLES. 

SionoN 8429. Who b a debtor. 
8480. Who iB a creditor. 
8481 Contracts of debtor are Talid. 
8432. Payments in preference. 
8483. Relatire rights of different crediton. 

§ 8429* A DBBTOR, within tbe meaning of this title, is one 
who, by reason of an existing obligation, is or may become 
Uable to pay money to another, whether snch liability is cer- 
tain or contingent. 

§ 8430. A creditor, within the meaning of this title, is 
«ne in whose faror an obligation exists, by reason of which he 
ii, or may become, entitled to •he payment of money. 

§ 8481. In the absence of fraud, every contract of a debtof 
li Talid against all his creditors, existing or snbseqnent, wht 
hftTe not acquired a lien on the property affected by such ocm 
tact. 



If 3432-3440 fkaudulent instbumshts, bto. 450 

{ 3432. A debtor may pay one creditor in preference to 
another, or ma^ give to one creditor secnritj for the payment 
of his demand m preference to another. 

§ 3433. Where a creditor is entitled to resort to each of 
teveral funds for the satisfaction of his claim, and another 
person has an interest in, or is entitled as a creditor to resort 
ko some, but not all of them, the latter may require the former 
to seek satisfaction from those funds to which the latter has 
tto such claim, so far as it can be done without impairing thtt 
right of the former to complete satisfaction, and without do 
ii^ injustice to third persons. 



TITLE IL 



u 



FRAUDULENT INSTRUMENTS AND 
TRANSFERS. 

BionoH 84S9. Tmisfen, &e., with intent to defnnd orediton. 
8i40. Certain tnnsfen presumed fraudulent. 

8441. Creditor's right must be Judicially ascertained. 

8442. Queation of fraud, how determined. 

§ 3439. Every transfer of property or charge thereon 
made, every obligation incurred, ana every judiciiQ proceed- 
ing 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 
tor the benefit of others than the debtor. 

Code ClT. Proc. § 479 ; Penal Code, $$ 164, 531. 

^ § 3440. Every transfer of personal property, other than 

*^ a thing in action, or a ship or oarji^o at sea, or in a foreign 

iJr^ ])ort, and every lien thereon, other than a mortgage, when 

^ allowed b^v law, and a contract of bottomry or reimndentia, 

'Is conclusively presumed, if made by a person having at the 

*1 ;ime the possession or control of the property, and not ao« 

v^/^mpanied by an immediate delivery, and followed by an 

' '*^ «ctoa^ and cowtinufd change of possession of the thingp trans- 

Ined, to be fraudulent, and therefore void, against thioee wht 

am his creditors while he remains in possession, and the sve 



H 



151 ASSIGNMBNTS. §§ 8441-3442 

oeiBoni in interest of such creditors, and against any personi 
on whom his estate devolves in trust for the benefit of others 
than himself, and against purchasers or incumbrancers in 
good faith subsequent to the transfer. 

63 Cal. 402, 626. 

§ 3441. A creditor can avoid the act or obligation of his 
debtor for fraud only where the fraud o.bstructs the enforce- 
ment, by legal proce&s, of his right to take the property affected 
by the transfer or obligation. 

§ 3442. In all cases arising under section 1227, or under 
the provisions of this title, except as otherwise provided in 
^ section 3440, the question of fraudulent intent is one of fact, 
i^and not of law ; nor can any transfer or charge be adjudged 
r^ fraudulent solely on the ground that it was not made fbr a 
^ raluable consideration. 
64 Cal. 629. 



TITLE III. 

A.SSIGNMENTS FOR THE BENEFIT OP 
CREDITORS. 

bonoH 8i49. When debtor may execute aasignment. 
8160. Insolvency, what. 
8461. Certain transfers not affected. 
8162. What debts may be secured. 

8463. What preferences may be given. (Repealed.) 

8464. Preference must be absolute. (Repealed.) 

8466. Certain rights not affected by preferences in ass]gnm«al. 
(Repealed.) 

8466. Joint and separate debts. (Repealed.) 

8467. Assignment, when void. 

8468. The instrument of assignment. 

8469. Compliance with proYisions of last seetion neccfmy U 

validity of assignment 

8460. Assignee takes, subject to rights of third partict 

8461. Inrentory required. 

8462. Verification of inventory. 

8468. Recording assignment and filing inventoxy 
d4$4. Same. 

806. Effect of omitting to record. 
8106. Assignment of real property. 
'"fl. Bond of assignees. 
^ . Conditions of disposal and conT«TCkNi. 

Accountings. ,^,g.,.^^^ ^^ GoOglc 






M90. Pxoperty exempt. 



f 3449 ASSIGNMENTS.' 452 

SEcnov 8471. CompenFation. 
3iiQ 3472. Assignees protected for acts done in good faith. 

,.^ cc 8478. Assent of creditor necessaiy to modification of assignment. 

^^ m 

§ 8449. 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 ; sub- 
ject, however, to the provisions of this Code relative to trusts 
and fraudulent transfers, and to the restrictions imposed by 
law upon assignments by special partnerships, by corporations, 
or by other specific classes or persons. Every such assign- 
ment shall contain a list of the names of the creditors of the 
assignor, and their places of residence and amounts of their 
respective demands, and shall, subject to the other provisions 
of this section, be made to the sheriff of the county, or city 
and county, wherein the asi^ignor resides, if the assignor re- 
sides within this State, or in case the assignor resides out of 
this State, then to the sheriff of the county 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 prop- 
erty of the assignor in this State. The sheriff shall forthwith 
, \k take possession of all property so assigned to him, and keep 
1 \ the same till delivered by him as hereinafter provided. When 
ij *^ the assignment has been made as herein provided, the sheriff 
v*^ s.^<«hall immediately, 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. The notice so to be mailed 
shall also contain a statement of the amount of the demand 
of the creditor as set forth in the assignment, and if any cred- 
itor shall not find such amount to be correctly so stated, he 
may file with said sheriff, at or before such meeting, a state- 
ment under oath of his demand, and such statement shall, for 
the purpose of voting as hereinafter provided, be accepted by 
said sheriff 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. At such meeting the 
sheriff shall preside, and a majority in amount of demands 
•^resent or represented by proxy shall control all questions 



453 ASSIGNMENTS. §§ 3450-3452 

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 oflficer au- 
thorized to take acknowledgments, and filed with the sheriff. 
At such meeting or any adjournment thereof, the creditors 
may elect one or more assignees from their own number in 
the place and stead of the sheriff, and the person or persons 
so elected shall afterwards be the assignee or assignees under 
the provisions of this title, and the sheriff, by transfer in writ- 
ing 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 there- 
of. All recitals in such assignment by said sheriff of notices 
of such meeting and the holding thereof, and of the due elec- 
tion of such assignee or assignees, shall be prima facie proof 
of the facts recited. The sheriff shall, before the delivery of 
such assignment, be paid the expenses incurred by him, and 
fees in such amount as would by law be collectible if the 
property assigned had been levied upon and safely kept under 
attachment. Thereupon, and after the record of such last- 
named assignment, as in this title provided, such elected as- 
signee 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 provided. [In effect March 7, 
1889.] 

§ 3450. 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. 

§ 3451. The provisions of this title do not prevent a per- 
son 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 per- 
son cannot make a general assignment of property situated in 
this State for the satisfaction of all his creditors, except as in 
this title provided ; nor do the provisions of this title affect 
the power of a person, although insolvent, and whether resid- 
ing within or without this State, to transfer property in this 
State, in good faith, to a particular creditor, for the purpose 
of paying or securing the whole or a part of a debt owing to 
such creditor, whether in his own right or otherwise. [In ef- 
fect March 7, 1889.] 

§ 3452. An assi^ment for the benefit of creditors may 
provide for any subsisting liability of the assignor which he 
might lawfully pay, whether absolute or contingent. - 



§§ 3463-3460 assignments. 454 

§ 3453 of said Code is repealed. [In effect July 1, 1874.] 

§ 3454 of said Code is repealed. [In effect July 1, 1874.] 

§ 3455 of said Code is repealed. [In effect July 1, 1874.] 

§ 3456 of said Code is repealed. [In effect July 1, 1874.] 

§ 3457. An assigmment for the benefit of creditors is void 
against any creditor of the assignor not assenting thereto, in 
the follovvino; 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 compromise 
his demand ; 

3. If it provide for the payment of any claim known to the 
assignor to be false or fraudulent, or for the payment of more 
upon any claim than is known to be justly due from the as- 
signor ; 

4. If it reserve any interest in the assigned property, or in 
any part thereof, to the assignor, or for his benefit, before all 
his existing debts are paid ; 

5. If it confer upon the assignee any pow^er 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. [In effect July 1, 1874. J 

§ 3458. An assignment for the benefit of creditors must 
be in writing, subscribed by the assignor, or by his agent 
thereto authorized in writing, and the transfer by the sheriff 
must also be in writing, subscribed by the sheriff in his official 
capacity. Both such assignment and such transfer must be 
acknowledged, or proved and certified, in the mode prescribed 
by the chapter on recording transfers of real property, and be 
recorded as required by sections thirty-four hundred and sixty- 
three and thirty -four hundred and sixty-four; but recortUng 
in one county constitutes a compliance with the following sec- 
tion. [In effect March 7, 1889. J 

§ 3459. Unless the provisions of the last section are com- 
plied with, an assignment for the benefit of creditors is void 
against every creditor of the assignor not assenting thereto. 

§ 3460. An assignee for the benefit of creditors is not to 



455 ASSIGNMENTS. §§ 3461-3462 

be regrarded as a purchaser for value, and has no greater rights 
than his assignor had, in respect to things in action trans- 
ierred by the assignment. 

§ 3461. 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 3463, a full and true in- 
ventory, showing : 

1. AH 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 ^ye 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 tiTie consideration of the liability in each case, and 
the place where it arose ; 

5. Every existing judgment, mortgage, or orher security for 
the payment of any debt or liability of the assignor; 

6. All property of the assignor at the date of the assign- 
ment, which is exempt by law from execution ; and. 

7. All of the assignor's property at the date of the assijjn- 
ment, both real and personal, of every kind, not so exempt, 
and the incumbrances existing thereon, and all vouchers and 
securities relating thereto, and the value of such property ac- 
cording to the best knowledge of the assignor. 

§ 3462. An affitlavit must be made by every assignor exe- 
cuting an assignment for the benefit of creditors, to be an- 
nexed to and filed with the inventory mentioned in the last 
section, to the etTect 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 afllidavit within said twenty days, the as- 
signment shall not, for that reason, be affected in any way, 
but in that event the assignee or assiirnees elected by the 
creditors shall within twenty days thereafter make and file, in 
the office of the County Recorder where the assignment is first 
recorded, a verified inventory of all assets received by them ; 
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 Superior Court of the county, or city and county, where 
the assignment is first recorded, cause the assignor, by order 
or citation, to appear before said court, or a commissioner or 
referee to be appointed by it, at a time and place within the 
county, or city and county, to be designated in the order or 



§§ 8463-8467 assignments. 456 

citation, to be examined touching the matters mentioned in 
section three thousand four hundred and sixty-one, and anj 
other matters relative to the assignment, and to have with him 
all books of account, vouchers, and papers relating to the as- 
signed property ; and such court may by its order require the 
surrender to such assignee or assignees of such books, vouch- 
ers, and papers, to be by them retained until their trust is 
fully completed and performed. [In effect March 7, 1889.] 

§ 3463. An assignment for the benefit of creditors must 
be recorded, and the inventory i*equired by section 3461 filed 
with the county recorder of the county4n which the assignor 
resided at the date of the assignment ; or, if 'he did not then 
reside in this State, with the recorder of the county in which 
his principal place of business was then situated ; or, if he had 
•not then a 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. 

§ 3464. If an assignment for the benefit of creditors is 
executed by more than one assignor, it may be recorded, and 
a copy of the inventory, required by section 3461, may be filed 
with the recorder of the county in which any of the assignors 
resided at its date, or in which any of them, not then residing 
in this State, had then a place of business. 

§ 3465* An assignment for the benefit of creditors is void 
against creditors of the assignor and against purchasers, and 
encumbrancers in good faith and for value, unless it is re- 
corded as provided in this title, and unless either the inven- 
tory required by section three thousand four hundred and 
sixty-one, or the inventory required of the assignee or as- 
signees by section three thousand four hundred and sixty-two, 
is filed in the manner provided in this title and within the 
time designated. [In enect March 7, 1889. J 

§ 3466. Where an assignment for the benefit of creditors 
embraces real property, it is subject to the provisions of Arti- 
cle IV. of the Chapter on Recording Transfers, as well as to 
those of this title. [§§1158-1217.] 

§ 3467. No bond shall be given by the sheriff, but he 
shall be liable on his official bond for the care and custody of 
the property while in his possession. Within forty days wter 
date of the transfer by the sheriff, the assignee must enter 



456a A88IGNMKNTS. §3468 

into a bond to the people of this State in snch anionnt as maj 
be fixed by a jud^^e of the Superior Court of the county, or 
city and county, in which an inventory in accordance witli the 
provisions of this title is filed, with sufficient sureties to be ap- 
proved by such judge, and conditioned for the faithful dis- 
charge of the trust and the due accounting for all moneys re- 
ceived by the Mssignee, which bond must be filed in the same 
office with the inventory ; and any as>ignee failing to comply 
witii 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. [In 
effect March 7, 1889.] 

§ 3468. Until a verified inventory has l>een made and 
filed either by the assignor or HS-ignee, as required by the 
provisions of this title, and the assignee has given the bond 
required by the last section, such assignee has no authority to 
dispose of the property of the estate or any part of it (except 
in the case of perishable property which in his discretion he 
may dispose of at any time and receive the proceeds of sale 
thereof), nor has he power to convert the property or the pro- 
ceeds of any sale of perishable property to tlie purposes of 
the trust. Within ten days after the filing of his bond the as- 
signee must commence the publication (and such publication 
shall continue at least once a week for four weeks) in some 
newspaper published in the county, or city and county, where 
the inventory is filed, of a notice to creditors of the assignor, 
stating the fact and date of the assignment, and requiring all 

X 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 busi- 
er I ness, to be specified in the notice ; and he shall also, within 
Lm^ ten days after the first publication of said notice, mail a copy 
^^ of such notice to each crt ditor whose name is given in the in- 
^«Jrnment of assignment a' the address therein given. After 
such notice is given, a copy thereof, with affidavit of due pub- 
lication and mailing, must be filed with the County Recorder 
with whom the inventory has been filed, which affidavit slmll 
be prima facie evidence of the facts stated therein. 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 as- 
signee may, in his discretion, declare and pay dividends to the 
creditors whose claims have been presented and allowed. No 
dividend already declared shall be disturbed by reason of 



§ 3469-3473 assignments. 4566 

claims being subsequently presented and alloweH ; bnt the 
creditor preseutinji; such claim shall be entitled to a dividend 
equal to the per cent, already declared and paid before any 
furthe- dividend is made; provided, nowever, that there be as- 
sets sufficient for that purpose ; and provided, that the failure 
to present such claim shall not have resulted from his own 
neglect, and he shall attach to such claim a statement under 
oath showing fully why the same was not before presented. 
[In effect March 7, 1887.] 

§ 3469. After six months from the date of an assignment 
for the benefit of creditors, the asM^^uee may be required, on 
the petition of any creditor, to account before^ the Superior 
Court of the county where the accompanying inventory was 
filed, in the manner prescril>ed by the insolvent laws of tiiis 
State. [In effect February 15, 1883.] 

Pol. Code, § 19, 8ubd. 24, continues in force. Act of May 4, 1862. 

§ 3470. 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 in- 
strument specially mentions them, and declares au intention 
that they should pass thereby. 

§ 34 7 1 . The elected assignee or assignees for the benefit 
of creditors shall be entitled to the same commissions on as- 
signments heretofore and hereafter made as are allowed by 
law to the assignees in insolvency, and the assignment cannot 
grant more. Such assignee or assignees shall also be entitled 
to all necessary expenses in the management of their trust. 
[In effect March 7, 1889. J 

§ 3472. An a<»signee for the benefit of creditors is not to 
be held liable for his acts, done in good faith, in the execution 
of the trust, merely for the reason that the assignment is af- 
terward adjudged void. 

§ 3473. An assignment for the benefit of creditors which 
has been executed and recorded so as to transfer the property 
to the sheriff, or a transfer by the sheriff to the elected as- 
signee or assignees which has been executed and recorded, 
cannot afterwards be modified or canceled by the parties with- 
out the consent of the assignor and of every creditor affected 
thereby. [In effect March 7, 1889.] ,^,„,,,Google 



PAET III. 



NUISANCE. 

tiTLB 1. Genbral Principles, §§ 3479-3484 
II. Public Nuisances, §§ 3490-3 U5. 
UL Pbitatb Nuisances, §§ 3501-3508. 



TITLE I. 
GENERAL PRINCIPLES. 

BionoH 3479. Nuisance, what. 

8480. Public nuiMuice. 

8481. Private nuiwnce. 

8482. AVhat Lb not deemed a nuisance. 
8488. Successiye owners. 

84S4. Abatement does not preclude action. 

§ 8479. Anything which is injurions to health, or is indft* 
cent or offensive to the senses, or an obstruction to the free 
use of property, so as to interfere with the comfortable enjoy- 
ment or life or property, or unlawfully obstructs the fi'ee pas- 
sage or use, in the cu&tomary manner, of any navigable lake, 
or river, bay, stream, canal, or basin, or any public park, 
iqaare, street, or highway, is a nuisance. [In effect July 1, 
1874.] 

Code JiT. Proc. § 781 ; Penal Code, $§ 870-871. 



