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Code · STATUTES-AT-LARGE · Vol. 47 STAT. · June 7, 1931 · Public Law 375

Public Law 375.

257,184 words·~1169 min read·/statutes-at-large/vol-47/public-law-375·

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

(/us/pl/72/374).] *Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, * That there areMexico.Payment to, authorized as indemnity for the killing of Emilio Cortez Rubio and Manuel Gomez. hereby authorized to be appropriated, out of any money in the Treasury not otherwise appropriated, the sum of $15,000 for payment to the Government of Mexico for the account of the family of Emilio Cortez Rubio, and a further sum of $15,000 for payment to the Government of Mexico for the account of the family of Manuel Gomez, as an act of grace and without reference to the question of legal liability of the United States, for the killing in or near Ardmore, Oklahoma, on June 7, 1931, of Emilio Cortez Rubio and Manuel Gomez by two deputy sheriffs of the State of Oklahoma.
Approved, February 25, 1933. Authorizing the Comptroller of the Currency to exercise with respect to national banking associations powers which State officials, may have with respect to State banks, savings banks, and/or trust companies under State laws. 1933-02-25 126 Chapter 47 Stat. 907 72 2 United States Government Publishing Office text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.
Digitization Vendor 2024-12-27 public [CHAPTER 126.] JOINT RESOLUTION Authorizing the Comptroller of the Currency to exercise with respect to national banking associations powers which State officials, may have with respect to State banks, savings banks, and/or trust companies under State laws.February 25, 1933.[[S. J. Res. 256](/us/bill/72/sjres/256).][[Pub. Res., No. 58](/us/pl/72/58).] *Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, * National banking associations.Authority of Comptroller of Currency over.
That, with the approval of the Secretary of the Treasury, the Comptroller of the Currency shall have and may exercise to such extent as he deems advisable with respect to any national banking association any powers which the State officials having supervision of State banks, savings 908banks and/or trust companies in the State in which such national banking associations are located may have with respect to such State institutions under State laws now in force or hereafter enacted: *Proviso*.Restriction.*Provided*, That nothing herein shall be construed to permit the establishment of branches of either national or State member banks or allow consolidation of either national or State member banks not allowed by existing laws.
Assessment of expenses.Expenses incurred by the Comptroller of the Currency in the exercise of such powers may be assessed by him against the banks concerned and, when so assessed, shall be paid by such banks. Powers not impaired hereby.Nothing herein shall be construed to impair any power otherwise possessed by the Comptroller of the Currency, the Secretary of the Treasury or the Federal Reserve Board. Duration.The powers herein conferred shall terminate six months from its approval by the President; but the President of the United States may extend its force by proclamation for an additional six months.
Approved, February 25, 1933. To provide a new Code of Civil Procedure for the Canal Zone and to repeal the existing Code of Civil Procedure. 1933-02-27 127 Chapter 47 Stat. 908 72 2 United States Government Publishing Office text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain. Digitization Vendor 2024-12-27 public [CHAPTER 127.] AN ACT To provide a new Code of Civil Procedure for the Canal Zone and to repeal the existing Code of Civil Procedure.February 27, 1933.[[H.
R. 7521](/us/bill/72/hr/7521).][[Public, No. 375](/us/pl/72/375).] *Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, * Code of Civil Procedure, Canal Zone. That the thirty-nine chapters hereinafter set forth shall constitute the Code of Civil Procedure for the Canal Zone. CHAPTER 1.— PRELIMINARY PROVISIONSPRELIMINARY PROVISIONS. Section 1. Title of this code.—Title. This code shall be known as the Code of Civil Procedure of the Canal Zone.
Sec. 2. When this code takes effect.—Effective date. This code shall take effect on the first day of October, 1933. Sec. 3. Notretroactive.—Not retroactive. No part of it is retroactive unless expressly so declared. Sec. 4. Rule of construction of this code.—Rule of construction. The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this code. The code establishes the law of the Canal Zone respecting the subjects to which it relates, and its provisions and all proceedings under it are to be liberally construed -with a view to effect its objects and to promote justice.
Sec. 5. Holidays.—Holidays. Holidays within the meaning of this code are every Sunday and such other days as are enumerated as holidays in section 7 of the Civil Code. Sec. 6. Computation of time.—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. Sec. 7. Words and phrases.—Words and phrases.Construction of. Words and phrases are construed according to the context and the approved usage of the language; but technical words and phrases, and such others as have acquired a peculiar and appropriate meaning in law, or are defined in section 8, are to be construed according to such peculiar and appropriate meaning or definition.
Sec. 8. Certain terms used in this code defined.—Definition of terms. Words used in this code in the present tense include the future as well as the present; words used in the masculine gender include the feminine 909and neuter; the singular number includes the plural, and the plural the singular; the word “person” includes a corporation as well as a“Person.” natural person; writing includes printing and typewriting; oath includes affirmation or declaration; and every mode of oral statement, under oath or affirmation, is embraced by the term “testify,” and every written one in the term w depose”; signature or subscription includes mark, when the person can not 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*Proviso*.Signature by mark. the same may be acknowledged or may serve as the signature to any sworn statement, be witnessed by two persons who must subscribe their own names as witness thereto.
The following words have in this code the signification attached to them in this section, unless otherwise apparent from the context: 1. The word “property” includes both real and personal“Property.” property; 2. The words “real property” are coextensive with lands, tenements,“Real property.” and hereditaments; 3. The words “personal property” include money, goods, chattels,“Personal property.” things in action, and evidences of debt; 4. The word “month” means a calendar month, unless otherwise“Month.” expressed; 5.
The word “will” includes codicil;“Win.” 6. The word “writ” signifies an order or precept in writing, issued“Writ”; “process.” in the name of the people, or of a court or judicial officer; and the word “process” a writ or summons issued in the course of judicial proceedings; 7. The word “State,” when applied to the different parts of the“State.” United States, includes the District of Columbia and the Territories; and the words “United States” may include the District and“United States.
” Territories; 8. The word “affinity,” when applied to the marriage relation,“Affinity.” signifies the connection existing in consequence of marriage between each of the married persons and the blood relatives of the other. Sec. 9. Division of judicial remedies.— Judicial remedies areJudicial remedies, division of. divided into two classes: 1. Actions; and 2. Special proceedings. Sec. 10. Action defined.— An action is an ordinary proceeding“Action” defined. in a court of justice by which one party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.
Sec. 11. Special proceedings defined.— Every other remedy is aSpecial proceedings. special proceeding. Sec. 12. Civil actions arise out of obligations or injuries.—Civil actions. A civil action arises out of— 1. An obligation; 2. An injury. Sec. 13. Obligation defined.— An obligation is a legal duty, by“Obligation ” defined. which one person is bound to do or not to do a certain thing, and arises from: 1. Contract; or 2. Operation of law. Sec. 14. Division of injuries.—Division of injuries.
An injury is of two kinds: 1. To the person; and 2. To property. Sec. 15. Injuries to property.— An injury to property consistsInjuries to property. in depriving its owner of the benefit of it, which is done by taking, withholding, deteriorating, or destroying it.910 Sec. 16. Injuries to the person.—To person. Every other injury is an injury to the person. Sec. 17. Civil action, by whom prosecuted.—Prosecution of civil action. A civil action is prosecuted by one party against another for the enforcement or protection of a right, or the redress or prevention of a wrong.
Sec. 18. Civil and criminal remedies not merged.—Civil and criminal remedies not merged. When the violation of a right admits of both a civil and criminal remedy, the right to prosecute the one is not merged in the other. CHAPTER 2.— GENERAL PROVISIONS RESPECTING COURTS OF JUSTICECOURTS OF JUSTICE, GENERAL PROVISIONS. Sec. 19. Sittings, public.—Sittings, public. The sittings of every court of justice shall be public, except as provided in section 20. Sec. 20. Sittings, when private.—Sittings, private.
In an action for divorce, criminal conversation, seduction, or breach of promise of marriage, the court may direct the trial of any issue of fact joined therein to be private, and may exclude all persons except the officers of the court, *Proviso*.Exclusion of witnesses.the parties, their witnesses, and counsel: *Provided*, That in any cause the court may, in the exercise of a sound discretion, during the examination of a witness, exclude any or all other witnesses in the cause.
Sec. 21. Powers respecting conduct of proceedings.—Conduct of proceedings.Power of court. Every court shall have power: 1. To preserve and enforce order in its immediate presence; 2. To enforce order in the proceedings before it, or before a person or persons empowered to conduct a judicial investigation under its authority; 3. To provide for the orderly conduct of proceedings before it, or its officers; 4. To compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in an action or proceeding pending therein; 5.
To control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter appertaining thereto; 6. To compel the attendance of persons to testify in an action or proceeding pending therein, in the cases and manner provided in this code; 7. To administer oaths in an action or proceeding pending therein, and in all other cases where it may be necessary in the exercise of its powers and duties; 8.
To amend and control its process and orders so as to make them conformable to law and justice. Sec. 22. District court to have seal.—District court seal The district court shall have a seal, which shall be kept by the clerk of the court. Sec. 23. Same; to what documents affixed.—To what documents affixed. The seal of the district court need not be affixed to any proceeding therein or document, except: 1. To a writ; 2. To the certificate of probate of a will or of the appointment of an executor, administrator, or guardian; 3.
To the authentication of a copy of a record or other proceeding of the court, or of an officer thereof, or of a copy of a document on file in the office of the clerk. Sec. 24. District court dockets.—District cour dockets. In addition to such dockets as may be specially provided for herein, the clerk of the district court, under the direction of the judge, must cause to be prepared, 911and shall keep, such other dockets as may be required for the purposes of said court. Sec. 25.
Powers of district judge.— The district judge may, atDistrict judge, powers, etc. chambers, grant all orders and writs which are usually granted in the first instance upon an ex parte application, and may, at chambers, hear and dispose of such orders and writs; and may also, at chambers, appoint appraisers, receive inventories and accounts to be filed, suspend the powers of executors, administrators, or guardians in the cases allowed by law, grant special letters of administration or guardianship, approve claims and bonds, and direct the issuance from the court of all writs and process necessary in the exercise of their powers in matters of probate.
Sec. 26. Disqualification of judges.— No judge or magistrateDisqualification of judges. shall sit or act as such in any action or proceeding: 1. To which he is a party or in which he is interested; 2. When he is related to either party, or to an officer of a corporation, which is a party, or to an attorney, counsel, or agent of either party, by consanguinity or affinity within the third degree computed according to the rules of law; 3. When, in the action or proceeding, or in any previous action or proceeding involving any of the same issues, he has been attorney or counsel for any party; or when he has given advice to any party upon any matter involved in the action or proceeding; or when he has been retained or employed as attorney or counsel for any party within two years prior to the commencement of the action or proceeding; 4.
When it appears from the affidavit or affidavits on file that either party can not have a fair and impartial trial before the district judge, about to try the case, by reason of the prejudice or bias of such judge. The affidavit or affidavits alleging the disqualification of the judge must be filed and served upon the adverse party or the attorney for such party at least one day before the day set for trial of such action or proceeding; provided, counteraffidavits may be filed at least one day thereafter, or such further time as the court may extend the time for filing such counteraffidavits, not exceeding five days, and for this purpose the court may continue the trial.
Sec. 27. No judge or magistrate to have partner practicing law.—Partner of judge practicing law, prohibited. No judge or magistrate shall have a partner acting as attorney or counsel in any court of the Canal Zone. Sec. 28. Powers of district judge.— The district judge may exercisePowers of district judge, out of court. out of court all the powers expressly conferred upon the judge, as contradistinguished from the court. Sec. 29. Powers of judicial officers as to conduct of proceedings.—Powers of judicial officers, conduct of proceedings.
Every judicial officer shall have power: 1. To preserve and enforce order in his immediate presence, and in proceedings before him, when he is engaged in the performance of official duty; 2. To compel obedience to his lawful orders as provided in this code; 3. To compel the attendance of persons to testify in a proceeding before him, in the cases and manner provided in this code; 4. To administer oaths to persons in a proceeding pending before him, and in all other cases where it may be necessary in the exercise of his powers and duties.
Sec. 30. To punish for contempt.— For the effectual exercise ofTo punish for contempt. the powers conferred by section 29, a judicial officer may punish for contempt in the cases provided in this code.912 Sec. 31. To take acknowledgments and affidavits.—Take acknowledgments and affidavits. The district judge and the magistrates shall have power to take and certify: 1. The proof and acknowledgment of a conveyance of real property or of any other written instrument; 2. The acknowledgment of satisfaction of a judgment of any court; 3.
An affidavit or deposition to be used in the Canal Zone. Cross Reference*Post*, p. 1164.Proof and acknowledgment of instruments, see Civil Code, sections 289 et seq. Sec. 32. Proceedings to be in English language.—Proceedings in English. Every written proceeding in a court of justice in the Canal Zone shall be in the English language, and judicial proceedings shall be conducted and preserved in no other. Sec. 33. Means to carry jurisdiction in to effect.—Means to carry jurisdiction into effect.
When jurisdiction is, by this code, or by any other statute, conferred on a court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code. Sec. 34. Reports prima facie correct statements.—District court reports prima facie correct.
The report of the official reporter, or official reporter pro tempore, of the district court, duly appointed and sworn, when transcribed and certified as being a correct transcript of the testimony and proceedings in the case, is prima facie evidence of such testimony and proceedings. CHAPTER 3.— ATTORNEYS AND COUNSELORS AT LAWATTORNEYS AND COUNSELORS AT LAW. Sec. 35. Admission to practice.—Admission to practice. 1. Any person of good moral character who has been admitted to practice in the Supreme Court of the United States, or in the highest court of the District of Columbia, or in the highest court of any State or Territory, may be admitted, on motion in open court, to practice as an attorney or the district court. 2.
Foreign attorneys. Any person of good moral character who has been admitted to practice in the highest court of any foreign country may be admitted *Provisos*.Requirements.to practice as an attorney of the district court: *Provided*, *however*, That the requirements for practice in such foreign countries be a preliminary education, in addition to grade and high school education, of at least two years law course in an approved law school: Law practice.*Provided further*, That such person shall have practiced law in the courts of his own or of a foreign country for a period of three years. 3.
Application for ad mission. Every applicant for admission shall file his application with the clerk, produce his license and satisfactory evidence that it has not been revoked, file with the clerk statements of at least three reputable persons, one of whom must be a member in good standing of the bar of the district court, attesting to the good moral character of the applicant; and, if admission is sought under subdivision 2 of this section, every applicant shall, in addition, furnish satisfactory evidence as to the requirements for practice in such foreign country and the applicant’s practice for the requisite period.
The motion for admission must be made in open court by a member in good standing of the bar of the district court. Such person shall upon the filing of his application pay to the clerk a fee of $15 which fee shall be accounted for by the clerk as miscellaneous receipts. 4. Requirements. Any person of good moral character who has attained the age of twenty-one years may be admitted to the practice of law in the courts of the Canal Zone by the judge of the United States district 913court thereof upon giving satisfactory evidence that he has a general education equivalent to graduation from a high school of the Canal Zone, has studied law under proper instruction for at least three years, and has passed an examination in the law to be prescribed and conducted by the judge of the district court or by a committee of the bar appointed by him for that purpose.
The judge of the district court is empowered to make rules to establish the qualifications of the candidates. Sec. 36. Certificate of admission.— Upon admission of an applicantCertificate of admission. to the bar, the district court shall direct an order to be entered to that effect upon its records, and that a certificate of such admission be given to him by the clerk of the court, which certificate shall be his license. Sec. 37. Oaths.— Before receiving a certificate the applicant shallOaths. take and subscribe in court the following oaths: 1.
“I, ___ recognize and accept the supreme authority of the United States of America, in the Canal Zone, and I do swear that I will obey the existing laws which rule in the Canal Zone, as well as the legal orders and decrees of the duly constituted authorities therein; that I impose upon myself this voluntary obligation without any mental reservation or purpose of evasion. So help me God. 2. “I do solemnly swear that I will do no falsehood, nor consent to the doing of any in court;
I will not wittingly or willingly promote or sue any false, groundless or unlawful suit, nor give aid nor consent to the same; I will delay no man for money or malice, but will conduct myself in the office of a lawyer within the courts according to the best of my knowledge and discretion, with all good fidelity as well to the courts as to my clients. So help me God.” Sec. 38. Roll of attorneys.— The clerk of the district court shallRoll of attorneys. keep a roll of attorneys admitted to practice, which roll must be signed by the person admitted before he receives his license.
Sec. 39. Attorneys on bonds.— Attorneys will not be acceptedAttorneys on bonds. as sureties upon bonds or recognizances required to be filed in court. Sec. 40. Who may conduct litigation.— A person may conductWho may conduct litigation. his litigation personally or by the aid of a lawyer, in either the district or magistrates’ courts. Sec. 41. Duties.— It is the duty of an attorney and counselor:Duties of attorneys. 1. To support the laws of the Canal Zone and the applicable laws of the United States; 2.
To maintain the respect due to the courts of justice and judicial officers; 3. To counsel or maintain such actions, proceedings, or defenses only as appear to him legal or just, except the defense of a person charged with a public offense; 4. To employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth, and never seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law; 5. To maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client; 6.
To abstain from all offensive personality, and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged; 7. Not to encourage either the commencement or the continuance of an action or proceeding from any corrupt motive of passion or interest; 8. Never to reject, for any consideration personal to himself, the cause of the defenseless or the oppressed.914 Sec. 42. Authority.—Authority. An attorney shall have authority: 1.
To bind his client in any of the steps of an action or proceeding by his agreement filed with the clerk, or entered upon the minutes of the court, and not otherwise; 2. To receive money claimed by his client in an action or proceeding during the pendency thereof, or after judgment, unless a revocation of his authority is filed, and upon the payment thereof, and not otherwise, to discharge the claim or acknowledge satisfaction of the judgment. Sec. 43. Change of attorney.—Change of attorney.
The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination, as follows: 1. Upon consent of both client and attorney, filed with the clerk, or entered upon the minutes; 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other. Sec. 44. Notice of change.—Notice of change. When an attorney is changed, as provided in section 43, written notice of the change and of the substitution of a new attorney, or of the appearance of the party in person, must be given to the adverse party.
Until then he must recognize the former attorney. Sec. 45. Death or removal of attorney.—Death or removal of attorney. When an attorney dies, or is removed or suspended, or ceases to act as such, a party to an action, for whom he was acting as attorney, must, before any further proceedings are had against him, be required by the adverse party, by written notice, to appoint another attorney, or to appear in person. Sec. 46. Causes for which court may remove attorney.—Causes for removal, by court.
An attorney may be removed or suspended by the district court, for any of the following causes, arising after his admission to practice: 1. His conviction of a felony or misdemeanor involving moral turpitude, in which case the record of conviction shall be conclusive evidence; 2. Willful disobedience or violation of an order of the district court requiring him to do or forbear an act connected with, or in the course of his profession, which he ought in good faith to do or forbear, and any violation of the oath taken by him, or of his duties as such attorney and counselor; 3.
Corruptly or willfully and without authority appearing as attorney for a party to an action or proceeding; 4. Lending his name to be used as attorney and counselor by another person who is not an attorney and counselor; 5. For the commission of any act involving moral turpitude, dishonesty, or corruption, whether the same be committed in the course of his relations as an attorney or counselor at law, or otherwise, and whether the same shall constitute a felony or misdemeanor or not; and in the event that such act shall constitute a felony or misdemeanor, conviction thereof in a criminal proceeding shall not be a condition precedent to disbarment or suspension from practice therefor.
Sec. 47. Proceedings for removal or suspension.—Proceedings for removal or suspension. The proceedings to remove or suspend an attorney and counselor, under the first subdivision of section 46, must be taken by the district court on the receipt of a certified copy of the record of conviction. The proceedings under any of the other subdivisions of that section may be taken by the court for the matters within its knowledge, or may be taken upon the information of another. Sec. 48.
Accusation.—Accusation. If the proceedings are upon the information of another, the accusation must be in writing.915 Sec. 49. Verification of accusation.— The accusation must stateVerification of. the matters charged, and be verified by the oath of some person, to the effect that the charges therein contained are true, which verification may be made upon information and belief when the accusation is presented by an organized bar association. Sec. 50. Citation of accused by publication.— Upon receiving theCitation of accused by publication. accusation, the district court shall make an order requiring the accused to appear and answer it at a specified time, and shall cause a copy of the order and of the accusation to be served upon the accused at least five days before the day appointed in the order.
If it shall appear by affidavit to the satisfaction of the court or judge that the accused resides out of the Canal Zone; or has departed from the Canal Zone; or can not, after due diligence, be found within the Canal Zone; or conceals himself to avoid the service of the order to show cause, the court or judge may direct the service of a citation to the accused, requiring him to appear and answer the accusation, to be made by publication in a newspaper of general circulation, in the Canal Zone for thirty days.
Such citation must be directed to the accused, recite the date of the filing of the accusation, the name of the accuser, and the general nature of the charges against him, and require him to appear and answer the accusation at a specified time. On proof of the publication of the citation as herein required the court shall have jurisdiction to proceed to hear the accusation and render judgment with like effect as if an order to show cause and a copy of the accusation had been personally served on the accused.
Sec. 51. Appearance.— The accused must appear at the timeAppearance. appointed in the order, and answer the accusation, unless, for sufficient cause, the court assign another day for that purpose. If he do not appear, the court may proceed and determine the accusation in his absence. Sec. 52. Objections to accusation.— The accused may answer toObjections to accusation. the accusation either by objecting to its sufficiency or denying it. Sec. 53. Demurrer.— If he object to the sufficiency of the accusation,Demurrer. the objection must be in writing, but need not be in any specific form, it being sufficient if it presents intelligibly the grounds of the objection.
If he deny the accusation, the denial may be oral and without oath, and must be entered upon the minutes. Sec. 54. Answer.— If an objection to the sufficiency of the accusationAnswer. be not sustained, the accused must answer within such time as may be designated by the court. Sec. 55. Trial.— If the accused plead guilty, or refuse to answerTrial. the accusation, the court shall proceed to judgment of removal or suspension. If he deny the matters charged, the court shall, at such time as it may appoint, proceed to try the accusation.
Sec. 56. Reference to take depositions.— The court may, in itsCommittee to take depositions. discretion, order a reference to a committee to take depositions in the matter. Sec. 57. Judgment.— Upon the receipt of a certified copy of theJudgment. record of conviction of an attorney of a crime involving moral turpitude, the district court must suspend the attorney until judgment in the case has become final. When a judgment of conviction in such case has become final the court shall order the attorney permanently disbarred.
When the attorney has been found guilty of the charges made in proceedings not based upon a record of conviction, judgment shall be rendered disbarring the attorney either permanently or for a limited time, according to the gravity of the offense charged. During such suspension or disbarment the attorney shall be precluded from practicing as an attorney at law or as an attorney or agent of another in and before all courts, commissions, 916and tribunals in the Canal Zone, and from practicing as attorney or counselor at law in any manner and from holding himself out to the public as an attorney or counselor at law.
When permanently disbarred his name shall be stricken from the roll of attorneys and counselors. Sec. 58. Disqualified attorney as plaintiff.—Disqualified attorney as plaintiff. No person who has been an attorney and counselor shall while a judgment of disbarment or suspension is in force, appear on his own behalf as plaintiff in the prosecution of any action where the subject of said action has been assigned to him subsequent to the entry of the judgment of disbarment or suspension.
Sec. 59. Compensation to be reasonable; contract for services.—Compensation; contract for services. An attorney shall be entitled to have and recover from his client no more than a reasonable compensation for the services rendered, having in view the importance of the subject matter of the controversy, the extent of the services rendered, and the professional standing of the attorney. But in such cases the court shall not be bound by the opinion of attorneys as expert witnesses as to the proper compensation, but may disregard such testimony and base its conclusion on its own professional knowledge.
A written contract for services shall control the amount of recovery if found by the court not to be unconscionable or unreasonable. CHAPTER 4.— FORM OF CIVIL ACTIONSFORM OF CIVIL ACTIONS. Sec. 60. One form of civil action only.—Single form. There is in the Canal Zone but one form of civil actions for the enforcement or protection of private rights and the redress or prevention of private wrongs. Sec. 61. Parties to actions, how designated.—Parties to action. In such action the party complaining is known as the plaintiff, and the adverse party as the defendant.
Sec. 62. Special issues not made by pleadings, how tried.—Trial of special issues not made by pleadings. A question of fact not put in issue by the pleadings may be tried by the district court or a jury therein, upon an order for the trial, stating distinctly and plainly the question of fact to be tried; and such order is the only authority necessary for a trial. CHAPTER 5.— TIME OF COMMENCING CIVIL ACTIONSTIME OF COMMENCING CIVIL ACTIONS. time of commencing actions in general Sec. 63.
Commencement of civil actions.—Commencement of. Civil actions, without exception, can only be commenced within the periods prescribed in this chapter, after the cause of action shall have accrued, unless where, in special cases, a different limitation is prescribed by statute. Cross Reference*Post*, p. 920.Action for wrongful death must be brought within one year, see section 96. Sec. 64. Periods of limitation prescribed.—Periods of limitation prescribed. The periods prescribed for the commencement of actions are as follows:
Sec. 65. Within five years.—Five years. Within five years: 1. An action upon a judgment or decree of any court of the United States or of any State within the United States. 2. An action for mesne profits of real property. Sec. 66. Within four years.—Four years. Within four years: 1. An action upon any contract, obligation or liability founded upon an instrument in writing. 2. An action to recover
(1)upon a book account whether consisting of one or more entries;
(2)upon an account stated;
(3)a balance 917due upon a mutual, open and current account: *Provided*, *however*,*Proviso*.Accounts stated. That where an account stated is based upon an account of one item, the time shall begin to run from the date of said item, and where an account stated is based upon an account of more than one item, the time shall begin to run from the date of the last item. Sec. 67. Within three years.— Within three years:Three years. 1. An action upon a liability created by statute, other than a penalty or forfeiture. 2. An action for trespass upon or injury to real property. 3. An action for taking, detaining, or injuring any goods or chattels, including actions for the specific recovery of personal property. 4. An action for relief on the ground of fraud or mistake. The cause of action in such case not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake. Sec. 68. Within two years.— Within two years:Two years. 1. An action upon a contract, obligation, or liability not founded upon an instrument of writing, other than that mentioned in subdivision two of section 66; or an action founded upon a contract, obligation., or liability, evidenced by a certificate, or abstract or guaranty of title of real property, or by a policy of title insurance; provided, that the cause of action upon a contract, obligation, or liability, evidenced by a certificate, or abstract or guaranty of title of real property or policy of title insurance shall not be deemed to have accrued until the discovery of the loss or damage suffered by the aggrieved party thereunder. 2. An action against a marshal, coroner, or constable upon a liability incurred by the doing of an act in his official capacity and in virtue of his office, or by the omission of an official duty including the nonpayment of money collected upon an execution. But this subdivision does not apply to an action for an escape. Sec. 69. Within one year.— Within one year:One year. 1. An action upon a statute for a penalty or forfeiture, when the action is given to an individual, or to an individual and the Government, except when the statute imposing it prescribes a different limitation. 2. An action upon a statute, or upon an undertaking in a criminal action, for a forfeiture or penalty to the Government of the Canal Zone. 3. An action for libel, slander, assault, battery, false imprisonment, seduction, or for injury to or for the death of one caused by the wrongful act or neglect of another, or by a depositor against a bank for the payment of a forged or raised check. 4. An action against the marshal or other officer for the escape of a prisoner arrested or imprisoned on civil process. Sec. 70. Actions for relief not here in before provided for.—Actions for relief not hereinbefore provided for. An action for relief not hereinbefore provided for must be commenced within four years after the cause of action shall have accrued. Sec. 71. Where cause of action accrues on mutual account.—Where cause of action accrues on mutual account. In an action brought to recover a balance due upon a mutual, open, and current account, where there have been reciprocal demands between the parties, the cause of action is deemed to have accrued from the time of the last item proved in the account on either side. Sec. 72. No limitation to certain actions; not applicable to banks, etc.—No limitation to certain actions. To actions brought to recover money or other property deposited with any bank, banker, trust company, building and loan association, or savings and loan society there is no limitation.918 Not applicable to insolvent banks, etc.This section shall not apply to banks, bankers, trust companies, building and loan associations, and savings and loan societies which have become insolvent and are in process of liquidation and in such cases the statute of limitations shall be deemed to have commenced to run from the beginning of the process of liquidation; provided, however, nothing herein contained shall be construed so as to relieve any stockholder of any banking corporation or trust company from stockholder’s liability as shall, at any time, be provided by law. general provisions as to time of commencing actionsGeneral provisions, commencing actions. Sec. 73. When an action is commenced.—When commenced. An action is commenced, within the meaning of this chapter, when the complaint is filed. Sec. 74. Exception, where defendant is out of the zone.—Exceptions.Where defendant out of Zone. If, when the cause of action accrues against a person, he is out of the Canal Zone, the action may be commenced within the term herein limited, after his return to the Zone, and if, after the cause of action accrues, he departs from the Zone, the time of his absence is not part of the time limited for the commencement of the action. Sec. 75. Exception, as to persons under disabilities.—Persons under disabilities.*Ante*, p. 916. If a person entitled to bring an action, mentioned in sections 63 to 72, be, at the time the cause of action accrued, either: 1. Under the age of majority; or, 2. Insane; or, 3. Imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than for life; or 4. A married woman, and her husband be a necessary party with her in commencing such action; The time of such disability is not a part of the time limited for the commencement of the action. Sec. 76. Provision where person entitled dies before limitation expires.—Where person entitled dies before limitation expires. If a person entitled to bring an action die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced by his representatives, after the expiration of that time, and within six months from his death. If a person against whom an action may be brought die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced against his representatives, after the expiration of that time, and within one year after the issuing of letters testamentary or of administration. Sec. 77. In suits by aliens, time of war to be deducted.—Suits by aliens, time of war deducted. When a person is an alien subject, or citizen of a country at war with the United States, the time of the continuance of the war is not part of the period limited for the commencement of the action. Sec. 78. Provision where judgment has been reversed.—Where judgment reversed. If an action is commenced within the time prescribed therefor, and a judgment therein for the plaintiff be reversed on appeal, the plaintiff, or if he die and the cause of action survive, his representatives, may commence a new action within one year after the reversal. Sec. 79. Provision where action is stayed by injunction.—Where action stayed by injunction. When the commencement of an action is stayed by injunction or statutory prohibition, the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action. Sec. 80. Disability must exist when right of action accrued.—Disability must exist when right of action accrued. No person can avail himself of a disability, unless it existed when his right of action accrued.919 Sec. 81. When two or more disabilities exist, etc.— When two orWhen two or more disabilities exist, etc. more disabilities coexist at the time the right of action accrues, the limitation does not attach until they are removed. Sec. 82. Acknowledgment or new promise must be in writing.—Acknowledgments, etc., must be in writing. No acknowledgment or promise is sufficient evidence of a new or continuing contract, by which to take the case out of the operation of this chapter, unless the same is contained in some writing, signed by the party to be charged thereby. Sec. 83. Limitation laws of States or foreign countries, effects of.—Limitation laws of States or foreign countries, effect of. When a cause of action has arisen in a State of the United States, or in a foreign country, “and by the laws thereof an action thereon can not there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in the Canal Zone, except in favor of one who has been a resident of the Zone, and who has held the cause of action from the time it accrued. Sec. 84. Existing causes of action not affected.— This chapterExisting causes of action not affected. does not extend to actions already commenced, nor to cases where the time prescribed in any existing statute for acquiring a right or barring a remedy has fully run, but the laws now in force are applicable to such actions and cases, and are repealed subject to the provisions of this section. Sec. 85. “Action” includes a special proceeding.— The word“Action” includes a special proceeding. “action” as used in this chapter is to be construed, whenever it is necessary so to do, as including a special proceeding of a civil nature. CHAPTER 6.— PARTIES TO CIVIL ACTIONSPARTIES TO CIVIL ACTIONS. Sec. 86. Civil actions or special proceedings between nonresidents.—Civil actions or special proceedings between nonresidents. No civil action or special proceeding shall be brought or proceeded with in the courts of the Canal Zone, in any case in which both of the parties, plaintiff and defendant, are alien nonresidents of the Canal Zone, and the cause of action is one which arose without the territorial limits of the Canal Zone, and the party proceeded against has no property within said territorial limits, subject to the jurisdiction of the Canal Zone courts. Neither shall any civil action or special proceeding be brought orTransients. proceeded with in the courts of the Canal Zone when both parties, plaintiff and defendant, though citizens of the United States, are found transiently within the limits of the Canal Zone, unless the cause of action is one arising within the said territorial limits, or the party proceeded against has property within the said limits, subject to the jurisdiction of the Canal Zone courts. This section shall not be construed to exclude from the jurisdictionPersons having business situs, etc. of the Canal Zone courts cases between parties who have an official or business residence within the territorial limits of the Canal Zone Government, or who reside therein for the purpose of any occupation or employment, notwithstanding that they may not have acquired a permanent residence within said territorial limits. Sec. 87. Action to be in name of party in interest.— Every actionAction in name of party in interest. must be prosecuted in the name of the real party in interest. Sec. 88. Assignment of thing in action not to prejudice defense.— In the case of an assignment of a thing in action, theAssignment of a thing in action not to prejudice defense. action by the assignee is without prejudice to any set off, or other defense existing at the time of, or before, notice of the assignment; but this section does not apply to a negotiable promissory note or bill of exchange, transferred in good faith, and upon good consideration, before maturity.920 Sec. 89. Executor, trustee, and so forth, may sue without joining the persons beneficially interested.—Executor, trustee, etc., may sue without joining beneficiary. An executor or administrator, or trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the persons for whose benefit the action is prosecuted. A person with whom, or in whose name, a contract is made for the benefit of another, is a trustee of an express trust, within the meaning of this section. Sec. 90. Married women as parties to actions.—Married women as parties. A married woman may be sued without her husband being joined as a party, and may sue without her husband being joined as a party in all actions, including those for injury to her person, libel, slander, false imprisoment, or malicious prosecution, or for the recovery of her earnings. Sec. 91. Wife may defend, when.—When wife may defend. If a husband and wife be sued together, the wife may defend for her own right, and if the husband neglect to defend, she may defend for his right also. Sec. 92. Appearance of infant, and so forth, by guardian; may compromise.—Appearance of infant, etc. When an infant, or an insane or incompetent person is a party, he must appear either by his general guardian or by a guardian ad litem appointed by the court in which the action is pending, in each case. A guardian ad litem may be appointed in any case, when it is deemed by the court in which the action or proceeding is prosecuted, or by a judge thereof, expedient to represent the infant, insane, or incompetent person in the action or proceeding, notwithstanding he may have a general guardian and may Power of guardian, etc., to compromise.have appeared by him. The general guardian or guardian ad litem so appearing for any infant, or insane or incompetent person in any suit shall have power to compromise the same and to agree to the judgment to be entered therein for or against his ward, subject to the approval of the court in which such suit is pending. Sec. 93. Guardian, how appointed.—How guardian appointed. When a guardian ad litem is appointed by the court, he must be appointed as follows: 1. When the infant is plaintiff, upon the application of the infant, if he be of the age of fourteen years, or if under that age, upon the application of a relative or friend of the infant. 2. When the infant is defendant, upon the application of the infant, if he be of the age of fourteen years, and apply within ten days after the service of the summons, or if under that age, or if he neglect so to apply, then upon the application of a relative or friend of the infant, or of any other party to the action. 3. When an insane or incompetent person is a party to an action or proceeding, upon the application of a relative or friend of such insane or incompetent person, or of any other party to the action or proceeding. Sec. 94. Unmarried female may sue for her own seduction.—Suits by unmarried female for seduction. An unmarried female may prosecute, as plaintiff, an action for her own seduction, and may recover therein such damages, pecuniary or exemplary, as are assessed in her favor. Sec. 95. Fathers, etc., may sue for seduction of daughter, etc.—Suit by father, etc. A father, or, in case of his death or desertion of his family, the mother, may prosecute as plaintiff for seduction of the daughter, and the guardian for the seduction of the ward, though the daughter or ward be not living with or in the service of the plaintiff at the time of the seduction or afterwards, and there be no loss of service. Sec. 96. Actions for wrongful death.—Actions for wrongful death. 1. Whenever by any injury done or happening within the Canal Zone the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured (or, in the case of a married woman, 921have entitled her or her husband, either individually or jointly) to maintain an action and recover damages in respect thereof, the individual who or corporation, company, or association which would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death of the person injured, and even though the death shall have been caused under such circumstances as amount in law to a felony. 2. Every action under this section shall be brought by and in the name of the personal representatives and within one year after the death of such deceased person. 3. No action shall be maintained under this section if the person suffering injury and death, or any person for him, has recovered damages on account of such injury. 4. In an action under this section the court or jury shall award such damages as it shall deem to be a fair and just compensation assessed with reference to the pecuniary injury, resulting from such death, to the surviving spouse and the children of the deceased, and if there is neither a surviving spouse nor child, then to the parents of the deceased, and if there is no parent, then to the brothers and sisters and other blood relatives dependent upon the deceased for support. 5. Damages recovered in an action under this section shall be for the exclusive benefit of the surviving spouse and other persons enumerated in subdivision 4, and shall be distributed to them, in the order named in such subdivision, according to the laws in force in the Canal Zone applicable to the distribution of estates. 6. In no case shall recovery under this section exceed the sum of $10,000. 7. This section shall not be construed as authorizing a suit against the United States nor as modifying or repealing any other law. (Act Cong. Dec. 29, 1926, c. 19, § 7, 44 Stat. 927.)Vol. 44, p. 927. Sec. 97. Who may be joined as plaintiffs.— All persons having anJoinder of parties.Plaintiff. interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except when otherwise provided in this chapter. Sec. 98. Who may be joined as defendants.— Any person may beDefendant. made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein. And in an action to determine the title or right of possession to real property which, at the time of the commencement of the action, is in the possession of a tenant, the landlord may be joined as a party defendant. Sec. 99. Same.— All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative; and judgments may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities. Sec. 100. Order preventing embarrassment.—Order preventing embarrassment. It shall not be necessary that each defendant shall be interested as to all relief prayed for, or as to every cause of action included in any proceeding against him; but the court may make such order as may appear just to prevent any defendant from being embarrassed or put to expense by being required to attend any proceedings in which he may have no interest. Sec. 101. Doubt as to defendant liable.— Where the plaintiff isWhen person liable in doubt. in doubt as to the person from whom he is entitled to redress, he may join two or more defendants, with the intent that the question as to which, if any, of the defendants is liable, and to what extent, may be determined between the parties.922 Sec. 102. Parties defendant in an action to determine conflicting claims to real property.—Actions to determine conflicting claims to real property. In an action brought by a person out of possession of real property, to determine an adverse claim of an interest or estate therein, the person making such adverse claim and persons in possession may be joined as defendants, and if the judgment be for the plaintiff, he may have a writ for the possession of the premises, as against the defendants in the action, against whom the judgment has passed. Sec. 103. Parties in interest, when to be joined; when one or more may sue or defend for the whole.—When parties in interest joined. Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of any one who should have been joined as plaintiff can not be obtained, he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all. Sec. 104. Plaintiff may sue in one action the different parties to commercial paper or insurance policies.—Suits on commercial paper, etc. Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, and. sureties on the same or separate instruments, may all or any of them be included in the same action, at the option of the plaintiff; and all or any of them join as plaintiffs in the same action, concerning or affecting the obligation or instrument upon which they are severally liable. Where the same person is insured by two or more insurers separately in respect to the same subject and interest, such person, or the payee under the policies, or the assignee of the cause of action, or other successor in interest of such assured or payee, may join all or any of such insurers in a single action for the recovery of a loss under the several policies, and in case of judgment a several judgment must be rendered against each of such insurers according as his liability shall appear. Sec. 105. Tenants in common, and so forth, may sever in bringing or defending actions.—By tenants in common, etc. All persons holding as tenants in common, joint tenants, or coparceners, or any number less than all, may jointly or severally commence or defend any civil action or proceeding for the enforcement or protection of the rights of such party. Sec. 106. Action, when not to abate by death, marriage, or other disability; proceedings in such case.—Action, when not abated. An action or proceeding does not abate by the death, or any disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of the death or any disability of a party, the court, on motion, may allow the action or proceeding to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action or proceeding may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action or proceeding. Sec. 107. Another person may be substituted for the defendant; conflicting claims, how made.—Substitution of defendant; conflicting claims, how made. A defendant, against whom an action is pending upon a contract, or for specific personal property, may, at any time before answer, upon affidavit that a person not a party to the action makes against him, and without any collusion with him, a demand upon such contract, or for such property, upon notice to such person and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to, either party, on his depositing in court the amount claimed on the contract, or delivering the property or its value to 923such person as the court may direct; and the court may, in its discretion, make the order. And whenever conflicting claims are or may be made upon a person for or relating to personal property, or the performance of an obligation, or any portion thereof, such person may bring an action against the conflicting claimants to compel them to interplead and litigate their several claims among themselves. The order of substitution may be made and the action of interpleader may be maintained, and the applicant or plaintiff be discharged from liability to all or any of the conflicting claimants, although their titles or claims have not a common origin, or are not identical, but are adverse to and independent of one another. Sec. 108. Intervention, when it takes place, and how made.—Intervention. At any time before trial, any person, who has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both, may intervene in the action or proceeding. An intervention takes place when a third person is permitted to become a party to an action or proceeding between other persons, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, or by demanding anything adversely to both the plaintiff and the defendant, and is made by complaint, setting forth the grounds upon which the intervention rests, filed by leave of the court and served upon the parties to the action or proceeding who have not appeared, and upon the attorneys of the parties who have appeared, who may answer or demur to it within ten days from the service thereof, if served within the Canal Zone, or within forty days if served elsewhere. Sec. 109. Associates may be sued by name of association.— WhenSuits against business associates. two or more persons, associated in any business, transact such business under a common name, whether it comprises the names of such persons or not, the associates may be sued by such common name, the summons in such cases being served on one or more of the associates; and the judgment in the action shall bind the joint property of all the associates, and the individual property of the party or parties served with process, in the same manner as if all had been named defendants and had been sued upon their joint liability. Sec. 110. Court, when to decide controversy or to order other parties to be brought in.—Court, when to decide controversy or to order other parties to be brought in. The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy can not be had without the presence of other parties, the court must then order them to be brought in, and to that end may order amended and supplemental pleadings, or a cross-complaint to be filed, and summons thereon to be issued and served. And when, in an action for the recovery of real or personal property, or to determine conflicting claims thereto, a person, not a party to the action, but having an interest in the subject thereof, makes application to the court to be made a party, it may order him to be brought in, by the proper amendment. CHAPTER 7.— PLACE OF TRIAL OF CIVIL ACTIONSPLACE OF TRIAL OF CIVIL ACTIONS. Sec. 111. Place of trial of civil actions in general.— All actionsIn general. not hereinafter otherwise provided for may be brought in the division or subdivision where the defendant or necessary party defendant may reside or be found, or in the division or subdivision where the plaintiff or one of the plaintiffs resides, at the election of the plaintiff, except in cases where other special provision is made in this code. In case neither the plaintiff nor the defendant resides within the 924Canal Zone, and the action is brought to seize or obtain title to property of the defendant within the Canal Zone, the action shall be brought in the division or subdivision where the property which the plaintiff seeks to seize or obtain title to is situated or is found. Actions against executors, administrators, and guardians touching the performance of their official duties, and actions for account and settlement by them, and actions for the distribution of the estates of deceased persons among the heirs and distributees, and actions for the payment of legacies, shall be brought in the division in which the will was admitted to probate, or letters of administration were granted, or the guardian was appointed. Actions to obtain possession of real property, or to recover damages for injuries to real property, or to establish any interest or right in or to real property, shall be brought in the division where such property, or some part thereof, is situated. And in all cases process may issue from the division of the district court in which an action or special proceedings is pending, to be in force in either division, to bring in defendants and to enforce all orders and decrees of the court. The failure of the defendant to object to the venue of the action at the time of entering his appearance in the action shall be deemed a waiver on his part of all objections thereto, except in the case of actions against executors, administrators, and guardians, and for the distribution of estates and payment of legacies. Sec. 112. Actions for divorce.—Actions for divorce. Complaints for divorce shall be filed in the division of the district court in which the plaintiff resides. Vol. 42, p. 1008.(Act Cong. Sept. 21, 1922, C. 370, § 13, 42 Stat. 1008.) Cross Reference*Post*, p. 1135.Residence defined, see Civil Code, section 91. Sec. 113. Change of venue.—Change of venue. The district judge may order a change of venue in any civil case or special proceeding from one division of said court to the other, whenever in his opinion, in the interest of justice, such action becomes necessary. Such change of venue may be ordered upon the motion of the judge, on the application of either party or by consent of parties. Whenever a change of venue has been ordered by the court, the clerk shall immediately make out a true transcript of all the orders made in said cause, and certify thereto under his official seal, and transmit the same with the original papers in the case to the other division of the district, and the case shall be tried therein as if it had been instituted there originally. CHAPTER 8.— MANNER OF COMMENCING CIVIL ACTIONSMANNER OF COMMENCING CIVIL ACTIONS. Cross Reference*Ante*, p. 923.Process may issue from one division of the district court to be in force in the other, see section 111. Sec. 114. Actions, how commenced.—Complaints. Civil actions in the district court of the Canal Zone are commenced by filing a complaint. Sec. 115. Complaint, how indorsed; when summons may be issued, and how waived.—Indorsement; when summons may issue how waived. The clerk must indorse on the complaint the day, month, and year that it is filed, and at any time within one year thereafter, the plaintiff may have a summons issued, and if the action be brought against two or more defendants, who reside in different divisions, may have a summons issued for each of such divisions at the same time. But at any time within the year after the 925complaint is filed, the defendant may, in writing, or by appearing and answering or demurring, waive the issuing of summons; or, if the action be brought upon a joint contract of two or more defendants, and one of them has appeared within the year, the other or others may be served or appear after the year at any time before trial. Sec. 116. Summons, how issued, directed, and what to contain, in general.—Summons, how issued, directed, contents. The summons must be directed to the defendant, signed by the clerk, and issued under the seal of the court, and must contain: 1. The names of the parties to the action, the court in which it is brought, and the division in which the complaint is filed; 2. A direction that the defendant appear and answer the complaint within ten days, if the summons is served within the Canal Zone; within forty days, if served outside of the Canal Zone; 3. A notice that, unless the defendant so appears and answers, the plaintiff will take judgment for any money or damages demanded in the complaint as arising upon contract, or will apply to the court for any other relief demanded in the complaint. Sec. 117. Alias summons.— If the summons is returned withoutAlias summons. being served on any or all of the defendants, or if it has. been lost, the clerk, upon the demand of the plaintiff, may issue an alias summons in the same form as the original, and within such time as the original might have been served if it had not been lost or returned. Sec. 118. Summons, how served and returned, in general.— TheService, return of. summons may be served by the marshal, or by any other person over the age of eighteen, not a party to the action. A copy of the complaint must be served, with the summons, upon each of the defendants. When the summons is served by the marshal, it must be returned, with his certificate of its service and of the service of any copy of the complaint, where such copy is served, to the office of the clerk from which it issued. When it is served by any other person, it must be returned to the same place, with an affidavit of such person of its service, and of the service of a copy of the complaint, where such copy is served. Sec. 119. Service of summons, in general.— The summons mustService of summons. be served by delivering a copy thereof as follows: 1. If suit is against a foreign corporation, or a nonresident joint stock company or association doing business within the Canal Zone: To a managing or business agent, cashier or secretary, if such there be within the Canal Zone; or to any agent authorized to accept service for it. 2. If against a minor, under the age of fourteen years, residing within the Canal Zone: To such minor, personally, and also to his father, mother, or guardian; or if there be none within the Canal Zone, then to any person having the care or control of such minor, or with whom he resides, or in whose service he is employed. 3. If against a person residing within the Canal Zone who has been judicially declared to be of unsound mind, or incapable of conducting his own affairs, and for whom a guardian has been appointed: To such person, and also to his guardian. 4. In all cases where a corporation has forfeited its right to do business in the Canal Zone, by delivering a copy thereof to one of the persons who have become the trustees of the corporation and of its stockholders or members. 5. In all other cases to the defendant personally. Sec. 120. Proceedings where there are several defendants, and part only are served.—Proceedings against several defendants when not all are served. When the action is against two or more defendants jointly or severally liable on a contract, and the summons is served on one or more, but not on all of them, the plaintiff may 926proceed against the defendants served in the same manner as if they were the only defendants. Sec. 121. Cases in which service of summons may be by publication, in general.—Service by publication, in general. Where the person on whom service is to be made resides out of the Canal Zone; or has departed from the Zone; or can not, after due diligence, be found within the Zone; or conceals himself to avoid the service of summons; or is a corporation having no officer or other person upon whom summons may be served, who, after due diligence, can be found within the Zone, and the fact appears by affidavit to the satisfaction of the court, or the judge thereof; and it also appears by such affidavit, or by the verified complaint on file, that a cause of action exists against the defendant in respect to whom the service is to be made, or that he is a necessary or proper party to the action; or when it appears by such affidavit, or by the complaint on file, that it is an action which relates to or the subject of which is real or personal property in the Zone, in which such person defendant or corporation defendant has. or claims a lien or interest, actual or contingent, therein, or in which the relief demanded consists wholly or in part in excluding. such person or corporation from any interest therein, such court or judge may make an order that the service be made by the publication of the summons. Cross Reference*Post*, p. 927.Divorce actions, service by publication, see section 126. Sec. 122. Manner of publication in general.—Manner of publication. The order must direct the publication to be made in such newspaper or newspapers, to be designated by the judge, as is, or are most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, at least once a week for three consecutive weeks; but the last publication against a defendant residing out of the Zone, or absent therefrom, must not be less than forty days before the day on which the defendant is required to appear. In case of publication, where the residence of a nonresident or absent defendant is known, the judge must direct a copy of the summons and complaint to be forthwith deposited by the clerk in the postoffice, directed to the person to be served, at his place of residence. If the residence of the defendant is unknown, then to his last known place of residence with the request to forward if not called for in five days. In any case where service by publication may be ordered, the court or judge, upon application of the plaintiff, shall authorize personal service upon the defendant outside of the Canal Zone. Such service shall be made by delivering to the defendant in person a true copy of the summons and the complaint, and may be made by any person not a party to or otherwise interested in the subject matter in controversy. Such service shall have only the effect of service of summons by publication. Return on such service shall be made under oath, with a notation of the time and place of service. Sec. 123. Proof of service, how made, in general.—Proof of service, how made. Proof of the service of summons and complaint must be as follows: 1. If served by the marshal or deputy, his certificate thereof; 2. If by any other person, his affidavit thereof; or, 3. In case of publication, the certificate of the clerk of the court to which a copy of the publication shall be attached; and a certificate of the clerk showing the deposit of a copy of the summons in the post office, if the same has been deposited; or, 4. The written admission of the defendant. In case of service otherwise than by publication, the certificate or affidavit must state the time and place of service.927 Cross Reference Proof of service in divorce actions, see section 126. Sec. 124. When jurisdiction of action is acquired.— From theWhen jurisdiction of action is acquired. time of the service of the summons and of a copy of the complaint in a civil action, where service of a copy of the complaint is required, or of the completion of the publication when service by publication is ordered, the court is deemed to have acquired jurisdiction of the parties, and to have control of all the subsequent proceedings. In all cases where a corporation has forfeited its right to do business in the Canal Zone, the persons who become the trustees of the corporation and of its stockholders or members may be sued in the corporate name of such corporation in like manner as if no forfeiture had occurred and from the time of service of the summons and of a copy of the complaint in a civil action, upon one of said trustees, or of the completion of the publication when service by publication is ordered, the court is deemed to have acquired jurisdiction of all said trustees, and to have control of all the subsequent proceedings. The voluntary appearance of a defendant is equivalent to personal service of the summons and copy of the complaint upon him. process in divorce actionsProcess in divorce actions. Sec. 125. Process in divorce actions in general.—In general. The process and practice under proceedings for divorce shall be the same as in other cases in chancery except as otherwise provided in sections 112, 126, 127, 147, and 1224 of this code or in chapter 5 of the Civil Code.*Post*, pp. 932, 1121 1132.Vol. 42, p. 1010; Vol. 44, p. 926. (Act Cong. Sept. 21, 1922, C. 370, § 16, 42 Stat. 1010; Act Cong. Dec. 29, 1926, C. 19, § 4, 44 Stat. 926.) Sec. 126. Same; process and service, personal and by publication.— Process and service, personal and by publication.*Post*, p. 1135.
(a)Upon the filing of a complaint for divorce and the affidavit required by subdivision (b), of section 91 of the Civil Code, the clerk of the district court shall issue a summons requiring the defendant to appear and answer. If the defendant can be found in the Canal Zone, such summons shall be served by delivering to the defendant in person a true copy thereof and a copy of the complaint for divorce. If the defendant can not be found in the Canal Zone, the summons shall be returned to such clerk with an indorsement thereon showing such fact.
(b)Upon application of the plaintiff, accompanied by the affidavit required by subdivision (c), if the summons has not been served as provided in subdivision (a), the court, or the judge thereof, shall enter an order directing service of a summons by publication if it appears to the satisfaction of such court or judge—
(1)That the defendant can not be found in the Canal Zone; and
(2)That a proper cause for divorce is alleged in favor of the plaintiff; and
(3)Either
(A)that the husband and wife have resided together in the Canal Zone and that the defendant has gone out of the Canal Zone and willfully refuses to return, so that process can not be personally served upon such defendant; or
(B)that the marriage was celebrated in the Canal Zone and that the defendant has abandoned the plaintiff and gone out of the Canal Zone in disregard of his or her marital obligations.
(c)The plaintiff shall file, with the application for an order directing service of summons by publication, an affidavit stating the present address of the defendant, except that if such address is not known to the plaintiff such affidavit shall state the last known address of the defendant, and that, after the exercise of due diligence, the 928plaintiff has been unable to ascertain such present address. Such affidavit shall contain such other information as the court, or the judge thereof, may require.
(d)Upon entry of an order directing service of a summons by publication the clerk of the court shall cause such summons to be published at least once each week for three successive weeks in the newspaper designated in such order. The court, or the judge thereof, shall designate a newspaper printed and published in the Canal Zone and of general circulation therein, or a newspaper printed in English or having an English section or edition and published in the Republic of Panama and having a general circulation in the Canal Zone, which, in the opinion of the court or judge, will be most likely to give notice to the defendant. The clerk of the court shall mail a copy of the summons and a copy of the complaint, not later than ten days after the first publication of the summons, addressed to the defendant at his or her last known place of residence. The court is authorized to adopt rules prescribing the form of such summons.
(e)The clerk of the court, after the last publication of a summons, shall make certificate that the summons has been published and that a copy of the summons and complaint has been mailed as required in subdivision (d), and a copy of such summons as published shall be attached to such certificate. Such certificate and copy shall be evidence of such publication and mailing.
(f)In any case where service by publication may be ordered the court, or the judge thereof, upon application of the plaintiff, shall authorize personal service upon the defendant outside the Canal Zone. Such service shall be made by delivering to the defendant in person a true copy of the summons and a copy of the complaint for divorce, and may be made by any person not a party to or otherwise interested in the subject matter in controversy. Such service shall have only the effect of service of summons by publication. Return of such summons shall be made with a notation of the time and place of service and the fact that the defendant served is a nonresident of the Canal Zone. Such return shall be made under oath. The cost of making such service shall be borne by the party at whose instance the same was made, except that if made by any officer authorized to serve process, the actual cost of such service shall be included as a part of the cost of the case.
(g)All the facts relating to the service of summons, whether made personally or by publication, must be established to the satisfaction of the court, or the judge thereof, before any decree is Vol. 42, p. 1009; Vol. 44, p. 924.entered pursuant to a complaint for divorce. (Act Cong. Sept. 21, 1922, C. 370, § 15, 42 Stat. 1009; Act Cong. Dec. 29, 1926, C. 19, § 3, 44 Stat. 924.) Cross References*Post*, p. 1136.Additional notice to defendant may be ordered in case of default, see section 95 of the Civil Code. *Post*, p. 1137.No judgment for alimony unless defendant is personally served or appears, see section 101 of the Civil Code. *Post*, p. 1135.Residence defined, see section 91 of the Civil Code. Sec. 127. Time for appearance and answer in suits for divorce.—Time for appearance and answer. In no divorce proceedings shall the cause stand for trial before the expiration of the time allowed for the defendant to appear and answer. A summons issued or published under section 126 shall require the defendant to appear and answer—
(1)Within ten days after personal service thereof if such service is had in the Canal Zone;929
(2)Within thirty days after personal service thereof if such service is had in the Republic of Panama;
(3)Within ninety days after personal service if such service is had outside of the Canal Zone and the Republic of Panama;
(4)Within thirty days after the first publication of summons if the defendant resides in the Canal Zone or the Republic of Panama; and
(5)Within ninety days after the first publication of summons if the defendant resides outside the Canal Zone and the Republic of Panama. (Act Cong. Sept. 21, 1922, C. 370, § 16, 42 Stat. 1010;Vol. 42, p. 1010; Vol. 44, p. 926. Act Cong. Dec. 29, 1926, C. 19, § 4, 44 Stat. 926.) CHAPTER 9.— PLEADINGS IN CIVIL ACTIONSPLEADINGS IN CIVIL ACTIONS. pleadings in general Sec. 128. Definition of pleadings.— The pleadings are the“Pleadings,” defined. formal allegations by the parties of their respective claims and defenses, for the judgment of the court. Sec. 129. This code prescribes the form and rules of pleadings.—Forms and rules. The forms of pleading in civil actions, and the rules by which the sufficiency of the pleadings is to be determined, are those prescribed in this code. Sec. 130. What pleadings are allowed.— The only pleadingsWhat pleadings allowed. allowed on the part of the plaintiff are: 1. The complaint; 2. The demurrer to the answer; 3. The demurrer to the cross-complaint; 4. The answer to the cross-complaint. And on the part of the defendant: 1. The demurrer to the complaint; 2. The answer; 3. The cross-complaint; 4. The demurrer to the answer to the cross-complaint. complaintComplaint. Sec. 131. Complaint, first pleading.— The first pleading on theFirst pleading. part of the plaintiff is the complaint. Sec. 132. Complaint, what to contain.— The complaint mustContents. contain: 1. The title of the action, the name of the court and division in which the action is brought, and the names of the parties to the action; 2. A statement of the facts constituting the cause of action, in ordinary and concise language; 3. A demand of the relief which the plaintiff claims. If the recovery of money or damages be demanded, the amount thereof must be stated. Sec. 133. Statement of facts in divorce complaint.— In theStatement of facts in divorce complaint. action for divorce the complaint must set forth, among other matters, as near as can be ascertained, the following facts:
(1)The State or country in which the parties were married.
(2)The date of marriage.
(3)The date of separation.
(4)The number of years from marriage to separation.
(5)The number of children of the marriage, if any, and if none, a statement of that fact.
(6)The ages of the minor children.930 Sec. 134. Causes of action which may be united; causes united must belong to one class.—Causes of action which may be united. The plaintiff may unite several causes of action in the same complaint, where they all arise out of: 1. Contracts, express or implied; 2. Claims to recover damages for the withholding of specific real property, or for waste committed thereon, and the rents and profits of the same; 3. Claims to recover specific personal property, with or without damages for the withholding thereof; 4. Claims against a trustee by virtue of a contract or by operation of law; 5. Injuries to character; 6. Injuries to person; 7. Injuries to property; 8. Claims arising out of the same transaction, or transactions connected with the same subject of action, and not included within one of the foregoing subdivisions of this section. Must belong to one class.The causes of action so united must all belong to one only of these classes, and must affect all the parties to the action, and not require different places of trial, and must be separately stated; but an action for malicious arrest and prosecution, or either of them, may be united with an action for either an injury to character or to the person; provided, however, that in any action brought by the husband and wife, to recover damages caused by any injury to the wife, all consequential damages suffered or sustained by the husband alone, including loss of the services of his said wife, moneys expended and indebtedness incurred by reason of such injury to his said wife, may be alleged and recovered without separately stating such cause of action arising out of such consequential damages suffered or sustained by the husband; provided, further, that causes of action for injuries to person and injuries to property, growing out of the same tort, may be joined in the same complaint, and it is not required that they be stated separately. demurrer to complaintDemurrer to complaint. Sec. 135. When defendant may demur.—When defendant may demur. The defendant may demur to the complaint within the time required in the summons to answer, when it appears upon the face thereof, either: 1. That the court has no jurisdiction of the person of the defendant, or the subject of the action; 2. That the plaintiff has not legal capacity to sue; 3. That there is another action pending between the same parties for the same cause; 4. That there is a defect or misjoinder of parties plaintiff or defendant; 5. That several causes of action have been improperly united, or not separately stated; 6. That the complaint does not state facts sufficient to constitute a cause of action; 7. That the complaint is ambiguous; 8. That the complaint is unintelligible; or, 9. That the complaint is uncertain. Sec. 136. Demurrer must specify grounds; may be taken to part; may answer and demur at same time.—Demurrer must specify grounds; may be taken in part; may answer and demur at same time. The demurrer must distinctly specify the grounds upon which any of the objections to the complaint are taken. Unless it does so, it may be disregarded. It may be taken to the whole complaint, or to any of the causes of action stated therein, and the defendant may demur and answer at the same time.931 Sec. 137. What proceedings are to be had when complaint is amended.—Proceedings when, complaint amended. If the complaint is amended, a copy of the amendments must be filed, or the court may, in its discretion, require the complaint as amended to be filed, and a copy of the amendments or amended complaint must be served upon the defendants affected thereby. The defendant must answer the amendments, or the complaint as amended, within ten days after service thereof, or such other time as the court may direct, and judgment by default may be entered upon failure to answer, as in other cases. Sec. 138. Objection not appearing on complaint, may be taken by answer.—Objection not appearing on complaint, may be taken by answer.*Ante*, p. 930. When any of the matters enumerated in section 135 do not appear upon the face of the complaint, the objection may be taken by answer. Sec. 139. Objections, when deemed waived.— If no objection beWhen deemed waived. taken, either by demurrer or answer, the defendant must be deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action. answerAnswer. Sec. 140. Answer, what to contain.— The answer of the defendantContents. shall contain: 1. A general or specific denial of the material allegations of the complaint controverted by the defendant. 2. A statement of any new matter constituting a defense or counterclaim. If the complaint be verified, the denial of each allegation controverted must be specific, and be made positively, or according to the information and belief of the defendant. If the defendant has no information or belief upon the subject sufficient to enable him to answer an allegation of the complaint, he may so state in his answer, and place his denial on that ground. If the complaint be not verified, a general denial is sufficient, but only puts in issue the material allegations of the complaint. Sec. 141. Actions to recover insurance; what defendant claiming exemption must set up.—Actions to recover insurance; what defendant claiming exemption must plead. In an action to recover upon a contract of insurance wherein the defendant claims exemption from liability upon the ground that, although the proximate cause of the loss was a peril insured against, the loss was remotely caused by or would not have occurred but for a peril excepted in the contract of insurance, the defendant shall in his answer set forth and specify the peril which was the proximate cause of the loss, in what manner the peril excepted contributed to the loss or itself caused the peril insured against, and if he claim that the peril excepted caused the peril insured against, he shall in his answer set forth and specify upon what premises or at what place the peril excepted caused the peril insured against. Sec. 142. When counter claim may be set up.— The counterclaimWhen counterclaim may be set up. mentioned in section 140 must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action: 1. A cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action; 2. In an action arising upon contract; any other cause of action arising also upon contract and existing at the commencement of the action.932 Sec. 143. When defendant omits to set up counterclaim.—When defendant omits to plead. If the defendant omits to set up a counterclaim upon a cause arising out of the transaction set forth in the complaint as the foundation of the plaintiff’s claim, neither he nor his assignee can afterwards maintain an action against the plaintiff therefor. Sec. 144. Counterclaim not barred by death or assignment.—Counterclaim not barred by death or assignment. When cross demands have existed between persons under such circumstances that, if one had brought an action against the other, a counterclaim could have been set up, the two demands shall be deemed compensated, so far as they equal each other, and neither can be deprived of the benefit thereof by the assignment or death of the other. Sec. 145. Answer may contain several grounds of defense; defendant may answer part and demur to part of complaint.—Contents of answer, etc. The defendant may set forth by answer as many defenses and counterclaims as he may have. They must be separately stated, and the several defenses must refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished. The defendant may also answer one or more of the several causes of action stated in the complaint and demur to the residue. Sec. 146. Cross-complaint, in general.—Cross-complaint, in general. Whenever the defendant seeks affirmative relief against any party, relating to or depending upon the contract, transaction, matter, happening or accident upon which the action is brought, or affecting the property to which the action relates, he may, in addition to his answer, file at the same time, or by permission of the court subsequently, a cross-complaint. The cross-complaint must be served upon the parties affected thereby, and such parties may demur or answer thereto as to the original complaint. If any of the parties affected by the cross-complaint have not appeared in the action, a summons upon the cross-complaint must be issued and served upon them in the same manner as upon the commencement of an original action. Sec. 147. Cross-complaint for divorce and proceedings thereon.—Divorce, etc., action. In addition to an answer, the defendant may file a cross-complaint for divorce; and when filed the court shall decree the divorce to the party legally entitled thereto. If the original complaint be dismissed after the filing of the cross-complaint, the defendant may proceed to the trial of the cross-complaint without further notice to the adverse party; and the case upon such cross-complaint shall in all things be governed by the same rules applicable to a case on Vol. 42, p. 1010.an original complaint. (Act Cong. Sept. 21, 1922, C. 370, § 19, 42 Stat. 1010.) demurrer to answerDemurrer to answer. Sec. 148. When plaintiff may demur to answer.—By plaintiff. The plaintiff may within ten days after the service of the answer demur thereto, or to one or more of the several defenses or counterclaims set up therein. Sec. 149. Grounds of demurrer.—Grounds of. The demurrer may be taken upon one or more of the following grounds: 1. That several causes of counterclaim have been improperly joined, or not separately stated; 2. That the answer does not state facts sufficient to constitute a defense or counterclaim; 3. That the answer is ambiguous; 4. That the answer is unintelligible; or 5. That the answer is uncertain.933 verification of pleadingsPleadings. Sec. 150. Verification of pleadings.— Every pleading must beVerification of. subscribed by the party or his attorney; and when the complaint is verified, or when the Government, or any officer of the Government, in his official capacity, is plaintiff, the answer must be verified, unless the admission of the truth of the complaint might subject the party to a criminal prosecution, or, unless an officer of the Government, in his official capacity, is defendant. In all cases of a verification of a pleading, the affidavit of the party must state that the same is true of his own knowledge, except as to the matters which are therein stated on his information or belief, and as to those matters that he believes it to be true; and where a pleading is verified, it must be by the affidavit of a party, unless the parties are absent from the division where the attorney has his office, or from some cause unable to verify it, or the facts are within the knowledge of his attorney or other person verifying the same. When the pleading is verified by the attorney, or any other person except one of the parties, he must set forth in the affidavit the reasons why it is not made by one of the parties. When a corporation is a party, the verification may be made by any officer thereof. When the Government, or any officer of the Government in his official capacity, is plaintiff, the complaint need not be verified. Sec. 151. Copy of written instrument contained in complaint admitted, unless answer is verified.—Admittance of copy of instrument in complaint, etc. When an action is brought upon a written instrument, and the complaint contains a copy of such instrument, or a copy is annexed thereto, the genuineness and due execution of such instrument are deemed admitted, unless the answer denying the same be verified. Sec. 152. When defense is founded on written instrument set out in answer, its execution admitted, unless dented by plaintiff under oath.—In defense. When the defense to an action is founded on a written instrument, and a copy thereof is contained in the answer, or is annexed thereto, the genuineness and due execution of such instrument are deemed admitted, unless the plaintiff file with the clerk, within ten days after receiving a copy of the answer, an affidavit denying the same, and serve a copy thereof on the defendant. Sec. 153. Exceptions to rules prescribed by two preceding sections.—Exceptions. But the execution of the instrument mentioned in sections 151 and 152, is not deemed admitted by a failure to deny the same under oath, if the party desiring to controvert the same is, upon demand, refused an inspection of the original. Such demand must be in writing, served by copy, upon the adverse party or his attorney, and filed with the papers in the case. general rules of pleadingGeneral rules of pleading. Sec. 154. Pleadings to be liberally construed.— In the constructionTo be liberally construed. of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties. Sec. 155. Sham and irrelevant answers, and so forth, mat be stricken out.—Irrelevant answers, etc. Sham and irrelevant answers, and irrelevant and redundant matter inserted in a pleading, may be stricken out, upon such terms as the court may, in its discretion, impose. Sec. 156. How to state an account in a pleading.— It is notStating an account. necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party, within five days after a demand thereof in writing, a copy of the 934account, or be precluded from giving evidence thereof. The court or judge may order a further account when the one delivered is too general, or is defective in any particular. Sec. 157. Description of real property in a pleading.—Description of real property. In an action for the recovery of real property, it must be described in the complaint with such certainty as to enable an officer, upon execution, to identify it. Sec. 158. Judgments, how pleaded.—Judgments, how pleaded. In pleading a judgment or other determination of a court, officer, or board, it is not necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading must establish on the trial the facts conferring jurisdiction. Sec. 159. Conditions precedent, how to be pleaded.—Conditions precedent. In pleading the performance of conditions precedent in a contract, it is not necessary to state the facts showing such performance, but it may be stated generally that the party duly performed all the conditions on his part, and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing such performance. Sec. 160. Statute of limitations, how pleaded.—Statute of limitations. In pleading the statute of limitations it is not necessary to state the facts showing the defense, but it may be stated generally that the cause of action is barred by the provisions of section ___ (giving the number of the section and subdivision thereof, if it is so divided, relied upon) of the Code; and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing that the cause of action is so barred. Sec. 161. Libel and slander, how stated in complaint.—Libel and slander, how stated in complaint. In an action for libel or slander it is not necessary to state in the complaint any extrinsic facts for the purpose of snowing the application to the plaintiff of the defamatory matter out of which the cause of action arose; but it is sufficient to state, generally, that the same was published or spoken concerning the plaintiff; and if such allegation be controverted, the plaintiff must establish on the trial that it was so published or spoken. Sec. 162. Answer in such cases.—Answer in such cases. In the actions mentioned in section 161 the defendant may, in his answer, allege both the truth of the matter charged as defamatory, and any mitigating circumstances, to reduce the amount of damages; and whether he prove the justification or not, he may give in evidence the mitigating circumstances. Sec. 163. Allegations not denied, when to be deemed true; when to be deemed controverted.—Allegations not denied when deemed true; when deemed controverted. Every material allegation of the complaint, not controverted by the answer, must, for the purposes of the action, be taken as true; the statement of any new matter in the answer in avoidance or constituting a defense or counterclaim, must, on the trial, be deemed controverted by the opposite party. Sec. 164. A material allegation defined.—“Material allegation,” defined. A material allegation in a pleading is one essential to the claim or defense, and which could not be stricken from the pleading without leaving it insufficient. Sec. 165. Supplemental complaint and answer.—Supplemental complaint and answer. The plaintiff and defendant, respectively, may be allowed, on motion, to make a supplemental complaint or answer, alleging facts material to the case occurring after the former complaint or answer. Sec. 166. Pleadings subsequent to complaint must be filed and served.—Pleadings subsequent to complaint; filing; service of. All pleadings subsequent to the complaint, must be filed with the clerk, and copies thereof served upon the adverse party or his attorney.935 variance; mistakes in pleading and amendmentsVariance; mistakes in pleadings and amendments. Sec. 167. Material variance, now provided for.— No varianceHow provided for.When material. between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it appears that a party has been so misled, the court may order the pleading to be amended, upon such terms as may be just. Sec. 168. Immaterial variance, how provided for.— Where theImmaterial. variance is not material, as provided in section 167, the court may direct the fact to be found according to the evidence, or may order an immediate amendment, without costs. Sec. 169. What not to be deemed a variance.— Where, however,What not to be deemed a variance. the allegation of the claim or defense to which the proof is directed, is unproved, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance, within sections 167 and 168, but a failure of proof. Sec. 170. Amendments of course, and effect of demurrer.— AnyAmendments of course, and effect of demurrer. pleading may be amended once by the party of course, and without costs, at any time before answer or demurrer filed, or after demurrer and before the trial of the issue of law thereon, by filing the same as amended and serving a copy on the adverse party, who may have ten days thereafter in which to answer or demur to the amended pleading. A demurrer is not waived by filing an answer at the same time; and when the demurrer to a complaint is overruled and there is no answer filed, the court may, upon such terms as may be just, allow an answer to be filed. If a demurrer to the answer be overruled, the facts alleged in the answer must be considered as denied,*Ante*, p. 934. to the extent mentioned in section 163. Sec. 171. Pleading may be amended.— The court may in furtherancePleadings; amendment of. of justice, and on such terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon such terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. Relief from judgment or order; time for application; procedureRelief from judgment or order..—And may, also, upon such terms as may be just, relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect; provided, that application therefor beApplication; time for making.Procedure. made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken (and provided, further, that said application must be accompanied with a copy of the answer, or other pleading proposed to be filed therein, otherwise said application shall not be granted). When from any cause the summons in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant or his legal representative, at any time within one year after the rendition of any judgment in such action, to answer to the merits of the original action. Action to recover personal property.—When, in an action toPersonal property, recovery. recover the possession of personal property, the person making any affidavit did not truly state the value of the property, and the officer taking the property, or the sureties on any bond or undertaking is sued for taking the same, the officer or sureties may in their 936answer set up the true value of the property, and that the person in whose behalf said affidavit was made was entitled to the possession of the same when said affidavit was made, or that the value in the affidavit stated was inserted by mistake, the court shall disregard the value as stated in the affidavit, and give judgment according to the right of possession of said property at the time the affidavit was made. Sec. 172. Suing a party by a fictitious name, when allowed.—Suing party by fictitious name. When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly. Sec. 173. No error or defect to be regarded unless it affects substantial rights.—Immaterial errors, etc., disregarded. The court must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties. No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown. Sec. 174. Time to amend or answer, running of.—Time to amend or answer, running of. When a demurrer to any pleading is sustained or overruled, and time to amend or answer is given, the time so given runs from the service of notice of the decision or order. CHAPTER 10.— PROVISIONAL REMEDIES IN CIVIL ACTIONSPROVISIONAL REMEDIES IN CIVIL ACTIONS. arrest and bail Sec. 175. No person to be arrested except as prescribed by this code.—Arrest in civil actions. No person can be arrested in a civil action, except as prescribed in this code. Sec. 176. When. Cases in which defendant may be arrested.— The defendant may be arrested, as hereinafter prescribed, in the following cases: 1. In an action for the recovery of money or damages on a cause of action arising upon contract, express or implied, when the defendant is about to depart from the Canal Zone with intent to defraud his creditors. 2. In an action for a fine or penalty, or for money or property embezzled, or fraudulently misapplied, or converted to his own use, by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity; or for misconduct or neglect in office, or in a professional employment, or for a willful violation of duty. 3. In an action to recover the possession of personal property unjustly detained, when the property, or any part thereof, has been concealed, removed, or disposed of, to prevent its being found or taken by the marshal.937 4. When the defendant has been guilty of a fraud in contracting the debt or incurring the obligation for which the action is brought; or in concealing or disposing of the property for the taking, detention, or conversion, of which the action is brought. 5. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors. Sec. 177. Affidavit to obtain order, what to contain.— TheOrder for arrest; contents. order for the arrest of the defendant may be made whenever it appears to the judge, by the affidavit of the plaintiff, or some other person, that a sufficient cause of action exists, and that the case is one of those mentioned in section 176. The affidavit must be either positive or upon information and belief; and when upon information and belief, it must state the facts upon which the information and belief are founded. If an order of arrest be made, the affidavit must be filed with the clerk of the court. Sec. 178. Security by plaintiff before order of arrest.—Security by plaintiff before order made. Before making the order, the judge must require a written undertaking on the part of the plaintiff, with sureties in an amount to be fixed by the judge, which must be at least $500, to the effect that the plaintiff will pay all costs which may be adjudged to the defendant, and all damages which he may sustain by reason of the arrest, if the same be wrongful, or without sufficient cause, not exceeding the sum specified in the undertaking. The undertaking must be filed with the clerk of the court. Sec. 179. Order, when made, and its form.— The order may beOrder, when made; form. made at the time of the issuing of the summons,, or any time afterwards before judgment. It must require the marshal forthwith to arrest the defendant and hold him to bail in a specified sum, and to return the order at a time therein mentioned, to the clerk of the court. Sec. 180. Affidavit and order to be delivered to the marshal, and copy to defendant.— The order of arrest, with a copy of theDelivery of affidavit and order; copy to defendant. affidavit upon which it is made, must be delivered to the marshal, who, upon arresting the defendant, must deliver to him a copy of the affidavit, and also, if desired, a copy of the order of arrest. Sec. 181. Arrest, how made.— The marshal must execute theHow arrest made. order by arresting the defendant and keeping him in custody until discharged by law. Sec. 182. Defendant to be discharged on bail or deposit.— TheDefendant to be discharged on ball or deposit. defendant, at any time before execution, must be discharged from the arrest, either upon giving bail or upon depositing the amount mentioned in the order of arrest. Sec. 183. Bail, how given.— The defendant may give bail by causingBall, how given. a written undertaking to be executed by two or more sufficient sureties, to the effect that they are bound in the amount mentioned in the order of arrest, that the defendant will at all times render himself amenable to the process of the court, during the pendency of the action, and to such as may be issued to enforce the judgment therein, or that they will pay to the plaintiff the amount of any judgment which may be recovered in the action. Sec. 184. Surrender of defendant.— At any time before judgment,Surrender of defendant. or within ten days thereafter, the bail may surrender the defendant in their exoneration; or he may surrender himself to the marshal. Sec. 185. Same.— For the purpose of surrendering the defendant,Arrest by bail, etc. the bail, at any time or place before they are finally charged, may themselves arrest, or, by a written authority indorsed on a certified copy of the undertaking, may empower the marshal to do so. Upon the arrest of defendant by the marshal, or upon his delivery to the 938marshal by the bail, or upon his own surrender, the bail are exonerated, if such arrest, delivery, or surrender take place before the expiration of ten days after judgment; but if such arrest, delivery, or surrender be not made within ten days after judgment, the bail are finally charged on their undertaking, and bound to pay the amount of the judgment within ten days thereafter. Sec. 186. Bail, how proceeded against.—Procedure against bail. If the bail neglect or refuse to pay the judgment within ten days after they are finally charged, an action may be commenced against such bail for the amount of the original judgment. Sec. 187. Bail, how exonerated.—How exonerated. The bail are exonerated by the death of the defendant or his imprisonment in jail or in the penitentiary, or by his legal discharge from the obligation to render himself amenable to the process. Sec. 188. Delivery of undertaking to plaintiff, and its acceptance or rejection by him.—Delivery of undertaking to plaintiff; acceptance or rejection. Within the time limited for that purpose, the marshal must file the order of arrest in the office of the clerk of the court in which the action is pending, with his return indorsed thereon, together with a copy of the undertaking of the bail. The original undertaking he must retain in his possession until filed, as herein provided. The plaintiff, within ten days thereafter, may serve upon the marshal a notice that he does not accept the bail, or he is deemed to have accepted them, and the marshal is exonerated from liability. If no notice be served within ten days, the original undertaking must be filed with the clerk of the court. Sec. 189. Notice of justification; new undertaking, if other bail.—Notice of justification; new undertaking, if other bail. Within five days after the receipt of notice, the marshal or defendant may give to the plaintiff or his attorney notice of the justification of the same, or other bail (specifying the places of residence and occupations of the latter), before the judge or clerk of the court, at a specified time and place; the time to be not less than five nor more than ten days thereafter, except by consent of parties. In case other bail be given, there must be a new undertaking. Sec. 190. Qualifications of bail.—Qualifications of bail. The qualifications of bail are as follows: 1. Each of them must be a resident of the Canal Zone. 2. Each must be worth the amount specified in the order of the arrest, or the amount to which the order is reduced, as provided in this subchapter, over and above all his debts and liabilities, exclusive of property exempt from execution; but the judge or clerk, on justification, may allow more than two sureties to justify severally, in amounts less than that expressed in the order, if the whole justification be equivalent to that of two sufficient bail. Sec. 191. Justification of bail.—Justification of. For the purpose of justification, each of the bail must attend before the judge or clerk, at the time and place mentioned in the notice, and may be examined on oath on the part of the plaintiff, touching his sufficiency, in such manner as the judge or clerk, in his discretion, may think proper. The examination must be reduced to writing, and subscribed by the bail, if required by the plaintiff. Sec. 192. Allowance of bail.—Allowance of. If the judge or clerk find the bail sufficient, he must annex the examination to the undertaking, indorse his allowance thereon, and cause them to be filed, and the marshal is thereupon exonerated from liability. Sec. 193. Deposit of money with marshal.—Deposit of money with marshal. The defendant may, at the time of his arrest, instead of giving bail, deposit with the marshal the amount mentioned in the order. In case the amount of the bail be reduced, as provided in this subchapter, the defendant may deposit such amount instead of giving bail. In either case the 939marshal must give the defendant a certificate of the deposit made, and the defendant must be discharged from custody. Sec. 194. Payment of money into court by marshal.— The marshalPayment of money into court by marshal. must, immediately after the deposit, pay the same into court, and take from the clerk receiving the same two certificates of such payment, the one of which he shall deliver to the plaintiff’s attorney, and the other to the defendant. For any default in making such payment, the same proceedings may be had on the official bond of the marshal, to collect the sum deposited, as in other cases of delinquency. Sec. 195. Substituting bail for deposit.— If money is deposited,Substituting bail for deposit. as provided in sections 193 and 194, bail may be given and may justify upon notice, at any time before judgment; and on the filing of the undertaking and justification with the clerk, the money deposited must be refunded to the defendant. Sec. 196. Money deposited, how applied or disposed of.— WhereMoney deposited, disposition of, after judgment. money has been deposited, if it remain on deposit at the time of the recovery of a judgment in favor of the plaintiff, the clerk must, under the direction of the court, apply the same in satisfaction thereof; and after satisfying the judgment, refund the surplus, if any, to the defendant. If the judgment is in favor of the defendant, the clerk must, under like direction of the court, refund to him the whole sum deposited and remaining unapplied. Sec. 197. Marshal, when liable as bail, and his discharge from liability.—Marshal, when liable as bail; discharge from liability. If, after being arrested, the defendant escape or is rescued, the marshal is liable as bail; but he may discharge himself from such liability by the giving of bail at any time before judgment. Sec. 198. Proceedings on judgment against marshal.— If a judgmentProceedings on judgment against marshal. is recovered against the marshal upon his liability as bail, and an execution thereon is returned unsatisfied in whole or in part, the same proceedings may be had on his official bond, for the recovery of the whole or any deficiency, as in other cases of delinquency. Sec. 199. Motion to vacate order of arrest or reduce bail; affidavits on motion.—Motion to vacate order of arrest or reduce bail; affidavits on motion. A defendant arrested may, at any time before the trial of the action, or if there be no trial, before the entry of judgment, apply to the court or judge, upon reasonable notice, to vacate the order of arrest or to reduce the amount of bail. If the application be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other proofs, in addition to those on which the order of arrest was made. Sec. 200. When the order vacated or bail reduced.— If, uponWhen order vacated or bail reduced. such application, it appears that there was not sufficient cause for the arrest, the order must be vacated; or if it appears that the bail was fixed too high, the amount must be reduced. claim and delivery of personal propertyClaim and delivery of personal property. Sec. 201. Delivery of personal property, when it may be claimed.—When may be claimed. The plaintiff in an action to recover the possession of personal property may, at the time of issuing the summons, or at any time before answer, claim the delivery of such property to him as provided in this subchapter. Sec. 202. Affidavit and its requisites.— Where a delivery isAffidavit. claimed, an affidavit must be made by the plaintiff, or by some one in his behalf, showing: 1. That the plaintiff is the owner of the property claimed (particularly describing it), or is entitled to the possession thereof; 2. That the property is wrongfully detained by the defendant;940 3. The alleged cause of the detention thereof, according to his best knowledge, information, and belief; 4. That it has not been taken for a tax, assessment, or fine, pursuant to a statute; or seized, under an execution or an attachment against the property of the plaintiff; or, if so seized, that it is by statute exempt from such seizure; 5. The actual value of the property. Sec. 203. Requisition to marshal to take and deliver the property.—Requisition to marshal. The plaintiff or his attorney may, thereupon, by an indorsement in writing upon the affidavit, require the marshal to take the property from the defendant. Sec. 204. Security on the part of the plaintiff, and proceedings in serving the order.—Security on part of plaintiff, and service of order. Upon a receipt of the affidavit and notice, with a written undertaking, executed by two or more sufficient sureties, approved by the marshal, to the effect that they are bound to the defendant in double the value of the property as stated in the affidavit for the prosecution of the action, for the return of the property to the defendants, if return thereof be adjudged, and for the payment to him of such sum as may from any cause be recovered against the plaintiff, the marshal must forthwith take the property described in the affidavit, if it be in the possession of the defendant or his agent, and retain it in his custody. He must, without delay, serve on the defendant a copy of the affidavit, notice, and undertaking, by delivering the same to him personally, if he can be found, or to his agent from whose possession the property is taken; or, if neither can be found, by leaving them at the usual place of abode of either, with some person of suitable age and discretion, or, if neither have any known place of abode, by putting them in the nearest post office, directed to the defendant. Sec. 205. Exception to sureties and proceedings thereon, or on failure to except.—Exception to sureties; proceedings. The defendant may, within two days after the service of a copy of the affidavit and undertaking, give notice to the marshal that he excepts to the sufficiency of the sureties. If he fails to do so, he is deemed to have waived all objections to them. When the defendant excepts, the sureties must justify on notice in like manner as upon bail on arrest; and the marshal is responsible for the sufficiency of the sureties until the objection to them is either waived or until they justify. If the defendant except to the sureties, he can not reclaim the property as provided in section 206. Sec. 206. Defendant, when entitled to redelivery.—Redelivery, when defendent entitled to. At any time before the delivery of the property to the plaintiff, the defendant may, if he do not except to the sureties of the plaintiff, require the return thereof, upon giving to the marshal a written undertaking, executed by two or more sufficient sureties, to the effect that they are bound in double the value of the property, as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if such delivery be adjudged, and for the payment to him of such sum as may, for any cause, be recovered against the defendant. If a return of the property be not so required within five days after the taking and service of notice to the defendant, it must be delivered to the plaintiff, except as provided in section 211. Sec. 207. Justification of defendant’s sureties.—Justification of defendant’s sureties. The defendant’s sureties, upon notice to the plaintiff of not less than two or more than five days, must justify before the judge or clerk of the court, in the same manner as upon bail on arrest; and upon such justification the marshal must deliver the property to the defendant. The marshal is responsible for the defendant’s sureties until they justify, or until the justification is completed or waived, and may 941retain the property until that time. If they, or others in their place, fail to justify at the time and place appointed, he must deliver the property to the plaintiff. Sec. 208. Qualification of sureties.— The qualification of suretiesQualification of sureties. must be such as are prescribed by this code, in respect to bail upon an order of arrest. Sec. 209. Property, how taken when concealed in building or inclosure.—Concealed property, how taken. If the property, or any part thereof, be concealed in a building or inclosure, the marshal must publicly demand its delivery. If it be not delivered, he must cause the building or inclosure to be broken open, and take the property into his possession. Sec. 210. Property, how kept.— When the marshal has taken property,How kept. as in this subchapter provided, he must keep it in a secure place, and deliver it to the party entitled thereto, upon receiving his fees for taking and his necessary expenses for keeping the same. Sec. 211. Claim of property by third person.— If the propertyWhen claimed by third person. taken be claimed by any other person than the defendant or his agent, and such person make affidavit of his title thereto, or right to the possession thereof, stating the grounds of such title or right, and serve the same upon the marshal, the marshal is not bound to keep the property or deliver it to the plaintiff, unless the plaintiff, on demand of him or his agent, indemnify the marshal against such claim, by an undertaking by two sufficient sureties; and no claim to such property by any other person than the defendant or his agent is valid against the marshal unless so made. Sec. 212. Notice and affidavit, when and where to be filed.—Filing of notice and affidavit. The marshal must file the notice, undertaking, and affidavit, with his proceedings thereon, with the clerk of the court, within twenty days after taking the property mentioned therein. Sec. 213. Protection of plaintiff in possession of property.—Protection of plaintiff in possession. After the property has been delivered to the plaintiff as in this subchapter provided, the court shall, by appropriate order, protect the plaintiff in possession of said property until the final determination of the action. injunctionInjunction. Sec. 214. Injunction, what is, and who may grant it.— AnDefinition of; who may grant. injunction is a writ or order requiring a person to refrain from a particular act. It may be granted by the district court, or the judge thereof, in any action brought in said court; and when granted by the judge, it may be enforced as an order of the court. Sec. 215. When injunction may be granted or may not.— AnWhen granted, injunction may be granted in the following cases: 1. When it appears by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually; 2. When it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action; 3. When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual; 4. When pecuniary compensation would not afford adequate relief; 5. Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief;9426. Where the restraint is necessary to prevent a multiplicity of judicial proceedings; 7. Where the obligation arises from a trust. When denied.An injunction can not be granted— 1. To stay a judicial proceeding pending at the commencement of the action in which the injunction is demanded, unless such restraint is necessary to prevent a multiplicity of such proceedings; 2. To prevent the execution of a public statute by officers of the law for the public benefit; 3. To prevent the breach of a contract, the performance of which would not be specifically enforced; 4. To prevent the exercise of a public or private office, in a lawful manner, by the person in possession. Sec. 216. Injunction; time of granting; service of copy.—Time of granting; service of copy. An injunction may be granted at any time before judgment upon a verified complaint, or upon affidavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exist therefor. A copy of the complaint or of the affidavits, upon which the injunction was granted, must, if not previously served, be served therewith. Notice.Preliminary injunction; temporary restraining order.Notice.—No preliminary injunction shall be granted without notice to the opposite party; nor shall any temporary restraining order be granted without notice to the opposite party, unless it shall appear from facts shown by affidavit or by the verified complaint that great or irreparable injury would result to the applicant before the matter can be heard on notice. In case a temporary restraining order shall be granted without notice, in the contingency above specified, the matter shall be made returnable on an order requiring cause to be shown why the injunction should not be granted, on the earliest day that the business of the court will admit of, but not later than ten days from the date of such order. Proceedings when hearing had.Party obtaining order must be ready; service of complaint, affidavits and points and authorities.—When the matter first comes up for hearing the party who obtained the temporary restraining order must be ready to proceed and must have served upon the opposite party at least two days prior to such hearing, a copy of the complaint and of all affidavits to be used in such application and a copy of his points and authorities in support of such application; if he be not ready, or if he shall fail to serve a copy of his complaint, affidavits and points and authorities, as herein required, the court shall dissolve the temporary restraining order. Defendant entitled to continuanceDefendant entitled to continuance.—The defendant, however, shall be entitled, as of course, to one continuance for a reasonable period, if he desires it, to enable him to meet the application for the preliminary injunction. Counter-affidavits.Counter-affidavits.—The defendant may, in response to such order to show cause, present affidavits relating to the granting of the preliminary injunction, and if such affidavits are served on the applicant at least two days prior to the hearing, the applicant shall not be entitled to any continuance on account thereof. Precedence.Precedence.—On the day upon which such order is made returnable, such hearing shall take precedence of all other matters on the calendar of said day, except older matter of the same character, and matters to which special precedence may be given by law. When the cause is at issue it shall be set for trial at the earliest possible date and shall take precedence of all other cases, except older matters of the same character, and matters to which special precedence may be given by law.943 Sec. 217. Injunction after answer.—Injunction after answer. An injunction can not be allowed after the defendant has answered, unless upon notice or upon an order to show cause; but in such case the defendant may be restrained until the decision of the court or judge granting or refusing the injunction. Sec. 218. Security upon injunction.— On granting an injunction,Security upon. the court or judge must require, except when it is granted on the application of the Government, or a wife against her husband, a written undertaking on the part of the applicant, with sufficient sureties, to the effect that he will pay to the party enjoined such damages, not exceeding an amount to be specified, as such party may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled thereto. Within five days after the service of the injunction, the person enjoined may except to the sufficiency of the sureties, and unless within five days thereafter, upon notice of not less than two days to the person enjoined, such sureties, or others in their place, justify before the judge or clerk of the court at a time and place designated in such notice, the order granting the injunction must be dissolved. Sec. 219. Motion to vacate or modify injunction; procedure.—Motion to vacate or modify injunction; procedure. If an injunction is granted without notice to the person enjoined, he may apply, upon reasonable notice to the district court or judge, to dissolve or modify the same. The application may be made upon the complaint or the affidavit on which the injunction was granted, or upon affidavit on the part of the person enjoined, with or without the answer. If the application is made upon affidavits on the part of the person enjoined, but not otherwise, the person against whom the application is made may oppose the same by affidavits or other evidence in addition to that on which the injunction was granted. attachmentAttachment. Sec. 220. Attachment, when and in what cases may issue.— TheWhen and in what cases may issue. plaintiff, at the time of issuing the summons, or at any time afterward, may have the property of the defendant attached, as security for the satisfaction of any judgment that may be recovered, unless the defendant give security to pay such judgment, as in this subchapter provided, in the following cases: 1. In an action upon a contract, express or implied, for the direct payment of money, where the contract is made or is payable in the Canal Zone, and is not secured by any mortgage or lien upon real or personal property, or any pledge of personal property, or, if originally so secured, such security has, without any act of the plaintiff, or the person to whom the security was given, become valueless. 2. In an action upon a contract, express or implied, against a defendant not residing in the Canal Zone. 3. In an action against a defendant, not residing in the Zone, to recover a sum of money as damages, arising from an injury to property in the Zone, in consequence of negligence, fraud, or other wrongful act. Sec. 221. Affidavit for attachment.— The clerk of the court mustAffidavit for. issue the writ of attachment upon receiving an affidavit by or on behalf of the plaintiff showing: 1. The facts specified in section 220 which entitle him to the writ; 2. The amount of the indebtedness claimed, over and above all legal set-offs or counterclaims, or the amount claimed as damages; and 3. That the attachment is not sought, and the action is not prosecuted, to hinder, delay, or defraud any creditor of the defendant.944 Sec. 222. Undertaking on attachment; exceptions to sureties.—Undertaking on. Before issuing the writ, the clerk must require a written undertaking on the part of the plaintiff, in the sum not less than $200 and not exceeding the amount claimed by the plaintiff, with sufficient sureties, to the effect that if the defendant recovers judgment, the plaintiff will pay all costs that may be awarded to the defendant and all damages which he may sustain by reason of the attachment, not Exceptions to sureties.exceeding the sum specified in the undertaking, and that if the attachment is discharged on the ground that the plaintiff was not entitled thereto under section 220, the plaintiff will pay all damages which the defendant may have sustained by reason of the attachment, not exceeding the sum specified in the undertaking. At any time after the issuing of the attachment, but not later than five days after actual notice of the levy thereof, the defendant may except to the sufficiency of the sureties. If he fails to do so, he is deemed to have waived all objections to them. When excepted to, the plaintiff’s sureties, upon notice to the defendant of not less than two or more than five days, must justify before the judge or clerk of the court in the same manner as upon bail on arrest; and upon failure to justify, or if others in their place fail to justify, at the time and place appointed, the judge or clerk must issue an order vacating the writ of attachment. Sec. 223. Writ, to whom directed and what to state.—Writ, to whom directed; contents. The writ must be directed to the marshal, and must require him to attach and safely keep all the property of such defendant within the Canal Zone not exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff’s demand against such defendant, the amount of which must be stated in conformity with the complaint, unless such defendant give him security by the undertaking of at least two sufficient sureties in an amount sufficient to satisfy such demand against such defendant, besides costs, or in an amount equal to the value of the property of such defendant which has been or is about to be attached; in which case to take such undertaking. If more than one defendant.If more than one defendant.—In the event that the action is against more than one defendant, any defendant whose property has been or is about to be attached in such action may give the marshal such undertaking, and the marshal shall take the same, and such undertaking shall not subject such defendant to or be answerable for any demand against any other defendant, nor shall the marshal thereby be prevented from attaching or be obliged to release from attachment, any property of any other defendant: *Provisos*.Sworn statement to be filed.*Provided*, *however*, That such defendant, at the time of giving such undertaking to the marshal, shall file with the marshal, a statement, duly verified under oath, wherein such defendant shall aver and declare that the other defendant or defendants in the action Interest in property.in which said undertaking was given has or have not any interest or claim of any nature whatsoever in or to said property. Such statement must further contain the character of such defendant’s title and the manner in which he acquired title to such attached Judicial approval.property: *Provided further*, That before said attachment shall be released, the undertaking required by this section must be approved by the judge or, in the absence or disability of the judge, by the clerk of the court. Sec. 224. Shares of stock and debts due defendant, how attached and disposed of.—Shares of stock, etc., attachment of. The rights or shares which the defendant may have in the stock of any corporation or company, together with the interest and profit thereon, and all debts due such defendant, and all other property in the Canal Zone of such defend-945ant not exempt from execution, may be attached, and if judgment be recovered, be sold to satisfy the judgment and execution. Sec. 225. How real and personal property shall be attached.—Attachment of real and personal property. The marshal to whom the writ is directed and delivered, must execute the same without delay, and if the undertaking mentioned in section 223 be not given, as follows: 1. Real property must be attached, by filing with the registrar of property a copy of the writ, together with a description of the property attached, and a notice that it is attached; and by leaving a similar copy of the writ, description, and notice with an occupant of the property, if there is one; if not, then by posting the same in a conspicuous place on the property attached. 2. Real property, or an interest therein, belonging to the defendant, and held by any other person, must be attached, by filing with the registrar of property a copy of the writ, together with a description of the property, and a notice that such real property, and any interest of the defendant therein, held by or standing in the name of such other person (naming him), are attached; and by leaving with the occupant, if any, and with such other person, or his agent, if known and within the Canal Zone, or at the residence of either, if within the Canal Zone, a copy of the writ, with a similar description and notice. If there is no occupant of the property, a copy of the writ, together with such description and notice, must be posted in a conspicuous place upon the property. The registrar must index such attachment when filed, in the names, both of the defendant and of the person by whom the property is held. 3. Personal property, capable of manual delivery, must be attached by taking it into custody. 4. Stocks or shares, or interest in stocks or shares, of any corporation or company, must be attached by leaving with the president, or other head of the same, or the secretary, cashier, or other managing agent thereof, a copy of the writ, and a notice stating that the stock or interest of the defendant is attached, in pursuance of such writ. 5. Debts and credits and other personal property, not capable of manual delivery, must be attached by leaving with the person owing such debts, or having in his possession, or under his control, such credits and other personal property, or with his agent, a copy of the writ, and a notice that the debts owing by him to the defendant, or the credits and other personal property in his possession, or under his control, belonging to the defendant, are attached in pursuance of such writ, except in the case of attachment of growing crops, a copy of the writ, together with a description of the property attached, and a notice that it is attached, shall be recorded the same as in the attachment of real property. Sec. 226. Attachment lien on real property.— The lien of the attachment on real property attaches and becomes effective upon theAttachment lien on real property. filing of a copy of the writ, together with a description of the property attached and a notice that it is attached, with the registrar of property: *Provided*, *however*, That in event that the marshal*Proviso*.When lien to cease. does not complete the execution of said writ in the manner prescribed in section 225 of this code within a period of fifteen days next following said filing in the registrar’s office then said lien shall cease at the expiration of said period of fifteen days. Expiration; extension.—The attachment whether heretoforeExpiration; extension. levied or hereafter to be levied shall be a lien upon all real property attached for a period of three years after the date of levy unless sooner released or discharged as provided in this subchapter, by 946dismissal of the action or by entry and docketing of judgment in the action. At the expiration of three years the lien shall cease and any proceeding or proceedings against the property under the *Proviso*.Motion for extension.attachment shall be barred: *Provided*, That upon motion of a party to the action, made not less than five nor more than sixty days before the expiration of said period of three years, the court in which the action is pending may extend the time of said lien for a period not exceeding two years from the date on which the original lien would expire, and the lien shall be extended for the period specified in the order upon the filing, before the expiration of the existing lien, of a certified copy of the order with the registrar of property. The lien may be extended from time to time in the manner herein prescribed. Sec. 227. Attorney to give written instructions to marshal what to attach.—Attorney to give written instructions to marshal what to attach. Upon receiving information in writing from the plaintiff or his attorney, that any person has in his possession, or under his control, any credits or other personal property belonging to the defendant, or is owing any debt to the defendant, the marshal must serve upon such person a copy of the writ, and a notice that such credits, or other property or debts, as the case may be, are attached in pursuance of such writ. Sec. 228. Garnishment, when garnishee liable to plaintiff.—Garnishment, when garnishee liable to plaintiff. All persons having in their possession, or under their control, any credits or other personal property belonging to the defendant, or owing any debts to the defendant at the time of service upon them of a copy of the writ and notice, as provided in sections 226 and 227, shall be, unless such property be delivered up or transferred, or such debts be paid to the marshal, liable to the plaintiff for the amount of such credits, property, or debts, until the attachment be discharged, or any judgment recovered by him be satisfied. Sec. 229. Citation to garnishee to appear before the court or judge.—Citation to garnishee to appear. Any person owing debts to the defendant, or having in his possession or under his control, any credits or other personal property belonging to the defendant, may be required to attend before the court or judge, or in case of the absence or disability of the judge by the clerk of the court, and be examined on oath respecting the same. The defendant may also be required to attend for the purpose of giving information respecting his property, and may be examined on oath. The court or judge may, after such examination, order personal property, capable of manual delivery, to be delivered to the marshal on such terms as may be just, having reference to any liens thereon or claims against the same, and a memorandum to be given of all other personal property, containing the amount and description thereof. Sec. 230. Inventory, how made; party refusing to give memorandum may be compelled to paycosts.—Inventory, how made. The marshal must make a full inventory of the property attached, and return the same with the writ. To enable him to make such return as to debts and credits attached, he must request, at the time of service, the party owing the debt or having the credit to give him a memorandum, stating the amount and description of each; and if such memorandum be Payment of costs by party refusing to give memorandum.refused, he must return the fact of refusal with the writ. The party refusing to give the memorandum may be required to pay the costs of any proceeding taken for the purpose of obtaining information respecting the amounts and description of such debt or credit. Sec. 231. Perishable property, how sold; disposition of proceeds; accounts to be collected without suit.—Perishable property, how sold; disposition of proceeds. If any of the property attached be perishable, the marshal must sell the same in the manner in which such property is sold on execution. The proceeds, and 947other property attached by him, must be retained by him to answer any judgment that may be recovered in the action, unless sooner subjected to execution upon another judgment recovered previous to the issuing of the attachment. Debts and credits attached may beCollection of accounts. collected by him, if the same can be done without suit. The marshal’s receipt is a sufficient discharge for the amount paid. Sec. 232. Property attached may be sold as under execution, if the interests of the parties require.—Sale of attached property. Whenever property has been taken by an officer under a writ of attachment, and it is made to appear satisfactorily to the court or the judge thereof that the interest of the parties to the action will be subserved by a sale thereof, the court or judge may order such property to be sold in the same manner as property is sold under an execution, and the proceeds to be deposited in the court to abide the judgment in the action. Such order can be made only upon notice to the adverse party or his attorney, in case such party has been personally served with a summons in the action. Sec. 233. When property claimed by a third party, how tried.—Claims of third party, how tried. If any personal property attached be claimed by a third person as his property, the same rules shall prevail as to the contents and making of said claim, and as to the holding of said property, as in*Post*, p. 970. case of a claim after levy upon execution, as provided for in section 357. Sec. 234. If plaintiff obtains judgment, how satisfied.— If judgmentSatisfaction of judgment. be recovered by the plaintiff, the marshal must satisfy the same out of the property attached by him which has not been delivered to the defendant, or a claimant as hereinbefore provided, or subjected to execution on another judgment recovered previous to the issuing of the attachment, if it be sufficient for that purpose: 1. By paying to the plaintiff the proceeds of all sales of perishable property sold by him, or of any debts or credits collected by him, or so much as shall be necessary to satisfy the judgment; 2. If any balance remain due, and an execution shall have been issued on the judgment, he must sell under the execution so much of the property, real or personal, as may be necessary to satisfy the balance, if enough for that purpose remain in his hands. Notices of the sales must be given, and the sales conducted as in other cases of sales on execution. Sec. 235. When there remains a balance due, how collected.—Collection of balance due. If, after selling all the property attached by him remaining in his hands, and applying the proceeds, together with the proceeds of any debts or credits collected by him, deducting his fees, to the payment of the judgment, any balance shall remain due, the marshal must proceed to collect such balance, as upon an execution in other cases. Whenever the judgment shall have been paid, the marshal, upon reasonable demand, must deliver over to the defendant the attached property remaining in his hands, and any proceeds of the property attached unapplied on the judgment. Sec. 236. When suits may be commenced on the undertaking.—When suits may be commenced on the undertaking.*Ante*, p. 944.*Post*, p. 948. If the execution be returned, unsatisfied, in whole or in part, the plaintiff may prosecute any undertaking given pursuant to section 223 or section 239, or he may proceed, as in other cases, upon the return of an execution. Sec. 237. If defendant recovers judgment, what the marshal is to deliver.—If defendant recovers judgment, what marshal to deliver. If the defendant recovers judgment against the plaintiff and no appeal is perfected and undertaking executed, any undertaking received in the action, all the proceeds of sales and money collected by the marshal, and all the property attached remaining in the marshal’s hands, must be delivered to the defendant or his 948agent, the order of attachment be discharged, and the property released therefrom. Sec. 238. Proceedings to release attachments.—Proceedings to release attachments. Whenever any defendant has appeared in the action, such defendant may, upon reasonable notice to the plaintiff, apply to the district court, or to the judge thereof, for an order to discharge the attachment wholly or in part; and upon the execution of the undertaking mentioned in section 555, an order may be made releasing from the operation of the attachment, any or all of the property of such defendant attached; and all of the property so released and all of the proceeds of the sales thereof, must be delivered to such defendant upon the justification of the sureties on the undertaking, if required by the plaintiff. Such justification must take place within five days after the notice of the filing of such undertaking. Sec. 239. Requirements by court for release of attachment.—Requirements by court for release of attachment. Before making such order, the court or judge must require an undertaking on behalf of such defendant, by at least two sureties, to the effect that in case the plaintiff recovers judgment in the action against the defendant, by whom or in whose behalf such undertaking shall be given, such defendant will, on demand, redeliver the attached property so released to the proper officer, to be applied to the payment of any judgment in such action against said defendant, or in default thereof, that such defendant and sureties will, on demand, pay to the plaintiff the full value of the property released not exceeding the amount of such judgment against such defendant. The court or judge making such order may fix the sum for which the undertaking must be executed, and if necessary in fixing such sum to know the value of the property released, the same may be appraised by one or more disinterested persons, to be appointed for that purpose. The sureties may be required to justify before the court or judge and the property attached can not be released from the attachment without their justification if the same is required. Sec. 240. When a motion to discharge attachment may be made, and upon what grounds.—Motion to discharge attachment; grounds. The defendant may also at any time, either before or after the release of the attached property, or before any attachment shall have been actually levied, apply, on motion, upon reasonable notice to the plaintiff, to the court, or to the judge thereof, that the writ of attachment be discharged on the ground that the same was improperly or irregularly issued. Sec. 241. When motion made on affidavit, it may be opposed by affidavit.—Motion made on affidavit. If the motion be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence, in addition to those on which the attachment was made. Sec. 242. When writ must be discharged.—When writ must be discharged. If upon such application, it satisfactorily appears that the writ of attachment was improperly or irregularly issued it must be discharged; provided that such attachment shall not be discharged if at or before the hearing of such application, the writ of attachment, or the affidavit, or undertaking upon which such attachment was based shall be amended and made to conform to the provisions of this subchapter. Sec. 243. When writ to be returned.—When returned. The marshal must return the writ of attachment with the summons, if issued at the same time; otherwise, within twenty days after its receipt, with a certificate of his proceedings indorsed thereon or attached thereto; and whenever an order has been made discharging or releasing an attachment upon real property, a certified copy of such order may be filed in the office of the registrar of property.949 Sec. 244. Release of real property from attachment.— AnRelease of real property from attachment. attachment as to any real property may be released by a writing signed by the plaintiff, or his attorney, or the officer who levied the writ and acknowledged in the manner provided in chapter 22 of the*Post*, p. 1164. Civil Code; and upon the filing of such release, it is the duty of the registrar of property to note the same on the record of the copy of the writ on file in his office. Such attachment may also be released by an entry in the margin of the record thereof, in the registrar’s office, in the manner provided for the discharge of mortgages under section 1349 of the Civil Code. Sec. 245. Attachment of interest of defendant in estate of decedent.—Attachment of defendant’s interest in estate of decedent. The interest of a defendant in personal property belonging to the estate of a decedent, whether as heir, legatee, or devisee, may be attached by serving the personal representative of the decedent with a copy of the writ and a notice that said interest is attached. Such attachment shall not impair the powers of the representative over the property for the purposes of administration. A copy of said writ of attachment and of said notice shall also be filed in the office of the clerk of the court in which said estate is being administered and the personal representative shall report such attachment to the court when any petition for distribution is filed, and in the decree made upon such petition distribution shall be ordered to such heir, legatee, or devisee, but delivery of such property shall be ordered to the officer making the levy subject to the claim of such heir, legatee, or devisee, or any person claiming under him. The property shall not be delivered to the officer making the levy until the decree distributing such interest has become final. receiversReceivers. Sec. 246. Appointment of receivers.— A receiver may be appointedAppointment of. by the district court in an action pending therein, or by the judge of said court. 1. In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to subject any property or fund to his claim, or between partners or others jointly owning or interested in any property or fund, on the application of the plaintiff, or of any party whose right to or interest in the property or fund, or the proceeds thereof, is probable, and where it is shown that the property or fund is in danger of being lost, removed, or materially injured; 2. In an action by a mortgagee for the foreclosure of his mortgage and sale of the mortgaged property, where it appears that the mortgaged property is in danger of being lost, removed, or materially injured, or that the condition of the mortgage has not been performed, and that the property is probably insufficient to discharge the mortgage debt; 3. After judgment, to carry the judgment into effect; 4. After judgment, to dispose of the property according to the judgment, or to preserve it during the pendency of an appeal, or in proceedings in aid of execution, when an execution has been returned unsatisfied, or when the judgment debtor refuses to apply his property in satisfaction of the judgment; 5. In the cases when a corporation has been dissolved, or is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights; 6. In all other cases where receivers have heretofore been appointed by the usages of courts of equity.950 Sec. 247. Appointment of receivers upon dissolution of corporation.—Appointment, upon dissolution of corporation. Upon the dissolution of any corporation having its principal place of business in the Canal Zone, the district court, on application of any creditor of the corporation, or of any stockholder or member thereof, may appoint one or more persons to be receivers or trustees of the corporation, to take charge of the estate and effects thereof and to collect the debts and property due and belonging to the corporation, and to pay the outstanding debts thereof, and to divide the moneys and other property that shall remain over among the stockholders or members. Sec. 248. Receiver, restrictions on appointment; ex parte application, undertaking on.—Restrictions; ex parte application, undertaking on. No party, or attorney of a party, or person interested in an action, or related to the judge of the court by consanguinity or affinity within the third degree, can be appointed receiver therein without the written consent of the parties, filed with the clerk. If a receiver is appointed upon an ex parte application, the court, before making the order, must require from the applicant an undertaking, with sufficient sureties, in an amount to be fixed by the court, to the effect that the applicant will pay to the defendant all damages he may sustain by reason of the appointment of such receiver and the entry by him upon his duties, in case the applicant shall have procured such appointment wrongfully, maliciously, or without sufficient cause; and the court may, in its discretion, at any time after said appointment, require an additional undertaking. Sec. 249. Oath and undertaking of receiver.—Oath and undertaking of receiver. Before entering upon his duties, the receiver must be sworn to perform them faithfully, and with two or more sureties, approved by the court or judge, execute an undertaking to the Government of the Canal Zone in such sum as the court or judge may direct, to the effect that he will faithfully discharge the duties of receiver in the action and obey the orders of the court therein. Sec. 250. Powers of receivers.—Powers. The receiver has, under the control of the court, power to bring and defend actions in his own name, as receiver; to take and keep possession of the property, to receive rents, collect debts, to compound for and compromise the same, to make transfers, and generally to do such acts respecting the property as the court may authorize. Sec. 251. Investment of funds.—Investment of funds. Funds in the hands of a receiver may be invested upon interest, by order of the court; but no such order can be made, except upon the consent of all the parties to the action. Sec. 252. Notice of unclaimed funds in receiver’s hands; disposition of.—Notice of unclaimed funds in receiver’s hands; disposition of. A receiver having any funds in his hands belonging to a person whose whereabouts are unknown to him, shall, before receiving his discharge as such receiver, publish a notice, in one or more newspapers of general circulation in the Canal Zone, at least once a week for four consecutive weeks, setting forth the name of the owner of any unclaimed funds, the last known place of residence or post office address of such owner and the amount of such unclaimed funds. Any funds remaining in his hands unclaimed for thirty days after the date of the last publication of such notice, shall be reported to the court, and upon order of the court, all such funds must be paid to the collector of the Panama Canal accompanied with a copy of the order, which must set forth the facts required in the notice herein provided. Such funds shall be paid out by the collector to the owner thereof or his order in such manner and upon such terms as the court may direct.951 All costs and expenses connected with such advertising shall be paid out of the funds the whereabouts of whose owners are unknown. deposits in court; handling of funds by clerkDeposits in court; handling funds by clerk.Court order. Sec. 253. Deposit in court.— When it is admitted by the pleadings, or shown upon the examination of a party to the action, that he has in his possession, or under his control, any money or other thing capable of delivery, which, being the subject of litigation, is held by him as trustee for another party, or which belongs or is due to another party, the court may order the same, upon motion, to be deposited in court or delivered to such party, upon such conditions as may be just, subject to the further direction of the court. Sec. 254. Manner of enforcing the order.— Whenever, in theEnforcement. exercise of its authority, a court has ordered the deposit or delivery of money, or other thing, and the order is disobeyed, the court, beside punishing the disobedience, may make an order requiring the marshal to take the money, or thing, and deposit or deliver it in conformity with the direction of the court. Sec. 255. Money deposited deemed in registry of court.— EveryDeemed in registry of court. sum of money deposited with a clerk of said court, by or for the use of any party, upon a judgment of the court or in a pending action or proceeding by virtue of the law or by direction of the court, as soon as deposited with the clerk, shall be deemed to be in the registry of the court. Sec. 256. Clerk to deposit sums over $200 in depository; disbursement; record of receipt and disbursement.— The clerk shall depositSums over $200; disbursement; record of. in some depository designated by the judge of said court, in the name of the “District Court, Canal Zone,” every sum of money deposited in the registry of the court which exceeds $200, as soon as the same is received; and such money may thereafter be paid out only on a check, voucher, or order of the court, or the judge thereof? countersigned by a clerk of the court. The clerk in each division of the district court shall make a record showing the date of receipt, the amount received, from whom received, and the case in which any such money is deposited in the registry of the court; and the date, amount, and to whom the same was paid out. Sec. 257. Maintenance of general deposit account; interest; commission; deposit of funds of $200 or less.—Maintenance of general deposit account; interest; commission. The clerk shall maintain a general deposit account in a designated depository in which shall be deposited every cash fund exceeding $200 deposited in the registry of the court. Interest earned on such general account shall be retained by the clerk as his commission for receiving and caring therefor and shall be accounted for by him as fees of his office. No commission shall be charged by the clerk for handlingDeposit of funds of $200 or less. any fund of $200 or less. In any case, however, where any such fund is likely to remain inDeposit in bank. the registry of the court for six months or more, and where the parties so stipulate or the court so directs, such fund shall be deposited in a designated bank in a savings account at interest. The clerk’s commission for caring for such fund in such case shall be paid only out of interest earned thereon, to the amount of one-fourth of such interest. The remainder of such interest shall be deemed a part of such fund and shall be paid out on order or decree of the court according to the exigency of the case. Sec. 258. Judge to designate one or more depositories.— The judgeDesignation of depositories. of the district court shall designate one or more depositories in which money deposited in the registry of the court shall be deposited by the clerks.952 Sec. 259. “Clerk” defined to include assistant and acting clerks.—“Clerk” to include assistant and acting clerks. The word “clerk” as used in sections 255 to 258 shall include the clerk of the district court, the assistant clerks thereof, and any acting clerk when performing the duties of the clerk or assistant clerk when they or any of them are absent on account of illness or vacation, or are unable to act from any cause. Sec. 260. Disposition of unclaimed funds by clerk.—Disposition of unclaimed funds. All moneys, securities, or funds now in the hands or under the possession or control of the clerk of the district court where, for a period of four years or more, no order has been made, or no step or proceeding has been had or taken in the case, action, or proceeding in, by, or through which said moneys, securities, or funds may have been deposited or left with said clerk or his predecessors in office, and where no valid claim has been made upon or for any such moneys, securities, or funds for a period of four years or more, and where the owner or ownership of said moneys, securities, or funds is unknown or where such owner refuses to accept the same, shall be held by said clerk and his successor in office until one year after the enactment of this code, unless sooner demanded by and turned over to the legal owner or owners thereof. One year after the enactment of this code, the clerk of the district court having in his possession any such moneys, securities, or funds shall turn the same over to the collector of the Panama Canal to be held and disposed of as hereinafter provided. Whenever the clerk of the district court has in his hands for a period of two years or more any fund or moneys belonging to any person or persons, which funds or moneys he has been unable to disburse to such person or persons because of his inability to locate them, or because of their refusal to accept the same, the said clerk shall upon order of the court turn the same over to the collector of the Panama Canal to be held and disposed of as hereinafter provided. Any person claiming to be entitled to any amount so deposited with the collector may, within five years after such deposit, petition the court or judge for an order directing payment to the said claimant. A copy of such petition shall be served on the collector and thereafter no such amount shall be covered into the Treasury of the United States, as hereinafter directed, until so ordered by the court. If no one claims the amount, as herein provided, or if a claim be made and disallowed and the court so directs, such amount devolves to the United States and shall be covered into the Treasury by the collector as miscellaneous receipts. CHAPTER 11.— TRIAL AND JUDGMENT IN CIVIL ACTIONSTRIAL AND JUDGMENT IN CIVIL ACTIONS. judgment in generalGeneral. Sec. 261. Judgment defined.—“Judgment,” defined. A judgment is the final determination of the rights of the parties in an action or proceeding. Sec. 262. Judgment may be for or against one of the parties.—May be for or against one of the parties. Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side, as between themselves. Sec. 263. Judgment may be against one party, and action proceed as to others.—Against one party; action may proceed as to others. In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment is proper.953 Sec. 264. The relief to be awarded to the plaintiff.— The reliefRelief granted plaintiff. granted to the plaintiff, if there be no answer, can not exceed that which he shall have demanded in his complaint; but in any other case, the court may grant him any relief consistent with the case made by the complaint and embraced within the issue. Sec. 265. Dismissal of actions and entry of nonsuit.— An actionDismissal of actions; entry of nonsuit. may be dismissed, or a judgment of nonsuit entered, in the following cases: 1. By; the plaintiff, by written request to the clerk, filed with the papers in the case, at any time before the trial, upon payment of his costs; provided, a counterclaim has not been set up, or affirmative relief sought by the cross-complaint or answer of the defendant. If a provisional remedy has been allowed, the undertaking must thereupon be delivered by the clerk to the defendant, who may have his action thereon; 2. By either party, upon the written consent of the other; 3. By the court, when either party fails to appear on the trial, and the other party appears and asks for the dismissal; 4. By the court, when upon the trial and before the final submission of the case, the plaintiff abandons it; 5. By the court, upon motion of the defendant, when upon the trial the plaintiff fails to prove a sufficient case. But no dismissal mentioned in subdivisions 1 and 2 hereof shall be entered unless upon written consent of his attorney of record, or if said consent is not obtained, upon order of the court, after notice to the attorney. The dismissals mentioned in said subdivisions 1 and 2 hereof, when written consent of the attorney of record of the party requesting the dismissals are filed, may be made by entry in the clerk’s register. The dismissals mentioned in subdivisions three, four, and five of this section must be made by orders of the court entered upon the minutes thereof, and are effective for all purposes when so entered; but the clerk of the court must note such orders in his register of actions in the case. Sec. 266. Dismissal of action for failure to issue summons, when.—Failure to issue summons, when. No action heretofore or hereafter commenced shall be further prosecuted, and no further proceedings shall be had therein, and all actions heretofore or hereafter commenced must be dismissed by the court in which the same shall have been commenced, on its own motion, or on motion of any party interested therein, whether named in the complaint as a party or not, unless summons shall have issued within one year, and all such actions must be in like manner dismissed, unless the summons shall be served and return thereon made within three years after the commencement of said action. But all such actions may be prosecuted, if appearance has been made by the defendant or defendants, within said three years in the same manner as if summons had been issued and served; provided, that, except in actions to partition or to recover possession of, or to enforce a lien upon, or to determine conflicting claims to, real or personal property, no dismissal shall be had under this section as to any defendant because of the failure to serve summons on him during his absence from the zone, or while he has secreted himself within the zone to prevent the service of summons on him. Sec. 267. All other judgments are on the merits.— In all casesJudgments on merits. other than those mentioned in sections 265, 266, and 268, judgment must be rendered on the merits. Sec. 268. Dismissal of actions.— The court may in its discretionDismissal of actions. dismiss any action for want of prosecution on its own motion or on motion of the defendant and after due notice to the plaintiff, when-954ever plaintiff has failed for two years after answer filed to bring such action to trial. judgment upon failure to answerJudgment upon failure to answer. Sec. 269. If defendant fails. Judgment if defendant fails to answer.— Judgment may be had, if the defendant fails to answer the complaint, as follows: 1. In an action arising upon contract for the recovery of money or damages only, if the defendant has been personally served and no answer has been filed with the clerk of the court within the time specified in the summons, or such further time as may have been granted, the clerk, upon application of the plaintiff, must enter the default of the defendant, and immediately thereafter enter judgment for the amount demanded in the complaint, including the costs, against the defendant, or against one or more of several defendants, in the cases provided for in section 120. 2. In other actions, if the defendant has been personally served and no answer has been filed with the clerk of the court within the time specified in the summons, or such further time as may have been granted, the clerk must enter the default of the defendant; and thereafter the plaintiff may apply to the court for the relief demanded in the complaint. If the taking of an account, or the proof of any fact, is necessary to enable the court to give judgment, or to carry the judgment into effect, the court may take the account or hear the proof, or may, in its discretion, order a reference for that purpose. And where the action is for the recovery of damages, in whole or in part, the court may order the damages to be assessed by a jury; or if, to determine the amount of damages, the examination of a long account is involved, by a reference as above provided. 3. In all actions where the service of the summons was by publication, the plaintiff, upon the expiration of the time for answering, may, upon proof of the publication, and that no answer has been filed, apply for judgment; and the court must thereupon require proof to be made of the allegations of the complaint; and if the defendant is not a resident of the Zone, must require the plaintiff, or his agent, to be examined, on oath, respecting any payments that have been made to the plaintiff, or to anyone for his use, on account of any demand mentioned in the complaint, and may render judgment for the amount which he is entitled to recover; provided, that, in actions involving merely the possession of real property where the complaint is verified and shows by proper allegations that no party to the action claims title to the real property involved, either by accession, transfer, will, or succession but only the possession thereof, the court may render judgment upon proof of occupancy by plaintiff and ouster by defendant. issues; mode of trial and postponementsIssues; mode of trial and postponements. Sec. 270. Issue defined, and the different kinds.—“Issue,” defined. Issues arise upon the pleadings when a fact or a conclusion of law is maintained Kinds.by the one party and is controverted by the other. They are of two kinds: 1. Of law; and, 2. Of fact. Sec. 271. Issue of law, how raised.—How raised.Issue of law. An issue of law arises upon a demurrer to the complaint or answer, or to some part thereof. Sec. 272. Issue of fact, how raised.—Issue of fact. An issue of fact arises— 1. Upon a material allegation in the complaint controverted by the answer; and,955 2. Upon new matters in the answer, except an issue of law is joined thereon. Sec. 273. Issue of law, how tried.— An issue of law must be triedHow tried.Issue of law. by the court, unless it is referred upon consent. Sec. 274. Issues of fact, how tried.— Issues of fact shall be triedIssue of fact. by the court, except where a jury is demanded as provided in sections 279 and 280 or a reference is ordered as provided in this code. Sec. 275. Clerk must enter causes on the calendar, to remain until disposed of; when may be restored.—Causes to be calendared, etc. The clerk must enter causes upon the calendar of the court according to the date of issue. Causes once placed on the calendar must remain upon the calendar until finally disposed of; provided, that causes may be dropped from the calendar by consent of parties, and may be again restored upon notice. Sec. 276. Parties or court may bring issue to trial.— EitherParties or court may bring issue to trial. party may bring an issue to trial or to a hearing, and, in the absence of the adverse party, unless the court, for good cause, otherwise direct, may proceed with his case, and take a dismissal of the action, or a verdict, or judgment, as the case may require; provided, however, if the issue to be tried is an issue of fact, proof must first be made to the satisfaction of the court that the adverse party has had five days’ notice of such trial. The court or judge may on its own motion bring an issue to trial or to a hearing. Sec. 277. Motion to postpone a trial for absence of evidence or a material witness.—Motion to postpone; when can be made. A motion to postpone a trial on the ground of the absence of evidence can only be made upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to procure it. The court may require the moving party, where application is made on account of the absence of a material witness, to state upon affidavit the evidence which he expects to obtain; and if the adverse party thereupon admits that such evidence would be given, and that it be considered as actually given on the trial, or offered and overruled as improper, the trial must not be postponed. Sec. 278. In cases of adjournment a party may have the testimony of any witness taken.—Depositions of witnesses in cases of adjournment. The party obtaining a postponement of a trial in the district court must, if required by the adverse party, consent that the testimony of any witness of such adverse party, who is in attendance, be then taken by deposition before the judge or clerk of the court, or before such notary public as the court may indicate, which must accordingly be done; and the testimony so taken may be read on the trial, with the same effect, and subject to the same objections, as if the witnesses were produced. trial by juryTrial by jury. right to jury trial Sec. 279. Right to trial by jury.— A jury shall be had, on theRight to. demand of either party, in any civil case at law originating in the district court. (Acts Cong. Aug. 24, 1912, c. 390, § 8, 37 Stat. 565;Vol. 37, p. 565; Vol. 42, p. 1005; Vol. 44, p. 924. Sept. 21, 1922, c. 370, § 2, 42 Stat. 1005; Dec. 29, 1926, c. 19, § 1, 44 Stat. 924.) Sec. 280. Request for jury.— In the trial of any civil cause whereRequest for. a jury trial may be demanded, if either party shall desire a jury, request therefor must be made at the time such cause is assigned for trial.956 formation of juryFormation of. Sec. 281. Peremptory challenges, civil cases.—Peremptory challenges, civil cases. Either party may challenge the jurors, but where there are several parties on either side, they must join in the challenge before it can be made. The challenges are to individual jurors and are either peremptory or for cause. Each party is entitled to four peremptory challenges. If no peremptory challenges are taken until the panel is full, they must be taken by the parties alternately, commencing with the plaintiff, and each party shall be entitled to have the panel full before exercising any peremptory challenge. Sec. 282. Challenges of jurors for cause.—Challenges for cause. Challenges for cause may be taken on one or more of the following grounds: 1. A want of any of the qualifications prescribed to render a person competent as a juror. 2. Consanguinity or affinity within the fourth degree to any party, or to an officer of a corporation, which is a party; 3. Standing in the relation of guardian and ward, master and servant, employer and clerk, or principal and agent, or debtor and creditor, to either party, or to an officer of a corporation which is a party, or being a member of the family of either party; or a partner in business with either party; or surety on any bond or obligation for either party, or being the holder of bonds or shares of the capital stock of a corporation which is a party. 4. Having served as a juror in a civil action or been a witness on a previous trial between the same parties, for the same cause of action; or having served as a juror within one year previously in any civil action or proceeding in which either party was plaintiff or defendant. 5. Interest on the part of the juror in the event of the action, or in the main question involved in the action. 6. Having an unqualified opinion or belief as to the merits of the action founded upon knowledge of its material facts or of some of them. 7. The existence of a state of mind in the juror evincing enmity against or bias to either party. 8. That he is a party to an action pending in the court for which he is drawn and which action is set for trial before the panel of which he is a member. Sec. 283. Challenges, how tried.—How tried. Challenges for cause must be tried by the court. The juror challenged and any other person may be examined as a witness on the trial of the challenge. Sec. 284. Jury to be sworn.—Jury to be sworn. As soon as the jury is completed, an oath must be administered to the jurors, in substance, that they and each of them will well and truly try the matter in issue between ____, the plaintiff, and ____, defendant, and a true verdict render according to the evidence. conduct of trialConduct of trial. Sec. 285. Order of proceeding on trial.—Order of proceedings on trial. When the jury has been sworn, the trial must proceed in the following order, unless the judge, for special reasons, otherwise directs: 1. The plaintiff, after stating the issue and his case, must produce the evidence on his part; 2. The defendant may then open his defense, and offer his evidence in support thereof; 3. The parties may then respectively offer rebutting evidence only, unless the court, for good reason, in furtherance of justice, permit them to offer evidence upon their original case;957 4. When the evidence is concluded, unless the case is submitted to the jury on either side or on both sides without argument, the plaintiff must commence and may conclude the argument; 5. If several defendants, having separate defenses, appear by different counsel, the court must determine their relative order in the evidence and argument; 6. The court may then charge the jury. Sec. 286. Charge to the jury; court must furnish, in writing, upon request, the points of law contained therein.— In charging the jury the court may state to them all matters of law which it thinks necessary for their information in giving their verdict; and, if it state the testimony of the case, it must inform the jury that they are the exclusive judges of all questions of fact. The court must furnish to either party, at the time, upon request, a statement in writing of the points of law contained in the charge, or sign, at the time, a statement of such points prepared and submitted by the counsel of either party. Sec. 287. Special instructions.—Special instructions. Where either party asks special instructions to be given to the jury, the court must either give such instruction, as requested, or refuse to do so, or give the instruction with a modification, in such manner that it may distinctly appear what instructions were given in whole or in part. Sec. 288. View by jury of the premises.— When, in the opinionView of premises by jury. of the court, it is proper for the jury to have a view of the property which is the subject of litigation, or of the place in which any material fact occurred, it may order them to be conducted, in a body, under the charge of an officer, to the place, which shall be shown to them by some person appointed by the court for that purpose. While the jury are thus absent, no person, other than the person so appointed, shall speak to them on any subject connected with the trial. Sec. 289. Admonition when jury permitted to separate.— If theAdmonition on separation of jury. jury are permitted to separate, either during the trial or after the case is submitted to them, they shall be admonished by the court that it is their duty not to converse with, or suffer themselves to be addressed by any other person, on any subject of the trial, and that it is their duty not to form or express an opinion thereon until the case is finally submitted to them. Sec. 290. Jury may take with them certain papers.— UponPapers jury may take upon retiring. retiring for deliberation the jury may take with them all papers which have been received as evidence in the cause, except depositions or copies of such papers as ought not, in the opinion of the court, to be taken from the person having them in possession; and they may also take with them notes of the testimony or other proceedings on the trial, taken by themselves or any of them, but none taken by any other person. Sec. 291. Deliberation of jury, how conducted.