^iil mimi JOSEPH LEO HY/AAN UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY ■% THE CIVIL CODE. THE CIVIL CODE OP THE STATE OF CALIFOKNIA. ADOPTED MARCH 21, 1872. WITH AMENDMENTS UP TO AND INCLUDING THOSE OF THE FORTY-FIRST SESSION OF THE LEGISLATURE, 1915. EDITED BY JAMES H. DEEEING, Of the San Francisco Bar. LEGISLATIVE HISTORY BY CHARLES H. FAIRALL, AUTHOR OF FAIRALL'S CRIMINAL LAW AND PROCEDURE. SAN FRANCISCO: BANCROFT-WHITNEY COMPANY, 1915. /, Copyright, 1915 BY BANCROFT-WHITXEY COMPANY Sax Fraxcisco The Filmer Brothers Electrotype Company Typogeaphebs and Stereotypebs SUMMARY OF CONTENTS. TITLE OF THE ACT. § 1. PRELIMINARY PROVISIONS. §§ 2-21. DIVISION FIRST. PERSONS. §§ 25-653zb. SECOND. PROPERTY. §§ 654-1426s. THIRD. OBLIGATIONS. §§1427-3268." FOURTH. GENERAL PROVISIONS. §§ 3274-3543. DIVISION FIE ST. Part I. Persons. §§ 25-42. II. Personal Rights. §§ 43-54. III. Personal Relations. §§ 55-276. IV. Corporations. §§ 2S3-653zb. PART I. PERSONS. §§ 25-42. PART II. ^ PERSONAL RIGHTS. §§ 43-54. V PART III. PERSONAL RELATIONS. Title I. Marriage. §§ 55-181. II. Parent and Child. §§ 193-230, III. Guardian and Ward. §§ 236-258. "H \ IV. Master and Apprentice. §§264-276. TITLE I. MARRIAGE. Chapter I. The Contract of Marriage. Articles I-III. §§55-80. IL Divorce. Articles I-IV. §§ 82-148. in. Husband and Wife. §§ 155-181. (V) 768178 VI SUMMARY OF CONTENTS, TITLE II. PARENT AND CHILD. Chapter I. Children bv Birth. §§ 193-215. II. Children by Adoption. §§ 221-230. TITLE III. GUARDIAN AND WARD. §§236-258. TITLE IV. MASTER AND APPRENTICE. §§264-276. PART IV. CORPORATIONS. Title I. General Provisions Applicable to All Corporations. §§ 283- 410. II. Insurance Corporations. §§414-453hh. III. Railroad Corporations. §§454-494. rv. Street-railroad Corporations. §§ 497-511. V. Wagon -ROAD Corporations. §§ 512-524. VI. Bridge, Ferry, Wuarf, Chute, and Pier Corporations. §§ 528- 531. VII. Telegraph and Telephone Corporations. §§ 536-541. VIII. Water and Canal Corporations. §§ 548-552. IX. Homestead Corporations. §§ 557-566. X. Savings and Loan Corporations. §§ 571-583b. XL Mining Corporations. §§ 584-590. XIa. Corporations for the Formation of Chambers of Commerce, Boards op Trade, Mechanics' Institutes, and Other Kindred AS.SOCIATIONS. §§ 591-592e. XII. Religious, Social, and Benevolent Corporations §§ 593-605. Xlla. Societies for the Prevention of Cruelty to Children and Ani- mals. §§ 607-607g. XIII. Cemetery Corporations. §§ 608-616. XIV. A<;ricultural Fair Corporations. §§ 620-622. ' XV. Corporations to Furnish Light for Public Use. §§ 628-632. XVI. Land and Building Corporations. §§ 633-648a. XVII. Colleges and Seminaries of Learning. §§649-651. XVIII. Consolidation of Colleges and Institutions of Higher Edu- cation. §§ 652, 653. XIX. Co-operative Business Corporations. § 653a. XX. Co-operative Business Associations. §§653b-6531. XXI. Non-profit Co-operative Agricultural, Viticultural and Hor- ticultural AS.SOCIATIONS. §§ 653m-653s. - XXTT. Non-profit Co-operative Corporations. §§ 653t-653zb. SUMMARY OF CONTENTS. Vll TITLE I. GENEEAL PROVISIONS APPLICABLE TO ALL CORPORATIONS. Cha|1fer I. Formation of Corporations. Articles I, 11. §§ 283-321b. IL Corporate Stock. Articles I, II. §§ 322-349. III. Corporate Powers. Articles I-IV. §§ 354-393. IV. Extension and Dissolution of Corporations. §§ 399-403. V. General Provisions Affecting Corporations. §§ 403, 404. VI. Foreign Corporations. §§ 405-410. TITLE II. INSURANCE CORPORATIONS. Chapter I. General Provisions. §§ 414-422. II. Fire, Marine, and Title Insurance Corporations. §§424-432. III. Mutual Life, Health, and Accident Insurance Corporations. §§ 437-452. IV. Mutual Benefit and Life Associations. §§ 452a, 453. V. Corporations to Discover Fire and Save Property and Human Life from Destruction Thereby. §§ 453a-453c. VI. Life, Health, Accident, and Annuity or Endowment Insurance on the Assessment Plan. §§ 453d-453p. VII. Title Insurance Corporations. §§ 453s-453z. VIII. Mortgage Insurance. §§ 453aa-453hh. TITLE III. RAILROAD CORPORATIONS. Chapter I. OflBcers and Corporate Stock. §§ 454-459. II. Enumeration of Powers. §§465-478. III. Business, How Conducted. §§ 479-494. TITLE IV. STREET-RAILROAD CORPORATIONS. §§497-511. TITLE V. WAGON-ROAD CORPORATIONS. §§ 512-524. TITLE VI. BRIDGE, FERRY, WHARF, CHUTE, AND PIER CORPORATIONS. §§ 528-531. TITLE VII. TELEGRAPH AND TELEPHONE CORPORATIONS. §§ 536-541. TITLE VIII. WATER AND CANAL CORPORATIONS. §§ 548-552. TITLE IX. HOMESTEAD CORPORATIONS. §§557-566. vm SUMMAKV OF CUNTKNTS. TITLE X. SAVINGS AND LOA.X ( ( ) IJl'OK'ATlONy. S§571-r)S3b. TITLE XL MINING COKM'OKWTIONS. §§ 584-590. TITLE Xln. CORPORATION'S FOR TIIP] RliniATION OF CHAMBERS OF COM- MERCE, BOARDS OF TRADE, MECHANICS' INSTITUTES, AND OTHER KINDRED ASSOCIATIONS. §§ 591-592e. TITLE XIL RELIGIOUS. SOCIAL. AND BENEVOLENT CORPORATIONS. §§593- 605. TITLE Xlla. SOCIETIES FOR THE PREVENTION OF CRUELTY TO CHILDREN AND ANIMALS. §§ fi07-607g. TITLE XIII. CEMETERY CORPORATIONS. §§ 608-616. TITLE XIV. AGRICI'LTURAL FAIR CORPORATIONS. §§620-622. TITLE XV. CORPORATIONS TO FURNISH LIGHT FOR PUBLIC USE. §§628- 632. TITLE XVI. LAND AND BUILDING CORPORATIONS. §§ 633-648a. TITLE XVII. COLLEGES AND SEMINARIES OF LEARNING. §§ 649-651. TITLE XVIII. CONSOLIDATION OF COLLFGES AND INSTITUTIONS OF HIGHER EDUCATION. §§ 652, 653. TITLE XIX. CO-OPERATIVE BUSINESS CORPORATIONS. § 653ji. SUMMARY OF CONTENTS. IX TITLE XX. CO-OPERATIVE BUSINESS ASSOCIATIONS. §§ 653b-653 1. TITLE XXI. NON-PROFIT CO-OPERATIVE AGRICULTURAL, VITICULTURAL AND HORTICULTURAL ASSOCIATIONS. § 653m-653s. TITLE XXIL NON-PROFIT CO-OPERATIVE CORPORATIONS. §§ 6o3t-653zb. DIVISION SECOND. Part I. Property in General. §§ 654-749. II. Real or Immovable Property. §§ 755-940. III. Personal or Movable Property. §§ 946-995. IV. Acquisition of Property. §§ 1000-1426s. PART I. PROPERTY IN GENERAL. Title I. Nature of Property. §§ 654-663. II. Ownership. §§ 669-742. III. General Definitions. §§ 748, 749. TITLE I. NATURE OF PROPERTY. §§ 654-663. " TITLE 11. OWNERSHIP. Chapter I. Owners. §§ 669-672. II. Modifications of Ownership. Articles I-IV. §§ 678-726. III. Rights of Owners. §§ 732, 733. IV. Termination of Ownership. §§ 739-742. TITLE III. GENERAL DEFINITIONS. §§ 748, 749. SUMMARY OF CONTENTS. PART II. REAL OR IMMOVABLE J'ROPHRTY. Title I. General Provisions. § TS."). H. Estates IN Real Property. §§7(51-811. III. RiuHTs AND Obligations of Owners. §§ 818-843. rv. Uses and Trusts. §§ 847-871. V. Powers. §§878-940. [Repealed.] TITLE I. GENERAL PROVISIONS. § 755. TITLE IT. ESTATES IN REAL PROPERTY. \ Chapter I. Estates in General. §§ 761-781. I IL Termination of Estates. §§ 789-793. III. Servitudes. §§ 801-811. TITLE TIL RIGHTS AND OBLIGATIONS OF OWNERS. Chapter L Rights of Owners. Article's T, IL §§818-834. I IL Obligations of Owners. §§ 840-843. TITLE IV. USES AND TRUSTS. §§ 847-871. TITLE V. POWERS. §§878-940. [Repealed.] PART III. PERSONAL OR MOVABLE PROPERTY. Title I. Personal Property in General. §§ 946, 94J. IL Particular Kinds of Personal Property. §§ 953-995. TITLE I. PERSONAL PROPERTY IN GENERAL. §§946, 947. SUMMAEY OP CONTENTS. XI TITLE II. PARTICULAE KINDS OF PERSONAL PROPERTY. Chapter I. Things in Action. §§ 953, 955. II. Shipping. Articles I, II. §§ 960-973. III. Products of the Mind. §§ 980-985. IV. Other Kinds of Personal Property. §§ 991-995. PAET IV. ACQUISITION OF PROPERTY. Title I. Modes in Which Property may be Acquired. §§ 1000, 1001. I II. Occupancy. §§ 1006, 1007. III. Accession. §§ 1013-1033. IV. Transfer. §§ 1039-1231. V. Homesteads. §§ 1237-1269c. VI. Wills. §§ 1270-1377. VII. Succession. §§ 1383-1409. VIII. Water Eights. §§ 1410-1422. IX. Hydraulic Mining. §§ 1424, 1425. X. Mining Claims, Tunnel Rights, and Mill Sites. §§ 1426- 1426s. TITLE I. MODES IN WHICH PROPERTY MAY BE ACQUIRED. §§ 1000, 1001. TITLE II. OCCUPANCY. §§ 1006, 1007. TITLE III. ACCESSION. Chapter I. To Real Property. §§ 1013-1019. II. To Personal Property. §§ 1025-1033. TITLE IV. TRANSFER. Chapter I. Transfer in General. Articles I-V. §§ 1039-1085. II. Transfer of Real Property. Articles I, II. §§ 1091-1115. III. Transfer of Personal Property. Articles I-III. §§ 1135-1153. IV. Recording Transfers of Real Property. Articles I-IV. §§ 1158-1218. V. Unlawful Transfers. §§ 1227-1231. TITLE V. HOMESTEADS. Chapter I. General Provisions. §§ 1237-1261. II. Homestead of the Head of a Family. §§ 1262-1265. III. Homestead of Other Persons. §§ 1266-1269. rV. Alienation of Homesteads of Insane Persons. §§ 1269a-1269c. Xn SUMMARY OF CONTENTS. TITLE VI. WII-LS. Chapter I. ExiH'iitimi niid Kovocation of Wills. §§ 1270-1313. II. Iiitor|)n'tati(ni of Wills, and Effect of Various Provisions. §§ 1317-13r)l. 111. General Provisions Kciatinjf to Wills. §§ 13r)7-1377. ] TITLE VII. SUOCESSTOX. §§1383 1109. I TITLE VIII. W.VTER RIGHTS. §§ 1410-1422. TITLE IX. HYDRAULIC MINING. §§ 1424, 1425. TITLE X. MINING CLAIMS, TUNNEL RIGHTS, AND MILL SITES. §§ 1426- 1426s. DIVISION THIRD. Part I. Obligations in General. §§ 1427-1543. II. Contracts. §§ 1549-1701. III. Obligations Imposed by Law. §§ 1708-1715. rv. Obligations Arising from Particul^vr Transactions. §§ 1721- 3268. PART I. OBLIGATIONS IN GENERAL. Title I. Definition of Obligations. §§ 1427, 1428. II. Interpretation of Obligations. §§ 1429-1451. III. Transfer op Obligations. §§ 1457-1468. IV. Extinction op Obligations. §§ 1473-1543, TITLE I. DEFINITION OF OBLTCATTONS. §§1427, 1428. SUMMARY OF CONTENTS. XUi TITLE II. INTERPRETATION OF OBLIGATIONS. Chapter I. General Rules cf Intorpretation. § 1429. II. Joint or Several Obligations. §§ 1430-1432. III. Conditional Obligations. §§ 1434-1442. IV. Alternative Obligations. §§ 1448-1451. TITLE III. TRANSFER OF OBLIGATIONS. §§ 1457-1468. TITLE IV. EXTINCTION OF OBLIGATIONS. Chapter I. Performance. §§ 1473-1479. 11. Offer of Performance. §§1485-1505. III. Prevention of Performance or Offer. §§ 1511-1515. IV. Accord and Satisfaction. §§ 1521-1524. V. Novation. §§ 1530-1533. VL Release. §§ 1541-1543. v PART II. CONTRACTS. Title. I. Nature of a Contract. §§ 1549-1615. II. Manner of Creating Contracts. §§ 1619-1629. in. Interpretation of Contracts. §§ 1635-1661. IV. Unlawful Contracts. §§ 1667-1676. V. Extinction of Contracts. §§ 1682-1701. TITLE I. NATURE OF A CONTRACT. Chapter I. Definition. §§ 1549, 1550. II. Parties. §§ 1556-1559. IIL Consent. §§ 1565-1589. IV. Object. §§ 1595-1599. V. Consideration. §§ 1605-1615. TITLE II. MANNER OF CREATING CONTRACTS. §§ 1619-1629. TITLE III. INTERPRETATION OF CONTRACTS. §§ 1635-1661. TITLE IV. UNLAWFUL CONTRACTS. §§ 1667-1676. xiv SUMMARY OP CONTENTS. TITLE V. EXTINCTION OF CONTRACTS. Chaptor I. Contracts, How Extinguished. § 1682. ir. Rescission. §§1088-1691. 111. Alteration and Cancellation. §§ 1697-1701. PART III. OBLIGATIONS IMPOSED BY LAW. §§ 1708-1715. PART IV. OBLIGATIONS ARISING FROM PARTICULAR TRANS- ACTIONS. Title L Sale. §§ 1721-1798. IL Exchange. §§1804-1807. in. Deposit. §§ 1813-1878. rV. Loan. §§ 1884-1920. V. Hiring. §§ 1925-1959. VI. Service. §§ 1965-2079. VIL Carriage. §§ 2085-2209. VIIL Trust. §§ 2215-2289. IX. Agency. §§ 2295-2389. X. Partnership. §§ 2395-2520. XL Insurance. §§ 2527-2766. XIL Indemnity. §§ 2772-2781. XIIL Guaranty. §§ 2787-2866. XIV. Lien. §§ 2872-3080. XV. Negotiable Instruments. §§ 3086-3262. XVI. General Provisions. § 3268. TITLE I. SALE. Chapter I. General Provisions. Articles I-IIT. §§ 1721-1741. II. Rights and Obligations of the Seller. Articles I-III. §§ 1748- 1778. UL Rights and Obligations of the Buyer. §§ 1784-1786. rV. Sale by Auction. §§ 1792-1798. TITLE IL EXCHANGE. §§ 1804-1807. SUMMARY OF CONTENTS. XV TITLE III. DEPOSIT. Chapter I. Deposit in General. Articles I, II. §§ 1813-1828. II. Deposit for Keeping. Articles I-V. §§ 1833-1872. III. Deposit for Exchange. § 1878. TITLE IV. LOAN. Chapter T. Loan for Use. §§ 1884-1896. II. Loan for Exchange. §§ 1902-1906. in. Loan of Money. §§ 1912-1920. TITLE V. HIRING. Chapter I. Hiring in General. §§ 1925-1935. IL Hiring of Real Property. §§ 1941-1950. in. Hiring of Personal Property. §§ 1955-1959. TITLE VL SERVICE. Chapter I. Service with Employment. Articles I-IV. §§ 1965-2003. II. Particular Employments. Articles I-VL §§ 2009-2072. III. Service without Employment. §§ 2078, 2079. TITLE VIL CARRIAGE. Chapter L Carriage in General. §§ 2085-2090. IL Carriage of Persons. Articles I, II. §§ 2096-2104. III. Carriage of Property. Articles I-V. §§ 2110-2155. IV. Carriage of Messages. §§ 2161, 2162. V. Common Carriers. Articles I-IV. §§ 2168-2209. TITLE VIII. TRUSTS. Chapter I. Trusts in General. Articles I-IIL §§ 2215-2244. IL- Trusts for the Benefit of Third Persons. Articles I- VI. §§ 2250-2289. TITLE IK. AGENCY. Chapter I. Agencv in General. Articles I-VL §§ 2295-2356. IL Particular Agencies. Articles I-IV. §§ 2362-2389. XVI SU.MMAKV OF CONTENTS. TITLE X. rABTNERSlllP. I Chapter I. I'artnorshi|. in Goiur.il. Articlps I-IV. §§ 2:?0.1-241S. I li. (ioncral Pa.rtnorsliip. Articles I-VII. §§ Ii424-1'472. \ III. Spocial rartnorship. Articles I-IV. §§2477-2510. \ rV. :\Iiniiig PartiHM-sliip. §§ 2.')ll-2rv_>0. TITLE XL INSURANCE. Chapter L Insurance in General. Articles I-XIT. §§ 2527-2649. II. Marine Insurance. Articles I-IX. §§ 2(555-2746. ITT. Fire Insurance. §§ 2752-2757. IV. Life and Health Insurance. §§ 2762-2766. TITLE Xll. INDEMNITY. §§ 2772-2781. TITLE XIII. GUARANTY. Chapter T. Guaranty in General. Articles I-VI. §§ 2787-2825. II. Suretyship. Articles I-V. §§ 2831-2866. TITLE XIV. LIEN. Chapter I. Liens in General. Articles I-VI. §§ 2872-2913. II. Mortgage. Articles I-III. §§ 2920-2973. III. Pledge. §§2986-3011. rV. Bottomry. §§ 3017-3029. V. Respondentia. §§ 3036-3040. VL Other Liens. §§3046-3065. VII. Stoppage in Transit. §§ 3076-3080. TITLE XV. NEGOTIABLE INSTRUMENTS. Chapter I. Negotiable Instruments in General. Articles I-VII. §§ 3086- 3165. II. Bills of Exchange. Articles I-VIII. §§3171-3228. III. Promissory Notes. §§3244-3248. IV. Checks. §§3254, 3255. V. Bank Notes and Certificates of Deposit. §§ 3261, 3262. TITLE XVI. GENERAL PROVISIONS. § 3268. SUMMARY OF CONTENTS. XVll DIVISION FOURTH. Part I. Relief. §§ 3274-3423. II. Special Relations of Debtor and Creditor. III. Nuisance. §§ 3479-3503. rv. Maxims OF Jurisprudence. §§3509-3543. §§ 3429-3473. PART I. RELIEF. Title T. Relief in General. §§ 3274, 3275. II. Compensatory Relief. §§ 3281-3360. in. Specific and Preventive Relief. §§ 3366-3423. TITLE I. RELIEF IN GENERAL. §§ 3274, 3275. TITLE II. COMPENSATORY RELIEF. Chapter L Damages in General. Articles I-ITT. §§ 3281-3294. IL Measure of Damages. Articles I-IV. §§ 330U-3360. TITLE III. SPECIFIC AND PREVENTIVE RELIEF. Chapter I. General Principles. §§ 3366-3369. II. Specific Relief. Articles I-VL §§ 3375-3415. IIL Preventive Relief. §§3420-3423. PART II. SPECIAL RELATIONS OF DEBTOR AND CREDITOR. Title L General Principles. §§ 3429-3433. II. Fraudulent Instruments and Transfers. §§ 3439-3442. III. Assignments fob the Benefit of Creditors. §§ 3449-3473. TITLE I. GENERAL PRINCIPLES. §§ 3429-3433. TITLE II. FRAUDULENT INSTRUMENTS AND TRANSFER. §§3439-3442. TITLE III. ASSIGNMENT FOR THE BENEFIT OF CREDITORS. §§3449-3473. PART III. NUISANCE. Title T. Generai, Principles. §§ 3479-3484. II. I'l'Bi.ic Nuisances. §§ 3490-;i49;"). III. Private Nuisances. §§3501-3503. TITLE I. GENERAL PRINCIPLES. §§ 3479-3484. TITLE TL PUBLIC NUISANCES. §§ 3490-3495. TITLE III. PRIVATE NUISANCES. §§ 3501-3503. PART IV. MAXIMS OF JURISPRUDENCE. §§ 3509-3543. APPENDIX. Pajie Acknowledgments 839 Animals 840 Banking 842 Bonds 940 Corporations 941 Deeds 950 g ijardians 951 Homesteads 951 Infancy 952 Insurance 953 Irrigation 964 Liens 964 Master and Servant 967 Mines and Mining 967 Orphans 968 Railroads 969 INDEX. THE CIVIL CODE OF THE STATE OF CALirOKNIA. IN FOUR DIVISIONS. Title of the Act. § 1. ^ Preliminary Provisions. §§ 2-21. Division First. Persons. §§ 25-653zb. Second. Property. §§ 654-1426s. Third. Obligations. §§ 1427-3268. Fourth. General Provisions. §§ 3274-3543. Civ. Code — 1 (1) THE CIVIL CODE OF THE STATE OF CALIFORNIA. AN ACT TO ESTABLISH A CIVIL CODE. [Approved March 21, 1872.] The People of the State of California, represented in Senate and Assembly, do enact as follows: TITLE OF THE ACT. § 1. Title and divisions of this act. § 1. Title and divisions of this act. This act shall be known as The Civil Code of the State of California, and is in four divisions, as follows: I. The first relating to persons. II. The second to property. III. The third to obligations. IV. The fourth contains general provisions relating to the three preceding divisions. This act, how cited; See post, § 21. Legislation § 1. Enacted March 21, 1872. THE CIVIL CODE OF THE STATE OF CALIFORNIA. PRELIMINAEY PROVISIONS. § 2. When this code takes effect. § 3. Not retroactive. § 4. Rules of construction. § 5. Provisions similar to existing laws, how construed. § 6. Actions, etc., not affected. § 7. Holidays. Saturday half -holiday. Public schools. § 8. Same. [Repealed.] § 9. Business days. § 10. Computation of time. § 11. Certain acts not to be done on holidays. § 12. Joint authority construed. § 13. Words and phrases, how construed. § 14. Words. Definition. Signification of words. § 15. Good faith, what constitutes. [Repealed.] § 16. Degrees of care and diligence. [Repealed.] (3) § 4 CIVIL CODE. 4 § 17. Pojjroos of nogligcnce. [Repealed.] § IS. Notii'e, iu'tiial ami constructive. § 19. (.'oust ructive notice, when deemed. § 20. Effect of repeal. § 21. This aet, how cited. § 2. When this code takes effect. This code takes effect at twi'lvi' o'clock noon, on the lirst chiy ol" January, eighteen liundred and seventy-tliree. Effect of codes. Generally: Soo Pol. Code, §§ 4478 et seq. Similar provision in other codes: See Code Ci^: Proc, § 2; Pen. Code, § 2; Pol. Codo, § 2. Publication of the codes: See Pol. Code, § 4494. Legislation § 2. Euaclo.l ^raroh 21, 1872; based on ImcUI's Draft, N. Y. Civ. Code, § 2034. §3. Not retroactive. No part of it is retroactive, unless expressly so declared. Legislation § 3. Enacted March 21, 1872. § 4. Rules of construction. The rule of the common law^, that statutes in derouation thereof are to be strictly construed, has no application to this code. The code estal)lishes the law of this state respecting the subjects to which it relates, and its provisions are to be liberally construed with a view to effect its objects and to promote justice. Effect of codes. Generally: See Pol. Code, §§ 4478 et seq. Legislation § 4. 1. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, §2032. 2. Amendment by Stats. 1901, p. 332, and held unconstitutional, in Lewis V. Dunne, 134 Cal. 291; Mr. .Justice McFarland saying, "The said act ... is unconstitutional, and void for all purposes, and is in- operative to change or in any way affect the law of the state as it stood immediately before the approval' of said act. . . . The act covers one hundred and fifty pages of the published statutes of 1901; it amends over four hundred sections; it repeals nearly one hundred sec- tions; it changes the numbers of other sections; it adds a great many new sections; and it contains this clause, 'Certain title and chapter headings . . . are hereby inserted, changed, and amended,' and then follow several pages of insertions, changes, and amendments of such headings. . . . We are forced to the conclusion that this act is a re- vision, and void for want of re-enactment and publication at large of the revised law." Thus the attempted repeals or attempted amend- ments of the Civil Code as embodied in the act of the legisla- turef of 1901 were declared unconstitutional and void. This act was the result of an act approved March 2.5, 189.5 (Stats. 189.5, p. 345), whereby the legislature created and established "a commission for revising, S3'stematizing, and reforming the laws of this state," and provided that "said commission, to be known as 'The Commissioners for the Revision and Reform of the Law,'" should be appointed by the governor. This commission was duly appointed, and thereafter filed with the secretary of state a report reicommending, among other things, a revision of the Civil Code, and the legislature (Stats. 1901, p. 117) embodied their recommendations in the act declared "unconstitutional, and void for all purposes." 5 PRELIMINARY PROVISIONS. § 7 §5. Provisions similar to existing laws, how construed. The provisions of this code, so far as they are substantially the same as existing statutes or the common law, must be con- strued as continuations thereof, and not as new enactments. Legislation § 5. 1. Enacted March 21, 1872; based on Mass. Rev. Laws 1858, c. clxxxii, § 9; the code commissioners saying of this section, that it "is of doubtful propriety, though drawn from high authority." 2. Amendment by Stats. 1901, p. 332; unconstitutional. See note, § 4, ante. § 6. Actions, etc, not affected. No action or proceeding commenced before this code takes effect, and no right accrued, is affected by its provisions. Similar provisions: See Code Civ. Proc, § 8; Pol. Code, § 8. Amendments to the Civil Code. The amendatory act of March 30, 1874 (Code Amdts. 1873-74, pp. 181-269), from which most of the amendments and new sections of the Civil Code are taken, contained the three following sections (sees. 286, 287, 288): "Sec. 286. Eepeals, limitations, etc. All provisions of law incon- sistent with the provisions of this act are hereby repealed, but no rights acquired or proceedings taken under the provisions repealed shall be impaired or in any manner affected by this repeal, and whenever a limitation or period of time is prescribed by such repealed provisions for acquiring a right or barring a remedy, or for any other purpose, has begun to run before this act takes effect, and the same or any other limitation is prescribed by this act, the time of limitation which shall have run when this act takes effect shall be deemed part of the time prescribed by this act." "Sec. 287. Effect of amendatory act of 1873-74. With relation to the laws passed at the present session of the legislature, this act must be construed as though it had been passed on the 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 the provisions of this act, the provisions of such law must prevail." "Sec. 288. Time of taking effect. This act shall take effect on the first day of July, eighteen hundred and seventy-four." Legislation § 6. Enacted March 21, 1872. § 7. Holidays. Saturday half -holiday. Public schools. Holi- days within the meaning of this code, are every Sunday, the first day of January, the twelfth day of February to be known as Lincoln day, twenty-second day of February, thirtieth day of May, fourth day of July, ninth day of September, first Monday in September, twelfth day of October, to be known as "Columbus day," tAventy-fifth day of December, every day on which an election is held through 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 holi- day. If the first day of January, twelfth day of February, twenty- second day of February, the thirtieth day of May, the fourth day of July, the ninth day of September, the twelfth day of i; / CIVIL CODE. b Octobof ov tlu> Iwi'iity-lil'tli day of December falls upon a Siimlay, tlio Motulay ioilowiii^: is a holiday. Every Saturday from twelve o'eloek uoou till twelve o'clock midnight is a holiday as regai'ds the trausaetiou of business ill the i)ul)lio ofdees of this state, and also in political divisions tiieret)l" where laws, ordinanees or charters provide that public ollrtces shall be closed on holidays; this shall not be construed to prevent or invalidate the issuance, filing, service, execu- tion or recording of any legal process or written instrument whatever on such Saturday afternoons; and provided further, that the public schools of this state shall close on Saturday, Sunday, the first day of January, the thirtieth day of May, the fourth day of July, the twenty-fifth day of December and on every day appointed by the President of the United States or the governor of this state for a public fast, thanksgiving or holiday. Said public schools shall continue in session on all other legal holidays and shall hold proper exercises com- memorating the day. Boards of school trustees and city hoards of education shall have power to declare a holiday in the public schools under their jurisdiction when good reason exists therefor. [Amendment approved 1911; Stats. 1911, p. 520.] Legislation § 7. 1. Enapted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, §2017; Stats. 1851, p. 523; Stats. 1861, p. 310), and then roail: "Iloiidays, within the meaning of this code, are: every Sunday, the first day of January, the twenty-second day of February, the fourth day of -Tuly, the twenty-fifth day of December, every day on which an election is held throughout the state, and every day appointed by the President of the United States or by the governor of this state for a public fast, thanksgiving, or holiday." 2. Amended by Code Amdts. 1880, p. 9, adding (1) "the thirtieth (30th) day of May," and (2) at the end of the section, "If the first day of January, the twenty-second day of February, the thirtieth day of May, the fourth day of July, or the twenty-fifth day of December, fall upon a Sunday, the Monday following is a holiday." 3. Amended by Stats. 1889, p. 47, adding "the ninth day of Sep- tember" in both places. 4. Amended by Stats. 1893, p. 186, adding "the first Monday of Octo- ber." 5. Amended by Stats. 1897, p. 14, changing "the first Monday of October" to "the first Monday of September." 6. Amended by Stats. 1907, p. 565, adding "Every Saturday from twelve o'clock noon until twelve o'clock midnight is a holiday as re- gards the transaction of business in the public oflHces of this state, and also in political divisions thereof where laws, ordinances, or char- ters provide that [lublic offices may be closed on holidays; provided, this shall not be construed to prevent or invalidate the issuance, filing, service, execution, or recording of any legal process or written instru- ment whatever on such Saturday afternoons'; the code commissioner saying, "Merely adds the Saturday half-holiday to the section so as to make it conform to § 10 of the Code of Civil Procedure, as amended in 1907." 7 PRELIMINARY PROVISIONS. § 10 7. Amended by Stats. Extra Sess. 1907, p. 5, (1) adding (a) "and such days as the governor may declare as special holidays" before "If the first day of January," and (b) "Provided further, that the gov- ernor of the state may declare special holidays and he may in one proclamation designate one or any number of consecutive days as special holidays and during any such special holidays no public duty shall be suspended or prohibited except such as affect the adminis- tration of justice in the courts of this state as prescribed by section 135 of the Code of Civil Procedure." 8. Amended by Stats. 1909, p. 23, to read: "Holidays, within the meaning of this code, are every Sunday, the first day of January, the twenty-second day of February, the thirtieth day of May, the fourth day of July, the ninth day of September, the first Monday in Sep- tember, the twelfth day of October to be known as 'Discovery Day,' ■ the twenty-fifth day of December, every day on which an election is held throughout the state, and every day appointed by the Presi- dent 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, the twelfth day of October or the twenty-fifth day of December fall upon a Sunday, the Monday follow- ing is a holiday. Every Saturday from twelve o'clock noon until twelve o'clock midnight is a holiday as regards the transaction of business in the public ofiiees of this state, and also in political divisions thereof where laws, ordinances or charters provide that public offices may be closed on holidays; provided, this shall not be construed to prevent or invalidate the issuance, filing, service, execution or record- ing of any legal process or written instrument whatever on such Sat- urday afternoons." 9. Amended by Stats. 1911, p. 520. §8. Same. [Repealed 1905; Stats. 1905, p. 11.] Legislation § 8. 1. Enacted March 21, 1872. 2. Eepeal by Stats. 1901, p. 332; unconstitutional. See note, § -i, ante. 3. Eepealed by Stats. 1905, p. 11. §9. Business days. All other days than those mentioned in section seven are to be deemed business days for all pur- poses. [Amendment approved 1905; Stats. 1905, p. 11.] Holidays, etc.: See post, § 11. Iiegislation § 9. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 2019. 2. Amendment by Stats. 1901, p. 332; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1905, p. 11, changing "the last two sections" to "section seven." §10. Computation of time. The time in which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last day is a holiday, and then it is also excluded. Time, how computed. Year, week, and day, defi.ned: See Pol. Code, §§3255 et seq. Legislation § 10. Enacted March 21, 1872. § 14 civil, cDnK. 8 § 11. Certiiin acts not to be done on holidays. Whenever any aet of a seeular niitiire. other than a work ol: neeessity or nierey, is appointed hy law or eonlraet to be performed upon a partieuhir (.lay, whieh day falls upon a holiday, it may be performed upon the next business day, with the same effect as if it had been performed upon the day appointed. Legislation § 11. Enat-totl I^Iaroh 21, 1872; based on Field's Drari, X. Y. Civ. Co.lc, § 201^0. § 12. Joint authority construed. Words j^iving a joijit au- thority to three or more public oflicers or other persons are con- strued as giving such authority to a majority of them, unless it is otherwise expressed in the act giving the authority. Similar provisions; Code Civ. Proc, § 15; Pol. Code, § 15. Legislation § 12. Kiiacted Marcli '21, 1872. § 13. Words and phrases, how construed. Words and phrases are construed according to tin; context and the ap- proved usage of the language; but technical woi-ds and phrases, and such others as may have ac(iuired a })eculiar and appro- priate meaning in law, or are defined in tlui succeeding section, are to be construed according to such peculiar and appro])riate meaning or definition. Similar provisions: Scm' Code Civ. Prop., § IG; Pol. Code, § 10. Technical words, how construed: See i)ost, §S 11527, 1645. Words and phrases. How construed. The above is the geucial rule with re^^ard to the coiistnietioii of words, whether in contracts, statutes, or constitutions. The meaning to be given to words in contracts is pro- vided for post, §§ 1644, 1645, and in Code Civ. Proc, § 1861. Legislation § 13. Enacted March 21, 1872; based on Field's Draft, X. Y. Civ. Code, § 1999, enlarged from the Massachusetts statute. § 14. Words. Definition. Signification of words. Words used ill this code in the [)i'e,sent tense include the future as well as the present; words used in the masculine gender in- clude the feminine and neuter; the singular number includes the plural, and the plural the singular; the w^ord person in- cludes a corporation as well as a natural person; county in- cludes city and county; writing includes printing and type- writing: oath includes affirmation or declaration; and every mode of oral statement, under oath or affirmation, is endn-aced by the term "testify," and eveiy written one in the term "depose"'; signature or subscription includes mark, Avhen the I)eri5on cannot write, his name being written near it, by a person who writes his own name as a witness; provided, that when a signature is by mark it must in order that the same may be acknowledged or may serve as the signature to any sworii .statement be witnes.sed by two persons who must sub- Bciibe their own names as witnesses thereto. The following 9 PRELIMINARY PROVISIONS. § 14 words have in this code the signification attached to them in this section, unless otherwise apparent from the context: 1. The word "property" includes property real and personal; 2. The words "real property" are coextensive with lands, tenements, and hereditaments; 3. The words "personal property" include money, goods, chattels, things in action, and evidences of debt; 4. The word "month" means a calendar month, unless other- wise expressed ; 5. The word "will" includes codicil ; 6. The word "section" whenever hereinafter employed re- fers to a section of this code, unless some other code or statute is expressly mentioned. [Amendment approved 1903; Stats. 1903, p. 407.] Similar provisions: Pol. Code, § 17; Code Civ. Proc, § 17; Pen. Code, §7. Words used in boundaries, defined: Pol. Code, §§ 3903-3907. Legislation! 14. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, §§ 2000-2005, 2013-2016, 2023-2030), and then read: "Whenever the terms mentioned in this section are employed in this code, they are employed in the senses hereafter afSxed to them, except where a different sense plainly appears: 1. The term 'signature' in- cludes any name, mark, or sign written with intent to authenticate any instrument or writing. 2. The words 'writing' and 'written' in- clude 'printing' and 'printed,' except in the case of s-ignatures, and where the words are used by way of contrast to printing. Writing may be made in any manner, except that when a person entitled to require the execution of a writing demands that it be made with ink it must be so made. 3. The word 'paper' means any flexible material upon which it is usual to write. 4. The term 'writing' includes both printing and writing. 5. The term 'land' and the phrases 'real estate' and 'real property' include lands, tenements, and hereditaments, and all rights thereto and interests therein. 6. The words 'personal prop- erty' include money, goods, chattels, evidence of debt, and 'things in action.' 7. The word 'property' includes personal and real property. 8. The words 'compound interest' mean interest added to the prin- cipal as the former becomes due, and thereafter made to bear interest. 9. The word 'year' means a calendar year, and 'month' a calendar month, unless otherwise expressed. Fractions of a year are to be com- puted by the number of months — thus, half a year is six months. Fractions of a day are to be disregarded in computations which include more than one day, and involve no questions of priority. 10. The abbreviation 'A. D.' is equivalent to the expression 'year of our Lord.' 11. The word 'oath' includes 'aflSrmation' in all cases where an affirma- tion may be substituted for an oath; and in like cases the word 'swear' includes the word 'af3Srm.' Every mode of oral statement under oath or affirmation is embraced by the term 'testify,' and every written one in the term 'depose.' 12. "The word 'state,' when applied to the dif- ferent parts of the United States, includes the District of Columbia and the territories, and the words 'United States' include the District and territories. 13. Where the term 'person' is used to designate the party whose property may be the subject of any offense, action, or pro- ceeding, it includes this state, any other state, government, or country § l{\ CIVIL CDDK. 10 whi.h may lawfully own any pioiiorty witliiii this state, and all public and privato coriiorations. or joint associations, as well as individuals. 14. The word 'pi'ison,' oxcopt wlion used by way of t-ontrast, includes not only luitnan boinjjs, but bodies politic or corporate. If). The phrase 'third persons' includes all who are not parties to the obligation or transaction concerninfj; which the jihrase is used. IG. The phrase 'persons of un.sound mind' includes idiots, lunatics, imbeciles, and habit- ual drunkards. 17. The term 'children' includes children by birth and bv adoption. IS. Words used in the singular number include the plural, and the plural the singular. 19. The word 'several,' as used in relation to number, means two or more. 20. Words used in the mas- culine gender comiirehend as well the feminine and neuter. 21. Words used in the present tense include the future, but e.xcludo the past. 22. The word 'will' includes 'codicils.' 2^^. The word 'writ' signifies an order or precept in writing issued in the name of the people or of a court or judicial otticer. 'Process' is a writ or summons issued in the course of judicial ])roceediugs. 24. Except as used in Part II of Division IV of this code, the word 'debtor' includes within its meaning every one who owes to another the performance of an obligation, and the word 'creditor' every one to whom the performance is due. 25. The words •usual' and 'customary' mean according to usage. 26. The word 'usage' means a reasonable and lawful public custom, concerning transactions of the same nature as those which are to be affected thereby existing at the place where the obligation is to be performed, and cither known to the parties or so well established, general, and uniform, that they must be presumed to have acted with reference thereto. 27. The word 'verdict' includes not only the verdict of a jury, but also the finding upon the facts by a judge or of a referee appointed to try the case. 28. The word 'value' or the phrase 'valuable consideration' means a thing of value parted with or a new obligation assumed at the time of obtaining a thing which is a substantial compensation for that which is obtained thereby. 29. When the seal of a court, public officer, or officer is required by law to be affixed to any paper, the word 'seal' includes an impression of such seal upon the paper alone, as well as upon wax or a wafer affixed thereto." 2. Amended by Code Amdts. 1873-74, p. 181, to read as at present, except for the amendments of 1903. 3. Amendment by Stats. 1901, p. 332; unconstitutional. See note, § 4, ante. 4. Amended by Stats. 1903, p. 407, (1) in introductory paragraph, (a) adding "countv includes city and county," and "and typewriting" after "printing," (b) omitting "and written" before "by a person," (c) add- ing the i)roviso, an. § 30. Persons made adults by other states, considered as such in this state, when domiciled herein, [ixepealed 1874; Code Anults. 187o-74, p. 182. J Legislation § 30. 1. Enacted March 21, 1872. 2. 1^'iH'alod by Cude Anults. 1873-74, p. 182. § 31. Minors by the laws of other state or country, how con- sidered in this state. [Kcpealed 1874; Code Amdts. 1873-74, p. 182. j Legislation § 31. 1. Enacted March 21, 1872. 2. Kcpealed by Code Amdts> 1873-74, p. 182. § 32. Custody of minors. The custodj' of minors and per- sons of unsound mind is regulated by part three of this division. Legislation § 32. Enacted March 21, 1872; based on Field's Draft, X. Y. Civ. Code, § 14. § 33. Delegation of powers. Minors. A minor cannot give a delegation of power, nor, under the age of eighteen, make a contract relating to real property, or any interest therein, or relating to any personal, property not in his immediate pos- session or control. [Amendment approved 1874 ; Code Amdts. 1873-74, p. 182.] Legislation § 33. 1. Enacted March 21, 1872 (based on Field's Draft, X. Y. Civ. Code, § 15), and then read: "A minor cannot give a delega- tion of power." 2. Amended by Code Amdts. 1873-74, p. 182. § 34, Contracts by minors. A minor may make any other contract tlian as above specified, 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 marriage, and on master and servant. [Amendment approved 1874; Code Amdts. 1873-74, p. 183.] Marriage: See post, §§ 56 et seq. Master and servant: See post, §§ 264 et seq. Legislation § 34. 1. Enacted March 21, 1872 (based on Field's Draft, X. Y. Civ. Code, §16; Magee v. Walsh, 18 Cal. 155), and then read: "A minor may make a conveyance or other contract in the same man- ner as any other pcr.son, subject only to his power of disaffirmance under the provisions of this title, and to the provisions of the title on marriage." 2. Amended by Code Amdts. 1873-74, p. 183. 3. Amendment by Stats. 1901, p. 333; unconstitutional. See note, § 4, ante. 17 PERSONS. 38 §35. When minor may disaffirm. In all cases other than those specified in sections thirty-six and thirty-seven, the con- tract of a minor, if made whilst he is under the age of eighteen, may be>~disaffirmed by the minor himself, either before his majority or within a reasonable time afterwards; or, in case of his death within that period, by his heirs or personal repre- sentatives; 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. [Amendment approved 1874; Code Amdts. 1873^74, p. 183.] Legislation § 35. 1. Enacted March 21, 1872 (based on Field's -yraft, N. Y. Civ. Code, § 17; Hastings v. Dollarhide, 24 Cal. 195), and then read: "In all eases other than those specified by sections 36 and 37, the contract of a minor may, upon restoring the consideration to the party from whom it was received, be disatSrmed by the minor himself, either before his majority or within a reasonable time afterwards, or, in case of his death within that period, by his heirs or personal rep- TGSGntcltlVGS. 2. Amended by Code Amdts. 1873-74, p. 183. §36. Minor cannot disaffirm contract for necessaries. A minor cannot disaffirm a contract, otherwise valid, to pay the reasonable value of things necessary for his support, or that of his family, entered into by him when not under the care of a parent or guardian able to provide for him or them. [Amendment approved 1874; Code Amdts. 18/3-74, p. 183.] Legislation § 36. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § IS), and then read: "A minor, or a person of unsound mind of whatever degree, cannot disaflSmi a contract, otherwise valid, to pay the reasonable value of things necessary for his support, or for that of his family, entered into by him when not under the care of a parent or guardian able to provide for him." 2. Amended by Code Amdts. 1873-74, p. 183. § 37. Minor cannot disaffirm certain obligations. A minor cannot disaffirm an obligation, otherwise valid, entered into by him under the express authority or direction of a statute. Legislation § 37. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 19. § 38. Contracts by persons without understanding. A per- son entirely without understanding has no power to make a contract of any kind, but he is liable for the reasonable value of things furnished to him necessary for his support or the support of his family. [Amendment approved 1874; Code Amdts. 1873-74, p. 183.] Contracts of insane persons: See post, §§ 1556, 1557. Legislation § 38. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, §20), and then read: "A person entirely without uu- Civ. Code — 2 § 42 civiii CODE. 18 (iorstaudiug has uo power to ooiitract, except in tlio case mentioned iu section 31), unless expressly authorized by statute." 2. Amended by Code Amdts. 1873-74, p. 183. § 39. Contracts by persons of unsound mind. A couvey- auce or otlier coutrad oL' a i)ersoii ol" unsound mind, but not entirely without iinderstandinij:, made before his incapacity has been judieially determined, is subject to rescission, as pro- vided in the chapter on rescission oi" this code. [Amendment • approved 1874; Code Amdts. lS73'-74, p. 184.] Rescission of contracts: See post, §§ 1G88-1691, 3406-3408. Legislation § 39. 1. Enacted March 21, 1872 (based on Field's Draft, X. Y. Civ. Code, § 21), and then read: "A person of unsound mind, but not entirely without understanding, may make a conveyance or other contract before his incapacity has been judicially determined, subject to rescission, as provided in the chapter on rescission." 2. Amended by Code Amdts. 1873-74, p. 184. § 40. Powers of persons whose incapacity has been ad- judged. After liis incai)acily has been judicially determined, a person of unsound mind can make no conveyance or other contract, nor delegate any power or waive any right, until his restoration to capacity. But a certificate from the medical superintendent or resident physician of the insane asylum to which such person may 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 discharge. [Amendment approved 1878; Code Amdts. 1877-78, p. 75.] Legislation § 40. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 22), and then read: "After his incapacity has been judicially determined, a person of unsound mind can make no convey- ance or other contract, nor delegate any power, nor waive any right, until his restoration to capacity is judicially determined. But if actu- ally restored to capacity, he may make a will, though his restoration is not thus determined." 2. Amended by Code Amdts. 1877-78, p. 75. 3. Amendment by Stats. 1901, p. 333; unconstitutional. See note, § 4, ante. § 41. Minors liable for wrongs, but not liable for exemplary damages. A uiinoi-. or person of unsound )iiiiid, of whatever degree, is civilly liable for a wrong done by him, but is not Liable in exemplary damages unless at the time of the act he was capable of knowing that it was wrongful. Legislation § 41. Enacted March 21, 1872; based on l<"ield's Draft, N. Y. Civ. Code, § 23. § 42. Minors may enforce their rights. A minor may en- force his riglits Ijy '-ivil action, or other legal proceedings, in the same manner as a person of full age, except that a guard- ian must conduct the same. Legislation § 42. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 25. 19 PERSONAL RIGHTS. § 46 PART II. PERSONAL RIGHTS. § 43. General personal rights. § 44. Defamation, what. § 45. Libel, what. § 46. Slander, what. § 47. Privileged publication is what. § 48. Malice not inferred. § 49. Personal relations forbid abduction and seduction, and injury to - servant. § 50. Eight to use force. § 51. Personal rights, all persons have equal. § 52. Violation of personal rights. Damages. § 53, Admittance to places of amusement, etc., on presentation of ticket, or price of ticket. Exceptions. § 54. Violation of right of admission to places of amusement. Damages. § 43. General personal rights. Besides the personal rights mentioned or recognized in the Political Code, every person has, subject to the qualifications and restrictions provided by law, the right of protection from bodily restraint or harm, from personal insult, from defamation, and from injury to his personal relations. Political rights and duties: See Pol. Code, §§ 50-60. Legislation § 43. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 27. § 44. Defamation, what. Defamation is affected [effected] by: 1. Libel; 2. Slander. Legislation § 44, Enacted March 21, 1872; based on Field's Diaft, N. Y. Civ. Code, § 28. § 45. Libel, what. Libel is a false and unprivileged publi- cation by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation. Pleading libel: See Code Civ. Proc, §§ 460, 461. Privileged publication: See post, §§ 47, 48. Legislation § 45. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 29. §46. Slander, what. Slander is a false and unprivileged publication other than libel, which: 1. Charges any person with crime, or with having been in- dicted, convicted, or punished for crime; § 47 CIVIL CODE. 20 2. linputfs ill liiiii tile piTsciit cxislciico of an iiifootious, coutaiiious. or loatlisoiiK^ diseasi'; ."k TtMuls (liroi'tly to injure liini in i-cspcct to liis office, pro- tVssion. tradi'. or hiisinoss, either ])y impiitiny: to liim sc»ci'al (lisipialilieatioii in lliosc vcspects Avliich the offiee or otlier occu- pation peculiarly requires, or by imputing: something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits; 4. Imputes to him impotence or a Avant of chastity; or, 5. Which, by natural consequence, causes actual damaj^e. Legislation § 46, Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 30. § 47. Privileged publication is what. A privileged publica- tion is one made — 1. In the proper discharge of an official duty. 2. In any legislative or judicial proceeding, or in any other official proceeding authorized by law. 3. In a communication, without malice, to a person inter- ested therein, by one Avho is also interested, or by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communi- cation iiHiocent. or who is requested by the person interested to give the information. 4. By a fair and true report, Avithout malice, in a public journal, of a judicial, legislative, or other public official pro- ceeding, or of anything said in the course thereof, or of a verified chai"ge or complaint made by any person to a public official, upon which complaint a warrant shall have been issued. 5. By a fair and true report, without malice, of the pro- 'oedings of a public meeting,- if such meeting was lawfully convened for a lawful purpose and open to the public, or the publication of the matter complained of was for the public benefit. [Amendment approved 1895; Stats. 1895, p. 167.] Legislation § 47. 1. Enacted March 21, 1872 (based on Field's Draft, X. Y. Civ. Code, § 31), and then read: "A privileged publication is one made: 1. In the proper discharge of an official duty; 2. In testifying as a witness in any proceeding authorized by law to a matter pertinent and material, or in reply to a question allowed by the tribunal. 3. In a communication, without malice, to a person interested therein, by one who was also interested, or who stood in such a relation to the former as to afford a reasonable ground for supposing his motive inno- cent, or who was requested by him to give the information; 4. By a fair and true report in a newspaper, without malice, of a judicial, legis- lative, or other public official proceeding, or of anything said in the course thereof." 2. Amended by Code Amdts. 1873-74, p. 184, to read as at present, except that (1) it did not contain subd. o, and (2) subd. 4, read: "By a 51. Persona! Rights; All Persons Have Equal. All citizens within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of inns, restaurants, hotels, eating houses, barber shops, bath houses, theaters!, skating rinks, [public conveyances], and all other places of public accommodation or amusement, subject only to the conditions and limitations established by law, and applicable alike to all citizens. (In effect 90 days from and after April 22, 1919. Stats. 1919, Chap. 210.) Civil Code, 1919. 21 PERSONAL RIGHTS. § 51 fair and true report, without malice, of a .iudieial, legislative, or other public official proeeediug, or of anything said in the course thereof." 3. Amended by Stats. 1895, p. 167, (1) adding subd. 5, and (2) chan- ging subd. 4 to read as at present. 4. Amendment by Stats. 1901, p. 334; unconstitutional. See note, § 4, ante. § 48. Malice not inferred. In the cases provided for in subdivisions three, four, and five, of the preceding section, malice is not inferred from the communication or publication. [Amendment approved 1895; Stats. 1895, p. 167.] Legislation § 48. 1. Enacted March 21, 1872, 2. Amended by Stats. 1895, p. 167, changing "3 and 4" to "three, four, and five." §49. Personal relations forbid abduction and seduction, and injury to servant. The rights of personal relations forbid : 1. The abduction of a husband from his wife, or of a parent from his child. 2. The abduction or enticement of a wife from her husband, or a child from a parent, or from a guardian entitled to its custody. 3. The seduction of a wife, daughter, orphan sister, or servant. 4. Any injury to a servant which affects his ability to serve his master. [Amendment approved 1905; Stats. 1905, p. 68.] Action for seduction: See Code Civ. Proc, §§ 374, 375. Legislation § 49. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 32. 2. Amendment by Stats. 1901, p. 334; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1905, p. 68, in subd. 2, (1) changing "of" to "or" before "a child," and (2) omitting "or of a servant from his master" at end of subdivision. § 50. Right to use force. Any necessary force may be used to protect from wrongful injury the person or property of oneself, or of a wife, husband, child, parent, or other relative, or member of one's family, or of a ward, servant, master, or guest. [Amendment approved 1874; Code Amdts. 1873-74, p. 184.] Lawful resistance to commission of offenses: See Pen. Code, §§ 692- 694. Legislation § 50. 1. Enacted March 21, 1872 (based on Field's Draft. N. Y. Civ. Code, §33), and then read: "Any necessary force may be used to protect from wrongful injury the person or property of one- self, or of a wife, husband, child, parent, or other relative to the third degree, a ward, servant, or master." 2. Amended by Code Amdts. 1873-74, p. 184. § 51. Personal rights, all persons have equal. All citizens within the jurisdiction of this t,tate are entitled to the full § 53 CIVIL CODE. 22 Mild i'(|ual iit'coiiuiKxIntioiis. iidvanta^os, I'acilitios, and privi- loiios of inns, i-i'staui-aiits, liotcls. eatinu-houses, barber-sliops, liath-hoiisos, tlu>ators, skatiim-rinks, and all other places of public acooniniodation or amusoniont, subject only to the con- ditions and limitations ostablisliod by law and applicable alike to all citizens. Legislation § 51. 1. Addition by Stats. 1901, p. 334; unconstitutional. See note. § -1. ante. 2. Added by Stats. 1905, p. 553. See post, Legislation § 52, for code commissioner's note. § 52. Violation of personal rights. Damages. Whoever violates any oi" the provisions of the last preceding,' section, by denying to any citizen, except for reasons applicable alike to every race or color, the full accommodations, advantages, facilities, and privileges in said section enumerated, or by aid- ing or inciting such denial, or whoever makes any discrimina- tion, distinction, or restriction on account of color or race, or except for good cause, applicable alike to all citizens of every color or race whatever, in respect to the admission of any citizen to. or his treatment in, any inn, hotel, restaurant, eating-house. ])arber-shop, bath-house, theater, skating-rink, or other public place of amusement or accommodation, whether such place is licensed or not, or whoever aids or incites such discrimination, distinction, or restriction, for each and every such offense is liable in damages in an amount not less than fifty dollars, which may be recovered in an action at law broutrht for that purpose. Legislation § 52. 1. Addition by Stats. 1901, p. 334; unconstitutional. See note. § 4, ante. 2. Added by Stats. 1905, p. 553; the code commissioner saying in his note to §§ 51, 52, "The statute of 1897, p. 137, relating to the rights of persons, is codified in the two sections above named." § 53. Admittance to places of amusement, etc., on presenta- tion of ticket, or price of ticket. Exceptions. It is unlawful for any coipoiation. person, or association, or the proprietor, lessee, or the agents of either, of any opera-house, theater, melodeon, museum, circus, caravan, race-course, fair, or other place of public amusement or entertainment, to refuse admit- tance to any person over the age of twenty-one years, who presents a ticket of admission acquired by purchase, or who tenders the price thereof for such ticket, and who demands admission to such place. Any person under the influence of liquor, or who is guilty of boisterous conduct, or any person of lewd or immoral character, may be excluded from any such place of amusement. Legislation § 53. 1. .Addition by Stats. 1901, p. 335; unconstitutional. See note, § 4, ante. 512. Violation of Personal Rights; Damages. Whoever [denies to any citizen,] except for reasons applicable alike to every race or color, the full accommodations, advantages, facilities, and privileges I enumerated in section fifty-one of this code, or who aids, or incites,] such denial, or whoever makes any discrim- ination, distinction or restriction on account of color or race, or except for good cause, applicable alike [to citizens] of every color or race [whatsoever], in respect to the admission of any citizen to, or his treatment in, any inn, hotel, restaurant, eat- ing house, barber shop, bath house, theater, skating rink, (public conveyance,] or other public place of amusement or ac- cominodatiim, whether such place is licensed or not, or whoever aids or incites such discrimination, distinction or restriction, for each and every such offense is liable in damages in an amount not less than [one hundred] dollars, which may be recovered in an action at law l)rou«lit lor that purpose. (In effect 90 days from and after April 22, llUii. Statsi. 1919, Cliap. 210.) Civil Code, 1919. 23 PERSONAL. RIGHTS. § 54 2. Added by Stats. 1905, p. 554. See post, Legislation, § 54, for code commissioner's note. § 54. Violation of right of admission to places of amuse- ment. Damages. Any person who is refused admission to any place of amusement contrary to the provisions of the last preceding section, is entitled to recover from the proprietor, lessee, or their agents, or from any such person, corporation, or association, or the directors thereof, his actual damages, and one hundred dollars in addition thereto. Legislation § 54. 1. Addition by Stats. 1901, p. 335; unconstitutional. See note, § 4, ante. 2. Added by Stats. 1905, p. 554; the code commissioner saying in his note to §§ 53, 54, "The statute of 1893, p. 220, relating to the rights of persons, is codified in the sections above named." § 55 CIVIL CODE. 24 PAET III. PERSONAL RELATIONS. Title I. Marriage. §§55-181. II. Parent AND Child. §§193-230. III. Guardian and Ward. §§ 236-258. IV. Master and Apprentice. §§ 264-276. TITLE I. Marriage. Chapter I., The Contract of Marriage. Articles I-III. §§ 55-80. II. Divorce. Articles I-IV. §§ S2-14S. III. Husband and Wife. §§ 155-181. CHAPTER I. The Contract of Marriage. Article I. Validity of Marriage. §§ 55-03. II. Authentication of Marriage. §§ 68-79a. III. Judicial Determination of Void Marriages. § 80. AETICLE I. Validity of Marriage. § 55. What constitutes marriage. § 56. Minors capable of contracting marriage. § 57. Marriage. How proved. § 58. Certain marriages voidable. [Repealed.] § 59. Incompetency of parties to marriage. § 60. Marriages. Illegal. § 61. Subsequent marriage. When illegal and void. § 62. Released from marriage contracts when. § 63. Marriages contracted without the state. § 55. What constitutes marriage. Marriage is a personal relation arising ont of a civil contract, to which the consent of parties capable of making that contract is necessary. Con- sent alone will not constitute marriage; it must be followed by a solemnization authorized by this code. [Amendment ap- proved 1895; Stats. 1895, p. m.] Necessity of solemnization: Post, § 68. Legislation § 55. 1. Enacted March 21, 1872; based on Stats. 1850, p. 424, § 1. 2. Amended by Stats. 1895, p. 121, changing the final words, "'author- ized by this code," from "or by a mutual assumption of marital rights, duties, or obligations." 56. Minors Capable of Contracting iVIarriage. Any unmar- ried male of the age of [twenty-one] years or upwards and any unmarried female of the age of [eighteen] years or upwards and not othei-wise disqualified, is capable of consenting to and con- summating marriage[; provided, that any male under the age of twenty-one years and over the age of eighteen years and any female under the age of eighteen years and over the age of sixteen years, with the consent in writing of the parents of the person under age, or one of such parents, or of his or her guard- ian, where such written consent is filed by the clerk issuing the marriage license, as provided In section sixty-nine of the Civil Code, is capable of consenting to and consummating marriage J (In effect 90 days from and after April 29, 1921 Stats 1921 ^^^^- 233.) Civ. Code', 192i: 25 VALIDITY OF MARRIAGE. § 60 § 56. Minors capable of contracting marriage. Adj im- married male of the age of eighteen years or upwards, and any unmarried female of the age of fifteen years or upwards, and not otherwise disqualified, are capable of eousenting to and consummating marriage. Legislation § 56. Enacted March 21, 1872, based on Field's Draft, N. Y. Civ. Code, § 36; Cooley Bl. Conim., I, 43.5. § 57. Marriage. How proved. Consent to marriage and solemnization thereof may be proved under the same general rules of evidence as facts are proved in other cases. [Amend- ment approved 1895; Stats. 1895. p. 121.] Legislation § 57. 1. Enacted March 21, 1872, and then read, "Con- sent to and subsequent consummation of marriage may be manifested in any form, and may be proved under the same general rules of evi- dence as facts in other cases"; the code commissioners saying, "Sec. 35, New York Civil Code, is as follows: 'Consent to a marriage may be manifested in any form, and may be proved like any other fact.' " 2. Amended by Stats. 1895, p.' 121. § 58. Certain marriages voidable. [Repealed 1905 ; Stats. 1905, p. 554.] Penalty for false personation in marital relations: Pen. Code, § 528. Grounds for annulment: See post, § 82, subd. 4. Legislation § 58. 1. Enacted March 21, 1872. 2. Amended by Code Amdts. 1873-74, p. 185. 3. Eepeal by Stats. 1901, p. 335; unconstitutional. See note, § 4, ante. 4. Repealed by Stats. 1905, p. 554; the code commissioner saying, "The provisions of this section are contained in the present § 82. The section is therefore unnecessary." § 59. Incompetency of parties to marriage. Marriages be- tween 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 begin- ning, whether the relationship is legitimate or illegitimate. Penalty for incestuous marriages: Pen. Code, §§ 285, 359. Legislation § 59. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 38; Stats. 1850, p. 424, § 2. § 60. Marriages. Illegal. All marriages of white persons with negroes, Mongolians, or mulattoes are illegal and void. [Amendment approved 1905; Stats. 1905, p. 554.] Marriages between whites and negroes, mulattoes or Mongolians: See post, § 69. Legislation § 60. 1. Enacted March 21, 1872; based on Stats. 1850, p. 424, § 3. 2. Amendment by Stats. 1901, p. 335; unconstitutional. See note, § 4, ante. 3. Amcnfled by Stats. 1905, p. 554, inserting "Mongolians"; the code commissioner saying, "The change consists in the insertion of the word 'Mongolians' after the word 'negroes.' " § 62 CIVIL CODE. 26 § 61. Subsequent marriage. When illegal and void. A subsequent marriage contracted by any person during the life of a former husband or wife of such person, with any person other than such former husband or wife, is illegal and void from the beginning, unless : 1. The former marriage has been annulled or dissolved. In no case can a marriage of either of the parties during the life of the other, be valid in this state, if contracted within one year after the entry of an interlocutory decree in a proceeding for divorce. 2. Unless such former husband or wife is absent, and not known to such person to be living for the space of five sue cessive years immediately preceding such subsequent marriage, or is generally reputed or believed by such person to be dead at the time such subsequent marriage was contracted. In either of which cases the subsequent marriage is valid until its nullity is adjudged by a competent tribunal. [Amendment approved 1&03 ; Stats. 1903, p. 176.] Penalty for bigamy: Pen. Code, §§ 283, 284. Exceptions; Pen. Code, § 282. Interlocutory decrees: See post, §§ 131, 132. Former husband or wife living: See post, § 82. Legislation § 61. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 40), and then read: "A subsequent marriage con- tracted by any person during the life of a former husband or wife of such person, with any person other than such former husband or wife, is illegal and void from the beginning, unless: 1. The former marriage had been annulled or dissolved; or, 2. Unless such former husband or wife was absent, and not known to such person to be living, for the space of five successive years immediately preceding such subsequent marriage; in which case the subsequent marriage is void only from the time its nullity is adjudged by a competent tribunal." 2. Amended by Code Amdts. 1873-74, p. 185, in subd. 2, (1) inserting "or was generally reputed and was believed by such person to be dead at the time such subsequent marriage was contracted," and (2) sub- stituting "in either of which cases the subsequent marriage is valid until" for "in which case the subsequent marriage is void only from the time." 3. Amended by Stats. 1897, p. 34, (1) in subd. 1, adding "provided, that in case it be dissolved, the decree of divorce must have been ren- dered and made at least one year prior to such subsequent marriage," and (2) in subd. 2, changing "and was believed" to "or believed" after "generally reputed." 4. Amendment by Stats. 1901, p. 335; unconstitutional. See note, § 4, ante. 5. Amended by Stats. 1903, p. 176. § 62. Released from marriage contracts when. Neither party to a contract to marry is bound by a promise made in ignorance of the other's want of personal chastity, and either is released therefrom by unchaste conduct on the part of the 27 AUTHENTICATION OF MARRIAGE. § 69 other, unless both parties participate therein. [Amendment approved 1874; Code Amdts. 1873-74, p. 185.] Legislation § 62. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 44. 2. Amended by Code Amdts. 1873-74, p. 185, adding, at end of sec- tion, the words "unless both parties participate therein." § 63. Marriages contracted without the state. All mar- riages contracted without this state, which would be valid by the laws of the country in which the same were contracted, are valid in this state. Legislation § 63. Enacted March 21, 1872; based on Stats. 1850, p. 424, § 5. AETICLE II. Authentication of Marriage. § 68. Marriages. Procedure required. § 69. Marriage licenses. § 69a. Certificate of registry of marriage. § 70. Marriages, by whom may be solemnized. § 71. No particular form of solemnization. § 72. Requirements by persons solemnizing marriage. § 73. Certificates of marriage. § 74. Certificate to parties and recorder. § 75. Declaration of marriage, how made. [Repealed.] - § 76. Declaration where there is no record. § 77. To be acknowledged and recorded. § 78. Either party may proceed to test validity of marriage. § 79. Marriage without license. § 79a. Provisions of this chapter not applicable to members of particular religious denomination. § 68. Marriages. Procedure required. Marriage must be licensed, solemnized, authenticated, and recorded as provided in this article; but non-compliance with its provisions by others than a party to a marriage does not invalidate it. [Amend- ment approved 1905; Stats. 1905, p. 554.] Necessity of solemnization: See ante, § 55. Form of solemnization: See post, § 71. License, necessity of: See post, §§ 69, 72, 79, 79a. Legislation § 68. 1. Enacted March 21, 1872. 2. Amended by Stats. 1895, p. 121, (1) inserting "by other than the parties to a marriage," and (2) changing "any lawful marriage" to "that marriage." 3. Amendment by Stats. 1901, p. 336; unconstitutional. See note, § 4, ante. 4. Amended by Stats. 1905, p. 554, changing (1) "other than the par- ties" to "others than a party," and (2) "that marriage" to "it"; the code commissioner saying in his note, after noting the changes, "The meaning of the section is unchanged." § 69. Marriage licenses. All persons about to be joined in marriage must first obtain a license therefor, from the county § 69 CIVIL CODE. 28 clerk of the county in Avhicli the marriage is to be celebrated, which license must show: 1. The identity of the parties. 2. Their real and full names, and places of residence. 3. Their ages; and 4. Whether white, Mongolian, negro or mulatto. No license must be granted when either of the parties, appli- cants therefor, is an imbecile, or insane, or who at the time of making the application, or proofs herein required, for said license, is under the influence of any intoxicating liquor, or narcotic drug ; no license must be issued authorizing the mar- riage of a white person with a negro, mulatto, or Mongolian . If the male is under the age of tAventy-one years, or the female is under the age of eighteen years, and such person has not been previously married, no license must be issued by the county clerk unless the consent in writing of the parents of the person under age, or one of such parents, or of his or her guardian, is presented to him, duly verified by such parents, or parent, or guardian; and such consent must be filed by the clerk, and he must state such facts in the license. For the purpose of ascertaining all the facts mentioned or required in this section, the clerk, at the time the license is applied for, may, if he deems it necessary in order to satisfy himself as to matters in this section enumerated, examine the male appli- cant for a license on oath, which examination shall be reduced to writing by the clerk, and subscribed by him. [Amendment approved 1907; Stats. 1907, p. 305.] License, necessity of: See ante, § 68; post, §§ 72, 79, 79a. Marriages between whites and mulattoes, negroes or Mongolians: .See ante, § 60. Legislation § 69. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 47; Stats. 1850, p. 424, § 7), and then read: "All per- sons about to be joined in marriage must first obtain a license therefor from the clerk of the county court of the county in which the marriage is to be celebrated, showing: 1. The identity of the parties; 2. Their real and full names and places of residence; 3. That they are of suffi- cient age to be capable of contracting marriage; 4. If the male is under the age of twenty-one, or the female under the age of eighteen years, the consent of the father, mother, or guardian, if any such, is given; or that such nonaged person has been previously, but is not at the time, married. For the purpose of ascertaining these facts, the clerk is authorized to examine parties and witnesses on oath, and receive and read affidavits. He must state such facts in the license." 2. Amended by Code Amdts. 1873-74, p. 186, changing subds. 3 and ^ 4 to read: "Three. Their ages. Four. If the male be under the age of twenty-one, or the female under the age of eighteen years, the con- sent of the father, mother, or guardian, or of one having the charge of such person, if any such be given; or that such nonaged person has been previously, but is not at the time, married. For the purpose of ascertaining these facts, the clerk is authorized to examine parties 29 AUTHENTICATION OP MARRIAGE. § 69a and witnesses on oath, and to receive affidavits, and he must state such facts in the license. If the male be under the age of twenty-one years, or the female be under the age of eighteen, and such person has not been previously married, no license shall be issued by the clerk, unless the consent in writing of the parents of the person under age, or of one of such parents, or of his or her guardian, or of one having charge of such person, be presented to him; and such consent shall be filed by the clerk." 3. Amended by Code Amdts. 1880, p. 3, to read: "All persons about to be joined in marriage must first obtain a license therefor from the county clerk of the county in which the marriage is to be celebrated, showing: One. The identity of the parties. Two. Their real and full names, and places of residence. Three. Their ages. Four. If the male be under the age of twenty-one, or the female under the age of eighteen years, the consent of the father, mother, or guardian, or of one having the charge of such person, if any such be given; or that such nonaged person has been previously, but is not at the time, married. For the purpose of ascertaining these facts, the clerk is authorized to examine parties and witnesses on oath, and to receive afiidavits, and he must state such facts in the license. If the male be under the age of twenty- one years, or the female be vmder the age of eighteen, and such person has not been previously married, no license shall be issued by the clerk, unless the consent, in writing, of the parents of the person under age, or of one of such parents, or of his or her guardian, or of one having charge of such person, be presented to him; and such consent shall be filed by the clerk; provided, that the said clerk shall not issue a license authorizing the marriage of a white person with a negro, mulatto, or Mongolian." 4. Amendment by Stats. 1901, p. 336; unconstitutional. See note, § 4, ante. 5. Amended by Stats. 1905, p. 182, to read: "All persons about to be joined in marriage must first obtain a license therefor from the county clerk of the county in which the marriage is to be celebrated, and must upon oath qualify and show as follows: 1. The identity of the parties; 2. Their real and full names and places of residence; 3. Their ages; 4. No license must be granted when either of the parties applicants therefor is an imbecile or insane, or who at the time of making appli- cation for said license is under the influence of any intoxicating liquor, or narcotic drug; 5. No license must be issued authorizing the marriage of a white person with a negro, mulatto, or Mongolian; 6. If the male is under the age of twenty-one, or the female under the age of eighteen years, the consent of the father, mother or guardian, if such consent is given; or that such nonaged person has been previously, but is not at the time married. If the male is under the age of twenty-one, or the' female under the age of eighteen years, and such person has not been previously married, no license must be issued by the clerk, unless the consent in writing of the parents of the person under age, or one of such parents, or of his or her guardian is presented to him duly veri- fied by such parents or parent or guardian; and such consent must be filed by the clerk and he must state such facts in the license. For the purpose of ascertaining all the facts mentioned and required in this section, the clerk must at the time the license is applied for examine the parties to whom the license is to be issued under oath and reduce such examination to writing to be by them subscribed." 6. Amended by Stats. 1907, p. 305. § 69a. Certificate of registry of marriage. All persons about to be joined in marriage must obtain from the county § 72 CIVIL CODE. 30 clerk of the county in which the marriage is to be celebrated, in addition to the license therefor provided for in section sixty- nine of the Civil Code, a certificate of registry as provided in section three thousand and seventy-six of the Political Code which shall contain among other matters as near as can be ascertained, the race, color, age, name and surname, birth- place, residence of the parties to be married, number of mar- riage and condition of each, whether single, widowed, or divorced, the occupation of the parties, maiden name of the female, if previously married, the names and birthplaces of the parents of each, and the maiden name of the mother of each, which said certificate of registry shall be filled out as herein provided in the presence of the county clerk issuing the marriage license and shall then be presented to the person performing the ceremony and shall be filed by him with the county recorder within three days after the ceremony. Legislation § 69a. Added by Stats. 1909, p. 1093. §70. Marriages, by whom may be solemnized. Marriage may be solemnized by either a justice of the supreme court, justice of the district courts of appeal, judge of the superior court, justice of the peace, judge of any police court, city recorder, priest or minister of the gospel of any denomination. [Amendment approved 1907; Stats. 1907. p. 80.] Form of marriage ceremony: See Const. 1879, art. xx, § 7; see also Const. 1863, art. xi, § 12. Penalty for solemnization of illegal marriage: Pen. Code, § 359. Legislation § 70. 1. Enacted March 21, 1872 (based on Field's Draft, K Y. Civ. Code, §45; Stats. 1850, p. 424, § 7), and then read: "Mar- riage may be solemnized by either a justice of the supreme court, dis- trict or county judge, justice of the peace, mayor, priest, or minister of the gospel of any denomination." 2. Amended by Code Amdts. 1880, p. 4, to read: "Marriage may be solemnized by either a justice of the supreme court, judge of the su- perior court, justice of the peace, priest, or minister of the gospel of any denomination." 3. Amendment by Stats. 1901, p. 336; unconstitutional. See note, § 4, ante. 4. Amended by Stats. 1903, p. 255, inserting "judge of any police court, city recorder." 5. Amended by Stats. 1907, p. 80. § 71. No particular form of solemnization. No particular form for the ceremony of marriage is required, but the par- ties must declare, in the presence of the person solemnizing the marriage, that they take each other as husband and wife. Legislation § 71. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 46. § 72. Requirements by persons solemnizing marriage. The person solemnizing a marriage must first require the presen- 73. Certificates of Marriage. The person solemnizing a mar- riage must make, sign and endorse upon or attacli to ttie license a certificate showing: 1. The fact, time and place of solemnization; and 2. The names and places of residence of one or more witnesses to the ceremony. [3, A statement of the official position of the person solemniz- ing the marriage, or of the denomination of which said person Is a priest or minister.] (In effect 90 days from and after April 22, 1919. Stats. 1919, Chap. 111.) Civil Code, 1919. 31 AUTHENTICATION OF MARRIAGE. § 75 tation of the marriage license; and if he has any reason to doubt the correctness of its statement of facts, he must first satisfy himself of its correctness, and for that purpose he may administer oaths and examine the parties and witnesses in like manner as the county clerk does before issuing the license. [Amendment approved 1874; Code Amdts. 1873^74, p. 186.] License, necessity of: See ante, §§ 68, 69; post, §§ 79, 79a. Legislation § 72. 1, Enacted Marcli 21, 1872 (based on Stats. 1850, p. 424, §§7, 8), and then read: "The person solemnizing a marriage must first require the presentation of the marriage license, and satisfy himself that it substantially conforms to section 69, and that the facts set forth in it are true. For this purpose he may rely upon the license or may administer oaths and examine the parties and witnesses in like manner as the county clerk does before issuing the license." The code commissioners say: "Sec. 47, N. Y. Civ. Code, changed to conform to our license system. It is also intended to give authority to revise the license of the clerk in cases where there are suspicions of fraud." 2. Amended by Code Amdts. 1873-74, p. 186. § 73. Certificates of marriage. The person solemnizing a marriage niust make, sign, and indorse upon, or attach to, the license, a certificate, showing: One. The fact, time, and place of solemnization ; and, Two. The names and places of residence of one or more witnesses to the ceremony. [Amendment approved 1874; Code Amdts. 1873-74, p. 187.] Penalty for false return: Pen. Code, § 360. Legislation § 73. 1. Enacted March 21, 1872 (based on Stats. 1850, p. 425, § 8), the introductory paragraph reading as at present, the rest of the section reading, "1. That he believes the facts stated to be true, and that upon due inquiry there appears to be no legal impediment to the marriage; 2. The names and places of residence of one or more witnesses to the ceremony; 3. The fact, time, and place of solemniza- tion." 2, Amended by Code Amdts. 1873-74, p. 187. § 74. Certificate to parties and recorder. He must, at the request of, and for either party, make a certified copy of the license and certificate, and file the originals with the county recorder within thirty days after the marriage. Recorder must record: Pol. Code, § 4131. Filing certificate: See post, § 79. Delivery of copy of certificate of marriage to parties: See post, § 79. Legislation § 74. 1. Enacted March 21, 1872; based on Stats. 1850, p. 425, § 8. 2. Amendment by Stats. 1901, p. 336; unconstitutional. See note, § 4, ante. § 75. Declaration of marriage, how made. [Repealed 1895 ; Stats. 1895, p. 121.] Legislation § 75. 1. Enacted March 21, 1872. 2. Eepealed by Stats. 1895, p. 121. § 79a CIVIL CODE. 32 § 76. Declaration where there is no record. If no record of the solemnization of a marriage heretofore contracted, be known to exist, the parties may join in a written declaration of snch marriage, substantially showing : One. The names, ages, and residences of the parties. Two. The fact of marriage. Three. That no record of such marriage is known to exist. Such declaration must be subscribed by the parties and at- tested by at least three witnesses. [Amendment approved 1874; Code Amdts. 1873-74, p. 187.] Recording: Post, § 79a. Declaration of marriage: See post, § 79a. Legislation § 76. 1. Enacted March 21, 1872, and then read: "If no record of the solemnization of a marriage is known to exist, the par- ties may join in a declaration of such marriage, substantially showing: 1. The names, age, and residence of the parties; 2. The fact of mar- riage; 3. That no record of such marriage is known to exist." 2. Amended by Code Amdts. 1873-74, p. 187. § 77. To be acknov^^ledg'ed and recorded. Declarations of marriage must be acknowledged and recorded in like manner as grants of real propertj". Recording: See Pol. Code, § 4131. Legislation § 77. Enacted March 21, 1872, § 78. Either party may proceed to test validity of marriage. Tf 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 inarriage determined and declared. [Amendment approved 1883 ; Stats. 1883, p. 3.] Legislation § 78. 1. Enacted March 21, 1872. 2. Amended by Stats. 1883, p. 3, substituting "superior" for "dis- trict" before "court." § 79. Marriag-e w^ithout license. When unmarried persons, not minors, have been living together as man and wife, they may, without a license, be married by any clergyman. A cer- tificate of such marriage must, by the clergyman, be made and delivered to the parties, and recorded upon the records of the church of which the clergyman is a representative. No other record need be made. License, necessity of: See ante, §§ 6S, 69, 72; post. § 79a. Filing certificate: See ante, § 74. Delivery of copy of license and certificate to parties: See ante, § 74. Legislation § 79. Added by Code Amdts. 1877-78, p. 75. § 79a. Provisions of this chapter not applicable to members of particular religious denomination. Tlie provisions of this chapter, so far as they relate to the solemnizing of marriages. 63 JUDICIAL DETERMINATION OF VOID MARRIAGES. § 80 are not applicable to members of any particular religious denomination having, as such, any peculiar mode of entering the marriage relation; but such marriages must be declared, as provided in section seventy-six, and be acknowledged and recorded, as provided in section seventy-seven. Where a mar- riage is declared as provided in said section seventy-six, the husband must file said declaration with the county recorder within thirty days after such marriage, and upon receiving the same the county recorder must record the same ; and if the, husband fails to make such declaration and file the same for record, as herein provided, he is liable to the same penalties as any person authorized to solemnize marriages, who fails to make the return of such solemnization as provided by law. [Amended 1905; Stats. 1905, p. 555.] License, necessity of: See ante, §§ 68, 69, 72, 79. Legislation § 79a. 1. Added by Stats. 1897, p. 186, as § 79%, and then read: "The provisions of this chapter, so far as they relate to procuring licenses and the solemnizing of marriages, are not applicable to members of any particular religious denomination having, as such, any peculiar mode of entering the marriage relation; but such mar- riages shall be declared, as provided in section seventy-six of the Civil Code of this state, and shall be acknowledged and recorded, as provided in section seventy-seven of said Civil Code. Where a marriage is de- clared as is provided in said section seventy-six, the husband shall file said declaration with the county recorder within thirty days after said marriage, and upon receiving the same the county recorder shall record the same; and if the husband fail to make such declaration and file the same for record, as herein provided, he shall be liable to the same penalties as any person authorized to solemnize marriages, and who fails to make the return of such solemnization as provided by law." 2. Amendment by Stats. 1901, p. 336, and renumbering the section 79a; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1905, p. 555; the code commissioner saying, "The change consists in the omission of the words 'procuring a license and' after 'to,' thus requiring a license in every case, but leaving the mode of celebrating the marriage as at present. The section is renum bered 79a." AETICLE III. Judicial Determination of Void Marriages. § 80. Void marriages. § 80. Void marriages. Either party to an incestuous or void marriage may proceed, by action in the superior court, to have the same so declared. [Amendment approved 1880, Code Amdts. 1880, p. 4.] Legislation § 80. 1. Added by Code Amdts. 1875-76, p. 69. 2. Amended by Code Amdts. 1880, p. 4, substituting "superior" for "district." Civ. Code — 3 § 82 CIVIL CODE. 34 ♦l CHAPTER II. Divorce. Article I. Nullity. §§ 82-86. 11. Dissolution of Marriage. §§ 90-107. III. Causes for Denying Divorce. §§ 111-132. IV. General Provisions. §§ 136-148. AETICLE I. Nullity. § 82. Causes for annulling marriages. § 83. Actions therefor, when commenced. § 84. Children of annulled marriages. § 85. Custody of children. § 86. Effect of judgment of nullity. § 82. Causes for annulling- marriages. A marriage may be annulled for any of the followinp- causes, existing at the time of the marriage : One. That the party in whose behalf it is sought to have the marriage annulled "vvas under the age of legal consent, and such marriage was contracted without the consent of his or her parents or guardian, or person having charge of him or her; unless, after attaining the age of consent, such party for any time freely cohabited with the other as husband or wife. Two. That the former husl and or wife of either party was living, and the marriage with such former husband or wife was then in force. Three. That either party Avas of unsound mind, unless such party, after coming to reason, freely cohabit with the other as husband or wife. Four. That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband or wife. Five. That the consent of either party was obtained by force, unless such party afterwards freely cohabited with the other as husband or wife. Six. That either party was. at the time of marriage, physi- cally incapable of entering into the marriage state, and such incapacity continues, and appears to be incurable. [Amend- ment approved 1874; Code Amdts. 1873-74, p. 187.] Former husband or wife living: Ante, § 61. Legislation § 82. 1. Enacted March 21, 1872 (based on Field's Draft. N. Y. Civ. Code, §54; Stats. 1851, p. 186, § 4, subd. 2), and then read as at present, except subd. 1, which read: "1. That the party seeking to have the marriage annulled was under the age of legal consent; unless, after attaining the age of consent, such party for any time freely cohabited with the other as husbaud or wife." 2. Amended by Code Amdts. 1873-74, p. 187. 35 ANNULLING MARRLVGES. § 84 § 83. Actions therefor, when commenced. An action to ob- tain a decree of nullity of marriage, for causes mentioned in the preceding section, must be commenced witbin the periods and by the parties, as follows : One. For causes mentioned in subdivision one : by the party to the marriage who was married under the age of legal consent, within four years after arriving at the age of consent ; or by a parent, guardian, or other person having charge of such nonaged male or female, at any time before such married minor has arrived at the age of legal consent. Two. For causes mentioned in subdivision two: by either party during the life of the other, or by such former husband or wife. Three. For causes mentioned in subdivision three : by the party injured, or relative or guardian of the party of unsound mind, at any time before the death of either party. Four. For causes mentioned in subdivision four: by the party injured, within four years after the discovery of the facts constituting the fraud. Five. For causes mentioned in subdivision five : by the in- jured party, within four years after the marriage. Six. For causes mentioned in subdivision six : by the in- jured party, within four years after the marriage. [Amend- ment approved 1874; Code Amdts. 1873-74, p. 188.] Legislation § 83. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 55), subd. 1 then reading, "For causes mentioned in subdivision 1: by either party to the marriage, or by a guardian or relative, within four years after arriving at the age of consent." 2. Amended by Code Amdts. 1873-74, p. 188. § 84. Children of annulled marriages. A judgment of nullity of marriage does not affect the legitimacy of children begotten before the judgment. [Amendment approved 1905; Stats. 1905, p. 555.] Legitimate' children. Who are: See post, §§ 193-195. See, also, when the question arises in divorce eases for adultery, §§ 144, 145. Legitimacy of children of annulled marriage: See post, § 1384. Legislation § 84. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 56), and then read: "Where a marriage is annulled on the ground that a former husband or wife was living, or on the ground of insanity, children begotten before the judgment are legiti- mate, and succeed to the estate of both parents." 2. Amendment by Stats. 1901, p. 337; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1905, p. 555; the code commissioner saying, "The design of the amendment is to make the rule declared in this section applicable to all judgments adjudging marriage null, the present section applying only to cases where a marriage is annulled on the ground that a former husband or wife was living." § 91 CIVIL CODE. 36 § 85. Custody of children. The court must award the cus- tody 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. Legislation § 85. Enacted March 21, 1872; based on Field's Draft, N. •¥. Civ. Code, § 57. § 86. Effect of judgment of nullity. A judgment of nullity of marriage rendered is conclusive only as against the parties to the action and those claiming under them. Effect of decree for divorce: See post, § 91. Legislation § 86. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 58. ARTICLE II. Dissolution of Marriage. § 90. Marriage, how dissolved. § 91. Effect of divorce. § 92. Causes for divorce. § 93. Adultery defined. § 94. Extreme cruelty, what. § 95. Desertion, what. § 96. Desertion, how manifested. § 97. In case of stratagem or fraud, who commits desertion. • § 98. In ease of cruelty, where one party leaves the other, who commits desertion. § 99. Separation by consent not desertion. § 100. Absence becomes desertion, when. § 101. Consent to separate revocable. § 102. Desertion, how cured. Effect of refusing condonation. § 103. Wife must abide by husband's selection of home, or it is desertion on her part. § 104. If the place is unfit, and wife refuses to conform, it is desertion by the husband. § 105. Willful neglect, what. § 106. Habitual intemperance, what. § 107. Habitual intemperance, etc., for one year. § 90. Marriage, how dissolved. Marriage is dissolved only.-. One. By the death of one of the parties; or, Two. By the judgment of a court of competent jurisdiction decreeing a divorce of the parties. [Amendment approved 1874; Code Amdts. 1873-74, p. 189.] Legislation § 90. 1. Enacted March 21, 1872 (based on Field's Draft. N. Y. Civ. Code, §59), and then read: "Marriage may be dissolved: 1. By the death of either of the parties; or, 2. By a divorce adjudged by a court of competent jurisdiction." 2. Amended by Code Amdts. 1873-74, p. 189. § 91. Effect of divorce. The effect of a judgment decree- ing a divorce, is to restore the parties to the state of unmarried persons. [Amendment approved 1874; Code Amdts. 1873-71, p. 189.] 37 DISSOLUTION OF MARRIAGE. § 95 Legislation § 91. 1. Enacted March 21, 1872, and then read: "Divorce is a judgment dissolving the marriage and restoring the parties to the status of unmarried persons." 2, Amended by Code Amdts. 1873-74, p. 189. § 92. Causes for divorce. Divorces may be granted for any of the following causes : One. Adultery. Two. Extreme cruelty. Three. Willful desertion. Four. Willful neglect. Five. Habitual intemperance. Six. Conviction of felonv. [Amendment approved 1874; Code Amdts. 1873-74, p. 189' ] Alimony: See post, §§ 136 et seq. Community property, and its disposition under proceedings for di- vorce: See post, §§ 141 et seq. Desertion caused by cruelty: See post, § 98. Legislation § 92. 1. Enacted March 21, 1872; based on Stats. 1851, p. 186, § 4. 2. Amended by Code Amdts. 1873-74, p. 189, substituting "must" for "may" before "be granted." § 93. Adultery defined. Adultery is the voluntary sexual intercourse of a married person with a person other than the offender's husband or wife. Open and notorious adultery is punishable by act of May 15, 1872; See stats. 1871-72, p. 380. This act was codified in Pen. Code, §§ 269a, 269b. Legislation § 93. Enacted March 21, 1872; based on definition of "Adultery" in Bouvier's Law Dictionary. § 94. Extreme cruelty, what. Extreme cruelty is the wrongful infliction of grievous bodily injury, or grievous men- tal suffering, upon the other by one party to the marriage. [Amendment approved 1905; Stats. 1905, p. 75.] Legislation § 94. 1. Enacted March 21, 1872; based on Bishop on Marriage and Divorce, 4th ed., § 717; Stats. 1851, p. 186; Stats. 1869-70, p. 291; the code commissioners saying, "Statutes of 1851, p. 186, author- izes divorce for 'extreme cruelty'; of 1870, p. 291, for 'extreme cruelty by inflicting upon the other grievous bodily injury or mental suf- ering.' " 2. Amendment by Stats. 1901, p. 337; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1905, p. 75, inserting "wrongful" before "in- fliction." § 95. Desertion, what. Willful desertion is the voluntary separation of one of the married parties from the other with intent to desert. Legislation § 95. Enacted March 21, 1872; based on Bishop on Mar- riage and Divorce, I, § 776; Stats. 1851, p. 186; Stats. 1869-70, p. 291. ' § 100 CIVIL CODE. 38 §96. Desertion, how manifested. Persistent refusal to have reasonable matrimonial intercourse as husband and wife, when health or physical condition does not make such refusal reasonably necessary, or the refusal of either party to dwell in the same house with the other party, when there is no just cause for such refusal, is desertion. Legislation § 96. Enacted March 21, 1872; based on Bishop on Mar- riage and Divorce, 4th ed., § 777, and note; Morrison v. Morrison, 20 Cal. 231; the code commissioners saying, "Sub. 1 is intended to settle a question stated as doubtful in Bishop on Marriage and Divorce, 4th ed., 778-782. It reaches a class of cases not covered by the second subdivision. The term 'matrimonial intercourse' is used as a more agreeable expression than 'sexual intercourse,' both having the same legal significance, according to authorities cited in note 1, § 777, of the work above cited. Use of the word cohabited is avoided for its uncer- tainties: See same work." § 97. In case of stratagem or fraud, who commits desertion. When one party is induced, by the stratagem or fraud of the other party, to leave the 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 commit- ting the stratagem or fraud, and not by the other. Legislation § 97. Enacted March 21, 1872; based on Bishop on Mar- riage and Divorce, § 784. §98. In case of cruelty, where one party leaves the other, who commits desertion. Departure or absence of one party from the family dwelling-place, caused by cruelty or by threats of bodily harm from which danger would be reasonably apprehended from the other, is not desertion by the absent party, but it is desertion by the other party. Legislation § 98. Enacted March 21, 1872; the code commissioners saying, "This section is intended to settle a question discussed as doubt- ful in Bishop on Marriage and Divorce, §§ 7S7, 791, 794." § 99. Separation by consent not desertion. Separation by ^,onsent, with or without the understanding that one of the parties will apply for a divorce, is not desertion. Consent revocable: See post, § 101. Legislation § 99. Enacted March 21, 1872; based on Bishop on Mar- riage and Divorce, 4th ed., § 783. § 100. Absence becomes desertion, when. Absence or sepa- ration, proper in itself, becomes desertion whenever the intent to desert is fixed during such absence or separation. [Amend- ment approved 1874; Code Amdts. 1873-7-1, p. 189.] Legislation § 100. 1. Enacted March 21, 1872 (based on Bishop on Marriage and Divorce, 4th ed., §784), and then read: "The separation and intent to desert are not always coincident. Temporary absence 39 DISSOLUTION OF MARRIAGE. § lOo or separation, proper in itself, may be converted into desertion when- ever the intent to desert is fixed during such absence or separation." 2. Amended by Code Amdts. 1873-74, p. 189. § 101. Consent to separate revocable. Consent to a separa- tion is a revocable act, and if one of the parties afterwards, in good faith, seeks a reconciliation and restoration, but the other refuses it, such refusal is desertion. Legislation § 101. Enacted March 21, 1872; based on Bishop on Mar- riage and Divorce, § 786. § 102. Desertion, how cured. Effect of refusing condona- tion. If one party deserts the other, and before the expiration of the statutory period required to make the desertion a cause of divorce, returns and offers in good faith to fulfill the mar- riage contract, and solicits condonation, the desertion is cured. If the other party refuse such offer and condonation, the refusal shall be deemed and treated as desertion by such party from the time of refusal. [Amendment approved 1874; Code Amdts. 1873^74, p. 190.] Legislation § 102. 1. Enacted March 21, 1872 (based on Bishop on Marriage and Divorce, § 786; Benkert v. Benkert, 32 Cal. 467), and then read: "If one party deserts the other, and before the expiration of the statutory period required to make the desertion complete, truly repents, returns, and offers, in good faith, to fulfill the marriage con- tract, and solicits condonation, the desertion is cured. If the other party refuses such offer and condonation, it is desertion by such party from the time of refusal." 2. Amended by Code Amdts. 1873-74, p. 190. § 103. Wife must abide by husband's selection of home, or it is desertion on her part. The husband may choose any rea- sonable place or mode of living, and if the wife does not con- form thereto, it is desertion. Same principle: Post, § 156. Separate domicile for purposes of divorce proceeding: See post, § 129. Legislation § 103. Enacted March 21, 1872; based on Bishop on Mar- riage and Divorce, § 788; Field's Draft, N. Y. Civ. Code, §§ 75, 76; Hardenburg v. Hardenburg, 14 Cal. 654. § 104. If the place is unfit, and wife refuses to conform, it is desertion by the husband. If the place or mode of living selected by the husband is unreasonable and grossly unfit, and the wife does not conform thereto, it is desertion on the part of the husband from the time her reasonable objections are made known to him. Legislation § 104. Enacted March 21, 1872. § 105. Willful neglect, what. Willful neglect is the neglect of the husband to provide for his wife the common necessaries § 107 Civil code. 40 of life, he having the ability to do so ; or it is the failure to do so by reason of idleness, protiigaey, or dissipation. Duration of neglect: See post, § 107. Legislation § 105. Enacted March 21, 1872; based on Stats. 1869-70, p. 291. § 106. Habitual intemperance, what. Habitual intemper- ance is that degree of intemperance from the use of intoxicat- ing drinks which disqualifies the person a great portion of the time from properly attending to business, or which would reasonably intlict a course of great mental anguish upon the innocent party. Duration of intemperance: See post, § 107. Legislation § 106. 1. Enacted March 21, 1872; based on Stats. 1851, p. 186; Stats. 1869-70, p. 291; Mahone v. Mahone, 19 Cal. 626; Bishop on Marriage and Divorce, 4th ed., § 813; the code commissioners say- ing, "The last clause of the section is new. It speaks for itself. The presence of an habitual drunkard at home, casting reproaches and in- dignities upon his wife, ought to be a better cause of divorce than being drunk at his place of business.'" 2. Amendment by Stats. 1901, p. 337; unconstitutional. See note, § 4, ante. § 107. Habitual intemperance, etc., for one year. Willful desertion, willful neglect, or habitual intemperance must con- tinue for one year before either is a ground for divorce. Legislation § 107. Enacted March 21, 1872. ARTICLE III. Causes for Denying Divorce. § 111. Divorces denied, on showing what. § 112. Connivance, what. § 113. Corrupt consent, how manifested. § 114. Collusion, what. § 115. Condonation, what. § 116. Eequisites to condonation. § 117. Condonation implies what. § 118. Evidence of condonation. § 119. • Condonation. Can only be made when. § 120. Concealment of facts in certain cases makes condonation void. § 121. Condonation, how revoked. § 122. Recrimination, what. § 123. Condonation. When to bar defense. § 124. Divorce, when denied. § 125. Lapse of time establishes certain presumptions. § 126. Presumptions may be rebutted. § 127. Limitation of time. § 128. Residence of plaintiff and cross-complainant in action for divorce. § 129. Proof of actual residence required. Presumptions do not apply. § 130. Divorces not to be granted by default, etc. § 131. Court must file decision in divorce cases. Interlocutory judgment. § 132. Final judgment, after one year. 41 CAUSES FOR DENYING DIVORCE. § 116 § 111. Divorces denied, on showing what. Divorces must be denied upon showing : 1. Connivance ; or, 2. Collusion ; or, 3. Condonation; or, 4. Recrimination; or, 5. Limitation and lapse of time. Connivance: Post, §§ 112 et seq. Collusion: Post, § 114. Condonation: Post, §§ 115 et seq. Recrimination: Post, §§122 et seq. Limitation, and lapse of time: Post, §§ 124 et seq. Legislation § 111. Enacted March 21, 1872; based on Bishop on Marriage and Divorce, §§ 28, 36, 74. § 112. Connivance, what. Connivance is the corrupt con- sent of one party to the commission of the acts of the other, constituting the cause of divorce. Legislation § 112. Enacted March 21, 1872; based on Bishop on Marriage and Divorce, 4th ed., § 5. § 113. Corrupt consent, how manifested. Corrupt consent is manifested by passive permission, with intent to connive at or actively procure the commission of the acts complained of. Legislation § 113. Enacted March 21, 1872; based on Bishop on Marriage and Divorce, 4th ed., § 6. § 114. Collusion, what. Collusion is an agreement between husband and wife that one of them shall commit, or appear to have committed, or to be represented in court as having committed, acts constituting a cause of divorce, for the i)ur- pose of enabling the other to obtain a divorce. Legislation § 114. Enacted March 21. 1872; based on Bishop on Marriage and Divorce, 4th ed., § 28. § 115. Condonation, what. Condonation is the conditional forgiveness of a matrimonial offense constituting a cause of divorce. Revoking condonation: Post, § 121. Condonation a recriminatory defense: Post, § 123. Legislation § 115. Enacted March 21, 1872; based on Benkert v. Benkert, 32 Cal. 467. §116. Requisites to condonation. The following require- ments are necessary to condonation : 1. A knowledge on the part of the condoner of the facts constituting the cause of divorce; 2. Reconciliation and remission of the offense by the injured party ; 3. Restoration of the offending party to all marital rights. § 120 CIVIL CODE. 42 Legislation § 116. Enacted March 21, 1872; based on Bishop on Marriage and Divorce, §§ 53, 71. § 117. Condonation implies what. Condonation implies a condition subsequent ; that the forgiving party must be treated with conjugal kindness. Legislation § 117. Enacted March 21, 1872; based on Bishop on Marriage and Divorce, §§ 53, 71. § 118. Evidence of condonation. Where the cause of divorce consists of a course of offensive conduct, or arises, in cases of cruelty, from excessive acts of ill-treatment which may, aggregately, constitute the offense, cohabitation, or pas- sive endurance, or conjugal kindness, shall not be evidence of condonation of any of the acts constituting such cause, unless accompanied by an express agreement to condone. [Amend- ment approved 1874; Code Amdts. 1873-74, p. 190.] Legislation § 118. 1. Enacted March 21, 1872 (based on Bishop on Marriage and Divorce, 4th ed., § 50), and then read: "Where the cause of divorce consists of a course of offensive conduct coveiing the pre- scribed statutory period, or arising, in case of cruelty, from successive acts of ill treatment which may, aggregately, constitute the offense, cohabitation, or passive endurance, or conjugal kindness shall not be evidence of condonation of any part of the facts or period constituting such causes, unless accompanied by an express agreement to condone." 2. Amended by Code Amdts. 1873-74, p. 190. § 119. Condonation. Can only be made when. In cases mentioned in the last section, condonation can be made only after the cause of divorce has become complete, as to the acts complained of. [Amendment approved 1874 ; Code Amdts. 1873-74, p. 190.] Legislation § 119. 1. Enacted March 21, 1872 (based on Bishop on Marriage and Divorce, 4th ed., § 63), and then read: "In cases men- tioned in the last section, only after the cause of divorce has become complete, as to the acts complained of and the period of their continu- ance, can condonation be made. Even then, further efforts to live with and reform the offending party must not, unsupported by an express agreement of condonation -made without undue influence, be construed as evidence of condonation." The code commissioners say: " 'Though such party might be willing to give the other a fair trial of future matrimonial fidelity, if sure of retaining his remedy,' yet would not, if the remedy was in danger of being lost in such trial." 2. Amended by Code" Amdts. 1873-74, p. 190. § 120. Concealment of facts in certain cases makes condona- tion void. A fraudulent concealment by the condouee of facts constituting a dift'erent cause of divorce from the one con- doned, and existing at the time of condonation, avoids such condonation. Legislation § 120. Enacted March 21, 1872; based on Bishop on Marriage and Divorce. 4th ed., §§ 65, 66; Dempster v. Dempster, 2 Swab. & T. 438, 444. 43 CAUSES FOR DENYING DIVORCE. § 123 § 121. Condonation, how revoked. Condonation is revoked and the original cause of divorce revived : 1. When the condonee commits acts constituting a like or other cause of divorce ; or, 2. When the condonee is guilty of great conjugal unkind- ness, not amounting to a cause of divorce, but sufficiently habitual and gross to show that the conditions of condonation had not been accepted in good faith, or not fulfilled. Legislation § 121. Enacted March 21, 1872; based on Palmer v. Palmer, 2 Swab. & T. 61, 62; Bishop on Marriage and Divorce, §§ 53, 64; the code commissioners saying, "As to subd. 2, Mr. Bishop, above cited, says, 'The diflferenee of opinion among judges and lawyers relate to the latter [this] branch of the proposition.' It is best to settle the question." § 122. Recrimination, what. Recrimination is a showing by the defendant of any cause of divorce against the plaintiff, in bar of the plaintiff's cause of divorce. Legislation § 122. Enacted March 21, 1872; based on 2 Bishop on Marriage and Divorce, § 75; the code commissioners saying, "This simple section settles many conflicting points arising from the practice of leaving with the courts a wide discretion as to what degree of bad conduct or what degree of proof of causes of divorce shall be required when they are shown in recrimination, or whether unlike causes of divorce can be so shown." § 123. Condonation. When to bar defense. Condonation of a cause of divorce, shown in the answer as a recriminatory defense, is a bar to such defense, unless the condonation be revoked, as provided in section one hundred and twenty-one, or two years have elapsed after the condonation, and before the accruing or completion of the cause of divorce against which the recrimination is shown. [Amendment approved 1874; Code Amdts. 1878-74, p. 190.] Legislation § 123. 1. Enacted March 21, 1872 (based on Bishop on Marriage and Divorce, §§ 97-100), and then read: "Condonation of a cause of divorce shown in the answer as a recriminatory defense is a bar to such defense when the condonee has fully performed the marital duties, and is without reproach since the condonation, or if three years or more have elapsed after the condonation, and before the accruing or completion of the cause of divorce against which the recrimination is shown." The code commissioners say: "The difficulty of this sub- ject will be better comprehended by reading th<" y,ections above cited. It would seem better to have some rule, even if it sometimes works a hardship, than to have confusion arising from deciding each case upon its own merits." 2. Amended by Code Amdts. 1873-74, p. 190. 3. Amendment by Stats. 1901, p. 337; unconstitutional. See note, § 4, ante. § 128 CIVIL CODE. 44 § 124. Divorce, w^hen denied. A divorce must be denied : One. Wlien the cause is adultery and the action is not com- menced within tvf-o years after the commission of the act of adultery, or after its discovery by the injured party; or, Two. 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. Three. In all other cases when there is an unreasonable lapse of time before the commencement of the action. [Amendment approved 1874; Code Amdts. 1873-74, p. 191.] Legislation § 124. 1. Enacted March 21, 1872. 2. Amended by Code Amdts. 1873-74, p. 191, (1) in subd. 1, chan- ging "five years" to "two years"; (2) in subd. 2, changing "one year" to "two years"; and (3) in subd. 3, omitting "after the commission of the offense and," after "lapse of time." § 125. Lapse of time establishes certain presumptions. Un- reasonable lapse of time is such a delay in commencing the action as establishes the presiimption that there has been con- nivance, collusion, or condonation of the offense, or full acqui- escence in the same, with intent to continue the marriage rela- tion notwithstanding the commission of such offense. Legislation § 125. Enacted March 21, 1872; based on Bishop on Mar- riage and Divorce, 4th ed., § 108. § 126. Presumptions may be rebutted. The presumptions arising from lapse of time may be rebutted by showing reason- able grounds for the delay in commencing the action. Legislation § 126. Enacted March 21, 1872; based on Bishop on Mar- riage and Divorce, 4th ed., § 106. § 127. Limitation of time. There are no limitations of time for commencing actions for divorce, except such as are con- tained in section one hundred and tAventy-four. Legislation § 127. Enacted March 21, 1872. § 128. Residence of plaintiff and cross-complainant in action for divorce. A divorce must not be granted unless the plain- tiff has been a resident of the state one year, and of the county in which the action is brought three months, next preceding the commencement of the action; provided, that a cross-complain- ant in an action for divorce need not be or have been a resident of the state or of the county in which the action is brought or pending in order to entitle such cross-complainant to a divorce in said action; and provided, further, that in an action for divorce a cross-complainant must personally verify the cross-complaint. [Amendment approved 1911; Stats. 1911, p. 686.] 45 CAUSES FOR DENYING DIVORCE. § 131 Legislation § 128. 1. Enacted March 21, 1872. 2. Amended by Stats. 1891, p. 52, (1) substituting "one year" for "six months"; and (2) inserting "and of the county in which the action is brought three months." 3. Amended by Stats. 1911, p. G8G. The change in 1911 consisted in the addition of the proviso. . § 129. Proof of actual residence required. Presumptions do not apply. In actions for divorce the presumption of law, that the domicile of the husband is the domicile of the wife, does not apply. After separation, each may have a separate domicile, depending for proof upon actual residence, and not upon legal presumptions. Legislation § 129. Enacted March 21, 1872; based on Kashaw v. Kashaw, 3 Cal.. 312; Field's Draft, N. Y. Civ. Code, § 711; Bishop on Marriage and Divorce, §§ 124-131. §130, Divorces not to be granted by default, etc. No divorce can be granted upon the default of the defendant 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 court, must be upon written questions and answers. [Amendment approved 187-1; Code Amdts. 1873-74, p. 191.] Confession of adultery not sufficient to justify divorce: See Code Civ. Proc, § 2079. Legislation § 130. 1. Enacted March 21, 1872, and then read: "No divorce must be granted upon the default of the defendant, or upon the statement, admission, or uncorroborated testimony of the parties, or upon any statement or finding of fact made by a referee, but the court must require proof of the facts alleged, which proof, if taken before a referee, must be upon written questions and answers." 2. Amended by Code Amdts. 1873-74, p. 191. § 131. Court must file decision in divorce cases. Interlocu- tory judgment. In actions for divorce, the court must file its decision and conclusions of law as in other cases, and if it de- termines that no divorce shall be granted, final judgment must thereupon be entered accordingly. If it determines that the divorce ought to be granted, an interlocutory judgment must be entered, declaring that the party in whose favor the court decides is entitled to a divorce. After the entry of the inter- locutory judgment, neither party shall have the right to dis- miss the action without the consent of the other. [Amend- ment approved 1915 ; Stats. 1915, p. 209.] Legislation § 131. 1. Added by Stats. 1903, p. 75. 2. Amended by Stats. 1909, p. 941 to read: "In actions for divorce, the court must file its decision and conclusions of law as in other cases, and if it determines that no divorce shall be granted, final judgment § 136 CIVIL CODE. 46 must thereupon be entered accordingly. If it determines that the divorce ought to be granted, an interlocutory judgment must be en- tered, declaring that the party in whose favor the court decides is entitled to a divorce, and from such interlocutory judgment an appeal may be taken within six months after its entry, in the same manner and with like effect as if the judgment were final. After the entry of the interlocutory judgment, neither party shall have the right to dis- miss the action withoait the consent of the other." 3. Amended by Stats. 1915, p. 209. § 132. Final judgment, after one year. When one year has expired after the entry of such interlocutory judgment, the court on motion of either party, or upon its own motion, may enter the final judgment granting the divorce, and such final judgment shall restore them to the status of. single persons, and permit either to marry after the entry thereof; and such other and further relief as may be necessary to complete dis- position of the action, but if any appeal is taken from the interlocutory judgment or motion for a new trial made, final judgment shall not be entered until such motion or appeal has been finally disposed of, nor then, if the motion has been granted or judgment reversed. The death of either party after the entry of the interlocutory judgment does not impair the power of the court to enter final judgment as hereinbefore provided ; but such entry shall not validate any marriage con- tracted by either party before the entry of such final judg- ment, nor constitute any defense of any criminal prosecution made against either. Legislation § 132. Added by Stats. 1903, p. 76. ARTICLE IV. General Provisions. § 136. Divorce. Maintenance by husband wh'ere judgment is denied. § 137. Alimony pending suit for divorce. Permanent support. § 138. Custody and maintenance of minors during actions for divorce. § 139. Support of wife and children on divorce or separation granted to wife. ' § 140. Security for maintenance and alimony. § 141. Court shall resort to what, in executing certain sections. § 142. If wife has sufficient for her support, court may withhold allow- ance. § 143. Community and separate property may be subjected to support and educate children. § 144. Legitimacy of issue. § 145. Same. § 146. Disposition of community property on divorce. § 147. Same. § 148. Such an action subject to revision on appeal. § 136. Divorce. Maintenance by husband where judgment is denied. Though judgment of divorce is denied, the court may, in an action for divorce, provide for the maintenance by 137. Alimony Pending Suit for Divorce; Permanent Support and Maintenance. When an action for divorce is pending, the court may, in its discretion, require the husband to pay as ali- mony any money necessary to enable the wife to support her- self and her oiiildren, or to prosecute or defend the action. When the liusband wilfullj' deserts the wife or when the hus- band wilfully fails to provide for the wife or when the wife has any cause of action for divorce as provided in section ninety- two of this code, she may, without applying for divorce, main- tain in the superior- court an action against him for permanent support and maintenance of herself or of herself and childien. During the pendency of such action the court may, in its discre- tion, require the husband to pay as alimony any money neces- .sary for the prosecution of the action and for support and main- tenance, and execution may issue therefor in the discretion of the court. [The court, in granting the wife permanent support and maintenance of herself, or of herself and children, In any such action, shall make the same disposition of the community property and of the homestead, if any, as would have been made if the marriage had been dissolved by the decree of a court of competent jurisdiction.] The final judgment in such action may be enforced by the court by s/uch order or orders as in its discretion it may fi'om time to time deem necessary, and such order or orders may be varied, altered, or revoked at the discretion of the court. (In effect 90 days from and after April 27, 1917. Stats. 1917, Chap. 36.) Civ. Cade, 1917. 47 GENERAL PROVISIONS RELATING TO DIVORCE. § 137 the husband, of the wife and children of the marriage, or any of them. [Amendment approved 1905; Stats. 1905, p. 634.] Alimony generally: See post, § 137. Legislation § 136. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 68), and then read: "Though judgment of divorce is denied, the court may, in an action for divorce, provide for the mainte- nance of the wife and her children, or any of them, by the husband." 2. Amendment by Stats. 1901, p. 337; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1905, p. 634. § 137. Alimony pending- suit for divorce. Permanent sup- port. When an action for divorce is pending, the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself and her children, or to prosecute or defend the action. When the hus- band willfully deserts the wife or when the husband willfully fails to provide for the wife or when the wife has any cause of action for divorce as provided in section ninety-two of this code, she may, without applying for a divorce, maintain in the superior court an action against him for permanent support and maintenance of herself or of herself and children. Dur- ing the pendency of such action the court may, in its discre- tion, require the husband to pay as alimony any money neces- sary for the prosecution of the action and for support and maintenance, and execution may issue therefor in the discre- tion of the court. The final judgment in such action may be enforced by the court by such order or orders as in its discre- tion it may from time to time deem necessary, and such order or orders may be varied, altered, or revoked at the discretion of the court. [Amendment approved 1907 ; Stats. 1907, p. 82.] Legislation § 137. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 71), and then read: "While an action for divorce is pending the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action." 2. Amended by Code Amdts. 1877-78, p. 76, adding, "When the hus- band willfully deserts the wife she may, without applying for a di- vorce, maintain in the district court an action against him for perma- nent support and maintenance of herself, or of herself and children. During the pendency of such action, the court may, in its discretion, require the husband to pay, as alimony, any money necessary for the prosecution of the action, and for support and maintenance. The final judgment in such action may be enforced by the court by such order or orders as in its discretion it may, from time to time, deem neces- sary, and such order or orders may be varied, altered, or revoked at the discretion of the court." 3. Amended by Code Amdts. 1880, p. 4, (1) substituting (a) "When" for "While," as first word of section, and (b) "superior court" for "dis- trict court"; and (2) inserting "and executions may issue therefor, in the discretion of the court," after "maintenance." § 140 CIVIL CODE. 48 i. Ameudment by Stats. 1901, p. 337; unconstitutional. See note, § i, ante. 5. Amended by Stats. 1905, p. 205, substituting (1) "and" for "or" before "her children," (2) "When the wife has any cause of action for divorce as provided in section ninety-two of this code" for "When the husband willfully deserts the wife," and (3) "execution" for "executions." 6. Amended by Stats. 1907, p. 82, inserting at beginning of second sentence, "When the husband willfully deserts the wife or when the husband willfully fails to provide for the wife or." § 138. Custody and maintenance of minors during actions for divorce. In actions for divorce the court may, during the pendency of the action, or at the linal hearing or at any time tliereat'ter during the minority of any of the children of the marriage, make sucli order for the custody, care, education, maintenance and support of sucli minor children as may seem necessary or proper, and may at any time modify or vacate the same. [Amendment approved 1905; ^stats. 1905, p. 43.] Exclusive control of child, without divorce: Post, §§ 199, 214. Awarding custody of child. Considerations that should guide the court: See post, § 2i6. Custody when parents separated: See post, § 214. Legislation § 138. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 72), and then read: "In an action for divorce the court may, before or after judgment, give such direction for the custody, care, and education of the children of the marriage as may seem neces- sary or proper, and may at any time vacate or modify the same." 2. Amended by Stats. 1905, p. 43. § 139. Support of virif e and children on divorce or separa- tion granted to wife. Where a divorce is granted for an of- fense of the husband, the court may compel him to provide for the maintenance of the children of the marriage, and to 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 respec- tively; and the court may, from time to time, modify its orders in these respects. Compare with § 148, post. Legislation § 139. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 73. § 140. Security for maintenance and alimony. The court may require the husband to give reasonable security for pro- viding maintenance or making any payments required under the provisions of this chapter, and may enforce the same by the appointment of a receiver, or by any other remedy applica- ble to the case. Legislation § 140. Enacted March 21, 1872; based on Field's Draft, X. Y'. Civ. Code, § 74. 49 GENERAL PROVISIONS RELATING TO DIVORCE. § 146 § 141. Court shall resort to what, in executing certain sec- tions. In executing the five preceding sections the court must resort : • 1. To the community property; then, 2. To the separate property of the husband. Legislation § 141. Enacted March 21, 1872. § 142. If wife has sufficient for her support, court may with- hold allowance. When the wife has either a separate estate, or there is community property sufficient to give her alimony or a proper support, the court, in its discretion, may withhold any allowance to her out of the separate property of the hus- band. Legislation § 142. Enacted March 21, 1872. § 143. Community and separate property may be subjected to support and educate children. The community property and the separate property may be subjected to the support and education of the children in such proportions as the court deems just. Legislation § 143. Enacted March 21, 1872. § 144. Legitimacy of issue. * When a divorce is granted for the adultery of the husband, the legitimacy of children of the marriage begotten of the wife before the commencement of the action is not affected. Legitimacy of children: See, generally, post, § 193. See, also, post, §145. Legislation § 144. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 62. 2. Repeal by Stats. 1901, p. 338; unconstitutional. See note, § 4, ante. § 145. Same. 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 legiti- macy of other children of the wife may be determined by the court, upon the evidence in the case. Legislation § 145. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 63. § 146. Disposition of community property on divorce. In ■ case of the dissolution of the marriage by the decree of a court of competent jurisdiction, the community property, and the homestead, shall be assigned as follows: One. If the decree be rendered on the ground of adultery, or extreme cruelty, the community property shall be assigned to the respective parties in such proportions as the court, from all the facts of the case, and the condition of the parties, may deem just. Civ. Code — 4 § 14S CIVIL CODE. ^ 50 Two. If the decree be rendered on any other ground than that of adultery or extreme cruelty, the community property shall be equally divided between the parties. Three. If a homestead has been selected from the com- munity property, it may be assigned to the innocent party, either absolutely or for a limited period, subject, in the latter case, to the future disposition of the court, or it may, in the discretion of the court, be divided, or be sold and the proceeds divided. Four. If a homestead has been selected from the separate property of either, it shall be assigned to the former owner of such property, subject to the power of the court to assign it for a limited period to the innocent party. [Amendment ap- proved 1874; Code Amdts. 1873-74, p. 191.] Discretion of court: See post, § 148. Legislation § 146. 1. Enacted March 21, 1872 (based on Stats. 1850, p. 254, § 12), and then read: "In case of the dissolution of the mar- riage by decree of any court of competent jurisdiction, the commu- nity property must be equally divided between the parties; and the court granting the decree must make such order for the division of the community property, or the sale and equal distribution of the proceeds thereof, as the nature of the case may require." 2. Amended by Code Amdts. 1873-74, p. 191. 3. Amendment by Stats. 1901, p. 338; unconstitutional. See note, § 4, ante. § 147, Same. The court, in rendering a decree of divorce, must make such order for the disposition of the community property, and of the homestead, as in this chapter provided, and, whenever necessary for that purpose, may order a parti- tion or sale of the property and a division or other disposition of the proceeds. [Amendment approved 1874; Code Amdts. 1873-74, p. 192.] Legislation § 147. 1. Enacted March 21, 1872 (based on Stats. 1850, p. 254, § 12), aud then read: "When the decree of divorce is rendered on the ground of adultery or extreme cruelty, the party in fault is only entitled to such portion of the community property as the court grant- ing the decree may, in its discretion, from the facts of the case, deem just." 2. Amended by Code Amdts. 1873-74, p. 192. § 148. Such an action subject to revision on appeal. The disposition of the community property, and of the homestead, as above provided, is subject to revision on appeal in all particu- lars, including those which are stated to be in the discretion of the court. [Amendment approved 1874; Code Amdts. 1873-74; p. 192.] Legislation § 148. 1. Enacted March 21, 1872 (based on Stats. 1850, p. 254, § 12), and then read: "The order for the disposition of the com- 51 HUSBAND AND WIFE. § 156 munity property, under the preceding section, is subject to revision on appeal in all respects, including the exercise of discretion by the court below." 2. Amended by Code Amdts. 1873-74, p. 192. CHAPTER III. Husband and Wife. § 155. Mutual obligations of husband and wife. § 156. Eights of husband, as head of family. § 157. In other respects their interests separate. § 158. Husband and wife may make contracts. § 159. Husband and wife. Property relations. § 160. Consideration for agreement of separation. § 161. May be joint tenants, etc. § 162. Separate property of the wife. § 163. Separate property of the husband. § 164, Community property. Conveyances by married woman. Limita- tions. § 165. Inventory of separate property of wife. § 166. Filing inventory notice of wife's title. § 167. Community property. Contracts by wife. § 168. Earnings of wife not liable for debts of husband. § 169. Earnings of wife, when living separate, separate property. § 170. Liability for debts of wife contracted before marriage. § 171. Liability of separate property of wife. § 171a. Married woman's torts. § 172. Management, control, and disposition of community property. § 173. Curtesy and dower not allowed. § 174. Support of wife. / § 175. Husband not liable when abandoned by wife. § 176. When wife must support husband. § 177. Eights 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 settlements. § 155. Mutual obligations of husband and wife. Husband and wife contract towards each other obligations of mutual respect, fidelity, and support. Mother aiding in support of children: Post, § 196. Wife's support of husband: See post, § 176. Husband's support of wife: See post, §§ 174, 175; and ante, § 105, where the failure so to do gives ground for divorce. Legislation § 155. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 75. § 156. Rights of husband, as head of family. The husband is the head of the family. He may choose any reasonable place or mode of living, and the wife must conform thereto. Head of family, for homestead purposes: See post, § 1261. Parent changing residence of child: Post, § 213. Husband's selection of dwelling-place. Desertion, if wife does not conform thereto: Ante, § 103. § 162 CIVIL CODE. 52 Legislation § 156. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 76. § 157. In other respects their interests separate. Neither husband nor wife lias any interest in tlie property of the other, but neither can be excluded from the other's dwelling. Legislation § 157. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 78. § 158. Husband and wife may make contracts. Either hus- band or wife may enter into any engagement or transaction with the other, or with any other person, respecting property, which either might if unmarried; subject, in transactions be- tween themselves, to the general rules which control the ac- tions of persons occupying confidential relations with each other, as defined by the title on trusts. Legislation § 158. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 79. § 159. Husband and wife. Property relations. A husband and wife cannot, by any contract with each other, alter their legal relations, except as to property, and except that they may agree, in writing, to an immediate separation, and may make provision for the support of either of them and of their children during such separation. [Amendment approved 1874 ; Code Amdts. 1873-74, p. 193.] Marriage settlements: Post, §§ 177-181. . Legislation § 159. 1. Enacted March 21, 1872; based on Stats. 1850, p. 254, §§ 14, 15, 22, 23; Field's Draft, N. Y. Civ. Code, § 80. 2. Amended by Code Amdts. 1873-74, p. 193, inserting "in writing" after "may agree." § 160. Consideration for agreement of separation. The mu- tual consent of the parties is a sufficient consideration for such an agreement as is mentioned in the last section. Legislation § 160. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 81. § 161. May be joint tenants, etc. A husband and wife may hold property as joint tenants, tenants in common, or as com- munity property. Legislation § 161. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 82. 2. Amendment by Stats. 1901, p. 338; unconstitutional. See note, § 4, ante. § 162. Separate property of the wiie. All property of the wife, owned by her before nuirriage, and that acquired after- wards by gift, bequest, devise, or descent, with the rents, issues, and profits thereof, is her separate property. The wife may, 164. Community Property; Conveyances by Married Woman; Limitations. All other property acquired after marriage by eitlier husband or wife, or both, [Including real property situated in this state, and personal property wherever situated, acquired while domiciled elsewhere, wiiich would not have been the separate property of eithier If acquired while domiciled in this state,] is community property; but [wherever] any pioperty is conveyed to a married woman by an instrument in writing, the presumption is that the title is thereby vested in her as her separate property. And in case the conveyance [Is] to such married' woman and to her husband, or to her and any other person, the presumption is that the married woman takes the part conveyed to her, as ten- ant in common, unless a different intention is expressed in the in.'jtrument, and the presumption in this section mentioned is con- clusive in favor of a purchaser or encumbrancer in good faith and for a valuable consideration. And in cases where married women have conveyed, or shall hereafter convey, real property which they acquired prior to May nineteenth, [one thousand eight hun- dred eighty-nine,] the husband, or their heirs or assigns, of siuch married woman, shall be barred from commencing or maintaining any action to show that .said real property was community propr erty, or to recover said real property, as follows: As to con- veyances heretofore made, from and after one year from the date of the taking effect of this act; and as to conveyances here- after made, from and after one year from the filing for record in the recorder's office of such conveyances, resipectively. (In effect 90 days from and after April 27, 1917. Stats. 1917, Cliap. nsi.) civ. Code, 1917. p 53 HUSBAND AND WIFE. § 164 without the consent of her husband, convey her separate prop- erty. Legislation § 162. Enacted March 21, 1872; based on Stats. 1850, p. 254, § 1; Const. 1849, art. xi, § 14. § 163. Separate property of the husband. All property owned by the husband before marriage, and that acquired afterwards by gift, bequest, devise, or descent, with the rents, issues, and profits thereof, is his separate property. Community property: See definition of term, post, § 687. Community property liable for what debts: Post, § 167. Husband's conwol over community property: Post, § 172. Descent of community property: Post, §§ 1401, 1402. Legislation § 163. Enacted Maich 21, 1872; based on Stats. 1850, p. 254, § 1. § 164. Community property. Conveyances by married woman. Limitations. All other property acquired after mar- riage by either husband or wife, or both, is community prop- erty; but whenever any property is conveyed to a married woman by an instrument in writing, the presumption is that the title is thereby vested in her as her separate property. And in case the conveyance be to such married Avoman and to her husband, or to her and any other person, the presumption is that the married woman takes the part conveyed to her, as tenant in common, unless a different intention is expressed in the instrument, and the presumption in this section mentioned is conclusive in favor of a purchaser or encumbrancer in good faith and for a valuable consideration. And in cases where married women have conveyed, or shall hereafter convey, real property which thev acquired prior to May nineteenth, eighteen hundred and eighty-nine, the husbands, or their heirs or assigns, of such married women, shall be barred from com- mencing or maintaining any action to show that said real property was community property, or to recover said real property, as folloAvs : As to conveyances heretofore made, from and after one year from the date of the taking effect of this act; and as to conveyances hereafter made, from and after one year from the filing for record in the recorder's office of such convevances. respectively. [Amendment approved 1897; Stats. 189?; p. 63.] Community property: See post, § 687. Legislation § 164. 1. Enacted March 21, 1872 (based on Stats. 1850, p. 254, §2), and then read: "All other property acquired after mar- riage, by either husband or wife, or both, is community property." 2. Amended by Stats. 1889, p. 328, adding at end of section, "but whenever any property is conveyed to a married woman by an instru- ment in writing, the presumption is that the title is thereby vested in her as her separate property. And in case the conveyance be to such § 169 CIVIL CODE. 54 married woman and her husband, or to her and any other person, the presumption is that the married woman takes the part conveyed to her as tenant in common, unless a different intention is expressed in the instrument, and the presumption in this section mentioned is con- clusive in favor of a purchaser or encumbrancer in good faith and for a valuable consideration." 3. Amended by Stats. 1893, p. 71, adding the last sentence. 4. Amended by Stats. 1897, p 63. 5. Amendment by Stats. 1901, p. 338; unconstitutional. See note, § 4, ante. § 165. Inventory of separate property of wife. A full and complete inventory of the separate personal property of the wife may be made out and signed by her, acknowledged or proved in the manner required by law for the" acknowledg- ment or proof of a grant of real property by an unmarried woman, and recorded in the office of the recorder of the county in which the parties reside. Legislation § 165. Epacted March 21, 1872; based on Stats. 1850, p. 254, §§ 3, 4. § 166. Filing inventory notice of wife's title. The filing of the inventory in the recorder's office is notice and prima facie evidence of the title of the wife. [Amendment approved 1874; Code Amdts. 1873-74, p. 193.] Legislation § 166. 1. Enacted March 21, 1872; based on Stats. 1850, . p. 254, § 5. 2. Amended by Code Amdts. 1873-74, p. 193, changing "primary" to "prima facie." § 167. Community property. Contracts by wife. The prop- erty of the community is not liable for the contracts of the wife, made after marriage, unless secured by a pledge or mortgage thereof executed by the husband. [Amendment approve^d 1874; Code Amdts. 1873-74, p. 193.] Debts of wife: See post, §§ 170, 171, 174. Community property is liable for husband's debts: Post, § 172. Necessaries furnished wife: See post, § 174. Legislation § 167. 1. Enacted March 21, 1872, and then read: "A wife cannot make a contract for the payment of money." 2. Amended by Code Amdts. 1873-74, p. 193. § 168. Earnings of wife not liable for debts of husband. The earnings of the wife are not liable for the debts of the husband. Legislation § 168. Enacted March 21, 1872; based on Stats. 1869-70, p. 226. § 169. Earnings of wife, when living' separate, separate property. The earnings and accumulations of the wife, and of her minor children living with her or in her custody, while she is living separate from her husband, are the separate prop- erty of the wife. 55 HUSBAND AND WIFE. § 172 Sole traders. As to married women becoming sole traders, and their rights and liabilities as such, see Code Civ. Proc, §§ 1811-1821, inclu- sive. Earnings of minors: See post, § 212. Legislation § 169. Enacted March 21, 1872; based on Stats. 1869-70, p. 226. § 170. Liability for debts of wife contracted before mar- riage. The separate property of the husband is not liable for the debts of the wife contracted before the marriage. Legislation § 170. 1. Enacted March 21, 1872; based on Stats. 1850, p. 254, §§5, 13. 2. Amendment by Stats. 1901, p. 339; unconstitutional. See note, § 4, ante. § 171. Liability of separate property of wife. The sepa- rate property of the wife is liable for her own debts contracted before or after her marriage, but is not liable for her hus- band's debts ; provided, that the separate property of the wife is liable for the payment of debts contracted by the husband or wife for the necessaries of life furnished to them or either of them while they are living together; provided, that the provisions of the foregoing proviso shall not apply to the sepa- rate property of the wife held by her at the time of her mar- riage or acquired by her by devise, succession, or gift, other than by gift from the husband, after marriage. [Amendment approved 1915; Stats. 1915, p. 920.] Legislation § 171. 1. Enacted March 21, 1872 (based on Stats. 1850, p. 254, §§ 5, 13), and then read: "The separate property of the wife is not liable for the debts of her husband, but is liable for her own debts, contracted before or after marriage." 2. Amended by Stats. 1905, p. 206, to read: "The separate property of the wife is liable for her own debts contracted before or after her marriage', but is not liable for her husband's debts; provided, that such property is liable for the payment of debts contracted by the hus- band or wife for the necessaries of life furnished to them or either of them while they are living together. Provided that the provisions of this act shall not apply to the separate property of the wife held by her at the time of her marriage or acquired by her by devise or succession after marriage." 3. Amended by Stats. 1915, p. 920. § 171a. Married woman's torts. For civil injuries com- mitted by a married woman, damages may be recovered from her alone, and her husband shall not be liable therefor, except in cases where he would be jointly liable with her if the mar- riage did not exist. Legislation § 171a. Added by Stats. 1913, p. 217. § 172. Management, control, and disposition of community property. The husband has the management and control of the community property, with the like absolute power of dis- § 174 CIVIL CODE. 56 position, other than testamentary, as he has of his separate estate ; provided, however, that he cannot make a gift of such community property, or convey the same v^ithout a valuable consideration, unless the wife, in writing, consent thereto ; and provided also, that no sale, conveyance or encumbrance of the furniture, furnishings and fittings of the home, or of the clothing and wearing apparel of the wife or minor chil- dren, which is community property, shall be made without the written consent of the wife. [Amendment approved 1901 ; Stats. 1901, p. 598.] Testamentary control over community property: See post, §§ 1401, 1402, which prescribe the course of descent of common property, and limit the power of testamentary disposition over the same. Community property. Generally: See ante. § 164. Dissolution of the community by divorce: See ante, §§ 147, 148. Legislation § 172. 1, Enacted March 21. 1872 (based on Stats. 18.50. p. 254, §9). and then read: "The husband has the management and control of the community property, with the like absolute power of disposition (other than testamentary) as he has of his separate estate." The code commissioners say: "The following section had a place in first draft. It is retained in the form of a note. The legislature can re- store if desirable: 'Sec. — . Tn cases of fraudulent tranpfer". p-ross mismanagement or profligate waste of common property by the hus- band, the wife may have her action in the proper court, and is, upon proper showing, entitled to a juflgment — 1. Securing to her the entire management and absolute power of disposition of it, in like manner and extent as the husband had before the commencement of the action; or. 2. Appointinoc a trustee to manage it. as the court may direct; or, 8. Equitably dividing the nroperty, making the part awarded to each their separate property.' This is a new section, and may seem at first- like an alarming innovation. There is a strange inconsistency in the existing law: 1. The property is made common between the husband and wife. They have a common interest in it. 2. The husband can sell it, give it away or willfully destroy it — exercise all the powers of absolute, exclusive ownership, and the wife has no remedy except bv divorce or his death. She must witness the passing away, through profligacv, of a family competence in which she has half-interest — a right without a remedy. This section is intended to secure the remedy in grievous cases only." ?. Amended by Stats. 1891, p. 425, adding the first proviso. 3. Amended by Stats. 1901, p. 598, adding the second proviso. §173. Curtesy and dow^ernot allowed. No estate is allowed the husband as tenant by curtesy upon the death of his wife, nor is any estate in dower allotted to the wife upon the death of her husband. Leeislation § 173. Enacted March 21, 1872, based on Stats. 1850, p. 254, § 10. § 174. Support of wife. If the husband neglect to make adequate provision for the support of his wife, except in the cases mentioned in the next section, any other person may, in good faith, supply her with articles necessary for her support, § 174 CIVIL CODE. 56 position, other than testamentary, as he has of his separate estate ; provided, however, that he cannot make a gift of such community property, or convey the same without a valuable consideration, unless the wife, in writing, consent thereto ; and provided also, that no sale, conveyance or encumbrance of the furniture, furnishings and fittings of the home, or of the clothing and wearing apparel of the wife or minor chil- dren, which is community property, shall be made without the written consent of the wife. [Amendment approved 1901 ; Stats. 1901, p. 598.] Testamentary control over community property: See post, §§ 1401. 1402, which prescribo the course of descent of common property, and limit the power of testamentary disposition over the same. Community property. Generally: See ante. § 164. Dissolution of the community by divorce: See ante, §§ 147, 148. Legislation § 172. 1. Enacted March 21. 1872 fbased on Stats. 18-50. p. 254, § 9). and then read: "The husband has the management and control of the community property, with the like absolute power of disposition (other than testamentary) as he has of his separate estate." The code commissioners say: "The following section had a place in first draft. It is retained in the form of a note. The legislature can re- store if desirable: 'Sec. — . Tn cases of fraudulent tranpfer". prnss mismanagement or profligate waste of common property by the hus- band, the wife may have her action in the proper court, and is, upon proper showing, entitled to a judgment — 1. Securing to her the entire management and absolute power of disposition of it, in like manner and extent as the husband had before the commencement of the action; or. 2. Appointing a trustee to manage it. as the court may direct; or, .^. Equitably dividing the Droperty, making the part awarded to each their separate property.' This is a new section, and may seem at first like an alarming innovation. There is a strange inconsistency in the existing law: 1. The property is made common between the husband and wife. They have a common interest in it. 2. The husband can sell it, give it away or willfully destroy it — exercise all the powers of absolute, exclusive ownership, and the wife has no remedy except bv divorce or his death. She must witness the passing away, through profligacv, of a family competence in which she has half-interest — a right without a remedy. This section is intended to secure the remedj- in grievous cases only." ?. Amended by Stats. 1891, p. 425, adding the first proviso. 3. Amended by Stats. 1901, p. 598, adding the second proviso. § 173. Curtesy and dov^^er not allov^ed. No estate is allowed the husband as tenant by curtesy upon the death of his wife, nor is any estate in dower allotted to the wife upon the death of her husband. Legislation § 173. Enacted March 21, 1872, based on Stats. ISoO, p. 254, § 10. § 174. Support of wife. If the husband neglect to make adequate provision for the support of his wife, except in the eases mentioned in the next section, any other person may, in good faith, supply her with articles necessary for her support, 172 Management, Control and Disposition of Community Per- sonal Property. The husband has the management and control of the community [personal] property, with like absolute power of disposition, other than testamentary, as he has of his separate estate- provided, however, that he can not malce a gift of su'ch communitv [personal] property, or [dispose of] the same without a valuable consideration, [or sell, convey, or encumber the furni- ture, furnishings, or fittings of the home, or the clothing or wear- ing apparel of the wife or minor children that is community, with- out the written consent of the wife.] Un effect 9'^^^^^-.*™;- J"^ after April 27, IftlT. Stats. 1917. Chap. 583.) C.v. Code, 1917. 172a. [New.] Management and Control of Community Real Property. The husband has the management and control of the community real property but the wife must join with him in exe- cuting any insrtrument by which such community real property or any interest therein is leased for a longer period than one year, or is sold, conveyed, or encumbered; provided, however, that the sole lease, contract, mortgage or deed of the hu.sband, holding the record title to community real property, to a lessee, purchaser or encumbrancer, in good faith without knowledge of the marriage relation shall be presumed to be valid; but no action to avoid such instrument shall be commenced after the expiration of one year from the filing for record of such instrument in the recorder's office in the county in which the land is situate. (In effect 90 days from and after April 27, 1917. Stats. 1917, Chap. 583.) Civ. Code, 1917. 172b. [New.] Sale, Conveyance, Mortgage or Lease of Com- 172b. Sale, Conveyance, Mortgage or Lease of Community Property Where One Spouse Adjudged Insane or Incompetent. Where real property is held as community property, and either the husband or wife has been adjudged insane [or incompetent,! the husband or wife not insane [or incompetent] may petition the superior court of the county in which such community real property is situated for an order permitting the husband or wife, not insane [or incompetent,] to sell and convey, mortgage or lease, such community real property to raise moneys to provide for the support and care either of the sane or insane [or incom- petent] spouse, or of their minor children, and also to raise moneys for the payment of the necessary taxes, interest and other charges incurred and required to be paid for the protec- tion and preservation of the community estate [and whenever it appears it is for the advantage, benefit and best interests of the spouses, the estate or their dependents.] Such petition must be subscribed and sworn to by the applicant, setting forth the name and age of the insane [or incompetent] husband or wdfe; a description of the premises constituting the community real prop- erty petitioned to be sold, mortgaged, or leased; the value of same; the county in w^hich it is situated; and such facts, in addi- tion to the insanity [or incompetency] of the husband or wife, relating to the circumstances and necessities of the applicant and his or her family as he or she may rely upon in support of the petition. (In effect 90. days from and after April 29, 1921. Stats. 1921, Chap. 95.) Civ. Code, 1921. 172c. Notice of Application for Order, How Given; Public Administrator to Be Served, When. Notice of the application for such order must be given by pubUcation of the same, in a news- paper published in the county in which such community real property is situated, if there is a newspaper published therein, once each week for three successive weeks, prior to the hearing of such application, and a copy of such notice must also be per- sonally served upon the nearest relative of such insane [or In- competent] husband or wife, resident in this state, at least three weeks prior to such application; and in case there is no such relative known to the applicant, a copy of such notice must be served upon the public administrator of the county in which such community real property is situated; and in such case it is the duty of such public administrator to appear and represent the interest of such insane [or incompetent] person. For all such services rendered by the public administrator he must be allowed a reasonable fee, to be fixed by the court, and the same must be taxed as costs against the person making application for the order herein provided for. (In effect 90 days from and after April 29, 1921. Stats. 1921, Chap. 95.) Civ. Code, 1921. Anvil 22, 1910. Stais. i;'^.., ^ 172d. Duty of Court to iVIake Order. If it appears to the court that such husband or wife has been adjudged insane [or incompetent], the court may make an order permitting the hus- band or wife, not insane [or incompetent], to sell and convey, or mortgage or lease such community real property, and there- after any sale, conveyance, mortgage or lease, made in pursu- ance of such order is as valid and effectual as if the property affected thereby was the absolute property of the person making such sale, conveyance, mortgage or lease. If a sale is ordered It must be reported to and confirmed by the court. (In effect 90 days from and after April 29, 1921. Stats. 1921. Chap. 95.) CIv. Code, 1921. 57 HUSBAND AND WIFE. § 179 and recover the reasonable value thereof from the husband. [Amendment approved 1874; Code Amdts. 1873-74, p. 193.] Legislation § 174. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 84), and then read: "If the husband neglects to make adequate provision for the support of his wife, any other person may, in good faith, supply her with articles necessary for her support, and recover the reasonable value thereof from the husband." 2. Amended by Code Amdts. 1873-74, p. 193. § 175. Husband not liable when abandoned by wife. A hus- band abandoned by his wife is not liable for her support until she offers to return, unless she was justified, by his miscon- duct, in abandoning him ; nor is he liable for her support when she is living separate from him, by agreement, unless such support is stipulated in the agreement. [Amendment ap- proved 1874; Code Amdts. 1873-74, p. 193.] Legislation § 175. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 85), and then read: "A husband abandoned by his wife is not liable for her support until she offers to return, unless she was justified, by his misconduct, in abandoning him." 2. Amended by Code Amdts. 1873-74, p. 193. § 176. When wife must support husband. The wife must support the husband, when he has not deserted her, out of her separate property, when he has no separate property, and there is no community property, and he is unable, from in- firmity, to support himself. [Amendment approved 1874; Code Amdts. 1873^74, p. 194.] Mutual obligations of support: See ante, § 155. Legislation § 176. 1. Enacted March 21, 1872, and then read: "The wife must support the husband out of her separate property when he has no separate property and they no community property, and he from infirmity is not able or competent to support himself." 2. Amended by Code Amdts. 1873-74, p. 194. § 177. Rights of husband and wife governed by what. The property rights of husband and wife are governed by this chapter, unless there is a marriage settlement containing stipulations contrary thereto. Legislation § 177. Enacted March 21, 1872; based on Stats. 1850, p. 254, § 14. §178. Marriage settlement contracts, how executed. All contracts for marriage settlements must be in writing, and exe- cuted and acknowledged or proved in like manner as a grant of land is required to be executed and acknowledged or proved. Legislation § 178. Enacted March 21, 1872; based on Stats. 1850, p. 254, § 16. § 179. To be acknowledged and recorded. When such con- tract is acknowledged or proved, it must be recorded in the § 181 CIVIL CODE. 58 office of the recorder of every county in which any real estate may be situated which is granted or affected by such contract. Legislation § 179. Enacted March 21, 1872; based on Stats. 1850, p. 254, § 17. § 180. Effect of recording. The recording or non-recording of such contract has a like effect as the recording or non- recording of a grant of real property. Legislation § 180. Enacted March 21, 1872; based on Stats. 1850, p. 254, § IS. § 181. Minors may make marriage settlements. A minor capable of contracting marriage may make a valid marriage settlement. Legislation § 181. Enacted March 21, 1872; based on Stats. 1850, p. 254, § 20. TITLE II. Parent and Child. Chapter I. Children by Birth. §§ 193-215. II. Children by Adoption. §§ 221-230. CHAPTER I. Children by Birth. § 193. Legitimacy of chiWren born in wedlock. § 194. Children after dissolution of marriage. § 195. Who may dispute the legitimacy of a child. § 196. Obligation of parents for the support and education of their chil- dren. § 196a. Support of illegitimate child. § 197. Custody of minors. § 198. Husband and wife living separate, neither to have superior right to custody of children. § 199. When husband or wife may bring action for the exclusive control of children. Decree in such cases. § 200. Custody of an illegitimate child. § 201. Allowance to parent. § 202. Parent cannot control the property of child. § 203. Eemedy for parental abuse. § 204. W^hen parental authority ceases. § 205. Eemedy when a parent dies without providing for the support of his child. § 206. Reciprocal duties of parents and children in maintaining each other. § 207. W^hen a parent is liable for necessaries supplied to a child. § 208. When a parent is not liable for support furnished his child. § 209. Husband not bound for the support of his wife's children by a former marriage. § 210. Compensatiob and support of adult child. § 211. Parent may relinquish services and custody of child. § 212. Wages of minors. 59 CHILDREN BY BIRTS. § 196 § 213. -Right of parent to determine the residence of child. § 214. Wife in certain cases may obtain custody of minor children. § 215. When child becomes legitimate. § 193. Legitimacy of children born in wedlock. All children born in wedlock are presumed to be legitimate. Legitimacy of children of nullified marriage: See ante, § 84. Legitimacy in cases of adultery: See ante, §§ 144, 145. Rebutting presumption of legitimacy: Post, § 195. Legitimating children by marriage of parents: See post, § 215. Father legitimating child by acknowledging it: Post, § 230; and com- pare post, § 1387. Mother entitled to custody of illegitimate unmarried minor: See post, §200. Illegitimate's earnings: See post, § 200. Illegitimates, heirs to whom: Post, § 1387. Mother succeeds to estate of illegitimate: Post, § 1388. Presumption of legitimacy of children: See Code of Civil Procedure, § 1962, subd. 5. Legislation § 193. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 86. 2. Amendment by Stats. 1901, p. 339; unconstitutional. See note, § 4, ante. § 194. Children after dissolution of marriage. All children of a woman who has been married, born within ten months after the dissolution of the marriage, are presumed to be legitimate children of that marriage. [Amendment approved 1874; Code Amdts. 1873-74, p. 194.] Legislation § 194. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 87. 2, Amended by Code Amdts. 1873-74, p. 194, (1) inserting "children of that marriage" after "legitimate," and (2) omitting the final sen- tence, reading, "But if during such period she marries again, and after- wards has a child, it is presumed to be her legitimate ofi:spring by the second husband." § 195. Who may dispute the legitimacy of a child. The pre- sumption of legitimacy can be disputed only by the husband or wife, or the descendant of one or both of them. Ille- gitimacy, in such case, may be proved like any other fact. Legislation § 195. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 88. § 196. Obligation of parents for the support and education of their children. The parent entitled to the custody of a child must give him support and education suitable to his circum- stances. If the support and education which the father of a legitimate child is able to give are inadequate, the mother must assist him to the extent of her ability. Action to enforce parental duty: Post, § 203. Third person supplying necessaries: Post, §§ 207, 208. Willful failure to support child is a misdemeanor: Pen. Code, § 270. § 199 CIVIL CODE. 60 Deserting child is a felony: Pen. Code, § 271. Disposing of child for mendicant purposes: See Pen. Code, § 272. Supporting poor relatives: See post, § 206. Injury to child, action for: See Code Civ. Proc, § 376. Legislation § 196. Euaeted March 21, 1872; based on Field's Draft, X. Y. Civ. Code, § S9. § 196a. Support of illegitimate child. The father as well as the mother, of an illegitimate child must give him support and education suitable to his circumstances. A civil suit to enforce such obligations may be maintained in behalf of a minor illegitimate child, by his mother or guardian, and in such action the court shall have power to order and enforce performance thereof, the same as under sections 138, 139 and 140 of the Civil Code, in a suit for divorce by a wife. Legislation § 196a. Added by Stats. 1913, p. 218. § 197. Custody of minors. The father and mother of a legit- imate unmarried minor child are equally entitled to its cus- tody, services and earnings. If either the father or mother be dead or unable or refuse to take the custody or has abandoned his or her family, the other is entitled to its custody, services and earnings. [Amendment approved 1913; Stats. 1913, p. 52.] Relinquishing right to child's earnings: Post, § 211. Property of child. Parent, as such, has no control of: Post, § 202. Guardian, appointment of: See post, §§ 241 et seq. Legislation § 197. 1. Enacted March 21, 1872 (based on Field's Draft, X. Y. Civ. Code, § 90), and then read: "The father of a legitimate un- married minor is entitled to its custody, services, and earnings; but he cannot transfer such custody or services to any other person, except the mother, without her written consent, if she is living and capable of consent. If the father is dead, or is unable, or refuses to take the custody, or has abandoned his family, the mother is entitled thereto." 2. Amended by Code Amdts. 1873-74, p. 194, to read: "The father of a legitimate unmarried minor child is entitled to its custody, ser- vices, and earnings; but he cannot transfer such custody or services to any other person, except the mother, without her written consent, unless she has deserted him, or is living separate from him by agree- ment. If the father be dead, or be unable, or refuse to take the cus- tody, or has abandoned his family, the mother is entitled thereto." 3. Amended by Stats. 1913, p. 52. § 198. Husband and wife living separate, neither to have superior right to custody of children. The husband and father, as such, has no rights superior to those of the wife and mother, in regard to the care, custody, education, and control of the children of the marriage, while such husband and wife live separate and apart from each other. Custody of child in divorce causes: See ante, § 138. Legislation § 198. Enacted March 21, 1872. § 199. When husband or w^ife may bring action for the ex- clusive control of children. Decree in such cases. Without ap- 61 chHjDren by birth. § 203 plication for a divorce, the husband or the wife may bring an action for the exclusive control of the children "of the marriage; and the court may. during the pendency of such action, or at the final hearing thereof, dr afterwards, make such order or decree in regard to the support, care, custody, education, and control of the children of the marriage, as may be just, and in accordance with the natural rights of the parents and the best interests of the children, and may at any time thereafter amend, vary, or modify such order or decree, as the natural rights and the interests of the parties, including the children, may require. Compare with § 214, infra. Control of children, pending divorce proceedings: See ante, § 13S. Awarding custody of child. Considerations that should govern court: Post, § 246. Legislation § 199. Enacted March 21, 1872. §200. Custody of an illegitimate child. The mother of an illegitimate unmarried minor is entitled to its custody, ser- vices, and earnings. Mother the heir of illegitimate child: Post. § 1388. Legislation § 200. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 91. §201. Allowance to parent. The proper court may direct an allowance to be made to the parent of a child, out of its property, for its past or future support and education, on such conditions as may be proper, whenever such direction is for its benefit. Legislation § 201. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 92. § 202. Parent cannot control the property of child. The parent, as such, has no control over the property of the child. Guardian of minor's estate: See post, §§ 241 et seq. Legislation § 202. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 93. § 203. Remedy for parental abuse. The abuse of parental authority is the subject of judicial cognizance in a civil ac- tion brought by the child, or by its relative within the third degree, or by the supervisors of the county where the child resides; and when the abuse is established, the child may be freed from the dominion of the parent, and the duty of sup- port and education enforced. • Parental duty: See ante. § 196. Omission to supply child with necessaries, misdemeanor. Desertion punished by imprisonment: Pen. Code, §§ 270, 271. Legislation § 203. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 94. § 208 CIVIL CODE. 62 § 204. When parental authority ceases. The authority of a parent ceases : 1. Upon the appointment, by a court, of a guardian of the person of a child ; 2. Upon the marriage of the child; or, 3. Upon its attaining majority. Legislation § 204. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 95. § 205. Remedy when a parent dies without providing for the support of his child. If a parent chargeable with the sup- port of a child dies, leaving it chargeable to the county, and leaving an estate sufficient for its support, the supervisors of the county may claim provision for its support from the par- ent's estate by civil action, and for this purpose may have the same remedies as any creditors against that estate, and against the heirs, devisees, and next of kin of the parent. Legislation § 205. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 96. § 206. Reciprocal duties of parents and children in main- taining each other. It is the duty of the father, the mother, and the children of any poor person Avho is unable to maintain himself by work, to maintain such person to the extent of their ability. The promise of an adult child to pay for neces- saries previously furnished to such parent is binding. Mother supporting children: Ante, § 196. Wife supporting husband: Ante, § 176. Legislation § 206. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 97. § 207. When a parent is liable for necessaries supplied to a child. If a parent neglects to provide articles necessary for his child Avho is under his charge, according to his circum- stances, a third person may in good faith supply such neces- saries, and recover the reasonable value thereof from the parent. Infant liable on contract for necessaries: See ante, § 36. Legislation § 207. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 98. § 208. When a parent is not liable for support furnished his child. 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. Legislation § 208. Enacted March 21, 1872; based on Field's Draft, N.- Y. Civ. Code, § 99. 63 CHILDREN BY BIRTH. § 214 § 209. Husband not bound for the support of his wife's children by a former marriage. A husband is not bound to maintain his wife's children by a former husband ; but if he receives them into his family and supports them, it is pre- sumed that he does so as a parent, and, where such is the case, they are not liable to him for their support, nor he to them for their services. Iiegislation § 209. Enacted Marcli 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 100. § 210. Compensation and support of adult child. Where a child, after attaining majority, continues to serve and to be supported by the parent, neither party is entitled to com- pensation, in the absence of an agreement therefor. Legislation § 210. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 101. § 211. Parent may relinquish services and custody of child. The parent, whether solvent or insolvent, may relinquish to the child the right of controlling him and receiving his earn- ings. Abandonment by the parent is presumptive evidence of such relinquishment. Legislation § 211. Enacted Marcli 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 102. § 212. Wages of minors. The wages of a minor employed in service may be paid to him, until the parent or guardian entitled thereto gives the employer notice that he claims such wages. [Amendment approved 1874; Code Aradts. 1873-74, p. 194.] Earnings of minor: See ante, § 169. Legislation § 212. 1. Enacted March 21, 1872 (based on Field's Draf c, N. Y. Civ. Code, § 103), and then read: "The wages of a minor em- ployed in service may be paid to him, unless, within thirty days after the commencement of the service, the parent or guardian entitled thereto gives the employer notice that he claims such wages." 2. Amended by Code Amdts. 1873-74, p. 194. § 213. Right of parent to determine the residence of child. A parent entitled to the custody of a child has a right to change his residence, subject to the power of the proper court to restrain a removal which would prejudice the rights or wel- fare of the child. Residence. Husband's right to change: See ante, § 156. Legislation § 213. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 104. § 214. Wife in certain cases may obtain custody of minor children. When a husband and wife live in a state of separa- tion, without being divorced, any court of competent juris- § 221 CIVIL CODE. 64 diction, upon application of either, if an inhabitant of this state, may inquire into the custody of any unmarried minor child of the marriasre, 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 two hundred and forty-six. Custody of child without divorce of parents: See ante, § 199. Custody of child pending divorce proceedings: See ante, § 138. Custody when parents separated: See ante, § 214. Legislation § 214. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 106. § 215. When child becomes legitimate. A child born before wedlock becomes legitimate by the subsequent marriage of its parents. Legislation § 215. Added by Code Amdts. 1873-74, p. 195. CHAPTER IT. Children by Adoption. § 221. Child may be adopted. § 222. Who may adopt. § 223. Consent of wife necessary. § 224. Consent to adoption of children. .Abandoned child. Child in orphan osvlnni. § 22.5. Consent of child. § 226. Proceedings on adoption. § 227. Tudge's order; where filed. § 228. Effect of adoption. § 229. Effect on former relations of child. § 230. Adoption of illegitimate child. §221. Child mav be adopted. Any minor cbild may be adopted by any adult person, in the cases and sub.ieet to the rules prescribed in this chapter. Legislation § 221. Enacted March 21. 1872: based on Field's Draft, N. Y. Civ. Code, §107; Stats. 1869-70. p. 530, § 1. The code commis- sioners say: "The total absence of any provision for the adoption of children is one of the most remarl\able defects of onr law. Thousands of children are actually, though not legally, adopted every year; yet there is no method by which the adopting parents' can secure the chil- dren to themselves, except by a fictitious apprenticeship, a form which, when applied to children in the cradle, becomes absurd and repulsive. It is. indeed, so inappropriate in every case that it is rarely resorted to. The consequence is, almost invariably, that if the real parents of the child live to see it grow to an age of usefulness and intelligence thev are certain to attempt to reclaim it, sometimes through the mere selfishness of natural affection, but more commonly from base and sordid motives. The chances of an adopting parent for the retention nf the child upon which, perhaps, his whole heart is centered, are there- fore in the inverse ratio to the degree of his benevolence in its selec- tion, and of liis care and affection in its training. Benevolence dic- tates a choice from among children whose parents are least able or 01 224. Consent to Adoption of Children, Abandoned Child; Child In Orphan Asylum. A legitimate child cannot be adopted with- out the consent of Its parents if living, nor an illegitimate child without the consent of its mother if living, except that consent Is not necessary in the following cases to wit: 1. From a father or mother if deprived of civil rights. 2. From a father or mother adjudged gxiilty of adultery or cruelty and for either cause divorced. 3. From a father or mother who has been judicially deprived of the custody and control of such child on the ground of aban- donment, cruelty, neglect or habitual [Intemperance, by] order of the juvenile court declaring said child to be free from the cus- tody and control of its parents as provided in the juvenile court law of the State of California, approved June 5, 1915, and any act or acts superseding or amending same. [ 1 4. From a father or mother who has been declared either feeble-minded or insane by the state commission in lunacy or by three competent persons appointed by said commission; pro- vided, that if so declared insane, said father or mother shall have subsequently been determined to be incurably insane by the superior court of the county where he or she resides. 5. From a father or mother of any child deserted by its parents without provision for their identification. 6. From a father or mother of any child relinquished by its parent or parents for the purpose of adoption expressed in writ- ing signed and acknowledged by such parent or parents before an officer authorized to take acknowledgments, or signed by such parent or parents before two subscribing witnesses and acknowl- edged by such parent or parents before the secretary of any organization or society engaged in the work of placing dependent or deserted children into homes in this state, which organiza- tion or society has obtained a permit therefor, duly executed in writing, from the state board of charities and corrections, and when a copy of this relinquishment shall have been filed with the state board of charities and corrections prior to the com- mencement of any adoption proceedings affecting such child. [Such rellquishment, when reciting that the person making it Is entitled to the sole custody of the minor, shall, when duly acknowledged before such officer or secretary, be prima facie evi- dence of the right of the person making it to the sole custody of the child and such persons sole right to relinquish.] Any child, the consent of whose parents is not necessary for its adoption within the meaning of this section maintained by or in the custody of any orphan asylum within this state, any charitable organization or society receiving state aid or receiving commitments from the juvenile court, may be adopted with the consent of the president of such orphan asylum, charitable organi- zation or society, or with the consent of such officer as may be authorized by the directors or managers of such asylum, organi- zation or society to consent to adoption in such cases. Any orphan child for -whose support no provision has been made by any person for a period of one year; but who has been main- tained during said year, by or in the custody of any orphan asy- lum within this state, any charitable organization or society receiving state aid or receiving commitments from the juvenile court may be adopted with the consent of the president of such orphan asylum, charitable organization or society or with the consent of such officer as may be authorized by the directors oi managers of such asylum, organization or society to consent tc adoption in such cases. (In effect 90 days from and after April 29, 1921. Stats. 1921, Chap. 229.) Civ. Code, 1921, II 224. Consent to Adoption of Children; Abando-ned Child; Child in Orphan Asylum. A legitimate 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 not necessary [in the following cases, to wit:] £1.] From a father or mother [if! deprived of civil rights. [2. From a father or mother] adjudged guilty of adultery or cruelty and for either cause divorced. [3. From a father or mother who has been jiidicially deprived of the custody and control of such child on the ground of aban- donment, cruelty, neglect or habitual intemperance, either by order of the juvenile court declaring said child to- be free from the custody and control of its parents as provided in the juvenile court law of the State of California, approved June 5, 1915, and any act or acts superseding or amending same, or by order of the Juvenile court of the county, where such child was left in the care and custody of another by its parent or parents, without any provisions for its support, for the period of one year, determining such child to be an abandoned child as defined in said juvenile court law; provided, however, that said juvenile court shall never make sich order of abandonment without first givin'3 notice of said abandonment proceeding by personal service of citation or other court process on the parent or pare-its or person having the custody of such child residing within the state, if their residence Is known, and also such other or further notice to said parent or parents or person having the custody of such chid, or other person or persons as the court may re- quire, or by order of any other court of competent jurisdict'on. [4. From a father or mother who has been declared either feeble-minded or insane by the state commission in lunacy or by three competent persons appointed by said comm'sp'on; pro- vided, that if so declared insane, said father or mother shall have subsequently been determined to be incurably insane by the superior court of the county where he or she resides. [From a father or mother of any child deserted by its parents w thout prevision for thoir idenfficat'on. (From a father or mother of any child relinquished by its parent or parents for the purpose of adoption expressed in writ- In) signed and acknowledged by such parent or parents before an officer authorized to take acknowledgments, or signed by svch parent or parents before two subscribing witnesses and ackrowledged by such parent or parents before the secretary of any organization or society engaged in the work of placing d^prndent or deserted children into homes In this state, which organization or society has obtained a permit therefor, duly executed in writing, from the state board of charities and cor- rections, and when a copy of this relinquishment shall have been filed with the state board of charities and corrections prior to the commencement of any adoption proceedings affect- ing such child. I Any child, the consent of whose parents Is not necessary for its adoption] within the meaning- of this section maintained by or in tlie custody of any orplian asylum within this state, any chai-itable organization or soeietj^ receiving state aid or receiv- ing commitments from the juvenile court, may be adopted with the consent of the [president] of such orphan asylum, charitable organization or society, [or with the consent o-f such officer as may be authorized by the directors or managers of such asylum, organization or society to consent to ado-ption in such cases.] Any orphan child for whose support no provision has been made by any person for a period of one year, but who has been maintained during said year, by or in the custody of any orphan asylum within this state, any charitable organization or society receiving state aid or receiving commitmentsi from the juvenile court may be adopted with the consent of the [president] of such orphan asylum, charitable organization or society [or with the consent of such officer as may be authorized by the directors or managers of such asylum, organizaticn or society to consent to adoption in such cases.] (In effect 90 days from and aftei April 27, 1017. Stats. 1017, Chap. 55S.) Civ. Code, 1917. 65 CHILDREN BY ADOPTION. § 224 willing to take care of them. To relieve a child from a cruel and heartless parent is a greater mercy than to take even an orphan. Yet these are the parents who are, of all others, most likely to reclaim the child as soon as any money can be made out of it. Affection will give the child such a training as will develop its beauty and intelligence to the highest degree. Yet every grace of the child is but a premium upon the extortion of its heartless parents. This is not mere theory. Facts within the knowledge of almost every one justify these state- ments. There are very many childless parents who would gladly adopt children, but for their well-founded fears that they could never hold them securely." § 222. Who may adopt. The person adopting a child must be at least ten years older than the person adopted. [Amend- ment approved 1874; Code Amdts. 1873-74, p. 195.] Legislation § 222. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 108; Stats. 1869-70, p. 530, § 1), and then read: "The person adopting a child must be at least fifteen years older than the person adopted, and must have been married, and if a woman, must he a widow, or be lawfully divorced from her husband without her fault." 2. Amended by Code Amdts. 1873-74, p. 19.5. § 223. Consent of wife necessary. A married man, not lawfully separated from his wife, cannot adopt a child with- out the consent of his wife, nor can a married woman, not thus separated from her husband, without his consent, pro- vided the husband or wife, not consenting, is capable of giv- ing such consent. [Amendment approved 1874; Code Amdts. 1873-74, p. 195.] Legislation § 223. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, §109; Stats. 1869-70, p. 5.30, § 2), and then read: "A married man, not lawfully separated from his wife, cannot adopt a child without the consent of his wife." 2. Amended by Code Amdts. 1873-74, p. 195. § 224. Consent to adoption of children. Abandoned child. Child in orphan asylum. A legitimate child cannot be adopted without the consent of its parents, if living; nor an illegiti- mate child without the consent of its mother, if living; ex- cept that consent is not necessary from a father or mother deprived of civil rights, or adjudged guilty of adultery or cruelty, and for either cause divorced, or adjudged to be habitually intemperate in the use of intoxicants, or who has- been judicially deprived of the custody of the child on ac- count of cruelty or neglect. Neither is consent of any parent necessary in case of any abandoned child. Any child deserted by its parents without provision for their identification, or relinquished by its parent or parents for the purpose of adop- tion expressed in writing signed and acknowledged by such parent or parents before an officer authorized to take ac- Civ. Code — 5 § 224 CIVIL CODE. 66 knowledgments, or before the secretary of any organization or society engaged in the work of placing dependent or de- serted children into homes in this state, which organization or society has obtained a permit therefor, duly executed in writ- ing, from the state board of charities and corrections, shall from the date of such act of desertion or of such relinquish- ment be deemed to be an abandoned child within the meaning of .this section. Any child left in the care and custody of an- other by its parent or parents, without any provision for its support, for the period of one year, may after such notice to the parent or parents residing within the state and to such other relatives of said child residing within the county as the court shall require, be determined by order of the juvenile court of the county in which said child was so left to be an abandoned child within the terms of this section. Any aban- doned child within the meaning of this section, or any child whose parent or parents have been judicially deprived of its custody on account of cruelty or neglect, maintained by or in the custody of any orphan asylum within this state, any charitable organization or society receiving state aid or re- ceiving commitments from the juvenile court, may be adopted with the consent of the managers of such orphan asylum, charitable organization or society. Any orphan child for whose support no provision has been made by any person for a period of one year, but who has been maintained during said year by or in the custody of any orphan asylum within this state, any charitable organization or society receiving state aid or receiving commitments from the juvenile court, may be adopted with the consent of the managers of such orphan asylum, charitable organization or society. [Amendment ap- proved 1913; Stats. 1913, p. 95.] Legislation § 224. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, §110; Stats. 1869-70, p. 530, § 3), and then read: "A legitimate child cannot be adopted without the consent of its parents, if living, nor an illegitimate child without the consent of its mother, if living, except that consent is not necessary from a father or mother deprived of civil rights, or adjudged guilty of adultery, or of cruelty, and for either cause divorced, or adjudged to be a haldtual drunkard, or who has been judicially deprived of the custody of the child on account of cruelty or neglect." 2. Amended by Stats. 1891, p. 24, adding "neither is the consent of any one necessary in case of any abandoned child." 3. Amended by Stats. 1893, p. 112, (1) omitting the words inserted by the amendment of 1891, and (2) adding "provided, however, that where any such child, being a half-orphan, and kept and maintained within any orphan asylum in this state for more than two years, may be adopted with the consent of the managers of such orphans' home, without the consent of the parent, unless such parent has paid toward the expenses of the maintenance of such half-orphan at least a reason- able sum during the said time, if able so to do. And where the parent 67 CHILDREN BY ADOPTION. § 226 is a non-resident of this state, sueli child may be adopted with the con- sent of the managers of such home, whenever it has been left by its parent in such home for more than one year, whether the parent has contributed anything to its support or not, and the consent of the parent of such half-orphan is not necessary to its adoption, whenever the managers of the home are authorized to give such consent, as herein provided." 4. Amended by Stats. 1895, p. 39, inserting "jieither is the consent of any one necessary in case of any abandoned child," after "cruelty or neglect." 5. Amendment by Stats. 1901, p. 339; unconstitutional. See note, § 4, ante. 6. Amended by Stats. 1903, p. 114, adding "Any child deserted by both parents, or left in the care and custody of another by its parent or parents, without any agreement or provision for its support, for the period of one year, is deemed to be an abandoned child within the meaning of this section." 7. Amended by Stats. 1907, p. 331, to. read: "A legitimate child can- not be adopted without the consent of its parents, if living; nor an illegitimate child without the consent of its mother, if living; except, that consent is not necessary from a father or mother deprived of civil rights or adjudged guilty of adultery or cruelty, and for either cause divorced, or adjudged to be habitually intemperate in the use of in- toxicants, or who has been judicially deprived of the custody of the child on account of cruelty or neglect. Neither is consent of any parent necessary in case of any abandoned child; provided, however, that anj^ such child, being a half-orphan, and kept and maintained in any orphan asylum in this state for more than two years, may be adopted, with the consent of the manager of such orphan's home with- out the consent of the parent unless such parent has paid toward the expenses of maintenance of such half-orphan at least a reasonable sum during the said time, if able to do so. Any child deserted by both parents or left in the care and custody of another by its parent or parents, without any agreement or provision for its support, for the period of one year, is deemed to be an abandoned child within the meaning of this section and where the i:iarent is a non-resident of this state such child may be adopted with the consent of the managers of such home whenever it has been left in such home for more than one year; or any abandoned child, within the meaning of this section, if left in the care and custody of another person for one year or more, may, with the consent of the district attoruej^ of the county wherein the person applying to adopt such child is a resident, be adopted by such person." 8. Amended by Stats. 1911, p. 899, and as then enacted was the same as the amendment of 1915, except that in the amiendment of 1915, in the third sentence, the words beginning with "or before the secretary" and down to and including the words "state board of charities and corrections," were added. 9. Amended by Stats. 1913, p. 95. § 225. Consent of child. The consent of a child, ^if over the age of twelve years, is necessary to its adoption. Legislation § 225. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 111; Stats. 1869-70, p. 530, § 3. § 226. Proceeding's on adoption. Any person desiring to adopt a child may, for that purpose, petition the superior court § 227 CIVIL CODE. 68 of the county in which the petitioner resides. The person adopting a child, and the child adopted, and the other persons, if within or residents of said county, whose consent is neces- sary, must appear before the court, and the necessary consent must thereupon be signed and an agreement executed by the person adopting, to the effect that the child shall be adopted and treated in all respects as his own lawful child should be treated. If the persons Avhose consent is necessary are not within or are not residents of said county, then their written consent, duly proved or acknowledged, according to sections eleven hundred and eighty-two and eleven hundred and eighty-three, must be filed in said superior court at the time of the application for adoption. [Amendment approved 1907; Stats. 1907, p. 329.] Legislation § 226. 1. Enacted March 21. 1872 (based on Field's Draft, N. Y. Civ. Code, § 112; Stats. 1869-70, p. .530, § 4), and then read: "The person adopting a child, and the child adopted, and the other persons whose consent is necessary, must appear before the county judge of the county where the person adopting resides, and the necessary con- sent 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 respects as his own lawful child should be treated." 2. Amended by Code Amdts. 1875-76, p. 70, (1) in first sentence, adding, after "other persons," "if within or residents of this state"; and (2) .adding a second sentence, reading, "If the persons whose con- sent is necessary are not within, or are not residents of this state, then their written consent, duly proved or acknowledged according to sections eleven hundred and eighty-two and eleven hundred and eighty- three of this code, shall be filed in said county court at the time of the application for adoption." 3. Amended by Code Amdts. 1880, p. 4, substituting (1) "judge of the superior court" for "county judge," and (2) "superior" for "county" before "court." 4. Amendment by Stats. 1901, p. 339; unconstitutional. See note, § 4, ante. 5. Amended by Stats. 1905, p. 55, to read as at present, except for the changes made in 1907; the code commissioner saying, "The first two sentences of this section have been recast with the design of making the proceedings for adoption judicial, thereby supporting it by the same intendments which are indulged in favor of other proceed- ings conducted in courts of record." 6. Amended by Stats. 1907, p. 329, substituting "said county" for "this state," in both instances. §227. Judge's order; where filed. The court must examine all persons appearing liefore it pursuant to the last section, each separately, and if satisfied that the interests of the child will be promoted by the adoption, it must make an order de- claring that the child shall thenceforth be regarded and treated in all respects as the child of the person adopting. The peti- tion, agreement, consent, and order must be filed and registered in the office of the county clerk in the same manner as papers 69 " CHILDREN BY ADOPTION. § 230 in other special proceedings. [Amendment approved 1905 ; Stats. 1905, p. 556.] Legislation § 227. 1. Enaoted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 113; Stats. 1869-70, p. 530, § 5. 2. Amendment by Stats. 1901, p. 340; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1905, p. 55G, (1) substituting (a) "court" for "judge" before "must examine," (b) "it" for "him" before "pursuant," (c) "it" for "he" before "must"; (2) adding the last sentence; the code commissioner saying, "The change consists in the substitution of the word 'court' for the word 'judge,' and in the addition of the last sen- tence, said sentence being added for the purpose of making it clear that the papers constituting part of the adoption, or of the proceeding therefor, must be filed and preserved by the clerk." § 228. Effect of adoption. A child, when adopted, may take the family name of the person adopting. After adoption, the two shall sustain towards each other the legal relation of parent and child, and have all the rights and be subject to all the duties of that relation. [Amendment approved 1874; Code Amdts. 1873-74, p. 195.] Legislation § 228. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 114; Stats. 1869-70, p. 530, § 6), and then read: "A child, when adopted, takes the name of the person adopting, and the two thenceforth sustain towards each other the legal relation of parent and child, and have all the right and are subject to all the duties of that relation." 2. Amended by Code Amdts. 1873-74, p. 195. § 229. Effect on former relations of child. The parents of an adopted child are, from the time of the adoption, relieved of all parental duties towards, and all responsibility for, the child so adopted, and have no right over it. Legislation § 229. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 115; Stats. 1869-70, p. 530, § 7. § 230. Adoption of illegitimate child. The father of an ille- gitimate child, by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such; and such child is thereupon deemed for all purposes legitimate from the time of its birth. The foregoing provisions of this chapter do not apply to such an adoption. Adoption of illegitimate children: See post, § 1387. Legislation § 230. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, §116; Stats. 1869-70, p. 530, § 9. The code commis- sioners say: "This provision, like the rest, is new, but is so manifestly just, and the present state of the law is so unmerciful to innocent chil- dren, that it is presumed that no objection will be made to the change. The seducer can make reparation to the mother of his child, though she is more or less culpable, but can at present make absolutely none § 238 CIVIL CODE. ' 70 to the child, though, perfectly innocent. By the law of France, and of almost every European nation, and in this country, b}^ the law of Maine, Vermont, Massachusetts, Connecticut, Ohio, Illinois, Indiana, Maryland, Virginia, Georgia, Alabama, Mississippi, Louisiana, Ken- tucky and Missouri, a child is legitimatized by the marriage of its parents after its birth. Privacy is an indispensable element of such an adoption. To compel the father to appear before a judge, or in any way to place the matter upon record, would brand the child with the very stigma from which a repentant father would desire to save it." TITLE III. Guardian and Ward. § 236. Guardian, what. § 237. Ward, what. § 238. Kinds of guardians. § 239. General guardian, what. § 240. Special guardian, what. §241. Guardian; appointment by will, etc. § 242. No person guardian of estate without appointment. [Kepealed.] § 243. Appointment by court. [Repealed.] § 244. Same. [Repealed.] § 245. Jurisdiction. [Repealed.] § 246. Rules for awarding custody of minor. § 247. Powers of guardian appointed by court. [Repealed.] § 248. Duties of guardian of the person. [Repealed.] § 249. Duties of guardian of estate. [Repealed.] § 250. Relation confidential. § 251. Guardian under direction of court. § 252. Death of a joint guardian. § 253. Removal of guardian. § 254. Guardian appointed by parent, how superseded. § 255. Suspension of power of guardian. § 256. Release by ward. § 257. Guardian's discharge. § 258. Insane persons. [Repealed.] § 236. Guardian, what. A guardian is a person appointed to take care of the person or property of another. Legislation § 236. Enacted March 21, 1872; based on Field's Draft, K Y. Civ. Code, § 117. § 237. Ward, what. The person over whom or over whose property a guardian is appointed, is called his ward. Legislation § 237. Enacted March 21, 1872; based on Field's Draft, K Y. Civ. Code, § 118. § 238. Kinds of guardians. Guardians are either : 1. General; or, 2. Special. Testamentary guardians: See post, § 241. Guardians ad litem: See Code Civ. Proc, §§ 372, 373. Legislation § 238. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 119. I 242. [New.] Appointment by Will or Deed of Guardians for Person and Estate of Insane or Incompetent Persons. A guardian of the persun or estate, or of both, of an insane or incompetent person may be appointed by will or deed, to take effect upon the death of the person appointing; 1. If the in!?ane or incompetent person be unmarried, or be a person whose marriage has been annulled or dissiolved by death or divorce, by the father, with the written consent of the mother, or by either parent if the other be dead or incapable of consent. 2. If tlie insane or incompetent person be married and a person who.se marriage has not been annulled or dissolved by divotce, then by the spouse. (In effect 90 days from and after April 27, l!tl7. Stats. 1917, Chap. 511.) Civ. Code, 1917. 231 [New.] Actions to Determine Parental Relation. An action may be brought for the purpose of having declared the existence or nonexistence between the parties of the relation of parent and child, by birth or adoption. (In effect 90 days from and after April 29, 1921. Stats. 1921. Chap. 136.) Cv. Code, 1921. 71 GUARDIAN AND WARD. § 243 §239. General guardian, what. A general guardian is a guardian of the person or of all the property of the ward within this state, or of both. Legislation § 239. Enacted March 21, 1872; based on Field's Draft, K Y. Civ. Code, § 120. §240. Special guardian, what. Every other is a special guardian. Legislation § 240. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 121. §241. Guardian; appointment by will, etc. A guardian of the person or estate, or of both, of a child born, or likely to be born, may be appointed by will or by deed, to take effect upon the death of the parent appointing : One. If the child be legitimate, by the father, with the writ- ten consent of the mother; or by either parent, if the other be dead or incapable of consent. Two. If the child be illegitimate, by the mother. [Amend- ment approved 1874; Code Amdts. 1873-74, p. 195.] Bond of testamentary guardian: Code Civ. Proc, § 1758. Legislation § 241. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 122. 2. Amended by Code Amdts. 1873-74, p. 195, (1) in introductory paragraph, inserting "or estate, or of both," after "person," and (2) in subd. 1, substituting "be" for "is." § 242. No person guardian of estate without appointijaent. [Repealed 1905; Stats. 1905, p. 728.] Legislation § 242. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 123. 2. Eepeal by Stats. 1901, p. 340; unconstitutional: See note, § 4, ante. 3. Kepealed by Stats. 1905, p. 728; the code commissioner saying in his note to §§ 242, 243, 244, 245, "The provisions of the above sections, relating to guardian and ward, are controlled by §§ 1747, 1758, and 1793 of the Code of Civil Procedure. They are, therefore, unnecessary and misleading." § 243. Appointment by court. [Repealed 1905 ; Stats. 1905, p. 728.] Judicial appointment of guardian of minor: See Code Civ. Proc, § 1747. Judicial appointment of guardian of insane or incompetent persons: See Code Civ. Proc, § 1763. Act providing for appointment of guardian of orphans: See post, Ap- pendix, tit. "Infancy." Legislation § 243. 1. Enacted March 21,1872. 2. Amended by Code Amdts. 1873-74, p. 196. 3. Amended by Code Amdts. 1880, p. 4. 4. Eepeal by Stats. 1901, p. 340; unconstitutional. See note, § 4, ante. 5. Eepealed by Stats. 1905, p. 728. See ante. Legislation § 242, for code commissioner's note. § 246 civrL CODE. 72 §244. Same. [Repealed 1905; Stats. 1905, p. 728.] Nonresident wards. Appointment of guardian: See Code Civ. Proc, §§ 1793 et seq. Legislation § 244. 1. Enacted March 21, 1872. 2. Amended by Code Amdts. 1880, p. 4. 3. Repeal by Stats. 1901, p. 340; unconstitutional. See note, § 4, ante. 4. Repealed by Stats. 1905, p. 728. See ante, Legislation § 242, for code commissioner's note. §245. Jurisdiction. [Repealed 1905; Stats. 1905, p. 728.] Control over guardian: See Code Civ. Proc, § 1771. Legislation § 245. 1. Enacted March 21, 1872. 2. Repeal by Stats. 1901, p. 340; unconstitutional. See note, § 4, ante. 3. Repealed by Stats. 1905, p. 728. See ante. Legislation, § 242, for code commissioner's note. § 246. Rules for awarding custody of minor. In awarding the custody of a minor, or in appointing a general guardian, the court or officer is to be guided by the following considera- tions : 1. By what appears to be for the best interest of the child in respect to its temporal and its mental and moral welfare ; and if the child is of a sufficient age to form an intelligent pref- erence, the court may consider that preference in determining the question ; 2. As between parents adversely claiming the custody or guardianship, neither parent is entitled to it as of right; but other things being equal, if the child is of tender years, it should be given to the mother ; if it is of an age to require edu- cation and preparation for labor and business, then to the father ; 3. Of two persons equally entitled to the custody in other respects, preference is to be given as follows : (1) To a parent; (2) To one w^ho was indicated by the wishes of a deceased parent ; (3) To one who already stands in the position of a trustee of a fund to be applied to the child's support; (4) To a relative. 4. Any parent who knoAvinglyor willfully abandons, or hav- ing the ability so to do, fails to maintain his minor child under the age of fourteen years, forfeits the guardianship of such child ; and any parent or guardian who knowingly permits his child or Avard to remain for the space of one year in any orphan asylum of this state, wherein such child is supported by charity, and who, during such period, fails to give notice in writing to the managers or officers of such asvlum that he 73 GUARDIAN AND WARD. § 249 is such parent or guardian, abandons and forever forfeits all right to the guardianship, care, custody, and control of such child. The officers and managers of any orphan asylum hav^ ing any such abandoned child in its care have the preferred right to the guardianship of such child. [Amendment ap- proved 1905; Stats. 1905, p. 728.] Custody of children generally. Pending divorce: See ante, § 138. Without divorce: See ante, §§ 199, 214. Custody of child where parents separated: See ante, § 214. Orphan and abandoned children: See General Laws, Acts 2594-2597; post, Appendix, tit. "Infancy." Legislation § 246. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 127. 2. Amended by Code Amdts. 1873-74, p. 196, (1) in subd. One, changing "is" to "be" after "if the child"; (2) in subd. Two, changing "is" to "be" after "if the child" and after "if it"; (3) changing the order of preference as it now stands in subd. Three from "First. To a parent. Second. To a relative. Third. To one who was indicated by the wishes of a deceased parent. Fourth. To one who already stands in the position of a trustee of a fund to be applied to the child's support"; (4) omitting par. Fifth of subd. Three, which read: "To one of good moral standing." 3. Amendment by Stats. 1901, p. 340; unconstitutional. See note, § 4, ante. 4. Amended by Stats. 1905, p. 728, adding subd. 4; the code com- missioner saying, "The change consists in the addition of subd. 4, which is a codification of the statute of 1873-74, p. 297, relating to the care of orphan and abandoned children. The penal provisions of that act are, however, omitted, as they do not properly find a place in this code." 247. Powers of guardian appointed by court. [Repealed 1905; Stats. 1905, p. 729.] Legislation 247. 1. Enacted March 21, 1872. 2. Eepeal by Stats. 1901, p. 341; unconstitutional. See note, § 4, ante. 3. Eepealed by Stats. 1905, p. 729; the code commissioner saying, "The subject-matter of this section is provided for in § 1753 of the Code of Civil Procedure, and the section is, therefore, repealed." § 248. Duties of guardian of the person. [Repealed 1905 ; Stats. 1905, p. 729.] Compare § 251, post. Legislation § 248. 1. Enacted March 21, 1872. 2. Eepeal by Stats. 1901, p. 341; unconstitutional. See note, § 4, ante. 3. Eepealed by Stats. 1905, p. 729; the code commissioner saying in his note to §§ 248, 249, "The provisions of these sections are in- cluded in §§ 1753 and 1770 of the Code of Civil Procedure." 249. Duties of guardian of estate. [Repealed 1905; Stats. 1905, p. 729.] Sale of ward's estate: See Code Civ. Proc. §§ 1777 et seq. Guardian using principal as well as income: See Code Civ. Proc, § 1770. § 254 CIVIL, CODE. 74 Legislation § 249. 1. Enacted March 21. 1872. 2. Amended by Code Amdts. 1873-74, p. 197. 3. Amended by Code Amdts. 1880, p. 5. 4. Eepeal by Stats. 1901, p. 341; unconstitutional. See note, § 4, ante. 5. Eepealed by Stats. 1905, p. 729. See ante, Legislation § 248, for code commissioner's note. § 250. Relation confidential. The relation of guardian and ward is confidential, and is subject to the provisions of the title on trust. Trusts: See post, §§ 2215 et seq. Legislation § 250. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code. § 131. § 251. Guardian under direction of court. In the manage- ment and disposition of the person or property committed to him, a guardian may be regulated and controlled by the court. Legislation § 251. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 132. § 252. Death of a joint guardian. On the death of one of two or more joint guardians, the power continues to the sur- vivor until a further appointment is made by the court. Survival of trust: See post, § 228S. Legislation § 252. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 133. § 253. Removal of g'uardian. A guardian may be removed by the superior court for any of the folloAving causes : 1. For abuse of his trust; 2. For continued failure to perform its [his] duties; 3. For incapacity to perform its [his] duties; 4. For gross immorality ; 5. For having an interest adverse to the faithful perform- ance of his duties ; 6. For removal from the state : 7. In the case of a guardian of the i:>roperty, for insolvency : or, 8. "When it is no longer proper that the ward should be un- der guardianship. [Amendment approved 1880 ; Code Amdts. 1880, p. 5.] Removal of guardian: See Code Civ. Proc. § ISOl. Legislation § 253. 1. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code. § 134. 2. Amended by Code Amdts. 1880, p. 5, substituting "superior" for "probate" before "court." § 254. Guardian appointed by parent, how^ superseded. Tlie power of a guardian appointed by a parent is superseded : 75 GUARDIAN AND WARD. § 258 1. By his removal, as provided by section two hundred and fifty-three ; 2. By the solemnized marriage of the ward ; or, 3. By the ward's attaining majority. Marriage of ward terminates guardianship: Code Civ. Proc, § 1802. Legislation § 254. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 135. § 255. Suspension of power of guardian. The power of a guardian appointed by a court, is suspended only : One. By order of the court ; or, Two. If the appointment was made solely because of the ward's minority, by his attaining majority; or, Three. The guardianship over the person of the ward, by the marriage of the ward. [Amendment approved 1874 ; Code Amdts. 1873-74, p. 197.] Marriage of ward terminates guardianship. Code Civ. Proc, § 1802. Legislation § 255. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 136. 2, Amended by Code Amdts. 1873-74, p. 197, adding subd. 3. 3. Eepeal by Stats. 1901, p. 341; unconstitutional. See note, § 4, ante. § 256. Release by ward. After a ward has come to his majority, he may settle accounts with his guardian, and give him a release, which is valid if obtained fairly and without undue influence. Legislation § 256. Enacted March 21. 1872; baged on Field's Draft, N. Y. Civ. Code, § 137. § 257. Guardian's discharge. A guardian appointed by a court is not entitled to his discharge until one year after the ward's majority. Resignation of guardian: See Code Civ. Proc, § 1801. Legislation § 257. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 138. § 258. Insane persons. [Repealed 1905 ; Stats. 1905, p. 729.] Guardianship of lunatic: See Code Civ. Proc, § 1763. Legislation § 258. 1. Enacted March 21, 1872. 2. Amended by Code Amdts. 1880, p. 5. 3. Eepeal by Stats. 1901, p. 341; unconstitutional. See note, § 4, ante. 4. Repealed by Stats. 1905, p. 729; the code commissioner saying, "This section, which prescribed the mode of placing insane persons in the asylum, has been supplanted by later legislation (see statute of 1897, p. 311, relative to the establishment of a lunacy commission, and Political Code. §§ 2136 to 2199), and is, therefore, repealed." § 264 CIVIL CODE. 76 TITLP] IV. Master and Apprentice. § 264. Minors, when and to whom may be bound as apprentices. § 265. Persons who may bind minor with his consent. § 266. Indenture of apprenticeship, how to be executed and what to con- tain. § 267. Jury trial as to facts of incapacity, etc., of parent. § 268. Apprenticing of poor and homeless minors. § 269. Master to keep apprentice within the state, to deliver him money and other property therein. § 270. Duty to inquire into the treatment of minor apprentices. § 271. Hearing of complaints of apprentices. § 272. Power of court to discharge apprentice from apprenticeship. § 273. Liability of master for breach of his covenant. § 274. Liability of, and proceedings against, apprentice guilty of gross misbehavior. § 275. Enticing away apprentices and liability for. § 276. Eelease of master removing out of state or quitting business. Legislation Title IV. 1. Enacted March 21, 1872, and was then en- titled "Master and Servant," consisting of §§ 264-276. The code com- missioners say: "This title (Master and Servant), is a literal copy of the Statutes of 1858, save the last two sections,' which provided for special remedies." The code commissioners say nothing of § 13 of this act, which read, "Nothing in this act shall concern, or in any man- ner affect or relate to Indians; and every person having one half or more of Indian blood shall be deemed an Indian within the provisions of this act." Th« original code sections are printed in their numerical order under the title Legislation of the respective sections, regardless of the amendment of 1905. It should be noted that, besides § 13, quoted supra, there were three sections, not two, of the act of 1858, not adopted in the code, the marginal titles of which read: (§ 15) "Application for annulling [contract]; (§16) "Punishment for flying [sic] from service"; (§ 17) "Accomplices." 2. Eepealed and a new title substituted by Stats. 1905, p. 560, the title of the act reading, "An Act to repeal Title FV of Part III of Division First of the Civil Code and each and every section of said title, and to substitute a new Title FV to take the place thereof in said code, relating to masters and apprentices." See infra, Legislation § 264, for code commissioner's note, and also tit. "Legislation," under the respective sections of the title. § 264. Minors, when and to whom may be bound as ap- prentices. Every minor of the ag:e of fourteen years or up- wards may be bound by -indenture as an apprentice to any mechanical trade or art or the occupation of farming: to the age of eighteen years, if a female, or to the age of twenty-one years, if a male. Aiding apprentice to run away, a misdemeanor: Pen. Code, § 646. Master and servant generally: See post, § 2009. Legislation 264. 1. Enacted March 21, 1872 (based on Stats. 1858, p. 134, §1), and then read: "Every minor, with the consent of the persons or officers hereinafter mentioned, may, of his own free will. 77 MASTER AND APPRENTICE. § 265 bind himself, in writing, to serve as clerk, apprentice, or servant, in any profession, trade, or employment, during his minority; and such binding shall be as valid and effectual as if such minor was of full age at the time of making the engagement." 2. Amendment by Stats. 1901, p. 341; unconstitutional. Sen; note, § 1, ante. 3. Eepealed by Stats. 1905, p. 560. 4. Ee-enacted by Stats. 1905, p. 560; the code commissioner saying, in his note to §§ 264, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, "These sections codify the statute of 1875-76, p. 842, relative to masters and apprentices, as amended in 1880, p. 28, the old chapter being repealed and the provisions of the acts above referred to sub- stituted in place thereof. In this codification § 1 of the statute has been made § 264; §§ 2 and 7, 265; §f 3, 4, 5, and 12, 266; § 6, 267; § 8 and the latter part of § 9, 268; the first clause of § 9, and all of § 10, 269; §11, 270; §13, 271; §14, 272; §15, 273; §§16 and 17, 274; §19, 275; §20, 276. It will be observed that § 18 of the statute has been omitted. It purports to make the parties to an indenture of appren- ticeship liable to the master for any breach thereof. The theory of the statute is that the contract of apprenticeship is not made by the minor, but by his parent or guardian. If such parent or guardian is made personally liable on the contract, a parent will rarely, and the guardian almost never, enter into it. It seems sufficient that such parent or guardian be made answerable for the cost of the proceeding brought by the master to be released from the indenture, as provided for in § 274. The master on his part is not absolutely bound, because he may, if he wishes to remove from the state, or to quit his trade or business, apply to be released from his contract, and he may take like action whenever the apprentice is guilty of neglect, refusal to do his duty, or gross misbehavior. These considerations seem to furnish good reason for the omission of the section." See supra, Legislation Title IV, for original code commissioners' note, etc. § 265. Persons who may bind minor with his consent, A minor, with his consent, may be bound by his father, or, in case of his death or incompetency, or where he has willfully abandoned his family for one year without making suitable provision for their support, or is habitually intemperate in the use of intoxicants, or is a vagrant, then by his mother or legal guardian. An executor, who, by the will of the father, is directed to bring up a child to a trade or calling, has power to bind by indenture in like manner as the father might have done, if living. If a child is illegitimate, the mother alone has power to bind him. If a minor has no parent or guardian competent to act for him, he may bind himself, with the ap- proval of the superior court of the county wherein he resides. If the mother of a minor, whether legitimate or illegitimate, marries after his birth, she cannot bind him without the ap- proval of such superior court. Legislation § 265. 1. Enacted March 21, 1872 (based on Stats. 1858, p. 134, § 2), and then read: "Such consent shall be given: 1. By the father of the minor. If he be dead, or be not of legal capacity to give his consent, or if he shall have abandoned or neglected to provide for his family, and such fact be certified by a justice of the peace of the § 267 CIVIL CODE. 78 township or county, or sworn to bj' a credible witness, and such cer- tificate or affidavit 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 such infant have no parent living, or none in a legal capacity to give con- sent, 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 probate 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." 2. Amended by Code Amdts. 1880, p. 5, in subd. 4, substituting "su- perior" for "probate." 3. Amendment by Stats. 1901, p. 341; unconstitutional. See note, § 4, ante. 4. Eepealed by Stats. 1905, p. 560. 5. Ee-enacted by Stats. 1905, p. 561. See ante, Legislation § 264. for code commissioner's note. § 266. Indenture of apprenticeship, how to be executed and what to contain. Every indenture of apprenticeship must be executed in duplicate, must state the age of the minor, and, except as hereinafter provided, must show that he consented thereto, must be signed by him and the person binding and the master, and Avlien made with the approval of the superior court, a certified copy of the order of approval must be at- tached to the indenture. One copy of the indenture must be delivered to the master and the other kept for the use of the minor by his parent or guardian when executed by him, or, when made with the approval of the court, it must be filed and deposited with the clerk for safe-keeping for the use of the minor. No indenture binds the minor after the death of the master, but thereafter the minor may be bound anew. Every indenture entered into otherwise than as herein pro- vided is, as against the apprentice, absolutely void. Legislation § 266. 1. Enacted March 21, 1872 (based on Stats. 1858, p. 134, § 3), and then read: "Such consent shall be signified in writing by the person entitled to give the same, by certificate at the end of, or indorsed upon the indentures." 2. Amendment by Stats. 1901, p. 341; unconstitutional. See note, § 4, ante. 3. Repealed by Stats. '1905, p. 560. 4. Re-enacted by Stats. 1905, p. 561. See ante, Legislation § 264, for code commissioner's note. § 267. Jury trial as to facts of incapacity, etc., of parent. Facts of incapacity, desertion, habitual intemperance, and va- grancy must be decided in said court by a jury, before the in- denture can take effect, and an indorsement on the indenture, lender seal of the court, that the charge or charges are proved, is sufficient evidence of the mother's power to give such con- sent; but if the jury does not find the charge or charges to 79 MASTER AND APPRENTICE. § 269 be true, the person at whose instance such proceedings may have been had must pay all costs attending the same. legislation § 267, 1. Enacted March 21, 1872 (based on Stats. 1858, p. 134, § 4), and then read: "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 appren- tice, in like manner as the father might have done if living. If there is a surviving mother, her consent also is necessary." 2. Amendment by Stats. 1901, p. 342; unconstitutional. See note, § 4, ante. 3. Repealed by Stats. 1905, p. 560. 4. Ee-enacted by Stats. 1905, p. 561. See ante. Legislation § 264, for code commissioner's note. § 268. Apprenticing- of poor and homeless minors. When a minor is poor, homeless, chargeable to the county or state, or an outcast who has no visible means of obtaining an honest livelihood, the superior court may, with his consent, bind him as an apprentice during his minority. Proceedings therefor may be instituted by any citizen, and no fee must be charged by any officer for any act in connection therewith. In all in- dentures by the court for binding out an orphan or homeless minor as an apprentice there must be inserted, among other things, a clause to the following effect: that the master to whom such minor is bound must cause him to be taught to read and w^rite and the ground rules of arithmetic, ratio and pro- portion, and must give him the requisite instruction in the different branches of his trade or calling, and, at the expira- tion of his term of service, must give him or her fifty dollars in gold, and two whole new- suits of clothes, to be worth in the aggregate at least sixty dollars gold. Legislation § 268. 1. Enacted March 21, 1872 (based on Stats. 1858, p. 134, § 5), and then read: "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 effectual as if such minors had bound themselves with the consent of their father." 2. Amendment by Stats. 1901, p. 342; unconstitutional. See note, § 4, ante. 3. Repealed by Stats. 1905, p. 560. 4. Re-enacted" by Stats. 1905, p. 561. See ante. Legislation § 264, for code commissioner's note. § 269. Master to keep apprentice within the state, to de- liver him money and other property therein. A master must not remove his apprentice out of the state, and must pay and deliver to him the money, clothes, and other property to which he is entitled under the indenture of apprenticeship, to be held by him as his sole property. Legislation § 269. 1. Enacted March 21, 1872 (based on Stats. 1858, p. 134, § 6), and then read: "In every town or city the presiding officer of the first council or legislative board thereof, if there be more than § 272 CIVIL CODE. 80 one, or any public officer or officers appointed to provide for the poor, may in like manner bind out any child who, or whose parents are, chargeable to any such town or city." , 2. Amendment by Stats. 1901, p. 342; unconstitutional. See note, § 4, ante. 3. Repealed by Stats. 1905, p. 560. 4. Re-enacted by Stats. 1905, p. 562. See ante, Legislation § 264, for code commissioner's note. § 270. Duty to inquire into the treatment of minor appren- tices. Parents and guardians and such court must, from time to time, inquire into the treatment of children bound by them respectively, or with their approval, and the judges of such courts are responsible far the charge of apprentices bound by a court or with its approval, and must defend them from all cruelty, neglect, breach of contract, or misconduct on the part of their masters. Legislation § 270. 1. Enacted March 21, 1872 (based on Stats 1858, p. 134, § 7), and then read: "The age of every infant so bound shall be inserted in the indentures, and shall be taken to be the true age; and whenever public officers are authorized to execute any indentures, or their consent is required to the validity of the same, it shall be their duty to inform themselves fully of the infant's age." 2. Amendment by Stats. 1901, p. 342; unconstitutional. See note, § 4, ante. 3. Repealed by Stats. 1905, p. 560. 4. Re-enacted by Stats. 1905, p. 562. See ante, Legislation § 264, for code commissioner's note. § 271. Hearing' of complaints of apprentices. The superior court must hear the complaints of apprentices who reside within the county against their masters, alleging undeserved or immoderate correction, insufficient allowance of food, rai- ment, or lodging, want of instruction in the different branches of their trade or calling, or that they are in danger of being removed out of the state, or any violation of the indenture of apprenticeship, and the court must hear and determine such case and make such order therein as will relieve the party in the future. Legislation § 271. 1. Enacted March 21, 1872 (based on Stats. 1858, p. 134, § 8), and then read: "Every sum of money paid or agreed for, with or in relation to the biliding out of any clerk, apprentice, or ser- vant, shall be inserted in the indentures." 2. Amendment by Stats. 1901, p. 342; unconstitutional. See note, § 4, ante. 3. Repealed by Stats. 1905, p. 560. 4. Re-enacted by Stats. 1905, p. 562. See ante, Legislation § 264, for code commissioner's note. § 272. Pow^er of court to discharge apprentice from appren- ticeship. The superior court has power, where circumstances require it, to discharge an apprentice from his apprenticeship, and, in case any money or other thing has been paid or con- 81 MASTER AND APPRENTICE. § 274 tracted to be paid by either party in relation to the appren- ticeship, the eourt nnist make snch order concerning the same as seems just and reasonable. If the apprentice so discharged was originally bound by the superior court, it must, if found necessary, again bind such minor, if under age. . Legislation § 272. 1. Enacted March 21, 1872 (based on Stats. 1858, p. 134, § 9), and then read: "The indenture shall also contain an agree- ment, on the part of the person to whom such child shall be bound, that he will cause such child to be instructed to read and write, and to be taught the general rules of arithmetic, or, in lieu thereof, that he will send such child to school three months of each year of the period of indenture." 2. Amendment by Stats. 1901, p. 343; unconstitutional. See note, § 4, ante. 3. Eepealed by Stats. 1905, p. 560. 4. Ee-enacted by Stats. 1905, p. 562. See ante. Legislation § 264, for code commissioner's note. § 273. Liability of master for breach of his covenant. Every master is liable to an action on the indenture for a breach of any covenant thereof on his part. All damages re- covered in such action, after deducting necessary charges in its prosecution, belong to the minor, and must be applied and appropriated to his use by the person recovering it in his be- half, and must he paid to the minor, if a male, at the age of twenty-one years, and if a female, at the age of eighteen years. If no action is brought during the minority of the apprentice, it may be commenced by him in his own name at any time within two years after his coming of age. Legislation § 273. 1. Enacted March 21, 1872 (based on Stats. 1858, p. 134, § 10), and then read: "The counterpart of any indenture exe- cuted by any county, or city, or town officers, must be by. them depos- ited in the office of the clerk of the county court." 2. Amended by Code Amdts. 1880, p. 6. 3. Amendment by Stats. 1901, p. 343; See note, unconstitutional. § 4, ante. 4. Repealed by Stats. 1905, p. 560. 5. Ee-enacted by Stats. 1905, p. 562. See ante. Legislation, § 264, for code commissioner's note. § 274. Liability of, and proceedings against, apprentice g"uilty of gross misbehavior. An apprentice who is guilty of any gross misbehavior, or refusal to do his duty, or willful neglect thereof, is liable to the complaint of his master in the superior court of the county wherein the apprentice resides. Such complaint must set forth the circumstances of the case, and have attached thereto a citation, signed by the clerk of the court, requiring him and all persons who have covenanted in his behalf to appear and answer the complaint within ten days after the service thereof. The complaint and citation Civ. Code — 6 § 275 CIVIL CODE. 82 mast be served in the manner required for serving civil pro- cess. When the parties have answered, or when, though they have not answered, the time therefor allowed after the ser- vice of the complaint has expired, the court must proceed to hear and determine the cause, and, if the evidence warrants it, may render judgment that the master be discharged from the contract of apprenticeship and for costs of suit. Such costs may be recovered from the parent or guardian of the minor, if there is any who signed the indenture, and execution therefor may issue accordingly. If there is no parent or guardian liable for such cost, execution may be issued therefor against the minor, or the amount thereof may be recovered in an action against him after he arrives at full age. He is also liable to the master in an action on the indenture for the breach of any covenant on the part of the apprentice con- tained therein, committed before the master was discharged from the indenture. Legislation § 274. 1. Enacted March 21, 1872 (based on Stats. 1858, p. 134, § 11), and then read: "Any minor, capable of becoming a citizen of this state, coming from any other country, state, or territory, may bind himself to service until his majority, or for any shorter term. Such contract, if made for the purpose of raising money to pay his passage, or for the payment of such passage, may be for the term of one year, although such term may extend beyond the time when such person will be of full age, but it shall in no case be for a longer term." 2. Amendment by Stats. 1901, p. 343; unconstitutional. See note, § 4, ante. 3. Eepealed by Stats. 1905, p. 560. 4. Re-enacted" by Stats. 1905, p. 562. See ante. Legislation § 264, for code commissioner's note. § 275. Enticing away apprentices and liability for. It is unlawful for any person to entice, counsel, or persuade to run away any apprentice, or to harbor, or conceal him, knowing him to be a runaway. Any party so offending is guilty of a misdemeanor, and may be fined not more than one hundred dollars, to be recovered by the master in any court having jurisdiction. Legislation § 275. 1. Enacted March 21, 1872 (based on Stats. 1858, p. 134, § 12), and then read: "No contract made under the preceding section shall bind the servant, unless duly acknowledged by the minor, before some public magistrate or other officer authorized to administer oaths, nor unless a certificate, showing that the same was made freely, on private examination, be indorsed upon the contract." 2. Amendment by Stats. 1901, p. 343; unconstitutional. See note, §'4, ante. 3. Repealed by Stats. 1905, p. 560. 4. Re-enacted by Stats. 1905, p. 563. See ante, Legislation § 264, for code commissioner's note. 83 MASTER AND APPRENTICE. § 276 § 276. Release of master removing out of state or quitting business. Whenever any master wishes to remove out of the state, or to quit his trade or business, he must appear with his apprentice before the superior court of the county in which the latter resides, and if the court is satisfied that the master has done justice to the apprentice for the time he has had charge of him, the court has power to discharge the master from the indenture and to again bind the apprentice, if neces- sary. Legislation § 276. 1. Enacted March 21, 1872 (based on Stats. 1858, p. 134, § 14), and then read: "Such indentures of apprenticeship may be annulled for: 1. Fraud in the contract of indenture; 2. When such eon- tract is not made or executed in accordance with the provisions of this title; 3. For willful nonfulfillment, by such master, of the pro- visions of such indenture; 4. Cruelty or maltreatment of such appren- tice by the master. In such case, the apprentice may recover for his services." 2. Amendment by Stats. 1901, p. 344; unconstitutional. See note, § 4, ante. 3. Repealed by Stats. 1905, p. 560. 4. Ee-enacted by Stats. 1905, p. 563. See ante, Legislation § 264, for code commissioner's note. ClVlIi CODE. 84 PAET IV. CORPORATIONS. iTi.E I. General Provisions Applicable to All Corpora- tions. §§283-410. II. Insurance Corporations. §§414-453hh. III. Railroad Corporations. §§454-494. IV. Street-railroad Corporations. §§497-511. V. Wagon-road Corporations. §§ 512-524. VI. Bridge, Ferry, Wharf, Chute, and Pier Corpora- tions. §§ 528-531. VII. Telegraph and Telephone Corporations. §§ 536- 541. VIII. Water and Canal Corporations. §§ 548-552. IX. Homestead Corporations. §§ 557-566. X. Savings and Loan Corporations. §§ 571-583b. XI. Mining Corporations. §§ 584-590. XIa. Corporations for the Formation of Chambers of Commerce, Boards of Trade, Mechanics' Insti- tutes, AND Other Kindred Associations. §§ 591- 592e. XII. Religious, Social, and Benevolent Corporations. §§593-605. Xlla. Societies for the Prevention op Cruelty to Chil- dren AND Animals. §§ 607-607g. XIII. Cemetery Corporations. §§ 608-616. XIV. Agricultural Fair Corporations. §§ 620-622. XV. Corporations to Furnish Light for Public Use. §§ 628-632. Land and Building Corporations. §§ 633-648a. Colleges and Seminaries of Learning. §§ 649-651. Consolidation of Colleges and Institutions of Higher Education. §§ 652, 653. XIX. Co-operative Business Corporations. §§ 653a. XX. Co-operative Business Associations. §§ 653b-653l. XXI. Non-profit Co-operative Agricultural, Viticultural AND Horticultural Associations. §§ 653m-653s. XXII. Non-profit Co-operative Corporations. §§ 653t^ 653zb. Legislation Part IV. When enacted in 1872, Part IV contained Titles I-XVI, the numbers running consecutively. For additions, amendments, etc., see tit. "Legislation," under the respective titles, chapters, articles, and sections constituting the part. 85 FORMATION OF CORPORATIONS. TITLE I. General Provisions Applicable to All Corporations. Chapter I. Formation of Corporations. Articles I, II, §§ 283-321b. II. Corporate Stock. Articles I, II. §§ 322-349. III. Corporate Powers. Articles I-IV. §§354-393. IV. Extension and Dissolution of Corporations. §§ 399-403. V. General Provisions Affecting Corporations. §§ 403, 404. VI. Foreign Corporations. §§ 405-410. Legislation Title I. When enacted in 1872, Title I contained Chap- ters I-IV. Chapters V and VI were added in 1905. See tit. "Legis- lation," under these chapters and under the sections constituting the same. CHAPTER I. Formation of Corporations. Article I. Corporations Defined and How Organized. §§ 283-300a. II. By-laws, Directors, Elections, and Meetings, §§ 301-321b. AETICLE I. Corporations Defined and How Organized. § 283. Corporation defined. § 284. Corporations; what are. § 285. Private corporations; how formed. § 286. For what purpose private corporations are formed. § 287. How corporations may continue their existence under this code. § 288. Existing corporations not affected. § 289. Name of instrument creating corporation. § 290. Articles of incorporation. Number of directors. Amount of capital stock. § 290a. Affidavit of corporations authorized to act as executors, etc. Bank- ing corporations. Capital stock. Determination of population. Approval of superintendent of banks. § 2901/;. Corporations not to use the word "trust" as part of corporate name. § 291. Certain corporations to state further facts in articles. § 292. Subscription and acknowledgment of articles of incorporation. § 293. Prerequisite to filing articles. Amounts to be subscribed to be fixed. § 294. Prerequisite to filing articles of corporations for profit. § 295. Oath of officer to subscription of stock and payment of ten per cent. § 296. Secretary of state to issue certificate of incorporation. Not to file copy of copy. § 297. Copy of articles prima facie evidence. § 297a. Restoration of lost original articles of incorporation. § 298. Who are members and who stockholders of a corporation. § 299. When members die, successors to be elected. [Eepealed.] § 299. Filing articles of incorporation. § 300. Capital stock of banking corporations. Dividends. § 300a. Change of name; filing copy of decree. § 285 CIVIL CODE. 86 § 283. Corporation defined. A corporation is a creature of the laAv, having certain powers and duties of a natural person. Being created by the law, it may continue for any length of time which the law prescribes. Powers of corporations: See post, §§ 354 et seq. Existence of corporations limited to fifty years: See post, §§ 290,401. Legislation § 283. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, vol. 2, p. 117. § 284. Corporations; what are. Corporations are either public or private. Public corporations are formed or organ- ized for the government of a portion of the state ; all other corporations are private. [Amendment approved 1874; Code Amdts. 1873-74, p. 197.] Legislation § 284. 1. 'Enacted March 21. 1872; based on Const. 1849. art. iv, § 31; Angell and Ames on Corporations, §§ 12, 32; Field's Draft, N. Y. Civ. Code, vol. 2, p. 117. The code commissioners say: "As much controversy has arisen, not only in our state, but throughout many of the states of the Union, on the subject of this section, we have deemed it best to give these definitions, which, in our opinion, are but a reit- eration of our very explicit constitution, and in accordance with ex- cellent authority." 2. Amended by Code Amdts. 1873-74, p. 197. substituting "all other corporations are private" for "private corporations are formed for the purpose of religion, benevolence, education, art, literature, or profit." § 285. Private corporations; how formed. Private cor- porations may be formed hy the voluntary association of any three or more persons in the manner prescribed in this article. A majority of such persons must be residents of this state. [Amendment approved 1905; Stats. 1905, p. 502.] Formation of corporation to be under general laws: Const. 1879, art. xii, § 1. Legislation § 285, 1. Enacted March 21, 1872 (based on Stats. 1858, p. 2G4, §2; Field's Draft, N. Y. Civ. Code, vol. 2, p. 118), and then read: "Private corporations may be formed by the voluntary associa- tion of any five or more persons, for the purposes and in the manner prescribed in this article. A majority of such persons shall be citizens of this state. Married women may become corporators, officers, and members of religious, benevolent, art, literary, or educational corpora- tions." The code commissioners say: "This section is new, and is in- tended as a substitute for the first section' of almost every act author- izing the formation of corporations for particular purposes, of which there are many in our statutes. Their great prolixity, and their diver- sity in the number of corporators and other respects, is intended by the commission to be obviated by condensing provisions and sections having similar objects into one, as is done here. In the New York code the minimum is three, but as the majority of our corporation acts name a larger number as their minimum — some as many as thirteen — the commission, for obvious reasons, felt unwilling to place the number less than five. The following acts show the numbers adopted (late legislation has increased rather than diminished the number): Stats. 1850, p. 347; Stats. 1851, p. 523; Stats. 1861, p. 607; Stats. 1853, p. 87; S7 FORMATION OF CORPORATIONS. § 286 Stats. 1857, p. 75; Stats. 1859, p. 281; Stats. 1862, p. 199; Stats. 1866, p. 743; Stats. 1866, p. 752; Stats. 1853, p. 169; Stats. 1858, p. 57; Stats. 1861, p. 567; Stats. 1863, p. 624." 2. Amended by Code Amdts. 1873-74, p. 197, and then read as at present, except for the amendment of 1905. 3. Amended by Stats. 1905, p. 502; substituting "three" for "five." § 286. For what purpose private corporations are formed. Private corporations may be formed for any purpose for which individuals may lawfully associate themselves. [Amendment approved 1874; Code Amdts. 1873-74, p. 198.] Corporations to give bonds required by law: See post. Appendix, tit. "Bonds." Legislation § 286. 1. Enacted March 21, 1872 (based on Stats. 1865- 66, pp. 743, 752; Stats. 1861, p. 607; Stats. 1853, pp. 114, 160; Stats. 1862, p. 540; Stats. 1850, p. 347; Stats. 1867-68, p. 539; Stats. 1862, p. 199; Stats. 1867-68, p. 459; Stats. 1869-70, pp. 130-132, 364; Stats. 1869-70, p. 523; Stats. 1853, p. 574; Stats. 1857, p. 121; Stats. 1862, p. 41; Stats. 1863-64, p. 76; Stats. 1869-70, p. 822; Stats. 1852, p. 171; Stats. 1869-70, p. 660; Stats. 1869-70, p. 815; Stats. 1859, p. 104; Stats. 1867-68, pp. 204, 218; Stats. 1869-70, p. 419; Stats. 1863, p. 624; 'Stats. 1865-66, p. 469; Stats. 1857, p. 75; Stats. 1850, p. 347; Stats. 1869-70, pp. 402, 702; Stats. 1859, p. 281), and then read: "The purposes for which private corporations may be formed are the following, and none other: 1. Fire, marine, life, health, accident insurance; 2. The insurance of the lives of domestic animals; 3. Construction, conduct, and maintenance of railroads, and telegraph lines in connection there- with; 4. Construction, conduct, and maintenance of street-railroads, plank-roads, turnpikes, common wagon-roads; 5. Construction, conduct, and maintenance of bridges, ferries, wharves, chutes, piers; 6. The establishment, conduct, and maintenance of express or stage lines; 7. Constructing, conducting, and maintaining telegraph lines; 8. Construct- ing and maintaining canals for navigation, and canals and ditches for drainage, agricultural, or mining purposes; 9. For navigating the ocean, or any of the waters of this state, with vessels propelled by sails, or in whole or in part by steam; 10. The purchase of lands for, and the distribution of homesteads; 11. The accumulation of funds for the purchase of real property, and for the erection of buildings and improvements thereon, for the benefit of the members thereof; 12. Ac- cumulating savings, and loaning the funds of the members thereof; 13. Manufacturing, mining, mercantile, mechanical, wharfing, docking, or chemical purposes, or for engaging in any other species of trade, busi- ness, or commerce; 14. The transacting of a printing and publishing business; l5. To supply water to the public; 16. The manufacture and supply of gas, or the supply of light or heat to the public by any other •neans; 17. The establishment, conduct, and maintenance of hotels, laundries, or theaters; IS. For the formation, conduct, and maintenance of district and county agricultural fairs; 19. The encouragement of, or business of, agriculture, horticulture, or stock-raising; 20. The improve- ment of the breed of domestic animals; 21. The support, conduct, and maintenance of colleges of learning, or for any literary or scientific object, or for the promotion of any of the sciences or fine arts; 22. Acquiring, preserving, and conducting public libraries; 23. The organ- ization and conduct of chambers of commerce, boards of trade, and mechanic institutes; 24. The support, conduct, and maintenance of homes and schools for orphans and foundlings, or either of them, or § 287 CIVIL CODE. 88 any person otherwise destitute; 25. For the purposes of religion, socia- bility, charity, or learning; 26. The purchase of lands for and the main- tenance of cemeteries; 27. For banks of discount and deposit." The code commissioners say: "It will be observed that in the classification of the purposes for which corporations may be organized, one very ex- tensive class has been omitted. We allude to the seventh class, under the act of April 14, 1853, p. 87, which reads thus: 'Or for the purpose of engaging in any other species of trade or commerce, foreign or domestic' This was 'amended,' March 5, 1864 (Stats. 1863-64, p. 149), by inserting the word 'business' after the word 'trade.' We are of the opinion that this was an advance backwards; and subseqiient legis- lation on the same subject — even that had at the session of 1870 (Stats. 1869-70, p. 822) — shows that a similar 'advance,' to a greater extent, has been made. It is not our purpose, in this note, to discuss the pro- priety of 'specifying' particularly the objects for which corporations may be formed; but if the act of 1853, as amended in 1863-64, and that of 1869-70, are to be retained, all others should be stricken from the code, for they comprehend and permit every species of corpora- tion. A sufficient reason for our proposed change may be found in the decision of the supreme court at the October term, 1870 — Vandall V. South San Francisco Dock Company [40 Cal. 83] — in which the learned judge (Crockett) uses this very significant language: 'Whatever difficul- ties surround this question result from the peculiar nature of this class of corporations, organized for the novel purpose of speculating in real estate; and though it may be a very questionable policy which per- mits corporations to be formed for such a purpose, that is a considera- tion to be addressed to the legislature and not to the court.' For this reason we have omitted this class of corporations, except in so far as they are embraced in the classes enumerated in this section, which are supposed to be sufficiently broad to embrace every character of business requiring a combination of capital for the successful prose- cution of the proposed business." 2. Amended by Code Amdts. 1873-74, p. 198. § 287. How corporations may continue their existence un- der this code. Any corporation existing- on the first day of January, one thousand eight hundred and seventy- three, formed under the laws of this state, and still existing, Avhieh has not already elected to continue its existence, under the provisions of this code applicable thereto, may, at any time hereafter, make such election by the unanimous vote of all its directors, or such election may be made at any annual meet- ing 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 of the members, or may be made by the directors upon the written consent of that number of such stockholders or members. A certificate of the action of the directors, signed by them and their secretary, when the elec- tion is made by their unanimous vote, or upon the written con- sent of the stockholders or members, or a certificate of the proceedings of the meeting of the stockliolders or members, when such election is made at any such meeting, signed by the chairman and secretary of the meeting and a majority of the 287. How Corporations May Continue Their Existence Under Thiis Code. Any corporation existing on the first day of Janu- ary, one thousand eight hundred seventy-three, formed under the laws of this state, and still existing, which has not already elected to continue its existence, under the provisions of this code applicable thereto, may, at any time hereafter, make such election by the unanimous vote of all its directors, or such elec- tion 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 of the members, or may be made by the directors upon the written consent of that number of such stockholders or members. A certificate of the action of the directors, signed by them and their secretary, when the election is made by their unanimous vote, or upon the written consent of the stockholders or members, or a certificate of the proceedings of the meeting of the stockholders or mem- bers, when such election is made at any such meeting, signed by the chairman and secretary of the meeting and a majority of the directors, must be filed in the office [of the secretary of state.J and thereafter the corporation shall continue its existence under the provisions of this code which are applicable thereto, and shall possess all the rights and powers, and be subject to all the obli- gations, restrictions, and limitations prescribed thereby. [The secretary of state shali forthwith issue a certified copy of said certificate and transmit said copy to the county clerk of the county in which the principal place of business of the corpora- tion was situated at the time said corporation was incorporated which copy shall be filed by said county clerk upon payment of the fee prescribed by law. A copy of such certificate, certified by the secretary of state, shall be filed by such corporation In the office of the county clerk of every county in which said cor- poration has or holds real property. Any corporation which shall fall to comply with the requirements of the preceding sentence shall be subject to the penalties and liabilities provided in section two hundred ninety-nine for a failure of corporations to file copies of their articles of incorporation with the county clerks of the counties in which they shall purchase, hold or locate real property.] (In effect 90 days from and after April 20, 1<'21. Stats. 1921, Chap. 129.) Civ. Code, 1921 89 FORMATION OF CORPORATIONS. § 290 directors, must be filed in the office of the clerk of the county where the original articles of corporation are filed, and a cer- tified 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'eode which are applicable thereto, and shall possess all the rights and powers, and be subject to all the obligations, restrictions, and limitations pre- scribed thereby. [Amendment approved 1874; Code Amdts. 1873-74, p. 198.] Legislation § 287. 1. Enacted March 21, 1872, and then read: "Any existing corporation formed under any law of this state, for any pur- pose designated in any subdivision of the preceding section, may, at a meeting of its members or stockholders, called for that purpose, continue its existence, under title one of this part, or under the pro- visions of any subsequent title particularly applicable thereto, as fol- lows: 1. Public notice of such meeting, and of its object, must be given by publishing the same in a daily newspaper for two weeks, or a weekly newspaper for four weeks, successively, published in the county where the principal place of business of the corporation is. In lieu of the publication, personal notice may be given to each member or stockholder thereof; 2. Two thirds of the members, if there is no cap- ital stock, and if there is a capital stock, then stockholders represenj;- ing two thirds of it, must vote in favor of such continuance; 3. A copy of the proceedings of this meeting, giving the names of all per- sons present, the votes taken, the notice calling the meeting, and the proof of its publication or service, all duly certified by the president and secretary of the corporation, must be filed in the offices of the sec- retary of state and clerk of the county where the articles of incor- poration are on file. Thereafter such corporation is possessed of all the rights and powers, and subject to all the obligations, restrictions, and limitations provided in this part applicable thereto, and its cor- porate existence is continued." 2. Amended by Code Amdts. 1873-74, p. 198. § 288. Existing- corporations not affected. No corporation formed or existing before tAvelve o'clock, noon, of the day upon which this code takes effect, is affected by the provi- sions of part four, of division first of this code, unless such corporation elects to continue its existence under it as provided in section two hundred and eighty-seven; but the laws under which such corporations were formed and exist are applicable to all such corporations, and are repealed, subject to the pro- visions of this section. Legislation § 288. Enacted March 21, 1872. § 289. Name of instrument creating corporation. The in- strument by which a private corporation is formed is called "articles of incorporation," Legislation § 289. Enacted March 21, 1872. § 290. Articles of incorporation. Number of directors. Amount of capital stock. Articles of incorporation must be prepared, setting forth : § 290 CIVIL CODE. 90 1. The name of the corporation. 2. The purpose for which it is formed. 3. The place Avhere its principal business is to be transacted. 4. The term for which it is to exist, not exceeding fifty years. 5. The number of its directors or trustees, which shall not be less than three, and the names and residences of those who are appointed for the first year; provided, that the corporate, powers, business, and property of corporations formed, or to be formed for purposes other than profit, may be exercised, conducted, and controlled by a board, consisting of such num- ber of directors as may be in the constitution and by-laws provided ; and corporations so formed may, in their constitu- tion or by-laws, provide for the length of time that the direc- tors, or any number thereof, shall act, and may in like manner provide that certain directors, or a certain number of the board of directors, to be selected by the corporation or the board of directors, in the mode and manner provided in the constitution or by-laws, shall act for any specified length of time, or otherwise, as shall be in the constitution or by-laws set forth. 6. The amount of its capital stock, and the number of shares into which it is divided and the par value thereof. Corpora- tions formed for profit, pursuant to the provisions of this code, may, by their articles of incorporation, provide for the classi- fication of their capital stock into preferred and common stock. In the event that the articles of incorporation shall provide for such classification the same must contain a statement of the number of shares of a stock to which preference is granted, and the number of shares of stock to which no preference is granted. The articles of incorporation shall also state, in clear and succinct manner, the nature and extent of the pref- erence granted, and except as to the matters and things so stated, no distinction shall exist betweeri. said classes of stock or the owners thereof; provided, however, that no preference shall be granted nor shall any distinction be made between the classes of stock either as to voting power or as to the statutory or constitutional liability of the holders thereof to the creditors of the corporation ; and provided, further, that the preferred and common shares shall be of the same par value. 7. If there is a capital stock, the amount actually subscribed, and by whom. [Amendment approved 1915 ; Stats. 1915, p. 1481.] Requisites. Particular kinds of corporation: See post, §§ 291, 594. Limit of corporate existence: See post, § 401. Number of directors: See post, § 305. 91 FORMATION OP CORPORATIONS. § 290 Legislation § 290. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, vol. 2, p. 121; Stats. 1868, p. 539, §§_2, 3), and then read: "Articles of incorporation must be prepared, setting forth: 1. The name of the corporation; 2. The purpose for which it is formed; 3. The place where its principal business is to be transacted; 4. The term for which it is to exist, not exceeding tifty years; 5. The number of its directors or trustees, and the names and residences of those who are appointed for the first year; 6. The amount of its capital stock, and the number of shares into which it is divided; 7. If there is a capital stock, the amount actually subscribed, and by whom." 2. Amended by Code Amdts. 1873-74, p. 199, (1) changing subds. 5 and 6 to read: "Five. The number of its directors or trustees, and the names and residences of such of them who are to serve until the election of such otlficers and their qualification. Six. If there be a capital stock, its amount and the number of shares into which it is divided"; (2) omitting subd. 7. 3. Amended by Code Amdts. 1875-76, p. 70, (1) changing subd. 5 to read: "Fifth. The number of its directors or trustees, and the names and residences of those who are appointed for the first year; provided, at any time during the existence of the corporation the number of the directors may be increased, in corporations for profit, by a majority of the stockholders of the corporation, to any number not exceeding eleven, who must be members of the corporation, whereupon a certifi- cate, 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"; (2) restoring subd. 6 to read as originally enacted, and re-enacting, also, subd. 7. 4. Amended by Code Amdts. 1880, p. 11, (1) in subd. First, substi- tuting "incorporation" for "corporation"; (2) in subd. Second, changing "formed" to "framed" (probably a typographical error; corrected in 1891); (3) changing subd. 5 to read: "Fifth. The number of its direct- ors or trustees, which shall not be less than five nor 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 con- ducted, exercised, and controlled by a board of not less than five nor more than fifty directors, to be chosen from among the stockholders of such corporation, or from among the members of such order or organization; and provided, also, that at any time during the exist- ence of corporations for profit, other than those of the character last hereinabove provided for, the number of the directors may be increased or diminished by a majority of the stockholders of the corporation to any number not exceeding eleven nor less than five, who must be members of the corporation; whereupon a certificate, stating the num- ber of directors, must be filed, as provided for in section two hundred and ninety-six for the filing of the original articles of incorporation." 5. Amended by Stats. 1891, p. 285, (1) in subd. 2, changing "framed" to "formed" (quaere, a correction?); (2) in subd. 5, adding a third pro- viso, at end of subdivision, which read the same as the proviso in the present section except that at the beginning of the proviso, it read: "Corporations formed or to be formed for social purposes and not directly for profit," instead of "corporation formed or to be formed for purposes other than profit." § 290a CIVIL CODE. 92 6. Amended hj- Stats. 1901, p. 322, in subd. 5, (1) in second line, omitting "nor more than eleven" after "less than five"; (2) at end of first proviso, changing (a) "nor" to "or" after "less than five" and (b) "stockholders" to "stockholder" (both either clerical or typo- graphical errors, probably) ; (3) in second proviso, changing "not ex- ceeding eleven nor less than five" to "not less than five." 7. Amended by Stats. 1905, p. 502, in subd. 5, (1) changing "five" to "three" after "less than," in all instances, (2) at end of first proviso, omitting "from" before "among the members"; the other changes being grammatical errors in the number of nouns. 8. Amended by Stats. 1907, p. 347; the code commissioner saying, "The change consists in the addition of all after the first sentence in subd. 6, providing for the classification of the capital stock into pre- ferred and common stock." 9. Amended by Stats. 1915, p. 1481. § 290a. Affidavit of corporations authorized to act as ex- ecutors, etc. Banking" corporations. Capital stock. Determi- nation of population. Approval of superintendent of banks. Before the secretary of state issues any certificate of incorpo- ration to any corporation, authorized in its articles of incor- poration to conduct the business of acting as executor, administrator, guardian of estates, assignee, receiver, deposi- tary, or trustee under appointment of any court or by author- ity of any law of this state, or as trustee for any purpose permitted by law, and before he files any amended articles of incorporation authorizing such purposes if the principal place of business of such corporation is in a city of which the popu- lation does not exceed one hundred thousand persons, there must be filed in his office the affidavit of all the directors of such corporation that at least one hundred thousand dollars of the capital stock has actually been subscribed and paid in in cash to a person named in such affidavit, for the conduct of such trust business and for the exclusive benefit and protec- tion of the creditors of such trust business, and if the principal place of business is in a city, the population of which exceeds one hundred thousand persons, there must be filed in his office the affidavit of all the directors of such corporation that at least two hundred thousand dollars of the capital stock has actually been subscribed and paid in in cash to a person named in such affidavit, for the conduct of such trust business and for the exclusive benefit and protection of the creditors of such trust business and before he issues any certificate of in- corporation to any corporation authorized in its articles of incorporation to engage in the business of banking, or of re- ceiving the money of others on deposit, there must in like mariner be filed the affidavit herein that a capital stock, as follows, has actually been subscribed, and paid in in cash to a person named in such affidavit, for the benefit of the corpo- ration : 290a. Corporations Authorized to Act as Executor, Etc., or to Engage in Business of Banl. corporations to act as executor," etc.: See post, Appendix, tit. "Cor- porations." Legislation § 2901 -o. Added by Stats. 1905, p. 251. § 291. Certain corporations to state further facts in articles. The articles of incorporation of any railroad, wagon-road, or telegraph organization must also state : 97 FORMATION OF CORPORATIONS. § 294 1. The kind of road or telegraph intended to be constructed ; 2. The place from and to which it is intended to be run, and all the intermediate branches ; 3. The estimated length of the road or telegraph line; 4. That at least ten per cent of the capital stock subscribed has been paid in to the treasurer of the intended corporation. Legislation § 291. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, vol. 2, p. 121. § 292. Subscription and acknowledgment of articles of in- corporation. The articles of incorporation must be suliscribed by three or more persons, a majority of whom must be residents of this state, and acknowledged by each before some officer au- thorized to take and certify acknowledgments or conveyances of real property. The signature of each person named in said articles of in- corporation as directors of such corporation shall be affixed to said articles of incorporation and aeknowledaed by each be- fore some officer authorized to take and certify acknowledg- ments of conveyances of real property. [Amendment ap- proved 1911; Stats. 1911, p. 1112.] Legislation § 292. 1. Enacted March 21. 1872, and then read: "The articles of incorporation must be subscribed by five or more persons, three of whom must be citizens of this state, and acknowledged by each before some officer authorized to take and certify acknowledg- ments of grants of real property." 2. Amended by Code Amdts.' 1873-74, p. 199, substituting (1) "a majority" for "three," (2) "residents" for "citizens," and (3) "convey- ances" for "grants." 3. Amended by Stats. 1905, p. 503, to read: "The articles of incor- poration must be subscribed by three or more persons, a majority of whom must be re.sidents of this state, and acknowledged by each before some officer authorized to take and certify acknowledgments or con- veyances of real property." 4. Amended by Stats. 1911, p. 1112. § 293. Prerequisite to filing- articles. Amounts to be sub- scribed to be fixed. Each intended corporation named in sec- tion two hundred and ninety-one, before filing articles of incor- poration, must have actually subscribed to its capital stock, for eacli mile of tlie contemplated work, the following amounts, to wit : 1. One thousand dollars per mile of railroads ; 2. One hundred dollars per mile of telegraph lines ; 3. Three hundred dollars per mile of wagon-roads. Legislation § 293. Enacted March 21, 1872; based on Stats. 1853 pp. 114, 169; Stats. 1861, p. 607. § 294. Prerequisite to filing- articles of corporations for profit. Before the articles of incorporation of any corporation Civ. Code— 7 -§ 296 CIVIL CODE. 98 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 subscribed. Legislation § 294. Enacted March 21, 1872; based on Stats. 1850, p. 370, §§ 156, 157. § 295. Oath of officer to subscription of stock and payment of ten per cent. Before the secretary of state issues to any such corporation a certificate of the filing of articles of incor- poration, there must be filed in his office an affidavit of the president, secretary, or treasurer named in the articles, that the required amount of the capital stock thereof has been actu- ally subscribed, and ten per cent thereof actually paid to a treasurer for the benefit of the corporation. Signing fictitious name: Pen. Code, § 557. Legislation § 295. Enacted March 21. 1872; based on Dannebroge Mining Co. v. Ailment, 26 Cal. 286; Mokelumne Hill Mining Co. v. Woodbury, 14 Cal. 424. The code commissioners say: "This provision, existing in many of our laws, is made applicable to all not purely religious or benevolent, or to promote education, art or literature." §296. Secretary of state to issue certificate of incorpora- tion. Not to file copy of copy. Upon filing the articles of incor- poration in the office of the county clerk of the county in which the principal business of the company is to be trans- acted, and a copy thereof certified by the county clerk Avith 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 re- quired statement of facts has been filed in his office, and thereupon the persons signing the articles and their associates and successors shall be a body politic and corporate by the name stated in the certificate, and for the term of fifty years, unless it is, in the articles of incorporation, otherwise stated, or in this code otherwise specially provided ; provided, how- . ever, that the secretary of state shall not file any copy of the copy of any articles, or issue any certificate of incorporation to any corporation, which articles set forth the corporate name of any corporation heretofore organized in this state, or file any copy of any articles, or issue any certificate of incorporation to any corporation existing at the time of filing said articles, which articles set forth a name so closely resem- bling the name of such corporation as will tend to deceive. The secretary of state shall issue and file in his office a dupli- cate of the certificate hereinabove provided for and copies thereof, duly certified by the secretary of state, shall have the same force and effect in evidence as the original. (Amend- ment approved 1915; Stats. 1915, p. 1039.) 296. Secretary of State to Issue Certificate of Incorporation; Not to File Copy of Copy. Upon filing the articles of incorpora- tion in the office [ ] of the secretary of state, and the affi- davit mentioned in the last section where such affidavit is re- quired, the secretary of state must issue to the corporation, over the great seal of the state, a certificate that [the original articles] containing the required statement of facts [have] been filed in his office, and thereupon the persons signing the articles and their associates and successors shall be a body politic and cor- porate by the name stated in the certificate, and for the term of fifty years, unless it is, in the articles of incorporation, otherwise stated, or in tliis code otherwise specially provided; [provided, however, that no corporation shall be authorized to transact any business until it shall have filed in the office of the county clerk of the county in which its principal business is to be transacted, a copy of its articles of incorporation certified by the secretary of state; provided, further,] that the secretary of state shall not file [the original articles of incorporation, or issue any certified copy thereof,] or issue any certificate of incorporation to any incorporation, which articles set forth the corporate name of any corporation heretofore organized in this [state, or] which articles set forth a name so closely resembling the name of such cor- poration as will tend to deceive. [ ] (in effect 90 days from and after April 29, 1921. Stats. 1921, Chap. 130.) ' Civ. Code, 1921. 39T. Copy of Articles Prima Facie Evidence. A copy of any articles of incorporation filed in pursuance [to] this chapter, and certified by the secretary of state, ( ] must be received in all the courts of this state and other places, as prima facie evi- dence of the facts therein stated. (In effect 90 days from and after April 29, 1921. Stats. 1921, Chap. 130.) Civ. Code, 1921. 99 FORMATION OF CORPORATIONS. § 297 Banking corporation cannot take name of friendly society: See Code Civ. Proc, § 1276. Legislation § 296. 