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THE   CIVIL   CODE. 


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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. 


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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 


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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 


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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 


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THE  CIVIL  CODE 


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STATE  OF  CALIFORNIA. 


IN  FOUB  DIVISION& 


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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 

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|§  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. 


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DIVISION  FIRST. 


Past  I    PERSONS,  §§  25-42. 

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


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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. 


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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  nfteeii  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 

AUTHKMTICATIOK  OF  MARRfACIfc 

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  yioiwrtj. 

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, 
0  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. 


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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 

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{§  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 


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§§  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.] 


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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 


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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. 

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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. 


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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. 

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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 


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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. 


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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. 


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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. 


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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. 


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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^ 


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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.' 


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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. 


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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«  eniowit 
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. 


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•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. 


^ 


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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. 


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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. 


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§§  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." 


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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.) 


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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. 


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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 


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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.  .• 

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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.  ^        , 

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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. 


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|§  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. 


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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.] 


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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 

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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. 

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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  boagdtug«himst'S,   when    A    ^ 

O  Vs/'    moptffftgea  to  sccnro  the- pngohdR^  money  of  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. 

0 

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. 


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§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. 


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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. 


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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." 


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APPENDIX. 


Digitized  by  VjOOQIC 


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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&. 


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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  misdemeanor. 

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.] 


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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.] 


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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. 

Oorporatioiu,  how  may  continue  their  existence  uuier  this  Codo,  §  267 
certain,  not  affected  by  the  Code,  288. 

what  are  private,  284. 

for  what  purpom  may  be  formed.  lfiB6. 

name  of  instrument  creating,  28d. 

iirticles  of  Incorporation,  what  to  contain,  290. 

certain,  to  state  what  additional  facts  in  articles,  291. 

number  and  qualiflcai;ion«  of  corporatora,  262.  ^ 

prerequisites  to  filing  articles  of  incorporation  of  certain,  294- 
295. 

articles  of  incorporation  of,   where  to  be  filed  and  certiflcati 
thereon,  296. 

term  of  existence,  296. 

must  file  articles  in  county  where  property  is  situated,  299. 

how  may  change  place  of  business,  821  a. 

misnomer  does  not  invalidate  instrument,  367. 

dealers  with,  cannot  question  its  existencei  858. 

may  acquire  real  estate,  266.  ^  ^ 

may  acquire  property  under  title  on  "  Eminent  Domain,'^  861 . 

franchise  may  be  sold  under  execution,  388. 

duties  of  purchaser  of  franchise,  389-390. 

sale  of  franchise  not  to  affect  powers  or  liabilities  of,  391. 

may  redeem  franchise,  392.  , 

where  proceedings  unier  execution  may  be  had  against,  898 

how  may  extend  their  corporate  existence,  401. 

cannot  take  by  will,  1275. 

acknowledgment  of  instrument  for  recorded  by,  1161. 

requisites  of  such,  1185. 

certificate  of  such  acknowledgment  by,  1190 
JUsessment  of  Stocky 

directors  may  levy,  331. 

limit  of,  332-838. 

order  for  levying,  to  contain  what,  834. 

notice  of,  and  its  form,  335. 

publication  and  service  of  notice  of,  336. 

delinquent  notice,  and  its  form  and  contents,  887-888 

publication  of  delinquent  notice,  839. 

sale  of  stock  to  pay,  341. 

not  to  be  invalidated,  346. 

action  to  recover  stock  sold  for  delinquent,  347. 
By-Laws, 

adoption  of,  when,  how,  and  by  whom  made,  301. 

to  be  adopted  at  first  meeting,  306. 

to  be  rticorded,  304. 

how  amended,  304. 

may  be  mude  for  certain  purposes,  803. 

may  provide  for  annual  election  of  directors,  802.  • 
Debts,  .    _rt* 

not  to  be  created  beyond  actual  subscribed  stock,  9M 

vihen  ofllcer  becomes  liable  for,  316. 

liability  of  stockholder  for,  32i. 
Otnctors, 

election  of,  how,  :102. 

election  of,  after  incorporation,  806. 

how  many,  and  qualifications  of,  305.  — • 

election  of,  how,  when,  and  by  whom,  806-30?  i 

•cpuolsation  of  board  of,  808.  gtized  by\jOOgle 


INDEX.  911 

VOKFORATIONS  —  Directors  —  may  postpone  election,  when,  §  8M. 

must  make  dividends  how^  309. 

remoTal  of,  310. 

contract  to  relieve  from  liability  roid,  827. 

liability  of,  in  certain  cases,  to  creditors,  809. 

Tacanoy  in  office  of,  how  filled,  805. 

may  leTy  assessments,  831. 

on  dissolution,  to  be  trustees  for  creditors,  400. 
DMdendSf 

how  made,  and  how  not  to  be  nuuie,  809. 

on  shares  of  married  women,  how  paid,  825. 
DiMtohUion, 

where  prorided  for,  899. 

by  forfeiture  for  non-user,  858. 

directors  to  be  trustees  for  creditors  upon,  400. 
suctions^ 

of  directors,  802. 

must  be  by  ballot,  &c.,  807. 

majority  of  stock  to  be  represented  at,  812. 

complaints  and  q%u)  tvarrarUos,  <&c.,  regarding,  815. 

may  be  postponed,  318. 
Sxamincuion  o/, 

how  and  by  whom  made,  382. 

made  by  Ic^slature,  883. 
MtetingSf 

when  first  to  be  called,  301. 

time,  manner,  and  place  of,  to  be  specified  in  by-laws,  808. 

officers  to  be  removed  only  at  general,  310. 

by-laws  onl>  to  be  amended  at  special,  304. 

justice  of  peace  may  order,  311. 

by  consent  to  be  valid,  317. 

majority  must  be  present  at,  312. 

proceedings  at  to  hv  binding,  818. 

for  extension  and  continuation  of  corporate  existence,  401-^8. 

error  in,  in  articles  of  incorporation,  not  to  invalidate  inslrv 
ment,  357. 

to  be  stated  in  articles  of  incorporation,  290. 
Officers^ 

by-laws  to  regulate  compensation  and  duties  of,  808. 

directors  to  elect  president,  treasurer,  and  secretary,  806. 

proceedings  for  removal  of,  310. 

liability  of,  making  false  certificate,  &c.,  816. 

married  women  may  become,  286. 

oath  of,  on  filing  articles  of  incorporation,  295. 

removal  of.  Act  of  March  21, 18<2.    Appendix,  p.  460. 
Organization^ 

dissolution  for  the  want  of,  858. 

within  what  time  to  be  effected,  353 
JWer*, 

defined  and  prescribed,  354. 

limitation  of,  355. 

banking  expressly  prohibited,  866. 

wlien  forfeited  for  non-user,  358. 

to  increase  or  diminish  capital  stock,  859.  r^ ^^^U 

iwl  property,  what  may  acquire  aad  hold  ^889^^  ^y  ^^OOgLL 


j1%  index. 

OoiMKATioira  —  Powfrs  —  not  to  b«  affected  by  Bale  of  feaachlM,  |  flL 
when  inay.  consolidate,  861. 

how  kept  and  what  to  contain,  877. 

"  Btock  and  transfer  "  book,  378. 
Stock, 

amount  to  be  subscribed  before  incorporating,  298. 

oath  of  officer  to  subHcription  of,  2d5. 

majority  of  subscribed,  necessary  to  adoption  of  by-lam,  SQL 

majority  of  subscribed,  necessary  to  election,  307. 

two  thirds  of  subscribed,  necessary  to  amend  by-lawi,  804. 

two  thirds  of  subticribed,  necessary  to  removal  of  offioen,  810. 

majority  of  subscribed,  constitutes  quorum,  312. 

how  may  be  represented,  313. 

dividends  not  to  be  made  from  capital.  809. 

debts  not  to  be  incurred  beyond  subscribed,  309. 

capital  must  not  be  increased  or  diminished  except,  809  VB, 

on  dissolution,  may  be  divided,  309. 

certificates  of,  how  issued,  323. 

transfer  of  sliares  of,  824 ;  and  tax  on  p.  77  b. 

transfer  of  shares  of,  held  by  married  wuoien,  825. 

transfer  of  shares  of,  of  non-residents,  326. 

sale  of  delinquent,  341. 

delinquent  stock,  publication  of  noticio  of  sale,  84S. 

when  acquires  jurisdiction  over  certain,  dM. 

may  buy  its  own,  when,  343. 

disposition  of,  where  corporation  is  purchaser,  844. 

action  for  recovery  of,  sold  for  delinquent  asaessmentf ,  847. 
Stockholders     See  Stock,  301,  310,  326. 

liability  of,  for  debts  of  corporation,  822. 

defined.  298. 
Agricultitrcu  Fair, 

may  be  formed,  286. 

may  acquire  and  hold  how  much  real  estate,  620. 

shall  not  contract  debts  in  excess  of  amount  on  hand,  azMpI 
621. 

not  for  profit,  622. 

may  fix  fee,  &c.,  for  membership,  622. 

may  be  formed,  286. 

married  women  may  become  corporators,  &c.,  of,  286. 
Banks, 

must  keep  certain  books,  321. 

must  make  quarterly  statements.    Appendix,  p.  484. 

certain,  may  elect  to  have  a  capital  stock,  800. 
Beneficial  and  Relief.    See  Act  of  March  28,  1874.   Appendix,  p.  479 
Benevolent, 

may  be  formed,  286. 

married  women  may  become  corporators,  &o^  of.  286. 

may  incorporate  colleges.  Act  January  8, 1872.  Appendix,  p.4M 
Boards  of  Trade, 

jDAj  be  formed,  286. 
Bridge,  Ferry,  Wharf.  Chute,  and  Pier, 

may  be  formed,  286. 

to  obtain  license  from  board  of  supervisors,  628. 

te  what  eontlngenoies  corporate  existence  oeaiM,  639i 


iHDEx.  sn 

IdBPOBATioirs  —  Bridge^  Ferry,  Wkaif,  ChtUe,  and  Pier, 

annual  report  of,  §  590. 

damages  for  failing  to  report,  680. 

this  title  applies  to  bridge,  &c.,  owned  by  natural  persons,  581. 
Building.    See  Land  and  Building. 
Business.    See  Act  of  March  28, 1872.    Appendix,  p.  470. 
CancU.    See  Water  and  (Janal.    Also  Act  of  March  30, 1872,    Ap* 

pendiz,  p.  471. 
Cemetery. 

may  be  formed,  286. 

how  much  land  may  be  held,  and  how  disposed  of  ,608 

who  are  members  eligible  to  vote  and  hold  office,  609. 

may  hold  what  amount  of  personal  property,  610. 

such  surplus,  how  disposed  of,  610. 

may  issue  bonds  to  pay  for  grounds,  611. 

proceeds,  how  disposed  of,  611. 

may  take  and  hold  property  or  use  income  thereof,  how,  03. 

interments  in  lot  and  effect  thereof.  613. 

transfer  of  right  only  made,  how,  613. 

lot  owners  previous  to  purchase  to  be  membera,  614. 
t^iambers  of  Commerce , 

may  be  formed,  286. 
Cbmm«rcia/, 

may  be  formed,  286. 
Bock.  See  Bbidob,  &c. 
SdueationaX. 

may  be  formed,  286. 

married  women  may  become  corporators,  4&o.,  of,  286. 
Ferry.    See  Bbidok,  Ferrt,  &Xi. 

foreign  must  designate  resident  upon  whom  prooesi  mj  kt 
serred.    See  Act  of  April  1, 1872.    AppendU,  p.  478. 

may  be  formed,  286. 

to  obtain  privilege  from  city  or  town,  628. 
to  supply  gas  on  written  application,  629. 
damages  for  refusal,  629. 
when  may  refuse  to  supply,  630. 
agent  of,  may  inspect  meters,  631. 
when  persons  neglect  to  pay,  gas  may  be  shut  off,  682. 
Homestead, 

may  be  formed,  286. 
time  of  corporate  existence,  557. 
by-laws  to  specify,  what,  568. 

by-laws  to  be  furnished  to  members  on  demand,  558. 
advertisement  and  sale  of  delinquent  and  forfeited  shares,  668 
may  borrow  and  loan  funds,  and  for  what  time,  660. 
minors  and  married  women  may  hold  stociL,  661. 
limitation  of  speculation  in  lauds,  662. 
forfeiture  for  speculation  beyond  certain  extent,  662 
when  tts  corporate  existence  terminates,  663. 
payment  of  premiums,  664. 
annual  report,  665. 
publication,  where  made.  666w 

oiay  extend  corporate  exlstenoe     Act  of  Maxeh  28, 1874.   AppMi 
dto.  p.  479.  r^  I 

4A^'^  ugitizedbyCjOOgle 

any  be  formed,  286. 


&8  IHDBX. 

OoirOKATiOKf  —  J&inmmM, 

corporation  may  be  formed  for,  ^  2W. 

subscription  to  capital  stock,  414. 

purchase  and  conveyance  of  real  estate,  415. 

policies,  how  issued  and  by  whom  signed.  41<l» 

dividends,  of  what,  and  when  declared,  4i7. 

directors  liable  for  loss  on,  in  certain  eases,  418. 

capital  stock,  419,  420. 

payment  of  subscription,  424. 

certificate  of,  of  paid  up  capital  stock  to  be  filed,  4SS. 

proper^  which  may  te  insured,  426. 

funds  may  be  invested,  hoWj427. 

rate  of  risk,  limitation  of,  428. 

amounts  to  be  reserved  before  making  dividends,  ^d^ASl. 
Mmtual  Lif0f  Healthy  and  Accident, 

capital  stock,  487. 

guazantee  fund,  437. 

of  what  guarantee  fund  shall  consist,  438. 

what  it  constitutes,  439. 

deficiency  in  capital  stock,  439. 

declaration  of  fixed  capital  to  be  filed,  440. 

guarantee  notes  and  interest,  how  disposed  of,  441 

taisured  to  be  entitled  to  vote,  442. 

may  invest  in  what  securities,  444. 

number  of  directors  may  be  altered,  how,  448. 

limitation  to  the  holding  of  stock,  446. 

premiums,  how  payable,  446. 

to  furnish  insurance  commissioner  certain  facts,  447. 

no  stamp  required  on  contract  of  accident  insurance,  418. 

▼aluation  of  policies,  4^. 

policy  to  contain  evidence  that  it  was  issued  in  this  State,  1 

penalty  for  non-compliance,  450. 

payment  and  cancellation  of  policy,  451 
Lawd  and  Building^ 

may  be  formed,  286. 

how  organized,  689. 

may  borrow  money,  640. 

powers  and  object  of,  641. 

may  insure  the  lives  of  members  and  debtora,  642. 

may  own  what  real  estate,  643. 

by-laws  may  provide,  what,  644. 

annual  report,  645- 

consolidation  and  transfer  of  business,  647. 
Laundry. 

may  be  formed,  286. 
Library  f 

may  be  formed,  286. 
Literary, 

may  be  formed,  286. 

married  women  may  become  corporators,  &o.,  of  SBIk 
Manufaetwing, 

may  be  formed,  286. 
Mtechanics^  Institute, 

may  be  formed,  286. 
MereantiU, 

M^  be  formed,  288.  r^^^^T^ 

Digitized  by  VjOOQIc 


INDEX.  SI9 

MiMBiTiORi  —  iHinm;,— may  be  formed,  §  286. 

diiectoTB  to  file  certificate  oi  \t  hat,  where,  685. 
transfer  agencieB,  586. 
stock  issued  at  transfer  agencies,  587. 

books  and  mine  kept  open  for  inspection  of  stockhoIdiexB,  m 
491, 492.  *~  t«- 

statements  to  be  made,  pp.  491,  492. 

safety  shaft  for  miners.    Act  March  16, 1872     Appendix,  p.  467 
Pier.    See  Bridoc,  F£Krt,  &c. 
Private^ 

may  be  formed,  §  286. 
MmOnad, 

may  he  formed,  286. 

articles  of  inoorporatlon  must  state  what,  in  addition,  291. 

prerequisites  to  filing  articles  of  incorporation,  294-296. 

directors  to  be  elected,  when,  454- 

additional  proyision  in  assessment  and  transfer  of  stock,  466. 

may  borrow  money  and  issue  bonds,  456. 

to  provide  finking  fund  to  pay  hoods,  457. 

capital  stock  to  be  fixed,  458. 

certificate  of  payment  of  fixed  capital  stock,  459. 

enumeration  of  powers,  465. 

map  and  profile  to  be  filed,  466. 

may  change  line  of,  467. 

forfeiture  of  franchise,  468.    . 

erosslngs  and  intersections,  469. 

condemnation,  469. 

not  to  use  publio  streets,  t&c.,  except,  470. 

not  to  charge  fare  to  and  from  points  in  a  city,  471. 

when  crossing  highways,  &c.,  how  acquires  right  of  waj,  iTS 

may  consolidate,  473. 

proceedings  to  cotisolidate,  473. 

State  lands  granted  for  use  of,  474. 

such  grant  not  to  embrace  town  lots,  476 

certain  fixtures  may  be  taken  from  the  realty,  476 

lands  of  to  revert  to  State,  when,  477. 

requisites  on  selection  of  right  of  way,  478 

check  to  be  afllxed  to  all  baggajge,  479. 

damage  for  refusing  so  to  do,  479. 

annual  report  to  be  yerified,  480. 

form  of  report,  480. 

duties  of,  481. 

to  pay  damages  for  refusing  transportation,  482. 

to  furnish  accommodations  for  passengers,  488. 

to  post  r^ful^^ion^?  ^^^ 

not  responsible  for  injuries  incurred  by  violating  rules,  484. 

to  pay  damages,  485. 

not  liable  in  certain  cases,  486. 

may  recover  damages,  when,  486. 

regulations  of  trains,  486. 

penalty  for  violating  such,  486. 

conductor  may  eject  passengers  when,  487. 

oflieers  to  wear  badge,  488. 

rates  of  charges,  489. 

IT  tickets,  how  isfued,  and  to  be  good  for  fix  r      '*^ 


•hitter  of  rails  to  be  use^'  491.  ^^"^'  '^  GoOglc 


(JO  IKDBX. 

OOBvcKATioiri  —  Street t—m&y  be  formed,  §  286.  ,  -    »_  ^ 

artlclefl  of  incorporation  to  state  what  additionaltooli,  WL 
prereqniBites  to  filing  articles  of  incorporatioa,  i»4 
authority  to  lay  track,  how  obtained,  497. 
restrictions  as  regards  granting  right  of  way,  4S«. 
two  may  use  same  street,  when,  499. 
rates  of  fare,  601. 

construction  and  requisites  of  conveyances,  501. 
rate  of  speed,  501.  .        ,        j      u       ena 

must  commence  construction  of  road,  wnen,  ova. 
effect  of  faiUng  so  to  do,  502. 
cities  and  towns  may  make  rules  to  govern,  cwo. 
penalty  for  overcharging,  504.       ,,  ^  ^  --- 
to  provide  and  furnish  passenger  tickets,  oOo 
penalty,  506.  ,       ^^ 

trial,  proof,  and  limitation,  506. 
city  or  town  to  reserve  certain  rights,  807. 
license  to  be  paid,  508. 
track  for  grading  purposes  509. 
general  provisions  applicable,  610-011. 
Prismoidalf 

may  be  used  as  street  railways,  471. 

conditions  of  construction,  498. 
Rdistous,  Social,  o^Benevolent 

iiay  be  formed,  286 ;  how  controlled,  290. 

married  women  may  become  corporators,  ««.,  oi,  S». 

how  formed.  598.  ^^,^.      ,  .    .     eai, 

articles  of  incorporation  to  state  additional  facts,  W». 

may  hold  what  amount  of  property,  595.  w   bm 

MaFons,  Odd  Fellows,  and  Pioneers  may  hold,  how  mnob,  Hi 

annual  report,  597.  ^  .      _.,, 

may,  by  order  of  court,  sell  or  mortgage  property,  o5« 

proceedings  thereon,  598. 

may  provide  what  in  their  by-laws,  o** 

members  admitted  after  incorp<iration,  600. 

membership  not  transferable,  601. 
Roadt 

may  be  formed,  286.  ,    ,     ,^..       ,  .    .     ,^„ 

articles  of  incorporation  must  state  what  additional  faets,  SM 

prerequisites  to  filing  articles  of  incorporation,  294. 
Savings  and  Loan, 

may  be  formed,  286. 

may  loan  money,  on  what  terms,  671. 

capital  stock  and  rights  and  privileges  thereof,  5ia. 

dividends  to  be  from  surplus,  578. 

to  contract  no  liability  except  for  deposits,  678. 

property  which  may  bo  owned  by,  and  disposal  of  such,  67^ 

restrictions  on  purchasers,  674. 

married  women  and  minors  may  own  stock  In,  5i6. 

may  issue  transferable  certificates  of  deposit,  576. 

special  certificates,  676. 

to  provide  reserve  fund  for  payment  of  losses,  577. 

parohibition  on  officer  of,  and  what  vacates  his  office,  578. 

eonstruction  of  phrase,  "  create  debts,"  579. 

See  Act  of  February  21 ,  1872.    Appendix,  p.  46S 
SeeBuiaious,  Social,  and  B«w«voi.ikt.QqqqIp 

o 


INDEX.  ftSl 

90BroiUTiovs  —  Stage,  ^JDAj  be  formed,  f  286. 
Stock  Raising^ 

maj  be  formed,  286. 
Street  KaitroofJs.    See  Railroads. 
Tele^aph, 

may  be  formed,  286. 

articles  of  incorporation  nrast  state  what  additional  facts,  291. 

prerequisites  to  filing  ar'^icles  of  incorporation,  284. 

right  of  way  along  water,  roads,  and  highways,  686. 

liability  for  injuring  telegraph  property,  637. 

liability  for  malicious  injury  to  property,  688. 

conditions  on  which  damages  to  sub-aqueous  cable  maj  b«  i*> 

covered,  689. 
dnty  to  send  dispatch,  640. 
rates  of  charges  to  be  fixed  and  published,  642. 
Tkeatret 

may  be  formed,  286. 
Wagon  Roadf 

may  be  formed,  286. 

articles  of  incorporation  must  state  what  additional  faotf ,  9BL 
prerequisites  to  filing  articles  of  incorporation,  294. 
three  commissioners  to  act  with  surreyors,  612. 
commissioners,  how  appointed,  612. 

surrey  and  map  to  be  filed  and  approted  by  superrlson,  61S. 
tolls,  &o.,  to  be  coUected,  614. 
penalty  for  taking  unlawful  tolls,  614. 
no  toll  to  be  charged  on  public  highways,  616. 
rates  of  toll  to  be  posted  over  gate,  616. 
toll  gatherer  may  detain  person  until  toll  paid,  617. 
toll  gatherer  not  to  detain  person  unnecessarily,  618. 
penalty  for  avoiding  tolls,  619. 
penalty  for  trespass  on  property  of,  620. 
when  capital  is  repaid,  tolls  to  be  reduced,  621. 
may  mortgage  and  hypothecate  property,  622. 
this  title  to  apply  to  roads  owned  by  natural  persons,  6S8. 
Water  and  Ckmal, 

may  be  formed,  286. 

may  obtain  contract  to  supply  city  or  town,  648. 
duties  of,  649. 

rates  to  be  fixed  by  commissioners,  649. 
right  of  way.  660. 

to  build  and  keep  bridges  in  repair,  66L 
right  to  water,  a  perpetual  easement,  662. 
Wharf.    See  BaiiKii ;  Ferry,  &c. 
Corporators.    See  Corporations,  286,  292. 
0OST,  of  action  for  divorce,  137. 

of  appraisement  of  homestead,  how  paid,  1269. 

of  transportation  of  personal  property  to  place  of  deliytxy,  17M 

depositor  must  indemnify  depositary  for  certain,  1S88. 

borrower  to  bear  certain,  18KJ. 

hirer  to  bear  certain,  1966. 

▼oluntary  depositary  may  deduct  for  certain.  2078. 

trustee  entitled  to  repayment  for  certain,  2S78. 

partner  to  be  indemnified  for  certain,  2412. 

lasiirer  liable  for  certain,  2706,  2748.  . 

ugitized  by  Google 


0(Mt,  indemultj  against,  f  2778. 

Oo-SuKKTisa.    Bee  SUKKTT,  2818-2819. 

Oo-TiNANTS.    See  Tina.nt. 

OotsuoKOiTS  OwNSBS,  rights  of  to  lateral  and  subjacent  sappofi,  I 

rights  of  to  line  trees.  881. 

mutual  obligations  of,  841. 

See  Owner,  832,  811. 
Oo-TRunn.    See  Trustkx,  2289,  2268. 
COQNTT  Clebk.    See  Clerk. 
OMERvr  Judge,  proceedings  before,  for  adoption  of  ehild,  226. 

duty  of,  in  such  case,  227. 

dutj  of,  on  examination  of  insane  person,  258. 

application  to  for  appraisement  when  execution  ieam 
homestead,  1246. 

duty  of,  on  homestead  petition,  1249. 

duty  of.  on  return  of  appraisers,  1253, 1254, 1258. 

bond  of  assignee  for  benefit  of  creditors  to  be  approred  by,  M8T 

may  require  assignee  to  account,  when,  3468. 
See  Court  ;  Distriot  Judge  ;  Judge. 
OoovfT  IUoordxr.    See  Recorder. 
OOUBT,  to  whom  must  award  custody  of  child  of  annulled  marriage,  tt. 

where  dlTorce  denied,  may  grant  relief  for  wife,  186-137. 

may  award  custody  of  child,  188. 

may  allow  wife  alimony,  when,  139. 

may  require  security  for  alimony,  140. 

shc^l  resort  to  what  property  in  proTidlng  for  wife,  141 

when  may  withhold  allowance,  142. 

to  maice  order  for  division  of  property  on  divorce,  146. 

to  determine  legitimacy  of  child,  when,  145. 

may  direct  allowance  for  support  of  child,  201. 

may  award  exclusive  control  of  child  to  either  parent,  cm  ptopm 
showing,  199. 

appointment  of  guardian  by,  243-244. 

jurisdiction  of,  appointiDg  guardian,  245. 

to  be  guided  by  what  rules,  in  appointing  guardian,  246. 

guardian  under  direction  of,  251. 

may  allow  appropriation  out  of  testamentary  accumulation,  738 

to  settle  controversy  between  ship  owners,  964. 

attornment  of  tenant  to  stranger  by  judgment  of,  valid,  1948 

when  trustor,  2252. 

how,  may  allow  satisfaction  of  trustee's  adverse  trust,  2268. 

discretionary  power  of  trustee  controlled  by,  2269. 

may  reduce  rate  of  interest  on  bottomry,  when,  3022,  80S9. 
COURTBST,  estate  by,  not  allowed,  173. 
POVEVANTS,  none  implied  in  any  grant,  except,  1113. 

when,  run  with  the  land,  14Q0. 

what,  run  with  the  land,  1461-1463. 

what,  run  with  the  land,  when  assigns  are  named,  146A- 

who  are  bound  by,  1465. 

who  are  not  bound  by,  1466. 

apportionment  of,  14o7. 

for  quiet  possession  impUed  in  hiring  of  property,  1927, 19(i 

authority  to  agent  to  sell  and  convey  includes,  SSKii. 

what  required  by  executory  contract  of  sale,  li99- 

-*-« 1  for  breach  of  certain,  8304. 

Digitized  by  VjOOQIC 


9EID1T,  Mdes  on  by  ihetor,  f  2028. 

to  agent  exonerates  principal,  when,  2385. 

agent  accepting  personal,  liable  as  principaLffi48. 

auctioneer  not  to  give,  except  when  U8uaJL2882 

&ctor  may  give,  except  when  unusual,  2368. 

of  ship  owner,  master  may  borrow  on.  2374. 

ship's  manager  cannot  borrow  on,  238v. 
See  CuDiTOE. 
Obisitob,  defined,  14. 

trusts  for  benefit  of,  may  be  created,  867 

trust  fund,  how  far  liable  to,  859. 

trust,  when  absolute,  in  favor  of  subsequent,  809. 

I^t  in  Tiew  of  death  to  be  treated  as  legacy,  as  r^pards.  1168. 

transfer  of  property  for  benefit  of,  to  be  recorded.  1164. 

appraisement  of  homestead  on  Terified  petition  of  Judgment,  12li 

vhen  to  pay  expenses  o'f  appraisement  of  homestead,  1259. 

eojapetent  witness  to  will,  1281. 

acceptance  by,  necessary  to  satisfaction,  1473. 

performance  of  obligation  to  one  of  several  joint, sufflcient,  147& 

performance  in  manner  directed  by,  sufficient,  1476. 

application  of  performance  by,  1479. 

offer  of  performance  must  b^  made  to,  1488. 

offer  of  performance  may  be  made  at  place  appointed  by,  1499 

offer  of  performance  must  be  made  so  as  to  benefit,  1498.  , 

must  give  receipt  on  payment,  1499. 

must  state  objections  to  offer,  1501. 

title  to  thing  offered  passes  to,  when,  1502. 

obligation  of,  as  to  thing  offered,  1506. 

performance  excused  if  prevented  by,  1511. 

effect  of  prevention,  ^.,  of  performance  by.  1512-1618. 

effect  of  refusal  by,  to  accept  performance,  1516. 

acceptance  of  accord  by,  is  satisfaction,  1523. 

acceptance  of  part  performance,  when  satisfaction,  1524. 

novation  may  be  made  by  substituting  a  new  for  an  old,  hmm 
1531. 

may  rescind  novation,  when,  1534. 

release  by,  how  made,  1541. 

release  by,  effect  of,  1542. 

partner  cannot  make  assignment  of  partnership  property,  in  tmil 
for  benefit  of,  2430. 

liability  of  partner  after  dissolution  to,  2453. 

of  special  partnership,  special  partner  may  be,  2491 

special  partner  postponed  to  every  other,  2491. 

ipecial  partner,  when  liable  as  general  partner  to,  2602. 

preference  given  to,  in  insolvency,  void,  2496. 

guarantor  liable  to,  when,  2807. 

guarantor  exonerated  by  certain  deoliugs  between  delnor  aM 

guarantor  partially  exonerated  by  partial  payment  to,  1_ 
guarantor  not  exonerated  by  voidable  promise  of,  2820. 
ifuarantor  not  exonerated  by  mere  delay  of,  2823. 
guarantor  not  exonerated  by  discharge  of  debtor  without  aet  o^ 

2825. 
foarantor  with  indemnity,  when  not  exonerated  2824. 
■nrety  liable  only  an  rooh,  notwithstanding  reoorery  of  jvdff 

■Mt  by,  2888  ^     ^  ^  Google 


5S4  XITDVX. 