— When the caseDeliberation of jury. is finally submitted to the jury, they may decide in court or retire for deliberation; if they retire, they must be kept together in some convenient place, under charge of an officer, until at least three-fourths of them agree upon a verdict or are discharged by the court. Unless by order of the court, the officer having them under his charge must not suffer any communication to be made to them, or make any himself, except to ask them if they or three-fourths of them are agreed upon a verdict, and he must not, before their verdict is rendered, communicate to any person the state of their deliberations or the verdict agreed upon. Sec. 292. May come into court for further instructions.— AfterReturn to court for further instructions. the jury have retired for deliberation, if there be a disagreement 958between them as to any part of the testimony, or if they desire to be informed of any point of law arising in the cause, they may require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the parties or counsel. Sec. 293. Proceedings if juror becomes sick.—Proceedings if juror becomes sick. If, after the impaneling of the jury, and before verdict, a juror becomes sick, so as to be unable to perform his duty, the court may order him to be discharged. In that case the trial may proceed with the other jurors with the consent of the parties, or another juror may be sworn and the trial begin anew or the jury may be discharged and a new jury then or afterwards impaneled. Sec. 294. When prevented from giving verdict, the cause may be again tried.—When verdict prevented; cause again tried. In all cases where the jury are discharged, or prevented from giving a verdict, by reason of accident or other cause, during the progress of the trial, or after the cause is submitted to them, the action may be again tried immediately, or at a future time, as the court may direct. Sec. 295. While jury are absent, court may adjourn from time to time; sealed verdict.—Adjournment during absence of jury; sealed verdict. While the jury are absent the court may adjourn from time to time, in respect to other business; but it is nevertheless open for every purpose connected with the cause submitted to the jury, until a verdict is rendered or the jury discharged. The court may direct the jury to bring in a sealed verdict, at the opening of the court, in case of an agreement during a recess or adjournment for the day. Sec. 296. Verdict, how declared; form of; polling the jury.—Verdict, how declared; form. When the jury, or three-fourths of them, have agreed upon a verdict, they must be conducted into court, their names called by the clerk, and the verdict rendered by their foreman; the verdict must be in writing, signed by the foreman, and must be read by the clerk to the Polling jury.jury, and the inquiry made whether it is their verdict. Either party may require the jury to be polled, which is done by the court or clerk asking each juror if it is his verdict; if upon such inquiry or polling, more than one-fourth of the jurors disagree thereto, the jury must be sent out again, but if no such disagreement be expressed, the verdict is complete and the jury discharged from the case. Sec. 297. Proceedings when verdict is informal.—Informal verdict; proceedings. When the verdict is announced, if it is informal or insufficient, in not covering the issue submitted, it may be corrected by the jury under the advice of the court, or the jury may be again sent out. the verdictThe verdict. Sec. 298. General and special verdicts defined.—“General” and “special,” defined. The verdict of a jury is either general or special. A general verdict is that by which they pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant; a special verdict is that by which the jury find the facts only, leaving the judgment to the court. The special verdict must present the conclusions of fact as established by the evidence, and not the evidence to prove them; and those conclusions of fact must be so presented as that nothing shall remain to the court but to draw from them conclusions of law. Sec. 299. When a general or special verdict may be rendered.—When may be rendered. In an action for the recovery of money only, or specific real property, the jury, in their discretion, may render a general or special verdict. In all other cases the court may direct the jury to find a special verdict in writing upon all, or any of the issues, and in all cases may instruct them, if they render a general verdict, to find upon particu-959lar questions of fact, to be stated in writing, and may direct a written finding thereon. The special verdict or finding must be filed with the clerk and entered upon the minutes. Where a special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court must give judgment accordingly. Sec. 300. Verdict in actions for recovery of money or on establishing counterclaim.—Actions for recovery of money or on establishing counterclaim. When a verdict is found for the plaintiff in an action for the recovery of money, or for the defendant, when a counterclaim for the recovery of money is established, exceeding the amount of the plaintiff’s claim as established, the jury must also find the amount of the recovery. Sec. 301. Verdict in actions for the recovery of specific personal property.—Actions for recovery of specific personal property. In an action for the recovery of specific personal property, if the property has not been delivered to the plaintiff, or the defendant, by his answer, claim a return thereof, the jury, if their verdict be in favor of the plaintiff, or if being in favor of defendant, they also find that he is entitled to a return thereof, must find the value of the property, and, if so instructed, the value of specific portions thereof, and may at the same time assess the damages, if any are claimed in the complaint or answer, which the prevailing party has sustained by reason of the taking or detention of such property. Sec. 302. Entry of verdict.— Upon receiving a verdict, an entryEntry of verdict. must be made by the clerk in the minutes of the court, specifying the time of trial, the names of the jurors and witnesses, and setting out the verdict at length; and where special verdict is found, either the judgment rendered thereon, or if the case be reserved for argument or further consideration, the order thus reserving it. Sec. 303. Judgment notwithstanding verdict.— When a motionJudgment notwithstanding verdict. for a directed verdict, which should have been granted, has been denied and a verdict rendered against the moving party, the court, at any time before the entry of judgment, either of its own motion or on motion of the aggrieved party, shall render judgment in favor of the aggrieved party notwithstanding the verdict. A motion for judgment notwithstanding such verdict may also be made in the alternative form, asking therefor and reserving, if that be denied, the right to apply for a new trial. If the motion for a directed verdict or for judgment notwithstanding the verdict be denied, the trial court on motion for new trial may order judgment to be so entered when it appears from the whole evidence that a verdict should have been so directed at the trial. trial by courtTrial by court. Sec. 304. Upon trial by court, decision to be in writing and filed within thirty days.—Decision; form; filing. Upon the trial of a question of fact by the court, its decision must be given in writing and filed with the clerk within thirty days after the cause is submitted for decision. Sec. 305. Facts found and conclusions of law must be separately stated; judgment on.—Statement of facts found and conclusions of law; judgment on. In giving the decision, the facts found and the conclusions of law must be separately stated. Judgment upon the decision must be entered accordingly. Sec. 306. Waiving findings of fact.— Findings of fact may beWaiving findings of fact. waived by several parties to an issue of fact: 1. By failing to appear at the trial; 2. By consent in writing filed with the clerk; 3. By oral consent in open court, entered in the minutes. In all cases where the court directs a party to prepare findings, a copy of said proposed findings shall be served upon all the parties 960to the action at least five days before findings shall be signed by the court, and the court shall not sign any findings therein prior to the expiration of such five days. Sec. 307. Proceedings after determination of issue of law.—Proceedings after determining issue of law On a judgment for the plaintiff upon an issue of law, he may proceed in the manner prescribed by the first two subdivisions of section 269, upon the failure of the defendant to answer. If judgment be for the defendant upon an issue of law, and the taking of an account, or the proof of any fact, be necessary to enable the court to complete the judgment, a reference may be ordered, as in that section provided. references and trials by refereesReferences and trials by referees. Sec. 308. Reference ordered upon agreement of parties, in what cases.—Reference ordered upon agreement of parties, in what cases. A reference may be ordered upon the agreement of the parties filed with the clerk, or entered in the minutes: 1. To try any or all of the issues in an action or proceeding, whether of fact or of law, and to report a finding and judgment thereon; 2. To ascertain a fact necessary to enable the court to determine an action or proceeding. Sec. 309. Reference ordered on motion, in what cases.—Ordered on motion in what cases. When the parties do not consent, the court may, upon the application of either, or of its own motion, direct a reference in the following cases: 1. When the trial of an issue of fact requires the examination of a long account on either side; in which case the referees may be directed to hear and decide the whole issue, or report upon any specific question of fact involved therein; 2. When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect; 3. When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of the action; 4. When it is necessary for the information of the court in a special proceeding. Sec. 310. A party may object; grounds of objection.—Objection to appointment of referee.When may offer; grounds of. A party may object to the appointment of any person as referee, on one or more of the following grounds: 1. A want of any of the qualifications prescribed to render a person competent as a juror; 2. Consanguinity or affinity, within the third degree, to either party, or to an officer of a corporation which is a party, or to the judge of the court in which the appointment shall be made; 3. Standing in the relation of guardian and ward, master and servant, employer and clerk, or principal and agent, to either party; or being a member of the family of either party; or a partner in business with either party; or security on any bond or obligation for either party; 4. Having served as a juror or been a witness on any trial between the same parties for the same cause of action; 5. Interest on the part of such person in the event of the action, or in the main question involved in the action; 6. Having formed or expressed an unqualified opinion or belief as to the merits of the action; 7. The existence of a state of mind in such person evincing enmity against or bias to either party. Sec. 311. Objections, how disposed of.—How disposed of. The objections taken to the appointment of any person as referee must be heard and dis-961posed of by the court. Affidavits may be read and witnesses examined as to such objections. Sec. 312. Referees to report within twenty days.— The refereesReport of referees. or commissioner must report their findings in writing to the court within twenty days after the testimony is closed and the facts found and conclusions of law must be separately stated therein. Sec. 313. Effect of referee’s finding.— The finding of the refereeEffect of referee’s finding. or commissioner upon the whole issue must stand as the finding of the court, and upon filing of the finding with the clerk of the court, judgment may be entered thereon in the same manner as if the action had been tried by the court. Sec. 314. How excepted to, and so forth.— The findings of theHow excepted to, etc. referee or commissioner may be excepted to and reviewed in like manner as if made by the court. When the reference is to report the facts, the finding reported has the effect of a special verdict. provisions relating to trials in general exceptionsProvisions relating to trials in general. Sec. 315. “Exception” defined; when taken.— An exception is“Exception” defined; when taken. an objection upon a matter of law to a decision made, either before or after judgment, by a court, tribunal, judge, or other judicial officer, in an action or proceeding. The exception must be taken at the time the decision is made, except as provided in section 316. Sec. 316. Verdict or order in absence of party, deemed excepted to.—Verdict or order in absence of party, deemed excepted to. The verdict of the jury, the final decision in an action or proceeding, an interlocutory order or decision, finally determining the rights of the parties, or some of them, an order or decision from which an appeal may be taken, an order sustaining or overruling a demurrer, allowing or refusing to allow an amendment to a pleading, striking out a pleading or a portion thereof, refusing a continuance, an order made upon ex parte application, giving an instruction, although no objection to such instruction was made, refusing to give an instruction, modifying an instruction requested, an order or decision made in the absence of the party or an order granting or denying a nonsuit or a motion to strike out evidence or testimony and a ruling sustaining or overruling an objection to evidence, are deemed to have been excepted to. Sec. 317. Exception, form of.— No particular form of exceptionForm of exception. is required, but when the exception is to the verdict or decision, upon the ground of the insufficiency of the evidence to justify it, the objection must specify the particulars in which such evidence is alleged to be insufficient. The objection must be stated, with so much of the evidence or other matter as is necessary to explain it, and no more. Only the substance of the reporter’s notes of the evidence shall be stated. Documents on file in the action or proceeding may be copied, or the substance thereof stated, or a reference thereto sufficient to identify them may be made. Sec. 318. Bill of exceptions, when to be presented, etc.— ABill of exceptions, when to be presented, etc. bill containing the exception to any decision may be presented to the court or judge, for settlement at any time after the decision is made, but the same must be presented within ten days after written notice of making such decision, and after having been settled must be signed by the judge and filed with the clerk. When the decision excepted to is made by a tribunal other than a court, or by a judicial officer, the bill of exceptions must be presented to and settled and signed by such tribunal or officer. Sec. 319. Bill of exceptions, preparation and settlement; time of filing.—Preparation and settlement; time of filing. When a party desires to have exceptions taken at a 962trial settled in a bill of exceptions, he may, at any time thereafter, and within ten days after the entry of judgment, if the action was tried with a jury, or after receiving notice of the entry of judgment, if the action was tried without a jury, or if proceedings on motion for a new trial be pending, within ten days after notice of decision denying said motion, or other determination thereof, or such further time as the court in which the action is pending, or the judge thereof, may allow, prepare the draft of a bill, and serve the same, or a copy thereof, upon the adverse party. Contents of draft.Contents of draft.—Such draft must contain all the exceptions and proceedings taken upon which the party relies, and may contain all matters reviewable on the same appeal whether occurring at the trial or on motion for a new trial. It may also contain a statement of any matters occurring upon the trial, in the presence of the court, showing any of the matters mentioned in subdivisions *Post*, p. 963.one and two of section 324. Adverse party may propose amendments.Adverse party may propose amendments.—Within ten days after such service, the adverse party may propose amendments thereto, and serve the same or a copy thereof, upon the other party. Delivery to judge.Delivery to the judge.—The proposed bill and amendments must, within ten days thereafter be presented by the party seeking the settlement of the bill, to the judge who tried or heard the case, upon five days’ notice to the adverse party, or be delivered to the clerk of the court for the judge. When received by the clerk he must immediately deliver them to the judge, if he is in the Canal Zone; if he is absent from the Zone, and either party desires the paper to be forwarded to the judge, the clerk must, upon notice in writing of such party, immediately forward them by mail, or other safe channel; if not thus forwarded the clerk must deliver them to the judge immediately after his return to the Zone. Judge to designate time of settling.Judge to designate time of settling.—When received from the clerk, the judge must designate the time at which he will settle the bill, and the clerk must immediately notify the parties of such designation. At the time designated the judge must settle the bill. The bill must thereupon be engrossed and presented to the judge to be certified, by the party presenting it, within ten days. Action tried before referee.Action tried before referee.—If the action was tried before a referee, the proposed bill, with the amendments, if any, must be presented to such referee for settlement within ten days after service of the amendments, upon notice of five days to the adverse party, and thereupon the referee must settle the bill. If no amendments are served or if served are allowed, the proposed bill may be presented, with the amendments, if any, to the judge or referee, for settlement without notice to the adverse party. Judge to strike out useless matter.Judge to strike out useless matter.—It is the duty of the judge or referee, in settling the bill, to strike out of it all redundant and useless matter, so that the exceptions and proceedings may be presented as briefly as possible. When settled, the bill must be signed by the judge or referee, with his certificate to the effect that the same is allowed, and must then be filed with the clerk. Service when default entered.Not to be served on party when default entered.—No bill of exceptions, notice of appeal, or notice or paper, other than amendments to the pleadings or an amended pleading, need be served upon any party whose default has been duly entered, or who has not appeared in the action or proceeding. Sec. 320. Exceptions after judgment.—Exceptions after judgment. Exceptions to any decision made after judgment may be presented to the judge at the time of such decision, and be settled or noted, as provided in section 318, or a bill thereof may be presented and settled afterward, as pro-963vided in section 319, and within like periods after written notice of entry of the order, upon appeal from which such decision is reviewable. Sec. 321. Proceedings if judge refuse to allow bill of exceptions.—Proceedings if bill of exceptions refused. If the judge in any case refuses to allow a bill of exceptions in accordance with the facts, the party desiring the bill settled may apply by petition to the United States Circuit Court of Appeals for the Fifth Circuit to prove the same; the application may be made in the mode and manner, and under such regulations as that court may prescribe; and the bill, when proven, must be certified by the court as correct, and filed with the clerk of the court in which the action was tried, and when so filed it has the same force and effect as if settled by the judge who tried the cause. Sec. 322. Settlement of bill of exceptions.—Settlement of bill of exceptions. When the decision excepted to was made by any judicial officer, other than a judge, the bill of exceptions shall be presented to such judicial officer, and be settled and signed by him in the same manner as it is required to be presented to, settled, and signed by a court or judge. A judge or judicial officer may settle and sign a bill of exceptions after, as well as before, he ceases to be such judge or judicial officer. If such judge or judicial officer, before the bill of exceptions is settled, dies, is removed from office, becomes disqualified, is absent from the Canal Zone, or refuses to settle the bill of exceptions, or if no mode is provided by law for the settlement of the same, it shall be settled and certified in such manner as the circuit court of appeals may, by its order or rules, direct. new trialsNew trials. Sec. 323. New trial defined.— A new trial is a reexamination ofDefined. an issue of fact in the same court after a trial and decision by a jury, court, or referee. Sec. 324. When new trial may be granted.— The former verdictWhen granted. or other decision may be vacated and a new trial granted, on the application of the party aggrieved, for any of the following causes, materially affecting the susbtantial rights of such party: 1. Irregularity in the proceedings of the court, jury, or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial; 2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors; 3. Accident or surprise, which ordinary prudence could not have guarded against; 4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial; 5. Excessive damages, appearing to have been given under the influence of passion or prejudice; 6. Insufficiency of the evidence to justify the verdict or other decision, or that it is against law; 7. Error in law, occurring at the trial and excepted to by the party making the application. When a new trial is granted upon the ground of the insufficiency of the evidence to sustain the verdict, the order shall so specify; otherwise, on appeal from such order, it will be presumed that the order was not based upon that ground.964 Sec. 325. Manner of making application for new trial.—Application for. When the application is made for a cause mentioned in the first, second, third, and fourth subdivisions of section 324, it must be made upon affidavits; otherwise it must be made on the minutes of the court. Sec. 326. Notice of motion, upon whom to be served, and what to contain.—Notice of motion, upon whom served; contents. The party intending to move for a new trial must, either before the entry of judgment or within ten days after receiving notice of the entry of the judgment, or within ten days after verdict, if the trial was by jury, file with the clerk and serve upon the adverse party a notice of his intention to move for a new trial, designating the grounds upon which the motion will be made and whether the same will be made upon affidavits or the minutes of the court or both. The time above specified shall not be extended by order or stipulation. If the motion is to be made upon affidavits, the moving party must, within ten days after serving the notice, or such further time as the court in which the action is pending, or the judge thereof, may allow (but not to exceed twenty days’ additional time) file such affidavits with the clerk and serve a copy thereof upon the adverse party, who shall have ten days thereafter, or such further time as the court may allow (not exceeding twenty days’ additional time) to file counter-affidavits and serve a copy thereof upon the moving party. Sec. 327. Time of hearing motion; reference to pleadings, orders and evidence at hearing.—Time of hearing motion; reference to pleadings, orders and evidence at hearing. The motion for a new trial must be heard at the earliest practicable time after the filing of affidavits and counter-affidavits, in case the motion is made on affidavits, in other cases after the filing of the notice. On such hearing reference may be had in all cases to the pleadings and orders of the court on file, and when the motion is made on the minutes, reference may also be had to any depositions and documentary evidence offered at the trial and to the report of the proceedings on the trial taken by the reporter, or to any certified transcript, of such report, or if there be no such report or certified transcript, to such proceedings occurring at the trial as are within the recollection of the judge; when the proceedings at the trial have been reported, but the reporter’s notes have not been transcribed, the reporter must, upon request of the court, or either party, attend the hearing of the motion, and shall read his notes, or such parts thereof as the court, or either party, may require. New trial has precedence.New trial hearing has precedence.—The hearing and disposition of the motion for a new trial shall have precedence over all other matters except criminal cases, probate matters, and cases actually on trial, and it shall be the duty of the court to determine the same at the earliest possible moment. To be passed on within two months.Motion to be passed on within two months.—The power of the court to pass on motion for a new trial shall expire within two months after the verdict of the jury or service on the moving party of notice of the entry of the judgment. If such motion is not determined within said two months, the effect shall be a denial of the motion without further order of the court. Sec. 328. Vacation of judgment.—Vacation of judgment. A judgment or decree of the district court, when based upon findings of fact made by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of such party and entitling him to a different judgment: 1. Incorrect or erroneous conclusions of law not consistent with or not supported by the findings of fact; and in such case when 965the judgment is set aside, the conclusions of law shall be amended and corrected. 2. A judgment or decree not consistent with or not supported by the special verdict. Sec. 329. Notice of intention to move to vacate judgment; time for making motion.—Notice of intention to move to vacate judgment. The party intending to make the motion mentioned in section 328 must, within ten days after notice of the entry of judgment, serve upon the adverse party and file with the clerk of the court a notice of his intention, designating the grounds upon which, and the time at which the motion will be made, and specifying the particulars in which the conclusions of law are not consistent with the finding of facts, or in which the judgment or decree is not consistent with the special verdict. The time designated for the making of the motion must not be more than sixty days from the time of the service of the notice. manner of giving and entering judgmentManner of giving and entering judgment. Sec. 330. Judgment to be entered in twenty-four hours, and so forth.—Entry within twenty-four hours, etc. When trial by jury has been had, judgment must be entered by the clerk, in conformity to the verdict, within twenty-four hours after the rendition of the verdict, unless the court order the case to be reserved for argument or further consideration, or grant a stay of proceedings. If the trial has been had by the court, judgment must be entered by the clerk, in conformity to the decision of the court, immediately upon the filing of such decision. In no case is a judgment effectual for any purpose until so entered. Sec. 331. Case may be brought before the court for argument.—Argument before court. When the ease is reserved for argument or further consideration, as mentioned in section 330, it may be brought by either party before the court for argument. Sec. 332. When counter claim established exceeds plaintiff’s demand.—When established counterclaim exceeds plaintiff’s demand. If a counterclaim, established at the trial, exceed the plaintiff’s demand, judgment for the defendant must be given for the excess; or if it appear that the defendant is entitled to any other affirmative relief, judgment must be given accordingly. Sec. 333. In replevin, judgment to be in the alternative, and with damages; gold coin or currency judgment.—In replevin, judgment to be in the alternative, and with damages; gold coin or currency judgment. In an action to recover the possession of personal property, judgment for the plaintiff may be for the possession or the value thereof, in case a delivery can not be had, and damages for the detention. If the property has been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property or the value thereof, in case a return can not be had, and damages for taking and withholding the same. In an action on a contract or obligation in writing, for the direct payment of money, made payable in a specified kind of money or currency, judgment for the plaintiff, whether it be by default or after verdict, may follow the contract or obligation, and be made payable in the kind of money or currency specified therein; and in all actions for the recovery of money, if the plaintiff allege in his complaint that the same was understood and agreed by the respective parties to be payable in a specified kind of money or currency, and this fact is admitted by the default of the defendant or established by evidence, the judgment for the plaintiff must be made payable in the kind of money or currency so alleged in the complaint; and in an action against any person for the recovery of money received by such person in a fiduciary capacity, or to the use of another, judg-966ment for the plaintiff must be made payable in the kind of money or currency so received by such person. Sec. 334. Clerk to enter abstract of judgment.—Clerk to enter abstract of judgment. The clerk must enter an abstract of the judgment in a column set aside for that purpose on the civil docket. Sec. 335. If a party die after verdict, judgment may be entered.—If a party die after verdict, judgment may be entered. If a party die after a verdict or decision upon any issue of fact, and before judgment, the court may nevertheless render judgment thereon. Such judgment is payable in the course of administration on his estate. Sec. 336. Judgment roll, what constitutes.—What constitutes judgment roll. Immediately after entering the judgment, the clerk must attach together and file the following papers, which constitute the judgment roll: 1. In case the complaint is not answered by any defendant, the summons, with the affidavit or proof of service; the complaint with a memorandum indorsed thereon that the default of the defendant in not answering was entered, and a copy of the judgment; and in case the service so made is by publication, the affidavit for publication of summons, and the order directing the publication of summons. 2. In all other cases, the pleadings, all orders striking out any pleading in whole or in part, a copy of the verdict of the jury, or finding of the court or referee, and a copy of any order made on demurrer, or relating to a change of parties, and a copy of the judgment; if there are two or more defendants in the action, and any one of them has allowed judgment to pass against him by default, the summons, with proof of its service, on such defendant; and if the service on such defaulting defendant be by publication, then the affidavit for publication, and the order directing the publication of the summons. Sec. 337. Clerk to enter judgment.—Clerk to enter judgment. Immediately after filing the judgment roll, the clerk must make the proper entries of the judgment under appropriate heads, in the civil docket kept by him. Sec. 338. Docket to be open for inspection without charge.—Inspection of docket. The docket kept by the clerk is open at all times, during office hours, for the inspection of the public, without charge. The clerk must arrange the several dockets kept by him in such a manner as to facilitate their inspection. Sec. 339. Satisfaction of a judgment, how made.—Satisfaction of judgment, how made. Satisfaction of a judgment may be entered in the clerk’s docket upon an execution returned satisfied, or upon an acknowledgment of satisfaction filed with the clerk, made in the manner prescribed in chapter 22 of the Civil Code, by the judgment creditor, or by his indorsement on the face, or on the margin of the record of the judgment, or by the attorney, unless a revocation of his authority is filed. Whenever a judgment is satisfied in fact, otherwise than upon an execution, the party or attorney must give such acknowledgment, or make such indorsement, and, upon motion, the court may compel it, or may order the entry of satisfaction to be made without it. Sec. 340. Undertaking in actions to set aside transfer of property.—Undertaking in actions to set aside transfer of property. Where an action is commenced to set aside a transfer or conveyance of property on the grounds that such transfer or conveyance was made to hinder, delay, or defraud a creditor or creditors, the transferee or grantee to whom it is alleged the property was transferred or conveyed to hinder, delay, or defraud creditors or the successors or assigns of such transferee or grantee, may give an undertaking as herein provided, and when such undertaking is given as herein provided, the transferee or grantee to whom it is alleged the property was transferred or conveyed to hinder, delay, or defraud 967creditors, or the successors and assigns of such transferee or grantee, may sell, encumber, transfer, convey, mortgage, pledge, or otherwise dispose of the property, or any part thereof, which is alleged to have been transferred or conveyed to hinder, delay, or defraud creditors, so that the purchaser, encumbrancer, transferee, mortgagee, grantee, or pledgee of such property, will take, own, hold, and possess such property unaffected by such action and suit, or the judgment which may be rendered therein. Sec. 341. Conditions of undertaking.— Such undertaking withConditions of. two sureties shall be executed by the transferee or grantee to whom it is alleged the property was transferred or conveyed to hinder, delay, or defraud creditors, or the successor or assign of such transferee or grantee, in double the estimated value of the property so alleged to have been transferred or conveyed; provided, in no case need such undertaking be for a greater sum than double the amount of the debt or liability alleged to be due and owing to the plaintiff in such action, commenced to set aside said transfer and conveyance; and where such estimated value of the property alleged so to have been conveyed is less than the sum alleged to be due and owing to the plaintiff in the action, such estimated value shall be stated in the undertaking, and said undertaking shall be conditioned that, if it be adjudged in said action that the transfer or conveyance was made to hinder, delay, or defraud a creditor or creditors, then that the transferee or grantee or the said successor or assigns of such transferee or grantee giving such undertaking, will pay to the plaintiff in said action a sum equal to the value, as the same is estimated in said undertaking, of said property alleged to have been transferred or conveyed to hinder, delay, or defraud creditors, not exceeding the sum alleged to be due and owing to the plaintiff in the action. Sec. 342. Filing and serving undertaking.— Said undertakingFiling and serving. shall be filed in the action in which said execution issued and a copy thereof served upon the plaintiff or his attorney in said action. Sec. 343. Objections to sureties.— Within ten days after serviceObjections to sureties. of the copy of undertaking the plaintiff may object to such undertaking on the ground of inability of the sureties, or either of them, to pay the sum for which they become bound in said undertaking, and upon the ground that the estimated value of the property therein is less than the market value of such property. Such objection to the undertaking shall be made in writing, specifying the ground or grounds of objection, and if the objection is made to the undertaking that the estimated value therein is less than the market value of the property, such objection shall specify the plaintiff’s estimate of the market value of the property. Such written objection shall be served upon the said transferee or grantee, or the successor or assigns of such transferee or grantee giving such undertaking. Sec. 344. Justification of sureties; approval and disapproval of undertaking.—Justification of sureties; approval and disapproval of undertaking. When the sureties or either of them, are objected to, the surety or sureties so objected to shall justify before the court in which the action is commenced, upon ten days’ notice of the time when they will so justify being given to the plaintiff, or plaintiff’s attorney. Upon the hearing and examination into the sufficiency of a surety, witnesses may be required to attend and evidence may be procured and introduced in the same manner as in trial of civil cases. Upon such hearing and examination the court shall make its order, in writing, approving or disapproving the sufficiency of the sureties or surety on such undertaking. In case the court disapproves of the surety or sureties on any undertaking, a new undertaking may be filed and served, and to any undertaking given968under the provisions of this act the same objection to the sureties may be made and the same proceedings had as in case of the first undertaking filed and served. Sec. 345. Objection because estimated value in undertaking less than market value; new undertaking.—Objection because estimated value in undertaking less than market value; new undertaking. When objection is made to the undertaking upon the ground that the estimated value of the property, as stated in the undertaking, is less than the market value of the property, the transferee or grantee, or the successor or assigns of such transferee or grantee giving the undertaking may accept the estimated value stated by the plaintiff in said objection, and a new undertaking may at once be filed, with the plaintiff’s estimate stated therein as the estimated value, and no objection shall thereafter be made upon that ground; if the plaintiff’s estimate of the market value is not accepted, the transferee or grantee, or the successor or assigns of the grantee or transferee giving such undertaking, upon ten days’ notice to the plaintiff, shall move the court in which the action is pending to estimate the market value of the property, and upon the hearing of such motion, witnesses may be required to attend and testify, and evidence may be produced in the same manner as in the trial of civil actions. Upon the hearing of the motion the court shall estimate the market value of the property, and if the estimated value of the property as made by the court exceeds the estimated value as stated in the undertaking, a new undertaking shall be filed and served with the market value determined by the stated value therein as the estimated value of the property. Sec. 346. Justification of sureties.Justification of sureties.*Post*, p. 1002. The sureties shall justify upon the undertaking as required by section 533. Sec. 347. When undertaking becomes effective.—When undertaking effective. The undertaking shall become effective for the purpose stated in section 340, ten days after service of copy thereof on the plaintiff, unless objection to such undertaking is made as provided in sections 343 or 345, and in case objection is so made to the undertaking filed and served, the same shall become effective for such purpose when an order is made by such court approving the sureties, when the surety or sureties are objected to, or affirming the estimate of the value of property when objection is made thereto, or in case any objection to the undertaking is sustained by the court when a new undertaking is filed and served as required by sections 344 or 345, to which no objection is made, or if made is not sustained by the court. Sec. 348. Judgment against sureties.—Judgment against sureties. If judgment be rendered in said action that the alleged transfer or conveyance was made to hinder, delay, or defraud creditors, then judgment shall be rendered in such action without further proceeding in favor of plaintiff and against the principal and sureties on said undertaking for the sum for which said undertaking was executed according to the conditions thereof. CHAPTER 12.— EXECUTION OF JUDGMENT IN CIVIL ACTIONS execution Sec. 349. Within what time execution may issue.—Time execution may issue. The party in whose favor judgment is given may, at any time within five years after the entry thereof, have a writ of execution issued for its enforcement. If, after the entry of the judgment, the issuing of execution thereon is stayed or enjoined by any judgment or order of court, or by operation of law, the time during which it is so 969stayed or enjoined must be excluded from the computation of the five years within which execution may issue. Sec. 350. Stay of execution.— The court or the judge thereof shallStay of. not have the power, without the consent of the adverse party, to stay, for a longer period than thirty days, the execution of any judgment or order the execution whereof would be stayed on appeal only by the execution of a stay bond. Sec. 351. Who may issue the execution, its form, to whom directed, and what it shall require.— The Writ of execution must be issued in the name of the government of the Canal Zone, sealed with the seal of the court, and subscribed by the clerk, and be directed to the marshal, and it must intelligibly refer to the judgment, stating the court, the division where the judgment-roll is filed, and if it be for money, the amount thereof, and the amount actually due thereon, and if made payable in a specified kind of money or currency, as provided in section 333, the execution must also state the kind of*Ante*, p. 965. money or currency in which the judgment is payable, and must require the marshal substantially as follows: 1. If it be against the property of the judgment debtor, it must require the marshal to satisfy the judgment, with interest, out of the property of such debtor. 2. If it be against property in the hands of the personal representatives, heirs, devisees, legatees, tenants, or trustees, it must require the marshal to satisfy the judgment, with interest, out of such property. 3. If it be against the person of the judgment debtor, it must require the marshal to arrest such debtor and commit him to jail until he pay the judgment, with interest, or be discharged according to law. 4. If it be issued on a judgment made payable in a specified kind of money or currency, as provided in section 333, it must also require the marshal to. satisfy the same in the kind of money or currency in which the judgment is made payable, and the marshal must refuse payment in any other kind of money or currency; and in case of levy and sale of the property of the judgment debtor, he must refuse payment from any purchaser at such sale in any other kind of money or currency than that specified in the execution. The marshal collecting money or currency in the manner required by this subchapter, must pay to the plaintiff or party entitled to recover the same, the same kind of money or currency received by him, and in case of neglect or refusal so to do, he shall be liable on his official bond to the judgment creditor in three times the amount of the money so collected. 5. If it be for the delivery of the possession of property, it must require the marshal to deliver the possession of the same, describing it, to the party entitled thereto, and may at the same time require the marshal to satisfy any costs, damages, rents, or profits recovered by the same judgment, out of the property of the person against whom it was rendered, and the value of the property for which the judgment was rendered to be specified therein if a delivery thereof can not be had. Sec. 352. When made returnable.— The execution may be madeWhen made returnable. returnable, at any time not less than ten nor more than sixty days after its receipt by the marshal, to the clerk with whom the judgment roll is filed. When the execution is returned the clerk must attach it to the judgment roll. Sec. 353. Money judgments and others, how enforced.— WhenHow money judgments and others enforced. the judgment is for money, or the possession of property, the same may be enforced by a writ of execution; and if the judgment direct 970that the defendant be arrested, the execution may issue against the person of the judgment debtor, after the return of an execution against his property unsatisfied in whole or part; when the judgment requires the sale of property, the same may be enforced by a writ reciting such judgment, or the material parts thereof, and directing the proper officer to execute the judgment, by making the sale and applying the proceeds in conformity therewith; when the judgment requires the performance of any other act than as above designated, a certified copy of the judgment may be served upon the party against whom the same is rendered, or upon the person or officer required thereby or by law to obey the same, and obedience thereto may be enforced by the court. Sec. 354.— Execution after five years.—Execution after five years. In all cases the judgment may be enforced or carried into execution after the lapse of five years from the date of its entry, by leave of the court, upon motion, or by judgment for that purpose, founded upon supplemental pleadings; but nothing in this section shall be construed to revive a judgment for the recovery of money which shall have been barred by limitation at the time of the enactment of this code. Sec. 355. When execution may issue against the property of a party after his death.—Execution on property of deceased party. Notwithstanding the death of a party after the judgment, execution thereon may be issued, or it may be enforced, as follows: 1. In case of the death of the judgment creditor, upon the application of his executor or administrator, or successor in interest; 2. In case of the death of the judgment debtor, if the judgment be for the recovery of property, or the enforcement of a lien thereon. Sec. 356. Property liable to execution; not affected until levied on.—Property liable to execution; not affected until levied on. All goods, chattels, moneys, and other property, both real and personal, or any interest therein, of the judgment debtor, not exempt by law, and all property and rights of property seized and held under attachment in the action, are liable to execution. Shares and interests in any corporation or company, and debts and credits, and all other property, both real and personal, or any interest in either real or personal property, and all other property not capable of manual delivery, may be levied upon or released from levy in like manner as like property may be attached or released from attachment. Until a levy, property is not affected by the execution; but no levy shall bind any property for a longer period than one year from the date of the issuance] of the execution; provided, however, an alias execution may be issued on said judgment and levied on any property not exempt from execution. Sec. 357. Indemnity where property claimed by third party.—Indemnity where property claimed by third party. If the property levied on is claimed by a third person as his property by a written claim verified by his oath or that of his agent, setting out his right to the possession thereof, and served upon the marshal, the marshal is not bound to keep the property unless the plaintiff, or the person in whose favor the writ of execution runs, on demand, indemnifies the marshal against such claim by an undertaking by at least two good and sufficient sureties in a sum equal to double the value of the property levied on; and the marshal is not liable for damages for the taking or keeping of such property to any such third person, unless such a claim is made. The marshal may demand and exact the undertaking herein provided for notwithstanding any defect, informality, or insufficiency of the verified claim served upon him. Sec. 358. What exempt from execution.—What exempt from execution. The following property is exempt from execution or attachment, except as herein otherwise specially provided:971 1. Chairs, tables, desks, and books, to the value of $200 belongingExemptions. to the judgment debtor; 2. Household furniture and utensils necessary for housekeeping and used for that purpose by the debtor, such as the debtor may select, of a value not exceeding $250; and all wearing apparel; 3. Tools and implements necessarily used by him in his trade or employment; 4. Two domestic animals such as the debtor may select, not exceeding $100 in value, and necessarily used by him in his ordinary occupation; 5. The professional libraries of lawyers, judges, clergymen, doctors, school teachers, and music teachers, not exceeding $250 in value; 6. One fishing boat and net, not exceeding the total value of $200, the property of any fisherman, by the lawful use of which he earns his livelihood; 7. The wages and earnings of all seamen and seagoing fishermen, not exceeding $300, regardless of where or when earned, and in addition to all other exemptions otherwise provided by any law; 8. The earnings of the judgment debtor for his personal services rendered at any time within thirty days next preceding the levy of execution or attachment, when it appears by the debtor’s affidavit or otherwise, that such earnings are necessary for the use of his family, residing in the Canal Zone, supported in whole or in part by his labor; but where debts are incurred by any such person, or his wife or family for the common necessaries of life, or have been incurred at a time when the debtor had no family residing in the Canal Zone, supported in whole or in part by his labor, the one-half of such earnings above mentioned is nevertheless subject to execution, garnishment, or attachment to satisfy debts so incurred; 9. All the nautical instruments and wearing apparel of any master, officer, or seaman of any steamer or other vessel; 10. All arms, uniforms, and accouterments required by law to be kept by any person, and also one gun, to be selected by the debtor; 11. Life insurance benefits. All moneys, benefits, privileges, or immunities accruing or in any manner growing out of any life insurance, if the annual premiums paid do not exceed $500, and if they exceed that sum a like exemption shall exist which shall bear the same proportion to the moneys, benefits, privileges, and immunities so accruing or growing out of such insurance that said $500 bears to the whole annual premiums paid; 12. Pensions. All money received by any person, a resident of the Canal Zone, as a pension from the United States Government, whether the same shall be in the actual possession of such pensioner or deposited, loaned, or invested by him. Not exempt from judgment for price.—No article, however, orNot exempt from judgment for price. species of property mentioned in this section is exempt from J execution issued upon a judgment recovered for its price, or upon a judgment of foreclosure of a mortgage or other lien thereon. Sec. 359. Writ, how executed.— The marshal must execute theHow writ executed. writ against the property of the judgment debtor, by levying on a sufficient amount of property, if there be sufficient; collecting or selling the things in action, and selling the other property, and paying to the plaintiff or his attorney so much of the proceeds as will satisfy the judgment. Any excess in the proceeds over the judgment and accruing costs must be returned to the judgment debtor, unless otherwise directed by the judgment or order of the court. When there is more property of the judgment debtor than is sufficient to satisfy the judgment and accruing costs within the view of the marshal, he must levy only on such part of the property as the 972judgment debtor may indicate, if the property indicated be amply sufficient to satisfy the judgment and costs. Sec. 360. Notice of sale under execution, how given.—Notice of sale under execution, how given. Before the sale of property on execution or under power contained in any deed of trust, notice thereof must be given as follows: 1. In case of perishable property: By posting written notice of the time and place of sale in three public places of the town where the sale is to take place, for such time as may be reasonable, considering the character and condition of the property. 2. In case of other personal property: By posting a similar notice in three public places in the town where the sale is to take place, for not less than five days nor more than ten days. 3. In case of real property: By posting a similar notice particularly describing the property for twenty days, in three public places of the town where the property is to be sold and publishing a copy thereof once a week for the same period, in some newspaper of general circulation in the Canal Zone. Provided that where real property is to be sold under the provision of any deed of trust the copy of said notice shall be posted in some conspicuous place on the property to be sold, at least twenty days before date of sale. 4. When the judgment under which the property is to be sold is made payable in a specified kind of money or currency, the several notices required by this section must state the kind, of money or currency in which bids may be made at such sale, which must be the same as that specified in the judgment. Sec. 361. Selling without notice what penalty attached.—Selling without notice, penalty. An officer selling without the notice prescribed by the last section forfeits $500 to the aggrieved party, in addition to his actual damages; and a person willfully taking down or defacing the notice posted, if done before the sale or the satisfaction of the judgment (if the judgment be satisfied before sale), forfeits $500. Sec. 362. Sales, how conducted; neither the officer conducting it nor his deputy to be a purchaser; real and personal property, how sold; judgment debtor, if present, may direct order of sale, and the officer shall follow his directions.— All sales of property under execution must be made at auction, to the highest bidder, between the hours of nine in the morning and five in the afternoon. After sufficient property has been sold to satisfy the execution, no more can be sold. Neither the officer holding the execution nor his deputy can become a purchaser or be interested in any purchase at such sale. When the sale is of personal property, capable of manual delivery, it must be within view of those who attend the sale, and be sold in such parcels as are likely to bring the highest price; and when the sale is of real property, consisting of several known lots or parcels, they must be sold separately; or when a portion of such real property is claimed by a third person, and he requires it to be sold separately, such portion must be thus sold. The judgment debtor, if present at the sale, may also direct the order in which property, real or personal, shall be sold, when such property consists of several known lots or parcels, or of articles which can be sold to advantage separately, and the marshal must follow such directions. Sec. 363. If purchaser refuses to pay purchase-money, what proceedings.—Proceedings if purchaser refuses to pay purchase money. If a purchaser refuse to pay the amount bid by him for property struck off to him at a sale under execution, the officer may again sell the property at any time to the highest bidder, and if any loss be occasioned thereby, the officer may recover the amount of such loss, with costs, from the bidder so refusing, in any court of competent jurisdiction.973 Sec. 364. Officer may refuse such purchaser’s subsequent bid.—Refusal of purchaser’s subsequent bid. When a purchaser refuses to pay, the officer may, in his discretion, thereafter reject any subsequent bid of such person. Sec. 365. These two sections not to make officer liable beyond a certain amount.—Liability of officer. Sections 363 and 364 must not be construed to make the officer liable for any more than the amount bid by the second or subsequent purchaser, and the amount collected from the purchaser refusing to pay. Sec. 366. Personal property capable of manual delivery, how delivered to purchaser.—Delivery of personal property. When the purchaser of any personal property capable of manual delivery pays the purchase-money, the officer making the sale must deliver to the purchaser the property, and, if desired, execute and deliver to him a certificate of the sale. Such certificate conveys to the purchaser all the right which the debtor had in such property on the day of 11 So in original. the execution or attachment was levied. Sec. 367. Personal property not capable of manual delivery, how sold and delivered.—When not capable of manual delivery. When the purchaser of any personal property not capable of manual delivery pays the purchase-money, the officer making the sale must execute and deliver to the purchaser a certificate of sale. Such certificate conveys to the purchaser all the right which the debtor had in such property on the day the execution or attachment was levied. Sec. 368. Sale of real property; what purchaser is substituted to and acquires.—Sale of real property, status of purchaser. Upon a sale of real property, the purchaser is substituted to and acquires all the right, title, interest, and claim of the judgment debtor thereto on the date of the levy of the execution thereon. And in case property, real or personal, has been attached in the action, the purchaser is substituted to and acquires all the right, title, interest, and claim of the judgment debtor on or at any time after the day the attachment was levied upon such property. Sec. 369. When sales are absolute; what certificate must show.— Sales of personal property, and of real property, when theWhen sales absolute; what certificate must show. estate therein is less than a leasehold of two years’ unexpired term, are absolute. In all other cases the property is subject to redemption, as provided in this subchapter. The officer must give to the purchaser a certificate of sale, and file a duplicate thereof for record in the office of the registrar of property, which certificate must state the date of the judgment under which the sale was made and the names of the parties thereto, and contain: 1. A particular description of the real property sold; 2. The price bid for each distinct lot or parcel; 3. The whole price paid; 4. If the property is subject to redemption, the certificate must so declare, and if the redemption can be effected only in a particular kind of money or currency, that fact must be stated. Sec. 370. Real property so sold, by whom it may be redeemed.—Redemption of real property so sold. Property sold subject to redemption, as provided in section 369, or any part sold separately, may be redeemed in the manner hereinafter provided, by the following persons, or their successors in interest: 1. The judgment debtor, or his successor in interest, in the whole or any part of the property; 2. A creditor having a lien or mortgage on the property sold, or on some share or part thereof, subsequent to that on which the property was sold. The persons mentioned in the second subdivision of this section are, in this subchapter, termed redemptioners. Sec. 371. When it may be redeemed, and redemption money.—When may be redeemed; redemption money. The judgment debtor, or redemptioner, may redeem the property from the purchaser any time within twelve months after the sale on 974paying the purchaser the amount of his purchase, with 1 per cent per month thereon in addition, up to the time of redemption. And if the purchaser be also a creditor, having a prior lien to that of the redemptioner, other than the judgment under which said purchase was made, the amount of such lien with interest. Sec. 372. Another redemptioner may redeem.—Another redemptioner may redeem. If property be so redeemed by a redemptioner, another redemptioner may, within sixty days after the last redemption, again redeem it from the last redemptioner, on paying the sum paid on such last redemption, with 2 per cent thereon in addition, and, in addition, the amount of any liens held by said redemptioner prior to his own, with interest; but the judgment under which the property was sold need not be so paid as a lien. Selling property again.Selling property again.—The property may be again, and as often as a redemptioner is so disposed, redeemed from any previous redemptioner within sixty days after the last redemption, on paying the sum paid on the last previous redemption, with 2 per cent thereon in addition, and the amount of any liens, other than the judgment under which the property was sold, held by the last redemptioner previous to his own with interest. Written notice to marshal; to be filed with registrar.Written notice to marshal; to be filed with registrar.—Written notice of redemption must be given to the marshal and a duplicate filed with the registrar of property, and if the redemptioner has or acquires any lien other than that upon which the redemption was made, notice thereof must in like manner be given to the marshal and filed with the registrar; and if such notice be not filed, the property may be redeemed without paying such lien. Marshal’s deed.Marshal’s deed.—If no redemption be made within twelve months after the sale, the purchaser, or his assignee, is entitled to a conveyance; or if so redeemed, whenever sixty days have elapsed, and no other redemption has been made, and notice thereof given and the time for redemption has expired, the last redemptioner, or his assignee, is entitled to a marshal’s deed; but, in all cases, the judgment debtor shall have the entire period of twelve months from the date of the sale to redeem the property. Redemption by judgment debtor.Redemption by judgment debtor.—If the judgment debtor redeem, he must make the same payments as are required to effect a redemption by a redemptioner. If the debtor redeem, the effect of the sale is terminated and he is restored to his estate. Certificate of redemption.Certificate of redemption.—Upon a redemption by the debtor, the person to whom the payment is made must execute and deliver to him a certificate of redemption, acknowledged or proved before an officer authorized to take acknowledgments. Such certificate must be filed and recorded in the office of the registrar of property, and the registrar must note the record thereof in the margin of the record of the certificate of sale. Sec. 373. In cases of redemption, to whom the payments are to be made.—Payments, in case of redemption.*Post*, p. 1029. The payments mentioned in sections 702 and 703 11 So in original. may be made to the purchaser or redemptioner, or for him, to the officer who made the sale. When the judgment under which the sale has been made is payable in a specified kind of money or currency, payments must be made in the same kind of money or currency, and a tender of the money is equivalent to payment. Sec. 374. What a redemptioner must do in order to redeem.—Redemptioner’s duties to redeem. A redemptioner must produce to the officer or person from whom he seeks to redeem and serve with his notice to the marshal making the sale, or his successor in office: 1. A copy of the docket of the judgment under which he claims the right to redeem, certified by the clerk of the court, where the 975judgment is docketed; or, if he redeem upon a mortgage or other lien, a note of the record thereof, certified by the registrar; 2. A copy of any assignment necessary to establish his claim, verified by the affidavit of himself, or of a subscribing witness thereto; 3. An affidavit by himself or his agent, showing the amount then actually due on the lien. Sec. 375. Until the expiration of redemption-time, court may restrain waste on the property; what considered waste.—Restraint of property waste. Until the expiration of the time allowed for redemption, the court may restrain the commission of waste on the property, by order granted with or without notice, on the application of the purchaser or the judgment creditor. But it is not waste for the person in possession of the property at the time of sale, or entitled to possession afterwards, during the period allowed for redemption, to continue to use it in the same manner in which it was previously used; or to use in the ordinary course of husbandry; or to make the necessary repairs of buildings thereon; or to use wood or timber on the property therefor; or for the repair of fences; or for fuel in his family, while he occupies the property. Sec. 376. Rents and profits.— The purchaser from the time ofRents and profits. the sale until a redemption, and a reclemptioner, from the time of his redemption until another redemption, is entitled to receive, from the tenant in possession, the rents of the property sold, or the value of the use and occupation thereof. But when any rents or profits have been received by the judgment creditor or purchaser, or his or their assigns, from the property thus sold preceding such redemption, the amounts of such rents and profits shall be a credit upon the redemption money to be paid; and if the redemptioner or judgment debtor, before the expiration of the time allowed for such redemption, demands in writing of such purchaser or creditor, or his assigns, a written and verified statement of the amounts of such rents and profits thus received, the period for redemption is extended five days after such sworn statement is given by such purchaser or his assigns, to such redemptioner or debtor. If such purchaser or his assigns shall, for a period of one month from and after such demand, fail or refuse to give such statement, such redemptioner or debtor may bring an action in any court of competent jurisdiction, to compel an accounting and disclosure of such rents and profits, and until fifteen days from and after the final determination of such action, the right of redemption is extended to such redemptioner or debtor. Sec. 377. If purchaser of real property be evicted for irregularities in sale, what he may recover, and from whom; when judgment to be revived; petition for the purpose, how and by who made.—Recovery, etc., by evicted purchaser of real property. If the purchaser of real property sold on execution, or his successor in interest, be evicted therefrom in consequence of irregularities in the proceedings concerning the sale, or of the reversal or discharge of the judgment, he may recover the price paid, with interest, from the judgment creditor. If the purchaser of property at marshal’s sale, or his successor in interest, fail to recoverProcedure. possession in consequence of irregularity in the proceedings concerning the sale, or because the property sold was not subject to execution and sale, the court having jurisdiction thereof must, after notice and on motion of such party in interest, or his attorney, revive the original judgment in the name of the petitioner, for the amount paid by such purchaser at the sale, with interest thereon from the time of payment at the same rate that the original judgment bore; and the 976judgment so revived has the same force and effect as would an original judgment of the date of the revival, and no more. Sec. 378. Party who pays more than his share may compel contribution.—Contribution.Who may compel. When property, liable to an execution against several persons, is sold thereon, and more than a due proportion of the judgment is satisfied out of the proceeds of the sale of the property of one of them, or one of them pays, without a sale, more than his proportion, he may compel contribution from the others; and when a judgment is against several, and is upon an obligation of one of them, as security for another, and the surety pays the amount, or any part thereof, either by sale of his property or before sale, he may compel repayment from the principal. In such case the person so paying or contributing is entitled to the benefit of the judgment, to enforce contribution or repayment, if, within ten days after his payment, he file with the clerk of the court where the judgment was rendered, notice of his payment and claim to contribution or repayment. Upon a filing of such notice, the clerk must make an entry thereof in the margin of the docket. Sec. 379. Claimant of property may give undertaking and release property.—Claimant may give undertaking and release property. Where property levied upon under execution to satisfy a judgment for the payment of money is claimed, in whole or in part, by a person, corporation, partnership or association, other than the judgment debtor, such claimant may give an undertaking as hereinafter provided, which undertaking shall release the property in the undertaking described from the lien and levy of such execution. Sec. 380. Claim of property; undertaking, amount and conditions of.—Claim of property; undertaking, amount and condition of. Such undertaking, with two sureties, shall be executed by the person, corporation, partnership or association, claiming in whole or in part, the property upon which execution is levied in double the estimated value of the property claimed by the person, corporation, partnership or association; provided, in no case need such undertaking be for a greater sum than double the amount for which the execution is levied; and where the estimated value of the property so claimed by the person, corporation, partnership or association is less than the sum for which such attachment is levied, such estimated value shall be stated in the undertaking, and said undertaking shall be conditioned that if the property claimed, by the person, corporation, partnership or association is finally adjudged to be the property of the judgment debtor, said person, corporation, partnership or association will pay of said judgment upon which execution has issued a sum equal to the value, as estimated in said undertaking, of said property claimed by said person, corporation, partnership or association, and said property claimed shall be described in said undertaking. Sec. 381. Claim of property; undertaking, filing, and serving.—Filing and serving undertaking. Said undertaking shall be filed in the action in which said execution issued, and a copy thereof served upon the judgment creditor or his attorney in said action. Sec. 382. Claim of property; undertaking, objections to.—Objections to. Within ten days after the service of the copy of undertaking, the judgment creditor may object to such undertaking on the ground of inability of the sureties, or either of them, to pay the sum for which they become bound in said undertaking, and upon the ground that the estimated value of property therein is less than the market value of the property claimed. Such objection to the undertaking shall be made in writing, specifying the ground or grounds of objection, and if the objection is made to the undertaking that the estimated value therein is less than the market value of the property claimed, 977such objection shall specify the judgment creditor’s estimate of the market value of the property claimed. Such written objection shall be served upon the person, partnership, corporation, or association giving such undertaking and claiming the property therein described. Sec. 383. Claim of property; justification, approval, and disapproval.—Justification, approval, and disapproval. When the sureties, or either of them, are objected to, the surety or sureties so objected to shall justify before the court out of which such execution issued, upon ten days’ notice of the time when they will so justify being given to the judgment debtor or his attorney. Upon the hearing and examination into the sufficiency of a surety, witnesses may be required to attend and evidence may be procured and introduced in the same manner as in trial of civil cases. Upon such hearing and examination, the court shall make its order, in writing, approving or disapproving the sufficiency of the surety or sureties on such undertaking. In case the court disapproves of the surety or sureties on any undertaking, a new undertaking may be filed and served, and to any undertaking given under the provisions of sections 379 to 386, the same objection to the sureties may be made, and the same proceedings had as in case of the first undertaking filed and served. Sec. 384. Claim of property; undertaking, estimate of value, and new undertakings.—Undertaking, estimate of value, and new undertakings. When objection is made to the undertaking upon the ground that the estimated value of the property claimed, as stated in the undertaking, is less than the market value of the property claimed, the person, corporation, partnership, or association may accept the estimated value stated by the judgment creditor in said objection, and a new undertaking may be at once filed with the judgment creditor’s estimate stated therein as the estimated value, and no objection shall thereafter be made upon that ground; if the judgment creditor’s estimate of the market value is not accepted, the person, corporation, partnership, or association giving the undertaking shall move the court in which the execution issued, upon ten days’ notice to the judgment creditor, to estimate the market value of the property claimed and described in the undertaking, and upon the hearing of such motion witnesses may be required to attend and testify, and evidence be produced in the same manner as in the trial of civil actions. Upon the hearing of such motion, the court shall estimate the market value of the property described in the undertaking, and if the estimated value made by the court exceeds the estimated value as stated in the undertaking, a new understanding 11 So in original. shall be filed and served, with the market value determined by the court stated therein as the estimated value. Sec. 385. Claim of property; undertaking, justification of sureties.—Undertaking, justification of sureties. The sureties shall justify on the undertaking as required by section 533. Sec. 386. Claim of property; undertaking, when becomes effective.—When becomes effective. The undertaking shall become effective for the purpose herein specified ten days after service of copy thereof on the judgment debtor, unless objection to such undertaking is made as herein provided, and in case objection is made to the undertaking filed and served, then the undertaking shall become effective for such purposes when an undertaking is given as herein provided. proceedings supplemental to executionProceedings supplemental to execution. Sec. 387. Debtor required to answer concerning his property, when.—Debtor required to answer concerning his property, when. When an execution against property of the judgment debtor, 978or of any one of several debtors in the same judgment, issued to the marshal, is returned unsatisfied in whole or in part, the judgment creditor, at any time after such return is made, is entitled to an order from the judge of the court, requiring such judgment debtor to appear and answer concerning his property before such judge, or a referee appointed by him, at a time and place specified in the order. Sec. 388. Proceedings to compel debtor to appear; in what cases he may be arrested; what bail may be given.—Proceedings to compel debtor to appear; when may be arrested; bail. After the issuing of an execution against property, and upon proof, by affidavit of a party or otherwise, to the satisfaction of the judge of the court, that any judgment debtor has property which he unjustly refuses to apply toward the satisfaction of the judgment, such judge may, by an order, require the judgment debtor to appear, at a specified time and place, before such judge, or a referee appointed by him, to answer concerning the same; and such proceedings may thereupon be had for the application of the property of the judgment debtor toward the satisfaction of the judgment as are provided upon the return of an execution. Instead of the order requiring the attendance of the judgment debtor, the judge may, upon affidavit of the judgment creditor, his agent or attorney, if it appear to him that there is danger of the debtor absconding, order the marshal to arrest the debtor and bring him before such judge. Upon being brought before the judge, he may be ordered to enter into an undertaking, with sufficient surety, that he will attend from time to time before the judge or referee, as may be directed during the pendency of proceedings and until the final termination thereof, and will not in the meantime dispose of any portion of his property not exempt from execution. In default of entering into such undertaking he may be committed to jail. Sec. 389. Any debtor of the judgment debt or may pay the latter’s creditor.—Any debtor of the judgment debtor may pay the latter’s creditor. After the issuing of an execution against property, and before its return, any person indebted to the judgment debtor may pay to the marshal the amount of his debt, or so much thereof as may be necessary to satisfy the execution; and the marshal’s receipt is a sufficient discharge for the amount so paid. Sec. 390. Examination of debtors of judgment debtor, or of those having property belonging to him.—Examination of debtors of judgment debtor, etc. After the issuing or return of an execution against property of the judgment debtor, or of any one of several debtors in the same judgment, and upon proof by affidavit or otherwise, to the satisfaction of the judge, that any person or corporation has property of such judgment debtor, or is indebted to him in an amount exceeding $50, the judge may, by an order, require such person or corporation, or any officer or member thereof, to appear at a specified time and place before him, or a referee appointed by him, and answer concerning the same. Sec. 391. Witnesses required to testify.—Witnesses required to testify. Witnesses may be required to appear and testify before the judge or referee, upon any proceeding under this subchapter, in the same manner as upon the trial of an issue. Sec. 392. Judge may order property to be applied on execution.—Judge may order property to be applied on execution. The judge or referee may order any property of the judgment debtor, not exempt from execution, in the hands of such debtor, or any other person, or due to the judgment debtor, to be applied toward the satisfaction of the judgment; but no such order can be made as to money or property in the hands of any other person or claimed to be due from him to the judgment debtor, if such person claims an interest in the property adverse to the judgment debtor or denies the debt.979 Sec. 393. Proceedings upon claim of an other party.— If itProceedings upon claim of another party. appears that a person or corporation, alleged to have property of the judgment debtor, or to be indebted to him, claims an interest in the property adverse to him, or denies the debt, the judgment creditor may maintain an action against such person or corporation for the recovery of such interest or debt; and the court or judge may, by order, forbid a transfer or other disposition of such interest or debt, until an action can be commenced and prosecuted to judgment. Such order may be modified or vacated by the judge granting the same, or the court in which the action is brought, at any time, upon such terms as may be just. Sec. 394. Disobedience of orders, how punished.— If any person,Punishment for disobedience of orders. party, or witness disobey an order of the referee, properly made, in the proceedings before him under this subchapter, he may be punished by the court or judge ordering the reference, for a contempt. CHAPTER 13.— ACTIONS IN PARTICULAR CASESACTIONS IN PARTICULAR CASES. actions for foreclosure of mortgagesForeclosure of mortgages. Sec. 395. Proceedings in foreclosure suits.— There can be butProceedings. one action for the recovery of any debt, or the enforcement of any right secured by mortgage upon real or personal property, which action must be in accordance with the provisions of this subchapter. In such action the court may, by its judgment, direct the sale of the encumbered property (or so much thereof as may be necessary), and the application of the proceeds of the sale to the payment of the costs of court, and the expenses of the sale, and the amount due plaintiff, including, where the mortgage provides for the payment of attorney’s fees, such sum for such fees as the court shall find reasonable, not exceeding the amount named in the mortgage. The court may, by its judgment, or at any time after judgment, appoint a commissioner to sell the encumbered property. It must require of him an undertaking in an amount fixed by the court, with sufficient sureties, to be approved by the judge, to the effect that the commissioner will faithfully perform the duties of his office according to law. Before entering upon the discharge of his duties he must file such undertaking, so approved, together with his oath that he will faithfully perform the duties of his office. If it appear from the marshal’s return, or from the commissioner’s report, that the proceeds are insufficient, and a balance still remains due, judgment must then be docketed by the clerk in the manner provided in this code for such balance against the defendant or defendants personally liable for the debt. No person holding a conveyance from or under the mortgager of the property mortgaged, or having a lien thereon, which conveyance or lien does not appear of record in the office of the registrar of property at the time of the commencement of the action, need be made a party to such action, and the judgment therein rendered, and the proceedings therein had, are as conclusive against the party holding such unrecorded conveyance or lien as if he had been a party to the action. If the court appoint a commissioner for the sale of the property, he must sell it in the manner provided by law for the sale of like property by the marshal upon execution; and the provisions of sections 349 to 386 are hereby made applicable to sale made by such*Ante*, p. 968. commissioner, and the powers therein given and the duties therein imposed on the marshal are extended to such commissioner. Sec. 396. Surplus money to be deposited in court.— If there beSurplus money to be deposited in court. surplus money remaining, after payment of the amount due on the 980mortgage, lien, or encumbrance, with costs, the court may cause the same to be paid to the person entitled to it, and in the meantime may direct it to be deposited in court. Sec. 397. Proceedings when debt secured falls due at different times.—When debt secured falls due at different times. If the debt for which the mortgage, lien, or encumbrance is held is not all due, so soon as sufficient of the property has been sold to pay the amount due, with costs, the sale must cease, and afterwards, as often as more becomes due, for principal or interest, the court may, on motion, order more to be sold. But if the property can not be sold in portions, without injury to the parties, the whole may be ordered to be sold in the first instance, and the entire debt and costs paid, there being a rebate of interest where such rebate is proper. Sec. 398. Commissioner’s oath, bond, report, and compensation.—Commissioner’s oath, bond, report, and compensation. The commissioner, before entering upon his duties, must be sworn to perform them faithfully, and the court making the appointment shall require of him an undertaking, with sufficient sureties, to be approved by the court, in an amount to be fixed by the court, to the effect that he will faithfully perform the duties of commissioner, according to law. Within thirty days after such sale, the commissioner must file with the clerk of the court in which the action is pending, a verified report and account of the sale, together with the proper affidavits, showing that the regular and required notice of the time and place of the sale was given, which report and account shall have the same force and effect as the marshal’s return in sales under execution. In all cases of sales made by a commissioner, the court in which the proceedings are pending shall fix a reasonable compensation for the commissioner’s services, but in no case to be less than the sum of $10. actions for nuisance and wasteActions for nuisance and waste. Sec. 399. Nuisance defined; abatement of; actions instituted, by whom.—Nuisance defined; abatement, by whom actions instituted. An action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by a nuisance, as the same is defined in section 1685 of the Civil Code, and by the judgment in such action the nuisance may be enjoined or abated as well as damages recovered therefor. A civil action may be brought in the name of the Government of the Canal Zone to abate a public nuisance, as the same is defined in section 1686 of the Civil Code, by the district attorney. Sec. 400. Waste, actions for.—Actions for waste. If a guardian, tenant for life or years, joint tenant, or tenant in common of real property, commit waste thereon, any person aggrieved by the waste may bring an action against him therefor, in which action there may be judgment for treble damages. actions to determine conflicting claims to property, and other provisions relating to actions concerning real estateConflicting claims to property; real estate. Sec. 401. Action to quiet title to real and personal property.—To quiet title. An action may be brought by any person against another who claims an estate or interest in real or personal property adverse to him, for the purpose of determining such adverse claim; provided, however, that whenever in an action to quiet title to, or to determine adverse Claim arising under will.claims to, real or personal property, the validity or interpretation of any gift, devise, bequest, or trust, under any will or instrument purporting to be a will, whether admitted to probate or not, shall be 981involved, such will, or instrument purporting to be a will, is admissible in evidence; and all questions concerning the validity of any gift, devise, bequest, or trust therein contained, save such as belong exclusively to the probate jurisdiction, shall be determined in such*Provisos*.Construction of will. action: *Provided*, That if the said will shall have been admitted to probate and interpreted by a decree of the district court, which decree has become final, such interpretation shall be conclusive as to the proper construction of said will, or any part thereof, so construed, in any action under this section: *And provided*, *however*,Jury trials. That nothing herein contained shall be construed to deprive a party of the right to a jury trial in any case where by the law such right is now given. Sec. 402. When plaintiff can not recover costs.— If the defendantWhen plaintiff can not recover costs. in such action disclaim in his answer any interest or estate in the property, or suffer judgment to be taken against him without answer, the plaintiff can not recover costs. Sec. 403. Where plaintiff’s right terminates pending suit, what he may recover.—Where plaintiff’s right terminates pending suit, what he may recover. In an action for the recovery of property, where the plaintiff shows a right to recover at the time the action was commenced, but it appears that his right has terminated during the pendency of the action, the verdict and judgment must be according to the fact, and the plaintiff may recover damages for withholding the property. Sec. 404. When value of improvements can be all owed as a set-off.—When value of improvements can be allowed as set-off. When damages are claimed for withholding the property recovered, upon which permanent improvements have been made by a defendant, or those under whom he claims, holding under color of title adversely to the claim of the plaintiff, in good faith, the value of such improvements must be allowed as a set-off against such damages. Sec. 405. An order may be made to allow a party to survey and measure the land indispute.—Surveying, etc., land in dispute. The court in which an action is pending for the recovery of real property, or for damages for an injury thereto, or the judge thereof may, on motion, upon notice by either party for good cause shown, grant an order allowing to such party the right to enter upon the property and make survey and measurement thereof, for the purpose of the action, even though entry for such purpose has to be made through other lands belonging to parties to the action. Sec. 406. Order, what to contain, and how served; if unnecessary injury done, the party surveying to be liable therefor.—Order, what to contain, service; liability for unnecessary injury. The order must describe the property, and a copy thereof must be served on the owner or occupant; and thereupon such party may enter upon the property, with necessary surveyors and assistants, and make such survey and measurements; but if any unnecessary injury be done to the property he is liable therefor. Sec. 407. A mortgage must not be deemed a conveyance, whatever its terms.—Mortgage not a conveyance, whatever its terms. A mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale. Sec. 408. When court may grant in junction during foreclosure or after sale on execution, before conveyance.—Injunction during foreclosure or after sale on execution, before conveyance. The court may, by injunction, on good cause shown, restrain the party in possession from doing any act to the injury of real property during the foreclosure of a mortgage thereon; or, after a sale on execution, before a conveyance.982 Sec. 409. Damages may be recovered for injury to the possession after sale and before delivery of possession.—Recovery of damages. When real property has been sold on execution, the purchaser thereof, or any person who may have succeeded to his interest, may, after his estate becomes absolute, recover damages for injury to the property by the tenant in possession after sale, and before possession is delivered under the conveyance. Sec. 410. Action not to be prejudiced by alienation pending suit.—Action not to be prejudiced by alienation pending suit. An action for the recovery of real property against a person in possession can not be prejudiced by any alienation made by such person, either before or after the commencement of the action. CHAPTER 14.— PROCEEDINGS IN MAGISTRATES’ COURTSPROCEEDINGS IN MAGISTRATES’ COURTS. place of trial of actions in magistrates’ courtsPlace of trial. Sec. 411. Actions, where must be commenced.—Where actions must be commenced. Actions in magistrates’ courts must be commenced, and, subject to the right to change the place of trial, as in this subchapter provided, must be tried: 1. In the subdivision in which the defendant resides; 2. When two or more persons are jointly, or jointly and severally, bound in any debt or contract, or otherwise jointly liable in the same action, and reside in different subdivisions—in either subdivision; 3. In cases of injury to the person or property—in the subdivision where the injury was committed, or where the defendant resides; 4. If for the recovery of personal property, or the value thereof, or damages for taking or detailing the same—in the subdivision in which the property may be found, or in which the property was taken, or in which the defendant resides; 5. When the defendant is a nonresident of the Canal Zone—in either subdivision; 6. When a person has contracted to perform an obligation at a particular place, and resides in the other subdivision—in the subdivision in which such obligation is to be performed, or in which he resides; and the subdivision in which the obligation is incurred is deemed to be the subdivision in which it is to be performed, unless there is a special contract in writing to the contrary; 7. When the parties voluntarily appear and plead without summons—in either subdivision; 8. In all other cases—in the subdivision in which the defendant resides. Sec. 412. Place of trial may be changed in certain cases.—Change of venue. The court may, at any time before the trial, on motion, change the place of trial in the following cases: 1. When it appears to the satisfaction of the magistrate before whom the action is pending, by affidavit of either party, that such magistrate is a material witness for either party; 2. When either party makes and files an affidavit that he believes that he can not have a fair and impartial trial before such magistrate, by reason of the interest, prejudice, or bias of the magistrate; 3. When, from any cause, the magistrate is disqualified from acting. Sec. 413. Proceedings after order changing place of trial.—Proceedings thereafter. After an order has been made, transferring the action for trial to another court, the following proceedings must be had: 1. The magistrate ordering the transfer must immediately transmit to the magistrate of the court to which it is transferred, on payment 983by the party applying of all the costs that have accrued, all the papers in the action, together with a certified transcript from his docket of the proceedings therein; 2. Upon the receipt by him of such papers, the magistrate to whom the case is transferred has thereafter the same jurisdiction over the action as though it had been commenced in his court. manner of commencing actions in magistrates’ courtsActions in magistrates’ courts. Sec. 414. Actions, how commenced.—Complaint. An action in a magistrate’s court is commenced by filing a complaint. Sec. 415. Summons may issue within a year.— The court mustSummons. indorse on the complaint the date upon which it was filed, and at any time within one year thereafter the plaintiff may have summons issued. Sec. 416. Defendant may waive summons.— At any time after theWaiver of, by defendant. complaint is filed the defendant may, in writing, or by appearing and pleading, waive the issuing of summons. Sec. 417. Parties may appear in person or by attorney.— PartiesAppearance. in magistrates’ courts may appear and act in person or by attorney. Sec. 418. When guardian necessary, how appointed.— When anAppointment of guardian. infant, insane, or incompetent person is a party, he must appear either by his general guardian, if he have one, or by a guardian ad litem appointed by the magistrate. When a guardian ad litem is appointed by the magistrate, he must be appointed as follows: 1. If the infant, insane, or incompetent person, be plaintiff, the appointment must be made before the summons is issued, upon the application of the infant, if he be of the age of fourteen years; if under that age, or if insane, or incompetent, upon the application of a relative or friend. 2. If the infant, insane, or incompetent person, be defendant, the appointment must be made at the time the summons is returned, or before the answer, upon the application of the infant, if he be of the age of fourteen years and apply at or before the summons is returned; if he be under the age of fourteen, or be insane or incompetent, or neglect so to apply, then upon the application of a relative or friend, or any other party to the action, or by the magistrate on his own motion. Sec. 419. Summons, how issued, directed, and what to contain.—Summons. The summons must be directed to the defendant, signed by the magistrate, and must contain: 1. The title of the court, name of the subdivision in which the action is brought, and the names of the parties thereto; 2. A direction that the defendant appear and answer before the magistrate, as specified in section 420; 3. A notice that unless the defendant so appear and answer, the plaintiff will take judgment for any money or damages demanded in the complaint, as arising upon contract, or will apply to the court for the relief demanded in the complaint. If the plaintiff appears by attorney, the name of the attorney must be indorsed upon the summons. Sec. 420. Time for appearance of defendant.— The time specifiedTime for appearance of defendant. in the summons for the appearance of the defendant must be as follows: 1. If an order of arrest is indorsed upon the summons, forthwith; 2. In all other cases, within five days, if the summons is served in the subdivision, in which the action is brought; within ten days, if served in the other subdivision.984 Sec. 421. Alias summons.—Alias summons. If the summons is returned without being served upon any or all of the defendants, or if it has been lost, the magistrate, upon the demand of the plaintiff, may issue an alias summons, in the same form as the original, except that he may fix the time for the appearance of the defendant at a period not to exceed ninety days from its date. Sec. 422. Same.— The magistrate may, within a year from the date of the filing of the complaint, issue as many alias summonses as may be demanded by the plaintiff. Sec. 423. Service of summons outside of subdivision.—Service of, outside cf subdivision. The summons can not be served out of the subdivision wherein the action is brought, except in the following cases: 1. When the action is upon the joint contract or obligation of two or more persons, one of whom resides within the subdivision; 2. When the action is brought against a party who has contracted in writing to perform an obligation at a particular place, and resides in the other subdivision; 3. When the action is for injury to person or property, and the defendant resides in the other subdivision; 4. In all cases where the defendant was a resident of the subdivision when the action was brought, or when the obligation was incurred, and thereafter departed therefrom, in which event he may be served wherever he may be found; 5. In actions of forcible entry and detainer, or to enforce and foreclose liens on, or to recover possession of, personal property situated within the subdivision. Sec. 424. Summons, by whom and how served and returned.—By whom and how served and returned. The summons may be served by the constable of either of the Magistrates’ Courts of the Canal Zone or by any other person of the age of eighteen years or over not a party to the action. When a summons issued by a magistrate is to be served out of the subdivision in which it is issued the summons must be served and returned as provided in chapter 8 of this code, or it may be served by publication *Ante*, p. 924.and sections 121 and 122 so far as they relate to the publication of summons are made applicable to magistrates’ courts, the word magistrate being substituted for the word judge wherever the latter word occurs. Sec. 425. Notice of hearing in magistrates’ courts.—Notice of hearing in magistrates’ courts. When all the parties served with process shall have appeared, or some of them have appeared, and the remaining defendants have made default, the magistrate must fix the day for the trial of said cause, and give notice thereof to the parties to the action who have appeared, but in case any of the parties are represented by an attorney, then to *Provisos*.Address of party appearing in person.such attorney: *Provided*, *however*, That where a party has appeared in person, such party shall leave with the magistrate or magistrate’s clerk, and the same shall be entered upon the register in the action, an address where service of the notice of hearing of such matter Service of notice.may be made: *Provided*, *further*, That such notice shall be personally served on said person if he can be found at said address, but in case said person can not, after due diligence, be found at said address and such fact appears by affidavit to the satisfaction of the magistrate, then the service of such notice may be by registered mail and in the manner hereinafter provided for service of notice by mail. Such notice shall be in writing, signed by the magistrate, and substantially in the following form, filling blanks according to the facts:985 Form of notice.—In the magistrate’s court, subdivision of ____,Form of notice, Canal Zone. “____ plaintiff, *v*. ____ defendant “To ____ plaintiff, or ____ attorney for plaintiff, and to defendant, or ____ attorney for defendant: “You and each of you will please take notice that the undersigned magistrate before whom the above-entitled cause is pending, has set for hearing the demurrer of ____, filed in said cause (or has set the said cause for trial, as the case may be), before me at __, at ____ o’clock _ m., on the ____day of __, 19__. “Dated this ____ day of _, 19_. “(Signed) ____ ____, “Magistrate.” Service; service by mail.—Said notice shall be served by mail orService by mail. personally. When served by mail the magistrate shall deposit copies thereof in a sealed envelope in the post office at least ten days before the trial or hearing addressed to each of the persons on whom it is to be served at their place of residence: *Provided*, That such notice*Proviso*.When to be resorted to. shall be served by mail only when the person on whom service is to be made resides out of the subdivision in which said magistrate’s court is situated, or is absent therefrom or has appeared in person. When personally served said notice shall be served at least five days before the trial or hearing on the persons on whom it is to be served by any person competent and qualified to serve a summons in a magistrate’s court, and when personally served it shall be served, returned and filed in like manner as a summons. When a party has*Post*, p. 999. appeared by attorney the notice may be served in the manner prescribed by subdivision 1 of section 515. Docket entries.—The magistrate shall enter on his docket theDocket entries. date of trial or hearing; and when such notice shall have been served by mail the magistrate shall enter on his docket the date of mailing such notice of trial or hearing and such entry shall be prima facie evidence of the fact of such service. The parties are entitled to one hour in which to appear after the time fixed in said notice, but are not bound to remain longer than that time unless both parties have appeared and the magistrate being present is engaged in the trial of another cause. pleadings in magistrates’ courtsPleadings in magistrates’ courts. Sec. 426. Form of pleadings.— Pleadings in magistrates’ courts—Form. 1. Are not required to be in any particular form, but must be such as to enable a person of common understanding to know what is intended; 2. May, except the complaint, be oral or in writing; 3. Need not be verified, unless otherwise provided in this chapter; 4. If in writing, must be filed with the magistrate; 5. If oral, an entry of their substance must be made in the docket. Sec. 427. Pleadings in magistrates’ courts.— The pleadings are: 1. The complaint by the plaintiff; 2. The demurrer to the complaint; 3. The answer by the defendant; 4. The demurrer to the answer. Sec. 428. Complaint defined.—“Complaint” defined. The complaint in magistrates’ courts is a concise statement, in writing, of the facts constituting the plaintiff’s cause of action; or a copy of the account, note, bill, bond, or instrument upon which the action is based.986 Sec. 429. When demurrer to complaint may be put in.—Demurrer. The defendant may, at any time before answering, demur to the complaint. Sec. 430. Answer, what to contain.—Answer. The answer may contain a denial of any or all of the material facts stated in the complaint, which the defendant believes to be untrue, and also a statement, in a plain and direct manner, of any other facts constituting a defense or counterclaim, upon which an action might be brought by the defendant against the plaintiff, or his assignor, in a magistrate’s court. Sec. 431. If the defendant omit to set up counterclaim.—Counterclaim. If the defendant omit to set up a counterclaim in the cases mentioned in section 430, neither he nor his assignee can afterwards maintain an action against the plaintiff therefor. Sec. 432. When plaintiff may demur to answer.—Demurrer to answer. When the answer contains new matter in avoidance, or constituting a defense or a counterclaim, the plaintiff may, at any time before the trial, demur to the same for insufficiency, stating therein the grounds of such demurrer. Sec. 433. When affirmative judgment may be rendered for defendant.—When affirmative judgment may be rendered. Affirmative judgment may be rendered for the defendant on his cross-complaint (counterclaim) whenever the defendant proves that he is entitled to more than the plaintiff has proven or whenever the plaintiff fails to prove that he is entitled to any judgment. Sec. 434. The proceedings on demurrer.—Proceedings on demurrer. The proceedings on demurrer are as follows: 1. If the demurrer to the complaint is sustained, the plaintiff may, within such time, not exceeding two days, as the court allows, amend his complaint; 2. If the demurrer to a complaint is overruled, the defendant may answer forthwith; 3. If the demurrer to an answer is sustained, the defendant may amend his answer within such time, not exceeding two days, as the court may allow; 4. If the demurrer to an answer is overruled, the action must proceed as if no demurrer had been interposed. Sec. 435. Amendment of pleadings.—Amendment of pleadings. Either party may, at any time before the conclusion of the trial, amend any pleading; but if the amendment is made after the issue, and it appears to the satisfaction of the court, by oath, that an adjournment is necessary to the adverse party in consequence of such amendment, an adjournment must be granted. The court may also, in its discretion, when an adjournment will by the amendment be rendered necessary, require as a condition to the allowance of such amendment, made after issue joined, the payment of costs to the adverse party. Relief against judgment.Relief against judgment.—The court may also, on such terms as may be just, and on payment of costs, relieve a party from a judgment by default taken against him by his mistake, inadvertence, surprise, or excusable neglect, but the application for such relief must be made within ten days after notice of the entry of the judgment and upon an affidavit showing good cause therefor. Sec. 436. Answer or demurrer to amended pleadings.—Answer or demurrrer to amended pleadings. When a pleading is amended, the adverse party may answer or demur to it within such time, as the court may allow, not exceeding five days after notice of the amendment.987 provisional remedies in magistrates’ courts arrest and bailProvisional remedies in magistrates’ courts.Arrest and bail. Sec. 437. Order of arrest, and arrest of defendant.— An orderOrder of arrest; arrest of defendant. to arrest the defendant may be indorsed on a summons issued by the magistrate, and the defendant may be arrested thereon by the constable, at the time of serving the summons, and brought before the magistrate, and there detained until duly discharged, in the following cases: 1. In an action for the recovery of money or damages on a cause of action arising upon contract, express, or implied, when the defendant is about to depart from the Canal Zone, with intent to defraud his creditors; 2. In an action for a fine or penalty, or for money or property embezzled or fraudulently misapplied, or converted to his own use by one who received it in a fiduciary capacity; 3. When the defendant has been guilty of a fraud in contracting the debt or incurring the obligation for which the action is brought; 4. When the defendant has removed, concealed, or disposed of his property, or is about to do so, with intent to defraud his creditors. Sec. 438. Affidavit and undertaking for order of arrest.—Affidavit and undertaking for order of arrest. Before an order for an arrest can be made, the party applying must prove to the satisfaction of the magistrate by the affidavit of himself, or some other person, the facts upon which the application is founded. The plaintiff must also execute and deliver to the magistrate a written undertaking in the sum of $300, with sufficient sureties, to the effect that the plaintiff will pay all costs that may be adjudged to the defendant, and all damages which he may sustain by reason of the arrest, if the same be wrongful, or without sufficient cause, not exceeding the sum specified in the undertaking. Sec. 439. A defendant arrested must be taken before the magistrate immediately.—Appearance of defendant. The defendant, immediately upon being arrested, must be taken before the magistrate who made the order, and if he is absent or unable to try the action, or if it appears to him by the affidavit of the defendant that he is a material witness in the action, the officer must immediately take the defendant before the magistrate of the other subdivision, who must take jurisdiction of the action and proceed thereon, as if the summons had been issued and the order of arrest made by him. Sec. 440. The officer must give notice to the plaintiff of arrest.—Notice to plaintiff of arrest. The officer making the arrest must immediately give notice thereof to the plaintiff, or his attorney or agent, and indorse on the summons, and subscribe a certificate, stating the time of serving the same, the time of the arrest, and of his giving notice to the plaintiff. Sec. 441. The officer must detain the defendant.— The officerDetention of defendant. making the arrest must keep the defendant in custody until he is discharged by order of the magistrate. attachmentAttachment. Sec. 442. Issue of writ of attachment.— A writ to attach theIssue of writ. property of the defendant must be issued by the magistrate at the time of or after issuing summons in actions in which the sum claimed exclusive of interest exceeds $10, on receiving an affidavit by or on behalf of the plaintiff, showing the same facts as are required to be shown by the affidavit specified in section 221. Sec. 443. Attachment, undertaking on; exceptions to sureties.—Undertaking on; exceptions to sureties. Before issuing the writ, the magistrate must require a written under-988taking on the part of the plaintiff, with two or more sufficient sureties, in a sum not less than $50 nor more than $300, to the effect that if the defendant recovers judgment, the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking. At any time after the issuing of the attachment, but not later than five days after the notice of its levy, the defendant may except to the sufficiency of the sureties. If he fails to do so, he is deemed to have waived all objections to them. *Ante*, p. 944.When excepted to they must justify in the manner and within the time provided in section 222, otherwise the magistrate must order the writ of attachment vacated. Sec. 444. To whom writ directed; what to require.—To whom writ directed; requirements. The writ must be directed to the constable and must require him to attach and safely keep all of the property of the defendant within his subdivision not exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff’s demand against the defendant, the amount of which must be stated in conformity with the complaint, unless the defendant, whose property has been or is about to be attached, give him security by the undertaking of two sufficient sureties, in an amount sufficient to satisfy such demand against such defendant besides costs; in which case to take such undertaking. In the event that the action is against more than one defendant, any defendant whose property has been or is about to be attached in such action may give the constable such undertaking, and the constable shall take the same, and such undertaking shall not subject such defendant to or be answerable for any demand against any other defendant, nor shall the constable thereby be prevented from attaching or be obliged to release from attachment, any property of any *Proviso*.Sworn statement to be filed.other defendant: *Provided*, *however*, That such defendant, at the time of giving such undertaking to the constable, shall file with the constable a statement duly verified under oath, wherein such defendant shall aver and declare that the other defendant or defendants in the action in which said undertaking was given has or have not any interest or claim of any nature whatsoever in or to said property. Such statement must further contain the character of such defendant’s title and the manner in which he acquired title to such attached property. Service out of subdivision.Service out of subdivision.—A writ may be issued at the same time to the constable of the other subdivision. Sec. 445. Certain provisions apply to all attachments in magistrates’ courts.—Provisions applicable to all attachments in magistrates’ courts.*Ante*, pp. 926, 944. Section 121 and sections 224 to 243, both inclusive, of this code are applicable to attachments issued in magistrates’ courts, the word “constable ” being substituted for the word “marshal,” and the word “magistrate ” being substituted for the word “judge.” claim and delivery of personal propertyClaim and delivery of personal property. Sec. 446. How claim and delivery enforced.—How enforced. In an action to recover possession of personal property, the plaintiff may, at the time of issuing summons or at any time thereafter before answer, claim the delivery of such property to him; and the sections of this *Ante*, p. 939.code from section 202 to section 213, both inclusive, are applicable to such claim when made in magistrates’ courts, the powers therein given and duties imposed on the marshal being extended to constables, and the word “magistrate ” substituted for “judge.”989 judgment by default in magistrates’ courtsJudgment by default. Sec. 447. Judgment when defendant fails to appear.— If theFailure of defendant to appear. defendant fails to appear and to answer or demur within the time specified in the summons, then, upon proof of service of summons, the following proceedings must be had: 1. If the action is based upon a contract, and is for the recovery of money, or damages only, the court must render judgment in favor of plaintiff for the sum specified in the summons. 2. In all other actions the court must hear the evidence offered by the plaintiff, and must render judgment in his favor for such sum (not exceeding the amount stated in the summons), as appears by such evidence to be just. Sec. 448. Judgment by default.— In the following cases the sameOther cases, when must be rendered. proceedings must be had and judgment must be rendered in like manner as if the defendant had failed to appear and answer, or demur: 1. If the complaint has been amended, and the defendant fails to answer it, as amended, within the time allowed by the court; 2. If the demurrer to the complaint is overruled, and the defendant fails to. answer within the time allowed by the court, not to exceed five days; 3. If the demurrer to the answer is sustained and the defendant fails to amend the answer within the time allowed by the court. time of trial and postponements in magistrates’ courtsTime of trial and postponements. Sec. 449. Time when trial must be commenced.— Unless postponed,Commencement. as provided in this subchapter, or unless transferred to the other subdivision, the trial of the action must commence at the expiration of one hour from the time specified in the notice mentioned in section 425, and the trial must be continued, without adjournment for more than twenty-four hours at any one time, until all the issues therein are disposed of. Sec. 450. When court may, of its own motion, postpone trial.—Postponement. The court may, of its own motion, postpone the trial— 1. For not exceeding one day, if, at the time fixed by law or by an order of the court for the trial, the court is engaged in the trial of another action; 2. For not exceeding two days, if, by an amendment of the pleadings, or the allowance of time to make such amendment or to plead, a postponement is rendered necessary. Sec. 451. Postponement by consent.— The court may, by consentBy consent. of the parties, given in writing or in open court, postpone the trial to a time agreed upon by the parties. Sec. 452. Postponement upon application of a party.— The trialUpon application of a party. may be postponed upon the application of either party, for a period not exceeding four months: 1. The party making the application must prove, by his own oath or otherwise, that he can not, for want of material testimony, which he expects to procure, safely proceed to trial, and must show in what respect the testimony expected is material, and that he has used due diligence to procure it and has been unable to do so; 2. If the application is on the part of the plaintiff, and the defendant is under arrest, a postponement for more than three hours discharges the defendant from custody, but the action may proceed notwithstanding, and the defendant is subject to arrest on execution, in the same manner as if he had not been discharged;990 3. If the application is on the part of a defendant under arrest, before it can be granted he must execute an undertaking, with two or more sufficient sureties, to be approved by, and in a sum to be fixed by, the justice, to the effect that he will render himself amenable to the process of the court during the pendency of the action, and to such as may be issued to enforce the judgment therein; or that the sureties will pay to the plaintiff the amount of any judgment which he may recover in the action, not exceeding the amount specified in the undertaking. On filing the undertaking specified in this subdivision, the magistrate must order the defendant to be discharged from custody. 4. The party making the application must, if required by the adverse party, consent that the testimony of any witness of such adverse party, who is in attendance, may be then taken by deposition before the magistrate, and that the testimony so taken may be read on the trial, with the same effect, and subject to the same objections, as if the witness was produced; But the court may require the party making the application to state, upon affidavit, the evidence which he expects to obtain; and if the adverse party thereupon admits that such evidence would be given, and that it be considered as actually given on the trial, or offered and overruled as improper, the trial must not be postponed. Sec. 453. No continuance for more than ten days to be granted, unless up on filing of undertaking.—Limitation on continuance. No adjournment must, unless by consent, be granted for a period longer than ten days, upon the application of either party, except upon condition that such party file an undertaking, in an amount fixed by the magistrate, with two sureties, to be approved by the magistrate, to the effect that they will pay to the opposite party the amount of any judgment which may be recovered against the party applying, not exceeding the sum specified in the undertaking. trials in magistrates’ courtsTrials in magistrates’ courts. Sec. 454. Issue defined, and the different kinds.—“Issue” defined. Issues arise upon the pleadings when a fact or conclusion of law is maintained Kinds.by the one party and is controverted by the other. They are of two kinds: 1. Of law; and, 2. Of fact. Sec. 455. Issue of law, how raised.—How raised.Issue of law. An issue of law arises upon a demurrer to the complaint or answer, or to some part thereof. Sec. 456. Issue of fact, how raised.—Of fact. An issue of fact arises— 1. Upon a material allegation in the complaint controverted by the answer; and, 2. Upon new matter in the answer, except an issue of law is joined thereon. Sec. 457. Issues, how tried.—How tried. Issues, both of law and of fact, must be tried by the court. Sec. 458. Either party failing to appear, trial may proceed at request of other party.—Failure of party to appear. If either party fails to appear at the time fixed for trial, the trial may proceed at the request of the adverse party. Sec. 459. Requiring exhibition of original instrument.—Exhibition of original instrument. When the cause of action or counterclaim arises upon an account or instrument for the payment of money only, the court, at any time before the trial, may, by an order under his hand, require the original to be exhibited to the inspection of, and a copy to be furnished to, the adverse party, at such time as may be fixed in the order; or, if 991such order is not obeyed, the account or instrument can not be giver in evidence. Sec. 460. Complaint, when accompanying instrument deemed genuine.—Complaint, when accompanying instrument deemed genuine. If the complaint of the plaintiff, or the answer of the defendant, contains a copy, or consists of the original of the writter obligation upon which the action is brought or the defense founded the genuineness and due execution of such instrument are deemed admitted, unless the answer denying the same is verified, or unless the plaintiff, within two days after the service on him of such answer, files with the magistrate an affidavit denying the same, and serves a copy thereof on the defendant. judgments (other than by default) in magistrates’ courts Sec. 461. Judgment by confession.— Judgments upon confessionJudgments (other than by default).By confession. may be entered up in either magistrate’s court specified in the confession. Sec. 462. Judgment of dismissal entered in certain cases without prejudice.—Dismissal without prejudice. Judgment that the action be dismissed, without prejudice to a new action, may be entered with costs, in the following cases: 1. When the plaintiff voluntarily dismisses the action before it is finally submitted; or fails to prosecute the action to judgment with reasonable diligence; provided a counterclaim has not been made, or affirmative relief sought by the cross-complaint or answer of the defendant; if a provisional remedy has been allowed, the undertaking must thereupon be delivered by the magistrate to the defendant who may have his action thereon; 2. When he fails to appear at the time specified in the summons, or at the time to which the action has been postponed, or within one hour thereafter; 3. When, after a demurrer to the complaint has been sustained, the plaintiff fails to amend it within the time allowed by the court; 4. When the action is brought in the wrong subdivision. Sec. 463. Entry of judgment of dismissal.— Judgment of dismissalEntry of. must be entered whenever the plaintiff fails to bring the action to trial within two years after the case is brought to an issue of law or fact, except where the parties have stipulated in writing that the time may be extended. Sec. 464. Entry of judgment in thirty days.— Judgment mustEntry within thirty days. be entered within thirty days after the submission of the case to the court. Sec. 465. Form of magistrate’s judgment; notice.— The judgmentForm of magistrate’s judgment. of a magistrate must be entered substantially in the form required in section 333, and where the defendant is subject to arrest and imprisonment thereon the fact must be stated in the judgment. No judgment shall have effect for any purpose until so entered. Notice of the rendition of judgment must be given to the partiesNotice. to the action in writing signed by the magistrate. Where any of the parties are represented by an attorney, notice shall be given to the attorney. Said notice shall be served by mail or personally, and shall be substantially in the form of the abstract of judgment required in section 469. When served by mail the magistrate shall deposit copies thereof in a sealed envelope in the post office not later than five days after the rendition of the judgment, addressed to each of the persons on whom notice is to be served at their places of residence, or place of business if on an attorney. When served personally said notice shall be served within five days after the 992rendition of the judgment. Entry of the date of mailing shall be made by the magistrate in his docket. Sec. 466. If the sum found due exceeds the jurisdiction of the magistrate, the excess may be remitted.—Excess remitted if sum found due exceeds magistrate’s jurisdiction. When the amount found due to either party exceeds the sum for which the magistrate is authorized to enter judgment, such party may remit the excess, and judgment may be rendered for the residue. Sec. 467. Offer to compromise before trial.—Offer to compromise before trial. If the defendant, at any time before the trial, offers, in writing, to allow judgment to be taken against him for a specified sum, the plaintiff may immediately have judgment therefor, with the costs then accrued; but if he does not accept such offer before the trial, and fails to recover in the action a sum in excess of the offer, he can not recover costs incurred after the offer, but costs must be adjudged against him, and, if he recovers, be deducted from his recovery. The offer and failure to accept it can not be given in evidence nor affect the recovery, otherwise than as to costs. Sec. 468. Costs may be included in the judgment.—Costs included in judgment. The magistrate must tax and include in the judgment the costs allowed by law to the prevailing party. Sec. 469. Abstract of judgment.—Abstract of judgment. The magistrate, on the demand of a party in whose favor judgment is rendered, must give him an abstract of the judgment in substantially the following form (filling blanks according to the facts) : Form.“Canal Zone, magistrate’s court, subdivision of ____, ____, plaintiff, v. ____, defendant. Judgment entered for plaintiff (or defendant) for $____, on the ____ day of ____.” “I certify that the foregoing is a correct abstract of a judgment rendered in said action in this court.” “____ ____, Magistrate.” “Date of abstract ____.” Sec. 470. Correction of clerical mistakes in judgment.—Correction of clerical mistakes. The magistrate shall have power upon motion of the injured party and notice to the adverse party to correct any clerical mistakes in his judgment as entered, so as to conform to the judgment ordered. Said magistrate shall have power to set aside any void judgment upon motion of either party to the action after notice to the adverse party, and thereupon said action shall be treated as if no judgment had been entered. executions from magistrates’ courtsExecutions from magistrates’ courts. Sec. 471. Execution may issue at any time with in five years.—May issue at any time within five years. Execution for the enforcement of a judgment of a magistrate’s court may be issued by the magistrate who entered the judgment, or his successor in office, on the application of the party entitled thereto, at any time within five years from the entry of judgment. Sec. 472. Stay of execution of judgment.—Stay of execution. The court, or the magistrate thereof, may stay the execution of any judgment, including any judgment in a case of forcible entry or unlawful detainer, for a period not exceeding ten days. Sec. 473. Contents of execution.—Contents of. The execution must be directed to the constable, and must be subscribed by the magistrate and bear date the day of its delivery to the officer. It must intelligibly refer to the judgment, by stating the names of the parties, and the name of the magistrate before whom, and of the subdivision where, and the time when it was rendered; the amount of judgment, if it be for money; and, if less than the whole is due, the true amount due thereon. It must contain, in like cases, similar directions to the 993constable, as are required by the provisions of chapter 12, of this*Ante*, p, 969. code, in an execution to the marshal. Sec. 474. Renewal of execution.— An execution may, at theRenewal of. request of the judgment creditor, be renewed before the expiration of the time fixed for its return, by the word “renewed ” written thereon, with the date thereof, and subscribed by the magistrate. Such renewal has the effect of an original issue, and may be repeated as often as necessary. If an execution is returned unsatisfied, another may be afterwards issued. Sec. 475. Duty of officer receiving execution.— The constableDuty of officer receiving. to whom the execution is directed must execute the same in the same manner as the marshal is required by the provisions of chapter 12*Ante*, p. 968. of this code, to proceed upon executions directed to him; and the constable, when the execution is directed to him, is vested for that purpose with all the powers of the marshal. Sec. 476. Proceedings supplementary to execution.— The sectionsProceedings supplementary to.*Ante*, p. 977. of this code, from 387 to 394, both inclusive, are applicable to magistrates’ courts, the word “constable ” being substituted, to that end, for the word “marshal,” and the word “magistrate ” for “judge.” If the judgment debtor does not reside in the subdivision wherein the judgment was entered, an abstract of the judgment, in the form prescribed by section 469, may be filed in the office of the magistrate of the subdivision wherein the defendant resides, and such magistrate may issue execution on such judgment, and may take and exercise such jurisdiction in proceedings supplemental to execution, as if such judgment were originally entered in his court. contempts in magistrates’ courtsContempts in magistrates’ courts. Sec. 477. What sections govern contempts.— Contempts inSections governing.*Post*, p. 1018. magistrates’ courts are governed by sections 634 to 647. dockets of magistratesDockets of magistrates. Sec. 418. Docket, what to contain.— Each magistrate must keepContents. a book, denominated a “docket,” in which he must enter: 1. The title of every action or proceeding. 2. The object of the action or proceeding; and if a sum of money be claimed, the amount thereof. 3. The date of the summons, and the time of its return; and if an order to arrest the defendant be made, or a writ of attachment be issued, a statement of the fact. 4. The time when the parties, or either of them, appear, or their nonappearance, if default be made; a minute of the pleadings and motions; if in writing, referring to them; if not in writing, a concise statement of the material parts of the pleading. 5. Every adjournment, stating on whose application and to what time. 6. The judgment of the court, specifying the costs included and the time when rendered. 7. The issuing of the execution, when issued and to whom; the renewals thereof, if any, and when made, and a statement of any money paid to the magistrate, when and by whom. 8. The receipt of a notice of appeal, if any be given, and of the appeal bond. Sec. 479. Entries therein prima facie evidence of the fact.—Entries, prima facie evidence of fact. The several particulars of the last section specified must be entered under the title of the action to which they relate, and (unless otherwise in this chapter provided) at the time when they occur. Such 994entries in a magistrate’s docket, or a transcript thereof, certified by the magistrate, or his successor in office, are prima facie evidence of the facts so stated. Sec. 480. An index to the docket must be kept.—Index must be kept. A magistrate must keep an alphabetical index to his docket, in which must be entered the names of the parties to each judgment, with a reference to the page of entry. The names of the plaintiffs must be entered in the index, in the alphabetical order of the first letter of the family name. Sec. 481. Dockets must be delivered by magistrate to his successor.—Delivery to successor. Every magistrate, upon the expiration of his term of office, must deposit with his successor his official dockets and all papers filed in his office, as well his own as those of his predecessors, or any other which may be in his custody to be kept as public records. general provisions relating to magistrates’ courtsGeneral provisions relating to magistrates’ courts. Sec. 482. Magistrates may issue subpoenas and final process to any part of the subdivision.—Subpoenas; final process. Magistrates may issue subpoenas in any action or proceeding in the courts held by them, and final process on any judgment recovered therein, to any part of the subdivision. Sec. 483. Blanks must be filled in all papers issued by a magistrate, except subpoenas.—Filling in blanks. The summons, execution, and every other paper made or issued by a magistrate, except a subpoena, must be issued without a blank left to be filled by another, otherwise it is void. Sec. 484. Magistrates to receive all moneys collected and pay the same to parties.—Receipt and payment of moneys. Magistrates must receive from the constables, all moneys collected on any process or order issued from their courts respectively, and must pay the same, and all moneys paid to them in their official capacity, over to the parties entitled or authorized to receive them, without delay. Sec. 485. In case of disability of magistrate, other magistrate may attend on his behalf.—Disability of magistrate; substitutions. In case of the sickness or other disability or necessary absence of a magistrate, the other magistrate may, at his request, attend in his behalf, and thereupon is vested with the power and may perform all the duties and issue all the papers or process of the absent magistrate. In case of a trial the proper entry of the proceedings before the attending magistrate, subscribed by him, must be made in the docket of the magistrate before whom the summons was returnable. If the case is adjourned, the magistrate before whom the summons was returnable may resume jurisdiction. Sec. 486. Magistrates may require security for costs.—Security for costs. Magistrates may in all cases require a deposit of money or an undertaking, as security for costs of court, before issuing a summons. Sec. 487. Deposit in lieu of undertaking.—Deposit in lieu of undertaking. In all civil cases arising in magistrates’ courts, wherein an undertaking is required as prescribed in this code, the plaintiff or defendant may deposit with said magistrate a sum of money in United States currency equal to the amount required by the said undertaking, which said sum of money shall be taken as security in place of said undertaking. Sec. 488. What provisions of code applicable to magistrates’ courts.—Code provisions applicable to magistrates’ courts. Magistrates’ courts being courts of limited jurisdiction, only those provisions of this code which are, in their nature, applicable to the organization, powers, and course of proceedings in magistrates’ courts, or which have been made applicable by special provisions in this chapter, are applicable to magistrates’ courts and the proceedings therein.995 CHAPTER 15.— APPEALS IN CIVIL ACTIONSAPPEALS IN CIVIL ACTIONS. review by judge of orders made out of court Sec. 489. Orders made out of court, without notice, may be reviewed by the judge.—Review of orders made out of court. An order made out of court, without notice to the adverse party, may be vacated or modified, without notice, by the judge who made it; or may be vacated or modified on notice, in the manner in which other motions are made. appeals to united states circuit court of appealsAppeals to U. S. Circuit Court of Appeals. Sec. 490. Appeals to circuit court of appeals, how governed.—How governed. Appeals from the district court to the United States Circuit Court of Appeals for the Fifth Circuit are governed by section 9 of the Panama Canal Act, as amended, and by § 1 of Act Apr. 11, 1928,Vol. 45, p. 422. C. 354, 45 Stat. 422. Cross Reference Time for making application for appeal, see United States Code, title 28, section 230. U. S. C., p. 896. appeals to district court Sec. 491. Appeals to district court.— Any party dissatisfied withAppeals to district court. the judgment rendered in a civil action in a magistrate’s court, may appeal therefrom to the district court, at any time within thirty days after notice of the rendition of the judgment. The appeal is taken by filing a notice of appeal with the magistrate, and serving a copy on the adverse party. The notice must state whether the appeal is taken from the whole or a part of the judgment, and if from a part, what part, and whether the appeal is taken on questions of law or fact or both. Sec. 492. Appeal on question of law.—On question of law. When a party appeals to the district court on a question of law alone, he must, within ten days after notice of the rendition of judgment, prepare a statement of the case and file the same with the magistrate. The statement must contain the grounds upon which the party intends to rely upon the appeal, and so much of the evidence, as may be necessary to explain the grounds, and no more. Within ten days after receiving notice that the statement is filed, the adverse party, if dissatisfied with the same, may file amendments. The proposed statement and amendments must be settled by the magistrate, and if no amendment be filed the original statements stand as adopted. The statement thus adopted or as settled by the magistrate, with a copy of the docket of the magistrate, and all motions filed with him by the parties, during the trial and the notice of appeal, may be used on the hearing of the appeal before the district court. Sec. 493. Appeal on questions of fact, or law and fact.— WhenOn questions of fact, or law and fact. a party appeals to the district court on questions of fact, or on questions of both law and fact, no statement need be made, but the action must be tried anew in the district court. Sec. 494. Transmission of papers to district court.— UponTransmission of papers to district court. receiving the notice of appeal, and on payment of the fees of the magistrate, payable on appeal and not included in the judgment, and filing an undertaking as required in the next section, and after settlement or adoption of statement, if any, the magistrate must, within five days, transmit to the clerk of the district court, if the appeal be on questions of law alone, a certified copy of his docket, the statement as admitted or as settled, the notice of appeal, and the undertaking filed; or, if the appeal be on questions of fact, or both law and fact, a certified copy of his docket, the pleadings, all notices, motions, and all other papers filed in the cause, the notice 996of appeal, and the undertaking filed; and the magistrate may be compelled by the district court, by an order entered upon motion, to transmit such papers, and may be fined for neglect or refusal to transmit the same. A certified copy of such order may be served on the magistrate by the party or his attorney. In the district court, either party may have the benefit of all legal objections made in the magistrate’s court. Sec. 495. Undertaking on appeal.—Undertaking on appeal. An appeal from a magistrate’s court is not effectual for any purpose, unless an undertaking be filed with two or more sureties in the sum of $25 for the payment of the costs on the appeal, or, if a stay of proceedings be claimed, in the sum of $25 plus a sum equal to the amount of the judgment, including costs, when the judgment is for the payment of money; or plus twice the value of the property including costs, when the judgment is for the recovery of specific personal property; and must be conditioned, when the action is for the recovery of money, that the appellant will pay the amount of the judgment appealed from, and all costs, if the appeal be withdrawn or dismissed, or the amount of any judgment and all costs that may be recovered against him in the action in the district court. When the action is for the recovery of or to enforce or foreclose a lien on specific personal property, the undertaking must be conditioned that the appellant will pay the judgment and costs appealed from, and obey the order of the court made therein, if the appeal be withdrawn or dismissed, or any judgment and costs that may be recovered against him in said action in the district court, and will obey any order made by the court therein. When the judgment appealed from directs the delivery of possession of real property, the execution of the same can not be stayed unless a written undertaking be executed on the part of the appellant, with two or more sureties, to the effect that during the possession of such property by the appellant, he will not commit, or suffer to be committed any waste thereon, and that if the appeal be dismissed or withdrawn, or the judgment affirmed, or judgment be recovered against him in the action in the district court, he will pay the value of the use and occupation of the property from the time of the appeal until the delivery of possession thereof; or that he will pay any judgment and costs that may be recovered against him in said action in the district court, not exceeding a sum to be fixed by the magistrate of the court from which the appeal is taken, and which sum must be specified in the undertaking. A deposit of the sum of $50 plus the amount of the judgment, including all cost appealed from, or plus the value of the property, including all costs, in actions for the recovery of specific personal property, with the magistrate, is equivalent to the filing of the undertaking, and in such cases the magistrate must transmit the money to the clerk of the district court to be by him paid out on the order of the court. Sec. 496. Filing of undertaking; exception to and justification of sureties.—Filing of undertaking; exception to and justification of sureties. The undertaking on appeal must be filed within five days after the filing of the notice of appeal, and notice of the filing of the undertaking must be given to the respondent. The adverse party may except to the sufficiency of the sureties within five days after the filing of the undertaking, and unless they or other sureties justify before the magistrate within five days thereafter, upon notice to the adverse party, to the amounts stated in their affidavits, the appeal must be regarded as if no such undertaking had been given.997 Sec. 497. Stay of proceedings on filing undertaking.— If anStay of proceedings. execution be issued on the filing of the undertaking staying proceedings, the magistrate must, by order, direct the officer to stay al proceedings on the same. Such officer must, upon payment of his fees for services rendered on the execution, thereupon relinquish all property levied upon and deliver the same to the judgment debtor together with all moneys collected from sales or otherwise. If his fees be not paid, the officer may retain so much of the property or proceeds thereof as may be necessary to pay the same. Sec. 498. Powers of district court on appeal.— Upon an appealPowers of district court on appeal. heard upon a statement of the case, the district court may review all orders affecting the judgment appealed from, and may set aside, or confirm, or modify any or all of the proceedings subsequent to and dependent upon such judgment, and may, if necessary or proper, order a new trial. When the action is tried anew, on appeal, the trial must be conducted in all respects as other trials in the district court. The provisions of this code as to changing the place of trial, and all the provisions as to trials in the district court, are applicable to trials on appeal in the district court. For a failure to prosecute an appeal, or unnecessary delay in bringing it to a hearing, the district court, after notice, may order the appeal to be dismissed, with costs; and if it appear to such court that the appeal was made solely for delay, it may add to the costs such damages as may be just, not exceeding 25 per cent of the judgment appealed from. Judgments rendered in the district court on appeal shall have the same force and effect and may be enforced in the same manner as judgments in actions commenced in the district court. Sec. 499. No appeal effective unless fees for filing are paid.—No appeal effective unless fees for filing paid. No appeal taken from a judgment rendered in a magistrate’s court in civil matters shall be effectual for any purpose whatever unless the appellant shall, at the time of filing the notice of appeal, pay to the magistrate, in addition to the fee payable to the magistrate on appeal, a docket fee of $5 for filing the appeal and for placing the action on the calendar in the district court. Upon transmitting the papers on appeal, the magistrate shall transmit to the clerk of the district court the sum thus deposited for filing the appeal in the district court and for placing the action on the calendar. No notice of appeal shall be filed unless the fees herein provided for are paid in accordance with the provisions of this section. Sec. 500. Dismissal of appeals from magistrate’s court where not brought to trial within one year.—Time limitation on appeal from magistrate’s court. No action heretofore or hereafter appealed from the magistrate’s court to the district court, shall be further prosecuted, and no further proceedings shall be had therein,, and all such actions heretofore, or hereafter appealed, must be dismissed by the court to which the same shall have been appealed, on its own motion, or on the motion of any party interested therein, whether named in the complaint as a party or not, where the appealing party fails to bring such appeal to trial within one year from the date of filing such appeal in said district court, unless such time be otherwise extended by a written stipulation by the parties to the action filed with the clerk of the district court to which the appeal is taken. Sec. 501. Papers returned on dismissal of appeal.—Papers returned on dismissal. Upon dismissal of the appeal the clerk of the district court shall return all the papers to the court from which the appeal was taken, and the magistrate of said court shall have jurisdiction the same as if no appeal had been taken.998 CHAPTER 16.— MISCELLANEOUS PROVISIONSMISCELLANEOUS PROVISIONS. proceedings against joint debtorsProceedings against joint debtors. Sec. 502. Parties not summoned in action on joint contract may be summoned after judgment.—Summons after judgment. When a judgment is recovered against one or more of several persons, jointly indebted upon an *Ante*, p. 925.obligation, by proceeding as provided in section 120, those who were not originally served with the summons, and did not appear to the action, may be summoned to show cause why they should not be bound by the judgment, in the same manner as though they had been originally served with the summons. Sec. 503. Summons in that case, what to contain, and how served.—Contents. The summons, as provided in the last section, must describe the judgment, and require the person summoned to show cause why he should not be bound by it, and must be served in the same manner, and returnable within the same time, as the original summons. It is not necessary to file a new complaint. Sec. 504. Affidavit to accompany summons.—Affidavit to accompany. The summons must be accompanied by an affidavit of the plaintiff, his agent, representative, or attorney, that the judgment, or some part thereof, remains unsatisfied, and must specify the amount due thereon. Sec. 505. Answer; what it may contain.—Answer; contents. Upon such summons, the defendant may answer within the time specified therein, denying the judgment, or setting up any defense which may have arisen subsequently; or he may deny his liability on the obligation upon which the judgment was recovered, by reason of any defense existing at the commencement of the action. Sec. 506. What constitute the pleadings in the case.—What constitute pleadings in the case. If the defendant, in his answer, denies the judgment, or sets up any defense which may have arisen subsequently, the summons, with the affidavit annexed, and the answer, constitute the written allegations in the case; if he denies his liability on the obligation upon which the judgment was recovered, a copy of the original complaint and judgment, the summons, with the affidavit annexed, and the answer, constitute such written allegations, subject to the right of the parties to amend their pleadings as in other cases. Sec. 507. Issues, how tried; verdict, what to be.—Trial of issues; verdict. The issues formed may be tried as in other cases; but when the defendant denies, in his answer, any liability on the obligation upon which the judgment was rendered, if a verdict be found or a decision rendered against him, it must be for not exceeding the amount remaining unsatisfied on such original judgment, with interest thereon. offer of defendant to compromiseOffer of defendant to compromise. Sec. 508. Proceedings on offer of the defendant to compromise after suit brought.—Proceedings on, after suit brought. The defendant may, at any time before the trial or judgment, serve upon the plaintiff an offer to allow judgment to be taken against him for the sum or property, or to the effect therein specified. If the plaintiff accept the offer, and give notice thereof within five days, he may file the offer, with proof of notice of acceptance, and the clerk must thereupon enter judgment accordingly. If the notice of acceptance be not given, the offer is to be deemed withdrawn, and can not be given in evidence upon the trial; and if the plaintiff fail to obtain a more favorable judgment, he can not recover costs, but must pay the defendant’s costs from the time of the offer.999 inspection of writingsInspection of writings. Sec. 509. A party may demand inspection and copy of a book, paper, and so forth.—May be demanded, etc. Any court in which an action is pending, or the judge thereof may, upon notice, order either party to give to the other, within a specified time, an inspection and copy, or permission to take a copy, of entries of accounts in any book, or of any document or paper in his possession, or under his control, containing evidence relating to the merits of the action, or the defense therein. If compliance with the order be refused, the court may exclude the entries of accounts of the book, or the document, or paper from being given in evidence, or if wanted as evidence by the party applying may presume them, or direct the jury to presume them, to be such as he alleges them to be; and the court may also punish the party refusing for a contempt. This section is not to be construed to prevent a party from compelling another to produce books, papers, or documents, when he is examined as a witness. motions and ordersMotions and orders. Sec. 510. Order and motion defined.— Every direction of a courtDefined. or judge, made or entered in writing, and not included in a judgment, is denominated an order. An application for an order is a motion. Sec. 511. Motions and orders, where made.—Where made. Motions must be made in the division, in which the action is pending. Orders made out of court may be made by the judge of the court in either division. Sec. 512. Notice of motion, when to be given.— When a writtenNotice. notice of a motion is necessary, it must be given five days before the time appointed for the hearing. Sec. 513. Order for payment of money, how enforced.— WheneverOrder for payment of money. an order for the payment of a sum of money is made by a court pursuant to the provisions of this code, it may be enforced by execution in the same manner as if it were a judgment. notices and filing and service of papersNotices, filing and service of papers. Sec. 514. Notices and papers, how served.— Notices must be inForm and contents. writing, and the notice of a motion, other than for a new trial, must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based. If any such paper hasService. not previously been served upon the party to be notified and was not filed by him, a copy of such paper must accompany the notice. Notices and other papers may be served upon the party or attorney in the manner prescribed in this subchapter, when not otherwise provided by this code. Sec. 515. Notices and papers, when and how served.— The serviceManner of service. may be personal, by delivery to the party or attorney on whom the service is required to be made, or it may be as follows: 1. If upon an attorney, it may be made during his absence fromOn attorney. his office, by leaving the notice or other papers with his clerk therein, or with a person having charge thereof; or when there is no person in the office, by leaving them between the hours of nine in the morning and five in the afternoon, in a conspicuous place in the office; or, if it is not open so as to admit of such service, then by leaving them at the attorney’s residence, with some person of not less than eighteen years of age, if his residence is in the same division with his office; and if his residence is not known, or is not in the same division with his office, or being in the same division it is not open, or there is not found thereat any person of not less than eighteen years of age, then 1000by putting the same, inclosed in a sealed envelope, into the post office directed to such attorney at his office, if known; otherwise to his residence, if known; and if neither his office nor his residence is known, then by delivering the same to the clerk of the court for the attorney; 2. On party. If upon a party, it may be made by leaving the notice or other paper at his residence, between the hours of eight in the morning and six in the evening, with some person of not less than eighteen years of age; if at the time of attempted service between the said hours no such person can be found at his residence, the same may be served by mail; and, if his residence is not known, then by delivering the same to the clerk of the court for such party. Sec. 516. Service by mail, when.—Service by mail, when. Service by mail may be made where the person making the service and the person on whom it is to be made reside or have their offices in different places between which there is a regular communication by mail. Sec. 517. Service by mail, how.—How. In case of service by mail, the notice or other paper must be deposited in the post office, in a sealed envelope addressed to the person on whom it is to be served, at his office or place of residence. The service is complete at the time of the deposit. Sec. 518. Appearance; notices after appearance.—Appearance of defendant. A defendant appears in an action when he answers, demurs, or gives the plaintiff written notice of his appearance, or when an attorney gives notice of Notice of subsequent proceedings.appearance for him. After appearance, a defendant or his attorney is entitled to notice of all subsequent proceedings of which notice is required to be given. But where a defendant has not appeared, service of notice or papers need not be made upon him unless he is imprisoned for want of bail. Sec. 519. Service on nonresidents.—Service on nonresidents. When a plaintiff or a defendant, who has appeared, resides out of the Canal Zone, and has no attorney in the action or proceeding, the service may be made on the clerk for him. But in all cases where a party has an attorney in the action or proceeding, the service of papers, when required, must be upon the attorney instead of the party, except service of subpoenas, of writs, and other process issued in the suit, and of papers to bring him into contempt. If the sole attorney for a party is removed or suspended from practice, then the party has no attorney within the meaning of this section. If his sole attorney has no known office in the Canal Zone, notices and papers may be served by leaving a copy thereof with the clerk of the court, unless such attorney shall have filed in the cause an address of a place at which notices and papers may be served on him, in which event they may be served at such place. Sec. 520. Preceding provisions not to apply to proceeding to bring party in to contempt.—Preceding provisions not to apply in contempt proceedings. The foregoing provisions of this subchapter do not apply to the service of a summons or other process, or of any paper to bring a party into contempt. general provisionsGeneral provisions. Sec. 521. Lost papers, how supplied.—Lost papers, how supplied. If an original pleading or paper be lost, the court may authorize a copy thereof to be filed and used instead of the original. Sec. 522. Papers without the title of the action, or with defective title, may be valid.—Title of action not necessary on papers. An affidavit, notice, or other paper, without the title of the action or proceeding in which it is made, or with a defective title, is as valid and effectual for any purpose as if duly entitled, if it intelligibly refer to such action or proceeding.1001 Sec. 523. Successive actions on the same contract, etc.— SuccessiveSuccessive actions on same contract, etc. actions may be maintained upon the same contract or transaction, whenever, after the former action, a new cause of action arises therefrom. Sec. 524. Severance and consolidation.— An action may beSeverance and consolidation of actions. severed and actions may be consolidated, in the discretion of the court, whenever it can be done without prejudice to a substantial right. Sec. 525. Actions, when deemed pending.— An action is deemedAction, when deemed pending. to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied. Sec. 526. Actions to determine adverse claims, and by sureties.—Action by adverse claimant; surety. An action may be brought by one person against another for the purpose of determining an adverse claim, which the latter makes against the former for money or property upon an alleged obligation; and also against two or more persons, for the purpose of compelling one to satisfy a debt due to the other, for which plaintiff is bound as a surety. Sec. 527. Testimony; who may take down.— On the trial of anRecording of testimony. action in the district court, if there is no shorthand reporter of the court in attendance, the testimony may be taken down in writing by anyone agreed to by the parties. Sec. 528. The clerk shall keep minute books.— The clerk shallClerk to keep minutes. in person or by assistant attend all sessions of the court and keep minute books, in which he shall record, under the direction of the judge, all the proceedings of the court. Sec. 529. Two of three referees, and so forth, may do any act.—Authority of two of three referees to act. When there are three referees, all must meet, but two of them may do any act which might be done by all. Sec. 530. Extension of time within which an act is to be done; not to exceed thirty days; exception.—Extension of time for filing pleadings, etc. When an act to be done, as provided in this code, relates to the pleadings in the action, or the undertakings to be filed, or the justifications of sureties, or the preparation of bills of exceptions, or of amendments thereto, or to the service of notices other than of appeal, the time allowed by this code, unless otherwise expressly provided, may be extended, upon good cause shown, by the judge of the district court; but such extension shall not exceed thirty days, without the consent of the adverse party. Sec. 531. Action against officer for official acts.— If an actionAction against office: for official acts. is brought against any officer or person for an act for the doing of which he had theretofore received any valid bond or covenant of indemnity, and he gives seasonable notice thereof in writing to the persons who executed such bond or covenant, and permits them to conduct the defense of such action, the judgment recovered therein is conclusive evidence against the persons so notified; and the court may, on motion of the defendant, upon notice of five days, and upon proof of such bond or covenant, and of such notice and permission, enter judgment against them for the amount so recovered and costs. Sec. 532. Corporations may be come sureties on undertakings and bonds.—Corporations as sureties. In all cases where an undertaking or bond, with any number of sureties, is authorized or required by any provision of this code, or of any law of the Canal Zone, any corporation with a paid-up capital of not less than $100,000, incorporated under the laws of any State of the United States for the purpose of making, guaranteeing, or becoming a surety upon bonds or undertakings required or authorized by law, or which, by the laws of the State 1002where it was incorporated has such power, and which shall have complied with all the requirements of the law of the Canal Zone regulating the admission of these corporations to transact such business in the Canal Zone, may become and shall be accepted as security or as sole and sufficient surety upon such undertaking or bond, and such corporate surety shall be subject to all the liabilities and entitled to all the rights of natural persons’ sureties. Sec. 533. Undertakings mentioned in this code, requisites of.—Requisites of undertakings. In any case where an undertaking or bond is authorized or required by any law of the Canal Zone, the officer taking the same must, except in the case of such a corporation as is mentioned in the next preceding section, require the sureties to accompany it with an affidavit that they are each residents of the Canal Zone, and are each worth the sum specified in the undertaking or bond, over and above all their just debts and liabilities, exclusive of property exempt from execution; but when the amount specified in the undertaking or bond exceeds $3,000, and there are more than two sureties thereon, they may state in their affidavits that they are severally worth amounts less than the amount specified in the undertaking or bond, if the whole amount is equivalent to that of two sufficient sureties. Any corporation such as is mentioned in the next preceding section may become sole surety on such bond. New undertaking.New undertaking.—Whenever an undertaking has been given and approved in any action or proceeding, and it is thereafter made to appear to the satisfaction of the court that any surety upon such undertaking has for any reason become insufficient, the court may, upon notice, order the giving of a new undertaking, with sufficient sureties, in lieu of such insufficient undertaking. In case such new undertaking so required shall not be given within the time required by such order, or in case the sureties thereon fail to justify thereon when required, all rights obtained by the filing of such original undertaking shall immediately cease. Sec. 534. Justification by corporate security on bonds.—Justification by corporate surety. Whenever the surety on a bond or undertaking authorized or required by any law of the Canal Zone is a foreign corporation, authorized to become surety on bonds or undertakings in the Canal Zone, and exception is taken to the sufficiency of such surety as required by law, such corporate surety may justify on such bond or undertaking as follows: Procedure.Procedure.—Any agent, attorney in fact, or officer of such corporation shall submit to the court, judge, officer, board, or other person before whom the justification is to be made: First. Production of power of attorney. The original, or a certified copy of, the power of attorney, by-laws or other instrument showing the authority of the person or persons who executed the bond or undertaking to execute the same; Second. Certificate of authority. A certified copy of the certificate of authority, showing that the corporation is authorized to transact business; Third. Continuation of such authority. A certificate from the executive secretary showing that the said certificate of authority has not been surrendered, revoked, canceled, annulled, or suspended, or in the event that it has been, that renewed authority to act under such certificate has been granted; Fourth. Financial statement. A financial statement showing the assets and liabilities of such corporation at the end of the quarter calendar year prior to forty-five days next preceding the date of the execution of the bond or undertaking; such financial statement must be verified under oath by the president, or a vice president and attested by the secretary or an assistant secretary of such corporation.1003 Justification when complete.—Upon complying with the foregoingJustification, when complete. provisions and it appearing that the bond or undertaking was duly executed, that the corporation is authorized to transact business in the Canal Zone, and that its assets exceed its liabilities in an amount equal to or in excess of the amount of the bond or undertaking, the justification of the surety shall be complete and it shall be accepted as the sole and sufficient surety on the bond or undertaking. Sec. 535. Clerk may accept cash deposit in lieu of bond.— In allCash deposit in lieu of bond. proceedings in which a bond is required the clerk of the district court may accept a cash deposit in the sum of the bond. Where a cash bond is given, such moneys or any part thereof may be withdrawn only upon order of the court. Sec. 536. Clerk to copy certain bonds in appropriate book.—Bonds to be copied in appropriate book. All bonds of every nature and description required in civil actions or proceedings, except bonds for arrest or appeal from inferior courts, shall be copied in full by the clerk in an appropriate book, and such copy, duly authenticated by him, shall have the force and effect of the original. Sec. 536a. Clerk to be ex officio registrar of property.— TheClerk ex officio registrar of property. clerk of the district court is ex officio registrar of property of the Canal Zone, and the assistant clerks shall have and exercise like powers in the name of their principal. The clerk and his assistants shall have the duties of registrar so as to give constructive notice in all cases where provision is made for such notice by law. They shall keep proper books of record, which shall at all reasonable hours be open to the public. Sec. 537. Government not required to give bonds when a party.—Government not required to give bond. In any civil action or proceeding wherein the Government is a party plaintiff, or any government officer, in his official capacity or on behalf of the Government, is a party plaintiff or defendant, no bond, written undertaking, or security can be required of the Government, or any officer thereof; but on complying with the other provisions of this code the Government, or any government officer acting in his official capacity, have the same rights, remedies, and benefits as if the bond, undertaking, or security were given and approved as required by this code. Sec. 538. Surety on appeal substituted to rights of judgment creditor.—Subrogation of surety on appeal bond. Whenever any surety on an undertaking on appeal, executed to stay proceedings upon a money judgment, pays the judgment, either with or without action, after its affirmation by the appellate court, he is substituted to the rights of the judgment creditor, and is entitled to control, enforce, and satisfy such judgment, in all respects as if he had recovered the same. declaratory relief Sec. 539. Declaratory relief.— Any person interested under aDeclaratory relief. deed, will or other written instrument, or under a contract, or who desires a declaration of his rights or duties with respect to another or in respect to, in, over or upon property, may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an action in the district court for a declaration of his rights and duties in the premises, including a determination of any question of construction or validity arising under such instrument or contract. He may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of such rights or duties, whether or not further relief is or could be claimed at the time. The declaration may be either affirmative or negative in form and effect, and such declaration 1004shall have the force of a final judgment. Such declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought. Sec. 540. Power not exercised when.—Powers not exercised, when. The court may refuse to exercise the power granted by this subchapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances. Sec. 541. Other remedies not affected.—Other remedies not affected. The remedies provided by this sub-chapter are cumulative, and shall not be construed as restricting any remedy, provisional or otherwise, provided by law for the benefit of any party to such action, and no judgment under this sub-chapter shall preclude any party from obtaining additional relief based upon the same facts. CHAPTER 17.— FEES; COSTS AND SECURITY FOR COSTS IN THE DISTRICT AND MAGISTRATES’ COURTSFEES, COSTS, ETC., DISTRICT AND MAGISTRATES’ COURTS. fees in generalFees in general. Sec. 542. Lawful to demand specific fees only.—Specific fees only, to be demanded. It shall be lawful for the clerk of the district court, referees, and commissioners appointed by the district court, the marshal, magistrates, constables, and other officers and persons hereinafter mentioned, together with their assistants and deputies, to demand, and receive, the hereinafter mentioned fees and no more; but all fees collected by officers drawing a regular salary or fixed compensation from the Government shall be paid over to the Collector of the Panama Canal. Sec. 543. Docket fees and other deposits for services of clerk or magistrate.—Docket fees, etc., for services of clerk or magistrate. The United States of America, the Government of the Canal Zone, and the Panama Canal, or any officer thereof who sues or is sued in his official capacity, shall not be required to pay any costs for the bringing or defending of an action. Every other plaintiff in a civil action commenced in the district court, except as hereinafter designated, shall deposit with the clerk or assistant clerk thereof a docket fee of $8 upon the filing of the complaint. An intervenor who is allowed to intervene therein shall deposit $5 upon the filing of the petition of intervention.. A plaintiff in a habeas corpus, mandamus, certiorari, or prohibition proceeding, or any other special proceeding, except a probate or guardianship proceeding, shall deposit $3 upon the filing of the complaint. Such sum or sums so deposited shall be full compensation for the clerk or assistant clerk for all services performed in any such action or proceeding, except lawful copy fees for furnishing copies of any paper or record therein. Any other plaintiff in a civil action commenced in a magistrate’s court at the time of commencing the action shall deposit a docket fee of $3. An intervenor who intervenes therein shall deposit a fee of $1 at the time of appearance. Such sum or sums so deposited shall be full compensation for all services of the magistrate in said action; except that lawful copy fees may be charged and collected for furnishing copies of any paper or record therein. Sec. 544. Jury fee.—Jury fees. Any party to a civil case in the district court, who demands a trial by jury, shall accompany said demand with a deposit of $10 as a jury fee; and unless such deposit is made, the case shall be tried without the intervention of a jury. Sec. 545. Fees in probate and guardianship matters.—Probate, etc., fees. The fees for the services of the clerk or assistant clerk of the district court in probate and guardianship matters shall be as follows: Where the value of the estate does not exceed $1,000, $3; where the value of 1005the estate exceeds $1,000, and does not exceed $5,000, $5; where the value of the estate exceeds $5,000, $8. Such fees shall be in full of the services of the clerk or assistant clerk in such proceedings, except that they shall be entitled to charge lawful fees for furnishing copies of papers and records therein. The judge of the district court shall have the power, in his discretion, in any case where the estate is small and the circumstances warrant, to waive the payment of any fee to the clerk or assistant clerk for services to be performed in such proceedings. Sec. 546. Clerk of district court; fees for various services; copies of papers and records.—Clerk, district court, fees of. For certifying the official act of a magistrate or other certificate, with seal, 25 cents. For certified copies of any paper, record, decree, judgment, orCertifications, etc. entry, for each one hundred words or fraction thereof, 10 cents, and the further sum of 25 cents for each certification: *Provided*, *however*,*Proviso*.When copies furnished by applicant. That where copies are furnished by those desiring the same, the certification fee alone shall be collected. For all copies of records, or bills of exception, or testimony, or ofCopies of records, etc., for transmission to circuit court of appeals. other documents for transmission to the circuit court of appeals, 10 cents for each one hundred words or fraction thereof, and the further sum of 25 cents for each certification thereof: *Provided*, *however*,*Proviso*.When copies furnished by applicant. That where copies are furnished by those desiring the same, the certification fee alone shall be collected. Sec. 547. Marshal, constables, and other persons serving process.—Fees for service of process. For executing process, preliminary and final judgments, and decrees of any court, for each mile of travel in the service of process going one way, reckoned from the place of service to the place to which the process is returnable, 10 cents; for serving an attachment against the property of the defendant, $1, together with a reasonable allowance to be made by the court for expenses, if any, necessarily incurred in caring for the property attached; for arresting each defendant, 50 cents; for serving summons and copy of complaint for each defendant, $1; but in special proceedings, testamentary or administrative, where several members of a family residing at the same place are defendants the fee for each defendant shall be 50 cents; for serving subpoenas, for each witness served, 25 cents besides travel fees; for each copy of any process necessarily deposited in the office of Registrar of Property, 10 cents for each one hundred words, but not less than 50 cents in each case; for taking bonds or other instruments of indemnity or security, for each, 25 cents; for executing a writ of process to put a person in possession of real estate, $1; for attending with prisoner on habeas corpus trial, each day, $1; for transporting each prisoner on habeas corpus or otherwise, when required, for every mile going and returning, 10 cents; for advertising sale, besides printer’s charge, 50 cents; for taking inventory of goods levied upon, to be charged only when the inventory is necessary, a sum fixed by the court not exceeding the actual reasonable cost of the same to be shown by vouchers; for levying an execution on property, $1. On all money collected by him by order or any decree, execution,For collection of money. attachment, or any other process, the following sums, to wit: On the first $100 or less, 2 per centum. On the second $100, 1½ Per centum; on all sums between $200 and $1,000, 1 per centum; on all sums in excess of $1,000, ½ per centum. Sec. 548. Same; attempts to serve process.— The following feesFor attempted service. shall be charged for return on and mileage in attempts to serve 1006process, or any order, judgment, or decree of any court in civil cases:
(a)For each return, $1.
(b)For mileage going one way in attempting to serve or execute any process, order, judgment, or decree of any court, for each mile traveled one way, 10 cents.