§ 3480. A public nuisance is one which affects at the c 
time an entire community or neighborhood, or any consider 
able Dumber of persons, altLough the extent of the annoyance 
or damage inflicted upon individuals may be unequal, [la 
•ff^i^t July 1, 1874.J 



|§ 3481-8493 public nuisangbs. 4M 

§ 3481. Ererj nuisance not indaded in the definition ol 
the last section is private. 

§ 8482. Nothing which is done or maintained nnder th« 
•zpress authoritj oi a statute can he deemed a nuisance. 

§ 3483. Eyery successive owner of property who neglect! 
to abate a continuing nuisance upon, or in the use of, such 
property, created by a former owner, is liable therefor in th« 
■ame manner as the one who first created it. 

Code Civ. Proo. $ 781. 

§ 8484. The abatement of a nuisance does not prejudiet 
die right of any person to recovw damages for its pairt ezitfe- 
•noe. 

VuiniMMr Peoftl Code, §§ 870-874 



TITLE IL 
PUBLIC NUISANCES. 

BiOTioir 8490. LapM of time does not legaUia. 

8491. Abatement. 

8492. When notice ia required. 

8493. Remedies for public nuisance. 

8494. Action. 

8495. How abated. 

§ 8490. No lapse of time can legalize a pablic nnisanei^ 
Unounting to an aciual obstruction of pablic right. 

§ 349 1 . The remedies against a public nnisanoe are : 

1. Indictment or information ; 

2. A civil action ; or, 

3. Abatement. [In effect March 2, 1880.) 

§ 3492. The remedy by indictment or information is reg< 

lilated by the Penal Code. 
Pecal Code, §§ 870-874. 

§ 3493. A private person may maintain an action for a 
public nuisance, if it is specially injurious to himself, but nd 
ptherwise. ^ ^ ^ Cnoolp 

64 Cal. 533. ^^ '""^ by V^OOglL 



Id9 PRIVATE NUISANCES. §§ 3494-3503 

§ 3494. A public nuii^ance may be abated by any public 
body or officer authorized thereto by law. 

§ 3495. Any person may abate a public nuisance which 
Is specially injurious to him by removing, or, if necessary, 
destroying the thing which constitntes the same, without 
rommittlug a breach of the peace, or doing uuueceiwary 
Injury. 



TITLE IIL 

PRIVATE NUISANCES. 

SicnoN 3501. Remedies for private nuisanee 

8502. Abatemmit, when allo\v«d. 

8503. When notice i« niquired. 

§ 8501. The remedies against a private nuisance are: 

1. A civil action ; or, 

2. Abatement. 

§ 8502. A person injured by a private nnisance may abate 
It by removing, or, if necessary', destroyin^jj the thing whicli 
constitutes the nuisance, without committing a breach of the 
peace, or doing unnecessary injury. 

§ 8503« Where a private nuisance results from a mere 
omission of rhe wrongdoer, and cannot be abated without en- 
tering upon his land, reasonable notice mnat be given to hiiii 
before entering to abate it. 



,y Google 



PAET rv. 



MAXIMS OF JURISPRUDENCE. 

I 8609. Thb maxims of mriBpradenoe hereinafter set 
fcrth are intended not to qaalify any of the foraging pro* 
finons of this Code, but to aid in their just application. 

§ 3610. When the reason of a mle ceases, so should ths 
rule itself. 

§ 361 !• Where the reason is the same, the rule should be 
the same. 

§ 3612. One must not change his purpose to the injury ol 
another. 

§ 3618. Any one may waive the advantage of a law in- 
tended solely for his benefit. But a law established for a pub* 
Uc reason cannot be contravened by a private agreement. 

58 Cal. 08. 

§ 3614. One must so use his own rights as not to infringf 
upon the rights of another. 

§ 3616. He who consents to an act is not wronged by it. 

§ 8616. Acquiescence in error takes away the right o 
Dbjecting to it. 

§ 3617. No one can take advantage of his own wrong. 

§ 3618. He who has fraudulently dispossessed himself of a 
thing may be treated as if he still had possession. 

§ 8619. He who can and does not forbid that which if 
ione on his behalf is deemed to have bidden it. 



161 MAXIMS OF JDRISPBUIMSVCB. §§ 3620'3636 

f 8520. No one should suffer bj the act of another. 

§ 3521. He who takes the benefit must bear the burden. 

§ 3522. One who grants a thing is presumed ^o grant also 
Irhatever is essential to its use. 

§ 3523. For every wrong there is a remedy. 

§ 3524. Between those who are ec^ually in the right, or 
squally in the wrong, the law does not interpose. 

§ 3525. Between rights otherwise equal, the earliest is 
preferred. 

§ 3526. No man is responsible for that which no man can 
control. 

§ 3527. The law helps the vigilant, before those who 
sleep on their rights. 

§ 3528. The law respects form less than substance. 

68 Cal. 98. 

§ 3529. That which ought to have been done is to be ro- 

rded hs done, in favor of hii 

•m whom, perfoi-mance is due. 

§ 3530. That which does not appear to exist is to be fe- 
garded as if it did not exist. 

§ 3531. The law never requires impossibilities. 
57 Cal. 636. 

§ 3532. The law neithef joes nor requires idle acts. 
68 Cal. 98. 

§ 3533. The law disregards trifles. 

§ 3534. Particular expressions qualify those which an 
general. 

§ 3535. Contemporaneon« exposition is in general Um 
best. 

f 3536. The greater contains the less. 

30 ugitizedbydOOgle 



yarded hs done, in favor of him to whom, and against him 
ftpoi 



{§ 8637-8643 maxims of jubispbudbnoc. 46S 

§ 36 37* Superfluitj does not vitiate. 

§ 3638. That is certain which can be made certain. 

§ 3639. Time does not confirm a void act. 

§ 3540. The incident follows the principal, and not tbs 
principal the incident. 

§ 3641. An interpretation which gives effect is preferred 
to one which makes void. 

§ 3642. Interpretation mnst be reasonable. 

§ 3643. Where one of two innocent persons mnst suffer 
by the act of a third, he, by whose negligence it happened 
must be the sufferer. 



Approved, March 21, 1872. 

NEWTON BOOTH, 

. Governor. 

The amendments which took effeet July 1, 1874, and are no marked wk 
the end of each section, were passed by Act of March 30, 1874, the elos 
Ine paragraph of which is as follows : — 

" All proYisions of law inconsistent with the proTisions of this act are 
hereby repealed, but no rights acquired or proceedings taken under the 
provisions repealed, shall be impaired or in any manner affected by thii 
repeal ; and whenever a limitation or period of time is prescribed by such 
repealed provisions for acquiring a right or barring a remedy, or for any 
other purpose, has begun to run before this act takes effect, and the sam« 
or any other limitation is prescribed by this act, the time of limitation 
which shall have run when this act takes effect shall be deemed part ol 
the time prescribed by this act. 

" With relation to the laws passed at the present session of the Legis- 
lature, this act must be construtni as though it had been passed at th« 
first day of the present session, if the provisions of any law passed at the 
present session of the Legislature contravenes or is inconsistent with th« 
provisions of this act, the provisions of such law must prevail. 

** This act shall take effect on the first day of July, one thooaand eigtal 
kundred and seventy-four. 

" ApproTad, March 80. 1874." 



,y Google 



APPENDIX. 



Digitized by VjOOQIC 



,y Google 



APPENDIX. 



4» Act tupplementary to a/tt Act entitled ^' An Act toprorndtfor the 
Incorporation of Colleges,^* approved April ttoentieth^ e*ghteen 
hundred andji/ty, [State 1871-2, pp. 10, 11.] 

[Enacting clause.] 

Bkction 1. Certain powen granted to grand lodges of benerolent and 
fraternal organizations. 
2. Requirements in certain cases. 
8. Extension of powers. 

Section 1. Whenever any benevolent, religious,* or fraternal 
organization, or society, having a grand lodge or other legislative 
head, duly organized and existing in this State, shall found and 
establish a college in this State, and shall incorporate or desire to 
incorporate the same under the act to which this act is supple- 
mentary, such organization or society shall have and may retain 
the right, through its grand lodge or other legislative head, not 
only to select and name the persons who, subject to the approval 
of the , State Board of Education, shall form such corporation 
and be the first trustees thereof, but also to prescribe the terms 
of office of such trustees and provide for their classification, so 
that a portion thereof shall go out of office and their successors 
be elected at each annual session of such grand lodge or society ; 
provided^ however, that the terms of not more than one third of 
■nch trustees shall expire at the same time ; and also to reserve 
to itself the power of electintr the successors of such trustees as 
their terms expire. It ma}' also provide that no person shall be 
A trustee of such corporation unless he be a member of such 
order, organization, or society, in good standing ; and also re- 

f[uire said board of trustees to report annually to the grand 
odge or society founding the same the condition of the affairs 
of such corporation, and the amount and manner of ite receipte 
and expenditures. 

Sec. 2. Any corporation already formed under the act to 
!rhich this act is supplementary of a college founded or estate 

t The word "religious' was inserted by amendmettTiOif Vebmarr 7 

IS74. 8I»*S.1878-4,P. 85. Digitized byT^OV 



466 APPENDIX. 

lished by the grand lodge i>r society of any benevolent, religioiiB,^ 
or fraternal organization in this State, may, by resoiation of ita 
board of trustees, a certified copy of which shall be filed, with iti 
original certificate of incorporation, in the oflice of the secre- 
tory of state, surrender to the grand lodge or society which founded 
it the right to exercise all control over it provided by the fini 
lection of this act, and thereafter such grand lodge or aocietj 
shall have the right to and may exercise the same control ovtt 
such corporation as if the same had been specially formed undet 
this act and the act to which this is supplementary. 

Sec. 3. The corporation of any college established or founded 
by any such benevolent^ religious, or fraternal organization or 
society, and incorporated as provided in this act and the act to 
which this is supplementary, raaj', in addition to holding the prop« 
erty necessary for its college purposes, also establish, own, and 
control, under the same management, a home for the mainten- 
ance and education of orphans, and an asylum for the care of 
the aged and indigent of the order or society founding such in- 
Btitotion. 

Sec. 4. This act shall take effect and be in force from and 
after its passage. 

Approved January 8, 1872. 



An Act to amend an Act eatUled, ^* An Act topromde for the For* 
fantion of Ctfrporations for the Accumulation and JnvegtmttU of 
Funds and Savings^^* approved AprU eleventh, eighteen hundred 
and sixty-two. [Stats. 1871-72, pp. 132-^.] 

[Enacting clause.] 

SiOTiON 1. Acts not lawful. 

2. Increase of capital stock. 

Section 1. Section eighteen of an act entitled " An act to 
provide for the formation of corporations for the accumulation 
and investment of funds and savings," approved April eleventh, 
eighteen hundred and sixty-two, is hereby amended so as to read 
as follows : 

Sec. 18. It shall not be lawful for the directors to divide, 
unthdraw, or in any way pay to the stockholders, or any of them, 
any part of the capital stock, nor to reduce the amount of thf 
lame, except as hereinafter orovided 

* The word "religious'" was inserted by ao3e|^(|^ei^^^Febnud7 7 



APPENDIX. 467 

Ssc. 2. Section nineteen of the act mentioned in the fini 
section of this act is hereby amended so as to read as follows : 

Sbc. 19. Whenever it is desired to increase the amount ol 
capital stock, and in cases where the capital stock is partly bat 
not all taken and paid in it is desired to reduce the same to not 
less than the amount paid in, a meeting of stockholders may be 
called, bv a Lotice signed by at least a n^ajority of the directors, 
and published at least sixty days in ever}*^ issue of some news- 
paper published in the county where the principal place of busi- 
ness of the company is located, which notice shall specify the 
object of the meeting, the time and place where it is to be held, 
and the amount to which it is proposed to increase or reduce the 
capital stock, as the case may be ; and a vote of two thirds of aL 
the shares of stock represented at the meeting shall be necessarr 
to an increase or decrease of the amount of capital stock ; provided^ 
thiit nothing in this act contained shall be held to authorize the 
release of any subscription tu the capital stock, or the reduction of 
the amount o'f capital stock below the full amount that shall have 
been subscribed thereto. 

Skc. 3. Section twenty of the act mentioned in the first sec- 
tion of this act is hereby amended so as to read as follows : 

Sec. 20. If at any meeting so called a sufficient number 
of votes has been given in favor of increasing or reducing the 
amount of capital stock, a certificate of the proceedings, showing 
a compliance with these provisions, the amount of the capital 
actually paid in, and the amount to which the capital stock is to be 
increased or reduced, shall be made out, signed, and verified by 
the affidavit of the chairman and secretanr of the meeting, cer- 
tified by a majority of the directors, and nied as required by the 
second section of this act. When so filed the capital stock of the 
corporation shall be increased or reduced to the amount specified 
in the certificate. 

Sec. 4. This act shall take effect from and after its passage. 

Approved February 21, 1872. 



4n Act for the Protection of Miners, [Stats. 1871-72, p. 413.^ 

[Enacting clause.] 

Section 1. Protection of miners. 
2. Escape shaft. 
8. Liabilities. Damages. 

SBcnoir 1. It shall not be lawful for any corporation, associ 
•ion owner, or owners of any quartz mining claims within tbi 



IM APFBITDIX. 

State of California, where such corporation, association, owner, or 
oMmeni employ twelve men daily, to sink down into such mine or 
mines any perpendicular shaft or incline beyond a depth from the 
•nrface of three hundred feet without providing a second mode of 
egress from such mine, by shaft or tunnel, to connect with the 
main shaft at a depth of not less than one hundred feet firom the 
snrface. 

Seo. 2. It shall be th^ duty of each corporation, association, 
owner, or owners of any quartz mine or mines in this State, 
where it becomes necessary to work such mines beyond the 
depth of three hundred feet^ and where the number of men em- 
ployed therein daily shall be twelve or more, to proceed to sink 
Hnother shaft or construct a tunnel so as to connect with the 
main working shaft of such mine as a mode of escape from un- 
derground accident or otherwise. And all corporations, associ- 
ations, owner, or owners of mines as aforesaid, working at a 
greater depth than three hundred feet, not having any other 
mode of egress than from the main shaft, shall proceed as herein 
provided. 

Sec. 3. When any corporation, association, owner, or owners 
of any quartz mine in this State shall fail to provide for the proper 
egress as herein contemplated, and where any accident shall occur, 
or any miner working therein shall be hurt or injured and from 
BQch injury might have escaped if the second mode of egress had 
existed, such corporation, association, owner, or owners of the 
mine where the injuries shall have occurred shall be liable to the 
person injured in all damages that may accrue by reason thereof ; 
and an action at law in a court of competent jurisdiction may be 
maintained against the owner or owners of such mine, whicli own- 
ers shall be jointly or severally liable for such damages. And 
where death shall ensue from injuries received from any negli- 
gence on the part of the owners thereof by reason of their failure 
to comply with any of the provisions of tliis act, the heirs or rel- 
atives surviving the deceased may commence an action for the re- 
covery of such damages sla provided by an act entitled an act 
requiring compensation for causing death by wrongful act, neglect, 
or default, approved April twenty-sixth, eighteen hundred and 
Bixty-two. 

Sec. 4. This act shall take effect and be in force six montht 
from and after its passage. 

Approved March 16, 187&. 



,y Google 



APPBNDIX, 469 

ill Act mtpplemental to an Act entitUd " An Act concerning Corpo- 
rations '* pasted twenty-second April, one thousand eight hundred 
andf/ty, [Stats. 1871-73, pp. 443-444.] 

[Enacting clause.] 

Bmioir 1. Petition of shareholders. Puhlication of notice. 

2. Organizing. Meeting. Calling roll. Declaring result. 

8. Vacancies. Tellers. 

4. Certificate of election. Filing of certificate. 

6 Tees of county clerk 

SEcmoN 1. On petition of the majority of the shareholders of any 
corporation, formed for the purpose of mining, to the county judge 
of the county where fsaid corporation has its principal place oi 
business, verified by the signers, to the effect that they are serer- 
ally the holders on the books of the company of the number of 
shares set opposite their signatures to the foregoing petition, the 
county judge shall issue his notice to the shareholders of said com- 
pany that a meeting of the shareholders will be held, stating the 
time, not less than five nor more than ten da^cs after the first pub- 
lication of such notice, and the place of meeting within said 
countv, and the object to be to take into consideration the removal 
of officers of said company ; which notice, signed by the said 
county judge, shall be published daily in one or more daily news- 
papers published in said county for at least five days before the 
time for the meeting. 

Sec. 2. At the time and place appointed by said notice those 
claiming to be shareholders who shall assemble shall proceed to 
organize by the appointment of a chairman and secretary, and 
thereupon those claiming to be shareholders shall present proof 
thereof, and only those snowing a right to vote shall take part in 
the further proceedings. If it appears that at the time appointed, 
or within one hour tnereafter, shareholders of less than one half 
*he shares are present, no further proceedings shall be had, but 
vhe meeting shall be ipso facto dissolved; provided^ however^ 
hat by a vote of the holders of the majority i of the capita* 
^tock of the corporations aforesaid, the board of trustees may be 
*equired to furnish to the meeting a written detailed statement 
and account of the affairs, business, and property of the corpora- 
tion ; but if the holders of a majority ^ of the shares are presen/ 
the> shall proceed to vote, the secretary calling the roll and the 
Aiembers voting yea or no, as the case may be. The secretary 
shall enter the same upon his list, aDd when he has added up the 
list and stated the result, he shall sign the same and hand it 

1 Amended from two thirds to a majority by Act of April 1, 187& 

«Mf 1875-76, p. 78a ,^,gi,ized by Google 



170 AfTMKDlX, 

to the chainnan, who shall also sign the same and dedaM tht 

result. 