Ondltor,  surety  exxmemted  by  hijiuioiis  aet  or  omunon  of,  $  2M0. 

surety  exonerated  bj  refusal  of  creditor  to  sue,  when,  284ft. 

surety  may  enforce  remedies  of,  when,  2845. 

surety  endtled  to  securities  held  by,  when,  2849. 

entitled  to  benefit  of  surety -s  securities,  2854. 

lien  Toid  against,  when,  2913. 

mortgage  of  personal  property  when  roid  against,  2957. 

of  mortgagor,  remedy  of,  29w. 

of  mortgagee,  remedy  of,  2968. 

contracts  of  debtor  ralid  against,  when,  8431. 

debtor  may  prefer,  when,  3432,  3458. 

must  resort  to  different  funds,  in  what  order,  2899. 

certain  transfers,  &c.,  of  debtor  Toid  against,  848&-8440. 

can  aToid  act  of  debtor,  when,  3441. 

transfer  without  Talue,  not  necessarily  Toid  against,  844I2L 

assignment  for  benefit  of,  3449. 
■    assignment  Toid  against,  when,  3457. 

may  require  assignee  to  account,  8469. 

See  Assignment  ;  Dbbtor  ;  iNCUMBiLLiroKS. 
ClOPf,  right  of  tenant  for  years  or  at  will  to  harvest,  819. 

growing,  subject  of  mortgage,  2966, 2972. 
CmiLTT,  extreme,  ground  for  divorce,  92. 

defined,  94. 

in  case  husband  or  wife  leave  on  account  of,  who  ecoDiiiltf 
sertion,  96. 

disposition  of  common  property  in  divorces  granted  for,  147. 

ground  for  annulling  indenture  of  apprenticeship,  276. 
OOIVODT,  of  children  of  annulled  marriages,  86. 

of  children  of  divorced  marriages,  138. 

of  legitimate  child,  197. 

of  Ulegitimate  child,  200. 

of  child,  parent  may  relinquish,  211. 

parents  living  separate,  neither  have  superior  righ*  to,  of 

OirnoMART,  defined,  14. 

DiAMASXS,  minors  and  persons  of  unsound  mind,  not  liable  in,  4L 
defined,  3281. 

railroad  corporations  liable  for  certain,  486. 
when  owner  of  ship  cannot  sue  for,  for  injuries  arising  from«oI 

lision,971. 
wilful  trespasser  liable  for,  1033. 
contract  fixing,  void,  1670. 
may  be  liquidated,  when,  1671. 

when  depositors  must  indemnify  depositary  for  certain,  1888. 
liability  of  depositary  for  certain,  1836. 
liability  of  finder  of  lost  property  for,  1865 
liability  of  lender  to  borrow  for  certain,  1892. 
indemnity  against,  2778. 
allowed  for  refusing  to  acknowledge  satisfaction  of  morl 

allowed  on  dishonor  of  foreign  bill,  3234,  3237. 

may  cover  future  loss,  when,  3283. 

Interest  by  way  of.  3287. 

Interest,  damages  bear,  when,  8287. 

■-' )  allowed  for  breach  of  obligation  other  «»«^"  i 


INDBX.  615 

|iMiiafe0.  Intarwt  allowed  for  f«^ud,  maliee.  Ae^^f  8S88. 

^tereet  agreed  upon  governs  rate  of,  8288. 

interest,  acceptance  of,  waiTes  principal,  8290. 

exemplary,  when  allowed,  8294. 

mnst  be  clearly  ascertainable,  8901. 

for  payment  of  money,  3802. 

for  breach  of  coTenant  of  "  seizin,"  8804. 

for  breach  of  covenant  of  "  warranty,"  8804. 

for  breach  of  covenant  of  "  right  to  convey,"  8804. 

for  breach  of  covenant  of  "  quiet  enjoyment,"  8804. 

for  breach  of  covenant  "  against  incumbrances,"  8804. 

for  breach  of  agr«<»ment  to  convey  real  property,  8306. 

for  breach  of  agreement  to  purchase  real  property ,  3307^^ 

for  breach  of  agreement  to  sell  personal  property,  8808-^8809. 

for  breach  of  agreement  to  buy  personal  property,  8811. 

for  breach  of  agreement  to  pay  for  personal  property  ^8810. 

for  breach  of  warranty  of  title  to  personal  property,  8312. 

for  breach  of  warranty  of  quality  of  personal  property,  881S. 

for  breach  of  carrier's  obligation  to  accept  freight,  &c.,  8815. 

for  breach  of  carrier's  obligation  to  deliver  freight,  &C;j831i8. 

for  breach  of  carrier's  obligation  to  deliver  messages,  2Si09. 

for  breach  of  warranty  of  agent's  authority,  3818. 

for  breach  of  promise  of  mairiage,  3319. 

for  wrongs  in  general,  8333. 

for  wron^ul  occupation  of  real  property,  8384. 

for  holding  over  real  property,  8835. 

for  conversion  of  personal  properl 

foi  conversion  in  favor  of  lienor,  i 

for  ceduction,  3330. 

for  Injuries  to  animals,  3840,  8341. 

tor  tenant's  failure  to  quit  after  notice,  3344. 

lor  tenant  holding  over,  3345. 

for  irjaiies  to  trees,  &c.,  8346. 

for  injuries  inflicted  in  duel,  3347,  8348. 

ralue  of  property,  how  estimated  in  assessing  in  favor  of  8elki( 
3853. 

ralue  of  property,  how  estimated  in  asseseiug  in  favor  of  buyer 
8854. 

value  of  property,  peculiar,  when  allowed  as,  3365. 

ralue  of  iustiument  In  writing,  how  estimated  in  assessing,  886S 

to  be  reasonable,  8358. 

nominal,  33t30. 

for  delay,  must  be  paid  on  redemption  from  lien,  2905. 

difficulty  of  ascei'taininfr,  ground  fur  specific  relief,  3380,  8884. 
VaU  if  delivery  of  grant,  presumption  of,  1055. 

not  necessary,  in  negotiable  instrument,  8091. 
Pats,  «rhat,  are  holidays,  7-8. 

what,  are  business,  9. 

what,  counted  in  computing  time.  10. 

fractions  of,  when  disregarded,  "A, 

of  grace,  not  allowed,  8181. 
taAlB,  M  minor,  porsonal  representatives  may  disaf&rm  Us  conferael  OBa 
86. 

dissolvai  ma-Mage,  90.  i 

€f  nat^%  iM^ing  child  unprovided  for,  efFect  of,  306  JQlC 

•<Joiftt|iMax£ian,eirectof,2&3.  ^ 

34 


ftS6  INDEX. 

(Mth,  wlihout  h«lra,  fto.,  deflmed.  ft  1071. 
gift  lu  view  of,  defined,  1149. 
gift,  when  presumed  to  be  in  flew  of,  Ufib 
gift  in  Tiew  of,  reTocation  of,  1151. 
gift  in  view  of,  effect  of  will  upon,  1153. 
gift  in  Tiew  of,  when  treated  m  a  legacy,  1168. 
of  husband  or  wife,  effect  on  homestead  propert/,  1206. 
of  deyisee  or  iMatee  before  testator,  effect  of,  on  tefltameaten 

disposition.  mO,  1S48. 
of  derisee  before  testator  does  not  affect  interests  in  remalndflr 

1844. 
distribution  of  common  property  on,  of  wife,  1401. 
distribution  of  common  property  on,  of  husbimd,  1402. 
of  heir  advanced  to,  before  that  of  devisor,  1399. 
in  case  of,  of  seaman,  who  entitled  to  his  wages,  2002. 
of  maker  of  instrument  bearing  nominal  date,  does  not  faxvali 

date  It,  8094. 
notice  of  dishonor  given  in  ignorance  of,  of  Indorser,  valid,  8146 
NBf.    See  Corporations,  809,  816,  822 ;  Husband,  168, 170-171 :  Pav 

NSBSHiP,  2405,  2461,  2501. 
Included  in  word  "  incumbrances,"  1114. 
homestead  liable  for  certain.  1241. 

property  of  intestate,  how  disposed  of  in  payment  of,  1368. 
property  of  testator,  how  dispoaed  of  in  payment  of,  1368, 
legacies,  how  charged  with,  1860-1361. 
liability  of  beneficiaries  for  testator^s.  1877. 
how  extinguished  by  offer  of  payment,  1600 
accord  of  liquidated,  1524. 
agreement  to  answer  for,  of  another,  1624. 
pledgee  cannot  sell  certain  pledged  evidences  of.  8006. 
DsjiTOR     See  CRSDiToa,  1541, 1542, 8481, 8432,  8441,  84^9 
.aeflned,  14. 

performance  must  be  made  by  or  for,  1478. 
performance  by  one  of  several  joint,  1474. 
effect  of  directions  to,  as  to  performance,  by  aeditora,  1476 
application  of  general  performance  by,  1479. 
offer  of  performance  must  be  made  by  or  for,  1487. 
rights  of,  upon  prevention  of  performance,  1512, 1514. 
may  require  receipt,  upon  payment,  1499. 
novation  may  be  made  by  substituting  a  new  for  an  old  one 

how,  1531. 
Joint,  release  of  several,  1548. 
fraudulent  misrepresentation  of,  as  to  value  of  pledge,  effect  of 

2999. 
iDsolvent,  may  assign  for  benefit  of  creditors,  when,  8449. 
insolvent,  defined,  8450. 

See  AssiONmHT. 
DxoxiT,  renders  contract  voidable,  1567. 

an  essential  element  of  fraud,  1572. 
when  actionable,  1709-1710. 
upon  the  public,  1711. 

See  CoNOBALKBNT ;  Fraud  ;  MiSKXPRXSKRTATioir. 
Dmlaration.    See  Homxstxad,  1248,  1244,  1268,  1265-1269:  MABiua 

.^ 76-78 ;  Trust  :  Trustm,  870,  2258,  2258. 

9m»,  owMnhiii  of  Utle,  894.  r-  i 

8m  GftASf.        gitized  by  V^OOgle 


IKDSZ.  5Sl 

HrAMAHOir,  rlffht  of  proteedon  from,  f  48. 

how  effected,  44. 
DiTAULT,  divorce  not  to  be  granted  by,  180. 

collision  from  breach  of  rules  of  narigation  to  implj  wilful.  971 

agreement  to  answer  for,  of  another,  must  be  in  writing,  Wm. 
.  See  Neolisbnoi. 
IteraoT,  in  execution  of  power,  remedies  of  purchaser,  915.  ' 

in  certificate  of  acknowledgment,  action  to  remedy,  1202. 

in  description  in  will,  effect  of,  1840. 

implied  warranty  of  manufacturer  against  latent,  1769. 

depositor  must  indemnify  depositary  damages  arising  ont  of,  of 
deposit,  1883. 

lender  must  indemnify  borrower  for  damages  arising  out  of,  ti 
thing  lent,  1893. 

in  notice  of  loss  under  insurance  how  waived,  2685. 
PjUJkT,  showing  reasonable  grounds  for,  rebuts  presumption  arising  from 
lapse  of  time.  126. 

on  part  of  creditor  does  not  discharge  guarantor,  2825. 

ia  performance  may  be  compensated  for,  when,  1492. 

how  excused,  1511. 

carrier  of  persons  must  travel  without  unreasonable,  2104. 

notice  of  loss  under  insurance  to  be  given  without,  2638. 

in  giving  notice  of  loss,  how  waived,  2636. 

deemed  deviation,  when,  2694. 

in  presentment  or  notice  of  dishonor  of  negotiable  instrum«il 
how  excused,  3158. 

in  presentment  of  bill  of  exchange,  effect  of,  8189. 

In  presentment  of  bill  of  exchange,  how  excused.  3219. 

in  presentment  of  promissory  note,  effect  of,  3248. 

in  presentment  of  check,  effect  of,  8255. 

in  protest,  how  excused,  3280. 
DlunsT.    See  DiPOSiTAKt   1822-1824,  1827  *  Freight,  2118,  2119, 
2181. 

deemed  the  time  of  creation  of  interest,  &e.,  749.  " 

of  gift  necessary  to  its  validity,  1147. 

of  contract  in  writing,  provisions  applicable  to,  1626. 

of  goods  sold,  when  to  be  made,  1753. 

of  goods  sold,  where  to  be  made,  1754. 

of  goods  sold,  expense  of,  by  whom  borne,  1755. 

of  goods  sold,  notice  of  election  as  to  mode  of,  1756. 

of  goods  sold,  buyer's  directions  to  be  followed,  1757. 

of  goods  sold,  w^hen  to  be  made,  1758. 

thing  bought,  to  be  paid  for  on,  1784. 

essential  in  pledge,  2988. 

See  GRANT,  1054-1057,  1059-1060. 
itaMiVD,  when  restoration  of  thing  wrongfully  taken  to  be  upon,  171f 

goods  sold  to  be  delivered  upon,  1753. 

thing  d<*posited  must  be  delivered  on,  1822. 

thing  deposited  need  not  be  delivered  without,  1823. 

thing  lent  must  be  returned  without,  when,  lo95. 

tiling  lent  need  not  be  returned  uules.«  on,  when,  1896. 

employee  must  render  account  witho'  t,  1986. 

employee,  when  not  bound  to  deliver  ."ithout,  1987 

servant  lo  deliver  over  without,  2014. 

Agent  to  deliver  to  third  person  onj  when,  2844. 

1  guarantor,  unnecessary,  2S0«.     ,,3^,3^  ^y GoOglc 


(26  INDEX. 

pCBUuui  of  performanoa  on  pledgor  miut  be  made  before  Mde  of 

of  performance,  how  waived,  8004. 

of  payment  of  negotiable  instrument,  when  neoenaiy,  818Q.  ' 
EtaPOUT.    See  DiPOsiTAftT,  1814-1815, 1846-1847, 1851-1856, 1^,  186A. 

of  money  offered  in  payment  of  debt,  how  made,  1500. 

kinds  of,  18ia^ 

involuntary,  ia  gratuitous,  1845. 
For  Exchange. 

relations  of  parties  to,  1878. 
For  Keeping. 

defined,  1817. 

gratuitous,  1844. 

gratuitous,  Involuntary  is,  1845. 

with  innkeeper,  1860. 

of  thing  found,  1864. 

of  thing  pledged,  by  gratuitous  pledge  holder,  2996. 
pBPOUTAST,  has  insurable  interest,  2548. 

when  person  offering  thing  in  perform&nce  is,  1608L 

when  seller  of  personal  property  must  act  as,  1748. 

defined,  1814. 

who  bound  to  become,  1815. 

duties  of,  in  ease  of  inyoltintary  deposit,  1816. 

must  deliver  on  demand,  1832. 

not  bound  to  deliver  without  demand,  1823. 

must  deliver,  where,  1824. 

must  give  notice  to  depositor  of  adverse  claim,  1825. 

nuty  exonerate  himself  from  liability  to  third  person  by  gt^lng 
notice,  1826. 

must  deliver  to  joint  owners  in  shares,  1827. 

depositor  must  indemnify,  when,  1888. 

of  animals,  must  provide  suitably  for  them,  1834. 

must  not  use  deposit,  1836. 

liability  of,  for  wrongful  use  of  deposit,  1836. 

may  sell  deposit,  when,  1837. 

must  give  information  of  cause  of  loss,  1838. 

duties  and  liabilities  of,  in  respect  to  service,  1839. 

liability  of,  for  negligence,  how  limited,  18«). 

gratuitous,  must  use  slight  care,  1846. 

gratuitous,  duties  of,  when  cease,  1847. 

gratuitous,  when  creditor  is,  1505. 

for  hire,  defined,  1851. 

for  hire,  must  use  ordinary  care,  18^. 

for  hire,  rights  of,  1853. 

for  hire,  duties  of  how  terminated,  1854-1855. 

for  hire,  finder  of  lost  property  is,  1864. 

innkeeper  as,  liabiUty  of,  1859. 

for  exchange,  1878. 

voluntary,  obligations  of,  2078. 

when  pledgee  assumes  liability  of,  for  reward,  2998. 
Dbposxtob.    See  DEPOsiTAar,  1825-18:^,  1833, 1838, 1854-1 85&  1S78> 

defined,  1814. 
DiPUTT,  may  take  acknowledgment,  when,  2184. 
Dmcknt.    See  Succsssion. 
Hmkbtion,  ground  for  divorce,  92. 

defined  %.  ^  . 

Digitized  by  VjOOQIC 


baMTtkm,  how  manifested-  f  96. 

In  case  of  stratagem  or  fraud,  who  ec  nmitf ,  97. 

in  case  of  cmelty,  who  commits,  98. 

separation  by  consent  not,  90. 

separation  when  becomes,  100. 

how  cured,  102. 

if  wife  refuses  to  accept  husband's  reasonable  plaoe  of  reildMMt 

she  commits,  103. 
if  place  is  unfit,  and  she  refuses,  husband  commits,  104. 
refusal  of  reconciliation  after  separation  is,  lOL 
refusal  of  condonation  is,  102. 

must  condnue  how  long  to  constitute  ground  for  diToree,  107. 
from  ship,  by  seaman,  forfeits  his  wages,  2068. 
See  DiTOEGB. 
DiTUl.    See  Will,  901, 1274-1276, 1282, 1302-1304, 1811, 1822, 1880-1881, 
1387. 
effect  of  power  to,  in  certain  cases,  921. 

See  Bequest,  1310, 1834, 1341-1342, 1845, 1347, 1860. 
when  does  not  lapse  by  death  of  devisee,  IdlO. 
when  not  to  impair  rights  of  purchaser,  1364. 
title  passes  by  specific,  1863. 

See  Bequest  ;  Lwact  ;  Will. 
DiTifU     See  Bequest,  1310, 1350.    See  Will,  1848-1844. 

may  dispute  Intimacy  of  issue,  196. 
DiLioxircE, 
Slight, 

gratuitous  employee  must  use,  1976. 
^tuitous  carrier  of  property  must  use,  2114. 
Ordmary, 

agent  must  use,  2020. 
voluntary  agent  must  use,  2078. 
gratuitous  carrier  of  persons  must  use,  2096. 
carrier  of  property  for  reward  must  use,  2114. 
trustee  must  use,  2269. 
Great, 

employee  for  his  own  benefit  must  use,  1979. 
shipmaoter  must  use,  2043. 
carrier  of  messages  for  reward  must  use,  2162. 
Utmost, 

carrier  of  persons  for  reward  must  use,  2100. 
furrier  of  Tvwa&geB  by  telegraph  must  use,  2162. 
Uirfotors.    See  Corporations. 
OiscHARas.    See  Trustee,  2233,  2260,  2282,  2287-2289. 
of  servant,  2015. 
of  employee,  1996,  2000. 

of  principal  does  not  discharge  guarantor,  when,  2826. 
jnsHONOR,  of  negotiable  instrument,  defined,  3141. 

rights  of  indorsee  of  check,  without  notice  of,  8256. 
See  AccBPTAircB  ;  Bill  of  Exchangb,  2021,  3133, 3185, 1188,  8194 
3206-3207 ;  Negotiable  Instrument  ;  Notigb,  8116, 1142-8141^ 
8147-8151,  3165-3160,  8220;  PREsaNTMENT 
lltTBIBUTiON  of  common  property  on  divorce,  147. 

order  for,  subject  to  revision  on  appeal,  149. 

of  capital  stock,  on  dissolution  of  corporation,  81ft. 

of  property  of  intestates,  1884, 1386. 


,y  Google 


MO  IKI>BX. 

Obtribution  of  pvoperty  of  lnt«ttate,  effect  of  BOnnmamttB  oa,  f  f  1890* 

1391, 1894. 

See  AppoBTXomuirr. 
ll|sr«TOT  CoTJKi.    See  Trustkb,  2282-2288,  2287, 2289. 

ttcdoii  may  be  brought  hi,  to  affiim  unsolemnized  marriage,  78 

Judge  of,  may  hear  and  determine  complaints  of  corporatloa 
eleetionn,  815. 

action  in,  to  recover  possession  of  property,  793. 

duty  of,  where  alien  heir  neglects  to  claim  property,  140& 
See  CouKT. 
drOKOX,  dissolves  marriage,  90. 

effect  of  Judgment  of,  91. 

for  what  causes  granted,  92. 

adultery  as  a  ground  for,  93. 

extreme  cruelty  as  a  ground  for,  94. 

wilful  desertion  as  a  ground  for,  96. 

constructive  desertion  as  a  ground  for,  96. 

wilful  ne^^lect  as  a  ground  for,  105. 

habitual  intemperance  as  a  ground  for,  106. 

certain  causes  for,  must  exist  how  long,  107 

when  to  be  denied,  112>124. 

eonnivance  as  a  ground  for  denying,  112. 

collusion  as  a  ground  for  denying.  114. 

condonation  as  a  ground  for  denying,  115. 

condonation,  when  can  be  made,  119. 

recrimination  as  a  ground  for  denying,  122. 

lapse  of  time  as  a  ground  for  denying,  125. 

limitations  in  action  for,  127. 

requisites  as  regards  residence,  128. 

presumptimi  of  domicile  in  actions  for,  129. 

not  to  be  granted  by  default,  180. 

when  denied  certain  affirmative  relief  may  be  allowed,  188 

expense  of  action  and  alimony,  137 

disposition  of  children,  188. 

support  of  wife  and  child,  139. 

security  for  maintenance  and  alimony,  140. 

what  property  resorted  to  in  providing  alimony  and  relief,  141 

when  relief  not  to  be  granted  to  wife,  142. 

legitimacy  of  innue,  144-145. 

disposition  of  common  property  on,  146. 

disposition  of   common  property  and  homestead  on  ordar  A 
court,  147. 

See  Condonation  ;  Collusion  ;  MABaiAOi ;  BBCiUMnrATXQH. 
HoxiNANT  Tknsmemt,  defined,  803. 

in  case  of  petition  of,  burdens,  how  apportioned,  807. 

rights  of  owner  of  future,  8u8. 

actions  by  owner  and  occupant  of,  809. 

See  Easements  ;  Skrvitudss. 
I  fWKB,  estate  in,  not  allowed,  173. 
Dka wiv.    See  Aoceptancb  ;  Bill  of  Exchanoe,  8171, 8172, 8176,  SISMKUl 

8193. 
DsAwUk     See  Bill  or  Exchanoe,  3171,  3174,  3177,  8199.  8218. 

acting  fraudulently,  not  entitled  to  notice,  8220. 

bill  drawn  on  and  accepted  by,  is  promissory  note,  8246. 

of  check,  when  exonerated  by  delay  in  presentment,  mfl 
»— — 5  for  injuries  hiflicted  in,  8847-8348. 


IHDBX.  SSI 

,  Will  or  reroeatioB  th«nof  proenred  through,  may  be  lenM  pf 

bate,  §  1272, 
defined,  1669. 
contract  procured  by,  voidable,  1667, 1689. 

See  MsiTAOi ;  Th&sat  ;  Undus  Invluxncs. 

Kaftsxirei,  of  wife  not  liable  for  debts  of  husband,  168. 

of  wife,  living  separate,  her  separate  property,  169. 

of  minor  children  her  separate  property,  when  living  sepwi 
ate,  169. 

of  legitimate  unmarried  minor,  father  entitled  to,  197. 

of  illegitimate  unmarried  minor,  mother  entitled  to,  200. 
See  Wages. 
Easxmints,  what  are,  652,  801. 

land  to  which  are  atti&ched,  how  termed,  808. 

what  pass  by  transfer  of  real  property,  1104. 
See  SsBViTUDi 
BminENT  DoMAiif ,  right  of,  1001. 
ttWLOTKS,  defined,  1985. 

entitled  to  indemnification,  when.  1969. 1971. 

when  not  entitled  to  indemnification,  1970. 

gratuitous  obligations  of,  1976-1976. 

with  power  of  attorney,  must  act,  1977. 

for  reward,  obligations  of,  1978. 

for  his  own  benefit,  obligations  of,  1979. 

cannot  be  bound  for  more  than  two  years,  1980. 

duty  of,  1981.  ^ 

must  serve  according  to  tisaee.  1982. 

must  use  reasonable  skill,  1933. 

must  use  whatever  skill  he  has,  1984. 

everything  acquired  by,  by  virtue  of  employment,  beloofi  It 
employer,  1986. 

must  give  account,  1986. 

not  bound  to  deliver  without  demand,  1987. 

must  give  preference  to  employer's  business,  1988. 

must  give  preference  to  several  employers  in  order,  1988. 

how  far  liable  for  substitute,  1989. 

surviving,  when  to  act,  1991. 

dLscharged  by  notice  of  death  or  incapacity  of  employer,  1996 

when  to  continue  service  after  employer's  death,  «&c  .  1993. 

entitled  to  compensation  from  employer's  successor,  l998w 

may  be  discharged  for  fault,  2000. 

compensation  of,  when  dismissed  for  fiiult.  2002. 

compensation  of,  when  quits  for  cause,  20o3. 

may  quit  service,  when,  2001. 

q£aa  A.OENT     Factor  *  8xrvai7T 
iifPLOTBR.    See  Emplotee,  1966,  1969-19'71.  1980-1981,  1986-1966  198» 

1989, 1996,  2000-2001,  2003;  Master;  Principal. 
Kmplothbnt.    See  Employee,  1965, 1996,  1998,  2000-2008. 

defined,  1965. 

termination  of,  1997. 

terminatioi.  of,  at  will,  1999 

eonfidentlal  obligations  of,  where  regulated,  1^*02. 

■ervice  without,  2078-'J079. 

See  AoENCT  ;  Service. 
r,  Public,  performance  excused  when  pre  rented  by,  UU. 


5SS  INDEX. 

BnMnj,  PubliOt Innkeeper  not  liable  for  damage!  eaoMd  t^,  }  189 

carrier  not  liable  for  damages  caused  by,  2194. 

cannot  be  insured,  2540. 
BsoHiAT,  when  State  takes  property  by,  1406-1407. 
lisoBow,  delivery  in,  1067. 
faiATif  in  dower  and  courtesy  abolished,  178. 

interests  in  real  property  are.  701. 

gualities  of  expectant,  699-700. 
1  real  property,  761. 
fee  simple,  762. 
fees-tail  abolished,  763. 
freeholds,  765. 
for  years  1^  766. 
at  will,  765. 

for  life  of  third  person  is  a  freehold,  766. 
future,  767. 
in  reyersion,  768. 
in  remainder,  769. 

suceessive,  for  life,  limitation  on,  774. 
successive,  for  life,  remainders  on,  776. 
creation  of  remainders,  future  and  contingent  estatM,  77L 
termination  of,  789. 
of  intestates,  succession  to,  1884. 
of  intestates,  how  distributed,  1386. 

See  iKTsaESTSj  Rial  Pbopsett. 
IBtdbicx,  of  witness,  priyileged,  47 
of  condemnation,  Il9-ll9. 
record  of  inventory  of  wife's  property  as,  166. 
certified  copy  of  articles  of  incorporation  as,  297. 
of  witness  proving  handwriting  to  an  instrument,  must  pror 

what,  1199. 
wliat  may  be  read  in,  1207. 
certificate  of  shipmaster  as  to  exertions  of  oeamam  to  save  Tessal 

presumptive,  2069. 
certificate  of  change  of  names  in  partnership  presomptiTe,  ol 

facts  therein,  2471. 
of  loss  to  be  given  to  insurer,  2634. 
See  PsooF. 
VzOHAHOK.  when  title  to  personal  property  passes  by,  1140. 

when  title  to  personal  property  losses  under  executory  i 

ment  of.  1141. 
defined,  1804. 

form  of  contract  for,  1805. 
rights  and  obligations  of  parties  to,  2806. 
of  money,  implied  warranty  thereon,  1807. 
deposit  for,  1818. 

deposit  for,  relation  of  parties  in,  1878. 
iUCUTiON.    See  Uom£ST£ad,  1240-1242, 1266. 

of  written  instrument  to  be  nia4e  in  ink,  14. 

sale  of  franchise  of  corporations  under,  388. 

where  proceedings  under,  against  corporations  maj  be  had,  1 

chattel  interest  not  liable  to  sale  under,  765. 

powers  of,  860, 

•zemption  of  homestead  from,  1240-1 M2. 

of  wlU     See  Will. 

of  power     See  Pow£K 

«C  Instruments     See  iNSTSUMKim.        Digitized  by  GoOglc 


IHDSZ.  ft88 

feuentton  of  eodkil,  effect  of,  on  preyious  will,  §  1287. 

of  aocord,  necessary  to  its  raliditj,  1522. 

of  contract  in  writing,  effect  of,  1625. 

of  authority,  when  principal  bound  by  incomplete,  2881. 
^^  of  authority,  when  principal  bound  by  in  excess,  2838. 