1. Enacted March 21, 1872, and then read: "Upon the filing of the articles of incorporation in the office of the county clerk of the county in which the business of the company is to be transacted, and a copy thereof with the secretary of state, the secre- tary of state must issue to the corporation, over the great seal of the state, a certificate that such articles, containing the required statement of facts, have been filed in his office; and thereafter the persons sign- ing the same, and their associates and assigns, are a body politic and corporate, by the name stated in the certificate, and for the term of fifty years, unless it is in the articles of incorporation otherwise stated, or in this part otherwise specially provided." 2. Amended by Code Amdts. 1873-74, p. 199, and read like the section as adopted in 1901 (post) except that it did not contain the proviso added in 1901. See post. 3. Amended by Stats. 1901, p. 629, to read: "Upon filing the articles of incorporation in the office of the county clerk of the county in which the principal business of the company is to be transacted, and a copy thereof certified by the county clerk with the secretary of state, and the affidavit mentioned in the last section where such affi- davit is required, the secretary of state must issue to the corporation, over the great seal of the state, a certificate that a copy of the articles containing the required statement of facts has been filed in his office, and thereupon the persons signing the articles and their associates and successors shall be a body politic and corporate by the name stated in the certificate, and for the term of fifty years, unless it is, in the articles of incorporation, otherwise stated, or in this code otherwise specially provided; provided, however, that the secretary of state shall not file any copy of the copy of any articles, or issue any certificate of incorporation to any corporation, which articles set forth the corporate name of any corporation heretofore organized in this state, or file any copy of any articles, or issue any certificate of in- corporation to any corporation existing at the time of filing said arti- cles, which articles set forth a name so closely resembling the name of such corporation as will tend to deceive." 4. Amended by Stats. 1915, p. 1039. § 297. Copy of articles prima facie evidence. A copy of any articles of incorporation filed in pursuance of this chapter, and certified by the secretary of state, or by the county clerk of the county where the original articles shall have been filed, must be received in all the courts of this state, and other places, as prima facie evidence of the facts therein stated. [Amendment approved 1895; Stats. 1895, p. 30.] Legislation § 297. 1. Enacted March 21, 1872 (based on Stats. 1862, p. 199, § 3; Stats. 1853, p. 83, § 3; Stats. 1850, p. 370, § 158; Stats. 1861, p. 566, § 17), and then read: "A copy of any articles of incorporation filed in pursuance of this chapter, and certified by the secretary of state, must be received in all the courts and other places as primary evidence of the facts therein stated." 2. Amended by Code Amdts. 1873-74, p. 200, and then read as at present, except for the changes made in 1895. § 299 CIVIL CODE. 100 3. Ameuded by Stats. 1895, p. 30, inserting (1) "or by the county clerk of the county where the original articles shall have been filed," and (2) "of this state" after "in all the courts."' § 297a. Restoration of lost original articles of incorpora- tion. "Whenever the articles of incorporation of any corpora- tion have been, or may hereafter be, destroyed by conflagra- tion or other public calamity, a copy of the certified copy of the articles of incorporation of such corporation filed in the office of the secretary of state pursuant to the provisions of section two hundred and ninety-six of this code, duly certified by such secretary of state, may be filed in the office of the county clerk of the county where such articles of incorpora- tion were on file at the time of their loss or destruction. Any such copy filed pursuant to this section shall have the same force and effect as the document so lost or destroyed. Legislation § 297a. Added by Stats. 1906, p. S3. § 298. Who are members and who stockholders of a cor- poration. The owners of shares in a corporation Avhich has a capital stock are called stockholders. If a corporation has no capital stock, the corporators and their successors are called members. Who are stockholders: See post, § 322. Legislation § 298. Enacted March 21, 1872. § 299. When members die, successors to be elected. [Re- pealed 1874; Code Amdts. 1873-74, p. 200.] Legislation § 299. 1. Enacted March 21, 1872. 2. Repealed by Code Amdts. 1873-74, p. 200. § 299. Filing- articles of incorporation. No corporation hereafter formed must pui-ehase, locate, or hold property, in any county in this state, other than the county in Avhich its original articles of incorporation are filed, Avithout filing a copy of the copy of its articles of incorporation filed 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 Avhich such property is situated, within sixty days after such pur- chase or location is made. Every corporation now in exist- ence, whether formed under the provisions of this code or not, must, Avithin ninety days after the passage of this section, file such certified copy of the copy of its articles of incorporation in the office of the county clerk of every county in this state in which it holds any property, except the county where the original articles of incorporation are filed ; and if any corpora- tion hereafter acquires any property in a county other than that in which it now holds property, it must, within ninety days thereafter, file Avith the clerk of such county such cer- 299. Filing Articles of Incorporation. No corporation here- after formed must purchase, locate, or hold property In any county in the Tstate without] filing- a certified copy of its articles of incorporation filed in the office of the secretary of [state with] the county clerk of the county in which such property is situ- ated, within sixty days after such purchase or location is made. Every corporation [now existing] whether formed under the pro- visions of this code or not, must, within ninety days after the passage of this section, [file a copy] of the copy of its articles of incorporation [filed] in the office of the [secretary of state, duly certified by the secretary of state in the office of the] county clerk of every county in the state in which it holds any property, except [where certified copies have heretofore been filed, or where original articles are on file under an act in force at the time of filing thereof;] and if any corporation hereafter acquires any property in a county other than that in which it [holds property,] it must within ninety days thereafter file with the clerk of [said] county, such certified copy of the copy of its articles of incorporation [, or if incorporated after the passage hereof, a certified copy of the original articles of Incorporation filed in the office of the secretary of state]. The copies filed with the several county [clerks, have] the same force and effect in evidence as the originals. Any corjSforation failing- to comply with the provisions of this section cannot maintain or defend any action or proceeding in relation to such property, its rents, issues, or profits, until such [certified copy of its] articles of [incorporation are filed] at the places directed by the general law and this section; provided, that all corporations are liable in damages for any and all loss that may arise by the failure of such corporation to perform any of the foregoing duties within the time mentioned in this section; and provided, further, that the said damages may be recovered in an action brought in any court of this state of competent jurisdiction, by any party or parties suffering the same. (In effect 90 days from and after April 29, 1921. Stats. 1921, Chap. 130.) Civ. Code, 1921. 101 FORMATION OF CORPORATIONS. § 299 tified copy of the copy of its articles of incorporation. The copies filed with the several county clerks, and certified copies thereof, have the same force and effect in evidence as the origi- nals. Any corporation failing to comply with the provisions of this section cannot maintain or defend any action or pro- ceeding in relation to such property, its rents, issues, or profits, until such articles of incorporation, and such certified copy of its articles of incorporation, and such certified copy of the copy of its articles of incorporation, are filed at the places directed by the general law and this section; provided, that all corpora- tions are liable in damages for any and all loss that may arise by the failure of such corporation to perform any of the fore- going duties M-ithin the time mentioned in this section ; and provided further, that the said damages may be recovered in an action brought in any court of this state of competent juris- diction, by any party or parties suffering the same. [Amend- ment approved 1905 ; Stats. 1905, p. 556.] Right to purchase real and personal estate: See post, § 354. Legislation § 299. 1. Added by Code Amdts. 1875-76, p. 71, and then read: "Xo corporation hereafter formed under the provisions of this chapter shall purchase, locate, or hold property in any county of this state, without filing a certified copy of the certificate of its articles of incorporation 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, and every corporation now in existence must, within ninety days after the passage of this act, file a certified copy of the certificate of its articles of incorporation as provided in this section, and a certified copy of such copy shall, as evidence, have the same force and effect as a certified copy of the original. Any corporation failing to comply with the provisions of this section shall not main- tain or defend any action or proceeding in relation to such property." 2. Amended by Code Amdts. 1877-78, p. 76, and then read: "No cor- poration hereafter formed shall purchase, locate, or hold property in any county in this state without filing a copy of the copy of its articles of incorporation filed in the office of the secretar}' of state, duly cer- tified 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 corporation now in exist- ence, whether formed under provisions of this code or not, must, within ninety days after the passage of this section, file such certified copy of the copy of its articles of incorporation in the office of the county clerk of every county in this state in which it holds any property, and if any such corporation hereafter acquires any property in a county other than that in which it now holds property, it must, within ninety days thereafter, file with the clerk of such county such certified copy of the copy of its articles of incorporation. The copies 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 defend any action or proceeding in relation to such property, its rents, issues, or profits. Any corporation which has not heretofore filed a certified copy of the certificate of its articles of in- corporation may avail itself of the provisions of this act witli the § 300 CIVIL CODE. 102 same effect as if it had filed such certified copy of such certificate; provided, that this act shall not affect any pending litigation, or any suit now pending in court." 3. Amended by Code Amdts. 1880, p. 13, and then read as at present, except for the changes made in 1905. 4. Amendment by Stats. 1901, p. 344; unconstitutional. See note, § 4, ante. 5. Amended by Stats. 1905, p. 556, (1) in first sentence, (a) changing "shall" to "must" before "jjurchase," and "of" to "in" before "this state," (b) adding, after "this state," the words "other than the county in which its original articles of incorporation are filed"; (2) in sen- tence beginning "Everj^ corporation," changing (a) "acquire" to "ac- quires" before "any property," and (b) "any" to "a" before "county"; (3) in sentence beginning "The copies," omitting (a) "so" before "filed," (b) "shall" before "have the same," and (c) "would" before "the originals"; (4) in sentence beginning "Any corporation," chan- ging (a) "shall not" to "cannot" before "maintain," and (b) "shall be" to "are" before "filed" and before "liable." § 300. Capital stock of banking corporations. Dividends. Every corporation that has been or may be created under the general laws of this state, doing a banking business therein, and which has no capital stock, may elect to have a capital stock, and may issue certificates of stock therefor, in the same manner as corporations formed under the provisions of chap- ter one, article one, of the Civil Code, relating to the forma- tion of corporations; provided, that no such corporation shall use or convert any moneys or funds theretofore belonging to it, or under its control, into capital stock ; but such funds or moneys must be held and managed only for the purposes and ill the manner for w^hich they were created. Before such change is made, a majority of the members of such corpora- tion present at a meeting called for the purpose of considering the proposition whether it is best to have a capital stock, its amount, and the number of shares into which it shall be 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 such meeting, and its object, must be given by the president of such corporation, by publication in some newspaper printed and published in the county, or city and county, in which the prin- cipal 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 no- tice calling the meeting, the proof of its publication, the amount of capital actually subscribed, and by whom, all duly certified by the president and secretary of the corporation, must be filed in the offices of the secretary of state and clerk of the county where the articles of incorporation are filed. 103 BY-LAWS, DIRECTORS, ELECTIONS AND MEETINGS. § 300a Thereafter such corporation is possessed of all the rights and powers, and is subject to all the obligations, restrictions, and limitations, as if it had been originally created with a capital stock; and provided further, that no bank in this state shall ever pay any dividend upon so-called guaranty notes, nor upon any stock, except upon the amount actually paid in money into said capital upon such stock, and any payment made in vio- lation of this provision shall render all officers and directors consenting to the same jointly and severally liable to the depositors to the extent thereof. Act regulating business of banking: See post, Appendix, tit. "Bank- ing." Legislation § 300. Added by Code Amdts. 1877-78, p. 77. § 300a. Change of name ; filing- copy of decree. Every cor- poration which has changed its name under the provisions of sections one thousand two hundred and seventy-five, one thou- sand two hundred and seventy-six, one thousand two hundred and seventy-seven, one thousand two hundred and seventy- eight, and one thousand two hundred and seventy-nine of the Code of Civil Procedure, must file in the office of secretary of state and in the office of the county clerk of each county in which the original articles or certified copies thereof are re- quired by law to be filed, a certified copy of the decree of the court changing such name. [Amendment approved 1909; Stats. 1909, p. 973.] Change of name by corporation: See Code Civ. Proc, § 1276. Legislation § 300a. 1. Added by Stats. 1903, p. 256, and then read: "Every corporation which has clianged its name under the provisions of sections 1275, 1276, 1277, 1278 and 1279, of the Code of Civil Pro- cedure, must file in the office of the secretary of state, a certified copy of the decree of the court, changing such name." 2. Amended by Stats. 1909, p. 973. ARTICLE IL By-Laws, Directors, Elections, and Meetings. § 301. Adoption of by-laws, when, how, and by whom. § 302. Election of directors; notice of. § 302a. Financial statement to stockholders upon request of 10 per cent. § 303. By-laws may provide for what. § 304. By-laws to be copied and open to public inspection. Amendment of. § 305. Powers of directors of corporations. § 306. Directors must be elected and by-laws adopted at first meeting. [Repealed.] § 307. Elections, how conducted. § 308. Organization of board of directors, etc. § 309. Dividends to be made from surplus profits. Increase and reduc- tion of capital stock. § 310. Removal of directors. §311. Justice of the peace may order meeting when. § 301 CIVIL CODE. 104 §312. Corporations; election in, majority of stock must be represented; election set aside, when and by whom. § 313. Stock of minors, insane, etc., how represented. § 314. Election may be postponed. § 315. New election may be ordered by the court. § 316. False certificate, report, or notice to make officers liable. § 317. Stockholders' waiver of notice of meetings. § 318. Proceedings at meeting to be binding. § 319. Meetings, where held. § 320. Special meetings, how called. § 320a. Waiver of notice of corporation meeting. § 321. Certain books to be open for inspection. § 321a. Corporation may change its principal place of business. § 321b. Voting at stockholders' meetings. Proxy. Eevocation. § 301. Adoption of by-laws, when, how, and by whom. Every corporation formed under this title must, within one month after filing articles of incorporation, adopt a code of by-laws for its government not inconsistent with the constitu- tion and laws of this state. The assent of stockholders repre- senting a majority of all the subscribed capital stock, or of a majority of the members, if there be no capital stock, is neces- sary to adopt by-laws, if they are adopted at a meeting called for that purpose ; and in the event of such meeting being called, two weeks' notice of the same by advertisement in some newspaper published in the county in which the prin- cipal place of business of the corporation is located, or if none is published therein, then in a paper published in an adjoining county, must be given by order of the 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, shall be effectual to adopt a code of by-laws without a meeting for that purpose. [Amendment approved 1874; Code Amdts. 1873-74, p. 200.] Repeal and amendment of by-laws: Post, § 301. Legislation § 301. 1. Enacted March 21, 1872 (based on Stats. 1850, p. 34S. §7; Stats. 1862, p. 540, § 3; Stats. 1861, p. 85, § 4), and then read: "Every corporation formed under this title must, at a meeting of its stockholders or members, to be held within one month after filing articles of incorporation, adopt a code of by-laws for its govern- ment not inconsistent with the constitution and laws of this state. Notice of such meeting, by order of the acting president, specifying its object, must be published two weeks in some newspaper published in the county where the meeting is to be held; or if none is published therein, then in a paper published in an adjoining county. In the adoption of the by-laws, each stockholder has as many votes as he holds shares of stock; if there is no capital stock, each member has one vote. A majority of all the subscribed capital stock, or of the members, if there is no capital stock, is necessary to adopt the by-laws, or anv one of them." 2. Amended by Code Amdts. 1873-74, p. 200. 3. Amendment by Stats. 1901, p. 344; unconstitutional. See note, § 4, ante. 105 BY-LAWS, DIRECTORS, ELECTIONS AND MEETINGS. § 302a § 302. Election of directors; notice of. The directors of a corporation must be elected annually by the stockholders or members, and if no provision is made in the by-laws for the time of election, the election must be held on the first Tuesday in June. Notice of such election must be given as prescribed in section three hundred [and] one, unless all of the stock- holders waive such notice in writing. [Amendment approved 1909; Stats. 1909, p. 48.] Postponing election: Post, § 314. Legislation § 302. 1. Enacted March 21, 1872; based on Stats. 1850, p. 347, § 7; 18.53, p. 102, § 11; 1861, p. 607; 1869-70, p. 577, § 1. 2. Amendment by Stats. 1901, p. 343; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1905, p. 557, omitting "and the right to vote determined" before "as prescribed in section 301"; the code commis- sioner saying, "The right to vote is controlled by § 307." 4. Amended by Stats. 1909, p. 48, adding "unless all of the stock- holders waive such notice in writing." § 302a. Financial statement to stockholders upon request of 10 per cent. Upon the written request of not less than ten per cent of the stockholders, presented not less than two weeks prior to the time of the election provided for by section three hundred two of this code, there must be served upon each stockholder, at least one week prior to such election, one copy of a financial statement of the affairs of the corpora- tion, which must show the authorized capital stock of the corporation, the amount of capital stock subscribed, the amount of capital actually paid in, the assets and the surplus and undivided profits of the corporation, the amount paid to employees, the names and addresses of all the officers and directors of the corporation, the amount of mortgages, bonded or other indebtedness of the corporation and the amount of the last annual, semi-annual or quarterly dividend, and a gen- eral summary of the business transacted by the corporation since the last preceding annual meeting. The financial state- ment herein referred to shall be signed by the president and secretary of the corporation and shall be sworn to by such officers before some officer authorized by law to administer oaths, and must be personally served upon each stockholder or, in lieu of personal service, must be sent by mail addressed to each stockholder at his place of residence if known, or if not known, at the place where the principal office of the cor- poration is situated. The president or secretary of any cor- poration who with intent to deceive shall sign a false finan- cial statement shall be deemed guilty of a misdemeanor. Legislation § 302a. Added by Stats. 1915, p. 1271. § 303 CIVIL CODE. 106 § 303. By-laws may provide for what. A corporation may, by its by-laws, Avhere no other provision is specially made, pro- vide for: 1. The time, place, and manner of calling and conducting its meetings, and may dispense with notice of all regular meetings of stockholders or directors. 2. The number of stockholders or members constituting a quorum. 3. The mode of voting by proxy. 4. The qualifications and duties of directors, and also the time of their annual election, and the mode and manner of giving notice thereof. 5. The compensation and duties of officers. 6. The manner of election and tenure of office of all officers other than the directors ; and, 7. Suitable penalties for violations of by-laws, not exceed- ing in any case one hundred dollars for any one offense. 8. The newspaper in which all notices of the meetings of stockholders or board of directors, notice of which is required, shall be published, Avhich must be some newspaper published in the county where the principal place of business of the corporation is located, or if none is published therein, then in a newspaper published in an adjoining county; provided, that when the by-laws prescribe the newspaper in which said pub- lication shall be made, if from any cause at the time any pub- lication is desired to be made, the publication of such news- paper shall have ceased, the board of directors may, by an order entered on the records of the corporation, direct the publication to be made in some other ncAvspaper published in the county, or if none is published therein, then in an ad.join- ing county. [Amendment approved 1889; Stats. 1889, p. 365.] By-laws of: Post. §§ 305, 308, 323, 344, 599. Quorum, provision for: See post, § 312. Legislation § 303. 1. Enacted March 21, 1872 (based on Stats. 1850, p. 347, § 7), and then read: "A corporation may, by its by-laws, where no other provision is specially made, provide: 1. The time, place, and manner of calling and conducting their meetings; 2. The number of stockholders or members, or the quantity of stock constituting a quorum; 3. The number of shares which entitles the stockholders re- spectively to one or more vot^s; 4. The mode of voting by proxy; 5. The time and place of the annual election for directors, and the mode and manner of giving notice thereof; 6. The mode of selling shares for the non-payment of assessments or installments; 7. The com- pensation and duties of officers; 8. The tenure of office of subordinate officers; and, 9. Suitable penalties for violations of by-laws, not ex- ceeding, in any case, one hundred dollars for any one offense." 2. Amendedby Code Amdts. 1873-74, p. 201, and then read: "A cor- poration may, by its by-laws, whore no other provision is specially made, provide for: One. The time, place, and manner of calling and 107 BY-LAWS, DIRECTORS, ELECTIONS AND MEETINGS. § 304 conducting its meetings. Two. The number of stockholders or mem- bers constituting a quorum. Three. The mode of voting by proxy. Four. The time of the annual election for directors, and the mode and manner of giving notice thereof. Five. The compensation and duties of officers. Six. The manner of election and the tenure of office of all officers other than the directors; and, Seven. Suitable penalties for violations of by-laws, not exceeding, in any case, one hundred dol- lars for any one offense." 3. Amended by Stats. 1889, p. 365. 4. Amendment by Stats. 1901, p. 345; unconstitutional. See note, § 4, ante. § 304. By-laws to be copied and open to public inspection. Amendment of. All by-laws adopted must be certified by a majority of the directors and secretary of the corporation, and copied in a legible hand, in some book kept in the office of the corporation, to be known as the "book of by-laws," and the book must then be open to the inspection of the public during office hours each day except holidays. The by-laws may be re- pealed or amended, or new by-laws may be adopted, at the annual meeting, or at any other meeting of the stockholders or members, called for that purpose by the directors, by a vote representing two thirds of the subscribed stock, or by two thirds of the members. The written assent of the holders of two thirds of the stock, or two thirds of the members if there is no capital stock, is effectual to repeal or amend any by-law, or to adopt additional by-laws. The power to repeal and amend the by-laws, and adopt new by-laws, may, by a similar vote at any such meeting, or similar written assent, be dele- gated to the board of directors. The power, when delegated, may be revoked by a similar vote, at any regular meeting of the stockholders or members. AVhenever any amendment or new by-law is adopted, it must be copied in the book of by- laws with the original by-laws, and immediately after them. If any by-law is repealed, the fact of repeal, with the date of the meeting at which the repeal was enacted, or written assent was filed, must be stated in said book. Until copied or stated as hereinbefore required, no by-law, nor any amendment or repeal thereof, can be enforced against any person, other than the corporation, not having actual notice thereof. [Amendment approved 1905; Stats. 1905, p. 557.] Legislation § 304. 1. Enacted March 21, 1872, and then read: "All by-laws adopted must be certified by the officers of the corporation, and filed and recorded in the recorder's office of the county where the principal place of business of the corporation is located. The by-laws thus adopted must not be altered or amended, except at a special meet- ing of the stockholders or members, to be called by the directors for that purpose, specifying in the order the proposed amendments; and a two-third vote of all the subscribed capital stock, or of the mem- bers, is necessary to adopt the same. And the amendments thus § 304 CIVIL CODE. 108 adopted must be certified aud recorded iii the same manner as the original by-laws." 2. Amended by Code Amdts. 1873-74, p. 201, and then read: "All by-laws adopted must be certified by a majority of the directors and secretary of the corporation, and copied in a legible hand in some book kept in the office of the corporation, to be known as the 'Book of By-Laws,' and no by-law shall take effect until so copied, and the book shall then be open 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 members, called for that purpose by the directors, by a vote representing two thirds of the subscribed stock, or by two thirds of the members; or the power to repeal and amend the by-laws, and to adopt new by-laws, may, by a similar vote at any such meeting, be delegated to the board of directors. The power when delegated may be revoked by a similar vote, at any regu- lar meeting of the stockholders or members. Whenever any amend- ment or new by-law is adopted, it shall be copied in the book of by- laws with the original 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 en- acted, shall be stated in the said book, and until so stated, the repeal shall not take effect." 3. Amended by Stats. 1885, p. 130, (1) in first sentence, changing "open" to "opened" before "to the inspection" (evidently a clerical or t-ypographical error, although the code commission in 1901 adopt this form of the word); (2) after the words "two thirds of the members." in sentence beginning "The by-laws," the section reading, "The written assent of the holders of two thirds of the stock, or two thirds of the members if there be no capital stock, shall be effectual to repeal or amend any by-law, or to adopt additional by-laws. The power to repeal and amend the by-laws, and adopt new by-laws may, by a simi- lar vote at any such meeting or similar written assent, be delegated to the board of directors. The power, when delegated, may be revoked by a similar vote, at any regular meeting of the stockholders or mem- bers. Whenever any amendment or new by-law is adopted, it shall be copied in the book of by-laws with the original by-laws, and imme- diately after them, and shall not take effect until so copied. If any by-law be repealed, the fact of repeal, with the date of the meeting at which the repeal was enacted, or written assent was filed, shall be stated in said book, and until so stated the repeal shall not take effect." 4. Amendment by Stats. 1901, p. 345; unconstitutional. See note, § 4, ante. 5. Amended by Stats. 1905, p. 5-57; the code commissioner saying. "The provisions of the section, declaring that no by-law or any amend- ment thereof shall take effect until copied in the book of by-laws, are amended so as to permit by-laws and amendments thereof, which have been duly passed, to be treated as valid and enforceable against the corporation and persons having notice thereof, regardless of whether or not they have been copied into the proper book. It has often hap- pened that by-laws have been published and generally acted upon by the corporation, and by others, and thereafter their effect has been sought to be avoided on account of the failure of the proper officer to perform his duty of copying them as the code directs. The change consists in the addition of the last sentence." 109 BY-LAWS, DIRECTORS, ELECTIONS AND MEETINGS. § 305 § 305. Powers of directors of corporations. The corporate poAvers, business, and property of all corporations formed un- der this title must be exercised, conducted, and controlled by a board of not less than three directors, to be elected from among the holders of stock ; or where there is no capital stock, then from the members of such corporations; except that cor- porations formed or to be formed for the purpose of erecting and managing halls and buildings for the meetings and accom- modation of several lodges or societies of any benevolent or charitable order or organization, and in connection therewith, the leasing of stores and offices in such building or buildings for other purposes, the corporate powers, business, and prop- erty thereof may be conducted, exercised, and controlled by a board [of] not less than three [n]or more than fifty direc- tors, to be chosen from among the stockholders of such corpora- tion or from among the members of such order or organization, A majority of the directors must be in all cases residents of this state. Directors of corporations for profit must be hold- ers of stock therein to an amount to be fixed by the by-laws of the corporation. Directors of all other corporations must be members thereof. Unless a quorum is present and acting no business performed or act done is valid as against the cor- poration. Whenever a vacancy occurs in the office of director, unless the by-laws of the corporation otherwise provide, such vacancy must be filled by an appointee of the board. [Amend- ment approved 1905; Stats. 1905, p. 503.] Number of directors: See ante, § 305. Legislation § 305. 1. Enacted March 21, 1872 (based on Stats. 1853, p. 169, §§ 5, 7, 8; Stats. 1863-66, pp. 743, 752; Stats. 1850, p. 347, § 159, pp. 345, 347; Stats. 1850, p. 178, § 6; Stats. 1862, p. 199, § 6; Stats. 1863, p. 624, § 1), and then read: "The corporate powers, business, and prop- erty of all corporations formed under this title must be exercised, con- ducted, and controlled by a board of not less than five nor more than eleven directors, to be elected from among the holders of stock; or where there is no capital stock, then from the members of such corpo- ration. A majority of the directors must be citizens of this state. Directors of corporations for profit must be holders of stock therein in an amount to be fixed by the by-laws of the corporation. Directors of all other corporations must be members thereof. Unless a quorum is present and actinj^, no business performed or act done is valid as against the corporation. Whenever a vacancy occurs in the office of director, unless the by-laws of the corporation otherwise provide, such vacancy must be filled by an appointee of the board." 2. Amended by Code Amdts. 1875-76, p. 71, (1) inserting at end of first sentence, "except that corporations formed, or to be formed, for the purpose of erecting and managing halls and buildings for the meet- ings and accommodation of several lodges or societies of any benevo- lent or charitable order or organization, and in connection therewith the leasing of stores and oflHces in such building or buildings for other purposes, the corporate powers, business, and property thereof may be conducted, exercised, and controlled by a board of not less than five § 307 CIVIL CODE. 110 nor more than fifty directors, to be chosen from among the stockholders of such corporation or from among the members of such order or or- ganization," and (2) in second sentence, inserting "in all cases" before "citizens." 3. Amended by Stats. 1901, p. 308, and then read as at present, except for the changes made in 1905. 4. Amended by Stats. 1905, p. 503, (1) in first sentence, changing (a) "five" to "three" after "not less than," in both instances, and (b) omitting "of" before "not less than" in second instance; (2) in sentence beginning "A majority," changing "citizens" to "residents." § 306. Directors must be elected and by-laws adopted at first meeting-. [Kepealed 1889; Stats. 1889, p. 365.] Legislation § 306. 1. Enacted March 21, 1872. 2. Amended by Code Amdts. 1873-74, p. 202. 3. Repealed by Stats. 1889, p. 365. § 307. Elections, how conducted. All elections must be by ballot, and every stockholder shall have the right to vote in person or by proxy the number of shares standing in his name, as provided in section three hundred and twelve of this code, for as many persons as there are directors to be elected, or to cumulate said shares and give one candidate as many votes as the number of directors multiplied by the number of his shares of stock shall equal, or to distribute them on the same prin- ciple among as many candidates as he shall think fit. The provisions of this section, so far as it relates to cumulative vot- ing, shall apply to all corporations and associations doing business in this state, having a capital stock or shares of stock, and electing directors by a meeting. of stockholders held in this state, whether such corporations or associations are or- ganized under the laws of this state or not and no election for directors of any corporation or association, doing business in this state, and electing directors in this state, shall be valid, if the right of a stockholder to cumulate his shares as herein provided shall be denied. In corporations having no capital stock, each member of the corporation may cast as many votes for one director as there are directors to be elected, or may distribute the same among any or all the candidates. In any case the director receiving the highest number of votes shall be declared elected. The provisions of this section, so far as it relates to cumulative voting, shall not apply to literary, religious, scientific, social or benevolent societies, having no capital stock or shares unless it shall be so provided in their by-laws or rules. [Amendment approved 1903 ; Stats. 1903, p. 253.] Legislation § 307. 1. Enacted March 21, 1872, and then read: "All elections must be by ballot, and unless otherwise prescribed by the by-laws, a majority of the subscribed capital stock or of the members is necessary to a choice." Ill BY-LAWS, DIRECTORS, ELECTIONS AND MEETINGS. § 309 2. Amended by Code Amdts. 1873-74, p. 202, to read: "All elections of directors must be by ballot, and a vote of stockholders representing a majority of the subscribed capital stock, or of a majority of the members, is necessary to a choice. If there be capital stock in the corporation, each stockholder is entitled to one vote for each share held by him at all such elections, and also at all elections at other meetings of stockholders." 3. Amended by Code Amdts. 1877-78, p. 78, to read: "All elections must be by ballot, and every stockholder shall have the right to vote in person or by proxy the number of shares standing in his name, aS' provided in section three hundred and twelve of this code, for as many persons as there are directors to be elected, or to cumulate said shares and give one candidate as many votes as the number of directors mul- tiplied by the number of his shares of stock shall equal, or to dis- tribute them on the same principle among as many candidates as he shall think fit. In corporations having no capital stock, each member of the corporation may cast as may votes for one director as there are directors to be elected, or may distribute the same among any or all of the candidates. In either case, the directors receiving the highest number of votes shall be declared elected." 4. Amended by Stats. 1887, p. 95, adding a new sentence at end of section, reading, "The provisions of this section, so far as it relates to cumulative voting, shall not apply to literary, religious, scientific, social, or benevolent societies, unless it shall be so provided in their by-laws or rules." 5. Amended by Stats. 1903, p. 253. § 308. Organization of board of directors, etc. Immedi- ately after their election, the directors must organize by the election of a president, who must be one of their number, a secretary, and treasurer. They must perform the duties en- joined on them by law and the by-laws of the corporation. A majority of the directors is a sufficient number to form a board for the transaction of business, and every decision of a ma- jority of the directors forming such board, made when duly assembled, is valid as a corporate act. Legislation § 308. Enacted March 21, 1872; based on Stats. 1850, p. 347, § 159; Stats. 1850, p. 373, § 175; Stats. 1850. p. 375, § 189; Stats. 1853, p. 169, §4; Stats. 1861, p. 609, § 4; Stats. 1865-66, p. 743, § 4; Stats. 1865-66, p. 754, § 6. § 309. Dividends to be made from surplus profits. In- crease and reduction of capital stock. The directors of cor- porations must not make dividends, except from the surplus profits arising from the business thereof; nor must they create any debts beyond their subscribed capital stock ; nor must they divide, withdraw, or pay to the stockholders, or any of them, any part of the capital stock, except as hereinafter pro- vided, nor reduce or increase the capital stock, except as herein specially provided. For a violation of the provisions of this section, the directors under whose administration the same may have happened (except those who may have caused their dissent therefrom to be entered at large on the minutes of the §309 CIVIL CODE. 112 directors at the time, or were not present when the same did happen) are, in their individnal or private capacity, jointly and severally liable to the corporation, and to the creditors thereof, to the full amount of the capital stock so divided, withdrawn, paid out, or reduced, or debt contracted ; and no statute of limitation is a bar to any suit against such directors for any sums for which they are liable by this section; pro- vided, however, that where a corporation has been heretofore or may hereafter be formed for fhe purpose, among other things, of acquiring, holding, and selling real estate, Avater, and water rights, the directors of such corporation may, with the consent of stockholders representing two thirds of the capital stock thereof, given at a meeting called for that pur- pose, divide among the stockholders the land, water, or water rights so by such corporation held, in the proportions to which their holdings of such stock at the time of sifch division entitle them. All conveyances made by the corporation in pursuance of this section must be made and received subject to the debts of such corporation existing at the date of the conveyance thereof. Nothing herein prohibits a division and distribution of the capital stock of any corporation which remains after the payment of all its debts, upon its dissolution, or the expira- tion of its term of existence. [Amendment approved 1905; Stats. 1905, p. 558.] Increasing and diminishing capital stock: See post, § 359. Penalties: See Pen. Code, §§ 560, 563, 564, 569, 570. Actions against directors: See Code Civ. Proc, § 359. Legislation § 309. 1. Enacted March 21. 1872 (based on Stats. 1850, p. 348; Stats. 1861, p. 607, § 50; Stats. 1865-66, p. 747, § 12; Stats. 1865- 66, p. 757, § 13; Stats. 1861, p. 626, § 56; Stats. 1853, p. 89, §§ 13, 14), and then read: "The directors of corporations must not make dividends, except from the surplus profits arising from the business thereof; nor must they divide, withdraw, or pay to the stockholders, or any of them, any part of the capital stock; nor must they create debts bej'ond their subscribed capital stock, or reduce or increase the capital stock, except as hereinafter specially provided. For a viola- tion of the provisions of this section, the directors under whose admin- istration the same may have happened (except those who may have caused their dissent therefrom to be entered at large on the minutes of the directors at the time, or were not present when the same did hajjpen), are, in their individual and private capacity, jointly and severally liable to the corporation, and to the creditors thereof, in the event of its dissolution, to the full amount of the capital stock so divided, withdrawn, paid out, or reduced, or debt contracted; and no statute of limitations is a bar to any suit against such directors for any sums for which they are made liable by this section. There may, however, be a division and distribution of the capital stock of any corporation which remains after the payment of all its debts, upon its dissolution or the expiration of its term of existence." 2. Amended by Stats. 1891, p. 468, and differed from the amendment of 1905, (1) the first sentence then reading, "The directors of corpo- 309. Dividends to be Made ■from Surplus Profits; Increase and Reduction of Capital Stock. [Unless they shall have been first permitted or authorized so to do by the commissioner of corpora- tions,] directors of. corporations must not make dividends except from the surplus profits arising from the business thereof; nor must they create any debts Ijeyond their subscribed capital stock; nor must they divide, witlidraw, or pay to the stockholders, or anj- of them, any part of the capital stock, except as hereinafter piovided, nor reduce or increase the capital stock, except as [provided in section three hundred fifty-nine of this code.] For a violation of the provisions of this section, the directors under whose administration the same may have happened (except those who may have caused their dissent therefrom to be entered at large on the minutes of the directors at the time, or were not present when tiie same did happen) are, in their individual or private capacity, jointly and severally liable to the corporation, and to the creditors thereof, to the full amount of the capital stock so divided, withdrawn, paid out, or reduced or debt con- tracted. [ ] Nothing herein proliibits a division and distribution of the capital stock of any corporation which remains after the payment of all its debts, upon its dissolution, or the expiration of its term of existence. [Sec. 2. No right, cause of action, or liability now existing or any action or proceeding now pending, shall be affected by this act and such right, cause of action or liability may be enforced and such action or proceeding may be prosecuted in the same manner and with the same effect as if this act had not be^n passed; excepting only the liability of a director of a corporation heretofore incurred shall not exist in any case where, all of the debts and liabilities of the corporation to creditors having been paid, the capital stock divided, withdrawn, or paid out constituted all of the capital stock of the corporation and the same was paid out, withdrawn, or divided with the consent of all of the stock- holders to or among themselves.] (In effect 90 days from and after April 27, 1917. Stats. 1917, Chap. 521.) Civ. Code, 1917. 113 BY-LAWS, DIRECTORS, ELECTIONS AND MEETINGS. § 310 rations must not make dividends, except from the surplus profits aris- ing from the business thereof; nor must they divide, withdraw, or pay to the stockholders, or any of them, any part of the capital stock; nor must they create debts beyond their subscribed capital stock; nor must they divide, withdraw, or pay to the stockholders, or any[of]them, any part of the capital stock, except as hereinafter provided, nor reduce or increase the capital stock, except as herein specially provided"; (2) the sentence beginning "For a violation" having (a) "and" instead of "or" before "private capacity," (b) the words "in the event of its dissolution" before "to the full amount," (c) "limitations" instead of "limitation" after "statute of," and (d) "would" before "entitle them" at end of sentence; (3) the final sentence then having as the first words "Nothing herein shall prohibit" instead of "Nothing herein prohibits." 3. Amendment by Stats. 1901, p. 346; unconstitutional. See note, § 4, ante. 4. Amended by Stats. 1905, p. 55S, making the changes noted supra, in the amendment of 1891; the code commissioner saying, "The reason for the omission of the words first above alluded to [q. v., quoted supra, amendment of 1891] is that by some clerical error they occur twice in the' section. The words 'in the event of its dissolution' are omitted because their presence makes it impossible to enforce the lia- bility against the directors unless the corporation is first dissolved, which could not have been the intention of the legislature." § 310. Removal of directors. The board of directors may be removed from office by a vote of two thirds of the menibers or of stockholders holding two thirds of the capital stock, at a general meeting held after previous notice of the time and place, and of the intention to propose such removal. Meet- ings of stockholders for this purpose may be called by the president, or by a majority of the directors, or by members or stockholders holding at least one half of the votes. Such calls must be in writing, and addressed to the secretary, who must thereupon give notice of the time, place, and object of the meeting, and by whose order it is called. If the secretary re- fuses to give the notice, or if there is none, the call may be addressed directly to the members or stockholders, and be served as a notice, in which case it must specify the time and place of meeting. The notice must be given in the manner provided in section three hundred and one of this title, unless other express provision has been made therefor in the by-laws. In case the board of directors is so removed, a new board may be elected at the same meeting. [Amendment approved 1905 ; Stats. 1905, p. 558.] Legislation § 310. 1. Enacted March 21, 1872 (based on Stats. 1861, p. 610, §7), and then read: "No director shall be removed from office, unless by a vote of two thirds of the members, or of stockholders hold- ing two thirds of the capital stock, at a general meeting held after previous notice of the time and place, and of the intention to propose such removal. Meetings of stockliolders for this purpose may be called by the president, or by a majority of the directors, or by members or Civ. Code — 8 ^ 312 CIVIL CODE. 114 stockholders holding at least one half of the votes. Such calls must be in writing, and addressed to the secretary, who must thereupon give notice of the time, place, and object of the meeting, and by whose 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 members or stockholders, and be served as a notice, in which case it must specify the time and place of meeting. The notice must be given in the man- ner provided in section 301 of this title, unless other express provision has been made therefor in the by-laws. In case of removal, the vacancy may be filled by election at the same meeting." 2. Amenc^ment by Stats. 1901, p. 347; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1905, p. 558; the code commissioner saying, "The amendment, while it authorizes the removal of the whole board of directors by a two thirds vote of the members or stockholders, denies the power to remove less than the whole number by such vote. The reason for this is that by the system of cumulative voting sanc- tioned by section 307, a minority may obtain representation in the board of directors; if so, a director elected to represent a minority of one third ought not to be removed by the subsequent vote of the other two thirds, and the system of cumulative voting and minority repre- sentation thus made ineffective. The first sentence only is changed." § 311. Justice of the peace may order meeting when. Whenever, from any cause, there is no person authorized to call or to preside at a meeting of a corporation, any justice of the peace of the county where such corporation is estab- lished may, on written application of three or more of the stockholders or of the members thereof, issue a warrant to one of the stockholders or members, directing him to call a meet- •ing of the corporation, by giving the notice required, and the justice may, in the same warrant, direct such person to pre- side at such meeting until a clerk is chosen and qualified, if there is no other officer present legally authorized to preside thereat. The application of a number of stockholders less than three, but holding a majority of the capital stock, has the same effect as an application by three or more stockhold- ers or members. [Amendment approved 1905 ; Stats. 1905, p. 559.] Legislation § 311. 1. Enacted March 21, 1872 (based on Stats. 1850, p. 347), the section then being the first sentence of the present section. 2. Amendment by Stats. 1901, p. 347; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1905, p. 559, adding the last sentence, the code commissioner saying, "By the amendment proposed the holders of a majority of the stock, though their number is less than three, are authorized to apply to the justice to issue a warrant for an election. The change consists in the addition of tlie last sentence." § 312. Corporations ; election in, majority of stock must be represented ; election set aside, when and by whom. At all elections or votes had for any purpose in corporations formed for profit there must be a majority of the subscribed capital 115 BY-LAWS, DIRECTORS, ELECTIONS AND MEETINGS. § 312 stock or of the members represented, either in person or by proxy in writing; provided, that in all instances of corpora- tions formed for purposes other than profit the by-laws shall provide the number of members or stockholders that shall con- stitute a quorum for the transaction of business. Every per- son acting therein, in person or by proxy or representative, must be a member thereof or a stockholder, having stock in his own name on the stock-books of the corporation at least ten days prior to the election. Any vote or election had other than in accordance with the provisions of this article is void- able at the instance of absent or any stockholders or members, and may be set aside by petition to the superior court of the county where the same is held. Any regular or called meet- ing of the stockholders or members may adjourn from day to day, or from time to time, if for any reason there is not pres- ent a majority of the subscribed stock or members, or no elec- tion had, such adjournment and the reasons therefor being recorded in the journal of proceedings of the board of direc- tors. [Amendment approved 1907; Stats. 1907, p. 596.] Quorum, provision for: See ante, § 303, subcl. 2. Notice of meeting: See ante, § 302. Legislation § 312, 1. Enacted March 21, 1872 (based on Stats. 1861, p. 607, §§ 5, 6; Stats. 1853, p. 169, § 8), and then read: "At all elections or votes had for anj^ purpose there must be a majority of the sub- scribed capital stock, or of the members, represented, either in person or by proxy in writing. Every person acting therein, in person or by proxy or representative, must be a member thereof or a bona fide stockholder, having stock in his own name on the stock-books of the corporation at least ten days prior to the election. Any vote or elec- tion had other than in accordance with the provisions of this article is voidable at the instance of absent stockholders or members, and may be set aside by petition to the district court of the county where the same was held. Any regular or called meeting of the stockholders or members may adjourn from day to day, or from time to time, if for any reason there is not present a majority of the subscribed stock or members, or no election or majority vote had — such adjournment and the reasons thereof being recorded in the journal of proceedings of the board of directors." 2. Amended by Code Amdts. 1877-78, p. 79, (1) in sentence begin- ning "Any vote," (a) adding "(or any)" before "stockholders," and (b) changing "was" to "is" before "held" at end of sentence; (2) in final sentence, omitting "or majority vote" after "or no election." 3. Amendment by Stats. 1901, p. 347; unconstitutional. See note, § 4, ante. 4. Amended by Stats. 1905, p. 559 (approved March 21, 1905), (1) in sentence beginning "Every person," omitting "bona fide" before "stockholder"; (2) in sentence beginning "Any vote," (a) omitting the marks of parentheses from the words "or any," added in 1877-78, and (b) changing "district" to "superior" before "court"; the code commis- sioner saying, "For the purposes of election, a person appearing upon the books of the corporation to be a stockholder, should be permitted to vote, and election officers should not be vested with authority to § 314 CIVIL CODE. ■ 116 deny such a stockholder the right to vote or to claim that -for some reason he is not a bona fide stockholder. (See Smith v. S. F. & N. P. Ry. Co., 115 Cal. 584)"; this amendment being repealed in 1907 (Stats. 1907, p. 59G), there having been two amendments of § 312 in 1905 (for second of which, see infra). 5. Amended by Stats. 1905, p. 787 (approved March 22, 1905), and differed from the amendment of 1907, in that it had (1) in sentence beginning "Every person," marks of parentheses inclosing the words "in person or by proxy or representative," and (b) the words "bona fide" before "stockholder"; (2) in sentence beginning "Any vote," (a) marks of parentheses inclosing the words "or any" (added in 1877-78), and (b) "was" instead of "is" before "held" at end of sentence. 6. Amended by Stats. 1907, p. 596; the code commissioner saying, "The change in the amendment of this section, as api)roved March 21, , 1905, consisted in the substitution of the words 'superior court' in place of 'district court,' and in the omission of the words 'bona fide' before 'stockholder.' For the purpose of election, a person appearing upon the books of the corporation to be a stockholder should be permitted to vote, and election officers should not be vested with authority to deny such a stockholder the right to vote, or to claim that for some reason he is not a bona fide stockholder. (See Smith v. S. F. & N. P. Ry. Co., 115 Cal. 581.) On March 22, 1905, another act (not suggested by the commissioner) was apjiroved, superseding the act approved upon the day before. This act omitted some of the changes of the act of March 21, but made other changes. In the session of 1907, the section as approved March 21, 1905, was repealed, but the changes contained in it were incorporated into the amendment of the section, as approved March 22, 1905." § 313. Stock of minors, insane, etc., how represented. The shares of stock of an estate of a minor, or insane person, may be represented by his guardian, and of a deceased person by his executor or administrator, and, except when otherwise agreed, all shares of stock standing on the books of a corpora- tion in the name of any person as pledgee or trustee, may be represented or voted by such pledgee or trustee only when such pledgor or beneficial owner fails to represent and vote the same. [Amendment approved 1911; Stats. 1911, p. 318.] Legislation § 313. 1. Enacted March 21, 1872 (based on Stats. 1S61, p. 610, § S; Stats. 1861, p. 567, §§ 12, 13; Stats. 1853, p. 169, § 8; Stats. 1863, p. 89, §§ 11, 12; Stats. 1862, p. 199, § 23), and then read: "The shares of stock of an estate of a minor, insane or deceased person, may be represented at all elections and meetings of the corporation by the legal representative of the person holding the same." 2. Amended by Code Amdts. 1873-74, p. 203, to read: "The shares of stock of an estate of a minor, or insane person, may be represented by his guardian, and of a deceased person by his executor or adminis- trator." 3. Amended by Stats. 1911, p. 318. § 314. Election may be postponed. If from any cause an election does not take place on the day appointed by law or the by-laws, or otherwise, it may be held on any day there- after as is provided for in such by-laws, or to which such elec- tion may be adjourned or ordered by the directors. If an 117 BY-LAWS, DIRECTORS, ELECTIONS AND MEETINGS. § 315 election has not been held at the appointed time, and no ad- jonrned or other meeting' for the purpose has been ordered by the directors, a meeting may l)e called by the stockholders as provided in section three hundred and ten. [Amendment approved 1905; Stats. 1905, p. 559.] Legislation § 314. 1. Enacted March 21, 1872; based on Stats. 1850, p. 347, § 168; Stats. 1853, p. 88, § 6; Stats. 1862, p. 199, § 7; Stats. 1861, p. 610, § 8; Stats. 1863, p. 624, § 10. 2. Amendment by Stats. 1901, p. 34S; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1905, p. 559, (1) in first sentence, substituting "by-law or the by-laws, or otherwise," for "in the by-laws"; (2) omit- ting "of this article" at end of section; the code commissioner saying, "The design of the amendment is to extend the provisions of the sec- tion to all elections howsoever authorized." § 315. New election may be ordered by the court. Upon the application of any person or body corporate aggrieved by any election held by any corporate body, the superior court of the county 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 Avith right and justice. Upon filing the petition, and before any further proceedings are had under this section, five days' notice of the hearing must be given, under the direction of the court or the judge thereof, to the adverse party, or those to be affected therebv. [Amend- ment approved 1905; Stats. 1905, p. 560.] Legislation § 315. 1. Enacted March 21, 1872 (based on Stats. 1850, p. 347, §15), and then read: "Upon the application of any person or body corporate aggrieved by any election held by any corporate body, or any proceedings thereof, the district nudge of the district in which such election is held must proceed forthwith summarily to hear the allegations and proofs of the parties, or otherwise incjuire 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. Before any proceedings are had under this section, five days' notice thereof must be given to the adverse party, or to those to be affected thereby." 2. Amended by 'Code Amdts. 1877-78, p. 79. to read: "Upon the ap- plication of any person, or body corporate, 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 com- plaint, 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 any further proceedings are had under this section, fi^'e 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." 3. Amendment by Stats. 1901, p. HIS; nncon«titutiniial. See nole. § 4, ante. 4. Amended by Stats. 1905. p. 560. § 318 CIVIL CODE. 118 § 316. False certificate, report, or notice to make officers liable. Any officer of a corporation who willfully gives a certificate, or willfully makes an official report, public notice, or entry in any of the records or books of the corporation, concerning the corporation or its business, which is false in any material representation, shall be liable for all the damages resulting therefrom to any person injured thereby, and if two or more officers unite or participate in the commission of any of the acts herein designated, they shall be jointly and sev- erally liable. [Amendment approA^ed 1874; Code Amdts. 1873-74, p. 203.]. Liability of officer: Pen. Code, §§ 558, 564. Protection of stockholders. "An Act to protect stockholders and persons dealing with corporations in this state": See post, Appendix, tit. "Corporations." See also Pen. Code, § 564. Legislation § 316. 1. Enacted March 21, 1872 (based on Stats. 1861, p. 626, §55; Stats. 1865-66, p. 747, §16; Stats. 1853, p. 90, §19), and then read: "Any officer of a corporation who makes or gives a certifi- cate, official report, public notice, or entry in any of the records or books of the corporation, concerning the corporation or its business, which is false in any material representation, and who knew or had full opportunity to know the same to be false, is liable for all the debts of the corporation contracted while he was a stockholder or officer thereof; and if more than one violate the provisions of this sec- tion in concert, they are jointlv and severally liable." 2. Amended by Code Amdts. 1873-74, p. 203. § 317. Stockholders' v^^aiver of notice of meetings. "When all the stockholders or members of a corporation are present at any meeting however called or notified, and sign a written consent thereto on the records of such meetings, or if those not present sign in writing a waiver of notice of such meeting, which waiver is presented and made a part of the records of such meeting, the doings of such meeting are as valid as if had at a meeting legally called and noticed. [Amendment ap- proved 1909; Stats. 1909, p. 49.] Legislation § 317. 1. Enacted March 21, 1872 (based on Stats. 1850, p. 347, §10), and then read: "When all the stockholders or members of a corporation are present at any meeting, however called or noti- fied, and sign a written consent thereto on the record of such meeting, the doings of such meeting are as valid as if had at a meeting legally called and noticed." 2. Amended by Stats. 1909, p. 49. § 318. Proceedings at meeting to be binding. The stock- holders or members of such corporation, wlien so assembled, may elect officers to fill all vacancies then existing, and may act upon such other business as might lawfully be transacted at regular meetings of the corporation. Legislation § 318. Enacted March 21, 1872; based on Stats. 1S50. p. 347, § 11. 119 BY-LAWS, DIRECTORS, ELECTIONS AND MEETINGS. § 321 § 319. Meeting's, where held. The meetings of the stock- holders and board of directors of a corporation must be held at its office or principal place of business. Changing place of business: See post, § 322. Legislation § 319. Enacted March 21, 1872. § 320. Special meetings, how called. When no provision is made in the by-laws for regular meetings of the directors and the mode of calling special meetings, all meetings must be called by special notice in writing, to be given to each director by the secretary, on the order of the president, or if there be none, on the order of two directors. Legislation § 320. Enacted March 21, 1872. § 320a. Waiver of notice of corporation meeting. When all the directors of a corporation are present at any directors' meeting, however called or noticed, and sign a written consent thereto, on the record of such meeting, or if the majority of the directors are present, and if those not present sign in writing a waiver of notice of such meeting, which waiver is presented and made a part of the records of such meeting, the transactions of such meeting are as valid as if had at a meeting regularly called and noticed. Legislation § 320a. Added by Stats. 1915, p. 939. §321. Certain books to be open for inspection. Every cor- poration doing a banking business in this state must keep in its office, in a place accessible to the stockholders, depositors, and creditors thereof, and for their use, a book containing a list of all stockholders in such corporation, and the number of shares of stock held by each, and every such corporation must keep posted in its office, in a conspicuous place, accessible to the public generally, a notice, signed by the president or secretary, showing: First. The names of the directors of such corporation. Second. The number and value of shares of stock held by each director. The entries on such book and such notice shall be made and posted within twenty-four hours after any transfer of stocky and shall be conclusive evidence against each director and stockholder of the numl er of shares of stock held by each. The provisions of this section shall apply to all banking cor- porations formed or existing before twelve o'clock noon of the day on which this code took effect, as well as to those formed after such time. Legislation § 321. Added by Code Amdts. 1875-76, p. 72; approved .January 29, 1876. There was another § 321 enacted at the same session of the legislature, 1875-76; q. v., infra, the present § 321a. § 321b CIVIL CODE. 120 § 321a. Corporation may change its principal place of busi- ness. Every corporation that has been or may be created under the general laws of this state may change its principal place of business from one place to another in the same county, or from one city or county to anotlier city or county within this state. Before such change is made, the consent in writing, of the holders of two thirds of the capital stock of the cor- poration must be obtained and filed in its office. When such consent is obtained and filed, notice of the intended removal or change must be published, at least once a week, for three successive weeks, in some newspaper published in the county, wherein said principal place of business is situated, if there is one published therein; if not, in a newspaper of an adjoining county, giving the name of the county or city where it is situated and that to which it is intended to remove it. When- ever any such change is made, a copy of the resolution or ac- tion of 'the board of directors authorizing the same together with a copy of an affidavit of the pulilication above required, all duly certified by the president and secretary of the corpo- ration with the corporate seal affixed shall be filed in each office where the original articles of incorporation are, or any copy thereof is required to be filed. This section shall not be construed to require such consent, notice or publication in the case of any such removal from one location to another in tlie same city, town or village. [Amendment approved 1903 ; Stats. 1903, p. 254.] This section was formerly § 321. There being two sections of this number, it was ciianged to § 321a. LcFislation § 321a. 1. Added by Code Amdts. 1875-76, p. 73 (ap- proved April 3, 1876), as § 321. There was another § 321 enacted at the same session of the legislature, 187.0-76; q. v., supra. When added in 1875-76, the second sentence read, "Before such change is made, the consent in writing of the holders of two thirds of the capital stock must be obtained and filed in the office of the corporation"; the section then containing only the first three sentences, ending with the words "intended to remove it" 2. Amendment by Stats. 1901, p. 348, as § 321a; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 19G3, p. 2-54, adding the last two sentences. § 321b. Voting at stockholders' meetings. Proxy. Revoca- tion, At all meetings of stockholders of corporations organ- ized under the laws of this state, or in the case of corporations having no capital stock, then at all meetings of the members of such corporation, only the stockholders or members ac- tually present shall be entitled to vote on any proposition, including the election of directors and other officers of the corporation, unless proxies from absent or nonattending stock- holders or members shall be held by some person or persons 321a. Corporation May Change Its Principal Place of Busi- ness. Every corporation that has been or may be created under the general laws of this state may change its principal place of business from one place to another in the same county, or from one city or county to another city or county within this state. Before such change is made, the consent in writing, of the holders of two-thirds of the capital stock of the corporation must be obtained and filed in its office; [or if the corporation has no capital stock, then the consent in writing of two-thirds of the members thereof, must be obtained and filed in its office.] When sucli consent is obtained and filed, notice of the intended removal or change must be published, at least once a week, for three successive weeks, in srome newspaper published in the county, wherein said principal place of business is situated, if there is one published therein; if not, in a newspaper of an ad- joining county, giving the name of the county or city where it is situated and that to which it is intended to remove it. Whenever any such change is made, a copy of the resolution or action of the board of directors authorizing the game, together with a copy of an affidavit of the publication above required, all duly certi- fied by the president and secretary of the corporation with the corporate seal affixed, shall be filed in each office where the orig- inal articles of incorporation are, or any copy thereof is requii-ed to be filed. This section shall not be construed to require such consent, notice or publication in the case of any such removal from one location to another in the same city, town or village. (In effect !)0 days from and after April 27, 1917. Stats. 1917, Chap. 167.) Civ. Code, 1917. 321c. fNew.] Pooling or Voting Trust Agreements Between Stockholders of Cor'porations Organized for the Purpose of Market- ing Agricultural Products. Nothing contained in this article shall prevent t!,e execution of valid pooling or voting trust agreements by the stockholders of a corporation organized for the purpose of marketing agricultural products, and the principal business of which is the preparation for and the maiketing of such products, the majority of the stock of which is owned by producers of such products; and it shall be lawful for any number of the owners of the capital stock of such corporation, in order to prevent the cap- ital stock thereof from being controlled by interests hostile to such producers and to secure safe and prudent management of the cor- poration in the interestsi of the whole number of its stockholders, to enter into agreements with each other by which, for a definite period of time stated therein, the capital stock of such corpora- tion owned by them shall be voted as the owners of a majority of the stock represented by such agreement shall direct from time to time, or to enter into agreements by which the stock to which they shall be entitled shall be issued to trustees sielected from among the 'signers to be held and voted by such trustees for the period specified in and in accordance with the terms of said agree- ment, and the mutual promises of the several signers of any such agreement sihall be sufficient consideration for the making thereof. (In effect DO days fiom and after April 22, 1919. Stats. 1919, Chap. 79) Civil Code, 1919. I2i STOCK AND STOCKHOLDERS. § 322 present at such meeting and shall be executed in accordance with the provisions of this section. Every such proxy must be executed in writing by the member or stockholder himself, or by his duly authorized attorney. No proxy heretofore given or made shall be valid after the expiration of eleven months from the passage of this act, unless the member or stockholder executing it shall have specified therein the length of time for which such proxy is to continue in force, which must be for some limited period, and in no case to exceed seven years from the date of the execution of such proxy. No proxy hereafter to be given or made shall be valid after the expiration of eleven months from the date of its execution, unless the member or stockholder executing it shall have specified therein the length of time for which such proxy is to continue in force, which must be for some limited period, and in no case to exceed seven years from the date of the execution of such proxy. Every proxy shall be revocable at the pleasure of the person executing it ; but a corporation hav- ing no capital stock may prescribe in its by-laws the persons who may act as proxies for members, and the length of time for which such proxies may be executed. Executors, adminis- trators, guardians and trustees may give proxies. [Amend- ment approved 1913; Stats. 1913, p. 230.] Legislation § 321b. 1, Added by Stats. 1905, p. 22. 2. Amended by Stats. 1913, p. 230. The only change made by the amendment of 1913 consisted in the addition of the last sentence. CHAPTER II. Corporate Stock. Article I. Stock and Stockholders. §§ 322-329. II. Assessment of Stock. §§331-349. AETICLE I. Stock and Stockholders. § 322. Liability of stockholders. § 323. Certificates of stock, how and when issued. § 324. Transfer of shares of stock. Certain stock appurtenant to land. § 32.5. Transfer of shares held by married women, etc. Dividends pay- able to married women. § 326. Affidavit or bond may be required before transfer. § 327. Contract to relieve directors, void. § 328. Shares of stock, etc.; duplicates, how issued. § 329. Burned bonds, procedure to obtain duplicates. Form of summons. .Judgment. Indemnity. §322. Liability of stockholders. Each stockholder of a corporation is individually and personally liable for such pro- portion of all its debts and liabilities contracted or incurred § 322 CIVIL CODE. 122 during the time he was a stockholder as the amount of stock or shares owned by him bears to the whole of the subscribed capital stock or shares of the corporation. Any creditor of the corporation may institvite joint or several actions against any of its stockholders, for the proportion of his claim pay- able by each, and in such action the court must ascertain the proportion of the claim or debt for which each defendant is liable, and a several judgment must be rendered against each, in conformity therewith. If any stockholder pays his propor- tion of any debt due from the corporation, incurred while he Avas such stockholder, he is relieved from any further personal liability for such debt, and if an action has been brought against him upon such debt, it must be dismissed, as to him, upon his paying the costs, or such proportion thereof as may be properly chargeable against him. The liability of each stockholder is determined by the amount of stock or shares owned by him at the time the debt or liability was incurred; and such liability is not released by any subsequent transfer of stock. The term stockholder, as used in this section, ap- plies not only to such persons as appear by the books of the corporation to be such, but also to every eqiiitable owner of stock, although the same appears on the books in the name of another; and also to every person Avho has advanced the in- stallments or purchase-money of stock in the name of a minor, so long as the latter remains a minor ; and also to every guard- ian, or other trustee, who voluntarily invests a.ny trust funds in the stock. Trust funds in the hands of a guardian, or trus- tee, are not liable under the provisions of this section, by reason of any such investment ; nor must the person for whose benefit the investment is made be responsible in respect to the stock until he becomes competent and able to control the same ; but the responsibility of the guardian or trustee making the investment continues until that period. Stock held as col- lateral security, or by a trustee, or in any other representative capacity, does not make the holder thereof a stockholder within the meaning of this section, except in the cases above mentioned, so as to charge him with any proportion of the debts or liabilities of the corporation ; but the pledgor, or per- son or estate represented, is to be deemed the stockholder, as respects such liability. In a corporation having no capital stock, each member is individually and personally liable for an equal share of its debts and liabilities, and similar actions may be brought against him, either alone or jointly with other members, to enforce such liability as by this section may be brought against one or more stockholders, and similar judg- ments may be rendered. The liability of each stockholder of ered in such action, shall be considered as having been paid on his shares. r4. The liability of each stockholder of a corporation formed under the laws of any other state or territory of the United States, or of any foreign country, and doing business within this state, is the same as the liability of a stockholder of a corporation created under the constitution and laws of this state.] Any creditor of [a] corpoiation may [commence] joint or sev- eral actions against any of its stoclvliolders [or members] for the [amount op] proportion of his claim payable by each; and in such action the court must ascertain the [amount of the] proportion of the claim or debt for which each defendant is liable, and a several judgment must be rendered against each, in conformity therewith. [ ] The [terms "stockholder" and "member,"] as used in this section, applies not only to such persons as appear by the books of the corporation to be such, but also to every equitable owner of stock [or of a membership,] although the same appears on the books in the name of an- other; and also to every person who has advanced the install- ments or purchase money of stock [or a membership] in the name of a minor, so long as the latter remains a minor; and also to every guardian, or other trustee, who voluntarily invests any trust funds in the stock [or membership.] Trust funds in the hands of a guardian, or trustee, are not liable under the provisions of this section by reason of any such investment; nor must the person for whose benefit the investment is made be responsible in respect to the stock until he becomes compe- tent and able to control the same; but the responsibility of the guardian or trustee making the investment continues until that period. Stock held as collateral security, or by a trustee, or in any other representative capacity, does not make the holder thereof a stockholder within the meaning of this section, except in the cases above mentioned, so as to charge him with any proportion of the debts or liabilities of the corporation; but the pledgor, or person or estate represented, is to be deemed the stockholder, as respects such liability. [ ] [Sec. 2. This act shall take effect and be in force upon the approval and ratification by the people of an amendment to sec- tion three of article twelve of the constitution of this state submitted by the forty-second session of the legislature to the people; and if such amendment so submitted shall not be so approved and ratified, this act shall thereafter be void.] (In ef- fect 90 days from and after April 27, 1917. Stats. 1917, Chap. 568.) Civ. Code, 1917. 322. Liability of Stockholders. [Stocki-.clders of corporations siiall be liable for the payment of corporate debts and liabilities as follows:] [1.] Each stockholder of a corporation, [other than a corpora- tion hereafter organized under the laws of this state which shall adopt and use as the last word of its corporate name the word "Limited," or its abbreviation, "Ltd.,"] is individually and personally liable for such proportion of all its debts and liabili- ties contracted or incurred during the time he was a stockholder as the amount of stock or shares owned by him [at the time the debt or liability was incurred] bears to the whole of the subscribed capital stock or shares of the corporation; [and such liability is not released by any subsequent transfer of stock. If any stockholder pays his proportion of any debt due from the corporation, incurred while he was such stockholder, he is re- lieved from any further personal liability for such debt; and if an action has been bi'ought against him upon such debt, it must be dismissed as to him upon his paying the costs or such proportion thereof as may be properly chargeable against him. [2. In a corporation having no capital stock, each member is individually and personally liable for an equal share of its debts and liabilities. [3. In a corporation hereafter organized under the laws of this state, having a capital stock, and which shall adopt and use as the last word of its corporate name, the word "Limited," or its abbreviation, "Ltd.," if its subscribed and issued shares have not been fully paid, in money paid, labor done, or prop- erty actually received by the corporation, and the capital paid in shall be insufficient to satisfy its debts and obligations, each stockholder shall be liable to the creditors of the corporation for an amount equal to that not paid up on the shares held by him, or such proportion of that si m as shall be required to satisfy such debts and obligations: provided, that no judgment upon such liability shall be satisfied out of the property of such stockholder until judgment upon the debt or obligation upon which such liability is founded shall have been first entered against the corporation, and an execution thereon shall have been returned unsatisfied in whole or in part; and the enforce- ment of any judgment against the stockholder, and of any exe- cution levied thereunder, shall be stayed until such return shall have been made. Any stockholder in such corporation who shall pay any debt or obligation for which he is made liable by the provisions of this subdivision of this section, may recover the amount so paid in an action against the corporation, in which action only the property of the corporation shall be taken in satisfaction of any judgment obtained therein, and not the property of any stockholder. Any amount so paid by such stockholder, and not repaid to him by the corporation or recov- 123 Stock and stockholders. § 322 a corporation formed under the laws of any other state or ter- ritory of the United States, or of any foreign country, and doing business within this state, is the same as the liability of a stockholder of a corporation created under the constitution and laws of this state. [Amendment approved 1905; Stats. 1905, p. 396.] Who are stockholders: See ante, § 298. Act to protect stockholders from fraudulent representations of oflftcers: See post, Appendix, tit. "Corporations." Liability of stockholders for debts of corporation is declared in Const. 1879, art. xii, § 3. Legislation § 322, 1. Enacted March 21, 1872 (based on Stats. 1863, p. 766; Stats. 1865-66, p. 758, § 17; Stats. 1853, p. 87, §§ 16, 17; Const. 1849, art. iv, § 36), and then read: "Each stockholder, or member of any corporation is severally, individually, and personally liable for such proportion of all its debts and liabilities as the amount of stock or shares owned by him in such corporation bears to the whole of the subscribed capital stock or shares of the corporation, for the recovery of which joint or several actions may be instituted and prosecuted; and in any such action against any of the stockholders or members of a corporation, the court must ascertain and determine the proportion of the debt which is the subject of the suit for which each of the stock- holders or members who are defendants in the action are severally liable, and judgment must be given severally in conformity therewith. If any stockholder or member of a corporation pays his proportion of any debt due by such corporation, he is released and discharged from any further individual or personal liability for such debt. Stock held as collateral security, or by a trustee, or in any other representative capacity, does not make the holder thereof a stockholder, but the pledgor or person or estate represented is the stockholder." 2. Amended by Code Amdts. 1873-74, p. 203, (1) the first sentence then reading, "Each stockholder of a corporation is individually and personally liable for such proportion of its debts and liabilities as the amount of stock or shares owned by him bears to the whole of the subscribed capital stock or shares of the corporation, and for a like proportion only of each debt or claim against the corporation"; (2) thereafter the section differed from the amendment of 1905, in that it had (a) in sentence beginning "If any stockholder," "shall" instead of "must" before "be dismissed"; (b) in sentence beginning "The term," "shall apply" instead of "applies" before "not only," and "appear" instead of "appears" before "on the books"; (c) in sentence beginning "Trust funds," "shall not be" instead of "are not" before "liable," "shall" instead of "must" before "the person," and "shall continue" instead of "continues" at end of sentence; (d) as first words of final sentence, "In corporations" instead of "In a corporation," and "his proportion" instead of "an equal share" before "of its debts"; (e) but did not contain the final sentence, which was added in 1875-76. 3. Amended by Code Amdts. 1875-76, p. 73, the only change from the amendment of 1873-74 being the addition of the final sentence, which differed from the amendment of 1905 in having the words "shall be" instead of "is" before "the same as the liability." 4. Amendment by Stats. 1901, p. 349; unconstitutional. See note, § 4, ante. 5. Amended by Stats. 1905, p. 396, the changes made being noted supra, in amendments of 1873-74 and 1875-76; the code commissioner § 324 ' CIVIL CODE. 124 saying in his note, '"The change consists in the substitution of the lan- guage of the first sentence of § 3 of art. xii of the constitution in place of the first sentence of the present section. As the section now stands [formerly stood], it is believed to be unconstitutional. (See Larrabee V. Baldwin, 35 Cal. 155.)" § 323. Certificates of stock, how and when issued. All cor- porations for profit must issue certificates for stock when fully paid up, signed by the president and secretary, and may provide, in their by-laws, for issuing certificates prior to full payment, under such restrictions and for such purposes as their by-laws may provide, but any certificate issued prior to full payment must show on its face what amount has been paid thereon. All certificates of stock issued by corporations authorized T5y their articles of incorporation to issue stocks of dift'erent classes, shall express upon their face the character of stock represented by said certificates. The said certificates shall also state the number of shares of stock of each class which said corporation is authorized to issue, and the said certificates shall also contain a statement of the nature and extent of the preference granted to the preferred stock. [Amendment approved 1907- Stats. 1907, p. 348.] Legislation § 323. 1. Enacted March 21, 1872; based on Stats. 1861, p. 614, § 14. 2. Amendment by Stats. 1901, p. 350; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1905, p. 348, (1) omitting "the" before "full payment," and (2) adding "but any certificate issued prior to full pay- ment must show on its face what amount has been paid thereon"; the code commissioner saying of the addition, "The object being to require a certificate issued prior to full payment to show the amount paid thereon." 4. Amended by Stats. 1907, p. 348, adding the last two sentences; the code commissioner saying, "to cover cases of the issuance of pre- ferred and common stock." §324. Transfer of shares of stock. Certain stock appur- tenant to land. Whenever the capital stock of any corpora- tion is divided into shares, and certificates therefor are issued, such shares of stock, except as hereinafter provided, are per- sonal property, and may be transferred by indorsement by signature of the proprietor, his agent, attorney, or legal repre- sentative, and the delivery of the certificate ; but such transfer is not valid, except as to the parties thereto, until the same is so entered upon the books of the corporation as to show the names of the parties by whom and to whom transferred, the number of the certificate, the number or designation of the shares, and the date of the transfer; provided, however, that any corporation organized for, or engaged in the business of selling, distributing, supplying, or delivering water for irriga- tion purposes or for domestic use, may in its by-laws provide 125 STOCK AND STOCKHOLDERS. § 325 that water shall only be so sold, distributed, supplied, or de- livered to owners of its capital stock, and that such stock shall be appurtenant to certain lands when the same are described in the certificate issued therefor; and when such certificate shall be so issued, and a certified copy of such by- law recorded in the office of the county recorder in the county where such lands are situated, the shares of stock so located on any land shall only be transferred with said lands, and shall pass as an appurtenance thereto. Whenever any officer of any corporation shall refuse to make entries upon the books thereof, or to transfer stock therein, or to issue a certificate or certificates therefor to the transferee as provided by this and the next preceding section, such officer shall be subject to a penalty of four hundred dollars, to be recovered as liquidated damages, in an action brought against him by the person aggrieved. [Amendment approved 1907; Stats. 1907, p. 854.] Legislation § 324. 1, Enacted March 21, 1872 (based on Stats. 1862, p. Ill; Stats. 18(31, p. 607, § 12; Stats. 1853, p. 169, § l.S; Stats. 18.53, p. 85. §9; Stats. 1862, p. 199, §21), and then read: "Whenever the capital stock of any corporation is divided into shares, and certifi- cates therefor are issued, such shares of stock are personal property and may be transferred by indorsement by the signature of the pro- prietor, or his attorney or legal representative, and delivery of the cer- tificate; but such transfer is not valid, except between the parties thereto, until the same is so entered upon the books of the corporation as to show the names of the parties by and to whom transferred, the number or designation of the shares, and the date of the transfer." 2. Amended by Stats. 1895, p. 118, and differed from the amendment of 1907, in that, (1) in first sentence, (a) it did not have the word "the" before "signature," but (b) had "the" before "transfer" preced- ing the proviso, and (2) did not contain the final sentence, which was added in 1907. 3. Amended by Stats. 1907, p. 854, adding the last sentence. § 325. Transfer of shares held by married women, etc. Div- idends payable to married women. Shares of stock in corpo- rations standing on the books of the corporation in the name of a married woman may be transferred by her, her agent or attorney, without the signature of her husband, and in the same manner as if such married woman were a feme sole. All dividends payable upon any of such shares of stock may be paid to her, her agent or attorney, in the same manner as if she were unmarried ; and any proxy or power given by her, touching any of such shares, is valid and binding, and neither it nor any receipt for dividends need be signed by her husband. [Amendment approved 1905 ; Stats. 1905, p. 397.] Dividends on married women's stock: See post, § 575. ' Legislation § 325. 1. iMiudcd Mardi 21, 1872 (based on Stats. 1861, p. 607, § 12), and then read: "Shares of stock in corporations held or owned by a married woman may be transferred by her, her agent, or § 326 CIVIL CODE. 126 attorney, without the signature of her husband, in the same manner as if such married woman were a feme sole. All dividends payable upon anj' 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 man- ner 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 mar- ried woman, touching any shares of stock of any corporation owned by her, is valid and binding without the signature of her husband, the same as if she were unmarried." 2. Amended by Stats. 1901, p. 350; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1905, p. 397; the code commissioner saying, "The amendment is designed to make it clear that shares of stock standing in the name of a married woman are presumed to be her sepa- rate property, and that they may be dealt with by her as such, in the absence of proof and notice to the contrary." § 326. Affidavit or bond may be required before transfer. When the shares of stock in a corporation are owned by par- ties residing out of the state, the president, secretary, or di- rectors of the corporation, before entering any transfer of the shares on its books, or issuing a certificate therefor to the transferee, may require from the attorney or agent of the non-resident owner, or from the person claiming under the transfer, an affidavit or other evidence that the non-resident owner was alive at the date of the transfer, and if such affi- davit or other satisfactory evidence be not furnished, may require from the attorney, agent, or claimant, a bond of in- demnity, with two sureties, satisfactory to the officers of the corporation; or, if not so satisfactory, then one approved by a judge of the superior court of the county in which the principal office of the corporation is situated, conditioned to protect the corporation against any liability to the legal repre- sentatives of the owner of the shares in case of his or her death before the transfer; and if such affidavit or other evi- dence or bond be not furnished when required as herein pro- vided, neither the corporation nor any officer thereof shall be liable for refusing to enter the transfer on the books of the corporation. [Amendment approved 1883; Stats. 1883, p. 4.] Legislation § 326. 1. Enacted March 21, 1872 (based on Stats. 1862, p. 110, § 12), and then read: "In all transfers of shares of stock in cor- porations, on behalf of owners residing out of the state, the president, secretary, or directors of such corporation, before entering such trans- fer on the books of the corporation or issuing the certificate therefor to the transferee, must require from such attorney, or from the person claiming under such transfer, a bond of indemnity, with two sureties, satisfactory -to the officers of the corporation, or if not so satisfactory, then approved by the district judge of the district in which the prin- cipal office of the corporation is situated, conditioned to protect such corporation against any liability to the legal representatives of the owner of such stock, in case of his or her death before such transfer; J 27 STOCK AND STOCKHOLDERS. § 328 and in case of refusal to furnish such bonds upon request, such transfer is utterly void as against the corporation." 2. Amended by Code Amdts. 1873-74, p. 205, and differed from the amendment of 1883, in that it had the words "district judge, or the county judge" instead of "judge of the superior court." 3. Amended by Stats. 1883, p. 4. § 327. Contract to relieve directors, void. Any contract or contracts, verbal or written, hereafter made, whereby it is sought directly or indirectly to relieve any director or trustee of any corporation or joint-stock association from any liability imposed by section three, of article twelve, of the constitu- tion of California, are hereby declared to be and shall be null and void. Legislation § 327. Added by Code Amdts. 1880, p. 9. § 328. Shares of stock, etc. ; duplicates, how issued. When- ever a certificate of stock or of shares in a corporation organ- ized under the laws of this state has been lost, destroyed or wrongfully withheld, the owner thereof may bring an action against such corporation in the superior court of the county in which is located its principal place of business, for the purpose of obtaining a new or duplicate certificate. If by the books of the corporation the stock stands in the name of a person other than the plaintiff, or if by such books it ap- pears that some other person claims or has some right, title, or interest in, or lien upon, such stock, all such persons must be made parties defendant with the corporation. Summons must be issued and served as in other civil actions, and in ad- dition thereto, the court must direct its clerk to issue and cause to be published, at least once a week for four successive weeks, in some newspaper published in the county, a notice setting forth the pendency of the action, the names of the parties thereto, the court in which it is pending, the name of the cor- poration issuing the stock, the number of the certificate and the number of the shares, the name of the person mentioned as stockholder in the certificate, and notifying all persons claiming said shares, or any of them, or any interest or lien therein or thereupon, to be and appear before the court at a time and place to be designated in the notice not less than thirty days from the first publication thereof, then and there to show cause why a new certificate should not be directed to be issued to the plaintiff, and to set forth their rights in or claim to such shares. If any one appears and answers or intervenes in the action, it must proceed to trial as in other civil cases, and the court must enter judgment as from the facts established may be proper ; but if no one appears within the time designated in such notice, nor within the time allowed §329 CIVIL CODE. 128 by law after the services of such summons, the court must hear such evidence as may be offered in support of the allega- tions of the complaint, and make and file its decision thereon, and thereupon may enter its judgment canceling the lost, destroyed or wrongfully withheld certificate and directing the corporation, upon payment to it of all costs incurred by it in the premises and without costs against the corporation, to issue to the plaintiff a new or duplicate certificate. After the issuing of a new certificate by the corporation pursuant to any judgment in such action, no action can ever be main- tained by any person against the corporation in reference to said lost or destroyed certificate or the shares represented thereby, and thereafter any such action is forever barred as against the corporation. Legislation § c28. Added by Stats. 1905, p. 500. § 329. Burned bonds, procedure to obtain duplicates. Form of summons. Judgment. Indemnity. AVlienever a bond or bonds of a corporation oi'gnnizod under the laws of this state or of any other state, or any territory of the United States has or hfive been lost or destroyed in this state by fire, earthquake, or other calamity, the OAvner thereof may bring an action against such corporation and the trustee or mortgagee of such bonded indebtedness in the superior court of the county in which such bond or bonds were lost or destroyed, or in which owner resides, or in which is located the principal place of business of such corporation for the purpose of obtaining a ucAv or duplicate bond or bonds. If said bond or bonds stand in the name of, or are registered in the name of a person other than the plaintiff, or if it appears by the books of the corpora- tion that any other person claims or has some right, title, in- terest in, or lien upon such bond or bonds, all such persons must be made parties defendant with the corporation and the trustee and mortgagee. Summons must be issued and served as in other civil actions and in addition thereto the court must direct its clerk to issue and cause to be published at least once a Aveek, for four successive AA^eeks, in some ncAvspaper pub- lished in the county a notice setting forth the pendency of the action, the names of the parties thereto, the court in Avhich it is pending, the name of the corporation aa^McIi had issued the bond or bonds, the number of said bond or bonds, if any, and the amount thereof, and the person in AA'hose name the same stands or is regisitered, and notifying all persons claiming said bond or bonds, or any of them or any interest or lien therein or thereupon, to be and appear before the court at a time and place to be designated in the notice, not less than thirty days from the first publication thereof, then and there 129 ASSESSMENTS OF STOCK. § 331 to show cause why a new bond or bonds should not be di- rected to be issued to the plaintiff and to set forth their rights in, or claims to such bond or bonds. If any one appears and answers or intervenes in the action it must proceed to trial as in other civil cases and the court must enter judg- ment as from the facts established may be proper; but if no one appears within the time designated in said notice, nor within the time allowed by law after the service of such summons, the court must hear such evidence as may be offered in support of the allegations of the complaint and make and file its decision thereon, and thereupon may enter its judgment canceling the lost or destroyed bond or bonds and directing such corporation, upon payment to it of all costs incurred by it in the premises, and upon payment to it of the money re- quired and necessary to reissue new bond or bonds and with- out costs against the corporation or other defendant, mort- gagee or trustee ; to issue to the plaintiff a new or duplicate bond or bonds upon the said plaintiff giving proper indemnity to the said corporation and the said mortgagee or trustee. Legislation § 329. Added by Stats. 1907, p. 116. AETICLE II. Assessments of Stock. § 331. Directors may levy assessments. § 332. Limitation. How levied. § 333. Levy of assessment. Old assessment remaining unpaid. § 334. "SVhat order shall contain. § 335. Notice of assessment. Form. § 336. Publication and service of notice. § 337. Delinquent notice. Form. § 338. Contents of notice. § 339. How published. § 340. Jurisdiction acquired, how. §341. Sale to be by public auction. § 342. Highest bidder to be the purchaser. ^ § 343. In default of bidders, corporation may purchase. § 344. Disposition of stock purchased by corporation. § 345. Extension of time of delinquent stock sale. § 346. Assessments shall not be invalidated. §347. Action for recovery of stock, and limitation thereof. § 348. Affidavits of publication. Affidavits of sale. To be filed. § 349. Waiver of sale. Action to recover assessment. §331. Directors may levy assessments. The directors of any corporation formed or existing under the laws of this state, after one fourth of its capital stock has been subscribed, may, for the purpose of paying expenses, conducting business, or paying debts, levy and collect assessments upon the sub- scribed capital stock thereof, in the manner and form and Civ. Code — 9 § 334 CIVIL CODE. 130 to the extent provided herein. [Amendment approved 1874; Code Amdts. 1873^74, p. 206.] Legislation § 331, 1. Enacted March 21. 1872 (based on Stats. 1865- 66, p. 45S; Stats. 1861, p. 41, § 1; Stats. 1863-64, p. 492, § 1), and then read: "The directors of any corporation formed under the laws of this state, for the purpose of paying expenses, conducting business, or pay- ing debts, may levy and collect assessments upon the capital stock thereof, in the manner and form and to the extent provided herein." 2. Amended by Code Amdts. 1873-74, p. 206. § 332. Limitation. How levied. No one assessment must exceed ten per cent of the amount of the capital stock named in the articles of incorporation, except in the cases in this section otherwise provided for, as follows : 1. If the whole capital of a corporation has not been paid up, and the corporation is unable to meet its liabilities or to satisfy the claims of its creditors, the assessment may be for the full amount unpaid upon the capital stock; or if a less amount is sufficient, then it may be for such a percentage as will raise that amount; 2. The directors of railroad corporations may assess the capital stock in installments of not more than ten per cent per month, unless in the articles of incorporation it is other- wise provided ; 3. The directors of fire or marine insurance corporations may assess such a percentage of the capital stock as they deem proper. Legislation § 332. Enacted March 21, 1872; based on Stats. 1865-66, p. 458, § 2. §333. Levy of assessment. Old assessment remaining un- paid. No assessment must be levied while any portion of a previous one remains unpaid, unless : 1. The power of the corporation has been exercised in ac- cordance with the provisions of this article for the purpose of collecting such previous assessment ; 2. The collection of the previous assessment has been en- joined; or 3. The assessment falls within the provisions of either the first, second, or third subdivision of section three hundred and thirty-two. Legislation § 333. Enacted March 21, 1872. § 334. What order shall contain. Every order levying an assessment must specify the amount thereof, when, to whom, and where payable ; fix a day, subsequent to the full term of publication of the assessment notice, on which the unpaid assessments shall be delinquent, not less than thirty nor more than sixty days from the time of making the order levying . • ■.■■•* „f Trustee Stockholders for 331a. tNew.l Persona. Ua...t of Trus-e^^^^^ ^^ ^^^ Assessments. Whenever ^^^'^^f °/ ^"\rustee with the names of poration stands in the ^^^:^\f^^,^jr^^,reon, or whenever the ?he beneficiarie. of ^'^^''''^'J'f^Tis shares of stock is held m corporation has notic. ^^^'l^^^^^l'^Jty^e heneficiaries of such trust, and has a Ust of the names .^^ ^^,^ shares is trust, even though t^^^.f^'J^'^fe individually, and without any issued in the name o the trustee i ^^^^.^^ ^^^^ notice thereon of sucn ^rust. tne P assessments made or trustee shall not be personally liable for ^^^^ ^^^^^^^, levied by the corporation upon such soe .^ ^^^ ^^^.^^^ liability for s-tock assessments shaU on y ^^^^^^.^^.^^ ^, the the beneficial owners of ^"^^J^^^'^^^titute a part. (In effect 90 trust of which such stock r^^> c°nst.t ^^^^ ^^^ ^ days from and after April 2.. UlS- ^ta ^_^ ^^^^^ ^^^g 131 ASSESSMENTS OF STOCK. § 336 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 delinquent. Legislation § 334. Enacted March 21, 1872; based on Stats. 1865-66, p. 459, § 4. § 335. Notice of assessment. Form. Upon the making of the order, the secretary shall cause to he published a notice thereof, in the following form : (Name of corporation in full. Location of principal place of business.) Notice is hereby given, that at a meeting of the directors, held on the (date), an assessment of (amount) per share was levied upon the capital stock of the corporation, payable (when, to whom, and where). Any stock upon which this assessment shall remain unpaid on the (day fixed) will be delinquent and advertised for sale at public auction, and, unless payment is made before, will be sold on the (day ap- pointed), to pay the delinquent assessment, together with costs of advertising and expenses of sale. (Signature of secretary, with location of office.) Legislation § 335. Enacted March 21, 1872; based on Stats. 1868, p. 540, § 3. § 336. Publication and service of notice. The notice must be personally served upon each stockholder, or, in lieu of per- sonal service, must be sent through the mail, addressed to each stockholder at his place of residence, if known, and if not known, at the place where the principal office of the cor- poration is situated, and be published once a week, for four successive weeks, in some newspaper of general circulation and devoted to the publication of general news, published at the place designated in the articles of incorporation as the principal place of business, and also in some newspaper pub- lished 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 territory of the United States, publication in a paper of the place where 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 in a newspaper published in an adjoining county. [Amendment approved 1874; Code Amdts. 1873-74, p. 206.] Legislation § 336. 1. Enacted March 21, 1872 (based on Stats. 1865- 66, p. 459, §6), and then read: "The notice must be published once each week for four successive weeks, in some daily or weekly paper published at the place designated in the articles of incorporation as the principal place of business, and also in some paper published in §339 CIVIL CODE. 182 the county in which the works of the corporation are situated, if a paper is published therein. If the works of the corporation are not situated within some state or territory of the United States, then pub- lication in a paper of the place where situated is not necessary. If there is no newspaper published at the place designated as the prin- cipal place of business of the corporation, then the publication must be made in the newspaper published in an adjoining county. The notice may be served by delivering a copy thereof, certified by the secretary, to each stockholder personallj^; and in case of such service upon all the stockholders of the corporation, no notice by publication is necessary, but such personal notice' is sufficient." 2. Amended by Code Amdts. 1873-74, p. 206. § 337. Delinquent notice. Form. If any portion of the assessment mentioned in the notice remains unpaid on the day specified therein for declaring the stock delinquent, the secretary must, unless otherAvise ordered by the board of directors, cause to be published in the same papers in which the notice hereinbefore provided for shall have been published, a notice substantially in the following form : (Name in full. Location of principal place of business.) Notice. — There is delinquent upon the following described stock, on account of assessment levied on the (date), (and assessments levied previous thereto, if any), the several amounts set opposite the names of the respective shareholders, as follows: (Names, number of certificate, number of shares, amount). And in accordance Avith law (and an order of the board of directors, made on the [date], if any such order shall have been made), so many shares of each parcel of such stock as may be necessary, will be sold, at the (particular place). on the (date), at (the hour) of such day, to pay delinquent assessments thereon, together with costs of advertising and expenses of the sale. (Name of secretary, Avith location of office.) Legislation § 337. Enacted March 21. 1872; based on Stats. 1863-64, p. 492, § 2; Stats. 1S65-66, p. 460, § 7. § 338. Contents of notice. The notice must specify every certificate of stock, the number of shares it represents, and the amount due thereon, except AAdiere certificates may not have been issued to parties entitled thereto, in AA'hich case the number of shares and amount due thereon, together Avith the fact that the certificates for such shares have not been issued, must be stated. Legislation § 338. Enacted March 21. 1872; based on Stats. 1865-66, p. 460, § S. §339. How published. The notice. Avhen published in a daily paper, must be published for ten days, excluding Sun- days and holidays, previous to the day of sale. When pub- 133 ASSESSMENTS OF STOCK. § 343 lished in a weekly paper, it must be published in each issue for two weeks previous to the day of sale. The first publica^ tion of all delinquent sales must be at least fifteen days prior to the day of sale. Legislation § 339. Enacted March 21, 1872; based on Stats. 1865-66, p. 460, § 9. §340. Jurisdiction acquired, how. 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 portion of the assessment or costs of advertising remains unpaid at the hour appointed for the sale, but must sell no more of such stock than is necessary to pay the assessments due and costs of sale. Legislation § 340. Enacted March 21, 1872; based on Stats. 1865-66, p. 460, § 10. § 341. Sale to be by public auction. On the day, at the place, and at the time appointed in the notice of sale, the secretary must, unless otherwise ordered by the directors, sell or cause to be sold at public auction, to the highest bidder for cash, so many shares of each parcel of the described 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 advertising, in addition to the assessment. Legislation § 341. Enacted March 21, 1872; based on Stats. 1865-66, p. 460, §11. § 342. Highest bidder to be the purchaser. The person offer- ing at such sale to pay the assessment and costs for the smallest number of shares or fraction of a share is the highest bidder, and the stock purchased must be transferred to him on the stock-books of the corporation, on payment of the assessment and costs. Legislation § 342. Enacted March 21. 1872; based on Stats. 1865-66, p. 460, § 12. § 343. In default of bidders, corporation may purchase. If, at the sale of stock, no bidder offers the amount of the assess- ments and costs and charges due, the same may be bid in and purchased by the corporation, through the secretary, president, or any director thereof, at the amount of the assessments, costs, and charges due ; and the amount of the assessments, costs, and charges must be credited as paid in full on the books of the corporation, and entry of the transfer of the stock to the cor- poration must be made on the books thereof. While the stock remains the property of the corporation it is not assessable, nor must any dividends be declared thereon; but all assess- i 346 CIVIL CODE. 134 raents and dividends mnst be apportioned upon the stock held by the stockholders of the corporation. Legislation § 343. Enacted March 21, 1872; based on Stats. 1865-66, p. 460, § 13. § 344. Disposition of stock purchased by corporation. All purchases of its own stock made by any corporation vest the legal title to the same in the corporation ; and the stock so pur- chased is held subject to the control of the stockholders, who may make such disposition of the same as they deem fit, in accordance with the by-laws of the corporation or vote of a majority of all the remaining shares. Whenever any portion of the capital stock of a corporation is held by the corporation by purchase, a majority of the remaining shares is a majority of the stock for all purposes of election or voting on any ques- tion at a stockholders' meeting. Legislation § 344. Enacted March 21, 1872; based on Stats. 1865-66, p. 461, § 13. § 345. Extension of time of delinquent stock sale. The dates fixed in any notice of assessment or notice of delinquent sale, published according to the provisions hereof, may be ex- tended from time to time for not more than thirty days, ])y order of the directors, entered on the records of the corpora- tion, or by the secretary, or assistant secretary, of the corpora- tion w^hen delinquent sale is restrained by order of court, or by judge thereof; but no order extending the time for the per- formance^of any act specified in any notice is effectual unless notice of such extension or postponement is appended to and published with the notice to Avhich the order relates. [Amend- ment approved 1913; Stats. 1913, p. 229.] Legislation § 345. 1. Enacted March 21, 1872; based on Stats. 1865- 66, p. 461, § 14. As enacted in 1872 it read: "The dates fixed in any notice of assessment or notice of delinquent sale, published according to the provisions hereof, may be extended from time to time for not more than thirty days, by order of the directors, entered on the records of the corporation; but no order extending the time for the perform- ance of any act specified in any notice is effectual unless notice of such extension or postponement is appended to and published with the notice to which the order relates." 2. Amended by Stats. 1913, p. 220. § 346. Assessments shall not be invalidated. No assessment is invalidated by a failure to make pitblication of the notices hereinbefore provided for, nor by the non-performance of any act required in order to enforce the payment of the same: but in case of any substantial error or omission in the course of proceedings for collection, all previous proceedings, except the levying of the assessment, are void, and publication must be begun anew. 135 ASSESSMENTS OF STOCK. § 349 Legislation § 346. Eiiacted March 21, 1872; based on Stats. 1867-68, p. 540, § 3. § 347. Action for recovery of stock, and limitation thereof. No action must 1 e sustained to recover stock sold for delin 'quent assessments, upon the ground of irregularity in the assessment, irregularity or defect of the notice of sale, or defect or irregularity in the sale, unless the party seeking to maintain such action first pays or tenders to the corporation, or the party holding the stock sold, the sum for which the same was sold, together with all subsequent assessments Avhich 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. Legislation § 347. Enacted March 21, 1872; based on Stats. 1865-66, p. 461. § 348. Affidavits of publication. Affidavits of sale. To be filed. The publication of notice required by this article may be proved by the affidavit of the printer, foreman, or principal clerk of the newspaper in which the same was published ; and the affidavit of the secretary or auctioneer is prima facie evi- dence of the time and place of sale, of the quantity and par- ticular description of the stock sold, and to whom, and for what price, and of the fact of the purchase-money being paid. The affidavits must "be filed in the office of the corporation, and copies of the same, certified by the secretary thereof, are prima facie evidence of the facts therein stated. Certificates, signed by the secretary and under the seal of the corporation, are prima facie evidence of the contents thereof. [Amendment approved 1874; Code Amdts. 1873-74, p. 207.] Legislation § 348. 1. Enacted March 21, 1872 (based on Stats. 1869- 70, p. 229, § 1), and then read, (1) in first sentence, (a) "notices" in- stead of "notice," and (b) "paper" instead of "newspaper," (2) "pri- mary" instead of "prima facie" in the three instances. 2. Amended by Code Amdts. 1873-74, p. 207. § 349. Waiver of sale. Action to recover assessment. On the day specified for declaring the stock delinquent, or at any time subsequent thereto and before the sale of the delin- quent stock, the board of directors may elect to waive further proceedings under this chapter for the collection of delinquent assessments, or any i)art 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. Legislation § 349. Enacted March 21, 1872. § 354 CIVIL CODE. 136 CHAPTER III. Corporate Powers. Article I. General Powers. §§354-365. II. Records. §§ 377, 378. in. Examination of Corporations. §§382-384. IV. Judgment agains't and Sale of Corporate Property. §§ 388-393. AETICLE I. General Powers. § 354. Powers of corporations. § 355. Limitation of powers. § 356. Banking expressly prohibited. § 357. Misnomer does not invalidate instrument. § 358. Corporations. Time in which must be organized. Continuance of business. . § 359. Fictitious increase of stock is void. How capital stock may be increased or diminished. Bonded indebtedness. § 360. Corporations may acquire real property, and how much. § 361. Changing number of directors of corporation. § 361a. Transfer of franchise of corporation not valid without consent of stockholders. § 362. Amendment of articles of incorporation. Majority vote of direc- tors. Amended articles filed. Changes not permitted. § 363. Corporations may own their lots and buildings. [Repealed.] § 363. Correction of erroneous filing of articles of incorporation. § 364. Corporations may transfer foreign concessions. § 365. Restoration of lost records, certificates of stock, etc. § 354. Powers of corporations. Everj^ corporation, as such, has power: 1. Of succession, by its corporate name , for the period lim- ited; and when no period is limited, perpetually; 2. To sue and be sued, in any court ; 3. To make and use a common seal, and alter the same at pleasure ; 4. To purchase, hold, and convey such real and personal estate as the 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 ma}' require, and to allow them suitable compensation ; 6. To make by-laws, not inconsistent with any existing law. for the management of its property, the regulation of its affairs, and for the transfer of its stock ; 7. To admit stockholders or members, and to sell their stock or shares for the payment of assessments or installments ; 8. To enter into any obligations or contracts essential to the transaction of its ordinary affairs, or for the purposes of the corporation. Powers of corporations. The code, in defining a corporation, says it has "certain powers and duties of a natural person": Ante, § 283. 137 GENERAL POWERS OF CORPORATIONS. § 358 Limitation of powers to those enumerated and to those necessarily incidental: Infra, § 355. Succession for period limited. Code limit of fifty years: See ante, §290. Limit for homestead corporations, ten years: Post, § 557. Where action against corporation may he hrought: See Const. 1879, art. xii, § 16; see Code Civ. Proc, § 395. Acquiring property by eminent domain: See Code Civ. Proc, §§ 1237 et seq. Power to make by-laws: See ante, § 301. . Selling delinquent shares: See ante, §§331 et seq. Legislation § 354. Enacted March 21, 1872; based on Stats. 1850, p. 347; Stats. 1861, p. 85, § 4; Stats. 1862, p. 540, § 3; Field's Draft N. Y. Civ. Code, vol. 2, p. 125. § 355. Limitation of powers. In addition to the powers enumerated in the preceding section, and to those expressly given in that title of this part nnder 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. Incidental powers. This section is a negative grant of incidental powers; with respect to which, see § 354. Enumeration of powers: Supra, § 354. Legislation § 355. Enacted March 21, 1872; based on Stats. 1850, p 347, § 2. § 356. Banking expressly prohibited. No corporation shall create or issue bills, notes, or other evidences of debt, upon loans or otherwise, for circulation as money. Issuing or circulating paper money, except as authorized by the United States, punishable: Pen. Code, § 648. Constitutional provisions to the same purpose: Const. 1879, art. xii, § 5. That this limitation upon corporate powers does not prevent the execution of negotiable instruments, see ante, § 354, subd. 8. Legislation § 356. Enacted March 21, 1872; based on Stats. 1850, • p. 347, § 3; Stats. 1853, p. 90, § 15; Const. 1849, art. iv, § 35. § 357. Misnomer does not invalidate instrument. The mis- nomer of a corporation in any written instrument does not invalidate the instrument, if it can be reasonably ascertained from it what corporation is intended. Legislation § 357. Enacted March 21, 1872; based on Stats. 1862, p. 205, § 26. § 358. Corporations. Time in which must be organized. Continuance of business. If a corporation does not organize and commence the transaction of its business, or the construc- tion of its works within one year from the date of its incor- fjoration, or if, after its organization and eomiiKMU'emeiit of its business, it shall lose or dispose of all of its property, and shall fail for a period of two years to elect officers and transact, in § 359 CIVLL CODE. 138 regular order, the business of said corporation, its corporate powers shall cease, and the said corporation may be dissolved at the instance of any creditor of the said corporation, at the suit of the state, on the information of the attorney-general, but the resumption of its business in good faith by such corpora- tion prior to the commencement thereof shall be a bar to such suit. The due incorporation of any company claiming in good faith to be a corporation under this part, and doing business as such, or its right to exercise corporate powers, shall not be inquired into collaterally in any private suit to which such de facto corporation may be a party ; but such inquiry may be had at the suit of the state on information of the attorney-general ; provided, however, as to any company claiming in good faith to be, and which has been doing business for ten consecutive years as a corporation, no such inquiry shall be made either by the state or by any person whatsoever. [Amendment ap- proved 1901; Stats. 1901, p. 632.] Same respecting street-railroads: See post, § 502. Provision respecting railroad companies, two years: See post, § 468. Legislation § 358. 1. Enacted March 21. 1872 (based on Stats. 1862, p. 110, §1), and then read: "If a corporation does not organize and commence the transaction of its business or the construction of its works within one year from the date of its incorporation, its corporate powers cease. The due incorporation of any company, claiming in good faith to be a corporation under this part, and doing business as such, or its right to exercise corporate powers, shall not be inquired into, collaterally, in any private suit to which such de facto corpora- tion may be a party; but such inquiry may be had at the suit of the state on information of the attorney-general." 2. Amended by Stats. 1901, p. 632. § 359. Fictitious increase of stock is void. How capital stock may be increased or diminished. Bonded indebtedness. No corporation shall issue stocks or bonds except for money paid, labor done or property actually received, and all ficti- tious increase of stock or indebtedness is void. Every corpo- ration may increase or diminish its capital stock, and every corporation, or two or more corporations, may create or in- crease its or their bonded indebtedness, subject to the follow- ing provisions : First. The capital stock of a corporation may be increased or diminished at a meeting of the stockholders by a vote rep- resenting at least tAvo thirds of the subscribed or issued capi- tal stock, or in the manner otherAvise in this section provided ; when by meeting as aforesaid, then such meeting must be called by the board of directors or trustees, and notice must be given by publication in a newspaper published in the county or city and county where the principal place of busi- ness of the corporation is located, or if there be none published 359. Fictitious Increase of Stock Is Void; How Capital Stock IVIay Be Increased or Diminished; Bonded Indebtedness. No corporation shall issue stocks 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 ca,pital stock, and every corporation, or two or more corporations, may create or increase its or their bonded indebtedness, subject to the following provisions: 1. The capital stock of a corporation may be increased or diminished at a meeting of the stockholders by a vote repre- senting at least two-thirds of the subscribed or issued capital stock, or in the manner otherwise in this section provided; when by meeting as aforesaid, then such meeting must be called by the board of directors or trustees, and notice must be given by publication in a newspaper published in the county or city and. county where the principal place of business of the corporation is located, or if there be none published in said county or city and county, then in a newspaper published in an adjoining county, or city and county, such paper to be designated by the board of directors or trustees in the order calling for the meet- ing; provided, however, that where the articles of incorporation provide for two or rnore kinds of capital stock, no increase or reduction of capital stock shall be made without the assent of two-thirds of all the subscribed stock, and in making such increase or reduction, the assent shall identify the particular class or classes of stock to be increased or reduced, and the amounts apportioned to each. 2. The notice must specify the object of the meeting and the amount to which it is proposed to increase or diminish the capi- tal stock, the time and place of holding the meeting, which latter tnust be at the principal place of business of the corporation and at the building where the board of directors or trustees usually meet. The notice herein provided must be published once a week for at least sixty days. The capital stock can not be diminished to an amount less than the indebtedness of the corporation. 3. The bonded indebtedness of a corporation may be created or increased by a vote of the stockholders representing at least two-thirds of the subscribed or issued capital stock at a meet- ing called by the hoard of directors or trustees, and after notice of the time and place of the meeting published in the same man- ner and for the time prescril)ed, which notice shall state the amoimt of the bonded indebtedness which it is proposed to cre- ate, or the amount to which it is proposed to Increase such indebtedness, and shall in all other respects contain the same matters as are above provided and set forth in the notice .of meeting to increase or diminish the capital stock; or such original creation of bonded indebtedness may be nr^ade as otherwise in this section provided. 4. In addition to the notice by publication, when proceedings are to be had hereunder at a meeting of stockholders, the' secre- tary of the corporation shall also address a notice to each of the stockholders whose names appear on the company's books as sufficiently addressed or identified, at his place of residence, if known, and if not known, then at the place in which the prin- cipal place of business of the corporation is situate, which notice shall be so mailed to such stockholders at least thirty days before the day appointed for such meeting. 5. In lievi of such call for meeting of stockholders and of such notice and publication of the same and of a stockholders' meet- ing held in pvu-suance thereof and of said vote thereat represent- ing at least two-thirds of the subscribed capital stock, any cor- poration may diminish its capital stock and also originally create its bonded indebtedness by a resolution adopted by the unani- mous vote of its board of directors or trustees at a regular meet- ing or at a special meeting called for that purpose and approved by the written assent or assents of the stockholders holding two- thirds of the subscribed or issued capital stock, which assent or assents must be filed with the secretary of the corporation; but the secretary of the corporation must address by mail, postage fully prepaid, a copy of such resolution to each of the stock- holders whose names appear upon the company's books as suffi- ciently addressed or identified, at his place of residence, if known, and if not known, then at the place in which the principal place of business of the corporation is situate, which notice shall be so mailed to [each stockholder] at least thirty days before the certificate heieinafter provided is made and signed or filed, as hereinafter provided, and within that time any stockholder may file with such secretary his dissent in writing: but it is further provided, that if at any time within said thirty days such writ- ten assent or assents of the stockholders holding all of the sub- scribed 6r issued capital stock be so filed with the secretary, then and at once and without further delay the certificate here- inafter provided for may be so made, signed and filed as here- inafter provided and with the same effect, but such capital stock can not be diininished to an amount less than the indebtedness of the corporation, and no increase of capital stock or bonded indebtedness can be made, except at a meeting of the stock- holders as in this section provided. 6. Any two or more corporations may by a separate compli- ance by each corporation with the provisions of this section applicable in the premises in respect to creating or increasing bonded indebtedness, create or increase a consolidated bonded indebtedness of such corporation, to be binding, jointly and severally on such corporations, and which may be secured by a consolidated mortgage or deed of trust executed Viy all such corporations, mortgaging or conveying in trust all or any of the properties of all such corporations, acquired or to be acquired. 7. Upon such increase or diminution of the capital stock or creation or increase of the bonded indebtedness being made in accordance with the provisions of this section there shall be made, if proceedings are had under the provisions first, second, third and fourth above, a certificate under the corporate seal and signed by the president and secretary of the corporation or of each corporation acting in the premises and a majority of the directors or trustees of such corporation, or each corporation so acting, showing a compliance by such corporation, or each corporation so acting, with the requirements of said last named subdivisions and the amount to which the capital stock has been increased or diminished [and the number of shares into which the capital stock, as increased or diminished, is to be divided and the par value thereof] or the amount of the bonded indebt- edness created, or to which the bonded indebtedness may have been increased, and the amount of stock represented at the meet- ing and the total vote in the affirmative by which the same was accomplished and the total vote in the negative; or if such pro- ceedings be had and taken under subdivision fifth of this section as to diminution of capital stock or original creation of bonded indebtedness a like certificate shall be made and sealed and signed as aforesaid, showing a compliance by such corporation, and by each corporation acting in the premises, with the require- ments of said subdivision fifth, and the amount to which the capital stock has been diminished [and the number of shares into which the capital stock, as diminished, is to be divided and the par value thereof for] the amount of bonded indebtedness so originally created, and the total amount of the stock represented by the said written assent or assents so filed with the secretary and the total amount of stock represented by the said written dissent or dissents so filed. In. case of a consolidated bond of (bonded) indebtedness each corporation which is a party thereto shall cause to be made and signed and sealed and verified and filed, as in this section provided, a separate certificate. 8. In all cases the certificate shall state the total number of subscribed or issued shares of the capital stock of the corpora- tion, or or each corporation respectively acting in the premises, and shall be verified by the oath of the said president and secre- tary, or of the said respective presidents and secretaries. Such consolidated bonded indebtedness may be created or increased to an amount equal to the par or face value of the aggregate amount of the subscribed or issued capital stocks of said two or more corporations, but shall not exceed such aggregate amount. In each and every case the certificate must be filed in [the office] of the secretary of state, and thereupon the capital stock shall be so increased or diminished, or the bonded indebtedness or consolidated bonded indebtedness shall be created or increased accordingly. [The secretary of state shall forthwith issue a cer- tified copy of said certificate and transmit said copy to the county clerl< of the county in which the principal place of busi- ness of the corporation was situated at the time said corporation was incorporated which copy shall be filed by said county clerk upon payment of the fee prescribed by law. A copy of such certificate, certified by the secretary of state, shall be filed by such corporation in the office of the county clerk of every county in which said corporation has or holds real property. Any cor- poration which shall fail to comply with the requirements of the preceding sentence shall be subject to the penalties and liabil- ities provided in section two hundred ninety-nine for a failure of corporations to file copies of their articles of incorporation with the county clerks of the counties in which they shall purchase, hold or locate real property;] and such certificate or certificates so filed shall be, when said certified copy or copies are so filed, conclusive proof of such increase or diminution of capital stock or such creation or increase of bonded or consolidated bonded indebtedness and the validity of each thereof. When the by-laws of a corporation prescribe the paper in which notices of meet- ings of directors or trustees or stockholders are to be published the notices or publication herein provided for shall be published in such paper, unless publication thereof shall have ceased. (In effect 90 days from and after April 29, 1921. Stats. 1921, Chap. 131.) Civ. Code, 1921. 139 GENERAL POWERS OF CORPORATIONS, § 359 in said county or city and county, then in a newspaper pub- lished in an adjoining county, or city and county, such paper to be designated by the board of directors or trustees in the order calling for the meeting ; provided, however, that where the articles of incorporation provide for two or more kinds of capital stock, no increase or reduction of capital stock shall be made without the assent of tAvo thirds of all the subscribed stock, and in making such increase or reduction, the assent shall identify the particular class or classes of ^ock to be in- creased or reduced, and the amounts apportioned to each. Second. The notice must specify the object of the meeting and the amount to which it is proposed to increase or diminish the capital stock, the time and place of holding the meeting, which latter must be at the principal place of business of the corporation and at the building where the board of directors or trustees usually meet. The notice herein provided must be published once a week for at least sixty days. The capital stock cannot be diminished to an amount less than the indebt- edness of the corporation. Third. The bonded indebtedness of a corporation may be created or increased hy a vote of the stockholders represent- ing at least tAvo thirds of the subscribed or issued capital stock at a meeting called by the board of directors or trustees, and after notice of the time and place of the meeting published in the same manner and for the time prescribed, Avhich notice shall state the amount of the bonded indebtedness Avhich it is proposed to create, or the amount to Avhich it is proposed to increase such indebtedness, and shall in all other respects con- tain the same matters as are above provided and set forth in the notice of meeting to increase or diminish the capital stock; or such original creation of bonded indebtedness may be made as otherwise in this section provided. Fourth. In addition to the notice by pulilication, Avhen pro- ceedings are to be had hereunder at a meeting of stockholders, the secretary of the corporation shall also address a notice to each of the stockholders whose names appear on the com- pany's books as sufficiently addressed or identified, at his place of residence, if known, and if not known, then at the place in Avhieh the principal place of business of the corporation is situate, which notice shall be so mailed to such stockholders at least thirty days before the day appointed for such meeting. Fiftli. In lieu of such call for meeting of stockholders and of such notice and publication of the same and of a stockhold- ers' meeting held in pursuance thereof and of said vote thereat representing at least two thirds of the subscribed capital stock, any corporation may diminish its capital stock and also originally create its bonded indebtedness by a resolution § 359 CIVIL CODE. 140 adopted by the unanimous vote of its board of directors or trustees at a regular meeting or at a special meeting called for that purpose and approved by the written assent or assents of the stockholders holding two thirds of the subscribed or issued capital stock, which assent or assents must be filed with the secretary of the corporation ; but the secretary of the cor- poration must address by mail, postage fully prepaid, a copy of such resolution to each of the stockholders whose names appear upon the company's books as sufficiently addressed or identified, at his place of residence, if known, and if not known, then at the place in which the principal place of busi- ness of the corporation is situate, which notice shall be so mailed to such stockholders at least thirty days before the cer- tificate hereinafter provided is made and signed or filed, as hereinafter provided, and within that time any stockholder may file with such secretary his dissent in writing ; but it is further provided, that if at any time within said thirty days such written assent or assents of the stockholders holding all of the subscribed or issued capital stock be so filed with said secretary, then and at once and without further delay the certificate hereinafter provided for may be so made, signed and filed as hereinafter provided and with the same effect, but such capital stock cannot be diminished to an amount less than the indebtedness of the corporation, and no increase of capital stock or bonded indebtedness can be made, except at a meeting of stockholders as in this section provided. Sixth. Any two or more corporations may by a separate compliance by each corporation with the provisions of this section applicable in the premises in respect to creating or in- creasing bonded indebtedness, create or increase a consoli- dated bonded indebtedness of such corporations, to be binding jointly and severally on such corporations, and which may be secured by a consolidated mortgage or deed of trust executed by all such corporations, mortgaging or conveying in trust all or any of the properties of all such corporations, acquired or to be acquired. Seventh. Upon such increase or diminution of the capital stock or creation or increase of the bonded indebtedness being made in accordance with the provisions of this section there shall be made, if proceedings are had under subdivisions first, second, third and fourth above, a certificate under the corpo- rate seal and signed by the president and secretary of the cor- poration or of each corporation acting in the premises and a majority of the directors or trustees of such corporation, or each corporation so acting, showing a compliance by such cor- poration, or each corporation so acting, with the requirements of said last-named subdivisions and the amount to which the 141 GENERAL POWERS OP CORPORATIONS. § 359 capital stock has been increased or diminished or the amount of the bonded indebtedness created, or to which the bonded indebtedness may have been increased, and the amount of stock represented at the meeting and the total vote in the affirmative by which the same was accomplished and the total vote in the negative ; or if such proceedings be had and taken under subdivision fifth of this section as to diminu- tion of capital stock or original creation or bonded indebt- edness a like certificate shall be made and sealed and signed, as aforesaid, showing a compliance by such corporation, and by each corporation acting in the premises, with the re- quirements of said subdivision fifth, and the amount to which the capital stock has been diminished or the amount of bonded indebtedness so originally created, and the total amount of the stock represented by the said written assent or assents so filed with the secretary and the total amount of stock represented by the said written dissent or dissents so filed. In case of a consolidated bond of indebtedness each corporation which is a party -thereto shall cause to be made and signed and sealed and verified and filed, as in this section provided, a separate certificate. Eighth. In all cases the certificates shall state the total number of subscribed or issued shares of the capital stock of the corporation, or of each corporation respectively acting in the premises, and shall be verified by the oath of the said presi- dent and secretary, or of the said respective presidents and secretaries. Such consolidated bonded indebtedness may be created or increased to an amount equal to the par or face value of the aggregate amount of the subscribed or issued capi- tal stocks of said two or more corporations, but shall not ex- ceed such aggregate amount. In each and every case the certificate must be filed in the office of the clerk in the county or city and county wh«re the original articles of incorporation of the corporation or corporations acting hereunder are filed and a certified copy thereof, certified by such clerk, shall be filed in the office of the secretary of state ; and thereupon the capital stock shall be so increased or diminished, or the bonded indebtedness or consolidated bonded indebtedness shall be created or increased accordingly, and such certificate or cer- tificates so filed shall be, when said certified copy or copies are so filed, conclusive proof of such increase or diminution of capital stock or such creation or increase of bonded or con- solidated bonded indebtedness and the validity of each thereof. When the by-laAvs of a corporation prescribe the paper in which notices of meetings of directors or trustees or stockhold- ers are to be published the notices of publication herein pro- vided for shall be published in such paper, unless publication § 359 CIVIL CODE. 142 thereof shall have ceased. [Amendment approved 1907; Stats. 1907, p. 349.] Legislation § 359. 1. Enacted Marcli 21, 1872 (based on Stats. 1850. p. 347, §§153, 196; Stats. 1853, p. 87, § 20; Stats. 1853, p. 169, § 25; Stats. 1865-66, p. 747, § 17; Stats. 1861, p. 567, §§ 14, 15, 16; Stats. 1862, p. 199, §§ 18, 19, 20; Stats. 1867-68, p. 325, § 4; Stats. 1863, p. 91, §§ 20, 21, 22), and then read: "Every corporation may increase or diminish its capital stock as in this section provided: 1. By a majority vote of the directors there may be called a meeting of the stockholders, to be convened for the purpose of increasing or of diminishing the capital stock; 2. Personal notice of the time and place of such meeting, and the object thereof, must be served on each stockholder resident in this state; or, in lieu thereof, the notice must be published in every issue of a newspaper published in the county where the principal place of business is located, for four weeks successively; 3. The notice must also contain the amount to which it is proposed to increase or diminish the capital stock; 4. The capital stock must in no case be diminished to an amount less than the indebtedness of the corporation or the esti- mated cost of the works which it may be the object or purpose of the corporation to construct; 5. At least four fifths of all the capital stock must be represented at such meeting, and at least two thirds of the entire capital stock must vote in favor of such increase or diminution before the same is effected; 6. A certificate, signed and verified by the chairman and secretary of the meeting, must be made, showing a strict compliance with all the requirements of this section, the amount to which the capital stock has been increased or diminished, the amount of stock (and by whom held) represented at the meeting, the vote by which the object was accomplished, the amount of capital stock ac- tually paid in, and the amount of all debts and liabilities of the corpo- ration, and how secured; 7. This certificate must be subscribed by a majority of the directors, and duplicates made, one to be filed in the oflSce of the county clerk and one in the ofiice of the secretary of state, as provided for original articles of incorporation, and thereupon the capital stock is so increased or diminished." 2. Amended by Code Amdts. 1873-74, p. 207, to read: "Every corpo- ration may increase or diminish its capital stock at a meeting called for that purpose by the directors, as follows: One. Notice of the time and place of the meeting, stating its object and the amount to which it is proposed to increase or diminish the capital stock, niiist be per- sonally served on each stockholder resident in the state, at his place of residence, if known, and if not known, at the place where the prin- cipal office of the corporation is situated, and be published in a news- paper publishe'd in the county of such principal place of business, once a week, for four weeks successively. Two. The capital stock must in no case be diminished to an amount less than the indebtedness of the corporation, or the estimated cost of the works which it may be the purpose of the corporation to construct. Three. At least two thirds of the entire capital stock must be represented by the vote in favor of the increase or diminution, before it can be effected. Four. A certificate must be signed by the chairman and secretary of the meeting, and a majority of the directors, showing a compliance with the requirements of this section, the amount to which the capital stock has been increased or diminished, the amount of stock represented at the meeting, and the vote by which the object was accomplished. Five. The certificate must be filed in the office of the county clerk where the original articles of incorporation were filed, and a certified copy thereof in the office of the secretary of state, and thereupon the 143 GENERAL POWERS OP CORPORATIONS. § 359 capital stock shall be so increased or diminished. Six. The written assent of the holders of three fourths of the .subscribed capital stock shall be as effectual to authorize the increase or diminution of the capital stock, as if a meeting were called and held; and upon such written assent, the directors may proceed to make the certificate herein provided for." 3. Amended by Stats. 1883, p. 31, to read: "Every corporation may increase or diminish its capital stock at a meeting of the stockholders called for that purpose by the directors, as follows: 1. Notice of the time and place of the meeting, stating its object, and the amount to which it is proposed to increase or diminish the capital stock, and the number of shares into which the capital stock is to be divided, must be given by publication thereof in a newspaper of general circulation, published in the county, or city and county, in which the principal office of the corporation is located, for at least sixty days, and posting a copy thereof for the same period in a conspicuous place in said office. If the publication be in a daily newspaper there shall be not less than six insertions per week, and if in a weekly newspaper there shall be not less than nine insertions. 2. The capital stock must in no case be diminished to an amount less than the indebtedness of the corporation or the estimated cost of the works which it may be the purpose of the corporation to construct, nor shall the capital stock be increased with- out the consent at said meeting of the persons holding at least two thirds in value of the stock of the corporation. 3. If at said meeting it be determined to increase or diminish the capital stock, as the case may be, a certificate must be signed by the chairman and secretary of the meeting and a majority of the directors of the corporation, show- ing a compliance with the requirements of this section in calling and giving notice of the meeting, the amount of increase or diminution of the capital stock and number of shares, if any change has been made, the names of persons consenting to the action, and amount of stock held by them. The certificate must be acknowledged by the persons making it, before an officer competent to take acknowledgment of deeds. 4. The certificate must be filed in the office of the county clerk, where the original articles of incorporation were filed, and a certified copy thereof in the office of the secretary of state, and thereupon the capital stock shall become increased or diminished as in the certificate set forth composed of the number of shares therein specified. 5. If the stockholders, at a meeting called to increase the capital stock of a corporation, direct any special disposition to be made of the stock to be issued in excess of the original capital stock, the directors shall dispose of the same as so directed." 4. Amended by Stats. 1885, p. 141, to read: "No corporation shall issue stock or bonds except for money paid, labor done, or property actually received, and all fictitious increase of stock or indebtedness shall be void. Every corporation may increase or diminish its capital stock, or increase its bonded indebtedness, subject to the foregoing provision of this section, at a meeting called by the directors for the purpose, as follows: 1. Notice of the time and, the place of the meet- ing, stating its object, and the amount to which it is proposed to increase or diminish the capital stock, must be personally served on each stockholder resident in the state, at his place of residence, if known, and if not known, at the place where the principal office of the corporation is situated, and be published in a newspaper published in the county of such principal place of business once a week for nine weeks successively. 2. The capital stock must in no case be diminished to an amount less than the indebtedness of the corporation, § 359 CIVIL CODE. 144 or the estimated cost of the works which it may be the purpose of the corporation to construct. 3. At least two thirds of the entire capital stock must be represented by the vote in favor of the increase, diminution, before it can be effectual. ,4. A certificate must be signed by the chairman and secretary of the meeting and a majority of the directors, showing a compliance with the requirements of this sec- tion, the amount to which the capital stock has been increased or diminished, the amount of stock represented at the meeting, and the vote by which the object was accomplished. 5. The certificate must be filed in the office of the county clerk where the original articles of incorporation were filed, and a certified copy thereof in the office of the secretary of state, and thereupon the capital stock shall be so increased or diminished, or the bonded indebtedness may be in- creased accordingly." 5. Amended by Stats. 1889, p. 364, to read: "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. Everj' 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 increased 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 county where the principal place of busi- ness 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 directors in the order calling the meeting, which order must be made at least one month before the publication begins. The notice must specify the object of the meeting, and the amount to which it is proposed to increase or diminish the capital stock, the time and place of holding the meeting, which latter must be at the principal place of business of the cor- poration, and at the building 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 diminished to an amount less than the indebtedness of the corporation. The bonded indebtedness of a corporation may be created or increased by a vote of the stockholders representing at least 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 for the time above prescribed, which notice shall state the amount of the bonded indebtedness which it is proposed to create, or the amount to w^hieh 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 meeting to increase or dimin- ish the capital stock. In addition to the notice by publication, the secretary of the corporation shall also address a notice to each of the stockholders at his place of residence, if known, and if not known then at the place of business of the corporation, which notice shall be mailed to the stockholders at least sixty days before the day ap- pointed 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 requirements of this section, the amount to which the capital stock has been increased or diminished, or the amount of the bonded indebtedness created, or to which the bonded indebtedness 145 GENERAL POWERS OF CORPORATIONS. § 359 may have been increased, tlie amount of stock represented at the meet- ing, and the whole vote by which the object was accomplished. The certificate must be filed in the office of the clerk of the county where the original articles of incorporation are filed, and a certified copy thereof in the oflice of the secretary of state; and thereupon the capital stock shall be so increased or diminished, or the bonded indebt- edness may be created or increased accordingly. When the by-laws of the corporation prescribe the paper in which notice of meetings are to be published, the notices herein provided for shall be published in such paper unless publication thereof shall have ceased." 6. Amended by Stats. 1893, p. 191, to read: "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 following provisions: First. The capital stock of a corporation may be increased or diminished at a meeting of the stockholders by a vote representing at least two thirds of the subscribed capital stock; such meeting must be called by the board of directors, and notice must be given by pub- lication in a newspaper published in the county where the principal place of business of such corporation is located, or if there be none published in said county, then in a newspaper published in an adjoin- ing county, such paper to be designated by the board of directors in the order calling the meeting. Second. The notice must specify the object of the meeting, and the amount to which it is proposed to in- crease or diminish the capital stock, the time and place of holding the meeting, which latter must be at the principal place of business of the corporation, and at the building where the board of directors usually meet. The notice herein provided must be published once a week for at least sixty days. The capital stock cannot be diminished to an amount less than the indebtedness of the corporation. Third. The bonded indebtedness of a corporation may be created or increased by a vote of the stockholders representing at least two thirds of the subscribed capital stock at a meeting called by the board of directors, and after notice of the time and place of the meeting, published in the same manner and for the time above prescribed, which notice shall state the amount of the bonded indebtedness which it is proposed to create, or the amount to which it is proposed to increase such in- debtedness, and shall in all other respects contain the same matters as are above provided and set forth in the notice of a meeting to increase or diminish the capital stock. Fourth. In addition to the notice by publication, the secretary of the corporation shall also ad- dress a notice to each of the stockholders whose name appears on the company's books as sufficiently addressed, at his place of residence if known, and if not known, then at the principal place of business of the corporation, which notice shall be mailed to such stockholders at least thirty days before the day appointed for such meeting. And upon such increase or diminution of the capital stock or creation or increase of bonded indebtedness being made as herein provided, a certificate must be signed by the chairman and secretary of the meet- ing and a majority of the directors, showing a compliance with the requirements of this section, the amount to which the capital stock has been increased or diminished, or the amount of the bonded indebt- edness created or to which the bonded indebtedness may have been increased, and the amount of stock represented at the meeting, and the whole vote by which the object was accomplished. The certificate must be filed in the office of the clerk of the county where the original Civ. Code — 10 § 361 CIVIL CODE. 146 articles of iBCorporation are filed, and a certified copy thereof iu 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 corpora- tion prescribe the paper in which notices of meeting are to be pub- lished, the notices herein provided for shall be published in such paper unless publication thereof shall have ceased." 7. Amended by Stats. 1903, p. 347, and differed from the amend- ment of 1907, in that in subd. First, (1) the word "the," before "cor- poration is located," was printed "such," and this subdivision did not contain the proviso, which was added in 1907. 8. Amended by Stats. 1907, p. 349, the code commissioner saying of the addition of the proviso in subdivision First, "to cover cases of corporations issuing preferred and common stock." § 360. Corporations may acquire real property, and how much. 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 other- wise specially provided. A corporation may acquire real prop- erty, as provided in title seven, part three, of the Code of Civil Procedure, when needed for any of the uses and purposes mentioned in said title. By a unanimous vote of all the directors at any regular meeting, any corporation existing, or hereafter to be formed under the laws of this state, may ac- quire and hold the land and building on and in which its busi- ness is carried on, and may improve the same to any extent required for the convenient transaction of its business. [Amendment approved 1905; Stats. 1905. p. 774.] Power of insurance corporations to acquire land: See post, § 415. Power of railroad corporation to acquire land: See post, § 465. Legislation § 360. 1. Enacted March 21, 1872, and then read: "No corporation shall acquire or hold any more real estate than may be absolutely necessary for the use of the business conducted or the con- struction of their works, except as specially provided. A corporation organized for any purpose specified iu subdivisions 3, 4, 5, 7, 8, and 15, of section 286, may acquire real property as provided in title VII, part III, Code of Civil Procedure, when needed for the uses and pur- poses therein mentioned." 2. Amended by Code Amdts. 1873-74, p. 208, and then contained only' the first two sentences, the second of which did not have the words "of the" before "Code of Civil Procedure." 3. Amendment by Stats. 1901, p. 351; unconstitutional. See note § 4, ante. 4. Amended by Stats. 1905, p. 774, adding (1) "of the" before "Code of Civil Procedure" in second sentence, and (2) the final sentence; the code commissioner saying, "§ 363, approved March 5, 1899, is added to § 360, to the end that there shall no longer be two sections num- bered 363." § 361. Changing- number of directors of corporation. Any corporation or association may increase or diminish the num- ber of its directors or trustees by the vote or written assent 361. Changing Number of Directors of CorporationT*^^HI^ corporation or association may increase or diminish the number of its directors or trustees by the vote or written assent of stockholders representing a majority of its subscribed, capital stock, or, if it ha? no capital stock, by the vote or written assent of a majority of the members. A certificate over the cor- porate seal, setting- forth the action taken by the stockholders, or members, and stating the new number of directors, shall be signed by the president and secretary of such corporation or association, and filed in the [office of] the secretary of state whereupon the number of directors or trustees shall be changed as stated in said certificate. [The secretary of state shall forth- with issue a certified copy of said certificate and transmit said copy to the county clerk of the county in which the principal place of business of the corporation was situated at the time said corporation was incorporated which copy shall be filed by said county clerk upon payment of the fee prescribed by law. A copy of such certificate, certified by the secretary of state, shall be filed by such corporation in the office of the county clerk of every county In which said corporation has or holds real property. Any corporation which shall fail to comply with the requirements of the preceding sentence shall be subject to the penalties and liabilities provided In section two hundred ninety-nine for a fail- ure of corporations to file copies of their articles of Incorpora- tion with the county clerks of the counties in which they shall purchase, hold or locate real property.] This section shall apply to all corporations existing under the laws of the State of Cali- fornia, whether organized and incorporated prior to the enact- ment of this code, or subsequent thereto. (In effect 90 days from and after April 29, 1921. Stats. 1921, Chap. 130.) Civ. Code, 1921 \ 361. Changing Number of Directors of Corporation. Any corporation or association may increase or diniinisli tJie numbei' of Its directors or trustees by the vote or written assent of stock- holders representing' a majority of its subscribed capital stock, or, if It has no capital stock, by the vote or written assent of a majority of the members. A certificate over the corporate seal, setting- forth the action taken by the stockholders, or members, and stating the new number of directors, shall be signed by the president and secretary of such corporation or association, and filed in the office of the county clerk of the county where its original articles of incorporation were filed, and a copy of said certificate, certified by such county clerk, shall be filed in the office of the secretary of state, whereupon the number of directoi-s or trustees shall be changed as stated in said certificate. [This section shall apply to all corporations existing under the laws of the State of California, whether organized and incorporated prior to the enactment of this code, or subsequent thereto.] (In effect 90 days from and after April 27, 1917. Stats. 1917, Chap. 210.) Civ. Code, 1917. 147 GENERAL POWERS OF CORPORATIONS. § 362 of stockholders representing a majority of its subscribed capital stock, or, if it has no capital stock, by the vote or written assent of a majority of the members. A certificate over the corporate seal, setting forth the action taken by the stockholders, or members, and stating the new number of di- rectors, shall be signed by the president and secretary of such corporation or association, and filed in the office of the county clerk of the county where its original articles of incorporation were filed, and a copy of said certificate, certified by such county clerk, shall be filed in the office of the secretary of state, whereupon the number of directors or trustees shall be changed as stated in said certificate. Legislation § 361. Added by Stats. 1915, p. 1456. There was an earlier section 361. The history of it is: 1. Added by Code Amdts. 1875-76, p. 75. 2. Eepeal by Stats. 1901, p. 351; unconstitutional. See note, § 4, ante. 3. Eepealed by Stats. 1905, p. 775; the code commissioner saying, "Eepealed, and the matter therein added to § 587a." It related to the consolidation of mining corporations owning adjoining claims. § 361a. Transfer of franchise of corporation not valid with- out consent of stockholders. No sale, lease, assignment, trans- fer or conveyance of the business, franchise and property, as a whole, of any corporation now existing, or hereafter to be formed in this state, shall be valid without the consent of stockholders thereof, holding of record at least two thirds of the issued capital stock of such corporation ; such consent to be either expressed in writing, executed and acknowledged by such stockholders, and attached to such sale, lease, assignment, transfer or conveyance, or by vote at a stockholders' meeting of such corporation called for that purpose ; but with such as- sent, so expressed, such sale, lease, assignment, transfer or conveyance shall be valid; provided, however, that nothing herein contained shall be construed to limit the power of the directors of such corporation to make sales, leases, assign- ments, transfers or conveyances of corporate property other than those hereinabove set forth. Legislation § 361a. Added by Stats. 1903, p. 396. § 362. Amendment of articles of incorporation. Majority vote of directors. Amended articles filed. Changes not per- mitted. Any corporation organized under the laws of this state may amend its articles of incorporation for any or all of the following purposes: (1) To set forth a new name. ^ (2) To alter or repeal any provision appearing in its orig- inal or amended articles of incorporation relative to the pur- § 362 CIVIL CODE. 148 poses for wliieli the corporation is formed, or to set forth, additional powers or pnrposes. (3) To designate a principal place of business other than the place designated in its original or amended articles of incorporation. (4) To state the date to which its existence has been ex- tended. ' (5) To state the number of its directors, as increased or diminished. (6) To state the amount of its capital stock as increased or diminished and the number of shares and the par value thereof, or to change the number of shares and their par value or to provide for the classification of its capital stock into preferred and common shares, in which event there must be set forth a statement of the number of shares of stock to which preference is granted and the number of shares of stock to which no preference is granted, also a clear and suc- cinct statement of the nature and extent of the preference granted, and except as to the matters and things so stated, no distinction shall exist between said classes of stock or the owners thereof; provided, however, that no preference shall be granted nor shall any distinction be made between the classes of stock either as to voting power or as to the statutory or constitutional liability of the holders thereof to the cred- itors of the corporation ; and provided, further, that both the preferred and common shares shall be of the same par value. (7) To change the statement appearing in its original or amended articles of incorporation of the nature and extent of such preference, subject to the above limitations. (8) And generally to provide for any other amendment not contrary to law. The articles of incorporation may be amended as aforesaid by a majority vote of the board of directors of the corporation and by the vote or written assent of the holders of at least two-thirds of the subscribed capital stock of such corporation, or if the corporation has no capital stock then by a majority vote of its board of directors and by the vote or written assent of a majority of the members. Upon the adoption of amended articles of incorporation, a copy of the articles as thus amended shall be certified to as correct by the president and secretary and a majority of the directors of the corporation and the corporate seal . of such corporation shall be affixed to the certificate. Such certificate shall also set forth the proceedings by virtue of which the amended articles were adopted, Avhich proceedings must be in accordance with the provisions of this section above set forth. The copy of amended articles of incorporation, thus certified, shall be filed in the office of the county clerk of the by virtue of which the amended articles were adopted, which proceedings must be in accordance with the provisions of this section above set forth. The copy of amended articles of incor- poration thus certified, shall be filed in the office of [the secre- tary] of state, whereupon such corporation shall have the same powers and the stockholders thereof shall thereafter be subject to the same liabilities as if such amendment had been embraced in the original articles of incorporation. [The secretary of state shall forthwith Issue a certified copy of said amended articles of Incorporation and transmit said copy to the county clerk of the county in which the principal place of business of the corpora- tion was situated at the time said corporation was Incorporated, which copy shall be filed by said county clerk upon payment of the fee prescribed by law.] A copy of such [amended articles of incorporation] certified by the secretary of state, shall be filed In the office of the county clerk of every [other] county in which such corporation has or holds real property. [ 1 Any cor- poration which shall amend its articles of incorporation and shall fail to file copies of its amended articles, as required by the preceding sentence, shall be subject to the penalties and liabil- ities provided in section two hundred ninety-nine for a failure of corporations to file copies of their articles of incorporation in the office of the county clerks of the counties in which they shall purchase, hold, or locate property. Nothing contained in this section must be construed to cure or amend any defect existing in the original articles of incorporation, where such defect is of such character as to render such original articles invalid. And it is hereby expressly provided that no corporation shall amend its articles of incorporation to alter the statements which appear in the original articles, of the names and residences of the first directors or the statements which appear in such originals, of the amount of capital stock subscribed and by whom. Nothing appearing herein shall be construed as permitting a corporation to change its name or its principal place of business, extend or reduce its term of existence, or increase or diminish its nvimber of directors or its capital stock, by amending its articles of incorporation. (In effect 90 days from and after April 29, 1921. Stats. 1921, Chap 134.) Civ. Code, 1921. 362. Amendment of Articles of Incorporation; Majority Vote of Directors. Amended Articles Filed; Changes Not Permitted. Any corporation organized under the laws of this state may amend its articles of incorporation for any or all of the follow- ing' purposes: (1) To set forth a new name. (2) To alter or repeal any provision appearing in its original or amended articles of incorporation relative to the purposes for which the corporation is formed, or to set forth, additional powers or purposes. (3) To designate a principal place of business other than the place designated in its original or amended articles of incor- poration. (4) To state the date to which its existence has been extended. (5) To state the number of its directors, as increased or dimin- ished. (6) To state the amount of its capital stock as increased or diminished and the number of shares and the par value thereof, or to change the nuintaer of shares and their par value or to pro- vide for the classification of its capital stock into preferred and common shares, in which event there must be set forth a state- ment of the number of shares of stock to which preference is granted and the number of shares of stock to which no prefer- ence is granted, also a clear and succinct statement of the nature and extent of the preference granted, and except as to the matters and things so stated, no distinction shall exist between said classes of stock or the owners thereof; provided, however, that no preference shall be granted nor shall any dis- tinction be made between the classes of stock either as to voting power or as to the statutory or constitutional -liability of the holders thereof to the creditors of the corporation; and provided, further, that both the preferred and common shares shall be of the saine par value. (7) To change the statement appearing in its original amended articles of incorporation of the nature and extent of such prefer- ence, subject to the above limitations. (8) And generally to provide for any other amendment not contrary to law. The articles of incorporation may be amended as aforesaid, by a majority vote of the board of directors of the coipoi'ation and by the vote or written assent of the holders of at least two-thirds of the subscribed capital stock of such corporation, or if the corporation has no capital stock then by a majority vote of its board of directors and by the vote or writ- ten assent of a majority of the members. Upon the adoption of amended articles of incorporation, a copy of the articles as thus amended shall be certified to as correct by the president and secretary and a majority of the directors of the corporation and the corporate seal of such corporation shall be affixed to the certificate. Such certificate shall aiso set forth the proceedings 149 • GENERAL POWERS OF CORPORATIONS. § 362 county in which the original articles of incorporation of such corporation Avere filed, and a copy thereof, certified by such county clerk, shall be filed in the of^ce of the secretary of state, whereupon such corporation shall have the same powers, and the stockholders thereof shall thereafter be subject to the same liabilities, as if such amendment had been embraced in the original articles of incorporation. A copy of such copy, certified by the secretary of state, shall be filed. in the office of the county clerk of every county in Avhich such corporation has or holds real property, except only the county in which the original articles of incorporation were filed. Any cor- poration which shall amend its articles of incorporation and shall fail to file copies of its amended articles, as required by the preceding sentence, shall be subject to the penalties and liabilities provided in section two hundred and ninety-nine for a failure of corporations to file copies of their articles of incorporation in the office of the county clerks of the counties in which they shall purchase, hold, or locate property. Noth- ing contained in this section must be construed to cure or amend any defect existing in the original articles of incor- poration, where such defect is of such character as to render such original articles invalid. And it is hereby expressly provided that no corporation shall amend its articles of incor- poration to alter the statements Avhich appear in the original articles, of the names and residences of the first directors or the statements which appear in such originals, of the amount of capital stock subscribed and by whom. Nothing appearing herein shall be construed as permitting a corporation to change its name or its principal place of business, extend or reduce its term of existence, or increase or diminish its num- ber of directors or its capital stock, by amending its articles of incorporation. [Amendment approved 1915 ; Stats. 1915, p. 1457.] iiegislation § 362. 1. Added by Stats. 1885, p. 91, and then read: "Any corporation may amend its articles of association or certificate of incorporation by a majority vote of its board of directors or trus- tees, and by a vote or written assent of the stockholders, representing at least two thirds of the capital 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 secre- tary of the board of directors or trustees of such incorporatiorr, shall be filed in the office or offices where the original or certificates of in- corfioration are required by this- code to be filed; and from the time of so filing such <'opy of the amended articles of association or cer- tificate 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 ori- ginal articles or certificate of incorporation; provided, that the time of the existence of such corporation shall not be by such amendment extended beyond the time fixed in the original articles or certificate 362 CIVIL CODE. • 150 of incorporation; provided further, that such- original and amended articles or certificate of incorporation shall together contain all the matters and things required under which the original articles of asso- ciation or certificate of incorporation were executed and filed; and, provided further, that nothing herein contained shall be construed to cure or amend any defect existing in any original certificate of incor- poration heretofore filed, by reason that such certificate does not set forth the matters required to make the same valid as a certificate of incorporation at the time of its filing; and also provided, that if the assent of two thirds of the stockholders to such amendment has not been obtained, that a notice of the intention to make the amend- ment shall first be advertised for thirty (30) days in some newspaper published iu the town or county, or city and county, 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 diminish its capital stock." 2. Amended by Stats. 1893, p. 131, to read: "Any corporation may amend its articles of association or certificate 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 subscribed capital 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 secretary of the board of directors or trustees of such corporation, shall be filed in the office or offices where the original or certificate of incor- poration are required by this code to be filed; and from the time of so filing such copy of the amended articles of association or cer- tificate 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 ori- ginal articles or certificate of incorporation; provided, that the time of the existence of such corporation shall not be by such amendment extended beyond the time fixed in the original articles or certificate of incorporation; provided further, that such original and amended articles or certificate of incorporation shall together contain all the matters and things required under which the original articles of asso- ciation or certificate of incorporation were executed and filed; and provided further, that nothing herein contained shall be construed to cure or amend any defect existing in any original certificate of incor- poration heretofore filed, by reason that svich certificate does not set forth the matters required to make the same valid as a certificate of incorporation at the time of its filing; and also provided, that if the assent of two thirds of the said stockholders to such amendment has not been obtained, that a notice of the intention to make the amend- ment shall first be advertised for thirty (30) days in some newspaper published in the town or county, or city and county, in which the principal place of business of the association 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 diminish its capital stock." 3. Amendment by Stats. 1901, p. 351; unconstitutional. See note, § 4, ante. 4. Amended by Stats. 1903, p. 411, to read: "Any corporation may amend its articles of incorporation by a majority vote of its board of directors or trustees, and by a vote or written assent of the stock- holders representing at least two thirds of the subscribed capital stock of such corporation; and a copy of the said articles of incorporation, 151 GENERAL POWERS OP CORPORATIONS. § 362 as thus amended, duly certified to be correct by the president and secretary of the board of directors or trustees of such corporation, shall be filed in each office where the original articles of incorporation are, or any copy thereof is, required by this code to be filed; and from the time of so filing such copy of the amended articles of incor- poration, 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 of incorporation; provided, that the time of the existence of such cor- poration shall not be by such amendment extended beyond the time fixed in the original articles of incorporation; provided further, that such original and amended articles of incorporation shall together con- tain all the matters and things required by the laws under which the original articles of incorporation were executed and filed; and, also provided, that if the assent of two thirds of the said stockholders to such amendment has not been obtained, a notice of the intention to make the amendment shall first be advertised for thirty (30) days in some newspaper published in the town, city, or county, or city and county, in which the principal place of business of the 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 diminish its capital stock." 5. Amended by Stats. 1905, p. 775, to read: "Any corporation may amend its articles of incorporation by a majority vote of its board of directors or trustees, and by a vote or written assent of the stock- holders representing at least two thirds of the subscribed capital stock of such corporation, or the written assent of the majority of the mem- bers if there is no capital stock; and a copy of the said articles of incorporation, as thus amended, duly certified to be correct by the president and secretary of the board of directors or trustees of such corporation, shall be filed in the office where the original articles of incorporation are filed, and a certified copy thereof, duly certified by such county clerk, in the office of the secretary of state. A copy of such articles of incorporation, so amended, duly certified by the secre- tary of state, must be filed in the office of the county clerk of every county in which such corporation has or holds property, except only the county in which the original amended articles of incorporation have been filed. Any corporation which shall amend its articles of incorporation and shall fail to file copies of its amended articles, as required by the preceding sentence, shall be subject to the penalties and liabilities provided in section two hundred and ninety-nine for a failure of corporations to file copies of their articles of incorporation in the offices of the county clerks of the counties in which they shall purchase, hold, or locate property, and from the time of so filing such copy of the amended articles of incorporation, such corporation shall have the same powers, and the stockholders thereof shall thereafter be subject to the same liabilities, as if such amendment had been embraced in the original articles of incorporation. Such original and amended articles of incorporation shall together contain all the mat- ters and things required by tlie laws under which the original articles of incorporation were executed and filed. Nothing contained in this section must be construed to cure or amend any defect existing in the original articles of incorporation heretofore filed, in that such articles did not set forth the matters required to make the same valid at the time of filing. If the assent of two thirds of said stockholders, or of the majority of members where there is no capital stock, to such amendment has not been obtained, a notice of the intention to make § 363 CIVIL CODE. 152 such amendment must first be advertised for thirty days in some news- paper published in the town, city, county, or city and county in which the principal place of business of the corporation is located, before the filing of the proposed amendment. Nothing in this section shall be construed to authorize any corporation to increase or diminish its capital stock, change its name, extend its corporate existence, or increase or diminish the number of its directors, without complying with th.e special provisions of this code applicable thereto." 6. Amended by Stats. 1915, p. 1457. § 363. Corporations may own their lots and building's. [Eepealed 1905; Stats. 1905, p. 776.] There was another § 363, which was adopted March 19, 1889. See next section. Corporation may own land and buildings on and in which business transacted: See ante, § 360. Legislation § 363. 1. Added bv Stats. 1889, p. 67; approved March 5, 1889. 2. Repeal by Stats. 1901, p. 3.52; unconstitutional. See note, § 4, ante. 3. Eepealed by Stats. 1905, p. 776; the code commissioner saying, "There were formerly two sections of this number. § 363, as adopted March 5, 1S8'9, is repealed and its provisions amalgamated with § 360. This leaves in force the other § 363, which was adopted March 19, 1889." § 363. Correction of erroneous filing of articles of incor- poration. When articles of incorporation have been prepared, subscribed, and executed in accordance with the provisions of sections tv^^o hundred and ninety and two hundred and ninety- two of the Civil Code, and such original articles filed by error or inadvertence with the clerk of a county other than that named in the articles of incorporation as the county in which the principal place of business is to be transacted, and the secretary of state shall have issued a certificate of incorpora- tion based on a certified copy of such original articles of incor- poration, any stockholder or director of such corporation may petition the superior court of the county in which said original articles of incorporation were filed for an order to withdraw such original articles of incorporation, and file in place thereof a certified copy of the copy thereof on file in the office of the secretary of state. Such petition must be verified, and must state clearly the facts, showing that such articles of incorpora- tion were filed by inadvertence and mistake; and notice of the hearing of said petition must be given for at least ten days before the day of hearing, by publication in a newspaper pub- lished in the county where such petition is filed. Upon the day set for hearing the petition the superior court may grant an order allowing such original articles of incorporation to be withdrawn, and a certified copy of the copy in the office of the secretary of state in the place thereof filed; and the original 153 GENERAL POWERS OP CORPORATIONS. § 365 articles of incorporation must be filed within ten days there- after in the county in which the principal place of business is to be transacted, as stated in such articles of incorporation, and a certified copy of the order allowing such action must be filed with the certified copy in the office of the secretary of state, after which said corporation shall be entitled to all rights and privileges of a private corporation, and the title to any property it may have previously acquired shall not be affected by reason of the failure to file the original articles of incorpo- ration in the first instance. There was another § 363 adopted in 1S89, see prior section. Legislation § 363. Added by Stats. 1889, p. 332; approved March 19, 1889. § 364. Corporations may transfer foreign concessions. Any corporation of this state owning grants, concessions, fran- chises, and properties or any thereof, in any foreign country, may sell and convey the same to the government ' of such foreign country, or to any person or persons, or any corpora- tion or corporations, or association or associations, created by or existing under the laws of this or any other state or the United States, or any foreign government ; provided, however, that the powers hereby granted shall only be exercised by a majority of the entire board of directors of such corporation of this state, with the concurrence in writing of the holders of two thirds in amount of the capital stock thereof. Legislation § 364. Added by Stats. 1899, p. 95; became a law, under constitutional provision, without governor's approval, March 13, 1899. § 365. Restoration of lost records, certificates of stock, etc. "Whenever it shall appear that the minutes, records, seal, assessment-book, stock- journal, stock-ledger, certificate-book, certificate of stock or bonds or other papers or records of any corporation, municipal, quasi or otherwise, in this state, shall have been or shall hereafter be lost or destroyed by conflagra- tion or other public calamity, such corporation, by a vote of its board of directors, or any stockholder or bondholder of such corporation, may petition the superior court of the county, or city and county, in which the principal place of business of such corporation is located, to restore such lost, destroyed, or injured minutes, records, seal, assessment-liook, stock- journal, stock-ledger, certificate-book, certificate of stock or bonds or other papers or records. Such petition shall state the loss, destruction or injury to any such records or docu- ments or certificates of stock or bonds, or other papers or records, or any part or portion thereof, giving the cause of such loss, injury or destruction. On the filing of such petition, duly verified, said superior court shall make an order, fixing a § 365 CIVIL CODE. 154 time and place for the hearing of the same, and directing the clerk of the court to give notice of such a hearing by publica- tion of a notice stating the time and place of the hearing of said petition and the purpose thereof, which time shall not be less than twenty-five nor more than thirty days from the com- pletion of such publication. Notice of such hearing shall be given by publication in some newspaper of general circulation, printed and published in such county, or city and county, where the principal place of business of said corporation is located, and if there be no such newspaper published in said county, or city and county, then in some adjoining county, to be designated by the court or judge thereof, which publication shall be daily (except Sundays) for a period of at least three successive weeks. In case there is no daily newspaper pub- lished in either of said counties then such notice shall be pub- lished once a week for three successive weeks in a weekly newspaper published in such county. A copy of said notice shall also be personally served upon all persons affected thereby residing in the state of California, whose place of resi- dence or place of business is known to the corporation or any of its officers, if such person can be found within the state, which service may be made at an-y time during said period of publication. If the place of business or place of residence of any persons affected by said petition or proceeding is un- known to the corporation or any of its officers, within forty- eight hours after the filing of said petition, a copy of said notice shall be mailed to each of the persons affected by said petition or proceeding whose place of residence or place of business is unknown to said corporation or any of its officers, addressed to them, postage prepaid, at the county seat of the county, or city and county, where the place of business of said corporation is located. In addition to the notice by publica- tion, the petitioner shall address a copy of said notice to each of the stockholders of said corporation, and also to each of the persons affected by said petition, whose names and places of residence or business are known to the corporation or any of its officers, at his place of business or residence, postage pre- paid, which notice shall be mailed to such stockholders or per- sons within forty-eight hours after the filing of said petition. The court before proceeding to hear the case, shall require proof to be made that notice has been published and given as hereinbefore required and service of such notice personally if the same has been so served and if the same has not been so served, an affidavit of the petitioner stating the reasons why such personal service has not been made, shall also be then filed. Upon the completion of said publication, said court 377. Records of What, and How Kept. All corporations for profit are required to keep a record of all their business trans- actions: a journal of all meetings of their directors, members, or stockholders, with the time and place of holding the same, whether regular or special, and if special, its oliject, how authorized, and the notice thereof given. The record must embrace every act done or ordered to be done; who were present, and who were absent; and, if requested by any director, member, or stockholder, the time shall be noted when he entered the meeting or obtained leave of absence therefrom. On a similar reque&t, the ayes and noes must be taken on any proposition, and a record thereof made. On similar request, the protest of any director, member, or stock- holder, to any action or proposed action, must be entered in full. [Such records shall be open to the inspection of any legislative committee, board, commission, or officer of the State of California whose duty it is to inspect or examine the same, andl of r.ny director, member, or [bona fidel stockholder (thereof; provided, however, the board of directors may, by unanimous vote, deny such examination or Inspection to a stockholder who demands the same with intent ta use to the injury of the corporation the in- format'on to be acquired thereby, and a satisfactory showing of such Intent shall be a complete defense to any action or pro- ceeding brought by any such person to- compel the officers of any such corporation to submit any of such records for his Inspection or examination.] (In effect 90 days from and after April 27, V.m. Stats. 1K17, Chap. 730.) Civ. Code, 1917. 155 RECORDS OF CORPORATIONS. § 377 shall have jurisdiction to inquire into and determine the loss, injury or destruction of such minutes, records, seal, assess- ment-book, stock-journal, stock-ledger, certificate-book, certifi- cates of stock or bonds, or other papers and documents, and to fix and determine by its judgment or decree, the ownership of said certificates of stock or bonds and the persons entitled thereto, and to direct such corporation to restore its records, seal, assessment-book, stock- journal, stock-ledger, certificate- book, certificates of stock or bonds or any other paper or record so lost, injured or destroyed, and to issue new bonds or certificates of stock or other paper or document to any per- son or persons to whom the same. may belong or who may be entitled thereto, as determined by the judgment of the court. Any stock, bond or other paper, the ownership of which can- not be determined, shall be found by the court, by its judg- ment, to belong to unknown owners, and in all proceedings of such corporation, including proceedings for assessment of stock, and the collection of such assessment, and the payment of dividends, and notice of sale and sale for delinquent assess- ments, said stock or dividends shall be so designated as belong- ing to unknown owners, without giving the name of the owner thereof or the number of the certificate or series or issue. Legislation § 365. Added by Stats. Extra Session, 1906, p. 84. ARTICLE II. Becords. § 377. Records, of what, and how kept. § 378. Other records to be kept by corporations for profit, and others. § 377. Records, of w^hat, and how kept. All corporations for profit are required to keep a record of all their business transactions; a journal of all meetings of their directors, mem- bers, or stockholders, with the time and place of holding the same, whether regular or special, and if special, its object, how authorized, and the notice thereof given. The record must embrace every act done or ordered to be done ; who were present, and who absent ; and, if requested by any director, member, or stockholder, the time shall be noted when he entered the meeting or obtained leave of absence therefrom. On a similar request, the ayes and noes must be taken on any proposition, and a record thereof made. On similar request, the protest of any director, member, or stockholder, to any action or proposed action, must be entered in full — all such records to be open to the inspection of any director, member, stockholder, or creditor of the corporation. Refusal to permit inspection: See Pen. Code, § 565. § 383 CIVIL CODE. 156 Legislation § 377, Enacted March 21, 1872; based on Stats. 1861, p. 607, § 11; Stats. 1853, p. 169, § 22; Stats. 1853, p. 90, § 18. § 378. Other records to be kept by corporations for profit, and others. In addition to the records required to be kept by the preceding section, corporations for profit must keep a book, to be known as the ''Stock and Transfer Book," in which must be kept a record of all stock ; the names of the stockholders or members, alphabetically arranged; installments paid or un- paid; assessments levied and paid or unpaid; a statement of every alienation, sale, or transfer of stock made, the date thereof, and by and to whom; and all such other records as the by-laws prescribe. Corporations for religious and benevo- lent purposes must provide in their by-laws for such records to be kept as may be necessary. Such stock and transfer book must be kept open to the inspection of any stockholder, mem- ber, or creditor. Legislation § 378. Enacted March 21. 1872; based on Stats. 1861, p. 607, § 11; Stats. 1853, p. 169, § 22. , AETICLE III. Examination of Corporations, etc. § 382. Examination into affairs of corporation, how made by officers of state. § 383. Examination made by the legislature. § 384. Chapter and article may be repealed. [Eepealed.] § 382. Examination into affairs of corporation, how made by officers of state. The attorney-general or district attor- ney, whenever and as often as required by the governor, must examine into the affairs and condition of any corporation in this state, and report such examination, in writing, together with a detailed statement of facts, to the governor, who must lay the same before the legislature ; .and for that purpose the attorney-general or district attorney may administer all neces- sary oaths to the directors and officers of any corporation, and may examine them on oath in relation to the affairs and condi- tion thereof, and may examine the books, papers, and docu- ments belonging to such corporation, or appertaining to its affairs and condition. Permitting inspection of books: See Pen. Code, § 565. Proceedings against corporation unlawfully exercising franchise: See Code Civ. Proc, § 803. Legislation § 382. Enacted March 21, 1872; based on Stats. 1850, p. 350, § 29. § 383. Examination made by the legislature. The legisla- ture, or either branch thereof, may examine into the affairs and condition of any corporation in this state at all times; 378. Other Records to Be Kept by Corporations for Profit and Others. In addicion 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;' installments paid or unpaid; assessments levied and paid or unpaid: a statement of every alienation, sale, or transfer of sitock made, the date thereof, and by and to whom; and all such other records as the b"y-laws prescribe. Corpora- tions 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 books [shall] be open to the inspection of any [officer, bona fide] stockholder, member, or creditor [of the cor- poration.] (In effect 90 days from and after April 27. 1917. Stats. 1917, Chap. 730.) Civ. Code, 1917. 157 EXAMINATION OF CORPORATIONS. § 384 and, for that purpose, any committee appointed by the legisla- ture, or either branch thereof, may administer all necessary oaths to the directors, officers, and stockholders of such cor- poration, and may examine them on oath in relation to the affairs and condition thereof; and may examine the safes, books, papers, and documents belonging to such corporation, or pertaining to its affairs and condition, and compel the pro- duction of all keys, books, papers, and documents by sum- mary process, to be issued on application to any court of record or any judge thereof, under such rules and regulations as the court may prescribe. Permitting inspection of Ijooks: See Pen. Code, § 565. Legislation § 383. Enacted March 21, 1872; based on Stats. 1850, p. 350, § 29. § 384. Chapter and article may be repealed. [Repealed 1907; Stats. 1907, p. 578.] Legislation § 384. 1. Enacted March 21, 1872; based on Stats. 1850, p. 347, § 30; Const. 1849, art. iv, § 31. 2. Eepeai by Stats. 1901, p. 352; unconstitutional. See note, § 4, ante. 3. Repealed by Stats. 1907, p. 578, the repealing act reading, "Section 1. Section three hundred and eighty-four of the Civil Code is hereby repealed; provided however, that this shall not be deemed to repeal or otherwise affect section four hundred and four of said code; and provided further that no rights acquired under the provisions of said section three hundred and eighty-four shall be affected hereby, but the same shall be continued in force under the provisions of said section four hundred and four"; the code commissioner saying, "As a result of the oversight in not repealing § 384 at the time § 404 was added in 1905, there were two sections in the Civil Code containing identical language, one being 384, and the other 404; 384 was not in the proper place, and 404 was. § 384 was therefore repealed in 1907, leaving § 404 intact, and a proviso was added in the repealing act so that any rights acquired under 384 phould not be lost, but continued in force under the provisions of § 404." Note. The constitution of California in force when this code was adopted contained the following section (art. iv, §31): "Corporations may be formed under general laws, but shall not be created by special act, except for municipal purposes. All generjil laws and special acts passed pursuant to this section may be altered from time to time, or repealed." The constitution of 1879 (art. xii, § 1), preserves this sec- tion in the following language: "Corporations may be formed under, general laws, but shall not be created by special act. All laws now in force in this state concerning corporations, and all laws that may be hereafter passed pursuant to this section, may be altered from time to time or repealed." The code commissioners quote the section from the former constitution, and say: "Section 384 was inserted in this code out of an abundance of caution, and not because it was ■ deemed necessary, for there can be but little doubt that the constitu- tional provision quoted at the head of this note enters into and becomes a part of the contract, thereby reserving to the legislature the right to repeal, impair, or alter any law relative to the formation of cor- § 389 CIVIL CODE. 158 porations, even though the result reached would be the dissolution of every corporation organized within the state." The act of 1907 repeal- ing this section contained the following clauses: "provided however, that this shafl not be deemed to repeal or otherwise affect section four hundred and four of said code; and provided further that no rights acquired under the provisions of said section three hundred and eighty-four shall be affected hereby, but the same shall be continued in force under the provisions of said section four hundred and four." AETICLE IV. Judgment Against and Sale of Corporate Property. § 388. Franchise may be treated as property, and sold under execution. § 389. Purchaser to transact business of corporation. § 390. Purchaser may recover penalties, etc. § 391. Corporation to retain powers after sale. § 392. Eedemption. § 393. Sale, where made. § 388. Franchise may be treated as property, and sold under execution. For the satisfaction of any judgment against any person, company, or corporation having any fran- chise other than the franchise of being a corporation, such franchise, and all the rights and privileges thereof, may be levied upon and sold under execution, in the same manner, and with the same effect, as any other property. [Amendment ap- proved 1905; Stats. 1905. p. 409.] Seizure on execution: See Code Civ. Proc, § 688. Legislation § 388, 1. Enacted March 21, 1872 (based on Stats. 1850, p. 347, § 20), and then read: "For the satisfaction of any judgment against a corporation organized for profit, its franchise and all the rights and privileges thereof may be levied upon and sold under execution, in the same manner and with like effect as any other prop- erty." 2. Amended by Code Amdts. 1873-74, p. 208, substituting "author- ized to receive tolls" for "organized for profit." 3. Amended by Stats. 1897, p. 16, to read: "For the satisfaction of any judgment against any person, company, or corporation authorized to receive tolls, the franchise, and all the rights and privileges thereof, may be levied upon and sold under execution, in the same manner, and with the same effect, as any other property." 4. Amendment hj Stats. 1901, p. 352; unconstitutional. See note, § 4, ante. ^ 5. Amended by Stats. 1905, p. 409; the code commissioner saying, "This section as it stood prior to the amendment applied only to cor- porations authorized to receive tolls, and was probably unconstitu- tional as creating a special law where a general law may be made applicable. (See Krause v. Durbrow, 127 Cal. 681.) The amendment makes the section applicable to all corporations." § 389. Purchaser to transact business of corporation. The purchaser at the sale must receive a certificate of purchase of the franchise, and be immediately let into the possession of all property necessary for the exercise of the powers and the 159 JUDGMENT AGAINST AND SALE OF CORPORATE PROPERTY. § 392 receipt of the proceeds thereof, and must thereafter conduct the business of such corporation, with all its powers and privi- leges, and subject to all its liabilities, until the redemption of the same, as hereinafter provided. Legislation § 389. Enacted March 21, 1872. § 390. Purchaser may recover penalties, etc. The pur- chaser or his assignee is entitled to recover any penalties im- posed by law and recoverable by the corporation for an injury to the franchise or property thereof, or for any damages or other cause, occurring during the time he holds the same, and may use the name of the corporation for the purpose of any action necessary to recover the same. A recovery for dam- ages or any penalties thus had is a bar to any subsequent action by or on behalf of the corporation for the same. Legislation § 390, Enacted March 21, 1872. The code commission- ers say: "For this change in the law it is deemed sutficient simply to refer to Monroe v. Thomas, 5 Cal. 470, Thomas v. Armstrong, 7 Cal. 28fi, and Wood v. Truckee Turnpike Co., 24 Cal. 487." § 391. Corporation to retain powers after sale. The per- son, company, or corporation whose franchise is sold, as in this article provided, in all other respects retains the same powers, is bound to the discharge of the same duties, and is liable to the same penalties and forfeitures, as before such sale. [Amendment approved 1905; Stats. 1905, p. 409.] Legislation § 391. 1. Enacted March 21, 1872 (based on Stats. 1850, p. 347, § 26), and then read: "The corporation whose franchise is sold,, as in this article provided, in all other respects retains the same powers, is bound to the discharge of the same duties, and is liable to the same penalties and forfeitures, as before such sale." 2. Amendment by Stats. 1901, p. 352; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1905, p. 409; the code commissioner saying, "The amendment makes the section applicable to persons and com- panies as well as to corporations." § 392. Redemption. Redemption from any such sale may be had as provided in the Code of Civil Procedure in the case of redemptions from sales of real estate on execution. [Amendment approved 1905; Stats. 1905, p. 409.] Legislation § 392. 1. Enacted March 21, 1872, and then read: "The corporation may, at any time within one year after such sale, redeem the franchise, by paying or tendering to the purchaser thereof the sum paid therefor, with ten per cent interest thereon, but without any allowance for the toll which he may in the mean time have received; and upon such payment or tender the franchise and all the rights and privileges thereof revert and belong to the corporation, as if no such sale had been made." 2. Amendment by StatS- 1901, p. 352; unconstitutional. See note, § 4, ante. § 400 CIVIL CODE. 160 3. Amended by Stats. 1905, p. 409; the code commissioner saying, "The amendment makes applicable to an execution sale of franchises the law of redemption applicable to other sales of real property." § 393. Sale, where made. The sale of any franchise under execution must be made in the county in which the corpora- tion has its principal place of business, or in which the prop- erty, or some portion thereof, is situated. [Amendment ap- proved 1905; Stats. 1905, p. 409.] Legislation § 393. 1. Enacted March 21, 1872 (based on Stats. 1850, p. 347, § 28), and then read: "The levy and sale of any franchise under execution may be had in any county in which the president or any director, the treasurer or the secretary of the corporation may reside, or in which the corporation has its principal place of business." 2. Amended by Code Amdts. 1873-74, p. 209, and differed from the amendment of 1903, in that it had the words "upon which the taxes are paid" before "is situated" at end of section. 3. Amendment by Stats. 1901, p. 352; unconstitutional. See note, § 4, ante. 4. Amended by Stats. 1905, p. 409; the code commissioner saying, "Omits the words 'upon which the taxes are paid,' that having appar- ently no relevancy to the section." CHAPTER IV. Extension and Dissolution of Corporations. § 399. Proceedings to disincorporate. [Repealed.] § 400. On dissolution, directors to be trustees for creditors. § 401. Extension of corporate existence. Certificate filed with county clerk and secretary of state. Franchises. § 402. How corporations may continue their existence. [Repealed.] § 403. Title one to apply to all corporations, with certain exceptions. [Repealed.] Legislation Chapter IV. When enacted in 1872, Chapter IV con- tained §§ 399-403. By Stats. 1905, p.. 410, § 403 was repealed, and a new chapter added, in which this section was re-enacted. See post, Legislation Chapter V and Legislation § 403. § 399. Proceedings to disincorporate. [Repealed 1905 ; Stats. 1905, p. 563.] Involuntary dissolution: See Code Civ. Proc, §§ 803 et seq. Voluntary dissolution: See Code Civ. Proc, §§ 1227-1233. Dissolution of co-operative business association: See post, § 653j. Legislation § 399. 1. Enacted March 21. 1872. 2. Repeal by Stats. 1901, p. 352; unconstitutional. See note, § 4, ante. 3. Repealed by Stats. 1905, p. 563; the code commissioner saying, "This section, which purports merely to designate the place in the Code of Civil Procedure where the dissolution of corporations is pro- vided for, does not state any rule of law and constitutes but an im- perfect index to the provisions referred to, and is, therefore, repealed." § 400. On dissolution, directors to be trustees for creditors. Unless other persons are appointed by the court, the directors 401. Extension of Corporate Existence; Certificate Filed With County Clerks and Secretary of State; Franchises. Every cor- poration heretofore or hereafter formed, and existing under the laws of this state, may at any time prior to the expiration of the term of its corporate existence extend such term to a period not exceeding fifty years from the date of such extension. Such extension may be made at any meeting of the stoclvholders, or members, called by the directors [especially] for considering the subject, if voted for by stockholders representing two-thirds of the capital stock; or by two-thirds of the members where there is no capital stock; or may be made upon the written assent of two-thirds of the members or of stockholders repre- senting two-thirds of the capital stock. A certificate of such vote or assent [bearing the corporate seal and] signed and sworn to by the president and secretary and by a majority of the directors of the corporation, [shall be filed] in the office of the secretary of state and thereupon the term of existence of the corporation shall be extended for the period specified in such certificate. [The secretary of state shall forthwith is^ue a cer- tified copy of said certificate and transmit said copy to the county clerk of the county in which the principal place of busi- ness of the corporation was situated at the time said corporation was incorporated which copy shall be filed by said county clerk upon payment of the fee prescribed by law. A copy of such cer- tificate, certified by the secretary of state, shall be filed by such corporation in the office of the county clerk of every county In which said corporation has or holds real property. Any cor- poration which shall fail to comply with the requirements of the preceding sentence shall be subject to the penalties and liabilities provided in section two hundred ninety nine for a failure of corporations to file copies of their articles of Incorporation with the county clerks of the counties in which they shall purchase, hold or locate real property.] The fees for certifying such cer- tificate and filing the same and the certified copy thereof, shall be the same as those prescribed by law for certifying and filing articles of incorporation in such cases. In no event shall such extensions be construed to prolong or extend the duration of any franchise or privilege heretofore granted to any corporation or joint stock company by special legislative act, or by the munici- pal authorities of any county, city, city and county, town or other political subdivision of this state, beyond the term fixed by the provisions of the act, ordinance or resolution conferring such privilege or franchise, or beyond the term fixed for the maximum period of existence of such corporation or joint stock company by laws in force and governing the formation and organization thereof at the time such corporation or joint stock company was formed or organized. (In effect 90 days from and after April 29, 1921. Stats. 1921, Chap. 133.) Civ. Code, 1921. 400. On Dissolution Directors to Be Trustees for Creditors. Unless other persons are appointed by the court, the directors or managers of the affairs of a corporation at the time of its dis- solution are trustees of the creditors and stockholders or mem- bers of the coi-poration dissolved, and have full powers to settle the affairs of the corporation, collect and pay outstanding debts, sell the assets thereof in such manner as the court shall direct, and distribute the proceeds of such sales and all other assets to the stockholders. Such trustees shall have authority to sue for and recover the debts and property of the corporation, and shall be jointly and severally personally liable to its creditors and stockholders or members, to the extent of its property and effects that shall come into their hands. Death, resignation or failure or inability to act shall constitute a vacancy in the position of trustee, which vacancy shall be filled by appointment by the superior court upon petition of any person or creditor interested in the property of such corporation. Such trustees may be sued in any court in this state by any person having a claim against such corporation or its property. Trustees of corporations here- tofore dissolved or whose charters have heretofore been forfeited by law shall have and discharge in the same manner and under the same obligations, all the powers and duties herein prescribed. "Vacancies in the office of trustees of such corporations shall be filled as hereinbefore provided[; provided, however, that any deed executed In the name of such corporation by the president or vice-president and secretary or assistant secretary after a dis- solution thereof or after a forfeiture of the. charter of such cor- poration or after the suspension of the corporate rights, privi- leges and powers of such corporation, which deed shall have been duly recorded In the proper book of records of the county in which the land or any portion thereof so conveyed Is situ- ated, for a period of five years, shall have the same force and effect as if executed and delivered prior to said dissolution, for- feiture or suspension]. (In effect 90 days from and after April 29, 1921. Stats. 1921, Chap. 383.) Civ. Code, 1921. 400. On Dissolution, Directors to Be Trustees for Creditors. )|'] Unless other persons are appointed by the court, the directors or managers of the affairs of a- corporation at the time of its dissolution are trustees of the creditors and stockholders or mem- bers of the corporation dissolved, and have full [powers] to settle the affairs of the corpoiation, [collect and pay outstanding debts, sell the assets thereof in such manner as the court shall direct, and distribute the proceeds of such sales and all other assets to the stockholders. Such trustees shall have authority to sue for and recover the debts and property of the corporation, and shall be jointly and severally personally liable to its creditors and stockholders or members, to the extent of its property and effects that shall come into their hands. Death, resignation or failure or inability to act shall constitute a vacancy in the position of trus- tee, which vacancy shall be filled by appointment by the superior court upon petition of any person or creditor interested In the property of such corporation. Such trustees may be sued In any court in this state by any person having a claim against such corporation or its property. Trustees of corporations heretofore dissolved or whose charters have heretofore been forfeited by law shall have and discharge in the same manner and under the same obligations, all the powers and duties herein prescribed. Vacancies in the office of trustees of such corporations shall be filled as hereinbefore provided.] (In effect 90 days from and after April 27. 1917. Stats. 1917, Chap. 216.) Civ. Code, 1917. F" \ 161 EXTENSION AND DISSOLUTION OF CORPORATIONS. § 401 or managers of the affairs of a corporation at the time of its dissolution are trustees of the creditors and stockholders or members of the corporation dissolved, and have full power to settle the affairs of the corporation. [Amendment approved 1905; Stats. 1905, p. 563.] Iiegislation § 400. 1. Enacted March 21, 1872; based on Stats. 18.57, p. 347, §16; Stats. 1853, p. 169, § 27; Stats. 1853, p. 91, §23; Stats. 1852, p. 199, § 25. The code commissioners say: "This section, appli- cable to many of our corporations, is extended to all." 2. Amendment by Stats 1901, p. 352; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1905, p. 563, substituting "a" for "such," be- fore "corporation," where this word is first printed. § 401. Extension of corporate existence. Certificate filed with county clerk and secretary of state. Franchises. Every corporation heretofore or hereafter formed, and existing under the laws of this state, may at any time prior to the expiration of the term of its corporate existence extend such term to a period not exceeding fifty years from the date of such exten- sion. Such extension may be made at any meeting of the stockholders, or members, called by the directors expressly for considering the subject, if voted for by stockholders represent- ing two thirds of the capital stock ; or by two thirds of the members where there is no capital stock ; or may be made upon the written assent of two thirds of the members or of stock- holders representing two thirds of the capital stock. A certifi- cate of such vote or assent shall be signed and sworn to by the president and secretary and by a majority of the directors of the corporation, and filed in the office of the county clerk where the original articles of incorporation were filed, and a copy certified by such clerk shall be filed in the office of the secretary of state, and thereupon the term of existence of the corporation shall be extended for the period specified in such certificate. The fees for certifying such certificate and filing the same and the certified copy thereof, shall be the same as those prescribed by law for certifying and filing articles of in- corporation in such cases. In no event shall such extension be construed to prolong or extend the duration of any franchise or privilege heretofore granted to any corporation or joint- stock company by special legislative act, or by the municipal authorities of any county, city, city and county, town, or other political subdivision of this state, beyond the term fixed by the provisions of the act, ordinance or resolution conferring such privilege or franchise, or lieyond the term fixed for the maximum period of existence of such corporation or joint- stock company by laws in force and governing the formation and* organization thereof at the time such corporation or joint- Civ. Code — 11 § 403 CIVIL CODE. 162 stock company was formed or organized. [Amendment ap- proved 1907 ; stats. 1907, p. 314.] Extension of term of existence: See Const., art. xii, § 7. Legislation § 401. 1. Enacted March 21, 1872 (based on Stats. 1869- 70, p. 364, §§ 1, 2), and then read: "Every corporation heretofore formed, for any purpose enumerated in this title for which corpora- tions may be formed, for a period of time less than fifty years, may, at any time prior to the expiration of the term of its corporate exist- ence, extend such term to a period not exceeding fifty years from its formation. Such extension must be made at a meeting of the stock- holders or members, after such order of the directors and notice thereof, with such amount of capital stock or number of members represented, and such affirmative vote thereof, as required herein for the increase or diminution of the capital stock, and filing a certificate thereof in the same offices where their articles of incorporation are filed." 2. Amended by Code Amdts. 1873-74, p. 209, to read: "Every cor- poration formed for a period less than fifty years, may, at any time prior to the expiration of the term of its corporate existence, extend such term to a period not exceeding fifty years from its formation. Such extension may be made at any meeting of the stockholders or members, called by the directors expressly for considering the subject, if voted by stockholders representing two thirds of the capital stock; or by two thirds of the members, or may be made upon the written assent of that number of stockholders or members. A certificate of the proceedings of the meeting upon such vote, or upon such assent, shall be signed by the chairman and secretary of the meeting and a majority of the directors, and be filed in the. office of the county clerk where the original articles of incorporation were filed, and a certified copy thereof in the otfice of the secretary of state, and thereupon the term of the corporation shall be extended for the specified period." 3. Amendment by Stats. 1901, p. 353; unconstitutional. See note, § 4, ante. 4. Amended by Stats. 1905, p. 564, (1) at end of sentence beginning "Such extension." changing "that number of stockholders or members" to "two thirds of the members or of stockholders representing two thirds of the capital stock"; (2) in sentence beginning "A certificate," changing (a) "shall" to "must" before "be signed," and (b) "shall be" to "is" before "extended" at end of section; the code commissioner making the same note to this amendment as to that of 1907; q. v., infra. 5. Amended by Stats. 1907, p. 344; the code commissioner saying, "The design of the amendment is to require the written assent of stockholders representing two thirds of the capital stock instead of permitting tw^o thirds in number of the stockholders to act by their written consent." \^^\ " § 402. How corporations may continue their existence. [Repealed 1874; Code Amdts. 1873-74, p. 209.] Legislation § 402. 1. Enacted March 21, 1872. 2. Repealed by Code-Amdts. 1873-74, p. 209. § 403. Title one to apply to all corporations, with certain exceptions. [Repealed 1905; Stats. 1905, p. 410.] There is another section of this number. See next section. Legislation § 403. See supra, Legislation Chapter IV, and infra, Legislation § 403, Chapter V. , At the time fixed for such hearing or at such time thereafter as may be fixed by the court, the court must hear the proofs offered by the petitioner and by any person answering the same, and must make an order and decree, conformable to the proofs, determining and establishing the identity of the persons who were the directors or managers of the affairs of such corporation at the time of its dissolution, and appointing successors for any such directors or managers who may be dead, or who may be unable to or may refuse to act, or appointing trustees in the place of any of such directors or managers whose identity can- not be determined. Any such successor or trustee so appointed, shall thereupon become one of the trustees of the creditors and stockholders or members of such corporation, with the same pow^ers and duties as by section four hundred of this code, and otherwise by law, shall be given to or imposed upwn directors or managers of such corporation upon its dissolution. Said court shall thereafter letain jurisdiction in said proceed- ing to hear and determine all matters pertaining to said trusts, which may arise out of the provisions of section four hundred of this code, or which may not be otherwise expressly provided lor, and to make all necessary orders, judgments and decrees pursuant thereto. The dissolvition of a corporation, as the term is used in this section, shall include any legal termination of corporate exist- ence, whether by forfeiture of charter, expiration of term of existence, dissolution by order of court of competent jurisdic- tion, or otherwise. The provisions of this section shall be cumulative of any other remedy provided by law, and shall not impair or affect any remedy or proceeding otherwise provided by law for settling the affairs of a corporation which has been dissolved. (In effect 90 days from and after April 29, 1921. Stats. 1921, Chap. 96.) Civ. Code, 1921. 402. [New.] Determination of Directors of Dissolved Cor- porations and Settlement of Affairs of Such Corporations. If, upon the dissolution of any corporation, whether heretofore or hereafter occurring, the identity of the directors or managers ot the affairs of such corporation, at the time of such dissolution shall not be otherwise judicially established, any person inter - ested in the property, comprising the assets of such corporation at the time of such dissolution, may file a verified petition in the superior court of the State of California in and for the county wherein was located the principal place of business of such corporation, at the time of its dissolution, setting forth the facts of dissolution of such corporation, the petitioner's interest in the property which formerly comprised the assets of such corporation, the absence of any judicial determination of the identity of the directors or managers of the affairs of such cor- poration at the time of its dissolution, the names and places of residence, so far as known to petition, of the persons who were such directors or managers of the affairs of such corporation (or if any be dead, or unable to act, or their names or places of residence be unknown, then such facts shall be stated), also any other facts pertinent to the relief prayed for, and a request that a decree be entered in said court, establishing the identity of the persons who were such directors or managers of the affairs of such corporation at the time of its dissolution, and for an order appointing successors for any such directors or manag- ers who may be dead or unable to act, or, if it be impossible to determine the identity of all or any of such directors or manag- ers, then for an order appointing trustees of the creditors and stockholders or members of such corporation in the place of such unknown directors or managers. Upon the filing of such petition the clerk of said court shall fix a time and place for hearing said petition, not less than fifteen nor more than thirty days from the filing of said peti- tion, and shall give notice thereof by posting notices in three public places in said county at least ten days before the date fixed for said hearing, and, if the place of residence of any such directors or managers be stated in the petition, then by mailing copies of said notice to each of the persons named in said peti- tion as directors or managers of the affairs of such coi-p.oration at the time of its dissolution, at their respective places of resi- dence as stated in said petition. At any time before the date fixed for such hearing, and person interested in any property formerly comprising the assets of such corporation, or any person named in said petition as one of the directoi-s or managers of the affairs of such corporation, may answer said petition and deny any of the matters contained therein and set forth such affirmative matters as may aid the court in making a proper decree in accordance with the purposes of the petition. 163 GENERAL PROVISIONS AFFECTING CORPORATIONS. § 404 CHAPTER V. General Provisions Affecting Corporations. § 403. Title one to apply to all corporations, with certain exceptions. § 404. Power of the legislature to amend or repeal this part, or any title, chapter, article, or section thereof, and to dissolve all corpora- tions created thereunder. Legislation Chapter V. Added by Stats. 1905, p. 410. See tit. "Legislation" under each section constituting the chapter. § 403. Title one to apply to all corporations, with certain exceptions. The provisions of this title are applicable to every corporation, unless such corporation is excepted from its opera- tion, or unless a special provision is made in relation thereto inconsistent v^dth some provision in this title, in which case the special provision prevails. There is another section of this number. See prior section. Statutes affecting corporations are public: See Code Civ. Proc, § 1898. Legislation § 403. 1. Enacted March 21, 1872, and then constituted the last section of Chapter IV. 2. Repealed by Stats. 1905, p. 410. 3. Re-enacted by Stats. 1905, p. 410, being in the identical language of the repealed section, which was transferred from Chapter IV to the new chapter; the code commissioner saying, "The amendment of 1905 added a new chapter, entitled 'General Provisions Affecting Corpora- tions.' Said chapter is made up of the old § 403, which stood in a chapter entitled 'Extension and Dissolution of Corporations,' and of the matter in old § 384, which stood in a chapter entitled 'Examination of Corporations.' The object of the rearrangement was the placing of the sections under a more appropriate chapter heading." § 404. Povirer of the legislature to amend or repeal this part, or any title, chapter, article, or section thereof, and to dissolve all corporations created thereunder. The legislature may at any time amend or repeal this part, or any title, chap- ter, article, or section thereof, and dissolve all corporations created thereunder; but such amendment or repeal does not, nor does the dissolution of any such corporation, take aw^ay or impair any remedy given against any such corporation, its stockholders or officers, for any liability which has been previ- ously incurred. Legislation § 404. 1. Addition by Stats. 1901, p. 353; unconstitu- tional. See note, § 4, ante. 2. Added by Stats. 1905, p. 410. See ante, Legislation § 403, for code commissioner's note. § 406 CIVIL CODE. 164 CHAPTER VI. Foreign Corporations. § 405. Designation of person on whom process may be served. Service on the secretary of state, when valid. § 406. Foreign corporations, statute of limitations in favor of. Proof of corporate existence. Change of designation. § 407. Foreign railway corporations, rights of in this state. § 408. Foreign corporations to file certified copies of articles of incor- poration. § 409. Foreign corporations, fees to be paid by, on filing certified copies of articles of incorporation. § 410. Foreign corporations failing to comply with law. Legislation Chapter VI. Added by Stats. 1905, p. 630, and then con- tained the present §§ 405—410; the code commissioner saying in his note to §§ 405-407, "These sections codify the statute of 1871-72, p. 826, as amended 189'9. p. Ill, and § 1 of the statute of 1880, p. 21," and in his note to §§ 408-410, '"These sections codify the statute of 1901, p. 108." § 405. Designation of person on whom process may be served. Service on the secretary of state, when valid. Every corporation other than those created by or under the laAvs of this state must, at the time of filing the certified copy of its articles of incorporation, file in the office of the secretary of state a designation of some person residing within the state upon whom process issued by authority of or under any laAV of this state may be served. A copy of such designation, duly certified by the secretary of state, is sufficient evidence of such appointment. Such process may be served on the per- son so designated, or, in the event that no such person is des- ignated, then on the secretary of state, and the service is a valid service on such corporation. [Amendment approved 1907; Stats. 1907, p. 558.] Legislation § 405. 1. Addition by- Stats. 1901, p. 333; unconstitu- tional. See note, § 4, ante. 2. Added by Stats. 1905, p. 630. 3. Amended bj- Stats. 1907, p. 558, substituting "at the time of filing the certified copy of its articles of incorporation" for "within forty days from the time it commences to do business therein." See ante, Legislation Chapter VI, for code commissioner's note. § 406. Foreign corporations, statute of limitations in favor of. Proof of corporate existence. Change of designation. Every corporation which complies with the provisions of this chapter is thereafter entitled to the benefit of the laws of this state limiting the time for the commencement of civil actions, but no corporation not created by or under the laws of this state is entitled to the benefit thereof, nor can any such cor- poration maintain or defend any action or proceeding in any court of this state until the corporation has complied with the A after Apri^ 27. «ect 90 days from and af^_ ^^,^, ,9,7. 405. „^r!S^' Chap. 216.) 405. ^^^tn r CbaP. 2^6-) 1917. Stats. 1-^lT- \ ®fats. J.9J. -On effect 90 ^ ' ^"ap. 91 fl . ■^" day; 216.) ''^ys from "'^^ 3"d after 4. . 408. Repealed. (In effect 11117. Stats. i;)17, Chap. 210.) no days ftom and after April 27, Civ. Code, 1917. 165 FOREIGN CORPORATIONS. § 408 provisions of the preceding section. In any action or proceed- ing instituted against any body styled as a corporation, but not created by nor under the laws of this state, evidence that such body has acted as a corporation, or employed methods usually employed by corporations, must be received by the court for the purpose of proving the existence of such corpora- tion, the sufficiency of such evidence to be determined by the court with like effect as in other cases. Every corporation which has complied with the laws then in force, requiring it to make and file a designation of the person upon whom process against it may be served, need not make or file any further designation. Any designation heretofore or hereafter made may be revoked by the filing by the corporation with the secre- tary of state of a writing stating such revocation. Within forty days after the death or removal from the state of any person designated by the corporation, or after the revocation of the designation, the corporation must make a new designa- tion, or be subject to the provisions and penalties of this chapter. Certificate of place where summons may "be served on; recording: See post, § 1163. Legislation § 406. 1. Addition by Stats. 1901, p. 353; unconstitu- tional. See note, § 4, ante. 2. Added by Stats. 1905, p. 630. See ante, Legislation Chapter VI, for code commissioner's note. § 407. Foreign railway corporations, rights of in this state. Every railway or other corporation organized for the purpose of carrying freight or passengers under or by virtue of the laws of the United States, or of any state or territory thereof, may build railroads, exercise the right of eminent domain, and transact any other business which it might do if it were created and organized under or by virtue of the laws of this state, and has the same rights, privileges, and immunities, and is subject to the same laws, penalties, obligations, and burdens as if created or organized under and by virtue of the laws of this state. Nothing contained in this section shall be construed to exempt any corporation from any ditty or liability imposed upon it by any of the provisions of this chapter. Legislation § 407. 1. Addition by Stats. 1901, p. 354; unconstitu- tional. See note, §4, ante. 2. Added by Stats. 1905, p. 631. See ante. Legislation Chapter VI, for code commissioner's note. § 408. Foreign corporations to file certified copies of articles of incorporation. Every corporation organized under the laws of another state, territory, or of a foreign country, which is now doing business in this state, or is maintaining an office herein, or which shall hereafter do business in this state or § 410 CIVIL CODE. 166 maintain an office herein, or which shall enter this state for the purpose of doing business herein, must file in the office of the secretary of state of the state of California a certified copy of its articles of incorporation, or of its charter, or of the statute or statutes, or legislative, or executive, or govern- mental act or acts creating it, in eases where it has been created by charter, or statute, or legislative, or executive, or governmental act, duly certified by the secretary of state, or other officer authorized by the law of the jurisdiction under which such corporation is formed to certify such copy, and a certified copy thereof, duly certified by the secretary of state of this state, in the office of the county clerk of the county where its principal place of business is located, and also where such corporation owns property. [Amendment approved 1907; Stats. 1907, p. 559.] Legislation § 408. 1. Added by Stats. 1905, p. 631. 2. Amended by Stats. 1907, p. 559, adding "duly certified by the secretary of state, or other otScer authorized by the law of the juris- diction under which such corporation is formed to certify such copy." See ante, Legislation Chapter VI, for code commissioner's note. § 409. Foreign corporations, fees to be paid by, on filing certified copies of articles of incorporation. For filing and issuing a certified copy as required in section four hundred and eight of this code, corporations formed under the laws of another state, or of a territory, or of a foreign country, must pay the same fees as are paid by corporations formed under the laws of this state. Legislation § 409. Added by Stats. 1905, p. 631. See ante, Legis- lation Chapter VI, for code commissioner's note. § 410. Foreign corporations failing to comply with law. Every corporation organized under the laws of another state, or territory, or of a foreign countiy. which shall neglect or fail, within ninety days from the taking effect of this section, to comply with the conditions of sections 408 and 409 of this code, shall be subject to a fine of not less than five hundred dollars, to be recovered in any court of competent jurisdiction ; and it is hereby made the duty of the secretary of state, as he may be advised that corporations are doing business in contra- vention of sections 408 and 409 of this code, to report the fact to the governor, who shall instruct (1) the district attorney of the county wherein such corporation has its principal place of business, or (2) the attorney general of the state, or both, as soon as practicable, to institute proceedings to recover the fine provided for in this section, and the amount so recovered must be paid into the state treasury to the credit of the general fund of the state; in addition to which penalty, no foreign 409. Repealed. (In effect 90 days from and after ^Pril 27. 19* Stats. 1917. Chap. 216.) Civ. Code, 1917. 410. Repealed. (In effect 90 days from and after April 27, 1917. Stats. 1917, Chap. 216.) Civ. Code, 1917. 167 FOREIGN CORPORATIONS. § 410 corporation which shall fail to comply with sections 408 and 409 of this code can maintain any suit or action in any of the courts of this state, or acquire or convey any legal title to any real property within this state, until it has complied with said sections; provided, that any such corporation which, prior to the eio'hth day of March, nineteen hundred and one, shall have complied with the provisions of the act entitled "An act to amend 'An act in relation to foreisjn corporations.' approved April first, eighteen hundred and seventy-two," approved March seventeenth, eighteen hundred and ninety-nine, is ex- empted from the provisions of this section and the two sec- tions next preceding. [Amendment approved 1911 ; Stats. 1911, p. 1113.] Legislation § 410. 1. Added by Stats. 1905, p. 631. See ante, Legis- lation Chapter VI, for code commissioner's note. As enacted in 1905 it read: "Every corporation orofanized under tlie laws of another state, territory, or of a foreign country, which shall neglect or fail, within ninety days from the taking effect of this section, to comply with the conditions of sections four hundred and eight and four hundred and nine of this code, shall be subject to a fine of not less than five hundred dollars, to be recovered in any court of competent jurisdic- tion; and it is hereby made the duty of the secretary of state, as he may be advised that corporations are doing business in contravention of sections four hundred and eight and four hundred and nine of this code, to report the fact to the governor, who shall instruct the district attorney of the county wherein such corporation has its principal place of business, or the attorney-general of the state, or both, as soon as practicable, to institute proceedings to recover the fine provided for in this section, and the amount so recovered must be paid into the state treasury to the credit of the general fund of the state; in addi- tion to which penalty, no foreign corporation which shall fail to com- ply with sections four hundred and eight and four hundred and nine of this code can maintain any suit or action in any of the courts of this state until it has complied with said section; provided, that any such corporation which, prior to the eighth day of March, nineteen hundred and one, shall have complied with the provisions of the act entitled 'An act to amend "An act in relation to foreign corporations." approved April one, eighteen hundred and seventy-two,' approved March seventeen, eighteen hundred and ninety-nine, is exempted from the provisions of this section ami the two sections next preceding." 2. Amended by Stats. 1911, p. 1113. 414 CIVIL CODE. 168 TITLE 11. Insurance Corporations. Chapter I. General Provisions. §§ 414-422. II. Fire and Marine Insurance Corporations. §§ 424-432. III. Mutual Life, Health, and Accident Insurance Corporations. §§ 437-452. IV. Mutual Benefit and Life Associations. §§ 452a, 453. V. Corporations to Discover Fire and Save Property and Human Life from Destruction Thereby. §§ 453a-453c. VI. Life, Health, Accident, and Annuity or Endowment Insurance on the Assessment Plan. §§ 453d-453p. VII. Title Insurance Corporations. §§ 453s-453z. VIII. Mortgage Insurance. §§ 453aa-453hh. Legislation Title II. When enacted in 1872, Title II contained Chap- ters I-III. Chapters IV-VI were added in 1905. See tits. "Legisla- tion" under these chapters and under the sections constituting the same. CHAPTER I. General Provisions. § 414. Subscriptions to capital stock opened, and how collected. § 415. Purchase and conveyance of real estate. § 416. Policies, how issued and by whom signed. § 417. Dividends, of what, and when declared. § 418. Directors liable for loss on insurance in certain cases. § 419. Capital to be at least two hundred thousand dollars. [Eepealed.] § 420. Exception, capital of one hundred thousand dollars. [Repealed.] § 421. Investment of capital. [Repealed.] § 421. Legal investments of insurance companies. § 422. Report on stocks and bonds held by insurance companies. How valued. § 414. Subscriptions to capital stock opened, and how col- lected. After the secretary of state issues the certifieate of in- corporation, as provided in article one, chapter one, title one, of this part, the directors named in the articles of incorporation must proceed in the manner specified, or in their by-laws, or if none, then in such manner as the}' may by order adopt, to open books of subscription to the capital stock then unsub- scribed, and to secnre subscriptions to the full amount of the tixed capital ; to levy assessments and installments thereon, and to collect the same, as in chapter two of title one provided. Insurance. In general: See post, §§ 2527-2766. Legislation § 414. 1. Enacted March 21. 1872; based on Stats. 1S65- 66, p. 755, S S; p. 743, § 14. 2. Amendmojit by Stats. 1901, ]>. 354; unconstitutional. See note, § 4, ante. 169 GENERAL PROVISIONS INSURANCE CORPORATIONS. § 416 § 415. Purchase and conveyance of real estate. No insur- ance corporatio]! may purchase, hold or convey real estate, ex- cept as hereinafter set forth, to wit : 1. The buildino; in which it has its principal office and the land npon which it stands. 2. Also, such as may be requisite for its accommodation in the convenient transaction of its business. 3. Also, such as may be conveyed to it, or to any person for it, by way of mortj^ag^e, or in trust or otherwise, to secure or provide for the payment of loans previously contracted or for moneys due. 4. Also such as may be purchased at sales upon deeds of trust, or judgments obtained or made for such loans or debts; 5. Also such as may be conveyed to it in satisfaction of debts previously contracted in the course of its dealings. All such real estate, mentioned in subdivisions three, four and five, so acquired, Avhich is not requisite for the accommo- dation of such corporation in the transaction of its business, must be sold and disposed of within five years after such cor- poration acquired title to the same. [Amendment approved 1905; Stats. 1905, p. 21.] Legislation § 415. 1. Enacted March 21, 1872 (based on Stats. 1865- 66, p. 756; Stats. 1867-68, p. 341), and then read: "No insurance cor- poration must purchase, hold, or convey real estate, except as herein- after set forth, to wit: 1. Such as is requisite for its accommodation in the convenient 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 trust or judgments obtained or made for such loans or debts; 4. Such as is conveyed to it in satisfaction of debts previously eonfraeted in the course of its dealings. All such real estate so acquired, which is not requisite for the accommodation of such corporation in the trans- action 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 years, unless the corpora- tion first procures a certificate from the insurance commissioner that the interest of the corporation will suffer materially by a forced sale of such real estate, in which event the time for the sale may be ex- tended to such time as the insurance commissioner directs in the cer- tificate." 2. Amendment by Stats. 1901, p. 354; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1905, p. 21. § 416. Policies, how issued and by whom signed. All policies made by insurance corporations must be subscribed by the president or vice-president, or in ease of the death, absence, or disability of those officers, by any two of the directors, and counter-signed by the secretary of the corpora- § 421 CIVIL CODE. 170 tion. All such policies are as binding and obligatory npon the corporation as if executed over the corporate seal. Legislation § 416. Enacted March 21, 1872; based on Stats. 1865-66, - p. 748, § 20. § 417. Dividends, of what, and when declared. The direct- ors of every insurance corporation, at such times as their by- laws provide, must make, declare, and pay to the stockholders dividends of so much of the net profits of the corporate busi- ness and interest on capital invested as to them appears advisable ; but the moneys received and notes taken for premium on risks which are undetermined and outstanding at the time of making the dividend must not be treated as profits, nor divided, except as provided in chapter two of this title. Declaring dividends: See ante, § 309. Legislation § 417. 1. Enacted March 21. 1872; based on Stats. 1865- 66, p. 748, § 21. 2. Amendment by Stats. 1901, p. 355; unconstitutional. See note, § 4, ante. § 418. Directors liable for loss on insurance in certain cases. If any insurance corporation is under liabilities for losses to an amount equal to its capital stock, and the president or directors, after knowing the same, make any new or further insurance, the estates of all who make such insurance, or as- sent thereto, are severally and .jointly liable for the amount of any loss which takes place under such insurance. Legislation § 418. 1. Enacted March 21, 1872; based on Stats. 1865- 66, p. 743, § 13. 2. Amendment by Stats. 1901, p. 355; unconstitutional. See note, § 4, ante. § 419. Capital to be at least two hundred thousand dollars. [Repealed 1907; Stats. 1907, p. 141.] Legislation § 419. 1. Enacted March 21, 1872. 2. Amended by Code Amdts. 1873-74, p. 269. 3. Amended by Code Amdts. 1877-78, p. 80. 4. Amendment by Stats. 1901, p. 355; unconstitutional. See note, § 4, ante. 5. Eepealed by Stats. 1907, p. 141. § 420. Exception, capital of one hundred thousand dollars. [Repealed 1907; Stats. 1907, p. 141.] Legislation § 420. 1. Added by Code Amdts. 1877-78, p. 80. 2. Repealed by Stats. 1907, p. ill. § 421. Investment of capital. [Repealed 1907 ; Stats. 1907, p. 597.] There is another section of this number. See next section. Legislation § 421. 1. Addition l\v Stats. 1901, p. 355; unconstitu- tional. See note, § 4, ante. 421. Legal Investments of Insurance Companies. I. Corpora- tions orgranized under the laws of this state for the transaction of any VAnd of insurance business authorized by such laws may invest their capital, surplus and accumulations in the purchase of, or loans upon, any of the securities specified in [the follow- ing] subdivisions, [to wit:] [(a)] Bonds or interest-bearing notes or obligations of the United States or those for which the faith and credit of the T'nited States are pledged for the payment of principal and interest. [(b) Bonds or interest-bearing notes or obligations of the Dominion of Canada or any province of the Dominion of Canada, or those for which the faith and credit of the Dominion of Canada or any province of the Dominion of Canada are pledged for the payment of principal and interest.] [(c)] Bonds of this state or those for which the faith and credit of the State of California are pledged for the payment of principal and interest, and bonds of any other state [or ter- ritory] in the United States that has not, within five years next preceding such investment by such insurance company, defaulted in payment of any part of either principal or interest due upon any legally authorized bond issue. [(d)] Bonds or interest-bearing notes or obligations issued under authority of law by any [city, city and county,] county, municipality, or school district in this state or in any other state or territory of the United States [or in any ppovince of the Dominion of Canada]; provided, that said [city, city and county,] county, municipality, or school district, or the state, territory [or province] in which it is located has not within two years next preceding such investment by such insurance company defaulted in the payment of any part of either principal or inter- est due upon any legally authorized bond issue. [(e)l Bonds of any permanent road division in this state, [and bonds of any reclamation district, irrigation district, munici- pal water district, county water works district, or of any other district, which are, by the express terms of the law of this state, made legal investments for savings banks or insurance companies.] r(f)] Notes or bonds secured [by mortgage] or deed of trust or other lien upon [improved or unimproved unincumbered real property;] provided, that the principal .so loaned or the entire note or bond issue so secured shnll not exceed sixty per centum of the market value of such real estate, or of such real estate with improvements taken as security at the date of investment; provided, also, in case said loan is made, or said note or bond issue created for a building loan on real estate, that at no time shall the principal so loaned, or the entire outstanding note or bond issue exceed sixty per centum of the market value of the real estate and the actual cost of the improvements thereon taken as security[; provided, also, that real property shall not be deemed to be incumbered or subject to lien within the mean- ing of tliis section by reason of the existence of tax liens or out- standing mineral, oil or timber rights, rights of way, sewer rights, rights in walls, nor by reason of building restrictions or other restrictive covenants, nor when such real property is sub- ject to lease under which rents or profits are reserved to the owner; provided, that security for such loan is a first lien upon such real property and that there is no condition or right of re-entry or forfeiture under which such lien can be cut off, sub- ordinated or otherwise disturbed.] [(g)] Notes or lionds secured hy niortg'age or deed of trust, payment of which is guaranteed by a policy of mortgage insur- ance, and mortgage participation certificates, issued by a mort- gage insurance company in accordance with the provisions of chapter eight of title two of part four of division first of the Civil Code; provided, that no insurance corporation shall make any investment in any of the securities [hereinbefore In this section specified at a cost] exceeding the market value of such security, at the date of such investment. [(h) Collateral trust bonds or notes when secured by either [(I) Deposit of bonds or notes authorized for investment by this section of a market value at least fifteen per centum In excess of the par value of the collateral trust bonds or notes issued; or [(2) Deposit of bonds authorized for investment by this section and other securities of a combined market value at least twenty per centum In excess of the par value of the collateral trust bonds or notes issued; provided, that the part value of said col- lateral trust bonds or notes shall in no case exceed the market value of that portion of the security represented by bonds authorized for investment by this section. [(3) Deposit of any notes or bonds authorized for Investment by this section and other securities of a combined market value of at least thirty per centum in excess of the par value of the collateral trust bonds or notes issued; provided, that the par value of such collateral trust bonds or notes issued shall In no case exceed the market value of that portion of the security represented by notes or bonds hereinbefore in this section author- ized for investment; provided, further, that the collateral pledged consist of bonds authorized for investment by this section of the market value of at least seventy-five per centum of the par value of such collateral trust bonds or notes Issued.] [II.] Corporations organized for and engaged in the business of flre, life or marine insurance, may, after the investment of two hundred thousand dollars, and corporations organized for and engaged in the business of transacting any other kind of insur- ance authorized by law, except mortgage insurance, may also, after the investment of one hundred thousand dollars in any of the securities specified in subdivision [I] of this section, invest the balance of their capital, surplus and any accumulations in the purchase of or loans upon the stock of any corporation (except a mining' corporation) organized and carrying on busi- ness under the laws of this state, or the laws of the United States, which stocks have, at the date of such investment, a market value of not less than their paid-in value, or in the pur- chase of, or loans upon, interest-bearing bonds, [notes, or other obligations] issued by a corporation organized under the laws of any state or territory in the United States, [or bonds of any permanent road division, reclamation district, irrigation district, or. any other district of any state which are legal Investments for savings banks of this state. Nothing herein shall authorize the purchase of or loans upon such obligations of any corporation or district which within five (5) years next preceding shall have defaulted In payment of any part of either principal or interest of any bond, note or obligation offered. Stocks, bonds, notes or obligations must, in each case, be rated as first-class securities;] provided, that any inv^estment made, under the provisions of this subdivision of this section shall be approved by a vote of two- thirds of all the directors of the investing corporation. Such approval shall be entered upon the records or minutes of such corporation. Such entry must show the fact of making such investment, the amount thereof, the name of each director vot- ing to approve the same, the amount, character and value of the security purchased or taken as collateral, and if the investment be a loan, the name of the borrower, the rate of interest thereon, and the date when the loan will become due or payable. It shall be the duty of the secretary of any such investing corporation to report in writing during the months of January and July of each year to the insurance commissioner the data above set forth respecting each such investment, and the insurance com- missioner may, if any such investment is not approved by him, rf quire the corporation to sell or dispose of the same. [III.] Life insurance companies may also loan upon their own policies, provided, that the amount so loaned upon each policy shall not exceed the reserve against [such] policy at the time said loan was made; provided, further, that no policy loans whatever .shall ever be used as security which may be deposited with the insurance commissioner under section six hundred Ihirty-four of the Political Code. [The amount loaned by a com- pany upon its own policies shall be credited to said company In determining the amount of deposit required to comply with the provisions of section six hundred thirty-four of the Political Code, and such loans shall be deducted from the net value of the registered policies.] [IV.] Any insurance company of this state doing business in any foreign country may invest so much of its funds as are required to meet its obligation incurred in such foreign country and in conformity to the la^^s thereof, in the same kind of secur- ities issued in such foreign country that such company is by law- allowed to invest in this state, arid subject to the limitations imposed by law in this state. (In effect 90 days from and after April 29, 1921. Stats. 1921, Chap. 824.) Civ. Code, 1921. 421. Legal Investments of Insurance Companies. Corpora- tions organized under the laws of this state for the transaction of any kind of insurance business authorized by such laws may invest their capital, surplus and accumulations in the purchase of, or loans upon any of the securities specified in subdivisions one to five inclusive of this section. 1. Bonds or interest-bearing notes or obligations of the United States or those for which the faith and credit of the United States are pledged for the payment of principal and interest. 2. Bonds' of this state or those for which the faith and credit of the State of California are pledged for tlie payment of prin- cipal and interest and bonds of any other state in the United States that has not, within five years next preceding such in- vestment by such insurance company, defaulted in payment of any part of either principal or interest due upon any legally authorized bond issue. 3. Bonds or interest-bearing notes or obligations issued under authority of law by any county, municipality or school district in this state, or in any other state or territory of the United States; provided, that said county, municipality or school dis- trict Or the state or territory in which it is located has not, within two years next preceding such investment by such insur- ance company, defaulted in payment of any part of either prin- cipal or interest due upon any legally authorized bond issue. 4. Bonds of any permanent road division in this state, and any irrigation district bonds which the law may now or here- after authorize as legal investments for insurance companies; provided, that the total amount of bonds issued by any such irriga- tion district does not exceed sixty per centum of the aggregate market value of the lands within such district, and of the water, water rights, canals, reservoirs, reservoir sites and irrigation works owned or to be acquired or constructed with the proceeds of any such bonds, by such district, such facts in reference to bonds of irrigation districts to be determined by a commission now or hereafter authorized by law to ascertain and report upon such facts. 5. (a) [Notes or bonds secured by first mortgage or deed of trust or other first lien upon real estate, improved or unimproved; provided, that the principal so loaned or the entire note or bond issue so secured shall not exceed sixty per centum of the market value of such real estate, or of such real estate with improvements taken as security at the date of investment; provided, als/o, in case said loan is made, or said note or bond issue created for a building loan on real estate, that at no time shall the principal so loaned or the entire outstanding note or bond issued exceed sixty per centum of the market value of the real estate and the actual cost of the improvements thereon taken as security; or (b) Notes or bonds secured by mortgage or deed of trust, pay- 2.) ment of which is guaranteed by a policy of mortgage insurance, and mortgage participation certificates, issued by a mortgage in- surance company in accordance with the provisions of chapter eight of title two of part four of division first of the Civil Code; provided, that no insiurance corporation shall make any invest- ment in any of the securities specified in subdivisions one, two, three, four and five of this section in an amount exceeding the maiket value of such security, at the date of such investment. 