Skc. 8. If the result of the vote is that the holders of a nui^ 
joritj of all the shares of the compaay are in favor of the removm 
of one or more of the officers of the company, the meeting shah 
then proceed to ballot for officers to supply the vacancies thus cre« 
ated. Tellers shall be appointed by the chairman, who shall col- 
lect the ballots and deliver them to the secretary, who shall count 
the same in open session, and havinp: stated the result of the count 
in writing, shall sign the same and hand it to the chairman, who 
shall announce the result to the meeting. 

Sec. 4. A report of the proceedings of the meeting shall be 
made in writing, signed hy the chainnan and secretary and veri- 
fied b^ them, and delivered to the county judge, who shall there- 
upon issue to each person chusen a certificate of his election, and 
shall also issue an order requiring that ail books, papers, and all 
property and effects be immediately delivered to the officers elect, 
and the petition and report, indorsed with the date and fact of 
(he insuance of such certiticate and order, shall be delivered to the 
eounty clerk to be by him tiled in his office, and thereafter the per- 
sons thus elected officers shall be the duly elected officers and hold 
office until the next regular annual meeting, unless removed under 
the provisions hereof. 

Sec. 5. For all services in the^e proceedings the county clerk 
%W\ receive ten dollars on the issuance of the notice and ten dol- 
lars on the issuance of the certificates. 

Sec. 6. All acts or parts of acts conflicting with this act an 
»• reby repealed. 

Sbc. 7. This act shall take effect immediately. 

Approved March 21, 1872. 



An Act to amend an Act entitled " An Act to provide for the Fo^ 
motion of Corporations for certain Purposes." approved April 
fourteenth^ eighteen hundred and Jifty-ihree. [Stats. 1871-72, 
pf 626-7.J 

[Enacting clause.] 

SxcnoN 1. Three or more persons may ineoiporate. 

Section 1. Section two of said act is hereby amended so as to 
tead as follows : 

Sec. 2. Any three or more persons who may desire to form a 
•ompany for any one or more of the purposes specified in the pre- 
ceding section, may make, sign, and acknowledge before sonif 
•fficer competent to take the acknowledgment of deeds, and file Ji 



▲PPBNBIX. 47l 

tte office of the county clerk of the county in which the print ipal 
place of business of the company is intended to be located, and 
certified copies thereof under the hand of the clerk and seal of the 
County Court of said county, in the office of the secretary of state, 
and in the office of the clerk of the several counties in which thev 
may carry on their business, a certiiicate in writing, in which shall 
be statedthe corporate name of the company, the object for which 
the company shall be formed, the amount of its capital stock, the 
time or its existence, not to exceed fifty years, the ffUmber cf 
flhares of which the stock shall consist, the number of trustees, 
and their names, who shall manage the concerns of the company 
for the first three months, and the names of the city, or town, and 
county in which .the principal place of business of the company 
is to be located. 

Sec. 2. This act shall take effect and be in force from and after 
Ha passage. 

Approved March 23, 1872. 



Jn Act iupplemental to an Act entitled ^^An Act to authorize ihe 
Incorjioraiion of Canal Compnniea, and to provide for the Con- 
itruetion ofCnnals and Ditches,^^ approved April second^ one thou^ 
mmd eiglit hundred and seventy. [Stats. 1871-72, pp. 732-733.] 

[Enacting clause.] 

Bsononl. Formation of cori)oratlon8. 
2. Location of routes and sites. 
8. Condemnation of land. 
4. Bridges. 
6. Applies onlj to Tehama Count j. 

Section 1. Corporations may bj formed under the provisions 
of the act entitled, "An act to provide for the formation of cor- 
porations for certain purposes," approved April fourteenth, eigh- 
teen hundred and fifty-three, and of the several acts amendatory 
thereof and supplementary thereto, for the following purposes, 
namely, the construction of canals, ditches, and flumes, for the 
transportation of passengers or of freight, or of both passengers 
aa? freight, for supplying water for irrigation, for procuring water 
powei, for conveying'water for mining or manufacturing or agri- 
cultural purposes, or for any or all of such purposes combined. 

Sec. 2. Any company organized in pursuance of this act, or any 
companjy organized under any preexisting acts for similar pur- 
poses, shall have power to locate and fix upon the line or route of 
Its proposed ditch, canal, or flume, and select the site or sites ol 
Its proposed dams, embankments, and reservoirs, in conformi^ 
iritli tiM designation of its engineer or business manager. 



ATI JLPPBITDIZ. 

Sbo. 8. After Uie lapse of ten days from the filing of the report 
of the commissioners, if no motion to vacate the same is made, or 
tf, heing made, it is denied, or after the lapse of ten days from the 
filing of the report of a new commission, as provided in the act to 
Irhich this act is supplemental, the county judge shall proceed to 
make an order upon the same, condemning so much of the land a* 
he shall deem necessary for such canal, or ditch, or flume and otbef 
works ; such order ^hall declare the sum to be paid by way of 
damages by such company, and shall award to such company 
the right to occupy such fand and construct the proposed worlu 
unon payment by it to such owner or occupant of the sum so pro- 
vided, which said order shall be duly tiled m the office of the clerk 
of said County Court ; and from the date of the payment of such 
tum to such owner or occupant, the said company shall have full 
right and authoritv to enter upon such land, and to erect and con- 
struct its proposed canal, ditch, or 'flume, and other works alon^ 
the proposed route and upon its proposed site and sites, and shall 
have and enjoy the said land so condemned during the existence 
of such company' ; provided^ that at any stage of the proceedings 
under this act subsequent to the presentation of the county jud^e 
of the petition mentioned in the act to which this is supplemental, 
and to the filing of the same in the office of the clerk of said 
court, said court or the judge thereof at chambers shall, by order 
or rule in that behalf made, authorize such company, if already in 
possession, to continue the use and possession of the land so sought 
to be condemned, or if not in possession, to take possession of and 
to use the same for the purposes for which it is sought to be con- 
demned, during the pendency a^^d until the final conclusion of 
tuch proceedings, and shall stay ail actions and proceedings against 
such company on account thereof ; promded, further, that such 
company shall pay into court a sufficient sum of monev, or give 
security to be approved by said court or the judge thereof, to 
pay the said damages when ascertained, and such other damages 
as such owner or occupant of said premises shall sustain by reason 
of such entry upon and use of the same under and in pursuance 
of the order last aforesaid if said petition shall be denied or dis 
missed. 

Se<% 4. Every company organized in pursuance of this act shall 
construct and keep in good repair at all times, for public use, the 
various bridges across any canal, ditch, or flume owned by it, 
required by the board of supervisors of the county whereiu such 
crossing is situated, such bridge being on the line or crossing a 
public highway or county road, and necessary for public use. 

Sec. 5. The provisions of this supplemental act shall appiv tc 
the county of Tehama only; but nothing herein contained snaL 
lie construed as repealing any part or portion of the act to which 
•his act is supplemental, or of the act entitled, ** An act to author- 
«t tht inc4>rporation of canal companies and the construction ol 

Digitized by VjOOQIC 



APPENDIX. 479 

canals," approred May fourteenth, eighteen hundred and sixty* 
two, but the said act shall be and remain in full fori.6, except ai 
said act shall be construed and modified in its application to tb. 
county of Tehama by the provisions of this act. 

Skc 6. This act s'hall take effect and be in force from and aftoi 
Its passage. 

Approved March 30, 1872. 



Jm Act in BelaHon to Foreign Corporations. [Stats. 1871*72, 
p. 826.] 

[Enacting clause.] 

BioiionI. a resident must be designated upon whom process maj b« 
• served. 

2. Penalty for failure to designate. 
8. Privileges on compliance. 

Section 1. Every corporation heretofore created br the laws of 
any other State and* doing business in this State shall, within one 
hundred and twenty days after the passage of this act, and any 
corporation hereafteV created and doing business in this State, 
within sixty days from the time of commencing to do business in 
this State, designate some person residing in the county in which 
the. principal place of business of said corporation in this State is, 
upon whom process issued bv authority of or under any law of 
this State may be served, and within the time aforesaid shall file 
such designation in the office of the secretary of state; and a 
copy of such designation, duly certified by said officer, shall be 
evidence of such appointment; and it shall be lawful to serve on 
such person so designated any process issued as aforesaid. Such 
service shall be made on sucfi person in such manner as shall be 
prescribed in case of service required to be made on foreign cor- 
porations, and such service shall be deemed to be a valid service 
thereof. 

Sec. 2. Every corporation created by the laws of any other State 
which shall fail to comply with the provisions of the first section 
of this statute shall be denied the benefit of the statutes of thif 
State limiting the time for the commencement of civil actions. 

Skc. 3. Every corporation created by the laws of any othef 
State which shall comply with the provisions of the first section 
of this statute shall be entitled to the benefit of the statuteB of 
Uiis State limiting the time for the commencement of civil ao 
ions. ^ I 

Approved April 1, 1872. g -^^ by L^OOgle 



174 ATPBITDIZ. 

Jm Act topromoU IrrigoHtm. [Stats. 1871-2. pp. 

[Enacting claiue.] 

BaonoH 1. Petition!. 

2. PubUcation. 

8. Districts. 

4. Approval of petltloDi 

6. Record, 
t. Trustees. 

7. By-laws. 

8. Powers of trustees. 

9. Reports. 

10. Assessments for benefits. 

11. Warrants. • 

12. Payments. 
18. Subsequent assessmentru 

14. Lists. 

15. What lists must contain. 

16. Certified copies. 

17. liens. 

18. Time for payments. 

19. Collection by suit. 

20. Work. 

21. Accounts. 

22. Property. 
28. Condemnation. 
24. Code of civil prooeduie. 
26. Individual owners 
26. PrivUeges 

Skctioh 1. Whenever the owners of any body of lands m 
tible of one mode of irrigation or drainage desire to irrigate or 
drain the same, they may present to the M>ard of snpenriaon of 
the county in which the lands or the greater portion thereof arc 
situated, at a regular meeting of the board, a petition setting forth 
th&t they desire to adopt measures to irrigate the same, the do- 
Bcription of the lands by legal subdivisions, the number of acres ia 
the whole district, and the number of acres in each tract, with tho 
names of the owners thereof and the names of three peraons who 
mav desire to serve as trustees for the first three months. 

SBC. 2. The petition must be verified by the afiidavit of one of 
the petitioners, and must be published for four weeks next preced- 
ing the hearing thereof, in some newspaper published in thecoun^ 
in which the lands are situated ; or, if tiiere is no newspaper pub- 
lished in the county, then it must be published in some newsiMipeff 
having a general circulation in the county, acd an affidavit ol 
publication must be filed with such petition. 

Skc. 3. When a district is situated partly in different countiet 
the trustees must, after the petition has been granted, forward 



APPENDIX. 471 

BOpv thereof to the clerk of the board of supervisors of each of the 
counties in which any portion of the district may lie, and thi 
board to which the same is forwarded must not allow another dia- 
trict to be formed within such district unless with the consent of 
the trustees thereof. 

Sec. 4. If the board of superyi.«iors find upon the hearing of the 
petition that ihe statements are coiTect, ana that no land is im- 
properly inchided or excepted from the district, they must note 
their approval on the petition, which approval must be signed by 
the president and attested by the clerk ; and from and after the 
approval the district is duly formed, and the persons named in the 
petition are the trustees for the first three months, and until their 
luctessors are appointed. 

Sec. 5. The petition must then be recorded by the county re 
corder in a book kept for the purpose. 

Sec 6. After the approval of the petition, the petitioners may 
make such by-laws as they deem necessarv for future appoint- 
ment of trustees and to effect the works of irrigation or drainage, 
keep the same in repair and operation, and for the control and 
management thereof, by the votes or consent of a majority of the 
owners of the lands within their district. 

Sec. 7. The by-laws adopted must be signed by persons owning 
a majority of the land within the district, and must be recorded 
by the county recorder in the same book and immediately follow- 
mg the petition. 

Sec. 8. The board thus formed have power to elect one of theii 
number president thereof, and to employ engineers to survey, 
plan, locate, and estimate the cost of the works necessary for the 
irrigation, the water rights needed, and the land needed for right 
of way, including drains, canals, sluices, water gates, embank- 
ments", and materia] for construction, and to construct, maintain, 
and keep in repair all works necessary to the object in view. 

^ Sec. 9. The board of trustees must report to the board of super* 
visors of the county, or if the district is in more than one county 
then to the board o^ supervisors of each county in which the dis- 
trict is situated, the plans of the work and estimates of the cost«^, 
together with estimates of the incidental expenses of superintend- 
ence, repairs, &c. 

Skc. 10. The board by which the district was formed must ap- 
point three commissioners, disinterested persons, resident of the 
county in which the district or some part thereof is situated, and 
must view and assess upon the lands situated within the district 
a charge proportionate to the whole expense and to the benefits 
which will result from such works, which charge must be collected 
And paid into the county treasury as hereinafter provided, and 
must be placed by the treasurer to the credit of the district, and 
l»aid out for the work of irrigation or drainage upon the warrant! 
of the trustees, approved by the board of supervisors of tht 
%oaiity. 



A76 AFPBNDIZ. 

Sec. 11. Tbe warrants drawn by the tmstees must, after they 
are approved by the board of supervisors, be presented to th« 
treaaurer of the county, and, if they are not paid on presentation, 
like indorsement must' be made thereon, and they must be regis* 
tered in like manner as county warrants. 

Sec. 12. If a district is situated partly in different countiefl, the 
charge must be paid into the treasury of the county in which the 
particular tract may be situated. 

Sec. 13. If the original assessment is insufficient to provide for 
the complete irrigation or drainage of the lands of the district, or 
if further assessments are from time to time reouired to provide 
for the protection, maintenance, and repair ot the works, the 
trustees must present to the board of supervisors by which the 
district was formed a statement of the work to be done and its 
estimated cost, and the board must make an order directing the 
commissioners who made the original assessment, or other com- 
missioners to be named in such order, to assess the amount of such 
estimated cost as a charge upon the lands within the district, 
which assessment must be made and collected in the same man- 
ner as the original assessment. 

Seo. 14. The commissioners appointed by the board of super- 
visors must make a list of the charges assessed against each tract 
of land. 

Sec. 15. The list must contain : 

1. A description by legal subdivisions or natural boondaiies, of 
each tract assessed. 

2. The number of acres in each tract. 

8. The names of the owners of each tract, if known, and if un- 
known, that fact. 

4. llie amount of the charge assessed against each tract. 

Sec. 16. The list so made must be filed with the coun^ treas- 
urer of the county, or if the district is partly situated in different 
connties, then the original list must be filed in the county first in 
order under alphabetical arrangement, and copies thereof, certified 
by the commissioner, must be filed with the treasurer ot each of 
the other counties. 

Sec. 17. From and after the filing of the list, or certified copy 
thereof, ^ charges assessed upon any tract of land within tne 
county constitutes a lien thereon. 

Sec. 18. The lists thus prepared must remain in the ofllce of ths 
treasurer for thirty days, or longer If ordered by the board ol 
trustees, and during the time they so remain any person may pay 
the amount of the charge against any tract to the treasurer, with 
oat cost 

Sec. 19. If at the end of thirty days, or of the longer time fixei 
by the trustees, all of the charges have not been paid, the tr«afr 
arer must return the lists to the district attorney, who most i^ 
wee proceed by civil action to collect such charges. 



APPsyDix. 471 

Skc. 90 The work must ^e executed under the direction and in 
tfie manner prescribed by the board of trustees. 

Sec. 21. The board must keep accurate accounts of- all expen- 
ditures, which accounts, and all contracts that niaj be made by 
them, are open to the inspection of the board of supervisors and 
every person interested. 

Sec. 22. The trustees may acquire, by purchase, all property 
necessary to carry out and maintain the system of irrigation or 
drainage provided for. 

Skc. 23. The trustees may acquire b^ condemnation: 

1. The right to the use of any running water not already used 
for culinary or domestic purposes, or for irrigating, milling, or 
minmg purposes. 

2. The right of way for canals, drains, embankments, and other 
work necessary, and may take materials for the construction, 
maintenance, and repair thereof, from lands outside of as well as 
within the limits of the district. 

Skc. 24 The provisions of Title VII., Part III., of the Code of 
Civil Procedure are applicable to, and the condemnation herein 
provided for must be made thereunder. 

Sec. 25. Whenever any district susceptible of one mode of irri- 
gation or drainage is entirelv owned by parties who desire to irri- 
gate or drain the same, and to manage the irrigation or drainage 
without the intervention of trustees or the establishment of by- 
laws, they may tile the peiition provided for in sections one and 
two, and' must state therein that they intend to undertake the 
irrigation or drainage on their own responsibility. 

Sec. 26. If the petition is granted, the owners of the lands 
have all the rights, immunities, and privileges granted to boards 
of trustees, and in all proceedings the names of the owners may 
be used instead of the names of trustees. 

Sec. 27. This act shall not be so construed as applying to the 
counties of Fresno, Kern, Tulare, and Yolc. 

Skc. 28. This act, and the provisions of the title of the Code 
of Civil Procedure herein referred to, so far as proceedings undef 
this act are to be had, shall be in force from and after the passagi 
ff this act. 

Approved April 1, 1872. 
31 



,y Google 



A7t AFPEHDIX. 



iin Act in BelaHon to the Care of Orphan and Ahandomed Cfttl> 
dren. [Stats. 1873-4, pp. 29T-^.] 

[Enacting clause.] 

Bionoir 1. Name* mnst be published quarterly. 

2. Abandonment by parents a misdem e anor. 

8. Child remaining in asylum one year is deemed abandoned. 

4. Managers entitled to guardianship of abandoned child. 

Section 1. It shall be the duty of the officers or manageraul 
each and every orphan asylum in this State, to publish, on the 
first of January, April, July, and October, in each year, in some 
newspaper of general circulation published in the county whert 
such asylum snail be situated, a notice, giving the name, age, 
and ^ex of each child received into such orphan asylum as an 
orphan since the last quarterly publication, together with such 
other information as would be fikely to lead to the identificatioa 
of such child by its relations or friends. Such notice must be pub- 
lished for at least four weeks, if in a weekly, and for at least tea 
days, if in a daily newspaper. 