BucuTOB,  when  may  bind  out  child  to  apprenticeship,  267. 

who  entitled  to  letters  as,  though  not  named,  1371. 

cannot  have  power  to  appoint  executor,  1872. 

not  to  act  till  qualified,  1373. 

See  Personal  Repbbssntativss. 
BzscuTOBT.    See  Contract,  1110,  1609-1611,  1624 ;  OoNSXBiBAnov,  178L 
173a  * 

agreement  transfers  title  to  buyer,  when,  1141. 

contract  defined,  1661. 

instrument  in  writing,  implied  warranty  on  sal^  of.  1774 

^  See   AORBEHKNT. 

BXBIPTION  of  homesteads  from  execution,  1237, 1241. 

of  property  from  operation  of  mortgage,  2965. 
SZOHXRATION,  of  innkeeper  from  liability  to  guest,  1860. 

of  owner  from  claim  of  finder,  1871. 

of  finder  from  liability  to  owner,  1866. 

of  lender  from  liability  to  borrower,  1892. 

of  shipmaster,  on  abandonment  of  ship,  2041. 

of  carrier,  on  deliyery  of  goods  to  holder  of  bill  of  Ifdiufi  2181 

of  partner,  on  renunciation  of  future  profits,  2417. 

of  guarantors,  2819. 

of  surety,  2840,  2846. 

of  gratuitous  pledge  holder,  2996. 
Bz  Post  Faoio.    See  Retroaotiye. 

Fact,  concealment  of,  in  certain  cuses,  makes  condonation  Toid,  120 

mistake  of,  defined,  1577. 

mistake  of  foreign  law  is  mistake  of,  1579. 

actual  fraud  a  question  of,  1574. 

fraudulent  intent  a  question  of,  8442. 
Faotob,  defined,  2026. 

duties  of,  2027. 

may  sell  on  credit,  2028,  2368. 

cannot  relieve  himself  from  liability,  2080. 

actual  authority  of,  2368 

ostensible  authority  of,  2369, 

guaranty  of,  need  not  be  in  writing  2794. 

lien  of,  3061. 

See  Agent;  Principal 
Favilt,  head  of  the,  defined,  1261. 
Fare.    See  Carrier,  2187-2188,  2190-2191. 

passenger  may  be  ejected  for  not  paying,  487. 

when  passenger  may  oe  required  jo  pa^  an  increase  «*f ,  2189 
Feb  Simple,  defined,  762. 

words  of  inheritance  unnecessary  to  paos,  1072. 

title  when  presumed  to  pass,  1105. 
VlMALBS,  under  eighteen  considered  minors,  25. 

of  fifteen  and  upwards  capable  of  marrying,  f6. 
^BOl,  right  of  having,  maintained  by  coterminous  owoei*-  an 

k  for  life  to  keep,  in  repair,  840. 

uigitized  by 


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134  ntDEX. 

Venee,  cotorminoiu  owners,  when  bound  to  maintain,  f  811. 

rjBEBT   COBPOBATIONS.      See  BRIDOJB  CORPOaATIOHS  ;    COBPOKAnOM. 

FuioaB,  not  bonnd  to  take  charge  of  thing  found,  1864. 
taking  charge,  is  depositary  for  hire,  1861. 
must  gire  notice  to  owner,  1865. 
may  require  proof  of  ownership,  1866. 
entitled  to  compensation,  1867. 
may  exonerate  himself  by  storing  thing  found,  1868L 
may  sell  thing  found,  when  1869. 
such^«ale,  how  made  by,  1370. 

owner  may  exonerate  himself  by  surrendering  thing  found,  1S71 
absolutely  entitled  to  thing  abandoned,  187^ 

VlU  iNSURANCB.   See  INSURASOR. 

Vl8Hi50,  right  of  may  be  held  as  an  easement^SOl. 

right  of  may  be  held  as  a  serritude,  802. 
fiXTVRBS,  are  real  property,  658.  * 

what  are,  660-661. 

ownership  of,  1013. 

tenant  may  remoTe,  1019. 
VOROR,  may  be  employed  in  protecting  person,  property,  and  velatlTM,  M 

marriage  obtained  through,  voidable,  68. 

marriage  obtained  through,  may  be  annulled,  82. 
See  Duress  ;  IMLenace  ;  Um>ur  IirFLURircR. 
VORXCIOSURR,  of  right  of  redemption  of  mortgagor,  2931. 2867. 

of  mortgagor's  right  of  redemption,  by  pledge,  8011. 
VORniTURR,  of  powers  of  corporation  for  non-user,  468. 

of  serritude  for  non-user,  811. 

conveyance  by  owner  for  life  or  years  in  excess  of  his  title,  dcMI 
not  work,  1108. 

interpretation  of  conditions  involving,  1442. 

of  wages  of  seamen,  2063. 

contract  for,  of  property  subject  to  lien,  void,  2889, 
FoRORTruLNEss.    See  Negligence. 
Form,  of  solemnizing  marriage,  no  particular,  71. 

See  AcKNOWLXDOMBMT,  1189, 1191, 1192;  Grant,  1092:  Nones,  885, 881 
V89,3143 

of  covenants  in  execution  of  executorv  eontiaet,  1784. 

of  warranty  in  policy  of  insurance,  8606. 

of  real  mortgage,  2948. 

of  personal  mortgage,  2956. 
FoRMALiTiBs,  in  execution  of  power  may  be  disregarded,  904. 
{•'RANOUISB,  considered  as  property,  388. 

duties  of  purchaser  of,  on  execution,  889-890. 

redemption  of,  392. 

sale  under  execution,  where  made,  398. 

Scfi    C*ORPO&ATIONS 

Hkm    See  Contract,  1667-1568, 1571-1573, 1628, 1668 ;  Harriaor,  68, 82 
desertion  induced  by,  97. 

ground  for  annulling  indentures  of  apprenticeship,  276. 
where  it  is  mutual,  instrument  void  against  purchaser  with  ■• 

tice.  1228. 
will  procured  through,  void,  1272. 
actual,  a  question  of  fact,  1674. 
by-bidding  a,  1797. 
thing  gained  by,  held  in  tru^t,  2224. 


at  cannot  have  authority'  to  commit,  2800. 

iJigitized  by 


Google 


INDBX.  Ul 

fmaA  TCtun  of  premium  in  insurance,  for,  $  2619. 

exemplary  damages  may  be  giyen  in  case  of,  3294. 

interest  as  damages  may  be  given  in  case  of,  8288. 
See  Deout J  Duress  ;  Fraudulent  ;  Menace  ;  Undue  Inilubwoi. 
rKAUDULXzrr     See  Instruments,  1227-1281,  8439,  8441-3442. 

concealment  of  facts  makes  condonation  void,  120. 

cransfer,  when  deemed,  as  against  creditors,  854. 

omission  to  communicate  cenain  facts  avoids  insurance,  254QL 
2669. 

valuation  under  marine  insurance,  effect  of,  2736. 

misrepresentation  by  debtor  as  to  value  of  pledge,  •ffect  ol. 


rABHOLD,  defined,  765. 

See  Estates  ;   Real  Propertt. 
,Feeisht.    See  Carrier,  2110,  2115, 2117-2121, 2131,  2136,  2144,  2194,  21>7 
2200-2202 ;  Damages,  8316-3316. 
hypothecation  of,  by  respondentia,  3038. 
See  Bill  of  Lading  ;  Cargo  ;  Freightage  ;  General  i  vsraqi  ; 
Respondentia. 


Fuightage. 


See  Carrier,  2110,  2186-2144,  2204 ;  Insurance,  2661-2668 
'MASTER,  2376-237i ,  *z380,  3021,  3055 ;  Ship  Manager,  288S- 


Shipmaster, 

2389. 
when  wages  of  seamen  depend  on,  2054. 
when  wages  of  seamen  do  not  depend  on,  2058. 
how  valued  on  general  average,  21&3. 
how  altected  b>  at  audouuieuc  of  ship,  2730. 
seaman  has  lien  upon,  8056.    See  Cargo;  Ca: 
friendly  societies,  596.    See  Religious. 
fUTUU  Interest.    See  Interest,  690,  693-700,  708,  716,  789-742. 

contingent  on  death,  without  issue,  &c.,  construction  of,  1071 
lien  may  be  created  on,  2883. 

See  Estates  ;  Real  Property  ;  Remainders. 

Gaki,  right  of  taking  may  be  held  as  an  easement,  801. 

rignt  of  taking  may  be  held  as  a  servitude,  802. 
Gas  Corporations.    See  Corporations,  286,  629-632. 
Gender,  masculine  includes  feminine  and  neuter.  14 
General  Average.    See  Average,  2148,  2152-2154. 
6irr,  defined,  1146. 

how  made,  1147. 

what  not  revocable,  1148. 

in  view  of  death,  what,  1149. 

in  view  of  death,  when  presumed  to  be,  1150. 

in  view  of  death,  revocation  of,  1151. 

in  view  of  death,  effect  of  will  upon,  1152. 

in  view  of  death,  when  treated  as  a  legacy,  1158. 

in  view  of  death,  may  be  satisfied,  1367. 

to  subscribing  witness  to  will,  when  void,  1282. 

•ubscribing   witness  may  take  as  much  by,  as  by  ii 

certain  words  in  will,  when  words  of,  1886. 
deemed  an  ademption  of  legacy,  when,  1351. 
See  Bequest  ;  Devise  ;  Legaot. 
8oo»  Faith,  defined,  15. 

children  of  illegal  marriage  coxtracted  in^^SO. 

offer  d  performance  must  be  made  in,  14d8.  QoOqIc 


IKDlSX. 

I  lUih,  tnutee  bound  to  act  in  highest,  §  2228. 
partner  bound  to  act  in  highest,  21iL 
partner  not  bound  by  act  not  in,  except  to  persons  actliig  111 

2481. 
princi^l  bound  by  ostensible  authority  only  to  person!  aetisf 

•gent  not  bound  by  act  beliered  in,  to  be  within  anthoiity 

2343. 
agent  must  be  indemnified  for  adTance  made  in.  when,  2844. 
partner  relieyed  from  liability  by  renouncing  in  future  praftti 

2417. 
incumbrance  prim&  facie  presumed  to  be  ;^uir«d  in,  2944. 

See  lNCimBBANCB& ;  PUBOHASSa. 

Will,  is  property,  656,  998. 

defined,  992. 

seller  of,  may  agree  not  to  carry  on  same  business  in  eov&tj 
1674. 

implied  warranty  in  sale  of,  1776. 

partner  cannot  dispoBe  of,  2430. 
«T,  reservation  of  powers  in,  892. 

power  to  dispose  of  property  by,  how  executed  dC2. 

a  tranfifer  in  writing,  1053. 

when  takes  effect,  1054. 

date,  1055. 

delivery  of,  must  be  absolute,  1066. 

subject  to  a  condition,  and   in  possession  of  third   pertoa 
1057. 

surrendering  or  cancelling  does  not  operate  as  retransfer.  ^068. 

by  married  woman  void,  unless  acknowledged  how,  1098. 

no  covenant  implied  in  any,  except,  1113. 

what  title  passes  by,  1083. 

fee  simple  title  presumed  to  pass,  1105. 

words  of  inheritance  not  necessary  to  pass  a  fee,  1072. 

in  fee  simple  carries  with  it  subsequent  acquired  title,  1109« 

how  far  conclusive  against  grantor,  1107. 

how  far  conclusive  on  purchaser,  1107. 

by  owner  for  life  or  years,  11(^. 

on  condition  subsequent,  1109. 

on  condition  precedent,  1110. 

of  title  to  highway,  1112. 

valid  without  attornment  of  tenant,  1111. 

what  covenants  included  in,  1113. 
tklivery, 

necessary,  1054. 

presumption  of  time  of.  1065. 

to  grantee  necessarily  absolute,  1058. 

in  escrow.  1057. 

constructive,  1059. 

when  not  necessary,  1060. 
tk  trpretationj 

how  made.  1066. 

oi  limitations,  1067. 

by  aid  of  recitals,  1068. 

•gainst  grantor,  1069. 

3  ^^^f!'^S"^Zi^^       °'--  .vGoogle 


IKDBX.  537 

BftART  •>•  Form — simple,  §  1092. 
by  nuirrled  woman,  1093. 
by  attorney  in  fact,  10&4-1096. 
See   Covenants;    Interpretation;  Bial  Instsuminti ;  &■- 
CORDING ;  Transfer. 
BmASTEX,  of  rents  and  reversions,  rights  of,  821.        , 

payjnent  of  rent  to  grantor,  when  binding  on,  1111. 
See  Grant,  1056, 1069. 
SllNTOB,  interests  remaining  in,  of  express  trusts,  866. 

uf  trust,  may  devise  property  to  take  effect  on  tennlnation  oi 
trust,  864. 

See  Grant,  1069,  1107, 1109, 1111. 
OVAiANTR.    See  Creditor;  Guarantor,  2796,  2807,  2819,  2822-S3M; 

Guaranty ;  Surety. 
Qvarantor,  may  become  such  without  consent  of  principal,  2788. 
must  sign  guaranty,  2793. 

notice  to,  of  acceptance  of  guaranty,  when  necessary,  2796. 
of  performance  liable  without  notice,  2807. 
of  conditional  obligation,  liability  of,  2808. 
not  liable  for  more  than  principal,  2809. 
not  liable  on  unlawful  contract  of  principal,  2810. 
liable  notwithstanding  personal  disability  of  principal,  2810i 
may  revoke  continuing  giuiranty,  when,  2815. 
exonerated  by  certain  acts  of  creditor,  2819. 
liability  of,  not  restored  by  rescistsion,  when,  2821. 
liability  reduced  in  same  degree  as  that  of  principal,  2822 
not  exonerated  by  delay,  28^. 

not  exonerated  by  dealings  with  debtor,  if  indemnified,  2824. 
not  exonerated  by  discharge  of  debtor  by  law,  2825. 
surety  has  all  rights  of,  2844. 
surety  exonerated  in  like  manner  with,  2840. 
See  Guarantt  ;  Surety. 
avABANTT.     See   Guarantor,  2788,  2793,  2796,  2807,  2808,  2815,  2810 
2821-2825. 
defined,  2787. 

coutfideration,  when  necessary  to,  2792. 
consideration  need  not  be  expressed  in,  2792. 
when  promise  to  answer  for  another  not  deemed,  2794. 
interpretation  of  incomplete  contract,  2799. 
interpretation  of,  that  obligation  is  good  or  collectible,  2800. 
interpretation  of,  that  obligation  is  good,  not  discharged  by  harm 

less  omission  to  sue,  2801. 
interpretation  of,  that  obligation  is  good,  when  broken  by  prio 

cipal  leaving  the  State,  2802. 
when  deemed  unconditional,  2806. 
continuing,  defined.  ^14. 
continuing,  letter  of  credit,  when  deemed,  2864. 
liability  ot  factor  on  sale  under,  commission,  2029. 
party  to,  liability  of,  not  greater  than  principal's,  2809. 
party  to,  where  principars  contract  void,  2810. 
not  exonerated  by  void  promise,  <&c.,  2820. 
See  Letter  op  Credit  ;  Surety. 
Itjaeviah,  legal  proceedings  by  minor  to  be  conducted  through,  42 
appointment  of,  by  court,  supersedes  paren.^,  204. 

Whftt,286.  C^r^i^n\o 

kinds  of,  238  ^a^  ^^^^  by  V^OOglC 

flMMial,  what,  288. 


188  XHDKX. 


,  spaciAl,  what,  f  240. 

appointment  of,  Sj  parent,  by  will  or  by  deed,  90. 
no  peraon  can  be,  of  estate,  without  appointment,  SI 
appointment  of,  by  court,  248, 2244. 
jurisdiction  of  court  over,  246. 
rules  for  awarding  custody  of  minors,  248. 
powers  of,  appointed  by  tlie  court,  247. 
duties  of,  of  the  person,  248. 
duties  of,  of  the  estate,  249. 
relation  of  guardian  and  ward,  confidential,  2f^. 
death  of  joint  jruardian,  262. 
removal  of,  26S. 

appointed  by  parent,  how  superseded,  264. 
appointed  by  court,  how  suspended,  256. 
release  of,  by  ward,  266. 
discliarge  of,  257. 
of  insane  person,  268. 

may  consent  to  apprenticeship  of  ward,  when,  286. 
See  Ward. 


Bnif ,  of  minor,  when  and  how  may  disaffirm  a  contract  i 

may  dispute  legitimacy  of  Issue,  196. 

of  tenant  for  life,  when  take  as  purchaser,  779. 

construction  of  word,  1071, 1329. 
BlUHWAT,  transfer  of  land,  bounded  by,  1112. 
Bom,  depositary  for,  when  person  offering  thing  in  performance  Sa,  IfiOl 

depositary  for,  when  seller  of  personal  properly  to  act  as,  1748. 

apportionment  of,  1986. 

See  HiRiNO. 
HnuK,  products  of  thing  hired  t)elong  to,  1928. 

must  use  ordinary  care,  1928. 

mu9t  repair  certain  injuries,  1929. 

for  what,  may  use  thing  let,  1990. 

may  terminate  hiring,  when,  1982. 

must  pay  ratable  portion  of  hire,  when,  1986. 
0/  Heal  Property^ 

may  repair  at  expense  of  lessor,  when,  1942. 

contiDued  possession  of,  renews  lease,  1946. 

must  give  notice  of  proceedings  to  recover  land,  1919 

when  must  pay  rent,  1947. 

of  part  of  a  room  entitled  to  whole,  1960. 
Of  Personal  Property  ^ 

must  bear  ordinary  expense,  1956. 

may  repair  at  expense  of  letter,  1967. 

must  return  property,  when  and  where,  1968. 
K»IRO,  defined,  1925. 

covenant  for  quiet  possession  implied  in,  1927. 

when  terminates,  1988. 

when  terminates  br  incapacity  or  death  of  party,  1981 
See  Hiaaa,  1926, 19^1932, 1986. 
0/  Real  Property. 

obligations  of  parties  to.  1941-1942, 1960. 

term  of,  when  no  limit  fixed,  1948. 

of  lodgings  for  indefinite  term,  1944. 

when  presumed  to  be  renewed,  1946. 

■odM,  whan  necesMoy  to  tezminate,  1M6.       r r^r^nlr> 

iJigitizedbyV^OOQlC 


Onnit—  OfJUat  Property—  rent  for,  when  payable,  f  1M7. 

in  Bubdiyisions  of  rooms,  forbidden,  1860. 
Of  FersoncU  Property  ^ 

obUgations  of  parties  to,  1965-1958. 

of  ships,  1959. 

See  Landlord  ;  Tknant. 
SOLDXB.    See  Bill  of  Exchanok,  3194-^195,  3204,  8206,  8234  ;  Xioon. 
ABLi  INSTRUMKNT,  8114,  3131,  8187,  8142,   8148,  814.0,  8U6 
8164. 
Holidays,  what  are,  7-8. 

time,  how  computed  in  reference  to  performance,  10-11. 
COMXSTEAD,  how  assigned  on  divorce,  146. 

disposition  of  on  order  of  court.  147. 

subject  to  reyision  on  appeal,  148. 

defined,  and  its  exemption,  1287. 

from  what  property  may  be  tttken,  1288. 

husband  cannot  select  from  separate  property  of  wife,  1239. 

when  exempt  from  execution,  1240. 

when  subject  to  execution  or  forced  sale,  1241. 

eonreyance  of  mortgages  on,  &c.,  how  executed,  acknowledfdL 
&c.,  1242. 

bow  abandoned,  1243. 

declaration  of  abandonment,  from  what  time  effectual,  1244. 

proceedings  when   claimed  to  exceed   amount  of   exemptioa 
1245. 

application  for  appointment  of  appraisers  to  state  what,  124S. 

petition  for  such  to  be  filed  with  county  clerk,  1247. 

copy  of  such  petition  to  be  served  on  claimant,  1248. 

appointment  of  appraisers  to  appraise,  1249. 

oath  of  appraisers  of,  1250. 

duty  of  appraisers  of,  1251. 

report  of  appraisers  of,  1252. 

proceedings  on  report  of  appraisers,  1253-1257. 

fees  of  appraisers,  1258. 

when  title  to  perfected,  1265. 

execution  of  by  other  than  head  of  family,  1266. 

proceeding  to  obtain  by  other  than  head  of  family,  1266-1260. 

who  may  acquire,  and  of  what  value,  1260. 

declaration,  what  to  contain,  1263. 

"head  of  the  famUy,''  defined.  1261. 

mode  of  selection,  1262. 

declaration  to  be  recorded,  1268. 

sale  of,  of  insane  person.  Act  of  March  25. 1874.  Appendix,  p.  48D 
fiomsTSAD  Corporations.    See  Corporations,  2»6,  557-566. 
Honor.    See  Bill  of  Exchanob  ;  Negotiable  Instrument. 
BOTXL  Keepers,  to  have  lien  on  baggage,  1861. 

when  may  sell  unclaimed  baggage,  1862. 

notice  to  sell,  how  given,  18^. 

rates  of  charges  to  be  posted  in  rooms,  1868. 
BbrSBAKD,  abduction  of,  forbidden^  49. 

to  Select  place  of  residence,  103. 

wife  to  conform  to  such  selection,  or  she  commits  desertion,  VA 

if  unfit,  and  wife  refuses  to  conform,  he  commits  desertion.  101 

wilful  neglect  of,  ^o  provide  for  wife,  grouud  for  divorce,  106. 

may  be  compelled  to  fcive  alimony,  13^137. 

may  be  required  to  give  security  for  alimony,  140. 


MO  UTDEX. 

,  wlien  Mpante  property  of,  may  be  resorted  to  for  alimonj ,  f  141 
when  wife  shall  support,  1<6. 

legitimacy  of  issue  when  divorce  granted  for  adultery  of,  144. 
is  head  of  the  family,  166, 1261. 
separate  property  of,  168. 
earuingfl  of  wife  not  liable  for  debts  of,  168L 
property  of  wife  not  liable  for  debts  of.  171. 
not  liable  for  debts  of  wife  contracted  Wore  marriage,  170. 
power  of,  OTer  common  property,  172. 
not  allowed  an  estate  by  courtesy,  173 
liable  for  support  of  wife,  174. 
when  not  liable  for  support  of  wife,  176. 

wife  may  transfer  her  separate  property  without  consent  ofM€l 
not  bound  to  maintain  wife's  children  by  former  marriase,  200. 
consent  of,  not  necessary  to  wife's  execution  of  power,  8S^. 
consent  of,  not  necessary  to  wife's  disposition  of  property  b| 

wiU,  1273. 
disposition  of  common  property  on  death  of,  1402. 
oontract  obtained  from  wife  by  duress  of,  voidable,  1669. 
eontraot  obtained  from  wife  by  menace,  voidable,  1670. 
cannot  select  homestead  from  separate  property  of  wife,  1288. 

SeeMARRiAGB;  Wm. 
.  AHD  Wife,  mutual  obligations  of,  165. 
interest  separate  in  certain  respects,  167. 
may  make  contracts,  168. 
how  far  may  impair  their  legal  obligations,  169. 
mutual  consent  of,  to  separation,  a  sufficient  consideration,  liSO 
may  be  joint  tenants  or  tenants  in  common,  161. 
common  property  of,  164. 
property  rights  of,  how  governed,  177. 
marriage  settlements  of,  how  executed,  178. 
living  separate,  neither  have  superior  right  to  custody  of  child 

must  Join  in  conveyance  of  homestead,  1242. 
inheritance  between,  1400. 
hold  homestead  property  in  joint  tenanj^,  1266. 
See  Husband  ;  MARaiAoi ;  wirx. 

iDsnnnoATiON,  contracting  parties  must  be  capable,  1668. 

Idiot.    Bee  Pkrsons  of  Unsound  Mind. 

Iano&ancb,  mistake  of  fact  through,  renders  contract  voiilablc,  1667 

luxoiTDfACT,  who  only  may  raise  questton  of,  196. 

how  proved,  196. 
lUMinMATB  Child,  mother  entitled  to  custody  of.  20O. 

consent  of  mother  necessary  to  adoption  of,  224. 

oflfect  of  adoption  of,  230. 

appointment  of  guardian  for.  241. 

when  takes  by  succession,  18o7. 

mother  succeeds  to  property  of  intestate,  1888. 
VPOSSIBIUTT,  what,  1697. 

of  performance,  when  an  excuse  for  non-performance  aroids  cca 
tract,  1596. 

of  ascertaining  object  of  contract  avoids  it,  when,  1588. 

of  ascertaining  consideration  avoids  it,  1612>1618. 

the  Uw  does  not  require,  8681.  ^  _  _ 


Google 


INDEX.  Ml 

IV0APA(*2rT,  of  pexBoiu  of  unsound  mind  to  contiaet.  }§  89-40. 

to  consent  to  marriage  a  ground  for  decree  of  nullity,  88 

physical  incapacity  ground  for  annulling  marriage,  SL 

of  party  terminates  hiring,  1934. 

of  party  terminates  agency,  2355. 
iHonr,  defined  and  forbidden,  69. 
UOOMI,  defined,  748. 

disposition  of,  by  what  rules  goremed,  722. 

accumulation  of,  in  what  cases  allowed,  724. 

accumulation  of,  certain  directions  for  Yoid,  728,  72ft. 

allowance  out  of.  726. 

undisposed  of,  wno  entitled  to,  783. 
braUMBiUNCBB,  resulting  trust  not  to  prejudice,  856. 

erant,  how  fax  conclusive  as  to,  1107. 

instruments,  when  roid  against,  122^ 

instruments,  when  not  void  against,  1228. 
'ghts  of,  under  devisee,  when  not  impaired  by  hb  eon?«yaiiw 


when  personal  mortgage  is  void  against  subsequent,  2957. 

obligation  respecting  real  property  not  enforced  against  fa1iB» 
quent,  8395. 

certain  transfers  void  against,  8440. 

lien  of  seller  or  buyer  not  valid  against  subsequent,  8048. 

grant  by  person  having  power  of  revocation  operates  as  r0T0*%> 
tion  in  favor  of,  when,  1229. 
See  Gbakt;  Likn:  Mobtoagb;  Nonox;  Puschaskb;  Rioobditc. 
tMOmiB&ANCES,  defined,  1114. 

imposed  on  devised  property,  1802. 

covenant  against  all  damages  for  breach  of,  8805. 
lanxMHrrT,  to  depositary  by  depositor,  1883. 

when  employee  entitled  to,  from  employer,  1068, 1971. 

to  trustee,  ^73. 

to  partner  for  certain  losses  and  expenses.  2412. 

measure  of,  under  marine  insurance,  2736. 

measure  of,  under  fire  insurance,  2756. 

measure  of.  under  life  and  health  insurance,  2766. 

defined,  27'<2. 

for  future  wrongful  act,  v^oid,  2778. 

for  past  wrongful  act,  valid,  z774. 

extends  to  acts  of  agent,  as  well  as  principal,  2776. 

to  several  applies  to  each.  2776. 

creates  joint  liability  with  person  indemnified,  2777. 

interpretation  of,  2778. 

when  person  giving  has  rights  of  surety,  2779. 

in  legal  proceedings,  called  bail,  2780. 

in  legal  proceedings,  by  what  rules  governed,  2781. 

insurance  a  contract  of,  2551. 

guarantor  indemnified  liable  to  extent  of,  2824. 
IriOENTURBs.    See  Appbkxticbship,  270-273,  276. 
lND0B:i£8.    See  Negotiablb  Instrumikt,  3119, 8128-8126.  8166. 
lUDCBSEUBNT,  ou  marriage  certificate,  73. 

on  indentures  of  apprenticeship,  266,  875 

necessary  to  transfer  shares  of  stock,  324. 

of  surveyor  general,  on  plat  of  selection  of  right  o*  way,  478 

non-negotiable  contract  in  writing  may  be  transferred  bj,  144i 

of  bUl  of  lading,  effect  of,  2127. 

8m  Nbootiablb  Instrument,  3108^110,  811^-8128 


H2  IKDBX. 

boiORSM.    8«6  NioonABU  tsvamtamt  |f  8106,  8116-8118,  8121-tMP 
8146. 
of  bill  of  exehaiuBe,  when  ezonseatod  by  delay  in  pwi8»imwil 

8189. 

of  check,  when  exonerated  by  delay  in  prewntment,  8K6. 
JIFAHT.    See  Child  ;  Minor. 
iRfLOiNOB.    See  Unddk  Influxnck. 
iHHBRiTANCB,  words  of ,  not  necessary  to  pass  a  fee,  1072. 
IXJUNOnoM,  preyentire  relief  granted  by,  8420. 

proTisions  concerning,  3421. 

when  allowed,  3422. 

when  not  allowed,  3^28. 

See  PaiTsimyi  Rkusf. 
1j»UKT,  right  of  protection  from,  43. 

right  to  use  force  to  defend  person  and  prop^y  from,  €0. 

tenant  for  life  to  do  no,  to  real  property,  8lB. 

who  may  sue  for,  to  real  property,  826. 

threat  of,  to  person,  property,  or  character,  rendem  eontSMi 
voidable,  1669-1570. 

contract  for  exemption  from  liability  for,  Toid,  1666. 

obligation  to  abstain  from,  1708. 

liability  for,  caused  by  neglect,  1714, 1888. 

innkeeper,  when  not  liable  for,  to  guest's  property,  1860 

borrower,  when  to  repair,  1889. 

hirer,  when  to  repair,  1929. 

to  ship,  liabilities  of  seamen  for^2068. 

liabilities  of  inland  carrier  for,  2194. 

liabilities  of  marine  carrier  for,  2197. 
bnmxPER.    See  IIOTSL  Krbpbr,  1861-1868. 

liability  of,  as  depositary,  1869. 

how  exempted  from  liability,  1860. 

when  may  sell  baggage,  &c.,  for  storage,  1862. 
InANB  FsRSONS.    See  Persons  of  Unsouvb  Miin>. 
IirsANiTT,  children  of  marriages  annulled  on  ground  of,  84. 