(c)No such fees shall be charged against the United States or The Panama Canal or an officer thereof sued in his official capacity. Sec. 549. Magistrates.—Magistrates’ fees. For all services of a magistrate in a civil case, the fees prescribed in section 543; for administering oath upon any affidavit or other paper with certificate of oath, 20 cents; for an appeal, with proceedings taking bond, making and forwarding transcript of record, 75 cents; for each certificate not otherwise provided for, 15 cents; for writing and certifying deposition, including the administration of oath to the witness, 10 cents for each one hundred words in the deposition and certificate; for certified copies of any record of proceeding of which any person is entitled to receive a copy, 10 cents for each one hundred words. Account of fees to be rendered.A magistrate upon receiving payment of fees allowed to him by law, must render to the person or persons so paying an itemized account thereof. Sec. 550. Witness fees.—Witness fees, district court. Witnesses in the district court, either in actions or special proceedings, shall be entitled to $1 per day and 10 cents for each mile going to the place of trial from their homes by the nearest route of usual travel; but mileage shall be charged but once in the action unless witness is compelled to attend more than one term of court, nor shall any allowance be made for mileage except that traveled within the Canal Zone. Magistrates’, etc., courts.Witnesses before magistrates’ courts and other inferior tribunals shall be allowed 50 cents per day and the travel fees above provided and no more. Allowance of, on affidavit of witness.Fees to which witness may be entitled in a civil action shall be allowed, on the affidavit of the witness, stating the number of days he has attended, the amount of mileage to which he is entitled, to be taken and preserved by the clerk of the court, magistrate, or other officer before whom the witness was called to testify, and a certificate of the allowance shall be given to the witness. But on final taxation of costs the truth of the affidavit may be contested and this allowance may be set aside in whole or in part as the facts require. A witness shall not be allowed compensation for his attendance in more than one case or on more than one side of the same case at the same time, but may elect in which of several cases or on which side of the case, when he is summoned by both sides, to claim his attendance; a person who is compelled to attend court on other business shall not be paid as a witness. Sec. 551. Referee’s fees.—Referee’s fees. The fees of referees are $5 to each for every day spent in the business of the reference; but the parties may agree, in writing, upon any other rate of compensation, and thereupon such rates shall be allowed. Sec. 552. Other fees to be fixed by general rules of the district court.—Additional fees. If it shall appear that services are required of clerks of court, marshals or officers of the court, other than those for which specific fees have been provided in this subchapter, the district judge shall by general rules provide for a scale of fees for such other services, which scale shall be proportionate to the fees in this subchapter provided for similar services.1007 costsCosts. Sec. 553. Each party responsible for his costs; fees for service of process payable in advance.—Responsibility for. Each party to any civil suit instituted in the district court or any magistrate’s court of the Canal Zone shall be responsible for the costs incurred by him in such suit, and the marshal, constable or other officer, authorized to execute any process in such cases, shall not execute the same unless the fees allowed by law for the service of such process, shall be paid in advance by the party seeking such process, unless such party to the suit is entitled to prosecute the same in forma pauperis, as provided in section 554. Sec. 554. Prosecution or defense of suits in forma pauperis.—Suits in forma pauperis. Any citizen of the United States, entitled to commence any suit or action in any court in the Canal Zone, may commence and prosecute or defend to conclusion any such suit or action, without being required to prepay fees or costs or give security therefor, before or after bringing such suit or action, upon filing in the said court a statement, under oath, in writing, that because of his poverty he is unable to pay the costs of said suit or action, or to give security for same, and that he believes that he is entitled to the redress he seeks by such suit or action, and setting forth the nature of the said cause of action. The opposing party in the suit, the clerk of the district court, orRight to contest inability to pay costs. his assistant, or the magistrate, as the case may be, may contest the inability of the party to pay costs or his inability to furnish security for same; and the contest shall be heard at such time as the court or magistrate may determine. If no contest is made upon the affidavit, or if the same is admittedIf no contest, court to issue, etc., process, etc. by the court or magistrate after the contest, it shall be the duty of the officers of the court thereafter to issue and serve all processes and perform all duties on behalf of such party as in other cases. Sec. 555. Costs ordinarily allowed to prevailing party.— CostsAllowance of costs to prevailing party. shall ordinarily be allowed to the prevailing party as a matter of course, but the court shall have power for special reasons to adjudge that either party shall pay the costs of an action, or that the same be divided as may be equitable. Sec. 556. Bill of costs and taxing of costs in district court.—Bill of costs and taxing of. The party in whose favor judgment is rendered in the district court and who claims his costs, must within five days after the verdict or notice of the decision of the court deliver to the clerk and to the adverse party, or his attorney, a memorandum of the items of his costs in the action or proceeding, which memorandum must be verified by the oath of the party, or his attorney or agent, or by the clerk of his attorney, stating that to the best of his knowledge and belief the items are correct and that the disbursements have been necessarily incurred in the action or proceeding. A party dissatisfied with the costs so claimed, may, within five days after notice of filing of the bill of costs, file a motion to have the same taxed by the court or the judge thereof in said action. Sec. 557. What costs may be recovered in district court.— In anCosts recoverable in district court. action pending in the district court, the prevailing party may recover the following costs and no others: For each witness necessarily produced by him, for each day’s necessary attendance of such witness at the trial, the witness’ lawful fees. For each deposition lawfully taken by him, and produced in evidence, $2.50.1008 For original documents, deeds, or papers of any kind produced by him, nothing. For official copies of such documents, deeds, or papers, the lawful fees necessarily paid for obtaining such copies. The lawful fees paid by him for the service of any process in the action, and all lawful clerk’s fees paid by him. Sec. 558. Magistrate to tax costs in his court.—Magistrate to tax costs in his court. The costs in the magistrate’s court shall be taxed by the magistrate without the filing and service of a memorandum of costs as provided in section 556, and upon such information as to magistrate and constable costs and other costs and fees and mileage of witnesses as the magistrate may require. Sec. 559. What costs may be recovered in magistrates’ courts.—Costs recoverable in magistrates’ courts. In an action pending before a magistrate, the plaintiff may recover the following costs, and no others : For each witness produced by him, for each day’s necessary attendance at the trial, the witness’ lawful fees. For each deposition lawfully taken by him and produced in evidence, $2.50. For original documents, deeds, or papers of any kind produced by him, nothing. For official copies of such documents, deeds, or papers, the lawful fees necessarily paid for obtaining such copies. The lawful fees paid by him for service of the summons and other process in the action. The lawful docket fee paid by him. If the judgment is for the defendant, he may recover the following costs, and no others: For each witness produced by him, for each day’s necessary attendance at the trial, the witness’ lawful fees. For each deposition lawfully taken by him and produced in evidence, $2.50. For original documents, deeds, or papers of any kind produced by him, nothing. For official copies of such deeds or papers, the lawful fees necessarily paid for obtaining such copies. The lawful fees paid by him for service of any process in the action. Sec. 560. Continuance, costs may be imposed as condition of.—Costs on continuance. When an application is made to a court or referee to, postpone a trial, the payment of costs occasioned by the postponement may be imposed, in the discretion of the court or referee, as a condition of granting the same. Sec. 561. When action dismissed for want of jurisdiction.—When action dismissed for want of jurisdiction. If an action is dismissed for want of jurisdiction, courts nevertheless shall have power to render judgment for costs as justice may require. security for costsSecurity for costs. Sec. 562. Plaintiff may be required to give.—Plaintiff may be required to give. The plaintiff in any civil suit or proceedings in the district court or in either of the magistrates’ courts may be ruled to give security for the costs upon motion of the opposing party or of any officer of the court interested in the costs accruing in said suit; and it shall be the duty of the court to require the plaintiff to give such security for costs within a reasonable time thereafter and not later than ten days after the motion is presented to the court; and if the plaintiff shall fail to comply with the order of the court within the time prescribed by the court or judge thereof, the suit shall be dismissed.1009 Cross Reference See also section 568.11 So in original Sec. 563. New or additional under taking by plaintiff; form of security.—Additional undertakings by plaintiff. A new or additional undertaking may be ordered, within such time as the court or judge may prescribe, upon proof that the original undertaking is insufficient security, and failure on the part of the plaintiff to comply with the order of the court, or judge, within the time prescribed, shall cause the dismissal of the suit. The security for costs required by this subchapter may consist ofNature of. a money deposit, bond of a surety company, or cost bond with two or more good and sufficient sureties; the form of such security to be determined by the judge or magistrate of the court before whom the proceedings are pending. If personal security is furnished, the sureties must be residents of the Canal Zone, and no officer of the court or attorney practicing before the court shall be accepted as surety. Sec. 564. Bonds, what to authorize.— All bonds given as securityBonds to authorize judgment for costs. for costs shall authorize judgment against all of the obligors of the said bonds, jointly and severally, for such costs, to be entered in the final judgment of the case or special proceedings. Sec. 565. Security not required from government.— No securitySecurity not required from Government. for costs shall be required of the United States, the Panama Canal, or any of its dependencies or from the public administrator of the Panama Canal. Sec. 566. Security by intervenor or counter claimant.— TheOf intervenor or counterclaimant. provisions of this subchapter, relating to security for costs, shall apply to an intervenor; and shall also apply to a defendant who seeks a judgment against the plaintiff on a counterclaim, after the defendant shall have discontinued his suit. Sec. 567. Costs secured by attachment or other bond.— WhenSecurity by attachment or other bond. the costs are secured by the provisions of an attachment or other bond, filed by the party required to give satisfactory security for costs, no further security shall be required. CHAPTER 18.— WRITS OF REVIEW, MANDATE, AND PROHIBITIONWRITS OF REVIEW, MANDATE, AND PROHIBITION. writ of review Sec. 569. Writ of review defined.— The writ of certiorari may be“Writ of review,” defined. denominated the writ of review. Sec. 570. When granted by district court.— A writ of reviewWhen granted. may be granted by the district court, when an inferior tribunal, board, or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board, or officer, and there is no appeal, nor, in the judgment of the court, any plain, speedy, and adequate remedy. Sec. 571. Application for writ, how made.— The applicationApplication for. must be made on the verified petition of the party beneficially interested, and the court may require a notice of the application to be given to the adverse party, or may grant an order to show cause why it should not be allowed, or may grant the writ without notice. Sec. 572. The writ to be directed to the inferior tribunal, etc.—Direction of. The writ may be directed to the inferior tribunal, board, or officer, or to any other person having the custody of the record or proceedings to be certified. When directed to a tribunal, the clerk, if there be one, must return the writ with the transcript required. Sec. 573. Contents of the writ.— The writ of review must commandContents. the party to whom it is directed to certify fully to the district 1010court, at a specified time and place, a transcript of the record and proceedings (describing or referring to them with convenient certainty), that the same may be reviewed by the court; and requiring the party, in the meantime, to desist from further proceedings in the matter to be reviewed. Sec. 574. Proceedings in inferior court may be stayed, or not.—Stay of proceedings. If a stay of proceedings be not intended, the words requiring the stay must be omitted from the writ; these words may be inserted or omitted, in the sound discretion of the court, but if omitted, the power of the inferior court or officer is not suspended or the proceedings stayed. Sec. 575. Service of the writ.—Service. The writ must be served in the same manner as a summons in civil action, except when otherwise expressly directed by the court. Sec. 576. The review under the writ, extent of.—Extent of review under. The review upon this writ can not be extended further than to determine whether the inferior tribunal, board, or officer has regularly pursued the authority of such tribunal, board, or officer. Sec. 577. A defective return of the writ may be perfected; hearing and judgment.—Perfection of return of. If the return of the writ be defective, the Hearing and judgment.court may order a further return to be made. When a full return has been made, the court must hear the parties, or such of them as may attend for that purpose, and may thereupon give judgment, either affirming or annulling, or modifying the proceedings below. Sec. 578. Copy of the judgment must be sent to the inferior tribunal.—Copy of judgment to inferior court. A copy of the judgment, signed by the clerk, must be transmitted to the inferior tribunal, board, or officer having the custody of the record or proceeding certified up. Sec. 579. Judgment-rolls.—Judgment-rolls. A copy of the judgment, signed by the clerk, entered upon or attached to the writ and return, constitute the judgment-roll. writ of mandateWrit of mandate. Sec. 580. Mandate defined.—Mandamus denominated as. The writ of mandamus may be denominated the writ of mandate. Sec. 581. When is sued by district court.—Purpose for which issued. It may be issued by the district court, to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board, or person. Sec. 582. Writ, when and up on what to issue.—When to issue. The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be issued upon the verified petition of the party beneficially interested. Sec. 583. Writ may be either alternative or peremptory; substance.—Alternative or peremptory. The writ may be either alternative or peremptory. The alternative writ must command the party to whom it is directed immediately after the receipt of the writ, or at some other specified time, to do the act required to be performed, or to show cause before the court at a specified time and place why he has not done so. The peremptory writ must be in a similar form, except that the words requiring the party to show cause why he has not done as commanded must be omitted and a return-day inserted. Sec. 584. If the application be without notice, the alternative writ may issue, otherwise, the peremptory; notice and default.—Effect of notice. When the application to the court is made without notice to the adverse party, and the writ is allowed, the alternative must be first 1011issued; but if the application is upon due notice and the writ is allowed, the peremptory may be issued in the first instance. With the alternative writ and also with any notice of an intention to apply for the writ, there must be served on each person against whom the writ is sought a copy of the petition. The notice of the application, when given, must be at least ten days. The writ can not be granted by default. The case must be heard by the court, whether the adverse party appears or not. Sec. 585. The adverse party may answer under oath.— On theAnswer under oath. return of the alternative, or the day on which the application for the writ is noticed, the party on whom the writ or notice has been served may answer the petition under oath, in the same manner as an answer to a complaint in a civil action. Sec. 586. Applicant not precluded by answer from objection to its sufficiency.—Applicant not precluded thereby from objection to sufficiency of answer. On the trial, the applicant is not precluded by the answer from any valid objection to its sufficiency, and may countervail it by proof either in direct denial or by way of avoidance. Sec. 587. Hearings by court.— If no answer be made, the case mustHearing. be heard on the papers of the applicant. Sec. 588. Recovery of damages by applicant.— If judgment beRecovery of damages. given for the applicant, he may recover the damages which he has sustained as may be determined by the court or referee, upon a reference to be ordered, together with costs; and for such damages and costs an execution may issue; and a peremptory mandate must also be awarded without delay. Sec. 589. Service of the writ.— The writ must be served in theService of. same manner as a summons in a civil action, except when otherwise expressly directed by order of the court. Service upon a majority of the members of any board or body, is service upon the board or body, whether at the time of the service the board or body was in session or not. Sec. 590. Penalty for disobedience to the writ.— When a peremptoryPenalty for disobedience to. mandate has been issued and directed to any inferior tribunal, corporation, board, or person, if it appear to the court that any member of such tribunal, corporation, or board, or such person upon whom the writ has been personally served, has, without just excuse, refused or neglected to obey the same, the court may, upon motion, impose a fine not exceeding $1,000. In case of persistence in a refusal of obedience, the court may order the party to be imprisoned until the writ is obeyed, and may make any orders necessary and proper for the complete enforcement of the writ. writ of prohibitionWrit of prohibition. Sec. 591. Writ of prohibition defined.— The writ of prohibitionDefined. is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board, or person exercising judicial functions, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person. Sec. 592. Where and when writ issued.— It may be issued by theIssue of. district court, to an inferior tribunal or to a corporation, board, or person, in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law. It is issued upon the verified petition of the person beneficially interested. Sec. 593. Writ must be either alternative or peremptory; form of.—Either alternative or peremptory. The writ must be either alternative or peremptory. The alternative writ must command the party to whom it is directed to desist or refrain from further proceedings in the action or matter specified therein, until the further order of the district court, and to show 1012cause before such court, at a specified time and place, why such party should not be absolutely restrained from any further proceedings in such action or matter. The peremptory writ must be in a similar form, except that the words requiring the party to show cause why he should not be absolutely restrained, and so forth, must be omitted, and a return day inserted. Sec. 594. Certain provisions of the preceding subchapter applicable.—Provisions governing.*Ante*, p. 1010. The provisions of sections 584 to 590 apply to this proceeding. issuance, return, and hearingIssuance, return, and hearing. Sec. 595. Writs of review, mandate, and prohibition; issuance, return, and hearing.—Writs of review, mandate, and prohibition. Writs of review, mandate, and prohibition issued by the district court, may, in the discretion of the court, be made returnable, and a hearing thereon be had at any time. rules of practiceRules of practice. Sec. 596. Certain preceding chapters applicable.—*Ante*, pp. 916–998, to govern. Except as otherwise provided in this chapter, the provisions of chapters 4 to 16 of this code are applicable to and constitute the rules of practice in the proceedings mentioned in this chapter. CHAPTER 19.— SUMMARY PROCEEDINGSSUMMARY PROCEEDINGS. confession of judgment without actionConfession of judgment without action. Sec. 597. Judgment may be confessed for debt due or contingent liability.—For debt due or contingent liability. A judgment by confession may be entered without action, either for money due or to become due, or to secure any person against contingent liability on behalf of the defendant, or both, in the manner prescribed by this subchapter. Such judgment may be entered in any court having jurisdiction for like amounts. Sec. 598. Statement in writing, and form thereof.—Statement in writing required. A statement in writing must be made, signed by the defendant and verified by his oath, to the following effect: 1. Contents. It must authorize the entry of judgment for a specified sum; 2. If it be for money due, or to become due, it must state concisely the facts out of which it arose, and show that the sum confessed therefor is justly due, or to become due; 3. If it be for the purpose of securing the plaintiff against a contingent liability, it must state concisely the facts constituting the liability, and show that the sum confessed therefor does not exceed the same. Sec. 599. Filing statement and entering judgment.—Filing of statement and entering judgment, district court. The statement must be filed with the clerk of the district court if the judgment is to be entered in that court, who must indorse upon it, and enter of record, a judgment of such court for the amount confessed, with $10 costs. The statement and affidavit, with the judgment indorsed, thereupon becomes the judgment-roll. Sec. 600. How, in magistrates’ courts.—Magistrate’s court. In a magistrate’s court, where the court has authority to enter the judgment, the statement may be filed with the magistrate, who must thereupon enter in his docket a judgment of his court for the amount confessed, with $3 costs. submitting a controversy without actionSubmitting controversy without action. Sec. 601. Controversy, how submitted without action.—By parties to question. Parties to a question in difference, which might be the subject of a civil action, may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of 1013the same to any court which would have jurisdiction if an action had been brought; but it must appear, by affidavit, that the controversyAffidavit that controversy is real. is real and the proceedings in good faith, to determine the rights of the parties. The court must thereupon hear and determine the case, and render judgment thereon, as if an action were depending. Sec. 602. Judgment on, as in other cases, but without costs prior to notice of trial.—Judgment on. Judgment must be entered as in other cases, but without costs for any proceeding, prior to the trial. The case, the submission, and a copy of the judgment constitute the judgment roll. Sec. 603. Judgment may be enforced or appealed from as in an action.—Enforcement of, and appeal from. The judgment may be enforced in the same manner as if it had been rendered in an action, and is in the same manner subject to appeal. discharge of persons imprisoned on civil processPersons imprisoned on civil process. Sec. 604. Persons confined may be discharged.— Any person confinedDischarge of. in jail, on an execution issued on a judgment rendered in a civil action, must be discharged therefrom upon the conditions in this subchapter specified. Sec. 605. Notice of application for discharge from prison.—Notice of application for. Such person must cause a notice in writing to be given to the plaintiff, his agent, or attorney, that at a certain time and place he will apply to the judge of the district court for the purpose of obtaining a discharge from his imprisonment. Sec. 606. Service of notice.— Such notice must be served uponService of. the plaintiff, his agent, or attorney, one day at least before the hearing of the application. Sec. 607. Examination before judge.— At the time and placeExamination before judge. specified in the notice, such person must be taken before such judge, who must examine him under oath concerning his estate and property and effects, and the disposal thereof, and his ability to pay the judgment for which he is committed; and such judge may also hear any other legal and pertinent evidence that may be produced by the debtor or the creditor. Sec. 608. Interrogatories may be in writing.— The plaintiff inInterrogatories. the action may, upon such examination, propose to the prisoner any interrogatories pertinent to the inquiry, and they must, if required by him, be proposed and answered in writing, and the answer must be signed and sworn to by the prisoner. Sec. 609. Oath to be administered.— If, upon the examination,Oath. the judge is satisfied that the prisoner is entitled to his discharge, he must administer to him the following oath, to wit: “I, ____ ____, do solemnly swear that I have not any estate, real or personal, to the amount of $50, except such as is by law exempted from being taken in execution; and that I have not any other estate now conveyed or concealed, or in any way disposed of, with design to secure the same to my use, or to hinder, delay, or defraud my creditors, so help me God.” Sec. 610. Order of discharge.— After administering the oath, theOrder of discharge. judge must issue an order that the prisoner be discharged from custody, and the officer, upon the service of such order, must discharge the prisoner forthwith, if he be imprisoned for no other cause. Sec. 611. If not discharged, prisoner may again apply, when.—Additional applications for. If such judge does not discharge the prisoner, he may apply for his discharge at the end of every succeeding ten days, in the same 1014manner as above provided, and the same proceedings must thereupon be had. Sec. 612. Discharge final.—Discharge final. The prisoner, after being so discharged, is forever exempted from arrest or imprisonment for the same debt, unless he be convicted of having willfully sworn falsely upon his examination before the judge, or in taking the oath before prescribed. Sec. 613. Judgment remains in force.—Judgment to remain in force. The judgment against any prisoner who is discharged remains in full force against any estate which may then or at any time afterward belong to him, and the plaintiff may take out a new execution against the goods and estate of the prisoner, in like manner as if he had never been committed. Sec. 614. Plaintiff may order discharge of prisoner, who shall not thereafter be liable to imprisonment for the same cause of action.—Discharge ordered by plaintiff. The plaintiff in the action may at any time order the prisoner to be discharged, and he is not thereafter liable to imprisonment for the same cause of action. Sec. 615. Plaintiff to advance funds for support of prisoner.—Plaintiff to advance funds for support of prisoner. Whenever a person is committed to jail on an execution issued on a judgment recovered in a civil action, the creditor, his agent, or attorney must advance to the jailer, on such commitment, sufficient money for the support of the prisoner for one week, and must make the like advance for every successive week of his imprisonment; and in case of failure to do so, the jailer must forthwith discharge such prisoner from custody, and such discharge has the same effect as if made by order of the creditor. summary proceedings for obtaining possession of real property in certain casesSummary proceedings, possession of real property. Cross ReferenceVol. 42, p. 1004.U. S. C., p. 1641.Magistrates’ courts to have exclusive original jurisdiction of all actions for the forcible entry and detainer of real estate, see section 7 of the Panama Canal Act. Sec. 616. Forcible entry defined.—“Forcible entry,” defined. Every person is guilty of a forcible entry who either— 1. By breaking open doors, windows, or other parts of a house, or by any kind of violence or circumstance of terror enters upon or into any real property; or 2. Who, after entering peaceably upon real property, turns out by force, threats, or menacing conduct, the party in possession. Sec. 617. Forcible detainer defined.—“Forcible detainer.” Every person is guilty of a forcible detainer who either— 1. By force, or by menaces and threats of violence, unlawfully holds and keeps the possession of any real property, whether the same was acquired peaceably or otherwise; or 2. Who, in the nighttime, or during the absence of the occupant of any lands, unlawfully enters upon real property, and who, after demand made for the surrender thereof, for the period of five days, refuses to surrender the same to such former occupant. The occupant of real property, within the meaning of this subdivision, is one who, within five days preceding such unlawful entry, was in the peaceable and undisturbed possession of such lands. Sec. 618. Unlawful detainer defined.—“Unlawful detainer.” A tenant of real property, for a term less than life, is guilty of unlawful detainer: 1. By holding after termination of lease. When he continues in possession, in person or by subtenant, of the property, or any part thereof, after the expiration of the 1015term for which it is let to him, without the permission of his landlord, or the successor in estate of his landlord, if any there be; but in case of a tenancy at will it must first be terminated by notice, as prescribed in the Civil Code. 2. When he continues in possession, in person or by subtenant,After default in rent. without the permission of his landlord, or the successor in estate of his landlord, if any there be, after default in the payment of rent, pursuant to the lease or agreement under which the property is held, and three days’ notice, in writing, requiring its payment statingNotice. the amount which is due, or possession of the property, shall have been served upon him and if there is a subtenant in actual occupation of the premises, also upon such subtenant. Such notice may be served at any time within one year after the rent becomes due. 3. When he continues in possession, in person or by subtenant,After breach of covenant. after a neglect or failure to perform other conditions or covenants of the lease or agreement under which the property is held, including any covenant not to assign or sublet, than the one for the payment of rent, and three days’ notice, in writing, requiring the performance of such conditions or covenants, or the possession of the property, shall have been served upon him, and if there is a subtenant in actual occupation of the premises, also, upon such subtenant. Within three days after the service of the notice, the tenant,Performance after notice. or any subtenant in actual occupation of the premises, or any mortgagee of the term, or other person interested in its continuance, may perform the conditions or covenants of the lease or pay the stipulated rent, as the case may be, and thereby save the lease from forfeiture: *Provided*, That if the conditions and covenants of the lease,*Proviso*.When performance impossible. violated by the lessee, cannot afterward be performed, then no notice, as last prescribed herein, need be given to said lessee or his subtenant, demanding the performance of the violated conditions or covenants of the lease. A tenant may take proceedings, similar to those prescribed in thisProceedings against subtenant. subchapter, to obtain possession of the premises let to a subtenant, in case of his unlawful detention of the premises underlet to him. 4. Any tenant or subtenant assigning or subletting or committingAfter subletting, etc., contrary to conditions of lease. waste upon the demised premises, contrary to the conditions or covenants of his lease, thereby terminates the lease, and the landlord, or his successor in estate, shall upon service of three days’ notice toNotice. quit upon the person or persons in possession, be entitled to restitution of possession of such demised premises under the provisions of this subchapter. Sec. 619. Service of notice.— The notices required by the precedingService of. section may be served, either: 1. By delivering a copy to the tenant personally; or 2. If he be absent from his place of residence, and from his usual place of business, by leaving a copy with some person of suitable age and discretion at either place, and sending a copy through the mail addressed to the tenant at his place of residence; or 3. If such place of residence and business can not be ascertained, or a person of suitable age or discretion there can not be found, then by affixing a copy in a conspicuous place on the property, and also delivering a copy to a person there residing, if such person can be found; and also sending a copy through the mail addressed to the tenant at the place where the property is situated. Service upon a subtenant may be made in the same manner. Sec. 620. Parties defendant.— No person other than the tenantParties defendant. of the premises and subtenant, if there be one, in the actual occupation of the premises when the complaint is filed, need be made parties 1016defendant in the proceeding, nor shall any proceeding abate, nor the plaintiff be nonsuited for the nonjoinder of any person who might have been made party defendant, but when it appears that any of the parties served with process, or appearing in the proceeding, are guilty of the offense charged, judgment must be rendered against him. In case a defendant has become a subtenant of the premises in controversy after the service of the notice provided for by part two of section 618 upon the tenant of the premises, the fact that such notice was not served on each subtenant shall constitute no defense to the action. Married woman.In case a married, woman be a tenant, or a subtenant, her coverture shall constitute no defense; but in case her husband be not joined, or unless she be doing business as a sole trader, an execution issued upon a personal judgment against her can only be enforced against property on the premises at the commencement of the action. Persons entering under tenant.All persons who enter the premises under the tenant, after the commencement of the suit, shall be bound by the judgment, the same as if he or they had been made party to the action. Sec. 621. Parties generally.—*Ante*, pp. 919–923, to govern. Except as provided in the preceding section, the provisions of sections 86 to 110, relating to parties to civil actions, are applicable to this proceeding. Sec. 622. Complaint must be verified.—Verification of complaint. The plaintiff in his complaint, which shall be verified, must set forth the facts on which he seeks to recover, and describe the premises with reasonable certainty, and may set forth therein any circumstances of fraud, force, or violence, which may have accompanied the alleged forcible entry or forcible or unlawful detainer, and claim damages therefor. In case the unlawful detainer charged is after default in the payment of rent, the complaint must state the amount of such rent. Upon filing the complaint, a summons must be issued thereon. Sec. 623. Summons, form and service of.—Summons, form and service. The summons must require the defendant to appear and answer within three days after the service of the summons upon him, and must notify him that if he fails to so appear and answer, the plaintiff will apply to the court for the relief demanded in the complaint. In all other respects the summons, or any alias summons in such proceedings, must be issued and served and returned in the same manner as summons in a civil action. Sec. 624. Arrest.—Arrest. If the complaint presented establishes, to the satisfaction of the magistrate, fraud, force, or violence, in the entry or detainer, and that the possession held is unlawful, be may make an order for the arrest of the defendant. Sec. 625. Judgment by default.—Judgment by default. If, at the time appointed, the defendant do not appear and defend, the court must enter his default and render judgment in favor of the plaintiff as prayed for in the complaint. Sec. 626. Defendant may appear, and so forth.—Appearance of defendant. On or before the day fixed for his appearance, the defendant may appear and answer or demur. Sec. 627. Showing required of plaintiff in forcible entry or detainer; of defendant.—Proof of charge of forcible entry or detainer. On the trial of any proceeding for any forcible entry or forcible detainer, the plaintiff shall only be required to show, in addition to the forcible entry or forcible detainer complained of, that he was peaceably in the actual possession at the time Defense.of the forcible entry, or was entitled to the possession at the time of the forcible detainer. The defendant may show in his defense that he or his ancestors, or those whose interest in such premises he claims, have been in the quiet possession thereof for the space of one whole year together next before the commencement of the proceed-1017ings, and that his interest therein is not then ended or determined; and such showing is a bar to the proceedings. Sec. 628. Complaint must be amended in certain cases; continuance.—Amendment of complaint; continuances. When, upon the trial of any proceeding under this subchapter, it appears from the evidence that the defendant has been guilty of either a forcible entry or a forcible or unlawful detainer, and other than the offense charged in the complaint, the magistrate must order that such complaint be forthwith amended to conform to such proofs; such amendment must be made without any imposition of terms. No continuance shall be permitted upon account of such amendment unless the defendant, by affidavit filed, shows to the satisfaction of the court good cause therefor. Sec. 629. Judgment, what it shall declare.— If upon the trialJudgment, declaration of. the finding of the court be in favor of the plaintiff and against the defendant, judgment shall be entered for the restitution of the premises; and if the proceedings be for an unlawful detainer after neglect or failure to perform the conditions or covenants of the lease or agreement under which the property is held, or after default in the payment of rent, the judgment shall also declare the forfeiture of such lease or agreement. Assessment of damages.—The court shall also assess the damagesAssessment of damages. occasioned to the plaintiff by any forcible entry, or by any forcible or unlawful detainer, alleged in the complaint and proved on the trial, and find the amount of any rent due, if the alleged unlawful detainer be after default in the payment of rent. Judgment against the defendant guilty of the forcible entry, or forcible or unlawful detainer, may be entered in the discretion of the court either for the amount of the damages and rent found due, or for three times the amount so found. Execution.—When the proceeding is for an unlawful detainerExecution. after default in the payment of rent, and the lease or agreement under which the rent is payable has not by its terms expired, execution upon the judgment shall not be issued until the expiration of five days after the entry of the judgment, within which time the tenant, or any subtenant, or any mortgagee of the term, or any other party interested in its continuance, may pay into court, for the landlord, the amount found due as rent, with interest thereon, and the amount of the damages found by the court for the unlawful detainer, and the costs of the proceedings, and thereupon the judgment shall be satisfied and the tenant be restored to his estate. Satisfaction of judgment.—But if payment as here provided beSatisfaction of judgment. not made within five days, the judgment may be enforced for its full amount, and for the possession of the premises. In all other cases the judgment may be enforced immediately. Sec. 630. Effect of an appeal upon the judgment.— An appealEffect of appeal. taken by the defendant shall not stay proceedings upon the judgment unless the magistrate before whom the same was rendered so directs. Sec. 631. Rules of practice.— Except as otherwise provided inRules of practice.*Ante*, pp. 916–998, to govern. this subchapter the provisions of chapters 4 to 16 of this code are applicable to, and constitute the rules of practice in the proceedings mentioned in this subchapter. Sec. 632. Appeals, how taken, and so forth.— The provisionsTaking of appeal. of sections 491 to 501 of this code, relative to appeals, except in so far as they are inconsistent with the provisions of this subchapter, apply to the proceedings mentioned in this subchapter. Sec. 633. Relief against forfeiture of lease.— The court mayRelief against forfeiture of lease. relieve a tenant against a forfeiture of a lease, and restore him to his former estate, in case of hardship, where application for such 1018relief is made within thirty days after the forfeiture is declared by the judgment of the court, as provided in section 629. The application may be made by a tenant or subtenant, or a mortgagee of the term, or any person interested in the continuance of the term. It must be made upon petition, setting forth the facts upon which the relief is sought, and be verified by the applicant. Notice of the application, with a copy of the petition, must be served on the plaintiff in the judgment, who may appear and contest the application. In no case shall the application be granted except on condition that full payment of rent due, or full performance of conditions or covenants stipulated, so far as the same is practicable, be made. CHAPTER 20.— CONTEMPTSCONTEMPTS. Sec. 634. Summary punishment in certain cases. What contempt of court may be punished summarily.—Summary punishment in certain cases. A person guilty of misbehavior in the presence of or so near a court, judge, or magistrate as to obstruct the administration of justice, including the refusal of a person present in court to be sworn as a witness or to answer as a witness when lawfully required, shall be guilty of contempt, which the court may punish summarily, by imprisonment in jail not exceeding ten days, or by fine not exceeding $100, or by both such fine and imprisonment. Sec. 635. Order adjudging guilt under preceding section.—Order adjudging guilt. When a contempt under section 634 is committed, an order must be made, reciting the facts as occurring in such presence or proximity, adjudging that the person proceeded against is thereby guilty of a contempt, and that he be punished as therein prescribed. Sec. 636. What other acts are contempts of court.—Further contempts. A person guilty of any of the following acts may be punished as for contempt: 1. Disobedience of or resistance to a lawful writ, process, order, judgment, or command of the district or a magistrate’s court, or injunction granted by the district court or judge; 2. Misbehavior of an officer of a court in the performance of his official duties, or in his official transactions; 3. A failure to obey a subpoena duly served; 4. The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him. Sec. 637. Affidavit of facts constituting contempt.—Affidavit of facts constituting. When a contempt under section 636 is committed, an affidavit shall be presented to the court, judge, or magistrate of the facts constituting the contempt. Sec. 638. A warrant of attachment may issue, or a notice to show cause.—Warrant of attachment may issue. When a contempt under section 636 is committed, a warrant of attachment may be issued to bring the person charged to answer, or, without a previous arrest, a warrant of commitment may, Notice to show cause.upon notice, or upon an order to show cause, be granted; and no warrant of commitment can be issued without such previous attachment to answer, or such notice or order to show cause. Sec. 639. Bail may be given by a person arrested under such warrant.—Bail, as matter of right. Whenever a warrant of attachment is issued, pursuant to this chapter, the court, judge, or magistrate must direct, by an indorsement on such warrant, that the person charged may be let to bail for his appearance, in an amount to be specified in such indorsement. Sec. 640. Marshal or constable must, upon executing the warrant, arrest and detain the person until discharged.—Arrest and detention by marshal, etc. Upon executing the warrant of attachment, the marshal or constable must keep the person in custody, bring him before the court, judge, or 1019magistrate and detain him until an order be made in the premises, unless the person arrested entitle himself to be discharged, as provided in section 641. Sec. 641. Bail bond, form and conditions of.— When a directionBail bond. to let the person arrested to bail is contained in the warrant of attachment, or indorsed thereon, he must be discharged from the arrest, upon executing and delivering to the officer, at any time before the return day of the warrant, a written undertaking, with two sufficient sureties, to the effect that the person arrested will appear on the return of the warrant and abide the order of the court, judge, or magistrate thereupon; or they will pay as may be directed, the sum specified in the warrant. Sec. 642. Officer must return warrant and undertaking, if any.—Return by officer. The officer must return the warrant of arrest and undertaking, if any, received by him from the person arrested, by the return day specified therein. Sec. 643. Hearing.— When the person arrested has been broughtHearing. up or appeared, the court, judge, or magistrate must proceed to investigate the charge, and must hear any answer which the person arrested may make to the same, and may examine witnesses for or against him, for which an adjournment may be had from time to time, if necessary. Sec. 644. Judgment and punishment, if guilty.— The court shallJudgment, punishment. determine whether the accused is guilty of contempt, and, if he be adjudged guilty, he may be fined not exceeding $100, or imprisoned not more than ten days, or both. If the contempt consists in the violation of an injunction, the person guilty of such contempt may also be ordered to make complete restitution to the party injured by such violation. Sec. 645. If the contempt is the omission to perform any act, the person may be imprisoned until performance.— When theImprisonment to enforce performance of act. contempt consists in the omission to perform an act which is yet in the power of the person to perform, he may be imprisoned until he have 11 So in original. performed it, and in that case the act must be specified in the warrant of commitment. Sec. 646. If a party fail to appear, proceedings.— When theFailure of defendant to appear. warrant of arrest has been returned served, if the person arrested do not appear on the return-day, the court, judge, or magistrate may issue another warrant of arrest, or may order the undertaking to be prosecuted, or both. If the undertaking be prosecuted, the measure of damages in the action is the extent of the loss or injury sustained by the aggrieved party by reason of the misconduct for which the warrant was issued, and the costs of the proceedings. Sec. 647. Illness sufficient cause for nonappearance of party arrested; confinement under arrests for contempt.—Illness sufficient excuse.Confinement under arrests for contempt. Whenever, by the provisions of this chapter, an officer is required to keep a person arrested on a warrant of attachment in custody, and to bring him before a court, judge, or magistrate, the inability, from illness or otherwise, of the person to attend, is a sufficient excuse for not bringing him up; and the officer must not confine a person arrested upon the warrant in jail, or otherwise restrain him of personal liberty, except so far as may be necessary to secure his personal attendance. CHAPTER 21.— ESCHEAT OF PROPERTYESCHEAT OF PROPERTY. Sec. 648. What property escheats.— If an intestate decedentWhat property escheats. leaves no husband, wife, or kindred, and there are no heirs to take his estate or any portion thereof, under subdivision 8 of section 402*Post*, p. 1179. 1020of the Civil Code, or if any person dies leaving any property in his estate not disposed of by will, and there are no persons entitled to succeed thereto under the laws of the Canal Zone, the same shall escheat to the United States. Sec. 649. Action to determine right of united states to escheated property.—Action to determine right of United States to property. Whenever the district attorney is informed that any estate has escheated or is about to escheat to the United States or that the property involved in any action or special proceeding has escheated or is about to escheat to the United States, he may commence an action on behalf of the United States to determine its rights to said property or may intervene on ifs behalf in any action or special proceeding affecting any such estate and contest the rights of any claimant or claimants thereto. Such action shall be commenced by filing a petition. Description.Description of property.—There shall be set forth in such petition a description of the property, the name of the person last possessed thereof, the name of the person, if any, claiming such property, or any portion thereof, and the facts and circumstances by virtue of which it is claimed the property has escheated. Order requiring appearance of interested parties to issue.Order requiring interested parties to appear.—Upon the filing of such petition, the court must make an order requiring all persons interested in the estate to appear and show cause, if any there be, within sixty days from the date of the order, why such estate should not vest in the United States. Notice of such order must be given by posting in three public places in the Canal Zone for four successive weeks prior to the date set for the hearing. Upon the giving of such notice the court shall have full and complete jurisdiction over the estate, the property, and the person of everyone having or claiming any interest in the said property, and shall have full and complete jurisdiction to hear and determine the issues therein, and render the appropriate judgment thereon. Custody of property.Custody of such property.—The property in such estates shall, in the discretion of the court, be sold in the manner provided in chapters 23 to 36 for the sale of property of a decedent’s estate, and the proceeds deposited with the collector of the Panama Canal, to be held for a period of five years from the date of the judgment under section 650. Joinder of parties and actions.Joinder of parties and actions.—In any proceeding brought by the district attorney under this title any two or more causes of action may be joined in the same proceedings and in the same petition without being separately stated, and it shall be sufficient to allege in the petition that the decedent left no heirs to take the estate and the failure of the heirs to appear and set up their claims in any such proceeding, or in any proceeding for the administration of such estate, shall be sufficient proof upon which to base the judgment in any such proceeding or such decree of distribution. Sec. 650. Appearance, pleadings, and judgment.—Appearance, pleadings, and judgment. All persons named in the petition may appear and answer, and traverse or deny the facts stated therein at any time before the time for answering expires, and any other person claiming an interest in such estate may appear and be made a defendant, by motion for that purpose in open court within the time allowed for answering, and if no such person appears and answers within the time, then judgment must be rendered that the United States is the owner of the property in such petition claimed; Trial upon denial of title set up by United States.But if any person appears and denies the title set up by the United States, or traverses any material fact set forth in the petition, the issue of fact must be tried as issues of fact are tried in civil actions.1021 If, after the issues are tried, it appears from the facts found or admitted that the United States has good title to the property in the petition mentioned, or any part thereof, judgment must be rendered that the United States is the owner and entitled to the possession thereof. Sec. 651. Claim to escheated property.— Within five years afterClaim to escheated property, by petition. judgment in any proceeding had under this chapter, a person not a party or privy to such proceeding may file a petition in the district court, showing his claim or right to the property, or the proceeds thereof. Said petition shall be verified, and, among other things, must stateVerification, contents, etc. the full name and the place and date of birth of the decedent; whether or not such decedent was ever married, and if so, where, when, and to whom; how, when, and where such marriage, if any, was dissolved; whether or not said decedent was ever remarried, and, if so, where, when, and to whom; the full names and the dates of birth of lineal descendents and ascendents and of all other known heirs, and the names and places of residence of all who are then surviving; and such other information as may be required by the court. If for any reason the petitioner is unable to set forth any of the matters or things hereinabove required, he shall clearly state such reason in his petition. A copy of such petition must be served on the district attorney atService of. least twenty days before the hearing of the petition, who must answer the same; And the court must thereupon try the issue as issues are tried inTrial of issue. civil actions, and if it is determined that such person is entitled to the property, or the proceeds thereof, it must order the property, if it has not been sold, to be delivered to him, or if it has been sold and the proceeds paid to the Collector of the Panama Canal, then it must order the collector to pay the same. All persons who fail to appear and file their petitions within theLimitation on action. time limited are forever barred. Sec. 652. Proceeds of property to be covered in to treasury.—Proceeds from escheated property covered into Treasury. If no claim to the property or the proceeds thereof is filed within the time specified in the preceding section, the court may, on application of the district attorney, direct that the proceeds be cowered into the Treasury of the United States as miscellaneous receipts. CHAPTER 22.— CHANGE OF NAMESCHANGE OF NAMES. Sec. 653. Jurisdiction.— Applications for change of names mustJurisdiction for. be heard and determined by the district court. Sec. 654. Application to change name, made to district court.—Application. All applications for change of names must be made to the division of the district court where the person whose name is proposed to be changed resides, by petition, signed by such person; and if such person is under twenty-one years of age, if a male, and under theMinor, through parent, etc. age of eighteen years of age, if a female, by one of the parents, if living, or if both be dead, then by the guardian; and if there be no guardian, then by some near relative or friend. The petition must specify the place of birth and residence of suchContents of petition. person, his or her present name, the name proposed, and the reason for such change of name, and must, if the father of such person be not living, name, as far as known to the petitioner, the near relatives of such person, and their place of residence. Sec. 655. Order to show cause; publication of order; proof of publication.—Order to show cause Upon the filing of the said petition the court shall thereupon make an order reciting the filing of the application, the name of the person by whom it is filed and the name proposed, and 1022directing all persons interested in said matter to appear before the court, at a time and place specified, not less than four or more than eight weeks from the time of making such order, to show cause why Publication.the application for change of name should not be granted. A copy of the order to show cause shall be posted by the clerk of the court in three of the most public places in the division in which the court Proof thereof.is held, for a period of four successive weeks. Proof must be made to the satisfaction of the court, of such posting, at the time of the hearing of the application. CHAPTER 23.— JURISDICTION OF DISTRICT COURT OVER ESTATES OF DECEDENTSESTATES OF DECEDENTS. Sec. 656. Jurisdiction of district court over the estate, when exercised.—Jurisdiction of district court over. Wills must be proved, and letters testamentary or of administration granted— 1. In the division of the district court of which the decedent was a resident at the time of his death, in whatever place he may have died; 2. In the division in which the decedent may have died, leaving estate therein, he not being a resident of the Canal Zone; 3. In the division in which any part of the estate may be, the decedent having died out of the Canal Zone, and not resident thereof at the time of his death; 4. In the division in which any part of the estate may be, the decedent not being a resident of the Canal Zone, and not leaving estate in the division in which he died; 5. In all other cases, in the division where application for letters is first made: *Proviso*.Probate matters handled by public administrator.*Provided*, *however*, That all matters of probate handled by the public administrator may be conducted in the Balboa division, regardless of the residence of the decedent or the location of the estate. Sec. 657. When jurisdiction of district court over estates decided by first application.—Jurisdiction decided by application. When the estate of the decedent is in more than one division, he having died out of the Canal Zone, and not having been a resident thereof at the time of his death, or being such nonresident, and dying within the Canal Zone, and not leaving estate in the division where he died, the division of the district court in which application is first made, for letters testamentary or of administration, has exclusive jurisdiction of the settlement of the estate. CHAPTER 24. — PROBATE OF WILLSPROBATE OF WILLS. petition, notice, and proofPetition, notice, and proof. Sec. 658. Custodian of will to deliver same to whom; penalty.—Custodian to deliver will to district court. Every custodian of a will, within thirty days after receipt of information that the maker thereof is dead, must deliver the same to the division of the district court having jurisdiction of the estate, Penalty on failure.or to the executor named therein. A failure to comply with the provisions of this section makes the person failing responsible for all damages sustained by anyone injured thereby. Sec. 659. Who may petition for probate of will.—Petition for probate. Any executor, devisee, or legatee named in any will, or any other person interested in the estate, may, at any time after the death of the testator, petition the division of the court having jurisdiction to have the will proved, whether the same be in writing, in his possession or not, or is lost or 1023destroyed, or beyond the jurisdiction of the Canal Zone, or a nuncupative will. Sec. 660. What petition for probate of will must show.—Contents. A petition for the probate of a will must show: 1. The jurisdictional facts; 2. Whether the person named as executor consents to act, or renounces his right to letters testamentary; 3. The names, ages, and residences of the heirs, legatees, and devisees of the decedent, so far as known to the petitioner; 4. The probable value and character of the property of the estate; 5. The name of the person for whom letters testamentary are prayed. No defect of form or in the statement of jurisdictional facts actually existing, shall make void the probate of a will. Sec. 661. When execut or forfeits right to letters.— If theForfeiture of right to letters by executor. person named in a will as executor, for thirty days after he has knowledge of the death of the testator, and that he is named as executor, fails to petition the proper division of the court for the probate of the will, and that letters testamentary be issued to him, he may be held to have renounced his right to letters, and the court may appoint any other competent person administrator, unless good cause for delay is shown. Sec. 662. Possession of will by third person; production of.—Possession of will by third party. If it is alleged in any petition that any will is in the possession of a third person, and the court is satisfied that the allegation is correct, an order must be issued and served upon the person having possession of the will, requiring him to produce it at a time named in the order. If he has possession of the will and neglects or refuses to produce itOrder for production to issue. in obedience to the order, he may by warrant from the court be committed to jail, and be kept in close confinement until he produces it. Sec. 663. Notice of petition for probate of wills, how given.—Notice of petition. When the petition is filed, and the will produced, the clerk of the court must set the petition for hearing by the court upon some day not less than ten nor more than thirty days from the production of the will. Notice of the hearing shall be given by such clerk by publishing the same in a newspaper of general circulation in the Canal Zone. If the notice is published in a weekly newspaper, it must appear therein on at least three different days of publication; and if in a newspaper published oftener than once a week, it shall be so published that there must be at least ten days from the first to the last day of publication, both the first and the last day being included. Sec. 664. Notification of time for probate of will.— Copies ofNotice of time for probate. the notice of the time appointed for the probate of the will must be addressed to the heirs of the testator and the devisees and legatees named in the will at their places of residence, if known to the petitioner, and deposited in the post office, at least ten days before the hearing. If their places of residence be not known, the copies of notice may be addressed to them, and deposited in the post office at the place where the proceedings are pending. A copy of the same notice must in like manner be mailed to the person named as executor, if he be not the petitioner; also, to any person named as coexecutor not petitioning, if their places of residence be known. Proof of mailing the copies of the notice must be made at the hearing. Personal service of copies of the notice at least ten days before the day of hearing is equivalent to mailing.1024 Sec. 665. Order to enforce production of wills or attendance of witnesses.—Production of wills and attendance of witnesses. The judge of the district court may at any time make and issue all necessary orders and writs to enforce the production of wills and the attendance of witnesses. Sec. 666. Hearing proof of will after proof of service of notice.—Hearing proof of will. At the time appointed for the hearing, or the time to which the hearing may have been postponed, the court, unless the parties appear, must require proof that the notice has been given, which being made, the court must hear testimony in proof of the will. Sec. 667. Contest of will. Who may appear and contest the will.—Any person interested may appear and contest the will. Devisees, legatees, or heirs of an estate may contest the will through their guardians, or attorneys appointed by themselves or by the court for that purpose; but a contest made by an attorney appointed by the court does not bar a contest after probate by the party so represented, if commenced within the time provided in section 682; nor does the nonappointment of an attorney by the court of itself invalidate the probate of a will. Sec. 668. Probate of wills not contested.—Probate, when uncontested. If no person appears to contest the probate of a will, the court may admit it to probate on the testimony of one of the subscribing witnesses only, if he testifies that the will was executed in all particulars as required by law, and that the testator was of sound mind at the time of its execution. If it appears at the time fixed for the hearing that none of the subscribing witnesses reside in the Canal Zone, but that the deposition of one of them can be taken elsewhere, the court may direct it to be taken, and may authorize a photographic copy of the will to be made and to be presented to such witnesses on his examination, who may be asked the same questions with respect to it and the handwriting of himself, the testator, and the other witness, as would be pertinent and competent if the original will were present. If neither the attendance in court nor the deposition of any of the subscribing witnesses can be procured, the court may admit the will to probate upon the testimony of any other witness as provided in section 675. Sec. 669. Clerk’s record.—Clerk’s record. When the court admits a will to probate it must be recorded in the minutes by the clerk, with the notation: “Admitted to probate (giving date).” Sec. 670. Olographic wills.—Olographic wills, proof of. An olographic will may be proved in the same manner that other private writings are proved. Sec. 671. Probate of will detained outside zone.—Probate of, detained outside Zone. If it is alleged in any petition that any will of any person who at the time of his death was a resident of the Canal Zone is detained beyond the jurisdiction of the zone, in a court of any State or foreign country, and that such will can not be produced for probate in the zone, and the Authenticated copy admissible.court is satisfied that the allegations are true, a copy of the will duly authenticated may be proved, allowed, and admitted to probate in the zone in lieu of the original will, and have the same force and effect as the original will. The same proof shall be required in order to admit the will to probate in the zone as would be required under the provisions of this chapter if the original will were produced. Subscribing witnesses may testify upon photographic copy.The court may authorize a photographic copy of the will to be presented to the subscribing witness upon his examination in court, or by deposition as provided in section 668, and such witness may be asked the same questions with respect to it, and the handwriting of himself, the testator, and the other witness, as would be pertinent and competent if the original will were present.1025 contesting probate of willContesting probate. Sec. 672. Contestants to file grounds of contest, and petitioner to reply.—Grounds of, to be filed. If anyone appears to contest the will, he must file written grounds of opposition to the probate thereof, and serve a copy on the petitioner and other residents of the Canal Zone interested in the estate, any one or more of whom may demur thereto,Demurrer thereto. upon any of the grounds of demurrer provided for in sections 135 to 139. If the demurrer is sustained, the court must allow the contestant a reasonable time, not exceeding ten days, within which to amend his written opposition. If the demurrer is overruled, the petitioner and others interested may jointly or separately answerAnswer. the contestant’s grounds, traversing, or otherwise obviating or avoiding the objections. Any issues of fact thus raised, involving: 1. The competency of the decedent to make a last will andIssues of fact involved. testament; 2. The freedom of the decedent at the time of the execution of the will from duress, menace, fraud, or undue influence; 3. The due execution and attestation of the will by the decedent or subscribing witnesses; or, 4. Any other questions substantially affecting the validity of the will; Must, on request of either party in writing (filed at least tenRight to trial by jury. days prior to the day set for the hearing), be tried by a jury. If no jury is demanded, the court must try and determine the issues joined. On the trial, the contestant is plaintiff and the petitioner is defendant. Sec. 673. How jury obtained and trial had.— When a jury isImpanelling, etc., of jury. demanded, the district court must impanel a jury to try the case, in the manner provided for impaneling trial juries in said court, and the trial must be conducted in accordance with the provisions of sections 279 to 303. A trial by the court must be conducted as provided in sections 304 to 307. Sec. 674. Verdict of the jury; judgment.— The jury, after hearingVerdict and judgment thereon. the case, must return a special verdict upon the issues submitted to them by the court, upon which the judgment of the court must be rendered, either admitting the will to probate or rejecting it. In either case, the proofs of the subscribing witnesses must be reduced to writing. If the will is admitted to probate, the judgment, will, and proofs must be recorded. Sec. 675. Witnesses, who and how many to be examined; proof of handwriting admitted, when.—Witnesses, examination of, etc. If the will is contested, all the subscribing witnesses who are present in the Canal Zone, and who are of sound mind, must be produced and examined; and the death, absence, or insanity of any of them must be satisfactorily shown to the court. If none of the subscribing witnesses reside in the Canal Zone at the time appointed for proving the will, the court may admit the testimony of other witnesses to prove the sanity of the testator and the execution of the will; and, as evidence of the execution, it may admit proof of the handwriting of the testator and of the subscribing witnesses, or any of them. Sec. 676. Testimony reduced to writing for future evidence.—Testimony reduced to writing as evidence. The testimony of each witness, reduced to writing and signed by him, shall be good evidence in any subsequent contests concerning the validity of the will, or the sufficiency of the proof thereof, if the witness be dead, or has permanently removed from the Canal Zone. Sec. 677. If proved, certificate to be attached.— If the court isCertificate to be attached to will, if proved. satisfied, upon the proof taken, or from the facts found by the jury, that the will was duly executed, and that the testator at the 1026time of its execution was of sound and disposing mind, and not acting under duress, menace, fraud, or undue influence, a certificate of the proof and the facts found, signed by the judge and attested by the seal of the court, must be attached to the will. Sec. 678. Will and proof to be filed and recorded.—Filing and recording. The will, and a certificate of the proof thereof, must be filed and recorded by the clerk, and the same, when so filed and recorded, shall constitute part of the record in the cause or proceeding. All testimony shall be filed by the clerk. probate of foreign willsForeign wills. Sec. 679. Wills proved in states or foreign countries.—Probated in any State or foreign country to be allowed and recorded. All wills duly proved and allowed in any State of the United States, or in any foreign country or State, may be allowed and recorded in the division of the district court in which the testator shall have left any estate, or shall have been a resident, at the time of his death. Sec. 680. Probate of foreign will.—Probate of. When a copy of the will, and the order or decree admitting same to probate, duly authenticated, shall be produced by the executor, or by any other person interested in the will, with a petition for letters, the same must be filed, and the clerk of the court must appoint a time for the hearing; notice whereof must be given as hereinbefore provided for an original petition for the probate of a will. Sec. 681. Hearing proofs of probate of foreign will.—Hearing proofs of. If, on the hearing, it appears upon the face of the record that the will has been proved, allowed, and admitted to probate in any State of the United States, or in any foreign country, and that it was executed according to the law of the place in which the same was made, or in which the testator was at the time domiciled, or in conformity with the laws of the Canal Zone, it must be admitted to probate, and have the same force and effect as a will first admitted to probate in the zone, and letters testamentary or of administration issued thereon. contesting will after probateContesting will after probate. Sec. 682. The probate may be contested within one year.—Limitation. When a will has been admitted to probate, any person interested may, at any time within one year after such probate, contest the same or the validity of the will. For that purpose he must file in the division of the court in which the will was proved a petition in writing, containing his allegations against the validity of the will or against the sufficiency of the proof, and praying that the probate may be revoked. Sec. 683. Citation to be issued to parties interested.—Citation to interested parties. Upon filing the petition, and within one year after such probate, a citation must be issued to the executor of the will, or to the administrator with the will annexed, and to all the legatees and devisees mentioned in the will, and heirs residing in the Canal Zone, so far as known to the petitioner or to their guardians, if any of them are minors, or to their personal representatives, if any of them are dead, requiring them to appear before the court on some day therein specified, to show cause why the probate of the will should not be revoked. Sec. 684. The hearing had on proof of service.—Hearing, on proof of service. At the time appointed for showing cause, or at any time to which the hearing is postponed, proof having been made of service of the citation upon 1027all of the persons named therein, the court must proceed to try the issues of fact joined in the same manner as an original contest of a will. Sec. 685. Petitions to revoke probate of will tried by jury or court; judgment, what.—Triable by jury or court. In all cases of petitions to revoke the probate of a will, wherein the original probate was granted without a contest, on written demand of either party, filed three days prior to the hearing, a trial by jury must be had, as in cases of the contest of an original petition to admit a will to probate. If, upon hearing the proofs of the parties, the jury shall find, or, if no jury is had. the court shall decide, that the will is for any reason invalid, orJudgment thereon. that it is not sufficiently proved to be the last will of the testator, the probate must be annulled and revoked. Sec. 686. On revocation of probate, powers of executor, and so forth, cease, but not liable for acts in good faith.—Powers of executor to cease on revocation of probate. Upon the revocation being made, the powers of the executor or administrator with the will annexed, must cease; but such executor or administratorNo liability for acts in good faith. shall not be liable for any act done in good faith previous to the revocation. Sec. 687. Costs and expenses, by whom paid.— The fees andCosts and expenses. expenses must be paid by the party contesting the validity or probate of the will, if the will or probate is confirmed. If the probate is revoked, the costs must be paid by the party who resisted the revocation, or out of the property of the decedent, as the court directs. Sec. 688. Probate, when conclusive; one year after removal of disability given to infants and others.—Probate, when conclusive. If no person, within one year after the probate of a will, contest the same or the validity thereof, the probate of the will is conclusive; saving to infants andSaving period to infants and lunatics. persons of unsound mind, a like period of one year after their respective disabilities are removed. probate of lost or destroyed willLost or destroyed will. Sec. 689. Proof of lost or destroyed will to be taken.— WheneverProof of. any will is lost or destroyed, the district court must take proof of the execution and validity thereof and establish the same; notice to all persons interested being first given, as prescribed in regard to proofs of wills in other cases. All the testimony given must be reduced to writing, and signed by the witnesses. Sec. 690. Probate of wills lost; public calamity.— No will shallMatter to be shown. be proved as a lost or destroyed will, unless the same is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently or by public calamity destroyed in the lifetime of the testator, without his knowledge, or unless its provisions are clearly and distinctly proved by at least two credible witnesses: *Provided*, *however*, That if the testator be committed to*Proviso*.Will destroyed when testator insane. any hospital for the insane in the Canal Zone and after such commitment his last will and testament be destroyed by public calamity, and the testator is never restored to competency, then after the death of the said testator, his said last will may be probated as though it were in existence at the time of the death of the testator. Sec. 691. To be certified, recorded, and letters thereon granted.—Certification and recordation. When a lost will is established, the provisions thereof must be distinctly stated and certified by the judge, under his hand and seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded, and letters testamentary or ofLetters thereon granted. administration, with the will annexed, must be issued thereon in the same manner as upon wills produced and duly proved. The testimonyPreservation of testimony. must be reduced to writing, signed, certified, and filed as in 1028other cases, and shall have the same effect as evidence as provided in section 676. Sec. 692. Court to restrain in jurious acts of executors or administrators during proceedings to prove lost will.—Restraint of injurious acts of executors, etc., during proceedings. If, before or during the pendency of an application to prove a lost or destroyed will, letters of administration are granted on the estate of the testator, or letters testamentary of any previous will of the testator are granted, the court may restrain the administrators or executors, so appointed, from any acts or proceedings which would be injurious to the legatees or devisees claiming under the lost or destroyed will. probate of nuncupative willNuncupative will. Sec. 693. Nuncupative wills, when and how admitted to probate.—Probate of. Nuncupative wills may at any time, within six months after the testamentary words are spoken by the decedent, be admitted *Ante*, pp. 1022–1024.to probate, on petition and notice as provided in sections 658 to 671. The petition, in addition to the jurisdictional facts, must allege that the testamentary words or the substance thereof were reduced to writing within thirty days after they were spoken, which writing must accompany the petition. Sec. 694. Additional requirements in probate of nuncupative wills.—Additional requirements for. The district court must not receive or entertain a petition for the probate of a nuncupative will until the lapse of ten days from the death of the testator, nor must such petition at any time be acted on until the testamentary words are, or their substance is, reduced to writing and filed with the petition, nor until the surviving husband or wife (if any), and all other persons resident in the Canal Zone interested in the estate are notified as hereinbefore provided. Sec. 695. Contests and appointments to conform to provisions as to other wills.—Contests, appointments, to conform to provisions. Contests of the probate of nuncupative wills and appointments of executors and administrators of the estate devised thereby must be had, conducted, and made as hereinbefore provided in cases of the probate of written wills. CHAPTER 25.— EXECUTORS AND ADMINISTRATORS, THEIR LETTERS, BONDS, REMOVALS, AND SUSPENSIONSEXECUTORS AND ADMINISTRATORS. letters testamentary and of administration with the will annexed, how and to whom issuedLetters testamentary, etc. Sec. 696. Trust companies as executors.—Trust companies eligible as executors. Corporations or associations authorized to conduct the business of a trust company in the Canal Zone may be appointed to act as an executor, administrator, guardian of estates, assignee, receiver, depositary, or trustee in like manner as individuals. Oath, by officer of corporation.Oath.—In all cases in which it is required that an executor, administrator, guardian of estates, assignee, receiver, depositary or trustee, shall qualify by taking and subscribing an oath, or in which an affidavit is required, it shall be a sufficient qualification by such corporation if such oath be taken and subscribed or such affidavit be made by the president, vice-president, secretary, manager, trust officer, or assistant trust Appointment as guardian to apply to estate only.officer; provided, any such appointment as guardian shall apply to the estate only, and not to the person. Sec. 697. Issue of letters.—Issue of letters. If no objection is made as provided in section 700, the court admitting a will to probate, after the same is proved and allowed, must issue letters thereon to the persons named therein as executors who are competent to discharge the trust, unless they or either of them have renounced their right to letters.1029 Sec. 698. Who incompetent as executor.— No person is competentPersons incompetent as executor. to serve as executor who, at the time the will is admitted to probate, is: 1. Under the age of majority; 2. Convicted of an infamous crime; 3. Adjudged by the court incompetent to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity. Sec. 699. When no executor is named in will.— If no executorWhen no executor named, etc. is named in the will, or if the sole executor or all the executors therein named are dead, or incompetent, or renounce, or fail to apply for letters, or to appear and qualify, letters of administration withTo proceed as in intestacy. the will annexed must be issued as designated and provided for in granting of letters in case of intestacy. Sec. 700. Interested parties may file objections.— Any personObjections by interested parties. interested in the estate or will may file objections in writing to granting letters testimentary to the persons named as executors or any of them, and the objections must be heard and determined by the court; a petition may, at the same time, be filed for letters of administration with the will annexed. Sec. 701. Married woman may be executrix.— A married womanMarried woman as executrix. may be appointed an executrix. The authority of an executrix, who was unmarried when appointed, is not extinguished nor affected by her marriage. Sec. 702. Executor of an executor.— No executor of an executorExecutor of an executor. shall, as such, be authorized to administer on the estate of the first testator, but on the death of the sole or surviving executor of any last will, letters of administration with the will annexed, of the estate of the first testator, left unadministered, must be issued. Sec. 703. Letters of administration where minor executor.—Letters of administration.Granting of, when person named minor, or absent from Zone. Where a person absent from the Canal Zone, or a minor, is named executor—if there is another executor who accepts the trust and qualifies—the latter may have letters testamentary and administer the estate until the return of the absentee or the majority of the minor, who may then be admitted as joint executor. If there is no other executor, letters of administration, with the will annexed, must be granted; but the court may, in its discretion, revoke them on the return of the absent executor or the arrival of the minor at the age of majority. Sec. 704. Acts of a portion of executors valid.— When all theValidity of acts of portion of executors. executors named are not appointed by the court, those appointed have the same authority to perform all acts and discharge the trust, required by the will, as effectually for every purpose as if all were appointed and should act together; where there are two executors or administrators, the act of one alone shall be effectual, if the other is absent from the Canal Zone, or laboring under any legal disability from serving, or if he has given his co-executor or co-administrator authority, in writing, to act for both; and where there are more than two executors or administrators, the act of a majority is valid. Sec. 705. Authority of administrators with will annexed; letters, how issued.—Authority of administrators, c. t. a. Administrators with the will annexed have the same authority over the estates which executors named in the will would have, and their acts are as effectual for all purposes. Their letters must be signed by the clerk of the court, and bear the seal thereof. form of lettersForm of letters. Sec. 706. Form of letters testamentary.— Letters testamentaryLetters testamentary. must be substantially in the following form:1030 “Canal Zone, ____ division “The last will of A. B., deceased, a copy of which is hereto annexed, having been proved and recorded in the ____ division of the district court, C. D., who is named therein as such, is hereby appointed executor. “Witness, G. H., clerk of the district court, with the seal of the court affixed the ____ day of _ A. D., 19_. “[seal.] “By order of the court: “G. H., Clerk.” Sec. 707. Form of letters of administration with the will annexed.—Letters of administration, c. t. a. Letters of administration, with the will annexed, must be substantially in the following form: “Canal Zone, ____division “The last will of A. B., deceased, a copy of which is hereto annexed, having been proved and recorded in the ____ division of the district court, and there being no executor named in the will (or as the case may be), C. D. is hereby appointed administrator with the will annexed. “Witness, G. H., clerk of the district court, with the seal of the court affixed, the ____ day of ____, A. D., 19_. “[seal.] “By order of the court: “G. H., Clerk.” Sec. 708. Form of letters of administration.—Letters of administration. Letters of administration must be signed by the clerk, under the seal of the court, and substantially in the following form: “Canal Zone, ____ division “C. D. is hereby appointed administrator of the estate of A. B., deceased. “[seal.] “Witness, G. H., clerk of the district court, with the seal thereof affixed, the ____ day of ____, A. D. 19_. “By order of the court: “G. H., Clerk.” letters of administration, to whom and the order in which they are grantedTo whom, and order in which granted. Sec. 709. Order of persons entitled to administer.—Order of. Administration of the estate of a person dying intestate must be granted to some one or more of the persons hereinafter mentioned, the relatives of the deceased being entitled to administer only when they are entitled to succeed to his estate or some portion thereof; and they are, respectively, entitled thereto in the following order: 1. The surviving husband or wife, or some competent person whom he or she may request to have appointed.1031 2. The children. 3. The father and mother. 4. The brothers and sisters. 5. The grandchildren. 6. The next of kin entitled to share in the distribution of the estate. 7. The public administrator. 8. The creditors. 9. Any person legally competent. If the decedent was a member of a partnership at the time of his decease, the surviving partner must in no case be appointed administrator of his estate. This section shall apply to the relatives of the previously deceased spouse of decedent when entitled to succeed to some portion of the estate under subdivision 8 of section 402 of the Civil Code. Sec. 710. Relatives of whole blood preferred to half blood.—Relatives of whole blood entitled to preference. Of several persons claiming and equally entitled to administer, relatives of the whole blood must be preferred to those of the half blood. Sec. 711. Indiscretion of court to appoint administrator, when.—Discretion in court with respect to parties equally eligible, etc. When there are several persons equally entitled to the administration, the court may grant letters to one or more of them; and when a creditor is claiming letters the court may, in its discretion, at the request of another creditor, grant letters to any other person legally competent. Sec. 712. When minor or incompetent entitled, who appointed administrator.—When minor or incompetent entitled. If any person entitled to administration is a minor, or an incompetent person, letters must be granted to his or her guardian, or any other person entitled to letters of administration, in the discretion of the court. Sec. 713. Who are incompetent to act as administrators.— NoPersons incompetent to act. person is competent or entitled to serve as administrator or administratrix who is: 1. Under the age of majority. 2. Not a bona fide resident of the Canal Zone. 3. Convicted of an infamous crime. 4. Adjudged by the court incompetent to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity. Sec. 714. Married woman may be administratrix.—Married woman as administratrix. A married woman may be appointed administratrix. When an unmarried woman appointed administratrix marries, her authority is not thereby extinguished. petition and contest for letters and action thereon Sec. 715. Petition for letters, how made.— Petitions for letters ofPetition for. administration must be in writing, signed by the applicant or his counsel, and filed with the clerk of the court, stating the facts essential to give the court jurisdiction of the case, and when known to the applicant, he must state the names, ages, and residences of the heirs of the decedent, and the value and character of the property. If the jurisdictional facts exist, and are proved at the hearing but are not fully set forth in the petition, the decree or order of administration and subsequent proceedings are not void on account of such want of jurisdictional averments. Sec. 716. Letters of administration, when granted.— LettersGranting of. of administration may be granted by the court at any time appointed 1032for the hearing of the application, or at any time to which the hearing is continued or postponed. Sec. 717. Date for and notice of hearing.—Notice of hearing on. When a petition praying for letters of administration is filed, the clerk of the court must set the petition for hearing by the court, and give notice thereof by causing a notice to be posted at the courthouse which notice shall contain the name of the decedent, the name of the applicant, and the time at which the application will be heard. Such notice must be given at least ten days before the hearing. The clerk shall cause similar notice to be mailed to the heirs of the decedent named in the petition, at least ten days before the hearing, addressed to them at their respective post-office addresses, as set forth in the petition, otherwise at the place where the proceedings are pending. Sec. 718. Contesting application.—Contest of. Any person interested may contest the petition, by filing written opposition thereto, on the ground of the incompetency of the applicant, or may assert his own rights to the administration and pray that letters be issued to himself. In the latter case the contestant must file a petition and give the notice required for an original petition, and the court must hear the two petitions together. Sec. 719. Hearing of application.—Hearing of application. On the hearing, it being first proved that notice has been given as herein required, the court must hear the allegations and proofs of the parties, and order the issuing of letters of administration to the party best entitled thereto. Sec. 720. Evidence of notice.—Evidence of notice. An entry in the minutes of the court, that the required proof was made and notice given, shall be conclusive evidence of the fact of such notice. Sec. 721.— Grant to any applicant.—Grant to any applicant. Letters of administration must be granted to any applicant, though it appears that there are other persons having better rights to the administration, when such persons fail to appear and claim the issuing of letters to themselves. Sec. 722. What proofs must be made before granting letters of administration.—Proofs before grant of letters. Before letters of administration are granted on the estate of any person who is represented to have died intestate, the fact of his dying intestate must be proved by the testimony of the applicant or others: and the court may also examine any other person concerning the time, place, and manner of his death, the place of his residence at the time, the value and character of his property, and whether or not the decedent left any will, and may compel any person to attend as a witness for that purpose. Sec. 723. Letters may be granted to others than those entitled.—Letters granted to other than those entitled. Administration may be granted to one or more competent persons, although not otherwise entitled to the same, at the written request of the person entitled, filed in the court. When the person entitled is a nonresident of the Canal Zone, affidavits, taken ex parte before any officer authorized by the laws of the Canal Zone to take acknowledgment and administer oaths out of the Canal Zone, may be received as prima facie evidence of the identity of the party, if free from suspicion, and the fact is established to the satisfaction of the court. Sec. 724. Requests for special notice of proceedings; giving notices; finding regarding notices.—Requests for special notice of proceedings. At any time after the issuance of letters testamentary or of administration upon the estate of any decedent, any person interested in said estate, whether as heir, devisee, legatee or creditor, or the attorney for any such person may serve upon the executor or administrator, or upon the attorney for the executor or administrator, and file with the clerk of the court wherein administration of such estate is pending, a written 1033request, stating that he desires special notice of any or all of the following mentioned matters, steps or proceedings in the administration of said estate, to wit:
(1)Filing of petitions for sales, leases or mortgages and confirmation of sales of any property of the estate;
(2)Filing of accounts;
(3)Filing of petitions for distribution;
(4)Filing of petitions for partition of any property of the estate. Such request shall state the post-office address of the person making same. Giving or notices.—And thereafter a brief notice of the filing ofGiving of notices. any of such petitions, or accounts, except petitions for sale of perishable property or other personal property which will incur expense or loss by keeping, shall be addressed to such person making such request, or his attorney, at his stated post-office address, and deposited in the post office with the postage thereon prepaid, within two days after the filing of such petition or account; or personal service of such notices may be made on the person making such request or his attorney, within said two days, and such personal service shall be equivalent to such deposit in the post office, and proof of mailing or of personal service must be filed with the clerk before the hearing of such petition or account. Finding regarding notices.—If upon the hearing it shall appearFinding regarding notices. to the satisfaction of the court that said notice has been regularly given, the court shall so find in its order or judgment, and such judgment shall be final and conclusive upon all persons. Sec. 725. United states as a party to estates, proceedings, etc.—United States as party, etc. Where compensation, pensions, insurance or other allowance is made or awarded by the United States Government or a department or bureau thereof, to estates of decedents or to minor or incompetent persons for whom guardians have been appointed, or to their estates, the department or bureau of the United States Government making or awarding such allowance, compensation, pension, or insurance shall have the same right to commence and prosecute actions on executors, administrators, and guardians’ bonds, and shall have the same right to petition the court for appointment or removal of guardians of minor and incompetent persons, and shall have the same right to file exceptions in writing to accounts of executors, administrators, and guardians and to contest same, as is provided in this code for interested parties, heirs at law, and relatives. revocation of letters, and proceedings thereforRevocation of letters, etc. Sec. 726. Revocation of letters of administration.— When lettersProceedings; petition. of administration have been granted to any other person than the surviving husband or wife, child, father, mother, brother, or sister of the intestate, any one of them who is competent, or any competent person at the written request of any one of them, may obtain the revocation of the letters, and be entitled to the administration, by presenting to the court a petition praying the revocation, and that letters of administration may be issued to him. Sec. 727. When petition filed, citation to issue.— When suchCitation to issue. petition is filed, the clerk must, in addition to the notice provided in section 717, issue a citation to the administrator to appear and answer the same at the time appointed for the hearing. Sec. 728. Hearing of petition for revocation.— At the timeHearing of petition. appointed, the citation having been duly served and returned, the court must proceed to hear the allegations and proofs of the parties; 1034and if the right of the applicant is established, and he is competent, letters of administration must be granted to him, and the letters of the former administrator revoked. Sec. 729. Prior rights of relatives entitle them to revoke prior letters.—Assertion of prior rights of relatives. The surviving husband or wife, when letters of administration have been granted to a child, father, brother, or sister of the intestate; or any of such relatives, when letters have been granted to any other of them, may assert his prior right, and obtain letters of administration, and have the letters before granted revoked in the *Ante*, p. 1033.manner prescribed in sections 726 to 728. oaths and bonds of executors and administratorsOaths and bonds, executors and administrators. Sec. 730. Oath of executor or administrator; recording letters.—Oath; recording letters. Before letters testamentary or of administration are issued to the executor or administrator, he must take and subscribe an oath before some officer authorized to administer oaths, that he will perform, according to law, the duties of executor or administrator, which oath must be attached to the letters. All letters testamentary and of administration, with the affidavits and certificates thereon, must be forthwith recorded by the clerk of the court, in books to be kept by him in his office for that purpose. Sec. 731. Bond of executor or administrator.—Bond. Every person to whom letters testamentary or of administration are directed to issue, must, before receiving them, execute a bond to the government of the Canal Zone, with two or more sufficient sureties, to be approved by the district court, or the judge thereof. In form the bond must be joint and several, and the penalty shall be in such reasonable sum as the court shall direct. Sec. 732. Conditions of bonds.—Conditions of. The bond must be conditioned that the executor or administrator shall faithfully execute the duties of the trust according to law. Sec. 733. Separate bonds, when more than one administrator.—Separate bonds, when more than one administrator, required. When two or more persons are appointed executors or administrators, the district court, or the judge thereof, must require and take a separate bond from each of them. Sec. 734. Several recoveries may be had on same bond.—Several recoveries or same bond. The bond shall not be void upon the first recovery, but may be sued and recovered upon from time to time, by any person aggrieved, in his own name, until the whole penalty is exhausted. Sec. 735. Justification of sure ties. Justification of sureties.—Justification of sureties. In all cases where bonds or undertakings are required to be given, under chapters 23 to 36, the sureties must justify thereon in the same manner and in like amounts as required by section 533, and the certificate thereof must be attached to and filed with the bond or undertaking. All such bonds and undertakings must be approved by the judge of the district court before being filed. Upon filing, the clerk shall thereupon enter in the register of actions the date and amount of such bond or undertaking and the name or names of the surety or sureties thereon. In the event of the loss of such bond or undertaking, such entries so made shall be prima facie evidence of the due execution of such bond or undertaking as required by law. Sec. 736. Citation and requirements of judge on deficient bond; additional security.—Citation and requirements of judge on deficient bond. Before the judge approves any bond required under chapters 23 to 36, and after its approval, he may, of his own motion, or upon the motion of any person interested in the estate, supported by affidavit that the sureties, or some one or more of them, are not worth as much as they have justified to, order a citation to issue requiring such sureties to appear before him at 1035a designated time and place, to be examined touching their property and its value; and the judge must, at the same time, cause a notice to be issued to the executor or administrator requiring his appearance on the return of the citation; and on its return he may examine the sureties and such witnesses as may be produced, touching the property of the sureties and its value; and if, upon such examination, he is satisfied that the bond is insufficient, he must require sufficientAdditional security required. additional security. Sec. 737. Right ceases when sufficient security not given.—Upon failure to give sufficient security, right to cease. If sufficient security is not given within the time fixed by the judge’s order, the right of such executor or administrator to the administration shall cease, and the person next entitled to the administration on the estate, who will execute a sufficient bond, must be appointed to the administration. Sec. 738. When bond may be dispensed with.— When it isBond dispensed with. expressly provided in the will that no bond shall be required of the executor, letters testamentary may issue without any bond, unless the court, for good cause, require one to be executed; but the executor may at any time afterwards (if it appear from any cause necessary or proper) be required to file a bond, as in other cases. Sec. 739. Petition showing failing sureties and asking for further bonds.—Failing sureties; further bonds. Any person interested in an estate may, by verified petition, represent to the district court, or the judge thereof, that the sureties of the executor or administrator thereof have become, or are becoming, insolvent, or that they have removed, or are about to remove, from the Canal Zone, or that from any other cause the bond is insufficient, and ask that further security be required. Sec. 740. Citation to executor, etc., to show cause against such application.—Citation to executor, etc., to show cause against application. If the court, or the judge thereof, is satisfied that the matter requires investigation, a citation must be issued to the executor or administrator requiring him to appear, at a time and place to be therein specified, to show cause why he should not give further security. The citation must be served personally on the executor or administrator, at least five days before the return-day. If he has absconded, or can not be found, it may be served by leaving a copy of it at his place of residence, or by such publication as the court, or the judge thereof, may order. Sec. 741. Further security may be ordered.— On the return ofFurther security ordered. the citation, or at such other time as the judge may appoint, he must proceed to hear the proofs and allegations of the parties. If it satisfactorily appears that the security is, from any cause, insufficient, he may make an order requiring the executor or administrator to give further security, or to file a new bond in the usual form within a reasonable time, not less than five days. Sec. 742. Neglecting to obey order.—Neglect to obey order, letters revoked. If the executor or administrator neglects to comply with the order within the time prescribed, the judge must, by order, revoke his letters, and his authority must thereupon cease. Sec. 743. Suspending powers of executor, and so forth.— WhenSuspension of executor’s, etc., powers. a petition is presented praying that an executor or administrator be required to give further security, or to give bond, where, by the terms of the will, no bond was originally required, and it is alleged, on oath, that the executor or administrator is wasting the property of the estate, the judge may, by order, suspend his powers until the matter can be heard and determined. Sec. 744. Further security ordered without application of party in interest.—Further security on initiative of judge. When it comes to his knowledge that the bond of any executor or administrator is from any cause insufficient, the judge, without any application, must cause him to be cited to appear 1036and show cause why he should not give further security, and must proceed thereon as upon the application of any person interested. Sec. 745. Release of sureties.—Release of sureties.. When a surety of any executor or administrator desires to be released from responsibility on account of future acts, he may make application to the district court, or the judge thereof, for relief. The court or judge must cause a citation to the executor or administrator to be issued, and served personally, requiring him to appear at a time and place, to be therein specified, and to give other security. If he has absconded, left, or removed from the Canal Zone, or if he can not be found, after due diligence and inquiry, service may be made as provided in section 740. Sec. 746. New sureties.—New sureties. If new sureties be given to the satisfaction of the judge, he may thereupon make an order that the sureties who applied for relief shall not be liable on their bond for any subsequent act, default, or misconduct of the executor or administrator. Sec. 747. Neglect to give new sureties forfeits letters.—Neglect to give, to act as forfeiture of letters. If the executor or administrator neglects or refuses to give new sureties, to the satisfaction of the judge, on the return of the citation, or within such reasonable time as the judge shall-allow, unless the surety making the application shall consent to a longer extension of time, the court or judge must, by order, revoke his letters. Sec. 748. Applications to be determined at anytime.—Time of acting on applications. The applications authorized by the nine preceding sections of this chapter may be heard and determined at any time. All orders made therein must be entered upon the minutes of the court. Sec. 749. Liability on bond.—Liability on bond. The liability of principal and sureties upon the bond of any executor, administrator, or guardian, is in all cases to pay in the kind of money or currency in which the principal is legally liable. special administrators, and their powers and dutiesSpecial administrators; powers and duties.When appointed. Sec. 750. Special administrator, when appointed.— When there is delay in granting letters testamentary or of administration from any cause, or when such letters are granted irregularly, or no sufficient bond is filed as required, or when no application is made for such letters, or when an executor or administrator dies, or is suspended, or removed, the district court or judge, must appoint a special administrator to collect and take charge of the estate of the decedent in whatever division the same may be found, and to exercise such other powers as may be necessary for the preservation of the estate; or he may direct the public administrator to take charge of the estate. Sec. 751. Appointment of—Issuance of letters.—Appointment of, issuance of letters. The appointment may be made at any time upon such notice to such of the persons interested in the estate as the court may deem reasonable. After the person appointed has given bond, the clerk must issue special letters of administration to such person. Sec. 752. Preference in appointment.—Preference in appointment. In making the appointment of a special administrator the court must give preference to the person entitled to letters testamentary, or of administration. Sec. 753. Bond and oath of.—Bond and oath. Before any letters issue to any special administrator, except to the public administrator, he must give bond in such sum as the court or judge may direct, with sureties to the satisfaction of the court or judge, conditioned for the faithful performance of his duties; and he must take the usual oath, and have the same indorsed on his letters. Sec. 754. Powers and duties.— The special administrator must collect and preserve for the executor or administrator, all the goods, 1037chattels, debts, and effects of the decedent, all incomes, rents, issues, and profits, claims, and demands of the estate; must take the charge and management of, enter upon, and preserve from damage, waste, and injury, the real estate, and for any such and all necessary purposes may commence and maintain or defend suits and other legal proceedings as an administrator; he may sell such perishable property as the court may order to be sold, and exercise such other powers as are conferred upon him by his appointment, but except when appointed with the powers, duties, and obligations of a general administrator, as hereinafter provided, he is not liable to an action by any creditor on a claim against the decedent. When a special administrator is appointed pending determinationSpecial administrator, pending court action on estate.Powers, duties, etc., of. of a contest of a will instituted prior to the probate thereof, or pending an appeal from an order appointing, suspending, or removing an executor or administrator, such special administrator shall have the same powers, duties, and obligations as a general administrator, and the letters of administration issued to him shall recite that such special administrator is appointed with the powers of a general administrator. Sec. 755. When letters test amentary or of administration are granted, special administrator’s powers cease.—Termination of power, etc. When letters testamentary or of administration on the estate of the decedent have been granted, the powers of the special administrator cease, and he must forthwith deliver to the executor or administrator all the property and effects of the decedent in his hands; and the executor or administrator may prosecute to final judgment any suit commenced by the special administrator. Sec. 756. Account.— The special administrator must render anAccount to be rendered. account on oath of his proceedings in like manner as other administrators are required to do. His fees and those of his attorney shall be fixed by the court:Fees of. *Provided*, *however*, That the total fees paid to the special administrator*Proviso*.Limitation on.*Post*, p. 1058. and executor, or to the special administrator and general administrator of an estate must not, together, exceed the sums provided for in section 858, including the further allowance therein provided; and that the total fees paid to the attorneys both of the special administrator and executor, or of the special administratorTotal fees allowable.Limitation on.*Post*, p. 1059. and general administrator, must not, together, exceed the sums provided for in section 859, including the further allowance therein provided. And when the same person does not act as both special administratorDivision of. and executor, or as special administrator and general administrator, of the estate, such fees shall be divided between the special administrator and executor, or between the special administrator and general administrator of the estate, in such proportions as the court shall determine to be just and reasonable. And when the same attorney does not act for both the specialAttorney’s fees. administrator and executor, or for the special administrator and general administrator of the estate, such fees shall be divided between the attorneys in such proportion as the court shall determine to be just and reasonable. Sec. 757. Payment of secured debts by special administrators.—Payment of secured debts. If it shall appear by the verified petition of any special administrator, or other person interested in any estate in the charge of any special administrator, that any of the property of said estate is subject to any mortgage, lien or deed of trust, to secure the payment of money, and that any amount so secured, either principal or interest, is past due and unpaid; that the holder of the security threatens or is about to enforce or foreclose the same and that the 1038said property exceeds in value the amount of the entire obligation thereon, and an order is asked directing or permitting said special administrator to pay all or any part of the amount so secured, the court or judge shall fix a time for the hearing of said petition and shall direct notice of not less than ten days to be given by posting in three public places and by personal service on all parties who By court order.have appeared or their attorneys. At the time so appointed, if the allegations of such petition shall be proven to the satisfaction of the court and it shall appear to be for the best interests of said Interest.estate, the court may order the special administrator to pay interest or other portions or the whole of the secured debt, and, in its discretion, may direct the special administrator to take proceedings to secure funds for such purpose. Any such order for payment of interest may also direct that interest not yet accrued be paid as it becomes due and such order shall remain in effect and cover such future interest until and unless thereafter for good cause set aside or modified by the court upon similar petition and notice to that hereinabove provided. wills found after letters of administration granted and miscellaneous provisionsWill found subsequently. Sec. 758. Preexisting grant of letters, when revoked.—Letters revoked on admission to probate. Upon the admission to probate of a will after a grant of letters of administration on the ground of intestacy, or upon the admission to probate of a later will than the one before admitted to probate, the preexisting grant of letters testamentary or of administration must be revoked, and the administrator or executor whose grant of authority is thus terminated must render an account of his administration within such time as the court may direct. Sec. 759. Power of executor in such a case.—Powers of executor. In such case, the executor or the administrator with the will annexed is entitled to demand, sue for, recover, and collect all the rights, goods, chattels, debts, and effects of the decedent remaining unadministered, and may prosecute to final judgment any suit commenced by the administrator before the revocation of his letters of administration. Sec. 760. Remaining administrator or executor to continue when his colleagues are disqualified.—Remaining administrator or executor. In case any one of several executors or administrators, to whom letters are granted, dies, becomes lunatic, is convicted of an infamous crime, or otherwise becomes incapable of executing the trust; or in case the letters testamentary or of administration are revoked or annulled, with respect to any one executor or administrator, the remaining executor or administrator must proceed to complete the execution of the will or administration. Sec. 761. Who to act when all acting are incompetent.—When no executor, etc., competent. If all such executors or administrators die or become incapable, or the power and authority of all of them is revoked, the court must issue letters of administration, with the will annexed or otherwise, to the widow or next of kin, or others, in the same order and manner as is directed in relation to original letters of administration. The administrators so appointed must give bond in the like penalty, with like sureties and conditions, as hereinbefore required of administrators, and shall have the like power and authority. Sec. 762. Executor or administrator may resign, when; court to appoint successor; liability of outgoer.—Resignation. Any executor or administrator may, at any time, by writing, filed in the district court, resign his appointment, having first settled his accounts and delivered up all the estate to the person whom the court shall appoint 1039to receive the same. If, however, by reason of any delays in such settlement and delivery up of the estate, or for any other cause, the circumstances of the estate or the rights of those interested therein require it, the court may, at any time before settlement of accounts and delivering up of the estate is completed, revoke the letters of such executor or administrator, and appoint in his stead an administrator,Appointment of successor. either special or general, in the same manner as is directed in relation to original letters of administration. The liability of theLiability of person resigning. outgoing executor or administrator, or of the sureties on his bond, shall not be in any manner discharged, released, or affected by such appointment or resignation. Sec. 763. All acts of executor, and so forth, valid until his power is revoked.—Validity of executor’s acts, etc. All acts of an executor or administrator, as such, before the revocation of his letters testamentary or of administration, are as valid, to all intents and purposes, as if such executor or administrator had continued lawfully to execute the duties of his trust. Sec. 764.— Transcript of court minutes to be evidence.— A transcriptCourt minutes as evidence. from the minutes of the court, showing the appointment of any person as executor or administrator, together with the certificate of the clerk, under his hand and the seal of his court, that such person has given bond and been qualified, and that letters testamentary or of administration have been issued to him and have not been revoked, shall have the same effect in evidence as the letters themselves. disqualification of judgeDisqualification of judge. Sec. 765.— When judge not to act.— No will shall be admittedWhen interested party. to probate, or letters testamentary or of administration granted, before any judge who is interested as next of kin to the decedent, or as a legatee or devisee under the will, or when he is named as executor or trustee in the will, or is a witness thereto, or is in any other manner interested or disqualified from acting. removals and suspensions in certain casesRemovals and suspensions. Sec. 766. Suspension of powers of executor or administrator.—For fraud, waste, etc. Whenever the district judge has reason to believe from his own knowledge, or from credible information, that any executor or administrator has wasted, embezzled, or mismanaged, or is about to waste or embezzle the property of the estate committed to his charge, or has committed or is about to commit a fraud upon the estate, or is incompetent to act, or has removed or is about to remove from the Canal Zone, or has wrongfully neglected the estate, or has long neglected to perform any act as such executor or administrator, he must, by an order entered upon the minutes of the court, direct such executor or administrator to be cited to appear and show cause why his letters should not be revoked, and may also suspend the powers of such executor or administrator, until the matter is investigated. Sec. 767.— Revocation of letters.— If the executor or administratorRevocation of letters for cause. fails to appear in obedience to the citation, or, if he appears, and the court is satisfied from the evidence, that there exists cause for his removal, his letters must be revoked. Sec. 768. Any party interested may appear on hearing.— At theHearing, interested parties may appear. hearing, any person interested in the estate may appear and file his allegations in writing, showing that the executor or administrator should be removed; to which the executor or administrator may demur or answer, as hereinbefore provided. The issues raised must be heard and determined by the court.1040 Sec. 769. Notice to absconding executors and administrators.—Notice to absconding executors, etc. If the executor or administrator has absconded or conceals himself, or has removed or absented himself from the Canal Zone, notice maybe given him of the pendency of the proceedings by publication, in such manner as the court may direct, and the court may proceed upon such notice as if the citation had been personally served. Sec. 770. May compel attendance.—Power to compel attendance of executor, etc. In the proceedings authorized by the preceding sections of this subchapter, for the removal of an executor or administrator, the court may compel his attendance by attachment, and may compel him to answer questions, on oath, touching his administration, and, upon his refusal so to do, may commit him until he obey, or may revoke his letters, or both. CHAPTER 26.— INVENTORY AND COLLECTION OF EFFECTS OF DECEDENTSINVENTORY AND COLLECTION OF EFFECTS OF DECEDENTS. inventory, appraisement, and possession of estateInventory, appraisement, possession of estate.Return of inventory and appraisement to court. Sec. 771. Inventory and appraisement to be returned.— Every executor or administrator must make and return to the court, within thirty days after his appointment, a true inventory, and, also, if the court so direct, an appraisement of all the estate of the decedent which has come to his possession or knowledge. Sec. 772. Appraisers of estates of deceased persons.—Appointment of appraisers. To make the appraisement, the court or judge must appoint three disinterested persons, any two of whom may act. Compensation.Each of said appraisers is entitled to receive from each estate he appraises, as compensation for his services, such sum as may be fixed by the court or judge. Account of services, etc.The appraisers or appraiser must, with the inventory, file a verified account of their or his services and disbursements. Ineligible parties.No clerk or deputy, nor any person related by consanguinity or affinity to or connected by marriage with, or being a partner or employee of the judge of the court, shall be appointed or shall be competent to act as appraiser in any estate, or matter or proceeding pending before said judge or in said court. Sec. 773. Oath of appraisers; inventory must show what.—Oath of appraisers. Before proceeding to the execution of their duty, the appraisers must take and subscribe an oath, to be attached to the inventory, that they will truly, honestly, and impartially appraise the property exhibited to them, according to the best of their knowledge and ability. Inventory.They must then proceed to estimate and appraise the property; each item of property must be set down separately, with the value thereof in dollars and cents in figures, opposite the items respectively. Contents.The inventory must contain all the estate of the decedent, real and personal, a statement of all debts, bonds, mortgages, notes, and other securities for the payment of money belonging to the decedent, specifying the name of the debtor in each debt or security, the date, the sum originally payable, the indorsement thereon (if any), with their dates, and the sum which, in the judgment of the appraisers, may be collected on each debt or security; and a statement of the interest of the decedent in any partnership of which he was a member, to be appraised as a single item. Interest of decedent in property.The inventory must also show, so far as the same can be ascertained by the executor or administrator, what portion of the property is community property, and what portion is the separate property of the decedent. Sec. 774. Inventory to account for moneys; if all money, no appraisement necessary.—Inventory to accounl for moneys. The inventory must also contain an account of all moneys belonging to the decedent which have come 1041to the hands of the executor or administrator, and if none, the fact must be so stated in the inventory. Sec. 775. Effect of naming a debtor executor.— The naming ofEffect of naming debtor executor. a person as executor does not thereby discharge him from any just claim which the testator has against him, but the claim must be included in the inventory, and the executor is liable for the same, as for so much money in his hands, when the debt or demand becomes due. Sec. 776. Discharge or be quest of debt against executor.— TheDischarge, etc., of debt against. discharge or bequest in a will, of any debt or demand of the testator against the executor named, or any other person, is not valid againstNot discharge as against creditors. the creditors of the decedent, but is a specific bequest of the debt or demand. It must be included in the inventory, and, if necessary, applied in the payment of the debts. If not necessary for that purpose, it must be paid in the same manner and proportion as other specific legacies. Sec. 777. To make oath to inventory.— The inventory must beInventory must be signed. signed by the appraisers, if any there be, and the executor or administrator must take and subscribe an oath, before an officerOath by executor, etc., as to contents. authorized to administer oaths, that the inventory contains a true statement of all the estate of the decedent which has come to his knowledge and possession, and particularly of all money belonging to the decedent, and of all just claims of the decedent against the affiant. The oath must be indorsed upon or annexed to the inventory. Sec. 778. Letters may be revoked for neglect of administrator.—Revocation of letters for neglect. If an executor or administrator neglects or refuses to return the inventory within the time prescribed, or within such further time, not exceeding two months, which the court or judge shall, for reasonable cause, allow, the court may, upon notice, revoke the letters testamentary or of administration, and the executor or administrator is liable on his bond for any injury to the estate, or any person interested therein, arising from such failure. Sec. 779. Inventory of after discovered property.— WheneverAfter discovered property. property not mentioned in an inventory that is made and filed, comes to the possession or knowledge of an executor or administrator,Appraisal and inventory. he must cause the same to be appraised in the manner prescribed in this subchapter, and an inventory thereof to be returned within two months after the discovery; and the making of such inventory may be enforced, after notice, by attachment or removal from office. Sec. 780. Executor entitled to possess all of estate of decedent.—Possession of estate. The executor or administrator is entitled to the possession of all the real and personal estate of the decedent, and to receive the rents and profits of the real estate until the estate is settled or until delivered over by the order of the court to the heirs or devisees; and must keep in good tenantable repair all houses, buildings and fixtures thereon which are under his control. After the expiration of the time for the presentation of claims, he is not entitled to recover the possession of any property of the estate from any heir, who has succeeded to the property in his possession or from any devisee, or legatee, to whom the property has been devised or bequeathed, or from the assignee of any such heir, devisee, or legatee, unless he proves that the same is necessary for the payment of debts or legacies, or of expenses of administration already accrued, or for distribution to some other heir, devisee, or legatee entitled thereto. The heirs or devisees may themselves, or jointly with the executor or administrator, maintain an action for the possession of the real estate, or for the purpose of quieting title to the same, 1042against anyone except the executor or administrator; but this section shall not be so construed as requiring them so to do. Sec. 781. Executor or administrator to deliver real estate to heirs or devisees.—Surrender of real estate. Unless it satisfactorily appear to the court that the rents, issues, and profits of the real estate for a longer period are necessary to be received by the executor or administrator, wherewith to pay the debts of the decedent, or that it will probably be necessary to sell the real estate for the payment of such debts, the court at the end of the time limited for the presentation of claims against the estate, must direct the executor or administrator to deliver possession of all the real estate to the heirs at law or devisees. embezzlement and surrender of property of estateEmbezzlement and surrender of property of estate. Sec. 782. Embezzling effects of a decedent.—Liability of embezzler. If any person embezzles, conceals, smuggles, or fraudulently disposes of any of the moneys, goods, chattels, or effects of a decedent, he is chargeable therewith, and liable to an action by the executor or administrator of the estate for double the value of the property so embezzled, concealed, smuggled, or fraudulently disposed of, to be recovered for the benefit of the estate. Sec. 783. Citation to person suspected of embezzlement, concealment, and so forth, of property.—Citation of person suspected. If any executor, administrator, or other person interested in the estate of a decedent, complains to the district court or judge, on oath, that any person is suspected to have concealed, embezzled, smuggled, or fraudulently disposed of any moneys, goods, or chattels of the decedent, or has in his possession or knowledge any deeds, conveyances, bonds, contracts, or other writings, which contain evidences of or tend to disclose the right, title, interest, or claim of the decedent to any real or personal estate, or any claim or demand, or any lost will, the said court or judge may cite such person to appear before such court, and may examine him on oath upon the matter of such complaint. But if he appears and is found innocent, his necessary expenses must be allowed him out of the estate. Sec. 784. Refusal to obey citation, penalty for, and for embezzlement; may be compelled to disclose by imprisonment; liable for double damages.—Penalty for failure to obey. If the person so cited refuses to appear and submit to an examination, or to answer such interrogatories as may be put to him, touching the matters of the complaint, the court may, by warrant for that purpose, commit him to jail, there to remain in close custody until he submits to the order of the court Discovery of property.or is discharged according to law. If, upon such examination, it appears that he has concealed, embezzled, smuggled, or fraudulently disposed of any moneys, goods, or chattels of the decedent, or that he has in his possession or knowledge any deeds, conveyances, bonds, contracts, or other writings containing evidences of or tending to disclose the right, title, interest, or claim of the decedent to any real or personal estate, claim, or demand, or any lost will of the decedent, the court may make an order requiring such person to disclose his knowledge thereof to the executor or administrator, and may commit him to jail, there to remain until the order is complied with, or he is discharged according to law; and all such interrogatories and answers must be in writing, signed by the party examined, and filed in the court. In addition to the examination of the party, witnesses may be produced and examined on either side. Sec. 785. Persons intrusted with estate of decedent may be cited to account.—Citation of persons intrusted with estate. The district court or judge, upon the complaint, on oath, of any executor or administrator, may cite any person who 1043has been intrusted with any part of the estate of the decedent to appear before such court, and require him to render a full account, on oath, of any moneys, goods, chattels, bonds, accounts, or other property or papers belonging to the estate, which have come to his possession in trust for the executor or administrator, and of his proceedings thereon; and if the person so cited refuses to appear and render such account, the court may proceed against him as provided in the preceding section. CHAPTER 27.— PROVISION FOR THE SUPPORT OF THE FAMILYSUPPORT OF FAMILY OF DECEDENT. “Sec. 786. Widow and minor children may remain in possession of furniture and apparel.—Possession of furniture and apparel. When a person dies leaving a widow or minor children, the widow or children, until letters are granted and the inventory is returned, are entitled to remain in possession of all the wearing apparel of the family, and of all the household furniture of the decedent, and are also entitled to a reasonable provision for their support, to be allowed by the district court or judge. Cross Reference Clothing of decedent and household effects not exceeding in value $2,500 to go to surviving wife without administration, see Civil Code, section 418. *Post*, p. 1181. Sec. 787. All property exempt from execution to be set apart for use of family.—Property exempt from execution set aside for, on petition. Upon the return of the inventory, or at any subsequent time during the administration, the court may, on petition therefor, set apart for the use of the surviving husband or wife, or, in case of his or her death, to the minor children of the decedent, all the property exempt from execution. Sec. 788. Notice of hearing; to whom sent.— When the petitionHearing on, notice. mentioned in section 787 is filed the clerk of the court must set the petition for hearing by the court and give notice thereof by causing notices to be posted in at least three public places in the division, one of which must be at the place where the court is held, containing the name of the decedent, the name of the petitioner, the nature of the application, and the time at which the same will be heard. Such notice must be given at least ten days before the hearing, and a copy thereof must be mailed at least ten days before the day appointed for the hearing to the executor or administrator, if he be not the petitioner, and to any person named as coexecutor or coadministrator not petitioning, and upon the attorney of any person who has appeared or given notice of appearance (by an attorney) in the estate as heir, legatee, devisee, next of kin, or creditor, or as otherwise interested, addressed to them at their places of residence, or office, if known, and if not known, then to the place where the proceedings are pending. Proof of such posting and mailing must be made at the hearing. Sec. 789. Court may make extra allowance.— If the property setExtra allowance. apart is insufficient for the support of the widow and children, or either, the court or judge must take such reasonable allowance out of the estate as shall be necessary for the maintenance of the family, according to their circumstances, during the progress of the settlement of the estate, which, in case of an insolvent estate, must not be longer than one year after granting letters testamentary or of administration. Sec. 790. Payment of allowance.— Any allowance made by thePayment of, preferential. court or judge, in accordance with the provisions of this chapter, must be paid in preference to all other charges; except funeral 1044charges and expenses of administration; and any such allowance, whenever made, may, in the discretion of the court or judge, take effect from the death of the decedent. Sec. 791. Property set apart, how apportioned.—Apportionment of property. When property is set apart to the use of the family, in accordance with the provisions of this chapter, such property, if the decedent left a surviving spouse and no minor child, is the property of such spouse. If the decedent left also a minor child or children, the one half of such property belongs to the surviving spouse, and the remainder to the child, or in equal shares to the children, if there are more than one. If there is no surviving spouse, the whole belongs to the minor child or children. Sec. 792. Administration of estate not exceeding $1,000 in value.—Administration when estate does not exceed $1,000. If a deceased person leave a widow or minor child or minor children and upon the return of the inventory of the estate of such deceased person it shall appear to the court or judge by the verified petition of the personal representative of such deceased person or his widow or of the guardian of his minor children or of any of them that the net value of the whole estate of said deceased over and above all liens or encumbrances of record at the date of the death of said deceased does not exceed the sum of $1,000, not including the property*Post*, p. 1181. excepted from administration under section 418 of the Civil Code, the court, or judge, shall, by order, require all persons interested to appear on a day fixed to show cause why the whole of said estate should not be assigned for the use and support of the family of the deceased. Notice of hearing.*Ante*, p. 1043.Notice of hearing.—Notice thereof shall be given and proceedings had in the same manner as provided in section 788. Proceedings.Proceedings on hearing.—If upon the hearing, the court finds that the net value of the estate over and above all liens or encumbrances of record at the date of the death of said deceased does not exceed the sum of $1,000, not including the property excepted from administration under section 418 of the Civil Code, it shall, by decree for that purpose, assign to the widow of the deceased, if there be a widow, or if there be no widow, then to the minor children of the deceased, if there be minor children, the whole of the estate, subject to whatever mortgages, liens, or encumbrances there may be upon said estate at the time of the death of said deceased, after the payment of the expenses of the last illness of the deceased, funeral charges, and expenses of administration, and the title thereof shall vest absolutely in such widow, if there is a widow, or if there is no widow, in the minor children or child, subject to whatever mortgages, liens or encumbrances there may be upon said estate at the time of the death of the deceased, and there must be no further proceedings in the administration, unless further estate be discovered. Sec. 793. When all property to go to children.—When all property to go to children. If the widow has a maintenance derived from her own property equal to the portion set apart to her by the preceding sections of this chapter, the whole property so set apart must go to the minor children. CHAPTER 28.— CLAIMS AGAINST ESTATECLAIMS AGAINST ESTATE. Sec. 794. Notice to creditors of decedents’ estates.—Notice to creditors, by publication. Every executor or administrator must, immediately after his letters are issued, cause to be published in some newspaper of general circulation in the Canal Zone, a notice to the creditors of the decedent, requiring all persons having claims against said decedent to file them, with the necessary vouchers, in the office of the clerk of the court, or to exhibit them, with the necessary vouchers, to the executor or administrator, at the place of his residence or business to be specified in the notice. 1045Such notice must be published not less than once a week for four weeks. In case such executor or administrator resigns, or is removed, before the time expressed in the notice, his successor must give notice only for the unexpired time allowed for such filing or presentation: *Provided*, *however*, That the publication may in the discretion of*Proviso*.May be dispensed with, in discretion of court. the court, be dispensed with, in which event the court may direct notice by posting in three public places in the Canal Zone for a period of four weeks. Sec. 795. Time expressed in the notice.— The time expressed inTime expressed in notice. the notice must be ten months after its first publication, when the estate exceeds in value the sum of $10,000, and four months when it does not. Sec. 796. Filing copy of printed notice to creditors.— WithinCopy of notice to be filed. thirty days after the first publication of notice to creditors, the executor or administrator must file or cause to be filed in the court a copy of said notice to creditors accompanied by a statement, setting forth the date of the first publication thereof and the name of the newspaper in which the same is printed, or the dates and places of posting, if the posting of notices be directed. Sec. 797. Recording decree of notice to creditors.— After theRecording decree of notice. notice is given, as required by section 794, a copy thereof, with the affidavit of due publication or posting, must be filed and upon such affidavit or other testimony to the satisfaction of the court, an order or decree showing that due notice to creditors has been given, and directing that such order or decree be entered in the minutes, must be made by the court. Sec. 798. Claims not filed are barred.— All claims arising uponUnfiled claims barred. contracts, whether the same be due, not due, or contingent, and all claims for funeral expenses and expenses of the last sickness must be filed or presented within a time limited in the notice, and any claim not so filed or presented is barred forever: *Provided*, *however*, That*Proviso*.Claimants without notice. when it is made to appear by the affidavit of the claimant to the satisfaction of the court, or judge, that the claimant had no notice as provided in this chapter, by reason of being out of the Canal Zone, it may be filed or presented at any time before a decree of distribution is entered. A brief description of every claim filed must be entered by theDescription of claim. clerk in the register, showing the name of the claimant, the amount and character of the claim, the rate of interest, if any, and the date of filing. Sec. 799. Claims must be sworn to.— Every claim which is due,Affidavit on, required. when filed with the clerk, or presented to the executor or administrator, must be supported by the affidavit of the claimant, or some one in his behalf, that the amount is justly due, that no payments have been made thereon which are not credited, and that there are no offsets to the same, to the knowledge of the affiant. If the claim be not due when filed or presented, or be contingent, the particulars of such claim must be stated. When the affidavit is made by a person other than the claimant, he must set forth in the affidavit the reason why it is not made by the claimant. The oath may be taken before any officer authorized to administer oaths. The executor or administrator may also require satisfactory vouchers or proofs to be produced in support of the claim. No greater rate of interest shall be allowed upon any claim after its approval by the administrator or executor and judge than is allowed on judgments obtained in the district court. Sec. 800. Claims to be allowed or rejected.— When a claim,Filing of. accompanied by the affidavit required in this chapter, has been filed with the clerk, the executor or administrator must allow or reject 1046it, and his allowance or rejection thereof must be in writing and Presentation of allowed claim to court.filed with the clerk. If the executor or administrator so allow the claim after filing, the clerk must, immediately after the filing of such allowance, present the claim, together with the allowance, to the judge, and must at the time of such presentation indorse on the Action by judge.claim the date thereof. The judge must indorse upon the claim so Procedure when claim presented to executor, etc., before filing.filed his allowance or rejection, with the date thereof. When a claim, accompanied by the affidavit required in this chapter, is presented to the executor or administrator before filing, he must indorse thereon his allowance or rejection, with the day and date thereof. If he allows the claim so presented, it must be presented to the judge for his approval, who must in the same manner indorse upon it his allowance or rejection, and, if allowed, it must, within thirty days thereafter, be filed with the clerk. Failure of executor, etc., to act.Refusal or neglect of executor to allow or reject claim.— If, where a claim has been filed without presentation, the executor or administrator refuse or neglect to file such allowance or rejection for ten days after the claim has been filed, or if, where a claim has been presented before filing, the executor or administrator refuse or neglect to indorse such allowance or rejection for ten days after the claim has been presented to him, or if the judge refuse or neglect to indorse such allowance or rejection for ten days after the claim has been presented to him, such refusal or neglect may, at the option of the claimant, be deemed equivalent to a rejection on the tenth day; and if the presentation be made before filing by a notary, the certificate of such notary, under seal, shall be prima facie evidence of such presentation and the date thereof. Action on, when filed after expiration of time.Acting on claim after expiration of time to present.—If the claim be filed with the clerk, or presented to the executor or administrator, before the expiration of the time limited for the filing or presentation of claims, the same is filed or presented in time, though acted upon by the executor or administrator, and by the judge, after the expiration of such time. Payable in particular kind of money.Claim payable in particular kind of money.—If the claim is payable in a particular kind of money or currency, it shall, if allowed, be payable only in such money or currency. Effect of allowance.Effect of allowance.—Every claim allowed by the executor or administrator and approved by the judge shall be ranked among the acknowledged debts of the estate, to be paid in due course of administration. Entry of date of allowance.Entry of date of allowance.—The dates of allowance of every such claim, together with the amount allowed, must be entered in the register by the clerk after the allowance thereof by the judge. Sec. 801.— Original instrument need not be filed with claim.—Original instrument need not be filed. If the claim be founded on a bond, bill, note, or any other instrument,Verified copies. the original need not be filed or presented, but a verified copy of such instrument with all indorsements must be attached to the statement of the claim and filed therewith, and the original instrument must be exhibited, if demanded by the executor or administrator or judge, unless it be lost or destroyed, in which case the claimant must accompany his claim when filed or presented by his affidavit, containing a copy or particular description of such instrument, and stating its loss or destruction. Mortgages and liens.If the claim, or any part thereof, be secured by a mortgage or other lien which has been recorded in the office of the Registrar of Property, it shall be sufficient to describe the mortgage or lien, and refer to the date, volume, and page of its record.1047 If, in any case, the claimant has left any original voucher in theWithdrawal of original vouchers, etc. hands of the executor or administrator, or suffered the same to be filed with the clerk, he may withdraw the same, when a copy thereof has been already, or is then, attached to his claim. Sec. 802. Rejection of claim against estates.— When a claim isRejection of. rejected either by the executor or administrator, or the judge, written notice of such rejection shall be given by the executor or administrator to the holder of such claim or to the person filing or presenting the same, and the holder must bring suit in the properSuit thereon, must be brought. court against the executor or administrator within three months after the date of service of such notice if the claim be then due or within two months after it becomes due, otherwise the claim shall be forever barred. If the residence of the claimant is not known, and the same shallNotice by filing with clerk. be made to appear to the satisfaction of the court, the court shall by its order require the notice to be served on the claimant by filing with the clerk. Sec. 803. Claims barred by statute.— No claim must be allowed byClaims barred by statute. the executor or administrator, or by the district judge, which is barred by the statute of limitations. When a claim is presented to the judge for his allowance, he may, in his discretion, examine the claimant and others, on oath, and hear any legal evidence touching the validity of the claim. Allowed claims not affected by statute of limitations.—NoAllowed claims not affected by statute of limitations. claim against any estate which has been filed and allowed, or presented and allowed, is affected by the statute of limitations, pending the proceedings for the settlement of the estate. Sec. 804. Actions on claims.— No holder of any claim againstActions on. an estate shall maintain any action thereon, unless the claim is first filed with the clerk, or presented to the executor or administrator, except in the following case: An action may be brought by any holder of a mortgage or lien to enforce the same against the property of the estate subject thereto, where all recourse against any other property of the estate is expressly waived in the complaint, but no counsel fees shall be recovered in such action unless such claim be so filed or presented. Sec. 805. Time of limitation.— The time during which there shallTime of limitation. be a vacancy in the administration must not be included in any limitations herein prescribed. Sec. 806. Action pending at decedent’s death.— If an action isActions pending at decedent’s death. pending against the decedent at the time of his death, the plaintiff must in like manner file his claim with the clerk, or present it to the executor or administrator for allowance or rejection, authenticated as required in other cases; and no recovery shall be had in the action unless proof be made of such filing or presentation. Sec. 807. Allowance in part.— Whenever the executor or administratorPartial allowance. or the judge shall act upon any claim that may be filed with the clerk, or presented to the executor or administrator, and is willing to allow the same in part, he must state in his allowance the amount he is willing to allow. If the creditor refuse to accept the amount allowed in satisfaction of his claim, he shall recover no costs in any action therefor brought against the executor or administrator, unless he recover a greater amount than that offered to be allowed. Sec. 808. Effect of judgment against executor.— A judgmentEffect of judgment against executor. rendered against an executor or administrator, upon any claim for money against the estate of his testator or intestate, only establishes the claim in the same manner as if it had been allowed by the executor or administrator and the judge; and the judgment must be that 1048the executor or administrator pay, in due course of administration, the amount ascertained to be due. A certified transcript of the original docket of the judgment must be filed among the papers of the estate in court. No execution must issue upon such judgment, nor shall it create any lien upon the property of the estate, or give to the judgment creditor any priority of payment. Sec. 809. Judgment against decedent.—Against decedent. When any judgment has been rendered for or against the testator or intestate in his lifetime, no execution shall issue thereon after his death, except as provided *Ante*, p. 970.in section 355. A judgment against the decedent for the recovery of money must be filed with the clerk, or presented to the executor or administrator, like any other claim. If execution is actually levied upon any property of the decedent before his death, the same may be sold for the satisfaction thereof; and the officer making the sale must account to the executor or administrator for any surplus in his hands. A judgment creditor having a judgment which was rendered against the testator or intestate in his lifetime, may redeem any real estate of the decedent from any sale under foreclosure, or execution, in like manner and with like effect as if the judgment debtor were still living. Sec. 810. Disputed claim may be referred to referee.—Disputed claims referred to referee. If the executor or administrator doubts the correctness of any claim presented to him or filed with the clerk, he may enter into an agreement in writing with the claimant to refer the matter in controversy to some disinterested person, to be approved by the court or judge. Upon filing the agreement and approval of such court or judge, in the office of the clerk of the court, the clerk must enter a minute of the order referring the matter in controversy to the person so selected, or, if the parties consent, a reference may be had in the court; and the report of the referee, if confirmed, establishes or rejects the claim the same as if it had been allowed or rejected by the executor or administrator and judge. Sec. 811. Trial by referee, how confirmed, and its effect.—Trial by, confirmation, and effect. The referee must hear and determine the matter, and make his report thereon to the court in which his appointment is entered. The same proceedings shall be had in all respects, and the referee shall have the same powers, be entitled to the same compensation and subject to the same control, as in other cases of reference. The court may remove the referee, appoint another in his place, set aside or confirm his report and adjudge costs, as in actions against executors or administrators, and the judgment of the court thereon shall be as valid and effectual, in all respects, as if the same had been rendered in a suit commenced by ordinary process. Sec. 812. Liability of executor, and so forth, for costs.—Liability of executor, etc., for costs. When a judgment is recovered, with costs, against any executor or administrator, he shall be individually liable for such costs, but they must be allowed him in his administration accounts, unless it appears that the suit or proceeding in which the costs were taxed was prosecuted or defended without just cause. Sec. 813. Executor’s claim.—Executor, etc., as claimant. If the executor or administrator is a creditor of the decedent, his claim duly authenticated by affidavit shall be filed with the clerk, and must be presented by the clerk for allowance or rejection to the judge, who shall allow or reject it, and its allowance by the judge is sufficient evidence of its correctness, and it must be paid as other claims in due course of administration. If, however, the judge reject the claim, action thereon may be had against the estate by the claimant, and summons must be served upon the 1049judge, who may appoint an attorney, at the expense of the estate, to defend the action. If the claimant recover no judgment, he must pay all costs, including defendant’s reasonable attorney’s fees, to be fixed by the court. Sec. 814. Executor neglecting to give notice to creditors, to be removed.—Removal of executor, if notice not given to creditors. If an executor or administrator neglects for two months after his appointment to give notice to creditors, as prescribed by this chapter, the court must revoke his letters, and appoint some other person in his stead, equally or the next in order entitled to the appointment. Sec. 815. Statement of claims against estate.— At the sameStatement of claims to be filed. time at which he is required to return an inventory, the executor or administrator must also return a statement of all claims against the estate which have been filed with the clerk, or presented to the executor or administrator, if so required by the court, or judge, and from time to time thereafter he must present a statement of claims subsequently so filed or presented, if so required by the court or judge. In all such statements he must designate the names of the creditors, the nature of each claim, when it became due, or will become clue, and whether it was allowed or rejected by him, or not yet acted upon. Sec. 816. Payment of debts bearing interest.— If there be anyPayment of debts bearing interest. debt of the decedent bearing interest, whether filed or not, or whether presented or not, the executor or administrator may, by order of the court, pay the amount then accumulated and unpaid, or any part thereof, at any time when there are sufficient funds properly applicable thereto, whether said claim be then due or not; and interest shall thereupon cease to accrue upon the amount so paid. Sec. 817. When claimant cannot be found; deposit with collector.—When claimant can not be found. Whenever any claim has been filed or presented and shall have been approved by the executor or administrator and by the judge, but the same has not been paid, and the estate is in all other respects ready to be closed, if it be made to appear to the satisfaction of the court or judge, by affidavit, or by testimony, taken in open court, that the same can not be, and has not been, paid because the claimant can not be found, the court or judge shall make an order fixing the amount of said claim, with interest, if any, and directingDeposit with collector. the executor or administrator to deposit the amount with the collector of the Panama Canal, who shall give a receipt for the same, and who shall be liable upon his official bond therefor. Such executor or administrator shall at once make the deposit in accordance with such order of court and shall forthwith proceed to close up and settle such estate. Upon the final settlement of his accounts, the receipt of such collector shall be received as a proper voucher for the payment of such claim, and shall have the same force and effect as if executed by such claimant. Any person claiming to be entitled to any amount so depositedPetition by claimant for funds in collector’s hands. with the collector, may, within five years after such deposit, petition the court or judge for any order directing payment to the said claimant. A copy of such petition shall be served on the collector and thereafter no such amount shall be covered into the Treasury of the United States, as hereinafter directed, until so ordered by the court. If no one claims the amount, as herein provided, or if a claim beUnclaimed, covered into Treasury. made and disallowed and the court so directs, such amount devolves to the United States and shall be covered into the Treasury by the collector as miscellaneous receipts.1050 CHAPTER 29.— SALES AND CONVEYANCES OF PROPERTY OF DECEDENTSSALES, ETC., PROPERTY OF DECEDENT. Sec. 818. Estate chargeable with debts; no priority.—Estate chargeable with debts. All of the property of a decedent shall be chargeable with the payment of the debts of the deceased, the expenses of administration, and the allowance to the family, except as otherwise provided in this code and in the Civil Code. And the said property, personal and real, may be No priority between realty and personalty.sold in the manner prescribed in this chapter. There shall be no priority as between personal and real property for the purposes of this section. Sec. 819. Confirmation of sales.—Confirmation of sales. All sales of property must be reported under oath to and confirmed by the court, before the title to the property passes. Sec. 820. Perishable and depreciating property to be sold.—Perishable, etc., property. At any time after receiving letters, the executor, administrator, or special administrator may sell perishable and other personal property likely to depreciate in value, or which will incur loss or expense by being kept, and so much other personal property as may be necessary to pay the allowance made to the family of the decedent. The executor, administrator, or special administrator is responsible for the property unless, after making a sworn return, and on a proper showing, the court shall approve the sale. Sec. 821. Sale of personal property by executor or administrator.—Personalty. If claims against the estate have been allowed, and a sale of property is necessary for their payment, or for the expenses of administration, or for the payment of legacies, the executor or administrator may sell all or so much of the personal property as may be necessary therefor. He may also make a sale from time to time, so long as any personal property remains in his hands, and sale thereof is necessary. If it appear for the best interests of the estate, he may, at any time after filing the inventory, in like manner sell the whole or any part of the personal property belonging to the estate, whether necessary to pay debts or not. Such sale to take effect only upon confirmation by the court. Sec. 822. Partnership interests and choses in action, how sold.—Partnership interests, choses in action. Partnership interests or interests belonging to any estate by virtue of any partnership formerly existing, interest in personal property pledged, and choses in action, may be sold in the same manner as other personal property, when it appears to be for the best interest of the estate. Before confirming the sale of any partnership interest, whether made to the surviving partner or to any other person, the court or judge must carefully inquire into the condition of the partnership affairs, and must examine the surviving partner, if in the Canal Zone and able to be present in court. Sec. 823. Order of sales.—Order of sales. In making orders and sales for the payment of debts or family allowance, such articles as are not necessary for the support and subsistence of the family of the decedent, or are not specially bequeathed, must be first sold. Sec. 824. Sale at public auction or private sale.—At public auction, or private sale. The sale of personal property may be made at public auction or private sale, for Notice.cash, and after public notice given for at least ten days by notices posted in three public places in the Canal Zone, or by publication in a newspaper of general circulation in the Canal Zone, or both, as the executor or administrator may determine, containing the time and place of sale, and a brief description of the property to be sold, unless the property to be sold be perishable property, in which latter case at least one day’s notice by posting as aforesaid shall be given. Public sales must be made at the courthouse door, or at some other 1051public place, or at the residence of the decedent; but no sale shall be made of any personal property which is not present at the time of sale, unless the court shall otherwise order. Sec. 825. Executor and guardian may borrow on chattel mortgage.—Authority to borrow on chattel mortgage. Whenever in any estate now being administered or that may hereafter be administered or in any guardianship proceeding now pending or that may hereafter be pending it shall appear to the district court or judge to be for the advantage of the estate to borrow and raise money upon a note or notes, to be secured by chattel mortgage or other lien upon the personal property of any decedent or of a minor or an incompetent person, or any part thereof, for the purpose of paying the debts of such decedent or such minor or incompetent person, the court or judge as often as occasion therefor shall arise in the administration of any estate or in the course of any guardianship may authorize, empower, and direct the executors or administrators or guardian of such minor or incompetent person to mortgage such personal property, or any part thereof, or to give other security by way of pledge or other lien upon such personal property, or any part thereof, and to execute a note or notes, to be secured by such mortgage, pledge, or lien: *Provided*, That in order to obtain such authorization, the proceedings*Proviso*.Procedure to be followed.Verified petition to be filed. to be taken and the effect thereof shall be as follows: First. Verified petition.— The executor or administrator of any estate, or guardian of any minor or incompetent person, or any person interested in the estates of such decedents, minors, or incompetent persons, may file a verified petition showing: 1. The particular purpose or purposes for which it is proposed toPurpose. make the note or notes and the chattel mortgage or other lien, which shall be either to maintain the ward and his family or to maintain and educate the ward when a minor, or to pay the debts, legacies, or charges of administration, or to pay, reduce, extend, or renew some lien or mortgage already subsisting on said property or some part thereof. 2. A statement of the facts and circumstances showing the insufficiencyStatement of facts and circumstances. of the income of the estate under guardianship to maintain the ward and his family or to maintain and educate the ward when a minor and the debts, legacies, charges of administration, liens or mortgages to be paid, reduced, extended, or renewed, as the case may be. 3. The advantage that may accrue to the estate from raising theAdvantages to accrue. required money by note or notes and mortgage or other lien, or providing for the payment, reduction, extension, or renewal of the subsisting liens or mortgages, as the case may be. 4. The amount to be raised, with a general description of theAmount to be raised and description of property.Names of legatees, etc. property proposed to be mortgaged; and, 5. The names of the legatees and the devisees, if any, and of the heirs of the deceased, or of the minor, or of the incompetent person, as the case may be, so far as known to the petitioner. Second. Upon filing such petition, an order shall be made by theOrder to issue from court court or judge, requiring all persons interested in the estate to appear before the court or judge, at a time and place specified, not less than four nor more than ten weeks thereafter, then and there to show cause why the property (briefly indicating it), or some part thereof, should not be hypothecated for the amount mentioned in the petition (stating such amount), or such lesser amount as to the court or judge shall seem meet, and referring to the petition on file for further particulars.1052 Third. Notice. The order to show cause may be personally served on the persons interested in the estate, at least ten days before the time appointed for hearing the petition, or may be published for four successive weeks in a newspaper of general circulation in the Canal Zone. Fourth. Hearing. Proceedings upon hearing.— Upon the hearing of the order to show cause, having first received satisfactory proof of personal service or publication of the order to show cause, the court or judge must proceed to hear the petition and any objections that may be filed or presented thereto. Upon such hearing, witnesses may be compelled to attend and testify, in the same manner, and with like effect, as in other cases; and if, after a full hearing, the court or judge is satisfied that it will be for the advantage of the estate to Order to issue, to allow loan.hypothecate the whole or any portion of the property, an order must be made authorizing, empowering, and directing the executor or administrator, or the guardian of such minor or incompetent person, to make such mortgage, pledge, or other lien, and a promissory note or notes to the lender, for the amount of the loan, to be secured by said mortgage or other lien. Contents.What order may prescribe.—The order may direct that a lesser amount than that named in the petition be borrowed, and may prescribe the maximum rate of interest and period of the loan, and may direct in what coin or currency it shall be paid, and require that the interest and the whole or any part of the principal be paid, from time to time, out of the whole estate or any part thereof. Fifth. Execution of note and mortgage. Execution of note and mortgage.— After the making of the order to mortgage, the executor, administrator, or guardian of a minor or of an incompetent person shall execute and deliver a promissory note or notes for the amount and period specified in the order, and shall execute a mortgage, pledge, or other lien setting forth therein that it is made by authority of the order, and giving the date of such order. The note or notes and mortgage or other lien shall be signed by the executor, administrator, or guardian as such, and shall create no personal liability against the person so signing. Sixth. To be valid as against all parties. Every note or notes and mortgage or other lien so made shall be effectual to mortgage and hypothecate all the right, title, and interest which the decedent, minor, or incompetent person has in the property described therein. Irregularity in proceedings not to impair.No irregularity in the proceedings shall impair or invalidate the same or the note or notes and mortgage or other lien given in the pursuance thereof, and the mortgagee, his heirs and assigns, shall have and possess the same rights and remedies on the note or notes and mortgage or other lien as if it had been made by the decedent prior to his death, the minor after reaching the age of maturity, or the incompetent person when legally competent. *Provisos*.Deficiency on foreclosure.Deficiency on foreclosure.—*Provided*, *however*, That upon any foreclosure, if the proceeds of the encumbered property are insufficient to pay the note or notes, and mortgage, or other lien, no judgment or claim for any deficiency of such proceeds to satisfy the note or notes and mortgage, or the costs or expenses of sale, shall be had or allowed, except in cases where the note or notes and mortgage were given to pay, reduce, extend, or renew a lien or mortgage subsisting on the property, or some part thereof, at the time of the death of the decedent, and the indebtedness secured by such lien or mortgage was an allowed and approved claim against his estate, or a lien upon the interest of the minor in said property at the time it vested in him, or upon the estate of the incompetent at the time the incompetency of the incompetent person was so declared by the court: 1053*And provided also*, That in cases affecting the estate of the deceasedUnsatisfied deficiency to be simple debt. persons, the part of the indebtedness remaining unsatisfied must be classed and paid with other demands against the estate, as provided in sections 875 to 885, with respect to mortgages and other liens subsisting at the time of death. Sec. 826. When executor or administrator may sell real property.—Sale of real property. When it is for the advantage, benefit, and best interests of the estate, and those interested therein, that the real estate, or some part thereof, or interest therein be sold, the executor or administrator may sell the same under such terms, conditions, and in the manner prescribed by the court. Sec. 827. Power of executor or guardian to borrow money upon unsecured notes.—Authority to borrow on unsecured notes. Whenever in any estate now being administered or that may hereafter be administered, or in any guardianship proceeding now pending, or that may hereafter be pending, it shall appear to the court or judge having jurisdiction of said estate, or said minor or incompetent person, to be for the advantage, benefit, or best interest of the estate of said minor or incompetent person, to borrow money upon a note or notes, without being secured, the court or judge, as often as occasion therefor shall arise in the administration of any estate, or in the course of any guardianship, may upon petition and notice of hearing, as provided in this section, authorize, empower, and direct the executor or administrator or guardian of such minor or incompetent person, to execute a note or notes, without security. The proceeding to be taken to obtain an order to borrow said moneyProcedure. and execute said note or notes shall be as follows: First. The executor, or administrator of any estate, or guardian ofVerified petition. any minor or incompetent person must file a verified petition showing,
(a)The particular purpose or purposes for which it is proposedPurpose. to borrow said money, and the purpose or purposes for which it is to be used.
(b)The advantage or advantages that may accrue to said estateAdvantages to accrue. from borrowing said money and executing said note or notes.