6eo. 2. Any parent who shall knowingly and wilfully abandon^ 
and who, having the ability so to do, shall fail, neglect, or refuse 
to maintain his or her minor child under the age of fourteen years. 
shall be deemed guilty of a misdemeanor, and may be prosecuted 
and punished therefor, and shall forfeit the guardianship of such 
child. Any person who shall falsely, knowing the same to be 
false, represent to any manager, officer, or agent of any orphan 
asylum or charitable association for the care of orphans, that an^ 
child for whose admission into such asylum application is made, £b 
an orphan, shall be deemed guilty of a misdemeanor, and punished 
accordingly. 

Sec. 3. Any parent or guardian who shall knowingly pennit 
bis or her child or ward to remain for the space of one year in any 
orphan asylum in this State, wherein such child shall be supporter 
by charity, and who, during such period, shall fail or neglect ta 
give notice in writing to the managers or officers of such asylum 
that he or she is such parent or guardian, shall be deemed to have 
abandoned, and shall rorever foneit all right to the guardianship, 
care, custody, and control of such child. 

Sec. 4. 'The officers or managers of the orphan asylum having 
any such abandoned child in its care, shall have the preferre? 
right to the guardianship of such child, and upon application to 
the courts in the manner prescribed bylaw, shall be duly appointed 
such guardians, and shall have letters of guardianship. 

Sec. 5. Ihis act shall take effect from and after its nassaira 

Approved March 7, 1874. F«»«8«. 

« Act of March 25 1880. Digitized by Google 



ATPavDix. 479 



M Ad r€taimg to C<mveyance$ of Real EsUUe, [SUts. 1873-4 
pp. 345-«.] 

[Enacting clause.] 

ftKnmi 1. Gonreyance by party who has changed his name. 
2. CoDTeyance to be indexed in both names. 
8. Duty ol recorders. 

Sbction 1. Any person in whom the title of real estate is vested, 
who shall afterwards, from any cause, have his or ber nam< 
ehanged, shall, in any convevances of said real estate so held, set 
forth the name in which he or she derived title to said real 
estate. 

Sec. 2. All conveyances of real estate, except patents issued by 
the State as a party made by any public officer pursuant to any 
law of this State, shHll, when recorded by the county recorder, 
be by him alphabetically indexed in the '^* Index of Grantors,'* 
both in the name of the officer making such sale, and in the name 
of the person owning the property so sold. 

Sec. 3. It is hereby made the duty of all conntr recorders to al- 
phabetically index, in the ** Index of Grantors,'' both in the namo 
oy which title was acquired, and also by which the same was con- 
veyed, all conveyances referred to in section one of this act. 

Sec. 4. This act shall be in force from and after its passage. 

Approved March 11, 1874. 



An Act supplementary to a» Act entitled an Act to atUhoritBe tk€ 
fomtoiion of Corporations to provide the Members thereof utitk 
Homesteads^ or Lots of Land suitnblefor Homesteads^ approved 
May twentieth, eighteen hundred and sixty-one. [Stats. 1872^ 
11.625.] ^ I --f 

[Enacting clause.] 

BionoN 1. Extending corporate existouce. 
2. Extension, how made. 

Section 1. Any corporation formed under the act to which tLik 
act is supplemental, whose period of existence is not stated in ita 
articles of incorporation to be ten years, may continue its corporate 
fxistence for. ten years from the date of filing its articles of incor- 
^ration, upon complying with the provisions of this act. 

Sec. 2. Any such corporation existing on the tirst day of Jan- 
lary eighteen hundr«>d and seventy-four, may, at any time befori 



180 APPENDIX. 

ts period of existence, as stated in its articles of incorporation, 
«hall expire, continue its existence, as stated in section one of this 
tct, by a majority vote of its board of trustees at any meeting of 
luch board, or by a vote of a majority of the stockholders as the 
9oard uf trustees may elect. A certificate of the action of the 
tirectors, signed by them and their secretary, when the election 
IB made by their vote, or upon the written consent of the stock- 
holders or members, or a certificate of the proceedings of the meet- 
ing of the stockholders or members, when such election is made at 
any such meeting, signed bv the chairman and secretary of the 
meeting and a majority of t^e directors, must be filed in the oflSce 
of the clerk of the county where the original articles of incorpora- 
tion are filed, and a certified copy thereof must be filed in the 
office of the secretary of state ; and thereafter the corporation 
shall continue its existence under the provisions of this act, and 
shall possess all the rights and powers, and be subject to all the 
obligations, restrictions, and limitations prescribed by the act of 
which this is supplementary. 

Ssa 3. This act shall take effect from and after its passage. 

Approved, March 23, 1874. 



An Ad to enable Certain Parties therein named to aUenat0 or m- 
cumber Homesteadt, [Stats. 1873-4, pp. 58S-d.] 

[Enacting clause.] 

SiOTiON 1. Sale of homestead of insane person. 
2. What notice given. 
8. Application, when filed. 
4. Order of court. 
6. Fees of public administrator. 

Section 1. In case of a homestead, if either the husband or 
wife shall become hopelessly insane, upon application of the hus- 
band or wife, noc insane, to the Probate Court of the county in 
which said homestead is situated, and upon due proof of such 
isanity, the court may make an order permitting the hu-sband or 
wife, not insane, to sell and convey, or mortgage such home* 
itead. 

Sec. 2. Notice of the application for such order shall be given 
by publication of thesame« in a newspaper published in the county 
n which Buch homestead is situated, if there be a newspaper 
published therein, once each week for three successive weeks prior 
*o the hearing of such application, and a copy of such notice 
ihalPalso be servf^d upon the nearest male relative of such insane 
Q isband or wife, resident in this State, at least three weeks priof 



APPENDIX. 4 4 

ID such application ; and in cane there be no^ such male relative 
Known to the applicant, a e.^py of such notice shall be serve« 
upon the public administrator of the county in which such home- 
stead is situated ; and it is thereby made the duty of such public 
admin istrator, upon being served with a copy of such notice, to 
appear in court and see that such application is made in good 
faith, and that the proceedings thereon are fairly conducted. 

Skc. 3. Thirty days before the hearing of any application under 
the provisions of the act, the applicant shall present and file in 
the court in which such application is to be heard, a petition for 
the order mentioned in the first section of this act, subscribed and 
■worn to by the applicant, setting forth the name and age of the 
insane husband or wife; the number, age, and sex of the chil- 
dren of such insane husband or wife ; a description of the prem- 
ises constituting the homestead; the value of the same; the 
county in which it is situated, and such facts in addition to that 
of the insanity of the husband or wife relating to the circum- 
stances and necessities of the applicant and his or her family, as 
he or she may rely upon in support of the petition. 

Sec. 4. If the court shall make the order provided for in the 
first section of this act, the same shall be entered upon the rnJA- 
utes of the court, and thereafter any sale, conveyance, or mort- 
gage made in pursuance of such order, shall be as valid and 
effectual as if the property affected thereby was the absolute 
property of the person making such sale, conveyance, or mort- 
gage, in fee simple. 

Sec. 5. For all services rendered py anv public administrator, 
under the provisions of this act, he shafl be allowed a fee not 
exceeding twenty dollars, to be fixed by the court, and the same 
shall be taxed as costs against the person making application 
for the order herein provided for. 

Sec. 6. All acts and parts of acts in conflict with the pro- 
visions of this act are hereby repealed. 

Sec. 7. This act shall take effect and be in force from and 
$iter its passage. 

Approved, March 25, 1874. 



i» j.ct rekUing to Mutual, Beneficial, and Relief AMOciatiom 
[Stats. 1873-74, pp. 745-6.] 

[Enacting clause.] 

BionOH 1. Associations may be formed. Number of memb«n. 
2. Formed by filing certificate. 
«. AssessmenlM. ^^.^.^^^ ^^ GoOglc 



482 APFENDIZ. 

laonoHi Haysiieaiidownpiopcrtj 
6. By-l»w». 
6. Existing •ssociationB may aTail th«mMlT«8 ol this Ml 

Skotion 1. Associations may be formed for the purpose of pav- 
mg to the nominee of any member, a sum upon the death of said 
member, not exceeding three dollars for each member of such as- 
lociation. No such association shall exceed in number one thou- 
sand persons. 

Seo. 2. Such association shall be formed by filing a verified 
eertincate in the office of the clerk of the county in which th« 
principal place of business shall be situated, and filing a like cer- 
tificate in the office of the secretary of the state ; such certificate 
shall'state the general objects of the association, its principal place 
of business, and the names of the officers selected to hold office 
for the first three months, and shall be signed by said officers, and 
verified by at least three of them. 

. Sec. 3. Said associations, upon the death of each member, may 
.evy an assessment upon each member living at the time of the 
death, not exceeding three dollars for each member, and collect 
the same, and pay the same to the nominee of such deceased ; and 
may also provide the payment of such annual payments of mem- 
bers as may be deemed hesU Such armual assessment upon any 
one member not to be raised above the annual assessment estab- 
lished at the time such member joined such association. 

Sec. 4. Such association, by its name, may sue and be sued, and 
may loan such funds as it may have on hand, and may own suffi- 
cient real estate for its business purposes, and such other real es- 
tate as it may be necessarv to purchase on foreclosure of its mort- 
gages ; provided^ such real estate so obtained through foreclosure 
shall be sold and conveyed within five years from the day title is 
obtained, unless the District Court of the proper district shall, upon 
petition and good cause shown, extend the time. 
^ Sec. 5. Such association may make such by-laws, not incon- 
sistent with the laws of this State, as may be necessary for its gov 
ernment, and for the transaction of its business, and shall not bt 
subject to the provisions of the general insurance laws. 

Sec. 6. All associations heretofore formed for the objects con- 
templated by this act, and now in operation, may avail themselvei 
•f its provisions by filing the certificate provided for in section one 
jroviaedj that such societies shall not have a greater membenhif 
than three thousand. 

Sec. 7. This act shall take effect immediately. 

Approved March 28, 1874. 



,y Google 



APPENDIX. 488 



dbi Act for the Better Protection of the Stockholders in Cofpora- 
tions farmed under the Laws of the State of California^ for tht 
purpose of Carrying on and Conducting the Businesi of Mining, 
[Stats. 1873-74, pp. 866-867.] 

^ [Enacting clause.] 

BiOTiON 1. Books to be open for examination of stockholders ; written 
statements semi-annually. 
2. Stockholders to have the right of examining property. 
8. Irustees liable to fine and expenses. 

Section 1. It shall be the duty of the secretary of every coy 
poration formed under the laws of the State of California, for t(ne 
purpose of mining, to keep the books of such corporation, a^^re- 
Bcrioed by its by-laws, provided such by-laws are not incon^tent 
with the laws of this State. The booksof such corporatUm shall 
be produced for examination and inspection during tlurhours of 
business, every day in the year, Sundays and le^al Mlidays ex- 
cepted, upon the demand of any stockholder, faoldimji^nd present- 
ing a certificate of stock in such corporation, eitlier in his own 
name or properly indorsed; and the secretary o^uch corporation 
shall be required upon the demand of any j^ckholder holding 
stock in such corporation, to the amount olifve hundred dollars, 
par value, to have the books of the corporanon written up at the 
end of each month, and shall make ou^i balance sheet showing 
the correct financial condition of the conporation ; and on or before 
the tenth day of January and July o^cachyear, he shall make out 
a written statement, showing all tbe business and financial trans- 
actions of the con oration for tl^six months preceding, which 
statement shall also contain s^uW description of all property of 
the corporation, and the chaolfcter and extent of the same, and 
such statements, together wi^all papers and records of the corpo- 
ration, shall be open to e^niination and inspection upi)n any de- 
mand by such stock hold^. All demands of stockholders, as spe 
cified in this section, sh^l be made to the secretary, at the office of 
the corporation, whej^its principal place of business is located. 

Skc. 2. Any o\g^r of stock, of the par value of $500, in any 
of the corporatio^ mentioned in section one of this act, shall at 
all hours of bu^iess or labor on or about the premises or property 
of such corpo^tion, have the right to enter upon such property 
and examin^the same, either on the surface or underground. And 
it is heiy^r made the duty of any and all officers, manager«», 
agentSj^perintendents, or persons in charge, to allow any such 
stockholder to enter upon and examine any of the property of such 
coronation, at an^ time during the hours of business or labor, 
Aw^ the presentations of certificates of stock in the corporation of 
|ue par value of $500, to the officer or person in ^arge, shall be 

jgitizedbyGoOgle 



484 APPBNDIX. 

fnimd/acie evidence of ownership and right to enter upon or iMf 
and make examinations of the property of the corporation^^^^ 

Sec. 3. The violations of any oi the provisions of s^ifions one 
and two of this act, shall subject the trustees of th^^^fSrporation to 
a fine of two hundred dollars and costs of suj^ij^md the expenses 
of the stockholders so refused, in travellmp^<oand from the prop- 
erty, which may be recovered in an^,.eourt of competent jurisdic-^ 
tion, either in the county wherejb'ir^roperty is situated, or in the 
county where the office andprti^pai place of business of the cor- 
poration is situated, w^fi^fs&id fine shall be imposed and collected 
tor, and paid over^pi<iie person so refused, together with all mon- 
eys collected fjjpC^ said travelling expenses. 

Sec. 4^^^^>tacts in conflict with the provisions of this act are 
beieb^X^aled. 
>JJproved March 30, 1874. 
'See Act of 1880, p. 491. 



An Act concerning Corporations and Persons engaged in the Bmd' 
ness of Banking. [Stats. 1875-76, p. 729.] 

[Enacting clanse.] 

SBCTioir 1. Banks to publish semi-annual statements. 
2. Assets and lUbilities to be described. 
8. Liability for making false statement. 
4. Foreign banking corporations. 
6. Recover to keep records. 
6. Fees of recorder. 

Section 1. Every corporation, and all persons, and e> ery per- 
son hereafter doing a banking business in this State shall, in Jan- 
uary and July of every year, publish in at least one newspaper 
published in the county 'in which the principal office of such cor- 
poration may be situated, or in which said persons or person may 
reside, and 'also file for record, in the recorder's office of said 
county, a sworn statement, verified, in the case of any snch cor- 
poration, bv its president or manager, and by its secretary or 
cashier, and in the case of any such individual or individuals, by 
him or them, of the amount of capital actually paid into such cor- 
poration, or into such banking business ; provided., that nothing 
shall be deemed capital actually paid in except money bona fide 
paid into the treasury of such bank, and under no circumstances 
shall the promissory note, check, or other obligation of any di- 
rector or stockholder, or of the proprietors or proprietor of any 
such bank, be treated, computed, or in any manner considered 
%ny part of such actually paid in capital. If no newspaper of 
IpnenJ circulation be published in the aforementioned coontj, 

Digitized by VjOOQ IC 



APPENDIX. 485 

Jien ant m that case such publication of said statement shall be 
made in at least one newspaper of general circulation published 
vn the iitVjr and county of San Francisco, and in one newspaper of 
general circulation published in the citj* and county of oacra- 
mento. 

Sec. 2. Every corporation and all persons and every person 
hereafter doing a banking business in this State shall likewise 
publish in such newspaper or newspapers, and shall also file for 
record, in the recorder's office of said coanty, in January and 
July of each year, a like sworn statement of the actual condition 
and value of its assets and liabilities, and where said assets art 
situated. 

Sec. 3. The directors of every such corporation which shall 
publish or tile for record, as aforesaid, a false statement of the 
amount of capital actually and bond tide paid into such corpora- 
tion, or a false statement of the actual condition and value of its 
assets and liabilities, or as to where said assets are situated, shall 
be jointly and severally liable to any person thereafter dealing 
with such corporation to the full extent of such dealing ; and no 
corporation, and no person or persons who fail to compfy with the 
provisions or any of the provisions of this law, shall maintain or 
prosecute anv action or proceeding in any of the courts of this 
State until they shall have first duly filed the statements herein 
provided for, and in all other respects complied with the provisions 
of this law ; nor shall any assignee or assignees of any such cor- 
/M>ration or person whose assi^ment shall be made subsequent to 
tOiy such failure to comply with the provisions of this law, main- 
ain any action or proceeding in anv court of this State until his 
»r their assignor or assignors shall have first duly complied with 
he provisions of this law. 

Sec. 4. Where anv of such banking corporations shall be for- 
lign, the statements hereinbefore provided for shall be verified by 
the a^nt or manager of the business of such corporation resident 
in this State, who shall be subject to the same liabilities herein 
provided as against directors of anv such banking corporation, and 
also as against every such bank ofhcer. 

Skc. 6. The recorder of each county of this State shall keep two 
sets of well-bound books for the record of the sworn statements 
herein pro\nded for, respectively, one of which sets of books shall 
be labelled, ^' Statements of Banking Capital,'' and the other, 
•'Statements of Banking Assets," and said recorder shall, upon 
the payment of his fees for the same, record separately said respec- 
tive sworn statements in its appropriate book, and shall keep a 
separate index of each of said sets of books. Said original sworn 
Statements need not be acknowledged ic order to be recorded as 
aforesaid, but must be venfied as aforesaid before some judge oi 
officer of this State authorized to take affidavits to be used before 
my court in this State, and shall always remain and be kept on 
tte in the office of said recorder. 



466 APPENDIX. 

Skc. 6. The recorder of every county in this State shall receiTe, 
for recording any of the sworn statements herein provided for, for 
every folio, twenty-five cents ; and for noting on any such sworn 
itatement the time when and the place where recorded, twenty- 
five cents ; and for certified copies of such sworn statements, to 
which any one paying for the same shall be entitled, twenty-fiv« 
cents per 'folio. 