6. Corporations organized for and engaged in the business of Are, life or marine insurance, may, after the investment of two hundred thousand dollars, and corporations organized for and en- gaged in the business of transacting any other kind of insurance authorized by law, except mortgage insurance, may also, after the investment of one hundred thousand dollars in any of the securities specified in subdivisions one, two, three, four and five of this sec- tion, invest the balance of their capital, surplus and any accumu- lations in the purchase of or loans upon the stock of any corpora- tion (except a mining corporation) organized and carrying on busi- ness under the laws of this state, or the laws of the United States, which stocks have, at the date of such investment, a- market value of not less than their paid-in value, or in the purchase of, or loans upon, interes-t-bearing bonds issued by a corporation organ- ized under the laws of any state or territory in the United States, which corporation has net, within five years next preceding the date of such investment, defaulted in payment of any part of either principal or interest of any bond of the issue of which the bonds which comprise such investment form a part, and which stocks or bonds must, in each case, be rated as first-class securi- ties; provided, that any investment made, under the provisions of this subdivision of this section shall be approved by vote of two- thirds of all the directors of the investing corporation. Such approval shall be entered upon the records or minutes of such corporation. Such entry must show the fact of making such investment, the amount thereof, the name of each director voting to approve the same, the amount, character and value of the security purchased or taken as collateral, and if the investment be a loan, the name of the borrower, the rate of interest thereon, and the date when the loan will become due or payable. It shall be the duty of the secretary of any such investing corporation to report in writing during the months of January and July of each year to the insurance commissioner, the data above set forth re- specting each such investment, and the insurance commissioner may, if any such investment is not approved by him, require the corporation to sell or dispose of the same. 7. life insurance companies may also loan upon their own policies; provided, that the amount so loaned upon each policy shall not exceed the reserve against said policy at the time said loan is made; provided, further, that no policy loans whatever shall ever be used as security which may be deposited with the insur- ance commissioner under section six hundred thirty-four of the Political Code; and provided, further, that whenever any such loan in any amount is made on a policy registered with the insur- ance commissioner under said section six hundred thirty-four of the Political Code, such registration shall be forthwitli canceled. [8. Any insurance company of this state doing business In any foreign country may Invest so much of its funds as are required to meet Its obligation Incurred in such foreign country and In conformity to the laws thereof, In the same kind of securities Issued In such foreign country that such company Is by law allowed to Invest In this state, and subject to the limitations Im- posed by law In this state.] (In effect 90 days from and after Apiil 27, 1917. Stats. 1917, Chap. 619.) Civ. Code, 1917. 171 GENERAL PROVISIONS — INSURANCE CORPORATIONS. § 421 2. Added by Stats. 1905, p. 34; approved March 3, r905. 3. Repealed by Stats. 1907, p. 597; the repealing act reading, "Sec- tion 1. Section four hundred and twenty-one of the Civil Code, as approved March 3, 1905, is hereby repealed. Sec. 2. Nothing herein contained shall be deemed to repeal any of the provisions of section four hundred and twenty-one of said code, as approved March 21, 1905, and any rights acquired under said section 421, as approved March 3, 1905, shall be preserved under the provisions of said section four hundred and twenty-one, as approved March 21, 1905." The code commissioner says of this repeal: "There being two sections 421, re- ferring to the same subject, one approved March 3, 1905, and" the other approved March 21, 1905, the former was repealed and the latter left intact. Note the provisions of sec. 2 of the repealing act. (Stats. 1907, p. 597.)" § 421. Legal investments of insurance companies. Cor- porations organized under the laws of this state for the trans- action of any kind of insurance business authorized by such laAvs may invest their capital, surplus and accumulations in the purchase of, or loans upon any of the securities specified in subdivisions one to five inclusive of this section. 1. United States bonds. Bonds or interest-bearing notes or obligations of the United States or those for which the faith and credit of the United States are pledged for the payment of principal and interest. 2. State bonds. Bonds of this state or those for which the faith and credit of the state of California are pledged for the payment of principal and interest and bonds of any other state in the United States that has not, within five years next preceding such investment by such insurance company, de- faulted in payment of any part of either principal or interest due upon any legally authorized bond issue. 3. County, etc., bonds. Bonds or interest-bearing notes or obligations issued under authority of law by any county, municipality or school district in this state or in any other state or territory of the United States; provided, that said county, municipality or school district or the state or territory in which it is located has not, within two years next preceding such investment by such insurance company, defaulted in payment of any part of either principal or interest due upon any legally authorized bond issue. 4. Road division, etc., bonds. Bonds of any permanent road division in this state, and any irrigation district bonds which the law may now or hereafter authorize as legal invest- ments for insurance companies; provided, that the total amount of bonds issued_J)y any such irrigation district does not exceed sixty per centum of the aggregate market value of the lands within such district, and of the water, water rights, canals, reservoirs, reservoir sites and irrigation Avorks § 421 . CIVIL CODE. 172 owned or to be acquired or constructed with the proceeds of any such bonds, by such district, such facts in reference to bonds of irrigation districts to be determined by a commis- sion now or hereafter authorized by law- to ascertain and report upon such facts. 5. First mortg-age notes, (a) Notes or bonds secured by first mortgage or deed of trust or other first lien upon real estate, improved or unimproved; provided, that the principal so loaned or the entire note or bond issue so secured shall not exceed sixty per centum of the market value of such real estate, or of such real estate with improvements taken as security at the date of investment ; provided, also, in case said loan is made, or said note or bond issue created for a building loan on real estate, that at no time shall the principal so loaned or the entire outstanding note or bond issue exceed sixty per centum of the market value of the real estate and the actual cost of the improvements thereon taken as security ; or (b) Notes guaranteed by policy of mortg-age insurance. Notes or bonds secured by mortgage or deed of trust, pay- ment of which is guaranteed by a policy of mortgage insur- ance, and mortgage participation certificates, issued by a mortgage insurance company in accordance with the provi- sions of chapter VIII of title II of part IV of division first <^f the Civil Code ; provided, that no insurance corporation shall make any investment in any of the securities specified in subdivisions one, tAvo, three, four and five of this section in an amount exceeding the market value of such security, at the date of such investment. 6. Investment of balance of capital. Corporations or- ganized for and engaged in the business of fire, life or marine insurance, may, after the investment of two hundred thou- sand dollars, and corporations organized for and engaged in the business of transacting any other kind of insurance au- thorized by law, except mortgage insurance, may also, after the investment of one hundred thousand dollars in any of the securities specified in subdivisions one, two, three, four and five of this section, invest the balance of their capital, surplus and any accumulations in the purchase of or loans upon the stock of any corporation (except a mining corporation) or- ganized and carrying on business under the laAvs of this state, or the laws of the United States, which stocks have, at the date of such investment, a market value of not less than their paid-in value, or in the purchase of, or loans upon, interest- l)earing bonds issued by a corporation organized under the laws of any state or territory in the United States, which cor- 173 GENERAL PROVISIONS — INSURANCE CORPORATIONS. § 421 poratioii has not, within five years next preceding the date of such investment, defaulted in payment of any part of either principal or interest of any bond of the issue of which the bonds which comprise such investment form a part, and which stocks or bonds must, in each case, be rated as first class securities ; provided, that any investment made, under the provisions of this subdivision of this section shall be approved by vote of two thirds of all the directors of the investing cor- poration. Such approval shall be entered upon the records or minutes of such corporation. Such entry must show the fact of making such investment, the amount thereof, the name of each director voting to approve the same, the amount, character and value of the security purchased or taken as collateral, and if the investment be a loan, the name of the borrower, the rate of interest thereon, and the date when the loan will become due or payable. It shall be the duty of the secretary of any such investing corporation to report in writing during the months of January and July of each year to the insurance commissioner, the data above set forth respecting each such investment, and the insurance commis- sioner may, if any such investment is not approved by him, require the corporation to sell or dispose of the same. 7. Policy .loans. Life insurance companies may also loan upon their own policies ; provided, that the amount so loaned upon each policy shall not exceed the reserve against said policy at the time said loan is made ; provided, further, that no policy loans whatever shall ever be used as security which may be deposited with the insurance commissioner under sec- tion six hundred thirty-four of the Political Code; and pro- vided, further, that whenever any such loan in any amount is made on a policy registered with the insurance commis- sioner under said section six hundred thirty-four of the Political Code, such registration shall be forthwith canceled. [Amendment approved 1915; Stats. 1915, p. 1532.] Legislation § 421. 1. Addition by Stats. 1901, p. 355; unconstitu- tional. See note. § 4, ante. 2. Added by Stats. 1905, p. 628 (approved March 21, 1905), differing from the amendment of 1907 (see post), (1) in introductory paragraph, having "Corporations" instead of "Companies"; (2) -in subd. 3, not having the words "and duly organized school districts" after "cities and towns"; (3) subd. 4 reading, "4. In loans upon unencumbered real property, which shall be worth, at the time of the investment, at least, forty per cent more than the sum loaned, or upon merchandise or cereals in warehouse, but in no instance shall such loan be made in excess of seventy-five per cent of the security taken"; (4) the first part of subd. G (down to the word "jirovided") reading, "Corporations organized for and engaged in the business of fire, life, health, accident and marine insurance, may, after the investment of two hundred thou- sand dollars, and corporations formed or organized for the transaction 421 CIVIL CODE!. 174 of business mi any kind of insurance not enumerated in section four hundred and nineteen of the Civil Code may, after the investment of one hundred thousand dollars, in the manner provided in subdivisions one, two, three and four of this section, invest the balance of their capital and any accumulations in the purchase of or loans upon the stock of any corporation (except mining companies) organized and carrying on business under the laws of the state of California which have at the time of investment a market value of not less than their paid-in value, and which are rated as first-class securities, or in interest- bearing first-mortgage bonds of same not in default of interest," there- after the subdivision proceeding as at present; (5) subd. 7 having "corporations"' instead of "companies" in first line; (6) the section then having an eighth subdivision, reading, "S. Nothing in this sec- tion contained shall be construed as in any wise affecting the provisions of section four hundred and forty-four of this code." 3. Amended by Stats. 1907, p. S90, to read: "Companies organized under the laws of this state for the transaction of business in any kind of insurance, may invest their capital and accumulations in the following named securities: 1. In the purchase of, or loans upon in- terest-bearing bonds of the United States government. 2. In the pur- chase 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 and duly organized school districts of any state or territory of the United States not in default for interest on such bonds. 4. In loans upon unencumbered real property, no loan to exceed sixty per cent of the market value of any jnece of real estate to be taken as security. 5. Corporations engaged in the busi- ness of insuring titles to real estate may, after the investment of one hundred thousand 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 capital stock, in the preparation or purchase of the materials or plant necessary to enable them to engage in such business; and such material or plant shall be deemed an asset valued at the actual cost thereof, in all state- ments and proceedings required by law for the ascertainment and determination of the condition of such corporations. 6. Companies organized for and engaged in the business of fire, life, health, acci- dent and naarine insurance, may, after the investment of two hun- dred thousand dollars, and companies duly formed or organized for the transaction of business in any other kind of insurance may, after the investment of one hundred thousand dollars, in the manner pro- vided in subdivisions one, two, three and four of this section, invest the balance of their capital and any accumulations in the purchase of or loans upon the stock of any corporation (except mining companies) - organized and carrying on business under the laws of the state of Cali- fornia which bave at the time of investment a market value of not less than their paid-in value, and which are rated as first-class securities, or in interest-bearing, bonds of any corporation of any state or terri- tory of the United States not in default of interest; provided, that a two-thirds vote of all the directors of such corporations shall approve such investment. It shall be the duty of the ofiieers of such corpora- tion to report quarterly during the months of January, April, July and October of each year to the insurance commissioner a list of such investments 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 investment in the securities named in sub- 175 GENERAL PROVISIONS — INSURANCE CORPORATIONS. § 421 divisions one, two, three and six of this section must be made in an amount exceeding the market value of such securities, at the date of such investment. 7. life insurance companies may loan upon their own policies; provided that the amount so loaned upon each policy shall not exceed the reserve against said policy at the time said loan is made; provided further, that no policy loans whatever shall ever be used as security which may be deposited with the insurance commissioner under section six hundred and thirty-four of the Political Code; and provided further, that whenever any such loan in any amount is made on a policy registered with the insurance commissioner under said section six hundred and thirty-four of the Political Code, such registration shall be forthwith canceled." 4. Amended by Stats. 1913, p. 487, to read: "Companies organized under the laws of this state for the transaction of business in any kind of insurance may invest their capital and accumulations in the following named securities: l.In the purchase of, or loans upon interest- bearing bonds of the United States, or those for which the faith and credit of the United States are pledged for the payment of principal and interest. 2. 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, including bonds of this state, »t those for which the faith and credit of the state of California are pledged for the payment of principal and interest. 3. In the purchase of, or loans upon interest-bearing bonds of any of the counties and incor- porated cities and towns and duly organized school districts of any state or territory of the United States not in default for interest on such bonds. 4. In the purchase of, or loans upon interest-bearing bonds of irrigation districts as provided or authorized by section 8 of an act entitled 'An act relating to bonds of irrigation districts, providing un- der what circumstances such bonds may be made legal investments for the funds of banks, banking associations, trust companies, insurance companies, and for the state school funds and trust funds, and provid- ing for the deposit of such bonds as security for public moneys, and providing for a commission for approving certain bonds of irrigation districts, for a report thereon, for the filing of such report, for a certificate of the state controller, and for the recording of such bonds in the office of the state controller,' approved December 18, 1911. 5. In loans secured by mortgage or deed of trust upon unencumbered real estate, improved or unimproved, or in the purchase of, or loans upon notes or bonds so secured; provided, that the principal so loaned, or the entire note or bond issue under such mortgage or deed of trust shall not exceed' sixty per centum of the market value of such real estate with improvements taken as security; and provided, further, in case said loan is made, or said note or bond issue created for a build- ing loan on real estate, that at no time shall the principal so loaned or the entire note or bond issue exceed sixty per centum of the market value of the real estate and the actual cost of the improvements thereon taken as security. 6. Companies organized for and engaged in the busi- ness of fire, life, health, accident and marine insurance, may, after the investment of two hundred thousand dollars, and companies duly formed or organized for the transaction of business in any other kind of insur- ance except mortgage insurance may, after the investment of one hun- dred thousand dollars, in the manner provided in subdivisions 1, 2, 3, 4 and 5 of this section, invest the balance of their capital and any ac- cumulations in the purchase of or loans upon the stock of any corpora- tion (except mining companies) organized and carrying on business un- der the laws of the state of California which have at th^ ^ime of invest- § 422 CIVIL CODE. 176 meut a market value of not less than their paid-in value, and which are rated as first-class securities, or in interest-bearing bonds of any corporation of any state or territory of the United States not in de- fault for interest on such bonds; provided, that a two-thirds vote of all the directors of such corporation shall approve such investment. It shall be the duty of the officers of such corporation to report quarterly during the months of .January, April, July and October of each year to the insurance commissioner a list of such investments so made by them, and the insurance commissioner may, if such investment, or any of them, seem injudicious to him, require the sale of the same. But no investment in the securities named in subdivisions 1, 2, 3, 4 and 6 of this section must be made in an amount exceeding the market value of such securities, at the date of such investment. 7. Life insurance companies may loan upon their own policies; pro- vided, that the amount so loaned upon each policy shall not exceed the reserve against said policy at the time said loan is made; pro- vided, further, that no policy loans whatever shall ever be used as security which may be deposited with the insurance commissioner under section 634 of the Political Code; and provided, further, that whenever any such loan in any amount is made on a policy registered with the insurance commissioner under said section 634 of the Political Code, such registration shall be forthwith canceled." 5. Amended by Stats. 1915, p. 1532. See ante, Legislation § 421, for repealed section of the same number and same subject. § 422. Report on stocks and bonds held by insurance com- panies. How valued. If any domestic insurance corporation shall have invested any of its funds in or loaned any of its funds upon the stock, bonds or other evidences of debt of other corporations or of any nation, state, county, city, village, school district, municipality, or other civil division of any state, pursuant to the laws of this state, and the insurance commis- sion shall have reason to believe that such stock, bonds or.'other evidences of debt are not amply secured or are not yielding an income, he may direct it to report to him under oath the amount thereof, the security therefor and its market value. No stock and no bond or other evidence of debt if in default as to principal or interest, or if not amply secured, shall be valued as an asset of the corporation above its market value. All bonds or other evidences of debt held by any insurance corpo- ration authorized to do business in this state, if amply secured and if not in default as to princii)al or interest, may in the dis- cretion of the insurance commissioner, be valued as follows : If purchased at par at the par value ; if purchased above or below par, on the basis of the purchase price adjusted so as to bring the value to par at maturity and so as to yield the effec- tive rate of interest at which the purchase was made ; provided, that the purchase price shall in no case be taken at a higher figure than the actual market value at the time of purchase ; and provided, further, that the insurance commissioner shall have full discretion in determining the method of calculating values according to the foregoing rule, and the values found 177 FIRE AND MARINE INSURANCE CORPORATIONS. § 425 by him in accordance with such method shall be final and binding; provided, also, that any such corporation may return such bonds or other evidence of debt at their market value or their book value, but in no event at an aggregate value exceed- ing the aggregate of the values calculated according to the foregoing rule. Legislation § 422. Added by Stats. 1913, p. 464. CHAPTER II. Fire and Marine Insurance Corporations. § 424. Payment of subscriptions. Capital to be all paid in twelve months. § 425. Certificate of capital stock paid up to be filed, and when. § 426. Property which may be insured. § 427. Funds may be invested, how. [Repealed.] § 428. Limit of one risk. § 429. Ainounts to be reserved before making dividends. § 430. Reservation by companies with less than two hundred thousand dollars capital. § 431. Amounts to be reserved by life insurance companies. [Repealed.] § 432. Corporations for insuring titles to real estate. [Repealed.] § 424. Payment of subscriptions. Capital to be all paid in twelve months. The entire capital stock of every fire or ma- rine insurance corporation must be paid up in cash within twelve months from the filing of the articles of incorporation, and no policy of insurance must be issued or risk taken until twenty-five per cent of the whole capital stock is paid up. Fire insurance: See post, §§ 2752 et seq. Marine insurance: See post, §§ 2655 et seq. County fire insurance companies. Act providing for: See post, Ap- pendix, tit. "Insurance." Legislation § 424. Enacted March 21, 1872; based on Stats. 1865-66, p. 743, § 5. § 425. Certificate of capital stock paid up to be filed, and when. The president and a majority of the directors must, Avithin thirty days after the payment of the twenty-five per cent of the capital stock, and also within thirty days after the payment of the last installment 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 executed, with the insurance commissioner. Legislation § 425. Enacted March 21, 1872; based on Stats. 186i"-66, p. 743, § 10. Civ. Code— 12 § 429 CIVIL CODE. 178 § 426. Property which may be insured. Every corporation formed for fire or marine insurance, or both, may make insur- ance on all insurable interests within the scope of its articles of incorporation, and may cause itself to be reinsured. Insurable interest, defined: See post, § 2546. Legislation § 426. Enacted March 21. 1872; based on Stats. 1865-66, p. 743, § 8. § 427. Funds may be invested, how. [Repealed 1905 ; Stats. 1905, pp. 34, 628.] Legislation § 427. 1. Enacted March 21, 1872. 2. Amended by Code Amdts. 1873-74, p. 210. 3. Amended by Code Amdts. 1877-78, p. 81. 4. Amended by Stats. 1887, p. 22. 5. Amended by Stats. 1899, p. 66. 6. Repeal by Stats. 1901, p. 357; unconstitutional. See note, § 4, ante. 7. Repealed by Stats. 1905, pp. 34, 628; both repeals being embraced in the titles of the acts of 1905 adding the two sections numbered 421, q. v., ante, Legislation § 421. § 428. Limit of one risk. Fire and marine insurance cor- porations must never take, on any one risk, whether it is a marine insurance or an insurance against fire, a sum exceeding one tenth part of their capital actually paid in, and intact at the time of taking such risk, without at once reinsuring the excess above one tenth. [Amendment approved 1905; Stats. 1905, p. 570.] Legislation § 428. 1. Enacted March 21. 1872; based on Stats. 1865- 66, p. 747, § 15. 2. Amended by Code Amdts. 1873-74, p. 210, (1) omitting "or either" after "corporations" and (2) inserting "and intact at the time of tak- ing such risk" after "paid in." 3. Amendment by Stats. 1901, p. 357; unconstitutional. See note, § 4, ante. 4. Amended by Stats. 1905, p. 570, inserting "at once" before "re- insuring." § 429. Amounts to be reserved before making' dividends. No corporation formed subsequent to April first, eighteen hun- dred and seventy-eight, under the laws of this state, and trans- acting fire, marine or inland navigation insurance business, 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. 179 FIRE AND MARINE INSURANCE CORPORATIONS. § 431 4. A sum sufficient to pay all losses reported or in course of settlement, and all liabilities for expenses and taxes. [Amend- ment approved 1913; Stats. 1913, p. 489.] Declaring dividends. Generally: See ante, § 309. See, also, ante, § 417, as to declaring dividends by insurance companies generally. Legislation § 429. 1. Enacted March 21, 1872 (based on Stats. 1867- 68, p. 328, § 8), (1) the introductory paragraph then reading, "No cor- poration transacting fire or marine insurance business under the laws of this state must make any dividends, except from profits remaining on hand after retaining, unimpaired"; (2) subds. 1 and 2 reading as at present; (3) subd. 3 reading, "3. A fund equal to one half of the amount of all premiums on fire risks and marine time risks not termi- nated at the time of making such dividend"; (4) subd. 4 reading as at present. 2. Amended by Code Amdts. 1877-78, p. 81, (1) changing the intro- ductory paragraph to read, "No corporation, formed hereafter under the laws of this state and transacting fire, marine, inland navigation insurance business, or insurance provided for by section four hundred and twenty of this code, must make any dividends, except from profits remaining on hand after retaining unimpaired"; (2) the section there- after reading as at present. 3. Amended by Stats. 1887, p. 23, changing the introductory para- graph to read: "No corporation formed subsequent to April first, eighteen hundred and seventy-eight, under the laws of this state, and transacting fire, marine, inland navigation insurance business, or in- •surance provided for by section four hundred and twenty (420) of this code, except insurance of the title to real property, must make any dividends except from profits remaining on hand after retaining unimpaired." The section otherwise read as at present. 4. Amended by Stats. 1913, p. 489. § 430. Reservation by companies v^dth less than two hun- dred thousand dollars capital. No fire or marine insurance corporation, with a subscribed capital of less than two hun- dred thousand dollars, must declare any dividends, except from profits remaining on hand after reserving : 1. A sum necessary to form, with the subscribed capital stock, the aggregate sum of two hundred thousand dollars; 2. All the premiums received or receivable on outstanding marine or inland risks, except marine time risks ; 3. A fund equal to one half the amount of all premiums on fire risks and marine time rislis 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. Legislation § 430. Enacted March 21, 1872; based on Stats. 1867-68, p. 328, § 9. § 431. Amounts to be reserved by life insurance companies. [Repealed 1905; Stats. 1905, p. 571.] Legislation § 431. 1. Added by Code Amdts. 1877-78, p. 81. 2. Repeal by Stats. 1901, p. 357; unconstitutional. See note, § 4, ante. !^ 437 CIVIL CODE. 180 3. Eepealed by Stats. 1905, p. 571; the code commissioner saying in his note to §§ 431, 452, "Old § 431, which dealt with the amounts to be received by life insurance companies, and stood in a chapter entitled 'Fire, Marine, and Title Insurance Corporations/ is transferred to a more appropriate chapter, and numbered 452." § 432. Corporations for insuring titles to real estate. [Re- pealed 1913; stats. 1913, p. 489.] Plants of title insurance corporations, power to condemn: See Code Civ. Proc, § 1238, subd. 15. Legislation § 432. 1. Added by Stats. 1887, p. 23. 2. Addition by the code commissioners in 1901, as a new section, numbered § 422, in almost identical language. Stats. 1901, p. 356; un- constitutional. See note, § 4, ante. 3. Eepeal (§432) by Stats. 1901, p. 357; unconstitutional. See note, § 4, ante. 4. Eepealed by Stats. 1913, p. 489. CHAPTER HI. Mutual Life, Health, and Accident Insurance Corporations. § 437. Capital stock. Guarantee fund. § 438. Of what guarantee fund shall consist. § 439. What constitutes, and deticieney in fixed capital. § 440. Declaration of fixed capital to be filed. § 441. Guarantee notes and interest, how disposed of. § 442. Insured to be entitled to vote, when. § 443. Number of directors may be altered, how. § 444. Investment of capital sfock. [Eepealed.] § 445. Limitations to the holding of stock, and in other particulars, may be jirovided for in by-laws. § 446. Premiums, how payable. § 447. Insurance corporations to furnish data to insurance commissioner. Employment of actuary. [Eepealed.] § 448. No stamp required on accident insurance contract. [Eepealed.] § 449. Valuation of policies, retaliatory provisions. [Eepealed.] § 450. Provisions of life insurance policies issued in this state. § 451. Fraternal societies exempt from insurance laws. [Eepealed.] § 452. Dividends, how made. § 437. Capital stock. Guarantee fund. Every corporation formed for the purpose of mutual insurance on the lives or health of persons, or against accidents to persons for life or any fixed period of time, or to purchase and sell annuities, must have a capital stock of not less than two hundred thou- sand dollars. It niust not make any insurance upon any risk or transact any other business as a corporation until its capital stock is fully paid up in cash, nor until it has also obtained a fund, to be known as a "guarantee fund," of not less than two hundred and fifty thousand dollars, as is hereinafter pro- vided. If more than the requisite amount is subscribed, the stock must be distributed pro rata among the subscribers. Any subscription may be rejected by the board of directors or 181 MUTUAL LIFE, HEALTH AND ACCIDENT INSURANCE. § 439 the committee thereof, either as to the whole or any part thereof, and must be, so far as rejected, without effect, noth- ing in this section shall be deemed to contravene any of the provisions of section four hundred and fifty-one. [Amend- ment approved 1905; Stats. 1905, p. 183.] Legislation § 437. 1. Enacted March 21, 1872; based on Stats. 1865- 66, pp. 753, 755, §§ 1, 8. 2. Amendment by Stats. 1901, p. 357; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1905, p. 183, (1) in first sentence, substituting "two" for "one" before "hundred thousand dollars," and (2) adding as a clause at end of final sentence (quaere, new sentence?) "nothing in this section shall be deemed to contravene any of the provisions of section four hundred and fifty-one." § 438. Of what guarantee fund shall consist. The guaran- tee fund mentioned in the preceding section must consist of the promissory notes of solvent parties, approved by the board of directors and by each other, payable to the 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 notes given by any one person must not ex- ceed in the whole the sum of five thousand dollars, exclusive of interest. Such notes must be payable absolutely and at the option of the corporation; they must be negotiable, and may be indorsed and transferred, or converted into cash, or other- wise dealt with by the corporation, at its discretion, without reference to any contingency of losses or expenses. Such notes, or the proceeds thereof, must remain with the corpora- tion as a fund for the better security of persons dealing with it, and constitute the assets of the corporation, liable for all its debts, obligations, and indebtedness next after its assets from premiums and other sources, exclusive of capital stock, until the net earnings, over and above its expenses, losses, and lia- bilities, shall have accumulated in cash, or securities in which the net earnings have been invested, to a sum which, with the capital stock, is equal to the aggregate of the original amounts of the guarantee fund and of the capital stock. Legislation § 438. Enacted March 21, 1872; based on Stats. 1865-6G, p. 755, § 9. §439. What constitutes, and deficiency in fixed capital. The sum accumulated as provided in the preceding section, to- gether with the capital stock, shall become and remain the fixed capital of the corporation, not subject to division among the stockholders or parties dealing with it, or to be expended in any manner otherwise than may be required in payment of § 441 CIVIL CODE. 182 the corporation's debts and actual expenses, until the business of the corporation is closed, its debts paid, and its outstanding ■ policies and obligations of every kind canceled or provided for ; and if from any cause a deficiency at any time occurs in such fixed capital, no further division of profits must take place until such deficiency has been made up. Legislation § 439. Enacted March 21, 1872; based on Stats. 1865-66, p. 755, § 9. § 440. Declaration of fixed capital to be filed. Whenever the fixed capital of the corporation is obtained as hereinbefore provided, the president of the corporation and its actuary, or its secretary, if there is no actuary, must make a declaration in writing, sworn to before some notary public, of the amount of such fixed capital, and of the particular kinds of property composing the same, with the nature and amount of each kind, which must be filed with the original articles of incorporation, and a copy, 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 situ- ated. Upon the filing of such declaration the guarantee fund is discharged of its obligations, and all notes of the fund re- maining in the control of the corporation, and not affected by any lien thereon, or claim of that nature, must be surrendered by it to the makers thereof, respectively, or other parties en- titled to receive the same. Legislation § 440. Enacted March's], 1872; based on Stats. 1865-66, p. 75(3, § U). § 441. Guarantee notes and interest, hov^r disposed of. Un- til the guarantee fund is discharged from its obligations, as provided in the preceding section, no note must be withdrawn from the fund, unless another note of equal solvency is substi- tuted therefor, with the approval of the board of directors. The corporation must allow a commission, not exceeding five per cent per annum, on all such guarantee notes while out- standing, and also interest on all moneys paid on such notes by the parties liable thereon, at the rate of twelve per cent per annum, payable half-yearly until repaid by the corporation, unless the current rate of interest is different from this amount, in which case the rate payable may, from time to time, at intervals of not less than one year, be increased or reduced by the board of directors, so as to conform to the current rate. [Amendment approved 1874; Code Amdts. 1873-74, p. 210.] Legislation § 441. 1. Enacted March 21. 1872 (based on Stats. 1865- 66, p. 756, §10), and then read: "Until the guarantee fund is dis- 183 MUTUAL LIFE, HEALTH AND ACCIDENT INSURANCE. § 445 charged from its obligations, as provided in the preceding section, no note must be withdrawn from the fund, unless another note of equal solvency is substituted therefor, with the unanimous approval of the board of directors then in office, and of all other parties liable on the rest of the notes comprising the guarantee fund. The corporation must allow a commission of five per cent per annum on all such guarantee notes while outstanding, and also interest on all moneys paid on such notes by the parties lialale thereon, at the rate of twelve per cent per annum, payable half-yearly until repaid by the corporation. But such rate of interest 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 conform to the then current rates of interest." 2, Amended by Code Amdts. 1875-74, p. 210. § 442. Insured to be entitled to vote, when. After the fil- ing of the declaration of the fixed capital, as in this article provided, the holders of policies of life insurance for the term of life, on which the premiums are not in default, may vote at the election of directors, and have one vote for each one thou- sand dollars insured by their policies, respectively. Legislation § 442. Enacted March 21, 1872; based on Stats. 1865-66, p. 754, § 5. § 443. Number of directors may be altered, how. The num- ber of directors specified in the articles of incorporation may be altered from time to time during the existence of the cor- poration by resolution, at the annual meeting of a majority of those entitled to vote at the election of directors, but the num- ber must never be reduced below five. Legislation § 443. Enacted March 21, 1872; based on Stats. 1865-66, p. 754, § 5. § 444. Investment of capital stock. [Repealed 1907 ; Stats. 1907, p. 889.] Legislation § 444. 1. Enacted March 21, 1872; based on Stats. 1867- 68, p. 661; Stats. 1865-66, p. 748, § 18. 2. Amended by Code Amdts. 1873-74, p. 211. 3. Repeal by Stats. 1901, p. 357; unconstitutional. See note, § 4, ante. 4. Repealed by Stats. 1907, p. 889. § 445. Limitations to the holding- of stock, and in other par- ticulars, may be provided for in by-laws. The corporation may, by its by-laws, limit the number of shares which may be held by any one person, and make such other provisions for the protection of the stockholders and the better security of those dealing with it as to a majority of the stockholders may seem proper, not inconsistent with the provisions of this title or part. Legislation § 445. Enacted March 21, 1872; based on Stats. 1865-66, p. 754, § 7. § 450 CIVIL CODE. 184 § 446. Premiums, how payable. All premiums must be pay- able wholly in cash, or one half or a greater proportion in cash, and the remainder in promissory notes bearing interest, as may be provided for by the by-laws. Agreements and policies of insurance made by the corporation may be upon the basis of full or partial participation in the profits, or without any par- ticipation therein, as may be provided by the by-laws and agreed betAveen the parties. Legislation § 446. Enacted March 21, 1872; based on Stats. 1865-66, p. 758, § 16. § 447. Insurance corporations to furnish data to insurance commissioner. Employment of actuary. [Repealed 1907 ; Stats. 1907, p. 141.] Legislation § 447. 1. Enacted March 21, 1872. 2. Amended hv Code Amdts. 1873-74, p. 211. ■ 3. Amended by Stats. 1889, p. 35. 4. Amendment by Stats. 1901, p. 357; unconstitutional. See note, § 4, ante. 5. Eepealed by Stats. 1907, p. 141. § 448. No stamp required on accident insurance contract. [Repealed 1907; Stats. 1907, p. 141.] Legislation § 448. 1. Enacted March 21, 1872. 2. Bepeal by Stats. 1901, p. 358; unconstitutional. See note, § 4, ante. 3. Eepealed by Stats. 1905, p. 571; the code commissioner saying, "This section exempts accident insurance companies from stamp duties, but as there are no such duties under the law as it now stands, the section is unnecessary." 4. Repealed by Stats. 1907, p. 141; the code commissioner repeating the language of his note to the repeal of 1905, and adding, at the end, "and is, therefore, repealed." § 449. Valuation of policies, retaliatory provisions. [Re- pealed 1907; Stats. 1907, p. 141.] Legislation § 449. 1. Added by Code Amdts. 1873-74, p. 270. 2. Amendment by Stats. 1901, p. 358; unconstitutional. See note, § 4, ante. 3. Repealed by Stats. 1907, p. 141. § 450. Provisions of life insurance policies issued in this state. Every contract or policy of life insurance hereinafter made by any person or corporation, with and upon the life of a resident of this state, and delivered within this state, shall provide, in event of default of any premium payment after three full annual premiums shall have been paid on such pol- icy, that without any action on the part of the insured, the net value of such policy based upon the reserve basis used in computing the premiums and values thereunder (the policy to specify the mortality table and rate of interest so adopted) which net value shall be at least equal to its entire net reserve 185 MUTUAL LIFE, HEALTH AND ACCIDENT INSURANCE. § 450 at. the date of default, including that of dividend additions, if any, based upon a standard not lower than the American expe- rience tables of mortality with interest at three and one half per cent yearly, less a surrender charge of not more than two and one half per cent of the face amount of the policy and of any existing dividend additions thereto and less any indebted- ness to the company on or secured by the policy, shall be applied as a single premium to the purchase of one of the fol- lowing stipulated forms of insurance : First — Paid-up nonparticipating term insurance in the amount of the face of the policy, plus dividend additions, if any, for such a period as the net value outlined above will pur- chase at the net single premium, at the attained age of the insured at the time of the lapse, based upon the reserve basis described in the policy ; provided, however, that under endow- ment contracts the term shall not extend beyond the endow- ment period named in the original contract, and the excess value, if any, shall be applied as a net single premium to pur- chase in the same manner paid-up pure endowment insurance, payable at the end of the endowment period named in the con- tract if the insured be then living, or, Second — Paid-up nonparticipating term insurance in the amount of the face of the policy, plus dividend additions, if any, and less any outstanding indebtedness, for such a period as the net value outlined above will purchase at the net single premium, .at the attained age of the insured, based upon the reserve basis described in the policy, provided, however, that under endowment contracts the term shall not extend beyond the endowment period named in the original contract, and the excess value, if any, shall be applied as a net single premium to purchase in the same manner paid-up pure endowment in- surance, payable at the end of the endowment period named in the contract if the insured be then living, or, Third — Paid-up nonparticipating insurance payable at the time and on the conditions named in the policy for such an amount as the net value outlined above will purchase at the net single premium, at the attained age of the insured, based upon the reserve basis described in the policy. Provided, however, that the policy may be surrendered to the company, at its home office, upon due application by the legal owner thereof, within one month after date of premium default, for a specified cash value which shall be at least equal to the sum which would be otherwise available for the pur- chase of the automatic form of insurance provided therein ; and provided, further, that the company may defer payment of such cash value for not more than six months after applica- tion therefor is made. § 450 CIVIL CODE. 186 No agreement between the company and the policy-holder or applicant for insurance contrary to the foregoing shall be held to waive any of the provisions provided above. Any life insurance policy issued upon the life of a resident of this state, and delivered within this state, which does not contain an automatic nonforfeiture value in conformity with the foregoing shall be construed as granting nonparticipating term insurance, as provided in paragraph first of this section, and such a benefit shall be read into the contract. The provisions of this section shall not apply to annuities, in- dustrial policies or to term contracts issued for periods of twenty years or less. [Amendment approved 1911 ; Stats. 1911, p. 1272.] Legislation § 450. 1. Added by Code Amdts. 1873-74, p. 271, and then read: "Every policy of insurance upon life issued hereafter within the limits of the state of California, whether by a person or corpora- tion, organized under the laws of this state, or under those of any other state or country^ or by the agent of such person or corporation, must contain written evidence that it was issued in this state. And any such policy issued in this state, which shall not contain such writ- ten evidence, is, at the option of the holder, null and void. And the person or corporation issuing such policy, without the evidence herein- before required, shall forfeit to the people of the state of California, for each and every policy so issued, the sum of one hundred dollars in United States gold coin, to be collected by the insurance commissioner as provided by section five hundred and ninety-eight of the Political Code." 2. Amended by Code Amdts. 1877-78, p. 82, (1) changing the intro- ductory words of the section to read, "Every policy of insurance upon life hereafter issued and delivered within the limits," the remainder of the first sentence remaining unchanged, (2) omitting the second sentence, and (3) joining the final sentence to the end of the first, and as a part thereof, and changing it to read, "and the person or corporation, and the agent thereof, issuing and delivering such policy, without the evidence hereinbefore required, shall forfeit to the people of the state of California the sum of one hundred dollars for cash[each] and every policy so issued, to be recovered by the insurance commis- sioner by suit, in the name of the people of the state of California, in any court of competent jurisdiction." 3. Amended by Code Amdts. 1880, Pol. Code div., p. 91, to read: "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 countrj', with and upon the life of a resident of this state, and delivered within this state, shall contain, unless spe- cifically contracted between the insurer and the insured for tontine insurance, 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 reserve, by the American ex- perience mortality, and interest at four and one half per cent yearly, less any indebtedness to the company on such policy, shall be applied by such company as a single premium, at such company's published rates in force at the date of original policy, but at the age of the insured at time of lapse, either to the purchase of non-participating 187 MUTUAL LIFE, HEALTH AND ACCIDENT INSURANCE. § 452 term insurance for the full amount insured by such policy, or upon the written application by the owner of such policy, and the surrender thereof to such company within three months from such non-payment of premium, to the purchase of a non-participating paid-up policy, pay- able at the time the original policy would be payable if continued in force; both kinds of insurance to be subject to the same conditions, except as to payment of premiums, as those of the original policy. It may be provided, however, in such stipulation, that no part of such term insurance shall be due or payable, unless satisfactory proofs of death be furnished to the insuring company within one year after death, and that, if death shall occur within three years after sucb non- payment of premium, and during such term of insurance, there shall be deducted from the amount payable the sum of all the premiums that would have become due on the original policy if it had continued in force. If the reserve on endowment policies be more than enough to purchase temporary insurance, as aforesaid, to the end of the en- dowment term, the excess shall be applied to the purchase of pure endowment insurance, payable at the end of the term, if the insured be then living. If any life insurance corporation or company shall deliver to any person in this state a policy of insurance upon the life of any person residing in this state, not in conformity with the pro- visions 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 commissioner shall immediately revoke the certificate of such corporation 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." 4. Amendment by Stats. 1901, p. 358; unconstitutional. See note, § 4, ante. 5. Amended by Stats. 1911, p. 1272. § 451. Fraternal societies exempt from insurance laws. [Repealed 1907; Stats. 1907, p. 141.] Legislation § 451. 1. Added by Code Amdts. 1873-74, p. 271, relat- ing to cancellation and payment of insurance policies of persons or corporations. 2. Amended by Code Amdts. 1877-78, p. 82. 3. Eepealed by Code Amdts. 1880, Pol. Code div., p. 92. 4. Added by Stats. 1885, p. 221, declaring that secret societies and fraternal organizations are not insurance companies. 5. Repealed by Stats. 1907, p. 141. § 452. Dividends, how made. No corporation formed under the laAvs of this state, and transacting life insurance business, must make any dividends, except from profits remaining on hand after retaining unimpaired : 1. The entire capital stock; 2. A sum sufficient to pay all losses reported or in course of settlement, and all liabilities for expenses and taxes ; 3. A sum sufficient to re-insure all outstanding policies, as ascertained and determined upon the basis of the American experience table of mortality, and interest at the rate of four and one half per cent per annum. § 452a CIVIL CODE. 188 Legislation § 452. 1. Addition by Stats. 1901, p. 359; unconstitu- tional. See note, § 4, ante. 2. Added by Stats. 1905, p. 571, in the identical language of the un- constitutional amendment of 1901. See ante, Legislation § 431, for code commissioner's note to §§ 431, 452. Another § 452 was added by Code Amdts. 1877-78, p. 83, and pro- vided for the determination of the net value of the policy at the expiration of the term, and was repealed by Code Amdts. 1880, Pol. Code div., p. 92. CHAPTER IV. Mutual Benefit and Life Associations. § 452a. Formation of mutual benefit associations. § 453. Levying of assessments. By-laws which may be made. Legislation Chapter IV. Added by Stats. 1905, p. 411, and then con- tained §§ 452a, 453; the code commissioner saying, "The statute of 1873-74, p. 745, as amended by the statutes of 1880, p. 25, and 1901, p. 6, relating to mutual benefit associations, is codified in the' above sections, and a new chapter, entitled 'Mutual Benefit and Life Associa- tions, is added, to consist of sections 452a and 453." § 452a. Formation of mutual benefit associations. Asso- ciations of any number of persons may be formed for the pur- pose of paying the nominee of any member a sum, upon the death of the member, not exceeding three dollars for each member of the association, but not exceeding, in any ease, the sum of three thousand dollars. Such association may be formed by filing articles of incorporation in the office of the clerk of the county in which the principal place of business is situated and a certified copy of such articles of incorporation, duly certified by the county clerk, in the office of the secretary of state. Such articles must state the name of the corpora- tion, its general purposes, its principal place of business, its term of existence, not exceeding fifty years and the names and residences of the directors selected or appointed to serve for the first year. The articles of incorporation must be signed by not less than twenty-five members of such association and must be acknowledged by them as required by section 292. [Amendment approved 1913; Stats. 1913, p. 12.] Legislation § 452a. 1. Addition by Stats. 1901, p. 360; unconstitu- tional. See note, § 4, ante. 2. Added by Stats. 1905, p. 411, to read: "Associations of not ex- ceeding one thousand persons may be formed for the purpose of pay- ing to the nominee of any member a sum, upon the death of the member, not exceeding three dollars for each member of the associa- tion. Such association may be formed by filing articles of incorpora- tion in the office of the clerk of the county in which the principal place of business is situated and a certified copy of such articles of incorporation, duly certified by the county clerk, in the office of the secretary of state. Such articles must state the name of the corpora- tion, its general purposes, its principal place of business, its term of 189 CORPORATIONS TO DISCOVER FIRE^ ETC. § 453a existence, not exceeding fifty years, the names and residences of the directors selected or appointed to serve for the first year, and must be signed and verified as required by sections two hundred and ninety- two and five hundred and ninety-four." 3. Amendment by Stats. 1913, p. 12. See ante, Legislation Chapter IV, for code commissioner's note. § 453. Levying: of assessments. By-laws which may be made. Each association provided for in this chapter may, on the death of a member, levy an assessment on the surviving members of not exceeding three dollars for each member, and collect and pay the same to the nominee of such decedent, and may also provide for the payment of such annual payments by members as may be deemed just, but no member must be sub- ject to any annual assessment in excess of that established when he joined the association. The association may make such by-laws not inconsistent with the laws of the state as may be necessary for its government and the transaction of its busi- ness ; may, by its name, sue and be sued ; loan such funds as it may have on hand ; and own sufficient real estate for its busi- ness purposes and such as it may be necessary to purchase on foreclosure of its mortgages. Legislation § 453. 1. Addition by Stats. 1901, p. 360; unconstitu- tional. See note, § 4, ante. 2. Added by Stats. 1905, p. 411. See ante, Legislation Chapter IV, for code commissioner's note. CHAPTER V. Corporations to Discover Fire and Save Property and Human Life from Destruction Thereby. § 453a. Powers of the corporation. § 453b. Right of way of corporation and its officers when running to fires* § 453c. Yearly meeting of corporation, notice to be given thereof, and proceedings which may be authorized thereat. Legislation Chapter V. Added by Stats. 1905, p. 571, and then con- tained the present §§ 453a-453c; the code commissioner saying, "The statute of 1875-76, p. 689, concerning the powers of underwriters, as amended by the statute of 1897, p. 223, is codified in the sections above named, a new chapter being added, entitled 'Corporations to Discover Fire, and to Save Property and Human Life from Destruction Thereby,' to consist of §§ 453a, 453b, and 453c." §453a. Powers of the corporation. Any corporation of underwriters heretofore organized and now existing, or which may be hereafter organized under the laws of this state, for the purpose of discovering and preventing fires and of saving property and human life from conflagration, and doing busi- ness within any municipal corporation of this state, has power, at its own proper cost and expense, to maintain a corps of men, with proper oflEicers, equipped with the necessary machinery § 453b CIVIL CODE. 190 and apparatus therefor, whose duty it is, so far as practicable, to discover and prevent fires and save property and human life from conflagration; and for the effective discharge of such duties, authority is hereby granted such corps to enter any building on fire, or in which property is on fire, or which such corps or any officer thereof deems to be immediately exposed to any existing fire, or in danger of taking fire from a burning building, and to remove or otherwise save and protect from conflagration or damage by water any property, during and immediately after such fire. Nothing in this chapter must be so construed as in any degree to lessen, impair, or interfere with the powers, privileges, duties, or authority of the regular fire department of such municipality ; nor can any act of such corps justify any owner of any building or property in aban- doning such building or property. Legislation § 453a. 1. Addition by Stats. 1901, p. 360; unconstitu- tional. See note, § 4, ante. 2. Added by Stats. 1905, p. 571. See ante, Legislation Chapter V, for code commissioner's note. § 453b. Right of way of corporation and its officers when running to fires. Such corporation, with its officers and corps, Avhen running to a fire with its horses, vehicles, and salvage apparatus, has the same right of way as is or may be bestowed by any ordinance of the municipality or law of this state upon the regular fire department of the municipality wherein such corporation is acting ; but the rights of such fire department must always be paramount to the rights of such corporation. All ordinances now existing or which may hereafter be passed by the municipal authorities of any city and county, or of any incorporated city or town wherein such a corporation may carry on business, and all laws of this state applicable to such city and county, or city or town, for the conviction or punish- ment of any person or persons willfully or carelessly obstruct- ing the progress of the apparatus of the fire department of such city and county, or city or toAvn, while going to a fire, or of any person or persons willfully or carelessly injuring any animal or property of said fire department, are equally ap- plicable to any person or persons willfully or carelessly ob- structing the progress of the apparatus of such corporation while going to a fire, and to any person or persons who will- fully or carelessly injures any animal or property of such cor- poration ; and said laws and ordinances, and their penalties, may be enforced in the same courts and in the same manner, and with equal force and effect, as in the case of the fire department. Legislation § 453b. 1. Addition by Stats. 1901, p. 361; unconstitu- tional. See note, § 4, ante. 191 CORPORATIONS TO DISCOVER FIRE, ETC. § 453c 2. Added by Stats. 1905, p. 572. See ante, Legislation Chapter V, for code commissioner's note. § 453c. Yearly meeting of corporation, notice to be given thereof, and proceedings which may be authorized thereat. In the month of July, in every year, there must be held a meeting of all corporations created for the purposes specified in this chapter; of Avhich ten days' previous notice must be inserted in at least one daily newspaper published in the municipality where said corporation is organized or established, at which meeting each insurance company, corporation, association, un- derwriter, agent, person, or persons doing a fire insurance busi- ness in said municipality, whether members of said corpora- tion or not, shall have a right to be represented, and shall be entitled to one vote. A majority of the whole number so rep- resented has poAver to decide upon the question of sustaining the fire patrol organized by corporations heretofore created, or that may be hereafter created, and fixing the maximum amount of expenses which may be incurred therefor during the fiscal year next to ensue, which amount must in no case exceed tAvo per centum of the aggregate premiums returned as received, as provided in this section, and the whole of such amount, or so much thereof as may be necessary, may be as- sessed upon all insurance companies, corporations, associations, underwriters, agents, person, or persons who assume risks and accept premiums for fire insurance in said municipality, as hereinbefore mentioned, in proportion to the several amounts of premiums returned, as received by each, as hereinafter pro- vided, and such assessment is collectible by and in the name of said corporation, in any court of laAv in the state of Califor- nia having jurisdiction, in such manner and at such time or times as said corporation may determine. In order to provide for the payment of persons employed by said corporation, and to maintain suitable rooms, and apparatus for saving life and property contemplated, said corporation is empowered to re- quire a statement to be furnished, semi-annually, by all insur- ance companies, corporations, associations, underwriters, agents, or persons, of the aggregate amount of premiums re- ceived for insuring property in the municipality Avhere said corporation is organized or established, for and during the six months next preceding the first day of July and the first day of January of each year, which statement must be SAvorn to by the president or secretary of the corporation or association, or by the agent or person so acting or effecting such insurance in said municipality, and must be handed to the secretary of said corporation heretofore created or hereafter to be created, under the provisions of this chapter within ten days after the first day § 453c CIVIL CODE. 192 of July and the first day of January of each year. Said sec- retary mnst, within the ten days aforesaid, by written or printed demand signed by him, require from every insurance company, corporation, association, underwriter,- agent, or person engaged in the business of fise insurance in the municipality where said corporation is organized or established, the statement hereinbe- fore provided for. Such demand may be delivered personally at the office of such insurance company, corporation, association, underwriter, agent, or person within said municipality, and every officer of such insurance company, corporation, associa- tion, and every such underwriter, agent, or person, who, for fifteen days after said demand, neglects to render the statement herein provided for, forfeits fifty dollars for the use of said corporation, and also forfeits for its use twenty-five dollars in addition for every day he so neglects after the expiration of the said fifteen days, and such additional penalty may be com- puted and collected up to the time of the trial of any action brought for the recovery thereof. The penalty herein pro- vided for may be sued for and collected, with costs, in any court of law within the state of California having .jurisdiction, by and in the name of said corporation. Legislation § 453c. 1. Addition by Stats. 1901, p. 361; unconstitu- tional. >See note, § 4, ante. 2. Added by Stats. 1905, p. 572. See ante, Legislation Chapter V, for code commissioner's note. CHAPTER "YI. Life, Health, Accident, and Annuity or Endowment Insurance on the Assessment Plan. § 453d. Contracts which may be made by, defined. § 453e. Formation of corporations; issuing of contracts; investments. § 453f. Pre-existing corporations, right of to reincorporate. § 453g. Contracts of insurance, contents and effect of. § 453h. "Reserve and emergency fund. § 4531. Foreign corporations, conditions precedent to doing business in this state. § 453.i. Limitations upon right to issue contracts of insurance. § 453k. Exemptions from attachment and execution. § 4531. Statements to be filed with the insurance commissioner; proceed- ings to be taken by him thereon. § 453m. Lapsing of policies when forbidden. § 453n. Fees and penalties. § 453o. Insurance commissioner to present bills for certain expenses. § 453p. Exemption of fraternal societies from this chapter. Legislation Chapter VI. Added by Stats. 1905, p. 418, and then con- tained the present §§ 453d-453p; the code commissioner saying, "The above sections are a codification of the statute of 1891, p. 126, relat- ing to life, health, accident, and annuity or endowment insurance on the assessment plan. They are placed in a new chapter, entitled 'Lif<\ Health, Accident and Annuity or Endowment Insurance on the Assess- ment Plan.' " 453e. Formation of Corporations; Issuing of Contracts; In- vestments. Corporations may be formed to carry on the business of mutual insurance upon the assessment plan, and are subject only to the provisions of this chapter. No such corporation [may! issue contracts of insurance until at least [five hundred] persons have applied, in writing, [to the insurance commissioner,] for membership or insurance therein, and have paid to the treas- urer of such corporation the sum of [twenty-five thousand] dol- lars. This sum must be invested in bonds or securities, approved by the insurance commissioner of this state, or deposited in some bank in this state where it will earn interest. Said bonds or securities, or evidence of such deposit, must be placed, through the insurance commissioner of this state, with the state treasurer, and the principal sum must be held in trust for the contract hold- ers of such corporation, with the right in the corporation to ex- change said bonds, securities, or evidence of bank deposit for others of like value. Such corporation must also, as a condition precedent to issuing any contracts of insurance, obtain the written certificate of the insurance commissioner that it has complied with the requirements of this chapter; and that the name of the cor- poration is not the same as that of any other corporation of this or other states, as indicated by the insurance department reports in his office; nor must the commissioner approve any name or title so closely resembling another as to mislead the public. No cor- poration formed hereunder has legal existence after one year from the date of its article.?, unless its organization has been completed and business commenced; nor [shall] any corporation or indi- vidual solicit, or cause to be solicited, any business, until such corporation has complied with the provisions of section six hundred thirty-three of the Political Code. Nothing contained in this chapter shall be construed to exempt any corporation from the provisions of sections two hundred ninety-six and two hundred ninety-nine of this code. (In effect 90 days from and after April 27, 1917. Stats. 1917, Chap. 612.) Civ. Code, 1917. 193 LIFE, HEALTH, ETC., INSURANCE ON ASSESSMENT PLAN. § 453e § 453d. Contracts which may be made by, defined. Every contract whereby a benefit may accrue to a party or parties therein named upon the death or physical disability of a per- son insured thereunder, or for the payment of any sums of money dependent in any degree upon the collection of assess- ments or dues from persons holding similar contracts, is deemed a contract of mutual insurance upon the assessment plan. Such contracts must show that the liabilities of the insured thereunder are not limited to fixed premiums. Legislation § 453d. 1. Addition by Stats. 1901, p. 362; unconstitu- tional. See note, § 4, ante. 2. Added by Stats. 1905, p. 418. See ante, Legislation Chapter VI, for code commissioner's note. § 453e. Formation of corporations ; issuing- of contracts ; in- vestments. Corporations may be formed to carry on the busi- ness of mutual insurance upon the a.ssossment plan, and are subject only to the provisions of this chapter. No such cor- poration must issue contracts of insurance until at least two hundred persons have applied, in writing, for membership or insurance therein, and have paid to the treasurer of such cor- poration the sum of five thousand dollars. This sum must be invested in bonds or securities, approved by the insurance com- missioner of this state, or deposited in some bank in this state where it will earn interest. Said bonds or securities, or evi- dences of such deposit, must be placed, through the insurance commissioner of this state, with the state treasurer, and the principal sum must be held in trust for the contract-holders of such corporation, Math the right in the corporation to exchange said bonds, securities, or evidence of bank deposit for others of like value. Such corporation must also, as a condition precedent to issuing any contracts of insurance, obtain the written certificate of the insurance commissioner that it has complied with the requirements of this chapter; and that the name of the corporation is not the same as that of any other corporation of this or other states, as indicated by the insur- ance department reports in his office ; nor must the commis- sioner approve any name or title so closely resembling another as to mislead the public. No corporation formed hereunder has legal existence after one year from the date of its articles, unless its organization has been completed and business com- menced; nor must any corporation or individual solicit, or cause to be solicited, any business, until such corporation has complied with the provisions of section six hundred and thirty- three of the Political Code. Nothing contained in this chapter , shall be construed to exempt any corporation from the provi- Cir. Code — 13 § 453h CIVIL CODE. 194 sions of sections two hundred and ninety-six and tAvo hundred and ninety-nine of this code. Legislation § 4536. 1. Addition by Stats. 1901, p. 363; unconstitu- tional. See note, § 4, ante. 2, Added by Stats. 1905, p. 418. See ante, Legislation Chapter VI, for code commissioner's note. § 453f. Pre-existing- corporations, right of to reincorporate. Any existing corporation engaged in the business of life, health, accident, or endowment insurance on the assessment plan may reincorporate under the provisions of this code and chapter, but is not obliged to do so, and may, without such reincorporation, exercise the rights, powers, and privileges con- ferred by this chapter. Legislation § 453f. 1. Addition by Stats. 1901, p. 363; unconstitu- tional. See note, § 4, ante. 2. Added by Stats. 1905, p. 419. See ante, Legislation Chapter VI, for code commissioner's note. . § 453g*. Contracts of insurance, contents and effect of. Every contract of insurance issued by such corporation must specify the sum or sums to be paid upon the happening of the contingency insured against, and when such payments must be made. Unless the contract is invalidated by fraud or by breach of its conditions, the corporation is obligated to pay the beneficiary the amount or amounts specified in its contract at the time or times therein named, and such indebtedness is a lien upon all the property of such corporation, with priority over all indebtedness thereafter incurred, except as herein- after provided in case of insolvency. Failure to make such payment, within thirty days after notice, at the home office, by mail, as provided by laAv, of a final judgment, unless waiver is made by the beneficiary, constitutes a forfeiture of the right to do business. Legislation § 453g. 1. Addition by Stats. 1901, p. 363; unconstitu- tional. See note, § 4, ante. 2. Added by Stats. 1905, p. 419. See ante, Legislation Chapter VI, for code commissioner's note. § 453h. Reserve and emergency fund. Every domestic cor- poration, organized to do or doing the business of insurance on the assessment plan, must accumulate a reserve or emergency fund, which must, at all times, be not less than the largest benefit contracted to be paid by it to any one person. Every corporation organized under the provisions of this chapter must accumulate such fund within a year from the date of its certificate of incorporation. Such fund, to the extent of tfie largest amount contracted to be paid by any such corporation to any one person, must be invested and deposited, as provided 195 LIFE, HEALTH, ETC., INSURANCE ON ASSESSMENT PLAN, § 4531 in section four hundred and* fifty-three e, with the right in the corporation to exchange any such securities for others of equal value. The deposit required by section four hundred and fifty-three e constitutes a part of the reserve required by this section, at the option of such corporation. When any such corporation discontinues business, this fund must be re- turned to such corporation, or disposed of as may be deter- mined by the superior court of the county in which is its prin- cipal place of business. Legislation § 453h. 1. Addition by Stats. 1901, p. 364; unconstitu- tiona]. See note, § 4, ante. 2. Added bv Stats. 1905, p. 419. See ante, Legislation Chapter VI, for code commissioner's note. § 453i. Foreign corporations, conditions precedent to doing business in this state. Corporations organized under th^ laws of any other state or country to transact the business of mutual assessment insurance must, as a condition precedent to trans- acting business in this state, comply with the provisions of sec- tions four hundred and five and four hundred and eight of this code, and deposit with the insurance commissioner of this state a certified copy of its charter or other instrument re- quired by its home authorities ; a statement under oath, of its president or secretary, of its business for the preceding year, in such form as may be required by the insurance commissioner of this state ; an appointment of a general agent, service upon whom binds the corporation; a certificate that for the next preceding twelve months it has paid in full the maximum amount named in its contract of insurance ; a certificate from the proper officer of its state or government that like corpora- tions of this state are legally entitled to do business in such state or country ; copies of its contracts of insurance and ap- plications, which must show that the liabilities of its members are not limited to fixed premiums ; and evidence, satisfactory to the insurance commissioner, that the corporation has accu- mulated a fund equal to that required of like corporations in this state, constituting a reserve or surplus fund, held in trust for the benefit of its contract-holders, and so invested and held as required by the laws of the state or government under which such corporation was organized. The insurance commissioner must thereupon issue a license to such corporation to do busi- ness in this state. This license must be renewed annually, and may be revoked whenever it is ascertained that the statements required to be made by this section are not true. Upon such revocation, notice thereof must be given by the insurance com- missioner by publication in some newspaper published in the city and county of San Francisco, for two weeks, daily, and § 453k CIVIL CODE. 196 no new contracts must be made by 'such company in this state. When any other state or country imposes any additional li- cense, fees, taxes, or penalties upon any corporation organized or doing business under this chapter, like license, fees, taxes, or penalties are imposed upon corporations of the same kind and their agents of such state or country doing business in this state. Legislation § 4531. 1. Addition by Stats. 1901, p. 364; unconstitu- tional. See note, § 4, ante. 2. Added by Stats. 1905, p. 419. See ante, Legislation Chapter VI, for code commissioner's note. § 453 j. Limitations upon right to issue contracts of insur- ance. No corporation doing business under this chapter, ex- cept accident or casualty corporations, must issue a contract of insurance upon the life of any person under fifteen nor over sixty-one years of age. Every such contract of insurance must be founded upon Avritten application therefor, and, except where the application is for health, accident, or casualty insur- ance only, or for one hundred dollars life insurance or less, such application must be accompanied by the report of a repu- table physician, containing a detailed statement of his exami- nation of the applicant, showing the applicant to be in good health, and reeommendiug the issuance of a contract of insur- ance. Any solicitor, agent, employee, examining physician, or other person, making a false or fraudulent statement to any corporation doing business under this chapter, with reference to any application for insurance, or for the purpose of obtain- ing any money or benefit from such corporation, is guilty of a misdemeanor ; and any person who makes a false statement of any material fact or thing in a sworn statement as to the death or disability of a contract-holder, in any such corporation for the pui'iDOse of procuring or aiding the beneficiary or benefi- ciaries or contract-holder in procuring the payment of a benefit named in the contract, is guilty of perjury. Legislation § 453 j. 1. Addition by Stats. 1901, p. 365; unconstitu- tional. See note, § 4, ante. 2. Added by Stats. 1905, p. 420. See ante. Legislation Chapter YI, for code commissionei-'s note. § 453k. Exemptions from attachment and execution. The money, benefit, annuity, endowment, charitj^ relief, or aid to be paid as provided by the contracts issued by any corporation doing business under this chapter, is not lialjle to attachment or other process, nor to be seized, taken, appropriated, or ap- plied by any legal or equita]>le process, nor by operation of law, to pay any debts or liability of the contract-holder or any beneficiary named thereunder. 197 LIFE, HEALTH, ETC., INSURANCE ON ASSESSMENT PLAN, § 453m Legislation § 453k. 1. Addition by Stats. 1901, p. 365; unconstitu- tional. See note, § 4, ante. 2. Added by Stats. 1905, p. 421. See ante, Legislation C'liapter A'l, for code commissioner's note. § 453 1. Statements to be filed with the insurance commis- sioner; proceedings to be taken by him thereon. Every cor- poration, whether domestic or foreign, doing the business of effecting insurance on the assessment plan must, annually, on or before the first day of February, file with the insurance commissioner, in such form as he may prescribe, a statement of its affairs for the year ending on the preceding thirty-first day of December. The insurance commissioner, in person or by duly authorized deputy, has the power of examination into the affairs of a«y domestic corporation doing business or claim- ing to do business under this chapter, at any time, in his dis- cretion, and must make such examination at least once a year. If he, after an examination of the affairs of a corporation, finds that it is not doing its Intsiness in conformity to this chapter, or that it is doing a fraudulent or unlawful business, or that it is not carrying out its terms of contract, or that it cannot, within three months from the date of notice of default, pay its obligations, he must cite the president, secretary, manager, or general agent of the corporation, or all of them, to appear before him, stating the time and place, to show cause why the authority of the corporation to do business should not be revoked, and if cause is not shown, then he must report the facts to the attorney-general of the state, who must commence proceedings in the proper court to restrain the corporation from doing any further business. Legislation! 4531. 1. Addition by Stats. 1901, p. 365; unconstitu- tional. See note, § 4, ante. 2. Added by Stats. 1905, p. 421. See ante, Legislation Chapter VI, for code commissioner's note. § 453m. Lapsing- of policies when forbidden. No policy or certificate issued by any corporation or association doing busi- ness under the provisions of this chapter lapses for the non- payment of any assessments, dues, or premiums, unless the cor- poration or association has first mailed to the insured under such policy or certificate, at his or her last given post-office address, a notice setting forth the amount to be paid, and the time the same is due and payable; and such notice must be mailed at least fifteen days before the assessment is due ; pro- vided, that such corporations doing business under this chap- ter as collect specific amounts at specific dates, as contained in the contract, are not compelled to send such notices ; and an affidavit made by the officer, bookkeeper, or clerk of any such § 453p . CIVIL CODE. 198 corporation having charge of the mailing of notices, setting forth the facts as they appear on the records in the office of the said corporation, showing that such notice was mailed and the date of mailing, is conclusive evidence of the mailing of such notice. Legislation § 453m. 1. Addition by Stats. 1901, p. 366; unconstitu- tional. See note, § 4, ante. 2. Added by Stats. 1905, p. 421. See ante, Legislation Chapter VI, for code commissioner's note. § 453n. Fees and penalties. The fees for filing statements, certificates, or other documents required by this chapter, or for any service or act of the insurance commissioner, and the penalties for any violation of this chapter, must, except as otherwise provided herein, be the same as provided in the laws of this state relating to life insurance companies, and must be disposed of as provided by such laws. Legislation § 453n. 1. Addition by Stats. 1901, p. 366; unconstitu- tional. See note, § 4, ante. 2, Added by Stats. 1905, p. 422. See ante. Legislation Chapter VI, for code commissioner's note. § 453o. Insurance commissioner to present bills for certain expenses. For all lawful expenses under this chapter, or by reason of any of its provisions, in the prosecution of any suit or proceeding, or otherwise, for the enforcement of the provi- sions of this chapter, the insurance commissioner must present bills, duly certified by him, and accompanied with vouchers, to the state board of examiners, who may allow the same, and direct payment thereof to be made; and the state controller must draw warrants therefor on the state treasurer for the payment of the same to the insurance commissioner, out of the general fund, in addition to the ordinary contingent expense. Legislation § 453o. 1. Addition by Stats. 1901, p. 366; unconstitu- tional. See note, § 4, ante. 2. Added by Stats! 1905, p. 422. See ante, Legislation Chapter VI. for code commissioner's note. § 453p. Exemption of fraternal societies from this chapter. The provisions of this chapter do not apply to secret or fra- ternal societies, lodges, or councils, which conduct their busi- ness and secure membership on the lodge system exclusively, having ritualistic work and ceremonies in their societies, lodges, or councils, nor to any mutual or benefit association organized or formed and composed of members of any such society, lodge, or council exclusively. Legislation § 453p. 1. Addition by Stats. 1901, p. 367; unconstitu- tional. See note, § 4, ante. 2. Added by Stats. 1905, p. 422. See ante, Legislation Chapter VI, for code commissioner's note. See. 453s. Sec. 4o3t. See. 453u. Sec. 4.53v. Sec. 4o3w. See. 453x. See. 453y. 199 TITLE INSURANCE CORPORATIONS. § 453t CHAPTER VII. Title Insurance Corporations. Title insurance companies subject to insurance laws and to insurance commissioner. Title insurance company "guarantee fund." Interest and dividends. Mortgages. Plant investment. Title insurance .surplus fund. Policy of title insurance defined. Further powers of title insurance companies. Combined title insurance and trust company. Insurance commissioner's certificate necessary before issuing policy. Sec. 453z. Loans to directors, officers and employees. Legislation Chapter VII. Added by Stats. 1913, p. 490. § 453s. Title insurance companies subject to insurance laws and to insurance commissioner. Every title insurance com- pany shall be subject to and shall comply with all the require- ments of the insurance laws and the rules and regulations of the insurance department of this state, and the insurance com- missioner shall have the same power and authority regarding any such corporation that he may exercise in relation to other insurance corporations organized under the laws of this state, including the right to examine and inspect the financial condi- tion and affairs of such company relating to the insurance busi- ness of such company, and to compel compliance with the pro- visions of law governing any such corporation. Legislation § 453s. Added by Stats. 1913. p. 490. § 453t. Title insurance company "guarantee fund." In- terest and dividends. Mortgages. Plant investment. Every title insurance company, before issuing any guarantee or policy of insurance, shall deposit with the state treasurer, as herein provided, as a "guarantee fund" for the security and protection of the holders of, or beneficiaries under, such guar- antees or policies of insurance, one hundred thousand dollars. Any such deposit may be made either in lawful money of the United States or in any of the securities specified in subdivi- sions one, two, three, four and five of section four hundred twenty-one of this code. Said money or securities shall be first approved by the insurance commissioner, and upon his written order, deposited with the state treasurer for the pur- pose herein specified, and said treasurer shall give his receipt therefor, and thereafter, subject to the provisions of this chapter, shall hold such deposits of money or securities for the security and protection of the holders of, or beneficiaries under, any guarantee or policy of insurance issued by such company, and the state shall be responsible for the custody § 453t CIVIL CODE. 200 and safe return of any money or securities so deposited. Said securities or money so deposited may, Avith the approval of the insurance commissioner, be Avithdrawn or exchanged from time to time for other like securities, or lawful money, receivable as aforesaid. So long as the company so deposit- ing said money or securities shall continue solvent, it shall have the right and shall be permitted by the state treasurer to receive the interest and dividends on any securities so de- posited. Said securities and money shall be subject to sale and transfer, and to the disposal of the proceeds thereof by said state treasurer only on the order of a court of competent jurisdiction and for the securitj^ and protection of the holders of such guarantees and policies of insurance. When any part of the securities so deposited with the state treasurer consists of notes or bonds secured by mortgage or deed of trust, or in loans upon real property secured by mortgage or deed of trust, such mortgages or deeds of trust shall be accompanied by evi- dence of title issued by a person, company, or corporation designated or approved by the insurance commissioner and authorized by law or otherwise found by the insurance com- missioner to be competent to issue such evidence of title. Such evidence of title shall consist either of a full abstract of title, a full certificate of title, or a guarantee or policy of title in- surance, and such evidence of title shall be examined and approved by or under the direction of the insurance commis- sioner. The value of the property covered by each such mort- gage or deed of trust shall be appraised by one or more ap- praisers selected or approved by the insurance commissioner. The appraisers shall be residents of the county in which the property or some part thereof is situated. The reasonable cost of examining such evidence of title and of making such appraisement, shall be paid by the title insurance company making such deposit, and shall not exceed twenty dollars for examining the title to the property covered by each mort- gage or deed of trust, nor five dollars for each appraiser, not exceeding two, besides the necessary expenses of such ap- praisers; provided, that as to any part of the securities so deposited with the state treasurer which consists of notes or bonds s'ccured by mortgage or deed of trust, payment of which is guaranteed by a policy of mortgage insurance, or of mort- gage participation certificates, issued by a mortgage insur- ance company in accordance with the provisions of chapter VIII of title II of part IV of division first of the Civil Code, such evidence of title need not be required. Any such cor- poration organized under the laws of this state and having r. capit?! stock paid in, in cash, of more than one hundred thoi'snnd dollars, after depositing said guarantee fund as 201 TITLE INSURANCE CORPORATIONS. § 453t above provided, may invest an amount not exceeding fifty per cent of its subscribed capital stock in the preparation and purchase of materials or plant necessary to enable it to engage in such title insurance 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 cor- poration, or at such lesser value as may be estimated by such corporation in any such statement or proceeding, or omitted entirelv therefrom. [Amendment approved 1915 ; Stats. 1915, p. 1265.] Legislation § 453t. 1. Added by Stats. 1913, p. 490, and then read: "Every title insurance company, before issuing any guaranty or policy of insurance shall deposit as a 'guarantee fund' for the benefit of the holders of such guaranties and policies of insurance, the sum of one hundred thousand dollars in the securities mentioned in subdi- visions 1, 2, 3, 4 and 5 of section 421 of the Civil Code, in which the capital and accumulations of insurance companies are allowed by the laws of this state to be invested. Said securities shall be subject to the approval of the insurance commissioner, and shall be deposited with the treasurer of state, and said treasurer shall give his receipt therefor, and the state shall be responsible for their custody and safe return. Said securities so deposited may be exchanged from time to time, with the approval of the insurance commissioner, for other securi- ties receivable as aforesaid, and so long as the company so depositing said securities shall continue solvent, said company shall have the right and shall be permitted by the state treasurer to receive the interest and dividends on the securities so deposited. Said securities shall be subject to sale and transfer and to the disposal of the proceeds by said treasurer, only on the order of a court of competent jurisdiction, and for the benefit of the holders of svich guaranties and policies of insurance. "When any part of such deposit is made in bonds secured by mortgages or deeds of trust of real property, or in loans upon real property secured by mortgages or deeds of trust, such mortgages or deeds of trust shall be accompanied by evidence of title issued by a person, company, or corporation designated or approved by the insur- ance commissioner and authorized by law or otherwise found by the insurance commissioner to be competent to issue such evidence of title. Such evidence of title shall consist either of a full abstract of title, a full certificate of title, or a policy of title in.surance, and such evi- dence of title shall be exarilined and approved by or under the direc- tion of tlie insurance commissioner. The value of the property covered by each such mortgage or deed of trust, shall be appraised by one or more appraisers selected or approved by the insurance commissioner. The appraisers shall be residents of the county in which the property or some part thereof is situated. The reasonable cost of examining such evidence of title and of making such appraisement, shall be paid by the title insurance company making sucli deposit, and shall not exceed twenty dollars for examining the title to the property covered by each mortgage or deed of trust, nor five dollars for each appraiser, not exceeding two, besides the necessary expenses of such appraisers. Any such corporation organized under the laws of this state and hav- ing a capital stock paid in, in cash, of more than one hundred thou- sand dollars and after depositing said guarantee fund as above pro- vided, may invest an amount not exceeding fifty per cent of its § 453w CIVIL CODE. - 202 subscribed capital stock in the preparation and purchase of materials or plant necessary to enable it to engage in such title insurance busi- ness; and such materials or plant STiall be deemed an asset, valued at the actual cost thereof, in all statements and proceedings required by law for the ascertainment and determination of the condition of such corporation, or at such lesser value as may be estimated by such corpo- ration in any such statement or proceeding, or omitted entirely there- from." 2. Amended by Stats. 1915, p. 1265. § 453u. Title insurance surplus fund. Every title insur- ance company shall annually set apart a sum equal to ten per cent of its premiums collected during the year, which sums shall be allowed to accumulate until a fund shall have been created equal in amount to twenty-five per cent of the subscribed capital stock of such corporation. Such fund shall be maintained as a further security to holders of the guaranties and policies of insurance issued by such corporation, and shall be known as the "Title insurance surplus fund" ; and if at any time such fund shall be impaired by reason of a loss, the amount by which it may be impaired shall be restored in the manner hereinabove provided for its accumulation. The re- porting- of a loss shall he deemed an impairment of such fund for the purposes of this section. Such corporation must not make any dividends except from profits remaining on hand after retaining unimpaired : 1. The entire subscribed capital stock. 2. The amount set apart as a surplus fund under the provi- sions of this section. 3. A sum sufficient to pay all liabilities for expenses and taxes, and all losses reported or in course of settlement, with- out impairment of the title insurance svirplus fund required to be set apart as hereinabove provided. Legislation § 453u. Added by Stats. 1913, p. 491. § 453v. Policy of title insurance defined. Any written con- tract or instrument purporting to show the title to real prop- erty, or furnish information relative thereto, which shall in express terms purport to insure or guarantee such title or the correctness of such information, shall be deemed a policy of title insurance. Legislation § 453v. Added by Stats. 1913. p. 491. § 453w. Further powars of title insurance companies. Every title insurance company organized under the laws of this state shall also have power to guarantee or insure the identity, due execution, and validity of any note or bond secured by mortgage or trust deed, and the identity, due execution and validity and recording of any such mortgage or trust deed, and the identity, due execution and validity of bonds, notes or other 203 TITLE INSURANCE CORPORATIONS. § 453x evidence of indebtedness issned by this state, or by any county, city and county, city, school district, irrigation district or other municipality or district therein, or by any private or public corporation, and to act as registrar or transfer agent of this state, or of any county, city and county, city, school district, irrigation district, or other municipality or district therein, or of any private or public corporation, and to transfer or countersign any such bonds, notes, or other evidence of in- debtedness and to transfer or countersign certificates of stock of any private or public corporation. Legislation § 453w. Added by Stats. 1913, p. 491. § 453x. Combined title insurance and trust company. Any title insurance corporation incorporated under the general incorporation laws of this state, authorized by its articles of incorporation to act as executor, administrator, guardian, as- signee, receiver, depositary, agent or trustee, or to do a gen- eral trust business, and having a capital of not less than three hundred thousand dollars actually paid in, in cash, may also do business as a trust company, and maintain a trust depart- ment as well as a title insurance department, on compliance with the following conditions : 1. When such title insurance company desires to do such a departmental business, it shall first obtain the consent of both the superintendent of banks and of the insurance com- missioner, and in its application for such consent, must file a statement making a segregation of its capital and surplus for each such department. At least two hundred thousand dol- lars of its capital must be apportioned by such statement to its trust department. The respective portions of such capital and surplus, when such apportionment has been approved by the superintendent of banks and by the insurance commis- sioner, shall be considered and treated as the separate capital and surplus of each such department respectively, as if each such department was a separate business. 2. Such company, as to its title insurance department, shall be subject to and shall comply with all the requirements of the insurance laws and the rules and regulations of the in- surance department of this state, and may invest its capital apportioned to its title insurance department, and the ac- cumulations therefrom, in the securities in which the capital and accumulations of insurance companies are allowed by the laws of this state to be invested, including the materials and plant necessary to enable it to engage in the title insur- ance business, as provided in this chapter. 3. Such company, as to its trust department, shall be sub- ject to and shall comply with all the requirements of the bank- § 453z CIVIL CODE. 204 ing laws and the rules and regulations of the state banking department of this state, and may invest its capital appor- tioned to its trust department, and the accumulations there- from, and trust funds received by it, in accordance with the laws of this state relative to the investment of funds of trust companies. Legislation § 453x. Added by Stats. 1913, p. 492. § 453y. Insurance commissioner's certificate necessary be- fore issuing policy. No corporation shall make any contract or issue any policy of guarantee or insurance affecting titles to real estate, or engage in the business of a title insurance company, until it has obtained from the insurance commis- sioner his certificate that such company has complied with the provisions of this chapter and is duly authorized to do busi- ness as such title insurance company. [Amendment approved 1915; Stats. 1915, p. 1266.] , Legislation § 453y. 1. Added by Stats. 1913, p. 492, and then read: "No corporation shall make any contract or issue afly policy of guar- anty or insurance affecting titles to real estate, or engage in the busi- ness of a title insurance company, until it has obtained from the insurance commissioner his certificate that such company has complied with the provisions of this chapter and is duly authorized to do busi- ness as such title insurance company; provided, however, that any corporation heretofore organized under the laws of this state for the purpose of issuing policies of insurance affecting title to real estate, or for the purpose of carrj'ing on, and which is actually engaged in the business of title insurance, or of issuing policies of insurance affecting titles to real estate, shall be subject to and shall be entitled to all the rights and privileges of a title insurance company under the provisions of this chapter, by depositing with the state treasurer the guarantee fund required to be deposited by title insurance corporations; provided, such deposit is made at any time prior to the first day of January, A. D. 1914, and any such corporation heretofore organized shall have the right to continue to transact such business until said date; and provided, also, that the failure to deposit said guarantee fund prior to said date shall be deemed an abandonment of all such rights and privileges." 2. Amendment by Stats. 1915, p. 1266. § 453z. Loans to directors, officers and employees. No loan shall be made by any title insurance company, directly or in- directly, to any of its officers or directors or employees or to any member of the family of any officer or director. Any offi- cer, director, agent or employee of any such company who knowingly consents to any violation of the terms or provisions of this section shall be guilty of a misdemeanor. Legislation § 453z. Added by Stats. 1913, p. 493. 205 MORTGAGE INSURANCE COMPANIES. 453aa CHAPTER VIII. Mortgage Insurance. Sec. 453aa. Mortgage insurance companies subject to insurance laws and the authority of insurance commissioner. 453bb. Mortgage insurance company defined. The term "security" as used iu this chapter defined. Policy of mortgage insur- ance defined. Mortgage participation certificate defined. Entire mortgage guaranty' defined. 453ce. Eequisite capital stock of mortgage insurance company; cer- tificate of authority required. Kind and amount of securi- ties that may be guaranteed. Policies of mortgage insur- ance do not constitute "debts" or "indebtedness" of issuing company. Can not invest in, hold or own capital stock of another corporation, except as provided herein. 453dd. Must accumulate a surplus. Eestriction on making of divi- dends. 453ee. Investments permitted. 453ff. Mortgage participation certificates and guaranteed securities made legal investments for trust funds, insurance com- panies and others. 453gg. Quarterly reports to insurance commissioner. 453hh. Quarterly reports to insurance commissioner [repealed]. Legislation Chapter VIII. This chapter was added in 1913, Stats. 1913, p. 47S. It then consisted of §§ 453aa to § 453hh. The entire chapter was revised and amended <.o read as follows in 1915, Stats. 1915, p. 1538. §453aa. Mortgage insurance companies subject to insur- ance laws and the authority of insurance commissioner. Every mortgage insurance company shall be subject to and shall comply with all the requirements of the laws of this state made applicable to insurance companies generally and the rules and regulations of the insurance department of this state, excepting in so far as said laws, rules or regulations may be inconsistent with the other provisions in this chapter contained; and the insurance commissioner shall have the same power and authority over such company that he may exercise in relation to other insurance companies, including the right to examine and inspect the financial condition and affairs of such company relating to the business of such com- pany, and to compel compliance with the provisions of law governing any such company. [Amendment approved 1915; Stats. 191,5, p. 1539.] Legislation § 453aa. 1. Added by Stats. 1913, p. 479 and then read: "The insurance commissioner shall have the same power and authority regarding any mortgage insurance corporation that he may exercise in relation to other insurance corporations organized under the laws of this state, including the right to examine and inspect the financial condition and affairs of such company, and to compel compliance with the provisions of law governing any such corporation." 2. Amended by Stats. 1915, p. 1539. § 453bb CIVIL CODE. 206 § 453bb. Mortgage insurance company defined. The term "security" as used in this chapter defined. Policy of mortgage insurance defined. Mortgage participation certificate defined. Entire mortgage guaranty defined. The term "mortgage in- surance company" shall include every association, corporation, firm or person who shall engage as a business in making and issuing policies of mortgage insurance. The term "security" wherever used in this chapter, without a different meaning being specified or made apparent, shall be construed to refer to and include Avithin its meaning a note or notes, or bond or bonds, together with the mortgage or deed of trust securing the same which evidence a debt secured by a first lien on a marketable title in fee to real estate, or to real estate with improvements thereon. Any contract made and issued by a mortgage insurance company which purports to guarantee or insure against loss on, or to guarantee the payment of, within a specified time, the whole, or any part, of the principal, interest or other sums agreed to be paid under the terms of any security, or other sums secured under the terms of any security, shall be deemed, and is hereby designated, a "policy of mortgage insurance." A policy of mortgage insurance which evidences the owner- ship by the insured of an undivided or other partial share or interest, or the right to participate to a specified extent, in a security, or in a group consisting of several securities, and purports to guarantee the payment of such securities, or the payment of such undivided or other partial share or interest therein, or the amount of such participation, may be referred to as, and is hereby designated, a "mortgage participation certificate." A policy of mortgage insurance, other than a mortgage participation certificate, which covers and refers to the entire indebtedness evidenced by a security, may be referred to as, and is hereby designated, an "entire mortgage guaranty." [Amendment approved 1915; Stats. 1915, p. 1539.] Legislation § 453bb. 1. Added by Stats. 1913, p. 479, and then read: "A certiticate or guaranty issued by a mortgage insurance company organized under the laws of this state, whether such certificate repre- sents or refers to a particular note or bond secured by mortgage or trust deed in its entirety, or represents or refers to an un'divided or other partial interest in a note or notes or in a bond or bonds secured by mortgage or trust deed or in a group of several such notes or bonds and in the mortgages and trust deeds securing the same, which certiti- cate or guaranty purports to guarantee the payment of the principal, interest or other sums agreed to be paid under the terms of any such note or bond secured by mortgage or trust deed, or other sums secured under the terms of any such mortgage or trust deed and the guarantee- ing or insuring, directly or indirectlj^, against loss thereon, shall be deemed a policy of mortgage insurance. When such certificate or 207 MORTGAGE INSURANCE COMPANIES. § 453cc guaranty represents or refers to an undivided or other partial interest as above stated, the policy containing the same may be referred to as and is hereby designated as a 'mortgage participation certificate,' and when such certificate or guaranty rei^resents or refers to an entire in- terest as above stated, the policy containing the same may be referred to as and is hereby designated as a 'mortgage guaranty' or an 'entire mortgage guaranty.' " 2. Amended by Stats. 1915, p. 1539. § 453cc. Requisite capital stock of mortgage insurance com- pany; certificate of authority required. Kind and amount of securities that may be guaranteed. Policies of mortgage insur- ance do not constitute "debts" or "indebtedness" of issuing company. Can not invest in, hold or own capital stock of another corporation, except as provided herein. No mortgage insurance company shall engage in business, or issue any policy of mortgage insurance, within this state without having at least two hundred and fifty thousand dollars in capital stock fully paid in, in casli; nor until after having obtained from the in- surance commissioner his certificate that such company has complied with the laws of this state applicable thereto and is duly authorized to do business as a mortgage insurance com- pany. No mortgage insurance company shall guarantee the pay- ment of any security except the same be a first lien upon a marketable title in fee to the property covered thereby. No mortgage insurance company shall issue any policy of mort- gage insurance guaranteeing the payment of any portion of any security exceeding fifty per centum of the market value of the real estate with improvements covered by the same. No mortgage insurance company shall have at any time out- standing policies of mortgage insurance guaranteeing the pay- ment of securities the aggregate amount of the unpaid princi- pal of which exceeds tAventy times the amount of its paid up capital. The making and issuing of policies of mortgage in- surance under this act by mortgage insurance companies must not be construed to be the creation of debt within the meaning of the phrase "create any debts" in section three hundred nine of the Civil Code, nor of indebtedness within the meaning of the phrase "such capital stock cannot be diminished to an amount less than the indebtedness of the corporation" in section three hundred fifty-nine of the Civil Code, except that no mortgage insurance company shall reduce its capital stock to an amount less than is required by this act to be maintained by such mortgage insurance company, or less than the in- debtedness of such mortgage insurance company other than such policies of mortgage insurance. No mortgage insurance company shall invest in, hold or own any of the capital stock of any other corporation, or make any § 453dd CIVIL CODE. 208 loan, in whole or in part, on the security of capital stock of any other corporation; provided, that a mortgage insurance com- pany may take in its own name as pledgee, in connection with any loan conforming to the provisions of subdivision five of section four hundred fifty-three ee, stock in a water or power corporation in cases w^here such stock represents the right to receive or obtain water or power for the irrigation or cultiva- tion, or other beneficial use thereon, of the real estate covered by the loan, whether such right be appurtenant thereto or otherwise ; and if such loan be used as a part of a security or of a group of securities taken as the basis for the issue of mortgage participation certificates, may assign such stock to a trust company as a part of the security or securities required to be assigned by the terms of section four hundred fifty- three ff. Said company may also hold, use, transfer or dis- pose of any such stock for the benefit and protection of such loans. , No loan shall be made by any mortgage insurance company directly or indirectly to any of its officers or directors. A violation of any of the terms or provisions of this section shall not make any security or any policy of such company void or voidable, but any officer, director, agent or other em- ployee of any mortgage insurance company who knowingly consents to any violation of any of the terms or provisions of this section shall be guilty of a misdemeanor. [Amendment approved 1915; Stats. 1915, p. 1539.] Legislation § 453CC. 1. Added by Stats. 1913, p. 479, and then read: "No mortgage insurance company shall issue in California any policy of mortgage insurance without having a capital stock of at least one hundred thousand dollars fully paid in, in cash." 2. Amended by Stats. 1915, p. 1539. § 453dd. Must accumulate a surplus. Restriction on making- of dividends. Every mortgage insurance company shall annu- ally set apart a sum equal to ten per centum of its net earnings collected during the year, which sums shall be allowed to ac- cumulate until a fund shall have been created equal in amount to twenty-five per centum of the paid up capital stock of such company. Such fund shall be maintained as a further se- curity to the holders of policies of mortgage insurance issued by such company, and shall be known as the "surplus"; and if at any time such surplus shall be impaired by reason of a loss, the amount by which it may be impaired shall be re- stored in the manner hereinabove provided for its accumula- tion. All additions to said surplus, whether made in fulfill- ment of the requirements of this section or voluntarily by the company, shall be and remain subject to the provisions of this 209 MORTGAGE INSURANCE COMPANIES. § 453ee law. Such company must not make any dividends except from profits remaining on hand after retaining unimpaired: 1. The entire capital stock. 2. The amount set apart as a surplus under the provisions of this section. 3. A sum sufficient to pay all liabilities for expenses and taxes, and all losses reported or in course of settlement, with- out impairment of said surplus. [Amendment approved 1915 ; Stats. 1915, p. 1540.] Legislation § 453dd. 1. Added by Stats. 1913, p. 479, and then read: "No mortgage insurance company shall guarantee the payment of any note or bond secured by any mortgage or trust deed except the same be a first lien upon a marketable title in fee to the property covered thereby. No mortgage insurance company shall guarantee under any mortgage or trust deed a principal amount, exceeding sixty per centum of the market value of the real estate taken as security therefor. No mortgage insurance company shall have at any time outstanding poli- cies of mortgage insurance exceeding in amount of principal guaran- teed thereunder twenty times the amount of its paid-in capital and surplus; and provided, also, that certificates so issued, or guaranties so made or policies so issued by mortgage insurance companies organ- ized under the provisions of this act shall not be deemed to be debts created by the directors in violation of, or contrary to the provisions of section 309 of the Civil Code, nor make the directors or any of them liable thereon. No loan shall be made by any mortgage insurance company directly or indirectly to any of its officers or directors. A violation of any of the terms or provisions of this section shall not make any policy or guaranty of such company void or voidable, but any oflScer, director, agent or other employee of any such company who knowingly consents to any violation of any of the terms or provisions of this section shall be guilty of a misdemeanor." 2. Amended by Stats. 1915, p. 1540. § 453ee. Investments permitted. A mortgage insurance company may invest its capital, surplus, and accumulations in the purchase of, or loans upon, any of the obligations speci- fied in subdivisions one to six inclusive of this section: 1. Bonds or interest-bearing notes or obligations of the United States or those for which the faith and credit of the United States are pledged for the payment of principal and interest. 2. Bonds of this state or those for which the faith and credit of the state of California are pledged for the payment of principal and interest and bonds of any other state in the United States that has not, within five years next preceding such investment by such insurance company, defaulted in pay- ment of any part of either principal or interest due upon any legally authorized bond issue. 3. Bonds or interest-bearing notes or obligations issued under authority of law by any county, municipality or school district in this state or in any other state or territory of the Civ. Code — 14 § 453ee civil code. , 210 United States; provided, that said county, municipality or school district or the state or territory in which it is located has not, within five years next preceding such investment by such insurance company, defaulted in payment of any part of either principal or interest due upon any legally authorized bond issue. 4. Bonds of a permanent road division in this state, and any irrigation district bonds which the law may now or here- after authorize as legal investments for insurance companies ; provided, that the total amount of bonds issued by any such irrigation district does not exceed sixty per centum of the aggregate market value of the lands within such district, and of the water, water rights, canals, reservoirs, reservoir sites and irrigation works oAvned or to be acquired or constructed with the proceeds of any such bonds, by said district, such facts in reference to bonds of irrigation districts to be deter- mined by a commission now or hereafter authorized by law to ascertain and report upon such facts. 5. Notes or bonds secured by first mortgage or deed of trust or other first lien upon real estate, improved or unimproved; provided, that the principal so lent or the entire note or bond issue so secured shall not exceed fifty per centum of the mar- ket value of such real estate, or of such real estate with im- provements ; provided, also, in case said loan is made, or said note or bond issue created as or for a building loan on real estate, that at no time shall the principal so lent or the entire outstanding note or bond issue exceed fifty per centum of the market value of the real estate and the actual cost of the improvements thereon. 6. Securities guaranteed by a mortgage insurance company operating under the laws of the state of California, also mort- gage participation certificates issued by any such company in accordance Avith the provisions of this chapter, including securities guaranteed and mortgage participation certificates issued by the investing company. [Amendment approved 1915; Stats. 1915, p. 1541.] . ' Legislation § 453ee. 1. Added by Stats. 1913, p. 480, and then read: "Mortgages or trust deeds, guaranteed by any such mortgage insur- ance company, in compliance with the terms of this chapter, and the notes and bonds secured thereby, and mortgage participation certifi- cates, mortgage guaranties and entire mortgage guaranties, as defined by section 453bb, shall be legal investments for all trust funds held by any executor, administrator, guardian, trustee or other person holding trust funds for investment, and for the funds of insurance companies, banks, banking institutions and trust companies, and all premiums paid on such guaranties and certificates may be charged to or paid out of the income from such notes or bonds; provided, however, that if any such investment be in a mortgage participation certificate or certifi- cates, the mortgage or mortgages and deed or deeds of trust referred 2li MORTGAGE INSURANCE COMPANIES. § 453ff to in such certificates, together with the note or notes and bond or bonds secured by the same, shall be assigned to a trust company or- ganized and doing business under the laws of this state, and shall be held by such trust comi^any as security for the payment of said mort- gage participation certificates, including all of the mortgage participa- tion certificates secured by such mortgages and deeds of trust so as.- signed, and for the performance of all of the conditions of said mort- gage participation certificates imposed thereby upon the mortgage in- surance company issuing the same; and such trust company shall cer- tify on each such mortgage participation certificate, that the aggregate amount of the certificates issued, evidencing and conferring participa- tion in such mortgages and deeds of trust and in the notes and bonds secured thereby, does not exceed the principal of the debts evidenced and secured by such mortgages and deeds of trust; and provided, also, that such investment shall be accompanied by a copy of the appraise- ment and of the certificate of the directors filed or to be filed with the insurance commissioner as required by the provisions of this chapter." 2. Amended by Stats. 1915, p. 1541. § 453flF. Mortgage participation certificates and guaranteed securities made legal investments for trust funds, insurance companies and others. Mortgage participation certificates, also securities guaranteed by policies of mortgage insurance issued in conformity with the provisions of this chapter shall be legal investments for all trust funds held by any executor, administrator, guardian, trustee or other person holding trust funds, also for the funds of insurance companies, banks, banking institutions and trust companies, and shall be ac- cepted by the state of California, its officers and ol^cials, as securities comprising any part of any fund or deposit required by law to be made with the state of California, or any officer or official thereof, by any trust company or insurance com- pany doing business in the state of California, and all premiums required to be paid according to the terms of any such mortgage participation certificate, or other policy of mortgage insurance, may be charged to or paid out of the income from the note or notes or bond or bonds covered thereby; provided, that the foregoing provisions of this sec- tion, in so far as they refer to mortgage participation cer- tificates, shall apply only to such mortgage participation cer- tificates as evidence the ownership of shares or interests in, or participation in, securities which shall have been assigned to a trust company organized and doing business under the laws of and within this state and shall be held by such trust company for the common and equal benefit of the holders of all mortgage participation certificates issued or to be issued evidencing the ownership of shares or interests in, or partici- pation in, any particular security or group of securities so assigned and such trust, and the administration thereof, shall at all times be and hereby is expressly made subject to the inspection, supervision and control of the superintendent of § 453ff CIVIL CODE. 212 banks as fully and completely as if the same constituted a court trust under the provisions of the bank act; provided, also, that each such mortgage participation certificate must bear the certificate of such trust company to the effect that the aggregate amount of mortgage participation certificates then outstanding, including both the one being certified and all others based on the same security or group of securities, does not exceed the amount of the unpaid principal of the debt or debts evidenced by such particular security or group of securities ; provided, also, that each security so assigned shall be accompanied by a copy of the appraisement and of the certificate of the directors filed or to be filed with the insurance commissioner as required by the provisions of this chapter ; provided also, that a copy of each such appraise- ment and accompanying certificate of the directors shall be promptly, upon the assignment of each such security, trans- mitted to the superintendent of banks, and that each such copy of appraisement so transmitted shall bear an endorse- ment or certificate executed by the trust company to v^hich each such security is so assigned reciting and setting forth the amount of the unpaid principal named in the security which covers the property described in such appraisement; provided, also, that if any such mortgage participation certifi- cates, or securities guaranteed by policies of mortgage insur- ance issued in conformity with the provisions of this chapter, are used as securities comprising any part of any fund or deposit required by law to be made with the state treasurer by a trust company, the securities so guaranteed or the owner- ship of, or participation in, which is evidenced by such partici- pation certificates must constitute a first lien on improved and productive real estate in the state of California, such improved real estate being worth at least double the amount of such lien ; and also that the real estate and improvements which are covered by the lien of any security so guaranteed or the ownership of, or participation in, which is evidenced by mort- gage participation certificates which are so used shall be re- appraised at least once every two years and in the manner in this chapter provided for appraisements, and a copy of each such reappraisement shall be filed with the trust com- pany to which such security shall have been assigned and the original of each such reappraisement bearing the indorsement or certificate of such trust company as to the amount of the unpaid principal named in such security shall be filed with the superintendent of banks; provided, further, that the legality or validity of entire mortgage guaranties and mort- gage participation certificates heretofore issued Avhich fully conform to and comply with the law iu force at date of issu- 213 MORTGAGE INSURANCE COMPANIES. § 453gg ance shall not be affected or impaired by the provisions of this chapter and such eirtire mortgage guaranties and mortgage participation certificates shall continue to be legal invest- ments and recognized for all purposes to the extent and in the manner provided by the law in force at date of such issuance. A mortgage insurance company which issues mortgage participation certificates in accordance with the provisions of this section may at any time and from time to time substitute for any security or securities comprising or constituting a part or parts of a group of securities, the ownership of, or participation in, which is evidenced in w^hole or in part by any such participation certificates, other securities similarly guaranteed by it and withdraw from the trust company the security or securities for which such substitution shall be made ; provided, however, that at all times the amount of the unpaid principal of the debts evidenced by the particular group of securities held by such trust company and affected by any such substitution shall not be less than the aggregate amount of the participation certificates theretofore issued then outstanding and evidencing the ownership of undivided or other partial shares or interests,- or participation, in such group of securities ; and provided, further, that the right of substitution hereinbefore provided and the exercise thereof shall not alter or affect the status of such participation certifi- , cates as legal investments for trust funds, insurance com- panies, banks, banking institutions and trust companies as hereinbefore provided, or as securities acceptable by the state of California, its officers and officials, as comprising or consti- tuting any fund or deposit, or any part thereof, required by law to be made with the state of California, or any officer or official thereof, by any trust company or insurance company doing business in the state of California. [Amendment ap- proved 1915; Stats. 1915, p. 1542.] Legislation § 453ff. 1. Added by Stats. 1913, p. 480, and then read: "No corporation shall make any insurance contract or issue any policy of mortgage insurance, or engage in the business of a mortgage insur- ance company until it has obtained from the insurance commissioner his certificate that such company has complied with the provisions of this chapter and is duly authorized to do business as such mortgage insurance company; provided, that any corporation heretofore organ- ized under the laws of this state for the purpose of guaranteeing the payment of mortgages shall have the right to transact business as a mortgage insurance company until the first day of January, A. D. 1914; provided, also, that the failure of such company to obtain the certifi- cate of the insurance comiiiissiouer re(]uired by the terms of this act on or before said date shall terminate such right to transact such busi- ness until such certificate shall be obtained." 2. Amendment by Stats. 1915, p. L142. §453gg. Quarterly reports to insurance commissioner. Every mortgage insurance company shall make a report in § 453gg CIVIL CODE. 214 writing to the insurance commissioner, which report shall be made quarterly, and shall be verified b^ the oath of its presi- dent or vice-president, and its secretary or treasurer or of any two of its principal officers. Such report shall contain a statement of each new policy of mortgage insurance issued by such company since the last preceding report, stating specifically whether such policy constitutes an entire mort- gage guaranty or a mortgage participation certificate. "When such policy constitutes an entire mortgage guaranty, such report shall set forth separately the following facts regarding the security on which the policy is based, namely: 1. The aggregate amount of the unpaid principal indebted- ness evidenced by such security. 2. A description of the property covered by such security. 3. Separately, the market value of the land and the market value of the improvements thereon, if any, as shown by an appraisement as provided for by the terms of this section, also the aggregate value of such land and improvements. 4. The book and page of the record of the mortgage or deed of trust which is a part of such security. When such policy constitutes a mortgage participation cer- tificate such report shall set forth, directly or by reference to a previous report, separately the following facts-regarding the security or securities on which such participation certificate is based, namely : 1. The aggregate amount of unpaid principal indebtedness evidenced and secured by such security or securities, and, separately, the amount of the unpaid principal indebtedness evidenced and secured by each such security. 2. A description of the property covered by each such security. 3. Separately, the market value of the land and the market value of the improvements thereon, if any, as shown by an appraisement as provided for by the terms of this section, also the aggregate value of such land and improvements. 4. The book and page of the record of each mortgage and deed of trust which is part of such security or securities. 5. The aggregate amount of participation certificates issued, outstanding and based upon the particular security or group of securities on which the certificate so reported is based. There shall be filed with such report an appraisement of each separate parcel of property mentioned in the report, an appraisement of Avhich has not theretofore been made and filed in accordance with the provisions of this section, which ap- praisement shall be made by a person or corporation approved by the insurance commissioner and by the superintendent of banks. In such appraisement the market value of each parcel 215 MORTGAGE INSURANCE COMPANIES. § 453gg of land and of the improvements thereon, if any, also the aggregate value of such parcel of land and improvements shall be stated, together with a general statement of the character of such land and of the kind and condition of such improve- ments, if any. Such appraisement shall be signed and verified by such appraiser, or by an officer of the corporation making such appraisement, and shall be accompanied by a certificate signed and verified by at least three directors of such mortgage insur- ance company to the effect that in the opinion of the affiants and each of them such appraisement is correct, and that in their opinion the amount thereof does not exceed the market value of the property, and that the principal amount lent on the security of such property does not in their opinion exceed fifty per centum of the market value of such property, also . to the effect that said company has in its possession or control evidences of title consisting of a full abstract of title, a full certificate or guaranty of title, or a policy of title insurance, showing that the mortgage or deed of trust securing such loan is a first lien upon a marketable title in fee to the property covered thereby. In case of the neglect or iailure of any such mortgage insur- ance company to make any such quarterly report as herein provided, such company shall forfeit to the state of California ten dollars per day for every day during which such neglect or failure continues ; provided, however, that the insurance commissioner shall have authority to extend the time within which any such report may be filed for not exceeding a period of ten days. [Amendment approved 1915 ; Stats. 1915, 1544.] Legislation § 453gg. 1. Added by Stats. 1913, p. 480, and then read: "A mortoage insurance company may invest its capital and accumu- lations in the following named securites: 1. In the purchase of, or loans upon interest-bearing bonds of the United States, or those for which the faith and credit of the United States are pledged for the payment of principal and interest. 2. 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, including bonds of this state, or those for which the faith and credit of the state of California are pledged for the paj'ment of principal and interest. 3. In the purchase of, or loans upon interest-bearing bonds of any of the counties and in- corporated cities and towns, and duly organized school districts of any state or territory of the United States not in default for interest on such bonds. 4. In the purchase of, or loans upon interest-bearing bonds of irrigation districts as provided or authorized by section 8 of an act entitled 'An act relating to bonds of irrigation districts, pro- viding uncler what circumstances such bonds may be made legal invest- ments for the funds of banks, banking associations, trust companies, insurance companies, and for the state school funds and trust funds, and providing for the deposit of such bonds as security for public § 454 CIVIL CODE. 216 moneys, and providing for a commission for approving certain bonds of irrigation districts, for a report thereon, for the tiling of such report, for a certificate of the state controller, and for the recording of snch bonds in the office of the state controller,' approved December 18, 1911. 5. In loans secured by mortgage or deed of trust upon unencumbered real estate, improved or unimproved, or in the purchase of, or loans upon notes or bonds so secured; provided, that the principal so loaned, or the entire note or bond issue under such mortgage or deed of trust shall not exceed sixty per centum of the market value of such real estate with improvements taken as security; and provided, further, in case said loan is made, or said note or bond issue created for a building loan on real estate, that at no time shall the principal so loaned, or the entire note or bond issue, exceed sixty per centum of the market value of the real estate and the actual cost of the improve- ments thereon taken as security. No mortgage insurance company shall invest in, hold or own any of the capital stock of any other cor- poration, nor make any loan, in whole or in part, on the security of the capital stock of any other corporation." 2. Amendment by Stats. 1915, p. 1541. § 453hh. Quarterly reports to insurance commissioner. [Repealed 1915; Stats. 1915, p. 1538.] Legislation § 453hh. 1. Added by Stats. 1913, p. 482. 2. Repealed by Stats. 1915, p. 1538, when the entire chapter was re- vised. TITLE III. Railroad Corporations. Chapter I. OfTicers and Corporate Stock. §§ 454-459. II. Enumeration of Powers. §§ 465-478. III. Business, how Conducted. §§ 479-494. CHAPTER I. Officers and Corporate Stock. § 454. Directors to be elected, when. § 455. Additional provisions in assessment and transfer of stock. § 456. Corporations may borrow money and issue bonds. Limitation of amount. § 457. To provide a sinking fund to pay bonds. § 458. Capital stock to be fixed. § 459. Certificate of payment of fixed capital stock. § 454. Directors to be elected, when. Directors of railroad eorporatioiis may be elected at a meeting of tbe stockholders other than the annual meetino'. as a majority of the fixed capital stock may determine, or as the by-laws may provide: notice thereof to be given as provided for notices of meetings to adopt by-laws in article two, chapter one. title one. of this part. Legislation § 454. Enacted March 21, 1872; based on Stats. 1861. p. 613. § 13; Stats. 1863, p. 610. § 4. 217 RAILROAD CORPORATIONS. CORPORATE STOCK. § 456 § 455. Additional provisions in assessment and transfer of stock. No stock in any railroad corporation is transferable until all the previous calls or installments thereon have been fully 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 ap- proved by the board of directors. Legislation § 455. Enacted March 21, 1872; based on Stats. 1861, p. 612, § 12; Stats. 1863, p. 613, § 3. § 456 Corporations may borrow money and issue bonds. Limitation of amount. Railroad corporations may borrow, on the credit of the corporation and under such regulations and re- strictions as the board of directors thereof, by unanimous con- currence, may impose, such sums of money as may be neces- sary for constructing and completing their railroad, with its equipments, and for the purchase of all necessary rolling- stock and all else relative thereto, and may issue promissory notes therefor, or may issue and dispose of bonds to raise moneys necessary to pay therefor, at a rate of interest not exceeding ten per cent per annum ; and may also issue bonds, or promissory notes, at the same rate of interest in payment of any debts or contracts for constructing and completing their road, with its equipments and rolling-stock, and all else rela- tive thereto, and for the purchase of railroads and other property within the purpose of the corporation. The amount of bonds, or promissory notes, issued for such purposes must not exceed in all the amount of their capital stock ; and to secure the payment of such bonds, or notes, they may mort- gage their corporate property and franchises, or may secure the payments of such bonds, or notes, by deed of trust of their corporate property and franchises. Any person or corporation formed under the laws of this state, or of any other state within the United States, that the directors of the rail- road corporation may, by unanimous concurrence, select, may be trustees in such deed of trust. [Amendment approved 1899; Stats. 1899, p. 57.] Debt exceeding available means. Penalty: See Pen. Code, § 566. Legislation § 456. 1. Enacted March 21, 1872 (based on Stats. 1861, p. 610, § 1.5; Stats. 1862, p. 547, § 1), and then read: "Railroad corpora- tions may borrow, on the credit of the corporation and under such regulations and restrictions as the directors thereof, by unanimous concurrence, may impose, such sums of money as may be necessary for constructing and completing their railroad, and may issue and dis- pose of bonds or promissory notes therefor, in denominations of not less than tive hundred dollars, and at a rate of interest not exceeding ten per cent per annum; and may also issue bonds or promissory notes, kof the same denomination and rate of interest, in payment of any debts or contracts for constructing and completing their road, with § 459 CIVIL CODE. 218 its equipments and all else relative thereto. 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, the}' may mortgage their corporate property and franchise." 2. Amended by Code Amdts. 1880, p. 10, (1) at end of first sentence, adding "and for the purchase of railroads and other property within the purposes of the corporation"; (2) changing "franchise" (the last word of the section) to "franchises," and adding thereafter the matter in the present section. 3. Amended by Stats. 1897, p. 73, and then read as the amendment of 1899, except for the changes made at- that session of the legislature. i. Amended by Stats. 1899, p. 57, (1) in first sentence, (a) omitting, after "necessary to pay therefor," the words "in denominations of not less than five hundred dollars," (b) changing, after "or promissory notes," the words "of the same denomination and rate" to "at the same rate"; (2) in sentence beginning "The amount," changing "pay- ment" to "payments," in second instance (as, to which, quaere); the amendment becoming a law, under constitutional provision, without governor's approval. § 457. To provide a sinking fund to pay bonds. The di- rectors must provide a sinking' fund, to be specially applied to the redemption of such bonds on or before their maturity, and may also confer on any holder of any bond or note so issued, for money borrowed or in payment of any debt or contract for the construction and equipment of such road, the right to convert the principal due or owing thereon into stock of such corporation, at any time within eight years from the date of such bonds, under such regulations as the directors may adopt. Legislation § 457. Enacted March 21, 1872; based on Stats. 1861, p. 614, § 15; Stats. 1862, p. 547, § 1. § 458. Capital stock to be fixed. When, at any time after filing the articles of incorporation, it is ascertained that the capital stock therein set out is either more or less than ac- tually required for constructing, equipping, operating, and maintaining the road, by a two-third vote of the stockholders the capital stock must be fixed, and a certificate thereof, and of the proceedings had to fix the same, must be made out and filed in the office of the secretary of state. Legislation § 458. Enacted March 21, 1872; based on Stats. 1861, p. 610, § 6. § 459. Certificate of payment of fixed capital stock. With- in thirty days after the payment of the last installment of the fixed capital stock of any railroad corporation organized under this title and part, the president and secretary' and a majority of the directors thereof must make, subscribe, and file in the office of the secretary of state a certificate, stating the amount of the fixed capital stock, and that the whole 219 RAILROAD CORPORATIONS. ENUMERATION OP POWERS. § 465 thereof has been paid in. The certificate must be verified by the affidavit of the president and secretary. Legislation § 459. Enacted March 21, 1872; based on Stats. 1861, p. 614, § 16. CHAPTER II. Enumeration of Powers. § 465. Eailroad corporations. Enumeration of powers. § 465a. "What motive power may be used; authority must be obtained. § 466. Map and profile to be filed. § 467. May change line of road. § 468. Forfeiture of franchise. Construction must be commenced and continued; operation. § 469. Crossings and intersections. Condemnation. § 470. Not to use streets, alleys, or water, in cities or towns, except by a two-third vote of the city or town authorities. § 471. Eailroads through cities not to charge fare to and from points therein. [Eepealed.] § 472. When crossing railroads or highways, how other lands are ac- quired. § 473. Corporations may consolidate. Publication of notice. Copy to be filed. § 473a. Eight to lease or use another road in common. § 474. State lands granted for use of corporations. § 475. Grant not to embrace town lots. § 476. Wood, stone, and earth may be taken from state lands. § 477. Lands to revert to state, when. § 478. Selections made, how proved and certified to. §465. Railroad corporations. Enumeration of powers. Every railroad corporation has power : 1. To cause such examination and surveys to be made as may be necessary to the selection of the most advantageous route for the railroad ; and for such purposes their officers, agents and employees may enter upon the lands or waters of any person, subject to liability for all damages which they may do thereto; 2. To receive, hold, take, and convey, by deed or otherwise, as a natural person, such voluntary grants and donations of real estate and other property, which may be made to it to aid and encourage the construction, maintenance and accommoda- tion of such railroad; 3. To purchase, or by voluntary grants or donations to re- ceive, enter, take possession of, hold and use all such real estate and other property as may be absolutely necessary for the con- struction and maintenance of such railroads, and for all sta- tions, depots and other purposes necessary to successfully work and conduct the business of the road ; 4. To lay out its road, not exceeding ten rods wide, and to construct and maintain the same, with one or more tracks, and with such appendages and adjuncts as may be necessary for the convenient use of the same ; § 465 CIVIL CODE. 220 5. To coiistriict their roads across, along or upon any stream of water, watercourse, roadstead, bay, navigable stream, street, avenue or highway, or across any railway, canal, ditch or flume which the route of its road intersects, crosses or runs along, in such manner as to afford security for life and property; but the corporation shall restore the stream or watercourse, road, street, avenue, highway, railroad, canal, ditch or flume thus intersected to its former state of usefulness as near as may be, or so that the railroad shall not unnecessarily impair its use- fulness or injure its franchise ; 6. To cross, intersect, join, or unite its railroad with any other railroad, either before or after construction, at any point upon its route, and upon the grounds of such other railroad coi-poration, with the necessary turnouts, sidings and switches, and other conveniences in furtherance of the objects of its connections ; and every corporation whose railroad is, or shall be hereafter intersected by any new railroad, shall unite Avith the owners of such new railroad in forming such intersections and connections, and grant facilities therefor ; and if the two corporations cannot agree upon the amount of compensation to be made therefftr, or the points or the manner of such crossings, intersections and connections, the same shall be ascertained and determined as is provided in title seven, part three, Code of Civil Procedure (sees. 1237-1263) ; 7. To purchase lands, timber, stone, gravel or other materials to be used in the construction and maintenance of its road, and all necessary appendages and adjuncts, or acquire them in the manner provided in title seven, part three. Code of Civil Pro- cedure, for the condemnation of lands ; and to change the line of its road, in Avhole or in part, whenever a majority of the directors so determine, as is provided hereinafter ; but no such change must vary the general route of such road, as contem- plated in its articles of incorporation ; 8. To carrj" persons and property on their railroad, and to receive tolls or compensation therefor; 9. To erect and maintain all necessary and convenient build- ings, stations, depots, fixtures and machinery for the accommo- dation and use of their passengers, freight and business ; 10. To regulate the time and manner in which passengers and property shall be transported, and the tolls and compen- sation to be paid therefor within the limits prescribed by law and subject to alteration, change or amendment by the legis- lature at any time ; 11. To regulate the force and speed of their locomotives, cars, trains or other machinery used and employed on their roads, and to establisli, execute and enforce all needful and 221 RAILROAD CORPORATIONS. ENUMERATION OF POWERS, § 465a proper rules and regiilatious for the management of its business transactions usual and proper for railroad corporations ; 12. To purchase, lease or acquire the franchises, rights and property, or any part thereof, of any railroad corporation, leasing or owning any railroad outside of the state of California, and to operate the same, and to use the franchises of any such road, and to build and operate extensions thereof; provided that nothing herein shall authorize any corporation to purchase the franchises, rights, and property of any railroad operated in competition with it; and to purchase, acquire and hold the stocks, bonds or other securities of any railroad corporation or- ganized under the laws of this state or of any other state or territory, with full power to sell the same ; provided that noth- ing herein will authorize any corporation to purchase the stock of any railroad corporation operated in competition with it. [Amendment approved 1907; Stats. 1907, p. 99.] Exceeding limit upon power to acquire realty: ISee ante, § ;iG(). Eminent domain: Sec Code Civ. J'roc., §§ 1237-1263. Subd. 6. Crossings and intersections: Hee post, § 4(39. Subd. 8. Rates of charges: See post, § 489. Establishment of rates by railroad commissioners: See Const., art. xii. § 22. Subd. 10. Regulating time and manner, of transportation, time-tables of starting: See post, § 4S1. Subd. 11. Rules and regulations: See post, §§ 484, 2186. Subd. 12. Purchase of franchise of other roads: See j)()st, § 494. Legislation § 465. 1. Enacted March 21, 1872 (based on Stats. 1861, p. (i07, SI"), and differed from the amendment of 1907, (1) in subd. 1, not having the word "may" before "do thereto" at end of subdivision (added in 190.3); (2) having in subd. 4, (a) "nine rods wide," instead of "ten rods wide," and (b) "a single or double track" instead of "one or more tracks"; (3) in subd. 8, not having the sign of the infinitive before "receive"; (4) not containing subd. 12 (added in 1903). 2. Amendment by Stats. 1901, p. 367; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1903, p. 245, (1) in subd. 1, inserting "may" before "do thereto," (2) in subd. 8, adding the sign of the infinitive before "receive"; (3) adding subd. 12. 4. Amended by Stats. 1907, p. 99, the changes being noted supra. § 465a. What motive power may be used ; authority must be obtained. Every person or corporation now or hereafter authorized to operate a railroad by steam motive power, is also authorized to use electricity or compressed air, or both, either with or without such steam, for the purpose of pro- pelling cars or trains on such railroad or upon any portion thereof. In incorporated cities, towns, or cities and counties having more than five thousand inhabitants, authority must be obtained from the legislative authority thereof. Legislation § 465a. 1. .^dditiflu by Stats. 1901, p. 368; unconstitu- tional. See note, § 4, ante. § 468 CIVIL CODE. 222 2. Added by Stats. 1905, p. 574; the code commissioner saying, "This section is a codification of tlie statute of 1893, p. 208, relating to the operation of railroads." § 466. Map and profile to be filed. Every railroad corpora- tion in this state must, within a reasonable time after its road is finally located, cause to be made a map and profile thereof, and of the land acquired for the use thereof, and the bound- aries of the several counties through which the road may run, and file the same in the office of the secretary of state; and also like maps of the parts thereof located in different counties, and file the same in the office of the clerk of the county in which such parts of the road are, there to remain of record forever. The maps and profiles must be certified by the chief engineer, the acting president and secretary of such company, and copies of the same, so certified and filed, be kept in the office of the secretary of the corporation, subject to examina- tion by all parties interested. Legislation § 466. Enacted March 21, 1872; based on Stats. 1861, p. 621, § 34. § 467. May change line of road. If, at any time after the location of the line of the railroad and the filing of the maps and profiles thereof, as provided in the preceding section, it appears that the location can be improved, the directors may, as provided in subdivision seven, section four hundred and sixty-five, alter or change the same, and cause new maps and profiles to be filed, showing such changes, in the same offices where the originals are of [on] file, and may proceed, in the same manner as the original location was acquired, to acquire and take possession of such new line, and must sell or relin- quish the lands owned by them for the original location, within five years after such change. No new location, as herein pro- vided, must be so run as to avoid any points named in their articles of incorporation. Changing location: See ante, § 465, subd. 7. Legislation § 467. Enacted March 21, 1872; based on Stats. 1861, p. 616, § IS. § 468. Forfeiture of franchise. Construction must be com- menced and continued; operation. Every railroad corporation must, within two years after filing its original articles of incorporation, begin the construction of its road, and must every year thereafter complete and put in full operation at least five miles of its road, until the same is fully completed; and upon its failure so to do, for the period of one year, its right to extend its road beyond the point then completed is forfeited. After the completion of any railroad, or any part 223 RAILROAD CORPORATIONS. ENUMERATION OF POWERS. § 469 thereof, capable of being operated, its owner must operate it, and upon his failure to keep it, or any part thereof, in full operation for the period of six months, his right to operate it in whole or in part, as the case may be, is forfeited, and the lands ocenpied for the purposes of the road, so far as the same is not operated, revert to the original owners or their successors in interest. A railroad is in full opera- tion when one passenger train, or one mixed train, is run over it once a day in each direction and a sufficient number of freight trains to accommodate the traffic on the road. If a railroad is wholly constructed at an elevation of five thousand feet or more above the level of the sea, its owner is not re- quired to maintain and operate it, nor to run passenger or other trains thereon, between the fifteenth of October of any year and the fifteenth of May of the year following. This section must not be construed to require the operation of a road when prevented by the act of God, nor when the opera- tion of the road, together with its branch and trunk lines, does not yield income sufficient to defray the expenses of maintaining and operating it in connection with its branch and trunk lines. The railroad commissioners have the power to examine and determine whether a railroad, together with its branch and trunk lines, yields income sufficient to operate the same. [Amendment approved 1905; Stats. 1905, p. 574.] Organizing and commencing work: See general provision, ante, § 358. Act enabling railroad companies to complete railroads; See post, Ap- pendix, tit. "Eailroads." Legislation § 468. 1. Enacted March 21, 1872 (based on Stats. 1861, p. 626, § 54; Stats. 1869-70, p. 578, § 2), and then read: "Every railroad corporation must, within two years after filing its original articles of incorporation, begin the construction of its road, and must every year thereafter complete and put in full operation at least five miles of its road, until the same is fully completed; and upon its failure so to do, for the period of one year, its right to extend its road beyond the point then completed is forfeited." 2. Amendment by Stats. 1901, p. 369; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1905, p. 574; the code commissioner saying, "The amendment consists in codifying and adding to the old section the provisions of the statute of 1880, p. 43, to compel the operation of railroads, and of the statute of 1897, p. 5, to provide for the man- agement and operation of railroads above certain elevations." § 469. Crossings and intersections. Condemnation. When- ever the track of one railroad intersects or crosses the track of another railroad, whether the same be a street-raiload, wholly within the limits of a city or town, or 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 persons or § 472 CIVIL CODE. 224 corporations owning the railroads cannot agree as to the com- pensation to I e made for cutting and adjusting the rails, the condemnation of the right of way over the one for the use of the other road may be had in proceedings under title seven, part three. Code of Civil Procedure, and the damages assessed and the right of way granted as in other cases. Right of eminent domain: Code Civ. Proc, §§ 1237-1263. Crossings and intersections: See ante, § 465, subd. 6. See also Code Civ. Proc, § 1240. Railroad crossings, separation of grades: See Code Civ. Proc, § 1240. Legislation § 469. Enacted March 21, 1872; based on Stats. 1862, p. 49S, § 2. § 470. Not to use streets, alleys, or water, in cities or towns, except by a two-third vote of the city or town authorities. No railroad corporation must use any street, alley, or highway, or any of the land or water, within any incorporated 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. Legislation § 470. Enacted March 21, 1872. The code commission- ers say: "This is a limitation upon § 367, general provisions of corpora- tions." § 471. Railroads through cities not to charge fare to and from points therein. [Repealed 1878 ; Code Amdts. 1877-78, p. 84.] Legislation § 471. 1. Enacted March 21, 1872. 2. Amended bv Code Amdts. 1875-76, p. 76. 3. Repealed by Code Amdts. 1877-78, p. 84. §472. When crossing railroads or highways, how other lands are acquired. Whenever the track of such railroad crosses a railroad or highway, such railroad or highway may be carried under, over, or on a level with the track, as may be most expedient; and in cases where an embankment or cutting necessitates a change in the line of such railroad or highway, the corporation may take such additional lands and material as are necessary for the construction of such road or highway on such new line. If such other necessary lands cannot be had otherwise, they may be condemned as provided in title seven, part three. Code of Civil Procedure ; and when compensation is made therefor, the same becomes the property of the corporation. Crossings and intersections: See ante, § 465, subd. 6, 469. See also Code Civ. Proc, § 1240. Legislation § 472. Enacted March 21, 1872; based ou Stats. 1861, p. 617, § 19. 225 RAILROAD CORPORATIONS. ENUMERATION OF POWERS. § 473 § 473. Corporations may consolidate. Publication of no- tice. Copy to be filed. Any railroad corporation incorporated under the laws of this state may consolidate with one or more railroad corporations incorporated under the laws of this state, or under the laws of any other state or territory of the United States, its capital stock, properties, roads, equip- ments, adjuncts, franchises, claims, demands, contracts, agree- ments, obligations, debts, liabilities and assets of every kind and description, upon such terms and in such manner as may be agreed upon by their respective boards of directors ; pro- vided, no such consolidation shall take effect until the same shall have been ratified and confirmed in writing by stock- holders of the respective corporations representing three fourths of the subscribed capital stock of their respective cor- porations. In case of such consolidation "articles of incor- poration and consolidation" must be prepared, setting forth: First, the name of the new corporation; .second, the purpose for which it is formed; third, the place where its principal business is to be transacted ; fourth, the term for which it is to exist, which shall not exceed fifty years : fifth, the number of its directors (which shall not be less than five, nor more than thirteen), and the names and residences of the persons appointed to act as such until their successors are elected and qualified; sixth, the amount of its capital stock (which shall not exceed the amount actually required for the purposes of the new corporation, as estimated by competent engineers), and the number of shares into which it is divided ; seventh, the amount of stock actually subscribed, and by Avhom; eighth, the termini of its road or roads and branches; ninth, the estimated length of its road or roads and branches; tenth, the names of the constituent corporations, and the terms and conditions of consolidation in full. Said articles of incorpora- tion and consolidation must be signed and countersigned by the presidents and secretaries of the several constituent cor- porations and sealed with their corporate seals. There must be annexed thereto memoranda of the ratification and con- firmation thereof by the stockholders of each constituent cor- poration, which must be respectively signed by stockholders representing at least three fourths of the capital stock of their respective corporations. "When completed as aforesaid said articles must be filed in the office of the county clerk of the county in which the orisrinal articles of incorporation of either of the consolidating corporations are filed, and a copy of the articles of incorporation and consolidation certified by such county clerk must be filed in the office of the secretary of state, and thereupon the constituent corporations named Civ. Code — 15 § 473 CIVIL CODE. 226 therein must be deemed and held to have become extinct in all courts and places, and said new corporation must be deemed and held in all courts and places to have succeeded to all their several capital stocks, properties, roads, equipments, adjuncts, franchises, claims, demands, contracts, agreements, assets, choses and rights in action of every kind and description, both at law and in equity, and to be entitled to possess, enjoy, and enforce the same and every thereof, as fully and com- pletely as either and every of its constituents might have done had no consolidation taken place. Said consolidated or new corporation must also, in all courts and places, be deemed and held to have become subrogated to its several constituents and each thereof, in respect to all their contracts and agree- ments with other parties, and all their debts, obligations, and liabilities, of every kind and nature, to any persons, corpora- tions, or bodies politic, whomsoever, or whatsoever, and said new corporation must sue and be sued in its own name in any and every case in which any or either of its constituents might have sued or might have been sued at law or in equity had no such consolidation been made. Nothing in this section con- tained shall be construed to impair the obligation of any con- tract to which any of such constituents were parties at the date of such consolidation. All such contracts may be en- forced by action or suit, as the case may be, against the con- solidated corporation, and satisfaction obtained out of the property which, at the date of the consolidation, belonged to the constituent which was a party to the contract in action or suit, as well as out of any other property belonging to the consolidated corporation. [Amendment became- a laAV under constitutional provision 1901 j Stats. 1901, p. 327.] Legislation § 473. 1. Enacted March 21, 1872 (based on Stats. 1S61, p. 622, § 40), and then read: "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 consolidation must take place without the written consent of the holders of three fourths in value of all the stock of each corporation; and no such amalgamation or consolidation must in any way relieve such corporation or the stock- holders thereof from any and all just liabilities. In case of such amal- gamation or consolidation, due notice of the same must be given, by advertisement for one month in at least one newspaper in each county, if there be one published therein, into or through which such roads run, and also for the same length of time in one paper published in Sacramento and in two papers published in San Francisco; and when the consolidation and amalgamation is completed, a copy of the new articles of incorporation must be tiled in the otHce of the secretary of state." 2. Amended by Stats. 1901, p. 327; becoming a law, uncjer constitu- tional provision, without governor's approval. 227 RAILROAD CORPORATIONS. ENUMERATION OF POWERS. § 477 § 473a. Right to lease or use another road in common. Railroad corporations doing business in this state and organ- ized under any law of this state or the United States, or of any state or territory thereof, have power to enter into con- tracts with one another, whereby the one may lease of the other the whole or any part of its railroad, or may acquire of the other the right to use, in common with it, the whole or any part of its railroad. Legislation § 473a. 1. Addition by Stats. 1901, p. 369; unconstitu- tional. See note, § 4, ante. 2. Added by Stats. 1905, p. 57.5; the code commissioner saying, "§ 2 of the statute of 18S0, p. 21, authorizing railway and other corporations organized under the laws of this state or of any stale or territory of the United States to do business in this state, on equal terms, is codified in this section." § 474. State lands granted for use of corporations. 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. Legislation § 474. Enacted March 21, 1872. § 475. Grant not to embrace town lots. The grants men- tioned in the preceding section do not apply to public lands of the state within the corporate limits of towns and cities, or within three miles thereof. Legislation § 475. Enacted March 21, 1872. §476. Wood, stone, and earth may be taken from state lands. The right to take from any of the lands belonging to the state, adjacent to the works of the corporation, all ma- terials, such as wood, stone, and earth, naturally appurtenant thereto, which may be necessary and convenient for the origi- nal construction of its works and adjuncts, is granted to such corporations. Legislation § 476. Enacted March 21, 1872. § 477. Lands to revert to state, when. If any corporation receiving state lands or appurtenances thereunder is dissolved, ceases to exist, is discontinued, or the route or line of its works is so changed as not to cover or cross the lands selected, or the use of the lands selected is abandoned, such selected § 479 CIVIL CODE. 228 lands revert, and the title thereto is reinvested in the state or its grantees, free from all such uses. Legislation § 477. Enacted March 21, 1872. § 478. Selections made, how proved and certified to. When any selection of the right of way, or land for an adjunct to the works of a railroad corporation, is made by any corporation, the secretary thereof must transmit to the surveyor-general, controller of state, and recorder of the county in which the selected lands are situate, a plat of the lands so selected, giving the extent thereof and uses for which the same is claimed or desired, duly verified to be correct; and, if ap- proved, the surveyor-general must so indorse the plat, and issue to the corporation a permit to use the same, unless, on petition properly presented to the court, a review is had and such use prohibited. Legislation § 478. Enacted March 21, 1872. CHAPTER III. Business, how Conducted. § 479. Checks to be affixed to all baggage. Damages. § 480. Annual report to be verified. Form of report. § 481. Duties of corporation. § 482. Corporation to pay damages for refusal. § 483. Furnish room inside passenger-cars, and be responsible for dam- ages occurring on freight and other cars. § 484. Corporations to post i>rinted regulations, and not responsible for damages in violation of rules. § 485. Maintenance of fences along railroads; damages for killing stock. § 485a. Right to private crossings over railroads. § 486. Regulations of trains. Penalty. § 487. Passenger refusing to pay fare. § 4S8. Officers to wear badge. § 489. Rates of charges. § 490. Passenger-tickets, how issued, and to be good for six months. § 491. Character of rails to be used. § 492. Elevated or underground railways. § 493. To apply to all railroad companies. § 494. Sale of property and franchises to another railroad. §479. Checks to be affixed to all baggage. Damages. A check must be affixed to every package or parcel of baggage when taken for transportation by any agent or employee of such railroad corporation, and a duplicate thereof given to the passenger or person delivering the same in his behalf ; and if such check is refused on demand, the railroad corporation must pay to such passenger the sum of twenty dollars, to be recovered in an action for damages; and no fare or toll must be collected or received from such passenger, and if such pas- senger has paid his fare, the same must be returned by the 229 RAILROAD CORPORATIONS. BUSINESS, HOW CONDUCTED. § 481 conductor in charge of the train ; and on producing the check, if his baggage is not delivered to him by the agent or em- ployee of the railroad corporation, he may recover the value thereof from the corporation. Legislation § 479. Enacted March 21, 1872; based on Stats. 1861, p. 623, § 42. §480. Annual report to be verified. Form of report. Every railroad corporation must make an annual report to the secretary of state, or other officer designated by law, of its operations for each year, ending on the thirty-first day of De- cember, verified by the oaths of the president or acting super- intendent of operations, the secretary and treasurer of such corporation, and file it in the office of the secretary of state, or such other designated officer, by the twentieth day of Feb- ruary, which must state : 1. The capital stock, and the amount thereof actually paid in; 2. The amount expended for the purchase of lands for the construction of the road, for buildings, and for engines and cars, respectively ; 8. The amount and nature of its indebtedness, and the amount due the corporation; 4-. The amount received from the transportation of passen- gers, property, mails, and express matter, and from other sources ; 5. The amount of freight, specifying the quantity in tons ; 6. The amount paid for repairs of engines, cars, buildings, and other expenses, in gross, showing the current expenses of running such road ; 7. The number and amount of dividends, and when paid; 8. The number of engine-houses and shops, of engines and cars, and their character. Legislation § 480. Enacted March 21, 1872; based on Stats. 1861. p. 624, § 44. § 481. Duties of corporation. Every such corporation must start and run its cars, for the transportation of persons and property, at such regular times as it shall fix by public notice, and must furnish sufficient accommodations for the transpor- tation of all such passengers and property as, within a reason- able time previous thereto, offer or are offered for transporta- tion, at the place of starting, at the junction of other railroads, and at siding and stopping-places established for receiving and discharging way passengers and freight ; and must take, trans- port, and discharge such passengers and property at, from, and § 484 CIVIL CODE. 230 to such places, on the due payment of tolls, freight, or fare therefor. [Amendment approved 1905; Stats. 1905, p. 575.] Rules and regulations: See post, § 484. Legislation § 481. 1. Enacted March 21, 1872; based on Stats. 1861, p. 624, § 45. 2. Amendment by Stats. 1901, p. 369; unconstitutional. See aote, § 4, ante. 3. Amended by Stats. 1905, p. 575, changing (1) "run their cars" to "run its cars," (2) "as they shall fix" to "as it shall fix," (3) "offer or is offered" -to "offer or are offered"; the code commissioner saying, "The amendment consists in the substitution of the word 'its' for 'their,' and the substitution of 'it' for 'they,' thus correcting errors of grammar"; but quaere as to the combination, "the transportation of all such passengers and property as . . . offer or are offered for trans- portation." § 482. Corporation to pay damages for refusal. In case of refusal by such corporation or their apjents so to take and transport any passengers or property, or to deliver the same, at the regular appointed places, such corporation must pay to the party aggrieved all damages which are sustained thereby, with costs of suit. Legislation § 482. Enacted March 21. 1872; based on Stats. 1861, p. 624, § 46. § 483. Furnish room inside passenger-cars, and be respon- sible for damages occurring on freight and other cars. Every railroad corporation must furnish, on the inside of its passen- ger-ears, sufficient room and accommodations for all passen- gers to whom tickets are sold for any one trip, and for all persons presenting tickets entitling them to travel thereon; and when fare is taken for transporting passengers on any baggage, wood, gravel, or freight car, the same care must be taken and the same responsibility is assumed by the corpora- tion as for passengers on passenger-cars. Accommodations to be furnished: See ante, § 481. Legislation § 483. Enacted March 21, 1872; based on Stats. 1861, p. 625, § 48. § 484. Corporations to post printed regulations, and not responsible for damages in violation of rules. Every railroad corporation must have printed and conspicuously posted on the inside of its passenger-cars its rules and regulations re- garding fare and conduct of its passengers ; and in case any passenger is injured on or from the platform of a car, or on any baggage, wood, gravel, or freight car, in violation of such printed regulations, or in violation of positive verbal instruc- tions or injunctions given to such passenger in person by any officer of the train, the corporation is not responsible for dam- 231 RAILROAD CORPORATIONS. BUSINESS, HOW CONDUCTED. § 485 ages for such injuries, unless the corporation failed to comply with the provisions of the preceding section. Rules and regulations by carriers of passengers. Generally: See ante, § 465, subd. 11; post, § 21SG. Legislation § 484. Enacted March 21, 1872; based on Stats. 1861, y. 625, § IS. § 485. Maintenance of fences along- railroads ; damages for killing' stock. Railroad corporations must make and maintain a good and sufficient fence on both sides of their track and property. In case they do not make and maintain such fence, if their engine or cars shall kill or maim any cattle or other domestic animals upon their line of road, except where the same runs through or upon public land they must pay to the owner of such cattle or other domestic animals a fair market price for the same, unless it occurred through the neglect or fault of the owner of the animal so killed or maimed. Railroad corporations paying to the owner of the land through or along which their road is located an agreed price for making and maintaining such fence, or paying the cost of such fence with the aAvard of damages allowed for the right of way for such railroad, are relieved and exonerated from all claims for damages arising out of the killing or maiming any animals of persons who thus fail to construct and maintain such fence ; and the owners of such animals are responsible for any damages or loss which may accrue to such corporation from such animals being upon their railroad track, resulting from the nonconstruction of such fence, unless it is shown that such loss or damage occurred through the negligence or fault of the corporation, its officers, agents or employees. [Amendment approved 1915 ; Stats. 1915, p. 1281.] Cattle-guards and fences, cost of and election to build: See Code Civ. Proc, §§ 1248, 1251. Legislation § 485. 1. Enacted March 21, 1872; based on Stats. 1861, p. 623, § 40. It read as enacted in 1872: "fCailroad corporations must make and maintain a good and sufficient fence on either or both sides of their track and property. In case they do not make and maintain such fence, if their engine or cars shall kill or maim any cattle or other domestic animals upon their line of road which passes through or along the property of the owner thereof, they must pay to the owner of such cattle or other domestic animals a fair market price for the same, unless it occurred through the neglect or fault of the owner of the animal so killed or maimed. Railroad corporations paying to the owner of the land through or along which their road is located an agreed price for maldng and maintaining such fence, or paying the cost of such fence with the award of damages allowed for the right of way for such railroad, are relieved and exonerated from all claims for damages arising out of the killing or maiming any animals of persons who thus fail to .construct and maintain such fence; and the owners § 487 CIVIL CODE. 232 of such animals are responsible for any damages or loss ■which may accrue to such corporation from such animals being upon their rail- road track, resulting from the non-construction of such fence, unless it is shown that such loss or damage occurred through the negligence or fault of the corporation, its officers, agents, or employees." 2. Amended by Stats. 1915, p. 1281. §485a. Rig-ht to private crossings over railroads. The owner or owners of any lands along or through which any railroad is constructed or maintained, shall have the right to such farm or private crossings over such railroad and rail- road right of way as may be reasonably necessary or con- venient for ingress to or egress from such lands, or in order to connect such lands with other adjacent lands of such owner or owners ; and the owner or operator of such railroad shall construct and at all times maintain such farm or private crossing in a good, safe and passable condition ; provided, that the railroad commission shall have the authority to determine the necessity for such crossing and the place, manner and con- ditions under which said crossing shall be constructed and maintained, and shall fix and assess the cost and expense thereof. Legislation § 185a. Added by Stats. 1915, p. 920. § 486. Regulations of trains. Penalty. A bell, of at least twenty pounds weight, must be placed on each locomotive-en- gine, and be rung at a distance of at least eighty rods from the place where the railroad crosses any street, road, or highway, and be kept ringing until it has crossed such street, road, or highway ; or a steam- whistle must be attached, and be sounded, except in cities, at the like distance, and be kept sounding at intervals until it has crossed the same, under a penalty of one hundred dollars for every neglect, to be paid by the corpora- tion operating the railroad, which may be recovered in an ac- tion prosecuted by the district attorney of the proper, county, for the use of the state. The corporation is also liable for all damages sustained by any person, and caused by its locomo- tives, train, or cars, when the provisions of this section are not complied with. Omitting to ring bell, a misdemeanor: Pen. Code, § 390. Legislation § 186. Enacted March 21, 1872; based on Stats. 1861, p. 623, § 41. § 487. Passenger refusing to pay fare. If any passenger refuses to pay his faro, or to exhibit or surrender his ticket, when reasonably requested so to do, the conductor and em- ployees of the corporation may put him and his baggage out 233 RAILROxVD CORPORATIONS. BUSINESS, HOW CONDUCTED. § 489 of the ears, using no unnecessary force, at any usual stopping- place, or near any dwelling-house, on stopping the train. Refusing to pay fare: See, generally, post, §§ 2187 et seq. Legislation § 487. Enacted March 21, 1872; based on Stats. 1861, p. 626, § 49. § 488. Officers to wear badge. Every conductor, baggage- master, engineer, brakeman, or other employee of any railroad corporation, employed on a passenger train or at stations for passengers, must wear upon his hat or cap, or in some con- spicuous 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 con- ductor, without such badge, is authorized to demand or to receive from any passenger any fare, toll, or ticket, or exercise any of the powers of his office or station ; and no other officer or employee, without such badge, has any authority to meddle or interfere with any passenger or property. Legislation § 488. Enacted March 21, 1872; based on Stats. 1861, p. 626, § 50. § 489. Rates of charg'es. Whenever the board of railroad commissioners, in the discharge of its duties, establishes or adopts rates of charges for the transportation of passengers and freight, pursuant to the provisions of the constitution, said board must serve a printed schedule of such rates, and of any changes that may be made in such rates, upon the person, co- partnership, company, or corporation affected thereby ; and upon such service it is the duty of such person, copartnership, company, or corporation to immediately cause copies of the same to be posted in all its offices, station-houses, warehouses, and landing-offices affected by such rates, or change of rates, in such manner as to be accessible to public inspection during usual business hours. Said board must also make such further publication thereof as it deems proper and necessary for the public good. If the party to be served is a corporation, such service may be made upon the president, vice-president, secre- tary, or managing agent thereof, and if a copartnership, upon any partner thereof. The rates of charges established or adopted by said board, pursuant to the constitution and the laws of this state, must go into force and effect on the twen- tieth day after service of such schedule of rates, or changes in rates, upon the person, copartnership, company, or corpora- tion affected thereby. [Amendment approved 1905 ; Stats. 1905, p. 575.] Asking or receiving illegal fare, a misdemeanor: Pen. Code, § o2o. Rates "of charges on street-railroads: Post, § 501. § 490 CIVIL CODE. 234 Power of railroad corporations to charge tolls or compensation: Ante, § 465, subd. 8. Legislation § 489. 1. Enacted March 21, 1872 (based on Stats. 1861, p. 626, § 51), and then read: "All railroad corporations must fix and publish their rates of charges for freightage and fares from one depot to another, on their A'arious lines of road in this state, graduated as follows: 1. One rate of charges per mile for a distance of one hundred miles or over; 2. One rate for a distance of seventy-five and less than one hundred miles, charging not exceeding ten per cent per mile more than the first rate; 3. One rate for a distance of fifty and less than seventy-five miles, charging not exceeding fifteen per cent per mile more than the first rate; 4. One rate for a distance of twenty-five and less than fifty miles, charging not exceeding twenty per cent per mile more than the first rate; 5. One rate for a distance not exceeding twenty-five miles, charging not exceeding twenty-five per cent per mile more than the first rate. But in no ease, nor in an}' 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 trans- gression of these limitations the corporation is liable, to the party suffering thereby, treble the entire amount of fare or freightage so charged to such party. In no ease is the corporation required to re- ceive less than twenty-five cents for an}' one lot of freight for any distance." The code commissioners say: "The provision fixing grades of charges is in accordance with the statutes of the states of Maine, Missouri, Kansas and others, and frequent suggestions in this state. In Kansas and Missouri six cents per mile is the maximum charge for passenger fare, and freightage is graded something like the provisions of this section. We have not disturbed the existing law fixing a maxi- mum of freightage and fares, but. to produce a systematic uniformity, require grades to be fixed based upon distance alone. It would be clearly a wrong to allow a charge for one hundred miles to be doubled for an intermediate distance of fifty miles." 2. Amendment by Stats. 1901, p. 370; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1905, p. 575; the code commissioner saying, "§ 11 of the statute of 1880, p. 47, defining the powers of the board of railroad commissioners, is substituted in place of the present § 489. The latter had been inoperative since the adoption of the constitution of 1879." § 490. Passenger-tickets, how issued, and to be good for six months. 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 passage on their passenger-cars a ticket, which entitles the purchaser to a ride, and to the accommodations provided on their cars, from the depot or station Avhere the same is purchased to any other depot or station on the line of their road. Every such ticket entitles the holder thereof to ride on their passenger- cars to the station or depot of destination, or any intermediate station, and from any intermediate station to the depot of destination designated in the ticket, at any time within six months thereafter. Any corporation failing so to provide and 235 RAILROAD CORPORATIONS. BUSINESS, HOW CONDUCTED. § 493 furnish tickets, or refusing the passage which the same calls for when sold, must pay to the person so refused all actual damages caused thereby, with reasonable counsel fees ex- pended in recovering same. [Amendment approved 1901 ; Stats. 1901, p. 600.] Legislation § 490. 1. Enacted March 21, 1872. The code commis- sioners say: "The change here proposed makes a ticket for which value has been paid by a holder available at any time within six months. No good reason can be assigned why passengers should not be protected as well as others against inevitable accidents. A slight inconvenience to a corporation ought not to deprive one of small means of all consideration or convenience." 2. Amended by Stats. 1901, p. 600, at end of section, changing "the sum of two hundred dollars" to "all actual damages caused thereby, with reasonable counsel fees expended in recovering same." § 491. Character of rails to be used. All railroads, other than street-railroads and those used exclusively for carrying freight or for mining purposes, built by corporations organ- ized under this chapter, must be constructed of the best qual- ity of iron or steel rail, known as T or H rail, or other pat- tern of equal utilitv. [Amendment approved 1874; Code Amdts. 1873-74, p. 2i2.] Legislation § 491. 1. Enacted March 21, 1872; based on Stats. 1861, p. 626, § 57; Stats. 1862, p. 498, § 1. 2. Amended by Code Amdts. 1873-74, p. 212, at end of section, (1) adding "or steel" affer "iron," and (2) omitting the word "rail" after "T" (original code, "T rail or H rail"). § 492. Elevated or underground railways. The legislative or other body to whom is intrusted the government of the county, city and county, city, or town, under such regulations, restrictions, and limitations, and upon such terms and pay- ment of license tax as the county, city and county, city, or town authority may provide, may grant franchises for the construction of elevated or underground railroad tracks over, across, or under the streets and public highways of any such county, city and county, city, or town, for the term not ex- ceeding fifty years ; provided, that before granting such fran- chise there shall be presented to such legislative or other body a petition signed by the owners of a majority of the landed property, other than public property, on the line of said ele- vated portion applied for. Elevated roads: See post, § 498. Legislation § 492. 1. Added by Stats. 1895, p. 241. 2. Reiteal by Stats. 1901, p. 370; unconstitutional. See note, § 4, ante. § 493. To apply to all railroad companies. The provisions of section four hundred and ninety-two shall apply to any rail- 1 494 CIVIL CODE. 236 way corporation heretofore or hereafter incorporated. [Amendment approved 1905; Stats. 1905, p. 576.] Legislation § 493. 1. Added by Stats. 1895, p. 242, and then read: "This act shall apply to all railroad companies heretofore and here- after incorporated." 2. Eepeal by Stats. 1901, p. 370; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1905, p. 576; the code commissioner saying, "The change consists in the substitution of the words 'the provisions of section four hundred and ninety-two' in place of 'this act,' " this probably being the only change recommended by the commissioner. § 494. Sale of property and franchises to another railroad. Any railroad corporation, person or persons, firm or corpora- tion, owning any railroad in this state, may sell, convey, and transfer its property and franchises, or any part thereof, to any other railroad corporation, whether organized under the laws of this state or of any other state or territory, or nnder any act of Congress; and any other such railroad corporation receiving snch conveyance may hold and operate snch railroad franchises and property within this state, bnild and operate extensions and branches thereof, and thereunto exercise the right of eminent domain, and do any other business in connec- tion therewith, ns fully and effectually to all intents and pur- poses as if such corporation were organized under the laws of this state ; provided, that before such sale, conveyance, or transfer shall become operative, an agreement in writing must be executed by the parties thereto, containing the terms and conditions of the purchase and sale, and its execution must be authorized by the board of directors and ratified by three fourths of the stockholders of each of the railroad eomnanies that are parties to such conveyance and transfer, and said agreement or conveyance shall be recorded in each county through which said road or roads pass in this state; and pro- vided further, that no sale, conveyance, or transfer under this act shall relieve the franchise or property sold, conveyed, or transferred, from the liability of the grantor contracted or incurred in the operation, use, or enjoyment of such franchise or any of its privileges; provided, that this section shall not authorize any corporation to purchase any railroad property operated in competition with it; and provided further, that any or all established rates for fares and tolls for carrying passengers or freight between any points upon any railroad purchased under the provisions of this act, shall not be in- creased without the consent of the governmental authority in which is vested by law the power to regulate fares and freights; and nrovided further, that whenever a railroad cor- poration, which has purchased any line of road under this act. 23'? RAILROAD CORPORATIONS. BUSINESS, HOW CONDUCTED. § 494 shall for the purposes of competing with any other common carrier lower its rates for transportation of passengers or freight from one point to another upon such line purchased, such reduced rates shall not be again raised or increased from such standard without the consent of the governmental author- ity in which shall be vested the power to regulate fares and freights; and provided further, that for every violation of the provisions of this act on the part of directors or governing officers of said corporation, the state shall be entitled to re- coA^er from such offending railroad company the sum of ten thousand dollars. It is hereby declared to be the duty of the attorney-general of the state, in the event of any such viola- tion, to demand and collect from such company the said pen- alty ; and he is hereby authorized and empowered to prosecute all the necessary actions in the name of the people of the state of California against such company in the courts of the state. All money so collected shall be paid into the general fund of this state. [Amendment approved 1903 ; Stats. 1903, p. 50.] Purchase of franchise of other roads: See ante, § 465, subd. 12. Legislation § 494. 1. Added by Stats. 1899, p. 178, approved March 22, 1899, and read: "Any railroad corporation owning any railroad in this state may sell, convey and transfer its property and franchises or any part thereof, to any other railroad corporation, whether organ- ized under the laws of this state or of any other state or territory, or under any act of Congress; and any other such railroad corporation receiving such conveyance may hold and operate such railroad fran- chises and property within this state, build and operate extensions and branches thereof, and thereunto exercise the right of eminent domain, and do any other business in connection therewith, as fully and effectu- ally to all intents and purposes as if such corporation were organized under the laws of this state; provided, that such sale, conveyance and transfer shall be made within three years from the date this act shall take effect; and provided further, that before such sale, conveyance or transfer shall become operative, an agreement in writing must be executed by the parties thereto, containing the terms and conditions of the purchase and sale, and its execution must be authorized by the board of directors and ratified by three fourths of the stockholders of each of the railroad companies that are parties to such conveyance and transfer, and said agreement or conveyance shall be recorded in each county through which said road or roads pass in this state; and pro- vided further, that no sale, conveyance or transfer under this act shall relieve the franchise or property sold, conveyed or transferred from the liability of the grantor contracted or incurred in the opera- tion, use or enjoyment of such franchise or any of its privileges; provided, that this section shall not authorize any corporation to purchase any railroad property operated in competition with it; and provided, however, corporations operating any railroad or part of a railroad under lease shall be entitled to purchase such leased property (whether competitive or otherwise) under the provisions and subject to the conditions of this act; and provided further, that any or all established rates for fares and tolls for carrying passengers or freight between any points upon any railroad purchased under the provisions §494 CIVIL CODE. 238 of this act, shall not be increased without the consent of the govern- mental authority in which is vested by law the power to regulate fares and freights; and provided further, that whenever a railroad corpora- tion, which has purchased any line of road under this act, shall for the purpose of competing with any other common carrier lower its rates for transportation of passengers or freight from one point to another upon such line purchased, such reduced rates shall not l3e again raised or increased from such standard without the consent of the gov- ernmental authority in which shall be vested the power to regulate fares and freights; and provided further, that for every violation of the provisions of this act on the part of directors, or other governing oiBcers of said corporation, the state shall be entitled to recover from such offending railroad company the sum of ten thousand dollars. It is hereby declared to be the duty of the attorney-general of the state, in the event of any such violation, to demand and collect from such company the said penalty; and he is hereby authorized and empowered to prosecute all the necessary actions in the name of the people of the state of California against such companj^ in the courts of the state. All money so collected shall be paid into the general fund of this state." 2. Amended by Stats. 1903, p. 50, approved February 27, 1903, but the title of the act designates the amendment as the addition of a new section, reading thus, "An Act amending the Civil Code of the state of California, by adding thereto a new section, numbered 494, authorizing the sale by any railroad company, person or persons, firm or corporation, owning any railroad in this state, of its property and franchises, or any part thereof, to any railroad company, whether or- ganized under the laws of this state or of any other state or territory, or under any act of Congress, and describing the conditions and pen- alties under which such property and franchises so sold may thereafter be operated and used." 3. By Stats. 1905, p. 576, § 494 as enacted in 1899 was repealed, the repealing act reading, "Section four hundred and ninety-four of the Civil Code, as approved March 22. 1S99, is hereby repealed; provided, that nothing in this act contained shall be deemed to repeal any of the provisions of section 494 of said code as approved February 27, 1903"; the code commissioner saying, "In 1899 a section relating to the sale of railroads was added to the code, and numbered 494. In 1903 a new section was added, also numbered 494, and clearly intended to super- sede the old § 494. Accordingly, it is thought advisable to repeal the earlier section." 239 STREET- RAILROAD CORPORATIONS. S 497 TITLE IV. Street-railroad Corporations. § 497. Authority to lay street-railroad track, how obtained. Limitations and restrictions. § 498. Eestrietions and limitations. Manner of constructing tracks. § 499. City trustees may permit two or more street railway lines to use the same tracks. § 500. Crossing tracks. Obstructions. § 501. Kates of fare on street-cars. Construction of cars. Penalty. § 502. Time allowed for commencing and completing work. Penalty. Extension of time. § 503. May make further regulations and rules. § 504. Penalty for overcharging. § 505. To provide and furnish passenger-tickets. . Penalty. § 506. Proof of agency. § 507. Keserved rights. § 508. License to be paid to city or town. § 509. Track for grading purposes. § 510. Provisions of title three applicable to street-railroads. § 511. Title applicable to natural persons alike with corporations. § 497. Authority to lay street-railroad track, how obtained. Limitations and restrictions. Authority to lay railroad tracks through the streets and public highways of any incorporated city, city and county, or town, may be obtained for a term of years not exceeding fifty, from the trustees, council, or other body to Avhom is intrusted the government of the city, city and county, or town, under such restrictions and limitations, and upon such terms and payment of license tax, as the city, city and county, or town authority may provide. In no case must permission be granted to propel cars upon such tracks otherwise than by electricity, horses, mules, or by wire ropes running under the streets and moved by stationary engines, unless for special reasons in this title hereinafter mentioned ; provided, however, that such board or body in granting the right, or at any time after the same is granted, to use elec- tricity or any other of said modes, shall have power to impose such terms, restrictions, and limitations as to the use of streets and the construction and mode of operating such electric and other roads as may, by such board or body, be deemed for the public safetv or welfare. [Amendment approved 1891 ; Stats. 1891, p. 12.] Act limiting time within which franchise may be granted: See post, Appendix, tit. "Railroads." Act validating ordinance granting franchise: See post, Appendix, tit. "Railroads." Legislation § 497. 1. Enacted March 21, 1872 (based on Stats. 1869- 70, p. 481, § 1), and then read: "Authority to lay railroad tracks through the streets and public highways of any incorporated city or § 498 CIVIL CODE. 240 town may be obtained, for a term of years not exceeding fifty, from the trustees, council, or other body to whom is intrusted the govern- ment of the city or town, under such restrictions and limitations, and upon such terms and payment of license tax, as the city or town authority may provide. In no case must permission be granted to pro- pel cars upon such tracks otherwise than by horses or mules, unless for special reasons, as hereinafter provided." 2. Amended by Code Amdts. 1875-76, p. 76, in second sentence, in- serting "or by wire ropes running under the streets and moved by stationary steam-engines." 3. Amended by Stats. 1891, p. 12. 4. Amendment by Stats. 1901, p. 370; unconstitutional. See note, § 4, ante. § 498. Restrictions and limitations. Manner of construct- ing' tracks. The city or town authorities, in granting the right of way to street-railroad corporations, in addition to the restrictions which they are authorized to impose, must require a strict compliance with the following conditions, except in the cases of prismoidal or other 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 on which it may be erected, when allowed by the granting power : First. To construct their tracks on those portions of streets designated in the ordinance granting the right, which must be as nearly as possible in the middle thereof. Second. To plank, pave, or macadamize the entire length of the street, used hy their track, between the rails, and for two feet on each side thereof, and between the tracks, if there be more than one, and to keep the same constantly in repair, flush with the street, and with good crossings. Third. That the tracks must not be more than five feet wide within the rails, and must have a space between them sufficient to allow the cars to pass each other freely. [Amend- ment approved 1876; Code Amdts. 1875-76, p. 77.] Elevated roads: See ante, § 492. Legislation § 498. 1. Enacted March 21, 1872 (based on Stats. 1869- 70, p. 482, §§ 1, 6; Stats. 1863, p. 296, § 1), (1) the introductory para- graph then ending with the word "conditions" in first sentence, the remainder of the paragraph being added in 1875-76; (2) subd. 1 read- ing as at present; (3) subd. 2 did not have the words "and between the tracks if there be more than one" (added in 1873-74) ; (4) subd. 3 then reading, "That the tracks must not be more than five feet wide within the rails, and a space between the track sufficient to allow the cars to pass each other freely." 2. Amended by Code Amdts. 1873-74, p. 212, (1) the introductory paragraph and subd. 1 reading as the original code section; (2) subds. 2 and 3 reading as the amendment of 1875-76. . Manner of Constructing 498 Restrictions and L'- *-^'.°";; JJ^Jranting the right of Tracks The city or town ^utl^oritiesm grant g ^^^ ^^^^^.^_ IZ to street -"-^J^-^^ « i-P-^ ^"^^ ^'^^"^^^ " ^'^^'f tions which they are f^,^^^^",^ conditions, except in the cases of compliance with the ^"^'^^^.Xads n such cases, said ra,l- prismoidal or other ^{^''^'^^'fjZrncted in such a manner as way shall be ^^^^^'f^JnctZtot^e freedom of the streets will present the least o^s^iuc^ion ^^^ ^^^^^.^^ ^ 241 STREET-RAILROAD CORPORATIONS. § 499 3. Amended by Code Amdts. 1875-76, p. 77, in introductory para- graph, adding (a) the saving clause at the end of the first sentence, and (b) the second sentence, this being the only change. 4. Amendment by Stats. 1901, p. 371; unconstitutional. See note, § 4, ante. § 499. City trustees may permit two or more street rail- way lines to use same tracks. The legislative body of any incorporated city, city and county, or town, may permit two or more lines of street railway to use the same portion of the same street or the same tracks upon such terms as may be agreed upon by the companies operating such railways; but no permission shall be granted to one company to use the same tracks or portions of the same street for a distance of more than five consecutive blocks, without the consent of the person or company occupying said portion of the street and then only upon payment of an equal portion of the cost of construction of the tracks and appurtenances used by such railways jointly; provided, that any incorporated city, city and county, or town may own and operate street railways within or without the municipal limits, and may occupy the same street or tracks occupied or used by any street railway within its limits for any number of blocks upon payment to the owner thereof of an equal portion of the estimated cost of construction, at the time of such occupation, of such tracks or appurtenances as such city, city and county, or town may elect to use jointly with said street railway. Where such por- tion of such street shall be occupied l)y a track or tracks of a different gauge from the track or tracks proposed to be con- structed thereon by a line of street railway under a different management, such last-mentioned line of street railway may nevertheless construct its track or tracks, subject to the limita- tion before prescribed, over the same ground as may be occu- pied by such prior track or tracks ; provided, the same can be so constructed as not to interfere with the operation of such prior track or tracks beyond such necessary interference therewith as shall be incident to such construction with reasonable skill, care and diligence. [Amendment approved April 24, 1911 ; Stats. 1911, p. 1101.] Legislation § 499. 1. Enacted March 21, 1872 (based on Stats. 1869- 70, p. 48.3, § 10), and then read: "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 corporations occupy and use the same street or track for a distance of more than five blocks." 2. Amended by Stats. 1891, p. 13, to read: "Two lines of street- railway, operated under different managements, may be permitted to use the same street, each paying an equal portion for the construction of the tracks and appurtenances used by said railways jointly; but in Civ. Code — 16 § 501 CIVIL CODE. 242 no case must two lines of street-railway, operated under different managements, occupy and use the same street or tracks for a distance of more than five blocks consecutively." 3. Amended by Stats. 1907, p. 837, to read: "Two or more lines of street-railway, operated under different managements, may by lease or contract, use the same street or tracks upon such terms as may have been agreed upon between the companies operating such rail- ways; and two lines of street-railway operated under different man- agements may be permitted to use the same street or tracks for a dis- tance of five blocks without such lease or contract, upon payment of an equal portion for the construction of the tracks and appurtenances used by such railways jointly; but in no case shall a company owning or operating one line of street-railway be permitted to condemn the right to occupy and use the same street or tracks for a distance of more than five blocks consecutively. Where such portion of such street shall be occupied by a track or tracks of a different gauge from the track or tracks proposed to be constructed thereon by a line of street-railway under a different management, such last-mentioned line of street-railway may nevertheless construct its track or tracks, sub- ject to the limitation before prescribed, over the same ground as may be occupied by such prior track or tracks, provided the same can be so constructed as not to interfere with the operation of such prior track or tracks beyond such necessary interference therewith as shall be in- cident to such construction with reasonable skill, care and diligence." 4. Amended by Stats. 1911, p. 1101 to read as above. There were two amendments of this section in 1911, one adopted Feb. 15, Stats. 1911, p. 60, and the other adopted April 24, Stats. 1911, p. 1101. There was no substantial difference between the two amendments. The amend- ment of April 24th being the latest one adopted is the one that appears in the text. § 500. Crossing tracks. Obstructions. Any proposed rail- road track may be permitted to cross any track already con- structed, the crossing being made as provided in chapter two, title three, of this part. In laying down the track and pre- paring therefor, not more than one block must be obstructed at any one time, nor for a longer period than ten working- days. Crossing other railroads: See ante, §§ 465 et seq. Legislation § 500. Enacted March 21, 1872. § 501. Rates of fare on street-cars. Construction of cars. Penalty. The rates of fare on the cars must not exceed ten cents for one fare for any distance under three miles, and in municipal corporations of the first class must not exceed five cents for each passenger per trip of any distance in one di- rection either going or coming, along any part of the whole length of the road or its connections. The cars must be of the most approved construction for the comfort and con- venience of passengers, and provided with brakes to stop the same, when required. A violation of the provisions of this section subjects the corporation to a fine of one hundred dol- 243 STREET-RATLROAD CORPORATIONS. § 502 lars for each offense. [Amendment approved 1903; Stats. 1903, p. 172.] Rates of fare for railroad corporations: See § 489. Act limiting and fixing rates of fares: See post, Appendix, tit. "Rail- roads." Act permitting letter-carriers to ride free. See post, Appendix, tit. "Railroads." Legislation § 501. 1. Enacted March 21, 1872 (based on Stats. 1869- 70, p. 482, §§ 1, 6; Stats. 1863, p. 296, § 1), and then read: "The rates of fare on the cars must not exceed ten cents for one fare, for any distance under three miles. The cars must be of the most approved construction for comfort and convenience of passengers, and provided with brakes to stop the same, when required. The rate of speed must not be greater than eight miles per hour. A violation of the pro- visions of this section subjects the corporation to a fine of one hun- dred dollars for each offense." 2. Amendment by Stats. 1901, p. 371; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1903, p. 172. § 502. Time allowed for commencing and completing work. Penalty. Extension of time. Work to construct the railroad must be commenced in good faith within not more than one year from the date of the taking effect of the ordinance grant- ing the right of way, and said work must be completed within not more than three years after the taking effect of such ordinance ; provided, that the governing body of such municipal corpora- tion at the time of granting said right of way shall have the power to fix the time for either the commencing or completion, or both, of said work ; not, however, to a time less than six months for commencing, and not less than eighteen months for completing the same. A failure to comply with either of the foregoing provisions of this section, or with either of the provisions of the ordinance granting said right of way, works a forfeiture of the right of way, and also of the fran- chise, unless the uncompleted portion is abandoned by the person or corporation to whom said right of way is granted, with the consent of the authorities granting the right of way, such abandonment and consent to be in writing. The authority granting the right of way shall have the power to grant an extension of time for the completion of said work, if it ap- pear that the work has been commenced within the time fixed, and prosecuted in good faith ; but no extension of time shall be granted for the commencement of said work, and shall not be granted for more than one year for the completion of the same. All extensions of time shall be in writing, and made a matter of record in the municipality. Provided further, that this act shall not in any way -affect any franchise or right of way granted before its passage. [Amendment approved 1895; Stats. 1895, p. 17.] § 50^ CIVIL CODE. 244 Forfeiture for failure to commence work. Of railroad corporations: See ante, § 468. Generally: See ante, § 358. Act to enable corporations to complete their roads: See act of 1877- 78, p. 94-4, post. Appendix, tit. "Railroads." Legislation § 502. 1. Enacted March 21, 1872 (based on Stats. 1869- 70, p. 482, §§ 1, 6; Stats. 1863, p. 296, § 1), and then read: "Work to construct the railroad must be commenced within one year from the date of the ordinance granting the right of way and the filing of articles of incorporation, and the same must be completed within three years thereafter. A failure to comply with these provisions works a forfeiture of the right of way as well as of the franchise, unless the uncompleted portion is abandoned by the corporation, with the consent of the authorities granting the right of way — such abandonment and consent to be in writing." 2. Amended by Stats. 1895, p. 17. § 503. May make further regulations and rules. Cities and towns in or through which street-railroads run may make such further regulations for the government of such street railroads as may be necessary to a full enjoyment of the franchise and the enforcement of the conditions provided herein. Legislation § 503. Enacted March 21, 1872; based on Stats. 1869-70, p. 483, § 10. § 504. Penalty for overcharging. Any corporation, or agent or employee thereof, demanding or charging a greater sum of money for fare on the cars of such street railroad than that fixed, as provided in this title, forfeits to the person from whom such sum is received, or who is thus overcharged, the sum of two hundred dollars, to be recovered in a civil action, in any justice's court having jurisdiction thereof, against the corporation. Legislation § 504. 1. Enacted March 21, 1872; based on Stats. 1863, p. 297, § 1. 2. Amendment by Stats. 1901, p. 371; unconstitutional. See note, § 4, ante. § 505. To provide and furnish passenger-tickets. Penalty. Every street-railroad corporation must provide, and on request furnish to all persons desiring a passage on its cars, any re- quired quantity of passenger-tickets or checks, each to be good for one ride. Any corporation failing to provide and furnish tickets or checks to any person desiring to purchase the same at not exceeding the rate hereinbefore described, shall forfeit to such person the sum of two hundred dollars, to be recovered as provided in the preceding section ; pro- vided, that the provisions of this section shall not apply to such street-railroad corporations as charge but five cents fare. [Amendment approved 1SS3'; Code Amdts. 1883, p. 84.] Legislation § 505. 1. Enacted March 21, 1872 (based on Stats. 1863, p. 297, § 1), and then read: "Every street-railroad corporation must 245 STREET-RAILROAD CORPORATIONS. § 507 provide and, on request, furnish to all persons desiring a passage on their cars any required quantity of passenger tickets or checks, each to be good for one ride. Any corporation failing so to provide and furnish tickets or checks to any person desiring to purchase the same, at not exceeding the rate hereinbefore fixed, must pay to such person the sum of two hundred dollars, to be recovered as provided in the preceding section." 2. Amended by Code Amdts. 1873-74, p. 213, (1) and then had the word "prescribed" instead of "described," as in the present section (as to which, quaere), (2) but did not contain the proviso at end of section. 3. Amended by Code Amdts. 1883, p. 84. § 506. Proof of agency. Upon the trial of an action for any of the sums forfeited, as provided in the two preceding sections, proof that the person demanding or receiving the money as fare, or for the sale of the ticket or check, was at the time of making the demand or receiving the money, en- gaged in an office of the corporation, or vehicle belonging to the corporation, shall be prima facie evidence that such person was the agent, servant, or employee of the corporation, to receive the money, and give the ticket or check mentioned. [Amendment approved 1874; Code Amdts. 1873-74, p. 213.] Legislation § 506. 1. Enacted March 21, 1872 (based on Stats. 1863, p. 297, §§ 3, 5), and then read: "Upon the trial of any action for the forfeiture named in the two preceding sections, proof that the person demanding or receiving such sum of money as fare, or for the sale of such ticket or check was, at the time of making such demand or re- ceiving such moneys, engaged on or at any car, omnibus, or vehicle of any railroad belonging to such corporation, is primary evidence that such person so demanding or receiving such moneys was the agent, servant, or employee of the corporation so owning, using, or employing such railroad." 2. Amended by Code Amdts. 1873-74, p. 213. § 507. Reserved rights. In every grant to construct street railroads, the right to grade, sewer, pave, macadamize, or otherwise improve, alter, or repair the streets or highways, is reserved to the corporation, and cannot be alienated or impaired; such work to be done so as to obstruct the railroad as little as possible, and, if required, the corporation must shift its rails so as to avoid the obstructions made thereby. [Amendment approved 1874; Code Amdts. 1873^74, p. 214.] Legislation § 507. 1. Enacted March 21, 1872 (based on Stats. 1869- 70, p 483, §9), and then read: "Every city, town, or city and county, granting the right to construct street-railroads within its limits, must reserve the right to grade, sewer, pave, macadamize or otherwise im- prove, alter, or repair the streets or highways permitted to be used by the corporation, the work to be so done by the city or town as to obstruct the railroad as little as possible, and when such works make the same necessary, the corporation must shift its rails so as to avoid the obstructions made thereby." 2. Amended by Code Amdts. 1873-74, p. 214. § 510 CIVIL CODE. 246 3. Amendment by Stats. 1901, p. 372; unconstitutional. See note, § 4, ante. § 508. License to be paid to city or town. Each street- railroad corporation mnst pay to the authorities of the city, town, county, or city and county, as a license upon each car, such sum as the authorities may fix, not exceeding fifty dol- lars per annum in the city of San Francisco, nor more than twenty-five dollars per annum in other cities or towns. Where any street-railroad connects or runs through two or more cities or towns, a proportionate or equal share of such license tax must be paid to each of the cities or towns; and no such license tax is due the county authorities where the same is paid to any city or town authority. Licenses: See Pol. Code, §§ 3356 et seq. Legislation § 508. Enacted Marcli 21, 1872; basesoeiation or society upon such terms as may be agreed by an unanimous vote of their re- spective boards of directors, ratified by the written consent of the shareholders holding- more than two-thirds of the shares in force in each of the respective contracting associations; provided, however, that any such con.sideration or transfer must also be approved by the official or officials vested by law with powers of state supervision and license. (In effect 90 days from and after April 22, 1919. Stats. 1919, Chap. 33.) Civil Code, 1919. 327 LAND AND BUILDING CORPORATIONS. § 648 a policy of mortgage insurance, or mortgage participation certificates, issued by a mortgage insurance company in ac- cordance with the provisions of chapter VIII, of title II of part IV of division first of the Civil Code, the total of which investments at any time shall not exceed twenty-five per centum of the assets of such association ; provided, however, that any such loan or investment made by such association must be approved by the official, or officials, vested with the powers of supervision and license. [Amendment approved 1915; Stats. 1915, p. 317.] Legislation § 647. 1. Added by Stats. 1907, p. 923, in repealing Title XVI and substituting a new Title XVI. See ante, Legislation Title XVI. The original code § 647 provided for the consolidation and trans- fer of corporation business and property, and was repealed by Stats. 1891, p. 252, in repealing Title XVI, the same act substituting a new § 647, which provided that all building and loan corporations doing business in this state should be subject to the' provisions of this title relating to bank commissioners. As enacted in 1907 the section read: "Any building and loan association may invest in or loan upon bonds of the United States, of the state' of California, or of the counties or municipalities or school districts of said state, but not to exceed twenty-five per cent of its capital." 2, Amended by Stats. 1915, p. 317. § 648. Building- and loan associations, to include Mrhat. The name ''building and loan associations," as used in this title shall include: First. Corporations formed for the purpose of receiving money from, and loaning money to, their members only. Second. Corporations, associations, companies, copartner- ships, and individuals transacting the business of issuing or selling bonds, debentures, certificates, shares of stock, or other papers, by whatever names said instruments may be desig- nated, whether said instruments are issued for money paid in advance or for money to be paid in installments, but with an intent, either implied or expressed, that the proceeds or accu- mulated installments thereof and thereon are to be with- drawable or repayable, with accumulated profits, at some future fixed, or indefinite date of maturity ; provided always, that this section does not include persons, copartnerships or corporations engaged in any kind of banking business. [Amendment approved 1909 ; Stats. 1909, p. 609.] Legislation § 648. 1. Added by Stats. 1891, p. 252, in repealing Title XVI and substituting a new Title XVI, and then read: "The name 'building and loan association,' as used in this act, shall include all cor- porations, societies, or organizations, or associations doing a savings and loan or investment business on the building society plan, viz.: loaning its funds to its members or its shareholders, and whether issuing cer- tificates of stock which mature at a time fixed in advance or not." 2. Repealed by Stats. 1907, p. 923, in repealing Title XVI, and re- enacted and amended by the' same act, differing from the amendment § 648a . CIVIL CODE. 328 of 1909, in that it (1) had in introductory paragraph "association" in- stead of "associations"; (2) in subd. Second, (a) had "instrument" instead of "instruments" before "may be designated," and (b) did not have the clause beginning "but with an intent" and ending "date of maturity," before the proviso. See ante, Legislation Title XVI. 3. Amended by Stats. 1909, p. 609. The original code § 648 provided that married women and minors might become members and hold shares in land and building corporations, the present § 643 being an amendment of that section, q. v., ante. § 6481/2. Act imposing tax on stocks not applicable. [Re- pealed 1905; Stats. 1905, p. 753.] Legislation § 6481/2. 1. Added by Stats. 1891, p. 257, in repealing Title XVI and substituting a new title XVI. See ante. Legislation Title XVI. 2. Repeal by Stats. 1901, p. 387; unconstitutional. See note, § 4, ante. 3. Repealed by Stats. 1905, p. 753; the code commissioner saying, "This section is no longer necessary; the statute referred to therein, to wit: that of 1877-78, page 955, having been repealed (Stats. 1897, p. 243). The section is, therefore, repealed." § 648a. Formation of building" and loan associations. Re- incorporation of existing associations. Building and loan as- sociations may be formed under this title with or without guarantee or other capital stock, with all the rights, powers and privileges and subject to all the restrictions and liabilities set forth in this title. If formed without any capital stock or with guarantee capital stock only, the working capital may be accumulated by the issue of membership shares, units or certificates having a paid-up or ultimate matured installment value of one hundred or two hundred dollars each, and en- titled to all the rights, powers and privileges and subject to all the restrictions and liabilities provided in this title for shares of authorized capital stock of a similar class. Any building and loan association heretofore formed may reincor- porate under the provisions pf this section and may substitute membership shares, units or certificates of similar classes for its outstanding or authorized shares of capital stock, other than guarantee capital stock, by the unanimous vote of its board of directors and by a vote or written assent of the stock- holders representing at least two thirds of the subscribed capital stock and by filing amended articles of incorporation with the county clerk of the county in which the corporation's principal place of business is located and a copy of said amended articles, certified by such county clerk, in the office of the secretary of state. Legislation § 648a. Added by Stats. 1909, p. 721. 648a. Formation of Building and Loan Associations; Rein- corporation of Existing Associations. Building and loan associa- tions may be formed under this title with or without guarantee or other capital stock, with all the rights, powers and privileges and subject to all the restrictions and liabilities set forth in this title. If formed without any capital stock or with guarantee capital stock only, the working capital may be accumulated by the issue of membership shares, units or certificates having a paid-up or ultimate matured installment value of one hundred or two hundred dollars each, and entitled to all the rights, powers and privileges and subject to all the restrictions and liabilities provided in this title for shares of authorized capital stock of a similar class. Any building and loan association heretofore formed may reincorporate under the provisions of this section and may substitute membership shares, units or certificates of similar classes for its outstanding or authorized shares of capital stock, other Than guarantee capital stock [by amending its articles of incorporation in the manner prescribed by section three hundred sixty-two of this code, except that such amended articles of incorporation must be adopted by a unanimous vote of the board of directors.] (In effect 90 days from and after April 29. 1921. Stats. 1921, Chap. 134.) Civ. Code, 1921. 329 COLLEGES AND SEMINARIES OK LEAKNING. § 649 TITLE XVII. Colleges and Seminaries of Learning-. § 649. Incorporation of colleges. Trustees. Capital stock. § 650. Classification of trustees. Quorum. Powers. § 651. Existing institutions may reincorporate under this act. Legislation Title XVII. Added by Stats. 1885, p. 132, the title of the act reading, "An act to amend the Civil Code by adding to part four, division first, a new title, providing for the incorporation of col- leges and seminaries of learning," the title then containing §§ 649-651. § 649. Incorporation of colleges. Trustees. Capital stock. Any number of persons who may desire to establish a college or seminary of learning may incorporate themselves as pro- vided in this part, except that in lieu of the requirements of section 290, the 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 thirty and the names and residences of the trustees. The term for whic*h the trustees named and their successors are to hold office may also be stated. If it is de- sired that the trustees, or any portion of them, shall belong to any organization, society, or church, such limitation shall be stated. 5. If said corporation is to have capital stock, the amount of its capital stock and the number of shares into which it is divided, and the amount actually subscribed and by whom. [Amendment approved 1911; Stats. 1911, p. 583.] Legislation §649. 1. Added by Stats. 1885, p. 133. 2. Amended by Stats. 1909, p. 30, in subd. 4, substituting "twenty-five" for "fifteen." As amended in 1909 the section read: "Any number of persons who may desire to establish a college or seminary of learn- ing may incorporate themselves as provided in this part, except that in lieu of the requirements of section two hundred [and] ninety, the articles of incorporation shall contain: 1. The name of the corporation. 2. The purjiose for which it is organized. 3. The place' where the col- lege or seminary is to be conducted. 4. The number of its trustees, which shall not be less than five nor more' tha9 twenty-five, and the names and residences of the trustees. The term for which the trustees pamed and their successors are to hold office may also be stated. If it is desired that the trustees, or any portion of them, shall belong to any organization, society, or church, such limitation shall be stated. 5. The names of those wlio liave subscribed money or property to assist in founding the seminary or college, together witlj tlie amount of money and description of property subscribed." 3. Amended by Stats. 1911, p. 583. § 650 CIVIL CODE. 330 § 650. Classification of trustees. Quorum. Powers. Un- less otherwise provided in the articles of incorporation the board of trustees shall, as soon as organized, so classify them- selves that one-fifth of their number shall go out of office every year, and thereafter the trustees shall hold office for five years. A ma.iority of the trustees shall constitute a quorum for the transaction of business, except where the number of trustees exceeds thirteen they may, in the by-laws, provide that not less than seven shall constitute a quorum. The office of the corpo- ration shall be at the college or seminary or at such place as shall be designated by the board of trustees. The trustees shall have the power : 1. To elect, by ballot, annually one of their number as presi- dent 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 who shall hold office for the time and under the conditions prescribed in the by-laws of the corpora- tion ; provided, that where there are graduates of the institu- tion, such graduates may, under such rules as the board shall prescribe, nominate persons to fill vacancies in the board of trustees. Such nominations shall be considered by the board, but it may reject any or all such nominations, and of its own motion appoint others. 3. To elect additional trustees ; provided, the Avhole number elected shall never exceed thirty at am* one time. 4. To declare vacant the seat of any trustee who shall absent himself from eight succeeding meetings of the board: 5. To receive and hold, by purchase, gift, devise, bequest, or grant, real or personal property for educational purposes connected with the corporation, or for the benefit of the institution. 6. To sell, mortgage, lease and otherwise use and dispose of the property of the coriDoration in such manner as they shall deem most conducive to the prosperity of the corporation. 7. To direct and prescribe the course of study and discipline to be observed in the college or seminary. 8. To appoint a president of the college or seminary, who shall hold his office during the pleasure of the trustees. 9. To appoint such professors, tutors, and other officers as they shall deem necessary, who shall hold their offices during the pleasure of the trustees. 10. To grant such literary honors as are usually granted by any university, college, or seminary of learning in the United States and in testimony thereof to give suitable diplomas under their seal, and the signature of such officers of the corporation and the institution as they shall deem expedient. 331 COLLEGES AND SEMINARIES OF LEARNING. § 650 11. To fix salaries of the president, professors, and other officers and employees of the college or seminary. 12. Subject to the consent and approval of the organization, society or church to which it is required by the articles of in- corporation that said trustees shall belong, to make all by-law^ and ordinances necessary and proper to carry into effect the preceding powers and necessary to advance the interests of the college or seminary ; provided, that no by-laws or ordinances shall conflict wath the constitution or laws of the United States; or of this state. [Amendment approved 1913 ; Stats. 1913, p. 400.] Legislation § 650. 1, Added by Stats. 1885, p. 133. 2. Amended by Stats. 1909, p. 589, (1) in second paragraph, adding "the" before "power"; (2) in siibd. 3, changing "fiftee'n" to "twenty- five"; (3) in subd. 12, changing "ordinance" tc "ordinances" in the proviso. As amended in 1909 the section read: "Unless otherwise pro- vided in the articles of incorporation the board of trustees shall, as soon as organized, so classify themselves that one fifth of their num- ber shall go out of office every year, and thereafter the trustee's shall hold office for five years. A majority of the trustees shall constitute" a quorum for the transaction of business, and the office of the cor- poration shall be at the college or seminary. The' trustees shall have the power: 1. To elect, by ballot, annually one of their number as president of the board. 2. Upon the death, removal out of the state', or other vacancy in the office, or expiration of the term of any trustee, to elect another in his place; provided, that where there are graduates of the institution, such graduates may, under such rules as the board shall prescribe, nominate persons to fill vacancies in the board of trustees. Such nominations shall be considered by the board, but it may reject any or all such nominations, and of its own motion appoint others. 3. To elect additional trustees; provided, the whole number elected shall never exceed twenty-five at any one time. 4. To declare vacant the seat of any trustee who shall absent himself from eight succeeding meetings of the board. 5. To receive and hold, by pur- chase, gift, devise, bequest, or grant, real or personal property for edu- cational purposes connected with the corporation, or for the benefit of the institution. 6. To sell, mortgage, lease and otherwise use and dis- pose of the property of the' corporation in such manner as they shall deem most conducive to the prosperity of the corporation. 7. To di- rect and prescribe the course of study and discipline to be observed in the college or seminary. 8. To appoint a president of the college or seminary, who shall hold his office during the pleasure of the trustees. 9. To appoint such professors, tutors, and other officers as they shall deem necessary, who shall hold their offices during the' pleasure of the trustees. 10. To grant such literary honors as are usually granted by any university, college, or seminary of learning in the United States and in testimony thereof to give suitable diplomas under their seal, and the signature of such officers of the corporation and the institution as they shall deem expedient. 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 advance the interests of the college or seminary; provided, that no by-laws or ordinances shall conflict with the' constitution or laws of the United States, or of 3. Amended by Stats. 1913 p. 400. § 652 cmL CODE. 332 § 651. Existing institutions may reincorporate under this act. Any educational corporation, or body claiming to be such, now existing, may, by a unanimous vote of those of its trustees present at a special meeting called for that purpose, and of which due notice shall be given to each trustee, convey all its proi^erty, rights, and franchises, 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. Legislation § 651. Added by Code Amdts. 1885, p. 134. TITLE XVIII. Consolidation of Colleges and Institutions of Higher Education. § 652. Consolidation of colleges, manner of. Trustees, number of. § 653. Transfer of property. Indebtedness. Specific grants. Dissolu- tion. Legislation Title XVIII. Added by Stats. 1893, p. 4, the title of the act reading. "An Act to amend the Civil Code by adding to Part IV, Division First, a new title', providing for the consolidation of col- leges and institutions of higher education," the title then containing §§ 652, 653. § 652. Consolidation of colleges, manner of. Trustees, number of. Whenever any benevolent, religious or fraternal organization or society, having a grand lodge, assembly, con- ference or other legislative or representative head in the state of California, having two or more colleges or institutions of higher education under its patronage, shall, for the purpose of greater efficiency and simplicity in the administration of its educational interests, desire to consolidate such institutions under one management, such organization or society shall be and is hereby authorized to consolidate such institutions under one management by complying with the following provisions: Such grand lodge, assembly, conference or other legislative or representative head having authorized a consolidation of its institutions, a ncAv corporation shall be formed. The board of trustees of the new corporation shall at first consist of the per- sons constituting the boards of trustees of the several institu- tions, respectively thus consolidating, and others ; provided the number of trustees shall not exceed forty-five. The board of trustees shall be so classified that the term of office of one third of its number shall expire each year; the successors of such trustees, as their terms expire, shall be elected by such grand 333 CONSOLIDATION OP COLLEGES. § 653 lodge, assembly, conference or other legislative or repre- sentative head, at its annual meeting. The said board of trustees shall report annually to the grand lodge, conference, assembly or other legislative or repre- sentative head controlling it, the condition of affairs of such corporation, and the amount and manner of its receipts and expenditures. After the two or more colleges or institutions of higher education under the patronage of any benevolent, religious or fraternal organization or society, having a grand lodge, as- sembly, conference or other legislative or representative head in the state of California shall have become consolidated as hereinabove directed or specified, the board of trustees of .the new corporation, consisting at first of the persons constituting the boards of trustees of the several institutions, respectively thus consolidated, may be reduced in number after said board of trustees shall have transacted the business of said corpora- tion for a period of five years after such consolidation. Said number shall be reduced by the grand lodge, assembly, con- ference or other legislative or representative head of said col- leges or institutions of higher education in the following manner, viz. : At any annual session of such grand lodge, assembly, conference or other legislative or representative head, there shall be dropped from the number of trustees to be elected at that session of such grand lodge, assembly, con- ference or other legislative or representative head such a num- ber of trustees as those present at such session shall determine, provided however, that at no time shall the number of trustees composing such board be less than fifteen. [Amendment ap- proved 1909 ; Stats. 1909, p. 385.] Legislation § 652. 1. Added by Stats. 1893, p. 4. 2. Amended by Stats. 1909, p. 385, (1) in first paragraph, adding "hereby" before "authorized"; (2) in paragraph beginning "such grand lodge," (a) omitting the word "First" as the number of the paragraph, and (b) changing "consolidated," to "consolidating" after "respect- ively thus"; (3) in paragraph beginning "The said board," (a) omit- ting the word "Second" as the number of the paragraph, and (b) transposing the words "conference, assembly," from "assembly, con- ference"; (4) adding the final paragraph. § 653. Transfer of property. Indebtedness. Specific grants. Dissolution. The several boards of trustees of the institutions thus consolidated shall be and are hereby au- thorized and directed to transfer all property, real and per- sonal, held by them, to the new corporation, as herein con- stituted, together Avith all powers, privileges, and authority conferred upon or enjoyed by them under their respective charters or acts of incorporation. The new corporation receiv- ing such property shall assume all indebtedness and liabilities § 653a CIVIL CODE. 334 of such institutions as are thus consolidated, but shall not transfer such property from one location to another, except by an affirmative vote of not less than three fourths of the said board of trustees of the new corporation, nor divert specific grants, donations, or bequests from the purposes for which such grants, donations, or bequests were made. That after the boards of trustees have conveyed the property, real and personal, of the various institutions to the new corpora- tion, as hereinabove provided, and the same has been ac- cepted by the said new corporation, then the franchises held by the corporations thus consolidating shall cease, and the said corporations shall be thereby dissolved. [Amendment approved 1895; Stats. 1895, p. 40.] Legislation § 653. 1. Added by Stats. 1893, p. 4. 2. Amended by Stats. 1895,' p. 40, (1) in first sentence, inserting "and directed" after "authorized"; (2) in sentence beginning "The new corporation," adding "except by an affirmative vote of not less than three fourths of the said board of trustees of the new corpora- tion." TITLE XIX. Co-operative Business Corporations. § 653a. Purposes for which may be formed. Legislation Title XIX. Added by Stats. 1905, p. 594, and then con- tained the present § 653a, which was an unconstitutional addition by the code commissioners in 1901. See post. Legislation § 653a. § 653a. Purposes for which may be formed. Co-operative business corporations may be formed for doing any lawful business, and dividing a portion of their profits among per- sons other than their stockholders. Each of such corpora- tions may, in its by-laws, in addition to the matters specified in section three hundred and three, provide the amount of profits which must be divided among persons other than its stockholders, and the manner in which and the persons among whom such division may be made. Legislation § 653a. 1. Addition by Stats. 1901, p. 3S7; unconstitu- tional. See note, § 4, ante. 2. Added by Stats. 1905, p. 594; the code commissioner saying, "This section is a codification of that part of the statute of 1877-78, p. 883. defining co-operative corporations, and the section is placed in a new title designated 'Co-operative Business Corporations.' That part of the statute' declaring that the by-laws may provide for the number of votes to which each shareholder shall be entitled is omitted for the reason that it is special legislation, and probably unconstitutional within the decision in Krause v. Durbrow, 127 Cal. 681." 335 CO-OPERATIVE BUSINESS ASSOCIATIONS. § 653c TITLE XX. Co-operative Business Associations. § 653b. Formation and purposes of. § 653c. Eights, interests, and liabilities of members. § 653d. Articles of association. § 653e. By-laws. § 653f. Execution against the association or its members. § 653g. Purpose of the association, how may be altered. § 653h. Powers of the association. § 653ha. Method of calling meetings of unincorporated societies, etc. § 653i. Consolidation of associations. § 653j. Dissolution and winding up of association. § 653k. Quo warranto to inquire into the right of an association to do • business. § 653 1. What corporations or associations are not affected by this title. Legislation Title XX. Added by Stats. 1905, p. 594, and then con- tained § 653b-6531, all of these sections, except § 6531 being uncon- stitutional additions by the code commissioners in 1901. See post, tit. "Legislation," under the respective sections constituting the title. The code commissioner says in his note to §§ 653b-6531, "The statute of 1895, p. 221, is codified in the above sections, which are placed in a title designated 'Co-operative Business Associations.' " § 653b. Formation and purposes of. Five or more per- sons may form a co-operative association for the transaction of any lawful business, whether for profit or not, or for the promotion of any educational, industrial, benevolent, social, or political purpose. Such association must not have any capital stock, but must issue membership certificates to each member. Such certificate cannot be assigned, so that the assignee can, by its transfer, become a member of the association, but, by a resolution of its board of directors, such certificate may be transferred, and the transferee made a member in lieu of the last former holder. Legislation § 653b. 1. Addition by Stats. 1901, p. 387; unconstitu- tional: See note, § 4, ante. 2. Added by Stats. 1905, p. 595. See ante, Legislation Title XX. § 653c. Rig-hts, interests, and liabilities of members. In such association the rights and interests of all members are equal, and no member can have or acquire a greater interest therein than any other member has. At every election held pursuant to the by-laws each member must be entitled to cast one vote and no more. All persons above the age of eighteen years, regardless of sex, are eligible to membership, if other- wise qualified and elected as the by-laws may provide. The by-laws must provide for the amount of the indebtedness which such association may incur. And no member shall be § 653e CIVIL C()nE. 336 responsible individually, or personally liable, for any of the debts or liabilities of the association in excess of his propor- tion of such indel)tedness ; but in case of the failure and in- solvency of such association, may be required to pay any unpaid dues or installments which have, before such insol- vency, become due from such member to the association, pur- suant to its by-laws. Legislation § 653c. 1. Addition by Stats. 1901, p. 387; unconstitu- tional: See note, § 4, ante. 2. Added by Stats. 1905, p. 595. See ante, Legislation Title XX. i?- § 653d. Articles of association. Every association formed under this title must prepare articles of association, in writing, stating : The name of the association, the purpose for which it is formed, the place where its principal business is^to be transacted, the term for which it is to exist, not to exceed fifty years, the number of the directors thereof, and the names and residences of those selected for the first year, the amount- which each member is to pay upon admission as membership fee, and that each member signing the articles has actually paid in such sum, and that the interest and right of each mem- ber therein is to be equal. Such articles of association must be subscribed by the original associates or members, and ac- knowledged by each before some person competent to take an acknowledgment of a deed in this state. Such articles so subscribed and acknowledged must be ffled in the office of the clerk of the county wherein the principal business of the association is to be transacted, and a copy thereof certified by such clerk, with the secretary of state, who must thereupon issue his certificate in the form, and having the effect pre- scribed in section two hundred and ninety-six. Legislation § 653d. 1. Added by Stats. 1901, p. 388; unconstitu- tional. See note, § 4, ante. 2. Added by Stats. 1905, p. 595. See ante. Legislation Title XX. § 653e. By-laws. Every association formed under this title must, within forty days after it so becomes an association, adopt a code of by-laws for the government and management of the association, not inconsistent with this title. A majority of all the associates is necessary to the adoption of such by-laws, and the same must be written in a book, and sub- scribed by the members adopting the same, and the same can- not be amended or modified except by the vote of a majority of all the "members, after notice of the proposed amendment, given as the by-laws may provide. Such association may, by its by-laws, provide for the time, place, and manner of calling and conducting its meetings; the number of directors, the time of their election, their term of office, the mode and 653d. Articles of Association. Every association formed un- der this title must prepare articles of association, in writing stating: The name of the association, the purpose for which it is formed, the place where its principal business is to be trans- acted, the term for which it is to exist, not to exceed fifty years, ■ the number of the directors thereof, and the names and resi- dences of those selected for the first year, the amount which each member is to pay upon admission as membership fee, and that each member signing the articles has actually paid in such sum, and that the interest and right of each member therein is to be equal. Such articles of association must be subscribed by the original associates or members, and acknowledged by each before some person competent to take an acknowledgment of a deed in this state. Such articles so subscribed and acknowl- edged must be filed in the office [of the secretary of state, who shall] thereupon issue his certificate in the form, and having the effect prescribed in [said] section two hundred nlnety-slx[; provided, however, that no corporation shall be authorized to transact any business until it shall have filed in the office of the county clerk of the county in which its principal business Is to be transacted, a copy of its articles of incorporation certified by the secretary of state.] (In effect 90 days from and after April 29, 1921. Stats. 1921, Chap. 170.) Civ. Code, 1921. 337 CO-OPERATIVE BUSINESS ASSOCIATIONS. § 653e manner of their removal, the mode and manner of filling vacan- cies in the board cansed by death, resignation, removal, or otherwise, and the power and anthority of such directors, and how many thereof are necessary to the exercise of the powers of snch directors, which must he at least a majority; the compensation of any of the directors, or of any officer ; the number of the officers, if any, other than the directors, and their term of office ; the mode of removal, and the method of filling a vacancy ; the mode and manner of conducting busi- ness ; the mode and manner of conducting elections, and may provide for voting by ballots forwarded by mail or otherwise, provided the method secures the secrecy of the ballot; the mode and manner of succession of membership, and the quali- fications for membership, and on what conditions, and when membership must cease, and the mode and manner of expul- sion of a member, subject to the right of an expelled member to have the board of directors appraise his interest in the as- sociation in either money, property, or labor, as the directors may deem best, and to have the money, property, or labor so awarded him paid, or delivered, or performed within forty days after expulsion ; the amount of membership fee, and the dues, installments, or labor which each member must be re- quired to pay or perform, if any, and the manner of collection or enforcement, and for forfeiting or selling of membership interest for non-payment or non-performance; the method, time, and manner of permitting the withdrawal of a member, if at all, and how his interest must be ascertained, either in money or property, and within what time the same must be paid or delivered to such member ; the mode and manner of ascertaining the interest of a member at his death, if his legal . representatives or none of them desire to succeed to the mem- i bership, and whether the same must be paid to his legal repre- " sentatives in money, or property, or labor, and within what time the same must be paid, or delivered, or performed; such other things as may be proper to carry out the purpose for which the association was formed. The by-laws must provide for the time and manner in which profits must be divided among the members, and what proportion of the profits, if any, must be added to the common property or funds of the associa- tion. But the by-laws may provide that the directors may suspend or pass the payment of any such profit, or installment of earnings, at their discretion. The by-laws and all amend- ments must be recorded in a book and kept in the office of the association, and a copy, certified by the directors, must be filed in the office of the county clerk where the principal business is transacted. Civ. Code — 22 § 653h CIVIL CODE. 338 Legislation § 653e. 1. Addition by Stats. 1901, p. 388; unconstitu- tional. See' no'te, § 4, ante. 2. Added by Stats. 1905, p. 596. See ante, Legislation Title XX. § 653f. Execution against the association or its members. The property of such association is subject to attachment and execution for its lawful debts. The interest of a member in such association, if sold upon execution, or any judicial or gov- ernmental order whatever, cannot authorize the purchaser to have any right, except to succeed, as a member in the associa- tion, with the consent of the directors, to the rights of the member whose interest is thus sold. If the directors choose to pay or settle the matter after such sale, they may either cancel the membership, and add the interest thus sold to the assets or common property of the association, or reissue the share or right to a new member upon proper payment there- for, as the directors may determine. Legislation § 653f. 1. Addition by Stats. 1901, p. 389; unconstitu- tional. See no'te, § 4, ante. 2. Added by Stats, 1905, p. 597. See ante, Legislation Title XX. § 653g'. Purpose of the association, how may be altered. The purpose of the business may be altered, changed, modified, enlarged, or diminished by a vote of two thirds of all the mem- bers, at a special election to be called for such purpose, of which notice must be given the same as the by-laws provide for the election of directors. Legislation § 653g. 1. Addition by Stats. 1901, p. 389; unconstitu- tional. See' note, § 4, ante. 2. Added by Stats. 1905, p. 597. See ante', Legislation Title XX. § 653h. Powers of the association. Every association formed under this title has power of succession by its asso- ciate name for fifty years ; in such name to sue and be sued in any court; to make and use a common seal, and alter the same at pleasure ; to receive by gift, devise, or purchase, hold, and convey real and personal property, as the purposes of the association may require ; to appoint such subordinate agents or officers as the business may require ; to admit associates or members, and to sell or forfeit their interest in the associa- tion for default of installments, or dues, or work, or labor re- quired, as provided by the by-laws ; to enter into any and all lawful contracts or obligations essential to the transaction of its affairs, for the purpose for Avhich it was formed, and to borrow money, and issue all such notes, bills, or evidences of indebtedness or mortgage as its by-laws may provide for; to trade, barter, buy, sell, exchange, and to do all other things proper to be done for the purpose of carrying into effect the objects for which the association is formed. 653i. Consolidation of Associations. Two or more associa- tions formed and existing under this title, or under any pre- existing law authorizing their formation for the same purposes, may be consolidated, upon such terms, and for such purposes, and by such name, as may be agreed upon, in writing, signed by two-thirds of the members of each such association. Such agreement must also state all the matters necessary to articles of association, and must be acknowledged by the signers before an officer competent to take an acknowledgment of deeds in this state, and be filed [in ail respects In accordance with the provi- sions of section two hundred ninety-six of this code;] and from and after the filing of such certified copy the former associations comprising the component parts cease to exist, and the consoli- dated association succeeds to all the rights, duties and powers of the component as.sociations, and is possessed of all the rights, duties, and powers prescribed in the agreement of consolidated association not inconsistent with this title, and is subject to all the liabilities and obligations of the former component associa- tions, and succeeds to all the property and interests thereof, and may make by-laws and do all things permitted by this title. (In effect 90 days from and after April 29, 1921. Stats. 1021, Chap. 170.) Civ. Code, 1921. 339 CO-OPERATIVE BUSINESS ASSOCIATIONS. § 6531 Legislation § 653h. 1. Addition by Stats. 1901, p. 390; unconstitu- tional. See' note, § 4, ante. 2. Added by Stats 1905, p. 597. See ante, Legislation Title XX. §653ha. Method of calling- meetings of unincorporated societies, etc. In all cases where neither the constitution nor by-laws of an unincorporated society, organization or association fixes the manner of calling meetings of such unincorporated society, organization or association, or where the officer or officers, or person or persons whose duty it is under the said constitution or by-laws to call a meeting thereof fails, neglects and refuses to call such meeting, a meeting thereof may be called by twelve members thereof in the manner following : By signing a call for such meeting, in which call the time and place of such meeting shall be stated, and giving two wrecks' notice of such meeting by publication of such call in some newspaper of general cir- culation published in the county or city and county where the last preceding meeting of such society, organization or asso- ciation was held, or if no such newspaper is published in such county or city and county, then in a newspaper of general circulation published in an adjoining county; provided, how- ever, that in the event the by-laws of any such unincorporated society, organization, or association specify a particular method or manner of giving notice of a meeting, such provi- sion shall be followed, in addition to the method hereinabove provided, in a notice of any meeting given by said twelve members. Legislation § 6531ia. Added by Stats. 1915, p. 857. § 653i. Consolidation of associations. Tw o or more asso- ciations formed and existing under this title, or under any pre-existing law authorizing their formation for the same purposes, may be consolidated, upon such terms, and for such purposes, and by such name, as may be agreed upon, in writ- ing, signed by two thirds of the members of each such associa- tion. Such agreement must also state all the matters neces- sary to articles of association, and must be acknowledged by the signers before an officer competent to take an acknowledg- ment of deeds in this state, and be filed in the office of the county clerk of the county wherein the principal business of the association is to be transacted, and a certified copy thereof in the office of the secretary of state, and pay the same fees for filing and recording as required by this code for the filing and recording of the certified copy of the original articles of association; and from and after the filing of such certified copy, the former associations comprising the component parts cease to exist, and the consolidated association succeeds to all § 653k CIVIL CODE. 340 the rights, duties, and powers of the component associations, and is possessed of all the rights, duties, and powers pre- scribed in the agreement of consolidated association not in- consistent with this title, and is subject tcT all the liabilities and obligations of the former component associations, and succeeds to all the property and interests thereof, and may make by-laws and do all things permitted by this title. Legislation § 653i. 1. Addition by Stats. 1901, p. 390; unconstitu- tional. See" note, § 4, ante. 2, Added by Stats. 1905, p. 598. See ante, Legislation Title' XX. §653j. Dissolution and winding up of association. Any association formed or consolidated under this title may be dissolved and its affairs wound up voluntarily by the written request of two thirds of the members. Such request must be addressed to the directors, and must specify reasons why the Avinding up of the affairs of the association is deemed advis- able, and must name three persons who are members to act in liquidation and in winding up the affairs of the association, a majority of whom must thereupon have full power to do all things necessary to liquidation; and upon the filing of such request with the directors, and a copy thereof in the office of the county clerk of the county where the principal business is transacted, all power of the directors ceases and the persons appointed must proceed to wind up the association, and realize upon its assets, and pay its delfts, and divide the residue of its money among the members, share and share alike, within a time to be named in said written request, or such further time as may be granted them by two thirds of the members, in writ- ing, filed in the office of said county clerk; and upon the com- pletion of such liquidation the said association must be deemed dissolved. No receiver of any such association, or of any prop- erty thereof, or of any right therein, can be appointed by any court, upon the application of any member, save after judg- ment of dissolution for usurping franchises at the suit of the state of California by its attorney-general. Legislation § 653j. 1. Addition by Stats. 1901, p. 390; unconstitu- tional. See' no'te, § 4, ante. 2. Added by Stats. 1905, p. 598. See ante, Legislation Title XX. § 653k. Quo warranto to inquire into the right of an asso- ciation to do business. The right of any association claiming to be organized under this title to do business may be inquired into by quo warranto, at the suit of the attorney-general of this state, but not otherwise. Legislation § 653k. 1. Addition by Stats. 1901, p. 391; unconstitu- tional. See' note, § 4, ante. 2. Added by Stats. 1905, p. 599. See ante, Legislation Titl^ XX. 653n. Membership. Such association shall not [Issue] capital stock, [but shall Issue membership certificates to each member. Its] business shall not be carried on for profit. Any person or any number of persons, in addition to the original incorporators, may become members of such association, upon such terms and conditions as to membership and subject to such rules and regu- lations as to their, and each of their, contract, and other rights and liabilities between it and the member, as the said associa- tion shall provide in its by-laws. The association shall issue a certificate of membership to each member, but the said membership, or the said certificate thereof, shall not be assigned by a memljer to any other person, nor shall the assigns thereof be entitled to membership in the association, or to any property rights or interest therein. Nor shall a pur- chaser at execution sale, or any other person who may succeed, by operation of law or otherwise to the property interests of a member, be entitled to membership, or become a member of the association by virtue of such transfer. The board of directors may, however, by motion duly adopted by it, consent to such ■ assignment or transfer and to the acceptance of the assignee or transferee as a member of the association, but the association shall have the right, by its by-laws, to provide for or against the transfer of membership and for or against the assignment of membership certificates, and also the terms and conditions upon which any such transfer or assignment shall be allowed. (In effect 90 days from and after April 29, 1921. Stats. 1921, Chap. 341.) Civ. Code. 1921. 653iii. Formation and Putdospi nf ^u,-^^ tlo„ 3hl,, have a„a ^^reL^lr'fhl"'''"™- "" ="='' ''-~»- .i..e. ana .he PoweraTe'^eXr'.nc enTaTSeret'TlTd*'' h',?'' powers granted to private corporations hy the Taws of ,m1 , .'"' ■921, Chap. 3« ) "^^ '"" """ »""' April 29. 1J21. Stats. Civ. Code, 1921. 341 CO-OPERATIVE AGRICULTURAL ETC. ASSOCIATIONS § 653n" § 6531. What corporations or associations are not affected by this title. This title is not applicable to railroads, tele- graph, telephone, banking, insurance, building and loan, or any other corporation, unless the special provisions of this code, applicable thereto, are complied with. Legislation! 6531. Added by Stats. 1905, p. 599. See ante, Legisla- tion Title XX. TITLE XXT. Non-profit Co-operative Agricultural, Viticultural and Horti- cultural Associations. § 653m. Formation and purposes of. § 653n. Membership. § 653o. Articles of incorporation. § 653p. By-laws. § 653q. Powers of association. § 653r. Amendment of articles of incorporation. § 653s. Quo warranto. Legislation Title XXI. Added by Stats. 1909, p. 16, the title of the act reading, "An Act to amend an act entitled 'An Act to establish a Civil Code,' approved March 21, 1872, by adding thereto title XXT of part IV of division first of said act relating to and providing for the incorporation, organization, management, and co-operation of agricul- tural, viticultural and horticultural non-profit co-operative associa- tions." § 653m. Formation and purposes of. Three or more per- sons engaged in the production, preserving, drying, packing, shipping, or marketing of agricultural, viticultural or horti- cultural products, or all of them, may form a non-profit co- operative association under the provisions of this title, to carry on said business, and such association shall have, and may exercise, the powers authorized by this title, and the poAvers necessarily incidental thereto, and all other powers granted to private corporations by the laws of this state, except such powers as are inconsistent with those granted by this title. Legislation § 653m. Added by Stats. 1909, p. 16. § 653n. Membership. Such association shall not have a capital stock, and its business shall not be carried on for profit. Any person or any number of persons, in addition to the original incorporators, may become members of such asso- ciation, upon such terms and conditions as to membership, and subject to such rules and regulations as to their, and each of their, contract and other rights and liabilities between it and the member, as the said association shall provide in its by-laws. The association shall issue a certificate of member- ship to each member, ])ut the said membership, or the said certificate thereof, shall not be assigned by a member to any § 653o CIVIL CODE. 342 other person, nor shall the assigns thereof be entitled to mem- bership in the association, or to any property rights or interest therein. Nor shall a purchaser at execution sale, or any other person who may succeed, by operation of law or otherwise to the property interests of a member, be entitled to membership, or become a member of the association by Aurtue of such trans- fer. The board of directors may, however, by motion duly adopted by it, consent to such assignment or transfer and to the acceptance of the assignee or transferee as a member of the association, but the association shall have the right, by its by-laws, to provide for or against the transfer of membership and for or against the assignment of membership certificates, and also the terms and conditions upon which any such transfer or assignment shall be allowed. Legislation § 653rL Added by Stats. 1909, p. 17. § 653o. Articles of incorporation. Each association formed under this title must prepare and file articles of incorporation setting forth : 1. The name of the association. 2. The purpose for which it is formed. 3. The place where its principal business Avill be transacted. 4. The term for which it is to exist, not exceeding fifty years. 5. The number of directors thereof, which must not be less than three and which may be any number in excess thereof, and the names and residences of those selected for the first year and until their successors shall have been elected, and shall have accepted office. 6. Whether the voting power and the property rights and interest of each member shall be equal or unequal, and if un- equal the articles shall set forth a general rule or rules ap- plicable to all members by which the voting power and the property rights and interests, respectively, of each member may and shall be determined and fixed, but the association shall have power to admit new members who shall be entitled to vote and to share in the property of the association with the old members, in accordance Avith such general rule. This provision of the articles of incorporation shall not be altered, amended, or repealed except by the unanimous written consent or the vote of all of the members. 7. Said articles must be subscribed by the original members and acknowledged by one of them before an officer authorized by the law of this state, to take and certify acknowledg- ments of deeds of conveyance, and shall be filed in accordance with the provisions of section two hundred and ninety-six of this code, and when so filed the said articles of incorporation or certified copies thereof shall be received in all the courts of 653o. Articles of Incorporation. Each association formed un- der this title must prepare and file articles of incorporation setting forth: 1. The name of the association. 2. The purpose for which it is formed. 3. The place where its principal business will be transacted. 4. The term for which it is to exist, not exceeding fifty years. 5. The number of directors thereof, which must not be less than three and which may be any number in excess thereof, and the names and residences of those selected for the first year and until their successors shall have been elected, and shall have accepted office. 6. "Whether the voting power and the property rights and interest of each member shall be equal or unequal, and if unequal the articles shall set forth a general rule or rules applicable to all members by which the voting power and property rights and interests, respectively, of each member may and shall be deter- mined and fixed, but the association shall have power to admit new members who shall be entitled to vote and to share in the property of the association with the old members, in accordance with such general rule. This provision of the articles of incor- poration shall not be altered, amended, or repealed except by the unanimous written consent or the vote of all of the members. 7. Said articles must be subscribed by the original members and acknowledged by one of them before an officer authorized by the law of this state, to take and certify acknowledgments of deeds of conveyance. [Such articles so subscribed and acknowl- edged must be filed In the office of the secretary of state, who shall thereupon Issue his certificate In the form and having the effect prescribed in section two hundred ninety-six: provided, however, that no corporation shall be authorized to transact any business until it shall have filed in the office of the county clerk of the county in which its principal business is to be transacted, a copy of Its articles of Incorporation certified by the secretary of state. When! so filed, said articles of incorporation or certified copies thereof shall be received in all the courts of this state, and other places as prima facie evidence of the facts contained therein. (In effect 90 days from and after April 29, 1021. Stats. 1921, Chap. 170.) Civ. Code, 1921. Note: Enacted twice — as Stats. 1921, Chap. 170, and as Stats. 1921, Chap. 341. setting forth, "• "" Me articles of Incorporation 1. Th^ r»Qrv»« ■«,# x^^ 2 ^k! "!™^ ^^ *^^ association. iie nurpose for which it .-c * the names and residences of thol ""'"^^'' '" excess thereof and until their successors shaH have h '*1 '"'" *^^ "''^^t ^'-'"^ a^d accepted Office. ^" ^^^^ ''e^" elected, and shall have ;nttero?e::h'tn:h:;":,,^;'7;^j;;^'; the property ri.hts and the articles shall set forth a .enera nV"'" '""^ '"^ ""•'^-' all members by which the voUn^Z °'' """'^^ applicable to ^nd mterests. resnectivelv of "Lh l"*^ ^'^^ ^''^^'^'-tv rights determined and flved W tt "member may and shall hf adnjH new n,ember:'wh'o"ya'll bT'^^M-^r; Z^''" have' p^t" to^ in the property of +»,« entitled to vote and t« „i, accor,.„., -„h^.°:h'^ ncrrr^'fTh""" '"? "'^ '"-^- l" oMncorpora.lon shall not he a'tcrcd a^/;"^'"™ "" '"= "rtl'l.. ™.