See  Persons  of  Unsounb  Mind. 
Ihsolybnot,  defined,  3460. 

of  special  partnership,  claims  of  special  partner  on,  subordUnate 
2491. 

of  special  partnership,  preferential  assignments  on,  lorblddMi 
2496. 

what  is  equivalent  to,  of  ^principal  in  guaranty,  2802. 

of  consignee,  what  is,  30i7. 

consignor  may  stop  goods  in  transit  on,  of  oonsijroee,  8060. 
UriRCMEXTS,  containing  condition  wrong  p«r*«^  Toid/TCw. 

affecting  title  to  real  property,  ownership  of,  994. 

unrecorded,  valid  as  between  parties  with  notice,  1217. 

certain  non-negotiable  written,  transferable,  14^. 

by  married  woman,  void  unless  acknowledged,  how.  1093. 

by  attorney  in  fact,  void  unless  executed,  how,  1094. 

distinction  between  sealed  and  unsealed  abolished,  1629. 

iu  vnriting  prim&ftiei^  import  consideration,  1614. 

burden  of  proof  of,  showing  want  of  sufilcient  oonaideiatioii  t« 
support,  lies  where,  1616. 

evidencing  title  declared  by  judgment,  how  proved  for  Tmem4 


what  shall  not  be  recorded.  1161. 

uigitized  by 


Google 


iimBx.  9U 

|Mlniin«ntt,  ^^ed  by  otti«r  tlum  sabieribiiig  wItiiMt,  hem  riMoHttf, 

•zeoution  of,  proof  of,  how  made,  1186, 1198. 

subsequeat  recording  of  prior,  void  u  to  Bubsequent,  1208 

when  void  against  purchasers,  1227. 

when  not  void  against  purchasers,  1228. 

power  to  reroke,  when  deemed  executed,  1229-1280. 

other  provisions  concerning,  1231. 

when  void  against  creditors,  3439. 

may  be  valid  in  favor  of  purchaser,  3441. 

can  be  avoided  by  judgment  creditor  only,  8442. 
Unrecorded  ^ 

valid  as  between  parties  and  privies  thereto.  1217. 
bmriABLS  iMTsaBST.    See  iNsnaANCs,  2651-2567,  2768. 

in  general,  defined,  2546. 

may  consist  in  what,  2547. 

•anier  or  depositary  has,  2548. 

mere  contingency  or  expectancy  is  not,  2549. 

measure  of  ,^550. 

See  Marine  iNsmuNOB,  2669,  2060, 2662-2066. 
^■muKOS,  premiums,  how  payable,  446. 

defined,  2527. 

what  may  be  subject  to,  2681. 

usual  kinds  of,  2633. 

parties  to,  defined,  2688. 

parties  to,  who  may  be,  2539-2540. 

by  mortgagor  in  favor  of  mortgiwee,  effect  of,  2541. 

void  if  insured  has  no  interest,  2551. 

when  interest  must  exist,  2552. 

change  of  interest  suspends,  2658. 

change  of  interest  after  loss  does  not  suspend,  2564. 

change  of  interest  in  thing  separately  insured  does  not  suspenO, 
as  to  other  things,  2555. 

change  of  interest  by  succession  does  not  avoid,  2566. 

change  of  interest  from  one  joint  owner,  &c.,  to  another,  d<«l 
not  avoid,  2557. 

policy,  when  void,  2568. 

concealments  in,  defined,  2661. 

concealment,  ground  for  rescission^  2562, 

what  must  be  communicated  in,  2568. 

what  need  not  be  communicated  in,  2564. 

what  is  deemed  material  in,  2566. 

what  parties  to,  are  bound  to  know,  2566. 

right  to  information  in,  how  waived.  2567. 

what  information  not  necessary  to,  2568. 

fraudulent  ooneealment  of  facts  concerning  warranty,  arolta 
266tf.  J»        -1 

parties  to,  not  bound  to  state  matters  of  opinion,  2570 

xepresentation  in,  oral  or  written,  2571. 

representation  in,  when  made,  25  <  2. 

representation  in,  how  interpreted,  2573. 

representation  in,  when  deemed  a  promise,  2574. 

representation  in,  how  affects  policy,  2575. 

representation  In,  may  be  withdrawn,  when,  2676 

fMMesentation  in,  refers  to  what  time,  2577.        C^r^i^n]o 

iqpiwentation  In,  upon  beUef,  2578.  a^^^^  by ^^OOgLL 


144  INDSX. 

IvafiikBfl,  tipfeienUtlotiL  Id,  wb«a  deemed  ^Ise,  §  2679. 

repKKtiLation  Lst  ttklv*^  grouod  lor  rMcission.  2580. 
leprejent&riDD  in,  tiiartetlAlLtj  of,  Ju»w  determined,  2681 
riffht  to  r^sdndi,  5a>?5* 
pfilicj  of,  d(?tiiQfMJ,  2596. 
ptilkj  t*f,  mus't  upertfj  wlu-t^  259T. 
pfllicy  of,  wtio»>i  In^jefefit  covyriHl  bj,2B88. 
pcilicy  of^  may  proTide  tor  {LToldikDCflt  2611. 
jioliej  of,  !n  fatof  uf  a^ent,  i&c.,  Uow  expressed,  2589. 
pulicj  of,  jn  fflf  or  of  pftrtiier^  iSc,  how  expressed,  2590. 
jiollty  of,  geiiemi  tleacriptSon  In.  to  whom  applicable,  2691. 
prtlLcj  of,  may  be  fr^iued  furr  beoedt  of  successire  owners,  2581 
pulicjf  of ,  not  trfttif-ferrwil  hv  tmuiffoi  of  thiog  insured,  2588. 
policy  nf ,  opon^  defim-dH  2fA'&. 
iK^-icy  of,  r-!:-"f,  HJprlmHi,  -^wfi. 
policy  of,  ruuulDK,  deiiaea,  '^a^7. 
policy  of,  effect  of  receipt  in,  2598. 

policy  of,  agreement  not  to  transfer  claim  under,  Toid,  2568. 
policy  of,  warranty  in,  defined,  2608. 
policy  of,  form  of  warranty  in,  2604. 
express  warranty  most  be  in  policy,  2605. 
express  warranty,  defined,  2607. 
warranty  may  relate  to  past,  present,  or  fatuie,  2606. 
warranty  as  to  future,  defined,  2608. 
warranty,  performance  of,  when  excused,  2609. 
warranty,  breach  of,  material  ground  for  reecission,  2610 
warranty,  breach  of  immaterial,  does  not  ayoid,  2611. 
warranty,  breach  of,  without  fraud,  effect  of,  2612. 
premium  of,  when  earned,  2616. 
premium,  return  of,  when  due,  2617. 
premium,  return  of,  when  notdue^2619. 
premium  on,  when  none  allowed,  2618. 
premium  on,  in  case  of  over  insurance,  2620. 
premium  on,  contribution  to,  2621-2622. 
perils,  what  coyered  by,  2626. 

perils,  loss  incurred  by  rescue  from,  covered  by,  2627. 
perils  excepted  from,  2628. 

perils  caused  by  negligence  when  not  covered  by,  2629. 
notice  of  loss  under,  must  be  given,  2633. 
notice  of  defects  or  delay  in,  how  waiired,  2686. 
proof  of  loss  under,  what  must  be  giiren,  2634. 
proof  of  defects  or  delay  in  notice  of  loss,  how  waived,  2688. 
proof  of  loss  by  certificate,  when  excused,  2687. 
double,  defined,  2641. 
double,  contribution  under,  2642. 
reinsurance,  defined,  2646. 

reinsurance,  what  must  be  communicated  on,  2647. 
reinsurance  presumed  to  be  against  liability  2648. 
reinsurance,  ori^nal  insurer  has  no  interest  in,  2649. 
special  partnership  not  allowed  to  carry  on  businets  of  8137 
of  lottery,  forbidden,  2532. 
Marine^ 

defined,  2665. 

insurable  interest  under,  2669. 

Insurable  interest,  owner  of  sliip  has,  2080i 

ta»nbl.  tt^t^.  When,  266f.     ^^,^^^  ,,GoOgle 


INDEX.  64 « 

Ersukanci  —  Marine  —  expected  freightage,  when  tnsurable,  y  2893* 
insurable  interest  under  charter  party,  when  begins,  2QQ3. 
infiiirable  interest  in  profits,  2664. 
Insurable  Interest  of  charterer  of  ship,  266& 
what  must  be  conimuuinated  in,  2669. 
what  information  is  material  in,  2670. 

when  persons  insured  by,  presumed  to  hare  information,  2871* 
effect  of  certain  concealments  upon,  2672. 
representation  wilfully  false,  avoids,  2676. 
ayentually  false,  does  not  aroid,  2677. 
warranty  of  seaworthiness  implied,  2681. 
warranty  of  seaworthiness^  when  complied  with,  2688. 
xnaaning  of  "  seaworthy,"  m  respect  to  insurance,  2682, 2684. 
warranty  of  seaworthiness,  effect  of,  2684. 
different  degrees  of  seaworthiness,  as  contemplated  by  poUej  «f 


warranty  of  neutrality,  effect  of,  2688. 

Toy  age  coTcred  by,  how  determined,  26d2-2698. 

Toyage,  deviation  from,  defined,  2694. 

voyage,  deviation  from,  when  proper,  2695. 

voyage,  deviation  from,  when  improper,  2696. 

voyage,  deviation  from,  effect  of,  2697. 

loss  under,  total  or  partial,  2701-2702. 

actual  or  constructive  loss  under,  2703 

actual  total  loss  under,  2704. 

eonstructive  total  loss  under,  2706. 

actual  loss,  when  presumed,  2706. 

on  cargo,  <Kc.,  when  voyage  is  broken  up,  2707. 

abandonment  unnecessary  upon  actual  total  loss,  2709 

loss  of  profits,  when  presumed,  2740. 

covers  expenses  of  resMpment  in  certain  cases,  2708 

of  profits,  when  recoverable,  2788. 

free  of  average,  effect  of,  2711. 

against  total  loss  only^  effect  of,  2712. 

abandonment  under,  2716. 

valuation  in  policy  of,  when  conclusive,  2786. 

valuation  in  policy  of,  when  applicable  to  partial  less,  2787. 

valuation  in  policy  of,  apportioned,  2789. 

valuation  in  policy  of,  of  profits,  2740. 

measure  of  indemnity  under  open  policy  of.  2741. 

measure  of  indemnity  in  case  of  damage,  2742. 

measure  of  indemnity  where  expenses  are  incurred,  2748. 

measure  of  indemnity  for  general  average,  2744. 

measure  of  indemnity  where  insured  entitled  to  eontrlbutitMl 

2745. 
measure  of  indemnity  in  case  of  partial  loss  of  ship,  &e.,  2746. 

effect  of  alteration  in  thing  upon.  2753-2754. 
how  affected  by  acts  of  insured,  2755. 
measure  of  indemnity  under,  2756 
I4ft  and  Healthy 

when  may  be  payable,  2762. 

who  may  be  insured  by,  2763. 

may  be  transferred,  &c.,  to  person  having  no  interest,  276A. 

notice  of  transfer  of,  not  nec*jssary,  2766. 

■Masure  of  indemnity  under  2766.  r^^^^I^ 

Digitized  by  V^OOQIC 


§46 


-  Ixf9  and  Healthy 
doei  not  pan  to  auigne«  for  benefit  of  oredlton,  §  8110. 
•hip^s  manager  cannot  bind  owners  to,  2389. 
Ben^/icial  Socieiiet.    See  Act  March  28, 1874.    Appendix,  p.  481. 
iNium&iTCx  CospoRATioirs.    See  CoKPOftATioNs,  286, 414-419,  ^4-480, 487- 

448 
iMBUKSD-^  Person.    See  Insurakcs.  2631,  2532,  2540,  2561-2568,  2668 
2564,  2570,  2588,  2591,  2893,  2599,  2606.  2617-2620,  2829,  2683 
2634,  2642,  2649,  2671,  2676,  2704,  270^2709, 27786,  2788, 2711 
2764,  2766. 
In  Marine  Insurance, 

may  abandon,  when,  2717.  ^^ 

agents  of,  lire  agents  of  insnrer,  after  abandonment,  2736. 
not  obliged  to  abandon,  2782. 
Tkingt 

lottery  or  lottery  prize  cannot  be,  2682. 
may  be  abandoned,  when,  2717. 
belongs  to  insurer  after  abandonment,  2724.      ^^ 
belongs  to  insurer  after  payment  for  total  loss.  2726. 
bmnun.    See  Insueamoi,  2638-2639,  2562-2564,  2612,  2616-2817,  2BSI 
2626-2629,  2638,  2636-2686,  2642,  2646. 
defined,  2588. 
effect  of  assent  of,  to  transfer  of  insurance  to  mortgagee,  25431. 

what  must  be  communieated  by,  2647,  2669.  

Lt  Marine  Insurance.    See  iNSUftANOi.  2672,  2676,  2696,  2708, 2701 
2708,  2ni,  2786-2787,  2740,  2742-2746. 
paying  as  for  total  loss,  entitled  to  all  that  remains,  2726 
agents  of  insured  act  for,  after  abandonment,  2726. 
Here  silence  of,  is  not  acceptance  of  abandonment.  2727. 
how  liable,  on  refusal  to  accept  abandonment,  2781. 
In  Fire  Insurance.    See  Insuranck,  2753. 
fit  Life  Insurance.    See  Insitrakob,  2765- 
fSfBiiTiON,  to  desert,  not  always  coexistent  with  separation^^lOO 
of  grantor,  how  ascertained  in  ambiguous  nant,  1060. 
of  testator  to  gorem  interpretation  of  will,  1817, 1870. 
of  testator,  how  ascertained,  1318. 
orerrules  grammatical  construetion,  1824. 
orerrules  technical  meaning,  1327. 
substantial  compliance  wich,  sufllcient,  1846. 
to  make  ademption,  must  be  made  in  writing,  1861. 
to  extinguish  old  obligation  necessary  in  noTation,  1681. 
such  presumed,  when,  1533. 
to  deceive,  an  essential  element  of  fraud,  1572. 
of  parties  to  goyem  interpretation  of  contract,  1686. 
of  parties,  how  ascertained,  1637. 
of  parties,  when  ascertained  by  the  lanjguage,  1688. 
of  parties,  when  ascertained  by  the  writing  alone,  1688. 
of  parties  to  revision  of  contract  so  as  to  conform  to,  88W 
of  parties,  how  ascertained  in  revision,  8401. 
superior  to  terms  of  written  contract,  when,  1640. 
general  terms  to  be  restricted  by  main,  1648. 
particular  clauses  subordinate  to  general,  1660. 
words  inconsistent  with,  to  be  rejected,  1658. 
presumption  of,  to  destroy  or  cancel  contract.  16B9. 
of  trustor,  necessary  to  creation  of  trust,  2221. 
Iraadttlent,  a  question  of  fact,  8443.  G OOQ Ic 


149 


lenominated  eetatat,  f  701. 
elABflification  of » 702. 
Absolute,  679. 
qualified.  680. 
joint,  683. 


partnenhip,  684. 
in  common,  686 


present, 
future,  690. 
future,  kinds  of,  683. 

future  right  of  posthumous  ehildzen  in,  6M. 
future,  pass  by  transfer,  699. 
future,  none,  unless  specified,  706. 
future,  how  defeated,  789-740. 
future  when  not  defeated,  741-742. 
future  Tested,  694. 
future  contingent,  686. 
future  contingent,  may  be  altematiTe,  686. 
future  contingent,  not  Toid  because  improbable,  687. 
perpetual,  691. 
limited,  692. 

mere  possibility  of,  not  transferable,  700. 
when  Yoid  for  suspending  alienation,  716. 
chattel,  766. 

what,  affected  by  transfer,  1088. 
time  of  creation  of,  749. 
merger  of,  destroys  servitude,  811. 
in  ship,  how  transferred,  1135. 
in  existing  trust,  how  transferred,  1136. 
certain,  in  remainder,  not  aifec*«d  by  death  of  derisee,  1184. 
trustee  must  give  beneficiary  notice  of  his  acquisition  of,  S38i 
transfer  of  when  a  mortgage,  2921. 
tf  Money, 

compound,  defined,  14. 
defined,  1915. 

in  bequest  of  money,  when  accrues,  1866. 
on  legacies,  1369. 
application  of  payments  to,  1479. 
stopped  by  offer  of  performance,  1504. 
annual  rate  of,  1916. 
legal  rate  of,  1917-1918. 
when  becomes  part  of  principal,  1919. 
on  Judgment,  1920. 

when  trustee  may  be  required  to  pay,  2237. 
when  trustee  may  be  required  tonay,  2262. 
rate  on  loan  under  bottomry,  S0Z2. 
late  on  loan  under  respondentia,  3039. 
rate  on  amount  of  protested  foreign  bill,  8286. 
M  damages,  3287. 

as  damages  in  actions  other  than  contraetj8288 
as  damages,  limit  of  rate  of,  by  contract,  8288. 
aceepfeanee  of  principal  waives.  3290. 
miPBKTATioN.     See   Contract,  1685-1667 ;  Gbant,  106^1071 ',    Will 
1317-1328, 1331-1333, 1335, 1337-1338, 1876. 
of  wor Jb  and  phrases,  3565.  ^    . 

"^  iJigitizedby  V 


,y  Google 


148  IKDSX. 

taterpTetatioD,  of  reprewntatlon  in  tosurance,  f  367X 
of  agreement  to  indemnify,  2778. 
of  guaranty.    See  Gdabantt. 
of  suretyship.    See  Sumttship.  , -- 

of  negotiable  inatruments.    See  Nbootiabli  iNsnuimTt 
Of  Obligation*^ 

general  rnlcB  for,  1423. 

of  conditions  involving  forfeiture,  144-3. 
riiTrapaETKa,  officer  taking  ackao7^^?^''i.°%J?S&»  "^^ 
Imtistat*.  property  of,  cliargeable  with  debtSi  i««»,  i«». 

See  SuccBSSioK. 
IsvENToa.    See  Author.  ,     •*    i«r 

INVKCTORT.  of  Separate  property  of  wife,  100. 

effect  of  filing  such,  166. 

specific  legatee  must  make  and  deliver,  1366.  ^^^^ 

assignor  for  benefit  of  creditors  must  make,  dwl-tftxfik 

ijivoLUKTARr  Dbposit.    See  D*POsrr.  

iBRiOATiON.    See  Act  of  April  1,1872.    Apoendix,  p.  474 
I8LA2ID8,  formed  by  division  of  stream,  lOltt. 

in  navigable  streams,  1016. 

in  unnavigable  streams2l017. 
IifVK,  construction  of  word,  lOTL 

JwiisoH,  defined,  2148. 

in  what  order  made,  2149. 

by  whom  made,  2150. 
.  loss  by,  how  borne,  2151. 

loss  by,  called  general  average  loss,  2153. 

loss  of  cargo  stowed  on  deck,  2154. 

application  of,  rules  concerning,  2165. 
See  Gensral  Avrracib. 
JOTQUMT,  effect  of ,  annulling  marriage,  86. 

attornment  to  stranger  by  virtue  of,  valid,  1VJ«  .^.^^  m^ 

instruments  evidencing  title  declared  by,  how  acknowlaOgBa  IW 
record,  1159, 1204. 

interest  on,  1920.  ...x,  ^  *     oaro 

of  dissolution  of  partnership,  partner  ««>i»tlf*  *0|„246a. 

recovery  of,  by  creditor  agahist  surety,  effect  of,  MO*.      ^^ 

against  indemnitee,  when  conclusive  against  indemnitor,  WW 

lien,  3067. 

of  rescission,  3406. 

jf  cancellation,  3412. 
Judicial  Sale,  implied  warranty  on,  1777. 

pledgee  may  foreclose  right  of  redemption  by,  Wii. 
JUSTIOS  OP  THE  Peace,  may  solemnize  marriage,  70. 

may  take  acknowledgment,  1181. 

certificate  of  county  clerk  thereupon,  1194. 

may  give  consent  to  apprenticing  child,  265. 

may  order  meeting  of  corporations,  when,  811 

bv»mxi>,  degree  of,  how  established,  1389. 
series  of  degrees  of,  1391. 
direct  line  of,  1392. 
collateral  line  of,  1393. 
of  half  blood  inherit  equally,  I8M. 

ugitized  by  Google 


IITOBZ.  549 

Um»,  defined,  §§  U,  669. 

State,  and  appurtenance  thereto,  when  gtanted  to  corponMop 

474-476. 
when  Buch  rerertH  to  the  State,  477. 
is  real  property,  658. 
defined,  659. 

limitation  on  leases  on  agricultural,  717. 
burdens  and  servitudes  on,  801-802. 
right  of  flooding,  an  easement,  801. 
rights  of  owner  of,  820. 

See  Real  Propbbtt. 
tiAVS  AND  Building  Corporations.    See  Corporations,  286,  689*648. 
Landlord,  when  may  reenter  on  property,  790. 
must  repair,  when,  1941. 
must  not  let  room  in  parts,  1950. 

lodging  and  sleeping  apartments.  Act  of  April  8, 1876.  AppM- 
dix,  p.  487. 

See   INNKRKPER ;  TxNANT,  789,  827,  1111,  1942,  1945,  19i8- 
1949. 
Law,  «irect  of  Code  on  existing,  2Q,  9982. 
[ilAiB,  of  agricultural  lands,  limitation  of,  717. 
of  town  or  city  lots,  limitation  of,  718. 
for  life,  rent,  how  recorered  on,  824. 
remedies  of  lessor  as  against  lessee  and  assigns  for  breach  of 

agreement  in,  822. 
remedies  of  lessee  as  against  assigns  of  lessor  for  brweh  of 

agreement  in,  823. 
terms  of  may  be  changed,  827. 

See  Hiring. 
bMAOT,  gift,  when  treated  as,  1158. 
specific,  1857. 
demonstratire,  1857. 
annuity,  1357. 
residuary,  1357- 
general,  1357. 

Eroperty,  how  applied  to  payment  of,  ISSO* 
ow  applied  to  payment  of  debts,  1360. 

to  kindred,  «S^.,  chargeable  only  after  others,  1861 

abatement  of,  1362. 

specific,  title  passes  by,  1363. 

possession  of,  how  obtained,  1368, 1866. 

for  life,  inventory  to  be  given.  1365. 

of  income,  when  accrues,  1366. 

may  be  satisfied,  1367. 

when  due,  1368. 

hiterest  on,  1369. 
liMATXX,  death  of,  before  testator,  nullifies  such  testamentUT  i 
tion,  1343. 

for  life  must  make  Inrentory,  &c.,  1365. 

liability  of  for  testator's  debts,  13t7. 
See  Testator. 
iMimiACT,  of  children  of  annulled  marriages,  84. 

of  children  of  divbrced  marriages,  144-145. 

presumption  of,  193. 

of  children  bom  out  of  wedlooki  194.  ^^  . 

who  may  dispute,  196.  ugtized  by LiOOgle 


S50  INDBX. 

(inrDiR,  rights  of,  under  bottomry,  §§  3028, 8025. 
For  Use. 

retahu  title  to  thing  lent^  1886. 

entitled  to  increase  of  thing  lent,  1885. 

consent  of,  necessary  to  loan  by  borrower,  1891. 

must  indemnify  borrower,  when,  1893-1894. 

may  require  return  of  loan  at  any  time,  1894. 
For  Excham^e^ 

cannot  require  borrower  to  return  thing  lent  before  time  i 
upon,  1905. 
Of  Money  ^ 

entitled  to  what  inteieet,  1916-1918. 
See  Loan. 
LnBU,  of  real  property,  rights  of,  as  agsdnst  assigns  of  leflsor,  fSS. 

remedies  of  lessor  as  Hjrainst  assigns  of,  8^. 
ItBTlB  OF  Cbxdit,  defined,  2858. 

may  be  addressed  to  whom,  2859. 

writer  of,  liable  to  whom,  2860. 

writer  of,  liable  without  notice,  when,  2865. 

writer  of,  liable  only  for  credit  duly  given,  2866. 

general,  defined,  2862. 

general,  any  person  may  gire  credit  under,  2862. 

general,  several  persons  may  give  credit  under,  2868. 

special,  defined,  2861. 

when  deemed  continuing  guaranty,  2864. 

credit  given  must  agree  with  terms  of,  2866. 
See  Guaranty  ;  Suiuett. 
LiTTSBS,  ownership  of  private,  985. 
[iiTTXBS  Patent,  may  be  recorded  without  proof  or  acknowledgment 

1160. 
twrtMRa  Testaxkhtabt,  who  entitled  to,  1371. 

executor  not  to  act  till  he  obtains,  1372. 
IiiABiUTT,  of  minors  and  persons  of  unsound  mind  for  wrongs,  41. 

of  stocliholders  of  corporations,  822. 

of  husband  for  support  of  wife,  174. 

of  factor  to  principal.  2029. 

factor  cannot  relieve  himself  from,  2090. 

of  shipmaster  on  abandonment  of  ship,  2041. 

of  depositary,  for  damage  arising  from  wrongful  use  of  ( 

of  depositary,  for  damage  arising  from  negligence,  1840. 

of  innkeepers,  1859. 

innkeepers,  when  excused  from,  1860. 

of  finder  of  lost  property,  1865. 

carrier  may  terminate  his,  how,  2121. 

of  inland  carrier  for  loss,  &c. ,  2194. 

of  marine  carrier  for  loss,  <&c.,  2197-2196. 

of  trustee  mineling  trust  funds,  2236. 

of  trustee,  for  breach  of  trust,  2287-2288. 

of  partners,  2442-2443. 

of  oDe  held  out  as  partner,  2444-2445. 

indemnity  against,  2778 
(a  v.,  defamation  effected  by,  44. 

defined,  45. 

what  publications  are  privileged,  4T.  ^ 

««,  defined,  2872.  ^^'  ,,^,,3,  ,^  GoOglc , 


iin>xx.  Ml 

ftai,  teBMStMd  liable  for  oertain,  ( 12*1. 
baggaffB  liable  to,  1861-1862. 
■eaman  not  to  lose  his,  by  agreement,  2)62. 
of  mining  partner,  2514. 
of  mining  partner,  purchaser  of  interest  takes  fubjaei  te,  KIT 

2518. 
accessory  to  some  obligation,  2909. 
general,  defined,  2874. 
special,  defined,  2875. 
light  of  holder  of  in  certain  case,  2876. 
what  contracts  are  subject  to  law  of,  2877. 
how  created,  2881. 

by  operation  of  law  does  not  exist  until  performance  due,  2882 
may  be  created  upon  future  interest,  2888. 
may  be  created  as  securi^  for  future  obligation,  2884. 
cannot  transfer  title,  2888. 
does  not  imply  any  personal  obliffation,  2890. 
eonflned  to  original  obligation,  2891. 
does  not  limit  creditor's  right  to  enforce  obligation  lecared  t 

by,  2892. 
holder  of,  not  entitled  to  compensation  for  troublej^GS. 
holder  of,  may  pledge  it  subject  to  extent  of  lien,  2990. 
priority  of,  according  to  creation,  2897. 
priority  of  mortgage  orer  other,  2898. 
priority  of,  order  of  resort  in  case  ofj^99. 
redemption  from,  who  has  right  of,  2908. 
redemption  from,  when  inferior  lienor  has  right  of,  2904. 
redemption  from,  how  made,  2906. 
redemption  from,  cannot  be  restrained,  2889. 
extinguished,  how,  2910. 

extinguished  by  sale  or  conrerslon  of  subject,  2910. 
not  extinguished  by  lapse  of  time,  2911. 
not  extinguished  by  partial  performance  of  obligation,  2912 
•xtinguished  by  restoration  of  subject  to  owner,  2918. 
of  seller  of  real  property,  8046. 
of  seller,  how  waived,  8047. 
of  seller  aoainst  whom  valid,  8048. 
of  seller  of  personal  proper^,  8048. 
of  buyer  of  real  property,  8060. 
for  services  on  personal  property,  8061. 
of  manufacturer,  repairer,  cte.^  of  personal  property,  8062 
of  factor,  8053. 
of  banker,  3054. 
of  shipmaster,  3055 
of  oarrier  for  freighttwe,  2144. 
of  carrier  for  fare,  2190. 
•f  mates  and  seamen,  8066. 
of  sheriffs  and  similar  offlcers,  8067. 
of  judgment,  8058. 
of  mechanic,  3059. 
npon  ships  for  debts,  3060. 
stoppage  in  transi*  as  mode  of  enforcement,  8076. 
does  not  revoke  prior  will,  1801.  ^^ 

for  freightage,  ship's  manager  cannot  dve  up,  288B 
of  partner  upon  partnership  property,  2405.   C^oooIp 
of  pledge  is  dependent  on  poosession ,  2988.     ^"^"^^^^ 


Ml  INDBX. 

UtB,  damagM  for  c<mT«mion  of  property  subjeet  to,  f  8888. 