Sec. 7. This act shall take effect from and after its passage. 

Approved April 1, 1876. 



An Act concerning Lodging-houses and Sleeping Apartments withm 
the Limits of Incorporated Cities, [Stats. 1875-6, p. 759.] 

[Enacting clause.] 

SEcnoN 1. Number of cubic feet for each person. 
2. Misdemeanor. 
8. Arrest. 
4. Buildings excepted. 

• SscTioiT 1. Every person who owns, leases, lets, or hires, to 
any person or persons, any room or apartment in any building, 
house, or other structure, within the limits of any incorpK>rated 
city, or city and county, within the State of California, for the 
purpose of a lodging or sleeping apartment, which room or apart- 
ment contains less than five hundred cubic feet of space, in the 
clear, for each person so occupying such room or apartment, shall 
be deemed guiltv of a misdemeanor, and shall, upon conviction 
thereof, be punisned by a fine of not less than fifty (50) dollars or 
more than five hundred (500) dollars, or by imprisonment in the 
county jail, or by both such fine or imprisonment. 

Sec. 2. Any person or persons found sleeping or lodging, or 
who hires or uses for the purpose of sleeping in, or lodging in anj 
room or apartment which contains less than five hundred (50U) 
cubic feet of space, in the clear, for each person so occupying such 
room or apartment, shall be deemed guilty of a misdemeanor, and 
shall, upon conviction, be punished by a fine of not less than ten 
(10) or more than fifty (50) dollars, or by both such fine and im- 
prisonment. 

Sec. 3. It shall be the duty of the chief of police (or such other 
person to whom the police powers of a city are delegated), to de- 
^1 a competent and qualified officer or officers of the regular force 
lo examine into any violation of any of the provisions of this ac^ 
lOid to arrest any person guilty of any such violation. 

Sbo. 4. The provisions of this act shall not be construed tc 
.^ply to hospitals, jails, prisons, insane asylums, or other publie 
vstittttions. 



APPENDIX. 487 

Sbo. 5. All acts or ]>arts of acts in conflict with the pro^isioiiB ol 
diis act are hereby repealed. 

Sko. 6. This act shall take effect and be in force from and altir 
its passage. 

Approved April 3, 1876. 



dn Act Relative to Apprentices and Masters. [Stats. 1875-6, pp« 
842-845 ; as amended Stats. 1880, p. 177. J 

[Enacting clause.] 

BlOTiON 1. Minors may be apprenticed. 
2. By whom. 
8. Consent of minor necessary. 

4. Indentures. 

5. Indentures not binding after death of xouUk 

6. When mother may consent. 

7. Executor may bind. 

8. County Court may bind. 

9. Obligations of master. 

10. Payments to be to apprentice alone. 

11. Treatment of apprentices. 

12. Age to be stated. 

13. Court to hear complaints. 

14. Court may discliarge apprentice. 

15. Liability of master. 

16. Action for neglect, &c., of apprentioe 

17. Court may dissolve apprenticeship. 

18. Parties to indenture liable for breach of coreaiaBt 

19. Encouragement of runaway a misdemeanor 

20. On remoTal of master from the State. 

Section 1. All minors, at the age of fourteen yean, maybe 
bound by covenant or indenture, in conformity with the stipula- 
tions herein specitied, to any mechanical trade or art, or the occa- 
pation of farming, as apprentices ; males, to the age of twenty- 
one years, and females to the age of eighteen. 

Sec. 2. Minors, at or above the age of fourteen years, may be 
oound by the father, or, in case of his death, incompetency, or 
where he shall have wilfully abandoned his family for one year 
without making suitable provision for their support, o* has become 
an habitual drunkard, vagrant, &c., then by their mother, or by 
their legal guardian; and if illegitimatA, they may be bound by 
their mother; and if they have no parent competent to act, and 
^ guardian, they may bind themselves, with the approbation of 
the Superior Court of the county where they reside • b»it the power 
)f a mother to bind her children* whether legitimate or illegitt* 



48« APPENDIX. 

mate, shall cease upon her subsequent marriage, and shall not b% 
exercised by herself or her husband, at any time during her mtas 
riage, without the approval of the Superior Court of the county 
H'hereiu she or he resides. 

Sec. 3. In all cases, tlie consent of the minor, personally, is 
required as a party to the covenant, and should be so expre^cd 
m the indenture, and testitied by his or her signing the same. 

Sec. 4. Indentures shall be signed, sealed, and delivered in 
duplicate copies, in the presence of all the parties concerned, and 
when made with the approbation of the Superior Court, or the 
judge thereof, in vacation, such approbation shall be certitied in 
writing indorsed upon each copy of the indenture. One copy of 
the indenture shall be kept for the use of the minor by his parent 
or guardian (when executed by them, respectively), but when 
made with the approbation of the court, it shall be deposited in 
the safe keeping of the clerk of said court for the use of the 
minor. The other copy shall be held by the master, and delivered 
lip by him to the apprentice at the expiration of his term of 
•ervice. 

Sec. 5. No indenture of apprentice, made in pursuance of this 
act, shall bind the minor after the death of his master, but the 
apprenticeship shall be thenceforth discharged, and the minor may 
be bound out anew. 

Sec. 6. Facts of incapacity, desertion, drunkenness, vagrancy, 
&^., shall be decided in the said court by a jury, before the in- 
denture shall take effect, and an indorsement on the indenture, 
under seal of the court, that the charge or charges are proved, 
shall be sufficient evidence of the mother's power to give such con- 
sent ; but if the jur^ do not find the charge or charges to be true, 
the person at whose instance such proceedmgs may have been had 
shall pay all costs attending the same. 

Sec. 7. The executor who, by the will of the father, is directed 
to bring up his child to a trade or calling, shall have power to 
Tind such oy indenture in like manner as the father, if living, 
tUight have done. 

Sec. 8. When any minor who is poor, homeless, chargeable to 
the county, or an outcast, has no visible means of obtaining an 
honest livelihood, it shall be lawful for the said court to bind 
i<uch apprentice until, if a male, he arrives at the age of twenty- 
one, and if a female, to the age of eighteen. 

Sec. 9. It shall be unlawful for any master to remove an ap- 
prentice out of this State; and in all indentures by the said court 
tor binding out any orphan or homeless minor as an apprentice, 
there shall be inserteo, among other covenants, a clause to th« 
following effect: that the master to whom sucn minor shall b« 
bound shall cause the same to be taught to read and write, and 
the ground rules of arithmetic, and the ratio and proportion, and 
thalf give him requisite instruction in the different branchea o| 



APPENDIX. 487 

his trade or calling; and at the expiration of his term of service, 
shall give him two full new suits of clothes and the sum of fiftj 
dollars, gold; and if a female, she shall have two full new suitp 
of clothes and the sum of. tiity dollars, gold ; the two new suits in 
either case to be w^orth at least sixty dollars, gold. 

Sec. 10. All considerations of nionej' or clothes paid or allowed 
by the master, in conformity with the foregoing section, are the 
sole property of the apprentice, and to whom the master is ac- 
countable for the same, and he shall pay or donate into the hand 
of the apprwtice alone. 

Skc. 11. Parents and guardians and the said court shall, from 
time to time, inquire into the treatment of the chililren bound by 
them respectively, or with their approbation; and the 'judges of 
the said courts shall be rei^ponsible for the charge of indentured 
apprentices bound by the approbation of iheir predecessors ir 
oihce, and defend them from all cruelty, neglect, breach of con- 
tract, or misconduct on the pait of their masters. 

Sec. 12. The age of every apprentice shall be inserted in th« 
indenture, and all indentures entered into, otherwise than as is 
herein provided, shall be, as to all apprentices under age, utterly 
void. 

Sec. 13. The County Court shall hear the complaints of appren- 
tices who reside within the county, against their masters, alleging 
undeserved or immoderate correction, insufficient allowance of 
food, raiment, or lodging, want of instruction in the different 
branches of their trade or calling, or that they are in danger of 
being removed out of the State, or any vi<»lation of the indenture 
of apprenticeship; and the court may hear and determine such 
cases, and make such order therein as will relieve the party in- 
jured in the future. 

Sec. 14. The Superior Court shall have power, where circum- 
stances require it, to discharge an apprentice from his apprentice- 
ship, and in case any money or other thing has been paid, or con- 
tracted to be paid by either party, in relation to such apprentice- 
ship, the court shall make such order concerning the same as shall 
seem just and reasonable. If the apprentice so discharged shall 
have been originally bound by the Superior Court, it shall be the 
duty of the court, if found necessary, again to bind such appren- 
tice, if under age. 

Sec. 15. Every roaster shall be liable to an action on the inden- 
ture for the breach of any covenant on his part therein contained; 
and all damages recovered in such action, after deducting the nec- 
tssary charges in prosecuting the same, shall be the property of 
the minor, and shall be applied and appropriated to his use by the 
oerson who shall recover the same, and shall be paid to the minoi; 
if a male, at the age of twenty-one years, and if a female^ at the 
jge of eighteen years. If such action is not brought during the 
minority of such apprentice, it may be commenced in his own 



490 APPEKDIX. 

name at any time within six months after coming of age, bat Ml 
later than two years. 

Sec. 16. An apprentice who shall be guilty of any groes misbe^ 
havior, or refusal to do his duty, or wilful neglect' thereof, shall 
render himself liable to the complaint of the master in the Superior 
Court of the county wherein he resides, which complaint shall set 
forth the circumstances of the case; and to said complaint shall 
be attached a citation, signed by the clerk of said court, requirins 
the apprentice and all persons who have covenanted in his behalf, 
to appear and answer to such complaint, which complaint aiid cita> 
tion shall be served on them in the usual manner of serving civil 
process. 

Sec. 17. The court shall proceed to hear and determine tba 
cause, and after a full hearing of the parties, or if the advene 
part}' shall neelect to appear after due notice, the court may render 
judgment or decree that the master be discharged from the con- 
tract of apprenticeship, and for the costs of suit ; such costs to be 
recovered of the parent or guardian of the minor, if there be anr 
who signed the indenture, and execution therefor issued accord- 
ingly ; and if there be no parent or guardian liable for such costs, 
execution mav be issued therefor against the minor, or the amount 
thereof may be recovered in an action against him after he shall 
arrive at full age. 

Sec. 18. The parties to an indenture shall also be liable to the 
master in an action on the indenture, for the breach of any cove- 
nant on their part therein contained, committed before the master 
was so discharged from such indenture. 

Sec. 19. It shall be unlawful for any person to entice, counsel, 
ir persuade to run away any apprentice, or employ, harbor, or oon- 
>teal such, knowing said apprentice to be a runaway ; and the par- 
ties so offending shall be guilty of a misdemeanor, and be subject 
to a fine of not le.«s than tifty and not more than one hundred dol- 
lars, to be recovered hy the' master in any court having jurisdio- 
tion thereof. 

Sue. 20. Whenever any master of an apprentice shall wish t» 
remove out of this State, or to quit his trade or business, he shall 
appear with his apprentice before the Superior Court of the propel 
county, and if the court be satisfied that the master liaa done jus- 
tice to the said apprentice, for the time he has had charge of the 
same, such court shall have power to discharge such apprentics 
from the service of such master, and again bind him, if uecessaryi 
to some other person. 

Skc. 21. Ail acts and parts of acts in conflict with the previa 
.ons of this act are hereby repealed. 

Sec. 22. This act shalf take effect and be in force from and iftt 
its passage. 

(Approved April 3, 1876. Amended April 9, 1880.] 



,y Google 



APPENDIX. 491 

An Act amemdcUorff of an Act entitled ^^ An Aci fyr the better 
Protection -of the Stockholders in Corporations, foitned undt^ 
the Laws of the State of Calif ornia^ for the purpose of Carrif • 
ina on and Conducting the Business of Mining,* ^ ajyprovea 
March thirtiethf eighteen hundred and seventy-four,** 

Section 1. It shall be the duty of the secretary of e^ery cor- 
poration, formed ander the laws of this State for the purpose of 
mining, to keep a complete set of books, showing all receipts and 
expenditures of such corporation, the sources of such receipts, and 
the object of such expenditures^ and also all transfers of stock. 
All books and papers shall at all times, during business hours, be 
open to the inspection of any bond fae stockholder; and if any 
stockholder shall at any time so request, it shall be the duty of the 
secretary to attend at the office of said company at least one hour 
ill the day out of regular business hours, and exhibit such books 
and papers of the company as such stockholder maj' desire, who 
shall be entitled to be accompanied by an expert; and he shsll 
also be entitled to make copies or extracts from any such books or 
papers. It shall be the duty of the directors, on the first Monday 
of each and every month, to cause to be made an itemized account 
or balance sheet for the previous month, embracing a full and 
complete statement of all disbursements and receipts, showing 
from what sources such receipts were derived, and for what and to 
whom such disbursements or payments were made, and for what 
object or purpose the same was 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 shall be verified under oath by the presi- 
dent and secretary, and posted in some conspicuous place in the 
olhce of the company. It shall be the duty of the superintendent, 
on the first Monday of each month, to file with the secretary an 
itemized account, verified under oath, showing all receipts ana 
disbursements made by him for the previous month, and for what 
said disbursements were made. It shall also be the duty of the 
superintendent to file with the secretarj a weekly statement, under 
• oath, showing the number of men employed under him and fur 
what purpose, and the rate of wages paid to each one. He shall 
attach to such account a full and complete report, under bath, of 
the work done in said mine, the amount cf ore extracted, from 
iyhat part of the mine taken, the amount sent to mill for reduction, 
its assay value, the amount of bullion received, the amount of bul- 
lion shipped to the office of the company or elsewhere, and tlie 
amount, if any, retained by the superintendent. It shall also be 
his duty to forward to the office of the company a full report, 
under oath, of all discoveries of ores or rc ineraf-bearing quartz 
made in said mine, whether by boring, drifting, sinking, or other- 
irise, together with the assay value thereof. All accounts, reports. 



492 APPENDIX. 

and correspondence from the superintendent shall be kept in some 
conspicuous place in the office of said company, and be ofien to 
the inspection of all stockholders. 

Sec. 2. Any bond Jidt stockholder of a corporation formed 
under the laws of this State for the purpose of mining, shall be 
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 to make such visit and examination; 
and when such stockholder shall make application to the president 
of such corporation, he shall immediately cause the secretary 
thereof to issue and deliver to such applicant an order, under the 
seal of the corporation, directed to the superintendent, command- 
ing him to show and exhibit such parts of said mine or mines, as 
the partv named in said order may desire to visit and examine. 
It shall I)e the duty of the superintendent, on receiving such order, 
to furnish such stockholder esrery facility' for making a full and 
complete inspection of said mine or mines, and of the workings 
therein; it shall be his dut}' also to accompany said stockholder 
either in person, or to furnish some person familiar with said mine 
or mines to accompany him in his visit to and through such mine 
or mines, and every part thereof. In case of the failure or refusal 
of the superintendent to obey such order, such stockholder shall 
be entitled to recover, in any court of competent jurisdiction, 
against said corporation, the sum of one thousand dollars, and 
travelling expenses to and from said mine as liquidated damages, 
together with costs of suit. In case of such refusal, it shall be the 
duty of the directors of such corporation forthwith to remove the 
officer so refusing, and thereafter he shall not be emplo3-ed, di- 
rectly or indirectly, by such corporation, and no salary shall be 
paid to him. 

Sec. 3. In case of the refusal or neglect of the president to 
cause to be issued by the secretary the order in the second section 
of this act mentioifed, such stockholder shall be entitled to recover 
against said president the sum of one thousand dollars and costs, 
as provided in the last section. In case of the failure of the direc- 
tors to have the reports and accounts current made and posted as 
in the first section of this act provided, they shall be liable, either 
severall}' or jointly, to an action, by any stockholder in any court 
of competent jurisdiction complaining thereof, and on proof of 
^uch refusal or failure, such complaining stockholder shall recover 
judgment for one thousand dollars liquidated damages, with costs 
of suit. 

^KO. 4. All acts and parts of acts, so far as they do conflict wit! 
fiis act) are hereby repealed. [In effect April 23, 1880.] 



,y Google 



492a APPENDIX. 

TAX. 

An Act imposing a Tax on the Issue of Certificates of Stoe* 

Corporations, 

Section 1. It shall be lawful for the secretary of everj 
eorporation in the State of California to demand and receive 
of any person requiriug the issue to him of any certificate of 
stock in such corporatit»n, a fee of ten cents in coin for each 
certiHcate, whether such certificate be the original issue or an 
issue on transfer, and such certificate shall not be delivered bjr 
the secretary until such fee shall be paid. 

Sec. 2. It shall be the duty of the secretary of every such 
t^rporation, on the first Monday in January, April, July, and 
October, of each year, to make returns, under oath, to the tax 
collector, or officer acting as tax collector, of the number of 
certificates issued by the corporation of which he is secretary, 
during the quarter preceding, and pay to such tax collector 
the sum of ten cents in coin for each and every certificate no 
issued by said corporation, except that in the city and county 
of San Francisco such returns and payments shall be made 
to the license collector or officer engaged in the collection of 
licenses in said city and county. 

Sec. 3. Such tax collector, or license collector, is hereby 
authorized and empowered to examine such secretary- under 
oath, as to the truth of said returns, and to examine, ii neces- 
sary, the books of such corporation, so far as they relate to 
the transfer of stock, or issue of certificates, and if the returns 
are not correct, then he is authorized to commence an action 
against such corporation in any court of competent jurisdic- 
tion, in the name of the people of the State of California, for 
a penalty of one hundred dollars for each certificate issued by 
such corporation and not so returned under oath, and several 
penalties may be joined in such action. 