„rs°""""'°'" ""«" 'o-r,- ^r^r; ™"t7;rr r,r 17 Qj . , "-" or the ana a;^;owtd;S bTol'oVthtT^^^^^ *'^ -■-•-' -emben, the law of this state to t«l. I "" °^^er authorized bv <3eeds of conveyance, 'ap.^ X^, b^^fr''" ^^'^'^''-'ed^ment. of provisions of section two hundred « f '".-^ordance with the when .so filed the said article" of fn. '■'""' "*' *^'^' ^"-^e. and thereof shall be received n a,, j' '"""'•'^'>'-«t'-«n or certified copies Places as prim. faci. e.^d^nce of the'r ^ °' *'" ^^^^^- ^""^ o'^er •ffect 90 day. f.om and after Ip'n?/ /g^? ^T^"^'^ *'^'^^^'"- ^^^ April 29. 1921. Stat.s. 1921, Chap. 341 ) loJJ^'^^L ^"^'^^ed twice-as Stats iqsi f,u ^'^- ^ode. 1921. 1921. Chap. 341. "'''^''- "21. Chap. 170. and as Stats. eSSp. By-Laws. Each association incorporated under this Of byTatTf its*"''"*' '^"^ ^"^^ ''' incorporation, adopt ^ code with ti! , • ^"^^'•""^^"t and management not inconsistent assent of members representing: a majority of the votes, is necea^ sary to adopt such by-laws. The provisions of section hree hun- dred three and three hundred four of this code, which are not inconsistent With the provision, of this title, shall apply o thi by-laws of the corporations provided for in this title. Each asso! crafon may al.so. by its by-laws adopted, as aforesaid, provide for the followmg matters: p'uvme ror . !. ,'^«„"'^""^'' °^ removal of any one or more of its directors and for fillmg any and all vacancies in the board of directors 2. The number of directors and the number of members or votes thereof constituting a quorum. memoers or 3. The conditions upon which and the time when member- ner^ r^T"?'' '" '''' ^-ociation shall cea.e: the mode! man- the e.n.nf; ^^.^'^P"^^'^" ^' ^ '"-'"ber. subject to the ri^M of praise ^ '"""^'•*° ^^^" '''' ^°^^^ °f ''"•^^t^'-- ^<^"'t-b'y ap- praise his property interests in the association and to fix the amount thereof in money, and to have the money pa d to him withm sixty days after such expulsion. wi!; J^^ /^"'ount of membership fee. if any. and the amount «me t.'t "r'^'' "^"" ^^ ^"^"''•^'^ *° ^^y annually, or from and also ThV ""' '?■ ^'"^ °" ^'^ ^"^'"^^^^ "^ the associatlo" and also the compensation, if any. to be paid by each member for any services rendered by the a....ociation to him. and the time of payment and the manner of collecting the same, and for for- feiture of the interest of the member in the association for non- payment of the same. tinn Z^/f^'^'^Z.'^"^ Qualifications of members of the associa- tion and the cond.tion.s precedent to membership and the method v^in ^f r"""'- °' P^'-'"'"'"^ members to withdraw, and pro-' vidin^ for the assignment and transfer of the interest of members and the manner of determining the value of such interest and ziTz drth"' -r;'"^^ °^ ^^^^ '"^^^^^^^ ^- *^^ ^--^^tion upon the death withdrawal, or expulsion of a member or upon 6 pTrl^-n- ''•' T""'"""''"- "t *^^ «P*'°" ^' th- association, the cnnT7 ^^ members to vote hv their proxies, and determining the condition.s, manner, form and effect thereof. (In effect 90 days from and after April 29. 1921. Stats. 1921. Chap. 341.) Civ. Code, 1921. 343 CO-OPERATIVE AGRICULTURAL ETC. ASSOCIATIONS § 653p this state, and other places, as prima facie evidence of the facts contained therein. Legislation § 653o. Added by Stats. 1909, p. 17. § 653p. By-laws. Each association incorporated under this title must, Avithin thirty days after its incorporation, adopt a code of by-laws for its government and management not in- consistent with the provisions of this title. A majority vote of the members or the written assent of members representing a majority of the votes, is necessary to adopt such by-laws. The provisions of sections three hundred and three and three hundred and four of this code, which are not inconsistent with the provisions of this title, shall apply to the by-laws of the corporations provided for in this title. Each association may also, by its by-laws adopted as aforesaid, provide for the fol- lowing matters: 1. The manner of removal of any one or more of its directors and for filling any and all vacancies in the board of directors. 2. The number of directors and the number of members or votes thereof constituting a quorum. 3. The conditions upon which and the time when member- ship of any member in the association shall cease ; the mode, manner and effect of expulsion of a^ member, subject to the right of the expelled member to have the board of directors equitably appraise his property interests in the association and to fix the amount thereof in money, and to have the money paid to him within sixty days after such expulsion. 4. The amount of membership fee, if any, and the amount which each member shall be required to pay annually, or from time to time, if at all,- to carry on the business of the associa- tion, and also the compensation, if any, to be paid by each member for any services rendered by the association to him, and the time of payment and the manner of collecting the same, and for forfeiture of the interest of the member in the association for non-payment of the same. 5. The number and qualifications of members of the associa- tion and the conditions precedent to membership and the -method, time and manner of permitting members to withdraAv, and providing for the assignment and transfer of the interest of members, and the manner of determining the value of such interest and providing for the purchase of such interest by the association upon the death, withdrawal or expulsion of a mem- ber or upon the forfeiture of his membership, at the option of the association. 6. Permitting members to vote by their proxies, and deter- mining the conditions, manner, form and effect thereof. Legislation § 653p. Added by Stats. 1909, p. 18. § 653q CIVIL CODE. 344 § 653q. Powers of association. Each association incorpo rated under this title shall have the powers granted by the provisions of this code and other laws of California relating to private corporations, and shall also have the following powers : 1. To appoint snch agents and officers as its business ma>/ require, and such appointed agents may be either persons oif corporations ; to admit persons to memi)ership in the associa i tion, and to expel any member pursuant to the provisions of ita; by-laws ; to forfeit the membership of any member for viola, tion of any agreement between him and the association, or foi his violation, of its by-laws. 2. To purchase or otherwise acquire, hold, own, sell anc otherwise dispose of any and every kind or kinds of real ano personal property necessary to carry on its business, and ti-- acquire by purchase or otherwise the interest of any membe in the property of the association. 3. Upon the written assent or by a vote of members repres senting two thirds of the total votes of all members to co; operate with any other co-operative corporation or corpora tions for the co-operative and more economical carrying on o( their respective businesses, by consolidation as provided in seo tion six hundred and fifty-three i of this code, whereupon thi effect of such consolidation shall be the same as declared i. said section ; or upon resolution, adopted by its board of d:i rectors, to enter into all necessary and proper contracts aii' agreements, and to make all necessary and proper stipulation and arrangements with any other co-operative corporatio or corporations for the co-operative and more economic^: carrying on of its business, or any part or parts thereof; o any two or more co-operative corporations organized unde this title, upon resolutions, adopted by their respective board of directors, may, for the purpose of more economically carrj ing on their respective businesses, by agreement between then unite in employing and using, or several associations may sepe rately employ and use, the same methods, means and agenciei for carrying on and conducting their respective businesses. 4. Any association formed or consolidated under this tit! may be dissolved and its alfairs wound up voluntarily by th written request of members representing two thirds of th total votes, in the manner and with the effect provided in se< tion six hundred and lifty-three j of this code, except that thv. moneys remaining after liquidation shall be divided among the members in proportion to their property interests therein. Legislation § 653q. Added by Stats. 1909, p. 19. .nl^fL-is'-ria" h";;:""'"";^'^^^'^ ^^^^°^^^"°" incorporated of this code and other laws of cJ^ ■^"''''''^ ^^ *^^ Provisions Porations. and shall aLoTave the oHo"" ''""""^ *° ^"^^^6 cor- 1 To ar,T,r.,-„f 1^ following^ powers: r .ukWdTuc^h Jp^ inTe^l^er. ^^^^^h ^^ "^ ^"^'"^^ --— porations; to ad^ifp^e^soLfo n^ nTbL'shi: i^th'^ '^''■""^ ^'^ '^''^- to expel any member pursuant to ti^T association,, and to forfeit the membershTn nf Provisions of its by-laws; agreement betw^eTh^^^'anZ/./^^raUor off ^°'"'°" °^ ^^^ its by-laws. association, or for his violation of 2. To purchase or otherwise acnnire >,^i/i ^ Wise dispose of any and evefv ki. h , ^' "' ^^"' ^"'^ ^^her- Property. fincluding s'ock^'o h ' °' '"^' ^"'^ P"«°"«l convenient in the carrvL on f ^ f P^-"^*'""^'! necessary for to mortgage or Ve^T' anrprrpe^trre^^r:^'' 'e° 'T^ "^°"^^'- held by such association- to sec.re ^nvlT ""Y'""^'' "^"^^ or any bonds, debentures nmm. ^ contracts made by It, or it issued oV l^curr "oVZ."t°eTdTl^^^^ 7 ''''''' °'"'^^*'°"* '^ or otherwise the interest of any member n T""' ''' ^"^^'"^^ association. ^ member m the property of the sentin?two-?hirdTofThe'trJ ""^ ""' ^ ^°*^ °' "^^^^"^ -P- with any othe; co-operatile a?''' ^ "" "'"'"^ ^'^ co-operate co-operative and^;oT:^:rom^ clT^ ^inrorr'he""^' ^^^ ^'^^ "rrtr-'t^hr!^ r:r':srz - ~^-^^^-^'s:sz u iiity mree i of this code, whereupon the effect nf =„o^ solidation shall be the same as declared in Ld ?..t tlons may separately employ and use. the Sme methods means nesseT"""' '" ''"^^"" °" ^'^^ ^°"^-*'"^ ^^^^ respect!;e busi- th?s tttle"^ m\The"r f T'"' f^'^'^*'"^! o'' consolidated under enect 90 days from and after April 29. 1921. Stats. 1021. Chap. Civ. Code 1921. kK'^^ Amendment of Articles of Incorporation. Any corpo- fJnwhXer stock or membership, heretofore mcorporated ralion. J^^f ^^^^ ^f ,°;/; ^,„^^ f^,. the purpose of engaging m and H°^i -ire ir=-.«ra -n. r:ri 3. r ri,Te 15:. .0 the ri.ht of the «7='»"°\'° ^f"™' ^Z members. (In effect 90 days from and after ^Pri' ^29- J'^^ Stats. 1921. Chap. 341.) 653sc. [New.] Sale of Securities. No corporation now or hereafter incorporated under this title shall sell, or offer for sale, negotiate for the sale of, or take subscriptions for any security of Its own issue until it shall have first applied for and secured from the commissioner of corporations a permit authorizing it so to do and complied with all the terms and conditions of chapter 532, statutes 1917; as amended, chapter 148, statutes 1919 known as the corporate securities act. All the provisions of said corporate securities act are hereby made applicable to and bind- mg upon corporations incorporated under this title. (In effect 90 days from and after April 29, 1921. Stats. 1921, Chap. 341.) Civ. Code, 1921. 653sb. [New.] Powers of Co-operative Associations; Disposi- tion of Funds. Nothing- in this title shall be deemed to prohibit any co-operative association formed or existing hereunder from having and exercising the same powers in carrying out its purposes as are enjoyed or exercised by corporations which issue capital stock. Any association formed or existing under this title shall con- duct and carry on its business without profit to itself: it may, however, conduct its business for the profit of its members: it may use or employ any of its facilities for any purpose except the handling for others, not members, of products similar to the products handled for its members: provided, the proceeds arising from such use and employment shall go to reduce the cost of operation for its members. (In effect 90 days from and after April 29, 1921. Stats. 1921, Chap. 341.) Civ. Code, 1921. 653sa. [New.l Unequal Voting Power. In the event the arti- cles of incorporation shall provide for unequal voting power, the provisions of law with reference to a majority, a two-thirds, or other vote of the members shall not apply, and in lieu thereof there shall be substituted a majority or two-thirds of the votes of the interests represented by the several members, or otherwise, as the case may be. (In effect 90 days from and after April 29, 1921. Stats. 1921, Chap. 341.) Civ. Code 1921. to^S?'^.^?"" *"'';'"'° The Hsht of M association claiming 345 CO-OPERATIVE AGRICULTURAL ETC. ASSOCIATIONS § 653s § 653r. Amendment of articles of incorporation. Any cor- poration, whether stock or membership, heretofore incorpo- rated under the laws of this state for the purpose of engaging in and carrying on the business specified in section six hun- dred and fifty-three m of this title, the stockholders or mem- bers of which would be entitled to incorporate under the pro- visions of this title, may, by the unanimous written assent or vote of all the stockholders or members, amend its articles of incorporation to conform to the provisions of this title in the manner and with the effect provided in section three hundred and sixty-two of the Civil Code, and from the time of filing the amended articles, such corporation shall have the same powers as if it had originally incorporated under the provi- sions of this title ; provided, however, that the debts, obliga- tions, and other liabilities against such corporation or against the members or the stockholders thereof, existing at the time of such amendment, shall not be discharged or their collection or enforcement otherwise impaired ; and provided further that the respective property interests of the several stock- holders by virtue of their ownership of shares of stock therein, or the several members by virtue of their membership therein, and also the voting power of each of them, shall be determined and fixed by the amended articles of incorporation in accord- ance with the provisions of subdivision six of section six hun- dred and fifty-three o, but which rights shall be subject to the right of the association to admit new members. Legislation § 653r. Added by Stats. 1909, p. 19. § 653s. Quo warranto. The right of an association claim- ing to be organized and incorporated and carrying on its busi- ness under this title, to do and to continue its business, may be inquired into by ([uo warranto at the suit of the attorney- general, but not otherwise. Legislation § 653s. Added by Stats. 1909, p. 20. _, § 653u CIVIL CODE. • 346 TITLE XXII. Non-profit Co-operative Corporations. § 653t. Formation and purposes of. § 6o3u. Membership. § 653v. Articles of incorporation. § 653w. By-laws. § 653x. Powers of corporation. § 653y. Amendment of articles of incorporation. § 653z. Quo warranto. § 653za. Particular corporations. § 653zb. Voting. Legislation Title XXII. Added by Stats. 1909, p. 854, the title of the' act reading, "An Act to amend an act entitled 'An Act to estab- lish a Civil Code,' approved March 21, 1872, by adding thereto title XXII of part IV of division first of said act relating to and providing for the incorporation, organization, management, and co-operation of non-profit co-operative corporations." § 653t. Formation and purposes of. Non-profit co-opera- tive corporations may be formed by the voluntary association of any three or more persons in the manner prescribed in this title. A majority of such persons must be residents of this state, and such corporation shall have and may exercise the powers authorized by this title, and the powers necessarily incident thereto, and also all other powers granted to private corporations by the laws of this state, excepting such powers as are inconsistent Avith those granted by this title. Legislation § 653t. Added by Stats. 1909, p. 854. § 653u. Membership. Such corporation shall not have a capital stock, and its business shall not be carried on for profit. Any person or any number of persons including and in addi- tion to the original incorporators, may become members of such corporation upon such terms and conditions as to mem- bership, and subject to such rules and regulations as to their, and each of their, contract and other rights and liabilities between it and the member, as the said corporation shall pre- scribe in its by-laws. The corporation shall issue a certificate of membership to each member, but the said membership, or the said certificate thereof, shall not, except as herein pro- vided, be assigned by a member to any other person, nor shall the assigns thereof be entitled to membership in the corpora- tion, or to any property rights or interest therein, nor shall a purchaser at execution sale, or any other person who may succeed, by operation of law or otherwise, to the property interests of a member, be entitled to membership, or become a member of the corporation by virtue of such transfer. The „f Non-profit co-operativ „H purposes of. '^°"/^_„ociation of an from and after 653n. Membership. Such corporation shall [not issue] cap- ital stock, [but shall issue a membership certificate to each member. Its] business shall not be carried on for profit. Any person or any number of persons including and in addition to the original incorporators, may become members of such corpo- ration upon such terms and conditions as to [the] membership, and subject to such rules and regulations at to their, and each of their, contract and other rights and liabilities between it and the member, as the said corporation shall prescribe in its by-laws. The corporation shall issue a certificate of member- ship to each member, but the said membership, or the said cer- tificate thereof, shall not, except as herein provided, be assigned by [any] member to any other person, nor shall the assigns thereof be entitled to membership in the corporation, or to any property rights or interest therein, nor shall a purchaser at execution sale, or any other person who may succeed, by opera- tion of law or otherwise, to the property interests of [the] member, be entitled to membership, or become a member of the corporation by virtue of such transfer. The board of directors may, however, by motion duly adopted by it, con- sent to such assignment or transfer, and to the acceptance of the assignee or transferee as a member of the corporation. The corporation shall also "have the right, by its by-laws, to provide for or against the transfer of membership and for or against the assignment of membership certificates, and also the terms and conditions upon which any such transfer or assignment shall be allowed. (In effect 90 days from and after April 20, 1021. Stats. 1921, Chap. 342.) Civ. Code, 1921. 653v. Articles of Incorporation. Each corporation formed under this title must prepare and file articles of incorporation in writing setting forth: 1. The name of the corporation. 2. The purpose for which it is formed. 3. The place where its principal business will be transacted. 4. The term for which it is to exist, not exceeding fifty years. 5. The number of directors thereof, which must not be less than three and which may be any number in excess thereof, and the names and residences of those selected for the first year and until their successors have been elected, and shall have accepted office. 6. Whether the voting power and the property rights and interests of each member shall be equal or unequal, and if unequal the articles shall set forth a general rule or rules applicable to all members by which the voting power and the property rights and interests, respectively, of each member may and shall be determined and fixed, but the corporation shall have power to admit new members who shall be entitled to vote and to share in the property of the corporation with the old members, in accordance with such general rule. [This provision of the articles of incorporation shall not be altered, amended or repealed except by the unanimous written consent or the vote of all the members.] 7. Said articles of incorporation shall be subscribed by three or more of the original members, a majority of whom must be residents of this state, and acknowledged by each before some officer authorized to take and certify acknowledgments of con- veyances of real property, and shall be filed in all respects in accordance with the provisions of section two hundred ninety- six of this code, and thereupon the secretary of state shall issue to the corporation, over the great seal of the state, a cei- tiflcate that a copy of the articles containing the required state- ment of facts has been filed in his office, and thereupon the per- son signing the articles and their associates and successors shall be a body politic and corporate by the name stated in the cer- tificate. When so filed, the said articles of incorporation or certified copies thereof shall be received in all the courts of this state, and other places, as prima facie evidence of the facts contained therein. (In effect 90 days from and after April 29, 1921. Stats. 1921, Chap. 342.) Civ. Code, 1921. Note: Enacted twice— as Stats. 1921, Chap. 170, and as Stats. 1921, Chap. 342. 653v. Articles of Incorporation. Each corporation formed under this title must prepare and file articles of incorporation in writing setting forth: 1. The name of the corporation. 2. The purpose for which it is formed. 3. The place where its principal business will be transacted. 4. The term for which it is to exist, not exceeding fifty years. 5. The number of directors thereof, which must not be less than three and which may be any number in excess thereof, and the names and residences of those selected for the first year and until their successors shall have been elected, and shall have accepted office. 6. Whether the voting power and the property rights and interests of each member shall be equal or unequal, and if unequal the articles shall set forth a general rule or rules appli- cable to all members by which the voting power and the prop- erty rights and interests, respectively, of each member may and shall be determined and fixed, but the corporation shall have power to admit new members who shall be entitled to vote and to share in the property of the corporation with the old mem- bers, in accordance with such general rule. ,7. Said articles of incorporation shall be subscribed by three or more of the original members, a majority of whom must be residents of this state, and acknowledged by each before some officer authorized to take and certify acknowledgments of con- veyance or (of) real property. [Such articles so subscribed and acVcnowIedged must be filed in the office of the secretary of state who shall thereupon issue a certificate in the form and having the effect prescribed In section two hundred ninety-six; provided, however, that no corporation shall be authorized to transact any business until it shall have filed in the office of the county clerk of the county in which its principal business is to be transacted a copy of Its articles of incorporation certified by the secretary of state. When] so filed the said articles of incorpo- ration or certified copies thereof shall be received in all the courts of this state and other places as prima facie evidence of the facts contained therein. (In effect 90 days from and after April 29, 1921. Stats. 1921, Chap. 170.) ■ Civ. Code, 1921. Note: Enacted twice — as Stats. 1921, Chap. 170, and as Stats. 1921, Chap. 342. % 347 NON-PROFIT CO-OPERATIVE CORPORATIONS. § 653v board of directors may, however, by motion duly adopted by it, consent to such assignment or transfer, and to the accept- ance of the assignee or transferee as a member of the cor- poration. The corporation shall also have the right, by its by-laws, to provide for or against the transfer of membership and for or against the assignment of membership certificates, and also the terms and conditions upon which any such trans- fer or assignment shall be allowed. Legislation § 653u. Added by Stats. 1909, p. 854. § 653v. Articles of incorporation. Each corporation formed *^^ under this title must prepare and file articles of incorporation in writing setting forth : 1. The name of the corporation. 2. The purpose for which it is formed. 3. The place where its principal business will be transacted. 4. The term for Avhich it is to exist, not exceeding fifty years. 5. The number of directors thereof, which must not be less than three and which may be any number in excess thereof, and the names and residences of those selected for the first year and until their successors shall have been elected, and shall have accepted office. 6. Whether the voting power and the property rights and interest of each member shall be equal or unequal, and if unequal the articles shall set forth a general rule or rules ap- plicable to all members by which the voting power and the property rights and interests, respectively, of each member may and shall be determined and fixed, but the corporation shall have power to admit new members who shall be entitled to vote and to share in the property of the corporation with the old members, in accordance with such general rule. 7. Said articles of incorporation shall be subscribed by three or more of the original members, a majority of whom must be residents of this state, and acknowledged by each before some officer authorized to take and- certify acknowledgments of conveyances of real property, and shall be filed in all respects in accordance with the provisions of section two hundred and ninety-six of this code, and thereupon the secretary of state shall issue to the corporation, over the great seal of the state, a certificate that a copy of the articles containing the required statement of facts has been filed in the office, and thereupon the persons signing the articles and their associates and suc- cessors shall be a body politic and corporate by the name stated in the certificate. When so filed, the said articles of incorporation or certified copies thereof shall be received in § 653x CIVIL CODE. 348 all the courts of this state, and other places, as prima facie evidence of the facts contained therein. Legislation § 653v. Added by Stats. 1909, p. 855. § 653w. By-lav\^s. Each corporation incorporated under this title must, within one month after filing articles of incor- poration, adopt a code of by-laws for its government and man- agement not inconsistent with the provisions of this title. A majority vote of the members or the written assent of mem- bers representing a majority of the votes is necessary to adopt such by-laws. The provisions of section three hundred and three and three hundred and four of this code, which are not inconsistent Vvith the provisions of this title, shall apply to the by-laws of the corporation provided for in this title. Each corporation organized hereunder may also, by its by-laws adopted as aforesaid, provide for the following matters : 1. The manner of removal of any one or more of its directors and of filling any and all vacancies in the board of directors. 2: The conditions upon which and the time when member- ship of any member in the corporation shall cease ; the mode, manner and effect of expulsion of a member, subject to the right of the expelled member to have the board of directors equitably appraise his property interests in the corporation and to fix the amount thereof in money, and to have the money paid to him within sixty days after such expulsion. 3. The amount of membership fee, if any, and the amount which each member shall be required to pay annually, or from time to time, if at all, to carry on the business of the corpora- tion, and also the compensation, if any, to be paid by each member for any services rendered by the corporation to him, and the time of payment and the manner of collecting the ■ same, and may provide for forfeiture of the interest of the member in the corporation for non-payment of the same. 4. The number and qualifications of members of the cor- poration and the conditions precedent to membership and the method, time and manner of permitting members to withdraw, and providing for the assignment and transfer of the interest of members, and the manner of determining the value of such interest and providing for the purchase of such interest by the corporation upon the death, Avithdrawal or expulsion of a member or upon the forfeiture of his membership, at the option of the corporation. Legislation § 653w. Added by Stats. 1909, p. 855. § 653x. Powers of corporation. Each corporation incorpo- rated under this title shall have the powers granted by the provisions of this code and other laws of California, relating to 653iv. By-Laws. Each corporation incorporated under thi.s title must, within one month after filing articles of incorporation, adopt a code of by-}aws for its government and management not inconsistent with the provisions of this title. A majority [vote or] the written assent of members representing a majority of the votes is necessary to adopt such by-laws. The provisions of section three hundred three and three hundred four of this code, which are not inconsistent with the provisions of this title, shall apply to the by-laws of the corporation provided for in this title. Each corporation organized hereunder may also, by its by-laws adopted as aforesaid, provide for the following mat- ters: 1. The manner of removal of r ' one or more of its directors and of filling any and all vacanc' . in the board of directors. 2. The conditions upon which and the time when membership of any member in the corporation shall cease; the mode, manner and effect of expulsion of a member, subject to the right of the expelled member to have the board of directors equitably appraise his property interests in the corporation and to fix the amount thereof in money, and to have the money paid to him within sixty days after such expulsion. 3. The amount of membership fee, if any, and the amount which each member shall be required to pay annually, or from time to time, if at all, to carry on the business of the corpo- ration, and also the compensation, if any, to be paid by each member for any services rendered by the corporation to him, and the time of payment and the manner of collecting the same, and may provide for forfeiture of the interest of the member in the corporation for non-payment of the same. 4. The number and qualifications of members of the corpo- ration and the conditions precedent to membership and the method, time and manner of permitting members to withdraw, and providing for the assignment and transfer of the interest of members, and the manner of determining the value of such interest and providing for the purchase of such interest by the corporation upon the death, withdrawal or expulsion of a mem- ber or upon the forfeiture of his membership, at the option of the corporation. total votes in the manner and with the effect provided in sec- tion six hundred fifty-three j of this code, except that any prop- erty remaining after liquidation shall be divided among the mem- bers in proportion to their respective property interests therein. (In effect 90 days from and after April 29, 1921. Stats. 1921, Chap. 342.) Civ. Code, 1921. 653x. Powers of Corporation. Each corporation incoriK)rated under this title shall have the powers granted by the provisions of this code and other laws of California, relating to private corporations, which aie not inconsistent with those granted by this title, and shall also have the following powers: 1. To appoint such agents and officers as its business may require, and such appointed agents may be either persons or corporations; to admit persons and corporations to membership in the corporation, and to expel any member pursuant to the provisions of its by-laws; to forfeit the membership of any mem- ber for violation of any agreement between him and the corpo- ration or for his violation of its by-laws. 2. To purchase, lease or otherwise acquire, hold, own and enjoy, to sell, lease, mortgage and otherwise encumber and dis- pose of any and all and every kind or kinds or real and .personal property, [including stock in other corporations,] also to carry on any and all operations necessary or convenient in connection with the transaction of any of its business; [to borrow money; to mortgage or pledge any property real or personal, owned or held by such corporation; to secure any contracts made by it, or any bonds, debentures, promissory notes, or other obligations by It issued or incurred or guaranteed; and to acquire by purchase or otherwise, the interest of any member in the property of the corporation.] 3. Upon the written assent of two-thirds of all the members or by a vote of members representing two-thirds of the total votes of all members of each of two or more such non-profit co-opera- tive corporations to co-operate with each other for the more economical carrying on of their respective businesses by consoli- dation as provided in section six hundred fifty-three i of this code, such consolidation shall be effected, and thereupon the effect of such consolidation shall be the same as declared in said section. Any such corporation vipon resolution, adopted by its board of directors, shall have the power to enter into con- tracts and agreements, and to make stipulations and agreements with any other corporation or corporations, for the co-operative and more economical carrying on of its business, or any part or parts thereof; or any two or more co-operative corporations organized under this title, upon resolutions adopted by their respective boards of directors, may, for the purpose of more economically carrying on their respective businesses, by agree- ment, unite in adopting, employing and using, or several such corporations may separately adopt, employ and use the same methods, policy, means, agents, and [agencies for] carrying on and conducting their respective businesses. 4. Any corporation formed, existing or consolidated under this title may be dissolved, and its affairs wound up voluntarily by the written consent of members representing two-thirds of the 349 NON-PROFIT CO-OPERATIVE CORPORATIONS. § 653x private corporations, which are not inconsistent Avith those granted by this title, and shall also have the following powers : 1. To appoint such agents and officers as its business may re- quire, and such appointed agents may be either persons or cor- porations ; to admit persons and corporations to membership in the corporation, and to expel any member pursuant to the provisions of its by-laws ; to forfeit the membership of any member for violation of any agreement between him and the corporation or for his violation of its by-laws. 2. To purchase, lease or otherwise acquire, hold, own and enjoy, to sell, lease, mortgage and otherwise encumber and dispose of any and all and every kind or kinds of real and per- sonal property, also to carry on any and all operations neces- sary or convenient in connection with the transaction of any of its business. 3. Upon the written assent of two thirds of all the members or by a vote of members Y-epresenting two thirds of the total votes of all members of each of two or more such non-profit co-operative corporations to co-operate with each other for the more economical carrying on of their respective businesses by consolidation as provided in section six hundred and fifty- three i of this code, such consolidation shall be effected, and thereupon the effect of such consolidation shall be the same as declared in said section. Any such corporation upon resolution, adopted by its board of directors, shall have the power to enter into contracts and agreements, and to make stipulations and arrangements with any other corporation or corporations for the co-operative and more economical carrying on of its busi- ness, or any part or parts thereof ; or any two or more co-oper- ative corporations organized under this title, upon resolutions adopted by their respective boards of directors, may, for the purpose of more economically carrying on their respective businesses, by agreement, unite in adopting, employing and using, or several such corporations may separately adopt, em- ploy and use the same methods, policy, means, agents, agencies and terms of marketing for carrying on and conducting their respective businesses. 4. Any corporation formed or consolidated under this title may be dissolved, and its affairs wound up voluntarily by the written consent of members representing two thirds of the total votes, in the manner and with the eft'ect provided in sec- tion six hundred and fifty-three j of this code, except that any property remaining after liquidation shall be divided among" the members in proportion to their respective property inter- ests therein. Legislation § 653x. Added by Stats. 1909, p. 856. § 653zb CIVIL CODE. 350 \ u : § 653y. Amendment of articles of incorporation. Any such corporation may amend its articles of incorporation in any manner not inconsistent with the provisions of this title, in the manner provided for by section three hundred and sixty-two of the Civil Code of this state. Legislation § 653y. Added by Stats. 1909, p. 857. I w § 653z. Quo warranto. The right of a corporation claiming to be organized and incorporated and carrying on its business under this title, to do and to continue its business, may be in- quired into by quo warranto proceeding at the suit of the at- torney-general, but not otherwise. Begislation § 653z. Added by Stats. 1909, p. 857. § 653za. Particular corporations. This title is not appli- cable to railroads, telegraph, telephone, banking, insurance, building and loan, or any other corporation, unless the special provisions of this code applicable thereto are complied with. Legislation § 653za. Added by Stats. 1909, p. 857. § 653zb. Voting-. In the event the by-laws shall provide for unequal voting power, or unequal property rights of the sev- eral members, or both, the provisions of this title with refer- ence to a majority, a two-thirds, or other vote of the members, shall not apply, and in lieu thereof, there shall be substituted a majority, or a two thirds of the votes of the interests repre- sented by the several members, or otherwise as the case may be. Legislation § 653zb. Added by Stats. 1909, p. 857. ^^ ''' L^bzc . . nf Articles of incorporation. Any such 653y. Amendment ° ^rti^^^"^^^ ^^ incorporation in any man- corporation may amend ^^s articles o .^ ^^^ ^^^j^. ner not inconsistent -"h ^^^P^TSred sixty-two of the Civil ner provided for by section three ^^J^f^^^ J^^ ^j^er April 29. Code of this state. (In effect 90 days trom ^_^ ^^^^^ ^^^1. 1921. Stats. 1921, Chap. 342.) T^hP rieht of a corporation claiming to 653z. QUO warranto. J^\"^f ^^f^i^g on its business under be organized and incorporated and ^arjy^ g .^^^ .^,^ this title, to do [and -^^""^^/f^J^"/," of Se attorney general, by quo warranto P^°^/«^'"^^f gj'^davs fiom and after April 29. but not otherwise. (In effect 90 days ^.^ ^^^^^ ^321. 1921. Stats. 1921, Chap. 342.) 653za. Exemptions. This title is not applicable to railroads, telegraph, telephone, banking, insurance, building and loan, or any other corporation, unless the special provisions of this code applicable thereto are complied with. (In effect 90 days from and after April 29, 1921. Stats. 1921, Chap. 342.) Civ. Code, 1921 653zb. Voting. In the event the [articles of Incorporation! shall provide for unequal voting [power, the] provisions of [law] with reference to a majority, a two-thirds, or other vote of the members shall not apply, and in lieu thereof, there shall be sub- stituted a majority or two-thirds of the votes of the interests rep- resented by the several members, or otherwise, as the case may be. (In effect 90 days from and after April 29, 1921. Stats. 1921, Chap. 342.) Civ. Code, 1921. 653zc. [New.] Powers of Co-operative Corporations; Dis- position of Funds. Nothing in this title shall be deemed to pro- hibit any co-operative corporation formed or existing hereunder from having and exercising the same powers in carrying out_ its purposes as are enjoyed or exercised by corporations which issue capital stock. Any corporation formed or existing under this title shall con- duct and carry on its business without profit to itself; it may, however, conduct its business for the profit of its members; it may use or employ any of its facilities for any purpose except the handling for others, not members, of products similar to the products handled for its members, provided the proceeds arising from such use and employment shall go to reduce the cost of operation for its members. (In effect 90 days from and after April 29, 1921. Stats. 1921, Chap. 342.) Civ. Code, 1921. 653zd. [New.] Sale of Securities. No corporation now or hereafter incorporated under this ti^^^le shall sell, or offer for sale, negotiate for the sale of, or take subscriptions for arry security of its own issue until it shall have first applied for and secured from the commissioner of corporations a permit authorizing it so to do and complied with all the terms and conditions of chapter 532, statutes 1917; as amended, chapter 148, statutes 1919 known as the corporate securities act. All the provisions of said corporate securities act are hereby made appli- cable to and binding upon corporations incorporated under this title. (In effect 90 days from and after April 29, 1921. Stats. 1921, Chap. 342.) Civ. Code, 1921. DIVISION SECOND. Part I. Property in General. §§ 654r-749. II. Real or Immovable Property. §§ 755-940. III. Personal or Movable Property. §§ 946-995. IV. Acquisition of Property. §§ 1000-1426s. (351) § 655 CIVIL CODE. 352 PAET I. PROPERTY IN GENERAL. Title I. Nature of Property. §§ 654-663. II. Ownership. §§ 669-742. III. General Definitions. §§748, 749. TITLE I. Nature of Property. § 654. Property, what. § 655. In what property may exist. § 656. Wild animals. § 657. Real and personal. § 658. Eeal property. § 659. Land. § 660. Fixtures. § 661. Fixtures attached to mines. § 662. Appurtenances. § 663. Personal property. § 654. Property, what. The ownership of a thing is the right of one or more pei'sons to possess and use it to the exclu- sion of others. In this code, the thing of which there may be ownership is called property. As to meaning of "property," for purposes of taxation, see Pol. Code, § 3617. Eeal property: See post, § 658. Personal property: See post, §§ 663, 953 et seq. Franchises as property: See ante, § 388. Legislation § 654. Enacted March 21. 1872; based on Field's Draft, X. Y. Civ. Code, § 159. § 655. In what property may exist. There may be owner- ship of all inanimate things which are capable of appropriation or of manual delivery;. of all domestic animals; of all obliga- tions ; of such products of labor or skill as the composition of an author, the good-A\ill of a business, trade-marks and signs, and of rights created or granted by statute. Counterfeiting trade-niark, a misdemeanor: Pen. Code, § 350. Products of the mind: See post, §§ 9S0 et seq. Trade-marks: See post, § 991. Good-will: See post, § 993. Title deeds: See post. § 994. Domestic animals. Larceny of: See Pen. Code, §§ 487,491. Legislation § 655. Enacted March 21. 1872; based on Field's Draft, X. y. Civ. Code, § 160. 353 NATURE OP PROPERTY. § 661 § 656. Wild animals. Animals wild by nature are the sub- jects of ownership, while living, only when on the land of the person claiming them, or when tamed, or taken and held in possession, or disabled and immediately pursued. Legislation § 656. Enacted March 21, 1872; based on Field's Draft. K Y. Civ. Code, § 161. § 657. Real and personal. Property is either : 1. Real or immovable ; or, 2. Personal or movable. Legislation § 657. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 162. § 658. Real property. Real or immovable property con- sists of : 1. Land ; 2. That which is affixed to land ; 3. That which is incidental or appurtenant to land ; 4. That which is immovable by law. Land, defined: See post, § 659. Fixtures: See post, §§ 660 et seq. Appurtenances: See post, § 662. Legislation § 658. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 163. § 659. Land. Land is the solid material of the earth, what- ever may be the ingredients of which it is composed, whether soil, rock, or other substance. Legislation § 659. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 164. § 660. Fixtures. A thing is deemed to be affixed to land when it is attached to it by roots, as in the case of trees, vines, or shrubs ; or imbedded in it, as in the case of walls ; or perma- nently resting upon it, as in the case of buildings; or perma- nently attached to what is thus permanent, as by means of cement, plaster, nails, bolts, or screws. Fixtures, removal of by tenant: See post, § 1019. Legislation § 660. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 165. The code commissioners say: "By California and Nevada decisions this rule has been a little modified, so as to make the question of fixtures depend somewhat upon the intent or pur- poses of the party in erecting buildings for temporary use. It is thought best, however, to preserve the' common-law rules in terms as contained in this section." § 661. Fixtures attached to mines. Sluice-boxes, flumes, hose, pipes, railway tracks, cars, blacksmith-shops, mills, and all other machinery or tools used in working or developing a mine, are to be deemed affixed to the mine. Legislation § 661. Enacted March 21, 1872. Civ. Code — 23 § 670 CIVIL CODE. 354 § 662. Appurtenances. 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 Avay, or watercourse, or of a passage for light, air, or heat from or across the land of another. Easements and servitudes: See post, §§ 801 et seq. Legislation § 662. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 166. § 663. Personal property. Every kind of property that is not real is personal. . Personal property: See ante, § 14, subd. 3; Pol. Code, § 3617. Legislation § 663. Enacted Mareli 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 167. TITLE. 11. Ownership. Chapter I. Owners. §§ 669-672. II. Modifications of Ownership. Articles I-IV. §§ 678-726. III. Rights of Owners. §§ 732, 733. IV. Termination of Ownership. §§ 739-742. CHAPTER I. Owners. § 669. Owner. § 670. Property of the state. § 671. Who may own property. § 672. Aliens inheriting must claim within five years. §669, Owner. All property has an owner,, whether that owner is the state, and the property public, or the owner an individual, and the property private. The state may also hold property as a private j^roprietor. Legislation § 669. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 168. § 670. Property of the state. The state is the owner of all land below tide-Avater, and below ordinary high-water mark, bordering upon tide-Avater within the state ; of all land below the water of a navigable lake or stream ; of all property law- fully appropriated by it to its own use; of all property dedi- cated to the state ; and of all property of which there is no other owner. [Amendment approved 1874; Code Amdts. 1873-74, p. 217.] Property of the state. Pol. Code, §§ 40-44. Public lands: See Pol. Code, §§ 3395 et seq. Escheat: See post, §§ 1405, 1406. Legislation § 670. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 169), and then read: "The state is the owner of 355 NATURE OP PROPERTY. § 672 all land below high-water mark bordering upon tide-water; of all land below the water of a lake or stream which constitutes an exterior boundary of the' state; of all property lawfully appropriated by it to its own use; of all property dedicated to the state, and of all property of which there is no other owner." 2. Amended by Code Amdts. 1873-74, p. 217. § 671. Who may own property. Any person, whether citi- zen or alien, may take, hold, and dispose of property, real or personal, within this state. [Amendment approved 1874 ; Code Amdts. 1873-74, p. 218.] Aliens. Right to inherit property: See post, §§ 1404 et seq. Aliens. Control of property by: Const., art. i, § 17. •Alien land law: See Stats., 1913, p. 206; General Laws, Act 128. Legislation § 671. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 170; Const. 1849, art. i, § 17; Eamires v. Kent, 2 Cal. 558; Attorney-General v. Folsom, 5 Cal. 373; Sumssen v. Bofer, 6 Cal. 250; Norris v. Hoyt, 18 Cal. 217; Farrel v. Enright, 12 Cal. 450; State of California v. Rogers, 13 Cal. 159) and then read: "Any per- son, whether citizen or alien, may take and hold property, real or personal." 2. Amended by Code Amdts. 1873-74, p. 218. § 672. Aliens inheriting- must claim within five years. If a non-resident alien takes by succession, he must appear and claim the property within five years from the time of succes- sion, or be barred. The property in such case is disposed of as provided in title eight, part three. Code of Civil Procedure. Escheated estates: See Code Civ. Proc, §§ 1269-1272. Failure of alien to claim succession, and proceedings on: See post, §§ 1404-1407. Legislation § 672. 1. Enacted March 21, 1872; based on Stats. 1856, p. 137; People v. Rogers, 13 Cal. 159. 2. Repeal by Stats. 1901, p. 391; unconstitutional. See note, § 4, ante. § 680 CIVIL CODE. 356 CHAPTER II. Modifications of Ownership. Article I. Interests in Property. §§ 678-703. II. Conditions of Ownership. §§707-711. III. Eestraints upon Alienation. §§ 715-718. IV. Accumulations. §§ 722-726. AETICLE I. Interests in Property. § 678. Ownership, absohite or qualified. § 679. When absolute. § 680. When qualified. § 681. Several ownership, what. § 682. Ownership of several persons. § 683. Joint interest, what. § 684. Partnership interest, what. § 685. Interest in common, what. § 686. What interests are in common. § 687. Community property. § 688. Interests as to time. § 689. Present interest, what. § 690. Future interest, what. § 691. Perpetual interest, what. § 692. Limited interest, what. § 693. Kinds of future interests. § 694. Vested interests. § 695. Contingent interests. § 696. Two or more future interests. § 697. Certain future interests not to be void. § 698. Posthumous children. § 699. Qualities of expectant estates. § 700. Same. § 701. Interests in real property. § 702. Same. § 703. What future interests are recognized. § 678. Ownership, absolute or qualified. The ownership of property is either : 1. Absolute ; or, 2. Qualified. Legislation § 678. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 171. § 679. When absolute. The ownership of property is abso- lute when a single person has the absolute dominion over it, and may use it or dispose of it according to his pleasure, sub- ject only to general laws. Legislation § 679. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 172. The code commissioners say: "Thus the use of gunpowder is restricted by general laws, but its ownership may nevertheless be justly called absolute." § 680. When qualified. The ownership of property is quali- fied: 357 - INTERESTS IN PROPERTY. § 685 1. When it is shared with one or more persons; 2. "When the time of enjoyment is deferred or limited; 3. When the use is restricted. Legislation § 680. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 173. § 681. Several ownership, what. The ownership of prop- erty by a single person is designated as a sole or several ownership. Legislation § 681. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ Code, § 174. § 682. Ownership of several persons. The ownership of property by several persons is either : 1. Of joint interests; 2. Of partnership interests ; 3. Of interests in common ; 4. Of community interest of husband and wife. """ Legislation § 682. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 175. 2. Amendment by Stats. 1901, p. 391; unconstitutional. See' note, § 4, ante. § 683. Joint interest, what. A joint interest is one owned by several persons in equal shares, by a title created by a single will or transfer, when expressly declared in the will or trans- fer to be a joint tenancy, or when granted or devised to executors or trustees as joint tenants. Interests in common: See post, §§ 685, 686. Legislation § 683. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 176; Stats. 1855, p. 171, § 1; Dewey v. Lambier, 7 Cal. 347; Bowen v. May, 12 Cal. 351. The code commissioners say: "This provision is intended to confine the' right of survivorship to cases in which its creation was clearly intended." 2. Amendment by Stats. 1901, p. 391; unconstitutional. See note, § 4, ante. § 684. Partnership interest, what. A partnership interest is one owned by several persons, in partnership, for partnership purposes. Partnership: See post, §§ 2395 et seq. Legislation § 684. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code. § 177. § 685. Interest in common, what. An interest in common is one owned by several persons, not in joint ownership or partnership. Tenancy in common: See ante, § 683; post, § 686. Partition: See Code Civ. Proc, §§ 752 et seq. Husband and wife as tenants in common: Sec ante, § 161. Devise or legacy to two or more makes them owners in common: See post, § 1350. § 691 CIVIL CODE. 358 Legislation § 685. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 178. § 686. What interests are in common. Every interest created in favor of several persons in their own right is an interest in common, unless acquired by them in partnership, for partnership purposes, or unless declared in its creation to be a joint interest, as provided in section six hundred and eighty- three, or unless acquired as community property. Interests in common: See ante, §§ 683, 685. Legislation § 686. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 179; Stats. 1855, p. 171, § 1. 2. Amendment by Stats. 1901, p. 391; unconstitutional. See note, § 4, ante. § 687. Community property. Community property is prop- erty acquired by husband and wife, or either, during marriage, when not acquired as the separate property of either. Community property: See ante, § 164. Legislation § 687. Enacted March 21, 1872; based on Louisiana Civ. Code, art. ccxxxvii, p. 370. The code commissioners say: "The com- munity property consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact, or the produce of the reciprocal industry and labor of both hus- band and wife, and of the estates which they may acquire during the marriage, either by donations made jointly to them both, or by pur- chase, or in any other similar way, even although the purchase be' only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase." § 688. Interests as to time. In respect to the time of en- joyment, an interest in property is either: 1. Present or future ; and, 2. Perpetual or limited. Legislation § 688. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 180. § 689. Present interest, what. A present interest entitles the owner to the immediate possession of the property. Legislation, § 689, Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 181. § 690. Future interest, what, A future interest entitles the owner to the possession of the property only at a future period. Accumulations as future interests: See post, §§ 722 et seq., 733. Conditions upon enjoyment of estates: See post, §§ 707 et seq. Terminating future interests: See post, § 739 et seq. Legislation § 690. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 182. § 691. Perpetual interest, what. A perpetual interest has a duration equal to that of the property. 359 INTERESTS IN PROPERTY. § 698 Legislation § 691. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 183. § 692. Limited interest, what. A limited interest has a duration less than that of the property. Legislation § 692. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code', § 184. § 693. Kinds of future interests. A future interest is either : 1. Vested ; or, 2. Contingent. Legislation § 693. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 185. § 694. Vested interests. A future interest is vested when there is a person in being who would have a right, defeasible or indefeasible, to the immediate possession of the property, upon the ceasing of the intermediate or precedent interest. Legislation § 694. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 186. § 695. Conting-ent interests. A future interest is contingent, whilst the person in Avhom, or the event upon which, it is lim- ited to take effect remains uncertain. Legislation § 695. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 187. § 696. Two or more future interests. Two or more future interests may be created to take effect in the alternative, so that if the first in order fails to vest, the next in succession shall be substituted for it, and take effect accordingly. Legislation § 696. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code', § 188. § 697. Certain future interests not to be void. A future interest is not void merely because of the improbability of the contingency on which it is limited to take effect. Legislation § 697. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 189. § 698. Posthumous children. When a future interest is limited to successors, heirs, issue, or children, posthumous chil- dren are entitled to take in the same manner as if living at the death of their parent. Future interests defeated by birth of posthumous chUd: See post, §739. Succession by posthumous children: See post, §§ 1306, 1339, 1403. Legislation § 698. Enacted March 21, 1872; based on Field's Draft, JSr. Y. Civ. Code, § 190; Stats. 1855, p. 171, § 5. § 707 CIVIL CODE. 360 § 699. Qualities of expectant estates. Future interests pass by succession, will, and transfer, in the same manner as present interests. Legislation § 699. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 191. § 700. Same. A mere possibility, such as the expectancy of an heir apparent, is not to be deemed an interest of any kind. Legislation § 700. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code', § 192. § 701. Interests in real property. In respect to real or im- movable i)roperty, the interests mentioned in this chapter are denominated estates, and are specially named and classified in part two of this division. Legislation § 701 Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 193. § 702. Same. The names and classification of interests in real property have only such application to interests in per- sonal property as is in this division of the code expressly provided. Legislation § 702. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 194. 2. Amendment by Stats. 1901, p. 392; unconstitutional. See note, § 4, ante. § 703. What future interests are recognized. No future interest in proi^erty is recognized by the law, except such as is defined in this division of the code. Legislation § 703. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 195. 2. Ameudmeut by Stats. 1901, p. 392; unconstitutional. See note. § 4, ante. ARTICLE IT. Conditions of Ownership. § 707. Fixing the time of enjoyment. § 708. Conditions. § 709. Certain conditions precedent void. § 710. Conditions restraining marriage void. § 711. Conditions restraining alienation void. § 707. Fixing' the time of enjoyment. The time when the enjoyment of property is to begin or end may be determined by computation, or be made to depend on events. In the latter case, the enjciyment is said to be upon condition. Conditional legacies: See post, §§ 1345 et seq. Legislation §707. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 196. 715. How Long It May Be Suspended. [Except in the single case mentioned in section seven hundred seventy-two, the abso- lute power of alienation can not be suspended, by any limitation or condition whatever, for a longer period than as follows: [1. During the continuance of the lives of persons in being at the creation of the limitation or condition; or [2. For a period not to- exceed twenty-five years from the time of the creation of the suspension.] (In effect 90 day.s from and after April 27, 1917. Stata 1917, Chap. 539. Civ. Code, 1917. r n 361 RESTRAINTS UPON ALIENATION. § 715 § 708. Conditions. Conditions are precedent or subsequent. The former fix the beginning, the latter the ending, of the right. Conditional obligations: See post, §§ 1434-1442. conditional limitation. Remainder operating to abridge precedent estate: Post, § 778. Conditions precedent, what are: See post, §§ 1346, 1436. Conditions subsequent, what are: See post, §§ 1349, 1438. Conditions concurrent: See post, § 1437. Legislation §708. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 197. § 709. Certain conditions precedent void. If a condition precedent requires the performance of an act wrong of itself, the instrument containing it is so far void, and the right cannot exist. If it requires the performance of an act not wrong of itself, but otherwise unlawful, the instrument takes effect and the condition is void. Legislation § 709. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 198. 2. Amendment bj' Stats. 1901, p. 392; unconstitutional. See note, § 4, ante, § 710. Conditions restraining- marriage void. Conditions imposing restraints upon marriage, except upon the mp,rriage of a minor, are void ; but this does not affect limitations where the intent was not to forbid marriage, but only to give the use until marriage. [Amendment approved' 1874; Code Amdts. 1873-74, p. 218.] Contracts in restraint of marriage: See post, § 1676. Legislation § 710. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 199), and then e'nded with the words "are void." 2. Amended by Code Amdts. 1873-74, p. 218. § 711. Conditions restraining alienation void. Conditions restraining alienation, when repugnant to the interest created, are void. Restraints upon alienation: See post, §§ 715, 772; tit. IV, "Uses and ■ Trusts," post, §§ 847 et seq. Legislation § 711. Enacted March 21, 1872; based on Field's Draft, IN. Y. Civ. Code, § 200. ARTICLE III. Restraints upon Alienation. § 715. How long it may be suspended. § 716. Future interests void, which suspend power of alienation. § 717. Period of lease of land for agricultural purposes. § 718. Period of lease of city lots. Property of minor or incompetent. § 715. How long it may be suspended. The absolute power of alienation cannot })e suspended, ])y any limitation or condi- tion whatever, for a longer period than during the continu- ance of the lives of persons in being at the creation of the § 718 CIVIL CODE. - 362 limitation or condition, except in the single case mentioned in section seven hundred and seventy-two. Suspension by trust: See post, § 771. Legislation §715. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 201. § 716. Future interests void, which suspend power of aliena- tion. Every future interest is void in its creation which, by any possibility, may suspend the absolute power of alienation for a longer period than is prescribed in this chapter. Such power of alienation is suspended Avhen there are no persons in being by whom an absolute interest in possession can be conveyed. Legislation §716. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 202. § 717. Period of lease of land for agTicultural purposes. No lease or grant of land for agricultural or horticultural pur- poses for a longer period than fifteen years, in which shall be reserved any rent or service of any -kind, shall be valid ; pro- vided, that any land of- a municipality used for agricultural or horticultural purposes and upon which is discharged sewage or waste water may be leased for a period not exceeding twenty-five years. [Amendment approved 1915 ; Stats. 1915, p. 349.] Legislation § 717. 1. Enacted March 21, 1872 (based on Stats. 1851, p. 169, § 1; Field's Draft, N. Y. Civ. Code, § 203), and then read: "No lease or grant of agricultural land for a longer period than ten years, in which shall be reserved any rent or service of any kind, shall be valid." 2. Amended by Stats. 1895, p. 75, to read: "No lease or grant of land for agricultural purposes, for a longer period than ten years, in which shall be reserved any rent or service' of any kind, shall be valid." 3. Amended by Stats. 1909, p. 1000, to read: "No lease or grant of land for agricultural or horticultural purposes for a longer period than fifteen years, in which shall be reserved any rent or service of any kind, shall be valid." 4. Amended by Stats. 1915, p. 349. § 718. Period of lease of city lots. Property of minor or incompetent. No lease or grant of any town or city lot for a longer period than ninety-nine years, in M'hich shall be re- served any rent or service of any kind, shall be valid ; pro- vided, that the property of any municipality, or any minor or incompetent person, shall not be leased for a longer period than ten years, excepting that the sewer farm of a municipal- ity and all waters and sewage used or discharged thereon may be leased for a period not exceeding twenty-five years. [Amendment approved 1915; Stats. 1915, p. 349.] Legislation §718. 1. Enacted March 21, 1872 (based on Stats. 1851, p. 169, § 1; Field's Draft, N. Y. Civ. Code, § 203), and then read: "No ^•^ I ^*^- Prnrertv Of Minor or In- 71S. period of Lease °^ ^^'^^ ^^^f^/^own ^ city lot for a competent. No lease °'\ S-'f^^ /'^.^^^J -^ which shall he re- longer period than -"f^J'-^^^^S. hall be valid; provided, served any rent or sei-^'.ce ot ^m Jear9. excepting that tht. ^^''^ ^ ^ thereon may be leased waters and sewage used or f >^^ha^^^ ^.^^,,. ja^d excepting for a period not exceeding twent>-ly e ye • ^^ that the tidelands and submerged ^"^^^.^'^'^^ .^jacent to such the state, or any lands be.ongmg to s^^b c.ty J ^ ^^^ tidelands and submerged -^^'^^^^^^^^ Tue State of Ca.ifornia exceeding forty years if the ^^ant ^^^^ ^^^ p^^. of the use Of said tidelands -j'^^^^^^^^'ty,;,^ said iands may Vide specifically for a term of y^^^lH^ ,^^,3 3,^ lands ad- be leased. Said ^'^^'-^^/^.'./.^d Tor 'nd-*---' "^^^^ *'^ ''"'■• jacent thereto can only be ^l^^^^'°\ ^^ harbor of said c.ty. iose of improvement -^/^^^^.^.^^.U of wharves, docks, piers and the construction and --"^--^^^ ^^^ ,,, p,,poses con- or bull ^°"^®"'^ "lust be in writing consent of the other mnw !"""' "''''""" "^^y- ^^^hout th^ favor Of the other spou'e or of the'r''"r"'r^' ^-^-'^-n - testator, (m effect 90 Tv« f / "^^' descendants of the 1919, Chap. 6nT " ^"^ ^"''' ^P'"" -2- "19. Stats. Civ. Code, 1919. 447 EXECUTION AND REVOCATION OP WILLS. § 1273 § 1308. Share of after-born child, out of what part of estate to be paid. § 1309. Advancement during lifetime of testator. § 1310. Death of devisee, being relation of testator, in lifetime of testator, leaving lineal descendants. § 1311. Devises of land, how construed. § 1312. Will to pass rights acquired after the making thereof. § 1313. Kestrietion on devise for charitable uses. § 1270. Who may make a will. Every person over the age of eighteen years, of sound mind, may, by last will, dispose of all his estate, real and personal, and such estate not disposed of by will is succeeded to as provided in title seven of this part, being chargeable in both cases with the payment of all the decedent's debts, as provided in the Code of Civil Procedure. Wills of married women: See post, § 1273. Wills of unmarried women revoked by marriage: Post, § 1300. Effect of marriage of man on his will: See post, § 1299. Validity of will: See post, §§ 1276, 1376. Disposition of property in case of intestacy: See post, § 1384 et seq. Legislation § 1270. Enacted March 21. 1872; based on Stats. 1850, p. 177, § 1. § 1271. Monomaniac incompetent. [Repealed 1874, Code Admts. 1873-74, p. 232.] Legislation § 1271. 1. Enacted March 21, 1872. 2. Repealed by Code Amdts. 1873-74, p. 232. § 1272. Will, or part thereof, procured by fraud. A will, or part of a will, procured to be made by duress, menace, fraud, or undue influence, may be denied probate; and a revocation, procured by the same means, may be declared void. Contest of will: See Code Civ. Proc, § 1312. Undue influence as affecting contracts: See post, § 1575. Revocation of will: Post, § 1292. Contesting probate of will: Code Civ. Proc, §§ 1312 et seq. After probate: Code Civ. Proc, §§ 1327 et seq. Legislation § 1272. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 544. § 1273. Will of married woman. A married woman may dispose of all her separate estate by will, without the consent of her husband, and may alter or revoke the will in like man- ner as if she were single. Her will must be executed and proved in like manner as other Avills. [Amendment approved 1874; Code Amdts. 1873-74, p. 232.] Legislation § 1273. 1. Enacted March 21, 1872 (based on Stats. 1850, p. 177. §2; Stats. 1865-66. p. 317, § 1 ; Morrison v. Bowman, 29 Cal. 337), (1) the first sentence reading same as the amendment of 1873-74, (2) the second sentence reading, "Her will must be attested, witnessed, and proved in like manner as all other wills." 2. Amended by Code Amdts. 1873-74, p. 232. § 1276 CIVIL CODE. 448 § 1274. What may pass by will. Every estate and interest in real or personal property, to which heirs, husband, widow, or next of kin might succeed, may be disposed of by will, ex- cept as otherwise provided in sections fourteen hundred and one and fourteen hundred and two. Legislation § 1274. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, §545 (modified). § 1275. Who may take by will. A testamentary disposi- tion may be made to any person capable by law of taking the property so disposed of, except that corporations other than counties, numicipal corporations, and corporations formed for scientific, literary, or solely educational or hospital purposes, cannot take under a will, unless expressly authorized by stat- ute; subject, however, to the provisions of section thirteen hundred and thirteen. [Amendment approved 1905 ; Stats. 1905, p. 605.] Charitable uses, validity of: See post, §§ 1313 et seq.; ante, § 847. Legislation § 1275. 1. Enacted March 21, 1872 (based on Field's Draft, -N. Y. Civ. Code, § 546), and then read: "A testamentary dis- position may be made to any person capable by law of taking the property so disposed of, except that no corporation can take under a will, unless expressly authorized by statute so to take." 2. Amended by Code Amdts. 1873-74, p. 275, changing the exception to read, "except corporations other than those formed for scientific, literary, or solely educational purposes, cannot take under a will, un- less expressly authorized by statute." 3. Amendment by Stats. 1901, p. 402; unconstitutional. See note, § 4, ante. 4. Amended by Stats. 1903, p. 258. changing the exception to read, "except corporations other than those formed for scientific, literary, or solely educational or hospital purposes, cannot take under a will, unless expressly authorized by statute." 5. Amended by Stats. 1905, p. 605; the code commissioner saying, "The amendment in substance incorporates into the section the pro- visions of the act of 1881. page 2, authorizing the several counties, cities and counties, cities and towns of the state, to recover property by gift, bequest and devise." § 1276. Written will, how to be executed. Every will, other than a nuncupative will, must be in writing; and every will,, other than an olographic Avill, and a nuncupative will, must be executed and attested as follows : 1. It 'must be subscribed at the end thereof by the testator himself, or some person in his presence and by his direction must subscribe his name thereto ; 2. The subscription must be made in the presence of the attesting witnesses, or be acknoAvledged by the testator to them to have been made by him or by his authority ; 3. The testator must, at the time of subscribing or acknowl- edging the same, declare to the attesting witnesses that the instrument is his will ; and, 449 EXECUTION AND REVOCATION OF WILLS. § 1280 4. There must be two attesting witnesses, each of Avhom must sign the same as a witness, at the end of the will, at the testa- tor's request and in his presence. [Amendment approved 1905; Stats. 1905, p. 605.] Witness to add residence: See § 1278, infra. Olographic will: See post, § 1277. 'Conjoint or mutual will: See post, § 1279. Nuncupative will: See §§ 1288-1291. Execution of foreign will: See post, § 1285. Legislation § 1276. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 5-50; Stats. 1850, p. 177, § 3), the only differ- ence from the amendment of 1905 being in subd. 4, which had the words "must sign his name" instead of "must sign the same." 2. Amendment by Stats. 1901, p. 402; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1905, p. 605; the code commissioner saying, "The purpose of the amendment [changing "his name" to "the same," in subd. 4] is to avoid the strict construction given to subd. 4 in Estate of Walker, 110 Cal. 387." § 1277. Definition of an olographic will. 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 wit- nessed. May be proven in same manner as other private writings: Code Civ. Proc, § 1309. Legislation § 1277. Enacted March 21, 1872. § 1278. Witness to add residence. A witness to a written will must Avrite, with his name, his place of residence; and a person who subscribes the testator's name, by his direction, must write his OAvn name as a witness to the will. But a viola- tion of this section does not affect the validity of the will. Legislation § 1278. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 552. § 1279. Mutual will. A conjoint or mutual Avill is valid, but it may bo revoked by any of the testators, in like manner with any other Avill. Legislation § 1279. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 548. § 1280. Competency of subscribing witness. If the sub- scribing Avitnesscs to a Avill are competent at the time of attesting its execution, their subsequent incompetency, from whatever cause it may arise, does not prevent the probate and alloAvance of the Avill, if it is otherAvise satisfactorily proved. Legislation § 1280. Enacted March 21, 1872; based on Stats. 1850, p. 177, §4. Civ. Code^29 S J--O0 CIVIL CODE. 450 § 1281. Conditional will. A will, the validity of which is made by its own terms conditional, may be denied probate, according to the event, with reference to the condition. Conditional devises and 'beQuests: See post, §§ 1345 et seq. Legislation § 1281. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 549. § 1282. Gifts to subscribing vi^itnesses void. Creditors com- petent witnesses. All beneficial devises, legacies, and gifts whatever, made or given in any will to a subscribing witness thereto, are void, unless there are two other competent sub- scribing witnesses to the same ; but a mere charge on the estate of the testator for the payment of debts does not prevent his creditors from being competent witnesses to his will. Legislation § 1282. Enacted March 21, 1872; based on Stats. 1S50, p. 177, § 5. § 1283. Witness who is a devisee, and who would be en- titled to share of testator's estate if no will, entitled to share to amount of devise. If a witness, to whom any beneficial devise, legacy, or gift, void by the preceding section, is made, Avould have been entitled to any share of the estate of the testator, in case the will should not be established, he succeeds to so much of .the share as would be distributed to him, not exceeding the devise or bequest made to him in the will, and he may recover the same of the other devisees or legatees named in the Avill, in proportion to and out of the parts devised or bequeathed to them. [Amendment approved 1874; Code Amdts. 1873-74, p. 232.] • Legislation § 1283. 1. Enacted March 21, 1872 (based on Stats. 1850, p. 177, § 6), and then read: "If a witness, to whom any beneficial de- vise, legacy, or gift, is made or given, would have been entitled to an_y share of the estate of the testator, in case the will is not estab- lished, he succeeds to so much of the share as would be distributed to him, not exceeding the devise or bequest made to him in the will; and he may recover the same of the devisees or legatees named in the will, in proportion to and out of the parts devised or bequeathed to them." 2. Amended by Code Amdts. 1873-74, p. 232. § 1284. Will made out of this state. [Repealed 1874; Code Amdts. 1873-74, p. 232.] Legislation § 1284. 1. Enacted March 21, 1872. 2. Repealed by Code Amdts. 1873-74, p. 232. § 1285. Will made out of state. No will made out of this state is valid as a will in this state, unless executed according to the provisions of this chapter, except that a will made in a state or country in which the testator is domiciled at the time of his death, and valid as a will under the laws of such state 451 EXECUTION AND REVOCATION OF WILLS. § 1289 or country^, is valid in this state so far as the same relates to personal property, subject, however, to the provisions of sec- tion thirteen hundred and thirteen. [Amendment approved 1905; Stats. 1905, p. 606.] Law governing: See post, § 1376. Probate of foreign wills: Code Civ. Proc, § 1322. Legislation § 1285. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 555), and then read: "No will or revocation is valid unless executed either according to the provisions of this chapter, or according to the law of the place in which it was made, or in which the testator was at the time domiciled." 2. Amended by Code Amdts. 1873-74, p. 232, to read: "No will made out of this state is valid as a will in this state, unless executed accord- ing to the provisions of this chapter." 3. Amendment by Stats. 1901, p. 402; unconstitutional. See note, § 4, ante. 4. Amended by Stats. 1905, p. 606, adding the exception; the code commissioner saying of the addition, "the purpose being merely to state what has always been understood to be the rule in this state respecting bequests of personal property, viz.: that it may be be- queathed in accordance with the law of the testator's domicile." §1286. Subsequent change of domicile. [Repealed 1874; Code Amdts. 1873-74, p. 232.] Legislation § 1286. 1. Enacted March 21, 1872. 2. Eepealed by Code Amdts. 1873-74, p. 232. § 1287. Republication by codicil. The execution of a cod- icil, referring to a previous will, has the effect to republish the will, as modified by the codicil. Legislation § 1287. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, §553; Payne v. Payne, 18 Cal. 291. § 1288. Nuncupative will, how to be executed. A nun- cupative will is not required to be in writing, nor to de declared or attested Avith any formalities. How admitted to probate: Code Civ. Proc, § 1344. Probating nuncupative wills: See post, §§ 1290, 1291. Legislation § 1288. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 351. § 1289. Requisites of a valid nuncupative will. To make a nuncupative will valid, and to entitle it to be admitted to pro- bate, the following requisites must be observed: One. The estate bequeathed must not exceed in value the sum of one thousand dollars. Two. Tt must be proved by two witnesses who were present at the making thereof, one of v/hom was asked by the testator, at the time, to bear witness that such was his will, or to that effect. Three. The decedent must, at the time, have been in actual military service in the field, or doing duty on shipboard at sea, § 1303 CIVIL CODE. 454 § 1299. Effect of marriage of a man on his will. If, after making a Avill, the testator marries, and the wife survives the testator, the will is revoked, unless provision has been made for her by marriage contract, or unless she is provided for in the. will, or in such way mentioned therein as to shoAv an in- tention not to make such provision ; and no other evidence to rebut the i^resuinption of revocation must be received. Legislation § 1299. Enacted March 21, 1872; based on Stats. 1850, p. 178, § 12. § 1300. Effect of a marriage of a w^oman on her will. A will, executed by a woman, is revoked by her subsequent mar- riage, and is not revived by the death of her husband. [Amendment approved 1905; Stats. 1905, p. 606.] Legislation § 1300. 1. Enacted March 21, 1872 (based on Stats. 1850, p. 178, § 13), and then read: "A will, executed by an unmarried woman, is revoked by her subsequent marriage, and is not revived by the death of her husband." 2. Amendment by Stats.. 1901, p. 402; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1905, p. 606; the code commissioner saying, "The purpose of the amendment is to apply the same rule to wills executed by married and unmarried women with respect to the revo- cation by subsequent marriage." § 1301, Contract of sale not a revocation. An agreement made by a testator, for the sale or transfer of property dis- posed of by a will previously made, does not revoke such dis- posal; but the property passes by the will, subject to the same remedies on the testator's agreement, for a specific perform- ance or otherwise against the devisees or legatees, as might be had against the testator's successors, if the same had passed by succession. Legislation § 1301. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 5G9; Stats. 1850, p. 178, § 14. § 1302. Mortgage not a revocation of will. A charge or encumbrance upon any estate, for the purpose of securing the payment of money or the performance of any covenant or agreement, is not a revocation of any will relating to the same estate which was previously executed ; but the devise and legacies therein contained must pass, subject to such charge or encumbrance. Legislation § 1302. Enacted March 21, 1872; based on Stats. 1850. p. 178, § 15. § 1303. Conveyance, when not a revocation. A conveyance, settlement, or other act of a testator, by which his interest in a thing previously disposed of by his will is altered, but not wholly divested, is not a revocation ; but the will passes the property which would otherwise devolve by succession. 1300. Effect of Marriage of a Woman on Her Will. [ after making a will, the testatrix marries, and the husband si vives the testatrix, the will is revoked, unless provision h been made for him by marriage contract, or unless he is pi vided for in the will, or in such way mentioned therein as show an intention not to make such provision; and no oth evidence to rebut the presumption of revocation can be receivei (In effect 1>0 days from and after April 22, 1919. Stats. 19 Chap. 595.) Civ. Code, 19 . woman s vv ^.^x w^ Revocation f ^nU. ^"^^ ^^ her 1 Uer, tne settle' ^.g^y w ^^^ no ^^.gce •'--. ^tue -"^- «^- "aie -en P^--";e;ocatiou can ^e^^^^ for 11^ ^ not to tna^'= ^cU r^ -^qij. f-gde, Chap. 5SS-^ \ 455 EXECUTION AND REVOCATION OF WILLS. § 1307 Revocation: See post, §§ 1304, 1305. Ademption of legacies: See post, § 1351. Legislation § 1303. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 571. § 1304. When it is a revocation. 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 in- consistent with the terms and nature of the testamentary dis- position, it operates as a revocation thereof, unless such in- consistent provisions depend on a condition or contingency by reason of which they do not take effect. Legislation § 1304. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 572. § 1305. Revocation of codicils. The revocation of a will revokes all its codicils. Legislation § 1305. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 573. § 1306. After-born child, unprovided for, to succeed. "Whenever a testator has a child born after the making of his will, either in his lifetime or after his death, and dies leaving such child unprovided for by any settlement, and neither pro- vided 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 testator had died intestate. But such succession does not impair or affect the validity of any sale of property made by authority of such will in accordance with the provisions of section fifteen hun- dred and sixty-one of the Code of Civil Procedure. [Amend- ment approved 1905 ; Stats. 1905, p. 606.^ Succession by posthumous children: See ante, § 698; post, §§ 1339, 1403. Legislation § 1306. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 574; Stats. 1850, p. 178, § 16), the section then containing only the first sentence of the amendment of 1905. 2. Amendment by Stats. 1901, p. 402; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1905, p. 606; the code commissioner saying, "The change consists in the addition of the last sentence, and is in- tended to change the rule of Smith v. Olmstead, 83 Cal. 582." § 1307. Children or issue of children of testator unprovided for by his v^ill. When any testator omits to provide in his will for any of his children, or for the issue of any deceased child, unless it appears that such omission was intentional, such child, or the issue of such child, has the same share in the estate of the testator as if he had died intestate, and succeeds thereto as provided in the preceding section. But such sue- § 1310 CIVIL CODE. 456 cession does not impair or affect the validity of any sale of property made by authority of such will in accordance with the provisions of section fifteen hundred and sixty-one of the Code of Civil Procedure. [Amendment approved 1905 ; Stats. 1905, p. 606.] Legislation § 1307. 1. Enacted March 21, 1872 (based on Stats. 1850, p. 178, § 17), and then read: "When any testator omits to provide in his will for any of his children, or for the issue of any deceased child, unless it appears that such omission was intentional, such child, or the issue of such child, must have the same share in the estate of the testator as if he had died intestate, and succeeds thereto as provided in the preceding section." 2. Amendment by Stats. 1901, p. 403; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1905, p. 606. See ante, Legislation § 1306, for code commissioner's note. § 1308. Share of after-born child, out of vvrhat part of estate to be paid. When any share of the estate of a testator is assigned to a child born after the making of a will, or to a child, or the issue of a child, omitted in the will, as hereinbe- fore 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 tes- tator 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, con- sistent with the intention of the testator, may be adopted. Legislation § 1308. Enacted March 21. 1872; based on Stats. 1850, p. 178, § IS. § 1309. Advancement during lifetime of testator. If such children, or their descendants, so unprovided for, had an equal proportion of the testator's estate bestowed on them in the testator's lifetime, by way of advancement, they take nothing in virtue of the provisions of the three preceding sections. Advancements. Question of, when raised: See Code Civ. Proc, § 1686. Advancements in cases of intestacy: See post, §§ 1395-1399. Legislation § 1309. Enacted March 21, 1872; based on Stats. 1850, p. 179, § 19. § 1310. Death of devisee, being' relation of testator, in life- time of testator, leaving lineal descendants. When any estate is devised or bequeathed to any child, or other relation of the testator, and the devisee or legatee dies before the testator, leaving lineal descendants, such descendants take the estate 1310. Death of Devisee, Being Relation of Testator, in Life- time of Testator, Leaving Lineal Descendants. "When any estate is devised or bequeathed to any child or other relation of the testator, and the devisee or legatee dies before the testator, leaving lineal descendants, [or any such child or other relation Is named In a will as a devisee or legatee and Is dead at the time the will is executed, but leaves lineal descendants surviving the testator,] such descendants take the estate so given by the will in the same manner as the devisee or legatee would have done had he survived the testator. (In effect 90 days from and after April 29, 1921. Stats. 1921, Chap. 116.) Civ. Code, 1921. 1313. Restriction on devises or bequests for charitable uses. Xo estate, real or personal, shall he bequeathed or devised to any charitable or benevolent society or corporation, or to any person or persons in trust for charitable uses, except the same be done by will duly executed at least thirty days before the decease of the testator; and if so made at least thirty days prior to such death, such devise or legacy and each of them shall be valid; provided, that no such devise or bequest shall collectively exceed one-third of the estate of the testator, leaving legal heirs, and in such case a pro rata deduction from snjch devises or bequests shall be made so as to reduce the aggregate thereof to one-third of such estate; and all dispositions of property made contrary hereto shall be' void, and go to the residuary legatee or devisee, next of kin, or heirs, according to law; and provided, further, that bequests and devises to the state, or to any state institution, or for the usie or benefit of the state or any state institution, [or to any educational institution which Is exempt from taxation under section one a of article thirteen of the constitution of the State of California, or for the use or benefit of any such educational Institution,! are excepted from the restrictions of this section; I provided, however, that nothing in this section contained shall apply to bequests or devises made by will executed at least six months prior to the death of a testator who leaves no parent, husband, wife, child or grandchild, or when all of such heirs shall have by writing, executed at least six months prior to his death, waived the restrictions contained herelnl. (In effect 90 days from and after April 22, 1919. Stats. 1919, 222.) Civil Code, 1919. 1313. Restriction on Devises or Bequests for Charitable Uses. No estate, real or personal, shall be bequeathed or devised to any charitable or benevolent society or corporation, or to any person or persons in trust for charitable uses, except the same be done by will duly executed at least thirty days before the deceasre of the testator; and if so made at least thiity days prior to such death, such devise or legacy and each of them shall be valid; provided, that no such [devise or bequest] shall collectively exceed one-third of the estate of the testator, leav- ing legal heirs, and in such case a pro rata deduction from such devises or bequests shall be made so as to reduce the aggre- gate thereof to one-third of such estate; and all dispositions of property made contrai-y hereto shall be void, and go to the residuary legatee or devisee, next of kin, or heirs, according to law[; and provided further, that bequests and devises to the state, or to any state institution, or for the use or benefit of the state or any state Institution, are excepted from the re- strictions of this section]. (In effect 90 days from and after April 27, 1017. Stats. 1917, Chap. 179.) Civ. Code, 1917. 457 EXECUTION AND REVOCATION OF WILLS. § 1313 SO given by the will, in the same manner as the devisee or legatee would have done had he survived the testator. [Amendment approved 1905; Stats. 1905, p. 150.] "By right of representation." Term defined: Post, § 1403. Death of legatee. Legacy fails when: See post, §§ 1343, 1344. Legislation § 1310. 1. Enacted March 21, 1872 (based on Stats. 1850, p. 17&, § 20), and then read: "When any estate is devised to any child, or other relation of the testator, and the devisee dies before the testator, 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." 2. Amended by Stats. 1905, p. 150. § 1311. Devises of land, how construed. 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. Conveyance, effect of: See ante, §§ 1303, 1304. What passes by devise: See post, § 1329. Legislation § 1311. Enacted March 21, 1872; based on Stats. 1850, p. 179, § 21. § 1312. Will to pass rights acquired after the making- thereof. Any estate, right, or interest in lands acquired by the testator after the making of his will, passes thereby and in like manner as if title thereto was vested in him at the time of making the will, unless the contrary manifestly appears by the will to have been the intention of the testator. Every will made in express terms, devising, or in any other terms denot- ing the intent of the testator to devise all the real estate of such testator, passes all the real estate which such testator was entitled to devise at the time of his decease. [Amendment approved 1874; Code Amdts. 1873-74, p. 233.] Testamentary dispositions vest at testator's death: Post, § 1341. Legislation § 1312. 1. Enacted March 21, 1872 (based on Stats. 1850, p. 179, §22; Stats. 1865-66, p. 381, § 1), and differed from the amend- ment of 187.3-74, in having, in the first sentence, the words "if it" instead of "unless the contrary." 2. Amended by Code Amdts. 1873-74, p. 233. § 1313. Restriction on devise for charitable uses. No es- tate, real or personal, shall be bequeathed or devised to any charitable or benevolent society or corporation, or to any per- son or persons in trust for charitable uses, except the same be done by will duly executed at least thirty days before the decease of the testator; and if so made, at least thirty days prior to such death such devise or legacy and each of them shall be valid ; provided, that no such devises or bequests shall collectively exceed one third of the estate of the testator, leaving legal heirs, and in such case a pro rata deduction from § 1317 crv'iL CODE. 458 such devises or bequests shall be made so as to reduce the aggregate thereof to one third of such estate ; and all disposi- tions of property made contrary hereto shall be void, and go to the residuary legatee or devisee, next of kin, or heirs, ac- cording to law. CharitaWe uses permitted iDy the codes: See ante, §§ 847 et seq. Legislation § 1313. Added by Code Anidts. 1873-74, p. 275. CHAPTER II. Interpretation of Wills, and Effect of Various Provisions. § 1317. Testator's intention to be carried out. § 1318. Intention to be ascertained from the will. § 1319. Eules of interpretation. § 1320. Several instruments are to be taken together. § 1321. Harmonizing various parts. § 1322. In what case devise not affected. § 1323. When ambiguous or doubtful. § 1324. Words taken in ordinary sense. § 1325. Words to receive an operative construction. § 1326. Intestacy to be avoided. § 1327. Effect of technical words. § 1328. Technical words not necessary. § 1329. Certain words not necessary to pass a fee. § 1330. Power to devise, how executed by terms of will. § 1331. Devise or bequest of all real or all personal property, or both. § 1332. Eesiduary clause. § 1333. Same. § 1334. "Heirs," "relatives," "issue," "descendants," etc. § 1335. Words of donation and of limitation. § 1336. To what time words refer. § 1337. Devise or bequest to a class. § 1338. When conversion takes effect. § 133&. When child born after testator's death takes under will. § 1340. Mistakes and omissions. § 1341. When devises and bequests vest. § 1342. When cannot be divested. § 1343. Death of devisee or legatee. § 1344. Interests in remainder are not affected. § 1345. Conditional devises and bequests. § 1346. Condition precedent, what. § 1347. Effect of condition precedent. § 1348. Conditions precedent, when deemed performed. § 1349. Conditions subsequent, what. § 1350. Devisees, etc., take as tenants in common. § 1351. Advancements, when ademptions. § 1317. Testator's intention to be carried out. A will is to be construed according to the intention of the testator. Where his intention cannot have effect to its full extent, it must have effect as far as possible. Construction of will made before code went into effect not affected by code: Post, § 1375. Construction of foreign will: Post, § 1376. 459 INTERPRETATION OP WILLS, ETC. § 1324 Declarations of testator as evidence: See post, § 1318. Intention of testator: See post, § 1370. Legislation § 1317. Enacted March 21, 1872; based on Kidwell v. Brummagim, 32 Cal. 436. § 1318. Intention to be ascertained from the will. In case of uncertainty arising upon the face of a will, as to the appli- cation of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking into view the circumstances under which it was made, exclusive of his oral declarations. Testator's declarations: See post, § 1340. Evidence of intention: See post, § 1340. Legislation § 1318. Enacted March 21, 1872. § 1319. Rules of interpretation. In interpreting a will, sub- ject to the law of this state, the rules prescribed by the follow- ing sections of this chapter are to be observed, unless an in- tention to the contrary clearly appears. Legislation § 1319. Enacted March 21, 1872. § 1320. Several instruments are to be taken tog^ether. Sev- eral testamentary instruments, executed by the same testator, are to be taken and construed together as one instrument. Legislation § 1320. Enacted March 21, 1872. § 1321. Harmonizing' various parts. All the parts of a will are to be construed in relation to each other, and so as, if possible, to form one consistent whole ; but where several parts are absolutely irreconcilable, the latter must prevail. Legislation § 1321. Enacted March 21, 1872. § 1322. In what case devise not affected. A clear and dis- tinct devise or bequest cannot be affected by any reasons assigned therefor, or by any other words not equally clear and distinct, or by inference or argument from other parts of the Avill, or by an inaccurate recital of or reference to its contents in another part of the will. Intention of testator: See ante, §§ 1317 et seq. Legislation § 1322. Enacted March 21, 1872. § 1323. When ambiguous or doubtful. Where the meaning of any part of a Avill is ambiguous or doubtful, it may be ex- plained by any refei'cnce thereto, or recital thereof, in another part of the Avill. Legislation § 1323. Enacted March 21, 1872. § 1324. Words taken in ordinary sense. The words of a will are to be taken in their ordinary and grammatical sense, § 1330 CIVIL CODE. 460 unless a clear intention to use them in another sense can be collected, and that other can be ascertained. Legislation § 1324. Enacted March 21, 1872, § 1325. Words to receive an operative construction. The words of a will are to receive an interpretation Avhich will give to every expression some effect, rather than one which will render any of the expressions inoperative. Haxmonizing various parts: See ante, § 1321. Legislation § 1325. Enacted March 21, 1872. § 1326. Intestacy to be avoided. Of two modes of inter- preting a will, that is to be preferred which will prevent a total intestacy. Legislation § 1326. 1. Enacted March 21, 1872. 2. Amendment by Stats. 1901, p. 403; unconstitutional. See note, § 4, ante. § 1327. Effect of technical words. Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that the will Avas draAvn solely by the testator, and that he was unacquainted Avith such technical sense. [Amend- ment approved 1905; Stats. 1905, p. 606.] ,^ Technical words, how construed: See ante, § 13; post, § 1645. Legislation § 1327. 1. Enacted March 21. 1872, and then read: "Tech- nical words in a will are to be taken in their technical sense, unlesf the context clearly indicates a contrary intention." 2. Amendment by Stats. 1901, p. 403; unconstitutional. See note § 4, ante. 3. Amended by Stats. 1905, p. 606; the code commissioner saying of the addition, that it "provides that the words in a will need not be taken in a technical sense, if it appears to have been drawn by the testator, and that he was unacquainted with such sense." § 1328. Technical words not necessary. Technical words are not necessary to give effect to any species of disposition by a will. Legislation § 1328. Enacted Marc'j 21, 1872. § 1329. Certain words not necessary to pass a fee. The term "heirs," or other words of inheritance, are not requisite to devise a fee, and a devise of real property passes all the estate of the testator, unless otherwise limited. Words of succession not necessary to transfer a fee: See ante, § 1072. What passes by devise: See ante, § 1311. Legislation § 1329. Enacted March 21, 1872. § 1330. Power to devise, how executed by terms of will. Real or personal property embraced in a power to devise. 461 ' INTERPRETATION OP WILLS, ETC. § 1334 passes by a will purporting to devise all the real or personal property of the testator. Legislation § 1330. Enacted March 21, 1872. § 1331. Devise or bequest of all real or all personal prop- erty, or both. A devise or bequest of all the testator's real or personal property, in express terms, or in any other terms de- noting his intent to dispose of all his real or personal property, passes all the real or personal property which he was entitled to dispose of by will at the time of his death. Construction of devise: See ante, §§ 1311, 1312. General and specific legacies: See post, § 1357. Legislation § 1331. Enacted March 21, 1872. § 1332. Residuary clause. A devise of the residue of the testator's real property passes all the real property which he was entitled to devise at the time of his death, not otherwise effectually devised by his will. [Amendment approved 1874; Code Amdts. 1873-74, p. 234.] Legislation § 1332. 1, Enacted March 21, 1872, and then read: "A devise of the residue of the testator's estate, property, or real prop- erty, passes all the real property which he was entitled to devise at the time of his death, not otherwise effectually devised by his will." 2. Amended by Code Amdts. 1873-74, p. 234. § 1333. Same. A bequest of the residue of the testator's personal property, passes all the personal property Avhich he was entitled to bequeath at the time of his death, not other- wise effectually bequeathed by his will. [Amendment ap- proved 1874; Code Amdts. 1873-74, p. 234.] Legislation § 1333. 1. Enacted March 21, 1872, and then read: "A bequest of the residue of the testator's estate, property, or personal property, passes all the personal property which he was entitled to bequeath at the time of his death, not otherwise effectually bequeathed by his will." 2. Amended by Code Amdts. 1873-74, p. 234. § 1334. ' ' Heirs, " " relatives, " " issue, " " descendants, ' ' etc. A testamentary disposition to "heirs," ''relations," 'Inearest relations," "representatives," "legal representatives," or "personal representatives," or "family," "issue," "descend- ants," "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 property in those who would be entitled to succeed to the property of such person, according to the provisions of the title on succes- sion, in this code. "Issue," interpretation of: See ante, § 1071. Legislation § 1334. Enacted March 21, 1872; based on Norris v. Hensley, 27 Cal. 3&. § 1340 CIVIL CODE. • 462 § 1335. Words of donation and of limitation. The terms mentioned in the last section are nsed as words of donation, and not of limitation, when the property is given to the person so designated, directly, and not as a qualification of an estate given to the ancestor of such person. Rule in Shelley's Case not adopted in this state: See ante, § 779. Legislation § 1335. Enacted March 21, 1872. § 1336. To what time w^ords refer. Words in a will refer- ring to death or survivorship, simply, relate to the time of the testator's death, unless possession is actually postponed, when they must be referred to the time of .possession. Legislation § 1336. Enacted March 21, 1872. § 1337. Devise or bequest to a class. A testamentary dis- position to a class includes every person answering the descrip- tion at the testator's death; but when the possession is post- poned to a future period, it includes also all persons coming within the description before the time to which possession is postponed. Posthumous children: See post, § 1339. Legislation § 1337. Enacted March 21, 1872. § 1338. When conversion takes effect. When a will directs the conversion of real property into money, such property and all its proceeds must be deemed personal property from the time of the testator's death. Legislation § 1338. Enacted March 21, 1872. § 1339. When child born after testator's death takes under will. A child conceived before, but not born until after a testator's death, or any other period when a disposition to a class vests in right or in possession, takes, if answering to the description of the class. Child en ventre sa mere: See ante, § 29. Succession by posthumous children: "See ante, §§ 698, 1306; post, § 1403. Legislation § 1339. Enacted March 21, 1872. § 1340. Mistakes and omissions. When, applying a will, it is found that there is an imperfect description, or that no per- son or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the con- text of the will or from extrinsic evidence ; but evidence of the declarations of the testator as to his intentions cannot be received. Evidence of intention: See ante, § 1318. Testator's declarations: See ante, § 131S. Legislation § 1340. Enacted March 21, 1872. 463 INTERPRETATION OF WILLS, ETC. § 1347 § 1341. When devises and bequests vest. Testamentary dis- positions, including devises and bequests to a person on attain- ing majority, are presumed to vest at the testator's death. Legislation § 1341. Enacted March 21, 1872. § 1342. When cannot be divested. A testamentary disposi- tion, when vested, cannot be divested unless upon the occur- rence of the precise contingency prescribed by the testator for that purpose. Legislation § 1342. Enacted March 21, 1872. § 1343. Death of devisee or legfatee. If a devisee or legatee dies during the lifetime of the testator, the testamentary dis- position to him fails, unless an intention appears to substitute some other in his place, except as provided in section thirteen hundred and ten. [Amendment approved 1874; Code Amdts. 1873-74, p. 234.] Legislation § 1343. 1. Enacted March 21, 1872, and then ended with the words "to substitute some other in his place." 2. Amended by Code Amdts. 1873-74, p. 234, adding the final excep- tion. 3. Amendment by Stats. 1901, p. 403; unconstitutional. See note, § 4, ante. § 1344. Interests in remainder are not affected. The death of a devisee or legatee of a limited interest before the testator's death does not defeat the interests of persons in remainder, who survive the testator. Legislation § 1344. Enacted March 21, 1872. § 1345. Conditional devises and bequests. A conditional disposition is one which depends upon the occurrence of some uncertain event, by which it is either to take effect or be defeated. Conditions of ownership: See ante, §§ 707 et seq. Conditional obligations: See post, §§ 1434 et seq. Legislation § 1345. Enacted March 21, 1872. § 1346. Condition precedent, what. A condition precedent in a will is one which is required to be fulfilled before a particu- lar disposition takes etfect. Conditions precedent, what are: See ante, § 708; post, § 1436. Legislation § 1346. Enacted March 21, 1872. § 1347. Effect of condition precedent. Where a testa- mentary disposition is made upon a condition precedent, nothing vests until the condition is fulfilled, except where such fulfillment is impossible, in Avhich case the disposition vests, unless the condition was the sole motive thereof, and § 1351 CIVIL CODE. 464 the impossibility was unknown to the testator, or arose from an unavoidable event subsequent to the execution of the will. Legislation § 1347. Enacted March 21, 1872. § 1348. Conditions precedent, when deemed performed. A condition precedent in a will is to be deemed performed when the testator's intention has been substantially, though not lit- erally, complied with. Legislation § 1348. Enacted March 21, 1872. § 1349. Conditions subsequent, what. A condition subse- quent is where an estate or interest is so given as to vest im- mediately, subject only to be divested by some subsequent act or event. Conditions subsequent: See ante, § 708; post, § 1438. Legislation § 1349. Enacted March 21, 1872. § 1350. Devisees, etc., take as tenants in common. A devise or legacy given to more than one person vests in them as own- ers in common. Legislation § 1350. Enacted March 21, 1872. § 1351. Advancements, when ademptions. Advancements or gifts are not to be taken as ademptions of general legacies, unless such intention is expressed by the testator in writing. Advancement in cases of intestacy: See post, §§ 1395-1399. Legislation § 1351. Enacted March 21, 1872. The code commission- ers say: "The preceding chapter is, in a modified form, taken from the New York Civil Code, from §§ 579 to 613, inclusive. We' have had no general rules of construction adopted by our legislature, and after the preparation of the first chapter of this title it was thought best to adopt also these rules of construction. The usual course of noting each section from which they are taken, for economy in printing, is departed from in this chapter." 465 GENERAL PROVISIONS RELATING TO WILLS. § 1358 CHAPTER III. General Provisions Relating to Wills. § 1357. Nature and designation of legacies. § 1358. Estate chargeable in case of intestacy. § 1359. Order of resort to estate for debts. § 1360. Same for legacies. § 13-61. Legacies, how charged with debts. § 1362. Abatement. § 1363. Specific devises and legacies. § 1364. Heir's conveyance good, unless will is proved within four years. § 1365. Possession of legatees. § 1366. Bequest of interest. § 1367. Satisfaction. § 1368. Legacies, when due. § 1369. Interest. § 1370. Construction of these rules. § 1371. Executor according to the tenor. § 1372. Power given executor to appoint is invalid. § 1373. Executor not to act till qualified. § 1374. Provisions as to revocations. § 1375. Execution and construction of prior wills not affected. § 1376. Law governing interpretation. § 1377. Liability of beneficiaries for testator's obligations. § 1357. Nature and designation of legacies. Legacies are distinguished and designated, according to their nature, as follows : 1. A legacy 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, resort may be had to the general assets, as in case of a general legacy ; 3. All annuity is a bequest of certain specified sums period- ically ; if the fund or property out of which they are payable fails, resort may be had to the general assets, as in case of a general legacy ; 4. A residuary legacy embraces only that which remains after all the bequests of the will are discharged ; 5. All other legacies are general legacies. Annuities commence at the testator's death: Post, § 1368. General legacies, payable when: See post, § 1368. Legislation § 1357. Enacted March 21, 1872. § 1358. Estate chargeable in case of intestacy. When a person dies intestate, all his property, real and personal, with- Civ. Code — 30 § 1360 CIVIL CODE. 466 out any distinction between them, is chargeable with the pay- ment of his debts, except as otherwise provided in this code and the Code of Civil Procedure. [Amendment approved 1874; Code Amdts. 1873-74, p. 234.] All property chargeable with debts: Code Civ. Proc, § 1516. Debts to be paid from what: Code Civ. Proc, §§ 1516, 1560, 1562 et seq.; post, § 1359. Order of payment of debts: Code Civ. Proc, § 1643. Provision for support of the family: *Code Civ. Proc, §§ 1464 et seq. Legislation § 1358. 1. Enacted March 21, 1872, and then read: "When a person dies intestate, his property, except such as is other- wise disposed of under this code, and under chapteT V, of title XI, of part III, of the Code of Civil Procedure, and exempt from execution therein, is to be resorted to, in the following order, in payment of debts: 1. Personal property; 2. Eeal property, other than estates of freehold; 3. Estates of freehold." 2. Amended by Code Amdts. 1873-74, p. 234. § 1359. Order of resort to estate for debts. The property of a testator, except as otherwise specially provided in this code and the Code of Civil Procedure, must be resorted to for the payment of debts, in the following order : One. The property which is expressly appropriated by the will for the payment of the debts ; Two. Property not disposed of by the will ; Three. Property which is devised or bequeathed to a resid- uary legatee ; Four. Property which is not specifically devised or be- queathed; and. Five. 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. [Amendment approved 1874 ; Code Amdts. 1873-74, p. 234.] Legislation § 1359. 1. Enacted March 21, 1872 (based on Cal. Code Civ. Proc, tit. xi, c. vii), and then read: "The property of a testator, with the exception specified in the last section, is to be resorted to, in the following order, for the payment of debts and legacies: 1. Per- sonal property, excepting such as is expressly exempted in the will;. 2. Eeal property expressly devised to pay debts or legacies, where the personal property is exempted in the will, or where the personal prop- erty which is not exempted is insufficient; 3. Eeal property which is not effectually devised; 4. Property, real or personal, charged with debts or legacies; but though real property is charged with the pay- ment of legacies, the personal property is not to be exonerated; 5. The following property, ratably; real property, devised without being charged with debts or legacies, and specific and demonstrative legacies; 6. Personal property expressly exempted in the will." 2. Amended by Code Amdts. 1873-74, p. 234. § 1360. Same for legacies. The property of a testator, ex- cept as otherwise specially provided in this code and the Code of Civil Procedure, must be resorted to for the payment of legacies, in the following order : 467 GENERAL PROVISIONS RELATING TO WILLS. § 1364 One. The property which is expressly appropriated by the will for the payment of the legacies. Two. Property not disposed of by the will. Three. Property which is devised or bequeathed to a residu- ary legatee. Four. Property which is specifically devised or bequeathed. [Amendment approved 1874; Code Amdts. 1873-74, p. 235.] Pajrment of legacies. When legacies are due: Post, § 1368. When may be paid: Code Civ. Proc, §§ 1658 et seq. Legacies liable for debts: See Code Civ. Proc, §§ 1563 et seq. Legislation § 1360. 1. Enacted March 21, 1872, and then read: "In the application of the personal property of a decedent to the' payment of debts, legacies must be charged in the following order, unless a different intention is expressed in the will: 1. Eesiduary legacies; 2. General legacies; 3. Legacies given for a valuable consideration, or for the relinquishment of some right or interest; 4. Specific and demonstrative legacies." 2. Amended by Code Amdts. 1873-74, p. 235. 3. Amendment by Stats. 1901, p. 403; unconstitutional. See note, § 4, ante. § 1361. Legacies, how charged with debts. Legacies to hus- band, widow, or kindred of any class are chargeable only after legacies to persons not related to the testator. Legislation § 1361. Enacted March 21, 1872. § 1362. Abatement. Abatement takes place in any class only as between legacies of that class, unless a different inten- tion is expressed in the will. Legislation § 1362. Enacted March 21, 1872. § 1363. Specific devises and legacies. In a specific devise or legacy, the title passes by the will, but possession can only be obtained from the personal representative; and he may be authorized by the superior court to sell the property devised and bequeathed in the cases herein provided. [Amendment approved 1880; Code Amdts. 1880, p. 8.] How title passes in cases of intestacy: See post, § 1386. Legislation § 1363. 1. Enacted March 21, 1872. 2. Amended by Code Amdts. 1880, p. 8, substituting "superior court" for "judge of the probate court." § 1364. Heir's conveyance good, unless will is proved within four years. The rights of a purchaser or encumbrancer of real property, in good faith and for value, derived from any person claiming the same by succession, are not imi)aired by any devise made by the decedent from whom succession is claimed, unless within four years after the devisor's death, the instrument containing such devise is duly proved as a will, and recorded in the office of the clerk of the superior court hav- ing jurisdiction thereof, or written notice of such devise is § 1368 CIVIL CODE. 468 filed with the clerk of the county where the real property is situated. [Amendment approved 1905; Stats. 1905, p. 606.] Recording will: See Code Civ. Proc, §§ 1314, 1318. Legislation § 1364. 1. Enacted March 21, 1872 (based on Field's Draft, X. Y. Civ. Code, § 621), and then read: "The rights of a purchaser or en- cumbrancer 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, unless the instrument containing such devise is duly proved as a will, and recorded in the oflEice of the clerk of the probate 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." 2. Amended by Code Amdts. 1880, p. 8, substituting "superior court" for "probate court." 3. Amendment by Stats. 1901, p. 404; unconstitutional: See note, § 4, ante. 4. Amended by Stats. 1905, p. 606. § 1365. Possession of legatees. 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 representa- tive, 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 representative, as the case may be. Legislation § 1365. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 622. § 1366. Bequest of interest. In case of a bequest of the interest or income of a certain sum or fund, the income accrues from the testator's death. Annuities conunence at testator's death: Post, § 1368. Accumulations: See ante, §§ 722 et seq. Legislation § 1366. Enacted March 21, 1872; based on Field's Draft, X. Y. Civ. Code, § 623. § 1367. Satisfaction. A legacy, or a gift in contemplation, fear, or peril of death, may be satisfied before death. [Amend- ment apf)roved 1874; Code Amdts. 1873-74, p. 235.] Legislation § 1367. 1. Enacted March 21, 1872. 2. Amended by Code Amdts. 1873-74, p. 235, adding "before death" at end of section. § 1368. Leg-acies, when due. Legacies are due and deliver- able at the expiration of one year after the testator 's decease. Annuities commence at the testator 's decease. Legacies payable after four months: See Code Civ. Proc, § 1658. Legislation § 1368. Enacted March 21, 1872. 469 GENERAL PROVISIONS RELATING TO WILLS. § 1375 § 1369. Interest. Legacies bear interest from the time Avhen they are due and payable, except that legacies for main- tenance, or to the testator's widow, bear interest from the testator's decease. Legislation § 1369. Euac-tccl March 21, 1872. § 1370. Construction of these rules. The four preceding sections are in all cases to be controlled by a testator's express intention. Intention of testator: See ante, § 1317. IiCgislation § 1370. Enacted March 21, 1872. § 1371. Executor according* to the tenor. 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 entitled to letters testamentary in like man- ner as if he had been named executor. Appointment of executors: See Code Civ. Proc, §§ 1348 et seq., 1365. Legislation § 1371. Enacted March 21, 1872. § 1372. Power given executor to appoint is invalid. An authority to an executor to appoint an executor is void. Executor of executor: See Code Civ. Proc, § 1353. Legislation § 1372. Enacted March 21, 1872. § 1373. Executor not to act till qualified. No person has any power, as an executor, until he qualifies, except that, be- fore letters have been issued, he may pay funeral charges and take necessary measures for the preservation of the estate. Qualification of executor: See Code Civ. Proc, §§ 1350, 1353, 1365 et seq. Payment of debts: See ante, § 1359. Legislation § 1373. Enacted March 21, 1872. § 1374. Provisions as to revocations. The provisions of this title in relation to the revocation of wills apply to all wills made by any testator living at the expiration of one year from the time it takes effect. Legislation § 1374. Enacted March 21, 1872. § 1375. Execution and construction of prior wills not af- fected. The provisions of this title do not impair the validity of the execution of any aa^II made before it takes effect, or affect the construction of any such will. Legislation § 1375. Enacted March 21, 1872. § 1377 CIVIL CODE. ■ 470 § 1376. Law governing interpretation. The validity and interpretation of AvilLs, Avherever made, are governed, Avhen re- lating to property within this state, by the law of this state, except as provided in section twelve hundred and eighty-five. [Amendment approved 1905 ; Stats. 1905, p. 607.] Law governing: See ante, § 1285. Legislation § 1376. 1. Enacted March 21, 1872, and then read: "Except as otherwise provided, the validity and interpretation of wills are governed, when relating to real property within this state, by the law of this state; when relating to personal property, by thg law of the testator's domicile." 2. Amended by Code Amdts. 1873-74, p. 2.3.5, to read: "The validity and interpretation of wills, wherever made, are governed when relat- ing to property within this state, by the law of this state." 3. Amendment by Stats. 1901, p. 405; unconstitutional: See n(A.e, § 4, ante. 4. Amended by Stats. 1905, p. 607; the code commissioner saying, "The change . . . has been rendered necessary by the proposed amend- ment to § 1285." § 1377. Liability of beneficiaries for testator's obligations. Those to whom property is given by will are liable for the obli- gations of the testator in the cases and to the extent prescribed by the Code of Civil Procedure. Legislation § 1377, Enacted March 21, 1872. The code commission- ers say: "The three chapters comprising the title on wills embrace all the laws of our state relating to the subject not contained in title XI of the Code of Civil Procedure; as also many of the provisions of the Civil Code of New York on the corresponding subject, from § 614 to § 636, inclusive. This somewhat enlarges the space occupied here- tofore by our laws, but space is not to be considered when the provi- sions embodied are so salutary and so obviously well digested and pre- pared. Practical experience may demonstrate the usefulness of other provisions, but those given are supposed to provide for every con- ceivable contingency." 471 SUCCESSION. §1384 TITLE' VII. Succession. § 1383. Succession defined. § 1384. Intestate's -estate, to whom passes. § 1385. Personal representatives. [Repealed.] § 1386. Succession to and distribution of estate of deceased person. § 1387. Illegitimate children to inherit in certain events. § 1388. Successor to illegitimate child. § 1389. Degrees of kindred, how computed. § 1390. Same. Direct and collateral consanguinity. § 1391. Same. Direct line descending, and direct line ascending. § 1392. Same. Degrees in direct line. § 1393. Same. Degrees in collateral line. § 1394. Relatives of the half blood. § 1395. Advancements constitute part of distributive share. § .1396. Advancements, when too much, or not enough. § 1397. What are advancements. § 1398. Value of advancements, how determined. § 1399. When heir, advanced to, dies before decedent. § 1400. Inheritance of husband and wife from each other. § 1401. Distribution of the common property on death of wife. § 1402. Distribution of common property on death of husband. § 1403. Inheritance by representation. § 1404. Aliens may inherit, when, and how. § 1405. Succession not claimed, attorney-general to cause to be sold, and proceeds deposited with state treasurer. § 1406. When the property and estate escheat to the state. § 1407. Property escheated subject to charges as other property. § 1408. Successor liable for decedent's obligations. § 1409. Person convicted of murder of decedent not to succeed. § 1383. Succession defined. Succession is the coming in of another to take the property of one who dies without dispos- ing of it by will. Legislation § 1383. Enacted March 21, 1872. §1384. Intestate's estate, to whom passes. 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 the probate court, and to .the possession of any ad- ministrator appointed by that court, for the purposes of admin- istration. [Amendment approved 1874; Code Amdts 1873-74, p. 236.] Possession of personal representative: See Code Civ. Proc, §§ 1452, 1581. Legislation § 1384. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, §§ 638, 639, modified), and read: "The property, both real and personal, of any one who dies without disposing of it by will, passes, in the first instance, to the personal representative of such person as trustee: 1. To make the provision for the surviving husband or wife, or child, which is directed by title XI, of part III, of the Code of Civil Procedure; 2. To apply the property to the § 1386 CIVIL CODE. 472 payment of the debts of the decedent, according to the title on wills, and the provisions of the Code of Civil Procedure; and, 3. To distribute any remaining property among those entitled to succeed to the prop- erty of the decedent, according to the provisions of this title." 2. Amended by Code Amdts. 1873-74, p. 236. § 1385. Personal representatives. [Repealed 1874 : Code Amdts. 1873-74, p. 236.] Legislation § 1385. 1, Enacted March 21, 1872. 2. Repeale.l liy Code Amdts. 1873-71, p. 236. § 1386. Succession to and distribution of estate of deceased person. When any person having title to any estate not other- wise limited by marriage contract, dies without disposing thereof by will, it is succeeded to and must be distributed, unless otherMnse expressly provided in this code and the Code of Civil Procedure, subject to the payment of his debts, in the following manner : 1. If the decedent leaves a surviving husband or wife, and only one child, or the lawful issue of one child, in equal shares to the surviving husband, or wife and child, or issue of such child. If the decedent leaves a surviving husband or wife, and more than one child living, or one child living and the lawful issue of one or more deceased children, one third to the sur- viving husband or wife, and the remainder in equal shares to his children and to the lawful issue of any deceased child, by right of representation; but if there is no child of decedent living at his death, the remainder goes to all of his lineal de- scendants ; and if all of the descendants are in the same degree of kindred to the decedent, they share equally, otherwise they take according to the right of representation. If the decedent leaves no surviving husband or wife, but leaves issue, the Avhole estate goes to such issue ; and if such issue consists of more than one child living, or one child living 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 representation ; 2. If the decedent leaves no issue, the estate goes one half to the surviving husband or wife, and the other half to the decedent's father and mother in equal shares, and if either is dead the whole of said half goes to the other. If there is no father or mother, then one half goes in equal shares to the brothers and sisters of decedent and to the children or grand- children of any deceased brother or sister by right of repre- sentation. If the decedent leaves no issue, nor husband nor wife, the estate must go to his father and mother in equal shares, or if either is dead then to the other; 473 SUCCESSION. § 1386 3. If there is neither issue, husband, wife, father, nor mother then in equal shares to the brothers and sisters of decedent and to the children or grandchildren of any deceased brother or sister, by right of representation ; 4. If the decedent leaves a surviving husband or wife, and neither issue, father, mother, brother, sister, nor the children or grandchildren of a deceased brother or sister, the whole estate goes to the surviving husband or Avif e ; 5. If the decedent leaves neither issue, husband, wife, father, mother, brother, nor sister, the estate must go to the next of kin, in equal degree, excepting that, when there are two or more collateral kindred, in equal degree, but claiming through different ancestors, those who claim through the nearest an- cestor must be preferred to those claiming through an ancestor more remote ; 6. If the decedent leaves several children, or one child and the issue of one or more children, and any such surviving child dies under age and not having been married, all the estate that came to the deceased child by inheritance from such decedent descends in equal shares to the other children of the same parent and to the issue of any such other children who are dead, by right of representation ; 7. If, at the death of such child, who dies under ^age, not having been married, all the other children of his parents are also dead, and any of them has left issue, the estate that came to such child by inheritance from his parent descends to the issue of all other children of the same parent; and if all the issue are in the same degree of kindred to the child, they share the estate equally, otherwise they take according to the right of representation ; 8. If the deceased is a widow, or widower, and leaves no issue, and the estate, or any portion thereof, was common prop- erty of such decedent and his or her deceased spouse, while such spouse was living, such property goes in equal shares to the children of such deceased spouse and to the descendants of such children by right of representation, and if none, then one half of such common j^roperty goes to the father and mother of such decedent in equal shares, or to the survivor of them if either be dead, or if both be dead, then in equal shares to the brothers and sisters of such decedent and to the descend- ants of any deceased brother or sister by right of representa- tion, and the other half goes to the father and mother of such deceased spouse in equal shares, or to the survivor of them if either be dead, or if both be dead, then in equal shares to the brothers and sisters of such deceased spouse and to the de- scendants of any deceased brother or sister by right of repre- sentation. § 1386 CIVIL CODE. 474 If the estate, or any portion thereof, -was separate property of such deceased sponse, while living, and came to snch de- cedent from such spouse by descent, devise, or bequest, such property goes in equal shares to the children of such spouse and to the descendant-s of any deceased child hj right of rep- resentation, and if none, then to the father and mother of such spouse, in equal shares, or to the survivor of them if either be dead, or if both be dead, then in equal shares to the brothers and sisters of such spouse and to the descendants of any de- ceased brother or sister by right of representation. 9. If the decedent leaves no husband, wife, or kindred, and there are no heirs to take his estate or any portion thereof, under subdivision eight of this section, the same escheats to the state for the support of the common schools. [Amendment approved 1907; Stats. 1907, p. 567.] Administration of intestates' estates: See Code Civ. Proc, §§ 1365 et seq. Legislation § 1386. 1. Enacted March 21, 1872 (based on Stats. 1850, p. 219, §1; Stats. 1862, p. 569, § 1), and then read: "When any person having title to any estate not otherwise limited by marriage contract, dies without disposing of the same by will, it is succeeded to, and must be distributed, subject to the payment of his debts, in the following manner: 1. If the decedent leaves a surviving husband or wife, and only one child, or the lawful issue of one child, in equal shares to the surviving husband, or wife and child, or issue' of such child. If the decedent leaves a surviving husband or wife, and more than one child living, or one child living, and the lawful issue of one or more deceased children, one third to the surviving husband or wife, and the remainder in equal shares to his children, and to the lawful issue of any deceased child, by right of representation. If there be no child of the decedent living at his death, the remainder goes to all of his lineal descendants; and if all the descendants are in the same degree of kindred to the decedent they share equally, otherwise they take according to the right of representation; 2. If the decedent leaves no issue, the estate goes in -equal shares to the surviving husband or wife, and to the decedent's father. ' If there be no father, 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 representa- tion; if he leaves a mother also, she takes an equal share with the brothers and sisters. If decedent leaves no issue, nor husband, nor wife, the estate must go to his father; 3. If there be no issue, nor husband, nor wife, nor father, then 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 a mother survives, she takes an equal share with the brothers and sisters; 4. If the de- cedent leaves no issue, nor husband nor wife, nor father, and no brother nor sister is living at the time of his death, the estate goes to his mother, to the exclusion of the issue, if any, of deceased brothers or sisters; 5. If the decedent leaves a surviving husband or wife, and no issue, and no father, nor mother, nor brother, nor sister, the whole estate goes to the surviving husband or wife; 6. If the decedent leave? no issue, nor husband, nor wife, and no father, nor mother, nor brother nor sister, the estate must go to the next of kin, in equal degree, ex- cepting that when there are two or more collateral kindred, in equai 475 _ SUCCESSION. § 1386 degree, but claiming through different ancestors, those who claimed through the nearest ancestors must be preferred to those claiming through an ancestor more remote; however: 7. If the decedent leaves several children, or one child and the issue of one or more other chil- dren, and any such surviving child dies under age, and not having been married, all the estate that came to the deceased child by inheri- tance from such decedent descends in equal shares to the other chil- dren of the same 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 chil- dren of his parents are also dead, and any of them have left issue, the estate that came to such child by inheritance from his parent descends to the' issue of all other children of the same parent; and if all the issue are in the same degree of kindred to the child, they share the estate equally, O'therwise they take' according to the right of represen- tation; 9. If the decedent leaves no husband, wife, or kindred, the estate escheats to the state, for the support of common schools." 2. Amended by Code Amdts. 1873-74, p. 236, (1) changing the intro- ductory paragraph to read, "When any person having title to any estate not otherwise limited by marriage contract, dies without dis- posing of the' estate by will, it is succeeded to and must be distributed, unless otherwise expressly provided in this code and the Code of Civil Procedure, subject to the payment of his debts, in the following man- ner"; (2) in subd. 1, (a) in first sentence, changing "leaves" to "leave," (b) in second sentence, changing "leaves" to "leave" and adding "but" before "if there be no child" and "of" after "and if all," and (c) adding a third sentence, reading same in all the subsequent amend- ments, except the word "leave," which, when added, was printed "leave" in first and "leaves" in second instance; (3) in subd. 2 (a) changing "leaves" to "leave" in each instance, (b) adding "and" (sic) before "the estate," and (e) changing "his" to "the" before "father" at end of subdivision; (4) in subd. 4, changing (a) "leaves" tO' "leave" before "no issue," and (b) "nor" to "or" afte'r "no brother"; (5) in subds. 5 and 6, changing "leaves" to "leave"; (6) in subd. 7, (a) changing "leaves" to "leave," and (b) omitting "other" after "one or mo-re"; (7) in subd. 9, changing "leaves" to "leave." 3. Amended by Code Amdts. 1880, p. 14 (1) the introductory para- graph reading the same as the amendment of 1873-74; (2) in subd. 1, (a) in second sentence, omitting "of" afte'r "and if all," and (b) in final sentence (added in 1873-74), changing "leaves" to "leave" in second instance; (3) changing subd. 2 to read, "2. If the decedent leave no issue, the estate goes, one-half to the surviving husband or wife, and the other half to the decedent's father and mother, in equal shares, and if either be dead, the whole of said half goes to the other; if there be no father or mother, then one half goes in equal shares to the brothers and sisters of the decedent, and to the children of any de- ceased brother or sister by right of representation. If the decedent leave no issue, nor husband, nor wife, the estate must go to his father and mother, in equal shares, or if either be dead, then to the other"; (4) changing subd. 3 to read: "If there be neither issue, husband, wife, father nor mother, then in equal shares to the brothers and sis- ters of the decedent, and to tlio children of any deceased brother or sister by right of representation"; (4) omitting subd. 4 in toto; (5) changing subd. 5 to read: "5. If the decedent leave a surviving hus- band or wife, and neither issue, father, mother, brother, nor sister, the' whole estate goes to the surviving husband or wife"; (6) changing subd. 6 to read: "6. If the decedent leave neither issue, husband, wife, father, mother, brother, nor sister, the estate must go to the § 1387 CIVIL CODE. 476 next of kin in equal degree, excepting that when there are two or more collateral kindred in equal degree, but claiming through different an- cestors, those who claimed through the nearest ancestors must be pre- ferred to those claiming through an ancestor more remote"; (7) in subd. 7, changing "parent" to "parents" after "from his"; (8) adding a new subd. 9, the old subd. 9 being renumbered subd. 10 and amended, these subdivisions reading, "9. If the decedent be a widow or widower, and leave no kindred, and the estate, or any portion thereof, was com- mon property of such decedent, and his or her deceased spouse, while such 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 go 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 leave 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." 4. Amendment by Stats. 1901, p. 404; unconstitutional. See note, § 4, ante. 5. Amended by Stats. 1905, p. 608, and differing from the amendment of 1907 only in subd. 8, which read: "If the decedent is a widow or widower, and leaves no issue, and the estate or any portion there'of was common property of such decedent and his or her deceased spouse, while such spouse was living, or was separate property of his or her deceased spouse, while such spouse was living, such property goes to the children of such deceased spouse and the descendants theTeof, and if none, then to the father of such decased spouse, or if he is dead, to the mother. If there is no father nor mother, then such property goes 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." 6. Amended by Stats. 1907, p. 567; the' code commissioner saying, "In 1905 a clerical error was corrected by renumbering the subdivisions, and certain errors of grammar were corrected. The words 'or grand- child' were inserted after 'child'; the words 'nor the child or grand- child of a deceased brother or sister' were inserted after 'sister'; the words 'children of such deceased spouse' and the descendants thereof, and if none, then to,' were also inserted. In the second line of subd. 8, the word 'issue' was substituted for 'kindred,' and the subdivision amended to overcome such cases as Estate of McCauley, 138 Cal. 546. Upon further consideration the section, as thus amended, being deemed to be still unsatisfactory, it was again amended in 1907 by e'ntirely recasting subd. 8." § 1387. Illegitimate children to inherit in certain events. Every illegitimate child is an heir of the person who, in writ- ing, signed in the presence of a competent witness, acknowl- edges himself to be the father of such child ; and in all cases is an heir of his mother ; and inherits his or her estate, in whole or in part, as the case may be, in the same manner as if he had been born in lawful wedlock; but he does not represent his father or mother by inheriting any part of the estate of his or her kindred, either lineal or collateral, unless, before his death, his parents shall have intermarried, and his father, after such marriage, acknowledges him as his child, or adopts him 1388. Successor to Illegitimate Child. The estate of an illegitimate child, who, [having title to any estate not otherwise limited by marriage contract, dies without disposing thereof by will, is succeeded to as If he had been born in lawful wedlock if he] has been legritimated by a sulisequent marriage of his parents, or adopted by [his] father as provided by section two hundred thirty [; otherwise, it is succeeded to as if he had been born In lawful wedlock and had survived his father and all persons related to him only through his father]. (In effect 90 days from and after April 29, 1921. Stats. 1921, Chap. 186.) Civ. Code, 1921. 477 SUCCESSION. § 1390 into his family ; in which case such child and all the legitimate children are considered brothers and sisters, and on the death of either of them, intestate, and without issue, the others in- herit his estate, and are heirs, as hereinbefore provided, in like manner as if all the children had been legitimate ; saving to the father and mother, respectively, their rights in the es- tates of all the children in like manner as if all had been legiti- mate. The issue of all marriages null in law, or dissolved by divorce, are legitimate. Adoption of illegitimate child: See ante, § 230. Legitimacy of children of annulled marriage: See ante, § 84. Legislation § 1387. 1. Enacted March 21, 1872; based on Stats. 1850, p. 219, § 2. 2. Amendment by Stats. 1901, p. 406; unconstitutional. See note § 4, ante. § 1388. Successor to illegitimate child. The estate of an illegitimate child, who has been legitimated by the subsequent marriage of its parents, or adopted by the father as provided by section two hundred and thirty, and who dies intestate, is succeeded to as if he were born in lawful wedlock. If such child has not been so legitimated or adopted, his estate goes to his lawful issue, or, if he leaves no issue, to his mother, or in case of her decease, to her heirs at law. [Amendment ap- proved 1905; Stats. 1905, p. 609.] Legislation § 1388. 1. Enacted March 21, 1872 (based on Stats. 1850, p. 220, §.3), and then read: "If an illegitimate' child, who has not Ijeen acknowledged or adopted by his father, dies intestate, without lawful issue, his estate goes to his mother, or in case of her decease to her heirs at law." 2. Amendment by Stats. 1901, p. 406; unconstitutional. See note, §4, ante. 3. Amended by Stats. 1905, p. 609; the code commissioner saying, "The amendment consists in declaring that if an illegitimate child has been legitimated, his estate on his death is succeeded to as if he were born in wedlock." § 1389. Degrees of kindred, how computed. The degree of kindred is established l)y the numl)er of generations, and each generation is called a degree. Legislation § 1389, Enacted March 21, 1872; based on Stats. 1850. p. 221, § 4. § 1390. Same. Direct and collateral consanguinity. The series of degrees forms the line; the series of degrees between persons M^ho 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 consan- guinity. Legislation § 1390. Enacted March 21, 1872. § 1395 CIVIL CODE. 478 § 1391. Same. Direct line descending', and direct line as- cending'. The direct line is divided into a direct line descend- ing and a direct line ascending. The first is that which con- nects the ancestors with those who descend from him. The second is that which connects a person with those from whom he descends. Legislation § 1391. Enacted March 21, 1872. § 1392. Same. Deg'rees in direct line. In the direct line there are as many degrees as there are generations. Thus, the son is, with regard to the father, in the first degree ; the grand- son in the second; and vice versa with regard to the father and grandfather toward the sons and grandsons. Legislation § 1392. Enacted March 21, 1872; based on Stats. 1850, p. 221, §4. § 1393. Same, Deg'rees in collateral line. In the collateral line the degrees are counted hy generations, from one of the relations up to the common ancestor, and from the common ancestor to the other relations. In such computation the de- cedent is excluded, the relative included, and the ancestor counted but once. Thus, brothers are related in the second degree; uncle and nephew in the third degree; cousins german in the fourth, and so on. Legislation § 1393. Enacted March 21, 1872; based on Stats. 1850, p. 221, §1. § 1394. Relatives of the half blood. Kindred of the half blood inherit equally Avith those of the whole blood in the same degree, unless the inheritance come to the intestate by descent, devise, or gift of some one of his ancestors, in which case all those who are not of the blood of such ancestors must be excluded from such inheritance. Kindred of half blood as administrators: See Code Civ. Proc, § 1366. Legislation § 1394. Enacted March 21, 1872; based on Stats. 1850, p. 221, § 4. § 1395. Advancements constitute part of distributive share. Any estate, real or personal, given by the decedent in his life- time as an advancement to any child, or other heir, is a part of the estate of the decedent for the purposes of division and distribution thereof among his heirs, and must be taken by such child, or other heir, toward his share of the estate of the decedent. [Amendment approved 1905 ; Stats. 1905, p. 609.] Advancements: See ante, §§ 1309, 1351. Legislation § 1395. 1. Enacted March 21. 1872 (based on Stats. 1850, p. 221, § 5), and then read: "Any estate, real or personal, given by the decedent in his lifetime, as an advancement to any child, or 479 SUCCESSION. § 1399 other lineal descendant, is a part of the estate of the decedent for the purposes of division and distribution thereof among his issue', and must be taken by such child, or other lineal descendant, toward his share of the estate of the decedent." 2. Amendment by Stats. 1901, p. 406; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1905, p. 609. § 1396. Advancements, when too much, or not enough. If the amount of such advancement exceeds the share of the heir receiving the same, he must be excluded from any further portion in the division and distribution of the estate, but he must not be required to refund any part of such advancement ; and if the amount so received is less than his share, he is en- titled to so much more as will give him his full share of the estate of the decedent. Legislation § 1396. Enacted March 21, 1872; based on Stats. 1850, p. 221, § 6. § 1397. What are advancements. All gifts and grants are made as advancements, if expressed in the gift or grant to be so made, or if charged in writing by the decedent as an ad- vancement, or acknowledged in writing as such, by the child or other successor or heir. Legislation § 1397. Enacted March 21, 1872; based on Stats. 18-50, p. 221, § 7. § 1398. Value of advancements, how determined. Tf the value of the estate so advanced is expressed in the conveyance, or in the charge thereof made by the decedent, or in the ac- knowledgment of the party receiving it, it must be held as of that value in the division and distribution of the estate ; other- wise, it must be estimated according to its value when given, as nearly as the same can be ascertained. Legislation § 1398. Enacted March 21, 1872; based on Stats. 1850, p. 221, § 8. § 1399. When heir, advanced to, dies before decedent. If any child, or otlier heir receiving advancement, dies before the decedent, leaving heirs, the advancement must be taken into consideration in the division and distribution of the estate, and the amount thereof must be allowed accordingly by the representatives of the heirs receiving the advancement, in like manner as if the advancement had been made directly to them. [Amendment approved 1905; Stats. 1905, p. 609.] Legislation § 1399. 1. Enacted March 21, 1872 (based on Stats. 1850, p. 221, §9), and then had (1) the words "lineal descendant" instead of "heir" in first line, and (2) the word "issue" instead of "heirs" after "leaving." 2. Amendment by Stats. 1901, p. 400; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1905, p. 609. § 1403 CIVIL CODE. 480 § 1400. Inheritance of husband and wife from each other. The provisions of the preceding sections of this title, as to the inheritance of the husband and wife from ea»h other, apply only to the separate property of the decedents. Legislation § 1400. Enacted March 21, 1872; based on Stats. 1850, p. 221, § 10. § 1401. Distribution of the common property on death of wife. Upon the death of the wife, the entire community prop- erty, without administration, belongs to the surviving hus- band, except such portion thereof as may have been set apart to her by judicial decree, for her support and maintenance, which portion is subject to her testamentary disposition, and in the absence of such disposition, goes to her descendants, or heirs, exclusive of her husband. [Amendment approved 1874; Code Amdts. 1873-74, p.^238.] Legislation § 1401. 1. Enacted *March 21, 1872 (based on. Stats. 1863-64. p. 363, § 1), and then read: "Upon the death of the wife, the entire community property, without administration, belongs to the' surviving husband, if he shall not have abandoned and lived sepa- rate and apart from her; but if the husband shall have abandoned his wife, and lived separate and apart from her. the half of the commu- nity property, subject to the paj'ment of the debts chargeable to it, is at her testamentary disposition, and in the absence of such disposi- tion, goes to her descendants or heirs at law, exclusive of her hus- band." 2. Amended by Code Arndts. 1873-74, p. 238. § 1402. Distribution of common property on death of hus- band. Upon the death of the husband, one half of the com- munity 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 husband, the entire community property is equally subject to "his debts, the family allowance, and the charges and expenses of admin- istration. Community property, defined: Ante, §§ 163, 164. Legislation § 1402. Enacted March 21, 1872; based on Stats. 1863- 64, p. 363, § 1. § 1403. Inheritance by representation. Inheritance or suc- cession "by right of representation" takes place when the de- scendants of any deceased heir take the same share or right in the estate of another person that their parents would have I 1401. Distribution of Community Property on Death of Wife L'pon the oeath of the wife, [one-half] of the conimunit; I property belongs] to the surviving- husband, [and the othe half is subject to the testamentary disposition of the wife, sub ject, however, to the provisions of section one thousand twi hundred seventy-one of the Civil Code:] and in tlie absence o such testamentai\- disposition, [the entire community propert; goes to the surviving husband without administration, excep such portion thereof as may have been set apart to the wif by judicial decree for her support and maintenance, which por tion is subject to her testamentary disposition, and in th- absence of such disposition goes to her descendants or heirs exclusive of her husband, and the fact of intestacy may bi determined by proceedings under section one thousand sevei hundred twenty-three of the Code of Civil Procedure. Whei the wife makes testamentary disposition of her interest in thi community property, the entire community property is subjec to the community debts, and the charges and expenses of ad ministration. Prior to admission of any such will to probate the husband shall continue in the management and control o the community property; after the admission of the will ti probate, the court may and so far as the proper and advantage ous administration of the estate will permit, must continue th( management and control of the community property in the hus band, who from time to time shall account to the estate foi such management and control.] (In effect HO days from anc after April Tl, 1919. Stats. 1919, Chap. Gil.) Civ. Code, 1919 1402. Distribution of Community Profperty on Death of Hus- band. Upon the death of the husband, one-half of the com- munity property [belongs] to the surviving wife, and the other lialf is subject to the testamentary disposition of the husband, [subject, however, to the provisions of section one thousand two hundred seventy-one of the Civil Code,] and in ab.sence of such testamentary disposition, [it all goes to the surviving wife upon administration.] In case of the dissolution of the community by the death of the husband, the entire community property is equally subject to his debts, the family allowance and the charges and expenses of administration. (In effect 90 days from and after April 22, 1919. Stats. 1919. Chap. 611.) Civ. Code, 1919. rN, 1 Half of Community Property Belonging tc 1402a. iNew^] HaK o ^° J^^^ ^,,, Etc. The one- surviving Spouse ^ot Subject to , ^^ ^^^ surviving ,,alf of t'-/°"f ""^^ J';,r\o inheritance tax or be reckonec spouse shall not ^^ ^^''^\^'l.^'' '^^^^ spouse for the purpose as part of the estate "JJ^^ ^'^"^^^.Xs or administrators o: of fixing the compensation ^^ ^^^'^'^'^ f,„^ ^nd after Apri fixing attorneys fees. (In effect 90 da> s ^_^ ^^^^ ^^^^ 22, 1919. Stats. 1919, Chap. 611.) De^afh^o; w?;r"^^ Distnbut/on of r Civ. Code, 1921. 1402 [Repealed.] Distribution of Community Property on Death of Husband. (Stats. 1919, p. 1274.) Refused enactment by referendum vote of people at general election November 2, 1920. Civ. Code, 1921. l-402a. [Repealed.] Half of Community Property Belonging to Surviving Spouse Not Subject to Inheritance Tax, etc (Stats. 1919, p. 1275.) Refused enactment by referendum vote of people at general election November 2, 1920. Civ. Code, 1921. 1405. Escheat Property. [Whenever any person dies leaving any property in this state not disposed of by will, and there are no persons entitled to succeed thereto under the laws of this state, the same shall escheat to the state as of the date of the death of the decedent. The property or proceeds of any estate deposited in the state treasury after final decree of distribution or judgment of the superior court by reason of the failure of heirs to make claim thereto- may be recovered upon judgment of the superior court or order of the state board of control as provided in the Code of Civil Procedure.] (In effect 90 days from and after April 27, 1917. Stats. 1917, Chap. 170.) Civ. Code, 1917. 481 SUCCESSION. § 1405 taken if living. Posthumous children are considered as living at the death of their parents. Death of devisee, relative of testator, in lifetime of testator: See ante, § 1310. Succession by posthumous children: See ante, §§ 698, 1306, 1339. Legislation § 1403. Enacted March 21, 1872; based on Stats. 1850, p. 221, § 11. § 1404. Aliens may inherit, when, and how. Resident aliens may take in all cases by succession as citizen.s ; and no person capable of succeeding under the provisions of this title is pre- cluded from such succession by reason of the alienage of any relative ; but no non-resident foreigner can take by succession unless he appears and claims such succession within five years after the death of the decedent to whom he claims succession. Aliens. May take by succession: See ante, §§ 671, 672. Aliens. Control of property by: Const., art. i, § 17. Time to claim succession: See ante, § 672. Alien land law of 1913: See General Laws, Act 128. Legislation § 1404. Enacted March 21, 1872; based on Const. 1849, art. i, § 17; Stats. 1856, p. 137, § 1; State v. Rogers, 13 Cal. 159; Field's Draft, N. Y. Civ. Code, § 660. § 1405. Succession not claimed, attorney-general to cause to be sold, and proceeds deposited with state treasurer. When succession is not claimed as provided in the preceding section, the superior court, on information, must direct the attorney- general to reduce the property to his possession or that of the state, or to cause it to be sold, and it or its proceeds to be de- posited in the state treasury for the benefit of the person en- titled thereto, to be paid to him, if, within five years after such deposit, he appears in the court in which such information was filed and asks for a judgment or order entitling him thereto. [Amendment approved 1905; Stats. 1905, p. 609.] Legislation § 1405. 1. Enacted March 21, 1872 (based on Stats. 1856, p. 137, §1), and then read: "When succession is not claimed as pro- vided in the preceding section, the district court, on information, must direct the attorney general to reduce the property to his or the pos- session of the state, or to cause the same to be sold, and the same or the proceeds thereof to be deposited in the state treasury for the benefit of such non-resident foreigner, or his le'gal representative, to be paid to him whenever, within five years after such deposit, proof to tlie satisfaction of the state controller and treasurer is produced that he is entitled to succeed thereto." 2. Amendment by Stats. 1901, p. 406; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1905, p. 609; the code commissioner saying, "The design of the amendment is to require the proof of the right to succession to be made in court instead of vesting the controller and treasurer with power to determine the question." Civ. Code — 31 § 1409 CIVIL CODE. 482 § 1406. When the property and estate escheat to the state. When such judgment or order is obtained, a certified copy thereof must be filed "with the state treasurer as his voucher. Thereupon the property must be delivered, or the proceeds paid, to the claimant, on filing his receipt therefor. If no one succeeds to the estate or the proceeds, as herein provided, the property of the decedent devolves and escheats to the people of the state, and must be placed by the state treasurer to the credit of the school fund. [Amendment approved 1905 ; Stats. 1905, p. 610.] Legislation § 1406. 1. Enacted March 21, 1872 (based on Stats. 1856, p. 137, § 1), and then read: "When so claimed, the' evidence and the joint order of the controller and treasurer must be filed by the treas- urer as his voucher, and the property delivered or the proceeds paid to the claimant on filing his receipt therefor. If no one succeeds to the estate or the proceeds, as herein provided, the property of the decedent devolves and escheats to the people of the state, and is placed by the state treasurer to the credit of the school fund." 2. Amendment by Stats. 1901, p. 407; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1905, p. 610; the code commissioner saying, "This section is recast to conform to the proposed amendment to the last section." § 1407. Property escheated subject to charges as other prop- erty. Real property passing to the state under the last section, whether held by the state or its officers, is subject to the same charges and trusts to which it would have been subject if it had passed by succession, and is also subject to all the provi- sions of title eight, part three, of the Code of Civil Procedure. Title VIII, part III, Code Civ. Proc: See §§ 1269-1272. Legislation § 1407. Enacted March 21, 1872; based on Stats. 1869- 70, p. 72; § 1; Stats. 1862, p. 103. §§ 2 et seq.; Stats. 18.5o, p. 222, §§ 1 et seq.; Field's Draft, N. Y. Civ. Code, § 668. § 1408. Successor liable for decedent's obligations. Those who succeed to the property of a decedent are liable for his obligations in the cases and to the extent prescribed by the Code of Civil Procedure. Legislation § 1408. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 669. § 1409. Person convicted of murder of decedent not to suc- ceed. No person who has been convicted of the murder of the decedent shall be entitled to succeed to any portion of his estate ; but the portion thereof to which he Avould otherwise be entitled to succeed descends to the other persons entitled thereto under the provisions of this title. Legislation § 1409. 1. Addition by Stats. 1901, p. 407; unconstitu- tional. See note, § 4, ante. 483 WATER RIGHTS. § 1410a 2. Added by Stats. 1905, p. 610; the code commissioner saying, "This is a new section, and is limited to cases where a conviction for murder has been had." TITLE VIII. Water Rights. § 1410. How rights to water may be acquired. § 1410a. Use of waters flowing out of state. § 1410b. Maintenance of flow of water in streams to canal intakes. § 1411. Appropriation must be for a useful purpose. § 1412. Point of diversion may be changed. § 1413. Water may be turned into natural channels. § 1414. First in time, first in right. § 1415. Notice of appropriation. § 1416. Work to be done in appropriation of waters. § 1417. Completion defined. § 1418. Doctrine of relation applied. § 1419. Forfeiture. § 1420. Eights of present claimant. § 1421. Eecorder to keep book in which to record notices. § 1422. Time within which to commence excavation on public reserva- tion. § 1410. How rights to water may be acquired. All water or the use of water within the state of California is the prop- erty of the people of the state of California, but the right to the use of running water flowing in a river or stream or down a canyon or ravine may be acquired by appropriation in the manner provided by law ; provided, that no water for the gen- eration of electricity or electrical or other power may be ap- propriated for a longer period than twenty-five years, except by a municipal corporation, other than an irrigation district or a lighting district, or by an irrigation district when such electricity, electrical or other power is for use and distribu- tion only within its own limits, and as subsidiary to and mainly for the purpose of serving and carrying out irrigation, or by a lighting district when such electricity, electrical or other power, is for use and distribution only within its own limits. [Amenfliiiont approved 1911; Stats. 1911, p. 821.] Acts relating to irrigation: See General Laws, tit. "Irrigation." Rights of approprlators as between themselves: See § 1414. Posting notice: Post, §§ 1415 et seq. Legislation § 1410. 1. Enacted March 21, 1872, and then read: "The right to the use of running water flowing in a river or stream or down a cafion or ravine may be acquired by appropriation." 2. Amended by Stats. 1911, p. 821. § 1410a. Use of waters flowing out of state. The entire flow of water in any natural stream M'hicb carries water from the state of California into any other state is subject to use in the state of California, under the laws of the state of Califor- § 1411 CIVIL CODE. 48-4 nia, and the right niav be, so far as not already acquired by use in the state of California, acquired and held under the laws of the state of California. The rights to the use of such water held under the laws of the state of California, shall be prior and superior to any rights to the waters of such streams held under the laws of any other state. Legislation § 1410a. Added by Stats. 1913, p. 93. § 1410b. Maintenance of flow of water in streams to canal intakes. The flow of water in any natural stream to the in- take of any canal diverting water therefrom for sale, rental or distribution to the public or for any public use, or the use of any farming neighborhood may be maintained by the person in charge of such use by restoring or repairing any break in the bank of the stream, and by maintaining the banks of the stream, and by preventing by physical structure and other appropriate means any increased flow of water through any natural by-ways of water which carry or threaten to carry such increase of water of the stream away from such intake ; provided, however, that no act herein authorized, when per- formed, shall prevent, retard or obstruct the building there- after of any reclamation, protection or flood control levee and the maintenance thereof; nor shall any act herein authorized prevent the use of any natural channel nor the enlargement thereof, for municipal purposes or for use in connection with any artificial system of drainage, irrigation or flood control not causing the flow of water in the channel at the intake of such canal to be less than the quantity of water the owners and appropriators may have the right to divert into, said in- take ; nor shall any act herein authorized prevent the use of any natural channel or the enlargement thereof to convey water appropriated under the laws of the state of California, where such natural channel shall be designated as the means, or part of the means of conveying the water so appropriated ; nor shall the acts herein authorized limit the powers or authority of the water commission of the state of California to accomplish in its own way the purposes of this section, nor interfere with the construction of any flood control works in accordance with any plan of flood control adopted by the reclamation board. Legislation § 1410b. Added by Stats. 1915, p. 1376. § 1411. Appropriation must be for a useful purpose. The appropriation must be for some useful or beneficial purpose, and when the appropriator or his successor in interest ceases to use it for such a purpose, the right ceases. 485 WATER RIGHTS. § 1415 Appropriation must be evidenced by physical acts: See post, § 1416. Amount of water appropriated: See post, § 1415. Legislation § 1411. Enacted March 21, 1872, § 1412, Point of diversion may be changed. The person entitled to the use may change the place of diversion, if others are not injured by such change, and may extend the ditch, flume, pipe, or aqueduct by which the diversion is made to places beyond that where the first use was made. Changing point of diversion: See post, § 1415. Legislation § 1412. Enacted March 21, 1872. § 1413. Water may be turned into natural channels. The water appropriated may be turned into the channel of an- other stream and mingled with its water, and then reclaimed; but in reclaiming it the water already appropriated by an- other must not be diminished. Legislation § 1413. Entered March 21, 1872, § 1414. First in time, first in right. As betAveen appropri- ators, the one first in time is the first in right. When right begins: See post, § 1418. Use of water, nature of: See ante, § 1411. Change of use: See ante, § 1412. Legislation § 1414. Enacted March 21, 1872. § 1415. Notice of appropriation. A person desiring to ap- propriate water must post a notice, in writing, in a conspicu- ous place at the point of intended diversion, stating therein : 1. That he claims the water there flowing to the extent of (giving the number) inches, measured under a four-inch pres- sure; 2. The purposes for which he claims it, and the place of intended use ; 3. The means by which he intends to divert it, and the size of the flume, ditch, pipe, or aqueduct in which he intends to divert it. A copy of the notice must, within ten days after it is posted, be recorded in the office of the recorder of the county in which it is posted. After filing such copy for record, the place of intended diversion or the place of intended use or the means by which it is intended to divert the water, may })c changed by the person posting said notice or his assigns, if others are not injured by such change. This provision applies to no- tices already filed as well as to notices hereafter filed. [Amendment approved 1903; Stats. 1903, p. 361.] Change of place of diversion: See ante, § 1412. § 1416 CIVIL CODE. 186 Legislation § 1415. 1. Enacted March 21, 1872, the section then ending with the first sentence of the present final paragraph. 2. Amended by Stats. 1903, p. 361, adding two sentences to the final paragraph. § 1416. Work to be done in appropriation of waters. Within sixty days after the notice is posted, the claimant must commence the excavation or construction of the works in which he intends to divert the water, or the survey, road or trail building, necessarily incident thereto, and must prosecute the work diligently and uninterruptedly to completion, unless temporarily interrupted by snows or rain; provided, that if the erection of a dam has been recommended by the Califor- nia debris commission at or near the place where it is intended to divert the water, the claimant shall have sixty days after the completion of such dam in which to commence the exca- vation or construction of the works in which he intends to divert the water ; provided, that whenever any city and county, or any incorporated city or town within this state makes, or has made, or acquires, or has acquired any appro- priation of any of the waters of this state in accordance with the provisions of section 1415 of this code, it shall not be necessary for such city and county, city or toAvn to commence the work for development of more of the water so claimed than is actually necessary for the immediate needs of such city and county, city or town, and it shall be held to be a suffi- cient compliance with the requirements of this chapter, to the full amount of water stated in the notice posted and recorded, for such city and county, city or town to within sixty days make the necessary surveys, or within six months to authorize the issuance of municipal bonds, for the construction of the necessary works designed to supply such city and county, city or town with the water required for immediate use. Any ap- propriation heretofore made by any such city and county, city or town in connection with which surveys were at any time made, or an issue of bonds authorized for the construction of any portion of the Avorks necessary for a diversion of any part of the water appropriated, is hereby confirmed to the full amount of water stated in the original notice or notices. [Amended 1911; Stats. 1911, p. 1419.] Time from whicli right of appropriation becomes vested: See post, § 1418. Legislation § 1416. 1. Enacted March 21. 1872, and then read: "Within sixty daj's after the' notice is posted, the claimant must com- mence the excavation or construction of the works in which he in- tends to divert the water, and must prosecute the work diligently and uninterruptedly to completion, unless temporarily interrupted by snow or rain." 487 WATER RIGHTS. § 1-120 2. Amended by Stats. 1895, p. 70, (1) changing "snow" to "snows," and (2) adding the first proviso, which read as at present. 3. Amended by Stats. 1903, p. 396, in beginning of section adding "or the survey, road or trail building, necessarily incident thereto," the section then ending with the first proviso, as in 1895. 4. Amended by Stats. 1907, p. 780, adding the second and third pro- visos and then read: "Within sixty days after the notice is posted, the claimant must commence the excavation or construction of the works in which he intends to divert the water, or the survey, road or trail building, necessarily incident thereto, and must prosecute the work diligently and uninterruptedly to completion, unless temporarily inter- rupted by snows or rain; provided, that if the erection of a dam has been recommended by the' California debris commission at or near the place where it is intended to divert the water, the claimant shall have sixty days after the completion of such dam in which to commence the excavation or construction of the works in which he intends to divert the water; and provided further, that if it shall be necessary, by pro- ceedings in eminent domain, to acquire water rights held by adverse riparian owners or to acquire sites for dams or power plants at the point of intended diversion or the point of intended use, as described in the notice' of appropriation of said water, or if there shall be conflicting claims to the waters so appropriated, then the party so appropriating, or his assigns, shall have sixty days after the determina- tion of legal proceedings by final judgment in which to commence to excavate' or construct the works in v/hieh he intends to divert the water as provided in this section; and provided further, that if suits for such purpose are not already pending at the date of the passage of this act, they shall be commenced within sixty days after this act takes effect, and as to future appropriations of water, within sixty days after notice of such appropriation is posted as required by law, and such proceedings shall be prosecuted diligently to final judgment; but noth- ing in this act shall be construed to revive or renew appropriations of water heretofore made which have been^ abandoned and lost, as against subsequent claimants who have complied with this act." 5. Amended by Stats. 1911, p. 1419. § 1417. Completion defined. By "completion" is meant conducting the waters to the place of intended use. Legislation § 1417. Enacted March 21, 1872. § 1418. Doctrine of relation applied. By a compliance with the above rules the claimant's right to the use of the water relates back to the time the notice was posted. Legislation § 1418. Enacted March 21, 1872. § 1419. Forfeiture. A failure to comply with such rules deprives the claimants of the right to the use of the water as against a subsequent claimant who complies therewith. Legislation § 1419. Enacted March 21, 1872. § 1420. Rights of present claimant. Persons who have heretofore claimed tlie right to water, and who have not con- structed works in which to divert it, and M^ho have not diverted nor applied it to some useful purpose, must, after this title § 1424 CIVIL CODE. 488 takes effect, and M-ithin twenty days thereafter, proceed as in this title provided, or their right ceases. Legislation § 1420. Enacted March 21, 1872. § 1421. Recorder to keep book in which to record notices. The recorder of each county must keep a book, in which he must record the notices provided for in this title. Legislation § 1421. Enacted March 21, 1872. § 1422. Time within which to commence excavation on pub- lic reservation. If the place of intended diversion or any part of the route of intended conveyance of water so claimed, be within, and a part of, any national park, forest reservation, or other public reservation, and be so shoAvn in the notice of appropriation of said water, then the claimant shall have sixty days, after the grant of authority to occupy and use such park or reservation for such intended purpose, within which to commence the. excavation or construction of said works; pro- vided that within sixty days after the posting of said notice of appropriation, as provided in section fourteen hundred and fifteen of the Civil Code, the claimant shall in good faith com- mence (and thereafter diligently and continuously, except when temporarily interrupted by snoAv or rain, prosecute to completion) such surveys and other work as under the regu- lations governing such park or reservations, may be required as preliminary to, or for use with, an application for such authority ; and provided also that the claimant shall in good faith on completion of said survey and preliminary work, apply to the officer, board, or body, having charge of such park or reservation, for such authority, and shall thereafter, prosecute said application with reasonable diligence. Acts relating to irrigation: See General Laws, tit. "Irrigation." Legislation § 1422. Added by Stats. 1903, p. 397. The original code § 1422 related to a different subject, reading, "The rights of riparian proprietors are not affected by the provisions of this title," and was repealed by Stats 1887, p. 114, the repealing act containing a proviso, which read, "provided, that the repeal of this section shall not in any way interfere with any rights already vested." TITLE IX. Hydraulic Mining. § 1424. Where hydraulic mining can be carried on. § 1425. Meaning of hydraulic mining. Legislation Title IX. Added by Stats. 1893, p. 337. § 1424. Where hydraulic mining can be carried on. The business of hvdraulic mining mav be carried on within the 489 MINING CLAIMS. TUNNEL, RIGHTS. MILL SITES. § 1426 state of California wherever and whenever the same can be carried on without material injury to the navigable streams, or the lands adjacent thereto. Legislation § 1424. Added by Stats. 1893, p. 3.37. § 1425. Meaning of hydraulic mining. Hydraulic mining, within the meaning;' of this title, is mining by means of the ap- plication of water, under pressure, through a nozzle, against a natural bank. Legislation § 1425. Added by Stats. 1893, p. 337. TITLE X. Mining Claims, Tunnel Rights, and Mill Sites. § 1426. Lode claims, how located. § 1426a. Boundaries. § 1426b. Record of location. § 1426c. Placer claim, location of. § 1426d. Record of location. § 1426e. Tunnel right, location of. § 1426f. Boundaries. § 1426g. Record of location. § 1426h. Amended notice. § 14261. Surveyed claims. § 1426J. Mill site, location of. § 1426k. Record of location. § 14261. Yearly work required. § 1426m. Record of work. § 1426n. Fee for recording affidavits of labor, etc. § 1426o. Delinquent co-owners, notice to. Payment by delinquents. § 1426p. Records to be received in evidence. § 1426q. Copies of records as evidence. § 1426r. Effect on mining districts. § 1426s. Neglect to perform development-work. Legislation Title X. Added by Stats. 1909, p. 313, the title of the act reading, "An Act to amend the Civil Code of California by adding a new title thereto, to be numbered title X, in part IV of division sec- ond, consisting of Sections 1426, 1426a, 1426b, 1426c, 1426d, 1426e, 1426f, ]426g, 1426h, 14261, 1426,i, 1426k, 14261, 1426m, 1426n, 1426o, 1426p, 1426q, 1426r, and 1426s, providing for the manner of locating lode and placer-mining claims, tunnel rights, mill sites, and prescribing the character and amount of assessment-work on mining claims, and pro- viding for proofs of such work, and for the recordation of location notices, and proof of labor, and for the enforcement of contributions from delinquent co-owners of mining claims, and prescribing the duties of county recorders respecting the recording of location notices of, and proofs of labor on, mining claims, tunnel rights, and mill sites, and the fees to be charged therefor, and repealing acts in conflict here- with." § 1426. Lode claims, how located. Any person, a citizen of the United States, or who has declared his intention to become such, who discovers a vein or lode of quartz, or other rock in § 1426c CIVIL CODE. 490 place, bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposit, may locate a claim upon such vein or lode, by defining the boundaries of the claim, in the manner herein- after described, and by posting a notice of such location, at the point of discovery, which notice must contain : First. The name of the lode or claim. Second. The name of the locator or locators. Third. The number of linear feet claimed in length along the course of the vein, each way from the point of discovery, with the width on each side of the center of the claim, and the general course of the vein or lode, as near as may be. Fourth. The date of location. Fifth. Such a description of the claim by reference to some natural object, or permanent monument, as Avill identify the claim located. Legislation § 1426. Added by Stats. 1909, p. 313. § 1426a. Boundaries. The locator must define the bound- aries of his claim so that they may be readily traced, and in no case shall the claim extend more than fifteen hundred feet along the course of the vein or lode, nor more than three hun- dred feet on either side thereof, measured from the center line of the vein at the surface. Legislation § 1426a. Added by Stats. 1909. p. 314. § 1426b. Record of location. Within thirty days after the posting of his notice of location upon a lode mining claim, the locator shall record a true copy thereof in the office of the county recorder of the county in which such claim is situated, for Avhich service the county recorder shall receive a fee of one dollar. Legislation § 1426b. Added by Stats. 1909, p. 314. § 1426c. Placer claim, location of. The location of a placer claim shall be made in the following manner: By posting thereon, upon a tree, rock in place, stone, post or monument, a notice of location, containing the name of the claim, name of locator or locators, date of location, number of feet or acre- age claimed, such a description of the claim by reference to some natural object or permanent monument as will identify the claim located, and by marking the boundaries so that they may be readily traced ; provided, that where the United States survey has been extended over the land embraced in the loca- tion, the claim may be taken by legal subdivisions and no other reference than those of said survey shall be required and the boundaries of a claim so located and described need not be 491 MINING CLAIMS. TUNNED RIGHTS. MILL SITES. § 1426h st^^ked or monumented. The description by legal subdivisions shall be deemed the equivalent of marking. Legislation § 1426c. Added by Stats. 1909, p. 314. § 1426d. Record of location. "Within thirty days after the posting of the notice of location of a placer claim, the locator shall record a true copy thereof in the office of the county re- corder of the county in which such claim is situated, for which service the recorder shall receive a fee of one dollar. Legislation § I426d. Added by Stats. 1909, p. 314. § 1426e. Tunnel rig'ht, location of. The locator of a tunnel right or location, shall locate his tunnel right or location by posting a notice of location at the face or point of commence- ment of the tunnel, which must contain : First. The name of the locator or locators. Second. The date of the location. Third. The proposed course or direction of the tunnel. Fourth. A description of the tunnel, with reference to some natural object or permanent monument as shall identify the claim or tunnel right. Legislation § 1426e. Added by Stats. 1909, p. 314. § 1426f. Boundaries. The boundary lines of the tunnel shall be established by stakes or monuments placed along the lines at an interval of not more than six hundred feet from the face or point of commencement of the tunnel to the termi- nus of three thousand feet therefrom. Legislation § 1426f. Added by Stats. 1909, p. 314. § 1426g\ Record of location. "Within thirty days after the posting the notice of location of the tunnel right or location, the locator shall record a true copy thereof, in the office of the county recorder of the county in which such claim is sit- uated, for Avhich service the recorder shall receive a fee of one dollar. Legislation § 1426g. Added by Stats. 1909, p. 314. § 1426h, Amended notice. Tf at any time the locator of any mining claim heretofore or hereafter located, or his as- signs, shall apprehend that his original location notice was de- fective, erroneous, or that the requirements of the law had not been complied with before filing; or in case the original notice was made prior to the passage of this act, and he shall be desirous of securing the l)enefit of this act, such locator, or his assigns, may file an additional notice, subject to the pro- visions of this act; provided, that such amended location notice does not interfere with the existing rights of others at the time of posting and filing such amended location notice, § 142 6in CIVIL CODE. 492 and no siicli amended location notice or the record thereof, shall preclude the claimant, or claimants from proving any such title as he or they may have held under previous locations. Legislation § 14261i. Added by Stats. 1909, p. 31.5. § 14261. Surveyed claims. Where a locator, or his assigns, has the boundaries and corners of his claim established by a United States deputy mineral survey, or a licensed surveyor of this state, and his claim connected with the corner of the public or minor surveys of an established initial point, and incorporates into the record of the claim, the field-notes of such survey, and attaches to and files with such location notice, a certificate of the surveyor, setting forth : first, that said sur- vey was actually made by him, giving the date thereof ; second, the name of the claim surveyed and the location thereof; third, that the description incorporated in the declaratory statement is sufficient to identify; such survey and certificate becomes a part of the record, and such record is prima facie evidence of the facts therein contained. Legislation § 14261. Added by Stats. 1909, p. 315. § 1426 j. Mill site, location of. The proprietor of a vein or lode claim or mine, or the owner of a quartz-mill or reduction- works, or any person qualified by the laws of the United States, may locate not more than five acres of non-mineral land as a mill site. Such location shall be made in the same manner as hereinbefore required for locating placer claims. Legislation § 1426J. Added by Stats. 1909, p. 315. § 1426k. Record of location. The locator of a mill site claim or location shall, within thirty days from the date of his location, record a true copy of his location notice with the county recorder of the county in which such location is situ- ated, for which service the recorder shall receive a fee of one dollar. Legislation § 1426k. Added by Stats. 1909, p. 315. § 14261. Yearly v^ork required. The amount of work done or improvements made during each year to hold possession of a mining claim shall be that prescribed by the laws of the United States, to wit : One hundred dollars annually. Legislation § 14261. Added by Stats. 1909, p. 315. § 1426in. Record of work. Wlienever mine-owner, com- pany, or corporation shall have performed the labor and made the improvements required by law upon any mining claim, the person in whose behalf such labor was performed or improve- ments made, or some one in his behalf, shall within thirty 493 MINING CLAIMS. TUNNEL RIGHTS. MILL SITES. § 1426o days after the time limited for performing such labor or mak- ing such improvements make and have recorded by the county recorder, in books kept for that purpose, in the county in which such mining claim is situated, an affidavit setting forth the value of labor or improvements made, the name of the claim, and the name of the owner or claimant of said claim at whose expense the same was made or performed. Such affidavit, or a copy thereof, duly certified by the county recorder, shall be prima facie evidence of the performance of such labor or the making of such improvements, or both. Legislation § 1426m. Added by Stats. 1909, p. 315. § 1426n. Fee for recording- affidavits of labor, etc. For re- cording the affidavit herein required, the county recorder shall receive 'a fee of ten cents per folio, twenty cents for indorse- ment and ten cents for indexing the name of each claim and each owner. [Amendment approved 1915; Stats. 1915, p. 734.] Legislation § 1426n. 1. Added by Stats. 1909, p. 316 and then read: "For recording the affidavit herein required, the county recorder shall receive a fee of fifty cents." 2. Amended by Stats. 1915, p. 734. § 1426o. Delinquent co-owners, notice to. Payment by de- linquents. Whenever a co-owner or co-owners of a mining claim shall give to a delinquent co-owner or co-owners the notice in writing or notice by publication provided for in sec- tion two thousand three hundred and twenty-four, Revised Statutes of the United States, an affidavit of the person giving such notice, stating the time, place, manner of service, and by whom and upon whom such service was made, shall be attached to a true copy of such notice, and such notice and affidavit must be recorded in the office of the county recorder, in books kept for that purpose, in the county in which the claim is situated, within ninety days, after the giving of such notice; for the recording of which said recorder shall receive the same fees as are now alloAved by law for recording deeds ; or if such notice is given by publication in a newspaper, there shall be attached to a printed copy of such notice an affidavit of the printer or his foreman, or principal clerk of such paper, stating the date of the first, last and each insertion of such notice therein, and where the newspaper was published during that time, and the name of such newspaper. Such affidavit and notice shall be recorded as aforesaid, within one hundred and eighty days after the first publication thereof. The original of such notice and affidavit, or a duly certified copy of the record thereof, shall be prima facie evidence that the delinquent mentioned in section two thousand three hundred and twenty-four has failed § 1426q CIVIL CODE. 494 or refused to contribute his proportion of the expenditure re- quired by that section, and of the service of publication of said notice ; provided, the writing or affidavit hereinafter provided for is not of record. If such delinquent shall, within the ninety- days required by section two thousand three hundred and twenty-four, aforesaid, contribute to his co-owner or co-owners, his proportion of such expenditures, and also all costs of service of the notice required by this section, whether incurred for publication charges, or otherwise, such co-owner or co-owners shall sign and deliver to the delinquent or delinquents a writ- ing, stating that the delinquent or delinquents by name has within the time required by section two thousand three hun- dred and twenty-four aforesaid, contributed his share for the year , upon the mine, and further stating therein the district, county and state wherein the same is situated, and the book and page where the location notice is recorded, if said mine was located under the provisions of this act; such writing shall be recorded in the office of the county recorder of said county, for which he shall receive the same fees as are now allowed by law for recording deeds. If such co-owner or co- owners shall fail to sign and deliver such Avriting to the delin- quent or delinquents within twenty days after such contribu- tion, the co-owner or co-owners so failing as aforesaid shall be liable to the penalty of one hundred dollars to be recovered by any person for the use of the delinquent or delinquents in any court of competent jurisdiction. If such co-owner or co-owners fail to deliver such writing Avithin said twenty days, the delinquent, with two disinterested persons having personal knowledge of such contribution, may make affidavit setting forth in what manner, the amount of, to whom, and upon what mine, such contribution was made. Such affidavit, or a record thereof, in the office of the county recorder, of the county in which such mine is situated, shall be prima facie evidence of such contribution. Legislation § li26o. Added bj Stats. 1909, p. 316. § 1426p. Records to be received in evidence. The record of any location of a mining claim, mill site or tunnel right, in the office of the county recorder, as herein provided shall be received in evidence, and have the same force and effect in the courts of the state as the original notice. Legislation § 1426p. Added by Stats. 1909, p. 317. § 1426q. Copies of records as evidence. Copies of the records of all instruments required to be recorded by the pro- visions of this act, duly certified by the recorder, in whose cus- tody such records are, may be read in evidence, under the same 495 MINING CLAIMS. TUNNEL RIGHTS. MILL SITES. § 1426s circumstances and rules as are now, or may be hereafter pro- vided by law, for using copies of instruments relating to real estate, duly executed or acknowledged or proved and recorded. Legislation § 14r26q. Added by Stats. 1909, p. 317. § 1426r. Effect on mining" districts. The provisions of this act shall not in any manner be construed as affecting or abolish- ing any mining district or the rules and regulations thereof within the state of California. Legislation § 1426r. Added by Stats. 1909, p. 317. § 1426s. Neglect to perform development-work. The fail- ure or neglect of any locator of a mining claim to perform development-work of the character, in the manner and within the time required by the laws of the United States, shall dis- qualify such locators from relocating the ground embraced in the original location or mining claim or any part thereof under the mining laws, within three years after the date of his origi- nal location and any attempted relocation thereof by any of the original locators shall render such location void. Legislation § 1426s. Added by Stats. 1909, p. 317. DIVISION THIRD. ♦ Part I. Obligations in General, §§ 1427-1543. II. Contracts. §§ 1549-1701. III. Obligations Imposed BY Law. §§1708-1715. IV. Obligations Arising from Particular Trans- actions. §§ 1721-3268. Civ. Code— 32 (497) 499 DEFINITION AND CREATION OF OBLIGATIONS. § 1428 PART I. OBLIGATIONS IN GENERAL. Title I. Definition of Obligations. §§ 1427, 1428. II. Interpretation op Obligations. §§ 1429-1451. III. Transfer of Obligations. §§ 1457-1468. IV. Extinction of Obligations. §§ 1473-1543. TITLE I. Definition of Obligations. § 1427. Obligation, what. § 1428. How created and enforced. § 1427. Obligation, what. An obligation is a legal duty, by which a person is bound to do or not to do a certain thing. Similar provision: Code Civ. Proc, § 26. Legislation § 1427. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 670. § 1428. How created and enforced. An obligation arises either from : One. The contract of the parties; or. Two. The operation of law. An obligation arising from operation of law may be enforced in the manner provided by law, or by civil action or proceeding. [Amendment approved 1874; Code Amdts, 1873-74, p. 239.] Obligation, defined: Code Civ, Proc, § 26. Legislation § 1428. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 671), and then read: "An obligation arises either from: 1. The contract of the parties; or, 2. The operation of law." 2. Amended by Code Amdts. 1873-74, p, 239. § 1431 CIVIL CODE. 500 TITLE II. Interpretation of Obligations. Chapter I. General Eules of Interpretation. § 1429. II. Joint or Several Obligations. §§ 1430-1432. III. Conditional Obligations. §§ 1434-1442. IV. Alternative Obligations. §§ 1448-1451. CHAPTER I. General Rules of Interpretation. § 1429. General rules. § 1429. General rules. The rules which govern the inter- pretation of contracts are prescribed by part two of this divi- sion. Other obligations are interpreted by the same rules by which statutes of a similar nature are interpreted. Interpretation of contracts: See post, §§ 1635-1661. Legislation § 1429. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 672. CHAPTER II. Joint or Several Obligations. § 1430. Obligations, joint or several, etc. § 1431. When joint. § 1432. Contribution between joint parties. § 1430. Obligations, joint or several, etc. An obligation im- posed upon several persons, or a right created in favor of sev- eral persons, may be : 1. Joint ; 2. Several ; or, 3. Joint and several. Legislation § 1430. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 673. § 1431. When joint. An obligation imposed upon several persons, or a right created in favor of several persons, is pre- sumed to be joint, and not several, except in the sp'ecial cases mentioned in the title on the interpretation of contracts. This presumption, in the case of a right, can be overcome only by express words to the contrary. Promise joined in by several, all of whom receive some benefit, is presumed to be joint and several: See post, § 1659. Promise in the singular, but executed by several, is presumed to be joint and several: Post, § 1660. Legislation § 1431. Enacted March 21. 1872, based on Field's Draft, N. Y. Civ. Code, § 674. 501 CONDITIONAL OBLIGATIONS. § 1438 § 1432. Contribution between joint parties. A party to a joint, or joint and several obligation, wlio satisfies more than liis share of the claim against all, may require a proportionate contribution from all the parties joined with him. Siirety acquires rights of creditors: See post, § 2848. Legislation § 1432. Plnaeted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 675. CHAPTER TTI. Conditional Oliligations. § 1434. Obligation, when conditional. § 1436. Conditions, kinds of. § 1436. Condition precedent. § 1437. Conditions concurrent. § 1438. Condition subsequent. § 1439. Performance, etc., of conditions, when essential. § 1440. When performance, etc., excused. § 1441. Impossibje or unlawful conditions void. § 1442. Conditions involving forfeiture, how construed. § 1434. Obligation, when conditional. An obligation is con- ditional, when the rights or duties of any party thereto depend upon the occurrence of an uncertain event. Legislation § 1434. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 676. § 1435. Conditions, kinds of. Conditions may be precedent, concurrent, or subsequent. Conditions of ownership: See ante, §§ 707 et seq. Conditional legacies: See ante, §§ 1345, 1346. Conditions precedent: See post, § 1436. Conditions concurrent: See post, § 1437. Conditions subsequent: See post, § 1438. Legislation § 1435. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 677. § 1436. Condition precedent. A condition precedent is one which is to be performed before some right dependent thereon accrues, or some act dependent thereon is performed. Unlawful condition precedent: See ante, § 709. Conditions precedent: See ante, §§ 707, 708, 1346. Legislation § 1436. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 678. § 1437. Conditions concurrent. Conditions concurrent are those which are mutually dependent, and are to be performed at the same time. Legislation § 1437. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 679. § 1438. Condition subsequent. A condition subsequent is one referring to a future event, upon the happening of which M, § 1442 CIVIL CODE. 502 the obligation becomes no longer binding upon the other party, if he chooses to avail himself of the condition. Conditions subsequent: See ante, §§ 708, 1349. Legislation § 1438. EDacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 680. § 1439. Performance, etc., of conditions, when essential. Before any party to an obligation can require another party to perform any act under it, he must fulfill all conditions pre- cedent thereto imposed upon himself; and must be able and offer to fulfill all conditions concurrent so imposed upon him on the like fulfillment by the other party, except as provided by the next section. Concurrent or precedent conditions, performance of: See post, § 1498. Legislation § 1439. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 681. § 1440. When performance, etc., excused. If a party to an obligation gives notice to another, before the latter is in de- fault, that he will not perform the same upon his part, and does not retract such notice before the time at which performance upon his part is due, such other party is entitled to enforce the obligation without previously performing or offering to per- form any conditions upon his part in favor of the former party. Refusal to accept performance before the time to perform, is equivalent to an offer of performance and refusal: Post, § 1515. Excuse of performance: See post, § 1511. Legislation § 1440. Enacted March 21, 1872; based on Field's Draft. N". Y. Civ. Code, § 6S2. § 1441. Impossible or unlawful conditions void. A condi- tion in a contract, the fulfillment of which is impossible or un- lawful, within the meaning of the article on the object of con- tracts, or which is repugnant to the nature of the interest created by the contract, is void. Object of contracts: See post, §§ 1595 et seq. Unlawful conditions: See ante, §§ 709 et seq. Conditions, when impossible, within the meaning of §1441: See post, §§ 1596 et seq. Legislation § 1441. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 683. § 14^. Conditions involving forfeiture, how construed. A condition involving a forfeiture must be strictly interpreted against the party for whose benefit it is created. Legislation § 1442. Enacted March 21. 1872; based on Field's Draft. N. Y. Civ. Code, § 684. 503 ALTERNATIVE OBLIGATIONS. § 1451 CHAPTER IV. Alternative Obligations. § 1448. Who has the right of selection. § 1449. Right of selection, how lost. § 1450. Alternatives indivisible. § 1451. Nullity of one or more of alternative obligations. § 1448. Who has the right of selection. If an obligation requires the performance of one of two acts, in the alternative, the party required to perform has the right of selection, unless it is otherwise provided by the terms of the obligation. Legislation § 1448. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 685. § 1449. Right of selection, how lost. If the party having the right of selection between alternative acts does not give notice of his selection to the other party within the time, if any, fixed by the obligation for that purpose, or, if none is so fixed, before the time at Avhich the obligation ought to be performed, the right of selection passes to the other party. Legislation § 1449. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 686. § 1450. Alternatives indivisible. The party having the right of selection between alternative acts must select one of them in its entirety, and cannot select part of one and part of another Avithout the consent of the other party. Legislation § 1450. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 687. § 1451. Nullity of one or more of alternative obligations. If one of the alternative acts required by an obligation is such as the law will not enforce, or becomes unlawful, or impos- sible of performance, the obligation is to be interpreted as though the other stood alone. Legislation § 1451. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 688. § 1460 civiii CODE. 504 TITLE III. Transfer of Obligations. §" 1457. Burden of obligation not transferable. § 1458. Eights arising out of obligation transferable. § 1459. Non-negotiable instruments may be transferred. § 1460. Covenants running with land, what. § 1461. What covenants run with land. § 1462. Same. § 1463. Same. § 1464. What covenants run with land when assigns are named. § 1465. Who are bound by covenants. § 1466. Who are not. § 1467. Apportionment of covenants. § 146S. Transfer of obligations. Covenants to run with land. § 1457. Burden of obligation not transferable. The burden of an obligation may be transferred with the consent of the party entitled to its benefit, but not otherwise, except as pro- vided by section fourteen hundred and sixty-six. Legislation § 1457. Enacted March 21, 1872; based on Field's Draft. X. Y. Civ. Code, § 689. § 1458. Rights arising- out of obligation transferable. A right arisiiig out of an obligation is the property of the person to whom it is due, and may be transferred as such. Assignment of things in action: See ante, § 954. Legislation § 1458. Enacted March 21. 1872; based on Field's Draft, X. Y. Civ. Code, § 690. § 1459. Non-negotiable instruments may be transferred. A non-negotiable written contract for the payment of money or personal property may be transferred by indorsement, in like manner with negotiable instruments. Such indorsement shall transfer all the rights of the assignor Under the instrument to the assignee, subject to all equities and defenses existing in favor of the maker at the time of the indorsement. Negotiable instruments, what are: See post, §§ 3087 et seq. Legislation § 1459. Enacted March 21. 1872. § 1460. Covenants running with land, what. Certain cov- enants, contained in grants of estates in real property, are ap- purtenant to such estates, and pass witlf them, so as to bind the assigns of the covenantor and to vest in the assigns of the covenantee, in the same manner as if they had personally entered into them. Such covenants are said to run with the land. Implied covenants: See ante, § 1113. * 505 ALTERNATIVE OBLIGATIONS. § 1465 Covenants running with land: See succeeding sections of this title, especially §§ 1462, 1464. Legislation § 1460. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 691. § 1461. What covenants run w^ith land. The only covenants which run with the land are those specified in this title, and those which are incidental thereto. Legislation § 1461. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 692. § 1462. Same. Every covenant contained in a grant of an estate in real property, which is made for the direct benefit of the property, or some part of it then in existence, runs with the land. Covenants running with the land: See post, §§ 1463, 1468. Effect of transfers, generally: See ante, §§ 1083 et seq. Legislation § 1462. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 693. § 1463. Same. The last section includes covenants ' ' of war- 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 grantee. Covenants running with the land: See ante, § 1462; post, § 1468. Damages for breach of above covenants: See post, § 3304. Letter of real property to secure ctuiet possession to hirer: See post, § 1927. Legislation § 1463. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 694. § 1464. What covenants run with land v^^hen assigns are named. A covenant for the addition of some new thing to real property, or for the direct benefit of some part of the property not then in existence or annexed thereto, when contained in a grant of an estate in such property, and made by the covenantor expressly for his assigns or to the assigns of the covenantee, runs with lanS so far only as the assigns thus mentioned are concerned. Covenants running with land: See ante, §§ 1460 et seq. Legislation § 1464. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 695. § 1465. Who are bound by covenants. A covenant running with the land binds those only who acquire the whole estate of the covenantor in some part of the property. Legislation § 1465. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 696. § 1468 CIVIL CODE. 506 § 1466. Who are not. No one, merely by reason of having acquired an estate subject to a covenant running with the land, is liable for a breach of the covenant before he acquired the estate, or after he has parted Avith it or ceased to enjoy its benefits. Legislation § 1466. Enacted March 21, 1872; based on Field's Draft, X. Y. Civ. Code, § 697. § 1467. Apportionment of covenants. Where several per- sons, holding by several titles, are subject to the burden or entitled to the benefit of a covenant running with the land, it must be apportioned among them according to the value of the property subject to it held by them respectively, if such value can be ascertained, and if not, then according to their re- spective interests in point of quantity. Legislation § 1467. Enacted March 21, 1872; based on Field's Draft. N. y. Civ. Code, § 698. § 1468. Transfer of obligations. Covenants to run with land. A covenant made by the owner of land with the owner of other land to do or refrain from doing some act on his own land, which doing or refraining is expressed to be for the benefit of the land of the covenantee, and which is made by the cov- enantor expressly for his assigns or to the assigns of the Covenantee, runs with hoth of such parcels of land. Covenants running with the land: See ante, §§ 1462, 1463. Legislation § 1468. 1. Addition bv Stats. 1901, p. 407; unconstitu- tional. See note, § 4, ante. 2. Added by Stats. 1905, p. 610; the code commissioner saying, "This is a new section, and is designed to remove any doubt that covenants of the kind mentioned therein run with the land." TITLE IV. Extinction of Obligations, Chapter I. Performance. §§ 147.3-1479. II. Offer of Performance. §§ 1485-1505. ni. Prevention of Performance or Offer. §§ 15J.1-1515. IV. Accord and Satisfaction. §§ 1521-1524. V. Novation. §§ 1530-1533. VI. Eelease. §§ 1541-1543. CHAPTER I. Performance. § 1473. Obligation extinguished by performance. § 1474. Performance b}^ one of several joint debtors. § 1475. Performance to one of joint creditors. § 1476. Effect of directions by creditors. § 1477. Partial performance. § 1478. Payment, what. § 1479. Application of general performance. 507 PERFORMANCE OF OBLIGATIONS. § 1478 § 1473. Obligation extinguished by performance. Full per- formance of an obligation, by the party whose duty it is to perform it, or by any other person on his behalf, and with his assent, if accepted by the creditor, extinguishes it-. Legislation § 1473. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 699. 2. Amendment by Stats. 1901, p. 407; unconstitutional. See note, § 4, ante. § 1474. Performance by one of several joint debtors. Per- formance of an obligation, by one of several persons who are jointly liable under it, extinguishes the liability of all. Legislation § 1474. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Cod^, § 700. § 1475. Performance to one of joint creditors. An obliga- tion in favor of several persons is extinguished by performance rendered to any of them, except in the case of a deposit made by owners in common, or in joint ownership, which is regulated by the title on deposit. Joint deposit: See post, § 1828. Legislation § 1475. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 701. § 1476. Effect of directions by creditors. If a creditor, or any one of two or more joint creditors, at any time directs the debtor to perform his obligation in a particular manner, the obligation is extinguished by performance in that manner, even though the creditor does not receive the benefit of such per- formance. Legislation § 1476. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 702. § 1477. Partial performance. A partial performance of an indivisible obligation extinguishes a corresponding proportion thereof, if the benefit of such performance is voluntarily re- tained by the creditor, but not otherwise. If such partial per- formance is of such a nature that the creditor cannot avoid retaining it without injuring his own property, his retention thereof is not presumed to be voluntary. Part performance, effect of: See post, §§ 1486, 1524, 2822. Legislation § 1477. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 703. § 1478. Payment, what. Performance of an obligation for the delivery of money oidy, is called payment. Legislation § 1478. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 704. k^ § 1479 CIVIL CODE. 508 § 1479. Application of general performance. AVhere a debtor, under several obligations to another, does an act, by way of performance, in whole or in part, which is equally applicable to tAvo or more of such obligations, such performance must be applied as follows : One. If, at the time of performance, the intention or desire of the debtor that such performance should be applied to the extinction of any particular obligation, be manifested to the creditor, it must be so applied. Two. If no such application be then made, the creditor, within a reasonable time after such performance, may apply it toward the extinction of any obligation, performance of which was due to him from the debtor at the time of such per- formance ; except that if similar obligations were due to him both individually and as a trustee, he must, unless otherwise directed by the debtor, apply the performance to the extinction of all such obligations in equal proportion ; and an application once made by the creditor cannot be rescinded without the consent of [the] debtor. Three. If neither party makes such application within the time prescribed herein, the performance must be applied to the extinction of obligations in the following order ; and, if there be more than one obligation of a particular class, to the extinc- 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 under- taking. 5. Of an obligation secured by a lien or collateral undertak- ing. [Amendment approved 1874 ; Code Anidts. 1873-74, p. 239.] Legislation § 1479. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 705), and then read: "Where a debtor, under several obligations to another, does an act, by way of performance, which is equally applicable to' two or more of such obligations, such performance is applied as follows: 1. If, at the time of performance, the intention or desire of the' debtor that such performance should be applied to the extinction of any particular obligation, is manifested to the creditor, it is so applied; 2. If no such application is then made, the creditor, within a reasonable time after such performance, may apply it toward the extinction of any obligation, performance of which was due to him from the debtor at the time of such perform- ance; except that if similar obligations were due to him both individ- ually and as a trustee, he must, unless otherwise directed by the debtor, apply the performance to the extinction of all such obligations in equal proportion; and an application once made by the creditor cannot be rescinded without the consent of the debtor; 3. If neither party makes such application within the time prescribed herein, the perform- 509 OFFER OF PERFORMANCE OF OBLIGATIONS. § 1486 ance' is applied to the extinction of obligations in the following order; and, if there is more than one obligation of a particular class, to the extinction of all in that class, ratably: (1.) Of an obligation due at the time of performance; (2.) Of an obligation not voidable at the option of the debtor; (3.) Of an obligation secured by a lien or col- lateral undertaking; (4.) Of interest; (5.) Of the obligation earliest in date of maturity; (6.) Of the obligation which it is most for the interest of the debtor to extinguish." 2. Amended by Code Amdts. 1873-74, p. 289. 3. Amendment by Stats. 1901, p 407; unconstitutional. See note, § 4, ante. CHAPTER II. Offer of Performance. § 1485. Obligation extinguished by offer of performance. § 1486. Offer of partial performance. § 1487. By whom to be made. ' § 1488. To whom to be made. ' § 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 delivered not necessary. § 1497. Thing offered to be kept separate. § 1498. Performance of condition precedent. § 1499. Written receipts. § 1500. Extinction of pecuniary obligation. § 1501. Objections to mode of offer. § 1502. Title to thing offered. § 1503. Custody of thing offered. § 1504. Effect of offer on accessories of obligation. § 1505. Creditor's retention of thing which he refuses to accept. § 1485. Obligation extinguished by offer of performance. An obligation is extinguished by an offer of performance, made in conformity to the rules herein prescribed, and with intent to extinguish the obligation. Tender of payment: See post, §§ 1500, 1504. Tender of article passes title: Post, § 1502; and see post, § 1504. Duties of person making tender: See post, § 1503. Tender, deposit of money in court: See Code Civ. Proc, § 1030. Tender of amount due, effect of on costs: See Code Civ. Proc. § 1030. Tender is equivalent to pajnnent on redemption from execution sale: See Code Civ. Proc, § 704. Offer in writing is equivalent to tender: See Code Civ. Proc, § 2074. Legislation § 1485. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 706. § 1486. Offer of partial performance. An offer of partial performance is of no effect. § 1490 CIVIL CODE. 510 Part performance, effect of: See ante, § 1477; post, §§ 1524, 2822. Legislation § 1486. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 707. § 1487. By whom to be made. An offer of performance must be made by the debtor, or by some person on his behalf and with his assent. Legislation § 1487. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 708. § 1488. To whom to be made. An offer of performance must be made to the creditor, or to any one of two or more joint creditors, or to a person authorized by one or more of them to receive or collect what is due under the obligation, if such creditor or authorized person is present at the place where the offer may be made ; and if not, wherever the creditor may be found. [Amendment approved 1873 ; Code Amdts. 1873-74, p. 240.] Where offer may be made: See post, § 1489. Legislation § 1488. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 709. 2. Amended by Code Amdts. 1873-74, p. 240, at end of section, sub- stituting "wherever the creditor may be found" for "then to a no- tary public." § 1489. Where offer may be made. In the absence of an express provision to the contrary, an offer of performance may be made, at the option of the debtor: 1. At any place appointed by the creditor ; or, 2. Wherever the person to whom the offer ought to be made can be found ; or, 3. If such person cannot, with reasonable diligence, be found within this state, and within a reasonable distance from his residence or place of business, or if he evades the debtor, then at his residence or place of business, if the same can, with reasonable diligence, be found within the state; or, 4. If this cannot be done, then at any place within this state. Delivery of personalty: See post, §§ 1753 et seq. As to giving notice of election as to delivery on sales of personalty, see post, § 1756. Legislations 1489. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 710. § 1490. When offer must be made. Where an obligation fixes a time for its performance, an offer of performance must be made at that time, within reasonable hours, and not before nor afterwards. Legislation § 1490. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 711. 511 OFFER OF PERFORMANCE OF OBLIGATIONS. § 1497 § 1491. Same. "Where an obligation does not fix the time for its performance, an offer of performance may be made at any time before the debtor, upon a reasonable demand, has refused to perform. Legislation § 1491. Enacted March 21, 1872; based on Field's Draft N. Y. Civ. Code, § 712. § 1492, Compensation after delay in performance. Where delay in performance is capable of exact and entire compensa- tion, and time has not been expressly declared to be of the essence of the obligation, an offer of performance, accompanied with an offer of such 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 the mean time. Legislation § 1492. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 713. § 1493. Offer to be made in g-ood faith. An offer of per- formance must be made in good faith, and in such manner as is most likely, under the circumstances, to benefit the creditor. Legislation § 1493. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 714. § 1494. Conditional offer. An offer of performance must be free from any conditions which the creditor is not bound, on his part, to perform. Offer of perfonnance upon condition: See post, §§ 1498, 1499. Legislation § 1494. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 715. § 1495. Ability and willingness essential. An offer of per- formance is of no effect if the person making it is not able and willing to perform according to the offer. Legislation § 1495. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 716. § 1496. Production of thing- to be delivered not necessary. The thing to be delivered, if any, need not in any case be act- ually produced, upon an offer of performance, unless the offer is accepted. Legislation § 1496. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 717. § 1497. Thing offered to be kept separate. A thing, when offered by way of performance, must not be mixed with other things from which it cannot be separated immediately and without difficulty. Vendor of personalty must put in condition for delivery: Post §1753. ' § 1503 CIVIL CODE. 512 ' Legislation § 1497. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 718. § 1498. Performance of condition precedent. 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 performance of such condi- tion. Conditions precedent: See ante, § 1439. Perfonnance of concurrent conditions: See ante, § 1439. Legislation § 1498. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Cod^, § 719. § 1499. Written receipts. A debtor has a right to require from his creditor a written receipt for any property delivered in performance of his obligation. Whoever pays entitled to receipt: See Code Civ. Proc, § 2075. Legislation § 1499. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 720. The code commissioners say: "This provision is new. Its propriety should seem scarcely to admit of doubt." § 1500. Extinction of pecuniary oblig-ation. An obligation for the payment of money is extinguished by a due offer of payment, if the amount is immediately deposited in the name of the creditor, with some bank of deposit within this state, of good repute, and notice thereof is given to the creditor. Tender stopping interest: See post, § 1504. Legislation § 1500. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 721. § 1501. Objections to mode of offer. All objections to the mode of an offer of performance, 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 bj^ the creditor, if not then stated. Similar provision, although more specific in its requirements: Code Civ. Proc, § 2076. Legislation § 1501. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 722. § 1502. Title to thing offered. The title to a thing duly offered in performance of an obligation passes to the creditor, if the debtor at the time signifies his intention to that effect. Legislation § 1502. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 723. Des Arts v. Leggett, 16 N. Y. 582; Lamb v. Lathrop, 13 Wend. 95; Rix v. Strong, 1 Eoot, 55; see Smith v. Loomis, 7 Conn. 110. § 1503. Custody of thing- offered. The person offering a thing, other than money, by way of performance, must, if ho means to treat it as belonging to the creditor, retain it as a 513 PREVENTION OF PERFORMANCE OR OFFER. § 1511 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 reasonable diligence he can find a suit- able depositary therefor, until he has deposited it with such person. Depositary for hire: See post, § 1852. Legislation § 1503, Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 724. § 1504. Effect of offer on accessories of obligation. An offer of payment or other performance, duly made, though the title to the thing offered be not transferred to the creditor, stops the running of interest on the obligation, and has the same effect upon all its incidents as a performance thereof. Tender transfers title: See ante, § 1502. Tender bars costs: Code Civ. Proc, § 1030. Effect of offer in writing is the same as tender: Code Civ. Proe., § 2074. Legislation § 1504. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 725. § 1505. Creditor's retention of thing- which he refuses to accept. If anything is given to a creditor by way of perform- ance, which he refuses to accept as such, he is not bound to return it without demand ; but if he retains it, he is a gratuitous depositary thereof. Costs when tender is made hefore suit brought: Code Civ. Proc, § 1030. Gratuitous depositary: See post, §§ 1844 et seq. Legislation § 1505. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 726. CHAPTER HI. Prevention of Performance or Offer. § 1511. What excuses performance, etc. § 1512. Effect of prevention of performance. § 1513. Same. [Repealed.] § 1514. Same. § 1515. Effect of refusal to accept performance before offer. § 1511. What excuses performance, etc. The want of per- formance of an o1)ligation, or of an offer of performance, in whole or in part, or any delay therein, is excused by the follow- ing 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 l^y the operation of law, even though there may have been a stipulation that this shall not be an excuse ; Civ. Code — 33 § 1515 CIVIL CODE. 514 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 Avhich such performance or offer may be made, and not rescinded before that time. Excuse of performance: See ante, § 1440. Legislation § 1511. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 727. § 1512. Effect of prevention of performance. If the per- formance of an obligation be prevented by the creditor, the debtor is entitled to all the benefits which he would have ob- tained if it had been performed bv both parties. [Amendment approved 1874; Code Amdts. 1873-74, p. 240.] Legislation § 1512. 1. Enacted March 21, 1872 (based on Field's Draft, X. Y. Civ. Code, § 72S), and then read: "If the performance of an obligation is prevented by the creditor, the debtor is entitled to all the benefits which he would have obtained by its performance on both 2. Amended by Code Amdts. 1873-74, p. 240. §1513. Same. [Repealed 1874; Code Amdts. 1873-74, p. 240.] Legislation § 1513. 1. Enacted March 21, 1872. 2. Eepealed by Code Amdts. 1873-74, p. 240. § 1514. Same. If performance of an obligation is prevented by any cause excusing performance, other than the act of the creditor, the debtor is entitled to a ratable proportion of the consideration to which he would have been entitled upon full performance, according to the benefit which the creditor re- ceives from the actual performance. Legislation § 1514. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code. § 730. § 1515. Effect of refusal to accept performance before offer. A refusal by a creditor to accept performance, made before an offer thereof, is equivalent to an offer and refusal, unless, before performance is actually due, he gives notice to the debtor of his Avillingness to accept it. Refusal to perform entitles the other party to enforce the obliga- tion, without performance on his part: See ante, § 1440. Legislation § 1515. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 731. I 515 ACCORD AND SATISFACTION. § 1524 CHAPTER IV. Accord and Satisfaction. § 1521. Accord, what. § 1522. Effect of accord. § 1523. Satisfaction, what. § 1524. Part performance. § 1521. Accord, what. An accord is an agreement to ac- cept, in extinction of an obligation, something different from or less than that to which the person agreeing to accept is entitled. [Amendment approved 1874; Code Amdts. 1873-74, p. 240.] Release of oMigations: See post, §§ 1541 et seq. Substituting new obligation for existing one is novation: See post, §§ 1530 et seq. Order on third person, effect of: See post, § 1533. Legislation § 1521. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code. § 732), and then read: "An accord is an agree- ment to accept, in extinction of an obligation, something to which the! person agreeing to accept is not otherwise entitled." 2. Amended by Code Amdts. 1873-74, p. 240. § 1522. Effect of accord. Thongh the parties to an accord are bound to execute it, yet it does not extinguish the obliga- tion until it is fully executed. Legislation § 1522. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 733. § 1523. Satisfaction, what. Acceptance, by the creditor, of the consideration of an accord extinguishes the obligation, and is called satisfaction. Part performance: See infra, § 1524. Legislation § 1523. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 734. § 1524. Part performance. Part performance of an obliga- tion, either before or after a breach thereof, when expressly ac- cepted by the creditor in writing, in satisfaction, or rendered in pursuance of an agreement in writing for that purpose, though without any new consideration, extinguishes the obliga- tion. [Amendment approved 1874; Code Amdts. 1873-74, p. 241.] Part performance: See ante, §§ 1477, 1486; post, § 2822. Legislation § 1524. 1. Enacted March 21, 1872; based on Stats. 1868, p. 31. 2. Amended by Code Amdts. 1873-74, p. 241, adding the words "in writing" in both instances. § 1533 ~ CIVIL CODE. 516 CHAPTER V. Novation. § 1530. Novation, what. § 1531. Modes of novation. § 1532. Novation a contract. § 1533. Eescission of novation. § 1530. Novation, what. Novation is the substitution of a new obligation for an existing one. Novation a contract: See § 1532, infra. Right to sue on contract made for one's benefit: See post, § 1559. Legislation § 1530. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 736. § 1531. Modes of novation. Novation is made : 1. By the substitution of a new obligation between the same parties, with intent to extinguish the old obligation ; 2. By the substitution of a new debtor in place of the old one, with intent to release the latter ; or, 3. By the substitution of a new creditor in place of the old one, with intent to transfer the rights of the latter to the former. Legislation § 1531. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 737. § 1532. Novation a contract. Novation is made by con- tract, and is sul)ject to all the rules concerning contracts in general. Legislation § 1532. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 738. § 1533. Rescission of novation. When the obligation of a third person, or an order upon such person is accepted in satis- faction, the creditor may rescind such acceptance if the debtor prevents such person from complying with the order, or from fulfilling the obligation ; or if, at the time the obligation or order is received, such person is insolvent, and this fact is unknown to the creditor, or if, before the creditor can with reasonable diligence present the order to the person upon whom it is given, he becomes insolvent. [Amendment approved 1874; Code Amdts. 1873-74, p. 241.] Legislation § 1533. 1. Enacted March 21, 1872 (based on Field's Draft N. Y. Civ. Code', § 740), the latter part of the section then read- ing, "or if, before the creditor can with reasonable diligence reach such person, he becomes insolvent." 2. Amended by Code Amdts. 1873-74, p. 241. 517 RELEASE OF OBLIGATIONS. ' § 1543 CHAPTER VI. Release. § 1541. Obligation extinguished by release. § 1542. Certain claims not affected by general release. § 1543. Release of one of several joint debtors. § 1541. Obligation extinguished by release. An obligation is extinguished by a release therefrom given to the debtor by the creditor, upon a new consideration, or in writing, with or without new consideration. Writing imports a consideration: Post, § 1614. Legislation § 1541. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 741. § 1542. Certain claims not affected by general release. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have ma- terially affected his settlement with the debtor. [Amendment approved 1874; Code Amdts. 1873-74, p. 241.] Legislation § 1542. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 742), and then read: "A general release does not ex- tend to claims which the creditor did not know or suspect to exist in ■ his favor at the time of executing the release." 2. Amended by Code Amdts. 1873-74, p. 241. § 1543. Release of one of several joint debtors. A release of one of two or more joint debtors does not extinguish the obligations of any of the others, unless they are mere guar- antors ; nor does it affect their right to contribution from him. Guarantor's liability discharged by what dealings with debtor: See post, § 2819. Rights of sureties: See post, § 2844. Legislation § 1543. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Cod6, § 743. § 1550 CIVIL CODE. 51S PAET II. CONTRACTS. Title I. Nature of a CoNTRiVCT. §§ 1549-1615. II. Manner op Creating Contracts. §§ 1619-1629. III. Interpretation of Contracts. §§ 1635-1661. IV. Unlawful Contracts. §§ 1667-1676. V. Extinction of Contracts. §§ 1682-1701. TITLE I. Nature of a Contract. Chapter I. Definition. §§ 1549, 1550. II. Parties. §§ 1556-1559. ni. Consent. §§ 1565-1589. IV. Object. §§ 1595-1599. V. Consideration. §§ 1605-1615. CHAPTER I. Definition. § 1549. Contract, what. § 1550. Essential elements of contract. § 1549. Contract, what. A contract is an agreement to do or not to do a certain thing. Legislation § 1549. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 744. § 1550. Essential elements of contract. It is essential to the existence of a contract that there slionid be : 1. Parties capable of contracting ; 2. Their consent; 3. A lawful object ; and, 4. A sufficient cause or consideration. Consent: See post, §§ 1565 et seq. Unlawful contracts: See post, § 1667. Consideration: See post, §§ 1605 et seq. Legislation § 1550. Enacted March 21, 1872; based on Eiol.l's Draft, N. Y. Civ. Code, § 745. 619 PARTIES TO CONTRACTS. § 1559 CHAPTER II. Parties. § 1556. Who may contract. § 1557. Minors, etc. § 1558. Identification of parties necessary. § 1559. When contract for benefit of third person may be enforced. § 1556. Who may contract. All persons are capable of con- tracting, except minors, persons of unsound mind, and persons deprived of civil rights. Contracts of infants: See ante, §§33 et seq. Contracts of persons of unsound mind: See ante, §§ 38 et seq. Contracts of married women: See ante, §§ 158, 159, 167. Legislation § 1556. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 746. The code commissioners say: "The disabilities of married women are entirely removed by § 79." § 1557. Minors, etc. Minors and persons of unsound mind, have only such capacity as is defined by part one of division one of this code. Powers of minors: See ante, §§33 et seq. Legislation § 1557. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 747. § 1558. Identification of parties necessary. It is essential to the validity of a contract, not only that the parties should exist, but that it should be possible to identify them. Legislation § 1558. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 748. § 1559. When contract for benefit of third person may be enforced. A contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it. Legislation § 1559. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 749. § 1567 CIVIL CODE. 520 CHAPTER HI.- Consent. § 1565. Essentials of consent. § 1566. Consent, when voidable. § 1567. Apparent consent, when not free. § 1568. When deemed to have been obtained by fraud, etc. § 1569. Duress, what. § 1570. Menace, what. § 1571. Fraud, actual or constructive. § 1572. Actual fraud, what. § 1573. Constructive fraud. § 1574. Actual fraud a question of fact. § 1575. Undue influence, what. § 1576. Mistake, what. § 1577. Mistake of fact. § 1578. Mistake of law. § 1579. Mistake of foreign laws. § 1580. Mutuality of consent. § 1581. Communication of consent. § 1582. Mode of communicating acceptance of proposal. § 1583. When communication deemed complete. § 1584. Acceptance by performance of conditions. § 1585. Acceptance must be absolute. § 1586. Revocation of proposal. § 1587. Eevocation, how made. § 1588'. Eatification of contract void for want of consent. § 1589. Assumption of obligation by acceptance of benefits. § 1565. Essentials of consent. The consent of the parties to a contract must be : 1. Free; 2. Mutual ; and, 3. Communicated by each to the other. Consent, when not free, and. effect: Post, §§ 1566, 1567. Consent, when not mutual: See post, § 1580. Consent, how communicated: See post, §§ 1581 et seq. Legislation § 1565. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code. § 750. § 1566. Consent, when voidable. 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 rescission. Rescission of contracts: See post, §§ 1688 et seq., 3406 et seq. Legislation § 1566. Enacted March 21, 1872; based on Field's Draft, X. Y. riv. Code, § 751. § 1567, Apparent consent, when not free. An apparent consent is not real or free when obtained through : 1. Duress ; 2. Menace ; [\. Fraud; 521 CONSENT. § 1572 4. Undue influence ; or, 5. Mistake. Duress, defined: Post, § 1569. Menace, defined: Post, § 1570. Fraud, defined: Post, § 1571. Undue influence, defined: Post, § 1575. Mistake, defined: Post, §§ 1576, 1577. Rescission, where consent obtained by mistake, duress, menacet, fraud, or undue influence: See post, § 1689. Legislation § 1567. Enacted March 21; 1872; based on Field's Draft, N. Y. Civ. Code, § 752. § 1568. When deemed to have been obtained by fraud, etc. Consent is deemed to have heen obtained through one of the causes mentioned in the last section only when it would not have been given had such cause not existed. Legislation § 1568. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 753. <5 1569. Duress, what. Duress consists in : 1. ITnlawful confinement of the person of the party, or of the husband or wife of such party, or of an ancestor, descend- ant, 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 fraudu- lently obtained, or fraudulently made unjustly harassing or oppressive. Legislation § 1569. E'nacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 754. § 1570. Menace, what. Menace consists in a threa,t : 1. Of such duress as is specified in subdivisions one and three of the last section ; 2. Of unlawful and violent injury to the person or property of any such person as is specified in the last section; or, 3. Of injury to the character of any such person. Legislation § 1570. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 755. § 1571. Fraud, actual or constructive. Fraud is either actual or coiistructive. Legislation § 1571. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 756. § 1572. Actual fraud, what. Aetual fraud, within the mean- ing of this chapter, consists in any of the folloAving acts, com- mitted by a party to the contract, or with his connivance, Avith intent to deceive another party thereto, or to induce him to enter into the contract : § 1576 CIVIL CODE. 522 1. The suggestion, as ^ fact, of that which is not true, by one who does not believe it to be true ; 2. The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true ; 3. The suppression of that which is true, by one having knowledge or belief of the fact ; 4. A promise made without any intention of performing it; or, 5. Any other act fitted to deceive. Fraudulent conveyance a misdemeanor: Pen. Code, § 531. Fraudulent instruments and transfers: See post, §§ 3439 et seq. Rescission of contracts for fraud: See post, § 1689. Deceit: See post, §§ 1709, 1710. Legislation § 1572. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 757. § 1573. Constructive fraud. Constructive fraud consists : 1. In any breach of duty which, Avithout an actually fraudu- lent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him ; or, 2. In any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud. Legislation § 1573. Enacted March 21, 1872; based on Field's Draft, X. Y. Civ. Code-, § 758. § 1574. Actual fraud a question of fact. Actual fraud is ahvays a question of fact. Fraud a question of fact: See post, § 3442. Legislation § 1574. Enacted March 21. 1872; based on Field's Draft, X. Y. Civ. Code, § 759. § 1575. Undue influence, what. Undue influence consists : 1. In the use, by one in whom a confidence is reposed by another, or who holds a real or apjDarent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him ; 2. In taking an unfair advantage of another's weakness of mind; or, 3. In taking a grossly oppressive and unfair advantage of another's necessities or distress. Undue influence vitiating will: See ante, § 1272. Rescission of contracts: See post, §§ 1689, 3406. Legislation § 1575. Enacted March 21. 1872; based on Field's Draft, X. Y. Civ. Code, § 760. § 1576. Mistake, what. Mistake may be either of fact or law. 523 CONSENT. § 1582 Legislation § 1576. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 761. § 1577. Mistake of fact. Mistake of fact is a mistake, not caused by the neglect of a legal duty on the part of the person making the mistake, and consisting in : 1. An unconscious ignorance or forgetfulness of a fact past or present, material to the contract ; or, 2. Belief in the present existence of a thing material to the contract, which does not exist, or in the past existence of such a thing, which has not existed. Legislation § 1577. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 762. § 1578. Mistake of law. Mistake of law constitutes a mis- take, Avithin the meaning of this article, only when it arises from : 1. A misapprehension of the law by all parties, all supposing that they knew and understood it, and all making substantially the same mistake as to the law ; or, 2. A misapprehension of the law by one party, of which the others are aware at the time of contracting, but Avhich they do not rectify. Legislation § 1578. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 763. § 1579. Mistake of foreig'n laws. Mistake of foreign laws is a mistake of fact. Foreign laws, how proved: See Code Civ. Proc, §§ 1900, 1901. Legislation § 1579. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 764. § 1580. Mutuality of consent. Consent is not mutual, unless the parties all agree upon the same thing in the same sense. But in certain cases defined by the chapter on interpretation, they are to be deemed so to agree without regard to the, fact. Interpretation of contracts: See post, §§ 1635 et seq. Legislation § 1580. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 765. § 1581. Comnmnication of consent. Consent can be com- municated Avith effect, only by some act or omission of the party contracting, by which he intends to communicate it, or which necessarily tends to such communication. Legislation § 1581. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 766. § 1582. Mode of communicating- acceptance of proposal. If a proposal prescri1)es any conditions concerning the communi- cation of its acceptance, the proposer is not bound unless they § 1587 CIVIL CODE. 524 are conformed to; but in other cases any reasonable and usual mode may be adopted. Legislation § 1582. Enacted Marcli 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 767. § 1583. When comnmnication deemed complete. Consent is deemed to he fully communicated bet-ween 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. Legislation § 1583. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 768. § 1584. Acceptance by performance of conditions. Perform- ance of the conditions of a proposal, or the acceptance of the consideration offered with a proposal, is an acceptance of the proposal. Legislation § 1584. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 769. § 1585. Acceptance must be absolute. An acceptance must be absolute and unqualified, or must include in itself an ac- ceptance of that character Avhieh the proposer can separate from the rest, and which will conclude the person accepting. A qualified acceptance is a new proposal. Legislation § 1585. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 770. § 1586. Revocation of proposal. A proposal may be re- voked at any time before its acceptance is communicated to the proposer, but not afterwards. Legislation § 1586. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 771. § 1587. Revocation, how made. 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 fifteen hundred and eighty-one and fifteen hundred and eighty- three, before his acceptance has been communicated to the former ; 2. By the lapse of the time prescribed in such proposal for its acceptance, or if no time is so prescribed, the lapse of a reasonable time without communication of the acceptance ; 3. By the failure of the acceptor to fulfill a condition prece- dent to acceptance ; or, 4. By the death or insanity of the proposer. Legislation § 1587. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 772. 525 OBJECT OF CONTRACTS. § 1598 § 1588. Ratification of contract void for want of consent. A contract which is voidable solely for Avant of due consent, may be ratified by a subsequent consent. Legislation § 1588. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 773. § 1589. Assumption of obligation by acceptance of benefits. A voluntary acceptance of the benefit of a transaction is equi- valent to a consent to all the obligations arising from it, so far as the facts are known, or ought to be known, to the person accepting. He who takes benefit must bear burden: See post, § 3521. Legislation § 1589. Enacted March 21, 1872; based on Field's Draft, N. y. Civ. Code, § 774; Bennett v. Judson, 21 N. Y. 23S. CHAPTER IV. •Object of a Contract. • § 1595. Object, what. § 1596. Eequisites of object. § 1597. Impossibility, what. § 1598. When contract wholly void. § 1599. When contract partially void. § 1595. Object, what. The object of a contract is the thing which it is agreed, on the part of the party receiving the con- sideration, to do or not to do. Unlawful contracts: See post, § 1596, and §§ 1667 et seq. Unlawful conditions: See ante, § 1441. Legislation § 1595. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 775; Martin v. McCormick, 8 N. Y. 335. § 1596. Requisites of object. The object of a contract must be lawful when the contract is made, and possible and ascer- tainable by the time the contract is to be performed. Unlawful contracts: See post, §§ 1667 et seq. Legislation § 1596. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 776. § 1597. Impossibility, what. Everything is deemed possible except that which is impossible in the nature of things. Legislation § 1597. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code', § 777. § 1598. When contract wholly void. Where a contract has but a single object, and such ol)ject is unlawful, whether m whole or in part, or wholly impossible of performance, or so vaguely expressed as to be wholly unascertainable, the entire contract is void. '^ Consideration illegal in part: See post, §§ 1599, 1608. § 1607 CIVIL CODE. 526 Legislation § 1598. Enacted March 2], 1872; based on Field's Draft, N. Y. Civ. Code, § 778. § 1599. When contract partially void. Where a contract has several distinct objects, of which one at least is lawful, and one at least is unlawful, in whole or in part, the contract is void as to the latter and valid as to the rest. Contract illegal in part: See ante, § 1598; post, § 1608. Legislation § 1599. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 779. CHAPTER V. Consideration. § 1605. Good consideration, what. § 1606. How far legal or moral obligation is a good consideration. § 1607. Consideration lawful. § 1608. Effect of its illegality. § 1609. Consideration executed ox executory. § 1610. Executory consideration. § 1611. How ascertained. § 1612. Effect of impossibility of ascertaining consideration. § 1613. Same. § 1614. Written instrument presumptive evidence of consideration. § 1615. Burden of proof to invalidate sufficient consideration. § 1605. Good consideration, w^hat. Any benefit conferred, or agreed to be conferred, upon the promisor, by any other per- son, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good considera- tion for a promise. Legislation § 1605. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 780. § 1606. How^ far legal or moral obligation is a good con- sideration. An existing legal obligation resting upon the promisor, or a moral obligation originating in some benefit conferred upon the promisor, or prejudice suffered by the promisee, is also a good consideraion for a promise, to an ex- tent corresponding with the extent of the obligation, but no further or otherwise. Legislation § 1606. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 781. § 1607. Consideration law^ful. The consideration of a con- tract must be lawful within the meaning of section sixteen hundred and sixty-seven. Unlawful contracts: See post, §§ 1667 et seq. Legislation § 1607. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 782. 527 CONSIDERATION OF CONTRACTS. • § 1614 § 1608. Effect of its illegality. If any part of a single con- sideration for one or more objects, or of several considerations for a single object, is unlawful, the entire contract is void. Consideration illegal in part: See ante, §§ 1598, 1599. Legislation § 1608. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 7S3. § 1609. Consideration executed or executory. A considera- tion may be executed or executory, in whole or in part. In so far as it is executory it is subject to the provisions of chapter four of this title. Legislation § 1609. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 784. § 1610. Executory consideration. When a consideration is executory, it is not indispensable that the contract should specify its amount or the means of ascertaining it. It may be left to the decision of a third person, or regulated by any specified standard. Legislation § 1610. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 785. § 1611. How ascertained. When a contract does not deter- mine the amount of the consideration, nor the me'thod by which it is to be ascertained, or when it leaves the aniQunt thereof to the discretion of an interested party, the consideration must be so much money as the object of the contract is reasonably worth. Legislation § 1611. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, §.786. § 1612. Effect of impossibility of ascertaining- consideration. Where a contract provides an exclusive method by which its consideration is to be ascertained, which method is on its face impossible of execution, the entire contract is void. Legislation § 1612. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 787. § 1613. Same. Where a contract provides an exclusive method by which its consideration is to be ascertained, which method appears possible on its face, but in fact is, or becomes, impossible of execution, such provision only is void. Legislation § 1613. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 788. § 1614. Written instrument presumptive evidence of con- sideration. A written instrument is presumptive evidence of a consideration. Distinction between sealed and unsealed instruments abollslied: See post, § 1629. Legislation § 1614. Enacted March 21, 1872. § 1623 CIVIL CODE. 528 § 161.5. Burden of proof to invalidate sufficient considera- tion. The burden of showing a want of consideration sufficient to support an instrument lies with the party seeking to in- validate or avoid it. Recital of consideration in contract, effect of: See Code Civ. Proc, § 1963, subd. 39. Legislation § 1615. Enacted March 21, 1872. TITLE II. Manner of Creating' Contracts. § 1619. Contracts, express or implied. § 1620. Express contract, what. § 1621. Implied contract, what. § 1622. What contracts may be oral. § 1623. Contract not in writing through fraud, may be enforced against fraudulent party. § 1624. What contracts must be written. § 1625. Effect of written contracts. § 1626. Contract in writing, takes effect when. § 1627. Provisions of chapter on transfers of real property. § 1628. Corporate seal, how affixed. § 1629. Provisions abolishing seals made applicable. § 1619. Contracts, express or implied. A contract is either express or implied. Legislation § 1619. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 789. § 1620. Express contract, what. An express contract is ^e, the terms of which are stated in words. Legislation § 1620. Enacted March 21, 1872; based on Field's Draft, K Y. Civ. Code, § 790. § 1621. Implied contract, what. An implied contract is one, the existence and terms of which are manifested by conduct. Obligations imposed by law: See post, §§ 1708 et seq. Legislation § 1621. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 791. § 1622. What contracts may be oral. All contracts may be oral, except such as are specially required by statute to be in writing. Contracts, when to be in writing: See post, §§ 1623, 162-1, 1739; Code Civ. Proc, §§ 1971-1974. Legislation § 1622. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 792. § 1623. Contract not in writing through fraud, may be en- forced against fraudulent party. Where a contract, which is 529 MANNER OF CREATING CONTRACTS. § 1624 required by la^v 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 against the fraudulent party. Statute of frauds: See Code Civ. Proc, §§ 1971-1974. Legislation § 1623. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 793. § 1624. What contracts must be written. The following contracts are invalid, unless the same, or some note or mem- orandum thereof, is 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 mis- carriage of another, except in the cases provided for in section twenty-seven hundred and ninety-four ; 3. An agreement made upon consideration of marriage other than a mutual promise to marry ; 4. An agreement for the sale of goods, chattels, or things in action, at a price not less than two hundred dollars, unless the buyer accepts or receives part of such goods and chattels or the evidences, or some of them, of such things in action, or pays at the time some part of the purchase-money ; 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 sufficient memorandum ; 5. An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein ; and such agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent is in writing, subscribed by the party sought to be charged ; 6. An agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or a commission ; 7. An agreement which by its terms is not to be performed during the lifetime of the promisor, or an agreement to devise or bequeath any property, or to make any provision for any person by will. [Amendment approved 1905 ; Stats. 1905, p. 611.] statute of frauds: See Code Civ. Proc, §§ 1971-1974. Memorandum by auctioneer: See post, § 1798. Sale of realty: See ante, § 1091; post, § 1741. Oiv. Code — 34 § 1626 CIVIL CODE. 530 Fraudulent transfers: See post, § 3440. Sales of personalty: See post, §§1739 et seq. Guaranty: See post, §§ 2793 et seq. Part performance taking case out of statute: See post, § 1741. Oral authorization, sufficiency of: See post, | 2309. Legislation § 1624. 1. Enacted March 21, 1872, and then read: "The folio-wing contracts, or some memorandum thereof, expressing the par- ties, their consent, and the object of the contract, must be in writing, subscribed by the party to be charged thereby, or by his agent for the purpose: 1. An agreement that by its terms cannot be fully performed within one year; 2. An agreement made upon consideration of mar- riage, other than mutual promises to marry." 2. Amended by Code Amdts. 1873-74, p'. 241, and differed from the amendment of 1905 (the present section), in having (1) in introductory paragraph "be" instead of "is" before "in writing"; (2) the section subdivisions designated by cardinal numbers instead of Arabic nu- merals; (3) at end of subd. 2, the words "of this code"; (4) in subd 4, (a) "accept or receive" instead of "accepts or receives," (b) "pay" in- stead of "pays," (c) "by auction" instead of "at auction," and (d), "terms of sale" instead of "terms of the sale"; (5) in subd. 5, "be" instead of "is" before "in writing," the section then ending with this subdivision, subd. 6 being added in 1877-78. 3. Amended by Code Amdts. 1877-78, p 86, (1) changing the cardi- nal numbers of the subdivisions to ordinals, and (2) adding subd. 6, which read as at present. 4. Amendment by Stats. 1901, p. 408; unconstitutional. See note, § 4, ante. 5. Amended by Stats. 1905, p. 611, adding subd. 7; the code commis- sioner saying, "The change consists in the addition of subd. 7. The cases in which it sought to establish by parol evidence alleged agree- ments to provide for a person by will are becoming so numerous as to warrant the assumption that the reasons inducing the original enact- ment of the statute of frauds apply with especial force to agreements of this class and that they ought to be brought within that statute." § 1625. Effect of written contracts. The execution of a contract in -writing, whether the law requires it to be written or not, supersedes all the negotiations or stipulations concern- ing its matter which preceded or accompanied the execution of the instrument. [Amendment approved 1905; Stats. 1905, p. 611.] Writing supersedes oral stipulations: See post, § 1639. Legislation § 1625. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 795), and then had the word "oral" before "negotiations." 2. Amendment by Stats. 1901, p. 408; unconstitutional. See note, § 4. ante. 3. Amended by Stats. 1905, p. 611. § 1626. Contract in writing', takes effect when. A contract in writing takes effect upon its delivery to the party in whose favor it is made, or to his agent. Delivery of transfers in -writing: See, generally, ante, § 1054. Legislation § 1626. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 796. 531 INTERPRETATION OF CONTRACTS. § 1629 § 1627. Provisions of chapter on transfers of real property. The provisions of the chapter on transfers in general, concern- ing the delivery of grants, absolute and conditional, apply to all written contracts. Mode of transfer: See ante, §§ 1052 et seq. Legislation § 1627. Enacted March 21, 1872; based on Field's Draft, N. y. Civ. Code, § 797. § 1628. Corporate seal, how affixed. A corporate or official seal may be affixed to an instrument by a mere impression upon the paper or other material on which such instrument is writ- ten. Seal: See Code Civ. Proc, § 14; Pol. Code, ^14. Legislation § 1628. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 798. § 1629. Provisions abolishing- seals made applicable. All distinctions between sealed and unsealed instruments are abolished. Legislation § 1629. Enacted March 21, 1872. TITLE III. Interpretation of Contracts. § 1635. Uniformity of interpretation. § 1636. Contracts, how to be interpreted. § 1637. Intention of parties, how ascertained. § 1638. Intention to be ascertained from language. § 1639. Interpretation of written contracts. § 1640. Writing, when disregarded. § 1641. Effect to be given to every part of contract. § 1642. Several contracts, when taken together. § 1643. Interpretation in favor of contract. § 1644. Words to be understood in usual sense. § 1645. Technical words. § 1646. Law of place. § 1G47. Contracts explained by circumstances. § 1648. Contract restricted to its evident object. i 1649. Interpretation in sense in which promisor believed promisee to rely. § 1650. Particular clauses subordinate to general intent. § 1651. Contract, partly written and partly printed. § 1652. Kepugnancies, how reconciled. § 1653. Inconsistent words rejected. § 1654. Words to be taken most strongly against whom. § 1655. Reasonable stipulations, when implied. § 1656. Necessary incidents implied. § 1657. Time of performance of contract. § 1658. Time, when of essence. [Repealed.] § 1659. When joint and several. § 1660. Same. § 1661. Executed and executory contracts, what. § 1641 crviL CODE. 532 § 1635. Uniformity of interpretation. All contracts, whether public or private, are to be interpreted by the same rules, ex- cept as otherwise provided by this code. Legislation § 1635. Enacted March 21. 1872; based on Field's Draft, X. Y. Civ. Code, § 800. § 1636. Contracts, how to be interpreted. A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful. Parol evidence to prove intention: See Code Civ. Proc, §§ 1855 et seq. Legislation § 1636. .Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 801. § 1637. Intention of parties, how ascertained. For the pur- pose of ascertaining the intention of the parties to a contract, if otherwise doubtful, the rules given in this chapter are to be applied. Parol evidence with respect to writings: See Code Civ. Proc, §§ ISoo, 1856 et seq. Legislation § 1637. Enacted March 21, 1872; based on Field's Draft, X. Y. Civ. Code, § S02. § 1638. Intention to be ascertained from language. The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity. Legislation § 1638. Enacted March 21, 1872; based on Field's Draft, X. Y. Civ. Code, § Su3. § 1639. Interpretation of written contracts. When a con- tract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible; subject, however, to the other provisions of this title. Parol evidence in construing writings: See Code Civ. Proc, §§ 1855 et seq. Legislation! 1639. Enacted March 21, 1872,; based on Field's Draft, X. Y. Civ. Code, § 804. § 1640. Writing, when disregarded. When, through fraud, mistake, or accident, a written contract fails to express the real intention of the parties, such intention is to be regarded, and the erroneous parts of the writing disregarded. Evidence of circumstances: See Code Civ. Proc, § 1856. Legislation § 1640. Enacted March 21, 1872; based on Field's Draft, X. Y. Civ. Code, § 805. § 1641. Effect to be given to every part of contract. The whole of a contract is to be taken together, so as to give effect I 533 INTEEPRETATION OF CONTRACTS. § 1647 to every part, if reasonably practicable, each clause helping to interpret the other. Legislation § 1641. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 80G. § 1642. Several contracts, when taken together. Several contracts relating to the same iiiattri's, l)et\voeii the same par- ties, and made as parts of substantially one transaction, are to be taken together. Legislation § 1642. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code. § 807. § 1643. Interpretation in favor of contract. A contract must receive such an interpretation as will make it lawful, opera- tive, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties. Legislation § 1643. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § SOS. § 1644. Words to be understood in usual sense. The words of a contract are to be understood in their ordinary and popu- lar sense, rather than according to their strict legal meaning; unless used by the parties in a technical sense, or unless a special meaning is given to them by usage, in Avhich case the latter must be followed. Legislation § 1644. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Co'de, § 809. § 1645. Technical words. Technical words are to be in- terpreted as usually understood by persons in the profession or i)usiness to which they relate, unless clearly used in a differ- ent sense. Technical words, how construed: See ante, §§ 13, 1327. Legislation § 1645. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 810. § 1646. Law of place. A contract is to be interpreted ac- cording to the law and usage of the place where it is to be performed ; or, if it does not indicate a place of performance, according to the law and usage of the place Avhere it is made. Usage: See Code Civ. Proc, § 1870, subd. 12. Legislation § 1646. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 811. § 1647. Contracts explained by circumstances. A contract may be explained l)y reference to the circumstances under which it was made, and the mattei" to which it relates. Legislation § 1647. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, §812. § 1653 CIVIL CODE, 534 § 1648. Contract restricted to its evident object. However broad may be the terms of a contract, it extends only to those things concerning which it appears that the parties intended to contract. Legislation § 1648. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 813. ' § 1649. Interpretation in sense in which promisor believed promisee to rely. If the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it. Which construction preferred: Code Civ. Proc, § 1864. Interpretation against promisor: See post, § 1654. Legislation § 1649. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 814. § 1650. Particular clauses subordinate to general intent. Particular clauses of a contract are subordinate to its general intent. Repugnancies and inconsistencies: See infra, §§ 1652, 1653. Legislation § 1650. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 815. § 1651. Contract, partly written and partly printed. Where a contract is partly Avritten and partly printed, or where part of it is written or printed under the special directions of the parties, and with a special view to their intention, and the remainder is copied from a form originally prepared without special reference to the particular parties and the particular contract in question, the written parts control the printed parts, and the parts w^hich are purely original control those which are copied from a form. And if the two are absolutely repugnant, the latter must be so far disregarded. Legislation § 1651. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 816. § 1652. Repugnancies, how reconciled. Repugnancy in a contract must be reconciled, if possible, by such an interpreta- tion as wnll give some effect to the repugnant clauses, sub- ordinate to the general intent and purpose of the whole con- tract. Legislation § 1652. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 817. § 1653. Inconsistent words rejected. AVords in a contract which are wholly inconsistent with its nature, ot with the main intention of the parties, are to be rejected. Legislation § 1653. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 818. 535 INTERPRETATION OP CONTRACTS. § 1659 § 1654. Words to be taken most strongly ag-ainst whom. In cases of uncertainty not removed by the preceding rules, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist. The promisor is presumed to be such party; except in a contract between a public officer or body, as such, and a private party, in which it is presumed that all uncertainty was caused by the private party. Interpretation against promisor: See ante, § 1649. Interpretation of doubtful words: See ante, § 1068. Legislation § 1654. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 819. § 1655. Reasonable stipulations, v/hen implied. Stipula- tions which are necessary to make a contract reasonable, or conformable to usage, are implied, in respect to matters con- cerning Avhich the contract manifests no contrary intention. Legislation § 1655. Enacted March 21, 1872; based ou Field's Draft, N. Y. Civ. Code, § 820. § 1656. Necessary incidents implied. All things that in law or usage are considered as incidental to a contract, or as neces- sary to carry it into effect, are implied therefrom, unless some of them are expressly mentioned therein, when all other things of the same class are deemed to be excluded. Legislation § 1656. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 821. § 1657. Time of performance of contract. If no time is specified for the performance of an act required to be per- formed, a reasonable time is allowed. If the act is in its nature capable of being done instantly — as, for example, if it consists in the payment of money only — it must be performed imme- diately upon the thing to be done being exactly ascertained. Legislation § 1657. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 822. § 1658. Time, when of essence. [Repealed 1874 ; Code Amdts. 187.3-74, p. 242.] Legislation § 1658. 1. Enacted March 21, 1872. 2. Repealed by Code Amdts. 1873-74, p. 242. § 1659. When joint and several. Where all the parties Avho unite in a promise receive some benefit from the consideration, whether past or present, their promise is presumed to be joint and several. Contracts. Joint and several: See ante, §§ 1430 et seq. Legislation § 1659. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 824. § 1669 CIVIL CODE. 536 § 1660. Same. A promise, made in the singular number, but executed by several persons, is presumed to be joint and several. Legislation § 1660. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 825. § 1661. Executed and executory contracts, what. An exe- cuted contract is one, the object of which is fully performed. All others are executory. Legislation § 1661. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ Code, § 826. TITLE IV. Unlawful Contracts. § 1667. What is unlawful. § 1668. Certain contracts unlawful. § 1669. Penalties void. [Repealed.] § 1670. Contract fixing damages, void. § 1671. Exception. § 1672. Eestraints upon legal proceedings. [Repealed.] § 1673. Contract in restraint of trade, void. § 1674. Exception in favor of sale of good-will. § 1675. Exception in favor of partnership arrangements. § 1676. Contract in restraint of marriage, void. § 1667. What is unlawful. That is not lawful which is : 1. Contrary to an express provision of law ; 2. Contrary to the policy of express law, though not ex- pressly prohibited ; or, 3. Otherwise contrary to good morals. Act to prevent combinations to obstruct sale of live-stock: See jiost, Appendix, tit. "Animals." Contracts in restraint of trade: See post, §§ 1673, 1674. Contracts in restraint of marriage: See post, § 1676. Conditions, when void: See ante, §§ 709, 710, 711. Legislation § 1667. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 827. § 1668. Certain contracts unlawful. All contracts which have for their object, directly or indirectly, to exempt any one from responsibility for his OAvn fraud, or willful injury to the person or property of another, or violation of law, Avhether willful or negligent, are against the policy of the law. Carrier cannot exempt himself from liability for negligent or wrongful acts: See post, § 2175. Legislation § 1668. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 828. § 1669. Penalties void. [Repealed 1874 ; Code Amdts. 1873- 74, p. 242.] Legislation § 1669. 1. Enacted March 21, 1872. 2. Repealed by Code Amdts. 1873-74, p. 242. I '537 UNLAWFUL CONTRACTS. § 1675 § 1670. Contract fixing damages, void. Every conti-aet by which the amount of damage to be paid, or other compensation to be made, for a breach of an obligation, is determined in anticipation thereof, is to that extent void, except as expressly provided in the next section. Legislation § 1670. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § S30. § 1671. Exception. The parties to a contract may agree therein upon an amount which shall be presumed to be the amount of damage sustained hy a breach thereof, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage. Legislation § 1671. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 831. §1672. Restraints upon legal proceedings. [Repealed 1874; Code Amdts. 1873-74, p. 242.] Legislation § 1672. 1. Enacted March 21, 1872. 2. Eepealed bv Code Amdts. 1873-74, p. 242. § 1673. Contract in restraint of trade, void. Every con- tract by which any one is restrained from exercising a lawful profession, trade, or business of any kind, otherwise than is provided by the next two sections, is to that extent void. Legislation § 1673. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 833. § 1674. Exception in favor of sale of good-will. One who sells the good-will of a business may agree with the buyer to refrain from carrying on a similar business within a specified county, city, or a part thereof, so long as the buyer, or any person deriving title to the good-will from him, carries on a like business therein. Good-will of business, defined: Ante, § 992. Good-will of business is property: Ante, § 993. Sale of good- will, implied warranty not to draw away customers: post, § 1776. Partner cannot dispose of good-will: See post, § 2430, subd. 2. Legislation § 1674. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 834. § 1675. Exception in favor of partnership arrangements. Partners may, upon or in anticipation of a dissolution of the partnership, agree that none of them will carry on a similar business within the same city or town where the partnership business has been transacted, or within a specified part thereof. Legislation § 1675. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 835. § 1689 CIVIL CODE. 538' § 1676. Contract in restraint of marriage, void. Every con- tract in restraint of the marriage of any person, other than a minor, is void. Conditions in restraint of marriage: See ante, § 710. Legislation § 1676. Enacted March 21, 1872; based on Field's Draft N. Y. Civ. Code, § 836. TITLE V. Extinction of Contracts. Chapter I. Contracts, how Extinguished. § 1682. II. Eescission. §§ 1688-1691. III. Alteration and Cancellation. §§ 1697-1701. CHAPTER I. Contracts, How Extinguished. § 1682. Contract, how extinguished. § 1682. Contract, how extinguished. A contract may be extinguished in like manner with any other obligation, and also in the manner prescribed by this title. Legislation § 1682. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 837. CHAPTER II. Rescission. § 1688. Rescission extinguishes contract. § 1689. When party may rescind. § 1690. When stipuluations against right to rescind do not defeat it. § 1691. Rescission, how effected. § 1688. Rescission extinguishes contract. A contract is extinguished by its rescission. Legislation § 1688. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 838. §1689. When party may rescind. A party to a contract may rescind the same in the following cases only : 1. If the consent of the party rescinding, or of any party jointly contracting with him, was given by mistake, or obtained through duress, menace, fraud, or undue influence, exercised by or w4th the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested with such party ; 2. If, through the fault of the party as to whom he rescinds, the consideration for his obligation fails, in whole or in part ; 3. If such consideration becomes entirely void from any cause ; 539 ALTERATION AND CANCELLATION OF CONTRACTS. § 1697 4. If such consideration, before it is rendered to him, fails in a material respect, from any cause ; or, 5 , By consent of all the other parties. Rescission: See post, §§ 3406 et seq. Rescinding sale of personalty for non-payment of price: See post, § 1749. Contract not free, when obtained by mistake, duress, menace, fraud, or undue influence: See ante, § 1567. Legislation § 1689. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 839. § 1690. When stipulations against right to rescind do not defeat it. A stipulation that errors of description shall not avoid a contract, or shall be the subject of compensation, or both, does not take away the right of rescission for fraud, nor for mistake, where such mistake is in a matter essential to the inducement of the contract, and is not capable of exact and entire compensation. Legislation § 1690. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 840. • § 1691. Rescission, how eifected. Rescission, when not effected by consent, can be accomplished only by the use, on the part of the party rescinding, of reasonable diligence to comply with the following rules : 1. He must rescind promptly, upon discovering the facts which entitle him to rescind, if he is free from duress, menace, undue influence, or disability, and is aware of his right to rescind ; 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 do likewise, unless the latter is unable or positively refuses to do so. Rescission of contracts: See post, §§ 3406-3408. Legislation § 1691. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 841. 2. Amendment by Stats. 1901, p. 408; unconstitutional. See note, § 4, ante. CHAPTER in. Alteration and Cancellation. § 1697. Alteration of verbal contract. § 1698. Written contracts, how modified. § 1699. Extinction by cancellation, etc. § 1700. Extinction b^ unauthorized alteration. § 1701. Alteration of duplicate, not to prejudice. §1697. Alteration of verbal contract. A contract not in writing may be altered in any respect by consent of the parties, § 1701 CIVIL CODE. 540 in writing, without a new consideration, and is extinguished thereby to the extent of the new alteration. [Amendment approved 1874; Code Amdts. 1873-74, p. 242.] Alterations in written instrument to be accounted for by party producing it in evidence: Code Civ. Proc, § 1982. Legislation § 1697. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 842), and then read: "A contract may be altered in any respect by consent of the parties, without a new con- sideration, and is extinguished therebA' to the extent of the alteration." 2. Amended by Code Amdts. 1873-74, p. 242. § 1698. Written contracts, how^ modified. A contract in writing may be altered by a contract in writing, or by an executed oral agreement, and not otherwise. [Amendment approved 1874; Code Amdts. 1873-74, p. 243.] Parol evidence to alter writings: See Code Civ. Proc, § 1856; and see ante, § 1639. Legislation § 1698. 1. Enacted March 21, 1872 (based on Field's Draft, jST. Y. Civ. Code, §843), and then read: "A contract in writing may be altered by a contract in writing, or by an executed oral agree- ment; and not otherwise, except as to the time of performance, which may be extended by any form of agreement." 2. Amended by Code Amdts. 1873-74, p. 243. § 1699. Extinction by cancellation, etc. The destruction or cancellation of a written contract, or of the signature of the parties liable thereon, with intent to extinguish the obligation thereof, extinguishes it as to all the parties consenting to the act. Legislation § 1699. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 844. § 1700. Extinction by unauthorized alteration. The inten- tional destruction, cancellation, or material alteration of a written contract, by a party entitled to any benefit under it, or with his consent, extinguishes all the executory obligations of the contract in his favor, against parties who do not consent to the act. Legislation § 1700. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 845. § 1701. Alteration of duplicate, not to prejudice. Where a contract is executed in duplicate, an alteration or destruction of one copy, while the other exists, is not within the provisions of the last section. Legislation § 1701. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 846. 541 OBLIGATIONS IMPOSED BY LAW. § 1711 PAET III. OBLIGATIONS IMPOSED BY LAW. § 1708. Abstinence from injury. § 1709. Fraudulent deceit. § 1710. Deceit, what. § 1711. Deceit upon the public, etc. § 1712. Eestoration of thing wrongfully acquired. § 1713. When demand necessary. § 1714. Eesponsibility for willful acts, negligence, etc. § 1715. Other obligations. § 1708. Abstinence from injury. Every person is bound, without contract, to abstain from injuring the person or prop- erty of another, or infringing upon any of his rights. As to what injuries are criminal: See Pen. Code, §§ 346-367a. Legislation § 1708. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § S47. § 1709. Fraudulent deceit. One who willfully deceives an- other with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers. Legislation § 1709. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § S48. § 1710. Deceit, what. A deceit, within the meaning of the last section, is either : 1. The suggestion, as a fact, of that Avhich is not true, by one who does not believe it to be true ; 2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true ; 3. The suppression of a fact, by one who- is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact; or, 4. A promise, made without any intention of performing it. Fraud. Actual or constructive: See ante, §§ 1571 et seq. Legislation § 1710. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code!, § 849. § 1711. Deceit upon the public, etc. One Avho practices a deceit with intent to defraud tlic pu])]ic, or a particular class of persons, is deemed to have intended to defraud every individual in that class, who is actually misled by the deceit. Legislation § 1711. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 850. § 1715 CIVIL CODE. 542 § 1712. Restoration of thing- wrongfully acquired. One who obtains a thing without the consent of its owner, or by a consent afterAvards rescinded, or by an unlawful exaction which the owner could not at the time prudently refuse, must restore it to the person from Avhom it Avas thus obtained, un- less he has acquired a title thereto superior to that of such other person, or unless the transaction was corrupt and unlaw- ful on both sides. Legislation § 1712. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 851. § 1713. When demand necessary. The restoration required by the last section must be made without demand, except Avhere a thing is obtained by mutual mistake, in which case the party obtaining the thing is not bound to return it until he has notice of the mistake. Legislation § 1713. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 852. § 1714. Responsibility for willful acts, negligence, etc. Every one is responsible, not only for the result of his Avillful 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, willfully or by want of ordinary care, brought the injury upon himself. The extent of liability in such cases is defined by the title on compensatory relief. Compensatory relief: See post, §§ 3281 et seq. Legislation § 1714. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 853. § 1715. Other obligations. Other obligations are prescribed by divisions one and tAvo of this code. Legislation § 1715. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 854. 2. Amendment by Stats. 1901, p. 409; unconstitutional. See note, § 4, ante. 543 GENERAL PROVISIONS AS TO SALES, § 1721 PART IV. OBLIGATIONS ARISING FROM PARTIC- ULAR TRANSACTIONS. Title I. Sale. §§ 1721-1798. II. Exchange. §§1804-1807. III. Deposit. §§ 1813-1878. IV. Loan. §§ 1884-1920. V. Hiring. §§ 1925-1959. VI. Service. §§ 1965-2079. VII. Carriage. §§ 2085-2209. Vlir. Trust. §§2215-2289. IX. Agency. §§2295-2389. X. Partnership. §§ 2395-2520. XI. Insurance. §§ 2527-2766. XII. Indemnity. §§ 2772-2781. XIII. Guaranty. §§ 2787-2866. XIV. Lien. §§ 2872-3080. XV. Negotiable Instruments. §§ 3086-3262. XVI. General Provisions. § 3268. TITLE I. Sale. Chapter I. General Provisions. Articles I-III. §§ 1721-1741. 11. Eights and Obligations of the Seller. Articles I-III. §§ 1748-1778. III. Eights and Obligations of the Buyer. §§ 1784-1786. TV. Sale by Auction. §§ 1792-1798. CHAPTER I. General Provisions. Article I. Sale. §§ 1721, 1722. II. Agreements for Sale. §§ 1726-1734. III. Form of the Contract. §§ 1739-1741. AETICLE I. Sale. § 1721. Sale, what. § 1722. Subject of sale. § 1721. Sale, what. Sale is a contract by which, for a pecuniary consideration, called a price, one transfers to another an interest in property. § 1730 CIVIL CODE. 544 Legislation § 1721. Enacted March 21, 1872; based on Field's Draft, X. Y. Civ. Code, § Soo. § 1722. Subject of sale. The subject of sale must be prop- erty, the title to which can be immediately transferred from the seller to the buyer. Legislation § 1722. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 856. ARTICLE II. Agreements for Sale. § 1726. 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 contract. § 1731. Agreement to sell real property. § 1732. Form of grant required by such contract. [Repealed.] § 1733. Usual common-law covenants required by such contracts, when. § 1734. Form of such covenants. § 1726. Agreement for sale. An agreement for sale is either : 1. An agreement to sell; 2. An agreement to buy ; or, 3. A mutual agreement to sell and buy. Legislation § 1726. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 857. § 1727. Agreement to sell. An agreement to sell is a con- tract by Avhich one engages, for a price, to transfer to another the title to a certain thing. Legislation § 1727. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 858. § 1728. Agreement to buy. An agreement to buy is a con- tract by which one engages to accept from another, and pay a price for the title to a certain thing. Legislation § 1728. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 859. § 1729. Agreement to sell and buy. 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. Legislation § 1729. Enacted March 21. 1872; based on Field's Draft, X. Y. Civ. Code, § 860. § 1730. What may be the subject of the contract. Any property which, if in existence, might be the subject of sale, may be the subject of an agreement for sale, whether in exist- ence or not. 545 FORM OP CONTRACT OF SALE. § 1739 Legislation § 1730, Enacted March 21, 1872; based on Field's Draft, X. Y. Civ. Code, § 861. § 1731. Agreement to sell real property. An agreement to sell real property l)inds the seller to execute a conveyance in form sufficient to pass the title to the property. [Amendment approved 1874; Code Amdts. 1873-74, p. 243.] Legislation § 1731. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 862), and then read: "An agreement to sell real property binds the' seller to execute a grant in the form and manner prescribed by the chapter on transfers of real property." 2. Amended by Code Amdts. 1873-74, p. 243. § 1732. Form of grant required by such contract. [Re- pealed 1874; Code Amdts. 1873-74, p. 243.] Legislation § 1732. 1. Enacted March 21. 1872. 2. Eepealed by Code Amdts. 1873-74, p. 243. § 1733. Usual common-law covenants required by such con- tracts, when. An agreement on the part of a seller of real property to give the usual covenants, binds him to insert in the grant covenants of "seisin," ''quiet enjoyment," "fur- ther assurance," "general warranty," and "against encum- brances." Legislation § 1733. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 863. § 1734. Form of such covenants. The covenants mentioned in the last section must be in substance as follows: "The party of the first part covenants with the party of the second part, that the former is now seised in fee-simple of the property granted ; that the latter shall enjoy the same without any law- ful disturbance; that the same is free from all encumbrances; that the party of the first part, and all persons acquiring any interest in the same through or for him, will, on demand, exe- cute and deliver to the party of the second part, at the expense of the latter, any further assurance of the same that may be reasonably required ; and that the party of the first part will warrant to the party of the second part all the said property against every person lawfully claiming the same." Legislature § 1734. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 864. ARTICLE III. Form of the Contract. § 1739. Contract for sale of personal property. § 1740. Contract to mannfactnro. § 1741. Contract for sale of real property. § 1739. Contract for sale of personal property. No sale of personal property, or agreement to buy or sell it for a price of two hundred dollars or more, is valid, unless : Civ. Code — 35 § 1741 CIVIL CODE. 546 One. The agreement or some note or memorandum thereof be in writing, and subscribed by the part}' to be charged, or by his agent; or, Two. The buyer accepts and receives part of the thing sold, or when it consists of a thing in action, part of the evi- dences thereof, or some of them ; or, Three. The buyer, at the time of sale, pays a part of the price. [Amendment approved 1874; Code Amdts. 1873-74, p. 243.] statute of frauds: See Code Civ. Proc, §§ 1971-1974. Legislation § 1739. 1. Enacted March 21, 1872 (based on Fraudulent Conveyance and Contract Act 1850, Stats. 1850, p. 266, §13; Field's Draft, N. Y. Civ. Code, § 865), and then read: "No sale of personal prop- erty, or agi-eement to buy or sell it, for a price of two hundred dollars or more, is valid, unless: 1. A memorandum of the contract, showing the parties, their consent, and the subject of sale, is made in writing, and subscribed by the party to be charged; or, 2. The buyer accepts and re- ceives part of the thing sold, or when it consists of a thing in action, part of the evidences thereof; or, 3. The buyer, at the time of sale, pays a part of the price." 2. Amended by Code Amdts. 1873-74, p. 243. § 1740. Contract to manufacture. An agreement to manu- facture a thing, from materials furnished by the manufac- turer, or by another person, is not within the provisions of the last section. Legislation § 1740. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 866. § 1741. Contract for sale of real property. 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 writing; but this does not abridge the poAvcr of any court to compel the specific perform- ance of any agreement for the sale of real property in case of part performance thereof. [Amendment approved 1874 ; Code Amdts. 1873-74, p. 243.] statute of frauds: See ante, § 1624; also Code Civ. Proc, §§ 1971- 1974. Legislation § 1741. 1. Enacted March 21, 1872 (based on Field's Draft, X. Y. Civ. Code, § 867), and then read: "Xo agreement for the sale of real property, or of any estate' therein, other than an estate for a term not exceeding one year, is valid, unless a memorandum thereof, showing the parties, their consent, and the subject of sale, is made in writing, and subscribed by the party to be charged, or his agent, thereunto authorized in writing, or unless the contract has been partially performed by the party seeking to enforce it, and such part performance has been accepted by the other." 2. Amended by Code Amdts. 1873-74, p. 243. 547 DELIVERY OF GOODS. § 1753 CHAPTER II. Rights and Obligations of the Seller. Article I. Eights and Duties before Delivery. §§ 1748, 1749. II. Delivery. §§ 1753-1758. III. Warranty. §§ 1763-1778. ARTICLE I. Rights and Duties Before Delivery. § 1748. When seller must act as depositary. § 1749. When seller may resell. § 1748. When seller must act as depositary. After per- sonal property has heen sold, and nntil the delivery is com- pleted, the seller has the rights and obligations of a deposi- tary for hire, except that he must keep the property, without charge, until the buyer has had a reasonarble opportunity to remove it. Legislation § 1748. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 869. § 1749. When seller may resell. 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 price, in the manner prescribed by the title on liens. Rescission of contracts, generally: See ante, §§ 1688 et seq.; post, §§3406 et seq. Rescission of contract of sale by buyer: See post, §§ 1785, 1786. Liens: See post, §§ 2872 et seq. Legislation! 1749. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 870. ARTICLE II. Delivery. § 1753. Delivery on demand. § 1754. Delivery, where made. § 1755. Expense of transportation. § 1756. Notice of election as to delivery. § 1757. Buyer's directions as to manner of sending thing sold. § 1758. Delivery to be within reasonable hours. § 1753. Delivery on demand. One Avho sells personal prop- erty, 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. Performance, •'generally: See nnte, §§ 1473, 1485 et seq. Delivery sufficient as to third person: See post, § 3440. Legislation § 1753. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 871. § 1758 CIVIL, CODE. 548 § 1754. Delivery, where made. Personal property sold is deliverable at the place "vvhere it is at the time of the sale or agreement to sell, or if it is not then in existence, it is deliver- able at the place where it is produced. Legislation § 1754. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 872. § 1755. Expense of transportation. One who sells personal property must bring it to his own door, or other convenient place, for its acceptance by the buyer, but further transporta- tion is at the risk and expense of the buyer. Legislation § 1755. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code. § 873. § 1756. Notice of election as to delivery. When either party to a contract of sale has an option as to the time, place, or manner of delivery, he must give the other party reason- able notice of his choice ; and if he does not give such notice within a reasonable time, his right of option is waived. Legislation § 1756. Enacted March 21. 1872; based on Field's Draft, jSr. Y. Civ. Code, § 874. § 1757. Buyer's directions as to manner of sending* thing sold. If a seller agrees to send the thing sold to the buyer, he must follow the directions of the latter as to the manner of sending, or it will be at his own risk during its transporta- tion. If he folloAvs such directions, or if, in the absence of special directions he uses ordinary care in forwarding the thing, it is at the risk of the buyer. Legislation § 1757. Enacted March 21. 1872; based on Field's Draft, X. Y. Civ. Code, § ^7-". § 1758. Delivery to be w^ithin reasonable hours. The de- livery of a thing sold can be offered or demanded only within reasonable hours of the day. Legislation § 1758. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 876. 549 WARRANTY IN SALES. § 1767 AETICLE III. Warranty. § 1763. Warranty, what. § 1764. No implied warranty in mere contract of sale. § 1765. Warranty of title to personal property. § 1766. Warranty on sale by sample. § 1767. When seller knows that buyer relies on his statements, etc. § 1768. Merchandise not in existence. § 1769. Manufacturer's warranty against latent defects. § 1770. Thing bought for particular purpose. § 1771. When thing cannot be examined by buyer. § 1772. Trade-marks. § 1773. Other marks. § 1774. Warranty on sale of written instrument. § 1775. Warranty of provisions for domestic use. § 1776. Warranty on sale of good-will. § 1777. Warranty upon judicial sale. § 1778. Effect of general warranty. § 1763. Warranty, what. A warranty is an engagement by which a seller assures to a buyer the existence of some fact affecting the transaction, whether past, present, or future. Legislation § 1763. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 877. § 1764. No implied warranty in mere contract of sale. Ex- cept as prescribed hy this article, a mere contract of sale or agreement to sell does not imply a warranty. Warranty of genuineness on exchange of money: Post, § 1807. Legislation § 1764. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 878. § 1765. Warranty of title to personal property. One who sells or agrees to sell personal property, as his own, thereby warrants that he has a good and unencumbered title thereto. Legislation § 1765. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 879. § 1766. Warranty on sale by sample. One who sells or agrees to sell goods by sample, thereby warrants the bulk to be equal to the sample. Legislation § 1766. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 880. § 1767. When seller knows that buyer relies on his state- ments, etc. 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 exist- ence of any fact concerning the thing sold which would, to his knowledge, destroy the buyer's inducement to buy. Legislation § 1767. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Cod^, § 881. § 1774 CIVIL CODE. 550 § 1768. Merchandise not in existence. One who agrees to sell merchandise not then in existence, thereby warrants that it shall be sound and merchantable at the place of production contemplated by the parties, and as nearly so, at the place of delivery, as can be secured by reasonable care. Legislation § 1768. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § SS2. § 1769. Manufacturer's warranty against latent defects. One who sells or agrees to sell an article of his own manufac- ture thereby warrants it to be free from any latent defect, not disclosed to the buyer, arising from the process of manu- facture, and also that neither he nor his agent in such manu- facture has knowingly used improper materials therein. Legislation § 1769. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 883. § 1770. Thing bought for particular purpose. One who manufactures an article under an order for a particular pur- pose, warrants by the sale that it is reasonably fit for that purpose. Legislation § 1770. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 884. § 1771. When thing cannot be examined by buyer. One who sells or agrees to sell merchandise inaccessible to the examination of the buyer, thereby Avarrants that it is sound and merchantable. Legislation § 1771. Enacted March 21, 1872; based on Field's Draft, X. Y. Civ. Code, § 885. § 1772. Trade-marks. One who sells or agrees to sell any article to which there is affixed or attached a trade-mark, thereby warrants that mark to be genuine and lawfully used. Selling goods with counterfeit trade-mark: See Pen. Code. § 351. Legislation § 1772. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 886. § 1773. Other marks. One who sells or agrees to sell any article to which there is affixed or attached a statement or mark to express the quantity or quality thereof, or the place where it was, in whole or in part, produced, manufactured, or prepared, thereby warrants the truth thereof. Owner of trade-mark: Pol. Code, § 3199. Legislation § 1773. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 887. § 1774. Warranty on sale of written instrument. One who sells or agrees to sell an instrument purporting to bind any 551 ^ WARRANTY IN SALES. § 1778 one to the performance of an act, thereby warrants that he- has no knowledge of any facts Avhich tend to prove it worth- less, such as the insolvency of any of the parties thereto, where that is material, the extinction of its obligations, or its invalidity for any cause. [Amendment approved 1874; Code Amdts. 1873-74, p. 244.] ■Legislation § 1774. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code', § 888), and then read: "One who sells ot agrees to sell an instrnment purporting to bind any one to the performance of an act, thereby warrants the instrument to be what it purports to be, and to be binding according to its purport upon all the parties thereto; and also warrants that he has no knowledge of any facts which tend to prove it worthless, such as the insolvency of any of the parties thereto, where that is material, the extinction of its obligations, or its invalidity for any cause." 2. Amended by Code Amdts. 1873-74, p. 244. § 1775. Warranty of provisions for domestic use. One who makes a business of selling provisions for domestic use warrants by a sale thereof, to one who buys for actual con- sumption, that they are sound and w^holesome. Legislation § 1775. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 889. § 1776. Warranty on sale of good-will. One who sells the good-will of a business thereby warrants that he will not en- deavor to draw off any of the customers. Legislation § 1776. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 890. § 1777. Warranty upon judicial sale. Upon a judicial sale, the only warranty implied is that the seller does not know that the sale will not pass a good title to the property. Legislation § 1777. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 891. § 1778. Effect of general warranty. A general warranty does not extend to defects inconsistent therewith of which the buyer was then aware, or which were then easily discernible by him without the exercise of peculiar skill; but it extends to all other defects. Legislation § 1778. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 892. § 1793 CIVIL CODE. 552 CHAPTER HI. Rights and Obligations of the Buyer. § 1784. Price, wlien to be paid. § 1785. Eight to inspect goods. § 1786. Eights in ease of breach of warranty. § 1784. Price, when to be paid. A buyer must pay the price of the thing sokl on its delivery, and must take it away within a reasonable time after the seller offers to deliver it. When seller must act as bailee: See ante, § 1748. Legislation § 1784. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 893. § 1785. Right to inspect goods. On an agreement for sale, with warranty, the buyer has a right to inspect the thing sold, at a reasonable time, before accepting it ; and may rescind the contract if the seller refuses to permit him to do so. Rescission of contract by seller: See ante, § 1749. Rescission by buyer for breach of warranty: See post, § 1786. Legislation § 1785. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 894. § 1786. Rights in case of breach of warranty. The breach of a warranty entitles the buyer to rescind an agreement for sale, but not an executed sale, unless the warranty was in- tended by the parties to operate as a condition. Legislation § 1786. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 895. CHAPTER IV. Sale by Auction. § 1792. Sale by auction, what. § 1793. Sale, when complete. § 1794. Withdrawal of bid. § 1795. Sale under written conditions. § 1796. Eights of buyer upon sale without reserve. § 1797. By-bidding. § 1798. Auctioneer's memorandum of sale. § 1792. Sale by auction, what. A sale by auction is a sale by public outcry to the highest bidder on the spot. Auctioneers. Authority of, generally: See post. §§ 2362, 2363. Regulations respecting auctioneers' bonds, license, etc.: Pol. Code, §§ ;-!2S4 et seq. Legislation § 1792. Enacted March 21, 1872; based on Field's Draft, X. Y. Civ. Code, § 896. § 1793. Sale, when complete. A sale by auction is com- plete when the auctioneer publicly announces, by the fall of 553 SALE BY AUCTION. § 1798 his hammer, or in any other customary manner, that the thing is sold. N, Legislation § 1793. Enacted March -21, 1872; based on Field's Draft, , Y. Civ. Code, § 897. § 1794. Withdrawal of bid. Until the annonncement men- tioned in the last section has been made, any bidder may with- draw his bid, if he does so in a manner reasonably sufficient to bring it to the notice of the auctioneer. Legislation § 1794. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § S9S. § 1795. Sale under written conditions. When a sale by auction is made upon written or printed conditions, such con- ditions cannot be modified by any oral declaration of the auctioneer, except so far as they are for his own benefit. Legislation § 1795. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 899. § 1796. Rights of buyer upon sale without reserve. 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 thereto, the highest bid- der 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. Legislation § 1796. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 900. § 1797. By-bidding". The employment by a seller of any person to bid at a sale by auction, without the knowledge of the buyer, without an intention on the part of such bidder to buy, and on the part of the seller to enforce his bid, is a fraud upon the buyer, which entitles him to rescind his purchase. Legislation § 1797. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 901. §1798. Auctioneer's memorandum of sale. When prop- erty is sold by auction, an entry made by the auctioneer, in his sale-book, at the time of the sale, specifying the name of the person for w^hom he sells, the thing sold, the price, the terms of sale, and the name of the buyer, binds both the parties in the same manner as if made by themselves. [Amendment approved 1874; Code Amdts. 1873-74, p. 244.] Auctioneer may make memorandum: See' ante, § 1624, subd. 4. Legislation § 1798. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 902, modified in form, but not in effect; Fraudulent Conveyance and Contract Act 1850, Stats. 1850, p. 266, § 14), and then read: "When property is sold by auction, the auctioneer; or his § 1807 CIVIL CODE. 554 partner or clerk, may enter Ib a sale-book at the time of the sale, a memorandum specifying the name of the person for whom he sells, the thing sold, the price, the terms of sale, and the name of the buyer. A memorandum thus made binds both the parties in the same manner as if made bv themselves." 2. Amended by Code Amdts. 1873-74, p. 244. TITLE II. Exchange. § 1804. Exchange, what. § 1805. Form of contract. § 1806. Parties have rights and obligations of sellers and buyers. 5 1S07. Warranty of money. § 1804. Exchange, what. Exchange is a contract by which the parties mutually give, or agree to give, one thing for an- other, neither thing, or both things, being money only. Legislation § 1804. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code. § 903. § 1805. Form of contract. The provisions of section seven- teen hundred and thirty-nine apply to all exchanges in Avhich the value of the thing to be given by either party is tAvo hun- dred dollars or more. Legislation § 1805. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 904. § 1806. Parties have rights and oblig-ations of sellers and buyers. Tlie provisions of the title on sale apply to exchanges. Each party haij the rights and obligations of a seller as to the thing Avhich he gives, and of a buyer as to that which he takes. Legislation § 1S06. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 905. § 1807. Warranty of money. On an exchange of money, each party thereby warrants the genuineness of the money given by him. Legislation § 1807. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code', § 906. 555 ' NATURE AND CREATION OF DEPOSIT. § 1815 TITLE III. Deposit. Chapter I. Deposit in General. Articles I, II. §§ 1813-1828. II. Deposit for Keeping. Articles I-V. §§ 1833-1872. III. Deposit for Exchange. § 1878. CHAPTER I. Deposit in General. Article I. Nature and Creation of Deposit. §§ 1813-1818. II. Obligations of the Depositary. §§ 1822-1828. AETICLE I. Nature and Creation of Deposit. § 1813. Deposit, kinds of. § 1814. Voluntary deposit, how made. § 1815. Involuntary deposit, how made. § 1816. Duty of involuntary depositary. § 1817. Deposit for keeping, what. § 1818. Deposit for exchange, what. § 1813. Deposit, kinds of. A deposit may be voluntary or involuntary ; and for safekeeping or for exchange. Deposit for keeping: Post. §§ 1833 et seq. Gratuitous deposit, and incidents: Post, §§ 1844 et seq. Deposit for hire: Post, §§ 18.51 et seq. Deposit for exchange: Post, § 1878. Loan for use: Post, §§ 1884 et seq. Loan for exchange: Post, § 1902. Loan of money: Post, § 1912. Hiring: See post, §§ 1925 et seq. Innkeepers: Post, §§ 1859 et seq. Common carriers: Post, §§ 2085 et seq. Pledge: Post, §§ 2986 et seq. Legislation § 1813. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 907. § 1814. Voluntary deposit, how made. A voluntary deposit is made by one giving to another, with his consent, the pos- session of personal property to keep for the benefit of the former, or of a third party. The person giving is called the depositor, and the person receiving the depositary. Finder of lost articles: See post, §§ 1864 et seq. Obligations of depositary: See post, §§ 1822 et seq. Legislation § 1814. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 908. § 1815. Involuntary deposit, how made. An involuntary deposit is made : § 1822 CIVIL CODE. 556 1. By the accidental leaving or placing of personal property in the possession 5f any pei:son, without negligence on the part of its owner ; or, 2. In cases of fire, shipwreck, inundation, insurrection, riot, or like extraordinary emergencies, by the owner of personal property committing it, out of necessity, to the care of any person. Involuntary deposit in cases of emergency must be accepted: See post, § IS 16. Involuntary deposit is gratuitous: See post, § 1845. Degree of care requisite: See post, § 1846. Duties of depositary, when cease: See post, § 1847. Notice to owner to remove: See post, § 1847. Legislation § 1815. Enacted March 21. 1872; based on Field's Draft, X. Y. Civ. Code. § 909. ' § 1816. Duty of involuntary depositary. The person with whom a thing is deposited in the manner described in the last section is bound to take charge of it, if able to do so. Legislation § 1816. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 910. § 1817. Deposit for keeping", Vv^hat. A deposit for keeping is one in which the depositary is bound to return the identical thing deposited. Deposit for keeping: See post, §§ 1833 et seq. Legislation § 1817. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code. § 911. § 1818. Deposit for exchange, vi^hat. A deposit for ex- change is one in which the depositary is only bound to return a thing corresponding in kind to that Avhich is deposited. Deposit for exchange transfers title: Post, § 1878. Loan for exchange: See post, §§ 1902 et seq. Legislation § 1818. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 912. ARTICLE II. Obligations of the Depositary. § 1822. Depositary must deliver on demand. § 1823. No obligation to deliver without demand. § 1824. Place of delivery. § 1825. Notice to owner of adverse claim. § 1S26. Notice to owner of thing wrongfully detained. § 1827. Delivery of thing owned jointly, etc. § 1828. Joint deposits by more than one person. § 1822. Depositary must deliver on demand. A depositary must deliver the thing to the person for Avhose benefit it was deposited, on demand, whether the deposit was made for a specified time or not, unless he has a lien upon the thing de- 557 OBLIGATIONS OF THE DEPOSITARY. § 1827 posited, or has been for])idden or prevented from doing so b}^ the real owner thereof, or by the act of the law, and has given the notice required by section eighteen hundred and twenty- five. Delivery: See post, §§ 1823, 1827. Care rectuired of depositary: See post, § 1852. Depositary's lien. For a general lieu upon personalty dependent on possession, consult post,"§ 30.51. Notice of adverse proceedings: Post, § 1825. Lien of innkeepers: See post, §§ 1861 et seq. Legislation § 1822. Enacted March 21, 1872; based on Field's Draft, K Y. Civ. Code, § 913. § 1823. No obligation to deliver without demand. A de- positary is not bound to deliver a thing deposited without de- mand, even A\'here the deposit is made for a specified time. Legislation § 1823. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 914. § 1824. Place of delivery. A depositary must deliver the thing deposited at his residence or place of business, as may be most convenient for him. Delivery on sales: See ante, §§ 1753 et seq. Legislation § 1824. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 915. § 1825. Notice to owner of adverse claim. A depositary must give prompt notice to the person for whose benefit the deposit was made, of any proceedings taken adversely to his interest in the thing deposited, which may tend to excuse the depositary from delivering the thing to him. Legislation § 1825. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 916. § 1826. Notice to owner of thing wrongfully detained. A depositary, who believes that a thing deposited with him is wrongfully detained from its true owner, may give him notice of the deposit ; and if within a reasonable time afterAvards he does not claim it, and sufficiently establish his right thereto, and indemnify the depositary against the claim of the depos- itor, the depositary is exonerated from liability to the person to whom he gave the notice, upon returning the thing to the depositor, or assuming, in good faith, a new obligation chang- ing his position in respect to the thing, to his prejudice. Legislation § 1826. Enacted March 21, 1872; based on Field's Draft, X. Y. Civ. Coile, § 917. §1827. Delivery of thing owned jointly, etc. If a thing deposited is owned jointly or in common by persons who can- not agree upon the manner of its delivery, the depositary may § 1833 CIVIL CODE. 558 deliver to each his proper share thereof, if it can he done with- out injury to the thing. Legislation § 1827. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 918. The code commissioners say: "This provision is new, but is intended to obviate a difficulty which may sometimes arise." § 1828. Joint deposits by more than one person. When a deposit is made in the name of two or more persons, deliverable or payable to either or to their survivor or 'survivors, such de- posit or any part thereof, or increase thereof, may be delivered or paid to either of said persons or to the survivor or survivors in due course of business. Legislation § 1828. Added by Stats. 1907, p. 92; the code commis- sioner saying, "A new section, added to protect banks in paying joint accounts to survivors, in due course of business, without waiting for any authorization of court." CHAPTER II. Deposit for Keeping. Article I. General Provisions. §§ 1833-1840. II. Gratuitous Deposit. §§ 1844-1847. III. Storage. §§ 1851-1857. Ilia. Warehousemen. §§ 1858-1858f. IV. Innkeepers. §§ 1859-1863. V. Finding. §§ 1864-1872. ARTICLE I. General Provisions. § 1833. Depositor must indemnify depositary. § 1834. Obligation of depositary of animals. § 1835. Obligations as to use of thing deposited. § 1836. Liability for damage arising from wrongful use. § 1837. Sale of thing in danger of perishing. § 1838. Injury to, or loss of thing deposited. § 1839. Service rendered by depositary. § 1840. Liability of depositary. § 1833. Depositor must indemnify depositary. A depositor must indemnify the depositary : 1. For all damage caused to him by the defects or vices of the thing deposited ; and, 2. For all expenses necessarily incurred by him about the thing, other than such as are involved in the nature of the un- dertaking. Lender's liability for defects in articles borrowed: See post, § 1893. Legislation, § 1833. EnaetedMarch 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 919. 559 DEPOSIT FOR KEEPING. GENERAL PROVISIONS. § 1839 § 1834. Obligation of depositary of animals. A depositary of living animals must provide them with suitable food and shelter, and treat them kindly. Lien of keepers of live-stock: See post, § 3051. Legislation § 1834. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 920. § 1835. Obligations as to use of thing- deposited. A deposi- tary may not use the thing deposited, or permit it to be used, for any purpose, without the consent of the depositor. He may not, if it is purposely fastened by the depositor, open it without the consent of the latter, except in case of necessity. Liability for wrongful use: See post, § 1836. Hiring. Definition of term: See post, §§ 192.5 et seq. Legislation § 1835. Enacted Mareli 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 921. § 1836. Liability for damage arising- from wrongful use. A depositary is liable for any damage happening to the thing deposited, during his wrongful use thereof, unless such damage must inevitably have happened though the property had not been thus used. Legislation § 1836. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 922. § 1837. Sale of thing- in danger of perishing-. If a thing deposited is in actual danger of perishing before instructions can be obtained from the depositor, the depositary may sell it for the best price obtainable, and retain the proceeds as a deposit, giving immediate notice of his proceedings to the de- positor. Sale of perishables: See post, § 1857. Legislation § 1837. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 923. § 1838. Injury to, or loss of thing- deposited. If a thing is lost or injured during its deposit, and the depositary refuses to inform the depositor of the circumstances under which the loss or injury occurred, so far as he has information concern- ing them, or Avillfully misrepresents the circumstances to him, the depositary is presumed to have willfully, or by gross neg- ligence, permitted the loss or injury to occur. Legislation § 1838. Enacted March 21, 1872; based on Field's Draft, X. y. Civ. Code, § 924. § 1839. Service rendered by depositary. So far as any ser- vice is rendered by a depositary, or required from him, his duties and liabilities are prescribed by the title on employment and service. Employment and service: See post, §§ 1965 et seq. § 1847 CIVIL CODE. 560 Legislation § 1839. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 925. § 1840. Liability of depositary. The liability of a deposi- tary for negligence cannot exceed the amount which he is in- formed by the depositor, or has reason to suppose, the thing deposited to be worth. [Amendment approved 1874; Code Amdts. 1873-74, p. 244.] Legislation § 1840. 1. Enacted March 21, 1872 '(based on Field's Draft, N. Y. Civ. Code, § 926), and then read: "The liability of a de- positary for negligence is limited to the amount which he is informed, or has reason to suppose, the thing deposited to be worth." 2. Amended by Code Amdts. 1873-7i, p. 244. AETICLE n. Gratuitous Deposit. § 1844. Gratuitous deposit, what. § 1845. Nature of involuntary deposit. § 1846. Degree of care required of gratuitous depositary. § 1847. His duties cease, when. § 1844. Gratuitous deposit, what. Gratuitous deposit is a deposit for which the depositary receives no consideration be- yond the mere possession of the thing deposited. Degree of care necessary: See post, § 1846. If this bailment corre- spond to the mandatum as generally understood, requiring, on the part of the bailee, some service to be performed with respect to the de- posit, then § 1839, supra, and §§ 1975, 1976, 1977, post, must be read together with § 1846, in determining the degree of care which this bailee must use. Legislation § 1844. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 927. § 1845. Nature of involuntary deposit. An involuntary de- posit is gratuitous, the depositary being entitled to no reward. Involuntary deposit, defined: See ante, § 1815. Legislation § 1845. Enacted March 21, 1872; based on Field's Draft, N. Y'. Civ. Code, § 928. § 1846. Degree of care required of gratuitous depositary. A gratuitous depositary must use, at least, slight care for the preservation of the thing deposited. Degree of care requisite: See ante, § 1844 and note. Legislation § 1846. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 929. § 1847. His duties cease, when. The duties of a gratuitous depositary cease : 1. Upon his restoring the thing deposited to its owner ; or, 2. Upon his giving reasonable notice to the owner to remove it, and the owner failing to do so Avithin a reasonable time. But an involuntary depositary, under subdivision two of sec- 561 STORAGE. 1855 tion eighteen hundred and fifteen, cannot give such notice until the emergency which gave rise to the deposit is past. Legislation § 18-17. Enacted March 2], 1872; based on Field's Draft, ■ N. Y. Civ. Code, § 930. ARTICLE III. Storage. § 1851. Deposit for hire. § 1852. Degree of care required of depositary for hire. § 1853. Rate of compensation for fraction of a week, etc. § 1854. Termination of deposit. § 1855. Same. § 1856. Lien for storage charges, advances, insurance, and expenses. § 1857. Storage property to be sold. § 1851. Deposit for hire. A deposit not gratuitous is called storage. The depositary in such case is called a depositary for hire. Warehousemen and wharfingers: See post, §§ 1858 et seq. Hiring. In general: See post, § 1925. Legislation § 1851. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 931. § 1852. Degree of care required of depositary for hire. A depositary for hire must vise at least ordinary care for the preservation of the thing deposited. Liability of innkeepers: See post, § 1859. Common carriers; Post, §§ 2100, 2114, 2194. Liability of warehousemen: See post, §§ 2120, 2121. Legislation § 1852. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 932. § 1853. Rate of compensation for fraction of a week, etc. In the absence of a different agreement or usage, a depositary for hire is entitled to one week's hire for the sustenance and shelter of living animals during any fraction of a week, and to half a month's hire for the storage of any other property during any fraction of a half-month. Warehouseman making advances may sell property when: See Pol. Code, § 3156. Legislation § 1853. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Codd, § 933. § 1854. Termination of deposit. In the absence of an agree- ment as to the length of time during which a deposit is to con- tinue, it may be terminated by the depositor at any time, and by the depositary upon reasonable notice. Legislation § 1854. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 934. § 1855. Same. Notwithstanding an agi-ecment respecting the length of time during which a deposit is to continue, it Civ. Code— 36 § 1857 cn^iL CODE. 562 may be terminated by the depositor on paying all that would become due to the depositary in case of the deposit so con- tinuing. Legislation § 1855. Enacted March 21, 1872; based on Field's Draft, X. Y. Civ. Code, § 935. § 1856. Lien for storage charges, advances, insurance, and expenses. A depositary for hire has a lien for storage charges and for advances and insurance incurred at the request of the bailor, and for money necessarily expended in and about the eare, preservation and keeping of the property stored, and he also has a lien for money advanced at the request of the bailor, to discharge a prior lien, and for the expenses of a sale where default has been made in satisfying a valid lien. The rights of the depositary for hire to such lien are regulated by the title on liens. [Amendment approved 1909 ; Stats. 1909, p. 1001.] Legislation § 1856. 1. Added by Stats. 1891, p. 470. and then read: "A depositary for hire has a lien for storage charges, which is regulated by the title on liens." 2. Amended by Stats. 1909, p. 1001. § 1857. Storage property to be sold. If from any cause other than want of ordinary care and diligence on his part, a depositary for hire is unable to deliver perishable property, baggage, or luggage received by him for storage, or to collect his charges for storage due thereon, he may cause such prop- erty to be sold, in open market, to satisfy his lien for storage ; provided, that no property except perishable property shall be sold, under the provisions of this section, upon which stor- age charges shall not be due and unpaid for one year at the time of such sale. Sale of perishables: See ante, § 1837. Legislation § 1857. Added by Stats. 1891, p. 470. ARTICLE Ilia. Warehousemen. § 1858. Warehouse-receipts, when must not be issued. § 1858a. Property not to be removed without consent in writing. § 1858b. Warehouse-receipts, classification and effect of. § 1858c. Indorsement on negotiable receipt of property delivered. § 1858d. Non-negotiable receipts and their effect. § 1858e. Liability for loss by fire. § 185Sf. Penalties and liabilities. Legislation Article Ilia. Added by Stats. 1905, p. 611, the title of the act reading, "An Act to add an Article Ilia to Chapter II of Title III of Part IV of Division Third of the Civil Code, relating to ware- housemen." The article heading, through a clerical or t\-pographical error, is printed "Chapter llla," which is not followed in this code. 563 WAREHOUSEMEN. § 1858b In Ms note to §§ 1858-1858f, the sections composing the new article, the code commissioner says, "The' statute of 1877-78, p. 949, relating to warehousemen's and wharfingers' receipts, is codified in the above sections." Unconstitutional additions were made in 1901 of sections of the same numbers, and in the identical language of the present sec- tions, with only one exception, namely, § 1858a not having the word "immediate" in the' words "beyond his immediate control." See post, tit. "Legislation," under the respective sections constituting the article. § 1858. Warehouse-receipts, when must not be issued. A warehouseman, wharfinger, or other person doing a storage business must not issue any receipt or voucher for any mer- chandise, grain, or other product or thing of value, to any person purporting to be the owner thereof, nor to any person as security for any indebtedness or for the performance of any obligation, unless such merchandise, grain, or other product, commodity, or thing has been, in good faith, received by such warehouseman, Avharfinger, or other person, and is in his store or under his control at the time of issuing his re- ceipt ; nor must any second receipt for any such property be issued while a former receipt for any part thereof is outstand- ing and uncanceled. Act of 1905 relating to warehouse receipts: See General Laws, Act 4319. Act of 1909 making uniform the law of warehouse receipts: See Gen- eral Laws, Act 4320. Legislation § 1858. 1. Addition by Stats. 1901, p. 409; unconstitu- tional. See note, § 4, ante. 2. Added by Stats. 1905, p. 612. See ante. Legislation, Article Ilia. § 1858a. Property not to be removed without consent in writing. . No warehouseman, wharfinger, or other person must sell or encumber, ship, transfer, or remove beyond his imme- diate control any property for which a receipt has been given, without the consent in writing of the person holding such re- ceipt plainly indorsed thereon in ink. Legislation § 1858a. 1. Addition by Stats. 1901, p. 410; unconstitu- tional. See note, § 4, ante. 2. Added by Stats. 1905, p. 612. See ante. Legislation Article Ilia. § 1858b. Warehouse-receipts, classification and effect of. Warehouse-receipts for property stored are of two classes : first, transferable or negotiable ; and second, non-transferable or non-negotiable. Under the first of these classes the prop- erty is transferable by indorsement of the party to whose order such receipt M-as issued, and such indorsement is a valid trans- fer of the property represented by the receipt, and may be in blank or to the order of another. All warehouse-receipts must distinctly state on their face for what they are issued and its brands and distinguishing marks and the rate of stor- § 1858f CIVIL CODE. 564 age per month or season, and, in the case of grain, the kind, the number of sacks, and pounds. If a receipt is not negotia- ble, it must have printed across its face, in red ink, in bold, distinct letters, the word "non-negotiable." Legislation § 18581). 1. Addition by Stats. 1901, p. 410 j unconstitu- tional. See note, § 4, ante. 2. Added by Stats. 1905, p. 612. See ante, Legislation Article Ilia. § 1858c. Indorsement on negotiable receipt of property de- livered. If a negotiable receipt is issued for any property, neither the person issuing it nor any other person into whose care or control the property comes must deliver any part thereof without indorsing on the back of the receipt, in ink, the amount and date of the delivery ; nor can he be allowed to make any offset, claim, or demand other than is expressed on the face of the receipt, Avhen called upon to deliver any property for Avhich it was issued. Legislation § 1858c. 1. Addition by Stats. 1901, p. 410; unconstitu- tional. See note*, § 4, ante. 2. Added by Stats. 1905, p. G12. See ante, Legislation Article Ilia. § 1858d. Non-negotiable receipts and their effect. If a non- negotiable receipt is issued for any property, neither the per- son issuing nor any other person in whose care or control the property comes must deliver any part thereof, except upon the written order of the person to whom the receipt was issued. Legislation § I858cl. 1. Addition by Stats. 1901, p. 410; unconstitu- tional. See note*, § 4, ante. 2. Added by Stats. 1905, p. 612. See ante. Legislation Article Ilia. § 1858e. Liability for loss by fire. No warehouseman or other person doing a general storage business is responsible for any loss or damage to property by fire while in his custody, if he exercises reasonable care and diligence for its protection and preservation. Legislation § 1858e. 1. Addition by Stats. 1901, p. 411; unconstitu- tional. See note", § 4, ante. 2. Added by Stats. 1905, p. 613. See ante, Legislation Article Ilia. § 1858f . Penalties and liabilities. Every warehouseman, wharfinger, or other person Avho violates any of the provisions of sections eighteen hundred and fifty-eight to eighteen hun- dred and fifty-eight e, inclusive, is guilty of a felony, and, upon conviction thereof, may be fined in a sum not exceeding five thousand dollars, or imprisoned in the state prison not exceeding five years, or both. He is also liable to any person aggrieved by such violation for all damages, immediate or consequent, which he may have sustained therefrom, which damages may be recovered by a civil action in any court of 1859. Innkeeper's Liability. The liability of an innkeeper, hotel keeper, boarding and lodging house keeper, for losses of or injuries to personal property, other than money placed by his gruests, boarders, or lodgers under his care, is that of a deposi- tary for hire; provided, however, that in no case shall such liability exceed the sum of one hundred dollars for each trunk and its contents, fifty dollars for each valise or traveling bag and contents, and ten dollars for each box, bundle, or package and contents so placed under his care, [and all other miscella- neous effects including wearing apparel and personal belongings, two hundred fifty dollars;] unless he shall have consented in writing with the owner thereof to assume a greater liability. [Sec. 2. All other acts in conflict with this act are hereby repealed.] (In effect 90 days from and after April 29, 1921. Stats. 1921, Chap. 151.) Civ, Code, 1921. I860 HOW Exempted From Liability. If an innkeeper hotel personally or by putting up a prmted "°;ice m a pio iiiiiiiiii Se° un'L: he ZnZ. ..ve/a ,ece,p. m .H.in. *er,fo. to „pt"ed , (.n e«ec. ,0 days from and arter Ap„.^ »^_ .»|^ .Stats. 1921, Chap. 150.) I 565 INNKEEPERS. § I860 competent jurisdiction, whether the offender has been con- victed or not. Legislation § 1858f. 1. Addition by Stats. 1901, p. 411; unconstitu- tional. See notd, § 4, ante. 2. Added by Stats. 1905, p. 613. See ante, Legislation Article Ilia. ARTICLE IV. Innkeepers. § 18.59. Innkeeper's liability. § 1860. How exempted from liability. § 1861. Hotels have lien on baggage of guests. May sell baggage. Resi- due. Baggage not belonging to guest. § 1862. Unclaimed baggage may be sold at auction. Notice. § 1863. Keeker to post rates of charges § 1859. Innkeeper's liability. The liability of an innkeeper, hotel-keeper, boarding and lodging-house keeper, for losses of or injuries to personal property, other than money, placed by his guests, boarders, or lodgers under his care, is that of a depositary for hire ; provided, however, that in no case shall such liability exceed the sum of one hundred dollars for each trunk and its contents, fifty dollars for each valise or traveling-bag and con- tents, and ten dollars for each box, bundle, or package and contents, so placed under his care, unless he shall have con- sented in writing w4th the owner thereof to assume a greater liability. [Amendment approved 1895; Stats. 1895, p. 49.] How exempted from liability: See post, § 1860. Refusing to receive and entertain guests a misdemeanor: Pen. Code, §365. Cubic air law: See Pen. Code, § 401a. Legislation § 1859. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 936), and then read: "An innkeeper is liable for all losses of or injuries to personal property placed by his guests under his care, unless occasioned by an irresistible superhuman cause, by a public enemy, by the' negligence of the owner, or by the act of some one whom he brought into the inn." 2. Amended by Stats. 1895, p. 49. § 1860. How exempted from liability. If an innkeeper, [ 4 9^ hotel-keeper, boarding-house or lodging-house keeper, keeps a fireproof safe, and gives notice to a guest, boarder, or lodger, either personally or by putting up a printed notice in a promi- nent place in the office or the room occupied by the guest, boarder, or lodger, that he keeps such a safe and will not be liable for money, jewelry, documents, or other articles of un- usual value and small compass, unless placed therein, he is not liable, except so far as his own acts shall contribute thereto, for any loss of or injury to such articles, if not deposited with him to be placed therein, nor in any case for more than the sum of two hundred and fifty dollars for any or all such property of any individual guest, boarder, or lodger, unless he shall , § 1861 CIVIL CODE. 566 have given a receipt in writing therefor to such guest, boarder, or 'lodger. [Amendment approved 1895; Stats. 1895, p. 50.] Legislation § 1860. 1. Enacted March 21, 1872 (based on Field's Draft. X. Y. Civ. Code, § 937), and then read: "If an innkeeper keeps a fireproof safe, and gives notice to a guest, either personally or by- putting np a printed notice in a prominent place in the room occupied by the guest, that he keeps such a safe, and will not be liable for money, jewelry, documents, or other articles of unusual value and small compass, unless placed therein, he is not liable, except so far as his own acts contribute thereto, for any loss of or injury to such ar- ticles, if not deposited with him, and not required by the guest for present use." 2. Amended by Stats. 1895, p. .50. § 1861. Hotels have lien on baggage of guests. May sell bagguge. Residue. Baggage not belonging to guest. Hotel, inn, boarding-house and lodging-house keepers shall have a lien upon the baggage and other property belonging to or legally under the control of their guests, or boarders, or lodg- ers "which may be in such hotel, inn, or boarding or lodging- house for the proper charges due from such guests, or boarders, or lodgers, for their accommodation, board and lodg- ing and room rent, and such extras as are furnished at their request, and for all money paid for or advanced to such guests, or boarders or lodgers, and for the costs of enforcing such lien, with the right to the possession of such baggage and other property until such charges and moneys are paid ; and unless such charges and moneys shall be paid within sixty days from the time when the same become due, said hotel, inn, boarding- house or lodging-house keeper may sell said baggage and property at public auction to the highest bidder, after giving notice of such sale by publication of a notice containing the name of the debtor, the amount due, a brief description of the property to be sold, and the time and place of such sale, once every week for four successive Aveeks prior to the day of sale, in a newspaper of general circulation in the county in which said hotel, inn, boarding-house or lodging-house is situated and also by mailing, at least fifteen (15) days before such sale, a copy of such notice addressed to such guest, boarder or lodger at his post office address, if known, and if not known, such notice shall be addressed to such guest, boarder or lodger at the place Avhere such hotel, inn, boarding-house or lodging- house is situated : and after satisfying such lien out of the pro- ceeds of such sale together with any reasonable costs that may have been incurred in enforcing said lien, the residue of said proceds of sale, if any, shall upon demand made within six months after such sale, be paid by said hotel, inn, boarding- house, or lodging-house keeper to such guest, boarder or ' lodger; and if not demanded within six months from the date 1861a. [New.] Liens of Keepers of Furnished Apartment Houses. Keepers of furnished apartment houses shall have a lien upon the baggage and other property of value belonging to their tenants or guests, which may be in such furnished apart- ment house, for the proper charges due from such tenants or guests, for their accommodation, rent, services, meals, and such extras as are furnished at their request, and for all moneys expended for them, at their request, and for the costs of enforc- ing such lien, with the right to the possession of siuch baggage and other property of value until such charges are paid, and such moneys are repaid; and unless such charges shall be paid and unless such moneys shall be repaid within sixty days from the time when such charges and moneys, respectively, become due, said keeper of a furnished apartment house may sell said baggage and property, at public auction to the highest bidder, after giving notice of such sale by publication of a notice con- taining the name of the debtor, the amount due, a brief descrip- tion of the property to be sold, and the time and place of such sale, once every week, for four successive weeks, prior to the date of sale, in a newspaper of general circulation in the county in which said furnished apartment house is situated, and also by mailing, at least fifteen days prior to the date of sale, a copy of such notice addressed to such tenant or guest at his post-office address, if known, and if not known, such notice shall be ad- dressed to such tenant or guest at the place where such furriished apartment house is situated; and, after satisfying such lien out of the proceeds of &uch sale, together with any reasonable costs that may have been incurred in enforcing said lien, the residue of said proceeds of sale, if any, shall, upon demand made within six months after such sale, be paid by said keeper of a furnished apartment house to such tenant or guest; and if not demanded within six months from the date of such sale, said residue, if any, .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 representative, within one year thereafter, it shall be paid into the general fund of the county; and such sale shall be a perpetual bar to any action against said keeper of a furnished apartment house for the recovery of such baggage or property, or of the \-alue thereof, or for any damages growing out of the failure of such tenant or guest to receive such bag- gage or property. (In effect 00 days from and after April 27, .1917. Stats. 1917, Chap. 794.) Civ. Code, 1917. 567 INNKEEPERS. § 1862 of such sale, such residue shall be paid into the treasury of the county in which such sale took place ; and if the same be not claimed by the owner thereof, or his legal representatives, within one year thereafter, the same shall be paid into the gen- eral fund of said county ; and such sale shall be a perpetual bar to any action against said hotel, inn, boarding-house or lodging-house keeper for the recovery of such baggage or prop- erty or of the value thereof, or for any damages growing out of the failure of such guest, boarder or lodger to receive such baggage or property; provided, however, that if any baggage or property becoming subject to the lien herein provided for does not belong to the guest, lodger or boarder who incurred the charges or indebtedness secured thereby, at the time when such charges or indebtedness Avas incurred, and if the hotel, inn, boarding or lodging-house keeper entitled to such lien receives notice of such fact at any time before the sale of such baggage or property hereunder, then, and in that event, such baggage and property which is subject to said lien and did not belong to said guest, boarder or lodger at the time when such charges or indebtedness was incurred shall not be subject to sale in the manner hereinbefore provided, but such baggage and property may be sold in the manner provided by the Code of Civil Procedure for the sale of property under a want of execution, to satisfy a judgment obtained in any action brought to recover the said charges or indebtedness. [Amend- ment approved 1915; Stats. 1915, p. 1285.] OTjtaining accoiiimodations with intent to defraud: See Pen. Code, § 537. Legislation § 1861. 1. Added by Code Amendments 1875-76, p. 78 and then read: "Hotel, inn, boarding-house and lodging-house keepers shall have a lien upon the baggage and other prope'rty of value of their guests, or boarders, or lodgers, brought into such hotel, inn, or boarding or lodging-house, by such guests, or boarders, or lodgers, for the proper charges due from such guests, or boarders, or lodgers, for their accommodation, board and lodging, and room rent, [and} such extras as are furnished at their request, with the right to the possession of such baggage or other property of value, until all such charges are paid." 2. Amended by Stats. 1915, p. 1285. § 1862. Unclaimed bag-gage may be sold at auction. Notice. Whenevci- any trunk, carpet-l)ag, valise, box, bundle, or other baggage has heretofore come, or shall hereafter come into the possession of the keeper of any hotel, inn, boarding or lodging- house, as such, and has remained or shall remain unclaimed for the period of six months, such keeper may proceed to sell the same at public auction, and out of the proceeds of such sale may retain the charges for storage, if any, and the ex- penses of advertising and sale thereof; but no such sale shall § 1863 . CIVIL CODE. 568 be made until the expiration of four Aveeks from the first publi- cation of notice of such sale in a newspaper published in or nearest the city, town, village, or place in which said hotel, inn, boarding or lodging-house is situated. Said notice shall be published once a week, for four successive weeks, in some newspaper, daily or weekly, of general circulation, and shall contain a description of each trunk, carpet-bag, valise, box, bundle, or other baggage, as near as may be; the name of the owner, if known; tbe name of such keeper, and the time and place of sale; and the expenses incurred for advertising shall be a lien upon such trunk, carpet-bag, valise, box, bundle, or other baggage, in a ratable proportion, according to the value of such piece of property, or thing, or article sold ; and in case any balance arising from such sale shall not be claimed by the rightful owner within one Aveek from the day of said sale, the same shall be paid into the treasury of the county in which such sale took place ; and if the same be not claimed by the owner thereof, or his legal representatives, within one year thereafter, the same shall be paid into the general fund of said county. Legislation § 1862. Added by Code Amdts. 1875-76, p. 78. § 1863. Keeper to post rates of charges. Every keeper of a hotel, inn, boarding or lodging-house, shall post in [a} con- spicuous place in the officj? or public room, and in ever}"- bed- room of said hotel, boarding-house, inn, or lodging-house, a printed copy of this section, and a statement of charge or rate of charges by the day, and for meals or items furnished, and for lodging. No charge or sum shall be collected or received by any such person for any service not actually rendered, or for any item not actually delivered, or for any greater or other sum than he is entitled to by the general rules and regulations of said hotel, inn, boarding or lodging-house. For any viola- tion of this section, or any provision herein contained, the of- fender shall forfeit to the injured party three times the amount of the sum charged in excess of what he is entitled to. Legislation § 1863. 1. Added by Code Amdts. 1875-76, p. 79. 2. Ameudment by Stats. 1901, p. 411; Lineoiistitntional. See note, § 4, ante. 569 FINDING OF PROPERTY. § 18G5 ARTICLE V. Finding. § 1864. Obligation of finder. § 1865. Finder of goods or money, or saving animals, duty of. § 1866. Claimant to prove ownership. § 1867. Reward, etc., to finder. § 1868. Finder may put thing found on storage. § 1869. When finder may sell the thing found. § 1870. How sale is to be made. § 1871. Property vests in finder, when; liability of finder to owner. § 1872. Thing abandoned. § 1864. Oblig-ation of finder. One who finds a thing lost is not bound to take charge of it, but if he does so he is thence- forward a depositary for the owner, with the rights and obliga- tions of a depositary for hire. Iiost money and goods: See Pol. Code, §§ 3136-3142. Depositary for hire: See ante, §§1851 et seq. Legislation § 1864. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 938. § 1865. Finder of goods or money, or saving' animals, duty of. If the finder of a thing, other than a domestic animal, takes possession thereof, or if a person saves any such animal from drowning or starvation, he must, within a reasonable time, inform the owner thereof, if known, and make restitution to him upon demand, without compensation, except a reason- able charge for saving and caring therefor. If the owner is not knoAvn to such finder or saver, he must, within five days, file an affidavit Avith the justice of the peace of the county whose office is nearest to the place of such finding or saving, particularly describing the property and the time, place, and circumstances under which it was found or saved. Such jus- tice must then summon three disinterested persons to ap- praise the property. They, or a majority of them, must make two lists of the valuation and description of the property, by them verified, and deliver one of such lists to the justice of the peace, to be kept by him on file in his office, and the other list must be delivered to such finder or saver, who must, within five days thereafter, cause it to be filed for record in the office of the county recorder of the county, who must record it in a book known as the "Estray and Lost Property Book." [Amendment approved 1905 ; Stats. 1905, p. 613.] Duty of finder. Penalty. If owner is not known finder must report to justice of the peace and advertise. If he fails to do so he forfeits; double tlie value thereof to the owner: Pol. Code, §§ 3136-3142. Finder, when guilty of larceny: See Pen. Code, § 485. Legislation § 1865. 1. Enacted March 21, 1872 (based on Field's Draft, X. Y. Civ. Code, § 939), and then read: "If the finder of a thing § 1870 CIVIL CODE. 570 knows or suspects who is the owner, he must, with reasonable dili- gence, 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." 2. Amendment by Stats. 1901, p. 411; unconstitutional. See' note, § 4, ante. 3. Amended by Stats. 1905, p. 613; the code commissioner saying, "The section is amended to incorporate therein the provisions, upon the same' subject, of §§ 3136, 3137, and 3138 of the Political Code." § 1866. Claimant to prove ownership. The finder of a thing- may, in good faith, before giving it up, require reasonable proof of ownership from any person claiming it. Legislation § 1866. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 940. § 1867, Reward, etc., to finder. The finder of a thing is en- titled to compensation for all expenses necessarily incurred by him in its preservation, and for any other service neces- sarily performed by him about it, and to a reasonable rev/ard for keeping it. Legislation § 1867. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 941. § 1868. Finder may put thing found on storage. The finder of a thing may exonerate himself from liability at any time by placing it on storage with any responsible person of good character, at a reasonable expense. Legislation § 1868. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 942. § 1869, When finder may sell the thing found. The finder of a thing may sell it, if it is a thing which is commonly the subject of sale, Avhen the owner cannot, ■\Yith reasonable dili- gence, be found, or, being found, refuses upon demand to pay the lawful charges of the finder, in the following cases : 1. When the thing is in danger of perishing, or of losing the greater part of its value ; or, 2. When the lawful charges of the finder amount to two thirds of its value. Lost money and goods: See Pol. Code, §§ 3136-3142. Legislation § 1869. Enacted March 21, 1872, based on Field's Draft, N. Y. Civ. Code, § 943. § 1870. How sale is to be made. A sale under the provi- sions of the last section must be made in the same manner as the sale of a thing pledged. Sale of pledge: See post, §§ 3000 et seq. Legislation § 1870. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 944. 571 ^ DEPOSIT FOR EXCHANGE. § 1878 § 1871. Property vests in finder, when; liability of finder to owner. If no owner appeai-s within six months after such find- ing or saving and offers reasonable proof of his ownership, and compensates, or in good faith oifers to compensate, the finder or saver for the expense necessarily incurred by him, then such property vests in such finder or saver, unless it is of greater value than twenty dollars. If of such greater value, he must publish a copy of such verified list for three successive weeks in some newspaper of general circulation published in the county, and if the owner does not, within one year after the completion of such publication, prove the property and pay, or in good faith offer to pay, all charges thereon, the title thereto vests in such finder or saver. If the finder or saver of property does not comply Avitli the provisions of section eighteen hundred and sixty-five, or if, though he does so com- ply, he refuses to surrender the property to an owner who has made reasonable proof of ownership, and paid, or in good faith offered to pay, all legal charges thereon, he is liable to the owner for double the value of the property, and the owner may exonerate himself from all liability arising out of such property by surrendering, or offering to surrender, it in sat- isfaction thereof. [Amendment approved 1905 ; Stats. 1905, p. 614.] Legislation § 1871. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 945), and then read: "The owner of a thing found may exonerate himself from the claims of the finder by surren- dering it to him in satisfaction thereof." The code commissioners say: "This provision cannot be supported by the citation of any positive authority, but seems proper, in order to prevent owners from being made responsible for excessive expenses:" 2. Amendment by Stats. 1901, p. 412; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1905, p. 614; the code commissioner saying, "The section is amended to incorporate therein the provisions of §§ 3139, 3140, and 3141 of the Political Code." § 1872. Thing abandoned. The provisions of this article have no application to things which have been intentionally abandoned by their owners. Legislation § 1872. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 946. CHAPTER III. Deposit for Exchange. § 1878. Eelations of the parties. § 1878. Relations of the parties. A deposit for exchange transfers to the depositary the title to the thing deposited, and creates between him and the depositor the relation of debtor and creditor merely. § 188. crv'iL CODE. 572 Deposit for exchange, defined: Ante, § 1818. Loan for exchange: See post, § 1902. Legislation § 1878. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 947. TITLE IV. Loan. Chapter I. Loan for Use. §§ 1884-1896. II. Loan for Exchange. §§ 1902-1906. in. Loan of Money. §§ 1912-1920. CHAPTER I. Loan for Use. § 1884. Loan, what. § 1885. Title to property lent. § 1886. Care required of borrower. § 1887. Same. § 1888. Degree of skill. § 1889. Borrower, when to repair injuries. § 1890. Use of thing lent. § 1891. Eelending forbidden. § 1892. Borrower, when to bear expenses. § 1893. Lender liable for defects. § 1894. Lender may recjuire return of thing lent. § 1895. When returnable without demand. § 1896. Place of return. § 1884. Loan, what. A loan for use is a contract by which one gives to another the temporary possession and nse of per- sonal property, and the latter agrees to return the same thing to him. at a future time, without reward for its use. Legislation § 1884. Enacted March 21, 1872; based on. Field's Draft. N. Y. Civ. Code, § 948. § 1885. Title to property lent. A loan for use does not transfer the title to the thing; and all its increase during the period of the loan belongs to the lender. Legislation § 1885. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 949. § 1886. Care required of borrower. A borrower for use must use great care for the preservation in safety and in good condition of the thing lent. Legislation § 1886. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 950. § 1887. Same. One Avho borrows a living animal for use, must treat it with great kindness, and provide everything necessary and suitable for it. Depositary of living animals for keeping: See ante, § 1834. 573 ' LOAN FOR USE. § 1894 Legislation § 1887. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 951. § 1888. Degree of skill. A borrower for use is bound to have and to exercise sueh skill in the care of the thing lent as he causes the lender to believe him to possess. Compare with § 1976, post. Legislation § 1888. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 952. § 1889. Borrower, w^hen to repair injuries. A borrower for use must repair all deteriorations or injuries to the thing lent, which are occasioned by his negligence, however slight. Legislation § 1889. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 953. § 1890. Use of thing' lent. The borrower of a thing for use may use it for such purposes only as the lender might reason- ably anticipate at the time of lending. Eelending for bidder: See post, § 1891. Legislation § 1890. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 954. § 1891. Relending' forbidden. The borrower of a thing for use must not part with it to a third person, without the con- sent of the lender. Legislation § 1891. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 955. § 1892. Borrower, when to bear expenses. The borrower of a thing for use must bear all its expenses during the loan, except such as are necessarily incurred by him to preserve it from unexpected and unusual injury. For such expenses he is entitled to compensation from the lender, who may, how- ever, exonerate himself by surrendering the thing to the borrower. Liability for expenses: See post, § 1904. Legislation § 1892. Enacted March 21, 1872; based on Field's Dra'ft, N. Y. Civ. Code, § 956. § 1893. Lender liable for defects. The lender of a thing for use must indemnify the borroAver for damage caused by defects or vices in it, which he knew at the time of lending, and concealed from the borrower. Indemnity to depositary: See § 1833, ante. Loan for exchange: See post, §§ 1902, 1906. Legislation § 1893. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 957. § 1894. Lender may require return of thing- lent. The lender of a thing for use may at any time require its return, § 1903 - CIVIL CODE. 574 even though he lent it for a specified time or purpose. But if, on the faith of such an agreement, the borrower has made such arrangements that a return of the thing before the period agreed upon would cause him loss, exceeding the benefit de- rived 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. Legislation § 1894. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 958. § 1895. When returnable without demand. If a thing is lent for use for a specified time or purpose, it must be returned to the lender v\-ithont demand, as soon as the time has expired, or the purpose has been accomplished. In other cases it need not be returned until demanded. Legislation § 1895. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 959. § 1896. Place of return. 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 contemplated by them, then at the place where it was at that time. Legislation § 1896. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 960. CHAPTER II. Loan for Exchange. § 1902. Loan for exchange, what. § 1903. Same. § 1904. Title to property lent. § 1905. Contract cannot be modified by lender. § 1906. Certain sections applicable. § 1902. Loan for exchang-e, what. A loan for exchange is a "contract In- which one delivers personal property to another, and the latter agrees to return to the lender a similar thing at a future time, without reward for its use. Loan of money as a loan for exchange: See § 1912. Legislation § 1902. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 961. § 1903. Same. A loan, which the borrower is allowed by the lender to treat as a loan for use, or for exchange, at his option, is subject to all the provisions of this chapter. Legislation § 1903. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 962. 575 LOAN OF MONEY. § 1913 § 1904. Title to property lent. By a loan for exchange the title to the thing lent is transferred to the borrower, and he must bear all its expenses, and is entitled to all its increase. Liability for expenses: See ante, § 1892. Legislation § 1904. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 963. § 1905. Contract cannot be modified by lender. A lender for exchange cannot require the borrower to fulfill his obliga- tions at a time, or in a manner, different from that which was originally agreed upon. Legislation § 1905. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 964. § 1906. Certain sections applicable. Sections eighteen hun- dred and ninety-three, eighteen hundred and ninety-five, and eighteen hundred and ninety-six, apply to a loan for exchange. Legislation § 1906. Enacted March 21, 1872. CHAPTER III. Loan of Money. § 1912. Loan of money, defined. § 1913. Loan to be repaid in current money. § 1914. Loan presumed to be on interest. § 1915. Interest, what. § 1916. Annual rate. § 1917. Legal interest. § 1918. Parties may agree on any rate. § 1919. Interest becomes part of principal, when. § 1920. Interest on judgment. Code commissioner's note to Chapter III. "Originally, no interest was allowed upon a loan of money. But with the progress of business, it became necessary, and the transaction thus entered into, although in strictness a hiring, is universally known as a loan. This use of the word having obtained so long, it would be idle to attempt and change it." § 1912. Loan of money, defined. A loan of money is a con- tract by Avhich one delivers a sum of money to another, and the latter agrees to return at a future time a sum equivalent to that which he borroAved. A loan for mere use is governed by the chapter on loan for use. Interest: See post, §§ 1914 et seq. Legislation § 1912. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 9fiG. § 1913. Loan to be repaid in current money. A liorrower of money, unless thei'c is an express contract to the contrary, must pay the amount due in such money as is current at the § 1917 CIVIL CODE. 576 time when the loan becomes due, whether such money is worth more or less than the actual money lent. Detriment caused by breach of obligation to loan: See post, § 3302. Legislation § 1913. ?]naeted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 967. § 1914. Loan presumed to be on interest. Whenever a loan of money is made, it is presumed to be made upon interest, unless it is otherwise expressly stipulated at the time in w^riting. [Amendment approved 1874; Code Amdts. 1873-74, p. 244.] Legislation § 1914. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 968), and then read: "A loan of money may be made with or without reward, but is presumed to be made for reward." 2. Amended by Code Amdts. 1873-74, p. 244. § 1915. Interest, v^hat. Interest is the compensation al- lowed by law or fixed by the parties for the use, or forbearance, or detention of money. [Amendment approved 1874 ; Code Amdts. 1873-74, p. 245.] Legislation § 1915. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 969), and then read: "Reward for the loan, forbearance, or use of money or its equivalent is called interest." 2. Amended by Code Amdts. 1873-74, p. 245. § 1916. Annual rate. When a rate of interest is prescribed by a law or contract, without specifying the period of time by which such rate is to be calculated, it is to be deemed an annual rate. Legislation § 1916. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 970. § 1917. Legal interest. Unless there is an express contract in writing, fixing a different rate, interest is payable on all moneys at the rate of seven per cent per annum after they become due, on any instrument of writing, except a judgment, and on moneys lent, or due on any settlement of account, from the day on which the balance is ascertained, and on moneys received to the use of another and detained from him. In the computation of interest for a period less than a year, three hundred and sixty days are deemed to constitute a year. [Amendment approved 1878 ; Code Amdts. 1877-78, p. 87.] Interest on judgments: See post, § 1920. Compounding interest: See post, § 1919. Legislation § 1917. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 971; Stats. 1867-68, p. 553, § 1; Stats. 1869-70, p. 199, § 1), and then read: "Under an obligation to pay interest, no rate being specified, interest is payable at the rate of ten per cent per annum, and in like proportion for a longer or shorter time; but in ■ost, §§ 2368, 2369. Factor's power to pledge principal's goods: See post, §§ 2368, 2991. Legislation § 2026. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1045. § 2027. Obedience required from factor. A factor must obey the instructions of his principal to the same extent as any other employee, notwithstanding any advances he may have made to his principal upon the property consigned to him, except that if the principal forbids him to sell at the market price, he may, nevertheless, sell for his reimbursement, after giving to his principal reasonable notice of his intention to do so, and of the time and place of sale, and proceeding in all respects as a pledgee. Obedience required from employees, generally: Ante, § 1981. Legislation § 2027. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1046. § 2028. Sales on credit. A factor may sell property con- signed to him on such credit as is usual; but, having once agreed with the purchaser upon the term of credit, may not extend it. Authority to sell on credit: Post, § 2368. Legislation § 2028. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1047. § 2029. Liability of factor under guaranty commission. A factor who charges his principal with a guaranty commission upon a sale, thereby assumes absolutely to pay the price when it falls due, as if it were a debt of his own, and not as a mere guarantor for the purchaser ; but he does not thereby assume any additional responsibility for the safety of his remittance of the proceeds. 597 SHIP-MASTERS. § 2037 Legislation § 2029. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1048. §2030. Factor cannot relieve himself from liability. A factor Avho receives property for sale, under a general agree- ment or usage to guarantee the sales or the remittance of the proceeds, cannot relieve himself from responsibility therefor without the consent of his principal. Legislation § 2030. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1049. ARTICLE IV. Ship-masters. § 2034. Appointment of master. § 2035. When must be on board. § 2036. Pilotage. § 2037. Power of master over seamen. § 2038. Power of master over passengers. § 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. Appointment of master. The master of a ship is appointed by the owner, and holds during his pleasure. Legislation § 2034. Enacted March 21, 1872; based on Field's Draft, K Y. Civ. Code, § 1050. § 2035. When must be on board. The master of a ship is bound to be always on board when entering or leaving a port, harbor, or river. Legislation § 2035. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1051. § 2036. Pilotag'e. On entering or leaving a port, harbor, or river, the master of a ship must take a pilot if one offers him- self, and while the pilot is on board the navigation of the ship devolves on him. Duties of pilots and pilot commissioners: See Pol. Code, §§ 2429- 2491. Legislation § 2036. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 1052. § 2037. Power of master over seamen. The master of a ship may enforce the obedience of the mate and seamen to his law- ful commands by confinement and other reasonable corporal punishment, not prohibited by acts of Congress, being respon- sible for the abuse of his power. Legislation § 2037. Enacted Marcli 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1053. § 2044 CIVIL CODE. 598 § 2038. Power of master over passengers. The master of a ship may confine any person on board, during a voyage, for willful disobedience to his lawful commands. Legislation § 2038. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1054. § 2039. Impressing private stores. If, during a voyage, the ship's supplies fail, the master, with the advice of the officers, may compel persons who have private supplies on board to surrender them for the common want, on payment of their value, or giving security therefor. Legislation § 2039. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1055. § 2040. When may abandon the ship. The master of a ship must not abandon it during the voyage, Avithout the advice of the other officers. Legislation § 2040. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1056. § 2041. Duties on abandonment. The master of a ship, upon abandoning it. must carry Avith him, so far as it is in his power, the money and the most valuable of the goods on board, under penalty of being personally responsible. If the articles thus taken are lost from causes beyond his control, he is exonerated from liability. Legislation § 2041. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1057. § 2042. When master cannot trade on his own account. The master of a ship, Avho engages for a common profit on the cargo, must not trade on his OAvn account, and if he does, he must account to his employer for all profits thus made by him. Legislation § 2042. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1058. § 2043. Care a.nd diligence. The master of a ship must use great care and diligence in the performance of his duties, and is responsible foi' all damage occasioned by his negligence, how- ever slight. Shipmaster's liability for negligence: See post, §§ 2383, 2384. Legislation § 2043. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code. § 1059. § 2044. Authority of master. The authority and liability of the master of a ship, as an agent for the owners of the ship and cargo, are regulated by the title on agency. Agency, in general: Post, §§ 2295 et seq. Bottomry. Master may hypothecate upon: Post, §§ 3019 et seq. Respondentia. Master may hypothecate upon: Post, §§ 3038 et seq. Legislation ^ 2044. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1060. 599 MATES AND SEAMEN. § 2051 ARTICLE V. Mates and Seamen. § 2048. Mate, what. § 2049. Seamen, what. § 20.50. Mate and seamen, how engaged and discharged. § 2051. Unseaworthy vessel. § 2052. Seamen not to lose wages or lien by agreement. § 2053. Special agreement with seamen. § 2054. Wages depend on freightage. § 2055. When wages, etc., begin. § 2056. Wages, where voyage is broken np before departure. § 2057. Wrongful discharge. § 2058. Wages, when not lost by wreck. § 2059. Certificate. § 2060. Disabled seamen. § 2061. Maintenance of seamen during sickness. § 2062. Death on the voyage. § 2063. Theft, etc., forfeits wages. § 2064. Seamen cannot ship goods. § 2065. Embezzlement and injuries. [Repealed.] § 2066. Law governing seamen. § 2048. Mate, what. The mate of a ship is the 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. Legislation § 2048. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code. § 1061. § 2049. Seamen, what. All persons employed in the naviga- tion of a ship, or npon a voyage, other than the master and mate, are to be deemed seamen within the provisions of this code. Legislation § 2049. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1062. § 2050. Mate and seamen, how engaged and discharged. The mate and seamen of a ship are engaged by the master, and may be discharged by him at any period of the voyage, for willful and persistent disobedience or gross disqualification, but cannot otherwise be discharged before the termination of the voyage. Legislation § 2050. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, 8 1063. § 2051. Unseaworthy vessel. A mate or seamen [seaman] is not bound to go to sea in a ship that is not seaworthy ; and if there is reasonable doubt of its seaworthiness, he may refuse to proceed until a proper survey has been had. Seaworthiness, defined: Post, § 2682. Legislation § 2051. Enacted March 21, 1872; base^d on Field's Draft, N. Y. Civ. Code, § 1064. § 2058 CIVIL CODE. 600 § 2052. Seamen not to lose wages or lien by agreement. A seaman cannot, by reason of any agreement, be deprived of his lien upon the ship, or of any remedy for the recovery of his wages to which he would otherAvise have been entitled. Any stipulation by which he consents to abandon his right to wages in case of the loss of the ship, or to abandon any right he may have or obtain in the nature of salvage, is void. Wages in case of loss of ship: Post, § 2058. Legislation § 2052. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1065. § 2053. Special agreement with seamen. No special agree- ment entered into by a seaman can impair any of his rights, or add to any of his obligations, as defined by law, unless he fully understands the effect of the agreement, and receives a fair compensation therefor. Legislation § 2053. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1066. § 2054. Wages depend on freightage. Except as hereinafter provided, the wages of seamen are due Avhen, and so far only as, freightage is earned, unless the loss of freightage is owing to the fault of the owner or master. Legislation § 2054. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1067. " § 2055, When wages, etc., begin. The right of a mate or seaman to wages and provisions begins either from the time he begins work, or from the time specified in the agreement for his beginning work, or from his presence on board, whichever first happens. Legislation § 2055. Enacted March 21, 1872; based on Field's Draft. X. Y. Civ. Code, § 1068. § 2056. Wages, where voyage is broken up before departure. Where a voyage is broken up before departure of the ship, the seamen must be paid for the time they have served, and may retain for their indemnity such advances as they have received; Legislation § 2056. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1069. § 2057. Wrongful discharge. When a mate or seaman is wrongfull}^ discharged, or is driven to leave the ship by the cruelty of the master on the voyage, it is then ended Avith re- spect to him, and he may thereupon recover his full wages. Legislation § 2057. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code. § 1070. § 2058. Wages, when not lost by wreck. In case of loss or wreck of the ship, a seaman is entitled to his wages up to the 601 MATES AND SEAMEN. § 2064 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. Legislation § 2058. Enacted March 21, 1872; based on Field's Draft, N. y. Civ. Code, § 1071. §2059. Certificate. 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 pre- sumptive evidence of the fact. Legislation § 2059. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1072. » § 2060. Disabled seamen. Where a mate or seaman is pre- vented from rendering service by illness or injury, incurred without his fault in the discharge of his duty on the voyage, or by being wrongfully discharged, or by a capture of the ship, he is entitled to wages notwithstanding ; but in case of a capture, a ratable deduction for salvage is to be made. Legislation § 2060. Enacted March 21, 1872; based on Field's Draft, N. Y, Civ. Code, § 1073. § 2061. Maintenance of seamen during sickness. Jf a mate or seaman becomes sick or disabled during the voyage, without his fault, the expense of furnishing him with suitable medical advice, medicine, attendance, and other provision for his wants, must be borne by the ship till the close of the voyage. Legislation § 2061. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1074. § 2062. Death on the voyage. If a mate or seaman dies during the voyage, his personal representatives are entitled to his wages to the time of his death, if he Avould have been entitled to them had he lived to the end of the voyage. Legislation § 2062. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1075. §2063. Theft, etc., forfeits wages. Desertion of the ship without cause, or a justifiable discharge by the master during the voyage, for misconduct, or a theft of any part of the cargo or appurtenances of the ship, or a willful injury thereto or to the ship, forfeits all wages due for the voyage to a mate or seaman thus in fault. Legislation § 2063. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1076. § 2064. Seamen cannot ship goods. A mate or seaman may not, under any pretext, ship goods on his own account without permission from the master. Legislation § 2064. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1077. § 2078 CIVIL CODE. 602 §2065. Embezzlement and injuries. [Repealed 1874; Code Amdts. 1873-74, p. 247.] Legislation § 2065. 1. Enacted March 21, 1872. 2. Eepealed by Code Amdts. 1873-74, p. 247. § 2066. Law governing- seamen. The shipment of officers and seamen, and their rights and dnties, are further regulated by acts of Congress. Legislation § 2066. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 1079. AETICLE VI. Ships' Managers. § 2070. Manager, what. § 2071. Duties of manager. § 2072. Compensation. § 2070. Manager, what. The general agent for the owners, in respect to the care of a ship and freight, is called the man- ager. If he is a part-owner, he is also called the managing owner. Legislation § 2070. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1080. § 2071. Duties of manager. Unless otherwise directed, it is the duty of the manager of a ship to provide for the complete seaworthiness of a ship ; to take care of it in port ; to see that it is provided with necessary papers, with a proper master, mate, and crew% and supplies of provisions and stores. Legislation § 2071. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1081. § 2072. Compensation. A managing owner is presumed to have no right to compensation for his own services. Legislation § 2072. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1082. CHAPTER III. Service Without Employment. § 2078. Voluntary interference with property. § 2079. Salvage. § 2078. Voluntary interference v^dth property. One Avho officiously, and without the consent of the real or apparent ownier of a thing, takes it into his possession for the purpose of rendering a service about it, must complete such service, and use ordinary care, diligence, and reasonable skill about the same. He is not entitled to any compensation for his service or expenses, except that he may deduct actual and necessary ex- penses incurred by him about such service from any profits 608 CARRIAGE IN GENERAL. § 2085 which his service has caused the thing to acquire for its owner, and must account to the oAvner for the residue. Empl03mieiit without reward: Ante, §§ 1975 et seq. Gratuitous carriers: Post, § 2089. Legislation § 2078. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1083. § 2079. Salvage. Any person, other than the master, mate, or a seaman thereof, who rescues a ship, her appurtenances or cargo, from danger, is entitled to a reasonable compensation therefor, to be paid out of the property saved. He has a lien for such claim, which is regulated by the title on liens ; but no claim for salvage, as such, can accrue against any vessel, or her freight, or 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 aver- age contribution on the property saved. [Amendment ap- proved 1874; Code Amdts. 1873-74, p. 247.] Legislation § 2079. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1084), and then ended with the words "title on liens," in second sentence. 2. Amended by Code Amdts. 1873-74, p. 247. 3. Amendment by Stats. 1901, p. 413; unconstitutional. See note, § 4, ante. TITLE VII. Carriage. Chapter I. Carriage in General. §§ 2085-2090. II. Carriage of Persons. Articles I, II. §§ 2096-2104. III. Carriage of Property. Articles I-V. §§ 2110-2155. IV. Carriage of Messages. §§ 2161, 2162. V. Common Carriers. Articles I-IV. §§ 2168-2209. CHAPTER I. Carriage in General. § 2085. Contract of carriage. § 2086. Different kinds of carriers. § 2087. Marine and inland carriers, what. § 2088. Carriers by sea. § 2089. Obligations of gratuitous carriers. § 2090. Obligations of gratuitous carrier who has begun to carry. § 2085. Contract of carriage. The contract of carriage is a contract for the conveyance of property, persons, or messages, from one place to another. Owner is liable for acts of driver: Pol. Code, § 293G. Common carriers, defined: Post, § 2168. Carriage of property: Post, §§ 2110 et seq. § 2090 CIVIL CODE. 604 Carriage of persons: Post, §§ 2096 et seq. Carriage of messages: Post, §§ 2161, 2162, 2207 et seq. Legislation § 2085. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1085. §2086. Different kinds of carriers. Carriage is either: 1. Inland ; or, 2. Marine. Legislation § 2086. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1086. § 2087. Marine and inland carriers, what. Carriers upon the o.cean and upon arms of the sea are marine carriers. All others are inland carriers. Inland carriers of property, rights and duties of: Post, §§ 2194 et seq. Marine carriers, rights and duties of: Post, §§ 2148 et seq.; 2197 et seq. Legislation § 2087. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1087. § 2088. Carriers by sea. Rights and duties peculiar to car- riers by sea are defined by acts of Congress. Liahility of marine carriers: See post, §§ 2197, 2198. Rights and duties of carriers, generally: Post, §§ 2180 et seq., 2194 et seq. General average: Post, §§ 2148 et seq. Legislation § 2088. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1089. § 2089. Obligations of gratuitous carriers. Carriers with- out reward are subject to the same rules as employees -without reward, except so far as is otherwise provided by this title. Employees without reward: Ante, §§ 1975 et seq. Service without emplojrment: Ante, §§ 2078 et seq. Gratuitous carriers: See post, §§ 2090, 2096, 2114. Legislation § 2089. Enacted March 21. 1872; based on Field's Draft. N. Y. Civ. Code, § 1090. § 2090. Obligations of gratuitous carrier who has begun to carry. A carrier without reward, who has begun to perform his undertaking, must complete it in like manner as if he had received a reward, unless he restores the person or thing car- ried to as favorable a position as before he commenced the carriage. Compare with §§1975, 1976, ante; §2096, post. Gratuitous carriers: See ante, § 2089; post, §§ 2096, 2114. Legislation § 2090. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1091. 605 CARRIAGE OF PERSONS. § 2102 CHAPTER II. Carriage of Persons. Article I. Gratuitous Carriage of Persons. § 2096. n. Carriage for Eeward. §§ 2100-2104. AETICLE I. Gratuitous Carriage of Persons. § 2096. Degree of care required. § 2096. Degree of care required. A carrier of persons with- out reward must use ordinary care and diligence for their safe carriage. Duty of gratuitous employee, generally: Ante, §§ 1975, 1976, 2090. Carriers of persons, generally: Post, §§ 2180 et seq. Gratuitous carriers: See ante, §§ 2089, 2090; post, § 2114. Legislation § 2096. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1092. AETICLE n. Carriage for Reward. § 2100. General duties of carrier. § 2101. Vehicles. § 2102. Not to overload his vehicle. § 2103. Treatment of passengers. § 2104. Eate of speed and delays. § 2100. General duties of carrier. A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill. Intoxicated driver, duty to discharge: See Pol. Code, § 2933. Driver to fasten horses while standing: See Pol. Code, § 2934. Negligence of driver, liability of owner for: See Pol. Code, § 2936. Legislation § 2100. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1093. § 2101. Vehicles. A carrier of persons for reward is bound to provide vehicles safe and fit for the purposes to which they are put, and is not excused for default in this respect by any degree of care. Legislation § 2101. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1094. § 2102. Not to overload his vehicle. A carrier of persons for reward must not overcrowd or overload his vehicle. Railroad corporations to furnish accommodations: Ante, § 483. Duty not to overload: See post, § 2185. Legislation § 2102. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 1095. § 2114 CIVIL CODE. . 606 § 2103. Treatment of passengers. A carrier of persons for reward must give to passengers all such accommodations as are usual and reasonable," and must treat them with civility, and give them a reasonable degree of attention. Legislation § 2103. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1096. § 2104. Rate of speed and delays. A carrier of persons for reward must travel at a reasonable rate of speed, and without any unreasonable delay, or deviation from his proper route. Legislation § 2104. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1097. CHAPTER III. Carriage of Property. Article I. General Definitions. §2110. rr. Obligations of the Carrier. §§ 2114-2122. in. Bill of Lading. §§ 2126-2132. IV. Freightage. §§ 2136-2144. V. General Average. §§ 2148-2155. AETICLE I. General Definitions. § 2110. Freight, consignor, etc., what. § 2110. Freight, consignor, etc., what. Property carried is called freight; the rcAvard, if any, to be paid for its carriage is called freightage; the person who delivers the freight to the carrier is called the consignor ; and the person to whom it is to be delivered is called the consignee. k Freightage defined: See post, § 2661. Freightage, when to be paid: Post, §§2136 et seq. For definition of bill of lading, see post, § 2126. Legislation § 2110. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1098. ARTICLE II. Obligations of the Carrier. § 2114. Care and diligence required of carriers. § 2115. Carrier to obey directions. § 2116. Conflict of orders. § 2117. Stowage, deviation, etc. § 2118. Delivery of freight. § 2119. Place of delivery. § 2120. Notice when freight not delivered. § 2121. When consignee does not accept. § 2122. When consignee cannot be found. [Repealed.] § 2114. Care and diligence required of carriers. A carrier of property for reward must use at least ordinary care and 607 CARRIAGE OF PROPERTY. OBLIGATIONS OF CARRIER. § 2119 diligence in the performance of all his duties. A carrier Avith- out reward must use at least slight care and diligence. Gratuitous carriers: See ante, §§ 2089, 2090, 2096. Legislation § 2114. Enacted Marcli 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1099. § 2115. Carrier to obey directions. A carrier must comply with the directions of the consignor or consignee to the same extent that an employee is bound to comply with those of his employer. Employee's duty to obey employer: Ante, § 1981. Legislation § 2115. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1100. § 2116. Conflict of orders. When the directions of a con- signor and consignee are conflicting, the carrier must comply with those of the consignor in respect to all matters except the delivery of the freight, as to which he must comply with the directions of the consignee, unless the consignor has specially forbidden the carrier to receive orders from the consignee in- consistent Avith his own. Legislation § 2116. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1101. § 2117. Stowage, deviation, etc. 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. Legislation § 2117. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ-. Code, § 1102. § 2118. Delivery of freig"ht. A carrier of property must deliver it to the consignee, at the place to Avhich it is addressed, in the manner usual at that place. Legislation § 2118. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1103. § 2119. Place of delivery. If there is no usage to the con- trary at the place of delivery, freight must be delivered as follows : 1. If carried upon a raihvay owned or managed by the car- rier, 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 ship moors, within a reasonable distance from the place of address; or, if there is no Avharf, on board a lighter alongside the ship ; or, § 2126 CIVIL CODE. 608 3. In other cases, it must be delivered to the consignee or his agent, personally, if either can, with reasonable diligence, be found. Delivery to connecting carrier: Ante, § 2201. Legislation § 2119. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1104. § 2120. Notice when freight not delivered. 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 arrival, and keep the same in safety; upon his responsibility as a warehouseman, until the consignee has had a reasonable time to remove it. If the place of residence or business of the con- signee be unknown to the carrier, he may give the notice by letter dropped in the nearest postoffice. [Amendment ap- proved 1874; Code Amdts. 1873-74, p. 247.] Legislation § 2120. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1105), then having, in first sentence, "carrier" instead of "warehouseman" in second instance, the section not then having the second sentence. 2. Amended by Code Amdts. 1873-74, p. 247. § 2121. When consignee does not accept. If a consignee does not accept and remove freight within a reasonable time after the carrier has fulfilled his obligation to deliver, or duly offered to fulfill the same, the carrier may exonerate himself from further liability by placing the freight in a suitable ware- house, on storage, on account of the consignee, and giving notice thereof to him. [Amendment approved 1874; Code Amdts. 1873-74, p. 248.] Legislation § 2121. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1106), the final words of the section then being, "on storage, and giving notice thereof to the consignee." 2, Amended by Code Amdts. 1873-74, p. 248. § 2122. When consignee cannot be found. [Repealed 1874 ; Code Amdts. 1873-74, p. 248.] Legislation § 2122. 1. Enacted March 21, 1872. 2. Eepealed by Code Amdts. 1873-74, p. 248. ARTICLE III. Bill of Lading. § 2126. Bill of lading, what. § 2127. Bill of lading negotiable. § 2128. Same. § 2129. Effect of bill of lading on rights, etc., of carrier. § 2130. Bills of lading to be given to consignor. § 2131. Carrier exonerated by delivery according to bill of lading. § 2132. Carrier may demand surrender of bill of lading before delivery. § 2126. Bill of lading, what. A bill of lading is an instru- ment in writing, signed by a carrier or his agent, describing the UNIFORM BILLS OF LADING LAW. CIVIL CODE, Article III of Chapter III of Title VII of Part IV of Division ill of the Civil Code is hereby REPEALED; provided, hpwever, that nothing contained herein shall be construed as limiting in any way the powers of the Railroad Commission under the Public Utilities Act, or any re-enactment, revision or amendment thereof. A new article is hereby added to the Civil Code to be numbered Article III, Chapter III, Title VII, of Part IV, of Division III and to read as follows: [Article III, Chapter III, Title VII, Part IV, Division III (new)], (In effect 90 days from and after April 22, 1919 Stats 1919 Chap. 365.) ARTICLE III. Bills of Lading-. Subdivision L Issue of bills of lading-. Subdivision II. Obligation and rights of carriers upon their bills of lading. Subdivision IIL Negotiation and transfer of bills, subdivision IV. Criminal offenses, subdivision V. Interpretation. SUBDIVISION 1. Issue of Bills of Lading. Bills governed by this article. Form of bills. Essential terms. Form of bills. What terms may be inserted. Definition of nonnegotiable or straight bill. Definition of negotiable or order bill. Negotiable bills must not be issued in sets. Duplicate negotiable bills must be so marked. Nonnegotiable bills shall be so marked. Insertion of name of person to be notified. Acceptance of bill indicates assent to its terms. 2126. Bills Governed by This Article. Bills of lading issued y any common carrier shall be governed by this article. Jection Section Section Section lection lection lection lection ection ection 2126. 2126a. 2126b. 2126c. 2126d. 2126e. 2126f. 2126g. 2126h. 21261. Every bill must 2126a. Form of Bills; Essential Terms, -nbody within its written or printed terms— (a) The date of its issue; (b) The name of the person from whom the goods have been iceived; (c) The place where the goods have been received; [ 2 ] (d) The place to which the goods are to be transported; (e) A statement whether the goods received will be deliver* to a specified person, or to the order of a specified person; (f) A description of the goods or of the packages containii them which may, however, be in such general terms as a referred to in section two thousand one hundred twenty-eight this code; and (g) The signature of the carrier. A negotiable bill shall have the words "order of" print< thereon immediately before the name of the person upon who order the goods received are deliverable. A carrier shall be liable to any person injured thereby for tl damage caused by the omission from a negotiable bill of any the provisions required in this section. 2126b. Form of Bills; What Terms May Be Inserted. carrier may insert in a bill, issued by him, any other terms ai conditions, provided that such terms and conditions shall not — (a) Be contrary to law or public policy, or (b) In any wise impair his obligation to exercise at least thi degree of care In the transportation and safe-keeping of the gooi entrusted to him which a reasonably careful man would exerci in regard to similar goods of his own. 2126c. Definition of Nonnegotiable or Straight Bill. A b in which it is stated that the goods are consigned or destined a specified person, is a nonnegotiable or straight bill. 2126d. Definition of Negotiable or Order Bill. A bill in whii it is stated that the goods are consigned or destined to the ord of any person named in such bill, is a negotiable or order bill. Any provision in such a bill that it is nonnegotiable shall n affect its negotiability within the meaning of this article. 2126e. Negotiable Bills Must Not Be Issued In Sets. Neg tiable bills issued in this state for the transportation of goods any place in the United States on the continent of North Americ except Alaska, shall not be issued in parts or sets. If so issued the carrier issuing them shall be liable for failui to deUver the goods described therein to any one who purchases part for value in good faith, even though the purchase be aft the delivery of the goods by the carrier to a holder of one of tl other parts. 2126f. Duplicate Negotiable Bills Must Be so Marked. WTk more than one negotiable 'bill is issued in this state for the san [ 3 ] joods to be transported to any place in the United States on tlie ?ontinent of North America, except Alaska, the word "duplicate" )r some other word or words indicating that the document is not m original bill shall be placed plainly upon the face of every such Jill, except the one first issued. A carrier shall be liable for the Jamage caused by his failure so to do to any one who has pur- chased the bill for value in good faith as an original, even though :he purchase be after the delivery of the goods by the carrier to :he holder of the original bill. 2126g. Non-Negotiable Bills Shall Be so Marked. A non- legotiable bill shall have placed plainly upon its face by the carrier issuing it "nonnegotiable" or "not negotiable." This section shall not apply, however, to memoranda or icknowledgments of an informal character. 21261i. Insertion of Name of Person to Be Notified. The nsertion in a negotiable bill of the name of a person to be lotified of the arrival of the goods shall not limit the negotiability 3f the bill, or constitute notice to a purchaser thereof of any ■ights or equities of such person in the goods. 21261. Acceptance of Bill Indicates Assent to Its Terms. Except as otherwise provided in this article where a consignor receives a bill and makes no objection to its terms or conditions it the time he receives it, neither the consignor nor any person ivho accepts delivery of the goods, nor any person who seeks to enforce any provision of the bill, shall be allowed to deny that tie is bound by such terms and conditions, so far as they are not contrary to law or public policy. SUBDIVISION II. Obligations and Rights of Carriers Upon Their Bills of Lading. Section 2127. Obligation of carrier to deliver. Section 2127a. Justification of carrier in delivering. Section 2127b. Carrier's liability for misdelivery. Section 2127c. Negotiable bills must be canceled . when goods delivered. Section 2127d. Negotiable bills must be canceled or marked when parts of goods delivered. Section 2128. Altered bills. Section 2128a. Lost or destroyed bills. Section 2128b. Kffect of duplicate bills. Section 2128c. Carrier can not set up title in himself. Section 2128d. Interpleader of adverse claimants. [ 4 ] Section 2128e. Carrier has reasonable time to determine validity of claims. Section 2128f. Adverse title is no defense, except as above pro- vided. Section 2128g. Liability for nonreceipt or misdescription of goods. Section 2128h. Attachment or levy upon goods for which a nego- tiable bill has been issued. Section 21281 Creditor's remedies to reach negotiable bills. Section 212SJ Negotiable bill must state charges for which lien is claimed. Section 2128k. Effect of sale. 212T. Obligation of Carrier to Deliver. A carrier, in the absence of some lawful excuse, is bound to deliver goods upon a demand made either by the consignee named in the bill for the goods, or if the bill is negotiable, by the holder thereof, if such demand is accompanied by — (a) An offer in good faith to satisfy the carrier's lawful lien upon the goods; (b) An offer in good faith to surrender, properly indorsed, the bill which was issued for the goods if the bill is negotiable; and (c) A readiness and willingness to sign, when the goods are delivered, an acknowledgment that they have been delivered, if such signature is requested by the carrier. In case the carrier refuses or fails to deliver the goods in com- pliance with a demand by the consignee or holder so accompanied, the burden shall be upon the carrier to establish the existence of a lawful excuse for such refusal or failure. 2127a. Justification of Carrier In Delivering. A carrier is justified, subject to the provisions of the three following sections, in delivering goods to one who is — (a) A person lawfully entitled to the possession of the goods, or (b) The consignee named in a nonnegotiable bill for the goods, or (c) A person in possession of a negotiable bill for the goods by the terms of which the goods are deliverable to his order, or which has been indorsed to him or in blank by the consignee or by the mediate or immediate indorsee of the consignee. 2X2Tl>. Carrier's Liability for Misdelivery. "V^Tiere a carrier delivers goods to one who is not lawfully entitled to the posses- sion of them, the carrier shall be liable to anyone having a right of property or possession in the goods if he delivered the goods otherwise than as authorized by subdivisions (b) and (c) of the preceding section; and, though he delivered the goods as author- [ 5 ] ized by either of said subdivisions, he shall be so liable if prior to such delivery he — (a) Had been requested, by or on behalf of a person having a rigrht of property or possession in the goods, not to make such delivery, or (b) Had information at the time of the delivery that it was to a person not lawfully entitled to the possession of the goods. A request or information to be effective within the meaning of this section must be given to an officer or agent of the carrier, the actual or apparent scope of whose duties includes action upon such a request or information, and must be given in time to enable the officer or agent to whom it is given, acting with rea- sonable diligence, to stop delivery of the goods. 2127c. Negotiable Bills Must Be Canceled When Goods Deliv- ered. Except as provided in section two thousand one hundred twenty-eight k of this code, and except when compelled by legal process, if a carrier delivers goods for which a negotiable bill had been issued, the negotiation of which would transfer the right to the possession of the goods, and fails to take up and cancel the bill, such carrier shall be liable for failure to deliver the goods to anyone who for value and in good faith purchases such bill, whether such purchaser acquired title to the bill before or after the delivery of the goods by the carrier, and notwithstanding delivery was made to the person entitled thereto. 2127d. Negotiable Bills Must Be Canceled or Marked When Parts of Goods Delivered. Except as provided in section two thousand one hundred twenty-eight k of this code, and except when compelled by legal process, if a carrier delivers part of the goods for which a negotiable bill had been issued and fails either — (a) To take up and cancel the bill, or (b) To place plainly upon it a statement that a portion of the goods has been delivered, with a description, which may • be in general terms, either of the goods or packages that have been so delivered or of the goods or packages which still remain in the carrier's possession, he shall be liable for failure to deliver all the goods specified in the bill, to anyone who for value and in good faith purchases it, whether such purchaser acquired title to it before or after the delivery of any portion of the goods by the carrier, and notwithstanding such delivery was made to the per- son entitled thereto. 212S. Altered Bills. Any alteration, addition or erasure in a bill after its issue without authority from the carrier issuing the same either in writing or noted on the bill shall be void, what- [ 6 ] ever be the nature and purpose of the change, and the bill shall be enforceable according to its original tenor. 2128a. Lost or Destroyed Bills. Where a negotiable bill has been lost or destroyed, a court of competent jurisdiction may order the delivery of the goods upon satisfactory proof of such loss or destruction and upon the giving of a bond with sufficient surety to be approved by the court to protect the carrier or any person injured by such delivery from any liability or loss incurred by reason of the original bill remaining outstanding. The court may also in its discretion order the payment of the carrier's rea- sonable costs and counsel fees. The delivery of the goods under an order of the court as pro- vided in this section, shall not relieve the carrier from liability to a person to whom the negotiable bill has been or shall be negotiated for value without notice of the proceedings or of the delivery of the goods. 2128b. Effect of Duplicate Bills. A bill upon the face of which the word "duplicate" or some other word or words indicat- ing that the document is not an original bill is placed plainly shall impose upon the carrier issuing the same the liability of one who represents and warrants that such bill is an accurate copy of an original bill properly issued, but no other liability. 2128c. Carrier Cannot Set Up Title in Himself. No title to goods or right to their possession, asserted by a carrier for his own benefit, shall excuse him from liability for refusing to deliver the goods according to the terms of a bill issued for them, unless .such title or right is derived directly or indirectly from a transfer made by the consignor or consignee after the shipment, or from the carrier's lien. 2128d. Interpleader of Adverse Claimants. If more than one person claims the title or possession of goods, the carrier may lequire all known claimants to interplead, either as a defense to an action brought against him for nondelivery of the goods, or as an original suit, whichever is appropriate. 2128e. Carrier Has Reasonable Time to Determine Validity of Claims. If someone other than the consignee or person in pos- session of the bill, has a claim to the title or possession of the goods, and the carrier has information of such claim, the carrier shall be excused from liability for refusing to deliver the goods either to the consignee or person in possession of the bill, or to the adverse claimant, until the carrier has had a reasonable time [ 7 ] to ascertain the validity of the adverse claim or to bring legal proceedings to compel all claimants to interplead. 2128f. Adverse Title Is No Defense, Except as Above Pro- vided. Except as provided in the two preceding sections and in section two thousand one hundred twenty-seven a of this code, no right or title of a third person unless enforced by legal process shall be a defense to an action brought by the consignee of a non- negotiable bill or by the holder of a negotiable bill against the carrier for failure to deliver the goods on demand. 2128g. Liability for Non-Receipt or Misdescription of Goods. If a bill of lading has been issued by a carrier or on his behalf by an agent or employee the scope of whose actual or apparent authority includes the issuing of bills of lading, the carrier shall be liable to — (a) The consignee named in a nonnegotiable bill, or (b) The holder of a negotiable bill, Who has given value in good faith relying upon the description therein of the goods, for damages caused by the nonreceipt by the carrier or a connecting carrier of all or part of the goods or their failure to correspond with the description thereof in the bill at the time of its issue. If, however, tlie goods are described in a bill merely by a state- ment of marks or labels upon them or upon packages containing them, or by a statement that the goods are said to be goods of a certain kind or quantity, or in a certain condition, or it is stated in the bill that packages are said to contain goods of a certain kind or quantity or in a certain condition, or that the contents or condition of the contents of packages are unknown, or words of like purport are contained in the bill, such statements, if true, shall not make liable the carrier issuing the bill, although the goods are not of the kind or quantity or in the condition which the marks or labels upon them indicate, or of the kind or quan- tity or in the condition they were said to be by the consignor. All carriers must issue to shippers of carload freight from agency stations a clean bill of lading at the request of the shipper and in such cases shall discontinue the practice of noting on bill of lad- ing "Shipper's load and count." Upon request of shipper of car- load freight from a non-agency station, the carrier shaU send a man to check the loading and shall issue a clean bill of lading, the expense, except transportation of man to and from point of loading to perform service of checking, to be borne by the shipper. 21281i. Attachment or Levy Upon Goods for Which a Nego- tiable Bill Has Been Issued. If goods are delivered to a carrier [ 8 ] by the owner or by a person whose act in conveying the title 1 them to a purchaser for value in good faith would bind the ownt and a negotiable bill is issued for them, they can not thereafte while in the possession of the carrier, be attached by garnishmer or otherwise, or be levied upon under an execution, unless the bi be first surrendered to the carrier or its negotiation enjoinei The carrier shall in no such case be compelled to deliver th actual possession of the goods until the bill is surrendered to hii or impounded by the court. 21281. Creditor's remedies to Reach Negotiable Bills. creditor whose debtor is the owner of a negotiable bill shall b entitled to such aid from courts of appropriate jurisdiction t injunction and otherwise in attaching such bill, or in satisfyin the claim by means thereof as is allowed at law or in equity i regard to property which can not readily be attached or le\-ie upon by ordinary legal process. 212SJ. Negotiable Bill Must State Charges for Which Lie Is claimed. If a negotiable bill is issued the carrier shall have r lien on the goods therein mentioned, except for charges on thos goods for freight, storage, demurrage and terminal charges, an expenses necessary for the preservation of the goods or incider to their transportation subsequent to the date of the bill, unles the bill expressly enumerates other charges for which a lien : claimed. In such case there shall also be a lien for the charge enumerated so far as they are allowed by law and the contrac between tlie consignor and the carrier. 2128k. Effect of Sale. After goods have been lawfully sol to satisfy a carrier's lien, or because they have not been claime( or because they are perishable or hazardous, the carrier shall nc thereafter be liable for failure to deliver the goods to the cor signee or owner of the goods, or to a holder of the bill given fc the goods when they are shipped, even of (if) such a bill be negc tiable. SUBDIVISION III. Negotiation and Transfer of Bills. Section 2129. Negotiation of negotiable bills by delivery. Section 2129a. Negotiation of negotiable bills by indorsement. Section 2129b. Transfer of bills. Section 2129c. Who may negotiate a bill. Section 2129d. Rights of person to whom a bill has been negc tiated. [ 9 ] Section 2129e. Rights of person to whom a bill has been trans- ferred. Section 2129f. Transfer of negotiable bill without indorsement. Section 2129g. Warranties on sale of bill. Section 2130. Indorser not a guarantor. Section 2130a. No warranty implied from accepting payment of a debt. Section 2130b. When negotiation not impaired by fraud, acci- dent, mistake, duress, or conversion. Section 2130c. Subsequent negotiation. Section 2130d. Form of bill as indicating rights of buyer and seller. Section 2130e. Demand, presentation or sight draft must be paid, but draft on more than three days' time merely accepted before buyer is entitled to the accom- panying bill. Section 2130f. Negotiation defeats render's lien. Section 2130g. When rights and remedies under mortgages and liens are not limited. 2129. Negotiation of Negotiable Bills by Delivery. A nego- tiable bill may be negotiated by delivery where, by the terms of the bill, the carrier undertakes to deliver the goods to the order of a .specified person, and such person or a subsequent indorsee of the bill has indorsed it in blank. 2129a. Negotiation of Negotiable Bills by Indorsement. A negotiable bill may be negotiated by the indorsement of the person to whose order the goods are deliverable by the tenor of the bill. Such indorsement may be in blank or to a specified per- son. If indorsed to a specified person, it may be negotiated again by the indorsement of such person in blank or to another speci- fied person. Subsequent negotiation may be made in like manner. 2129b. Transfer of bills. A bill may be transferred by the holder by delivery, accompanied with an agreement, express or implied, to transfer the title to the bill or to the goods repre- sented thereby. A nonnegotiable bill can not be negotiated, and the indorsement of such a bill gives the transferee no additional right. 2129c. Who May Negotiate a Bill. A negotiable bill may be negotiated by any person in possession of the same, however such possession may have been acquired if, by the terms of the bill, the carrier undertakes to deliver the goods to the order of such person, or if at the time of negotiation the bill is in such form that it may be negotiated upon delivery. [ 10 ] 2129d. Rights of Persons to Whom a Bill Has Been Nego- tiated. A person to whom a negotiable bill has been duly nego- tiated acquires thereby — (a) Such title to the goods as the person negotiating the bill to him had or had ability to convey to a purchaser in good faitt for value, and also such title to the goods as the consignee and consignor had or had power to convey to a purchaser in good faith for value, and (b) The direct obligation of the carrier to hold possession ol the goods for him according to the terms of the bill as fully as if the carrier had contracted directly with him. 2129e. Rights of Person to Whom a Bill Has Been Trans- ferred. A person to whom a bill has been transferred but not negotiated acquires thereby as against the transferor, the title to the goods, subject to the terms of any agreement with the transferor. If the bill is nonnegotiable, such person also acquires the right to notify the carrier of the transfer to him of such bill, and thereby to become the direct obligee of whatever obligations the carrier owed to the transferor of the bill immediately before the notification. Prior to the notification of the carrier by the transferor oi transferee of a nonnegotiable bill, the title of the transferee tc the goods and the right to acquire the obligation of the carrier may be defeated by garnishment or by attachment or execution upon the goods by a creditor of the transferor, or by a notifica- tion to the carrier by the transferor or a subsequent purchaser from the transferor of a subsequent sale of the goods by the transferor. A carrier lias not received notification within the meaning of this section unless an officer or agent of the carrier, the actual or apparent scope of whose duties includes action upon such a notifi- cation, has been notified; and no notification shall be effective until the officer or agent to whom it is given has had time with the exercise of reasonable diligence to communicate with the agent or agents having actual possession or control of "the goods. 2129f. Transfer of Negotiable Bill Without Indorsement. T\'here a negotiable bill is transferred for value by delivery, and the indorsement of the tranferor is essential for negotiation, the transferee acquires a right against the transferor to compel him to indorse the bill, unless a contrary intention appears. The negotiation shall take effect as of the time when the indorsement is actually made. This obligation may be specifically enforced. [ 11 ] 2129g. Warranties on Sale of Bill. A person who negotiates r tiansfers for value a bill by indorsement or delivery, including ne who assigns for value a claim secured by 'a bill, unless a con- 'ary intention appears, warrants — (a) That a bill is genuine; (b) That he has a legal right to transfer it; (c) Tliat he has knowledge of no fact whicli would impair 16 validity or worth of the bill; and (d) That he has a right to transfer the title of the goods, and hiat the goods are merchantable or fit for a particular purpose 'henever such warranties would have been implied, if the contract f the parties had been to transfer witliout a bill the goods ^presented thereby. In the case of an assignment of a claim secured bj' a bill, the ability of the assignor shall not exceed the amount of tlie claim. 2130. Indorser Not a Guarantor, The indorsement of a bill hall not make the indorser liable for any failure on the part of he carrier or previous indorsers of the bill to fulfill their respect- v'e obligations. 2130a. No Warranty Implied From Accepting Payment of a )ebt. A mortgagee or pledgee, or other holder of a bill for ecurity who in good faith demands or receives payment of the ebt for which such bill is security, whether from a party to a raft drawn for such debt or from any other person, shall not be eemed by so doing to represent or to warrant the genuineness if such bill or the quantity or quality of tlie goods therein escribed. 2130b. When Negotiation Not Impaired by Fraud, Accident, /listake. Duress or Conversion. The validity of the negotiation of . bill is not impaired bj- tlie fact that sucli negotiation was a ireach of duty on the part of the person making the negotiation, ir by the fact tliat the owner of the bill was deprived of the lossession of the same by fraud, accident, mistake, duress or onversion, if the person to whom the bill was negotiated, or . person to whom the bill was subsequently negotiated, gave alue therefor, in good faith, without notice of tlie breach of ;uty, or fraud, accident, mistake, duress or conversion. 2130c. Subsequent Negotiation. Where a person having lold, mortgaged, or pledged goods which are in the carrier's pos- iession and for which a negotiable bill has been issued, or having lold, mortgaged, or pledged the negotiable bill representing such joods, continues in possession of the negotiable bill, the subse- [ 12 J quent negotiation thereof by that person under any sale, pledge, or other disposition thereof to any person receiving the same in good faith, for v.alue and without notice of the previous sale, shall have the same effect as if the first purchaser of the goods or bill had expressly authorized the subsequent negotiation. 2130d. Form of Bill as Indicating Rights of Buyer and Seller. Where goods are shipped by the consignor in accordance with a contract or order for their puichase, the form in which the bill is taken by the consignor shall indicate the transfer or retention of the property or right to the possession of the goods as follows: (a) Where by the bill the goods are deliverable to the buyer or to his agent, or to the order of the buyer or of his agent, the consignor thereby transfers the property in the goods to the buyer. (b) Where by the bill the goods are deliverable to the seller or to his agent, or to the order of the seller or of his agent, the seller thereby reserves the property in the goods. But if, except for the form of the bill, the property would have passed to the buyer on shipment of the goods, the seller's property in the goods shall be deemed to be only for the purpose of securing performance by the buyer of his obligations under the contract. (c) When by the bill the goods are deliverable to the order of the buyer or of his agent, but possession of the bill is retained by the seller or his agent, the seller thereby reserves a right to the possession of the goods, as against the buyer. (d) Where the seller draws on the buyer for the price and transmits the draft and bill together to the buyer to secure accept- ance or payment of the draft, the buyer is bound to return the bill if he does not honor the draft, and if he wrongfully retains the bill he acquires no added right thereby. If, however, the bill provides that the goods are deliverable to the buyer, or to the order of the buyer, or is endorsed in blank or to the buyer by the consignee named therein, one who purchases in good faitli, for value, the bill or goods from the buyer, shall obtain the title to the goods, although the draft has not been honored, if such purchaser has received delivery of the bill indorsed by the con- signee named therein, or of the goods, witliout notice of the facts making the transfer wrongful. 2130e. Demand, Presentation or Sight Draft Must Be Paid, But Draft on More Than Three Days' Time Merely Accepted Before Buyer Is Entitled to the Accompanying Bill. Where the seller of goods draws on the buyer for the price of the goods and transmits the draft and a bill of lading for the goods either directly to the buyer or through a bank or other agency, unless a different inten- f [ 13 ] tion on the part of the seller appears, the buyer and all other parties interested shall be justified in assuming: (a) If the draft is by its terms or legal effect payable on demand or presentation or at sight, or not more than three days thereafter (whether such three days be termed days of grace or not), that the seller intended to require payment of the draft before the buyer should be entitled to receive or retain the bill. (b) If the draft is by its terms payable on time, extending beyond three days after demand, presentation or sight (whether such three days be termed days of grace or not), that the seller intended to require acceptance, but not pajTnent of the draft before the buyer should be entitled to receive or retain tiie bill. The provisions of this section are applicable whether by the terms of the bill the goods are consigned to the seller, or to his order, or to the buyer, or to his order, or to a third person, or to his order. 2130f. Negotiation Defeats Vendor's Lien. Where a nego- tiable bill has been issued for goods, no seller's lien or right of stoppage in transitu shall defeat the rights of any purchaser for value in good faith to whom sucli bill has been negotiated, whether such negotiation be prior or subsequent to the notification to the carrier wlio issued such bill of the seller's claim to a lien or right of stoppage in transitu. Nor shall the carrier be obliged to deliver or justified in delivering the goods to an unpaid seller unless such bill is first surrendered for cancellation. 2130g. When Rights and Remedies Under IVIortgages and Liens Are Not Limited. , Except as provided in section two tiiou- sand one hundred thirty f of tliis code, nothing in this article shall limit the rights and remedies of a mortgagee or lienholder whose mortgage or lien on goods would be valid, apart from this article, as against one who for value and in good faith purchased from the owner, immediately prior to the time of delivery to the carrier, the goods which are subject to the mortgage or lien and obtained possession of them. SUBDIVISION TV. Criminal Offenses. Section 2131. I.ssue of bill for goods not received. Section 2131a. Issue of bill containing false statement. Section 2131b. Issue of duplicate bills not so marked. Section 2131c. Negotiation of bill for mortgaged goods. Section 2131d. Negotiation of bill when goods are not in carrier's possession. [ 14 ] Section 2131c. Inducing carrier to issue bill when goods have not been received. Section 2131f. Issue of nonnegotiable bill not so marked. 2131. Issue of Bill for Goods Not Received. Any officer, agent, or sei-vant of a carrier, who with intent to defraud issues or aids in issuing a bill knowing that all or any part of the goods for ■which such bill is issued have not been received by such carrier, or by an agent of such carrier or by a connecting carrier, or are not under the carrier's control at the time of issuing such bill, shall be guilty of a crime, and upon conviction shall be punished for each offense by imprisonment not exceeding five years, or by a fine not exceeding five thousand dollars or by both. 2131a. Issue of Bill Containing False Statement. Any officer, agent, or servant of a carrier, who with intent to defraud issues or aids in issuing a bill for goods, knowing that it contains any false statement, shall be guilty of a crime, and upon conviction shall be punished for each offense by imprisonment not exceeding one year, or by a fine of not exceeding one thousand dollars, or by both. 2131b. Issue of Duplicate Bills Not So Marked. Any officer, agent, oi- servant of a carrier, wlio with intent to defraud issues or aids in issuing a duplicate or additional negotiable bill for goods in violation of the provisions of section two thousand one hundred twenty-six f of this code, knowing that a former negotiable bill for the same goods or any part of them is outstanding and uncan-. celled, shall be guilty of a crime, and upon conviction shall be punished for each offense by imprisonment not exceeding five years, or by a fine not exceeding five thousand dollars, or by both. 2131c. Negotiation of Bill for Mortgaged Goods. Any person who ships goods to which he has not title, or upon which there is a lien or mortgage, and who takes for such goods a negotiable bill which he afterwards negotiates for value with intent to deceive and without disclosing his want of title or the existence of the lien or mortgage, shall be guilty of a crime, and upon conviction, shall be punished for each offense by imprisonment not exceeding one year, or by a fine not exceeding one thousand dollars, or by both. 2131d. Negotiation of Bill When Goods Are Not in Carrier's Possession. Any person who with intent to deceive negotiates or transfers for value a bill knowing that any or all of the goods [ 15 ] which by the terms of such bill appear to have been received for transportation by the carrier which issued the bill, are not in the possession or control of such carrier, or of a connecting carrier, without disclosing this fact, shall be guilty of a crime, and upon conviction shall be punished for each offense by imprisonment not exceeding five years, or by a fine not exceeding five thousand dollars, or by both. 2131e. Inducing Carrier to Issue Bill When Goods Have Not Been Received. Any person who with intent to defraud secures the issue by a carrier oi a bill knowing that at the time of such issue, any or all of the goods described in sucli bill as received for trans- portation have not been received by such carrier, or an agent of such carrier or a connecting carrier, or are not under the carrier's control, by inducing an officer, agent, or servant of such carrier falsely to believe that sucli goods have been received by such carrier, or are under its control, sliall be guilty of a crime, and upon conviction shall be punished for eacli offense by imprisonment not exceeding five years, or by a fine not exceeding five thousand dollars, or by both. 2131f. Issue of Nonnegotiable BUI Not So Marked. Any person who with intent to defraud issues or aids in i.ssuing a nonnegotiable bill without the words "not negotiable" placed plainly upon the face thereof, shall be guilty of a crime, and upon conviction shall be punished for each offense by imprisonment not exceeding five years or by a fine not exceeding five thousand dollars, or by both. SUBDIVISION V. Interpretation. Section 2132. Rule for cases not provided for in this article. Section 21.32a. Interpretation shall give effect to purpose of uni- formity. Section 2132b. Definitions. Section 2132c. Article does not apply to existing bills. Section 2132d. Inconsistent legislation repealed. 2132. Rule for Cases Not Provided for In This Article. In any case not provided for in this article, the rules of law and equity including the law merchant, and in particular the rules relating to the law of principal and agent, executors, administrators and trustees, and to the effect of fraud, misrepresentation, duress or coercion, accident, mistake, bankruptcy, or other invalidating cause, shall govern. [ 16 ] 2132a. Interpretation Shall Give Effect to Purpose O' formity. This article shall be so interpreted and C( strued effectuate its general purpose to make uniform the law of states wliich enact it. 'ti 'I 2132b. Definitions. (1) In this article, unless the context, or subject matter otherwise requires — "Action" includes counterclaim, set-off, and suit in equity. "Bill" means bill of lading. "Consignee" means the person named in the bill as the person to whom delivei->' of the goods is to be made. "Consignor" means the person named in the bill as the person from whom the goods have been received for shipment. "Goods" means merchandise or chattels in course of transpor- tation, or which have been or are about to be transported. "Holder" of a bill means a person who has both actual posses- sion of such bill and a right of property therein. "Order" means an order by indorsement on the bill. "Owner" does not Include mortgagee or pledgee. "Person" includes a corporation or partnership or two or more persons having a joint or common interest. To "purchase" includes to take as mortgagee and to take as pledgee. "Value" is any consideration sufficient to support a simple con- tract. An antecedent or preexisting obligation, whether for money or not, constitutes value where a bill is taken either in satisfaction thereof or as security therefor. (2) A thing is done "in good faith," within the meaning of this article, when it is in fact done honestly, whether it be done neglt- gently or not. 2132c. Article Does Not Apply to Existing Bills. The provi- sions of this article do not apply to bills made and delivered prior to the taking effect thereof. Sec. 2. Article three of ciiapter three of title seven of part four of division three of the Civil Code is hereby repealed; provided, however, that nothing contained herein shall be construed as limiting in any way the powers of the railroad commission under the public utilities act, or any reenactment, ievision or amend- ment thereof. (In effect 90 days from and after April 22, 1919. Stats. 1919, Chap. 364.) Civ. Code, 1919. 609 CARRIAGE OF PROPERTY. BILL OF LADING. § 2132 freight so as to identify it, stating the name of the consignor, the terms of the contract for carriage, and agreeing or direct- ing that the freight be delivered to the order or assigns of a sp' 'tied person at a specified place. Issuing fictitious bill of lading: Pen. Code, § 577. Legislation § 2126. Enacted March 21, 1872; based on Field's Draft, -inL V Y. Civ. Code, § IIDS. sLr;j§ 2127.' Bill of lading' negotiable. All the title to the freight which the first holder of a bill of lading had when he received it, passes to every subsequent indorsee thereof in good faith and for value, in the ordinary course of business, with like effect and in like manner as in the case of a bill of ex- change. Legislation § 2127. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1109. § 2128. Same. When a bill of lading is made to "bearer," or in equivalent terms, a simple transfer thereof, by delivery, conveys the same title as an indorsement. Legislation § 2128. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1110. § 2129. Effect of bill of lading on rights, etc., of carrier. A bill of lading does not alter the rights or obligations of the carrier, as defined in. this chapter, unless it is plainly incon- sistent therewith. Legislation § 2129. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1111. § 2130. Bills of lading to be given to consignor. A carrier must sul)scribe and deliver to the consignor, on demand, any reasonable number of bills of lading, of the same tenor, ex- pressing truly the original contract for carriage; and if he refuses to do so, the consigner may take the freight from him, and recover from him, besides, all damage thereby occasioned. Duplicate receipts must be marked "Duplicate": Pen. Code, § 580. Legislation § 2130. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1112. § 2131. Carrier exonerated by delivery according to bill of lading. A carrier is exonerated from liability for freight by delivery thereof, in good faith, to any holder of a bill of lad- ing therefor, properly indorsed, or made in favor of the bearer. Bill of lading negotiable: See ante, § 2128. Legislation § 2131. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1113. § 2132. Carrier may demand surrender of bill of lading before delivery. When a carrier has given a bill of lading, or Civ. Codn— 39 § 2140 CIVIL CODE. > 610 other instrument substantially equivalent thereto, he may re- quire its surrender, or a reasonable indemnity against claims thereon, before delivering the freight. Legislation § 2132. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1114. AETICLE IV. Freightage. § 2136. When freightage is to be paid. § 2137. Consignor, when liable for freightage. § 2138. Consignee, when liable. § 2139. Natural increase of freight. § 2140. Apportionment by contract. § 2141. Same. § 2142. Apportionment according to distance. § 2143. Freight carried further than agreed, etc. § 2144. Carrier's lien for freightage, services and advances. § 2136. When freightage is to be paid. A carrier may re- quire his freightage to be paid upon his receiving the freight; but if he does not demand it then, he cannot until he is ready to deliver the freight to the consignee. Freightage, defined: Ante, § 2110. Freight, defined: Ante, § 2110. Legislation § 2136. Enacted March 21, 1872; based on Field's Draft, ' N. Y. Civ. Code, § 1115. § 2137. Consignor, when liable for freightage. The con- signor of freight is presumed to be liable for the freightage, but if the contract between him and the carrier provides that the consignee shall pay it, and the carrier allows the consignee to take the freight, he cannot afterwards recover the freightage from the consignor. Legislation § 2137. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 1116. § 2138. Consignee, when liable. The consignee of freight is liable for the freightage, if he accepts the freight with notice of the intention of the consignor that he should pay it. -~- Legislation § 2138. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 1117. § 2139. Natural increase of freight. No freightage can be charged upon the natural increase of freight. Legislation § 2139. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 1118. § 2140. Apportionment by contract. If freightage is ap- portioned by a l)ill of lading or other contract made between a consignor and carrier, the carrier is entitled to payment, ac- cording to the apportionment, for so much as he delivers. 611 CARRIAGE OF PROPERTY. FREIGHTAGE. § 2144 Legislation § 2140. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1119. § 2141. Same. If a part of the freight is accepted by a con- signee, without a specific objection that the rest is not de- livered, the freightage must be apportioned and paid as to that part, though not apportioned in the original contract. Legislation § 2141. Enacted March 21, 1872; based on Field's Draft, "jSr. Y. Civ. Code, § 1120. §2142. Apportionment according* to distance. If a con- signee voluntarily receives freight at a place short of the one appointed for delivery, the carrier is entitled to a just pro- portion of the freightage, according to distance. If the car- rier, being ready and willing, offers to complete the transit, he is entitled to the full freightage. If he does not thus offer comi)letion, and the consignee receives the freight only from necessity, the carrier is not entitled to any freightage. Legislation § 2142. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1121. § 2143, Freight carried further than agreed, etc. If freight is carried further, or more expeditiously, than was agreed upon by the parties, the carrier is not entitled to additional compen- sation, and cannot refuse to deliver it, on the demand of the consignee, at the place and time of its arrival. Legislation § 2143. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1122. § 2144. Carrier's lien for freightage, services, and advances. A carrier has a lien for freightage and for services rendered at request of shipper or consignee in and about the transportation, care and preservation of the property, and he also has a lien for money advanced at request of shipper or consignee to dis- charge a prior lien. His rights to such lien are regulated by the title on liens. [Amendment approved 1909 ; Stats. 1909, p. 1000.] Liens, generally: See post, §§ 2872 et seq. Lien on passenger's luggage: Post, § 2191. Lien for freight; See post, § 2204. Legislation § 2144. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1123), and then read: "A carrier has a lien for freightage, which is regulated by the litle on liens." 2. Amended by Stats. 1909, p. 1000. § 2152 CIVIL CODE. 612 AETICLE V. General Average. § 2148. Jettison and general average, what. § 2149. Order of jettison. § 2150. By whom made. § 2151. Loss, how borne. § 2152. General average loss, how adjusted. § 2153. Values, how ascertained'. § 2154. Things stowed on deck. § 2155. Application of the foregoing rules. §2148. Jettison and general average, what. A carrier by water may, when in case of extreme peril it is necessary for the safety of the ship or cargo, throw overboard, or otherwise sacrifice, any or all of the cargo or appurtenances of the ship. Throwing property overboard for such purpose is called jettison, and the loss incurred thereby is called a general aver- age loss. Legislation § 2148. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 1124. § 2149. Order of jettison. A jettison must begin with the most bulky and least valuable articles, so far as possible. Legislation § 2149. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 1125. § 2150. By whom made. A jettison can be made only by authority of the master of a ship, except in case of his dis- ability, or of an overruling necessity, when it may be made by any other person. Legislation § 2150. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 1126. § 2151. Loss, how borne. The loss incurred by a jettison, when lawfully made, must be borne in due proportion by all that part of the ship, appurtenances, freightage, and cargo for the benefit of Avhich the sacrifice is made, as well as by the owner of the thing sacrificed. Legislation § 2151. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 1127. § 2152. General average loss, how adjusted. The propor- tions in which a general average loss is to be borne must be ascertained by an adjustment, in Avhich the owner of each sep- arate 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 there, is valid everywhere. Legislation § 2152. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 1128. 613 CARRIAGE OF MESSAGES. § 2161 § 2153. Values, how ascertained. In estimating values for the purpose of a general average, the ship and appurtenances must be valued as at the end of the voyage, the freightage at one half the amount due on delivery, and the cargo as at the time and place of its discharge ; adding, in each case, the : amount made good by contribution. Legislation § 2153. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1129. § 2154. Things stowed on deck. The owner of things stoAved on deck, in case of their jettison, is entitled to the benefit of a general average contribution only in case it is usual to stow such things on deck upon such a voyage. Legislation § 2154. Enacted March 21, 1872; based on Field's Draft, X. Y. Civ. Code, § 1130. § 2155. Application of the foregoing rules. The rules here- in stated concerning jettison are equally applicable to every other voluntary sacrifice of property on a ship, or expense necessarily incurred, for the preservation of the ship and cargo from extraordinary perils. Legislation § 2155. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, §1131. CHAPTER IV. Carriage of Messages. § 2161. Obligation of carrier of messages. § 2162. Degree of care and diligence required. § 2161. Obligation of carrier of messages. A carrier of messages for reward, other than by telegraph or telephone, must deliver them at the place to which they are addressed, or to the person for whom they are intended. Such carrier, by telegraph or telephone, 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 office, compensa- tion may be charged for a messenger employed by the carrier. [Amendment approved 190.5; Stats. 1905, p. 627.] Neglect or postponement in delivery: See Pen. Code, § 638. Order of transmitting messages: Post, § 2208. Refusal to deliver message, penalty: Post, § 2209. Carrier of telegraphic messages: See post, §§ 2207 et seq. Legislation § 2161. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1132), and then read: "A carrier of messages for reward must deliver them at the place to which they are addressed, or to the persons for whom they are intended." 2168 CIVIL CODE. 614 2. Amended by Code Amdts. 1873-7i, p. 24S, and differed from the amendment of 1905 (the present section), in not having the words "or telephone," after "telegraph," in either instance. 3. Amendment by Stats. 1901, p. 413; unconstitutional. See note, § 4, ante. 4. Amended by Stats. 1905, p. 627, adding "or telephone" after "tele- graph" in both instances; the code commissioner saying of the addition, "thus making the section applicable to both telegraph and telephone companies." § 2162. Degree of care and diligence required. A carrier of messages for reward, must use great care and diligence in the transmission and delivery of messages. [Amendment approved 1874; Code Amdts. 1873-74, p. 249.] Legislation § 2162, 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1133), and then read: "A carrier of messages for reward must use great care and diligence in the transmission an,d delivery of messages. A carrier by telegraph must use the utmost dili- gence therein." 2. Amended by Code Amdts. 1873-74, p. 249. CHAPTER Y. Common Carriers. Article I. Common Carriers in General. §§ 2168-2177. II. Common Carriers of Persons. §§ 21S0-2191. in. Common Carriers of Propertv. §§ 2194-2204. IV. Common Carriers of Messages. §§ 2207-2209. AETICLE I. Common Carriers in General. § 2168. Common carrier, what. § 2169. Obligation to accept freight. § 2170. Obligation not to give i2reference. § 2171. What preferences he must give. § 2172. Starting. § 2173. Compensation. § 2174. Obligations of carrier altered only by agreement. § 2175. Certain agreements void. § 2176. Effect of written contract. § 2177. Loss of valuable letters. § 2168. Common carrier, what. Every one who offers to the public to carry persons, property, or messages, excepting only telegraphic messages, is a common carrier of whatever he thus offers to carry. [Amendment approved 1874; Code Amdts. 1873-74, p. 249.] Carriage, in general: Ante, §§ 2083 et seq. Inland and marine carriers, defined: Ante, § 2087. Rights and liabilities of carriers: See post, Carriers of Persons, §§2180 et seq.; Carriers of Property, §§ 2194 et seq. Rights and duties of carriers by sea: See ante, § 2088. 615 COMMON CARRIERS IN GENERAL. § 2172 - Legislation § 2168. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1134), and then read: "Every one who offers to the public to carry persons, property, or messages, is a common carrier of whatever he thus offers to carry." 2. Amended by Code Amdts. 1873-74, p. 249. § 2169. Obligation to accept freight. A common carrier must, if able to do so, accept and carry whatever is offered to liim, at a reasonable time and place, of a kind that he under- takes or is accustomed to carry. Refusal by railroad to carry freight or passengers: Ante, § 482. Want of room: See post, § 2185. Legislation § 2169. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1135. § 2170. Obligation not to give preference. A common car- rier 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, lying wholly within this state, shall establish a schedule time for the start- ing of trains or vessel from their respective stations or wharves, of which public notice shall be given, and shall, weather per- mitting, except in case of accident or detention caused by con- necting lines, start their said trains or vessel at or within ten minutes after the schedule time so established and notice given, under a penalty of tAvo hundred and fifty dollars for each neglect so to do, to be recovered by action before any court of competent jurisdiction, upon comj)laint filed by the district attorney of the county in the name of the people, and paid into the common-school fund of the said county. [Amendment approved 1880 ; Code Amdts. 1880, p. 2.] Time-table. Railroad: See ante, § 481; and, generally, post, § 2172. Legislation § 2170. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1136), and then read: "A common carrier must not give preference, in time, price, or otherwise, to one person over another, except where expressly authorized by statute." 2. Amended by Code Amdts. 1880, p. 2. 3. Amendment by Stats. 1901, p. 414; unconstitutional. See note, § 4, ante. § 2171. What preferences he must give. A common carrier must always give a preference in time, and may give a prefer- ence in price, to the United States and to this state. Legislation § 2171. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1137. § 2172. Starting. A common carrier must start at such time and place as he announces to the public, unless detained by accident or the elements, or in order to connect with carriers § 2176 CIVIL CODE. 616 on other lines of travel. [Amendment approved 1874; Code Amdts. 1873-74, p. 249.] starting, time of: See ante, § 2170. Delay: See post, § 2196. Legislation § 2172. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1138), and then read: "A common carrier must start at such time and place as he announces to the public." 2. Amended by Code Amdts. 1873-74, p. 249. 3. Amendment by Stats. 1901, p. 414; unconstitutional. See note, § 4, ante. § 2173. Compensation. A common carrier is entitled to a reasonable compensation and no more, which he may require to be paid in advance. If payment thereof is refused, he may' refuse to carry. Lien for freight: Ante, § 2144. Lien on luggage of passenger: Post, § 2191. Legislation § 2173. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 1139. §2174. Obligations of carrier altered only by agreement. The obligations of a common carrier cannot be limited by gen- eral notice on his part, but may be limited by special contract. [Amendment approved 1874; Code Amdts. 1873-74, p. 249.] Compare with post, §§ 2176, 2200. Limiting liability by special contract: Post, § 2175. Legislation § 2174. 1. Enacted March 21, 1872 (based on Field's Draft, iSr. Y. Civ. Code, § 1140), and then read: "The rights and obliga- tions of a common carrier cannot be altered by notice on his part, or by any other means, except a written agreement between him and the person with whom he deals." 2. Amended by Code Amdts. 1873-74, p. 249. § 2175. Certain agreements void. A common carrier can- not be exonerated, by any agreement made in anticipation thereof, from liability for the gross negligence, fraud, or will- ful wrong of himself or his servants. Contract exempting one from liability for negligent or unlawful acts, illegal: See ante, § 1668. Legislation § 2175. Enacted March 21, 1872; based on Field's Di^ft, N. Y. Civ. Code, § 1141. § 2176. Effect of written contract. A passenger, consignor, or consignee, by accepting a ticket, bill of lading, or written contract for carriage, Avith a knowledge of its terms, assents to the rate of hire, the time, place, and manner Jot delivery therein stated ; and also to the limitation stated therein upon the amount of the carrier's liability in case property carried in packages, trunks, or boxes, is lost or injured, when the value of such property is not named; and also to the limitation stated therein to the carrier's liability for loss or injury to live ani- 617 COMMON CARRIERS OF PERSONS. § 2180 mals carried. But his assent to any other modification of the carrier's obligations contained in such instrument can be mani- fested only by his signature to the same. [Amendment ap- proved 1874; Code Amdts. 1873-74, p. 249.] Legislation § 2176. 1. Enacted March 21, 1872 (baserl on Field's Draft, N. Y. Civ. Code, § 1142), (1) the first sentence then ending with the words "delivery therein stated," and (2) the final sentence reading. "But his assent to any other modification of the carrier's rights or obligations contained in such instrument can only be manifested by his signature to the same." 2. Amended by Code Amdts. 1873-74, p. 249. § 2177. Loss of valuable letters. A common carrier is not responsible for loss or miscarriage of a letter, or package hav- ing the form of a letter, containing money or notes, bills of exchange, or other papers of value, unless he be informed at the time of its receipt of the value of its contents. Messages, carriers of: See ante, § 2161. Loss of valuable letters: See ante, § 2177. Declaring value of property: See post, § 2200. Legislation § 2177. Added by Code Amdts. 1873-74, p. 250. AETICLE II. Common Carriers of Persons. § 2180. Obligation to carry luggage. § 2181. Baggage to be carried by common carriers. § 2182. Liability for luggage. § 2183. Luggage, how carried and delivered. § 2184. Obligation to provide vehicles. § 2185. Seats for passengers. § 2186. Regulations for conduct of business. § 2187. Fare, when payable. § 2188. Ejection of passengers. § 2189. Passenger who has not paid fare. § 2190. Fare not payable after ejection. § 2191. Carrier's lien. § 2180. Obligation to carry luggag'e. A common carrier of persons, unless his vehicle is fitted for the reception of persons exclusively, must receive and carry a reasonable amount of baggage for each passenger without charge, except for an excess of weight over one hundred pounds to a passenger; if such carrier is a proprietor of a stage line, he need not receive and carry for each passenger l)y such stage line, without charge, more than sixtv pounds of l)aggage. [Amendment approved 1905; Stats. 1905, p. 615.1 Legislation § 2180. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, §1143), and then read: "A common carrier of persons, unless his vehicle is fitted for the reception of ])assengers ex- clusively, must receive and carry a reasonable amount of luggage for each passenger, without any charge except for an excess of weight over one hundred pounds to a passenger." § 2182 CIVIL CODE. 618 2. Amended by Code Amdts. 1877-78, p. 87, (1) changing "passen- gers" to "persons" after "reception of," (2) omitting "any" before "charge," and (3) adding the proviso, then reading, "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 sixty pounds of luggage." 3. Amendment by Stats. 1901, p. 414; unconstitutional. See note, § 4, ante. 4. Amended by Stats. 1905, p. 615; the code commissioner saying, "The present [former] section would seem to i^rohibit a carrier by stage from receiving more than sixty pounds of luggage, wherein it was manifestly intended only to relieve him, at his election, from receiving a greater amount." § 2181, Bag-gage to be carried by common carriers. Lug- gage may consist of whatever the passenger takes with him for his personal use and convenience, according to the habits or wants of the particular class to which he belongs, either with reference to the important necessities or to the ultimate purposes of his journey. Luggage within the meaning of this section shall include the samples, case, wares, appliances and catalogues of commercial travelers or their employers, used by thein for the purpose of transacting their business and car- ried with them solely for that purpose, when securely packed and locked in substantial trunks or sample cases of convenient shape and weight for handling. No crate, cover, or other pro- tection shall be required for any bicycle carried as luggage, but no passenger shall be entitled to carry as- luggage more than one bicvcle. [Amendment approved 1911 ; Stats. 1911, p. 638.] Legislation § 2181. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1144). and then read: "Luggage may consist of any articles intended for the use of a passenger while traveling, or for his personal equipment." 2. Amended by Stats. 1897, p. 4. to read: "Luggage may consist of whatever the passenger takes with him for his personal use and con- venience, according to the habits or wants of the particular class to which he belongs, either with reference to the immediate necessities, or to the ultimate purpose of the journey. No crate, cover, or other protection shall be required for any bicycle carried as luggage, but no passenger shall be entitled to carry as luggage more than one bicycle." 3. Amended by Stats. 1911, p. 638. § 2182. Liability for luggage. The liability of a carrier for luggage received by him Avith a passenger is the same as that of a common carrier of property. Liability of carriers, generally: See post, §§ 2194 et seq. Lien on baggage for fare: See post, § 2191. Legislation § 2182. Enacted March 21, 1872; based on Field's Draft N. Y. Civ. Code, § 1145. 619 COMMON CARRIERS OF PERSONS. § 2187 § 2183. Luggage, how carried and delivered. A common carrier must cleliA'er every passenger's luggage, whether within the prescribed weight or not, immediately upon the arrival of the passenger at his destination ; and, unless the vehicle would be overcrowded or overloaded thereby, must carry it on the same vehicle by Avhich he carries the passenger to whom it be- longed, except that Avhere luggage is transported by rail, it must be checked and carried in a regular baggage-car; and whenever passengers neglect or refuse to have their luggage so checked and transported, it is carried at their risk. [Amendment approved 1874; Code Amdts. 1873-74, p. 250.] Duty to furnish check: See ante, § 479. Legislation § 2183. 1. Enacted March 21, 1872 (based on Field's Draft, IST. Y. Civ. Code § 1146), the section then ending with the words "to whom it belongs," the latter word being changed to "belonged" and the exception added in 1873-74. 2. Amended by Code Amdts. 1873-74, p. 2-50. § 2184. Obligation to provide vehicles. A common carrier of persons must provide a sufficient number of vehicles to ac- commodate all the passengers Avho can be reasonably expected to require carriage at any one time. Seats for passengers: See post, § 218-5. Legislation § 2184. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1147. § 2185. Seats for passeng-ers. A common carrier of persons must provide evoi-y passenger with a seat. He must not over- load his vehicle by receiving and carrying more passengers than its rated capacity alloAvs. Compare with § 483, ante. Duty to carry all who apply: See ante, § 2169. Legislation § 2185. Enacted March 21, 1872; based on Field's Draft, X. Y. Civ. Code, § 1148. § 2186. Regulations for conduct of business. A common carrier of persons may make rules for the conduct of his busi- ness, and may require passengers to conform to them, if they are lawful, public, uniform in their application, and reasonable. RvUes and regulations: See ante, § 465, subds. la, 11, and § 484. Legislation § 2186. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1149. § 2187. Fare, when payable. A common carrier may de- mand the fare of passengers, eitlier at starting or at any subse- quent time. Penalty for overcharge: Pen. Code, § 52.5. Legislation § 2187. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1150. § 2194 CIVIL CODE. 620 § 2188. Ejection of passengers. A passenger who refuses to pay his fare or to conform to any lawful regulation of the carrier, may be ejected from the vehicle by the carrier. But this must be done with as little violence as possible, and at any usual stopping-place or near some dAvelling-house. Ejecting passenger for not paying fare: Ante, § 487. Legislation § 2188. Enacted March 21, 1872; based on Field's Draft, JSr. Y. Civ. Code, § 1151. § 2189. Passenger who has not paid fare. A passenger upon a railroad train avIio has not paid his fare before enter- ing the train, if he has been afforded an opportunity to do so, must, upon demand, pay ten per cent in addition to the regular rate. Ejecting passenger for non-payment of fare: Ante, § 487. Legislation § 2189. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1151. § 2190. Fare not payable after ejection. After having ejected a passenger, a carrier has no right to require the pay- ment of any part of his fare. Legislation § 2190. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1152. §2191. Carrier's lien. A common carrier has a lien upon the luggage of a passenger for the payment of such fare as he is entitled to from him. This lien is regulated by -the title on liens. See general principle stated in regard to lien for work and labor performed about personalty: Post, § 3051. Lien for freight: Ante, § 2144. Legislation § 2191. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1153. AETICLE III. Common Carriers of Property. § 2194. Liability of inland carriers for loss. § 2195. When exemptions do not apply. § 2196. Liability for delay. § 2197. Liability of marine carriers. § 2198. Same. § 2199. Perils of sea, what. § 2200. Consignor of valuables to declare their nature. § 2201. Delivery of freight beyond usual route. § 2202. Proof to be given in case of loss. § 2203. Carrier's services, other than carriage and delivery, § 2204. Sale of perishable property for freight. § 2194. Liability of inland carriers for loss. Unless the con- signor accompanies the freight and retains exclusive control thereof, an inland common carrier of property is liable, from 621 COMMON CARRIERS OF PROPERTY. § 2198 the time that he accepts until he relieves himself from liability pursuant to sections two thousand one hundred and eighteen to two thousand one hundred and twenty-two, for the loss or injury thereof from any cause whatever, except : 1. An inherent defect, vice, or weakness, or a spontaneous action, of the property itself ; 2. The act of a public enemy of the United States, or of this state ; 3. The act of the law ; or, 4. Any irresistible superhuman cause.. Inland carrier, defined: See ante, § 2087. Liability as warehouseman: See ante, § 2120. Termination of liability: See ante, §§ 2118-2121. Selling perishable articles: See infra, § 2204. Legislation § 2194. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1154. § 2195. When exemptions do not apply. A common car- rier is liable, even in the cases excepted by the last section, if his want of ordinary care exposes the property to the cause of the loss. [Amendment approved 1905; S^tats. 1905, p. 615.] Legislation § 2195. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1155), and then read: "A common carrier is liable, even in the cases excepted by the last section, if his ordinary negligence exposes the property 'to the cause of the loss." 2. Amendment by Stats. 1901, p. 414; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1905, p. 615. § 2196. Liability for delay. A common carrier is liable for delay only Avhen it is caused by his want of ordinary care and diligence. [Amendment approved 1874 ; Code Amdts. 1873-74, p. 251.] Legislation § 2196. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1156), and then read: "A common carrier is liable for delay only when it is the effect of his ordinary negligence." 2. Amended by Code Amdts. 1873-74, p. 251. §2197. Liability of marine carriers. 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. Legislation § 2197. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1157. § 2198. Same. Tlic liability of a common carrier by sea is further regulated by acts of Congress. Duties and rights defined by acts of Congress: See also, ante, § 2088. Legislation § 2198. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1158. § 2202 CIVIL CODE. 622 .§ 2199. Perils of sea, what. Perils of the sea are from : 1. Storms and Avaves ; 2. Eocks, shoals, and rapids ; 3. 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. Legislation § 2199. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1159. § 2200. Consignor of valuables to declare their nature. A common carrier of gold, silver, platina, or precious stones, or of imitations thereof, in a manufactured or unmanufactured state ; of timepieces of any description ; of negotiable paper or other valuable writings ; of pictures, glass, or chinaware ; of statuary, silk, or laces ; or of plated ware of any kind, is not liable for more than fifty dollars upon the loss or injury of any one package of such articles, unless he has notice, upon his receipt thereof, by mark upon the package or otherwise, of the nature of the freight; nor is such. carrier liable upon any package carried for more than the value of the articles named in the receipt or the bill of lading. [Amendment ap- proved 1874; Code Amdts. 1873-74, p. 251.] Legislation § 2200. 1. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 1160. 2. Amended by Code Amdts. 1873-71, p. 251, inserting (1) "of statu- ary, silk, or laces; or of plated ware of any kind"; (2) "nor is such carrier liable upon any package carried for more than the value of the articles named in the receipt or tlie bill of lading." § 2201. Delivery of freight beyond usual route. If a com- mon carrier accepts freight for a place beyond his usual route, he must, unless he stipulates otherwise, deliver it at the end of his route in that direction to some other competent carrier carrying to the place of address, or connected with those who thus carry, and his liability ceases upon making such deliver3^ Delivery, in general: See ante, §§ 2118, 2119. Legislation § 2201. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1161. § 2202. Proof to be given in case of loss. If freight ad- dressed to a place beyond the usual route of the common car- rier who first received it is lost or injured, he must, within a reasonable time after demand, give satisfactory proof to the consignor that the loss or injury did not occur while it was in his charge, or he Avill be himself liable therefor. Legislation § 2202. Eaacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1162. 623 COMMON CARRIERS OF MESSAGES. § 2208 § 2203. Carrier's services, other than carriage and delivery. In respect to any service rendered by a common carrier about freight, other than its carriage and delivery, his rights and obligations are defined by the titles on deposit and service. Deposit: See ante, §§ 1813 et seq. Service: See ante, §§ 1965 et seq. Legislation § 2203. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1163. § 2204. Sale of perishable property for freight. If, from any cause other than A\'ant of ordinary care and diligence on his part, a common carrier is unable to deliver perishable prop- erty 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. Penalty for overcharges: Pen. Code, § 525. Lien for freight: See ante, § 2144. Legislation § 2204. Added by Code Amdts. 1873-74, p. 251. ARTICLE IV. Common Carriers of Messages. § 2207. Order of transmission of telegraphic messages. § 2208. Order in other cases. § 2209. Damages when message is refused or postponed. §2207. Order of transmission of telegraphic messages. A carrier of messages by telegraph must, if it is practicable, transmit every such message immediately upon its receipt. But if this is not practicable, and several messages accumulate upon his hands, he must transmit them in the following order : 1. Messages from public agents of the United States or of this state, on public business ; 2. Messages intended in good faith for immediate publica- tion in newspapers, and not for any secret use ; 3. Messages giving information relating to the sickness or death of any person; 4. Other messages in the order in Avhich they were received. Carriers of messages: See ante, §§ 2161, 2162. Neglect or postponement in transmission: See Pen. Code, § 638. Legislation § 2207. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1164. 2. Amendment by Stats. 1901, p. 414; unconstitutional. See note, § 4, ante. § 2208. Order in other cases. A common carrier of mes- sages, otherwise than l)y telegraph, must transmit messages in the order in which he receives them, except messages from agents of the United States or of this state, on public business, to which he must always give priority. But he may fix upon § 2215 CIVIL CODE. 624 certain times for the simultaneous transmission of messages previously received. Delivery of messages: See ante, § 2161. Legislation § 2208. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1165. 2. Amendment by Stats. 1901, p. 415; unconstitutional. See note, § 4, ante. § 2209. Damages v^^hen message is refused or postponed. Every jierson whose messapre is refused or postponed, contrary to the provisions of this chapter, is entitled to recover from the carrier his actual damages, and fifty dollars in addition thereto. Refusal to receive message: See post, § 3315. Legislation § 2209. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1166. TITLE VIII. Trusts. Chapter I. Trusts in General. Articles I-III. §§ 2215-2244. II, Trusts for the Benefit of Third Persons. Articles I-VI. §§ 2250-2289. CHAPTER I. Trusts in General. Article I. Nature and Creation of a Trust. §§ 2215-2224. II. Obligations of Trustees. §§ 2228-2239. III. Obligations of Third Persons. §§ 2243, 2244. ARTICLE I. Nature and Creation of a Trust. § 2215. Trusts classified. § 2216. Voluntary trust, what. § 2217. Involuntary trust, what. * § 2218. Parties to the contract. •§2219. What constitutes one a trustee. § 2220. For what purpose a trust may be created. § 2221. Voluntary trust, how created as to trustor. § 2222. How created as to trustee. § 2223. Involuntary trustee, who is. § 2224. Involuntary trust resulting from fraud, mistake, etc. § 2215. Trusts classified. A trust is either : 1. Voluntary ; or, 2. Involuntary. Legislation § 2215. Euacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1167. 625 NATURE AND CREATION OP TRUSTS. § 2221 § 2216. Voluntary trust, what. A voluntary trust is an obligation arising out of a personal confidence reposed in, and voluntarily accepted by, one for the benefit of another. Legislation § 2216. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1168. § 2217. Involuntary trust, what. An involuntary trust is one which is created by operation of law. Involuntary trust: See post, §§ 2223, 2224, 2243. Legislation § 2217. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1169. § 2218. Parties to the contract. The person whose confi- dence creates a trust is called the trustor ; the person in whom the confidence is reposed is called the trustee ; and the person for whose benefit the trust is created is called the beneficiary. Legislation § 2218. ' Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1170. § 2219. What constitutes one a trustee. Every one who voluntarily assumes a relation of personal confidence with an- other is deemed a trustee, within the meaning of this chapter, not only as to the person who reposes such confidence, but also as to all persons of whose affairs he thus acquires information which was given to such person in the like confidence, or over whose affairs he, by such confidence, obtains any control. Legislation § 2219. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1171. § 2220. For what purpose a trust may be created. A trust may be created for any purpose for which a contract may law- fully be made, except as otherwise prescribed by the titles on uses and trusts and on transfers. Legislation § 2220. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1172. § 2221. Voluntary trust, how created as to trustor. Sub- ject to the provisions of section eight hundred and fifty-two, a voluntary trust is created, as to the trustor and beneficiary, by any words or acts of the trustor, indicating with reasonable certainty : 1. An intention on the part of the trustor to create a trust; and, 2. The subject, inirpose, and beneficiary of the trust. Creation of involuntary trust: See post, §§ 2223, 2224. Trusts for benefit of third persons: See post, § 2251. Legislation § 2221. Enacted March 21, 1872; based on Field's Drali^ N. Y. Civ. Code, § 1173. Civ. Code — 40 § 2228 CIVIL CODE. 626 § 2222. How created as to trustee. Subject to the provi- sions of section eight hundred and fifty-two, a voluntary trust is created, as to the trustee, by any words or acts of his indi- cating, with reasonable certainty : 1. His acceptance of the trust, or his acknoAvledgment, ma-de upon sufficient consideration, of its existence ; and, 2. The subject, purpose, and beneficiary of the trust. Legislation § 2222. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1174. § 2223. Involuntary trustee, who is. One who wrongfully detains a thing is an involuntary trustee thereof, for the benefit of the owner. Involuntary trustee, who is: See ante, § 2217; post, § 2243. Compensation of involuntary trustee: See post, §§ 2274, 2275. Legislation § 2223. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1175. § 2224. Involuntary trust resulting- from fraud, mistake, etc. One who gains a thing by fraud, accident, mistake, undue in- fluence, the violation of a trust, or other wrongful act, is, un- less 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. Involuntary trustee, who is: See ante, §§ 2217, 2223; post, § 2243. Compensation of involuntary trustee: Post, §§ 2274, 2275. Legislation § 2224. Enacted March 21, 1872; based on Fields Draft, N. Y. Civ. Code, § 1176. AETICLE II.' Obligations of Trustees. § 2228. Trustee's obligation to good faith. § 2229. Trustee not to use property for his own profit. § 2230. Certain transactions forbidden. § 2231. Trustee's influence not to be used for his advantage. § 2232. Trustee not to assume a trust adverse to interest of beneficiary. § 2233. To disclose adverse interest. § 2234. Trustee guilty of fraud, when. § 2235. Presumption against trustees. § 2236. Trustee mingling trust property with his own. § 2237. Measure of liability for breach of trust. § 2238. Same. § 2239. Co-trustees, how far liable for each other. §2228. Trustee's oblig-ation to good faith. In all matters connected Avith his trust, a trustee is bound to act in the high- est good faith toAvard his beneficiary, and may not obtain any advantage therein over the latter by the slightest misrepre- sentation, concealment, threat, or adverse pressure of any kind. Legislation § 2228. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1177. 627 OBLIGATIONS OP TRUSTEES. § 2232 § 2229. Trustee not to use property for his own profit. A trustee may not use or deal with the trust property for his own profit, or for any other purpose unconnected with the trust, in any manner. Purchaser from trustee charged with the trust when: Post, § 2243. Presumption of undue influence on transactions between the trustee and beneficiary: Post, § 2235. Violations of duties by trustee are fraudulent: Post, § 2234. Legislation § 2229. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 117S. § 2230. Certain transactions forbidden. Neither a trustee nor any of his agents may take part in any transaction con- cerning the trust in which he or any one for whom he acts as agent has an interest, present or contingent, adverse to that of his beneficiary, except as follows : 1. When the beneficiary, having capacity to contract, with a full knowledge of the motives of the trustee, and of all other facts concerning the transaction which might affect his own decision, and without the use of any infiuence on the part of the trustee, permits him to do so ; 2. When the beneficiary not having capacity to contract, the proper court, upon the like information of the facts, grants the like permission ; or, 3. When some of the beneficiaries having capacity to con- tract, and some not having it, the former grant permission for themselves, and the proper court for the latter, in the manner above prescribed. Duty to inform beneficiary: Post, § 2233. Undertaking inconsistent trust: Post, § 2232. Legislation § 2230. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1179. § 2231. Trustee's influence not to be used for his advantage. A trustee may not use the influence which his position gives him to obtain any advantage from his beneficiary. Legislation § 2231. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1180. § 2232. Trustee not to assume a trust adverse to interest of beneficiary. 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. Compare ante, § 2230. Trustee's duty to disclose adverse interest: Compare with § 2233, post. Removal of trustee: Post, §§ 2282, 2283. Legislation § 2232. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1181. § 2237 CIVIL CODE. 628 § 2233. To disclose adverse interest. If a trustee acquires any interest, or becomes charged with any duty, adverse to the interest of his beneficiary in the subject of the trust, he must immediately inform the latter thereof, and may be at once removed. Legislation § 2233. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1182. § 2234. Trustee guilty of fraud, Vi^hen. Every violation of the provisions of the preceding sections of this article is a fraud against the beneficiary of a trust. Legislation § 2234. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1183. § 2235. Presumption against trustees. All transactions be- tween a trustee and his beneficiary during the existence of the trust, or while the influence acquired by the trustee remains, by which he obtains any advantage from his beneficiary, are presumed to be entered into by the latter without sufficient consideration, and under undue influence. Legislation § 2235. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1184. § 2236. Trustee mingling trust property with his own. A trustee who willfully and unnecessarily mingles the trust prop- erty with his own, so as to constitute himself in appearance its absolute owner, is liable for its safety in all events, and for the value of its use. [Amendment approved 1905; Stats. 1905, p. 615.] Legislation § 2236. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1185), and then read: "A trustee who will- fully and unnecessarily mingles the trust property with his own, so as to constitute himself in appearance its absolute owner, is liable for its safety in all events." 2. Amendment by Stats. 1901, p. 415; uucoustitutioual. See note, § 4, ante. 3. Amended by Stats. 1905, p. 615. § 2237. Measure of liability for breach of trust. A trustee who uses or disposes of the trust property, contrary to section two thousand two hundred and twenty-nine, may, at the option of the beneficiary, be required to account for all profits so made, or to pay the value of its use, and, if he has disposed thereof, to replace it, with its fruits, or to account for its proceeds, with interest. Liability for non-investment of funds: See post, § 2262. Degree of diligence requisite: Post, § 2259. Legislation § 2237. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1186. 629 TRUSTS. OBLIGATIONS OF THIRD PERSONS. § 2244 § 2238. Same. A trustee who uses or disposes of the trust property in any manner not authorized by the trust, but in good faith, and with intent to serve the interests of the bene- ficiary, is liable only to make good whatever is lost to the beneficiary by his error. Legislation § 2238. Enacted March 21, 1872; basecT on Field's Draft, N". Y. Civ. Code, § 1187. § 2239. Co-trustees, how far liable for each other. A trus- tee is responsible for the Avrongful acts of a co-trustee to which he consented, or which, by his negligence, he enabled the latter to commit, but for no others. Compare with § 2268, post. Legislation § 2239. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1188. ARTICLE III. Obligations of Third Persons. . § 2243. Third persons, when involuntary trustees. § 2244. When third person must see to application of trust property. § 2243. Third persons, when involuntary trustees. 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 con- sideration. Involuntary trustees, who are: See ante, §§ 2217, 2223, 2224. Legislation § 2243. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1189. § 2244. When third person must see to application of trust property. One who actually and in good faith transfers any money or other property to a trustee, as such, is not bound to see to the application thereof, and his rights can in no way be prejudiced by a misapplication thereof by the trustee. Other persons must, at their peril, see to the proper application of money or other property paid or delivered by them. Legislation § 2244. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1190. § 2254 CIVIL CODE. . 630 CHAPTER ir. Trusts for the Benefit of Third Persons. Article I. Nature and Creation of the Trust. §§2250-2254. II. Obligations of Trustees. §§ 2258-2263. m. Powers of Trustees. §§ 2267-2269. IV. Eights of Trustees. §§ 2273-2275. V. Termination of the Trust. §§ 2279-2283. VI. Succession or Appointment of New Trustees. §§ 2287-2289. AETICTLE I. Nature and Creation of the Trust. § 2250.* Who are trustees within scope of this chapter. § 2251. Creation of trust. § 2252. Trustees appointed by court. §2253. Declaration of trust." § 2254. Same. § 2250. Who are trustees within scope of this chapter. The provisions of this chaptov apply only to express 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 includ- ing, however, those of executors, administrators, and guard- ians, as such. Legislation § 2250. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 1191. § 2251. Creation of trust. The mutual consent of a trustor and trustee creates a trust of which the beneficiary may take advantage at any time prior to its rescission. Kevoking trust. Beneficiary's consent necessary: Post, § 2280. Promise for benefit of third person: See ante, § 1559. Legislation § 2251. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code. § 1192. § 2252. Trustees appointed by court. AVhen a trustee is appointed ])y a court or public of^cer, as such, such court or officer is the trustor, within the meaning of the last section. Legislation § 2252. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1193. § 2253. Declaration of trust. The nature, exteitt, and object of a trust are expressed in the declaration of trust. Legislation § 2253. Enacted March 21. 1872; "based on Field's Draft, N. Y. Civ. Code, § 1194. § 2254. Same. All declarations of a trustor to his trustees, in relation to the trust, before its acceptance by the trustees, or any of them, are to be deemed part of the declaration of the trust, except that when a declaration of trust is made in writ- 631 OBLIGATIONS OF TRUSTEES. § 2261 ing, all previous declarations by the same trustor are merged therein. Legislation § 2254. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1195. ARTICLE n. Obligations of Trustees. § 2258. Trustees must obey declaration of trust. § 2259. Degree of care and diligence in execution of trust. § 2260. Duty of trustee as to appointment of successor. § 2261. Investment of money by trustee. § 2262. Interest, simple or compound, on omission to invest trust moneys. § 2263. Purchase by trustee of claims against trust fund. § 2258. Trustees must obey declaration of trust. A trustee must fulfill the purpose of the trust, as declared at its creation, and must follow all the directions of the trustor given at that time, except as modified by the consent of all parties inter- ested, in the same manner, and to the same extent, as an employee. Trustee, must follow declaration of trust: Compare with duty of em- ployee, § 1981, ante. Authority of trustee, generally: See post, § 2267. Legislation § 2258. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1196. § 2259. Degree of care and diligence in execution of trust. A trustee, whether he receives any compensation or not, must use at least ordinary care and diligence in the execution of his trust. Obligations of trustees: See, generally, ante, §§ 2228 et seq. Legislation § 2259. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1197. § 2260. Duty of trustee as to appointment of successor. If a trustee procures or assents to his discharge from his office, before his trust is fully executed, he must use at least ordinary care and diligence to secure the appointment of a trustworthy successor before accepting his own final discharge. Succession or appointment of new trustees: See post, §§ 2287 et seq. Legislation § 2260. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1198. § 2261. Investment of money by trustee. A trustee must invest money I'oceived l)y him under the trust, as fast as he collects a sufficient amount, in such manner as to afford rea- sonable security and interest for the same. Legislation § 2261. Enacted March 21, 1872; based on Field's Draft, N. Y-. Civ. Code, § 1199. § 2269 CIVIL CODE. 632 § 2262. Interest, simple or compound, on omission to invest trust moneys. If a trustee omits to invest the trust moneys according to the last section, he must pay simple interest thereon, if such omission is negligent merely, and compound interest if it is willful. Trustee's liability for interest: Compare with § 2237, ante. Legislation § 2262. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1200. § 2263. Purchase by trustee of claims against trust fund. A trustee cannot enforce any claim against the trust property which he purchases after or in contemplation of his appoint- ment as trustee ; but he may be allowed, by any competent court, to charge to the trust property what he has in good faith paid for the claim, upon discharging the same. Purchasing debts against the trust estate prohibited: See ante, § 2230. Legislation § 2263. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1201. ARTICLE III. Powers of Trustees. § 2267. Trustee's powers as agent. § 2268. All must act. § 2269. Discretionary powers. §2267. Trustee's pov^ers as agent. A trustee is a general agent for the trust property. His authority is such as is con- ferred upon him by the declaration of trust and by this chapter, and none other. His acts, within the scope of his authority, bind the trust property to the same extent as the acts of an agent bind his principal. Powers to two or more trustees: See post, § 2268, and ante, § 860. Agent's acts binding principal: See post, §§ 2330-2339. For what purposes trusts may be created: See ante, §§"857, 2220. Legislation § 2267. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1202. § 2268. All must act. "Where there are several co-trustees, all must unite in any act to bind the trust property, unless the declaration of trust otherwise provides^. Suirvival of trust: See post, § 228S. Liability for acts of co-trustee: See ante, § 2239. Executors, when one or majority may act: See Code Civ. Proc, § 1355. Exercise of powers vested in several: See ante, § SCO. Legislation § 2268. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1203. § 2269. Discretionary powers. A discretionary power con- ferred upon a trustee is presumed not to be left to his arbitrary 633 RIGHTS OF TRUSTEES. § 2275 discretion, but may be controlled by the proper court if not reasonably exercised, unless an absolute discretion is clearly conferred by the declaration of trust. Legislation § 2269. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1204. AETICLE IV. Rights of Trustees. § 2273. Indemnification of trustee. § 2274. Compensation of trustee. § 2275. Involuntary trustee. § 2273. Indemnification of trustee. A trustee is entitled to the repayment, out of the trust property, of all expenses actu- ally and properly incurred by him in the performance of his trust. He is entitled to the repayment of even unlaAvful ex- penditures, if they were productive of actual benefit to the estate. Reimbursement on purchase of claims against estate: See ante, § 2263. Legislation.§ 2273. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1205. § 2274. Compensation of trustee. Except as provided in section seventeen hundred of the Code of Civil Procedure, when a declaration of trust is silent upon the subject of com- pensation 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 compensation, but does not specify the rate or amount, he is entitled to such compensation as may be reasonable under the circumstances. If there are two or more trustees the compensation shall be apportioned among the trustees according to the services rendered by them respectively. [Amendment approved 1909 ; Stats. 1909, p. 252.] Compensation of executors; See Code Civ. Proc, § 1618. Involuntary trustee entitled to no compensation when: See ante, § 2275. Legislation §2274. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1206), and then read: "When a declaration of trust is silent upon the subject of compensation, the trustee is en- titled 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 he directs that he shall be allowed a compensation, but does not specify the rate or amount, he is entitled to such com- pensation as may be reasonable under the circumstances." 2. Amended by Stats. 1889, p. 334, adding the exception at the be- ginning of the section. 3. Amended by Stats. 1909, p. 252, adding the final sentence. § 2275, Involuntary trustee. An involuntary trustee, who becomes such through his own fault, has none of the rights mentioned in this article. § 2282 CIVIL CODE. 634 Involuntary trustee, defined: Ante, §§ 2217, 2223, 2224. Legislation § 2275. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1207. AETICLE V. Termination of the Trust. § 2279. Trust, how extinguished. § 2280. Not revocable. § 2281. Trustee's office, how vacated. § 2282. Trustee, how discharged. § 2283. Eemoval by superior court. § 2279. Trust, how extinguished. A trust is extinguished by the entire fulfillment of its object, or by such object be- coming impossible or unlawful. Extinguishment of trust: See ante, § 871. Legislation § 2279. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1208. § 2280. Not revocable. A trust cannot be revoked by the trustor after its acceptance, actual or presumed, by the trustee and beneficiaries, except by the consent of all the beneficiaries, unless the declaration of trust reserves a power of revocation to the trustor, and in that case the poAver must be strictly pur- sued. Legislation § 2280. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 1209. §2281. Trustee's office, how vacated. The office of a trus- tee is vacated : 1. By his death ; or, 2. By his discharge. Legislation § 2281. Enacted March 21. 1872; based on Field's Draft, >r. Y. Civ. Code. § 1210. § 2282. Trustee, how discharged. A trustee can be dis- charged from his tru.st only as follows : 1. By the extinction of the trust ; 2. By the completion of his duties under the trust ; 3. By such means as may be prescribed by the declaration of trust ; 4. By the consent of the beneficiary, if he have capacity to contract ; 5. By the judgment of a competent tribunal, in a direct pro- ceeding for that purpose, that he is of unsound mind ; or,* 6. By the superior court. [Amendment approved 1SS3 : Stats. 1883, p. 3.] Legislation § 2282. 1. Enacted March 21, 1872 (based on Field's Draft, X. Y. Civ. Code, § 1211), then having, (1) in subd. 4, "had capa- 635 succESSiox or appointment of new trustees. § 2288 city,"' instead of "have capacity," and (2) in subd. 6, "district court" instead of "superior court." 2. Amended by Stats. 1883, p. 3. • § 2283. Removal by superior court. The superior court msLy remove any trustee who has violated or is unfit to exe- cute the trust, or may accept the resignation of a trustee. [Amendment approved 1880; Code Amdts. 1880, p. 8.] Legislation § 2283. 1. Enacted March 21, 1872 (based on Field's Draft, X. Y. Civ. Code, § 1212), and then had the words "district court" instead of "superior court." 2. Amended by Code Amdts. 1880, p. 8. AETICLE VI. Succession or Appointment of New Trustees. § 2287. Appointment of trustee by court to fill vacancy. § 2288. Survivorship between co-trustees. § 2289. Superior court as trustee. § 2287. Appointment of trustee by court to fill vacancy. The superior court must appoint a trustee whenever tliere is a vacancy, and the declaration of trust does not provide a prac- tical method of appointment. In all cases of appointment of any trustee or trustees by any court, if the cestui que trustent, or any one of them are of the age of fourteen years, they, or the one or more of them of the age of fourteen years, may make nomination, to the court, and unless such nominee or nominees are incompetent, upon one or more of the grounds of incom- petency specified in section 13.50 of the Code of Civil Procedure of California, to discharge the duties of trustee, the court must appoint such nominee, or nominees, as trustee, or trustees as the case may be. [Amendment approved 1913; Stats. 1913, p. 39.5.] Legislation § 2287. 1. Enacted March 21, 1872 (based on Field's Draft, X. y. Civ. Code, § 1213), and then had'the words "district court" instead of "superior court." 2. Amended by Code Amdts. 1880, p. 8, to read: "The superior court may appoint a trustee whenever there is a vacancy, and the declara- tion of trust does not provide a practicable method of appointment." 3. Amended by Stats. 1911, p. 79, to read: "The superior court may appoint a trustee whenever there is a vacancy and the declaration of trust does not provide a practicable method of appointment. If the cestui que trust is of the age of fourteen years, he may nominate such trustee, and if such nominee is found competent to discharge the duties of trustee, he is entitled to be appointed such trustee in preference to any other person." 4. Amended by Stats. 1913, p. 395. § 2288. Survivorship between co-trustees. On the death, renunciation, or discharge of one of several co-trustees the trust survives to the others. TMs section consistent with § 860, ante. See, also, ante, § 2268. Survival of guardianship: See ante, § 252. § 2295 CIVIL CODE. 636 Legislation § 2288, Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 1214. § 2289. Superior court as trustee. When a trust exists without any appointed trustee, or Avhere all the trustees re- nounce, die, or are discharged, the superior court of the county where the trust property, or some portion thereof, is situated, must appoint another trustee, and direct the execu- tion of the trust. The court may, in its discretion, appoint the original number, or any less number of trustees. [Amend- ment approved 1880 ; Code Amdts. 1880, p. 8.] Legislation '§ 2289. 1. Enacted March 21, 1872 (based on Field's Draft, K Y. Civ. Code, §1215; Stats. 1867-68, p. 170), and then had the words "district court" instead of "superior court." 2. Amended by Code Amdts. 1880, p. 8. TITLE IX. Agency. Chapter I. Agency in General. Articles I-VI. §§ 2295-2356. II. Particular Agencies. Articles I-IV. §§ 2362-2389. CHAPTER I. Agency in General. Article I. Definition of Agency. §§2295-2300. - II. Authority of Agents. §§ 2304-2326. III. Mutual Obligations of Principals and Third Persons. §§ 2330-2339. IV. Obligations of Agents to Third Persons. §§ 2342-2345. V. Delegation of Agency. §§ 2349-2351. VI. Termination of Agency. §§ 2355, 2356. AETICLE I. Definition of Agency. § 2295. Agency, what. § 2296. Who may appoint, and who may be an agent. § 2297. Agents, general or special. § 2298. Agency, actual or ostensible. § 2299. Actual agency. § 2300. Ostensible agency. § 2295. Agency, what. An agent is one Avho represents another, called the principal, in dealings with third persons. Such representation is called agency. Master and servant: See ante, §§ 2009 et seq. Factors: See ante, §§ 2026 et seq. Agents: See ante, §§ 2019-2022. Legislation § 2295. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 1216. 637 DEFINITION OF AGENCY. AUTHORITY OF AGENTS. § 2300 I § 2296. Who may appoint, and who may be an agent. Any person having capacity to contract may appoint an agent, and any person may be an agent. Legislation § 2296. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1217. § 2297. Agents, g'eneral or special. An agent for a particu- lar act or transaction is called a special agent. All others are general agents. Legislation § 2297. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1218. § 2298. Agency, actual or ostensible. An agency is either actual or ostensible. Actual agent's authority: Post, §§ 231.5, 2316, 2318, 2319. Ostensible agent's authority: Post, §§ 231.5, 2317-2319, 2334. Legislation § 2298. Enacted March 21, 1872; based on Field's Draft, N". Y. Civ. Code, § 1219. § 2299. Actual agency. An agency is actual when the agent is really employed by the principal. Legislation § 2299. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1220. § 2300. Ostensible agency. An agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him. Compare post, § 2317. Legislation § 2300. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1221. ARTICLE n. Authority of Agents. § 2304. What authority may be conferred. § 2305. Agent may perform acts required of principal by code. § 2306. Agent cannot have authority to defraud principal. § 2307. Creation of agency. § 2308. Consideration unnecessarv. § 2309. Form of authoritv. § 2310. Ratification of agent's act. § 2311. Ratifica^on of part of a transaction. § 2312. When ratification void. § 2313. Ratification not to work injury to third persons. § 2314. Rescission of ratification. § 2315. Measure of agent's authority. § 2316. Actual authority, what. § 2317. Ostensible authority, what. § 2318. Agent's authority as to persons having notice of restrictions upon it. § 2319. Agent's necessary authority. § 2320. Agent's power to disobey instructions. § 2321. Authority to be construed by its'specific, rather than by its gen- eral terms. § 2309 CIVIL CODE. 638 § 2322. Exceptions to general authority. § 2323. What included in authority to sell personal property. § 2324. What included in authority to sell real property. § 2325. ■ Authority of general agent to receive price of property. § 2326. Authority of special agent to receive price. § 2304. What authority may be conferred. An agent may be authorized to do any acts which his principal might do, ex- cept those to which the latter is bound to give his personal attention. Delegation of authority by agent: Post, §§ 2349-2351. Legislation § 2304. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 1222. § 2305. Agent may perform acts required of principal by code. 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. Legislation § 2305. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 1223. § 2306. Agent cannot have authority to defraud principal. An agent can never have authority, either actual or ostensible, to do an act which is, and is known or suspected by the person with whom he deals, to be a fraud upon the principal. Legislation § 2306. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1224. § 2307. Creation of agency. An agency may be created, and an authority may be conferred, by a precedent authoriza- tion or a subsequent ratification. Legislation § 2307. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 1225. § 2308. Consideration unnecessary. A consideration is not necessary to make an authority, whether precedent or subse- quent, binding upon the principal. Legislation § 2308. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 1226. , § 2309. Form of authority. An oral authorization is suffi- cient for any purpose, except that an authority to enter into a contract required by law to be in writing can only be given by an instrument in writing. Statute of frauds: Ante, § 1624. Power of attorney to execute mortgage: See post, § 2933. Legislation § 2309. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 1227. 639 AUTHORITY OF AGENTS. § 2316 §2310. Ratification of agent's act. A ratification can be .made only in the manner that Avould have been necessary to confer an original authority for the act ratified, or where an oral authorization would suffice, by accepting or retaining the benefit of the act, Avith notice thereof. Ratification is not binding, and may be rescinded, if made without full knowledge of the facts: See post, § 2314. Ratification of part: See post, § 2311. Legislation § 2310. Enacted March 21, 1872; based on Field's Draft, N". Y. Civ. Code, § 1228. § 2311. Ratification of part of a transaction. Ratification of part of an indivisible transaction is a ratification of the whole. Legislation § 2311. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1229. § 2312. When ratification void. A ratification is not valid unless, at the time of ratifying the act done, the principal has poAver to confer authority for such an act. Legislation § 2312. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1230. § 2313. Ratification not to work injury to third persons. No unauthorized act can be made valid, retroactively, to the prejudice of third persons, without their consent. Legislation § 2313. Enacted March 21, 1872; based on Field's Draft, K Y. Civ. Code, § 1231. § 2314. Rescission of ratification. A ratification may be rescinded when made without such consent as is required in a contract, or with an imperfect knowledge of the material facts of the transaction ratified, but not otherwise. Legislation § 2314. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1232. §2315. Measure of agent's authority. An agent has such authority as the principal, actually or ostensibly, confers upon him. Ostensible agency: See post, §§ 2317-2319, 2334; ante, § 2300. Actual agent, defined: Ante, § 2299. Legislation § 2315. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1233. § 2316. Actual authority, what. Actual authority is such as a principal intentionally confers upon the agent, or inten- tionally, or by want of ordinary care, allows the agent to be- lieve himself to possess. Legislation § 2316. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1234. § 2322 CIVIL CODE. 640 § 2317. Ostensible authority, what. Ostensible authority is such as a principal, intentionally or by want of ordinary care, causes or alloAvs a third person to believe the agent to possess. Ostensible agent, defined: Ante, § 2300. Estoppel from a subsequent ratification: See ante, §§ 2307, 2310, 2312-2314. Legislation § 2317. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 1235. § 2318. Agent's authority as to persons having notice of restrictions upon it. Every agent has actually such authority as is defined by this title, unless specially deprived thereof by his principal, and has even then such authority ostensibly, except as to persons who have actual or constructive notice of the restriction upon his authority. Legislation § 2318. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code. § 1236. §2319. Agent's necessary authority. An agent has au- thority : 1. To do everything necessary or proper and usual, in the ordinary course of business, for effecting the purpose of his agency ; and, 2. To make a representation respecting any matter of fact, not including the terms of his authority, but upon which his right to use his authority depends, and the truth of which can- not be determined by the use of reasonable diligence on the part of the perso)i to whom the representation is made. Legislation § 2319. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1237. §2320. Agent's power to disobey instructions. An agent has power to disoliey instructions in dealing with the subject of the agency, in cases where it is clearly for the interest of his principal that he should do so, and there is not time to communicate with the principal. Legislation § 2320. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code. § 1238. § 2321. Authority to be construed by its specific, rather than by its general terms. When an authority is given partly in general and partly in specific terms, the general authority gives no higher powers than those specifically mentioned. Legislation § 2321. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1239. § 2322. Exceptions to general authority. An authority ex- pressed in general terms, however l)road, does not authorize an agent : 641 AUTHORITY OB^ AGENTS. § 2326 1. To act in his own name, unless it is the usual course of business to do so ; 2. To define the scope of his agency ; or, 3. To do any act which a trustee is forbidden to do by article tAvo, chapter one, of the last title. "Article two, chapter one, of the last title": Ante, §§ 2228-2239. Defining scope of agency: See ante, § 2319, subd. 2. Obligation of trustees: Ante, §§ 2228-2239. Legislation § 2322. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1240. § 2323. What included in authority to sell personal prop- erty. An authority to sell personal property includes au- thority to warrant the title of the principal, and the quality and quantity of the property. Auctioneers, warranty by: See post, § 2362, subd. 3. Legislation § 2323. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1241. § 2324. What included in authority to sell real property. An authority to sell and convey real property includes au- thority to give the usual covenants of warranty. Legislation § 2324. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1242. § 2325. Authority of general agent to receive price of prop- erty; A general agent to sell, who is intrusted by the princi- pal with the possession of the thing sold, has authority to receive the price. Agent to collect: Ante, § 2021. Legislation § 2325. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1243. § 2326. Authority of special agent to receive price. A special agent to sell has authority to receive the price on delivery of the thing sold, but not afterwards. Legislation § 2326. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1244. Civ. Code — 4X § 2334 ' CIVIL CODE. 642 AETICLE III. Mutual Obligations of Principals and Third Persons. § 2330. Principal, how affected by acts of agent within the scope of his authority. § 2331. Principal, when bound by incomplete execution of authority. § 2332. Notice to agent, when notice to principal. § 2333. Obligation of principal when agent exceeds his authority. § 2334. For acts done under a merely ostensible authority. § 2335. When exclusive credit is given to agent. § 2336. Eights of person who deals with agent without knowledge of agency. § 2337. Instrument intended to bind principal does bind him. § 2538. Principal's responsibility for agent's negligence or omission. §2339. Principal's responsibility for wrongs willfully committed by the agent. § 2330. Principal, how affected by acts of agent within the scope of his authority. An agent represents his principal for all purposes within the scope of his actual or ostensible au- thority, and all the rights and liabilities which would accrue to the agent from transactions within such limit, if they had been entered into on his own account, accrue to the principal. Legislation § 2330. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1245. § 2331. Principal, when bound by incomplete execution of authority. A principal is bound by an incomplete execution of an authority, when it is consistent with the Avhole purpose and scope thereof, but not otherwise. Legislation § 2331. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1246. § 2332. Notice to agent, when notice to principal. As against a principal, both principal and agent are deemed to have notice of whatever either has notice of, and ought, in good faith and the exercise of ordinary care and diligence, to communicate to the other. Legislation § 2332. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 1247. § 2333. Obligation of principal when agent exceeds his authority. When an agent exceeds his authority, his principal is bound by his authorized acts so far onlj' as they can be plainly separated from those Avhich are unauthorized. Legislation § 2333. Enacted March 21, 1872; based on Field's Draft, X. Y. Civ. Code. § 1248. § 2334. For acts done under a merely ostensible authority. A principal is bound by acts of his agent, under a merely ostensible authority, to those persons only who have in good faith, and without Avant of ordinary care, incurred a liability 643 OBLIGATIONS BETWEEN PRINCIPALS AND THIRD PERSONS. § 2339 or parted with value, upon the faith thereof. [Amendment approved 1905; Stats. 1905, p. 616.] Ostensible authority: See ante, §§ 2317-2319. Legislation § 2331. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1249. 2. Amendment by Stats. 1901, p. 415; unconstitutional. See note, § 4, ante. 3. Amended by Stats. 1905, p. 616, substituting "want of ordinary care" for "ordinary negligence." § 2335. When exclusive credit is given to agent. If ex- clusive credit is given to an agent by the person dealing with him, his principal is exonerated by payment or other satis- faction made by him to his agent in good faith, before receiv- ing notice of the creditor's election to hold him responsible. Legislation § 2335. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1250. § 2336. Rights of person who deals with agent without knowledge of agency. One who deals witli 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. Legislation § 2336. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1251. § 2337. Instrument intended to bind principal does bind him. An instrument within the scope of his authority by which an agent intends to bind his principal, does bind him if such intent is plainly inferable from the instrument itself. Legislation § 2337. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1252. §2338. Principal's responsibility for agent's negligence or omission. Unless required by or under the authority of law to employ that particular agent, a principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts com- mitted b}' such agent in and as a part of the transaction of such business, and for his willful omission to fulfill the obliga- tions of the principal. Responsibility for negligence of pilot: See post, § 2384. Legislation § 2338. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1253. § 2339. Principal's responsibility for wrongs willfully com- mitted by the agent. A principal is responsible for no other wrongs committed by his agent than those mentioned in the last section, unless he has authorized or ratified them, even § 2345 CIVIL CODE. 644 though they are committed while the agent is engaged in his service. Legislation § 2339. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 12.54. AETICLE IV. Obligations of Agents to Third Persons. § 2342. Warranty of authority. § 2343. Agent's responsibility to third persons. § 2344. Obligation of agent to surrender property to third person. § 234.5. Code provisions governing. § 2342. Warranty of authority. One who assumes to act as an agent thereby warrants, to all who deal with him in that capacity, that he has the authority which he assumes. Damages for breach of warrant of authority: Post, § 3318. Legislation § 2342. Enacted March 21, 1872; based on Field's Draft, X. Y. Civ. Code. § 1255. § 2343. Agent 's responsibility to third persons. 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, in any of the following cases, and in no others : 1. When, with his consent, credit is given to him personally in a transaction; 2. When he enters into a written contract in the name of his principal, Avithout believing, in good faith, that he has au- thority to do so ; or, 3. When his acts are wrongful in their nature. Master of ship personally liable: Post, § 2382. Legislation § 2343. Enacted March 21. 1872; based on Field's Draft, X. Y. Civ. Code, § 1256. § 2344. Obligation of agent to surrender property to third person. If an agent receives anything for the benefit of his principal, to the possession of Avhich another person is entitled, he must, on demand, surrender it to such person, or so much of it as he has under his control at the time of demand, on being indemnified for any advance Avhich he has made to his prin- cipal, in good faith, on account of the same ; and is responsible therefor, if, after notice from the owner, he delivers it to his principal. Compare with sections on deposit, ante, §§ 1822, 1825, 1826. Legislation § 2344. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 1257. § 2345. Code provisions governing. The provisions of this article are subject to the provisions of part one, division first, of this code. Part one, division first: See ante, §§25 et seq. 645 DELEGATION OF AGENCY. TERMINATION OF AGENCY, § 2355 Legislation § 2345. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1258. ARTICLE V. Delegation of Agency. § 2349. Agent's delegation of his powers. § 2350. Agent's unauthorized employment of subagent. § 2351. Subagent rightfully appointed, represents principal. § 2349. Agent's delegation of his powers. An agent, unless specially forbidden by his principal to do so, can delegate his powers to another person in any of the following cases, and in no. others : 1. When the act to be done is purely mechanical; 2. When it is such as the agent cannot himself, and the sub- agent can lawfully perform ; 3. W^hen it is the usage of the place to delegate such powers; or, 4. When such delegation is specially authorized by the prin- cipal. Legislation § 2349. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1259. §2350. Agent's unauthorized employment of subagent. If an agent employs a subagent without authority, the former is a principal and the latter his agent, and the principal of the former has no connection with the latter. Responsibility of subagent: See ante, § 2022. Legislation § 2350. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1260. § 2351. Subagent rightfully appointed, represents principal. A subagent, lawfully appointed, represents the principal in like manner with the original agent; and the original agent is not responsible to third persons for the acts of the sub- agent. Legislation § 2351. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1261. ARTICLE VI. Termination of Agency. • § 2355, Termination of agency. § 2356. Same. § 2355. Termination of agency. An agency is terminated, as to every person having notice thereof, by : 1. The expiration of its term ; 2. The extinction of its subject; 3. The death of the agent ; 4. His renunciation of the agency ; or, 5. The incapacity of the agency [agent] to act as such. § 2363 CIVIL CODE. 646 Legislation § 2355. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1262. j5 235G. Same. I'nlcss tlie power of an agent is coupled with an interest in the subject of the agency, it is terminated, as to every person having notice thereof, by : 1. Its revocation b}- the principal ; 2. His death ; or, 3. His incapacity to contract. Legislation § 2356. Enacted Marcli 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1263. CHAPTER II. Particular Agencies. Article I. Auctioneers. §§2362,2363. n. Factors. §§ 2367-2369. III. SMp-masters and Pilots. §§ 2373-2385. rV. Ships' Managers. §§2388,2389. AETICLE I. Auctioneers. § 2362. Auctioneer's authority from the seller. § 2363. Auctioneer's authority from the bidder. § 2362. Auctioneer 's authority from the seller. An auc- tioneer, in the absence of special authorization or usage to the contrary, has authority from the seller, only as follows : 1. To sell by public auction to the highest bidder ; 2. To sell for cash only, except such articles as are usually sold on credit at auction ; 3. To warrant, in like manner ^vith other agents to sell, ac- cording to section two thousand three hundred and twenty- three ; 4. To prescribe reasonable rules and terms of sale ; 5. To deliver the thing sold, upon payment of the price ; 6. To collect the price ; and, 7. To do whatever else is necessary, or proper and usual, in the ordinary course of business, for effecting these purposes. Authority of auctioneer: See Pol. Code, §§ 3284 et seq. Legislation § 2362. Enacted March 21, 1872; based on Field's f)raft, N. Y. Civ. Code, § 1264. §2363. Auctioneer's authority from the bidder. An auc- tioneer has authority from a bidder at the auction, as well as from the seller, to bind both by a memorandum of the con- tract, as prescribed in the title on sale. Concerning auctioneers: Pol. Code, §§ 3284-3324. Entries by auctioneer: See ante, §1798; and see generally the chap- ter on "Sale by Auction," ante, §§ 1792-1798. 647 FACTORS. SHIP-MASTERS AND PILOTS. § 2369 Legislation § 2363. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1265. AETICLE II. Factors. § 2367. Factor, what. § 2368. Actual authority of factor. § 2369. Ostensible authority. § 2367. Factor, what. A factor is an agent, as defined by section two thousand and twenty -six. Legislation § 2367, Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1266. § 2368. Actual authority of factor. In addition to the au- thority of agents in general, a factor has actual authority from his principal, unless specially restricted : 1. To insure property consigned to him uninsured; 2. To sell, on credit, anything intrusted to him for sale, ex- cept such things as it is 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, but not to any jDerson in an independent employment. Sale on credit by factor: See ante, § 2028. Legislation § 2368. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1267. § 2369. Ostensible authority. A factor has ostensible au- thority to deal with the property of his principal as his own, in transactions with persons not having notice of the actual ownership. Legislation § 2369. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1268. AETICLE III. ■ Ship-masters and Pilots. § 2373. Authority of ship-master on behalf of ship-owner. § 2374. Authority to borrow. § 2375. Authority on behalf of owners of cargo. § 2376. Power to make contracts. § 2377. Power to hypothecate. § 2378. Master's power to sell ship. § 2379. Master's power to sell cargo. § 2380. Authority to ransom ship. § 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. § 2385. Obligations of ship-owner to owner of cargo sold. Note. This article is chiefly confined to defining the authority of shipmasters. Their duties will be found ante, §§ 2034-2044. § 2377 CIVIL CODE. 648 § 2373. Authority of ship-master on behalf of ship-owner. The master of a ship is a general agent for its owner in all matters concerning the same. Legislation § 2373. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, §1269. § 2374. Authority to borrow. The master of a ship has au- thority to borrow money on the credit of its owner, if it is necessary to enable him to complete the voyage, and if neither the owner nor his proper agent for such matters can be con- sulted without injurious delay. Legislation § 2374. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code. § 1270. § 2375. Authority on behalf of owners of cargo. The master of a ship, during a voyage, is a general agent for each of the owners of the cargo, and has authority to do whatever they might do for the preservation of their respective inter- ests, but he cannot sell or hypothecate the cargo, except in the cases mentioned in this article. [Amendment approved 1874; Code Amdts. 1873-74, p. 251.] Legislation § 2375. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1271), and then read: "The master of a ship, during a voyage, is a general agent for each of the owners of the cargo, and has authority to do whatever they might do for the preservation of their respective interests, except to sell or hypothecate the same." 2. Amended by Code Amdts. 1873-74, p. 251. § 2376. Power to make contracts. The master of a ship may procure all its necessary repairs and supplies, may engage cargo and passengers 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. Legislation § 2376. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1272. § 2377. Power to hypothecate. The master of a ship may hypothecate the ship, freightage, and cargo, and sell part of the cargo, in the cases prescribed by the chapters on bottomry and respondentia, and in no others, except that the master may also sell the cargo, or any part of it, short of the port of desti- nation, if found to be of such perishable nature, or in sucli dam- aged condition that if left on board or reshipped it Avould be entirely lost, or would seriously endanger the interests of its owners. [Amendment approved 1874; Code Amdts. 1873-74, p. 252.] Bottomry: See post, §§ 3017 et seq. Legislation § 2377. 1. Enacted March 21, 1872 (based on Field's Draft, X. Y. Civ. Code, § 1273), and then read: "The master of a ship 649 SHIP-MASTERS AND PILOTS. § 2383 may hypothecate the ship, freightage, and cargo in the cases prescribed by the chapters on bottomry and respondentia, and in no others." 2. Amended by Code Ani'dts. 1873-74, p. 252. § 2378. Master's power to sell ship. When a ship, whether foreign or domestif, is soriously injured, or the voyage is otherwise broken up, beyond the possibility of pursuing it, the master, in ease of necessity, may sell the ship without in- structions from the owners, unless by the earliest use of ordi- nary means of communication he can inform the owners, and await their instructions. Legislation § 2378. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1274. § 2379. Master's power to sell carg-o. The master of a ship may sell the cargo, if the voyage is broken up beyond the pos- sibility of pursuing it, and no other ship can be obtained to carry it to its destination, and the sale is otherwise absolutely necessary. Master's authority when voyage broken up: Compare post, § 2707. Legislation § 2379. Enacted March 21. 1872; based on Field's Draft, X. Y. Civ. Code, § 1275. §2380. Authority to ransom ship. The master of a ship, in case of its captui-e, may engage to pay a ransom for it, in money or in part of the cargo, and his engagement will bind the ship, freightage, and cargo. Legislation § 2380. Enacted March 21, 1872; based on Field's Draft, X. Y. Civ. Code. § 127C. §2381. Abandonment terminates master's power. The power of the master of a ship to bind its owner, or the owners of the cargo, ceases upon the abandonment of the ship and freightage to insurers. Legislation § 2381. Enacted March 21. 1872; based on Fiehl's Draft, X. Y. Civ. Code, § 1277. § 2382. Personal liability for contracts concerning' the ship. Unless otherwise expressly agreed, or unless the contracting parties give exclusive credit to the owner, the master of a ship is personally liable upon his contracts relative thereto, even when the owner is also liable. Personal liability of agent: See ante, § 2:^4.3. Captain importing convict, guilty of a misdemeanor: See Pen. Code, § 173. Legislation § 2382. Enacted March 21. 1872; based on Field's Draft, X. Y. Civ. Code, § 1278. § 2383. Liability for acts of persons employed upon the ship. The master of a ship is liable to third persons for the acts or § 2389 CIVIL CODE. 650 negligence of persons employed in its navigation, whether ap- pointed by him or not, to the same extent as the owner of the ship. Ship-master's liability for negligence: See ante, § 2043; post, § 2384. Legislation § 2383. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code. § 1279. § 2384. Responsibility for negligence of pilot. The owner or master of a ship is not responsible for the negligence of a pilot whom he is bound by law to employ ; but if he is allowed an option between pilots, some of whom are competent, or is required only to pay compensation to a pilot, whether he em- ploys him or not, he is so responsible to third persons. Liability of principal for acts of agent: See ante, § 2338. Ship-master's liability for negligence; See ante, §§ 2043, 2383. Legislation § 2384. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1280. § 2385. Obligations of ship-ov^^ner to owner of carg-o sold. The owner of a ship is bound to pay to the owner of her cargo the market value at the time of arrival of the ship at the port of her destination, of that portion of her cargo which has been sold to enable the master to pay the necessary repairs and supplies of the ship. Legislation § 2385. Added by Code Amdts. 1873-74, p. 252. ARTICLE IV. Ships' Managers. § 2388. What powers manager has. § 2389. What powers he has not. § 2388. What powers manager has. A ship 's manager has poAver to make contracts requisite 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. Ships' managers: See ante, §§ 2070-2072. Legislation § 2388. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1281. § 2389. What powers he has not. Without special author- ity a ship's manager cannot borrow money or give up the lien for freightage, or purchase a cargo, or bind the owners of the ship to an insurance. Legislation § 2389. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 1282. 651 WHAT CONSTITUTES PARTNERSHIP. FORMATION OF. § 2397 TITLE X. Partnership. Chapter I. Partnership in General. Articles I-IV. §§ 2395-2418. li. General Partnership. Articles I-VII. §§ 2424-2472. III. Special Partnership. Articles I-FV. §§ 2477-2510. IV. Mining Partnership. §§ 2511-2520. CHAPTER I. Partnership in General. Article I. What Constitutes a Partnership. §§2395-2397. II. Partnership Property. §§2401-2406. III. Mutual Obligation of Partners. §§2410-2413. IV. Kenunciation of Partnership. §§ 2417, 2418. AETICLE I. What Constitutes, a Partnership. § 2395. Partnership, what. § 2396. Ship-owners. § 2397. Formation of partnership. § 2395. Partnership, what. Partnership is the association of two or more persons, for the purpose of carrying on busi- ness together, and dividing its profits between them. Dividing profits implies division of losses: Post, § 2404. Legislation § 2395. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1283. § 2396. Ship-owners. Part-OAvners of a ship do not, by simply using it in a joint enterprise, become partners as to the ship. Legislation § 2396. Enacted March 21, 1872; based on Field's Draft, K Y. Civ. Code, § 1284. § 2397. Formation of partnership. A partnership can be formed only by the consent of all the parties thereto, and there- fore no new partner can be admitted into a partnership with- out the consent of every existing member thereof. Sale of interest, effect of: See post, § 2516. Legislation § 2397. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1285. § 2405 CIVIL CODE. 652 ARTICLE II. Partnership Property. § 2401. Partnership property, what. § 2402. Partner's interest in partnership property. § 2403. Partner's share in profits and losses. § 2404. When division of losses implied. § 2405. Partner may require application of partnership property to pay- ment of debts. § 2406. What property is partnership property by presumption. § 2401. Partnership property, what. The property of a partnership consists of all that is contributed to the common stock at the formation of the partnership, and all that is sub- sequently acquired thereby. Legislation § 2401. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 1286. § 2402. Partner's interest in partnership property. The in- terest of each member of a partnership extends to every portion of its property. Legislation § 2402. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1287. §2403. Partner's share in profits and losses. In the absence of any agreement on the subject the shares of partners in the profit or loss of the business are equal, and the share of each in the partnership property is the value of his original contribution, increased or diminished by his share of profit or loss. Mining partnerships. Each member shares in the profit and loss proportionately to the interest he holds: Post, § 2513. Legislation § 2403. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1288. § 2404. When division of losses implied. An agreement to divide the profits of a business implies an agreement for a cor- responding division of its losses, unless it is otherwise ex- pressly stipulated. Legislation § 2404. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1289. § 2405. Partner may require application of partnership property to payment of debts. Each member of a partnership may require its property to be applied to the discharge of its debts, and has a lien upon the shares of the other partners for this purpose, and for the payment of the general balance if any due to him. Legislation § 2405. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1290. 653 MUTUAL OBLIGATIONS OF PARTNERS. § 2413 § 2406. What property is partnership property by presump- tion. Property, whether real or personal, acquired with part- nership funds, is pi*esunied to be partnership property. Legislation § 2406. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1291. 2. Amendment by Stats. 1901, p. 415; unconstitutional. See note, § 4, ante. ARTICLE III. Mutual Obligation of Partners. § 2410. Partners trustees for each other. § 2411. Good faith to be observed between them. § 2412. Mutual liability of partners to account. § 2413. No compensation for services to firm. § 2410. Partners trustees for each other. The relations of partners are confidential. They are trustees for each other within the meaning of chapter one of the title on trusts, and their obligations as such trustees are defined by that chapter. "Chapter one of the title on trusts": Ante, §§.2215-2244. Legislation § 2410. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1292. § 2411. Good faith to be observed between them. In all proceedings connected with the formation, conduct, dissolu- tion, and liquidation of a partnership, every partner is bound to act in the highest good faith tow^ard his copartners. He may not obtain any advantage over them in the partnership affairs by the slightest misrepresentation, concealment, threat, or adverse pressure of any kind. In what business partner may not engage: See post, §§ 2436 et seq. Legislation § 2411. Enacted March 21, 1872; bt^sed on Field's Draft, N. Y. Civ. Code, § 1293. § 2412. Mutual liability of partners to account. Each mem- ber of a partnership must account to it for everything that he receives on account thereof, and is entitled to reimbursement therefrom for everything that he properly expends for the benefit thereof, and to be indemnified thereby for all losses and risks which he necessarily incurs on its behalf. Partner's acts bind firm: Post, § 2429. Legislation § 2412. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1294. § 2413. No compensation for services to firm. A partner is not entitled to any compensation for services rendered by him to the partnership. Legislation § 2413. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1295. § 2424 CIVIL CODE. 654 AETICLE IV. Eenunciation of Partnership. § 2417. Eenunciation of future profits exonerates from liability. § 2418. Effect of renunciation. § 2417. Renunciation of future profits exonerates from lia- bility. A partner may exonerate himself from all future liability to a third person, on account of the partnership, by renouncing, in good faith, all participation in its future profits, and giving notice to such third person, and to his own copart- ners, that he has made such renunciation, and that, so far as may be in his power, he dissolves the partnership and does not intend to be liable on account thereof for the future. Dissolution of partnership: See post, §§ 2449 et seq. Legislation § 2417.. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1296. § 2418. Effect of renunciation. After a partner has given notice of his renunciation of the partnership, he cannot claim any of its subsequent profits, and his copartners may proceed to dissolve the partnership. Legislation § 2418. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1297. CHAPTER II. General Partnership. Article I. What is a General Partnership. § 2424. II. Powers and Authoritv of Partners. §§ 2428-2431. III. Mutual Obligations of Partners. §§ 2435-2438. IV. Liability of Partners. §§ 2442-2445. V. Termination of Partnership. §§ 2449-2454. VI. Liquidation. §§ 2458-2462. VII. Of the Use of Fictitious Names. §§ 2466-2472. ARTICLE I. What is a General Partnership. § 2424. General partnership, what. § 2424. General partnership, v/hat. Every partnership that is not formed in accordance with the law concerning special or mining partnerships, and every special partnership, so far only as the general partners are concerned, is a general part- nership. Special partnerships: See post, §§ 2477-2510. Mining partnerships: See post, §§ 2511-2520. Legislation § 2424. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 1298. 655 POWERS AND AUTHORITY OF PARTNERS. § 2431 AETICLE II. Powers and Authority of Partners. § 2428. Power of majority of partners. § 2429. Authority of individual partner. § 2430. What authority partner has not. § 2431. Partner's acts in bad faith, when ineffectual. § 2428. Power of majority of partners. Unless otherwise expressly stipulated, the decision of the majority of the mem- bers of a general partnership binds it in the conduct of its business. Mining partnerships: Post, § 2520, Legislation § 2428. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1299. § 2429. Authority of individual partner. Every general partner is agent for the partnership in the transaction of its business, and has authority to do whatever is necessary to carry on such business in the ordinary manner, and for this purpose may bind his copartners by an agreement in writing. Common liability for losses: See § 2412. Legislation § 2429. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1300. § 2430. What authority partner has not. A partner, as such, has not authority to do any of the following acts, unless his copartners have Avholly abandoned the business to him, or are incapable of acting : 1. To make an assignment of the partnership property or any portion thereof to a creditor, or to a third person in trust for the benefit of a creditor or of all creditors ; 2. To dispose of the good-will of the business ; 3. To dispose of the whole of the partnership property at once, unless it consists entirely of merchandise ; 4. To do any act which Avould 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 preceding section. Legislation § 2430. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1301. §2431. Partner's acts in bad faith, when ineffectual. A partner is not bound by any act of a copartner, in bad faith toward him, though Avithin the scope of the partner's powers, except in favor of persons who have in good faith parted with value in reliance upon such act. Good faith, duty to observe: See ante, § 2411. § 2442 CIVIL CODE. G56 Legislation § 2431. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1302. AKTICLE III. Mutual Obligations of Partners. § 2435. Profits of individual partner. § 2436. In what business partner may not engage. § 2437. In what he may engage. § 3438. Must account to firm for profits. § 2435. Profits of individual partner. All profits made by a general partner, in the course of any business usually carried on by the partnership, belong to the firm. Legislation § 2435. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1303. § 2436. In what business partner may not engage. A gen- eral partner, Avho agrees to give his personal attention to the business of the partnership, may not engage in any business which gives him an interest adverse to that of the partnership, or which prevents him from giving to such business all the attention which would ])e advantageous to it. Accounting by partner: See post, § 2438. Legislation § 2436. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1304. § 2437. In what he may engage. A partner may engage in any separate business, except as otherwise provided by the last tAvo sections. Legislation § 2437. Enacted March 21. 1872; based on FieWs Draft, N. Y. Civ. Code, § 1305. § 2438. Must account to firm for-profits. A general partne'r transacting business contrary to the provisions of this article may be required by any copartner to account to the partner- ship for the profits of such business. Legislation § 2438. Enacted March 21, 1872; based on Field's Draft, X. Y. Civ. Code, § 1306. ARTICLE IV. Liability of Partners. § 2442. Liability of partners to third persons. § 2443. Liability for each other's acts as agents. § 2444. Liability of one held out as partner. § 2445. No one liable as partner unless held out as such. § 2442. Liability of partners to third persons. Every gen- eral partner is liable to third persons for all the obligations of the partnership, jointly with his copartners. Legislation § 2442. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1307. 657 TERMINATION OP PARTNERSHIP. § 2450 §2443. Liability for each other 's acts as agents. The liabil- ity of general partners for each other's acts is defined by the title on agency. Authority of individual partner: See ante, §§ 2429, 2430. "Title on agency": Ante, §§ 2295-2389. Legislation § 2443. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1308. § 2444. Liability of one held out as partner. Any one per- mitting himself to be represented as a partner, general or special, is liable, as such, to third persons to whom such rep- resentation is communicated, and Avho, on the faith thereof, give credit to the partnership. Legislation § 2444. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1309. § 2445. No one liable as partner unless held out as such. No one is liable as a partner who is not such in fact, except as provided in the last section. Legislation § 2445. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1310. ARTICLE V. Termination of Partnership. § 2449. Duration of partnership. § 2450. Total dissolution of partnership. § 2451. Partial dissolution. § 2452. Partner entitled to dissolution. § 2453. Notice of termination. § 2454. Notice by change of name. § 2449. Duration of partnership. If no term is prescribed by agreement for its duration, a general partnership continues until dissolved by a partner or by operation of law. Dissolution of special partnership: See post, § 2509. Legislation § 2449. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1311. § 2450. Total dissolution of partnership. A general part- nership is dissolved as to all the partners : 1. By lapse of the time prescribed by agreement for its dura- tion; 2. By the expressed Avill of any partner, if there is no such agreement ; 3. By the death of a partner ; 4. By the transfer to a person, not a partner, of the interest of any partner in the partnership property ; 5. By war, or the prohibition of commercial intercourse be- tween the country in which one partner resides and that in which another resides; or, 6. By a judgment of dissolution. Oiv. Code — 42 Ik/ § 2454 CIVIL CODE. 658 Partner's power after dissolution of firm: See post, §§ 2458 et seq. Legislation § 2450. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1312. 2. Amendment by Stats. 1901, p. 415; unconstitutional. See note, § 4, ante. § 2451. Partial dissolution. A general partnership may be dissolved, as to himself only, by the expressed Avill of any part- ner, notwithstanding his agreement for its continuance, sub- ject however to liability to his copartners for any damage caused to them thereby, unless the circumstances are such as entitle him to a judgment of dissolution. Legislation § 2451. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 1313. § 2452. Partner entitled to dissolution. A general partner is entitled to a judgment of dissolution : 1. Wlien he, or another partner, becomes legally incapable of contracting; 2. When another partner fails to perform his duties under the agreement of partnership, or is guilty of serious mis- conduct; or, 3. Y/hen the business of the partnership can be carried on only at a permanent loss. Legislation § 2452. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1314. § 2453. Notice of termination. The liability of a general partner for the acts of his copartners continues, even after a dissolution of the copartnership, in favor of persons who have had dealings with and given credit to the partnership during its existence, until they have had personal notice of the dis- solution; and in favor of other persons until such dissolution has been advertised in a newspaper published in every county where the partnership, at the time of its dissolution, had a place of business, if a newspaper is there published, to the extent in either case to which such persons part with value in good faith, and in the belief that such partner is still a mem- ber of the firm. Compare § 2509, post. Legislation § 2453. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1315. § 2454. Notice by change of name. A change of the part- nership name, which plainly indicates the withdraAval of a partner, is sufficient notice of the fact of such withdrawal to all persons to Avhom it is communicated ; but a change in the name, which does not contain such an indication, is not notice of the withdrawal of any partner. 659 LIQUIDATION OP PARTNERSHIP. § 2462 Legislation § 2454. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1316. ARTICLE VI. Iiiquidation. § 2458. Powers of partners after dissolution. § 2459. Who may act in liquidation. § 2460. Who may not act in liquidation. § 2461. Powers of partners in liquidation. § 2462. What partner may do in liquidation. § 2458. Powers of partners after dissolution. After the dissolution of a partnership, the powers and authority of the partners are such only as are prescribed by this article. Death of partner, rights and duties of survivor: See Code Civ. Proc, § 1585. Interest of estate in partnership, sale of: See Code Civ. Proc, § 1524. Legislation § 2458. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1317. § 2459. Who may act in liquidation. Any member of a general partnership may act in liquidation of its affairs, except as provided by the next section. Legislation § 2459. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1318. § 2460. Who may not act in liquidation. If the liquidation of a partnership is committed, by consent of all the partners, to one or more of them, the others have no right to act therein; but their acts are valid in favor of persons parting with value, in good faith, upon credit thereof. Legislation § 2460. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1319. § 2461. Powers of partners in liquidation. A partner au- thorized to act in liquidation may collect, compromise, or re- lease any debts due to the partnership, pay or compromise any claims against it, and dispose of the partnership prop- erty. Legislation § 2461. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1320. 2. Amendment by Stats. 1901, p. 416; unconstitutional. See note, § 4, ante. § 2462. What partner may do in liquidation. A partner au- thorized to act in liquidation, may indorse, in the name of the firm, promissory notes, or other obligations held by the part- nership, for the purpose of collecting the same, but he cannot create any new obligation in its name, or revive a debt against the firm, by an acknoAvledgment, when an action thereon is barred under the provisions of the Code of Civil Procedure. [Amendment approved 1874; Code Amdts. 1873-74, p. 252.] § 2466 CIVIL CODE. 660 Legislation § 2462. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1321), and then read: "A partner authorized to act in liquidation may enter, in the name of the firm, into any obli- gation, by way of satisfaction of a partnership debt, or as a collateral security therefor; but he cannot make, draw, or indorse any other obligation in its name, nor revive a debt against the firm, by any acknowledgment, within the provisions of the Code of Civil Procedure concerning the times of commencing civil actions." 2, Amended by Code Amdts. 1873-74, p. 252. AETICLE VII. Of the Use of Fictitious Names. § 2466. Fictitious names to be registered with county clerk. § 2467. Style of foreign partnership. § 2468. Certificates of partnership, execution, filing, etc. § 2469. New certificates on change of partner. § 2470. Register of firms. § 2471. Certified copies of register, and proof of publication, to be evi- dence. § 2472. Foreign copartnership. Designation of agent. § 2466. Fictitious names to be registered with county clerk. Except as otherwise provided in the next section every per- son transacting business in this state under a fictitious name and every partnership transacting business in this state under a fictitious name, or a designation not shoAving the names of the persons interested as partners in such business, must file with the clerk of the county in which his or its principal place of business is situated, a certificate, stating the name in full and the place of residence of such person and stating the names in full of all the members of such partnership and their places of residence. Such certificate must be published once a Aveek for four successive Aveeks, in a ncAvspaper published in the county, if there be one, and if there be none in such county, then in a ncAvspaper in an adjoining county. [Amendment ap- proved 1911; Stats. 1911, p. 440.] Legislation § 2466. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1322), and then read: "No partnership or person may transact business by a fictitious name, or in the name of a person not interested in such business, except as prescribed in this article." 2. Amended by Code Amdts. 1873-74, p. 253, to read: "Except as otherwise provided in the next section, every partnership transacting business in this state under a fictitious name, or a designation not showing the names of the persons interested as partners in such busi- ness, must file with the clerk of the county in which its principal place of business is situated, a certificate, stating the names in full of all the members of such partnership and their places of residence, 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 count}', then in a newspaper published in an adjoining county." 3. Amended by Stats. 1911, p. 440. 661 PARTNERSHIP. USE OP FICTITIOUS NAMES. § 2468 § 2467. style of foreign partnership. A commercial or banking partnership, estal)lishccl and transacting business in a place without the United States, may, without filing the cer- tificate or making the publication prescribed in the last section, use in this state the partnership name used by it there, al- though it be fictitious, or do not show^ the names of the persons interested as partners in such business. [Amendment ap- proved 1874; Code Amdts. 1873-74, p. 253.] Legislation § 2467. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1323), and then read: "A commercial partner- ship, established and transacting business in a place without the United States, maj^ use in this state the partnership name used by it there, although fictitious." 2. Amended by Code Amdts. 1873-74, p. 253. § 2468. Certificates of partnership, execution, filing-, etc. The certificate filed with the clerk as provided in section 2466 must be signed by the person therein referred to, or by the partners, as the case may be, and acknowledged before some officer, authorized to take the acknowledgment of conveyance of real property. Where a business is hereafter commenced by a person under a fictitious name or a partnership is here- after formed, the certificate must be filed and the publication designated in that section must be made within one month after the commencement of such business, or after the forma- tion of the partnership, or Avithin one month from the time designated in the agreement of its members for the commence- ment of the partnership. Where the business has been here- tofore conducted under a fictitious name or where the partner- ship has been heretofore formed, the certificate must be filed and the publication made within six months after the passage of this act. No person doing business under a fictitious name, or his assignee or assignees, nor any persons doing business as partners contrary to the provisions of this article, or their assignee or assignees, shall maintain any action upon or on ac- count of any contract or contracts made, or transactions had, under such fictitious name, or in their partnership name, m any court of this state until the certificate has been filed and the publication has been made as herein required. [Amendment approved 1911 ; Stats. 1911, p. 441.] Legislation § 2468. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1324), and then read: "The name of a part- nership, which has had business relations with places without the United States, may be continued in use by the persons succeeding to its business, and Ijy their successors, upon compliance with the pro- visions of this article, and with the consent of the persons, if living, whose names are used." 2. Amended- by Code Amdts. 1873-74, p. 253, to read: "The certificate filed with the clerk, as provided iu section twenty-four hundred and § 2470 CIVIL CODE. 662 sixty-six, must be signed by the partners, and acknowledged before some oflScer authorized to take the acknowledgment of conveyances of real property. Where the partnership is hereafter formed, the certifi- cate must be filed, and the publication designated in that section must be made within one month after the formation of the partnership, or within one month from the time designated in the agreement of its members for the commencement of the partnership; where the part- nership has been heretofore formed, the certificate must be filed, and the publication made within six months after the passage of this act. Persons doing business as partners contrary to the provisions of this article, shall not maintain any action upon or on account of any con- tracts made or transactions had in their partnership name, in any court of this state, until they have first filed the certificate and made the publication herein recjuired." 3. Amendment by Stats. 1901, p. 416; unconstitutional. See note, § 4, ante. 4. Amended by Stats. 