(c)The amount of money to be borrowed, the rate of interest toAmount, interest, etc. be paid, and the length of time said note or notes are to run. Second. Upon filing such petition, the clerk of the court shall fixHearing. a day for hearing the same by the court. Third. The petitioner shall cause notice of the hearing to beNotice. mailed, postage prepaid, to the heirs at law of said decedent, and to the devisees and legatees resident in the Canal Zone, and to the nearest relatives of said minor or incompetent person, resident in the Canal Zone, at least ten days before the hearing, addressed to them at their respective post-office addresses, if known. Otherwise, at the place where the proceedings are pending. Fourth. At the time and place appointed for said hearing, or atProcedure on hearing. such other time and place to which the hearing may be postponed by the court, the court must proceed to hear the petition, and any objections that may be filed or presented thereto, and, if, after a full hearing, the court is satisfied that it will be for the advantage, benefit, or best interest of the estate of said decedent, or of said minor or incompetent person, to borrow said money, and execute said note or notes, without security, an order must be made, authorizing, empowering, and directing the executor, or administrator, or the guardian of such minor or incompetent person to borrow said money, and to make and execute said note or notes, without security, specifying in said order the amount that may be borrowed, the rate of interest that is to be paid, and the length of time that said note or notes are to run.1054 Fifth. Issue of notes, etc. After the making of the order to borrow said money and execute said note or notes, the executor, administrator, or guardian of the minor or incompetent person, shall execute and deliver a promissory note or notes, without security, for the amount, at the rate of interest, and for the period prescribed in said order, and said note or notes shall be signed by the executor, or administrator or guardian, as such, and shall create no personal liability against the person so signing. Sixth. To be valid as against all parties. Any note or notes so signed and executed, shall be effectual to create a valid obligation and debt against said estate, or said minor or incompetent person, and shall be payable out of the funds of said estate, and said note or notes shall specify that it is made by authority of such order, giving the date thereof. CHAPTER 30.— POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS, AND MANAGEMENT OF ESTATES.POWERS AND DUTIES OF EXECUTORS, ETC., MANAGEMENT OF ESTATES. Sec. 828. Executors to take possession of the entire estate.—Possession of estate. The executor or administrator must take into his possession all the estate of the decedent, real and personal, and collect all debts due to the decedent or to the estate. For the purpose of bringing suits to quiet title, or for partition of such estate, the possession of the executors or administrators is the possession of the heirs or devisees; such possession by the heirs or devisees is subject, however, to the possession of the executor or administrator, for the purposes of administration, as provided in chapters 23 to 36 of this code. Sec. 829. Actions may be maintained by and against executors and administrators.—Actions by and against executors, etc. Actions for the recovery of any property, real or personal, or for the possession thereof, or to quiet title thereto, or to determine any adverse claim thereon, and all actions founded upon contracts, may be maintained by and against executors and administrators in all cases in which the same might have been maintained by or against their respective testators or intestates. Sec. 830. May maintain actions for waste, conversion, and trespass.—Actions by, for waste, conversion, and trespass. Executors and administrators may maintain actions against any person who has wasted, destroyed, taken, or carried away, or converted to his own use, the goods of their testator or intestate, in his lifetime. They may also maintain actions for trespass committed on the real estate of the decedent in his lifetime. Sec. 831. Executor and administrator may be sued for waste or trespass of decedent.—Against, for waste or trespass of decedent. Any person or his personal representatives may maintain an action against the executor or administrator of any testator or intestate who in his lifetime has wasted, destroyed, taken, or carried away, or converted to his own use, the goods or chattels of any such person, or committed any trespass on the real estate of such person. Sec. 832. Surviving partner to settle up business; interest therein to be appraised; account to be rendered.—Surviving partner. When a partnership exists between the decedent, at the time of his death, and any other person, the surviving partner has the right to continue Interest in partner ship of decedent to be appraised, etc.in possession of the partnership, and to settle its business, but the interest of the decedent in the partnership must be included in the inventory, and be appraised as other property. The surviving partner must settle the affairs of the partnership without delay, and account with the executor or administrator, and pay over such balances as may from time to time be payable to him, in right of Account may be n quired.the decedent. Upon the application of the executor or administrator, the court, or a judge thereof, may, whenever it appears necessary, 1055order the surviving partner to render an account, and in case of neglect or refusal may, after notice, compel it by attachment; and the executor or administrator may maintain against him any action which the decedent could have maintained. Sec. 833. Actions on bond of executor or administrator may be brought by an other administrator.—Action on bond of executor, etc. An administrator may, in his own name, for the use and benefit of all parties interested in the estate, maintain actions on the bond of an executor, or of any former administrator of the same estate. Sec. 834. What executors are not parties to actions.— In actionsUnqualified executors not parties to actions. by or against executors, it is not necessary to join those as parties to whom letters were issued, but who have not qualified. Sec. 835. May compound.— Whenever a debtor of the decedent isCompounds and compromises. unable to pay all his debts, the executor or administrator, with the approbation of the court or judge, may compound with him and give him a discharge, upon receiving a fair and just dividend of his effects. A compromise may also be authorized when it appears to be just, and for the best interest of the estate. Sec. 836. Recovery of property fraudulently disposed of by testator.—Recovery of property fraudulently disposed of by testator. When there is a deficiency of assets in the hands of an executor or administrator, and when the decedent, in his lifetime, has conveyed any real estate, or any rights or interests therein, with intent to defraud his creditors, or to avoid any right, debt, or duty of any person, or has so conveyed such estate that by law the deeds or conveyances are void as against creditors, the executor or administrator must commence and prosecute to final judgment any proper action for the recovery of the same; and may recover for the benefit of the creditor all such real estate so fraudulently conveyed; and may also, for the benefit of the creditors, sue and recover all goods, chattels, rights, or credits which have been so conveyed by the decedent in his lifetime, whatever may have been the manner of such fraudulent conveyance. Sec. 837. When executor to sue, as provided in preceding section.—Suit to be instituted on application of creditors. No executor or administrator is bound to sue for such estate, as mentioned in section 836, for the benefit of the creditors, unless on application of creditors, who must pay such part of the costs and expenses of the suit, or give such security to the executor or administrator therefor, as the court or judge shall direct. Sec. 838. Disposition of estate recovered.— All real estate soDisposition of estate recovered. recovered must be sold for the payment of debts, in the same manner as if the decedent had died seised thereof, upon obtaining an order therefor from the court; and the proceeds of all goods, chattels, rights, and credits so recovered must be appropriated in payment of the debts of the decedent in the same manner as other property in the hands of the executor or administrator. The remainder of the proceeds, after all the debts of the decedent have been paid, must be paid to the person from whom such property was recovered. Sec. 839. Court may order funds deposited.— The court isDeposit of funds on order of court. empowered to order any executor or administrator to deposit any or all funds of an estate, coming into his hands, in a bank or banks, or other depositary, to be designated by the court. The deposit shall be made in the name of the executor or administrator with a designation of his fiduciary Capacity. The court may direct the executor or administrator to deposit any or all of such funds in an interest-bearing account: *Provided*, *however*, That nothing in this section*Proviso*.Executors, etc., not relieved from duties, etc., thereby. shall be construed to relieve any executor or administrator from any duty otherwise imposed by law.1056 Sec. 840. Investment of moneys of estate pending settlement.—Investment of moneys, pending settlement, by court order. Pending the settlement of any estate, on the petition of any person interested therein, and upon good cause shown therefor, the court may order any money in the hands of the executors or administrators to be invested for the benefit of the estate in securities of the United States. Notice of hearing on petition.Such order can only be made after ten days’ notice of the hearing of the said petition, by notice posted in three public places in the Canal Zone, or by publication in a newspaper of general circulation therein, or both, as the court or judge shall direct. CHAPTER 31.— CONVEYANCE OF REAL ESTATE AND TRANSFER OF PERSONAL PROPERTY BY EXECUTORS AND ADMINISTRATORS IN CERTAIN CASESCONVEYANCE AND TRANSFER OF PROPERTY, REAL AND PERSONAL. Sec. 841. Executor or administrator to complete contracts for sale of real or personal property.—Completion of contracts for sale. When a person who is bound by contract in writing to convey any real estate, or to transfer any personal property, dies before making conveyance or transfer, and in all cases when such decedent, if living, might be compelled to make such conveyance or transfer, the court having jurisdiction of the probate proceedings of the estate of such decedent, may make a decree authorizing and directing the executor or administrator of such deceased person to convey or transfer such real estate or personal property to the person entitled thereto. Sec. 842. Petition for executor or administrator to make conveyance or transfer and notice of hearing.—Procedure to enforce. On the presentation of a verified petition by the executor or administrator, or by any person claiming to, be entitled to such conveyance from an executor or administrator, setting forth the facts upon which the claim is predicated, the court or judge shall appoint a time and place for hearing the petition, and shall order notice thereof to be served on the executor or administrator personally when he is not the petitioner, and to be published at least once a week for four successive weeks before such hearing, in a newspaper of general circulation in the Canal Zone. Sec. 843. Interested parties may contest.—Contest by interested parties. At the time and place appointed for the hearing, or at such other time to which the same may be postponed, upon satisfactory proof by affidavit or otherwise, of the due publication of the notice, the court shall proceed to hear the said petition, and all persons interested in the estate may appear and contest such petition, by filing their objections in writing, and the court may examine, on oath, the petitioner and all who may be produced before him for that purpose. Sec. 844. Decree authorizing conveyance.—Decree authorizing. If after a full hearing upon the petition and objections and examination of the facts and circumstances of the claim, the court is satisfied that the conveyance of the real estate described in the petition to the party entitled thereto should be made, a decree authorizing and directing the executor or administrator to execute a conveyance thereof to the party entitled thereto must be made. Sec. 845. Execution of conveyance or transfer, and the recording of the order therefor.—Execution of conveyance, etc. The executor or administrator must execute the conveyance or transfer according to the directions contained in the decree, which decree shall be prima facie evidence of the correctness of the proceedings, and of the authority of the executor or administrator to make the conveyance or transfer.1057 Sec. 846. Rights of petitioner to enforce the contract.— IfRights of petitioner to enforce contract. upon the hearing, as hereinbefore provided, the right of the petitioner to have a specific performance of the contract is found to be doubtful, the court must dismiss the petition without prejudice to the rights of the petitioner, who may, at any time within six months after such dismissal, proceed by action to enforce a specific performance thereof. Sec. 847. Effect of conveyance or transfer.— Every conveyanceEffect of conveyance or transfer. or transfer made in pursuance of a decree as provided in this chapter, shall pass title to the property contracted for, as fully as if the contracting party himself was still living, and executed the conveyance or transfer. Sec. 848. Effect of recording a copy of the decree.— A copy ofOf recording copy of decree. the decree for a conveyance or transfer as provided in this chapter, duly certified and recorded in the office of the registrar of property, gives the person entitled to the conveyance or transfer a right to the possession of the property contracted for, and to hold the same according to the terms of the intended conveyance or transfer, in like manner as if the same had been conveyed or transferred in pursuance of the decree. Sec. 849. Recording of the decree does not supersede power of court to enforce it.—Recording decree not to supersede power of court to enforce. The recording of any decree, as provided in section 848 shall not prevent the court making the decree from enforcing the same by other process. Sec. 850. Where party to whom conveyance or transfer to be made is dead.—When transferee dead. If the person entitled to the conveyance or transfer dies before the commencement of the proceedings therefor under this chapter, or before the completion of the conveyance or transfer, any person entitled to succeed to his rights in the contract, or the executor or administrator of such decedent, may, for the benefit of the person so entitled, commence such proceedings or prosecute any already commenced, and the conveyance or transfer must be so made as to vest the property in the person or persons entitled thereto, or in the executor or administrator, for their benefit. Sec. 851. Decree may direct possession to be surrendered.— TheSurrender of possession. decree provided for in this chapter may direct the possession of the property therein described to be surrendered to the person entitled thereto, upon his producing a certified copy of the decree, when, by the terms of the contract, possession is to be surrendered. CHAPTER 32.— ACCOUNTS RENDERED BY EXECUTORS AND ADMINISTRATORS, AND PAYMENT OF DEBTSACCOUNTS BY EXECUTORS, ETC., PAYMENT OF DEBTS. liabilities and compensation of executors and administratorsLiabilities and compensation of executors, etc.Personal liability. Sec. 852. When executor or administrator personally liable.— No executor or administrator is chargeable upon any special promise to answer in damages or to pay the debts of the testator or intestate out of his own estate, unless the agreement for that purpose, or some memorandum or note thereof, is in writing and signed by such executor or administrator, or by some other person by him thereunto specially authorized in writing. Sec. 853. Executor to be charged with all estate, and so forth.—Executor, etc., chargeable with all estate, etc. Every executor and administrator is chargeable in his account with the whole of the estate of the decedent which may come into his possession at the value of the appraisement contained in the inventory, except as provided in the following sections, and with all the interest, profit, and income of the estate.1058 Sec. 854. Not to profit or lose by estate.—Not to profit or lose by estate. He shall not make profit by the increase, nor suffer loss by the decrease, or destruction, without his fault, of any part of the estate. He must account for the excess when he sells any part of the estate for more than the appraisement, and if any is sold for less than the appraisement, he is not responsible for the loss, if the sale has been justly made. Sec. 855. Uncollected debts without fault.—Uncollected debts without fault. No executor or administrator is accountable for any debts due to the decedent, if it appears that they remain uncollected without his fault. Sec. 856. Expenses of executors.—Allowance of expenses. The executor or administrator shall be allowed all necessary expenses in the care, management, and settlement of the estate, and for his services such fees as provided by this chapter; but when the decedent, by his will, makes some other provision for the compensation of his executor, that shall be a full compensation for his services, unless by a written instrument, filed in the court, he renounces all claim for compensation provided for in the will. Allowance upon commissions.Allowance upon commissions.—At any time during the administration any executor or administrator, may, upon such notice to the other parties interested in the estate as the court shall by order require, apply to the court for an allowance to himself upon his commissions, and the court shall on the hearing of such application make an order allowing such executor or administrator such portion of his commissions as to the court shall seem proper, and the portion so allowed may be thereupon charged against the estate. Allowance to attorney of fees.Allowance to attorney upon fee.—Any attorney who has rendered services to an executor or administrator may at any time during the administration, and upon such notice to the other parties interested in the estate as the court shall by order require, apply to the court for an allowance to himself, of compensation therefor, and the court shall on the hearing of such application make an order requiring the executor or administrator to pay such attorney out of the estate such compensation on account of services rendered by such atorney up to the date of such order as to the court shall seem proper, and such payment shall be forthwith made. Sec. 857. Not to purchase claims against the estate.—Purchase of claims against estate forbidden. No administrator or executor shall purchase any claim against the estate he represents; and if he pays any claim for less than its nominal value he is only entitled to charge in his account the amount he actually paid. Sec. 858. Executors and administrators; commissions allowed to.—Commissions allowed to executors and administrators. When no compensation is provided by the will, or the executor renounces all claim thereto, he must be allowed commissions upon the amount of estate accounted for by him, as follows: for the first $1,000, at the rate of 7 per cent; for the next $9,000, at the rate of 4 per cent; for the next $10,000, at the rate of 3 per cent; for the next $30,000, at the rate of 2 per cent; for the next $50,000, at the rate of 1 per cent; and for all above $100,000, at the rate of one-half Apportionment.of 1 per cent. If there are two or more executors the compensation shall be apportioned among them by the court according to the services actually rendered by them respectively. The same commissions shall be allowed to administrators. In all cases, such further allowance may be made as the court may deem just and reasonable for any extraordinary service, but the total amount of such extra allowance must not exceed one-half the amount of commissions allowed by this section. Where the property of the estate is distributed in kind, and involves no labor beyond the custody and distribution of the same, the commission shall be computed on all the estate above the value of $20,000, at one-half of the rates fixed 1059in this section. Public administrators shall, subject to the provisionsPublic administrators. of section 952, receive the same compensation and allowances as are allowed in this title to other administrators. All contracts between an executor or administrator and an heir, devisee, or legatee, for a higher compensation than that allowed by this section, shall be void. When the executor or administrator is an attorneyAttorney serving as, not allowed professional fees. he shall not be allowed to charge against the estate any professional fees, as such, for services rendered by himself. Sec. 859. Allowed fees for attorneys; exraordinary 11 So in original. services.—Attorneys’ fees, extraordinary services. Attorneys for executors and administrators shall be allowed out of the estate as fees for conducting the ordinary probate proceedings such reasonable sum as the court may allow which shall be not in excess of such amounts as are allowed by section 858 as compensation for executors and administrators for their own services. In all cases such further allowance may be made as the court may deem just and reasonable for any extraordinary services such as sales or mortgages of real estate, contested or litigated claims against the estate, litigation in regard to the property of the estate, and such other litigation as may be necessary for the executor or administrator to prosecute or defend. accounting and settlements by executors and administratorsAccounting and settlements by executors, etc. Sec. 860. Executor’s exhibit of money received, and so forth.—Exhibits of money received, etc. When required by the court, either upon its own motion or upon the application of any person interested in the estate, the executor or administrator must render an exhibit under oath, showing the amount of money received and expended by him, the amount of all claims filed or presented against the estate, and the names of the claimants, and all other matters necessary to show the condition of its affairs. Sec. 861. Objections to account, who may file.— When anObjections to account, filing of. exhibit is rendered by an executor or administrator, any person interested may appear and, by objections in writing, contest any account or statement therein contained. The court may examine the executor or administrator, and if he has been guilty of neglect, or has wasted, embezzled, or mismanaged the estate, his letters must be revoked. Sec. 862. Attachment for not obeying citation.— If any executorAttachment for not obeying citation. or administrator neglects or refuses to appear and render an exhibit, after having been duly cited, an attachment may be issued against him and such, exhibit enforced, or his letters may be revoked, in the discretion of the court. Sec. 863. Executor’s report.— Within thirty days after the expirationExecutor’s report. of the time mentioned in the notice to creditors within which claims must be filed or exhibited every executor or administrator must render a full account and report of his administration. If he fails to present his account the court or judge must compel the rendering of the account by attachments, and any person interested in the estate may apply for and obtain an attachment; but no attachment must issue unless a citation has been first issued, served, and returned, requiring the executor or administrator to appear and show cause why an attachment should not issue. Every account must exhibit all debts which have been filed and allowed during the period embraced in the account.1060 Sec. 864. Executor to account after his authority revoked.—Account after authority revoked. When the authority of an executor or administrator ceases, or is revoked for any reason, he may be cited to account before the court, at the instance of the person succeeding to the administration of the same estate, in like manner as he might have been cited by any person interested in the estate during the time he was executor or administrator. Sec. 865. Revoking authority of executor, when.—Revocation of authority. If the executor or administrator resides out of the Canal Zone, or absconds, or conceals himself, so that the citation can not be personally served, and neglects to render an account within thirty days after the time prescribed in this subchapter, or if he neglects to render an account within thirty days after being committed where the attachment has been executed, his letters must be revoked. Sec. 866. To produce and file vouchers, which remain in court.—Vouchers to be produced and filed. In rendering his account, the executor or administrator must produce and file vouchers for all charges, debts, claims, and expenses which he has paid, which must remain in the court; and he may be examined on oath touching such payments, and also touching any property and effects of the decedent, and the disposition thereof. When any voucher is required for other purposes, it may be withdrawn on leaving a certified copy on file; if a voucher is lost, or for other good reason can not be produced on the settlement, the payment may be proved by the oath of any competent witness. Sec. 867. Expenditures less than $20 may be allowed executors without vouchers.—Petty cash expenditures. On the settlement of his account he may be allowed any item of expenditure not exceeding $20, for which no voucher is produced, if such item be supported by his own uncontradicted oath positive to the fact of payment, specifying when, where, and to whom it was made; but such allowances in the whole must not exceed $500 against any one estate. Lost and destroyed vouchers.Lost or destroyed vouchers.—Provided, that if it appears by the oath to the account and is proven by competent evidence to the satisfaction of the court, that a voucher for any disbursement or disbursements whatsoever has been lost or destroyed, and that it is impossible to obtain a duplicate thereof, and that such item or items were paid in good faith and for the best interests of the estate, and such item or items were legal charges against said estate, then the executor or administrator shall be allowed such item or items. Payments of debts without affidavit, etc.*Ante*, p. 1045.Payments of debts without affidavit and allowance.—If, upon such settlement of accounts, it appears that debts against the deceased have been paid without the affidavit and allowance prescribed by statute or sections 799 and 800, and it shall be proven by competent evidence to the satisfaction of the court that such debts were justly due, were paid in good faith, that the amount paid was the true amount of such indebtedness over and above all payments or set-offs, and that the estate is solvent, it shall be the duty of the said court to allow the said sums so paid in the settlement of said accounts. Sec. 868. Day of settlement to be appointed; clerk must give notice thereof; hearing on settlement.—Day of settlement to be appointed. When any account is rendered for settlement, the clerk of the court must appoint a day Notice.for the settlement thereof, and thereupon give notice thereof by causing notices to be posted in at least three public places in the Canal Zone, setting forth the name of the estate, the executor or administrator, and the day appointed for the settlement of the Hearing.account. If, upon the final hearing at the time of settlement, the court or judge should deem the notice insufficient from any cause, 1061he may order such further notice to be given as may seem to him proper. Sec. 869. When settlement is final, notice must so state.— IfNotice of final settlement. the account mentioned in the preceding section be for a final settlement, and a petition for the final distribution of the estate be filed with said account, the notice of settlement must state those facts, which notice must be given by posting or publication for at least ten days prior to the day of settlement. On the settlement of said account, distribution and partition of the estate to all entitled thereto may be immediately had without further notice or proceedings. Sec. 870. Interested party may file exceptions to account.—Exceptions to account. On the day appointed, or any subsequent day to which the hearing may be postponed by the court, any person interested in the estate may appear and file his exceptions in writing to the account, and contest the same. Sec. 871. All matters may be contested by the heirs; hearing may be postponed.—Contesting of matters by heirs. All matters, including allowed claims not passed upon on the settlement of any former account, or on rendering an exhibit, or on making a decree of sale, may be contested by the heirs, for cause shown. The hearing and allegations of the respective parties may be postponed from time to time, when necessary, andPostponement of hearing. the court may appoint one or more referees to examine the accounts, and make report thereon, subject to confirmation; and may allow a reasonable compensation to the referees to be paid out of the estate of the decedent. Whenever an allowed claim is contested by anyTrial by jury. heir, or other person entitled to contest it, either the contestant or the claimant is entitled to a trial by jury of the issues of fact presented by the contest; and it is the duty of the court, at request of either party, to call a jury and submit to them such issues, and, after receiving their verdict, to enter an order disposing of such contest in accordance therewith. Sec. 872. Settlement of accounts to be conclusive, when and when not.—Settlement of accounts conclusive. The settlement of the account and the allowance thereof by the court, or upon appeal, is conclusive against all persons in any way interested in the estate, saving, however, to all persons laboringSaving persons under disability. under any legal disability, their right to move for cause to reopen and examine the account, or to proceed by action against the executor or administrator, either individually or upon his bond, at any time before final distribution; and in any action brought by any such person, the allowance and settlement of the account is prima facie evidence of its correctness. Sec. 873. Proof of notice of settlement of accounts.— TheProof of notice. account must not be allowed by the court until it is first proved that notice has been given as required by this chapter, and the decree must show that such proof was made to the satisfaction of the court, and is conclusive evidence of the fact. Sec. 874. Deceased executor’s or guardian’s accounts.— If anyDeceased executor’s, etc., accounts. executor, administrator or guardian dies, his accounts may be presented by his personal representative to, and settled by, the court in which the estate of which he was executor, administrator or guardian is being administered, and, upon petition of the successor of such deceased executor, administrator or guardian, such court may compel the personal representatives of such deceased executor, administrator or guardian to render an account of the administration of their testator or intestate, and must settle such account as in other cases.1062 payment of debts of estatePayment of debts. Sec. 875. Order in which debts must be paid.—Order. The debts of the estate must be paid in the following order: 1. Funeral expenses; 2. The expenses of the last sickness; 3. Debts clue to the United States; 4. Judgments rendered against the decedent in his lifetime, and mortgages and other liens in the order of their date; 5. All other demands against the estate. Debts payable in particular kind of currency.If a debt is payable in a particular kind of money or currency, it must be paid only in such money or currency. If the estate is insolvent, no greater rate of interest must be paid upon any debt, from the time of the first publication of notice to creditors, than is allowed by law on judgments. Sec. 876. Where property insufficient to pay mortgage.—Limitation on priority of mortgage, etc. The preference given in section 875 to a mortgage or lien only extends to the proceeds of the property subject to the mortgage or lien. If the proceeds of such property are insufficient to pay the mortgage or lien, the part remaining unsatisfied must be classed with general demands against the estate. Sec. 877. Estate in sufficient, a dividend to be paid.—If estate insufficient, dividends to be paid. If the estate is insufficient to pay all the debts of any one class, each creditor must be paid a dividend in proportion to his claim; and no creditor of any one class shall receive any payment until all those of the preceding class are fully paid. Sec. 878. Funeral expenses and expenses of last sickness.—Expenses of funeral and last sickness. The executor or administrator, as soon as he has sufficient funds in his hands, must pay the funeral expenses and the expenses of the last sickness, and the allowance made to the family of the decedent. He may retain in his hands the necessary expenses of administration, but he is not obliged to pay any other debt or any legacy until, as prescribed in this sub-chapter, the payment has been ordered by the court. Sec. 879. Order for payment of debts, and discharge of the executor or administrator.—Payment of debts by court order. Upon the settlement of the account of the executor or administrator, provided for in section 863, the court must make an order for the payment of the debts, as the circumstances of the estate require. If there are not sufficient funds in the hands of the executor or administrator, the court must specify in Discharge of executor, etc.the decree the sum to be paid to each creditor. If the whole property of the estate is exhausted by such payment or distribution, such account must be considered as a final account, and the executor or administrator is entitled to his discharge on producing and filing the necessary vouchers and proofs showing that such payments have been made, and that he has fully complied with the decree of the court. Sec. 880. Provision for disputed and contingent claims.—Disputed and contingent claims. If there is any claim not due, or any contingent or disputed claim against the estate, the amount thereof, or such part of the same as the holder would be entitled to if the claim were due, established, or absolute, must be paid into the court, and there remain, to be paid over to the party when he becomes entitled thereto; or, if he fails to establish his claim, to be paid over or distributed as the circumstances of the estate require. If any creditor whose claim has been allowed, but is not yet due, appears and assents to a deduction therefrom of the legal interest for the time the claim has yet to run, he is entitled to be paid accordingly. The payments provided for 1063in this section are not to be made when the estate is insolvent, unless a pro rata distribution is ordered. Sec. 881. After decree for payment of debts, executor personally liable to creditors.—Court decree for payment of debts, executor personally liable. When a decree is made by the court for the payment of creditors, the executor or administrator is personally liable to each creditor for his allowed claim, or the dividend thereon, and execution may be issued on such decree, as upon a judgment in the court, in favor of each creditor, and the same proceeding may be had under such execution as under execution in other cases. The executor or administrator is liable therefor on his bond to each creditor. Sec. 882. Claims not included in order for payment of debts, how disposed of.—Claims not included in decree, disposition of. When the accounts of the administrator or executor have been settled, and an order made for the payment of debts and distribution of the estate, no creditor whose claim was not included in the order for payment has any right to call upon the creditors who have been paid, or upon the heirs, devisees, or legatees to contribute to the payment of his claim; but if the executor or administrator has failed to give the notice to the creditors, as prescribed in section 795, such creditor may recover on the bond of the executor or administrator the amount of his claim, or such part thereof as he would have been entitled to had it been allowed. This section shall not apply to any creditor whose claim was not due ten months before the day of settlement, or whose claim was contingent and did not become absolute ten months before such day. Sec. 883. Order for payment of legacies, and extension of time.—Decree for payment of legacies, extension of time. If the whole of the debts have been paid by the first distribution, the court must direct the payment of legacies and the distribution of the estate among the heirs, legatees, or other persons entitled, as provided in the next chapter; but if there be debts remaining unpaid, or if, for other reasons, the estate be not in a proper condition to be closed, the court must give such extension of time as may be reasonable for a final settlement of the estate. Sec. 884. Final account, when to be made.— At the time designatedFinal account. in section 883, or sooner, if within that time all the property of the estate has been sold, or there are sufficient funds in his hands for the payment of all the debts due by the estate, and the estate be in a proper condition to be closed, the executor or administrator must render a final account, and pray a settlement of his administration. Sec. 885. Neglect to render final account, how treated.— If heFailure to render. neglects to render his account, the same proceedings may be had as prescribed in this chapter in regard to the first account to be rendered by him; and all the provisions of this chapter relative to the last-mentioned account, and the notice and settlement thereof, apply to his account presented for final settlement. CHAPTER 33.— PARTITION, DISTRIBUTION, AND FINAL SETTLEMENT OF ESTATESPARTITION, DISTRIBUTION, FINAL SETTLEMENT OF ESTATES. partial distribution prior to final settlementPartial distribution. Sec. 886. Payment of legacies.— At any time after the lapse ofPayment of legacies, petition for. four months from the issuing of letters testamentary or of administration, any heir, devisee, legatee (or his assignee, grantee, or successor in interest) may present his petition to the court for the legacy or share of the estate to which he is entitled, or any portion thereof, to be given to him upon his giving bonds, with security, for the payment of his proportion of the debts of the estate.1064 Sec. 887. Notice of application for legacies.—Notice. Notice of the application must be given to the executor or administrator, personally, and to all persons interested in the estate, in the same manner that notice is required to be given of the settlement of the account of an executor or administrator. Sec. 888. Executor, or other person interested, may resist application.—Contest. The executor or administrator, or any person interested in the estate, may appear at the time named and resist the application. Sec. 889. Prayer of applicant granted.—Granting of prayer of applicant. If, at the hearing, it appears that the estate is but little indebted, and that the share of the party applying may be allowed to him without loss to the creditors Decree granting, to require.of the estate, the court must make an order in conformity with the prayer of the applicant, requiring: 1. Bond. Bond.— Each heir, legatee, devisee (or his assignee, grantee, or successor in interest) obtaining such order, before receiving his share or any portion thereof, to execute and deliver to the executor or administrator, a bond, in such sum as may be designated by the court or judge, with sureties to be approved by the judge, payable to the executor or administrator, and conditioned for the payment, whenever required, of his proportion of the debts due from the estate, not exceeding the value or amount of the legacy or portion of the estate to which he is entitled. Where the time for filing or presenting claims has expired, and all claims that have been allowed, have been paid, or are secured by mortgage upon real estate sufficient to pay them, and the court is satisfied that no injury can result to the estate, the court may dispense with the bond; 2. Delivery of property. Delivery of property.— The executor or administrator to deliver to the heir, legatee, devisee (or his assignee, grantee, or successor in interest), the whole portion of the estate to which he may be entitled, or only a part thereof designating it. Partition.If, in the execution of the order, a partition is necessary between two or more of the parties interested, it must be made in the manner hereinafter prescribed. The costs of these proceedings must be paid by the applicant, or if there are more than one, must be apportioned equally among them. Sec. 890. Order for payment of bond, and suit thereon.—Petition and order for payment of bond. When any bond has been executed and delivered, under the provisions of the preceding section, and it is necessary for the settlement of the estate to require the payment of any part of the money thereby secured, the executor or administrator must petition the court for an order requiring the payment, and have a citation issued and served on the party bound, requiring him to appear and show cause why the order should not be made. At the hearing, the court, if satisfied of the necessity of such payment, must make an order accordingly, designating the amount and giving a time within which it must be paid. If the money is not paid within the time allowed, an action may be maintained by the executor or administrator on the bond. Sec. 891. Partial distribution of estates of deceased persons.—Partial distribution, petition for. Where the time for filing or presenting claims has expired, and all claims that have been allowed have been paid, or are secured by a mortgage upon real estate sufficient to pay them, and the estate is not in a condition to be finally closed and distributed, the executor or administrator, or coexecutor or coadministrator, may present his petition to the court for ratable payment of the legacies, or ratable distribution of the estate to all the heirs, legatees, devisees, or their Notice.assignees, grantees or successors in interest. Notice of such application must be given to all persons interested in the estate, in the 1065same manner that notice is required to be given of the settlement of the account of an executor or administrator. Any person interested in the estate may appear at the time namedContest. and resist the application. Order granted when.—If, at the hearing, it appears that theGranting of decree. allegations of the petition of said executor, administrator, coexecutor, or coadministrator, are true, and the court is satisfied that no injury can result to the estate by granting the petition, the court must make an order directing the executor or executors, administrator or administrators, as the case may be, to deliver to the heirs, legatees, devisees, or to their assigns, grantees, or successors in interest, the whole portion of the estate to which they may be entitled or only a part thereof, designating it. If, in the execution of the order, a partition is necessary betweenPartition. two or more of the parties interested, it must be made in the manner hereinafter prescribed. The costs of the proceedings under this section must be paid by the estate, excepting that in case a partition is necessary, the costs of such partition must be apportioned amongst the parties interested in such partition. distribution on final settlementDistribution on final settlement. Sec. 892. Proceedings in the nature of an action to determine heirship; petition.—Petition to establish rights of parties. In all estates now being administered, or that may hereafter be administered, any person claiming to be heir to the deceased, or entitled to distribution in whole or in any part of such estate, may, at. any time prior to the decree of final distribution, file a petition in the matter of such estate, praying the court to ascertain and declare the rights of all persons to said estate and all interests therein, and to whom distribution thereof should be made. Notice to persons interested.—Upon the filing of such petition,Notice. the court shall make an order directing service of notice to all persons interested in said estate to appear and show cause, on a day to be therein named, not less than sixty days nor over four months from the elate of the making of such order, in which notice shall be set forth the name of the deceased, the name of the executor or administrator of said estate, the names of all persons who may have appeared claiming any interest in said estate in the course of the administration of the same, up to the time of the making of said order, and such other persons as the court may direct, and also a description of the real estate whereof said deceased died seised or possessed, so far as known, described with certainty to a common intent, and requiring all said persons, and all persons named or not named having or claiming any interest in the estate of said deceased, at the time and place in said order specified, to appear and exhibit, as hereinafter provided, their respective claims of heirship, ownership, or interest in said estate, to said court, which notice shall be served in the same manner as a summons in a civil action, upon proof of which service, by affidavit or otherwise, to the satisfaction of the court, the court shall thereupon acquire jurisdiction to ascertain and determine the heirship, ownership, and interest of all parties in and to the property of said deceased, and such determination shall be final and conclusive in the administration of said estate, and the title and ownership of said property. The court shall enter an order or decree establishing proof of the service of such notice. Filing of appearance—default.—All persons appearing withinAppearance, default. the time limited as aforesaid shall file their written appearance in person or through their authorized attorney, such attorney filing at the same time written evidence of his authority to so appear, entry of which appearance shall be made in the minutes of the court and in 1066the register of proceedings of said estate. And the court shall, after the expiration of the time limited for appearing as aforesaid, enter an order adjudging the default of all persons for not appearing as aforesaid who shall not have appeared as aforesaid. Complaint by interested persons; filing and service of answer to.Complaint by interested persons; filing and service of answer to.—At any time within twenty days after the date of the order or decree of the court establishing proof of the service of such notice, any of such persons so appearing may file his complaint in the matter of the estate, setting forth the facts constituting his claim of heirship, ownership, or interest in said estate, with such reasonable particularity as the court may require, and serve a copy of the same upon each of the parties or attorneys who shall have entered their written appearance as aforesaid, if such parties or such attorneys reside within the Canal Zone; and in case any of them do not reside within the Canal Zone, then service of such copy of said complaint shall be made upon the clerk of said court for them, and the clerk shall forthwith mail the same to the address of such party or attorney as may have left with said clerk his post-office address. Proceedings after issues joined.Proceedings after issues joined.—Such parties are allowed twenty days after the service of the complaint, as aforesaid, within which to plead thereto, and thereafter such proceedings shall be had upon such complaint as in this code provided in case of an ordinary civil action; and the issues of law and of fact arising in the proceeding shall be disposed of in like manner as issues of law and fact are herein provided to be disposed of in civil actions; and the provisions of this code contained regulating the mode of procedure for the trial of civil actions shall be applicable thereto. Plaintiff and defendant.Plaintiffs and defendants in proceedings.—The party filing the petition as aforesaid, if he file a complaint, and if not, the party first filing such complaint, shall, in all subsequent proceedings, be treated as the plaintiff therein, and all other parties so appearing shall be treated as the defendants in said proceedings, and all such defendants shall set forth in their respective answers the facts constituting their claim of heirship, ownership, or interest in said estate, with such particularity as the court may require, and serve a copy thereof on the plaintiff. Evidence.Evidence in support of all issues may be taken orally or by deposition, in the same manner as provided in civil actions. Notice of the taking of such depositions shall be served only upon the parties, or the attorneys of the parties, so appearing in said proceeding. Decree, what to determine; conclusiveness.Decree, what to determine; conclusiveness of.—The court shall enter a default of all persons failing to appear, or plead, or prosecute, or defend their rights as aforesaid; and upon the trial of the issues arising upon the pleadings in such proceedings, the court shall determine the heirship to said deceased, the ownership of his estate, and the interest of each respective claimant thereto or therein, and persons entitled to distribution thereof, and the final determination of the court thereupon shall be final and conclusive in the distribution of said estate, and in regard to the title to all the property of the estate of said deceased. Distribution of costThe cost of the proceedings under this section shall be apportioned in the discretion of the court. Attorney for minorAttorney for minors.—In any proceeding under this section, the court may appoint an attorney for any minor mentioned in said proceedings not having a guardian. Determination of heirship at final distribution.Determination of heirship at final distribution.—Nothing in this section contained shall be construed to exclude the right upon final distribution of any estate to contest the question of heirship, 1067title, or interest in the estate so distributed, where the same shall not have been determined under the provisions of this section; but where such questions shall have been litigated, under the provisions of this section, the determination thereof as herein provided shall be conclusive in the distribution of said estate. Sec. 893. Final distribution of estate.—Final distribution of estate. Upon the final settlement of the accounts of the executor or administrator, or at any subsequent time, upon the application of the executor or administrator, or of any heir, legatee, devisee (or his assignee, grantee, or successor in interest), the court must proceed to distribute the residue of the estate in the hands of the executor or administrator, if any, among the persons who by law are entitled thereto; and if the decedent has left a surviving child, or the issue of a deceased child, and any of them, before the close of the administration, have died while under age and not having been married, no administration on such deceased child’s estate is necessary, but all the estate which such deceased child was entitled to by inheritance must, without administration, be distributed as provided in the Civil Code. ASupplemental accounting by executor. statement of any receipts and disbursements of the executor or administrator, since the rendition of his final account, must be reported and filed at the time of making such distribution; and a settlement thereof, together with an estimate of the expenses of closing the estate must be made by the court, and included in the order or decree, or the court or judge may order notice of the settlement of such supplementary account, and refer the same as in other cases of the settlement of accounts. Sec. 894. What the decree must contain, and is final.— In theContents and conclusiveness of decree. order or decree, the court must name the persons and the proportions or parts to which each shall be entitled, and such persons may demand, sue for, and recover their respective shares from the executor or administrator, or any person having the same in possession. Such order or decree is conclusive as to the rights of heirs, legatees, or devisees. Sec. 895. Distribution when decedent was not a resident of the Canal Zone.—Distribution of nonresident decedent’s estate. Upon application for distribution, after final settlement of the accounts of administration, if the decedent was a nonresident of the Canal Zone, leaving a will which has been duly proved or allowed in the state of his residence, and an authenticated copy thereof has been admitted to probate in the Canal Zone, or if the decedent died intestate, and an administrator has been duly appointed and qualified in the state of his residence, and it is necessary, in order that the estate, or any part thereof, may be distributed according to the will, or if the court is satisfied that it is for the best interests of the estate, that the estate in the Canal Zone should be delivered to the executor or administrator in the state or place of the decedent’s residence, the court may order such delivery to be made, and, if necessary, order a sale of the real estate, and a like delivery of the proceeds. The delivery, in accordance with the order of the court, is a full discharge of the executor or administrator with the will annexed or administrator, in the Canal Zone, in relation to all property embraced in such order, which binds and concludes all parties in interest. Sales of real estate, ordered by virtue of this section, must be made in the same manner as other sales of real estate of decedents by order of the court. Sec. 896.— Petition for final distribution; notice of hearing; contest; partition.—Petition for final distribution. The order or decree may be made on the petition of the executor or administrator, or of any person interested in the estate. When such petition is filed the clerk of the court mustNotice. set the petition for hearing by the court, and give notice thereof by 1068causing a notice to be posted at the courthouse where the court is held, setting forth the name of the estate, the executor or administrator, and the time appointed for the hearing of the petition. If, upon the hearing of the petition, the court or judge deems the notice insufficient from any cause, he may order such further notice to be Contest.given as may seem to him proper. At the time fixed for the hearing, or to which the hearing may be postponed, any person interested in the estate may appear and contest the petition by filing written Partition.objections thereto. If the partition is applied for, as provided in this chapter, the decree of distribution does not divest the court of jurisdiction to order partition, unless the estate is finally closed. Sec. 897. Continuation of administration; petition for.—Continuation of administration. In all cases where a decedent shall have left a will, in and by the terms of which the testator shall have limited the time for administration upon an estate left by him, and the executor, and all of the legatees or Petition for.devisees named in the will, shall file and present to the court a petition, in writing, representing that it will be for the best interests of the estate, and of the beneficiaries under the will, to have the administration upon the estate continued for a longer period of time than that designated in such will, and that it would be injurious to the estate, and to such beneficiaries, to have the administration brought to a close at the date therefor designated in the will. Notice and hearing.Hearing of petition and notice of.—The court shall then set a day for the hearing of said petition; and notice thereof shall be served on all persons interested in the estate, in the same manner that summons in civil actions is served. Upon the day set for such hearing (or upon some other day to which the hearing may have been continued), the court shall proceed to hear proofs touching the representations made in such petition—and any person interested in the estate may also present counter-proofs in opposition to said application. Decree.Decreeing continuance of administration.—And if, upon such hearing, it be made to appear to the court that the representations made by the petitioners in their said petition contained be true, the court may then, by its order and decree in that behalf, decree and direct that the administration upon the estate continue for and during such further period of time as in its judgment will best subserve the interests of the estate and of the beneficiaries under said will. *Proviso*.Petition to close administration.Petition to have administration closed.—*Provided*, *however*, That if, at any time during the period for which the administration upon the estate shall have been thus continued, the executor, or any one or more of the legatees or devisees, shall present to the court his or their petition, representing that it has become necessary for the best interests of the estate, and of the beneficiaries under the will, to have the administration upon the estate closed, the court shall then set a day for the hearing of said last-named Notice and hearing.petition; and notice thereof shall be given in the same manner, and the same proceedings be had thereupon, as shall have been given for and had upon the hearing of the petition asking for the continuation of such administration. And if, upon such hearing, it shall be made to appear to the court that the representations made by such petitioners or petitioner (as the case may be) are true, the Decree.court shall then, by its order and decree in that behalf, decree and direct that the administration upon the estate be closed as soon thereafter as, under the circumstances shall be practicable. Sec. 898. Distribution after death of heir, etc.—Distribution after death of heir, etc. If any heir, legatee, or devisee of an estate shall die before the distribution to him of any part thereof, then the property to which he might be 1069entitled, if living, shall be and become a part of his estate and the same may be distributed to the representative of his estate for the purpose of administration therein, with the same effect as if distributed to him if living. distribution and partitionDistribution and partition. Sec. 899. Estate in common; commissioners.— When the estate,Estates in common. real or personal, assigned by the decree of distribution to two or more heirs, devisees, or legatees, is in common and undivided, and the respective shares are not separated and distinguished, partition or distribution may be made by three disinterested persons, to be appointed commissioners for that purpose by the court, who mustBy commissioners. be duly sworn to the faithful discharge of their duties, a certified copy of the order of their appointment, and of the order or decree assigning and distributing the estate, must be issued to them as their warrant, and their oath must be indorsed thereon. Upon consent of the parties, or when the court deems it proper and just, it is sufficient to appoint one commissioner only, who has the same authority and is governed by the same rules as if three were appointed. Sec. 900. Partition and notice thereof, and the time of filing petition.—Petition for partition. Such partition may be ordered and had in the district court on the petition of any person interested. But before commissioners are appointed, or partition ordered by the court as directed in this chapter, notice thereof must be given to all personsNotice. interested who reside in the Canal Zone, or to their guardians, and to the agents, attorneys, or guardians, if any in the Canal Zone, of such as reside out of the Canal Zone, either personally or by public notice, as the court may direct. The petition may be filed, attorneys, guardians, and agents appointed, and notice given at any time before the order or decree of distribution, but the commissioners must not be appointed until the order or decree is made distributing the estate. Sec. 901. Partition may be made, although some of the heirs, and so forth, have parted with their interest.—Allowable, although some heirs, etc., have parted with interest. Partition or distribution of the estate may be made as provided in this chapter, although some of the original heirs, legatees, or devisees may have conveyed their shares to other persons, and such shares must be assigned to the person holding the same, in the same manner as they otherwise would have been to such heirs, legatees, or devisees. Sec. 902. Shares to be set out by metes and bounds.—Shares to be set out by metes and bounds. When both distribution and partition are made, the several shares in the real and personal estate must be set out to each individual in proportion to his right, by metes and bounds, or description, so that the same can be easily distinguished, unless two or more of the parties interested consent to have their shares set out so as to be held by them in common and undivided. Sec. 903. Whole estate may be assigned to one, in certain cases.—When estate can not be partitioned equitably. When the real estate can not be divided without prejudice or inconvenience to the owners, the court may assign the whole to one or more of the parties entitled to share therein, who will accept it, always preferring the males to the females, and, among children, preferring the elder to the younger. The parties accepting the wholeOwelty. must pay to the other parties interested their just proportion of the true value thereof, or secure the same to their satisfaction, or in case of the minority of such party, then to the satisfaction of his guardian; and the true value of the estate must be ascertained and reported by the commissioners. When the commissioners appointed 1070to make partition are of the opinion that the real estate can not be divided without prejudice or inconvenience to the owners, they Report by commissioners.must so report to the court and recommend that the whole be assigned as herein provided, and must find and report the true value of such real estate. On filing the report of the commissioners, and on making or securing the payment as before provided, the court, if it appears just and proper, must confirm the report, and thereupon the assignment is complete, and the title to the whole of such real estate vests in the person to whom the same is so assigned. Sec. 904. Payments for equality of partition, by whom and how.—Payments for equality of partition. When any tract of land or tenement is of greater value than any one’s share in the estate to be divided, and can not be divided without injury to the same, it may be set off by the commissioners appointed to make partition to any of the parties who will accept it, giving preference as prescribed in the preceding section. The party accepting must pay or secure to the others such sums as the commissioners shall award to make the partition equal, and the commissioners must make their award accordingly; but such partition must not be established by the court until the sums awarded are paid to the parties entitled to the same, or secured to their satisfaction. Sec. 905. Estate may be sold.—Sale of estate. When it appears to the court, from the commissioners’ report, that it can not otherwise be fairly divided and should be sold, the court may order the sale of the whole or any part of the estate, real or personal, by the executor or administrator, or by a commissioner appointed for that purpose, *Ante*, p. 1050.and the proceeds distributed. The sale must be conducted, reported, and confirmed in the same manner and under the same requirements provided in chapter 29 of this code. Sec. 906. To give notice to all persons and guardians before partition; duties of commissioners.—Notice before partition. Before any partition is made or any estate divided, as provided in this chapter, notice must be given to all persons interested in the partition, their guardians, agents, or attorneys, by the commissioners, of the time and place when and where they shall proceed to make partition. The commissioners may take testimony, order surveys, and take such other steps as may be necessary to enable them to form a judgment upon the matters before him. Sec. 907. To make report; setting aside report.—Report of commissioners. The commissioners must report their proceedings, and the partition agreed upon by them, to the court, in writing, and the court may, for sufficient Court may set aside report.reasons, set aside the report and commit the same to the same commissioners, or appoint others; and when such report is finally confirmed a certified copy of the judgment, or decree of partition made thereon, attested by the clerk under the seal of the court, must be recorded in the office of the registrar of property. Sec. 908. When commissioners to make partition are not necessary.—When partition commissioners not necessary. When the court makes a judgment or decree assigning the residue of any estate to one or more persons entitled to the same, it is not necessary to appoint commissioners to make partition or distribution thereof, unless the parties to whom the assignment is decreed, or some of them, request that such partition be made. Sec. 909. Advancements made to heirs.—Advancements to heirs. All questions as to advancements made, or alleged to have been made, by the decedent to his heirs, may be heard and determined by the court, and must be specified in the decree assigning and distributing the estate; and the final judgment or decree of the court is binding on all parties interested in the estate.1071 distribution to person whose address is unknown, and so forthDistribution to person whose address unknown, etc.Unfound distributee. Sec. 910. Distribution of estate to person whose address is unknown, and so forth.— When any estate is distributed by the judgment or decree of the court or judge, as provided in this chapter, to a distributee who can not be found and his or her place of residence is unknown or to a distributee who refuses to accept the same or toDistributee who refuses to accept.Minors, etc. give a proper voucher therefor, or to a minor or incompetent person, who has no lawful guardian to receive the same, or person authorized to receipt therefor, the portion of said estate consisting of moneyMoney to be deposited with collector of Panama Canal. shall be paid to and deposited with the collector of the Panama Canal, who shall give a receipt for the same, and shall be liable on his official bond therefor; and said receipt shall be deemed and received by the court or judge as a voucher in favor of said executor or administrator, with the same force and effect as if executed by the distributee thereof. And this section shall be applicable to any and all estates now pending in which a final decree of discharge has not been granted. Any person claiming to be entitled to any amount so depositedClaimants to funds in hands of collector, recovery. with the collector, may, within five years after such deposit, petition the court or judge for an order directing payment to the said distributee. A copy of such petition shall be served on the collector and thereafter no such amount shall be covered into the Treasury of the United States, as hereinafter directed, until so ordered by the court. If no one claims the amount, as herein provided, or if a claim beUnclaimed funds covered into Treasury. made and disallowed and the court so directs, such amount devolves to the United States and shall be covered into the Treasury by the collector as miscellaneous receipts. agents for absent interested parties; discharge of executor or administratorAgents for absent parties; discharge of executor, etc. Sec. 911. Court may appoint agent to take possession for absentees.—Agent to possess property for absentees. When any estate is assigned or distributed, by a judgment or decree of the court, as provided in this chapter, to any person residing out of, and having no agent in the Canal Zone, and it is necessary that some person should be authorized to take possession and charge of the same for the benefit of such absent person, the court may appoint an agent for that purpose and authorize him to take charge of such estate, as well as to act for such absent person in the distribution. Sec. 912. Agent to give bond, and his compensation.— The agentBond and compensation. must execute a bond to the Government of the Canal Zone, to be approved by the court or judge, conditioned that he shall faithfully manage and account for the estate. The court appointing such agent may allow a reasonable sum out of the profits of the estate for his services and expenses. Sec. 913. Unclaimed estate, how disposed of.— When personalUnclaimed estate, disposal. property remains in the hands of the agent unclaimed for a year, and it appears to the court that it is for the benefit of those interested, it shall be sold under the order of the court, and the proceeds after deducting the expenses of the sale, allowed by the court, mustProceeds paid to collector of Panama Canal. be paid to the collector of the Panama Canal. When the payment is made, the agent must take from the collector a receipt, which he must file in the court. Where any agent has money in his hands as such agent, and it appears to the court upon the settlement of his account as such agent that the balance remaining in his hands should be paid to the collector, the court may direct such payment and 1072upon such agent filing the proper receipt showing such payment, the court shall enter an order discharging such agent and his sureties from all liability therefor. All such funds shall be held and disposed of by the collector in the manner provided in section 910. Sec. 914. When real and personal property of absentee to be sold.—Real and personal property of absentee; disposal of. The agent must render the court appointing him, annually, an account, showing: 1. The value and character of the property received by him, what portion thereof is still on hand, what sold, and for what. 2. The income derived therefrom. 3. Expenses incurred in the care, protection, and management thereof, and whether paid or unpaid. When filed the court may examine witnesses and take proofs in regard to the account; and if satisfied from such accounts and proofs that it will be for the benefit and advantage of the persons interested therein, the court may, by order, direct a sale to be made of the whole or such parts of the real or personal property as shall appear to be proper, and the purchase money to be deposited with the collector. Sec. 915. Liability of agent on his bond.—Agent’s liability on bond. The agent is liable on his bond for the care and preservation of the estate while in his hands, and for the payment of the proceeds of the sale as required in the preceding sections, and may be sued thereon by any person interested. Sec. 916. Certificate to claimant.—Certificate to claimant. When any person appears and claims the money paid to the collector of the Panama Canal, the court making the distribution must inquire into such claim, and being first satisfied of his right thereto, must grant him a certificate to that effect, under its seal; and upon the presentation of the certificate to him, the auditor must draw his warrant on the collector for the amount. Sec. 917. Final settlement, decree, and discharge.—Final settlement, decree, and discharge. When the estate has been fully administered, and it is shown by the executor or administrator, by the production of satisfactory vouchers, that he has paid all sums of money due from him, and delivered up, under the order of the court, all the property of the estate to the parties entitled, and performed all the acts lawfully required of him, the court must make a judgment or decree discharging him from all liability to be incurred thereafter. Sec. 918. Discovery of property.—Discovery of property. The final settlement of an estate, as in this chapter provided, shall not prevent a subsequent issue of letters testamentary or of administration, or of administration with the will annexed, if other property of the estate be discovered, or if it become necessary or proper for any cause that letters should be again issued. accounts of trustees; distributionAccounts of trustees; distribution. Sec. 919. District court not to lose jurisdiction by final distribution.—Jurisdiction of district court to continue. Where any trust has been created by or under any will to continue after distribution, the district court shall not lose jurisdiction of the estate by final distribution, but shall retain jurisdiction thereof for the purpose of the settlement of accounts under the trusts. Accounting by trustee.Accounting by trustee.—And any trustee created by any will, or appointed to execute any trust created by any will, may, from time to time, pending the execution of his trust, or may, at the terminationPetition for settlement. thereof, render and pray for the settlement of his accounts as such trustee, before the court in which the will was probated, and in the manner provided for the settlement of the accounts of executors and administrators. The trustee, or, in case of his death, his 1073legal representatives, shall, for that purpose, present to the court his verified petition, setting forth his accounts in detail, with a report showing condition of trust estate, together with a verified statement of said trustee, giving the names and post-office addresses, if known, of the cestuis que trust, and upon the filing thereof, the clerk shall fix a day for the hearing, and give notice thereof of notNotice and hearing. less than ten days, by causing notices to be posted in at least three public places in the Canal Zone, setting forth the name of the trust estate, the trustee, and the day appointed for the settlement of the account. The court or judge may order such further notice to be given as may be proper. Such trustee may, in the discretion of the court, upon application of any beneficiary of the trust, or the guardian of such beneficiary, be ordered to appear and render his account, after being cited by service of citation, as provided for the service of summons in civil cases, and such application shall not be denied where no account has been rendered to the court within six months prior to such application. Upon the filing of the account so ordered, the same proceedings for the hearing and settlement thereof shall be had as hereinabove provided. Sec. 920. Compensation of trustees.— On all such accountings theCompensation. court shall allow the trustee or trustees the proper expenses and such compensation for services as the court may adjudge to be just and reasonable, and shall apportion such compensation among the trustees according to the services rendered by them respectively, and may in its discretion fix a yearly compensation for the trustee or trustees to continue as long as the court may judge proper. Sec. 921. Trustee may decline to act.— Any person named orRefusal to act as trustee. designated as a trustee in any will which has been or shall hereafter be admitted to probate in the Canal Zone may, at any time before final distribution, decline to act as such trustee, and an order of court shall thereupon be made accepting such resignation; but the declination of any such person who has qualified as trustee shall not be accepted by the court, unless the same shall be in writing and filed in the matter of the estate in the court in which the administration is pending, and such notice shall be given thereof as is required upon a petition praying for letters of administration. Appointment to vacancy.—The court in which the administrationFilling vacancy. is pending shall have power at any time before final distribution to appoint some fit and proper person to fill any vacancy in the office of trustee under the will, whether resulting from such declination, removal, or otherwise; provided, it shall be required by law or necessary to carry out the trust created by the will, that such vacancy shall be filled; and every person so appointed shall, before actingBond.*Ante*, p. 1034. as trustee, give a bond such as is required by section 731, of a person to whom letters of administration are directed to issue. Such appointment may be made by the judge upon the written application of any person interested in the trust filed in the probate proceedings, and shall only be made after notice to all parties interested in the trust, given in the same manner as notice is required to be given of the hearing upon the petition for the probate of a will. In each of the preceding cases the court may order such further notice as shall seem necessary. In accepting a declination under the provisions of this section, thePreservation of estate by court. court may make and enforce any order which may be necessary for the preservation of the estate. Sec. 922. Jurisdiction.— The provisions of section 921 shall applyJurisdiction. in all cases where a final decree of distribution has not been made; but the jurisdiction given by said section shall not exclude, in cases 1074to which it applies, the jurisdiction now possessed by the district court. CHAPTER 34.— ORDERS, DECREES, PROCESS, MINUTES, RECORDS, AND TRIALS IN PROBATE PROCEEDINGSORDERS, DECREES, ETC., PROBATE MATTERS. Sec. 923. Orders and decrees in probate proceedings.—Orders and decrees. Orders and decrees made by the court or judge, in probate proceedings, need not recite the existence of facts, or the performance of acts, upon which the jurisdiction of the court or judge may depend, but it shall *Ante*, pp. 1022–1078.only be necessary that they contain the matters ordered, or adjudged, except as otherwise provided in chapters 23 to 36 of this code. All orders and decrees of the court or judge must be entered at length in the minute book of the court or must be signed by the judge and filed; but decrees of distribution must always be so entered at length. Sec. 924. How often publication to be made.—Publication. When any publication is ordered, such publication must be made daily, or otherwise as often during the prescribed period as the paper is regularly issued, *Ante*, pp. 1022–1078.unless otherwise provided in chapters 23 to 36 of this code. The court, or judge may, however, order a less number of publications during the period. Sec. 925. Citation, how directed, and what to contain.—Citation, how directed; contents. Citations must be directed to the person to be cited, signed by the clerk, and issued under the seal of the court, and must contain: 1. The title of the proceeding; 2. A brief statement of the nature of the proceeding; 3. A direction that the person cited appear at a time and place specified. Sec. 926. Citation, how issued.—Issue of. The citation may be issued by the clerk upon the application of any party, without an order of the judge, except in cases in which such order is by the provisions of chapters 23 to 36 of this code expressly required. Sec. 927. Citation, how served.—Service of. The citation must be served in the same manner as a summons in a civil action. Sec. 928. Personal notice given by citation.—Personal notice by. When personal notice is required, and no mode of giving it is prescribed in chapters 23 to 36 of this code, it must be given by citation. Sec. 929. Citation to be served five days before return.—Service five days before return. When no other time is specially prescribed in chapters 23 to 36, citations must be served at least five days before the return-day thereof. Sec. 930. Rules of practice generally.—Rules of practice.*Ante*, pp. 1022–1078. Except as otherwise provided in chapters 23 to 36, the provisions of chapters 4 to 16 of this code are applicable to and constitute the rules of practice in the proceedings mentioned in said chapters 23 to 36. Sec. 931. New trials in probate proceedings.—New trials.*Ante*, pp. 916–998. The provisions of chapters 4 to 16 of this code, relative to new trials, except in so far as they are inconsistent with the provisions of chapters 23 to 36 of this code, apply to the proceedings mentioned in said chapters 23 to 36; provided, that hereafter a motion for a new trial in probate proceedings can be made only in cases of contests of wills, either before or after probate, in proceedings under section 892 and in those cases where the issues of fact, of which a new trial is sought, were tried by a jury or were of such character as to entitle the parties to have them tried by a jury whether or not they were so tried. Sec. 932. Issues joined in probate proceedings, how tried and disposed of.—Issues joined, trial and disposition of.*Ante*, p. 1025. All issues of fact joined in probate proceedings must be tried in conformity with the requirements of sections 672 to 678, and in all such proceedings the party affirming is plaintiff, and the one denying or avoiding is defendant. Judgments therein, on the issue 1075joined, as well as for costs, may be entered and enforced by execution or otherwise by the court as in civil actions. Sec. 933. Court must try issues joined when no jury is demanded; court must settle and frame issues when jury called.—Trial by court; framing of issues for jury. If no jury is demanded, the court must try the issues joined, and sign and file its decision in writing, as provided in sections 304 and 305. If, on written demand, a jury is called by either party, and the issues are not sufficiently made up by the written pleadings on file, the court, on due notice to the opposite party, must settle and frame the issues to be tried, and submit the same, together with the evidence of each pary11 So in original., to the jury, on which they must render aMotion for new trial. verdict. Either party may move for a new trial, upon the same grounds and errors, and in like manner, as provided in this code for civil actions. Sec. 934. Costs, by whom paid in certain cases.— When it is notCosts. otherwise prescribed in chapters 23 to 36, the district court, may, in its discretion, order costs to be paid by any party to the proceedings, or out of the assets of the estate, as justice may require. Execution for the costs may issue out of the district court. Sec. 935. Executor, and so forth, to be removed when committed for contempt, and an other appointed.—Removal of executor, etc., for contempt. Whenever an executor, administrator, or guardian is committed for contempt in disobeying any lawful order of the court or judge, and has remained in custody for thirty days without obeying such order, or purging himself otherwise of the contempt, the court may, by order reciting the facts, and without further showing or notice revoke his lettersAppointment of other. and appoint some other person entitled thereto executor, administrator, or guardian in his stead. Sec. 936. Service of process, and so forth, upon guardian.—Service upon guardian, etc. Whenever an infant, insane, or incompetent person has a guardian of his estate residing in the Canal Zone, personal service upon the guardian of any process, notice, or order of the court concerning the estate of a deceased person in which the ward is interested, is equivalent to service upon the ward, and it is the duty of the guardian to attend to the interests of the ward in the matter. Such guardian may also appear for his ward and waive any process, notice, or order to show cause which an adult or a person of sound mind might do. Sec. 937. Establishment of identity of heirs.— In every caseEstablishment of identity of heirs. where title to real or personal property, or any interest therein, shall have vested or may hereafter become vested, other than by the laws of succession, in the heirs, heirs of the body, issue, or children of any person, without other description or means of identification of the persons embraced in such description, any person interested in such property as such heir, heir of the body, issue, or child, or the successor in interest of any such heir, heir of the body, issue, or child, or the legal representatives of any of such persons or of their said successors in interest, may file a verified petition in the district court in and for the division wherein said property or any part thereof is situate, setting forth briefly the deraignment of title of petitioner, a description of the property affected, and the names, ages, and residences, if known, of the heirs, heirs of the body, issue, or children whose identity is sought to be determined (or if any of the same is dead or if the residence of any of the same is unknown, such facts shall be stated) and a request that a decree be entered in said court determining and establishing the identity of the persons embraced in such general description.1076 Notice for hearing on identity petition.Notice of the time and place for the hearing of said petition must be given by the clerk by posting notices thereof in three or more public places in the Canal Zone at least ten days prior to the date fixed by the clerk for said hearing. Contest.Who may contest petition.—At any time before the date fixed for such hearing any person interested in said property may answer said petition and deny any of the matters contained therein. Hearing and decree.Hearing and decree.—At the time fixed for such hearing or such time thereafter as may be fixed by the court, the court must hear the proofs offered by the petitioner, and of any person answering the same and must make a decree conformable to the proofs. Such decree shall have the same force and effect as decrees entered in accordance with the provisions of chapters 23 to 36 of this code. CHAPTER 35.— PUBLIC ADMINISTRATORPUBLIC ADMINISTRATOR. Cross Reference*Post*, p. 1083.Public administrator as guardian, see section 975. Sec. 938. Public administrator; appointment.—Appointment. There shall be in the Canal Zone a public administrator appointed by the Governor of the Panama Canal. Sec. 939. What estates to be administered by public administrator.—Estates administered by. The public administrator must take charge of the estates of persons dying within the Canal Zone, or who, dying elsewhere, leave estates in the Canal Zone, as follows: 1. Of the estate of decedents for which no administrators or executors are appointed, and which, in consequence thereof, may be wasted, uncared for, or lost; 2. Of the estate of decedents who have no known heirs; 3. Of the estates ordered into his hands by the court; and, 4. Of the estates upon which letters of administration or letters testamentary have been issued to him by the court. Sec. 940. Estates less than $150.—Estates less than $150. Whenever the public administrator shall file with the clerk of the district court a statement that the value of any estate, of which he has taken charge, is less than $150, there shall be no regular administration on such estate unless additional estate be found or discovered; and the public administrator may pay out such funds to the creditors, heirs, or other persons legally entitled thereto. Sec. 941. Burial expenses of deceased persons.—Burial expenses. Whenever the public administrator takes possession of the estate of a deceased person, as provided in section 939, and the method of the defrayal of the expense of the burial of said deceased is not otherwise provided for by law or by the rules, agreement, or death benefits of any order or lodge to which the deceased may at the time of his death belong, or with which he may have been affiliated, the public administrator may, in order to defray the proper expenses of the burial of the body Petition to sell property, etc., to defrayof the deceased and the expenses of the last illness, apply to the judge of the district court for an order permitting the public administrator to summarily sell any personal property belonging to the deceased, and to withdraw any money that the deceased may have on deposit with any bank, and to collect any indebtedness or claim that may be owing to or due the deceased. Notice unnecessary; no fee chargeable.No notice of the application need be given and no fee shall be charged by the clerk of the court or the public administrator for the filing of said application, or for any duty or service of the clerk or public administrator or his attorney connected therewith.1077 Upon the sale of the personal property of the deceased, or theUse of funds obtained. collection of any money, claim or indebtedness by the public administrator under said order the public administrator shall use the same for the expenses of the burial of the deceased, and the expenses of the last illness. The public administrator shall file with the clerk of the court aStatement and vouchers to be filed. statement showing the property of the deceased that came into his hands and the disposition of the property of the deceased, and shall file with the clerk vouchers showing what disposition was made of the said property or of the proceeds thereof. Sec. 942. Payment of salary or claims.— If a deceased or insanePayment of salary or claims. person shall have to his credit with The Panama Canal or the Panama Railroad Company, any sum as salary or other acknowledged claim, the amount so due shall be paid to the public administrator upon demand and be by him administered as a part of said person’s*Provisos*.When other regular administration. estate: *Provided*, That if there should be other regular administration upon such person’s estate in a court in the Canal Zone or in any State in the United States, then the sum due shall be paid to such other executor, administrator, or guardian upon presentation of duly authenticated copies of the order or decree appointing such executor, administrator, or guardian: *And provided further*, That in case theWhen sum due not in excess of $100. amount so due in salary or wages from The Panama Canal or Panama Railroad Company does not exceed $100 and it is shown that there is to be no administration of the deceased employee’s estate either by the public administrator or otherwise, then payment may be made to the person or persons who under the laws of the Canal Zone would be entitled to receive the same, if administration were had, under such regulations as may be prescribed by the Governor of the Panama Canal. Sec. 943. Disposition of estates of alien employees.— If a deceasedEstates of alien employees. intestate employee of The Panama Canal or the Panama Railroad Company, or member of his family, whose estate is being administered by the public administrator, leaves no heirs in the Canal Zone or the Republic of Panama entitled to receive such estate, the proceeds and residue thereof may be delivered to the diplomatic or consular representative, accredited to the Canal Zone or the Republic of Panama, of the country of which the deceased was a citizen or subject for delivery by such representative to the heirs of the deceased: *Provided*, That if the deceased was a citizen of the*Proviso*.When citizen of Republic of Panama. Republic of Panama, the residue of his estate may be delivered to his heirs in the Republic of Panama or to the authorities of the said Republic lawfully designated to receive the same. Sec. 944. When public administrator takes charge; his bond and oath.—When public administrator takes charge. Whenever a public administrator takes charge of an estate, of which he is entitled to take charge without letters of administration being issued, or under order of the court, he must, with all convenient dispatch, procure letters of administration thereon, in like manner and on like proceedings as letters of administrationOfficial bond and oath. are issued to other persons. His official bond and oath are in lieu of the administrator’s bond and oath. Sec. 945. Duty of persons in whose house any stranger dies.—Duty of persons in whose house stranger dies. Whenever a stranger, or person without known heirs, dies intestate in the house or premises of another, the possessor of such premises, or anyone knowing the facts, must give immediate notice thereof to the public administrator; and in default of so doing, he is liable for any damage that may be sustained thereby, to be recovered by the public administrator, or any party interested. Sec. 946. Must return inventory and administer estates according to chapters 23 to 36.—Inventory and account. The public administrator must make and 1078return a perfect inventory of all estates taken into his possession, administer and account for the same according to the provisions of *Ante*, pp. 1022–1078.chapters 23 to 36, subject to the control and directions of the court. Sec. 947. When another person is appointed administrator or executor, public administrator to deliver up the estate.—When another appointed administrator. If, at any time, letters testamentary or of administration are regularly granted to any other person on an estate of -which the public administrator has charge, he must, under the order of the court, account for, pay, and deliver to the executor or administrator thus appointed, all the money, property, papers, and estate of every kind in his possession or under his control. Sec. 948. Civil officers to give notice of waste to public administrator.—Notice by civil officers of waste to property, etc. All civil officers must inform the public administrator of all property known to them, belonging to a decedent, which is liable to loss, injury, or waste, and which, by reason thereof, ought to be in the possession of the public administrator. Sec. 949. Suits for property of decedents.—Institution of suits. The public administrator must institute all suits and prosecutions necessary to recover the property, debts, papers, and other estate of the decedent. Sec. 950. Order on public administrator to account.—Order to account. The court may, at any time, order the public administrator to account for and deliver all the money and property of an estate in his hands to the heirs, or to the executors or administrators regularly appointed. Sec. 951. Not to be interested in the payments for or on account of the estates in his hands.—No interest in estates in his hands. The public administrator must not be interested in expenditures of any kind made on account of any estate he administers; nor must he be associated, in business or otherwise, with any one who is so interested. Sec. 952. Commissions of public administrator.—Commissions.*Ante*, p. 1058. The commissions to be charged by the public administrator shall be as prescribed *Proviso*.No commission, when estate below $1,000.in section 858: *Provided*, That no commissions shall be charged where it appears that the total assets of the estate do not exceed $1,000 in value. The public administrator shall pay over all such fees to the Collector of the Panama Canal to be covered into the Treasury of the United States as miscellaneous receipts. Sec. 953. Public administrator to administer oaths.—Oaths to be administered by. The public administrator may administer oaths in regard to all matters touching the discharge of his duties, or the administration of estates in his hands. Sec. 954. Preceding chapters applicable to public administrator.—Further proceedings in administration by.*Ante*, pp. 1022–1074. When no direction is given in this chapter for the government or guidance of a public administrator in the discharge of his duties, or for the administration of an estate in his hands, the provisions of chapters 23 to 34 of this code must govern, except that wherever notice is required to be given, such notice may, in the discretion of the court, be waived or be given by posting. CHAPTER 36.— GUARDIAN AND WARDGUARDIAN AND WARD. guardians of minorsMinors. Sec. 955. Appointment of guardians.—Appointment of guardians. Either division of the district court, when it appears necessary or convenient, may appoint guardians for the persons and estates, or either of them, of minors who have no guardian legally appointed by will or deed, and who are inhabitants or residents of the division, or who reside without the Canal Zone and have estate within the division.1079 Such appointment may be made on the petition of a relative orBy petition. other person on behalf of the minor, or on the petition of the minor, if fourteen years of age. Notice of proceedings.—Before making such appointment, theNotice. court must cause such notice as such court deems reasonable to be given to any person having the care of such minor, and to such relatives of the minor residing in the Canal Zone as the court may deem proper. In all cases notice must be given to the parents of the minor or proof made to the court that their addresses are unknown, or that, for other reason, such notice can not be given. Temporary custody pending proceedings.—In all such proceedings,Temporary custody. when it appears to the satisfaction of the court, either from a verified petition, or from affidavits, that the welfare of the minor will be imperiled if such minor is allowed to remain in the custody of the person then having the care of such minor, the court may make an order providing for the temporary custody of such minor until a hearing can be had on such petition. Proceedings where minor liable to be carried out of canal zone.—When danger of removal from jurisdiction, etc.And when it appears to the court that there is reason to believe that such minor will be carried out of the jurisdiction of the court before which the application is made, or will suffer some irreparable injury before compliance with such order providing for the temporary custody of such minor can be enforced, such court may at the time of making such order providing for the temporary custody of such minor cause a warrant to be issued, reciting the facts, and directed to the marshal, commanding such officer to take such minor from the custody of the person in whose care such minor then is and place such minor in custody in accordance with the order of the court. Sec. 956. When minor may nominate guardian; when not.—By court. If the minor is under the age of fourteen years, the court may nominate and appoint his guardian. If he is fourteen years of age, he may nominate his own guardian, who, if approved by the court, must be appointed accordingly. Sec. 957. When appointment may be made by court, when minor is over fourteen.—Nomination by minor when reaching fourteen years of age. If the guardian nominated by the minor is not approved by the court, or if the minor resides out of the Canal Zone, or if, after being duly cited by the court, he neglects for ten days to nominate a suitable person, the court or judge may nominate and appoint the guardian in the same manner as if the minor were under the age of fourteen years. Sec. 958. Nomination by minors after arriving at fourteen.—Nomination by minor when reaching fourteen years of age. When a guardian has been appointed by the court for a minor under the age of fourteen years, the minor, at any time after he attains that age, may nominate his own guardian, subject to the approval of the court. Sec. 959. Who may be guardian; marriage of guardian does not affect guardianship.—Who may be guardian. The father or the mother of a minor child under the age of fourteen years, if found by the court competent to discharge the duties of guardianship, is entitled to be appointed a guardian of such minor child, in preference to any other person. The person nominated by a minor of the age of fourteen years as his guardian, whether married or unmarried, may, if found by the court competent to discharge the duties of guardianship, be appointed as such guardian. The authority of a guardian is not extinguishedAuthority not extinguished by marriage. nor affected by the marriage of the guardian. Sec. 960. Powers and duties of guardian.— Every guardianPowers and duties. appointed has the custody and care of the education of the minor, and the care and management of his estate, until such minor arrives at 1080the age of majority or marries, or until the guardian is legally discharged, unless he is appointed guardian only of the person of the ward. In that event, the guardian is charged with the custody of the ward, and must look to his support, health, and education. He may fix the residence of the ward at any place in the Canal Zone, but not elsewhere without the permission of the court. Sec. 961. Bond of guardian.—Bond. Before the order appointing any person guardian under this chapter takes effect, and before letters issue, the court shall require of such person a bond to the minor, with sufficient sureties, to be approved by the judge, and in such sum as he shall order, which sum shall not be less than twice the value of the personal property and the probable value of the annual rents, issues and profits of property belonging to the minor; where, however, a surety company is authorized by law to furnish such bond, the court in its discretion may fix the amount of the bond given by such surety company at not less than the value of the personal property and the probable value of the annual rents, issues and profits of property belonging to the minor conditioned that the guardian will faithfully execute the duties of his trust according to law, and the Conditions of.following conditions shall form a part of such bond without being expressed therein: 1. Inventory of estate of ward. To make an inventory of all the estate, real and personal of his ward, that comes to his possession or knowledge, and to return the same within such time as the court may order. 2. Management of. To dispose of and manage the estate according to law and for the best interest of the ward, and faithfully to discharge his trust in relation thereto, and also in relation to the care, custody, and education of the ward. 3. Accounting. To render an account on oath of the property, estate, and moneys of the ward in his hands, and all proceeds or interests derived therefrom, and of the management and disposition of the same, within three months after his appointment, and at such other times as the court directs, and at the expiration of his trust to settle his accounts with the court, or with the ward, if he be of full age, or his legal representatives, and to pay over and deliver all the estate, moneys, and effects remaining in his hands, or due from him on such settlement, Issue of letters.to the person who is lawfully entitled thereto. Upon filing the bond, duly approved, letters of guardianship must issue to the person appointed. In form the letters of guardianship must be substantially the same as letters of administration, and the oath of the guardian must be indorsed thereon that he will perform the duties of his office as such guardian according to law. Sec. 962. Court may insert conditions in order appointing guardian.—Insertion of conditions in order appointing, by court. When any person is appointed guardian of a minor, the court may, with the consent of such person, insert in the order of appointment, conditions not otherwise obligatory, providing for the care, treatment, education, and welfare of the minor and for the care and custody of his property. The performance of such conditions shall be a part of the duties of the guardian, for the faithful performance of which he and the sureties on his bond shall be responsible. Sec. 963. Recording letters of guardianship.—Recording letters. All letters of guardianship issued under the provisions of this chapter, with the affidavits and certificates thereon, must be recorded by the clerk of the court having jurisdiction of the persons and estates of the wards. Sec. 964. Maintenance of minor out of income of his property.—Maintenance of minor out of income of his property. If any minor having a father living has property,, the. income of which is sufficient for his maintenance and education in a manner more expensive than his father can reasonably afford, regard 1081being had to the situation of the father’s family and to all the circumstances of the case, the expenses of the education and maintenance of such minor may be defrayed out of the income of his own property, in whole or in part, as judged reasonable, and must be directed by the court; and the charges therefor may be allowed accordingly in the settlement of the accounts of his guardian. Sec. 965. Guardian to give bonds; powers limited.— Every testamentaryTestamentary guardian, bond; powers limited. guardian must qualify and has the same powers and must perform the same duties with regard to the person and estate of his ward as guardians appointed by the court, except so far as his powers and duties are legally modified, enlarged, or changed by the will by which such guardian was appointed, and except that such guardian need not give bond unless directed to do so by the court. Sec. 966. Power of court to appoint guardians and next friend not impaired.—Power of court to appoint guardian ad litem, etc., not impaired. Nothing contained in this chapter affects or impairs the power of the court to appoint a guardian to defend the interests of any minor interested in any suit or matter pending therein. Sec. 967. When power of guardian is superseded.— The power ofWhen power of guardian superseded. a guardian appointed by a court is superseded: 1. By order of the court; 2. If the appointment was macle solely because of the ward’s minority, by his attaining majority; 3. The guardianship over the person of the ward, by the marriage of the ward. Sec. 968. Special notice of administrative proceedings; demand for by relatives.—Special notice of administrative proceedings, demand for. At any time after the issuance of letters of guardianship upon the estate of any minor, insane, or incompetent person, any relative of the ward, or the attorney for such relative, may serve upon the guardian, or upon the attorney for the guardian, and file with the clerk of the court wherein administration of such ward’s estate is pending, a written request, stating that he desires special notice of any or all of the following-mentioned matters, steps, or proceedings in the administration of said estate, to wit: 1. Filing of the return of sales of any property of the ward’s estate. 2. Filing of accounts. 3. Filing of application for removal of ward’s property to any foreign jurisdiction. 4. Filing of petitions for partition of any property of the ward’s estate. 5. Proceedings for removal, suspension or discharge of the guardian, or final determination of the guardianship. Request what to state; notice of proceedings.—Such requestContents of request; notice. shall state the post-office address of such relative, or his attorney, and thereafter a brief notice of the filing of any such petitions, applications, or accounts, or proceedings, except petitions for sale of perishable property, or other personal propertv which will incur expense or loss by keeping, shall be addressed to such relative, or his attorney, at his stated post-office address, and deposited in the post office, within two days after the filing of such petition, account, application, or the commencement of such proceeding; or personal service of such notices may be made on such relative, or his attorney, within said two days, and such personal service shall be equivalent to such deposit in the post office, and proof of mailing or of personal service must be filed with the clerk before the hearing of any such matter. Finding that notice given.—If, upon the hearing it shall appearFinding that notice given. to the satisfaction of the court that the said notice has been regu-1082larly given, the court shall so find in its order or judgment, and such judgment shall be final and conclusive upon all persons. guardians of insane and incompetent persons in generalInsane and incompetents, in general.Guardians of. Sec. 969. Guardians of insane and other incompetent persons.— When it is represented to the district court or judge, upon verified petition of any relative or friend, that any person is insane, or from any cause mentally incompetent to manage his property, such court or judge must cause a notice to be given to the supposed insane or incompetent person of the time and place of hearing the case, not less than five days before the time so appointed, and such person, if able to attend, must be produced on the hearing, provided that when such person is a patient at a hospital in the Canal Zone, the certificate of the medical superintendent or acting medical superintendent of such hospital, to the effect that such patient is unable to attend on the hearing shall be prima facie evidence of such fact. Sec. 970. Appointment of guardian by court after hearing.—Appointment after hearing. If, after a full hearing and examination upon such petition, it appears to the court that the person in question is incapable of taking care of himself and managing his property, such court must appoint a guardian of his person and estate, or person or estate, with the powers and duties in this chapter specified. Sec. 971. Appointment as guardian.—Appointment as. In awarding letters of guardianship of the person and estate, or person or estate, of an *Post*, p. 1145.insane or incompetent person, the court shall appoint as guardian such person as may have been designated pursuant to section 166e of the Civil Code, in which cases such persons shall be appointed unless good cause to the contrary be shown. Sec. 972. Powers and duties of guardians.—Powers and duties. Every guardian appointed, as provided in the preceding section, has the care and custody of the person of his ward and the management of all his estate, or the care and custody of the person of his ward or the management of all his estate, according to the order of appointment, until such guardian is legally discharged, and he must give bond to such ward in like manner and with like conditions as before prescribed with respect to the guardian of a minor. Sec. 973. Proceeding for restoration to capacity.—Proceeding for restoration to capacity, by petition. Any person who has been declared insane or incompetent, or the guardian, or any relative of such person within the third degree, or any friend, may apply, by petition, to the division of the district court in which he was declared insane, to have the fact of his restoration to Verification.capacity judicially determined. The petition must be verified, and must state that such person is then sane or competent. Upon Day for hearing on.receiving the petition, the court must appoint a day for a hearing before the court, and, if the petitioner requests it, must order an investigation before a jury, which must be summoned and impaneled Notice.in the same manner as juries in civil actions. The court must cause notice of the trial to be given to the guardian of the person so declared insane or incompetent, if there is a guardian, and to his or her husband or wife, if there is one, and to his or her father or Trial.mother, if living in the Canal Zone. On the trial, the guardian or relative of the person so declared insane or incompetent, and, in the discretion of the court, any other person, may contest the right to the relief demanded. Witnesses may be required to appear and testify, as in civil cases, and may be called and examined by the Judgment.court on its own motion. If it is found that the person is of sound mind, and capable of taking care of himself and his property, his restoration to capacity must be adjudged, and the guardianship of such person, if such person is not a minor, must cease.1083 Sec. 974. Definition of incompetent.— The phrase “incompetent,”“Incompetent,” defined. “mentally incompetent,” and “incapable,” as used in this chapter, shall be construed to mean any person who, though not insane, is, by reason of old age, disease, weakness of mind, or from any other cause, unable, unassisted, to properly manage and take care of himself or his property, and by reason thereof would be likely to be deceived or imposed upon by artful or designing persons. Sec. 975. Public administrator as guardian of estates of insane employees, other insane or incompetent persons, and minors.—Public administrator as guardian. The public administrator shall take charge of estates of persons employed in the Canal Zone or the Republic of Panama by The Panama Canal or Panama Railroad Company or members of their families who have been adjudged insane by the district court or by a competent court of any State, where such estates consist of personal property and no legal guardian has been appointed. The district court may in its discretion appoint the public administratorAppointment as, in discretion of district court. guardian of the estate of any other insane or incompetent person or of any minor. The public administrator shall comply with all of the provisionsCompliance with guardianship requirements.*Provisos*.Official bond to satisfy.Waiving of notice. of this chapter with respect to the guardianship of similar estates by other persons: *Provided*, *however*, That his official bond and oath shall satisfy the requirements with respect to a guardian’s bond and oath: *And provided further*, That wherever notice is required to be given, such notice may, in the discretion of the court, be waived or be given by posting. Cross Reference Payment to public administrator of sums due insane persons from Canal or Railroad, see section 942. *Ante*, p. 1077. corozal hospital: admission, keeping, and discharge of personsCorozal Hospital. Sec. 976. Keeping of insane persons in jail.— No person underKeeping insane in jail. observation for insanity or declared to be insane shall be kept in jail, prison, or other similar institution, but shall be kept in suitable quarters within the Corozal Hospital or at such other place as may be deemed advisable by the superintendent of Corozal Hospital. Sec. 977. Admission of patients in general.— Except as otherwiseAdmission in general, to hospital. provided in respect to the admission of insane patients from the Republic of Panama, and the admission of members of the United States Army, Navy, and Marine Corps, and beneficiaries of the United States Public Health Service for observation and care pending their transfer to the United States, no person shall be admitted or detained as a patient in the Corozal Hospital except upon the order of the district judge of the Canal Zone, provided that if a patient is in a state of violent insanity he may be admitted at once by the superintendent of Corozal Hospital, without an order from the court, into the quarters provided for the observation of persons alleged to be insane, upon the written request of any physician employed by the United States Government; or such patient may be admitted to the observation quarters by said superintendent upon his own authority. It shall be the duty of the superintendent of Corozal Hospital toDuty of superintendent to file report. file a written report with the clerk of the district court within forty-eight hours after the patient has been admitted to the observation quarters, which report shall set out the name, age, and physical condition of the patient, together with the name of physician attending patient at time of admission, and as soon as the clerk shall have received the report, he shall enter it upon the docket and the district judge shall proceed to examine and determine the case in like manner 1084as if the petition had been presented to him prior to the patient’s admission into observation quarters. Sec. 978. Petition for confinement of insane persons.—Petition for confinement of insane. To obtain the judicial order provided for in section 977, it shall be necessary for a relative of the person alleged to be insane, or a physician or other interested person in the Canal Zone, to present a petition, duly subscribed and sworn to by the petitioner, to the judge of the district court, which petition shall state the sex, age, and nationality of patient, if known, and the facts showing the patient’s mental infirmity, and, if possible, the history of the case and the form of insanity with which he is suffering and the attending circumstances making it necessary that he be confined in the asylum. If such petition is presented by other than a relative, and there is a known relative within or near the Canal Zone, notice thereof shall be given to such relative. The petition shall be accompanied by a certificate signed by one or more reputable physicians to the effect that in their opinion such person is insane. Sec. 979. Hearing to be prompt; ordering custody for observation.—Prompt hearing. The petition provided for in section 978 shall take precedence over all other matters pending before the court, and if the facts stated therein are sufficient to satisfy the court of the insanity of the Custody for observation.person sought to be confined, orders shall be issued at once directing that the person alleged to be insane be taken in custody for observation. Sec. 980. Admission of patient for observation; report on sanity.—Admission of patient for. The order of the judge directing that the person alleged to be insane be placed under observation shall be sufficient authority for the superintendent of Corozal Hospital to admit the patient into the hospital or other suitable quarters and to detain him for the purpose of observation. Report on sanity.Within thirty days after the patient has been placed under observation the superintendent of Corozal Hospital shall file with the clerk of the court a written report stating whether the patient is sane or insane, and the facts upon which such statement is based. If the observation shall show that the patient is not insane he shall be set at liberty by the superintendent of Corozal Hospital at once, and such action shall be noted in the report submitted to the court. If the observation shall show that the patient is insane, it shall be the duty of the court to render judgment therein, either committing the patient to the Corozal Hospital or directing that he be turned over to his relatives or friends who are able and willing to care for him. Sec. 981. Contesting report on sanity.—Contest of. The relatives of the person alleged to be insane, or the district attorney, may appear and contest the report of the superintendent, and in such cases the judge shall hear the evidence presented by the parties and render judgment thereon, as provided in section 980. Sec. 982. Temporary release of patients.—Temporary release. Whenever any patient who is not serving a sentence for violation of the criminal laws, of the Canal Zone has shown such improvement in his mental condition as would, in the opinion of the superintendent, warrant his temporary release for the purpose of determining whether such improvement is permanent and would eventually warrant the. discharge of the patient, the superintendent may release such patient for such period as may be deemed proper by the superintendent after the latter by adequate investigation has satisfied himself that the patient has relatives or friends who are able and willing to receive and care for such patient. If, during such release, it shall appear to the superintendent that the patient should be discharged, a statement 1085as provided in section 984 hereof shall be filed with the clerk of the court. Sec. 983. Application for discharge of patient.— Any personApplication for discharge. interested in an inmate of the Corozal Hospital, who believes such inmate is improperly detained therein, may make application to the district judge for the discharge of such patient. Upon receipt of such application the judge shall issue an order to the superintendent of Corozal Hospital, to make a report on the patient’s condition, and upon the receipt of such report shall consider the case, and, in his discretion, may grant or deny the application. The judge may cause the patient to be examined by two competent physicians, who shall report in writing as to the condition of the patient. Sec. 984. Discharge of patients.— Any patients, except thoseDischarge. serving sentences for violation of the criminal laws of the Canal Zone, may be discharged by the superintendent. He shall file with the clerk of the court a written statement that in his judgment such patient has recovered or that the discharge will not be detrimental or dangerous to the public welfare or injurious to the patient: *Provided*, That before discharging any patient who has not recovered,*Proviso*.Provision for future care of discharged. the superintendent shall satisfy himself by adequate investigation that the relatives or friends of the patient are able and willing to receive and care for such patient or that suitable measures for deportation have been taken. Sec. 985. Committing insane prisoners to hospital; discharge.—Committing insane prisoner to hospital. If any person confined in a prison or penitentiary under the sentence of a court become insane, he shall be committed to the Corozal Hospital by the judge of the district court. In all such cases the provisions of sections 976 to 986 relating to the period of observation*Ante*, p. 1083. of the patient and the trial of the issue as to his insanity shall be observed. Whenever a person is committed to the Corozal Hospital under the provisions of this section, the order of commitment issued by the court shall include a statement of the offense of which the person was convicted, the term of his imprisonment and the date upon which said term is to expire. Should such personDischarge before expiration of sentence. be discharged from the Corozal Hospital before the date of the expiration of his term of imprisonment, he shall be returned to the penal institution from which he was taken. Sec. 986. No repeal of provisions respecting inquiry in to insanity of defendants.—Insane defendants, provisions of Code of Criminal Procedure on, not affected.*Ante*, p. 1083. Nothing contained in sections 976 to 985 shall be construed to repeal or modify the provisions of the Code of Criminal Procedure of the Canal Zone relating to the inquiry into the insanity of the defendants before trial or after conviction. Cross Reference Inquiry into sanity of defendants before trial or after conviction, see sections 353 to 358 of the Code of Criminal Procedure. Sec. 986½. Patients in classes excepted from the preceding sections 976 to 986, inclusive.—Patients in classes excepted from provisions herein.*Ante*, p. 1083.Insane, from Republic of Panama. Insane patients from the Republic of Panama may be admitted and detained in the Corozal Hospital, and discharged therefrom, in accordance with the existing agreements between the Canal Zone authorities and the Panaman authorities, or under such changes and modifications of said agreements as may be made from time to time. The superintendent of Corozal Hospital is authorized to receiveMembers of Army Navy, etc. and detain as patients, insane members of the United States Army, Navy, and Marine Corps, and beneficiaries of the United States Public Health Service, for observation and care pending their transfer to the United States, upon the order of the official in charge of the respective services in the Canal Zone.1086 powers and duties of guardiansPowers and duties of guardians. Sec. 987. Guardian to pay debts of ward from ward’s estate.—Payment of debts from ward’s estate. Every guardian appointed under the provisions of this chapter, whether for a minor or any other person, must pay all just debts due from the ward out of his personal estate and the income of his real estate, if sufficient; if not, then out of his real estate upon selling or mortgaging it and disposing of the proceeds in the manner provided in sections 997 to 1002. Sec. 988. Guardian to recover debts due his ward and represent him.—Recovery of debts, etc. Every guardian must settle all accounts of the ward, and demand, sue for, and receive all debts due to him, or may, with the approbation of the court, compound for the same and give discharges to the debtor, on receiving a fair and just dividend of his estate and effects; and he must appear for and represent his ward in all legal suits and proceedings, unless another person be appointed for that purpose. Sec. 989. Guardian to manage estate frugally, maintain ward and sell or mortgage real estate.—Management of estate. Every guardian must manage the estate of his ward frugally and without waste, and apply the income and profits thereof, as far as may be necessary, Support of ward.for the comfortable and suitable maintenance and support of the ward and his family, if there be any; and if such income and profits Sale or mortgage of real estate.be insufficient for that purpose, the guardian may sell or mortgage the real estate, as provided in this code, and must apply the proceeds of such sale or mortgage, as far as may be necessary, for the maintenance and support of the ward and his family, if there be any. Sec. 990. Support of wife from her estate.—Support of wife from her estate. If the husband is unable to provide suitably for the care or support of a wife over whose estate a guardian has been appointed by reason of incompetency, the expense of providing such care or support, may, to the extent necessary, be charged against and defrayed out of such estate, as previously directed by the court or as subsequently approved by the court in settling the accounts of the guardian of the estate; for this purpose the guardian may sell or mortgage estate of the ward as provided in this code. Sec. 991. Maintenance, support, and education of ward, how enforced.—Maintenance, support, education of ward, how enforced. When a guardian has advanced, for the necessary maintenance, support, or education of his ward, an amount not disproportionate to the value of his estate or his condition of life, and the same is made to appear to the satisfaction of the court, by proper vouchers and proofs, the guardian must be allowed credit therefor in his settlements. Whenever a guardian fails, neglects, or refuses to furnish suitable and necessary maintenance, support, or education for his ward, the court may order him to do so, and enforce such order by proper process. Whenever any third person, at his request, supplies a ward with such suitable and necessary maintenance, support, or education, and it is shown to have been done after refusal or neglect of the guardian to supply the same, the court may direct the guardian to pay therefor out of the estate, and enforce such payment by due process. Sec. 992. Guardians, powers of, in partition.—Powers of guardian, partition proceedings. The guardian may join in and assent to a partition of the real or personal estate of the *Proviso*.Prior authorization by court.ward, wherever such assent may be given by any person: *Provided*, That such assent can only be given after the court having jurisdiction over said estate shall grant an order conferring such authority, which order shall only be made after a hearing in open court upon 1087the petition of the guardian after notice of at least ten days, mailed by the clerk of the court to all the known relatives of the ward residing in the Canal Zone. The guardian may also consent to a partition of the real or personal estate of his ward without action, and agree upon the share to be set off to such ward, and may execute a release in behalf of his ward to the owners of the shares, of the parts to which they may be respectively entitled, upon obtaining from said court having jurisdiction over said estate, authority to so consent after a hearing in open court upon the petition of the guardian after notice of at least ten days, mailed by the clerk of the court to all the known relatives of the ward residing in the Canal Zone. Sec. 993. Inventory of ward’s estate; refusal of guardian to return inventory.—Inventory of estate. Every guardian must return to the court a verified inventory of the estate of his ward within thirty days after his appointment. He must annually thereafter, and at such other times as directed by the court, render a verified account of the estate of his ward. All the estate of the ward described in the first inventory must be appraised by appraisers, appointed, sworn, and acting in the manner provided for regulating the settlement of the estates of decedents. Such inventory, with the appraisement of the property therein described, must be recorded by the clerk of the court in a proper book kept in his office for that purpose. Whenever any other property of the estate of any ward is discovered, not included in the inventory of the estate already returned, and whenever any other property, has been succeeded to, or acquired by any ward, or for his benefit, the like proceedings must be had for the return and appraisement thereof and the service of the same as are herein provided in relation to the first inventory and return. If within theRefusal to return. time prescribed, or within such further time, not exceeding two months which the court or judge shall for reasonable cause allow, the guardian neglects or refuses to return the inventory or render his account, the court may, upon notice, revoke the letters of guardianship and the guardian shall be liable on his bond for any injury to the estate, or any person interested therein, arising from such failure. Sec. 994. Account of guardian.— The guardian must upon theAccounting of. expiration of a year from the time of his appointment and as often thereafter as he may be required, present his account to the court for settlement and allowance. The termination of the relation of guardian and ward by the death of either guardian or ward or by the ward attaining his majority or being restored to capacity shall not cause the court to lose jurisdiction of the proceeding for the purpose of settling the accounts of the guardian. Sec. 995. Allowance of accounts of joint guardians.— WhenAllowance of accounts, joint guardians. an account is rendered by two or more joint guardians, the court may, in its discretion, allow the same upon the oath of any of them. Sec. 996. Expenses and compensation of guardians.— EveryExpenses and compensation. guardian must be allowed the amount of his reasonable expenses incurred in the execution of his trust, and he must also have such compensation for his services as the court in which his accounts are settled deems just and reasonable. He must also be allowed all reasonable and proper disbursements, made after the legal termination of the guardianship, but while that relation, by consent or acquiescence of the parties, still subsists in fact, and before the discharge of the guardian by the court, and which were made by the consent, express or implied, of the ward, and for his benefit or the benefit of his estate.1088 sale of property and disposition of the proceedsSale of property, etc. Sec. 997. When in come from ward’s estate is insufficient.—Authority for, when insufficient income from estate. When the income of an estate under guardianship is insufficient to maintain the ward and his family or to maintain and educate the ward when a minor, or to pay for his care, treatment, and support, if confined in a hospital for the insane in the Canal Zone, his guardian may sell his real or personal estate, or mortgage the real estate for that purpose subject to confirmation of such sale or mortgage by the court. Sec. 998. Application of proceeds of sales.—Application of proceeds. If the estate is sold for the purposes mentioned in this subchapter, the guardian must apply the proceeds of the sale to such purposes, as far as necessary, and put out the residue, if any, on interest, or invest it in the best manner in his power, until the capital is wanted for the maintenance of the ward and his family, or the education of his children, or for the education of the ward when a minor, in which case the capital may be used for that purpose, as far as may be necessary, in like manner as if it had been personal estate of the ward. Sec. 999. Investment of proceeds of sales.—Investment of. If the estate is sold for the purpose of putting out or investing the proceeds, the guardian must make the investment according to his best judgment, or in pursuance of any order that may be made by the court. Sec. 1000. Sales of property to conform to law governing executors.—Sales to conform to law governing executors.*Ante*, pp. 1022–1076. All the proceedings by guardians concerning sales of property of their wards, giving notice of sale, reselling the same property, return of sale and application for confirmation thereof, notice and hearing of such application, making orders rejecting or confirming sales and reports of sales, ordering and making conveyances of property sold, allowance of commissions, accounting and settlement of accounts, must be had and made as required by the provisions of chapters 23 to 35 of this code concerning estates of decedents, unless otherwise specially provided in this chapter. All known relatives of the ward within the third degree residing in the Canal Zone whose addresses are known to the guardian shall within two days after filing of the return of sale be served by mail with a brief notice of the time set for hearing of the return. Sec. 1001. Proceedings for completion of sales by guardians.—Proceedings in sale of real property. All proceedings for the completion of contracts for the sale of real estate by guardians must be had and made as required by the provisions*Ante*, pp. 1056–1057. of chapters 23 to 35 of this code concerning the conveyance of real estate by executors and administrators under sections 841 to 851, and said sections are hereby made applicable to conveyances *Post*, p. 1091.by guardians as provided by section 1021. Sec. 1002. Court may order the investment of money of the ward.—Investment of money by order of court. The court, on the application of a guardian, or any person interested in the estate of any ward, after such notice to persons interested therein as the court shall direct, may authorize and require the guardian to invest the proceeds of sales, and any other of his ward’s money in his hands, in any manner most to the interest of all concerned therein, and the court may make such other orders and give such directions as are needful for the management, investment, and disposition of the estate and effects as circumstances require. nonresident guardians and wardsNonresident guardians and wards. Sec. 1003. Guardians of nonresident persons.—Appointment of. The district court may appoint a guardian of the person and estate, or either, of a minor, insane, or incompetent person, who has no guardian within 1089the Canal Zone, legally appointed by will, deed, or otherwise, and who resides without the Canal Zone, and has estate within the division or, who, though not having such estate, is within the division, upon petition of any friend of such person or any one interested in his estate, in expectancy or otherwise. Before making such appointment, the court must cause notice to be given to all persons interested, in such manner as such court deems reasonable. Sec. 1001. Powers and duties of guardians appointed under preceding section.—Powers and duties. Every guardian, appointed under section 1003, has the same powers and performs the same duties, with respect to the estate of the ward found within the Canal Zone, and with respect to the person of the ward, if he shall come to reside therein, as are prescribed with respect to any other guardian appointed under this chapter. Sec. 1005. Such guardians to give bonds.— Every guardian mustBond. give bond to the ward, in the manner and with the like conditions as hereinbefore provided for other guardians, except that the provisions respecting the inventory, the disposal of the estate and effects, and the account to be rendered by the guardian, must be confined to such estate and effects as come to his hands in the Canal Zone. Sec. 1006. To what guardianship shall extend.— The guardianshipExtent of guardianship. which is first lawfully granted of any person residing without the Canal Zone extends to all the estate of the ward within the Canal Zone. Sec. 1007. Removal of nonresident ward’s property.— When theRemoval of property. guardian and ward are both nonresidents, and the ward is entitled to property in the Canal Zone, which may be removed to a state or foreign country without conflict with any restriction or limitation thereupon, or impairing the right of the ward thereto, such property may be removed to the state or foreign country of the residence of the ward, upon the application of the guardian to the division ofApplication for. the district court in which the estate of the ward, or the principal part thereof, is situated. Sec. 1008. Proceedings on such removal.— The application mustProcedure on. be made upon ten days’ notice to the resident executor, administrator, or guardian, if there be such, and upon such application the nonresident guardian must produce and file a certificate, under theCertificate to be filed; contents. hand of the clerk and seal of the court, from which his appointment was derived, showing: 1. A transcript of the record of his appointment. 2. That he has entered upon the discharge of his duties. 3. That he is entitled, by the laws of the State, of his appointment to the possession of the estate of the ward or must produce and file a certificate, under the hand and seal of the clerk of the court having jurisdiction in the country of his residence, of the estates of persons under guardianship, or of the highest court of such country, attested by a minister, consul, or vice consul of the United States, resident in such country, that, by the laws of such country, the applicant is entitled to the custody of the estate of his ward, without the appointment of any court. Upon such application, unless good causeOrder. to the contrary is shown, the court must make an order granting to such guardian leave to take and remove the property of his ward to the State or place of his residence, which is authority to him to sue for and receive the same in his own name, for the use and benefit of his ward. Sec. 1009. Discharge of guardians.—Discharge. Such order is a discharge of the executor, administrator, local guardian, or other person in whose possession the property may be at the time the order is made, on filing with the clerk of the court a receipt therefor of a foreign 1090guardian of such absent ward, and transmitting a duplicate receipt, or a certified copy of such receipt, to the court from which such nonresident guardian received his appointment. general and miscellaneous provisionsGeneral and miscellaneous provisions. Sec. 1010. Examination of persons suspected of defrauding wards or concealing property.—Examination of persons suspected of defrauding wards, etc. Upon complaint made by any guardian, ward, creditor, or other person interested in the estate, or having a prospective interest therein as heir or otherwise, against any one suspected of having concealed, embezzled, smuggled, or fraudulently disposed of, any of the money, goods, or effects, or an instrument in writing belonging to the ward or to his estate, the district court may cite such suspected person to appear before such court, and may examine and proceed against him on such charge in the manner provided in chapters 23 to 35 with respect to persons suspected of and charged with concealing, embezzling, smuggling, or fraudulently disposing of the effects of a decedent. Sec. 1011. Removal and resignation of guardian, and surrender of estate.—Removal and resignation of guardian, surrender of estate. When a guardian, appointed either by the testator or the court, becomes insane or otherwise incapable of discharging his trust or unsuitable therefor, or has wasted or mismanaged the estate, or failed for thirty days to render an account or make a return, the district court may, upon such notice to the guardian as the court may require, remove him and compel him to surrender the estate of the ward to the person found to be lawfully entitled thereto. Every guardian may resign when it appears proper to allow the same; and upon the resignation or removal of a guardian, as herein provided, the court may appoint another in the place of the guardian who resigned or was removed. Sec. 1012. Guardianship, how terminated.— The marriage of aTermination of guardianship. minor ward terminates the guardianship of the person of such ward, but not the estate; and the guardian of an insane or other person may be discharged by the court, when it appears on the application of the ward or otherwise, that the guardianship is no longer necessary. Sec. 1013. Newbond, when required.—New bond. The court may require a new bond to be given by a guardian whenever such court deems it necessary, and may discharge the existing sureties from further liability, after due notice given as such court may direct, when it shall appear that no injury can result therefrom to those interested in the estate. Sec. 1014. Guardian’s bond to be filed; action on.—Filing of bond; action on. Every bond given by a guardian must be filed and preserved in the office of the clerk of the district court, and in case of a breach of a condition thereof, may be prosecuted for the use and benefit of the ward, or of any person interested in the estate. Sec. 1015. Limitation of actions on guardian’s bond.—Period of limitation on. No action can be maintained against the sureties on any bond given by a guardian, unless it be commenced within three years from the discharge or removal of the guardian; but if at the time of such discharge the person entitled to bring such action is under any legal disability to sue, the action may be commenced at any time within three years after such disability is removed. Sec. 1016. Limitation of actions for the recovery of property sold.—Limitation of actions for recovery of property sold. No action for the recovery of any estate, sold by a guardian, can be maintained by the ward, or by any person claiming under him, unless it is commenced within three years next after the termination of the guardianship, or when a legal disability to sue exists by reason of minority or otherwise, at the time when the cause of action accrues, within three years next after the removal thereof.1091 Sec. 1017. More than one guardian of a person maybe appointed.— The court, in its discretion, whenever necessary, mayAppointment of more than one guardian. appoint more than one guardian of any person subject to guardianship, each of whom must give a separate bond, and be governed and liable in all respects as a sole guardian. Sec. 1018. Order appointing guardian, how entered.— Any orderEntry of order appointing guardian. appointing a guardian becomes a decree of the court and must be entered at length in the minute book of the court or must be signed by the judge and filed. The provisions of chapters 23 to 35 relative to the estates of decedents,Practice, rules of, relating to estates of decedents, to govern.*Ante*, pp. 1022–1076. so far as they relate to the practice in the district court, apply to proceedings under this chapter. Sec. 1019. Provisions of sections 532 and 533 apply to guardians.—Sureties, qualifications, etc., of.*Ante*, p. 1001. The provisions of sections 532 and 533 are hereby declared to apply to guardians appointed by the court, and to the bonds taken or to be taken from such guardians, and to the sureties on such bonds. Sec. 1020. Court may make decree authorizing guardian to make conveyance for incompetent.—Decree authorizing guardian to make conveyances of realty, pursuant to contract. When a person who is bound by a contract in writing to convey any real estate shall afterwards and before making the conveyance become and be adjudged to be an incompetent person, the court may make a decree authorizing and directing his guardian to convey such real estate to the person entitled thereto. Such decree may be made under the provisions of sectionsProcedure.*Ante*, pp. 1056–1057. 841 to 851, all of which provisions are hereby incorporated in this section; the word incompetent being substituted for the word deceased or decedent and the word guardian being substituted for the words administrator or executor, respectively, wherever said words occur. Sec. 1021. Conveyance by guardian.— When a person who isWhen contract made by ward’s ancestor, etc. bound by contract in writing to convey any real estate, or to transfer any personal property, dies before making conveyance or transfer, and in all cases when such decedent, if living might be compelled to make such conveyance or transfer, the court, having jurisdiction of the guardianship proceedings of such minor may make a decree authorizing and directing the guardian of any minor, who has succeeded by distribution to the estate of such deceased person, to convey or transfer such real estate or personal property to the person entitled thereto. Sec. 1022. Attorney’s fees against minor fixed by court; judgment not in excess of $500.—Attorney’s fees against minor fixed by court. All contracts for attorney’s fees made by or for the benefit of minors shall be void, and whenever a judgment shall be recovered by or on behalf of a minor, the attorney’s fees chargeable against said minor shall be fixed by the court in which said judgment is rendered; and if said judgment is for money, and there is no general guardian of said minor, one shall be appointed by the court, and the entire amount of the judgment shall be paid to and shall be cared for by such general guardian, under the control of the court: *Provided*, That where a minor has brought an action*Proviso*.Payment of judgment below $500 recovered by minor. by a guardian ad litem and has recovered a money judgment not in excess of $500, exclusive of costs, and the guardian ad litem is a parent or blood relative of said minor, then, with the approval of the court that rendered the judgment the whole amount of said judgment may be paid directly to such guardian ad litem without any bond being required therefor. The court in any of the cases provided for herein may direct the amount fixed as attorney’s fees to be paid directly to the attorney, and the balance to be paid to such guardian ad litem of said minor, or to the general guardian of said minor if a general guardian has been appointed or is required by the court.1092 Sec. 1023. Parent’s right to compromise claim of minor.—Compromise of minor’s claim by parent. Where a minor shall have a disputed claim for money against a third person, the father, and if the father be dead or has deserted or abandoned the minor, then the mother of said minor, shall have the right Validity subject to approval of district court.to compromise such claim, but before the compromise shall be valid or of any effect the same shall be approved by the division of the district court where the minor resides, upon a verified petition in writing, regularly filed with said court. If the court approves such Disposition of money.compromise, the said district court may direct the money paid to the father or mother of such minor, with or without the filing of any bond, or it may require a general guardian or guardian ad litem to be duly appointed and the money to be paid to such guardian or guardian ad litem with or without a bond as in the discretion of the court seems to the best interests of said minor. The clerk of the district court shall not charge any fee for filing said petition for leave to compromise or for placing the same upon the calendar to be heard by the court. CHAPTER 37.— ESTATES OF MISSING PERSONSESTATES OF MISSING PERSONS. Sec. 1024. Trustees of the estates of missing persons; appointment of, by the court.—Appointment of trustees for. Whenever any resident of the Canal Zone, who owns or is entitled to the possession of any real or personal property situate therein, is missing, or his whereabouts unknown, Petition for.for ninety days, and a verified petition is presented to the division of the district court of which he is a resident by his wife or any of his family or friends, representing that his whereabouts has been, for such time, and still is, unknown, and that his estate requires attention, supervision, and care of ownership, the court must order such petition to be filed, and appoint a day for its hearing, not less than ten days from the date of the order. Notice and hearing.Notice and hearing.—The clerk of the court must thereupon publish, for at least ten days prior to the day so appointed, a notice in some newspaper of general circulation in the Canal Zone, stating that such petition will be heard at the court room of the court at the time appointed for the hearing. The court may direct further notice of the application to be given in such manner and to such persons as it may deem proper. At the time so fixed for such hearing, or at any subsequent time to which the hearing may be postponed, the court must hear the petition and the evidence offered in support of or in opposition thereto, and, if satisfied that the allegations thereof are true, and that such person remains missing, and his whereabouts unknown, must appoint some suitable person to take charge and possession of such estate, and manage and control it under the direction of the court. Preference of wife or nominee.Preference of wife or nominee.—In appointing a trustee, the court must prefer the wife of the missing person (if any such there is), or her nominee, and, in the absence of a wife, some person, if such there is who is willing to act, entitled to participate in the distribution of the missing person’s estate were he dead. Sec. 1025. Bonds to be given by trustees.—Bond.*Ante*, p. 1034. Every person appointed under the provisions of section 1024 must give bond in the amount and as provided for in section 731. Sec. 1026. Powers and duties of trustees.—Powers and duties. The trustee must take possession of the real and personal estate in the Canal Zone of such missing person, and collect and receive the rents, income, and proceeds thereof, collect all indebtedness owing to him, and pay the expenses thereof out of the trust funds, and pay such indebtedness of the missing person as may be authorized by the court. The court 1093may direct the trustee to pay to the person or persons constituting the family of the missing person such sum or sums of money for family expenses and support from the income of the estate as it may, from time to time, determine. The trustee must, from time to time, when directed by the court, account to and with it for all his acts as trustee, and the court may, at any time, upon good cause shown, remove any trustee, and appoint another in his place. CHAPTER 38.— EVIDENCEEVIDENCE. general definitions and divisionsGeneral definitions and divisions. Sec. 1027. Definition of evidence.— Judicial evidence is the“Evidence.” means, sanctioned by law, of ascertaining in a judicial proceeding the truth respecting a question of fact. Sec. 1028. Definition of proof.— Proof is the effect of evidence,“Proof.” the establishment of a fact by evidence. Sec. 1029. Definition of law of evidence.— The law of evidence,“Law of evidence.” which is the subject of this chapter, is a collection of general rules established by law: 1. For declaring what is to be taken as true without proof; 2. For declaring the presumptions of law, both those which are disputable and those which are conclusive; and 3. For the production of legal evidence; 4. For the exclusion of whatever is not legal; 5. For determining, in certain cases, the value and effect of evidence. Sec. 1030. Degree of certainty required to establish facts.—Degree of certainty required. The law does not require demonstration; that is, such a degree of proof as, excluding possibility of error, produces absolute certainty; because such proof is rarely possible. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind. Sec. 1031. Four kinds of evidence specified.— There are fourKinds of evidence. kinds of evidence: 1. The knowledge of the court. 2. The testimony of witnesses. 3. Writings. 4. Other material objects presented to, the senses. Sec. 1032. Several degrees of evidence specified.— There areDegrees. several degrees of evidence: 1. Primary and secondary. 2. Direct and indirect. 3. Prima facie, partial, satisfactory, indispensable, and conclusive. Sec. 1033. Primary evidence defined.— Primary evidence is that“Primary evidence.” kind of evidence which, under every possible circumstance, affords the greatest certainty of the fact in question. Thus, a written instrument is itself the best possible evidence of its existence and contents. Sec. 1034. Secondary evidence defined.— Secondary evidence is“Secondary.” that which is inferior to primary. Thus, a copy of an instrument or oral evidence of its contents is secondary evidence of the instrument and contents. Sec. 1035. Direct evidence defined.— Direct evidence is that“Direct.” which proves the fact in dispute, directly, without an inference or presumption, and which in itself, if true, conclusively establishes that fact. For example, if the fact in dispute be an agreement, the evidence of a witness who was present and witnessed the making of it, is direct.1094 Sec. 1036. Indirect evidence defined.—"Indirect.” Indirect evidence is that which tends to establish the fact in dispute by proving another, and which, though true, does not of itself conclusively establish that fact, but which affords an inference or presumption of its existence. For example, a witness proves an admission of the party to the fact in dispute. This proves a fact, from which the fact in dispute is inferred. Sec. 1037. Prima facie evidence defined.—“Prima facie.” Prima facie evidence is that which suffices for the proof of a particular fact, until contradicted and overcome by other evidence. For example, the certificate of a recording officer is prima facie evidence of a record, but it may afterwards be rejected upon proof that there is no such record. Sec. 1038. Partial evidence defined.—Partial.” Partial evidence is that which goes to establish a detached fact, in a series tending to the fact in dispute. It may be received, subject to be rejected as incompetent, unless connected with the fact in dispute by proof of other facts. For example, on an issue of title to real property, evidence of the continued possession of a remote occupant is partial, for it is of a detached fact, which may or may not be afterwards connected with the fact in dispute. Sec. 1039. Indispensable evidence defined.—"Indispensable.” Indispensable evidence is that without which a particular fact can not be proved. Sec. 1040. Conclusive evidence defined.—“Conclusive.” Conclusive or unanswerable evidence is that which the law does not permit to be contradicted. For example, the record of a court of competent jurisdiction can not be contradicted by the parties to it. Sec. 1041. Cumulative evidence defined.—“Cumulative.” Cumulative evidence is additional evidence of the same character, to the same point. Sec. 1042. Corroborative evidence defined.—“Corroborative.” Corroborative evidence is additional evidence of a different character, to the same point. general principles of evidenceGeneral principles. Sec. 1043. One witness sufficient to prove a fact.—Sufficiency of single witness. The direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact, except perjury and treason. Sec. 1044. Testimony confined to personal knowledge.—Testimony confined to personal knowledge. A witness can testify of those facts only which he knows of his own knowledge;Exceptions; opinion, hearsay. that is, which are derived from his own perceptions, except in those few express cases in which his opinions or inferences, or the declarations of others, are admissible. Sec. 1045. Testimony to be in presence of persons affected.—Testimony under oath and in open court. A witness can be heard only upon oath or affirmation, and upon a trial he can be heard only in the presence and subject to the examination of all the parties, if they choose to attend and examine. Sec. 1046. Witness presumed to speak the truth.—Credibility of. A witness is presumed to speak the truth. This presumption, however, may be repelled by the manner in which he testifies, by the character of his testimony, or by evidence affecting his character for truth, honesty, or integrity, or his motives, or by contradictory evidence; and the jury are the exclusive judges of his credibility. Sec. 1047. Rights of one person not affected by act of another.—Rights of party not affected by act of another. The rights of a party can not be prejudiced by the declaration, act, or omission of another, except by virtue of a particular relation between them; therefore, proceedings against one can not affect another. Sec. 1048. Declarations of predecessor in title evidence.—Declarations of predecessor in title. Where, however, one derives title to real property from another, the 1095declaration, act, or omission of the latter, while holding the title, in relation to the property, is evidence against the former. Sec. 1049. Declarations which are a part of the transaction.—Declarations a part of transaction. Where, also, the declaration, act, or omission forms part of a transaction, which is itself the fact in dispute, or evidence of that fact, such declaration, act, or omission is evidence, as part of the transaction. Sec. 1050. Evidence relating to third person.— And where theRelating to third person. question in dispute between the parties is the obligation or duty of a third person, whatever would be the evidence for or against such person is prima facie evidence between the parties. Sec. 1051. Declaration of decedent evidence of pedigree.— ThePedigree, declaration of decedent. declaration, act, or omission of a member of a family who is a decedent, or out of the jurisdiction, is also admissible as evidence of common reputation, in cases where, on questions of pedigree, such reputation is admissible. Sec. 1052. Declaration of decedent evidence against his successor in interest.—Against interest. The declaration, act, or omission of a decedent, having sufficient knowledge of the subject, against his pecuniary interest, is also admissible as evidence to that extent against his successor in interest. Sec. 1053. When part of a transaction proved, the whole is admissible.—When part of transaction proved, whole is admissible. When part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing, which is necessary to make it understood, may also be given in evidence. Sec. 1054. Contents of writing, how proved.— There can be noProof of writing. evidence of the contents of a writing, other than the writing itself, except in the following cases: 1. When the original has been lost or destroyed; in which case“Best evidence available.” proof of the loss or destruction must first be made. 2. When the original is in possession of the party against whom the evidence is offered, and he fails to produce it after reasonable notice. 3. When the original is a record or other document in the custody of a public officer. 4. When the original has been recorded, and a certified copy of the record is made evidence by this code or other statute. 5. When the original consists of numerous accounts or other documents, which can not be examined in court without great loss of time, and the evidence sought from them is only the general result of the whole. In the cases mentioned in subdivisions three and four, a copy of the original, or of the record, must be produced; in those mentioned in subdivisions one and two, either a copy or oral evidence of the contents. Sec. 1055. Proof of contents of lost public record or document; abstract of title may be admitted in evidence.—Lost public record or document. When, in any action, it is desired to prove the contents of any public record or document lost or destroyed by conflagration or other public calamity and after proof of such loss or destruction, there is offered in proof of such contents
(a)any abstract of title made and issued and certified as correct prior to such loss or destruction, and purporting to have been prepared and made in the ordinary course of business by any person, firm or corporation engaged in the business of preparing and making abstracts of title prior to such loss or destruction;1096 Abstract of title.(b) any abstract of title, or of any instrument affecting title, made, issued and certified as correct by any person, firm, or corporation engaged in the business of insuring titles or issuing abstracts of title, to real estate whether the same was made, issued, or certified before or after such loss or destruction and whether the same was made from the original records or from abstracts and notes, or either, taken from such records in the preparation and upkeeping of its, or his, plant in the ordinary course of its business, the same may, without further proof, be admitted in evidence for the purpose aforesaid. Proof of loss.No proof of the loss of the original document or instrument shall be required other than the fact that the same is not known to the *Proviso*.Notice to adverse party.party desiring to prove its contents to be in existence: *Provided*, *nevertheless*, That any party so desiring to use said evidence shall give reasonable notice in writing to all other parties to the action who have appeared therein, of his intention to use the same at the trial of said action, and shall give all such other parties a reasonable opportunity to inspect the same, and also the abstracts, memoranda, or notes from which it was compiled, and to take copies thereof. Sec. 1056. An agreement reduced to writing deemed the whole.—Written instrument incontrovertible by parole. When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be between the parties and their representatives, or successors in interest, no evidence of the terms Exceptions.of the agreement other than the contents of the writing, except in the following cases: 1. Where a mistake or imperfection of the writing is put in issue by the pleadings; 2. Where the validity of the agreement is the fact in dispute. Attendant circumstances, ambiguity, etc.But this section does not exclude other evidence of the circumstances under which the agreement was made or to which it relates, as defined in section 1060, or to explain an extrinsic ambiguity, or to establish illegality or fraud. The term agreement includes deeds and wills, as well as contracts between parties. Sec. 1057. Construction of language relates to place where used.—Construction of language. The language of a writing is to be interpreted according to the meaning it bears in the place of its execution, unless the parties have reference to a different place. Sec. 1058.— Construction of statutes and instruments, general rule.—Of statutes and instruments. In the construction of a statute or instrument, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all. Sec. 1059. The intention of the legislature or parties.—Intention of legislature or parties to govern. In the construction of a statute the intention of the legislature, and in the construction of the instrument the intention of the parties, is to be pursued, if possible; and when a general and a particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it. Sec. 1060. The circumstances to be considered.—Attendant circumstances. For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject of the instrument, and of the parties to it, may also be shown, so that the judge be placed in the position of those whose language he is to interpret. Sec. 1061. Terms to be construed in their general acceptation.—Terms to be construed generally. The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is nevertheless 1097admissible that they have a local, technical, or otherwise peculiarTechnical, etc., words. signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly. Sec. 1062. Written words control those printed in a blank form.—Written words to govern print. When an instrument consists partly of written words and partly of a printed form, and the two are inconsistent, the former controls the latter. Sec. 1063. Persons skilled may testify, to decipher characters.—Translators, etc. When the characters in which an instrument is written are difficult to be deciphered, or the language of the instrument is not understood by the court, the evidence of persons skilled in deciphering the characters, or who understand the language, is admissible to declare the characters or the meaning of the language. Sec. 1064. Of two constructions, which preferred.— When thePreference in construction. terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail against either party in which he supposed the other understood it, and when different constructions of a provision are otherwise equally proper, that is to be taken which is most favorable to the party in whose favor the provision was made. Sec. 1065. A written instrument construed as understood by parties.—As understood by parties. A written notice, as well as every other writing, is to be construed according to the ordinary acceptation of its terms. Thus a notice to the drawers or indorsers of a bill of exchange or promissory note, that it has been protested for want of acceptance or payment, must be held to import that the same has been duly presented for acceptance or payment and the same refused, and that the holder looks for payment to the person to whom the notice is given. Sec. 1066. Construction in favor of natural right preferred.—In favor of natural right. When a statute or instrument is equally susceptible of two interpretations, one in favor of natural right, and the other against it, the former is to be adopted. Sec. 1067. Material allegation only to be proved.— None butMaterial allegation, only, to be proved. a material allegation need be proved. Sec. 1068. Evidence confined to material allegation.—Evidence confined to. Evidence must correspond with the substance of the material allegations and be relevant to the question in dispute. Collateral questions must therefore be avoided. It is, however, within the discretion of the court to permit inquiry into collateral fact, when such fact is directly connected with the question in dispute, and is essential to its proper determination or when it affects the credibility of a witness. Sec. 1069. Affirmative only to be proved.— Each party must proveAffirmative allegations. his own affirmative allegations. Evidence need not be given in support of a negative allegation, except when such negative allegation is an essential part of the statement of the right or title on which the cause of action or defense is founded, nor even in such case when the allegation is a denial of the existence of a document, the custody of which belongs to the opposite party. Sec. 1070. Facts which may be proved on trial.— In conformityFacts provable on trial. with the preceding provisions, evidence may be given upon a trial of the following facts: 1. The precise fact in dispute;Fact in dispute. 2. The act, declaration, or omission of a party, as evidence againstAdmissions against interest. such party; 3. An act or declaration of another, in the presence and within theActs of another in presence, etc., of party. observation of a party, and his conduct in relation thereto;1098 4. Dying declarations, etc. The act or declaration, verbal or written, of a deceased person in respect to the relationship, birth, marriage, or death of any person related by blood or marriage to such deceased person; the act or declaration of a deceased person done or made against his interest in respect to his real property; and also in criminal actions, the act or declaration of a dying person, made under a sense of impending death, respecting the cause of his death; 5. Acts, etc., of partner, etc. After proof of a partnership or agency, the act or declaration of a partner or agent of the party, within the scope of the partnership or agency, and during its existence. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party; 6. Conspiracies. After proof of a conspiracy, the act or declaration of a conspirator against his co-conspirator, and relating to the conspiracy; 7. Acts, etc., forming part of transaction.*Ante*, p. 1095. The act, declaration, or omission forming part of a transaction as explained in section 1049; 8. Testimony of deceased, etc., persons. The testimony of a witness deceased, or out of the jurisdiction, or unable to testify, given in a former action between the same parties, relating to the same matter; 9. Expert testimony. The opinion of a witness respecting the identity or handwriting of a person, when he has knowledge of the person or handwriting; his opinion on a question of science, art, or trade, when he is skilled therein; 10. Opinion, as to sanity. The opinion of a subscribing witness to a writing, the validity of which is in dispute, respecting the mental sanity of the signer; and the opinion of an intimate acquaintance respecting the mental sanity of a person, the reason for the opinion being given; 11. Ancient documents, etc. Common reputation existing previous to the controversy, respecting facts of a public or general interest more than thirty years old, and in cases of pedigree and boundary; 12. Usage. Usage, to explain the true character of an act, contract, or instrument, where such true character is not otherwise plain; but usage is never admissible, except as an instrument of interpretation; 13. Monuments, inscriptions, family records, etc. Monuments and inscriptions in public places, as evidence of common reputation; and entries in family Bibles, or other family books or charts; engravings on rings, family portraits, and the like, as evidence of pedigree; 14. Parole, of writing, when admissible. The contents of a writing, when oral evidence thereof is admissible; 15. Indirect. Any other facts from which the facts in issue are presumed or are logically inferable; 16. Common reputation.*Ante*, p. 1094. Such facts as serve to show the credibility of a witness, as explained in section 1046. kinds and degrees of evidenceKinds and degrees. knowledge of the courtKnowledge of the court. Sec. 1071. Certain facts of general notoriety assumed to be true; specification of such facts.—Judicial notice. Courts take judicial notice of the following facts: 1. The true signification of all English words and phrases, and of all legal expressions; 2. Whatever is established by law; 3. Public and private official acts of the legislative, executive, and judicial departments of the United States; 4. The seals of all the courts of the Canal Zone and of the United States;1099 5. The accession to office and the official signatures and seals of office of the principal officers of government in the legislative, executive, and judicial departments of the United States; 6. The existence, title, national flag, and seal of every state or sovereign recognized by the executive power of the United States; 7. The seals of courts of admiralty and maritime jurisdiction, and of notaries public; 8. The laws of nature, the measure of time, and the geographical divisions and political history of the world. In all these cases the court may resort for its aid to appropriate books or documents of reference. witnessesWitnesses. Sec. 1072. Witnesses defined.— A witness is a person whoseDefined. declaration under oath is received as evidence for any purpose, whether such declaration be made on oral examination, or by deposition or affidavit. Sec. 1073. All persons capable of perception and communication may be witnesses.—Capacity. All persons, without exception, otherwise than is specified in the next two sections, who, having organs of sense, can perceive, and, perceiving, can make known their perceptions to others, may be witnesses. Therefore, neither parties nor other persons who have an interest in the event of an action or proceeding are excluded; nor those who have been convicted of crime; nor persons on account of their opinions on matters of religious belief; although, in every case the credibility of the witness*Ante*, p. 1094. may be drawn in question, as provided in section 1046. Sec. 1074. Persons who cannot testify.— The following personsPersons who can not testify. can not be witnesses: 1. Those who are of unsound mind at the time of their production for examination. 2. Children under ten years of age, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly. 3. Parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted, against an executor or administrator upon a claim, or demand against the estate of a deceased person, as to any matter or fact occurring before the death of such deceased person. Sec. 1075. Cases in which witnesses may not be examined.—Who may not be examined. There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person can not be examined as a witness in the following cases: 1. Husband and wife.— A husband can not be examined for orHusband and wife. against his wife without her consent; nor a wife for or against her husband, without his consent; nor can either, during the marriage or afterward, be, without the consent of the other, examined as to any communication made by one to the other during the marriage; but this exception does not apply to civil action or proceeding byExceptions. one against the other, nor to a criminal action or proceeding for a crime committed by one against the other; or in an action brought by husband or wife against another person for the alienation of the affections of either husband or wife or in an action for damages against another person for adultery committed by either husband or wife. 2. Attorney and client.— An attorney can not, without the consentAttorney and client. of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of profes-1100sional employment; nor can an attorney’s secretary, stenographer, or clerk be examined, without the consent of his employer, concerning any fact the knowledge of which has been acquired in such capacity. 3. Confessor and confessant. Confess or and confessant.— A clergyman or priest can not, without the consent of the person making the confession, be examined as to any confession made to him in his professional character in the course of discipline enjoined by the church to which he belongs. 4. Physician and patient. Physician and patient.— A licensed physician or surgeon can not, without the consent of his patient, be examined in a civil action as to any information acquired in attending the patient, which was *Provisos*.Concerning injury causing death of patient, upon consent of representative of estate.necessary to enable him to prescribe or act for the patient: *Provided*, *however*, That after the death of the patient, the executor of his will, or the administrator of his estate, or the surviving spouse of the deceased, or, if there be no surviving spouse, the children, of the deceased personally, or, if minors, by their guardian, may give such consent, in any action or proceeding brought to recover When injured party brings action thereon.damages on account of the death of the patient : *Provided further*, That where any person brings an action to recover damages for personal injuries, such action shall be deemed to constitute a consent by the person bringing such action that any physician who has prescribed for or treated said person and whose testimony is material Action by representative for death.in said action shall testify: *And provided further*, That the bringing of an action to recover for the death of a patient, by the executor of his will, or by the administrator of his estate, or by the surviving spouse of the deceased, or if there be no surviving spouse, by the children personally, or, if minors, by their guardian, shall constitute a consent by such executor, administrator, surviving spouse, or children or guardian, to the testimony of any physician who attended said deceased. 5. Public officer. Public officer.— A public officer can not be examined as to communications made to him in official confidence, when the public interest would suffer by the disclosure. Sec. 1076. Judge or a juror may be a witness.—Judge and jurors eligible as. The judge himself, or any juror, may be called as a witness by either party; but in such case it is in the discretion of the court or judge to order the trial to be postponed or suspended, and to take place before another judge or jury. Sec. 1077. When an interpreter to be sworn.—Interpreter. When a witness does not understand and speak the English language, an interpreter must be sworn to interpret for him. Any person, a resident of the proper division or subdivision, may be summoned by any court or judge to appear before such court or judge to act as interpreter in any action or proceeding. The summons must be served and returned in like manner as a subpoena. Any person so summoned who fails to attend at the time and place named in the summons, is guilty of a contempt. writings in generalWritings. Sec. 1078. Writings, public and private.—Public and private. Writings are of two kinds: 1. Public; and, 2. Private. Sec. 1079. Public writings defined.—“Public” defined. Public writings are: 1. The written acts or records of the acts of the sovereign authority, of official bodies and tribunals, and of public officers, legislative, 1101judicial, and executive, whether of the Canal Zone, of the United States, of a State of the United States, or of a foreign country; 2. Public records, kept in the Canal Zone, of private writings. Sec. 1080. All others private.— All other writings are private.“Private.” public writingsPublic writings. Sec. 1082. Public officers bound to give copies.— Every publicOfficers bound to give copies. officer having the custody of a public writing, which a citizen has a right to inspect, is bound to give him, on demand, a certified copy of it, on payment of the legal fees therefor, and such copy is admissible as evidence in like cases and with like effect as the original writing. Sec. 1083. Four kinds of public writings.— Public writings areDivisions. divided into four classes: 1. Laws; 2. Judicial records; 3. Other official documents; 4. Public records, kept in the Canal Zone, of private writings.Definitions. Sec. 1084. Written laws defined.— A written law is that which“Written laws.” is promulgated in writing, and of which a record is in existence. Sec. 1085. Public and private statutes defined.— Statutes are“Public and private statutes.” public or private. A private statute is one which concerns only certain designated individuals, and affects only their private rights. All other statutes are public, in which are included statutes creating or affecting corporations. Sec. 1086. Unwritten law defined.— Unwritten law is the law“Unwritten law.” not promulgated and recorded, as mentioned in section 1084, but which is, nevertheless, observed and administered in the courts of the United States. It has no certain repository, but is collected from the reports of the decisions of the courts, and the treatises of learned men. Sec. 1087. Books containing laws presumed to be correct.—Books containing laws presumed correct. Books printed or published under the authority of a state or foreign country, and purporting to contain the statutes, code, or other written law of such state or country, or proved to be commonly admitted in the tribunals of such state or country as evidence of the written law thereof, are admissible in the Canal Zone as evidence of such law. Sec. 1088. Evidence of foreign law.— A copy of the written lawForeign laws, copies. or other public writing of any state or country, attested by the certificate of the officer having charge of the original, under the public seal of the state or country, is admissible as evidence of such law or writing. Sec. 1089. Other evidence of laws of states.— The oral testimonyOral testimony by experts. of witnesses skilled therein is admissible as evidence of the unwritten law of a state or foreign country, as are also printed and published books of reports of decisions of the courts of such state or country, or proved to be commonly admitted in such courts. Sec. 1090. Recitals in statutes, how far evidence.— The recitalsRecitals in statutes.. in a public statute are conclusive evidence of the facts recited for the purpose of carrying it into effect, but no further. The recitals in a private statute are conclusive evidence between parties who claim under its provisions, but no further. Sec. 1091. Judicial record defined.— A judicial record is the“Judicial record” defined. record or official entry of the proceedings in a court of justice, or of the official act of a judicial officer, in an action or special proceeding. Sec. 1092. Record, how authenticated as evidence.— A judicialAuthentication of. record of the Canal Zone, or of the United States, may be proved 1102by the production of the original, or by a copy thereof, certified by the clerk or other person having a legal custody thereof. That of a state may be proved by the attestation of the clerk and the seal of the court annexed, if there be a clerk and seal, together with a certificate of the chief judge or presiding magistrate, that the attestation is in due form. Sec. 1093. Record of a foreign country, how authenticated.—Authentication of foreign judicial record. A judicial record of a foreign country may be proved by the attestation of the clerk, with the seal of the court annexed, if there be a clerk and a seal, or of the legal keeper of the record, with the seal of his office annexed, if there be a seal, together with a certificate of the chief judge, or presiding magistrate, that the person making the attestation is the clerk of the court or the legal keeper of the record, and, in either case, that the signature of such person is genuine, and that the attestation is in due form. The signature of the chief judge or presiding magistrate must be authenticated by the certificate of the minister or ambassador, or a consul, vice consul, or consular agent of the United States in such foreign country. Sec. 1094. Copy of a foreign record, when evidence.—Unauthenticated copy. A copy of the judicial record of a foreign country is also admissible in evidence, upon proof: 1. That the copy offered has been compared by the witness with the original, and is an exact transcript of the whole of it; 2. That such original was in the custody of the clerk of the court or other legal keeper of the same; and 3. That the copy is duly attested by a seal which is proved to be the seal of the court where the record remains, if it be the record of a court; or if there be no such seal, or if it be not a record of a court, by the signature of the legal keeper of the original. Sec. 1095. Effect of a judgment upon rights in various cases.—Effect of judgment upon rights. The effect of a judgment or final order in an action or special proceeding before a court or judge of the Canal Zone, is as follows: 1. In case of a judgment or order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a decedent, or in respect to the personal, political, or legal condition or relation of a particular person, the judgment or order is conclusive upon the title to the thing, the will, or administration, or the condition or relation of the person. 2. In other cases, the judgment or order is, in respect to the matter directly adjudged, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing under the same title and in the same capacity, provided they have notice, actual or constructive, of the pendency of the action or proceeding. Sec. 1096. Effect of other judicial orders, when conclusive.—Other judicial orders. Other judicial orders of a court or judge of the Canal Zone, create a disputable presumption, according to the matter directly determined, between the same parties and their representatives and successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing under the same title and in the same capacity. Sec. 1097. Where parties are to be deemed the same.—Where parties deemed the same. The parties are deemed to be the same when those between whom the evidence is offered were on opposite sides in the former case, and a judgment or other determination could in that case have been made between them alone, though other parties were joined with both or either.1103 Sec. 1098. What deemed adjudged in a judgment.— That only isWhat deemed adjudged in judgment. deemed to have been adjudged in a former judgment which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. Sec. 1099. Where sureties bound, principal is also.— Whenever,Principal bound when sureties are. pursuant to the last four sections, a party is bound by a record, and such party stands in the relation of a surety for another, the latter is also bound from the time that he has notice of the action or proceeding, and an opportunity at the surety’s request to join in the defense. Sec. 1100. Record of state, its effect.— The effect of a judicialEffect of judicial record of State. record of a state is the same in the Canal Zone as in the state where it was made, except that it can only be enforced here by an action or special proceeding, and except, also, that the authority of a guardian or committee, or of an executor or administrator, does not extend beyond the jurisdiction of the government under which he was invested with his authority. Sec. 1101. Record of a court of admiralty.— The effect of theCourt of admiralty. judicial record of a court of admiralty of a foreign country is the same as if it were the record of a court of admiralty of the United States. Sec. 1102. Effect of a foreign judgment.— A final judgment ofForeign judgment. any other tribunal of a foreign country having jurisdiction, according to the laws of such country, to pronounce the judgment, shall have the same effect as in the country where rendered, and also the same effect as final judgments rendered in the Canal Zone. Sec. 1103. Manner of impeaching are cord.— Any judicial recordImpeachment of record. may be impeached by evidence of a want of jurisdiction in the court or judicial officer, of collusion between the parties, or of fraud in the party offering the record, in respect to the proceedings. Sec. 1104. The jurisdiction necessary in a judgment.— TheJurisdiction necessary to sustain a judgment. jurisdiction sufficient to sustain a record is jurisdiction over the cause, over the parties, and over the thing, when a specific thing is the subject of the judgment. Sec. 1105. Manner of proving other official documents.— OtherProof of other official documents. official documents may be proved, as follows: 1. Acts of the executive of the Canal Zone, by the records of hisActs of executives of Canal Zone and United States. office; and of the United States, by the records of the state department of the United States, certified by the heads of those departments, respectively. They may also be proved by public documents printed by order of the executive or Congress, or either house thereof. 2. The proceedings of Congress, by the journals of that body,Proceedings of Congress. or either house thereof, or by published statutes or resolutions, or by copies certified by the clerk or printed by their order. 3. The acts of the executive, or the proceedings of the legislatureExecutive and legislature of States. of a state, in the same manner. 4. The acts of the executive, or the proceedings of the legislatureOf foreign country. of a foreign country, by journals published by their authority, or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign, or by a recognition thereof in some public act of the executive of the United States. 5. Documents of any other class in the Canal Zone, by the original,Other documents, Canal Zone. or by a copy, certified by the legal keeper thereof. 6. Documents of any other class in a State, by the original, or byStates. a copy, certified by the legal keeper thereof, together with the certificate of the secretary of state, judge of the supreme, superior, or county court, or mayor of a city of such State, that the copy is duly certified by the officer having the legal custody of the original.1104 7. Foreign country. Documents of any other class in a foreign country, by the original, or by a copy, certified by the legal keeper thereof, with a certificate, under seal, of the country or sovereign, that the document is a valid and subsisting document of such country, and the copy is duly certified by the officer having the legal custody of the original. 8. Departments, United States Government. Documents in the departments of the United States Government, by the certificates of the legal custodian thereof. Sec. 1106. Public record of private writing evidence.—Public record of private writing. A public record of a private writing may be proved by the original record, or by a copy thereof, certified by the legal keeper of the record. Sec. 1107. Entries in official books prima facie evidence.—Entries in official books, prima facie evidence. Entries in public or other official books or records made in the performance of his duty by a public officer of the Canal Zone, or by another person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts stated therein. Sec. 1108. Justice’s judgment in states, how proved.—Judgments of State justices. A transcript from the record or docket of a justice of the peace of a State, of a judgment rendered by him, of the proceedings in the action before the judgment, of the execution and return, if any, subscribed by the justice and verified in the manner prescribed in the next section is admissible evidence of the facts stated therein. Sec. 1109. Same.—Additional certifications. There must be attached to the transcript a certificate of the justice that the transcript is in all respects correct, and that he had jurisdiction of the action, and also a further certificate of the clerk or prothonotary of the county in which the justice resided at the time of rendering the judgment, under the seal of the county, or the seal of the court of common pleas or county court thereof, certifying that the person subscribing the transcript was, at the date of the judgment, a justice of the peace in the county, and that the signature is genuine. Such judgment, proceedings, and jurisdiction may also be proved by the justice himself, on the production of his docket, or by a copy of the judgment, and his oral examination as a witness. Sec. 1110. Contents of other official certificates.—Other official certificates. Whenever a copy of a writing is certified for the purpose of evidence, the certificate must state in substance that the copy is a correct copy of the original, or of a specified part thereof, as the case may be. The certificate must be under the official seal of the certifying officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. Sec. 1111. Provisions in relation to public writings of states apply to those of United States or Territories.—Provisions with respect to States to apply to United States and Territories. The provisions of the preceding sections of this subchapter applicable to the public writings of a state, are equally applicable to the public writings of the United States or a Territory of the United States. Sec. 1112. Entries made by officers or boards prima facie evidence.—Entries of officers of boards prima facie evidence. An entry made by an officer, or board of officers, or under the direction and in the presence of either, in the course of official duty, is prima facie evidence of the facts stated in such entry. Sec. 1113. Deed evidence of transfer.—Deed as evidence of transfer. A deed of conveyance of real property, purporting to have been executed by a proper officer in pursuance of legal process of the district court, or the record of such deed, or a certified copy of such record is prima facie evidence that the property or interest therein described was. thereby conveyed to the grantee named in such deed.1105 private writingsPrivate writings. Sec. 1114. Private writings classified.— Private writings areClassified. either: 1. Sealed; or, 2. Unsealed. Sec. 1115. Seal defined.— A seal is a particular sign made to“Seal” defined. attest, in the most formal manner, the execution of an instrument. Sec. 1116. Seal, what is, and how made.— A public seal in theHow made. Canal Zone is a stamp or impression made by a public officer with an instrument provided by law, to attest the execution of an official or public document, upon the paper, or upon any substance attached to the paper, which is capable of receiving a visible impression. A private seal may be made in the same manner by any instrument, or it may be made by the scroll of a pen, or by writing the word “seal ” against the signature of the writer. A scroll or other sign, made in a state or foreign country, and there recognized as a seal, must be so regarded in the Canal Zone. Sec. 1117. Effect of a seal.— There shall be no difference hereafter,Effect. in the Canal Zone, between sealed and unsealed writings. A writing under seal may therefore be changed, or altogether discharged by a writing not under seal. Sec. 1118. Execution of an instrument defined.— The execution“Execution of instrument” defined. of an instrument is the subscribing and delivering it, with or without affixing a seal. Sec. 1119. Compromise of a debt without seal good.— An agreement,Compromise of debt without seal good. in writing, without a seal, for the compromise or settlement of a debt, is as obligatory as if a seal were affixed. Sec. 1120. Subscribing witness defined.— A subscribing witness“Subscribing witness.” is one who sees a writing executed or hears it acknowledged, and at the request of the party thereupon signs his name as a witness. Sec. 1121. Books, maps, and so forth, how far evidence.— HistoricalEvidentiary value of books, maps, etc. works, books of science or art, and published maps or charts, when made by persons indifferent between the parties, are prima facie evidence of facts of general notoriety and interest. Sec. 1122. Original writing to be produced or accounted for.—Production of original writing.Exceptions.*Ante*, pp. 1095, 1104. The original writing must be produced and proved, except as provided in sections 1054 and 1106. If it has been lost, proof of the loss must first be made before evidence can be given of its contents. Upon such proof being made, together with proof of the due execution of the writing, its contents may be proved by a copy, or by recital of its contents in some authentic document, or by the recollection of a witness, as provided in section 1054. Sec. 1123. When in possession of adverse party, notice to be given.—Writing in hands of adverse party, notice to produce. If the writing be in the custody of the adverse party, he must first have reasonable notice to produce it. If he then fail to do so, the contents of the writing may be proved as in case of its loss. But the notice to produce it is not necessary where the writing is itself a notice, or where it has been wrongfully obtained or withheld by the adverse party. Sec. 1124. Writings called for and inspected may be withheld.—May be withheld. Though a writing called for by one party is produced by the other, and is thereupon inspected by the party calling for it, he is not obliged to produce it as evidence in the case. Sec. 1125. Writing, how proved.— Any writing may be provedProof of writing. either: 1. By anyone who saw the writing executed; or, 2. By evidence of the genuineness of the handwriting of the maker; or,1106 3. By a subscribing witness. Sec. 1126. Other witnesses may also testify.—Further proof of. If the subscribing witness denies or does not recollect the execution of the writing, its execution may still be proved by other evidence. Sec. 1127. When evidence of execution not necessary.—When evidence of execution not necessary. Where, however, evidence is given that the party against whom the writing is offered has at any time admitted its execution no other evidence of the execution need be given, when the instrument is one mentioned in section 1130, or one produced from the custody of the adverse party, and has been acted upon by him as genuine. Sec. 1128. Evidence of handwriting.—Proof of handwriting, by party familiar. The handwriting of a person may proved 11 So in original. by any one who believes it to be his, and who has seen him write, or has seen writings purporting to be his, upon which he has acted or been charged, and who has thus acquired a knowledge of his handwriting. Sec. 1129. Evidence of handwriting by comparison.—By comparison. Evidence respecting the handwriting may also be given by a comparison, made by the witness or the jury, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. Sec. 1130. Same; when writing more than thirty years old.—Ancient writings. Where a writing is more than thirty years old, the comparisons may be made with writings purporting to be genuine, and generally respected and acted upon as such, by persons having an interest in knowing the fact. Sec. 1131. Entries of decedents; evidence in specified cases.—Entries of decedents. The entries and other writings of a decedent, made at or near the time of the transaction, and in a position to know the facts stated therein, may be read as prima facie evidence of the facts stated therein, in the following cases: 1. Against interest. When the entry was made against the interest of the person making it. 2. Professional capacity. When it was made in a professional capacity and in the ordinary course of professional conduct. 3. In performance of legal duty. When it was made in the performance of a duty specially enjoined by law. Sec. 1132. Copies of entries also allowed.—Copies of entries. When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are equally regarded as originals. Sec. 1133. Private writings, how proved.—Proof of private writings. Every private writing, except last wills and testaments, may be acknowledged or proved *Post*, p. 1164.and certified in the manner provided in chapter 22 of the Civil Code, and the certificate of such acknowledgement or proof is prima facie evidence of the execution of the writing, in the same manner as if it were a conveyance of real property. Sec. 1134. Removal of public records.—Removal of public records. The record of a conveyance of real property, or any other record, a transcript of which is admissible in evidence, must not be removed from the office where it is kept, except upon the order of a court, in cases where the inspection of the record is shown to be essential to the just determination of the cause or proceeding pending, or where the court is held in the same building with such office. Sec. 1135. Instrument conveying or affecting real property may be read in evidence.—Instruments conveying real property admissible. Every instrument conveying or affecting real property, acknowledged or proved and certified, as provided in the Civil Code, may together with the certificate of acknowledg-1107ment or proof, be read in evidence in an action or proceeding, without further proof; also, the original record of such conveyance or instrument thus acknowledged or proved, or a certified copy of the record of such conveyance or instrument thus acknowledged or proved, may be read in evidence, with the like effect as the original instrument, without further proof. material objects presented to the senses other than writingsMaterial objects other than writing. Sec. 1136. Material objects.