Sbc. 4. Any person violating the provisions of section tvi o 
of this act shall be deemed guilty of a misdemeanor, and false 
swearing to any return provided in section two, shall be 
deemed perjury. 

Sec. 5. All moneys collected under the provisions of this 
act shall be paid by such tax collector, or license collector, 
into the county treasury, and shall become a part of the gen- 
eral fund, or if there shall in any county be no general fund, 
then the same shall become a part of such fund as the lK>ard 
of supervisors may direct, f Approved April 1, 1878. Took 
ȣfect first Monday of Apri. Stats. i877--8, p. 955.] 



,y Google 



INDEX. 



I The rtfenncM an to the eeetiam,] 

iMAnovm, ficder of thing not bound to keep it for owner, f 1871 
hMAKHOtnnvr, of husband bj wife, relieyoB him from duty of rappoff 
176. 

of child by parent, eridence of relinquishment of eontrol, 197 
See Act of March 7, 1874, Appendix, p. 478. 

of homestead, how only effected, 124a-1244. 

of ship by shipmaster, 2940. 

of ship, duties of shipmaster on, 2941 
Jn Marine Insurance^ 

defined, 2716. 

may be made, in what eases, 2717. 

may be made, at what time, 2719. 

how effected, 2721. 

must be absolute and total, 2718. 

when defeated, 2720. 

notice of, may be oral or written, 2721. 

notice of, to contain what, 2722. 

can be sustained only on ground specified in notio«, 273& 

effect of, 2724. 

insurer paying for total loss, entitled to^^2726. 

agents of insured act for insurer after, 2726. 

acceptance of, not necessary, 2727. 

acceptance of, not presumed from silence, 2727. 

acceptance of, conclusiYe, 2728. 

made and accepted irreyocable, 2729. 

to whom freightage belongs after, 2780. 

liability of insurer refusing to accept, 2731. 

not necessary to recover actual loss, 2732. 

not necessary to recover actual total loss, 2709. 

terminates authority of master on behalf of owner, 288L 
See Ihsukanob. 

of legacies, 1962. 

See NuiSANOBs, 8184. 8494-8496, 8602. 
iBsmoi. effect of, on marriage, 61, 97, 98. 

temporary, when may be converted into desertion, 100. 
^•QSB, of parental authority, remedy for. 208. 

of authority, renders contract voidable, 1667, 1676* 
^OOVTAMOB, of accord, is satisfaction, 1523. 

of benefit of transaction, effect of, 1689. 

<tf partial performance, when necessary, 1741 r^r^r^n]o 

•»! rent renews lease, when, 1946 ^ a^^^^ ^y V^OOglC 
82 



194 INDEX. 

loeeptanee, of fcusranty, notice of wh«n neeessary, § 2795- 

of principal, waives clidm to interest, when, 8290. 

See ABAHDONMBifT, 2727-2729, 2781 : Biu. op BzoHAHai, 8185 
8193-8199, 3208-^207. 
0/Propotalto Contract, 

See Contract, 1682 1586. 
iooxpTOK. See Bill or Exchanos, 8198, 8196, 8198, 3199, 8205, 820<. 
iooKssiON, property may b» aro'iiwd bf, 1000 
To Real Property, 

by fixtures, 1018 

by alluvion, 1014. 

by removal of bank, 1015. 

by accumulation of earth, 1010. 

by change of river's course, 1019. 
To Porsonal Property, 

by union of several things, 1025. 

by admixture of materials, 1028. 

by formation of new things, 1029. 

by workmanship, 1080 

by wilful trespass, 1081. 
A0018SORT, passes by transfer of principal, 1064. 8540. 

Uen is, ^09. 
iooiBiHT, error in contract caused by, to be disregardad, IMAi 
* deposit by, must be accepted, 1816. 

thing gained by, held in trust, 2224. 
See MiSTAU. 
4000RD, defined. 1521. 

•fTect of, 1522. 

acceptance of, is satisfaction, 1528. 

of liquidated debt, 1524. 
^OOOUHT, employee must render, 1986. ^^ 

Toluntsjry interferer with property must render, 9078 

for what trust must, 2237. 

mutual liability of partners to render, 2412. 

partner may be required to, for certain profits, 2488 
AooUMULATiONS, disposition of, 722. 

when void, 728. 

certain, allowed, 724- 

certain directions concerning, when void in part, TSBb 

surplus of, in trust, when lUble to creditors, 85v. 

certain allowances may be made out of, 726. 
^OIIOWLBDGMKNT, of declaration of marriage, 77. 

of inventory of separate property of wife, 166. 

of marriage settlement contracts, 178. 

of contract of apprenticeship of alien minors, 275. 

of articles of incorporation, 292. 

le^rs patent may be recorded without, 1160. 

ol instruments for record, 1158. 

of instruments evidencing judgment title, for record, 1169 

who may take, in this State, 1180-1181. 

who may take, in other States, 1182. 

who may take, out of the United States, 1188. 

deputy may taJce, 1184. 
quisites for, 1185. 
er taking, must indorse certificate thereon, 1188 
I of certificate of, 1189. ^ . 

uigitizedbyLjOOgle 



requisit 
ofllcer t 



IHDBX. 495 

lelcnowledgiiient, oertlficato of, by attorney In faet, f 1192. 

by married women, 1186. 

certificate of, by married women, 1191. 

interpreter may be employed in taking, 1201. 

officers authorized to take, may punish for contempt, when, 
1201. 

after taking, must affix seals and signatures, 1193. 

after, party may hare action to correct error in certifying, 1202. 

of instruments heretofore made, to be geyemed by then ezistiag 
laws, 1205. 

of instruments affecting homesteads, 1242. 

of homestead declaration, 1262. 

of certificate of change of name in partnership. 2409. 

of certificate on formation of special partnership, 2480. 

of real mortgages, 2952. 

of personal mortgages, 2963. 

of assignment for benefit of creditors, 8458. 
aor, title of establishing the Civil Code, 1. 

how cited, 21. 
km OP Qon, injures no one 8526. 

See SuPBRHUMAN Cause. 
^OTlOir, commenced preyious to taking effect of Code, not affected, 6, 30l 

minor may enforce his rights by ciyil, 42. 

to affirm nnsolemniied marris^, 77. 

to obtain decree of nullity of marriage, 83. 

to obtain exclusive control of children, 199. 

for abuse of parental authority, 203. 

by supervisors, to recover for support of child, 205. 

to recover stoek sold to pay delinquent assessments, 847. 

to retain possession of property, <93, 810. 

to enforce easement, by whom maintainable, 809. 

for injury to inheritance, by whom maintainable, 926. 

to correct defect in eertincate of acknowledgment, 1292. 

to prove instrument for record, 1208. 

by creditor of mortgagor, 2068. 

relatinff to special partnership, special partner need not be pttty 

AdMDISTRATOS. See PxRSONAL REPRlSXKTATiyXS. 

Adoption, child may be adopted, 221. 

who may adopt, 222. 

consent of parents necessary, 228. 

consent of child's parents necessary. 221 

consent of child^hen necessary, 225 

proceedings on, 229. 

judge's o^er on, 227. 

effect of, 228. 

effect of, on former relations of child, 229. 

of Ulegitimate child, 280. 
inuurnT, divorce to be granted for, 92. 

defined, 98. 

legitimacy of issue of marriag* divorced on account of, 144-145 

disposition of community property on divorce for, 147. 
iDULTS, who are, 27. 

compensation for support of. child. 210. ^^ . 

iDVANOXM xiTT, what Is deemed, 13^7 uigitized by CjOOQ Ic 

effect of . 1809 ^ 



t96 INDEX. 

A4TBncement, effect of when heir adyanced to dies before teBtator f 

when deemed ademption, 1;^1. 

value of, how determined, 1398. 

constitutes part of distributiye share, 1395. 

when in excess or insufficient, effect of, 1396. 
Abtastage, unfair, when fraudulent, 1675. 

unfair, when evidence of undue influencejl575. 

trustee must not use influence to obtain, 2228, 2281. 

partner must not obtain, over copartners, 1411. 
Adtibsx Claim, depositary to give notice to depositor of, 1825. 

trustee to give notice to beneficiary of his acquisition of, 2 
Abtbkss Posskssion, owner of property in, may transfer his right, 1047 

property in, may be mortgaged, 2921. 
AtriBATiT, of oificers of corporations, on filing articles of incorporatioa 
295. 

of publication of notice of sale of delinquent stock, 348. 

of publication of notice of change of partnership name, 2471. 

of publication of notice of formation of special paitnershte 
2484. 

of truth of inventory to be made by assignor for benefit of cxed 
iters, 3462. 
UnoT. See AoxNT, 2295, 2299, 2300, 2307, 2308-2310, 2815-2318, 2842. 

2344^9, 2365, 235S. 
^eiNl, defined, ^6. 

must keep his principal informed, 2020. 

authority of limited. 2019. 

collecting, duty of, 2021. 

agent of not responsible to principal, 2022. 

who may appoint, 2296. 

special, defined, 2297^ 

general, definedj^97. 

actual, defined, 2299. 

ostensible, defined, 2300. 

authority of, 2304. 

authority of, may extend to what, 2305. 

has no authority to defraud principal, 2806. 

how derives his authority, 2307. ^^ 

consideration not necessary to creation of authority of, 2806 

authority of must be in writing, 2809. 

oral authority to, when sufficient, 2309. 

authority, how conferred on, by ratification, 2310. 

partial ratification of act of, when total, 2311. 

ratification of act of, when valid and when void, 2312. 

ratification of act of, not to prejudice third person. 2818. 

ratification of act of, may be rescinded, when, 2314. 

extent of authority of, '^Sib. 

actual authority of, 2316. 

ostensible authority of, 2317. 

implied authority of, 2319. 

effect of special restrictions on authority of, 2818. 

authority of, to disobey instructions, 2320. 

general authority limited by specific, 2321. 

general authority of, how limited, 2322. 

authority of, to sell pergonal property, effect of, 2828 

authority of, to sell real property, effect of, 2824. 

•uthority of, to sell, includes authority to receive pxtee. i 



INDEX. 407 

Agent represents principal, to what extent, f 2880. 

acts of, bind principal, when, 2831, 2883, 2887. 

deemed to have notice, of wliat, 2^2. 

how far principal is bound bj acts of, 2884. 

when principal exonerated by payment to, 2385. 

when person dealing with^ may set oif claim against, SSM 

instrument binding principal binds, 2887. 

principal responsible for negligence of, when, 2888. 

principal responsible for wrongful acts of, when, 28S9 

oblations of, as to warranty of authority, 2842. 

obligations of, as principal in certain cases, 2848. 

must surrender property to true owner, 2844. 

obligations of, when incapable of contracting,, 284& 

may del^^te power, when, 2849. 

responsible for sub-agent, when, 2860. 

when not responsible for S'lb-agent, 2861. 

authority of, when terminated, 2355. 

power of, how terminated, 2356. 

general partner is. for the firm, 2429. 

auctioneer as, 2862. 

factor as, 2367. 

sliipmaster as, 2878. 

partner in mines, authority as, 2519. 

ship's manager as, 2388. 

insurance by, how effected, 2589. 

indemnity extends to acts of, 2776. 

notice of dishonor, how given by, 8149. 

of insured, acts for insurer on abandonment, 2726. 

damages for breach of warranty of authority of, 8818. 
IfBimiNT, of separation, husband and wife may make, 159. 

consideration for such, 160. 

in indentures of apprenticeship, 272. 

to sell personal property, when title passes to buyer lander, 1140 

of sale not a revocation of will, 1801. 

what must be in writing, 1624. 

contract in writing may be altered by, 1698. 

for sale, what, 1726. 

to buy, defined, 1728. 

to sell or buy, defined, 1729 

to sell, defined, 1727. 

to sell, wha* may be subject of, 1780. 

to sell, real i^roperty, 1781, 1741. 

to sell real property, binds seller to insert certain corenanli 
1783. 

form of such covenants, 1734. 

to sell personal property, 1789. 

to sell real property, 1740. 

of sale, with warranty, entitles buyer to inspect goods, 178S. 

of sale may be rescinded foi breach of warranty. 1786. 

seamen not to be deprived of wages or lien by, 2052. 

with seamen, restrictions on, 2053. 

obligations of common carrier can be altered only by, 9174 

certain, with common carrier, void, 2175. 

effect of written, with common carrier, 3176. 

express, not necessary to create mining partnership, 251S 

not to transfer insured interest, when void, 2599 



198 INDEX 

Acreemeh >f indevnity, § 2772. 

to mrej real property, cUmagee for breaeh of, 8806. 

to irehJue real property, damages for breach of, 8807. 

to I ill penonal property, damages for breach of, 8808^8800. 

to r ^y personal property, damages for breach of, 3811. 
AoRicoLTUiUL Faib Cobpokatiohs. See Cobpokatioiis, 286, 620-622 
AaaicuLTuiUL Land, limitation on leaae of, 717. 
AusN, minon, apprentioeship of, 274. 

may hold property, 671. 

inheriting, when must claim or be barred, 672, 1404. 

resident, may talie by sueeession, 1404. 
AuiNAnoN, restraints on, when Toid, 711, 716. 

how long power of may be suspended, 716. 

disposition of income during suspension of power of, 788. 

of intermediate interest does not defeat future interest, 7^ 

suspension of power of, 770. 

suspension of power of, by trust, 771. 

See Grant; TaANsrsR. 
Alimony, when court may grant, 187-189. 

security for, 140. 

when may not be granted, 142. 

out of what property granted, 141. 
AlxmnoN, ownership of, 1014. 

JLLTSRATION, of Interests disposed of by will, when a rerooatioii of will 
1804. 

of interepta disposed ot by will, when does not rerokc will 
1303. 

of contract in writing, how made. 1698. 

of contract in duplicate, effect ox, 1701. 

of representation in insurance, 25i6. 

of thing covered by fire insurance, inereaaing risk, effect of 

of thing insured, not increasing risk, efltet of, 2764. 



of obli^tion exonerates guarantor, 2821. 
See CONTKACT, 1697, 1®^1700. 



AuxsNATiYR, future interest may be in, ( 

obligation, who has right of selection undw , 1448. 

obligation, right of selection under, how lost, 1448. 

obligation, selection under, how made, 1460. 

obligation, effect of nullity of one branch of, 1461. 

negotiable instrument may be made in, 8090. 
.UiBiaunT, in will, how construed, 1323. 

in contract, how construed, 1649. 
ANIMALS corpc rrations for insuring lives of domestic, may b« fonM^ 
288. 

corporations for improving breed of, may be formed, 286 

domestic, subject of oMmership, 655. 

wild, how far subject of ownership, 656. 

depofiitary of, must use what degree of care, 1884. 

rate of compensation of depositary of, 1863. 

borrower of, for use, must use great kindness, 1887 
IVNum, defined, 1357. 

owner of, may dispose of it, 868. 

when due, 1368. 
iffPOiinrinNT, of guardian by the court, 248-244. 

of gnarduui by the court supersedes parent, aOk^^^^i^ 

iJigitized by VjOOQIC 



INDBX. 4M 

Ippotntmtnt, no person guardian of «ttate wi&out, § 912. 

effect of, power of 781. 

of trustee, how made, 2287. 

of gucceesor to trustee, duty of trustee concerning, 2960. 
iPPOBTXOHMKHT, of burdeu of serritude on partition of dominant U/am 
ment, 807. 

of loBsee occasioned by collision of Teesels, 978. 

of consideration in case of preTention of performance, 1514 

of coyen&nts, 1467. 

of hire, ld36. 

of freightage, by contract, 2140-2141. 

of freightage, according to distance, 2142. 

of Uen, 29^. 

See HoMKSTKAD, 1249. 
IvpiiAiSKBS. See HomsTBAD, 1246, 1246, 1249-1262, 1268. 
iFPRSMTici. See Apprsntiobship, 264, 276. 
iPPUKTicxsHiP, who may enter into, 264. 

whoee consent necessary to, and how glTen, 266. 

consent to, to be in vrrlting, 266. 

executors may bind out to, 267. 

supervisors may bind out to, 268. 

town officers may bind out paupers to, 269. 

what must be stated in indenturee ot 2^0. 

conditions in indentures of, 271-272. 

deposit of indentures of, 2i8. 

of alien minors, how effected, 274-276. 

causes for annulling indenturee of, 276. 

See Act of April 8, 1876, Appendix, p. 487. 
AmoPUATiON, rights to water may be acquired by, 1410. 

such to be for useful purpose, 1411. 

priority of such establishes priority of right, 1414. 

notice of such, 1416. 

diligence in prosecuting such. 1416. 

of payments, by the debtor, 1479. 

of payments, by the creditor, 1479. 

of payments, by the law, 147». 
^fPUmTXKANOKS, defined, 662. 

oertain, deemed fixtures, 661. 

to land, what, 662. 

to ship, what, 961. 

pass, by transfer of land, 476, 1084, 8640. 
See Easxmbnts ; SE&vminB. 
laBiTBATiOM, partner has no power to submit partrership olalBf It 

agreement for, not specifically enforced, 8890. 
«RT. See CoRPORATioifS, 285, 286. 
iRTiCLBS OP Incorporation. See Corporations, 289-296, 867. 

certified copy of, prim&feuie evidence of facts therein, 297. 
issxssMBNTS. 0/ Corporations. See Corporations, 881-889, 841, &4f- 

847. 
issieNBB, of lessor, liability of, 822. 