Sm  Bottomiit;  Mobtcibb;  Plkd«k;  RxspoHDXzfTiA ;  Sr0PPA«B  n 
T&ANsrr. 
Ubtoe.  See  Lmr,  2888,  2891-2893,  2899,  290i,  2910,  2918,  2900;  Uokf 

gagjbjb;  Plidqu. 
Lot  Ihsurahcs.    See  Insukamoi. 
Limitation,  of  claim  of  aliexu  to  inherited  property,  672. 

of  ieaaea  of  certain  real  property,  717-718. 

of  successive  estates  for  life,  774. 

clear  and  dlFtinct  in  grant,  not  controlled  by  other  wosds,  ^JM 

words  of,  in  wiU,  1885. 
lAAV.    For  Use. 

defined,  1884. 

does  not  transfer  title,  1886. 

borrower  under,  mtist  use  what  care,  1886-1888. 

borrower,  when  to  repair  injuries,  1889. 

borrower,  how  must  use  thing  lent,  1880. 

borrower,  must  not  relend,  Iwl. 

borrower,  when  to  bear  expense,  1882. 

borrower,  duties  of,  on  termination  of,  1896. 

Inader  under,  liable  for  defects,  1898. 

lender  may  require  return  of  thing  lent,  1894. 

lender,  when  may  terminate,  1895. 
#W  Exchange^ 

defined,  1902-1903. 

transfers  title,  1904. 

contract  of,  cannot  be  modified  by  lender,  1906. 

certain  provisions  apply  to,  1906. 
€tf  Money, 

defined,  1912. 

to  be  repaid  in  current  money,  1918. 

may  be  for  interest,  1914. 

annual  rate  of  interest,  1916. 

legal  interest  for,  1917-1918. 

interest,  when  becomes  part  of,  1919. 

interest  on  judgment,  1920. 
Under  Bottomry.    See  Bottom kt.  8017,  8022-8023,  8026. 
LODOiNa  HousBS.    See  Act  April  3, 1876,  Appendix,  p.  486. 
LoDaiNOS     for  what  term  presumed  to  be  hired,  1944. 

rent  of,  when  parable,  1917. 
Icn.    See  Cakbikr,  ^194,  2197 ;  Insuranck,  2626-2629 ;  NonOB,  Ml 
2636-2636;  Partnrrship,  2403-2404,  2412. 

occasioned  by  colli.Hion  of  ships,  how  apportioned,  973. 

of  thing  deposited,  obligAtions  of  depositary  thereon,  1888 

innkeeper,  when  not  liable  for,  of  guest's  property,  1860. 

employer  mu^t  indemnify  employee  for,  caused  by  negUgiAet  flf 
former,  1971. 

by  Jettison,  how  borne,  2161-2162. 
Under  Martne  Insurance, 

effect  of  total,  on  contract  of  bottomry,  8026. 
f «— .-       o  ^  ^^^^^h  2701-2706,  2709-2712, 2741. 
LVMAVB     See  Caeribb,  2180-2183,  2190. 
MniATios.    SeePBRsoNS  o*  Dnsouhd  Mum. 

*^**^IJ  ''l^^^^''f  ^'5^°*  authority  gives  such  to  a,  12. 
of  memben  of  mining  partnerahip  control  the  '-— 


INDEX.  Sftt 

Mauoi,  when  not  inferred  from  publication,  §  47         ' 

inteieat  as  damages  may  be  fl^en  In  case  of,  8288. 

exemplary  damai^  in  case,  8294. 
Harks,  implied  warranty  of  genuineness  of,  on  goods  sold,  177t 
MAaaiAOE,  defined  —  what  constitutes,  55. 

who  are  capable  of  consummating,  6& 

proof  of,  how  made,  57. 

when  voidable  from  incapa<ltf  to  contract,  58 

when  voidable  from  fraud  or  force,  58. 

incestuous.  58. 

between  whites  and  negroes,  &c.,  void,  60. 

subsequent,  when  void,  61. 

promise  of,  when  neither  party  held  bv,  62. 

damages  for  breach  of  promise  of,  8819. 

contracted  without  the  State,  63. 

how  solemnized,  68. 

license,  68. 

by  whom  solemnized,  70. 

no  i>articular  form  for  solemnization  of,  71 

substantial  requisites  for  solemnization  of,  72. 

certificate  of,  U. 

eertifleate  of,  to  parties  and  county  recorder,  74. 

declaration  of,  how  made,  75-76. 

declaration  of,  to  be  recorded,  77. 

action  to  afibrm  unsolemuized,  78. 

husband  not  liable  for  debts  of  wife  contracted  before,  lH 

Judicial  determination  of  incestuous  or  void,  80. 

when  may  be  annulled,  82. 

action  to  annul,  when  and  by  whom  commenced,  88 

children  of  annulled,  84. 

custody  of  children  of  annulled,  86. 

effect  of  judgment  of  nullity  of,  86. 

dissolution  of,  90. 

legitimacy  of  issue  after  dissolution  of,  194. 

releases  from  parental  authoritv,  204. 

of  ward,  supersedes  guardian,  254. 

restraint  upon,  when  void,  710,  1676. 

effect  of,  upon  will  made  previous,  1298-1800. 

See  Dbssktiom  ;  Divorck  ;  Husband  and  W^ifb  ;  Nulutt. 
IIauuaov  Sxttlbments,  how  executed,  178. 

to  be  acknowledged  and  recorded,  179. 

effect  of  recording  or  non-recording,  180. 

minor  may  make,  181 
yAmmigp  WoMKN,  may  become  corporators  officers,  and  members  of  0«^ 
tain  corporations,  285. 

shares  of  stock  of,  how  transferred,  825. 

dividends  payable  to,  825. 

may  hold  stock  in  homestead  corporations,  561. 

may  hold  stock  in  savings  and  loan  corporations,  576. 

grant  by,  void,  unless  acknowledged,  how,  1098. 

power  of  attorney  of,  void,  unless  acknowledged,  how,  lOM 

acknowledgment  by,  to  instrument,  1186. 

acknowledgment  by,  form  of  certificate  of,  1191. 

effect  of  conveyance  by,  1187. 

may  dispose  of  separate  property  by  will,  127&^^^^i„ 

See    Wifl  igitizedbyVjOOQlc 


iM  iin>BX. 

KAflfn  AUD  Skktakt.    Bee  Smitaiit,  § f  49. 264, 2009, 201S,  SOlft. 

See  ApPEnmos.    Act  of  April  8, 1876,  Appendix,  p.  48f. 
MAfl,  power  of  master  of  ship  oyer,  2087. 

deiined,  2048. 

liow  engaged  and  discharged,  2060. 

if  Tessel  is  unsea worthy,  maj  refuse  to  serve  on,  2061 

when  wages,  &c.,  of,  begin,  2065. 

wrongfully  discha^^,  may  reeorer  for  his  wages,  2057. 

disabled  on  voyage,  entitled  to  his  wages,  2062. 

cannot  ship  goods  on  his  own  account,  2Cf64. 

embezzlement  or  injuries  by,  206&. 
Matuutt,  apparent,  defined,  8132. 

apparent,  of  bill  payable  at  sight,  8184. 

apparent,  of  promissory  note  payable  at  sight,  8186. 
Maxims,  of  jurisprudence,  8509. 
Mayor,  may  solemnise  marriage,  70.    Repealed. 

may  take  acknowledgment  of  instruments,  1182.    Repealed 
MlAIUSI  OF  DAXA6S8.     See  Daiusxs. 
UxHAOB.    See  Duftxss,  1272, 1£67, 1689. 

defined,  1570. 

See  Undux  iNnimrax. 
MXB8XS,  of  interests,  when  destroys  serritude,  811. 

of  interests,  when  destroys  hiring,  19ffl. 

of  deolarations  of  trust,  2254. 
Minns,  protection  of.    See  Act  March  16, 1872,  Appendix,  p.  467. 
MiMXt.    See  PARniXRSHiP,  25U-2518, 2^. 

certain  appurtenances  to,  deemed  fixtures,  661. 

power  of  partners  in,  as  agent  for  each  otherj2619. 
Miimre  Corporations.    See  OoRPORATiom,  286, 684-687,  and  pp.  491-498 
Minors,  who  are.  26. 

period  of  minority,  how  calculated  26. 

custody  of,  82. 

cannot  gire  delegation  of  power  or  make  contract,  88. 

contracts,  may  be  made  by,  subject  to  disaflBrmauee  84. 

when  may  disaffirm,  86. 

cannot  disaffirm  contract  for  necessaries,  86. 

cannot  disafiOrm  certain  obligations,  87. 

liable  for  wrongs,  41. 

not  liable  for  exemplary  damages,  41. 

how  may  enforce  their  rights,  42. 

when  capable  of  consummating  marriage,  56. 

wife  entitled  to  earnings  of,  living  with  her,  apart  from  hue 
band,  169. 

capable  of  contracting  marria^^,  may  make  marriage  settl* 
ment,  181. 

may  apprentice  themselves,  how,  264. 

shares  of  stock  of,  may  be  represented  at  meeting  of  corpora 
tion,  818. 

may  hold  stock  in  homestead  corporations,  561. 

may  hold  stock  in  savings  and  loan  eorporations,  6il5. 

when  his  wages  may  be  paid  to  him,  212. 

restraints  upon  marriage  of,  allowed,  710, 1676. 

allowance  out  of  fund  may  be  made  for  support  of,  726. 

MMimj  contract,  to  what  extent,  1557. 
ir..m.>  See  Child. 

«Ua»RRSxNTATiow,  by  depositary,  when  renders  him  liable J1888. 


iirBsx. 

lOfrqMMeiitBtioii,  tnutee  mtut  not  benefit  by,  f  2228. 

partner  must  not  benefit  bj,  2411. 

fnudulent  by  debtor,  as  to  ralue  of  pled^,  effect  of,  29M 

eontract  obtained  through,  cannot  be  specifically  enforced, 
See  DsoEiT ;  Fraud  ;  iUpaKSKMTATiOK. 
IflNAKi,  in  will,  how  corrected,  1340. 

consent  to  contract  given  by,  Toidable,  1666. 

may  be  of  fact  or  of  law,  1576. 

of  fact  defined,  1577. 

of  law  defined,  1578. 

of  foreign  law  is  mistake  of  fact,  1579. 

in- written  contract  to  be  disregarded,  1640. 

agreement  for  compensation  does  not  take  away  right  to 
for,  when,  1690. 

thing  obtained  through,  must  be  restored  when,  1712>171B 

thing  gained  by,  held  in  trust,  2224. 
HoaiT,  wife  cannot  make  contntct  for  payment  of,  167. 

performance  in  respect  to,  called  payment,  1478. 

ofTer  to  pay.  how  to  be  made,  1500. 

exclumge  of,  by  what  rules  goyemed,  1804. 

implied  warranty  on  exchange  0^1807. 

inrestment  of  trust,  by  trustee,  2261. 

negotiable  instrument  must  be  made  payable  in,  8068 

interest  of.    See  Imterbst  or  Mqnst. 

loan  of.    See  Loan. 
llOifTH,  defined,  14. 

IfONVMEKTS,  coterminous  owners  bound  to  maintain,  841. 
Morals,  contract  contrary  to  good,  unlawful,  1667. 
HORTeAOi,  to  be  recorded,  1164. 

separate  book  for  recording,  1171. 

homestead  liable  for  certain,  1241. 

husband  and  wife  must  acknowledge,  of  homestead,  IML 

on  property  not  a  rerocation  of  will,  1302. 

defined,  2^. 

on  what  may  be  created,  2921.  ^^ 

how  only  may  be  created,  renewed,  or  extended,  292S. 

a  special  lien,  2922. 

what  is  deemed,  2924. 

absolute  transfer  may  be  shown  to  be,  when,  2926. 

on  what  a  Uen,  2926. 

does  not  entitle  mortgagee  to  possession,  2927. 

not  a  personal  obligation,  2928. 

title  acquired  subsequent  to,  enures  to  mortgagee,  2980. 

person  bound  by,  may  not  impair  security,  WW, 

may  be  foreclosed,  2^1. 

power  of  sale  may  be  given  by,  2982. 

power  of  attorney  to  execute,  how  made,  2988. 

recording  assignment  of,  2934. 

recording  assignment  of;  when  not  notice,  2936. 

assignment  of  debt  secured  by,  carries  with  it  the  Beemitj 

how  discharged,  2938-2940. 

Calty  for  not  acknowledging  satisfaction  of,  2941. 
bomry  and  respondentia  not  governed  by  law  of,  29tiU 
what  is  subject  to,  2947. 
form  of,  of  real  property,  2948. 

conveyance  with  mortgi^je  under  covec,  how  defeated,  2960. 
.f  real  property,  how  acknowledged,  recorded,  &c.,  2969L 


MOBMASV  —  Of  Penanal  Property — on  wh^t  may  be  made,  f 

form  of,  2966. 

when  Toid  agaioBt  erediton  and  incumbrancers  2957. 

of  ship,  when  Toid,  2958. 

where  must  be  recordecL2959. 

of  property  in  transit,  2960. 

of  property  of  common  carrier,  296L 

recording  in  different  places,  2962. 

how  acknowledged,  recorded,  &c.,  2968. 

certified  copy  of  recorded,  may  be  recorded  in  other  county,  2B64 

property,  when  exempt  from  operation  of.  2965-2906. 

may  be  foreclosed,  2967. 

property  in,  may  be  attached,  2968. 

proceedings  when  property  in,  is  attached,  2968-2970 

provisions  concerning  do  not  apply  to  ship,  2971. 

on  growing  crops,  2972. 
MoRTOAOU.    See    Insuranok,  2541-2542:   Mobtoaos,  2927,  2929-2981 

2987-2989,  2941,  2967,  2938. 
MOBTOAOOR.    See   IMSURAKCE,  2641-2542;  Mobtgags,  2921,  2927,  2928 
\  2980-2931,  2^1,  2957,  2965-2968. 

^  MorBBB,  of  illegitimate  unmarried  minor  is  entitled  to  his  custody,  !KM>. 

^  father  cannot  transfer  custody  of  child  without  written  consent 

of,  197.    See  Pabrnt  Aim  Child. 

lll^tiinate  child  cannot  be  adopted  without  consent  of,  22i. 

consent  of,  when  necessary  to  apprenticeship  of  child,  265. 

of  illegitimate  cUld  succeeds  to  his  property,  1888. 

Kami,  of  adopted  child,  228. 

of  corporations  to  be  stated  in  articles  of  incorporation,  290. 
error  in  articles  of  incorporation  concerning,  does  not  invalidat* 

357. 
notice  of  change  of  partnership,  is  sufficient  notice  of  disaola 

tion,  2454. 
fictitious,  when  may  be  used,  2466-2467. 

certificate  of  change  of  partnership,  to  be  filed  and  published,  2108 
county  clerk  to  keep  register  of  partnership,  2470. 
See  Fictitious. 
llATiaATioiv,  domestic,  962. 
foreign.  962. 
rules  of,  970. 

collision  from  breach  of  rules  of,  971-973. 
See  GoLusiOM. 
VloissABixs,  minors  and  persons  of  unsound  mind  cannot  disaflbm  eoi* 
tract  for.  86. 
neglect  of  husband  to  provide,  for  wife,  ground  for  divoree  106. 
may  be  furnished  to  wife  at  cost  of  husband,  174. 
promise  of  adult  child  to  pay  for.  furnished  parent,  valid,  206. 
furnished  to  child,  when  parent  liable  for,  207. 
famished  to  child,  when  parent  not  liable  tm,  206 
Vmlxot.    See  Ncolioxncb. 
Vmuobnox,  degrees  of,  17. 
wilfuJ,ll05. 

wilful,  of  husband,  ground  for  divorce,  93. 
such  must  continue  how  long  to  constitute  ground  for  divaree,  lUT 
lSillity*fo?,°1714'  *°""^*°«  indentures  ol  apprentioMhip,  276 
liability  of  depositary  for,  1888, 1840.      u  gitized  by  GoOglc 


INDEX.  fi» 

VcfUgwiM,  UabUitj  of  iimkeep«^r  for,  §  1860. 

borrower  to  repair  injuries  caused  by  hlsjl889 

hirer  to  repair  injuries  caused  by  his,  1929. 

employer  must  indemnify  employee  for  loss  caused  by  former  », 

responsibility  of  employee  for,  1990. 

caxrier  cannot  exonerate  himself  from  anticipated  liability  to  bi 

caused  by  future,  2176. 
person  claiming  under  ostensible  authority  muBt  be  f cm  fswi 

2834. 
of  agent,  principal  responsible  for,  when,  2888. 
shipmaster,  when  responsible  for,  of  employees,  28HB 
shipmaster,  when  responsible  for,  of  pilot,  2884. 
insurer,  when  liable  for  loss  through,  26^. 
fMcnABLS  In STRUMENT.    See  NoTics,  8142-3151,  8156-8160. 
defined,  3087. 

must  be  for  unconditional  payment  of  money,  8088. 
payee  of,  must  be  ascertainable,  when,  8089. 
may  be  in  alternative,  8090. 
date  of,  8091. 
may  contain  pledge,  8092. 
must  not  contain  other  contract,  8093. 
may  bear  any  date,  8094. 
different  species  of,  8096. 
interpretation  of,  as  to  time  of  payment,  8009. 
Interpretation  of,  as  to  place  of  payment,  8100. 
interpretation  of,  when  payable  to  order,  8101. 
interpretation  of,  when  payable  to  fictitious  person,  8108 
interpretation  of,  when  issued  unindorsed,  8102. 
when  and  for  what  presumed  to  be  made,  8104. 
indorsement  of,  defined,  SiQS. 
indorsement  of,  how  to  be  made,  8109. 
indorsement  of,  may  be  made  on  separate  paper,  when,  83101 
indorsement  of,  general,  defined,  3112. 
indorsement  of^general,  how  made  special,  8114. 
Indorsement  of,  special,  defined,  3113. 

indorsement  of,  special,  how  may  destroy  negotiability,  8116. 
indorsement  of,  implied  warranty  of,  8116. 
indorsement  of,  before  delivery  to  payee,  effect  of,  8117. 
indorsement  of,  without  recourse,  effect  of.  3118-^119. 
indorsement  of,  gires  privity  to  contract,  3120. 
indorsement  of,  without  consideration,  when  binding,  Si25L 
indorsement  of,  in  due  course,  defined,  3123. 
indorsement  of,  in  due  course,  rights  conferred  by,  8124. 
indorsement  of,  in  due  course,  of  instrument  in  blank,  81!^ 
presentment  ol,  for  payment,  not  necessary  to  charge  principal| 

presentment  of,  how  made,  8181. 

apparent  maturity  of,  defined,  8182. 

surrender  of,  or  proof  of  loss  &c.,  may  be  required  on  paymMl 

of,  3137. 
dishonor  of,  defined,  8141. 
how  extinguished,  8164. 
implied  warranty  on  sale  of,  1774. 
duties  of  agent  employed  to  collect,  2021 
Be«  Bank  Notu  ;  Bill  op  Exchanok  ;  Cebtificatx  of  Deposit  ,  <l9kOE^ 

P&OMISSOET  NOTJBS.  ~ 


158  IHDSX. 

tfon-JUBiDMirr,  stock  of,  how  tzmnofvrred,  §  326. 

ali«n  inheriUng,  when  miut  claim  inheritance,  672. 
NoTAST  PuBUO,  may  take  acknowledgment  or  proof  in  the  State,  lUKL 

may  take  acknowledgment  or  proof  out  of  the  State,  1182. 

may  take  acknowledginent  or  proof  out  of  the  United  Stale*,  1181 

offer  of  performance  must  be  made  to,  when,  1488. 

negotiable  instrument  must  be  presented  to,  when,  818L 

bill  of  exchange  payable  at  office  of,  when  8176. 

bill  of  exchange  must  be  presented  tOjWhen,  8186. 

bill  of  exchange  protested  by,  when,  8226. 

protest,  how  made  by,  8227. 

making  protest,  may  give  notice  thereof,  8281. 
|r«n.    See  NsooTiABLBlNSTamuKT;  Phoxissoet  Nors. 
iniCB  actual,  defined,  18. 

eonstructire,  defined,  18-19. 

filing  inTentory  of  wife-s  proper^,  as,  166. 

to  be  giTen  to  stockholders,  of  meottng  to  eoDtinae  eorpocate  es 
istence,  287. 

of  meetinjg  of  corporation,  802. 

of  assessment  of  stock,  835. 

of  delinquent  assessment,  887-839* 

to  tenant  at  will  to  quit,  789. 

effect  of  such,  790. 

of  intention  to  re&iter,  791. 

not  necessary  before  action,  798. 

term  of  lease  changed  by,  827. 

rights  of  purchaser  fbr  value  without,  866,  869. 

record  of  instrument,  as,  1213. 

unrecorded  Instrument  valid  as  between  parties  with,  1217. 

certain  instruments  not  to  be  avoided  against  purchaser  with,  12n 

of  appropriation  of  water,  1416-1416. 

of  selection  of  one  of  several  alternatives  to  be  given,  1449. 

of  selection  of  place  of  delivery  to  be  given,  1766. 

of  adverse  claim  to  deposit,  to  be  given  to  depositor,  1826. 

depositary  must  give,  of  deposit  to  real  owner,  1826. 

depositary  must  give,  of  sale  of  deposit  in  danger  of  perishing 

duty  of  gratuitous  depositary  ceases  upon,  1847. 

finder  must  give,  of  thing  found,  1866. 

innkeeper  exempted  from  liability  by  gfiving  certain,  1880. 

hiring  terminated  by  what,  1934. 

tenant  must  give  landlord,  of  adverse  proceeding,  1949. 

hirer  of  real  property  may  repair  iJter,  1942. 

hirer  of  personal  property  may  repair  after,  1957. 

certain,  terminates  employment,  1996, 1999. 

of  arrival  of  freight,  to  be  given  to  consignee,  when,  2120. 

nf  storage  of  freight,  to  be  given  to  consignee,  when,  2121. 

trustee  must  give  beneficiary,  of  acquisitton  of  adverse  interesfei 

2233. 
to  principal  or  agent,  when  deemed  to  the  other,  2832. 
of  renunciation  of  partnership,  relieves  partner  from  liability,  311 
Personal,  of  dissolution  of  partnership,  when  necessary,  2168. 
by  change  of  name  sufficient,  2464. 
of  dissolution  of  special  partnership,  2509 
of  loss  under  iusuranoe,  must  be  given,  2688. 
of  loss  under  insurance,  defects  In,  how  waived,  2686. 
ot  loss  ondttr  insurance,  delay  in,  how  waived,  2688.    jq[^ 


589 


Volioe,  abandonment  of  ship  to  faunzer  mad«  by,  f  2721. 

requisites  of  such,  2722. 

of  transfer  of  life  insurance  policy,  not  necessary,  wbmt  27tf 

of  principal's  default,  guarantor  not  entitled  to,  2808. 

to  writer  of  letter  of  credit,  when  necessary,  2866. 

recording  assignment  of  mortgage  operates  as,  2936. 

certain,  to  be  giren  before  sale  of  pledged  property,  8003. 

of  sale  of  pledged  property  may  be  waived,  8003.  

to  carrier  or  depositary,  necessary  to  stoppage  in  transit,  BOVi 

of  dishonor,  to  be  given  to  indorser,  8116. 

of  dishonor,  by  whom  to  be  given,  3142. 

of  dishonor,  form  of.  8143. 

of  dishonor,  how  to  be  served,  8144. 

of  dishonor,  how  served  after  death  of  indorser  &e.,  8146 

of  dishonor,  given  in  ignorance  of  death,  valid,  3146. 

of  dishonor,  at  what  time  to  be  given,  3147. 

of  dishonor,  when  to  be  mailed,  3148. 

of  dishonor  by  agent,  need  only  be  given  to  principal,  8149 

of  dishonor  by  party  charged  with,  time  allowed  for,  8160. 

of  dishonor,  enures  to  benefit  of  other  parties,  816L 

of  dishonor,  when  excused,  8156-3157.  3^. 

of  dishonor,  delay  in,  when  excused,  ol68. 

of  dishonor,  may  be  waived,  8169. 

of  protest,  waiver  of,  3160. 

of  dishonor,  acceptor  for  honor  entitled  to,  8206 

of  dishonor,  acceptance  for  honor  does  not  excu0ej82O7. 

before  abatement  of  nuisance,  when  necessary,  3608. 
KoTAlloif,  defined,  1630. 

how  made,  1531. 

a  contract,  1632. 

rescission  of.  1638. 
Ndiianox,  defined,  8479. 

nothing  authorized  by  statute  to  be  deemed,  3482. 

liability  of  successive  owners  of,  8483. 

abatement  of,  does  not  prejudice  claim  for  damages,  8484 

dekned,  8480. 

not  legalised  by  lapse  of  time,  8490. 

remedies  against,  3191. 

indictment  or  information  against,  how  r^ulated,  Stft. 

when  private  person  may  sue  upon,  3493. 

may  be  abated,  by  whom  and  how,  3494-^96. 

defined,  8481. 

remedies  against,  8601 

may  be  abated,  by  whom  and  how,  3602. 

only  upon  notice,  when,  3608. 

&ATH,  defined,  12. 

person  solemnizing  marriage  may  administer,  72. 

person  taking  acknowledgment  authorised  to  administsr  ISU 
ftnieATiOM,  minor  cannot  disaffii-m  certain,  37 

defined,  1427.  ^  i 

how  created  and  enforced.  1428.  gitized  by  V^OOg IC 

rules  for  interprotatioi:  oi,  1429 

kinds  of,  1430. 


MO 


-_. ^  Jofait,  S  1481. 

contribution  between  joint  parties  to,  1482. 

when  conditional,  1484. 

conditional,  speciee  of,  1486. 

conditional,  what  must  be  done  before  enforcing,  1 

conditional,  when  performance  of  excused,  14M. 

conditional,  when  conditions  of  Toid,  1441. 

conditional,  inyolving  forfeiture,  how  interpreted,  1411. 

subject  of  ownership,  656. 

how  far,  good  consideration,  1606. 

implied  warranty  on  sale  of  written  executory,  1774. 

not  implied  from  creation  of  lien,  288L 

specific  performance  of,  2884. 

transfer  of  burden  of,  1457. 

transfer  of  right  of,  1458. 

alternative,  who  has  right  of  seleoticm,  1448. 

altematire,  right  of  selection,  how  lost,  1449. 

alternative,  indivisible,  1450. 

alternative,  effect  of  nullity  of  one  or  more,  146L 

when  runs  with  the  land,  1460. 

specific  performance  of,  compelled,  8884. 
Mxtmetion  of^ 

by  performance.    See  PxaroBMAHCB. 

by  offer  of  performance.    See  OwrwM  of  Psepormahcs. 

by  prevention  of  performance.   See  Pmanxmos  or  PxBiOBMAaoA 

by  accord.    See  Acooan. 

by  vovation.    See  Novation. 

by  release.    See  Rkubahb. 

by  rescission.    See  Rkscission. 

created  by  contract.    See  Conteact. 
Jmpo$ed  by  Law, 

to  abstain  from  injury,  1706. 

to  compensate  for  deceit,  1709. 

to  rentore  thing  wrongfully  acquired,  1712. 

to  restore  thing  uppn  demand,  1718. 

to  restore  thing  without  demand,  1718. 

to  compensate  for  n^ligenca,  1714. 
See  Aobnct;  Oakriaqb  ;  Dbposit;  Ezghahob;  Guaeaxtt;  HniM 

iNDEMNrrr ;  Imsubancs  ;  Lun  ;  Loan  ;  NMonABU  iNnftQimnr 

Paetnuiship;  Skbvicb. 
OOOUPANCT,  property  may  be  acquired  by,  1000. 

Utle  by,  1006. 
OoouPATiOM.    See  Posssssion. 

fton  FsLLows  Association,  may  hold  how  much  real  estate,  696. 
itraa  OP  PsaroBMANCB,  pames  title  to  personal  property  under  •zee«toi| 
apreement  of  sale,  1141. 

extinguishes  obligations,  1485. 

extinguishes  obligations  for  payment  of  monsy,  whoi,  IfiOOl 

nortial,  has  no  effect,  I486. 

by  whom  made,  1487. 

to  whom  and  where  made,  1488. 

where  may  be  made,  1489. 

when  must  be  made,  1490-1491. 

with  compensation  for  delay,  1492.  r^  i 

to  be  niade  in  good  faith,  1493.  Digitized  by  CjOOQIC 

must  be  uncoadllioniii,  1494  ^ 


INDEX.  561 

Iffer  of  Performance,  must  be  unconditional,  except  aa  to  eectain  eMMb 
§  1498. 

party  making,  must  be  able  to  perform,  1486. 

receipt  may  be  required  upon,  1499. 

objections  to  mode  of,  when  waiTed,  1501. 

thing  offered  need  not  be  produced.  1496. 

thing  offered  to  be  kept  separate,  1497. 

thing  offered,  title  to,  vests  in  creditor,  1502.  ' 

thing  offered,  how  to  be  kept  by  debtor,  1508- 

effect  of,  on  accessories  of  obligation,  1604. 

what  excuses,  1611. 

effect  of  refusal  to  accept  performance  made  before,  1516. 

lien  may  be  redeemed  by,  2906. 

ability  and  willingness,  when  equivalent  to,  8190. 

of  concurrent  conditions,  when  necessary,  1489. 

of  concurrent  oonditiona,  when  excused,  1440. 

by  any  person  exonerates  surety,  2889. 
OFncB,  lawful  exercise  of,  not  to  be  restrained  ty  injunction,  8438. 