— Whenever an object, cognizable byAdmissible. the senses, has such a relation to the fact in dispute as to afford reasonable grounds of belief respecting it, or to make an item in the sum of the evidence, such object may be exhibited to the jury, or its existence, situation, and character may be proved by witnesses. The admission of such evidence must be regulated by the sound discretion of the court. indirect evidence; inferences and presumptionsIndirect evidence; inferences and presumptions. Sec. 1137. Indirect evidence classified.— Indirect evidence is ofIndirect evidence classified. two kinds: 1. Inferences; and, 2. Presumptions. Sec. 1138. Inference defined.— An inference is a deduction which the reason of the jury makes from the facts proved, without an express direction of law to that effect. Sec. 1139. Presumption defined.— A presumption is a deduction which the law expressly directs to be made from particular facts Sec. 1140. When an inference arises.— An inference must be founded: 1. On a fact legally proved; and, 2. On such a deduction from that fact as is warranted by a consideration of the usual propensities or passions of men, the particular propensities or passions of the person whose act is in question, the course of business, or the course of nature. Sec. 1141. Presumptions may be controverted, when.— A presumptionPresumption may be controverted, when. (unless declared by law to be conclusive) may be controverted by other evidence, direct or indirect; but unless so controverted the jury are bound to find according to the presumption. Sec. 1142. Specification of conclusive presumptions.— The followingConclusive presumptions. presumptions, and no others, are deemed conclusive: 1. A malicious and guilty intent, from the deliberate commission of an unlawful act, for the purpose of injuring another; 2. The truth of the facts recited, from the recital in a written instrument between the parties thereto, or their successors in interest by a subsequent title; but this rule does not apply to the recital of a consideration; 3. Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he can not, in any litigation arising out of such declaration, act, or omission, be permitted to falsify it; 4. A tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation; 5. The issue of a wife cohabiting with her husband, who is not impotent, is indisputably presumed to be legitimate; 6. The judgment or order of a court, when declared by this code to be conclusive; but such judgment or order must be alleged in the pleadings if there be an opportunity to do so; if there be no such opportunity, the judgment or order may be used as evidence;1108 7. Any other presumption which, by statute, is expressly made conclusive. Sec. 1143. All other presumptions may be controverted.—Controvertible presumptions. All other presumptions are satisfactory, if uncontradicted. They are denominated disputable presumptions, and may be controverted by other evidence. The following are of that kind: 1. That a person is innocent of crime or wrong; 2. That an unlawful act was done with an unlawful intent; 3. That a person intends the ordinary consequence of his voluntary act; 4. That a person takes ordinary care of his own concerns; 5. That evidence willfully suppressed would be adverse if produced; 6. That higher evidence would be adverse from inferior being produced; 7. That money paid by one to another was due to the latter; 8. That a thing delivered by one to another belonged to the latter; 9. That an obligation delivered up to the debtor has been paid; 10. That former rent or installments have been paid when a receipt for latter is produced; 11. That things which a person possesses are owned by him; 12. That a person is the owner of property from exercising acts of ownership over it, or from common reputation of his ownership; 13. That a person in possession of an order on himself for the payment of money, or the delivery of a thing, has paid the money or delivered the thing accordingly; 14. That a person acting in a public office was regularly appointed to it; 15. That official duty has been regularly performed; 16. That a court or judge, acting as such, whether in the Canal Zone or any state or country, was acting in the lawful exercise of his jurisdiction; 17. That a judicial record, when not conclusive, does still correctly determine or set forth the rights of the parties; 18. That all matters within an issue were laid before the jury and passed upon by them; 19. That private transactions have been fair and regular; 20. That the ordinary course of business has been followed; 21. That a promissory note or bill of exchange was given or indorsed for a sufficient consideration; 22. That an indorsement of a negotiable promissory note or bill of exchange was made at the time and place of making the note or bill; 23. That a writing is truly dated; 24. That a letter duly directed and mailed was received in the regular course of the mail; 25. Identity of person from identity of name; 26. That a person not heard from in seven years is dead; 27. That acquiescence followed from a belief that the thing acquiesced in was conformable to the right or fact; 28. That things have happened according to the ordinary course of nature and ordinary habits of life; 29. That persons acting as copartners have entered into a contract of copartnership; 30. That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage; 31. That a child born in lawful wedlock is legitimate;1109 32. That a thing once proved to exist continues as long as isControvertible presumptions—Contd. usual with things of that nature; 33. That the law has been obeyed; 34. That a document or writing more than thirty years old is genuine, when the same has been since generally acted upon as genuine, by persons having an interest in the question, and its custody has been satisfactorily explained; 35. That a printed and published book, purporting to be printed or published by public authority, was so printed or published; 36. That a printed and published book, purporting to contain reports of cases adjudged in the tribunals of the state or country where the book is published, contains correct reports of such cases; 37. That a trustee or other person, whose duty it was to convey real property to a particular person, has actually conveyed to him when such presumption is necessary to perfect the title of such person or his successor in interest; 38. That there was a good and sufficient consideration for a written contract; 39. When two persons perish in the same calamity, such as a wreck, a battle, or a conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, survivorship is presumed from the probabilities resulting from the strength, age, and sex, according to the following rules: First. If both of those who have perished were under the age of fifteen years, the older is presumed to have survived; Second. If both were above the age of sixty, the younger is presumed to have survived; Third. If one be under fifteen and the other above sixty, the former is presumed to have survived; Fourth. If both be over fifteen and under sixty, and the sexes be different, the male is presumed to have survived; if the sexes be the same, then the older; Fifth. If one be under fifteen, or over sixty, and the other between those ages, the latter is presumed to have survived. indispensable evidenceIndispensable evidence. Sec. 1144. Indispensable evidence, what.— The law makes certainWhat is. evidence necessary to the validity of particular acts, or the proof of particular facts. Sec. 1145. To prove perjury and treason, more than one witness required.—For perjury and treason. Per jury and treason must be proved by testimony of more than one witness. Treason by the testimony of two witnesses to the same overt act; and perjury by the testimony of two witnesses, or one witness and corroborating circumstances. Sec. 1146. Will to be in writing.— A last will and testament,For will. except a nuncupative will, is invalid, unless it be in writing and executed with such formalities as are required by law. When, therefore, such a will is to be shown, the instrument itself must be produced, or secondary evidence of its contents be given. Sec. 1147. Will, how revoked.— A written will can not beFor revocation of will.*Post*, p. 1167. revoked or altered otherwise than as provided in the Civil Code. Sec. 1148. Transfer of real property to be in writing.— NoTransfer of real property. estate or interest in real property, other than for leases for a term not exceeding one year, nor any trust or power over or concerning it, or in any manner relating thereto, can be created, granted, assigned, surrendered, or declared, otherwise than by operation of law, or a conveyance or other instrument in writing, subscribed by 1110the party creating, granting, assigning, surrendering, or declaring the same, or by his lawful agent thereunto authorized by writing. Sec. 1149. Last section not to extend to certain cases.—Not to extend to testamentary disposition or trusts. The preceding section must not be construed to affect the power of a testator in the disposition of his real property by a last will and testament, nor to prevent any trust from arising or being extinguished by implication or operation of law, nor to abridge the power of any court to compel the specific performance of an agreement, in case of part performance thereof. Sec. 1150. Agreement not in writing, when invalid.—Agreements not in writing. In the following cases the agreement is invalid, unless the same or some note or memorandum thereof be in writing, and subscribed by the party charged, or by his agent. Evidence, therefore, of the agreement, can not be received without the writing or secondary evidence of its contents: 1. An agreement that by its terms is not to be performed within a year from the making thereof; 2. A special promise to answer for the debt, default, or miscarriage of another, except in the cases provided for in section 1265 of the Civil Code; 3. An agreement made upon consideration of marriage other than a mutual promise to marry; 4. A contract to sell or a sale of any goods or choses in action of the value of $50 or upwards, unless the buyer accepts part of the goods or choses in action so contracted to be sold or sold, and actually receives the same, or gives something in earnest to bind the contract, or in part payment; 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. Sec. 1151. Representation of credit by writing.—Representation of credit. No evidence is admissible to charge a person upon a representation as to the credit of a third person, unless such representation, or some memorandum thereof, be in writing, and either subscribed by or in the handwriting of the party to be charged. conclusive or unanswerable evidenceConclusive evidence. Sec. 1152. Conclusive or unanswerable evidence.—When declared so herein. No evidence is by law made conclusive or unanswerable, unless so declared by this code. production of evidenceProduction of evidence. by whom to be producedBy whom. Sec. 1153. Evidence to be produced by whom.—Party holding affirmative of issue. The party holding the affirmative of the issue must produce the evidence to prove it; therefore, the burden of proof lies on the party who would be defeated if no evidence were given on either side. Sec. 1154. Writing altered, who to explain.—Alteration in writing. The party producing a writing as genuine which has been altered, or appears to have been altered, after its execution, in a part material to the question in dispute, must account for the appearance or alteration. He 1111may show that the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or otherwise properly or innocently made, or that the alteration did not change the meaning or language of the instrument. If he do that, he may give the writing in evidence, but not otherwise. means of productionMeans of production. Sec. 1155. Subpoena for witness defined.— The process by whichSubpoena. the attendance of a witness is required is a subpoena. It is a writ or order directed to a person and requiring his attendance at a particular time and place to testify as a witness. It may also requireSubpoena duces tecum. him to bring with him any books, documents, or other things under his control which he is bound by law to produce in evidence. Sec. 1156. Subpoena, how issued.— A subpoena is issued as follows:Purpose. 1. To require attendance before a court, or at the trial of anFor attendance before a court. issue therein, or upon the taking of a deposition in an action or proceeding pending therein, it is issued by the clerk of the court in which the action or proceeding is pending, under the seal of the court, or if there is no clerk or seal then by the judge or magistrate of such court; 2. To require attendance before a commissioner appointed to takeBefore commissioner. testimony by a court of a foreign country, or of the United States, or of any State in the United States, before any officer or officers empowered by the laws of the United States to take testimony, it may be issued by the clerk of the district court in the division in which the witness is to be examined, under the seal of such court; 3. To require attendance out of court, in cases not provided forBefore judge, etc., out of court. in subdivision one, before a judge, magistrate, or other officer authorized to administer oaths or take testimony in any matter under the laws of the Canal Zone, it is issued by the judge, magistrate, or other officer before whom the attendance is required. If the subpoena is issued to require attendance before a court, orIssue of. at the trial of an issue therein, it is issued by the clerk, as of course, upon the application of the party desiring it. If it is issued to require attendance before a commissioner or other officer upon the taking of a deposition, it must be issued by the clerk of the district court in the division wherein the attendance is required upon the order of such court or of the judge thereof, which order may be made ex parte. Sec. 1157. Subpoena, how served.— The service of a subpoena isService. made by showing the original and delivering a copy, or a ticket containing its substance, to the witness personally, giving or offering to him at the same time, if demanded by him, the fees to which he is entitled for travel to the place designated, and one day’s attendance there. The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. Such service may be made by any person. Sec. 1158. How, if witness be concealed.— If a witness is concealedWhen witness concealed. in a building or vessel, so as to prevent the service of a subpcena upon him, any court, judge, or magistrate or any officer issuing the subpoena may, upon proof by affidavit of the concealment, and of the materiality of the witness, make an order that the marshal or constable serve the subpcena; and the marshal or constable must serve it accordingly, and for that purpose may break into the building or vessel where the witness is concealed. Sec. 1159. Person present compelled to testify.— A person presentPersons present compelled to testify. in court, or before a judicial officer, may be required to testify 1112in the same manner as if he were in attendance upon a subpoena issued by such court or officer. Sec. 1160. Disobedience to subpoena, how punished.—Disobedience to subpoena, punishable as a contempt. Disobedience to a subpoena, or a refusal to be sworn, or to answer as a witness, or to subscribe an affidavit or deposition when required, may be When before officer or commissioner out of court.punished as a contempt by the court issuing the subpoena. When the subpoena, in any such case, requires the attendance of the witness before an officer or commissioner out of court, it is the duty of such officer or commissioner to report any such disobedience or refusal to the court issuing the subpoena; and the witness must not be punished for any refusal to answer a question or to subscribe an affidavit or deposition, unless, after a hearing upon notice, the court orders him to so answer or subscribe and then only for disobedience to such order. Any judge, magistrate, or other officer mentioned in subdivision *Ante*, p. 1111.three of section 1156, may report any such disobedience or refusal to the district court for the division in which such attendance was required; and such court thereupon has power, upon notice, to order the witness to perform the omitted act, and any refusal or neglect to comply with such order may be punished as a contempt of such court. Sec. 1161. Forfeiture therefor.—Forfeiture. A witness disobeying a subpoena also forfeits to the party aggrieved the sum of $100, and all damages which he may sustain by the failure of the witness to attend, which forfeiture and damages may be recovered in a civil action. Sec. 1162. Warrant may issue to bring witness, when.—Warrant to bring witness. In case of failure of a witness to attend, the court or officer issuing the subpoena, upon proof of the service thereof, and of the failure of the witness, may issue a warrant to the marshal or constable to arrest the witness and bring him before the court or officer where his attendance was required. Sec. 1163. Contents of warrant.—Contents. Every warrant of commitment, *Ante*, p. 1111.issued by a court or officer pursuant to sections 1155 to 1165, must specify therein, particularly, the cause of the commitment, and if it be for refusing to answer a question, such question must be stated in the warrant. And every warrant to arrest or commit a witness, pursuant to said sections, must be executed in the same manner as process issued by the district court. Sec. 1164. If witness be a prisoner, how brought.—When witness a prisoner. If the witness be a prisoner, confined in a jail or prison within the Canal Zone, an order for his examination in the prison upon deposition, or for his temporary removal and production before a court or officer, for the purpose of being orally examined, may be made as follows: 1. By the court itself in which the action or special proceeding is pending, unless it be a magistrate’s court. 2. By the judge of the district court if the action or proceeding is pending before a magistrate’s court, or before a judge or other person out of court. Sec. 1165. On whose motion.—Order for examination made on motion of party. Such order can only be made on the motion of a party, upon affidavit showing the nature of the action or proceeding, the testimony expected from the witness, and its materiality. mode of taking the testimony of witnessesTaking of testimony Sec. 1167. Testimony, in what mode taken.—Methods of taking. The testimony of witnesses is taken in three modes: 1. By affidavit;1113 2. By deposition; 3. By oral examination. Sec. 1168. Affidavit defined.—“Affidavit” defined. An affidavit is a written declaration under oath, made without notice to the adverse party. Sec. 1169. Deposition defined.— A deposition is a written declaration,“Deposition.” under oath, made upon notice to the adverse party, for the purpose of enabling him to attend and cross-examine. In all actions and proceedings where the default of the defendant has been duly entered, and in all proceedings to obtain letters of administration, or for the probate of wills and the issuance of letters testamentary thereon, where, after due and legal notice, those entitled to contest the application have failed to appear, the entry of said defaults, and the failure of said persons to appear after notice, shall be deemed to be a waiver of the right to any further notice of any application or proceeding to take testimony by deposition in such action or proceeding. Sec. 1170. Oral examination defined.—“Oral examination.” An oral examination is an examination in presence of the jury or tribunal which is to decide the fact or act upon it, the testimony being heard by the jury or tribunal from the lips of the witness. Sec. 1171. Deposition defined; how taken.—Taking of deposition. Depositions must be taken in the form of question and answer. The words of the witness must be written down, in the presence of the witness, by the officer taking the deposition, or by some disinterested person appointed by him. It may be taken down in shorthand, in which case it must be transcribed into longhand by the person who took it down. When completed, it must be carefully read to or by the witness and corrected by him in any particular, if desired, by writing or causing his corrections to be written in the body or margin of or at the bottom of the deposition, and must then be subscribed by the witness. The officer before whom the deposition is taken must write his initials near said corrections. If the parties agree in writing to any other mode, the mode so agreed upon must be followed. affidavitsAffidavits. Sec. 1172. Affidavits and depositions; for what purposes used.—Affidavits and depositions, purposes of. An affidavit may be used to verify a pleading or a paper in a special proceeding, to prove the service of a summons, notice, or other paper in an action or special proceeding, to obtain a provisional remedy, the examination of a witness, or a stay of proceedings, or upon a motion, and in any other case expressly permitted by some other provision of this code. Sec. 1173. Evidence of publication, what.— Evidence of theAs evidence of publication. publication of a document or notice required by law, or by an order of a court or judge, to be published in a newspaper, may be given by the affidavit of the printer of the newspaper, or his foreman or principal clerk, annexed to a copy of the document or notice, specifying the times when, and the paper in which, the publication was made. Sec. 1174. Filing evidence of publication.— If such affidavit beFiling of. made in an action or special proceeding pending in a court, it may be filed with the court or the clerk thereof. The original affidavit, or a copy thereof, certified by the judge of the court or clerk having it in custody, is prima facie evidence of the facts stated therein. Sec. 1175. Affidavits to be used in the canal zone, before whom may be taken.—Before whom taken. An affidavit to be used before any court, judge, or officer of the Canal Zone may be taken before any officer authorized to administer oaths.1114 Sec. 1176. Affidavit out of zone, how taken.—When outside of Canal Zone. An affidavit taken in a State of the United States, to be used in the Canal Zone, may be taken before a commissioner appointed by the Governor of the Panama Canal to take affidavits and depositions in such State, or before any notary public in a State, or before any judge or clerk of a court of record having a seal. Sec. 1177. If made in a foreign country, before whom taken.—In foreign country. An affidavit taken in a foreign country to be used in the Canal Zone, may be taken before an ambassador, minister, consul, vice-consul, or consular agent of the United States, or before any judge of a court of record having a seal in such foreign country. Sec. 1178. Certificate of the clerk, if taken before a judge of a court our of the zone.—Certificate of clerk, when taken outside Canal Zone. When an affidavit is taken before a judge of a court in a state, or in a foreign country, the genuineness of the signature of the judge, the existence of the court, and the fact that such judge is a member thereof, must be certified by the clerk of the court, under the seal thereof. depositions in generalDepositions. Sec. 1179. Depositions, when used.—When used.*Ante*, p. 1113. In all cases other than those mentioned in section 1172, where a written declaration under oath is used, it must be a deposition as prescribed by this code. Sec. 1180. Testimony of a witness out of the zone, when taken.—Taking of, outside Canal Zone. The testimony of a witness out of the Canal Zone may be taken by deposition in the following cases: 1st. In an action, at any time after the service of summons, or the appearance of the defendant. 2d. In a special proceeding, any time after a question of fact has arisen therein. 3d. Where default has been made by any or all of the defendants. Sec. 1181. Depositions in the zone, when taken.—Within Canal Zone. The testimony of a witness in the Canal Zone may be taken by deposition in an action at any time after the service of the summons or the appearance of the defendant, and in a special proceeding after a question of fact has arisen therein, in the following cases: 1. When the witness is a party to the action or proceeding or an officer or member of a corporation which is a party to the action or proceeding, or a person for whose immediate benefit the action or proceeding is prosecuted or defended; 2. When the witness resides out of the subdivision in which his testimony is to be used; 3. When the witness is about to leave the subdivision where the action is to be tried, and will probably continue absent when the testimony is required; 4. When the witness, otherwise liable to attend the trial, is nevertheless too infirm to attend; 5. When the testimony is required upon a motion, or in any other case where the oral examination of the witness is not required; 6. When the witness is the only one who can establish *Proviso*.Invalid, if witness can be produced.facts or a fact material to the issue: *Provided*, That the deposition of such witness shall not be used if his presence can be procured at the time of the trial of the cause. Sec. 1182. Deposition may be read in evidence by either party.—Reading of deposition in evidence.*Ante*, p. 1112.Exception.*Post*, p. 1116. A deposition taken and returned, as provided in sections 1167 to 1190, may, except as provided in section 1192, be read in evidence by either party at any stage of the action or proceeding in which it was taken, or in any other action or proceeding between the same parties or their privies or successors in interest upon the same sub-1115ject, and is then deemed the evidence of the party reading it; but the court may exclude the same, if it appears that the taking thereof was in any material respect unfair. Sec. 1183. Court may order deposition if adverse party in default.—Court may order, if adverse party in default. If an adverse party is in default for not appearing and answering within the time allowed by law or the court, or if, in a special proceeding, some or all of the parties interested have not appeared, the court may authorize a deposition to be taken without the service of any affidavit upon, or the giving of any notice to, the party so in default or not appearing, or may provide that notice be given to him in such mode as to the court may seem proper. manner of taking depositions out of the canal zoneDepositions outside Canal Zone. Sec. 1184. Deposition of witnesses out of zone, how taken.—Manner of taking. The deposition of a witness out of the Canal Zone may be taken upon a commission issued from the court under the seal of the court, upon an order of the court, or the judge or a magistrate thereof, on the application of either party, upon five days’ previous notice to the other. If the court is a magistrate’s court, the commission must have attached to it a certificate of the clerk of the district court for the division in which such magistrate’s court is held, under the seal of such district court, to the effect that the person issuing the same was an acting magistrate at the date of the commission. If issued toIn United States. any place within the United States, it may be directed to a person agreed upon by the parties, or if they do not agree, to any notary public, judge or justice of the peace or commissioner selected by the court or judge or justice issuing it. If issued to any country outIn foreign country. of the United States, it may be directed to a minister, ambassador, consul, vice-consul, or consular agent of the United States, or judge of a court of record in such country, or to any person agreed upon by the parties. Sec. 1185. Proper interrogatories may be prepared, or may be waived by the parties.—Interrogatories. The party moving for the commission must, unless it is waived by the other party, attach to the notice of the motion the interrogatories upon which he desires it to be taken. On the hearing of the motion, the other party must propose such cross-interrogatories as he may desire. If the parties do not agree as to the form of the interrogatories, the court must settle their form, but such agreement or settlement does not preclude either party, when the deposition is offered in evidence, from interposing any objection to any interrogatory except as to the form thereof. The settlement of interrogatories may be had at the time of the hearing of the motion, or at any other time which the court may appoint; but the moving party must, if he request it, be allowed two days within which to propose such redirect interrogatories as the cross-interrogatories proposed render proper. When agreed upon or settled, the interrogatories must be annexed to the commission; or, when the parties agree to that mode, or the court on the application of either party, after a hearing had upon two days’ notice to the opposite party, so directs, the examination must be without written interrogatories. Sec. 1186. Deposition of nonresident witness upon oral interrogatories.—Oral interrogatories. When a party shall desire to take the evidence of a nonresident witness, to be used in any cause pending in the Canal Zone, the party desiring the same (or where notice shall have been given that a commission to take the testimony of a nonresident witness will be applied for, the opposite party, upon giving the other three days’ notice in writing of his election so to do), may have a commission 1116*Ante*, p. 1115.directed in the same manner as provided in section 1184, to take such evidence, upon interrogatories to be propounded to the witness orally; upon the taking of which each party may appear before the commission, in person or by attorney, and interrogate the witness. Notice to adverse party.The party desiring such testimony shall give to the other the following notice of the time and place of taking the same, to wit: Ten days, and one day in addition thereto (Sundays included) for every three hundred miles’ travel from the place of holding the court to the place where such deposition is to be taken. Fees and mileage.Fees and mileage.—When a party to a suit shall give the opposite party notice to take a deposition upon oral interrogatories, and shall fail to take the same accordingly, unless such failure be on account of the nonattendance of the witness, not occasioned by the fault of the party giving the notice, or some other unavoidable cause, the party notified, if he shall attend himself or by attorney, agreeably to the notice, shall be entitled to $2 per day for each day he may attend under such notice, and to 6 cents per mile for every mile that he shall necessarily travel in going to and returning from the place designated to take the deposition, to be allowed by the court where the suit is pending and for which execution may issue. Sec. 1187. Authority of commissioner.—Authority of commissioner. The commission must authorize the commissioner to administer an oath to the witness and to take his deposition in answer to the interrogatories, or when the examination is to be without interrogatories, in respect to the question in dispute, and to certify the deposition to the court, in a sealed envelope, directed to the clerk, if there be one, and if not, to the judge thereof, and forward to him by mail or other usual channel of conveyance. Sec. 1188. Trial, when postponed for reason of nonreturn of commission.—Postponement of trial for nonreturn of commission. A trial or other proceeding must not be postponed by reason of a commission not returned, except upon evidence, satisfactory to the court, that the testimony of the witness is necessary, and that proper diligence has been used to obtain it. Sec. 1189. Deposition, by whom used.—Use by either party.*Ante*, p. 1115. The deposition mentioned in sections 1184 to 1190 may be used by either party on the trial or other proceeding, against any other party giving or receiving the notice, subject to all just exceptions. Sec. 1190. Notice dispensed with when witness resides out of zone.—Notice dispensed with. In all cases where service of summons has been had by publication as provided by law and after default has been duly entered, and it appears by affidavit that the residence of a party to the action is unknown and the witness resides out of the Canal Zone, then in *Ante*, p. 1115.such cases the notice provided for in sections 1184 to 1190 shall be dispensed with. manner of taking depositions in the canal zoneDepositions in Canal Zone. Sec. 1191. Depositions may be taken before a judge, and so forth, upon notice to the adverse party.—Before judge, magistrate, etc. Either party may have the deposition taken of a witness in the Canal Zone, in either of the *Ante*, p. 1114.Notice.cases mentioned in section 1181, before a judge, magistrate, or other officer authorized to administer oaths, on serving upon the adverse party previous notice of the time and place of examination, together with a copy of an affidavit, showing that the case is within that section. Such notice must be at least five days, unless, for a cause shown, a judge, by order, prescribe a shorter time. When a shorter time is prescribed, a copy of the order must be served with the notice.1117 Sec. 1192. Manner of taking depositions; may be used by either party on the trial.—Manner of taking. Either party may attend the examination and put such questions, direct and cross, as may be proper. The deposition, when completed, must be carefully read to or by the witness and corrected by him in any particular, if desired; it must then be subscribed by the witness, certified by the judge or officer taking the deposition, inclosed in an envelope or wrapper, sealed, and directed to the clerk of the court in which the action is pending, or to such person as the parties in writing may agree upon, and either delivered by the judge or officer to the clerk or such person, or transmitted through the mail or by some safe private opportunity; and thereupon such deposition may be used by either partyUse by either party on the trial. upon the trial or other proceeding against any party giving or receiving the notice, subject to all legal exceptions; but if the parties attend at the examination, no objection to the form of an interrogatory shall be made at the trial, unless the same was stated at the time of the examination. If the deposition be taken under subdivisions two, three, and four, of section 1181, proof must be made*Ante*, p. 1114. at the trial that the witness continues absent or infirm, or is dead. The deposition thus taken may be also read in case of the death of the witness. Sec. 1193. Deposition in the zone to be used in states.—For use in States. Any party to an action or special proceeding in a court or before a judge of a state, may obtain the testimony of a witness residing in the Canal Zone, to be used in such action or proceeding, in the cases mentioned in the next two sections. Sec. 1194. How to procure witness upon commission.— If a commissionProcuring witness upon commission. to take such testimony has been issued by the court before which such action or proceeding is pending, or by a judge thereof, on exhibiting the commission to the division of the district court in which the witness resides, with an affidavit showing the materiality of his testimony, such court may issue a subpoena to the witness,Subpoena. requiring him to appear and testify before the commissioner named in the commission, at a specified time and place within such division. Sec. 1195. Compelling the witnesses to appear and testify.—Compelling witness to appear and testify. Whenever any mandate, writ, or commission is issued out of any court of record in any State, Territory, District, or foreign jurisdiction, or whenever, upon notice or agreement, it is required to take the testimony of a witness or witnesses in the Canal Zone, witnesses may be compelled to appear and testify in the same manner and by the same process and proceeding as may be employed for the purpose of taking testimony in proceedings pending in the Canal Zone. Sec. 1196. How, if commission not issued.— If a commission hasProcedure when no commission has issued. not been issued, and it appears to the district judge, or to a magistrate, by affidavit satisfactory to him: 1. That the testimony of the witness is material to either party, and that he resides in the division or subdivision in which such judge or magistrate holds office; 2. That a commission to take the testimony of such witness has not been issued; 3. That, according to the law of the State where the action or special proceeding is pending, the deposition of a witness taken under such circumstances, and before such judge or magistrate, will be received in the action or proceeding; He must issue his subpoena requiring the witness to appear and testify before him at a specified time and place. Sec. 1197. Deposition, how taken.— Upon the appearance of theTaking of deposition. witness, the judge or magistrate must cause his testimony to be taken 1118in writing, and must certify and transmit the same to the court or judge before whom the action or proceeding is pending, in such manner as the law of that state requires. general rules of examinationRules of examination. Sec. 1198. Order of proof, how regulated.—Order of proof. The order of proof must be regulated by the sound discretion of the court. Ordinarily, the party beginning the case must exhaust his evidence before the other party begins. Sec. 1199. What witnesses may be excluded.—Exclusion of witnesses. If either party requires it, the judge may exclude from the court-room any witness of the adverse party not at the time under examination, so that he may not hear the testimony of other witnesses; but a party to the action or proceeding can not be so excluded; and if a corporation is a party thereto, it is entitled to the presence of one of its officers, to be designated by its attorney. Sec. 1200. Court may control mode of interrogation.—Control of interrogation of witnesses. The court must exercise a reasonable control over the mode of interrogation, so as to make it as rapid, as distinct, as little annoying to the witness, and as effective for the extraction of the truth, as may be; but subject to this rule, the parties may put such pertinent and legal questions as they see fit. The court, however, may stop the production of further evidence upon any particular point when the evidence upon it is already so full as to preclude reasonable doubt. Sec. 1201.— Direct examination and cross-examination defined.—“Direct examination” and “cross-examination” defined. The examination of a witness by the party producing him is denominated the direct examination; the examination of the same witness, upon the same matter, by the adverse party, the cross-examination. The direct examination must be completed before the cross-examination begins, unless the court otherwise direct. Sec. 1202. Leading question defined.—“Leading question.” A question which suggests to the witness the answer which the examining party desires, is denominated a leading or suggestive question. On a direct examination, leading questions are not allowed, except in the sound discretion of the court, under special circumstances, making it appear that the interests of justice require it. Sec. 1203. When witness may refresh memory from notes.—Refreshing memory. A witness is allowed to refresh his memory respecting a fact, by anything written by himself, or under his direction, at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory, and he knew that the same was correctly stated in the writing. But in such a case the writing must be produced, and may be seen by the adverse party, who may, if he choose, cross-examine the witness upon it, and may read it to the jury. So, also, a witness may testify from such a writing, though he retain no recollection of the particular facts, but such evidence must be received with caution. Sec. 1204. Cross-examination, as to what.—Cross-examination; limits of. The opposite party may cross-examine the witness as to any facts stated in his direct examination or connected therewith, and in so doing may put leading questions, but if he examine him as to other matters, such examination is to be subject to the same rules as a direct examination. Sec. 1205. Party producing witness, how far may impeach his credit.—Impeaching own witness. The party producing a witness is not allowed to impeach his credit by evidence of bad character, but he may contradict him by other evidence, and may also show that he has made at other times statements inconsistent with his present testimony, as provided in section 1208.1119 Sec. 1206. Witness, how examined; when reexamined.— A witnessReexamination of witness. once examined can not be reexamined as to the same matter without leave of the court, but he may be reexamined as to any new matter upon which he has been examined by the adverse party. And after the examinations on both sides are once concluded, the witness can not be recalled without leave of the court. Leave is granted or withheld, in the exercise of a sound discretion. Sec. 1207. How impeached.— A witness may be impeached by theImpeaching a witness, by contradictory evidence; general reputation. party against whom he was called, by contradictory evidence or by evidence that his general reputation for truth, honesty, or integrity is bad, but not by evidence of particular wrongful acts, except that it may. be shown by the examination of the witness, or the record of the judgment, that he had been convicted of a felony. Sec. 1208. Same.— A witness may also be impeached by evidenceFormer conflicting statements of witness. that he has made, at other times, statements inconsistent, with his present testimony; but before this can be done the statements must be related to him, with the circumstances of times, places, and persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing, they must be shown to the witness before any question is put to him concerning them. Sec. 1209. Evidence of good character, when allowed.— EvidenceEvidence of good character, admissibility. of the good character of a party is not admissible in a civil action, nor of a witness in any action, until the character of such party or witness has been impeached, or unless the issue involves his character. Sec. 1210. Writing shown to witness may be inspected by adverse party.—Inspection of writings shown witness. Whenever a writing is shown to a witness, it may be inspected by the opposite party, and no question must be put to the witness concerning a writing until it has been so shown to him. Sec. 1211. Examination of adverse party.— A party to the recordExamination of adverse party. of any civil action or proceeding or a person for whose immediate benefit such action or proceeding is prosecuted or defended, or the directors, officers, superintendent or managing agent of any corporation which is a party to the record, may be examined by the adverse party as if under cross-examination, subject to the rules applicable to the examination of other witnesses. The party calling such adverse witness shall not be bound by his testimony, and the testimony given by such witness may be rebutted by the party calling him for such examination by other evidence. Such witness, when so called, may be examined by his own counsel, but only as to the matters testified to on such examination. effect of evidenceEffect of evidence. Sec. 1212. Jury judges of effect of evidence, but to be instructed on certain points.—Jury to be judge of. Where trial is by jury, the jury, subject to the control of the court, in the cases specified in this code, are the judges of the effect or value of evidence addressed to them, except when it is declared to be conclusive. They are, however, toInstructions by the court. be instructed by the court on all proper occasions: 1. That their power of judging of the effect of evidence is notPower of judging not to be arbitrary, etc. arbitrary, but to be exercised with legal discretion, and in subordination to the rules of evidence; 2. That they are not bound to decide in conformity with theNumber of witnesses not controlling. declarations of any number of witnesses, which do not produce conviction in their minds, against a less number or against a presumption or other evidence satisfying their minds;1120 3. Witness testifying falsely. That a witness false in one part of his testimony is to be distrusted in others; 4. Testimony of accomplice. That the testimony of an accomplice ought to be viewed with distrust, and the evidence of the oral admissions of a party with caution; 5. Affirmative must be proved in civil action; preponderance of evidence.Proof beyond reasonable doubt in criminal prosecution. That in civil cases the affirmative of the issue must be proved, and when the evidence is contradictory the decision must be made according to the preponderance of evidence; that in criminal cases guilt must be established beyond reasonable doubt; 6. Intrinsic value not controlling. That evidence is to be estimated not only by its own intrinsic weight, but also according to the evidence which it is in the power of one side to produce and of the other to contradict; and, therefore, 7. When weaker evidence offered, if stronger available. That if weaker and less satisfactory evidence is offered, when it appears that stronger and more satisfactory was within the power of the party, the evidence offered should be viewed with distrust. rights and duties of witnessesRights and duties of witnesses. Sec. 1213. Witness bound to attend when subpoenaed.—Attendance under subpoena compulsory. A witness, served with a subpoena, must attend at the time appointed, with any papers under his control lawfully required by the subpoena, and answer all pertinent and legal questions; and, unless sooner discharged, must remain until the testimony is closed. Sec. 1214. Witness bound to answer questions.—Testimony compulsory.Exceptions.Self-incriminatory, etc., testimony. A witness must answer questions legal and pertinent to the matter in issue, though his answer may establish a claim against himself; but he need not give an answer which will have a tendency to subject him to punishment for a felony; nor need he give an answer which will have a direct tendency to degrade his character, unless it be to the very fact in issue, or to a fact from which the fact in issue would be presumed. But a witness must answer as to the fact of his previous conviction for felony. Sec. 1215. Right of witness to protection.—Right to protection. It is the right of a witness to be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; to be detained only so long as the interests of justice require it; to be examined only as to matters legal and pertinent to the issue. Sec. 1216. Witness protected from arrest when attending, or going, or returning.—Exemption from arrest. Every person who has been, in good faith, served with a subpoena to attend as a witness before a court, judge, commissioner, referee, or other person, in a case where the disobedienceArrest void. of the witness may be punished as a contempt, is exonerated from arrest in a civil action while going to the place of attendance, necessarily remaining there, and returning therefrom. Sec. 1217. Arrest void, and party making arrest liable, and so forth.—Liability of person arresting witness. The arrest of a witness, contrary to the preceding section, is void, and, when willfully made, is a contempt of the court; and the person making it is responsible to the witness arrested for double the amount of the damages which may be assessed against him, and is also liable to an action at the suit of the party serving the witness with the subpoena, for the damages sustained by him in consequence of the arrest. Sec. 1218. To make affidavit if arrested.—Arrest by officer. An officer is not liable to the party for making the arrest in ignorance of the facts creating the exoneration, but is liable for any subsequent detention of the Affidavit by party arrested.party, if such party claim the exemption, and make an affidavit stating: 1. Under subpoena. That he has been served with a subpoena to attend as a witness before a court, officer, or other person, specifying the same, the place 1121of attendance, and the action or proceeding in which the subpoena was issued; and 2. That he has not thus been served by his own procurement, withNot of own procurement. the intention of avoiding an arrest; 3. That he is at the time going to the place of attendance, orTrial is in progress. returning therefrom, or remaining there in obedience to the subpoena. The affidavit may be taken by the officer, and exonerates him fromExoneration of officer for discharge. liability for discharging the witness when arrested. Sec. 1219. Court may discharge witness from arrest.— The courtDischarge from arrest by court. or officer before whom the attendance is required, may discharge the witness from an arrest made in violation of section 1216. If the court has adjourned before the arrest, or before application for the discharge, a judge of the court may grant the discharge. evidence in particular cases, and miscellaneous and general provisionsEvidence in particular eases, miscellaneous and general provisions. evidence in particular casesEvidence in particular cases. Sec. 1220. An offer equivalent to tender.— An offer in writingOffer equivalent to tender. to pay a particular sum of money, or to deliver a written instrument or specific personal property, is, if not accepted, equivalent to the actual production and tender of the money, instrument, or property. Sec. 1221. Whoever pays entitled to receipt.— Whoever paysRight to receipt. money, or delivers an instrument or property, is entitled to a receipt therefor from the person to whom the payment or delivery is made, and may demand a proper signature to such receipt as a condition of the payment or delivery. Sec. 1222. Objections to tender must be specified.— The personObjections to tender. to whom a tender is made must, at the time, specify any objection he may have to the money, instrument, or property, or he must be deemed to have waived it; and if the objection be to the amount of money, the terms of the instrument, or the amount or kind of property, he must specify the amount, terms, or kind which he requires, or be precluded from objecting afterwards. Sec. 1223. Compromise offer of no avail.— An offer of compromiseCompromise offer not admission. is not an admission that anything is due. Sec. 1224. Admission of defendant in divorce proceedings.— InAdmissions of defendant in divorce proceedings. proceedings for divorce, no admission of the defendant shall be taken as evidence unless the court shall be satisfied that such admission was made in sincerity and without fraud or collusion to enable the plaintiff to obtain a divorce. (Act Cong. Sept. 21,Vol. 42, p. 1010. 1922, C. 370, § 16, 42 Stat. 1010.) proceedings to perpetuate testimonyProceedings to perpetuate testimony. Sec. 1225. Evidence may be perpetuated.— The testimony of aTestimony of witness. witness may be taken and perpetuated as provided in sections 1226 to 1231. Sec. 1226. Manner of application for order; order.— The applicant must produce to the judge of the district court a petition,Petition. verified by the oath of the applicant, stating: 1. That the applicant expects to be a party to an action in a courtExpectation of future legal action. in the Canal Zone, and, in such case, the names of the persons whom he expects will be adverse parties; or, 2. That the proof of some fact is necessary to perfect the title toProof of certain fact essential. property in which he is interested, or to establish marriage, descent, heirship, or any other matter which may hereafter become material to establish, though no suit may at the time be anticipated, or, if anticipated, he may not know the parties to such suit; and,1122 3. Name of witness, facts involved, etc. The name of the witness to be examined, his place of residence, and a general outline of the facts expected to be proved. Order to issue.The judge to whom such petition is presented must make an order allowing the examination, and designating the officer before whom Notice.the same must be taken, and prescribing the notice to be given, which notice, if the parties expectant are known and reside in the Canal Zone, must be personally served, and, if unknown, such notice must be served on the clerk of the court, and by publication thereof in some newspaper, to be designated by the judge, for the same period required for the publication of summons. The judge must also designate in his order the clerk of the court to whom the deposition must be returned when taken. Sec. 1227. Notice of time and place to be given.—Taking of deposition. The person appointed by the judge to take the depositions is authorized, if a resident of the Canal Zone, on receiving a copy of the order of the judge, and of the notice prescribed in the last section, with proof of its personal service or publication; or, if a resident without the Canal Zone, on receiving the commission mentioned in the next section, with proof of like service of publication of the notice; to take the deposition of the witness named in the order of the judge, or in the commission, or, if more than one witness is thus named, of such of them as appear before him, at the time designated, and the taking of the same may be continued from time to time. Sec. 1228. Manner of taking the deposition.—Manner of taking. The examination must be by question and answer, and if the testimony is to be taken in a State of the United States, it must be taken upon a commission to be issued by the judge allowing the examination, under the seal of the court of which he is judge, and upon interrogatories, to be settled in the same manner as in cases of depositions taken under commission in pending actions, unless the parties expectant, if known, otherwise agree. If such parties are unknown, notice of the settlement of the interrogatories shall be published in some newspaper for Deposition to be read to, and subscribed by witness.such time as the judge may designate. The deposition, when completed, must be carefully read to or by the witness and be subscribed by him, then certified by the officer or person taking the same, and shall then be sealed up and delivered or transmitted to the clerk designated in the order of the judge allowing the examination, who All papers to be filed.shall file the same when received. The judge allowing the examination shall file with the clerk the order for the examination, the petition on which the same was granted, with proof of service of the order and notice. Sec. 1229. Papers prima facie evidence.—Papers prima facie evidence. The petition and order, and papers filed by the judge, as provided in section 1228, or a certified copy thereof, are prima facie evidence of the facts stated therein *Ante*, p. 1121.to show compliance with the provisions of sections 1225 to 1231. Sec. 1230. When the evidence may be produced.—Production of, in court. If a trial be had between the parties named in the petition as parties expectant, or their successors in interest, or between any parties wherein it may be material to establish the facts which such depositions prove, or tend to prove, upon proof of the death, or insanity of the witnesses, or that they can not be found or are unable, by reason of age or other infirmity, to give their testimony, the depositions or copies thereof may be used by either party, subject to all legal objections; but if the parties attended at the examination, no objections to the form of an interrogatory can be made at the trial, unless the same was stated at the examination. Sec. 1231. Effect of the deposition.—Effect of. The deposition so taken and read in evidence has the same effect as the oral testimony of the witness, and no other, and every objection to the witness, or to 1123him, may be made in the same manner as if he were examined orally at the trial. administration of oaths and affirmationsAdministration of oaths, etc. Sec. 1232. Judicial and certain officers authorized to administer oaths.—Officials authorized to administer. Every court, every judge, or clerk of any court, every magistrate, and every notary public, and every officer or person authorized to take testimony in any action or proceeding, or to decide upon evidence, has power to administer oaths or affirmations. Sec. 1233. Form of ordinary oath to a witness.— An oath, orForm of. affirmation, in an action or proceeding, may be administered as follows, the person who swears, or affirms, expressing his assent when addressed in the following form: “You do solemnly swear (or affirm, as the case may be), that the evidence you shall give in this issue (or matter), pending between ____ and ____, shall be the truth, the whole truth, and nothing but the truth, so help you God.” Sec. 1234. Form may be varied to suit witness’ belief.— WheneverForm may be varied. the court before which a person is offered as a witness is satisfied that he has a peculiar mode of swearing, connected with or in addition to the usual form of administration, which, in his opinion, is more solemn or obligatory, the court may, in its discretion, adopt that mode. Sec. 1235. Same.— When a person is sworn who believes in anyForm, non-Christians. other than the Christian religion, he may be sworn according to the peculiar ceremonies of his religion, if there be any such. Sec. 1236. Any person who prefers it may declare or affirm.—Affirmation, etc. Any person who desires it may, at his option, instead of taking an oath make his solemn affirmation or declaration, by assenting, when addressed, in the following form: “You do solemnly affirm (or declare) that ” and so forth, as in section 1233. general provisionsGeneral provisions. Sec. 1237. Questions of fact, how tried.— All questions of fact,Trial of questions of fact, by jury. where the trial is by jury, other than those mentioned in the next section, are to be decided by the jury, and all evidence thereon is to be addressed to them, except when otherwise provided by this code. Sec. 1238. Questions of law addressed to the court.— All questionsQuestions of law, by court. of law, including the admissibility of testimony, the facts preliminary to such admissions, and the construction of statutes and other writings, and other rules of evidence, are to be decided by the court, and all discussions of law addressed to it. Whenever the knowledge of the court is, by this code, made evidence of a fact, the court is to declare such knowledge to the jury, who are bound to accept it. Sec. 1239. Questions of fact by court or referee.— The provisionsOf fact, by judge, referee, etc. contained in this chapter respecting the evidence on a trial before a jury, are equally applicable on the trial of a question of fact before a court, referee, or other officer. CHAPTER 39.— REPEALSREPEALS. Sec. 1240. Repeal of existing laws.— The Code of Civil ProcedureExecutive Order No. 597½, as amended.All acts, ordinances, etc., in conflict herewith. of the Canal Zone promulgated by the Executive Order of March 22, 1907, and all amendments thereto, and all other acts, ordinances, orders, and parts thereof in conflict herewith, are hereby repealed. Approved, February 27, 1933. To provide a new civil code for the Canal Zone and to repeal the existing civil code. 1933-02-27 128 Chapter 47 Stat. 1124 United States Government Publishing Office text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain. Digitization Vendor 2024-12-27 72 2 public 1124 [CHAPTER 128.] AN ACT To provide a new civil code for the Canal Zone and to repeal the existing civil code.February 27, 1933.[[H. R. 7522.](href=/us/bill/72/hr/7522)][[Public, No. 376.](/us/bill/72/pl/376)] *Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled*,Civil Code of Canal Zone. That the seventy-seven chapters hereinafter set forth shall constitute the Civil Code of the Canal Zone. CHAPTER 1.— PRELIMINARY PROVISIONSPRELIMINARY PROVISIONS. Section 1. Title of this Act.— Title.This Act shall be known as the Civil Code of the Canal Zone. Sec. 2. When this code takes effect.— Effective date.This code shall take effect on the first day of October, nineteen hundred and thirty-three. Sec. 3. Not retroactive.— Not retroactive.No part of it is retroactive, unless expressly so declared. Sec. 4. Rules of construction.— Rules of construction.The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this code. The code establishes the law of the Canal Zone 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. Sec. 5. Provisions similar to existing laws, how construed.— Construing provision similar to existing laws.The provisions of this code, so far as they are substantially the same as existing statutes, must be construed as continuations thereof, and not as new enactments. Sec. 6. Actions, and so forth, not affected.— Actions, etc., not affected.No action or proceeding commenced before this code takes effect, and no right accrued, is affected by its provisions. Sec. 7. Legal holidays.— Holidays.Executive Order No. 1888.Except as otherwise provided in section 12 of the Executive order of February 2, 1914, as amended, the following are the legal holidays in the Canal Zone: Every Sunday, January 1, February 22, Good Friday, May 30, July 4, Labor Day, November 3, Thanksgiving Day, and December 25. If a legal holiday other than Sunday falls on the first day of the week, the Monday following will be observed as a legal holiday. As far as practicable, all public business will be suspended on these days. Sec. 8. Business days.— Business days.All other days than those mentioned in section 7 are to be deemed business days for all purposes. Sec. 9. Computation of time.— 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. Sec. 10. Certain acts not to be done on holidays.— Performances on holidays.Whenever any act of a secular nature, other than a work of necessity or mercy, is appointed by law or contract to be performed upon a particular day, which day falls upon a holiday, it may be performed upon the next business day, with the same effect as if it had been performed upon the day appointed. Sec. 11. Words and phrases, how construed.— Words and phrases, construction.Words and phrases are construed according to the context and the approved usage of the language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, or are defined in section 12, are to be construed according to such peculiar and appropriate meaning or definition. 1125 Cross References Technical words, how construed, see sections 361 and 556.*Post*, pp. 1173, 1198. Construction of words in contracts, see sections 555 and 556.*Post*, p. 1198. Sec. 12. Words; definition; signification of words.— Words usedDefinition; signification. in this code in the present tense include the future as well as the present; words used in the masculine gender include the feminine and neuter; the singular number includes the plural, and the plural the singular; the word person includes a Corporation as well as a natural person; writing includes printing and typewriting; oath includes affirmation or declaration; and every mode of oral statement, under oath or affirmation, is embraced by the term “testify”, and every written one in the term “depose”; signature or subscription includes mark, when the person can not 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 sworn statement be witnessed by two persons who must subscribe their own names as witnesses thereto. The following 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 otherwise expressed; 5. The word “will” includes codicil. Sec. 13. Notice, actual and constructive.— Notice is:Notice. 1. Actual—which consists in express information of a fact; or,Active. 2. Constructive—which is imputed by law.Constructive. Sec. 14. Constructive notice, when deemed.— Every person who has actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact, has constructive notice of the fact itself in all cases in which, by prosecuting such inquiry, he might have learned such fact. CHAPTER 2.— PERSONSPERSONS. Sec. 15. Minors, who are.— Minors.*Provisos.*Construction.*Post*, p. 1143.Minors are all persons under twenty-one years of age: *Provided*, That this section shall be subject to the provisions of chapters 4 to 6 of this code and shall not be construed as repealing or limiting the provisions of section 148: *Provided, further*, That upon the lawful marriage of any female of Married females, of 18 to 21 years.the age of eighteen years or over but under the age of twenty-one years, such female shall be deemed an adult person for the purpose of entering into any engagement or transaction respecting property or any contract, the same as if such person were over twenty-one years of age. Sec. 16. Periods of minority, how calculated.— Calculation of periods of minority.The periods of specified in section 15 must be calculated from the first minute of the day on which persons are born to the same minute of the corresponding day completing the period of minority. Sec. 17. Adults, who are.— Adults.All other persons are adults. Sec. 18. Unborn child.— Unborn child, status.A child conceived, but not yet born, is to be deemed an existing person, so far as may be necessary for its interests in the event of its subsequent birth. 1126 Cross Reference*Post*, pp. 1155, 1157, 1174, 1181.Posthumous children, rights of, see sections 213, 231, 370, and 419. Sec. 19. Delegation of powers; minors.— Minors.Delegation of powers.A minor can not 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 possession or control. Sec. 20. Contracts by minors.— Contracts by.A minor may make any other contract than as specified in section 19, in the same manner as an adult, subject only to his power of disaffirmance under the provisions of this chapter, and subject to the provisions of the chapter on marriage. Sec. 21. When minor may disaffirm.— When may disaffirm.In all cases other than those specified in sections 22 and 23, the contract 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 representatives; and if the contract be made by the minor whilst he is over the age of eighteen, it may be disaffirmed in like manner upon restoring the consideration to the party from whom it was received, or paying its equivalent. Sec. 22. Minor can not disaffirm contract for necessaries.— Can not 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. Sec. 23. Minor can not disaffirm certain obligations.— Statutory obligations.A minor can not disaffirm an obligation, otherwise valid, entered into by him under the express authority or direction of a statute. Sec. 24. Contracts by persons without understanding.— Contracts by persons without understanding.A person entirely without understanding has no power to make a contract of any kind, but he is liable for the reasonable value of things furnished to him necessary for his support or the support of his family. Cross Reference*Post*, p. 1191.Contracts of insane persons, see sections 491 and 492. Sec. 25. Contracts by persons of unsound mind.— Unsound mind.A Contract of a person of unsound mind, but not entirely without understanding, made before his incapacity has been judicially determined, is subject to rescission, as provided in sections 580 to 583. Cross Reference*Post*, pp. 1201, 1337.Rescission of contracts, see sections 580 to 583 and 1645 to 1647. Sec. 26. Powers of persons whose incapacity has been been adjudged.— Powers of persons whose incapacity has been adjudged.After his incapacity has been judicially determined, a person of unsound mind can make no 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. Sec. 27. Minors liable for wrongs, but not liable for exemplary damages.— Tort liability of minor; exemplary damages.A minor, or person of unsound mind, of whatever degree, is civilly liable for a wrong done by him, but is not liable in exemplary damages unless at the time of the act he was capable of knowing that it was wrongful. 1127 Sec. 28. Minors may enforce their rights.— A minor may enforceMinors may enforce rights. his rights by civil action, or other legal proceedings, in the same manner as a person of full age, except that a guardian must conduct the same. CHAPTER 3.— PERSONAL RIGHTSPERSONAL RIGHTS. Section 29. General personal rights.— Besides the personalGeneral. rights mentioned or recognized in the Executive Order of May 9, 1904, and in the Code of Criminal Procedure, 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. Section 30. Defamation, what.— Defamation is effected by:Defamation. 1. Libel; 2. Slander. Sec. 31. Libel, what.— Libel is a false and unprivileged publicationLibel. 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. Cross Reference Privileged publication, see sections 33 and 34. Sec. 32. Slander, what.— Slander is a false and unprivilegedSlander. publication other than libel, which: 1. Charges any person with crime, or with having been indicted, convicted, or punished for crime; 2. Imputes in him the present existence of an infectious, contagious, or loathesome disease; 3. Tends directly to injure him in respect to his office, profession, trade, or business, either by imputing to him general disqualification in those respects which the office or other occupation 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 of a want of chastity; or, 5. Which, by natural consequence, causes actual damage. Sec. 33. Privileged publications.— A privileged publication isPrivileged publications. one made— 1. In the proper discharge of an official duty. 2. In any judicial proceeding, or in any other official proceeding authorized by law: *Provided*, That an allegation or averment*Proviso.*Allegation in divorce, etc., proceedings.*Post*, p. 1136. contained in any pleading or affidavit filed in an action for divorce or an action prosecuted under section 97 made of or concerning a person by or against whom no affirmative relief is prayed in such action shall not be a privileged publication as to the person making said allegation or averment within the meaning of this section unless such pleading be verified or affidavit sworn to, and be made without malice, by one having reasonable and probable cause for believing the truth of such allegation or averment and unless such allegation or averment be material and relevant to the issues in such action. 3. In a communication, without malice, to a person interested therein,
(1)by one who is also interested, or
(2)by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent, or
(3)who is requested by the person interested to give the information. 1128 4. By a fair and true report, without malice, in a public journal, of
(1)a judicial or
(2)other public official proceeding, or
(3)of anything said in the course thereof, or
(4)of a verified charge 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
(1)the proceedings of a public meeting, if such meeting was lawfully convened for a lawful purpose and open to the public, or
(2)the publication of the matter complained of was for the public benefit. Sec. 34. Malice not inferred.— Malice not inferred.In the cases provided for in subdivisions three, four, and five, of section 33, malice is not inferred from the communication or publication. Sec. 35. Personal relations forbid abduction and seduction.— Personal relations forbid abduction and seduction.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 daughter or orphan sister. Cross Reference*Post*, p. 1333.Damages for seduction, see section 1619. Sec. 36. Right to use force.— 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. CHAPTER 4.— MARRIAGEMARRIAGE. Sec. 37. What constitutes marriage.— What constitutes.Marriage is a personal relation arising out of a civil contract, to which the consent of parties capable of making that contract is necessary. Consent alone will not constitute marriage; it must be followed by a solemnization authorized by this code. Sec. 38. Marriage; how proved.— 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. Sec. 39. What marriages void without being so decreed.—
(a)When are void.A marriage celebrated in the Canal Zone after December 29, 1926, shall be void, without being so decreed—
(1)*Post*, p. 1180.If between persons related by consanguinity within the fourth degree, determined according to sections 405 to 409;
(2)If either party thereto has been previously married and such previous marriage has not been terminated by death, annulment, or a final decree of divorce;
(3)If either party thereto is not present in person at the celebration of the marriage.
(b)By judicial decree.Vol. 44, p. 927.A void marriage may, in addition, be declared by judicial decree, or be shown in any collateral proceeding, to have been void from the time of its celebration. (Act Cong. Dec. 29, 1926, c. 19, § 8, 44 Stat. 927.) Sec. 40. What marriages voidable.—
(a)Voidable.A marriage celebrated in the Canal Zone after December 29, 1926. shall be voidable—
(1)If either party thereto, at the time of the marriage, is an idiot or a lunatic;
(2)If the consent of either party thereto was procured by force or fraud; 1129
(3)If either party thereto is, at the time of the marriage, incapable, from physical cause, of entering into the marriage state;
(4)If, because of the age of either party thereto, a written consent*Post*, p. 1130. under section 46 was required, and the marriage was celebrated without such consent; or
(5)If, at the time of the marriage, the male is under seventeen or the female is under fourteen years of age.
(b)A voidable marriage shall be held to be valid until it isValid until judicially annulled.Vol. 44, pp. 928, 1023. annulled, by judicial decree, as of the date of such decree. (Acts Cong. Dec. 29, 1926, c. 19, § 9, 44 Stat. 927; Jan. 22, 1927, c. 52, 44 Stat. 1023.) Sec. 41. Annulment of marriage celebrated elsewhere.—
(a)Marriages outside of Canal Zone.A marriage celebrated outside of the Canal Zone may be declared void or may be annulled in the same manner and with the same effect as though it had been celebrated in the Canal Zone if the petitioner shall have resided in the Canal Zone within a period of thirty days before and a period of thirty days after the date of such marriage.
(b)A suit to have any such marriage celebrated outside the CanalInstitution of suit by Government.Vol. 44, p. 928. Zone declared void or annulled may, in addition, be instituted by the district attorney for the Canal Zone in the name of the government of the Canal Zone. (Act Cong. Dec. 29, 1926, c. 19, § 10, 44 Stat. 928.) Sec. 42. Jurisdiction of annulment suit; who may institute suit.—
(a)Jurisdiction of suit.The district court shall have jurisdiction of a suit to have a marriage declared void or annulled.
(b)In the case of a male under twenty-one or a female underIn case of minors. eighteen years of age such suit may be instituted through a next friend or by a parent or guardian. In the case of an idiot or a lunatic such suit may be instituted through a next friend.
(c)No suit to have a marriage annulled may be instituted by aKnowledge of voidable circumstances a bar to annulment.Vol. 44, p. 928. person who, when fully capable or contracting marriage, entered into such marriage willfully and with knowledge of the circumstances rendering such marriage voidable. (Act Cong. Dec. 29, 1926, c. 19, § 11, 44 Stat. 928.) Sec. 43. Legitimacy of children of annulled marriages.— A judgmentLegitimacy of children of annulled marriages. of nullity of marriage does not affect the legitimacy of children begotten before the judgment. Cross References Divorce as affecting legitimacy of children, see section 99.*Post*, p. 1137. Legitimate children, who are, see sections 136 and 138.*Post*, p. 1141. Legitimacy of children of annulled marriage, see section 403.*Post*, p. 1179. Presumption of legitimacy of children, see sections 136 and 137.*Post*, p. 1141. Who may dispute legitimacy of child, see section 138.*Post*, p. 1141. Sec. 44. Custody of children of annulled marriages.— The courtCustody of. must award the custody of the children of a marriage annulled on the ground of fraud or force to the innocent parent, and may also provide for their education and maintenance out of the property of the guilty party. Sec. 45. Effect of judgment of nullity.— A judgment of nullityEffect of judgment of nullity. of marriage rendered is conclusive only as against the parties to the action and those claiming under them. Cross Reference Effect of decree of divorce, see section 98.*Post*, p. 1137. Sec. 46. Capability of minors to contract marriage.—
(a)Age restriction of minors.Except as provided in subdivision (b), a male under twenty-one years of age or a female under eighteen years of age may not enter into a marriage in the Canal Zone. 1130
(b)Consent of parents, etc.A male seventeen years of age or over and under twenty-one years of age, or a female fourteen years of age or over and under eighteen years of age, may enter into a marriage with the written consent of his or her natural or adopted parents, or of the parent having custody of such male or female if such parents are divorced, or of one of such parents if the other is dead, or has deserted his or Vol. 44, p. 928.her family, or has been adjudged insane or a lunatic, or of a legally appointed guardian if there is no parent qualified to give such consent. (Act Cong. Dec. 29, 1926, c. 19, § 12. 44 Stat. 928.) Sec. 47. Application for and issuance of license; fee.—
(a)License.No marriage shall be celebrated in the Canal Zone unless a license to marry has first been secured from the clerk of the division of the *Provisos*.Citizenship requirement.district court in which the marriage is to be celebrated: *Provided, however,* That no marriage license shall be granted unless one of the parties thereto is an American Citizen, or a resident of the Canal Lepers.Zone: *And provided further*, That no marriage license shall be issued to a leper except upon a certificate of approval by the Chief Health Officer of the Canal Zone. Such license when issued shall be accompanied by a marriage certificate to be filled in by the person celebrating the marriage.
(b)Issue by clerk.Such clerk shall, upon application therefor in accordance with subdivision (c), accompanied by the written consent when required by subdivision
(b)of section 46, issue a license to marry if it appears Statement required.to the satisfaction of such clerk from the sworn statement of the persons desiring to marry, or, if required by such clerk, from the sworn statement of another, that no legal impediment to the marriage is known to exist.
(c)The application for a license to marry shall state—
(1)The name, address, age, color, and race of each of the persons to be married;
(2)The relationship, if any, of such persons, by consanguinity or affinity;
(3)If either of such persons has been previously married, then the date and place of each previous marriage, the name of each person to whom previously married, and the manner in which each such marriage has been terminated.
(d)The governor shall prescribe the form of the application for a license to marry, of the license to marry, and of the marriage certificate.
(e)Fee.The clerk shall be paid a fee of $2 upon the issuance of a license to marry, and shall keep a record of all licenses issued and of all applications for licenses, together with any written consent of parents or a parent or guardian or the chief health officer Vol. 44, pp. 928, 1023.accompanying the same. Such fee shall be disposed of in the same manner as other fees received by such clerk. (Acts Cong. Dec. 29, 1926, c. 19, § 13, 44 Stat. 928; Jan. 22, 1927, c. 52, 44 Stat. 1023.) Sec. 48. Who may celebrate marriages; license to celebrate marriages.—
(a)Celebration of marriages.Who authorized.A marriage may be celebrated in the Canal Zone only by—
(1)A magistrate of the Canal Zone.
(2)A minister in good standing in any religious society or denomination who resides in the Canal Zone.
(3)Republic of Panama.A minister in good standing in any religious society or denomination who resides in the city of Colon or the city of Panama, in the Republic of Panama, if he has procured from the clerk of the district court for the Canal Zone a license authorizing such minister to celebrate marriages in the Canal Zone. 1131
(b)The clerk shall issue the license provided for in paragraph (3)License to minister in Panama. of subdivision
(a)to any such minister if such clerk is satisfied that such minister is qualified to celebrate marriages in the Canal Zone. The clerk shall be paid a fee of $2 for issuing and recording any such license. Such fee shall be disposed of in the same manner asVol. 44, p. 929. other fees received by such clerk. (Act Cong. Dec. 29, 1926, c. 19, § 14, 44 Stat. 929.) Sec. 49. Certifying, signing, return, and recording of license; marriage certificate.—Marriage certificate, etc.
(a)The judicial officer or minister celebrating a marriage shall—
(1)Certify upon the marriage license that he celebrated such marriage, giving his official title and the time when and place where such marriage was celebrated;
(2)Cause two persons who witnessed the marriage to sign their names on the marriage license as witnesses, each giving his place of residence;
(3)At the time of the marriage, fill out and sign the marriage certificate accompanying the license and deliver it to one of the parties to the marriage; and
(4)Within thirty days after the date of the marriage, return such license, so certified and witnessed, to the clerk who issued such license.
(b)Upon return of a license as required in subdivision (a), theReturn of certified license. clerk shall file the same after making registry thereof in a book to be kept in his office for that purpose only, such registry to contain the Christian and surnames of the parties, the time of their marriage,Vol. 44, p. 929. and the name and title of the person who celebrated the marriage. (Act Cong. Dec. 29, 1926, c. 19, § 15, 44 Stat. 929.) Sec. 50. Violations of provisions of this chapter; punishment.—Violations; punishment.
(a)Any judicial officer or minister who is qualified to celebrate marriages in the Canal Zone and any clerk of court who violates any of the provisions of sections 47, 48, or 49 shall be deemed*Ante*, p. 1130. guilty of a misdemeanor and shall, upon conviction thereof, be punished by a fine of not more than $25, or by imprisonment for not more than thirty days, or both.
(b)Any person who knowingly makes or causes to be made any false oath as to any material matter for the purpose of procuring or aiding another to procure a marriage license shall be deemed guilty of perjury and shall, upon conviction thereof, be punished by imprisonment in the penitentiary for not more than ten years.
(c)Any person who knowingly files or causes to be filed with the clerk a written consent, any signature to which is a forgery, shall be deemed guilty of uttering a forged instrument and shall, upon conviction thereof, be punished by imprisonment in the penitentiary for not more than fourteen years.
(d)Any person who is not qualified to celebrate marriages in the Canal Zone under this chapter and who celebrates in the Canal Zone what purports to be a marriage ceremony shall, upon conviction thereof, be punished by imprisonment in the penitentiary for notVol. 44, p. 929. more than three years. (Acts Cong. Dec. 29, 1926, c. 19, § 16, 44 Stat. 929; Jan. 22, 1927, c. 52, 44 Stat. 1023.) Sec. 51. Declaration where there is no record.— If no recordDeclaration where no record exists. of the solemnization of a marriage heretofore contracted, be known to exist, the parties may join in a written declaration of such marriage, substantially showing:
(1)The names, ages, and residences of the parties.
(2)The fact of marriage.
(3)That no record of such marriage is known to exist. Such declaration must be subscribed by the parties and attested by at least three witnesses. 1132 Sec. 52. To be acknowledged and recorded.— To be acknowledged and recorded.Declarations of marriage must be acknowledged and recorded in the office of the clerk of the district court. Sec. 53. Either party may proceed to test validity of marriage.— Validity.Either party may test.If either party to any marriage denies the same, or refuses to join in a declaration thereof, the other may proceed, by action in the district court, to have the validity of the marriage determined and declared. Sec. 55. Marriages contracted without the zone.— Contracted without the Zone.*Ante*, p. 1129.Except as otherwise provided in section 41, all marriages contracted without the Canal Zone, which would be valid by the laws of the country in which the same were contracted, are valid in the Canal Zone. CHAPTER 5.— DIVORCEDIVORCE. Cross references.Cross References Admission of defendant as evidence, see section 16 of Act Sept. 21, 1922, c. 370, 42 Stat. 1010.Vol. 42, p. 1010. Cross complaint for divorce and proceedings thereon, see section 19 of Act Sept. 21, 1922, c. 370, 42 Stat. 1010.Vol. 42, p. 1010. Practice in general in suits for divorce, see section 16, as amended, of Act Sept. 21, 1922, c. 370, 42 Stat. 1010.Vol. 42, p. 1010. Process and Service thereof in suits for divorce, see section 16, as amended, of Act Sept. 21, 1922, c. 370, 42 Stat. 1010.Vol. 42, p. 1010. Time for appearance and answer, see section 16, as amended, of Act Sept. 21, 1922, c. 370, 42 Stat. 1010.Vol. 42, p. 1010. Venue of suits for divorce, see section 13 of Act Sept. 21, 1922, c. 370, 42 Stat 1008.Vol. 42, p. 1008. causes for divorce Sec. 60. Causes for divorce.— Causes.In every case in which a marriage has been, or hereafter may be, contracted and solemnized between any two persons, and it shall be adjudged, in the manner hereinafter provided,
(1)that either party has committed adultery subsequent to the marriage except as hereinafter provided; or
(2)has willfully deserted and absented herself or himself from the husband or wife without any reasonable cause for a period of two years; or
(3)has been guilty of willful neglect which shall consist of the willful failure of the husband to provide for his wife the necessaries of life, he having the ability to do so, or the willful failure to do so by reason of voluntary idleness, profligacy, or dissipation, in either case continued for a period of one year; or
(4)has been guilty of habitual drunkenness for the space of two years; or
(5)has attempted the life of the other by any means showing malice; or
(6)has been guilty of extreme cruelty; or
(7)has been subsequent to the marriage, convicted of felony, it shall be lawful for the injured party to obtain a divorce and dissolution of such marriage contract in the district court of the Vol. 42, p. 1008.Canal Zone. (Act Cong. Sept. 21, 1922, c. 370, § 12, 42 Stat. 1008.) Sec. 61. Adultery defined.— “Adultery,” defined.Adultery is the voluntary sexual intercourse of a married person with a person other than the offender’s husband or wife. Sec. 62. Desertion, what.— “Desertion,” defined.Willful desertion is the voluntary separation of one of the married parties from the other with intent to desert. Sec. 63. Desertion, how manifested.— 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. 1133 Sec. 64. In case of stratagem or fraud, who commits desertion.— Offending party.In case of stratagem, etc.When one party is induced, by the stratagem or fraud of the other party, to leave the family dwelling-place, or to be absent, and during such absence the offending party departs with intent to desert the other, it is desertion by the party committing the stratagem or fraud, and not by the other. Sec. 65. In case of cruelty, where one party leaves other, who commits desertion.— In case of cruelty.Departure or absence of one party from the family dwelling-place, caused by extreme 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. Sec. 66. Separation by consent not desertion.— Separation, not desertion.Separation by consent, with or without the understanding that one of the parties will apply for a divorce, is not desertion. Cross Reference Agreement for separation, see section 114.*Post*, p. 1139. Consent revocable, see section 68. Sec. 67. Absence becomes desertion, when.— When absence becomes desertion.Absence or separation, proper in itself, becomes desertion whenever the intent to desert is fixed during such absence or separation. Sec. 68. Consent to separate revocable.— Consent to separate revocable.Consent to a separation is a revocable act, and if one of the parties afterwards, in good faith, seeks a reconciliation and restoration, but the other refuses it, such refusal is desertion. Sec. 69. Desertion, how cured; effect of refusing condonation.— Desertion, how cured; refusing condonation.If one party deserts the other, and before the expiration of statutory period required to make the desertion a cause of divorce, returns and offers in good faith to fulfill the marriage contract, and solicits condonation, the desertion is cured. If the other party refuse such offer and condonation, the refusal shall be deemed and treated as desertion by such party from the time of refusal. Sec. 70. Wife must abide by husband’s selection of home, or it is desertion on her part.— Selection of home, etc.The husband may choose any reasonable place or mode of living, and if the wife does not conform thereto, it is desertion. Sec. 71. If place is unfit, and wife refuses to conform, it is desertion by husband.— If place unfit.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. Sec. 72. Habitual intemperance, what.— Habitual intemperance.Habitual drunkenness is that degree of intemperance from the use of intoxicating drinks which disqualifies the person a great portion of the time from properly attending to business, or which would reasonably inflict a course of great mental anguish upon the innocent party. Sec. 73. Extreme cruelty, what.— Extreme cruelty.Extreme cruelty is the wrongful infliction of grievous bodily injury, or grievous mental suffering, upon the other by one party to the marriage. causes for denying divorceDenial of divorce. Sec. 74. Divorces denied, on showing what.— Reasons.Divorces must be denied upon showing: 1. Connivance; or, 2. Collusion; or, 3. Condonation; or, 4. Recrimination; or, 5. Limitation and lapse of time. 1134 Cross References Connivance, see section 75. Collusion, see section 77. Condonation, see sections 78 et seq. Recrimination, see sections 85 et seq.*Post*, p. 1135. Limitation and lapse of time, see sections 87 et seq.*Post*, p. 1135. Sec. 75. Connivance, what.— Connivance.Connivance is the corrupt consent of one party to the commission of the acts of the other, constituting the cause of divorce. Sec. 76. Corrupt consent, how manifested.— Corrupt consent.Corrupt consent is manifested by passive permission, with intent to connive at or actively procure the commission of the acts complained of. Sec. 77. Collusion, what.— Collusion.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 purpose of enabling the other to obtain a divorce. Sec. 78. Condonation, what.— Condonation.Condonation is the conditional forgiveness of a matrimonial offense constituting a cause of divorce. Cross Reference Revoking condonation, see section 84.*Post*, p. 1135. Condonation of a recriminatory defense, see section 86. Sec. 79. Requisites to condonation.— Elements of.The following requirements are necessary to condonation: 1. A knowledge on the part of the condoner of the facts constituting the cause of divorce; 2. Reconciliation and remission of the offense by the injured party; 3. Restoration of the offending party to all marital rights. Sec. 80. Condonation implies what.— Implication of.Condonation implies a condition subsequent; that the forgiving party must be treated with conjugal kindness. Sec. 81. Evidence of condonation.— Evidence of.Where the cause of divorce consists of a course of offensive conduct, or arises, in cases of cruelty, from excessive acts of ill-treatment which may, aggregately, constitute the offense, cohabitation, or passive endurance, or conjugal kindness, shall not be evidence of condonation of any of the acts constituting such cause, unless accompanied by an express agreement to condone. Sec. 82. Condonation; can only be made when.— When can be made.In cases mentioned in section 81, condonation can be made only after the cause of divorce has become complete, as to the acts complained of. Sec. 83. Concealment of facts in certain cases makes condonation void.— Concealment of facts.A fraudulent concealment by the condonee of facts constituting a different cause of divorce from the one condoned, and existing at the time of condonation, avoids such condonation. Sec. 84. Condonation, how revoked.— 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 unkindness, not amounting to a cause of divorce, but sufficiently habitual and gross to show that the conditions of condonation had not been accepted in good faith, or not fulfilled. 1135 Sec. 85. Recrimination, what.— Recrimination is a showing byRecrimination. the defendant of any cause of divorce against the plaintiff, in bar of the plaintiff’s cause of divorce. Sec. 86. Condonation; when to bar defense.— Condonation of aWhen condonation is a bar to defense.*Ante*, p. 1134. 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 84, 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. Sec. 87. Divorce, when denied.— A divorce must be denied:Denial of divorce.
(1)When the cause is adultery and the action is not commenced within two years after the commission of the act of adultery, or after its discovery by the injured party; or,
(2)When the cause is conviction of felony, and the action is not commenced before the expiration of two years after a pardon, or the termination of the period of sentence.
(3)In all other cases when there is an unreasonable lapse of time before the commencement of the action. Sec. 88. Lapse of time establishes certain presumptions.— Certain presumptions established by lapse of time.Unreasonable lapse of time is such a delay in commencing the action as establishes the presumption that there has been connivance, collusion, or condonation of the offense, or full acquiescence in the same, with intent to continue the marriage relation notwithstanding the commission of such offense. Sec. 89. Presumptions may be rebutted.— The presumptionsRebuttal. arising from lapse of time may be rebutted by showing reasonable grounds for the delay in commencing the action. Sec. 90. Limitation of time.— There are no limitationsLimitation of time. of time for commencing actions for divorce, except such as are contained in section 87. Sec. 91. Residences of plaintiff in suit for divorce.—
(a)AnyResidence of plaintiff in divorce suit. person having an official residence within the territorial limits of the Canal Zone, or who resides therein for the purpose of any occupation or employment, shall, during such residence, be deemed a resident of the Canal Zone for the purpose of this chapterVol. 42, p. 1008–1010; Vol. 44, p. 927. and sections 13, 15, 16, and 19 of Act September 21, 1922, as amended, notwithstanding that he or she may not have acquired a permanent domicile within the Canal Zone.
(b)No plaintiff shall be entitled to a divorce in pursuanceResidence requirements. of the provisions of said sections who has not actually resided on the Canal Zone continuously during the whole year next before the filing of his or her complaint, which residence shall be duly proven by the plaintiff to the satisfaction of the court by at least two witnesses who are residents of the Canal Zone; and the plaintiff shall file with the complaint his or her own affidavit, in which he or she shall state the length of time plaintiff has resided on the Canal Zone, the place or places where he or she has resided for the last precedingVol. 42, p. 1008. year, and his or her office or occupation. (Act Cong. Sept. 21, 1922, c. 370, § 13 as modified, 42 Stat. 1008.) Cross Reference Venue in suit for divorce, see section 13 of Act of September 21, 1922, c. 370, 42 Stat. 1008.Vol. 42, p. 1008. general provisionsGeneral provisions. Sec. 92. Marriage, how dissolved.— Marriage is dissolved only:How marriage is dissolved.
(1)By the death of one of the parties; or
(2)By the judgment of a court of competent jurisdiction decreeing a divorce of the parties. 1136 Sec. 93. Custody and care of children pending suit.— Custody, etc., of children pending suit.The court may, on the application of either party, make such order concerning the custody and care of the minor children of the parties during the Vol. 42, p. 1010.pendency of the suit as may be deemed expedient and for the benefit of the children. (Act Cong. Sept. 21, 1922, c. 370, § 17, 42 Stat. 1010.) Sec. 94. Alimony pending suit.— Alimony.In all cases of divorce the court may require the husband to pay to the wife or pay into court for her use during the pendency of the suit such sum or sums of money as may enable her to maintain or defend the suit; and in every suit for divorce, the wife, when it is just and equitable, shall be entitled to alimony during the pendency of the suit. And in case of appeal or writ of error by the husband, the district court may grant and enforce Vol. 42, p. 1010.the payment of such money for her defense and such equitable alimony during the pendency of the appeal or writ of error as to the court shall seem reasonable and proper. (Act. Cong. Sept. 21, 1922, c. 370, § 20, 42 Stat. 1010.) Cross Reference Property resorted to In executing this section, see section 102.*Post*, p. 1138. Sec. 95. When bill is taken as confessed; default.— When bill is taken as confessed; default.If the bill is taken as confessed, the court shall proceed to hear the cause by examination of witnesses in open court, and in no case of default shall the court grant a divorce unless the judge is satisfied that all proper means nave been taken to notify the defendant of the pendency of the suit, and that the cause of divorce has been fully proven by competent evidence. Whenever the district judge is satisfied that the interests Vol. 42, p. 1010.of the defendant require it, the court may order such additional notice as equity may seem to require. (Act Cong. Sept. 21, 1922, c. 370, § 16, 42 Stat. 1010.) Sec. 96. Maintenance by husband where divorce denied.— Maintenance by husband where divorce denied.Though judgment of divorce is denied, the court may, in an action for divorce, provide for the maintenance by the husband, of the wife and children of the marriage, or any of them. Cross Reference Alimony generally, see section 101.*Post*, p. 1137. Property resorted to in executing this section, see section 102.*Post*, p. 1138. Sec. 97. Action for permanent support of wife.— Action for maintenance.When the husband 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 *Ante*, p. 1132.divorce as provided in section 60, she may, without applying for divorce, maintain in the district court an action against him for permanent support and maintenance of herself or of herself and children. During the pendency of such action the court may, in its discretion, require the husband to pay as alimony any money necessary for the prosecution of the action and for support and maintenance, 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 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 such order or orders as in its discretion 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. 1137 Cross Reference Property resorted to in executing this section, see section 102.*Post*, p. 1138. Sec. 98. Effect of divorce in general.— The effect of a judgment Effect of divorce in general.decreeing a divorce is to restore the parties to the state of unmarried persons. Sec. 99. Legitimacy of children.— No divorce shall in anywiseLegitimacy of children.Vol. 42, p. 1010. affect the legitimacy of the children of such marriage. (Act Cong. vol. 42, p. 1010. Sept. 21, 1922, c. 370, § 18, 42 Stat. 1010.) Cross Reference Issue of marriage dissolved by divorce legitimate, see section 403.*Post*, p. 1179. Legitimacy of children of annulled marriages, see section 43.*Ante*, p. 1129. Sec. 100. Interlocutory order and appeal therefrom; final decree of divorce.—
(a)Interlocutory order.No final decree granting a divorce shall be entered until after the expiration of the period of six months from the date of the entry of an interlocutory order adjudging that a case for divorce has been proved, and every such interlocutory order shall expressly state that no divorce is granted by it. An appeal may beAppeal. taken from any such interlocutory order in the same manner and within the same time as an appeal from a final decree of such court in any other proceeding.
(b)After the expiration of such period of six months,Final decree. or if an appeal is taken and the case is pending at the time of the expiration of such period then after the final disposition of the case if determined in favor of the plaintiff, the court, upon application filed within thirty days after the expiration of such period or such final disposition, by the person in whose favor such interlocutory order was entered, shall enter a final decree granting a divorce. If no such application is made, the court may, on its own motion, within three months after the expiration of such thirty-day period, enter a final decree of divorce. No appeal may be taken from such final decree.Vol. 42, p. 1011; Vol. 44, p. 926. (Act Cong. Sept. 21, 1922. c. 370, § 21, 42 Stat. 1011; Act Cong. Dec. 29, 1926, c. 19, § 5 as modified, 44 Stat. 926.) Sec. 101. Alimony and maintenance; care, custody, and support of children.— Alimony and maintenance; care, etc., of children.When a divorce shall be decreed the court may make such order touching the alimony and maintenance of the wife, the care, custody, and support of the children, or any of them as, from the circumstances of the parties and the nature of the case, shall be reasonable and just, and in case the wife be plaintiff, to order the defendant to give reasonable securitySecurity for alimony. for such alimony and maintenance, or may enforce the payment of such alimony and maintenance in any other manner consistent with the rules and practice of the court. And the court may, on application, from time to time make such alterations in the allowance of alimony and maintenance and the care, custody, and support of the children as shall appear reasonable and proper. In decreeing a divorce to the wife the court may order the husband to pay alimony in a gross sum or in installments as may seem best. And it may make such orders and enforce the same by attachment and secure the payment of such alimony, but judgment for alimony can not be taken when the defendant is not personally served with summons or does not voluntarily appear.Vol. 42, p. 1010. (Act Cong. Sept. 21, 1922, c. 370, § 20, 42 Stat. 1010.) 1138 Cross Reference Property resorted to in executing this section, see section 102. Sec. 102. Court shall resort to what, in executing certain sections.— Property subject to alimony, etc., orders. *Ante*, pp. 1136, 1137.In executing sections 94, 96, 97, and 101, the court must resort: 1. To the community property; then, 2. To the separate property of the husband. Sec. 103. If wife has sufficient for her support, court may withhold allowance.— When wife has sufficient for her support.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 husband. Sec. 104. Community and separate property may be subjected to support and educate children.— Support, etc., of children from community, etc., property.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. Sec. 105. Disposition of community property on divorce.— Disposition of community property.In case of the dissolution of the marriage by the decree of a court of competent jurisdiction, 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. Sec. 106. Same.— Order for.The court, in rendering a decree of divorce, must make such order for the disposition of the community property, as in this chapter provided, and, whenever necessary for that purpose, may order a partition or sale of the property and a division or other disposition of the proceeds. Sec. 107. Compelling conveyance of property belonging to other spouse.— Conveyance of property equitably belonging to other spouse.Whenever a divorce is granted, if it shall appear to the court that either party holds the title to property equitably belonging to the other, the court may compel conveyance thereof to the Vol. 42, p. 1010.party entitled to the same, upon such terms as it shall deem equitable. (Act Cong. Sept. 21, 1922, c. 370, § 20, 42 Stat. 1010.) Sec. 108. Resumption of maiden or former husband’s name.— Resumption of maiden, etc., name.Vol. 42, p. 1010.The court, upon granting to a woman a divorce from the bonds of matrimony, may allow her to resume her maiden name or the name of any former husband. (Act Cong. Sept. 21, 1922, c. 370, § 20, 42 Stat. 1010.) Sec. 109. Decrees and orders prior to September 21, 1922, legalized.— Decrees, etc., prior to September 21, 1922, legalized.All proceedings in the district court of the Canal Zone, wherein and whereby a decree of divorce was granted prior to September 21, 1922, upon personal service, or service by publication, Vol. 42, p. 1011.and wherein other orders were made affecting the status of the parties or their children, are hereby legalized. (Act Cong. Sept. 21, 1922, c. 370, § 22, 42 Stat. 1011.) CHAPTER 6.— HUSBAND AND WIFEHUSBAND AND WIFE. Section 110. Mutual obligations of husband and wife.— Mutual obligations.Husband and wife contract towards each other obligations of mutual respect, fidelity, and support. Cross Reference Mother aiding in support of children, see section 140.*Post*, p. 1142. Husband’s support of wife, see sections 129 and 130.*Post*, p. 1141. Husband’s selection of dwelling place, etc., see section 70.*Ante*, p. 1133. Sec. 111. Rights of husband, as head of family.— Rights of husband.The husband is the head of the family. He may choose any reasonable place or mode of living, and the wife must conform thereto. 1139 Cross Reference Parent changing residence of child, see section 157.*Post*, p. 1144. Wife’s support of husband, see section 131.*Post*, p. 1141. Sec. 112. In other respects their interests separate.— NeitherProperty interests separate. husband nor wife has any interest in the property of the other, but neither can be excluded from the other’s dwelling. Sec. 113. Husband and wife may make contracts.— EitherIndividual contractual rights. husband or wife may enter into any engagement or transaction with the other, or with any other person, respecting property, which either might if unmarried; subject, in transactions between themselves, to the general rules which control the actions of persons occupying*Post*, pp. 1258–1261. confidential relations with each other, as defined by chapters 49 and 50 on trusts. Sec. 114. Husband and wife; property relations.— A husbandAlteration of legal status. and wife can not, 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. Cross Reference Marriage settlements, see sections 132 to 134.*Post*, p. 1141. Sec. 115. Consideration for agreement of separation.— TheConsideration for agreement of separation. mutual consent of the parties is a sufficient consideration for such an agreement as is mentioned in section 114. Sec. 116. May hold property how.— A husband and wife mayHow property may be held. hold property by joint interests, by interests in common, or as community property. Sec. 117. Separate property of the wife.— All property of theSeparate property of wife. wife, owned by her before marriage, and that acquired afterwards by gift, bequest, devise, or descent, with the rents, issues, and profits thereof, is her separate property. The wife may, without the consent of her husband, convey her separate property. Sec. 118. Separate property of the husband.— All propertySeparate property of husband. 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. Cross Reference Community property, see section 202.*Post*, p. 1154. Community property liable for what debts, see section 122.*Post*, p. 1140. Husband’s control over community property, see section 128.*Post*, p. 1140. Descent of community property, see sections 417 and 418.*Post*, p. 1181. Sec. 119. Property acquired after marriage.— All other propertyProperty acquired after marriage. acquired after marriage by either husband or wife, or both, including personal property wherever situated, heretofore or hereafter acquired while domiciled elsewhere, which would not have been the separate property of either if acquired while residing in the Canal Zone, is community property; but whenever personal property, or any interest therein or encumbrance thereon, is acquired by a married woman by an instrument in writing the presumption is that the same is her separate property, and if acquired by such married woman and her husband, or by her and any other person, the presumption is that she takes the part acquired by her, as an interest in common, unless a different intention is expressed in the instrument; and the presumptions in this section mentioned are conclusive in favor of a purchaser, encumbrancer, payor, or any other person dealing with such married woman, in good faith and for a valuable consideration. 1140 Cross Reference See, also, section 202.*Post*, p. 1154. Sec. 120. Inventory of separate property of wife.— 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 *Post*, p. 1164.manner required by chapter 22 of this code, and recorded in the office of the registrar of property. Sec. 121. Filing inventory notice of wife’s title.— Filing inventory, notice of title.The filing of the inventory in the office of the registrar of property is notice and prima facie evidence of the title of the wife. Sec. 122. Community property; contracts by wife.— Community property; wife’s contracts.The property of the community is not liable for the contracts of the wife, made after marriage, unless secured by mortgage thereof executed by the husband. Cross References Debts of wife, see sections, 125, 126, and 129.*Post*, p. 1141. Community property is liable for husband’s debts, see section 128.*Post*, p. 1141. Necessaries furnished wife, see section 129. Sec. 123. Earnings of wife not liable for debts of the husband.— Wife’s earnings.The earnings of the wife are not liable for the debts of the husband. Sec. 124. Earnings of wife, when living separate, separate property.— Wife’s earnings, when living separate.The earnings and accumulations of the wife, while she is living separate from her husband, are her separate property. Sec. 125. Liability for debts of wife contracted before marriage.— Liability for antenuptial debts of wife.The separate property of the husband is not liable for the debts of the wife contracted before the marriage. Sec. 126. Liability of separate property of wife.— Liability of wife’s property.The separate property of the wife is liable for her own debts contracted before or after her marriage, but is not liable for her husband’s debts; provided, that the separate property of the wife is liable for the Necessaries.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 separate property of the wife held by her at the time of her marriage or acquired by her by devise, succession, or gift, other than by gift from the husband, after marriage. Sec. 127. Married woman’s torts.— Married woman’s torts.For civil injuries committed 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 marriage did not exist. Sec. 128. Management of community personal property.— Management of communal personalty.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*, *Proviso*.Disposal without valuable consideration.That he can not make a gift of such community personal property, or dispose of the same without a valuable consideration, or sell, convey, or encumber the furniture, furnishings, or fittings of the home, or the clothing or wearing apparel of the wife or minor children that is community, without the written consent of the wife. Cross References Community property generally, see section 119.*Ante*, p. 1139. Dissolution of the community by divorce, see section 106.*Ante*, p. 1138. Testamentary control over community property, see sections 417 and 418.*Post*, p. 1181. 1141 Sec. 129. Support of wife.— If the husband neglects to makeSupport of wife, liability for. adequate provision for the support of his wife, except in the cases mentioned in section 130, any other person may, in good faith, supply her with articles necessary for her support, and recover the reasonable value thereof from the husband. Sec. 130. Husband not liable when abandoned by wife.— When wife abandons husband.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; nor is he liable for her support when she is living separate from him, by agreement, unless such support is stipulated in the agreement. Sec. 131. When wife must support husband.— The wifeWhen wife must support husband. must support the husband when he has not deserted her, out of her separate property, when he has no separate property, and there is no community property, and he is unable, from infirmity, to support himself. Cross Reference Mutual obligations of support, see section 110.*Ante*, p. 1138. Sec. 132. Rights of husband and wife governed by what.— TheProperty rights of husband and wife. property rights of husband and wife are governed by this chapter, unless there is a marriage settlement containing stipulations contrary thereto. Sec. 133. Marriage settlement contracts, how executed.— AllMarriage settlement contracts. contracts for marriage settlements must be in writing; subscribed by the party to be charged or by his agent thereunto authorized in writing; and acknowledged or proved in the manner prescribed in chapter 22 of this code. Sec. 134. Minors may make marriage settlements.— Minors may make.A minor capable of contracting marriage may make a valid marriage settlement. CHAPTER 7.— CHILDREN BY BIRTHCHILDREN BY BIRTH. Section 135. Legitimacy of issue of wife cohabiting with husband.— Legitimacy.The issue of a wife cohabiting with her husband, who is not impotent, is indisputably presumed to be legitimate. Sec. 136. Legitimacy of children born in wedlock.— AllChildren born in wedlock. children born in born in wedlock are presumed to be legitimate. Cross References Father legitimating child by acknowledging it, see section 164.*Post*, p. 1145. Illegitimates, heirs to whom, see section 403.*Post*, p. 1179. Legitimacy of children of nullified marriage, see section 43.*Ante*, p. 1129. Legitimating children by marriage of parents, see section 139.*Post*, p. 1142. Mother entitled to custody of illegitimate unmarried minor, see section 144.*Post*, p. 1180. Mother succeeds to estate of illegitimate, see section 404. Rebutting presumption of legitimacy, see section 138. Sec. 137. Legitimacy of children born after dissolution of marriage.— Children born 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. Sec. 138. Who may dispute the legitimacy of a child.— TheWho may dispute legitimacy. presumption of legitimacy can be disputed only by the husband or wife, or the descendant of one or both of them. Illegitimacy, in such case, may be proved like any other fact. Sec. 139. When child becomes legitimate.— Legitimation by marriage.A child born before wedlock becomes legitimate by the subequent11 So in original. marriage of its parents. 1142 Sec. 140. Obligation of parents for the support and education of their children.— Obligation for support, etc.The parent entitled to the custody of a child must give him support and education suitable to his circumstances; provided, that if a child has earnings of his own sufficient therefor, the cost of his support and education may be taken therefrom. 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. Sec. 141. Custody of minors.— Custody of minors.The father and mother of a legitimate unmarried minor child are equally entitled to its custody and Services. 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 and Services. Cross References Action for control of child, see section 143. Control over property of child, see section 146. Property of child, parent as such has no control of, see section 146.*Post*, p. 1143. Relinquishing right to child’s earnings, see section 155. Sec. 142. Husband and wife living separate, neither to have superior right to custody of children.— Custody, when parents separated.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. Sec. 143. When husband or wife may bring action for the exclusive control of children; decree in such cases.— Action for exclusive control of children; decree.Without application for a divorce, the husband or the wife may bring an action for the exclusive control of the children of the marriage; and the district court may, during the pendency of such action, or at the final hearing thereof, or afterwards, make such order or decree in regard to the support, care, custody, education, and control of the children of the marriage, as may be just, and in accordance with the natural rights of the parents and the best interests of the children, and may at any time thereafter amend, vary, or modify such order or decree, as the natural rights and the interests of the parties, including the children, may require. Sec. 144. Custody of illegitimate child.— Custody of illegitimate child.The mother of an illegitimate unmarried minor is entitled to its custody and Services. Cross Reference Inheritanee from illegitimate child, see section 404.*Post*, p. 1180. Sec. 145. Allowance to parents.— Allowance to parents.The district 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. Sec. 146. Parent can not control property of child.— Control child’s property.The parent, as such, has no control over the property of the child. Sec. 147. Remedy for parental abuse.— Remedy for parental abuse.The abuse of parental authority is the subject of judicial cognizance in a civil action brought by the child, or by its relative within the third degree, or by the district attorney of the Canal Zone; and when the abuse is established, the child may be freed from the dominion of the parent, and the duty of support and education enforced. 1143 Cross Reference Parental duty, see section 140.*Ante*, p. 1142. Sec. 148. When parental authority ceases.— The authority of a parent ceases:When parental authority 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. Sec. 149. Remedy when parent dies without providing for the support of his child.— Remedy when parent dies without providing for child’s support, etc.If a parent chargeable with the support of a child dies, leaving it a public charge, and leaving an estate sufficient for its support, the district attorney may claim provision for its support from the parent’s estate by civil action, and for this purpose may have the same remedies as any creditors against that estate, and against the heirs and next of kin of the parent. Sec. 150. Reciprocal duties of parents and children in maintaining each other.— Reciprocal duties of maintenance.It is the duty of the father, the another, and the children of any poor person who is unable to maintain himself by work, to maintain such person to the extent of their ability. The promise of an adult child to pay for necessaries previously furnished to such parent is binding. Cross References Mother supporting children, see section 140.*Ante*, p. 1142. Wife supporting husband, see section 131.*Ante*, p. 1141. Sec. 151. When parent is liable for necessaries supplied to child.— Liability for child’s necessaries.If a parent neglects to provide articles necessary for his child who is under his charge, according to his circumstances, a third person may in good faith supply such necessaries, and recover the reasonable value thereof from the parent. Cross Reference Infant liable on contract for necessaries, see section 22.*Ante*, p. 1126. Sec. 152. When parent is not liable for support furnished his child— When parent is not liable for support furnished.A parent is not bound to compensate the other parent, or a relative, for the voluntary support of his child, without an agreement for compensation, nor to compensate a stranger for the support of a child who has abandoned the parent without just cause. Sec. 153. Husband not bound for the support of his wife’s children by a former marriage.— Liability for support of wife’s children by 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 presumed that he does so as a parent, and, where such is the case, they are not liable to him for their support, nor he to them for their Services. Sec. 154. Compensation and support of adult child.— Compensation and support of adult child.Where a child, after attaining majority, continues to serve and to be supported by the parent, neither party is entitled to compensation, in the absence of an agreement therefor. Sec. 155. Parent may relinquish services and custody of child.— Parent may relinquish control of child.The parent, whether solvent or insolvent, may relinquish to the child the right of controlling him. Abandonment by the parent is presumptive evidence of such relinquishment. Sec. 156. Wages of minors.— Wages of minors.The wages of a minor employed in service may be paid to him. 1144 Sec. 157. Right or parent to determine the residence of child.— 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 welfare of the child. Cross Reference Residence, husband’s right to change, see section 111.*Ante*, p. 1138. CHAPTER 8.— CHILDREN BY ADOPTIONCHILDREN BY ADOPTION. Sec. 158. How child may be adopted.— How adopted.Petition.A resident of the Canal Zone, not married, or a husband and wife jointly, may petition the district court for leave to adopt a minor child; but a written consent must be given for the adoption by the child, if of the age of fourteen years, and by each of his or her living parents who is not hopelessly insane or intemperate, or has not abandoned such child, or if there are no such parents, or if the parents are unknown, or have abandoned such child, or if they are hopelessly insane or intemperate, then by the legal guardian, or if there is no such guardian, then by a discreet and suitable person appointed by the court to act in the proceedings as the next friend of such child; but when such child is an inmate of a charitable or eleemosynary institution within the Canal Zone, and has been previously abandoned by its parents or guardians thereto, then the written consent of the head of such institution must be given; provided, nevertheless, that nothing herein contained shall authorize a guardian to adopt his ward before the termination of the guardianship and the final settlement and approval of his accounts as guardian by the Executive Order No. 597½.Vol. 37, p. 561; Vol. 42, p. 1006.court. (E. O. Mar. 22, 1907, § 794; Act Cong. Aug. 24, 1912, c. 390, §§ 2, 9, 37 Stat. 561; E. O. Mar. 12, 1914, § 10; Act Cong. Sept. 21, 1922, c. 370, § 3, 42 Stat. 1006.) Sec. 159. Adoption by stepfather.— Adoption by stepfather.A resident of the Canal Zone, being the husband of any woman who has a minor child by a deceased husband, may petition the district court for leave to adopt such minor child and for a change in the name of such child; but the written consent must be given to the adoption by the child, if of the age of fourteen years, and by the mother of such child, if she is not hopelessly insane or intemperate, or if such mother is hopelessly insane or intemperate, then by the legal guardian of such child, or if there is no such guardian, then by a discreet and suitable person appointed by the court to act in the proceedings as the next Executive Order No. 597½.Vol. 37, p. 561; Vol. 42, p. 1006.friend of such child. (E. O. Mar. 22, 1907, § 795; Act Cong. Aug. 24, 1912, c. 390, §§ 2, 9, 37 Stat. 561; E. O. Mar. 12, 1914, § 10; Act Cong. Sept. 21, 1922, c. 370, § 3, 42 Stat. 1006.) Sec. 161. Order of the court.— Order of the court.When the foregoing provisions are complied with, if the court is satisfied with the ability of the petitioner to bring up and educate the child properly, having reference to the degree and condition of the child’s parents and the fitness and propriety of such adoption, it shall make an order setting forth the facts and declaring that from that date said child, to all legal intents and purposes, is the child of the petitioner and that its name is thereby changed. The order shall be recorded in the records of the court. (E. O. Mar. 22, 1907, § 796; Act Cong. Aug. 24, 1912, c. 390, §§ 2, 9, 37 Stat. 561; E. O. Mar. 12, 1914, § 10; Act Cong. Sept. 21, 1922, c. 370, § 3, 42 Stat. 1006.) Sec. 162. Effect of the order.— Effect.The natural parents, except when such child is adopted under the provisions of section 159, shall, by such order, be divested of all legal rights and obligations in respect to the child, and the child shall be free from all legal obliga-1145tions of obedience and maintenance with respect to them. Such child shall be to all intents and purposes the child and legal heir of the person adopting him or her, entitled to all the rights and privileges, and subject to all the obligations of a child of such person begotten in lawful wedlock.Executive Order No. 597½.Vol. 37, p. 561; Vol. 42, p. 1006. (E. O. Mar. 22, 1907, § 797; Act Cong. Aug. 24, 1912, c. 390, §§ 2, 9, 37 Stat. 561; E. O. Mar. 12, 1914, § 10; Act Cong. Sept. 21, 1922, c. 370, § 3, 42 Stat. 1006.) Sec. 163. Consent to adoption of illegitimate child.— If theIllegitimate child. child to be adopted is illegitimate, the consent of the father to adoption shall not be required. (E. O. Mar. 22, 1907, § 798; Act Cong. Aug. 24, 1912, c. 390, §§ 2, 9, 37 Stat. 561; E. O. Mar. 12, 1914, § 10; Act Cong. Sept. 21, 1922, c. 370, § 3, 42 Stat. 1006.) Sec. 164. Adoption of illegitimate child by father.— The fatherAdoption by father. of an illegitimate 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. Cross Reference Affecting inheritance, see section 403.*Post*, p. 1179. CHAPTER 9.— GUARDIAN AND WARDGUARDIAN AND WARD. Cross Reference Judicial appointment of guardians, see Code Civil Procedure.*Ante*, p. 1078. Sec. 165. Guardian, what.— A guardian is a person appointed“Guardian,” defined. to take care of the person or property of another. Sec. 166. Ward, what.— The person over whom or over whose“Ward,” defined. property a guardian is appointed, is called his ward. Sec. 166a. Kinds of guardians.— Guardians are either:Kinds of. 1. General; or, 2. Special. Cross References Testamentary guardians, see section 166e. Guardians ad litem, see Code Civil Procedure.*Ante*, p. 1081. Sec. 166b. General guardian, what.— A general guardianGeneral guardian. is a guardian of the person or of all the property of the ward within the Canal Zone, or of both. Sec. 166c. Special guardian, what.— Every other is a specialSpecial guardian. guardian. Sec. 166d. Guardian; appointment by will, and so forth.— 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 written 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. Sec. 166e. Appointment by will or deed of guardian.— Guardian of an insane, etc., person.Appointment by will.A guardian of the person 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 insane or incompetent person be unmarried, or be a person whose marriage has been annulled or dissolved 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. 1146 2. If the insane or incompetent person be married and a person whose marriage has not been annulled or dissolved by divorce, then by the spouse. Sec. 166f. Rules for awarding custody of minor.— 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 considerations: 1. By what appears to be for the best interest of the child in respect to its temporal and its mental and moral welfare; and if the child is of a sufficient age to form an intelligent preference, the court may consider that preference in 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 education and preparation for labor and business, then to the father; 3. Of two persons equally entitled to the custody in other respects, preference is to be given as follows:
(1)To a parent;
(2)To one who was indicated by the wishes of a deceased parent;
(3)To one who already stands in the position of a trustee of a fund to be applied to the child’s support;
(4)To a relative. 4. Any parent who knowingly or willfully abandons, or having the ability so to do, fails to maintain his minor child under the age of fourteen years, forfeits the guardianship of such child. Cross Reference Respective rights of parents, see section 141.*Ante*, p. 1142. Sec. 167. Relation confidential.— Relation confidential.The relation of guardian and ward is confidential, and is subject to the provisions of chapters 49 *Post*, pp. 1258, 1261.and 50 of this code on trusts. Sec. 168. Guardian under direction of court.— Guardian under court’s direction.In the management and disposition of the person or property committed to him, a guardian may be regulated and controlled by the court. Sec. 169. Death of a joint guardian.— Death of joint guardian.On the death of one or two or more joint guardians, the power continues to the survivor until a further appointment is made by the court. Cross Reference Survival of trust, see section 1033.*Post*, p. 1264. Sec. 169a. Removal of guardian.— Removal of guardian.A guardian may be removed by the district court for any of the following causes: 1. For abuse of his trust; 2. For continued failure to perform his duties; 3. For incapacity to perform his duties; 4. For gross immorality; 5. For having an interest adverse to the faithful performance of his duties; 6. For removal from the Canal Zone; 7. In the case of a guardian of the property, for insolvency; or, 8. When it is no longer proper that the ward should be under guardianship. Sec. 169b. Guardian appointed by parent, how superseded.— How guardian appointed by parent is superseded.The power of a guardian appointed by a parent is superseded: 1. By his removal, as provided by section 169a; 2. By the solemnized marriage of the ward; or 3. By the ward’s attaining majority. 1147 Sec. 169c. Suspension of power of guardian.— The powerSuspension of power of guardian. 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. Sec. 169d. Release by ward.— After a wardRelease by 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. Sec. 169e. Guardian’s discharge.— A guardianGuardian’s discharge. appointed by a court is not entitled to his discharge until one year after the ward’s majority. CHAPTER 10.— FOREIGN CORPORATIONS GENERALLYFOREIGN CORPORATIONS GENERALLY. Cross References In respect to corporations engaged in the sale of securities, see sections 180 et seq.*Post*, p. 1149. Fraudulent insolvencies by corporations and other frauds in their management, see sections 396 to 409 of the Criminal Code. Section 170. Application for license to do business; accompanying papers; process agent; filing fee.— Application for business license.Accompanying papers; process agent; fee.No corporation organized under the laws of any State or Territory of the United States or of any foreign country shall do business in the Canal Zone or maintain an office therein until it shall have filed with the executive secretary of the Panama Canal:
(a)An application for a license setting forth the name of the corporation, the names of its officers and directors, and a statement showing the general nature of the business in which it desires to engage in the Canal Zone;
(b)A certified copy of its articles of incorporation, or of its charter, or of the statute or statutes or legislative or executive or governmental acts creating it, in cases 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 law to certify such copy;
(c)An affidavit sworn to by any authorized officer of such corporation which shall State the amount of its authorized capital stock at or within sixty days prior to such filing;
(d)Every corporation must, at the time of filing its application, file in the office of the Executive Secretary a designation of some person residing within the Canal Zone and the place of business or residence of such person upon whom process issued by authority of or under any law of the Canal Zone may be served. With such designation shall be submitted a certified copy of the minutes of the board of directors of such corporation authorizing such designation. Process may be served on the person so designated, or, in the event that such person can not be found at the place designated or in the event that no such person is designated, then on the Executive Secretary of the Panama Canal, or his successor in office, and such service shall be a valid service on such corporation. When the Executive Secretary shall have been served with process as provided herein he shall without delay communicate the same to the corporation concerned at its last known address and no default judgment shall be entered against such corporation in any action in which process is served on the Executive Secretary until at least 60 days after the date of such service; 1148
(e)Corporations licensed under the provisions of this chapter shall also be required to file with the Executive Secretary any amendment of or change in any of the provisions of its original articles of incorporation;
(f)With the application for license there shall also be submitted the sum of $10, which amount shall cover the filing fee and the annual license lee for the remainder of the calendar year during which the license is issued. Sec. 171. Insurance companies to file additional documents and deposits.— Insurance companies to file additional documents and deposits.In addition to the requirements hereinbefore prescribed, insurance companies organized under the laws of any State or Territory of the United States or of any foreign country shall be required to file the following documents:
(a)A certificate of the Commissioner of Insurance or other duly authorized official, showing that the company is authorized to transact business in the State or country under whose laws the company is organized;
(b)A duly certified copy of the last annual statement of the insurance company to the Commissioner of Insurance or other duly authorized official in the State or country where the company is organized;
(c)A deposit with the executive secretary or his successor in office of $10,000 in cash or current marketable securities, which shall be held in trust by the executive secretary for the account of the company, to satisfy any judgment that may be rendered against the company under any insurance policies that it may issue. Sec. 172. Insurance companies to file statement and pay license tax.— Insurance companies to file statement and to pay license tax.Insurance companies licensed under this chapter shall file with the executive secretary between January 1 and March 1 of each year a verified statement showing the business transacted within the Canal Zone by the company during the previous calendar year and a duly certified copy of its annual report to the insurance commissioner of the State, Territory, or country in which the company is organized. Such insurance companies shall pay before March 1 of each year, in lieu of all other taxes save the annual fee provided for in section 174, a license tax equal to 1½ per centum of its net premium receipts in the Canal Zone for the calendar year preceding. Sec. 173. Issuance of license.— Issuance of license.Upon compliance with the foregoing conditions, the Governor of the Panama Canal, if he is satisfied that the business desired to be transacted is proper, legitimate, permissible under the laws of the Canal Zone, and not in conflict with the policy of administering the Canal Zone as an adjunct of the Panama Canal, may issue a license to do business in the Canal Zone. Sec. 174. Annual license fee.— Annual license fee.The right to continue to do business after the period for which the license is issued shall be contingent upon the payment of a license fee of $10, payable in advance, on January 1 of each year. Sec. 175. Transacting business without license, how punished; contracts void.— Punishment for transacting business without license.Any corporation which does business in the Canal Zone without having complied with the provisions of this chapter shall be subject to a fine of not more than $500, and any agent or person acting for such corporation, unless it shall have complied with the provisions of this chapter, shall, upon conviction, be punished Contracts void.as for a misdemeanor. In addition to this penalty, every contract made by or on behalf of any such foreign corporation affecting the liability thereof or relating to property within the Canal Zone shall be held void on its behalf and on behalf of its assigns, but shall be enforceable against it or them. Sec. 176. Same; loss of benefit of limitation laws.— Loss of benefits.Corporations doing business in the Canal Zone which fail to comply with 1149the provisions of this chapter shall not be entitled to the benefit of the laws of the Canal Zone limiting the time for the commencement of civil actions. Sec. 177. License under chapter 11 sufficient.— No corporationLicense under chapter 11 sufficient. licensed under the provisions of chapter 11 of this code shall be required to comply with the provisions of this chapter. Sec. 178. “Corporation” includes joint stock companies.— The“Corporation” to include joint stock company. term “corporation” as used in this chapter shall include joint stock companies. Sec. 179. Revocation or license.— The Governor of The PanamaRevocation of license. Canal is authorized to revoke any license issued hereunder if, upon examination, he shall be satisfied that the operations of the corporation are conducted in an illegal manner, or in a manner contrary to public policy or to the policy of administering the Canal Zone as an adjunct of the Panama Canal. CHAPTER 11.— SECURITIES SALES LAWSECURITIES SALES LAW. Cross References Foreign corporations generally, see section 170 et seq.*Ante*, p. 1147. Fraudulent insolvencies by corporations and other frauds in their management, see sections 396 to 409 of the Criminal Code. Sec. 180. Permit to sell securities.— No company shall sell, orPermits to sell securities. 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 Governor of the Panama Canal a permit authorizing it to do so. Such application shall be in writing and shall be verified. In such application the applicant shall set forth the names and addresses of its officers, the location of its principal office, the name of its Canal Zone representative, an itemized account of its financial condition, the amount and character of its assets and liabilities, a detailed statement of the plan upon which it proposes to transact business, a copy of any prospectus or advertisement, or other description of such securities, then prepared by or for it for distribution or publication, and such additional information concerning the company, its condition and affairs, as the governor may require. If the applicant is a partnership or an unincorporated association or joint stock company, it shall file with its application a copy of its articles of partnership or association, and all other papers pertaining to its organization. If the applicant is a corporation, it shall file with its application a copy of all minutes of any proceedings of its directors or stockholders or members relating to or affecting the issue of such securities, a copy of its articles of incorporation and of its by-laws and of any amendments thereto, and also a certificate, executed by the proper officer of the State, Territory, or country in which such corporation is organized, dated not more than sixty days before the filing of the application, showing that the applicant is authorized to transact business in such State, Territory, or country. Sec. 181. Designation of process agent.— Every company, at theDesignation of process agent. time of filing its application, shall file in the office of the executive secretary a designation of some person residing within the Canal Zone and stating the place of business or residence of such person upon whom process issued by authority of or under any law of the Canal Zone may be served. With such designation shall be submitted a certified copy of the minutes of the board of directors of such company authorizing such designation. Process may be served on the person so designated, or, in the event that such person can not be found at the place designated or in the event that no person is 1150designated, then on the executive secretary of the Panama Canal, or his successor in office, and such service shall be a valid service on such corporation. When the executive secretary shall have been served with process as provided herein he shall without delay communicate the same to the company concerned at its last known address and no default judgment shall be entered against such corporation in any action in which process is served on the executive secretary until at least sixty days after the date of such service. Sec. 181a. Examination of application; issuance and revocation of permit.— Examination of application; issuance and revocation of permit.Upon the filing of such application, it shall be the duty of the governor to examine it, and the other papers and documents filed therewith, or cause the same to be examined, and he may, if he deems it advisable, make or have made a detailed examination, audit, and investigation of the applicant and its affairs. If he finds that the proposed plan of business of the applicant is not unfair, unjust, inequitable, or contrary to the policy of administering the Canal Zone as an adjunct of the Panama Canal, that it intends to transact its business fairly and honestly, and that the securities that it proposes to issue and the methods to be used by it in issuing or disposing of them are not such as, in his opinion, will work a fraud upon the purchaser thereof, the Governor may issue to the applicant a permit authorizing it to issue and dispose of securities, as therein provided, in the Canal Zone. Each such permit shall expire on the thirty-first day of December next following its issuance, unless sooner revoked. Otherwise, he shall deny the application and refuse such permit and notify the applicant in writing of his decision. Every permit shall recite that the issuance thereof is permissive only and does not constitute a recommendation or indorsement of the securities permitted to be sold. The governor may impose such conditions as he may deem necessary to the issue of such securities, and shall have the power to establish such rules and regulations as may be reasonable or necessary to insure the disposition of the proceeds of such securities in the manner and for the purposes provided in such permit, and may, from time to time for cause, amend, alter, or revoke any permit issued by him, or temporarily suspend the rights of the applicant under such permit. Sec. 181b. Certificate of agent or broker.— Certificate of agent or broker.No person or company shall act as an agent or broker, other than for a company holding a permit under the preceding section, until such person or company shall have first applied for and secured from the Governor a certificate, then in effect, authorizing such person or company so to do. Each such certificate shall expire on the thirty-first day of December next after its issuance, unless sooner revoked. To secure such certificate, the applicant shall make and file in the office of the Governor an application therefor in writing, verified by or in behalf of the applicant. In such application the applicant shall set forth, in Additional information required.addition to such other information as may be required by the Governor: 1. The name and address of the applicant, and, if it be a corporation, association, or joint-stock company, the name and address of each of its managing officers and agents, and, if it be a partnership, the name and address of each of the partners; 2. A succinct statement of facts showing that the applicant, and its managing officers and agents, if it be a corporation, or members, if it be a partnership, have a good business reputation; 3. If the applicant is a broker, the general plan and character of the business of the applicant. 1151 If the applicant is a corporation or association it shall file with its application a designation of a process agent, as provided in section 181. Sec. 181c. Examination of application; issuance and revocation of permit.— Examination of application; issuance and revocation of permit.The Governor shall examine such application, or cause the same to be examined, and shall make such further investigation of the applicant and its affairs as he shall deem advisable. If, from such examination, the Governor shall be satisfied that the business reputation of the applicant and of its officers or members, if any, is good, and that the conduct of such business will not conflict with the policy of administering the Canal Zone as an adjunct of the Panama Canal, he may issue such certificate. Otherwise he shall refuse the same and deny the application and notify the applicant of his decision. The Governor may at any time revoke any broker’s or agent’s certificate issued by him if he shall find that the holder thereof is of bad business repute, or had violated any provision of this chapter, or has engaged in, or is about to engage in, any fraudulent transaction, or if he shall find that the conduct of such business conflicts with good policy in the administration of the Canal Zone. Sec. 181d. Report on sale of securities.— Report on sale of securities.Every company or broker authorized under this chapter to sell securities shall thereafter, at such times as they may be required by the Executive Secretary, make and file in the office of the Executive Secretary, a report, setting forth, in such form as the Executive Secretary may prescribe, the securities sold by it under the authority of any permit issued by him, the proceeds derived therefrom, the disposition of such proceeds, and such other information concerning its property, officers, or affairs, relating to or affecting the value of such securities, as the Executive Secretary may require. Sec. 181e. Fees.— Fees.Each company or broker shall, with its application for a permit or certificate, remit the sum of $10, which amount shall cover the filing fee and the animal license fee for the remainder of the calendar year during which the permit or certificate is issued, but no part of such fee shall be returned if the application is disapproved. The annual fee for renewal of a permit or certificate issued hereunder shall be $10, payable in advance on or before January first of each year. Sec. 181f. Penalty for violation.— Penalty for violation.Any company, agent, or broker, which shall directly or indirectly issue or cause to be issued, or solicit the sale of any security contrary to the provisions of this chapter, shall be subject to a fine of not more than $500. In addition to this penalty, every contract made by or on behalf of any such company, agent, or broker affecting the liability thereof shall be void on its behalf and on behalf of its assigns, but shall be enforceable against it or them. Sec. 181g. Definitions.— The following words have in this chapterDefinitions. the signification attached to them in this section, unless otherwise apparent from the context: 1. The word “company” includes all corporations, associations“Company.”, joint-stock companies, and partnerships; 2. The word “security” includes all stocks, bonds,“Security.” or other evidences of property or interest in any company; 3. The word “agent” as used in this chapter means and includes“Agent.” every person or company employed or appointed by a company or broker who shall, within the Canal Zone, either as an employee or otherwise, for a compensation, sell, offer for sale, negotiate for the sale of, or take a subscription for the sale of any security; 1152 4. “Broker.”The word “broker” as used in this chapter includes every person or company, other than an agent, who shall for a commission, in the Canal Zone, engage either wholly or in part in the business of selling, offering for sale, negotiating for the sale of, or otherwise dealing in any security or securities issued by others, or of underwriting any issue of securities, or of purchasing such securities for the purpose of reselling them or of offering them for sale to the public. CHAPTER 12.— NATURE OF PROPERTYNATURE OF PROPERTY. Sec. 182. Property, what.— Property defined.The ownership of a thing is the right of one or more persons to possess and use it to the exclusion of others. In this code, the thing of which there may be ownership is called property. Cross References Personal property, see sections 189 and 238 et seq.*Post*, p. 1158. Real property, see section 186. Sec. 183. In what property may exist.— In what property may exist.There may be ownership of all inanimate things which are capable of appropriation or of manual delivery; of all domestic animals; of all obligations; of such products of labor or skill as the composition of an author, the goodwill of a business, trade-marks and signs, and of rights created or granted by statute. Cross Reference Products of the mind, see sections 240 et seq.*Post*, p. 1158. Sec. 184. Wild animals.— Wild animals.Animals wild by nature are the subjects of ownership, while living, only when on the land of the person claiming them, or when tamed, or taken and held in possession, or disabled and immediately pursued. Sec. 185. Real and personal.— Real and personal property.Property is either: 1. Real or immovable; or, 2. Personal or movable. Sec. 186. Real property.— Real property.Real or immovable property consists of: 1. Land; 2. That which is affixed to land; 3. That which is incidental or appurtenant to land; 4. That which is immovable by law. Cross References Land defined, see section 187. Fixtures, see section 660.*Post*, p. 1218. Sec. 187. Land.— Land defined.Land is the solid material of the earth, whatever may be the ingredients of which it is composed, whether soil, rock, or other substance. Sec. 188. Fixtures.— 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 permanently resting upon it, as in the case of buildings; or permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts, or screws. Cross Reference Ownership of fixtures, see section 248.*Post*, p. 1159. Sec. 189. Personal property.— Personal property.Every kind of property that is not real is personal. 1153 Cross References Accession to personal property, see sections 250 to 258.*Post*, p. 1160. Choses in action, see sections 238 and 230.*Post*, p. 1158. Confusion of goods, see sections 250 to 258.*Post*, p. 1160. Law governing, see section 237.*Post*, p. 1158. Modes of acquisition of, see section 247.*Post*, p. 1159. Products of mind, see sections 240 to 245.*Post*, p. 1158. CHAPTER 13.— OWNERS OF PROPERTYOWNERS OF PROPERTY. Sec. 190. Owner.— All property has an owner, whether that ownerOwner. is the government, and the property public, or the owner an individual, and the property private. Sec. 191. Who may own property.— Any person, whetherWho may own. citizen or alien, may take, hold, and dispose of property within the Canal Zone. Cross Reference Aliens, right to inherit property, see section 420.*Post*, p. 1181. Sec. 192. Aliens inheriting must claim within five years.— Aliens inheriting.If a nonresident alien takes by succession, he must appear and claim the property within five years from the time of succession, or be barred. The property in such case is disposed of as provided in sections 648 et seq., of the Code of Civil Procedure. Cross Reference When and how aliens may Inherit, see section 420.*Post*, p. 1181. CHAPTER 14.— MODIFICATIONS OF OWNERSHIPMODIFICATIONS OF OWNERSHIP. interests in property Section 193. Ownership, absolute or qualified.— The ownershipOwnership. of property is either: 1. Absolute; or, 2. Qualified. Sec. 194. When absolute.— The ownership of property is absoluteWhen absolute. when a single person has the absolute dominion over it, and may use it or dispose of it according to his pleasure, subject only to general laws. Cross References Ownership in what property may exist, see sections 183 and 184.*Ante*, p. 1152. Ownership, termination of, see sections 231 et seq.*Post*, p. 1157. Perpetual interest defined, see section 206.*Post*, p. 1154. Sec. 195. When qualified.— The ownershipWhen qualified. of property is qualified: 1. When it is shared with one or more persons; 2. When the time of enjoyment is deferred or limited; 3. When the use is restricted. Sec. 196. Several ownership, what.— The ownershipSole ownership. of property by a single person is designated as a sole or several ownership. Sec. 197. Ownership of several persons.— The ownership ofOwnership by several persons. 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. 1154 Cross References Community property, see section 202. Interest in common, see sections 200 and 201. Joint interest, see section 193.*Ante*, p. 1153. Partnership interests, see section 199. Sec. 198. Joint interest, what.— Joint interest.A joint interest is one owned by several persons in equal shares, by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenancy, or when granted or devised to executors or trustees as joint tenants. Sec. 199. Partnership interest, what.— Partnership interest.A partnership interest is one owned by several persons, in partnership, for partnership purposes. Sec. 200. Interest in common, what.— Interest in common.An interest in common is one owned by several persons, not in joint ownership or partnership. Cross References See, also, sections 198 and 201. Husband and wife as owners in common, see section 116.*Ante*, p. 1139. Legacy to two or more makes them owners in common, see section 381.*Post*, p. 1175. Sec. 201. What interests are in common.— Interests 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 198, or unless acquired as community property. Cross Reference Interests in common, see sections 198 and 200. Sec. 202. Community property.— Community property.Community property is property acquired by husband and wife, or either, during marriage, when not acquired as the separate property of either or as joint interests or interests in common. Cross Reference See also section 119.*Ante*, p. 1139. Sec. 203. Interests as to time.— Interests as to time.In respect to the time of enjoyment, an interest in property is either: 1. Present or future; and, 2. Perpetual or limited. Sec. 204. Present interest, what.— Present Interest.A present interest entitles the owner to the immediate possession of the property. Sec. 205. Future interest, what.— Future interest.A future interest entitles the owner to the possession of the property only at a future period. Cross References Accumulations as future interests, see sections 224 et seq., and 230.*Post*, pp. 1156, 1157. Conditions upon enjoyment of estates, see sections 217 et seq.*Post*, p. 1155. Terminating future interests, see sections 231 et seq.*Post*, p. 1157. Sec. 206. Perpetual interest, what.— Perpetual interest.A perpetual interest has a duration equal to that of the property. Sec. 207. Limited interest, what.— Limited interest.A limited interest has a duration less than that of the property. Sec. 208. Kinds of future interests.— Kinds of future interests.A future interest is either: 1. Vested; or, 2. Contingent. 1155 Sec. 209. Vested interests.— A future interest is vested when thereVested. 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. Sec. 210. Contingent interests.— A future interest is contingent,Contingent. whilst the person in whom, or the event upon which, it is limited to take effect remains uncertain. Sec. 211. Two or more future interests.— Two or more futureAlternative. 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. Sec. 212. Certain future interests not to be void.— A futureCertain future interests not to be void. interest is not void merely because of the improbability of the contingency on which it is limited to take effect. Sec. 213. Posthumous children.— When a future interest is limitedPosthumous children. to successors, heirs, issue, or children, posthumous children are entitled to take in the same manner as if living at the death of their parent. Cross References Future interests defeated by birth of posthumous child, see section 231.*Post*, p. 1157. Succession by posthumous children, see sections 344, 370, 419.*Post*, pp. 1171, 1174, 1181. Sec. 214. Qualities of expectant estates.— Future interests passQualities of expectant estates. by succession, will, and transfer, in the same manner as present interests. Sec. 215. Same.— A mere possibility, such as the expectancy of anMere possibility not deemed an interest. heir apparent, is not to be deemed an interest of any kind. Cross Reference Mere possibility cannot be transferred, see section 262.*Post*, p. 1161. Sec. 216. What future interests are recognized.— No futureWhat future interests recognized. interest in property is recognized by the law, except such as is defined in this code. conditions of ownershipConditions of ownership. Sec. 217. Fixing the time of enjoyment.— The time whenFixing time of enjoyment. 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 enjoyment is said to be upon condition. Cross Reference Conditional Legacies, see section 376.*Post*, p. 1175. Sec. 218. Conditions.— Conditions are precedent or subsequent.Conditions. The former fix the beginning, the latter the ending, of the right. Cross References Conditional obligations, see sections 430 to 438.*Post*, p. 1183. Conditions concurrent, see section 433.*Post*, p. 1183. Conditions precedent, what are, see sections 377 and 432.*Post*, pp. 1175, 1183. Conditions subsequent, what are, see sections 380 and 434.*Post*, pp. 1175, 1183. Sec. 219. Certain conditions precedent void.— If a conditionConditions precedent, when void. precedent requires the performance of an act wrong of itself, the instrument containing it is so far void, and the right can not 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. 1156 Cross References Conditions precedent, see section 432.*Post*, p. 1183. Unlawful conditions void, see section 437.*Post*, p. 1184. Sec. 220. Conditions restraining marriage void.— Restraining marriage, void.Conditions imposing restraints upon marriage, except upon the marriage of a minor, are void; but this does not affect limitations where the intent was not to forbid marriage, but only to give the use until marriage. Cross Reference Contracts in restraint of marriage, see section 578.*Post*, p. 1201. Sec. 221. Conditions restraining alienation void.— Restraining alienation, void.Conditions restraining alienation, when repugnant to the interest created, are void. Cross Reference Restraints upon alienation, see section 222. restraints upon alienation. Sec. 222. Restraints upon alienation.— Restraints upon alienation.The absolute 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. Sec. 223. Future interests void. which suspend power of alienation.— Future interests void which suspend power of alienation.Every future interest is void in its creation which, by any possibility, may suspend the absolute power of alienation for a longer period than is prescribed in this chapter. Such power of alienation is suspended when there are no persons in being by whom an absolute interest in possession can be conveyed. Accumulations.accumulations Sec. 224. Dispositions of income.— Disposition of income.Dispositions of property to accrue and to be received at any time subsequent to the execution of the instrument creating such disposition, are governed by the rules prescribed in this chapter in relation to future interests. Sec. 225. Accumulations, when void.— When void.All directions for the accumulation of the income of property, except such as are allowed by this chapter, are void. Sec. 226. Accumulation of income.— Accumulations of income.An accumulation of the income of property, for the benefit of one or more persons, may be directed by any will or transfer in writing sufficient to pass the property out of which the fund is to arise, as follows: 1. If such accumulation is directed to commence on the creation of the interest out of which the income is to arise, it must be made for the benefit of one or more minors then in being, and terminate at the expiration of their minority; or, 2. If such accumulation is directed to commence at any time subsequent to the creation of the interest out of which the income is to arise, it must commence within the time in this chapter permitted for the vesting of future interests, and during the minority of the beneficiaries, and terminate at the expiration of such minority. Cross References Annuities and bequest of income, see sections 38311 So in original.
(3)and 391.*Post*, pp. 1176, 1177. Ownership of undisposed accumulations, see section 230.*Post*, p. 1157. 1157 Sec. 227. Other directions, when void in part.— When direction void in part.*Ante*, p. 1166.If in either of the cases mentioned in section 226 the direction for an accumulation is for a longer term than during the minority of the beneficiaries, the direction only, whether separable or not from other provisions of the instrument, is void as respects the time beyond such minority. Sec. 228. Application of income to support, et cetera, of minor.— Application of income to support, etc., of minor.When a minor for whose benefit an accumulation has been directed is destitute of other sufficient means of support and education, the proper court, upon application, may direct a suitable sum to be applied thereto out of the fund. CHAPTER 15.— RIGHTS OF OWNERSRIGHTS OF OWNERS. Section 229. Increase of property.— Increase of property.The owner of a thing owns also all its products and accessions. Cross References Accessions to personal property, see sections 250 et seq.*Post*, p. 1160. Fixtures, see section 248.*Post*, p. 1159. Sec. 230. In certain cases, who entitled to income of property.— Who entitled to income of property in certain cases.When, in consequence of a valid limitation of a future interest, there is a suspension of the power of alienation or of the ownership during the continuation of which the income is undisposed of, and no valid direction for its accumulation is given, such income belongs to the persons presumptively entitled to the next eventual interest. CHAPTER 16.— TERMINATION OF OWNERSHIPTERMINATION OF OWNERSHIP. Sec. 231. Future interests, when defeated.— Future interests, when defeated.A future interest, depending on the contingency of the death of any person without successors, heirs, issue, or children, is defeated by the birth of a posthumous child of such person, capable of taking by succession. Cross Reference Posthumous children, see section 213.*Ante*, p. 1155. Sec. 232. Same.— A future interest may be defeated in any manner or by any act or means which the party creating such interest provided for or authorized in the creation thereof; nor is a future interest, thus liable to be defeated, to be on that ground adjudged void in its creation. Sec. 233. Future interests, when not defeated.— No future interest can be defeated or barred by any alienation or other act of the owner of the intermediate or precedent interest, nor by any destruction of such precedent interest by forfeiture, surrender, merger, or otherwise, except as provided by section 234, or where a forfeiture is imposed by statute as a penalty for the violation thereof. Sec. 234. Same.— No futureWhen not defeated. interest, valid in its creation, is defeated by the determination of the precedent interest before the happening of the contingency on which the future interest is limited to take effect; but should such contingency afterwards happen, the future interest takes effect in the same manner and to the same extent as if the precedent interest had continued to the same period. 1158 CHAPTER 17.— GENERAL DEFINITIONS AFFECTING PROPERTYGENERAL DEFINITIONS AFFECTING PROPERTY. Section 235 Income, what.— Income.The income of property, as the term is used in *Ante*, pp. 1152–1157.chapters 12 to 16 of this code, includes the rents and profits of real property, the interest on money, dividends upon stock, and other produce of personal property. Sec. 236. Time of creation, what.— Time of creation.The delivery of the grant, where a limitation, condition, or future interest is created by grant, and the death of the testator, where it is created by will, is to be deemed the time of the creation of the limitation, condition, or interest *Ante*, pp. 1152–1157.within the meaning of chapters 12 to 16 of this code. CHAPTER 18.— PERSONAL PROPERTY AND PARTICULAR KINDS THEREOFPERSONAL PROPERTY AND PARTICULAR KINDS THEREOF. In general.personal property in general Section 237. By what law governed.— By what law governed.If there is no law to the contrary, in the place where personal property is situated, it is deemed to follow the person of its owner, and is governed by the law of his domicile. Things in action.things in action Sec. 238. Things in action defined.— Defined.A thing in action is a right to recover money or other personal property by a judicial proceeding. Sec. 239. Transfer and survivorship.— Transfer and survivorship.A thing in action arising out of the violation of a right of property, or out of an obligation, may be transferred by the owner. Upon the death of the owner it passes to his personal representatives, except where, in the cases provided in the Code of Civil Procedure, it passes to his devisees or successor in office. Cross References Assignment of debt secured by mortgage carries security, see section 1348.*Post*, p. 1301. Burden of obligation not transferable, see section 443.*Post*, p. 1184. Insurance policy transfer of, see section 1247.*Post*, p. 1289. Literary property is assignable, see section 242.*Post*, p. 1159. Nonnegotiable written contract for payment of money or property transferable by indorsement, see section 445.*Post*, p. 1185. Obligation defined, see section 424.*Post*, p. 1182. Property of any kind may be transferred, see section 261.*Post*, p. 1161. Right arising out of obligation transferable, see section 444.*Post*, p. 1184. Right of repossession can be transferred, see section 263.*Post*, p. 1161. Transfer may be oral, when, see section 264.*Post*, p. 1161. Mere possibility can not be transferred, see section 262.*Post*, p. 1161. Products of the mind.products of the mind Sec. 240. How far the subject of ownership.— Subject to ownership.The author of any product of the mind, whether it is an invention, or a composition in letters or art, or a design, with or without delineation, or other graphical representation, has an exclusive ownership therein, and in the representation or expression thereof, which continues so long as the product and the representations or expressions thereof made by him remain in his possession. 1159 Sec. 241. Joint authorship.— Unless otherwise agreed, a productJoint authorship. of the mind in the production of which several persons are jointly concerned, is owned by them as follows: 1. If the product is single, in equal proportions; 2. If it is not single, in proportion to the contribution of each. Sec. 242. Transfer.— The owner of any product of the mind, or ofTransfer. any representation or expression thereof, may transfer his property in the same. Sec. 243. Effect of publication.— If the owner of a product of theEffect of publication; copyright. mind intentionally makes it public, a copy or reproduction may be made public by any person, without responsibility to the owner, subject to the law of copyright. Cross Reference Copyright law, see section 246. Sec. 244. Subsequent inventor, author, and so forth.— If theSubsequent inventor, author, etc. owner of a product of the mind does not make it public, any other person subsequently and originally producing the same thing has the same right therein as the prior author, which is exclusive to the same extent against all persons except the prior author, or those claiming under him. Sec. 245. Private writings.— Letters and other private communicationsPrivate writings. in writing belong to the person to whom they are addressed and delivered; but they cannot be published against the will of the writer, except by authority of law. patents, trade-marks, and copyrightsPatents, trade-marks, and copyrights. Sec. 246. Patent, trade-mark, and copyright laws extended to zone.— Laws extended to Zone.The patent, trade-mark, and copyright laws of the United States shall have the same force and effect in the Canal Zone as in continental United States, and the District Court of the Canal Zone is given the same jurisdiction in cases arising under such laws as is exercised by a United States district court. Cross Reference Products of the mind, see sections 240 et seq.*Ante*, p. 1158. CHAPTER 19.— MODES IN WHICH PROPERTY MAY BE ACQUIREDACQUISITION OF PROPERTY. Section 247. Property, how acquired.— Property is acquired by:Property, how acquired. 1. Accession; 2. Transfer; 3. Will; or 4. Succession. CHAPTER 20.— ACCESSIONACCESSION. Section 248. Fixtures.— When a person affixes his property toFixtures. the land of another, without an agreement permitting him to remove it, the thing affixed, except as provided in section 249, belongs to the owner of the land, unless he chooses to require the former to remove it. 1160 Cross Reference Fixtures, see section 188.*Ante*, p. 1152. Sec. 249. What fixtures tenant may remove.— Trade, etc., fixtures.Removal by tenant.A tenant may remove from the demised premises, any time during the continuance of his term, anything affixed thereto for the purposes of trade, manufacture, ornament, or domestic use, if the removal can be effected without injury to the premises, unless the thing has, by the manner in which it is affixed, become an integral part of the premises. Sec. 250. Accession by uniting several things.— Accession by uniting several things.When things belonging to different owners have been united so as to form a single thing, and can not be separated without injury, the whole belongs to the owner of the thing which forms the principal part; who must, however, reimburse the value of the residue to the other owner, or surrender the whole to him. Sec. 251. Principal part, what.— What is deemed principal part.That part is to be deemed the principal to which the other has been united only for the use, ornament, or completion of the former, unless the latter is the more valuable, and has been united without the knowledge of its owner, who may, in the latter case, require it to be separated and returned to him, although some injury should result to the thing to which it has been united. Sec. 252. Same.— If neither part can be considered the principal, within the rule prescribed by section 251, the more valuable, or, if the values are nearly equal, the more considerable in bulk, is to be deemed the principal part. Sec. 253. Uniting materials and workmanship.— Uniting materials and workmanship.If one makes a thing from materials belonging to another, the latter may claim the thing on reimbursing the value of the workmanship, unless the value of the workmanship exceeds the value of the materials, in which case the thing belongs to the maker, on reimbursing the value of the materials. Sec. 254. Inseparable Materials.— Inseparable materials.Where one has made use of materials which in part belong to him and in part to another, in order to form a thing of a new description, without having destroyed any of the materials, but in such a way that they can not be separated without inconvenience, the thing formed is common to both proprietors; in proportion, as respects the one, of the materials belonging to him, and as respects the other, of the materials belonging to him and the price of his workmanship. Sec. 255. Materials of several owners.— Materials of several owners.When a thing has been formed by the admixture of several materials of different owners, and neither can be considered the principal substance, an owner without whose consent the admixture was made may require a separation, if the materials can be separated without inconvenience. If they can not be thus separated, the owners acquire the thing in common, in proportion to the quantity, quality, and value of their materials; but if the materials of one were far superior to those of the others, both in quantity and value, he may claim the thing on reimbursing to the others the value of their materials. Sec. 256. Willful trespassers.— Willful trespassers.The foregoing sections of this chapter are not applicable to cases in which one willfully uses the materials of another without his consent; but, in such cases, the product belongs to the owner of the material, if its identity can be traced. Sec. 257. Owner may elect between the thing and its value.— Election between thing and its value.In all cases where one whose material has been used without his knowledge, in order to form a product of a different description. can claim an interest in such product, he has an option to demand either 1161restitution of his material in kind, in the same quantity, weight, measure, and quality, or the value thereof; or where he is entitled to the product, the value thereof in place of the product. Sec. 258. Wrongdoer liable in damages.— One who wrongfullyWrongdoer liable in damages. employs materials belonging to another is liable to him in damages, as well as under the foregoing provisions of this chapter. CHAPTER 21.— TRANSFER OF PROPERTYTRANSFER OF PROPERTY. definition of transfer Sec. 259. Transfer, what.— Transfer is an act of the parties, orTransfer defined. of the law, by which the title to property is conveyed from one living person to another. Cross References Transfer, see sections 260 and 267. Transfer in writing is called a grant, see section 267. Sec. 260. Voluntary transfer.— A voluntary transfer is anVoluntary transfer. executed contract, subject to all rules of law concerning contracts in general; except that a consideration is not necessary to its validity. Cross References Gifts, see section 281 et seq.*Post*, p. 1163. Transfer, see sections 259 and 267. what may be transferred Sec. 261. What may be transferred.— Property of any kind mayWhat may be transferred. be transferred, except as otherwise provided by sections 262 and 263. Sec. 262. Possibility.— A mere possibility, not coupled with anMere possibility. interest, can not be transferred. Cross Reference Mere possibility not deemed an interest, see section 215.*Ante*, p. 1155. Sec. 263. Right of repossession can be transferred.— A right ofRight of repossession can be transferred. repossession for breach of condition subsequent, can be transferred. mode of transferMode of transfer. Sec. 264. When oral.— Orally.A transfer may be made without writing, in every case in which a writing is not expressly required by statute. Cross References What contracts must be in writing, see sections 541 and 600.*Post*, pp. 1197, 1204. Fraudulent Instruments and transfers, see sections 1659 and 1660.*Post*, p. 1338. Sec. 265. When must be in writing.— An interest in an existingIn writing. trust can be transferred only by operation of law, or by a written instrument, subscribed by the person making the transfer, or by his agent. Sec. 266. Transfer by sale, and so forth.— The mode ofBy sale, etc.*Post*, p. 1204. transferring other personal property by sale is regulated by chapter 34 of this code. Sec. 267. Grant, what.— A transfer in writing is called a grant“Grant” defined. or bill of sale. The term “grant,” in this and sections 268 to 280, includes both these instruments. 1162 Cross References Construction of grants, see section 273 et seq.*Ante*, p. 1161. Transfer,11 So in original. see sections 259 and 260. Sec. 268. Delivery necessary.— Delivery necessary.A grant takes effect, so as to vest the interest intended to be transferred, only upon its delivery by the grantor. Cross References Constructive delivery, see section 272. Contract in writing takes effect only from delivery, see section 543.*Post*, p. 1197. Sec. 269. Date.— Date of delivery.A grant duly executed is presumed to have been delivered at its date. Sec. 270. Delivery to grantee is necessarily absolute.— Absolute delivery necessary.A grant can not be delivered to the grantee conditionally. Delivery to him, or to his agent as such, is necessarily absolute, and the instrument takes effect thereupon, discharged of any condition on which the delivery was made. Sec. 271. Delivery in escrow.— Delivery in escrow.A grant may be deposited by the grantor with a third person, to be delivered on performance of a condition, and, on delivery by the depositary, it will take effect. While in the possession of the third person, and subject to condition, it is called an escrow. Sec. 272. Constructive delivery.— Constructive delivery.Though a grant be not actually delivered into the possession of the grantee, it is yet to be deemed constructively delivered in the following cases: 1. Where the instrument is, by the agreement of the parties at the time of execution, understood to be delivered, and under such circumstances that the grantee is entitled to immediate delivery; or 2. Where it is delivered to a stranger for the benefit of the grantee, and his assent is shown, or may be presumed. Interpretation of grants.interpretation of grants Sec. 273. Grants, how interpreted.— Grants are to be interpreted in like manner with contraeis in general, except so far as otherwise provided in this subchapter. Cross References Interpretation of contracts, see sections 546, 547, and 552.*Post*, pp. 1197, 1198. Word “grant” includes bill of sale, see section 267.*Ante*, p. 1161. Sec. 274. Limitations, how controlled.— Limitations, how controlled.A clear and distinct limitation in a grant is not controlled by other words less clear and distinct. Sec. 275. Recitals, when resorted to.— Recitals, resort to.If the operative words of a grant are doubtful, recourse may be had to its recitals to assist the construction. Cross Reference Interpretation of doubtful words, see section 565.*Post*, p. 1199. Sec. 276. Interpretation against grantor.— Interpretation against grantor.A grant is to be interpreted in favor to the grantee, except that a reservation in any grant, and every grant by a public officer or body, as such, to a private party, is to be interpreted in favor of the grantor. Sec. 277. Irreconcilable provisions.— Irreconcilable provisions.If several parts of a grant are absolutely irreconcilable, the former part prevails. 1163 Sec. 278. Meaning of “heirs” and “issue,” in certain remainders.— Meaning of “heirs” and “issue” in certain remainders.Where a future interest is limited by a grant to take effect on remainders. the death of any person without heirs, or heirs of his body, or without issue, or in equivalent words, such words must be taken to mean successors, or issue living at the death of the person named as ancestor. Cross Reference “Heirs” and “Issue,” interpretation of, see section 366.*Post*, p. 1174. effect of transferEffect of transfer. Sec. 279. What title passes.— A transfer vests in the transfereeWhat title passes. all the actual title to the thing transferred which the transferrer then has, unless a different intention is expressed or is necessarily implied. Sec. 280. Incidents.— The transfer of a thing transfers also all itsIncidents. incidents, unless expressly excepted; but the transfer of an incident to a thing does not transfer the thing itself. Cross Reference What passes, see section 1728.*Post*, p. 1346. Sec. 281. Gifts defined.— A gift is a transfer of personal property,Gifts defined. made voluntarily, and without consideration. Cross References Gift as fraud on creditors, see sections 1659 et seq.*Post*, p. 1338. Voluntary transfers, see sections 260 and 1659.*Ante*, p. 1161; *post*, p. 1338. Sec. 282. Gift, how made.— A verbal gift is not valid, unless theHow made. means of obtaining possession and control of the thing are given, nor, if it is capable of delivery, unless there is an actual or symbolical delivery of the thing to the donee. Sec. 283. Gift not revocable.— A gift, other than a gift in viewNot revocable. of death, can not be revoked by the giver. Cross Reference Revoking gifts mortis causa, see section 286. Sec. 284. Gift in view of death, what.— A gift in view of deathGift causa mortis. is one which is made in contemplation, fear, or peril of death, and with intent that it shall take effect only in case of the death of the giver. Cross Reference Revocation, see section 286. Sec. 285. When gift presumed to be in view of death.— A giftWhen gift presumed to be. made during the last illness of the giver, or under circumstances which would naturally impress him with an expectation of speedy death, is presumed to be a gift in view of death. Sec. 286. Revocation of gift in view of death.— A gift in viewRevocation. of death may be revoked by the giver at any time, and is revoked by his recovery from the illness, or escape from the peril, under the presence of which it was made, or by the occurrence of any event which would operate as a revocation of a will made at the same time, but when the gift has been delivered to the donee, the rights of a bona fide purchaser from the donee before the revocation, shall not be affected by the revocation. 1164 Cross Reference Gift inter vivos not revocable, see section 283. Sec. 287. Effect of will upon gift.— Effect of will upon.A gift in view of death is not affected by a previous will; nor by a subsequent will, unless it expresses an intention to revoke the gift. Sec. 288. When treated as legacy.— When treated as legacy.A gift in view of death must be treated as a legacy, so far as relates only to the creditors of the giver. CHAPTER 22.— PROOF AND ACKNOWLEDGMENT OF INSTRUMENTSPROOF AND ACKNOWLEDGMENT OF INSTRUMENTS. Sec. 289. By whom acknowledgments may be taken in Canal Zone.— By whom taken.In Canal Zone.The proof or acknowledgment of any instrument required by law to be proved or acknowledged may be made before the district judge, the clerk of the district court, a magistrate, or before any notary public of the Canal Zone. Sec. 290. Without Canal Zone.— Without Canal Zone.The proof or acknowledgment of an instrument may be made without the Canal Zone, but within the United States, and within the jurisdiction of the officer, before the judge of any court of record or the clerk thereof or before any notary public within any State, Territory, District, or possession of the United States. Sec. 291. By whom taken in foreign country.— Taken in foreign country.If an instrument is one executed in a foreign country, the same may be acknowledged before any diplomatic or consular officer or commercial agent of the United States accredited to such country or before any officer of such foreign country authorized to take acknowledgments, the signature and official character of such officer to be certified by a diplomatic, consular, or commercial official of the United States. Sec. 292. Officers empowered to issue proper certificates.— Power to issue certificates on.The officers authorized to take acknowledgments under sections 289 to 291 are empowered to issue proper certificates of the same. Sec. 293. Requisites for acknowledgment.— Requisites for acknowledgment.The acknowledgment of an instrument must not be taken unless the officer taking it knows or has satisfactory evidence, on the oath or affirmation of a credible witness, that the person making such acknowledgment is the individual who is described in and who executed the instrument; or, if executed by a corporation, that the person making such acknowledgment is the president or secretary of such corporation, or other person who executed it on its behalf. Sec. 294. Officer must indorse certificate.— Officer must indorse.An officer taking the acknowledgment of an instrument must indorse thereon or attach thereto a certificate substantially in the forms hereinafter prescribed. Sec. 295. General form of certificate.— Form.The certificate of acknowledgment, unless it is otherwise in this chapter provided, must be substantially in the following form: “United States of America, Canal Zone, ss. On this __________ day of __________, in the year __________, before me (here insert name and quality of the officer), personally appeared __________, known to me (or proved to me on the oath of __________) to be the person whose name is subscribed to the within instrument, and acknowledged that he (she or they) executed the same”: *Provided, however*, That any acknowledgment taken without the Canal Zone in accordance with the laws of the glace where the acknowledgment is made, shall be sufficient in the anal Zone: *And provided further*, That the certificate of the clerk of a court of record of the county or district where such acknowl-1165edgment is taken, that the officer certifying to the same is authorized by law so to do, and that the signature of the said officer to such certificate is his true and genuine signature, and that such acknowledgment is taken in accordance with the laws of the place where the same is made, shall be prima facie evidence of the facts stated in the certificate of said clerk. Sec. 296. Form of acknowledgment by corporation.— The certificateAcknowledgment by corporation. of acknowledgment of an instrument executed by a corporation must be substantially in the following form: " “United States of America, Canal Zone, ss: “On this __________ day of __________, in the year __________, before me (here insert the name and quality of the officer), personally appeared __________, known to me (or proved to me on the oath of __________) to be the president (or the secretary) of the corporation that executed the within instrument (where, however, the instrument is executed in behalf of the corporation by some one other than the president or secretary insert: known to me (or proved to me on the oath of __________) to be the person who executed the within instrument on behalf of the corporation therein named and acknowledged to me that such corporation executed the same).” " Sec. 297. Form of certificate of acknowledgment by attorney by attorney fact in fact.— The certificateBy attorney in fact. of acknowledgment by an attorney in fact must be substantially in the following form: " “United States of America, Canal Zone, ss: “On this __________ day of __________, in the year __________, before me (here insert the name and quality of the officer), personally appeared __________, known to me (or proved to me on the oath of __________) to be the person whose name is subscribed to the within instrument as the attorney in fact of __________, and acknowledged to me that he subscribed the name of __________ thereto as principal, and his own name as attorney in fact.” " Sec. 298. Officers must affix their signatures.— Officers takingOfficers’ signatures. and certifying acknowledgments, or proof of instruments for record, must authenticate their certificates by affixing thereto their signatures, followed by the names of their offices; also, their seals of office, if by the laws of the State or country where the acknowledgment or proof is taken, or by authority of which they are acting, they are required to have official seals. Sec. 299. Proof of execution, how made.— Proof of the executionProof of execution. of an instrument, when not acknowledged, may be made either: 1. By the party executing it, or either of them; or, 2. By a subscribing witness; or, 3. By other witnesses, in cases mentioned in section 302. Sec. 300. Witness must be personally known to officer.— If byWitness must be personally known to officer. a subscribing witness, such witness must be personally known to the officer taking the proof to be the person whose name is subscribed to the instrument as a witness, or must be proved to be such by the oath of a credible witness. Sec. 301. Witness must prove, what.— The subscribing witnessWitness must prove, what. must prove that the person whose name is subscribed to the instrument as a party is the person described in it, and that such person executed it, and that the witness subscribed his name thereto as a witness. 1166 Sec. 302. Handwriting may be proved, when.— Proof by handwriting.The execution of an instrument may be established by proof of the handwriting of the party and of a subscribing witness, if there is one, in the following cases: 1. When the parties and all the subscribing witnesses are dead; or, 2. When the parties and all the subscribing witnesses are nonresidents of the Canal Zone; or, 3. When the place of their residence is unknown to the party desiring the proof, and can not be ascertained by the exercise of due diligence; or, 4. When the subscribing witness conceals himself, or can not be found by the officer by the exercise of due diligence in attempting to serve the subpoena or attachment; or, 5. In case of the continued failure or refusal of the witness to testify, for the space of one hour, after his appearance. Sec. 303. Evidence of handwriting must prove, what.— What handwriting must prove.The evidence taken under section 302 must satisfactorily prove to the officer the following facts:
(1)The existence of one or more of the conditions mentioned therein; and,
(2)That the witness testifying knew the person whose name purports to be subscribed to the instrument as a party, and is well acquainted with his signature, and that it is genuine; and,
(3)That the witness testifying personally knew the person who subscribed the instrument as a witness, and is well acquainted with his signature, and that it is genuine; and,
(4)The place of residence of the witness. Sec. 304. Certificate of proof.— Certificate of proof.An officer taking proof of the execution of any instrument must, in his certificate indorsed thereon or attached thereto, set forth all the matters required by law to be done or known by him, or proved, before him on the proceeding, together with the names of all the witnesses examined before him, their places of residence respectively, and the substance of their testimony. Sec. 305. Officers authorized to do certain things.— Authority of officers.Officers authorized to take the proof of Instruments are authorized in such proceedings: 1. To administer oaths or affirmations; 2. To employ and swear interpreters; 3. *Ante*, p. 1111.To issue subpoenas, as prescribed in section 1156 of the Code of Civil Procedure; 4. *Ante*, p. 1112.To punish for contempt, as prescribed in sections 1160, 1162, and 1163, of the Code of Civil Procedure. *Ante*, p. 1112.The civil damages and forfeiture to the party aggrieved are prescribed in section 1161 of the Code of Civil Procedure. Sec. 306. When instrument is improperly certified, party may have action to correct error.— Correction of improper certificate.When the acknowledgment or proof of the execution of an instrument is properly made, but defectively certified, any party interested may nave an action in the district court to obtain a judgment correcting the certificate. Sec. 307. Judgment of proof of an instrument.In certain cases, parties interested may obtain judgment of proof of an instrument.— Any person interested under an instrument entitled to be proved for record, may institute an action in the district court against the proper parties to obtain a judgment proving such instrument. Sec. 308. Effect of judgment in such action.— Effect.A certified copy of the judgment in a proceeding instituted under section 306 or section 307, showing the proof of the instrument, and attached thereto, entitled such instrument to record, with like effect as if acknowledged. 1167 Sec. 309. Instruments heretofore made to be governed by then existing laws.— Execution, etc., provisions not retroactive.The legality of the execution, acknowledgment, proof, form, or record of any instrument made before this code goes into effect, executed, acknowledged, proved, or recorded is not affected by anything contained in this chapter, but depends for its validity and legality upon the laws in force when the act was performed. Sec. 310. Deeds, and so forth, affecting land in District of Columbia or any Territory of United States.— Deeds, etc., affecting lands in District of Columbia or Territories.Deeds and other instruments affecting land situate in the District of Columbia or any Territory of the United States may be acknowledged in the Canal Zone before any notary public or judge, appointed therein by proper authority, or by any officer therein who has ex officio the powers of a notary public: *Provided*, That the certificate by such notary in the*Proviso*. Canal Zone shall be accompanied by the certificate of the governor or acting governorCertificate of governor. to the effect that the notary taking said acknowledgment was in fact the officer he purported to be; and any deeds or other instruments affecting lands so situate, so acknowledged since January 1, 1905, and accompanied by such certificate shall have the same effect as such deeds or other instruments hereafter soVol. 34, p. 552. acknowledged and certified. (Act Cong. June 28, 1906, c. 3585, 34 Stat. 552.) CHAPTER 23.— EXECUTION AND REVOCATION OF WILLSEXECUTION AND REVOCATION OF WILLS. Sec. 311. Who may make a will.— Every person over the age ofCapacity to make. eighteen years, of sound mind, may, by last will, dispose of all his estate, and such estate not disposed of by will is succeeded to as provided in chapter 26 of this code, being chargeable in both cases with the payment of all the decedent’s debts, as provided in the Code of Civil Procedure. Cross References Disposition of property in case of intestacy, see section 401 et seq.*Post*, p. 1178. Effect of marriage of man on his will, see section 335.*Post*, p. 1170. Validity of will, see section 315. Wills of married women, see section 313. Wills of unmarried women revoked by marriage, see section 336.*Post*, p. 1170. Sec. 312. Will, or part thereof, procured by fraud.— A will, orWill procured by fraud. 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. Cross References Revocation of will, see section 329.*Post*, p. 1169. Undue influence as affecting contracts, see section 505.*Post*, p. 1193. Sec. 313. Will of married woman.— A married woman mayWill of married woman. dispose of all her separate estate by will, without the consent of her husband, and may alter or revoke the will in like manner as if she were single. Her will must be executed and proved in like manner as other wills. Sec. 314. What may pass by will.— Every interest in property, toWhat may pass by will. which heirs, husband, widow, or next of kin might succeed, may be disposed of by will, except as otherwise provided in sections 417 and 418. Sec. 315. Written will, how to be executed.— Every will, otherExecution of will. than a nuncupative will, must be in writing; and every will, other than an olographic will, and a nuncupative will, must be executed and attested as follows: 1168 1. It must be subscribed at the end thereof by the testator himself, or some person in his presence and by his direction must subscribe his name thereto; 2. The subscription must be made in the presence of the attesting witnesses, or be acknowledged by the testator to them to have been made by him or by his authority; 3. The testator must, at the time of subscribing or acknowledging the same, declare to the attesting witnesses that the instrument is his will; and, 4. There must be two attesting witnesses, each of whom must sign the same as a witness, at the end of the will, at the testator’s request and in his presence. Cross References Conjoint or mutual will, see section 318. Nuncupative will, see sections 325 et seq.*Post*, p. 1169. Olographic will, see section 316. Witness to add residence, see section 317. Sec. 316. Definition of an olographic will.— “Olographic will,” defined.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 the Canal Zone, and need not be witnessed. Sec. 317. Witness to add residence.— Witness to add residence.A witness to a written will must write, with his name, his place of residence; and a person who subscribes the testator’s name, by his direction, must write his own name as a witness to the will. But a violation of this section does not affect the validity of the will. Sec. 318. Mutual will.— Mutual will.A conjoint or mutual will is valid, but it may be revoked by any of the testators in like manner with any other will. Sec. 319. Competency of subscribing witness.— Competency of witness.If the subscribing witnesses to a will are competent at the time of attesting its execution, their subsequent incompetency, from whatever cause it may arise, does not prevent the probate and allowance of the will, if it is otherwise satisfactorily proved. Sec. 320. Gifts to subscribing witnesses void; creditors competent witnesses.— Gifts to subscribing witness void; creditors competent witnesses.All beneficial legacies and gifts whatever, made or given in any will to a subscribing witness thereto, are void, unless there are two other competent subscribing witnesses to the same; but 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. Sec. 321. Subscribing witness entitled to his share by succession.— Subscribing witness entitled to his share by succession.If a witness, to whom any beneficial legacy or gift, void by section 320, is made, would have been entitled to any share of the estate of the testator, in case the will should not be established, he succeeds to so much of the share as would be distributed to him, not exceeding the bequest made to him in the will, and he may recover the same of the other legatees named in the will, in proportion to and out of the parts bequeathed to them. Sec. 322. Will made out of the Canal Zone.— Foreign wills.A will made out of the Canal Zone which might be proved and allowed by the laws of the state or country in which it was made, may be proved, allowed, and recorded in the Canal Zone, and shall have the same effect as if Executive Orders Executive Orders Nos. 597½, 1898.Vol. 37, p. 561; Vol. 42, p. 1006.executed according to the laws of the Zone. ((E. O. Mar. 22, 1907, vol. § 670;) Act Cong. Aug. 24, 1912, c. 390, §§ 2, 9, 37 Stat. 561; E. O. Mar. 12, 1914, § 10; Act Cong. Sept. 21, 1922, c. 370, § 3, 42 Stat. 1006.) 1169 Cross Reference Probate of foreign wills, see the Code of Civil Procedure.*Ante*, p. 1026. Sec. 323. Will made here by alien.— A will made within theWill made by alien. Canal Zone by a Citizen or subject of another State or country, which is executed in accordance with the law of the state or country of which he is a citizen or subject, and which might be proved and allowed by the law of his own state or country, may be proved, allowed, and recorded in the Canal Zone, and shall have the same effect as if executed according to the laws of the Zone.Executive Order No. 597½.Vol. 37, p. 561; Vol. 42, p. 1006. ((E. O. Mar. 22, 1907, § 671;) Act Cong. Aug. 24, 1912, c. 390, §§ 2, 9, 37 Stat. 561; E. O. Mar. 12, 1912, § 10; Act. Cong. Sept. 21, 1922, c. 370, § 3, 42 Stat. 1006.) Sec. 324. Republication by codicil.— The execution of a codicil,Republication by codicil. referring to a previous will, has the effect to republish the will, as modified by the codicil. Sec. 325. Nuncupative will, how to be executed.— A nuncupativeNuncupative will, how executed. will is not required to be in writing, nor to be declared or attested with any formalities. Cross Reference Probating nuncupative wills, see sections 326 and 327. Sec. 326. Requisites of valid nuncupative will.— To make aRequisites of. nuncupative will valid, and to entitle it to be admitted to probate, the following requisites must be observed:
(1)The estate bequeathed must not exceed in value the sum of $1,000.