1911, p. 441. § 2469. New certificates on change of partner. On every change in the members of a partnership transacting business in this state under a fictitious name, or a designation which does not show the names of the persons interested as partners in its business, except in the cases mentioned in section twenty- four hundred and sixty-seven, a new certificate must be filed with the county clerk, and a ncAv publication made as required by this article on the formation of such partnership. [Amendment approved 1874; Code Amdts. 1873-74, p. 254.] Legislation § 2469. 1. Enacted March 21, 1872 (based on Field's -Draft, N. Y. Civ. Code, § 1325), and then read: "On every change of the persons tontinuing the use of a partnership name, under the last section, the person acquiring the right to use it must sign and acknowl- edge, before a proper officer for that purpose, a certificate stating the name of each person dealing under such name, and his place of resi- dence, and must file the same with the clerk, of the county in which their principal place of business is situated; and must publish such cer- tificate, or a statement containing the substance thereof, once in each week for four successive weeks, beginning within one week after his first using such name, in a newspaper printed in the county, or nearest the county (if none is printed in the county), in which such principal place of business is situated." 2. Amended by Code Amdts. 1873-74, p. 254. § 2470. Register of firms. 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 person who does business under a fictitious name, and the fictitious name, and the name of every such partnership, and of each partner there- in. [Amendment approved 1911; Stats. 1911, p. 440.] Legislation § 2470. 1. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 1362. As enacted in 1872 the section read: "Every county clerk must keep a register of the names of firms and persons mentioned in the certificates filed with him, pursuant to the 663 SPECIAL PARTNERSHIP. FORMATION OF. § 2477 last section entering in alphabetical order the name of every such partnership, and of each partner therein." 2. Amended by Code Amdts. 1873-7J:, p. 2.54, substituting the words "this article" for "the last section." 3. Amended by Stats. 1911, p. 440. § 2471. Certified copies of reg-ister, and proof of publica- tion, to be evidence. Copies of the entries of a county clerk, as herein directed, when certified by him, and affidavits of publi- cation, as herein directed, made by the printer, publisher, or chief clerk of a newspaper, are presumptiA^e evidence of the facts therein stated. Legislation § 2471. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 1327. § 2472. Foreign copartnership. Designation of agent. Every copartnership, other than those mentior^d in section two thousand four hundred and sixty-seven of this code, domiciled without this state, and having no regular T)lace of business Avithin this state, must, Avithin forty days from the time it commences to do business therein, file in the office of the secretary of state a designation of some person residing Avithin the state upon whom process issued by authority of or under any laAv of this state, may be serA^ed. A copy of such designation, duly certified by the secretary of state, is sufP ■ cient cAn'dence of such, appointment. Such process may be serA^ed on the person so designated, or, in the event that no such person is designated, then on the secretary of state, and the serAHce is a valid serAdce on such copartnership. Legislation § 2472. Added by Stats. 1909, p. 1065. CHAPTER III. Special Partnership. Article I. Formation of Partnership. §§2477-2485. TT. Powers, Eights, and Duties of the Partners. §§ 2489-2496. in. Liability of Partners. §§2500-2503. IV. Alteration and Dissolution of the Partnership. §§ 2507-2510. AETICLE I. Formation of Partnership. § 2477. Formation of special partnership. § 2478. Of what to consist. § 2479. Certified statement. § 2480. Acknowledged and recorded. False statement. § 2481. Affidavit as to sums contributed. § 2482. No partnership until compliance. § 2483. Certificate to be published. § 2484. Affidavit of publication filed. § 2485. Eenewal of special partnership. § 2477. Formation of special partnership. A special part- nership may be formed by tAvo or more persons, in the manncT- § 2481 CIVIL CODE. 664 and with the effect prescribed in this chapter, for the transac- tion of any business except banking or insurance. Fraud in partnership matters, a misdemeanor: Pen. Code, § 358. Legislation § 2477. Euacted March 21. 1872; based on Stats. 1869-70, p. 123, § 1. § 2478. Of what to consist. A special partnership may con- sist of one or more persons called general partners, and one or more persons called special partners. Legislation § 2478. Enacted March 21, 1872; based on Stats. 1869-70, p. 123, § 2. § 2479. Certified statement. Persons desirous of forming a special partnership must severally sign a certificate, stating: 1. The name under Avhich 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, specifying which are general and which are special partners ; 4. The amount of capital which each special partner has con- tributed to the common stock ; 5. The periods at which such partnership will begin and end. Legislation § 2479. Enacted March 21, 1872; based on Stats. 1869-70, p. 123, § 3. § 2480. Acknow^ledged and recorded. False statement. Certificates under the last section must be acknowledged by all the partners, before some officer authorized to take ac- knoMledgment of deeds, one to be filed in the clerk's office, and the other recorded in the office of the recorder of the county in Avhich the principal place of business of the partnership is situated, in a book to be kept for that purpose, open to public inspection ; and if the partnership has places of business situ- ated in different counties, a copy of the certificate, certified by the recorder in whose office it is recorded, must be filed in the clerk's office, and recorded in like manner in the office of the recorder in every such county. If any false statement is made in any such certificate, all the persons interested in the partnership are liable, as general partners, for all the engage- ments thereof. Legislation § 2480. Enacted March 21, 1872; based on Stats. 1869-70, p. 123, §4. § 2481. Affidavit as to sums contributed. An affidavit of each of the partners, stating that the sums specified in the certificate of the partnership as having been contributed by 665 SPECIAL PARTNERSHIP. FORMATION OF. § 2485 each of the special partners, have been actually and in good faith paid, in the lawful money of the United States, must be filed in the same office with the original certificate. Legislation § 2481. Enacted March 21, 1872; based on Stats. 18G9-70. p. 123, § 5. § 2482. No partnership until compliance. No special part- nership is formed until the provisions of the last five sections are complied with. Legislation § 2482. Enacted March 21, 1872; based on Stats. 1869-70, p. 123, § 6. § 2483. Certificate to be published. The certificate men- tioned in this article, or a statement of its substance, must be published in a newspaper printed in the county where the original certificate is filed, and if no newsq^aper is there printed, then ill a newspaper in the state nearest thereto. Such publi- cation must be made once a week for four successive wrecks, beginning within one week from the time of filing the certi- ficate. In case such publication is not so made, the partner- ship must be deemed general. Legislation § 2483. Enacted March 21, 1872; based on Stats. 1869-70, p. 123, § 7. § 2484. Affidavit of publication filed. An affidavit of the makiiig of the publication mentioned in the preceding section, made by the printer, publisher, or chief clerk of the newspaper in which such publication is made, may be filed with the county recorder with Avhom the original certificate was filed, and is presumptive evidence of the facts therein stated. Legislation § 2484. Enacted March 21, 1872; based on Stats. 1869-70, p. 124, § 8. § 2485. Renewal of special partnership. Every renewal or continuance of a special partnership must be certified, re- corded, verified, and published in the same manner as upon its original formation. Compare with § 2507, post. Legislation § 2485. Enacted March 21, 1872; based on Stats. 1869-70, p. 124, § 9. § 2494 CIVIL CODE. 666 AETICLE II. Powers, Eights, and Duties of the Partners. § 2489. Who to do business. § 2490. Special partners may advise. § 2491. May loan money. Insolvency. § 2492. General partners may sue and be sued. § 2493. Withdrawal of capital. § 2494. Interest and profits. § 2495. Eesult of withdrawing capital. § 2496. Preferential transfer void. § 2489. Who to do business. The general partners only have authority to transact the business of a special partner- ship. Legislation § 2489. 1. Enacted March 21, 1872; based on Stats. 1869- 70, p. 124, § 10. 2. Amendment by Stats. 1901, p. 416; unconstitutional. See note, § 4, ante. § 2490. Special partners may advise, A special partner may at all times investigate the partnership affairs, and advise his partners, or their agents, as to their management. Legislation § 2490, Enacted March 21, 1872; based on Stats. 1869-70, p. 124, § 11. § 2491. May loan money. Insolvency, A special partner may lend money to the partnership, or advance money for it, and take from it security therefor, and as to such loans or ad- vances has the same rights as any other creditor ; but in case of the insolvency of the partnership, all other claims -which he may have against it must be postponed until all other cred- itors are satisfied. Legislation § 2491. Enacted March 21, 1872; based on Stats. 1869-70, p. 124, § 12. § 2492, General partners may sue and be sued. In all matters relating to a special partnership, its general partners may sue and be sued alone, in the same manner as if there were no special partners. Legislation § 2492, Enacted March 21. 1872; based on Stats. 1869-70. p. 124, § 13. § 2493. Withdrawal of capital. No special partner, under any pretense, may -withdraw any part of the capital invested by him in the partnership, during its continuance. Withdrawal of capital: See § 2495, post. Legislation § 2493. Enacted March 21, 1872; based on Stats. 1869-70, p. 124, § 14. § 2494, Interest and profits, A special partner may receive such laAvful interest and such proportion of profits as may be 667 LIABILITY OF SPECIAL PARTNERS. § 2501 agreed upon, if not paid out of the capital invested in the partnership by him, or by some other special partner, and is not bound to refund the same to meet subsequent losses. Legislation § 2494. Enacted March 21, 1872; based on Stats. 1869-70, p. 124, § 15. § 2495. Result of withdrawing- capital. If a special partner withdraws capital from the firm, contrary to the provisions of this article, he thereby becomes a general partner. Withdrawal of capital: See § 2493. Legislation § 2495. Enacted March 21, 1872; based on Stats. 1869-70, p. 124, § 16. § 2496. Preferential transfer void. Every transfer of the property of a special partnership, or of a partner therein, made after or in contemplation of the insolvency of such partner- ship or partner, with intent to give a preference to any creditor of such partnership or partner over any other creditor of such partnership, is void against the creditors thereof; and every judgment confessed, lien created, or security given, in like manner and with the like intent, is in like manner void. Legislation § 2496. Enacted March 21, 1872; based on Stats. 1869-70, p. 124, § 17. AETICLE ni. Liability of Partners. § 2500. Liability of partners. § 2501. Of special partners. § 2502. Liability for unintentional act. § 2503. Who may question existence of special partnership. § 2500. Liability of partners. The general partners in a special partnership are liable to the same extent as partners in a general partnership. Legislation § 2500. Enacted March 21, 1872; based on Stats. 1869-70, p. 124, § 18. § 2501. Of special partners. The contribution of a special partner to the capital of the firm, and the increase thereof, is liable for its debts, but he is not otherwise liable therefor, except as follows : 1. If he has Avillfully made or permitted a false or materially defective statement in the certificate of the partnership, the affidavit filed therewith, or the published announcement there- of, he is liable, as a general partner, to all creditors of the firm; 2. If he has willfully interfered with the business of the firm, except as permitted in article two of this chapter, he is liable in like manner ; or, § 2507 CIVIL CODE. ees 3. If he has willfully joined in or assented to an act contrary to any of the i^rovisions of article two of this chapter, he is liable in like manner. False certificate: See ante, §§ 2480, 2482. "Article two of this chapter": Ante, §§ 2489-2496. Legislation § 2501. Enacted March 21, 1872; based on Stats. 1869-70, p. 124, § 19. § 2502. Liability for unintentional act. When a special partner has nnintentionally 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 actually misled thereby to his prejudice. Legislation § 2502. Enacted March 21, 1872; based on Stats. 1869-70, p. 125, § 20. § 2503. Who may question existence of special partnership. One who, upon making a contract with a partnership, accepts from or gives to it a written memorandum of the contract, stat- ing that the partnership is special, and giving the names of the special partners, cannot afterwards charge the persons thus named as general partners upon that contract, by reason of an error or defect in the proceedings for the creation of the special partnership, prior to the acceptance of the memoran- dum, if an effort has been made by the partners, in good faith, to form a special partnership in the manner required by article one of this chapter. "Article one of this chapter": Ante. §§ 2477-2485. Legislation § 2503. Enacted March 21, 1872; based on Stats. 1869-70, p. 125, § 21. ARTICLE IV. Alteration and Dissolution of the Partnership. § 2507. When special partnership becomes general. § 2508. How new special partners may be admitted. § 2509. Dissolution of special partnership. Notice. § 2510. The name of a special partner not used, unless. § 2507. When special partnership becomes general. A special partnership becomes general if, Avithin ten days after any partner withdraws from it, or any new partner is received into it, or a change is made in the nature of its business or in its name, a certificate of such fact, duly verified and signed by one or more of the partners, is not filed with the county clerk and recorder with Avhom the original certificate of the part- nership was filed, and notice thereof published as is provided in article one of this chapter for the publication of the cer- tificate. "Article one of this chapter": Ante, §§ 2477-2485. 669 MINING PARTNERSHIP. § 2511 Legislation § 2507. Enacted March 21, 1872; based on Stats. 1869-70, p. 125, § 22. § 2508. How new special partners may be admitted. New. special partners may be admitted into a special partnership upon a certificate, stating the names, residences, and contribu- tions to the common stock of each of such partners, signed by each of them, and by the general partners, verified, acknowl- edged, or proved, according to the provisions of article one of this chapter, and filed with the county clerk and recorder with whom the original certificate of the partnership was filed. "Article one of this chapter": Ante, §§ 2477-2485. Legislation § 2508. Enacted March 21, 1872; based on Stats. 1869-70, p. 125, § 23. § 2509. Dissolution of special partnership. Notice. A special partnership is subject to dissolution in the same man- ner as a general partnership, except that no dissolution, by the act of the partners, is complete until a notice thereof has been filed and recorded in the office of the county clerk and recorder with whom the original certificate was recorded, and published once in each week, for four successive weeks, in a newspaper printed in each county where the partnership has a place of business. Dissolution of general partnership: See ante, §§ 2450 et seq. Legislation § 2509. Enacted March 21, 1872; based on Stats. 1869-70, p. 125, § 24. § 2510. The name of a special partner not used, unless. The name of a special partner must not be used in the firm name of partnership, uijless it be accompanied with the word "limited." Legislation § 2510. Enacted March 21, 1872; based on Stats. 1869-70, p. 125, § 25. CHAPTER IV. Mining Partnership. § 2511. When a mining partnership exists. § 2512. Express agreement not necessary to constitute. § 2513. Profits and losses, how shared. § 2514. Lien of partners. § 2515. Mine. Partnership property. § 2516. Partnership not dissolved by sale of interest. § 2517. Purchaser takes, sub.ject to liens, unless, etc. § 2518. Takes with notice of lien, when. § 2519. Contract in writing, when binding. § 2520. Owners of majority of shares govern. § 2511. When a mining partnership exists. A mining part- nership exists when two or more persons who own or acquire § 2517 CIVIL CODE. 670 a mining claim for the purpose of working it and extracting the mineral therefrom actually engage in Avorking the same. Legislation § 2511. Enacted March 21, 1872. § 2512. Express agreement not necessary to constitute. An express agreement to become partners or to share the profits and losses of mining is not necessary to the formation or ex- istence of a mining partnership. The relation arises from the ownership of shares or interests in the mine and working the same for the purpose of extracting the minerals therefrom. ~~ Legislation § 2512. Enacted March 21, 1872. § 2513. Profits and losses, how shared. A member of a min- ing partnership shares in the profits and losses thereof in the proportion which the interest or share he owns in the mine bears to the whole partnership capital or whole number of shares. Legislation § 2513. Enacted March 21, 1872. § 2514. Lien of partners. Each member of a mining part- nership has a lien on the partnership property for the debts due the creditors thereof, and for money advanced by him for its use. This lien exists notwithstanding there is an agreement among the partners that it must not. Corresponding sections as to general partners: See ante, § 2405; see also, post, §§ 2517, 2518. Legislation § 2514. Enacted March 21, 1872. § 2515. Mine. Partnership property. The mining-ground owned and worked by partners in mining, whether purchased with partnership funds or not, is partnership property. Legislation § 2515. Enacted March 21, 1872. § 2516. Partnership not dissolved by sale of interest. One of the partners in a mining partnership may convey his interest in the mine and business without dissoh-ing the partnership. The purchaser, from the date of his purchase, becomes a mem- ber of the partnership. Termination of partnership, generally: See ante, §§ 2449 et seq. Sale of mine on application of partner: See Code Civ. Proc, § 1530. Legislation § 2516. Enacted March 21, 1872. § 2517. Purchaser takes, subject to liens, unless, etc. 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 advances made for the benefit of the partnership, unless he purchased in good faith, for a valuable consideration, without notice of such lien. Legislation § 2517. Enacted March 21, 1872. 671 INSURANCE IN GENERAL. § 2527 § 2518. Takes with notice of lien, when. A purchaser of the interest of a partner in a mine when the partnership is en- gaged in working it, takes with notice of all liens resulting from the relation of the partners to each other and to the creditors of the partnership. Legislation § 2518. Enacted March 21, 1872. § 2519. Contract in writing-, when binding. No member of a mining partnership or other agent or manager thereof can, by a contract in writing, bind the partnership, except by ex- press authority derived from the members thereof. Legislation § 2519. Enacted March 21, 1872. § 2520, Owners of majority of shares govern. The decision of the members owning a majority of the shares or interests in a mining partnership binds it in the conduct of its business. Majority of members in general partnerships: Ante, § 2428. Legislation § 2520. Enacted March 21, 1872. TITLE XI. Insurance. Chapter I. Insurance in General. Articles I-XII. §§ 2527-2649. II. Marine Insurance. Articles I-IX. §§ 2655-2746. III. Fire Insurance. §§ 2752-2757. IV. Life and Health Insurance. §§ 2762-2766. CHAPTER I. Insurance in Greneral. Article I. Definition of Insurance. § 2527. II. What may be Insured. §§ 2531-2534. m. Parties to the Contract. §§ 2538-2542. IV. Insurable Interest. §§ 2546-2558. V. Concealment and Eepresentations. §§ 2561-2583. VI. The Policy. §§ 2586-2599. VII. Warranties. §§ 2603-2612. VIII. Premium. §§ 2616-2622. IX. Loss. §§ 2626-2629. X. Notice of Loss. §§ 2633-2637. XI. Double Insurance. §§ 2641, 2642. XII. Reinsurance. §§ 2646-2649. ARTICLE I. Definition of Insurance. § 2527. Insurance, what. § 2527. Insurance, what. Insurance is a contract whereby one undertakes to indemnify another against loss, damage, or liability, arising from an unknown or contingent event. § 2534 CIVIL CODE. 672 Insurance corporations: See ante, §§ 414 et seq. Office and duties of insurance commissioners: Pol. Code, §§ 59-4-634. Destruction of insured property: Pen. Code, § 548. Arson: Pen. Code, §§ 447-455. Legislation § 2527. Enacted March 21. 1872; based on Field's Draft. N. Y. Civ. Code, § 1357. AETICLE II. What may be Insured. § 2531. What events may be insured against. § 2532. Insurance of lottery or lottery prize unauthorized. § 2533. Usual kinds of insurance. § 2534. All subject to this chapter. § 2531. What events may be insured against. Any con- tingent or nnknown event, Avhether past or future, Avhieh 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. Insurable interest: See post, §§ 2546 et seq., 2659 et seq. Legislation § 2531. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 1358. § 2532. Insurance of lottery or lottery prize unauthorized. The preceding section does not authorize an insurance for or against the drawing of any lottery, or for or against any chance or ticket in a lottery drawing a prize. Lotteries: Pen. Code, §§ 324, 326. Legislation § 2532. Enacted March 21, 1872; based on Const. 1849, art. iv, § 27; Stats. 1861, p. 229, § 8. § 2533. Usual kinds of insurance. The most usual kinds of insurance are : 1. Marine insurance ; 2. Fire insurance ; 3. Life insurance ; 4. Health insurance ; and, 5. Accident insurance. Marine insurance: See post. §§ 2655 et seq. Fire insurance: See post. §§ 2752 et seq. Life and health insurance: See post, §§ 2762 et seq. Legislation § 2533. Enacted March 21, 1872; based on Field's Draft, X. Y. Civ. Code, § 1359. § 2534. All subject to this chapter. All kinds of insurance are subject to the provisions of this chapter. Legislation § 2534. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 1360. 673 PARTIES TO CONTRACT OP INSURANCE. § 2541 AETICLE III. Parties to the Contract. § 2538. Designation of parties. § 2539. Who may insure. § 2540. Who may be insured. § 2541. Assignment to mortgagee of policy on thing insured. § 2542. New contract between insurer and assignee. § 2538. Designation of parties. The person who undertakes to indemnify another by a eontrtict of insurance is called the insurer, and the person indemnified is called the insured. Legislation § 2538. Enacted March 21, 1872; based on Field's Draft, K Y. Civ. Code, § 1361. § 2539. Who may insure. Any one capable of making a contract may be an insurer, subject to the restrictions imposed by special statutes upon foreign corporations, non-residents, and others. Legislation § 2539. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1362. § 2540. Who may be insured. Any one except a public enemy may l^e insured. Legislation § 2540. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1363. § 2541. Assig-nment to mortg-agee of policy on thing insured. Unless the policy otherwise provides, where a mortgagor of property effects insurance in his own name providing that the loss shall be payable to the mortgagee, or assigns a policy of insurance to a mortgagee, the insurance is deemed to be upon the interest of the mortgagor, who does not cease to be a party to the original conti-act, and any act of his, prior to the loss, which would otherwise avoid the insurance will have the same effect, although the property is in the hands of the mort- gagee, but any act which, under the contract of insurance, is to be performed by the mortgagor, may be performed by the mortgagee therein named, with the same effect as if it had been performed by the mortgagor. [Amendment approved 1909 ; Stats. 1909, p. 914.] Legislation § 2541. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, §1364; Bergen v. Builders' Insurance Co., 28 Cal. 541), and then read: "Where a mortgagor of property effects in- surance in his own name, providing that the loss shall be payable to the mortgagee, or assigns a policy of insurance to a mortgagee, 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 would otherwise avoid the insurance will have the same effect, although the property' is in the hands of the mortgagee." 2. Amendment by Stats. 1901, p. 416; unconstitutional. See note, § 4, ante. Civ. Code — 43 § 2547 CIVIL CODE. 674 3. Amended by Stats. 1905, p. 616, adding the final clause after "the mortgagee," which did not then have the words "therein named"; the code commissioner saying of the addition, that it "is designed to au- thorize a mortgagee in whose favor insurance is effected, to perform for the mortgagor any acts to be performed by him, with the same effect as if performed by the mortgagor." 4. Amended by Stats. 1909, p. 914. § 2542. New contract between insurer and assig^nee. If an insurer assents to the transfer of-~an insurance from a mort- gagor to a mortgagee, and, at the time of his assent, imposes further obligations on the assignee, making a new contract with him, the acts of the mortgagor cannot affect his rights. Legislation § 2542. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1365. AKTICLE rV. Insurable Interest. § 2546. Insurable interest, what. § 2547. In what may consist. § 2548. Interest of carrier or depositary. § 2549. Mere expectancies. § 2550. Measure of interest in property. § 2551. Insurance without interest, illegal. § 2552. When interest must exist. § 2553. Effect of transfer. § 2554. Transfer after loss. § 2555. Exception in the case of several subjects in one policy. § 2556. In ease of the death of the insured. § 2557. In the case of transfer between co-tenants. § 2558. Policy, when void. §2546. Insurable interest, what. Every interest in prop- erty, or any relation thereto, or liability in respect thereof, of such a nature that a contemplated peril might directly damnify the insured, is an insurable interest. Partner: See post, § 2590. Bailees or carriers: See post, § 2548. Future products insurable: See post, § 2549. Life insurance: See post, §§ 2762, 2763. Stating insurer's interests in policy: See post, §§ 2568, 2587. Legislation § 2546. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1366. § 2547. In what may consist. An insurable interest in prop- erty may consist in : 1. An existing interest ; 2. An inchoate interest founded on an existing interest ; or, 3. An expectancy, coupled with an existing interest in that out of which the expectancy arises. Legislation § 2547. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1367. 675 INSURABLE INTEREST. § 2554 § 2548. Interest of carrier or depositary. A carrier or de- positary of any kind has an insurable interest in a thing held by him as such, to the extent of its value. Legislation § 2548. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1368. § 2549. Mere expectancies. A mere contingent or expect- ant interest in anything, not founded on an actual right to the thing, nor upon any valid contract for it, is not insurable. Legislation § 2549. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1369. § 2550. Measure of interest in property. The measure of an insurable interest in property is the extent to which the insured might be damnified by loss or injury thereof. Insurance without interest: See post, § 2551. Measure of indemnity in marine insurance: See post, §2736. Legislation § 2550. Enacted March 21, 1872; based on Field's Draft, jST. Y. Civ. Code, § 1370. § 2551. Insurance without interest, illegal. The sole object of insurance is the indemnity of the insured, and if he has no insurable interest the contract is void. Legislation § 2551. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1371. § 2552. When interest must exist. An interest insured must exist when the insurance takes effect, and when the loss occurs, but need not exist in the mean time. Legislation § 2552. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1372. § 2553. Effect of transfer. Except in the cases specified in the next four sections, and in the cases of life, accident, and health insurance, a change of interest in any part of a thing insured, unaccompanied by a corresponding change of interest in the insurance, suspends the insurance to an equivalent ex- tent, until the interest in the thing and the interest in the in- surance are vested in the same person. Transfer by partner: See post, § 2557. Transfer by co-owner: See post, § 2557. Transfer by operation of law: Post, § 2556. Transfer of thing insured does not transfer policy: See post, § 2593. Transfer of life insurance policy: See post, § 2764. Legislation § 2553. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1373. § 2554. Transfer after loss. A change of interest in a thing insured, after the occurrence of an injury which results in a loss, does not affect the right of the insured to indemnity for the loss. § 2558 . CIVIL CODE. 676 Legislation § 2554. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1374. § 2555. Exception in the case of several subjects in one policy. A change of interest in one or more of several distinct things, separately insured by one policy, does not avoid the in- surance as to the others. Legislation, § 2555. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1375. § 2556. In case of the death of the insured. A change of interest, by will or succession, on the death of the insured, does not avoid an insurance ; and his interest in the insurance passes to the person taking his interest in the thing insured. Legislation § 2556. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1376. § 2557. In the case of transfer between co-tenants. A trans- fer of interest by one of several partners, joint owners, or owners in common, who are jointly insured, to the others, does not avoid an insurance, even though it has been agreed that the insurance shall cease upon an alienation of the thing in- sured. Insurance by partner or co-tenant: See post, § 2590. Legislation § 2557. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1377. § 2558. Policy, when void. Every stipulation in a policy of insurance for the payment of loss Avhether the person insured has or has not any interest in the property insured, or that the policy shall be received as proof of such interest and every policy executed by way of gaming or wagering, is void. Legislation § 2558. Added by Code Amdts. 1873-74, p. 255. AETICLE V. Concealment and Representations. § 2561. Concealment, what. § 2562. Effect of concealment. § 2563. What must be disclosed. § 2564. Matters which need not be communicated without inquiry. § 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. Eepresentation, what. § 2572. When made. § 2573. How interpreted. § 2574. Eepresentation as to future. § 2575. How may affect policy. § 2576. When may be withdrawn. 677 CONCEALMENT AND REPRESENTATIONS. § 2564 § 2577. Time intended by representation. § 2578. Eepresenting information. § 2579. Falsity. § 2580. Effect of falsity. § 2581. Materiality. § 2582. Application of provisions of this article. § 2583. Eight to rescind. § 2561, Concealment, what. A neglect to communicate that which a party knoAvs, and ought to communicate, is called a concealment. Concealment, "Party" refers to either party to the contract: See post, § 2563. Concealment in marine insurance: See post, §§ 2669 et seq. Legislation § 2561, Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1378. § 2562. Effect of concealment, A concealment, whether in- tentional or unintentional, entitles the injured party to rescind a contract of insurance. Legislation § 2562. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1379. § 2563. What must be disclosed. Each party to a contract of insurance must communicate to the other, in good faith, all facts within his knowledge Avhich are or which he believes to be material to the contract, and which the other has not the means of ascertaining, and as to which he makes no warranty. Legislation § 2563. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1380. § 2564. Matters which need not be communicated without inquiry. Neither party to a contract of insurance is bound to communicate information of the matters following, except in answer to the inquiries of the other : 1. Those which the other knows ; 2. Those which, in the exercise of ordinary care, the other ought to know, and of which the former has no reason to suppose him ignorant ; 3. Those of w^hich 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, 5. Those which relate to a risk excepted from the policy, and which are not otherwise material. Waiver of communication: See post, § 2567. Facts covered by warranty: See post, § 2569. Legislation § 2564. Enacted March 21, 1872; based ou Field's Draft, N. Y. Civ. Code, § 1381; 2 Duer on Marine Insurance, pp. 552, 577, § 15; p. 579, § 16. § 2571 CIVIL CODE. _ 678 § 2565. Test of materiality. Materiality is to be determined not by the event, but solely by the probable and reasonable in- fluence of the facts upon the party to whom the communica- tion is due, in forming his estimate of the disadvantages of the proposed contract, or in making his inquiries. Materiality of representation: See post, § 2581. Legislation § 2565. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1382; 2 Duer on Marine Insurance, pp. 382-403. § 2566. Matters which each is bound to know. Each party to a contract of insurance is bound to know all the general causes which are open to his inquiry, equally with that of the other, and which may affect either the political or material perils contemplated ; and all general usages of trade. Legislation § 2566. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1383; a Duer on Marine Insurance, p. 560. § 2567. Waiver of communication. The right to informa- tion of material facts may be Avaived, either by the terms of insurance or by neglect to nmke inquiries as to such facts, where they are distinctly implied in other facts of Avhich information is communicated. Legislation § 2567. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1384. §2568. Interest of insured. Information of the nature, or amount of the interest of one insured need not be com- municated unless in answer to an inquiry, except as prescribed by section two thousand five hundred and eigl^ty-seven. Legislation § 2568. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1385. § 2569. Fraudulent warranty. An intentional and fraud- ulent omission, on the part of one insured, to communicate in- formation of matters proving or tending to prove the falsity of a warranty, entitles the insurer to rescind. Legislation § 2569. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 1386; 2 Duer on Marine Insurance, pp. 435, 573. § 2570. Matters of opinion. Neither party to a contract of insurance is bound to communicate, even upon inquiry, in- formation of his own judgment upon the matters in question. Legislation § 2570. Enacted March 21, 1872; based on Field's Draft, K Y. Civ. Code, § 1386; 2 Duer on Marine Insurance, p. 583. § 2571. Representation, what. A representation jnay be oral or written. Representations in marine insurance: Post, §§ 2676, 2677. Legislation § 2571. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1388. 679 CONCEALMENT AND REPRESENTATIONS. § 2579 § 2572. When made. A representation may be made at the same time with issuing the policy, or before it. Warranties: See post, §§ 2603, 2604. Legislation § 2572. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1389, modified. § 2573, How interpreted. The language of a representation is to be interpreted by the same rules as the language of con- tracts in general. Interpretation of contracts: See ante, § 1635. Legislation § 2573. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1390. § 2574. Representation as to future. A representation as to the future is to be deemed a promise, unless it appears that it Avas merely a statement of belief or expectation. Legislation § 2574. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1391; 2 Duer on Marine Insurance, p. 664. § 2575. How may affect policy. A representation cannot be allowed to qualify an express provision in a contract of in- surance ; but it may qualify an implied warranty. . Legislation § 2575. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1392; 2 Duer on Marine Insurance, p. 671. § 2576. When may be withdrawn. A representation may be altered or withdraAvn before the insurance is effected, but not afterwards. Legislation § 2576. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1393; 2 Duer on Marine Insurance, p. 679. § 2577. Time intended by representation. The completion of the contract of insurance is the time to which a representa- tion must be presumed to refer. Legislation § 2577. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1394; 2 Duer on Marine Insurance, p. 679. § 2578. Representing" information. "When a person insured has no personal knowledge of a fact, he may nevertheless re- peat information which he has upon the subject, and which he believes to be true, 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, unless it proceeds from an agent of the insured, whose duty it is to give the intelligence. Legislation § 2578. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1395; 2 Duer on Marine Insurance, pp. 703-705. § 2579. Falsity. A representation is to be deemed false when the facts fail to correspond with its assertions or stipula- tions. § 2586 CIVIL CODE. 680 Legislation § 2579. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1396. § 2580. Effect of falsity. If a representation is false in a material point, whether affirmative or promissory, the injured party is entitled to rescind the contract from the time when the representation becomes false. Legislation § 2580. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1397; 2 Duer on Marine Insurance, pp. 680, 749-769; 5 Id., p. 587. § 2581. Materiality. The materiality of a representation is determined by the same rule as the materiality of a conceal- ment. Materiality of representation, how determined: See ante, § 2565. Legislation § 2581. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1398. § 2582. Application of provisions of this article. The pro- visions of this article apply as well to a modification of a contract of insurance as to its original formation. Legislation § 2582. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1399. § 2583. Right to rescind. AVhenever a right to rescind a contract of insurance is given to the insurer by any provision of this chapter, such right may be exercised at any time previous to the commencement of an action on the contract. Legislation § 2583. Added by Code Amdts. 1873-74, p. 255. ARTICLE VI. The Policy. § 2586. Policy, what. § 2587. What must be specified in a policy. § 2588. Whose interest is covered. § 2589. Insurance by agent or trustee. § 2590. Insurance by part-owner. § 2591. General terms. § 2592. Successive owners. § 2593. Transfer of the thing insured. § 2594. Open and valued policies. § 2595. Open policy, what. § 2596. Valued policy, what. § 2597. Eunning policy, what. § 2598. Effect of receipt. • § 2599. Agreement not to transfer. § 2586. Policy, what. The written instrument, in which a (X)iitraot of insurance is set forth, is called a policy of insurance. Legislation § 2586. Enacted March 21, 1872; based en Field's Draft, N. Y. Civ. Code. § 1400. 681 THE POLICY OF INSURANCE. § 2592 § 2587. What must be specified in a policy. A policy of in- surance must specity : 1. The parties between whom the contract is made ; 2. The rate of premium ; 3. The property or life insured ; 4. The interest of the insured in property insured, if he is not the absolute owner thereof; 5. The risks insured against ; and, 6. The period during which the insurance is to continue. Legislation § 2587. Enaeted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1401. § 2588. Whose interest is covered. AVhen the name of the person intended to be insured is speei^ed in a policy, it can be applied only to his OAvn proper interest. Stating interest of insured: See ante, § 2568. Insurable interest, generally: See ante, § 2546. Legislation § 2588. Enaeted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1402. § 2589. Insurance by agent or trustee. When an insurance is made by an agent or trustee, the fact that his principal or beneficiary is the person really insured may be indicated by describing him as agent or trustee, or by other general words in the policy. Legislation § 2589. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1403. § 2590. Insurance by part-owner. To render an insurance, effected by one partner or part-owner, applicable to the in- terest of his copartners, or of other part-owniers, it is necessary that the terms of the policy should be such as are applicable to the joint or common interest. Transfer of policy from one partner to another: See ante, § 2557. Transfer by co-owner: See ante, § 2557. Legislation § 2590. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 1404; 8 Kent's Com., p. 258. §2591. General terms. When the description of the in- sured in a policy is so general that it may comprehend any per- son or any class of persons, he only can claim the benefit of the policy who can show that it was intended to include him. Legislation § 2591. Enacted March 21, 1872; based on Field's Draft, ISr. Y. Civ. Code, § 1405. § 2592. Successive owners. A policy may be so framed that it will inure to the benefit of whomsoever, during the contin- uance of the risk, may become the owner of the interest insured. Legislation § 2592. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1406. § 2599 CIVIL CODE. 682 § 2593. Transfer of the thing insured. The mere transfer of a thing insured does not transfer the policy, but suspends it until the same person becomes the owner of both the policy and the thing insured. Transfer of interest: See, generally, on alienation of interest, ante, §§ 2553 et seq. Legislation § 2593. Enacted March 21,'»1872; based on Field's Draft, N. Y. Civ. Code, § 1407. §2594. Open and valued policies. A policy is either open or valued. Legislation § 2594. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1408. § 2595. Open policy, what. An open policy is one in which the value of the thing insured is not agreed upon, but is left to be ascertained in case of loss. Legislation § 2595. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1409; 3 Kent's Com., p. 272. § 2596. Valued policy, what. A valued policy is one which expresses on its face an agreement that the thing insured shall be valued at a specified sum. Valuation in marine insurance: See post, § 2736. Legislation § 2596. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1410. § 2597. Running' policy, what. A running policy is one which contemplates successive insurances, and which provides that the object of the policy may be from time to time defined, especially as to the subjects of insurance, by additional state- ments or indorsements. Legislation § 2597. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1411. § 2598. Effect of receipt. An acknowledgment in a policy of the receipt of premium is conclusive evidence of its payment, so far as to make the policy binding, notwithstanding any stipulation therein that it shall not be binding until the premium is actually paid. Premiums, in general: See post, §§ 2616 et seq. Legislation § 2598. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1412. § 2599. Agreement not to transfer. An agreement made before a loss, not to transfer the claim of a person insured against the insurer, after the loss has happened, is void. Legislation § 2599. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 1413. 683 WARRANTIES IN INSURANCE. § 2607 AETICLE VII. Warranties. § 2603. Warranty, express or implied. § 2604. Form. § 2605. Express warranties to be in policy. § 2606. Past, present, and future warranties. § 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 provide for avoidance. § 2612. Breach without fraud. § 2603. Warranty, express or implied. A warranty is either express or implied. Express warranties to he in policy: See post, § 2605. Implied warranties in marine insurance: See post, §§ 2681 et seq. Legislation § 2603. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1414. § 2604. Form. No particular form of words is necessary to create a warranty. Legislation § 2604. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1415. § 2605. Express warranties to be in policy. 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. [Amendment approved 1874; Code Amdts. 1873-74, p. 255.] Representations: See ante, §§ 2571 et seq. Legislation § 2605. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1416), and then read: "Every express war- ranty, made at or before the execution of a policy, must be contained in the policy itself, and another instrument, whether tipon the same paper or not, cannot be referred to as making a part of the policy for this purpose, even by agreement of the parties." 2. Amended by Code Amdts. 1873-74, p. 255. § 2606. Past, present, and future warranties. A warranty may relate to the past, the present, the future, or to any or all of these. Legislation § 2606. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1417. § 2607. Warranty as to past or present. A statement in a policy, of a matter relating to the person or thing insured, or to the risk, as a fact, is an express warranty thereof. Legislation § 2607. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1418. § 2612 CIVIL CODE. 684 § 2608. Warranty as to the future. A statement in a policy, which imports that it is intended to do or not to do a thing which materially affects the risk, is a warranty that such act or omission shall take place. Legislation § 2608. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1419; 5 Ducr on Marine Insurance, p. 587. § 2609. Performance excused. When, before the time ar- rives for the performance of a warranty relating to the future, a loss insured against happens, or performance becomes unlaw- ful at the place of the contract, or impossible, the omission to fulfill the warranty does not avoid the policy. [Amendment approved 1874 ; Code Amdts. 1873-74, p. 255.1 Rescinding contract of insurance: See ante, § 2583, as to when right to rescind may be exercised. Legislation § 2609. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1420. 2. Amended by Code Amdts. 1873-74, p. 255, adding "at the place of the contract." § 2610. What acts avoid the policy. The violation of a ma- terial warranty, or other material provision of a policy, on the part of either party thereto, entitles the other to rescind. Distinguishes between material and immaterial warranties. Hereto- fore all warranties were deemed material. The insurer can, how- ever, protect himself, under § 2611, post, by declaring in the policy that violation of an immaterial warranty will avoid the contract. Legislation § 2610. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1421. § 2611. Policy may provide for avoidance. A policy may declare that a violation of specified provisions thereof shall avoid it, otherwise the breach of an immaterial provision does not avoid the policy. Legislation § 2611. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1422. § 2612. Breach without fraud. A breach of warranty, without fraud, merely exonerates an insurer from the time that it occurs, or where it is broken in its inception prevents the policy from attaching to the risk. Breach of warranty without fraud, return of premiiun: See post, § 2619. Legislation § 2612. Enacted March 21, 1872; based on Field's Draft, N, Y. Civ. Code, § 1423; 2 Duer.on Marine Insurance, p. 435. 685 PREMIUM ON POLICIES. ^ § 2618 AETICLE VIII. Premium. § 2616. When premium is earned. § 2617. Eeturn of premium. § 2618. When not allowed. § 2619. Eeturn for fraud. § 2620. Over-insurance by several insurers. § 2621. Contribution. § 2622. Proportionate contribution. § 2616. When premmm is earned. An insurer is entitled to payment of the premium as soon as the thing insured is ex- posed to the peril insured against. Receipt in policy, how far conclusive of payment: See ante, § 2598. Legislation § 2616. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1424. § 2617. Return of premium. A person insured is entitled to a return of premium, as follows : One. To the whole premium, if no part of his interest in the thing insured be exposed to any of the perils insured against. Two. 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 deducting from the Avhole premium any claim for loss or dam- age under the policy Avhich has previously accrued. [Amend- ment approved 1874; Code Amdts. 1873-74, p. 256.] Return for fraud: See post, § 2619. Legislation § 2617. 1. Enacted March 21, 1872 (based on Field's Draft, jST. Y. Civ. Code, § 1425), and then read: "A person insured is entitled to a return of premium paid, or a ratable proportion thereof, if no part of his interest in the thing insured is exposed to any of the perils insured against; or, where the insurance is made for a definite period of time, if it is not exposed to such peril for the whole of that time." 2. Amended by Code Amdts. 1873-74, p. 256. § 2618. When not allowed. If a peril insured against has existed, and the insurer has been liable for any period, however short, the insured is not entitled to return of premiums, so far as that particular risk is concerned. [Amendment approved 1874; Code Amdts. 1873-74, p. 256.] Legislation § 2618. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1427), and then read: "If a peril insured against has existed, and the insurer has been liable for any period, however short, the insured is not entitled to a return of premium, so far as that particular risk is concerned, unless the insurance was for a definite period of time, in which case he is entitled to a proportionate return under the preceding section." 2. Amended by Code Amdts. 1873-74, p. 256. § 2626 CIVIL CODE. 686 § 2619. Return for fraud. A person insured is entitled to a return of the premium when the contract is voidable, on ac- count of the fraud or misrepresentation of the insurer, or on account of facts, of the existence of which the insured was ignorant without his fault; or when, by any default of the insured other than actual fraud, the insurer never incurred any liability under the policy. Legislation § 2619. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1425. § 2620. Over-insurance by several insurers. 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 insured in all the policies exceeds the insurable value of the thing at risk. '^ Double insurance, defined: See post, § 2641. Legislation § 2620. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1428. § 2621. Contribution. When an over-insurance is effected by simultaneous policies, the insurers contribute to the premium to be returned in proportion to the amount insured by their respective policies. Contribution in cases of double insurance: See post, § 2642. Legislation § 2621. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1429. § 2622. Proportionate contribution. AVhen an over-insur- ance is effected by successive policies, those only contribute to a return of the premium who are exonerated by prior in- surance from the liability assumed by them, and in proportion as the sum for which the premium was paid exceeds the amount for w^hich, on account of prior insurance, they could be made liable. Legislation § 2622. Eu^icted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1430. AETICLE IX. Loss. § 2626. Perils, remote and proximate. § 2627. Loss incurred in rescue from peril. § 2628. Excepted perils. § 2629. Negligence and fraud. § 2626. Perils, remote and proximate. An insurer is liable for a loss of which a peril insured against was the proximate cause ; although 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. 687 LOSS AND NOTICE OF. § 2633 Negligence of Insured: See post, § 2629. Perils of the sea, what included: See ante, § 2199. Legislation § 2626. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1431. § 2627. Loss incurred in rescue from peril. An insurer is liable where the thing insured is rescued from a peril insured against, that would otherwise have caused a loss, if in the course of such rescue the thing is exposed to a peril not insured against, which permanently deprives the insured of its posses- sion, in whole or in part; or where a loss is caused by efforts to rescue the thing insured from a peril insured against. Legislation § 2627. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1432. § 2628. Excepted perils. Where a peril is specially ex- cepted in a contract of insurance, 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 ex- cepted. Legislation § 2628. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1433; 1 Duer on Marine Insurance, p. 371. § 2629. Negligence and fraud. An insurer is not liable for a loss caused by the willful act of the insured; but he is not exonerated by the negligence of the insured, or of his agents or others. [Amendment approved 1874 ; Code Amdts. 1873-74, p. 256.] Legislation § 2629. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1434), and then read: "An insurer is not liable for a loss caused by the willful act of the insured; but he is not exonerated by the negligence of the insured, nor by fraud or negli- gence on the part of his agents or others." 2. Amended by Code Amdts. 1873-74, p. 256. ARTICLE X. Notice of Loss. § 2633. Notice of loss. § 2633a. Time for giving notice of accident, etc. § 2634. Preliminary proofs. § 2635. Waiver of defects in notice, etc. § 2636. Waiver of delay. § 2637. Certificate, when dispensed with. § 2633. Notice of loss. 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. [Amendment ap- proved 1874; Code Amdts. 1873-74, p. 256.] Legislation § 2633. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1435), and then read: "In case of loss, an § 2637 CIVIL CODE. 688 insurer is exonerated, if notice thereof is not given to bim by some person insured, or entitled to the benefit of an insurance, without un- necessary delay." 2. Amended by Code Amdts. 1873-74, p. 256. § 2633a. Time for giving notice of accident, etc. No con- ditions, stipulations or agreements contained in any applica-' tion for insurance in any foreign or domestic casualty or acci- dent insurance company, or contained in any policy issued by any such company, or in any way made by any such company, limiting the time within which notice of the accident or in- jury, or death, shall be given to such company to a period of less than twenty days after the happening of the accident, or injury, or death, shall be valid. Said notice may be given to the company insuring, at any time within twenty days after the happening of the accident, or injury, or death and shall be valid and binding on the company. Legislation § 2633a. Added by Stats. 1913, p. 677. § 2634. Preliminary proofs. When preliminary proof of loss is required by a policy, the insured is not bound to give such proof as would be necessary in a court of justice ; but it is sufficient for him to give the best evidence which he has in his power at the time. Legislation § 2634. Enacted March 21, 1872; based on Field's Draft,. N. Y. Civ. Code, § 1436. § 2635. Waiver of defects in notice, etc. All defects in a notice of loss, or in i^reliminary proof thereof, which the in- sured might remedy, and which the insurer omits to specify to him, without unnecessary delay, as grounds of objection, are waived. Legislation § 2635. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1437. § 2636. Waiver of delay. Delay in the presentation to an insurer of notice or proof of loss is waived, if caused by any act of his, or if he omits to make objection promptly and specifically upon that ground. Legislation § 2636. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1438. § 2637. Certificate, when dispensed vi^ith. If a policy re- quires, 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 use reasonable diligence to procure it, and in case of the refusal of such person to give it, then to furnish reason- able evidence to the insurer that such refusal was not induced by any just grounds of disbelief in the facts necessary to be certified. 689 DOUBLE INSURANCE. § 2642 Presenting false proofs upon policies: Pen. Code, § 549. Legislation § 2637. Enacted March 21, 1872; based on Field's Draft, N. y. Civ. Code, § 1439. ARTICLE XI. Double Insurance. § 2641. Double insurance. § 2642. Contribution in case of double insurance. § 2641. Double insurance. A double insurance exists where the same persOn is insured, by several insurers separately in respect to the same subject and interest. Legislation § 2641. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1440. § 2642. Contribution in case of double insurance. In case of double insurance, the several insurers are liable to pay losses thereon as follows : One. In fire insurance, each insurer must contribute ratably towards the loss, without regard to the dates of the several policies. Two. In marine insurance, the liability of the several in- surers for a total loss, whether actual or constructive, where the policies are not simultaneous, is in the order of the dates of the several policies; no liability attaching to a second or other subsequent policy, except as to the excess of the loss over the amount of all previous policies on the same interest. If two or more policies bear date upon the same day, they are deemed to be simultaneous, and the liability of insurers on simultaneous policies, is to contribute ratably with each other. The insolvency of any of the insurers does not affect the pro- portionate lialDility of the other insurers. The liability of all insurers on the same marine interest for a partial or average loss, is to contribute ratably. [Amendment approved 1874; Code Amdts. 1873-74, p. 257.] Return of premium by successive insurers: See ante, § 2622. Insurers in separate policies may be joined: See Code Civ. Proc, § 383. Legislation § 2642. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1441; Angell on Insurance, 22; 3 Kent's Com., p. 280), and then read: "In case of double insurance, the insured may claim payment of a loss from any one of the insurers, who, on paying it, may require the others to contribute ratably thereto." 2. Amended by Code Amdts. 1873-74, p. 257. Civ. Code — 44 § 2655 CIVIL CODE. 690 AETICLE XII. Reinsurance. § 2646. Reinsurance, what. § 2647. Disclosures required. § 2648. Eeinsurance presumed to be against liability. § 2649. Original insured has no interest. § 2646. Reinsurance, what. A contract of reinsurance is one by which an insurer procures a third person to insure him against loss or liability by reason of such original insurance. Legislation § 2646. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1442. § 2647. Disclosures required. Where an insurer obtains re- insurance, he must communicate all the representations of the original insured, and also all the knowledge and information he possesses, Avhether previously or subsequently acquired, which are material to the risk. Legislation § 2647. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1443; 2 Duer on Marine Insurance, p. 429. §2648. Reinsurance presumed to be ag-ainst liability. A reinsurance is presumed to be a contract of indemnity against liability, and not merely against damage. Legislation § 2648. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1444; Angell on Insurance, p. 138. § 2649. Original insured has no interest. The original in- sured has no interest in a contract of reinsurance. Legislation § 2649. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1445. CHAPTER II. Marine Insurance. Article I. Definition of Marine Insurance. § 2655. II. Insurable Interest. §§ 2659-2665. TIL Concealment. §§ 2669-2672. IV. Representations. §§ 2676, 2677. V. Implied Warranties. §§ 2681-2688. VI. The Voyage, and Deviation. §§ 2692-2697. VII. Loss. §'§ 2701-2712. VIIL Abandonment. §§ 2716-2732. IX. Measure of Indemnity. §§ 2736-2746. ARTICLE I. Definition of Marine Insurance. I 2655. Marine insurance, what. § 2655. Marine insurance, what. Marine insurance is an insurance against risks connected with navigation, to which 69l MARINE INSURANCE. INSURABLE INTEREST. § "^66^ a ship, cargo, freightage, profits, or other insurable interest in movable property, may be exposed during a certain voyage or a fixed period of time. Insurable interest: See ante, §§ 2546-2558. Legislation § 2655. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1446; 3 Kent's Com., p. 203. ARTICLE II. Insurable Interest. § 2659. Insurable interest in a ship. § 2660. Interest reduced by bottomry. § 2661. Freightage, what. § 2662. Expected freightage. § 2663. Interest in expected freightage, what. § 2664. Insurable interest in profits. § 2665. Insurable interest of charterer. § 2659. Insurable interest in a ship. The owner of a ship has in all cases an insurable interest in it, even when it has been chartered by one who covenants to pay him its value in case of loss. Legislation § 2659. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1447. § 2660. Interest reduced by bottomry. The insurable in- terest of the owner of a ship hypothecated by bottomry is only the excess of its value over the amount secured by bottomry. Insurable interest, generally: See ante, § 2546. Bottomry, defined: Post, § 3017. Legislation § 2660. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1448. § 2661. Freightage, what. Freightage, in the sense of a policy of marine insurance, signifies all the benefit derived by the owner, either from the chartering of the ship or its employ- ment for the carriage of his own goods or those of others. Marine insurance, what is: See ante, § 2655. Freightage defined: See ante, § 2110. Legislation § 2661. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1449. § 2662. Expected freightage. The owner of a ship has an insurable interest in expected freightage which he would have certainly earned but for the intervention of a peril insured against. Legislation § 2662. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1450. § 2663. Interest in expected freightage, what. The interest mentioned in the last section exists, in the case of a charter- party, when the ship has broken ground on the chartered voy- § 2671 cmL CODE. 692 age, and if a price is to be paid for the carriage of goods when they are actually on board, or there is some contract for putting them on board, and both ship and goods are ready for the specified voyage. Legislation § 2663. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1451. § 2664. Insurable interest in profits. One who has an inter- est in the thing from which profits are expected to proceed, lias an insurable interest in the profits. Legislation § 2664. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1452. § 2665. Insurable interest of charterer. The charterer of a ship has an insurable interest in it, to the extent that he is liable to be damnified by its loss. Legislation § 2665. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1453. ARTICLE ni. Concealment. § 2669. Information must be communicated. § 2670. Material information. § 2671. Presumption of knowledge of loss. § 2672. Concealments which only affect the risk in question. § 2669. Information must be communicated. In marine in- surance each party is bound to communicate, in addition to what is required by section two thousand five hundred and sixty-three, all the information which he possesses, material to the risk, except such as is mentioned in section two thousand five hundred and sixty-four, and to state the exact and whole truth in relation to all matters that he represents, or upon in- quiry assumes to disclose. Concealment in insurance, generally: See ante, §§ 2561 et seq. Concealment in marine insurance: Post, § 2672. Legislation § 2669. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1454; 2 Duer on Marine Insurance, pp. 3S1, 3SS; Angell on Insurance, p. 200. § 2670. Material information. In marine insurance, in- formation of the belief or expectation of a third person, in reference to a material fact, is material. Representation of expectation avoids contract when: Post, § 2677. Legislation § 2670. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1455; 2 Duer on Marine Insurance, p. 3SS. §2671. Presumption of knowledge of loss. A person in- sured by a contract of marine insurance is presumed to have had knowledge, at the time of insuring, of a prior loss, if the 693 MARINE INSURANCE. REPRESENTATIONS. § 2677 information might possibly have reached him in the usual mode of transmission, and at the usual rate of communication. Legislation § 2671. Enacted Mareh 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1456. § 2672. Concealments which only affect the risk in question. A concealment in a marine insurance, in respect to any of the following matters, does not vitiate the entire contract, but merely exonerates the insurer from a loss resulting from the risk concealed : 1. The national character of the insured; 2. The liability of the thing insured to capture and deten- tion; 3. The liability to seizure from breach of foreign laws of trade ; 4. The want of necessary documents ; and, 5. The use of false and simulated papers. Legislation § 2672. Enacted March 21, 1872; based on Field's Draft, K Y. Civ. Code, § 1457. AETICLE IV. Representations. § 2676. Effect of intentional falsity. § 2677. Representation of expectation. § 2676. Effect of intentional falsity. If a representation, by a person insured by a contract of marine insurance, is intentionally false in any respect, Avhether material or imma- terial, the insurer may rescind the entire contract. Representations, generally: See ante, §§ 2571 et seq. Legislation § 2676. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1458. § 2677. Representation of expectation. The eventual falsity of a representation as to expectation does not, in the absence of fraud, avoid a contract of insurance. Expectation of a third person, material: Ante, § 2670. Legislation § 2677. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1459. ARTICLE V. Implied Warranties. § 2681. Warranty of seaworthiness. § 2682. Seaworthiness, what. § 2683. At what time seaworthiness must exist. § 2684. What things are required to constitute seaworthiness. § 268'5. Different degrees of seaworthiness at different stages of the voyage. § 2686. Unseaworthiness during the voyage. § 2687. Seaworthiness for purposes of insurance on cargo. § 2688. Neutral papers. § 2684 CIVIL CODE. 694 § 2681. Warranty of seaworthiness. In every marine insur- ance upon a ship or freight, or freightage, or upon anything which is the subject of marine insurance, a warranty is implied that the ship is seaworthy. [Amendment approved 1874 ; Code Amdts. 1873-74, p. 257.] Seaworthiness, defined: See post, § 2682. Legislation § 2681. 1. Enacted Maroli 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1460), and then read: "In every marine in- surance upon ship or freightage, or upon anything belonging to the ship-owner, unless made for a specified length of time, a warranty is implied that the ship shall be seaworthy." 2. Amended by Code Amdts. 1873-74, p. 2.57. § 2682. Seaworthiness, what. A ship is seaworthy, when reasonably fit to perform the services, and to encounter the ordinary perils of the voyage, contemplated by the parties to the policy. Seaworthiness, warranty of: Post, §§ 2683-2685. Legislation § 2682. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1461. § 2683. At what time seaworthiness must exist. An implied warranty of seaworthiness is complied with if the ship be sea- worthy at the time of the commencement of the risk, except in the following cases : One. When the insurance is made for a specified length of time, the implied warranty is not complied with, unless the ship be seaworthy at the commencement of every voyage she may undertake during that time ; and, Tavo. When the insurance is upon the cargo, which, by the terms of the policy, or the description of the voyage, or the established custom of the trade, is to be transshipped at an in- termediate 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 particular voyage. ["Amendment approved 1874; Code Amdts. 1873-74, p. 257.] Legislation § 2683. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y.'Civ. Code, § 1462), and then read: "An implied warranty of seaworthiness is complied with if the ship is seaworthy at the time of the commencement of the risk." 2. Amended by Code Amdts. 1873-74, p. 257. §2684, What things are required to constitute seaworthi- ness. A Avarranty of seaworthiness extends not only to the condition of the structure of the ship itself, but requires that it be properly laden, and provided with a competent master, a sufficient number of competent officers and seamen, and the requisite appurtenances and equipments, such as ballast, cables, 695 IMPLIED WARRANTIES. VOYAGE, DEVIATION. § 2692 and anchors, cordage and sails, food, water, fuel, and lights, and other necessary or proper stores and implements for the voyage. Legislation § 2684. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1463. § 2685. Different degrees of seaworthiness at different stag'es of the voyage. Where different portions of the voyage contemplated by a policy differ in respect to the things requisite to make the ship seaworthy therefor, a Avarranty of seaworthiness is complied with if, at the commencement of each portion, the ship is seaworthy with reference to that portion. Legislation § 2685. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1464. § 2686. Unseaworthiness during the voyage. When a ship becomes unseaworthy during the voyage to which an insurance relates, an unreasonable delay in repairing the defect exon- erates the insurer from liability from any loss arising there- from. Legislation § 2686. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1465. § 2687. Seaworthiness for purposes of insurance on cargo. A ship which is seaworthy for the purpose of an insurance upon the ship may, nevertheless, by reason of being unfitted to re- ceive the cargo, be unseaworthy for the purpose of insurance upon the cargo. Legislation § 2687. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1466,- 1 Phillips on Insurance, § 723. § 2688. Neutral papers. Where the nationality or neutral- ity of a ship or cargo is expressly warranted, it is implied that the ship Avill carry the requisite documents to show such nation- ality or neutrality, and that it will not carry any documents which cast reasonable suspicion thereon. Legislation § 2688. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1467. ARTICLE VI. The Voyage, and Deviation. § 2692. Voyage insured, how determined. § 2693. Course of sailing, how determined. § 2694. Deviation, what. § 269.'5. When proper. § 2696. When improper. § 2697. Deviation exonerates the insurer. § 2692. Voyage insured, how determined. When the voy- age contemplated by a policy is described by the places of beginning and ending, the voyage insured is one which con- § 2697 CIVIL CODE. 696 forms to the course of sailing fixed by mercantile usage be- tween those places. Legislation § 2692. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1468. § 2693. Course of sailing, how determined. If the course of sailing is not fixed by mercantile usage, the voyage insured by a polic.y is the way between the places specified which, to a master of ordinary skill and discretion, Avould seem the most natural, direct, and advantageous. Legislation § 2693. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1469. § 2694. Deviation, what. Deviation is a departure from the course of the voyage insured, mentioned in the last two sec- tions, or an unreasonable delay in pursuing the voyage, or the commencement of an entirely different voyage. Legislation § 2694. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1470. § 2695. When proper. A deviation is proper : 1. When caused by circumstances over which neither the master nor the owner of the ship has any control ; 2. When necessary to comply with a warranty, or to avoid a peril, whether insured against or not ; S. When made in good faith, and upon reasonable grounds of belief in its necessity to avoid a peril ; or, 4. When made in good faith, for the purpose of saving human life, or relieving another vessel in distress. Legislation § 2695. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1471; 3 Kent's Com., p. 323. § 2696. When improper. Every deviation not specified in the last section is improper. Legislation § 2696. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1472. § 2697. Deviation exonerates the insurer. An insurer is not liable for any loss happening to a thing insured subse- quently to an improper deviation. Legislation § 2697. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 1473. 697 LOSS IN MARINE INSURANCE. § 2705 AETICLE VII. Loss. § 2701. Total and partial' loss. § 2702. Partial loss. § 2703. Actual and constructive total loss. § 2704. Actual total loss, what. § 2705. Constructive total loss. § 2706. Presumed actual loss. § 2707. Insurance on cargo, etc., when voyage is broken up. § 2708. Cost of reshipnient, etc. § 2709. When insured is entitled to payment. § 2710. Abandonment of goods on insurance of profits. [Repealed.] § 2711. Average loss. § 2712. Insurance against total loss. § 2701. Total and partial loss. A loss may be either total or partial. Total loss, either actual or constructive: See post, § 2703. Actual total loss, defined: See post, § 2704. Constructive total loss, defined: See post, § 2705. Legislation § 2701. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1474. § 2702. Partial loss. Every loss which is not total is partial. Liability on partial loss: Post, § 2737. One third new for old: Post, § 2746. Legislation § 2702. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1475; Bouvier's Law Diet., tit. "Loss." § 2703. Actual and constructive total loss. A total loss may be either actual or constructive. Actual total loss, defined: Post, § 2704. Actual loss, when presumed: Post, § 2706. Constructive loss, defined: Post, § 2705. Legislation § 2703. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1476. § 2704. Actual total loss, what. An actual total loss is caused by : 1. A total destruction of the thing insured ; 2. The loss of the thing l)y sinking, or by being broken up ; 3. Any damage to the thing which renders it valueless to the owner for the purposes for which he held it; or, 4. Any other event which entirely deprives the owner of the possession, at the port of destination, of the thing insured. Legislation § 2704. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1477. § 2705. Constructive total loss. A constructive total loss is one which gives to a person insured a right to abandon, under section two thousand seven hundred and seventeen. Abandonment for constructive total loss: Post, §§ 2716 et seq. § 2711 CIVIL CODE. 698 Legislation § 2705. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1478. § 2706. Presumed actual loss. An actual loss may be pre- sumed from the continued absence of a ship without being heard of; and the length of time which is sufficient to raise this presumption depends on the circumstances of the case. Legislation § 2706. Enacted March 21. 1872; based on Field's Draft. N. Y. Civ. Code, § 1479. § 2707. Insurance on cargo, etc., when voyage is broken up. When a ship is prevented, at an intermediate port, from com- pleting the voyage, by the perils insured against, the master must make every exertion to procure, in the same or a con- tiguous port, another ship, for the purpose of conveying the cargo to its destination ; and the liability of a marine insurer thereon continues after thev are thus reshipped. [Amendment approved 1874; Code Amdts. 1873-74, p. 258.] Constructive total loss of cargo: See post, §§ 2716 et seq. Legislation § 2707. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1480. 2. Amended by Code Amdts. 1873-74, p. 258, adding "by the perils insured against." § 2708. Cost of reshipment, etc. In addition to the liability mentioned in tlie last section, a marine insurer is bound for damages, expenses of discharging, storage, reshipment, extra freightage, and -all other expenses incurred in saving cargo reshipped pursuant to the last section, up to the amount in sured. Legislation § 2708. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1481. § 2709. When insured is entitled to payment. Upon an actual total loss, a person insured is entitled to payment with- out notice of abandonment. Legislation § 2709. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1482. § 2710. Abandonment of goods on insurance of profits. [Repealed 1874; Code Amdts. 1873-74, p. 258.] Legislation § 2710. 1. Enacted March 21, 1872. 2. Eepealed by Code Amdts. 1873-74, p. 258. § 2711. Average loss. Where it has been agreed that au insurance upon a particular thing, or class of things, shall be free from particular 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 worth- 699 ABANDONMENT IN MARINE INSURANCE. § 2717 less ; but he is liable for his proportion of all general average loss assessed upon the thing insured. [Amendment approved 1874; Code Amdts. 1873-74, p. 258.] General average, liability for: See post, § 2744. Legislation § 2711. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1484. 2. Amended by Code Amdts. 1873-74, p. 258, (1) adding "particular" before "average," (2) changing "becomes" to "become" before "entirely worthless," and (3) adding the final clause following these latter words. § 2712. Insurance against total loss. An insurance confined in terms to an actual total loss, does not cover a constructive total loss, but covers any loss Avhich necessarily results in de- priving the insured of the possession, at the port of destina- tion, of the entire thing insured. [Amendment approved 1874; Code Amdts. 1873-74, p. 259.] Legislation § 2712. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1485. 2. Amended by Code Amdts. 1873-74, p. 259, (1) changing "a total loss" to "an actual total loss," and (2) omitting "and also a general average loss" at end of section. AETICLE VIII. Abandonment. § 2716. Abandonment, what. § 2717. When insured may abandon. § 2718. Must be unqualified. § 2719. When may be made. § 2720. Abandonment may be defeated. § 2721. How made. § 2722. Eequisites of notice. § 2723. No other cause can be relied on. § 2724. Effect. § 2725. Waiver of formal abandonment. § 2726. Agents of the insured become agents of the insurer. § 2727. Acceptance not necessary, § 2728. Acceptance conclusive. § 2729. Accepted abandonment, irrevocable. § 2730. Freightage, how affected by abandonment of ship. § 2731. Refusal to accept. § 2732. Omission to abandon. § 2716. Abandonment, what. Abandonment is the act by which, after a constructive total loss, a person insured by con- tract of marine insurance declares to the insurer that he re- linquishes to him his interest in the thing insured. Abandonment, requisites of: Post, §§ 2718-2723. Constructive total loss, defined: Ante, § 2705. Legislation § 2716. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1486. § 2717. When insured may abandon. A person insured by a contract of marine insurance may abandon the thing insured, § 2721 CIVIL CODE, 700 or any particular portion thereof separately valued by the policy, or otherwise separately insured, and recover for a total loss thereof, Avhen 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 value more than one half ; 3. If the thing insured, being a ship, the contemplated voy- age cannot be lawfully performed without incurring an expense 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 voyage cannot be performed nor another ship procured by the master, within a reasonable time and with reasonable diligence, to forward the cargo, Avithout incurring the like expense or risk. But freightage cannot in any case be abandoned, unless the ship is also abandoned. Freightage, how affected by abandonment: Post, § 2730. Legislation § 2717. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1487. § 2718. Must be unqualified. An abandonment must be neither partial nor concTitional. Legislation § 2718. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1488. § 2719. When may be made. An abandonment must be made within a reasonable time after the information of the loss, and after the commencement of the voyage, and before the party abandoning has information of its completion. Omitting to abandon, insured may still recover for his actual loss: Post, § 2732. Legislation § 2719. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1489. § 2720. Abandonment may be defeated. AVhere the in- formation upon which an abandonment has been made proves incorrect, or the thing insured was so far restored when the abandonment was made that there was then in fact no total loss, the abandonment becomes ineffectual. Legislation § 2720. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1490. § 2721. How made. Abandonment is made by giving notice thereof to the insurer, Avhieh may be done orally, or in writing. Legislation § 2721. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1491. 701 ABANDONMENT IN MARINE INSURANCE. § 2728 §2722. Requisites of notice. 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. No other cause can be relied on: See post, § 2723. Legislation § 2722. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1492. § 2723. No other cause can be relied on. An abandonment can be sustained only upon the cause specified in the notice thereof. Legislation § 2723. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 149.3. § 2724. Effect. An abandonment is equivalent to a trans- fer, by the insured, of his interest, to the insurer, with all the chances of recovery and indemnity. Subrogation of insurer: See post, § 2745. Legislation § 2724. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1494. § 2725. Waiver of formal abandonment. If a marine in- surer 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 abandon- ment. Legislation § 2725. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1495. § 2726. Agents of the insured become agents of the insurer. 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. Legislation § 2726. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1496. § 2727. Acceptance not necessary. An acceptance of an abandonment is not necessary to the rights of the insured, and is not to be presumed from the mere silence of the insurer, upon his receiving notice of abandonment. Compare § 2731, post. Legislation § 2727. Enacted March 21, 1872; based on Field's Draft, X. Y. Civ. Code, § 1497. § 2728. Acceptance conclusive. The acceptance of an aban- donment, whether express or implied, is conclusive upon the parties, and admits the loss and the sufficiency of the abandon- ment. § 2736 ^ CIVIL CODE. 702 Legislation § 2728. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1498. § 2729. Accepted abandonment, irrevocable. An abandon- ment once made and accepted is irrevocable, unless the ground upon which it was made proves to be unfounded. Legislation § 2729. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1499. § 2730. Freightag-e, how affected by abandonment of ship. On an accepted abandonment of a ship, freightage earned previous to the loss belongs to the insurer thereof ; but freight- age subsequently earned belongs to the insurer of the ship. Abandonment of freightage: Ante, § 2717, subd. 4. Legislation § 2730. Enacted March 21, 1872; based oq Field's Draft, N. Y. Civ. Code, § 1500. § 2731. Refusal to accept. If an insurer refuses to accept a valid abandonment, he is liable as upon an actual total loss, deducting from the amount any proceeds of the thing insured Avhich may have come to the hands of the insured. Acceptance not presumed from silence: Ante, § 2727. Legislation § 2731. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1501. § 2732. Omission to abandon. If a person insured omits to abandon, he may nevertheless recover his actual loss. Legislation § 2732. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1502. ARTICLE IX. Measure of Indemnity. § 2736. Valuation, when conclusive. § 2737. Partial loss. § 2738. Profits. § 2739. Valuation apportioned. § 2740. Valuation applied to profits. § 2741. Estimating loss under an open policy. § 2742. Arrival of thing damaged. § 2743. Labor and expenses. § 2744. General average. § 2745. Contribution. § 2746. One third new for old. § 2736. Valuation, when conclusive. A valuation in a policy of marine insurance is conclusive between the parties thereto in the adjustment of either a partial or total loss, if the in- sured 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, 703 MARINE INSURANCE. MEASURE OF INDEMNITY. § 2741 he may show the real value. But a valuation fraudulent - in fact entitles the insurer to rescind the contract. Valued policies: See ante, § 2596. Valued policy on freightage or cargo: See post, § 2739. Valuation of profits: See post, § 2740. Valued policy of fire insurance: See post, § 2756. Legislation § 2736. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1503; 3 Kent's Com., p. 274. § 2737. Partial loss. A marine insurer is liable upon a par- tial loss, only for such proportion of the amount insured by him as the loss bears to the value of the Avhole interest of the insured in the property insured. Compare § 2756 (stating the measure of indemnity in case of fire insurance). Legislation § 2737. Enacted March 21, 1872; based on Field's Draft, N. T. Civ. Code, §1504. § 2738. Profits. Where profits are separately insured in a contract of marine insurance, the insured is entitled to recover, in case of loss, a proportion of such profits equivalent to the proportion which the value of the property lost bears to the value of the Avhole. Valuation applied to profits: See post, § 2740. Legislation § 2738. Enacted March 21, 1872; based on Field's Draft, N. y. Civ. Code, § 1505. § 2739. , Valuation apportioned. In ease of a valued policy of marine insurance on freightage or cargo, if a part only of the subject is exposed to risk, the A'aluation applies only in proportion to such part. Legislation § 2739. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1506; 3 Kent's Com., p. 275. § 2740. Valuation applied to profits. When profits are valued and insured by a contract of marine insurance, a loss of them is conclusively presumed ^rom a loss of the property out of which they were expected to arise, and the valuation fixes their amount. Profits: See § 2738, ante. Legislation § 2740. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1507. §2741. Estimating loss under an open policy. In estimat- ing a loss under an open policy of marine insurance, the fol- loAving 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 Avhich add to its perma- nent value, or which are necessary to prepare it for the voyage insured; § 2745 CIVIL CODE. 704 2. The value of cargo is its actual cost to the insured, when laden on board, or where that cost cannot be ascertained, its market value at the time and place of lading, adding the charges incurred in purchasing and placing if on board, but Avithout reference to any losses incurred in. raising money for its purchase, or to any drawback on its exportation, or to the fluctuations of the market at the port of destination, or to expenses incurred on the way or on arrival ; 3. The value of freightage is the gross freightage, exclusive of primage, without reference to the cost of earning it ; and, 4. The cost of insurance is in each case to be added to the value thus estimated. Partial loss of ship: Post, § 2746. . . Legislation § 2741. Enacted March 21, 1872; based on Field's Draft, X. Y. Civ. Code, § 1508; .3 Kent's Com., pp. 335, 336. § 2742. Arrival of thing- damaged. If cargo insured against partial loss arrives at the port of destination in a damaged con- dition, the loss of the insured is deemed to be the same pro- portion 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. Legislation § 2742. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1509; 3 Kent's Com., p. 336. § 2743. Labor and expenses. A marine insurer is liable for all the expense attendant upon a loss which forces the ship into port to be repaired ; and Avhere it is agreed that the in- sured may labor for the recovery of the property, the insurer is liable for the expense incurred thereby, such expense, in either case, being in addition to a total loss, if that afterwards occurs. Legislation § 2743. Enacted March 21, 1872; based on Field's Draft, X. Y. Civ. Code, § 1510; 3 Kent's Com., p. 339. §'2744. General average, A marine insurer is liable for a loss falling upon the insured, through a contribution in respect to the thing insured, required to be made by him towards d, general average loss called for by a peril insured against. General average, generally: Ante, §§ 2148, 2152 et seq. General average, liability for: See ante, § 2711. Legislation § 2744. Enacted March 21, 1872; based on Field's Draft, X. Y. Civ. Code, § 1511. § 2745. Contribution. Where a person insured by a con- tract of marine insurance has a demand against others for contribution, he may claim the whole loss from' the insurer, subrogating him to his own right to contribution. But no such claim can be made upon the inpnrer after the separation of the 705 FIRE INSURANCE. § 2754 interests liable to contribution, nor Avhen the insured, having the right and opportunity to enforce contribution from others, has neglected or waived the exercise of that right. [Amend- ment approved 1874; Code Amdts. 1873-74, p. 259.] Sulirogation of insurer: Ante, § 2724. Legislation § 2745. 1. Enacted March 21. 1872 (based on Field's Draft, N. Y. Civ. Code, § 1512), the first sentence then constituting the section. 2. Amended by Code Amdts. 1873-74, p. 259. § 2746. One third new for old. In the case of a partial loss of a ship or its equipments, the old materials are to be applied towards payment for the new, and whether the ship is new or old, a mariiie insurer is liable for only two thirds of the remain- ing cost of the repairs, except that he must pay for anchors and cannon in full, and for sheathing-metal at a depreciation of only two and one half per cent for each month that it has been fastened to the ship. Sale of wrecked or damaged vessels: See Pol. Code, § 2507. Legislation § 2746. Enacted March 21. 1872; based on Field's Draft. N. Y. Civ. Code, § 1513. CHAPTER III. Fire Insurance. § 2752. False representation. [Eepealed.] § 2753. Alteration increasing risk. § 2754. Alteration not increasing risk. § 2755. Acts of the insured. § 2756. Measure of indemnity. § 2757. Value of interest in policy of insurance. How may be fixed. Total or partial loss. § 2752. False representation. [Repealed 1874; Code Amdts. 1873-74, p. 259.] Legislation § 2752. 1. Enacted March 21, 1872. 2. Eepealed by Code Amdts. 1873-74, p. 259. §2753. Alteration increasing* risk. An alteration in the use or condition of a thing insured from that to M^hich it is limited by the policy, made without the consent of the insurer, by means within the control of the insured, and increasing the risk, entitles an insurer to rescind a contract of fire insurance. Legislation § 2753. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 1515; Angell on Insurance, p. 206. § 2754. Alteration not increasing- risk. An alteration in the use or condition of a thing insured from that to which it is limited by the policy, which does not increase the risk, does not affect a contract of fire insurance. Civ. Code — 45 § 2757 CIVIL CODE. 706 Legislation § 2754. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 1516. § 2755. Acts of the insured. A contract of fire insurance is not affected by any act of the insured subsequent to the execu- tion of the policy, which does not violate its provisions, even though it increases the risk and is the cause of a loss. Legislation § 2755. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1517. § 2756. Measure of indemnity. If there is no valuation in the policy, the measure of indemnity in an insurance against fire is the expense it would be to the insured at the time of the commencement of the fire to replace the thing lost or in- jured in the condition in which it was at the time of the injury ; but the effect of a valuation in a policy of fire insurance is the same as in a policv of marine insurance. [Amendment ap- proved 1909; Stats."'l909, p. 914.] Valued policy in marine insurance: See ante, § 2736. Legislation § 2756. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1518), and then read: "If there is no valu- ation in the policy, the measure of indemnity in an insurance against fire is the expense, at the time that the loss is payable, of replacing the thing lost or injured in the condition in which it was at the time of the injury; but the effect of a valuation in a policy of fire insurance is the same as in a policy of marine insurance." 2. Amended by Stats. 1909, p. 914. § 2757. Value of interest in policy of insurance. Kow may be fixed. Total or partial loss. AVhcnever the insured desires to have a valuation named in his policy, insuring any building or structure against fire, he may require such building or structure to be examined by the insurer and the value of the insured's interest therein shall l)e thereupon fixed by the par- ties. The cost of such examination shall be paid for by the insured. A clause shall be inserted in such policy stating sub- stantially that the value of the insured 's interest in such build- ing or structure has been thus fixed. In the absence of any change increasing the risk Avithout the consent of the insurer or of fraud on the part of the insured, then in case of a total loss under such policy, the whole amount so insured upon the insured's interest in such building or structure, as stated in the policy upon which the insurers have received a premium, shall be paid, and in case of a partial loss the full amount of the partial loss shall be so paid, and in case there are tAvo or more policies covering the insured's interest therein, each policy shall contribute pro rata to the payment of such whole or partial loss. But in no case shall the insurer be required to pay more than the amount thus stated in such policy. This 707 LIFE AND HEALTH INSURANCE. § 2764 iSection shall not prevent the parties from stipulating in such policies concerning the repairing, rebuilding or replacing buildings or structures wholly or partially damaged or destroyed. Legislation § 2757. Added by Stats. 1901, p. 572. CHAPTER IV. Life and Health Insurance. § 2762. Insurance upon life, when payable. § 2763. Insurable interest. § 2764. Assignee, etc., of life policy need have no interest. § 2765. Notice of transfer. § 2766. Measure of indemnity. § 2762. Insurance upon life, when payable. 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 contingently on the continuance or determination of life. Mutual life, health, and accident insurance corporations: See ante, §§437 et seq.; post, Appendix, tit. "Insurance." Fraternal societies not insurance companies: See ante, § 451. Legislation § 2762. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1519. § 2763. Insurable interest. Every person has an insurable interest in the life and health : 1. Of himself; 2. Of any j^erson on whom he depends Avholly or in part for education 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 performance ; and, 4. Of any person upon whose life any estate or interest vested in him depends. Insurable interest, generally: Ante, §§ 2546 et seq. Legislation § 2763. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code. § 1520. § 2764. Assignee, etc., of life policy need have no interest. A policy of insurance upon life or health may pass by transfer, will, or succession to any person, whether he has an insurable interest or not, and such person may recover upon it Avhatever the insured might have recovered. Compare § 2553, ante. Legislation § 2764. Enacted March 21, 1872; based ou Field's Draft, N. Y. Civ. Code. § 1521. § 2774 CIVIL CODE. 70S § 2765. Notice of transfer. Notice to an insurer of a trans- fer or bequest thereof is not necessary to preserve the validity of a policy of insurance upon life or health, unless thereby expressly required. Legislation § 2765. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 1522; Angell on Insurance, p. 413. § 2766. Measure of indemnity. Unless the interest of a per- son insured is suseeptilile of exact pecuniary measurement, the measure of indemnity under a policy of insurance upon life or health is the sum fixed in the policy. Act relating to life, health, accident, and annuity or endowment in- surance: See post, Appendix, tit. "Insurance." Legislation § 2766. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 1523. TITLE XII. Indemnity. § 2772. Indemnity, what. § 2773. Indemnity for a future wrongful act void. § 2774. Indemnity for a past wrongful act valid. § 2775. Indemnity extends to acts of agents. § 2776. Indemnity to several. § 2777. Person indemnifying liable jointly or severally with person indemnified. § 2778. Rules for interpreting agreement of indemnity. § 2779. Wlien person indemnifying is a surety. § 2780. Bail, what. § 2781. How regulated. § 2772. Indemnity, what. Indemnity is a contract by which one engages to save another from a legal consequence of the conduct of one of the parties, or of some other person. Legislation § 2772. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, ? 1524. §2773. Indemnity for a future wrongful act void. An agreement to indemnify a person against an act thereafter to be done, is void, if the act be knoAvn by such person at the time of doing it to be unlawful. [Amendment approved 1874 ; Code Amdts. 1873-74, p. 259.] Legislation § 2773. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1525), and then read: "An agreement to in- demnify a person against an act thereafter to be done is void, if the act is known bv such person, at the time of doing it, to be wrongful.'" 2. Amended by Code Amdts. 1873-74, p. 259. § 2774. Indemnity for a past wrongful act valid. An agree- ment to indemnify a person against an act already done, is 2767. [New.] Disposition by Beneficiary of Interest Uncier Policy of Life Insurance. The beneficiary under a policy of life insurance, providing for the payment of the proceeds thereof in periOuical instalimente, may be restrained from disposing of or incumbering his intere.st in any such installment, prior to the date when it shall become due and payable by the insurer, by a condition or stipulation in the policy. (Ib effect 90 days from and after .Vpril 27. 1917. Stats. 1917, Chap. 698.) Civ. Code, 1917. 709 INDEMNITY. § 2778 valid, even though the act was known to Lc wrongful, unless it was a felony. Legislation § 2774. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, §1526. § 2775. Indemnity extends to acts of agents. An agree- ment to indemnify against the acts of a certain person, applies not only to his acts and their consequences, but also to those of his agents. Legislation § 2775. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1527. § 2776. Indemnity to several. An agreement to indemnify several persons applies to each, unless a contrary intention appears. Legislation § 2776. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1528. § 2777. Person indemnifying- liable jointly or severally with person indemnified. One who indemnifies another against an act to be done by the latter, is liable jointly with the person indemnified, and separately, to every person injured by such act. Legislation § 2777. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1529. § 2778. Rules for interpreting agreement of indemnity. In the interpretation of a contract of indemnity, the following rules are to be applied, unless a contrary intention appears : 1. Upoii an indemnity against liability, expressly, or in other equivalent terms, the person indemnified is entitled to recover upon becoming liable ; 2. Upon an indemnity against claims, or demands, or dam- ages, or costs, expressly, or in other equivalent terms, the per- son indemnified is not entitled to recover without payment thereof; 3. An indemnity against claims, or demands, or liability,^ expressly, or in other equivalent terms, embraces the costs of defense against such claims, demands, or liability incurred in good faith, and in the exercise of a reasonable discretion ; 4. The person 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 defenses, if he chooses to do so ; 5. If, after request, the person indemnifying neglects to de- fend the person indemnified, a recovery against the latter suf- fered by him in good faith, is conclusive in his favor against the former ; § 2781 CIVIL CODE. 710 6. If the person indemnifying, whether he is a principal or a surety in the agreement, has not reasonable notice of the action or proceeding against the person indemnified, or is not allowed to control its defense, judgment against the latter is only presumptive evidence against the former ; 7. A stipulation that a judgment against the person in- demnified shall be conclusive upon the person indemnifying, is inapplicable if he had a good defense upon the merits, which by want of ordinary care he failed to establish in the action. Legislation § 2778. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1530. § 2779. When person indemnifying' is a surety. Where one, at the request of another, engages to answer in damages, whether liquidated or unliquidated, for any violation of duty on the part of the latter, he is entitled to be reimbursed in the same manner as a surety, for whatever he may pay. Legislation § 2779. Enacted March 21, 1872; based on Field's Draft, K y. Civ. Code, § 1531. §2780. Bail, what. Upon those contracts of indemnity which are taken in legal proceedings as security for the per- formance of an obligation imposed or declared by the tribunals, and known as undertakings or recognizances the sureties are called bail. Legislation § 2780. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1532. 2. Repeal by Stats. 1901, p. 416; unconstitutioual. See note, § 4, ante. § 2781. How regulated. The obligations of bail are gov- erned by the statutes specially applicable thereto. Legislation § 2781. 1. Enacted March 21. 1872; based on Field's Draft, jST. Y. Civ. Code, § 1533. 2. Repeal by Stats. 1901, ]>. 416; unconstitutional. See note. § 4, ante. 711 GUARANTY. DEFINITION AND CREATION OP, § 2793 TITLE XIII. Guaranty. Chapter I. Guarauty in General. Articles I-VI. §§ 2787-2825. II. Suretyship. Articles I-V. §§ 2831-2866. CHAPTER I. Guaranty in General. Article I. Definition of Guaranty. §§ 2787, 2788. 11. Creation of Guaranty. §§ 2792-2795. III. Interpretation of Guaranty. §§ 2799-2802. IV. Liability of Guarantors. §§ 2806-2810. V. Continuing Guaranty. §§ 2814, 2815. VI. Exoneration of Guarantors. §§ 2819-2825. AETICLE I. Definition of Guaranty. § 2787. Guaranty, what. § 278'8. Knowledge of principal not necessary to creation of guaranty. § 2787. Guaranty, what. A guaranty is a promise to answer for the deht, default, or miscarriage of another person. Legislation § 2787. Enacted March 21, 1872; based on Field's Draft, N. Y. Ciy. Code, § 1534. §2788. Knowledge of principal not necessary to creation of guaranty. A person may become guarantor even without the knowhxlge or consent of the principal. Legislation § 2788. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1535. AETICLE II. Creation of Guaranty. § 2792. Necessity of a consideration. § 2793. Guaranty to be in writing, etc. § 2794. Engagement to answer for obligation of another, when deemed original. § 2795. Acceptance of guaranty. § 2792. Necessity of a consideration. Where a guaranty is entered into at the same time with the original obligation, or with the acceptance of the latter by the guarantee, and forms with that obligation a part of the consideration to him, no other consideration need exist. In all other cases there must be a consideration disti-nct from that of the original obligation. Legislation § 2792. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1536. § 2793. Guaranty to be in writing, etc. Except as pre- scribed by the next section, a guaranty must be in writing, and § 2795 CIVIL CODE, 712 signed by the guarantor; but the writing need not exjjress a consideration. Iiegislation § 2793. Enacted Mareli 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 1537. § 2794. Engagement to answer for obligation of another, when deemed original. A promise to answer for the obliga- tion of another, in any of the following eases, is deemed an original obligation of the promisor, and need not be in writing : 1. Where the promise is made by one who has received prop- erty of another upon an undertaking to apply it pursuant to such promise ; or by one Avho has received a discharge from an obligation in whole or in part, in consideration of such promise ; 2. Where the creditor parts Avith value, or enters into an obligation, in consideration of the obligation in respect to which the promise is made, in terms or under circumstances such as to render the party making the promise the principal debtor, and the person in Avhose 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 receiv- ing 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 from a levy, or his person from imprisonment under an execu- tion on a judgment obtained upon the antecedent obligation ; or upon a consideration beneficial to the promisor, whether moving from either party to the antecedent obligation, or from another person ; 4. Where a factor undertakes, for a commission, to sell mer- chandise and guaranty [guarantee] the sale; 5. Where the holder of an instrument for the payment of money, upon which a third person is or may become liable to him, transfers it in payment of a precedent debt of his own, or for a new consideration, and in connection Avith such trans- fer enters into a promise respecting such instrument. Guaranty, necessity of writing: See ante, § 1624:. Legislation § 2794. Enacted March 21. 1872; based on Field's Draft, X. y. Civ. Code, § 153S. § 2795. Acceptance of guaranty. A mere offer to guaranty [guarantee] is not binding, until notice of its acceptance is communicated by the guarantee to the guarantor; but an abso- lute guaranty is binding upon the guarantor without notice of acceptance. Absolute gTiaranty: See post, § 2806. Legislation § 2795. Enacted March 21, 1872; based on Field's Draft. X. Y. Civ. Code. § 1539. 713 INTERPRETATION OP GUARANTY. § 2806 ARTICLE III. Interpretation of Guaranty. § 2799. Guaranty of incomplete contract. § 2800. Guaranty that an obligation is good or collectable. § 2801. Recovery upon such guaranty. § 2802. Guarantor's liability upon such guaranty. § 2799. Guaranty of incomplete contract. In a guaranty of a contract, the terms of Avhich are not then settled, it is im- plied that its terms shall be such as will not expose the guar- antor 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. Legislation § 2799. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1540. § 2800. Guaranty that an obligation is good or collectable. A guaranty to the effect that an obligation is good, or is col- lectable, imports that the debtor is solvent, and that the de- mand is collectable by the usual legal proceedings, if taken with reasonable diligence. Legislation § 2800. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1541. § 2801. Recovery upon such g"uaranty. A guaranty, such as is mentioned in the last section, is not discharged by an omission to take proceedings upon the principal debt, or upon any collateral security for its payment, if no part of the debt could have been collected thereby. Legislation § 2801. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1542. § 2802. Guarantor's liability upon such g'uaranty. In the cases mentioned in section two thousand eight hundred, the removal of the principal from the state, leaving no property therein from which the obligation might be satisfied, is equiva- lent to the insolvency of the principal in its effect upon the rights and obligations of the guarantor. Legislation § 2802. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1543. ARTICLE IV. Liability of Guarantors. § 2806. Guaranty, how construed. § 2807. Liability upon guaranty of payment or performance. § 2808. Liability upon guaranty of a conditional obligation. § 2809. Obligation of guarantor cannot exceed that of the principal. § 2810. Guarantor not liable on an illegal contract. § 2806. Guaranty, how construed. A guaranty is to be deemed unconditional unless its terms import some condition precedent to the liability of the guarantor. § 2815 CIVIL CODE, 714 Legislation § 2806. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1544. § 2807. Liability upon guaranty of payment or perform- ance. A guarantor of payment or performance is liahle to the guarantee immediately upon the default of the principal, and without demand or notice. Legislation § 2807. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1545. § 2808. Liability upon guaranty of a conditional obligation. Where one guarantees a conditional obligation, his liability is commensurate with that of the principal, and he is not entitled to notice of the default of the principal, unless he is unable, by the exercise of reasonal)le diligence, to acquire information of such default, and the creditor has actual notice thereof. Legislation § 2808. Enacted March '21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1546. § 2809. Obligation of guarantor cannot exceed that of the principal. The obligation of a guarantor must be neither larger in amount nor in other respects more burdensome than that of the principal ; and if in its terms it exceeds it, it is reducible in proportion to the principal obligation. Legislation § 2809. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1547. § 2810. Guarantor not liable on an illegal contract. A guarantor is not liable if the contract of the principal is un- lawful ; but he is liable notwithstanding any mere personal disability of the principal, though the disability be such as to make the contract void against the principal. Legislation § 2810. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1548. AETICLE V. Continuing Guaranty. § 2814. Continuing guaranty, what. § 2815. Revocation. § 2814. Continuing' guaranty, what. A guaranty relating to a future liability of the principal, under successive trans- actions, which either continue his liability or from time to time renew it after it has been satisfied, is called a continuing guaranty. Legislation § 2814. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 1549. §2815. Revocation. A continuing guaranty may be re- voked at any time by the guarantor, in respect to future trans- 715 EXONERATION OF GUARANTORS. § 2822 actions, unless there is a continuing consideration as to such transactions which he does not renounce. Legislation § 2815. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1550. § 2819 § 2820 § 2821 § 2822 § 2823 § 2824 § 2825 AETICLE VI. Exoneration of Guarantors. What dealings with debtor exonerate guarantor. Void promises. Rescission of alteration. Part performance. Delay of creditor does not discharge guarantor. Guarantor indemnified by the debtor, not exonerated. Discharge of principal by act of law does not discharge guar- antor. ■ § 2819. What dealings with debtor exonerate guarantor. A guarantor is exonerated, except so far as he may be indemni- fied by the principal, if by any act of the creditor, without the consent of the guarantor, the original obligation of the prin- cipal is altered in any respect, or the remedies or rights of the- creditor against the principal, in respect thereto, in any way impaired or suspended. Liability of guarantor: See ante, §§ 2806 et seq. Rights of creditor where security given: See post, § 2854. Forbearance will not discharge: Post, § 2823. Neglect or refusal to sue after request will discharge: Post, § 2845. Discharge of surety by alteration of principal's contract: Post, § 2821. Legislation § 2819. Enacted March 21, 1872; based on Field's Draft, N. y. Civ. Code, § 1551. § 2820. Void promises. A pT'omise by a creditor, Avhich for any cause is void, or voidable by him at his option, does not alter the obligation or suspend or impair the remedy, within the meaning of the last section. Legislation § 2820. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1552. § 2821. Rescission of alteration. The rescission of an agree- ment altering the original ol)ligation of a debtor, or impairing the remedy of a creditor, does not restore the liability of a guarantor who has been exonerated by such agreement. Legislation § 2821. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1553. § 2822. Part performance. The acceptance, by a creditor, of anything in partial satisfaction of an obligation, reduces the obligation of a guarantor thereof, is [in] the same measure as that of the principal, but does not otherwise aifect it. § 2831 CIVIL CODE. 716 Part performance of obligation, expressly accepted by creditor, in writing, extinguishes obligation of debtor, and therefore that of surety: Ante, §§ 1523, 1524. Part performance, effect of: See ante, §§ 1477, 1486, 1524. Legislation § 2822. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1554. § 2823. Delay of creditor does not discharge guarantor. Mere delay on the part of a creditor to proceed against the principal, or to enforce any other remedy, does not exonerate a gnarantor. Notice to creditor to sue: See post, § 2845. Legislation § 2823. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1555. § 2824. Guarantor indemnified by the debtor, not ex- onerated. A gnarantor, Avho has been indemnified by the principal, is liable to the creditor to the extent of the indem- nity, notwithstanding that the creditor, withont the assent of the guarantor, may have modified the contract or released the principal. See ante. § 2819, and § 2794, subd. 1. Legislation § 2824. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1556. § 2825. Discharge of principal by act of law does not dis- charge guarantor. A gnarantor is not exonerated by the dis- charge of his principal by operation of law, Avithout the intervention or omission of the creditor. Legislation § 2825. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1557. CHAPTER II. Suretyship. Article I. Who are Sureties. §§ 2831, 2832. n. Liabilitv of Sureties. §§ 2836-2840. m. Eights of Sureties. §§ 2844-2850. TV. Eights of Creditors. § 2854. V. Letter of credit. §§ 2858-2866. AETICLE I. Who are Sureties. § 2831. Surety, what. § 2832. Apparent principal may show that he is surety. §2831. Surety, what. A surety is one Avho at the request of another, and for the purpose of securing to him a benefit, becomes responsible for the performance by the latter of some act in favor of a third person, or hypothecates property as security therefor. 717 WHO ARE SURETIES. LIABILITY OF SURETIES. § 2839 Legislation § 2831. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1558. § 2832. Apparent principal may show that he is surety. One who appears to l)c 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 Avho have acted on the faith of his apparent character of principal. Legislation § 2832. Enacted March 21, 1872; based on Field's Draft,. N. Y. Civ. Code, § 1559. AETICLE II. Liability of Sureties. § 2836. Limit of surety's obligation. § 2837. Rules of interpretation. § 2838. Judgment against surety does not alter the relation. § 2839. Surety exonerated by performance or offer of performance. § 2840. Surety discharged by certain acts of the creditor. §2836. Limit of surety's obligation. A surety cannot be held beyond the express terms of his contract, and if such con- tract prescribes a penalty for its breach, he cannot in any case be liable for more than the penalty. Principal bound when surety bound: See Code Civ. Proc, § 1912. Liability of guarantors: See ante, §§ 2807, 2808. Legislation § 2836. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1560. § 2837. Rules of interpretation. In interpreting the terms of a contract of suretyship, the same rules are to be observed as in the case of other contracts. Legislation § 2837. Enacted March 21, 1872; based on Field's Draft, JSr. Y. Civ. Code, § 1561. § 2838. Judgment against surety does not alter the relation. Notwithstanding the recovery of judgment by a creditor against a surety, the latter still occupies the relation of surety. Conclusiveness of judgment against sureties: See Code Civ. Proc, § 1055. Legislation § 2838. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1562. § 2839. Surety exonerated by performance or offer of per- formance. Performance of the principal obligation, or an offer of such performance, duly made as provided in this code, exonerates a surety. [Amendment approved 1874; Code Amdts. 1873-74, p. 260.] Offer of performance: Ante, §§ 1485-1505. Legislation § 2839. 1. Enacted March 21, 1872 (based on Field's Draft N Y Civ. Code, § 1563), and then read: "Performance of the principal obligation, or an offer of such performance, duly made, § 2846 CIVIL CODE, 718 whether by the principal or by another person, exonerates a surety." 2. Amended by Code Amdts/l873-74, p. 260. § 2840. Surety discharged by certain acts of the creditor. A surety is exonerated — 1. In like manner with a guarantor ; 2. To the extent to which he is prejudiced by any act of the creditor which would naturally prove injurious to the remedies of the surety or inconsistent with his rights, or which lessens his security ; or, , 3. To the extent to which he is prejudiced by an omission of the creditor to do anything, when required by the surety, which it is his duty to do. Subd. 1. Ante, § 2S19. Subd. 3. Post, § 2S4.5. Legislation § 28i0. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1564. ARTICLE ni. Rights of Sureties. § 2844. Surety has rights of guarantor. § 2845. Surety may require the creditor to proceed against the prin- cipal. § 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. § 2S50. The property of principal to be taken first. § 2844. Surety has rights of guarantor. A surety has all the rights of a guarantor, v.hetlier he become personally responsible or not. See ante, §§ 2808-2810. Legislation § 2844. Enacted March 21, 1872; based on Field's Draft, X. Y. Civ. Code, § 1565. § 2845. Surety may require the creditor to proceed against the principal. A surety may require his creditor to proceed against the principal, or to pursue any other remedy in his 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 he is thereby prejudiced. Mere delay by creditor to pursue principal does not dischaxgej surety: Ante, § 2823. See also, ante, § 2S40, subd. 1. Legislation § 2845. Enacted March 21, 1872; based on Field's Draft, X. Y. Civ. Code, § 1566. § 2846. Surety may compel principal to perform obliga- tions, v^hen due. A surety may compel his principal to per- form the obligation Avhen due. 719 RIGHTS OF SURETIES AND OF CREDITORS. § 2854 Action under this section provided for: Code Civ. Proc, § 1650. Substitute for the equitable action. § 2845, ante, may be consid- ered as containing another substitute for the equitable action. Legislation § 2846. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1567. § 2847. A principal bound to reimburse his surety. If a surety satisfies the principal obligation, or any part thereof, whether Avith or without legal proceedings, the principal is bound to reimburse what he has disbursed, including necessary costs and expenses ; but the surety has no claim for reimburse- ment against other persons, though they may have been benefited by his act, except as prescribed by the next section. Legislation § 2847. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1568. §2848. The surety acquires the right of the creditor. A surety, upon satisfying the obligation of the principal, is en- titled to enforce every remedy which the creditor then has against the principal to the extent of reimbursing what he has expended, and also to require all his co-sureties to contribute thereto, without regard to the order of time in which they became such. Subrogation of surety paying: See Code Civ. Proc, §§ 709, 1059. Legislation § 2848. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1569. §2849. Surety entitled to benefit of securities held by creditor. A surety is entitled to the benefit of every security for the performance of the principal obligation held by the creditor, or by a co-surety at the time of entering into the con- tract of suretyship, or acquired by him afterwards, whether the surety was aware of the security or not. Legislation § 2849. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1570. § 2850. The property of principal to be taken first. AVhen- ever property of a surety is hypothecated with property of the principal, the surety is entitled .to have the property of the principal first applied to the discharge of the obligation. Legislation § 2850. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1571. ARTICLE IV. Rights of Creditors. § 2854. Creditor entitled to benefit of securities held by surety. §2854. Creditor entitled to benefit of securities held by surety. A creditor is entitled to the benefit of everything iphich a surety has received from the debtor by way of so- § 2862 . CIVIL CODE. 720 curity for the performance of the obligation, and may, upon the maturity of the obligation, compel the application of such security to its satisfaction. Legislation § 2854. Enacted March 21, 1872; bascl on Field's Draft, jST. Y. Civ. Code, § 1572. AETICLE V. Letter of Credit. § 2858. Letter of credit, what. § 2859. 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 guaranty. § 2865. When notice to the writer necessary. § 2866. The credit given must agree with the terms of the letter. § 2858. Letter of credit, what. A letter of credit is a writ- ten instrument, addressed by one person to another, requesting the latter to give credit to the person in whose favor it is drawn. Legislation § 2858. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1573. § 2859. How addressed. A letter of credit may be ad- dressed to several persons in succession. Legislation § 2859. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1574. § 2860. Liability of the writer. The writer of a letter of credit is, upon the default of the debtor, liable to those who gave credit in compliance with its terms. Legislation § 2860. Enacted March 21, 1872; based on Field's Draft, K Y. Civ. Code, § 1575. § 2861. Letters of credit either general or special. A letter of credit is either general or special. When the request for credit in a letter is addressed to specified persons by name or description, the letter is special. All other letters of credit are general. Credit to correspond with terms of letter: See post, § 2866. Legislation § 2861. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1576. § 2862. Nature of general letter of credit. A general let- ter of credit gives any person to Avhom it may be shown au- thority 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. Legislation § 2862. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1577. 721 LETTERS OF CREDIT. § 2866 § 2863. Extent of general letter of credit. Several persons may successively give credit upon a general letter. Legislation § 2863. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 1578. § 2864. A letter of credit may be a continuing' guaranty. If the parties to a letter of credit appear, by its terms, to contem- plate 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 pay- ments made by the debtor, but is to be deemed a continuing guaranty. Legislation § 2864. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1579. § 2865. When notice to the writer necessary. 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. Legislation § 2865. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1580. § 2866. The credit given must agree with the terms of the letter. If a letter of credit prescribes the persons by whom, or the mode in which, the credit is to be given, or the term of credit, or limits the amount thereof, the writer is not bound except for transactions which, in these respects, conform strictly to the terms of the letter. Legislation § 2866. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1581. Civ. Code — 46 i 2874 CIVIL CODE. 722 TITLE XIV. Lien. Chapter I. Liens in General. Articles I-VI. §§ 2872-2913. II. Mortgage. Articles I-III. §§ 2920-2973. III. Pledge. §§ 29S6-3011. IV. Bottomry. §§ 3017-3029. V. Eespondentia. §§3036-3040. VI. Other Liens. §§ 3046-3065. VII. Stoppage in Transit. §§ 3076-3080. CHAPTER I. Liens in General. Article I. Definition of Liens. §§2872-2877. n. Creation of Liens. §§ 2881-2884. in. Effect of Liens. §§ 2888-2892. IV. Priority of Liens. §§2897-2899. V. Eedemiption from Liens. §§ 2903-2905. VI. Extinction of Liens. §§ 2909-2913. AETICLE L Definition of Liens. § 2872. Lien, what. § 2873. Liens, general or special. § 2874. General lien, what. § 2875. Special lien, what. § 2876. Prior liens. § 2877. Contracts subject to provisions of this chapter. § 2872. Lien, what. A Fieii is a charge imposed in some mode other than by a transfer in trnst upon specific property by which it is made security for the performance of an act. [Amendment approved 1878; Code Amdts. 1877-78, p. 88.] Compare Code Civ. Proc, § 1180. Unclaimed property, rights in relation to; See Pol. Code, §§ 3152 et seq. Legislation § 2872. 1. Enacted March 21, 1872 (based on Field's Draft, K Y. Civ. Code, § 1582), and then read: "A lien is a charge im- posed upon specific property, by which it is made security for the per- formance of an act." 2. Amended by Code Amdts. 1877-78, p. 88. § 2873. Liens, general or special. Liens are either general or special. Legislation § 2873. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 1583. § 2874. General lien, what. A general lien is one which the holder thereof is entitled to enforce as a security for the per- 723 LIENS IN GENERAL. CREATION OF. § 2882 formance of all the obligations, or all of a particular class of obligations, which exist in his favor against the owner of the property. Factors. Usage of trade usually gives factors a general lien, which is established in this state by § 3053, post. Banker: Post, § 3054. Master of ship: Post, § 3055. Mate and seamen: Post, § 3056. Lien for services: See post, § 3051. Legislation § 2874. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1584. § 2875. Special lien, what. A special lien is one which the holder thereof can enforce only as security for the perform- ance of a particular act or obligation, and of such obligations as may be incidental thereto. . Rights where prior lien discharged: See post, § 2876. Legislation § 2875. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1585. § 2876. Prior liens. Where the holder of a special lien is compelled to satisfy a prior lien for his own protection, he may enforce payment of the amount so paid by him, as a part of the claim for which his own lien exists. Legislation § 2876. Enacted March 21, 1872, § 2877. Contracts subject to provisions of this chapter. Contracts of mortgage, pledge, bottomry, or respondentia, are subject to all the provisions of this chapter. Legislation § 2877. Enacted March 21, 1872; based ou Field's Draft, . N. Y. Civ. Code, § 1586. AETICLE II. Creation of Liens. § 2881. Lien, how created. § 2882. No lien for cMm not due. § 2883. Lien on future interest. § 2884. Lien may be created by contract. § 2881. Lien, how created. A lien is created : 1. By contract of the parties ; or, 2. By operation of law. Legislation § 2881. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1587. § 2882. No lien for claim not due. No lien arises by mere operation of law until the time at which the act to be secured thereby ought to be performed. Legislation § 2882. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1588. § 2891 CIVIL CODE. 724 § 2883. Lien on future interest. An agreement may be made to create a lien upon property not yet acquired by the party agreeing to give the lien, or not yet in existence. In such case the lien agreed for attaches from the time Avhen the party agreeing to give it acquires an interest in the thing, to the extent of such interest. Legislation § 2883. Enacted Marcli 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1589. § 2884. Lien may be created by contract. A lien may be created by contract, to take immediate effect, as security for the performance of obligations not then in existence. Legislation § 2884. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1590. ARTICLE III. Effect of Liens. § 2888. Lien, or contract for lien, transfers no title. § 2889. Certain contracts void. § 2890. Creation of lien does not imply personal obligation. § 2891. Extent of lien. § 2892. Holder of lien not entitled to compensation. § 2888. Lien, or contract for lien, transfers no title. Not- withstanding an agreement to the contrary, a lien, or a contract for a lien, transfers no title to the property subject to the lien. Mortgage gives no right to possession: Post, § 2927. Legislation § 2888. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1591. § 2889. Certain contracts void. All contracts for the for- feiture of property subject to a lien, in satisfaction of the obligation secured thereby, and all contracts in restraint of the right of redemption from a lien, are void. Legislation § 2889. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1592. § 2890. Creation of lien does not imply personal obligation. The creation of a lien does not of itself imply that any person is bound to perform the act for which the lien is a security. See post, §§2909, 2928, 3000. Legislation § 2890. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1593. § 2891. Extent of lien. The existence of a lien upon prop- erty does not of itself entitle the person in whose favor it ex- ists to a lien upon the same property for the performance of any other obligation than that which the lien originally secured. Legislation § 2891. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 1591. 725 PRIORITY OP LIENS. § 2899 § 2892. Holder of lien not entitled to compensation. One Avho holds property by virtue of a lien thereon, is not entitled to compensation from the owner thereof for any tronble or expense Avhieh he incurs respecting it, except to the same extent as a borrower, under sections eighteen hundred and- ninety-two and eighteen hundred and ninety-three. Legislation § '2892. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1595. ARTICLE IV. Priority of Liens. § 2897. Priority of liens. § 2898. Priority of mortgage for price. § 2899. Order of resort to different funds. § 2897. Priority of liens. Other things being equal, differ- ent liens upon the same property have priority according to the time of their creation, except in cases of bottomry and re- spondentia'. Priority between 'bottomry liens: See post, § 3029. Respondentia is subject to law on liens: See ante, § 2877. Legislation § 2897. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1597. § 2898. Priority of mortg^age for price. A mortgage given for the price of real property, at the time of its conveyance, has priority over all other liens created against the purchaser, subject to the operation of the recording laws. Legislation § 2898. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1598. § 2899. Order of resort to different funds. Where one has a lien upon several things, and other persons have subordinate liens upon, or interests in, some but not all of the same things, the person having the prior lien, if he can do so without risk of loss to himself, or of injustice to other persons, must resort to the property in the following order, on the demand of any party interested : 1. To the things ur>on Avhich 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 liens upon the same thing; and, 4. When several things are within one of the foregoing classes, and subject to the same number of liens, resort must be had— (1.) To the tilings Avhich have not been transferred since the prior lien was created; (2.) To the things whicli liavo been so transferred without a valuable consideration ; and, § 2905 CIVIL CODE. 726 (3.) To the things which have been so transferred for a valuable consideration in the inverse order of the transfer. Marshaling of assets: See post, § 3433. Legislation § 2899. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1599. AETICLE V. Bedemptlon from Liens. § 2903. Right to redeem. Subrogation. § 2904. Eights of inferior lienor. § 2905. Eedemjition from lien, how made. § 2903. Right to redeem. Subrogation. Every person, hav- ing an interest in property subject to a lien, has the right to redeem it from the lien, at any time after the claim is due, and before his right of redemption is foreclosed, and, by such redemption, becomes subrogated to all the benefits of the lien, as against all owners of other interests in the property, except in so far as he was bound to make such redemption for their benefit. [Amendment approved 1905; Stats. 1905, p. 617.] • Redemption from execution sale: See Code Civ. Proc, §§ 346, 347, 701 et seq. Pledgor's right of redemption may be foreclosed: Post, § 3011. Legislation § 2903. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1600), and then ended with the words "re- demption is foreclosed." 2. Amendment by Stats. 1901, p. 417; unconstitutional. See note, § 4^ ^: ante. 3. Amended by Stats. 1905, p. 617; the code commissioner saying, "The change consists in the addition of the clause after the word 'fore- closed.' The design of the amendment is to state and apply the rule of equity in such cases, it being feared that the declaration of a similar rule in § 2904, and its omission in this section might lead to doubt." § 2904. Rights of inferior lienor. One who has a lien in- ferior to another, upon the same 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 satisfy- ing the claim secured thereby. Legislation § 2904. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 1601. § 2905. Redemption from lien, how made. Redemption from a lien is made by performing, or offering to perform, the act for the performance of which it is a security, and paying, or offering to pay, the damages, if any, to which the holder of the lien is entitled for delay. Legislation § 2905. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1602. 727 EXTINCTION OF LIENS. § 2913 AETICLE VI. Extinction of Liens. § 2909. Lien deemed accessory to the act whose performance it secures. § 2910. Extinction by sale or conversion. § 2911. Lien extinguished by lapse of time under statute of limitations. § 2912. Apportionment of lien. § 2913. When restoration extinguishes lien. § 2909. Lien deemed accessory to the act whose performance it secures. A lien is to be deemed accessory to the act for the performance of which it is a security, whether any person is bound for such performance or not, and is extinguishable in like manner with any other accessory obligation. Assignment of debt; See § 2936, post. Legislation § 2909. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1603. § 2910. Extinction by sale or conversion. The sale of any property on which there is a lien, in satisfaction of the claim secured thereby, or in case of personal proj^erty, its wrongful conversion by the person holding the lien, extinguishes the lien thereon. Legislation § 2910. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1604. § 2911. Lien extinguished by lapse of time under statute of limitations. A lien is extinguished by the lapse of the time Avithin which, under the provisions of the Code of Civil Pro- cedure, an action can be brought upon the principal obligation. Limitation of actions: See Code Civ. Proc, §§ 335-347. Legislation § 2911. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1605. § 2912. Apportionment of lien. 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. Legislation § 2912. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1606. § 2913. When restoration extinguishes lien. .The voluntary restoration of property to its owner by the holder of a lien thereon dependent upon possession extinguishes the lien as to such property, unless otherwise agreed by the parties, and ex- tinguishes it, notwithstanding any such agreement, as to cred- itors of the owner and persons, subsequently acquiring a title to the property, or a lien thereon, in good faith, and for value. [Amendment approved 1905; Stats. 1905, p. 617.] Legislation § 2913. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1607), and then read: "The voluntary restora- § 2920 CIVIL CODE. 728 tion of property to its owner by the holder of a lien thereon, dependent upon possession, extinguishes the lien as to such property, unless other- wise agreed by the parties, and extinguishes it, notwithstanding any such agreement, as to creditors of the owner and persons acquiring a title to the property, or a lien thereon, in good faith, and for a good consideration, unless such restoration is made to the owner as a mere employee of the holder of the lien, or for a merely transient purpose." 2. Amended by Code Amdts. 1873-74, p. 260, and then had the words "a good consideration" instead of "value," at end of section. 3. Amendment by Stats. 1901, p. 417; unconstitutional. See note, § 4, ante. 4. Amended by Stats. 1905, p. fill, substituting "value" for "a good consideration," at end of section. CHAPTER 11. Mortgage, Article I. Mortgages in General. §§2920-2942. IT. Mortgages of Eeal Property. §§ 2947-2952. III. Mortgages of Personal Property. §§ 2955-2973. AETICLE I. Mortgages in General. § 2920. Mortgage, what. § 2921. Property adversely held may be mortgaged. § 2922. To be in writing. § 2923. Lien of a mortgage, when special. § 2924. Transfer of interest, when a mortgage and when a pledge. § 2925. Transfer made subject to defeasance may be proved. § 2926. Mortgage, on what a lien. § 2927. Mortgage does not entitle mortgagee to possession. § 2928. Mortgage not a personal obligation. § 2929. Waste. § 2930. Subsequently acquired title inures to mortgagee. § 2931. Foreclosure. § 2932. Power of sale. § 2933. Power of attorney to execute. §2934. Recording assignment of mortgage. § 2935. Recording assignment of mortgage not notice to mortgagor. § 2936. Mortgage passes by assignment of debt. § 2937. Time allowed for filing mortgage for record. [Repealed.] § 2938. Mortgage, how discharged. § 2939. Same. § 2939i. Satisfying mortgages by foreign executors. § 2940. Certificate and record of discharge. § 2941. Duty of mortgagee on satisfaction of mortgage. § 2942. Provisions of this chapter do not affect bottomry or respondentia. § 2920. Mortgage, what. IMortgage is a contract by Avhich specific property is hypothecated for the performance of an act, withont the necessity of a change of possession. Note. The code substitutes, instead of the actual possession previ- ously requisite on mortgages of personalty, the recording provisions of §§ 2957, 2959, 2962, 2963, 2965. 2966. 2924. Transfer of Interest; When a Mortgage and When a Pledge. Every transfer of an Interest in property other than in trust, made only as a security for the performance of another act, is to be deemed a mortgage, except when in the case of personal property it is accompanied by actual change of posses- sion, in which case it is to be deemed a pledge. [Where, by a mortgage hereafter created, of any estate In real property, other than an estate at wMI or for years, less than two, o-r In any transfer in trust hereafter made of a like estate to secure the performance of an obligation, a power of sale is conferred upon a mortgagee, trustee, or any other person, to be exercised after a breach of the obligation for which such mort- gage or transfer Is a security, such power shall not be exercised (except where such mortgage or transfer Is made pursuant to an order, judgment, or decree of a court of record, or to secure the payment of bonds or other evidences of Indebtedness authorized or permitted to be issued by the commissioner of corporations, or is made by a public utility subject to the provisions of the public utilities act,) until, (a) the mortgagee or beneficiary shall first record, in the office of the recorder of the county wherein the mortgaged or trust property or some part thereof is situated, a notice of such breach and of his election to sell or cause to be sold such property to satisfy the obligation.- (b) not less than three months shall thereafter elapse; and (c) the mortgagee, trustee or other person authorized to make the sale shall give notice of the time and place thereof, in the manner and for a time not less than that required by law for sales of real prop- erty upon execution.! (In effect '.)() days from and after April 27, 1917. Stat.<. 1!I17, Chap. 204.) Civ. Code, 1917. 729 MORTGAGES IN GENERAL. § 2925 Actual transfer of possession of personalty would change it into a pledge: See post, § 2924. Legislation § 2920. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1608. § 2921. Property adversely held may be mortgaged. A mortgage may be created upon property held advei'sely to the mortgagor. Note. This provision is a logical sequence of § 2947, post, and § 1047, ante. Legislation § 2921. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1614. - § 2922. To be in writing-. A mortgage can be created, re- newed, or extended, only by writing, executed with the for- malities required in the case of a grant of real property. Mortgage, form of: Post, § 2948. Legislation § 2922. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1623. § 2923. Lien of a mortgage, when special. The lien of a mortgage is special, unless otherwise expressly agreed, and is independent of possession. Special lien, definition: See ante, § 2875. Legislation § 2923. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1609. § 2924. Transfer of interest, when a mortg^age and when a pledg'e. 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 Avhen in the case of personal property it is accompanied by actual change of pos- session, in which case it is to be deemed a pledge. [Amend- ment approved 1874; Code Amdts. 1873-74, p. 260.] Deed absolute on its face, when a mortgage: See post, §§ 2925, 2950. Legislation § 2924. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1610), but did not then have the words "other than in trust" in first line. 2. Amended by Code Amdts. 1873-74, p. 260. § 2925. Transfer made subject to defeasance may be proved. The fact that a transfer Avas made sul)joct to defeasance on a condition, may, for the purpose of shoAving such transfer to be a mortgage, be proved (except as against a subsequent pur- chaser or encumbrancer for value and Avithout notice), though the fact does not appear by the terms of the instrument. Deed absolute on its face, a mortgage: See ante, § 2924, and post, § 2950. Recording defeasance: See post, § 2950. Legislation § 2925. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code. § 1612. § 2931 CIVIL CODE. 730 § 2926. Mortgage, on what a lien. A mortgage is a lien upon everything that would pass by a grant of the property. Fixtures, generally: See ante, § 660. Growing crops: Post, § 2972. Legislation § 2926. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1617. § 2927. Mortgage does not entitle mortgagee to possession. A mortgage does not entitle the mortgagee to the possession of the property, unless authorized by the express terms of the mortgage ; but after the execution of the mortgage the mort- gagor may agree to such change of possession without a new consideration. Mortgagee's possession: Ante, §§ 2920, 2923. Legislation § 2927. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1620. § 2928. Mortgage not a personal obligation. A mortgage does not bind the mortgagor personally to perform the act for the performance of which it is a security, unless there is an express covenant therein to that effect. Legislation § 2928. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1624. § 2929. Waste. No person whose interest is subject to the lien of a mortgage may do any act which will substantially impair the mortgagee's security. Damages are recoverable by purchaser at sale, for injuries by ten- ant: See Code Civ. Proc, § 746. Legislation § 2929. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1622. § 2930. Subsequently acquired title inures to mortgagee. Title acquired by the mortgagor subsequent to the execution of the mortgage, inures to the mortgagee as security for the debt in like manner as if acquired before the execution. [Amend- ment approved 1874; Code Amdts. 1873-74, p. 260.] Subsequently acquired title passes by grant: Ante, § 1106. Legislation § 2930. 1. Enacted March 21, 1872, and then contained a second sentence, reading, "The priority of application of such subse- quently acquired title to successive mortgagees is determined by the existing rules of priority, when no title is subsequently acquired." 2. Amended by Code Amdts. 1873-74, p. 260. § 2931. Foreclosure, A mortgagee may foreclose the right of redemption of the mortgagor in the manner prescribed by the Code of Civil Procedure. Foreclosure of mortgage. Place of trial: Code Civ. Proc, § 392. Re- ceiver may be appointed: Id., § 564. Proceeding's in actions for fore- closure: Id., § 726. Remedy exclusive: Id., § 726. Surplus, how disposed 731 MORTGAGES IN GENERAL. § 2936 of: Ir., § 727. Installment loans: Id., § 728. Actions against estates: Id., § 1500. Legislation § 2931. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1621. § 2932. Power of sale. A power of sale may be conferred . by a mortgage upon the mortgagee or any other person, to be exercised after a breach of the obligation for which the mort- gage is a security. Power of sale is a part of the security, and passes by assignment of the debt: Ante, § 858. Legislation § 2932. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1615. § 2933. Power of attorney to execute. A power of attorney to execute a mortgage must he. in writing, subscribed, acknowl- edged, or proved, certified, and recorded in like manner as powers of attorney for grants of real property. Authorization, generally: See ante, § 2309. Legislation § 2933. Enacted March 21, 1872. § 2934. Recording' assignment of mortgage. An assignment of a mortgage may be recorded in like manner as a mortgage, and such record operates as notice to all persons subsequently deriving title to the mortgage from the assignor. [Amend- ment approved 1874; Code Amdts. 1873-74, p. 261.] Legislation § 2934. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1629), and then read: "An assignment of a mortgage may be recorded in like manner with a mortgage, but in a separate book, and such record operates as notice to all persons subse- quently deriving title to the mortgage from the assignor." 2. Amended by Code Amdts. 1873-74, p. 261. § 2935. Recording- assignment of mortgage not notice to mortgagor. When the mortgage is executed as security for money due, or to become due, on a promissory note, bond, or other instrument, designated in the mortgage, the record of the assignment of the mortgage 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. [Amend- ment approved 1874; Code Amdts. 1873-74, p. 261.] Legislation § 2935. 1. Enacted March 21, 1872, and then read: "The record of the assignment of a mortgage is not of itself notice to a mortgagor, his heirs or personal representatives, so as to invalidate anj^ payment made by them, or either of them, to the mortgagee." 2. Amended by Code Amdts. 1873-74, p. 261. § 2936. Mortgage passes by assignment of debt. The as- signment of a debt secured l)y mortgage carries with it the security. § 2940 CIVIL CODE. 732 Legislation § 2936, 1. Enacted March 21, 1872. 2. Amendment bj- Stats. 1901, p. 417; unconstitutional. See note, § 4, ante. § 2937. Time allowed for filing mortgage for record, [Re- pealed 1874; Code Amdts. 1873-74, p.- 261.] Legislation § 2937. 1. Enacted March 21, 1872. 2, Eepealed by Code Amdts.^ 1873-74, p. 261. § 2938, Mortgage, how discharged, A recorded mortgage may be discharged by an entry in the margin of the record thereof, signed by the mortgagee, or his personal representative or assignee, acknowledging the satisfaction of the mortgage in the presence of the recorder, who must certify the acknowledg- ment in form substantially as follows: "Signed and acknowl- edged before me, this — — day of , in the year . A B, Recorder. ' ' Legislation § 2938. Enacted March 21, 1872; based on Conveyance Act 1850, Stats. 1S50, p. 249, § 37. § 2939. Same. A recorded mortgage, if not discharged as provided in the preceding section, must be discharged upon the record by the officer having custody thereof, on the presentation to him of a certificate signed by the mortgagee, his personal representatives or assigns, acknowledged or proved and certified as prescribed by the chapter on "record- ing transfers," stating that the mortgage has been paid, sat- isfied, or discharged. Legislation § 2939. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1630; Conveyance Act 1850, Stats. 1850, p. 249, § 38. § 29391/2- Satisfying mortgages by foreign executors. For- eign executors, administrators and guardians may satisfy mort- gages upon the records of any county in this state, upon producing and recording in the office of the county recorder of the county in which such mortgage is recorded, a duly certified and authenticated copy of their letters testamentary, or of administration or of guardianship, and which certificate or authentication shall also recite that said letters have not been revoked. [Amendment approved 1913; Stats. 1913, p. 216.] Legislation § 29391/2. 1. Added by Stats. 1895, p. 28, and then read: "Foreign executors and administrators may satisf}' mortgages upon the records of any county in this state, upon producing and recording in the otJfice of the county recorder of the county in which such mortgage is recorded, a duly certified and authenticated copy of their letters testamentary or of administration, and which certificate shall also recite that said letters have not been revoked." 2. Amended by Stats. 1913, p. 216. § 2940. Certificate and record of discharge, A certificate of the discharge of a mortgage, and tlio proof oi' acknowledgment 733 MORTGAGES IN GENERAL. § 2942 thereof, must be recorded at length, and a reference made in the record to the book and page where the mortgage is re- corded, and in the minute of the discharge made upon the record of the mortgage to the book and page where the dis- charge is recorded. Legislation § 2940. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1631; Conveyance Act 1850, Stats. 1850, p. 249, § 39. §2941. Duty of mortgagee on satisfaction of mortgage. When any mortgage has been satisfied, the mortgagee or his assignee must immediately, on the demand of the mortgagor, execute, acknowledge, and deliver to him a certificate of the discharge thereof, so as to entitle it to be recorded, or he must enter satisfaction, or cause satisfaction of such mortgage to be entered of record ; and any mortgagee, or assignee of sucb mortgagee, who refuses to execute, acknowledge, and deliver to the mortgagor the certificate of discharge, or to enter satis- faction, or cause satisfaction of the mortgage to be entered, as provided in this chapter, is liable to the mortgagor, or his grantee or heirs, for all damages Avhich he or they may sustain by reason of such refusal, and shall also forfeit to him or them the sum of one hundred dollars. [Amendment approved 1880 ; Code Amdts. 1880, p. 11.] Legislation § 2941. 1. Enacted March 21, 1872, and then read: "When any mortgage has been satisfied, the mortgagee or his assignee must immediately, on demand of the mortgagor, enter satisfaction or cause satisfaction of such mortgage to be entered of record; and any mort- gagee or assignee of such mortgagee who neglects or refuses to enter satisfaction of such mortgage, as is provided in this chapter, is liable in damages to such mortgagor, or his grantee or heirs, in the sum of one hundred dollars, to be recovered in a civil action before any court of competent .iurisdiction." 2. Amended by Code Amdts. 1873-74, p. 261, to read: "When any mortgage has been satisfied, the mortgagee or his assignee must im- mediately, on demand of the mortgagor, execute and deliver to him a certificate of the discharge thereof, and must, at the expense of the mortgagor, acknowledge the execution thereof so as to entitle it to be recorded, or he must enter satisfaction, or cause satisfaction of such mortgage to be entered of record; and any mortgagee, or assignee of such mortgage, who refuses to execute and deliver to the mortgagor the certificate of discharge, and to aclcnowledge the execution thereof, or to enter satisfaction or cause satisfaction to be entered of the mort- gage, as provided in this chapter, is liable to the mortgagor, or his grantee or heirs, for all damages, which he or they may sustain by reason of such refusal, and also forfeit to him or them the sum of one hundred dollars." 3. Amended by Code Amdts. 1880, p. 11. § 2942. Provisions of this chapter do not affect bottomry or respondentia. Contracts of bottomry or respondentia, al- though in the nature of mortgages, are not affected by any of the provisions of this chapter. § 2950 CIVIL CODE. 734 Bottomry: See post, §§ 3017 et seq. Respondentia: See post, §§ 3036 et seq. Legislation § 2942. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1611. ARTICLE II. Mortgages of Real Property. § 2947. What real property may be mortgaged. § 2948. Form of mortgage. § 2949. What must be recorded as a mortgage. [Repealed.] § 2950. Defeasance, to affect grant absolute on its face, must be recorded. § 2951. By whom paid after property passes by succession or will. [Repealed.] § 2952. May be recorded. § 2947. What real property may be mortgaged. Any inter- est in real property which is capable of being transferred may be mortgaged. Possibilities: See ante, § 1045. Property held adversely may be mortgaged: Ante, § 2921. Legislation § 2947. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1613. § 2948. Form of mortgage. A mortgage of real property may be made in substantially the following form : This mortgage, made tlie day of , in the year , by A B, of , mortgagor, to C D. of mortgagee, wit- nesseth : That the mortgagor mortgages to the mortgagee [here describe the property], as security for the payment to him of dollars, on [or before] the day of , in the year , Avith interest thereon [or as security for the payment of an obligation, describing it, etc.] A. B. Deed absolute in form construed as a mortgage: See ante, §§ 2924, 2925, and post, § 2950. Form of mortgage of personal property: See post, § 2956. Legislation § 2948. Enacted March 21, 1872. § 2949. What must be recorded as a mortgage. [Repealed 1874; Code Amdts. 1873-74, p. 2(i2.] Legislation § 2949. 1. Enacted March 21, 1872. 2. Repealed by Code Amdts. 1873-74, p. 262. § 2950. Defeasance, to affect grant absolute on its face, must be recorded. AYhen a grant of real property purports to be an absolute conveyance, but is intended to be defeasible on the performance of certain conditions, such grant is not defeated or affected as against any person other than the grantee or his heirs or devisees, or persons having actual notice, -unless an instrument of defeasance, duly executed and acknowledged, 735 MORTGAGES OF PERSONAL PROPERTY. § 2955 shall have been recorded in the office of the county recorder of the county where the property is situated. Unrecorded instrument valid between parties: See ante, § 1217, Deed absolute on its face, when a mortgage: See ante, §§ 2924, 2925. Legislation § 2950. Enacted March 21, 1872. § 2951. By whom paid after property passes by succession or will. [Repealed 1874; Code Amdts. 1873-74, p. 262.] Legislation § 2951. 1. Enacted March 21, 1872. 2. Repealed by Code Amdts. 1873-74, p. 262. § 2952. May be recorded. Mortgages of real property may be acknowledged or proved, certified and recorded, in like manner and with like effect, as grants thereof. [Amendment approved 1874; Code Amdts. 1873-74, p. 262.] Recording of instruments: See ante, §§ 1169-1172, 1213-1217. Fees for acknowledgment and recording: Pol. Code, §§ 798, 4131, 4141. Mortgages recorded in separate set of books: Ante, § 1171. Legislation § 2952. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1626), then having at end of section a clause reading, "but they must be recorded in books kept for mortgages of real property exclusively." 2. Amended by Code Amdts. 1873-74, p. 262. ARTICLE III. Mortgage of Personal Property. § 2955. What personal property may be mortgaged. § 2956. Form of personal mortgage. § 2957. When void as to third persons. § 2958. Mortgage of ships, when void as to third persons. § 2959. Mortgage of personal property, where recorded. § 2960. Property in transit, where to be recorded. § 2961. Property of a common carrier, where to be recorded. § 2962. Recorded in different places. § 2963. Personal mortgage may be recorded. § 2964. Certified copies may be recorded, when. § 2965. Mortgaged personal property, effect of removal. § 2966. May be taken by mortgagee as a pledge, when. § 2967. How foreclosed. § 2968. Mortgage property may be levied upon. § 2969. Limitations on right of levy. § 2970. Distribution of proceeds of sale under process. § 2971. Certain sections not applicable to mortgage of certain ships. § 2972. Continuance of lien of mortgage on crops. • § 2973. Validity of certain mortgages. § 2955. What personal property may be mortgaged. Mort- gages niay be made upon all growing crops, including grapes and fruit, and upon any and all kinds of personal property, ex- cept the f olloAving : 1. Personal property not capable of manual delivery ; 2. Articles of wearing-apparel and personal adornment ; § 2955 CIVIL CODE. 736 3. The stock in trade of a merchant. [Amendment approved 1909; Stats. 1909, p. 34.] Further chattel mortgage is larceny: See Pen. Code, § 538. Legislation § 2955. 1. Enacted March 21. 1872, and read: "Mortgages may be made upon: 1. Locomotives, engines, and the other rolling- stock of a railroa'd; 2. Steamboat machinery and machinery used by machinists, foundrymen, and mechanics; 3. Steam engines and boilers; 4. Mining machinery; .5. Printing presses and material; 6. Professional libraries; 7. Instruments of a surgeon, physician, or dentist; 8. Uphol- stery and furniture used in hotels or boarding-houses, when mortgaged to secure the purchase-money of the articles mortgaged; 9. Growing crops; 10. Vessels of more than five tons burden." 2. Amended by Code Amdts. 1875-76, p. 79, to read: "Mortgages may be made upon, first, locomotives, engines, and other rolling-stock of a railroad; second, steamboat machinery, the machinery used by ma- chinists, foundrymen and mechanics; third, steam engines and boilers; fourth, mining machinery; fifth, printing presses and material; sixth, professional libraries; seventh, instruments of a surgeon, physician, or dentist; eighth, upholstery and furniture used in hotels, lodging or boarding-houses, when mortgaged to secure the purchase-money of the articles mortgaged; ninth, growing crops; tenth, vessels of more than five tons burthen; eleventh, instruments, negatives, furniture, and fix- tures of a photograph-gallery." 3. Amended by Code Amdts. 1877-78, p. 88. to read: "Mortgages may be made upon: One — Locomotives, engines, and other rolling-stock of a railroad. Two — Steamboat machinery, the machinery used by machin- ists, foundrymen, and mechanics. Three — Steam engines and boilers. Four — Mining machinery. Five — Printing presses and material. Six — Professional libraries. Seven — Instruments of a surveyor, physician, or dentist. Eight — Upholstery and furniture used in hotels, lodging or boarding houses, when mortgaged to secure the purchase-money of the articles mortgaged. Nine — Growing crops. Ten — Vessels of more than five tons burden. Eleven — Instruments, negatives, furniture, and fixtures of a photograph-gallery. Twelve — The machinery, casks, pipes, tubs, and utensils used in the manufacture of wine, fruit-brandy, and fruit-syrup, or sugar." 4. Amended by Stats. 1887, p. 5, to read: "Mortgages may be made upon: First — Locomotives, engines, and other stock of a railroad. Sec- ond — Steamboat machinery, the machinery u.sed by machinists, foun- drymen, and mechanics. Third — Steam engines and boilers. Fourth — Mining machinery. Fifth — Printing presses and material. Sixth — ■ Profes.sional libraries. Seventh — Instruments of surveyors, physicians, or dentists. Eighth — Upholstery and furniture used in hotels, lodging or hoarding houses, when mortgaged to secure the purchase-money of the articles mortgaged. Ninth — Growing crops. Tenth — Vessels of more than five tons burden. Eleventh — Instruments, negatives, furni- ture, and fixtures of a photograph-gallery. Twelfth — The machinery, casks, pipes, tubes, and utensils used in the manufacture or storage of wine, fruit-brandy, fruit-syrups, or sugar; also, wines, fruit-brandy, fruit-syrup, or sugar, with the cooperage in which the same is con- tained. Thirteenth — Pianos and organs." 5. Amended by Stats. 1893, p. 84, to read: "Mortgages may be made upon: First — Locomotives, engines, and other stock of a railroad. Second — Steamboat machinery, the machinery used by machinists, foun- drymen, and mechanics. Third — Steam engines and boilers. Fourth — Mining machinery. Fifth — Printing presses and material. Sixth — Pro- fessional libraries. Seventh — Instruments of surveyors, physicians, or 737 MORTGAGES OF PERSONAL PROPERTY. § 2955 dentists. Eighth — Uiiholstery and furniture used in hotels and lodging houses. Ninth — Oil-paintings, pictures, and works of art. Tenth — All growing crops, including grapes and fruit. Eleventh — Vessels of more than five tons burden. Twelfth — Instruments, negatives, furniture, and fixtures of a photograph-gallery. Thirteenth — The machinery, casks, pipes, tubes, and utensils used in the manufacture or storage of wine, fruit-brandy, fruit-syrups, or sugar; also wines, fruit-brandy, fruit-syrup, or sugar, with the cooperage in which the same is con- tained. Fourteenth — Pianos and organs. Fifteenth — Iron and steel safes. Sixteenth — ISTeat cattle, horses, mules, swine, and sheep, and the increase thereof." 6. Amended by Stats. 1895, p. 57, to read: "Mortgages may be made upon the following personal property, and none other: First — Locomo- tives, engines, and other rolling-stock of a railroad. Second — Steam- boat machinery, the machinery used by machinists, foundrymen, and mechanics. Third — Steam engines and boilers. Fourth — Mining ma- chinery. Fifth — Printing presses and material. Sixth — Professional libraries. Seventh — Instruments of surveyors, physicians, or dentists. Eighth — Upholstery, furniture, and household goods. Ninth — Oil-paint- ings, pictures, and works of art. Tenth — All growing crops, including grapes and fruit. Eleventh— -Vessels of more than five tons burden. Twelfth— Instruments, negatives, furniture, and fixtures of a photo- graph-gallery. Thirteenth — The machinery, casks, pipes, tubes, and utensils used in the manufacture or storage of wine, fruit-brandy, fruit- syrups, or sugar; also wines, fruit-brandy, fruit-syrup, or sugar, with the cooperage in which the same are contained. Fourteenth — Pianos and organs. Fifteenth — Iron and steel safes. Sixteenth — Neat cattle, horses, mules, swine, and sheep, and the increase thereof. Seventeenth — Harvesters, thrashing outfits, hay-presses, and farming implements. Eighteenth — Abstract systems, books, maps, papers, and slips of search- ers of records." 7. Amended by Stats. 1897, p. 95, (1) in subd. Second, changing "machinists, foundrymen, and mechanics" to "machinist, foundrymen and mechanics" (probably a typographical blunder) ; (2) in subd. Seventh, changing "or dentists" to "and dentists"; (3) in subd. Six- teenth, adding the word "goats"; (4) changing subd. Seventeenth to read, "Harvesters, thrashing outfits, hay-presses, wagons, farming im- plements, and the equipments of a livery-stable, including buggies, car- riages, harness, robes"; (5) adding subd. Nineteenth, reading, "Eaisins and dried fruits, ciired or in process of being cured; also, all boxes, fruit-graders, drying-trays, and fruit-ladders." 8. Amended by Stats. 1903, p. 78, (1) in subd. Second, restoring "machinist, foundrymen and mechanics" to "machinists, foundrymen, and mechanics"; (2) in subd. Sixteenth, omitting "Neat" before "cattle." 9. Amended by Stats. 1905, p. 36, (1) in subd. 16, adding the word "turkeys"; (2) adding subds. 20, 21, and 22, which read, "20. Bees and beehives, apiaries and apiary stock including frames, combs and ex- tractors, also honey at apiaries. 21. Machinery, tanks, stills, agita- tors, leaches, and apparatus used in producing and refining petroleum, asphaltum, fuel-oils, lubricating oils and greases. 22. The bedroom furniture, carpets, tables, stoves, ranges, cooking utensils and all fur- niture and equipments usually found in a hotel." 10. Amended by Stats. 1907, p. 886, (1) changing subd. 5 to read, "5. Printing presses and material; all type-setting machines, their material and accessories"; (2) adding subds. 23 and 24, reading, "23. All machinery used in the sawing and production of lumber, or the Civ. Code — 47 § 2959 CTViL CODE. 738 manufacture of lumber into lumber products, also wagons, logging- trucks, donkey-engines and cables, chains and stretchers, and all tools and appliances used in the manufacture of lumber. 24. All furniture, fixtures, bars and appurtenances of saloons." 11. Amended by Stats. 1909, p. 34. § 2956. Form of personal mortgage. A mortgage of per- sonal property may be made in substantially the folloAving form : This mortgage, made the day of , in the year , by A B, of , by occupation a , mortgagor, to C D, of , by occupation a , mortgagee, witnesseth : That the mortgagor mortgages to the mortgagee [here de- scribe the property], as security for the payment to him of dollars, on [or before] the day of , in the year , with interest thereon [or, as security for the payment of a note or obligation, describing it, etc.] A B. Form of mortgage of real property: See ante, § 2948. Legislation § 2956. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, Schedule. § 2957. When void as to third persons. A mortgage of per- sonal property is void as against creditors of the mortgagor and subsequent purchasers and encumbrancers 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. Recording: See post, §§ 2959-2965. Acknowledging chattel mortgage: See post, § 2963. Legislation § 2957. Enacted March 21, 1872. § 2958. Mortgage of ships, when void as to third persons. A mortgage of any vessel or part of any vessel under the flag of the United States is void as against any person (other than the 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. Legislation § 2958. Enacted March 21, 1872. § 2959. Mortgage of personal property, where recorded. A mortgage of personal property must be recorded in the office of the county recorder of the county in which the mortgagor re- sides, if the mortgagor be a resident of this state, and it shall also be recorded in the county in which the property mortgaged 739 MORTGAGES OF PERSONAL PROPERTY. § 2964 is situated, or to Avliich it may be removed. [Amendment ap- proved 1907; Stats. 1907, p. 853.] Duty of recorder: See Pol. Code, §§ 4234 et seq. Record in different places: See post, § 2962. Legislation § 2959. 1. Enacted March 21, 1872, and then read: "A mortgage of personal property must be recorded in the oiEce 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." 2. Amendment by Stats. 1901, p. 417; unconstitutional. See note, § 4, ante. 3, Amended by Stats. 1907, p. 853. § 2960. Property in transit, where to be recorded. For the purposes of this article property in transit from the possession of the mortgagee to the county of the residence of the mort- gagor, or to a location for use, is, during a reasonable time for such transportation, to be taken as situated in the county in which the mortgagor resides, or Avhere it is intended to be used. See post, § 2965, subd. 1. Legislation § 2960. Enacted March 21, 1872. § 2961. Property of a common carrier, where to be recorded. For a like purpose personal property used in conducting the business of a common carrier is to be taken as situated in the county in which the principal office or place of business of the carrier is located. Legislation § 2961. Enacted March 21, 1872. § 2962. Recorded in different places. A single mortgage of personal property, embracing several things of such character or so situated that by the provisions of this article separate mortgages upon 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. County where property is situated: See ante, § 2959. Legislation § 2962. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1637. § 2963. Personal mortgage may be recorded. 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. Manner and effect of recording: See ante, §§ 1169-1171, 1213-1217. Manner of acknowledging: See ante, § 2957. Legislation § 2963. Enacted March 21, 1872. § 2964. Certified copies may be recorded, when. A certified copy of a mortgage of personal property once recorded may § 2967 CIVIL CODE. 740 be recorded in any other comity, and when so recorded the record thereof has the same force and effect as though it Avas of the original mortgage. Legislation § 2964. Enacted March 21, 1872. § 2965. Mortgfaged personal property, effect of removal. When personal property mortgaged is thereafter removed from the county in which it is situated, the lien of the mortgage shall not be affected thereby for thirty days after such removal ; but, after the expiration of such thirty days, the property mortgaged is exempted from the operation of the mortgage, except as between the parties thereto, until either : 1. The mortgagee causes the mortgage to be recorded in the county to which the property has been removed; or 2. The mortgagee takes possession of the property as pre- scribed in the next section. [Amendment approved 1909 ; Stats. 1909, p. 44.] Removal of property from mortgaged premises, when larceny: See Penal Code, § 502io. Legislation § 2965. 1. Enacted March 21, 1872, and then read: "When personal property mortgaged is thereafter by the mortgagor removed from the country in which it is situated it is, except as between the parties to the mortgage, exempted from the operation thereof, unless either: 1. The mortgagee, within thirty days after such removal, causes the mortgage to be recorded in the county to which the property has been removed; or, 2. The mortgagee, within thirty days after such removal, takes possession of the property, as prescribed in the next section." 2. Amended by Stats. 1909, p. 44. § 2966. May be taken by mortgagee as a pledge, when. If the mortgagor voluntarily removes or permits the removal of the mortgaged property from the county in which it was sit- uated at the time it Avas mortgaged, the mortgagee may take possession and dispose of the property as a pledge for the pay- ment of the de])t, though the debt is not due. Legislation § 2966. Enacted March 21, 1872. § 2967. How foreclosed. A mortgagee of personal prop- erty, when the debt to secure which the mortgage Avas exe- cuted becomes due, may foreclose the mortgagor's right of re- demption by a sale of the property, made in the manner and upon the notice prescribed by the title on ''pledge," or by proceedings under the Code of Civil Procedure. Sale of pledge: See post, §§ 3000 et seq. Actual notice required: See post, § 3002. Foreclosure: Code Civ. Proc, §§ 726-729. Legislation § 2967. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § IB33. 2970. Distribution of Proceeds of Sale Under Process. When the property f-s taken after payment or tender of deposit as provided for in section two thousand nine hundred sSy-nine 2. The balance, if any. in like manner as the [processl rWh:n'?he°' ^^'^:,""^- --"«- are applied in other cases [When the property is taken after presentation to the officer of the verified statement and bond mentioned in the prov°so fn section two thousand nine hundred sixty-nine and Is sold unde^ [1. To the satisfaction of the amount specified In the process including Interest and costs; ^nd process safes u^dtn*"!'^""!' " '"^' '" '"'" '""""«'• ^^ ^f^e P'-oceeds of sales under execution are applied in other cases.] (In effect 90 days from and after April 29. 1921. Stats. 1921, Chap. 87.7 Civ. Code, 1921 2969. Limitations on Right of Levy. Before the property is so taken, the officer must pay or tender to the mortagee the amount of the mortgage debt and interest, or must deposit the amount thereof with the county clerli or treasurer, payable to the order of the mortgagee [; provided, however, that when an attachment or execution creditor presents to the officer a verified statement that the mortgage is void or invaiid for reasons therein specifies and delivers to the officer a good and sufficient Indemnity bond in double the amount of the mortgage debt or double the value of the mortgaged property, as the officer may determine and require, the officer shall take the property, and, In the case of an execution, sell It In the manner provided by law. The bond shall be made to both the officer and the mort- gagee and shall Indemnify them and each of them for the taking of the property against loss, liability, damages, costs and coun- sel fees. Exceptions to the sufficiency of the sureties and their Justification may be had and taken in the same manner as upon an undertaking on attachment.] (In effect 90 days from and after April 29, 1921. Stats. 1921, Chap. 87.) Civ. Code, 1921. 741 MORTGAGES OF PERSONAL PROPERTY. § 2973 § 2968. Mortgage property may be levied upon. Personal property mortgaged may ))e taken under attachment or execu- tion issued at the suit of a creditor of the mortgagor. Legislation § 2968. 1. Enacted March 21, 1872. 2. Amendment by Stats. 1901, p. 417j unconstitutional. See note, § 4, ante. § 2969. Limitations on right of levy. Before the property is so taken, the officer must pay or tender to the mortgagee the amount of the mortgage debt and interest, or must deposit the amount thereof with the county clerk or treasurer, payable to the order of the mortgagee. Measure of special owner's damage for conversion: See post, § 3338. Legislation § 2969. 1. Enacted March 21, 1872. 2. Amendment by Stats. 1901, p. 418; unconstitutional. See note, § 4, ante. § 2970. Distribution of proceeds of sale under process. When the property thus taken is sold under process, the officer must apply the proceeds of the sale as follows : 1. To the repayment of the sum paid to the mortgagee, with interest from the date of such payment; and, 2. The balance, if any, in like manner as the proceeds of sales under execution are applied in other cases. Legislation § 2970. Enacted March 21, 1872. § 2971. Certain sections not applicable to mortgage of cer- tain ships. fSections tAvo thousand nine hundred and fifty- seven, two thousand nine hundred and fifty-nine, two thousand nine hundred and sixty, two thousand nine hundred and sixty- one, two thousand nine hundred and sixty-two, two thousand nine hundred and sixty-three, two thousand nine hundred and sixty-four, two thousand nine hundred and sixty-five, and two thousand nine hundred and sixty-six do not apply to any mort- gage of a ship or part of a ship under the flag of the United States. Legislation § 2971. Enacted March 21, 1872. § 2972. Continuance of lien of mortgage on crops. The lien of a mortgage on a growing crop continues on the crop after severance, whether remaining in its original state or converted into another product, so long as the same remains on the land of mortgagor. Legislation § 2972. Added by Code Amdts. 1877-78, p. 89. § 2973. Validity of certain mortgages. Mortgages of per- sonal property, other than that mentioned in section twenty- nine hundred and fifty-five, and mortgages not made in con- formity with the provisions of this article, are nevertheless § 2986 CIVIL CODE. 742 valid between the parties, their heirs, legatees, and personal representatives, and persons who, before parting with value, have actual notice thereof. Legislation § 2973. 1. Addition by Stats. 1901, p. 418; unconstitu- tutional. See note, § 4, ante. 2. Added by Stats. 1905, p. 617; the code commissioner saying, "This section merely declares the law already existing upon the subject. It is deemed proper to have the same expressed in the code." CHAPTER III. Pledge. § 2986. Pledge, what. § 2987. When contract is to be deemed a pledge. § 2988. Delivery essential to validity of pledge. § 2989. Increase of thing. § 2990. Lienor may pledge property to extent of his lien. § 2991. Eeal owner cannot defeat pledge of property transferred to ap- parent owner for the purpose of pledge. § 2992. Pledge-lender, what. § 2993. Pledge-holder, what. § 2994. When pledge-lender may withdraw property pledged. § 2995. Obligations of pledge-holder. § 2996. Pledge-holder must enforce rights of pledgee. § 2997. Obligation of pledgee and pledge-holder, for reward. § 2998. Gratuitous pledge-holder. § 2999. Debtor's misrepresentation of value of pledge. § 3000. When pledgee may sell. § 3001. Sale of pledged property. § 3002. Notice of sale to pledgor. § 3003. Waiver of notice of sale. § 3004. Waiver of demand. § 30O5. Sale of pledged property, manner of. § 3006. Pledgee's sale of securities. § 3007. Sale on the demand of the pledgor. § 3008. Surplus to be paid to pledgor. § 3009. Pledgee may retain all that can become due. § 3010. Pledgee or pledge-holder may purchase. § 3011. Pledgee may foreclose right of redemption. § 2986. Pledg'e, what. Pledge is a deposit of personal prop- erty by Avay of security for the performance of another act. Increase of property pledged: Post, § 2989. Note. Much difficulty has arisen in determining whether a certain transaction is a pledge or a chattel mortgage, the question generally being whether the title has passed or not. In this state, it has been seen, title never passes in case of property conveyed or deposited as security: Post, § 2888. And, also, whenever the possession of personal property is transferred as security only, it is to be treated as a pledge: Post, § 2987. And even a chattel mortgage, when the possession of the property mortgaged is transferred, becomes a pledge: Ante, § 2924, and post, § 2987. The question is therefore much simplified, possession be- ing the criterion. Legislation § 2986. Enacted March 21, 1872. 743 PLEDGES. § 2993 § 2987. When contract is to be deemed a pledge. Every contract by which the possession of personal property is trans- ferred, as security only, is to ])e deemed a pledge. Legislation § 2987. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1648. §2988. Delivery essential to validity of pledge. The lien of a pledge is dependent on possession, and no pledge is valid until the property pledged is delivered to the pledgee, or to a pledge-holder, as hereafter prescribed. Legislation § 2988. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1649. § 2989. Increase of thing. The increase of property pledged is pledged with the property. Legislation § 2989. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1650. § 2990. Lienor may pledge property to extent of his lien. One who has a lien upon property may pledge it to the extent of his lien. compare post, § 2991. Lienor's action for damages: See post, § 3338. Legislation § 2990. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1651. § 2991. Real owner cannot defeat pledge of property trans- ferred to apparent owner for the purpose of pledge. One who has alloAved another to assume the apparent ownership of prop- erty for the purpose of making any transfer of it, cannot set up his own title, to defeat a pledge of the property, made by the other, to a pledgee who received the property in good faith, in the ordinary course of business, and for value. Legislation § 2991. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1652. § 2992. Pledge-lender, what. Property may be pledged as security for the obligation of another person than the owner, and in so doing the owner has all the rights of a pledgor for himself, except as hereinafter stated. Legislation § 2992. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1653. § 2993. Pledge-holder, what. 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. Legislation § 2993. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1654. § 2999 CIVIL CODE. 744 § 2994. When pledge-lender may withdraw property pledged. One Avho pledges property as security for the obliga- tion of another, cannot withdraw the property pledged other- wise than as a pledgor for himself might, and if he receives from the debtor a consideration for the pledge he cannot with- draw it without his consent. Legislation § 2994. Enacted March 21, 1872; based on Field's Draft, N". Y. Civ. Code, § 1655. § 2995. Obligations of pledge-holder. A pledge-holder for reward cannot exonerate himself from his undertaking; and a gratuitous pledge-holder can do so only by giving reasonable notice to the pledgor and pledgee to appoint a new pledge- holder, and in case of their failure to agree, by depositing the property pledged with some impartial person, who will then be entitled to a reasonable compensation for his care of the same. Legislation § 2995. Enacted March 21, 1872; based on Field's Draft, N. y. Civ. Code, § 1656. §2996. Pledge-holder must enforce rights of pledgee. A pledge-holder must enforce all the rights of the pledgee, unless authorized by him to Avaive them. Legislation § 2996. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1657. § 2997. Obligation of pledgee and pledge-holder, for reward. A pledgee, or a pledge-holder for rcAvard, assumes the duties and liabilities of a depositary for reward. Depositary for reward: See ante, §§ 1845, 1852. Legislation § 2997. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 1658. §2998. Gratuitous pledge-holder. A gratuitous pledge- holder assumes the duties and liabilities of a gratuitous depositary. Gratuitous pledge-holder: See ante, §§ 1846, 1847. Legislation § 2998. Enacted March 21, 1872; based on Field's Draft, X. Y. Civ. Code, § 1659. §2999. Debtor's misrepresentation of value of pledge. where a debtor has obtained credit, or an extension of time, by a fraudulent misrepresentation of the value of property pledged by or for him, the creditor may demand a further pledge to correspond with the value represented; and in de- fault thereof may recover his debt immediately, though it be not actually due. Legislation § 2999. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1660. 745 • PLEDGES. § 3005 § 3000. When pledgee may sell. When performance of the act for which a pledge is given is due, in whole or in part, the pledgee may collect what is due to him by a sale of property pledged, subject to the rules and -exceptions hereinafter pre- scribed. Note. Another remedy is provided by § 3011, post; and sale is re- stricted in case of most clioses in action by § 3006, post. See also, ante, § 2890. Foreclosure of right of redemption: Post, § 3011. Legislation § 3000. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1661. § 3001. Sale of pledged property. Before property pledged can be sold, and after performance of the act for which it is security is due, the pledgee must demand performance thereof from the debtor, if the debtor can be found. [Amendment approved 1874; Code Amdts. 1873-74, p. 262.] Legislation § 3001. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1662. 2. Amended by Code Amdts. 1873-74, p. 262, (1) substituting "can" for "may" before "be sold," and (2) adding "if the debtor can be found," at end of section. § 3002. Notice of sale to pledgor. A pledgee must give actual notice to the pledgor of the time and place at which the property pledged will be sold, at such a reasonable time before the sale as will enable the pledgor to attend. Legislation § 3002. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1663. $ 3003. Waiver of notice of sale. Notice of sale may be waived bv a pledgor at any time; but is not waived by a mere waiver of demand of performance. Legislation § 3003. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1664. 5 3004-. Waiver of demand. TV dobtor or pledaror waives a demand of performance as a condition nrecedent to a sale of the nropertv nl edged, by a positive refusal to perform, after nerformance is due; but cannot waive it in any other manner except by contract. Legislation § 3004. Enacted March 21, 1872; based on Field's Draft, K Y. Civ. Code, § 166.5. 8 3005. Sale of pledged "oropertv, manner of. Tbe sale by nledgee. of property pledsred, must be made bv public auction, in tbe manner and upon the notice of sale of nersonal nropertv under execution. [Amendment approved 1909; Stats. 1909. p. 972.] Legislation 5 3005. 1. Enacted March 21. 1872 (based on Field's Draft, K Y. Cjv. Code, § 1666), and then read; "The sale by a pledged. § 3010 CIVIL CODE. ■ 746 of property pledged, must be made by public auction, in the manner and upon the notice to the public usual at the place of sale, in respect to auction sales of similar property j and must be for the highest obtainable price." 2. Amended by Stats. 1909, p. 972. §3006. Pledgee's sale of securities. A pledgee cannot sell any evidence of deht pledged to him, except the obligations of governments, states, or corporations ; but he may collect the same when due. Legislation § 3006. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1667. § 3007. Sale on the demand of the pledgor. AVhenever property pledged 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 such satisfaction, when due. Retaining proceeds: See post, § 3009. Legislation § 3007. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1668. § 3008. Surplus to be paid to pledgor. After a pledgee has lawfully sold property pledged, or otherwise collected its proceeds, he may deduct therefrom the amount due under the principal obligation, and the necessary expenses of sale and collection, and must pay the surplus to the pledgor, on demand. Legislation § 3008. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code. § 1669. § 3009. Pledgee maj' retain all that can become due. When property pledged is sold liy order of the pledgor before the claim of the pledgee is due, the latter may retain out of the proceeds all that can possibly become due under his claim until it becomes due. [Amendment approved 1874; Code Amdts. 1873-74, p. 262.] Legislation § 3009. 1. Enacted March 21, 1872 (based on Field's Draft,. N. Y. Civ. Code, § 1670), and then read: "When property pledged is sold before the claim of the pledgee is due, he may retain out of the proceeds all that can possibly become due under his claim, until it becomes due, with the proper rebate of interest." 2. Amended by Code Amdts. 1873-74, p. 262. § 3010. Pledgee or pledge-holder may purchase. AVheneA-er property pledged is sold at public auction, in the manner provided by section three thousand and five of this code, the pledgee or pledge-holder may purchase said property at such sale. [Amendment approved 1895 : Stats. 1895, p. 26.] Legislation § 3010. 1. Enacted March 21. 1872 (based on Field's Draft, N. Y. Civ. Code, § 1671), and then read: "A pledgee, or pledge- holder, cannot purchase the property pledged, except by direct deal- ing with the pledgor." 2. Amended by Stats. 1895, p. 26. 747 BOTTOMRY. § 3020 § 3011. Pledgee may foreclose right of redemption. In- stead of selling property pledged, as hereinbefore provided, a pledgee may foreclose the right of redemption by a judicial sale, under the direction of a competent court ; and in that case may be authorized by the court to purchase at the sale. Pawnbrokers: Pen. Code, §§ 338-343. Legislations 3011. Enacted Mareh 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1672. CHAPTER TV. Bottomry. § 3017. Bottomry, what. § 3018. Owner of ship may hypothecate. § 3019. When master may hypothecate ship. § 3020. Same. § 3021. When master may hypothecate freight-money. § 3022. Rate of interest. § 3023. Eights of lender, when no necessity for bottomry existed. § 3024. Stipulation for personal liability void. § 3025. When money loaned is to be repaid. § 3026, When bottomry loan becomes due. § 3027. Bottomry lien, how lost. § 3028. Preference of bottomry lien over other liens. § 3029. Priority of bottomry liens. § 3017. Bottomry, what. Bottomry is a contract by which a ship or its freightage is hypothecated as security for a loan, which is to be repaid only in case the ship survives a particular risk, voyage, or period. It is independent of possession: Post, § 3027. Insurance by owner: See ante, § 2660. Legislation § 3017. Enacted Mareh 21, 1872; based on Field's Draft, • N. Y. Civ. Code, § 1673. § 3018. Owner of ship may hypothecate. The owner of a ship may hypothecate it or its freightage, upon bottomry, for any lawful purpose, and at any time and place. Legislation § 3018. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1674. § 3019. When master may hypothecate ship. The master of a ship may hypothecnte it upon bottomry only for the pur- pose of procuring repairs or supplies which are necessary for accomplishing the objects of the voyage, or for securing the safety of the ship. Freightage, authority of master extends to: Post, § 3021. Legislation § 3019. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 167.5. §3020. Same. The mastor of a ship can hypothecate it upon bottomry only when he cannot otherwise relieve the § 3026 CIVIL CODE. 748 necessities of the ship, and is unable to reach adequate funds of the owner, or to obtain any upon the personal credit of the owner, and when previous communication with him is pre- cluded by the urgent necessity of the case. May sell ship and cargo: See ante, §§ 2377-2379. Iiegislation § 3020. Euacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1676. § 3021. When master may hypothecate freight-money. The master of a ship may hypothecate freightage upon bottomry, under the same circumstances as those which authorize an hypothecation of the ship by him. Legislation § 3021. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1677. § 3022. Rate of interest. Upon a contract of bottomry, the parties may laAvfully stipulate for a rate of interest higher than that allowed by the law upon other contracts. But a compe- tent court may reduce the rate stipulated when it appears unjustifiable and exorbitant. Legislation § 3022. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1678. § 3023. Rights of lender, v^hen no necessity for bottomry ex- isted. 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 diligence and in- quiry, the lender had reasonable grounds to believe, and did in good faith believe, in the existence of such circumstances. Legislation § 3023. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1679. § 3024. Stipulation for personal liability void. A stipula- tion in a contract of bottomry, imposing any liability for the loan independent of the maritime risks, is void. Legislation § 3024. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 1680. § 3025. When money loaned is to be repaid. In case of a total loss of the thing hypothecated, from a risk to which the loan was subject, the lender upon bottomry can recover noth- ing ; in case of a partial loss, he can recover only to the extent of the net value to the owner of the part sav^ed. Legislation § 3025. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1681. § 3026. When bottomry loan becomes due. Unless it is otherwise expressly agreed, a bottomry loan becomes due im- 749 RESPONDENTIA. § 3037 mediately upon the termination of the risk, although a term of credit is specified in the contract. Legislation § 3026. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1682. § 3027. Bottomry lien, how lost. A bottomry lien is inde- pendent of possession, and is lost by omission to enforce it within a reasonable time. Legislation § 3027. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1683. § 3028. Preference of bottomry lien over other liens. A bottomry lien, if created out of a real or apparent necessity, in good faith, is preferred to every other lien or claim upon the same thing, excepting only a lien for seamen's wages, a sub- sequent lien of material-men for supplies or repairs indis- pensable to the safety of the ship, and a subsequent lien for salvage. Seamen's wages: Ante, §§ 2048-2066. Legislation § 3028. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1684. § 3029. Priority of bottomry liens. Of two or more bot- tomry liens on the same subject, the latter in date has prefer- ence, if created out of necessity. Priority between bottomry liens: See ante, § 2897. Legislation § 3029. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1685. CHAPTER V. Respondentia. § 3036. Respondentia, what. § 3037. Respondentia by owner. § 3038. Respondentia by master. § 3039. Rate of interest. § 3040. Obligations of ship-owner. § 3036. Respondentia, what. Respondentia is a contract by which a cargo, or some part thereof, is hypothecated as secur- ity for a loan, the repayment of which is dependent on maritime risks. Legislation § 3036. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1686. § 3037. Respondentia by owner. The owner of cargo may hypothecate it upon respondentia, at any time and place, and for any lawful purpose. Legislation § 3037. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1687. § 3046 CIVIL CODE. 750 § 3038. Respondentia by master. The master of a ship may hypothecate its cargo upon respondentia only in a case in which he would be authorized to hypothecate the ship and freightage, but is unable to borrow sufficient 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. Master may sell cargo: Ante, § 2379. Legislation § 3038. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1688. § 3039. Rate of interest. The provisions of sections three thousand and twenty-two to three thousand and twenty-nine apply equally to loans on respondentia. Legislation § 3039. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 1689. § 3040. Obligations of ship-ow^ner. The owner of a ship is bound to repay to the owner of its cargo all which the latter is compelled to pay, under a contract of respondentia made by the master, in order to discharge its lien. Obligations of ship-owner: See ante, § 2385. Master personally responsible: Ante, § 2383. Legislation § 3040. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1690. CHAPTER VI. other Liens. § 3046. Lien of seller of real property. § 3047. When transfer of contract waives lien. § 3048. Extent of seller's lien. § 3049. Lien of seller of personal property. § 3050. Purchaser's lien on real property. § 3051. Lien on personal property for services thereon. § 3052. Lien-holder may sell property. Notice of sale. Proceeds. § 3053. Lien of factor. " § 3054. Banker's lien. § 3055. Ship-master's lien. § 3056. Seamen's lien. § 3057. Officer's lien. § 3058. Judgment lien. § 3059. Mechanic's lien. § 3060. Lien on ships. § 3061. Lien of workmen on thrashing-machines, etc. § 3062. Lien of person in charge of stallion, etc. § 3063. Filing of verified claim; notice to subsequent purchasers. § 3064. Action to enforce lien. § 3065. Lien of person who cuts, etc., logs, lumber, etc. § 3046. Lien of seller of real property. One who sells real property has a vendor's lien thereon, independent of posses- 751 MISCELLANEOUS LIENS. § 3051 sion, for so much of the price as remains unpaid and unsecured otherwise than by the personal obligation of the buyer. Transfer of personal security waives lien: Pest, § 3047. Transfer liy vendee to bona fide purchaser or encumbrancer dis- charges lien: Post, § 3048. Legislationi 3046. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1691. § 3047. When transfer of contract waives lien. Where a buyer of real property gives to the seller a Avritten contract for payment of all or part of the price, an absolute transfer of such contract by the seller waives his lien to the extent of the sum payable under the contract, but a transfer of such contract in trust to pay debts, and return the surplus, is not a waiver of the lien. Legislation § 3047. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1692. §3048. Extent of seller's lien. The liens defined in sections three thousand and forty-six and three thousand and fifty are valid against every one claiming under the debtor, except a purchaser or encumbrancer in good faith and for value. Constructive notice, who has: See ante, § 19. Legislation § 3048. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1693. § 3049. Lien of seller of personal property. One who sells personal property has a special lien thereon, dependent on pos- session, for its price, if it is in his possession Avhen the price becomes payable, and may enforce his lien in like manner as if the property was pledged to him for the price. Notice of sale to pledgor: See ante, § 3002. Legislation § 3049. Enacted March 21, 1872; based on Field's Draft, N. Y Civ. Code, § 1694. §3050. Purchaser's lien on real property. One who pays to the owner any jjart of the price of real property, under an agreement for the sale thereof, has a special lien upon the property, independent of possession, for such part of the amount paid as he may be entitled to recover back, in case of a failure of consideration. Legislation § 3050. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1695. § 3051. Lien on personal property for services thereon. Every person who, while lawfully in possession of an article of personal property renders any service to the owner thereof, by labor or skill, employed for the protection, improvement, safekeeping, or carriage thereof, has a special lien thereon, dependent on possession, for the compensation, if any, which § 3051 CIVIL CODE. 752 is due to him from the owner for such service ; a person Avho makes, alters, or repairs any article of personal property, at the request of the owner, or legal possessor of the property, has a lien on the same for his reasonable charges for the bal- ance due for such work done and materials furnished, and may retain possession of the same until the charges are paid; and livery or boarding or feed stable proprietors, and persons pas- turing horses or stock, have a lien, dependent on possession, for their compensation in caring for, boarding, feeding, or pasturing such horses or stock ; and laundry proprietors and persons conducting a laundry business, have a general lien, dependent on possession, upon all personal property in their hands belonging to a customer, for the balance due them from such customer for laundry work; and veterinarj^ proprietors and veterinary surgeons shall have a lien, dependent on posses- sion, for their compensation in caring for, boarding, feeding, and medical treatment of animals; and keepers of garages for automobiles shall have a lien, dependent on possession, for their compensation in caring for and safekeeping such auto- mobiles. [Amendment approved 1911; Stats. 1911, p. 887.] Carrier's lien: Ante, §§ 2144, 2191. Legislation § 3051. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1696), and then contained only the first clause of the section, which read the same as at present and in all the other amendments, ending with the words "for such service." 2. Amended by Code Amdts. 1877-78, p. 89, adding the clause be^ ginning "and livery" and ending "or stock" (the third clause of the amendment of 1907), this clause then ending the section. 3. Amended by Stats. 1901, p. 270, adding the clause beginning "and laundry proprietors" and ending "laundry-work" (the fourth clause of the amendment of 1907), this clause then ending the section. 4. Amended by Stats. 1907, p. 85, adding the second and final (the fifth) clauses; the first clause being the original code section, the third being added in 1877-78, and the fourth in 1901. As then amended it read: "Every person who, while lawfully in possession of an 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 lien thereon, dependent on possession, for the compensation, if any, which is due to him from the owner for such service; a person who makes, alters, or repairs any article of personal property, at the request of the owner, or legal pos- sessor of the property, has a lien on the same for his reasonable charges for work done and materials furnished, and may retain pos- session of the same until the charges are paid; and livery or boarding or feed stable proprietors, and jiersons pasturing horses or stock, have a lien, dependent on possession, for their compensation in caring for, boarding, feeding, or pasturing such horses or stock; and laundry pro- prietors and persons conducting a laundry business have a general lien, dependent on possession, upon all personal property in their hands belonging to a customer, for the balance due them from such customer for laundry-work; and veterinary hospital proprietors and veterinary surgeons shall have a lien, dependent on possession, for their compeu- 753 MISCELLANEOUS LIENS. § 3058 sation in caring for, boarding, feeding and medical treatment of ani- mals." 5. Amended by Stats. 1911, p. 887. § 3052. Lien-holder may sell property. Notice of sale. Proceeds. If the person entitled to the lien provided for in section three thousand and fifty-one of this code be not paid the amount due and for which said lien is given, within twenty days after the same shall have become due, then such lien- holder may proceed to sell said property, or so much thereof as may be necessary to satisfy said lien and costs of sale, at pub- lic auction, and by giving, at least ten days previous notice of such sale by advertising in some newspaper published in the county in which such property is situated; or, if there be no newspaper published in such county, then by posting notices of the sale in three of the most public places in the town or place where such property is to be sold, for ten days previous to the date of sale. The proceeds of the sale must be applied to the discharge of the lien and the cost of keeping and selling the property; the remainder, if any, must be paid over to the owner thereof. [Amendment approved 1907; Stats. 1907, p. 86.] Iiien in favor of owner of propagating animal: See post, § 3062. Legislation § 3052. 1. Enacted March 21, 1872, based on Stats. 1867- 68, p. 589, § 15 (Mechanic's Lien Act), and then read: "A person who makes, alters, or repairs any article of personal property, at the re- quest of the owner or legal possessor of the property, has a lien on the same for his reasonable charges for work done and materials fur- nished, and may retain possession of the same until the charges are paid. If 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 newspaper 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 in 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." 2. Amendment by Stats. 1901, p. 418; unconstitutional. See note, § 4, ante. 3.. Amended by Stats. 1907^ p. 86. § 3053. Lien of factor. A factor has a general lien, de- pendent on possession, for all that is due to him as such, upon all articles of commercial value that are intrusted to him by the same principal. Power of pledging: See ante, § 2991. Factor's enforcement of lien: Ante, § 2027. Commission merchant making advances may sell property when: See Pol. Code, § 3156. Civ. Code — 48 § 3059 CIVIL CODE. 754 Legislation § 3053. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1697. §3054. Banker's lien. A banker has a general lien, de- pendent on possession, upon all property in his hands belong- ing to a customer, for the balance due to him from such cus- tomer in the course of the business. Legislation § 3054, Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1698. §3055. Ship-master 's lien. The master of a ship has a gen- eral lien, independent of possession, upon the ship and freight- age, for advances necessarily made or liabilities necessarily incurred by him for the benefit of the ship, but has no lien for his wages. Legislation § 3055. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1699. §3056. Seamen's lien. The mate and seamen of a ship have a general lien, independent of possession, iipon the ship and freightage, for their wages, which is superior to every other lien. Legislation § 3056. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1700. §3057. Officer's lien. An officer who levies an attachment or execution upon personal property acquires a special lien, dependent on possession, upon such property, which authorizes him to hold it until the process is discharged or satisfied, or a judicial sale of the property is had. Attachment and execution: See Code Civ. Proc, §§ 542, 682, 688, and 690. Legislation § 3057. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1701. §3058. Judgment lien. The lien of a judgment is reg- ulated by the Code of Civil Procedure. Judgment lien: See Code Civ. Proc, §§ 671, 674. Legislation § 3058. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1703. §3059. Mechanic's lien. The liens of mechanics, for ma- terials and services upon real property, are regulated by the Code of Civil Procedure. Mechanics' liens: See Code Civ. Proc, §§ 1183-1203a. Legislation § 3059. 1. Enacted March 21, 1872. 2. Eepeal by Stats. 1901, p. 418; uuconstitutioual. See note, § 4, ante. 755 MISCELLANEOUS LIENS. § 3063 § 3060. Lien on ships. Debts amounting to at least fifty dollars, contracted for the benefit of ships, are liens in the cases provided by the Code of Civil Procedure. Liens for services performed for ships: See Code Civ. Proc, § 813. Legislation § 3060. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1705. ^ 2. Eepeal by Stats. 1901, p. 418; unconstitutional. See note, § 4, ante. § 3061. Lien of workmen on thrashing-machines, etc. Every person performing work or labor in, with, about, or upon any barley-crusher, thrashing-machine or engine, horse-power, wagon, or other appliance thereof, while engaged in crushing or thrashing, has a lien thereon to the extent of the value of his services. Such lien extends for ten days after any such person ceases such work or labor; provided, within that time, an action is brought to recover the amount of the claim. If judgment is given in favor of the plaintilf in any such action, and it is further found that he is entitled to a lien under the provisions of this section, property subject thereto, or so much thereof as may be necessary, may be sold to satisfy such judg- ment; but if several judgment [s] have been recovered against the same property for the enforcement of such liens, the pro- ceeds of the sale must be divided pro rata among the judgment creditors. Legislation § 3061. 1. Addition by Stats. 1901, p. 418; unconstitu- tional. See note, § 4, ante. 2, Added by Stats. 1905, p. 618; the code commissioner saying, "The statute of 1885, page 109, concerning liens in favor of persons working on thrashing-machines, is codified in this section." § 3062. Lien of person in charge of stallion, etc. Every owner or person having in charge any stallion, jack, or bull, used for propagating purposes, has a lien for the agreed price of its service upon any mare or cow and upon the offspring of such service, unless some willfully false representation concern- ing the breeding or pedigree of such stallion, jack, or bull has been made or published by the owner or person in charge there- of, or by some other person, at the request or instigation of such owner or person in charge. Legislation § 3062. 1. Addition by Stats. 1901, p. 418; unconstitu- tional. See note, § 4, ante. 2. Added by Stats. 1905, p. 618; the code commissioner saying in his note to §§ 3062-3064, "The statute of 1891, p. 90, is codified in the above sections." §3063. Filing of verified claim; notice to subsequent pur- chasers. Every claimant of a lien provided for in the preced- ing section must, within ninety days after the service on ac- count of which the lien is claimed, file in the office of the county § 3065 CIVIL CODE. 756 recorder of the county where the mare or cow subject thereto is kept, a verified claim containing a particular description of the mare or cow, the date and place of service, the name of the owner or reputed owner of such mare or cow, a description by name, or otherwise, of the stallion, jack, or bull performing the service, the name 6i the owner or person in charge thereof, and the amount of the lien claimed. Such claim, so filed, is notice to subsequent purchasers and encumbrancers of such mare or cow and of the offspring of such service for one year after such filing. Legislation § 3063. 1. Addition by Stats. 1901, p. 419; unconstitu- tional. See note, § 4, ante. 2. Added by Stats. 1905, p. 618. See ante, Legislation § 3062, for code commissioner's note. § 3064. Action to enforce lien. An action to enforce any lien created under section thirty hundred and sixty-two may be brought in an}- county wherein any of the property subject thereto may be found, and the plaintiff is entitled to the rem- edies provided in sections thirty hundred and forty-four and thirty hundred and sixty-five upon complying with such sec- tions, both of Avhich are hereby made applicable to the pro- ceedings in such action. Legislation § 3064. 1. Addition by Stats. 1901, p. 419; unconstitu- tional. See note, § 4, ante. 2. Added by Stats. 1905, p. 619. See ante, Legislation § 3062, -for code commissioner's note. § 3065. Lien of person who cuts, etc., logs, lumber, etc. A person who labors at cutting, hauling, rafting, or drawing logs, bolts, or other timber, has a lien thereon for the amount due for his personal services, which takes precedence of all other claims, to continue for thirty days after the logs, bolts, or other timber arrive at the place of destination for sale or manu- facture, while such logs, bolts, or other timber are in the county in which such labor was performed. The lien hereby created ceases and determines unless the claimant thereof, within twenty days from the time such labor is completed, brings suit to foreclose the same. The plaintiff in any such suit, at the time of issuing the summons or at any time after- wards, may have the logs, bolts, or other timber upon which such lien subsists attached, as provided in this code, upon de- livering to the clerk an affidavit by or on behalf of the plain- tiff, showing that defendant is indebted to the plaintiff upon a demand for labor performed, either in the cutting, hauling, rafting, or drawing such logs, bolts, or other timber, and that the sum for which the attachment is asked is an actual bona fide existing debt, due and owing from the defendant to the 757 STOPPAGE IN TRANSIT, § 3079 plaintiff, and that the attachment is not sought, and the action is not brought, to hinder, delay, or defraud any creditor or creditors of the defendant. Liens for wages: See Code Civ. Proc, §§ 1204-1208. Legislation § 3065. 1. Addition by Stats. 1901, p. 419; unconstitu- tional. See note, § 4, ante. 2. Added by Stats. 1905, p. 619; the code commissioner saying, "So much of the statute of 1877-78, p. 747, as amended in 1880, p. 38, and 1887, p, 53, relating to loggers' liens, as is deemed necessary to be pre- served, is codified in the above section." CHAPTER \U. Stoppage in Transit. § 3076. When consignor may stop goods. § 3077. "What is insolvency of consignee. § 3078. Transit, when ended. § 3079. Stoppage, how effected. § 3080. Effect of stoppage. § 3076. When consignor may stop goods. A seller or con- signor of property, whose claim for its price or proceeds has not been extinguished, may, upon the insolvency of the buyer or consignee becoming knoAvn to him after parting with the property, stop it while on its transit to the buyer or consignee, and resume possession thereof. That bills of lading are negotiable: See ante, §§ 2127, 2128. Legislation § 3076. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1707. § 3077. What is insolvency of consignee. A person is in- solvent, within the meaning of the last section, when he ceases to pay his debts in the manner usual with persons of his busi- ness, or when he declares his inability or unwillingness to do so. Insolvency, defined: See post, § 3450. Legislation § 3077. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1708. § 3078. Transit, when ended. The transit of property is at an end when it comes into the possession of the consignee, or into that of his agent, unless such agent is employed merely to forward the property to the consignee. Legislation § 3078. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1709. §3079. Stoppage, how effected. Rtoppage in transit can be effected only by notice to the carrier or depositary of the prop- erty, or by taking actual possession thereof. Legislation § 3079. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 1710. § 3087 CIVIL CODE. 758 § 3080. Effect of stoppage. Stoppage in transit does not, of itself, rescind a sale, but is a means of enforcing the lien of the seller. Legislation § 3080. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1711. LE XV. otiable Instruments. Chapter I. Negot&al\]^nstruments in General. Articles I- VH. §§3086- 3155. Bills \t I^change. Articles I-Vin. §§ 3171-3228. Promi^orv Notes. §§ 3244-3248. leck^ '§§ 32.54, 325-5. BM^ Nates and Certificates of Deposit. §§ 3261, 3262. CHAPTER I. Negotiable Instruments in General. General Definitions. §§3086-3095. Interpretation. §§ 3099-3104. Indorsement. §§3108-3125. Presentment for Payment. §§ 3130-3137. Dishonor. §§ 3141-3151. Excuse of Presentment and Notice. §§ 3155-3160. Extinction. §§ 3164, 3165. AETICLE I. General Definitions. § 3086. To what instruments this title is applicable. 3087. Negotiable instrument, what. § 30S8. Negotiable instruments. § 3089. Payee. § 3090. Instrument may be in alternative. § 3091. Date, etc. § 3092. May contain a pledge, etc. § 3093. What it must not contain. § 3094. Date. § 3095. Different classes of negotiable instruments. § 3086. To what instruments this title is applicable. The provisions of this title apply only to negotiable instruments, as defined in this article. Legislation § 3086. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 1712. § 3087. Negotiable instrument, what. A negotiable instru- ment is a written promise or request for the payment of a certain sum of money to order or bearer, m conformity to the provisions of this article. 759 NEGOTIABLE INSTRUMENTS IN GENERAL. § 3092 Fictitious payee: See ante, §§ 3102, 3103. Legislation § 3087. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1713. §3088. Negotiable instruments, A negotiable instrument must be made payable in money only and without any condi- tion not certain of fulfillment, except that it may provide for the payment of attorney's fees a"nd costs of suit, in case suit be brought thereon to compel the payment thereof; provided, however, that bonds payable to bearer shall be negotiable, not- withstanding any condition contained therein or in the mort- gage, deed of trust or other instrument securing the same. [Amendment approved 1915; Stats. 1915, p. 99.] other contract in instrument: See post, § 3093. Legislation § 3088. 1. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1714. 2. Amended by Stats. 1905, p. 96, adding the exception. And then read: "A negotiable instrument must be made payable in money only and without any condition not certain of fulfillment, except that it may provide for the payment of attorney's fees and costs of suit, in case suit be brought thereon to compel the payment thereof." 3. Amended by Stats. 1915, p. 99. § 3089. Payee. The person to whose order a negotiable instrument is made payable must be ascertainable at the time the instrument is made. Fictitious payee: See post, §§ 3102, 3103. Indorsement in blank: See post, § 3125. Legislation § 3089. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1715. § 3090. Instrument may be in alternative. A negotiable instrument may give to the payee an option betAveen the pay- ment of the sum specified therein and the performance of an- other act ; but as to the latter, the instrument is not within the provisions of this title. Legislation § 3090. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1716. § 3091, Date, etc. A negotiable instrument may be with or without date, and with or without designation of the time or place of payment. Antedating: See post, § 3094. Time of payment: See post, § 3248. Place of payment: See §§ 3100, 3130, 3131, subd. 4. Legislation § 3091. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1717. § 3092. May contain a pledge, etc. A negotiable instru- ment may contain a pledge of collateral security, with author- ity to dispose thereof. § 3100 CIVIL CODE. 760 Legislation § 3092. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1718. § 3093. What it must not contain. A negotiable instru- ment must not contain any other contract than such as is specified in this article. Legislation § 3093. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 1719. § 3094. Date. Any date may be inserted by the maker of a negotiable instrument, whether past, present, or future, and the instrument is not invalidated by his death or incapacity at the time of the nominal date. Legislation § 3094. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1720. § 3095. Different classes of negotiable instruments. There are six classes of negotiable instruments, namely : 1. Bills of exchange ; 2. Promissory notes ; 3. Bank notes; 4. Checks; 5. Bonds ; 6. Certificates of deposit. Bills of lading: Ante, § 2127. Certificates of stock are not negotiable instruments: See ante, § 324. Bills of exchange: See post, §§3171 et scq. Promissory notes: See post, §§ 3244 et seq. Bank notes: See post, § 3261. Checks: See post, § 3254 et seq. Legislation § 3095. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1721. ARTICLE II. Interpretation of Negotiable Instruments. § 3099. Time of payment. § 3100. Place of payment not specified. § 3101. Instruments payable to a person or his order, how construed. § 3102. Unindorsed note, when negotiable. § 3103. Fictitious payee. § 3104. Presumption of consideration. § 3099. Time of payment. A negotiable instrument which does not specify the time of payment, is payable immediately. Time of payment: See ante, § 3091. Legislation § 3099. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 1722. § 3100. Place of payment not specified. A negotiable in- strument which does not specify a place of payment, is pay- able at the residence or place of business of the maker, or 761 INTERPRETATION OF NEGOTIABLE INSTRUMENTS. § 8104 wherever he may be found. [Amendment approved 1874; Code Amdts. 1873-74, p. 262.] Place of payment. Where no place of payment is expressed in bill, drawee's place of residence is understood: Post, § 3131, subd. 1. Legislation § 3100. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, §1723), and then read: "A negotiable instru- ment which does not specify a place of payment is payable wherever it is held at its maturity." 2. Amended by Code Amdts. 1873-74, p. 262. § 3101.. Instruments payable to a person or his order, how construed. An instrument, otherwise negotiable in form, pay- able 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. Legislation § 3101. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1724. §3102. Unindorsed note, when negotiable. A negotiable instrument, made payable to the order of the maker, or of a fictitious person, if issued by the maker for a valid considera- tion, without indorsement, has the same effect against him and all other persons having notice of the facts as if payable to the bearer. Fictitious payee: See post, § 3103. Payee generally: See ante, § 3089. Legislation § 31T52. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1725. § 3103. Fictitious payee. A negotiable instrument, made payable to the order of a person obviously fictitious, is pay- able to the bearer. Legislation § 3103. Enacted March 21, 1872; based on "Field's Draft, N. Y. Civ. Code, § 1726. § 3104. Presumption of consideration. The signature of every drawer, acceptor, and indorser of a negotiable instru- ment is presumed to have been made for a valuable considera- tion, before the maturity of the instrument, and in the ordi- nary course of business. Legislation § 3104. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1727. § 3112 CIVIL CODE. 762 ARTICLE III. Indorsement. § 3108. Indorsement, what. ■§ 3109. Agreement to indorse. § 3110. When may be made on separate paper. §3111. Kinds of indorsement. § 3112. General indorsement, what. § 3113. Special indorsement, what. § 3114. General indorsement, how made special. § 3115. Destruction of negotiability by indorser. § 3116. Implied warranty of indorser. § 3117. Indorser, when liable to payee, § 3118. Indorsement without recourse. §3119. Same. § 3120. Indorsee privy to contract. § 3121. Rights of accommodation indorser. [Repealed.] § 3122. Effect of want of consideration. § 3123. Indorsee in due course, what. § 3124. Rights of indorsee in due course. § 3125. Instrument left blank. § 3108. Indorsement, what. One who writes his name upon a negotiable instrument, otherwise than as a maker or acceptor, and delivers it, with his name thereon, to another person, is called an indorser, and his act is called indorsement. Indorser before delivery: See post, § 3117. Legislation § 3108. Enacted March 21, 1872; based on Field's Draft, N. y. Civ. Code, §1728. § 3109. Agreement to indorse. One who agrees to indorse a negotiable instrument is bound to write his signature upon the back of the instrument, if there is sufficient space thereon for that purpose. Legislation § 3109. Enacted March 21, 1872; based on Field's Draft, . N. Y. Civ. Code, § 1729. § 3110. When may be made on separate paper. When there is not room for a signature upon the back of a negoti- able instrument, a signature equivalent to an indorsement thereof may be made upon a paper annexed thereto. Acceptance on separate paper: See post, §§ 3195, 3196. Legislation § 3110. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1730. § 3111. Kinds of indorsement. An indorsement may be general or special. Legislation § 3111. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1731. § 3112. General indorsement, what. A general indorse- ment is one by which no indorsee is named. Legislation § 3112. Enacted March 21, 1872; based on Field's Draft. N. Y. Civ. Code, § 1732. 763 INDORSEMENT. § 3116 § 3113. Special indorsement, what. A special indorsement specifies the indorsee. Legislation § 3113. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1733. § 3114. General indorsement, how made special. A nego- tiable instrument bearing a general indorsement 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 particular person. Legislation § 3114. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1734. § 3115. Destruction of negotiability by indorser. A special indorsement may, by express words for that purpose, but not otherwise, be so made as to render the instrument not nego- tiable. Legislation § 3115. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1735. § 3116. Implied waranty of indorser. Every indorser of a negotiable instrument, unless his indorsement is qualified, war- rants to every subsequent holder thereof, who is not liable thereon to him : First. That it is in all respects what it purports to be. Second. That he has a good title to it. Third. That the signatures of all prior parties are binding upon them. Fourth. That if the instrument is dishonored, the indorser will, upon notice thereof duly given to him, or without notice, where it is excused by law, pay the same with interest, unless exonerated under the provisions of sections thirty-one hundred and eighty-nine, thirty-two hundred and thirteen, thirty-two hundred and forty-eight, or thirty-two hundred and fifty-five. [Amendment approved 1874; Code Amdts. 1873-74, p. 263.] Note. Between the engagements of maker and acceptor and of drawer and indorser this distinction exists, that the contract of the maker and acceptor is absolute to pay at maturity, and no presentment is necessary to charge them: Post, § 3130; while the contract of the drawer and indorser is conditional, being contingent upon the true pre- sentment at maturity, and due notice in case it is not paid: Post, §§ 3141- 3151; unless a sufficient cause intervene excusing the holder from the performance of this duty: Post, §§ 3155-3160. Want or failure of consideration: See post, § 3122. Acceptance of bill of exchange admits genuineness of drawer's signature: See post, § 3199. Drawer of bill of exchange on acceptance has rights of a first in- dorser: See post, § 3177. Legislation § 3116. 1. Enacted March 21, 1872 (based on Field's Draft, N. Y. Civ. Code, § 1736), (1) the introductory paragraph not having the words "unless his indorsement is qualified"; (2) the sub- § 3122 CIVIL CODE. 764 divisions of the section being designated by Arabic numerals instead of Eoman ordinals; (3) subd. Fourth reading, "4. That if the instru- ment is dishonored, the indorser will, upon notice thereof duly given to him, or without notice, where it is excused by law, pay so much of the same as the holder paid therefor, with interest, unless exonerated under the provisions of section 3189, 3248, or 3255." 2. Amended by Code Amdts. 1873-74, p. 263. § 3117. Indorser, when liable to payee. One who indorses a negotiable instrument before it is delivered to the payee, is liable to the payee thereon, as an indorser. Indorser, defined: Ante, § 3108. Legislation § 3117. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1737. § 3118. Indorsement without recourse. An indorser may qualify his indorsement with the words, "without recourse," or equivalent Avords ; and upon such indorsement, he is re- sponsible only to the same extent as in the case of a transfer without indorsement. Legislation § 3118. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1738. § 3119. Same. Except as otherAvise prescribed by the last section, an indorsement, without recourse, has the same effect as any other indorsement. Legislation § 3119. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1739. §3120. Indorsee privy to contract. An indorsee of a ne- gotiable instrument has the same rights against every prior party thereto that he would have had if the contract had been made directly between them in the first instance. Collateral security, etc.: Ante, § 293(i. Legislation § 3120. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1740. §3121. Rig-hts of accommodation indorser. [Repealed 1874; Code Amdts. 1878-74, p. 268.] Legislation § 3121. 1. Enacted March 21, 1872. 2. Repealed by Code Amdts. 1873-74, p. 263. § 3122. Effect of want of consideration. The want of con- sideration for the undertaking of a maker, acceptor, or in- dorser of a negotiable instrument does not exonerate him from liability thereon to an indorsee in good faith for a considera- tion. Writing imports consideration: Ante, § 1C14. Legislation § 3122. Enacted March 21. 1872; based on Field's Draft, N. Y. Civ. Code, § 1743. 765 PRESENTMENT FOR PAYMENT. § 3130 § 3123. Indorsee in due course, what. An indorsee in due course is one Avho, in good faitli, in the ordinary course of businesss, and for value, before its apparent maturity or pre- sumptive dishonor, and without knowledge of its actual dis- honor, acquires a negotiable instrument duly indorsed to him, or indorsed generallj^, or payable to the bearer. Presumptive dishonor: See post, § 31. S3. Checks are an exception to the rule of "after maturity": Post, § 3255, subd. 2. Legislation § 3123. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1744. § 3124. Rights of indorsee in due course. An indorsee of a negotiable instrument, in dvie course, acquires an absolute title thereto, so that it is valid in his hands, notwithstanding any provision of law making it generally void or voidable, and notwithstanding any defect in the title of the person from whom he acquired it. Assignment, effect on defense: See Code Civ. Proc, § 368. Non -negotiable instruments, assignments of: Ante, § 1459. Legislation § 3124. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1745. § 3125. Instrument left blank. One Avho makes himself a party to an instrument intended to be negotiable, but which is left whollv or tartly in blank, for the purpose of filling afterwards, is liable upon the instrument to an indorsee thereof in due course, in whatever manner and at whatever time it may be filled, so long as it remains negotiable in form. Legislation § 3125. Enacted March 21, 1872; based on Field's Draft, N. Y. Civ. Code, § 1746. ARTICLE TV. Presentment for Payment. § 3130. Effect of want of demand on principal debtor. §3131. Presentment, how made. § 3132. Apparent maturity, when. § 3133. Presumptive dishonor of bill, pavable after si^ht. § 3134. Apparent maturity of bill, payable at sight. § 3135. Apparent maturitv of note. § 3136. Same. § 3137. Surrender of instrument, when a condition of payment. S 3130. Fiffeot of v^nt o^ dern^vd on principal debtor. Tt is not uPco?:snrv to umke a demand of -navment unon the prin- - Commercial banks, capital required. Appendix, tit. "Banking," § 82. Commercial banks, capital stock of. Appendix, tit. "Banking" § 82. <^,'ommereial banks, directors, loans to, report of to superintendent of banks and proceedings by. Appendix, tit. "Banking," § 83. Commercial banks, directors, loans to, restrictions on. Appendix, tit. "Banking," § 83. INDEX. 1001 BANKS AND BANKING. II. Banking Act of 1909. (Continued.) Commercial banks, directors, loans to, violation of statute a felony. Appendix, tit. "Banking," § 83. Commercial banks, loans, limit on. Appendix, tit. "Banking," §§ 80, 81. Commercial banks, meaning of. Appendix, tit. "Banking," § 5. Commercial banks, computation of liabilities to. Appendix, tit. "Banking, § 80. Commercial banks, deposit with other banks, superintendent of banks may limit. Appendix, tit. "Banking," § 85. Commercial banks, drafts and bills of exchange, acceptance of and regulations governing. Appendix, tit. "Banking," § 80. Commercial banks, limit on right to purchase bondg. Appendix, tit. "Banking," §§ 36, 46. Commercial banks, loans bv, limit on. Appendix, tit. "Banking," § 80. Commercial, banks, loans by, regulation of. Appendix, tit. "Bank- ing," § 80. Commercial banks, loans on real estate by, regulations as to. Ap- pendix, tit. "Banking," § 47. Commercial banks, loans to officers, agents or employees, regulations governing. Appendix, tit. "Banking," § 83. Commercial banks, loans to officers, agents or employees, violation of regulations governing, punishment for. Appendix, tit. "Bank- ing," § 83. Commercial banks, loans to officers, agents or employees, provisions as to not applicable to religious corporations, clubs, etc. Appen- dix, tit. "Banking," § 83. Commercial banks not to advertise or receive deposits as savings banks. Appendix, tit. "Banking," § 49. Commercial banks, reserves required of. Appendix, tit. "Banking," §20. Commercial bank violating provision as to advertising or receiving deposits as savings banks, penaltv. Appendix, tit. "Banking," § 49. Conducting business in unsafe manner, proceedings in case of. Ap- pendix, tit. "Banking," §§ 134, 135, 136. Conformity to act by existing corporation. Appendix, tit. "Bank- ing," § 145. Consolidation of banks. Appendix, tit. "Banking," § 31a. Corporations, existing, effect of act on. Appendix, tit. "Banking," § 145. Corporations to conduct banking, how formed. Appendix, tit. "Bank- ing," § 3. Corporations, to what act applicable. Appendix, tit. "Banking," §§ 1, 145. Debts, creation of, receiving deposits, issuing certificates of deposits, checks, etc., is not. Appendix, tit. "Banking," § 55. Definition of bank. Appendix, tit. "Banking," § 2. Departmental banking, right of. Appendix, tit. "Banking," § 22. Departmental banks, assets of departments to be reserved for depart- mental depositors and creditors. Appendix, tit. "Banking," § 27. Departmental banks, business to be conducted in one building. Ap- pendix, tit. "Banks," § 26. Departmental banks, capital, increase or decrease of. Appendix, tit. "Banking," § 23, subd. e. Departmental banks, capital required. See .Appendix, tit. "Banking," §23. 1002 INDEX. BANKS AND BANKING. II. Banking Act of 1909. (Continued.) Departmental banks, capital and surplus, segregation and apportion- ment of and change of. Appendix, tit. "Banking," § 23. Departmental banks, certificate for each department, necessity for, issuance of, and fee for. Appendix, tit. "Banking," § 24. Departmental banks, deposits with other banks as assets of respective departments. Appendix, tit. "Banking," § 2.5. Departmental banks, deposits in departments and transfer of. Ap- pendix, tit "Banking," § 25. Departmental banks, deposits, not to receive from other depart- ments. Appendix, tit. "Banking," § 25. Departmental banks, interchange of deposits, bonds, securities, etc., between departments. Appendix, tit. "Banking," § 25. Departmental banks, priority of depositors of the several depart- ments. Appendix, tit. "Banking," § 27. Departmental banks, reports by. Appendix, tit. "Banking," § 129. Departmental banks, reserve for each department.- Appendix, tit. "Banking," § 25. Departmental banks, separate accounts and investments. Appendix, tit. "Banking," § 26. Departmental banks, what necessary before doing business. Appen- dix, tit. "Banking," § 23. Department, new, opening of, procedure and fee. Appendix, tit. "Banking," § 24. Depository of funds of bank, designation of. Appendix, tit. "Bank- ing," § 43. Depositary b^nks, banks of New York, Chicago, Boston, St. Louis or Philadelphia as. Appendix, tit. "Banking," § 20. Depositary' banks, required capital and surplus of. Appendix, tit. "Banidng," § 20. Depositary banks, reserves required of. Appendix, tit. "Banking," §20. Depositors have prioritv over stockholders. Appendix, tit. "Bank- ing," § 21. ^ Deposit by executor, guardian, etc., and relief from liability. Appen- dix, tit. "Banking," § 51. Deposit in trust for another, rights under. Appendix, tit. "Bank- ing," § 16. Deposits by infants, how held and paid. See Appendix, tit. "Bank- ing," § 16. Deposits by married women, how held and paid. Appendix, tit. "Banking," § 16. Deposit of funds in another bank, right of. Appendix, tit. "Bank- ing," § 43. Deposits of decedents in savings banks. See Estates of Decedents; Public Administrators. Deposits by decedents under one thousand dollars, withdrawing with- out administration. Appendix, tit. "Banking," § 16. Deposits in other baulks, right to make. Appendix, tit. "Banking," §43. Deposits, joint. Appendix, tit. "Banking," § 16. Deposits, time of making, what deemed to be. Appendix, tit. "Bank- ing," § 15. Deposits unclaimed for twenty years, deposit of with state treasurer. Appendix, tit. "Banking," § 15. Deposits unclaimed in hands of superintendent of banks, disposition of. Appendix, tit. "Banking," § 136, INDEX. 1003 BANKS AND BANKING. II. Banking Act of 1909. (Continued.) Deposits unclaimed, statements as to. Appendix, tit. "Banking," §15. Deposits, unclaimed for twenty years, proceedings in case of. Ap- pendix, tit. "Banking," § 15. Deposits with other banks by departmental banks as assets of re- spective departments. Appendix, tit. "Banking," § 25. Deposit with state treasury to secure performance of trusts, penalty for failure to comply with statute. Appendix, tit. "Banking," §98. ■ . Depositors, capital and assets are security for. Appendix, tit. "Bank- ing," § 21. Depositors have priority over stockholders. Appendix, tit. "Bank- ing," § 21. ' Depositors, stockholders as, priority of. Appendix, tit. "Banking," § 20. Depositors who are dead, or who have not made deposits or withdraw- als for ten years, return and publication of. Appendix, tit. "Bank- ing," § 15. Director, ceasing to be stockholder after election, effect of. Appen- dix, tit. "Banking," § 10. Directors, duty to examine into bank, and powers in relation to. Appendix, tit. "Banking," § 139. Directors, eligibility. Appendix, tit. "Banking," § 10. Directors, eligibility of executor or administrator. Appendix, tit. "Banking," § 10. Directors, eligibility of where bank organized without capital stock. Appendix, tit. "Banking," § 10. Directors, loans to bv commercial banks. Appendix, tit. "Banking," §83. Directors, meeting of. Appendix, tit. "Banking," § 11. Directors not to become obligors for loans by bank, section repealed. Appendix, tit. "Banking," § 33. Directors, oath of. Appendix, tit. "Banking," § 11. Directors, overdrawing account or receiving benefit for procuring loan, etc., a felony. Appendix, tit. " Banking," § 39. Directors, posting lists of, with number of shares owned. Appendix, tit. "Banking," § 17. Directors, qualifications of. Appendix, tit. "Banking," § 10. Directors, report by, what is to show. Appendix, tit. "Banking," § 139. Directors, report, duty to make and power of superintendent of banks on failure to make. Appendix, tit. "Banking," § 139. Directors, transfer of mortgage of or contract for sale of realty to bank. Appendix, tit. "Banking," § 35. Dissolution of banks, dividends, uncalled for, payment into county treasury and discharge of receiver. Appendix, tit. "Banking," §137. . _ Dissolution of banks, escheat of unclaimed property. Appendix, tit. "Banking," § 137. Dissolution of banks, escheat of moneys deposited with state treas- urer and uncalled for. Appendix, tit. "Banking," § 137. Dissolution of banks, funds, payment of into state treasury after five years. Appendix, tit. "Banking," § 137. Dissolution of banks, furnishing county treasurer with list of depos- itors or claimants. Appendix, tit. "Banking," § 137. Dissolution of banks, investment of moneys deposited in state treas- ury. Appendix^ tit. "Banking," § 137, 1004 INDEX. BANKS AND BANKING. II. Banking Act of 1909. (Continued.) Dissolution of banks, list of depositors, furnishing to county treas- urers. Appendix, tit. "Banking," § 137. Dissolution of banks, payment of escheated money to state treasurer by county treasurer. Appendix, tit. "Banking," § 137. Dissolution of banks, procedure. Appendix, tit. "Banking," § 137. Dissolution of banks, right of. Appendix, tit. "Banking," § 137. Dissolution of bank, superintendent of banks may bring action for, when. Appendix, tit. "Banking," § 135a. Dissolution of banks, withdrawal of moneys deposited with state or county treasurer. Appendix, tit. "Banking," § 137, subd. 4. Dividends, declaring. Appendix, tit. "Banking," § 21. Dividends, declaring by superintendent of banks. Appendix, tit. "Banking, § 136. Dividends unclaimed, disposition of by superintendent of banks. Ap- pendix, tit. "Banking," § 136. Doing business as a bank, prohibition as to. Appendix, tit. "Bank- ing," § 12. Escrow, right to receive money in without supervision of superin- tendent of banks. Appendix, tit. "Banking," § 101. Existing corporations, effect of banking act on. Appendix, tit. "Banking," § 14.5. Failure or neglect to comply with provisions of statute, effect on acts of. Appendix, tit. "Banking." § 98. Felonies, what violations of act are, §§ 32, 35, 38, 39, 65, 67, subd. 5, 83. Filing certified copies of articles and amendments. Appendix, tit. "Banking," § 8. Foreign banks, oaths of managers or agents of. Appendix, tit. "Bank- ing," § 11. Foreign banking corporations, right to do business. Appendix, tit. "Banking," § 7. Foreign corporations, not affected by provisions of bank act. Ap- pendix, tit. "Banking," § 12c. Foreign corporation, designating superintendent of banks as agent for service of process. Appendix, tit. "Banking," § 7. Foreign corporations, requirements of. Appendix, tit. "Banking," § 7. Foreign corporation, superintendent, designated as agent for service of process, rights and duties. Appendix, tit. "Banking," § 7. Formation of banks, any number of persons not less than three may form. Appendix, tit. "Banking." § 3. Impairment of capital, proceedings in case of. Appendix, tit. "Bank- ing," § 133. Inspection and examination of banks, agencies of foreign banks, ex- amination of. Appendix, tit. "Banking," § 124. Inspection and examination of banks, appraisement of securities of doubtful value. Appendix, tit. "Banking," § 124. Inspection and examination of banks, auditor, appointment of to ■ make audit. Appendix, tit. "Banking," § 124. Inspection and examination of banks, powers and duties in relation to. Appendix, tit. "Banking," § 124. Inspection and examination of title insurance companies. See Title Insurance Companies. Inspection and examination of trust companies. See Trust Com- panies. Interest unpaid not to be included in calculating profits previous to dividends. Appendix, tit. "Banking," § 45. Investment of capital or surplus in its own stock, provision as to. Appendix, tit. "Banking," § 37. INDEX. 1005 BANKS AND BANKING. II. Banking Act of 1909. (Continued.) Investment of capital or surplus in stocks of corporations. Appen- dix, tit. "Banking," § 37. Investments before passage of bank act, how affected. Appendix, tit. "Banking," § 145. Kind of bank must appear from its signs, advertising, letter-heads, etc. Appendix, tit. "Banking," § 28. Letters of credit, license from superintendent of banks necessary before issuing. Appendix, tit. "Banking," § 13. Letters of credit, license to issue, fee for. Appendix, tit. "Banking," § 13. Letters of credit, what corporations, associations or partnerships may- issue. Appendix, tit. "Banking," § 13. Life insurance companies, banking act does not apply to. Appendix, tit. "Banking," § 12b. Loans on stock of another bank, restrictions as to. Appendix, tit. "Banking," § 44. Liquidation by superintendent of banks. Appendix, tit. "Banking," § 136. Loans secured by first lien on realty, taxes, assessments and bonds not prior encumbrances or liens. Appendix, tit. "Banking," § 57. Losses, charging to. Appendix, tit. "Banking," § 21. Meetings of directors, how often to be held. Appendix, tit. "Bank- ing," § 11. Misdemeanor, violating provisions of bank act in relation to adver- tising as a bank. Appendix, tit. "Banking," § 12a. Mortgage in which officer interested, not to be transferred to bank. Appendix, tit. "Banking," § 35. Mortgage, punishment of officer transferring to bank when he is in- terested. Appendix, tit. "Banking," § 35. Name of unincorporated bank, what to show. Appendix, tit. "Bank- ing," § 13. Name, what words must use on letter-heads, signs, etc. Appendix, tit. "Banking," § 28. National banks, examination of. Appendix, tit. "Banking," § 48. National banks, expense of examination to be paid by banks, § 48. National banks receiving deposits to submit to examination, § 48. National banks, refusal to submit to examination, deposits by state banks to be withdrawn from, § 4S. National reserve association, banks authorized to join or associate with, § 56. National reserve association, bank joining may conform business to provisions of act of Congress creating it, § 56. National reserve association, right of banks to invest in stock, § 56. Non-stock corporation, transferring into stock corporation. Appen- dix, tit. "Banking," § 29. Notes or bonds, sale of to bank by officer, employee or stockholder, a felony, § 35. Number of persons who may form banking corporation. Appendix, tit. "Banking," § 3. Officer, agent or employee not to purchase assets at discount. Ap- pendix, tit. "Banking," § 42. Officer, agent or employee not to purcliase obligations at discount. Appendix, tit. "Banking," § 41. Officer^ agent or employee overdrawing account by, a felony. Appen- dix, tit. "Banking," § 39. Officer, agent or employee purchasing assets at discount, penalty. Appendix, tit. "Banking," § 42. 1006 INDEX. BANKS AND BANKING. II. Banking Act of 1909. (Continued.) Officer, agent or employee purchasing obligations at discount, penalty for. Appendix, tit. "Banking,"' § 41. Officer, agent or employee, receiving reward for procuring loan or ac- commodation, a felony. Appendix, tit. "Banking," § 39. Officers or employees not to become borrowers or obligors, repeal of section. Appendix, tit. "Banking," § 33. Officer or employee overdrawing account or receiving benefit for pro- curing loan, etc., a felony. Appendix, tit. "Banking," § 39. Officer or employee, transfer of mortgage or contract for sale of realty to bank. Appendix, tit. "Banking," § 35. Officers or employees violating provisions of statute against borrow- ing, etc., provision repealed. Appendix, tit. "Banking," § 33. Officers, provision as to borrowing funds repealed. Appendix, tit. "Banking," § 33. Overdrafts of over ninety days not allowed to stand as an asset. Appendix, tit. "Banking," § 21a. Partnership doing banking business, list of partners and capital paid in, provision as to repealed. Appendix, tit. "Banking," § 18. Penal liabilities of officers or emplovers. Appendix, tit. "Banking," §§ 12a, 33, 34, 3.5, 37, 38, 39, 41, 42, 65, 67, subd. 5, 83, 126, 127, 143. Penalties or forfeitures, attorney-general maj- sue for on request of superintendent of banks. Appendix, tit. "Banking," § 144. Penalties, action by attorney general to recover. Appendix, tit. "Banking," § 144. Penalties, compromise of. Appendix, tit. "Banking," § 144. "Personal property," meaning of. Appendix, tit. "Banking," § 55. Population, how ascertained in determining capital stock required. Appendix, tit. "Banking," § 290a, subd. e. Population, how determined where principal place of business is out- side city. Appendix, tit. "Banking," § 290a, subd. e. Posting of last certificate obtained from superintendent of banks. Appendix, tit. "Banking," § 50. Powers, privileges, duties and restrictions conferred on banks, en- largement, modification or restriction of to conform to bank act. Appendix, tit. "Banking," § 145. Preferences not to be given to depositors or creditors by pledging assets. Appendix, tit. "Banking," § 21a. Provisions of bank act apply equally to all bank corporations. Ap- pendix, tit. "Banking," § 145. Publication of statement of financial condition, when to be made and what to show. Appendix, tit. "Banking," § 132. Purchase of obligations of bank by director, officer or employee for- bidden. Appendix, tit. "Banking," § 41. "Real estate" or "real property," meaning of. Appendix, tit. "Bank- ing," § 55. Eeal estate, power to loan upon. Appendix, tit. "Banking," § 47. Real estate purchased by, purchase of by third persons, procedure. Appendix, tit. "Banking," § 54. Real estate purchased by, to be sold within five years. Appendix, tit. "Banking," § 54. Real estate purchased, right of third person to purchase. Appendix, tit. "Banking," § 54. Real estate, writing down of the value of by superintendent of banks. Appendix, tit. "Banking," § 54. Reports by directors and what to show. Appendix, tit. "Banking," §139. INDEX. 1007 BANKS AND BANKING. II. Banking Act of 1909. (Continued.) Eeports by superintendent of banks to governor. Appendix, tit. "Banking," § 140. Reports by superintendent of banks prima facie evidence. Appen- dix, tit. "Banking," § 142. Eeports to superintendent of banks by banks doing departmental business. Appendix, tit. "Banking," § 129. Report to superintendent of banks by foreign banks. Appendix, tit. "Banking," § 130. Report to superintendent of banks, penalty for failure to make. Ap- pendix, tit. "Banking," § 138. Report to superintendent of banks, special reports. Appendix, tit. "Banking," § 130a. Reports to superintendent of banks, three to be made each year. Appendix, tit. "Banking," § 131. Report to superintendent of banks, verification of. Appendix, tit. "Banking," § 130. Report to superintendent of banks, what to slrow. Appendix, tit. "Banking," § 130. Reports to superintendent of banks, when to make. Appendix, tit. "Banking," §130. Reserve falling below requirements, proceedings. Appendix, tit. "Banking," § 20. Reserves required of banks. Appendix, tit. "Banking," § 20. Reserve, lawful money reserve, amount of. Appendix, tit. "Bank- ing," § 20. Reserve, lawful money reserve, proceedings where deficiency in. Ap- pendix, tit. "Banking," § 20. Reserve, trust funds not to be counted as part of. Appendix, tit. "Banking," § 32. Reserve, what portion of profits paid into. Appendix, tit. "Bank- ing," § 21. . Reserves of departmental banks. Appendix, tit. "Banking," § 25. Reserve of depositary bank. Appendix, tit. "Banking," § 20. Reserves, penalty for not maintaining. Appendix, tit. "Banking," §20. Reserves, trust funds not regarded as part of. Appendix, tit. "Bank- ing," § 32. Resumption of business by bank after superintendent has taken pos- session. Appendix, tit. "Banking," § 136. Safe deposit, right to conduct. Appendix, tit. "Banking," § 30. Sale of assets to another bank. Appendix, tit. "Banking," § 31. Sale of business, right of and procedure. Appendix, tit. "Banking," §31. Sale of business, rights of creditors. Appendix, tit. "Banking," § 31. Savings bank, advertising as, by other banks forbidden. Appendix, tit. "Banking," § 49. Savings banks, assets a security to depositors. Appendix, tit. "Bank- ing," § 64. Savings banks, bonds or notes of public utility commission, right to purchase or loan money on. Appendix, tit. "Banking," § 61. Savings banks, capital paid up. Appendix, tit. "Banking," § 19. Savings banks, capital required. Appendix, tit. "Banking," § 60. Savings banks, capital stock, increase or decrease of. Appendix, tit. "Banking," § 60. Savings banks, capital stock of. Appendix, tit. "Banking," § 60. See, also, Savings Banks. 1008 INDEX. BANKS AND BANKING. II. Banking Act of 1909. (Continued.) Savings banks, cash, amount to be carried by. Appendix, tit. "Bank- ing," § 68. Savings banks, certificates of deposit, issuance of by. Appendix, tit. "Banking," § 63. ' Savings bank, creation of debt by, what acts are not. Appendix, tit. "Banking," § 66. Savings banks, debts other than for deposits, power to contract. Appendix, tit. "Banking," § 62. Savings banks, depositors, conditions of payment to. Appendix, tit. "Banking," § 64. Savings banks, deposits, notice of intention to withdraw. Appendix, tit. "Banking," § 64. Savings banks, deposits of decedents in, authority of public adminis- trator. Appendix, tit. "Banking," § 68^/2. Savings banks, deposits of decedent in may remain in. Appendix, tit. "Banking," § 681/2. Savings banks, deposits, receiving from other banks. Appendix, tit. "Banking," § 68. Savings banks, deposits, time and condition of repayments. Appen- dix, tit. "Banking," § 64. Savings banks, deposits with other banks not loans. Appendix, tit. "Banking," § 68. Savings banks, deposits with other banks, power to make. Appen- dix, tit. "Banking," § 68. Savings bank, deposits with banks, power as to. Appendix, tit. "Banking," § 68. Savings bank, directors or officers, borrowing by, a felony. Ap- pendix, tit. "Banking," § 65. Savings bank, directors or officers, borrowing by, forbidden. Appen- dix, tit. "Banking," § 65. Savings banks, discounting or purchasing commercial paper made* eligible under federal reserve act. Appendix, tit. "Banking," §67. Savings banks, hypothecation of securities forbidden. Appendix, tit. "Banking," § 62. Savings banks in schools. Appendix, tit. "Banking," § 9. Savings banks, investments, advertisements that bonds are legal in- vestments for. Appendix, tit. "Banking," § 61. Savings banks, investments made prior not affected. Appendix, tit. "Banking," § 66. Savings banks, investments, bonds, investigation of by superintend- ent of banks. Appendix, tit. "Banking," § 61a. Savings banks, investments, regulations governing. Appendix, tit. "Banking," § 61. Savings banks, investments, what property may invest in. Appen- dix, tit. "Banking," § 67. , Savings banks, loans, indorser or guarantor deemed to be a borrower. Appendix, tit. "Banking," § 66. Savings bank, loans, limit on amount of. Appendix, tit. "Banking," §67. Savings banks, loans, limit on length of. Appendix, tit. "Banking," §67. Savings bank, loans not to be made during deficiency in deposits. Appendix, tit. "Banking," § 68. Savings bank, loans, officer violating law as to, guilty of felony. Appendix, tit. "Banking," § 67. Savings banks, loans or investments in violation of statute a felony. Appendix, tit. "Banking," § 67, subd. 5. INDEX. 1009 BANKS AND BANKING. II. Banking Act of 1909. (Coutiuued.) Savings banks, loans or investments not to be made where calls ex- ceed deposits available. Appendix, tit. "Banking," § 65. Savings banks, loans, renewals not affected by provisions of statute. Appendix, tit. "Banking," § 66. Savings banks, loans to officers or employees in violation of statute, penalty for. Appendix, tit. "Banking," § 65. Savings banks, loans to officers or employees, regulations governing. Appendix, tit. "Banking," § 65. Savings banks, loans, what realty or personalty may loan money on. Appendix, tit. "Banking," § 67. Savings banks, loans must be on adequate security. Appendix, tit. "Banking," § 67. - Savings banks, loans on realty or personalty, regulations governing. Appendix, tit. "Banking," § 67. Savings banks, loans on unsecured notes forbidden. Appendix, tit. "Banking," § 67. Savings banks, loan to corporation whose stock controlled by directors of bank forbidden. Appendix, tit. "Banking," §65. Savings banks, loans to membership corporation or club of which officers of bank are members. Appendix, tit. "Banking,"§ 65. Savings banks, losses may be charged to and paid out of reserve fund. Appendix, tit. "Banking," § 64. Savings banks^ may borrow public moneys of state, counties, etc. Appendix, tit. "Banking," § 62. Savings bank, meaning of. Appendix, tit. "Banking," § 4. Savings bank, new loans not to be made where large calls by depositors. Appendix, tit. "Banking," § 64. Savings banks, paid-up capital and surplus, amount of required. Ap- pendix, tit. "Banking," § 19. Savings banks, paying depositors by drafts upon deposits and charg- ing current rates of exchange. Appendix, tit. "Banking," § 62. Savings banks, paying regular customers by drafts upon deposits. Appendix, tit. "Banking," § 62. Savings bank, powers of. Appendix, tit. "Banking," § 4. Savings banks, personal property, power to deal in. Appendix, tit. "Banking," § 61. Savings bank, personal property, what may be purchased or held by. Appendix, tit. "Banking," § 61. Savings bank, power to deal in realty and personalty. Appendix, tit. "Banking," § 62. Savings banks, property, what may hold. Appendix, tit. "Banking " §61. Savings banks, property, what may be purchased or held by. Appen- dix, tit. "Banking," § 61. Savings banks, real property, power to deal in. Appendix, tit. "Banking," § 62. Savings banks, real property, what may be purchased and held by. Appendix, tit. "Banking," § 61. Savings banks, reserves, how kept. Appendix, tit. "Banking," § 68. Savings banks, reserves, larger may be created. Appendix, tit. "Banking," § 64. Savings banks, reserves, new loans not to be made during deficiency in. Appendix, tit. "Banking," § 68. Savings banks, reserve fund, amount of. Appendix, tit. "Banking " §19. Savings banks, reserve fund required where no capital stock. Ap- pendix, tit. "Banking," §§ 60, 64, 08. Civ. Code — 64 1010 INDEX. BANKS AND BANKING. II. Banking Act of 1909. (Continued.) Savings banks, right to borrow money or hypothecate securities. Appendix, tit. "Banking," § 62. Savings banks, right to borrow public moneys. Appendix, tit. "Banking," § 62. Savings bank, securities, what may hold. Appendix, tit. "Banking," §61. Savings banks, surplus, amount of. Appendix, tit. "Banking," § 19. Savings banks to be conducted under provisions of bank act. Ap- pendix, tit. "Banking," § 69. Savings bank, unlawful for commercial banks to advertise as. Ap- pendix, tit. "Banking," § 49. Savings banks without capital stock, dividends, amount to be car- ried to reserve before declaring. Appendix, tit. "Banking," § 6-1. Savings banks without capital stock, reserve of. Appendix, tit. "Banking," § 60. Savings banks without capital stock, reserve, excess, disposal of. Appendix, tit. "Banking," § 64. Savings bank without capital stock, reserve or balance, disposal of on dissolution. Appendix, tit. "Banking." § 64. Schools, savings banks in. Appendix, tit. "Banking," § 9. State banking department, certificate, examination of fitness of stockholders before issuing. Appendix, tit. "Banking," § 128. State banking department, certificate, issuance of and transmission to county clerk. Appendix, tit. "Banking," § 128. State banking department, creation of. Appendix, tit. "Banking," § 120. State banking department, examination into foreign banks. Appen- dix, tit. "Banking," § 124. State banking department, examiner, neglect to report condition of bank a felony. Appendix, tit. "Banking," § 126. State banking department, examiner, not to be appointed receiver. Appendix, tit. "Banking," § 12.5. State banking department, examiner, oath of. Appendix, tit. "Bank- ing," § 125." State banking department, examiner, powers and duties of. Appen- dix, tit. "Banking," § 124. State banking department, inspection of banks. Appendix, tit. "Banking," § 124. State banking department, officers of. Appendix, tit. "Banking," § 120. State banking department, state banking fund, contribution of banks to, how determined. Appendix, tit. "Banking," § 123. State banking department, state banking fund, expenses of depart- ment paid out of. Appendix, tit. "Banking," § 123. State banking department, state banking fund, how created and where deposited. Appendix, tit. "Banking," § 123. State banking department, state banking fund, unexpended balances become part of fund. Appendix, tit. "Banking," § 123. State banking department, superintendent of banks, appointees, number, salaries, and qualifications of. Appendix, tit. "Bank- ing," § 121. State banking department, superintendent of banks, appointment, term of office, qualifications, and salary. Appendix, tit. "Bank- ing," § 120. State banking department, superintendent of banks, approval of and certificate to bank transacting business. Appendix, tit. "Bank- ing," § 127. INDEX. 1011 BANKS AND BANKING. II. Banking Act of 1909. (Continued.) State banking department, superintendent of banks, chief deputy, appointment, qualification, bond and oath. Appendix, tit. "Banking," § 121. State banking department, superintendent of banks, duty on impair- ment of capital by bank. Appendix, tit. "Banking," § 133. State banking department, superintendent of banks, liquidation of bank by. Appendix, tit. "Banking," § 136. State banking department, superintendent of banks, may request at- torney-general to sue for forfeiture, and penalties. Appendix, tit. "Banking," § 144. State banking department, superintendent of banks, neglect by, when a felony. Appendix, tit. "Banking," § 143. State banking department, superintendent of banks, oath and bond of. Appendix, tit. "Banking," § 120. State- banking department, superintendent of banks, offices, furniture, fuel, stationery and lights for. Appendix, tit. "Banking," § 122. State banking department, superintendent of banks, offices, where located. Appendix, tit. "Banking," § 122. State banking department, superintendent of banks, proceedings where bank does unsafe business. Appendix, tit. "Banking," §§ 134, 135. State banking department, superintendent of banks, proceedings where bank violates law or articles of incorporation. Appendix, tit. "Banking," § 134. State banking department, superintendent of banks, report of. Ap- pendix, tit. "Banking," § 140. State banking department, superintendent of banks, reports of are prima facie evidence. Appendix, tit. "Banking," § 142. State banking department, superintendent of banks, weekly bulletin, posting of and what to contain. Appendix, tit. "Banking," § 141. Statement of resources and liabilities, what to show. Appendix, tit. "Banking," § 14. Stock, bank purchasing its own, stock to be sold within what time. Appendix, tit. "Banking," § 37. Stock, capital, of savings banks. Appendix, tit. "Banking," §§ 60, 82. Stock, capital, par value of. Appendix, tit. "Banking," § 53. Stock, capital, paid up, value to be indorsed on. Appendix, tit "Banking," § 53. Stock, investment by corporations in stock of corporations. Appen- dix, tit. "Banking," § 37. Stock, loans upon its own, provision as to. Appendix, tit. "Banking," §34. Stock of banks, limit on power to loan on. Appendix, tit. "Bank- ing," § 44. Stock of corporations, limit on right to invest in. Appendix, tit. "Banking," § 37. Stock of corporations, officer violating statute in regard to invest- ment in, guilty of felony. Appendix, tit. "Banking," § 38. Stock, preferred, banks not to have. Appendix, tit. "Banking," § 53. Stock, purchase of or investment in its own provision as to. Appen- dix, tit. "Banking," §§ 34, 37. Stock, violation of provision as to purchase of or loan upon its own stock, penalty for. Appendix, tit. "Banking," §§ 34, .37. Stockholders as depositors, priority of. Appendix, tit. "Banking," §21. Stockholders, capital and assets are security for. Appendix, tit. "Banking," § 21. 1012 INDEX, BANKS AND BANKING.. II. Banking Act of 1909. (Continued.) Stockholders, depositors have prioritv over. Appendix, tit. "'Bank- iug," § 21. Stockholder's liabilitv cannot be waived. Appendix, tit. "Banking," §40. Stockholders, list of. Appendix, tit. "Banking," § 17. Stockholders, limitation of actions against by superintendent of bank. Appendix, tit. "Banking," § 136. Stockholders' meeting, calling of bv superintendent of banks. Ap- pendix, tit. "Banking," § 135. Superintendent of banks, appointment and term of office. Appendix, tit. "Banking," § 120. Superintendent of banks, authority of where bank ceases to do busi- ness and rights of bank. Appendix, tit. "Banking," § 136a. Superintendent of banks, chief deputy or examiner not to be bor- rowers. Appendix, tit. "Banking," § 121. Superintendent of banks, chief deputy of, qualifications of. Appen- dix, tit. "Banking," § 121. Superintendent of banks, chief deputy, powers and duty in absence of superintendent, inability to act or vacancy in office. Ap- pendix, tit. "Banking," § 121. Superintendent of banks, chief deputy, salary and oath. Appendix, tit. "Banking," § 121. Superintendent of banks, chief officer of state banking department. Appendix, tit. "Banking," § 120. Superintendent of banks, emploA'ees of, enumerated. Appendix, tit. "Banking," § 121. Superintendent of banks, employees of, limit upon expenditures for. Appendix, tit. "Banking," § 121. Superintendent of banks, employees of, not to be interested in banks. Appendix, tit. "Banking," § 121. Superintendent of banks, employees of, salaries of. Appendix, tit. "Banking," § 121. Superintendent of banks, investigation of bonds for investment by savings banks. Appendix, tit. "Banking," § 61a. Superintendent of banks may limit amount of deposits by commercial banks with other banks. Appendix, tit. "Banking," § 85. Superintendent of banks may take possession of bank, when. Appen- dix, tit. "Banking," § 136. Superintendent of banks, neglect by, provision as to repealed. Ap- pendix, tit. "Banking," § 143. Superintendent of banks, not to be interested in any bank. Appen- dix, tit. "Banking," § 120. Superintendent of banks, oath and bond of. Appendix, tit. "Bank- ing," § 120. Superintendent of banks, salary of. Appendix, tit. "Banking," § 120. Superintendent of banks taking possession of bank, powers and duties of. Appendix, tit. "Banking," § 136. Superintendent of banks taking possession, right of bank to apply to superior court to enjoin. Appendix, tit. "Banking," § 136. Surplus, charging losses to. Appendix, tit. "Banking," § 21. Surplus, converting into paid-up capital stock. Appendix, tit. "Bank- ing," § 21. Surplus, larger, creation of. Appendix, tit. "Banking," § 21. Surplus, amount of. Appendix, tit. "Banking," § 19. Surplus, what portion of profits paid into. Appendix, tit. "Bank- ing," § 21. INDEX. 1013 BANKS AND BANKING. II. Banking Act of 1909. (Continued.) Term "bank," wlio may not use. Appendix, tit. "Banking," § 12. Title of act. Appendix, tit. "Banking," § 1. Title insurance companies. See Title Insurance Companies. Trust companies doing title insurance business not to do banking business. Appendix, tit. "Banking," § 22. Trust companies, bond, not required to give. Appendix, tit. "Bank- ing,'' § 94. Trust companies, capital, amount paid up required before certificate issued. Appendix, tit. "Banking," § 100. Trust companies, capital required where doing a banking business. Appendix, tit. "Banking," § 106. Trust companies, compensation of. Appendix, tit. "Banking," § 90. Trust companies, confidential communications, disclosures of. Ap- pendix, tit. "Banking," § 10.3. Trust companies defined. Appendix, tit. "Banking," § 6. Trust companies, departmental business, doing, to comply with pro- visions governing the departments. Appendix, tit. "Banking," §106. Trust' companies, deposit of money in by executor, assignee, receiver, etc., on order of court and discharge of. Appendix, tit. "Bank- ing," § 91. Trust companies, deposit of money in, by public administrator, with- drawal of, and discharge of administrator. Appendix, tit. , "Banking," §§ 92, 93. Trust companies, deposit of personal assets in by executor, guardian, receiver, etc., and reduction of bond. Appendix, tit. "Banking," §93. Trust companies, deposits with treasurer. Appendix, tit. "Banking," §§ 96, 97. Trust companies, deposits with treasurer, abstracts of title in case of. Appendix, tit. "Banking," § 99. Trust companies, interest on deposit with treasurer, right to receive. Appendix, tit. "Banking," § 98. Trust companies, interest payable by. Appendix, tit. "Banking," §95. Trust companies, investments, laws governing. Appendix, tit. "Bank- ing," § 105. Trust companies, investments, liability for. Appendix, tit. "Bank- ing," § 94. Trust companies, mortgage of realty to state treasurer. Appendix, tit. "Banking," § 97. Trust companies not to advertise as savings bank. Appendix, tit. "Banking," § 49. Trust companies, oath and affidavit of, how taken. Appendix, tit. "Banking," § 90. Trust companies, ofiS.cers, liability of. Appendix, tit. "Banking," § 90. Trust companies, report of trusts held. Appendix, tit. "Banking," §101. Trust companies, retirement from business, showing required and proceedings on. Appendix, tit. "Banking," § 102. Trust companies, "trust," efifeet of use of word. Appendix, tit. "Banking," § 104. Trust companies, "trust," use of word prohibited to whom. Appen- dix, tit. "Banking," § 104. Trust companies, what companies are. Appendix, tit. "Banking," §90, 1014 INDEX. BANKS AND BANKING. II. Banking Act of 1909. (Continued.) Trust companies, what companies may act as trustee. Appendix, tit. "Banking," § 90. Trust companies. See Trust Companies. Trust department, deposits by with other departments. Appendix, tit. "Banking," § 25. Trustees under deeds of trust not subject to supervision of superin- tendent of banks. Appendix, tit. "Banking," § 101. "Trustee," use of a misdemeanor. Appendix, tit. "Banking," § 104. Trust funds not to be counted as part of reserve. Appendix, tit. "Banking," § 32. Trust funds not to be mingled with other assets. See Appendix, tit. "Banking," § 32. Trust funds, violation of provisions as to mingling a felonv. Appen- dix, tit. "Banking," § 32. Trusts, inspection and supervision of. Appendix, tit. "Banking." §101. Trusts, private, direction that it be subject to provisions of bank act. Appendix, tit. "Banking," § 101. Unincorporated, provision as to repealed. Appendix, tit. "Banking," § 13. Violation of law bv bank, proceedings in case of. Appendix, tit. "Banking," § 131. Who subject to provisions of bank act. Appendix, tit. "Banking," § 12a. BASTARDS. See Legitimacy. Acknowledging, and receiving into family, effect of, §§ 230, 13S7. Acknowledgment of, inheritance by and from in case of, § 1387. Adoption of, §§ 224, 280. Children, legitimate where divorce granted or marriage annulled, §§ 84, 1387. Custody and earnings of, mother entitled to, § 200. Father, ordering maintenance of by, § 196a. Father as well as mother liable for support of, § 196a. Heir to mother, § 1387. Heir to one acknowledging himself to be father, § 1387. Inheritance by, § 1387. Inheritance from, § 1388. Kindred of parents when only inherits from, § 1387. Legitimation of, § 230. Legitimized by marriage of parents, § 215. Proof of illegitimacy, § 195. BELL. Sounding, duty and liability of railroad respecting, § 486. BENEFICIARY. See Trusts. BENEFIT. Consent of party entitled to, necessary to transfer of burden, § 1457. He who takes must bear burden, § 3521. Voluntary acceptance of, is assumption of burden, § 1589. BENEFIT CORPORATIONS. See Eeligious, Social, and Benevolent Cor- porations. Articles of incorporation, what to set out, § 594. Consolidation of debts by several corporations other than for profit, procedure for, § 605, INDEX. 