See  OFPioxa. 
Oftioxs.    See  Acknowlkdqmxmts,  1180-1183, 118^-1198. 

what  may  solemnize  marriage,  70. 

duty  of  solemnizing  marriage,  72-78. 

town  may  bind  out  child  to  apprenticeship,  269. 

lien  of,  3067. 

not  to  be  restrained  by  injunction  from  exercising  his  lawful 
functions,  8428. 

powers  of,  1201. 

taking  proof  of  execution,  must  have  proof  of  idenHty  of  wit* 
ness,  1196. 

taking  proof  of  execution,  evidence  must  prove  what,  to,  1199. 

taking  proof  of  execution,  authorized  to  do  certain  things,  1201 
Of  Corporations.    See  Corporations,  286,  296,  808,  808, 810. 

election  to  fill  vacancies,  818. 
Option,  how  waived,  1756. 

of  beneficiary  in  case  of  breach  of  trust  by  trustee,  2287. 

of  payee,  as  to  class  of  payment  of  negotiable  instrument,  8C90L 
Obal,  transfer  may  be,  when,  1052. 

what  contracts  may  be,  1622. 

negotiations  superseded  by  writing,  1625. 

contract  in  writing,  may  be  altered  by,  1698. 

represeutatim  in  insurance  may  be,  2571. 

will  may  be,  1276. 

declarations  of  auctioneer  cannot  modify  written  condlticna  ol 
sale,  1795. 
Orphans,  corporations  may  he  formed  for  maintaining  asylums  foe  aiip> 
port,  &c.,  of,  286. 

in  asylums,  may  be  apprenticed,  how,  265. 

See  Act  of  March  7, 1874,  Appendix,  p.  478. 

(^anNSIBLE  AOENCT.      See  AOENCT. 

Obtknsible  AnxHORiTY.    See  Authority. 

Otrr-Insurance,  return  of  premium  on,  how  made,  2620. 

return  of  premium  on,  effected  by  simultaneoujpolieiea,  96S1 
return  of  premium  on,  by  successive  policies,  2622. 

See  Insurance.  C" r^r^n\o 

Iwiin,  who  may  be,  671.  a' '^^^  by  V^OOgie 

all  property  has  660. 


r  of .  what  the  Stele  IR,  f  670. 
alienfl  inheriting,  when  most  claim  as,  072. 
riffhts  of,  732. 

of  thing,  owns  its  products,  782. 
of  future  estate,  may  use  easement,  when,  806. 
of  dominant  tenement,  may  enforce  easement,  809. 
of  serrient  tenement,  may  recoror  land  subject  to  eatoDMat,  8M 
jofait,  defined,  68a. 
in  common,  defined,  686. 
in  partnership,  defined,  684. 

of  ship,  controversy  between,  how  determined,  964. 
delivery  of  deposit  to  joint,  how  made,  1827. 
in  real  property,  rights  of,  as  to  boundaries,  830-881. 
in  real  property,  rights  of,  entitled  to  everything  beneath  «^ 

above  it,  829. 
in  real  property,  rights  of,  to  lateral  and  subjacent  sui^rt,  883. 
In  real  property,  rights  of,  to  trees,  888. 
of  life  estate,  how  may  use  it,  818. 
duties  of,  840. 

of  estate  for  years  or  at  will,  rights  of,  819-820. 
mutual  obligations  of  coterminous,  841. 
rights  of  coterminous  to  support,  8i32. 
remedies  of,  for  injury  done  to  inheritance,  826. 
for  life  or  years,  effect  of  conveyance  by,  in  excess  of  his  ea 

tate,1108. 
thing  obtained  without  consent  of,  to  be  restored,  1712. 
depositary  to  give  notice  to  real,  of  thing  deposited,  1826. 
finder  of  lost  property  to  give  notice  to,  1866. 
of  property  found,  may  exonerate  himself  from  claim  of  1 

effect  of  insurance  by  part,  2600. 
may  recover  specific  property,  SSSf^ 
of  ship.    See  Sbip  Ownkr. 
twnrump,  defined,  664. 

what  may  be  the  subject  of,  666 

wild  animals,  when  the  subject  of,  666 

modification  of,  678. 

absolute,  defined,  679. 

qualified,  defined,  680. 

several,  defined,  681. 

joint,  defined,  683. 

In  pajrtnership,  defined,  684. 

in  common,  defined,  685-686. 

of  thing  formed  by  uniting  materials,  1029. 

conditions  of,  707. 

difiposition  of  income  during  suspension  of,  78d. 

termination  of,  739. 

suspension  of  absolute,  of  a  term  of  years,  770. 

of  product  of  the  mind,  980-981. 

of  trade-marks  and  signs,  991. 

of  good  will  of  business,  992. 

of  title  deeds.  994. 

of  fixtures,  lOia 

of  alluvion,  1014. 

Jrf  land  formed  by  sudden  removal  of  bank,  10MS:r^oalf> 

of  islands  in  navigable  streams,  1016.  ^W?e^5y^&OOgie 


IHDBX.  Mi 

IKngnhlp,  of  lilandfl  in  nnnitTigable  itrMunf ,  f  1017. 
of  iBlandB  f  onn«d  by  di^on  of  tteaam,  lOlS. 
of  abandoned  bed  of  stream,  1019. 

of  thing  formed  by  nnitinc  property  of  BeT«ral  ownenLl096»  UNI 
of  thing  formed  by  one  with  materials  of  another,  1098. 
of  water,  how  acquired,  1410. 
Under  of  loet  property  may  require  proof  of,  1866. 
See  Estates  ;  Imtuissts  ;  Pkopiktt 

Pabutt,  abdnction  of,  forbidden,  49. 

may  dispute  legitimacy  of  child,  196. 

obligation  of,  as  to  support,  &o.,  of  child,  196 

allowance  to,  for  support  of  child,  201. 

has  no  control  over  property  of  child,  202. 

remedy  for  abuse  by,  208. 

when  authority  of  ceases,  204. 

remedy  where,  dies  without  providing  for  support  of  ehild,  90i. 

when  liable  for  necessaries  furnished  child,  207. 

when  not  liable  for  necessaries  furnished  child,  206. 

may  relinquish  services  and  custody  of  child,  211. 

rieht  of,  to  determine  residonce  of  child,  213. 

when  may  bring  action  for  exclusive  control  of  child,  109. 

when  neither,  has  superior  right  to  control  of  ehild,  198. 

abandoning  child,  presumptively  relinquishes  oonteol  of  It,  211 

consent  of  both  necessary  to  adoption  of  child,  224. 

appointment  of  guardian  by,  241. 

consent  of,  when  necessary  to  apprenticeship  of  child,  266. 

abandonment  of  child  by.    See  Act  Blarch  7, 1874,  Appendix,  p. 

PlBBiTT  AKD  CHILD,  marriage  between,  incestuous.  69. 
legitimacy  of  relationship  between,  193-194. 
reciprocal  duties  of,  as  regards  maintenance,  206. 
contract  of  either  avoided  by  menace  or  duzeis  of  the  oHmt. 
1669-1570. 
pAsnAL  Pkefokhance,  effect  of,  1477. 
offer  of,  void,  1486. 
when  extinguishes  obligation,  1624. 
malces  oral  contract  of  sale  valid,  when,  1741. 
effect  on  guarantor  of  principal's  accepting,  2822. 
does  not  extinguish  lien,  2912. 
pABTinox,  of  dominant  tenement.  807. 

Partksb.    See  Fartne&ship,  2395-2897, 2402-2406, 2410-2418, 2417, 2418, 
2444-2445.  i         »        f 

General     See  Partnership,  2428-2431,2486-2488,  2442-2444,  2449. 
2461-2454,2458-2460,2462. 
change  of  interest  of,  does  not  avoid  insurance,  2567. 
effect  of  insurance  by  one  of  several,  2590. 
fecial.    See  Partnership,  2489-2494,  2501-260a  2606, 2610. 
Mining.    See  Partnership,  2511-2516,  2619. 
f  Amnn&SHip,  interest,  wliat,  684. 

rartuers  may  agree  not  to  carry  on  same  business  in  city  or  fowl 

after  dih^iolution,  1675. 
defined,  2896. 

Joint  use  of  sh^ pdoes not  create^  2896. 
formation  of ,  2897.  ,^,gni,ed  by  GoOqIc 

property,  defined,  2401  o 


INDEX. 


Itete«n1dp, 


lUp,  proiMrtT,  partn«n*  interest  la,  $  2402. 
property  to  be  applied  to  partnership  debts,  2108. 
property,  what  is  presumed  to  be,  2406. 
ol  partnei 


property,  power  of  partner  orer  in  liqoldatlon,  2ML 

profits  and  losses,  how  divided,  2408. 

when  agreement  for  diTision  of  losses  implied,  210*. 

oblisatlonB  of  parties  to,  2410. 

parnes  to,  must  act  in  cood  faith,  2411. 

parties  to,  to  account,  2412. 

parties  to,  to  serre  without  compensation,  2418. 

renunciation  of,  2417. 

effect  of  renunciation  of,  2418. 

defined,  2424. 

bound  by  a  deeirion  of  the  majority,  2428. 

each  partner  agent  for.  2429. 

authority  of  partners  in,  2480. 

acts  in  bad  faith  do  not  bind,  2481. 

profits  of  partners  belong  to,  2486. 

partner  in,  may  not  engage  in  eertidn  business,  2488 

partner  in,  may  engage  in,  what,  2487. 

partner  in,  must  account  for  certain  profits.  2488. 

partner  in,  liability  of,  to  third  persons,  2442. 

partner  in,  liability  of  one  held  out  as,  2444. 

partner  in,  who  liable  as,  2445. 

duration  of,  2449. 

total  dissolution  of,  24fi0. 

partial  dissolution  of,  2461. 

partner  entitled  to  dissolution  of,  2462. 

notice  of  termination  of,  2468. 

notice  of  change  of  name  of,  2464. 

partners*  powers  after  dissolution,  2468. 

liquidation  of,  who  may  act  in,  2u9. 

liquidation  of,  who  may  not  act  in,  2400. 

liquidation  of,  powers  of  partners  acting  in,  2461-2401 

use  of  fictitious  name  in,  2466. 

name  of  foreign,  2467. 

certificate  of,  to  be  filed.  2468. 

new  certificates  required  on  change  of,  2469. 

recister  of,  kept  by  county  clerics,  2471. 

how  formed,  2477. 

of  what  to  consist,  2478. 

certificate  of,  must  be  made,  2479. 

certificate  of,  must  be  acknowledged  and  recorded.  2480 

liability  of  partners  in  making  false  certificate,  2481. 

affidavit  as  to  sums  contributed  to,  2481. 

requisites  for  forming,  2482. 

certificate  to  be  published,  2488. 

affldarit  of  publication  of  certificate  to  be  filed.  2484. 

ivnewal  of,  2485. 

who  may  transact  buslnees.of,  2488. 

!£!2J*/  P*'^"  *°.  ">*y  Inreetittte  and  advise,  2490. 

special  partner  may  lend  to  and  reeover  from,  2401. 

rS^!*J  P*!*°«'  °»»«*  no*  withdraw  capital  from,  2466,  24fl 

special  partner  may  rweive  profits  fc3m,  2^.    »  *^«  ^" 


M' 


gSk  iral  pftrtn«n  may  roe  uui  be  fa«d  alone,  $  StfS. 

tnirffer  of,  with  intent  to  prefer  creditors,  Toid,  2190. 

liaMIity  of  general  partner  in,  2500. 

liability  of  special  partner  in,  2&01. 

liability  of  special  partner  for  unintentional  act,  2602. 

who  may  question  existence  of,  2608. 

how  made  general,  2607. 

how  new  special  partners  may  be  admitted  to,  2606. 

dissolution  of,  2509. 

name  of  special  partner  in,  not  to  be  used,  when,  2610. 
MUning^ 

how  formed,  2511-2512. 

rights  of  members  of,  251^2615. 

how  effected  by  purchase  of  interest,  2616-2618. 

majority  of  control,  2620. 
pAiSEiTOKB.    See  Carrier,  2103.  2176,  2180,  2182-2186,  2187-2191,  VU 
Pastubb,  right  of,  a  serritude,  sOl. 
Pawnbroker.    See  Pledob  ;  Plkdoee  ;  Pledoe  Holder. 
Patxb,  under  negotiable  instrument  must  be  ascertainable,  8069. 

negotiable  instrument,  when  payable  to  fietitious,  SL08. 

option  of,  afl  to  payment,  3090. 

indorser,  when  liable  to,  3117. 
Patmirt,  of  money,  wife  cannot  make  contract  for,  167. 

defined,  1478. 

application  of  general.  1479. 

pecuniary  obligation,  how  extinguished  by  offer  of,  1609. 

effect  of  offer  of,  on  accessory  of  obligation,  1504. 

of  less  than  liquidated  debt,  effect  of,  1524. 

to  agent,  when  sufficient,  2335. 

when  necessary  to  claim  on  indemnity,  2778. 

of  negotiable  instrument,  mi^  be  made  to  whom,  816A 

payee's  option  as  to  class  of,  8090. 

for  honor,  may  be  made,  whenjSiOS. 

for  honor,  how  may  be  made,  3205. 

for  honor,  must  be  accepted,  8204. 

for  honor,  how  made  in  case  of  foreign  bill,  8288. 

time  and  place  of,  8099-3100. 

See  Offer  of  Perform anok  ;  Psrforhancs. 
Pktal  Law,  specific  relief  not  granted  to  enforce,  3869. 
PSNALTT,  surety  not  liable  beyond,  2836. 

specific  relief  not  granted  to  enforce,  3369. 

contract  with,  may  be  specifically  enforced,  8389. 
PfesrOBM ANCS.    See  Debtor,  1473-1474, 1476, 1479, 1512, 1514. 

when  time  appointed  for  falls  on  a  holiday,  11. 

grantee' entitled  to  grant  on,  of  precedent  conditions,  lllO 

of  condition  precedent,  when  necessary,  1439. 

of  condition  precedent,  when  excused,  1440. 

to  one  joint  creditor  sufficient,  1476. 

effect  of  partial,  1477. 

when  called  payment,  1478. 

offer  of.    See  Offer  of  Performanoi. 

when  pledgee  must  demand,  8001. 

how  excused,  1611. 

effect  of  refusal  to  accept,  before  offer,  1616.    GqOqIc 

of  conditions  of  proposal,  is  aeceptance,  1684.  o 


§66  IKBSK. 

Pirfonnanee,  of  eontnet,  time  of,  §  1657. 

extension  of  time  of,  how  effected,  IttS 

snrety  may  compel,  by  principal,  2816. 
ffeBMHAL  Pkopibtt,  term  includes  what,  14. 

defined,  668. 

application  of  interestB  in  real  property  to,  701. 

bv  what  law  governed,  946. 

ox  wife  to  be  stated  in  an  inventoiy,  166. 

non-negotiable  written  contract  for  deliTery  of,  tBanaferald*,  140 

contract  for  sale  of,  1789. 

lien  of  seller  of,  8019 ;  lien  for  services,  8061. 

real  property,  when  deemed,  1388. 

accession  to.    See  Acgsssioh. 

transfer  of.    See  Sals;  TiUHsm. 

beqnestof.    SeeBsQUSST;  Lsoaot;  Will. 

mortgage  of.    See  Mortqaos,  Pjibsoiial. 

pledge  of.    See  Plxsgs. 
Pkuomal  Relations,  right  of  protection  from  injury  to,  48. 

rights  of,  forbid  what,  49. 

right  to  use  force  to  protect,  60. 
FlBSOHAL  RspftssBirrATiTSS,  of  minor,  when  may  disaffirm  faSs  oonteaet,  fl 

property  of  intestate  passes  tOil384. 

to  distribute  property,  how,  1884. 

possession  of  legacy  obtainable  only  from,  1868. 

inventoiy  by  legatee  for  life,  when  to  be  delivered  to,  1866. 

of  seaman,  when  entitled  to  his  wages,  2062. 
See  SuoosssiON ;  Will. 
Peksomal  Bxosts,  defined  and  regulated,  48. 
PiRSOMS,  defined,  14. 
Pbesomb  or  UnsouND  Miin»,  term  includes  what,  14. 

custody  of,  82. 

when  cannot  contract.  88. 

when  may  contract,  89. 

powers  of,  whose  incapacity  has  been  adjudged,  40. 

when  civilly  liable  for  wrongs,  41. 

not  liable  in  exemplary  danuiges,  41. 

guardianship  of,  268. 
PmnoN,  of  judgment  creditor  to  have  homestead  apiaaiaed,  12M6 

such  to  be  verified,  1246. 

such  to  be  filed  with  county  olexk,  1247. 

copy  of,  to  be  served  on  claimant,  1248. 
l»i.KD«K.    See  Sals,  3000, 3011. 

defined,  29S6. 

what  to  be  deemed,  2987. 

lien  of,  dependent  on  possession.  2968. 

covers  increase  of  property,  2989. 

lienor  may,  to  extent  of  lien,  2990. 

factor  may  not,  property  of  his  principal,  2868. 
when  vaJid  against  real  owner,  2991 
lender,  defined,  2992. 
pledge  lender  may  withdraw,  when,  2904. 
holder,  defined,  W93. 
holder,  obligations  of,  2996. 
further,  when  may  be  required,  2990. 
aale  of,  may  be  made  when ,  aOuO-SOO»,  nr^r^r^]r> 

m§j  be  contained  in  nef(otiable  instruadiiil^mr^S^^ 
See  Urns. 


IHDSX.  06" 

fuMXB.    See  PusMS,  $§  2988,2988,  2090;  Sau, 8000-8009  9M-mO$, 

800S-8011. 
PuDOi  Holder,  defined,  2d98. 

must  enforce  all  rights  of  pledgee,  2996. 

for  reward,  cannot  exonerate  himself,  2996. 

for  reward,  liable  as  depositary  for  rewar(L2B97. 

gratuitous,  may  exonerate  himself,  how,  ^96. 

gratuitous,  liable  as  gratuitous  depositary,  2996. 

can  purchase  from  pledgor  only,  3010. 
rUDdOB.    See  Pledob,  29&,  mi,  WH,  2999;  Sau,  8001-8004,  8007, 

8008  8010 
h>U0T  or  INSUBANOB.    See  Iksubabcb,  2576, 2586-2593, 2605-2690,  2606, 

2607-2008.  2612,  2764. 
^i SESSION,  summary  proceedings  for,  of  property,  794. 

owner  of  property  in  adrerse,  may  transfer  his  title,  1047. 

means  of  obtaining,  of  persona,  property,  necessary  to  ralidlty 
of  gift,  1147. 

of  legacies,  how  obtained,  1833. 

damages  for  unlawful,  of  real  pToperty^^34. 

quiet  coyenant  of,  implied  in  hiring,  1927, 1956. 

lease,  wh«ai  renewed  by  continued,  1946. 

mortgagee  not  entitled  to,  2927. 

mortgagee,  when  may  talse,  of  mortgaged  personal  property,  MS 

change  of,  necessary  in  pledge,  2988. 

when  transferred  for  security  deemed  pledged,  2987. 

bottomry  lien  is  independent  of,  3027. 

Tmdor'B  lien  is  independent  of,  8046. 

seller  of  personal  property,  lien  dependent  on,  3049. 

purchaser  of  real  property,  lien  independent  of,  3050 

lien  for  serrices  is  dependent  on,  3051 

factor's  lien  is  dependent  on,  8053. 

banker's  lien  is  dependent  on,dCW&4. 

shipmaster's  lien  is  independent  of,  3055. 

seaman's  lien  Is  independent  of.  S0b6. 

oflftcer's  lien  is  dependent  on,  8057. 
fOWBB,  minor  cannot  glye  delegation  of,  33. 

person  of  unsound  mind  cannot  giye  delegation  of,  4Q. 

what  express  trusts  are  yalid  as,  860 

when  deemed  part  of  the  security,  858. 

execution  of.  860. 

of  sale,  may  be  conferred  by  mortgage,  2932. 

of  reyocation  of  trust,  may  be  reseryed  by  trustor,  2280 

married  women  may  be  yested  with,  714. 

general  and  beneficial,  to  married  women,  917. 

absolute,  unaccompanied  by  trust,  giyes  estate  in  fee,  whea 

of  reyocation,  when  deemed  executed,  1229-1230. 
to  deyise,  how  executed  by  terms  of  will.  1830. 
to  executor,  to  appoint  axecutor,  yoid,  1872. 
fowsB  or  Attobnbt,  by  married  woman,  yoid  unless  acknowledged,  hem 

duties  of  gratuitous  employee  accepting,  1977. 

to  execute  mortgage,  requisites  of,  2983. 

See  Attobnet  in  Faot,  1095, 1216. 
^BMOiimoir,  title  by.  1007. 
FitfVMPnoN,  establisned  by  lapse  of  time  in  diyorce  126 


,y  Google 


MM  INDBZ. 

FNramptlon  waeh  may  be  lebatted,  §  126. 

of  actual  residenee  does  not  apply,  fax  divoroa,  129. 

of  legitimacy  of  children,  193. 

of  relinquishment  of  control  of  child,  211. 

of  wilful  default  in  case  of  collision  of  ship  frombreaidh  «<raki 

072. 
of  time  of  delivery  of  gnmt,  1065. 
that  fee  simple  title  passes,  ll05. 
that  gift  is  made  in  view  of  death,  1150. 
that  an  obligation  is  joint,  and  not  seveial,  14S1. 
of  intent  to  extinguish  contract,  when  it  is  cancelled,  1680. 
of  term  of  hiring  servant,  2010-2011. 

of  undue  influence  in  certain  case,  on  the  part  of  trustee,  Wb, 
that  certain  property  Ls  partnership,  2106. 
that  representation  in  insurance  refers  to  time  of  completia| 

contract.  2577. 
that  person  insured  has  knowledge  of  prior  loss,  2671. 
of  actual  loss  of  ship,  2706. 
of  consideration  in  negotiable  instrument,  8104. 
tlxat  bill  of  exchange  is  dishonored,  3133. 
that  creditor's  retention  of  part  of  performance  is  not  toIvb 

tary,  1477. 
that  written  instrument  imports  consideration,  1614. 
as  to  origin  of  uncertainty  in  contract,  1649, 1654. 
that  depositary  is  in  fault  in  certain  cases,  1888. 
as  to  term  for  which  real  property  is  hired,  1948. 

that  hiring  of  real  property  is  renewed,  1945.  

that  certificate  of  8hipm.^8ter  in  faror  of  sailor,  &c.,  is  true,  20GB 
that  managing  owner  of  ship  has  no  compensation,  2072. 
as  to  damages  caused  by  conversion  of  personal  property,  8886. 
as  to  adequacy  of  damage  as  relief,  3387. 

in  revising  contract,  that  parties  intended  a  fair  agreement,  8400 
PlIVGlPAL,  incident  passes  by  transfer,  1084,  3540. 

attorney  in  fact  executing  instrument  must  subscribe  name  of 

1095. 
factor  must  follow  directions  of,  2027. 

consent  of,  necessary  to  release  of  factor  from  liability,  2080. 
]n  Agency.    See  Aoent,  2021,  2295,  2304,  2306, 2806,  2812,  2815, 2390 

2330-2387,  2843-2344,  23M)-2361, 2356. 
Guaranty.    See  Guarantor,  2788,  2807-2810,  2819,  2828-2825. 
Suretyship.    See  Surett,  2832,  2845,  2846-2848,  2850. 
pBOOEEDnfOS,  commencedr  prior  to  taking  effect  of  Code  not  affected  b| 

it.  6. 
Pbooxss,  defined,  14. 
PlOMMS,  of  marriage,  when  neither  party  bound  by,  63. 

of  adult  ciiild  to  pay  for  necessaries  f umiwed  parent,  valid,  XM 
of  marriage,  damages  for  breach  of,  3319. 
false,  when  fraudulent,  1572,  1710. 

representation  in  insurance  as  to  future,  when  deemed,  2574. 
to  answer  for  third  person,  2794. 

to  accept  bill  of  exchimge,  when  equivalent  to  aceeptaaoe,  819T 
fteimsoBr  NoTS,  defined,  8244.  * 

apparent  maturity  of,  3146.- 

instrument  in  form  of  bill  of  exchange,  when  deemed,  M*» 

bill  of  exchange,  when  converted  into,  8246. 

eertain  prorisions  applicable  to,  8247. 

uigitized  by  Google 


Promlflfory  Note,  effect  of  delay  in  presentment  of,  §  8248. 

See  NB90TIABLB    IKSTBCMBKT. 

floor,  of  consent  to  marriage,  liow  made,  67 
of  illegitimacy,  how  made,  196. 
of  nuiicnpatiTe  will,  1289. 

of  destruction  or  cancellation  of  will,  how  made,  ISM 
of  ownership,  finder  may  require,  1806.  ^^ 

of  loss  of  freight  in  certain  case,  what  required,  2202. 
Of  Tnstruments/or  Record.    See  Ackhowudoxknts,  1160, 1180-1181 

1189,  1191-1193, 1201-1202, 1206. 
by  other  than  subscribing  witness.  1198. 
subscribing  witness  to  be  personally  known,  1196. 
witness  to  prore  what,  1197. 
handwriting  may  be  proved,  when,  1198. 
certificate  of  eounty  clerk,  where  taken  by  Justice  of  the  psiet 

1194. 
certificate  of  ofileer  on,  1200. 
eyidence  must  prove,  what,  1190. 
action  to  obtain,  1208. 
0/  Loss  Under  Insurance.    See  Insuranob,  2624-2687. 
hMPBBTT,  term,  includes  what,  14- 

of  husband  and  wife,  may  %e  used  to  support  children,  148. 

of  husband  and  wife,  contrvits  concerning,  168. 

of  husband  and  wife,  may  be  held  in  joint  tenancy,  &e.,  16L 

of  husband  and  wife,  rights  of,  how  governed,  177. 

community,  defined,  164,  687. 

community,  when  court  may  resort  to,  for  alimony,  141 

community,  power  of  husband  over,  172. 

community,  disposition  of,  on  divorce,  146-148. 

community,  distribution  of,  on  ^eath  of  wife,  1401 

community,  distribution  of,  on  death  of  husband,  1402. 

separate,  of  husband  and  wife,  may  be  used  for  support  of  child, 

148. 
separate,  of  husband,  when  liable  for  alimony,  141. 
separate,  of  husband,  defined,  168. 

sepai-ate,  of  husband,  when  not  liable  for  wife's  debts,  170. 
separate,  of  wife,  defined,  162. 
separate,  of  wife,  she  may  dispose  of  it  without  consent  of  hsf 

husband.  162. 
separate,  of  wife,  when  liable  for  support  of  husband,  176 
separate,  of  wife,  not  liable  for  husband's  debts,  171. 
separate,  of  wife,  husband  cannot  select  homesteal  out  of  1238 
of  child,  parent  has  no  control  over,  202. 
of  child,  when  liable  for  parent's  support,  20L 
corporations  may  acquire,  260. 
In  general,  664. 
nature  of,  664. 
ownership  in,  666,  678. 
is  eitlier  real  or  personal,  667. 
xeal,  defined,  668. 
personal,  denned,  668. 
always  has  an  owner,  669. 
what,  owned  by  the  State,  670. 
who  may  own,  671. 

aliens  Inheriting  when  must  assert  claim,  63S 
ittt«i«st!u«.678  Cc^c^ciX^ 


f9t  ni]>u. 


L,  §J  701-7Ca 

in,  alwoliita,  «T». 

intereetB  in,  q[aaliaed,  080. 

intarerta  in,  MTcnO,  68L 

InterastB  in,  joint,  688. 

Intereflts  in,  putncidiip,  884 

ln'«reste  in,  in  common,  685-686. 

Intereat  in,  present,  689. 

future  intereeta  in.  680. 

perpetoAl'  interest  in,  69L 

fatoie  interests  in,  riglits  of  posthnmotui  ehildx«B  te,  0H. 

fatuxe  interests  in,  pass  by  trsnsfer,  689-700. 

futoie  interests  in,  none  unless  specified,  TOS. 

future  interests  in,  how  defeated,  738-740. 

future  interests  in,  wlxen  not  defeated,  741-742. 

future  interests  in,  rested,  694. 

future  interests  in,  contingent,  606. 

future  interests  in,  etmtingent,  maj  be  altemattTe,  686 

future  intecesta  in,  contingent,  not  Toid  beoanae  impvobail 
697. 

Interests  in,  perpetual,  601 

interast  in.  limited.  682.  • 

conditional  ownenhip  in,  707. 

xeatrainta  upon  aUen&tion  of,  711,  716-716. 

accumul&ti<»is  of  income  of,  722. 

income  of ,  defined,  748.  

wliat  may  be  dispoeed  of  by  wiU,  1270, 1274. 

acquisition  of,  lOOQ-1001. 

acquisition  of,  by  oceupan<7.    See  OcouPAHOT. 

acquisition  of,  by  prescription.    See  PassoBipnoH. 

acquisition  of,  by  accession.    See  Accession.     

acquisition  of,  by  transfer.    See  G&ast  ;  TKASsnE. 

acquisition  of,  by  succession.    See  Suookssioh. 

acquisition  of,  by  will.    See  Will. 

partnership.    See  Paktmuship.  

See  EsTATBs;  PnaoiiAL  Pbopxrtt;  Powxes;  Bsai  Fionarr 
SuTinmKs;  Usss  and  Trusts. 
pioRST.    See  Bxu  or  Sxchasgk,  8225-3282. 
PUBUOAnoN  FBinusBD.    See  Libsl. 
pOBflHASN  IIONXT.  nrioxity  of  mortgage  for,  2808 

tien  for,  3046. 