(2)It must be proved by two witnesses who were present at the making thereof, one of whom was asked by the testator, at the time, to bear witness that such was his will, or to that effect.
(3)The decedent must, at the time, have been in actual military service in the field, or doing duty on shipboard at sea, and in either case in actual contemplation, fear, or peril of death, or the decedent must have been, at the time, in expectation of immediate death from an injury received the same day. Sec. 327. Proof of nuncupative wills.— No proof must be receivedProof. of any nuncupative will, unless it is offered within six months after speaking the testamentary words, nor unless the words, or the substance thereof, were reduced to writing within thirty days after they were spoken. Sec. 328. Probate of nuncupative wills.— No probate of any nuncupativeProbate of. will must be granted for fourteen days after the death of the testator, nor must any nuncupative will be at any time proved, unless the testamentary words, or the substance thereof, be first committed to writing, and process issued to call in the widow, or other persons interested, to contest the probate of such will, if they think proper. Sec. 329. Written will, how revoked.— Except in the cases inRevocation. this chapter mentioned, no written will, nor any part thereof, can be revoked or altered otherwise than: 1. By a written will, or other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which a will should be executed by such testator; or, 2. By being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by some person in his presence and by his direction. Sec. 330. Evidence of revocation.— When a will is canceled orEvidence of. destroyed by any other person than the testator, the direction of the 1170testator, and the fact of such injury or destruction, must be proved by two witnesses. Sec. 331. Revocation of duplicate.— When in duplicate.The revocation of a will, executed in duplicate, may be made by revoking one of the duplicates. Sec. 332. Revocation by subsequent will.— By subsequent will.A prior will is not revoked by a subsequent will, unless the latter contains an express revocation, or provisions wholly inconsistent with the terms of the former will; but in other cases the prior will remains effectual so far as consistent with the provisions of the subsequent will. Sec. 333. Antecedent not revived by revocation of subsequent will.— Antecedent not revived by revocation of subsequent will.If, after making a will, the testator duly makes and executes a second will, the destruction, cancellation, or revocation of such second will does not revive the first will, unless it appears by the terms of such revocation that it was the intention to revive and give effect to the first will, or unless, after such destruction, cancellation, or revocation, the first will is duly republished. Sec. 334. Revocation by marriage and birth of issue.— By marriage and birth of issue.If, after having made a will, the testator marries, and has issue of such marriage, born either in his lifetime or after his death, and the wife or issue survives him, the will is revoked, unless provision has been made for such issue by some settlement, or unless such issue are provided for in the will, or in such way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of such revocation can be received. Sec. 335. Effect of marriage of man on his will.— Will as affected by marriage of man.If, after making a will, 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 show an intention not to make such provision; and no other evidence to rebut the presumption of revocation can be received. Sec. 336. Marriage of woman on her will.— Of woman.If, after making a will, the testatrix marries, and the husband survives the testatrix, the will is revoked, unless provision has been made for him by marriage contract, or unless he is provided for in the will, or in such way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of revocation can be received. Sec. 337. Revocation by marriage and birth of issue.— Revocation by marriage and birth of issue.If, after making a will, the testatrix marries, and has issue of said marriage, born either in her lifetime or after her death, and the husband or issue survives her, the will is revoked, unless provision has been made for such issue by some settlement, or unless such issue are provided for in the will, or in such way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of such revocation can be received. Sec. 338. Contract of sale not revocation.— Contract of sale not revocation.An agreement made by a testator, for the sale or transfer of property disposed of by a will previously made, does not revoke such disposal; but the property passes by the will, subject to the same remedies on the testator’s agreement, for a specific performance or otherwise against the legatees, as might be had against the testator’s successors, if the same had passed by succession. Sec. 339 Mortgage not revocation of will.— Mortgage.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 legacies therein contained must pass, subject to such charge or encumbrance. 1171 Sec. 340. Transfer, when not a revocation.— A transfer,Transfer, when not a revocation. 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. Cross References Ademption of legacies, see section 382.*Post*, p. 1175. Revocation, see sections 341 and 342. Sec. 341. When it is a revocation.— If the instrument by which anWhen a revocation. alteration is made in the testator’s interest in a thing previously disposed of by his will expresses his intent that it shall be a revocation, or if it contains provisions wholly inconsistent with the terms and nature of the testamentary disposition, it operates as a revocation thereof, unless such inconsistent provisions depend on a condition or contingency by reason of which they do not take effect. Sec. 342. Revocation of codicils.— The revocation of a will revokesRevocation of codicils. all its codicils. Sec. 343. Application of provisions as to revocations.— The provisionsApplication of provisions as to revocations. of this chapter 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. Sec. 344. After-born child, unprovided for, to succeed.— WheneverAfter-born child. a testator has a child born after the making of his will, either in his lifetime or after his death, and dies leaving such child unprovided for by any settlement, and neither provided for nor in any way mentioned in his will, the child succeeds to the same portion of the testator’s property that he would have succeeded to if the testator had died intestate. Cross Reference Succession by posthumous children, see sections 213, 370, and 419.*Ante*, p. 1155; *post*, pp. 1174, 1181. Sec. 345. Children or issue of children of testator unprovided for by his will.— Children, etc., unprovided for.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 section 344. Sec. 346. Share of after-born child, out of what part of estate to be paid.— After-born children, etc., payment of share.When any share of the estate of a testator is assigned to a child born after the making of a will, or to a child, or the issue of a child, omitted in the will, as hereinbefore mentioned, the same must first be taken from the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken from all the legatees, in proportion to the value they may respectively receive under the will, unless the obvious intention of the testator in relation to some specific bequest, or other provision in the will, would thereby be defeated; in such case, such specific legacy or provision may be exempted from such apportionment, and a different apportionment, consistent with the intention of the testator, may be adopted. Sec. 347. Advancement during lifetime of testator.— Effect of advancements to.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 sections 344 to 346. 1172 Cross Reference Advancements in cases of intestacy, see sections 411 to 415.*Post*, p. 1180. Sec. 348. Distribution of estate when legatee dies before testator.— When legatee dies before testator.When any estate is bequeathed to any child or other relation of the testator, and the legatee dies before the testator, leaving lineal descendants, or any such child or other relation is named in a will as a 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 legatee would have done had he survived the testator. Cross References “By right of representation,” term defined, see section 419.*Post*, p. 1181. Death of legatee, legacy fails when, see sections 374 and 375.*Post*, p. 1175. Sec. 349. Restriction on bequests for charitable uses; exceptions.— Bequests for charitable purposes.No estate shall be bequeathed 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 legacy shall be valid: *Provisos*.Limitation on amount.*Provided*, that no such bequest shall collectively exceed one-third of the estate of the testator, leaving legal heirs, and in such case a pro rata deduction from such 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 Exception.legatee, next of kin, or heirs, according to law: *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 grand-child, or when all of such heirs shall have by writing, executed at least six months prior to his death, waived the restriction contained herein. Sec. 350. Execution of prior wills not affected.— Execution provisions not retroactive.The provisions of this chapter do not impair the validity of the execution of any will made before it takes effect. CHAPTER 24.— INTERPRETATION OF WILLS, AND EFFECT OF VARIOUS PROVISIONSINTERPRETATION OF WILLS, AND EFFECT OF VARIOUS PROVISIONS. Sec. 351. Testator’s intention to be carried out.— Intention of testator.A will is to be construed according to the intention of the testator. Where his intention can not have effect to its full extent, it must have effect as far as possible. Cross References Construction of will made before code went into effect, see section 383.*Post*, p. 1175. Declaration of testator as evidence, see section 352. Intention of testator, see section 395.*Post*, p. 1177. Sec. 352. Intention to be ascertained from the will.— To be ascertained from will.In case of uncertainty arising upon the face of a will, as to the application of any of its provisions, the testator’s intention is to be ascertained from the words of the will, taking into view the circumstances under which it was made, exclusive of his oral declarations. 1173 Cross Reference Testator’s declarations as to intention, see section 371.*Post*, p. 1174. Sec. 353. Rules of interpretation.— In interpreting a will,Rules of interpretation. subject to the law of the Canal Zone, the rules prescribed by the following sections of this chapter are to be observed, unless an intention to the contrary clearly appears. Sec. 354. Several Instruments are to be taken together.— Several instruments construed as one.Several testamentary Instruments, executed by the same testator, are to be taken and construed together as one instrument. Sec. 355. Harmonizing various parts.— All the parts of a willHarmonizing various parts. 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. Sec. 356. In what case bequest not affected.— A clear and distinctCase where bequest not affected. bequest can not be affected by an11 So in original. reasons assigned therefor, or by any other words not equally clear and distinct, or by inference or argument from other parts of the will, or by an inaccurate recital of or reference to its contents in another part of the will. Cross Reference Intention of testator, see sections 351 et seq.*Post*, p. 1172. Sec. 357. When ambiguous or doubtful.— Where the meaningAmbiguous or doubtful provisions. of any part of a will is ambiguous or doubtful, it may be explained by any reference thereto, or a recital thereof, in another part of the will. Sec. 358. Words taken in ordinary sense.— The words of a willConstruction of words. are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be collected, and that other can be ascertained. Sec. 359. Words to receive an operative construction.— TheTo receive an operative construction. words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will tender any of the expressions inoperative. Cross Reference Harmonizing various parts, see section 355. Sec. 360. Intestacy to be avoided.— Of two modes of interpretingIntestacy to be avoided. a will, that is to be preferred which will prevent a total intestacy. Sec. 361. Effect of technical words.— Technical words in a willTechnical words. are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that the will was drawn solely by the testator, and that he was unacquainted with such technical sense. Cross Reference Technical words, how construed, see sections 11 and 556.*Ante*, p. 1124; post, p. 1198. Sec. 362. Technical words not necessary.— Technical words areTechnical words not necessary. not necessary to give effect to any species of disposition by a will. Sec. 363. Power to devise, how executed by terms of will.— Power to devise; how executed.Property embraced in a power to devise, passes by a will purporting to devise all the property of the testator. Sec. 364. Bequest of all of property.— Bequest of all of property.A bequest of all of the property. testator’s property, in express terms, or in any other terms denoting such intent, passes all the property which he was entitled to dispose of by will at the time of his death. 1174 Cross Reference General and specific legacies, see section 384.*Post*, p. 1176. Sec. 365. Residuary clause.— Residuary clause.A bequest of the residue of the testator’s 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. Sec. 366. “Heirs,” “Relatives,” “issue,” “descendants,” etc.— “Heirs,” “relatives,” etc.A testamentary disposition to “heirs,” “relations,” “nearest relations,” “representatives,” “legal representatives,” or “personal representatives,” or “family,” “issue,” “descendants,” “nearest” of “next of kin” or 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 chapter 26 of this code on succession. Cross Reference “Issue,” interpretation of, see section 278.*Ante*, p. 1163. Sec. 367. Words of donation and of limitation.— Words of donation, etc.The terms mentioned in section 366 are used as words of donation, and not of limitation, when the property is given to the person so designated, directly, and not as a qualification of an estate given to the ancestor of such person. Sec. 368. To what time words refer.— Time to which words refer.Words in a will referring to death or survivorship, simply, relate to the time of the testator’s death, unless possession is actually postponed, when they must be referred to the time of possession. Sec. 369. Bequest to a class.— Bequests to a class.A testamentary disposition to a class includes every person answering the description at the testator’s death; but when the possession is postponed to a future period, it includes also all persons coming within the description before the time to which possession is postponed. Cross Reference Posthumous children, see section 370. Sec. 370. When child born after testator’s death takes under will.— Unborn child of class.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. Cross References Child en ventre sa mere, see section 18.*Ante*, p. 1125. Succession by posthumous children, see sections 213, 344, and 419.*Ante*, pp. 1155, 1171; *post*, p. 1181. Sec. 371. Mistakes and omissions.— Mistakes and omissions.When, applying a will, it is found that there is an imperfect description, or that no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence; but evidence of the declarations of the testator as to his intentions can not be received. Cross Reference Evidence of intention, see section 352.*Ante*, p. 1172. Sec. 372. When bequests vest.— When bequests vest.Testamentary dispositions, including bequests to a person on attaining majority, are presumed to vest at the testator’s death. 1175 Sec. 373. When can not be divested.— A testamentary disposition,When can not be divested. when vested, can not be divested unless upon the occurrence of the precise contingency prescribed by the testator for that purpose. Cross Reference Bequest to a class, see section 369. Sec. 374. Death of a legatee.— If a legatee dies during theDeath of legatee.*Ante*, p. 1172. lifetime of the testator, the testamentary disposition to him fails, unless an intention appears to substitute some other in his place, except as provided in section 348. Sec. 375. Interests in remainder are not affected.— The deathInterests in remainder not affected. of a legatee of a limited interest before the testator’s death does not defeat the interests of persons in remainder, who survive the testator. Sec. 376. Conditional bequests.— A conditional dispositionConditional bequest. is one which depends upon the occurrence of some uncertain event, by which it is either to take effect or be defeated. Cross References Conditions of ownership, see section 217 et seq.*Ante*, p. 1155. Conditional obligations, see sections 430 to 438.*Post*, p. 1183. Sec. 377. Condition precedent, what.— A condition precedentCondition precedent. in a will is one which is required to be fulfilled before a particular disposition takes effect. Cross Reference Conditions precedent, what are, see sections 218 and 432.*Ante*, p. 1155; *post*, p. 1183. Sec. 378. Effect of condition precedent.— Where a testamentaryEffect of. disposition is made upon a condition precedent, nothing vests until the condition is fulfilled, except where such fulfillment is impossible, in which case the disposition vests, unless the condition was the sole motive thereof, and the impossibility was unknown to the testator, or arose from an unavoidable event subsequent to the execution of the will. Sec. 379. Conditions precedent, when deemed performed.— Performance.A condition precedent in a will is to be deemed performed when the testator’s intention has been substantially, though not literally, complied with. Sec. 380. Conditions subsequent, what.— A condition subsequentCondition subsequent. is where an estate or interest is so given as to vest immediately, subject only to be divested by some subsequent act or event. Cross Reference Conditions subsequent, see sections 218 and 434.*Ante*, p. 1155; *post*, p. 1183. Sec. 381. Legatees take as tenants in common.— A legacyLegatees take as tenants in common. given to more than one person vests in them as owners in common. Sec. 382. Advancements, when ademptions.— AdvancementsAdvancement, when ademptions. or gifts are not to be taken as ademptions of general legacies, unless such intention is expressed by the testator in writing. Cross Reference Advancement In cases of Intestacy, see sections 411 to 415.*Post*, p. 1180. Sec. 383. Construction of prior wills not affected.— Construction provisions not retroactive.The provisions of this chapter do not affect the construction of any will executed before it takes effect. 1176 CHAPTER 25.— GENERAL PROVISIONS RELATING TO WILLSGENERAL PROVISIONS RELATING TO WILLS. Sec. 384. Nature and designation of legacies.— Nature and designation to legacies.Legacies are distinguished and designated, according to their nature, as follows: 1. Specific.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 can not be had to the other property of the testator; 2. Demonstrative.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 find or property fails, in whole or in part, resort may be had to the general assets, as in case of a general legacy; 3. Annuity.An annuity is a bequest of certain specified sums periodically; if the fund or property out of which they are payable fails, resort may be had to the general assets, as in case of a general legacy; 4. Residuary.A residuary legacy embraces only that which remains after all the bequests of the will are discharged; General.5. All other legacies are general legacies. Cross Reference Legacy and annuities, when due, see section 393.*Post*, p. 1177. Sec. 385. Order of resort to estate for debts.— 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:
(1)The property which is expressly appropriated by the will for the payment of the debts;
(2)Property not disposed of by the will;
(3)Property which is devised or bequeathed to a residuary legatee;
(4)Property which is not specifically devised or bequeathed; and,
(5)All other property ratably. Before any debts are paid, the expenses of the administration and the allowance to the family must be paid or provided for. Sec. 386. Same for legacies.— Legacies.The property of a testator, except as otherwise specially provided in this code and the Code of Civil Procedure, must be resorted to for the payment of legacies, in the following order:
(1)The property which is expressly appropriated by the will for the payment of the legacies.
(2)Property not disposed of by the will.
(3)Property which is devised or bequeathed to a residuary legatee.
(4)Property which is specifically devised or bequeathed. Cross Reference Payment of legacies, when legacies are due, see section 395.*Post*, p. 1177. Sec. 387. Legacies, how charged with debts.— Legacies, how charged with debts.Legacies to husband, widow, or kindred of any class are chargeable only after legacies to persons not related to the testator. Sec. 388. Abatement.— Abatement.Abatement takes place in any class only as between legacies of that class, unless a different intention is expressed in the will. Sec. 389. Specific legacies.— Specific legacies.In a specific legacy, the title passes by the will, but possession can only be obtained from the personal 1177representative; and he may be authorized by the district court to sell the property devised and bequeathed in the cases herein provided. Cross Reference How title passes in cases of intestacy, see section 402.*Post*, p. 1178. Sec. 390. Possession of legatees.— Where specific legacies are forPossession of legacies. life only, the first legatee must sign and deliver to the second legatee, or, if there is none, to the personal representative, an inventory of the property, expressing that the same is in his custody for life only, and that, on his decease, it is to be delivered and to remain to the use and for the benefit of the second legatee, or to the personal representative, as the case may be. Sec. 391. Bequest of interest.— In case of a bequest of the interestBequest of income, etc. or income of a certain sum or fund, the income accrues from the etc testator’s death. Cross References Accumulations, see sections 224 et seq.*Ante*, p. 1156. Annuities commence at testator’s death, see section 393. Sec. 392. Satisfaction.— A legacy, or a gift in contemplation,Satisfaction. fear, or peril of death, may be satisfied before death. Sec. 393. Legacies, when due.— Legacies are due and deliverableLegacies, when due. at the expiration of one year after the testator’s decease. Annuities commence at the testator’s decease. Sec. 394. Interest.— Legacies bear interest from the time whenInterest on legacy. they are due and payable, except that legacies for maintenance, or to the testator’s widow, bear interest from the testator’s decease. Sec. 395. Construction of these rules.— Sections 391 to 394Construction of rules. are in all cases to be controlled by a testator’s express intention. Cross Reference Intention of testator, see section 351.*Ante*, p. 1172. Sec. 396. Executor according to the tenor.— Where it appears,Executor according to the tenor. by the terms of a will, that it was the intention of the testator to commit the execution thereof and the administraion11 So in original. of his estate to any person as executor, such person, although not named executor, is entitled to letters testamentary in like manner as if he had been named executor. Sec. 397. Power given executor to appoint is invalid.— Power of executor to appoint invalid.An authority to an executor to appoint an executor is void. Sec. 398. Executor not to act till qualified.— No person has anyExecutor not to act until qualified. power, as an executor, until he qualifies, except that, before letters have been issued, he may pay funeral charges and take necessary measures for the preservation of the estate. Cross Reference Payment of debts, see section 385.*Ante*, p. 1176. Sec. 399. Liability of beneficiaries for testator’s obligations.— Liability of beneficiaries for testator’s obligations.Those to whom property is given by will are liable for the obligations of the testator in the cases and to the extent prescribed by the Code of Civil Procedure. 1178 CHAPTER 26.— SUCCESSIONSUCCESSION. Sec. 400. Succession defined.— Defined.Succession is the coming in of another to take the property of one who dies without disposing of it by will. Sec. 401. Intestate’s estate, to whom passes.— Intestate’s estate, to whom passes.The property of one who dies without disposing of it by will, passes to the heirs of the intestate, subject to the control of the district court, and to the possession of any administrator appointed by that court, for the purposes of administration. Sec. 402. Succession to and distribution of estate of deceased person.— Succession to and distribution of estate of deceased person.When any person having title to any estate not otherwise limited by marriage contract, dies without disposing thereof 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 manner: 1. When husband or wife and issue survive.If decedent leaves a surviving husband or wife, and only one child, or the lawful issue of one child, in equal shares to the surviving husband, or wife and child, or issue of such child. If the decedent leaves a surviving husband or wife, and more than one child living, or one child living and the lawful issue of one or more deceased children, one third to the surviving husband or wife, and the remainder in equal shares to his children and to the lawful issue of any deceased child, by right of representation; but if there is no child of decedent living at his death, the remainder goes to all of his lineal descendants; and if all of the descendants are in the same degree of kindred to the decedent, they share equally, otherwise they take according to the right of representation. If the decedent leaves no surviving husband or wife, but leaves issue, the whole estate goes to such issue; and if such 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. Surviving husband or wife but no issue.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 grandchildren of any deceased brother or sister by right of representation. If the decedent leaves no issue, nor husband nor wife, the estate must go to his father and mother in equal shares, or if either is dead then to the other; 3. When property goes to brothers, sisters, etc.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. When whole estate to husband or wife.If the decedent leaves a surviving husband or wife, and neither issue, father, mother, brother, sister, nor the children or grandchildren of a deceased brother or sister, the whole estate goes to the surviving husband or wife; 5. Next of kin.If there is neither issue, husband, wife, father, nor mother, brother, nor sister, the estate must go to the next of kin, in equal degree, excepting that, when there are two or more collateral kindred, in equal degree, but claiming through different ancestors, those who claim through the nearest ancestor must be preferred to those claiming through an ancestor more remote; 6. Interest of unmarried minor child, deceased.If decedent leaves several children, or one child and the issue of one or more children, and any such surviving child dies 1179under 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 havingWhen all other children dead. 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,Distribution when deceased a widow or widower. and the estate, or any portion thereof, was common property of such widower, decedent and his or her deceased spouse, while such spouse was living, such property goes in equal shares to the children of such deceased spouse and to the descendants of such children by right of representation, and if none, then one half of such common property goes to the father and mother of such decedent in equal shares, or to the survivor of them if either be dead, or if both be dead, then in equal shares to the brothers and sisters of such decedent and to the descendants of any deceased brother or sister by right of representation, and the other half goes to the father and mother of such deceased spouse in equal shares, or to the survivor of them if either be dead, or if both be dead, then in equal shares to the brothers and sisters of such deceased spouse and to the descendants of any deceased brother or sister by right of representation. If the estate, or any portion thereof, was separate property ofWhen estate separate property of deceased spouse. such deceased spouse, while living, and came to such decedent from spouse. such spouse by descent or bequest, such property goes in equal shares to the children of such spouse and to the descendants of any deceased child by right of representation, 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 deceased brother or sister by right of representation. 9. If the decedent leaves no husband, wife, or kindred, and thereEscheat, when no heirs. are no heirs to take his estate or any portion thereof, under subdivision 8 of this section, the same escheats to the United States. Sec. 403. Illegitimate children to inherit in certain events.— Illegitimate children as heirs.Every illegitimate child is an heir of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child; and in all cases is an heir of his mother; and inherits his or her estate, in whole or in part, as the case may be, in the same manner as if he had been born in 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 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 inherit 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 estates of all the children in like manner as if all had been legitimate. The issue of all marriages null in law, or dissolved by divorce, are legitimate. 1180 Cross References Adoption of illegitimate child, see section 164.*Ante*, p. 1146. Children of annulled marriage legitimate, see section 43.*Ante*, p. 1129. Divorce not to affect legitimacy, see section 99.*Ante*, p. 1137. Sec. 404. Succession to illegitimate child.— Heirs of 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 legitimated by a subsequent marriage of his parents, or adopted by his father as provided by section 164; 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. Sec. 405. Degrees of kindred, how computed.— Computation of degrees of kindred.The degree of kindred is established by the number of generations, and each generation is called a degree. Sec. 406. Same; direct and collateral consanguinity.— Direct and collateral consanguinity.The series of degrees forms the line; the series of degrees between persons who descend from one another is called direct or lineal consanguinity; and the series of degrees between persons who do not descend from one another, but spring from a common ancestor, is called the collateral line or collateral consanguinity. Sec. 407. Same; direct line descending, and direct line ascending.— Direct, descending and ascending.The direct line is divided into a direct line descending and a direct line ascending. The first is that which connects the ancestors with those who descend from him. The second is that which connects a person with those from whom he descends. Sec. 408. Same; degrees in direct line.— Degrees in.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 grandson in the second; and vice versa with regard to the father and grandfather toward the sons and grandsons. Sec. 409. Same; degrees in collateral line.— Degrees in collateral line.In the collateral line the degrees are counted by generations, from one of the relations up to the common ancestor, and from the common ancestor to the other relations. In such computation the decedent is excluded, the relative included, and the ancestor counted but once. Thus, brothers are related in the second degree; uncle and nephew in the third degree; cousins german in the fourth, and so on. Sec. 410. Relatives of the half blood.— Relatives of the half blood.Kindred of the half blood inherit equally with those of the whole blood in the same degree, unless the inheritance come to the intestate by descent 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. Sec. 411. Advancements constitute part of distributive share.— Advancements constitute part of distributive share.Any estate given by the decedent in his lifetime as an advancement to any child, or other heir, is a part of the estate of the decedent for the purposes of division and distribution thereof among his heirs, and must be taken by such child, or other heir, toward his share of the estate of the decedent. Cross Reference Advancements, see sections 347 and 382.*Ante*, pp. 1171, 1175. Sec. 412. Advancements, when too much, or not enough.— Advancements, sufficiency.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 1181received is less than his share, he is entitled to so much more as will give him his full share of the estate of the decedent. Sec. 413. What are advancements.— All gifts and grants areWhat are. made as advancements, if expressed in the gift or grant to be so made, or if charged in writing by the decedent as an advancement, or acknowledged in writing as such, by the child or other successor or heir. Sec. 414. Value of advancements, how determined.— If the valueValue of, how determined. of the estate so advanced is expressed in the grant, or in the charge thereof made by the decedent, or in the acknowledgment of the party receiving it, it must be held as of that value in the division and distribution of the estate; otherwise, it must be estimated according to its value when given, as nearly as the same can be ascertained. Sec. 415. When heir, advanced to, dies before decedent.— If anyWhen heir, advanced to, predeceases decedent. child, or other 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. Sec. 416. Inheritance of husband and wife from each other.— Inheritance of husband and wife from each other.The provisions of the preceding sections of this chapter, as to the inheritance of the husband and wife from each other, apply only to the separate property of the decedents. Sec. 417. Community property on death of spouse.— Community property on death of spouse.Upon the death of either husband or wife, one half of the community property belongs to the surviving spouse; the other half is subject to the testamentary disposition of the decedent, and in the absence thereof goes to the surviving spouse, subject to the provisions of section 418. Sec. 418. Community property subject to administration; exception; husband’s control after death of wife.— Subject to administration.Community property passing from the control of the husband by reason of his death is subject to administration, his debts, family allowance, and the charges and expenses of administration: *Provided, however*,*Proviso*.Clothing, household effects, etc. That the clothing of the decedent and the household effects not exceeding in value $2,500 shall go to the surviving wife without administration, and shall not be subject to the debts and allowance aforesaid. Community property passing from the control of the husband byControl of husband after wife’s death. virtue of testamentary disposition by the wife is subject to administration, his debts, and the charges and expenses of administration, but the husband, pending administration, shall retain the same power to sell, manage and deal with the community personal property as he had in her lifetime; and his possession and control of the community property shall not be transferred to the personal representative of the wife, except to the extent necessary to carry her will into effect. Cross Reference Community property, defined, see sections 119 and 202.*Ante*, pp. 1139, 1154. Sec. 419. Inheritance by representation.— Inheritance orInheritance by representation. succession “by right of representation” takes place when the descendants of any deceased heir take the same share or right in the estate of another person that their parents would have taken if living. Posthumous children are considered as living at the death of their parents. Sec. 420. Aliens may inherit, when, and how.— Resident aliensInheritance by aliens. may take in all cases by succession as citizens; and no person capable of succeeding under the provisions of this chapter is precluded from 1182such succession by reason of the alienage of any relative; but no nonresident 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. Cross References See, also, section 191.*Ante*, p. 1153. Time to claim succession, see section 192.*Ante*, p. 1153. Sec. 421. Escheat of property.— Escheat of property.If a person dies owning any property situated in the Canal Zone and leaving no heir, next of kin, legatee, or other person entitled thereto, such property shall escheat to Vol. 44, p. 230.the United States. (Act Cong. Dec. 29, 1926, c. 19, § 17, 44 Stat. 930.) Cross Reference See, also, section 402 (9).*Ante*, p. 1179. Sec. 422. Successor liable for decedent’s obligations.— Successor’s liability 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. Sec. 423. Person convicted of murder of decedent not to succeed— Person convicted of murder of decedent.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 would otherwise be entitled to succeed descends to the other persons entitled thereto under the provisions of this chapter. CHAPTER 27.— OBLIGATIONS IN GENERALOBLIGATIONS IN GENERAL. definition of obligations Sec. 424. Obligation, what.— Definition.An obligation is a legal duty, by which a person is bound to do or not to do a certain thing. Sec. 425. How created and enforced.— How created and enforced.An obligation arises either from:
(1)The contract of the parties; or,
(2)The operation of law. An obligation arising from operation of law may be enforced in the manner provided by law, or by civil action or proceeding. Interpretation of obligations.interpretation of obligationsgeneral rules of interpretation Sec. 426. General rules.— General rules.*Post*, p. 1197.The rules which govern the interpretation of contracts are prescribed by chapter 30 of this code. Other obligations are interpreted by the same rules by which statutes of a similar nature are interpreted. joint or several obligations Sec. 427. Obligations, joint or several, etc.— Joint, several, etc.An obligation imposed upon several persons, or a right created in favor of several persons, may be: 1. Joint; 2. Several; or, 3. Joint and several. Sec. 428. When joint.— Joint.An obligation imposed upon several persons, or a right created in favor of several persons, is presumed to be joint, and not several, except in the special cases mentioned in the 1183chapter on the interpretation of contracts. This presumption, in the case of a right, can be overcome only by express words to the contrary. Cross References Promise joined in by several, all of whom receive some benefit, is presumed to be joint and several, see section 569.*Post*, p. 1200. Promise in the singular, but executed by several, is presumed to be joint and several, see section 570.*Post*, p. 1200. Sec. 429. Contribution between joint parties.— A party to a joint,Contribution between joint parties. or joint and several obligation, who satisfies more than his share of the claim against all, may require a proportionate contribution from all the parties joined with him. Cross Reference Surety acquires rights of creditors, see section 1296.*Post*, p. 1295. conditional obligationsConditional obligations. Sec. 430. Obligation, when conditional.— An obligation isWhen conditional. conditional, when the rights or duties of any party thereto depend upon the occurrence of an uncertain event. Sec. 431. Conditions, kinds of.— Conditions may be precedent,Kinds of. concurrent, or subsequent. Cross References Conditional legacies, see sections 376 and 377.*Ante*, p. 1175. Conditions concurrent, see section 433. Conditions of ownership, see sections 217 et seq.*Ante*, p. 1155. Conditions precedent, see section 432. Condition subsequent, see section 434. Sec. 432. Condition precedent.— A condition precedentCondition precedent. is one condition precedent which is to be performed before some right dependent thereon accrues, or some act dependent thereon is performed. Cross Reference Conditions precedent, see sections 217 to 219, 377 and 466.*Ante*, pp. 1155, 1175; post, p. 1187. Sec. 433. Conditions concurrent.— Conditions concurrent areConditions concurrent. those which are mutually dependent, and are to be performed at the same time. Cross Reference Concurrent conditions, performance of, see section 466.*Post*, p. 1187. Sec. 434. Condition subsequent.— A condition subsequent is oneCondition subsequent. referring to a future event, upon the happening of which the obligation becomes no longer binding upon the other party, if he chooses to avail himself of the condition. Cross Reference Conditions subsequent, see sections 218 and 380.*Ante*, pp. 1155, 1175. Sec. 435. Performance, etc., of conditions, when essential.— Performance, etc., of conditions.Before any party to an obligation can require another party to perform any act under it, he must fulfill all conditions precedent 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 section 436. 1184 Cross References Concurrent or precedent conditions, performance of, see section 466.*Post*, p. 1187. Impossible conditions void, see section 437. Sec. 436. When performance, etc., excused.— When excused.If a party to an obligation gives notice to another, before the latter is in default, that he will not perform the same upon his part, and does not retract such notice before the time at which performance upon his part is due, such other party is entitled to enforce the obligation without previously performing or offering to perform any conditions upon his part in favor of the former party. Cross References Excuse of performance, see section 474.*Post*, p. 1188. Refusal to accept performance before the time to perform, see section 477.*Post*, p. 1189. Sec. 437. Impossible or unlawful conditions void.— Impossible and unlawful conditions void.A condition in a contract, the fulfillment of which is impossible or unlawful *Post*, p. 1195.within the meaning of sections 520 to 524, or which is repugnant to the nature of the interest created by the contract, is void. Cross References Conditions, when impossible, see sections 521 et seq.*Post*, p. 1195. Object of contracts, see sections 520 et seq.*Post*, p. 1195. Unlawful conditions, see sections 219 et seq.*Ante*, p. 1155. Sec. 438. Conditions involving forfeiture, how construed.— Conditions involving forfeiture.A condition involving a forfeiture must be strictly interpreted against the party for whose benefit it is created. Alternative obligations.alternative obligations. Sec. 439. Who has the right of selection.— 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. Sec. 440. Right of selection, how lost.— 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 which the obligation ought to be performed, the right of selection passes to the other party. Sec. 441. Alternatives indivisible.— Alternatives indivisible.The party having the right of selection between alternative acts must select one of them in its entirety, and can not select part of one and part of another without the consent of the other party. Sec. 442. Nullity of one or more of alternative obligations.— When one alternative void.If one of the alternative acts required by an obligation is such as the law will not enforce, or becomes unlawful, or impossible of performance, the obligation is to be interpreted as though the other stood alone. Transfer of obligations.transfer of obligations Sec. 443. Burden of obligation not transferable.— 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. Sec. 444. Rights arising out of obligation transferable.— Rights arising out of, transferable.A right arising out of an obligation is the property of the person to whom it is due, and may be transferred as such. 1185 Cross References Assignment of things in action, see section 239.*Ante*, p. 1158. Incidents following things transferred, see section 280.*Ante*, p. 1163. Literary property is assignable, see section 242.*Ante*, p. 1159. Mere possibility can not be transferred, see section 262.*Ante*, p. 1161. Nonnegotiable instrument transferable by indorsement, see section 445.*Ante*, p. 1158. Products of the mind, assignment of, see section 240.*Ante*, p. 1161. Property of any kind may be transferred, see section 261. Sec. 445. Nonnegotiable Instruments may be transferred.— Nonnegotiable instruments may be transferred.A nonnegotiable written contract for the payment of money or personal transferred. 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. extinction of obligationsExtinction of obligations. performance Sec. 446. Obligation extinguished by performance.— By performance.Full performance, formalice 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. Sec. 447. Performance by one of several joint debtors.— By one of several joint debtors.Performance of an obligation by one of several persons who are jointly liable under it extinguishes the liability of all. Sec. 448. Performance to one of joint creditors.— To one of joint creditors.An obligation in favor of joint creditors is extinguished by performance rendered to any of them, except in the case of a deposit made by *Post*, pp. 1226–1242.joint owners, which is regulated by chapters 36 to 38 of this code on deposit. Cross Reference Performance to one of joint creditors, see section 711.*Post*, p. 1227. Sec. 449. Effect of directions by creditors.— 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 performance. Sec. 450. Partial performance.— Part performance.A partial performance of an indivisible obligation extinguishes a corresponding proportion thereof if the benefit of such performance is voluntarily retained by the creditor, but not otherwise. If such partial performance is of such a nature that the creditor can not avoid retaining it without injuring his own property, his retention thereof is not presumed to be voluntary. Cross Reference Effect of part performance, see sections 454, 481, and 1281.*Post*, pp. 1186, 1189, 1293. Sec. 451. Payment, what.— “Payment,” defined.Performance of an obligation for the delivery of money only is called payment. Cross Reference Tender, effect of, see sections 468 and 472.*Post*, p. 1188. Sec. 452. Application of general performance.— Application of general performance.Where a debtor, under several obligations to another, does an act, by way of perform-1186ance, in whole or in part, which is equally applicable to two or more of such obligations, such performance must be applied as follows:
(1)If, at the time of performance, the intention or desire of the debtor that such performance should be applied to the extinction of any particular obligation, be manifested to the creditor, it must be so applied.
(2)If no such application be then made, the creditor, 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 performance; 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 pro-portion; and an application once made by the creditor can not be rescinded without the consent of the debtor.
(3)If neither party makes such application within the time prescribed herein, the performance must be applied to the extinction of obligations in the following order; and, if there be more than one obligation of a particular class, to the extinction of all in that class, ratably: 1. Of interest due at the time of the performance. 2. Of principal due at that time. 3. Of the obligation earliest in date of maturity. 4. Of an obligation not secured by a lien or collateral undertaking. 5. Of an obligation secured by a lien or collateral undertaking. Offer of performance.offer of performance. Sec. 453. Obligation extinguished by offer of performance.— Obligation extinguished by.An obligation is extinguished by an offer of performance, made in conformity to the rules herein prescribed, and with intent to extinguish the obligation. Cross References By whom offer may be made, see section 455. Duties of person making tender, see section 471.*Post*, p. 1188. Tender of payment, see sections 468 and 472.*Post*, p. 1188. Tender of article passes title, see sections 470 and 472.*Post*, p. 1188. Sec. 454. Offer of partial performance.— Offer of partial performance.An offer of partial performance is of no effect. Cross Reference Part performance, effect of, see sections 450, 481, and 1281.*Ante*, p. 1185; *post*, pp. 1189, 1293. Sec. 455. By whom to be made.— By whom made.An offer of performance must be made by the debtor, or by some person on his behalf and with his assent. Sec. 456. To whom to be made.— To whom 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. Cross Reference Where offer may be made, see section 457.*Post*, p. 1187. 1187 Sec. 457. Where offer may be made.— In the absence of an expressWhere offer may be made. 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 can not with reasonable diligence, be found within the Canal Zone, and within a reasonable distance from his residence or place of business, of11 So in original. if he evades the debtor, then at his residence or place of business, if the same can, with reasonable diligence, be found within the Canal Zone; or 4. If this can not be done, then at any place within the Canal Zone. Sec. 458. When offer must be made.— Where an obligationWhen offer must be made. fixes a time for its performance, an offer of performance must be made at that time, within reasonable hours, and not before nor afterwards. Sec. 459. 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. Sec. 460. Compensation after delay in performance.— Compensation after delay in performance.Where delay in performance is capable of exact and entire compensation, 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 meantime. Sec. 461. Offer to be made in good faith.— Offer to be made in good faith.An offer of performance must be made in good faith, and in such manner as is most likely, under the circumstances, to benefit the creditor. Sec. 462. Conditional offer.— Conditional offer.An offer of performance must be free from any conditions which the creditor is not bound, on his part, to perform. Cross Reference Offer of performance upon condition, see sections 466 and 467. Sec. 463. Ability and willingness essential.— Ability and willingness.An offer of performance is of no effect if the person making it is not able and willing to perform according to the offer. Sec. 464. Production of thing to be delivered not necessary.— Production of thing to be delivered.The thing to be delivered, if any, need not in any case be actually produced, upon an offer of performance, unless the offer is accepted. Sec. 465. Thing offered to be kept separate.— A thing, when offered by way of performance, must not be mixed with other thingsThing offered to be kept separate. from which it can not be separated immediately and without difficulty. Cross Reference Custody of thing offered, see section 471.*Post*, p. 1188. Sec. 466. Performance of condition precedent.— 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 condition. Cross References Conditions precedent defined. see sections 218, 377, and 432.*Ante*, pp. 1155, 1175, 1183. Conditions subsequent defined, see sections 218, 380, and 434.*Ante*, pp. 1155, 1175, 1183. Performance of conditions, see section 435.*Ante*, p. 1183. Unlawful and impossible conditions void, see sections 219 and 437.*Ante*, pp. 1155, 1184. 1188 Sec. 467. Written receipts.— Written receipts.A debtor has a right to require from his creditor a written receipt for any property delivered in performance of his obligation. Sec. 468. Extinction of pecuniary obligation.— Extinction of pecuniary obligation.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 the Canal Zone, of good repute, and notice thereof is given to the creditor. Cross Reference Tender stopping interest, see section 472. Sec. 469. Objections to mode of offer.— Objection 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 by the creditor, if not then stated. Sec. 470. Title to thing offered.— 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. Sec. 471. Custody of thing offered.— Custody of.The person offering a thing, other than money, by way of performance, must, if he means to treat it as belonging to the creditor, retain it as a depositary for hire, until the creditor accepts it, or until he has given reasonable notice to the creditor that he will retain it no longer, and, if with reasonable diligence he can find a suitable depositary therefor, until he has deposited it with such person. Cross References Depositary for hire, see section 725.*Post*, p. 1229. Thing offered to be kept separate, see section 465.*Ante*, p. 1187. Sec. 472. Effect of offer on accessories of obligation.— Effect of offer on accessories of obligations.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. Cross Reference Tender transfers title. see section 470. Sec. 473. Creditor’s retention of thing which he refuses to accept.— Creditor’s retention of thing which he refuses to accept.If anything is given to a creditor by way of performance, 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. Cross Reference Gratuitous depositary, see sections 720 et seq.*Post*, p. 1229. Prevention of performance or offer.prevention of performance or offer Sec. 474. What excuses performance, etc.— What excuses performance, etc.The want of performance of an obligation, or of an offer of performance, in whole or in part, or any delay therein, is excused by the following causes, to the extent to which they operate: 1. When such performance or offer is prevented or delayed by the act of the creditor, or by the operation of law, even though there may have been a stipulation that this shall not be an excuse; 1189 2. When it is prevented or delayed by an irresistible, super-human cause, or by the act of public enemies of the United States, unless the parties have expressly agreed to the contrary; or, 3. When the debtor is induced not to make it, by any act of the creditor intended or naturally tending to have that effect, done at or before the time at which such performance or offer may be made, and not rescinded before that time. Cross Reference Excuse of performance, see section 436.*Ante*, p. 1184. Sec. 475. Effect of prevention of performance.— Effect of prevention of performance.If the performance of an obligation be prevented by the creditor, the debtor is entitled to all the benefits which he would have obtained if it had been performed by both parties. Sec. 476. 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 receives from the actual performance. Sec. 477. Effect of refusal to accept performance before Refusal to accept, offer.— Refusal to accept, 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 willingness to accept it. Cross Reference Refusal to perform entities the other party to enforce the obligation, without performance on his part, see section 436.*Ante*, p. 1184. accord and satisfactionAccord and satisfaction. Sec. 478. Accord, what.— An accord is an agreement to accept, in“Accord.” extinction of an obligation, something different from or less than that to which the person agreeing to accept is entitled. Cross References Order on third person, effect of, see section 485.*Post*, p. 1190. Release of obligations, see sections 486 et seq.*Post*, p. 1190. Substituting new obligation for existing one is novation, see sections 482 et seq.*Post*, p. 1190. Sec. 479. Effect of accord.— Though the parties to an accord areEffect of. bound to execute it, yet it does not extinguish the obligation until it is fully executed. Sec. 480. Satisfaction, what.— Acceptance, by the creditor, of“Satisfaction.” the consideration of an accord extinguishes the obligation, and is called satisfaction. Cross Reference Part performance, see section 481. Sec. 481. Part performance.— Part performance of an obligation, Part performance.either before or after a breach thereof, when expressly accepted by the creditor in writing, in satisfaction, or rendered in pursuance of an agreement in writing for that purpose, though without any new consideration, extinguishes the obligation. 1190 Cross Reference Part performance, see section 450, 454, and 1281.*Ante*, pp. 1185, 1186; *post*, p. 1293. novation Sec. 482. Novation, what.— Novation.Novation is the substitution of a new obligation for an existing one. Cross References Novation a contract, see section 484. Right to sue on contract made for one’s benefit, see section 494.*Post*, p. 1191. Sec. 483. Modes of novation.— Modes of.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. Sec. 484. Novation a contract.— Novation a contract.Novation is made by contract, and is subject to all the rules concerning contracts in general. Sec. 485. Rescission of novation.— Rescission of.When the obligation of a third person, or an order upon such person is accepted in satisfaction, 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. Release.release Sec. 486. Obligation extinguished by release.— Obligation extinguished by.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. Cross Reference Writing imports a consideration, see section 534.*Post*, p. 1196. Sec. 487. Certain claims not affected by general release.— General release, claims not affected by.A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. Sec. 488. Release of one of several joint debtors.— 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 guarantors; nor does it affect their right to contribution from him. Cross References Guarantor’s liability discharged by what dealings with debtor, see section 1278.*Post*, p. 1293. Rights of sureties, see section 1292.*Post*, p. 1295. 1191 CHAPTER 28.— NATURE OF A CONTRACTNATURE OF A CONTRACT. Sec. 489. Contract, what.— A contract is an agreement to do or“Contract.” not to do a certain thing. Cross References Object of a contract, see section 520 et seq.*Post*, p. 1195. Parties to a contract, see section 491 et seq. Sec. 490. Essential elements of contract.— It is essential to theElements of. existence of a contract that there should be: 1. Parties capable of contracting; 2. Their consent; 3. A lawful object; and, 4. A sufficient cause or consideration. Cross References Consent, see sections 495 et seq.*Post*, p. 1195. Consideration, see sections 525 et seq.*Post*, p. 1195. Requisites of object, see section 521.*Post*, p. 1200. Unlawful contracts, see section 572.Parties. parties.Parties. Sec. 491. Who may contract.— All persons are capable ofCapacity. contracting, except minors and persons of unsound mind. Cross References Contracts of infants, see sections 19 et seq., and 598.*Ante*, p. 1126; *post*, p. 1204. Contracts of married women, see sections 113, 114, and 122.*Ante*, pp. 1139, 1140. Contracts of persons of unsound mind, see sections 24 et seq.*Ante*, p. 1126. Sec. 492. Minors, etc. Minors and persons of unsound mind,Minors, etc. have only such capacity as is defined by chapter 2 of this code. Cross Reference Powers of minors, see sections 19 et seq.*Ante*, p. 1126. Sec. 493. Identification of parties necessary.— It is essentialIdentification of parties. to the validity of a contract, not only that the parties should exist, but that it should be possible to identify them. Sec. 494. When contract for benefit of third person may be enforced.— Enforcement of contract for benefit of third person.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. consentConsent. Sec. 495. Essentials of consent.— The consent of the parties to aEssentials. contract must be: 1. Free; 2. Mutual; and, 3. Communicated by each to the other. Cross References Consent, when not free, and effect, see sections 496 and 497.*Post*, p. 1192. Consent, when not mutual, see section 510.*Post*, p. 1194. Consent, how communicated, see sections 511 et seq.*Post*, p. 1194. 1192 Sec. 496. Consent, when voidable.— 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 sections 580 to 583. Cross Reference Rescission of contracts, see sections 580 et seq., and 1645 et seq.*Post*, pp. 1201, 1337. Sec. 497. Apparent consent, when not free.— Apparent consent.An apparent consent is not real or free when obtained through: 1. Duress; 2. Menace; 3. Fraud; 4. Undue influence; or, 5. Mistake. Cross References Duress, defined, see section 499. Menace, defined, see section 500. Fraud, defined, see section 501. Undue influence, defined, see section 505.*Post*, p. 1193. Mistake, defined, see sections 506 and 507.*Post*, p. 1193. Recission, where consent obtained by mistake, duress, menace, fraud, or undue influence, see section 581.*Post*, p. 1201. Sec. 498. When deemed to have been obtained by fraud, and so forth.— When deemed to have been obtained by fraud, etc.Consent is deemed to have been obtained through one of the causes mentioned in section 497 only when it would not have been given had such cause not existed. Sec. 499. Duress, what.— “Duress.”Duress consists in: 1. Unlawful confinement of the person of the party, or of the husband or wife of such party, or of an ancestor, descendant, 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 fraudulently obtained, or fraudulently made unjustly harassing or oppressive. Cross Reference Rescission of contract for duress, see section 581.*Post*, p. 1201. Sec. 500. Menace, what.— “Menace.”Menace consists in a threat: 1. Of such duress as is specified in subdivisions one and three of section 499; 2. Of unlawful and violent injury to the person or property of any such person as is specified in section 499; or, 3. Of injury to the character of any such person. Cross Reference Rescission of contract for menace, see section 581.*Post*, p. 1201. Sec. 501. Fraud, actual or constructive.— Fraud, actual or constructive.Fraud is either actual or constructive. Cross Reference Rescission of contract for fraud, see section 581.*Post*, p. 1201. Sec. 502. Actual fraud, what.— “Actual fraud.”Actual fraud, within the meaning of this subchapter, consists in any of the following acts, committed by a party to the contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the contract: 1193 1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true; 2. The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true; 3. The suppression of that which is true, by one having knowledge or belief of the fact; 4. A promise made without any intention of performing it; or, 5. Any other act fitted to deceive. Cross References Deceit, see sections 590 and 591.*Post*, p. 1203. Fraudulent Instruments and transfers, see sections 1659 et seq.*Post*, p. 1338. Rescission of contracts for fraud, see section 581, 1201.*Post*, p. 1201. Sec. 503. Constructive fraud.— Constructive fraud consists:“Constructive fraud.” 1. In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; or, 2. In any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud. Cross Reference Recission of contract for fraud, see section 581.*Post*, p. 1201. Sec. 504. Actual fraud a question of fact.— Actual fraud a question of fact.Actual fraud is always a question of fact. Sec. 505. Undue influence, what.— Undue influence consists:“Undue influence.” 1. In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining 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. Cross References Rescission of contracts see sections 581 and 1645.*Post*, pp. 1201, 1337. Undue influence vitiating will, see section 312.*Ante*, p. 1167. Sec. 506. Mistake, what.— “Mistake.”Mistake may be either of fact or law. Sec. 507. Mistake of fact.— 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. Cross Reference Rescission of contract for mistake, see section 581.*Post*, p. 1201. Sec. 508. Mistake of law.— Mistake of law.Mistake of law constitutes a mistake, within the meaning of this subchapter, 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 which they do not rectify. 1194 Cross Reference Rescission of contract for mistake, see section 581.*Post*, p. 1201. Sec. 509. Mistake of foreign laws.— Mistake of foreign laws.Mistake of foreign laws is mistake of fact. Sec. 510. Mutuality of consent.— 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. Cross Reference Interpretation of contracts, see sections 546 et seq.*Post*, p. 1197. Sec. 511. Communication of consent.— Communication of consent.Consent can be communicated with 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. Sec. 512. Mode of communicating acceptance of proposal.— Mode of communicating acceptance.If a proposal prescribes any conditions concerning the communication of its acceptance, the proposer is not bound unless they are conformed to; but in other cases any reasonable and usual mode may be adopted. Sec. 513. When communication deemed complete.— When communication deemed complete.Consent is deemed to be fully communicated between 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 section 512. Sec. 514. Acceptance by performance of conditions.— Acceptance by performance.Performance of the conditions of a proposal, or the acceptance of the consideration offered with a proposal, is an acceptance of the proposal. Sec. 515. Acceptance must be absolute.— Acceptance must be absolute.An acceptance must be absolute and unqualified, or must include in itself an acceptance of that character which the proposer can separate from the rest, and which will conclude the person accepting. A qualified acceptance is a new proposal. Sec. 516. Revocation of proposal.— Revocation of proposal.A proposal may be revoked at any time before its acceptance is communicated to the proposer, but not afterwards. Sec. 517. Revocation, how made.— How made.A proposal is revoked: 1. By communication of notice of revocation by the proposer to the other party, in the manner prescribed by sections 511 and 513, 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 precedent to acceptance; or, 4. By the death or insanity of the proposer. Sec. 518. Ratification of contract void for want of consent.— Ratification of contract void for want of consent.A contract which is voidable solely for want of due consent, may be ratified by a subsequent consent. Sec. 519. Assumption of obligation by acceptance of benefits.— Assumption of obligation by acceptance of benefits.A voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it, so far as the facts are known, or ought to be known, to the person accepting. Cross Reference He who takes benefit must bear burden, see section 1709.*Post*, p. 1346. 1195 Object.object Sec. 520. Object, what.— Defined.The object of a contract is the thing which it is agreed, on the part of the party receiving the consideration, to do or not to do. Cross References Unlawful conditions, see section 437.*Ante*, p. 1184. Unlawful contracts, see sections 521 and 572 et seq.*Post*, p. 1200. Sec. 521. Requisites of object.— Requisites.The object of a contract must be lawful when the contract is made, and possible and ascertainable by the time the contract is to be performed. Cross References Essential elements of contract, see section 490.*Ante*, p. 1191. Unlawful contracts, see sections 572 et seq.*Post*, p. 1200. Sec. 522. Impossibility, what.— “Impossibility,” defined.Everything is deemed possible except that which is impossible in the nature of things. Sec. 523. When contract wholly void.— When contract wholly void.Where a contract has but a single object, and such object is unlawful, whether in whole or in part, or wholly impossible of performance, or so vaguely expressed as to be wholly unascertainable, the entire contract is void. Cross Reference Consideration illegal in part, see sections 524 and 528. Sec. 524. When contract partially void.— 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. Cross References Contract illegal in part, see section 528.*Post*, p. 1196. Provision in, impossible of performance, effect of, see section 533. considerationConsideration. Sec. 525. Good consideration, what.— Good consideration.Any benefit conferred, or agreed to be conferred, upon the promisor, by any other person, 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 consideration for a promise. Sec. 526. How far legal or moral obligation is a good consideration.— Legal or moral obligation as good consideration.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 consideration for a promise, to an extent corresponding with the extent of the obligation, but no further or otherwise. Sec. 527. Consideration lawful.— Unlawful consideration.The consideration of a contract must be lawful within the meaning of section 572. Cross Reference Unlawful contracts, see sections 572 et seq.*Post*, p. 1200. Sec. 528. Effect of its illegality.— Effect of illegality.If any part of a single consideration for one or more objects, or of several considerations for a single object, is unlawful, the entire contract is void. 1196 Cross Reference Consideration illegal in part, see sections 523 and 524.*Ante*, p. 1195. Sec. 529. Consideration executed or executory.— Consideration executed or executory.A consideration may be executed or executory, in whole or in part. In so far as it is executory it is subject to the provisions of sections 520 to 524. Sec. 530. Executory consideration.— Executory.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. Sec. 531. How ascertained.— How ascertained.When a contract does not determine the amount of the consideration, nor the method by which it is to be ascertained, or when it leaves the amount thereof to the discretion of an interested party, the consideration must be so much money as the object of the contract is reasonably worth. Sec. 532. Effect of impossibility of ascertaining consideration.— 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. Sec. 533. 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. Cross Reference Effect of partial invalidity of contract, see section 524.*Ante*, p. 1195. Sec. 534. Written instrument presumptive evidence of consideration.— Written instrument presumptive evidence of consideration.A written instrument is presumptive evidence of a consideration. Cross References Distinction between sealed and unsealed Instruments abolished, see section 545.*Post*, p. 1197. Presumption of consideration for negotiable instrument, see section 1423.*Post*, p. 1311. Sec. 535. Burden of proof to invalidate sufficient consideration.— Burden of proof to invalidate.The burden of showing a want of consideration sufficient to support an instrument lies with the party seeking to invalidate or avoid it. CHAPTER 29.— MANNER OF CREATING CONTRACTSMANNER OF CREATING CONTRACTS. Sec. 536. Contracts, express of implied.— Contract, express or implied.A contract is either express or implied. Sec. 537. Express contracts, what.— Express contract.An express contract is one the terms of which are stated in words. Sec. 538. Implied contract, what.— Implied contract.An implied contract is one the existence and terms of which are manifested by conduct. Cross Reference Obligations imposed by law, see sections 589 et seq.*Post*, p. 1203. Sec. 539. What contracts may be oral.— Oral contracts.All contracts may be oral, except such as are specially required by statute to be in writing. Cross Reference Contracts when to be in writing, see sections 540, 541, and 600.*Post*, p. 1204. Sec. 540. Contract not in writing through fraud, may be enforced against fraudulent party.— Contracts not in writing, through fraud.Where a contract, which is 1197required by law to be in writing, is prevented from being put into writing by the fraud of a party thereto, any other party who is by such fraud led to believe. that it is in writing, and acts upon such belief to his prejudice, may enforce it against the fraudulent party. Sec. 541. What contracts must be written.— The followingWritten contracts. contracts are invalid, unless the same, or some note or memorandum thereof, is in writing and subscribed to by the party to be charged, or by his agent: 1. An agreement that by its terms is not to be performed within a year from the making thereof; 2. A special promise to answer for the debt, default, or miscarriage of another, except in the cases provided for in section 1265;*Post*, p. 1291. 3. An agreement made upon consideration of marriage other than a mutual promise to marry; 4. An agreement for the leasing of real property for a longer period than one year, 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: 5. An agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or a commission: 6. An agreement which by its terms is not to be performed during the lifetime of the promisor, or an agreement to bequeath any property, or make any provision for any person by will. Cross References Contracts to sell or sales of goods or dioses in action, see section 600.*Post*, p. 1204. Fraudulent transfers, see section 1660.*Post*, p. 1339. Guaranty, see sections 1264 et seq.*Post*, p. 1291. Oral authorization, sufficiency of, see section 1046.*Post*, p. 1265. Power of attorney to execute mortgage, see section 1345.*Post*, p. 1301. Sec. 542. Effect of written contracts.— Effect of.The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument. Cross Reference Writing supersedes oral stipulations, see section 550.*Post*, p. 1198. Sec. 543. Contract in writing, takes effect when.— Time of taking effect.A contract in writing takes effect upon its delivery to the party in whose favor it is made, or to his agent. Cross Reference Delivery of transfers in writing, see generally section 268.*Ante*, p. 1162. Sec. 544. Provisions on delivery of grants to apply.— Provisions concerning delivery.*Ante*, p. 1161.The provisions of sections 264 and 267 to 272, concerning the delivery of grants, absolute and conditional, apply to all written contracts. Cross Reference Mode of transfer, see sections 264 et seq.*Ante*, p. 1161. Sec. 545. Distinctions between sealed and unsealed instruments abolished.— Distinctions between sealed and unsealed instruments abolished.All distinctions between sealed and unsealed Instruments are abolished. CHAPTER 30.— INTERPRETATION OF CONTRACTSINTERPRETATION OF CONTRACTS. Sec. 546. Uniformity of interpretation.— Uniformity of interpretation.ll contracts, whether public or private, are to be interpreted by the same rules, except as otherwise provided by this code. 1198 Sec. 547. Contracts, how to be interpreted.— Intent of parties.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. Cross Reference Contract restricted to its evident object, see section 559.*Post*, p. 1199. Sec. 548. Intention of parties, how ascertained.— How ascertained.For the purpose of ascertaining the intention of the parties to a contract, if otherwise doubtful, the rules given in this chapter are to be applied. Cross Reference Construction against party causing ambiguity, see section 565.*Post*, p. 1199. Sec. 549. Intention to be ascertained from language.— 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. Sec. 550. Interpretation of written contracts.— Interpretation of written contracts.When a contract 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 chapter. Cross Reference Writing supersedes oral negotiations, see section 542.*Ante*, p. 1197. Sec. 551. Writing, when disregarded.— 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. Cross References Principles governing in revising contracts, see section 1643.*Post*, p. 1337. Revising contract for fraud or mistake, see section 1641.*Post*, p. 1337. Sec. 552. Effect to be given to every part of contract.— Effect to be given to every part of contract.The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other. Cross Reference Repugnancies and inconsistencies in, see sections 563 and 564.*Post*, p. 1199. Sec. 553. Several contracts, when taken together.— Several contracts construed as one.Several contracts relating to the same matters, between the same parties, and made as parts of substantially one transaction, are to be taken together. Sec. 554. Interpretation in favor of contract.— Interpretation in favor of contract.A contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable, of being carried into effect, if it can be done without violating the intention of the parties. Sec. 555. Words to be understood in the usual sense.— Words to be understood in usual sense.The words of a contract are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning; unless used by the parties in a technical sense, or unless a special meaning is given to them by usage, in which case the latter must be followed. Sec. 556. Technical words.— Technical words.Technical words are to be interpreted as usually understood by persons in the profession or business to which they relate, unless clearly used in a different sense. Cross Reference Technical words, how constructed, see sections 11 and 361.*Ante*, pp. 1124, 1173. 1199 Sec. 557. Law of place.— A contract is to be interpretedLaw of place. according to the law and usage of the place where it is to be performed; or, if it does not indicate a place of performance, according to the law and usage of the place where it is made. Sec. 558. Contracts explained by circumstances.— A contractContracts explained by circumstances. may be explained by reference to the circumstances under which it by was made, and the matter to which it relates. Sec. 559. Contract restricted to its evident object.— HoweverContract restricted to object. broad may be the terms of a contract, it extends only to those things concerning which it appears that the parties intended to contract. Sec. 560. Interpretation in sense in which promisor believed promise to rely.— Interpretation in sense in which promisor believed promisee to rely.If the terms of a promise are in any respect believed promisee to 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. Cross Reference Interpretation against promisor, see section 565. Sec. 561. Particular clauses subordinate to general intent.— Particular clauses subordinate.Particular causes11 So in original. of a contract are subordinate to its general intent. Cross Reference Repugnancies and inconsistencies, see sections 563 and 564. Sec. 562. Contract, partly written and partly printed.— Writing to govern print.Where govern a contract is partly written and partly printed, or where part of it is written or printed under the special directions of the parties, and with a special view to their intention, and the remainder is copied from a form originally prepared without special reference to the particular parties and the particular contract in question, the written parts control the printed parts, and the parts which 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. Sec. 563. Repugnances, how reconciled.— Repugnances, how reconciled.Repugnancy in a contract must be reconciled, if possible, by such an interpretation as will give some effect to the repugnant clauses, subordinate to the general intent and purpose of the whole contract. Cross Reference Inconsistent words rejected, see section 564. Sec. 564. Inconsistent words rejected.— Words in a contractInconsistent words rejected. which are wholly inconsistent with its nature, or with the main intention of the parties, are to be rejected. Cross Reference Repugnances, how reconciled, see section 563. Sec. 565. Words to be taken most strongly against whom.— Against whom words are to be taken most strongly.In cases of uncertainty not removed by the preceding rules, the language strongly. 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. 1200 Cross References Interpretation in sense promisor believed promisee to rely, see section 560.*Ante*, p. 1199. Interpretation of doubtful words, see section 275.*Ante*, p. 1162. Sec. 566. Reasonable stipulations, when implied.— Reasonable stipulations, when implied.Stipulations which are necessary to make a contract reasonable, or conformable to usage, are implied, in respect to matters concerning which the contract manifests no contrary intention. Sec. 567. Necessary incidents implied.— Necessary incidents implied.All things that in law or usage are considered as incidental to a contract, or as necessary 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. Cross Reference Incident follows principal, see sections 280 and 1728.*Ante*, p. 1163; *post*, p. 1346. Sec. 568. Time of performance of contract.— Time of performance.If no time is specified for the performance of an act required to be performed, 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 immediately upon the thing to be done being exactly ascertained. Cross Reference Delay in, where time not of essence, see section 360.*Ante*, p. 1173. Sec. 569. When joint and several.— Joint and several.Where all the parties who unite in a promise receive some benefit from the consideration, whether past or present, their promise is presumed to be joint and several. Sec. 570. Same.— A promise, made in the singular number, but executed by several persons, is presumed to be joint and several. Cross Reference Contracts, joint and several, see sections 427 et seq.*Ante*, p. 1182. Sec. 571. Executed and executory contracts, what.— Executed and executory contracts.An executed contract is one, the object of which is fully performed. All others are executory. CHAPTER 31.— UNLAWFUL CONTRACTSUNLAWFUL CONTRACTS. Sec. 572. What is unlawful.— Defined.That is not lawful which is: 1. Contrary to an express provision of law; 2. Contrary to the policy of express law, though not expressly prohibited; or, 3. Otherwise contrary to good morals. Cross References Conditions, when void, see sections 219 to 221.*Ante*, p. 1155. Contract obtained through duress, menace, fraud, undue influence, or mistake, see section 497.*Ante*, p. 1192. Contracts in restraint of marriage, see section 578.*Post*, p. 1201. Contracts in restraint of trade, see section 576.*Post*, p. 1201. Duress, see section 499.*Ante*, p. 1192. Fraud, see sections 501 et seq.*Ante*, p. 1192. Menace, see section 500.*Ante*, p. 1192. Mistake, see sections 506 et seq.*Ante*, p. 1193. Undue influence, see section 505.*Ante*, p. 1193. 1201 Sec. 573. Certain contracts unlawful.— All contractsUnlawful contracts. which have for their object, directly or indirectly, to exempt any one from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law. Cross References Carrier can not exempt himself acts, see section 963.*Post*, p. 1256. Fraud, see sections 501 et seq.*Ante*, p. 1192. Sec. 574. Contract fixing damages, void.— Every contract byContract fixing damages, void. 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 section 575. Sec. 575. Exception.— The parties to a contract may agree thereinException. upon an amount which shall be presumed to be the amount of damage sustained by a breach thereof, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage. Sec. 576. Contract in restraint of trade, void.— Every contractContract in restraint of trade, void. by which any one is restrained from exercising a lawful profession, trade, or business of any kind, otherwise than is provided by sections 577 and 578, is to that extent void. Sec. 577. Exceptions in favor of partnership arrangements.— 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. Sec. 578. Contract in restraint of marriage, void.— Contract in restraint of marriage, void.Every contract in restraint of the marriage of any person, other than a minor, is void. Cross Reference Conditions in restraint of marriage, see section 220.*Ante*, p. 1156. CHAPTER 32.— EXTINCTION OF CONTRACTSEXTINCTION OF CONTRACTS. in generalIn general. Sec. 579. Contract, how extinguished.— How extinguished.A contract may be extinguished in like manner with any other obligation, and also in the manner prescribed by this chapter. Cross Reference Cancellation of instruments, see sections 1648 et seq.*Post*, p. 1337. rescissionRescission. Sec. 580. Rescission extinguishes contract.— Contract extinguished by.A contract is extinguished by its rescission. Sec. 581. When party may rescind.— 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 with the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested with such party; 1202 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; 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. Cross References Cancellation of instruments, see sections 1648 et seq.*Post*, p. 1337. Contract not free, when obtained by mistake, duress, menace, fraud, or undue influence, see section 497.*Ante*, p. 1192. False representation, rescission of insurance policy for, see section 1189.*Post*, p. 1283. Falsity of warranty, rescission of insurance policy for, see section 1178.*Post*, p. 1282. Rescission, see sections 1645 et seq.*Post*, p. 1337. Stipulation against right to rescind, see section 582. Violation of material warranty, rescission of insurance policy for, see section 1214.*Post*, p. 1285. Sec. 582. When stipulations against right to rescind do not defeat it.— Stipulations against right to rescind.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. Sec. 583. Rescission, how effected.— Rescission, how effected.Rescission, when not effected by consent, can be accomplished only by the use, on the part of the party rescinding, of reasonable diligence to comply with the following rules: 1. He must rescind promptly, upon discovering the facts which entitle him to rescind, if he is free from duress, 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. Cross Reference Rescission of contracts, see sections 1645 to 1647.*Post*, p. 1337. Alteration and cancellation.alteration and cancellation Sec. 584. Alteration of verbal contract.— Alteration of verbal contract.A contract not in writing may be altered in any respect by consent of the parties, in writing, without a new consideration, and is extinguished thereby to the extent of the new alteration. Sec. 585. Written contracts, how modified.— 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. Cross References Cancellation of contracts, see sections 1648 et seq.*Post*, p. 1337. Parol evidence to alter writings, see section 550.*Ante*, p. 1198. Sec. 586. Extinction by cancellation, etc.— 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. Sec. 587. Extinction by unauthorized alteration.— By unauthorized alteration.The intentional destruction, cancellation, or material alteration of a written 1203contract, 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. Sec. 588. Alteration of duplicate, not to prejudice.— Alteration of duplicate.Where a contract is executed in duplicate, an alteration or destruction of one copy, while the other exists, is not within the provisions of section 587. CHAPTER 33.— OBLIGATIONS IMPOSED BY LAWOBLIGATIONS IMPOSED BY LAW. Sec. 589. Abstinence from injury.— Abstinence from injury.Every person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his rights. Sec. 590. Fraudulent deceit.— Fraudulent deceit.One who willfully deceives another Fraudulent deceit. with intent to induce him to alter his position to his injury, or risk, is liable for any damage which he thereby suffers. Cross Reference Fraud, see sections 501 et seq.*Ante*, p. 1192. Sec. 591. Deceit, what.— “Deceit,” defined.A deceit, within the meaning of section“Deceit,” defined. 590, is either: 1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true; 2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true; 3. The suppression of a fact, by one who is bound to disclose it, or who gives information of 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. Cross Reference Fraud, actual or constructive, see sections 501 et seq.*Ante*, p. 1192. Sec. 592. Deceit upon the public, etc.— Deceit upon the public, etc.One who practices a deceit with intent to defraud the public, or a particular class of persons, is deemed to have intended to defraud every individual in that class, who is actually misled by the deceit. Sec. 593. Restoration of thing wrongfully acquired.— Restoration of thing wrongfully acquired.One who obtains a thing without the consent of its owner, or by a consent afterwards rescinded, or by an unlawful exaction which the owner could not at the time prudently refuse, must restore it to the person from whom it was thus obtained, unless he has acquired a title thereto superior to that of such other person, or unless the transaction was corrupt and unlawful on both sides. Sec. 594. When demand necessary.— When demand necessary.The restoration required by section 593 must be made without demand, except where a thing is obtained by mutual mistake, in which case the party obtaining the thing is not bound to return it until he has notice of the mistake. Sec. 595. Responsibility for willful acts, negligence, etc.— Responsibility for willful acts, negligence, etc.Every one is responsible, not only for the result of his willful 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 brought the injury upon himself. Want of ordinary care on the part of the injured person shall not bar a recovery, but the damages shall be diminished by the court or jury in proportion to the want of ordinary care attributable to such person. The extent of liability in the cases covered by this section is defined by the chapter on compensatory relief. 1204 Cross Reference Compensatory relief, see sections 1597 et seq.*Post*, p. 1330. Sec. 596. Other obligations.— Other obligations.*Ante*, pp. 1125–1178.Other obligations are prescribed by chapters 2 to 26 of this code. CHAPTER 34.— SALES OF GOODSSALES OF GOODS. Note.—This chapter was derived from the Uniform Sales Act. Sec. 597. Contracts to sell and sales.—1. Contracts to sell and sales.A contract to sell goods is a contract whereby the seller agrees to transfer the property in goods to the buyer for a consideration called the price. 2. A sale of goods is an agreement whereby the seller transfers the property in goods to the buyer for a consideration called the price. 3. A contract to sell or a sale may be absolute or conditional. 4. There may be a contract to sell or a sale between one part owner and another. Sec. 598. Capacity: liabillties for necessaries.— Capacity; liabilities for necessaries.Capacity to buy and sell is regulated by the general law concerning capacity to contract, and to transfer and acquire property. Where necessaries are sold and delivered to an infant, or to a person who by reason of mental incapacity or drunkenness is incompetent to contract, he must pay a reasonable price therefor. Necessaries in this section mean goods suitable to the condition in life of such infant or other person, and to his actual requirements at the time of delivery. Sec. 599. Form of contract or sale.— Form of contract or sale.Subject to the provisions of this chapter and of any statute in that behalf, a contract to sell or a sale may be made in writing (either with or without seal), or by word of mouth, or partly in writing and partly by word of mouth, or may be inferred from the conduct of the parties. Sec. 600. Statute of frauds.—Statute of frauds.A contract to sell or a sale of any goods or choses in action of the value of $50 or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf. 2. The provisions of this section apply to every such contract or sale, notwithstanding that the goods may be intended to be delivered at some future time or may not at the time of such contract or sale be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery; but if the goods are to be manufactured by the seller especially for the buyer and are not suitable for sale to others in the ordinary course of the seller’s business, the provisions of this section shall not apply. 3. “Acceptance” under.There is an acceptance of goods within the meaning of this section when the buyer, either before or after delivery of the goods, expresses by words or conduct his assent to becoming the owner of those specific goods. Cross Reference What contracts must be written, in general, see section 541.*Ante*, p. 1197. Sec. 601. Existing and future goods.— 1. Existing and future goods.The goods which form the subject of a contract to sell may be either existing goods, owned or possessed by the seller, or goods to be manufactured or acquired by 1205the seller after the making of the contract to sell, in this chapter called “future goods.” 2. There may be a contract to sell goods, the acquisition of which by the seller depends upon a contingency which may or may not happen. 3. Where the parties purport to effect a present sale of future goods, the agreement operates as a contract to sell the goods. Sec. 602. Undivided shares.— 1. There may be a contract to sell orUndivided shares. a sale of an undivided share of goods. If the parties intend to effect a present sale, the buyer, by force of the agreement, becomes an owner in common with the owner or owners of the remaining shares. 2. In the case of fungible goods, there may be a sale of an undividedFungibles. share of a specific mass, though the seller purports to sell and the buyer to buy a definite number, weight or measure of the goods in the mass, and though the number, weight or measure of the goods in the mass, is undetermined. By such a sale the buyer becomes owner in common of such a share of the mass as the number, weight, or measure bought bears to the number, weight, or measure of the mass. If the mass contains less than the number, weight, or measure bought, the buyer becomes the owner of the whole mass and the seller is bound to make good the deficiency from similar goods unless a contrary intent appears. Sec. 603. Destruction of goods sold.— 1. Where the partiesDestruction of goods sold. purport to sell specific goods, and the goods without the knowledge of the seller have wholly perished at the time when the agreement is made, the agreement is void. 2. Where the parties purport to sell specific goods, and the goods without the. knowledge of the seller have perished in part or have wholly or in a material part so deteriorated in quality as to be substantially changed in character, the buyer may at his option treat the sale—
(a)As avoided, or
(b)As transferring the property in all of the existing goods or in so much thereof as nave not deteriorated, and as binding the buyer to pay the full agreed price if the sale was indivisible, or to pay the agreed price for the goods in which the property passes if the sale was divisible. Sec. 604. Destruction of goods contracted to be sold.— 1. Destruction of, contracted to be sold.Where there is a contract to sell specific goods, and subsequently, but before the risk passes to the buyer, without any fault on the part of the seller or the buyer, the goods wholly perish, the contract is thereby avoided. 2. Where there is a contract to sell specific goods, and subsequently, but before the risk passes to the buyer, without any fault of the seller or the buyer, part of the goods perish or the whole or a material part of the goods so deteriorate in quality as to be substantially changed in character, the buyer may at his option treat the contract—
(a)As avoided, or
(b)As binding the seller to transfer the property in all of the existing goods, or in so much thereof as have not deteriorated, and as binding the buyer to pay the full agreed price if the contract was indivisible, or to pay the agreed price for so much of the goods as the seller, by the buyer’s option, is bound to transfer if the contract was divisible. Sec. 605. Definition and ascertainment of price.— 1. Ascertainment of price.The price may be fixed by the contract, or may be left to be fixed in such manner as may be agreed, or it may be determined by the course of dealing between the parties. 1206 2. The price may be made payable in any personal property. 3. Where transferring or promising to transfer any interest in real estate constitutes the whole or part of the consideration for transferring or for promising to transfer the property in goods, this chapter shall not apply. 4. Where the price is not determined in accordance with the foregoing provisions the buyer must pay a reasonable price. What is a reasonable price is a question of fact dependent on the circumstances of each particular case. Sec. 606. Sale at a valuation.— 1. Sale at a valuation.Where there is a contract to sell or a sale of goods at a price or on terms to be fixed by a third person, and such third person without fault of the seller or the buyer, can not or does not fix the price or terms, the contract or the sale is thereby avoided; but if the goods or any part thereof have been delivered to and appropriated by the buyer he must pay a reasonable price therefor. 2. Where such third person is prevented from fixing the price or terms by fault of the seller or the buyer, the party not in fault may have such remedies against the party in fault as are allowed by the appropriate parts of this chapter. Sec. 607. Effect of condition.— 1. Effect of condition.Where the obligation of either party to a contract to sell or a sale is subject to any condition which is not performed, such party may refuse to proceed with the contract or sale or he may waive performance of the condition. If the other party has promised that the condition should happen or be performed, such first mentioned party may also treat the nonperformance of the condition as a breach of warranty. 2. Where the property in the goods has not passed, the buyer may treat the fulfillment by the seller of his obligation to furnish goods as described and as warranted expressly or by implication in the contract to sell as a condition of the obligation of the buyer to perform his promise to accept and pay for the goods. Sec. 608. Definition of express warranty.— Express warranty.Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon. No affirmation of the value of the goods, nor any statement purporting to be a statement of the seller’s opinion only shall be construed as a warranty. Sec. 609. Implied warranties of title.— Implied warranties.In a contract to sell or a sale, unless contrary intention appears, there is 1. An implied warranty on the part of the seller that in case of a sale he has a right to sell the goods, and that in case of a contract to sell lie will have a right to sell the goods at the time when the property is to pass; 2. An implied warranty that the buyer shall have and enjoy quiet possession of the goods as against any lawful claims existing at the time of the sale; 3. An implied warranty that the goods shall be free at the time of the sale from any charge or encumbrance in favor of any third person, not declared or known to the buyer before or at the time when the contract or sale is made. 4. This section shall not, however, be held to render liable a marshal, auctioneer, mortgagee or other person professing to sell by virtue of authority in fact or law goods in which a third person has a legal or equitable interest. Sec. 610. Implied warranty in sale by description.— When sale by description.Where there is a contract to sell or a sale of goods by description, there is an implied warranty that the goods shall correspond with the descrip-1207tion and if the contract or sale be by sample, as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description. Sec. 611. Implied warranties of quality.— Subject to theImplied warranties of quality. provisions of this chapter and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows: 1. Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose. 2. Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchantable quality. 3. If the buyer has examined the goods, there is no implied warranty as regards defects which such examination ought to have revealed. 4. In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose. 5. An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade. 6. An express warranty or condition does not negative a warranty or condition implied under this chapter unless inconsistent therewith. Sec. 612. Implied warranties in sale by sample.— When sale by sample.In the case of a contract to sell or a sale by sample:
(a)There is an implied warranty that the bulk shall correspond with the sample in quality.
(b)There is an implied warranty that the buyer shall have a reasonable opportunity of comparing the bulk with the sample, except so far as otherwise provided in subdivision 3 of section 643.*Post*, p. 1214.
(c)If the seller is a dealer in goods of that kind, there is an implied warranty that the goods shall be free from any defect rendering them unmerchantable which would not be apparent on reasonable examination of the sample. Sec. 613. No property passes until goods are ascertained.— No property passes until goods are ascertained.No property passes Where there is a contract to sell unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascertained, but property in an undivided share of ascertained goods*Ante*, p. 1205. may be transferred as provided in section 602. Sec. 614. Property in specific goods passes when parties so intend.— 1. Passing of property in specific goods.Where there is a contract to sell specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. 2. For the purpose of ascertaining the intention of the parties, regard shall be had to the terms of the contract, the conduct of the parties, usages of trade, and the circumstances of the case. Sec. 615. Rules for ascertaining intention.— Rules for ascertaining intention.Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer: Rule 1. Where there is an unconditional contract to sell specific goods, in a deliverable state, the property in the goods passes to the buyer when the contract is made and it is immaterial whether the time of payment, or the time of delivery, or both, be postponed. 1208 Rule 2. Where there is a contract to sell specific goods and the seller is bound to do something to the goods, for the purpose of putting them into a deliverable state, the property does not pass until such thing be done. Rule 3. 1. When goods are delivered to the buyer “on sale or return,” or on other terms indicating an intention to make a present sale; but to give the buyer an option to return the goods instead of paying the price, the property passes to the buyer on delivery, but he may revest the property in the seller by returning or tendering the goods within the time fixed in the contract, or, if no time has been fixed, within a reasonable time. 2. When goods are delivered to the buyer on approval or on trial or on satisfaction, or other similar terms, the property therein passes to the buyer—
(a)When he signifies his approval or acceptance to the seller or does any other act adopting the transaction;
(b)If he does not signify his approval or acceptance to the seller, but retains the goods without giving notice of rejection, then if a time has been fixed for the return of the goods, on the expiration of such time, and, if no time has been fixed, on the expiration of a reasonable time. What is a reasonable time is a question of fact. Rule 4. 1. Where there is a contract to sell unascertained or future goods by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer, or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be expressed or implied, and may be given either before or after the appropriation is made. 2. Where, in pursuance of a contract to sell, the seller delivers the goods to the buyer, or to a carrier or other bailee (whether named by the buyer or not) for the purpose of transmission to or holding for the buyer, he is presumed to have unconditionally appropriated the goods to the contract, except in the cases provided for in the next rule and in section 616. This presumption is applicable, although by the terms of the contract the buyer is to pay the price before receiving delivery of the goods and the goods are marked with the words “collect on delivery” or their equivalents. Rule 5. If the contract to sell requires the seller to deliver the goods to the buyer, or at a particular place, or to pay the freight or cost of transportation to the buyer, or to a particular place, the property does not pass until the goods have been delivered to the buyer or reached the place agreed upon. Sec. 616. Reservation of right of possession or property when goods are shipped.— 1. Reservation of right of possession, etc., when goods shipped.Where there is a contract to sell specific goods, or where goods are subsequently appropriated to the contract, the seller may, by the terms of the contract or appropriation, reserve the right of possession or property in the goods until certain conditions have been fulfilled. The right of possession or property may be thus reserved notwithstanding the delivery of the goods to the buyer or to a carrier or other bailee for the purpose of transmission to the buyer. 2. Where goods are shipped, and by the bill of lading the goods are deliverable to the seller or 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 of lading 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. 1209 3. Where goods are shipped, and by the bill of lading the goods are deliverable to the order of the buyer or of his agent, but possession of the bill of lading is retained by the seller or his agent, the seller thereby reserves a right to the possession of the goods as against the buyer. 4. Where the seller of goods draws on the buyer for the price and transmits the bill of exchange and bill of lading together to the buyer to secure acceptance or payment of the bill of exchange, the buyer is bound to return the bill of lading if he does not honor the bill of exchange, and if he wrongfully retains the bill of lading he acquires no added right thereby. If, however, the bill of lading provides that the goods are deliverable to the buyer or to the order of the buyer, or is indorsed in blank, or to the buyer by the consignee named therein, one who purchases in good faith, for value, the bill of lading, or goods from the buyer will obtain the property in the goods, although the bill of exchange has not been honored, provided that such purchaser has received delivery of the bill of lading indorsed by the consignee named therein, or of the goods, without notice of the facts making the transfer wrongful. Sec. 617. Sale by auction.— In the case of sale by auction—Sale by auction. 1. Where goods are put up for sale by auction in lots each lot is the subject of a separate contract of sale. 2. A sale by auction is complete when the auctioneer announces its completion by the fall of the hammer, or in other customary manner. Until such announcement is made, any bidder may retract his bid; and the auctioneer may withdraw the goods from sale unless the auction has been announced to be without reserve. 3. A right to bid may be reserved expressly by or on behalf of the seller. 4. Where notice has not been given that a sale by auction is subject to a right to bid on behalf of the seller, it shall not be lawful for the seller to bid himself or to employ or induce any person to bid at such sale on his behalf, or for the auctioneer to employ or induce any person to bid at such sale on behalf of the seller or knowingly to take any bid from the seller or any person employed by him. Any sale contravening this rule may be treated as fraudulent by the buyer. Sec. 618. Risk of loss.— Unless otherwise agreed, the goodsRisk of loss. remain at the seller’s risk until the property therein is transferred to the buyer, but when the property therein is transferred to the buyer the goods are at the buyer’s risk whether delivery has been made or not, except that—
(a)Where delivery of goods has been made to the buyer, or to a bailee for the buyer, in pursuance of the contract and the property in the goods has been retained by the seller merely to secure performance by the buyer of his obligations under the contract, the goods are at the buyer’s risk from the time of such delivery.
(b)Where delivery has been delayed through the fault of either buyer or seller the goods are at the risk of the party in fault as regards any loss which might not have occurred but for such fault. Sec. 619. Sale by person not the owner.— 1. Subject to theSale by person not the owner. provisions of this chapter, where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell. 2. Nothing in this chapter, however, shall affect—
(a)The provisions of any factors’ acts, recording acts,No effect on factors, recording, etc., acts. or any enactment enabling the apparent owner of goods to dispose of them as if he were the true owner thereof. 1210
(b)Sales under order of court.The validity of any contract to sell or sale under any special common law or statutory power of sale or under the order of a court of competent jurisdiction. Sec. 620. Sale by one having a voidable title.— When title voidable.Where the seller of goods has a voidable title thereto, but his title has not been avoided at the time of the sale, the buyer acquires a good title to the goods, provided he buys them in good faith, for value, and without notice of the seller’s defect of title. Sec. 621. Sale by seller in possession of goods already sold.— When in possession of goods already sold.Where a person having sold goods continues in possession of the goods, or of negotiable documents of title to the goods, the delivery or transfer by that person, or by an agent acting for him, of the goods or documents of title under any sale, pledge, or other disposition thereof, to any person receiving and paying value for the same in good faith and without notice of the previous sale, shall have the same effect as if the person making the delivery or transfer were expressly authorized by the owner of the goods to make the same. Sec. 622. Creditors’ rights against sold goods in seller’s possession.— Creditors’ rights against sold goods.Where a person having sold goods continues in possession of the goods, or of negotiable documents of title to the goods and such retention of possession is fraudulent in fact or is deemed fraudulent under any rule of law, a creditor or creditors of the seller may treat the sale as void. Sec. 623. Definition of negotiable documents of title.— Negotiable documents of title.A document of title in which it is stated that the goods referred to therein will be delivered to the bearer, or to the order of any person named in such document is a negotiable document of title. Sec. 624. Negotiation of negotiable documents by delivery.— Negotiation by delivery.A negotiable document of title may be negotiated by delivery—
(a)Where, by the terms of the document, the carrier, warehouseman, or other bailee issuing the same undertakes to deliver the goods to the bearer, or
(b)Where, by the terms of the document, the carrier, warehouseman, or other bailee issuing the same undertakes to deliver the goods to the order of a specified person, and such person or a subsequent indorsee of the document has indorsed it in blank or to bearer. Where, by the terms of a negotiable document of title, the goods are deliverable to bearer or where a negotiable document of title has been indorsed in blank or to bearer, any holder may indorse the same to himself or to any other specified person, and in such case the document shall thereafter be negotiated only by the indorsement of such indorsee. Sec. 625. Negotiation of negotiable documents by indorsement.— By indorsement.A negotiable document of title may be negotiated by the indorsement of the person to whose order the goods are by the terms of the document deliverable. Such indorsement may be in blank, to bearer or to a specified person. If indorsed to a specified person, it may be again negotiated by the indorsement of such person in blank, to bearer or to another specified person. Subsequent negotiation may be made in like manner. Sec. 626. Negotiable documents of title marked “not negotiable.”— Negotiable documents marked “not negotiable.”If a document of title which contains an undertaking by a carrier, warehouseman, or other bailee to deliver the goods to the bearer, to a specified person or order, or to the order of a specified person, or which contains words of like import, has placed upon it the words “not negotiable,” “nonnegotiable,” or the like, such a document may nevertheless be negotiated by the holder and is a negotiable document of title within the meaning of this chapter.1211 But nothing in this chapter contained shall be construed as limiting or defining the effect upon the obligations of the carrier, warehouseman, or other bailee issuing a document of title of placing thereon the words“not negotiable,” “nonnegotiable,” or the like. Sec. 627. Transfer of nonnegotiable documents.— Transfer of nonnegotiable documents.A document of title which is not in such form that it can be negotiated by delivery may be transferred by the holder by delivery to a purchaser or donee. A nonnegotiable document can not be negotiated, and the indorsement of such a document gives the transferee no additional right. Sec. 628. Who may negotiate a document.— A negotiableWho may negotiate a document. document of title may be negotiated—
(a)By the owner thereof, or
(b)By any person to whom the possession or custody of the document has been entrusted by the owner, if, by the terms of the document the bailee issuing the document undertakes to deliver the goods to the order of the person to whom the possession or custody of the document has been entrusted, or if at the time of such entrusting the document is in such form that it may be negotiated by delivery. Sec. 629. Rights of person to whom document has been negotiated.— Rights of person to whom negotiated.A person to whom a negotiable document of title has been duly negotiated acquires thereby—
(a)Such title to the goods as the person negotiating the document to him had or had ability to convey to a purchaser in good faith for value and also such title to the goods as the person to whose order the goods were to be delivered by the terms of the document had or had ability to convey to a purchaser in good faith for value, and
(b)The direct obligation of the bailee issuing the document to hold possession of the goods for him according to the terms of the document as fully as if such bailee had contracted directly with him. Sec. 630. Rights of person to whom document has been transferred.— To whom transferred.A person to whom a document of title 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 document is nonnegotiable, such person also acquires the right to notify the bailee who issued the document of the transfer thereof, and thereby to acquire the direct obligation of such bailee to hold possession of the goods for him according to the terms of the document. Prior to the notification of such bailee by the transferor or transferee of a nonnegotiable document of title, the title of the transferee to the goods and the right to acquire the obligation of such bailee may be defeated by the levy of an attachment of execution upon the goods by a creditor of the transferor, or by a notification to such bailee by the transferor or a subsequent purchaser from the transferor of a subsequent sale of the goods by the transferor. Sec. 631. Transfer of negotiable document without indorsment.— Transfer without indorsement.Where a negotiable document of title is transferred for value by delivery, and the indorsement of the transferor is essential for negotiation, the transferee acquires a right against the transferor to compel him to indorse the document unless a contrary intention appears. The negotiation shall take effect as of the time when the indorsement is actually made. Sec. 632. Warranties on sale of documents.— A person whoWarranties. for warranties. value negotiates or transfers a document of title by indorsement or 1212delivery, including one who assigns for value a claim secured by a document of title unless a contrary intention appears, warrants:
(a)That the document is genuine;
(b)That he has a legal right to negotiate or transfer it;
(c)That he has knowledge of no fact which would impair the validity or worth of the document; and
(d)That he has a right to transfer the title to the goods and that the goods are merchantable or fit for a particular purpose, whenever such warranties would have been implied if the contract of the parties had been to transfer without a document of title the goods represented thereby. Sec. 633. Indorser not a guarantor.— Indorser not a guarantor.The indorsement of a document of title shall not make the indorser liable for any failure on the part of the bailee who issued the document or previous indorsers thereof to fulfill their respective obligations. Sec. 634. When negotiation not impaired by fraud, mistake or duress.— Fraud, mistake, and duress.The validity of the negotiation of a negotiable document of title is not impaired by the fact that the negotiation was a breach of duty on the part of the person making the negotiation, or by the fact that the owner of the document was induced by fraud. mistake or duress to entrust the possession or custody thereof to such person, if the person to whom the document was negotiated or a person to whom the document was subsequently negotiated paid value therefor, without notice of the breach of duty, or fraud, mistake or duress. Sec. 635. Attachment or levy upon goods for which a negotiable document has been issued.— Attachment or levy upon goods when negotiable document issued.If goods are delivered to a bailee by the owner or by a person whose act in conveying the title to them to a purchaser in good faith for value would bind the owner and a negotiable document of title is issued for them they can not thereafter, while in the possession of such bailee, be attached by garnishment or otherwise be levied upon under an execution unless the document be first surrendered to the bailee or its negotiation enjoined. The bailee shall in no case be compelled to deliver up the actual possession of the goods until the document is surrendered to him or impounded by the court. Sec. 636. Creditors’ remedies to reach negotiable documents.— Creditors’ remedies.A creditor whose debtor is the owner of a negotiable document of title shall be entitled to such aid from courts of appropriate jurisdiction by injunction and otherwise in attaching such document or in satisfying the claim by means thereof as is allowed at law or in equity in regard to property which can not be readily attached or levied upon by ordinary legal process. Sec. 637. Seller must deliver and buyer accept goods.— Duty of delivery and acceptance.It is the duty of the seller to deliver the goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract to sell or sale. Sec. 638. Delivery and payment are concurrent conditions.— Delivery and payment concurrent conditions.Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions; that is to say, the seller must be ready and willing to give possession of the goods to the buyer in exchange for the price and the buyer must be ready and willing to pay the price in exchange for possession of the goods. Sec. 639. Place, time, and manner of delivery.— 1. Place, time, and manner of.Whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer is a question depending in each case on the contract, express or implied, between the parties. Apart from any such contract, express or implied, or usage of trade to the contrary, the place of delivery is the seller’s place of business if he have one, 1213and if not his residence; but in case of a contract to sell or a sale of specific goods, which to the knowledge of the parties when the contract or the sale was made were in some other place, then that place is the place of delivery. 2. Where by a contract to sell or a sale the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time. 3. Where the goods at the time of sale are in the possession of a third person, the seller has not fulfilled his obligation to deliver to the buyer unless and until such third person acknowledges to the buyer that he holds the goods on the buyer’s behalf; but as against all others than the seller the buyer shall be regarded as having received delivery from the time when such third person first has notice of the sale. Nothing in this section, however, shall affect the operation of the issue or transfer of any document of title to goods. 4. Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour. What is a reasonable hour is a question of fact. 5. Unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state must be borne by the seller. Sec. 640. Delivery of wrong quantity.— 1. When wrong quantity.Where the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may reject them, but if the buyer accepts or retains the goods so delivered, knowing that the seller is not going to perform the contract in full, he must pay for them at contract rate. If, however, the buyer has used or disposed of the goods delivered before he knows that the seller is not going to perform his contract in full, the buyer shall not be liable for more than the fair value to him of the goods so received. 2. Where the seller delivers to the buyer a quantity of goods larger than he contracted to sell, the buyer may accept the goods included in the contract and reject the rest, or he may reject the whole. If the buyer accepts the whole of the goods so delivered he must pay for them at the contract rate. 3. Where the seller delivers to the buyer the goods he contracted to sell mixed with goods of a different description not included in the contract. the buyer may accept the goods which are in accordance with the contract and reject the rest, or he may reject the whole. 4. The provisions of this section are subject to any usage of trade, special agreement, or course of dealing between the parties. Sec. 641. Delivery in installments.— 1. Unless otherwise agreed, the buyer of goods is not bound to accept delivery thereof by installments. 2. Delivery in installments.Where there is a contract to sell goods to be delivered by stated installments, which are to be separately paid for, and the seller makes detective deliveries in respect of one or more installments, or the buyer neglects or refuses to take delivery of or pay for one or more installments, it depends in each case on the terms of the contract and the circumstances of the case whether the breach of contract is so material as to justify the injured party in refusing to proceed further and suing for damages for breach of the entire contract, or whether the breach is severable, giving rise to a claim for compensation, but not to a right to treat the whole contract as broken. Sec. 642. Delivery to a carrier on behalf of the buyer.— 1. To carrier.Where, in pursuance of a contract to sell or a sale, the seller is authorized or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer is deemed to be a delivery of 1214*Ante*, p. 1208.the goods to the buyer, except in the cases provided for in section 615, rule five, or unless a contrary intent appears. 2. Unless otherwise authorized by the buyer, the seller must make such contract with the carrier on behalf of the buyer as may be reasonable, having regard to the nature of the goods and the other circumstances of the case. If the seller omit so to do, and the goods are lost or damaged in course of transit, the buyer may decline to treat the delivery to the carrier as a delivery to himself, or may hold the seller responsible in damages. 3. Unless otherwise agreed, where goods are sent by the seller to the buyer under circumstances in which the seller knows or ought to know that it is usual to insure, the seller must give such notice to the buyer as may enable him to insure them during their transit, and, if the seller fails to do so, the goods shall be deemed to be at his risk during such transit. Sec. 643. Right to examine the goods.— 1. Right to examine goods.Where goods are delivered to the buyer, which he has not previously examined, he is not deemed to have accepted them unless and until he has had a reasonable opportunity to examine them for the purpose of ascertaining whether they are in conformity with the contract. 2. Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract. 3. Where goods are delivered to a carrier by the seller, in accordance with an order from or agreement with the buyer, upon the terms that the goods shall not be delivered by the carrier to the buyer until he has paid the price, whether such terms are indicated by marking the goods with the words “collect on delivery,” or otherwise, the buyer is not entitled to examine the goods before payment of the price in the absence of agreement permitting such examination. Sec. 644. What constitutes acceptance.— What constitutes acceptance.The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them. Sec. 645. Acceptance does not bar action for damages.— Acceptance not bar to action for damages.In the absence of express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract to sell or the sale. But, if, after acceptance of the goods, the buyer fails to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know, of such breach, the seller shall not be liable therefor. Sec. 646. Buyer is not bound to return goods wrongly delivered.— Return of goods wrongly delivered.Unless otherwise agreed, where goods are delivered to the buyer, and he refuses to accept them, having the right so to do, he is not bound to return them to the seller, but it is sufficient if he notifies the seller that he refuses to accept them. Sec. 647. Buyer’s liability for failing to accept delivery.— Liability for failure to accept delivery.When the seller is ready and willing to deliver the goods, and requests the buyer to take delivery, and the buyer does not within a reasonable time after such request take delivery of the goods, he is liable to the seller for any loss occasioned by his neglect or refusal to take delivery, and also for a reasonable charge for the care and custody of the goods. If the neglect or refusal of the buyer to take delivery 1215amounts to a repudiation or breach of the entire contract, the seller shall have the rights against the goods and on the contract hereinafter provided in favor of the seller when the buyer is in default. Sec. 648. Definition of unpaid seller.— 1. The seller of goods“Unpaid seller” defined. “Unpaid seller” is deemed to be an unpaid seller within the meaning of this chapter.
(a)When the whole of the price has not been paid or tendered.
(b)When a bill of exchange or other negotiable instrument has been received as conditional payment, and the condition on which it was received has been broken by reason of the dishonor of the instrument, the insolvency of the buyer, or otherwise. 2. In this part of this chapter the term “seller” includes an agent of the seller to whom the bill of lading has been indorsed, or a consignor or agent who has himself paid, or is directly responsible for, the price, or any other person who is in the position of a seller. Sec. 649. Remedies of an unpaid seller.— 1. Remedies of.Subject to the provisions of this chapter, notwithstanding that the property in the goods may have passed to the buyer, the unpaid seller of the goods, as such has
(a)A lien on the goods or right to retain them for the price while he is in possession of them;
(b)In case of the insolvency of the buyer, a right of stopping the goods in transitu after he has parted with the possession of them;
(c)A right of resale as limited by this chapter;
(d)A right to rescind the sale as limited by this chapter. 2. Where the property in goods has not passed to the buyer, the unpaid seller has, in addition to his other remedies, a right of withholding delivery similar to and coextensive with his rights of lien and stoppage in transitu where the property has passed to the buyer. Sec. 650. When right of lien may be exercised.— 1. When right of lien may be exercised.Subject to the provisions of this chapter, the unpaid seller of goods who is in possession of them is entitled to retain possession of them until payment or tender of the price in the following cases, namely:
(a)Where the goods have been sold without any stipulation as to credit;
(b)Where the goods have been sold on credit, but the term of credit has expired;
(c)Where the buyer becomes insolvent. 2. The seller may exercise his right of lien notwithstanding that he is in possession of the goods as agent or bailee for the buyer. Sec. 651. Lien after part delivery.— Lien after part delivery.Where an unpaid seller has made part delivery of the goods, he may exercise his right of lien on the remainder, unless such part delivery has been made under such circumstances as to show an intent to waive the lien or right of retention. Sec. 652. When lien is lost.— 1. The unpaid seller of goods losesLoss of lien. his lien thereon:
(a)When he delivers the goods to a carrier or other bailee for the purpose of transmission to the buyer without reserving the property in the goods or the right to the possession thereof;
(b)When the buyer or his agent lawfully obtains possession of the goods;
(c)By waiver thereof. 2. The unpaid seller of goods, having a lien thereon, does not lose his lien by reason only that he has obtained judgment or decree for the price of the goods. 1216 Sec. 653. Seller may stop goods on buyer’s insolvency.— Stoppage in transitu.Subject to the provisions of this chapter, when the buyer of goods is or becomes insolvent, the unpaid seller who has parted with the possession of the goods has the right of stopping them in transitu, that is to say, he may resume possession or the goods at any time while they are in transit, and he will then become entitled to the same rights in regard to the goods as he would have had if he had never parted with the possession. Sec. 654. When goods are in transit.— 1. Goods in transit.Goods are in transit within the meaning of section 653:
(a)From the time when they are delivered to a carrier by land or water, or other bailee for the purpose of transmission to the buyer, until the buyer, or his agent in that behalf, takes delivery of them from such carrier or other bailee;
(b)If the goods are rejected by the buyer, and the carrier or other bailee continues in possession of them, even if the seller has refused to receive them back. 2. Goods are no longer in transit within the meaning of section 653:
(a)If the buyer, or his agent in that behalf, obtains delivery of the goods before their arrival at the appointed destination;
(b)If, after the arrival of the goods at the appointed destination, the carrier or other bailee acknowledges to the buyer or his agent that he holds the goods on his behalf and continues in possession of them as bailee for the buyer or his agent; and it is immaterial that a further destination for the goods may have been indicated by the buyer;
(c)If the carrier or other bailee wrongfully refuses to deliver the goods to the buyer or his agent in that behalf. 3. If the goods are delivered to a ship chartered by the buyer, it is a question depending on the circumstances of the particular case whether they are in the possession of the master as a carrier or as agent of the buyer. 4. If part delivery of the goods has been made to the buyer, or his agent in that behalf, the remainder of the goods may be stopped in transitu, unless such part delivery has been made under such circumstances as to show an agreement with the buyer to give up possession of the whole of the goods. Sec. 655. Ways of exercising the right to stop.— 1. Manners of stoppage.The unpaid seller may exercise his right of stoppage in transitu either by obtaining actual possession of the goods or by giving notice of his claim to the carrier or other bailee in whose possession the goods are. Such notice may be given either to the person in actual possession of the goods or to his principal. In the latter case the notice, to be effectual, must be given at such time and under such circumstances that the principal, by the exercise of reasonable diligence, may prevent a delivery to the buyer. 2. When notice of stoppage in transitu is given by the seller to the carrier, or other bailee in possession of the goods, he must redeliver the goods to, or according to the directions of, the seller. The expenses of such delivery must be borne by the seller. If, however, a negotiable document of title representing the goods has been issued by the carrier or other bailee, he shall not be obliged to deliver or justified in delivering the goods to the seller unless such document is first surrendered for cancellation. Sec. 656. When and how resale may be made.— 1. Right of resale.Where the goods are of a perishable nature, or where the seller expressly reserves the right of resale in case the buyer should make default, or where the buyer has been in default in the payment of the price 1217an unreasonable time, an unpaid seller having a right of lien or having stopped the goods in transitu may resell the goods. He shall not therearter be liable to the original buyer upon the contract to sell or the sale or for any profit made by such resale, but may recover from the buyer damages for any loss occasioned by the breach of the contract or the sale. 2. Where a resale is made, as authorized in this section, the buyer acquires a good title as against the original buyer. 3. It is not essential to the validity of a resale that notice of an intention to resell the goods be given by the seller to the original buyer. But where the right to resell is not based on the perishable nature of the goods or upon an express provision of the contract or the sale, the giving or failure to give such notice shall be relevant in any issue involving the question whether the buyer had been in default an unreasonable time before the resale was made. 4. It is not essential to the validity of a resale that notice of the time and place of such resale should be given by the seller to the original buyer. 5. The seller is bound to exercise reasonable care and judgment in making a resale, and subject to this requirement may make a resale either by public or private sale. Sec. 657. When and how the seller may rescind the sale.— 1. Rescission.An unpaid seller having a right of lien or having stopped the goods in transitu, may rescind the transfer of title and resume the property in the goods, where he expressly reserved the right to do so in case the buyer should make default, or where the buyer has been in default in the payment of the price an unreasonable time. The seller shall not thereafter be liable to the buyer upon the contract to sell or the sale, but may recover from the buyer damages for any loss occasioned by the breach of the contract or the sale. 2. The transfer of title shall not be held to have been rescinded by an unpaid seller until he has manifested by notice to the buyer or by some other overt act an intention to rescind. It is not necessary that such overt act should be communicated to the buyer but the giving or failure to give notice to the buyer of the intention to rescind shall be relevant in any issue involving the question whether the buyer had been in default an unreasonable time before the right of rescission was asserted. Sec. 658. Effect of sale of goods subject to lien or stoppage in transitu.— Effect of sale of goods subject to lien or stoppage in transitu.Subject to the provisions of this chapter, the unpaid seller’s right of lien or stoppage in transitu is not affected by any sale, or other disposition of the goods which the buyer may have made, unless the seller has assented thereto. If, however, a negotiable document of title has been issued for goods, no seller’s lien or right of stoppage in transitu shall defeat the right of any purchaser for value in good faith to whom such document has been negotiated, whether such negotiation be prior or subsequent to the notification to the carrier, or other bailee who issued such document, of the seller’s claim to a lien or right of stoppage in transitu. Sec. 659. Action for the price.— 1. Action for price.Where, under a contract to sell or a sale, the property in the goods has passed to the buyer, and the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract or the sale, the seller may maintain an action against him for the price of the goods. 2. Where, under a contract to sell or a sale, the price is payable on a day certain, irrespective of delivery or of transfer of title, and the buyer wrongfully neglects or refuses to pay such price, the seller may maintain an action for the price, although the property in the goods has not passed, and the goods have not been appropriated to 1218the contract. But it shall be a defense to such an action that the seller at any time before judgment in such action has manifested an inability to perform the contract or the sale on his part or an intention not to perform it. 3. Although the property in the goods has not passed, if they can not readily be resold for a reasonable price, and if the provisions of subdivision four of section 660 are not applicable, the seller may offer to deliver the goods to the buyer, and if the buyer refuses to receive them, may notify the buyer that the goods are thereafter held by the seller as bailee for the buyer. Thereafter the seller may treat the goods as the buyer’s and may maintain an action for the price. Sec. 660. Action for damages for nonacceptance of the goods.— 1. For nonacceptance.Where the buyer wrongfully neglects or refuses to accept and pay for the goods, the seller may maintain an action against him for damages for nonacceptance. 2. The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the buyer’s breach of contract. 3. Where there is an available market for the goods in question, the measure of damages is, in the absence of special circumstances, showing proximate damage of a greater amount, the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted, or, if no time was fixed for acceptance, then at the time of the refusal to accept. 4. If, while labor or expense of material amount are necessary on the part of the seller to enable him to fulfill his obligations under the contract to sell or the sale, the buyer repudiates the contract or the sale, or notifies the seller to proceed no further therewith, the buyer shall be liable to the seller for no greater damages than the seller would have suffered if he did nothing toward carrying out the contract or the sale after receiving notice of the buyer’s repudiation or countermand. The profit the seller would have made if the contract or the sale had been fully performed shall be considered in estimating such damages. Sec. 661. When seller may rescind contract or sale.— When seller may rescind.Where the goods have not been delivered to the buyer, and the buyer has repudiated the contract to sell or sale, or has manifested his inability to perform his obligations thereunder, or has committed a material breach thereof, the seller may totally rescind the contract or the sale by giving notice of his election so to do to the buyer. Sec. 662. Action for converting or detaining goods.— Action for conversion, etc.Where the property in the goods has passed to the buyer and the seller wrongfully neglects or refuses to deliver the goods, the buyer may maintain any action allowed by law to the owner of goods of similar kind when wrongfully converted or withheld. Sec. 663. Action for failing to deliver goods.— 1. For failure to deliverWhere the property in the goods has not passed to the buyer, and the seller wrongfully neglects or refuses to deliver the goods, the buyer may maintain an action against the seller for damages for nondelivery. 2. The measure of damages is the loss directly and naturally resulting in the ordinary course of events from the seller’s breach of contract. 3. Where there is an available market for the goods in question, the measure of damages, in the absence of special circumstances showing proximate damages of a greater amount, is the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or, if no time was fixed, then at the time of the refusal to deliver. 1219 Sec. 664. Specific performance.— Where the seller has brokenSpecific performance. a contract to deliver specific or ascertained goods. a court having the powers of a court of equity may, if it thinks fit, on the application of the buyer, by its judgment or decree, direct that the contract shall be performed specifically, without giving the seller the option of retaining the goods on payment of daniages. The judgment or decree may be unconditional, or upon such terms and conditions as to daniages, payment of the price and otherwise, as to the court may seem just. Cross Reference Specific performance of obligations generally, see section 1634 et seq.*Post*, p. 1335. Sec. 655.11 So in original. Remedies for breach of warranty.— 1. Remedies for breach of warranty.Where there is a breach of warranty by the seller, the buyer may, at his election:
(a)Accept or keep the goods and set up against the seller the breach of warranty by way of recoupment in diminution or extinction of the price;
(b)Accept or keep the goods and maintain an action against the seller for damages for the breach of warranty;
(c)Refuse to accept the goods, if the property therein has not passed, and maintain an action against the seller for damages for the breach of warranty;
(d)Rescind the contract to sell or the sale and refuse to receive the goods, or if the goods have already been received, return them or offer to return them to the seller and recover the price or any part thereof which has been paid. 2. When the buyer has claimed and been granted a remedy in any one of these ways, no other remedy can thereafter be granted. 3. Where the goods have been delivered to the buyer, he can not rescind the sale if he knew of the breach of warranty when he accepted the goods, or if he fails to notify the seller within a reasonable time of the election to rescind, or if he fails to return or to offer to return the goods to the seller in substantially as good condition as they were in at the time the property was transferred to the buyer. But if deterioration or injury of the goods is due to the breach of warranty, such deterioration or injury shall not prevent the buyer from returning or offering to return the goods to the seller and rescinding the sale. 4. Where the buyer is entitled to rescind the sale and elects to do so, the buyer shall cease to be liable for the price upon returning or offering to return the goods. If the price or any part thereof has already been paid, the seller shall be liable to repay so much thereof as has been paid, concurrently with the return of the goods, or immediately after an offer to return the goods in exchange for repayment of the price. 5. Where the buyer is entitled to rescind the sale and elects to do so, if the seller refuses to acept an offer of the buyer to return the goods, the buyer shall thereafter be deemed to hold the goods as bailee for the seller. but subject to a lien to secure the repayment of any portion of the price which has been paid, and with the remedies for the enforcement of such lien allowed to an unpaid*Ante*, p. 1215. seller by section 649. 6. The measure of damages for breach of warranty is the loss directly and naturaIIy resulting, in the ordinary course of events, from the breach of warranty. 7. In the case of breach of warranty of quality, such loss, in the absence of special circumstances showing proximate damage of a greater amount, is the difference between the value of the goods at 1220the time of delivery to the buyer and the value they would have had if they had answered to the warranty. Sec. 666. Interest and special damages.— Interest and special damages.Nothing in this chapter shall affect the right of the buyer or the seller to recover interest or special damages in any case where by law interest or special damages may be recoverable, or to recover money paid where the consideration for the payment of it has failed. Sec. 667. Variation or implied obligations.— Variation of implied obligations.Where any right, duty, or liability would arise under a contract to sell or a sale by implication of law, it may be negatived, or varied by express agreement or by the course of dealing between the parties, or by customs, if the custom be such as to bind both parties to the contract or the sale. Sec. 668. Rights may be enforced by action.— Enforcement of rights.Where any right, duty, or liability is declared by this chapter, it may, unless otherwise by this chapter provided, be enforced by action. Sec. 669. Rule for cases not provided for by this chapter.— Rule for cases not provided for.In any case not provided for in this chapter, the rules of law and equity, including the law merchant, and in. particular the rules relating to the law of principal and agent and to the effect of fraud, misrepresentation, duress or coercion, mistake, or other invalidating cause, shall continue to apply to contracts to sell and sales of goods. Sec. 670. Provisions not applicable to mortgages.— Provisions not applicable to mortgages.The provisions of this chapter relating to contracts to sell and to sales do not apply, unless so stated, to any transaction in the form of a contract to sell or a sale which is intended to operate by way of mortgage, pledge, charge, or other security. Sec. 671. Definitions.— 1. Definitions.In this chapter, unless the context or subject matter otherwise requires: “Action” includes counterclaim, set-off, and suit in equity. “Buyer” means a person who buys or agrees to buy goods or any legal successor in interest of such person. “Defendant” includes a plaintiff against whom a right of set-off or counterclaim is asserted. “Delivery” means voluntary transfer of possession from one person to another. “Divisible contract to sell or sale” means a contract to sell or a sale in which by its terms the price for a portion or portions of the goods less than the whole is fixed or ascertainable by computation. “Document of title to goods” includes any bill of lading, dock warrant, warehouse receipt or order for the delivery of goods, or any other document used in the ordinary course of business in the sale or transfer of goods, as proof of the possession or control of the goods, or authorizing or purporting to authorize the possessor of the document to transfer or receive, either by indorsement or by delivery, goods represented by such document. “Fault” means wrongful act or default. “Fungible goods” means goods of which any unit is from its nature or by mercantile usage treated as the equivalent of any other unit. “Future goods” means goods to be manufactured or acquired by the seller after the making of the contract of sale. “Goods” includes all chattels personal other than things in action and money. The term includes emblements, industrial growing crops, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale. “Order” in sections of this chapter relating to documents of title means an order by indorsement on the document. 1221 “Person” includes a corporation or partnership or two or more persons having a joint or common interest. “Plaintiff” includes defendant asserting a right of set-off or counterclaim. “Property” means the general property in goods, and not merely a special property. “Purchases” includes taking as a mortgagee or as a pledgee. “Purchaser” includes mortgagee and pledgee. “Quality of goods” includes their state or condition. “Sale” includes a bargain and sale as well as a sale and delivery. “Seller” means a person who sells or agrees to sell goods, or any legal successor in the interest of such person. “Specific goods” means goods identified and agreed upon at the time a contract to sell or a sale is made. 2. A thing is done “in good faith” within the meaning of this chapter when it is in fact done honestly, whether it be done negligently or not. 3. A person is insolvent within the meaning of this chapter who either has ceased to pay his debts in the ordinary course of business or can not pay his debts as they become due, whether he has committed an act of bankruptcy or not, and whether he is insolvent within the meaning of the federal bankruptcy law or not. 4. Goods are in a “deliverable state” within the meaning of this chapter when they are in such a state that the buyer would, under the contract, be bound to take delivery of them. Sec. 672. Chapter does not apply to existing sales or contracts to sell.— Provisions not retroactive.None of the provisions of this chapter shall apply to any sale, or to any contract to sell, made prior to the taking effect of this chapter. Sec. 673. No repeal of warehouse laws.— No repeal of warehouse laws.*Post*, p. 1230.Nothing in this chapter shall be construed to repeal or limit any of the provisions of sections 731 to 784. CHAPTER 35.— CONDITIONAL SALESCONDITIONAL SALES. Note.—This chapter was derived from the uniform conditional sales act. Sec. 674. Definitions.— In this chapter “conditional sale” meansDefinitions.