1015 BENEFIT CORPORATIONS. (Continued.) Consolidation of. See Religiou.s, Social and Benevolent Corporations. Cumulative voting, § 307. Directors or trustees, number of, § 305. Fraternal societies exempt from insurance laws, § 451. Insurance, mutual life, etc., §§ 437-452. See Mutual Benefit and Life Associations; Mutual Life, Health, Accident and Annuity Insur- ance on Assessment Plan. Records to be open to inspection, § 378. BENEFIT SOCIETIES. See Mutual Benefit and Life Associations; Mu- tual Benefit Societies; Mutual Life, Health, Accident and An- nuity Insurance on Assessment Plan. Not governed by laws relating to insurance corporations, § 451. Not governed by laws relating to mutual assessment corporations, § 453p. Not insurance corporations, § 451. BENEVOLENT ASSOCIATIONS. * See Benefit Societies; Religious, So- cial, and Benevolent Corporations. Bequests to, limitation on power to make, § 1313. Not governed by laws relating to insurance corporations, § 451. Not insurance corporations, § 451. BICYCLE. As baggage, § 2181. BIGAMY. Ground for nullifying marriage, § 82. BIDS. See Auctions; Sales. BILL OF EXCHANGE. See Negotiable Instruments. BILL OF LADING. Anv reasonable number to be given consignor, § 2130. Assignment of, §§ 2127, 2128. Bona fide holders, rights of, § 2127. Carrier may demand surrender before delivery, § 2132. Carrier not liable for more than value stated in, § 2200. Conditions in limiting liability, effect of, § 2176. Consignor entitled to, § 2130. Defined, § 2126. Delivery to holder of, exonerates carrier, § 2131. Effect of accepting from carrier, § 2176. Effect of on carrier's rights and duties, § 2129. Indorsement and transfer of, §§ 2127, 2128. Indorsement, delivery without, where payable to bearer, § 2128. Limitations in, effect of, § 2176. Limitations in, signature, when necessary, § 2176. Negotiable, is, §§ 2127, 2128. Refusal to give, effect of, § 2130. Refusal to give to consignor, liability, § 2130. Surrender of, carrier may demand before delivery, § 2132. Title to freight passes to indorsee, § 2127. To be given consignor, § 2130. To trulv express contract of carriage, § 2130. Transfer of by delivery, § 2128. 1016 INDEX. BILL OF SALE. Grant includes, § 1053. BILLS AND NOTES. See Negotiable Instruments. BISHOP. Mar become a corporation sole, § G02-. BLANK Liability of one signing negotiable instrument in blank, § 3125. BOARDINa-HOUSE KEEPER. See Innkeepers. BOARDS OF TRADE. See Chambers of Commerce, Boards of Trade and Mechanics' Institutes. Act validating acknowledgments by. Appendix, tit. "Acknowledg- ments." BONA FIDE PURCHASER. Apparent principal cannot show "lie is surety against, § 2382. Bill of lading, of, rights of, § 2127. Contract not reformed as against, § 3399. Deed cannot be shown to be subject to defeasance, as against, § 2925. Grant not conclusive against, § 1107. Grant of propertv subject to trust, when deemed absolute in favor of, § 869. Implied or resulting trust not to affect, § 856. Mortgagee, rights against unrecorded conveyance, § 1214. Negotiable instrument, of, not affected bv want of consideration, §3122. Negotiable instrument, of, rights of, §§ 3124, 3125. Negotiable instrument, of, who is, § 3123. Presumption in favor of. on purchase of propertv from husband or wife, § 164. Eevocation of gift causa mortis, effect on, § 1151. Eights of, as against unrecorded instrument, §§ 1107, 1214. Specific performance in case of, § 3395. Title of, from one claiming by succession, effect of will, § 1364. Title of on purchase from one in possession, § 1142. Trustee, from, rights where trust omitted from conveyance, § 869. Vendor's lien does not affect, § 3048. BONDS. See Guaranty; Indemnity; Suretyship. As legal investments for savings banks. Appendix, tit. "Banking," §§ 61, 61a. Building and loan corporations may invest in what, § 647. Burned, of corporation, proceedings to duplicate, § 329. Cemeteries, corporations may issue, § 611. Corporations for giving, act governing. Appendix, tit. "Bonds." Indemnity, bond of, on re-establishing destroj'ed negotiable instru- ment, § 3415. Indemnity on transfer of stock by non-resident, § 326. Insurance companies may invest funds in what bonds. § 421. Issuance by corporation, restrictions upon, §§ 359, 456. Mortgage insurance corporations may invest in what bonds, § 453ee. Negotiable instrument, is. § 3095. Non-residents, may be required of, on transfer of stock, § 326. Negotiable, bonds payable to bearer are, notwithstanding conditions in instrument securing same, § 3088. Eailroad may issue, § 456, INDEX. 1017 BONDS. (Continued.) Eailfoad, sinking fund to pay, § 457. Savings and loan corporations may invest in what, § 574. Sureties on, when are called bail, § 2780. BOOKS. Mining corporation, of. See Mining Corporations. Of corporation. See Corporations, XI. BORROWER. See Hiring; Loan. BOTTOMRY. Change of possession not necessary, § 3440. Defined, § 3017. Due, loan becomes, when, § 3026. Insurable interest is reduced by, § 2660. Interest, court may reduce rate if exorbitant, § 3022. Interest, rate of, that may be charged, § 3022. Is subject to law of liens, § 2877. Laches, lien lost by, § 3027. Lender's rights when no necessity of bottomry existed, § 3023. Lien is independent of possession, § 3027. Lien lost if not enforced in reasonable time, § 3027. Lien, priority over others, § 3028. Liens, priority between, §§ 2897, 3029. Liens, subject to provisions of chapter on, § 2877. Master, right of, to hypothecate freight-money, § 3021. Master, right of, to hypothecate ship, §§ 3019, 3020. Not affected by law of mortgages, § 2942. Owner's right to hypothecate ship, § 3018. Owner, right of, to hypothecate freightage, § 3018. Personal liability, stipulation for, void, § 3024. Preference over other liens, § 3028. Priority between bottomry liens, §§ 2897, 3029. Recovery in case of total or partial loss, § 3023. Recovery of money loaned, § 3025. Respondentia. See Respondentia. Value in marine insurance where hj'pothecation by, § 2736. BOUNDARY. Coterminous owners bound to maintain, § 841. Miping claims, of. See Mines and Mining. Road as, § 831. Street as, § 831. Transfer of land bounded by highway passes what, § 1112. Waters as, rights of owners, § 830. Ways as, § 831. BREACH OF PROMISE. Chastity, want of, justifies, § 62. To marry, damages for, § 3319. BRIDGE. Rights and duties of wagon-road corporation concerning, § 514. Statutes governing bridge corporations apply where owned bv indi- vidual, § 531. Water company's duty to maintain, § 551. BRIDGE, FERRY, WHARF, CHUTE,' AND PIER CORPORATIONS. Annual report, penalty for failure to make, and action hy district attorney for, § 530. .1018 INDEX. BRIDGE, FERRY, WHARF, CHUTE, AND PIER CORPORATIONS. (Continued.) Annual report, president and secretary to make; § 530. Annual report, publication of, § 530. Annual report, what to contain, § 530. Commencement and completion, time for, § 529. Corporate existence ceases, in what contingencies, § 529. Destruction, time for reconstruction, § 529. Ferry to be running within what time, § 529. Franchises, when forfeited, § 529. License to be obtained from supervisors, § 528. Non-user, effect of, § 529. Report, failure to make, penalty for, § 530. Report, failure to make, proceedings in case of, § 530. Report, publication of, § 530. Report to be made annually, § 530. Report, what to show, § 530. Report, who to make, § 530. Statutes relating to, apply where bridge, ferrj-, wharf, chute, or pier built by private individual, § 531. Tolls not to be taken until supervisors grant authority, § 528. Works to be completed and in running order, in what time, § 529. BROKER. See Agency. Real estate, statute of frauds, effect of, on agreement employing, § 1624. BUILDING AND LOAN CORPORATIONS. See Savings and Loan Cor- porations. Act relating to non-profit co-operative corporations does not apply to, § 653za. Articles of incorporation, what to state, § 633. Business of accumulating savings of shareholders and loaning same to be carried on under this title, § 644. Capital, of what consists and how accumulated, § 634. Capital stock, guaranty or nonwithdrawable, amount to be issued be- fore installment or full paid investment certificates issued, § 634, subd. e. Capital stock, may be formed without, § 648a. Capital stock, without, working capital accumulated by membership shares, § 648a. Capital stock. See post, Shares, this subject. Certificates of, what to state, § 633. Certificates of stock, taxation on issuance of, § 6481-^. Checking accounts not to be carried by, § 633. Co-operative business associations, provisions relating to do not apply to, § 653 1. Corporations, what included as, § 648. Dividends, providing fund for, § 641. Directors, illegal loans by, punishment for, § 637. Directors, loans to forbidden, § 637. Directors, majoritv may be selected from holders of guarantee stock, § 634, subd. f." Election to continue business under code, rights and liabilities, § 646. Exempt from execution, shares up to $1,000, are, § 643. Foreign, deposit by, securities may be withdrawn and others sub- stituted, § 646. Foreign, deposit required of, § 646. • INDEX. 1019 BUILDING AND LOAN CORPORATIONS. (Continued.) Foreign, fund deposited to be paid only to residents on final judg- ments, § 646. Foreign, non-compliance with statute, agent doing business guilty of misdemeanor, § 646. Foreign, guarantee fund for protection of residents, § 646. Foreign, license and fee before doing business, § 646. Formation of, authorized, § 633. Free shares, payment of, § 636. Free shares, retiring, § 635. Free shares, what are, § 634. Guarantee stock, may be formed without, § 648a. Guarantee stock, without, issuing membership shares in place of, § 648a. Guarantee stock, without, working capital accumulated by member- ship shares, § 648a. Guarantee stock. See post. Shares, this title. Includes what corporations, § 648. Infant may hold shares through parent, guardian, etc., § 643. Installment stock, retirement of, § 635. Investments, limit on amount of, § 647. Investments may be made in what securities, § 647. Investments, supervision and control of, § 647. Loans by, limit on right to make, § 637. Loans, interest on, § 638. Loans, repayment of, § 638. Loans, security for, § 638. Loans, maturity on default in paj'ment, applying withdrawal value, §639. Loans, maturity on default in payment, option as to, § 639. Maturity of stock, § 636. May sell, lease, or mortgage property purchased, § 640. Member, how one becomes, § 643. Member, infant may hold shares in, through parent, guardian, etc., §643. Members, who may become, § 643. Membership shares, formation of with, authorized, § 648a. Membership shares, reincorporation and issuance, authorized, § 648a. Membership shares, reincorporation and issuance of, procedure on, § 648a. Membership shares, rights, liabilities, powers, and privileges, § 648a. Membership shares, value of, § 648a. Matured shares, business may be taken over if demands unpaid for two years, § 642a. Matured shares, receipts to be applied to if unpaid for a year, § 642a. Officers, loans illegal by, punishment for, § 637. Officers, loans to, forbidden, § 637. Official supervision and control of, § 644. Payment, arrears in, forfeiture for, § 639. Payment, arrears in, option to declare loan due and proceedings to collect, § 639. Payment, arrears in, option to declare loan due, withdrawal value to be applied, § 639. Payment, arrears in, proceedings on, § 639. Payment of free shares, § 636. Perjury, false statements in reports, § 645. Purposes of, § 633. Profits and losses, apportionment of, § 641. 1020 INDEX. BUILDING AND LOAN CORPORATIONS. (Continued.) Real estate upon which it has a mortgage, may purchase, § 640. Real estate upon which it has a mortgage, may sell, lease, or convey § 640. Eeincorportion and issuance of membership shares, § 648a. Report, annual, delivering to members, § 644. Report, annual, verification, § 644. Report, copies to be given shareholders, § 64.5. Report, failure to make, penalties for, and disposition of, §§ 644,645. Report, false statement in, perjury, § 645. Report, further, bank commissioners may require, § 644. Report, further, form and contents of, § 645. Report, further, when to be made, § 645. Report, to be made annually, § 645. Report, verification of, § 645. Report, what to show, § 645. Reserve fund, amount of and how provided, § 641. Reserve fund, at all times available for losses, § 641. Reserve fund required of, § 634, subd. e. Retirement of free shares, § 635. Retirement of installment stock, § 635. Shareholders, issuance of certificates to, § 634. Shares, capital to be divided into, § 634. Shares, dividends on, § 634. Shares, exemption from execution, § 643. Shares, free, payment of, § 636. Shares, free, retiring, § 635. Shares, free, what are, § 634. Shares, full paid, issuance of in classes, § 634. Shares, full paid, rights of holder of, § 634. Shares, full paid, what are, § 634. Shares, guarantee, majority of directors mav be selected from holders of, § 634, subd. f. Shares, guarantee, may be formed without, § 648a Shares, guarantee, without, issuing membership shares in place of, § 648a. Shares, guarantee, without working capital accumulated by member- ship shares, § 648a. Shares, guarantee stock, conditions and liabilities attaching to, § 634, subd. d. Shares, guarantee stock, remains as fixed, permanent and guarantee capital, § 634, subd. d. Shares, guarantee stock, to be kept unimpaired, § 634, subd. d. Shares, guarantee stock, what is, § 634, subd. d. Shares, how paid for, § 634. Shares, installment, either serial or permanent, § 634. Shares, in what form may be issued, § 634. Shares, juvenile, what are, § 634. Shares, matured and canceled, § 636. Shares, matured, payment of, § 636. Shares, minor may hold, § 643. Shares, pass-books or juvenile, fees, fines or forfeitures not charge- able against, § 634, subd. c. Shares, pass-books or juvenile, matured value of, § 634, subd. c. Shares, pass-books or juvenile, what are, § 634, subd. c. Shares, pass-booksor juvenile, withdrawal of . § 634, subd. c. Shares, pass-book, what are, § 634. INDEX. 1021 BUILDING AND LOAN CORPORATIONS. (Continued.) Shares, permanent, dividends may be credited in pass-books of mem- bers, § 634. Shares, permanent, may be issued any time, § 634. Shares, prior series, not to be issued after issue of shares of new series, § 634. Shares, pledged, what are, § 634. Shares, serial, dues on, § 634. Shares, serial or permanent, issuance in classes, § 634. Shares surrendered or canceled become property of association and may be reissued, § 634. Shares up to $1,000 exempt from execution, § 643, Supervision and control of, § 644. What corporations are, § 648. Withdrawal, amount one is entitled to receive on, § 642. Withdrawal, manner of, § 642. Withdrawal of free shares or certificates, receipts to be applied' to demands unpaid for year, § 642a. Withdrawal of free shares or certificates, business may be taken over if demands unpaid for two years, § 642a. Withdrawal of part of accumulations without reducing number of shares, § 643. Withdrawal, right of, generally, § 642. Withdrawal, right of, where stock pledged, § 642. Withdrawal value, applving on declaring loan due for arrears in pay- ment, § 639. Withdrawals, payments of, limit of amounts that can be applied on, §642. Withdrawals, payments of, order of, § 642. Working capital accumulated by membership shares, where issued without capital or guarantee stock, § 6^8a. BUILDINGS. See Halls; Lodges. BULLS. Lien of owner of bull used for propagation, and how enforced, §§ 3062-3064. BURDEN. Consent of party entitled to benefit necessary to transfer of, § 1457. He who takes benefit must bear, § 3521. Voluntary acceptance of benefit is assumption of, § 1589. BURDEN OF PROOF. To show want of consideration, § 1615. BURIAL. See Cemeteries; Cemetery Corporations. Eight of, §§ 801, 802. BURNT RECORDS AND DOCUMENTS. See Fire. Bonds, burned, of corporation, procedure to obtain duplicates. See Corporations, XL Corporation, of, restoring. See Corporations, XI. Negotiable instrument, destruction of by fire, action for re-execution, indemnity, § 3415. • Private writings destroyed by fire, re-establishment and re-execution of, § 3415. BUSINESS. Good-will of. See Good-will. 1022 INDEX. BUSINESS ASSOCIATIONS. See Co-operative Business Associations; Co-operative Business Corporations. BUSINESS CORPORATIONS. See Co-operative Business Corporations. BUSINESS DAYS. See Holidays. What are, § 9. BY-LAWS. See Corporations; Eeligious, Social and Benevolent Corpora- tions. c CANAL CORPORATIONS. See Water and Canal Corporations. CANALS. Maintenance of flow of water to canal intakes. See "S^'aters. CANCELLATION. Acceptance of bill of exchange, cancellation of, § 3198. Alteration of contracts, in general. §§ 1697-1701. Deed, of, does not revest title, § 1058. Duplicate, alteration or destruction of. effect of, § 1701. Extinction of contract by, §§ 1699, 1700. In part, when allowed, § 3-1:14. Instruments, of, in general, §§ 3412-3414. Material part, of, extinction of contract by, § 1700. Void, instrument obviously void, whether canceled, § 3413. Void or voidable instrument, when canceled, § 3412. Will, of, §§ 1292, 1293. Written instrument, when canceled, § 3412. CABE. See Negligence. Great, borrower to use, § 1886. Great, carrier of messages for reward, § 2162. Great, employee for his own benefit, § 1979. Great, ship-master, § 2043. Ordinary, carrier of property for reward, § 2114. Ordinary, depositary for hire to use, § 1852. Ordinary, employee for reward, § 1978. Ordinary, gratuitous carrier of persons, § 2096. Ordinary, hirer, § 1928. Ordinary, trustee, § 2259. Ordinary, voluntary agent, § 2078. Slight, gratuitous carrier of property, § 2114. Slight, gratuitous depositary to use, § 1846. Slight, gratuitous employee, § 1975. Utmost, carrier of messages by telegraph, § 2162. Utmost, carrier of persons for reward to use, § 2100. CARELESSNESS. See Negligence. CARGO. See Shipping. CARRIERS. See Baggage; Carriers of Goods; Carriers of Messages; Carriers of Passengers; Marine Carriers; Railroad Corporations; Telegraph Companies; Telephone Companies. Are inland or marine, § 2086. Bill of lading. See Bill of Lading. Chattel mortgage of property of, to be recorded where, § 2961. Common, defined, § 2168. INDEX. 1023 CARRIERS. (Continued.) Common, who are, § 2168. Compensation entitled to reasonable, § 2173. Compensation, payment of in advance, § 2173. Compensation, refusal to pay, § 2173. Contract of carriage defined, § 2085. Damages for not receiving freight, messages, or passengers, § 3315. Delay, damages for, § 3317. Delays, unreasonable, carriage to be without, § 2104. Delivery, liability for nondelivery, § 3316. • General average. See General Average. Gratuitous, obligations of, §§ 2089, 2090, 2096, 2114. Inland, defined, § 2087. Inland or marine, are, § 2086. Insurable interest of, § 2548. Jettison. See Jettison. Kinds of, § 2086. Liability of, general rule, § 2194. Liability of, what excuses, § 2194. Limitation of liability, assent to be written, when, § 2176. Limitation of liability, assent to on accepting bill of lading, § 2176. Limitation of liability, can be made by special contract, § 2174. Limitation of liability, cannot be by general notice, § 2174. Limitation of liability, fraud, not allowed in case of, § 2175. Limitation of liability in bill of lading or ticket, effect of, § 2176. Limitation of liabilitv in bill of lading where value not stated, effect of, § 2176. Limitation of liability, negligence, not allowed in case of, § 2175. Limitation of liability, willful wrong, not allowed in case of, § 2175. Limitation of liability without notice of value, §§ 2177, 2200. Limiting liability, §§ 2174-2176. Marine. See Marine Carriers. Marine or inland, are, § 2086. Messages, of. See Carriers of Messages; Telegraph Corporations; Telephone Corporations. Must start on time, § 2172. Passenger carriers. See Passenger Carriers. Preferences not to be given, § 2170. Preferences to be given to state and United States, § 2171. Eeward, carriers without, obligations, §§ 2089, 2090, 2096, 2114. Telegraph company is not common carrier, § 2168. Time, must start on, § 2170. United States, preference to, § 2171. Who are common carriers, § 2168. Written contract, effect of, § 2176. CARRIERS OF GOODS. Act of God relieves of liability, § 2194. Act of the law, carrier liable for, if negligent, § 2195. Act of the law, not liable for, § 2194. Arrival of goods, duty of carrier after, and before delivery, § 2120. Bill of lading, not liable for more than value stated in, § 2200. Bills of lading. See Bills of Lading. Care and diligence required of, generally, § 2114. Connecting carrier, accepting freight for point beyond route, duty, §2201. ^ Connecting carrier, duty to deliver goods to, § 2201. Connecting carrier, liability ends on delivery to, § 2201. Connecting carrier, proof in case of loss of through freight. § 2202. 1024 INDEX. CARRIERS OF GOODS. (Coutinued.) Consignee defined, § 2110. Consignee's refusal to accept and remove, storage, § 2121. Consignee's refusal to receive goods, duty on, § 2121. Consign'or defined, § 2110. Consignor and consignee, conflicting orders of, § 2116. Damages for breach of obligation to deliver, § 3316. Damages for failure to receive goods, § 3315. Delay, damages for, § 3317. Delay, liable for, when negligent, § 2196. Delay, liable only when caused by want of ordinary care, § 2196. • Delay, when only liable for, § 2196. Delivery according to bill of lading exonerates carrier, § 2131. Delivery in part, apportionment of freightage, § 2141. Delivery, may demand surrender of bill of lading before, § 2132. Delivery not made, how carrier may exonerate himself, § 2121. Delivery not made, obligations of carrier, § 2120. Delivery of freight, manner of, §§ 211S, 2119. Deliver}- of freight, place of, §§ 2118, 2119. Delivery to connecting carrier, § 2201. Delivery to holder of bill of lading exonerates, § 2131. Directions, conflicting, between consignor and consignee, which to be obeyed, § 2116. Directions of consignor or consignee to be obeyed, § 2115. Exemption from liability, none when negligent, § 2195. Exemptions do not excuse if negligent, § 2195. Expense of transportation of thing sold, § 1755. Freight, arrival, notice, duty and liability of carrier after, § 2120. Freight, damages for breach of obligation to deliver, § 3316. Freight defined, § 2110. Freight, delivered to whom, §§ 2118. 2119. Freight, deliverv, manner of, §§ 2118, 2119. Freight, delivery, place of, §§ 211S, 2119. Freight, delivery to holder of bill of lading exonerates, § 2131. Freight, duty of carrier after arrival and before delivery, § 2120. Freight, not accepted, storage by carrier, § 2121. Freight not delivered, obligations of carrier, § 2120. Freight, notice of arrival, § 2120. Freight, notice of deposit in warehouse, § 2121. Freight, obligation to accept, § 2169. Freight, through, duties and liabilities in case of loss, §§ 2201, 2202. Freightage, additional on carriage farther or more expeditiously than agreed, § 2143. Freightage, apportionment by acceptance of part of goods, § 2141. Freightage, apportionment by contract, § 2140. Freightage, appointment where accepted short of place of deliverv, § 2142. Freightage, carrier "not liable for. when, § 2137. Freightage, consignee liable for. when, § 2138. Freightage, consignor liable for, when, § 2137. Freightage defined, § 2110. Freightage for natural increase of freight. § 2139. Freightage, lien for, §§ 2144, 2204. Freightage, marine insurance, in, §§ 2661-2663. Freightage, right to on receiving freight short of its destination, ^§ 2142. ■* Freightage, sale of perishables for,' right of, § 2204. Freightage, to be paid when, § 2136. INDEX. 1025 CARRIERS OF GOODS. (Continued.) Gratuitous, diligence required, § 2114. Inherent defects, etc., of property, not liable for loss from, § 2194. Inland carrier, liability of, § 2194. Inland carrier, liability of, what excuses, § 2194. Irresistible superhuman cause, liable for loss from where carrier negligent, § 2195. Irresistible superhuman cause, not liable for loss from, § 2194. Letters containing valuables, no liability for, where no notice, § 2177. Liability is excused by what acts or events, § 2194. Liability not greater than value stated in bill of lading, § 2200. Lien, has, for advances and services, § 2144. Lien, has, for freightage, § 2144. Limitation of liabilitv in bill of lading, where value not stated, eflfect of, §2176. Limitation of liability where no notice of value, §§ 2177, 2200. Limitation of liability. See Carriers. Loss of freight, carrier not liable for, when, § 2194. Loss of freight, carrier's liability for, § 2194. Loss of valuable papers or money, liability for, § 2177. Loss, proof in case of, § 2202. Loss through negligence, no exemption from liability, § 2195. Marine carriers. See Marine Carriers. Mortgage of property by, where to be recorded, § 2961. Negligence of, no exemption from liability in case of, § 2195. Notice of arrival, carrier to give, §§ 2120, 2121. Notice of value of articles, limitation on liabilitv without, §§ 2177, 2200. Perishables, may sell for charges, when, § 2204. Public enemies, acts of, relieve from liability, § 2194. Public enemies, liable for acts of where negligent, § 2195. Services of, other than of carriage and delivery, law governing, § 2203. Valuable articles, limitation on liability for, when no notice, § 2200. Valuables, no liability for, where no notice, § 2177. Warehouseman, carrier when liable as, § 2120. Who are, § 2168. Writings, valuable, liability for, § 2200. CARRIERS OF MESSAGES. Damages for breach of obligation to receive, § 3315. Duty to deliver, § 2161. Fixing times for transmission of messages, § 2208. Order of transmission of messages, § 2208. Postponement or refusal of messages, damages for, § 2209. Who are, § 216S. CARRIERS OF PERSONS. See Passenger Carriers. Baggage, amount of to be carried, § 2180. See Baggage. Mortgage of property by, where to be recorded, § 2961. CASUALTIES. See Accident Insurance. CATTIjE. Railroads, liability of, for injuries to, § 485. {CEMETERIES. Burial, right of, a servitude, §§ 801, 802. Cemetery corporations. See Cemetery Corporations. Civ. Code — 65 1026 INDEX. CEMETERIES. (Continued.) Establishing by corporation, § .595. Lots, disposal of, § 598. CEMETERY CORPORATIONS. Annual report, § 609. Bonds may be issued, § 611. Bonds, sixty per cent of proceeds of sales to be applied on, § 611. Burial, persons not interested or related cannot be buried without consent, § 613. Burial, right of where several owners of lot, § 613. Deeds by, manner of execution of. Appendix, tit. "Corporations." Improvement of grounds, § 616. Land acquired and disposed of, how, § 608. Lands, how may be paid for, §§ 608, 611. Land, how much may be held by, § 608. Lands, maps of, § 608. Lands, payment for, terms for lots and regulations not to be changed, §611. Lands, sale of, order for, how obtained, § 615. Lands, sale of, permitted, §§ 608, 615. Lands, sale of, procedure on, and showing required, §§ 608, 615. Lands, sale of, right of, § 615. Lands, sale of, terms and conditions, § 608. Lands to be held exclusively for cemetery. § 608. Lands, where to be situated, § 608. Lot, co-owners in, rights of, § 613. Lot inalienable after interment, § 613. Lot may be held by, on what trusts, §§ 612, 616. Lot owners previous to purchase, rights of, § 614. Lot, perpetual care of, § 612. Lot, rights and interests in, § 613. Lot, sale of, after disinterment, § 613. Lots, surveying, etc., § 608. Members eligible to vote and hold office, who are, § 609. Office, who eligible to, § 609. Perpetual care of lots, § 612. Personal property, may be held, and how much, § 610. Property held in trust, investment of proceeds, § 616. Property may be held in trust by cemetery corporations for what purposes, §§ 612, 616. Property may be held in trust, proceeds to be used, how, § 616. Report, annual, of directors, § 609. Eights where there are several owners of lot, § 613. Sale of lands, proceedings on, § 615. Surplus, how disposed of, § 610. Trust, property may be held in, for what purposes, §§ 612, 616. CERTAIN. That is certain which can be made certain, § 3535. CERTIFICATE. Deposit, general or special, issuing, § 576. Deposit, of, negotiable, §§ 3095, 3261. Deposits, of, savings and loan corporation, may issue, § 576. Appen- dix, tit. "Banking," § 64. Deposit, special, payment on, effect of, § 576. Deposit, transferability, § 576. False, by corporate officers, § 316. Indenture of apprenticeship, of, § 275. INDEX. ' 1027 CERTIFICATE. (Continued.) Marriage, of, §§ 73, 74, 79. Mortgage, of discharge of, filing, §§ 2939, 2940. Of proof of loss, under insurance, when dispensed with, § 2637. Of stock. See Corporations, XIII. Partnership under fictitious name, of, §§ 2466-2471. See Partnership. Proof of instrument, certificate of, what to state, § 1200. Restoration of lunatic, of, as evidence of legal capacity, § 40. Savings banks, issuance of, by, § 576. Appendix, tit. "Banking," § 64. That seaman exerted himself to save cargo, etc., § 2059. CERTIFICATE OF DEPOSIT. See Certificate. CHAMBERS OF COMMERCE, BOARDS OF TRADE, AND MECHAN- ICS' INSTITUTES AND KINDRED ASSOCIATIONS. Articles of incorporation, execution and filing, § 591. Assessments, manner. of levying and collecting, §§ 592c, 592d. Assessments, power to levy, and collect, § 592d. Business, not to engage in, § 591. By-laws, force and effect of, § 592c. By-laws, penalty for violation of, § 592e. By-laws, power to enact, § 591. By-laws, what to prescribe, § 592c. Capital stock, may have, when, § 592. Directors, powers which may be conferred on, § 592a. Executive committee, powers which may be conferred on, § 592a. Formation of, authorized, § 591. Formation of, manner of, § 591. Formation of, number of persons who may form, § 591. Formation of, when complete, § 591. Meetings, how called and conducted, § 592c. Meetings, quorum, § 592c. Members, expulsion and admission of, § o92c. Officers, agents, and servants, appointment and tenure of office, § 592c. Organization of, § 591. I*re-existing corporations entitled to benefit of code, § 592e. Pre-existing corporations, how become entitled to benefit of code, § 592e. Powers and liabilities of, §§ 591, 592b. Power to lease, acquire, and sell property, § 592b. Stock, certificates of, right to issue, § 592. Stockholders, rights, privileges, and obligations of, § 592. Succession, have, for what period of time, § 591. Trustees, powers which may be conferred on, § 592a. CHANGE OF NAME. See Names. CHARGE D'AFFAIRES. Acknowledgments outside of United States, may take, § 1183. CHARITABLE USE. Restrictions on power of bequeathing to, § 1313. CHARITY. Restrictions on power to bequeath to, § 1313. CHARTER-PARTY. See Shipping. Charterer, who may be,'§ 1959. Defined, § 1959. 1028 INDEX. CHARTER-PARTY. (Continued.) Insurable interest exists under, § 2663. Insurable interest of charterer, § 2665. Ship-master may enter into, in foreign port, § 2376. Ship's manager may enter into, § 2388. What rights in ship may be given under, § 1959. CHASTITY. Want of, avoids promise to marry, § 62. CHATTEL INTEREST. Defined, § 765. CHATTEL MORTGAGE. Acknowledged how, §§ 2957, 2963. Acknowledgment, necessity of, § 2957. Affidavit that it is made in good faith and without intent to defraud, § 2957. Attachment and sale of property, distribution of proceeds, § 297-0. Attachment of the property, proceedings on, §§ 2968-2970. Attachment, property may be taken on, § 2968. Certified, how, § 2963. Certified, must be. same as grant of realty, § 2957. Common carrier, mortgage where to be recorded, § 2961. Continuance on crop after severance, § 2972. Execution against the property, proceedings on, §§ 2968-2970. Execution, levy and sale under, distribution of proceeds, § 2970. Execution, property may be taken on, § 2968. Foreclosed how, § 2967. Foreclosure, right of, § 2967. Form of, § 2956. Fraudulent transfer, want of delivery, § 3440. Growing crop, continuance on after severance, § 2972. Lien on growing crop, continuance after severance, § 2972. Made upon property not authorized, effect of, § 2973. May be made upon what property, § 2955. Not conforming to statute, effect of, § 2973. Pledge, transfer of interest in personalty as security, when is, § 2924. Proof of, necessity and manner of, §§ 2957, 2963. Property in transit, where deemed to be, § 2960. Proved, how, § 2963. Eecorded how, § 2963. Eecorded in separate books, § 2963. Eecorded, must be, in what counties, § 2959. Eecorded, must be, same as grant of realty, § 2957. Eecorded where, when property belongs to carrier, § 2961. Eecorded where, when property in transit, § 2960. Eecording certified copies in other counties, § 2964. Eecording certified copy, effect of, § 2964. Eecording, where property in different places, § 2962. Eedemption, foreclosure of right of, § 2967. Eemoval of property from count j', effect of, §§ 2965, 2966. Eemoval of property, rights of mortgagee on, § 2966. Sale of the property under process, distribution of proceeds, § 2970. Ship, code sections not applicable. § 2971. Ship, mortgage where to be recorded, § 2958. Ships not subject to law of, when, § 2970. Ships, void as to creditors, etc., unless /ecorded, § 2958. Validity where made on property other than permitted by code, § 2973. INDEX. . 1029 CHATTEL MOETGAGE. (Continued.) Validity where not made in conformity to code, § 2973. Void as to creditors, etc., unless recorded, § 2957. Void as to creditors, etc., when, § 2957. What property may be the subject of, § 2955. CHATTEL REAL. See Estates for Years. Defined, § 765. Estate for life of third person is, § 766. Estate for years is, § 765. Limitation of power of suspension, § 770. May commence at future day, § 773. CHECK. See Baggage; Negotiable Instruments, VII. CHILD EN VENTRE SA MERE. See Infant; Parent and Child. Posthumous child takes as if living at testator's death, § 698. See Posthumous Children. Eights of, §§ 29, 698. Takes under will, when, § 1339. CHILDREN. See Infant; Parent and Child. Cruelty to, societies to prevent. See Societies for Prevention of Cruelty to Children and Animals. Posthumous, succession by. See Posthumous Children. CHINESE. License for marriage between and white not to issue, § 69. Marriage between, and whites forbidden, § 60. CHOSE IN ACTION. Defined, § 953. Descends to personal representatives, when, § 934. Presumption as to value of, § 3356. Sales of, when within statute of frauds, §§ 1624, 1739. Survivorship of, § 954. Transfer of, § 954. Warranty on sale of written instruments, § 1774. CHURCH. See Eeligious, Social and Benevolent Corporations. Eight of seat in as a servitude, §§ 801, 802. CHUTE, See Bridge, Ferry, Wharf, Chute and Pier Corporations. Statutes governing chute corporations govern when owned by in- dividual, § 531. CITIZENS. See Civil Eights. All to have equal rights in public places, § 51. Denial of equal rights to, punishment, § 52. CITY. See Municipal Corporations. Water companies' relations with, §§ 548, 549. CITY AND COUNTY. Word "county" includes, § 14. CITY RECORDER. Marriage', may solemnize, § 70. CIVIL CODE. See Code. CIVIL RIGHTS. All citizens to have equal rights in public places, § 51. Denial of equal rights to all citizens, punishment, § 52. 1030 INDEX. CIVIL RIGHTS. (Continued.) Parties deprived of, cannot contract, § 1556. Personal rights, enumeration of, § 43. Refusal of admission to places of amusement, damages, § 54. Refusal of admission to places of amusement unlawful, § 53. CLAIM AND DELIVERY. Possession of personal property, how recovered, § 3379. CLASS. Deceit upon class of persons, effect of, § 1711. Devise or bequest to, who included, §§ 1337, 1339. CLERK OF COUNTY. Acknowledgment, may take, § 1181. Articles of incorporation to be filed with, § 296. Certificate of formation of special partnership to be filed with, § 2480. Duty of, regarding marriage licenses, § 69. Duty of, where acknowledgment is taken by justice of peace, § 1194. Humane officers, record of appointments, duties as to and fees, § 607f. May take acknowledgment, § 1181. Must keep register of partnership names, § 2470. Notice of dissolution of special partnership to be filed with, § 2509. Petition for appraisement of homestead to be filed with, § 1247, CLERK OF COURT. Acknowledgment, clerk of court of record may take, § 1181. Of court of record may take acknowledgment, §§ 1181, 1182. Of supreme court may take acknowledgment, § 1180. CODE. Cited how, § 21. Construction where it derogates from common law, § 4. Construed liberally, § 4. Continuation of statutes and common law, § 5. Corporations, continuance of under code, proceedings on, § 288. Corporations, effect of code on, § 288. Corporations, laws relating to, effect of code on, § 288, Definition of terms, § 14. Divisions of, § 1. Establishes law on subject to which it relates, § 4. In abrogating statutes does not revive others, § 20. Instruments executed before, not affected by, §§ 1205, 1206. Pending actions not affected by, § 6. Private statute, how affected by, § 20. Provisions of, subordinate to intention of parties to contracts, § 3268. Repeal by, does not affect existing actions or rights, § 20. Repeal by, does not revive former law, § 20. Repeals other statutes, how far, § 20. Retroactive, not, § 3. Retroactive, not, as to instruments made before, §§ 1205, 1206. Retroactive, not as to wills, § 1375. Statutes in existence at adoption of, how affected by, § 20. Statutes not contained in force because consistent with, § 20. Statutes on subjects covered by repealed, § 20. Terms used in defined, § 14. Title of, § 1. Vested rights not affected by, § 6. Waiver of, by parties to contract, right of, § 3268. When takes effect, § 2. INDEX. « 1031 CODICILE included uuder will, § 14. Execution of, republishes will, § 1287. Eevoeation of will revokes, § 1305. COHABITATION. When prevents nullifying marriage, § 82. COLLATERAL CONSANGUINITY. See Consanguinity. COLLATERAL SECURITY. See Pledge. COLLATERAL WARRANTY. Abolished, § 1115. Liability of heir or divisee under, § 1115. COLLECTION. Agent for, duties of, § 2021. Effect of warranty of, § 2800. Partner acting in liquidation may make, § 2461. COLLEGES AND SEMINARIES OF LEARNING. Any number of persons maj- incorporate, § 649. Articles of incorporation to contain what, § 649. By-laws and ordinances, § 650. Consolidation authorized, § 652. Consolidation, board of trustees consists of trustees of old institu- tions, § 652. Consolidation, board of trustees, how constituted and elected, § 652. Consolidation, board of trustees, minimum number, § 652. Consolidation, board of trustees, number may be reduced after five years, § 652. Consolidation, board of trustees, number of, how reduced, § 652. Consolidation, debts and liabilities not affected by, § 653. Consolidation, franchises of old institutions expire, § 653. Consolidation, how effected, § 652. Consolidation, property conveyed to new institution, rights, powers, and liabilities as to, § 653. Consolidation, property to be conveyed to new corporation, § 653. Consolidation, trustees report annually, § 653. Existing institutions, reincorporation under code authorized, § 651. Existing corporations, reincorporation under code, notice of meeting, proof of, § 651. Existing corporations, reincorporation under code, proceedings on, §651. Incorporation of, any number of persons may incorporate, § 649. Incorporation of, authorized, § 649. Meeting of trustees, statement in minutes that notice given con- clusive, § 651. Minutes of meeting, certification of, § 651. Names of subscribers, § 649. Ofiiee of, where located, § 650. President, professors, tutors, and officers, of appointment and salaries, §650. Property given to aid, names of subscribers, § 649. Property, power to acquire, lease, mortgage, manage, or dispose of, § 650. Transfer of property from existing to new colleges, § 651. Trustees, additional, § 650. Trustees, death, vacancy, or expiration of term, § 650. Trustees, majority constitute quorum, § 650. 1032 INDEX. COLLEGES AND SEMINARIES OF LEARNING. (Continued.) Trustees, names and residence, § 649. Trustees, nominations by graduates, § 6o0. Trustees, number of, §§ 649, 650. Trustees, organization, § 650. Trustees, powers of, enumerated, § 650. Trustees, president of, § 650. Trustees, qualifications of, § 649. Trustees, quorum, § 650. Trustees, term of office, § 650. Trustees, vacancies, how filed, § 650. Trustees, vacancies, right of graduates to fill, § 650, subd. 2. Wills, taking under, § 1275. COLLISION. From breach of rules of navigation implies willful default, § 972. From breach of rules of navigation, right of recovery, § 971. Loss by, how apportioned, § 973. Eules for avoiding, § 970. COLLUSION. Defined, § 114. Divorce denied for, § 111. Presumption of, lapse of time, § 125. COMBINATIONS. Live-stock, to obstruct sale of, prevented. Appendix, tit. "Animals." COMMERCE. Chambers of. See Chambers of Commerce, Boards of Trade, Mechanics' Institutes and Kindred Associations. COMMERCIAL BANKS. See Banks and Banking, II. COMMISSIONERS. Acknowledgment, right to take, § 1181, 1182, 1183. Eailroad, act organizing and defining powers of. Appendix, tit. "Eailroads." Transportation, act relating to. Appendix, tit. "Railroads." COMMISSION MERCHANT. See Factors. COMMON CARRIERS. See Baggage; Carriers; Carriers of Goods; Carriers of Persons; Carriers of Messages; Marine Carriers; Eail- road Corporations; Telegraph Companies; Telephone Companies. Letters of credit, license from superintendent of banks necessary before issuing. Appendix, tit "Banking," § 13. Letters of credit, license to issue, fee for. Appendix, tit "Banking," §13. Letters of credit, right to issue. Appendix, tit. "Banking," § 13. COMMON LAW. Code, continuation of, § 5. Statutes in derogation of, construction of, § 4. COMMON STOCK. See Corporations, XIII. COMMUNITY PROPERTY. See Divorce; Husband and Wife; Property. COMPENSATION. Adult child serving and being supported by parent, § 210. Appraisers of homestead, of, § 1258. INDEX. 1033 COMPENSATION. (Continued.) Assignee for creditors, of, § 3471. Borrower, of, §§ 1892, 1891. Death of employer, after, § 1998. Defined, § 3274. Depositary for hire, of, for fractions of week or month, § 1853. Depositary, voluntary, of, § 2078. Detriment, defined, § 3282. Employee dismissed for cause, of, § 2002. Employee quitting for cause, of, § 2003. Finder, of, § 1867. For loan, called interest, § 1015. For mistake, when allowed, § 3391. Gratuitous carriers, duties of, §§ 2089, 2090, 2096, 2114. Law, given by, § 3275. Lienor not entitled to, § 2892. Managing owner of ship not entitled to, § 2072. Of common carrier, § 2173. Partial failure to perform, on, § 3392. Partner not entitled to, § 2413. Eescission of contract, on, § 3408. Service continued beyond two years, in case of, § 1980. Service without employment, in ease of, § 2078. Trustee, of, §§ 2273, 2274. Unlawful acts or omissions, recoverable for, § 3281. Voluntary interference with property, in case of, § 2078. COMPOSITION. Of author, property in, §§ 665, 980-985. COMPOUND INTEREST. Where trustee omits to invest funds, § 2262. COMPRESSED AIR. Steam road, right to use, as motive power, § 4'65a. COMPROMISE. See Accord and Satisfaction. Partner in liquidation may compromise claims, § 2461. COMPUTATION. Of time, § 10. CONCEALMENT, Consent obtained by, contract not enforceable, § 3391. Defined, § 2561. Effect of, § 2562. Insurance, in. See Insurance, VI. Suppression of a fact, when constitutes deceit, § 1709. Suppression of truth as fraud, § 1572. When constitutes fraud, § 1572. CONDITION. See Conditional, Alienation, conditions restraining, effect of, § 711. See Alienation. Attached to proposal, effect of, § 1582. Concurrent, defined, § 1437. Concurrent, performance, §§ 1439, 1498. Enjoyment of property is upon, when, § 707. Forfeitures, involving strictly construed, § 1442. Impossible, void, § 1441. Kinds of, §§ 708, 1435. Marriage, condition in restraint of, effect of, § 710. 1034 INDEX. CONDITION. (Continued.) Ma}' inure to stranger, § 1085. Obligations, in. See Obligations. Offer of performance may be made dependent upon performance of, § 1498. Offer of performance to be free from, § 149-4. Payment, conditions that may be imposed before, § 3137. Performance excused on refusal by other party to perform, § -1440. Performance of, as an acceptance of proposal, § 1584. Performance of, essential, when, § 1439. Precedent and subsequent, § 70S. Precedent, defined, §§ 70S, 1346, 1436. Precedent, failure to fulfill, revocation of contract, § 1587. Precedent, grant on, becomes absolute when, § 1110. Precedent, performance of, § 1498. Precedent, performance of essential, § 1439. Precedent, requiring performance of wrongful or unlawful act, effect of, § 709. Precedent, what, § 708. Precedent, wills, in, §§ 1346-1348. Repugnant, void, §§ 711, 1441. Right of re-entrv for breach of condition subsequent can be trans- ferred, § 1046. Subsequent, defined, §§ 708, 1349, 1438. Subsequent, grant on, reconveyance on defeat of, § 1109. Subsequent, what, § 708. Subsequent, wills, in, § 1349. Time of creation of interest, § 749. Unlawful, void, § 1441. CONDITIONAL. See Condition. Delivery cannot be made to grantee or agent, § 1056. Devise or bequest, what is, § 1345. Devise or bequest, when vests, § 1347. Limitation, remainder when deemed to be, § 778. Obligation, involving forfeiture, how construed, § 1442. Obligation, liability of guarantor on, § 2808. Obligation, performance of, excused, § 1440. Obligation, prerequisites to enforcing, § 1439. Obligation, when is, § 1434. Offer of performance, not to be, § 1494. Will, when may be denied probate, § 1281, CONDONATION. See Divorce. CONFESSION OF JUDGMENT. Partner has no power to confess judgment, § 2430. CONFLICT OF LAWS. Assignment for creditors in another state, § 3451. Contracts, law governing interpretation of, § 1646. Injunction to stay proceedings in another state, § 3423. Marriages out of state valid, § 63. Personalty, law governing, § 946. , Realty, law governing, § 755. Wills, validity and interpretation of, § 1376. Wills, foreign, validity of, § 12S5. CONFUSION OF GOODS. See Accession. Ownership of things formed by, §§ 1025-1032, i INDEX. 1035 CONGRESS. Laws of, govern carriers by sea, § 2088. Laws of, govern seamen, § 2066. Liability of marine carrier regulated by, § 2198. CONJOINT WILLS. A^alidity of, § 1279. Revocation of, § 1279. CONNIVANCE. See Divorce. Contract obtained through, void, § 1689. Presumption of from lapse of time, § 125. CONSANGUINITY. Collateral consanguinity defined, § 1390. , Computed how, §§ 1389-1394. Degrees in collateral line, how computed, § 1393. Degrees in direct line, how computed, § 1392. Degrees of kindred, how computed, § 1389. Direct and collateral, §§ 1390-1393. Direct ascending line, § 1391. Direct consanguinity, what, § 1390. Direct descending line, § 1391. Half blood, inheritance by kindred of, § 1394. CONSENT. See Contract, III. Acquiescence in error takes away right of objecting, § 3516. Adoption, of child's parents necessary, § 224. Adoption, of child, when necessary, § 225. Adoption, of parents not necessary when, § 224. Adoption, of wife, necessary for, § 223. Ado£tion, where child in orphan asylum, § 224. Apprenticeship of child, for, §§ 265, 266. Beneficiary, of, necessary to allow trustee to hold adverse interest, § 2232. Child, written, of mother, necessary to transfer custody of, § 197. Contract may be rescinded by mutual, § 1689. Corporate meeting held by consent, proceedings at, §§ 317, 318. Depositor, of, necessary to use of deposit by depositary, § 1835. Divorce, corrupt consent, constitutes connivance, § 112. Divorce, corrupt, how manifested, § 113. Guaranty, not necessary to create, § 2788. Landlprd, of, necessary to attornment to stranger, § 1948. Marriage, alone does not constitute, § 55. Marriage, how manifested and proved, § 57. Marriage, incapacity to, when ground for annulling, § 82. Marriage, of parties necessary to, § 55. Marriage, who are capable of giving consent to, § 56. Mutual, sufficient consideration for agreement to separate, § 160. Of husband not required for transfer of wife's separate property, § 162. Of party entitled to benefit necessary to transfer of burden, § 1457. One consenting to act is not wronged by it, § 3515. Partnership, of all, necessary to creation of, § 2397. Partner, unanimous, necessary to admission of new, § 2397. I Principal, of, necessary to release of factor, § 2030. I Rescission of ratification made without, § 2314. ^ Separation by, not desertion, § 99. Separation, to, a revocable act, § 101. Thing obtained without, of owner, to be restored, § 1712. 1036 INDEX. CONSENT. (Continued.) Trust, mutual, necessary to create, § 2251. Voluntary interference with property without, duties and rights on, § 2078. CONSIDERATION. See Contracts, IV. Agency, not necessary, § 2308. Burden of proof to invalidate, § 1615. Effect of transfer where paid by third person, § 853. Executed or executory, may be, § 1609. Executory, how ascertained, §§ 1610, 1611. Executory, may be left to decision of third party, § 1610. Executory, may be regulated by any specified standard, § 1610. Executory, need not be specified, § 1610. Executory, not necessary that contract furnish means of ascertain- ing, § 1610. Executory, subject to what provisions of code, § 1609. Existing legal obligation as, § 1606. Failure of, rescission, § 1689. Good, defined, § 1605. Guaranty, for, §§ 2792, 2793. How ascertained, where contract does not determine, § 1611. How ascertained where left to discretion of third person, § 1611. Hlegal in part, effect of, §§ 1598, 1608. Impossibility of ascertaining, effect of, §§ 1612, 1613. Lawful, must be, § 1607. Lawful, what is, §§ 1607, 1667. Leaving amount of to decision of third person, §§ 1610, 1611. Minor to restore, on disaffirmance, § 35. Moral obligation, § 1606. Negotiable instrument, for, presumption of, § 3104. Negotiable instrument, want of, effect of, § 3122. New, altering contract without, § 1697. Not necessary on voluntary transfer, § 1040. Of contract between spouses for separation, § 160. Ratable proportion when performance of obligations prevented, § 1514. Return of by minor, on disaffirming contract, § 35. Voluntary transfer, in case of, §§ 1040, 1146. Written instrument presumptive of, § 1614. CONSIGNMENT. Bills of lading. See Bills of Lading. Consignee defined, § 2110. Consignor, defined, § 2110. Delivery of, §§ 2118-2122. Directions, conflicting, between consignor and consignee, which to be obeyed, § 2116. Directions of consignor or consignee to be obeyed, § 2115. Freightage, liability for, §§ 2136-2144. Insolvency of consignee, what is, § 3077. Refusal of consignee to receive goods, duty of carrier on, § 2121. Special contract of carrier, effect of, § 2176. Stoppage in transit, §§ 3076-3080. CONSOLIDATION. By corporations other than for profit, § 605. _ Colleges and seminaries of learning. See Colleges and Seminaries of Learning. i INDEX. 1037 CONSOLIDATION. (Continued.) Consolidated bonded debt by several corporations, creation of, § 359. • Corporations, of. See Non-profit Co-operative Agricultural, Viti- cultural and Horticultural Associations; Non-profit Co-operative Corporations. Mining corporations, § 5S7a. Railroad corporations, of. See Railroad Corporations. Religious, social and benevolent corporations, of. See Religious, Social and Benevolent Corporations. CONSTRUCTION. See Contracts, VII; Conveyances; Words and Phrases. Code to be liberally construed, § 4. Codes. See Codes. Condition involving forfeiture strictly construed, § 1442. Contemporaneous construction is the best, § 3535. Contracts. See Contracts, VII. Conveyances, of. See Conveyances. Interpretation giving efiiect preferred to one making void, § 3541. Interpretation must be reasonable, § 3542. Joint authority, of, § 12. Particular expressions qualify general, § 3534. Words and phrases, of, § 13. CONSTRUCTIVE. Delivery, § 1059. Fraud defined, § 1573. Notice defined, §§ 18, 19. Notice, record of conveyance is, § 1213. , CONSTRUCTIVE NOTICE. See Recording. Record of conveyance is, § 1213. CONSUL. Of United States may take acknowledgments, § 1183. Vice-consul or consular agent may take acknowledgments, § 1183. CONTEMPORANEOUS CONSTRUCTION. Is the best, § 3535. CONTEMPT. Officer taking proof of instrument may punish for, § 1201. CONTINGENT INTEREST. See Future Interest. Birth of posthumous child defeats, when, § 739. Defined, § 695. Estate not terminated by determination of precedent interest before happening of contingency, § 742. Future interests, how may be defeated, § 740. Future interest is, when, § 695. Not void because improbable, § 697. CONTINGENT REMAINDER. How created, § 773. On prior' remainder in fee, § 772. On term of years, § 776. CONTINUANCE. Of corporate existence, §§ 287, 401. CONTINUING GUARANTY. See Guaranty. 1038 INDEX. CONTRACTS. I. Definition and kinds of. II. Who may contract; parties to. III. Essential elements; offer; acceptance; consent; conditions iu; waiver of code provisions; effect of code on. IV. Consideration. V. Execution and delivery; proof of; reduction to writing; seal; when take effect. VI. Validity of; object of contracts. VII. Construction of. VHI. Performance. 1. Generally. 2. Time of. 3. Excuse, prevention or waiver of. 4. Offer of. 5. Partial. IX. Alteration; cancellation; release; extinction. X. Actions on; liability under. Obligations. See Obligations. Eeformation of. See Eeformation. Eescission of. See Rescission of Contracts. Specific performance of. See Specific Performance. Statute of frauds. See Statutes of Frauds. Particular contracts. See particular title. I. Definition and kinds of. Alternative. See Obligations. Defined, § 1549. Executed, is what, § 1661. Executory, is what, § 1661. Express, defined, § 1620. Express or implied, contracts are, § 1619. Implied, defined, § 1621. Joint and several. See Joint. II. Who may contract; parties to. Civil rights, parties deprived of, cannot contract, § 1556. Infants, competency of to contract, §§ 1556, 1557. Infants. See Infants. Insanity revokes proposal, § 1587. Lunatics, competenc}' of to contract, §§ 1556, 1557. Lunatics. See Insane Person. Parties, competent, essential, §§ 1550, 1558. Parties, identification of, necessary, § 1558. Parties, substituting, § 1531. Parties, who competent to contract, §§ 1556, 1557. Who may contract, §§ 1556, 1557. III. Essential elements; offer; acceptance; consent; conditions in; waiver of code provisions; effect of code on. Acceptance by performance of conditions, § 1584. Acceptance, communicated how, § 15S2. Acceptance, communication of consent when deemed complete, § 1583. Acceptance, complete, when, § 15S3. Aceptance, conditions attached to, to be conformed to, § 15S2. Acceptance, failure to accept within time allowed, § 1587. INDEX. 1039 CONTRACTS. III. Essential elements; offer; acceptance; consent; con- ditions in; waiver of code provisions; effect of code on. (Con- tinued.) Acceptance, failure to fulfill conditions precedent, § 1587. Acceptance, must be absolute, § 1585. Acceptance, qualified, effect of, § 1585. Acceptance, receipt of consideration is, § 1584. Acceptance, voluntary, of benefits of transaction, is assumption of obligations, § 1589. Acceptance, what must be, § 1585. Acceptance when deemed complete, § 1583. Code does not affect instruments made before, §§ 1205, 1206. Conditions in. See Obligations. Consent, apparent, when not free, § 1567. Consent, communicated how, § 1581. Consent, communication of, when deemed complete, § 1583. Consent, essential to contract, § 1550. Consent, essentials of, § 1565. Consent, fraud, duress, menace, mistake, etc., when deemed obtained, by, § 1568. Consent, fraud or concealment obtained by, contract not enforced, §3391. Consent, mistake, obtained by, contract when enforced, § 3391. Consent, mistake, or surprise, obtained by, contract not enforced, §3391. Consent, mutual, when deemed to be without regard to the fact, § 1580. Consent, mutual, when only is, § 1580. Consent, not free, not absolutely void, § 1566. Consent, not free, rescission, § 1566. Consent, obtained by duress, §§ 1567, 1689. Consent, obtained by fraud, §§ 1567, 1689. Consent, obtained by menace, §§ 1567, 1689. Consent, obtained by mistake, §§ 1567, 1689. Consent, obtained by undue influence, §§ 1567, 1689. Consent, ratification of contract voidable for want of, § 1588. Consent, voluntary acceptance of benefits of transaction, § 1589. Consent, when deemed fully communicated, § 1583. Elements essential to, § 1550. Offer, death revokes, § 1587. Ratification of, when voidable for want of consent, § 1588, Revocation of offer by death, § 1587. Revocation by lapse of time. § 1587. Revocation, failure to fulfill conditions precedent, § 1587. Revocation, insanity of proposer, § 1587. Revocation of offer, right of, § 1586. Revocation of proposal made how, § 1587. Revocation of proposal, time for, § 1586. Waiver of code provisions respecting, §3268. IV. Consideration. See Consideration. Acceptance of is acceptance of proposal, § 1584. Ascertained, how, when contract does not fix or determine, § 1611. Ascertained how, where left to discretion of third persons, § 1611. Burden of proof to invalidate, § 1615. Burden of proof to show want of consideration, § 1615. Effect of impossibility of ascertaining, §§ 1612, 1613. Effect of its illegality in part, § 1608. 1040 INDEX, CONTRACTS. IV. Consideration. (Continued.) Exclusive method of ascertaining which is impossible, effect of, §§ 1612, 1613. Executed or executory, may be, § 1609. Executory, may be left to decision of third party, § 1610. Executory, may be regulated by any specified standard, § 1610. Executory, need not be specified, § 1610. Executory, not necessary that contract furnish means of ascertain- ing, § 1610. Executory, subject to what provisions of code, § 1609. Existing legal obligation as a consideration, § 1606. Failure of in material respect, rescission, § 1689. Failure of in whole or in part, rescission for, § 1689. Good, defined, § 1605. Good, what is, §§ 1605, 1606. Illegal in part, effect of, §§ 1598, 1608. Inadequate, contract not enforced, § 3391. Moral obligation as, § 1606. Must be lawful, § 1607. Kescission for failure of, § 1689. Sufficient consideration is essential to contract, § 1550. Void, consideration becoming from any cause, rescission, § 1689. Written instrument presumi)tive of, § 1614. V, Execution and delivery; proof of; reduction to writing; seal; when take effect. Delivery of, takes effect on, § 1626. Delivery, provisions of chapter on transfers apply to, § 1627. Fraud, prevention of reduction to writing by, enforcement of, § 1623. Oral, contracts may be, unless writing expressly required, § 1622. Oral negotiations merged in writing, § 1625. Proof of, by subscribing witnesses, §§ 1195-1197. Proof of, how made when not acknowledged, § 1195. See Acknowl- edgments. Sealed and unsealed, distinctions abolished, § 1629. Seal, how affixed, § 1628. Takes effect on delivery, § 1626. Writing supersedes oral negotiations or stipulations, § 1625. Written, what contracts must be. See Statute of Frauds. VI. Validity of; object of contracts. Ascertainable, contract when void if object is not, § 1598. Ascertainable, object must be, §§ 1596, 1598. Cancellation of void and voidable contracts, §§ 3412, 3413. Condition precedent requiring performance of wrongful act, effect on, §709. Consent, effect of fraud, mistake, duress, etc., § 1567. Consent not free, contract not void but subject to rescission, § 1566. Consent, when deemed obtained by fraud, duress, mistake, etc., § 1568. Consideration, executory, need not be specified or ascertainable from contract, § 1610. Consideration, impossibility of ascertaining, effect of, §§ 1612, 1613. Contra bonos mores, unlawful, § 1667. Contract one cannot lawfullj- perform, not enforceable, § 3390. Contrary to express provisions of law, are unlawful, § 1667. Contrary to good morals, unlawful, § 1667. Damages, contract fixing in advance, validity of, §§ 1670, 1671. INDEX. 1041 CONTBACTS. VI. Validity of; object of contracts. (Continued.) Director of corporation, contract to relieve from liability, illegal, §327. Duress consists in what, § 1569. Exempting one from liability for fraud, unlawful, § 1668. Exempting one from liability for violation of law, unlawful, § 1668. Exempting one from willful or negligent acts, unlawful, § 1668. Fraud, actual, a question of fact, § 1574. Fraud, actual, what constitutes, § 1572. Fraud, constructive, defined, § 1573. Fraud, effect of, on oral contract not in writing through fraud, § 1623. Fraud, exempting one from liability for, unlawful, § 1668. Fraud, is actual or constructive, § 1571. Fraud, prevention of reduction to writing by, enforcement of con- tract, § 1621. Illegal in part, effect of, §§ 1598, 1599, 1608. Impossibility avoids contract, § 1598. Impossibility, object must be possible and ascertainable, §§ 1596, 1598. Impossibility is what, § 1597. Impossibility, what deemed to be possible, § 1597. Impossible, contract when void if object is, § 1598. Indemnity against wrongful acts, effect of, §§ 2773, 2774. Insurance contracts, validity of. See Insurance, IV. Lawful, object of contract must be, § 1596. Lawful, unlawful in part, effect of, § 1599. Lien, coTntract creating, providing for forfeiture void, § 2889. Lien, contract in restraint of right of redemption, void, § 2889. Liquidated damages, provision for, §§ 1G70, 1671. Marriage, contract in restraint of, void, § 1676. Menace consists in what, § 1570. Mistake may be of fact or law, § 1576. Mistake of fact, what is, § 1577. Mistake of foreign law is mistake of fact, § 1579. Mistake of law, what is, § 1578. Object, contract restricted to evident object, § 1647. Object, lawful, essential to, § 1550. Object of, is what, § 1595. Object of, must be ascertainable, §§ 1596, 1598. Object of, must be lawful, §§ 1596, 1598, 1599. Object of must be possible, §§ 1596, 1598. Object of, to be lawful and possible, § 1596. Parties,' identification of, necessary, § 1558. Possible, object must be, §§ 1596, 1598. Public policy, contracts against, §§ 1667, 1668. Eatification of contract voidable for want of consent, § 1588. Restraint of marriage, in, void, § 1676. Restraint of trade, on dissolution of partnership, § 1675. Restraint of trade, on sale of good-will, § 1674. Restraint of trade, validity of contracts in, §§ 1673-1675. Servant, contract by, waiving liability for negligence void, § 1970. Statute of frauds. See Statute of Frauds. Stipulation in bottomry for personal liability, void, § 3024. Undue influence defined, § 1575. Undue influence, what constitutes, .§ 1575. Unlawful contract, rescission of, § 3406. Unlawful, contract, when void and when voidable where object is, §§ 1598, 1599. Civ. Code — 6G 1042 INDEX. CONTRACTS. VI. Validity of; object of contracts. (Continued.) Unlawful, guarantor not liable if contract is, § 2810. Unlawful in part, effect of, §§ 1598, 1599, 1608. Unlawful, when, §§ 1667, 1668. Void as to principal, liability of guarantor where contract is, § 2810. Void, because unlawful, impossible, unascertainable, §§ 1598, 1599. Void, contract fixing damages, effect of, §§ 1670, 1671. Void, contract to relieve directors or trustees from liability, § 327. Void in part, effect of, §§ 1598, 1599, 1608, 1613. VII. Construction of. Accident, contract not expressing intent because of, intent governs, § 1640. Ambiguities interpreted against promisor, §§ 1649, 1654. Code provisions subordinate to provisions of contract, § 3268. Conflict of laws, law governing, § 1646. Construed against promisor, § 1654. Each part helps to interpret other parts, § 1641. Effective, contract construed so as to make it, § 1643. Effect to be given to every part, § 1641. Effect to be given to mutual intention, § 1636. Erroneous parts disregarded, when, § 1640. Explaining by circumstances, § 1647. Explaining by matter to which it relates, § 1647. Expression of some incidents in contract excludes others, § 1656. Failure to express real intention through fraud, accident, or mistake, how construed, § 1640. Fraud, contract not expressing intent because of, intent governs, § 1640. General intent, particular clause subordinate to, § 1650. Giving effect preferred, § 3541. Implied, necessary incidents are, § 1656. Implied, reasonable stipulations may be, § 1655. Incidents, expression of some excludes others, § 1656. Incidents, what implied in contract, § 1656. Inconsistent words rejected, § 1653. In favor of contract, § 1643. In general, § 1636. In sense promisor believed promise relied, § 1649. Intent governs where writing fails to express it through fraud, mis- take, or accident, § 1640. Intent, mutual, interpretation to give effect to, § 1636. Intention, ascertained from language, § 1638. Intention, ascertained from writing alone, generally, § 1639. Intention, giving effect to, § 1636. Intention, rules for ascertaining, where doubtful, § 1637. Interpretation, giving effect preferred to interpretation making void, § 3541. Joint and several, when is, § 1659. See Joint. Language of contract to govern, § 1638. Law and usage of place of performance to govern, § 1646. Law and usage of place where made governs where no place of per- formance, § 1646. Mistake, contract not expressing intent because of, intent governs, § 1640. Necessary incidents implied in, § 1656. Original parts control parts copied from form, § 1651. Particular clause, subordinate to general intent, § 1650. INDEX. 1043 CONTRACTS. VII. Construction of. (Continued.) Particular expressions qualify general, § 3534. Printing, writing controls, § 1651. Promisor, ambiguities interpreted against, §§ 1649, 1654. Eeasonable, must be, § 3542. Reasonable stipulations are implied in, § 1655. Repugnancies between writing and printing, § 1651. Repugnancies reconciled, how, § 1652. Repugnancy between original part and copied part, § 1651. Restricting to evident object, § 1648. Restricting to tilings concerning wliich parties intended to contract, § 1648. Several contracts taken together, when, § 1642. Technical words, of, §§ 1644, 1645. Time of performance, § 1657. Uncertainty construed most strongly against whom, §§ 1649, 1654. Uncertainty presumed caused by whom, § 1654. Uniformity of, whether contract public or private, § 1635. Whole contract to be taken together, § 1641. Words having special meaning by usage, § 1644. Words to be understood in usual sense, § 1644. Words used in technical sense, construction of, §§ 1644, 1645. Writing controls printing in, § 1651. Writing, failing to express intent through fraud, etc., disregarded, when, § 1640. VIII. Performance. 1. Generally. Alternative obligation. See Obligations. Application of general performance, § 1479. Application of performance. See Obligations. Conditional obligations. See Conditional. Condition concurrent, § 1498. Condition precedent, § 1498. Condition precedent, when necessary, § 1439. Creditor, performance according to directions of, effect of, § 1476. Full performance by obligor or another for him extinguishes obliga- tion, § 1473. In mode directed by creditor, sufficient, § 1476. Joint creditor, to, extinguishes except where deposit by co-owners, § 1475. Joint obligation, performance under direction of one creditor, effect of, § 1476. Joint obligor, performance by extinguishes obligation of all, § 1474. Offer of performance stops interest, § 1504. Payment, performance when called, § 1478. Performance of conditions of proposal, on acceptance, § 1584. Retention of thing which creditor refuses to accept, effect of, § 1505. Specific performance. See Specific Performance. 2. Time of. Delay in and compensation for, § 1492. Delay in, eft"ect of where it can be compensated, § 1492. Essence of contract, where not stipulated to be, § 1492. Holiday, when time for falls on, § 11. Time of offer of, §§ 1490, 1491. Time of offer. See post, VIII, 4. Where act is in its nature capable of being done instantly, § 1657. Where no time specified, § 1657. 1044 INDEX. CONTRACTS. VIII. Performance. (Continued.) 3. Excuse, prevention or waiver of. Act of God excuses performance, § loll. Excused, performance is by what acts, §§ 14-iO, 1511. Prevention by creditor, effect of, §§ 1511, 1512. Prevention other than by act of creditor, ratable proportion of con- sideration, § 1514. Public enemies, acts of, excuses, § 1511. Eefusal to accept, before offer, effect of, § 1515. Waiver of demand of performance by refusal to perform, § 3004. 4. Offer of. Ability and willingness essential, § 1495. Ability and willingness, when equivalent to, § 3130. By whom to be made, § 1487. Compensation for delay, with, § 1492. Condition precedent, offer may be made to depend upon due per- formance of, § 1498. Conditions, may be made dependent upon performance of, § 1498. Conditions concurrent, of, when necessary, § 1439. Conditions, to be free- from, § 1494. Custody and care of thing offered, § 1503. Effect of, on accessories of obligations, § 1504. Exonerates surety, by any person, § 2839. Extinguishes obligation, § 1485. Extinguishes obligations for payment of money, when, § 1500. Good faith, to be in, § 1493. Interest, stops running of, § 1504. Lien redeemed by, § 2905. Manner of, § 1493. Objections to waived, if not stated, § 1501. Partial, offer of, of no effect, § 1486. Party must be able and willing to perform, § 1495. Passes title to personal property under executory agreement of sale, § 1141. Produced, thing offered need not be, unless offer accepted, § 1496. Receipt may be required upon, § 1499. Refusal to accept performance before, effect of, § 1515. Retention of thing which creditor refuses to accept, effect of, § 1505. Separate, thing offered to be kept, § 1497. Time of, §§ 149U, 1491. Time of, delay in and compensation for, § 1492. Time of, delay in, effect of where it can be compensated, § 1492. Title to thing offered passes when, § 1502. To whom made, § 1488. Unconditional, must be, § 1494. Vests in creditor, thing offered, §§ 1502, 1503. When excused, §§ 1440, 1511. W^hen to be made, §§ 1490, 1491. Where made, §§ 1488, 1489. Whom made to, § 1488. Who to make, § 1487. 5. Partial. Effect of, § 1477. Extinguishes obligation when, § 1524. Guarantor, effect on, of principal's accepting, § 2822. Lien, does not extinguish, § 2912. INDEX. 1045 CONTEACTS, VIII. Performance. 5. Partial. (Coutiuued.) Makes oral contract of sale valid, § 1741. Offer of, of no effect, § 1486. IX. Alteration; cancellation; release; extinction. Alteration of duplicate, effect of, § 1701. Alteration of parol contract, how may be made, § 1697. Alteration of verbal, consideration not necessary, § 1697. Alteration of written, how made, § 1698. Alteration, unauthorized, extinction by, § 1700. Alteration of. See Alteration. Cancellation, extinction by, § 1699. Cancellation of instruments, §§ 3412-3414. Cancellation of. See Cancellation. Destruction, extinction by, §§ 1699, 1700. Destruction of duplicate, effect of, § 1701. Duplicate, destruction or cancellation of, effect of, § 1701. Extinction by alteration, § 1700. Extinction by cancellation, §§ 1699, 1700. Extinction by performance. See ante, VIII, 1. Extinguished, how, § 1682. Full performance by obligor or another for him extinguishes obliga- tion, § 1473. TsTovation. See Novation. Offer of payment and deposit of money in bank, extinguish obligation, § 1500. Release of obligation, §§ 1541-1543. See Release. Rescission. See Rescission. Signature, destruction or cancellation of, § 1699. X. Actions on; liability under. Assuming obligation by accepting benefits, § 1589. Benefit, one taking, must bear burden, § 3521. Breach of contract, when not enjoined, § 3423. Damages, measure of, for breach of, § 3300. Damages, measure of, for breach of contract to pay liquidated sum, § 3302. Damages must be certain, § 3301. Damages, nominal, when recoverable, § 3360. Damages, reasonable, only recoverable, § 3359. Damages. See Damages. Proof of execution of instrument not acknowledged, how made, § 1195. Proof of instrument. See Acknowledgments; Instrument. Relief, specific and preventive, § 3274. Third person, enforcing contract for benefit of, § 1559. CONTRIBUTION. See Suretyship. Between joint or joint and several obligors, § 1432. General average loss, to, § 2152. Indemnity to insured who has a right of, § 2746. Insurance, double, contribution in case of, § 2642. Insurance, marine, in case of partial or average loss, § 2642. Insurance, where premium to be returned by several insurers, §§ 2621, 2622, 2745. Insurance, where several policies on property, § 2757. Release of joint debtor as affecting right to, § 1543, Surety's right to, § 2848. 1046 ^ INDEX. CONTRIBUTORY NEGLIGENCE. See Negligence. Bars right to relief, § 1714. CONTROLLER OF STATE. Corporation to transmit selection of right of way to, § 478. Duty where property escheats to state, § 1406. CONVERSION. By lienor extinguishes lien, § 2910. ■ Damages for, §§ 33.36, 3337, 3338. Equitable, when takes place, § 1338. In general, §§ 1712, 1713. Lien extinguished by, § 2910. One guilty of, must restore property, § 1712. Restoration to be without demand except in cases of mistake, § 1713. Wrongfully using materials of another, wrongdoer liable in damages, § 1033. CONVEYANCES. See Deeds; Transfers. After-acquired title passes, § 1106. Agent may give covenant of warranty, § 2324. Agreement to convey binds one to execute sufficient conveyance, § 1731. Agreement to convey, covenants, §§ 1733, 1734. Agreement to convey, effect of, § 1731. Agreement to convey, specific performance, § 1741. Agreement to convey, statute of frauds, § 1741. Attorney in fact, how to execute, § 1095. Bona fide purchaser or encumbrancer, rights of subsequent, § 1107. Cancellation of grant does not retransfer title, § 1058. Cancellation of instruments, in general, §§ 3412-3414. Certificate of proof of execution, what to state, § 1200. Changed names, by persons with, § 1096. Code does not affect conveyances made before, §§ 1205, 1206. Community property, of, wife's consent, § 172. Conclusive, as to parties and privies, how far, § 1107. Condition precedent, grant on, effect of, § 1110. Conditions subsequent, reconveyance on non-performance, § 1109. Conditions in. See Conditions. Constructive delivery, § 1059. Covenants, agent's authority to give, § 2324. Covenants, agreement to give, s 1733. Covenants, form of, § 1734. Covenants, implied, § 1113. Covenants running with land, §§ 1460-1468. Covenants, who bound by and who not, §§ 1465, 1466. Covenants. See Covenants. — Damages for breach of agreement to buy, § 3307. Damages for breach of agreement to convey, § 3306. Damages for breach of covenants, § 3304. Damages for breach of covenants against encumbrances, § 3305. Date of delivery, presumption as to, § 1055. Deemed mortgage, when, § 2924. Defect in, curing, § 1207. Defined, § 1215. Delivery, constructive, what deemed to be, § 1059. Delivery, date of, presumption as to, § 1055, . Delivery in escrow, § 1057. Delivery necessary, § 1054, INDEX. 1047 CONViJYANCES. (Continued.) Delivery, redelivery does not revest title, § 1058. Delivery to grantee or agent cannot be conditional, § 1056. Delivery to third persons, § 1059. Easements pass with, § 1104. Encumbrance includes what, § 1114. Escrow, definition, § 1057. Escrow, delivery in, § 1057. Executed before code, law governing, §§ 1205, 1206. Execution may be proved by handwriting when, § 1198. Execution of, how proved when not acknowledged, § 1195. Fee presumed to pass, § 1105. Fee, words of inheritance unnecessary to, § 1072. Fee, words of succession unnecessary to, § 1072. Form of, § 1092. Fraudulent, §§ 1227-1231. Fraudulent. See Fraudulent Conveyances. "Grant," covenants implied from use of word, § 1113. "Grant" includes what instruments, § 1053. Grant includes whatever essential to its use, § 3522. Grant. See Grant. Heirs, and issue, interpretation of, § 1071. Heir's conveyance good, unless will proved or notice of devise filed within four years, § 1364. Highway, transfer bounded by, passes what, § 1112. Homestead conveyed, how, § 1242. How property transferred, § 1091. Incidents follow thing transferred, § 1084. Incidents, transfer of, does not pass principal thing, § 1084. Infant's, effect of, § 33. Inheritence, words of, not necessary to pass fee, § 1072. Interest subsequently acquired passes by operation of law, § 1106. Interpretation against grantor, § 1069. Interpretation, grant by public, in favor of grantor, § 1069. Interpretation, grants interpreted as other contracts are, § 1066. Interpretation of heirs and issue, § 1071. Interpretation of, in general, § 1066. Interpretation of, irreconcilalDle provisions, § 1070. Interpretation of limitations, § 1067. Interpretation, recourse to recitals, § 1068. Interpretation,, reservation, in favor of grantor, § 1069. Irreconcilable provisions, interpretation, § 1070. Issue and heirs, interpretation of, § 1071. Judgment proving instrument, entitles instrument to record, § 1204. Lien for unpaid price, vendor has, § 3046. Lien of vendee, § 3050. Lien of vendor, §§ 3046-3048. Lien of vendor, against whom valid, § 3048. Lien of vendor, waiver of by transfer of contract, § 30.47. Limitation in, how only controlled, § 1067. Married woman's, acknowledged, how, § 1093. Married woman's, effect of, §^1187. Married woman's, how executed, § 1093. Married woman's, power of attorney acknowledged how, § 1094. Modes of transfer, § 1091. Mortgage, transfer deemed a, when, § 2924. Name, change of, conveyance in case of, § 1096. Operation of law, by, § 1091. Operation of law, subsequently acquired title passes by, § 1106, 1048 INDEX. CONVEYANCES. (Continued.) Owner for life, by, § 1108. Owner for years, by, § 1108. Power of attorney by married woman, § 1094. Proof of, action for, and effect of the judgment, §§ 1203, 1204. Proof of execution, certificate of, § 1200. Eecitals resorted to in interpretation, when, § 1068. Eeconvey title, surrendering or canceling grant does not, § 1058. Record as notice, § 1213. Record as notice, curative act, § 1207. Recording. See Recording. Redelivery does not retransfer title, § 1058. Remainders, of, attornment, § 1111. Rents, of, attornment, § 1111. Requisities of, § 1091. Reservation interpreted in favor of grantor, § 1069. Reserving power to revocation, §§ 1229, 1230. Reversion, of, attornment, § 1111. Revocation, reserving power of, §§ 1229, 1230. Statute of frauds §§ 1091, 1624. Stranger, grant may inure to, § 1085. Subscribing witnesses, manner of proving by, §§ 1196-1199. Succession, words of, unnecessary to pass fee, § 1072. Third person not named, grant mav inure to Ijenefit of, § lOSo. Title, what passes, § 1083. Transfer, modes of, § 1091. Unrecorded, goods between parties. § 1216. Unrecorded, void as to whom, § 1214. Warranties, liability on, § 1115. Warranties, lineal and collateral abolished, § 1115. Warranty, agent may give covenant of, § 2324. What law governs where made before code, §§ 1205, 1206. Will, effect on, §§ 1301, 1303, 1304. Words of inheritance not necessary, § 1072. Writing, what transfers to be in, §§ 1091, 1624. CO-OPERATIVE ASSOCIATIONS. See Associations; Benefit Societies: Boards of Trade; Chambers of Commerce, Boards of Trade, Mechanic's Institutes and Kindred Associations; Co-operative Business Associations; Co-operative Business Corporations; Co- operative Non-profit Agricultural, Viticultural, and Horticultural Associations; Non-profit Co-operative Corporations; Pioneer Society; Protective .Associations. CO-OPERATIVE BUSINESS ASSOCIATIONS. See Co-operative Busi- ness Corporations. Articles of association, subscribing and acknowledging, § 653d. Articles of association to be prepared, § 653d. Articles of association, what to state, § 653d. Articles of association, where to be filed. § 653d. Attorney-general may inquire into right to do business, § 653k. By-laws, amendment of, § 053e. By-laws and amendments, to be recorded and kept in ofllce, § 6o3e. By-laws, certified copy to be filed with county clerk, § 653e. By-laws, majoritj- of members to adopt, § 653e. By-laws to be adopted within forty days, § 653e. By-laws to be written in book and subscribed by members, § 653e. Bv-laws to provide amount of indebtedness that can be incurred, § 653c. iNDEl:?^. 1049 CO-OPERATIVE BUSINESS ASSOCIATIONS. (Continued.) By-laws, what may provide, § GoSa, 653e. Business, mode and manner of conducting, § 653e. Capital stock, to have none, § 653b. Certificate, when to be issued by secretary of state, § 653d. Consolidation of, authorized, § 653i. Consolidation of, agreement of, filing and recording of and fees for, § 653i. Consolidation of, agreement of, signing and acknowledging, § 653i. Consolidation of, agreement of, what to state, § 653i. Consolidation of, effect of, § 653i. Consolidation of, how effected, § 653i. Debts, property subject to attachment and execution for, § 653f. Directors, election, term of office, and removal, § 653e. Directors, number of, § 653c. Directors, vacancies, filling, § 653e. Dissolution and winding up of, appointment of receiver, § 653j. Dissolution and winding up of authorized, § 653j. Dissolution and winding up, manner of, § 653j. Dissolution and winding up of, proceedings on, § 653j. Elections, each member entitled to one vote, § 653c. Elections, mode and manner of conducting, § 653e. Fees, dues, installments, or labor, § 653e. Formation, five or more persons may form, § 653b. Formation, purpose for whieji may be formed, §6o3b. Indebtedness, by-laws to provide amount that can be incurred, § 653c. Indebtedness, liability of members, § 653c. Insolvency, compelling payment of unpaid dues and installments, § 653c. Meetings, manner of calling where by-laws provide method, § 653ha. Meetings, manner of calling where not provided for in constitution or by-laws, § 653ha. Meeting, manner of calling where proper officer refuses or fails to act, § 653ha. Meetings, time, place, and manner of calling and conducting, § 653e. Member, attachment of or execution against interest of, § 653f. Member, death of, § 653e. Members, expulsion, § 653e. Members, liability for indebtedness, § 653c. Members, mode and manner of succession, § 653e. Members, payment of unpaid dues and installments on insolvency, § 653e. Members, qualifications, § 653e. Members, rights of are equal, § 653e. Members, rights of association where interest sold under execution, § 653f. Members, rights of purchasers of interest of under execution, § 653f. Members, withdrawal of, § 653e. Membership certificates to be issued to members, § 653b. Membership certificates, assignment and transfer of, § 653b. Membership, who eligible to, § 653c. Officers, number, appointment, removal, and compensation, § 653e. Powers of enumerated, § 653h. Profits, adding to the funds, § 653e. Profits, division of, time and manner of, § 653e. Purpose for which may be formed, § 653b. Purpose of, how altered, modified or enlarged, §" 653g. Quo warranto to inquire into right to do business, § 653k. Eeceiver when only can be appointed for, § 653j. 1050 INDEX. CO-OPERATIVE BUSINESS ASSOCIATIONS. (Continued.) Eights ■where interest of member sold under execution, § 653t". What corporations not affected by provisions relating to, § 653 1. CO-OPERATIVE BUSINESS CORPORATIONS. See Co-operative Busi- ness Associations. Profits, amount to be divided, by-laws may provide, § 6o3a. Profits, manner of division, by-laws may provide, § 653a. Purposes for which may be formed, § 653a. CO-OPERATIVE CORPORATIONS. See cross-references under Co- operative Asi^ociations. COPYRIGHT. See Literary Property. CORPORATIONS. I. Definitions; nature and kinds of. II. Effect of code on; code provisions applying to; continuance under; amendment or repeal of law. III. Formation and organization; name of. IV. Articles of incorporation. V. Term of existence, extension of. VI. By-laws. VII. Directors. VIII. Oflacers other than directors; employees; financial statement of affairs. IX. Elections. X. Meetings. XI. Records, books and journals; lost or burnt records, bonds, stock, etc. XII. Powers; contracts; actions; changing residence; bonded debt; transferring business, property or franchises. XIII. Stock and stockholders; common and preferred stock; members; personal liability. XIV. Dividends. XV. Assessments. XVI. Sale of franchise under execution. XVII. Dissolution; nonuser; examining into affairs; attack upon. XVIII. Foreign. Agricultural fair corporations. See Agricultural Fair Corporations. Associations. See Associations. Banking. See Banks and Banking. Benefit societies. See Benefit Societies. Benevolent. See E'eligious, Social and Benevolent Corporations. Boards of trade. See Chambers of Commerce, Boards of Trade. Mechanics' Institutes and Kindred Associations. Bridge. See Bridge, Ferry, Wharf, Chute and Pier Corporations. Building and loan. See Building and Loan Corporations. Cemetery. See Cemetery Corporation. Chambers of commerce. See Chambers of Commerce, Boards of Trade, and Mechanics' Institutes. Chute. See Bridge, Ferry, Wharf, Chute, and Pier Corporations. Colleges and seminaries of learning. See Colleges and Seminaries of Learning. Co-operative business associations. 'See Co-operative Business Asso- ciations. INDEX. 1051 CORPORATIONS. (Continued.) Co-operative business corporations. See Co-operative Business Cor- porations. Corporation sole. See Corporation Sole; Keligious, Social, and Benev- olent Corporations. Cruelty to animals, societies to prevent. See Societies for Preven- tion of Cruelty to Children and Animals. Cruelty to children, societies to prevent. See Societies for Preven- tion of Cruelty to Children and Animals. Electric. See Lighting Corporations. Ferry. See Bridge, Ferry, Wharf, Chute, and Pier Corporations. Fraternal. See Religious, Social and Benevolent Corporations. Friendly. See Friendly Society. Gas corporations. See Gas Companies; Lighting Corporations. Hall, corporations formed to erect. See Halls. Heating corporations. See Heating Corporations. Homestead. See Homestead Corporation. Insurance. See Insurance Corporation. Irrigation. See Water and Canal Corporations. Land and building. See Building and Loan Corporations. Land and water. See Land and Water Corporations. Lighting corporations. See Lighting Corporations. Literary corporations. See Literary Corporations. Lodges, corporations to erect. See Lodges. Mechanics' institutes. See Chambers of Commerce, Boards of Trade, Mechanics' Institutes and Kindred Associations. Mining corporations. See Mining Corporations. Mortgage insurance corporations. See Mortgage Insurance Com- panies. Mutual benefit and life associations. See Mutual Benefit and Life Associations. Mutual life, health, accident and annuity insurance on asseessment plan. See Mutual Life, Health, Accident and Annuity Insur- ance on Assessment Plan. Non-profit co-operative agricultural, viticultural, and horticultural associations. See Non-profit Co-operative Agricultural, Viticul- tural and Horticultural Associations. Non-profit co-operative corporations. See Non-profit Co-operative Corporations. Pier. See Bridge, Ferry, Wharf, Chute and Pier Corporations. Pioneer associations. See Pioneer Associations. Profit, associations for purposes other than. See Religious, Social and Benevolent Corporations. Protective associations. See Protective ^Associations. Railroad. See Railroad Corporations; Street Railway Corporations. Religious, etc. See Religious, Social and Benevolent Corporations. Savings and loan. See Banks and Banking, II; Savings and Loan Corporations. Scientific corporations. See Scentific Corporations. Seminaries of learning. See Colleges and Seminaries of Learning. Social. See Religious, Social, and Benevolent Corporations. Societies for prevention of cruelty to children and animals. See Societies for Prevention of Cruelty to Children and Animals. Street railway. See Street Railway Corporations. Telegraph. See Telegraph Corporation. Telephone. See Telephone Corporations. Trust companies. See Trust Companies. Wagon-road. See Wagon-road Corporations. W^ater and canal. See Water and Canal Corporations. Wharf. See Bridge, Ferry, Wharf, Chute and Pier Corporations. 1052 INDEX. CORPORATIONS. (Continued.) I. Definitions; nature and kinds of. A person, corporation is, § 14. Are public or private, § 284. Classes of, § 284. Defined, § 283. "Person" includes corporation, § 14. Private, defined, § 284. Public and private distinguished, § 284. Public, defined, § 284. Public or private, are, § 284. Purposes, may be formed for any, § 286. II. Eflfect of code on; code provisions applying to; continuance under; amendment or repeal of law. Amendment of law, effect on rights against, §§ 403,404. Amendment of law, power of reserved, §§ 403, 404. Amendment or dissolution of laws, effect on rights and remedies against, §§ 403, 404. Code provisions relating to co-operative business corporations do not apply to, § 6531. Code provisions relating to non-profit co-operative business corpora- tions do not apply to, § 633za. Code provisions, to what corporations apply, § 403. Continuance under code, proceedings for, § 287. Existing, not affected by code, § 288. Laws before code, repealed except as to existing corporations, § 288. Legislature may repeal or amend laws relating to, §§ 403, 404. Provisions of code, to what corporations apply, § 403. Repeal of laws relating to, effect of on rights against, §§ 403, 404. Eepeal of laws relating to, power of reserved, §§ 403, 404. III. Formation and organization; name of. Certificate, secretary of state when to issue, § 296. Corporators, majority must be residents, § 285. Formation complete, when, § 296. Formation, majority of persons forming to be residents, § 285. Formed how, § 285. For what purposes may be formed, § 286. Misnomer does not invalidate instrument, § 357. Name, amending articles by setting forth new. § 362. Name, change of, after filing certificate, affidavit, § 1163. Name, change of, copy of decree to be filed in county where articles filed, § 300a. Name, change of, copv of decree to be filed with secretary of state, § 300a. Name of instrument creating, § 289. Name, misnomer does not invalidate instrument, § 357. Name, prohibitions in regard to, § 296. Name, recording certificate of, § 1163. Organization to be within one year, § 358. Three or more persons may form, § 285. ''Trust" or "trustee." when onlv can use as part of corporate name, § 290yo. IV. Articles of incorporation. Acknowledgment of, § 2*92. Amendment, certificate of, to state proceedings, § 362. INDEX. 1053 CORPORATIONS. IV. Articles of incorporation. (Continued.) Amendment, certified copy of, seal to be affixed to, § 362. Amendment, eoi^y of to be certified as correct by president, secre- tary and majority of directors, § 362. Amendment, filing of, penalty for failing to file, § 362. Amendment, name, setting forth new, § 362. Amendment, principal place of business cannot be changed by, § 362. Amendment, purjioses for which articles may be amended, § 362. Amendment, rights and liabilities on, § 362. Amendment, statements in original articles of names and residences of first directors cannot be changed by, § 362. Amendment, statements of amount of stock subscribed and by whom cannot be changed by, § 362. Amendment, term of existence cannot be extended or reduced by, § 362. Certificate that articles are filed, certified copies by secretary of state have same effect as original, § 296. Certificate that articles are filed, secretary of state to file duplicates in his office, § 296. Certified copy of, prima facie evidence, § 297. Copies, failure to file, effect of, § 299. Copies filed have same ett'ect in evidence as originals, § 299. Copies to be filed in counties where property' held, § 299. Copy, effect of where original burnt or destroyed, § 297a. Copy, filing of where original burnt or destroj'ed, § 297a. Copy to be filed in countv where property purchased or held, § 299. Defined, § 289. Filed, time wdthin which to be, § 299. Filing, amount required to be paid in, § 293. Filing, damages for failure to file copy of in county where property held, § 299. Filing in wrong county, effect of, § 363. Filing in wrong county, proceedings for withdrawal and refiling in proper county, § 363. Filing, prerequisites to, §§ 293, 294. Filing, to be filed with county clerk and secretary of state, § 296. Foreign corporation. See post, XVIII. Instrument creating called, § 289. Not to issue until affidavit of subscription filed, § 295. Number of subscribers, § 292. Particular corporations. See particular title. Qualifications of signers, § 292. Signatures and acknowledgments of directors, § 292. Subscribers, majority must be residents, § 292. Subscription and acknowledgment, § 292. Stock subscribed, articles to set forth amount of, § 290. Subscription, amount of, as prerequisite to filing articles, § 293. Subscription and acknowledgment of, § 292. Time of filing, § 299. To contain what, §§ 290, 291. What are, § 289. V. Term of existence; extension of. Amendment of articles, existence cannot be extended or reduced by, § 362. Extension of existence, certificate of, fees for filing and certifying, §401. Extension of existence, certificate of, filed with county clerk and secretary of state, § 401. 1054 INDEX. CORPORATIONS. V. Term of existence; extension of. (Continued.). Extension of existence, franchise granted by city, county, or legis- lature not extended, § 401. Extension of existence, how effected, § 401. Extension of existence, limited to fifty years, § 401. Extension of existence, signing and filing certificate of, § 401. May continue any length of time law prescribes, § 283. Eight of corporation to extend existence, § 401. Term of existence, §§ 290, 296. VI. By-laws. Amended how, 304. Book of, to be open to inspection, § 304. Certifying of, § 304. Copying into book of, § 304. Delegating power relating to, to directors, § 304. How adopted and by whom, § 301. May provide for what, § 303. Xew, adopting of, § 304. Particular corporation, of. See particular title. Penalty for violating, § 303. Proceedings for adoption of, § 301. Quorum of stockholders, bydaws may provide for, §§ 303, 312. Eecording, § 304. Eeeorded how, § 304. Eepealed how, § 304. Time for adojition of, § 301. To be certified, § 304. To be certified and copied in book of records before effective, § 304. VII. Directors. Amount of stock to be held by, § 305. Contracts to relieve from liability, void, § 327. Control of corporation where no capital stock, § 305. Corporate powers and business exercised by, § 305. Duties of, § 305. Election, notice of, and waiver of, §§ 302, 303. Election of new board, § 310. Election of new, on removal of old, § 310. Election, time of where no provision in bydaws, § 302. Election to be held annually, § 302. From whom chosen, § 305. Increase and decrease in number of, § 290. Increase or decrease in number of, majority of stockholders may vote for, §361. Increase or decrease in number of, procedure in obtaining, § 361. Inhibitions on, § 309. Liability for creating excessive indebtedness, § 309. Liability for increasing, reducing, withdrawing, or paying out cap- ital stock, § 309. Limitation of liability for reducing, increasing, withdrawing, or pay- ing out capital stock, § 309. Majority a quorum, § 308. Majority must be residents of state, § 305. Majority of quorum control, § 308. May be removed by two-thirds vote, § 310. Meetings called for removal of, § 310. Meetings, any meeting legal if all present and sign consent, § 320a. Meetings, any meeting legal if majority present and remainder sign written waiver of notice, § 320a. INDEX. 1055 CORPORATIONS. VII. Directors. (Contiuued.) Meetings, entry into and absence from, when noted, § 377. Meetings for removal of, how called and notice of, § 310. Meetings, regular, how called where no provision for in by-laws, §320. Meetings, regular, notice of, § 320. Meetings, special, how called where no provision for in by-laws, §320. Meetings, special, notice of, § 320. Meetings, waiver of notice to be presented and made part of records, § 320a. Meetings, where to be held, § 319. Members, must be, where no capital stock, § 305. Must perform what duties, § 308. Not to be less than three, § 290. Number of, §§ 290, 305. Number and term of, in social corporations, § 305. Number of in corporations not organized for profit, § 593. Organization of board of, § 308. Personal liability, § 309. Personal liability, limitation of actions on, § 309. Personal liability, contract to relieve from void, § 327. Profit, corporations other than for, number of directors, § 290. Profit, corporations other than for, term of office of directors, § 290. Qualifications of, § 305. Quorum necessary to transact business, § 305. Removal from office, proceedings for, § 310. To be stockholders or members, § 305. Trustees, contract to relieve from liability void, § 327. Vacancy, filled how, § 305. Who may be, § 305. VIII. Officers other than directors; employees; financial statement of affairs. Appointment and election at meeting held by consent, § 318. Certificates by secretary as evidence, § 348. False certificates, reports, or notices, officers liable for, § 316. Financial statement of affairs, what to show, § 302a. Financial statement of affairs, time to serve on stockholders, § 302a. Financial statement of affairs, ten per cent of stockholders may de- mand, § 302a. Financial statement of affairs, service on stockholders, time for, § 302a. Financial statement of affairs, service on stockholders, necessity of, and manner of, § 302a. Financial statement of affairs, request for by stockholders, time to file, § 302a. Financial statement of affairs, president and secretary to sign and swear to, § 302a. Financial statement of affairs, misdemeanor to sign false statement, § 302a. Frauds and misrepresentations by officers, penalty for. Appendix, tit. "Corporations." Liability for refusal to enter transfer or issue certificate, § 324. Organization of board, and election of officers, § 308. President, election of, § 308. President must be a director, § 308. Secretary, election of, § 308. Treasurer, election of, § 308. 1056 INDEX. CORPORATIONS. VIII. Officers other than directors; employees; finan- cial statement of affairs. (Continued.) Vacancies may be filled at meetings called by consent, § 318. X Wages, assignment by employee, act relating to. Appendix, tit. "Corporations." Wages, manner of payment of. Appendix, tit. "Corporations." Wages of laborers and mechanics, act providing for. Appendix, tit. "Corporations." IX. Elections. Adjournment of, §§ 312, 314. Ballot, all elections must be by, § 307. By-laws may prescribe rules, § 303. Common and preferred stock, no distinction as to voting power, § 290. Complaints respecting and proceedings thereon, § 315. Conduct of, § 307. Corporations not for profit, § 312. Cumulative voting, § 307. Cumulative voting, election void if right of, denied, § 307. Cumulative voting, provisions apply to corporations formed outside of state, § 307. Cumulative voting, statute applies to what corporations, § 307. Cumulative voting, where no capital stock, § 307. Directors, election of. See ante, VII. Eligibility of voters, § 312. Failure to hold or to adjourn meeting, new meeting how called, § 31-1. Irregular, effect of, § 312. Lunatic's stock represented how, § 313. Majority of stock, what constitutes where stock held by corporation, §344. Majority of subscribed capital stock or members to be represented, §312. Minor's stock represented how, § 313. New directors, election of on removal of old, § 310. New election, when and how ordered, § 315. Not held at appointed time, calling another, §§ 312, 314. Notice of, § 302. Notice of election of directors, waiver of, §§ 302, 303. Officers, election of. See ante, IX. Postponement of, § 314. Proxies, for what time valid, § 321b. Proxies, how executed, § 321b. Proxies, revocable, § 321b. Proxies, time for which valid, by-law in corporation without stock may prescribe, § 321b. Proxies, who may act, by-laws of corporation without stock may prescribe, § 321b. Proxy by married woman, § 325. Setting aside, right of and procedure, § 312. Stock of decedent represented by executor, § 313. Time for, where no provision in bj'-laws, § 302. Voidable when, and how set aside, § 312. Voters, qualifications of, § 312. Voting, manner of, § 307. Voting, manner of where no capital stock, § 307. Voting may be by proxy or in person, § 307. Who may vote, § 312. X, Meetings. Adjournment of, §§ 312, 314. Application to justice of peace to call, § 311. INDEX. 1057 CORPOEATIONS. X. Meetings. ( Continued. ) Ayes and noes to be taken and entered on request, § 377. By consent is valid, § 317. By consent, what proceedings may be transacted, §§ 317, 318. By-laws may provide for, § 303. Control of, where no capital stock, § 305. Directors, meetings for removal of, § 310. Directors, meetings of. See ante, VII. Entry into and absence from meetings, when noted, § 377. Failure to hold election or adjourn meeting for, new meeting called how, § 314. Justice of peace may direct calling, when, § 311. Majority of stock, what is where stock held by corporation, § 344. Notice of, in what newspaper to be published, § 303. Notice of, proceedings on refusal of secretary to give, § 310. Notice of, to create or increase bonded indebtedness, § 359. Notice of, to increase or diminish capital stock, § 359. Notice of, to remove directors, § 310. Notice of, where no secretary, § 310. Protests of members to be entered on request, § 377. Who may vote at, § 321b. Meetings, proxies, executors, administrators, guardians and trustees may give, § 321b. Proxies, how executed, § 321b. Proxies, lengfh of time for which valid, § 321b. Proxies, revocation of, § 321b. Meetings, proxies, who may act as where no capital stock, § 321b. Quorum in corporations formed other than for profit, § 312. Quorum necessary, § 305. Removal of directors, for, how called, § 310. Where to be held, § 319. Where all members present and consent, § 317. XI. Records, books and journals; lost or burnt records, bonds, stock, etc. Book of directors and stockholders, keeping for inspection, § 321. Book, stock and transfer, how kept, § 378. Burnt articles of incorporation, certified copies have same effect as original, § 297a. Burnt articles of incorporation, certified copy of, may be filed, § 297a. Burnt bonds, action lies to obtain duplicates, § 329. Burnt bonds, action to duplicate, judgment, § 329. Burnt bonds, action to duplicate, judgment and costs, § 329. Burnt bonds, action to duplicate, notice, contents of, and publication of, § 329. Burnt bonds, action to duplicate, parties, § 329. Burnt bonds, action to duplicate, proceedings where no one appears, § 329. Burnt bonds, action to duplicate, proceedings where parties appear, § 329. Burnt bonds, action to duplicate, summons, issuance and service of, §329. Burnt bonds, procedure to obtain duplicates, § 329. Burnt bonds, reissuance of, indemnity, § 329. Burnt bonds, reissuance of, when ordered, § 329. Burnt records, stocks, or bonds, restoration, hearing, § 365. Burnt records, stocks, or bonds, restoration, judgment in, § 365. Burnt records, stocks, or bonds, restoration, jurisdiction of court at- taches when, § 365. Civ. Code — 67 1058 INDEX. CORPORATIONS. XI. Records, books and journals; lost or burnt rec- ords, bonds, stock, etc. (Continued.) Burnt records, stocks, or bonds, restoration, new records, stocks, etc., issuing, § 365. Burnt records, stocks, or bonds, restoration, notice, service and pub- lication of, § 365. Burnt records, stocks, or bonds, restoration, petition, § 365. Burnt records, stocks, or bonds, restoration of, proceeding on, § 365. Burnt records, stocks, or bonds, restoration, unknown owners, § 365. Burnt records, stocks, or bonds, who may petition to restore, § 365. False entries in, liability for, § 316. Journal of proceedings, what and how kept, § 377.. Lost certificate, issuance of new, no liability of corporation after. §328. Lost, destroyed, or withheld certificate, action for new, proceedings on, § 328. Lost, destroyed, or withheld certificate, action for new, protection of company, § 328. Eecord of ayes and noes and protests to be entered on request, § 377. Eecords of, when and how kept, § 377. Records, stock and transfer book, how kept, § 378. Eecords to be open for inspection, §§ 377, 378. XII. Powers; contracts; actions; changing residence; bonded debt; transferring business, property or franchises. Acknowledgment, affiant to be known to officer, § 1185. Acknowledgment by, prerequisites to taking, § 1185. Acknowledgment, form of, § 1190. Acknowledgment of instrument by, who may make, § 1161. Bank act applies to what corporations. Appendix, tit. "Banking," § 1. Bequests to, restrictions on power to make, § 1313. Bonded indebtedness, consolidated, creating hj several corporations, §359. Bonded indebtedness, consolidated, limit on amount of, § 359. Bonded indebtedness, creating or increasing by two or more cor- porations, § 359. Bonded indebtedness, proceedings to create or increase, § 359. Bonds, corporations for giving, act relating to. Appendix, tit. "Bonds." Bonds, destruction by fire, restoration of. See ante, XI. Bonds only to issue for monev paid, labor done or property received, § 359.^ Bonds, restrictions upon issue of, § 359. Business or property, transfer of as a whole, consent of stockholders, how expressed, § 361a. Business or property, transfer of as a whole, consent of two thirds of stockholders, § 361a. Certificate of place where summons maj' be served, § 1163. Certificate of place where summons may be served, affidavit on change of residence, § 1163. Change of priiieipal place of business, corporation has right of, §321a. Change of principal place of business, filing of resolution authorizing, with affidavit of publication of notice, § 321a. Change of principal place of business, proceedings on, § 321a. Concessions, grants, or franchises in foreign country, sale of, § 364. Consolidated bonded indebtedness by several corporations, creation of, § 359. Consolidated bonded indebtedness by several corporations, limitation upon, § 359. INDEX. 1059 CORPORATIONS. XII. Powers; contracts; actions; changing residence; bonded debt; transferring business, property or franchises. (Con- tiuued.) Consolidation of debts by corporations other than for profit, § 605. Control over and powers of, in whom vested, § 305. Debts bevond subscribed capital stock, directors must not create, § 309! Debts, liability of director creating excessive, § 309. Debts, limitation on power to create, § 309. Executor, receiver, trustee, etc., act authorizing corporation to act as. Appendix, tit. "Corporations." Foreign country, sale of property, franchises, or concessions in, § 364. Form of acknowledgment by, § 1190. Franchise, may be sold on execution against, § 388. Franchise, sale of under execution, duties and liabilities, § 391. Franchise, sale under execution, where made, § 393. Franchise, sold under execution, redemption, § 392. Franchise, transfer of, consent of stockholders holding two thirds of issued capital stock necessary, § 361a. Franchise, transfer of, consent of stockholders, how expressed, § 361a. Lease of property as a whole, what necessary, § 361a. Letters of credit, license from superintendent of banks necessary before issuing. Appendix, tit. "Banking," § 13. Letters of credit, license to issue, fee for. Appendix, tit. "Bank- ing," § 13. Letters of credit, right to issue. Appendix, tit. "Ban-king," § 13. Mortgage participation certificates and securities guaranteed by poli- cies of mortgage insurance as legal investments for funds of, § 453flf. Misnomer of, does not invalidate instrument, § 357. Powers, bills, notes, etc., to circulate as money, not to issue, § 356. Powers of, banking prohibited, § 356. Powers of, enumeration of, § 351. Powers of, exercised by board of directors, § 305. Powers of, limitation on, § 355. Property, sale, lease, or transfer of, as a -whole, what necessary, § 361a. Real property, corporation, what may acquire, and how much, § 360. Real property, how acquired, § 360. Realty on which business carried on, how acquired, § 363. Realtv on which business carried on, right to acquire and improve, §^360. Sale of franchises, concessions, or property in foreign country, § 364. Seal affixed, how. § 1628. Summons, certificate of place where may be served upon, § 1163. Summons, penalty for failure to designate person, upon whom may be served, § 406. Trusts, corporation, when only can accept or execute, § 2901/4. Will, power to take under, § 1275. Will, whether may take under, § 1275. XIII. Stock and stockholders; common and preferred stock; members; personal liability. Capital stock, amount to be paid in where corporation acts as execu- tor, guardian, etc., § 290a. Capital stock, amount to be paid in where corporation acts as execu- tor, guardian, etc., affidavit as tg, § 290a. Capital stock, articles to set forth amount of, § 290. Capital stock, articles to state par value of, § 290. Capital stock, cannot be diminished by amendment of articles, § 362. 1060 INDEX. CORPORATIONS. XIII. Stock and stockholders; common and preferred stock; members; personal liability. (Continued.) Capital stock, division of, among stoel^holders, § 309. Capital stock, increasing and diminishing, manner of, § 359. Capital stock, increasing and diminishing, proceedings for, § 359. Capital stock, liability of directors reducing, withdrawing, or paying out, § 309. Capital stock, limitation of action against directors reducing, with- drawing, increasing, etc.. § 309. Capital stock, not to be divided, withdrawn, or paid to stockholders, § 309. Capital stock, not to be increased or reduced, § 309. Capital stock of trust companies. See Trust Companies. Capital stock, reducing or increasing, restrictions on, § 309. Capital stock, withdrawing, restrictions on, § 309. Certificates, false, officers, liable for, § 316. Certificates, how and when issued, § 323. Certificates, refusal to issue, penalty for, § 324. Certificate to show amount paid on, where, § 323. Common and preferred, articles of incorporation where stock classi- fied into, § 29U. Common and preferred, certificates o'f stock, what to state, § 323. Common and preferred, stock may be classified into, § 290. Common and preferred stock, no distinction as to liabilitv to cred- itors, §§ 290, 362. Common and preferred stock, no distinction as to voting power, §§290,362. Common and preferred, no distinction between except as to matters stated in articles, § 362. Common and preferred stock, proceedings where stock classified into, §290. Common and preferred stock, to be of same par value, §§ 290, 362. Destruction of stock certificates by fire, restoration of. See ante, XI. Entry of transfer of stock on books, refusal to make, liabilitj^, § 324. Limitation on power to issue, § 359. Investment of funds of insurance corporations in stocks of corpora- tions, § 421, subd. 6. Lost, destroyed or withheld certificates. See ante, XL Married woman, dividends payable to, § 325. Married woman may give proxy or power as if sole, § 325. Married woman, transfer of stock by, § 325. Members are who, § 29S. Members, control where there is no capital stock, § 305. Members, owners are called members if no capital stock, § 298. Members, personal liability of, where no capital stock, § 322. Non-resident, transfer of stock by, giving bonds, § 326. Non-resident transfer of stock by, how effected, § 326. Personal property, shares of stock are, § 324. Purchase of stock by corporation. See post, XV. Stock and transfer book, how kept, § 378. Stock and transfer book to be kept. § 378. Stock, diminishing, limitation on, § 359, subd. 2. Stock, diminishing, proceedings on, § 359. Stock, increase of, proceedings on, § 359. Stock in name of married woman, dividends to whom paid, § 325. Stock, in name of married woman, proxy, § 325. Stock in name of married woman, transfer, § 325. Stock in name of pledgee or trustee, how represented, § 313. Stock, issuance of certificate before fully paid up, § 323. INDEX. 1061 CORPORATIONS. XIII. Stock and stockholders; common and preferred stock; members; personal liability, (('on tinned.) Stock, issuance of certificate when fully paid up, § 323. Stock, lost, destroyed or withheld. See ante, XI. Stock, majority, what is, where stock is held by corporation, § 344. Stock of minor, insane person or decedent, how represented, § 313. Stock only to issue for money paid, labor done, or property received, §359. Stock, subscription to, affidavit of, § 295. Stockholders, are who, §§ 298, 322. Stockholders, guardian or trustee's liability as, § 322. Stockholders, list of. Appendix, tit. "Banking," § 17. Stockholders, married woman may give proxv or power as if sale, §325. Stockholders' personal liability, creditor may institute joint and sev- eral actions, § 322. Stockholders' personal lialnlitv does not extend to what persons, §322. Stockholders' personal liability extends to what persons, § 322. Stockholders' personal liability, foreign corporation, § 322. Stockholders' personal liabilitv, funds in guardian's hands, liability of, § 322. Stockholders' personal liability, how enforced, § 322. Stockholders' personal liability, in general, § 322. Stockholders' personal liability, measure of, § 322. Stockholders' personal liability, no distinction between common and preferred stock, § 290. Stockholders' personal liabilitv, not released by transfer of stock, § 322. Stockholders' personal liabilitv, released on payment of his propor- tion, § 322. Stockholders' personal liability, released when, and when not, § 322. Stockholders' personal liability, several judgments against stockhold- ers for debts, § 322. Stockholders' personal liability, stock held as collateral, § 322. Stockholders' personal liability, stock held by representative, § 322. Stockholders' personal liability, trust funds liability for, § 322. Stockholders' personal liability, trust funds, liability of beneficiary, §322. _ - Stockholders' personal liability, when stockholder a guardian or trus- tee, § 322. Stockholders, who are, § 322. Transfer of shares does not release stockholder's liability, § 322. Transfer of shares, manner of, § 324. Transfer of shares of married woman, § 325. Transfer of shares, to be entered on books, § 324. Transfer on books, refusal to make, liability, § 324. XIV. Dividends. Not to be declared on stock belonging to the corporation, § 343. Payable to married women, § 325. To be made only from surplus i)rofits, § 309. XV. Assessments. Action to recover delinquent, § 349. Delinquency, time of, § 334. Directors may levy, when and for what, § 331. Jurisdiction to sell acquired by publication of notice, § 340. Limitation on power of, § 332. 1062 INDEX. CORPORATIONS. XV. Assessments. (Continued.) Notice of delinquent, contents of. §§ 337, 338. Notice of delinquent, form of, §§ 337, 338. Notice of delinquent, publication of, §§ 337, 339. Notice of, form, §§ 335, 337. Notice of, publication where works are out of United States, § 336. Notice of, service and publication of, § 336. Not to be invalidated by what irregularities, § 346. Not to be levied upon stock owned by the corporation, § 343. Not to be levied while previous one unpaid, except in what case, § 333. Order for, to contain what, § 334. Payment before sale day, what to be paid in addition to assessment. § 341. Proceedings for, to be begun anew, when, § 346. Publication of notice, affidavits are prima facie evidence, § 348. Publication of notice, affidavits to be filed, § 34,8. Publication of notice, newspaper in which to be published, § 336. Publication of notice, proved, how, § 348. Sale, action to recover stock, limitation of, § 347. Sale, action to recover stock, tender of assessment, interest and costs, § 347. Sale, affidavit of secretary or auctioneer to prove, § 348. Sale, affidavits, filing of, § 348. Sale, affidavits prima facie evidence, § 348. Sale, corporation may buy in default of bidders, § 343. Sale, corporation, purchase by, title to stock and disposition of, § 344. Sale, corporation purchasing, rights and liabilities on, § 343. Sale, corporation, stock bought bv, no assessments or dividends on, § 343. Sale, day of, to be stated, § 334. Sale, disposition of stock bought by corporation, § 344. Delinquent stock sale, extension of time of. how made, § 345. Delinquent stock sale, extension of time of, who may make, § 345. Delinquent stock sale, extension of time for, time of may be ex- tended, § 345. Sale, highest bidder to be purchaser, § 342. Sale, jurisdiction acquired, how, § 340. Sale, no more stock than necessary to be sold, § 340. Sale, time of, § 334. Sale, to be bv public auction, § 341. Sale to pay,'§§ 340-349. Sale to pay, transfer of stock to purchaser when sold to pay assess- ment, § 342. Sale, waiver of, and suit to recover assessment, § 349. Validity of, § 346. Waiver of sale and recovery of assessment by suit, § 349. XVI. Sale of franchise under execution. Execution against corporation, franchise may be sold, § 388. Execution sale of franchise, corporation, powers and duties after, §391. Execution sale of franchise, damages, recovery by purchaser, § 390. Execution sale of franchise, duties and liabilities, § 391. Execution sale of franchise, purchaser may recover penalties, etc., §390. Execution sale of franchise, purchaser, rights of, § 390. Execution sale of franchise, purchaser to be let into possession, §389. INDEX. 1063 CORPORATIONS. XVI. Sale of franchise under execution. (Con- tinued.) Execution sale of franchise, purchaser to transact business of cor- poration, § 389. Execution sale of franchise, redemption, § 392. Execution sale of franchise, where held, § 393. Franchise, redemption of, from execution sale, § 392. Recovery by purchaser as a bar, § 390. XVII. Dissolution; non-user; examining into aflfairs; attack upon. Attorney-general cannot inquire into after ten years, § 358. Attorney-general examining into, powers of, § 382. Attorney-general may examine into, when, § 382. Collateral attack, not open to, § 358. Collateral attack on, § 358. Dissolution, by legislature, and its effect, § 404. Dissolution by legislature does not affect rights and remedies against, §§403, 404. Dissolution, directors and managers are trustees, §.400. Dissolution, directors and managers, powers of, § 400. Dissolution, directors trustees for creditors and stockholders, § 400. Dissolution, involuntary, code provisions governing, § 399. Dissolution, reservation by legislature of power of, §§ 403, 404. Dissolution, voluntary, code provisions governing, § 399. District attorney examining into, powers of, § 382. District attorney may examine into, when, § 382. Examination into, by attorney-general or district attorney, § 382. Examination into, by attorney-general or district attorney, how made, § 382. Examination into, by legislature, § 383. Inquiry into cannot be made after ten years, § 358. Non-user, dissolution for, § 358. Non-user, proceedings to be instituted by attorney-general, § 358. Non-user, resumption of business, effect of, § 358. Non-user, time in which nuist organize and commence business, § 358. Non-user, who may question right of corporation, § 358. Quo warranto, § 358. XVIII. Foreign. Actions, cannot maintain or defend, when, § 406. Articles, certified copies of to be filed, § 408. Articles, failure to file, duty of secretary of state and district at- torney, § 410. Articles, failure to file, penalty for, § 410. Articles, failure to file, proceedings against, § 410. Articles, fees for filing, § 409. Appendix, tit. "Corporations." Building and loan associations. See Building and Loan Associations. Evidence of corporate existence, what admissible, § 406. Fees required of, § 409. Appendix, tit. "Corporations." Filing of articles of incorporation. Appendix, tit. "Corporations." Foreign building and loan corporations. See Building and Loan Cor- porations. Insurance corporations on assessment plan. See Mutual Insurance on Assessment Plan. Provisions as to cumulative voting, apply to, § 307. Railway corporations, rights, powers, and liabilities, § 407. Statute of limitations operates in favor of, when and when not, § 406. Summons, designation of person on whom may be served, § 405. Summons, designation of jierson nn whom may be served, penalties for failure to name, § 406. 1064 INDEX. CORPORATIONS. XVIII. Foreign. (Continued.) Sjummons, designation of person on wliom may be served, proceed- ings on death or removal of, § 406. Summons, designation of person on whom may be served, revocation and new designation, § 466. Summons, designation of person on whom may be served, rights on compjliance with statute, § 406. Summons may be served on secretary of state, when, § 40.5. Stockholders' personal liability, § 322. WJmt exempt from provisions of Civil Code, § 410. CORPORATION SOLE. See Religious, Social and Benevolent Corpora- tions. Religious societies may become, when, § 602. CORPORATIONS FOR PREVENTION OF CRUELTY TO CHILDREN AND ANIMALS. See Societies for Prevention of Cruelty to Children and Animals. COSTS. Attorney's fees in action by co-owner of flume for contribution, § 843. Divorce, of, § 137. Homeless minor, no fee on apprenticing, § 268. Homestead, of appraisement, § 1259. Homestead, of proceedings to subject to creditors' demands, § 1259. Indemnity against, § 2778. Indemnity includes costs of defense, § 2778. Jury trial on apprenticeship of minor, § 267. Negotiable instrument may provide for, § 3088. COTENANCY. See Tenancy in Common. Between devisees, § 1350. Between husband and wife, § 161. Insurance not avoided by transfer between cotenants, § 2557. Interest in common, defined, § 683. Interests in common, § 682. What interests are in common, § 686. COTERMINOUS OWNER. Fences and monuments, duty to maintain, § 841. Mutual obligations of, § 841. Rights to lateral support, § 832. See Lateral Support. Rights to line trees, § 834. COUNTY. Articles of incorporation, filing in wrong county, effect of. and pro- ceedings on, § 363. County fire insurance companies. Appendix, tit. "Insurance." Franchise granted bv, not affected bv extension of corporate exist- ence, § 401. Marriage settlement to be recorded in what, § 179. Mortgage of personal property to be recorded in what, § 2959. Mortgaged property in transit deemed located in what, § 2960. Property of common carrier deemed to be in what, § 2961. Word "county" includes "city and county," § 14. COUNTY CLERK. See Clerk. COUNTY RECORDER. See Recording. Acknowledgment, may take, § 1181. INDEX. 1065 COURT. Clerk of, may take acknowledgments, § llSl. Proceedings of, not enjoined, when, § 3423. COURT COMMISSIONER. Acknowledgment, may take, § 1181. COVENANTS. Agent's authority to give, § 2324. Agreement to give usual, includes what covenants, §§ 1733, 1734. Apportionment of, § 1467. Covenant with owner of another tract runs with both tracts when, § 1468. Damages for breach of, §§ 3304, 3305. Damages for partial breach of, § 3304. Form of, § 1734. "Grant," what covenants implied from use of, § 1113. Implied in transfer of land, § 1113. Implied, right to sue on, § 1113. May inure to stranger, § 1085. Quiet possession, for, in hiring, §§ 1927, 1955. Eunning with land, §§ 1460-1468. Eunning with land, covenants for direct benefit of property run, § 1462. Eunning with land, defined, § 1460. Eunning with land, only those specified in code run, § 1461. Eunning with land, what are generally, § 1460. Eunning with land, what covenants run, §§ 1462, 1463, 1468. Eunning with land, what run when assigns are named, § 1464. Eunning wuth land, who bound by, and who not, §§ 1465, 1466. Eunning with land, who not liable for breach, § 1466. CREDIT. Agent accepting, liable as principal, § 2343. . Agent, to, exonerates principal, § 2335. Auctioneer not to give, except in what eases, § 2362. Creditor. See Creditor. Factor may give, except in what cases, § 2368. Factor, right to sell on, §§ 2028, 2362. Letters of. See Letter of Credit. Ship-owner's, master may borrow on, § 2374. Ship's manager cannot borrow, § 2389. CREDITORS. See Assignment for Creditors; Credit; Debtor. Acceptance by, necessary to satisfaction, § 1473. Acceptance of accord, § 1523. Acceptance of part performance, § 1524. Application of performance by, § 1479. See Obligations. Appraisement of homestead on petition of judgment creditor, § 1245. Assignments for benefit of creditors. See Assignments for Creditors. Avoid act of debtor, when, only can, § 3441. Contracts of debtor valid against, when, § 3431. Current money, borrower to pay in, § 1913. Debtor may prefer, when, § 3432. Definition of, § 3430. Effect of prevention of performance by, § 1512. Effect of refusal to accept performance, § 1515. Fraudulent conveyances. See Fraudulent Conveyance. Gift causa mortis, treated a^ legacy so far as relates to creditors, § 1153. 1066 INDEX. CREDITORS. (Continued.) Guarantor, liable to, when, § 2807. Guarantor not exonerated by discharge of debtor without act of, § 2825. Guarantor not exonerated by mere delay of, § 2823. Guarantor not exonerated by voidable promise of, § 2820. Guarantor, when exonerated by acts of, § 2819. Guarantor, when partially exonerated, § 2822. Guarantor with indemnity, when not exonerated, § 2S24. Homestead, when to pay expenses of appraisement of, § 1259. Lien void against, when, § 2913. Marshaling of assets, § 3433. Mortgage of personal property, when void against, § 2957. Mortgagor, of personal property, may levy on property, § 2968. Novation, how made, § 1531. Novation, may rescind, when, § 1533. Novation. See Novation. Objections to offer of performance, § 1501. Obligation of, as to thing offered which he refuses to accept, § 1505. Offer of performance at place appointed by, § 1489. Offer of performance must be in such manner as to benefit, § 1493. Offer of performance must be made to. § 1488. Order of resort to different funds, § 2899. Partner cannot make assignment for, § 2430. Partner, liability of, after dissolution, to, § 2453. Partner, special, may be creditor, § 2491. Partner, special, postponed to other creditors, § 2491. Performance excused, if prevented by, § 1511. Performance in manner directed by, § 1476. Performance, prevention of, by, effect of, §§ 1511, 1512. Performance to one of several joint creditors, §§ 1475, 1488. Preferences, debtor may give, § 3432. Preference to, in insolvencv, void, § 2496. Receipt by, § 1499. Relative rights of creditors, § 3433. Release by, relinquishes obligation, § 1541. Release by, effect of general, § 1542. Special partner, when liable as general partner, to, § 2502. Surety entitled to securities held by, § 2849. Surety exonerated by refusal to sue, § 2845. Surety exonerated bv what act or omission of, § 2840. Surety, how far liable, § 2838. Surety may enforce remedies of, when, § 2845. Surety's securities, entitled to benefit of, § 2854. Title of thing offered passes to, when. § 1502. Transfer for benefit of, to be recorded, § 1164. Transfer of debtor void against, when, §§ 3439, 3440. Transfer without value, validity of, as against, §§ 3442, 3449, 3465. 3469. Trust fund, how far liable to, § 859. Trust, grant on, absolute in favor of subsequent creditor, when. § 869. Trusts for benefit of, § 857. Witness to will, as, § 1282. CRIMINAL LAW. Warehouseman, violation of law by, punishment, § lS58f. CROPS. Lien of mortgage on, continues after severance, § 2972. INDEX. 1067 CEOPS. (Contiuued.) Mortgage of, § 2955. Tenant's i-ight to harvest, § 819. CROSS-COMPLAINT. Divorce, iu. See Divorce. CROSSINGS. See Railroad Corporations. Sounding bell or steam whistle on ajiproaehing, § 486. CRUELTY. See Divorce. Animals. See Societies for Prevention of Cruelty to Children and Animals. Apprenticeship annulled for, § 276. Children, to. See Societies for Prevention of Cruelty to Children and Animals. Defined, § 94. Divorce, as ground for, §§ 92, 98, 146. CUMULATIVE. Voting, § 307. CURATIVE ACTS. See Registration. Act curing defective execution or acknowledgment of instrument, § 1207. Appendix, tit. "Acknowledgments." CURRENT MONEY. Borrower to pay in, § 1913. CURTESY. Not allowed, § 173. CUSTODY. Children of annulled marriage, of, § 85. Children, of, rules for awarding, § 246. Children, of. See Divorce; Parent and Child. Thing offered in performance of obligation, of, § 1503. D DAMAGES. See Specific Relief. Accruing after action brought, right to recover, § 3283. Acts or omissions, unlawful, recoverable for, § 3281. Admission to place of amusement, for refusal of, § 54. After snit brought, § 3283. Agent's authority, breach of warranty, damages for, § 3318. Animals, exemplary, for injuries to, § 3340. Animals, vicious, injuries by, for, § 3341. Bill of exchange, foreign, damages for dishonor of, §§ 3234-3238. Breach of agreement to accept, and pay for personalty sold, for, §§3310, 3311. Breach of agreement to buy personalty, for, § 3311. Breach of agreement to buy realty, § 3307. Breach of agreement to convey realty, for, § 3306. Breach of agreement to sell personalty, for, § 3308. Breach of contract, general rule, § 3300. Breach of contract, must be certain, § 3301. Breach of contract to pay liquidated sum, § 3302. Breach of contract to pay money only, § 3302. Breach of covenant against encumbrances, for, § 3305, Breach of covenants in deed, for, § 3304, 1Q68 INDEX. DAMAGES. (Continued.) Breach of covenants, partial, damages for, § 3304. Breach of covenant to deliver personalty, § 3309. Breach of obligation, cannot exceed what one wtuild have gained by complete performance, § 335S. Breach of obligation providing for opjiressive or unconscionable, rea- sonable only recoverable, § 3359. Breach of obligations to be reasonable, § 3359. Breach of promise of marriage, for, § 3319. Breach of warranty of agent's authority, for, § 3318. Breach of warranty of quality, for, § 3313. Breach of warranty of quality for special purpose, for, § 3314. Breach of warranty of title to personalty sold, for, § 3312. Carrier of messages, refusal to receive, or delay in delivering, §§ 2209, 3315. Carrier's delay, for, § 3317. Carrier's obligation to deliver, for breach of, § 3316. Carrier's obligation to receive, for breach of, § 3315. Carrier's refusal to receive or transport passengers, § 482. Certain, must be, § 3301. Certificate of stock, liabilitv for refusal to enter, transfer, or issue, § 324. Chose in action, presumption as to value of, § 3356. Collision of vessel, liability for and apportionment of, §§ 971, 973. Compensation. See Compensation. Compensation defined. § 3274. * Contract fixing in advance, validity of, §§ 1670, 1671. Conversion, for, §§ 3336-3338. Covenants in deed, breach of, damages for, § 3304. Deceit, willful, liabilitv for, § 1709. Detriment defined, § 3282. Detriment from unlawful act or omission, one suffering, entitled to, . § 3281. Dishonor of bill of exchange, for, § 3235. Dishonor of foreign bill, for, §§ 3234-3238, 3303. Dogs killing goats, sheep, or poultrv, liabilitv of owner, § 3341. Duel, injuries inflicted in, §§ 3347, 3348. Electric light, refusal to purchase, § 629. Emploj'ing materials belonging to another, for, § 1033. Equal rights, denial of, damages, § 52. Equal right's, denial of, punishment of, § 52. Excessive, cannot exceed what would be gained by complete per- formance, § 3358. Exemplary, damages prescribed in code are exclusive of, § 3357. Exemplary, for injury to animals, § 3340. Exemplary, in case of malice, fraud, or oppression, § 3294. Exemplary, infant's liability for, § 41. Exemplary, lunatic's liability for, § 41. Exemplary, when recoverable, in general, § 3294. Failure to quit by tenant after notice, treble rent, § 3345. Finder of lost property failing to notify owner, § 1865. Fire, for negligently setting, § 3346a. Foreign bill, interest, where protested, § 3236. Foreign bill of exchange, for dishonor of, §§ 3234-3238. Forfeiture, relief in cases of, § 3275. Fraud, oppression, or malice, interest as damages, § 3288. Future injuries, for, § 3283. Gas, refusal to furnish, § 629. Guardian's holding over, for, § 335, INDEX. 1069 DAMAGES. (Continued.) Holding over by tenant, treble rent, § 3345. Holding over, for willful, § 3335. Infringements upon rights of another, duty to refrain from, § 1708. Injuries to another, duty to refrain from inflicting, § 17US. InnkeeiJer, for failure to post charges, § 1863. Innkeeper or lodging-house keeper, for overcharges, § 1863. Interest as, §§ 32S7-3290, 3802, 3304-3306, 3336. Interest, damages prescribed in code are exclusive of, § 3357. Interest on, § 3287. Killing sheep by dogs, for, § 3341. Lienor's, for conversion, § 3338. Limited to amount one would gain by performance, § 3358. Liquidated, breach of contract to pay, § 3302. Liquidated, not bar to specific performance, § 3389. Liquidated, refusal or failure to furnish gas or electricity, § 629. • Liquidated, refusal to permit agent of lighting company to enter building, § 631. Liquidated, validity of contract, §§ 1670, 1671. Market value, §§ 3353, 3354. Marriage, breach of promise of, § 3319. Measure of, for breach of contract, § 3300. Measure of, for breach of contract to pay liquidated sum, § 3302. Measure of, in various cases, §§ 3300-3341. Messages, refusal or postponement of, for, § 2209. Mortgagee's liability for refusal to give certificate of discharge, § 2941. Must be certain, § 3301. Nominal, when recoverable, § 3360. Obligation, breach of, cannot exceed what would have been gained by complete performance, § 3358. Obligations not arising out of contract, damages for, § 3333. Oppressive or unconscionable, obligation providing, reasonable dam- ages only recoverable, § 3359. Penal, §§ 3344-3348. Penal, injury to or removal of trees or underwood, § 3346. Penal, for firing woods, § 3346a. Penal, for injuries inflicted in duel, §§ 3347, 3348. Penal, tenant wilfully holding over, § 3345. Penal, tenant failing to quit after notice of intention to quit, treble damages, § 3344. Penal, tenant holding over after notice requiring possession, § 3345. Property of peculiar nature, value, how estimated, § 3355. Railroad, liability for refusing to provide ticket, § 490. Eailroad, overcharge by, § 489. Keal estate, willful holding over of, § 3335. Real estate, wrongful occupation of, §§ 3333, 3334. Reasonable, to be, § 3359. Reasonable, to be, where oppressive and unconscionable damages pro- vided, § 3359. Recoverable for unlawful acts or omissions, § 3381. Refusal to permit agent of lighting company to enter building, § 631. Relief, in general, § 3274. Sales, value liow estimated, §§ 3353, 3354, 3355. Seduction, for, § 3339. Sheep killed by dogs, for, § 3341. Specific relief. See Specific Relief. Telegraph company, injury to, § 537. Telegraph company, damages for malicious injury to, § 538. 1070 INDEX. DAMAGES. (Continued.) Telephone company, injury to, § 537. Telephone company, malicious injury to, § 538. Tenant liable for treble rent, when, §§ 3344, 3345. Tenant's failure to quit after notice, treble rent, § 3344. Thing in action, presumption as to value of, § 3356. Timber, treble, for injury to, § 3346. Treble, for injury to timber or trees, § 3346. Treble, for negligently setting tire, § 3346a. Treble, tenant holding over after notice requiring possession, § 3345. Treble, where tenant holds over after giving notice of intention to quit, § 3344. Trees, treble, for injury to, § 3346. Trees, treble, for negligently setting fire, § 3346a. Trover, for conversion of personal propertv, §§ 3336-3338. Trust, damages for breach of. §§ 2237, 2238". Trustee's holding over, for, § 3335. Unlawful acts or omissions, recoverable for, § 3281. Value, how estimated in favor of buyer, § 3354. Value, how estimated in favor of seller, § 3353. Value, how estimated where property of peculiar value, § 3355. Value of thing in action, § 3356. Willful holding over of real property, for, § 3335. Who entitled to, in general, § 3281. Woods, treble, for negligently setting fire to, § 3346a. Written instrument, presumption as to value of, § 3356. Wrongfullv using materials of another, wrongdoer liable in damages, § 1033". Wrongful occupation of realty for, § 3334. Wrongs, for, generally, § 3333. DATE. Delivery of deed, presumption as to, § 1055. Negotiable instrument, not necessary in, § 3091. DAYS. Business, are what, § 9. Grace, of, not allowed, § 3181. Holidays, are what, §§ 7, 8. How counted in computing time, § 10. DEATH. Agency, effect of death upon, §§ 2355. 2356. Beneficiary receiving advancements, effect on heirs, § 1399. Beneficiary under will, rights of children, § 1310. Chose in action, survival of. § 954. Chose in action, to whom descends on, § 954. Co-trustee, of, survivors may exercise powers, § 860. Devisee or legatee of a limited interest, of, effect of, § 1344. Devisee or legatee, of before testator, rights of descendants, §§ 1310, 1343. Distribution of common property on, of husband, § 1402. Distribution of common property on, of wife, § 1401. Effect of, on hiring, § 1934. Employee, of, action for, § 1970. See Master and Servant. Employer or employee, death of, effect on employment, §§ 1996-1998. Execution of power, where one of persons in whom vested dies, § 860. Gift in view of. See Gift. Heir advanced to, of, before devisor, § 1399. INDEX. 1071 DEATH. (Continued.) Hiring tt?rminated by, when and where not, § 1934. Husband or wife, of, effect on homestead, § 1265. Insured, change of interest by death of, effect of, § 2556. Interest under will deemed created at, § 749. Joint emijloyee, death of, duty of survivor, § 1991. Joint guardian, of, power of survivor, § 252. Legacies and devises vest at, § 1340. Maker of instrument bearing nominal date, of, effect of, § 3094. Mate, of, who entitled to wages, § 2062. Marriage, dissolved by, § 90. Master, death of, effect on apprenticeship, § 266. Minor, of, representative may disaffirm contract, § 35. Notice of dishonor, how served after, § 3145. Notice of dishonor in ignorance of, effect of, § 3146. Of partner, dissolution of partnership, § 2450. Parent, custody of child on death of, § 197. Parent, of, leaving child unprovided, remedy of supervisors, § 205. Eevokes proposal, § 1587. Satisfying gift or legacy before death, § 1367. Seamen, of, who entitled to wages § 2062. Spouse, of, effect on homestead. See Homesteads. Trustee, office of vacated b}^, § 2281. "Without heir," etc., defined, § 1071. DEBT. See Creditor; Debtor. Agreement to answer for, of another, § 1624. Extinguished by offer of payment when, § 1500. Homestead, liable for certain debts, § 1241. Husband not liable for antenuptial, § 170. Legacies, how charged with, §§ 1360, 1361. Liability of beneficiaries for testator's, § 1377. Partner in liquidation may collect, compromise, etc., § 2461. Partner may require partnership property to be applied to, § 2405. Pledgee cannot sell evidences of, § 3006. Separate property of wife liable for her own, § 171. Separate property of wife not liable for of husband, § 171. Special partner, liability for, § 2501. Special partner's contribution liable for, § 2501. Stockholder, liability of for, § 322. Testator, property of, how disposed of in payment of, § ]359. Wife, earnings of, not liable for, of husband, § 168. DEBTOR. See Assignment for Creditors; Creditor; Debt; Fraudulent Conveyance. Application of general performance by, § 1479. Application of payment of interest, § 1479. Application of performance, § 1479. See Obligations. Contracts valid against creditors, when, § 3431. Creditor can avoid act of for fraud, when only, § 3441. Creditor, defined, § 3430. Debtor, defined, § 3429. Effect of directions to, by creditor, as to manner of performance, § 1476. Fraudulent misrepresentation of, as to pledge, § 2999. Guaranty, need not be written, when, § 2794. Insolvent, defined, § 3450. Joint, release of one, effect of, § 1543. 1072 INDEX. -^ DEBTOR. (Continued.) Marshaling of assets, § 3433. Novation by substituting new for old, § 1531. Novation. See Novation. Offer of payment or performance stops interest, § 1504. Oft'er of performance by or for, § 1487. Performance by joint debtor, § 1474. Performance must be made by or for, § 1473. Preferences, may give, § 3432. Receipt may require, § 1499. Relative rights of creditors, § 3433. Release, obligation when extinguished by, § 1541 Release of, by creditor, effect of, § 1542. Rights of, upon prevention of performance, §§ 1512-1514. Surplus of rents and profits of trust liable to creditors, when, § 859. DECEIT. See Fraud. An essential element of fraud, § 1572. Class of persons, deceit upon, effect of, § 1711. False representations, § 1710. In general, §§ 1709-1711. One willfully deceiving another, liability, § 1709. Public deceit with intent to defraud, effect of, § 1711. Renders contract voidable, § 1567. Restoration of thing wrongfully acquired, §§ 1712, 1713. Upon the public, effect of, § l7ll. What constitutes, § 1710. When actionable, §§ 1709, 1710. DECK. Freight not to be stowed on, § 2117. Tilings stowed on, general average, § 2154. DECLARATION. Abandonment of homestead, of, §§ 1243, 1244. Homestead, of, effect of filing for record, §§ 1265, 1269. Homestead, of how acknowledged, §§ 1262, 1266. Homestead, of, to be recorded, §§ 1264, 1268. Homestead, of, what to contain, §§ 1263, 1267. Marriage, of, action to compel, § 78. Marriage, of, how made, §§ 75, 76. Marriage, of, to be acknowledged and recorded, § 77. Oath includes, § 14. Testator's, inadmissible to show intent §§ 1318, 1340. Trust, of, act in contravention to, void. § 870. Trust, of, effect of omitting in grant, § 869. Trust, of, trustee must obey, § 2258. Trust, of, what to express, § 2253. * - DEED. See Conveyance; Deeds of Trust; Transfer. After-acquired title passes by, § 1106. Agreement to sell realty binds one to execute sufficient conveyance. § 1731. Cancellation of, does not revest title, § 1058. Cemetery corporations, deeds by/ Appendix, tit. "Corporations." Change of name, conveyance in case of, § 1096. Code does not affect deeds made before, §§ 1205, 1206. Conclusiveness as to parties and privies, § 1107. Conditions in. See Conditions. Conveyance defined, § 1215. INDEX. 1078 DEED. (Continued.) Covenants. See Covenants. Damages for breach of covenants in, §§ 3304, 3305. Defeasance, right to show absolute deed made subject to, § 2925. Defect in, curing, § 1207. Delivery, constructive, what is, § 1059. Delivery necessary to, § 1054. Delivery presumed to be at date, § 1055. Delivery to grantee or agent must be absolute, § 1056. Delivery to stranger, effect of, § 1059. Escrow, delivery in, § 1057. Fee presumed to pass, § 1105. Form of, § 1092. Grant includes, § 1053. Grant. See Grant. Guardian may be appointed by, § 241. Heir, conveyance by, valid unless will proved within four years, § 1364. Highway, transfer of land bounded on, what passes, § 1112. Incident passes with transfer of principal, § 1084. Incident, transfer of, does not carry principal, § 1084. Incident, follow thing transferred, § 1084. Inheritance, words ot, unnecessary to pass fee, § 1072. Interpretation of. See Conveyances. Married woman's, effect of, § 1187. Married woman's, acknowledged, as if not married, § 1093. Married woman's, made how, § 1093. Precedent conditions, grant on when passes title, § 1110. Recitals in, resorting to, in interpreting, § 1068. Recording. See Eecording. Redelivery, does not revest title, § 1058. Re-entry, when and how made, § 791. Reservation interpreted in favor of grantor, § 1069. Right of re-entry can be transferred, § 1046. Surrendering or canceling of grant does not reconvey, § 1058. Third person, grant may inure to benefit of, § 1085. Time of creation of interest created by, § 749. Title deeds, to whom belong, § 994. Title, what passes, § 1083. When deemed a mortgage, §§ 2924, 2925. DEEDS OF TRUST. Trustee under, not subject to supervision of superintendent of banks. Appendix, tit. "Banking," § 101. DEFAMATION. See Libel; Slander. How effected, § 44. Right to protection from, § 43. DEFAULT. See Statute of Frauds. Divorce by, § 130. DEFEASANCE. See Mortgages, DEFECT. (Certificate of acknowledgment, in, action to remedy, § 1202. See Ac- knowledgments. Depositor must indemnify depositary for, § 1833. Lender must indemnify borrower for, § 1893. Civ. Codfi — 08 1074 INDEX. DEFECT. (Continued.) Warranty of manufacturer against latent, § 1769. Will, in description in, § 1340. DEFINITIONS. See Words and Phrases. Abandonment, § 2716. Absolute ownership, § 679. Accord, § 1521. Actual agency, § 2299. Actual authority, § 2316. Actual fraud, § 1572. Actual notice, § 18. Adultery, § 93. Adults, § 27. Advancements, § 1397. Agency, § 2295. Agency, actual, § 2299. Agency, ostensible, § 2300. Agent, § 2295. Agents, general and special, § 2297. Agreement to buy, § 1728. Agreement to sell, § 1727. Agreement to sell and buy, § 1729. Annuities, § 1357. Appurtenances, § 662. Appurtenances of ship, § 961. Articles of incorporation, § 289. Auctions, § 1792. Authority, actual, § 2299. Authority, ostensible, § 2317. Baggage, § 2181. Bail, § 2780. Bank. Appendix, tit. "Banking," § 2. Beneficiary, § 2218. Bill of exchange, § 3171. Bill of lading, § 2126. Bottomry, § 3017. ■ Building and loan corporations, § 648. Carriage, contract of, § 2085. Carriers, inland, § 2087. Carriers, marine, § ^087. Charter-party, § 1959. Chattel interests, § 765. Chattels real, § 765. Check, § 3254. Chose in action, § 953. Collateral consanguinity, § 1390. Collusion, § 114. Commercial bank. Appendix, tit. "Banking," § 5. Common carrier, § 2168. Community property, §§ 164, 687. Compensation, § 3274. Completion of appropriation, § 1417. Concealment, § 2561. Conditional devises and bequests, § 1345. Conditional limitation, § 778. Conditions concurrent, § 1437. Conditions precedent, §§ 708, 1346, 1436. Conditions subsequent, §§ 708, 1349, 1438. INDEX. 107( DEFINITIONS. (Continued.) Condonation, § 115. Connivance, § 112. Consignee, § 2110. Consignor, § 2110. Constructive fraud, § 1573. Constructive notice, § 18. Contingent interests, § 695. Continuing guaranty, § 2814. Contract, § 1549. Contract, executed, § 1661. Contract, executory, § 1661. Contract, express, § 1620. Contract, implied, § 1621. Contract, object of, § 1595. Contract of carriage, defined, § 2085. Contract of mutual insurance, § 453d. Contract of mutual insurance on assessment plan, § 453d. Conveyance, § 1215. Corporation, § 283. Corporations, private, § 284. Corporations, public, § 284. Covenants, running with the land, § 1460. Create debts, § 579. Creditor, § 3430. Debtor, § 3429. Demonstrative legacy, § 1357. Depose, § 14. Deposit for exchange, § 1818. Deposit for safe-keeping, § 1817. Deposit, gratuitous, § 1844. Desertion, § 95. Detriment, § 3282. Deviation, § 2694. Direct consanguinity, § 1390. Domestic navigation, § 962. Domestic ship, § 963. Dominant tenement, § 803. Double insurance, § 2641. Duress, § 1569. Employment, contract of, § 1965. Employment for specific term, § 1999. Entire mortgage guaranty, § 453bb. Equipments, §961. Escrow, § 1057. Exchange, § 1804. Executed contract, § 1661. Executory contract, § 1661. Express contracts, § 1620. Extreme cruelty, § 94. Factor, §§2026, 2367. Fee, § 762. Fixtures, § 660. Foreign bill of exchange, § 3224. Foreign navigation, § 962. Foreign shipy.§ 963. Fraud, actual, § 1572. Fraud, constructive, § 1573. Freeholds, § 765. 1076 INDEX. DEFINITIONS. (Continued.) Free shares, § 634. Freight, § 2110. Freightage, §§2110, 2661. Future interest, § 690. General agent, § 2297. General average, § 2148. General indorsement, § 3112. General legacies, § 1357. General letter of credit, § 2861. General lien, § 2874. General partnership, § 2424. Gift, § 1146. Gift, causa mortis, § 1149. Good consideration, § 1605. Good-will, § 992. Grant, § 1053. Gratuitous deposit, § 1844. Guaranty, § 2787. Guaranty, continuing, § 2814. Guardian, § 236. Guardian, general, § 239. Guardian, special, § 240. Habitual intemperance, § 106. Head of family, § 1261. Hiring, § 1925. Holographic will, § 1277. Homestead corporation, § 557. Hydraulic mining, § 1425. Implied contract, § 1621. Impossibility, § 1597. Income, § 748. Incumbrance, § 1114. Indemnity, § 2772. Indorsee in due cause, § 3123. Indorsement, § 3108. Indorser, § 3108. Inland bill of exchange, § 3224. Inland carriers, § 2087. Insolvency, §§ 3077, 3450. Insurable interest, § 2546. Insurance, § 2527. Insured, § 2538. Insurer, § 2538. Interest, § 1915. Interest in common, § 685. Involuntary trust, § 2217. Jettison, § 2148. Joint interest, § 683. Land, § 659. Letter of credit, § 2858. Letter of credit, general, § 2861. Letter of credit, special, § 2861. Libel, § 45. Lien, § 2872. Liens, general, § 2874. Liens, special, § 2875. Limited interest, § 692. Loan, § 1884. INDEX. 1077 DEFINITIONS. (Continued.) Loan for exchange, § 1902. Loan for money, § 1912. Manager of ship, § 2070. Managing owner of ship, § 2070. Marine carriers, § 2087. Marine insurance, § 2655. Marriage, § 55. ■ Mate, § 2048. Mistake of fact, § 1577. Mistake of law, § 1578. Month, § 14. Mortgage, § 2920. Mortgage insurance, § 453bb. Mortgage participation certificate, § 453bb. Negotiable instrument, § 3087. Novation, § 1530. Nuisance, § 3479. Nuisance, private, § 3481. Nuisance, public, § 3480. Object of contract, § 1595. Obligation, § 1427. Olographic will, § 1277. Open policy, § 2595. Ostensible agency, § 2300. Ostensible authority, § 2317. Ownership, § 654. Partnership, § 2395. Partnership, general, § 2424. Partnership interest, § 684. Payment, § 1478. Perpetual interest, § 691. Personal property, § 663. Pledge, §§ 2986, 2987. Pledged shares, § 634. Policy of insurance, § 2586. Policy of mortgage insurance, § 453bb. Policy of title insurance, § 453v. Prescription, § 1007. Present interest, § 689. Private nuisance, § 3481. Privileged communication, § 47. Promissory note, § 3244. Property, §§ 14, 654. Public nuisance, § 3480. Qualified ownership, § 680. Keal property, § 14. Recrimination, § 122. Reinsurance, § 2646. Remainder, § 769. Residuary legacies, § 1357. Respondentia, § 3036. Reversion, § 768. Running policy, § 2597. Sale, § 1721. Satisfaction, § 1523. Savings bank. Appendix, tit. "Banking," § 4, Seamen, § 2049. Seaworthiness, § 2682. 1078 INDEX. DEFINITIONS. (Continued.) Security, § 453bb. Separate property of husband, § 163. Separate property of wife, § 162. Servant, §§ 2009, 2012. Servient tenement, § 803. Several or sole ownership, § 681. Shares, free, § 631. Shares, pledged, § 634, Ship, § 960. Shipping, § 960. Slander, § 46. Special agent, § 2297. Special indorsement, § 3113. Special letter of credit, § 2861. Special liens, § 2875. Specific legacy, § 13.57. Storage, § 1851. Succession, § 1383. Surplus, § 453dd. Surety, § 2831. Testify, § 14. Thing in action, § 953. Time, unreasonable lapse of, § 125. Transfer, §§ 1039, 1040. Trust company. Appendix, tit. "Banking, § 6. Trust, court. Appendix, tit. "Banking," § 101. Trust, private. Appendix, tit. "Banking," § 101. Trustee, § 2218. Trust funds. Appendix, tit. "Banking," § 98. Trustor, § 2218. Trusts, involuntary, § 2217. Trusts, voluntary, § 2216. Undue influence, § 1575. Valued policy, § 2596. Vested future interest, § 694. Voluntary transfer, § 1040. Voluntary trust, § 2216. Ward, § 237. Warranty, § 1763. Willful neglect, § 105. Words and phrases. See Words and Phrases. DEGREE. Of kindred, how established, § 1389. DELAY. Carrier to travel without unreasonable, § 2104. Creditor, of, does not discharge guarantor, § 2823. Deemed deviation, when, § 2694. Excuse of performance by, § 1511. How excused, § 1511. In performance, may be compensated for, when, § 1492. Insurance, notice of loss under, to be given without, §§ 2633, 2636. Marine carrier not to delay in voyage, § 2117. Presentment, in, of notice of dishonor excused when, § 3158. Presentment, in, of promissory note, effect of, § 3248. Presentment of bill of exchange, in, effect of, § 3189. Presentment of bill of exchange, in, how excused, § 3219. INDEX. 1079 DELAY. (Continued.) Presentment of check, in, effect, § 3255. Protest, in, how excused, § 3230. Reasonable grounds for, rebuts presumption from lapse of time, § 126. DELINQUENT. Assessment, action to recover stock sold for, § 347. Assessment, sale of stock for, § 341. DELIVERY. Compelling delivery of personalty to person entitled to possession, § 3380. Constructive, what deemed to be, § 1059. Contract in writing takes effect on, § 1626. Deemed time of creation of interest, § 749. Deposit, of, by joint owners, § 1827. Deposit, of, demand necessary, § 1823. Deposit, of, on demand, § 1822. Deposit, of, place of, § 1824. Employee not to deliver without demand, § 1987. Freight, of, place of, §§ 2118, 2119. Freight, of, to holder of bill of lading, § 2131. Freight, of, to whom and manner of, §§ 2118, 2119. Gift, of, necessary, § 1147. Goods sold, of, buyer's directions, § 1757. Goods sold, of, expense of, § 1755. Goods sold, of, notice of election as to mode of, § 1756. Goods sold, of, reasonable hour, § 1758. Goods sold, of, when to be made, § 1753. Goods sold, of, where to be made, § 1754. Grdnt, of, necessary, § 1054. Grantee, to, necessarily absolute, § 1056. In escrow, § 1057. Pledge, essential in, § 2988. Presumption of time of, § 1055. Redelivery does not revest title, § 1058. Stranger, delivery to, effect of, § 1059. Thing bought, to be paid for on, § 1784. DEMAND. Agent to deliver to third person on, § 2344. Deposit need not be delivered without, § 1823. Deposits to be delivered on, § 1822. Employee not bound to deliver without, § 1987. Employee, to render account without, § 1986. Goods sold to be delivered upon, § 1753. Guarantor, upon, unnecessary, § 2807. Lent thing need not be returned unless demanded, when, § 1891. Lent thing to be returned without, when, § 1895. Negotiable instrument, of payment of, when necessary, § 3130. Pledgee, demand by and waiver of, §§ 3001, 3004. Pledgor, of performance, must be made before sale, § 3001. Restoration of thing wrongfully taken, necessity of, § 1713. Servant to deliver without, § 2014. DEPOSE. Includes what, § 14., DEPOSIT. See Depositary; "Warehouseman, Animals, of, § 1834, 1080 INDEX. DEPOSIT. (Continued.) Borrower. See Loan. Charges, sale to satisfy, § 1857. Delivery of. See Depositary. Depositor, who is, § 1814. Exchange, deposit may be for, § 1813. Exchange, for, defined, § 1818. Exchange, for, effect of, § 1878. Finder, duty of, § 1865. Finder may put thing found on storage, § 1868. Finder, obligation of, § 1864. Finder, sale of thing found, §§ 1869, 1870. Finder, surrender of thing found exonerates from liability, § 1871. Finder to notify owner, etc., § 1865. Finder. See Lost Property. Found property, claimant to prove ownership, § 1866. Gratuitous, defined, § 1844. Gratuitous, involuntary, is, § 1845. Hire, for, called storage, § 1851. Hire, for. See Storage. Ii;demnify, depositor to, § 1833. Innkeeper, with, §§ 1859, I860. Involuntary, duty of depositary, § 1816. . Involuntary, how made, § 1815. Involuntary, gratuitous, § 1845. Involuntary, or voluntary, may be, § 1813. .loint delivery may be to one depositor or to survivor, § 1828. Joint, delivery to depositors, § 1827. Joint, delivery to survivor, § 1828. Joint, performance to one creditor, effect of, §§ 1475, 1828. Keeping, deposit for, what is, § 1817. Kinds of, § 1813. Lien for storage, § 1856. Lien, sale to satisfy, § 1857. Loan. See Loan. Loss or injury, liability for, § 1838. Money in payment of debt, of, § 1500. Rightful owner, duties of, on notice to, of, § 1826. Rightful owner, notice to, of, § 1826. Safe-keeping, deposit may be for, § 1813. Safe-keeping, for, defined, § 1817. Sale of perishables, §§ 1837, 1857. Sale of property, when may be ordered, § 1857. Sale of thing found, §§ 1869, 1870. Storage, §§ 1851-1857. See Storage. Termination of, §§ 1854, 1855. Termination, right of, when agreement as to time, § 1855. Trust company, deposit of money in and discharge from liability. Appendix, tit. "Banking," § 91. Trust company, deposit of money in and reduction of bond. Appen- dix, tit. "Banking," § 93. Use of thing loaned, § 1890. Voluntary, how made, § 1814. Voluntary or involuntary, may be, § 1813. DEPOSITARY. See Deposit; Warehouseman. Adverse claim, notice of, to owner, § 1825. Animals, of, compensation for part of week, § 1853. Animals, of, duty toward, §1834. Animals, of. See Agistors. INDEX. 1081 DEPOSITARY. (Continued.) Compensation of, for part of week or month, § 185.3. Corporation authorized to act as, minimum capital required and affi- davit as to, § 290a. Damages from wrongful use, liability for, § 1836. Delivery by, must be made on demand, § 1822. Delivery by, notice to owner of adverse claim, § 1825. Delivery by, not required before demand, § 1823. Delivery by, of thing owned jointly, § 1827. Delivery by, on demand, when excused, § 1822. Delivery by, place of, § 1824. Depositor must indemnify, for what, § 1833. Depositor, who is, § 1814. Duties and liabilities prescribed by title on employment, § 1839. Gratuitous, care required of, § 1846. Gratuitous, creditor is, when, § 1505. Gratuitous, duties cease, when, § 1847. Gratuitous, notice to owner to remove, § 1847. Gratuitous, notice to remove where deposit involuntary, § 1847. Hire, for, compensation for parts of week, etcT, § 1853. Hire, for, degree of care required of, § 1852. Hire, for, finder has obligations of, when, § 1864. Hire, for, lien for charges, code provisions governing, § 1856. Hire, for, lien for storage, § 1856. Hire, for, sale of perishables or luggage for charges, right of, § 1857. Hire, for, termination of hiring, §§ 1854, 1855. Hire, for, who is, § 1851. Insurable interest of, § 2548. Involuntary, depositary entitled to no reward, § 1845. Involuntary, duties of, § 1816. Involuntary, notice to owner to remove, § 1847. Joint owners of thing deposited, delivery to whom made, § 1827. Liability for loss or injury, § 1838. Liability to rightful owner of thing deposited, § 1826. Liable, depositor is, for what damages and expenses, § 1833. Lien, code provisions governing, § 1856. Lien for advances, insurance and expenses, § 1856. Lien for expenses of sale on default, § 1856. Lien of, for storage, § 1856. Lien regulated by title on liens, § 1856. Lien, sale of property to satisfy right of, § 1857. Negligence, limitation of liability for, § 1840. Notice to owner of adverse claim, § 1825. Notice to rightful owner of thing deposited with, § 1826. Opening deposit, rights and duties as to, § 1835. Perishables, may sell when, §§ 1837, 1857. Person offering thing in performance, duty of, § 1503. Presumed to have permitted loss or injury to thing deposited, when, § 1838. Rightful owner, duties of, on notice to, of deposit, § 1826. Sale by, of storage property, right of, § 1857. Sale of thing in danger of perishing, § 1837. Sale of perisliables or luggage for charges, right of, § 1857. Seller of personalty is, before delivery, § 1748. Service by, duties and liabilities prescribed by title on employment, § 1839. Thing wrongfully detained, exoneration of depositary, § 1826. Thing wrongfully detained, notice to owner by depositary, § 1826. 1082 INDEX. DEPOSITARY. (Continued.) Trust company, deposit of money in and discharge from liability, Appendix, tit. "Banking," § 91. Trust company, deposit of personal assets in and reduction of bond. Appendix, tit. "Banking," § 93. Use of deposit, rights and obligations as to, § 1835. Use, wrongful, liability for, § 1836. Who is, §§ 1814, 1851. DEPUTY. Acknowledgments, may take, § 1184. DESCENT. See Succession. Homestead, succession to on death of spouse, § 1265. Statute of, descents, § 1386. DESCRIPTION. Agreement to compensate for errors of, effect of, § 1690. Error of, in will, how remedied, § 1340. DESERTION. See Divorce. DESIGNS. See Literary Property. Ownership of, § 9'80. DESTROYED RECORDS OR DOCUMENTS. See Burnt Eeeords and Documents; Lost Instruments. DESTRUCTION. Of will is revocation, § 1292. Of will, how proved, § 1293. Of written contract, effect of, §§ 1699, 1700. DETENTION. Of person or property avoids contract, when, § 1569. Of property, damages for, § 3335. DETRIMENT. See Compensation; Damages. Defined, § 3282. DEVIATION. See Marine Carriers. Carrier not to make, § 2104. Defined, § 2694. Marine carrier not to make, § 2117. Marine Insurance, §§ 2692-2697. DEVISE. See Wills. DEVISEES. See Wills. DILIGENCE. See Care. DIRECTION. Buyer's, as to delivery, § 1757. Carrier to follow whose, §§ 2115, 2116. Employee to follow. § 1981. Factor to follow, § 2027. Trustee must follow, § 2258. DIRECTOR. See Corporations, VII. Banks, of. See Banks and Banking. Number of, in corporations not organized for profit, § 593. INDEX. 1083 DISAFFIRMANCE. Of infants' contracts, §§ 35, 37. DISCHARGE. Of employee, §§ 1996, 2000, 2015. See Master and Servant. Of principal does not discharge guarantor, when, § 2825. Of trustee, §§ 2233, 2282. Of trustee, duties of, before accepting his, § 2260. Of trustee, who succeeds after, §§ 2287-2289. DISHONOR. See Negotiable Instruments, XII. DISMISSAL. Consent necessary to after interlocutory decree of divorce entered, §131. DISSOLUTION. Corporations. See Corporations, XVII. Non-profit, co-operative, agricultural, viticultural, and horticultural association, of, § 653q. Partnership, of. See Partnership. Savings and loan corporation, disposal of reserve fund, § 577. DISTRIBUTION. See Succession. Community property, on divorce, § 147. Effect of advancement on distribution of estate, §§ 1395-1399. Intestates, of property of, §§ 1384, 1386. Order for, subject to revision on appeal, § 148. Eules of descent and distribution in case of intestacy, § 1386. Eules of, where one dies intestate, § 1386. DISTRICT ATTORNEY. Action for penalty against bridge, ferry, etc., corporation, § 530. Duty where foreign corporation fails to file articles, § 410. Examination into affairs of corporation by, § 382. May consent to adoption of child, when, § 224. DISTRICT COURT OF APPEALS. Judges of, may solemnize marriage, § 70. DITCH. See Flumes. DIVIDENDS. See Corporations, XIV; Fire and Marine Insurance Cor- porations; Title Insurance Corporations. Amounts to be reserved before making, by insurance corporation, §§ 429, 431, 432, 452. Assignee for creditors, by, § 3468. Mortgage insurance corporations, by, § 453dd. Savings and loan corporations, dividends of, §§ 573, 583. Stock payable to mariied women, on, to whom paid, §§ 325, 575. DIVISION FENCE. Duties of coterminous owners, § 841. Easement of maintenance, § 801. DIVORCE. Adultery a ground for, § 92. Adultery, community property, how disposed of, §§ 146, 147, 148. Adultery defined, § 93. Adultery, homestead, how disposed of, §§ 146, 147, 148. Adultery, limitation of action for divorce, § 124. 1084 INDEX. DIVORCE. (Continued.) Adultery of husband, legitimacy of children, how affected by divorce for, § 144. Adultery of wife, legitimacy of children, how affected, § 145. Alimony, community and separate property, order of resort to, § 141. Alimony, execution for, § 137. Alimony, modifying orders granting, §§ 137, 139. Alimony, pendente lite, when allowed, § 137. Alimony, permanent, modifying or vacating orders relating to, § 138. Alimony, permanent, when allowed, § 139. Alimony, receiver, § 140. Alimony, security for, § 140. Alimony, separate property when not subject to, § 142. Alimony, when divorce not granted, § 136. Alimony, when wife has sufficient support, § 142. Annulment of marriage, §§ 82-86. Appeal, revision of order disposing of property, § 148. Children are legitimate, § 1387. Children, community and separate property may be subjected to sup- port of, § 143. Children, community and separate property, order of resort to for support of, § 141. Children, custody, care and maintenance of, §§ 138, 139. Children, legitimacy, how affected by divorce for adultery, §§ 144, 145. Children, maintenance and education, security for, § 140. Children, order relating to, modification and vacation of, §§ 138, 139. Children, providing for, where divorce denied, § 136. Children. See Parent and Child. Collusion defeats, § 111. Collusion defined, § 114. Collusion, presumption of, from lapse of time, §§ 125, 126. Community and separate property subject to support of children, §143. Community or separate property, order of resort to for support of children, § 141. Community property disposed of, how, §§ 146, 147. Community property, order disposing of, subjec-t to appeal, § 148. Condonation as a bar, §§ 111, 123. Condonation avoided by concealment, § 120. Condonation cures desertion, § 102. Condonation defeats, § 111. Condonation defined, § 115. Condonation, evidence of, what is not, § 118. Condonation, implies what, § 117. Condition in case of cruelty, §§ 118, 119. Condonation, presumption of, from lapse of time, §§ 125, 126. Condonation, recriminatory defense, § 123. Condonation, refusal of offer of amounts to desertion, § 102. Condonation, requisites to, § 116. Condonation revoked by what acts, § 121. Condonation, when only can be made in certain cases, § 119. Connivance defeats, § 111. Connivance, defined, § 112. Connivance manifested, how, § 113. Connivance, presumption of, from lapse of time, §§ 125, 126. Consent, corrupt, how manifested, § 113. Conviction of felony a ground of, § 92. Conviction of felony, limitation of action for divorce, § 124. Counsel fees, allowing pendente lite, § 137. INDEX. 1085 DIVORCE. (Continued.) Counsel fees, execution for, § 137. Counsel fees, what property to be resorted to, § 141. Cross-complaint in, cross-comjylainant must personally verify, § 128. Cross-complaint in, cross-complainant need not be a resident, § 128. Cruelty, arising from course of offense, conduct, condonation in case of, § 118. Cruelty, condonation in ease of excessive acts of cruelty, § 118. Cruelty, condonation, when only can be made, § 119. Cruelty, desertion induced by, § 98. Cruelty, extreme, defined, § 94. Cruelty, extreme, a ground of divorce, § 92. Cruelty, extreme, disposition of community property, §§ 146, 147, 148. Cruelty, extreme, homestead, how disposed of, §§ 146, 147, 148. Cruety. extreme, what is, § 94. Cruelty, what acts not evidence of condonation, § 118. Custody of children, modification or vacation of orders, § 138. Custody of children, orders respecting, § 138. Decision and conclusions of law filed as in other cases, § 131. Decree, decision and conclusions filed as in other cases, § 131. Decree not granted on uncorroborated statements, § 130. Decree on findings or statements of referee, § 130. Decree restores parties to unmarried state, § 91. Decree where divorce not granted, § 131. Decree. See post. Interlocutory Judgment. Default, decree not granted by, § 130. Default, proof of allegations, § 130. Defenses to actions for, § 111. Denying, grounds for, § 111. Desertion by refusal to abide by husband's selection of home, § 103. Desertion, by selecting unfit domicile, § 104. Desertion cured, how, § 102. Desertion defined, § 95. Desertion, in case of cruelty, who commits, § 98. Desertion, in case of fraud or stratagem, who commits, § 97. Desertion, induced by cruelty, § 98. Desertion, induced by fraud or stratagem, § 97, Desertion, manifested, how, § 96. Desertion, mode of living, providing unfit, § 104. Desertion, mode of living, refusal to accept husband's, § 103. Desertion must extend one year, § 107. Desertion, refusal of offer of condonation amounts to, § 102. Desertion, refusal of reconciliation amounts to, when, § 101. Desertion, return and soliciting of condonation cures, § 102. Desertion, separation becomes, when, § 100. Desertion, separation by consent is not, § 99. Desertion, what amounts to, § 96. Desertion, willful, a ground for, § 92. Disposition of homestead and community, mode of, § 146. Disposition of homestead and community, order for § 147. Disposition of homestead and community, revision of order for, on appeal, § 148. Disposition of property, order for, § 147. Domicile, each spouse may have on separation, § 129. Domicile fixed by husband, refusal of wife to abide by, is desertion, §103. Domicile, husband may fix, § 103. Domicile of wife in actions for, § 129. Domicile, presumptions as to do not apply in, § 129. 1086 INDEX. DIVORCE. (Continued.) Domicile, unfit, husband selecting, amounts to desertion, § 104. Eifect of decree of divorce, § 91. Evidence, not granted on uncorroborated testimony of parties, § 130. Evidence of facts alleged necessary, § 130. Final judgment entered when divorce denied, § 131. Final judgment when entered on interlocutory judgment and rights on, § 132. Grounds for, § 92. Grounds for denying, § 111. Habitual intemperance, a ground of divorce, § 92. Habitual intemperance, defined, § 106. Habitual intemperance, must extend one year, § 107. Homestead disposed of, how, §§ 146, 147. Homestead, order disposing of, appealable, § 148. Interlocutory judgment, appeal may be taken in six months, provision repealed, § 131, Legislation, note. Interlocutory judgment, death of party after, effect on right to enter final judgment, § 132. Interlocutory judgment entered when divorce granted, § 131. Interlocutorv judgment, final decree entered on motion of either party, §"132. Interlocutory judgment, final decree, entry of no defense to criminal prosecution, § 132. Interlocutory judgment, final decree, entry of, on, does not validate prior marriage, § 132. Interlocutory judgment, final decree may be entered on in one year, § 132. Interlocutory judgment, final decree on, effect of and rights under, §132. Interlocutory judgment, final decree, relief that may be granted on, §132. Interlocutory judgment, final decree, when entered where appeal taken or new trial asked, § 132. Interlocutory judgment, neither party can dismiss after, without con- sent of other, § 131. Interlocutory judgment, remarriage within one year from entry of, void, § 61. Lapse of time defeats, §§ 111, 124. Lapse of time establishes what presumptions, §§ 125, 126. Lapse of time, unreasonable, what is, § 125. Legitimacy of children born after, § 194. Legitimacy of children when divorce for adultery of husband, § 144. Legitimacy of children when divorce for adultery of wife, § 145. Limitation defeats, § 111. Limitation of actions for, §§ 124-127. Limitations prescribed in chapter on divorce, § 127. Maintenance, action for without divorce, § 137. Maintenance, community and separate property, order of resort to, § 141. Maintenance, decreeing when divorce denied, § 136. Maintenance, receiver of property, appointing, "to secure, § 140. Maintenance, security for, § 140. Maintenance, what property resorted to, § 141. Maintenance, where divorce denied, § 136. Maintenance without divorce, final judgment how enforced, § 137. Maintenance without divorce, granting alimony, § 137. Maintenance without divorce, orders, modifjdng or revoking, § 137. Marriage, how dissolved, generally, § 90. INDEX. 1087 DIVORCE. (Continued.) Marriage. See Marriage. Nullity of marriage, effect on legitimacy of children, § 84. Presumptions of connivance, collusion, condonation or acquiescence, arising from lapse of time, §§ 125, 126. Proof of facts alleged necessary, § 130. Receiver, appointment of, to secure alimony and allowances, § 140. Recrimination defeats, § 111. Recrimination defined, § 122. Recrimintory defense, condonation of, § 123. Referee, decree not granted on any finding or statement of, § 130. Referee, proof of statements or findings of, § 130. Referee, proof to be on question and answer, § 130. Remarriage within one year from entry of interlocutory decree for- bidden, § 61. Residence, actual, proof of required, § 129. Residence, length of, required of plaintiff, § 128. Residence, presumptions do not apply in proof of, § 129. Separate and community property subject to support of children, §143. Separate or community property, order of resort to, § 141. Separate property, when not subject to allowance, § 142. Separation, .agreement for. See Husband and Wife. Separation by consent, refusal of reconciliation after, § 101. Separation, consent to, revocable, § 101. Separation, each spouse may have separate domicile on, § 129. Separation, when amounts to desertion, §§ 100, 101. Separation, when not desertion, § 99. Separation. See Separation. Willful neglect, a ground for divorce, § 92. Willful neglect, defined, § 105. Willful neglect, must extend one year, § 107. DOG. See Animals. Killing sheep by, § 3341. DOMESTIC NAVIGATION. Defined, § 962. Domestic ship, what is, § 963. Vessel, when engaged in, § 962. DOMESTIC RELATIONS. See Divorce; Guardian and Ward; Husband and Wife; Parent and Child. Abduction forbidden, § 49. Adoption. See Adoption. Assault or wrongful injury, protection against, § 50. Enticement forbidden, § 49. See Enticement. Seduction forbidden, § 49. DOMICILE. Divorce, proof of actual, required in, § 129. Husband selects unfit, wife not bound, § 104. Husband to select, §§ 103, 156. In divorce, requisites in regard to, § 128. Infant's, § 213. Law of, governs personal property, § 946. Separation of husband and wife, domicile in case of, § 129. Unfit, selecting, amounts to desertion, § 104. Wife, domicile of, on suit for divorce, § 129. 1088 INDEX. DOMINANT TENEMENT. See Easements, DOUBLE INSURANCE. See Insurance. DOUBTFUL WORDS. See Construction. In will, § 1323. In contract, § 1654. DOWER. Not allowed, § 173. DUEL. Damages for injuries inflicted in, §§ 3347, 3348. DUPLICATE. Alteration of, effect of, § 1701. Destruction of, effect of, § 1701. Will, of, revocation of, § 1295. DURESS. As ground for annulment of marriage, § 82. Consent to contract obtained by, §§ 1567, 1568. Consists in what, § 1569. Contract under, voidable, § 1567, 1689. Marriage voidable when consent obtained by force, § 58. Rescission for, § 1689. Will procured or revoked by, § 1272. E EARNINGS. Child's, effect of abandonment by parent, § 211. Illegitimate unmarried minor, of, § 200. Legitimate unmarried miror, of, § 197. Minor children, of, §§ 169, 212. Vv'ife, of, §§ 168, 169. EASEMENTS. Action by owner of servient tenement for possession, § 810. Action by owner or occupant of dominant estate, to enforce, § 809. Apportionment of, on partition, § 807. Attached to land, enumeration of, § 801. Attached to land, not, enumerated, § 802. Dominant tenement defined, § 803. Enumeration of, §§ 801, 802. Extent of, § 806. Extinguished, how, § 811. _ Future owner, right of, to, § 808. Grantable by whom, § 804. Held by whom, § 805. How far usable by expectant owner, § 808. Irrigation, right of, § 552. Lateral and subjacent support, § 832. Not attached to land enumerated, § 802. Partition of estate, apportionment of, § 807. Servient tenement, action by owner of, for possession, § 810. Servient tenement defined, § 803. Servitude, owner of servient tenement cannot hold, § 805. Transfer of property carries, § 1104. What pass with property conveyed, § 1104. INDEX. 1089 EASEMENTS. (Continuea.) Who cannot hold, § 805. Who only can create, § 804. EDUCATION. See Colleges and Seminaries of Learning. EJECTMENT. Damages for wrougful occupation, measure of, § 3334. Notice not necessary before action, § 793. Possession of real property, how recovered, § 3375. Tenant to give notice of, § 1949. ELECTION. Accession to personalty, election of owner, § 1032. Notice of election as to delivery of chattel, § 1756. ELECTIONS. Corporate. See Corporations. Day of election a holiday, § 7. ELECTRIC CORPORATION. See Lighting Corporation. Franchises, proceedings prior to the grant or sale of, § 497. Provisions of code relating to repealed, §§ 629, 630, 630a, 631, 632. ELECTRICITY. Appropriation of water for development of, limit of time of, § 1410. Appropriation of water for generation of, time for development of works, § 1416. Rights of steam railroad to use, § 465a. ELEVATED RAILWAYS. Franchise for, majority of frontage to sign petition, § 492. Franchise for, terms and conditions, §§ 492, 498. Supervisors may grant franchise for, § 492. EMANCIPATION. Of child, §211. EMINENT DOMAIN, "Agent of the state," who is, § 1001. Crossings, railroad, condemning land for, § 472. "Person in charge" of public use, who is, § 1001. Right of, in general, § 1001. Who may exercise right of, § 1001. EMPLOYMENT. See Master and Servant. Gratuitous carriers, duties of, §§ 2089, 2090, 2096, 2114. Lien for services performed about personalty. See Service. Service without, compensation and expenses, § 2078. Service without, duties in case of, § 2078. ENCUMBRANCE. See Chattel Mortgage; Encumbrancer; Lien; Mort- gage. Covenant against, form of, § 1734. Covenant against, included in agreement to give usual covenants, § 1733. Damages for breach of covenant against, § 3305. Encumbrance imposed on devised property not a revocation, § 1302. Encumbrance includes what, § 1114. Implied covenants against, § 1113. Civ. Code — 69 1090 INDEX. ENCUMBRANCER. See Encumbrance. Encumbrancer defined, § 1114. Grant is a revocation of a power to revoke or modify in favor of, when, § 1229. Grant, how far conclusive as to, § 1107. Instruments, when void against, § 1227. Instruments, when not void against, § 122.S. Lien of seller or buyer not valid against, § 3048. Measure of damages for breach of covenant against encumbrance, § 3305. Mortgage, effect of, against subsequent, § 2957. Obligation respecting real property not enforced against subsequent, § 3395. Recorded instruments as notice to although defective, curative act, § 1207. Resulting trust not to prejudice, § 856. Rights of encumbrancer under one claiming by succession, effect of will on, § 1364. Transfers void against, § 3440. ENDOWMENT INSURANCE. See Mutual Insurance on Assessment Plan. ENEMY, PUBLIC, See War. Cannot be insured, § 2540. Carrier liable for acts of, if negligent, § 2195. Carrier not liable for damages caused by, § 2194. Performance prevente^d by, § 1511. ENROLLMENT. Of vessels governed by federal laws, § 966. ENTICEMENT. Apprentice, of, a misdemeanor, § 275., Child from guardian forbidden, § 49. Child from parent, forbidden, § 49. Of wife, forbidden, § 49. ENTRY. Right of, may be transferred, § 1046. EQUAL RIGHTS. See Civil Rights. EQUITABLE CONVERSION. Under will, § 1338. EQUITY. See Cancellation; Injunctions; Preventive Relief; Reforma- tion; Rescission; Specific Performance; Specific Relief. Maxims. See Maxims. ESCHEAT. Intestate's property escheats, when, § 1386. Proceedings where succession to estate not claimed, §§" 1405, 1406. Property' escheated, subject to charges and trusts, § 1407. When occurs, § 1406. ESCROW. Delivery in, § 1057. Definition of, § 1057. Right to receive znoney or propert.y in, without supervision of su- perintendent of banks. Appendix, tit. "Banking," § 101. INDEX. 1091 ESTATES. See Estates of Decedents; Property; Real Property; Suc- cession; Wills. Conveyance by heir valid unless will proved within four years, § 1364. Intestates, chargeable with debts, § 1358. Life, for. See Estates for Life. Owner of rights of, in use of land, § 818. Eemainder for life or term of years must be to one in esse, § 777. Rent due upon lease for life, how recovered, § 824. Successive, cannot be limited except to persons in being, § 774. What interests in property are, § 701. Will, at. See Estates at Will. Years, for. See Estates for Years. ESTATES AT WILL. See Landlord and Tenant. Are chattel interests, § 765. Not subject to execution, § 765. Tenant may occupy buildings, § 819. Tenant may take annual products, § 819. Tenant may work open mines or quarries, § 819. Tenant's rights governed by instrument creating, § 820. How may be terminated, § 789. Termination of. See Landlord and Tenant, ESTATES FOR LIFE. Duty of owner to pay taxes, charges and assessments, § 840. Duty of owner to repair, § 840. Freeholds, are, § 765. Freehold, estate for life of third person is, § 766. Grant by owner of, of greater estate than he has, effect of, § 1108. Holding over after termination of, damages for, § 3335. Injury to inheritance, life tenant must not do, § 818. Legatee for life, inventory by and what to contain, § 1365. Limited as remainder upon term of years, to be to one in being, § 777. May be created in term of vears and- remainder limited thereon, ' § 773. Rent dependent upon life recoverable after death, § 825. Rent due on, how recovered, § 824. Right of life tenant to Lise land, § 818. Successive, cannot be limited except to persons in being at creation, §774. Successive, extending beyond lives in being, taking effect of re- mainder on, § 774. Successive, remainder on, to be in fee, § 775. ESTATES FOR YEARS. Are chattels real, § 765. Contingent remainder on, to vest during lives in being, § 776. Estate for life limited as remainder on, to be to one in esse, § 777. Estate for life may be created in, and remainder limited thereon, § 773. Grant by owner of, of greater estate than he has, effect of, § 1108. Limitation on power of suspension, right of, § 770. May commence at future day, § 773. Remainder in to be for whole residue of term, § 775. Remainder of a freehold or chattel real, may be created on term of years, § 773. Tenant may occupy buildings, § 819. Tenant may take annual products, § 819. Tenant may work mines and quarries that are open, § 819. Tenant's rights governed by instrument creating, § 820. 1092 INDEX. ESTATES OF DECEDENTS, See Executors and Administrators; Sue- cession; Wills. All property of intestate chargeable with debts, § 1358. Beneficiaries' liability for testator's obligations, § 1377. Bona fide purchaser from one claiming by succession, effect of will, § 1364. Community property on husband's death subject to debts and family allowance, § 1402. Deposit of assets in trust company and reduction of bond. Appendix, tit. "Banking," § 93. Deposit of money in trust company or bank, and discharge from lia- bility. Appendix, tit. "Banking," §§ 51, 91. Deposits- under $1,000, collecting without administration. Appendix, tit. "Banking," § 17. Expenses of administration and allowances to familj- to be first paid, § 1359. Heir's conveyance good unless will proved within four years, § 1364. Homestead selected in lifetime of spouses, disposition of on death, § 1265. Mortgage participation certificates and securities guaranteed bj'' policies of mortgage insurance as legal investments for funds of, § 453ff. Order of resort for payment of debts, § 1359. Order of resort for payment of legacies, §§ 1360, 1361. Sale of property specifically bequeathed or devised, § 1363. Shares of stock of decedent, how represented, § 313. Succession to. See Succession. Successors liable for decedent's obligations, § 1408. ESTATES OF FREEHOLD. Defined, § 765. ESTATES-TAIL. Abolished,§ 763. ESTOPPEL. After-accjuired title inures to mortgage, § 2930. Conveyance passes after-acquired title, § 1106. Failure to forbid act done on one's behalf. § 3519. Real owner cannot defeat pledge by apparent owner, § 2991. Special partnership, who estopped to question existence of, § 2503. ESTRAY. Finder of property in general, §§ 1864-1872. Lost property. See Finder; Lost Property. EVIDENCE, See Witnesses. Affidavit of annual work on mining claim or certified copy of, as evi- dence, § 1426m. Affidavits of publication of partnership names as, § 2471. Affidavits. See Affidavits. Articles of incorporation as. §§ 653o, 653v. Burden of proof to show want of consideration, § 1615. Certificate of change of names in partnership, § 2471. Certificate of proof of instrument, what to state, § 1200. Certificate of restoration of lunatic raises presumption of capacity, §40. Certificate of ship-master to exertions to save vessel, § 2059. Certified copy by secretary of corporation, § 348. Certified copy of articles of incorporation prima facie, § 297. Certified copy of record of instrument defectively executed, § 1207. INDEX. 1093 EVIDENCE. (Continued.) Certified copy of instruments required to he recorded under mining law, admissible, § 142Gq. Condonation, evidence of, § 118. Divorce, not on uncorroborated, § 130. Execution of instruments, proof of, when not acknowledged, § 1195. Handwriting proved, how, §§ 1198, 1199. Instrument, proof of execution oii,by subscribing witnesses, §§ 1195- 1197. Instruments, how proved when not acknowledged, § 1195. See Ac- knowledgments. Insurance, of loss, § 2634. Inventory of wife's separate property, evidence of title, § 166. Marriage, how proved, § 57. Notice to delinquent co-owner of mine and affidavit of, as evidence of delinquency, § 1426o. Oral stipulations, etc., superseded by writing, § 1625. Presumption of revocation of will from marriage and birth of issue, evidence to rebut, §§ 1298, 1299. Presumptions. See Presumptions. Proof of instruments. See Acknowledgments. Eecord of inventory of wife's property, § 166. Eeeord of mining location to be received in evidence, § 1426p. Eecords, certified coj^ies of instruments defectively executed as evi- dence, § 1207. Eegister of partnership names as, § 2471. Subscribing witnesses, manner of proving instrument bv, §§ 1196- 1199. Wills, affecting. See Wills, VI. EXCAVATION. Eight of, by lateral owner, § 832. EXCEPTIONS. General authority of agent, exceptions to, § 2322. EXCHANGE. Bill of. See Negotiable Instruments. Defined, § 1804. Deposit for, §§ 1813, 1818. Deposit for, effect of, § 1878. Form of contract, § 1805. Loan for, §§ 1902-1906. Loan for. See Loan. Parties have rights of buyers and sellers, § 1806. Personalty passes by, when, § 1140. Personalty passes under executory agreement, when, § 1141. Sales, provisions of code relating to, apply to, § 1806. Separation not necessary to passing of title, when, § 1140. Statute of frauds, how affects, § 1805. Title, when only transferred by executory agreement of, § 1142. Warranty on exchange of money, § 1807. Writing, necessity of, in contract of, § 1805. EXECUTION. Alimony and counsel fees, execution for, § 137. Estates at will not subject to sale under, § 705. Exemption of estates at will, § 765. Exemption of money from mutual assessment company, § 453k. Exemption of shares in building and loan association, § 643. 1094 INDEX. EXECUTION. (Continued.) Franchise may be sold under, § 388. Franchise, sale of, duties and liabilities of corporation after, § 391. Franchise, sale of, recovery by purchaser as a bar, § 390. Franchise, sale of, redemption of, § 392. Franchise, sale of, rights and duties of purchaser, § 389. Franchise, sale of, where made, § 393. Homestead not subject to, generally, § 1240. Homestead subject to, when, § 1241. Homesteads, against. See Homesteads. Homesteads, exemption of. See Homesteads. Homestead, appraisement. See Homesteads. Lien of officer levying writ, § 30-57. Mortgaged personalty, against and proceedings on, §§ 2908-2970. Mortgaged property, how levied on, § 2969. Mortgaged propertv, sale under attachment and disposition of pro- ceeds, §§ 2968, 2970. Principal bound by incomplete execution of authority, § 2331. Principal, whether bound by, in excess of authorty, § 2333. Proof of, by subscribing witness, §§ 1195-1197. Proof of execution of instrument, how made when not acknowledged, § 119-5.. See Acknowledgments. Proof of. See Acknowledgments. Redemption of franchise, § 392. Shares in building and loan association up to $1,000 are exempt fronij §643. Warranty on judicial sale, § 1777. EXECUTORS AND ADMINISTRATORS. See "Estates and Decedents; Wills. Apprentice or clerk, power of to bind child as, §§ 265, 267. Authority given to, to appoint executor is void, § 1372, Authority of, before qualification, § 1373. Chose in action, when passes to, § 954. Corporation, act authorizing to act as. Appendix, tit. "Corporations." Corporation acting as, minimum capital to be paid in and affidavit as to, § 290a. Deposit in bank or trust company and discharge from liability. Ap- pendix, tit. "Banking," §§ 51, 91, Deposit in trust company and reduction of bonds. Appendix, tit. "Banking," § 93. Devise, specific, may be authorized to sell, § 1363. Directors of banks, eligibility of executors or administrators. Ap- pendix, tit. "Banking," § 10. Disaffirmance by, of infant's contract, § 35. Executor according to the tenor of will, where not named, § 1371. Executor not to act until qualified, § 1373. Expense of administration, order of payment, § 1359. Foreign, satisfaction of mortgage on record by, § 2939^/4. Legacy, specific, may be authorized to sell, § 1363. Person intended as executor but not named, appointment of, § 1371. Power to bind minor as apprentice, § 265. Property specifically bequeathed, may be authorized to sell. § 1363, Proxies, may give, § 321b, Shares of stock of decedent, executor represents, § 313, Qualification, may do what acts before, § 1373. Qualification, not to act till, § 1373. Eights of one who was intended to be appointed, § 1371. Sale of property specifically bequeathed or devised, § 1363. INDEX. 1095 EXECUTORS AND ADMINISTRATORS. (Contiuued.) Specific bequest, may be authorized to sell, § 1363. Stock of decedent, executor to represent, § 313. Wages of deceased seamen, personal representatives entitled to, §2062. EXECUTORY. Agreement for sale of real property, effect of, § 1731. Agreement transfers title, when, § 1141. Consideration may be, § 1609. Consideration ascertained how, § 1611. Consideration need not be stated, § 1610. Contract, covenants what required by, § 1733. Contract of marriage to be in writing, § 1624. Contract defined, § 1661. Grant on condition precedent, § 1110. EXEMPLARY DAMAG-ES. See Damages. EXEMPTIONS. Assignment for creditors, exemjit propertj' does not pass, § 3470. Homestead, of, §§ 1240,1241. Homestead sale, of proceeds of, § 1257. Moneys arising under mutual assessment contract, § 453k. Shares in building and loan association up to $1,000 are exempt, § 643. Transfer of propertj^, provisions as to notice on assignment of prop- erty do not apply, § 3440. EXONERATION. See Suretyship. Carrier, of on delivery of bill of lading, § 2131. Gratuitous pledge-holder, of, § 2995. Guarantors, of, § 2819. Innkeeper, of, § 1860. Lender, of from liability, § 1892. Owner, of, from claim of finder, § 1871. Partner, of, on renunciation of future profits, § 2417. Ship-master, of, on abandonment, § 2041. Surety, of, §§ 2840, 2845. EXPECTANCY. Insurable interest in, §§ 2531, 2547, 2549. Mere expectancy is not an interest, § 700. EXPECTANT ESTATES. See Future Interests. EXPRESS COMPANIES. Letters of credit, license from superintendent of banks necessary before issuing. Appendix, tit. "Banking," § 13. Letters of credit license to issue, fee for. Appendix, tit. "Banking," §13. Letters of credit, right to issue. Appendix, tit. "Banking," § 13. EXPRESS CONTRACTS. See Contracts, I. EXTENSION. Of existence of corporations, §§ 401, 402. Of time of sale of stock, § 345. EXTREME CRUELTY. See Divorce. 1096 INDEX. -1 F FACT. Actual fraud, question of, § 1574:. Concealment makes eoudonation void, §120. Fraudulent intent, question of, § 3442. Mistake defined, § 1577. Mistake may be of law or fact, § 1576. Mistake of foreign law, a mistake of, § 1579. Mistake. See Mistake. FACTOR. Actual autborit}' of, § 2368. Agent, factor as, § 2367. Agents. See Agency. Authority, extent of, § 2368. Autliority in dealing with persons without notice of authority, § 2369. Authority to receive payment, § 2026. Barter no power to. § 2368. Consignments. See Consignment. Credit, cannot extend, § 2028. Credit, power to sell on, §§ 2028, 2368. Del credere commission, agreement need not be written, § 2794. Del credere commission, liability under, §§ 2029, 2030. Delegation of authority by, right of, § 2368. Guarantv commission, factor selling under cannot relieve himself from liability, § 2030. Guaranty commission, liability on, § 2029. Guaranty' of sales by, need not be written, § 2794. Instructions, duty to obey, § 2027. Insurance by, § 2368. Liability, cannot relieve himself from, § 2030. Lien, has, § 3053. Lien is dependent on possession, § 3053. Mortgage, cannot make, § 2368. Obedience required from, § 2027. Ostensible authority of, § 2369. Pledge, no nower to, 2368. Possession or control of property, § 2026. Sale by, for reimbursement, right of, § 2027. Sale by, on credit, §§ 2028, 2368. FAIR. Agricultural fair corporations, §§ 620-622. FALSE REPRESENTATIONS. See Deceit; Fraud; Insurance. FARE. See Carriers; Railroads. FATHER. See Parent and Child. FEDERAL COURTS. Proceedings in not stayed, § 3423. FEES. Affidavit of annual work on mining claim, fee for filing, § 1426n. Apprenticing homeless minor, no fee to be charged, § 268. Building and loan associations, what fees only may be charged by, § 634, subd. g. 1 INDEX. 1097 FEES. (Continued.) Certifying and filing certificate of extension of corporate existence, for, § 401. Filing articles of consolidation of business associations, for, § 6531. Foreign building and loan corporation, fees required of, § 646. Licenses for issuing letters of credit, fee for. Appendix, tit. "Bank- ing," § 10. Foreign corporations, fees required of, § 409. Eecorder's, § 1165. Recording of mill site claim, for, § 1426k. Recording of notice of mining claim, for, §§ 1426b, 1426d, 1426g. Recording of notice to delinquent co-owner of mine, for, § 1426o. FEE SIMPLE. Defined, § 762. Limiting upon a fee, § 773. Owner in, surface and everything above and below belongs to, § 829. Title,- when presumed to pass, § 1105. What estates are fees, § 762. Word "heirs" not necessary to pass, § 1329. W^ords of inheritance unnecessary, §§ 1072, 1329. Words of succession unnecessary to pass fee, § 1072. FEE-TAIL. Abolished, § 763. FELONY. Banking law, offenses against. See Banks and Banking, II. Building and loan association, violation of statute as to loans by officer or director, § 637. Divorce, conviction of, ground for, § 92. Divorce for, limitation of action of, § 124. Illegal loans by officer or director of building and loan society, § 637. President or manager of savings corporation consenting to loan on mining stocks, § 581. Warehouseman, violation of law by, § 1858f. Building and loan associations, illegal loans by officers or directors, §637. FEMALE. Of fifteen may marry, § 56. Under eighteen, minor, § 25. FEME COVERT. See Husband and Wife; Married Woman. FEMININE GENDER. Included in masculine, § 14. FENCES. See Real Property. Coterminous owner bound to maintain, § 841. Division, easement of maintenance, § 801. Duty of life tenant to repair, § 840. Easement, an, §801. Railroad's duty and liability respecting, § 485. Tenant for life to repair, § 840. FERRY. See Bridge, Ferry, Wharf, Chute and Pier Corporations. Rights and duty of wagon-road corporations respecting, § 514. Statutes governing ferry corporations apply where owned by in- dividual, § 531. 1098 INDEX. FICTITIOUS. Name in partnership. See Partnership. Payee, negotiable instrument payable to, is payable to bearer, § 3103. FILING. Affidavits of sale of delinquent stock, § 348. Articles of incorporation, § 296. See Corporations, IV. Articles, duty of secretary of state, § 296. Articles, prerequisite to, §§ 293, 296. Inventory of wife's separate property, §§ 165, 166. FINDER. See Lost Property. Abandoned property, statute as to lost property does not applv to, § 1872. Animals, duty of, § 1865. Claimant to prove ownership, § 1866. Compensation for expenses, § 1867. Depositary for hire, liable as, § 1864. Exoneration of owner by surrender of property to, § 1871. Lists, publication of, by, § 1871. May put thing found on storage, § 1868. Not bound to take charge, § 1864. Notice to owner, damages for failure to give. § 1865. Not to charge except for expenses, § 1S65. Obligations of, if he takes charge, § 1864. Penalty for failure to comply with statute or surrender property, § 1871. Eeward, not entitled to, if owner not notified. § 1865. Eeward of, § 1867. Sale of thing found, §§ 1869, 1870. Surrender of thing found to owner, § 1871. To notify owner, § 1865. To restore property, § 1865. Unknown owner, appraisers, appointment and duties, § 1865. UnknoM-n owner, filing affidavit with justice, § 1865. Unknown owner, lists, preparation, delivery, and filing of, § 1865. FIRE. See Fire Patrol. Burned records of documents. See Burnt Records and Documents. Deposit, involuntary, in case of, § 1815. Destruction of articles of incorporation by, effect of copies. § 297a. Destruction of articles of incorporation by, filing copies, § 297a Destruction of corporate records, restoration of. See Corporations, XL Destruction of negotiable instrument, action to re-establish, indem- nity, § 3415. Destruction of private documents, action to re-establish, § 3415. Marine carrier not liable for loss by, § 2197. Treble damages for negligently firing woods, § 3346a. Treble damages for setting, § 3346a. Warehousemen, when only liable for, § 18o8e. Water company to furnish water free in case of, § 549. Writings destroyed by, re-establishment and re-execution of, § 3415. FIRE INSURANCE. See Insurance. FIRE INSURANCE COMPANIES. See Insurance Corporations. FIRE PATROL. Abandonment of building not justified by acts of, § 453a. Assessment to maintain, how apportioned, § 453c. INDEX. 1099 FIRE PATKOL (Continued.) Assessment to maintain, how coilected, § 453c. Duties and powers of, § 453a. Expenses of, limit upon, § 453e. Fire insurance companies may maintain, § 453a. Injuries to animals or property of, punishment of, § 453b. Laws and ordinances protecting fire department, apply to, § 453b. Maintenance of, statement of premiums, corporations to file, § 453e. Maintenance of, statement of premiums, demand for, § 453c. Maintenance of, statement of premiums, failure to file, penalty and collection, § 453c. Meeting of corporations interested to be held yearly, § 453c. Meeting of corporations, majority to decide all questions, § 453e. Meeting of corporations, right to vote, § 453c. Obstruction of, on way to fire, punishment of, § 453b. Power to enter buildings and take property, § 453a. Eegular fire department not to be interfered with, § 453a. Eight of way while running to fires, § 453b. Underwriters may maintain, § 453a. FISH. Eight to take, §§ 801, 802. FISHERIES. Ships are engaged in foreign or domestic navigation or fisheries, §962. FIXTURES. Attachments to mines, what are fixtures, § 661. In general, § 1013. Mines, attached to, what are, § 661. Mortgage a lien on, § 2926. Ownership of, § 1013. Property affixed to another's land belongs to owner of land, § 1013. Tenant, right of to remove, § 1019. ■ Thing when deemed to be affixed, § 660. What are, § 660. FLUME. Owners in common, action for contribution, form of, parties, fees, , costs, § 843. Owners in common, liability for maintaining and repairing, and for distributing water, § 842. Owners in common of, liability, how enforced, § 843. Water company's duty respecting, § 551. FORCE. See Duress. FORECLOSURE. Of mortgages, § 2967. Of right to redeem pledge, § 3011. Eight of redemption, foreclosure of, § 2931. FOREIGN. Acknowledgments. See Acknowledgments. Assessment insurance companies. See Mutual, Life, Health, Ac- cident, and Annuity Insurance on Assessment Plan. Banking corporation, superintendent of banks as agent for service of process. Appendix, tit. "Banking," § 7. Banking corporation, requirements of. Appendix, tit. "Banking," § 7. Banking corporations, oaths of resident managers or agents. Appen- dix, tit. "Banking," § 11. 1100 INDEX. FOREIGN. (Continued.) Bill, acceptance and payment for honor. §§ 3203, 3233. Bill, damages for dishonor of, §§ 3234-3238, 3303. Bill, definition of, § 3224. Bill, notice of dishonor, protest necessary, § 3225. Bill, payment for honor, declaring for whose honor payment made. § 3233. Bill, payment for honor, what necessary to reimbusement of payer, § 3233. Bill, protest, by whom made, § 3226. Bill, protest, delay in, when excused, § 3230. Bill, protest, how made, § 3227. Bill, protest necessary, § 3225. Bill, protest, notice of, how given, § 3231. Bill, protest, time for making, § 3229. Bill, protest, when excused, § 3230. Bill, protest, where made, § 3228. Bill, waiver of protest and effect of, § 3232. Bill, waiver of protest does not waive presentment and notice, § 3160. Bill, waiver of protest, effect of, where indorser repuires protest, § 3232. Bill, waiver of protest, notice of dishonor in case of, § 3232. Building and loan associations, deposit by, § 645. Corporation, liability of stockholders, § 322. Corporations. See Corporations, XVIII. Country, sale by corporation of property, franchises, or concessions in, § 364. Executor, discharge of mortgage by, § 293&%. Insurance corporations. See Insurance Corporations. Law, mistake of, is mistake of fact, § 1579. Marriage, validity of, § 63. Mutual insurance company, cash assets, required, §§ 419, 420. Navigation defined, § 962. Partnership, under fictitious name, need not file or publish certificate. §2467. Eailroad corporations, right to lease or use road in common, § 473a. Ship, defined, § 963. Will, validity of, § 1285. FOREIGN ACKNOWLEDGMENTS. See Acknowledgments. FOREIGN BANKS. Appendix, tit. "Banking," II. FOREIGN BILLS. See Foreign. FOREIGN BUILDING AND LOAN ASSOCIATIONS. See Building and Loan Associations. FOREIGN CORPORATIONS. See Corporations, XVIII; Foreign. FOREIGNERS. See Alien. FOREIGN EXECUTORS. Discharge of mortgage of record by, § 29391/^. FOREIGN GUARDIAN. Satisfaction of mortgage of record by, § 293914- FOREIGN INSURANCE CORPORATIONS. See Insurance Corporations. FOREIGN WILLS. Validity of in this state, § 1285. See Wills, V. INDEX. 1101 FORFEITURE. Conditions involving, strictly construed, § 1-442. Contract for, of property subject to lien, void, § 28S9. Conveyance in excess of title does not work, § 1108. Grantee's or devisee's, remedy for, § 821. Homestead corporations, for speculation, § 562. Preventive relief, not granted to enforce, § 3369. Letter may forfeit hiring when, §§ 1930, 1931. Eailroad, powers of, forfeiture for non-user, § 468. Relief from, right to, on making full compensation, § 3275. Remedies of grantee or devisee of rent or reversion on, § 821. Servitude, for non-user, § 811. Specific or preventive relief not granted to enforce, § 3369. Street-railroad, by, for failure to commence or complete road in time, § 502. Wages of seamen, grounds for, § 2063. Water rights, forfeiture for failure to comply with statute, §§ 1419, 1420. FORM. Acknowledgment by attorney in fact, of, § 1192. Acknowledgment by corporation, § 1190. Acknowledgment, generally, of, § 1189. Certificate of acknowledgment by corporation, § 1190. Certificate of acknowledgment by married woman, § 1191. Chattel mortgages, § 2956. Covenants in execution of executory contract, § 1734. Dishonor, form of, § 3143. Grant, of, § 1092. Marriage, of solemnizing, § 71. Mortgage, of, § 2948. Notice of assessment, § 335. Notice of delinquency, § 337. Notice of dishonor, § 3143. Notice of tenant at will to quit, § 789. Personal property mortgage, § 2956. Protest, § 3227. Realty, mortgage of, § 2948. Warranty in policy of insurance, § 2604. FRANCHISE. Corporate, sale of, under execution, § 388. Elevated or underground road, power to grant, § 492. Execution, purchaser of, rights and duties of, §§ 389, 390. Execution sale of, place, § 393. Extension of corporate existence does not affect, § 401. Forfeiture of railroad, ground of, § 468. Ordinances granting, acts, validating. Appendix, tit. "Railroads." Purchaser, recovery by, as a bar, § 390. Railroad, power to grant, § 493. Railroad, right to purchase franchises of other roads, §§ 465, 494. Railroad, sale of, and conditions of sale, statute relating to. Ap- pendix, tit. "Railroads." Redemption, from sale, § 392. Sale of franchises in foreign country, § 364. Telegraph or telephone, transfer of, § 540. Time within which street-railway franchises may be sold, act limit- ing. Appendix, tit. "Railroads." Transfer of, by corporation. See Corporations, XTT. 1102 INDEX. TRATERNAL CORPORATIONS. See Religious, Social and Benevolent Corporations. Mutual life, etc., insurance corporations, §§ 437-4.52. See Mutual Benefit and Life Associations; Mutual Life, Health, Accident and Annuity Insurance on Assessment Plan. FRATERNAL SOCIETIES. Exempt from insurance laws, § 451. Not governed by laws relating to mutual assessment corporations, § 453p. Not insurance corporations, § 451. FRAUD. Actual, a question of fact, §§ 1574, 3442. Actual or constructive, is, § 1571. Actual, what constitutes, § 1572. Agent cannot have authority to defraud principal, § 2306. Apprenticeship, ground for annulling, § 276. As affecting right to specific performance, § 3391. As ground for annulment of marriage, § 82. Assignment for creditors, effect of fraud in, § 3457. By-bidding at auction sale, § 1797. Carrier, cannot exonerate from liability for, § 2175. Consent, obtained by fraud or concealment, contract not enforceable, §3391. Consent to contract obtained by, effect of, §§ 1567, 1568. Constructive, defined, § 1573. Constructive or actual, is, § 1571. Contract deemed obtained through, when, §§ 1568, 1571, 1572, 1573. Contract for exemption from one's own, void, § 166S. Contract not expressing intent because of, intent governs, § 1640. Contract obtained through, voidable, §§ 1566, 1567, 1689. Contract prevented from being put in writing by enforced when, § 1623. Deceit, §§ 1709-1711. See Deceit. Desertion induced by, who commits desertion, § 97. Disregarding erroneous jjarts of writing, in case of, § 1640. Eft'ect on oral contract not in writing through fraud, § 1623. Enforcing oral contract against fraudulent party, § 1623. Exemplary damages in case of, § 3294. False certificate, report or notice by officer of corporation, liability for, § 316. False entries in corporate books, liability for, § 316. Fraudulent conveyance. See Fraudulent Conveyance. Instrument, creditor, when can avoid for, § 3441. Instrument, when makes void against purchaser, § 1227. Instrument, when void against creditors, § 3439. Insurance, omission to communicate avoids, §§ 2562, 2569. Insurance, return of premium where polic}' voidable for fraud, § 2619. Insurer, when exonerated for loss through, § 2629. Intent, question of fact, § 3442. Interest as damages in case of, § 3288. Marine insurance, in valuation, effect of, § 2736. Marriage, contracted through, § 58. Marriage, in contracting, ground for annulling, § 82. One fraudulently dispossessing himself may be treated as in pos- session, § 3518. Pledge, misrepresenting value of, § 2999. Reformation of contract for, § 3399. Rescission for, §§ 1689, 1690. INDEX. 1103 FRAUD. (Continued.) Eescission for, what stipulations do not defeat, § 1690. Eestoration of thing wrongfully received, §§ 1712, 1713. Specific performance, as affecting right to, § 3391. Trust arises from, when, § 2224. Trustee guilty of, when, § 2234. Undue influence defined, § 1575. Will procured or revoked by, § 1272. FRAUDS. , Statute of. See Statute of Frauds. FRAUDULENT CONVEYANCE. Assignment for creditors, provisions as to notice do not apply to, § 3440. Assignment for creditors, when void, § 3457. Assignment of stock in trade, notice of, to be recorded, § 3440. Assignment of stock in trade, notice of, what to state, § 3440. Avoidance of, creditors when can avoid, § 3441. Auction, sale of stock in trade at, notice to be recorded, § 3440. Bottomry, delivery not necessary, § 3440. Chattel mortgages when void against creditors, § 2957. Chattel mortgage, delivery, § 3440. Consideration, transfer without, may be valid, § 3442. Consideration, transfer without void as to existing creditors, § 3442. Creditors, when only can avoid, § 3441. Debtor's contract valid, when, § 3431. Delivery of personalty necessary, § 3440. Exempt property, transfer of, provisions as to notice do not apply to, § 3440. Fraud a question of fact, § 3442. General rule as to, § 3439. Instruments designed to defraud purchasers or encumbrancers, void as against, § 1227. Judicial proceedings as, § 3439. Lien, change of possession, § 3440. Notice on transfer of stock in trade, § 3440. Notice, purchasers or encumbrancers with, effect on, § 1228. Possession, change of, wines, casks, etc., in wineries, delivery not necessary where transfer recorded, § 3440. Possession, transfer of .personalty without change of, when conclu- sively presumed fraudulent, § 3440. Preference by special partnership, when void, § 2496. Preferences valid, § 3432. Presumption as to, in absence of deliverey, etc., § 3440. Purchaser with notice, effect on, §§ 1228. Question of fraud determined how, § 3442. Realty, of, what is, §§ 1227-1231. Realty, of, what not, § 1228. Reservation of interest avoids assignment for creditors, § 3457. Reserving power of revocation, power when executed, §§ 1229, 1230. Respondentia, delivery not necessary, § 3440. Sale by executor, guardian, receiver, etc., provisions as to notice do not apply, § 3440. Sale of stock in trade, five days' notice of to be recorded, § 3440. Sale of stock in trade, notice of, what to state, § 3440. Ship or cargo need not be delivered, § 3440. Special partnership, by, what is, § 2496. Transfer of stock in trade, five days' notice to be recorded, § 3440. Unlawful transfers, §§ 1227-1231. 1104: INDEX. FRAUDULENT CONVEYANCE. (Coutinued.) Void, § 3439. Voluntary transfers, void as to existing creditors, § 3442. Voluntary transfers valid, wlien, § 3442. What transfers are, in general, § 3439. Wines need not be delivered, when, § 3440. FREEHOLD. Defined, § 765. Estate for life is, § 765. Estate for life of third person is, § 766. Estate of inheritance is, §§ 762, 765. May commence at future day, § 773. Eemainder of, may be created on term of years, § 773. FREIGHT AND FREIGHTAGE. See Carriers of Goods. Abandonment of ship, right to, on, § 2730. Abandonment of freightage by insured, right of, § 2717. Arrival, duty of carrier after and before delivery, § 2120. Bill of lading. See Bill of Lading. Carrier exonerated from liability, by delivery, § 2131. Carrier must not stow on deck, § 2117. Carrier, obligation of to accept, § 2169. Carrier's lien for freightage, § 2144. Consignee defined, § 2110. Consignee, refusal to accept duty of carrier on, § 2121. Consignee, when liable for freightage, § 2138. Consignor defined, § 2110. Consignor of valuable, to declare its nature and value, § 2200. Consignor, presumed liable for freightage, § 2137. Consignor, when not liable for freightage, § 2137. Damages for carrier's failure or delay in delivery, §§ 3316, 3317. Damages for carrier's refusing to receive, § 3315. Deck, freight when only can be stowed on, § 2116. Definition of freight, § 2110. Definition of freightage, §§ 2110, 2661. Delivered, where to be, §§ 2118, 2119. Delivery beyond usual route, § 2201. Delivery, carrier may demand surrender of bill of lading before, §2132. Delivery, duty of carrier after arrival and before deliver^-, § 2120. Delivery, manner of, § 2118. Delivery to holder of bill of lading exonerates carrier, § 2131. Delivery, to whom made, §§ 2118, 2119. Duty after arrival, §§ 2120, 2121. Freightage, abandonment of, by insured, right of, § 2717. Freightage, additional, on carriage farther or more expeditiously then agreed, § 2148. Freightage, apportionment on acceptance of part, § 2141. Freightage, apportionment of, by contract, § 2140. Freightage, apportionment on acceptance at place short of delivery, § 2142. Freightage, defined, §§ 2110, 2661. Freightage, how valued on general average, § 2153. Freightage, hypothecation of. See Bottomry. Freightage, in marine insurance, defined, § 2661. Freightage, insurable interest in, §§ 2G62, 2663. Freightage, liable for contracts of ship master, §§ 2376, 2380. Freightage, lien for, § 2144. Freightage, not chargeable on natural increase of freight, § 213t). I INDEX. 1105 FREIGHT AND FREIGHTAGE. (Continued.) . Freightage, payable by whom, §§ 2137, 2138. Freightage, payable, when, § 2136. ' Freightage, powers of ship manager as to, §§ 2388, 2389. insurable interest in freightage, § 2662. Insurable interest, when exists, § 2663. Liability of inland carriers for loss, § 2194. Liability of marine carriers for loss, § 2197. Lien for freightage, § 2144. Marine insurance, freightage in, §§ 2661-2663. Master of ship may hypothecate, § 2377. Master's authority over, ceases on abandonment, § 2381. Notice of arrival, when necessary, § 2120. Proof in case of loss of through freight, § 2202. Sale of perishable property for, § 2204. Seaman has lien upon freightage, § 3056. Ship, abandonment of, effect of on freightage, § 2730. Ship-master has lien upon freight, § 3055. Ship's manager cannot give up lieu for, § 2389. Ship's manager may settle for freightage, § 2388. Storage by carrier, proper, when consignee does not accept, § 2121. Through freight, delivery to connecting carrier, § 2201. Through freight, proof in case of loss of, § 2202. Value of in estimating loss under open policy, § 2741. Wages of seamen depend on freight being earned, §§ 2054, 2058. When carried farther than agreed, § 2143. Who liable for, §§ 2137, 2138. Whose directions govern delivery of, § 2115. FRIENDLY SOCIETIES. See Religious, Social, and Benevolent Corpora- tions. Limitation on amount of land held by, § 596. Surplus real estate to be sold within what time, § 596. FUNDS. Investment of. See Investments. Mortgage participation certificates and securities guaranteed by poli- cies of mortgage insurance as legal investments for funds of, § 453ff. FURTHER ASSURANCE. Covenant runs with land, § 1463. Form of, § 1734. Included in agreement to give usual covenants, § 1733. FUTURE. See Future Estates; Future Injuries; Future Interests. Damages, right to recover, § 3283. Guaranty relating to future liability, §§ 2814, 2815. Present includes, § 14. Representation as to, effect of, § 2574. W^arranty as to future event, §§ 2608, 2609. FUTURE ESTATE. See Future Interests. Expectancy of heir apparent is not an interest, § 700. May be limited on termination by any means of precedent estate, § 767. May be limited without intervention of a precedent estate, § 767. Mere possibility is not an interest, § 700. Remainder, future estate when called, §■ 769. Civ. Code — 70 1106 INDEX. FUTURE ESTATE. (Continued.) Eemainders. See Kemainders. Eeversions. • See Eeversions. Eight of owner to use easements, § 808. FUTURE IITJURIES. Damages for, § 3283. FUTURE INTERESTS. See Future Estate. Accumulations. See Accumulations. Alienation, suspending power of. See Alienation. Alternative, may be in, § 696. Are vested or contingent, § 693. Contingent, when, § 695. Defeat, birth of posthumous child defeats, when, § 739. Defeated, interest not void because it may be, § 74:0. Defeated, may be, in any manner provided by act of creator of. § 740. Defeated, not by any act of owner of intermediate estate, § 7-il. Defeated, not by destruction, forfeiture, merger, etc., of intermediate estate, § 741. Defeated, not by determination of intermediate estate before vesting of, § 742. Defined, § 690. Heirs and issue, meaning of, § 1071. Income undisposed of, to whom belongs, § 733. Issue, meaning of, § 1071. Lien may be created on, § 2883. Lien on, when attaches, § 2883. Not void because it may be defeated, § 740. Not void because of improbability of contingency, § 697. Pass by will, succession, and transfer same as present interests, § 699. Power of appointment, effect of on, where not executed, § 781. Eights of posthumous child, § 698. Several may be created to take effect in alternative, §.696. Time of creation of, § 749. Vested, when, § 694. What only recognized by code, § 703. Who entitled to income where no disposition of it, § 733. G GAME. Eight to take, §§ 801, 802. GAMING. Insurance, void, § 2558. GARAGES. Liens of proprietors of, § 3051. GAS CORPORATION. Provisions of code relating to repealed, §§ 629, 630, 630a, 631, 632. GENDER. Of words in code, § 14. GENERAL AVERAGE. Adjusted how, § 2152. Adjustment, validity, § 2152. Apportionment of loss, § 2151. I INDEX. 1107 GENERAL AVERAGE. (Continued.) Contribution in case of, § 2642. Defined, § 2148. Goods stowed on deck, on jettison of, § 2154. In general, §§ 2148-2155. Insurance free from particular average, effect of on, § 2711. Marine insurer liable for, §§ 2711, 2744. Rules of, apply to what sacrifice and losses, § 2155. Ship manager may adjust, § 2388. Valuation, time of ascertaining, § 2153. Values, ascertained how, § 2153. GIFT. Ademption of legacy, § 1357. Causa mortis, defined, § 1149. Causa mortis, effect of will on, § 1152. See Wills, IX. Causa mortis, presumed when, § 1150. ' Causa mortis, revocation of, §§ 1149, 1151. Causa mortis, treated as legacy, when, § 1153. Community property, of, § 172. Defined, § 1146. Delivery necessary, § 1147. Made how, § 1147. Presumed made in view of death, when, § 1152. Revocable, not, § 1148. Revocation of, rights of bona fide purchaser, § 1151. Revocation of gift causa mortis, right of, § 1151. Revocation of gift causa mortis, what amounts to, § 1151. Satisfying before death, when given in will in view of death, §§ 1367, 1370. Subscribing witness, to, §§ 1282, 1283. Verbal, how made, § 1147. GOATS. See* Animals. GOOD FAITH. Agent indemnified for advance made in, § 2344. Agent, whether bound by act in, § 2343. Offer of performance, to be in, § 1493. Partner, bound to highest, § 2411. Partner, when not bound by act not in, § 2431. Principal bound to persons acting in, § 2334. Trustee, bound to highest, § 2228. GOOD-WILL. Assignable, is, § 993. Assignor may give right to use name, § 993. Definition, § 992. Does not include right to use name, § 992. Name, assignor may transfer right to use, § 993. Name of business may be transferred with, § 993. Ownership, subject of, § 655. Partner may not dispose of, § 2430. Property, is, §§ 655, 993. Sale of, agreement not to go into business, § 1674. Subject of ownership, § 655. Transfer of may include right to use name, § 993. Warranty on sale of, § 1776. 1108 INDEX. GRACE. Days of, not allowed, § 3181. GRADING TRACKS. Granting right for, § 509. GRANT. See Conveyance; Deed; Transfer. After-acquired title passes by deed, § 1106. Cancellation does not revest title, § 1058. Conclusiveness as to parties and privies, § 1107. Conditions in. See Conditions. Conveyance, defined, § 1215. Covenants. See Covenants. Defined, § 1053. Delivery, constructive, of, § 1059. Delivery necessary to taking effect of, § 1054. Delivery presumed to be at date, § 1055. Delivery to grantee or agent is absolute, § 1056. Delivery to stranger, effect of, § 1059. Fee simple presumed to pass, § 1105. Form of, § 1092. Highway, grant of land bounded on, what passes, § 1112. Includes whatever is essential to use, §3522. Interpretation of. See Conveyances. Married woman's, acknowledge how, § 1093. Married woman's, effect of, § 1187. Married woman's, how executed, § 1093. Modes of transfer, § 1091. Name, change of, conveyance in case of, § 1096. Power to revoke or modify, when deemed executed, §§ 1229, 1230. Property, how transferred, § 1091. Eecording. See Eecording. Redelivery does not revest title, § 1058. Re-entry, when and how made, § 791. Rent, right of grantee or devisee of, § 821. Reversion, right of grantee of, § 821. Term "grant" includes what instruments, § 1053. Third person, may inure to benefit of, § 1085. Time of creation of interest created by, § 749. GREATER. Contains less, § 3536. GROWING CROP. See Crops. Lien of mortgage continues after severance, § 2972. GROWING TREES. See Trees. GUARANTY. See Indemnity; Suretyship. Acceptance, notice of, necessity of, § 2795. CoUectability, of, liability, recovery and discharge on, §§ 2801, 2802. Colleetability, of, not discharged bj' failure to proceed on original debt or collateral, when, § 2801. Collectabilitv, of, removal of principal from state leaving no prop- erty, effect of, § 2802. CoUectability, of, what imports, § 2800. Conditional, guaranty deemed unconditional, § 2806. Conditional obligation, notice of default, necessity of, § 2S0S. Conditional obligation, of, liability on, § 2S0S. Consideration for, § 2792. INDEX. 1109 GUARANTY. (Continued.) Consideration, writing need not ox[ness, § 27'.>;>. Construed, how, § 2806. Continuing, defined, § 2814. Continuing, revocation of, § 2815. Defined, § 2787. Delay of creditor does not discharge, § 2823. Demand not necessary to liability when, § 2807. Disability of principal, effect of, § 2810. Enumeration of original obligations, § 2794. Factor del credere, necessity of writing, § 2794. Factor selling under guaranty commission, liability of, §§ 2029, 2030. Guarantor's liability cannot exceed principal's, § 2809. Illegal contract, guarantor not liable on, § 2810. Incomplete contract, of, what implied in, § 2799. Indemnified guarantor, effect of alteration of contract, § 2824. Indorser has rights of guarantor, § 3121. Knowledge of principal not necessary, § 2788. Letter of credit, §§ 28.58-2866. Letter of credit may be continuing, § 2864. Liability not affected by disability of principal, § 2810. Liability of guarantor cannot exceed principal's, § 2809. Liability of guarantor to be reduced if it exceeds principal's, § 2809. Liability on, accrues when, §§ 280-7, 2808. Liable, guarantor is although contract void as to principal, § 2810. Liable, guarantor is not where contract illegal, § 2810. Notice of acceptance, necessity of, § 2795. Notice of default, necessity of, §§ 2807, 2808. Notice of default not necessary upon guaranty of payment or per- formance, § 2807. Original obligations, enumeration of, § 2794. Original, obligation when deemed, § 2794. Part performance of obligation, effect of, § 2822. Payment, of, demand and notice of default not necessary, § 2807. Performance, of, demand and notice of default not necessary, § 2807. Principal's contract void, effect of, § 2810. Principal's disability does not affect, § 2810. Eeduced by partial performance, § 2822. Kelease, alteration of contract is not, where guarantor indemnified, § 2824. Eelease, alteration of contract, rescission of alteration does not re- store liability, § 2821. Eelease, alteration of obligation, void or voidable promises are not, § 2820. Eelease by altering obligation of principal, § 2819. Eelease, delay of creditor does not work a, § 2823. Eelease, discharge of principal by act of law does not work a, § 2825. Release, effect of part performance as a, § 2822. Eelease of one or more joint debtors, effect of, § 1543. Eelease, remedies against principal, impairing, § 2819. Eelease, remedies are not impaired by void or voidable promises, § 2820. Eelease,' void premises do not work a, § 2820. Eevocation of continuing, § 2815. Statute of frauds, effect of, on, § 1624. Surety has rights of guarantor, § 2844. Time when liability on, accrues, § 2807. Unconditional, guaranty deemed to be, § 2806, 1110 INDEX. GUARANTY. (Continued.) Void as to principal, guarantor liable although contract is, § 2810. Written, must be, §§ 1624, 2793. Written, need nbt be when, § 2794. GUARDIAN AND WARD. Abandonment of child, forfeiture of custody or guardianship, § 246. Abduction of ward, forbidden, § 49. Ad litem, guardian, appointed to enforce rights of ward, § 42. Appointment, mother of illegitimate may malie, § 241. Appointment, preference between parents, § 246. Appointment, preference between persons equally entitled, § 246. Appointment, right of father to make, § 241. Appointment, right of parent to make, § 241. Appointment, rules governing court in making, § 246. Appointment, superior court may appoint guardian, in what cases, §243. Apprenticeship, guardian maj- bind ward to, when, § 265. Apprenticing ward, § 265. Assault on ward, right to protect against, § 50. Confidential, relationship between is, § 250. Corporation, act authorizing to act as executor. Appendix, tit. "Cor- porations." Corporation authorized to act as guardian, capital required to be paid in and affidavit as to', § 290. Court, guardian is under direction of, § 251. Custody of minors, rules for awarding, § 246. Custody of ward, guardian of person has, § 248. Damages for holding over by guardian, § 3335. Death of joint guardian. § 252. Definition of guardian, § 236. Definition of ward, § 237. Deposit in bank or trust company and discharge from liability. Ap- pendix, tit. "Banking," §§ 51, 91. Deposit of assets in trust company- and reduction of bond. Appen- dix, tit. "Banking," § 93. Discharge after ward's majoritj^ time of, § 257. Discharge, guardian, when entitled to, § 257. Education of ward, guardian of person must look to, § 248. Enticement of ward from guardian, forbidding, § 49. Father, appointment of guardian by, § 241. Foreign guardians, satisfaction of mortgage of record by, § 2939^4- Forfeiture of guardianship by guardian, what amounts to, § 246. General guardians, § 238. General guardian, defined, § 239. General guardian, rules for appointing, § 246. Guardian ad litem, appointed to enforce rights of ward, § 42. Guardian appointed by parent, superseded how, § 254. Guardian defined, § 236. Guardian forfeits right to guardianship by what acts, § 746. Guardian under direction of court, § 251. Guardian, who may appoint by will or deed, § 241. Guardians are special and general, § 238. - Guardianship, dissolved by what, § 254. Health of ward, guardian of person must look to, § 248. Holding over by guardian, damages for, § 3335. Illegitimate child, guardian may sue father for support, § 196a. Illegitimate child, mother may appoint guardian, § 241, INDEX. 1111 GUARDIAN AND WARD. (Continued.) Joint guardian, death of, power of survivor, § 252. Jurisdiction over guardian, court appointing has exclusive, § 245. Kinds o'f guardians, § 238. Majority, attainment to terminates authority of guardian, §§ 254, 255. Management and disposition by guardian under control of court, § 251. Marriage of vpard, consent of guardian, when necessary, § 69. Marriage of ward terminates authority, §§ 254, 255. Mortgage participation certificates and securities guaranteed by poli- cies of mortgage insurance as legal investments for funds, § 453ff. Mother may appoint of illegitimate child, § 241. Non-resident minor, guardian of property may be appointed, § 244. No one can act as guardian of property without appointment, § 242. Orphan asylum, guardians for infants maintained in. Appendix, tit. "Infancy." Orphan asylum, managers have preferred right to guardianship, when, § 246. Orphan asylum, permitting child to remain in, effect on custody or guardianship, § 246. Parent abandoning child forfeits right to guardianship, § 246. Parental authority ceases on appointment of guardian, § 204. Parent failing to maintain child forfeits guardianship, § 246. Parent permitting child to remain in orphan asylum without notice forfeits guardianship, § 246. Power of guardian is superseded by what acts, § 254. . Power of guardian, what suspends, § 255. Power over person and property, guardian has, § 247. Property of ward, duties of guardian of property, generally, § 249. Proxies, guardian may give, § 321b. Relation, confidential, § 250. Release by ward to guardian, § 256. Removal of guardian, grounds for, § 253. Residence, guardian may not fix out of state, § 248. Residence of ward, guardian may fix, § 248. Shares of stock of minor or insane person, guardian to represent, §313. Special guardian, generally, § 238. Special guardian defined, § 240. Stockholder, guardian as, § 322. Stockholder, liability of funds in guardian's hands, § 322. Superseded, guardian is, how, § 254. Support of ward, guardian of person must look to, § 248. Suspended, powers of guardian, when are, § 255. Terminated, guardianship is, by what acts, § 254. Termination of powers of guardian, what effects, § 255. Testamentary guardian, power to appoint, § 241. Time of discharge, after ward's majority, § 257. Trusts, relation governed by provisions on, § 250. Ward defined, § 237. Ward may own stock in homestead, § 561. Ward, release by, § 256. Wrongful injury to ward, right to protect against, § 50. Wages, assignment of by infant, written consent of parent or guard- ian necessary, § 955. GUEST. See Innkeepers. Wrongful injury, right to protect against, § 50, 1112 INDEX, H HABITUAL INTEMPERANCE. See Divorce. Divorce for, §§92, 107. HALr-BLOOD. Inheritance by kindred of, § 1394. HALLS. Corporations to erect, directors from whom elected, § 305. Corporations to erect, number of directors, § 305. HANDWRITING. How prov^ed, § 1199. When may be proved, § 1198. ^ HEAD OF FAMILY. See Homstead. Husband as, § 156. HEALTH INSURANCE. See Mutual Life, Health, Accident and Annu- ity Insurance on Assessment Plan. HEALTH INSURANCE CORPORATIONS. See Insurance Corporations. HEAT. See Heating Corporations. Easement of receiving from or discharging over land, § 801. HEATING CORPORATIONS. Companies to furnish for buildings within one hundred feet of main, § 629. Duty to supply heat on application and penalty for refusal, § 629. HEIR. See Succession. Conveyance by heir claiming by succession, good unless will proved in four years or notice of devise filed, § 1364. Expectancy of heir apparent is not an interest, § 700. Inheritance by. See Succession. Interpretation of "heirs," § 1071. Legitimacy, may dispute, § 195. Minor's, disaffirmance of contract, § 35. Of tenant for life, taking as purchaser, § 779. Sale of property devised or bequeathed, § 1363. Warranty of ancestor, liability on, § 1115. Word "heirs" not necessary to pass fee. § 1329. HIGHWAY. See Wagon-road Corporation. Bonds of permanent road division as legal investment for mortgage insurance corporations, § 453ee. Bonds of permanent road divisions as legal investments for funds of insurance corporations, § 421. Conveyance of land bounded Ijy, passes what, § 1112. Franchises for railroads on, acts relating to. Appendix, tit. "Rail- roads." Owner presumed to own to center, § 831. Railroad crossing, how to acquire other land, § 472. Railroad, how may cross, § 472. Tolls not to be charged on public, § 515. Water company must not obstruct, § 551. 'iNDfiX. 1113 HIRING, See Landlord and Tenant; Loan; Master and Servant. Apportionment of hire on termination before time, § 1935. Care required of liirer, § 1928. Charter-party defined, § 1959. Charter-party, master may enter into, § 2376. Consent, termination by, § 1933. Death terminates, when and when not, § 1933. Defined, § 1925. Depositary for hire. See Storage. Destruction of thing hired terminates, § 1933. Deterioration or injuries, duty to repair, § 1929. Expenses, extraordinary, hirer may incur, when, § 1957. Expenses, hirer when to bear, § 1956. Expenses, ordinary, hirer to bear, § 1956. Expenses, power of hirer to meet, § 1957. Expenses, who must bear, §§ 1956, 1957. Expiration of term, terminates, § 1933. Forfeiture, letter may declare when, §§ 1930, 1931. Hirer may terminate hiring before end of term, when, § 1932. Hirer to use property only for purpose hired, § 1930. Hirer using for different purpose, rights of letter, § 1930. Incapacity terminates when and when not, § 1934. Injuries, hirer to repair, § 1929. Letter failing to fulfill obligations, remedy of hirer, § 1957. Letter's obligations, § 1955. Letter to put thing in fit condition, §§ 1932, 1955. Lien for services. See Service. Lodgings for indefinite time, § 1944. Particular use, for, § 1930. Perishing of material part of thing hired, termination of hiring, § 1932. Products of thing belong to hirer, § 1926. Quiet enjoyment, lessor to secure, § 1955. Quiet possession, failure to give, termination, § 1932. Quiet possession, letter agrees to give, § 1927. Real property, of. See Landlord and Tenant. Repairs, duty of hi^rer to make, § 1929. Repairs, failure to make, right to terminate hiring, § 1931. Repairs, hirer may make and recover from letter, when, § 1957. Repairs, letter's obligation as to, § 1955. Return of thing, place of, § 1958. Return of thing, time of, § 1958. Ships, of, § 1959. Terminate, hirer may, before end of term, when, § 1932. Terminate, when letter may before end of term, § 1931. Terminated by consent, § 1933. Terminated by death or incapacity, when, § 1934. Terminated by destruction, § 1933. Terminated by expiration of term, § 1933. Terminated by hirer acquiring better title, § 1933. Terminates, when, §§ 1933, 1934. Termination before time, apportionment, § 1935. Termination, failure to put in good condition, § 1932. Termination, failure to repair, §§ 1931, 1932. Termination, perishing of material part of thing, § 1932. Termination, using in manner contrary to agreement, § 1931. Title, superior, hirer acquiring terminates, § 1933. 1114 INDEX. HOLIDAY. Acts not to be done on. § 11. Business days, what are, § 9. Enumeration of, § 7. Falling on Sunday next day celebrated, § 7. Last day falling on, excluded, § 10. Maturity of negotiable instrument where last day falls on, § 3132. Performance on following day, § 11. Saturday afternoon a holiday, § 7. Saturday afternoon a holiday in public offices, § 7. Saturday afternoon, what acts may be done on, § 7. School holidays. See Schools. Sunday, holiday falling on, Monday is celebrated, § 7. What days are, § 7. HOLOGRAPHIC WILLS. See Wills, XI. HOMESTEAD. See Homestead Corporation. Abandonment, declaration of, § 1243. Abandonment, declaration of, effectual only from time filed, § 1244. Abandonment, manner of, § 1243. Acknowledging conveyance or encumbrance, § 1242. Acknowledging selection, §§ 1262, 1266. Appraisement of, application for, made how, § 1246. Appraisement of, costs of proceedings to subject to creditor's de- mand, § 1259. Appraisement of, division ordered when, § 1253. iVppraisement of, notice of time and place of hearing, § 1248. Appraisement of, petition, service of, § 1248. Appraisement of, petition to be filed with clerk of the superior court, §1247. Appraisement of, petition, verification of and what to contain, § 1246. Appraisement of, report of, what to show, § 1252. Appraisement of, sale of, bids not received unless exceeding home- stead exemption, § 1255. Appraisement of, sale of, disposition of proceeds, § 1256. Appraisement of, sale of, exemption of proceeds, § 1257. Appraisement of, sale of, when directed, § 1254. Appraisement of. when may be had, § 1245. Appraisers, appointment of, § 1249. Appraisers, compensation of, § 1258. Appraisers, duties of, § 1251. Appraisers, oath of, § 1250. Ap])raisers, report of, time to file, § 1252. Appraisers, report of, proceedings on, §§ 1253-1259. Appraisers, setting off property where it can be divided, § 1253. Community, descent of homestead selected from on death of spouse, §1265.' Community, selecting from, § 1238. Complete, when, §§ 1265, 1269. Consists of what, § 1237. Conveyance of, manner of, § 1242. Conveyance in case of insanity of spouse, proceedings on, §§ 1269a- 1269c. See Insane Persons. Corporation. See Homestead Corporation. Death of spouse, not liable for debts. § 1265. Death of spouse, setting apart for use of family, § 1265. Death of spouse, to whom descends, § 1265. Debts, for what liable, §§ 1241, 1265. INDEX. 1115 HOMESTEAD. (Continued.) Declaration by other than head of family, recording of, §§ 1268, 1269. Declaration by other than head of family, what to contain, § 1267. Declaration must contain what, §§ 1263, 1267. Declaration of abandonment, §§ 1243, 1241. Declaration of, by other than head of family to be acknowledged, § 1266. Declaration of, recording, §§ 1262, 1264, 1268, 1269. Declaration of to be acknowledged and filed, § 1262. Declaration, where recorded, §§ 1264, 1268. Divorce, how disposed of, on, §§ 146, 147, 148. Encumbrance of, acknowledgment of, § 1242. Execution, not subject to except, etc., § 1240. Execution, when subject to, § 1241. Execution against, appraisement of, application for, how made, § 1246. Execution, against, appraisement of, creditor may apply for, § 1245. Execution against, appraisement of, notice of time and place of hear- ing, § 1248. Execution against, appraisement of, petition for, service of and time for, § 1248. Execution against, appraisement of, time to apply for, § 1245. Exemption of from debts, §§ 1240, 1241. Exemption of proceeds on sale of, §§ 1257, 1265. Exemption of, for what debts liable, §§ 1241, 1265. From what property may be selected, § 1238. Head of family, who is, § 1261. Insane persons, of. See Insane Persons. Liability of, in general, § 1265. Liens, for what liable, § 1241. Married person, from what property may be selected, §§ 1238, 1239. Mortgage of, manner of, § 1242. Mortgage in case of insanity of spouse, proceedings on, §§ 1269a- 1269c. See Insane Persons. Mortgages, for what liable, § 1241. Other persons than heads of families, of, selection of, § 1266. Premises constitute homestead from time declaration filed, § 1265. Property from which may be selected, §§ 1238, 1239. Property included in, § 1237. Recording declaration, §§ 1262, 1264, 1268, 1269. Recording selection, §§ 1262, 1268, 1269. Sale of, exemption of proceeds, §§ 1257, 1265. Selected from what property, §§ 1238, 1239. Selection by other persons, acknowledgment of, § 1266. Selection by other persons, declaration to be recorded in county, § 1268. Selection by other persons, declaration to contain what, § 1267. Selection by other persons, land becomes homestead, when, § 1269. Selection by other persons, manner of, § 1266. Selection from wife's property, consent necessary, §§ 1238, 1239. Selection, mode of, § 1262. Selection, wife, by, where husband has not selected, § 1262. Separate property, descent of property selected from on death o> spouse, § 1265. Separate property of husband, selection from, § 1238. Separate property of wife, selection from, §§ 1238, 1239. Succession to on death of spouse, § 1265. Tenure by which held, § 1265. Title perfected, when, §§ 126.5, 1269. 1116 inde:^:. HOMESTEAD. (Continued.) Unmarried person, from what property may be selected, § 1238. Value, limitation of, § 1260. Value of where claimant is not the head of a family, § 1260. Value, where selected by head of family, § 1260. What consists in, § 1237. What may be selected from, §§ 1238, 1239. When complete, §§ 1265, 1269. W^ife, selection by where husband does not select, § 1262. Wife, selection of from separate property of, §§ 1238, 1239. HOMESTEAD CORPORATION. See Homestead. Annual report and its publication, §§ 565, 566. Articles, copy of to be furnished stockholder, § 558. Borrowing and loaning money, § 560. By-laws, copy of to be furnished stockholder, § 558. By-laws to specify what, § 558. Defined, § 557. Delinquent shares, advertisement and sale of, § 559. Fines, penalties and forfeitures, amount, to be specified in by-laws, §558. Forfeited shares, advertisement and sale of, § 559. Forfeiture, adjudication of, § 562. Forfeiture for owning lands in excess of $200,000, § 562. Forfeiture for speculating in lands, § 562. Infants, stock purchased with earnings or gifts of, who may hold, §561. Installments, by-laws to specify what, respecting, § 558. Installments, time when payable to be specified in by-laws, § 558. Interest, rate of, on borrowed money, § 560. Loaning and borrowing money, § 560. Married women may own stock in, § 561. Premiums, default in payment, resale of, § 564. Premiums, sale of lots for, §§ 563, 564. Publication of annual report, §§ 565, 566. Sale of delinquent and forfeited shares, § 559. Statute authorizing formation of corporations to provide homesteads for members. Appendix, tit. "Homesteads." Terminated, when and how, § 563. Termination of, dividends on, § 563. Termination of, division and disposition of property, § 563. Time of corporate existence, § 557. Wards may own stock, § 561. What are, § 557. HOPS. Tare, allowance of on baled hops, § 995. HORSELESS VEHICLES. Franchise for roads for, consent of majority of owners, § 524. Franchises for roads for, power to grant, § 524. HORTICULTURAL ASSOCIATIONS. See Non-profit Co-operative Agri- cultural, Viticultural, and Horticultural Associations. HORTICULTURE. See Non-profit Co-operative, Agricultural, Viticul- tural and Horticultural Associations. Lease of land for, cannot be for over fifteen years, § 717. INDEX. 1117 HOSPITAL. See Veterinary Hospital Proprietors. Corporation for hospital purposes cannot take by will unless expressly authorized, § 1275. Corporation formed for hospital purposes, power to take by will, § 1275. HOTEL-KEEPERS. See Innkeepers. HOTELS. See Innkeepers. All citizens to have equal rights, § 51. Denial of equal rights in, punishment for, § 52. Inciting denial of equal rights, punishment, § 52. HUMANE SOCIETIES. See Coriiorations for Prevention of Cruelty to Children and Animals. HUSBAND AND WIFE. Abandonment by wife, husband not liable for support, § 175. Abduction of spouse, forbidden, § 49. Accumulations of wife and children living separate are separate prop- erty, § 169. Adoption of children. See Adoption. Assault, right to protect against, § 50. Assignment of wages or salary, written consent of wife or husband necessary, § 955. Children, earnings of when living separate with mother are separate property, § 169. Children. See Parent and Child. Community or separate property, order of resort to on divorce, § 141. Community property, consent of wife to convey or give, § 172. Community property, conveyance of without consideration, § 171. Community property, conveyance or en&umbrance of furniture, cloth- ing, etc., consent of wife, § 172. Community property, defined, § 687. Community property, distribution of on death of husband, § 1402. Community property, distribution of on death of wife, § 1401. Community property, gift by husl^and, § 172. Community property, includes what, § 164. Community property, limitation of action to show property was, §.164 Community property, may hold property as, § 161. Community property on husband's death, subject to debts and allow- ances, § 1402. Community property, power of husband over, § 172. Community property, presumption on conveyance to husband and wife, § 164. Community property, presumption on conveyance to married woman, § 164. Community property, presumption on conveyance to wife and an- other, § 164. Community property, succession to on death of husband, § 1402. Community property, succession to on death of wife, § 1401. Community property, testamentary disposition of, § 172. Community property, when not liable for wife's contracts, § 167. Community property, wife's testamentary power over, § 1401. Consent of wife, agreement to procure, not enforceable, § 3390. Contracts between and with others, capacity to make, § 158. Contracts between, fiduciary relation towards each other, § 158. Contract between, not to impair their legal relations, except as to property, § 159. Contract for separation, §§ 159, 160. , 1118 ' INDEX. HUSBAND AND WIFE. (Continued.) Co-tenancy between, § 161. Curtesy not allowed, § 173. Custody of children, when wife may obtain, § 21-i. Custody of children. See Custody; Infant; Parent and Child. Debts of ^'ife before marriage, separate property of husband not liable, § 170. * Dividends on stock of married woman, to whom payable, §§ 325,575. Domicile, husband may fix, §§ 103, 156. Domicile of wife on suit for divorce, § 129. Domicile, on separation of, § 129. Domicile, selecting unfit, amounts to desertion, § 104. Dower not allowed, § 173. Dwelling, neither can be excluded from other's, § 157. Earnings of wife and children living separate are separate property, § 169. Earnings of wife not liable for debts of husband, § 168. Enticement of wife forbidden, § 49. Head of family, husband as, § 156. Homestead, wife mgy own stock in, § 561. Husband's rights and liabilities respecting stepchildren, § 209. Husband's rights as head of family, § 156. Husband's separate property includes what, § 163. Husband's separate property not liable for wife's debts before mar- riage, § 170. Inheritance of. See Succession. Interests in property are separate, § 157. Inventory of wife's estate, filing is notice, § 166. Inventory of wife's estate may be executed and recorded, § 165. Inventory of wife's estate prima facie evidence of title, § 166. Joint tenancy between, § 161. Legitimacy of issue. See Bastards; Legitimacy. Maintenance without divorce, § 137. See Divorce. Marriage settlement, minor, right of to make, § 181. Marriage settlement, effect of recording or non-recording, § 180. Marriage settlement, how executed, § 178. Marriage settlement, how proved, § 178. Marriage settlement to be acknowledged and recorded, §§ 178, 179. Married woman. See Married \\'oman. Mode of living, husband may choose, §§ 103, 156. Mode of living, if unfit, is desertion, § 104. Mutual obligations of, § 155. Necessaries furnished wife, liability of husband, §§ 174, 175. Necessaries, liability of wife's separate property for, § 171. Obligations, mutual, § 155. Place of living, husband may choose, § 103. Place of living, providing unfit, is desertion, § 104. Presumption on conveyance to, § 164. Presumption when property conveyed to wife, § 164. Presumption when property conveyed to wife and third person, § 164. Property interests, separate, § 157! Property, neither has interests in, of other. § 157. Property of, modes by which may be held, § 161. Property rights of, code sections governing, § 177. Seduction of wife forbidden, § 49. Separate property, earnings and accumulations of wife and children living separate, § 169. Separate property of husband not liable for ante-nuptial debts of wife, § 170. INDEX. 1119 HUSBAND AND WIFE. (Continued.) Separate property of husband, what is, § 163. Separate property of wife, liability of for debts, § 171. Separate property of wife, what is, § 162. Separate property, presumption where property conveyed to wife, §164. Separate property presumption where property conveyed to wife, and another, § 164. Separation, consideration of contract for, § 160. Separation, contract for, may make, § 159. Separation, custody of children, § 214. Separation, husband not liable for support of wife, § 175. Separation, support of children during, § 159. Settlements, marriage, effect of recording, § 180. Settlements, marriage, how executed, § 178. Settlement, marriage, minor may make, § 181. Settlements, marriage, to be acknowledged and recorded, § 179. Signature of husband not necessary on transfer of stock, § 325. Signature of husband not necessary to proxy, § 325. Stepchildren, husband's duties and liabilities as to, § 209. Stock, transfer of by married women, § 325. Support, mutual obligation of, §§ 155, 176. Support of children during separation of, § 159. Support of husband, when wife liable for, § 176. Support of wife, husband liable for, § 174. Support of wife, husband not liable for, when abandoned by wife, §175. Support of wife living separate by agreement, husband not liable for, § 175. Tenancy in common between, § 161. Tenancy in common, presumption on conveyance to, § 164. Tenancy in common, presumption on conveyance to wife and an- other, § 164. Torts of wife, liability of husband for, .§ 171a. Wife. See Married Woman. Wife's earnings not liable for husband's debts, § 168. Wife's earnings, separate property when living apart, § 169. Wife's estate, inventory of, §§ 165, 166. Wife's property liable for her debts, § 171. Wife's property not liable for husband's debts, § 171. Wife's separate property includes what, § 162. Wrongful injury, right to protect against, § 50. HYDRAULIC MINING. Defined, § 1425. Right to carry on, § 1425. Where and when can be carried on, § 1424. I IDENTIFICATION. Of contracting parties, § 1558. Parties to contract must be capable of, § 1558. IDIOT. See Insane Persons. IDLE ACT. Law does not require, § 3532. ILLEGITIMATE. See Bastards; Legitimacy 1120 INDEX. IMPLIED. Contracts. See Contracts, I. Covenants. See Covenants. Trusts. See Trusts. Warranties. See Sales. What incidents and stipulations implied in contract, §§ 1655, 1656. IMPLIED CONTRACTS. See Contracts, I. IMPLIED COVENANTS. See Covenants. IMPLIED TRUSTS. See Trusts. IMPLIED WARRANTIES. See Sales. IMPOSSIBILITY. Alternative obligation, impossibility of performance of one altera tive, § 1451. Ascertaining consideration, of, effect of, §§ 1612, 1613. Ascertaining object of contract, of, effect of, § 1598. Condition void Ijecause of, § 1441. Defined, § 1597. Everything deemed possible except that which is. impossible in nature of things, § 1597. Law does not require, § 3531. Object of contract must be possible, § 1596. Of condition precedent in will, effect of, § 1347. Performance, of, when avoids contract, § 1598. Termination of trust where object impossible, § 2279. What deemed to be possible, § 1597. IMPOTENCY. As ground for annulment of marriage, § 82. IMPROBABILITY. Of contingency, effect on future interest, § 697. INCAPACITY. See Insane Persons. Physical, ground for annulling marriage, § 82. Terminates agency, § 2355. Terminates hiring, § 1934. To consent, ground for nullity of marriage, § 82. To contract, effect on contract, §§ 39, 40. INCEST. Judicial declaration of incestuous marriage, right to, § 80. What marriages are incestuous, § 59. INCIDENT. Passes with principal, §§ 1084, 1656, 3540. Transfer of, does not pass principal thing, § 1084. INCOME. Accumulations of, §§ 722-733. Accumulation of during suspension of alienation, who entitled to, § 733. Accumulations. See Accumulations. Allowance out of, § 726. Bequest of, when accrues, §§ 1366, 1370. Defined, § 748. Disposition of, governed how, § 722. Includes what, § 748. Undisposed of, who entitled to, § 733. INDEX. 1121 INCREASE. See Accession. Freightage not charged for natural, of freight, § 2139. Pledge, of property covered by, § 2989. Property, of, belongs to owner, § 732. Property, of hired belongs to hirer, § 1926. Property, of lent belongs to lender, § 1885. INCUMBEANCE. See Encumbrance. INCUMBRANCER. See Encumbrancer. INDEMNITY. See Guaranty; Suretyship. Actions, indemnitor bound to defend, § 2778. Actions, party indemnified may conduct, § 2778. Agents, acts of, indemnity covers, § 2775. Agreement of, covers acts of agents, § 2775. Bond of indemnity on re-establishing destroyed negotiable instru- ment, § 3415. Bond of, on transfer of stock by non-resident, § 326. Burnt negotiable instrument, action for re-execution, indemnity, § 3415. Defined, § 2772. Future wrongful act, against, void, § 2773. Includes costs of defense, § 2778. Interpretation of, rules for, § 2778. Judgment, conclusiveness of, against indemnitor, § 2778. Judgment, stipulation that it shall be conclusive against indemnitor, effect of, § 2778. Liability of indemnitor, § 2778. Liability jointly or separately on, with person indemnified to persons injured, § 2777. On payment of lost negotiable instrument, § 3137. On re-establishment of destroyed negotiable instrument, § 3415. Past wrongful act, against, effect of, § 2774. Reimbursement, indemnitor, when entitled to, § 2779. Reissuance of burnt bonds, indemnity on, § 329. Several, to, effect of, § 2776. Sureties on, in legal proceedings called bail, § 2780. Surety, when person indemnifying is entitled to rights of, § 2779. Unlawful act, against, §§ 2773, 2774. Wrongful act, against, §§ 2773, 2774. INDENTURE. See Apprenticeship. INDICTMENT. Nuisance, for, §§ 3491, 3492. INDORSEMENT. See Negotiable Instruments, VIII. Apprenticeship, indentures of, §§ 266, 275. Bill of lading, of, § 2127. Marriage certificate, § 73. Non-negotiable instrument, transferable by, § 1459. Stock, necessary to transfer, § 324. Surveyor general's on plat of right of way, § 478. Warehouse receipt, indorsement of. See Warehousemen. INFANTS. See Adoption; Guardian and Ward; Parent and Child; Ap- prenticeship: Legitimacy. Abandonment of. See Adoption. Abduction forbidden, § 49. Civ. Code — 71 1122 INDEX. INFANTS. (Continued.) Accumulation, income from, when applied to support of, § 726. Accumulations, during minority, §§ 722-733. See Accumulations. Action by, guardian must conduct, § 42. Action, minor may enforce rights by, § 42. Action, right of infant to maintain, § 42. Adoption of. See Adoption. Adults, who are, § 27. Agent, appointment of, by, § 33. Apprenticing. See Apprenticeship. Building and loan shares may be owned by, § 643. Child en ventre sa mere, rights of, § 29. Contract, competency to, §§ 1556, 1557. Contract rights of, §§ 33, 34. Contracts of, validity. §§ 33, 34. Cruelty to children. See Societies for Prevention of Cruelty to Chil- dren and Animals. Custody of, code provisions regulating, § 32. Custody, rules governing court in awarding, § 246. Custody of. See Parent and Child. Deposits in bank, how held and paid. Appendix, tit. "Banking," § 16. Delegation of power by, § 33. Disabilities of, § 33. Disaffirmance of contracts by personal representative, § 35. Disaffirmance of contracts, generally, §§ 34, 35. Disaffirmance of contracts for necessaries, § 36. Disaffirmance of contracts, limitation on, § 35. Disaffirmance of contract, return of consideration, § 35. Disaffirmance of contract under authority of statute, § 37. Duty of child to support parent, § 206. Duty of parent to support child. See Parent and Child. En ventre sa mere, rights of, § 29. Exemplary damages, liability for, § 41. Guardian holding over after termination of estate, liability, § 3335. Guardian must conduct action by, § 42. Guardians. See Guardian and "Ward. Head of family, as. § 1261. Homestead stock may be owner by, § 561. Land and building shares may be owned by, § 643. Legitimacy of children. See Legitimacy; Parent and Child. Limit of term of lease of property of infant, § 718. Marriage, condition in restraint of, valid, § 710. Marriage of, annulment of, § 82. Marriage, of, conditions restraining, effect of, § 710. Marriage of, consent of guardian necessary when, § 69. Marriage of, contract in restraint of valid, § 1676. Marriage of, who capable of, § 56. Marriage settlement by, maj^ be made, § 181. May make and withdraw deposits in savings and loan society, § 575. Necessaries, contract for not to be disaffirmed, § 36. Orphan asylums. See Orphan Asylums. Period of minority computed, how, § 26. Personalty not in possession, contracts respecting, § 33. Posthumous child, birth of, defeats future contingent interest, when, § 739. Posthumous child, property rights of, §§ 698, 739. Posthumous child. See Posthumous Children. Eeal property, contracts respecting, § 33. Savings bank, may be depositor and draw dividends, § 575. INDEX. 1123 INFANTS. (Continued.) Savings bank, may own stock in, § 575. Stock of, liow represented at corporate election, § 313. Support of, out of accumulations of property, § 726. Support, mutual liabilities between parent and child, § 206. Support of child. See Parent and Child. Torts of, liability, § 41. Unborn child, rights of, § 29. Wages, assignment of by, written consent of parent or guardian necessary, § 955. Who are infants, § 25. INFOEMATION. See Insurance. Nuisance, for, §§ 3491, 3492. Regulated by Penal Code, § 3492. INHERITANCE. See Succession. Distribution of commusity property on death of husband, § 1402. Distribution of community property on death of wife, § 1401. Estate of. See Eeal Property. General rules of descent, § 1386. Illegitimate child, by. See Legitimacy. Posthumous children, by. See Posthumous Children. Words of, not necessary to pass fee, § 1072. INJUNCTION. Allowed in what cases, §§ 3366, 3422. Allowed, not, in what cases, § 3423. Contract, breach of, when not enjoined, § 3423. Court of another state, proceedings in, not stayed, § 3423. Federal courts, proceedings in, not restrained, § 3423. Forfeiture, not enforced, § 3369. Grounds for granting, § 3423. Is provisional or final, § 3420. Judicial proceedings, not stayed, § 3423. Legislative act of municipal corporation, not restrained, § 3423. Multiplicity of suits, to prevent, §§ 3422, 3423. Nuisance, prevention of, § 3369. Office, when not granted in cases respecting, § 3423. Penal law, not granted to enforce, § 3369. Penalty, not enforced by, § 3369. Preventive relief granted as provided by laws of state, § 3366. Preventive relief granted only in cases specified in code, § 3274. Preventive relief, how given, § 3368. Preventive relief is granted by, § 3420. Preventive relief. See Preventive Relief. Provisional, regulated by Code of Civil Procedure, § 3421. Statute, enforcement of not restrained, § 3423. Trust, in case respecting, § 3422. Where pecuniary compensation difficult to ascertain, § 3422. Where pecuniary compensation would not afford relief, § 3422. INJURY. See Damages. Contract for exemption from, § 1668. Obligation to abstain from, § 1708. Right of protection from, § 4.3. Right to defend from, § 50. Threat of, renders contract voidable, §§ 1569, 1570. INLAND NAVIGATION INSURANCE. See Insurance Corporation. 1124 INDEX. INNKEEPER. See Inns. Baggage, lien on, how enforced, § 1861. Baggage, lien on, rights where baggage not property of guest, s 1S61. Baggage, have lien on for unpaid charges, § 1861. Baggage, sale of for charges, proceedings and disposition of proceeds, § 1861. Baggage, sale of for charges, proceedings bar action against, § 1861. Charges, for what services only can be made, § 1863. Charges, improper, damages, § 1863. Charges, posting statement of, § 1863. Depositaries for hire, liability is that of, § 1859. Liability of,.§§ 1859,1860. Liability of, exemption from, on keeping safe and posting notice, § 1860. Luggage, limitation of liability for, § 1859. Sale of unclaimed baggage, procedure for, and disposition of proceeds, § 1862. Sale of unclaimed baggage, right of, § 1862. INNS. See Innkeepers. All citizens to have equal rights, § 51. Denial of equal rights, punishment, § 52. Inciting denial of equal rights, punishment, § 52. Limitation of liability for valuables, where receipt not given, § 1860. INSANE PERSONS. Agency terminated by incapacity of parties, §§ 2355, 2356. Asylum, proceedings when placed in, by superior court, § 258. Asylum, right of investigation before jury when placed in, § 258. Asylum, superior court, power to place in, § 258. Contract, competency to, §§ 38, 39, 1556, 1557. Contracts of persons not entirelv Avithout understanding, effect of, §39. Contracts of persons without understanding, effect of, § 38 Contracts of, rescission of, § 39. Custody of, code provisions regulating, § 32. Employment terminated by incapacity of parties, §§ 1996, 1997. Exemi^lary damages against insane person, § 1:1. Homestead of, application for order to sell or mortgage, service and publication of, § 1269b. Homestead of, may be sold or mortgaged for what purposes, § 1269a. Homestead of, petition to sell or mortgage, subscription and verifica- tion of, § 1269a. Homestead of, petition to sell or mortgage, what to state, § 1269a. Homestead of, public administrator representing on petition to sell or mortgage, fee of, § 1269b. Homestead of, public administrator when to represent, on petition to sell or mortgage, § 1269b. Homestead of, sale or mortgage of, bond on, § 1269c. Homestead of, sale or mortgage of, effect of, § 1269c. Homestead of, sale or mortgage of, report and confirmation, § 1269c. Homestead of, sale or mortgage of, when ordered, § 1269c. Homestead of, sane spouse may petition to sell or mortgage, § 1269a. Insanity revokes proposal to contract, § 1587. Lease of estate of, limit of term of, § 718. Marriage license not to issue to, § 69. Marriage of, annulment of, § 82. Necessaries, liability for, § 38. Non-resident, guardian of property may be appointed, § 244. INDEX. 1125 INSANE PERSONS. (Contiuued.) Powers of, after incapacity adjudged, § 40. Proposal, insanity revokes, § 1587. Eescission of contracts of, § 39. Restoration, certificate of, evidence of legal capacity, § 40. Stock of, how represented at corporate election, § 313. Superior court may appoint guardian of, in what cases, § 243. Torts of, liability, § 41. Trustee discharged by iiisanity, § 2282. INSOLVENCY. See Assignment for Creditors; Fraudulent Conveyance. Consignor rhay stop goods in transit on, of consignee, § 3076. Defined, §§ 3077, 3450. Of consignee, what constitutes, § 3077. Of principal in guaranty, removal from state, when amounts to, § 2802. Of special partnership, § 2491. Of special partnership, preferential assignments forbidden, § 2496. Stoppage in transit in case of, §§ 3076-3080. INSPECTION. Of things sold with warranty, § 1785. INSTRUMENTS. Action to obtain judgment proving instrument, § 1203. Acts curing defects in, § 1207. Affecting title to real property, ownership of, § 994. Burden of proof of showing want of consideration, § 1615. By attorney in fact, executed, how, § 1094. By married women, acknowledged, how, § 1093. Cancellation of, in general, §§ 3412-3414. Certain non-negotiable written, transferable, § 1459. Code does not affect instruments made before, §§ 1205, 1206. Containing condition wrong per se, void, § 709. Distinction between sealed and unsealed abolished, § 1629. Evidencing title declared by judgment, how proved by record, § 1159. Handwriting may be proved, when, § 1198. In writing prima facie import consideration, § 1614. Judgment proving, action to obtain, § 1203. Non-negotiable written instruments, transferability, § 1459. Officers authorized to take proof of, powers of, § 1201. Proof of, action for, and effect of the judgment, §§ 1203, 1204. Proof of execution of, how made, §§ 1185, 1198. Proof of execution of, when not acknowledged, § 1195. Proof of, witness to prove what, § 1197. Proved by other than subscribing witness, how recorded, § 1162. Unrecorded, valid as between parties with notice, § 1217. Warranty on sale of, § 1774. Witness, proving to be personally known to officer taking proof, § 1196. INSULT. Right of protection from, § 43. 1126 INDEX. INSURANCE. I. Object, definition and kinds of; code provisions governing. II. Parties to; who may insure or be insured. m. Insurance by agent, factor, mortgagor, part owner, partner, or trustee. IV. Validity, avoidance, and rescission of. V. Insurable interest; what may be insured against. VI. Concealments and representations. VII. Warranties. VIII. Policy. IX. Premium. X. Change or transfer of interest. XI. Over-insurance; double insurance; reinsurance. XII. Loss. XIII. Questions relating particularly to fire insurance. XIV. Questions relating particularly to life insurance. XV. Questions relating particularly t9 marine insurance. Commissioner. See Insurance Commissioner. Corporations. See Insurance Corporation. I. Object, definition and kinds of; code provisions governing. Accident companies. See Insurance Corporations. Code provisions govern all kinds of insurance, § 2534. Defined, § 2527. Fraternal societies exempt from insurance laws, § 451. Indemnity, §§ 2772-2777. Insurance corporations, particular kinds of. See Insurance Corpora- tions; also the particular tiile. Kinds of, § 2533. Sole object of is indemnitj- of insured, § 2551. Title insurance companies. See Title Insurance Corporations. II. Parties to; who may insure or be insured. Any one except public enemy may be insured, § 2540. Description of insured in general terms, who only can claim benefit of, § 2592. Insured, who is, § 2538. Insured, who may be, § 2540. Insurer, who is, § 2538. Parties are insured and insurer, § 2538. Special partnership cannot be formed for business of, § 2477. Successive owners, policy may be so framed as to inure to, § 2592. Who may insure, § 2539. Whose interest is covered by policy, § 2588. III. Insurance by agent, factor, mortgagor, part owner, partner, or trustee. Agent, by, form of policy, § 2589. Fac-tor may insure, § 2368. Mortgaged property, insurance on, § 2541. Mortgagor, insurance by in his own name, payable to mortgagee, effect of, § 2541. Mortgagor, insurance bv payable to mortgagee, acts of mortgagor, effect of, §§2541, 2542. INDEX. 1127 INSURANCE. III. Insurance by agent, factor, mortgagor, part owner, partner, or trustee. (Continued.) Mortgagor, insurance by payable to mortgagee, mortgagee may per- form acts required of mortgagor, § 2541. Mortgagor, transfer of insurance by to mortgagee, and new contract with assignee, effect of, § 2542. Partner, by, rights of copartner, form of policy, § 2590. Part owner, by, rights of co-owner, form of policy, § 2590. Trustee, by, form of policy, § 2589. IV. Validity, avoidance, and rescission of. Agreement before loss not to transfer claim, is void, § 2599. Avoidance, policy may provide for on violation of provisions, § 2611. Breach of immaterial provisions does not avoid, § 2611. Breach of warrant. See post, VII. Fraudulent valuation in marine insurance, rescission of contract, § 2736. Gaming policy, void, § 2558. Rescind, time for exercising right to, § 2583. Rescission for alteration increasing risk, § 2753. Rescission for concealment, §§ 2562, 2569-. Rescission for false representation, § 2580. Rescission for fraudulent valuation in marine insurance, § 2736. Rescission for violation of material provision in policy, § 2610. Rescission for violation of material warranty, § 2610. Rescission where representation in marine policy intentionally false, § 2676. Return of premium where policy voidable for fraud, § 2619. Stipulation for payment irrespective of interest, void, § 2558. Stipulation that policy is evidence of insurable interest, void, § 2558. Void, if without insurable interest, § 2551. V. Insurable interest; what may be insured against. Contingent or expectant interest, right to insure against, §§ 2531, 2547, 2549. Insurable interest defined, § 2546. Insurable interest, existing interests, § 2547. Insurable interest in case of marine insurance. See post, XV. Insurable interest in expectancy, §§2531, 2547, 2549. Insurable interest in inchoate interest, § 2547. Ifasurable interest in life, § 2763. Insurable interest in life, assignment to one without, § 2764. Insurable interest in property, what constitutes, §§ 2546, 2547. Insurable interest, insurance without, void, § 2551. Insurable interest may consist in what, § 2547. Insurable interest, measure of, § 2550. Insurable interest of carrier or depositary, § 2548. Insurable interest, stipulation for payment irrespective of, void, § 2558. Insurable interest, stipulation that policy is evidence of, void, § 2558. Insurable interest, time when must exist, § 2552. Lottery or lottery prize, not insurable, § 2532. Unknown events, what may be insured against, § 2531. What events may be insured against, § 2531. VI. Concealments and representations. Code provisions as to, apply to modification of contract, § 2582. Concealment defined, § 2561. Concealment entitles party to rescission, § 2562. 