For Benefit of Creditors. See Assignmbnt, 8460, 8467-8472. 
iimuiMXNT, non-negotiable eoniiact in writing may pass by, 1469 

of partnership property partner cannot make, 2480. 

of mortgage may be recorded, 2934. ^ i 

of mortgage, effect of recording, 2986 digitized by V^OOglC 



100 IKDKX. 

AMlgnawnt, of d«bt seeuivd by mortgage, eanlM the Mcnrity with 11 

general, by maker of n^^tUtble inatrament to Indoraer, ezeoMi 
notice of dishonor. 
¥m Benefit of Creditors. 

who may make, d44d. 

certain transfers not affected by proTiaioiis eonoeixiliig, 8461. 

what debts may be secured by, ^452. 

Toid against creditor, when, 9167, d4&9. 

must be in writing, S458. 

must be subscribed, 8468. 

must be acknowledged or prored, 8468. 

gives no rights (preater than debtor had, 8460. 

uiTentory to accompany, 8461. 

affidarit of truth of inyentory to be annexed to,'*8462. 

inyentory accompanying, must be filed where, 8468. 

must be recorded where, 2468-2464. 

Toid if not recorded, 2466. 

of real property, subject to certain proyiaiona, 8466 

assignee under, must gire bond, 8467. 

when power deyolves on assignee under, 8468. 

assignee under, may be required to account, 8469. 

compensation of assignee under, 8471. 

assignee not liable for acta in good faith, though void, 8472. 

property exempt from execution doea not paaa by, 8470. 

life insurances do not pass by, 8470. 

how cancelled or modified, 8473. 

partner has no authority to make, 2480. 
A8SI0N0R. . See Assioitmknt, 8468, 8461-8462, 8470. 
4aau&AK0B, executory contract for sale, binds s^er to inaert 
of further, 173a 

See Insurance. 
AaTLUM , who may be placed in lunatic, and how, 268. 

orphans in orphan, may be apprenticed, how, 266. 

corporations may be formed for maintenance of, 286. 
^TTOBNiT. See Atto&nst in Fact ; Power op Attorney. 
4TT0RNBT Qeneral, may inquire into affairs of corporations, 882. 

duty of, when alien heir does not claim inheritance, 1406. 
AnoRNST IN Fact, how must execute certain instruments, 1006. 

power of, how revoked, 1216. 

form of certificate of acknowledgment by, 1191. 
Auction. See Sale, 1792-1798. 

sale of delinquent stock to be by, 841. 

sale of pledged property to be by, 8006. 
AuonoNBER. See Sale, 1795, 1798. 

authority of, from seller, 2362. 

authority of, from bidder, 2368. 
Author, of product of the mind, exclusive owner thereof, 980. 

rights of subsequent, 984. 
iUTHORiTT, defined, 2816-231 1. 

construction of words giving Joint, 12. 

abuse of, renders contract voidable, 1666. 
Of Agent. See AGENT, 2304, 2306-2310, 2316-2826,2830,2881, 
2342,2849-2360,2865. i t i 

OfAwtioneer. See Auctioneer, 2302, 2368. ^ . 

O/Eeeeutor, uigitizedbyLjOOQle 

to appoint executor, void, 1872. ^ 



INDEX. 501 

IvnouTT — Of Factor. See Faotor, §§ 2368-2869. 
Q/" Parent. See Pabxnt, 203-204. 

Of Shipmaster. See Shipmastsb, 2374-2877, 8019 ; TROim, 2289- 
2286, 2287, 2288, 2261, 2282. 
Atibase, general, defined, 2148. 

general, how adjusted, 2162. 

general, owner of goods stowed on deck, when entitled to iMneAt 

of, 2154. 
general value, bow ascertained for^-urpose of, 2168 
^neral, marine insurer liable for, 2712, 2744. 
shipmaster has power to adjust, 2388. 
insurance free from, effect of, 2711. 

Bail, defined, 2780. 

how regulated, 2781. 
Bahkxe, quarterly statement by Act of April 1, 1876, Appendix, p. 484. 
Bahxino. See Corporations, 286, 821, 866. 

special partnership, cannot cari7 on, 2477. 
Bahx Nots, n^^tiable after payment, ^61. 

See GnxGK ; Nkootiablx Ikstruxxitt. 
Bastabb. See Illxgitdiati Child 
BxNxnaxAST. In Real Property y 

has no interest therein, when, 868. 

when may dispose of his interest, 863. 

when cannot dispose of his interest, 867. 
Of Trust. See Trustsk, 2218, 2222, 2280-2286, 2287, 2288, 2261 
2282 ; Trust ; Trusts in Rxal Propkrtt. 
BiHKfiT, consent of party entitled to, necessary to transfer of burden 
1457. 

Toluntary acceptance of, is assumption of, 1689. 

he who takes, must bear burden, 3521. 
BwiUHT. See Will, 1274-1276, 1282, 1802-1304, 1322, 1881, 1888, 1887 
1341. 

when does not lapse by death of legatee, 1810. 

to heirs, relatiyes, &c., effect of, Im4. 

how divested, 1342. 

conditional defined, 1846. 

conditional Tests, when, 1847. 

to several persons, effect of, 1360. 

what is ademption of, 1351. 

of income, when accrues, 1366. 

See Leoaot ; Will. 
Bn>»«R. See Auction : Auctionexr, 1794, 1797, 2862. 
Bill or Bxchanox, denned, 317L 

may rive name of drawee in case of need, 8172. 

may Be in a set, 8173. 

when must be in set, 3174. 

presentment of one of a set sufficient, 8176. 

where payable, 3176. 

drawer of, has same obligations. &e., as indonei, 8177 

days of grace not allowed on, 8l81. 

apparent maturity of, 8134. 

presumptive dishonor of, payable after fight, 8188. 
JUeeptance of 

how made, 3193. C c^c^n\o 

must be in writing 8194. ^9^ ^^^^ by V^OOg IC 



f02 



■L ev EzGHAirei — Aceeptetnee oft 

how made, by eoaaent of h<ddar, f 8185 
by refusal to return, 8195 
by separate instrument, 819A. 
promise to accept, when eqnlTalent lo, 8119 
may be cancelled, when. 8196. 
what is admitted by, 8199. 
agent for collection must prowni for, 2Q2L 
for honor, when allowed, 8208. 
for honor, holder not bound to recelTe, S30L 
for honor, how made, 8205. 
for honor, how enforced, 8206. 
for honor, notice of dishonor not ezensed by, 8 
Pmyment of 

for honor, how made, 8206. 
for honor, must be reeeiTed by holder, 820( 
FttunimetU of 

for acceptance, when made, 8185, 8189. 

for acceptance, by whom made, 8186. 

for acceptance to joint drawees, 8187. 

for acceptance to drawee in case of need, 3188 

for acceptance, when excused, 8218. 

for payment, where made, 8211-8212. 

for payment, effect of delay in. 821»4i214 



de^ed, 8224. 
Foreign^ 

defined, 8224. 

notice of dishonor of, how fij^ra, 8225 

protest of, by whom made. 3226. 

protest of, how made. 8227. 

protest of, where made, 8228. 

protest of, when made, 8229. 

protest of, when excused, 8280. 

notice of protest of, how given, 8281.^^^ 

notice of protest of, may be waived, 8282. 

how paid, for honor, 82B3. 

dama^ for dishonor of, 3234-8285. 

interest as damages for dishonor of, 8286. 

for dishonor of, how estimated in federal 

for dishonor of, how estimated in fordgn 

See Nbootiablx InsTsuxm. 
EiiJi or Lading, defined, 2126. 
negotiable, 2127-2128. 

effect of, on rights and duties of carrier, 2129. 
consignor entitled to, 2136. 
effect of refusal to give, § 2130. 
delivery to holder of, sufncie'nt, 2131. 

carrier may require surrtruder of, on delivery of goodiy Utt 
effect of accepting, from carrier, 2176. 
Boaani op Tradk. See Oorpokatioxs, 286. 
ioiin, n^otiable, remains so after dishonor, 3262. 

See NsQOTiABLK iNSTamaMT; SWJUMK^ i 

o 



INDSZ. mm 

iOBAOWKB ~ For Use, 

does not acquire title, S 1886. 

must ueie wh&t care, 1886. 

of animals, obligationn of^ 1887. 

must use what skill, 1888. 

must repair negligent injuries, 1889. 

may use thing, for what purpose, 1890. 

must not re-lend, 1891. 

must bear what expenses, 1892. 

when lender must indemnify, 1893-1894. 

must return thing borrowed without demand, 189ft. 

must return thing borrowed, where, 1896. 
for ExeJumge. 

acquires title, 1904. 

must bear all expenses, 1904. 

cannot be requind to return loan before what time, 1906 
0/ Money, 

must repay In current money, 1918 
See l4)AM. 
KorroMST, defined. 8017. 

extent of iusnrable interest of ship hypothecated by, 268 

owner may hypothecate upon, in any case^SOlS. 

shipmaster may hypothecate upon, when, S019-'8021. 

rate of interest upon, 8022. 

rights of lender upon, when not necessary, 8023. 

stipulation for personal liability under, Toid, 8024. 

loan upon, when due, 8025-3026. 

Uen of, bow lost, 8027. 

lien of, takes priority oTer other liens, when, 8028. 

priority of several liens of, 8029. 

See LuN ; Rksponssntia 
RouiiDABUS, by water, 880. 

by way, 881. 

coterminons owners bonnd to maintain, 841. 
Bbiiwx CoRPOBAnoNS. See Oorpo&atioms, 286, 628-690. 
Building Cobpobations. See Land and Buildino CIobpobatiovb 
BviLDiNOS, owner for life estate must keep in repair, 840. 
Bubdbn, consent of party entitled to benefit necessary to tnuurf ol 
1467. 

Toluntary acceptance of benefit is assumption of, 1688. 

he who takes benefit must bear, 8621. 
Bubdbn op Proop, where lies to show want of consideration in I 'm 

ment, 1616. 
IIUBiAL, right of may be held as an easement. 801. 

right of may be held as a servitude, o02. 
Busiirisf, right of transacting, on land, an easement, 801 

good will of, subject to ownership, 666, 9dS. 

good will of defined, 992. 

oontract not to pursue, how far Toid, 1673. 

Sneral partner must not en^^ige in separate, 2486 -2487. 
kbility of partner engaging in separate, 2488. 
days of, what are, 9. 
lom, when title to personal property passes to, 1140-11^ 
directions of, to be followed as to deliTery, 1767. 
implied warranty of seller, where goods are inacoestit U tf 



}'^'*^' ' ,^e- " ugitizedbyGoOQle 

when must pay price, 17M. ^ 



IT, when must remore thing honght, $ 1784. 
right of to Inspect warranted goooB, 1785. 
right of in case of breach of warranty, 1786. 
right of at auction sale, without reserre, 1796. 
by-bidding at auction, fraud against, 1797. 
Bt-iaws. See CoapoRATiOKS. 

Oaxoillation, of grant of real property does not rerest title, lOBB 

of will, when operates as reyocation, 1292. 

of will, proof of, how made. 1298. 

of written contract, effect of, 1699. 

of written instrument, may oe adjudged, when, 8412. 

of written instrument, void on its face, not allowed. dUS 

of written instrument, partial, may be adjudged, 8414. 

of acceptance by acceptor, when allowed, 819^. 
See Alteration. 
Capital See Partnibship, 2479, 2481, 2493, 2495. 
Capital Stock. See Corporations. 
Oars, degrees of, 16. 
Slight^ 

defined, 16. 

gratuitous depositary must use, 1846. 

gratuitous employee must use, 1975. 

^tuitous carrier of property must use, 2114. 
Ordtnary^ 

depositary for liire must use, 1852. 

hirer must use, 1928. 

employee for reward must use. 1978. 

Toluntary agent must use, 207o. 

tarustee must use, 2259. 

gratuitous carrier of persons must use, 2006. 

carrier of property for reward must use, 2U4. 
Oreatf 

borrower must use, 1886. 

employee for his own benefit must use, 1979. 

shipmaster must use, 2043. 

oaxxier of messages for reward must use, 2162. 
Utmost, I 

oarrier of persons for reward must use, 2100. I 

carrier of messages by telegraph must use, 2168. I 

Oarklessness. See Neguoencb. 
Oaroo, sacrifice may be made for safety of, 2148. 

such sacrifice must be borne ratably. 2151. 

how valued on general ayerage, 2163. 

shipmaster agent for owners of, 2375. 

ship's manager has not power to purchase, 2889. 

seaworthiness of sliip for purpose of insuring^ 2687. 

insurance on, when yoyage is broken up, 27w. 

shipmaster may sell, when, 2379. 

shipmaster may hypothecate, when, 2877. 8088. 

hypothecation of, under respondentia, 8036-8(X88. 

owner of, entitled to repayment from shipowner of amoiut p^ 
under respondentia, ^MO. 

See General Averaoe ; Bssponbrntia. 
lARitACE. See Carrier, 2085, 2096, 2100, 2114, 2161. 

different kinds of, 2088. nr^r^rs\r> 

shipmaster may make contract for 2876^9' '^^^ by V^OOg iL 



IKDSX. 501 

, defined, $ 2086. 

marine, 2087. 

inland, 2087. 

gratuitous, obligationi of, 209^2090. 

has innurable interest, 2548. 
0/ Persons^ 

gratuitous, obligations of, 2096. 

for reward, must use utmost care, 2100. 

for reward, must provide safe Tebicles, 2101. 

for reward, must not oyerload rebiales, 2102, 2186. 

for reward, must afford reasonable accommodationi 2100L 

for reward, must trarel without delay, 2104. 
O/ Property, 

for reward, must use ordinary care, 2114. 

gratuitous, must use slight care, 2114. 

must obey directions, 2fL6. 

duties of, in case of conflicting orders, 2116. 

must not stow frebpht on deck, 2117. 

must not deriate, 2117. 

must not yitiate insurance on frei^t. 2117. 

must deliyer freight, where, 2118-2119. 

must giye notice of arrival, when, 2120. 

may terminate liability, how, 2121. 

must giye bills of lading, 2126. 

may deliyer freight to holder of bill of lading, 2180. 

when may demand surrender of bill of lading, 218L 

may throw freight oyerboard, when, 2148. 

notice must be giyen to, to effect stoppage in tianrit, 801f 
Wnightoft of. 

defined, 2110. 

when payable, 2196. 

consignor, when liable for, 2187. 

consignee, when liable for, 2188. 

on what chargeable, 2189. 

when apportioned, 2140-2142. 

in case of extra performanoe, 2148. 

lien for, 2144. 
OfMusages. 

must deliyer, how, 2161. 

degree of care and diligence required of, 2162. 
Cammon^ 

defined, 2168. 

must accept what is offered. 2169. 

must not giye preference, 2l70 

may give preference to the goyemm«nt, 9171. 

must start on schedule time, 2170, 2172. 

compensation of, 2178. 

obligations of, how limited, 2174. 

cannot be relleyed from certain liabilities, 2176. 

effect of written contract of ,2176. 

when not liable for loss, 2177. 

mortgage of property of, where to be recorded, 29il 
tJ(f PtrsonSf 

must carry luggage, 2180. 

liability of, for luggage. 2181. ^ ^ ^ ^ CoooIp 

Bust deUy^ lugg4J7wiien. 8183. ^^ "^^ by v^OOgie 



MS IHPSX. 

Oabbur — Of PenonSf 

muit proTide sofllcient aooommodatioi § 21flik 

must proTide Tebicles, 2184. 

regulations for conduotimr business, 2186. 

may demand faxje, when, 2187. 

may eject passenger for non-p^rment, 2188. 

eannot demand payment after ejection, 2190. 

has lien on luggage, 2191. 

breach of obligations to receiTe passengers, 8815. 



Of Property t 

liability of, for luggage, 21 
liability of, for lo8S,^94. 



for luggage, 2182 



Umitation of liability without notice, 2200. 

liability of, for deUy, 2196. 

liability of, for negligence, 2195. 

marine, liabiUty of , ZL97-2196. 

duties of, in respect to freight going beyond its rorita^ SVl 

must gire eridence of cause of IoMjWjSL 

obligations of, in other respects, 2208. 

when may sell perishable property, 220i. 

breach of obligation, to receiTe goods, 8S16. 
Of HbsfogeSf 

by telegraph, must transmit, in what order, 2207. 

in other cases, must transmit^in what order, 2208. 

liability for improper d«lay, 2207. 
OnmiBT CoRPO&ATiONS. See Corporatioks, 286, 608-^i. 
OBtTXFiQATX of person solemnising marriage, 78, 74. 

tor QonMnuing corporate existence of corporation, 40&. 

of shipmaster, as to exertion of seamen to sare ship, 2060. 

of officer taking proof of instruments, 1188-1200. 

of proof of loss under insurance, when dispensed with, 9687. 

of discharge of mortgage to be med with recorder, 298»-aMO 

on indentures of apprenticeship. 276. 

false, by officer of corporation, 816. 
O/* Aeknowledpnent. See Agknowukoomxrt, 1189, 1190-1192, 1901 
Of Ifuorporatton^ 

from secretary of state, 296. 

prerequisites to issidng, 294. 
Of Marriage. See Marriage, 78>74. 
Arttunkip. See PARnrsRsmp, 2464, 2471, 2474-2480, 2S06. 
Of Stock. See Stock, 828. 824, 670. 

certain, transferable, 676. 
iKARAOTXR. right of protection from inlury to, 48. 

defamation of, how effected, 44. 

threats of injury to, render contract Toidable, 1667-1579 
Obartir. See Articles or Inoorporatiom. 
CWARTERiR, has insurable interest, 2665. 

master or part owner of ship mav be, 1959. 
Obabzxr Party, defined and regulated, 1959. 

shipmaster may enter into, in foreign port, 2876 

ship's manager may enter into, 2888. 

certain insurable interest exists under, 26E'3L 
OsAmL Ihtsrxst, defined, 766 

See PSRSONAI PROPBIVf 

Chattel MoRTQAtfx. See Mortoass. ^ , 

Mattel Real, defined, 676. u gtized by CoOg Ic 



INDEX. S07 

^battel Real, when estate for life of third pemon becomes, § 766 

Umitation of, 770. 
Bhxgx defined, 3264. 