(1)any contract for the sale of goods under which possession is delivered to the buyer and the property in the goods is to vest in the buyer at a subsequent time upon the payment of part or all of the price, or upon the performance of any other condition or the happening of any contingency; or
(2)any contract for the bailment or leasing of goods by which the bailee or lessee contracts to pay as compensation a sum substantially equivalent to the value of the goods, and by which it is agreed that the bailee or lessee is bound to become, or has the option of becoming the owner of such goods upon full compliance with the terms of the contract. “Buyer” means the person who buys or hires the goods covered by the conditional sale, or any legal successor in interest of such person. “Goods” means all chattels personal other than things in action and money, and includes emblements, industrial growing crops, and things attached to or forming a part of land which are agreed to be severed before sale or under the conditional sale. “Performance of the condition” means the occurrence of the event upon which the property in the goods is to vest in the buyer, whether such event is the performance of an act by the buyer or the happening of a contingency. 1222 “Person” includes an individual, partnership, corporation, and any other association. “Purchase” includes mortgage and pledge. “Purchaser” includes mortgagee and pledgee. “Seller” means the person who sells or leases the goods covered by the conditional sale, or any legal successor in interest of such person. Sec. 675. Primary rights of seller.— Primary rights of seller.The buyer shall be liable to the seller for the purchase price, or for installments thereof, as the same shall become due, and for breach of all promises made by him in the conditional sale contract, whether or not the property in the goods has passed to the buyer. Sec. 676. Primary rights of buyer.— Of buyer.The buyer shall have the right when not in default to retain possession of the goods, and he shall also have the right to acquire the property in the goods on the performance of the conditions of the contract. The seller shall be liable to the buyer for the breach of all promises and warranties, express or implied, made in the conditional sale contract, whether or not the property in the goods has passed to the buyer. Sec. 677. Conditional sales valid except as otherwise provided.— Validity of conditional sales.Every provision in a conditional sale reserving property in the seller after possession of the goods is delivered to the buyer, shall be valid as to all persons, except as hereinafter otherwise provided. Sec. 678. Conditional sales void as to certain persons.— When void.Every provision in a conditional sale reserving property in the seller shall be void as to any purchaser from or creditor of the buyer, who, without notice of such provision, purchases the goods or acquires by attachment or levy a lien upon them, before the contract or a copy thereof shall be filed as hereinafter provided. This section shall not apply to conditional sales of goods for resale. Sec. 679. Place of filing.— Filing of.The conditional sale contract or a copy thereof shall be filed in the office of the registrar of property of the Canal Zone. Sec. 680. Conditional sale of goods for resale.— Conditional sale of goods for resale.When goods are delivered under a conditional sale contract and the seller expressly or impliedly consents that the buyer may resell them prior to performance of the condition, the same shall be valid whether filed or not except that the reservation of property shall be void against purchasers from the buyer in good faith for value and without actual knowledge of the condition of such contract. Sec. 681. Filing.— Filing.The registrar of property shall mark upon contract or copy filed with him the day and hour of filing and shall file the contract or copy in his office for public inspection. He shall keep a separate book in which he shall enter the names of the seller and buyer, the date of the contract, the day and hour of filing, a brief description of the goods, the price named in the contract, and the date of cancellation thereof. Such book shall be indexed under the names of both seller and buyer. For filing and entering such contract or copy, or any assignment of such a contract, the registrar shall be entitled to a fee of 50 cents. Sec. 682. Refiling.— Refiling.The filing of conditional sale contracts provided for in sections 678 and 679 shall be valid for a period of three years only. The validity of the filing may in each case be extended for successive additional periods of one year from the date of refiling by filing a copy of the original contract within thirty days next preceding the expiration of each period, with a statement attached signed by the seller, showing that the contract is in force and the amount remaining to be paid thereon, Such copy, with 1223statement attached, shall be filed and entered in the same manner as a contract or copy filed and entered for the first time, and the registrar of property shall be entitled to a like fee as upon the original filing. Sec. 683. Cancellation of contract.— After the performanceCancellation of contract. of the condition, upon written demand delivered personally or by registered mail by the buyer or any other person having an interest in the goods, the seller shall execute, acknowledge, and deliver to the demandant a statement that the condition in the contract has been performed. If for ten days after such demand the seller fails to mail or deliver such a statement of satisfaction, he shall forfeit to the demandant $5 and be liable for all damages suffered. Upon presentation of such statement of satisfaction the registrar of property shall file the same and note the cancellation of the contract and the date thereof on the margin of the page where the contract has been entered. For filing and entering the statement of satisfaction the filing officer shall be entitled to a fee of 25 cents. Sec. 684. Prohibition of removal or sale without notice.— Prohibition of removal.Unless the contract otherwise provides, the buyer may, without the consent of the seller, remove the goods from the Canal Zone and sell, mortgage, or otherwise dispose of his interest in them: but prior to the performance of the condition, no such buyer shall remove the goods from the Canal Zone, except for temporary uses for a period of not more than thirty days, unless the buyer not less than thirty days before such removal shall give the seller personally or by registered mail written notice of the place to which the goods are to be removed and the approximate time of such intended removal; nor prior to the performance of the conditions shall the buyer sell,Sale without notice. mortgage, or otherwise dispose of his interest in the goods, unless he, or the person to whom he is about to sell, mortgage, or otherwise dispose of the same, shall notify the seller in writing personally or by registered mail of the name and address of the person to whom his interest in the goods is about to be sold, mortgaged, or otherwise transferred, not less than ten days before such sale, mortgage, or other disposal. If any buyer does so remove the goods, or does so sell, mortgage, or otherwise dispose of his interest in them without such notice or in violation of the contract, the seller may retake possession of the goods and deal with them as in case of default in payment of part or all of the purchase price. Sec. 685. Fraudulent injury, concealment, removal or sale.— Fraudulent injury, etc.When, prior to the performance of the condition, the buyer maliciously or with intent to defraud, shall injure, destroy, or conceal the goods, or remove them from the Canal Zone, without having given the notice required by section 684, or shall sell, mortgage, or otherwise dispose of such goods under claim of full ownership, he shall be guilty of a crime and upon conviction thereof shallPenalty. be imprisoned in jail for not more than one year or be fined not more than $500 or both. Sec. 686. Retaking possession.— When the buyer shall beRepossession. in default in the payment of any sum due under the contract, or in the performance of any other condition which the contract requires him to perform in order to obtain the property in the goods, or in the performance of any promise, the breach of which is by the contract expressly made a ground for the retaking of the goods, the seller may retake possession thereof. Unless the goods can be retaken without breach of the peace, they shall be retaken by legal process; but nothing herein shall be construed to authorize a violation of the criminal law. 1224 Sec. 687. Notice of intention to retake.— Notice of intention.Not more than forty nor less than twenty days prior to the retaking, the seller, if he so desires, may serve upon the buyer personally or by registered mail a notice of intention to retake the goods on account of the buyer’s default. The notice shall state the default and the period at the end of which the goods will be retaken, and shall briefly and clearly state what the buyer’s rights under this chapter will be in case they are retaken. If the notice is so served and the buyer does not perform the obligations in which he has made default before the day set for retaking, the seller may retake the goods and hold them subject to the provisions of sections 689 to 693 regarding resale, but without any right of redemption. Sec. 688. Redemption.— Redemption.If the seller does not give the notice of intention to retake described in section 687, he shall retain the goods for ten days after the retaking within the Canal Zone, during which period the buyer, upon payment or tender of the amount due under the contract at the time of retaking and interest, or upon performance or tender of performance of such other condition as may be named in the contract as precedent to the passage of the property in the goods, or upon performance or tender of performance of any other promise for the breach of which the goods were retaken, and upon payment of the expenses of retaking, keeping, and storage, may redeem the goods and become entitled to take possession of them and to continue in the performance of the contract as if no default had occurred. Upon written demand delivered personally or by registered mail by the buyer, the seller shall furnish to the buyer a written statement of the sum due under the contract and the expense of retaking, keeping, and storage. For failure to furnish such statement within a reasonable time after demand, the seller shall forfeit to the buyer $10 and also be liable to him for all damages suffered because of such failure. If the goods are perishable so that retention for ten days as herein prescribed would result in their destruction or substantial injury, the provisions of this section shall not apply, and the seller may resell the goods immediately upon their retaking. Sec. 689. Compulsory resale by seller.— Compulsory resale.If the buyer does not redeem the goods within ten days after the seller has retaken possession, and the buyer has paid at least 50 per centum of the purchase price at the time of the retaking the seller shall sell them at public auction in the Canal Zone, such sale to be held not more than thirty days after the retaking. The seller shall give to the buyer not less than ten days’ written notice of the sale, either personally or by registered mail, directed to the buyer at his last known place of business or residence. The seller shall also give notice of the sale by at least three notices posted in different public places within the Zone, at least five days before the sale. If at the time of the retaking $500 or more has been paid on the purchase price, the seller shall also give notice of the sale at least five days before the sale by publication in a newspaper having a general circulation within the Canal Zone. The seller may bid for the goods at the resale. Sec. 690. Resale at option of parties.— Resale at option of parties.If the buyer has not paid at least 50 per centum of the purchase price at the time of the retaking, the seller shall not be under a duty to resell the goods as prescribed in section 689, unless the buyer serves upon the seller, within ten days after the retaking, a written notice demanding a resale, delivered personally or by registered mail. If such notice is served, the resale shall take place within thirty days after the service, in the manner, at the place, and upon the notice prescribed 1225in section 689. The seller may voluntarily resell the goods for account of the buyer on compliance with the same requirements. Sec. 691. Proceeds of resale.— The proceeds of the resale shallProceeds of resale. be applied
(1)to the payment of the expenses thereof,
(2)to the payment of the expenses of retaking, keeping, and storing the goods,
(3)to the satisfaction of the balance due under the contract. Any sum remaining after the satisfaction of such claims shall be paid to the buyer. Sec. 692. Deficiency on resale.— If the proceeds of the resale areDeficiencies. not sufficient to defray the expenses thereof, and also the expenses of retaking, keeping, and storing the goods and the balance due upon the purchase price, the seller may recover the deficiency from the buyer, or from any one who has succeeded to the obligations of the buyer. Sec. 693. Rights of parties where there is no resale.— WhereRights of parties when no resale. there is no resale the seller may retain the goods as his own property without obligation to account to the buyer except as provided in section 695, and the buyer shall be discharged of all obligation. Sec. 694. Election of remedies.— After the retaking ofElection of remedies.*Ante*, p. 1223. possession as provided in section 686 the buyer shall be liable for the price only after a resale and only to the extent provided in section 692. Neither the bringing of an action by the seller for the recovery of the whole or any part of the price, nor the recovery of judgment in such action, nor the collection of a portion of the price, shall be deemed inconsistent with a biter retaking of the goods as provided in section 686. But such right of retaking shall not be exercised by the seller after he has collected the entire price or after he has claimed a lien upon the goods, or attached them, or levied upon them as the goods of the buyer. Sec. 695. Recovery of part payments.— Recovery of part payments.*Ante*, p. 1224.If the seller fails to comply with the provisions of sections 688, 689, 690, 691, and 693, after retaking the goods, the buyer may recover from the seller his actual damages, if any, and in no event less than one-fourth of the sum of all payments which have been made under the contract, with interest. Sec. 696. Waiver of statutory protection.— Waiver of statutory protection.No act or agreement of the buyer before or at the time of the making of the contract, nor any agreement or statement by the buyer in such contract, shall constitute a valid waiver of the provisions of sections 688, 689,*Ante*, p. 1224. 690, 691, and 695; except that the contract may stipulate that on such default of the buyer as is provided for in section 686, the seller may rescind the conditional sale, either as to all the goods or as to any part thereof for which a specific price was fixed in the contract. If the contract thus provides for rescission, the seller at his option may retake such goods without complying with or being bound by the provisions of sections 687 to 695, inclusive, as to the goods retaken, upon crediting the buyer with the full purchase price of those goods. So much of this credit as is necessary to cancel any indebtedness of the buyer to the seller shall be so applied, and the seller shall repay to the buyer on demand any surplus not so required. Sec. 697. Loss and increase.— After the delivery of the goodsLoss and increase. to the buyer and prior to the retaking of them by the seller, the risk of injury and loss shall rest upon the buyer. The increase of the goods shall be subject to the same conditions as the original goods. Sec. 698. Rules for cases not provided for.— In any caseCases not provided for. not provided for in this chapter the rules of law and equity, including the law merchant, and in particular those relating to principal and agent and to the effect of fraud, misrepresentation, duress or coercion, 1226mistake, or other invalidating cause, shall continue to apply to conditional sales. CHAPTER 36.— DEPOSIT IN GENERALDEPOSIT IN GENERAL. Nature and creation of.nature and creation of deposit Sec. 699. Deposit, kinds of.— Kinds of.A deposit may be voluntary or involuntary; and for safe-keeping or for exchange. Cross References Common carriers, see sections 885 et seq.*Post*, p. 1252. Deposit for exchange, see section 704. Deposit for hire, see sections 724 et seq.*Post*, p. 1229. Deposit for keeping, see sections 712 et seq.*Post*, p. 1228. Gratuitous deposit, and incidents, see sections 720 et seq.*Post*, p. 1229. Hiring, see sections 824 et seq.*Post*, p. 1245. Innkeepers, see sections 785 and 786.*Post*, p. 1240. Loan for exchange, see section 810.*Post*, p. 1243. Loan for use, see sections 797 et seq.*Post*, p. 1242. Loan of money, see section 815.*Post*, p. 1244. Pledge, see sections 1367 et seq.*Post*, p. 1303. Sec. 700. Voluntary deposit, how made.— Voluntary deposit.A voluntary deposit is made by one giving to another, with his consent, the possession of personal property to keep for the benefit of the former, or of a third party. The person giving is called the depositor, and the person receiving the depositary. Cross References Finder of lost articles, see sections 787 et seq.*Post*, p. 1241. Obligations of depositary, see sections 705 et seq.*Post*, p. 1227. Sec. 701. Involuntary deposit, how made.— An involuntary deposit is made:Involuntary deposit. 1. By the accidental leaving or placing of personal property in the possession of any person, without negligence on the part of its owner; or, 2. In cases of fire, shipwreck, inundation, insurrection, riot, or like extraordinary emergencies, by the owner of personal property committing it, out of necessity, to the care of any person. Cross References Degree of care requisite, see section 722.*Post*, p. 1229. Duties of depositary, when cease, see section 723.*Post*, p. 1229. Involuntary deposit in cases of emergency must be accepted, see section 702. Involuntary deposit is gratuitous, see section 721.*Post*, p. 1229. Sec. 702. Duty of involuntary depositary.— Duty of involuntary depositary.The person with whom a thing is deposited in the manner described in section 701 is bound to take charge of it, if able to do so. Sec. 703. Deposit for keeping, what.— Deposit for keeping.A deposit for keeping is one in which the depositary is bound to return the identical thing deposited. Cross Reference Deposit for keeping, see sections 712 et seq.*Post*, p. 1228. Sec. 704. Deposit for exchange, what.— For exchange.A deposit for exchange is one in which the depositary is only bound to return a thing corresponding in kind to that which is deposited. 1227 Cross References Deposit for exchange transfers title, see section 796.*Post*, p. 1242. Loan for exchange, see sections 810 et seq.*Post*, p. 1243. obligations of the depositaryObligations of depositary. Sec. 705. Depositary must deliver on demand.— Delivery on demand.A depositary must, Delivery on demand. deliver the thing to the person for whose benefit it was deposited, on demand, whether the deposit was made for a specified time or not, unless he has a lien upon the thing deposited, or has been forbidden or prevented from doing so by the real owner thereof, or by the act of the law, and has given the notice required by section 708. Cross References Care required of depositary, see section 725.*Post*, p. 1229. Delivery, see sections 706 and 710. For a general lien on personalty dependent upon possession, see section 1393.*Post*, p. 1306. Lien of innkeepers, see sections 785 et seq.*Post*, p. 1240. Notice of adverse proceedings, see section 708. Sec. 706. No obligation to deliver without demand.— No obligation to deliver without demand.A depositary is not bound to deliver a thing deposited without demand, even where the deposit is made for a specified time. Sec. 707. Place of delivery.— Place of delivery.A depositary must deliver the thing deposited at his residence or place of business, as may be most convenient for him. Cross Reference Delivery on sales, see sections 637 et seq.*Ante*, p. 1212. Sec. 708. Notice to owner of adverse claim.— 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. Sec. 709. Notice to owner of thing wrongfully detained.— 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 afterwards he does not claim it, and sufficiently establish his right thereto, and indemnify the depositary against the claim of the depositar, the depositary is exonerated from liability to the person to whom he gave the notice, upon returning the thing to the depositar, or assuming, in good faith. a new obligation changing his position in respect to the thing, to his prejudice. Sec. 710. Delivery of thing owned jointly, etc.— 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 deliver to each his proper share thereof, if it can be done without injury to the thing. Sec. 711. Joint deposits by more than one person.— Joint deposits.When a deposit is made in the name of two or more persons, deliverable or payable to either or to their survivor or survivors, such deposit or any part thereof, or increase thereof, may be delivered or paid to either of said persons or to the survivor or survivors in due course of business. Cross Reference Performance to one of joint creditors, see section 448.*Ante*, p. 1185. 1228 CHAPTER 37.— DEPOSIT FOR KEEPINGDEPOSIT FOR KEEPING. General provisions.general provisions Sec. 712. Depositor must indemnify depositary.— Indemnification.A depositor must indemnify the depositary: 1. For all damage caused to him by the defects or vices of the thing deposited; and 2. For all expenses necessarily incurred by him about the thing, other than such as are involved in the nature of the undertaking. Cross Reference Lenders liability for defects in articles borrowed, see section 806.*Post*, p. 1243. Sec. 713. Obligation of depositary of animals— Obligation of bailee of animals.A depositary of living animals must provide them with suitable food and shelter, and treat them kindly. Cross Reference Lien of keepers of livestock, see section 1393.*Post*, p. 1306. Sec. 714. Obligations as to use of thing deposited.— Use of thing deposited.A depositary may not use the thing deposited, or permit it to be used, for any purpose, without the consent of the depositor. He may not, if it is purposely fastened by the depositor, open it without the consent of the latter, except in case of necessity. Cross References Hiring; definition of term, see sections 824 et seq.*Post*, p. 1245. Liability for wrongful use, see section 715. Sec. 715. Liability for damage arising from wrongful use.— Liability for 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. Sec. 716. Sale of thing in danger of perishing.— Sale of perishables.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 depositor. Cross Reference Sale of perishables, see section 730.*Post*, p. 1230. Sec. 717. Injury to or loss of thing deposited.— 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 concerning them, or willfully misrepresents the circumstances to him, the depositary is presumed to have willfully, or by gross negligence, permitted the loss or injury to occur. Sec. 718. Service rendered by depositary.— Service rendered by depositary.So far as any service is rendered by a depositary, or required from him, his duties and *Post*, pp. 1247–1252.liabilities are prescribed by chapers 41 to 43 of this code on employment and service. Sec. 719. Liability of depositary.— Liability of bailee.The liability of a depositary for negligence can not exceed the amount which he is informed by the depositor, or has reason to suppose, the thing deposited to be worth. 1229 gratuitous depositGratuitous deposit. Sec. 720. Gratuitous deposit, what.— Gratuitous deposit as11 So in original. depositDefinition. for which the depositary receives no consideration beyond the mere possession of the thing deposited. Cross Reference Degree of care necessary, see section 722. Sec. 721. Nature of involuntary deposit.— An involuntaryNature of involuntary deposit. deposit is gratuitous, the depositary being entitled to no reward. Cross Reference Involuntary deposit, defined, see section 701.*Ante*, p. 1226. Sec. 722. Degree of care required of gratuitous depositary.— Degree of care, gratuitous depositary.A gratuitous depositary must use, at least, slight care for the preservation of the thing deposited. Sec. 723. His duties cease, when.— When duties cease.The duties of a gratuitous depositary cease: 1. Upon his restoring the thing deposited to its owner; or, 2. Upon his giving reasonable notice to the owner to remove it, and the owner failing to do so within a reasonable time. But an involuntary depositary, under subdivision two of section 701,*Ante*, p. 1226. can not give such notice until the emergency which gave rise to the deposit is past. storageStorage. Sec. 724. Deposit for hire.— Deposit for hire.A deposit not gratuitous is called storage. The depositary in such case is called a depositary for hire. Cross References Hiring, in general, see section 824.*Post*, p. 1245. Warehousemen, see sections 731 et seq.*Post*, p. 1230. Sec. 725. Degree of care required of depositary for hire.— Degree of care, depositary for hire.A depositary for hire must use at least ordinary care for the preservation of the thing deposited. Cross References Care required of a hirer, see section 827.*Post*, p. 1245. Common carriers, see sections 891, 897, and 975.*Post*, pp. 1253, 1257. Liability of warehousemen, see sections 901 and 902.*Post*, p. 1254. Sec. 726. Rate of compensation for fraction of week, etc.— Compensation for fraction of 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. Sec. 727. Termination of deposit.— Termination of deposit.In the absence of an agreement as to the length of time during which a deposit is to continue, it may be terminated by the depositor at any time, and by the depositary upon reasonable notice. Sec. 728. Same.— Notwithstanding an agreement respecting the length of time during which a deposit is to continue, it may be terminated by the depositor on paying all that would become due to the depositary in case of the deposit so continuing. 1230 Sec. 729. Lien for storage charges, advances, Insurance, and expenses.— Lien for storage charges, etc.A depositary for hire has a lien for storage charges and for advances and Insurance incurred at the request of the depositor, and for money necessarily expended in and about the care, preservation, and keeping of the property stored, and he also has a lien for money advanced at the request of the depositor, 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 *Post*, p. 1296.*Proviso*.Enforcement.*Post*, p. 1235.hire to such lien are regulated by chapters 62 et seq. of this code, on liens: *Provided, however*, That such lien may be enforced in the manner provided by sections 759, 761, and 762 of this code, relating to warehousemen. Sec. 730. Storage property to be sold.— 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 col lee t his charges for storage due thereon, he may cause such property to be sold to satisfy his *Post*, p. 1235.lien for storage in accordance with the provisions of sections 759 to 762 of this code relating to warehousemen. Cross References Sale by pledgee, see sections 1381 et seq.*Post*, p. 1305. Sale extinguishes lien, see section 1330.*Post*, p. 1299. Sale of perishables, see section 716.*Ante*, p. 1228. Sale of personalty to enforce, see section 1395.*Post*, p. 1307. Warehousemen, see sections 731 et seq. Warehousemen.warehousemen Cross Reference Nothing in Sales Act to be construed to repeal or limit this subchapter, see section 673.*Ante*, p. 1221. Sec. 731. Persons who may issue receipts.— Persons who may issue receipts.Warehouse receipts may be issued by any warehouseman. Sec. 732. Form of receipts.— Form of.Warehouse receipts need not be in any particular form, but every such receipt must embody within its written or printed terms:
(a)The location of the warehouse where the goods are stored;
(b)The date of issue of the receipt;
(c)The consecutive number of the receipt;
(d)A statement whether the goods received will be delivered to the bearer, to a specified person, or to a specified person or his order;
(e)The rate of storage charges;
(f)A description of the goods or of the packages containing them;
(g)The signature of the warehouseman, which may be made by his authorized agent;
(h)If the receipt is issued for goods of which the warehouseman is owner, either solely or jointly or in common with others, the fact of such ownership; and
(i)A statement of the amount of advances made and of liabilities incurred for which the warehouseman claims a lien. If the precise amount of such advances made or of such liabilities incurred is, at the time of the issue of the receipt, unknown to the warehouseman or to his agent who issues it, a statement of the fact that advances have been made or liabilities incurred and the purpose thereof is sufficient. 1231 A warehouseman shall be liable to any person injured thereby, for all damage caused by the omission from a negotiable receipt of any of the foregoing terms. A warehouseman may insert in a receipt, issued by him, any other terms and conditions, provided that such terms and conditions shall not: a) Be contrary to the provisions of this subchapter. b) In anywise impair his obligation to exercise that degree of care in the safe-keeping of the goods intrusted to him which a reasonably careful man would exercise in regard to similar goods of his own. Sec. 733. Negotiable and nonnegotiable receipts.— A receiptNegotiable and nonnegotiable receipts. in which it is stated that the goods received will be delivered to the depositor, or to any other specified person, is a nonnegotiable receipt. A receipt in which it is stated that the goods received will be delivered to the bearer or to the order of any person named in such receipt is a negotiable receipt. No provision shall be inserted in a negotiable receipt that it is nonnegotiable. Such provision, if inserted, shall be void. Sec. 734. Duplicate receipts must be so marked.— When moreDuplicate receipts must be marked. than one negotiable receipt is issued for the same goods, the word “duplicate” shall be plainly placed upon the face of every such receipt, except the one first issued. A warehouseman shall be liable for all damage caused by his failure so to do to any one who purchased the subsequent receipt for value supposing it to be an original, even though the purchase be after the delivery of the goods by the warehouseman to the holder of the original receipt. Sec. 735. Failure to mark “not negotiable.”— A nonnegotiableFailure to mark “not negotiable.” receipt shall have plainly placed upon its face by the warehouseman issuing it “nonnegotiable” or “not negotiable.” In case of the warehouseman’s failure so to do, a holder of the receipt who purchased it for value supposing it to be negotiable may, at his option, treat such receipt as imposing upon the warehouseman the same liabilities he would have incurred had the receipt been negotiable. This section shall not apply, however, to letters, memoranda, or written acknowledgments of an informal character. Sec. 736. Obligation of warehouseman to deliver.— Obligation to deliver.A warehouseman, in the absence of some lawful excuse provided by this subchapter, is bound to deliver the goods upon a demand made either by the holder of a receipt for the goods or by the depositor, if such demand is accompanied with:
(a)An offer to satisfy the warehouseman’s lien;
(b)An offer to surrender the receipt if negotiable, with such indorsement as would be necessary for the negotiation of the receipt; and
(c)A readiness and willingness to sign, when the goods are delivered, and acknowledgment that they have been delivered, if such signature is requested by the warehouseman. In case the warehouseman refuses or fails to deliver the goods in compliance with a demand by the holder or depositor so accompanied, the burden shall be upon the warehouseman to establish the existence of a lawful excuse for such refusal. Sec. 737. Justification of warehouseman in delivering.— When delivery justified.*Post*, p. 1232.A warehouseman is justified in delivering the goods, subject to the provisions of sections 738 to 740, to one who is:
(a)The person lawfully entitled to the possession of the goods, or his agent;
(b)A person who is either himself entitled to delivery by the terms of a nonnegotiable receipt issued for the goods, or who has 1232written authority from the person so entitled either indorsed upon the receipt or written upon another paper; or
(c)A person in possession of a negotiable receipt by the terms of which the goods are delivered to him or order or to bearer, or which has been indorsed to him or in blank by the person to whom delivery was promised by the terms of the receipt or by his mediate or immediate indorsee. Sec. 738. Warehouseman’s liability for misdelivery.— Liability for misdelivery.Where a warehouseman delivers the goods to one who is not in fact lawfully entitled to the possession of them, the warehouseman shall be liable as for conversion to all 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 section 737 and though he delivered the goods as authorized by said subdivisions he shall be so liable, if prior to such delivery he had either—
(a)Been requested, by or on behalf of the person lawfully entitled to a right of property or possession in the goods, not to make such delivery; or
(b)Had information that the delivery about to be made was to one not lawfully entitled to the possession of the goods. Sec. 739. Negotiable receipts must be canceled or marked when goods or part thereof are delivered.— Cancellation of negotiable receipts.Except as provided in section 762, *Post*, p. 1236.where a warehouseman delivers goods for which he had issued a negotiable receipt, the negotiation of which would transfer the right to the possession of the goods, and fails to take up and cancel the receipt, he shall be liable to anyone who purchases for value in good faith such receipt, for failure to deliver the goods to him, whether such purchaser acquired title to the receipt before or after the delivery of the goods by the warehouseman. Except as provided in said section 762, where a warehouseman delivers part of the goods for which he had issued a negotiable receipt and fails either to take up and cancel such receipt, or to place plainly upon it a statement of what goods or packages have been delivered he shall be liable, to anyone who purchases for value in good faith such receipt, for failure to deliver all the goods specified in the receipt, whether such purchaser acquired title to the receipt before or after the delivery of any portion of the goods by the warehouseman. Sec. 740. Altered receipts.— Altered receipts.The alteration of a receipt shall not excuse the warehouseman who issued it from any liability if such alteration was
(a)Immaterial;
(b)Authorized; or
(c)Made without fraudulent intent. Liability thereon.If the alteration was authorized, the warehouseman shall be liable according to the terms of the receipt as altered. If the alteration was unauthorized, but made without fraudulent intent, the warehouseman shall be liable according to the terms of the receipt, as they were before alteration. Material and fraudulent alteration of a receipt shall not excuse the warehouseman who issued it from liability to deliver, according to the terms of the receipt as originally issued, the goods for which it was issued, but shall excuse him from any other liability to the person who made the alteration and to any person who took with notice of the alteration. Any purchaser of the receipt for value without notice of the alteration shall acquire the same rights against the warehouseman which such purchaser would have acquired if the receipt had not been altered at the time of the purchase. 1233 Sec. 741. Lost or destroyed receipts.— Where a negotiable receiptLost and destroyed receipts. 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 sureties to be approved by the court to protect the warehouseman from any liability or expense, which he or any person injured by such delivery may incur by reason of the original receipt remaining outstanding. The court may also in its discretion order the payment of the warehouseman’s reasonable costs and counsel fees. The delivery of the goods under an order of the court as provided in this section shall not relieve the warehouseman from liability to a person to whom the negotiable receipt has been or shall be negotiated for value without notice of the proceedings or of the delivery of the goods. Sec. 742. Effect of duplicate receipts.— A receipt upon the faceEffect of duplicate receipts. of which the word “duplicate” is plainly placed is a representation and warranty by the warehouseman that such receipt is an accurate copy of an original receipt properly issued and uncanceled at the date of the issue of the duplicate, but shall impose upon him no other liability. Sec. 743. Warehouseman can not set up title in himself.— Warehouseman can not set up title in himself.No warehouseman can title or right to the possession of the goods, on the part of the warehouseman, unless such title or right is derived directly or indirectly from a transfer made by the depositor at the time of or subsequent to the deposit for storage, or from the warehouseman’s lien, shall excuse the warehouseman from liability for refusing to deliver the goods according to the terms of the receipt. Sec. 744. Interpleader of adverse claimants.— If more thanInterpleader when adverse claimants. one person claim the title or possession of the goods, the warehouseman may, either as a defense to an action brought against him for non-delivery of the goods, or as an original suit, whichever is appropriate, require all known claimants to interplead. Sec. 745. Warehouseman has reasonable time to determine validity of claims.— Time to determine validity of claims.If some one other than the depositor or person claiming under him has a claim to the title or possession of the goods, and the warehouseman has information of such claim, the warehouseman shall be excused from liability for refusing to deliver the goods, either to the depositor or person claiming under him or to the adverse claimant, until the warehouseman has had a reasonable time to ascertain the validity of the adverse claim or to bring legal proceedings to compel all claimants to interplead. Sec. 746. Adverse title is no defense except as above provided.— Adverse title as defense.Except as provided in sections 744 and 745 and in sections 737 and 762, no right or title of a third person shall be a defense to*Ante*, p. 1231; *post*, p. 1236. an action brought by the depositor or person claiming under him against the warehouseman for failure to deliver the goods according to the terms of the receipt. Sec. 747. Liability for nonexistence or misdescription of goods.— Liability for nonexistence or misdescription of goods.A warehouseman shall be liable to the holder of a receipt, issued by him or on his behalf by an agent or employee the scope of whose actual or apparent authority includes the issuing of warehouse receipts, for damages caused by the nonexistence of the goods or by the failure of the goods to correspond with the description thereof in the receipt at the time of its issue. If, however, the goods are described in a receipt merely by a statement 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 that the packages containing the goods are said to contain goods of a certain kind, or by words of like purport, such statements, if true, shall not make liable the warehouseman issuing the receipt, although the goods are 1234not of the kind which the marks or labels upon them indicate, or of the kind they were said to be by the depositor. Sec. 748. Liability for care of goods.— For care of goods.A warehouseman shall be liable for any loss or injury to the goods caused by his failure to exercise such care in regard to them as a reasonably careful owner of similar goods would exercise, but he shall not be liable, in the absence of an agreement to the contrary, for any loss or injury to the goods which could not have been avoided by the exercise of such care. Sec. 749. Goods must be kept separate.— Goods must be kept separate.Except as provided in section 750, a warehouseman shall keep the goods so far separate from goods of other depositors, and from other goods of the same depositor for which a separate receipt has been issued, as to permit at all times the identification and redelivery of the goods deposited. Sec. 750. Commingled goods and warehouseman’s liability therefor.— Commingled goods.If authorized by agreement or by custom, a warehouseman may mingle fungible goods with other goods of the same kind and grade. In such case the various depositors of the mingled goods shall own the entire mass in common, and each depositor shall be entitled to such portion thereof as the amount deposited by him bears to the whole. Liability.The warehouseman shall be severally liable to each depositor for the care and redelivery of his share of such mass to the same extent and under the same circumstances as if the goods had been kept separate. Sec. 751. Attachment or levy upon goods for which a negotiable receipt has been issued.— Attachment or levy upon goods for which a negotiable receipt has been issued.If goods are delivered to a warehouseman by the owner or by a person whose act in conveying the title to them to a purhcaser11 So in original. in good faith for value would bind the owner, and a negotiable receipt is issued for them, they can not thereafter, while in the possession of the warehouseman, be attached by garnishment or otherwise, or be levied upon under an execution, unless the receipt be first surrendered to the warehouseman, or its negotiation enjoined. The warehouseman shall in no case be compelled to deliver up the actual possession of the goods until the receipt is surrendered to him or impounded by the court. Sec. 752. Creditors remedies to reach negotiable receipts.— Creditors remedies, negotiable receipts.A creditor whose debtor is the owner of a negotiable receipt shall be entitled to such aid from courts of appropriate jurisdiction, by injunction and otherwise, in attaching such receipt or in satisfying the claim by means thereof as is allowed at law or in equity, in regard to property which can not readily be attached or levied upon by ordinary legal process. Sec. 753. What claims are included in the warehouseman’s lien.— Claims included in warehouseman’s lien.*Post*, p. 1235.Subject to the provisions of section 756, a warehouseman shall have a lien on goods deposited or on the proceeds thereof in his hands, for all lawful charges for storage and preservation of the goods; also for all lawful claims for money advanced, interest, insurance, transportation, labor, weighing, coopering and other charges and expenses in relation to such goods; also for all reasonable charges and expenses for notice, and advertisements of sale, and for sale of the goods where default has been made in satisfying the warehouseman’s lien. Sec. 754. Against what property the lien may be enforced.— Against what property lien may be enforced.Subject to the provisions of section 756, a warehouseman’s lien may be enforced: 1235
(a)Against all goods, whenever deposited, belonging to the person who is liable as debtor for the claims in regard to which the lien is asserted; and
(b)Against all goods belonging to others which have been deposited at any time by the person who is liable as debtor for the claims in regard to which the lien is asserted, if such person had been so intrusted with the possession of the goods that a pledge of the same by him at the time of the deposit to one who took the goods in good faith for value would have been valid. Sec. 755. How the lien may be lost.— A warehouseman loses his lien upon goods:Loss of lien.
(a)By surrendering possession thereof; or
(b)By refusing to deliver the goods when a demand is made with which he is bound to comply under the provisions of this subchapter. Sec. 756. Negotiable receipt must state charges for which lien is claimed.— Negotiable receipt must state charges for which lien is claimed.If a negotiable receipt is issued for goods, the warehouseman shall have no lien thereon, except for charges for storage of those goods subsequent to the date of the receipt, unless the receipt expressly enumerates other charges for which a lien is claimed. In such case there shall be a lien for the charges enumerated so far as they are within the terms of section 753,*Ante*, p. 1234. although the amount of the charges so enumerated is not stated in the receipt. Sec. 757. Warehouseman need not deliver until lien is satisfied.— Delivery not required until lien satisfied.A warehouseman having a lien valid against the person demanding the goods may refuse to deliver the goods to him until the lien is satisfied. Sec. 758. Warehouseman’s lien does not preclude other remedies.— Lien does not preclude other remedies.Whether a warehouseman has or has not a lien upon the goods, he is entitled to all remedies allowed by law to a creditor against his debtor for the collection from the depositor of all charges and advances which the depositor has expressly or impliedly contracted with the warehouseman to pay. Sec. 759. Satisfaction of lien by sale.— Satisfaction of lien by sale.A warehouseman’s lien for a claim which has become due may be satisfied as follows: The warehouseman shall give a written notice to the person on whoseNotice to interested parties. interested account the goods are held, and to any other person known by the warehouseman to claim an interest in the goods. Such notice shall be given by delivery in person or by registered letter addressed to the last known place of business or abode of the person to be notified. The notice shall contain:Contents.
(a)An itemized statement of the warehouseman’s claim, showing the sum due at the time of the notice and the date or dates when it became due;
(b)A brief description of the goods against which the lien exists;
(c)A demand that the amount of the claim as stated in the notice, and of such further claim as shall accrue, shall be paid on or before a day mentioned, not less than ten days from the delivery of the notice if it is personally delivered, or from the time when the notice should reach its destination, according to the due course of post, if the notice is sent by mail; and
(d)A statement that unless the claim is paid within the time specified the goods will be advertised for sale and sold by auction at a specified time and place. In accordance with the terms of a notice so given, a sale of theAt auction. goods by auction may be had to satisfy any valid claim of the warehouseman for which he has a lien on the goods. The sale shall be had in the place where the lien was acquired, or, if such a place is manifestly unsuitable for the purpose, at the nearest suitable place. 1236After the time for the payment of the claim specified in the notice to the Notice of auction.depositor has elapsed, a notice of the sale, describing the goods to be sold, and stating the name of the owner or person on whose account the goods are held, and the time and place of the sale, shall be posted for two consecutive weeks on the bulletin board of each post office of the Canal Zone. The sale shall not be held less than fifteen days from the time when such notices were posted. From the proceeds of such sale the warehouseman shall satisfy his lien, including the reasonable charges of notice and sale. The balance, if any, of such proceeds shall be held by the warehouseman, and delivered on demand to the person to whom he would have been bound to *Proviso*.Disposition of unclaimed balance.deliver or justified in delivering the goods: *Provided, however*, That in case any such balance shall not be claimed by the rightful owner within one month from the day of said sale, the same shall be paid to the collector of the Panama Canal; and if the same be not claimed by the owner thereof or his legal representatives within one year thereafter, the same shall be covered into the Treasury of the United States as miscellaneous receipts. At any time before the goods are so sold any person claiming a right of property or possession therein may pay the warehouseman the amount necessary to satisfy his lien and to pay the reasonable expenses and liabilities incurred in serving and posting notices and preparing for the sale up to the time of such payment. The warehouseman shall deliver the goods to the person making such payment if he is a person entitled, under the provisions of this subchapter, to the possession of the goods on payment of the charges thereon. Otherwise the warehouseman shall retain possession of the goods according to the terms of the original contract of deposit. Sec. 760. Perishable and hazardous goods.— Perishable and hazardous goods.If goods are of a perishable nature, or by keeping will deteriorate greatly in value, or by their odor, leakage, inflammability, or explosive nature will be liable to injure other property, the warehouseman may give such notice to the owner, or to the person in whose name the goods are stored, as is reasonable and possible under the circumstances, to satisfy the lien upon such goods and to remove them from the warehouse, and in the event of the failure of such person to satisfy the lien and to remove the goods within the time so specified, the warehouseman may sell the goods at public or private sale without posting notices. If the warehouseman after a reasonable effort is unable to sell such goods, he may dispose of them in any lawful manner, and shall incur no liability by reason thereof. The proceeds of any sale made under the terms of this section shall be disposed of in the same way as the proceeds of sales made under the terms of section 759. Sec. 761. Other methods of enforcing liens.— Other methods of enforcing liens.The remedy for enforcing a lien herein provided does not preclude any other remedies allowed by law for the enforcement of a lien against personal property nor bar the right to recover so much of the warehouseman’s claim as shall not be paid by the proceeds of the sale of the property. Sec. 762. Effect of sale.— Effect of sale.After goods have been lawfully sold to satisfy a warehouseman’s lien, or have been lawfully sold or disposed of because of their perishable or hazardous nature, the warehouseman shall not thereafter be liable for failure to deliver the goods to the depositor, or owner of the goods, or to a holder of the receipt given for the goods when they were deposited, even if such receipt be negotiable. Sec. 763. Negotiation of negotiable receipts by delivery and by indorsement.— Negotiation of receipts by deliveryA negotiable receipt may be negotiated by delivery: 1237
(a)Where, by the terms of the receipt, the warehouseman undertakes to deliver the goods to the bearer; or
(b)Where, by the terms of the receipt, the warehouseman undertakes to deliver the goods to the order of a specified person, and such person or a subsequent indorsee of the receipt has indorsed it in blank or to bearer. Where, by the terms of a negotiable receipt, the goods are deliverable to bearer or where a negotiable receipt has been indorsed in blank or to bearer, any holder may indorse the same to himself or to any other specified person, and in such case the receipt shall thereafter be negotiated only by the indorsement of such indorsee. A negotiable receipt may be negotiated by the indorsement of theBy indorsement. person to whose order the goods are, by the terms of the receipt, deliverable. Such indorsement may be in blank, to bearer or to a specified person. If indorsed to a specified person, it may be again negotiated by the indorsement of such person in blank, to bearer or to another specified person. Subsequent negotiation may be made in like manner. Sec. 764. Transfer of receipts.— A receipt which is not in suchTransfer of. form that it can be negotiated by delivery may be transferred by the holder by delivery to a purchaser or donee. A nonnegotiable receipt can not be negotiated, and the indorsement of such a receipt gives the transferee no additional right. Sec. 765. Who may negotiate a receipt.— A negotiable receiptWho may negotiate. may be negotiated: By any person in possession of the same, however such possession may have been acquired, if, by the terms of the receipt, the warehouseman undertakes to deliver the goods to the order of such person or if at the time of negotiation the receipt is in such form that it may be negotiated by delivery. Sec. 766. Rights of person to whom a receipt has been negotiated.— Rights of person to whom negotiated.A person to whom a negotiable receipt has been duly negotiated acquires thereby:
(a)Such title to the goods as the person negotiating the receipt to him had or had ability to convey to a purchaser in good faith for value, and also such title to the goods as the depositor or person to whose order the goods were to be delivered by the terms of the receipt had or had ability to convey to a purchaser in good faith for value; and
(b)The direct obligation of the warehouseman to hold possession of the goods for him according to the terms of the receipt as fully as if the warehouseman had contracted directly with him. Sec. 767. Rights of person to whom a receipt has been transferred.— To whom transferred.A person to whom a receipt 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 receipt is nonnegotiable, such person also acquires the right to notify the warehouseman of the transfer to him of such receipt, and thereby to acquire the direct obligation of the warehouseman to hold possession of the goods for him according to the terms of the receipt. Prior to the notification of the warehouseman by the transferor or transferee of a nonnegotiable receipt, the title of the transferee to the goods and the right to acquire the obligation of the warehouseman may be defeated by the levy of an attachment or execution upon the goods by a creditor of the transferor, or by a notification to the warehouseman by the transferor, or a subsequent purchaser from the transferor of a subsequent sale of the goods by the transferor. 1238 Sec. 768. Transfer of negotiable receipt without indorsement.— Transfer without indorsement.Where a negotiable receipt is transferred for value by delivery, and the indorsement of the transferor is essential for negotiation, the transferee acquires a right against the transferor to compel him to indorse the receipt, unless a contrary intention appears. The negotiation shall take effect as of the time when the indorsement is actually made. Sec. 769. Warranties on sale of receipt.— Warranties of transferor, etc.A person who for value negotiates or transfers a receipt by indorsement or delivery, including one who assigns for value a claim secured by a receipt, unless a contrary intention appears, warrants:
(a)That the receipt is genuine;
(b)That he has a legal right to negotiate or transfer it;
(c)That he has knowledge of no fact which would impair the validity or worth of the receipt; and
(d)That he has a right to transfer the title to the goods, and that the goods are merchantable or fit for a particular purpose whenever such warranties would have been implied, if the contract of the parties had been to transfer without a receipt the goods represented thereby. Sec. 770. Indorser not a guarantor.— Indorser not a guarantor.The indorsement of a receipt shall not make the indorser liable for any failure on the part of the warehouseman or previous indorsers of the receipt to fulfill their respective obligations. Sec. 771. No warranty implied from accepting payment of a debt.— No warranty implied from accepting payment of a debt.A mortgagee, pledgee, or holder for security of a receipt who in good faith demands or receives payment of the debt for which such receipt is security, whether from a party to a draft drawn for such debt or from any other person, shall not by so doing be deemed to represent or to warrant the genuineness of such receipt or the quantity or quality of the goods therein described. Sec. 772. When negotiation not impaired by fraud, mistake, or duress.— Effect of fraud, etc., on negotiation.The validity of the negotiation of a receipt is not impaired by the fact that such negotiation was a breach of duty on the part of the person making the negotiation, or by the fact that the owner of the receipt was deprived of the possession of the same by loss, theft, fraud, accident, mistake, duress, or conversion, if the person to whom the receipt was negotiated, or a person to whom the receipt was subsequently negotiated, paid value therefor, in good faith, without notice of the breach of duty, or loss, theft, fraud, accident, mistake, duress, or conversion. Sec. 773. Subsequent negotiation.— Subsequent negotiations.Where a person having sold, mortgaged, or pledged goods which are in a warehouse and for which a negotiable receipt has been issued, or having sold, mortgaged, or pledged the negotiable receipt representing such goods, continues in possession of the negotiable receipt, the subsequent negotiation thereof by that person under any sale, or other disposition thereof to any person receiving the same in good faith, for value and without notice of the previous sale, mortgage, or pledge, shall have the same effect as if the first purchaser of the goods or receipt had expressly authorized the subsequent negotiation. Sec. 774. Negotiation defeats vendor’s lien.— Negotiation defeats vendor’s lien.Where a negotiable receipt 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 such receipt has been negotiated, whether such negotiation be prior or subsequent to the notification to the warehouseman who issued such receipt of the seller’s claim to a lien or right of stoppage in transitu. Nor shall the warehouseman be obliged to deliver or be justified in delivering the goods to 1239an unpaid seller unless the receipt is first surrendered for cancellation. Sec. 775. Issue of receipt for goods not received.— Issue of receipt for goods not received.A warehouseman, or any officer, agent, or servant of a warehouseman, who issues or aids in issuing a receipt knowing that the goods for which such receipt is issued nave not been actually received by such warehouseman, or are not under his actual control at the time of issuing such receipt, shall be guilty of a crime, and upon conviction shall be punished for each offense by imprisonment in jail not exceedingPenalties. one year, or by a fine not exceeding $1,000, or by both. Sec. 776. Issue of receipt containing false statement.— Issue of receipt containing false statement.A warehouseman, or any officer, agent, or servant of a warehouseman, who fraudulently issues or aids in fraudulently issuing a receipt 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 in jail not exceeding one year, or by a fine not exceeding $1,000, or by both. Sec. 777. Issue of duplicate receipts not so marked.— Duplicate receipts.A warehouseman, or any officer, agent, or servant of a warehouseman, who issues or aids in issuing a duplicate or additional negotiable receipt for goods knowing that a former negotiable receipt for the same goods or any part of them is outstanding and uncanceled, without plainly placing upon the face thereof the word “Duplicate,” except in the case of a lost or destroyed receipt after proceedings*Ante*, p. 1233. as provided for in section 741, shall be guilty of a crime, and upon conviction shall be punished for each offense by imprisonment in jail not exceeding one year, or by a fine not exceeding $1,000, or by both. Sec. 778. Issue for warehouseman’s goods of receipts which do not state that fact.— When warehouseman has a title therein.Where there are deposited with or held by a warehouseman goods of which he is owner, either solely or jointly or in common with others, such warehouseman, or any of his officers, agents, or servants who, knowing this ownership, issues or aids in issuing a negotiable receipt for such goods which does not state such ownership, shall be guilty of a crime, and upon conviction shall be punished for each offense by imprisonment in jail not exceeding one year, or by a fine not exceeding $1,000, or by both. Sec. 779. Delivery of goods without obtaining negotiable receipt.— Delivery without obtaining negotiable receipt.A warehouseman, or any officer, agent, or servant of a warehouseman who delivers goods out of the possession of such warehouseman, knowing that a negotiable receipt the negotiation of which would transfer the right to the possession of such goods is outstanding and uncanceled, without obtaining the possession of such receipt at or before the time of such delivery, shall, except in*Ante*, pp. 1233, 1236. the cases provided for in sections 741 and 762, be found guilty of a crime, and upon conviction shall be punished for each offense by imprisonment in jail not exceeding one year, or by a fine not exceeding $1,000, or by both. Sec. 780. Negotiation of receipt for mortgaged goods.— Negotiation of receipt for mortgaged goods.Any person who deposits goods to which he has not title, or upon which there is a lien or mortgage, and who takes for such goods a negotiable receipt 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 in jail not exceeding one year, or by a fine not exceeding $1,000, or by both. Sec. 781. When rules of common law still applicable.— Rules of common law applicable.In any case not provided for in this subchapter, the rules of law and equity, including the law merchant, and in particular the rules relating to the law of principal and agent and to the effect of fraud, misrepre-1240sentation, duress, or coercion, mistake, or other invalidating cause, shall govern. Sec. 783. Definitions.—
(1)Definitions.In this subchapter, unless the context or subject matter otherwise requires: “Action” includes counterclaim, set-off, and suit in equity. “Delivery” means voluntary transfer of possession from one person to another. “Fungible goods” means goods of which any unit is, from its nature or by mercantile custom, treated as the equivalent of any other unit. “Goods” means chattels or merchandise in storage, or which has been or is about to be stored. “Holder” of a receipt means a person who has both actual possession of such receipt and a right of property therein. “Order” means an order by indorsement on the receipt. “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 or as pledgee. “Purchaser” includes mortgagee and pledgee. “Receipt” means a warehouse receipt. “Value” is any consideration sufficient to support a simple contract. An antecedent or preexisting obligation, whether for money or not, constitutes value where a receipt is taken either in satisfaction thereof or as security therefor. “Warehouseman” means a person lawfully engaged in the business of storing goods for profit.
(2)A thing is done “in good faith” within the meaning of this subchapter, when it is in fact done honestly, whether it be done negligently or not. Sec. 784. Application to existing receipts.— Provisions not retroactive.The provisions of this subchapter do not apply to receipts made and delivered prior to the taking effect of this subchapter. Innkeepers.innkeepers Sec. 785. Hotels have lien on baggage of guests; may sell baggage; residue; baggage not belonging to guest.— Lien on baggage of guests.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 lodgers 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 lodging, 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. Sale under.And unless such charges and moneys shall be paid when the same become due, said hotel, inn, boarding-house, or lodging-house keeper*Ante*, p. 1235. may sell said baggage and property under the conditions prescribed in sections 759 to 762 of this code relating to warehousemen. Sec. 786. Unclaimed baggage may be sold at auction; notice.— Sale of unclaimed baggage; notice.Whenever any trunk, carpetbag, 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, and has remained or shall remain unclaimed for a period of three months, such keeper shall proceed to sell the same under the conditions *Ante*, p. 1235.prescribed in sections 759 to 762 of this code relating to warehousemen. 1241 findingFinding. Sec. 787. Obligation of finder.— One who finds a thing lost isFinder as bailee. not bound to take charge of it, but if he does so he is thenceforward a depositary for the owner, with the rights and obligations of a depositary for hire. Cross Reference Depositary for hire, see sections 725 et seq.*Ante*, p. 1229. Sec. 788. Finder of goods or money, or saving animals, duty of.— Notice to owner.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 reasonable charge for saving and caring therefor. If the owner is not known to such finder or saver, he must, withinWhen owner unknown. five days, file an affidavit with the magistrate of the subdivision in which the finding or saving took place, particularly describing the property and the time, place, and circumstances under which it was found or saved. Sec. 789. Claimant to prove ownership.— 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. Sec. 790. Reward, and so forth, to finder.— Rewards, etc.The finder of a thing is entitled to compensation for all expenses necessarily incurred by him in its preservation, and for any other service necessarily performed by him about it, and to a reasonable reward for keeping it. Sec. 791. Finder may put thing found on storage.— 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. Sec. 792. When finder may sell the thing found.— Sale.The finder of a thing may sell it, if it is a thing which is commonly the subject of sale, when the owner can not, with reasonable diligence, 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. Sec. 793. How sale is to be made.— How made.A sale under the provisions of section 792 must be made in the same manner as the sale of a thing pledged. Cross Reference Sale of pledge, see sections 1381 et seq.*Post*, p. 1305. Sec. 794. Property vests in finder, when; liability of finder to owner.— Vesting of title in finder.If no owner appears within six months after such finding or saving and offers reasonable proof of his ownership, and compensates, or in good faith offers to compensate, the finder or saver for the expense necessarily incurred by him, then such property vests in such finder or saver. Sec. 795. Thing abandoned.— Thing abandoned.The provisions of this subchapter Thing abandoned, have no application to things which have been intentionally abandoned by their owners. 1242 CHAPTER 38.— DEPOSIT FOR EXCHANGEDEPOSIT FOR EXCHANGE. Sec. 796. Relations of the parties.— 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. Cross References Deposit for exchange, defined, see section 704.*Ante*, p. 1226. Loan for exchange, see sections 810 et seq.*Post*, p. 1243. CHAPTER 39.— LOANLOAN. For use.loan for use Sec. 797. Loan, what.— Definition.A loan for use is a contract by which one gives to another the temporary possession and use of personal property, and the latter agrees to return the same thing to him at a future time, without reward for its use. Sec. 793. Title to property lent.— 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. Cross Reference Title to thing lent on loan for exchange, see section 812.*Post*, p. 1243. Sec. 799. Care required of borrower.— 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. Sec. 800. Same.— Living animals.One who borrows a living animal for use, must treat it with great kindness and provide everything necessary and suitable for it. Cross Reference Depositary of living animals for keeping, see section 713.*Ante*, p. 1228. Sec. 801. Degree of skill.— Degree of skill.A borrower for use is bound to have and to exercise such skill in the care of the thing lent as he causes the lender to believe him to possess. Sec. 802. Borrower, when to repair injuries.— Repair of injuries.A borrower for use must repair all deteriorations or injuries to the thing lent which are occasioned by his negligence, however slight. Sec. 803. Use of thing lent.— Use of thing lent.The borrower of a thing for use may use it for such purposes only as the lender might reasonably anticipate at the time of lending. Cross Reference Relending forbidden, see section 804. Sec. 804. Relending forbidden.— Relending.The borrower of a thing for use must not part with it to a third person, without the consent of the lender. Sec. 805. Borrower, when to bear expenses.— Expenses of.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, however, exonerate himself by surrendering the thing to the borrower. Cross Reference Liability for expenses, see section 812.*Post*, p. 1243. 1243 Sec. 806. Lender liable for defects.— The lender of a thingLiability for defects. for use must indemnify the borrower for damage caused by defects or vices in it, which he knew at the time of lending, and concealed from the borrower. Cross References Indemnity to depositary, see section 712.*Ante*, p. 1228. Loan for exchange, see sections 810 and 814. Sec. 807. Lender may require return of thing lent.— Lender may require return.The lender of a thing for use may at any time require its return, even though he lent it for a specified time or purpose. But if, on the faith of such an agreement, the borrower has made such arrangements that a return of the thing before the period agreed upon would cause him loss, exceeding the benefit derived by him from the loan, the lender must indemnify him for such loss, if he compels such return, the borrower not having in any manner violated his duty. Sec. 808. When returnable without demand.— When returnable without demand.If a thing is lent for use for a specified time or purpose, it must be returned to the lender without demand, as soon as the time has expired, or the purpose has been accomplished. In other cases it need not be returned until demanded. Sec. 809. Place of return.— 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 the time. loan for exchange.Loan for exchange. Sec. 810. Loan for exchange, what.— Definition.A loan for exchange is a contract by 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. Cross Reference Loan of money as a loan for exchange, see section 815.*Post*, p. 1244. Sec. 811. Same.— ATitle to property lent. 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 subchapter. Sec. 812. 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. Cross References Liability for expenses, see section 805.*Ante*, p. 1242. Title to property lent, see section 798.*Ante*, p. 1242. Sec. 813. Contract can not be modified by lender.— Modification of contract.A lender for exchange can not require the borrower to fulfill his obligations at a time, or in a manner, different from that which was originally agreed upon. Sec. 814. Certain sections applicable.— Defects, return, etc.Sections 806, 808, and 809 apply to a loan for exchange. 1244 Loan of money.loan of money. Sec. 815. Loan of money, defined.— Definition.A loan of money is a contract by which one delivers a sum of money to another, and the latter agrees to return at a future time a sum equivalent to that which he borrowed. A loan for mere use is governed by the subchapter on loan for use. Cross Reference Interest, see sections 817 et seq. Sec. 816. Loan to be repaid in current money.— Repayment in current money.A borrower of money, unless there is an express contract to the contrary, must pay the amount due in such money as is current at the time when the loan becomes due, whether such money is worth more or less than the actual money lent. Sec. 817. Loan presumed to be on interest.— Presumption of 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 writing. Cross Reference Tender of performance stops interest, see section 472.*Ante*, p. 1188. Sec. 818. Interest, what.— “Interest.”Interest is the compensation allowed by law or fixed by the parties for the use, or forebearance, or detention of money. Cross References Interest as damages, see sections 1600 et seq.*Post*, p. 1331. Interest in actions ex delicto, see section 1601.*Post*, p. 1331. Legacies, interests on, see section 394.*Ante*, p. 1177. Liability of trustee for interest, see sections 1005 and 1019.*Post*, pp. 1260, 1262. Special partner may receive interest, see section 1136.*Post*, p. 1276. Sec. 819. Annual rate.— Annual rate.When a rate of interest is prescribed by 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. Cross References Interest as damages, see section 1600 et seq.*Post*, p. 1331. Rate of interest after breach of contract, see section 1602.*Post*, p. 1331. Sec. 820. Legal interest.— Legal interest.No rate of interest shall be allowed in excess of 6 per centum per annum upon any contract for the use or detention of money, unless the same is in writing and the interest Executive Order No. 1860.agreed upon must not exceed 12 per centum per annum. (E. O. Nov. 11, 1913, § 1.) Sec. 821. Usurious contracts; principal only, recoverable.— Usurious contracts, recovery on.All contracts whatsoever which may in any way, directly or indirectly, violate section 820 by stipulating for a greater rate of interest than 12 per centum per annum, shall be void and of no effect for the amount or value of the interest only; but the principal sum of Executive Order No. 1860.money or value of the contract may be received and recovered. (E. O. Nov. 11, 1913, § 2.) Sec. 822. Recovery of usurious interest paid.— Recovery of usurious interest.When the interest received or collected for the use or detention of money exceeds the rate of 12 per centum per annum, it shall be deemed to be usurious, and the person or persons paying the same, or their legal representatives, may recover from the person, firm, or corporation receiving such interest, the amount of the interest so received or collected, in 1245any court of competent jurisdiction, within two years from the date of the payment of such interest. (E. O. Nov. 11, 1913, § 3.)Executive Order No. 1860. Sec. 823. Evidence of usury.— Evidence of usury.No evidence of usury shall be received on the trial of any case unless the same shall be pleaded and verified by the affidavit of the party wishing to avail himself of such defense. CHAPTER 40.— HIRINGHIRING. Sec. 824. Hiring, what.— Hiring is a contract by which oneDefinition. gives to another the temporary possession and use of property, other than money, for reward, and the latter agrees to return the same to the former at a future time. Cross Reference Hiring personalty, see sections 835 et seq.*Post*, p. 1246. Sec. 825. Products of thing— Products of thing hired.The products of a thing hired, during the hiring, belong to the hirer. Sec. 826. Quiet possession.— Quiet possession.An agreement to let upon hire binds the letter to secure to the hirer the quiet possession of the thing hired during the term of the hiring, against all persons lawfully claiming the same. Cross References Duty of letter of personalty likewise, section 835.*Post*, p. 1246. Termination of hiring for want of quiet enjoyment, see section 831.*Post*, p. 1246. Sec. 827. Degree of care, and so forth, on part of hirer.— Degree of care, etc.The Degree of care, etc. hirer of a thing must use ordinary care for its preservation in safety and in good condition. Cross Reference Care required of depositary for hire, see section 725.*Ante*, p. 1229. Sec. 828. Must repair injuries, and so forth.— Repair of injuries, etc.The hirer of a thing must repair all deteriorations or injuries thereto occasioned by his want of ordinary care. Cross References Duty of letter to repair, see section 835.*Post*, p. 1246. Hirer may make repairs and recover from letter when, see section 837. *Post*, p. 1246. Termination of hiring where hirer does not make repairs, see section 830. Sec. 829. Thing let for a particular purpose.— Letting for particular purpose.When a thing is let for a particular purpose the hirer must not use it for any other purpose; and if he does, he is liable to the letter for all dainages resulting from such use, or the letter may treat the contract as thereby rescinded. Cross Reference Right to terminate hiring, see section 830. Sec. 830. When letter may terminate the hiring.— Letter may terminate hiring.The letter of a thing may terminate the hiring and reclaim the thing before the end of the term agreed upon: 1. When the hirer uses or permits a use of the thing hired in a manner contrary to the agreement of the parties; or, 2. When the hirer does not, within a reasonable time after request, make such repairs as he is bound to make. Cross Reference Termination of hiring, see section 829. 1246 Sec. 831. Hirer may terminate the hiring, when.— Hirer may terminate hiring.The hirer of a thing may terminate the hiring before the end of the term agreed upon: 1. When the letter does not, within a reasonable time after request, fulfill his obligations, if any, as to placing and securing the hirer in the quiet possession of the thing hired, or putting it into good condition, or repairing; or, 2. When the greater part of the thing hired, or that part which was and which the letter had at the time of the hiring reason to believe was the material inducement to the hirer to enter into the contract, perishes from any other cause than the want of ordinary care of the hirer. Cross References Repair of premises, see section 835. Right of hirer to quiet enjoyment, see section 826.*Ante*, p. 1245. Sec. 832. When hiring terminates.— Hiring terminates.The hiring of a thing terminates: 1. At the end of the term agreed upon; 2. By the mutual consent of the parties; 3. By the hirer acquiring a title to the thing hired superior to that of the letter; or, 4. By the destruction of the thing hired. Sec. 833. When terminated by death, etc., of party.— Termination by death, etc.If the hiring of a thing is terminable at the pleasure of one of the parties, it is terminated by notice to the other of his death or incapacity to contract. In other cases it is not terminated thereby. Sec. 834. Apportionment of hire.— Apportionment of hire.When the hiring of a thing is terminated before the time originally agreed upon, the hirer must pay the due proportion of the hire for such use as he has actually made of the thing, unless such use is merely nominal and of no benefit to him. Cross Reference For the compensation to which a depositary for hire is entitled upon a termination of the deposit, see sections 726 to 728.*Ante*, p. 1229. Sec. 835. Obligations of letter of personal property.— Obligations of letter of personalty.One who lets personal property must deliver it to the hirer, secure his quiet enjoyment thereof against all lawful claimants, put it into a condition fit for the purpose for which he lets it, and repair all deteriorations thereof not occasioned by the fault of the hirer and not the natural result of its use. Cross References Quiet enjoyment. see sections 826 and 831.*Ante*, p. 1245. Repair of premises, see sections 828 and 831.*Ante*, p. 1245. Sec. 836. Ordinary expenses.— Ordinary expenses.A hirer of personal property must bear all such expenses concerning it as might naturally be foreseen to attend it during its use by him. All other expenses must be borne by the letter. Sec. 837. Extraordinary expenses.— Extraordinary expenses.If a letter failed to fulfill his obligations, as prescribed by section 835, the hirer, after giving him notice to do so, if such notice can conveniently be given, may expend any reasonable amount necessary to make good the letter’s default, and may recover such amount from him. Sec. 838. Return of thing hired.— Return of thing hired.At the expiration of the term for which personal property is hired, the hirer must return it to the letter at the place contemplated by the parties at the time of 1247hiring; or, if no particular place was so contemplated by them, at the place at which it was at that time. CHAPTER 41.— SERVICE WITH EMPLOYMENTSERVICE WITH EMPLOYMENT. application and scope of chapters 41 to 43 of this codeApplication, etc., of Chapters 41–43. Sec. 839. No Application to canal or railroad employees.— Canal and railroad employees excepted.This chapter and chapters 42 and 43 of this code shall have no application to the United States Government, or the Panama Railroad Company, or to their employees as concerns such employment. Cross Reference In respect to injuries to employees of the Panama Canal or the Panama Railroad Company, see Act Sept. 7, 1916, c. 458, 39 Stat. 742, as amended: Act Apr. 22, 1908, c. 149, 35 Stat. 65, as amended; and Act Mar. 2, 1893, c. 186, 27 Stat. 531, as amended.Vol. 39, p. 742.Vol. 35, p. 65.Vol. 27, p. 531. Sec. 840. Scope of chapter.— The scope of this chapter isScope. not confined to servants, but includes factors, brokers, carriers, agents, and all similar classes of persons. definition of employmentEmployment. Sec. 841. Employment, what.— The contract of employmentDefined. is a contract by which one, who is called the employer, engages another, who is called the employee, to do something for the benefit of the employer or of a third person. obligations of employerObligations of employer. Sec. 842. When employer must indemnify employee.— When employer must indemnify employee.An employer must indemnify his employee, except as prescribed in section 843, for all that he necessarily expends or loses in direct consequence of the discharge of his duties as such, or of his obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying such directions, believed them to be unlawful. Sec. 843. When employer not bound to indemnify employee.— When not bound to indemnify employee.An employer is not bound to indemnify his employee for losses suffered by the latter in consequence of the ordinary risks of the business in which he is employed nor in consequence of the negligence of another person employed by the same employer in the same general business, unless the negligence causing the injury was committed in the performance of a duty the employer owes by law to the employee, or unless the employer has neglected to use ordinary care in the selection of the culpable employee; provided, nevertheless, that the employer shall be liable for such injury when the same results from the wrongful act, neglect, or default of any agent or officer of such employer, superior to the employee injured, or of a person employed by such employer having the right to control or direct the services of such employee injured, and also when such injury results from the wrongful act, neglect, or default of a coemployee engaged in another department of labor from that of the employee injured, or employed upon a machine or other appliance other than that upon which the employee injured is employed. Knowledge by an employee injured of the detective or unsafeKnowledge of defective machinery, etc. character or condition of any machinery, ways, appliances or structures of such employer shall not be a bar to recovery for any injury or death caused thereby, unless it shall also appear that such employee 1248fully understood, comprehended and appreciated the dangers incident to the use of such defective machinery, ways, appliances or structures, and thereafter consented to use the same, or continued in the use thereof. Contracts waiving benefits void.Any contract or agreement, express or implied, made by any such employee to waive the benefits of this section, or any part thereof, shall be null and void, and this section shall not be construed to deprive any such employee or his personal representative of any right or remedy to which he is now entitled under the laws of the Canal Zone. Contributory negligence.The rules and principles of law as to contributory negligence which apply to other cases shall apply to cases arising under this section, except in so far as the same are herein modified or changed. Sec. 844. Employer to indemnify for his own negligence.— Employer to indemnify for own negligence.All employer must in all cases indemnify his employee for losses caused by the former’s want of ordinary care. Obligations of employee.obligations of employee. Sec. 845. Duties of gratuitous employee.— Duties of gratuitous employee.One who, without consideration, undertakes to do a service for another, is not bound to perform the same, but if he actually enters upon its performance, he must use at least slight care and diligence therein. Sec. 846. Same.— Upon own special request.One who, by his own special request, induces another to intrust him with the performance of a service, must perform the same fully. In other cases, one who undertakes a gratuitous service may relinquish it at any time. Sec. 847. Same.— With written power of attorney.A gratuitous employee, who accepts a written power of attorney, must act under it so long as it remains in force, or until he gives notice to his employer that he will not do so. Sec. 848. Duties of employee for reward.— Employee for reward.One who, for a good consideration, agrees to serve another, must perform the service, and must use ordinary care and diligence therein, so long as he is thus employed. Sec. 849. Duties of employee for his own benefit.— Employee for his own benefit.One who is employed at his own request to do that which is more for his own advantage than for that of his employer, must use great care and diligence therein to protect the interest of the latter. Sec. 850. Employee must obey employer.— Obedience.An employee must substantially comply with all the directions of his employer concerning the service on which he is engaged, except where such obedience is impossible or unlawful, or would impose new and unreasonable burdens upon the employee. Sec. 851. Conformity to usage. Employee to conform to usage.— An employee must perform his service in conformity to the usage of the place of performance, unless otherwise directed by his employer, or, unless it is impracticable, or manifestly injurious to his employer to do so. Sec. 852. Degree of skill required.— Degree of skill required.An employee is bound to exercise a reasonable degree of skill, unless his employer has notice, before employing him, of his want of skill. Sec. 853. Must use what skill he has.— Must use what skill he has.An employee is always bound to use such skill as he possesses, so far as the same is required, for the service specified. Sec. 854. What belongs to employer.— What belongs to employer.Everything which an employee acquires by virtue of his employment, except the compensation, if any, which is due to him from his employer, belongs to the latter, whether acquired lawfully or unlawfully, or during or after the expiration of the term of his employment. 1249 Sec. 855. Duty to Account.— An employee must, on demand,Duty to account. render to his employer just accounts of all his transactions in the course. of his service, as often as may be reasonable, and must, without demand, give prompt notice to his employer of everything which he receives for his account. Sec. 856. Employee not bound to deliver without demand.— Delivery without demand.An employee who receives anything on account of his employer, in any capacity other than that of a mere servant, is not bound to deliver it to him until demanded, and is not at liberty to send it to him from a distance, without demand, in any mode involving greater risk than its retention by the employee himself. Sec. 857. Preference to be given to employers.— Preference to be given to employers.An employee who has any business to transact on his own account, similar to that intrusted to him by his employer, must always give the latter the preference. Sec. 858. Responsibility for negligence.— Responsibility for negligence.An employee who is guilty of a culpable degree of negligence is liable to his employer for the damage thereby caused to the latter; and the employer is liable to him, if the service is not gratuitous, for the value of such services only as are properly rendered. Sec. 859. Surviving employee.— Surviving employee.Where service is to be rendered by two or more persons jointly, and one of them dies, the survivor must act alone, if the service to be rendered is such as he can rightly perform without the aid of the deceased person, but not otherwise. Sec. 860. Confidential employment.— Confidential employment.Post, pp. 1258, 1261.The obligations peculiar to confidential employments are defined in chapters 49 and 50 of this code on trusts. termination of employmentTermination of employment. Sec. 861. Employment, how terminated.— How.Every employment in which the power of the employee is not coupled with an interest in its subject is terminated by notice to him of: 1. The death of the employer; or 2. His legal incapacity to contract. Sec. 862. Same.— Every employment is terminated: 1. By the expiration of its appointed term; 2. By the extinction of its subject; 3. By the death of the employee; or 4. By his legal incapacity to act as such. Sec. 863. Continuance of service in certain cases.— Continuance of service in certain cases.An employee, unless the term of his service has expired, or unless he has a right to discontinue it at any time without notice, must continue his service after notice of the death or incapacity of his employer, so far as is necessary to protect from serious injury the interests of the employer’s successor in interest, until a reasonable time after notice of the facts has been communicated to such successor. The successor must compensate the employee for such service according to the terms of the contract of employment. Sec. 864. Terms of employment.— Employment at will.An employment, having no specified terms, may be terminated at the will of either party, on notice to the other. Employment for a specified term shall For specified term.mean an employment for a period greater than one month. Sec. 865. Termination by employer.— Termination by employer.An employment, for a specified term, may be terminated at any time by the employer, in case of any willful breach of duty by the employee in the course of his employment, or in case of his habitual neglect of his duty or continued incapacity to perform it. 1250 Sec. 866. Termination by employee.— By employee.An employment, for a specified term, may be terminated by the employee at any time, in case of any willful or permanent breach of the obligations of his employer to him as an employee. Sec. 867. Compensation due on dismissal.— Compensation on dismissal.An employee who is not employed for a specified term, dismissed by his employer, is entitled to compensation for services rendered up to the time of such dismissal. Sec. 868. Compensation due on quitting.— Compensation on quitting.An employee who is not employed for a specified term and who quits the service of his employer, is entitled to compensation for services rendered up to the time of such quitting. CHAPTER 42.— PARTICULAR EMPLOYMENTSPARTICULAR EMPLOYMENTS. Cross Reference This chapter not applicable to canal or railroad employees. see section 839.*Ante*, p. 1247. Master and servant.master and servant Sec. 869. Servant, what.— “Servant,” defined.A servant is one who is employed to render personal service to his employer, otherwise than in the pursuit of an independent calling, and who in such service remains entirely under the control and direction of the latter, who is called his master. Cross References Employer and employee, generally, see sections 841 et seq.*Ante*, p. 1247. Obligations of employee, see sections 845 et seq.*Ante*, p. 1248. Obligations of employer, see sections 842 et seq.*Ante*, p. 1247. Sec. 870. Term of hiring.— Term of hiring.A servant is presumed to have been hired for such length of time as the parties adopt for the estimation of wages. A hiring at a yearly rate is presumed to be for one year; a hiring at a daily rate, tor one day; a hiring by piecework, for no specified term. Sec. 871. Same.— In the absence of any agreement or custom as to the term of service, the time of payment, or rate or value of wages, a servant is presumed to be hired by the month, at a monthly rate of reasonable wages, to be paid when the service is performed. Sec. 872. Renewal of hiring.— Renewal of hiring.Where, after the expiration of an agreement respecting the wages and the term of service, the parties continue the relation of master and servant, they are presumed to have renewed the agreement for the same wages and term of service. Sec. 873. Servant to pay over without demand.— Servant’s duty to pay over.A servant must deliver to his master, as soon as with reasonable diligence he can find him, everything that he receives for his account, without demand; but he is not bound, without orders from his master, to send anything to him through another person. Sec. 874. When servant may be discharged.— Right to discharge.A master may discharge any servant, other than an apprentice, whether engaged for a fixed term or not: 1. if he is guilty of misconduct in the course of his service, or of gross immorality, though unconnected with the same; or, 2. If, being employed about the person of the master, or in a confidential position, the master discovers that he has been guilty of misconduct, before or after the commencement of his service, of such a nature that, if the master had known or contemplated it, he would not have so employed him. 1251 agentsAgents. Sec. 875. Agent to conform to his authority.— Agent to conform to his authority.An agent must not exceed the limits of his actual authority, as defined by chapter 51 of this code on agency.*Post*, p. 1264. Cross References Actual authority, see section 1053.*Post*, p. 1266. Agency, see sections 1035 et seq.*Post*, p. 1264. Ostensible authority, see section 1054.*Post*, p. 1266. Sec. 876. Must keep his principal, informed.— An agent mustMust keep principal informed. use ordinary diligence to keep his principal informed of his acts in the course of the agency. Sec. 877. Collecting agent.— An agent employed to collectCollecting agent. a negotiable instrument must collect it promptly, and take all measures necessary to charge the parties thereto, in case of its dishonor; and, if it is a bill of exchange, must present it for acceptance with reasonable diligence. Sec. 878. Responsibility of subagent.— A mere agentResponsibility of subagent. is not responsible as such to the principal of the latter. factorsFactors. Cross Reference Lien of factor, see section 1396.*Post*, p. 1307. Sec. 879. Factor, what.— A factor is an agent who, in the“Factor” defined. pursuit of an independent calling, is employed by another to sell property for him, and is vested by the latter with the possession or control of the property, or authorized to receive payment therefor from the purchaser. Cross References Factor, what, see section 1082.*Post*, p. 1269. Factor’s authority, see sections 1083 and 1084.*Post*, p. 1269. Factor’s power to pledge principal’s goods, see sections 1083 and 1372.*Post*, pp. 1269, 1304. Sec. 880. Obedience required from factor.— A factor must obeyObedience required. obedience required. 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. Sec. 881. Sales on credit.— A factor may sell property consignedSales on credit. to him on such credit as is usual; but, having once agreed with the purchaser upon the term of credit, may not extend it. Cross Reference Authority to sell on credit, see section 1083.*Post*, p. 1269. Sec. 882. Liability of factor under guaranty commission.— Liability of, 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 fails 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. Sec. 883. Factor can not relieve himself from liability.— Factor can not relieve himself from liability.A factor who receives property for sale, under a general agreement or usage to guarantee the sales or the remittance of the proceeds, 1252can not relieve himself from responsibility therefor without the consent of his principal. CHAPTER 43.— SERVICE WITH-OUT EMPLOYMENTSERVICE WITH-OUT EMPLOYMENT. Sec. 884. Voluntary interference with property.— Voluntary interference with property.One who officiously, and without the consent of the real or apparent owner 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 expenses incurred by him about such service from any profits which his service has caused the thing to acquire for its owner, and must account to the owner for the residue. Cross Reference Gratuitous carriers, see section 888. CHAPTER 44.— CARRIAGE IN GENERALCARRIAGE IN GENERAL. Sec. 885. Contract of carriage.— “Contract of cariage” defined.The contract of carriage is a contract for the conveyance of property, persons, or messages, from one place to another. Cross References Carriage of messages, see section 955.*Post*, p. 1255. Carriage of persons, see sections 890 et seq.*Post*, p. 1253. Carriage of property, see sections 896 et seq.*Post*, p. 1253. Common carriers, defined, see section 956.*Post*, p. 1255. Gratuitous carriers of passengers, care required of, see sections 888 and 890.*Post*, p. 1253. Sec. 886. Different kinds of carriers.— Kinds of carriers.Carriage is either: 1. Inland; or 2. Marine. Sec. 887. Application of chapters 44 to 48 of this code to marine carriers.— Application of certain chapters to marine carriers.*Post*, pp. 1253–1255.This chapter and chapters 45 to 48 of this code, with the exception of section 903, shall have no application to marine carriers. Marine carriers, within the meaning of this section, shall include carriers upon the ocean, upon arms of the sea, and those transiting the canal from ocean to ocean. Cross Reference Inland carriers of property, rights and duties of, see sections 975 et seq.*Post*, p. 1257. Sec. 888. Obligations of gratuitous carriers.— Obligations of gratuitous carriers.Carriers without reward are subject to the same rules as employees without reward, except so far as is otherwise provided by this chapter and chapters 45 to 48 of this code. Cross References Gratuitous carriers, see sections 889, 890, and 897.*Post*, p. 1253. Service without employment, see section 884. Sec. 889. Obligations of gratuitous carrier who has begun to carry.— When carriage has begun.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 carried to as favorable a position as before he commenced the carriage. Cross References Compare with section 890.*Post*, p. 1253. Gratuitous carriers, see sections 888, 890, and 897. 1253 CHAPTER 45.— CARRIAGE OF PERSONSCARRIAGE OF PERSONS. gratuitous carriage.Gratuitous carriage. Sec. 890. Degree of care required.— Degree of care required.A carrier of persons without reward must use ordinary care and diligence for their safe carriage. Cross References Carriers of persons, generally, see sections 96611 So in original. et seq.*Post*, p. 1256. Duty of gratuitous employee, generally, see section 889.*Ante*, p. 1252. Gratuitous carriers, see sections 888, 889, 897.*Ante*, p. 1252. carriage for reward.Carriage for reward. Sec. 891. General duties of carrier.— General duties.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. Cross Reference Limiting liability by contract, see sections 962 to 964.*Post*, p. 1256. Sec. 892. Vehicles.— Vehicles, liability for safety, etc., of.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. Sec. 893. Not to overload his vehicle.— Overloading.A carrier of persons for reward must not overcrowd or overload his vehicle. Sec. 894. Treatment of passengers.— 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. Sec. 895. Rate of speed and delays.— Rate of speed and delays.A carrier of persons for and reward must travel at a reasonable rate of speed, and without any unreasonable delay, or deviation from his proper route. Cross Reference Delay in delivery, damages for, see sections 977 and 1611.*Post*, pp. 1257, 1332. CHAPTER 46.— CARRIAGE OF PROPERTYCARRIAGE OF PROPERTY. general definitionsGeneral definitions. Sec. 896. Freight, consignor, and so forth, what.— Freight, consignor, etc., defined.Property carried is called freight; the reward, if any, to be paid for its carriage is called freightage; the person who delivers the freight to the carrier is called the consignor; and the person to whom it is to be delivered is called the consignee. Cross Reference Freightage, questions relating to, see sections 946 et seq.*Post*, p. 1254. obligations of carrierObligations of carrier. Sec. 897. Care and diligence required of carriers.— Care and diligence.A carrier of property for reward must use at least ordinary care and diligence in the performance of all his duties. A carrier without reward must use at least slight care and diligence. Cross References Alteration of liability by agreement, see sections 962 et seq.*Post*, p. 1256. Gratuitous carriers, see sections 888, 889, and 890. Limiting liability by contract, see sections 962 et seq. 1254 Sec. 898. Carrier to obey directions.— Carriers 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. Sec. 899. Conflict of orders.— Conflict of orders.When the directions of a consignor 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 inconsistent with his own. Sec. 900. Delivery of freight.— Delivery offreight.A carrier of property must deliver it to the consignee, at the place to which it is addressed, in the manner usual at that place. Cross Reference Damages for carrier’s breach of obligation to deliver, see section 1610.*Post*, p. 1332. Sec. 901. Notice when freight not delivered.— 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 consignee be unknown to the carrier, he may give the notice by letter dropped in the nearest post office. Cross Reference Damages for breach of obligation to deliver, see sections 1610 and 1611.*Post*, p. 1332. Sec. 902. When consignee does not accept.— When consignee does not accept.If a consignee does not accept and remove freight within 72 hours after the carrier has fulfilled his obligation to deliver, or duly offered to fulfill the same, the rights and duties of the carrier shall thereafter be the same as *Ante*, pp. 1230–1240.those of a warehouseman as provided in sections 731 to 784 of this code. Bills of lading.bills of lading Sec. 903. Application of federal bill of lading act to shipments wholly within zone.— Federal bill of lading Act applicable.U. S. C., p. 1680.The Federal bill of lading Act (U. S. Code, title 49, §§81 to 124) is hereby made applicable to shipments wholly within the Canal Zone. Freightage.freightage Sec. 946. When freightage is to be paid.— When to be paid.A carrier may require his freightage to be paid upon his receiving the freight; but if he does not demand it then, he can not until he is ready to deliver the freight to the consignee. Cross Reference Freightage, defined, see section 896.*Ante*, p. 1253. Sec. 947. Consignor, when liable for freightage.— Consignor’s liability for freightage.The consignor 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 can not afterwards recover the freightage from the consignor. Sec. 948. Consignee, when liable.— When consignee 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. 1255 Sec. 949. Natural increase of freight.— Natural increase of freight.No freightage can be charged upon the natural increase of freight. Sec. 950. Apportionment by contract.— Apportionment by contract.If freightage is apportioned by a bill of lading or other contract made between a consignor and carrier, the carrier is entitled to payment, according to the apportionment, for so much as he delivers. Sec. 951. Same.— If a part of the freight is accepted by a consignee, without specific objection that the rest is not delivered, the freightage must be apportioned and paid as to that part, though not apportioned in the original contract. Sec. 952. Apportionment according to distance.— Apportionment according to distance.If a consignee voluntarily receives freight at a place short of the one appointed for delivery, the carrier is entitled to a just proportion of the freightage, according to distance. If the carrier, being ready and willing, offers to complete the transit, he is entitled to the full freightage. If he does not thus offer completion, and the consignee receives the freight only from necessity, the carrier is not entitled to any freightage. Sec. 953. Freight carried further than agreed, and so forth.— Freight carried farther 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 compensation, and can not refuse to deliver it, on the demand of the consignee, at the place and time of its arrival. Sec. 954. Carrier’s lien for freightage, services, and advances.— Carrier’s lien.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 discharge a prior lien. His rights to such lien are regulated by chapters 62*Post*, pp. 1296–1306.*Proviso*.Enforcement of lien.*Ante*, p. 1235. to 65 of this code on liens: Provided, however, That such lien may be enforced in the manner provided by sections 759 to 762 of this code relating to warehousemen. Cross Reference Liens, generally, see sections 1309 et seq.*Post*, p. 1296. CHAPTER 47.— CARRIAGE OF MESSAGESCARRIAGE OF MESSAGES. Sec. 955. Degree of care and diligence required.— Degree of care.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 discharge a prior lien. His rights to such lien are regulated by chapters 62 to 65 of this code on liens: *Provided, however*, That such lien may be enforced in the manner provided by sections 759 to 762 of this code relating to warehousemen. CHAPTER 48.— COMMON CARRIERSCOMMON CARRIERS. common carriers in generalIn general. Sec. 956. Common carrier, what.— “Common carriers” defined.Everyone who offers to the public to carry persons, property, or messages is a common carrier of whatever he thus offers to carry. Cross References Carriage, in general, see sections 885 et seq.*Ante*, p. 1252. Marine carriers, defined, see section 887.*Ante*, p. 1252. Rights and liabilities of carriers; see Carriers of persons, sections 96611 So in original. et seq. Carriers of property, sections 975 et seq.*Post*, p. 1257. Sec. 957. Obligation to accept freight.— Obligation to accept freight.A common carrier must, if able to do so, accept and carry whatever is offered to him, at a 1256reasonable time and place, of a kind that he undertakes or is accustomed to carry. Cross References Damage for failure to accept freight, see section 1609.*Post*, p. 1332. Want of room, see section 970.11 So in original. Sec. 961. Compensation.— 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. Cross Reference Lien for freightage, services, and advances, see section 954.*Ante*, p. 1255. Sec. 962. Obligations of carrier altered only by agreement.— Obligations altered only by agreement.The obligations of a common carrier can not be limited by general notice on his part, but may be limited by special contract. Cross References Compare with sections 964 and 978.*Post*, p. 1257. Limiting liability by special contract, see section 963. Sec. 963. Certain agreements void.— 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 willful wrong of himself or his servants. Cross Reference Contract exempting one from liability for negligent or unlawful acts, illegal, see section 573.*Ante*, p. 1201. Sec. 964. Effect of written contract.— Effect of written contract.A passenger, consignor, or consignee, by accepting a ticket, bill of lading, or written contract for carriage, with a knowledge of its terms, assents to the rate of hire, the time, place, and manner of delivery therein stated; and also to the limitation stated therein upon the amount of the 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 animals carried. But his assent to any other modification of the carrier’s obligations contained in such instrument can be manifested only by his signature to the same. Sec. 965. Loss of valuable letters.— Loss of valuable letters.A common carrier is not responsible for loss or miscarriage of a letter, or package having 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. Cross References Consigner of valuables to declare their nature. see section 978.*Post*, p. 1257. Contract limiting loss where value not stated, see section 964. Common carriers of persons.common carriers of persons Sec. 967. Liability for luggage.— Liability for luggage.The liability of a carrier for luggage received by him with a passenger is the same as that of a common carrier or property. Cross Reference Liability of carriers, generally, see sections 975 et seq. Sec. 971. Regulations for conduct of business.— Regulations for conduct of business.A common carrier of persons may make rules for the conduct of his business, and 1257may require passengers to conform to them, if they are lawful, public, uniform in their application, and reasonable. Cross Reference Ejection of passenger not conforming to regulations, see section 973. Sec. 972. Fare, when payable.— When fare payable.A common carrier may demand the fare of passengers, either at starting or at any subsequent time. Sec. 973. Ejection of passengers.— 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 dwelling house. Cross Reference Power to make rules for regulation of business, see section 971.*Ante*, p. 1256. Sec. 974. Fare not payable after ejection.— Fare not payable after ejection.After having ejected a passenger, a carrier has no right to require the payment of any part of his fare. common carriers of propertyCommon carriers of property. Sec. 975. Liability of inland carriers for loss.— Liability of inland carriers for loss.Unless the consignor accompanies the freight and retains exclusive control thereof, an inland common carrier of property is liable, from the time that he accepts until he relieves himself from liability pursuant to sections 900 to 902, *Ante*, p. 1254.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; 3. The act of the law; or 4. Any irresistible superhuman cause. Cross References Liability as warehouseman, see section 901.*Post*, p. 1254. Selling perishable articles, see section 983.11 So in original. Termination of liability, see sections 900 to 902.*Post*, p. 1254. Sec. 976. When exemptions do not apply.— When exemptions do not apply.A common carrier is liable, even in the cases excepted by section 975, if his want of ordinary care exposes the property to the cause of the loss. Sec. 977. Liability for delay.— Liability for delay.A common carrier is liable for delay only when it is caused by his want of ordinary care and diligence. Cross Reference Delay in carriage, liability for, see sections 895 and 1611.*Ante*, p. 1253; *post*, p. 1332. Sec. 978. Consignor of valuables to declare their nature.— Consignor of valuables to declare value.A common carrier of gold, silver, platinum, 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 of the bill of lading. 1258 Cross References Contract limiting loss where value not declared, see section 964.*Ante*, p. 1256. Letters or packages containing valuables, liability for loss of, see section 965.*Ante*, p. 1256. Sec. 979. Delivery of freight beyond usual route.— Delivery of freight beyond usual route.If a common 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 ability ceases upon making such delivery. Cross Reference Delivery, in general, see section 900.*Ante*, p. 1254. Sec. 980. Proof to be given in case of loss.— Proof in case of loss.If freight addressed to a place beyond the usual route of the common carrier 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 will be himself liable therefor. Sec. 981. Carrier’s services, other than carriage and delivery.— 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 chapters on deposit and the chapters on service. Cross References Deposit, see sections 699 et seq.*Ante*, p. 1226. Service, see sections 841 et seq.*Ante*, p. 1247. CHAPTER 49.— TRUSTS IN GENERALTRUSTS IN GENERAL. Nature and creation.nature and creation of a trust Sec. 986. Trusts classified.— Trusts classified.A trust is either: 1. Voluntary, or 2. Involuntary. Sec. 987. Voluntary trust, what.— Voluntary.A voluntary trust is an obligation arising out of a personal confidence reposed in, and voluntarily accepted by, one for the benefit of another. Sec. 988. Involuntary trust, what.— Involuntary.An involuntary trust is one which is created by operation of law. Cross Reference Involuntary trust, see sections 994, 995, and 1008.*Post*, pp. 1259, 1261. Sec. 989. Parties to the contract.— Parties.The person whose confidence 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. Sec. 990. What constitutes one a trustee.— What constitutes one a trustee.Everyone who voluntarily assumes a relation of personal confidence with another is deemed a trustee, within the meaning of this chapter, not only as to the person who 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. Sec. 991. For what purpose a trust may be created.— For what purpose a trust may be created.A trust may be created for any purpose for which a contract may lawfully be made, except as otherwise prescribed by the chapter on transfer of property. 1259 Sec. 992. Voluntary trust, how created as to trustor.— Voluntary trust, how created as to trustor.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, purpose, and beneficiary of the trust. Cross References Creation of involuntary trust, see sections 994 and 995. Trusts for benefit of third persons, see section 1011.*Post*, p. 1261. Sec. 993. How created as to trustee.— As to trustee.A voluntary trust is created, as to the trustee, by any words or acts of his indicating, with reasonable certainty: 1. His acceptance of the trust, or his acknowledgment, made upon sufficient consideration, of its existence; and 2. The subject, purpose, and beneficiary of the trust. Sec. 994. Involuntary trustee, who is.— “Involuntary trustee.”One who wrongfully detains a thing is an involuntary trustee thereof, for the benefit of the owner. Cross References Compensation of involuntary trustee, see sections 1025 and 1076.*Post*, pp. 1263, 1269. Involuntary trustee, who is, see sections 988 and 1008.*Ante*, p. 1258; *post*, p. 1261. Sec. 995. Involuntary trust resulting from fraud, mistake, etc.— Involuntary trust resulting from fraud, mistake, etc.One who gains a thing by fraud, accident, mistake, undue mistake, etc. influence, the violation of a trust, or other wrongful act, is, unless he has some other and better right thereto, an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it. Cross References Compensation of involuntary trustee, see sections 1025 and 1026.*Post*, p. 1263. Involuntary trustee, who is, see sections 988, 994, and 1008.*Ante*, p. 1258; *post*, p. 1261. obligations of trusteesObligations of trustees. Sec. 996. Trustee’s obligation to good faith.— Good faith.In all matters connected with his trust, a trustee is bound to act in the highest good faith toward his beneficiary, and may not obtain any advantage therein over the latter by the slightest misrepresentation, concealment, threat, or adverse pressure of any kind. Sec. 997. Trustee not to use property for his own profit.— Not to use property for 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. Cross References Presumption of undue influence on transactions between the trustee and beneficiary, see section 1003.*Post*, p. 1260. Purchaser from trustee charged with the trust when, see section 1008.*Post*, p. 1261. Violations of duties by trustee are fraudulent, see section 1002.*Post*, p. 1260. Sec. 998. Certain transactions forbidden.— Transactions forbidden.Neither a trustee nor any of his agents may take part in any transaction concerning the trust in which he or any one for 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 1260without the use of any influence on the part of the trustee, permits him to do so; 2. When the beneficiary not having capacity to contract, the proper court, upon the like information of the facts, grants the like permission; or 3. When some of the beneficiaries having capacity to contract, and some not having it, the former grant permission for themselves, and the proper court for the latter, in the manner above prescribed. Cross References Duty to inform beneficiary of adverse interest, see section 1001. Undertaking inconsistent trust, see section 1000. Sec. 999. Trustee’s influence not to be used for his advantage.— 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. Sec. 1000. Trustee not to assume a trust adverse to interest of beneficiary.— 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 interest of his beneficiary in the subject of the trust, without the consent of the latter. Cross References Compare section 998.*Ante*, p. 1259. Removal of trustee, see sections 1030 and 1031.*Post*, p. 1263. Trustee’s duty to disclose adverse interest, see section 1001. Sec. 1001. To disclose adverse interest.— 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. Sec. 1002. Trustee guilty of fraud, when.— When guilty of fraud.*Ante*, p. 1259.Every violation of the provisions of sections 996 to 1001 is a fraud against the beneficiary of a trust. Sec. 1003. Presumption against trustees.— Presumption against trustees.All transactions between a trustee and his beneficiary during the existence of the trust, or while the influence acquired by the trustee remains, by which he obtains any advantage from his beneficiary, are presumed to be entered into by the latter without sufficient consideration, and under undue influence. Sec. 1004. Trustee mingling trust property with his own.— Trustee mingling property.A trustee who willfully 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, and for the value of its use. Sec. 1005. Measure of liability for breach of trust.— Measure of liability for breach of trust.*Ante*, p. 1259.A trustee who uses or disposes of the trust property, contrary to section 997, 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. Cross References Degree of diligence requisite, see section 1016.*Post*, p. 1262. Liability for noninvestment of funds, see section 1019.*Post*, p. 1262. Sec. 1006. Same.— When unintentional breach.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 beneficiary, is liable only to make good whatever is lost to the beneficiary by his error. 1261 Sec. 1007. Cotrustees, how far liable for each other.— Cotrustees, liability.A trustee is responsible for the wrongful acts of a cotrustee to which he consented, or which, by his negligence, he enabled the latter to commit, but for no others. Cross Reference Compare with section 1022.*Post*, p. 1262. obligations of third personsObligations of third persons. Sec. 1008. Third persons, when involuntary trustees.— When involuntary trustees.Everyone to whom property is transferred in violation of a trust, holds the same as an involuntary trustee under such trust, unless he purchased it in good faith, and for a valuable consideration. Cross Reference Involuntary trustees, who are, see sections 988, 994, and 995.*Ante*, pp. 1258, 1259. Sec. 1009. When third person must see to Application of trust property.— 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. CHAPTER 50.— TRUSTS FOR BENEFIT OF THIRD PERSONSTRUSTS FOR BENEFIT OF THIRD PERSONS. nature and creation of the trustNature and creation of trust. Sec. 1010. Who are trustees within scope of this chapter.— Who are trustees within scope of this chapter.The provisions of this chapter apply only to express trusts, created for the benefit of another than the trustor, and in which the title to the trust property is vested in the trustee; not including, however, those of executors, administrators, and guardians, as such. Sec. 1011. Creation of trust.— 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. Cross References Promise for benefit of third person, see section 494.*Ante*, p. 1191. Revoking trust, beneficiary’s consent necessary, see section 1028.*Post*, p. 1263. Sec. 1012. Trustees appointed by court.— Court, etc., as trustor.When a trustee is appointed by a court or public officer, as such, such court or officer is the trustor, within the meaning of section 1011. Sec. 1013. Declaration of Trust.— Declaration of trust.The nature, extent, and object of a trust are expressed in the declaration of trust. Sec. 1014. 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 writing, all previous declarations by the same trustor are merged therein. obligations of trusteesObligations of trustees. Sec. 1015. Trustees must obey declaration of trust.— 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 interested, in the same manner, and to the same extent, as an employee. 1262 Cross Reference Authority of trustee, generally, see section 1021. Sec. 1016. Degree of care and diligence in execution of trust.— Degree of care and diligence.A trustee, whether he receives any compensation or not, must use at least ordinary care and diligence in the execution of his trust. Cross Reference Obligations of trustees, see, generally, sections 996 et seq.*Ante*, p. 1259. Sec. 1017. Duty of trustee as to appointment of successor.— Duty 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. Cross Reference Succession or appointment of new trustees, see section 1032 et seq.*Post*, p. 1264. Sec. 1018. Investment of money by trustee.— Investment of money by.A trustee must invest money received by him under the trust, as fast as he collects a sufficient amount, in such manner as to afford reasonable security and interest for the same. Cross Reference Liability for interest or failure to invest funds, see section 1019. Sec. 1019. Interest, simple or compound, on omission to invest trust moneys.— Trustee’s liability for interest.If a trustee omits to invest the trust moneys according to section 1018, he must pay simple interest thereon, if such omission is negligent merely, and compound interest if it is willful. Cross Reference Trustee’s liability for interest, compare with section 1005.*Ante*, p. 1260. Sec. 1020. Purchase by trustee of claims against trust fund.— Purchase by trustee of claims against trust fund.A trustee can not enforce any claim against the trust property which he purchases after or in contemplation of his appointment as trustee; but he may be allowed, by any competent court, to charge to the trust property what he has in good faith paid for the claim, upon discharging the same. Cross Reference Purchasing debts against the trust estate prohibited, see section 998.*Ante*, p. 1259. Trustee’s powers.powers of trustees Sec. 1021. Trustee’s power as agent.— As agent.A trustee is a general agent for the trust property. His authority is such as is conferred upon him by the declaration of trust and by this chapter, and none other. His acts, within the scope of his authority, bind the trust property to the same extent as the acts of an agent bind his principal. Cross References Agent’s acts binding principal, see sections 1063 et seq.*Post*, p. 1267. For what purposes trusts may be created, see section 991.*Ante*, p. 1258. Powers to two or more trustees, see section 1022. Sec. 1022. All must act.— All must act.Where there are several cotrustees, all must unite in any act to bind the trust property, unless the declaration of trust otherwise provides. 1263 Cross References Liability for acts of cotrustee, see section 1007.*Ante*, p. 1261. Survival of trust, see section 1033.*Post*, p. 1264. Sec. 1023. Discretionary powers.— Discretionary powers.A discretionary power conferred upon a trustee is presumed not to be left to his arbitrary discretion, but may be controlled by the proper court if not reasonably exercised, unless an absolute discretion is clearly conferred by the declaration of trust. rights of trusteesRights of trustees. Sec. 1024. Indemnification of trustee.— Indemnification.A trustee is entitled to the repayment, out of the trust property, of all expenses actually and properly incurred by him in the performance of his trust. He is entitled to the repayment of even unlawful expenditures, if they were productive of actual benefit to the estate. Cross Reference Reimbursement on purchase of claims against estate, see section 1020.*Ante*, p. 1262. Sec. 1025. Compensation of trustee.— Compensation.Except as provided in the Code of Civil Procedure, when a declaration of trust is silent upon the subject of compensation the trustee is entitled to the same compensation as an executor. If it specifies the amount of his compensation, he is entitled to the amount thus specified and no more. If it directs that he shall be allowed a 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. Cross Reference Involuntary trustee entitled to no compensation when, see section 1026. Sec. 1026. Involuntary trustee.— Involuntary trustee.An involuntary trustee, who becomes such through his own fault, has none of the rights mentioned in this subchapter. Cross Reference Involuntary trustee, defined, see sections 988, 994, and 995.*Ante*, pp. 1258, 1259. termination of the trustTermination of the trust. Sec. 1027. Trust, how extinguished.— How extinguished.A trust is extinguished by the entire fulfillment of its object, or by such object becoming impossible or unlawful. Sec. 1028. Not revocable.— Not revocable.A trust can not 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 power must be strictly pursued. Sec. 1029. Trustee’s office, how vacated.— How trustee’s office vacated.The office of a trustee is vacated: 1. By his death; or 2. By his discharge. Sec. 1030. Trustee, how discharged.— How discharged.A trustee can be discharged from his trust only as follows: 1. By the extinction of the trust; 2. By the completion of his duties under the trust; 1264 3. By such means as may be prescribed by the declaration of trust; 4. By the consent of the beneficiary, if he have capacity to contract; 5. By the judgment of a competent tribunal, in a direct proceeding for that purpose, that he is of unsound mind; or 6. By the district court. Sec. 1031. Removal by district court.— Removal by district court.The district court may remove any trustee who has violated or is unfit to execute the trust, or may accept the resignation of a trustee. Cross Reference Removal for adverse interest, see section 1001.*Ante*, p. 1260. Succession or appointment of new trustees.succession or appointment of new trustees Sec. 1032. Appointment of trustee by court to fill vacancy.— Appointment by court.The district court must appoint a trustee whenever there is a vacancy, and the declaration of trust does not provide a practical method of appointment. In all cases of 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 incompetency specified in the Code of Civil Procedure, to discharge the duties of trustee, the court must appoint such nominee, or nominees, as trustee, or trustees, as the case may be. Sec. 1033. Survivorship between cotrustees.— Survivorship between cotrustees.On the death, renunciation, or discharge of one of several cotrustees the trust survives to the others. Sec. 1034. District court to appoint trustee when.— When district court to appoint.When a trust exists without any appointed trustee, or where all the trustees renounce, die, or are discharged, the district court must appoint another trustee and direct the execution of the trust. The court may, in its discretion, appoint the original number, or any less number of trustees. CHAPTER 51.— AGENCY IN GENERALAGENCY IN GENERAL. definition of agency Sec. 1035. Agency, what.— Definition.An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency. Cross References Agents, see sections 875 to 878.*Ante*, p. 1251. Factors, see sections 879 et seq.*Ante*, p. 1251. Sec. 1036. Who may appoint, and who may be an agent.— Capacity to appoint; to serve as.Any person having capacity to contract may appoint an agent, and any person may be an agent. Sec. 1037. Agents, general or special.— General or special.An agent for a particular act or transaction is called a special agent. All others are general agents. Sec. 1038. Agency, actual or ostensible.— Actual or ostensible.An agency is either actual or ostensible. 1265 Cross References Actual agent’s authority, see sections 1052, 1053, 1055, and 1056.*Post*, p. 1266. Ostensible agent’s authority, see sections 1052, 1054 to 1056, and 1067.*Post*, pp. 1266, 1267. Sec. 1039. Actual agency.— Actual agency.An agency is actual when the agent is really employed by the principal. Sec. 1040. Ostensible agency.— Ostensible.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. Cross Reference Compare section 1054.*Post*, p. 1266. authority of agentsAuthority of agents. Sec. 1041. What authority may be conferred.— Extent.An agent may be authorized to do any acts which his principal might do, except those to which the latter is bound to give his personal attention. Cross Reference Delegation of authority by agent, see sections 1077 to 1070.*Post*, p. 1269. Sec. 1042. Agent may perform acts required of principal by code.— All legal acts.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. Sec. 1043. Agent can not have authority to defraud principal.— Authority to defraud principal denied.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. Sec. 1044. Creation of agency.— Creation of agency.An agency may be created, and an authority may be conferred by a precedent authorization or a subsequent ratification. Sec. 1045. Consideration unnecessary.— Consideration unnecessary.A consideration is not necessary to make an authority, whether precedent or subsequent, binding upon the principal. Sec. 1046. Form of authority.— Form of authority.An oral authorization is sufficient for any purpose, except that an authority to enter into a contract required by law to be in writing can only be given by an instrument in writing. Cross References Power of attorney to execute mortgage, see section 1345*Post*, p. 1301. Statute of frauds, see sections 451 and 600.*Ante*, pp. 1185, 1204. Sec. 1047. Ratification of part of a transaction.— Ratification of part of transaction.Ratification of part of an indivisible transaction is a ratification of the whole. Sec. 1048. Ratification of agent’s act.— Of agent’s act.A ratification can be made only in the manner that would have been necessary to confer an original authority for the act ratified, or where an oral authorization would suffice, by accepting or retaining the benefit of the act with notice thereof. Cross References Ratification of part, see section 1047. Ratification is not binding, and may be rescinded, if made without full knowledge of the facts, see section 1051.*Post*, p. 1266. Sec. 1049. When ratification void.— When ratification void.A ratification is not valid unless, at the time of ratifying the act done, the principal has power to confer authority for such an act. 1266 Sec. 1050. Ratification not to work injury to third persons.— Ratification not to work injury to third person.No unauthorized act can be made valid, retroactively, to the prejudice of third persons, without their consent. Sec. 1051. Rescission of ratification.— Rescission of.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. Sec. 1052. Measure of agent’s authority.— Measure of agent’s authority.An agent has such authority as the principal, actually or ostensibly, confers upon him. Cross References Actual agent, defined, see section 1039.*Ante*, p. 1265. Extent of authority, see sections 1055 to 1057 and 1063.*Post*, p. 1267. Ostensible agency, see sections 1054 to 1056, 1063, and 1067.*Post*, p. 1267. Sec. 1053. Actual authority, what.— Actual authority.Actual authority is such as a principal intentionally confers upon the agent, or intentionally, or by want of ordinary care, allows the agent to believe himself to possess. Sec. 1054. Ostensible authority, what.— Ostensible.Ostensible authority is such as a principal, intentionally or by want of ordinary care, causes or allows a third person to believe the agent to possess. Cross References Estoppel from a subsequent ratification, see sections 1044, 1048, and 1049 to 1051.*Ante*, p. 1265. Ostensible agent, defined, see section 1040.*Ante*, p. 1265. Sec. 1055. Agent’s authority as to persons having notice of restrictions upon it.— Persons having notice of restrictions.Every agent has actually such authority as is defined by this chapter and *Post*, p. 1269.chapter 52 of this code, 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. Cross Reference Extent of authority, see sections 1052, 1056, 1057, and 1063.*Post*, p. 1267. Sec. 1056. Agent’s necessary authority.— Agent’s necessary authority.An agent has authority: 1. To do everything necessary or proper and usual, in the ordinary course of business, for effecting the purpose of his agency; and 2. 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 person to whom the representation is made. Cross Reference Extent of authority, see sections 1052, 1055, 1057, and 1063.*Post*, p. 1267. Sec. 1057. Agent’s power to disobey instructions.— Power to disobey instructions.An agent has power to disobey 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. Cross Reference Extent of authority, see sections 1052, 1055, 1056, and 1063.*Post*, p. 1267 1267 Sec. 1058. Authority to be construed by its specific rather than by its general terms.— Authority construed by specific 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. Sec. 1059. Exceptions to general authority.— Exceptions to general authority.An authority expressed in general terms, however broad, does not authorize an agent: 1. To act in his own name, unless it is the usual course of business to do so; 2. To define the scope of his agency; or 3. To do any act which a trustee is forbidden to do by sections 996 to 1007. Cross References Defining scope of agency, see section 1056 (2).*Ante*, p. 1266. Obligation of trustees, see sections 996 to 1007.*Ante*, p. 1259. Sec. 1060. What included in authority to sell personal property.— Authority to sell personal property.An authority to sell personal property includes authority to warrant the title of the principal and the quality and quantity of the property. Sec. 1061. Authority of general agent to receive price of property.— Authority to receive price of property.A general agent to sell, who is intrusted by the principal with the possession of the thing sold, has authority to receive the price. Cross Reference Agent to collect, see section 877.*Ante*, p. 1251. Sec. 1062. Authority of special agent to receive price.— 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. mutual obligations of principals and third personsMutual obligations of principals and third persons. Sec. 1063. Principal, how affected by acts of agent within the scope of his authority.— Acts of agent within scope of authority.An agent represents his principal for all purposes within the scope of his actual or ostensible authority, and all the rights and liabilities which would accrue to the agent from transactions within such limit, if they had been entered into on his own account, accrue to the principal. Cross Reference Extent of agent’s authority, see sections 1052, 1055, 1056, and 1057.*Ante*, p. 1266. Sec. 1064. Principal, when bound by incomplete execution of authority.— When principal bound by incomplete execution of authority.A principal is bound by an incomplete execution of an authority when it is consistent with the whole purpose and scope thereof, but not otherwise. Sec. 1065. Notice to agent, when notice to principal.— Notice to agent, as 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. Sec. 1066. Obligation of principal when agent exceeds his authority.— Obligation when agent exceeds authority.When an agent exceeds his authority, his principal is bound by his authorized acts so far only as they can be plainly separated from those which are unauthorized. Sec. 1067. For acts done under a merely ostensible authority.— Acts done under ostensible authority.A principal is bound by acts of his agent, under a merely ostensible 1268authority, to those persons only who have in good faith, and without want of ordinary care, incurred a liability or parted with value, upon the faith thereof. Cross Reference Ostensible authority, see sections 1054 to 1056.*Ante*, p. 1266. Sec. 1068. When exclusive credit is given to agent.— When exclusive credit given agent.If exclusive credit is given to an agent by the person dealing with him, his principal is exonerated by payment or other satisfaction made by him to his agent in good faith, before receiving notice of the creditor’s election to hold him responsible. Sec. 1069. Rights of person who deals with agent without knowledge of agency.— Rights of person against undisclosed principal.One who deals with an agent without knowing or having reason to believe that the agent acts as such in the transaction, may set off against any claim of the principal arising out of the same, all claims which he might have set off against the agent before notice of the agency. Sec. 1070. Instrument intended to bind principal does bind him.— Instrument intended to bind principal.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. Sec. 1071. Principal’s responsibility for agent’s negligence, wrongful act, or omission.— Liability for agent’s negligence, etc.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 committed by such agent in and as a part of the transaction of such business, and for his willful omission to fulfill the obligations of the principal. Sec. 1072. Same.— Exception.A principal is responsible for no other wrongs committed by his agent than those mentioned in section 1071, unless he has authorized or ratified them, even though they are committed while the agent is engaged in his service. Obligations of agents to third persons.obligations of agents to third persons Sec. 1073. Warranty of authority.— 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. Cross Reference Damages for breach of warranty of authority, see section 1612.*Post*, p. 1332. Sec. 1074. Agent’s responsibility to third persons.— When personally liable.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, without believing, in good faith, that he has authority to do so; or 3. When his acts are wrongful in their nature. Sec. 1075. Obligation of agent to surrender property to third person.— Obligation to surrender property to third person.If an agent receives anything for the benefit of his principal, to the possession of which another person is entitled, he must, on demand, surrender it to such person, or so much of it as he has under his control, at the time of demand, on being indemnified for any advance which he has made to his principal, in good faith, on 1269account of the same; and is responsible therefor, if, after notice from the owner, he delivers it to his principal. Cross Reference Compare with sections on deposit, see sections 705, 708, and 709.*Ante*, p. 1227. Sec. 1076. Code provisions governing.— Code provisions governing.*Ante*, p. 1125.The provisions of this subchapter are subject to the provisions of sections 15 to 28. delegation of agency Sec. 1077. Agent’s delegation of his powers.— Agent’s delegation of 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 can not himself, and the subagent can lawfully perform; 3. When it is the usage of the place to delegate such powers; or 4. When such delegation is specially authorized by the principal. Sec. 1078. Agent’s unauthorized employment of subagent.— 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. Cross Reference As to liability of agent of an agent to principal, see section 878.*Ante*, p. 1251. Sec. 1079. Subagent, rightfully appointed, represents principal.— Subagent rightfully appointed represents principal.A subagent, lawfully appointed, represents the principal in like principal, manner with the original agent; and the original agent is not responsible to third persons for the acts of the subagent. termination of agency Sec. 1080. Termination of agency.— 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 agent to act as such. Sec. 1081. Same.— Unless the power of an agent is coupled with an interest in the subject of the agency, it is terminated, as to every person having notice thereof, by— 1. Its revocation by the principal; 2. His death; or 3. His incapacity to contract. CHAPTER 52.— FACTORSFACTORS. Sec. 1082. Factor, what.— Definition.*Ante*, p. 1251.A factor is an agent, as defined by section 879. Sec. 1083. Actual authority of factor.— Actual authority.In addition to the authority of agents in general, a factor has actual authority from his principal, unless specially restricted: 1. To insure property consigned to him uninsured; 2. To sell, on credit, anything intrusted to him for sale, except such things as it is contrary to usage to sell on credit; but not to pledge, mortgage, or barter the same; and 1270 3. To delegate his authority to his partner or servant, but not to any person in an independent employment. Cross Reference Sale on credit by factor, see section 881.*Ante*, p. 1251. Sec. 1084. Ostensible authority.— Ostensible authority.A factor has ostensible authority to deal with the property of his principal as his own, in transactions with persons not having notice of the actual ownership. CHAPTER 53.— PARTNERSHIP IN GENERALPARTNERSHIP IN GENERAL. what constitutes a partnership Sec. 1085. Partnership, what.— What constitutes.Partnership is the association of two or more persons, for the purpose of carrying on business together, and dividing its profits between them. Cross References Dividing profits implies division of losses, see section 1091. General partnership, what, see section 1100.*Post*, p. 1272. Sec. 1086. Shipowners.— Shipowners.Part owners of a ship do not, by simply using it in a joint enterprise, become partners as to the ship. Sec. 1087. Formation of partnership.— Formation of partnership.A partnership can be formed only by the consent of all the parties thereto, and therefore no new partner can be admitted into a partnership without the consent of every existing member thereof. Cross Reference Formation of special partnership, see sections 1124 et seq.*Post*, p. 1275. Partnership property.partnership property Sec. 1088. Partnership property, what.— Of what it consists.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 subsequently acquired thereby. Sec. 1089. Partner’s interest in partnership property.— Partner’s interest in.The interest of each member of a partnership extends to every portion of its property. Sec. 1090. Partner’s share in profits and losses.— 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. Cross Reference Accounting between partners, see section 1096.*Post*, p. 1271. Sec. 1091. When division of losses implied.— When division of losses implied.An agreement to divide the profits of a business implies an agreement for a corresponding division of its losses, unless it is otherwise expressly stipulated. Sec. 1092. Partner may require application of partnership debts.— Application of partnership property to 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. 1271 Sec. 1093. What property is partnership property by presumption.— Partnership property by presumption.Property acquired with partnership funds is presumed to be partnership property. mutual obligation of partnersMutual obligation of partners. Sec. 1094. Partners trustees for each other.— Trustees for each other.The relations of partners are confidential. They are trustees for each other within the meaning of chapter 49 of this code, and their obligations as such trustees are defined by that chapter. Cross Reference Chapter 49 of this code, see sections 986 to 1009.*Ante*, p. 1258. Sec. 1095. Good faith to be observed between them.— Good faith.In all proceedings connected with the formation, conduct, dissolution, and liquidation of a partnership, every partner is bound to act in the highest good faith toward his copartners. He may not obtain any advantage over them in the partnership affairs by the slightest misrepresentation, concealment, threat, or adverse pressure of any kind. Cross References In what business partner may not engage, see sections 1106 et seq.*Post*, p. 1273. Mutual obligations of partners, see sections 1105 et seq.*Post*, p. 1273. Partners act in bad faith, effect of, see section 1104.*Post*, p. 1272. Sec. 1096. Mutual liability of partners to account.— Mutual liability to account.Each member of a partnership must account to it for everything that he receives on account thereof, and is entitled to reimbursement therefrom for everything that he properly expends for the benefit thereof, and to be indemnified thereby for all losses and risks which he necessarily incurs on its behalf. Cross Reference Partner’s acts bind firm, see section 1102.*Post*, p. 1272. Sec. 1097. No compensation for services to firm.— No compensation for services.A partner is not entitled to any compensation for services rendered by him to the partnership, except by special agreement. renunciation of partnershipRenunciation of partnership. Sec. 1098. Renunciation of future profits exonerates from liability.— Renunciation of future profits exonerates from liability.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 copartners, that he has made such renunciation, and that, so far as may be in his power, he dissolves the partnership and does not intend to be liable on account thereof for the future. Cross Reference Dissolution of partnership, see sections 1113 et seq.*Post*, p. 1274. Sec. 1099. Effect of renunciation.— Effect of renunciation.After a partner has given notice of his renunciation of the partnership, he can not claim any of its subsequent profits, and his copartners may proceed to dissolve the partnership. 1272 Cross References Dissolution of partnership, see section 1113.*Post*, p. 1274. Liquidation of partnership, see sections 1119 et seq.*Post*, p. 1275. CHAPTER 54.— GENERAL PARTNERSHIPGENERAL PARTNERSHIP. Definition.what is a general partnership Sec. 1100. General partnership, what.— Every partnership that is not formed in accordance with the law concerning special partnerships, and every special partnership, so far only as the general partners are concerned, is a general partnership. Cross References Partnership, what, see section 1085.*Ante*, p. 1270. Special partnerships, see sections 1124 and 1146.*Post*, pp. 1275, 1278. Special partnership becomes general partnership when, see section 1145.*Post*, p. 1278. Powers and authority of partners.powers and authority of partners Sec. 1101. Power of majority of partners.— Majority.Unless otherwise expressly stipulated, the decision of the majority of the members of a general partnership binds it in the conduct of its business. Cross Reference Power, rights, and duties of special partners, see section 1131 et seq.*Post*, p. 1276. Sec. 1102. Authority of individual partner.— Individual.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. Cross References Common liability for losses, see section 1096.*Ante*, p. 1271. Liability of partners for each other’s acts, see section 1110.*Post*, p. 1273. Sec. 1103. What authority partner has not.— Limitations on authority.A partner, as such, has not authority to do any of the following acts unless his copartners have wholly 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 would make it impossible to carry on the ordinary business of the partnership; 5. To confess a judgment; 6. To submit a partnership claim to arbitration; or 7. To do any other act not within the scope of section 1102. Sec. 1104. Partner’s acts in bad faith, when ineffectual.— Acts in bad faith ineffectual.A partner is not bound by any act of a copartner, in bad faith toward him, though within the scope of the partner’s powers, except in favor of persons who have in good faith parted with value in reliance upon such act. 1273 Cross References Good faith, duty to observe, see section 1095.*Ante*, p. 1271. Liability of partners for each other’s acts, see section 1110. Partners are trustees for each other, see section 1094.*Ante*, p. 1271. mutual obligations of partnersMutual obligations. Sec. 1105. Profits of individual partner.— 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. Cross Reference Mutual obligations of partners, see sections 1094 et seq.*Ante*, p. 1271. Sec. 1106. In what business partner may not engage.— In what business partner may not engage.A general partner who 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 be advantageous to it. Cross Reference Accounting by partner, see section 1108. Sec. 1107. In what he may engage.— In what he may engage.A partner may engage in any separate business except as otherwise provided by sections 1105 and 1106. Sec. 1108. Must account to firm for profits.— Must account to firm for profits.A general partner transacting business contrary to the provisions of this subchapter may be required by any copartner to account to the partnership for the profits of such business. liability of partnersLiability of partners. Sec. 1109. Liability of partners to third persons.— To third persons.Every general partner is liable to third persons for all the obligations of the partnership, jointly with his copartners. Cross References As to joint and several obligations generally, see sections 427 et seq.*Ante*, p. 1182. Effect of release of one of several joint debtors, see section 488.*Ante*, p. 1190. Liability of general partners in special partnership, see section 1139.*Post*, p. 1277. Liability of special partners, see section 1140.*Post*, p. 1277. Special partner liable as general partner when, see section 1141.*Post*, p. 1277. Sec. 1110. Liability for each other’s acts as agents.— Liability as agents.The liability of general partners for each other’s acts is defined by chapter 51 of this code on agency. Cross References Acts a partner is not authorized to do, see section 1103.*Ante*, p. 1272. Authority of individual partner, see sections 1102 and 1103.*Ante*, p. 1272. Effect of acts of partner done in bad faith, see section 1104.*Ante*, p. 1272. Agency, see sections 1035 to 1081.*Ante*, p. 1264. Sec. 1111. Liability of one held out as partner.— Liability of one held out as partner.Anyone permitting himself to be represented as a partner, general or special, is liable, as such, to third persons to whom such representation is communicated, and who, on the faith thereof, give credit to the partnership. Sec. 1112. No one liable as partner unless held out as such.— No liability unless so held out.No one is liable as a partner who is not such in fact, except as provided in section 1111. 1274 Termination of partnership.termination of partnership. Sec. 1113. Duration of partnership.— Duration.If no term is prescribed by agreement for its duration, a general partnership continues until dissolved by a partner or by operation of law. Cross References Dissolution of special partnership, see section 1145.*Post*, p. 1278. Liquidation of partnership, see sections 1119 et seq.*Post*, p. 1275. Renunciation of partnership by partner, see sections 1098 and 1099.*Ante*, p. 1271. Sec. 1114. Total dissolution of partnership.— Total dissolution.A general partnership is dissolved as to all the partners— 1. By lapse of the time prescribed by agreement for its duration; 2. By the expressed will of any partner, if there is no such agreement; 3. By the death of a partner; 4. By the transfer to a person, not a partner, of the interest of any partner in the partnership property; 5. By war, or the prohibition of commercial intercourse between the country in which one partner resides and that in which another resides; or 6. By a judgment of dissolution. Cross References Partner’s power after dissolution of firm, see sections 1119 et seq.*Post*, p. 1275. Renunciation of partnership by partner, see sections 1098 and 1099.*Ante*, p. 1271. Special partnership, dissolution of, see section 1145.*Post*, p. 1278. Sec. 1115. Partial dissolution.— Partial.A general partnership may be dissolved, as to himself only, by the expressed will of any partner, notwithstanding his agreement for its continuance, subject, 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. Sec. 1116. Partner entitled to dissolution.— When partner entitled to.A general partner is entitled to a judgment of dissolution— 1. When he, or another partner, becomes legally incapable of contracting; 2. When another partner fails to perform his duties under the agreement of partnership, or is guilty of serious misconduct; or 3. When the business of the partnership can be carried on only at a permanent loss. Cross Reference Dissolution on renunciation of partnership by copartner, see section 1099.*Ante*, p. 1271.Notice of termination. Sec. 1117. Notice of termination.— The liability of a general partner for the acts of his copartners continues, even after a dissolution of the copartnership, in favor of persons who have had dealings with and given credit to the partnership during its existence, until they have had personal notice of the dissolution; and in favor of other persons until such dissolution has been advertised in a news-paper printed in English and of general circulation in the Canal Zone, to the extent in either case to which such persons part with value in good faith, and in the belief that such partner is still a member of the firm. Cross Reference Compare section 1145.*Post*, p. 1278. 1275 Sec. 1118. Notice by chance of name.— By change of name.A change of the partnership name, which plainly indicates the withdrawal of a partner, is sufficient notice of the fact of such withdrawal to all persons to whom it is communicated; but a change in the name, which does not contain such an indication, is not notice of the withdrawal of any partner. liquidationLiquidation. Sec. 1119. Powers of partners after dissolution.— 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 subchapter. Cross Reference Dissolution of partnership, see sections 1113 et seq.*Ante*, p. 1274. Sec. 1120. Who may act in liquidation.— Who may act in liquidation.Any member of a general partnership may act in liquidation of its affairs, except as provided by section 1121. Sec. 1121. Who may not act in liquidation.— Who may not act.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. Sec. 1122. Powers of partners in liquidation.— Powers.A partner authorized to act in liquidation may collect, compromise, or release any debts due to the partnership, pay or compromise any claims against it, and dispose of the partnership property. Sec. 1123. What partner may do in liquidation.— What a partner may do.A partner authorized to act in liquidation may indorse, in the name of the firm, promissory notes or other obligations held by the partnership for the purpose of collecting the same, but he can not create any new obligation in its name or revive a debt against the firm, by an acknowledgment, when an action thereon is barred under the provisions of the Code of Civil Procedure. CHAPTER 55.— SPECIAL PARTNERSHIPSPECIAL PARTNERSHIP. formation Sec. 1124. Formation of special partnership.— Formation.A special partnership may be formed by two or more persons, in the manner and with the effect prescribed in this chapter, for the transaction of any business except banking or insurance by an insurer. Cross Reference No partnership until compliance with law, see section 1129. Sec. 1125. Of what to consist.— Of what to consist.A special partnership may consist of one or more persons called general partners, and one or more persons called special partners. Sec. 1126. Certified statement.— Certified statement.Persons desirous of forming a special partnership must severally sign a certificate, stating: 1. The name under which the partnership is to be conducted; 2. The general nature of the business intended to be transacted; 3. The names of all the partners, and their residences, specifying which are general and which are special partners; 4. The amount of capital which each special partner has contributed to the common stock; 5. The periods at which such partnership will begin and end. 1276 Sec. 1127. Acknowledged and recorded; false statement.— Acknowledging and recording; false statement.*Ante*, p. 1275.Certificates under section 1126 must be acknowledged by all the partners, before the clerk of the district court and filed in his office, and shall be open to public inspection. If any false statement is made in any such certificate, all the persons interested in the partnership are liable, as general partners, for all the engagements thereof. Cross References Liability for false statements, see section 1140.Post, p. 1277. Liability for unintentional acts, see section 1141.Post, p. 1277. Sec. 1128. Affidavit as to sums contributed.— Affidavit as to sums contributed.An affidavit of each of the partners, stating that the sums specified in the certificate of the partnership as having been contributed by each of the special partners, have been 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. Sec. 1129. No partnership until compliance.— No partnership until compliance.*Ante*, p. 1275.No special partnership is formed until the provisions of sections 1124 to 1128 are complied with. Sec. 1130. Renewal of special partnership.— Renewal of.Every renewal or continuance of a special partnership must be certified, filed, and verified in the same manner as upon its original formation. Cross Reference Compare with section 1143.Post, p. 1278. Powers, rights, and duties of partners.powers, rights, and duties of partners. Sec. 1131. Who to do business.— General partners to do business.The general partners only have authority to transact the business of a special partnership. Sec. 1132. Special partners may advise.— Special, may advise.A special partner may at all times investigate the partnership affairs, and advise his partners, or their agents, as to their management. Sec. 1133. May loan money; insolvency.— 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 advances has the same rights as any other creditor; but in case of the insolvency of the partnership, all other claims which he may have against it must be postponed until all other creditors are satisfied. Sec. 1134. General partners may sue and be sued.— 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. Sec. 1135. Withdrawal of capital.— 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. Cross Reference Withdrawal of capital, see section 1137. Sec. 1136. Interest and profits.— Interest and profits.A special partner may receive such lawful interest and such proportion of profits as may be agreed upon, if not paid out of the capital invested in the partnership by him, or by some other special partner, and is not bound to refund the same to meet subsequent losses. Sec. 1137. Result of withdrawing capital.— Result of withdrawing capital.If a special partner withdraws capital from the firm, contrary to the provisions of this subchapter, he thereby becomes a general partner. 1277 Cross Reference Withdrawal of capital, see section 1135.*Ante*, p. 1276. Sec. 1138. Preferential transfer void.— 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 partnership 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. liability of partnersLiability of partners. Sec. 1139. Liability of partners.— General partners.The general partners in a special partnership are liable to the same extent as partners in a general partnership. Cross Reference Liability of general partners, see section 1109.*Ante*, p. 1273. Sec. 1140. Of special partners.— 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 willfully made or permitted a false or materially defective statement in the certificate of the partnership, the affidavit filed therewith, or the published announcement thereof, he is liable, as a general partner, to all creditors of the firm; 2. If he has willfully interfered with the business of the firm, *Ante*, p. 1276.except as permitted in sections 1131 to 1138, he is liable in like manner; or 3. If he has willfully joined in or assented to an act contrary to any of the provisions of said sections 1131 to 1138, he is liable in like manner. Cross Reference False certificate, see sections 1127 and 1129.*Ante*, p. 1276. Sec. 1141. Liability for unintentional act.— Liability for unintentional act.When a special partner has unintentionally done any of the acts mentioned in section 1140, he is liable, as a general partner, to any creditor of the firm who has been actually misled thereby to his prejudice. Cross References False statement in certificate, see sections 1127 and 1140.*Ante*, p. 1276. Liability of general partners, see section 1109.*Ante*, p. 1273. Sec. 1142. Who may question existence of special partnership.— Who may question existence of special partnership.One who, upon making a contract with a partnership, accepts from or gives to it a written memorandum of the contract, stating that the partnership is special, and giving the names of the special partners, can not afterwards charge the persons thus named as general partners upon that contract, by reason of an error or defect in the proceedings for the creation of the special partnership, prior to the acceptance of the memorandum, if an effort has been made by the partners, in good faith, to form a special partnership in the manner required by sections 1124 to 1130.*Ante*, p. 1275. 1278 Alteration and dissolution.alteration and dissolution Sec. 1143. When special partnership becomes general.— When special becomes general.A special partnership becomes general if, within ten days after any partner withdraws from it, or any new partner is received into it, or a change is made in the nature of its business or in its name, a certificate of such fact, duly verified and signed by one or more of the partners, is not filed with the clerk of the district court. Cross Reference Partner withdrawing capital becomes general partner, see section 1137.*Ante*, p. 1276. Sec. 1144. How new special partners may be admitted.— Admission of new partners.New special partners may be admitted into a special partnership upon a certificate, stating the names, residences, and contributions to the common stock of each of such partners, signed by each of them, and by the general partners, verified, acknowledged, and filed with the clerk of the district court. Sec. 1145. Dissolution of special partnership; notice.— Dissolution of special partnership; notice.A special partnership is subject to dissolution in the same manner as a general partnership, except that no dissolution, by the act of the partners, is complete until a notice thereof has been filed and recorded in the office of the clerk of the district court, and published once in each week, for four successive weeks, in a newspaper of general circulation in the Canal Zone. Cross References Dissolution of general partnership, see sections 1114 et seq.*Ante*, p. 1274. Sec. 1146. The name of a special partner not used, unless.— Use of special partner’s name.The name of a special partner must not be used in the firm name of partnership, unless it be accompanied with the word “limited.” CHAPTER 56.— INSURANCE IN GENERALINSURANCE IN GENERAL. Cross Reference Foreign insurance companies, see sections 176 to 181.11 So in original.*Ante*, p. 1147. definition of insurance Sec. 1147. Insurance, what.— “Insurance,” defined.Insurance is a contract whereby one undertakes to indemnify another against loss, damage, or liability, arising from an unknown or contingent event. Cross Reference Reinsurance contract of, see section 1236.*Post*, p. 1288. What may be insured.what may be insured Sec. 1148. What events may be insured against.— What events may be insured against.Any contingent or unknown event, whether past or future, which may damnify a person having an insurable interest, or create a liability against him, may be insured against, subject to the provisions of this chapter. Cross References Insurable interest. see sections 1157 et seq.*Post*, p. 1279. Insurable interest in expectancy or inchoate interest, see sections 1158 and 1160.*Post*, p. 1280. 1279 Sec. 1149. Insurance of lottery or lottery prize unauthorized.— Insurance of lottery, etc., unauthorized.Section 1148 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. Cross References Fire Insurance, see sections 1240 et seq.*Post*, p. 1288. Life and health Insurance, see sections 1245 et seq.*Post*, p. 1289. Sec. 1151. All subject to this chapter.— All kinds subject to this chapter.All kinds of insurance, other than marine insurance, are subject to the provisions of this chapter. parties to contractParties to contract. Sec. 1152. Designation of parties.— Designation of.The person who undertakes to indemnify another by a contract of insurance is called the insurer, and the person indemnified is called the insured. Sec. 1153. Who may insure.— Who may insure.Anyone capable of making a contract may be an insurer, subject to the restrictions imposed by special statutes upon foreign corporations, nonresidents, and others. Cross Reference Regulation of foreign insurance companies, see sections 176 to 181.11 So in original.*Ante*, p. 1147. Sec. 1154. Who may be insured.— Who may be insured.Anyone except a public enemy may be insured. Sec. 1155. Assignment to mortgagee of policy on thing insured.— Assignment to mortgagee 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 contract, 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 mortgagee, 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. Sec. 1156. New contract between insurer and assignee.— New contract between insurer and assignee.If an insurer and assents to the transfer of an insurance from a mortgagor 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 can not affect his rights. insurable interestInsurable interest. Sec. 1157. Insurable interest, what.— Definition.Every interest in property, 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. Cross References Assignment to one without insurable interest, see section 1247.*Post*, p. 1289. Bailees or carriers, see section 1159.*Post*, p. 1280. Effect of transfer of interest, see section 1164.*Post*, p. 1280. Extent of insurable interest, see section 1161.*Post*, p. 1280. Future products insurable, see section 1160.*Post*, p. 1280. Insurable interest in expectancy or inchoate interest, see section 1148, 1158, and 1160.*Ante*, p. 1278; *post*, p. 1280. 1280 Insurable interest in lite or health, see section 1246.*Post*, p. 1289. Insurance without insurable interest is void, see section 1162. Life insurance, see section 1246.*Post*, p. 1289. Partner, see section 1197.*Post*, p. 1284. Stating insurer’s interests in policy, see sections 1177 and 1194.*Post*, pp. 1282, 1283. Stipulation for payment irrespective of insurable interest is void, see section 1169.*Post*, p. 1281. When insurable interest must exist, see section 1163. Sec. 1158. In what may consist.— In what may consist.An insurable interest in property may consist in: 1. An existing interest; 2. An inchoate interest founded on an existing interest; or 3. An expectancy, coupled with an existing interest in that out of which the expectancy arises. Cross References Insurable interest in expectancy or inchoate interest, see sections 1148 and 1160.*Ante*, p. 1278. What events may be insured against, see section 1148.*Ante*, p. 1278. Sec. 1159. Interest of carrier or depositary.— Interest of carrier or depositary.A carrier or depositary of any kind has an insurable interest in a thing held by him as such, to the extent of its value. Sec. 1160. Mere expectancies.— Mere expectancies.A mere contingent or expectant interest in anything, not founded on an actual right to the thing, nor upon any valid contract for it, is not insurable. Cross References Insurable interest in expectancy or inchoate interest, see section 1158. Unknown or contingent event, insurance against, see section 1148.*Ante*, p. 1278. Sec. 1161. Measure of interest in property.— Measure of interest.The measure of an insurable interest in property is the extent to which the insured might be damnified by loss or injury thereof. Cross Reference Insurance without interest, see section 1162. Sec. 1162. Insurance without interest, illegal.— 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. Cross Reference Stipulation for payment irrespective of interest is void, see section 1169.*Post*, p. 1281. Sec. 1163. When interest must exist.— 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 meantime. Sec. 1164. Effect of transfer.— Effect of transfer.Except in the cases specified in sections 1165 to 1168, and in the cases of life, accident, and health insurance, a change of interest in any part of a thing insured, unaccompanied by a corresponding change of interest in the insurance, suspends the insurance to an equivalent extent, until the interest in the thing and the interest in the insurance are vested in the same person. 1281 Cross References Transfer by coowner or partner, see section 1168. Transfer by operation of law, see section 1167.11 So in original. Transfer of life-insurance policy, see section 1247.*Post*, p. 1289. Transfer of thing insured does not transfer policy, see section 1200.*Post*, p. 1284. Sec. 1165. Transfer after loss.— Transfer after loss.A change of interest in a thing Transfer after loss. 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. Sec. 1166. Exception in the case of several subjects in one policy.— Exception where several subjects in one policy.A change of interest in one or more of several distinct policy. things, separately insured by one policy, does not avoid the insurance as to the others. Sec. 1168. In the case of transfer between cotenants.— Transfer between cotenants.A transfer 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 insured. Cross Reference Insurance by partner or cotenant, see section 1197.*Post*, p. 1284. Sec. 1169. Policy, when void.— Policy, when void.Every stipulation in a policy of insurance for the payment of loss whether the person insured has or has not any interest in the property insured, or that the policy shall be received as proof of such interest and every policy executed by way of gaming or wagering, is void. Cross Reference Insurance without interest is illegal, see section 1162.*Ante*, p. 1280. concealment and representationsConcealment and representations. Sec. 1170. Concealment, what.— Concealment, defined.A neglect to communicate that which a party knows, and ought to communicate, is called a concealment. concealment and representations. Cross Reference “Party” refers to either party to the contract, see section 1172. Sec. 1171. Effect of concealment.— Effect of.A concealment, whether intentional or unintentional, entitles the injured party to rescind a contract of insurance. Sec. 1172. What must be disclosed.— What must be disclosed.Each party to a contract of insurance must communicate to the other, in good faith, all facts within his knowledge which are or which he believes to be material to the contract, and which the other has not the means of ascertaining. and as to which he makes no warranty. Sec. 1173. Matters which need not be communicated without inquiry.— Matters which need not be communicated.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 w7hich the former has no reason to suppose him ignorant; 3. Those of which the other waives communication; 4. Those which prove or tend to prove the existence of a risk excluded by a warranty, and which are not otherwise material; and 1282 5. Those which relate to a risk excepted from the policy, and which are not otherwise material. Cross References Facts covered by warranty, see section 1178. Information as to nature of amount of interest, see section 1177. Matters of opinion, see section 1179. Waiver of communication, see section 1176. Sec. 1174. Test of materiality.— Test of materiality.Materiality is to be determined not by the event, but solely by the probable and reasonable influence of the facts upon the party to whom the communication is due, in forming his estimate of the disadvantages of the proposed contract or in making his inquiries. Cross Reference Materiality of representation, see section 1190.*Post*, p. 1283. Sec. 1175. Matters which each is bound to know.— 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. Sec. 1176. Waiver of communication.— Waiver of communication.The right to information of material facts may be waived, either by the terms of insurance or by neglect to make inquiries as to such facts, where they are distinctly implied in other facts of which information is communicated. Sec. 1177. Interest of insured.— Interest of insured.Information of the nature or amount of the interest of one insured need not be communicated unless in answer to an inquiry, except as prescribed by section 1194. Sec. 1178. Fraudulent warranty.— *Post*, p. 1283.Fraudulent warranty.An intentional and fraudulent omission, on the part of one insured, to communicate information of matters proving or tending to prove the falsity of a warranty, entitles the insurer to rescind. Cross References Effect of concealment, see section 1171.*Ante*, p. 1281. Warranties, see section 1207 et seq.*Post*, p. 1284. Sec. 1179. Matters of opinion.— Matters of opinion.Neither party to a contract of insurance is bound to communicate, even upon inquiry, information of his own judgment upon the matters in question. Sec. 1180. Representation, how made.— How representation made.A representation may be oral or written. Sec. 1181. When made.— When made.A representation may be made at the same time with issuing the policy, or before it. Cross Reference Warranties, see sections 1207 and 1208.*Post*, p. 1284. Sec. 1182. How interpreted.— How interpreted.The language of a representation is to be interpreted by the same rules as the language of contracts in general. Cross Reference Interpretation of contracts, see sections 546 et seq.*Ante*, p. 1197. Sec. 1183. Representation as to future.— Representation as to future.A representation as to the future is to be deemed a promise, unless it appears that it was merely a statement of belief or expectation. 1283 Sec. 1184. How may affect policy.— How affect policy.A representation can not be allowed to qualify an express provision in a contract of insurance, but it may qualify an implied warranty. Sec. 1185. When may be withdrawn.— When may be withdrawn.A representation may be altered or withdrawn before the insurance is effected, but not afterwards. Sec. 1186. Time intended by representation.— Time intended by representation.The completion of the contract of insurance is the time to which a representation must be presumed to refer. Sec. 1187. Representing information.— Representing information.When a person insured has no personal knowledge of a fact, he may nevertheless repeat 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. Sec. 1188. Falsity.— Falsity.A representation is to be deemed false when the facts fail to correspond with its assertions or stipulations. Sec. 1189. Effect of falsity.— Effect of.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. Sec. 1190. Materiality.— Materiality.The materiality of a representation is determined by the same rule as the materiality of a concealment. Cross References Materiality of representation, how determined, see section 1174.*Ante*, p. 1282. Violation of material warranty, see section 1214.*Post*, p. 1285. Sec. 1191. Application of provisions of this subchapter.— Application of this subchapter.The provisions of this subchapter apply as well to a modification of a contract of insurance as to its original formation. Sec. 1192. Right to rescind.— Right to rescind.Whenever a right to rescind a contract of insurance is given to the insurer by any provision of this chapter, such right may be exercised at any time previous to the commencement of an action on the contract. the policyThe policy. Sec. 1193. Policy, what.— Definition.The written instrument, in which a contract of insurance is set forth, is called a policy of insurance. Sec. 1194. What must be specified in a policy.— What must specify.A policy of insurance must specify: 1. The parties between whom the contract is made; 2. The rate of premium; 3. The property or life 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. Sec. 1195. Whose interest is covered.— Whose interest covered.When the name of the person intended to be insured is specified in a policy, it can be applied only to his own proper interest. Cross References Insurable interest, generally, see section 1157.*Ante*, p. 1279. Stating interest of insured, see section 1177.*Ante*, p. 1282. 1284 Sec. 1196. Insurance by agent or trustee.— 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. Sec. 1197. Insurance by part owner.— By part owner.To render an insurance, effected by one partner or part owner, applicable to the interest of his copartners, or of other part owners, it is necessary that the terms of the policy should be such as are applicable to the joint or common interest. Cross Reference Transfer by coowner, see section 1168.*Ante*, p. 1281. Sec. 1198. General terms.— General terms.When the description of the insured in a policy is so general that it may comprehend any person or any class of persons, lie only can claim the benefit of the policy who can show that it was intended to include him. Sec. 1199. Successive owners.— Successive owners.A policy may be so framed that it will inure to the benefit of whomsoever, during the continuance of the risk, may become the owner of the interest insured. Sec. 1200. Transfer of the thing insured.— Transfer of 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. Cross Reference Transfer of interest, see sections 1164 et seq.*Ante*, p. 1281. Sec. 1201. Open and valued policies.— Open and valued policies.A policy is either open or valued. Sec. 1202. Open policy, what.— Open policy.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. Sec. 1203. Valued policy, what.— Valued policy.A valued policy is one which expresses on its face an agreement that the thing insured shall be valued at a specified sum. Sec. 1204. Running policy, what.— Running policy.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 statements or indorsements. Sec. 1205. Effect of receipt.— 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. Cross Reference Premiums, in general, see sections 1217 et seq.*Post*, p. 1285. Sec. 1206. Agreement not to transfer.— 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. warrantiesWarranties. Sec. 1207. Warranty, Express or implied.— Express or implied.A warranty is either express or implied. Cross References Express warranties to be in policy, see section 1209.*Post*, p. 1285. 1285 Sec. 1208. Form.— Form.No particular form of words is necessary to create a warranty. Sec. 1209. Express warranties to be in policy.— 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. Cross Reference Representations, see sections 1180 et seq.*Ante*, p. 1282. Sec. 1210. Past, present, and future warranties.— Time.A warranty may relate to the past, the present, the future, or to any or all of these. Sec. 1211. Express warranty, what constitutes.— What constitutes express warranty.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. Sec. 1212. Warranty as to the future.— Warranty as to 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. Sec. 1213. Performance excused.— Performance excused.When before the time arrives for the performance of a warranty relating to the future, a loss insured against happens, or performance becomes unlawful at the place of the contract, or impossible, the omission to fulfill the warranty does not avoid the policy. Cross Reference Rescinding contract of insurance, see section 1192.*Ante*, p. 1a283. Sec. 1214. What acts avoid the policy.