1128 INDEX. INSURANCE. VI. Concealments and representations. (Continued.) Concealment, faets which need not be disclosed, § 2564. Concealment, fraudulent omission to communicate facts, rescission, § 2569. Concealment, information as to interest of assured, necessity of com- municating, § 25GS. Concealment, information of one's own judgment need not be com- municated, § 2570. Concealment in marine insurance. See post, XV. Concealment, materiality of facts, test of, § 2565. Concealment, matters of opinion need not be communicated, § 2570. Concealment, provisions as to applv to modification of contract, § 2582. Concealment, right to information of material facts, when waived, §2567. Concealment, what facts to be disclosed, § 2563. Disclosed, facts that must be, § 2563. Disclosed, facts that need not be, § 2564. Fraudulent omission to communicate facts, rescission for, § 2569. Interest of insured, necessity of communicating, § 2568. Materiality of facts, test of, § 2565. Matters each party bound to know, § 2560. Matters that must be disclosed, § 2563. Matters that need not be communicated without inquiry, § 2564. Omission to communicate facts, intentional or fraudulent, rescission for, § 2569. Eepresentation as to facts concerning which one has no personal knowledge, liability, § 2578. Eepresentation as to future, effect of, § 2574. Eepresentation, false, when deemed to be, § 2579. Eepresentation, falsity, effect of, § 2580. Representations iu marine insurance. See post, XV. Eepreseutations, interpretation, rules for, § 2573. Eepresentation, materiality of, how determined, § 2581. Eepresentation may be altered or withdrawn, when, § 2576. Eepresentation may be at time of issuing policy or before, § 2572. Eepresentation ma,y be oral or written, § 2571. Eepresentation may not qualify express provision of policy, § 2575. Eepresentation may qualify implied warranty, § 2575. Eepreseutations provisions as to apply to modification of contract, § 2582. Eepresentation refers to what time, § 2577. Eepresentation, return of premium where policy voidable for mis- representation, § 2619. Usages, general, of trade, each party bound to know, § 2566. Waiver of right to information of material facts, § 2567. VII. Warranties. Breach of warrantv in its incei)tion jirevents policy from attaching, § 2612. Breach without fraud, effect of, § 2612. Express, must be in policy or in instrument signed and referred to in, § 2605. Express or implied, are, § 2603. Form of, § 2604. Future, statement as to. effect of, § 2608. jVo particular form of words necessary to, § 2604. Past or present, statement as to, effect of, § 2607. Past, present or future, nmy relate to, § 2606. INDEX. 1129 INSURANCE. VII. Warranties. (Continued.) Performance of, relating to future, excused, when, § 2609. Eepresentation may qualify implied warranty, § 2575. Statements, wdiat, amount to warranties, §§ 2607, 260S. Violation of, avoids policy, § 2610. Violation of, policy may pro\ide for avoidance, § 2611. VIII. PoUcy. Defined, § 2586. Description of insured in general terms, who can, claim benefit, §2591. Form of, on insurance by agent, § 2588. Form of, on insurance b.y part owner or copartner, § 2590. Form of, on insurance by trustee, § 2589. How issued and signed, § -416. Material violation avoids, § 2610. May provide for avoidance, § 2611. Not transferred by transfer of thing insured, § 2593. Open, defined, § 2595. Open or valued, policies are, § 2594. Open policy, marine, estimating loss under, § 2741. Eunning, defined, § 2597. Transfer of thing insured, effect of, § 2593. Valued policy, and rights and liabilities under, § 2757. Valued policy, defined, § 2596. Valued policies. See post, XIII, XV. What must be stated in, § 2587. Whose interest covered by, § 2588. IX. Premium. Contribution on return of on over-insurance, §§ 2621, 2622. Earned, when, § 2616. Effect of acknowledging receipt of, in policy, § 2598. How payable to mutual life, etc., company, § 446. Eeceipt of premium, effect of acknowledging in policy, § 2598. Eeturn of, because of ignorance of facts, § 2619. Eeturn of entire premium, insured when entitled to, § 2617. Eeturn of, for fraud, § 2619. Eeturn of on surrender of policy for definite term, § 2617. Eeturn of, when allowed, § 2617. Eeturn of, when not allowed, § 2618. Eeturn of when over-insurance by several insurers, § 2620. Eeturn of where liability never incurred under policy, § 2619. X. Change or transfer of interest. Alienation, joint owners, or partners, transfer between does not avoid, § 2557. Change of interest after loss, effect of, § 2554. Change of interest between partners, joint owners, etc., effect of, §2557. Change of interest by death of insured, § 2556. Change of interest in one of several things, § 2555. Change of interest in thing insured, effect of, §§ 2553-2557. Co-tenants, transfer of interest between, does not avoid, § 2557. Mortgagee, assignment to of policy, effect of, § 2541. Partners, transfer between does not avoid, § 2557. Policy, transfer of thing insured, effect of, § 2593. Successive insurances, policies contemplating, § 2597. Successive owners, policy may be drawn to inure to, § 2592. 1130 INDEX. INSURANCE. X. Change or transfer of interest. (Continued.) Transfer claim, contract before loss not to, is void, § 2599. Transfer of insured thing does not transfer policy, § 2593. Transfer of interest in part of thing insured, effect of, § 2553. Transfer of thing insured, effect of, §§ 2553-2557, 2593. XI. Over-insurance; double insurance; reinsurance. Over-insurance, contribution to premium, §§ 2621, 2622. Over-insurance, return of premium, § 2620. Double, contribution, § 2642. Double, defined, § 2641. Reinsurance, §§ 426, 428. Reinsurance defined, § 2646. Reinsurance, disclosures required, § 2647. Reinsurance, original insured has no interest in, § 2649. Reinsurance presumed to be against liability, § 2648. XII. Loss. Agreement before loss not to transfer claim is void, § 2599. Certificate of, when dispensed with, § 2637. Excepted perils, § 2628. " Exoneration of insurer, what amounts to. § 2629. Incurred in rescue from peril insured against, insurer liable, § 2627. Interest covered by policy, § 2588. Marine insurance, in. See post, XV. Negligence does not exonerate insurer, § 2629. Notice of, §§ 2633-2637. Notice of, defects in, waived when, § 2635. Notice of, effect of delay to give, § 2633. Notice of, to be given without delay, § 2633. Notice of, waiver of defects in, § 2635. Notice of, waiver of delay in, § 2636. Partial, under valued policy, § 2757. Perils, excepted, cover what losses, § 2628. Perils, loss in rescuing from. § 2627. Perils, remote and proximate, § 2626. Preliminary proofs, §§ 2634-2637. Preliminary proofs of, certificate or testimony of third person, dis- pensed with when, § 2637. Preliminary proofs of, certificate or testimony of third person, rea- sonable diligence to procure, sutficient, § 2637. Preliminary proofs of, defects in waived, when, § 2635. Preliminary proofs of, delay in waived, when, § 2636. Preliminary proofs of, suflHciency of, § 2634. Remote and proximate cause. § 2626. Willful act of insured exonerates insurer, § 2629. XIII. Questions relating particularly to fire insurance. Acts increasing risk but not violating policy, effect of, § 2755. Alteration increasing risk without consent, rescission for, § 2753. Alteration not increasing risk does not affect, § 2754. Contribution in case of domestic insurance, effect of insolvencv, § 2642. Double insurance, contribution in case of, § 2642. Effect of valuation in policy, §§ 2756. 2757. Examination of premises by insured, and value fixed, § 2757. Eire insurance corporations. See Ins^urance Corporations. Fire patrol, underwriters may establish. See Fire Patrol, INDEX. 1131 INSURANCE, xm. Questions relating particularly to fire insurance. (Continued.) Increase of risk, acts effecting an, but not violating the policy, § 2755. Increase of risk, alterations that do not effect an, effect of, § 2754. Increase of risk, alterations that effect an, effect of, § 2753. Insurable interest. See ante, V. Measure of indemnity, § 2756. Mortgagor, insurance by, for benefit of mortgagee, effect of, and of acts of mortgagor, § 2541. Mortgagor, assignment of policy by to mortgagee, effect of and of acts of mortgagor, § 2541. Mortgagor, insurance by, right of mortgagee to perform acts re- quired of mortgagor, § 2541. Notice of loss to be given without unnecessary delay, § 2633. Partial loss in valued policy, amount to be paid, § 2757. Property which may be insured, § 426. Reinsurance, §§ 426, 428. Valuation, clause stating that value has been fixed, to be inserted, when, § 2757. Valuation, contribution where several policies, § 2757. Valuation, does not prevent stipulation as to repairing, rebuilding, or replacing, § 2757. Valuation, effect of, § 2756. Valuation, expense of, insured to paj', § 2757. Valuation, insurer not required to pay more than amount stated, § 2757. Valuation, partial loss, amount to be paid, § 2757. Valuation, total loss, whole amount to be paid, § 2757. . Value of interest, how may be fixed, § 2757. XIV. Questions relating particularly to life insurance. Assessment companies. See cross-references under Assessment In- surance. Assignment for creditors, insurance upon life does not pass, § 3470. Assignment or bequest of policy, §§ 2764, 2765. Assignment, necessity of notice of, § 2765. Does not pass on assignment for creditors, § 3470. Health insurance. See Insurance Corporations. Insurable interest, in life and health, who has, § 2763. See ante, V. ^ Life. See Insurance Corporations. Measure of indemnity. § 2766. Non-forfeiture clause, § 450. Paid-up policy, right to, § 450. Life, provision for paid-up policy on default after three payments, § 450. Life, provision for paid-up policy on default, effect of failure to in- sert, § 450. Life, provision for paid-up policy on default, not waived by con- tract, § 450. Life, requirement of paid-up policy on default does not apply to an- nuities, industrial policies or term contracts, § 450. Premium, how payable to mutual life, etc., company, § 446. Surrender of policy for cash sum on default after three payments, §450. "When may be made payable, § 2762. XV. Questions relating particularly to marine insurance. Abandonment, acceptance not presumed from silence, § 2727, Abandonment, acceptance of, admits what, § 2728. 1132 INDEX. INSURANCE. XV. Questions relating particularly to marine insurance. (Continued.) Abandonment, acceptance of conclusive, § 2728. Abandonment, acceptance of not necessary, § 2727. Abandonment, accepted, is irrevocable, § 2729. Abandonment, agent's acts after, effect of, § 2726. Abandonment, agents of insured become agents of insurer, § 2726. Abandonment defined, § 2716. Abandonment, effect of, where information incorrect, § 2720. Abandonment, eft'eet of, where thing abandoned was restored, § 2720. Abandonment, equivalent to transfer to insurer, § 2724. Abandonment ineffectual, when, § 2720. Abandonment is defeated, when, § 2717. Abandonment, liability of insurer after, § 2726. Abandonment made, how, § 2721. Abandonment must be absolute, § 2718. Abandonment must not be partial or conditional, § 2718. Abandonment, no other cause than specified can be relied on, § 2723. Abandonment, notice, is made by, § 2721. Abandonment, notice of may be oral or written, § 2721. Abandonment, notice of need not contain proof of interest or loss, § 2722. Abandonment, notice of, not necessary on total loss, § 2709. Abandonment, notice of, requisites of, § 2722. Abandonment, notice of, what to specify, § 2722. Abandonment not presumed from mere silence, § 2727. Abandonment of freightage, right of, § 2717. Abandonment of particular portion separately valued, when proper, § 2717. Abandonment of ship, effect on freightage, § 2730. Abandonment, omission to make, right of recovery, § 2732. Abandonment, refusal to accept, liability on, § 2731. ■ Abandonment, requisites of notice of, §§ 2722, 2723. Abandonment, time within which to be made, § 2719. Abandonment, waiver of formal, § 2725. Abandonment, when proper, § 2717. Against actual total loss covers what, § 2712. Average, general, §§ 2148-2155. See General Average. Average loss, general, liability for, § 2711. # Average, particular, insurance free from, effect of, § 2711. Average, particular, insurance free from, liability for general aver- age loss, § 2711. Charterer has insurable interest, § 2665. Charter-partv, insurable interest exists under, § 2663. Concealment, effect of, § 2672. Concealments affect only risk in question, when, § 2672. Concealments do not vitiate entire policy, when, § 2672. Contribution in case of double insurance, effect of insolvency, § 2642. Contribution in case of partial or average loss, § 2642. Contribution, indemnity where insured has right of, § 2745. Contribution, subrogation of insurer, § 2745. Course of sailing determined, how, § 2693. Definition of marine insurance, § 2655. Deviation, defined, § 2694. Deviation exonerates insurer, § 2697. Deviation, improper, when, § 2696. Deviation, proper, when, § 2695. Documents casting suspicion on nationality or neutrality, not to carry, § 2688. INDEX, 1133 INSURANCE. XV. Questions relating particularly to marine insurance. (Contiuued.) Documents showing nationality and neutrality, duty to carry, § 2688. Double insurance, contribution in case of, § 2642. Double insurance, order of liability, § 2642. Double insurance, policies deemed to be simultaneous, wben, § 2642. Expense and labor, liability of insurer for, § 2743. False representation in policy, rescission for, § 2676. Fraudulent valuation, rescission of contract for, § 2736. Freightage, expected, insurable interest in, §§ 2662, 2663. Freightage signifies what, § 2661. General average loss, liai3ility for, §§ 2711, 2744. Indemnity, costs of repairs, § 2743. Indemnity, expenses in trying to recover property, § 2743. Indemnity, general average loss, liability for, § 2744. Indemnity, loss, rules for estimating under open policy, § 2741. Indemnity, partial loss, liability on, § 2737. Indemnity, profits, measure of recovery for, § 2738. Indemnity, profits, valuation of, fixes loss where property lost, § 2740. Indemnity, profits, valuation of, loss presumed from loss of prop- erty, § 2740. Indemnity, valuation, apportionment where part only exposed to risk, § 2739. Indemnity, valuation, conclusiveness of, § 2736. Indemnity, valuation, where hypothecation by bottomry or respon- dentia, § 2736. Indemnity, where cargo insured against partial loss arrives dam- aged, § 2742. Indemnity, where insured has right of contribution, § 2745. Information communicated to be exact and state whole truth, § 2669. Information of belief or expectation of third person, when material, § 2670. Information, what must be communicated, § 2669. Insurable interest in expected freightage, §§ 2662, 2663. Insurable interest in profits, § 2664. Insurable interest of charterer, § 2665. Insurable interest, owner has, where ship chartered, § 2659. Insurable interest reduced by bottomry, § 2660. Insurable interest under charter-party, § 2663. Labor and expenses, liability of insurer for, § 2743. Liability where cargo reshipped, § 2707. Loss, average, § 2711. Loss, contribution in case of partial or average, § 2642. Loss may be total or partial, § 2701. Loss, partial, anchors, cannon, and sheathing metal, how estimated, § 2746. Loss, partial, liability on, §§ 2737, 2742. Loss, partial, measure of indemnity, §§ 2737, 2742. Loss, partial, one third new for old, § 2746. Loss, partial, what is, § 2702. Loss, particular average, agreement that property free from, effect of, §2711. Loss, presumption of, from absence, length of time suflicient to raise, § 2706. Loss, presumption of from continued absence, § 2706. Loss, prior, presumption of knowledge of, § 2671. Loss, rules for estimating under open policy, § 2741. Lccs, total actual, insurance against, covers what loss, § 2712. 1134 INDEX. INSURANCE, XV. Questions relating particularly to marine insurance. (Continued.) Loss, total actual, insurance against, does not cover constructive total, § 2712. Loss, total, actual total loss, insured entitled to payment without notice of abandonment, S 2709. Loss, total, actual total loss, what is, § 2704. Loss, total, constructive total loss, what is, § 2705. Loss, total, is actual or constructive, § 2703. Marine. See Insurance Corporations. Marine insurance corporations. See Insurance Corporations. Material information, what is, § 2670. Measure of indemnity in general, §§ 2736-2746. Neutral papers, duty to carry, § 2688. On cargo when voyage broken up, § 2707. One third new for old, exceptions to rule of, § 2746. Open policy, estimating loss under, § 2741. Payment, rights of insurer on, § 2725. Prior loss, knowledge of, presumption of, § 2671. Profits, insurable interest in, § 2664. Profits, measure of recovery for, § 2738. Property which may be insured, § 426. Reinsurance, §§426, 428. Repairs, cost of, liability for, § 2743. Representation eventually false, effect of, § 2677. Representation intentionally false, insurer may rescind entire con- tract, § 2676. Representation of expectation, effect of falsity, § 2677. Reshipmeut when voyage broken up, liabilit}-, §§ 2707, 2708. Seaworthiness as to cargo, § 26S7. Seaworthiness as to insurance on ship and unseaworthiness as to in- surance on cargo, § 2687. Seaworthiness, at what time must exist, § 2683. Seaworthiness, defined, § 2682.' Seaworthiness, different degrees of at different stages of voyage, § 2685. Seaworthiness, unseaworthiness during voyage, delay in repairing exonerates insurer, when, § 2686. Seaworthiness, warranty of, § 2681. Seaworthiness, what required to constitute, § 2684. Seaworthiness where cargo is to be transshipped, § 2683. Ship's manager may not insure, when, § 2389. Simultaneous, policies when deemed to be, § 2642. Subrogation of marine insurer, § 2745. Successive insurances, contribution in ease of partial or average loss, § 2642. Successive policies, order of liability, § 2642. Unseaworthiness occurring in voyage, delay in repairing, effect of, § 2686. Valuation applied to profits, loss conclusively presumed from loss of property, § 2740. Valuation, apportioned when part only exposed, § 2739. Valuation, conclusiveness of, § 2736. Valuation, fraudulent, rescission of contract, § 2736. Valuation of profits, fixes amount of loss where property lost, § 2740. Valuation of profits, loss presumed from loss of property, § 2740. Valuation where hypothecation by bottomry or respondentia, effect of, § 2736. Voyage, broken up, duty of master to reship, § 2707. INDEX. 1135 INSURANCE. XV. Questions relating particularly to marine insurance. (Continued.) Voyage broken up, liability of insurer on reshipment, §§ 2707, 2708. Voyage, course of sailing, how determined, §§ 2692, 2693. Voyage insured, how determined, §§ 2692, 2693. Warranty of neutrality, § 2688. Warranty of seaworthiness, § 2681. When insured entitled to payment, § 2709. INSURANCE COMMISSIONER. Duties and powers regarding mutual assessment corporations, § 453 1. Expenses in connection with mutual assessment 'corporations, pre- sentment, allowance, and payment, § 453o. Foreign insurance companies on assessment plan. See Mutual Life, health. Accident, and Annuity Companies on Assessment Plan. Insurance company to report investments to, § 427. Mortgage insurance companies, reports of, to, § 453gg. Mortgage insurance corporations, authority in relation to. See Mortgage Insurance Corporations. Power of, over investments by insurance corporations, § 427. Title insurance corporations, power and authority over. See Title Insurance Corporations. INSURANCE COMPANIES. See Insurance; Insurance Corporations. Particular kind of insurance. See particular title. INSURANCE CORPORATIONS. See Insurance. Accident, investment of funds by, § 421. Accident insurance. See Accident Insurance. Act relating to non-profit co-operative corporations does not apply to, § 653za. Assessments, levying and collecting, § 414. Assessments on stock, limitation of, § 332. Benevolent societies exempt from insurance laws, § 451. Benevolent societies not insurance corporations, § 451. Capital and accumulations, how invested, § 421. Capital stock, subscription to, opening books of, § 414. Capital stock, subscription to, securing, § 414. Co-operative business associations, provisions relating to, do not apply to, § 6531. Directors, alteration in number of, § 443. Directors liable for loss on insurance, when, § 418. Directors liable on what policies, § 418. Directors, not to be less than five, § 443. Dividends, amounts to be reserved before making, § 429. Dividends, of what and when declared, § 417. Dividends, of what not to be declared, § 417. Dividends, when only to be declared, § 452. Dividends to be declared from profits only, § 429. Fire and marine, assessment of stock, extent of power of, § 332. Fire and marine, capital to be paid in cash in twelve months, § 424. Fire and marine, certificate of capital stock to be filed, and when, §425. Fire and marine, dividends, amounts to be reserved before making, §§ 429, 430. Fire and marine, extent of power of assessment, § 332. Fire and marine, investments, approval of, entry of and what to show, § 421. Fire and marine, investments, power of insurance commissioner over, §421. 1136 INDEX.. INSURANCE CORPORATIONS. (Coutiuued.) " Fire aud marine, limitation on risivs, § 42S. Fire and marine, limit on one rislv, S 428. Fire and marine, jiayment of subscriptions, § 424. Fire and marine, property which may be insured, § 426. Fire and marine, questions rehitiug particularly to. See Insurance, XIII, XY. Fire aud marine, rate of risk, § 42S. Fire and marine, reinsurance, § 426. Fire and marine, reservations by companies with less than two hun- dred thousand capital, § 430. Fire and marine, risk, limitation on, § 42S. Fire and marine, ship manager cannot insure without authority, § 2389. Fire and marine, twenty-five per cent of capital to be paid up be- fore policies issued, §§ 419, 424. Fire, county fire insurance companies, organization aud management of. Appendix, tit. "Insurance." Fire insurance, fire patrol, rights and powers as to. See Fire Patrol. Fire, life, health, accident aud marine insurance companies, accumu- lations, how invested, § 421, subd. 5. Fire, life, health, accident, aud marine insurance companies, ap- proval of investment by two thirds of directors, § 421, subd. 6. Fire, life, health, accident and marine insurance companies, limit on investments, § 421, subd. 6. Fire, life, health, accident and marine insurance companies, report of investments, § 421, subd. 6. Health, insurable interest in, who has, § 2763. Health, investment of funds by, § 421. Health, notice of bequest or transfer of, not necessary, § 2765. Health, policy may be transferred to one without interest, § 2764. Health, transferee may recover on, § 2764. Inland navigation insurance, dividends, amount to be reserved be- fore making, § 429. Insurance, law of, in general. See Insurance. Investment must not e:sceed market value of securities, § 421, subd. 6. Investments, funds, how may be invested, § 421. Investments, power of insurance commissioner over, § 421, subd. 6. Investments, report on stocks and ])onds, insurance commissioner nuiy require, § 422. Investments, stocks aud bonds, authority of insurance commissioner in valuing and finality of finding, § 422. Investments, stocks and bonds, how valued. § 422. Investments, to be reported to insurance commissioner, § 421, subd. 6. Fire and marine, investments by. See post. Investments, this title. Investments, fire aud marine insurance corporations, investments, approval of directors, entry of and what to show, § 421, subd. 6. Investments, fire and marine insurance corporation, approval of two- thirds of directors, § 421, subd. 6. Investments, fire and marine insurance corporations, duty to report to insurance commissioner, § 421, subd. 6. Investments, life insurance companies, investments, approval of two- thirds of directors, § 421. Investment, life insurance corporations, investments, approval of directors, entry of, and what to show, § 421, subd. 6. Investments, life insurance companies, policy loans not to be used as security which may be deposited with insurance commis- sioner, § 421. INDEX. 1137 INSURANCE CORPORATIONS. ((Joiitinued.) Investments, life insurance corporations, report of to insurance eom- niissioner, § 421, subd. 6. Investments, life insurance companies, loans upon its own policies, § 421, sub.l. 7. Investments, life in.surauce company, policy loans, cancellation of registration of policy, § 421, subd. '/. Investments, life insurance companies, policy loans not security, wliicli may be deposited with insurance commissioner, § 421, subd. 7. Investments, mortgage particix;ation certificates and securities guar- anteed by policies of mortgage insurance as legal investments for funds, § 453 ff. Life, amounts to be reserved before declaring dividends, § 431. Life, dividends when only to be declared, § 4.52. Life, insurance commissioner, furnishing data to for valuation of policies, § 447. Life, investment of funds by, § 421. See ante, Investments, this title. Life, lapse, non-forfeiture, deduction of premiums due, § 4oU. Life, lapse, paid-up policy, proof of death within year, § 450. Life, lapse, provision for non-forfeiture, § 450. Life, lap.se, provision for paid-up policy, § 450. Life, loans on its own policies, § 421. Life, non-forfeiture clause, § 450. Life, policies, i>ower to loan on, § 421, suVjd. 7. Life, policy, loans, provisions concerning, § 421, subd. 7. Life, policy without clau-ses for non-forfeiture and paid-up policy, penalty for issuing, § 450. Life, premium, non-payment, right to paid-up policy after three pay- ments, § 450. Life, proof of death within year, § 450. Life, questions relating jtarticularly to. See Insurance, XIV. Life, right to paid-up policy after three payments, § 450. Live-stock, act relating to life, health, and accident insurance of, on assessment plan. Appendix, tit. "Insurance." Loans upon policies, § 421. Mortgage insurance corporations. See Mortgage Insurance Corpora- tions. Mutual benefit and life associations. See Mutual Benefit and Life Associations. Mutual fire insurance corporations, act providing for organization and management of. Appendix, tit. "Insurance." Mutual insurance companies for insurance of life and health and against accident of live stock. Appendix, tit. "Insurance." Mutual insurance on as.sessment plan. See Mutual Life, Healtt, Accident and Annuity Insurance on Assessment Plan. Mutuallife, faealtn, and accident, in general, §§ 437-451. Mutual life, etc., by-laws may limit number shares one may hold, § 445. Mutual life, etc., by-laws may provide for protection of stockholders, § 445. Mutual life, etc., capital, deficiency in profits not to be divided in case of, § 439. Mutual life, etc., capital stock, amount of, § 437. Mutual life, etc., capital stock to be j»aid up before issuing policies, § 437. Mutual life, etc., declaration of fixed capital, making, filing, publish- ing, § 440. Civ. Code — 72 1138 INDEX. INSURANCE CORPORATIONS. (Continued.) Mutual life, etc., declaration of fixed capital, what to show, § 440. Mutual life, etc., directors insured entitled to vote at election of, § 442. Mutual life, etc., directors not to be less than twelve, § 443. Mutual life, etc., directors, number may be altered, § 443. Mutual life, etc., distribution of stock, where over-subscribed, § 437. Mutual life, etc., fixed capital, of what consists and deficiency therein, § 439. Mutual life, etc., guarantee fund, § 437. Mutual life, etc., guarantee fund discharged on filing certificate of capital, § 440. Mutual life, etc., guarantee fund, notes as constituting and restric- tions on, § 437. Mutual life, etc., guarantee fund to consist of what, § 438. Mutual life, etc., guarantee fund, to remain fixed and not subject to division, § 439. Mutual life, etc., guarantee notes and interest, how disposed of, § 441. Mutual life, etc., guarantee notes, commission and interest, § 441. Mutual life, etc., insured entitled to vote, when, § 442. Mutual life, etc., policies not to be issued until what time, § 437. Mutual life, etc., policies, right to paid-up policy, § 450. Mutual life, etc., policies upon basis of participation in profits, § 446. Mutual life, etc., policy, non-forfeiture clause, § 450. Mutual life, etc., premiums payable, how, § 446. Mutual life, etc., provisions for security of persons dealing with, § 445. Mutual life, etc., rejection of subscription, § 437. ' * Mutual life, etc., stockholders, provisions for protection of, § 445. Mutual life, etc., stock, limit on number of shares that may be held, § 445. Mutual life, etc., subscription, § 437. Mutual life, etc., surplus, § 437. Policies, binding effect of, § 416. Policies, by what officers to be signed, § 416. Policies, how issued, § 416. Policies, loans upon, § 421. Real property, restrictions on purchasing, holding and conveying, §415. Seal, policies without, § 416. Title insurance corporations. See Title Insurance Corporations. Trust fund to be deposited with state, mortgage participation cer- tificates or securities guaranteed by policies of mortgage insur- ance to be accepted, § 453ff. INTEMPERANCE. Divorce for, §§ 92, 107. See Divorce. INTENTION. Fraudulent, question of fact, § 3442. General terms restricted by main, § 1648. How ascertained, § 1637. How ascertained in revision of written instrument, § 3401. Of grantor in ambiguous grant, § 1068. Of testator, §§ 1317, 1370. Of testator, how ascertained, § 1318. Of trustor, necessary to creation of trust, § 2221. Overrules grammatical construction, § 1324. Overrules technical meaning, § 1327. INDEX. 1139 INTENTION. (Continued.) ' Particular clauses subordinate to general, § 1650. Presumption of, to destroy or cancel contract, § 1699. Eevision of contract so as to conform to, § 3399. Substantial compliance with, sufficient, § 1348. Superior to terms of written contract, when, § 1640. To deceive, an essential element of fraud, § 1572. To desert, not always co-existent with separation, § 100. To extinguish old obligation, necesssary in novation, § 1531. To govern interpretation of contract, § 1636. To make ademption, must be in writing, § 1351. When ascertained by the language, § 1638. When ascertained by the writing alone, § 1639. Words inconsistent with, rejected, § 1653. INTEREST. Acceptance of principal waives claim to, § 3290. Annual rate where no time fixed, § 1916. Any rate agreed on, allowed until entry of judgment, § 1918. Any rate may be agreed on, § 1918. Application of, § 1479. Bequest of, income when accrues, §§ 1366, 1370. Bottomry contract, rate, § 3022. Bottomry, court may reduce if exorbitant, § 3022. Building and loan corporation, rate of, §§ 634, 638. Cemetery bonds, rate on, § 611. Compound, on judgments not allowed, | 1920. Compound, parties may agree for, § 1919. Compound, trustee's liability for, § 2262. Computation of^ what deemed to be a year in,-§ 1917. Damages, as, §§ 3288, 3302, 3304, 3305, 3306. Damages, as in case of oppression, fraud, or malice, § 3288. Damages, interest on, § 3287. Damages prescribed in code are exclusive of, § 3357. Defined, § 1915. Foreign bill, on dishonor of, § 3236. Guaranty notes of mutual life insurance companies, on, § 441. In action ex delicto, § 3288. Judgment, on, §§ 1917, 1918, 1920. Land and building corporation, §§ 634, 638. Legacies, on, §§ 1369, 1370. Legal rate, § 1917. Loans by building and loan society, on, § 638. Offer of performance stops, § 1504. Protested bill, on, § 3236. Presumed on loan, § 1914. Principal, acceptance of, waives claim to interest, § 3290. Principal, agreement that interest shall become part of, § 1919. Kailroad bonds, on, § 456. Bate after breach of contract, § 3289. Rate after verdict, § 3289. Rate agreed on allowed until entry of judgment, § 1918. Rate deemed to be annual where period not fixed, § 1916. Rate in absence of contract, § 1917. Rate, on money borrowed by homestead corporation, § 560. Rate, parties may agree for any, § 1918. Rate stipulated by contract runs until superseded by verdict or new obligation, § 3289. Rate stipulated in contract runs after breach, § 3289. 1140 INDEX. INTEREST. (Continued.) Eespondentia, rate, § 3039. Special partner entitled to, § 2494. Time from which runs, § 1917. Trust companies, payable by. Appendix, tit. "Banking," § 95. Trustee liable for, if omits to invest trust funds, § 2262. Trustee's liability for, to beneficiary, § 2237. "Waiver of, by accepting principal, § 3290. Year, what deemed to be in computation of, § 1917. INTERESTS IN PROPERTY. Absolute, § 679. Chattel, § 765. • Classification, § 702. Denominated estates, § 701. Future, § 690. Future contingent, § 695. Future contingent, may be a«lternative, § 696. Future contingent, not void because improbable, § 697. Future, how defeated, §§ 739, 740. Future, none unless specified, § 703. Future, pass by transfer, § 699. Future, right of posthumous children, § 698. Future vested, § 694. Future, when not defeated by intermediate acts, §§ 741, 742. In common, § 685. In existing trust, liow transferred, § 1135. In ship, how transferred, § 1135. Joint, § 683. Limited, § 692. Mere possibility of, not transferable, § 700. Merger of, destroys servitude, § 811. Partnership, § 684. Perpetual, § 691. Present, § 689. Qualified, § 680. Time of creation of, § 749. Transfer of, when mortgage, § 2921. Trustee must give beneficiary notice of acquisition of, § 2233. What affected by transfer, § 1083. When void for suspending alienation, § 716. INTERLOCUTORY DECREE. In divorce proceedings, §§ 61, 131, 132. INTERPRETATION. See Construction. Contracts, of. See Contracts, VII. INTERPRETER. Acknowledgments, officer taking may employ, § 1201. INTERSECTIONS. See Eailroad Corporations. INTESTACY. All property chargeable with debts in case of, § 1358. Community property, disposition of on death of husband or wife, §§ 1401, 1402. Disposition of property in case of, §§ 1270, 1384. See Succession. Rules of descent of property in case of, § 1386. Succession in case of, §§ 1383-1409. See Succession. Will interpreted to avoid, if possible, § 1326. inde:x, 1141 INTESTATE. See Succession. Estate of chargeable with debts, § 1358. INUNDATION. Deposit in ease of, §§ 1815, 1816. INVENTIONS. Author of, has exclusive ownership, § 980. Property in, §§ 980-985. Subsequent inventor of same thing, rights of, §§ 984. INVENTORY. See Assignment for Creditors. Assignor for creditors must make, §§ 3461, 3462. Legatee for life, inventory by, and what to contain, § 1365. of separate property of wife, §§ 165, 166. Specific legatee for life must sign and deliver inventory to second legatee, § 1365. Wife's separate property, inventory of, §§ 165, 166. INVESTMENTS. Banks, investments by in its own stock. Appendix, tit. "Banking," Banks, investments by in stock of corporations. Appendix, tit. "Banking," § 37. Bonds of irrigation districts legal investment for mortgage insurance corporations, § 453ee. Bonds of permanent road divisions as legal investments for funds of insurance companies, § 421. Bonds of permanent road division as legal investments for mortgage insurance corporations, § 453ee. Building and loan corporations, of. See Building and Loan Corpora- tions. Mortgage insurance companies, by, limit on power of, § 453cc. See Mortgage Insurance Corporations. Mortgage insurance insurance corporations may invest in what ob- ligations, § 453ee. Mortgage participation certificates and securities guaranteed by policies of mortgage insurance as legal investment for corporate or trust funds, § 453ff . Savings banks, by. See Savings and Loan Corporations. Savings banks, what property may purchase, hold or convey. Ap- pendix, tit. "Banking," § 61. Title insurance companies, by. See Title Insurance Companies. Trust funds. See Mortgage Insurance Companies; Trusts. Insurance companies, how may invest funds, §§ 421, 427. See, also, Insurance Corporations. Trust companies are liable for. Appendix, tit. "Banking," § 94. Trustee, by, §§ 2261, 2262. See Trusts. IRRIGATION. See Water and Ca»al Corporation. •Joint owners of ditch or flume for, rights and liabilities. See Flumes. IRRIGATION CORPORATION. See Water and Canal Corporations. Transfer of stock, S 324. IRRIGATION DISTRICTS. Bonds of legal investments for mortgage insurance corporations, § 453ee. Investment of fiuuls of insurance coini)anies in bonds of, § 421, 1142 INDEX. ISLAND. Belongs to whom, §§ 1016-1018. ISSUE. Interpretation of, § 1071. J JACKS. Lien of owner of jack used for propagation, §§ 3062-3064. JAPANESE. Marriage between whites and mongolians forbidden, § 60. JETTISON. By whom may be made, § 2150. Defined, § 2148. In general, § 2155. Loss, adjustment of, how made, § 2152. Loss, adjustment of, validity of, § 2152. Loss by, how borne, § 2151. Order of, § 2149. Eules governing, apply to what sacrifices and expenses, § 2155. Things stored on deck, general average contribution in ease of, § 2154. Valuation, time of ascertaining, § 2153. Values, ascertained how, § 2153. When justifiable, § 2148. JOINT. And several, contract when presumed to be, §§ 1659, 1660. And several, obligation may be, § 1430. Authority, how construed, § 12. Authorship, rights of authors, § 981. Contract presumed to be joint and several, when, §§ 1659, 1660. Contribution between joint or joint and several obligors, § 1432. Creditor, directions by one, performance according to, effect of, § 1476. Creditor, preformance to one, § 1475. Debtor, performance hy, § 1474. Debtors, release of, § 1543. Delivery by depositary of thing owned jointly, § 1827. Deposit, delivery to survivor, § 1828. Deposit in bank. Appendix, tit. "Banking," § 16. Drawees, presentment to one, and refusal, effect of, § 3187. Employees, duty of survivor, § 1991. Guardian, death of, power of survivor, § 252. Indemnitor, liable jointly or separately with person indemnified to third persons, § 2777. Interest, change in, does not affect insurance, § 2557. Interest defined, § 683. * Obligation presumed joint when, § 1431. Obligation presumed to be point and several, when, §§ 1659, 1660. Obligation, presumption that joint how only overcome, § 1431. Obligations, generally, §§ 1430-1432. Obligor, performance by, § 1474. Owners, delivery of deposit to, how made, § 1827. Ownership defined, § 683. Owners of ditch or flume for irrigation, rights and liabilities. See Flumes. INDEX. 1143 JOINT. (Continued.) Performance according to directors of creditor discharges, § 1476. Performance to joint creditor extinguishes except where deposit by co-owners, § 1475. Promise presumed joint and several, when, §§ 1659, 1660. Service after death of joint employee, § 1991. Tenants, insurance not avoided by transfer between joint tenants, § 2557. Trustees, all must act, § 2268. Trustees, liability of, § 2239. Trustees, survivorship between, § 2288. JOINT STOCK COMPANY. Contract to relieve director from liability void, § 327. JOINT TENANTS. Husband and wife, joint tenancy between, § 161. JUDGE. Acknowledgment, what judges may take, §§ 1180, 1182, 1183. Marriage, what judges may solemnize, § 70. Superior, may consent to apprenticeship when, § 265. JUDGMENT. Action lien to obtain judgment proving instrument, § 1203. Affecting title may be recorded without acknowledgments, § 1159. Confession of, by special partner, void, § 2496. Confess, partner may not, § 2430. Effect of, in action to prove instrument, § 1204. Interest on, §§ 1917, 1918, 1920. Lien governed by Code of Civil Procedure, § 3058. Marriage, annulling, conclusiveness of, § 86. Partner may not confess, § 2430. Proving instrument entitles instrument to record, § 1204. Eecording. See Eecording. Title, for possession or, § 3375. Unrecorded instrument is void as against, § 1214. JUDICIAL PROCEEDINGS. Injunction whether granted to stay, § 3423. JUDICIAL SALE. Foreclosure of right to redeem pledge, § 3011. Warranty on, § 1777. JURY. Trial by, on apprenticeship of minor, § 267. JUSTICE OF PEACE. Acknowledgment by, certificate what to show when used out of county, § 1194. Acknowledgment, may take, § 1181. Apprenticeship, consenting to, § 265. Marriage ceremony, may solemnize, § 70. May direct calling meeting of courporation, when, § 311. JUSTICE OF SUPREME COURT. Marriage, may solemnize, § 70. JUVENILE COURT. Child may be determined to be abandoned by, § 224. 1144 INDEX. K KILLING SHEEP. By dogs, § 3341. KINDRED. See Consanguinity. Collateral line, § 1393. Degrees of, how computed, §§ 1389-1393. Degrees of, how established, § 1389. Direct line, § 1392. Half blood, inheritance by kindred of, § 1394. Half blood inherit equally, § 1394. Series of degrees of, § 1391. KNOWLEDGE. See Notice. Necessary to ratification, § 2314. Of principal not necessary to create guaranty, § 2788. LABOEER. Lien of. See Services. LACHES. Rescission, right to, barred by, § 1691. LAKE. Boundary, lake as, rights of owners, § 830. State owns land below water of, § 670. LAND. See Real Property. Defined, § 659. LAND AND BUILDING CORPORATIONS. See Building and Loan Cor- poi-ations. LAND AND WATER CORPORATIONS. See Water and Canal Corpo- rations. Dividing land, water and water rights among stockholders, § 309. LANDLORD AND TENANT. See Hiring; Lease; Rents. Action for possession without notice, where right of re-entry, § 793. Adverse proceeding, tenant to give notice of, § 1949. Agricultural land, limit on term for which may be based, § 717. Assignee of lessee, liability of, § 822. Assignee of lessee, rights against lessor and his assignor, § 823. Assignee of lessee, rights of lessor against, § 822. Assignee of lessor, rights of lessee and assignee against, § 823. Assignor of lessor, rights of lessee against, § 823. Attornment by tenant not required, when, § 1111. Attornment of tenant to stranger, effect of, § 194S. Change in terms of lease, § 827. Dwelling-house, lessor to put in fit condition, § 1941. Ejectment, tenant to give notice of, § 1949. Ejectment without notice, may be maintained, when, § 793. Fixtures. See Fixtures. Grant by landlord, right of tenant paying rent before notice, § 1111. Holding over after notice of intention to quit, treble damages, § 3344, Holding over willfully, treble rent. § 334.5. INDEX. 1145 LANDLORD AND TENANT. (Continued.) Lease by agent, statute of frauds, § 1624. Lease for life, rent recoverable after death, § 825. Lease, statute of frauds, § 1(324. Lease, terms of, may be changed by notice, § 827. Lease. See Lease. Lessees and their assignees, rights of against lessor and assignors of lessor, § 823. Lessee's assignee, liability of, § 822. Letting parts of rooms forbidden, § 1950. Lodgings, hiring for indefinite term, presumption as to, § 1944. Notice not necessary before action for possession, when, § 793. Notice of adverse proceeding, liability of tenant failing to give to landlord, § 1949. Notice of adverse proceedings, tenant to give to landlord, § 1949. Notice of change in terms of lease, § 827. ■ Notice of termination, manner of giving, § 789. Notice, re-entry on termination of, § 790. Notice, rights on termination of, § 790. Notice served on tenant must be delivered to landlord, § 1949. Notice, tenancy at will may be terminated by, § 789. Notice to quit, length of, §§ 789, 1946. Part of room, letting of, forbidden, § 1950. Possession, action lies for, without notice, when, § 793. Presumption as to renewal by remaining in possession or acceptance of rent, § 1945. Presumption as to term of hiring when no limit fixed, §§ 1943, 1944. Presumption of renewal where no notice of termination, § 1946. Presumption of renewal where no notice to quit, § 1946. Quit, failure to, after notice, treble rent, § 3344. Re-entry, action for possession lies without notice where right of reserved, § 793. Re-entry after termination of notice, § 790. Re-entry, right of can be transferred, § 1046. Re-entry, when and how to be made, §§ 791, 793. Renewal of lease by acceptance of rent, § 1945. Renewal of lease by continued possession, § 1945. Renewal presumed in absence of notice of termination, § 1946. Renewed, tenancy deemed, unless notice to quit given, § 1946. Rent, covenant for payment of, runs with land, § 1463. Bent dependent on life recoverable after death, § 825. Rent, effect on of lessor's failure to repair, § 1942. Rent on life lease, recovery of, § 824. Rent payable when, § 1947. Rent, tenant released from by letting room in parts, § 1950. Rent, term of hiring indicated by, § 1944. Rent. See Rent. Repairs, duty of lessor to make, § 1941. Repairs, effect of lessor not making, § 1942. Repairs, failure to make, vacation of premises, § 1942. Repairs, tenant, right of, to make where lessor neglects to make, § 1942. Repairs, when lessee may make, § 1942. . Repairs, when lessor to make, § 1941. Rooms, letting in part forbidden, § 1950. Summary proceedings to obtain possession, § 792. Tenantable condition, landlord must put premises in, § 1941. Tenant at will, rights of, §§819, 820. Tenancy at will, how may be terminated, § 789. 1146 INDEX. LANDLORD AND TENANT. (Continued.) Tenant entitled to whole room, § 1950. Tenant for years, rights of, §§ 819, 820. Terminated, tenancy at will may be, by notice, § 789. Termination of tenancy at will, notice, §§ 789, 790. Term of hiring indicated by rent, § 1944. Term of hiring when no limit fixed, §§ 1943,1944. Treble rent for failure to quit after notice, § 3344. Treble rent for holding over, § 334.5. Vacation by tenant for want of repairs, § 1942. LAPSED. Devise, § 1343. Legacy, § 1343. LAPSE OF TIME. See Limitation of Actions. Bottomry lien, extinguishes, § 3027. Defined, § 125. Divorce denied because of, § 111. Lien, extinguishes, § 2911. Nuisance, does not legalize, § 3490. Partnership dissolved by, § 2450. Presumptions arising from, rebutting, § 126. Proposal to contract revoked by, § 1587. LATERAL SUPPORT. Easement of, § 801. Excavations, notice of, § 832. Excavations, right to make, § 832. Right of, § 832. Mutual obligations to coterminous owners, § 841. LAUNDRY. Lien of proprietor for services, § 3051. LAW. Foreign, mistake of, is mistake of fact, § 1579. Fraud a question of fact and not of, § 3442. Mistake may be of law or fact, § 1576. Mistake of, what constitutes, § 1578. Obligations imposed by, §§ 1708-1717. Transfer of property by operation of, § 1091. "\A'aiver of, right of, § 3513. LEARNING. See Colleges and Seminaries of Learning. LEASE. See Hiring; Landlord and Tenant. Agent's authority to execute, to be written, when, § 1624. Agricultural land, of, not over fifteen years, § 717. Building and loan association may make, § 640. Change in terms of, § 827. City lots, of, not over fifty years, § 718. Grantee or devisee, remedies for breach of terms, waste, etc. § 821. Horticultural land, of not over fifteen years, § 717. Incompetent, limit of term of lease of, § 718. Infant, limit of term of lease of, § 718. Lessees and their assignees, rights of, § 823. Lessees, assignees, liability of, § 822. Letting part of rooms forbidden, § 1950. Life, rent, how recoverable, § 824. Limit of term of lease of agricultural land, § 717. INDEX. 1147 LEASE. (Continued.) Limit of term of lease of city lot, § 718. Limit of term of lease of minor or incompetent person, § 718. Limit of term of lease of property of municipality, §§ 717, 718. Limit of term of lease of agricultural land owned by city, § 717. Limit of term of lease of sewage of city, § 718. Limit of term of lease of sewer farm owned by city, § 718. Municipality, limit of term of lease of property of, §§ 717, 718. Notice of change in terms of, § 827. Eecording, want of, rights of bona fide purchaser, § 1214. Renewal by continued possession, § 1945. Eents. See Eents. Statute of frauds, agent, authority to lease to be written, when, § 1624. Statute of frauds, where over one year, § 1624. Telegraph or telephone corporation, property of, lease of, § 540. Terms of may be changed by notice, § 827. Trust, express, to lease realty, § 857. LEGACY. See Wills. Gift causa mortis, how far treated as, § 1153. LEGISLATIVE ACTS. Municipal corporation, by not enjoined, § 3423. LEGISLATUBE. Amendment or repeal of laws relating to corporations, § 384. Dissolution of corporation by, § 384. Examination by, into affairs of corporation, § 383. Regulation of freights, § 465. LEGITIMACY. See Bastard. Acknowledgment of illegitimate child, § 230. Acknowledgment of illegitimate child and adoption into family, effect of, § 230. Acknowledgment of illegitimate child and receiving into family, right of inheritance on, § 1387. Acknowledgment of illegitimate child, inheritance from child in case of, § 1388. Adoption of illegitimate child, consent of mother, § 224. Adultery of husband, effect on children of divorce for, § 144. Adultery of wife, divorce for, legitimacy of children, § 145. Children legitimate where marriage annulled or divorce granted, § 1387. Father, court may make and enforce order for maintenance of il- legitimate child by, § 196a. Father as well as mother of illegitimate child liable for maintenance, § 196a. Guardian or mother of illegitimate may sue father for maintenance, § 196a. Heir to one acknowledging himself to be father, § 1387. Illegitimate child, how legitimated, § 230. Kindred of parents, when only illegitimate child inherits from, § 1187. Mother alone can bind illegitimate child as apprentice, § 265. Mother, heir to, illegitimate child is, § 1387. Mother marrying, right to bind illegitimate child as apprentice, §265. Mother may appoint guardian of illegitimate child, § 241. Motlier, right of inheritance from, § 1387. Nullity of marriage does not affect legitimacy of children, § 84. 1148 INDEX. LEGITIMACY. (Continuea.) Of children born after dissolution of marriage, § 194. Of children born in wedlock, § 193. Of children not affected by annulment of marriage, §§ S4, 1387. Of children, who may dispute, § 195. Presumption of, § 195. Succession to estate where child legitimated by marriage, § 1388. Succession to estate where child not legitimated, § 1388. LESSOR AND LESSEE. See Landlord and Tenant. LETTER OF ATTORNEY. See Power of Attorney. LETTERS. Containing valuable carrier's liability, § 2177. Property in, § 985. Bight to publish, § 985. When deemed to be continuing guaranty, § 2864. LETTERS OF CREDIT. Construction of, § 2866. Continuing guaranty, may be, § 2864. Continuing guaranty, when are, § 2864. Credit given must agree with terms of, § 2866. Defined, § 2858. General, authority to pav under, § 2862. General, defined, § 2861. " General, extent of, § 2863. General, nature of, § 2862. General, rights of one paying under, § 2862. General, several persons may successively give credit, § 2863. Is general or special, § 2860. Liability of writer, § 2860. License from superintendent of banks necessary before Issuance of. Appendix, tit. "Banking," § 13. License to issue-, fee for. Appendix, tit. "Banking," § 13. May be addressed to se^•eral persons in succession, § 2859. Not exhausted by credit to amount limited, when, § 2864. Notice to writer of credit given, whether necessary, § 2865. Special, defined, § 2861. What persons, associations or corporations may issue. Appendix. tit. "Banking," § 13". LETTERS PATENT. Acknowledgment of, not necessary to recording, § 1160. Lost, recording certified copy and effect of, § 1160. LEX DOMICILII. Governs personalty, § 946. LIBEL. Defamation, § 44. Defined, § 45. Malice, when not inferred, § 48. Privileged communications, defined and classified, § 47. Right to protection from, § 43. LICENSE. Fee for license to issue letters of credit. Appendix, tit, "Banking," § 13. Foreign building and loan corporation, license required of, § 646. INDEX. 1149 LICENSE. (Continued.) Marriage, §§ 69-79. Ships, of, § 966. Street-cars, license on, § 508. To take tollS; § 528. LIEN. Accessory to act secured, § 2909. Agistor's, for caring for a pasturing stock, § 3051. Alienation, property liable in inverse order of, § 2899. Apportionment of, § 2912. As security for performance of obligation not in existence, § 2884. Assessment company, indebtedness of, § 453g. Attachment, lien of officer, § 3057. Automobiles, liens of, keepers of garages for services, § 3051. Banker's, § 3054. Boarding-house keepers, § 1861. Bottomry, generally, §§ 3017-3029. See Bottomry. Bottomry, priority, § 2897. Bulls used for propagation, liens for services and how enforced, §§ 3062-3064. Carrier's, for freightage, § 2144. Carriers of good,s, of. See Carriers of Goods. Carrier's, on baggage, for fare, § 2191. Carrier's ship's manager may not g'ive up, § 2389. Claim not due, no lien for, § 2882. Compensation, holder not entitled to for trouble or expense, § 2892. Confined to original obligation, § 2891. Contract, creation by, as security for obligation not in existence, § 2884. Contract for forfeiture of property void, § 2889. Contract in restraint of redemption void, § 2889. Contract, may be created by, § 2881. * Contracts subject to provisions relating to, in general, § 2877. Conversion by lienor extinguishes, § 2910. Conversion, damages of lienor, § 3338. Created by contract or operation of law, § 2881. Defined, § 2872. Delivery, want or change of possession, effect of, § 3440. Depositary, code provisions governing, § 1856. Depositary has, § 1856.. Depositary, of. See Depositary. Depositary, sale of property for charges, right of, § 1857. Encumbrance includes, § 1114. Execution, lien of officer, § 3057. Extent of, § 2891. Extinguished by limitation, § 2911. Extinguished by restoration of property, § 2913. Extinguished by sale or conversion, § 2910. Extinguished in like manner with any other accessory obligation, § 2909. Extinguished, not bv partial performance. § 2912. Factor's, § 3053. Forfeiture of property, contract for, void, § 2889. Fraudulent conveyance, delivery, § 3440. Future interest, on, may be created, § 2883. Future interest, on, when attaches, § 2883. Future obligation, as security for, § 2884. 1150 INDEX. LIEN. (Continued.) Future obligation, may be created by contract to secure perform- ance of, § 2884. Garages, liens of owner of for services, § 3051. General, defined, § 2874. General or special, liens are, § 2873. Growing crop, lien of mortgage on, continuance after severance, § 2972. Homestead, liability for, § 1241. Hotel-keeper's § 1861. Inferior lienor redeeming, subrogation of, § 2904. Inferior lienor, right of redemption of, § 2904. Innkeeper's § 1861. Is general or special, § 2873. Jacks used for propagation, lien of owner and how enforced, §§ 3062-3064. Judgment, covered by Code of Civil Procedure, § 3058. Laborer's § 3052. Laborers on thrashing-machines, liens of, § 3061. Laundry, for, § 3051. Limitation, lien extinguished by, when, § 2911. Livery-stable keeper, of, § 3051. Live-stock, for keeping, § 3051. Lodging-house keepers, § 1861. Loggers. See Services. Mates, § 3056. Mechanic's regulated by Code of Civil Procedure, § 3059. Mining partner, lien of, § 2514. Mining partnership, purchaser of interest in, takes subject to, § 2517. Mining partnership, purchaser of interest in, takes with notice of, § 2518. Mortgage for price, priority over, § 2898. Mortgage, lien of. See Mortgages. Mortgage subject to law of, § 2877. Officer's for levying writ, § 3057. Order of resort to different funds, § 2899. Order of resort, where property transferred at various times, § 2899. Operation of law, may be created by, § 2881. Operation of law, time when arises, § 2882. Partner's on shares of copartner for payment of firm debts, § 2405. Part performance does not extinguish, § 2912. Pasturing stock, for, § 3051. Performance of other obligation than that secured, lienor not en- titled to, § 2891. Personal obligation to perform not implied on creation of, § 2890. Personal property, lien on, for services or repairs, § 3051. Personalty, on, for services performed. See Service. Pledge, lienor may, § 2990. Pledge, subject to law of, § 2877. Pledge. See Pledge. Possession, change of, necessary as against creditors, § 3440. Possession, lien dependent on, § 3051. Prior, right of holder of special lien paying, § 2876. Priority of bottomry, §§ 3028, 3029. Priority of liens against ship, § 3028. Priority of purchase money mortgage, § 2898. Priority, order of, § 2897. Propagation, lien by owner of animal used for, claim of, § 3063. INDEX. 1151 LIEN. (Continued.) Propagation, lien by owner of animal used for, enforcement of, § 3064. Propagation, owner of animal used for has lien, § 3062, Property not in existence, may be created on, § 2883. Property not in existence, wlien attaches, § 2883. Purchaser of interest in mining claim takes subject to, §§ 2517, 2518. Eecording, duty as to, § 1164. Eedemption, contract in restraint of void, § 2889. Eedemption, how made, § 2905. Eedemption, inferior lienor redeeming, subrogation of, § 2904, Eedemption, inferior lienor, rights of as to, § 2904. Eedemption, subrogation of person redeeming, § 2903. Eedemption, when may be made, § 2903. Eedemption, who entitled to, §§ 2903, 2904. Eespondentia subject to law of, §§ 2877, 2897. Eespondentia. See Eespondentia. Eepairs, for. See Service. Eestoration of property subject to, to owner, effect of, § 2913. Eight of redemption of property subject to, § 2903. Sale extinguishes, § 2910. Sale of personalty to enforce, § 3052. Salvage, lien for, § 2079. Seamen's, § 3056. Seller of personalty, lien is dependent on possession, § 3049. Seller of personalty, lien of for price, § 3049. Seller of personalty, lien of, how enforced, § 3048. Services, for, § 3051. See Service. Sheriff's, § 3057. Ship, debts when liens against, § 3060. Ship-master's, § 3055. Special, defined, § 2875. Special, mortgage is, unless otherwise agreed, § 2923. Special or general, is, § 2873. Special partner, of, when void, § 2496. Special, right of holder who pays prior lien, § 2876. Stallions used for propagation, lien in favor of owner, and how en- forced, §§ 3062-3064. Stoppage in transit, §§ 3076-3080. Storage, for, § 1856. Subrogation of inferior lienor redeeming, § 2904. Subrogation of person redeeming property subject to, § 2903. Thrashing-machine, lien of laborers on. See Services. Title not transferred by, § 2888. Title, parties cannot contract that lien pass, § 2888. Vendee's, § 3050. Vendor of realty, lien of, §§ 3046-3049. Vendor's valid against whom, § 3048. Vendor's waiver of by transfer of contract, § 3047. Veterinary hospital proprietors have, for services, § 3051. Veterinary hospital proprietors, lien of, is dependent on possession, § 305i. Veterinary hospital proprietors, sale for, manner of and disposition of proceeds, § 3052. Veterinary surgeons have liens for services, § 3051. Veterinary surgeons, lien dependent on possession, § 3051. Veterinary surgeons, sale for, manner of and disposition of proceeds, § 3052. Void, contract for forfeiture of property or in restraint of redemp- tion, § 2889. 1152 INDEX. LIFE ESTATES. See Estates for Life. LIFE INSURANCE. See Insurance; Insurance Corporations; Mutual Life Health, Accident, and Annuity Insurance on Assessment Plan. Mutual benefit and life associations. See Mutual Benefit and Life Associations. LIFE INSURANCE COMPANIES. See Insurance Corporation; Mutual Benefit and Life Associations; Mutual Life, Health, Accident, • and Annuity Insurance on Assessment Plan. LIFE TENANT. See Estate for Life. LIGHT. Easement of, § SOI. LIGHTING CORPORATIONS. See Electric Companies; Gas Companies. Provisions of code relating to repealed, §§ 629, 630, 630a, 631, 632. LIMITATION OF ACTIONS. Action to show property was community, § 164. Apprentice, action by for breach of contract, § 273. Bank, claim against, within what time to be brought. Appendix, tit. "Banking," § 136. Conveyance by heir valid unless will i)roved within four years, § 1364. Corporation to organize within one year, § 358. Directors, action for creating excessive debt, § 309. Directors, action for reducing or withdrawing capital stock, § 309. Directors, limitation of action against, § 309. Director's personal liabilitv, § 309. Divorce, §§ 124-127. Divorce is defeated by, § 111. For annulment of marriage, § 83. In grant, construction of, § 1067. Lien extinguished by, when, § 2911. Nuisance, time does not legalize, § 3490. Nuncupative will, proof of, § 1290. Partner in liquidixtion cannot revive debt, § 2462. Prescription, title by, what is, § 1007. Recovery of stock sold for delinquent assessments, § 347. Stock sold for assessment, § 347. LIMITATION OF LIABILITY. By carrier, §§ 2174-217G. LIMITED INTEREST. Defined, § 692. LINEAL CONSANGUINITY. See Consanguinity. LINEAL WARRANTIES. Abolished, § 1115. Liability of heir or devisee under, § 1115. LIQUIDATED DAMAGES. Not bar to specific performance, § 3389. Validity of contract fixing damages in advance, §§ 1670, 1671. * LITERARY CORPORATIONS. Elections, no cumulative voting unless by-laws provide, § 307. Power to take by will, § 1275. INDEX. 1153 LITERARY PROPERTY. Assignable, is, § 9S2. Author has exclusive ownership, § 980. Joint production, how owned, § 981. Letters, ownershiji of, § 985. Letters, right to publish, § 985. Ownership of, how long continues, § 980. Publication of, effect of, § 983. Subsequent author of the same thing, rights of, § 984. There may be ownership in compositions, § 655. LIVERY-STABLE. Lien on animals kept, § 3051. LIVE-STOCK. See Animals. Combinations to obstruct sale of, prevented. Appendix, tit. "Ani- mals." Life, health and accident insurance on. Appendix, tit. "Insurance." Lien for keeping, § 3051. LOAN. See Building and Loan Associations; Deposit; Hiring; Mort- gages; Savings and Loan Associations. Animal, care required of borrower of, § 1887. Borrower not to part with thing to third person, § 1891. Care required of borrower, §§ 1886, 1887, 1888. Defects, lender liable for injuries from, § 1893. Defined, § 1884. Demand, when thing returnable without, § 1895. Exchange, expenses, borrower to bear, § 1904. Exchange, for, code sections applicable to, § 1906. Exchange, for, defined, § 1902. Exchange, for, lender cannot modify contract, § 1905. Exchange, for, title to property passes, § 1904. Exchange, increase of, to whom belongs, § 1904. Exchange or use, for, statute governing when option as to, § 1903. Expenses, when borrower to bear, §§ 1892, 1904. Expenses, when lender to bear, § 1892. • Hiring, §§ 1925-1959. See Hiring. Increase of belongs to lender, § 1885. Injuries, when borrower to repair, § 1889. Interest on, §§ 1914-1920. Money, of, defined, § 1912. Money, of, interest, §§ 1914-1920. See Interest. Money, of, presumed to be on interest, § 1914. Money, of, to be repaid in current money, § 1913. Mortgage insurance corporations, loans by. See Mortgage Insur- ance Corporations. Particular use, for, § 1930. Place of return, § 1896. Presumed to be on interest, § 1914. Reloaning forbidden, § 1891. Repairs, borrower to make, when, § 1889. Returnable without demand, when. § 1895. Return, indemnity to borrower, § 1894. Return, lender requiring, to indemnify borrower when, § 1894. Return, owner may require at any time, § 1894. Return, place of, § 1896. Ship-master's authority to borrow money, § 2374. Ship's manager may not borrow money, § 2389. Civ. Code — 73 1154 INDEX. LOAN. (Continued.) Skill required of borrower, § 18S8. Title of property loaned does not pass, § 18S5. Use, for mere, code sections governing, § 1912. Use of thing loaned, § 1890. LOAN ASSOCIATIONS. See Building and Loans Associations. LOCATION. Alining claim, of. See Mines and Mining. LODE CLAIMS. See Mines and Mining. LODGES. Cori^orations to erect, directors, from whom elected, § 290. Corporations to erect, directors, increase or decrease and proceedings on, § 290. Corporations to erect, management and control of, § 305. Corporations to erect, number of directors, § 290. LODGING-HOUSE KEEPERS. See Innkeepers. Charges, for what services only can be made, § 1863. Charges, improper, damages for, § 1863. Charges, posting statement of, § 1863. Depositaries for hire, liability is that of, § 1859. Exemption from liability where safe kept and notice posted, § 1860. Liability of, §§ 1859, 1860. Lien, have on baggage for unpaid charges, § 1861. Lien on baggage, how enforced, § 1S61. Lien on baggage, rights where property not baggage of guest, § 1861. Lien on baggage, sale of property for proceedings on and disposition of proceeds, § 1861. Lieu, sale of baggage for, proceedings bar action against, § 1861. Limitation of liability for valuables where receipt not given, § 1860. Luggage, limitation of liability for, § 1859. Rent payable when, § 1947. Sale of unclaimed baggage, procedure for, and disposition of pro- ceeds, § 1862. Sale of unclaimed baggage, right of, § 1862. Term presumed hired for, § 1944. LOGGERS. Lien of. See Services. LOST INSTRUMENT. See Lost Property. Certificate of stock, action for new certificate, § 328. Certificate of stock, judgment for new certificate, protection of com- pany, § 328. Negotiable instrument, action to re-establish, indemnity, § 3415. Payment of lost negotiable instrument, indemnitj-, § 3137. Recording certified copies of lost letters patent, § 1160. Re-establishment and re-execution of, § 3415. LOST PROPERTY. See Finder; Lost Instrument. Abandoned property, statute does not apply to, § 1872. Animals, persons saving, duty of, § 1865. Appraisement of, § 1865. Claimant, proof may be required of, before surrender, § 1866. Finder, compensation for expenses, entitled to, § 1867. Finder, duty of, where owner not known, § 1865. Finder, exoneration of owner by surrender of property to, § 1871. INDEX. 1155 LOST PROPERTY. (Continued.) Finder, liable as depositary for hire, § 1864. Finder may put property on storage, § 1868. Finder not entitled to reward if owner not notified, § 1865. Finder not notifying owner, liability, § 1865. Finder not to charge except tor expenses, § 1865. Finder, obligations of, § 1864. Finder, penalty for failure to comply with statute or to surrender property, § 1871. Finder, publication of list by, § 1871. Finder, reward of, §§ 1865, 1867. Finder, title vests in after what time, § 1871. Finder, title when vests in, § 1871. Finder to notify owner, §§ 1864, 1865. Finder to restore property, §§ 1864, 1865. Lists of, preparation and filling of, § 1865. Sale of, manner of, § 1870. Sale of, when authorized, § 1869. LOTTERY. Insurance of, not authorized, § 2532. LUGGAGE. See Baggage. LUNATIC. See Insane Person. M MAIL CARRIERS. To ride free on street railways. Appendix, tit. "Railroads." MAINTENANCE. See Divorce; Parent and Child. Action for, by wife without divorce, § 137. MAJORITY. Adults, who are, § 27. Age of, § 25. Attainment of ward to, terminating guardianship, §§ 254, 255. Attainment to, ends parental authority, § 204. Co-trustees, all must act, § 2268. Joint authority, majority may exercise, § 12. Mining partnership, majority control, § 2520. Of partners, decision of, binds, § 2428. MALICE. See Libel; Slander. Exemplary damages for, § 3294. Interest as damages in ease of, § 3288. Privileged communciation, malice not inferred from what, § 48. MANUFACTURE. Agreement to, need not be in writing, § 1740. Implied warranty on sale of manufactured article, §§ 1769, 1770. Warranty on manufacture of article for particular purpose, § 1768. MAP. Of wagon-road, § 513. Railroad, to be filed, § 466. MARINE CARRIERS. Defined, § 2087. Delay, not to, § 2117. Delivery of freight, manner of, § 2119. 1156 INDEX. MARINE CARRIERS. (Continued.) Deviation from voyage, improper, not to make, § 2117. Fire, not liable for loss by, § 2197. General average. See General Average. General duties of, § 2117. Governed by acts of Congress, § 2088. Jettison. See Jettison. Liable for losses except from perils of the sea, § 2197. Liability governed by acts of Congress, § 2197. Perils of sea are what, § 2199. Perils of sea, not liable for loss by, § 2197. Eegulated by acts of Congress, § 2198. Stowage, freight when only can be stowed on deck, § 2117. Who are, § 2087. MARINE INSURANCE. See Insurance; Insurance Corporation. MARITIME LAW. See Shipping. MARK. As signature, § 14. Included in signature or subscription, § 14. Signature by, how made, § 14. Signature by, two witnesses necessary, § 14. MARRIAGE. Absence of former spouse, marriage during, effect of, § 61. Action to have marriage declared incestuous or void, S 80. Action to have validity of marriage declared, § 78. Age at which marriage may be contracted, § 56. Age, want of, annulment, § 82. Agreement upon consideration of, to be written, § 1624. Annulment of, conclusiveness of judgment of, § 86. Annulment of, custody of children, § 85. Annulment of, does not affect legitimacy of children, § 84. Annulment of, grounds for, § 82. Annulment of, limitation of actions for, § 83. Annulment of, maintenance and education of children, § 85. Annulment of, time within which to bring action for, § 83. Annulment of, who may sue for, § 83. Authentication, necessity of, § 68. Breach of promise of, damages, § 3319. Breach of promise of, want of chastity justifies, § 62. Celebration, necessity and manner of, § 68. Celebration, non-compliance with statute by third persons, § 68. Certificate of, delivery of copy to parties, §§ 74, 79. Certificate of, filing, §§ 74, 79. Certificate of marriage without license, § 79. Certificate of, what to show, § 73. Certificate of registry of marriage, filing with county recorder, § 69a. Certificate of registry of marriage, j^arties to obtain, § 69a. Certificate of registry of marriage, to be filled out in presence of county clerk, § 69a. Certificate of registry of marriage, to be presented to person solem- nizing, § 69a. Certificate of registry of marriage, what to contain, § 69a. Certificate, person solemnizing to make, § 73. Chastity, want of, effect on promise to marry, § 62. Children of annulled marriage, custody of, § 85. Children of annulled marriage, maintenance and education, § 85. INDEX. 1157 MARRIAGE. (Coutiuiied.) Conditious restraining, effect of, § 710. Conflict of laws relating to, § 63. Consent, age of, § 56. Consent alone will not constitute, § 55. Consent, filing of, § 69. Consent, § how proved, § 57. Consent, marriage under age of, annulment, § 82. Consent, minors when may, § 56. Consent obtained by force, annulment, § 82. Consent obtained by fraud, annulment, § 82. Consent of parent or guardian, necessity of, § 69. Consent, stating facts of, in the license, § 69. Contracted out of state, validity of, § 63. Contract in restraint of, other than infant, void, § 1676. Declaration of, acknowledging and recording, § 77. Declaration of, action to determine and declare valid, § 78. Declaration of, by action in court, § 78. Declaration of, by members of particular denomination, § 79a. Declaration of, penalty for failure to record, § 79a. Declaration of, recording, §§ 77, 79a. Declaration of, right to make, § 76. Declaration of, subscription and attestation of, § 76. Declaration of, to be acknowledged and recorded, §§ 77, 79a. Declaration of, to contain what, § 76. Declaration of, when may be made, §§ 76, 79a. Defined, § 55. Denial of, action to determine and declare valid, § 78. Dissolution of. See Divorce. Dissolved how, generally, § 90. Divorce. See Divorce. Drugs, license not to issue to person under influence of, § 69. During life of former spouse, void when, § 61. Examination of person solemnizing, § 72. Examination of applicant for license, § 69. Force, consent obtained by, annulment, § 82. Foreign, validity of, § 63. Former husband or wife living, annulment, § 82. Former husband or wife living, effect of, §§ 61, 82. Fraud, consent obtained by, annulment, § 82. Guardian, powers of, terminated by, § 255. Impotence, annulment of marriage, § 82. Incestuous, judicial declaration of, § 80. Incestuous, what is, and effect of, § 59. Infant, consent of parent or guardian when necessary, § 69. Infants, age at which may marry, § 56. Infant's ends parental authority, § 204. Insane or imbecile person, license not to issue to, § 69. Insane person, marriage of, annulment, § 82. Interlocutory decree of divorce, void if contracted within one year from entry of, § 61. Intoxicants, license not to issue to persons under influence of, § 69. Legitimacy of children born in wedlock presumed, § 193. Legitimacy of children not affected by annulment of marriage, § 84. Legitimate, children are, where divorce granted, § 1387. Legitimate, children of annulled marriage are, § 1387. Legitimized, child born before wedlock is, by marriage of parents, §215. License, certified copy of, § 74. 1158 INDEX. MARRIAGE. (Continued.) License, consent, filing of, § 69. License, consent of parent or guardian, where parties under age, § 69. License, consent, stating facts on license, § 69. License, doubts as to correctness of statements in, powers and duties, § 72. License, drugs, not to issue to persons under influence of, § 69. License, examination of male applicant for, § 69. License, filing, § 74. License from county clerk of county where marriage celebrated, § 69. License, how obtained. § 69. License, infant, consent of parent or guardian necessary, § 69. License, infant, examination of parties, § 69. License, intoxicants, not to issue to persons under influence of, § 69. License, marriage without, § 79. License, marriage without, certificate of, § 79 License, marriage without, record of, § 79. License, minister may marry without, when, § 79. License, necessity of §§ 68, 69, 72, 79, 79a. License, not to issue for marriage between white person and negro or mongolian, § 69. License not to issue to what persons, § 69. License, oath and examination of parties, § 69. License, production of, on solemnization, § 72. License, requisites of, § 69. License, what to show, § 69. License, who may be married without, § 79. Minors, age at which may marry, § 56. Mongolians and whites, license not to issue, § 69. Mongolians and whites, of, effect of, § 69. Mulattoes and whites, license not to issue, § 69. Mulattoes and whites void, §§ 60, 69. Negroes and whites, license not to issue, § 69. Negroes and whites, void, §§ 60, 69. Nullification of, legitimacy of children not affected, § 84. Out of state, validity of, § 63. Promise of, release from by unchastity, § 62. Promise to marry need not be written, § 1624. Proving, mode of, § 57. Eeeording of, § 68. Eecord of marriage without license, § 79. Eeligious sect, declaration of marriage by members of. § 79a. Religious sect, marriage of members of, manner of, § 79a. Remarriage, where former spouse reputed dead, § 61. Remarriage, where parties not divorced, effect of, § 61. Remarriage, within one jear from interlocutory decree in divorce, void, § 61. Restraint of, contracts in, other than of minor, void, § 1676. Second, during lifetime of other spouse, effect of, § 61. Second, effect of where spouse not heard of for five years, §61. Second, void, unless prior marriage annulled, § 61. Second, within one vear from interlocutorv decree in divorce, void, § 61. Settlements. See Husband and Wife; Marriage Settlements. Solemnization, examination of candidates, § 72. Solemnization, form of, §§ 68, 71. Solemnization, how proved, § 57. Solemnization, license, correctness of statements, duty and power regarding, § 72. INDEX. 1159 MARRIAGE. (Contiuiied.) Soleraniation, license to be presented, § 72. Solemnization, license who may be married without, § 79. Solemnization, members of particular religious denomination, § IdVa. Solemnization, necessary, §§ 55, 68. Solemnization, non-compliance with statute by third person, § 68. Solemnization, substantial requisites, § 72. Solemnization, what parties are to declare on, § 71. Solemnized, may be by whom, § 70. Solemnized, how, § 68. Statute of frauds, agreement upon consideration of marriage, § 1624. Statute of frauds, promise to marry, § 1624. Unchastity as ground for release from promise of, § 62. Validity of, action to have determined and declared by court, § 78. Void, during life of former spouse, when is, § 61. Void, if contracted within year after entry of decree of divorce, § 61. Void, judicial declaration of, § 80. Voidable, if consent obtained by fraud or force, § 58. Voidable, if either physically incapable, § 58. Ward's supersedes guardian appointed by ward, §§ 254, 255. What constitutes, § 55. Whites, marriage of with negroes, mongolians or mulattoes void, § 60. Who may perform, § 70. Will, effect of marriage on, §§ 1298-1300. Written, agreement upon consideration of marriage to be, § 1624. Written, promise to marry need not be, § 1624. MARRIAGE SETTLEMENT. Effect of record or non-recording, § 180. Executed how, § 178. How proved, § 178. Settlements, minors may make, § 181. Settlement to be acknowledged and recorded, §§ 178, 179. MARRIED WOMAN. See Husband and Wife. Acknowledgment by, how made, §§ 1093, 1187. Acknowledgment of deed by, § 1093. Acknowledgments, defective, act curing, § 1207. Adoption by. See Adoption. Consent of wife, agreement to procure, not enforceable, § 3890. Conveyance by, how executed, § 1093. Conveyance of, effect of, §§ 1093, 1187. Deposits by in bank, how held and paid. Appendix, tit. "Banking," §16. Dividends on stock payable to, § 325. Homestead stock may be owned by, § 561. Husband, liability of for torts of wife, § 171a. Limitation of action to show property conveyed by, was community, § 164. May be sued alone for civil injuries, § 171a. May draw dividends in savings and loan society, § 575. May make and withdraw deposits in savings and loan corporation, § 575. Power of attorney, acknowledgment of, § 1094. Power of attorney, may make and revoke, § 1094. Property rights. See Husband and Wife. Proxy given by, § 325. Savings and loan stock may be owned by, § 575. Savings banks, married woman may be depositor and draw divi- dends, § 575. 1160 INDEX. MARRIED WOMAN. (Continued.) Signature of husband not necessary on transfer of stock,§ 325. Signature of husband not necessary where proxy given, § 325. Stock in name of, dividends to whom paid, § 325. Stock in name of, how transferred, § 325. Stock in name of, proxy, § 325. Stockholder, married woman as, has same rights as if sole, § 325. Transfer of stock by, § 325. Will, how executed and proved, § 1273. Will, may alter or revoke as if unmarried, § 1272. Will, may dispose of separate estate by, § 1273. MARSHALING ASSETS. In case of liens, § 2899. Order of resort to different funds, § 2899. When may be required, § 3433. MASCULINE. Includes feminine and neuter, § 11. MASTER. Ship's. See Shipping. MASTER AND APPRENTICE. See Apprenticeship. MASTER AND SERVANT. Abduction of servant forbidden, § 49. Account, employee's duty to, § 1986. Accounting by servant, § 2014. Act giving lien to laborers in logging camps, § 3065, Legislation. Act giving lien for laborers on thrashing-machines, § 3061, Legisla- tion. Apprenticeship. See Apprenticeship. Assault, right to protect against, § 50. Assignment of wages by employee of corjjoration, act relative to. Appendix, tit. "Corporations." Assigment of wages, provision relating to, § 955. Assumed risk, knowledge by injured servant as a bar, § 1970. Assumption of risks by servant, § 1970. Care required of employee for his own benefit, § 1979. Care required of employees for reward, § 1978. Care required of gratuitous employee, § 1975. Compensation, act relating to assignment of wages by employees of corporation. Appendix, tit. "Corporations." Compensation, acts providing for manner of by corporation. Appen- dix, tit. "Corporations." Compensation by employer's successor, § 1998. Compensation for service without employment, § 2078. Compensation, master only liable for services properly rendered, § 1990. Compensation of employee continuing in service after death, § 1998. Compensation, employee dismissed for cause entitled to up to time of dismissal, § 2002. Compensation of employee leaving for cause, § 2003. Compensation, presumption as to, §§ 1980, 2011. Compensation, presumption as to rate of wages, § 2011. Compensation, presumption as to where emplovment continued be- yond term, § 1980. Confidential emplovnients, obligations defined bv title on trusts, § 1992. INDEX. 1161 MASTER AND SERVANT. (Continued.) Confidential employments. See Trusts. Continuance of service after death or incapacity of employer, § 1998, Contract of employment defined, § 1965. Contract of service limited to two years, § 198U. Contracts vpaiving liability for negligence, void, § 1970. Contributory negligence, knowledge by injured servant as a bar, § 1970. Contributory negligence, rules of, apply between, § 1970. Death of employer, compensation of employee continuing in service after, § 1998. Death of employer, duty to continue in employemnt, § 1998. Death of employer, terminates employment, !?§ 1996, 1997, 1998. Death of joint employee, duties of survivor, § 1991. Definition of contract of employment, § 1965. Definition of employment for specified term, § 1999. Definition of servant, § 2009. Degree of skill required of employee, § 1983. Delivery without demand, employee not bound to make, when, § 1987. Demand, emi^loyee not bound to send without demand, § 1987. Diligence required of employee for his own beenfit; § 1979. Diligence required of employee for reward, § 1978. Directions of master, duty of employee to obey, § 1981. Discharge of servant, grounds for, §§ 2000, 2015. Dismissal for cause, compensation, § 2002. Dismissal, grounds for, §§ 2000, 2015. Dismissal. See post. Termination, this title. Domestic servant, entire time of belongs to employer, § 2013. Duties of employee for his own benefit, § 1979. Duties of employee for reward, § 1978. Duties of gratuitous emplo.yee. §§ 1975-1977. Duty as regards sending things from distance, §§ 1987, 2014. Employee not bound to deliver without demand, § 1987. Employee to comply with directions, § 1981. Employee to obey, § 1981. Employment, contract of, defined, § 1965. Enticement of servant forbidden, § 49. Everything acquired by employee belongs to employer, § 1985. Expenses and losses, employer must indemnitfy employee for, § 1969. Fault of servant, termination of employment for, § 2001. Fellow-servant, master's liability for, § 1970. Fellow-servants, who are not, § 1970. Gratuitous employee, duties and liabilities of, §§ 1975-1977. Hiring, renewal of, presumption as to, § 2012. Hiring, term of, presumption as to, §§ 2010, 2011. Incapacity of employee, discharge for, § 2000. Incapacity of employer does not terminate relation, when, §1998. Incapacity of employer, terminates relation, § 1996. Incapacity of servant, termination of employment for, § 1997. Indemnify employee, when employer must, § 1969. '*' Indemnify employee, when employer need not, § 1970. Indemnity against servants' acts, contract of, § 2774. Injury to servant by third person, forbidden, § 49. Injury to servant from master's own negligence, master liable, § 1971. Injury to servant, master liable for, when, § 1969. Injury to servant, master when not liable, § 1970. Joint employees, duty of survivor, § 1991. Liability of servant for obeying unlawful directions, § 1969. Liable, master is for losses from his own negligence, § 1971. 1162 INDEX. MASTER AND SERVANT. (Continued.) Liable, master is for what losses or injuries, § 1969. Lien for services. See Services. Lien of loggers and laborers upon logs cut, § 3065. Appendix, tit. "Liens." Lunch hour for laborers in mills and logging camps. See Appendix, tit. "Master and Servant." Master's liability to servant, in general, § 1969. Miners, act providing- for protection of. Appendix, tit. "Mines and Mining." Misconduct as ground for discharge, § 2015. Mutual right of protection, §§ 49, 50. Neglect of employee, discharge for, § 2000. Negligence, care required of emploj'ee for his own benefit, § 1979. Negligence, care required of employee for reward, § 1978. Negligence, care required of gratuitous employee, § 1975. Negligence, contracts waiving liability for, void, § 1970. Negligence, death of employee, but one action lies, § 1970. Negligence, death of employee, personal representative may sue for, § 1970. Negligence, death of employee, personal representative may for waose benefit, § 1970. Negligence in employment of co-servants, liability of master, § 1970. Negligence, in performance of duty owed by master, § 1970. Negligence, knowledge by servant of unsafe appliances as a bar, §1970. Negligence, liability of gratuitous employee for, § 1975. Negligence, master not bound to indemnify for losses from ordinary risks, § 1970. Negligence of co-servant, master not liable, § 1970. Negligence of employee, liability for, to employer, § 1990. Negligence of master, liability for, § 1971. Notice, employee to give of thing received for master, § 1986. Obey, employee's duty to, § 1981. Ordinary risks, servant assumes, § 1970. Power of attorney, gratuitious employee accepting, duties of, § 1977. Preference to employer's interest, § 1988. Presumption as to compensation of emploj^ee, §§ 1980, 2011. Presumption as to removal and wages where relation continued be- yond term, § 2012. Presumption as to term of hiring, §§ 2010, 2011. Renewal of hiring, presumption as to, § 2012. Seduction of servant forbidden, § 49. Sending things from distance, dutv as to, §§ 1987, 2014. Servant defined, § 2009. Servant not bound to send anvthing to master through third person, § 2014. Servant to pay over without demand, § 2014. Service without employment, §§ 2078, 2079. -• Services must be properly rendered or employee not liable, § 1990. Skill, degree required of employee, § 1983. Skill, employee must use all he has, § 1984. Specified term, employment for, meaning of, § 1999. Substitute, liability of employee for, § 19S9. Substitute, liability directly to employer, § 1989. Surviving employee, duty of, § 1991. Termination by death or incapacity of employee. § 1997. Termination, by death or incapacity of employer, § 1996. Termination, by expiration of appointed term, § 1997, INDEX. 1163 MASTER AND SERVANT. (Continued.) Termination by extinction of subject, § 1997. Termination, death operates as, § 1997. Termination, discharge of servant, grounds for, §§ 2000, 2015. Termination of employment for specified term by employee for breach by employer, § 2001. Termination of employment for specified term for breach of duty by employee, § 2000. Termination of employment for specified term for neglect or in- capacity of employee, § 2000. Termination of employment without specified term may be at will of either party, § 1999. Termination of relation, meaning of employment for specified term, § 1999. Termination of relation not worked by death of employer, when, §§1996, 1998. Termination of relation, what works a, §§ 1996, 1997. Termination, presumption as to renewal and wages where employment continues after, §§ 1980, 2012. Term of hiring, presumption as to, §§ 2010, 2011. Term of service, contract for services limited to two years, § 1980. Things acquired by employee belong to employer, § 1985. Time of servant, how far belongs to master, § 2013. Time, ten hours a day only need give employer, § 2013. Unlawful directions, liability of master to servant obeying, § 1969. Usage, duty of employee to conform to, § 1982. What things acquired by employee belong to employer, § 1985. Wages, assignment of, provision relating to, § 955. MATE. See Shipping. MAXIMS. Acquiescence in error takes away right to object, § 3516. Benefits, one who takes must bear burden, §§ 158!J, 3521. Certain, that is certain which can be made certain, § 3538. Code, do not qualify provisions of, but are intended to aid applica- tion of, § 3509. Consent, one consenting to act not wronged by it, § 3515. Contemporaneous construction is the best, § 3535. Earliest preferred where rights equal, § 3525. Enumeration of, §§ 3510-3543. Grant presumed to carry whatever essenial to use, § 3522. Greater contains the less, § 3536. Idle acts, law neither does nor requires, § 3532. Impossibilities, law never requires, § 3531. Incident follows principal, not principal the incident, § 3540. Interpretation giving etfect preferred to one making void, § 3541. Interpretation must be reasonable, § 3542. Law disregards trifles, § 3.533. Law does not interpose between persons equally in right or wrong, § 3524. Law established for public reason cannot be contravened, § 3513. Law helps the vigilant father than those who sleep on their rights, § 3527. Law intended for one's benefit may be waived, § 3513. Law neither does nor requires idle acts, § 3532. Law never requires impossibilities, § 3531. Law respects form less than substance, § 3528. Loss, upon whom falls where one of two iimocejit persons must suffer, § 3543, 1164 INDEX. MAXIMS. (Continued.) No man responsible for what no man ean control, § 3521)? No one should suffer by act of another, § 3520. One cannot take advantage of his own wrongs, § 3517. One failing to forbid what is done on his behalf deemed to have bidden it, § 3519. One must so use his own rights as not to infringe rights of another, § 3514. Particular expressions qualify general, § 3531. Possession, one fraudulently dispossessing himself of thing treated as if still in possession, § 3518. Principal does not follow incident but incident the principal, § 3540. Priority in time makes priority in right, when, § 3525. Purpose must not be changed to injury of another, § 3512. Reason for rule ceasing, rule ceases, § 3510. Reason the same, rule the same, § 3511. Remedy exists for every wrong, § 3523. Rule ceases where reason ceases, § 3510. Rule the same where reason is the same, § 3511. Superfluity does not vitiate, § 3537. That is certain which ean be made certain, § 3538. That is regarded as done which ought to be done, § 3529'. That which does not appear to exist regarded as if it did not exist, § 3530. Time does not confirm void act, § 3539. Trifles, law disregards, § 3533. Vigilant, law helps, before those who sleep on their rights, § 3527. "^■'aiver of law established for public reason, right as to, § 3513. Waiver of law intended for one's benefit, § 3513. MECHANICS' INSTITUTE. See tit. "Chambers of Commerce, Boards of Trade anil Moehanics' Institutes. Act validating acknowledgments by. Appendix, tit. "Acknowledg- ments." MECHANIC'S LIEN. Homestead, liability for, § 1241. Regulated by Code' of Civil Procedure, § 3059. MEETINGS. Corporate. See Corporations, X. Particular bodies, of. See particular title. MEMORANDUM. See Statute of Frands. Auctioneer's, binding on parties, §§ 1798, 2363. Declarations of trust, of, § 2254. On contract for sale of personal property, § 1739. On contract for sale of real property, § 1741. MENACE. Consent to contract obtained by, effect of, §§ 1567, 1568. Consists in what, § 1570. Rescission for, § 1689. MERCHANDISE. Implied warranty as to. §§ 1768-1771. MERGER. Declarations, merger of in trust, § 2254. Dominant and servient estate, § 811. Interest, of, when destroys hiring, § 1933, INDEX. 1165 MERGER. (Continued.) Interests, of, destroys survitude, § 811. Oral negotiations merged in writing, § 1625. Writing supersedes oral negotiations, § 1625. MESSAGES. See Carriers of Messages; Telegraph Corporations; Tele- phone Corporations. Carrier oi, damages for breach of obligation to receive, § 3315. Duty of carriers of to deliver, § 2161. METER. Gas, §§ 628, 631. MILL SITE. See Mines and Mining. MINERALS. See Mines and Mining. MINES AND MINING. See Mining Corporations. Annual work, affidavit of, fee for recording, § 1426n. Annual work, affidavit of or certified copy of, as evidence, § 1426m. Annual work, affidavit of time to file, § 1426m. Annual work, affidavit of, what to set out, § 1426m. Annual work, delinquent co-owner, notice and affidavit as evidence, § 14260. Annual work, delinquent co-owner, notice to and affidavit of, record- ing, § 1426o. Annual work, delinquent co-owner, notice to, how given, § 1426o. Annual work, delinquent co-owner, paj'nient by and rights on refusal of co-owner to give writing acknowledging, § 1426o. Annual work, failure to perform, locator disqualified from relocating within tkree years, § 1426s. Annual work, $100 yearly required, § 14261. Claims, recording affidavits of work and notice, § 1159. Claims, recording notice of location, § 1159. District rules and regulations not affected- by mining law, § 1426r. Districts not affected by mining law, § 1426r. Fixtures attached to, what are, § 661. Hydraulic mining, §§ 1424, 1425. Lode claim, boundaries, length and width of, § 1426a. Lode claim, extent of allowed, § 1426a. Lode claim, how located, § 1426. Lode claim, notice of location, fee for recording, § 1426b. Lode claim, notice of location to be recorded within thirty days, § 1426b. Lode claim, notice of location, where posted, § 1426. Lode claim, notice what to state, § 1426. Lode claims,, boundaries of, defining, §§ 1426, 1426a. Lode claims, who may locate, § 1426. Mill site claim, extent of, § 1426j. Mill site claim, located how, § 1426J. Mill site claim, notice of location, fee for recording, § 1426k. Mill site claim, notice of location, posting of, and contents of, § 1426J. Mill site claim, notice of location to be recorded within thirty days, § 1426k. Mill site claim, who may locate, § 1426J. Minerals, right to take, §§ 801, 802. Notice of location, amended or additional, filing, does not preclude proving title under previous locations, § 1426h. Notice of location, amended or additional, right to file, § 1426h. 1166 INDEX. MINES AND MINING. (Continued.) Notice of location, attaching survey and. certificate of surveyor to, and filing with, effect of, § 142tji. Partnership, mining, §§ 2511-2520. See Mining Partnership. Placer claim, boundaries, descriptions, marking and staking where United States survey over tract, § 1426c. Placer claim, boundaries of, marking and defining, § 1426e. Placer claim, how located, § 1426c. Placer claim, notice of location, fee for recording, § 1426d. Placer claim, notice of location to be recorded within thirty days, § 1426d. Placer claims, notice of locations, what to contain, § 1426c. Placer claims, notice of location, where posted, § 1426c. Record of location to be received in evidence, § 1426p. Eecords of instruments required to be recorded, certified copies of, admissible, § 1426q. Right of tenant for years to work mine or quarry, § 819. Survey and certificate of surveyor, attaching to and filing with loca- tion notice, effect of, § 14261. Tunnel claim, boundary lines, how established, § 1426f. Tunnel claim, how located, § 1426e. Tunnel claim, length of, § 1426f. Tunnel claim, notice of location to be recorded within thirty days, § 1426g. Tunnel claim, notice of location, what to contain, § 1426e. Tunnel claim, notice of location, where posted, § 1426e. MINING CORPORATIONS. Books, right of examination of, § 588. Books, right to make copies from, § 588. * Books to be kept at some place in state, § 588. Books to be kept open for inspection, § 588. Books, what to show, § 588. Consolidation, authorized, § 5S7a. Consolidation, calling meeting of stockholders to elect directors, § 587a. Consolidation, certificate of, filing of, § 5S7a. Consolidation, certificate, what to contain and who to sign, § 587a. Consolidation, creditors not to be affected, § 587a. Consolidatiou, how effected, § 5S7a. Examination of ground, stockholder has right of, §§ 588, 589. Examination, order for, duty of superintendent on receiving, § 589. Examination, order for, liability of president failing to issue, § 590. Examination order for, president to issue to stockholder on applica- tion, § 589. Examination, order for, punishment of superintendent failing to obey, §589. Inspection of books, right of, § 588. Inspection of reports, accounts and correspondence of superintendent, right of, § 588. May consolidate, § 587a. Monthly statements and balances, posting, § 5SS. Monthly statements, verification of, § 588. Monthly statements, what to show, § 5SS. Penalty for failure to post monthly statements and reports, § 590. Penalty for refusal or neglect of president to issue order of inspec- tion, § 590. Penalty where superintendent fails to obev order for examination § 589. INDEX. 1167 MINING CORPORATIONS. (Continued.) Permit to examine, duty of superintendent on receiving, § 589. Permit to examine, duty to issue, § 589. Property, right to examine and talte samples, §§ 588, 589. Protection of miners, act providing for. Appendix, tit. "Mines and Mining." Eeceipts and expenditures, liability of directors failing to make and post report, § 590. Receipts and expenditures, monthly report of bv superintendent, § 588. Receipts and expenditures, monthly statement to be published, § 588. Receipts and expenditures, secretary to keep books of, § 588. Receipts and expenditures, statements of, verification and posting of, § 588. Stockholder, right to examine books and take copies, § 588. Stockholder, right to examine property and take samples, §§ 588, 589. Stock transfer agencies, establishment in other states authorized, § 586. Stock transfer agencies, governed by by-laws and directors of corpo- ration, § 586. Stock transfer agencies, stock, how transferred at, § 587. Stock transfer agency, stock not issued at unless certificate surren- dered, § 587. Stock transfer agency, stock transferred at, how signed, § 587. Stock transfer agencies, transfer at, validity of, § 586. Superintendent, accounts, correspondence and report open for in- spection, § 588. Superintendent, duty of, on receiving order for examination, § 589. Superintendent failing to obey order of examination, punishment of, § 589. Superintendent, monthly report of, § 588. Superintendent, report as to ore and discoveries, § 588. MINING PARTNERSHIP. Dissolved, is not, by sale of interest, § 2516. Express agreement not necessary to become, § 2512. Express authority necessary to bind, § 2519. Lien of partners on property, § 2514. Mine is firm property, § 2515. One partner cannot bind except by express authority, § 2519. Owners of majority of shares govern, § 2520. Profits and losses shared how, § 2513. Purchaser in takes subject to what liens and claims, § 2517. Purchaser in takes with notice of liens, when, § 2518. Purchaser of interest becomes partner, § 2516. Relation arises how, § 2512. Sale of interest in, does not dissolve, § 2516. Transfer by partner does not dissolve, § 2516. When exists, § 2511. MINISTER. ' Acknowledgments outside of United States, may take, § 1183. Marriages, may solemnize, § 70. MINOR. See Infants. MISDEMEANOR. Acting as agent of foreign corporation without complying with stat- ute, § 645. 1168 INDEX. MISDEMEANOR. (Coutiniied.) Agent of foreign building and loan association, not complying with statute, guilty of, § 646. Apprentice, enticing or harboring, § 275. Failure of bank to publish list of unclaimed deposits, § 583b. Failure to comply with statute in advertising capital stock, § 583a. Failure to show names of persons in unincorporated bank, § 582, False statements to mutual insurance company, § 453j. - False financial statement of affairs of corporation, signing a mis- demeanor, § 302a. Foreign agent commits by non-comj^liance with statute, § 645. Humane officer acting as without authority, § 607f. Humane officer, issuing false certificate as to, § 607f. Humane officer, resisting, § 607f. Loans by title insurance company in violation of statute, § 453z. Mortgage insurance corporations, violation of provisions of statute by, § 453cc. Eesisting officer of society for prevention of cruelty to children or animals, § 6o7d. MISREPRESENTATION. See Fraud. MISTAKE. As affecting right of specific performance, § 3391. Consent obtained by, §§ 1567, 1568. Contract not expressing intent because of, intent governs, § 1640. Disregarding erroneous parts of writing, § 1640. Fact or law, may be either of, § 1576. Fact, what is, § 1577. Foreign laws, of, mistake of fact, § 1579. Law, of, what is, § 1578. Property acquired by restoration of, § 1713. Reformation of contract for, § 3399. Rescission for, §§ 1689, 1690, 3407. Rescission for, what stipulations do not defeat, § 1690. Restoration of property obtained by, demand, § 1713. Restoration of thing received through mistake, notice and demand, § 1713. Specific performance, effect on, § 3391. Trust arising from, § 2224. Will, in, § 1340. MOCK AUCTION. See Auctions. MONEY, Breach of contract to pay money only, damages, § 3302. Corporation not to issue bills, notes, etc., to circulate as, § 356. Exchange of, § 1804. Interest on. See Interest. Loan of. See Loan. Payment of, time where no time specified, § 1657. r Railroads, power to borrow, § 456. Warranty on exchange of, § 1807. MONGOLIANS. License for marriage between, and whites, not to issue, § 69. Marriage between, and whites forbidden, § 60. MONTH. Defined, § 14. INDEX. 1169 MONUMENT. Duty of coterminous owners respecting, § S'il. MORAL OBLIGATION. As a consideration, § 1606. MORTGAGE. See Lien. Absolute deed may be shown to be subject to defeasance, § 2925. Absolute deed subject to defeasance, defeasance not notice unless re- corded, § 2950. Acknowledgment of and effect of, § 2952. Adversely held property may be mortgaged, § 2921. After-acquired title inures to mortgagee, § 2930. Alienation, property liable in inverse order of, § 2S99. Assignment of debt, effect of, on the security, § 2936. Assignment of, may be recorded, § 2934. Assignment, record of as notice, §§ 2934, 2935. Benevolent association, by, § 598. Bona fide mortgagee, rights against unrecorded instrument, § 1214. Bottomry not subject to law of, § 2942. Building and loan association may make, § 640. By religious, social, or benevolent association, § 598. Certified, how, and effect of certifying, § 2952. Chattel mortgages. See Chattel Mortgages. Conveyance includes when, § 1216. Created, how, § 2922. Created, must be by writing, § 2922. Deed absolute may be shown to be subject to defeasance, § 2925. Deed absolute subject to defeasance, defeasance not notice unless re- corded, § 2950. Deed deemed a, when, §§ 2924, 2925. Defeasance, deed cannot be shown to be subject to, against bona fide purchasers, § 2925. Defeasance, deed may be shown to be subject to, § 2925. Defeasance, not notice to third person unless recorded, § 2950. Defined, § 2920. Discharge, certificate of, how executed, § 2939. Discharge, certificate of to be given to mortgagor, § 2941. Discharge, duty of mortgagee to enter and liability for refusal, § 2941. Discharged of record, how, §§ 2938, 2939. - Discharge, liability for refusal to execute certificate of, § 2941. Discharge of record by foreign executor, § 2939^2- Discharge of record by foreign guardians, § 29391/2. Discharge, recording certificate of, § 2940. Encumbrance includes what, § 1114. Execution of, formalities, § 2922. Extended, how, § 2922. Extends to what, § 2926. Extension must be in writing, § 2922. Factor may not, § 2368. Foreclosure of right of redemption, § 2931. Foreign executor or guardian, discharge by, § 29391X.. Form of, § 2948. Growing crop, lien, continuance of after severance, § 2972. Homestead, liability for, § 1241. Homestead, mortgaged how, § 1242. How created, extended or renewed, § 2922. Civ. Code — 74 1170 INDEX. MORTGAGE. (Continued.) Insurance by mortgagor assigned to mortgagee, effect of, § 2541. Insurance by mortgagor in favor of mortgagee effect of, § 2541. Insurance on mortgaged property, §§ 2541, 2542. Lien extends to what, § 2926. Lien of, is independent of possession, § 2923. Lien of, is special, unless otherwise agreed, § 2923. Lien on growing crop, continuance after severance, § 2972. Liens, priority of mortgage for price over, § 2898. Liens, subject to provisions of chapter on § 2877. Mortgagor must not impair security, § 2929. Order of resort, where property transferred at various times, § 2899. Personal obligation, is not, § 2928. Personal performance not necessary in absence of covenant, § 2928. Possession, agreement may be made for, without new consideration, 2927. Possession, mortgagee not entitled to, unless. authorized, § 2927. Possession, mortgagor may agree to mortgagee's, without new con- sideration, § 2927. Power of attorney to execute, how executed, § 2933. Power of sale, may be conferred, § 2932. Power or sale, when deemed part of security, § 858. Power to sell, assignee may exercise, § 858. Power to sell passes to assignee, § 85S. Priority of a purchase money mortgage over liens, § 2898. Property adversely held may be mortgaged, § 2921. Property that may be mortgaged, § 2947. Proved, how and effect of, § 2952. Eailroad, § 456. Eeal property, what interest in may be mortgaged, § 2947. Eecording certificate of discharge, § 2940. Eecording defeasance where deed is intended as mortgage, § 2950. Eecording, duty as to, § 1164. Eecording, in general, § 2952. Eecording, manner and effect, § 2952. Eecording. See Eecording. Eecord of assignment as notice, §§ 2934, 2935. Eedemption, §§ 2903-2905. Eedemption, right of, how foreclosed, § 2931. Eeligious association, by, § 598. Eenewal must be in writing, § 2922. Eenewed, how, § 2922. Eespondentia not subject to law, § 2942. Sale, power of. See ante, this subject. Satisfaction, certificate, liabilitv of mortgagee for refusal to give,' § 2941. Satisfaction, certificate of discharge, how executed, § 2939. Satisfaction, certificate to be given mortgagor, § 2941. Satisfaction, discharged of record, how, §§ 2938, 2939. Satisfaction, duty of mortgagee on, § 2941. Satisfaction of by foreign executor, administrator or guardian, man- ner of, § 2939Vo. Satisfaction of, foreign executor, administrator or guardian mav satisfy, § 2939y2. Satisfaction, duty of mortgagee to enter and liability for refusal, § 2941. Satisfaction, foreign executors or guardians, discharge of by, § 2939%. Satisfaction, recording certificate of discharge, § 2940. Ship-master's power to hypothecate, § 2377. INDEX. 1171 MORTGAGE. (Contiuued.) Ship, of, code sections not applicable, § 2971. Ship, of, necessity of recording and where recorded, § 2958. Statute of frauds, extension or renewal must be in writing, § 2922. Statute of frauds, must be in writing, § 2922. State of frauds, power of attorney to execute mortgage must be written, § 2933. Title subsequently acquired inures to mortgagee, § 2930. Transfer deemed a, when, § 2924. Transfer of interest in property, when a mortgage and when a pledge, § 2924. Transfers of interest in property, what deemed to be, § 2924. Trust, express, to mortgage realty, § 857. Violation of code provisions by officer, employee or agent of mortgage insurance corporation, § 453dd. Wagon-road corporation, by, § 522. Waste, mortgagor must not commit, § 2929, What transfers of interest in property deemed to be, § 2924. Will, effect of encumbrance on, § 1302. Will not revoked by, § 1302. Writing, extension or renewal must be in, § 2921. Writing, power of attorney to execute mortgage must be in, § 2933. Written, must be, § 2922. MORTGAGE INSURANCE COMPANIES. Amount and kind of securities that may be guaranteed, § 453cc. Capital stock, amount required before doing business, § 453cc. Capital stock, reduction of, limit upon right of, § 453cc. Certificate of authority to do business from insurance commissioner necessary, § 453cc. Certificate of insurance commissioner of compliance with law neces- sary before doing business, § 453cc. Compliance by with requirements of law applicable to insurance com- panies necessary, § 453aa. Definition of entire mortgage guaranty, § 453bb. Definition of mortgage insurance, § 453bb. Definition of mortgage participation certificates, § 453bb. Definition of "policy of mortgage insurance," § 453bb. Definition of security, § 453bb. Dividends, when only can be declared, § 453dd. Entire mortgage guaranty, defined, § 453bb. Investment of funds of, § 421, subd. 6. Investment of funds of insurance companies in notes or bonds secured by policies of, § 421. Investments by, may invest capital, surplus and accumulations in what obligations, § 453ee. Investments not to be made in capital stock of other corporations, § 453cc. Kind and amount of securities that may be guaranteed, § 453cc. Loans not to be made directly or indirectly to officers or directors, § 453cc. Loans not to be made on capital stock of other corporations, § 453cc. Loans, stock of water or power company may be used and disposed of for protection of, § 453cc. Loans, stock of water or power company, right to take in pledge, § 453cc. Mortgage participation certificate defined, § 453bb. Mortgage participation certificates acceptable as part of securities deposited by trust company with state treasurer. Appendix, tit, "Banking," §§ 96, 99. 1172 INDEX. MORTGAGE INSURANCE COMPANIES. (Continued.) Mortgage x)articipation certificates as legal investments for trust or corporate funds, § 453ff. Mortgage participation certificates, building and loan corporations may invest surplus in notes or bonds secured by, § 647. Mortgage participation certificates, premiums required to be paid payable out of income of bonds secured, § 453ff. Mortgage particiiJation certificates, stock of water or power com- pany may be assigned as part of security for, § 453cc. Mortgage participation certificates to be accepted as part of trust fund deposited with state by trust or insurance companies, § 4D3ff. Mortgage participation certificates, withdrawal of securities and sub- stitution of others, right of, § 453tf. Policies, issuance of is not creation of debt or indebtedness, § 453cc. Policies, limit on amount of that can be issued, § 453cc. Policies of mortgage insurance acceptable as part of securities de- posited by trust company with state treasurer. Appendix, tit. "Banking," § 96. Policies of mortgage insurance, building and loan corporations may invest in notes or bonds secured by, § 647. Policy of mortgage insurance defined, § 453bb. Premiums required to be paid payable out of income of notes or bonds secured, § 453fif:. Keports, appraisements of properties, by whom to be made, § 453gg. Eeports, appraisements of properties, signing, certifying and verify- ing, § 453gg. Eeports, appraisements of properties to be filed with, § 453gg. Eeports, appraisements of properties', what to state, § 453gg. Eeports, penalties for failure to file, § 453gg. Eeports to be made quarterly, § 453gg. Eeports to be made to insurance commissioner by, § 453gg. Eeports to be verified, § 453gg. Eeports, what to state, generally, § 453gg. Eeports, what to state, when policies constitute entire mortgage guar- anties, § 4o3gg. Eeports, what to state when policies constitute mortgage participa- tion certificates, § 453gg. Securities guaranteed by policies of mortgage insurance as legal in- vestments for trust or corporation funds, § 453fl:. Securities guaranteed by policies of, to be accepted as part of trust funds deposited with state by trust or insurance companies, § 453ff. "Security," meaning of, § 453bb. Subject to requirements of law applicable to insurance companies, § 453aa. Surplus, all additions to, subject to provisions of law governing, § 4o3dd. Surplus, amount of and how accumulated, § 453dd. Surplus, defined, § 453dd. Surplus, uuist accumulate, § 453dd. Surplus to be maintained as security for policy-holders, § 453dd. Surplus to be restored if impaired, § 45odd. Violation of provisions of statute by, effect of, § 453cc. What included in term "mortgage insurance company," § 453bb. MOTHER. See Parent and Child. Apprenticeship, consent to, § 265. Custody of child, not transferred without her consent, § 197. INDEX. 1173 MOTHER. (Continued.) Illegitimate, of, consent of to liis adoption, § 224. Illegitimate, of, entitled to custody and earnings, § 200. Illegitimate, of, succeeds to his property, § 1388. MULATTOES. License for marriage between and whites, not to issue, § 69. Marriages between, and whites void, §§ 60, 69. MULTIPLICITY OF SUITS. Injunction to prevent, §§ 3422, 3423. MUNICIPAL CORPORATIONS. Fares on railroads in cities over 100,000, act limiting. Appendix, tit. "Kailroads." Franchise granted by not affected by extension of corporate exist- ence, § 401. Franchises, acts relating to sale of and governing conditions of sale. Appendix, tit. "Eailroads." Franchises for elevated or ui'dergronnd road, power to grant, § 492. Franchises for roads for horseless vehicles, § 524. Franchises for street railway, act limiting time within which may be granted. Appendix, tit. "Eailroads." Franchises, railroad, power to grant, § 493. Injunction not granted to prevent legislative act, § 3423. Limit of tern? of lease of property of, § 718. Limit upon lease of agricultural land owned by, § 717. Limit of lease of sewer farm owned by, § 718. Limit of lease of sewage by, § 718. Population, how ascertained to determine capital stock of trust companies, § 290a. Private and public corporations distinguished, § 284. Societies to prevent cruelty to children and animals, authorized to make allowance to, § 607e. Street railways, permitting two or more to use same tracks, § 499. Streets, lands, or waters of, right of railroad to use, § 470. Tracks for grading purposes, granting right for, § 509. Water company supplying water to, rights and duties of, §§ 548, 549. Waters, appropriation of. See Waters. . Will, power to take under, § 1275. MURDER. One convicted of murdering decedent not to succeed to estate, § 1409. MUTUAL. Consent, when deemed to be without regard to the fact, § 1580. Consent, when onh-- is, § 1580. MUTUAL BENEFIT AND LIFE ASSOCIATIONS. See Mutual Life, Health, Accident and Annuity Insurance on Assessment Plan. Annual payments, § 453. Articles of incorporation, filing of, § 452a. Articles of incorporation, signing and acknowledging, § 452a. Articles of incorporation, what to contain, § 452a. Assessments, limit on power to levy, § 453. Assessments, power to levy, § 453. By-laws, § 453. Death benefits, limit on, § 452a. Formation of, authorized, § 452a. Formation of, manner of, § 452a. 1174 INDEX. MUTUAL BENEFIT AND LIFE ASSOCIATIONS. (Continued.) Formation of, who may form, § 452a. Mutual life, health and accident insurance corporations. See Mutual Life, Health, Accident and Annuity Insurance on Assessment Plan. Number of members, § 452a. P&wers and liabilities, § 453. ^ Purpose of, § 452. Who may form, § 452a. MUTUAL BENEFIT SOCIETY. See Mutual Benefit and Life Associa- tions; Mutual Life, Health, Accident and Annuity Insurance on Assessment Plan; Religious, Social and Benevolent Corporation. MUTUAL LIFE AND ACCIDENT INSURANCE CORPORATION. See Mutual Benefit and Life Associations; Mutual Life, Health, Ac- cident and Annuity Insurance on Assessment Plan. MUTUAL LIFE, HEALTH, ACCIDENT AND ANNUITY INSURANCE ON ASSESSMENT PLAN. See Insurance Corporation. Application, contract to be founded on, § 453j. Application, false statement in, punishment for, § 453j. Application, report of physician, § 453j. Articles of incorporation, filing, § 453e. Benefit societies exempt from provision of act, § 453p. Bonds or securities, deposit with state treasurer, p§ 453e, 453h. Bonds or securities, held in trust for contract-holders, § 453e. Business, compliance with Political Code prerequisite to soliciting, § 453e. Business to be commenced within year, § 453e. Certificate of insurance commissioner before issuance of contracts, § 453e. Contract, application for and report of physician, § 453j. Contract, limit upon right to issue, § 453j. Contract of, defined, § 453d. Contracts, certificate of insurance commissioner to be obtained be- fore issued, § 453e. Contracts, membership and capital required before issuing, § 453e. Contracts, must show liabilities are not limited to fixed premiums, § 453d. Contracts, what to specify, § 453g. Corporations to carry on, laws governing, § 453e. Corporations to carry on may be formed, § 453e. Discontinuance of business, disposition of reserve fund, § 453h. Exempt, money obtained from corporation is, § 453k. False statements to, punishment for, § 453j. Fees, amount of and disposition of, § 453n. Foreign corporations, conditions precedent to doing business, § 453i. Foreign corporations, license, renewal of, § 453i. Foreign corporations, license, revocation of and notice of, § 453i. Foreign corporations, license to be issued to, when, § 453i. Foreign corporations, retaliatory clause relating to fees, etc., § 453i. Fraternal societies exempt from provisions of act, § 453p. Insurance commissioner, examining into affairs of bv, and duties of, §4531. Insurance commissioner, expenses, presentment, allowance and pay- ment of, § 453o. Insurance commissioner, proceedings by against, § 4531, Investment of funds, § 453e, INDEX. 1175 MUTUAL LIFE, HEALTH, ACCIDENT AND ANNUITY INSURANCE ON ASSESSMENT PLAN. (( oiitiiiuecl.) luvestaiont of reserve and emergency fund and deposit of securities, §§ 453e, 453h. Lapsing of policies, notice of, § 453m. Lien on property of, indebtedness upon contracts is, § 453h. Moneys obtained from, exempt, § 453k. Notice of injury, accident, etc., provision in policy limiting time for when void, § 2633a. Notice of injury, accident, etc., when may be given, § 2633a. Name of, § 453e. Organization to be completed in year, § 453e. Payment, time of and effect of failure to pay, § 453g. Penalties, disposition of, § 453n. Pre-existing corporations, reincorporation of, § 453f. Pre-existing corporations, .rights of, § 453f .- Priority of indebtedness under contract, § 453g. Reserve and emergency fund, disposition of where business discon- tinued, § 453h. Eeserve and emergency fund, extent of, § 453h. Reserve and emergency fund, investment of and deposit and ex- change of securities, § 453h. Reserve and emergency fund, time within which to be accumulated, §453h. Reserve and emergency fund to be created, § 453h. Reserve and emergen c}^ fund, what part of, § 453h. Revocation of power to do business, § 4531. Secret societies exempt from provisions of statute, § 453p. Statements to be filed annually, § 4531. MUTUALITY. Of consent, § 1580. Of intention, contract interpreted to give, § 1636. MUTUAL WILLS. See Wills, II. N NAME. See Good-will. Adopted child, of, § 228. Building and loan corporation, name of, § 633. Certificate of name of person, firm or corporation, change of, affi- davit of, §1163. Certificate of name of person, firm or corporation, recording of, § 1163. Certificate on change of partnership, § 2469. Change of, by corporation, decree to be filed in county where articles filed, § SOOa. Change of partnership, as notice of dissolution, § 2454. Change of, property, how conveyed in case of, § 1096. Corporate, to be stated in articles, § 290. Corjioration, change of name by. See Corporations, III. Corporation, name of, prohibitions in regard to, § 296. Error in corporate, § 357. Fictitious, certificate, contents of, § 2466. Fictitious, certificate, failure to file, penalty; § 2468. Fictitious, certificate, filing witli county clerk, §§ 2466, 2468. Fictitious, certificate, publication of, § 2466. Fictitious, certificate, signature to and acknowledgment of, § 2468. 1176 INDEX. NAME. (Continued.) Fictitious, county clerk to keep register of, § 2470. Good-will, assignor of, may transfer right to use name, § 993. Good-will does not include right to use, § 992. Incorporated church, name of, § 604. Misnomer of corporate name, effect of, § 357. Partnership under fictitious, §§ 2466-2471. See Partnership. Partnership. See Partnership. Society for prevention of cruelty to children or animals, using name similar to existing corporation, § 607d. Unincorporated bank, failure to show names of persons in, penalty, §582. Unincorporated bank, names of persons in to be shown, § 582. NATIONAL BANKS. Examination of, by superintendent of banks. See Banks and Bank- ing, IT. NAVIGABLE WATERS. See Waters. State owns land below, § 670. NAVIGATION. See Shipping. Fisheries, or domestic or foreign navigation, ships are engaged in, § 962. NECESSARIES. Husband's liability for, §§ 174, 175. Infants' contract for, cannot be disaffirmed, § 36. Liability of husband for necessaries furnished wife, § 174. Liability of wife's separate property fox, § 171. Lunatic's liability for, § 38. Parent not liable for support furnished child,^ when, § 208. Parent when liable for necessaries furnished child, § 207. Promise of child to pay for those furnished parent, § 206. Third person may furnish child with, § 207. NEGLECT. See Divorce. NEGLIGENCE. See Master and Servant. Agent's, principal's liability for, § 2338. Borrower, care required of, §§ 1886, 1887, 1888. Borrower, liability for, § 1888. Borrower to repair injuries caused by, § 1SS9. Carrier cannot exonerate from, in advance, § 2175. Carriers of messages, degree of care and diligence required of, § 2162. Carriers of passengers for reward, care required of. § 2100. Carrier of passengers, gratuitous, care required of. § 2096. Carrier of property for reward, care required of, § 2114. Carrier of property without reward, care required of, § 2114. Carriers. See Carriers; Carriers of Goods; Carriers of Messages; Carriers of Passengers; Marine Carriers. Contract exempting one from liabilitv for negligent acts, unlawful, § 1668. Contributory, bars right to relief for, § 1714. Contributory, passenger violating rules, § 484. Contributory, rules apply between master and servant, § 1970. Depositary for hire,' care required of, § 1852. Depositary, gratuitous, liabilitv for, § 1846. Depositary's liability for, §§ 1S38, 1840. Divorce for neglect, §§ 92, 107. INDEX, 1177 NEGLIGENCE. (Continued.) Employee for his own benefit, care required of, § 1979. Employee for reward, care required of, § 1978. Employee's liability for, to employer, § 1990. Fire, negligently setting, treble damages for, § 33-i6a. Gratuitous employee, liability of, for, § 1975. Hirer, care required of, § 1928. Hirer to repair injuries caused by, § 1929. Insurer not exonerated by, § 2629. Liable, one is, for negligent acts, § 1714. Liability for, extent of, where prescribed, § 1714. Loss, upon whom must fall, where one of two innocent persons must suffer, § 3543. Master of ship, liability for negligence of persons employed on ship, § 2383. Master's liability for, §§ 1969-1971. Passenger violating rules and instructions, § 484. Pilot's, liability of ship-owner or master for, § 2384. Ship-master's liability for, §§ 2043, 2383, 2384. Trustee, degree of care and diligence required of, § 2259. Want of ordinary care or skill, liability for, § 1714. Willful acts, liability for, § 1714. NEGOTLA.BLE INSTRUMENTS. I. Definitions and kinds of; code provisions relating to. II. Execution and form of; conditions and stipulations in. III. Consideration. IV. Construction of. V. Bills of exchange. VI. Promissory notes. VII. Checks. VIII. Indorsement. IX. Maturity of; days of grace. X. Presentment and demand. XI. Acceptance. Xn. Dishonor and notice. XIII. Protest. XIV. Pajonent. XV. Destruction of by fire. I. Definitions and kinds of; code provisions relating to. Bank notes are, §§ 3095, 3261. Bank note is negotiable even after payment, § 3261. Bill of exchange is negotiable instrument, § 3095. Bill of lading, §§ 2127, 2128. See Bills of Lading. Bond is, § 3095. Bonds. See Bonds. Certificate of deposit is, §§ 3095, 3261. Certificates of deposit, transferability, § 576. Check is negotiable instrument, § 3095. Code provisions apply to what instruments, § 3086. Foreign bill, defined, § 3224. Inland bill defined, § 3224. Kinds of, enumerated, § 3095. 1178 INDEX. NEGOTIABLE INSTRUMENTS. I. Definitions and kinds of; code pro- visions relating to. (Continued.) Letters of credit. See Letters of Credit. Negotiable Instruments defined, § 3087. Note defined, § 3244. Promissory note is, § 3095. Warehouse receipts. See Warehousemen. What instruments are negotiable, § 3095. n. Execution and form of; conditions and stipulations in. Absolute, must be, § 3088. Alternative, instrument, may be in, § 3090. Attorneys' fees, may provide for, § 3088. Blank, liability on, to indorsee, § 3125. Condition, must be for unconditional payment of money, § 3088. Condition, must not contain unless certain of fulfillment, § 3088. Contract, what it must not contain, § 3093. Costs, may provide for, § 3088. Date, any may be inserted, § 3094. Date, nominal death or incapacity at, does not affect, § 3094. Date not essential, § 3091. Death of maker at time of nominal date, § 3094. Incapacity of maker at time of nominal date, § 3094. Money, must be payable in, § 3088* Must not contain other contract than allowed by code, § 3093. Option between payment of money and performance of another act, effect of, § 3090. Option, negotiable instrument giving, § 3090. Payee, fictitious, payable to bearer, § 3103. Payee must be ascertainable at time of execution, § 3089. Payment, time or place of, need not be designated, § 3091. Pledge of collateral with power of sale, may contain, § 3092. Unconditional payment of money, must be for, § 3088. Unindorsed note pavable to maker or fictitious person effect of. § 3102. III. Consideration. Effect of want of, § 3122. Presumption of, § 3104. IV. Construction of. Bearer, payable to, how construed, § 3101. Construction of bill paj^able to person or his order, § 3101. Fictitious person, unindorsed note payable to, effect of, § 3102. Maker, unindorsed note payable to, effect of, § 3102. Order, payable to, how construed, § 3101. Payable to person or order, how construed, § 3101. Payee fictitious, payable to bearer, § 3103. V, BUls of exchange. Acceptance of. See post, XI. Acceptance, presentment for, time of, § 3185. Acceptance, unconditional promise to accept, § 3197. Apparent maturity of bill payable at sight, § 3134. Days of grace not allowed, § 3181. Deemed a note, when, §§ 3245, 3246. Defined, § 3171. Dishonor of, damages, § 3235. INDEX. 1179 NEGOTIABLE INSTRUMENTS. V. Bills of exchange. (Continued.) Drawee in case of need, § 3172. Drawer's rights and obligations, § 3177. Foreign bill defined, § 3224. Foreign. See Foreign. Inland bill defined, § 3224.' Negotiable instruments, are, § 3095. Obligations of drawee same as those of a first indorser, § 3177. Parts, drawer to execute bill in, if other party desires, § 3174. Parts, in, presentment, acceptance, or payment of single part suffi- cient, § 3175. Parts of a set, may be in, § 3173. Payable where, § 3176. Presentment for acceptance, time of, § 3185. Presentment when excused, § 317C. Presentment of. See post, X. Promissory note, bill accepted by person other than drawee becomes, § 3246. Promissory note, bill accepted for honor, becomes, § 3246. Promissory note, instrument in form of bill, when deemed to be, § 3245. Eefusal by drawee to return bill, payable immediately, § 3192. Eefusal by drawee to return bill, regarded as an acceptance, § 3195. Eights of drawee same as those of a first indorser, § 3177. Set, in a, §§ 3173-3175. Set, when must be in a, § 3174. Waiver of presentment, § 3176. VI. Promissory notes. Apparent maturity of note payable after sight or demand, § 3136. Apparent maturity of note payable at sight or on demand, § 3135. Bill accepted by person other than drawee becomes, § 3246. Bill accepted for honor becomes, § 3246. Bill, instrument in form of, when deemed to be, § 3245. Code sections applicable to, § 3247. Defined, § 3244. Negotiable instruments, are, § 3095. Presentment, time for, § 3248. Eeceipt, indorsement of, on instrument may be demanded before payment, § 3137. VII. Checks. Bills of exchange, rules governing apply to, to what extent, § 3255. Code sections applicable to, § 3255. Defined, § 3254. Effect of delay in presentment, § 3255. Indorsee after maturity, without notice, rights of, § 3255. Negotiable instruments, are, § 3095. VIII. Indorsement. Agreement to indorse, duty on, § 3109. Bona fide holder, rights of, § 3124. Bona fide holder, rights of, where blanks in, § 3125. Bona fide holder, who is, § 3123. Consideration, want of, does not affect bona fide indorsee, § 3122. Defined, § 3108. Delivery before, liability on, § 3117. Destruction of negotiability by indorser, § 3115. 1180 INDEX. NEGOTIABLE INSTRUMENTS. VIII. Indorsement. (Continued.) Exoneration of indorser by delay in presentment, §§ 3189, 3213, 3214. General, how made sj^ecial, § 3114. General or special, may be, § 3111. General, special indorsement cannot be made after, § 3114. General, turning into special, § 3114. General, what is, § 3112. Indorse, agreement to, duty on, § 3109. Indorsee, bona fide, not affected by want of consideration, § 3123. Indorsee in due course is who, § 3123. Indorsee in due course of instrument executed with blanks, rights of, § 3125. Indorsee in due course, rights of, § 3124. Indorsee of check after maturity, title of, § 3255. Indorsee privy to contract, § 3120. Indorsee, rights of, against prior parties, § 3120. Indorser, definition of, § 3108. Indorser, exoneration of, by delay in presentment, §§ 3189, 3213, 3214, 3248. Indorser, implied warranty of, § 3116. Indorser, liability of, in general, § 3116. Indorser, who is, § 3108. Is what, § 3108. On separate paper, when may be, § 3110. Presumption of consideration, § 3104. Special, cannot be made after general, § 3114. Special indorsement, destroying negotiability by, § 3115. Special or general, § 3111. Special, to destroy negotiability, § 3115. Special, turning general indorsement into, § 3114. Special, what is, § 3113. Unindorsed note, effect of, § 3102. Warranty of indorser, § 8116. "Without recourse," and effect thereof, §§ 3118, 3119. IX. Maturity of; days of grace. Apparent maturity of bill payable at sight, § 3134. Apparent maturity of note payable after sight or demand, § 3136. Apparent maturity of promissory note payable at sight or on de- mand, § 3135. Apparent maturity, where payable at particular time, § 3132. Days of grace, § 3181. Maturity, where last day falls on holiday, § 3132. Eefusal by drawee to return bill, payable immediately, § 3195. X. Presentment and demand. Demand, effect of want of, on principal debtor, § 3130. Demand upon principal debtor, not necessary, § 3130. Presentment and notice of non-payment, where accepted for honor, § 3206. Presentment at particular place, § 3130. Presentment, delay in excused, when, §§ 3158, 3219. Presentment, delay in, exoneration of parties, §§ 3189, 3213, 3214. Presentment, drawer, exoneration of by delay in, §§ 3189, 3213, 3214. Presentment, effect of delay, §§ 3189, 3213, 3214. ' Presentment excused as to whom, §§ 3156. 3157. Presentment excused when, §§ 3131, 3176, 3186, 3218, 3220. 1 INDEX. 1181 NEGOTIABLE INSTRUMENTS. X. Presentment and demand. (Con- tinued.) Presentment for acceptance, when may be made, § 3185. Presentment, indorser, exoneration of, by delay in, §§ 3189, 3213, 3214, 3248. Presentment, made how, §§ 3131, 3186. Presentment, necessity of where acceptance refused, § 3212. Presentment of bill accepted for honor, § 3206. Presentment of check, effect of delay in, § 3255. Presentment of note, effect of delay in, § 3248. Presentment of part of bill in set, § 3175. Presentment of single part of set, § 3175. Presentment, .place of, § 3212. Presentment, place of where not accepted, § 3211. Presentment, rules for making, § 3131. Presentment, time for, §§ 3131, 3185, 3189, 3213, 3214, 3248. Presentment to drawee in case of need, necessary Isefore dishonor, §3188. Presentment to one of several joint drawees, and refusal by, effect of, § 3187. Presentment to principal debtor not necessary, § 3130. Presentment, to whom made, § 3131. Presentment, waived, by waiver of protest, § 3160. Presentment, waived, is not, by waiver of notice of dishonor, § 3159. Presentment, waived, when, § 3176. Presentment, waiver of, waives notice of dishonor, § 3159. Presentment where made, § 3131. XI. Acceptance. Acceptance by third person or for honor, bill becomes promissory note in case of, § 3246. Acceptance by third person or for honor, exonerates prior parties, § 3246. Admits what, § 3199. By refusal to return, § 3195. By separate instrument, §§ 3110, 3195, 3196. Cancellation of, right of, § 3198. Consideration, want of, does not affect bona fide indorsee, § 3122. Foreign bill, acceptance for honor, §§ 3203, 3233. Holder entitled to on face of bill, § 3194. Honor, acceptance for, §§ 3203-3207. Honor, acceptance for, bill becomes in effect a promissory note, § 3246. Honor, acceptance for, does not excuse notice, § 3207. Honor, acceptance for, exonerates prior parties, § 3246. Honor, acceptance for, holder is not bound to accept. § 3204. Honor, acceptance for, how made and enforced, §§ 3205, 3206. Honor, acceptance for, presentment and notice of dishonor, § 3206. Honor, acceptance may be for, § 3203. Honor, acceptance of foreign bill for, §§ 3203, 3233. Honor, acceptor for, notice of dishonor to be given to, § 3206. Honor, acceptor for, reimbursement of, § 3205. Honor, acceptor for, to give notice, § 3205. Honor, acceptor for, when to pay, § 3206. Made how, § 3193. . May be postponed until day following presentment, § 3186. May be upon any part of bill, § 3195. Presentment for, how made, § 3186. Presentment for, to one of several joint drawees, § 3187. 1182 INDEX. NEGOTIABLE INSTRUMENTS. XI. Acceptance. (Contiuued.) Presentment for, time of, § 3185. Presentment for, when may be made, § 3185. Presumption of consideration, § 3104. Presumption of dishonor on failure to accept, § 3133. Promise of, sufficiency of, § 3197. Qualified, bill may be regarded as dishonored, § 3194. Qualifying as to place of payment, § 3195. Eefusal of drawee to return bill may be treated as, § 3195. Kefusal of, may be postponed until day following presentment, § 3186. Single part of a set, acceptance of, § 3175. Suffi.ciency of, when made with owner's consent, § 3195. Third person, acceptance by, exonerates prior parties, § 3246. Unqualified, holder entitled to, § 3194. What sufficient, § 3195. Writing to be in, § 3193. XII. Dishonor and notice. Acceptance, qualified, bill may be regarded as dishonored, § 3194. Dishonored, bill is, on refusal to accept, § 3185. Dishonored, instrument, when is, § 3141. Dishonor of bill payable after sight, presumption of, § 3133. Dishonor of foreign" bill, damages for §§ 3234-3238, 3303. Dishonor of foreign bill, interest, § 3236. Foreign bill, notice of dishonor, how given, § 3225. See post, IX. Foreign bill, notice of protest necessary, § 3225. Foreign bill, notice of dishonor, where protest waived, § 3232. Foreign bill, damages for dishonor of, §§ 3234-3238. Honor, acceptance for. See ante, XL Notice of, additional time for, by subsequent parties, § 3150. Notice of, after death and in ignorance thereof, effect of, § 3146. Notice of, by agent, how given, § 3149. Notice of, by indorser, time for, § 3150. Notice of, by subagent, how gieen, § 3149. Notice of, delav in, excused, when, § 3158. Notice of, effect of, § 3151. Notice of, excused as to whom, §§ 3156, 3157. Notice of, excused when, §§ 3155, 3156, 3157, 3220. Notice of, form of, § 3143. Notice of, given in ignorance of death, § 3146. Notice of, inures to benefit of others, § 3151. Notice of, inures to whose benefit, § 3151. Notice of nonpayment of bill accepted for honor, § 3206. Notice of, not excused by acceptance for honor. § 3207. Notice of. of foreign bill, protest necessary, § 3225. Notice of, served how, § 3144. Notice of, served how, after death of indorser, § 3145. Notice of, time for giving, § 3147. Notice of, time for mailing, § 3148. Notice of. to party accepting for honor, § 3206. Notice of. to whose benefit inures. § 3151. Notice of, waived by waiver of protest, § 3160. Notice of, waiver of, by party entitled to, § 3155. Notice of, waiver of. by waiver of presentment, § 3159. Notice of, who may give, § 3142. Notice, where holder an agent, how given, § 3149. Presentment to drawee in case of need, necessarv before bill dis- honored, § 3188. INDEX. 1183 NEGOTIABLE INSTRUMENTS. XII. Dishonor and notice, (Con- tinued.) Presumption of dishonor on failure to accept, § 3133. Waiver of notice, does not waive presentment, § 3159. Xni. Protest. Foreign bill, by whom made, § 3226. Foreign bill, delay in, when excused, § 3230. Foreign bill, how made, § 3227. Foreign bill, notice of dishonor, protest necessary, § 3225. Foreign bill, notice of, given how, § 3231. Foreign bill, time for making, § 3229. Foreign bill, waiver of, does not waive presentment and notice, § 3160. Foreign bill, waiver of protest and effect of, § 3232. Foreign bill, waiver of protest, effect of, where indorser requires pro- test, § 3232. Foreign bill, when excused, § 3230. Foreign bill, when made, § 3228. Waiver of, waives presentment and notice, § 3160. XIV. Payment. Ability and willingness to pay at,f)lace of payment, effect of, § 3130. Acceptor for honor, when to pay, § 3206. Agent to collect, duty of, § 2021. Bearer, payable to, how construed, § 3101. Bill of exchange is payable where, § 3176. Conditions that mav be demanded on, § 3137. Damages for dishonor of foreign bill, §§ 3234-3238. Days of grace are not allowed, § 3181. Extinction by payment, § 3164. Extinction in general, what constitutes, § 3164. Extinguishes, § 3164. For honor, §§ 3203, 3204. For honor, holder is bound to accept, § 3204. For honor, memorandum on bill for whose honor made, § 3205. For honor, notice of, § 3205. For honor, of foreign bill, declaration for whom honor made, § 3233. For honor, of foreign bill, reimbursement of payor, what necessary to, § 3233. For honor, reimbursement of payor, § 3205. Instrument need not be surrendered on, when, § 3137. Instrument payable at particular time and place, § 3130. Lost note, indemnity, § 3137. Offer of, what equivalent to, § 3130. Of part of bill in set, § 3175. Order, instrument payable to, how construed, § 3101. Paj'able at .particular time and place, ability and willingness to pay there, effect of, § 3130. Payable to bearer, how construed, § 3101. Payable to person "or to his order," how construed, § 3101. Payor for honor, reimbursement of, § 3205. Payor for honor, to give notice of payment, § 3205. Place of, not specified, where payable, § 3100. Place of payment of bill of exchange, § 3176. Eeeeipt may be demanded before, § 3157. Surrender of instrument a condition of, § 3137. Time of, days of grace are not allowed, § 3181. Time of, not specified, when payable, § 3099. Time or place of, need not be designated, § 3091. 1184 INDEX. NEGOTIABLE INSTRUMENTS. (Continued.) XV. Destruction by Fire. Re-establishment and re-execution of, action lies for, § 3415. Re-establisliment and re-execution of bond of indemnity to beViven, § 3415. NEGROES. License for marriage between and whites not to issue, § 69. Marriages between negroes and whites void, §§ 60, 69. NEUTER GENDER. Included in masculine, § 14. NEUTRAL PAPERS. Implied warranty that ship will carry, in marine insurance, § 2688. NEWSPAPERS. Assessment and delinquency of stock, publication of, § 336. Reports of public meetings are privileged, §§ 47, 48. NOMINAL DAMAGES. When allowed, § 3360. NOMINATION. * Trustee, of, § 2287. NON-ISTEGOTIABLE INSTRUMENTS. Transfer of non-negotiable instrument, § 1459. NON-PROFIT CO-OPERATIVE, AGRICULTURAL, VITICULTURAL, AND HORTICULTURAL ASSOCIATIONS. Articles of incorporation, alteration, amendment, and repeal of, § 653o. Articles of incorporation, or certified copies of, as evidence, § 653o. Articles of incorporation, subscribing, acknowledging, and filing, § 653o. Articles of incorporation to be prepared and filed, § 653o. Articles of incorporation, what to contain, § 653o. Attorney-general may inquire into right to do business by quo war- ranto, § 653s. By-laws, adoption of, majority vote of members necessary, § 653p. By-laws, code provisions applying to, § 653p. By-laws may provide for what, § 653p. By-laws, when and how adopted, § 653p. Capital stock, has not, § 653n. Consolidation with co-operative corporations authorized, § 653q. Consolidation with other co-operative corporations, manner of, § 653q. Co-operation with other associations or corporations, authorized, § 653q. Directors, number of, § 653o. • < Dissolution of, § 653q. Existing corporation incorporating under statute relating to, powers of, § 653r. Existing corporation, incorporation under statute relating to, effect of, and rights, duties, and liabilities of members, § 653r. Existing corporations, how incorporated under statute relating to, § 653r. Existing corporations may incorporate under statute relating to, § 653r. Formation of, three or more persons may form, § 653m. Formation of, who may form, § 653m. INDEX. 1185 NON-PROFIT CO-OPERATIVE AGRICULTURAL, VITICULTURAL, AND HORTICULTURAL ASSOCIATIONS. (Continued.) Membership, assignment, directors may prescribe terms and condi- tions of, § 653n. Membership, assignment of, directors may consent to, § 653n. Membership, assignment of, directors* may provide for or against, § 653n. Membership, certificate of to be issued, § 653n. Membership, not assignable, § 653n. Membership, purchaser at execution or successor in interest not en- titled to, § 653n. Membership, terms and conditions of, by-laws may provide, § 653n. Members, new, admission of, § 653o. Members, new, voting powers and property rights of, § 653o. Members, rights and liabilities, by-laws may prescribe, § 653n. Members, who may become, § 63;3n. Powers of, enumerated, §§ 653m, 653q. Profit, not carried on for, § 653m. Property rights and interests of members, § 653o. Purposes of, § 653m. Terms of existence cannot exceed fifty years, § 653o. Voting power of members, § 653o. NON-PROFIT CO-OPERATIVE CORPORATIONS. Act does not apply to what corporations, § 653z. Articles, amended, how, § 653y. Articles of incorporation, admissibility as evidence, § 653v. Articles of incorporation, subscribing acknowledging, and filing, § 65 3 v. Articles of incorporation, what to set forth, § 653v. By-laws, code of, to be adopted, within one month, § 653w. By-laws, code provisions applying to, § 653w. By-laws, majority must assent to, § 653w. By-laws may regulate assignment or transfer of certificates on mem- bership, § 653w. By-laws, what may provide for, § 653w. Capital stock, not to have, § 653u. Certificate of incorporation, issuance of, § 653v. Consolidation, effect of, § 653x. Consolidation, how effected, § 653x. Corporations, code provisions do not apply to what, § 653za. Co-operation with other corporations, right of, § 653x. Corporations, act code provisions do not apply to what, § 653za. Directors, number of, § 653v. Directors, removal of and filling vacancies, § 653w. Dissolution of, § 653x. Fees and payments, § 653w. Formation of, authorized, § 653t. Formation of, majority of corporators to be residents, §§ 653t, 653v. Formation of, three or more persons may form, § 653t, Formation of, when complete, § 653v. Member, any ])erson may tjecome, § 653u. Members, expulsion of and appraisement of property rights, § 653w. Members, expulsion of and forfeiture of rights, §§ 653w, 653x. Members, new, admission of, S§ 653v, 653w. Members, number of, §§ 653u, 653w. ifembers, property rights and interests of, § 653v. Members, qualifications of, § 653w. Civ. Code — 75 1186 INDEX. NON-PROFIT CO-OPERATIVE CORPORATIONS. (Continued.) Members, rights and liabilities of, § 653u. Members, voting power of, § 653v. Members, withdrawal or expulsion, by-laws may provide for, § 6o3w. Membership, assignee, purchaser on execution, or distributee not en- titled to rights of, § 656u. Membership, certificate of, assignment or transfer, by-laws may reg- ulate, §§ 653u, 6o3w. Membership, certificate of, assignment or transfer of, directors may consent to, § 653u. Membership, certificate of, not assignable, § 653u. Membership, certificate of to be issued, § 6o3u. ■ Membership not assignable, § 653u. Membership, terms and conditions of, §§ 653u, 653w. Powers of, §§ 653t, 653x. Profit, business not carried on for, § 6.53u. Property rights and interests of members, § 653v. Property rights, provision for unequal, effect of, § 653zb. Purposes of, § 653t. Eight to do business, attorney-general only may inquire into on quo warranto, § 653z. Voting power jof members. § 653v. Voting power, provision in b^'-laws as to unequal, effect of, § 6o3zb. Voting power, provision in by-laws for unequal, provisions of code as to majority vote, etc., do not apply in case of, § 653zb. NON-RESIDENT. Adoption proceedings, consent of, §§ 224, 226. Alien, inheriting, when must make claim within five years, § 672. Assignment for creditors by, §§ 3449, 3451. Transfer of stock by, § 326. NON-USER. See Corporations, XVII. NOTARY. Acknowledgment, may take, §§ 1181, 1182, 1183. Acknowledgment or proof in state, § 1181. Acknowledgment or proof out of state, § 1182. Acknowledgment or proof out of United States, § llS3. Bill must be protested by, when, § 3226. Making a protest, may give notice, § 3231. NOTE. See Negotiable Instruments. NOTICE. See Negotiable Instruments. Abandonment of ship, to insurer, §§ 2721, 2722. Abatement of nuisance, of, § 3503. Acceptance of guaranty, notice of, § 2795. Action for possession, not necessary before, § 793. Actual, is what, § 18. Adverse claim to deposit, to depositor, § 1825. Agent, to, as notice to principal, § 2332. Appropriation of water, of, §§ 1415, 1^16. Assessment of stock, of, §§ 335-339. Baggage, sale of for charges, notice of, § 1861. Carrier or depositary, necessary to stoppage in transit, § 3079. Change of corporation's principal place of business, § 321a. Change of name as, § 2454. Consolidation of religious, social, or benevolent corporations, of, § 605. INDEX. 1187 NOTICE. (Continued.) Constructive, facts to put one on inquiry, § 19. Constructive, from knowledge of facts putting on inquiry, § 19. Constructive, is what, § 18. Delay in, how waived, § 2636. Delinquent assessment, §§ 337-339. Depositary must give, to real owner, § 1826. Directors and stockholders, posting, § 321. 'Dishonor, of, §§ 3]11-3159. Duty of gratuitous depositary ceases upon, § 1847. Ejectment without notice, § 793. Election of directors of corporation, § 302. Filing inventory of wife's property as, § 166. Five days' notice of transfer of stock in trade to be recorded, § 3440. Form, § 3143. Found, of thing, § 1865. Freight, of arrival of to consignee, § 2120. Freight, of storage of, to consignee, § 2121. Guaranty, notice of default, § 2808. Hirer of personal property may repair after, § 19.57. Hirer of real property may repair after, § 1942. Hiring terminated by notice of death or incapacity, § 1934. Homestead, notice of hearing on petition to sell, § 1248. Innkeeper exempted by giving, § 1860. Inquiry, of facts to put on, § 19. Instruments not avoided against purchaser with, § 1228. Insurance, of loss under, § 2633. Insurance, of loss under, defects in not specified, waived, § 2635. Insurance company, to. See Insurance. Inventory of wife's separate property, record of, is, § 166. Is actual or constructive, § 18. Lease, notice of termination. See Landlord and Tenant. Lease, terms of, may be changed by notice, § 827. Letter of credit, to writer of, § 2865. Life insurance policy, of transfer, § 2765. Marriage settlement, record of, is notice, § 180. Meeting, of election by stockholders, § 302. Meeting to remove directors, of, § 310. Mining claim, of location of. See Mines and Mining. Partnership, dissolution of, §§ 2453, 2454, 2509. Partnership, of renunciation of future profits, relieves partners, § 2417. Pledge, of sale of, §§ 3002, 3003. Principal or agent, notice to one when deemed to other, § 2332. Principal's default, guarantor not entitled to, § 2808. Protest, of, § 3231. Purchaser for value without, §§ 856, 869. Eecord as, § 1207. Eecord as notice. See Eecording. Record of assignment of mortgage as, §§ 2934, 2935. Record of conveyance as, § 1207. Record of instrument as, § 1213. Re-enter, of intention to, § 791. Restoration of burnt corporate records, notice of, § 365. Sale of deposit in danger of perishing, in case of, § 1837. Selection of one of several alternatives, § 1449. Selection of place of delivery, § 1756. Stockholders, of meeting to continue corporate existence, § 287. 1188 INDEX. NOTICE. (Continued.) Tenancy at will, termination of, § 789. Tenant at will, to quit, §§ 789, 790. Tenant to give landlord, of adverse proceeding, § 1949. Terminates employment, § 1999. Termination of hiring, § 1934. Trustee, of adverse interests, § 2233. Unrecorded instrument valid iDetween parties with, § 1217. Waiver of defects in, § 2635. NOVATION. Defined, § 1530. " Made by a contract, § 1532. Modes of, § 1531. Eescission of, grounds for, § 1533. Subject to rules governing contracts, § 1532. Substitution of obligation, § 1531. Substitution of parties, § 1531. NUISANCE. Abatement does not preclude action, § 3484. Abatement not to prejudice right to damages, § 3484. Abatement of a private, manner of, § 3502. Abatement of a private, notice, § 3503. Abatement of a private, right of, § 3501. Abatement of a private, when allowed, § 3502. Abatement of a public, § 3491. Abatement, public, how may be abated. § 3495. Abatement, public, who may abate, §§ 3494, 3495. Abatement, successive owners neglecting to abate, liable, § 3483. Action for private, § 3501. Action for public, §§ 3491, 3493. Defined, § 3479. Indictment for public, §§ 3491, 3492. Information for public, §§ 3491, 3492. Notice of abatement, § 3503. Preventive relief in case of, § 3369. Private, action for, § 3501. Private action for a public, §§ 3491, 3493. Private defined, § 3481. Private, remedies for, §§ 3501, 3502. Public, defined, § 3480. Public, private action for, § 3493. Public, remedies for, § 3491. Eemedies for a private, §§ 3501, 3502. Eemedies for a public, §§ 3491, 3495. Specific relief in case ofy § 3369. Statute, anvthing done or maintained under express authority of, is not, § 3482. Successive owners, neglecting to abate, liability of, § 3483. Time does not legalize a public, § 3490. What not deemed a, § 3482. NUMBER. Singular or plural, of words in code, construction of, § 14. NUNCUPATIVE WILL. See Wills, X. INDEX. 1189 OATH. Defined, § 14. Directors of banks, of. Appendix, tit. "Banking," § 11. Homestead appraisers, § 1250. Includes affirmation or declaration, § 14. Officer taking proof of instrument may administer, § 1201. Person solejunizing marriage may administer, § 72. Person taking acknowledgment authorized to administer, § 1201. Testify includes, § 14. Trust companies, by, how taken. Appendix, tit. "Banking," § 90. OBLIGATIONS. See Contracts. Accord, defined, § 1521. Accord, effect of, § 1522. Act of God excuses performance, § 1511. Alteration of contracts. See Alteration; Contracts, IX. Alternative, impossibility of performance of one, effect of, § 1451. Alternative, nullity of one, effect of, § 1451. Alternative, right of selection, how lost, § 1449. Alternative, right of selection, who has, § 1448. Alternative, selection of must be in its entirety, § 1450. Alternatives indivisible, selection in case of, § 1450. Application of payment to, § 1479. Application of performance, by creditor, § 1479. Application of performance, by debtor, § 1479. Application of performance, law makes, when, § 1479. Application of performance, rescission of, § 1479. Application of performance, who may make, § 1479. Arises from agreement or operation of law, § 1428. Arising from obligation of law, how enforced, § 1428. Assuming, by accepting benefits, § 1589. Conditional, when, § 1434. Condition concurrent, defined, § 1437. Condition concurrent, performance of, § 1498. Condition, performance excused on refusal of other to perform, § 1440. Condition precedent defined, § 1436. Condition precedent, performance of, § 1498. Condition subsequent defined, § 1438. Condition, unlawful, void, § 1441. Conditions, impossible, void, § 1441. Conditions, kinds of, § 1435. Conditions of forfeiture, construed strictly, § 1442. Conditions precedent must be performed before performance can be required of another, § 1439. Conditions repugnant, void, § 1441. Consideration, existing legal obligation as, § 1606. Consideration, ratable proportion when performance prevented, § 1514. Consideration. See Contracts, IV. Construction of contracts. See Contracts, VII. Contribution between joint or joint and several obligors, § 1432. Covenants, apportionment of, § 1467. Covenants running with land, §§ 1460-1468. Created how, § 1428. Damages, limitation on amount of, for breach, § 3358. Defined, § 1427. 1190 INDEX. OBLIGATIONS. (Continued.) Duty to abstain from injury to others, § 1708. Extinguishment by performance, §§ 1473-1479. Extinguishment of offer by performance, §§ 1485-1505. Forfeiture, construed how, § 1442. Imposed by law, §§ 1708-1717. Impossible conditions, void, § 1441. Infant cannot disaffirm what, § 37. Infringements upon right of others, duty to abstain from, § 170S. Injury to another, duty to abstain from, § 1708. Interest stopped by offer of performance, § 1504. Interpretation, general rules of, § 1429. Interpretation. See Contracts, VII. Joint and several, contribution between obligors, § 1432. Joint, contribution between obligors, § 1432. Joint debtors, release of, § 1543. Joint, obligation imposed upon several presumed to be, § 1431. Joint, presumption in favor of, § 1431. Joint, presumption that obligation is, how only overcome, § 1431. Joint. See Joint. Joint, several, or joint and several, may be, § 1430. Law, creating and enforcing by oj^eration of, § 1428. Law imposes what, §§ 1708-1717. Mistake. See Mistake. Novation. See Novation. Offer of performance, effect of, § 1485. Payment, application to obligations, § 1479. Payment detined, § 1478. Payment, tender, and deposit extinguish demand, § 1500. Pecuniary, extinction by tender, § 1500. Performance, application of act by way of, § 1479. Performance by one joint debtor, effect of, § 1474. Performance, compensation for delay, § 1492. Performance, conditional offer of, § 1494. Performance, creditor's retention of thing he refuses to accept, effect of, § 1505. Performance, custody of thing offered, § 1503. Performance, delay in, compensation, § 1492. Performance, directions by creditors, effect of, § 1476. Performance excused by what, §§ 1440, 1511. Performance extinguishes, § 1473. Performance, notice that one will not perform, § 1440. Performance of conditions essential, when, § 1439. Performance, offer of, ability and willingness essential, § 1495. Performance, offer of, conditions, must be free from, § 1494. Performance, oft'er of, creditor's retention of thing he refuses to ac- cept, § 1505. Performance, offet of, custody and care of thing offered, § 1503. Performance, offer of, effect on accessories, § 1504. Performance, offer of, extinguishes, § 1485. Performance, offer of, manner of, § 1493. Performance, offer of, may be made dependent upon performance of conditions, § 1498. Performance, offer of, objections not stated are waived, § 1501. Performance, offer of, objections to, § 1501. Performance, offer of partial, of no effect, § 1486. Performance, offer of, refusal to accept before offer of, effect of, § 1515. INDEX. 1191 OBLIGATIONS. (Coutinued.) Performance, offer of, retention of thing which creditor refuses to ac- cept, effect of, § 1505. Performance, offer of, stops interest, § 1504. Performance, offer of, time of, §§ 1490, 1491. Performance, offer of, time of, delay, effect of where it can be com- pensated, § 1492. Performance, offer of, time of, delay in and compensation for, § 1492. Performance, offer of, title to thing offered passes, when, § 1502. Performance, offer of, to be in good faith, § 1493. Performance, offer of, to be made by whom, § 1487. Performance, offer of, to be made where, §? 1488, 1489. Performance, offer of, to be made where and to whom, §§ 1488, 1489. Performance, offer of, waiver of objections to, § 1501. Performance, offer of, where no time fixed, §§ 1490, 1491. Performance, offer of, willingness essential, § 1495. Performance, offer of. See Contracts, VIII, 4; Offer of Performance. Performance, part, extinguishes obligation, when, § 1524. Performance, partial, effect of, §§ 1477, 1524. Performance prevented by creditor, effect of, §§ 1511, 1512. Performance prevented, other than by creditor, ratable proportion of consideration, § 1514. Performance, production of thing to be delivered not necessary, § 1496. Performance, receipt for property delivered, § 1499. Performance, refusal to accept before offer of, effect of, § 1515. Performance, thing offered to be kept, how, by obligor, § 1503. Performance, thing offered to be kept separate, § 1497. Performance, title to thing offered, § 1502. Performance to one joint creditor, effect of, § 1475. Performance. See Contracts, VIII. Property, is, § 1458. Eeceipt, right to require, § 1499. Eefusal to accept offer of performance, §§ 1511, 1515. Eelease extinguishes, § 1541. Release, general, extent of, § 1542. Eelease of joint debtor's, effect of, § 1543. Satisfaction defined, § 1523. Satisfaction, part performance in, § 1524. Statute of frauds, in general, § 1624. There may be ownership of obligations, § 655. Transferable, rights arising out of are, § 1458. Transfer of burden of, right of, § 1457. Transfer of non-negotiable instruments, manner of, § 1459. Transfer of non-negotiable instrument, right of, § 1459. Transfer of non-negotiable instrument taken subject to defenses, § 1439. Trustee, of. See Trusts. Unlawful conditions, void, § 1441. , Waiver of objections to offer of performance, § 1501. Warranty on sale of written instrument, § 1774. Where prescribed in code, § 1715. OCCUPANCY. Title by, §§ 1000, 1006. Title, when acquired by, § 1007. Title by when only warrants action to quiet title, § 1006. 1192 INDEX. OFFER. Absolute, must be, § 1.585. Acceptance, how made, § 1582. Of guaranty, not binding, § 2795. Eevoked, how, § 1587. Eevolved, when, § 1586. What deemed, § 1584. OFFER OF PERFORMANCE. See Contracts, VIII, 4; Obligations. ' Ability and willingness, essential, § 1496. Ability and willingness, when equivalent to, § 3130. By any person exonerates surety, § 2839. By whom made, § 1487. Compensation for delay, with, § 1492. Conditions may be made dependent upon performance of, § 1498. Conditions concurrent, of, when necessary, § 1439. Conditions, to be free from, § 1494. Conditions, precedent or concurrent, offer may be made dependent on performance of, § 1498. Custody and care of thing offered, § 1503. Effect of, on accessories of obligation, § 1504. Effect of refusal to accept performance made before, § 1515. Exonerates surety, by any person, § 2839. Extinguishes obligation, § 1485. Extinguishes obligations for payment of money, when, § 1500. How to be kept by debtor, § 1503. Interest, stops running of, § 1054. Lien redeemed by, § 2905. Manner of, § 1493. Must be unconditional, § 1494. Objections to, if not stated, are waived, § 1501» Of concurrent conditions, when necessary, § 1439. Partial, of no effect, § 1486. Party must be able to perform, § 1495. Produced, thing offered need not be unless offered accepted, § 1496. Passes title to personal property under executory agreement of sale, §1141. Receipt may be required upon, § 1499. Refusal to accept performance before, effect, § 1515. Retention of thing which creditor refuses to accept, effect of, § 1505. Thing offered need not be produced, § 1496. Thing offered to be kept sejjarate, § 1497. Thing offered, vests in creditor, when, § 1502. Time of, §§ 1490, 1491. Time of, delay in and compensation for, § 1492. Time of, delav in, effect of where it can be compensated, § 1492. To be in good faith, § 1493. To whom made, § 1488. Unconditional, must be, § 1494. What excuses, §§ 1440, 1511. When made, §§ 1490, 1491. Where made, § 1489. Whom made to, § 1488. Who to make, § 1487. With compensation for delay, § 1492. OFFICE. Injunction not granted to prevent exercise of, § 3423. Interest, stops running of, § 1504. INDEX. 1193 OFFICER. Acknowledgments, deputy may take, § 1184. Acknowledgments, what, may take, §§ 1180-1183. Apprentice, officer binding out, to inquire into age, § 270. Apprenticeship, indenture of by, copy to be filed with county clerk, §273. Apprenticeship, power to bind to, § 269. Contract between and private persons, uncertainty presumed caused by whom, § Ifiol. Conveyance by, interpreted in favor of grantor, § 1069. Joint authority, majority may exercise, § 12. Lien of, for levy of writ, § 3057. Powers of officers authorized to take proof of instruments, § 1201. Privileged, communications when are, § 47. . Seal, how affixed, § 1628. Uncertainty in contract of officer, presumption as to, § 1654. OLOGRAPHIC WILL. See Wills, XI. OMISSIONS. In will, how corrected, § 1340. OMITTED CHILDREN. Inheritance by. See Succession; Wills, VII. OPPRESSION. Avoids contract, §§ 1567, 1569. Exemplary damages in case of, § 3294. Interest as damages in case of, § 3288. OPTION. As to delivery, notice of, must be given, § 1756. As to place of offering performance, § 1489. Beneficiary, of, on breach of trust, § 2237. Negotiable instrument giving, § 3090. Of owner on confusion of goods, § 1032. Payee, of, as to payment, § 3090. Selection between alternatives, §§ 1448-1450. Time for exercise of, § 1756. Waived, how, § 1756. ORAL OBLIGATION. See Statute of Frauds. ORDERS. See Secret Societies. ORPHAN. Apprenticing. See Apprenticeship. Or|)han asylum. See Orphan Asylum. ORPHAN ASYLUM. Adoption of child from, § 224. Adoption of child, managers may consent to, § 224. Establishing by corporation, § 595. Guardians for infants maintained in. Appendix, tit. "Infancy." Managers have preferred right to guardianship, when, § 246. Managers may consent to apprenticeship, when, § 265. Managers may consent to adoption of child when, § 224. OSTENSIBLE OWNER. Pledge by, §2991. 1194 INDEX. OVEE^INSURANCE. By successive policies, § 2622. Effected by simultaneous policies, contribution, § 2621. Return of premium on, § 2620. OWNERSHIP. See Property. PARENT AND CHILD. See Infancy. Abandoned child, parent forfeits guardianship of, § 246. Abandonment by parent is relinquishment of custody and earnings, §211. Abduction of parent or child, forbidden, § 49. Abuse, parental, remedy for, § 203. Adoption of child. §§ 221-230. See Adoption. Adult child, compensation and support of, § 210. Allowance to parent out of child's property for its support, § 201. Apprenticeship. See Apprenticeship. Assault, protection against, § 50. Authority of parent ceases, when, § 204. Children, support and maintenance of. See Divorce. Compensation of adult child, § 210. Custody, decree awarding, modifying, § 199. Custody, exclusive, suit for, power of court on, § 199. Custody, exclusive, when husband or wife may sue for, without divorce, § 199. Custody, father cannot transfer without mother's eo^isent, § 197. Custody in general, § 197. Custody of child, effect of abandonment, § 211. Custody of child of annulled marriage, § 85. Custody of illegitimate, mother entitled to, § 200. Custody on abandonment by father, § 197. Custody, parent may relinquish, § 211. Custody, preference between parents, §§ 197, 246. Custody, services and earnings, right to as between father and mother. §§"l97, 246. Custody, services and earnings, right to, on death, desertion or neglect of parent, § 197. Custody, rules for awarding, § 246. Custody, when parents separated, §§ 198, 214. Custody, wife may obtain, when, § 214. Custody. See Divorce. Domicile of child, parent may determine, § 213. Duty of child to support piarent, § 206. Earnings of child, effect of abandonment, § 211. Earnings of child may be paid to him, § 212. Earnings of child, parent may relinquish, § 211. Earnings of child, who entitled to. § 197. Earnings of illegitimate child, mother entitled to, § 200. Education of child, duty of parents, § 196. Education of child, obligations of parents, § 196. Education when parents separated, § 19S. Emancipation of child, § 211. Enticement of child from parent forbidden, §49. Failing to maintain chilil forfeits guardianship, § 246. (ruardian, appointment of, ends parental authority, § 204. (ruardian of property, parent has no power as, without appointment, §242. INDEX. 1195 PARENT AND CHILD. (Continued.) Guardianship. See Guardian and Ward. Illegitimacy of child, how proved, § 195. Illegitimate child, how legitimated, ? 230. Illegitimate child, mother entitled to custody, services, and earnings, § 200. Illegitimate child. See Bastards; Ligitimacy. Legitimacy of children born after dissolution of marriage, when pre- sumed, § 194. Legitimacy of children born in wedlock, presumed, § 193. Legitimacy of children, who may dispute, § 195. Legitimatized, child becomes by marriage of parents, § 215. Majority, attainment to ends parental authority, § 204. Marriage of infant ends parental authority, § 204. Mother, when entitled to custody of children, § 197. Necessaries furnished child, liability of parent, § 207. Necessaries furnished child, parent not liable for, when, § 208. Necessaries furnished parent, adult child's promise to pay binding, §206. Necessaries, third person may furnish child, when parent neglects to, § 207. Parental abuse, remedy for, § 203. Parental authority ceases, when, § 204. Parent, allowance to, out of child's property for child's support, § 201. Permitting child to remain in orphan asylum without notice forfeits guardianship, § 246. Posthumous children, property rights of, § 698. See Posthumous Children. Pretermitted child or issue of child, rights of, § 1307. Property of child, allowance out of, for support, § 201. Property of child, parent has no control over, § 202. Eelinquishment of services and custody of child, § 211. Relinquishment presumed from abandonment, § 211. Residence of child, parent may determine, § 213. Seduction of daughter, forbidden, § 49. Services of adult child, no compensation for, § 210. Services of child, effect of abandonment, § 211. Services of child, father cannot transfer without mother's consent, § 197. Services of child, parent may relinquish, § 211. Services of child, wh5 entitled to, § 197. Services of illegitimate child, mother entitled to, § 200. Stepfather's rights and liabilities, § 209. Support furnished child, parent not liable for, when, § 208. Support of adult child, no compensation for, § 210. Support of child, allowance to parent out of child's property, § 201. Support of child enforced when freed from parental domination be- cause of abuse, § 203. Support of children, obligation for, § 196. Support of child, when parent dies without providing for, remedy, §205. Support of parent, duty of child as to, § 206. Support, mutual obligations of ])arent and child, § 206. Support of wife's children, husband not liable for, § 209. Support, reciprocal duties of, between parent and children, § 206. Wages may be paid to child, when, § 212. "Wages, assignment of bv child, written consent of parent necessary, § 955. 1196 INDEX., PARENT AND CHILD. (Continued.) Ward, marriage of, terminates guardianship, § 2.54. Will, child born after making of will, rights of, § 1306. Wrongful injury, protection against, § 50. PAROL OBLIGATIONS. See Statute of Frauds. PARTIES. Third person can enforce contract for his benefit, § 1559. PARTITION. Easement, apportionment of, on § 807. PARTNERSHIP. Account, mutual liability of partners to, § 2il2. Account, partners must, for profits of adverse business, § 2438. Acknowledge barred debt, liquidating partner cannot, § 2462. Acts in bad faith, whether binding, § 2431. Acts that partner cannot do, § 2430. Acts that partner has authority to do, § 2429. Admission of new partner can only be by consent, § 2397. Advantage, partner not to obtain over another, § 2411. ' Adverse business, must account for profits of, when, § 2438. Adverse business, partner may not engage in, § 2436. Agent, partner is for firm, § 2429. Agent, partner liable as, § 2443. Agent upon whom summons may be served, designation to be filed with secretary of state, § 2472. Agent upon whom summons mav be served, evidence of appointment, § 2472. Agent upon whom summons may be served, failure to appoint, service on secretary of state, § 2472. Agent upon whom summons may be served, partnership without reg- ular place of business to designate, § 2472. Agreement in writing, partner may bind copartners by, § 2429. Application of property to debts, rights of partners as to, § 2405. Arbitration, partner cannot submit to, § 2430. Assignment for creditors, partner cannot make, § 2430. .Assignment, partner cannot make, § 2430. Authority of majority of partners, § 2428. Authority of partner, § 2429. Authority, partner has not, to do what acfs, § 2430. Bad faith, whether acts of partner in, binding, § 2431. Banking business, partnership doing, posting list of partners and cap- ital stock. Appendix, tit. "Banking," § 18. Bank act applies to what copartnerships. Appendix, tit. "Banking," §1. Business, separate, partner may not engage in what, § 2436. Busines.s, separate, partner must account for profits of, when, § 2438. Business, separate, what may engage in, § 1437. Certificate of place where summons may be served on, § 1163. Certificate of place where summons may be served on, affidavit on change of residence, § 1163. Compensation, partner not entitled to for services, § 2413. Confess judgment, partner may not, § 2430. Confidential, partners' relations are, §§ 2410, 2411. Damages, liability of partner for, where he dissolves firm, § 2451. Debts barred, liquidating partner cannot revive, § 2462. Debts, partner may require application of firm property to, § 2405. INDEX, 1197 PARTNERSHIP. (Coiitimied.) Defined, § 2395. Dissolution, agreeme^nt not to go into business, § 1675. Dissolution as to one i-iartner notwithstanding agreement, § 2451. Dissolution, by lapse of time, § 2450. Dissolution, by will of partner, §§ 2450, 2451. Dissolution, death dissolves, S 2450. Dissolution, judgment of, § 2450. Dissolution, judgment of, partner entitled to, when, § 2452. Dissolution, liability of partner after, to third persons dealing with firm, § 2453. Dissolution of, liability thereafter to persons without notice, § 2453. Dissolution of, notice bj' change of name, § 2454. Dissolution of, notice of, §§ 2453, 2454. Dissolution, notice of, liabilit}' of partner to third persons without, § 2453. Dissolution, notice, personal, when necessary, § 2453. Dissolution, notice, publication of, in paper, when sufficient, § 2453. Dissolution, on renunciation by partner, §§ 2417, 2418. Dissolution, partial, at will of one partner, § 2451. Dissolution, j^artner dissolving firm liable for damages, when, § 2451. Dissolution, partner's powers after, §§ 2458-2462. Dissolution, transfer of interest dissolves, § 2450. Dissolution, war dissolves, § 2450. Dissolution, what works, § 2450. Dissolution, when partner entitled to, § 2452. Duration of, in general, § 2449. Fictitious name, action cannot be maintained until certificate filed, § 2468. Fictitious name, affidavits of publication of certificate as evidence, § 2471. Fictitious names, certificate, failure to file, cannot maintain action, § 2468. Fictitious names, certificate, filing with county clerk, §§ 2466, 2468. Fictitious names, certificate, publication of, § 2466. Fictitious name, certificate, time to file and publish, § 2468. Fictitious name, certificate, signing and acknowledging, § 2468. Fictitious name, certificate, what to state, § 2466. Fictitious name, certified copy of register and proof of publication of, as evidence, § 2471. Fictitious name, county clerk to keep register of firms doing business under, § 2470. Fictitious name, effect of not filing and publishing certificate, § 2468. Fictitious name, filing and publishing certificate, §§ 2466, 2468. Fictitious name, foreign, need not file nor publish certificate, § 2467. Fictitious name, new certificate on change of partner, § 2469. Fictitious name, register of, as evidence, § 2471. Fiduciary, partners' relations are, §§ 2410, 2411. Foreign, under fictitious name, need not file nor publish certificate, § 2467. Formation, consent necessary to, § 2397. General, defined, § 2424. General partners, liability of, § 2500. General, what partnerships are, § 2424, Good faith, acts in bad faith, whether binding, § 2431. Good faith, partners must exercise toward each other, §2411, Good-will. See Good-will. Indemnification of partner for losses and risks, § 2412. 1198 INDEX. PARTNERSHIP. (Continued.) Insurance by partner, rights of partner, form of policy, § 2590. Insurance, not avoided by transfer between. partners, § 2557. Interest of partner in property, extent of, §§ 2402, 2403. Judgment, partner may not confess, § 2430. Letters of credit, license from superintendent of banks necessary be- fore issuing. Appendix, tit. "Banking," § 13. Letters of credit, license to issue, fee for. Appendix, tit. "Banking," §13. Letters of credit, right to issue. Appendix, tit. "Banking," § 13. Liability of general partners, § 2500. Liability of one held out as partner, § 2444. Liability of partners for each other defined by title on agency, § 2443. Liability of partners to third persons, § 2442. Liable, one not partner is not unless held out as such. § 2445. Lieu of partner on shares of co-partners for payment of debts, § 2405. Lien of partner on shares of co-partners for payment of general bal- ance due, § 2405. Liquidation, acts of partner how far binding in favor of third per- sons, § 2460. Liquidation, partner has only power prescribed in code, § 2458. Liquidation, powers of partners in, § 2461. Liquidation, what partner may and may not do, § 2462. Liquidation, who may act in, § 2459. Liquidation, who may not act in, § 2460. Losses, partner's share in, § 2403. Losses, when division of implied, § 2404. Majority of partners govern. §§ 2428, 2520. Miuiug,"^§§ 2511-2520. See Mining Partnership. Name, change of, sufficiency of, as notice of dissolution, § 2454. Negotiable instruments, power of liquidating partner as to, § 1462. New obligation, liquidating partner cannot create, § 2462. New partner, not admitted without consent of all, § 2397. Ostensible partner, liability of, § 2444. Partial dissolution at will of one partner, § 2451. Partner may engage in separate business when, § 2437. Partner many not engage in what business, § 2436. Partner must account for profits of separate business, when, § 2438. Partner, no one liable as, unless held out as such, § 2445. Partner not to gain any advantage, § 2411. Partner's acts in bad faith, whether binding, § 2431. Partners are liable for each other's acts as agents, § 2443. Partners .are trustees for each other, § 2410. Partners, change of, in firm under fictitious name, certificate, § 2469. Partners, good faith to be observed between, § 2411. Partnership interest in property, defined, § 684. Partner's liability to third persons, § 2442. Partner, whether may dispose of whole property, § 2430. Profits, agreement to divide, implies agreement to divide losses, § 2404. Profits of partner belong to firm, § 2435. Profits of separate business, when partner must account for, § 2438. Profits, partner's share in, § 2403. Property acquired with firm funds presumed to be partnership, § 2406. Property of, consists in what, § 2401. Property of, partner may require application of, to debts, § 2405. Projjerty of, partner's interest in, §§ 2402, 2403. Property of, share of partner in, how determined, § 2403. INDEX. 1199 PARTNEKSmP. (Continued.) Property of, whether partner may dispose of whole, § 2430. Eeimbnrsement of partner for expenses, § 2412. Eenuneiation by partner, effect of, § 2417. Eenuneiation by partner, effect of on future profits, § 2418. Renunciation of future profits exonerate partner from liability to third persons, § 2417. . Restraint of trade, contracts in, on dissolution of, § 1675. Revive barred debt, liquidating partner cannot, § 2462. Sale of all firm property, power of partner as to, § 2430. Separate business, partner may engage in, when, § 2437. Separate business, partner must account for profits of, when, § 2438. Separate business, partners may not engage in, when, § 2436. Services, partner not entitled to compensation for, § 2413. Share of oartner in property of, how determined, § 2403. Ship, joint use of, does not create, § 2396. ShiiJ-owners, whether partners, § 2396. Special partnership, §§ 2477-2510. See Special Partnership. Termination of, how long partnership continues, generally, § 2449. Trustees, partners are, for each other, § 2410. Trustees, provisions of code as to, apply, § 2410. PART PERFORMANCE. Effect of, on oral agreement for sale of realty, § 1741. Of obligations, §§ 1477, 1524. PARTY-WALL. Right to use wall as, § 801. PASSENGER CARRIERS. Accommodations and treatment of carriers, §§ 2100, 2103. Amount of baggage that must be carried without charge, § 2180. Attention, reasonable degree of to be given passengers, § 2103. Badge, employees when to wear, § 488. Baggage, bicycle as, § 2181. Baggage, bicycle as, but one need be carried, § 2181. Baggage, bicycle need not be crated, § 2181. Baggage, carried and delivered immediately, § 2183. Baggage, checking, § 2183. Baggage, consists of what, § 2181. Baggage, defined, § 2181. Baggage, liability for, § 2182. Baggage, lien of carrier on, § 2191. Baggage limitation of liability by accepting ticket or bill of lading with conditions, § 2176. Baggage, obligation to carry, § 2180. Baggage, obligation to carry on stage, § 2180. Baggage, railway checks to be affixed to, § 479. Baggage, refusal of check, liability for, § 479. Baggage, refusal to deliver, damages, § 479. Baggage, samples, wares, etc., of commercial travelers, § 2181. Baggage, to be carried on same train with passenger, § 2183. Baggage unchecked, is at owner's risk, § 2183. Baggage, what includes, § 2181. Baggage, when to be carried and delivered, § 2183. Care required of carrier for reward, § 2100. Care required of gratuitous carrier, § 2096. Damages for breach of obligation to receive passengers, § 3315. Delays, carriage to be without unreasonable, § 2104. 1200 INDEX, PASSENGER CARRIERS. (Coutinued.) Deviation, carriage to be without unreasonable, § 2104. Duty of carriers of persons, in general, § 21U0. Dutj' of railroad to accommodate and transport, § 481. Ejection of passenger, fare after, § 2190. Ejection of x'assenger, iiow and where made, § 2188. Ejection of passenger, right of, §§ 4S7j 2188. Failure to start on schedule time, penalty, § 2170. Fare, additional, when passenger without ticket, § 2189. Fare after ejection, § 2190. Fare, ejection for refusal to pay, §§ 487, 2188. Fare, lien for, and how regulated, § 2191. Fare, penalty for overcharging by street-railroad, §§ 501, 504. Fare, refusal to exhibit or surrender ticket, § 487. Fare, refusing to pay, § 487. Fare, train rates where passenger has no ticket, § 2189* Fares, when may be demanded, § 2187. Freight and construction trains, care required, §§ 483, 484. Gratuitous, care required of, § 2096. Inside room, duty to furnish, § 483. Lien for fare and how regulated, § 2191. Limitation on liability, assent to, on accepting ticket, §§2174, 2176._ Limitations on liability, §§ 2174-2176. See Carriers. Mortgage of property where to be recorded, § 2961. Not liable for injury to passenger violating rules, § 484. Overloading not permitted, §§ 2102, 2185. Passengers on baggage, wood, gravel or freight car, duties towards, §§483, 484. Passengers, damages for not receiving, § 3315. Passengers, damages for refusal to carry, § 482. Passengers, duty to, in general, §§ 2100-2104. Passengers, ejection of, §§487,2188,2190. Passengers, safe and fit vehicles for to be provided, § 2101. Passengers, seats for, §§ 483, 2185. Passengers, ship-master may engage, § 2376. Passengers, treatment of, § 2103. Passengers, vehicles not to be overcrowded, §§ 2102, 2185. Passenger who had not paid for before entering train, may be made to pay train rates, § 2189. Penalty, proof of agency in action against street railway for, § 506. Rules and regulations, §§ 465, subd. li, 484, 2186. Rules, ejection for refusal to obey, § 2188. Rules, injuries to passenger while violating, § 484. Schedule of times for starting to be published, § 2170. Seats for passengers, duty to provide, § 2185. Ship, passengers on, master's power over, § 2038. Skill required of, § 2100. Speed, carriage to be at reasonable rate of, § 2104. Speed, rate of, delay's and deviations, § 2104. Stage, obligation to carry baggage on, § 2180. Starting, must start at time and place announced, § 2172. Tickets, conditions in, limiting liability, elfect of, § 2176. Tickets, duty to furnish, § 505. Tickets, duty to issue, § 490. Tickets, penalty for failure to furnish, § 505. Tickets, refusal of j^assenger to exhibit or surrender, ejection of pas- senger, § 487. Tickets, refusal to exhibit or surrender, § 487. INDEX. 1201 PASSENGER CARRIERS. (Continued.) Tickets, refusal to issue, penalty, § 490. Tickets, rights of holders, S 490. Tickets to be good six months, § 490. Time, failure to start on, penalty, amount, recovery, and disposition of, § 2170. Treatment of passengers, § 2103. . Vehicles not ,to be overcrowded, §§ 2102, 2185. Vehicles, obligation to provide, § 2184. Vehicles, sufficient number of, to be provided, § 2184. Vehicles to be fit and safe, § 2101. Vehicles, want of fitness not excused by any degree of care, § 2101. Who are, § 2168. PASTURE. Eight to, §§ 801, 802.- Lien for, § 3051. PATENT. May be recorded without acknowledgment, § 1160. PAUPERS. Remedy where parent dies without providing for support of child, § 205. PAWN. See Pledge. PAWNBROKER. See Pledge. PAYMENT. See Sales. Agent, to, § 2335. Application of, by debtor, § 1479. Application of, by creditor, § 1479. Application of, by law, § 1479. Application of, duty to see to, on payment to trustee, § 2244. Application of, order of, § 1479. Application of, rescission of, § 1479. Defined, § 1478. Effect of offer of, on accessory of obligation, § 1504. Effect of off'er of and deposit in bank, § 1500. Honor, for, how made, § 3205. Honor, for made when, § 3203. Indemnity, when necessary to claim, § 2778. Liquidated debt, of less than, § 1524. Negotiable instrument, conditions that may be imposed on, § 3137. Negotiable instrument, of, made to whom, § 3164. Negotiable instrument payable to fictitious person is payable to bearer, § 3103. Negotiable instrument, presentment for payment, § 3131. Otter of, and deposit, extinguish obligation, § 1500. Payee's option as to manner of, § 3090. Receipt, debtor may require, § 1499. Surrender of instrument as condition of, § 3137. Tender and deposit extinguish obligation, § 1500. Tender, extinction of obligation by, § 1500. Tender stops interest, § 1504. Time of, where no time specified, § 1657. PENAL DAMAGES. See Penalty. Exemplary damages. See Damages. Civ. Code — 76 1202 INDEX. PENAL DAMAGES. (Continued.) Failure of tenant to quit after notice, § 3344. Fire, negligently setting, § 3364a. Injuries inflicted in a duel, §§ 3347, 3348. Injuries to trees or underwood, § 3346. Tenant willfully holding over, § 3345. PENAL LAW. Specific or preventive relief not granted to enforce, § 3369. PENALTY. Bank act, penalties under. Appendix, tit. "Banking," II. Carrier not starting on time, amount, recovery and disposition of, §2170. Carrier, penalty for refusal to give checks, § 479. Contract with, may be specifically enforced, § 3389. Corporation, failure to file amended copies of articles, § 362. Corporation, officer of, refusing to issue, enter, or transfer certificate of stock, for, § 324. Damages, penal, §§ 3344-3348. See Penal Damages. Excessive charges by street railway, for, § 501. Failure of bridge, chute, etc., corporation to make report, § 530. Failure of building and loan association to make report, §^45. Failure of railroad to ring bell or sound whistle, § 486. Failure of mortgage insurance companies to file report, § 453gg. Foreign building and loan corporation, failure to comply with stat- utes, § 646. Injunction to enforce, § 3369. Liquidated damages or, §§ 1670, 1671. Mining corporation, failure to post monthly statements, § 590. Mining corporation, refusal or neglect of president to issue order for inspection, § 590. Mining corporation, where superintendent fails to obey order for examination, § 589. Not to be enforced by specific or preventive relief, § 3369. Overcharge by railroad, for, § 489. Overcharge by street railway, for, §§ 501, 504, 506. Penal damages, §§ 3344-3348. See Penal Damages. Preventive relief not granted to enforce, § 3369. Kailroad rates, penalty for raising, duty and powers of attorney- general, § 494. Railroad rates, penalty for raising without consent of authorities, §494. Raising rates after sale of railroad to another corporation, § 494. Recovery by purchaser of franchise under execution, § 390. Refusal to furnish gas, penalty for, § 629. Speciiic enforcement of contract with, § 3389. Specific relief not granted to enforce, § 3369. Street-car ticket, for not furnishing, § 505. Surety not liable beyond, § 2836. Telegraph property, for injuring, § 538. Telephone property, malicious injury to, § 538. Toll, collecting unlawful or excessive, § 518. Toll gatherer unreasonably detaining person, § 518. Toll, penalty for avoiding, § 519. Tolls, for charging unauthorized, §§ 514, 518. Treble rent against tenant holding over, §| 3344, 3345. Trespassing on property of wagon-road corporation, for, § 520. INDEX. 1203 PEOPLE. See Public. PERILS OF SEA. Marine carrier not liable for, § aU)7. What are, § 2199. PERISHABLE. Cargo, power of master to sell, § 2377. Deposit, sale of, § 1837. ' Property, sale for freightage, § 2204. PERJURY. False statements in reports of building and loan association, § 645. False sworn statement to mutual insurance company, § 453j. Land and building corporation may commit, in false report, § 644. PERPETUAL INTEREST. Defined, § 691. PERPETUITIES. See Alienation. Limitation of power of suspension in estates for year, § 770. PERSON. Defined, § 14. Includes corporation, § 14. Third person. See Third Persons. PERSONAL PROPERTY. See Good-will; Property. Accession to, §§ 1025-1033. See Accession. Acquisition, modes of, § 1000. Action, thing in, §§ 953, 954. Chattel interests are what, § 765. Chose in action defined, § 953. Chose in action, transfer and survivorship, § 954. Conflict of law, § 946. Confusion of goods, §§ 1025-1033. Consists of what, § 663. Conversion of, damages for, §§ 3336-3338. Damages, value to buyer, how estimated, § 3354. Damages, value to seller, how estimated, § 3353. Damages, where property has peculiar value, § 3355. Definition, § 663. Delivery of possession to person entitled to, compelling, § 3380. Estates at will are chattel interests, § 765. Estates in, what interests are, § 701. Gift. See Gift. Good-will defined, § 992. Good-will is property, § 655. Good-will, transferable, § 993. Hiring of. See Hiring. Includes what, § 14. Interests in. See Property. Inventions,, property in, §§ 980-985. Law governing, § 946. Letters, property in, §§ 980-985. Lien for repairs or services on, § 3051. Lien on for services performed about. See Services. Minor's contract, respecting personalty not in his possession, § 33. Mortgage of, § 2955. See Chattel Mortgages. Names and classifications of estates in realty, when only apply to, § 702. 1204 INDEX. PERSONAL PROPERTY. (Continued.) • Ownership may exist in what property, § 6.55. Possession of, how recovered, § 3379. Private writings, to whom belong, § 985. — Products of the mind, §§ 980-985. Property is either real or personal, § 657. . Recovery of, §§ 3379, 3380. Shares of stock in corporation, § 32-i. Tare, allowance of, on baled hops, § 995. Thing in action, §§ 953, 954. Title deeds, § 99i. Trade-mark, §§ 655, 991. Transfer of. See Sales; Transfers. Value, how estimated, §§ 3353-3355. What is, § 663. What law governs, § 946. Writings, property in, §§ 980-985. PERSONAL RIGHTS. All citizens to have equal rights in public places, § 51. Denial of equal rights to all citizens, punishment for, § 52. Enumeration of, § 43. Refusal of admission to place of amusement, damages, § 54. Refusal of admission to place of amusement unlawful, § 53. PERSONAL SERVICES. See Services; Specific Performance. PEW. As a servitude, §§ 801, 802. PHRASE. How construed, § 13. Words and phrases. See Words and Phrases. PIER. See Bridge, Ferry, Wharf, Chute, and Pier Corporations. Statutes governing pier corporations govern where owned by indi- vidual, § 531. PILOT. See Shipping. PIONEER SOCIETY. See Religious, Social, and Benevolent Corpora- tions. Limitation on amount of land held by, § 596. Surplus real estate to be sold within what time, § 596. PLACER CLAIMS. See Mines and Mining.. PLEDGE. Apparent owner, by, etfeet of, § 2991. Collection, expenses of, may be deducted, § 3008. Collection of proceeds of securities, disposition of surplus, § 3008. Collection of securities when due, right of, § 3006. Contract deemed a, when, § 2987. Contracts, what are deemed to be, § 2987. Debtor's misrepresentation of value, effect of, § 2999. Defined, §§ 2986, 2987. Delivery essential, § 2988. Duties and liabilities of pledgee for reward, § 2997. Factor may not, § 2368. Foreclosure' of right of redemption instead of sale, right of, § 3011. Foreclosure of right of redemption, manner of, § 3011. 1 INDEX. 1205 PLEDGE. (Continued.) Foreclosure of right of redemption, pledgee may pureahse at, § 3011. Gratuitous pledge-holder can exonerate himself, how, § 2995. Gratuitous pledge-holder's liabilities, § 2998. Increase of thing covered bj', § 2980. Lien dependent on possession, § 2988. Lienor may pledge, § 2990. Liens, subject to jirovisions of chapter on, § 2877. Misrepresentation of value of pledge, remedy of creditor, § 2999. Negotiable instrument may contain, § 3092. Ostensible owner, pledge by, effect of, § 2991. Pledgee assumes obligations of depositary for reward, § 2997. Pledge-holder assumes obligations of depositary for reward, § 2997. Pledge-holder, gratuitous, assumes obligations of gratuitous depos- itary, § 2998. Pledge-holder, gratuitous, right to exonerate himself from under- taking, § 2995. Pledge-holder must enforce pledgee's rights, § 2996. Pledge-holder's obligations, §§ 2995, 2996. Pledge-holder, parties may agree upon, § 2993. Pledge-holder, right of to exonerate himself from obligation, § 2995. Pledge-holder, who is, § 2993. Pledge lender, rights of, § 2992. Pledge lender's right to withdraw property, § 2994. Pledge lender, who is, § 2992. Possession, delivery of, is essential, § 2988. Possession, lien is dependent on, § 2988. Property pledge as securitv for another, rights of owner, §§ 2992, 2994. Eeal owner cannot defeat pledge by apparent owner, § 2991. Sale, auction, must be by. § 3005. Sale, auction, notice of, § 3005. Sale, auction, pledgee or pledge-holder may purchase at, § 3010. Sale before pledgee's claim is due, § 3009. Sale, demand not necessary on refusal to perform, § 3004. Sale, demand of performance a prerequisite, § 3001. Sale, demand of performance, waiver of, § 3004, Sale, expenses of, may be deducted, § 3008. Sale, foreclosure of right of redemption instead of, right of, § 3011. Sale, how made, § 3005. Sale, judicial, foreclosure of right of redemption by, § 3011. Sale, judicial, pledgee may be authorized to purchase, § 3011. Sale, notice may be waived, § 3003. Sale, notice of, to pledgor, § 3002. Sale, notice of, what not a waiver of. § 3003. Sale of evidence of debt, right of, § 3006. Sale of securities, manner of, § 3005. Sale of securities, right of, § 3006. Sale, pledgor may demand sale of securities, when, § 3007. Sale, pledgee may retain all that can become due, § 3009. Sale, pledgee, or pledge-holder, may purchase at auction sale, § 3010. Sale, surplus to be paid pledgor, § 3008. Sale, waiver of demand of performance, § 3004. Sale, when pledgee may make, § 3000. Securities, collection and sale of, §§ 3006, 3007. Shares of stock in name of pledgee, how represente Manager, who is, § 2070. Managing owner of ship defined, § 2070. Managing owner presumed to have no compensation, § 2072. Master, abandonment of ship, duty to save money and valuables, § 2041. Master, abandonment of ship, liability for articles lost, § 2041. Master, abandonment of ship, power as to, § 2040. 1246 INDEX. SHIPPING. (Continued.) Master, accounting by, where he trades on his own account, § 2042. Master a general agent for owner, §§ 2373, 2375. Master, appointed by owner, § 2034. Master, authority as agent, law governing, § 2044. Master, authority, general agent of owner for all matters, § 2373. Master, authority terminated by abandonment, § 2381. Master, authority to borrow money, § 2374. Master, authority to contract, in general, § 2376. Master, authority to impress private stores where ship's supply fails, § 2039. Master, authority to make repairs, § 2376. Master, authority to ransom ship, § 2380. Master, care required of, § 2043. Master, cargo, a general agent for owners of, § 2375. Master, cargo, authority as regards generally, § 2375. Master, cargo, perishable or damaged, sale of, § 2377. Master, cargo, power to sell or hypothecate, §§ 2375, 2377, 2379. Master, cargo, sale of, by, liability of owner, § 2385. Master, disability of, mate takes his place, § 2048. Master, duty of where voyage broken up, § 2707. Master, duty to reship where voyage broken up, §2707. Master has a lien, § 3055. Master holds during owner's pleasure, § 2034. Master's liability for acts of persons employed on ship, § 2383. Master, liability for negligence of pilot, § 2384. Master, lien of is not dependent on possession, § 3055. Master may be charterer, § 1959. Master may engage cargo, § 2376. Master may engage passengers, § 2376. Master may enter into charter-party in foreign port, § 2376. Master may impress private stores, when, § 2039. Master may hypothecate freight-money, when, § 3021. Master may hypothecate ship, when, §'§3019, 3020. Master may procure supjilies, § 2376. Master not to trade on own account, § 2042. Master, personal liability on contracts, § 2382. Master, power over passengers, § 2038. Master, power over seamen, § 2037. Master, power to confine and punish seamen, § 2037. Master, power to confine passengers, § 2038. Master, power to hypothecate freightage, § 2377. Master, power to sell ship, § 2378. Master, respondentia by, § 3038. Master to be on board, when, § 2035. Master to take pilot, when, § 2035. Mate cannot ship goods, § 2064. Mate defined, § 2048. Mate, disabled, right to wages, § 2060. Mate, discharge, right of and grounds for, § 2050. Mate engaged and discharged how, § 2050. Mate has lien for wages, § 3056. Mate, laws of Congress govern, § 2066. Mate, lien of, for wages, is not dependent on possession, § 3056. Mate, lien of. for wages, superiority of. § 3056. Mate, maintenance of, during sickness, § 2061. Mate not bound to ship in unseaworthy vessel, § 2051. Mate, office of. on disability of master, § 2048. Mate, provisions, right to when commences, § 2055. INDEX. 1247 SHIPPING. (Continued.) Mate taking master's place loses no rights as mate, § 2048. Mate, wages begin when. § 2055. Mate, wages forfeited by theft or tort, § 2063. Mate, wages forfeited on justifiable discharge, § 2063. Mate, wages where mate dies, § 2062. Mate, wages where vessel captured, § 2060. Mate, wrongfully discharged or driven from ship, rights of, §§ 2057, 2060. Meeting of sailing vessels, rules for passing, § 970. Meeting of ships, breach of rules for, implies willful default, § 972. Meeting of ships, rules for passing, § 970. Meeting of steamers in narrow channels, rules for passing, § 970. Meeting of steamers on different courses, rules for crossing, § 970. Meeting of steamers, rules for passing, § 970. Mortgage of, code sections not applicable to, § 2971. Mortgage of ship, where to be recorded, § 2958. Narrow channels, rules for steamers in, § 970. Navigation, foreign and domestic defined, § 962. Navigation, rules of, § 970. Negligence, breach of rules implies willful default, § 971. Negligence, breach of rules of navigation, liability, § 971. Negligence, master's liability for, § 2043. Negligence of employee, master's liability for, § 2383. Neutral papers, duty to carry, § 2688. Officers, laws of Congress govern, § 2066. Owner for voyage, and his liability, § 965. Owner, respondentia by, § 3037. Partners, whether ship-owners are, § 2396. Part owners, jurisdiction of controversy between, § 964. Part owner may be a charterer, § 1959. Part owners, whether partners, § 2396. Passengers, master may engage, § 2376. Passengers, master's power over, § 2038. Passengers. See Passenger Carriers. Perils of sea are what, § 2199. Perils of sea, liability for loss by, § 2197. Pilotage, § 2036. Pilot, navigation of ship devolves upon, § 2036. Pilot's negligence, liability of owner for, § 2384. Pilot, when master must take, § 2036. Hansom of ship, master's power, § 2380. Eecording transfer of vessels, governed by feudal laws, § 1173. Eegistry governed by federal statutes, § 966. Repairs, master may procure, § 2376. Respondentia. See Respondentia. Rules for passing of ships meeting, § 970. Rules for passing, breach of implies willful default, § 972. Rules ior passing, breach of, liability, § 971. Rules of navigation, § 970. Sale of ship, delivery not necessary, § 3440. Sale of ship, when master may order, § 2378. Salvage, in general, § 2079. Salvage. See Salvage. Seamen. See Seamen. Seaworthiness defined, § 2682. Seaworthiness. See Insurance, XV; Seaworthiness. Several owners, jurisdiction on disagreement, § 964. Ship defined, § 960. 1248 INDEX. SHIPPING. (Continued.) Shipping defined, § 96U. Ships, foreign and domestic, distinguished, § 963. "Ships" or "shipping," what included in terms, § 960. Shipwreck, deposit, involuntary, in case of, § 1815. Stowage, § 2117. Telegraph cable, liability for dragging, § 537. Transfer of interest in ship, how made, § 1135. Transfer of interest in ship, statute of frauds, § 1135. Transfer of ships, recording of, governed by federal laws, § 1173. Transfers, mode of, §§ 1135, 1176. Unseaworthy ship, seamen not bound to go on, § 2051. Voyage and deviation, insurance, §§ 2692-2697. Wharfinger. See Warehousemen. Wrecks. See Wrecks and Wrecked Property. SIGNATURE. Attorney in fact, by, how made, § 1095. Includes mark, § 14. In indorsement, §§ 3109, 3110. Mark by, two witnesses necessary, § 14. Of oflflcer taking acknowledgment, § 1193. Subscribing of testator's name by another, manner of, § 1278. To will. See Wills, I. SIGNS. There may be ownership in. § 655. SINGULAR. Includes plural, § 14. SINKING FUND. To pay railroad bonds, § 457. SKILL. See Care. Borrower must exercise what, § 1888. Carrier of persons must use, § 2100. Employee must use all he possesses, § 1984. Employee must use reasonable, § 1983. Injury arising from want of ordinary, § 1714. Voluntary depositary must use, § 2078. SLANDER. Defamation is effected by, § 44. Defined, § 46. Motive not inferred in certain privileged communications, § 4S. Privileged communications, what are, § 47. Eight to protection from, § 43. SOCIAL ASSOCIATIONS. See Religious, Social, and Benevolent Cor- porations. And incorporation thereof, §§ 593-604. SOCIAL CORPORATIONS. See Religious, Social, and Benevolent Cor- porations. Articles of incorporation, what to set out, § 594. No cumulative voting unless by-laws provide, § 307. SOCIETIES FOR PREVENTION OF CRUELTY TO CHILDREN AND ANIMALS, .^id to be given to by magistrates, police, sheriffs, etc., § 607c. Allowances to by city, amount of and how paid, § 607f. INDEX. ' 1249 SOCIETIES FOR PREVENTION OF CRUELTY TO CHILDREN AND AinMALS. (Continued.) Association already formed, code applies to, § 607d. Association with name similar to pre-existing society, code does not apply to, § 607d. Children may be arrested and brought before court for examination, .when, § 607g. Children may be taken from person having custody, when, § 607g. Children, proceedings for protection of, who may institute, § 607g. Children taken from custody of another, how disposed of, § 607g. Compensation, monthly allowance to, by supervisors, § 607e. Complaints for cruelty to children or animals, § 607b. Fines, penalties and forfeitures, what inure to benefit of, § 607e. Formation, majority of corporators to be citizens and residents of state, § 607. Formation of, authorized, § 607. Formation of, number of corporators, § 607. Humane officer, acting as without authority a misdemeanor, § 607f. Humane officers, appointment, filing certified copy of approval with county clerk, § 607f. Humane officers, appointments, how made, § 607f . Humane oflScers, appointment^ report of to judge and duty of judge, § 607f. Humane officers, arresting offender, showing badge, § 607f. Humane officers, issuing false statements as to a misdemeanor, § 607f . Humane officers, number that may be appointed, §607f. Humane officers, oath of, § 607f. Humane officers, powers of, § 607f. Humane officers, qualifications of, § 607f. Humane officers, record of bv county clerk, duty as to and fee for, § 607f. Humane officers, revocation of appointment, right of and proceedings on, § 607f. Humane officer, resisting a misdemeanor, § 607f. Humane officer.s, right to carry weapons, § 607f. Magistrates and police officers to aid corporation and its officers, § 607c. Pre-existing corporations, provisions of code extend to, § 607d. Proceedings for welfare of child, institution of, § 607g. Property, limit upon amount that can be held by, § 607a. Property, power to receive and dispose of, § 607a. Prosecution of persons guilty of cruelty, § 607b. SOLDIER. Nuncupative will, § 1289. SOLE CORPORATIONS. See Religious, Social, and Benevolent Corpora- tions. Religious society may become, when, § 602. SPECIAL PARTNERSHIP. Affidavit as to sums contributed, § 2481. Banking, cannot be formed for, § 2-477. Business of, general- partners only can do, § 2489. Certificate, acknowledgment and record of to be filed, § 2480. Certificate, affidavit of publication, filing of, § 2484. Certificate, affidavit of jiublication of, as evidence, § 2484. Certificate, effect of not publishing, § 2483. Civ. Code — 79 1250 INDEX. SPECIAL PARTNERSHIP. (Continued.) Certificate, failure to file and publish on change in firm, becomes general, § 2507. Certificates, false statements in, liability for, § 2480. Certificate, manner of publication, § 2483. Certificate of, to state what, § 2479. Certificate on renewal or continuance of, § 2485. Certificate, partners severally to sign, § 2479. Certificate, recording where partHership does business in different counties, § 2480. Certificate, to be published, § 2483. Certificate, where new partner or change in firm, §§ 2507, 2508. Compliance with code necessary to formation of, § 2482. Dissolution, is subject of, § 2509. Dissolution, manner of, § 2509. Effect of false statement in certificate of, § 2480. Effect of special partner withdrawing capital, § 2495. Estopped to question existence of, who is, § 2509. Formation of, § 2477. Formation of, compliance with code essential, § 2482. Fraudulent conveyances by special, § 2496. General and special partners, may consist of, § 2478. General partner may sue and be sued alone, § 2492. General partners only can do business of, § 2489. General partner, special partner when liable as, § 2501. General, special to what extent is, § 2424 . General, when becomes, §§ 2483, 2495, 2507. Insolvency, creditors preferred to special partner, § 2491. Insolvency, preferential assignments void, § 2496. Insurance, cannot be formed for business of, § 2477. Interest and profits of special partner, § 2494. •Judgment confessed by special partner void as to creditors, § 2496. Liability of one held out as special partner, § 2444. Liability of ostensible partner, § 2444. Liability of the special partners, §§ 2500-2502. Lien by special partner, void as against creditors, § 2496. Losses, special partner need not refund profits to meet, § 2494. Name of special partner not to be used unless with word "limited," § 2510. New partner, certificate, filing and publishing in case of, § 2507. New partner, how admitted, § 2508. None without compliance with code, § 2482. Of what may consist, § 2478. Only the general partners may act, § 2489. Preference given by, void, § 2496. Preference to creditors over special partner, § 2491. Preferential transfer by special, void as to creditors, § 2496. Profits and interest of special partner, § 2494. Purposes for which may be formed, § 2477. Renewal of certificate in case of, § 2485. Special and general partners, may consist of, § 2478. Special partner becomes general on withdrawing capital, § 2495. Special partner, liable as general partner, when, §§ 2501, 2502. Special partner, liability of, §§ 2501, 2502.' Special partner, loan by, to firm, § 2491. Special partner may advance money for and take security, § 2491. Special partner may investigate affairs and advise, § 2490. Special partner may not withdraw capital, § 2493. Special partner, name of not used, unless with "limited,'" § 2510. INDEX. 1251 SPECIAL PARTNERSHIP. (Continued.) Special partner, postponed to creditor on insolvency, § 2491. Special partner, power of, §§ 2490, 2491. To what extent a general partnership, §2424. What transfers void, § 2496. Who cannot charge persons as general partners, § 2503. Who may form, § 2477. Who may not question existence of, § 2503. Withdrawal of capital by special partner, §§ 2493, 2495. SPECIFIC PERFORMANCE. Act or consent of third person not enforceable, § 3390. Act or consent of wife, agreement to procure not enforceable, § 3390. Acts which one cannot lawfully perform, not enforced, § 3390. Agreement to sell by one without title, not enforceable, § 3394. Arbitration, agreement to submit to, not enforced, § 3390. Censent obtained by fraud, or concealment, not enforced, § 3391: Consent obtained, by mistake or surprise, not enforced, § 3391. Consent obtained by mistake, when enforced, § 3391. Consideration, inadequate, contract not enforced, § 3390. Contract signed by one party only, of, § 3388. Contracts that cannot be enforced specifically, §§ 3390-3392. Devisee or legatee, against, § 1301. Distinction between real and personal property, § 3387. Enumeration of cases, where will be denied, §§ 3390-3392. Forfeiture, not granted to enforce, § 3369. Liquidation of damages not a bar to, § 3389. Mutuality of remedj^ a prerequisite, § 3386. One must be able to give free title, § 3394. Parties against whom contract not enforced, § 3390. Parties who cannot have, § 3392. Part performance, specific performance in case of, § 1741. Pecuniary compensation, when adequate, § 3387. Penalty, imposition of, not a bar, § 3389. Penalty, not enforceable by, § 3369. Performance, full and fair, necessary, § 3392. Performance, partial, when granted, § 3392. Personal service, obligation to employ one in, not enforced, § 3390. Personal service, obligation to render, not enforced, § 3390. Presumption as to, when breach can be relieved by pecuniary com- pensation, § 3387. Realty, of oral ■ agreement for transfer of, on part performance, § 1741. Reformed contract, of, § 3402. Relief against parties claiming under person bound to perform, § 3395. Relief in damages, distinction between presumptions in case of realty and personalty, § 3387. Right to, generally, § 3384. Specific real property, how recovered, § 3375. Specific relief granted only in cases specified in code, § 3274. Specific relief. See Specific Relief. Title free from reasonable doubt necessary, § 3394. Uncertain agreement not enforced, § 3390. When denied, §§ 3390-3392. When may be had, §§ 3366, 3384. SPECIFIC RELIEF. See Specific Performance. ■ Delivery of personalty to owner, compelling, § 3380. Forfeiture, not enforceable by, § 3369. 1252 INDEX. SPECIFIC RELIEF. (Continued.) Given in no other cases than specified in code § 3274. How given, § 3367. Judgment for possession or title of realty, § 3375. Ma}- be granted as provided by laws of state, § 3366. Nuisance, in case of, § 3369. Penal statute not enforceable by, § 3369. Penalty not enforceable by, § 3369. Possession of realty, how recovered, § 3375. Preventive relief, § 3368. Kecovery of personal property, §§ 3379, 3380. Specific real property, how recovered, § 3375. SPORT. Eight of conducting as easement, § 801. STAGE. See Passenger Carriers. Obligation to carry baggage on, § 2180. STALLION. Lien of owner of stallion used for propagation, and how enforced, §§3062-3064. STAMP. None required on accident insurance contract, § 448. STATE. Islands belong to, when, § 1016. Preference by carrier to, § 2171. Property, may hold as private proprietor, § 669. Property of, what lands are, § 670. Water, title to or use of is in people of, § 1410. STATE LAND. Letters patent lost, recording certified copy and effect of, § 1160. Letters patent may be recorded without acknowledgment, § 1160. Eailroad may take wood and earth from, § 476. Eight of railroads in or over, §§ 474-478. STATUTE OF FRAUDS. Acceptance of bill of exchange must be in writing, § 3193. Agency, contract of, § 2309. Agent, agreement employing to bu}' or sell realty, § 1624. Assignment for creditors, §§ 3458, 3459. Assignment for creditors, transfers by sheriff to assignee on, to be written, § 3458. Auctioneer's memorandum, §§ 1624, 1798. Bequeath, agreement to, § 1624. Broker, agreement employing to buy or sell realty, § 1624. Contract not in writing through fraud enforceable, § 1623. Conveyance, writing necessary to transfer of real property, § 1091. Debt, default, or miscarriage of another, agreement to answer for, § 1624. Devise, agreement to, § 1624. Exchange, contract of to be written, when, § 1805. Guaranty, §§ 1624, 2793, 2794. Guaranty by factor need not be written, § 2794. In general, § 1624. Lease, agreement for, longer than year, § 1624. Lease by agents, authority of agent to be written, § 1624. Lifetime of promisor, agreement not to be performed in, § 1624. INDEX. 1253 STATUTE OF FRAUDS. (Coutinued.) , Manufacture, agreeineut for, not within, § 1740. Manufacture, contract to, § 174U. Marriage, agreement upon consideration of, § 1624. Marriage, promise of, § 1624. Memorandum of auctioneer, § 1624. Memorandum to be written and signed by party to be charged, § 1624. Memorandum, what to contain, §§ 1624, 1739, 1741. Mortgage, creation of, § 2922. Mortgage, power of attorney to execute, § 2933. Mortgage, renewal or extension of, § 2922. Oral contract may be enforced unless writing required, § 1622. Oral, enforcing against fraudulent party, § 1623. Oral, transfer may be enforced, when, § 1052. Oral, what contracts may be enforced, § 1622. Part performance of oral contract for sale of realty, effect of, § 1741. Real estate broker, contract employing, § 1624. Realty agreement relating to, § 1624. Realty, contract for sale, §§ 1091, 1741. Realty, grant of, § 1091. Realty, part performance of agreement for sale- of, effect of, § 1741. Sale of choses in action, when within, § 1739. Sale of personalty over $200 is within, §§ 1624, 1739. Sale of personalty over $200, where purchaser receives part or pays part, § 1739. Sales at auction, memorandum of auctioneer, § 1624. Sales of things in action, § 1624. Sales over $200, §§ 1624, 1739. Ship, transfer of interest in, § 1135. Specific performance, contract signed by one party, § 3388. Suretyship, effect of, on agreement for, § 1624. Trust, transfer of interest in, § 1135. What agreements to be in writing, §§ 1624, 1739-1741. Will, agreement to provide for one in, § 1624. Wine sale, when need not be in writing, § 3440. Writing necessary to transfer of interest in realty, § 1091. Writing supersedes oral stipulations, etc., § 1625. Year, contract not to be performed within, § 1624. STATUTE OF LIMITATIONS. See Limitation of Actions. STATUTES. Act done under authority of, not a nuisance, § 3482. Code, provisions similar to existing laws, or the common law, how construed, § 5. Code, repeal by, does not revive former law, § 20. Code, statute on subjects covered by repealed, § 20. Code, statutes not continued in force because consistent with, § 20. Construction of code to be liberal, § 4. Contemporaneous construction is the best, § 3535. Infant cannot affirm contract made under authority of statute, § 37. Injunction not granted to prevent enforcement of, § 3423. Interpretation giving effect preferred, § 3541. Interpretation must be reasonable, § 3542. Particular expressions qualify general, § 3534. Repeal of, by code, § 20. Retroactive, code is not, § 3. Revivor of, not worked by code repealing other statutes, § 20. Rights created by, there may be ownership in, § 655. Section, meaning of as used in code, § 14. 1254 INDEX. STEPFATHER. Eights aucl liabilities respecting stepchildren, § 209. STOCK AND STOCKBROKER. See Corporations, XIII. ~ STOCK IN TRADE. Five daj's' notice to be given on assignment of,.§ 3J:40. STOPPAGE IN TRANSIT. See Sales. In general, §§ 3076-30S0. STORAGE. See Deposit; Warehouseman. Carrier may, place freight on, § 2121. Compensation for fraction of week or month, § 1853. Compensation on storage of animals for fractions of week or month, §1853. Defined, § 1851. . Degree of care required of depositary, § 1852. Depositary in, is depositary for hire, § 1851. Finder may put thing on, §§ 186S. How terminated, §§ 1854, 1855. Lien for charges, code provisions governing, § 1856. Lien for charges, depositary has, § 1856. ' Lien for charges, sale of property for, right of, § 1857. Sale of luggage for, right of, § 1857. Sale of perishables for, right of, § 1857. Sale of unclaimed baggage for, § 1862. STRANGER. See Third "Person. Attornment to, § 1948. Grant may inure to benefit of, § 1085. STRATAGEM. Desertion induced by, § 97. STREAM. See TV'aters. STREET. Boundary, street as, § 831. Consent of municipalities to use of by railroads, § 470. Owner presumed to own to center, § 831. STREET-RAILWAY. See Street-railway Corporation. Owned by natural person. la\t governing, § 511. STREET-RAILWAY CORPORATION. See Carriers; Eailroad Corpora- tion. Authority to lay tracks, how obtained, § 497. Brakes on cars, § 501. Cars to be modern, etc., § 501. City reserves right to improve streets, etc., § 507. City owning roads, right of to use tracks of another company, § 499. Code sections, in general, which apply to, § 510. Completion of road, act authorizing. Appendix, tit, "Eailoads." Conditions required on granting right of way, § 498. Crossings, obstructions in making, § 500. Crossing track of another railroad, right of and manner of, § 500. Electricity, restrictions imposed in granting right to use, § 497. Electricity, steam roads permitted to use, § 465a. Elevated, conditions, § 498. Fare in cities over 100,000, act limiting rate of, § 501. Appendix, tit. "Eailroads." INDEX. 1255 STREET-RAILWAY CORPORATION. (Continued.) Franchise, acts relating to sale of and governing conditions of sale. Appendix, tit. "Eailroads." Franchise, conditions and limitations, § 497. Franchise, how obtained, § 497. Franchise, limitation of time within which may be granted. Ap- pendix, tit. "Eailroads." Franchise, proceedings prior to the granting or sale of, § 497a. Franchise, statute validating ordinance granting. Appendix, tit. ''Railroads." Franchise, term of, § 497. License tax on, § 508. Limitations and restrictions, §§ 497, 498. Mail carriers to ride free on. Appendix, tit. "Railroads." Motive power, powers ajid duties in relation to, § 497. Municipal regulations respecting, in general, § 503. Owned by natural person, laws apply to, § 511. Passengers. See Passenger Carriers. Penalty, action for, proof of agency, § 506. Penalty for non-compliance with statute, § 501. Penalty for overcharging. §§ 501, 504. Permitting two or more companies to use same track, authority as to, §499. Permitting two or more companies to use same tracks where tracks are of different gauge, § 499. Rates of fare, § 501. Appendix, tit. "Railroads." Rates of fare, penalty for overcharging, §§ 504, 506. Regulations ancl rules as to, power of city, § 503. Restrictions and limitations, §§ 497, 498. Right of way, restrictions on, § 498. Streets, reservation of right to improve, alter, or repair, § 507. Tickets, penalty for not furnishing, § 505. Tickets, penalty for not furnishing, action to recover, evidence, § 506. Tickets to be furnished, § 505. Time allowed for completion of line, § 502. Time, failure to commence or complete road in time, effect of, § 502. Time for commencement and completion of line, extension of, § 502. Time for commencement of road, § 502. Track, authority to lay obtained how, § 497. Track, for grading purposes, authority to grant, § 509. Track for grading purposes, limit of time, § 509. Track for grading purposes, motive power, § 509. Track, imposing restrictions in grant to lay, § 497. Tracks to be laid how, § 498. Track, two lines, right of to use same, § 499. STREETS. Grading track, granting right for, § 509. Railroads, right of, to use, §§ 465, 470. SUBAGENT. See A gene v. Factor, of, § 2368. Liability of, § 2022. Represents principal, § 2351. Unauthorized apjiointment of, effect of, § 2350. When may he ajipointed, § 2349. SUBJACENT SUPPORT. See Lateral Support. 1256 INDEX. SUBPOENA. Officer takiug ackuowledgnient may issue, § 1201. SUBROGATION. Creditor, by, to securities lield by surety, § 2S54. Insurer, of, in marine insurance, § 2745. Lienor, inferior, right to, § 2904. Person redeeming property subject to lien of, § 2903. Eedemptioner, of, §§ 2903, '2904. Surety, of, §§ 284S, 2849. SUBSCRIBING WITNESS. Proof of writing by, §§ 1195-1197. SUBSCRIPTION. Includes mark, § 14. Mark, by, two witnesses necessary, § 14. To will. See Wills, I. SUBSEQUENTLY ACQUIRED TITLE. Passes by operation of law, § 11U6. Passes by will, § 1312. SUBSTITUTE. Liability of employee for, § 1989. SUCCESSION. Advancement constitutes part of distributiye share, § 1395. Adyancement, death of heir before decedent, § 1399. Advancement, effect of, § 1309. Advancements, value of, determined how, § 1398. Advancements, what are, § 1397. Advancement, when too much or too little, § 1396. After-born child not provided for in will, § 1306. Alien, non-resident, failure to claim, proceedings in case of, §§ 1405, 1406. Alien, non-resident, interest escheats when, § 1406. Alien, non-resident, property escheats subject to charges, § 1407. Alien, non-resident, taking by, time to assert claim, §§ 672, 1404. Aliens may inherit how and when, § 1404. A mode of acquiring property, § 1000. Annulled marriage, of children of, § 84. Bastards, by, § 1387. Bastards, to, § 1388. Bona fide purchaser from one claiming by, effect of will, § 1364. Child, after-born, to be paid out of what part of estate, § 1308. ■ Child born after death of testator, §§ 698, 1298, 1306, 1339, 1403. Child born after execution of wiU, § 1306. Children ventre sa mere, § 1339. Children unprovided for in will, §§ 1306, 1307. Collateral consanguinity, §§ 1390-1393. Community property, on death of husband, § 1402. Community property, on death -of wife, § 1401. Consanguinity computed how, §§ 1389-1394. Consanguinity, direct and collateral, §§ 1390-1393. 'Consanguinity, half blood, § 1394. (Jonveyance by heir good unless will proved within four j-ears, or notice of devise filed, § 1364. Death of beneficiary, before testator, right of heirs, § 1310. Defined, S 1383. INDEX. 1257 SUCCESSION. (Contiuued.) Degrees of kindred, computation of, §§ 1389-1393. Descent, rules of, § 1386. Direct or lineal consanguinity, §§ 1390-1393. lijgcheated property subject to charges, §§ 14U6, 1407. Escheats, §§ 1386, 140o, 1406. Escheat, when occurs, §§ 1405, 1406. Fee, words of succession unnecessary to pass, § 1072. Future interests pass by, § 699. General rules of, § 13S6. Half blood, kindred of, inheritance by, § 1394. Heirs, property of intestate passes to, subject to administration, § 1384. Homestead, succession to, on death of spouse, § 1265. Husband and wife, from each other, §§ 1400, 1402. Illegitimate child, succession by or to. See Legitimacy. Intestate, property of, passes to heirs subject to administration, § 1384. Intestate's estate, rules of descent of, § 1386. Intestate, to estate of, § 1384. Kindred, degrees of, hojv computed, §§ 1389-1393. Liability of successor for decedent's obligations, § 1408. Liability of successors on covenants of decedent, § 1115. • Life insurance may pass by, § 2764. Murderer of decedent not to succeed, § 1409. Not claimed, sale of property and disposition of proceeds, §§ 1405, 1406. Personal and real property pass by, § 1384. Posthumous child, rights of §§ 698, 1306, 1339, 1403. Pretermitted child, by, § 1307. Pretermitted child, effect of advancement to, § 1309. Pretermitted child, out of what part of estate to be paid, § 1308. Proceedings by attorney-general where succession to estate not claimed, §§ 1405, 1406. Property of intestate passes to heirs, § 1384. Eepresentation, by, when takes place, § 1403. Rules of, in general, § 1386. Rules of where one dies intestate, § 1386. Sale under will not affected by succession of omitted children, §§ 1306, 1307. Successor liable for decedent's obligations, § 1408. Will, children unprovided for by, to succeed, §§ 1306, 1307. Words of, not necessary to pass fee, § 1072. SUGGESTIONS. False, when fraudulent, §§ 1572, 1710. SUMMONS. Certificate of place where maj- be served, § 1163. Certificate of place where may be served, affidavit on change of resi- dence, § 1163. Foreign corporations, on. See Corporations, XVIII. Partnership, designation by, of person upon whom summons may be served. See Partnership. Time of issuance in action to recover stock sold for delinquent assess- ment, § 347. SUNDAY. See Holidays. A holiday, § 7. Holiday falling on, § 8. 1258 INDEX. SUPERFLUITY. Does uot vitiate, § 3537. SUPERHUMAN CAUSE. Carrier uot responsible for injury from, § 2194:. Excuses performance, § 1511. • Xo one responsible for what no one can control, § 3526. SUPERIOR JUDGE. May consent to apprenticeship when, § 265. May take acknowledgment, § 1180. SUPERVISORS. Action for parental abuse, § 203. Apprenticeship, consent to, § 265. Apprenticeship, presiding otficer, power to bind to, § 269. Apprentices, may bind out, § 268. Elevated or underground railways, may grant franchise for, § 492. Franchise, act limiting time within whiciT may be granted. Appen- dix, tit. "Eailroads." Franchise, acts relating to sale of and governing conditions of sale. Appendix, tit. "Eailroads," Franchise, act validating ordinance grating. Appendix, tit. "Fran- chises." Franchise for elevated or underground road, majority of frontage to sign petition, § 492. Franchise for underground or elevated road, conditions and terms of, § 492. Franchises for roads for horseless vehicles, § 524. Provision for support of orphan out of property of intestate parent, § 205. Eemedy when parent dies without providing for child's support, § 205. Street railways, permitting two or more to use same tracks, § 499. SUPPORT. Mutual obligations between husband and wife. See Husband and Wife. Mutual obligations between parent and child. See Parent and Child. SUPPORT TO LAND. Eight of more than natural, as easement, § 801. Eight to lateral and subjacent support, § 832. SUPREME COURT. Clerk of, may take acknowledgment, § 1180. Justice of, may take acknowledgment, § 1180. SUPREME JUDGE. May take acknowledgment, § 1180. SURETYSHIP. See Guaranty; Indemnity. Apparent principal may show himself surety, § 2832. Bail, sureties when are called, § 2780. Contribution from co-surety, right of, § 2848. Contribution^ rele/ise as affecting, § 1543. Creditor entitled to securities held by surety, § 2854. Deiinition of surety, § 2831. Exoneration of surety, what acts effect, §§ 2839, 2840,2845. Guarantor, surety has rights of, § 2S44. Interpretation, general rules of, § 2837. Interpretation, strict, § 2836. INDEX. 1259 SXTRETYSHIP. (Continued.) Judgment against surety does not alter relation, § 2838. Letters of credit, §§ 2860-2865. See Letters of Credit. Liability of surety, limit of, § 2836. Not liable beyond express terms of contract, § 2836. Penalty, liability where contract imposes, § 2836. Performance or offer to perform exonerates surety, § 2839. Principal bound to reimburse, § 2847. Principal's property to be taken first, § 2850. Principal, surety may compel performance by, § 2846. Release of surety by performance or offer of, § 2839. Eelease of surety, in general, § 2840. Eeimbursement of surety, § 2847. Securities held by creditor or co-surety, surety entitled to, § 2849. Statute of frauds, effect on contract, § 1624. Subrogation of creditor, § 2854. Subrogation of surety, to rights of principal or co-surety, §§ 2848, 2849. Surety, apparent principal may show himself to be, § 2832. Surety cannot claim reimbursement from third person, § 2847. Surety defined, § 2831. Surety, discharge of, what acts effect, §§ 2839, 2840, 2845. Surety entitled to securities held by creditor, § 2849. Surety exonerated by performance or offer to perform, § 2839. Surety, failure to proceed against principal or pursue remedies, effect of, § 2845. Surety has rights of guarantor, § 2844. Surety, judgment against does not alter relationship, § 2838. Surety, liability, limit of, § 2836. Surety, liability where contract imposes penalty, § 2836. Surety may compel principal to perform, § 2846. Surety may compel principal to pursue remedies he has, § 2845. Surety may require creditor to proceed against principal, § 2845. Surety may require principal's property to be taken first, § 2850. Surety not liable beyond express terms of contract, § 2836. Surety, person indemnifying is a, when, § 2779. Surety, principal is bound to reimburse, § 2847. Surety, right of to contribution, § 2848. Surety, subrogation of, on payment, to rights of principal or co- surety, §§ 2848, 2849. SURGEON. See Veterinary Surgeons. SURPRISE. Contract made by, not specifically enforced, § 3391. SURVEY. Of wagon-road to be filed, etc., § 513. SURVEYOR-GENERAL. Permit to railroads to use state land, § 478. Selection of right of way by corporations sent to, § 478. SURVIVORSHIP. Between co-trustees, §§ 860, 2288. Cbose in action^ survival of, § 954, 1260 INDEA. T TAIL. Estates-tail abolished, § 76^. Interest created by estate-tail, § 763. TARE. Allowance of, on baled hops, § 995. TAX. Covenant for payment of taxes runs with land, § 1463. Encumbrance includes, § 1114. License, on street-railways, § 508. Life tenant's duty to pay, § 840. TECHNICAL WORDS. How construed, §§ 13, 1327, 1645. Not necessary in will, § 1328. TELEGRAPH CORPORATIONS. Act relating to non-profit co-operative corporations does not apply to, § 653za. Amounts to be subscribed and paid in, §§ 293,294. Articles of, to set forth what, § 291. Articles, prerequisites to filing, §§ 293, 294. Care required in transmission of messages, § 2162. Common carrier, telegraph company is not, § 216S. Co-operative business associations, provisions relating to, do not apply to, § 6531. Delivery, duty as to, § 2161. Delivery, within what distance to be made without compensation, §2161. Franchise, property, etc., sale or lease of, § 540. Injury -to, liability, §§ 537, 538. Letters of credit, license for issuing, fee for. Appendix, tit. "Bank- ing" § 13. .' Letters of credit, license from superintendent of banks necessary before issuing. Appendix, tit. "Banking,"' § 13. Liability for delay in or refusal of message, § 2209. May dispose of what rights, § 540. Message, compensation for delivery of, § 2161. Messages, compensation for delivery over one mile, § 2161. Letters of credit, right to issue. Appendix, tit. "Banking," § 13. Messages, damages for not accepting, § 3315. Messages, delivery of, obligations as to, § 2161. Messages, liability for delay or refusal of, § 2209. Messages, order of transmission, § 2207. Messages, postponement or refusal of, damages for, § 2209. Messages, telegraph, carriers of, liability of, §§ 2161, 2168. Oath as to amount subscribed and paid in, § 295. Penalty or malicious injury to, § 538. Poles, etc., manner of erection, § 537. Poles, etc., right to erect, § 536. Bight of way along waters, roads, and highways, § 536. Subaqueous cable, damages for injury to, §§ 537, 539. Subaqueous cable, monument to show location, § 539. Subaqueous cable, notice of location, § 539. Subscription, amount of, as prerequisite to filing articles, §§ 293, 294. Ten per cent of amount subscribed to be paid in, § 294. INDEX. 1261 TELEGRAPH CORPORATIONS. (Continued.) Transfer or lease of property, § 540. Vessel injuring cable, liability, §§ 537, 539. TELEPHONE CORPORATIONS. Act relating to non-profit co-operative corporations does not apply to, § 653za. Care required in transmission of message, § 2162. Common carrier, carriers of messages are, § 2168. Cdnstruction of lines authorized, § 536. Co-operative business associations, provisions relating to do not apply to, § 653 1. Damages for breach of obligation to receive messages, § 3315. Delivery of messages, compensation for delivery over one mile, § 2161. Delivery of messages, obligations as to, § 2161. Franchises, property, or rights of, sale, lease, or assignment of, § 540. Highway, right to erect poles on, granted to, § 53d. Injury to property of, liability for, §§ 537, 538. Lease, sale, or assignment of property, rights, and franchise, § 540. Liability for delay in or refusal of messages, § 2209. Malicious injury to property, liability or, § 538. Messages, fixing times for transmission of, § 2209. Messages, order of transmission of, § 2209. ^ Messages, postponement or refusal of, damages for, § 2209. Poles, etc., manner of erection, § 537. Poles, right to erect, granted to, § 536. Property of, injury to, liability for, §§ 537,588. Bights of way granted to, § 536. Subaqueous cable, liability of vessel for injury to, §§ 537, 539. Subaqueous cable, monument or notice to show location, § 539. Vessel, injury by, to subaqueous cable of, liability for, §§ 537, 539. TENANT. See Landlord and Tenant; Leases. TENANT AT WILL. See Estates at AMll. TENANT FOR LIFE. See Estates for Life. TENANT FOR YEARS. See Estates for Years. Eights in occupancy and use of property, §§ 819, 820. TENANTS IN COMMON. See Co-tenancy. Insurance not avoided by transfer between, § 2557. Interest in common, what, § 685. Interests created are tenancies in common, when, § 686. Mine, delinquent co-owner, notice to and proceedings on, § 1426o. Notice, re-entry after termination of tenancy by, § 79U. Rights in occuxjancy and use of property, §§ 819, S20. Ship-owners, disagreement between, court to determine, § 964, Spouses as, § 161. Tenancy, how terminated, § 789. Where thing made from materials of several owners, § 1030. Wife, when a tenant in common, §§ 161, 164. Will, devisees or legatees take as owners in common when, § 1350. TENDER. And deposit extinguish obligation, § 1500. Interest stopped by, § 1504. Of performance of an obligation, §§ 1485-1505. TENSE. Of words in code, § 14. • . , 1262 -■ INDEX. TESTIFY. Defined, § 14. Includes what, § 14. THEATERS. See Amusements. All citizens to have equal rights, § 51. Denial of equal rights, punishment, § 52. Inciting denial of equal rights, punishment of, § 52. Persons maj- be excluded from, when, § 53. Eefusal of admission to places of amusement, damages, § 54. Refusal of admission to, unlawful, § 53. THING IN ACTION. See Chose in Action. THIRD PERSON. Act of, not to prejudice, § 3520. Agent must deliver to, when, § 2344. Agent's responsibility to, § 2343. Consideration, trust where paid by, § 853. Contracts for benefit of, enforcing, § 1559. Delivery in escrow to, § 1057. Estates for life of, § 766. Grant may inure to benefit of , § 1085. ]VIarine insurance, information of belief of, § 2670. May enforce contract, § 1559. Necessaries furnished child by, §§ 208, 209. Necessaries furnished wife by, § 174. Partner's liability to, § 2442. Pledge may be for security of obligation of, § 2992. Eatification of agent's act not to prejudice, § 2313. Reformation of contract not to prejudice, § 3399. Remainder on estates for life of, §§ 775, 776. Specific performance of contract to procure act of, § 3390. Trustee, involuntary, when is, § 2243. Trust property, when must see to application of, § 2244. Trusts for benefit of, § 2250. Who liable as partners to, § 2444. Who must suffer by act of, § 3543. THRASHING-MACHINE. • Liens of laborers on. See- Services. THREAT. Contract obtained through, voidable, §§ 1567, 1689 Desertion caused by, divorce, § 9S. Menace, defined, § 1570. Partner, by, to obtain advantage, § 2411. Trustee, by, to obtain advantage, § 2228. "\^'ill procured by, void, § 1272. TICKET. See Passenger Carriers. TIDE LANDS. State is owner of, § 670. TIDE-WATER. Owner of land bounded by, § 830. TIMBER. Injuries to, treble damages for, § 3346. Lien of logger for services about. See Services. INDEX. 1263 TIME. Abandonment in marine insurance, tini« of making, § 2719. Adoption of bj'-laws, of, § 301. Alien, claim to take by succession, §§ 672, 1404. Alien must appear and claim property within five years, §§ 672, 1404. Appraisers of homestead, time to file report, § 1252. Appraisement of homestead, notice of time and place of hearing, time to serve, § 1248. Appraisement of homestead, time to apply for on execution against, § 1245. Appropriation of water, time to commence works, §§ 1416, 1420. Articles of incorporation, time to file, § 299. Avulsion, time to reclaim laud, § 10157 Bonds of assignee for creditors, time to file, § 3467. Code takes effect when, § 2. Computation of, § 10. * Contract, when takes effect, § 1626. Corporations to organize and commence business within what time, §358. Creation of interest, of, § 749. Delinquent stock sale, extension of time of, § 345. Development of works on appropriation of water for power, § 1416. Divorce, commencing actions for, § 127. Does not confirm void act, § 3539. Entire, of servant belongs to master, § 2013. Essence, not of, unless expressly declared, § 1492. Financial statement of affairs of corporation, request for by stock- holders, time to file, § 302a. Grant, of delivery, presumption, § 1055. Homestead, appraisement of, proceedings for, §§ 1245, 1248. Inventory on assignment for creditors, time to file, § 3461. Lapse of, defeats divorce, § 111. Lapse of. See Lajjse of Time. Marriage, of commencing action for nullity of, § 83. Meeting, proxy, length of time for which valid, § 32lb. Mining claim, affidavit of performance of annual work, § 1426m. Minority, computing period of, § 26. Notice of termination of lease, § 789. Notice to delinquent co-owner of mine, § 1426o. Notice to insurance company of accident or injury, giving of, § 2633a. Nuisance is not legalized by lapse of, § 3490. Nuncupative will, limitation on time for proving, § 1290. Nuncupative will, to be reduced to writing in thirty days, § 1290. Obligation, time of performance, §§ 1490, 1491. Of enjoyment of property, classification of interests as to, § 688. Of enjoyment of property, fixing, § 707. Notice of dishonor, §§ 3147, 3148. Notice of dishonor by indorser, § 3150. Notice to creditors on assignment by insolvent, §§ 3449, 3468. Performance of contract, § 1657. Performance of obligation, offer of, §§ 1490, 1491. Presumptions arising from lapse of, how rebutted, § 126. Priority in time makes priority in right, when, § 3525. Probate of nuncupative will, of, § 1291. j-'ublication of sale for delinquent assessment, § 339. Railroad may regulate time of trains, § 465. Recording of notice of location of mill site claim, § 1426k. Recording of notice of location of mining claim, §§ 1426b, 1426d, 1426g. 1264 INDEX. TIME. (L'outiuued.) Eedemption from sale of franchise under execution, § 392. Eepreseutatiou in insurance refers to what, § 2577. Eight lo rescind polity, time to exercise, § 2583. ytreet-railway, time to commence and complete road, § 502. Unreasonable lapse of, defined, § 125. Void act is not confirmed by, § 3539. Will, words in, relate to what, § 1336. TITLE. See Title Insurance Corporations. Accession, by, § 1013. See Accession. Acquired subsequently to conveyance passes by operation of law, § 1106. Bona fide purchaser from one in possession, title of, § 1142. Buyer acquires better than seller had, when, § 1142. Damages lor breach of warranty of title of personalty, § 3312. Deeds, title deeds to whom belong, § S/93. Devise, by, § 1311. Exchange, executing contract for, title when only passes, § 1141. Exchange, title passes by, when, § 1140. Executory agreement of sale, when only passes, § 1141. Fee-simple, when presumed to pass, § 1105. Freight, to, trauster of, by transfer of bill of lading, §§ 2127, 2128. Highway, to passes by transfer, § 1112. Instruments evidencing, declared by judgment, recording of, §§ 1159, 1204. Instruments affecting, recording in different counties, § 1218. Inventory of wife's property as notice of, § 166. Judgment for possession or, § 3375. Lien does not transfer, § 2888. Loaned property, of, §§ 1885, 1904. Modes by which property acquired, § 1000. Occupancy, title conferred by, § 1006. Occupancy, by, when only warrants action to quiet title, § lOOG. Personal property, to, what passes by transfer, § 1140. Prescription, by, § 1007. Eedelivery or cancellation of grant does not revest, § 1058. Specific devise or legacy, by, § 1363. Subsequently, acquired inures to mortgage, § 2930. Subsequent!}- acquired, passes by operation of law, § 1106. Subsequently acquired, passes by will, § 1312. Thing ottered in performance, title to, when passes to creditor, § 1502. Transfer of. See Transfer. Transfer, what passes by, §§ 1083, 1105. Trust property, title of grantor of, § 865. Warranty of, damages for breach of, on sale of personalty, § 3312. Warranty of, on sale of personal property', § 1765. Warranty of, to personal property, by agent, § 2323. Water, to, is in people of state, § 1410. What title passes by transfer, §§ 1083, 1105. TITLE DEED. Ownership of, § 994. TITLE INSURANCE CORPORATIONS. Certificate of insurance commissioner necessary before issuing poli- cies, § 453y. Definition of policy of title insurance, § 453v. INDEX. 1265 TITLE INSURANCE CORPORATIONS. (Contiuued.) Departmental business as title insurance and trust company, com- pany doing, provisions of law governing. Appendix, tit. "Bank- ing," § 107. Departmental business as title insurance and trust company, com- pany doing, subject to inspection by superintendent of banks. Appendix, tit. "Banking," § 107. Departmental business, title insurance company doing, compliance with provisions of statute. Appendix, tit. "Banking," § 106. Dividends to be made from profits only, § 453u. Guarantee, fund, amount of, § 453t. Guarantee fund, approval of securities by insurance commissioner, § 453t. Guarantee fund, of what may consist, § 453t. Guarantee fund, bonds secured by mortgages or deeds of trust, ap- praisement of property, § 453t. Guarantee fund, bonds secured by mortgages or deeds of trust, ab- stracts of title in case of, § 453t. Guarantee fund, bonds secured by mortgages or deeds of trust, exami- nation of titles, § 453t. Guarantee fund, exchange of securities for other securities, § 453t. Guarantee, fund, interest and dividends on securities, § 453t. Guarantee fund, state responsible for custody and safe return of, § 453t. Guarantee fund, treasurer to give receipt for securities deposited, § 453t. Guarantee fund, treasurer to hold money and securities for benefit of policy-holders, § 453t. Guarantee fund, power of state treasurer to transfer and dispose of, § 453t. Guarantee fund, securities in which may be invested and approval , of insurance commissioner, § 453t. Guarantee fund, to be deposited with state treasurer, § 453t. Insurance commissioner, power and authority over, § 453s. Investments, capital and accumulations in what securities may be in- vested, § 453x, subd. 2. Loans to officers, employees or members of family of, forbidden, § 453z. Loans to officers, employees or members of family of, penalty for violation of provision against, § 453z. May act as registrar or transfer agents of bonds or stocks, § 453w. May guarantee identity, due execution and validity of notes, bonds and evidences of indebtedness, § 453w. Plant, investment of portion of capital stock in, § 453t. Plant regarded as an asset, § 453t. Plant, valuation of, § 453t. Subject to requirements of insurance laws, §§ 453s, 453x, subd. 2. Subject to rules and regulations of insurance department, §§ 453s, 453x, subd. 2. Surplus fund, amount, maintenance, impairment and restoration of, § 453u. Surplus fund, setting aside of, § 453u, Trust business, title insurance company doing, capital, amount re- quired and increase of. Appendix, tit. "Bankin'g," § lOG. Trust business, title insurance company doing, requirements. Appen- dix, tit. "Banking," § 106. ' Civ. Code — 80 1266 INDEX. TITLE INSURANCE CORPORATIONS. (Contiuued.) Trust company, acting as, surplus and accumulations, how may be invested, § 453x, subd. 3. Trust company, conditions preliminary to acting as, § 453x. Trust company, may act as, § 453x. Trust company, subject to banking laws, rules and regulations when acting as, § 453x, subd. 3. Trust compauit'S. See Trust Companies. Trust department of, inspection and examination of. Appendix, tit. "Banking," § 124. TOLLS. See Wagon-road Corporations. Franchise, levy on and sale under execution, § 388. Gatherer may detain person until paid, § 517. Gatherer not to detain person unnecessarily, § 518. Natural person may own toll-road, § 523. Natural person owning toll-road, rights and liabilities, § 523. Not to be charged on public highway, § 515. Penalty for avoiding, § 519. Penalty for taking unlawful or excessive, §§ 514, 518. Eates to be posted over gate, § 516. Eight of taking as servitude, § 802. Wagon-road corporations, by, § 514. Wagon-road corporations, tolls by. See Wagon-road Corporations. TORT, See Wrongs. Agent's, principal's liability for, §§ 2338, 2339. Carrier cannot exempt himself from liability -for, § 2175. Damages, exemplary, in case of oppression, fraud, or malice, § 3294. Damages for, measure of, general rule, § 3333. Damages for wrongs, §§ 3333-3341. Damages recoverable for tortious acts, § 3281. Deceit, §§ 1709-1711. See Deceit. Duty to abstain from injury to person or property, § 1708. Indemnity against, §§ 2773, 2774. Infant, liability for, § 41. Infringements upon rights of others, duty to refrain from, § 1708. In general, § 1708. Injuries to another, duty to refrain from inflicting, § 1708. Insane persons, liability for, § 41. Interest as damages in case of oppression, fraud, or malice, § 3288. Liability for willful acts, § 1714. Libel. See Libel. Married women, by. See Married Women. Eestoration of thing wrongfully acquired, §§ 1712, 1713. Slander. See Slander. Unlawful acts or omissions, damages recoverable, § 3281. Willful acts, negligence, etc., liability for, § 1714. Willful holding over of real property, damages for, § 3335. Wrongfullv using materials of another, wrongdoer liable in damages, § 1033". TOWN LOT. Not embraced in state lands granted to railroads, § 475. TRADE. Contracts in restraint of, §§ 1673-1675. TRADE-MARK. May be appropriated to exclusive use, § 991. Ownership, subject of, § 655. INDEX. 1267 TRADE-MARK. (Continued.) Property, is, § 655. Sale of property to which attached, warranty, §§ 1772, 1773. What may be appropriated, § 991. TRANSFER. See Assignment; Conveyance; Deeds; Grants; Sale. Adverse possession of another, property in, may be transferred, § 1047. Bill of lading, § 2128. Bona fide purchaser, title of, § 1142. Called what, § 1053. Cancellation of, does not revest title, § 1058. Complete when, § 1140. Conditions in. See Conditions. Covenants, of, §§ 1460-1467. Covenants. See Covenants. Defined, §§ 1039, 1053. Delivery, conditional, cannot be to grantees, § 1056. Delivery, constructive, § 1059. Delivery, date of, presumption as to, § 1055. Delivery in escrow, § 1057. Delivery necessary, § 1054. Delivery to grantee must be absolute, § 1056. Delivery to stranger, effect of, § 1059. Denominated what, § 1053. Effect of, §§ 1083-1085. Executory agreement for, title passes when, § 1141. Form of grant, § 1092. Fraudulent, respecting realty, §§ 1227-1231. Fraudulent. See Fraudulent Conveyance. Future interests pass by, § 699. Gift. See Gift. Good-will, of, § 993. Grant defined, § 1053. Grant includes whatever is essential to use, § 3522. Incidents follow thing transferred, § 1084. Incident, transfer of, does not carry principal, § 1084. Insured thing, of, effect of, §§ 2553-2557. Interpretation of grant. See Conveyances. Life insurance policy, of, § 2764, 2765. Married woman, by, effect of, § 1187. Married woman's, how made and acknowledged, § 1093. Mode of, § 1091. Mortgage, when transfer deemed a, § 2924. Name, change of, transfer of realty in case of, § 1096. Non-negotiable instrument, of, § 1459. Obligation, of rights arising out of, § 1458. Obligations, burden, transfer of, § 1457. Oral, when may be, § 1052. Personal property. See Sales. Possibility, of, § 1045. Property may be acquired by, § 1000. Property of any kind may be transferred, § 1044. Property susceptible of, § 1044. Realty, of. See Conveyance; Deeds. Recording. See Recording. Redelivery does not revest title, § 1058. Re-entry, right of, may be transferred, § 1046. 1268 INDEX. TRANSFER. (Continued.) Eents, remainders, and reversions, of, § 1111. Ship, of interest in, statute of frauds, § 1135. Statute of frauds, §§ 1135, 1624. See Statute of Frauds. Stranger, grant may inure to, § 1085. Third person, grant may inure to benefit of, § 1085. Title passes, when, § 1140. Title passes when ifl executory contract for sale, § 1141. Title, what passes, § 1083. Title, when buyer acquires better than seller had, § 1142. Unlawful, §§ 1227-1231. Voluntary, consideration not necessary, § 1040. Voluntary, defined, § 1040. Voluntary, rules governing contracts apply to, § 1040. Warranty of written instrument sold, § 1774. What called, § 1053. What may be transferred, § 1044. When complete, § 1140. Will, effect onj,§ 1302. Written, is called a grant or conveyance or bill of sale, § 1053. TRANSIT. Mortgaged property in, where located, § 2960. Stoppage in, §§ 3076-3080. TRANSPORTATION. Commissioners of, act relating to. Appendix, tit. "Eailroads." TREASURE-TROVE. See Finder. TREE. Injuries to, treble damages for, § 3346. Xegligeutly setting fire to woods, penal damages, § 3346a. Standing on line, § 834. Wholly on land of one, § 833. TRESPASS. Accession to property by willful trespasser, § 1031. Damages for wrongfully using property of another, § 1033. Product of materials acquired by trespass, to whom belongs, § 1031. Timber, cutting or injuring, damages, § 3346. Wagon-road corporation, on, penalty for, § 520. TRIFLES. Law disregards, § 3533. TROVER. Conversion, damages for, §§ 3336, 3337, 3338. TRUST COMPANIES. See Banks and Banking, II. Acts arid proceedings not affected by failure of company to comply with statute. Appendix, tit. "Banking," § 97. Affidavits, what officers may make. Appendix, tit. "Banking," § 90. Bond or security not required of. Appendix, tit. "Banking," § 94. Capital stock required in cities of less than one hundred thousand, § 290a. Capital stock required in cities of more than one hundred thousand, § 290a. Capital stock, amount of, required to be subscribed and paid in various cities, § 290a. INDEX. 1269 TRUST COMPANIES. (Continued.) Capital stock, population of cities, how determined for fixing of amount of, § 290a. Certificate of incorporation, approval of superintendent of banks be- fore issuance of, § 290a. Commercial business, capital required where trust company does. Appendix, tit. "Banking," § 106. Corporations doing banking and trust business combined. See Banks and Banking, II. Definition of. Appendix, tit. "Banking," § 6. Definition of court and private trusts. Appendix, tit. "Banking," §101. Departmental business as title insurance and trust company, com- pany doing, provisions of law applicable. Appendix, tit. "Bank- ing," § 107. Departmental business as title insurance and trust company, com- pany doing subject to inspection by superintendent of banks. Appendix, tit. "Banking," § 107. Departmental business, trust company doing, compliance with pro- visions of statute. Appendix, tit. "Banking," § 106. Deposit of trust funds with, under order of court and discharge from liability. Appendix, tit. "Banking," § 91. Deposit of funds with, by public administrator under order of court and withdrawal of. Appendix, tit. "Banking," § 92. Depost with state treasurer of mortgages or deeds of trust, of ab- stracts of title or insurance policies to accompany. Appendix, tit. "Banking," § 99. Deposit with state treasurer of mortgages or deeds of trusts, fees for examining title. Appendix, tit. "Banking," § 99. Deposits with state treasurer to secure performance of trusts. Ap- pendix, tit. "Banking," § 96. Deposit with state treasurer to secure performance of trust, addi- tional where trust funds over $1,000,000. Appendix, tit. "Bank- ing," § 98. Deposit with state treasury to secure performance of trusts, with- drawal permitted when. Appendix, tit. "Banking," § 98. Discontinuance of business, proceedings. Appendix, tit. "Banking," § 103. Extension or shortening of corporate existence, approval of super- intendent of banks necessary, § 290a. Foreign, conditions on doing business. Appendix, tit. "Banking," § 7. Foreign corporations, power to act as trustees. Appendix, tit. "Bank- ing," § 90. Guardian, appointment of trust company as applies only to estate and not to person. Appendix, tit. "Banking," § 90. Increase or decrease of capital stock, approval of superintendent of banks necessary, § 290a. Increase or decrease of number of directors, approval of superintend- ent of banks necessary, § 290a. Interest on deposits with. Appendix, tit. "Banking," § 95. Investment of capital and surplus, how made. Appendix, tit. "Bank- ing," § 105. Investments, liability for. Appendix, tit. "Banking," § 94. Mortgage of building witli state treasurer to secure performance of trusts. A])pendix, tit. "Banking," § 97. Oaths, liow made. Ap]iendix, tit. "Banking," § 90. Officers or employees of, liability of on failure of trust companies to perform. Appendix, tit. "Banking," § 90. 1270 INDEX. TRUST COMPANIES. (Continued.) Ordering deposit of funds with trust company by court and reduction of bonds. Appendix, tit. "Banli^ing," § 93. Paid-up capital required, provision as to repealed. Appendix, tit. "Banking," § 100. Powers of. Appendix, tit. "Banking," § 90. Report by to superintendent of banks, what to show. Appendix, tit. "Banking, § 101. Secrecy of communications concerning private trusts. Appendix, tit. "Banking," § 103. Setting aside of capital as security for performance of trusts. Ap- pendix, tit. "Banking," § 90. Title insurance company doing trust business. See Title Insurance Companies. Trust business, private, not subject to inspection or supervision by ' superintendent of banks. Appendix, tit. "Banking," § 124. Trust departments of title insurance companies, inspection and ex- amination of. Appendix, tit. "Banking," § 124. Trustees under deeds of trust not subject to supervision of superin- tendent of banks. Appendix, tit. "Banking," § 101. "Trust," effect of use of word, provision as to repealed. Appendix, tit. "Banking," § 104. "Trust" or "trustee," what corporations only can use word, § 290%. Trusts classified as private trusts and court trusts. Appendix, tit. "Banking," § 101. Trust funds defined. Appendix, tit. "Banking," § 98. Trust fund to be deposited with state, mortgage participation certi- ficates or securities guaranteed by policies of mortgage insurance to be accepted, § 453fl;. Trusts, court, defined. Appendix, tit. "Banking," § 101. Trusts, court, subject to inspection by superintendent of banks. Ap- pendix, tit. "Banking," § 101. Trusts, private, defined. Appendix, tit. "Banking," § 101. Trusts, private, not subject to inspection by superintendent of banks. Appendix, tit. "Banking," § 101. What corporations may act as. Appendix, tit. "Banking," § 90. When only can use name "trust" or "trustee," § 29014. TRUST DEEDS. Power to sell in, passes to assignee, § 858. Power to sell under, assignee may exercise, § 858. Trustees under not subject to supervision of superintendent of banks. Appendix, tit. "Banking," § 101. TRUSTEES. See Trusts. TRUSTS. See Banks and Banking, II; Trust Deeds. Absolute grant, when deemed to be, § 869. Accident, involuntary trust arises from, when, § 2224. Accumulations. See Accumulations. Adverse interest, trustee not to have, except under what circum- stances, § 2230. Adverse interest, trustee to disclose, § 2233. Adverse trust not to be assumed by trustee, § 2232. Agent, trustee's powers as, § 2267. Alienation, suspension by trust, what is, § 771. Alienation, suspension of. See Alienation. Annuity, beneficiary may be restrained from disposing of, § 867, INDEX. 1271 TRUSTS. (Continued.) Application of pavment or propertv, when one must see to, and when not, § 2244. Are voluntary or involuntary, § 2215. Assignment, beneficiary mav be restrained from disposing of interest, § 867. Author of, may devise and transfer property, § 864. Beneficiary defined, § 2218. Beneficiary may be restrained from disposing of property, § 867. Beneficiary may enforce performance of trust, § 863. Beneficiary mav take advantage of at any time prior to rescission, § 2251. Beneficiary, presumption against trustee dealing with, § 2235. Beneficiary takes no estate or interest, § 863. Bona fide purchaser from trustee, rights of, where trust omitted from conveyance, § 869. Bona fide purchaser from trustee takes absolute title when, § 869. Bona fide purchaser, grant when deemed absolute in favor of, § 869. Bona fide purchaser not affected bv implied or resulting trust, § 856. Breach of trust, measure of liability for, §§ 2237, 2238. Care and diligence required in executing trust, § 2259. Cemetery may hold property in trust, §§ 612, 616. Charitable, restrictions on power of devise, § 1313. Classification of, § 2215. Code prescribes those only which may exist in realty, § 847. Code provisions, what apply only to express trusts for benefit of third person, § 2250. Compensation of trustee, § 2274. Confidential relations, trust from, § 2219. Consent, mutual, creates, § 2251. Consent to modification of, § 2258. Convey realty, trust to, § 857. Corporation, when only can accept and '.-xecute trust, § 290 V^- Corporation, when onlv can use "trust" or "trustee" as part of name, § 290 i/j. Co-trustees, apportionment of compensation among, § 2274. Co-trustees, death, renunciation or discharge of one, survival to others, § 2288. Co-trustees, how far liable for each other, § 2239. Co-trustees must all act, §§ 860, 2268. Co-trustees, powers vested in several, how exercised, § 860. Co-trustees, survivorship between, § 2288. Co-trustees, survivors exercise powers in case of death, § 860. Court appointing trustee in trustor, § 2252. Created only by writing or operation of law, § 852. Creation by mutual consent, § 2251. Creditors, surplus liable to, when, § 859. Damages for breach of, §§ 2237, 2238. Damages for willful holding over by trustee, § 3335. - Death of co-trustee, survivors may execute powers, J 860. Declaration of, expresses its nature, etc., § 2253. Declaration of, in writing merges prior declarations, § 2254. Declaration of, trustee must obey, § 2258. Declarations of trustor before acceptance as part of, § 2254. Deeds of trust. See Trust Deeds. Dei)0sit in trust for another, rights under. Appendix, tit. "Banking," §16. Devise of property in case of failure of, § 864. 1272 INDEX. TRUSTS, (Continued.) . Devise of property subject to, § 864. Devisee of trust property, title of, § 865. Directions of trustor except as modified to be followed, § 225S. Express, acts of trustees in contravention of, void, § 870, Express, beneficiary may enforce, § 863. Express, beneficiary takes no title or interest, § 863. Express, bona fide purchaser from trustee takes free from when, § 869. Express, for what purposes may be created, § 8.57. Express, interest remaining in grantor of, § 866. Express, omission of, from conveyance to trustees, rights of pur- chasers from trustees, § 869. Express, terminated when, § 871. Express, title of grantor of, § 866. Express, to receive rents and profits, and accumulate, § 857. Express, to receive rents and profits, and apply proceeds, § 857. Express, to sell, lease, or mortgage realty, § 857. Express, trustee to have whole estate, § 863. Express, when deemed absolute grant in favor of purchasers from trustees, § 869. Extinguished how, §§ 871, 2279. Failure of trust, devise or transfer of property in ease of, § 864. Fraud, involuntary trust arises from, when, § 2224. Grantee of property subject to, title of, § 865. Grant of property in case of termination of, § 864. Grant of property subject to, by author of, § 864. Grantor of, interest remaining in, § 866. Grantor of trust property, title of, § 865. Income of trust property undisposed of, who entitled to, § 733. Holding over after termination of, damages for, § 3335. How only created, § 852. Implied, not to prejudice purchaser of encumbrancer, § 856. Implied, resulting trust presumed on payment of consideration by third person, § 853. Implied, trusts may arise by implication of law, § 852. Indemnification of trustee for expenses incurred, § 2273. Injunction in cases respecting, § 3422. Insanity, discharge of trustee for, § 2282. Insurance by trustee, form of policy, § 2589. ^ Interest, trustee's liability to beneficiary for, § 2237. Invest funds, interest, compound, on omission to, § 2262. Invest funds, interest on omission to, § 2262. Investment of trust funds, duty as to, § 2261. Investments, in mortgage participation certificates and securities guaranteed by policies of mortgage insurance, § 453flf, Investments. See Investments. Involuntary and voluntary, are, § 221.5. Involuntary arises from negligence, fraud, mistake, etc., when, § 2224. Involuntary,. by wn'ongful detention, § 2223. Involuntary, defined, § 2217. Involuntary, what creates, §§ 2223, 2224. Involuntary trustee, compensation of, § 2275. Involuntary trustee, expenses of, reimbursement, § 2275. Involuntary trustee, juirchaser with notice is, § 2243. Involuntary trustee, rights of, § 2275. Involuntarv trustee, when third person is, § 2243. Involuntary trustee, who is, §§ 2223, 2224, 2243. INDEX. - l2t3 TRUSTS. (Continued.) Kinds of, § 2215. Lease, to, may be created, § 857. Livestock, combinations to obstruct sale of, prevented. Appendix, tit. "Animals." Mingling trust property, liability, § 2236. Modified, how, § 2258. Mortgage, to, may be created, § 857. Mortgage participation certificates and securities guaranteed by policies of mortgage insurance as legal investments for trust funds, § 453ff. .Xature, extent and object expressed in declaration of trust, § 2253. None can be created except those specified in code, § 847. OflBcer appointing trustee is trustor, § 2252. Omission of from conveyance, rights of bona fide purchasers from trustees, § 869. Operation of law, trust may be created by, § 852. Parties to, how designated, § 2218. Powers vested in several, execution of, § 860. Powers vested in several, survivors may exercise on death, § 860. Presumption against trustee on dealing with beneficiary, § 2235. Property, creator of trust may devise or transfer. § 864. Purchase by trustee of claims against trust fund, § 2263. Purchaser of property with notice is involuntary trustee. § 2243. Purposes for which may be created, § 2220. Realty, code prescribes those only which may exist in, § 847. Realty, express trusts, what may be created in, § 857. Recording transfer in trust, when required, § 1164. Rents and profits, to receive, and applv proceeds, maA- be created, § 857. Rents and profits, to receive, beneficiary may be restrained from dis- posing of, § 867. Rents and profits, to receive, creditors entitled to surplus, when, § 859. Result from negligence, fraud, accident, mistake, etc.. when, § 2224. Resulting, not to prejudice purchaser or encumbrancer, § 856. Resulting, presumed when consideration for realty paid by third per- son, § 853. Revocation, power of, to be strictly pursued, § 2280. Revocation, right of, § 2280. Sell, to, and apply proceeds, may be created, § 857. Statute of frauds, transfer of interest in trust must be in writing, § 1135. Stockholder's liability, trust funds whether can be held for, § 322. Successor, duty of trustee as to appointment of, § 2260. Superior court as trustee, § 2289. Superior court, discretion of, as to number of trustees appointed, § 22S9. Superior court to fill vacancies. §§ 2287, 2289. Surplus of rents and profits liable to creditors when, § 859. Survivorship between co-trustees, §§ 860, 2288. Suspension of power to alienate the subject of, what is, § 771. Termination by entire fulfillment of object, § 2279. Termination of, devise or transfer of property in case of, § 864. Termination of estate of trustee when purpose of trust ceases, § 871. Termination where object becomes impossible or unlawful, § 2279. Third persons, when involuntary trustees, § 2243. Third jierson, when must see to application of trust pi-oi»erty, and when not, § 2244. 1274 INDEX. TRUSTS. (Continued.) Title of grantee or devisee of trust property, § S65. Title remaining in grantor, § 866. Title vests in trustee in case of express trust. § 863. Transactions forbidden to" trustee, § 2230. Transfer of interest, beneficiary may be restrained from making, §867. Transfer of interest in, how made, § 1135. Transfer of interest in to be in writing, § 1135. Trust companies. See Banks and Banking, II; Trust Companies. Trust deeds. See Trust Deeds. Trustee, act authorizing executor to act as. Appendix, tit. "Corpora- tions." Trustee, acts of, in contravention of trust, void, § 870. Trustee, acts within scope of authority bind property, § 2267. Trustee, adverse interest, duty to disclose, § 2233. Trustee, adverse interest, not to have except under what circum- stances, § 2230. Trustee, adverse interest, removal because of, § 2233. Trustee, adverse trust, not to be assumed by, § 2232. Trustee, agent, powers of, as, § 2267. Trustee, all trustees must act, § 2268. Trustee, appointed by court or public officer, court or officer is trustor, § 2252. Trustees, associations, trustees of. See Associations. Trustee, authority of, §§ 867, 2267. Trustees, beneficiary may nominate when, § 2287. Trustee, breach of trust, measure of liability for, §§ 2237,2238. Trustee, care required of, § 2259. Trustee, compensation, direction as to in declaration, § 2274. Trustee, compensation where declaration silent, § 2274. Trustee, corporation authorized to act as, minimum capital required and affidavit as to, § 290a. Trustee, co-trustee. See ante, this title. Trustee, death vacates office, § 2281. Trustee, defined, § 2218. Trustee, degree of care and diligence required of, § 2259. Trustee, deposit of money in trust company and discharge of. Ap- pendix, tit. "Banking," § 91. Trustee, deposit of assets in trust company and reduction of bonds. Ajjpendix, tit. "Banking," § 93. Trustee, discharge before trust executed, duty as to appointment of successor, § 2260. Trustee, discharge of, grounds of, § 2282. Trustee, discharge vacates office, § 2281. Trustee discharged how, § 2282. Trustee, discretionary powers, control over, § 2269. Trustee, duty of as to appointment of successor, § 2260. Trustee, estate ceases when, § 871. Trustee, estate, termination of, § 871. Trustee, expenses, entitled to reimbursement for, § 2273.* Trustee, expenses, reimbursement for, where unlawful, § 2273. Trustee, fraud, when guilty of, § 2234. Trustee, highest good faith required of, § 2228. Trustee holding over after termination of trust, damages for, § 3335. Trustee, indemnification of, for expenses incurred, § 2273. Trustee, insurance by, form of policy, § 2589. Trustee, investments, duty to make, § 2261. INDEX. 1275 TRUSTS. (Continued.) Trustee, investments, failure to make, liability for interest, § 2262. Trustee, involuntary, rights of, § 2275. Trustee, involuntary, who is, § 2223. Trustees, involuntary. See also, ante, Involuntary, this subject. Trustee, liability for breach of trust, measure of, §§ 2237, 2238. Trustee mingling trust property, liability of, § 2236. Trustee, must not gain any advantage over beneficiary, § 2228. Trustee must obey directions except as modified, § 2258. Trustee not to assume trust adverse to beneficiary, § 2232. Trustee not to use influence to his advantage, § 2231. Trustee, not to use property except for purpose connected with trust, § 2229. Trustee not to use property for own profit, § 2229. Trustee, number of trustees, discretion of superior court in appoint- ing, § 2289. Trustee, obligation to good faith, § 2228. Trustee, office vacated by death or discharge, § 2281. Trustee, powers as agent, § 2267. Trustee, preference of, in awarding custody of child, § 246. Trustee, presumption against, on dealing with beneficiary, § 2235. Trustee's proxies, trustee may give, § 321b. Trustee's shares of stock in name of trustee, how represented, § 313. Trustee's purchase of claims against trust funds, effect of, § 2263. Trustee, removal because of adverse interest, § 2233. Trustee, removal of by court, power of, § 2283. Trustee, resignation of, § 2283. Trustee, sale by, in contravention of trust void, § 870. Trustee, superior court as, § 2289. Trustee, superior court when to appoint and direct execution of trust, § 2289. Trustee takes whole estate, § 863. Trustee, title of, ceases when, § 871. Trustee to have no adverse interest, except in what eases, § 2230. Trustee, to what trustees code applies, § 2250. Trustee, transactions adverse to beneficiary, forbidden, § 2230. Trustee, transactions where beneficiary interested forbidden, § 2230. Trustee, transactions where beneficiary interested, what permitted, §2230. . Trustees, vacancy in trusteeship, beneficiary over fourteen may nomi- nate trustee, § 2287. Trustees, vacancy in trusteeship, beneficiary's nominee, court to ap- point, where, § 2287. Trustees, vacancy in trusteeship, superior court may appoint trustee, § 2287. Trustees, vacancies, superior court to fill when, § 2287. Trustee, what constitutes one a, § 2219. Trustor, court or officer is, when trustee appointed by, § 2252. Trustor defined, § 2218. Undue infiuence, involuntary trust arises from, when, § 2224. Vacancy in trusteeship may arise from death or discharge, § 2281. Vacant trusteeship filled by court, when, §§ 2287, 2289. Violation of trust, involuntary trust arises from, when, § 2224. Voluntary and involuntary, are, § 2215. Voluntary, defined, § 2216. Voluntary, how created as to trustee, § 2222. Voluntary, how created as to trustor, § 2221. What only can exist, § 847. When deemed absolute grant in favor of bona fide purchasers, § 869. 1276 INDEX. TRUSTS. (Continued.) Wrongful act, trust arising from, § 2224. Wrongful detention, involuntary trust arises from, § 2223. TUNNEL CIiAIM. See Mines and Mining. TURNPIKE CORPORATION. See Wagon-road Corporation. TYPEWRITING. Writing includes, § 1-i. u UNCLAIMED DEPOSITS. Statement of to be published b}' banks, § 583b. UNDERGROUND RAILWAY. Franchise for, majority of frontage to sign petition, § 4-92. Franchise for, terms and conditions, § 492. Franchise may be granted for by supervisors, § 492. Power to grant franchise for, § 493. UNDERTAKING. See Guaranty; Indemnity; Suretyship. In legal proceedings, sureties on, called bail, § 27S0. UNDERWRITERS. See Fire Patrol. UNDUE INTLUENCE. Consent obtained by voidable, §§ 1567, 1568. Contract obtained through, voidable, §§ 1567, 1568, 1689. Defined, § 1575. Presumption of, against trustee, § 2235. Kescission for, § 1689. Thing gained by, held in trust, § 2224. Trust arising from, § 2225. What constitutes, § 1575. Wills procured or revoked through. § 1272. UNINCORPORATED ASSOCIATIONS. See Associations; Benefit Soci- eties; Protective Associations. UNITED STATES. Preference to, by carrier, § 2171. UNITED STATES COURTS. Proceedings in, not enjoined, § 3423. UNIVERSITY. See College. UNLAWFUL. Alternative in contract, effect of, § 1451. Condition in instrument, renders void. § 709. Condition in obligation void, § 1441. Contracts. See Contracts. Conveyances. See Fraudulent Conveyance. Termination of trust where object is, § 2279. Transfers, §§ 1227-1231. See Fraudulent Conveyance. UNLAWFUL TRANSFERS. See Fraudulent Conveyance. UNRECORDED INSTRUMENT. Valid between parties and those with notice, § 1217. INDEX. 1277 USAGE. Agent to conform to, § 2349. Employee, duty of to conform to, § 1982. General, parties to insurance contract bound to know, § 2566. Meaning of words fixed by, § 1644. USE AND OCCXJPATION. Wrongful occupation of realty, damages for, § 3334. USES AND TRUSTS. See Charitable Uses; Trusts. Uses, none exist except those specified in code, § 847. V VACANCY. See Trusts. Incumbency of corporation sole, effect of, § 602a. See Religious, Social, and Benevolent Corporations. VALUE. See Damages. How estimated, §§3353-3355. VEINS. See Mines and Mining. VENDEE'S LIEN. See Conveyance. VENDOR AND VENDEE. See Conveyance. VENDOR'S LIEN. See Conveyance. Homestead, liability for, § 1241. VERIFICATION. Report of building and loan association to be verified, § 645. Cross-complaint in divorce, of, § 128. Homestead, petition for appraisement of must be verified, § 1246. Reports of mortgage insurance companies to insurance commissi