A negotiable instrument, 9095. 

effect of delay in presentment of, 8255. 

title of indorsee to, without notice of dishonor, 8255. 
Child, unborn, for what purpose deemed existing, 29. 

of annulled marriage, how may succeed, 84. 

of annulled marriage, custody of, 85. 

of divorced parents, legitimacy of, 144-145. 

of divorced parents, custody of, 188. 

of divorced parents, support of, 139. 

liability of community property for support, &c., of, 148. 

parents, on separating, may make provision for support oi 
169. 

legitimacy of, bom In wedlock, 193. 

legitimacy of, bom out of wedlock, 194. 

cuHtody of legitimate, 197. 

custody of illegitimate, 200. 

husband not bound to support wife's, by former marriage, 200. 

compennation and support of adult, SUO. 

wages of minor, 212. 

action for exclusive control of, 214. 

legitimized by marriage of parents, 215. 

right of posthumous to take property, 898. 

birth of posthumous, defeats certain future interests, 789. 

duress of, avoids contract of parent, when, 1569-1570. 

See Adoption ; Illeoitixatb Child : Minor ; Parbnt, 49, 191^ 
196, 198-199, 201-205, 207-208, 211, 213 ; Will, 1304-1809 
Cbildrxn, term Includes what, 14. 

abandonment of. See Act March 7, 1874, Appendix, p. 478 
See Child. 
Ohuboh, right of a seat In, may be held as an easement, 801. 

right of a seat in, may be held as a servitude, 802. 

eorporations for maintenance of, may be formed, 286. 
CiBOUMYKNTiON, contract obtained through, cannot be specifically en- 
forced, 8391. 

See DsoxiT ; Frauv 
Om, use of land of, not £^nted to corporation. 475. 

lease of lots in, limitation on, 18. 
Clxic, county, duty of regarding marriage licenses, 69. 

county, duty of where acknowledgment is taken by Justice of 
peace, 1194. 

petition for appraisement of homestead to be filed with coupty 
1247. 

articles of incorporation to be filed with, 296. 

eertificate of formation of special partnership to be filed with 
county, 2480. 

notice of dissolution of special partnership to be filed ^tk 
county, 2509. 

county, must keep register of partnership names, 2470. 

of court of record may take acknowledgment, 1181. 
9b»i, title of, 1. 

when takes effect, 2. 

not retronctivj' unless so declared, 8 C^ ] 

eonKtrUCtioil of , 4-5. Digitized by VjOOQIC 



MM IKDBX. 

Oode, aifeets no action oonunonoed or right aoemed b«fon Ita Ukim 
effect. § 6. 

effect of on existing statutes, 20. 

how cited, 21. 
CoDica. See Will. 14, 1287, 130B. 
COLL£CTiON, ageut for, duties of, 2021. 

partner acting in liquidation may make, 2461. 

effect of warranty of, 2^M). 
COLLEGBS. See Corporations, 286, and Act of January 8, 1872, Ap 

peudix, p. 465. 
COLUSiON . See N A no ation , 970-972. 

loss b.v, how apportioned, 973. 
Collusion, divorce munt be denied on showing, HI. 

defined, 114. 

preBuniption of, established by lapse of time, 126. 
CouMRRCiAL I'aper. See Negotiabue Ikstrumsmt. 
Commissioner op Dpeds. See Acknowledomemts, 1182-1183. 
CoMMiXTiON, owuertship of things formed by, 1025-1027, 1029-1090. 

See Confusion of Qoons. 
C0MM9H Carrier. See Carrier, Common. 

Common Law, rule of construction of statutes in derogation of, mot a^ 
piicahle to Code, 4. 

Code considered continuation of, when, 6. 
COMMUVlOATiON, privileged, 47. 

private, in writing, ownership of, 986. 

Bee Contract, 1666, 1681-1683; Insukahox, 2663-2684, 2668. S670 
2647, 2666. 

of acceptance of offer to guaranty, necessary, 2796. 
See Concbalmbntj Rkprbsxxtatioh 
OOMMTNiTT Propbrtt, defined, 164, 687. 

when court may resort to, for alimony, 141 

power of husband over, 172. 

disposition of, on divorce, 146-148. 

distribution of, on death of wife, 1401. 

distribution of, on death of husband, 1402. 
SOHPRKSATiON. See Kmplotbb, 1478, 1498, 2002, 2008. 

of appraisers of homestead. 1268. 

may cure delay, when, 1492. 

for errors of description, agreement for, does not prajudlos rigfc 
to rescind, when, 1690. 

of depositary for hire, 1868. 

of finder, 1867. 

for loan, called interest, 1916. 

borrower entitled to certain, 1892, 1894. 

in caw contract of service is continued beyond two jean, 1980 

managing owner of ship not entitled to, 2072 

of voluntary depositary. 2078. 

o! common carrier, 2173. 

of trustees, 2273-2274. 

partner not entitled to, 2413. 

lienor not entitled to, 2892. 

the relief generally given by law, 8276. 

for mistake, when allowed on specific performance, 8891 

for partial failure to perform on specific performanoe, 3HM 

may be required on rescission, when, 3408. 

9i assignee for benefit of creditors, 3471. GoOqIc 
See Consideration ; Salart ; Waosi. ^ 



INDEX. 009 

VOMTOum Ihterkst. S<^ IinmgsT (or Mohit). 
CoxpirrATioN of time, § 10, 14. 

of term of iiuopenftloii of power of alienation, 912. 
of period of minority. 26. 
COKOiALMEirT of fact8 iii certain cases renders condonation Toid, 120. 
by trustee, when fraudulent, 2228, 2284. 
partner must not obtain advantage by, 2411. 
In Insuranee. See Tnsuramob, 2561-2666, 2668-2570. 
In Marine Insuranee. See iNSumANCi, 2669-2672. 
In Fire Insurance. See Insueanok, 2762. 
C«Ri»lTiON8, of ownership, 707. 

kinds of, of ownership, 708 

of ownership, when void, 709. 

nominal, in direction for execution of power, may be dinvgaidei 

906. 
restnining marriage, when void, 710. 
restraining alienation, when void, 711. 
grant may be depo!<ited with third person, to be delirered on p^ 

formance of, 1067. 
delivery of grant to grantee on, Toid. 1056. 
tenant without notice not liable for breach of, of lease, 1111. 
offer of performance must be free from what, 1494. 
of proposal, must be fulfilled by acceptance, 1682. 
of proposal, pertormance of, is acceptance, 1584. 
failure to perform revokes proposal, 1687. 
written, governing auction sale, not to be modified orally, 1791 
See Appksntickship, 271-272 ; Obuoations, 1434, 1440-1441. 
decedent, 

what may depend on performance of, 1498. 

grant on, only an executory contract, 1110. 

in will, what, 1346. 

in will, effect of, 1347. 

in will, when deemed performed, 1348. 

See Obligations, 1480, 1439. 
Suksequentf 

condonation implies certain, 117. 

right of n^entry for breach of, transferable, 1046. 

groperty to be reconveyed on non-performance of, 1109. 
I will, what, 1349 
in obligations, what, § 1488. 
Ooneurrentf 
in obligations, what, 1437. 
what may depend on performance of, 1^6. 
A>in>ITi02f AL, delivery cannot be made, 1056. 

win, when may be denied probate, 1281. 
See Request, 1345, 1347 ; Odlioation, 1434, 1439-1440, IHl 
devise or bequest, what, 1346. 
devise or bequest, when vests, 1847. 
obligation, liability of guarantor on, 2808. 

offer of performance, when valid, 1494. i 

See Conditions. I 

SMnMNATiox, desertion cured by soliciting, 102. ■ 

refusal of, is desertion by the party refusing, 108. 
iivorce must be denied on shewing, 111. 
defined, 115. .ur^r»oalf> 

.-equisites of, 116. a "^^ by V^OOgie 

33 



110 INDEX. 

Ooadonation, implies a condition subseqiieDt, § 117. 

evidence of, ll8. 

when can be made^llQ. 

when made Toid, 120. 

how revoked, 121. 

bar to recriminatorj defence, when, 123. 

presumption of, in certain case, 125. 
JOMnNKMEXT, unlawful or fraudulent, aroids contraet, 1569. 

niapter of ship may subject seamen to, 2037. 

master of ship may subject passengers to, 2038. 
See Duress. 
Confusion or Goods, ownership of thingH formed by, 1029-1030, 1032. 

See COMMIXTION. 

CONViTANCE, divorce must be denied on showing, 111. 

defined, 112. 

how manifested, 113. 

presumption of, in certain cases, 125. 

contract obtained through, voidable, 1689. 
0OB»I5T. See Adoption, 223-226; Contract, 1565-1573, 1575-1584 
1689 ; Desertion, 99. 101 ; Husband; Husband and Wipe, leC 
162; Marrijlob, 55-82. 

corrupt, 112. 

corrupt, how manifested, 113. 

written, of mother, necessary to transfer custody of child, 197. 

for apprenticeship of child, 265-266. 

of landlord necessary io attornment to sfcranger by tenant 

. 1948. 

xty entitled to benefit necessary to transfer of banlsn 



°'i^'- 



thing obtained without, of owner, to be restored, 1712. 

of depositor necessary to use of deposit by depositary, 1836 

of principal, necessary to release of factor, 2030. 

voluntary interference with property without, 2078. 

of beneficiary necessary to allow trustee to hold adverse interest 

2233. 
mutual, necessary to create trust, 2251. 
not necessary to rescission of ratification, 2314. 
of aJ, necessary to creation of partnership, 2397. 
unanimous, necessary to admission of new partner, 2397. 
n'ot necessary to create guaranty, 2788. 
Ioksidkration. See COntraot, 160&-1613, 1697. 
valuable, defined, 14. 

minor must restore, on disafflrmance of contract. So. 
mutual consent to separation sufiicieut, 160. 
effect of transfer where paid by third party, 853. 
no: nec-essary to validity of voluntary transfer, 1040, 1148. 
.vritten instrument prima facie imports, 1614. 
on whom falls the burden of proof to show want of safflcienl 

1616. 
old obligation extingui-»hed by new, 1541. 
failure of, when ground for rescission, 1689. 
not necessary to create agency, 2308. 
necessary to guaranty, when, 2792. 
need not be expressed in written guaranty, 2798. 
presumption of, in negotiable instruments, 3104. i 

effect of want of, in negotiable instruments, 81^. -^^^^ 



IKDSX. 51. 

fOMMiTM. Se« Cabeur, §§ 2110, 2116, 2118-2122, 2188, 2141. 2176. 

consl^or may stop goods in transit on inBolyency of, oOTO. 

what is insolvency of, 3077. 
CoKsiGNoa. See Oarkiee, 2110, 2116-2117, 2137 2176. 

when may stop goods in transit, 3076. 
OoNSTRUCTioN. See Words, 12-13. 

of the Code, 4-6. 

of termd, 14. 

of certain leasing powers, 925. 

See Interpretation. 
CONSTEUCTivE, notire defined, 18-19. 

delivery, 1059. 

fraud defined, 1573. 
DOHTiKUiNG Guaranty. See Goarantt, 2814-2816 

letter of credit, when deemed, 2864. 
OOVTEACT, defined, 1549. 

minor, cannot make, 38. 

minor may make, subject to his power of disafBrmanee, M. 

of minor, when and how disafllrmed, 35. 

minor or insane person cannot disaffirm, for necessariei, 86 

when pemon of uosound mind may make, 39. 

when person of unsound mind cannot make, 40. 

person entirely without understanding cannot make, 88. 

marriage a personal relation arising out of ei\ il, 66. 

to marry, how pnrties may be released from, 62. 

husband and wife may make, 158. 

husband and wife cannot alter their legal relation by oi 
cept, 160. 

for payment of money wife cannot make, 167. 

marriage settlement, how executed, 178. 

marriage settlement must be acknowledged and recorded, 17V. 

effect of recording or non recording of marriage Mttlemonti 180 

minor may make marriage settlement, 181. 

of apprenticeship of alion minor, 274. 

executed, voluntary transfer is, 1040. 

executed, defined, 1661. 

executory, defined, 1661. 

executory, grant on condition precedent is, 1110. 

lien may be created by, 2884. 

non-negotiable written, transferable, 1469. 

novation a, 1532. 

for benefit of third person may be enforced by him, when, 1591 

with seamen, restrictions on, 2053. 

wliat, not allowed in negotiable instrument, 8098. 

essential elements of, 1550. 

when presumed to be joint and several, 1669-1660. 

for sale of personal property. 1739. 

lor sale of real property, 1740. 

of insurance, right to rescind, 2583. 

for forfeiture of property subject to a lien, void, 2889. 

in restraint of right of redemption from lien, void, 2S9lb» 
ilarties to^ 

who may be, 1556. 

when minors. &o., may be, 1551 

must be oapaole of identification , 1668. r^ ^ ^ ^ T ^ 

OMSetUtO, ugitizedbyV^OOgie 

essential elements of, 1665. 



tit INDEX. 

^^gtmACt — Offueni tt — when not free, not Told but Toidabto, f )MB 

ftpparentf when not free» 1667. 

when deemed to be obtained through fraud, lD»* 

duress in obtaining, defined, 1569. 

menace in obtaining, defined, 1570. 

fraud in obtaining, defined, 1571. 

actual fraud in obtaining, defined, 1672. 

constructiTe fraud in obtaining, defined, 167«. 

undue influence in obtaining, defined, 1676. 

mistake in obtaining, defined, 1676. 

mistake of fact in obtaining, defined, 1577. 

mistake of law in obtaining, defined, 1578. 

mistake of foreign law in obtaining, defined, 1679. 

when deemed mutual, 1580. 

when deemed communicated, 1681-1682. 

when deemed complete, 1583. 

proposal of, when deemed accepted, 1684. 

acceptance of proposal must be absolute, 1685. 

revocation of proposal, 1586. 

rerocation, how made, 1587- 

Toidable, may be ratified, 1688. 

may be rescinded, 1689. 

acceptance of benefit, when deemed, 1689. 
Otjeet of^ 

defined, 1595. ,^^ 

must be lawful, possible, and ascertainable, 1696. 

when deemed possible, 1597. 

when illegality of, renders contract wholly toW, lIM 

when illegality of, renders contract partly Toid 16M. 
Consideration^ 

good, defined, 1605. 

how far moral obligation is good, 1606. 

must be lawful, 1607. 

effect of illegality of, 1608. 

may be executed or executory, 1609. 

executory need not l)e specified. 1610. 

executory, how ascertained, 1611. 

effect of impossibility of ascertaining, 1612-16IS 

contract may be altered without new, 1697. 
Creation o/, 

by express words, 1620. 

by implication, 1621. 

orally, 1622. 

by writing, 162a-1624. 

by writing, 8upew>ede8 oral negotiations 1621 
^•j writing, when takes effect, 16£3. 

by writing, delivery necesaaryto, 1627. 

provisions abolishing seals, 1629. 
itterpretcUion o/, 

to be uniform, 1686. 

to effectuate mutual intention, 1686. 

to ascertain intention, 1637. 

to be governed by language used, 1688. 

•o be eovemed by written words, 1688. 

exception iu oases of fraud, 1640. 

eniixe eontraot to be conj^idered in, 16^itized by CjOOQ Ic 



INDEX. 511 

OomACT— Interpretation of^ 

seyeral contracts to be taken together is, 1 1643L 

to be favorable to its yalidity. 1648. 

according to ordinary sense of words, 1644. 

technical words in, 1645. 

wliat law goyerns, 1646. 

by surrounding circumstances, 1647. 

subject matter to be considered in. 1647. 

to be restrained by its object, 1648. 

uncertainty in to be construed agains^ whei 1649, 16M 

general intent to prevail in, 1650. 

original and written parts in, to prevail, 1661. 

repugnances in, 1652. 

inconsistent words to be rejected in, 1653. 

what stipulations implied in, 1655. 

incidents to contract implied in, 1656. 

in respect to time of performance, 1657. 
OWatr/ii/, 

defined, 1667. 

certain contracts declared, 1668. 

fixing damages, 1670. 

exception, 1671. 

restraining trade, when, 1678. 

restraining trade, when not, 1674-1676. 

restraining marriage, 1676 
Jbtinction of. 

in general, 1682. 

by rescission, 1688. 

by rescission, in what ea8e«, 1689. 

by rescission, how effected, 1691. 

certain stipulations do not prevent rescission, 1680. 

by alteration of verbal contract, 1697-1688. 

by cancellation and destruction, 1699. 

by unauthorised alteration, 1700. 
Ck^KTUBiTTioif. See Insuraxcb, 2621, 2642, 2745. 

joint debtor may require, when, 1432. 

release of joint debtors does not affect rights of othen to, IHft 

to general average loss, 2152. 

between co-sureties, 2848. 
OORTBOLLSK, dutj of , where property escheats to the State, 1406. 

corporations to transmit selection of right of way to, 478 
CONTERSiOM, directed by will, when takes effect, 1338. 

extinction of lien by, 2910. 

of personal property, damages for wrongful, 8336-8388. 
COMTKTANCi, minor may make, subject to disaffirmance, 84. 

when person of unsound mind may make, 89. 

when person of unsound mind cannot make, 40. 

by person who hai) changed name, see Act ol Mxiteh U, 1974 
Appendix, p. 479. 

by married woman, 1187. 

defined, 1215. 

See Grant; Travbfbb 
COPABTNKRS. See Partjikr ; Parimirsbip 
loaroRATioNS, defined, 288. 

public and private distingnishnd, 284 

private, tit w formod, 286. og^^^, ,y GoOgk 



tl4 IXI.KX. 

Oorporatioi