KmoBAsni,  highest  bidder  to  be,  at  auction  sale  of  delinquent  atoek,  Stt 
when  ecrporatfon  may  be,  at  auction  sale  of  delinquent  atook 

348. 
of  franchise  of  corporations,  powers  and  duties  of,  889-380. 
heirs  of  tenant  for  life  when  take  aa,  779. 
resulting  trust  not  to  prejudice,  856.  ^    ^  ooa 

omission  to  declare  trust  in  conreyance,  how  affects,  oH. 
grant,  how  far  concJudye  aa  to  be,  1107. 
bistruments,  wlien  TOid  aeainst  subsequent,  1227. 
instruments,  when  not  void  against  subsequent,  1228. 
lights  of,  from  doTisee  not  impaired  by  his  conTeyaaoa^  iriia* 

when  sale  of  personal  property  void  aoainst,  8440. 

•hen  mortgage  of  personal  property  Toid  af&inat  Bubaequanti  Mil 


IKDBX  S7\ 

FarchaMr,  Pls^me  oannot  be,  from  plcdfoi,  except  bj  direct  dealing 

of  real  property,  lien  of,  8060. 

certain  transfers  yoid  a^^nst.  8440. 

lien  of  seller  or  bujer  not  Talid  against  subsequent,  8048. 

grant  by  person  having  power  of  revocation  operates  as  revoe^ 

tion  in  favor  of i  when,  1229. 
See  Qrakt  ;  Ihouxbiunosb  ;  Leih  ;  MoaNias ;  Noticb  ;  Rkcoe» 

INO. 

Bahroad  Cobpoiutioks.    See  CoBPORAnoirB,  286,  291, 294, 296,  464- 4IW 

465-491 
Street,    See  Cokpobations,  286,  291, 294, 497-499, 601-«U 
RsAL  EsTATi,  term  includes  what.  14. 
Ekal  Pbopbrtt,  term  includes  wnat,  14. 

defined,  658. 

Interests  in,  how  denominated,  701. 

application  of  interests  in.  to  personal  property,  701. 

limitation  on  leases  of  certain,  717-718. 

general  provisions  concerning,  765. 

estates  in,  761. 

estates  of  inheritance  in,  762. 

fee  simple  estates  in.  762. 

fee  tail  abolished,  76»3. 

contingent  remainders  in,  764. 

freehold,  765. 

chattels  real,  or  estates  for  years  In,  765. 

chattel  interests,  or  estates  at  will  in,  765. 

estates  in,  for  the  life  of  third  person,  766. 

future  estates  in,  767. 

estates  in  reyersion  in,  768. 

estates  in  remainder  in,  769. 

creation  of  remainders,  future  and  contingent  in,  778. 

limitation  of  successive  estates  for  life  in,  774. 

remainders  on  estate  in^  775-776. 

estate  in,  for  life^  remainder  of,  777. 

burdens  and  servitudes  upon,  801-802. 

rights  of  owners  of,  829. 

rights  of,  in  respect  to  water,  818,  890. 

how  may  be  used  by  tenant  for  life,  818. 

how  may  be  used  by  tenant  for  years  at  will,  819-831 

remedies  of  grantees  for  rents  and  reversions  of ,821. 

remedies  of  lessor  against  assigns  of  lessee  of|822 

remedies  of  lessee  against  assigns  of  lessor,  828. 

remedies  on  leases  for  life,  for  rent  of,  824. 

rent  on,  how  recovered,  824-825. 

who  may  sue  for  injury  to  inheritance  Jn,  826. 

boundaries  of,  by  water,  830. 

boundaries  of.  by  ways,  881. 

lateral  and  subjacent  support  to,  882 

trees,  888. 

obligations  of  owners  of,  840. 

^nsut  for  life  in,  duties  of,  840. 

«ca»rmiuous  owner,  rights  of,  841. 

uses  and  trusts  in,  844.  ^^ 

ownership  of  instruments  affecting  tit^fgj^^flGoOgle 


(79  INDBX. 

■«ri  PMpertf ,  words  o(  inheritanee  not  necessary  to  pass  a  fee  in,  |  lOTS 

fee  simple  title  in,  when  presumed  to  pass,  1106. 

subsequently  acquired  title  to,  pasfies  by  operation  cf  law,  IICM 

instruments  affecting,  when  deemed  to  impart  nctifn  ox  con 
tents,  1207. 

lien  of  seller  of,  8046 

lien  of  purchaser  of,  8060. 

when  deemed  personal,  after  testator^s  death,  1888. 

agreement  for  sale  of,  1731, 1741. 

agreement  for  sale  of,  form  of  grant  in  execution  of,  1782. 

agreement  for  sale  of,  what  eorenants  required  by,  1733 

form  of  such  corenants,  1784. 

contract  for  sale,  1740. 

sale  of.    See  Salb. 

transfer  of.    See  Qrawt  :  TRAKsna. 

uses  and  trusts  in.    See  178X8  and  Tkusts. 

powers  in.    See  Powbrs. 

accession  to.    See  AoosssiOK. 

hiring  of.    See  Hi&iiro. 

mortgage  of.    See  Mobtoaoi. 
Rbohtbb,  court  may  appoint  to  enforce  alimony,  140. 
Rboobdbb.    See  RsooBniMa,  74, 166, 1169, 1172,  2m  2609,  2940,  2968. 

declaration  of  marriage  must  be  filed  with,  77. 

inrentoiy  of  wife's  property  to  be  filed  with,  166. 

selection  of  right  of  way  by  eorpoiation  to  be  transmitted  tc 

8n. 

city  or  county  may  take  proof  or  acknowledgment  of  iustrs 

ments,  1181. 
fees  of,  must  be  indorsed  on  all  instruments,  1166. 
Kmobdikg.    See  Mobtoagb,  2988-2986, 2940-29a,2%2, 2969-2968. 
of  marriage  ceriificate,  74. 
of  marriage  declaration,  76. 
of  inrentory  of  wife's  separate  property,  166. 
effect  of  such,  166. 
of  marriage  settlements,  179. 
effect  of  such,  180. 
of  by-laws  of  corporation,  804. 
what  subject  to,  1158. 

judgments  subject  to  without  acknowledging,  1169, 1204. 
letters  patent  subject  to  without  aoknowlec^ment,  1160. 
prerequisites  to,  1161. 
how  effected,  1162. 

of  transfers  in  trust  for  benefit  of  ereditors,  1164. 
in  wlukt  office  to  be  made.  1169. 
when  deemed  recorded,  1170 
books  for,  1171. 
duties  of  officer,  1172. 
traubfers  of  ships,  1178. 
legality  of  prior,  not  affected,  1206. 
as  eridence,  1206-1207. 
what  notice  deemed  from,  1207. 
where  and  to  whom  notice,  1218. 
priority  of,  establishes  priority  of  right.  1214. 
of  revocation  of  power,  1216. 

effect  of  want  of,  1217.  ^  . 

tf  Instruments  affecting  homesteads.  1244.  yCjOOglC 


INDEX.  574 

Reeording  jf  homefltead  declaration,  $§  1261. 1268. 

of  notice  of  appropriation  of  water,  1416. 

of  certificate  of  formation  of  special  partnership,  3480. 

of  renewal  of  special  partnership,  2485 

of  dissolution  of  special  partnership.  2609. 
RxDUPTiON,  of  francliise  by  corporation,  802. 

person  liaying  inteorest  in  property  subject  to  lien,  haf  light  of 
2903. 

inferior  lienor  hi^s  right  of,  2904. 

how  made,  2906u 

contract  in  restraint  of,  void,  2889. 

r^ht  of,  may  be  foreclosed,  2931,  2967. 
See  LiXN ;  MORTeAOE. 
ftSLATiOKSHiP,  husband  and  wife  cannot  by  contract  impair  their  Im«I 
159. 

degrees  of,  how  computed,  1889-1398. 

of  half  blood  giyes  right  to  succeed,  1894. 

succession  through  illegitimate,  when  allowed,  1888. 
RiLATiyss,  mutual  right  of  defence  of,  43,  50. 

may  protect  child  from  parental  abuse,  208. 

legacies  to,  when  chargeable  with  debts  of  testator,  1861 

when  illegitimate,  take  by  succession,  1388. 

of  half  blood  succeed  alike  with  whole  blood,  1394. 

alienage  of,  does  not  affect  right  of  succession,  1404. 
IUliasx,  of  future  interests  in  property,  699. 

of  debtor  by  substitution  of  new  one,  1581. 

by  creditor,  how  made,  1541. 

effect  of  general,  1542. 

of  several  joint  debtors,  1548. 
RKLnr,  in  general,  3274. 

compensatory,  the  usual  form  of,  8274. 

specific  and  preyentiye,  limited  to  special  ea0e«,  8868 

from  forfeiture,  3369. 

to  be  given  only  in  special  cases  8275,  8866. 

specific,  how  given,  3367 

preventive,  how  given,  8368. 
Pee  Bamaoks  ;  Injunction  ;  Prevsntitx  Rxubf  ;  Snovio  Rxliif. 
Rkuoious,  Social,  and  Benetount  Corpo&atiohs.    See  Gokpobatiom 

285,  286,  593-601. 
RxMAiNDSBS,  defined,  769. 

certain,  valid,  764. 

contingent,  on  prior  remainder  in  fee,  772. 

when  may  be  created,  773. 

upon  successive  estates  for  life,  775. 

on  a  term  of  years,  776. 

for  life  upon  a  term  of  vears,  777. 

upon  a  contingency,  778. 

to  heirs,  when  title  vests  under,  779. 

construction  of  certain,  780 
-  owner  of  estate  in,  may  sue  for  injury  to  inheritance,  826. 

death  of  devisee  before  testator  does  not  affect  certain  inteiasti 
111,1844. 

See  TUTURK  Interests. 
inn,  right  of  taking,  may  be  held  as  a  servitude,  802. 

remedies  for  recovery  of ,  821.  Ci OOQ  Ic 

remedies  for  recovery  of,  by  assignees,  822*828  ^ 

37       • 


174  TNDBZ 

ftflBl,  OBder  lc«M  for  life,  how  recorered,  $  824. 

dependent  on  life,  when  xecorerable,  826. 

payment  of,  by  tenant  to  grantor,  when  binding  on  gXBatM,Il£ 

covenant  for  payment  of,  runs  with  the  land,  fifiS. 

term  of  hiring,  how  indicated  by,  1944. 

acceptance  of,  when  operates  as  renewal  of  lease,  1945. 

when  payable,  1947. 

forfeited  by  letting  room  in  parts,  1960. 
ElPAls,  owner  of  estate  for  life,  to  keep  buildings  in,  840. 

coterminous  owners  bound  to  keep  fence  in,  841. 

tenant  for  life  to  keep  fence  in,  840. 

owner  for  voyage  to  keepship  in,  965. 

borrower  must,  when,  1889. 

hirer  must,  when,  1929. 

landlord  must,  when,  1941. 

tenant  may,  at  expense  of  landlord,  when,  1942. 

letter  of  personal  property  must,  1956. 

hirer  of  personal  property  may,  at  expense  of  letter,  1966. 

of  ship,  shipmaster  may  contract  for,  2376. 
EiPBAL,  of  former  statutes,  20. 
lUsiDSNCx,  right  of  husband  to  select,  108, 156. 

if  husband  selects  unfit,  wife  not  bound  by  such  sulecttoii,  101 

guardian  to  select  for  ward,  248. 

requisites  in  regard  to,  in  actions  for  divorce,  128. 

proof  of  actual,  required  in  actions  for  divorce,  129. 

right  of  parent  as  regards,  of  child,  218. 

subsequent  chaage  of,  does  not  will,  1286. 
RispoNnKNTU,  defined,  9lH6. 

owner  may  hypothecate  by,  in  any  case,  8087. 

master  may  hypothecate  by,  when.  8038. 

law  of  bottomry  applicable  to,  8089. 

obligation  imposed  upon  stiip  owner  by,  8040 
See  BoTTOMHT ;  Libn. 
BuniAiNT,  right  of  protection  from  bodily,  48. 

of  marria^,  when  void,  710, 1676. 

of  alienation,  when  void,  711,  716. 

contract  containing;,  on  l^;al  proceedings,  Toid,  1672. 

of  trade,  contract  in,  when  void,  1678. 

of  trade,  allowed  on  sale  of  good  will,  1674. 

of  trade,  allowed  on  dissolution  of  partnership,  1676. 

of  right  cf  rndemption  from  lien,  not  allowed,  2880. 
Revocation,  consent  to  separation  is  subject  to,  101. 

of  condonation,  1^1. 

grantor  reserving  power  of,  is  deemed  own»,  928. 

of  gift  in  view  of  death,  1151. 

of  power  of  attorney,  how  only  can  be  efTeeted,  1216. 

power  of,  when  deemed  executed,  1229, 1230. 

of  proposal  to  contract,  1586. 

of  proposal  to  contract,  how  made,  1587. 
of  trust,  2280. 

of  continuing  guaranty,  2816. 
Of  WiU.    See  Will,  1272,  1279,  1285, 1292-1306, 1874. 
RieuTs,  accrued  prior  to  taking  effect  of  this  Code  not  affected  by  II,  f 

per*ou  of  unsound  mind  cannot  waive,  40 

minor  may  enforce  by  civil  action,  43.        ^  GoOqIc 


\ 


INDEX.  iTB 

lislitfl  of  personal  relation,  forbid  what,  ^  49. 

certain,  subject  of  ownership,  6&5. 

in  water,  how  acquired,  1410. 

may  be  waived,  tS513. 

must  not  be  used  injuriously,  3514. 
EWHI  or  Wat,  granted  to  corporations,  474. 

limitation  of  such,  475. 

selection  of  such,  how  certified  to,  478. 

as  an  easement,  801. 

as  a  servitude,  802. 
UlSKS,  insured  against,  to  be  stated  in  policy,  2587. 

effect  of  altering  thing  covered  by  fire  insurance,  increasing,  S7S8 

effect  of  altering  thing  covered  by  fire  insurance,  not  increasinc. 
2764. 

what,  may  be  insured  against  in  marine  insurance,  2655. 

stipulation  of  personal  liability  under  bottomry  independent  cf, 
void,  3024. 

See  Insurants. 
|U>Ai>  CoKPO&ATiOMS.    See  Wa.qoh  IIoad  Corporations. 

Ialabt.    See  Compexsation  ;  Wages. 
Ialb,  defined,  1721. 

of  stock  for  delinquent  a^Ressments,  341. 

when  corporations  may  pui-chase  at  such,  343. 

of  franchise  of  corporations  under  executioni*.  388. 

such  not  to  affect  powers  of,  of  corporations,  391. 

of  franchise  under  execution,  where  made,  ^3 

of  personal  property,  owner  of  future  interest  in  may  compel,  941 

transfer  of  personal  property  by,  1136. 

what  title  to  personal  property  passes  by,  1140. 

obligation  of  seller  of  personal  property  as  to  delivery.    See  !>■ 

LIVERT. 

as  to  warranty.    See  Warranty. 

i)f  homestead  on  execution,  1254-1256. 

rescission  of,  not  affected  by  stoppage  in  transit,  3080. 

power  of,  under  mortgage,  how  executed,  WZI. 

of  pledged  property  by  pledgee,  requisites  previous  to,  3000- 8009 

notice  of,  may  be  waived,  3008. 

of  pledged  property,  must  be  by  auction,  3006. 

of  pledged  property,  on  demand  of  pledgor,  3007. 

of  pledged  property,  surplus  of,  to  whom  paid,  3008. 

of  property  of  pledgee,  rights  of  pledgee,  8009. 

cf  pledgee's  securities,  8006. 

judicial,  of  pledged  property,  3011. 

subject  of,  must  be  what,  1722. 

factor  may  cause,  for  his  reimbursement,  2027. 

when  pledgee  may  purchase  at,  3010. 

on  credit  by  factor,  2028. 

liability  of  factor  upon,  under  guaranty  commission,  2099 

of  delinquent  mining  property,  2520. 

extinction  of  lien  by,  2910. 

power  of,  may  be  conferred  by  mortgage,  2926. 

by  depositary  of  deposit  in  ^nger  of  perishing,  1837. 

.%f  thing  found,  18^1870. 

rights  and  obligations  of  seller  under.    See  Skllkkt^^^I^ 

flfhts  and  obUgaUons  of  buyer  under.    See  Bvrii^^^d  ^^ 


170  IVDBX. 

lAU — Agreemeni/or.    See  AaUBMSMT,  §§  IdOl,  1728-1784, 178^1711 
Bif  Auction, 

defined,  1792. 

when  complete,  1793. 

withdrawal  of  bid,  1794. 

written  conditions  of,  not  to  be  modified,  1795.  • 

when  absolute,  1796. 

by  bidding  at,  a  fraud,  1797. 

auctioneer's  memorandum  of,  binding,  1798. 
See  Adction  ;  Buy£R  ;  Deuteet  :  Ssllsr  ;  Wabi antt. 
SALTAes,  in  case  of  capture  of  ship,  ratable  deduction  to  be  made  froa 
seamen's  wages  for,  2060. 

who  entitled  to,  2079,  2725 
BATiSfACTiON.    See  MoaTfiAOE,  2938-2941. 

of  judgment  against  corporations,  388. 

of  judgment  against  homestead,  how  made,  1241. 

of  legacies  and  gifts,  1367. 

what  operates  as,  1523-1524. 

See  Accord. 
Sayings  and  Loan  Corporations.    See  Corporations,  286,  571-6791 
Ska,  perils  of,  defined,  2199. 

perils  of,  carrier  not  liable  for  damages  caused  by,  2197. 
BsAL,  defined,  14. 

private,  abolished,  1629. 

officer  taking  proof  or  acknowledgment  of   insiniment,  invil 
affix,  1193. 

corporate  or  official,  how  affixed,  1628. 
BlAMBN.    See  Wages,  2051-2054,  2058,  2060,  206^2063,  8066. 

defined,  2049. 

may  make  nuncupative  will,  when,  1289. 

power  of  shipmaster  over,  2037. 

how  engaged,  2050. 

how  dlBchaiged,  2050. 

cannot  be  compelled  to  ship  on  unseaworthy  Teasel,  2061. 

restrictions  on  contracts  with,  2053. 

lien  of,  8056. 

must  be  provided  for  in  sickness,  2061. 

must  not  ship  goods  on  his  own  account,  2064. 

liability  of  for  injury  to  ship,  2063. 
liAWOBTHiNESS,  seamen  not  bound  to  sail  when  reasonable  doubt  eziits 
as  to,  of  ship,  2051. 

defined,  2682. 

implied  warranty  of,  in  insurance,  2681. 

at  what  time  must  exist,  under  insurance,  2683. 

what  required  to  constitute,  2684. 

different  degrees  of,  during  voyage,  2686. 

for  the  purpose  of  insuring  cargo,  2687. 
flKinifTr,  for  alimony,  140. 

indorser  having,  not  entitled  to  notice  of  dishonor,  8157. 

to  be  given  by  assignee  for  benefit  of  creditors,  3467. 

contracts  of,  when  called  bail,  2780. 

held  by  creditor  or  co-surety,  surety  entitled  to  benefit  of,  2849 

held  by  surety,  creditor  entitled  to  benefit  of,  2864* 

by  way  of  lien.    See  Lien,  2872. 

for  what  lien  may  be,  2884. 

for  obUfatloift  does  not  pxerent  direct  •BforeooMiit,  3880 


INDEX.  I7> 

ft  of  morteagee  not  to  be  impaired  by  pen'on  boon  I,  §  2929. 
by  way  of  pledge.    See  Plbdgb. 
for  third  person,  pledge  may  be  made  aa,  2992. 
by  way  of  bottomry  (see  Bottomst),  8017. 
by  way  of  respondentia  (see  KsspoNDBinriA),  808ft 
See  Bond  :  Surety  ;  Sokettship 
bDUOnoN,  right  of  protection  from,  49. 

damages  for,  8339. 
BuuB,  of  good  will,  may  agree  not  to  carry  on  the  fame  binliiin, 

in  an  executory  contract  of  sale,  bound  to  insert  certain  MT^ 
nants,  1734. 

rights  and  obligations  of,  1748. 

as  depositary  before  delivery^  1748. 

in  respect  to  resale  or  re8cissionj^49. 

auth<»rity  of  auctioneer  from,  2882. 

of  real  property,  lien  of,  3047. 

when  lien  of,  of  real  property,  deemed  waived,  8047 

extent  of  lien  of,  of  real  property,  8049. 

of  personal  property,  8049. 
Obligations  of.  tu  to  Delivery.    See  Dklitert,  1753-1757. 
ObligeUions  of.  (U  to  Warranty.     See   Grantor  ;    Salb  :    YniDOft  : 
Warranty,  1763-1766,  1768-1778. 
Bdabatioh.    See  Desertion,  99-101 ;  Husband  and  Wife,  159, 160 

husband  and  wife  liying  in  state  of,  custody  of  child,  214. 
BbbTAHT,  abduction  or  enticement  of,  forbidden,  49 

injury  to,  forbidden,  49. 

relation  of  master  and,  264 

defined,  2009. 

term  of  hiring,  2010-2011 

renewal  of  hiring,  2012. 

time  of  serriee  of,  2013. 

to  deliver  over  to  master  without  demand,  2014. 

master  may  discharge,  2015. 

See  Apprentice  ;  Employee  ;  Service. 
naanCM,  of  legitimate  unmarried  minor,  father  entitled  to,  197. 

of  illegitimate  unmarried  minor,  mother  entitled  to,  200 

parent  may  relinquish,  of  child,  211. 

when,  apprentice  may  recover  for,  276. 

of  depositary,  1839. 

contract  for,  cannot  be  specifically  enforced,  8390. 

employee  in  gratuitous,  duties  of,  1975. 

gratuitous,  when  may  be  relinquished,  1976. 

without  employment,  2078-2079. 

of  carrier,  other  than  carriage,  2208. 

See  Employee;  Employment;  Servani, 
tMBTlTUDES,  upon  land,  when  called  easements,  801. 

when  may  be  held  apart  from  the  land,  802. 

by  whom  grantable,  804. 

by  whom  may  be  held,  805. 

extent  of,  how  determmed,  806. 

partition  of  burden  of,  807. 

now  far  usable  by  expectant  owner,  808. 

who  may  enforce  by  action,  809. 

do  not  disqualify  owner  from  recovering  possesaltm)  810'   i 

how  extinguished,  811.  uigitized byV^OOgle 


(78  INDEX. 

BfflRAL  defined.  §14. 

ownership,  681. 
Inv  AVI)  Shipping,  defined,  960. 

appurtonanceB  of,  961. 

foreign,  962. 

domestic,  968. 

controversy  between  r»rt  owners  of,  how  deteminea,  Wit. 

who  responsible  for  repair  and  supplies  of,  965. 

n^try,  enrolment,  and  license  of,  966. 

collision  between,  from  breach  of  rules,  971. 

losses  caused  by  collision  of,  how  apportioned,  978. 

transfer  of  Interest  in,  to  be  in  writing,  1135^ 

recording  transfer  of,  where  provided  for,  1173. 

when  not  seaworthy,  seamen  need  not  sail  in,  2061. 

seaworthiness  of,  defined,  2682. 

charter  party  of,  defined  and  regulated,  1959. 

laws  of  mortgage  do  not  apply  to,  2978. 

Uen  on,  S06». 

hypothecation  of,  under  bottomry,  8017. 

shipmaster  may  procure  repairs  and  supplies  of,  23 lO. 

shipmaster  may  hypothecate^hen,  2377. 

shipmaster  may  sell,  when,  2378. 

abandonment  of,  terminates  master's  power,  2881.        ^^ 

shipmaster  personally  liable  for  certain  contracts  for,  2882.^^ 

liability  of  master  for  negligence  of  persons  employed  on,  2888. 

part  owners  of,  not  partners,  2396. 
See   Abandonment  ;   Bottom ai ;   Insuranob,   Marinb  ;    SiUViEAtTtt 
Ship's  Manager;  Ship  Owners;  Voyagk. 
InniASTiCR.    See  Ship,  1969,  2376-2378,  2381-2383. 

how  appointed,  2031. 

must  be  on  board,  when,  2036. 

must  take  pilot,  when,  2036. 

power  of,  over  seamen,  2087. 

power  of,  over  passengers,  2038. 

power  of,  to  impress  private  stores,  2039. 

must  not  abandon  ship  without  advice,  2040. 

duties  of,  on  abandoning  ship,  2041. 

When  must  not  trade  on  his  own  account,  2042. 

care  and  diligence  required  of,  2043. 

authority  of,  necessary  to  make  jettison,  2150. 

is  general  agent  for  owner,  2373. 

muy  borrow  on  credit  of  owner,  2374. 

is  general  agent  of  owner  of  cargo  during  voyage,  2876. 

power  of,  to  sell  cargo,  2379. 

authority  of,  to  ransom  ship,  2380. 

respousibility  of,  for  negligence  of  pilot,  2384.        ^^ 

when  may  hypothecate  ship  under  bottomry,  8019-80OT. 

when  may  hypothecate  freightage  under  bottomry,  dOu. 

lien  of,  3055. 
IklPOWNERS.    See  Ship,  962,  2374,  2376,  2878,  2381. 

master  of  ship  appointed  by,  2()35. 

when  manager,  called  what,  2070. 

when  manager,  not  entitled  to  compensation,  2072. 

shipmaster  general  agent  for,  2373.  ^^ 

oontract  to  ransom  ship,  by  shipmaster,  bli^s,  2880. 
when  r«H)ponsible  for  negligence  of  ship,  23d4.     3qIc 


INDEX.  57S 

BhlTowners,  obligations  of,  §  2386. 

ship's  manager  caunot  bind,  to  an  husuraiftM,  23K0 
hna  insurable  interest,  266B. 
Talue  of  insurable  int«rt<st  of,  ^Tl 
have  insurable  interest  in  expcrtoil  freightage,  2>iG2. 
may  hypothecate  ship  upon  bottomry,  :jUi8. 
when  must  repay  owner  of  caticu  hypoUi4)catetl  uu«i«ir  respondn 
tia,  3040.  ' 

Ship's  Manaqer.  defined,  2070. 
;  duties  of,  2071. 

not  entitled  to  compensation,  when,  2072. 
.  powers  of,  2388. 
limitation  of  powers  of,  2889. 
'.  Shipwreck,  involuntary  deposit  may  be  made  in  case  of,  1816. 

I  duty  of  depositary  in  such  case.  181(5. 

I  wages  of  seamen  not  lost  by,  2058. 

8ee  Aba«do:(M£MT  ;  Ix)88. 
Bl€KATUBK,  defined,  14. 
I  officer  taking  acknowledgment  must  affix,  1193. 

'  in  indorsement  of  n^^taable  instrument,  3109-3110. 

\   '  Blandjer,  defamation  effected  by,  44. 

defined,  46. 
Bpscific  PKRFORMA5GB,  of  obligations  may  b«  compelled,  when,  3384 
not  enforced  unless  mutual,  3886. 
f.  prcfcumption  in  favor  of,  as  to  real  property,  8387. 

ji^i  presumption  against,  as  to  personal  property,  3388. 

may  be  enforced  in  faror  of  party  not  bound,  when,  3888 
^  may  be  enforced,  notwithstanding  penalty  in  contract,  3389. 

not  enforced  in  respect  of  personal  service,  3390. 

I  not  enforced  in  respect  of  contract  to  accept  arbitration,  8390. 

not  enforced  in  respect  of  act  which  party  cannot  perform,  3390. 
not  enforced  in  respect  of  agreement  to  procure  act  of  third  per- 
son, 3390. 
not  enforced  in  respect  of  indefinite  contract,  3390. 
not  enforced  against  party  not  having  adequate  consideration, 

not  enforced  against  party  as  to  whom  contract  is  not  fair,  3391 
not  enforced  against  party  not  freely  consenting,  'SSQl. 
not  enforced  in  favor  of  party  in  default,  8392. 
.  of  agreement  to  buy,  not  enforced  when  title  doubtful,  339* 
may  be  enforced  against  persons  claiming  under  party  lx)und  to 

perform,  3395. 
of  trust  power,  may  be  compelled,  932. 
^  may  be  enforced  after  revision,  3402. 

*      ■        &.A6V  Companies.    See  Corpoeations,  286. 

8xAT\iTKS,  in  derogation  to  common  law,  how  construed,  4. 
effect  of  Code  on  existing,  5,  20. 
^  minor  cannot  dLsaffirm  contract  made  by  authority  of  special,  87 

^  insane  person  cannot  make  contract  without  express  authority 

rights  granted  by,  subject  of  ownership,  666. 
Btook.    See  CoapoaATiONS,  293,  295,  301,  304,  307,  309,  810.  812,  322^826, 

340,  341,  343,  344,  347,  369. 
Btookholdees.    See  Corporations,  298,  SOI,  810,  822. 
8TOPf>AOE  IN  Trans    ,  right  of,  who  may  exercise,  ^70. 

when  may  be  exercised,  3078.  GoOqIc 


180  INDBZ. 

Btoppagv  in  Truuit,  how  effected,  §  3079^ 

does  Bot  rescind  sale,  8080. 
Stobaoi.    See  Carrisr, 2121-2122 ;  Dbpositabt,  1851-1865, 1868. 
Btjucet  Railroad  Corporations.    See  Railroad  Corporatiohs. 
BOB-AQSNT,  not  responsible  to  agent's  principal,  2022. 

when  agent  responsible  to  principal  lor,  2350. 

when  not,  2851. 

See  Agrnt. 
BvBPCBNA,  ofBcer  taking  acknowledgment  may  issue,  1201. 
BuocxssiON,  rights  of  children  of  annulled  marriage  to^Si. 

alien  taking  by.  when  must  assert  his  claim,  6t2. 

posthumous  children  take  by.  698. 

future  interest  may  pass  by,  699. 

property  may  be  acquired  by,  1000. 

words  of,  unnecessary  to  pass  a  fee,  1072. 

liability  of  persons  acquiring  property  by,  1115. 

cliild  of  testator  bom  after  making  of  will  takes  by,  1800. 

child  of  testator  unprovided  for  by  will  takes  by,  when,  1807 

defined,  1383. 

both  real  and  persoxuil  property  pass  by,  1384. 

to  whom  property  passes  by,  13S4. 

distribution  of  property  received  by,  1386. 

illegitimate  ciiild  takes  what  property  by,  1387. 

mother  of  illegitimate  child  to  take  by,  1388. 

computation  of  degrees  in  determining,  1389-1893. 

exclusion  from,  by  advancement,  1895. 

relatives  of  half  blood,  when  to  take  by,  1394. 

husband  lakes  common  property  by,  on  death  of  wife,  1401. 

husband  and  wife,  divorced  and  in  fault,  not  to  take  by,  1401. 

wile  takes  one  half  of  common  property  by,  on  death  of  hot 
band,  14()2. 

by  representation,  1403. 

aliens  may  take  by,  1404. 

when  State  takes  by,  1405-1406. 

when  State  takes  by,  subject  to  charges,  1407. 

persons  taking  by,  liable  for  debts  of  decedent,  1408. 

change  of  interest  by,  does  not  affect  insurance,  2556 
BoccESSORS.    See  Succession,  1394, 1403,  2951. 

of  decedeot  may  dispute  legitimacy  of  issue,  195. 

of  employer,  when  must  compensate  employee,  1998 

duty  of  trustee  as  to  iippointmcnt  of  his,  2260. 
See  Personal  Reprksentatives  ;  Succession. 
FuPREME  Court,  justice  of,  uia}'  solemnize  marriage,  70. 
Kketv,  defined,  2831. 

apparent  principal  may  show  that  he  is,  2832, 

liability  of  cannot  exct-ed  t«>rms  of  contract,  2836. 

liability  ol,  not  altered  hy  ju«Igment  against  principal,  2888. 

liability  of,  discharged  by  olt'er  to  perform  piincipal  oblifcatftov 

interpretation  of  contract  of,  2837 

how  exonerated,  2838,  2845. 

rights  of,  same  as  guarantor's,  2844 

rights  of,  to  compel  creditors  to  sue,  &c.,  2846. 

rights  of,  to  compel  principal  to  perform,  2846. 

rights  of,  to  compel  principal  to  repay  him,  2847.  ^ 

rights  of,  to  compel  co-sureties  to  contribute,  2848. 


i 


IKDBX.  5S1 

htB  of,  to  enforce  remedies  of  creditor  afalnet  principal,  f  2848 
ghts  of,  to  benefit  of  secarities  held  bj  creditor  or  co-surety 

rights  of,  to  have  principars  property  taken  first,  2860. 
rights  of  creditor  against,  2855. 
release  of  principal  releases,  1548, 2819. 
indemnitor,  how  far  entitled  to  rights  of,  2779. 
indorser  for  accommodation  has  rights  of,  8122. 
when  person  indemnifying  is,  2779. 

See  Guaranty  ;  Letter  of  Crzdit. 
EuviTTSHiP,  contract  of,  defined,  2831. 
how  interpreted,  2837. 

See  OuARANTT  i  Lettkr  of  Cbkbit  ;  Surety. 

Iail,  estates  in,  abolished,  768. 

to  what  extent  valid,  764. 
Taxis,  owner  of  life  estate  must  pay,  84C. 

covenant  for  payment  of,  runs  with  land,  1468. 
Technical  Words,  how  construed,  13,  1327-1328. 
Telegraph  Corporations.    See  Corporations,  286,  291,  294,  536-542. 
.  Ibtant,  husband  and  wife  may  hold  property  as  joint,  or  in  cominoM, 
161. 
for  life,  heirs  of,  when  take  as  purchasers,  779. 
at  will,  how  required  to  quit,  827. 
notice  to  change  term  of  lease,  operation  of,  8315. 
damages  for  wilful  holding  over,  83 J4. 
for  life,  rights  of.  818. 
for  years  or  at  ^-ill,  rights  of,  819-820. 
what  fixtures  may  remove,  1019. 
attornment  by,  when  unnecessary,  1111. 
attornment  by,  when  void,  1948. 
when  several  devisees  take  as  in  common,  1350. 
may  repair  at  expense  of  landlord,  when,  1942. 
continued  possession  of,  when  renews  lea.^ie,  1946. 
must  give  notice  to  landlord  of  adverse  proceeding,  194S. 
when  rent  payable  by,  1947. 
of  part  room,  entitled  to  whole,  1949. 
£  released  from  rent  by  letting  room  in  parts,  1949. 

7  See  Lani»lord. 

Testament.    See  Will. 

Testator.    See  Will,  1276, 1279, 1292, 1298-1300, 1306-1307. 1312. 
property  of,  how  disposed  of  in  payment  of  debt,  1359. 
property  of,  payment  of  legacies,  1360. 

See  Bequest  ,  Devise  ;  Legacy  ;  Will. 
Vhreat,  desertion  caused  by,  how  operates  as  a  ground  of  divorce,  98 
trustee  must  not  use,  to  obtain  advantage,  2228. 
partner  must  not  use,  to  obtain  advantage,  2411. 
See  Duress  ;  Menace  ;  Undue  Influence. 
^  .'IME,  how  computed,  10. 

of  commencing  action  for  nullity  of  marriage,  88. 
certain  causes  for  divorce  must  continue  for  what,  107. 
of  commencing  actions  for  divorce,  127. 
of  creation  of  interest,  what,  749. 

in  which  alien  non-resident  must  assert  his  claim  to  take  by  sao 
cession,  672.  ^  I 

^  of  delivery  of  gran*  presumption  of,  1055.        yV^OOglC 


MS  ISDEX. 

n^ie,  wordu  in  vill,  relate  "o  wliftt,  f  1386. 

•t  wiiich  obiigation  n&*ist  be  performed,  1490-1491 

not  of  east  nee,  unless  expressly  declared,  1492. 

of  performance  of  coatract,  1667. 

of  perfomiauce  of  contract,  may  be  extended,  1698. 

entire,  of  servant,  belongs  to  master,  2018. 

to  which  representation  in  insurance  refers,  2&77. 

allowed  for  travelling  to  record  personal  mortgage,  2966. 

does  not  confirm  a  Void  act,  8539. 

8ee  Lapss  of  Tuu. 
riTLB,  of  act  establishing  the  Civil  Code,  1. 

filing  inventory  of  wife's  property  gives  notice  of  her,  1(36. 

ownership  of  Instruments  affecting.  994. 

of  property,  how  acquired,  lOOO-lOOl. 

by  occupancy,  1006-1007. 

by  accession,  1013. 

by  transfer,  1039. 

redelivery  of  grant  to  grantor  does  not  revest,  1058. 

fee  simple^when  presumed  to  patis,  1105. 

subsequently  acquired,  passes  by  operation  of  lav,  1106. 

subsequently  acquire^l,  paat-'es  by  will,  1312. 

what,  passes  by  transfer,  1083, 1106. 

to  highway,  passes  by  trsiusfer,  1112. 

to  personal  property,  what  passes  by  transfer,  1140. 

transfer  of,  under  executory  agreement  of  sale,  1141. 

when  buyer  acquires  better,  than  settler  has,  1142. 

Instruments  evidencing,  declared  by  judgment,  how  profwl 
record,  1159,  1204. 

what,  vests  by  homestead  declaration,  1265. 

to  homestead,  how  recorded,  1268. 

by  devise  by  will,  1311. 

when,  passes  by  specific  devise  or  l^^y,  1363. 

to  thing  in  performance,  when  passes  to  creditor,  1502. 

warranty  of,  to  personal  property,  1765. 

loan  for  use  does  not  transfer,  1885. 

loan  for  exchange  transfers,  1904. 

to  freight,  by  transfer  of  bill  of  lading,  2127-2128. 

implied  warranty  of,  to  personal  prop^orty,  is  authority  to  agwi 
to  sell,  2323. 

lien  does  not  transfer,  2888. 
fnLB  Deeds,  ownership  of,  994. 
Tolls.    See  Corporations,  514-519. 

right  of  taking,  may  be  held  4s  a  servitude,  802. 
rBADE,  contract  restraining,  how  far  allowed,  1673-1  76 

See  Business 
i'BAi«E-jCARKS,  subJects  of  Ownership,  655. 

what  may  be  appropriated  as,  991 

implied  warranty  of,  1772. 

See  Marks. 
ffEAirsPER  of  services  and  custody  of  child,  how  only  can  be  effectai,  19^ 

of  stock,  how  effected,  324. 

of  stock  of  married  woman,  how  effected,  325 

of  stock  of  non-resident,  how  effected,  326 

future  interests  may  pass  by,  699. 

effect  of,  where  consideration  is  paid  by  third  person,  SU 
etToot  of  omitting  to  declare  trust  iu,  869      CoOqIc 
'  o 


-  I 


INDEX.  ftW 

PvBBiler,  thing  in  action  «ab]eirt  fo,  $  954. 

product  of  the  mind  subject  to,  982. 

good  will  of  businesH  subject  to,  996. 

property  arquircd  by,  1000. 

defined,  1039. 

Yoluutary,  defined,  1040. 

Toluntary,  couHideration  not  necessary  to  its  Talidity  (sM  f}\rs> 

1040. 
what  may  be  subject  of,  1044. 
mere  possibility  not  Hubject  of,  1046. 
right  of  reentry  subject  of,  1046. 
adverse  claim  subject  of,  1047. 
of  land,  when  title  pai^ses,  1112. 

agreement  not  to  transfer  injured  interest,  when  Told,  2599. 
life  insurance  policy  may  pass  by,  2764. 
of  thing  insured  does  not  transfer  policy,  2598. 
of  interest  in  partnership  property  dissolyes  partnenhipj  2460 
Ikfode  o/, 

onil,  1052. 

by  grant  (see  Geant),  1053. 

to  Test  title  in  transferee,  1083. 

upon  incidents  of  things  transferred,  1084 

in  favor  of  stranger,  lOSd 

of  personal  property  by  sale,  1140. 
VnUiwful^and  Fraudulent.     See  Irstsijmkxts,  1227-1231,  3441-84H 
Of  Obligations.    See   Covenants  ;  Oblioatioms,  1457-1458, 1460. 
0/ Personal  Property^ 

when  must  be  in  writing,  1185. 

by  sale,  1136. 

of  title  under  sale,  1140. 

under  executory  agreement,  1141. 

effect  of,  under  sale,  1142. 

See  Gifts. 
Vea9»it,  mort^ged  property  In,  where  deemed  located,  2967. 

stoppage  in,  3076. 

stoppage  in,  how  effected,  3079. 

stoppage  in,  effect  of,  3080. 
tREES,  ownership  of,  838-834. 

damages  for  injuries  to,  3346. 
Trespass,  personal  property  acquired  by,  1031. 

on  personal  property,  liability  of  trespasser,  1038. 
raosT.    See  Trustee,  2213-2219,  2222,  22*3-2244. 

suspension  of  power  to  alionato  subject  of,  771. 

powers  in.     Stjc  Powkks. 

interest  in  e-xisting,  how  transferred,  1135. 

transfer  of  property  hi,  when  to  be  recorded,  1164. 

voluntary,  defined,  221G. 

involuntary,  defined,  2217. 

for  what  object  may  be  created,  2220. 

voluntary,  how  created  as  to  trustor,  2221. 

voluntary,  how  created  as  to  trustee,  2222. 

obligtitions  of  trustee  under.     See  Trdstes. 

obligiitions  of  trustor  under.    See  Tbustob. 
For  Benefit  of  Third  Person,  ^  l 

doflued.  2260  digitized  by  V^OOglC 


SS4  IMDEX. 

tvan  —  For  Benefit  of  Third  Person  —  how  created,  f  2951- 

when  court  is  trustor  under,  2252. 

how  declared,  2253-2254. 

obligations  of  trustee  under.    See  Trdstbi. 

termination  of,  2279, 

not  revocable,  2280. 

See  Trusts  ih  Rkal  Pbopeett. 
Ersiex,  on  dissolution  of  corporations,  400. 

defined,  2218. 

what  constitutes,  2219. 

trust,  how  created  as  to,  2222. 

Involuntary,  wrongful  holder  of  thing  is,  2223. 

involuntary,  fraudulent  gainer  of  thing  is,  2224. 

must  act  in  best^aith,  2228. 

not  to  use  property  tor  bis  owa  funds,  2229. 

mnst  not  take  advantage  of  beneficiary,  2231. 

must  not   take   part   in   transactions   adverse    to   benefloUit) 
2230. 

must   not  assume   trust   adverse   to    interest   of   beneflcifr^/ 
2232. 

must  disclose  adverse  interest  to  beneficiary,  2233. 

when  guilty  of  fraud,  2234. 

mixing  funds  with  his  own,  how  far  liable,  2236. 

presumption  against,  2235. 

measure  of  liability  of,  for  breach  of  trust,  2237-2238. 

responsible  for  acts  of  co-trustee,  wheu,  2239. 

when  person  acquiring  trust  property  becomes,  2250. 

payment  to,  when  sufficient,  2244. 

when  third  person,  when  becomes  involuntary,  2248 

assent  of  trustor  and,  creates  trust,  2251. 

appointed  by  court,  who  is  trustor  of,  2252. 

must  fulfil  purpose  of  trust,  2258. 

must  use  ordinary  care  and  diligence,  2259. 

must  procure  trustworthy  successor  on  dischai^,  226(^ 

must  invest  trust  fund,  how,  2261. 

must  pay  interest,  when,  2262. 

cannot  enforce  claim  against  trust  fund,  2263. 

powers  of,  as  agent,  2267. 

eannot  act  without  assent  of  co-trustee,  2268. 

discretionary  power  of,  how  controlled,  2269. 

involuntary,  rights  of,  2275. 

ofllce  of,  how  vacated,  2281. 

how  discliarged,  2282. 

how  removable,  2283. 

appointment  of  new,  2287. 

survivorship  of,  2288. 

District  Court,  when,  2289. 

insurance  by,  how  made,  2589. 
Of  Real  Property, 

whole  estate  vests  in,  when,  863. 

when  grant  to,  to  be  deemed  absolute,  869. 

acts  of,  in  breach  of  expressed  trust,  void,  87QL 

estate  of,  when  ceases,  871. 
_^  SeeTEUSTj  Trust  in  KxAL  PBOPXETT^  , 

fMinoR.    See  Teustm,  2218,  2222,  2261-22B2,jgi,ized  by  GoOqIc 

defined,  2218  ^ 


Ml 


fruftor,  declantlon  of  trust  bj,  must  be  obeyed,  f  2666. 

cannot  revoke  trust,  when,  2280. 
See  Benkficiart  ;  Trust  ;  Trusts  in  Rkal  Proi  iitt 
Tbusts  in  Rkal  Property,  limited  to  those  specified,  847> 

must  be  in  writing,  852. 

resulting,  when  presumed,  853. 

resulting,  not  to  prejudice  purchasers,  866. 

express,  for  what  purposes  allowed,  857. 

when  liable  to  creditors,  859. 

when  no  estate  vests  under,  860. 

Test  whole  estate  in  trustees,  863. 

author  of,  may  prescribe  to  whom  estate  shall  belong,  864. 

estate  of  grantee  subject  to,  865. 

estate  left  in  author  of,  866- 

powers  over,  of  beneficiaries,  867. 

effect  of  omitting  to  declare  in  conveyance,  869 

expressed  in  creation  of  estate,  acts  in  breach  of,  void,  870 

when  to  cease,  871. 

Umdub  Influencr.  will  procured  by,  void,  1272 

contract  obtained  through,  voidable,  1567  1689 

defined,  1575. 

thing  gained  by,  held  in  trust,  2224. 

presumption  of,  against  trustee,  2235. 
USAOl,  defined,  14. 

meaning  of  words  fixed  bv,  to  be  followed,  1644. 

employee  to  conform  to.  1982. 

agent  to  conform  to,  2349 

Vauuabls  CoxsiDKSATioir,  defined,  14. 

8ee  CONSIDKBATIOX 

Valub,  defined,  14 
Vrndor.    See  Lien,  8046-8048,  8660. 
Vbrdict,  term  includes  what,  14. 
Vbstrd  Interest,  future,  defined,  694 

\7aoxs,  of  minor,  when  may  be  paid  to  him  212 

of  seamen  not  lost  by  agreement,  2052. 

of  seamen,  when  begin,  2055. 

of  seamen,  depend  on  freightage,  when,  2054. 

of  seamen,  depend  on  freightage,  when  not,  2058 

of  seamen,  when  voyage  is  brolcen  up,  2056. 

of  seamen,  when  wrongfully  discharged.  &c.,  2057 

of  seamen,  when  prevented  from  rendering  serviee,  2060 

of  seamen,  when  personal  representatives  entitled  to,  206S. 

of  seamen,  not  to  be  lost  by  special  agreement,  2052. 

of  seamen,  when  forfeited,  2063 

of  seamen,  lien  for,  8056. 
Hr  i«0N  RoAi>  Corporations.    See  Corporations,  286,  291, 2M,  612-638 
Waiver,  person  of  unsound  mind  cannot  lose  rights  by,  40. 

of  objections  to  offer  of  performance,  1601 

of  option  as  to  delivery  of  goods,  1756. 

of  communication  in  insurance,  2566 

of  notice  of  sale  of  pledged  property.  8008. 

of  demand  by  pledgor  or  debtor,  3004  ,    ^^  C^r»r»olp 

of  ptesentment  and  notice  3158  u,g,t,zedby<^OOgie 


INDXX. 


WalTtr  of  protest,  1 81W.  .    .      ^  ..  ^ 

of  proTisions  of  this  Code  by  stlpulaUoB  b«twwn  pmrtlM, 
Wabb.    See  Ouabnam,  216,  256 

defined,  237.  ,        ^    .  ^--_ 

Wa»»A5TKS,  Uneal  and  collateral  abolished,  1115. 
Waehstt,  coveuant  of,  runs  with  the  la*d,146d. 

corenant  of,  executory  contract  binds  seller  to  iuMrt   itda 

defined,  1763. 

none  implied  in  sale,  except,  1»W. 

of  title  to  personal  prn|)«rty,  1765. 

on  sale  by  sample,  I7t)6.  *  -.-/it 

where  buyer  relies  on  seller  s  judgment,  i»OI 

by  manufacturer,  1708-1770. 

of  goods  iuttccesPTble  to  buyer,  1771. 

of  trade-marks,  1772. 

of  other  marks  on  goods,  1773. 

afl  to  sale  of  written  mstrument,_1774 

of  provisions  for  domestic  use,  1775. 

as  to  sale  of  good  will,  1776. 

on  judicial  sale,  1777. 

effcct  of  general,  1778. 

right  of  buyer  to  inspect  goods  on  sale  ^«n,  li». 

right  of  buyer  to  rescind  in  case  of  breach  of,  i<5o 

implied,  of  money  exchanged,  1807.  «^^,^  omo 

implied,  in  authoiity  to  agent  to  sell  personal  property,  ^J» 

of  authority,  2342. 

agent  has  power  to  give,  2323. 

auctioneer  1ku*«  power  to  give,  2362. 

implied  in  negotiable  instrument,  3110.  ,.^^^^,  oQiq 

djinuiges  for  breach  of,  of  quality  of  personal  P'«P«^L' «** 

djimugvs  for  breach  of,  of  title  to  personal  property ,  diJli. 

damages  for  breach  of,  of  agri\^'«^^"<llSn2^S2ii:2686  26.S3. 

Tn  Insmance.    See  Insurance,  2aro.  2603-2612,  Mii-axio,  a>^- 

Wkm,  right  of  taking,  an  eawment,  801.  ^„^«„,.»  Mil 

right  of  reeei?inK  and  discharging  on  land,  an  easement,  WJL 

boundaries  by,  830. 

rights  to,  how  acquired;  1410. 

appropriation  mu.^t  be  for  use,  Ull. 

point  of  diversion  may  be  changed,  i*]f 

may  be  turned  hito  natural  channels,  141» 

priority  of  right  to,  1414. 

notice  of  appropriation,  **lo- 

diligence  »n  appropriation,  1416 

"  completion,"  defined,  1417 

doctrine  of  relation  applied  to,  1418 

forfeiture  of  right  to,  141^. 

rights  of  present  claimant,  1420 

rights  of  riparian  owners,  1422.  rio«i 

VTatee  a»d  Canal  Cobpobatjons.    See  Coepo»atio5S,  286, 6«-«tt 
If  ATS,  boundaries  bj,  ooi.  „ 

See  RiooT  o»  Wat. 


IThabp  Corporations.    See  Br>dgs  akd  Ferbt  CoRPomATiOM. 
Vfivow,  legacy  to,  when  chargeable  with  debts  of  testator,  ImL 

Google 


WIl^ow,  l^aey  to,  when  cbargeabie  witn  ueow  o 

interest  on  legacy  to,  when  accrues,  13w. 
_  See  SuccsssiOK  ;  Wwm 

▼in,  abduotion  of,  forbidden,  ia 


igitized  by  V 


X.<«DEX.  &S7 

infa,  most  abide  by  hns)>and*s  rcasoDable  Miecticm  of  reBideoM  1 109. 
on  refasal  so  to  do  she  commits  desertion,  103.* 
if  place  is  unfit  and  she  refuses,  husband  commfto  desertion,  101 
neglect  of  hu$«band  to  provide  for,  is  ffround  for  diyorce,  106. 
may  be  granted  alimony  on  divorce,  13&-137, 139. 
when  allowance  may  be  withheld  from,  142. 
when  shall  support  husband  out  of  her  property,  176. 
legitimacy  of  issue,  where  divorce,  granted  for  adultery  of,  145. 
separate  property  of,  162. 
may  dispose  of  her  separata  property  witbont  consent  of  hsi 

husband,  162. 
community  property  wben  not  liable  for  contracts  of,  167 
inventory  of  separate  property  of,  166. 
e£Fect  of  recording  inventory  of  separate  property  of,  166 
cannot  make  contract  for  payment  of  money,  16i. 
earnings  of,  not  liable  for  debts  of  husband,  168. 
earnings  of,  when  living  separate,  separate  property,  169. 
husband  not  liable  for  debts  of,  contracted  before  marriage,  170 
not  liable  for  debts  of  husband,  171. 
property  of,  liable  for  her  own  debts,  171. 
not  allowed  estiate  in  dower,  173. 
support  of,  174. 

husband  not  liable  for  her  support  if  she  abandons  him,  17r). 
hn.4band  not  bound  to  support  children  of,  by  former  mai'riage 

consent  of,  necessary  for  husband  to  adopt  child,  223.      * 
husband  cannot  select  homestead  from  separate  property  of 

is  "  hekd  of  family,"  1281. 

must  join  husband  in  disposing  of  homestead,  1242. 

may  dispose  of  separate  property  by  will,  1273. 

disposition  of  common  property  in  case  of  death  of,  1401. 

duress  or  menace  of,  avoids  contract  of  husband,  when,  15e&> 
1570. 
See  DivoRCK ;  nD9B.vxi>  and  Win ;  Marsiaok  :  Married  Womxn 
WuLh,  includes  codicils,  14. 

wben  person  of  unsound  mind  may  make,  40 

future  Interest  may  pass  by,  699. 

Spower  may  be  acquired  by,  1000. 

liability  of  persons  acquiring  property  by,  1115 

effect  of,  upon  gift,  1152. 

who  may  make,  12  »0 

procured  by  fraud,  Ac,  may  be  denied  probate,  1272 

revocation  of,  obtained  by  fraud,  &c.,  void,  1272. 

married  woman  may  dispose  of  her  separate  property  by,  IJTJ 

what  may  pass  by,  1274. 

who  may  take  by,  1276. 

written,  how  executed,  1276. 

restrictions  to  charitable  uses,  1313 
Olographic, 

defined,  1277. 

witness  to,  must  state  residence,  12"8 

conjoint  or  mutual,  1279. 

competency  of  subscribing  witness  to,  1280. 

conditional,  1281.  ^  . 

gift  by,  to  s'lbscribing  witness,  when  void,  123avjOOgle 


Mt  ^  INDEX. 

Will  •—  CHographie -w^ertditon  competent  witheems  to,  1 128S. 
witness  to,  when  entitled  to  devise  bj,  1283. 
Toid,  unless  duly  executed,  1285 
eflfect  of  codicil  on,  1287. 

power  to  devise,  how  executed  by  terms  of,  1330. 
execution  and  construction  of  prior,  not  affected  by  the  Code 

1376 
mortgage  on  property  devised  by,  how  satisfied,  294C. 
child  bom  after  making  of,  takes  certain  share,  130ft. 
children  unprevided  for  by,  when  may  succeed,  1307. 
share  of  child  bom  after  making  of,  out  of  what  portion  taken 

1308. 
death  of  devisee  before  testator,  1309, 134^-1344 
devises  of  land  in,  how  construed,  1311. 
subsequently  acquired  title  passes  by,  1312. 
change  of  interest  by,  does  not  affect  insurance,  2£56 
ktterpretation  0/\ 

according  to  intention,  1317. 
to  be  confined  to  written  will,  1818. 
lilies  of,  to  be  observed,  1319. 
several,  to  be  taken  together,  1320 
all  parts  to  be  considered  in,  1321. 
latter  part  controls,  1321. 
distinct  clause  not  affected  by  indistinct,  1822 
in  case  of  ambiguity  or  doubt,  1323. 
words  to  be  taken  in  ordinary  sense,  1324. 
words  to  receive  operative  construction,  1325. 
technical  words,  1327. 
technical  words  not  necessary,  1828. 
to  avoid  intestacy,  1326. 
word  "  heirs  "  not  necessary  to  pass  fee,  1829 
of  devise,  &c.,  of  real  property,  &c.,  lo31. 
of  devise  of  residue  of  real  property,  1332^ 
of  devise,  as  referring  to  time  of  death,  1883. 
to  what  time  words  refer,  1336. 
of  devise  or  bequest  to  a  class^  1887. 
of  words  of  donation  and  limitation,  1835 
of  directions  for  conversion,  1338. 
by  what  law  governed^  1376. 
MtvocatioH  of. 

procured  by  fraud  may  be  annulled,  1272 

of  mutual  will  may  be  effected,  1279 

Toid  unless  duly  executed,  1286.  ; 

of  written  will.  1292.  ^ 

evidence  of,  1^3. 

of  duplicate,  1295. 

by  subsequent  will,  1296. 

subsequent,  does  not  revive  prior  will,  1297. 

by  marriage  aud  birth  of  i.o8ue,  12% 

by  marria^  of  testator,  1299. 

by  marriage  of  testatrix,  1300. 

contract  to  sell  property  disposed  of  by  will,  Is  not,  1801. 

incumbrance  on  property  disposed  of  by  will,  is  not,  UOl 

conveyance,  when  is,  1304.  ^ 

oonveyance,  when  Lb  not,  1308  u  gitized  by  COOQ Ic 

evokes  oodidls,  1805  ^ 


INDEX.  689 

rtaJL—  lUvoetion  o/—  proTisioni  nlatliif  to,  apply  ta  wbaft  willi,  1 1S74 
Munenpativt, 

how  executed,  1288. 

requisites  to  make  ralid,  1289. 

proof  of,  1290. 

probate  of,  1291. 

need  not  be  in  writing,  1276. 
IFinriss.    See  Proof,  1196-11% ;  Will,  1276-1278, 1282-12S3, 1289 

testimony  of,  when  privileged,  47. 
See  UviDEXCi. 
JTOKDa,  glying  Joint  authority,  how  construed,  12. 

eonstruction  of,  13. 

construction  of,  technical,  13< 

wliat  they  include,  14. 

of  inheritance,  not  necessary  to  pass  a  fee,  1072 
Interpretation  of.        . 

doubtful,  1068, 1654. 

to  be  taken  in  ordinary  sense,  1824. 1644. 

when  ambiguous  and  doubtful,  1823. 

technical,  not  necessary  in  will,  1828. 

to  receive  operative  construction  in  will,  1326 

technical,  how  construed,  1327, 1645. 

to  be  given  some  meaning  if  possible,  1326 

in  will,  to  what  time  refer,  1336. 

of  donation  and  limitation  in  will,  183R. 

See  INTIRPBRATIONS. 

VTuT,  defined,  14. 

WaiTiKO.    See  CoNraAOT,  1623-1626, 163»-1640, 1651,  16BS 

defined,  14. 

marriage  settlement  to  be  in,  178. 

consent  to  apprenticeship  to  be  in,  266. 

trusts  in  real  property  must  be  in,  852. 

transfer  may  be  made  without,  when,  1062. 

transfer  in,  called  grant,  1053. 

tamsfer  of  real  property  must  be  In,  1091. 

instruments  in,  pritnh  facie  import  consideration,  1090. 

transfer  of  what  personal  property  to  be  in,  1186. 

will  in,  how  executed,  1276. 

nuncupative  will  need  not  be  in,  1288 

non-negotiable  instrument  in,  transferable,  1469. 

debtor,  on  payment  of  debt,  entitled  to  receipt  in,  1^9 

debtor  may  be  released  by  release  in,  1541. 

authority  of  agent  to  execute  executory  real  Instrument  to  b« 
in,  1782. 

implied  warranty  on  sale  of  executory  instrument  In,  1774. 

earrier-s  obligations  not  altered  except  by  agreement  in,  2174. 

guaranty,  when  must  be  in,  2793. 

power  of  attorney  to  execute  personal  mortfage  most  be  ia 
2959. 
Vftosro,  he  who  consents,  suffers  no,  8515. 

no  one  can  take  advantage  of  his  own,  8517. 

remedy  for  every,  3528. 

law  does  not  interpose  between  parties  equally  in,  8524. 

TiAE,  denned.  14, 1917. 


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