— What acts avoid policy.The violation of a material warranty, or other material provision of a policy, on the part of either party thereto, entitles the other to rescind. Cross Reference Test of the materiality of a representation, see section 1190.*Ante*, p. 1283. Sec. 1215. Policy may provide for avoidance.— 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. Sec. 1216. Breach without fraud.— 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. Cross Reference Breach of warranty without fraud, return of premium, see section 1220.*Post*, p. 1286. premiumPremium. Sec. 1217. When premium is earned11 So in original.. When earned. Cross Reference Receipt in policy, how far conclusive of payment, see section 1205.*Ante*, p. 1284. Sec. 1218. Return of premium.— Return of premium.A person insured is entitled to a return of premium, as follows: Where the insurance is made for a definite period of time, and the insured surrenders his policy, to such proportion of the premium above the customary short rate premium as corresponds with the 1286unexpired time, after deducting from the whole premium any claim for loss or damage under the policy which has previously accrued. Cross Reference Return for fraud, see section 1220. Sec. 1219. When not allowed.— 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. Sec. 1220. Return for fraud.— Return for fraud.A person insured is entitled to a return of the premium when the contract is voidable, on account of the fraud or misrepresentation of the insurer, or on account of facts, of the existence of which the insured was ignorant without his fault; or when, by any default of the insured other than actual fraud, the insurer never incurred any liability under the policy. Cross Reference return of premium, see section 1218.*Ante*, p. 1285. Sec. 1221. Overinsurance by several insurers.— Overinsurance by several insurers.In case of an overinsurance by several insurers, the insured is entitled to a ratable return for 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. Cross Reference Double insurance, defined, see section 1234.*Post*, p. 1287. Sec. 1222. Contribution.— Contribution.When an overinsurance is affected by simultaneous policies, the insurers contribute to the premium to be returned in proportion to the amount insured by their respective policies. Cross Reference Post, p. 1287. Contribution in cases of double insurance, see section 1235.*Post*, p. 1287. Sec. 1223. Proportionate contribution.— Proportionate contribution.When an overinsurance is effected by successive policies, those only contribute to a return of the premium who are exonerated by prior insurance from the liability assumed by them, and in proportion as the sum for which the premium was paid exceeds the amount for which, on account of prior insurance, they could be made liable. lossLoss. Sec. 1224. Perils, remote and proximate.— 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. Cross Reference Negligence of insured, see section 1227.*Post*, p. 1287. Sec. 1225. Loss incurred in rescue from peril.— Loss incurred in rescue.An insurer is liable where the thing insured is rescued from a peril insured against, that would otherwise have caused a loss, if in the course of such rescue the thing is exposed to a peril not insured against, which permanently deprives the insured of its possession, in whole or in part; or where a loss is caused by efforts to rescue the thing insured from a peril insured against. 1287 Sec. 1226. Excepted perils.— Excepted perils.Where a peril is specially excepted in a contract of insurance, a loss, which would not have occurred but for such peril, is thereby excepted, although the immediate cause of the loss was a peril which was not excepted. Sec. 1227. Negligence and fraud.— 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. notice of loss Sec. 1228. Notice of loss.— Notice of loss.In case of loss upon an insurance against tire, 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. Sec. 1229. Time for giving notice of accidents, etc.— Time for giving notice.No conditions, stipulations, or agreements contained in any application for insurance in any casualty or accident 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 injury, 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; and notice deposited in the mails properly addressed within the time stated is sufficient, though it does not reach the insurer within that time. Sec. 1230. Preliminary proofs.— 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. Sec. 1231. Waiver of defects in notice, etc.— Waiver of defects in notice, etc.All defects in a notice of loss, or in preliminary proof thereof, which the insured might remedy, and which the insurer omits to specify to him, without unnecessary delay, as grounds of objection, are waived. Sec. 1232. Waiver of delay.— 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. Sec. 1233. Certificate, when dispensed with.— When certificate dispensed with.If a policy requires, by way of preliminary proof of loss, the certificate or testimony of a person other than the insured, it is sufficient for the insured to use reasonable diligence to procure it, and in case of the refusal of such person to give it, then to furnish reasonable evidence to the insurer that such refusal was not induced by any just grounds of disbelief in the facts necessary to be certified. double insurance Sec. 1234. Double insurance.— Double insurance.A double insurance exists where the same person is insured by several insurers separately in respect to the same subject and interest. Sec. 1235. Contribution in case of double insurance.— Contribution in case of.In case of double fire insurance, each insurer must contribute ratably toward the loss, without regard to the dates of the several policies. Cross Reference Return of premium by successive insurers, see sections 1221 and 1223.*Ante*, p. 1286. 1288 reinsurance Sec. 1236. Reinsurance, what.— Reinsurance.Definition.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. Sec. 1237. Disclosures required.— Disclosures required.Where an insurer obtains reinsurance, he must communicate all the representations of the original insured, and also all the knowledge and information he possesses, whether previously or subsequently acquired, which are material to the risk. Sec. 1238. Reinsurance presumed to be against liability.— Reinsurance presumed to be against liability.A reinsurance is presumed to be a contract of indemnity against liability and not merely against damage. Sec. 1239. Original insured has no interest.— Original insured has no interest.The original insured has no interest in a contract of reinsurance. CHAPTER 57.— FIRE INSURANCEFIRE INSURANCE. Cross References Chapter 56 of this code is also applicable to fire insurance, see section 1151.*Ante*, p. 1279. Foreign insurance companies, see sections 176 to 181.11 So in original.*Ante*, p. 1147. Sec. 1240. Alteration increasing risk.— Alteration increasing risk.An alteration in the use or condition of a. thing insured from that to which it is limited by the policy, made without the consent of the insurer, by means within the control of the insured, and increasing the risk, entitles an insurer to rescind a contract of fire insurance. Sec. 1241. Alteration not increasing risk.— 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. Sec. 1242. Acts of insured.— Acts of insured.A contract of fire insurance is not affected by any act of the insured subsequent to the execution of the policy, which does not violate its provisions, even though it increases the risk and is the cause of a loss. Sec. 1243. Measure of indemnity.— 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 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. Sec. 1244. Value of interest in policy of insurance; how may be fixed; total or partial loss.— Value of interest in policy; how fixed; total or partial loss.Whenever 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 be thereupon fixed by the parties. The cost of such examination shall be paid for by the insured. A clause shall be inserted in such policy stating substantially that the value of the insured’s interest in such building or structure has been thus fixed. In the absence of any change increasing the risk without 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 two or more policies covering the insured’s interest therein, each policy shall contribute 1289pro 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 section 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. CHAPTER 58.— LIFE AND HEALTH INSURANCELIFE AND HEALTH INSURANCE. Cross References Chapter 56 of this code is also applicable to life insurance, see section 1151.*Ante*, p. 1279. Foreign insurance companies, see sections 176 to 181.11 So in original.*Ante*, p. 1148. Sec. 1245. Insurance upon life, when payable.— When insurance upon life 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. Sec. 1246. Insurable interest.— Insurable interest.Every person has an insurable interest in the life and health— 1. Of himself; 2. Of any person on whom he depends wholly or in 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. Cross Reference Insurable interest, generally, see sections 1157 et seq.*Ante*, p. 1279. Sec. 1247. Assignee, etc., of life policy need have no interest.— 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 whatever the insured might have recovered. Cross Reference Compare section 1164.*Ante*, p. 1280. Sec. 1248. Notice of transfer.— Notice of transfer.Notice to an insurer of a transfer or bequest thereof is not necessary to preserve the validity of a policy of insurance upon life or health, unless thereby expressly required. Sec. 1249. Measure of indemnity.— Measure of indemnity.Unless the interest of a person insured is susceptible of exact pecuniary measurement, the measure of indemnity under a policy of insurance upon life or health is the sum fixed in the policy. Sec. 1250. Disposition by beneficiary of interest in installment.— Disposition by beneficiary of interest in installment.The beneficiary under a policy of life insurance, providing for the payment of the proceeds thereof in periodical installments, may be restrained from disposing of or encumbering his interest 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. Sec. 1251. Payment of proceeds of policy.— Payment of proceeds.The proceeds of every policy of insurance due on the death of insured shall by the insurer be paid either to the beneficiary designated therein, or, if no beneficiary is designated therein, to the estate of insured; or, if the policy has been assigned, to the assignee thereof; and such payment shall satisfy all obligations of the insurer with respect to said policy. 1290 CHAPTER 59.— INDEMNITYINDEMNITY. Sec. 1251–a. Indemnity, what.— Definition.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. Cross References Guaranty, see sections 1261 et seq.*Post*, p. 1291. Suretyship, see sections 1285 et seq.*Post*, p. 1294. Sec. 1252. Indemnity for a future wrongful act void.— Indemnity for future wrongful act void.An agreement to indemnify a person against an act thereafter to be done, is void, if the act be known by such person at the time of doing it to be unlawful. Sec. 1253. Indemnity for a past wrongful act valid.— For past wrongful act valid.An agreement to indemnify a person against an act already done, is valid, even though the act was known to be wrongful, unless it was a felony. Sec. 1254. Indemnity extends to acts of agents.— Indemnity extends to agents.An agreement to indemnify against the acts of a certain person, applies not only to his acts and their consequences, but also to those of his agents. Sec. 1255. Indemnity to several.— Indemnity to several.An agreement to indemnify several persons applies to each, unless a contrary intention appears. Sec. 1256. Person indemnifying liable jointly or severally with person indemnified.— Person indemnifying, liable jointly or severally.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. Sec. 1257. Rules for interpreting agreement of indemnity.— Rules for interpreting agreement.In the interpretation of a contract of indemnity the following rules are to be applied, unless a contrary intention appears: 1. Upon an indemnity against liability, expressly, or in other equivalent terms, the person indemnified is entitled to recover upon becoming liable. 2. Upon an indemnity against claims, or demands, or damages, or costs, expressly, or in other equivalent terms, the person indemnified is not entitled to recover without payment thereof. 3. An indemnity against claims, or demands, or liability, expressly, or in other equivalent terms, embraces the costs of defense against such claims, demands, or liability incurred in good faith and in the exercise of a reasonable discretion. 4. The person indemnifying is bound, on request of the person indemnified, to defend actions or proceedings brought against the latter in respect to the matters embraced by the indemnity, but the person indemnified has the right to engage in the conduct of such defenses, if he chooses to do so. 5. If, after request, the person indemnifying neglects to defend the person indemnified, a recovery against the latter suffered by him in good faith is conclusive in his favor against the former. 6. If the person 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 indemnified 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. 1291 Sec. 1258. Reimbursement of person indemnifying other.— Reimbursement of person indemnifying, other.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. Sec. 1259. Bail, what.— Bail, defined.Upon those contracts of indemnity which are taken in legal proceedings as security for the performance of an obligation imposed or declared by the tribunals, and known as undertakings or recognizances, the sureties are called bail. Sec. 1260. How regulated.— How regulated.The obligations of bail are governed by the law specially applicable thereto. CHAPTER 60.— GUARANTY IN GENERALGUARANTY IN GENERAL. definition of guaranty Sec. 1261. Guarante, what.— Definition.A guaranty is a promise to answer for the debt, default, or miscarriage of another person. Cross References Indemnity, see sections 1251–a et seq.*Ante*, p. 1290. Suretyship, see sections 1285 et seq.*Post*, p. 1294. creation of guarantyCreation of. Sec. 1262. Knowledge of principal not necessary.— Knowledge of principal not necessary.A person may become guarantor even without the knowledge or consent of the principal. Sec. 1263. Necessity of a consideration.— Necessity of 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 distinct from that of the original obligation. Sec. 1264. Guaranty to be in writing, etc.— Guaranty to be in writing, etc.Except as prescribed by section 1265, a guaranty must be in writing, and signed by the guarantor; but the writing need not express a consideration. Cross Reference Guaranty, to be written, see section 541 (2).*Ante*, p. 1197. Sec. 1265. Engagement to answer for obligation of another, when deemed original.— Engagement to answer for obligation of another, when deemed original.A promise to answer for the obligation of another, in any of the following cases, is deemed an original obligation of the promisor, and need not be in writing: 1. Where the promise is made by one who has received property of another upon an undertaking to apply it pursuant to such promise, or by one who has received a discharge from an obligation in whole or in part in consideration of such promise. 2. Where the creditor parts with value, or enters into an obligation, in consideration of the obligation in respect to which the promise is made, in terms or under circumstances such as to render the party making the promise the principal debtor, and the person in whose behalf it is made, his surety. 3. Where the promise, being for an antecedent obligation of another, is made upon the consideration that the party receiving 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 execution on a judgment obtained upon 1292the 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 merchandise and 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 with such transfer enters into a promise respecting such instrument. Cross Reference Guaranty, necessity of writing, see section 541.*Ante*, p. 1197. Sec. 1266. Acceptance of guaranty.— Acceptance of guaranty.A mere offer to guarantee is not binding until notice of its acceptance is communicated by the guarantee to the guarantor; but an absolute guaranty is binding upon the guarantor without notice of acceptance. Cross Reference Absolute guaranty, see section 1271.Interpretation of. interpretation of guaranty Sec. 1267. Guaranty of incomplete contract.— Guaranty of incomplete contract.In a guaranty of a contract, the terms of which are not then settled, it is implied that its terms shall be such as will not expose the guarantor to greater risks than he would incur under those terms which are most common in similar contracts at the place where the principal contract is to be performed. Sec. 1268. Guaranty that an obligation is good or collectible.— That an obligation is good or collectible.A guaranty to the effect that an obligation is good, or is collectible, imports that the debtor is solvent and that the demand is collectible by the usual legal proceedings, if taken with reasonable diligence. Sec. 1269. Recovery upon such guaranty.— Recovery upon.A guaranty, such as is mentioned in section 1268, 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. Sec. 1270. Guarantor’s liability upon such guaranty.— Guarantor’s liability.In the cases mentioned in section 1268, the removal of the principal from the Canal Zone, leaving no property therein from which the obligation might be satisfied, is equivalent to the insolvency of the principal in its effect upon the rights and obligations of the guarantor. Liability of guarantors.liability of guarantors Sec. 1271. Guaranty, how construed.— Guaranty construed.A guaranty is to be deemed unconditional unless its terms import some condition precedent to the liability of the guarantor. Sec. 1272. Liability upon guaranty of payment or performance.— Liability upon guaranty of payment or performance.A guarantor of payment or performance is liable to the guarantee immediately upon the default of the principal, and without demand or notice. Sec. 1273. Liability upon guaranty of conditional obligation.— Of conditional obligationWhere 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 reasonable diligence, to acquire information of such default, and the creditor has actual notice thereof. 1293 Sec. 1274. Obligation of guarantor can not exceed that of the principal.— Obligation not to exceed that of 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. Sec. 1275. Guarantor not liable on illegal contract.— Illegal contracts.A guarantor is not liable if the contract of the principal is unlawful; but he is liable notwithstanding any mere personal disability of the principal, though the disability be such as to make the contract void against the principal. continuing guarantyContinuing guaranty. Sec. 1276. Continuing guaranty, what.— Definition.A guaranty relating to a future liability of the principal, under successive transactions, which either continue his liability or from time to time renew it after it has been satisfied, is called a continuing guaranty. Sec. 1277. Revocation.— Revocation.A continuing guaranty may be revoked at any time by the guarantor, in respect to future transactions, unless there is a continuing consideration as to such transactions which he does not renounce. exoneration of guarantorsExoneration of guarantors. Sec. 1278. What dealings with debtor exonerate guarantor.— What dealings with debtor exonerate.A guarantor is exonerated, except so far as he may be indemnified by the principal, if by any act of the creditor, without the consent of the guarantor, the original obligation of the principal is altered in any respect, or the remedies or rights of the creditor against the principal, in respect thereto, in any way impaired or suspended. Cross References Exoneration of surety, see sections 1290 and 1291.*Post*, p. 1294. Forbearance will not discharge, see section 1282.*Ante*, p. 1292. Liability of guarantor, see sections 1271 et seq.*Post*, p. 1295. Neglect or refusal to sue after request will discharge, see section 1293.*Post*, p. 1296. Rights of creditor where security given, see section 1299. Sec. 1279. Void promises.— Void promises.A promise by a creditor, which for any cause is void, or voidable by him at his option, does not alter the obligation or suspend or impair the remedy, within the meaning of section 1278. Sec. 1280. Rescission of alteration.— Rescission of alteration.The rescission of an agreement altering the original obligation 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 Sec. 1281. Part performance.— Part performance.The acceptance, by a creditor, anything in partial satisfaction of an obligation, reduces the obligation of a guarantor thereof, in the same measure as that of the principal, but does not otherwise affect it. Cross References Acceptance of consideration of accord, see section 480.*Ante*, p. 1189. Acceptance of part performance in satisfaction of obligation, see section 481.*Ante*, p. 1189. Effect of part performance, see sections 450, 454, and 481.*Ante*, pp. 1185, 1186, 1189. Sec. 1282. Delay of creditor does not discharge guarantor.— Delay 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 guarantor. Cross Reference Notice to creditor to sue, see section 1293.*Post*, p. 1295. 1294 Sec. 1283. Guarantor indemnified by the debtor, not exonerated.— Indemnified guarantors.A guarantor who has been indemnified by the principal is liable to the creditor to the extent of the indemnity, notwithstanding that the creditor, without the assent of the guarantor, may have modified the contract or released the principal. Cross Reference See sections 1278 and 1205 (1).*Ante*, pp. 1291, 1293. Sec. 1284. Discharge of principal by act of law does not discharge guarantor.— Discharge of principal by act of law.A guarantor is not exonerated by the discharge of his principal by operation of law, without the intervention or omission of the creditor. CHAPTER 61.— SURETYSHIPSURETYSHIP. who are sureties Sec. 1285. Surety, what.— Definition.A surety is one who at the request of another, and for the purpose of securing to him a benefit, becomes responsible for the performance by the latter of some act in favor of a third person, or hypothecates property as security therefor. Cross References Guaranty, see sections 1261 et seq.*Ante*, p. 1291. Indemnity, see sections 1251–a et seq.*Ante*, p. 1290. Sec. 1286. Apparent principal may show that he is surety.— Apparent principal may show suretyship.One who appears to be a principal, whether by the terms of a written instrument or otherwise, may show that he is in fact a surety, except as against persons who have acted on the faith of his apparent character of principal. Liability of sureties.liability of sureties Sec. 1287. Limit of surety’s obligation.— Limit of.A surety can not be held beyond the express terms of his contract, and if such contract prescribes a penalty for its breach, he can not in any case be liable for more than the penalty. Cross Reference Liability of guarantors, see sections 1272 and 1273.*Ante*, p. 1292. Sec. 1288. Rules of interpretation.— 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. Sec. 1289. Judgment against surety does not alter the relation.— 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. Sec. 1290. Surety exonerated by performance or offer of performance.— Exoneration by performance or offer of.Performance of the principal obligation, or an offer of such performance, duly made as provided in this code, exonerates a surety. Cross Reference Offer of performance, see sections 453 to 473.*Ante*, p. 1186. Sec. 1291. Surety discharged by certain acts of the creditor.— Sureties discharged by acts of 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 1295the surety or inconsistent with his rights, or which lessens iris 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. Cross References Exoneration of guarantor, see sections 1278 et seq.*Ante*, p. 1293. Omission of creditor to proceed against principal, see section 1293. rights of suretiesRights of sureties. Sec. 1292. Surety has rights of guarantor.— Has rights of guarantor.A surety has all the rights of a guarantor, whether he become personally responsible or not. Sec. 1293. Surety may require the creditor to proceed against the principal.— May require creditor to proceed against principal.A surety may require his creditor to proceed against the principal, or to pursue any other remedy in his power which the surety can not himself pursue, and which would lighten his burden; and if in such case the creditor neglects to do so, the surety is exonerated to the extent to which he is thereby prejudiced. Cross Reference Mere delay by creditor to pursue principal does not discharge surety, see Ante, pp. 1293.1294. sections 1282 and 1291 (1).*Ante*, pp. 1293, 1294. Sec. 1294. Surety may compel principal to perform obligations when due.— May compel principal to perform obligations.A surety may compel his principal to perform the obligation when due. Cross Reference Substitute for equitable action, see section 1293. Sec. 1295. A principal bound to reimburse his surety.— Exoneration.If a surety satisfies the principal obligation, or any part thereof, whether with 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 reimbursement against other persons, though they may have been benefited by his act, except as prescribed by section 1296. Sec. 1296. The surety acquires the right of the creditor.— Subrogation.A surety, upon satisfying the obligation of the principal, is entitled 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 cosureties to contribute thereto, without regard to the order of time in which they became such. Sec. 1297. Surety entitled to benefit of securities held by creditor.11 So in original.— Surety entitled to 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 cosurety at the time of entering into the contract of suretyship, or acquired by him afterwards, whether the surety was aware of the security or not. Sec. 1298. The property of principal to be taken first.— Property of principal to be taken first.Whenever 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. 1296 rights of creditors. Sec. 1299. Creditor entitled to benefit of securities held by surety.— Creditor entitled to benefit of securities held by surety.A creditor is entitled to the benefit of everything which a surety has received from the debtor by way of security for the performance of the obligation, and may, upon maturity of the obligation, compel the application of such security to its satisfaction. Letter of credit.letter of credit Sec. 1300. Letter of credit, what.— Definition.A letter of credit is a written instrument, addressed by one person to another, requesting the latter to give credit to the person in whose favor it is drawn. Sec. 1301. How addressed.— How addressed.A letter of credit may be addressed to several persons in succession. Sec. 1302. Liability of the writer.— Liability of 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. Cross Reference When notice to the writer necessary, see section 1307. Sec. 1303. Letters of credit either general or special.— Letters of credit, 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. Cross Reference Credit to correspond with terms of letter, see section 1308. Sec. 1304. Nature of general letter of credit.— Nature of general letter.A general letter of credit gives any person to whom it may be shown authority to comply with its request, and by his so doing it becomes, as to him, of the same effect as if addressed to him by name. Sec. 1305. Extent of general letter of credit.— Extent of.Several persons may successively give credit upon a general letter. Sec. 1306. A letter of credit may be a continuing guaranty.— Letter of credit as continuing guaranty.If the parties to a letter of credit appear, by its terms, to contemplate a course of future dealing between the parties, it is not exhausted by giving a credit, even to the amount limited by the letter, which is subsequently reduced or satisfied by payments made by the debtor, but is to be deemed a continuing guaranty. Sec. 1307. When notice to the writer necessary.— Notice to writer.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. Sec. 1308. The credit given must agree with the terms of the letter.— Credit given must agree with terms of 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. CHAPTER 62.— LIENS IN GENERALLIENS IN GENERAL. definition of liens Sec. 1309. Lien, what.— Definition.A lien is a charge imposed in some mode other than by a transfer in trust upon specific property by which it is made security for the performance of an act. Sec. 1310. Liens, general or special.— General or special.Liens are either general or special. 1297 Sec. 1311. General lien, what.— General lien.A general lien is one which the holder thereof is entitled to enforce as a security for the performance of all the obligations, or all of a particular class of obligations, which exist in his favor against the owner of the property. Cross References Banker, see section 1397.*Post*, p. 1307. Factors, lien, see section 1396.*Post*, p. 1307. Lien for services, see section 1393.*Post*, p. 1306. Sec. 1312. Special lien, what.— Special lien.A special lien is one which the holder thereof can enforce only as security for the performance of a particular act or obligation, and of such obligations as may be incidental thereto. Cross References Mortgage is a special lien unless otherwise agreed, see section 1336.*Post*, p. 1300. Rights where prior lien discharged, see section 1313. Special lien of officer levying attachment on execution, see section 1398.*Post*, p. 1307. Special lien on personalty for services, see section 1393.*Post*, p. 1306. Special lien of seller of personalty, see sections 649 et seq.*Ante*, p. 1215. Sec. 1313. Prior liens.— 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. Sec. 1314. Contracts subject to provisions of this chapter.— Mortgages and pledges subject to provisions herein.Contracts of mortgage and pledge are subject to all the provisions of this chapter. creation of liensCreation of liens. Sec. 1315. Lien, how created.— How created.A lien is created: 1. By contract of the parties; or 2. By operation of law. Sec. 1316. No lien for claim not due.— 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. Sec. 1317. Lien on future interest.— 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 when the party agreeing to give it acquires an interest in the thing, to the extent of such interest. Sec. 1318. Lien may be created by contract.— Creation by contract.A lien may be created by contract, to take immediate effect, as security for the performance of obligations not then in existence. effect of liensEffect of. Sec. 1319. Lien, or contract for lien, transfers no title.— No title transferred.Notwithstanding an agreement to the contrary, a lien, or a contract for a lien, transfers no title to the property subject to the lien. Cross Reference Mortgage gives no right to possession. see section 1340.*Post*, p. 1300. Sec. 1320. Certain contracts void.— Certain contracts void.All contracts for the forfeiture 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. 1298 Sec. 1321. Creation of lien does not imply personal obligation.— Creation 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. Cross Reference See, also, sections 1329, 1341, and 1381.*Post*, pp. 1299, 1300, 1305. Sec. 1322. Extent of lien.— Extent of.The existence of a lien upon property does not of itself entitle the person in whose favor it exists to a lien upon the same property for the performance of any other obligation than that which the lien originally secured. Sec. 1323. Holder of lien not entitled to compensation.— Holder not entitled to compensation.One who holds property by virtue of a lien thereon is not entitled to compensation from the owner thereof for any trouble or expense which he incurs respecting it, except to the same extent as a borrower, *Ante*, p. 1242.under sections 805 and 806. priority of liens Sec. 1324. Priority of liens.— Priority of liens.Other things being equal, different liens upon the same property have priority according to the time of their creation, except in cases of bottomry and respondentia. Sec. 1325. Order of resort to different funds.— 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 upon which he has an exclusive lien; 2. To the things which are subject to the fewest subordinate liens; 3. In like manner inversely to the number of subordinate liens upon the same things; 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 things which have not been transferred since the prior lien was created;
(2)To the things which have been so transferred without a valuable consideration; and
(3)To the things which have been so transferred for a valuable consideration in the inverse order of the transfer. Cross Reference Marshaling of assets, see section 1658.*Post*, p. 1338. Redemption from liens.redemption from liens Sec. 1326. Right to redeem; subrogation.— Right to redeem; subrogation.Every person, having 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. Cross Reference Pledgor’s right of redemption may be foreclosed, see section 1392.*Post*, p. 1306. 1299 Sec. 1327. Rights of inferios lienor.— Rights of inferior lienor.One who has a lien inferior 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 satisfying the claim secured thereby. Sec. 1328. Redemption from lien, how made.— 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. Cross Reference Offer to perform, see section 453.*Ante*, p. 1186. extinction of liensExtinction of liens. Sec. 1329. Lien deemed accessory to the act whose performance it secures.— 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. Cross Reference Assignment of debt, see section 1348.*Post*, p. 1301. Sec. 1330. Extinction by sale or conversion.— 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 property, its wrongful conversion by the person holding the lien, extinguishes the lien thereon. Cross Reference Sale of property by lien holder, see section 1395.*Post*, p. 1307. Sec. 1331. Lien extinguished by lapse of time under statute of limitations.— By lapse of time.A lien is extinguished by the lapse of the time within which, under the provisions of the Code of Civil Procedure, an action can be brought upon the principal obligation. Sec. 1332. Apportionment of lien.— 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. Sec. 1333. When restoration extinguishes lien.— Restoration extinguishes lien.The voluntary restoration of property to its owner by the holder of a lien thereon dependent upon possession extinguishes the lien as to such property, unless otherwise agreed by the parties, and extinguishes it, notwithstanding any such agreement, as to creditors of the owner and persons subsequently acquiring a title to the property, or a lien thereon, in good faith, and for value. Cross Reference Lien dependent on possession, see section 1393. CHAPTER 63.— MORTGAGEMORTGAGE. mortgages in generalIn general. Sec. 1334. Mortgage, what.— Definition.Mortgage is a contract by whichDefinition. specific property is hypothecated for the performance of an act, without the necessity of a change of possession. 1300 Cross Reference Actual transfer of possession of personalty would change it into a pledge, see section 1337. Sec. 1335. To be in writing.— To be in writing.A mortgage can be created, renewed, or extended, only by writing, subscribed by the party to be charged or by his agent thereunto authorized in writing. Sec. 1336. Lien of a mortgage, when special.— Lien of, when special.The lien of a mortgage is special, unless otherwise expressly agreed, and is independent of possession. Cross Reference Special lien, definition, see section 1312.*Ante*, p. 1297. Sec. 1337. Transfer, when mortgage, when pledged.— Transfer, when mortgage, when pledge.Every transfer of an interest in property, other than in trust, made only as a security for the performance of another act, is to be deemed a mortgage, except when it is accompanied by actual change of possession, in which case it is to be deemed a pledge. Cross Reference Deed absolute on its face, when a mortgage, see section 1338. Sec. 1338. Transfer made subject to defeasance may be proved.— Transfer made subject to defeasance, may be proved.The fact that a transfer was made subject to defeasance on a condition, may, for the purpose of showing such transfer to be a mortgage, be proved (except as against a subsequent purchaser or encumbrancer for value and without notice), though the fact does not appear by the terms of the instrument. Cross Reference Transfer, when mortgage, when pledge, see section 1337. Sec. 1339. Mortgage, on what a lien.— Mortgage as lien.A mortgage is a lien upon everything that would pass by a grant of the property. Cross References Fixtures, generally, see section 188.*Ante*, p. 1152. Growing crops, see section 1365.*Post*, p. 1303. Sec. 1340. Mortgage Does Not Entitle Mortgagee To Possession.— Right 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 mortgagor may agree to such change of possession without a new consideration. Cross Reference Mortgagee’s possession, see sections 1334 and 1336.*Ante*, p. 1299. Sec. 1341. Mortgage not a personal obligation.— 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. Sec. 1342. Waste.— 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. Sec. 1343. Subsequently acquired title inures to mortgagee.— 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. 1301 Sec. 1344. Power of sale.— 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 mortgage is a security. Sec. 1345. Power of attorney to execute.— Power of attorney to execute.A power of attorney to execute a mortgage must be in writing, subscribed, acknowledged, or proved, and certified in the manner prescribed in chapter 22 *Ante*, p. 1164.of this code, and recorded in the office of the registrar of property. Cross Reference Authorization, generally, see section 1046.*Ante*, p. 1265. Sec. 1345a. Mortgage, when void as to third persons.— Mortgage, when void as to third person.A mortgage of property is void as against creditors of the mortgagor and subsequent purchasers and encumbrances of the property in good faith for value, unless it is acknowledged or proved and certified in the *Ante*, p. 1164.manner prescribed in chapter 22 of this code, and recorded in the office of the Registrar of Property of the Canal Zone. Sec. 1346. Recording assignment of mortgage.— 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. Sec. 1347. Recording assignment of mortgage not notice to mortgagor.— Recording assignment, 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 asssignment of the mortgage is not, of itself, notice to a mortgagor, his heirs, or personal representatives, so as to invalidate any payment made by them, or either of them, to the person holding such note, bond, or other instrument. Sec. 1348. Mortgage passes by assignment of debt.— Mortgage passes by assignment of debt.The assignment of a debt secured by mortgage carries with it the security. Sec. 1349. Mortgage, how discharged.— How mortgage 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 registrar of property, who must certify the acknowledgment in form substantially as follows: “Signed and acknowledged before me, this __________ day of __________, in the year __________. A. B., Registrar of Property.” Sec. 1350. Same.— A recorded mortgage, if not discharged as provided in section 1349, 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 chapter 22 of this code, stating that the mortgage has been paid, satisfied, or discharged. Sec. 1351. Duty of mortgagee on satisfaction of mortgage.— Duty of mortgagee on satisfaction.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 such mortgagee, who refuses to execute, acknowledge, and deliver to the mortgagor the certificate of discharge, or to enter satisfaction, 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 which he or they may sustain by reason of such refusal. and shall also forfeit to him or them the sum of one hundred dollars. 1302 Sec. 1352. Provisions of this chapter do not affect bottomry or respondentia.— Contracts of bottomry or respondentia not affected.Contracts of bottomry or respondentia, although in the nature of mortgages, are not affected by any of the provisions of this chapter. Mortgages of personal property.mortgages of personal property Sec. 1353. What personal property may be mortgaged.— What may be mortgaged.Mortgages may be made upon all growing crops, including fruit, and upon any and all kinds of personal property, except articles of wearing apparel and personal adornment. Cross Reference As to the validity of mortgages on excepted property, see section 1366.*Post*, p. 1303. Sec. 1354. Mortgage of stock in trade of merchant.— Mortgage of stock in trade.Where a mortgage is made upon the stock in trade of a merchant, it shall be deemed, in the absence of a contrary intention, to cover goods subsequently acquired; and purchasers from the mortgagor in good faith and in the usual course of business shall not be liable to the mortgagee. Sec. 1355. Form of personal mortgage.— Form of personal mortgage.A mortgage of personal property may be made in substantially the following form: This mortgage, made the __________ day of __________, in the year __________, by A B, of __________, by occupation a __________, mortgagor, to C D, of __________, by occupation a __________, mortgagee, witnesseth: 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 __________, with interest thereon (or, as security for the payment of a note or obligation, describing it, and so forth) A B. Sec. 1356. When void as to third persons.— When void as to third persons.A mortgage of personal 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 and certified in the manner prescribed in *Ante*, p. 1164.chapter 22 of this code, and recorded in the office of the registrar of property of the Canal Zone. Sec. 1357. Books to be kept for personal mortgages.— Recording books for.Mortgages of personal property must be recorded in books kept for personal mortgages exclusively. Cross Reference Manner of acknowledging, proving, certifying, and recording, see section 1356. Sec. 1359. Removing mortgaged property from zone.— Removing mortgaged property from Zone.No mortgagor shall remove or permit the removal of mortgaged property from the Canal Zone without the written consent of the mortgagee. Sec. 1360. How foreclosed.— How foreclosed.A mortgagee of personal property, when the debt to secure which the mortgage was executed becomes due, may foreclose the mortgagor’s right of redemption by a sale *Post*, p. 1305.of the property, made in the manner and upon the notice prescribed by chapter 64 of this code on “pledge,” or by proceedings under the Code of Civil Procedure. Cross References Actual notice required, see section 1383.*Post*, p. 1305. Sale of pledge, see sections 1381 et seq.*Post*, p. 1305. 1303 Sec. 1361. Mortgaged property may be levied upon.— Mortgaged property may be levied upon.Personal property mortgaged may be taken under attachment or execution issued at the suit of a creditor of the mortgagor. Sec. 1362. Attachment and executions on mortgaged personal property.— Attachment and executions on.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 registrar of property, payable to the order of the mortgagee: *Proviso*.When mortgage void, etc., indemnity bond.*Provided, however*, That when an attachment or execution creditor presents to the officer a verified statement that the mortgage is void or invalid for reasons therein specified 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 mortgagee and shall indemnify them and each of them for the taking of the property against loss, liability, damages, costs, and counsel fees. Cross Reference Measure of special owner’s damage for conversion, see section 1618.*Post*, p. 1333. Sec. 1363. Application of proceeds of sale.— Application of proceeds.When the property is taken after payment or tender of deposit as provided for in section 1362, and 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. When the property is taken after presentation to the officer of the verified statement and bond mentioned in the proviso in section 1362 and is sold under process the officer must apply the proceeds of the sale as follows: 1. To the satisfaction of the amount specified in the process including interest and costs; and 2. The balance, if any, in like manner as the proceeds of sales under execution are applied in other cases. Sec. 1364. Certain sections not applicable to mortgage of certain ships.— Designated sections not applicable to mortgage of certain ships.*Ante*, p. 1302.Sections 1356 and 1357 to 1359 do not apply to any mortgage of a ship or part of a ship under the flag of the United States. Sec. 1365. Continuance of lien of mortgage on crops.— 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. Sec. 1366. Validity of certain mortgages.— Validity of certain mortgages.Mortgages of personal property, other than that mentioned in section 1353, and mortgages not made in conformity with the, provisions of this subchapter, are nevertheless valid between the parties, their heirs, legatees, and personal representatives, and persons who, before parting with value, have actual notice thereof. CHAPTER 64.— PLEDGEPLEDGE. Sec. 1367. Pledge, what.— Defined.Pledge is a deposit of personal property by way of security for the performance of another act. 1304 Cross Reference Increase of property pledged, see section 1370. Sec. 1368. When contract is to be deemed a pledge.— When contract deemed a pledge.Every contract by which the possession of personal property is transferred, as security only, is to be deemed a pledge. Sec. 1369. Delivery essential to validity of pledge.— Delivery essential.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 hereinafter prescribed. Sec. 1370. Increase of thing.— Increase of property.The increase of property pledged is pledged with the property. Sec. 1371. Lienor may pledge property to extent of his lien.— Lienor may pledge property to extent of lien.One who has a lien upon property may pledge it to the extent of his lien. Cross References Compare section 1372. Lienor’s action for damages, see section 1618.*Post*, p. 1333. Sec. 1372. Real owner can not defeat pledge of property transferred to apparent owner for the purpose of pledge.— Real owner can not defeat pledge of property transferred to apparent owner.One who has allowed another to assume the apparent ownership of property for the purpose of making any transfer of it, can not 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. Sec. 1373. Pledge lender, what.— Pledge lender.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. Sec. 1374. Pledge holder, what.— Pledge holder.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. Sec. 1375. When pledge lender may withdraw property pledged.— When pledge lender may withdraw property.One who pledges property as security for the obligation of another can not withdraw the property pledged otherwise than as a pledgor for himself might, and if he receives from the debtor a consideration for the pledge he can not withdraw it without his consent. Sec. 1376. Obligations of pledge holder.— Obligations of pledge holder.A pledge holder for reward can not 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. Sec. 1377. Pledge holder must enforce rights of pledgee.— Pledge holder must enforce rights of pledgee.A pledge holder must enforce all the rights of the pledgee, unless authorized by him to waive them. Sec. 1378. Obligation of pledgee and pledge holder, for reward.— Obligation of pledgees, etc., for reward.A pledgee, or a pledge holder for reward, assumes the duties and liabilities of a depositary for reward. Cross Reference Depositary for reward, see section 725.*Ante*, p. 1229. Sec. 1379. Gratuitous pledge holder.— Gratuitous pledge holder.A gratuitous pledge holder assumes the duties and liabilities of a gratuitous depositary. 1305 Cross Reference Gratuitous pledge holder, see sections 722 and 723.*Ante*, p. 1229. Sec. 1380. Debtor’s misrepresentation of value of pledge.— Debtor’s misrepresentation of value.Where a debtor has obtained credit, or an extension of time, by a fraudulent misrepresentation of the value of property pledged by or for him, the creditor may demand a further pledge to correspond with the value represented; and in default thereof may recover his debt immediately, though it be not actually due. Sec. 1381. When pledgee may sell.— 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 prescribed. Cross Reference Foreclosure of right of redemption, see section 1392.*Post*, p. 1306. Sec. 1382. Sale of pledged property.— Sale.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. Cross Reference Waiver of demand of performance before sale, see section 1385. Sec. 1383. Notice of sale to pledgor.— Notice of.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. Sec. 1384. Waiver of notice of sale.— Waiver of.Notice of sale may be waived by a pledgor at any time; but is not waived by a mere waiver of demand of performance. Sec. 1385. Waiver of demand.— Waiver of demand.A debtor or pledgor waives a demand of performance as a condition precedent to a sale of the property pledged, by a positive refusal to perform, after performance is due; but can not waive it in any other manner except by contract. Sec. 1386. Sale of pledged property, manner of.— Sale by public auction.The sale by pledgee, of property pledged, must be made by public auction, in the manner and upon the notice of sale of personal property under execution. Sec. 1387. Pledgee’s sale of securities.— Pledgee’s sale of securities.A pledgee can not sell any evidence of debt pledged to him, except the obligations of governments, States, or corporations; but he may collect the same when due. Cross Reference Right of redemption, see section 1326.*Ante*, p. 1298. Sec. 1388. Sale on the demand of the pledgor.— Sale on demand of pledgor.Whenever 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. Cross Reference Retaining proceeds, see section 1390.*Post*, p. 1306. Sec. 1389. Surplus to be paid to pledgor.— Surplus to be paid pledgor.After a pledgee has lawfully sold property pledged, or otherwise collected its proceeds, he may deduct therefrom the amount due under the principal obli-1306gation, and the necessary expenses of sale and collection, and must pay the surplus to the pledgor, on demand. Sec. 1390. Pledgee may retain all that can become due.— Pledgee may retain all that can become due.When property pledged is sold by 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. Sec. 1391. Pledgee or pledge holder may purchase.— Right to purchase at sale.Whenever property pledged is sold at public auction, in the manner provided by *Ante*, p. 1305.section 1386, the pledgee or pledge holder may purchase said property at such sale. Sec. 1392. Pledgee may foreclose right of redemption.— Pledgee may foreclose right of redemption.Instead 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. CHAPTER 65.— OTHER LIENSOTHER LIENS. Cross Reference Lien of seller of goods, see sections 649 et seq.*Ante*, p. 1215. Sec. 1393. Lien on personal property for services thereon.— Lien on personal property for services.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 repaire any article of personal property, at the request of the owner, or legal nossessor of the property, has a lien on the same for his reasonable charges for the balance due for such work done and inaterials furnished, and may retain possession of the same until the charges are paid.; and livery or boarding or feed-stable proprietore, and persons pasturing horses or stock, have a lien, dependent on possession, for their compensation in caring for, boarding, feeding, or pasturing such horses or stock; and laundry 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 veterinary proprietors and veterinary surgeons shall have a lien, dependent on possession, for their compensation in caring for, boarding, feeding, and medical treatment of animals; and keepers of garages for automobiles shall have a lien, dependent on possession, for their compensation in caring for and safe-keeping such automobiles. Cross References Carrier’s lien, see section 954.*Ante*, p. 1255. Restoration of property extinguishes lien, see section 1333.*Ante*, p. 1299. Sec. 1394. Limitation on amount recoverable where written given.— Limitation, where written notice not given.That portion of any lien, as provided for in section 1393, in excess of $100, for any work, services, care, or safe-keeping rendered or performed at the request of any person other than the holder of the legal title, shall be invalid, unless prior to commencing any such work, service, care, or safe-keeping, the person claiming such lien shall give actual notice in writing either by personal service or by registered letter addressed to the holder of the legal title to such property, if known. In the case of automobiles, the 1307person named as legal owner in the registration certificate, shall be deemed for the purpose of this section, as the holder of the legal title. Sec. 1395. Lien holder may sell property; notice of sale; proceeds.— Lien holder may sell; notice; proceeds.*Ante*, p. 1306.If the person entitled to the lien provided for in section 1393 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 public auction, and by giving at least ten days’ previous notice of such sale by advertising in some newspaper of general circulation in the Canal Zone. 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. Cross Reference Extinguishment of lien by sale or conversion, see section 1330.*Ante*, p. 1299. Sec. 1396. Lien of factor.— Lien of factor.A factor has a general lien, dependent on possession, for all that is due to him as such, upon all articles of commercial value that are intrusted to him by the same principal. Cross References Factor’s enforcement of lien, see section 880.*Ante*, p. 1251. Power of pledging, see section 1372.*Ante*, p. 1304. Sec. 1397. Banker’s lien.— Banker’s lien.A banker has a general lien, dependent on possession, upon all property in his hands belonging to a customer, for the balance due to him from such customer in the course of the business. Sec. 1398. Officer’s lien.— 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. CHAPTER 66.— NEGOTIABLE INSTRUMENTS IN GENERALNEGOTIABLE INSTRUMENTS IN GENERAL. Note.—This chapter and chapters 67 to 69 of this code comprise the Uniform I, pp. 1322–1329.Negotiable Instruments Act. form and interpretationForm and interpretation. Sec. 1400. Requirements for negotiable instrument.— Requirements.An instrument to be negotiable must conform to the following requirements:
(1)It must be in writing and signed by the maker or drawer;
(2)Must contain an unconditional promise or order to pay a sum certain in money;
(3)Must be payable on demand, or at a fixed or determinable future time;
(4)Must be payable to order or to bearer; and
(5)Where the instrument is addressed to a drawee, he must be named or otherwise indicated therein with reasonable certainty. Sec. 1401. Sum payable certain.— Sum certain.The sum payable is a sum certain within the meaning of chapters 66 to 69 of this code, although it is to be paid—
(1)With interest; or
(2)By stated installments; or 1308
(3)By stated installments, with a provision that upon default in payment of any installment or of interest, the whole shall become due; or
(4)With exchange, whether at a fixed rate or at the current rate; or
(5)With costs of collection or an attorney’s fee, in case payment shall not be made at maturity. Sec. 1402. Unqualified promise unconditional.— Unconditional promise.An unqualified order or promise to pay is unconditional within the meaning of chapters 66 to 69 of this code, though coupled with—
(1)An indication of a particular fund out of which reimbursement is to be made, or a particular account to be debited with the amount; or
(2)A statement of the transaction which gives rise to the instrument. But an order or promise to pay out of a particular fund is not unconditional. Sec. 1403. Time for payment.— Time for payment.An instrument is payable at a determinable, future time, within the meaning of chapters 66 to 69 of this code, which is expressed to be payable—
(1)At a fixed period after date or sight; or
(2)On or before a fixed or determinable future time specified therein; or
(3)On or at a fixed period after the occurrence of a specified event, which is certain to happen, though the time of happening be uncertain. An instrument payable upon a contingency is not negotiable, and the happening of the event does not cure the defect. Sec. 1404. Nonnegotiable instrument.— Nonnegotiable instrument.An instrument which contains an order or promise to do any act in addition to the payment of money is Exceptions.not negotiable. But the negotiable character of an instrument otherwise negotiable is not affected by a provision which—
(1)Authorizes the sale of collateral securities in case the instrument be not paid at maturity; or
(2)Authorizes a confession of judgment, if the instrument be not paid at maturity; or
(3)Waives the benefit of any law intended for the advantage or protection of the obligor; or
(4)Gives the holder an election to require something to be done in lieu of payment of money. But nothing in this section shall validate any provision or stipulation otherwise illegal. Sec. 1405. Negotiability not affected.— Negotiability not affected.The validity and negotiable character of an instrument are not affected by the fact that—
(1)It is not dated; or
(2)Does not specify the value given, or that any value has been given therefor; or
(3)Does not specify the place where it is drawn or the place where it is payable; or
(4)Bears a seal; or
(5)Designates a particular kind of current money in which payment is to be made. But nothing in this section shall alter or repeal any statute requiring in certain cases the nature of the consideration to be stated in the instrument. 1309 Sec. 1406. Payable on demand.— Payable on demand.An instrument is payable on demand—
(1)Where it is expressed to be payable on demand, or at sight, or on presentation; or
(2)In which no time for payment is expressed. Where an instrument is issued, accepted, or indorsed when overdue, it is, as regards the person so issuing, accepting, or indorsing it, payable on demand. Sec. 1407. Payable to order.— Payable to order.The instrument is payable to order where it is drawn payable to the order of a specified person or to him or his order. It may be drawn payable to the order of—
(1)A payee who is not maker, drawer, or drawee; or
(2)The drawer or maker; or
(3)The drawee; or
(4)Two or more payees jointly; or
(5)One or some of several payees; or
(6)The holder of an office for the time being. Where the instrument is payable to order the payee must be named or otherwise indicated therein with reasonable certainty. Sec. 1408. Payable to bearer.— Payable to bearer.The instrument is payable to bearer—
(1)When it is expressed to be so payable; or
(2)When it is payable to a person named therein or bearer; or
(3)When it is payable to the order of a fictitious or nonexisting person, and such fact was known to the person making it so payable;
(4)When the name of the payee does not purport to be the name of any person; or
(5)When the only or last indorsement is an indorsement in blank. Sec. 1409. Language of instrument.— Language of instrument.The instrument need not follow the language of chapters 66 to 69 of this code, but any terms are sufficient which clearly indicate an intention to conform to the requirements thereof. Sec. 1410. True date.— True date.Where the instrument or an acceptance or any indorsement thereon is dated, such date is deemed prima facie to be the true date of the making, drawing, acceptance, or indorsement as the case may be. Sec. 1411. Ante or post dating.— Ante or post dating.The instrument is not invalid for the reason only that it is antedated or postdated, provided this is not done for an illegal or fraudulent purpose. The person to whom an instrument so dated is delivered acquires the title thereto as of the date of delivery. Sec. 1412. Insertion of date.— Insertion of date.Where an instrument expressed to be payable at a fixed period after date is issued undated, or where the acceptance of an instrument payable at a fixed period after sight is undated, any holder may insert therein the true date of issue or acceptance, and the instrument shall be payable accordingly. The insertion of a wrong date does not avoid the instrument in the hands of a subsequent holder in due course; but as to him, the date so inserted is to be regarded as the true date. Sec. 1413. Filling up blanks.— Filling up blanks.Where the instrument is wanting in any material particular, the person in possession thereof has a prima facie authority to complete it by filling up the blanks therein. And a signature on a blank paper delivered by the person making the signature in order that the paper may be converted into a negotiable instrument operates as a prima facie authority to fill it up as such for any amount. In order, however, that any such instrument when completed may be enforced against any person who became a party thereto prior to its completion, it must be filled up 1310strictly in accordance with the authority given and within a reasonable time. But if any such instrument, after completion, is negotiated to a holder in due course, it is valid and effectual for all purposes in his hands, and he may enforce it as if it had been filled up strictly in accordance with the authority given and within a reasonable time. Sec. 1414. Incomplete instrument not delivered.— Incomplete instrument not delivered.Where an incomplete instrument has not been delivered it will not, if completed and negotiated, without authority, be a valid contract in the hands of any holder, as against any person whose signature was placed thereon before delivery. Sec. 1415. Delivery necessary.— Delivery necessary.Every contract on a negotiable instrument is incomplete and revocable until delivery of the instrument for the purpose of giving effect thereto. As between immediate parties, and as regards a remote party other than a holder in due course, the delivery, in order to be effectual, must be made either by or under the authority of the party making, drawing, accepting, or indorsing, as the case may be; and in such case the delivery may be shown to have been conditional, or for a special purpose only, and not for the purpose of transferring the property in the instrument. But where the instrument is in the hands of a holder in due course, a valid delivery thereof by all parties prior to him so as to make them liable to him is conclusively presumed. And where the instrument is no longer in the possession of a party whose signature appears thereon, a valid and intentional delivery by him is presumed until the contrary is proved. Sec. 1416. Rules of construction.— Rules of construction.Where the language of the instrument is ambiguous or there are omissions therein, the following rules of construction apply:
(1)Where the sum payable is expressed in words and also in figures and there is a discrepancy between the two, the sum denoted by the words is the sum payable; but if the words are ambiguous or uncertain, reference may be had to the figures to fix the amount;
(2)Where the instrument provides for the payment of interest, without specifying the date from which interest is to run, the interest runs from the date of the instrument, and if the instrument is undated, from the issue thereof;
(3)Where the instrument is not dated, it will be considered to be dated as of the time it was issued;
(4)Where there is a conflict between the written and printed provisions of the instrument, the written provisions prevail;
(5)Where the instrument is so ambiguous that there is doubt whether it is a bill or note, the holder may treat it as either at his election;
(6)Where a signature is so placed upon the instrument that it is not clear in what capacity the person making the same intended to sign, he is to be deemed an indorser;
(7)Where an instrument containing the words “I promise to pay” is signed by two or more persons, they are deemed to be jointly and severally liable thereon. Sec. 1417. Liability on instrument.— Liability on.No person is liable on the instrument whose signature does not appear thereon, except as herein otherwise expressly provided. But one who signs in a trade or assumed name will be liable to the same extent as if he had signed in his own name. Sec. 1418. Signature by agent.— Signature by agent.The signature of any party may be made by a duly authorized agent. No particular form of appointment is necessary for this purpose; and the authority of the agent may be established as in other cases of agency. 1311 Sec. 1419. Liability of agent.— Liability of agent.Where the instrument contains or a person adds to his signature words indicating that he signs for or on behalf of a principal, or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as an agent, or as filling a representative character, without disclosing his principal, does not exempt him from personal liability. Sec. 1420. Signature by “procuration.”— Signature by “procuration.”A signature by “procuration” operates as notice that the agent has but a limited authority to sign, and the principal is bound only in case the agent in so signing acted within the actual limits of his authority. Sec. 1421. Indorsement by corporation or infant.— Indorsement by corporation or infant.The indorsement or assignment of the instrument by a corporation or by an infant passes the property therein, notwithstanding that from want of capacity the corporation or infant may incur no liability thereon. Sec. 1422. Forged signature.— Forged signature.When a signature is forged or made without the authority of the person whose signature it purports to be, it is wholly inoperative, and no right to retain the instrument, or to give a discharge therefor, or to enforce payment thereof against any party thereto, can be acquired through or under such signature, unless the party, against whom it is sought to enforce such right, is precluded from setting up the forgery or want of authority. consideration Sec. 1423. Presumption of consideration.— Presumption of consideration.Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration; and every person whose signature appears thereon to have become a party thereto for value. Sec. 1424. Consideration, what constitutes.— What constitutes consideration.Value is any consideration sufficient to support a simple contract. An antecedent or preexisting debt constitutes value, and is deemed such whether the instrument is payable on demand or at a future time. Sec. 1425. Holder for value.— Holder for value.Where value has at any time been given for the instrument, the holder is deemed a holder for value in respect to all parties who become such prior to that time. Sec. 1426. Lien on an instrument.— Lien on instrument.Where the holder has a lien on instrument, arising either from contract or by implication of law, he is deemed a holder for value to the extent of his lien. Sec. 1427. Effect of want of consideration.— Want of consideration.Absence or failure of consideration is matter of defense as against any person not a holder in due course; and partial failure of consideration is a defense pro tanto, whether the failure is an ascertained and liquidated amount or otherwise. Sec. 1428. Liability of accommodation party.— Liability of accommodation party.An accommodation party is one who has signed the instrument as maker, drawer, acceptor, or indorser, without receiving value therefor, and for the purpose of lending his name to some other person. Such a person is liable on the instrument to a holder for value, notwithstanding such holder at the time of taking the instrument knew him to be only an accommodation party. negotiationNegotiation. Sec. 1429. Negotiation.— An instrument is negotiated when it is transferred from one person to another in such manner as to constitute the transferee the holder thereof. If payable to bearer it is negotiated by delivery; if payable to order it is negotiated by the indorsement of the holder completed by delivery. 1312 Sec. 1430. Indorsement.— Indorsement.The indorsement must be written on the instrument itself or upon a paper attached thereto. The signature of the indorser, without additional words, is a sufficient indorsement. Sec. 1431. Indorsement of entire instrument.— Indorsement of entire instrument.The indorsement must be an indorsement of the entire instrument. An indorsement which purports to transfer to the indorsee a part only of the amount payable, or which purports to transfer the instrument to two or more indorsees severally, does not operate as a negotiation of the instrument. But where the instrument has been paid in part, it may be indorsed as to the residue. Sec. 1432. Kinds of indorsement.— An Kinds of indorsement.indorsement may be either special or in blank; and it may also be either restrictive or qualified, or conditional. Sec. 1433. Special indorsement.— Special.A special indorsement specifies the person to whom, or to whose order, the instrument is to be payable; and the indorsement of such indorsee is necessary to the further negotiation of the instrument. An indorsement in blank specifies no indorsee, and an instrument so indorsed is payable to bearer and may be negotiated by delivery. Sec. 1434. Blank indorsement, how changed to special indorsement.— Blank; how changed to special.The holder may convert a blank indorsement into a special indorsement by writing over the signature of the indorser in blank any contract consistent with the character of the indorsement. Sec. 1435. Indorsement restrictive.— Restrictive.An indorsement is restrictive, which either—
(1)Prohibits the further negotiation of the instrument; or
(2)Constitutes the indorsee the agent of the indorser; or
(3)Vests the title in the indorsee in trust for or to the use of some other person. But the mere absence of words implying power to negotiate does not make an indorsement restrictive. Sec. 1436. Rights conferred.— Rights conferred.A restrictive indorsement confers upon the indorsee the right—
(1)To receive payment of the instrument;
(2)To bring any action thereon that the indorser could bring;
(3)To transfer his rights as such indorsee, where the form of the indorsement authorizes him to do so. But all subsequent indorsees acquire only the title of the first indorsee under the restrictive indorsement. Sec. 1437. Qualified indorsement.— Qualified.A qualified indorsement constitutes the indorser a mere assignor of the title to the instrument. It may be made by adding to the indorser’s signature the words “without recourse” or any words of similar import. Such an indorsement does not impair the negotiable character of the instrument. Sec. 1438. Conditional indorsement.— Conditional.Where an indorsement is conditional, a party required to pay the instrument may disregard the condition, and make payment to the indorsee or his transferee, whether the condition has been fulfilled or not. But any person to whom an instrument so indorsed is negotiated will hold the same, or the proceeds thereof, subject to the rights of the person indorsing conditionally. Sec. 1439. Payable to bearer.— Payable to bearer.Where an instrument, payable to bearer, is indorsed specially it may nevertheless be further negotiated by delivery; but the person indorsing specially is liable as indorser to only such holders as make title through his indorsement. Sec. 1440. Payable to two or more persons.— Payable to two or more persons.Where an instrument is payable to the order of two or more payees or indorsees who 1313are not partners, all must indorse, unless the one indorsing has authority to indorse for the others. Sec. 1441. Indorsed to person as “cashier.”— Indorsed to person as “cashier.”Where an instrument is drawn or indorsed to person as “cashier” or other fiscal officer of a bank or corporation, it is deemed prima facie to be payable to the bank or corporation of which he is such officer, and may be negotiated by either the indorsement of the bank or corporation or the indorsement of the officer. Sec. 1442. Name misspelled.— Name misspelled.Where the name of a payee or indorsee is wrongly designated or misspelled, he may indorse the instrument as therein described, adding, if he thinks fit, his proper signature. Sec. 1443. In representative capacity.— In representative capacity.Where any person is under obligation to indorse in a representative capacity, he may indorse in such terms as to negative personal liability. Sec. 1444. Time of indorsement.— Time of indorsement.Except where an indorsement bears date after the maturity of the instrument, every negotiation is deemed prima facie to have been effected before the instrument was overdue. Sec. 1445. Place of indorsement.— Place of indorsement.Except where the contrary appears, every indorsement is presumed prima facie to have been made at the place where the instrument is dated. Sec. 1446. Continuation.— Continuation of negotiability.An instrument negotiable in its origin continues to be negotiable until it has been restrictively indorsed or discharged by payment or otherwise. Sec. 1447. Striking out indorsement.— Striking out indorsement.The holder may at any time strike out any indorsement which is not necessary to his title. The indorser whose indorsement is struck out, and all indorsers subsequent to him, are thereby relieved from liability on the instrument. Sec. 1448. Transfer without indorsement.— Transfer without indorsement.Where the holder of an instrument payable to his order transfers it for value without indorsing it, the transfer vests in the transferee such title as the transferrer had therein, and the transferee acquires, in addition, the right to have the indorsement of the transferrer. But for the purpose of determining whether the transferee is a holder in due course, the negotiation takes effect as to the time when the indorsement is actually made. Sec. 1449. Prior party may negotiate.— Prior party may negotiate.Where an instrument is negotiated back to a prior party such party may, subject to the provisions of chapters 66 to 69 of this code, reissue *Ante*, p. 1307; *post*, p. 1329.and further negotiate the same. But he is not entitled to enforce payment thereof against any intervening party to whom he was personally liable. rights of the holderRights of holder. Sec. 1450. Right to sue.— To sue in own name.The holder of a negotiable instrument may sue thereon in his own name and payment to him in due course discharges the instrument. Sec. 1451. Holder in due course.— Holder in due course.A holder in due course is a holder who has taken the instrument under the following conditions:
(1)That it is complete and regular upon its face;
(2)That he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact;
(3)That he took it in good faith and for value;
(4)That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it. 1314 Cross References Notice before full amount paid, see section 1453. When person not deemed a holder in due course, see section 1452. Who deemed a holder in due course, see section 1458. Sec. 1452. Not holder in due course.— Not holder in due course.Where an instrument payable on demand is negotiated an unreasonable length of time after its issue, the holder is not deemed a holder in due course. Cross References Notice before full amount paid, see section 1453.*Ante*, p. 1313. Who deemed a holder in due course, see sections 1451 and 1458. Sec. 1453. Notice before full amount paid.— Notice before full amount paid.Where the transferee receives notice of any infirmity in the instrument or defect in the title of the person negotiating the same before he has paid the full amount agreed to be paid therefor, he will be deemed a holder in due course only to the extent of the amount theretofore paid by him. Cross References Rights of holder in due course, see section 1456. Who deemed a holder in due course, see sections 1451 and 1458.*Ante*, p. 1313. Who not deemed a holder in due course, see section 1452. Sec. 1454. When title detective.— When title defective.The title of a person who negotiates an instrument is defective within the meaning of chapters *Ante*, p. 1307; *post*, p. 1329.66 to 69 this code, when he obtained the instrument, or any signature thereto, by fraud, duress, or force and fear, or other unlawful means, or for an illegal consideration, or when he negotiates it in breach of faith, or under such circumstances as amount to a fraud. Sec. 1455. Notice of defect.— Notice of defect.To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith. Sec. 1456. Rights of holder in due course.— Rights of holder in due course.A holder in due course holds the instrument free from any defect of title of prior parties, and free from defenses available to prior parties among themselves, and may enforce payment of the instrument for the full amount thereof against all parties liable thereon. Cross References Notice before full amount paid, see section 1453. Who deemed holder in due course, see sections 1451 and 1458.*Ante*, p. 1313. Who not deemed a holder in due course, see section 1452. Sec. 1457. When subject to original.— Defense against holder not in due course.In the hands of any holder other than a holder in due course, a negotiable instrument is subject to the same defenses as if it were nonnegotiable. But a holder who derives his title through a holder in due course, and who is not himself a party to any fraud or illegality affecting the instrument, has all the rights of such former holder in respect of all parties prior to the latter. Sec. 1458. Who deemed holder in due course.— Who deemed holder in due course.Every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as holder in due course. But the last-mentioned rule does not apply in favor of a 1315 party who became bound on the instrument prior to the acquisition of such defective title. Cross References Notice before full amount paid, see section 1453.*Ante*, p. 1314. Rights of holder In due course, see section 1456. What constitutes a holder in due course, see section 1451.*Ante*, p. 1313. When person not deemed a holder in due course, see section 1452.*Ante*, p. 1314. liabilities of partiesLiabilities of parties. Sec. 1459. Liability of maker.— Of maker.The maker of a negotiable instrument by making it engages that he will pay it according to its tenor, and admits the existence of the payee and his then capacity to indorse. Sec. 1460. Liability of drawer.— Of drawer.The drawer by drawing the instrument admits the existence of the payee and his then capacity to indorse; and engages that on due presentment the instrument will be accepted or paid, or both, according to its tenor, and that if it be dishonored, and the necessary proceedings on dishonor be duly taken, he will pay the amount thereof to the holder, or to any subsequent indorser who may be compelled to pay it. But the drawer may insert in the instrument an express stipulation negativing or limiting his own liability to the holder. Sec. 1461. Liability of acceptor.— Of acceptor.The acceptor by accepting the instrument engages that he will pay it according to the tenor of his acceptance; and admits—
(1)The existence of the drawer, the genuineness of his signature, and his capacity and authority to draw the instrument; and
(2)The existence of the payee and his then capacity to indorse. Sec. 1462. Person deemed indorser.— Person deemed indorser.A person placing his signature upon an instrument otherwise than as maker, drawer, or acceptor, is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity. Sec. 1463. Liability of irregular indorser.— Liability of irregular indorser.Where a person, not otherwise a party to an instrument, places thereon his signature in blank before delivery, he is liable as indorser, in accordance with the following rules:
(1)If the instrument is payable to the order of a third person, he is liable to the payee and to all subsequent parties.
(2)If the instrument is payable to the order of the maker or drawer, or is payable to bearer, he is liable to all parties subsequent to the maker or drawer.
(3)If he signs for the accommodation of the payee, he is liable to all parties subsequent to the payee. Sec. 1464. Warranty when negotiation by delivery, etc.— Warranty when negotiation by delivery, etc.Every person negotiating an instrument by delivery or by a qualified indorsement, warrants—
(1)That the instrument is genuine and in all respects what it purports to be;
(2)That he has a good title to it;
(3)That all prior parties had capacity to contract;
(4)That he has no knowledge of any fact which would impair the validity of the instrument or tender it valueless. But when the negotiation is by delivery only, the warranty extends in favor of no holder other than the immediate transferee. The provisions of subdivision three of this section do not apply to persons negotiating public or corporation securities, other than bills and notes. 1316 Sec. 1465. Liability of general indorser.— Of general indorser.Every indorser who indorses without qualification, warrants to all subsequent holders in due course—
(1)*Ante*, p. 1315.The matters and things mentioned in subdivisions 1, 2, and 3 of section 1464; and
(2)That the instrument is at the time of his indorsement valid and subsisting. And, in addition, he engages that on due presentment it shall be accepted or paid, or both, as the case may be, according to its tenor, and that if it be dishonored, and the necessary proceedings on dishonor be duly taken, he will pay the amount thereof to the holder, or to any subsequent indorser who may be compelled to pay it. Sec. 1466. When negotiable by delivery.— When negotiable by delivery.Where a person places his indorsement on an instrument negotiable by delivery he incurs all the liabilities of an indorser. Sec. 1467. Liability of indorsers.— Order of liability of indorsers.As respects one another indorsers are liable prima facie in the order in which they indorse; but evidence is admissible to show that as between or among themselves they have agreed otherwise. Joint payees or joint indorsees who indorse are deemed to indorse jointly and severally. Sec. 1468. Liability of broker or agent.— Liability of broker or agent.*Ante*, p. 1315.Where a broker or other agent negotiates an instrument without indorsement he incurs all the liabilities prescribed by section 1464, unless he discloses the name of his principal and the fact that he is acting only as agent. presentment for payment Sec. 1469. Presentment for payment.— Presentment for payment.Presentment for payment is not necessary in order to charge the person primarily liable on the instrument; but if the instrument is, by its terms, payable at a special place, and he is able and willing to pay it there at maturity, such ability and willingness are equivalent to a tender of payment upon his part. But except as herein otherwise provided, presentment for payment is necessary in order to charge the drawer and indorsers. Sec. 1470. Presentment for payment.— When instrument payable on due date.Where the instrument is payable on demand, presentment must be made on the day it fails due. Where it is payable on demand, presentment must be made within a reasonable time after its issue, except that in the case of a bill of exchange, presentment for payment will be sufficient if made within a reasonable time after the last negotiation thereof. Sec. 1471. What constitutes sufficient presentment.— What constitutes sufficient presentment.Presentment for payment, to be sufficient, must be made—
(1)By the holder, or by some person authorized to receive payment, on his behalf;
(2)At a reasonable hour on a business day;
(3)At a proper place as herein defined;
(4)To the person primarily liable on the instrument, or if he is absent or inaccessible, to any person found at the place where the presentment is made. Sec. 1472. Place of presentment.— Place of.Presentment for payment is made at the proper place—
(1)Where a place of payment is specified in the instrument and it is there presented;
(2)Where no place of payment is specified, but the address of the person to make payment is given in the instrument and it is there presented;
(3)Where no place of payment is specified and no address is given and the instrument is presented at the usual place of business or residence of the person to make payment; 1317
(4)In any other case if presented to the person to make payment wherever he can be found, or if presented at his last known place of business or residence. Sec. 1473. Must be exhibited.— Must be exhibited.The instrument must be exhibited to the person from whom payment is demanded, and when it is paid must be delivered up to the party paying it. Sec. 1474. Where payable at bank.— When payable at bank.Where the instrument is payable at a bank, presentment for payment must be made during banking hours, unless the person to make payment has no funds there to meet it at any time during the day, in which case presentment at any hour before the bank is closed on that day is sufficient. Sec. 1475. When person liable is dead.— When person liable is dead.Where the person primarily liable on the instrument is dead, and no place of payment is specified, presentment for payment must be made to his personal representative, if such there be, and if, with the exercise of reasonable diligence, he can be found. Sec. 1476. Persons liable as partners.— Persons liable as partners.Where the persons primarily liable on the instrument are liable as partners, and no place of payment is specified, presentment for payment may be made to any one of them, even though there has been a dissolution of the firm. Sec. 1477. Joint debts.— Joint debts.Where there are several persons, not partners, primarily liable on the instrument, and no place of payment is specified, presentment must be made to them all. Sec. 1478. Presentment for payment not required when.— Presentment for payment not required, when.Presentment for payment is not required in order to charge the drawer where he has no right to expect or require that the drawee or acceptor will pay the instrument. Sec. 1479. Presentment for payment not required when.— Accommodation parties.Presentment for payment is not required in order to charge an indorser where the instrument was made or accepted for his accommodation and he has no reason to expect that the instrument will be paid if presented. Sec. 1480. Delay excused.— Delay excused.Delay in making presentment for payment is excused when the delay is caused by circumstances beyond the control of the holder, and not imputable to his default, misconduct, or negligence. When the cause of delay ceases to operate, presentment must be made with reasonable diligence. Sec. 1481. When dispensed with.— When dispensed with.Presentment for payment is dispensed with—
(1)Where after the exercise of reasonable diligence presentment as required by this title can not be made;
(2)Where the drawee is a fictitious person;
(3)By waiver of presentment, express or implied. Sec. 1482. When dishonored by nonpayment.— When dishonored by nonpayment.The instrument is dishonored by nonpayment when—
(1)It is duly presented for payment and payment is refused or can not be obtained; or
(2)Presentment is excused and the instrument is overdue and unpaid. Sec. 1483. Liability of person secondarily liable.— Liability of person secondarily liable.*Ante*, p. 1307; *post*, p. 1329.Subject to the provisions of chapters 66 to 69 of this code, when the instrument is dishonored by nonpayment, an immediate right of recourse to all parties secondarily liable thereon accrues to the holder. Sec. 1484. Time of payment.— Time of payment.Every negotiable instrument is payable at the time fixed therein without grace. When the day of maturity falls upon Sunday, or a holiday, the instrument is payable on the next succeeding business day. Instruments falling due on Saturday are to be presented for payment on the next succeeding 1318business day, except that instruments payable on demand may, at the option of the holder, be presented for payment before twelve o’clock noon on Saturday when that entire day is not a holiday. Sec. 1485. Determination of time.— Determination of time.Where the instrument is payable at a fixed period after date, after sight, or after the happening of a specified event, the time of payment is determined by excluding the day from which the time is to begin to run, and by including the date of payment. Cross Reference Excluding first day and including last day, see section 9.*Ante*, p. 1124. Sec. 1486. Where payable at bank.— Payable at bank.Where the instrument is made payable at a bank it is equivalent to an order to the bank to pay the same for the account of the principal debtor thereon. Sec. 1487. Payment in due course.— Payment in due course.Payment is made in due course when it is made at or after the maturity of the instrument to the holder thereof in good faith and without notice that his title is defective. notice of dishonor Sec. 1488. Notice of dishonor.— Notice of dishonor.Except as herein otherwise provided, when a negotiable instrument has been dishonored by nonacceptance or nonpayment, notice of dishonor must be given to the drawer and to each indorser, and any drawer or indorser to whom such notice is not given is discharged. Cross References Notice to bankrupt, see section 1500.*Post*, p. 1319. Notice to partners, see section 1498.*Post*, p. 1319. Notice to persons jointly interested. see section 1499.*Post*, p. 1319. Notice to subsequent party, see section 1506.*Post*, p. 1320. Notice where person is dead, see section 1497.*Post*, p. 1319. When notice need not be given to drawer, see section 1513.*Post*, p. 1320. When notice need not be given to indorser, see section 1514.*Post*, p. 1321. Sec. 1489. By whom given.— By whom given.The notice may be given by or on behalf of the holder, or by or on behalf of any party to the instrument who might be compelled to pay it to the holder, and who upon taking it up would have a right to reimbursement from the party to whom the notice is given. Sec. 1490. Notice of dishonor.— Notice of dishonor, by agent.Notice of dishonor may be given by an agent either in his own name or in the name of any party entitled to give notice, whether that party be his principal or not. Cross Reference When agent may give notice, see section 1493. Sec. 1491. Effect of notice.— Effect of notice, by holder.Where notice is given by or on behalf of the holder, it inures for the benefit of all subsequent holders and all prior parties who have a right of recourse against the party to whom it is given. Sec. 1492. Effect where notice is given by party entitled thereto.— By party entitled to give.Where notice is given by or on behalf of a party entitled to give notice, it inures for the benefit of the holder and all parties subsequent to the party to whom notice is given. Sec. 1493. When agent may give notice.— When agent may give.Where the instrument has been dishonored in the hands of an agent, he may either himself give notice to the parties liable thereon or he may give notice to his 1319principal. If he gives notice to his principal, he must do so within the same time as if he were the holder, and the principal upon the receipt of such notice has himself the same time for giving notice as if the agent had been an independent holder. Cross Reference Notice given by agent, see section 1490.*Ante*, p. 1318. Sec. 1494. When notice sufficient.— When sufficient.A written notice need not be signed, and an insufficient written notice may be supplemented and validated by verbal communication. A misdescription of the instrument does not vitiate the notice unless the party to whom the notice is given is in fact misled thereby. Cross Reference Form of notice, see section 1495. Sec. 1495. Form of notice.— Form of.The notice may be in writing or merely oral and may be given in any terms which sufficiently identify the instrument, and indicate that it has been dishonored by nonacceptance or nonpayment. It may in all cases be given by delivering it personally or through the mails. Sec. 1496. To whom notice given.— To whom given.Notice of dishonor may be to whom given. given either to the party himself or to his agent in that behalf. Sec. 1497. Notice where party is dead.— Where party is dead.When any party is dead, and his death is known to the party giving notice, the notice must be given to a personal representative, if there be one, and if with reasonable diligence he can be found. If there be no personal representative, notice may be sent to the last residence or last place of business of the deceased. Sec. 1498. Notice to partners.— To partners.Where the parties to be notified are partners, notice to any one partner is notice to the firm, even though there has been a dissolution. Sec. 1499. Notice to persons jointly liable.— To persons jointly liable.Notice to joint parties who are not partners must be given to each of them, unless one of them has authority to receive such notice for the others. Sec. 1500. Notice to bankrupt.— To bankrupt.Where a party has been adjudged a bankrupt or an insolvent, or has made an assignment for the benefit of creditors, notice may be given either to the party himself or to his trustee or assignee. Sec. 1501. Time within which notice must be given.— Time limit on giving of.Notice may be given as soon as the instrument is dishonored; and unless delay is excused as hereinafter provided, must be given within*Ante*, p. 1307; *post*, p. 1329. the times fixed by chapters 66 to 69 of this code. Sec. 1502. Notice where parties reside in same place.— Where parties reside in same place.Where the person giving and the person to receive notice reside in the same place, notice must be given within the following times:
(1)If given at the place of business of the person to receive notice, it must be given before the close of business hours on the day following;
(2)If given at his residence, it must be given before the usual hours of rest on the day following;
(3)If sent by mail, it must be deposited in the post office in time to reach him in usual course on the day following. Sec. 1503. Notice where parties reside in different places.— Where reside in different places.Where the person giving and the person to receive notice reside in different places, the notice must be given within the following times:
(1)If sent by mail, it must be deposited in the post office in time to go by mail the day following the day of dishonor, or if 1320there be no mail at a convenient hour on that day, by the next mail thereafter;
(2)If given otherwise than through the post office, then within the time that notice would have been received in due course of mail, if it had been deposited in the post office within the time specified in the last subdivision. Sec. 1504. Notice deemed given.— Notice deemed given.Where notice of dishonor is duly addressed and deposited in the post office, the sender is deemed to nave given due notice, notwithstanding any miscarriage in the mails. Sec. 1505. Deposit in post office.— Deposit in post office.Notice is deemed to have been deposited in post office when deposited in any branch post office or in any letter box under the control of the Post Office Department. Sec. 1506. Notice to subsequent party.— Notice to subsequent party.Where a party receives notice of dishonor, he has, after the receipt of such notice, the same time for giving notice to antecedent parties that the holder has after the dishonor. Sec. 1507. Where notice may be sent.— Where notice may be sent.Where a party has added an address to his signature, notice of dishonor must be sent to that address; but if he has not given such address, then the notice must be sent as follows:
(1)Either to the post office nearest to his place of residence, or to the post office where he is accustomed to receive his letters; or
(2)If he live in one place, and have his place of business in another, notice may be sent to either place; or
(3)If he is sojourning in another place, notice may be sent to the place where he is sojourning. But where the notice is actually received by the party within the time specified in chapters 66 to 69 of this code, it will be sufficient, though not sent in accordance with the requirements of this section. Cross Reference Effect of miscarriage of mails, see section 1504. Sec. 1508. Waiver of notice.— Waiver of.Notice of dishonor may be waived, either before the time of giving notice has arrived, or after the omission to give due notice, and the waiver may be express or implied. Sec. 1509. Who is affected by waiver.— Who is affected by waiver.Where the waiver is embodied in the instrument itself, it is binding upon all parties; but where it is written above the signature of an indorser, it binds him only. Sec. 1510. Waiver of protest.— Waiver of protest.A waiver of protest, whether in the case of a foreign bill of exchange or other negotiable instrument, is deemed to be a waiver not only of formal protest, but also of presentment and notice of dishonor. Sec. 1511. Notice dispensed with.— Notice dispensed with.Notice of dishonor is dispensed with when, after the exercise of reasonable diligence, it can not be given to or does not reach the parties sought to be charged. Sec. 1512. Delay excused.— Delay excused.Delay in giving notice of dishonor is excused when the delay is caused by circumstances beyond the control of the holder, and not imputable to his default, misconduct, or negligence. When the cause of delay ceases to operate, notice must be given with reasonable diligence. Sec. 1513. When notice of dishonor is not required.— When notice of dishonor not required.Notice of dishonor is not required to be given to the drawer in either of the following cases:
(1)Where the drawer and drawee are the same person; 1321
(2)When the drawee is a fictitious person or a person not having capacity to contract;
(3)When the drawer is the person to whom the instrument is presented for payment;
(4)Where the drawer has no right to expect or require that the drawee or acceptor will honor the instrument;
(5)Where the drawer has countermanded payment. Sec. 1514. When not required to be given indorser.— When not required to be given indorser.Notice of dishonor is not required to be given to an indorser in either of the following cases:
(1)Where the drawee is a fictitious person or a person not having capacity to contract, and the indorser was aware of the fact at the time he indorsed the instrument;
(2)Where the indorser is the person to whom the instrument is presented for payment;
(3)Where the instrument was made or accepted for his accommodation. Sec. 1515. Notice of nonpayment where acceptance refused.— Notice of nonpayment where acceptance refused.Where due, notice of dishonor by nonacceptance has been given, notice of a subsequent dishonor by nonpayment is not necessary, unless in the meantime the instrument has been accepted. Sec. 1516. Effect of omission.— Effect of omission.An omission to give notice of dishonor by nonacceptance does not prejudice the rights of a holder in due course subsequent to the omission. Sec. 1517. Protest.— Protest.Where any negotiable instrument has been dishonored it may be protested for nonacceptance or nonpayment, as the case may be; but protest is not required except in the case of foreign bills of exchange. discharge of negotiable instrumentsDischarge of negotiable instruments. Sec. 1518. How discharged.— How discharged.A negotiable instrument is discharged—
(1)By payment in due course by or on behalf of the principal debtor;
(2)By payment in due course by the party accommodated, where the instrument is made or accepted for accommodation;
(3)By the intentional cancellation thereof by the holder;
(4)By any other act which will discharge a simple contract for the payment of money;
(5)When the principal debtor becomes the holder of the instrument at or after maturity in his own right. Sec. 1519. Persons secondarily liable discharged.— Persons secondarily liable discharged.A person secondarily liable on the instrument is discharged—
(1)By any act which discharges the instrument;
(2)By the intentional cancellation of his signature by the holder;
(3)By the discharge of a prior party;
(4)By a valid tender of payment made by a prior party;
(5)By a release of the principal debtor, unless the holder’s right of recourse against the party secondarily liable is expressly reserved;
(6)By any agreement binding upon the holder to extend the time of payment, or to postpone the holder’s right to enforce the instrument, unless made with the assent of the party secondarily liable, or unless the right of recourse against such party is expressly reserved. Sec. 1520. Right of party who discharged.— Right of party who discharged.Where the instrument is paid by a party secondarily liable thereon, it is not discharged; but the party so paying it is remitted to his former rights 1322as regards all prior parties, and he may strike out his own and all subsequent indorsements, and again negotiate the instrument, except—
(1)Where it is payable to the order of a third person, and has been paid by the drawer; and
(2)Where it was made or accepted for accommodation, and has been paid by the party accommodated. Sec. 1521. Renunciation by holder.— Renunciation by holder.The holder may expressly renounce his rights against any party to the instrument, before, at, or after its maturity. An absolute and unconditional renunciation of his rights against the principal debtor made at or after the maturity of the instrument discharges the instrument. But a renunciation does not affect the rights of a holder in due course without notice. A renunciation must be in writing, unless the instrument is delivered up to the person primarily liable thereon. Sec. 1522. Cancellation.— Cancellation.A cancellation made unintentionally, or under a mistake or without the authority of the holder, is inoperative; but where an instrument or any signature thereon appears to have been canceled the burden of proof lies on the party who alleges that the cancellation was made unintentionally, or under a mistake or without authority. Sec. 1523. Alteration.— Alteration.Where a negotiable instrument is materially altered without the assent of all parties liable thereon, it is avoided, except as against a party who has himself made, authorized or assented to the alteration, and subsequent indorsers. But when an instrument has been materially altered and is in the hands of a holder in due course, not a party to the alteration, he may enforce payment thereof according to its original tenor. Sec. 1524. Material alteration.— Material alteration.Any alteration which changes—
(1)The date;
(2)The sum payable, either for principal or interest;
(3)The time or place of payment;
(4)The number or the relations of the parties;
(5)The medium or currency in which payment is to be made; Or which adds a place of payment where no place of payment is specified, or any other change or addition which alters the effect of the instrument in any respect, is a material alteration. CHAPTER 67.— BILLS OF EXCHANGEBILLS OF EXCHANGE. *Ante*, p. 1307; *post*, p. 1329.Note.—Chapters 66 to 69 of this code comprise the Uniform Negotiable Instruments Act. Form and interpretation.form and interpretation Sec. 1525. Bill of exchange defined.— Defined.A bill of exchange is an unconditional order in writing addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money to order or to bearer. Sec. 1526. Not an assignment of funds.— Not an assignment of funds.A bill of itself does not operate as an assignment of the funds in the hands of the drawee available for the payment thereof, and the drawee is not liable on the bill unless and until he accepts the same. Sec. 1527. Addressed to more than one drawee.— Addressed to more than one drawee.A bill may be addressed to two or more drawees jointly, whether they are partners or not; but not to two or more drawees in the alternative or in succession. Sec. 1528. Inland and foreign bills.— Inland and foreign bills.An inland bill of exchange is a bill which is, or on its face purports to be, both drawn 1323and payable within the Canal Zone. Any other bill is a foreign bill. Unless the contrary appears on the face of the bill, the holder may treat it as an inland bill. Sec. 1529. Bill treated as promissory note.— Bill treated as promissory note.Where in a bill drawer and drawee are the same person, or where the drawee is a fictitious person, or a person not having capacity to contract, the holder may treat the instrument, at his option, either as a bill of exchange or a promissory note. Sec. 1530. Referee in case of need.— Referee in case of need.The drawer of a bill and any indorser may insert thereon the name of a person to whom the holder may resort in case of need; that is to say in case the bill is dishonored by nonacceptance or nonpayment. Such person is called the referee in case of need. It is in the option of the holder to resort to the referee in case of need or not as he may see fit. acceptance Sec. 1531. Acceptance.— Acceptance.The acceptance of a bill is the signification by the drawee of his assent to the order of the drawer. The acceptance must be in writing and signed by the drawee. It must not express that the drawee will perform his promise by any other means than the payment of money. Sec. 1532. Holder entitled to acceptance on face of bill.— Holder entitled to acceptance on face of bill.The holder of a bill presenting the same for acceptance may require that the acceptance be written on the bill and, if such request is refused, may treat the bill as dishonored. Sec. 1533. Acceptance by separate instrument.— Acceptance by separate instrument.Where an acceptance is written on a paper other than the bill itself, it does not bind the acceptor except in favor of a person to whom it is shown and who, on the faith thereof, receives the bill for value. Sec. 1534. Promise to accept.— Promise to accept.An unconditional promise in writing to accept a bill before it is drawn is deemed an actual acceptance in favor of every person who, upon the faith thereof, receives the bill for value. Sec. 1535. Time allowed drawee to accept.— Time allowed drawee to accept.The drawee is allowed twenty-four hours after presentment in which to decide whether or not he will accept the bill; but the acceptance, if given, dates as of the day of presentation. Sec. 1536. Liability of drawee retaining or destroying bill.— Liability of drawee retaining or destroying bill.Where a drawee to whom a bill is delivered for acceptance destroys the same, or refuses within twenty-four hours after such delivery, or within such other period as the holder may allow, to return the bill accepted or nonaccepted to the holder, he will be deemed to have accepted the same. Sec. 1537. Acceptance of incomplete bill.— Acceptance of incomplete bill.A bill may be accepted before it has been signed by the drawer, or while otherwise incomplete, or when it is overdue, or after it has been dishonored by a previous refusal to accept, or by nonpayment. But when a bill payable after sight is dishonored by nonacceptance and the drawee subsequently accepts it, the holder in the absence of any different agreement, is entitled to have the bill accepted as of the date of the first presentment. Sec. 1538. Kinds of acceptance.— Kinds of acceptance.An acceptance is either general or qualified. A general acceptance assents without qualification to the order of the drawer. A qualified acceptance in express terms varies the effect of the bill as drawn. Sec. 1539. Kinds of acceptance.— An acceptance to pay at a particular place is a general acceptance, unless it expressly states that the bill is to be paid there only and not elsewhere. 1324 Sec. 1540. Qualified acceptance.— Qualified acceptance.An acceptance is qualified which is—
(1)Conditional; that is to say, which makes payment by the acceptor dependent on the fulfillment of a condition therein stated;
(2)Partial; that is to say, an acceptance to pay part only of the amount for which the bill is drawn;
(3)Local; that is to say, an acceptance to pay only at a particular place;
(4)Qualified as to time;
(5)The acceptance of some one or more of the drawees, but not of all. Sec. 1541. Rights of parties as to qualified acceptances.— Rights of parties.The holder may refuse to take a qualified acceptance, and if he does not obtain an unqualified acceptance he may treat the bill as dishonored by nonacceptance. Where a qualified acceptance is taken the drawer and indorsers are discharged from liability on the bill, unless they have expressly or impliedly authorized the holder to take a qualified acceptance, or subsequently assent thereto. When the drawer or an indorser receives notice of a qualified acceptance, he must, within a reasonable time, express his dissent to the holder, or he will be deemed to have assented thereto. presentment for acceptance Sec. 1542. When presentment for acceptance must be made.— When presentment must be made.Presentment for acceptance must be made—
(1)Where the bill is payable after sight, or in any other case, where presentment for acceptance is necessary in order to fix the maturity of the instrument; or
(2)Where the bill expressly stipulates that it shall be presented for acceptance; or
(3)Where the bill is drawn payable elsewhere than at the residence or place of business of the drawee. In no other case is presentment for acceptance necessary in order to render any party to the bill liable. Cross Reference Presentment, when excused, see section 1547.*Post*, p. 1325. Sec. 1543. Time for presentment.— Time for.Except as herein otherwise provided, the holder of a bill which is required by section 1542 to be presented for acceptance must either present it for acceptance or negotiate it within a reasonable time. If he fails to do so, the drawer and all indorsers are discharged. Sec. 1544. To whom presentment for acceptance must be made.— To whom must be made.Presentment for acceptance must be made by or on behalf of the holder at a reasonable hour, on a business day and before the bill is overdue, to the drawee or some person, authorized to accept or refuse acceptance on his behalf; and—
(1)Where a bill is addressed to two or more drawees who are not partners, presentment must be made to them all, unless one has authority to accept or refuse acceptance for all, in which case presentment may be made to him only;
(2)Where the drawee is dead, presentment may be made to his personal representative;
(3)Where the drawee has been adjudged a bankrupt or an insolvent or has made an assignment for the benefit of creditors, presentment may be made to him or to his trustee or assignee. 1325 Sec. 1545. Presentment of bill of exchange.— Bill of exchange.A bill may be presented for acceptance on any day on which negotiable instruments may be presented for payment under the provisions*Post*, pp. 1327,1328. of sections 1471 and 1484. When Saturday is not otherwise a holiday, presentment for acceptance may be made before twelve o’clock noon, on that day. Sec. 1546. Presentment where time is insufficient.— Where time is insufficient.Where the holder of a bill drawn payable elsewhere than at the place of business or the residence of the drawee has not time with the exercise of reasonable diligence to present the bill for acceptance before presenting it for payment on the day that it fails due, the delay caused by presenting the bill for acceptance before presenting it for payment is excused and does not discharge the drawers and indorsers. Sec. 1547. When presentment is excused.— When excused.Presentment for when excused, acceptance is excused and a bill may be treated as dishonored by nonacceptance, in either of the following cases:
(1)Where the drawee is dead, or has absconded, or is a fictitious person, or a person not having capacity to contract by bill;
(2)Where, after the exercise of reasonable diligence, presentment can not be made;
(3)Where, although presentment has been irregular, acceptance has been refused on some other ground. Sec. 1548. Bill dishonored by nonacceptance.— Bill dishonored by nonacceptance.A bill is dishonored by nonacceptance—
(1)When it is duly presented for acceptance and such an acceptance as is prescribed by chapters 66 to 69 of this code is refused or can not be obtained; or*Ante*, p. 1307; *post*, p. 1329.
(2)When presentment for acceptance is excused and the bill is not accepted. Sec. 1549. Duty of holder where not accepted.— Duty of holder.Where a bill is duly presented for acceptance and is not accepted within the prescribed time the person presenting it must treat the bill as dishonored by nonacceptance or he loses the right of recourse against the drawer and indorsers. Sec. 1550. Rights of holder where bill not accepted.— Rights of holder where bill not accepted.When a bill is dishonored by nonacceptance, an immediate right of recourse against the drawers and indorsers accrues to the holder and no presentment for payment is necessary. protestProtest. Sec. 1551. In what cases protest necessary.— When necessary.Where a foreign bill appearing on its face to be such is dishonored by nonacceptance, it must be duly protested for nonacceptance, and where such a bill which has not previously been dishonored by nonacceptance is dishonored by nonpayment, it must be duly protested for nonpayment. If it is not so protested, the drawer and indorsers are discharged. Where a bill does not appear on its face to be a foreign bill, protest thereof in case of dishonor is unnecessary. Sec. 1552. How made.— How made.The protest must be annexed to the bill, or must contain a copy thereof, and must be under the hand and seal of the notary making it, and must specify—
(1)The time and place of presentment;
(2)The fact that presentment was made and the manner thereof;
(3)The cause or reason for protesting the bill;
(4)The demand made and the answer given, if any, or the fact that the drawee or acceptor could not be found. 1326 Sec. 1553. By whom made.— By whom.Protest may be made by—
(1)A notary public; or
(2)By any respectable resident of the place where the bill is dishonored, in the presence of two or more credible witnesses. Sec. 1554. When made.— When.When a bill is protested, such protest must be made on the day of its dishonor, unless delay is excused as herein provided. When a bill has been duly noted, the protest may be subsequently extended as of the date of the noting. Sec. 1555. Where made.— Where.A bill must be protested at the place where it is dishonored, except that when a bill draw payable at the place of business, or residence of some person other than the drawee, has been dishonored by nonacceptance, it must be protested for nonpayment at the place where it is expressed to be payable, and no further presentment for payment to, or demand on, the drawee is necessary. Sec. 1556. Protest both for nonacceptance and nonpayment.— Protest both for nonacceptance and nonpaymentA bill which has been protested for nonacceptance may be subsequently protested for nonpayment. Sec. 1557. Protest before maturity.— Before maturity.Where the acceptor has been adjudged a bankrupt or an insolvent, or has made an assignment for the benefit of creditors, before the bill matures, the holder may cause the bill to be protested for better security against the drawer and indorsers. Sec. 1558. When dispensed with.— When dispensed with.Protest is dispensed with by any circumstances which would dispense with notice of dishonor. Delay in noting or protesting is excused when delay is caused by circumstances beyond the control of the holder and not imputable to his default, misconduct or negligence. When the cause of delay ceases to operate, the bill must be noted or protested with reasonable diligence. Sec. 1559. When bill is lost and so forth.— Lost, etc., bills.When 3 bill is lost or destroyed or is wrongly detained from the person entitled to hold it, protest may be made on a copy or written particulars thereof. acceptance for honor Sec. 1560. Acceptance for honor.— Acceptance for honor.Where a bill of exchange has been protested for dishonor by nonacceptance or protested for better security, and is not overdue, any person not being a party already liable thereon may, with the consent of the holder, intervene and accept the bill supra protest for the honor of any party liable thereon, or for the honor of the person for whose account the bill is drawn. The acceptance for honor may be for the part only of the sum for which the bill is drawn; and where there has been an acceptance for honor for one party, there may be a further acceptance by a different person for the honor of another party. Sec. 1561. How made.— How made.An acceptance for honor supra protest must be in writing, and indicate that it is an acceptance for honor, and must be signed by the acceptor for honor. Sec. 1562. What deemed to be an acceptance for honor of the of the drawer.— What deemed to be an acceptance for honor of the drawer.Where an acceptance for honor does not expressly state for whose honor it is made, it is deemed to be an acceptance for the honor of the drawer. Sec. 1563. Liability of acceptor.— Liability of acceptorThe acceptor for honor is liable to the holder and to all parties to the bill subsequent to the party for whose honor he has accepted. Sec. 1564. Agreement of acceptor for honor.— Agreement of acceptor for honor.The acceptor for honor by such acceptance engages that he will on due presentment pay the bill according to the terms of his acceptance; provided, it 1327shall not have been paid by the drawee; and provided, also, that it shall have been duly presented for payment and protested for nonpayment and notice of dishonor given him. Sec. 1565. Bill payable after sight.— Bill payable after sight.Where a bill payable after sight is accepted for honor, its maturity is calculated from the date of the noting for nonacceptance and not from the date of the acceptance for honor. Sec. 1566. Protest.— Protest.Where a dishonored bill has been accepted for honor supra protest or contains a reference in case of need, it must be protested for nonpayment before it is presented for payment to the acceptor for honor or referee in case of need. Sec. 1567. Presentment to acceptor.— Presentment to acceptor.Presentment for payment to the acceptor for honor must be made as follows:
(1)If it is to be presented in the place where the protest for nonpayment was made, it must be presented not later than the day following its maturity.
(2)If it is to be presented in some other place than the place where it was protested, then it must be forwarded *Ante*, p. 1319.within the time specified in section 1503. Sec. 1568. Delay in presentment.— Delay in presentment.*Ante*, p. 1317.The provisions of section 1480 apply where there is delay in making presentment to the acceptor for honor or referee in case of need. Sec. 1569. Dishonor of bill by acceptor for honor.— Dishonor of bill by acceptor for honor.When the bill is dishonored by the acceptor for honor it must be protested for nonpayment by him. payment for honor Sec. 1570. Payment for honor.— Payment for honor.Where a bill has been protested for nonpayment, any person may intervene and pay it supra protest for the honor of any person liable thereon or for the honor of the person for whose account it was drawn. Sec. 1571. Payment for honor, how made.— How made.The payment for honor supra protest in order to operate as such and not as a mere voluntary payment must be attested by a notarial act of honor which may be appended to the protest or form an extension to it. Sec. 1572. Declaration.— Declaration.The notarial act of honor must be founded on a declaration made by the payer for honor or by his agent in that behalf declaring his intention to pay the bill for honor and for whose honor he pays. Sec. 1573. Preference of parties.— Preference of parties.Where two or more persons offer to pay a bill for the honor of different parties, the person whose payment will discharge most parties to the bill is to be given the preference. Sec. 1574. Subsequent parties discharged.— Subsequent parties discharged.Where a bill has been paid for honor, all parties subsequent to the party for whose honor it is paid are discharged, but the payer for honor is subrogated for, and succeeds to, both the rights and duties of the holder as regards the party for whose honor he pays and all parties liable to the latter. Sec. 1575. Right of recourse lost.— Right of recourse lost.Where the holder of a bill refuses to receive payment supra protest, he loses his right of recourse against any party who would have been discharged by such payment. Sec. 1576. Right of payer for honor.— Right of payee for honor.The payer for honor, on paying to the holder the amount of the bill and the notarial expenses incidental to its dishonor, is entitled to receive both the bill itself and the protest. 1328 Bills in a set.bills in a set Sec. 1577. Bills in sets one bill.— Constitutes one bill.Where a bill is drawn in a set, each part of the set being numbered and containing a reference to the other parts, the whole of the parts constitutes one bill. Sec. 1578. Where different parts are negotiated.— Where different parts are negotiated.Where two or more parts of a set are negotiated to different holders in due course, the holder whose title first accrues is, as between such holders, the true owner of the bill. But nothing in this section affects the rights of a person who in due course accepts or pays the part first presented to him. Sec. 1579. Liability of holder.— Liability of holder.Where the holder of a set indorses two or more parts to different persons he is liable on every such part, and every indorser subsequent to him is liable on the part he has himself indorsed, as if such parts were separate bills. Sec. 1580. Acceptance.— Acceptance.The acceptance may be written on any part and it must be written on one part only. If the drawee accepts more than one part, and such accepted parts are negotiated to different holders in due course, he is liable on every such part as if it were a separate bill. Sec. 1581. Payment by acceptor.— Payment by acceptor.When the acceptor of a bill drawn in a set pays it without requiring the part being his acceptance to be delivered up to him, and that part at maturity is outstanding in the hands of a holder in due course, he is liable to the holder thereon. Sec. 1582. Whole bill discharged.— Whole bill discharged.Except as herein otherwise provided, where any one part of a bill drawn in a set is discharged by payment or otherwise the whole bill is discharged. CHAPTER 68.— PROMISSORY NOTES AND CHECKSPROMISSORY NOTES AND CHECKS. *Ante*, p. 1307; post, p. 1329.Note.—Chapters 66 to 69 of this code comprise the Uniform Negotiable Instruments Act. Sec. 1583. Promissory note defined.—Definitions.Promissory note.A negotiable promissory note within the meaning of chapters 66 to 69 of this code is an unconditional promise in writing made by one person to another, signed by the maker, engaging to pay on demand, or at a fixed or determinable future time, a sum certain in money to order or to bearer, but the negotiability of a promissory note otherwise negotiable in form, secured by a mortgage or deed of trust upon real or personal property, shall not be affected or abridged by reason of a statement therein that it is so secured, nor by reason of the fact that said instrument is so secured, nor by any conditions contained in the mortgage or deed of trust securing the same. Where a note is drawn to the maker’s own order it is not complete until indorsed by him. Sec. 1584. Check defined.—Check.A check is a bill of exchange drawn on a bank payable on demand. Except as herein otherwise provided, the provisions of chapters 66 to 69 of this code applicable to a bill of exchange payable on demand apply to a check. Sec. 1585. Time for presenting check.—Time for presenting.A check must be presented for payment within a reasonable time after its issue or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay. Sec. 1586. Certified check.—Certified check.Where a check is certified by the bank on which it is drawn, the certification is equivalent to an acceptance. 1329 Sec. 1587. Effect of acceptance or certification.— Where theEffect of acceptance or certification. holder of a check procures it to be accepted or certified the drawer and all indorsers are discharged from liability thereon. Sec. 1588. When check operates as assignment.— A check ofWhen check operates as assignment. itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder, unless and until it accepts or certifies the check. CHAPTER 69.— GENERAL PROVISIONS RESPECTING NEGOTIABLE INSTRUMENTSGENERAL PROVISIONS RESPECTING NEGOTIABLE INSTRUMENTS. Note.—Chapters 66 to 69 of this code comprise the Uniform Negotiable*Ante*, pp. 1307–1329. Instruments Act. Sec. 1589. Definitions.— In chapters 66 to 69 of this code, unlessDefinitions. the context other requires— “Acceptance” means an acceptance completed by delivery or notification. “Action” includes counterclaim and set-off. “Bank” includes any person or association of persons carrying on the business of banking, whether incorporated or not. “Bearer” means the person in possession of a bill or note which is payable to bearer. “Bill” means bill of exchange, and “note” means negotiable promissory note. “Delivery” means transfer of possession, actual or constructive, from one person to another. “Holder” means the payee or indorsee of a bill or note, who is in possession of it, or the bearer thereof. “Indorsement” means an indorsement completed by delivery. “Instrument” means negotiable instrument. “Issue” means the first delivery of the instrument complete in form, to a person who takes it as a holder. “Person” includes a body of persons, whether incorporated or not. “Value” means valuable consideration. “Written” includes printed; and “writing” includes print. Sec. 1590. Person primarily liable on instrument.— The personPerson primarily liable on instrument. “primarily” liable on an instrument is the person who by the terms of the instrument is absolutely required to pay the same. All other parties are “secondarily” liable. Sec. 1591. Reasonable time, what constitutes.— In determiningReasonable time. what is a “reasonable time” or an “unreasonable time,” regard is to be had to the nature of the instrument, the usage of trade or business (if any) with respect to such instruments, and the facts of the particular case. Sec. 1592. Time, how computed when last day falls on holiday.—Time computation, last day falling on holiday.Where the day, or the last day, for doing any act herein required or permitted to be done falls on Sunday or on a holiday, the act may be done on the next succeeding secular or business day. Sec. 1593. Application of chapters 66 to 69.— The provisions ofApplication of Chapters 66 to 69.*Ante*, pp. 1307–1329. chapters 66 to 69 of this code do not apply to negotiable instruments made and delivered prior to the taking effect hereof. In any case not provided for in said chapters the rules of the law merchant shall govern.1330 CHAPTER 70.— GENERAL PROVISIONS AFFECTING CHAPTERS 34 TO 69GENERAL PROVISIONS AFFECTING CHAPTERS 34 TO 69. Sec. 1594. Parties may waive provisions of code.—Parties may waive certain provisions of Code.*Ante*, pp. 1204–1329.Except where it is otherwise declared, the provisions of chapters 34 to 69 of this code, in respect to the rights and obligations of parties to contracts, are subordinate to the intention of the parties, when ascertained in the manner prescribed by the chapter on the interpretation of contracts ; and the benefit thereof may be waived by any party entitled thereto, unless such waiver would be against public policy. Cross Reference*Post*, p. 1197.Interpretation of contracts, see sections 546 et seq. CHAPTER 71.— RELIEF IN GENERALRELIEF IN GENERAL. Sec. 1595. Species of relief.—Species of.As a general rule compensation is a relief or remedy provided by the law of the Canal Zone for the violation of private rights, and the means of securing their observance; and specific and preventive relief may be given in no other cases than those specified in this chapter and chapters 72 and 73 of this code. Cross References*Post*, p. 1338.Injunction, see sections 1652 et seq. Person suffering detriment may recover damages, see section 1597. *Post*, p. 1335.Specific performance, see sections 1634 et seq. Sec. 1596. Relief in case of forfeiture.—In case of forfeiture.Whenever, by the terms of an obligation, a party thereto incurs a forfeiture, or a loss in the nature of a forfeiture, by reason of his failure to comply with its provisions, he may be relieved therefrom, upon making full compensation to the other party, except in case of a grossly negligent, willful, or fraudulent breach of duty. CHAPTER 72.— COMPENSATORY RELIEFCOMPENSATORY RELIEF. damages in general general principles Sec. 1597. Person suffering detriment may recover damages.—Who may recover.Every person who suffers detriment from the unlawful act or omission of another, may recover from the person in fault a compensation therefor in money, which is called damages. Cross References*Post*, p. 1334.Damages are exclusive of exemplary damages and interest, except where those are expressly mentioned, see section 1624. *Post*, p. 1332.Damages for breach of contract, see sections 1605 et seq. *Post*, p. 1333.Damages for torts, see sections 1615 et seq. *Post*, p. 1334.Damages must be reasonable, see section 1626. *Post*, p. 1331.Exemplary damages, see section 1604. *Post*, p. 1331.Interest on damages, see sections 1600 and 1601. *Post*, p. 1334.Limitation on amount of damages, see section 1625. *Post*, p. 1334.Nominal damages, see section 1627. Sec. 1598. Detriment, what.—“Detriment,” defined.Detriment is a loss or harm suffered in person or property. 1331 Sec. 1599. Injuries resulting or probable after suit brought.—Injuries resulting or probable after suit brought.Damages may be awarded, in a judicial proceeding, for detriment resulting after the commencement thereof or certain to result in the future. interest as damagesInterest as damages. Sec. 1600. Person entitled to recover damages may recover interest thereon.—Recovery of.Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day, except during such time as the debtor is prevented by law, or by the act of the creditor, from paying the debt. Cross References Damages prescribed in code are exclusive of interest, see section 1624. *Post*, p. 1334. Interest as damages, see section 666. *Ante*, p. 1220. Interest as damages on breach of contract, see section 1607. *Post*, p. 1332. Interest in actions for conversion, see section 1616. *Post*, p. 1333. Sec. 1601. In actions other than contract.— In an actionActions other than contract. for the breach of an obligation not arising from contract, and in every case of oppression, fraud, or malice, interest may be given, in the discretion of the court or jury. Cross Reference Interest in trover and conversion, see section 1616.*Post*, p. 1333. Sec. 1602. Limit of rate by contract.— Any legal rate of interestLimit of rate by contract. stipulated by a contract remains chargeable after a breach thereof, as before, until the contract is superseded by a judgment or other new obligation. Sec. 1603. Acceptance of principal waives claim to interest.—Acceptance of principal waives claim to interest.Accepting payment of the whole principal, as such, waives all claim to interest. exemplary damagesExemplary damages. Sec. 1604. Exemplary damages, in what cases allowed.— In anWhen allowed. action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud, or malice, express or implied, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. Cross References Damages for wrongs, generally, see sections 1615 et seq. *Post*, p. 1333. Damages prescribed in code exclusive of exemplary damages, see section 1624. *Post*, p. 1334. Infants and insane persons, liability for exemplary damages, see section 27. *Ante*, p. 1126 Injuries to animals, exemplary damages for, see section 1620. *Post*, p. 1333. measure of damages damages for breach of contract Cross References Breach of warranty, see section 665. *Ante*, p. 1219. Measure of damages for breach of contracts to sell and sales of personal property, see sections 597 to 673. *Ante*, p. 1204. 1332 Sec. 1605. Measure of damages for breach of contract.—Measure of damages, breach of contract.For the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom. Cross References*Ante*, p. 1201.Contract fixing damages for breach in advance, effect of, see section 575. *Post*, p. 1334.Damages limited to amount one would gain by performance, see section 1625. *Post*, p. 1334.Damages to be reasonable, see section 1626. *Post*, p. 1334.Nominal damages, see section 1627. Sec. 1606. Damages must be certain.—Damages must be certain.No damages can be recovered for a breach of contract which are not clearly ascertainable in both their nature and origin. Sec. 1607. Breach of contract to pay liquidated sum.—Breach of contract to pay liquidated sum.The detriment caused by the breach of an obligation to pay money only, is deemed to be the amount due by the terms of the obligation, with interest thereon. Sec. 1609. Breach of carrier’s obligation to receive goods, and so forth.—Breach of carrier’s obligation to receive goods, etc.The detriment caused by the breach of a carrier’s obligation to accept freight, messages, or passengers, is deemed to be the difference between the amount which he had a right to charge for the carriage and the amount which it would be necessary to pay for the same service when it ought to be performed. Cross Reference*Ante*, p. 1255.Obligation to receive freight, see section 957. Sec. 1610. Breach of carrier’s obligation to deliver.—To deliver.The detriment caused by the breach of a carrier’s obligation to deliver freight, where he has not converted it to his own use, is deemed to be the value thereof at the place and on the day at which it should have been delivered, deducting the freightage to which he would have been entitled if he had completed the delivery. Cross References*Ante*, p. 1254.Delivery of property by carrier, see section 900. *Ante*, p. 1216.Stoppage in transitu, see sections 653 et seq. Sec. 1611. Carrier’s delay.—Carrier’s delay.The detriment caused by a carrier’s delay in the delivery of freight, is deemed to be the depreciation in the intrinsic value of the freight during the delay, and also the depreciation, if any, in the market value thereof, otherwise than by reason of a depreciation in its intrinsic value, at the place where it ought to have been delivered, and between the day at which it ought to have been delivered, and the day of its actual delivery. Cross References*Ante*, p. 1257.Carrier’s liability for delay, see section 977. *Ante*, pp. 1253, 1257.Delay in carriage, liability for, see sections 895 and 977. Sec. 1612. Breach of warranty of authority.—Breach of warrant; of authority.The detriment caused by the breach of a warranty of an agent’s authority, is deemed to be the amount which could have been recovered and collected from his principal if the warranty had been complied with, and the reasonable expenses of legal proceedings taken, in good faith, to enforce the act of the agent against his principal. 1333 Cross Reference Warranty of authority by one assuming to act as agent, see section 1073. *Ante*, p. 1268. Sec. 1613. Breach of promise of marriage.— The damages forBreach of promise of marriage. the breach of a promise of marriage rest in the sound discretion of the court or jury. Sec. 1614. Liability for nonpayment of check.— No bank shallLiability for nonpayment of check. be liable to a depositor because of the nonpayment through mistake or error, and without malice, of a check which should have been paid unless the depositor shall allege and prove actual damage by reason of such nonpayment and in such event the liability shall not exceed the amount of damage so proved. damages for wrongsDamages for wrongs. Sec. 1615. Breach of obligation other than contract.— ForBreach of obligation other than contract. the breach of an obligation not arising from contract the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not. Cross Reference Diminution of damages in proportion to want of care of persons injured, see section 595. *Ante*, p. 1203. Sec. 1616. Conversion of personal property.— The detrimentConversion of personal property. caused by the wrongful conversion of personal property is presumed to be: First. The value of the property at the time of the conversion, with the interest from that time, or where the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the judgment, without interest, at the option of the injured party; and Second. A fair compensation for the time and money properly expended in pursuit of the property. Sec. 1617. Same.— The presumption declared by section 1616Presumption of detriment. can not be repelled in favor of one whose possession was wrongful from the beginning, by his subsequent application of the property to the benefit of the owner, without his consent. Sec. 1618. Damages of lienor.— One having a mere lien on personalDamages of lienor. property, can not recover greater damages for its conversion, from one having a right thereto superior to his, after his lien is discharged, than the amount secured by the lien, and the compensation allowed by section 1616 for loss of time and expenses. Cross References Damages for conversion of personalty, generally, see section 1616. Levy on mortgaged chattel, see section 1362. *Ante*, p. 1303. Sec. 1619. Seduction.— The damages for seduction rest in theSeduction. sound discretion of the court or jury. Sec. 1620. Injuries to animals.— For wrongful injuries to animalsInjuries to animals. being subjects of property, committed willfully or by gross negligence, in disregard of humanity, exemplary damages may be given. Cross Reference Exemplary damages, generally, see section 1604. *Ante*, p. 1331. 1334 general provisionsGeneral provisions. Sec. 1622. Property of peculiar value.—Property of peculia value.Where certain property has a peculiar value to a person recovering damages for deprivation thereof, or injury thereto, that may be deemed to be its value against one who had notice thereof before incurring a liability to damages in respect thereof, or against a willful wrongdoer. Sec. 1623. Value of thing in action.—Value of thing in action.For the purpose of estimating damages, the value of an instrument in writing is presumed to be equal to that of the property to which it entitles its owner. Sec. 1624. Damages allowed in this subchapter, exclusive of others.—Damages allowed in this subchapter, exclusive of others.*Ante*, p. 1332.The damages prescribed by sections 1605 to 1627 are exclusive of exemplary damages and interest, except where those are expressly mentioned. Cross References*Ante*, p. 1331.Exemplary damages, see section 1604. *Ante*, pp. 1220, 1331.Interest, see sections 666 and 1600 to 1603. Sec. 1625. Limitation of damages.—Limitation of damages.*Ante*, p. 1332.Notwithstanding the provisions of sections 1605 to 1627, no person can recover a greater amount in damages for the breach of an obligation than he could have gained by the full performance thereof on both sides, except in *Ante*, p. 1333.the cases specified in section 1604 on exemplary damages and in sections 1613, 1619, and 1620. Cross Reference*Ante*, p. 1331.Exemplary damages, see section 1604. Sec. 1626. Damages to be reasonable.—To be reasonable.Damages must, in all cases, be reasonable, and where an obligation of any kind appears to create a right to unconscionable and grossly oppressive damages, contrary to substantial justice, no more than reasonable damages can be recovered. Cross Reference*Ante*, p. 1201.Liquidated damages and penalty, see sections 574 and 575. Sec. 1627. Nominal damages.—Nominal damages.When a breach of duty has caused no appreciable detriment to the party affected, he may yet recover nominal damages. CHAPTER 73.— SPECIFIC AND PREVENTIVE RELIEFSPECIFIC AND PREVENTIVE RELIEF. general principlesGeneral principles. Sec. 1628. Specific relief, and so forth, when allowed.—Specific relief, when allowed.Specific or preventive relief may be given as provided by the laws of the Canal Zone. Cross References*Post*, p. 1337.Cancellation of instruments, see sections 1648 et seq. *Post*, p. 1338.Injunctions, see sections 1652 et seq. *Post*, p. 1335.Possession of personal property, see sections 1632 et seq. *Ante*, p. 1201; post p. 1337.Rescission of contracts, see sections 580 et seq. and 1645 et seq. *Post*, p. 1336.Revision of contracts, see sections 1641 et seq. *Post*, p. 1335.Specific performance of obligation, see sections 1634 et seq. Sec. 1629. Specific relief, how given.—How given. Specific relief is given— 1. By taking possession of a thing and delivering it to a claimant; 2. By compelling a party himself to do that which ought to be done; or 1335 3. By declaring and determining the rights of parties, otherwise than by an award of damages. Sec. 1630. Preventive relief, how given.— Preventive relief isPreventive relief, how given. given by prohibiting a party from doing that which ought not to be done. Cross Reference Preventive relief, generally, see sections 1652 et seq. *Post*, p. 1338. Sec. 1631. Not to enforce penalty, and so forth.— Neither specificNot granted to enforce penalty, etc. nor preventive relief can be granted to enforce a penal law, except in a case of nuisance, nor to enforce a penalty or forfeiture in any case. specific reliefSpecific relief. possession of personal propertyPossession of personal property. Sec. 1632. Judgment for delivery.— A person entitled to the immediateJudgment for delivery. possession of specific personal property may recover the same in the manner provided by the Code of Civil Procedure. Sec. 1633. Specific delivery.— Any person having the possessionSpecific delivery. or control of a particular article of personal property, of which he is not the owner, may be compelled specifically to deliver it to the person entitled to its immediate possession. specific performance of obligationsSpecific performance of obligations. Cross Reference Specific performance of contract to deliver specific or ascertained goods, see section 664. *Ante*, p. 1219. Sec. 1634. Specific performance.— Except as otherwise providedWhen granted. in sections 1635 to 1640, the specific performance of an obligation may be compelled. Cross References Specifically enforcing revised contract, see section 1644. *Post*, p. 1337. Specific performance, see sections 1638 and 1640. *Post*, p. 1336. Sec. 1635. No remedy unless mutual.— Neither partyMutuality of remedy. to an obligation can be compelled specifically to perform it, unless the other party thereto has performed, or is compellable specifically to perform, everything to which the former is entitled under the same obligation, either completely or nearly so, together with full compensation for any want of entire performance. Cross Reference Performance by parties seeking execution, compare with section 1640. *Post*, p. 1336. Sec. 1636. Contract signed by one party only, may be enforce d by other.—Contract signed by one party only, may be enforced by other.A party who has signed a written contract may be compelled specifically to perform it, though the other party has not signed it, if the latter has performed, or offers to perform it on his part, and the case is otherwise proper for enforcing specific performance. Sec. 1637. Liquidation of damages not a bar to specific performance.—Liquidation of damages not a bar to specific performance.A contract otherwise proper to be specifically enforced, may be thus enforced, though a penalty is imposed, or the damages are liquidated for its breach, and the party in default is willing to pay the same. 1336 Sec. 1638. What cannot be specific ally enforced.—Obligations not specifically enforceable. The following obligations can not be specifically enforced: 1. An obligation to render personal service; 2. An obligation to employ another in personal service; 3. An agreement to submit a controversy to arbitration; 4. An agreement to perform an act which the party has not power lawfully to perform when required to do so; 5. An agreement to procure the act or consent of the wife of the contracting party, or of any other third person; or 6. An agreement, the terms of which are not sufficiently certain to make the precise act which is to be done clearly ascertainable. Cross Reference What parties can not have specific performance, see section 1640. Sec. 1639. What parties can no t be compelled to perform.—What parties can not be compelled to perform. Specific performance can not be enforced against a party to a contract in any of the following cases: 1. If he has not received an adequate consideration for the contract; 2. If it is not, as to him, just and reasonable; 3. If his assent was obtained by the misrepresentation, concealment, circumvention, or unfair practices of any party to whom performance would become due under the contract, or by any promise of such party which has not been substantially fulfilled; or 4. If his assent was given under the influence of mistake, misapprehension, or surprise, except that where the contract provides for compensation in case of mistake, a mistake within the scope of such provision may be compensated for, and the contract specifically enforced in other respects, if proper to be so enforced. Sec. 1640. What parties can not have specific performance in their favor.—What parties can not have specific performance in their favor.Specific performance can not be enforced in favor of a party who has not fully and fairly performed all the conditions precedent on his part to the obligation of the other party, except where his failure to perform is only partial, and either entirely immaterial, or capable of being fully compensated, in which case specific performance may be compelled, upon full compensation being made for the default. Cross Reference What obligations can not be specifically enforced, see section 1638. revision of contractsRevision of contracts. Sec. 1641. When contract may be revised.—What may be revised.When, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved, so as to express that intention, so far as it can be done without prejudice to rights acquired by third persons, in good faith and for value. Cross References*Ante*, p. 1198.Contract disregarded where not expressing intent through fraud or mistake, see section 551. *Post*, p. 1337.Revised to express intention, see section 1643. Sec. 1642. Presumption as to intent of parties.—Presumption as to intent of parties.For the purpose of revising a contract, it must be presumed that all the parties thereto intended to make an equitable and conscientious agreement. 1337 Sec. 1643. Principles of revision.— In revising a written instrument,Principles of revision. the court may inquire what the instrument was intended to mean, and what were intended to be its legal consequences, and is not confined to the inquiry what the language of the instrument was intended to be. Sec. 1644. Enforcement of revised contract.— A contract may beEnforcement of revised contract. first revised and then specifically enforced. rescission of contractsRescission of contracts. Sec. 1645. When rescission may be adjudged.— The rescission ofWhen rescission may be adjudged. a written contract may be adjudged, on the application of a party aggrieved: 1. In any of the cases mentioned in section 581; or 2. Where the contract is unlawful, for causes not apparent upon its face, and the parties were not equally in fault; or 3. When the public interest will be prejudiced by permitting it to stand. Cross References Cancellation of instruments, see sections 1648 et seq. Rescission of contracts by party thereto, see section 581. *Ante*, p. 1201. Rescission, how affected, see section 583. *Ante*, p. 1202. Sec. 1646. Rescission for mistake.— Rescission can not be adjudgedRescission for mistake. for mere mistake, unless the party against whom it is adjudged can be restored to substantially the same position as if the contract had not been made. Cross References Mistake, see sections 506 et seq. *Ante*, p. 1193. Placing party in statu quo, see section 583. *Ante*, p. 1202. Sec. 1647. Court may require party rescinding to do equity.—Court may require party rescinding to do equity.On adjudging the rescission of a contract, the court may require the party to whom such relief is granted to make any compensation to the other which justice may require. cancellation of instrumentsCancellation of instruments. Sec. 1648. When cancellation may be ordered.— A writtenWhen may be ordered. instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled. Cross References Cancellation and alteration of instruments by parties thereto, see sections 584 et seq. *Ante*, p. 1202. Rescission of contracts, see sections 580 et seq. and 1645 et seq. *Ante*, p. 1201. Sec. 1649. Instruments obviously void.— An instrument, the invalidityInstruments obviously void. of which is apparent upon its face or upon the face of another instrument which is necessary to the use of the former in evidence, is not to be deemed capable of causing injury, within the provisions of section 1648. Sec. 1650. Cancellation in part.— Where an instrument is evidenceCancellation in part. of different rights or obligations, it may be canceled in part, and allowed to stand for the residue. 1338 Sec. 1651. Reissuance, and so forth, of lost private documents or instruments.—Reissuance, etc., of lost private documents, etc.An action may be maintained by any person interested in any private document or instrument in writing, which has been lost, destroyed, or damaged by conflagration or other public calamity, to prove, establish, compel the reissuance, reexecution, and reacknowledgment of such document or instrument. If such document or instrument be a negotiable instrument, the court must compel the person in whose favor it is drawn to give a bond executed by himself and two sufficient sureties to indemnify the person reissuing, reexecuting, or reacknowledging the same against any lawful claim thereon. preventive reliefPreventive relief. Sec. 1652. Preventive relief, how granted.—How granted.Preventive relief is granted by injunction, preliminary or final. Sec. 1653. Injunctions regulated by code civil procedure.—Injunctions regulated by Code Civil Procedure.Injunctions are regulated by the Code of Civil Procedure. CHAPTER 74.— SPECIAL RELATIONS OF DEBTOR AND CREDITORSPECIAL RELATIONS OF DEBTOR AND CREDITOR. general principlesGeneral principles. Sec. 1654. Who is a debtor.—Who is a debtor.A debtor, within the meaning of this chapter, is one who, by reason of an existing obligation, is or may become liable to pay money to another, whether such liability is certain or contingent. Sec. 1655. Who is a creditor.—Who is a creditor.A creditor, within the meaning of this chapter, is one in whose favor an obligation 11 So in original. exists, by reason of which he is, or may become, entitled to the payment of money. Sec. 1656. Contracts of debtor are valid.—Contracts of debtor are valid.In the absence of fraud, every contract of a debtor is valid against all his creditors, existing or subsequent, who have not acquired a lien on the property affected by such contract. Sec. 1657. Payments in preference.Payments in preference.— A debtor may pay one creditor in preference to another, or may give to one creditor security for the payment of his demand in preference to another. Cross Reference Preferring creditor, see section 1670 (1). *Post*, p. 1341. Sec. 1658. Relative rights of different creditors.—Relative rights of different creditors.Where a creditor is entitled to resort to each of several funds for the satisfaction of his claim, and another person has an interest in, or is entitled as a creditor to resort to some, but not all of them, the latter may require the former to seek satisfaction from those funds to which the latter has no such claim, so far as it can be done without impairing the right of the former to complete satisfaction, and without doing injustice to third persons. Cross Reference*Ante*, p. 1298.Order of resort to different funds, see section 1325. fraudulent instruments and transfersFraudulent instruments and transfers. Sec. 1659. Transfers, etc., within tent to defraud creditors.—Transfers, etc., with intent to defraud creditors.Every transfer of property or charge thereon made, every obligation incurred, and every judicial proceeding taken, with intent to delay or defraud any creditor or other person of his demands, is void against all ceditors 11 So in original. of the debtor, and their successors in interest, 1339and against any person upon whom the estate of the debtor devolves in trust for the benefit of others than the debtor. Sec. 1660. Transfers presumed fraudulent.— Every transferTransfers presumed fraudulent. of personal property, other than a thing in action, or a ship of cargo at sea or in a foreign port, and every lien thereon, other than a mortgage, when allowed by law, and a contract of bottomry or respondentia, is conclusively presumed if made by a person having at the time the possession or control of the property, and not accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things transferred, to be fraudulent, and therefore void, against those who are his creditors while he remains in possession, and the successors in interest of such creditors, and against any persons on whom his estate devolves in trust for the benefit of others than himself, and against purchasers or encumbrancers in good faith subsequent to the transfer: *Provided*, *however*,*Proviso*.When not applicable. That the provisions of this section shall not apply or extend to any sale, transfer, assignment, or mortgage made under the direction or order of a court of competent jurisdiction or by any executor, administrator, guardian, receiver, or other officer or person acting in the regular and proper discharge of official duty or in the discharge of any trust imposed upon him by law, nor to any transfer or assignment, statutory or otherwise, made for the benefit of creditors, generally, nor to any sale, transfer, assignment, or mortgage of any property exempt from execution. Cross Reference Chattel mortgage, when void as to creditors and purchasers, see section 1356. *Ante*, p. 1302. Sec. 1661. Creditor’s right must be judicially ascertained.— ACreditor’s right must be judicially ascertained. creditor can avoid the act or obligation of his debtor for fraud only where the fraud obstructs the enforcement, by legal process, of his right to take the property affected by the transfer or obligation. assignments for benefit of creditorsAssignment for benefit of creditors. Sec. 1662. When debtor may execute assignment.— An insolventWhen debtor may execute. debtor may in good faith execute an assignment of property in trust for the satisfaction of his creditors, in conformity to the provisions of this subchapter; subject, however, to the provisions of this code relative to trusts and fraudulent transfers, and to the restrictions imposed by law upon assignments by special partnerships, or by other specific classes or persons. Cross Reference Partner can not assign, see section 1103 (1). *Ante*, p. 1272. Sec. 1663. Form of assignment.— Every such assignment shallForm of. contain a list of the names of the creditors of the assignor, and their places of residence and amounts of their respective demands, and the amounts and nature of any security therefor; and shall, subject to the other provisions of this subchapter, be made to the marshal of the Canal Zone. Cross Reference Form of assignment, see section 1671. *Post*, p. 1341. Sec. 1664. Custody of property; creditors’ meeting and notice thereof; election of assignee.—Custody of property. The marshal shall forthwith take possession of all the property so assigned to him, and keep the same till delivered by him, as hereinafter provided. When the assignment has been made, as hereinbefore provided, the marshal shall 1340immediately, by mail, notify the creditors named in the assignment, Creditors’ meeting.at their places of residence as given therein, to meet at his office on a day and hour to be appointed by him, not less than eight or more than ten days from the date of the delivery of the assignment to him, for the purpose of electing one or more assignees, as they may determine, in the place and stead of the said marshal in the premises. Notice.He shall also publish a notice of such meeting, and the purpose thereof, at least once before such meeting, in some newspaper of general circulation in the Canal Zone. The notice so to be mailed shall also contain a statement of the amount of the demand of the creditor, and the amount and nature of any security therefor, as set forth in the assignment; and if any creditor shall not find the amount of his claim to be correctly so stated, he may file with said marshal, at or before such meeting, a statement, under oath, of his demand, and such statement shall, for the purpose of voting as hereinafter provided, be accepted by said marshal as correct; and when no such statement is filed, the statement of amount as set forth in the assignment shall be accepted by the marshal as correct. No creditor having a mortgage or pledge of property of the debtor, or lien thereon, for securing the payment of a debt owing to him from the debtor, shall be allowed to vote any part of his claim at such meeting of creditors, unless he shall have first conveyed, released, or delivered up his said security to said marshal for the benefit of all creditors of said assignor. At such meeting the marshal shall preside, and a majority in amount of demands present or represented by proxy shall control all questions and decisions. The creditors may adjourn such meeting from time to time, and may vote on all questions either in person or by proxy signed and acknowledged before any officer authorized to take acknowledgments, and filed with the marshal. Election of assignee.At such a meeting, or any adjournment thereof, the creditors may elect one or more assignees from their own number, in the place and stead of the marshal, and the person or persons so elected shall afterwards be the assignee or assignees under the provisions of this subchapter; and the marshal, by transfer in writing, acknowledged as *Post*, p. 1341.required by section 1671, shall at once assign to such elected assignee or assignees, upon the trusts in this subchapter provided, all the property so assigned to him, and deliver possession thereof. All recitals in such assignment by said marshal of notices of such meeting, and the holding thereof, and of the due election of such assignee or assignees, shall be prima facie proof of the facts recited. Sec. 1665. Marshal’s fees.—Marshal’s fees.The marshal shall, before the delivery of such assignment, be paid the expenses incurred by him, and fees in such amount as would by law be collectible if the property assigned had been levied upon and safely kept under attachment. Sec. 1666. Powers and duties of elected assignee.—Powers and duties of elected assignee.Thereupon, and after the record of such last-named assignment, as in this subchapter provided, such elected assignee or assignees shall take, and hold, and dispose of all such property and its proceeds, upon the trusts and conditions and for the purposes in this subchapter provided. Cross References*Post*, p. 1343.Assignee can not act until bond and inventory filed, see section 1679. *Post*, p. 1344.Commissions and expenses of assignee, see section 1682. Sec. 1667. Insolvency, what.—Insolvency defined.A debtor is insolvent, within the meaning of this subchapter, when he is unable to pay his debts from his own means as they become due. 1341 Cross Reference Insolvency defined, see section 671. *Ante*, p. 1221. Sec. 1668. Certain transfers not affected.— The provisionsCertain transfers not affected. of this subchapter do not prevent a person residing in any state or country from making there, in good faith, and without intent to evade the laws of the Canal Zone, a transfer of property situated within it; but such person can not make a general assignment of property situated in the Canal Zone for the satisfaction of all his creditors, except as in this subchapter provided; nor do the provisions of this subchapter affect the power of a person, although insolvent, and whether residing within or without the Canal Zone, to transfer property in the Canal Zone, in good faith to a particular creditor, or creditors, or to some other person or persons in trust for such particular creditor or creditors for the purpose of paying or securing the whole or part of a debt owing to such creditor or creditors, whether in his or their own right or otherwise. Sec. 1669. What debts may be secured.— An assignmentWhat debts may be secured. for the benefit of creditors may provide for any subsisting liability of the assignor which he might lawfully pay, whether absolute or contingent. Sec. 1670. Assignment when void.— An assignment for the benefitAssignment when void. of creditors is void against any creditor of the assignor not assenting thereto, in the following cases: First. If it give a preference of one debt or class of debts over another. Second. If it tend to coerce any creditor to release or compromise his demand. Third. If it provide for the payment of any claim known to the assignor to be false or fraudulent; or for the payment of more upon any claim than is known to be justly due from the assignor. Fourth. If it reserve any interest in the assigned property, or in any part thereof, to the assignor, or for his benefit, before all his existing debts are paid. Fifth. If it confer upon the assignee any power which, if exercised, might prevent or delay the immediate conversion of the assigned property to the purposes of the trust. Sixth. If it exempt him from liability for neglect of duty or misconduct. Cross References Preferences by special partnership, see section 1138. *Ante*, p. 1277. Preferences to creditors, see section 1657. *Ante*, p. 1338. Sec. 1671. Assignment to be in writing.— An assignment for theAssignment to be in writing. benefit of creditors must be in writing, subscribed by the assignor, or by his agent thereto authorized in writing, and the transfer by the marshal must also be in writing, subscribed by the marshal in his official capacity. Both such assignment and such transfer must be acknowledged, or proved and certified, in the mode prescribed by chapter 22 of this code, and be recorded as required by section 1676.*Ante*, p. 1164.*Post*, p. 1342. Cross References Form of assignment, see section 1663. *Ante*, p. 1339. Recording of assignment, see sections 1672 and 1676. *Post*, p. 1342. Sec. 1672. Compliance with provisions of last section necessary to validity of assignment.—Compliance with provisions of last section necessary to validity of assignment.Unless the provisions of section 1671 are complied with, an assignment for the benefit of creditors is void against every creditor of the assignor not assenting thereto. 1342 Cross Reference*Ante*, p. 1341.Recording of assignments, see sections 1671 and 1676. Sec. 1673. Assignee takes, subject to rights of third parties.—Assignee takes, subject to rights of third parties.An assignee for the benefit of creditors is not to be regarded as a purchaser for value, and has no greater rights than his assignor had, in respect to things in action transferred by the assignment. Sec. 1674. Inventory required.—Inventory required. Within twenty days after an assignment is made for the benefit of creditors, the assignor must make and file, in the manner prescribed by section 1676, a full and true inventory, showing: 1. All the creditors of the assignor; 2. The place of residence of each creditor, if known to the assignor, or if not known, that fact must be stated; 3. The sum owing to each creditor and the nature of each debt or liability, whether arising on written security, account, or otherwise; 4. The true consideration of the liability in each case, and the place where it arose; 5. Every existing judgment, mortgage, or other security for the payment of any debt or liability of the assignor; 6. All property of the assignor at the date of the assignment, which is exempt by law from execution; and 7. All of the assignor’s property at the date of the assignment, of every kind, not so exempt, and the encumbrances existing thereon, and all vouchers and securities relating thereto, and the value of such property according to the best knowledge of the assignor. Sec. 1675. Affidavit of assignor to be filed with inventory.— An affidavit must be made by every assignor executing an assignment for the benefit of creditors, to be annexed to and filed with the inventory mentioned in section 1674, to the effect that the same is in all respects just and true according to the best of such assignor’s knowledge and belief. If the assignor neglects or refuses to make and file such inventory and affidavit within said twenty clays, the assignment shall not, for that reason, be affected in any way, but in that event the assignee or assignees elected by the creditors shall within twenty days thereafter make and file in the office of the registrar of property, a verified inventory of all assets received by them; and such assignee or assignees may at any time, or from time to time, after the transfer to them by the marshal, by petition to the district court, cause the assignor, by order or citation to appear before said court, or a commissioner or referee to be appointed by it, at a time and place to be designated in the order or citation, to be examined touching the matters mentioned in section 1674, and any other matters relative to the assignment, and to have with him all books of account, vouchers, and papers relating to the assigned property; and such court may by its order require the surrender to such assignee or assignees of such books, vouchers, and papers to be by them retained until their trust is fully completed and performed. Sec. 1676. Recording assignment and filing inventory.—Recording assignment and filing inventory.An assignment for the benefit of creditors must be recorded, and the inventory required by section 1674 filed with the registrar of property. Cross Reference*Ante*, p. 1341.Recording of assignment, see sections 1671 and 1672. Sec. 1677. Assignment, when void.—When assignment void.An assignment for the benefit of creditors is void against creditors of the assignor and against purchasers and encumbrancers in good faith and for value unless it 1343is recorded as provided in this subchapter, and unless either the inventory required by section 1674, or the inventory required of the*Ante*, p. 1342. assignee or assignees by section 1675 is filed in the manner provided in this subchapter and within the time designated. Sec. 1678. Bond of assignees.— No bond shall be given by the marshal,Bond of assignees. but he shall be liable on his official bond for the care and custody of the property while in his possession. Within forty days after date of the transfer by the marshal, the assignee must enter into a bond in such amount as may be fixed by the district judge, with sufficient sureties to be approved by such judge, and conditioned for the faithful discharge of the trust and the due accounting for all moneys received by the assignee, which bond must be filed in the same office with the inventory; and any assignee failing to comply with the provisions of this section may be removed by the above-named court on petition of the assignor or any creditor, and his successor appointed by such court. Sec. 1679. Conditions of disposal and conversion; publication of notice by assignee ; dividends; rights of mortgagee.—Conditions of disposal and conversion. Until a Verified inventory has been made and filed, either by the assignor or assignee, as required by the provisions of this subchapter, and the assignee has given the bond required by section 1678, such assignee has no authority to dispose of the property of the estate, or any part of it (except in the case of perishable property, which in his discretion he may dispose of at any time and receive the proceeds of sale thereof) ; nor has he power to convert the property, or the proceeds of any sale of perishable property, to the purposes of the trust. Within ten days after the filing of his bond, the assignee mustPublication of notice by assignee. commence the publication (and such publication shall continue at least once a week for four weeks), in some newspaper of general circulation in the Canal Zone, of a notice to creditors of the assignor, stating the fact and date of the assignment, and requiring all persons having claims against the assignor to exhibit them, with the necessary vouchers, and verified by the oath of the creditor, to the assignee, at his place of residence or business, to be specified in the notice; and he shall also, within ten days after the first publication of said notice, mail a copy of such notice to each creditor whose name is given in the instrument of assignment, at the address therein given. After such notice is given, a copy thereof, with affidavit of due publication and mailing, must be filed with the registrar of property with whom the inventory has been filed, which affidavit shall be prima facie evidence of the facts stated therein. At any time, or from time to time, after the expiration of thirtyDividends. days from the first publication of said notice (provided the same shall also have been mailed as in this section provided), the assignee may, in his discretion, declare and pay dividends to the creditors whose claims have been presented and allowed. No dividend already declaredSubsequent presentment of claims. shall be disturbed by reason of claims being subsequently presented and allowed; but the creditor presenting such claim shall be entitled to a dividend equal to the per cent already declared and paid, before any further dividend is made: *Provided*, *however*, That there*Provisos*.Sufficient assets.Conditions. be assets sufficient for that purpose: *And provided*, That the failure to present such claim shall not have resulted from his own neglect, and he shall attach to such claim a statement, under oath, showing fully why the same was not before presented. When a creditor has a mortgage or pledge of property of the debtor, or a lien thereon, for securing the payment of a debt owing to him from the debtor, and shall not have conveyed, released, or delivered up such security to the marshal, as provided for by section 1664, he shall be admitted as a creditor only for the balance of the*Ante*, p. 1340. 1344debt after deducting the value of such mortgage, pledge, or lien, to be ascertained by agreement between him and the assignee, or by a sale thereof, to be made in such manner as the district court shall direct; or the creditor may release or convey his claim to the assignee upon such property, and be admitted to prove his whole debt. If the value of the property exceeds the sum for which it is so held as security, the assignee may release to the creditor the debtor’s right of redemption thereon on receiving such excess; or he may sell the property, subject to the claim of the creditor thereon; and in either case the assignee and creditor, respectively, shall execute all writings necessary or proper to consummate the transaction. If the property is not sold or released, and delivered up, the creditor shall not be allowed to prove any part of his debt. Sec. 1680. Accounting of assignee.—Accounting of assignee.After six months from the date of an assignment for the benefit of creditors, the assignee may be required, on the petition of any creditor, to account before the district court. Sec. 1681. Property exempt.—Property exempt.Property exempt from execution and insurance upon the life of the assignor, do not pass to the assignee by a general assignment for the benefit of creditors unless the instrument specially mentions them and declares an intention that they should pass thereby. Sec. 1682. Commissions of assignees.—Commissions of assignee.The elected assignee or assignees for the benefit of creditors shall be entitled to a reasonable commission on assignments, to be fixed by the court. Such assignee or assignees shall also be entitled to all necessary expenses in the management of their trust. Cross Reference*Ante*, p. 1340.Commissions and expenses of marshal, see section 1665. Sec. 1683. Assignees protected for acts done in good faith.—Assignees protected for acts done in good faith.An assignee for the benefit of creditors is not to be held liable for his acts, done in good faith in the execution of the trust, merely for the reason that the assignment is afterward adjudged void. Sec. 1684. Assent of creditor necessary to modification of assignment.—Assent of creditor necessary to modification of assignment.An assignment for the benefit of creditors which has been executed and recorded so as to transfer the property to the marshal, or a transfer by the marshal to the elected assignee or assignees which has been executed and recorded, can not afterwards be modified or canceled by the parties without the consent of the assignor and of every creditor affected thereby. CHAPTER 75.— NUISANCENUISANCE. general principlesGeneral principles. Sec. 1685. Nuisance, what.—Definition.Anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, pay 11 So in original., stream, canal, or basin, or any public park, square, street, or highway is a nuisance. Cross Reference See, also, Criminal Code, sections 251 and 252; and Act Canal Commission No. 9, Sept. 2, 1904, section 2. Sec. 1686. Public nuisance.—Public nuisance.A public nuisance is one which affects at the same time an entire community or neighborhood, or 1345any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal. Cross References See, also, Criminal Code, sections 251 and 252. Abating public nuisance, see sections 1694 and 1695. Public nuisance, see sections 1690 et seq. Sec. 1687. Private nuisance.—Private nuisance.Every nuisance not included in the definition of section 1686 is private. Cross Reference Private nuisance, see section 1696. *Ante*, p. 1344. Sec. 1688. What is not deemed a nuisance.— Nothing which isWhat is not deemed nuisance. done or maintained under the express authority of law can be deemed a nuisance. Sec. 1689. AbatementAbatement of, not to preclude action thereon. does not preclude action.— The abatement of a nuisance does not prejudice the right of any person to recover damages for its past existence. public nuisancesPublic nuisances. Sec. 1690. Lapse of time does not legalize.— No lapse of timeLapse of time does not legalize. can legalize a public nuisance, amounting to an actual obstruction of public right. Cross Reference Public nuisance, defined, see section 1686. *Ante*, p. 1344. Sec. 1691. Remedies against public nuisance.— The remediesRemedies against. against a public nuisance are: 1. Information; 2. A civil action; 3. Abatement. Sec. 1692. Remedy regulated, how.— The remedy by informationHow regulated. is regulated by the Criminal Code. Cross Reference See Criminal Code, sections 251 and 252. Sec. 1693. Remedies for public nuisance.— A private person mayRemedies for public nuisance. maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise. Sec. 1694. How abated.— A public nuisance may be abated by anyHow abated. public body or officer authorized thereto by law. private nuisances Sec. 1696. Remedies for private nuisance.— The remedy againstRemedies for private nuisance. a private nuisance is a civil action. CHAPTER 76.— MAXIMS OF JURISPRUDENCEMAXIMS OF JURISPRUDENCE. Sec. 1697. The maxims of jurisprudence hereinafter set forth areApplication. intended not to qualify any of the foregoing provisions of this code, but to aid in their just application. Sec. 1698. When the reason of a rule ceases, so should the rule itself. Sec. 1699. Where the reason is the same, the rule should be the same. 1346 Sec. 1700. One must not change his purpose to the injury of another. Sec. 1701. Anyone may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement. Sec. 1702. One must so use his own rights as not to infringe upon the rights of another. Sec. 1703. He who consents to an act is not wronged by it. Sec. 1704. Acquiescence in error takes away the right of objecting to it. Sec. 1705. No one can take advantage of his own wrong. Sec. 1706. He who has fraudulently dispossessed himself of a thing may be treated as if he still had possession. Sec. 1707. He who can and does not forbid that which is done on his behalf is deemed to have bidden it. Sec. 1708. No one should suffer by the act of another. Sec. 1709. He who takes the benefit must bear the burden. Sec. 1710. One who grants a thing is presumed to grant also whatever is essential to its use. Sec. 1711. For every wrong there is a remedy. Sec. 1712. Between those who are equally in the right or equally in the wrong, the law does not interpose. Sec. 1713. Between rights otherwise equal, the earliest is preferred. Sec. 1714. No man is responsible for that which no man can control. Sec. 1715. The law helps the vigilant, before those who sleep on their rights. Sec. 1716. The law respects form less than substance. Sec. 1717. That which ought to have been done is to be regarded as done, in favor of him to whom, and against him from whom, performance is due. Sec. 1718. That which does not appear to exist is to be regarded as if it did not exist. Sec. 1719. The law never requires impossibilities. Sec. 1720. The law neither does nor requires idle acts. Sec. 1721. The law disregards trifles. Sec. 1722. Particular expressions qualify those which are general. Sec. 1723. Contemporaneous exposition is in general the best. Sec. 1724. The greater contains the less. Sec. 1725. Superfluity does not vitiate. Sec. 1726. That is certain which can be made certain. Sec. 1727. Time does not confirm a void act. Sec. 1728. The incident follows the principal, and not the principal the incident. Sec. 1729. An interpretation which gives effect is preferred to one which makes void. Sec. 1730. Interpretation must be reasonable. Sec. 1731. Where one of two innocent persons must suffer by the act of a third, he, by whose negligence it happened, must be the sufferer. CHAPTER 77.— REPEALSREPEALS. Sec. 1732. Repeal of existing laws.—Codes, orders, etc., designated. The following codes, laws, executive orders, and parts thereof, are hereby repealed: The Civil Code of the Republic of Panama and Amendatory Laws, the Commercial Code of the Republic of Panama, and all other laws, not heretofore repealed, which were continued in force in the Canal Zone by the Executive Order of May 9, 1904; 1347 Sections 410 to 415, inclusive, of the Criminal Code of the Canal Zone, enacted by the Isthmian Canal Commission September 3, 1904; Executive Order of August 20, 1910, “Prescribing method for marriedExecutive Order No. 1239. women to convey or mortgage real estate, and authorizing certain officers to administer oaths;” Executive Order of February 2, 1911, “To provide a method ofExecutive Order No. 1295. executing and recording deeds, and to repeal the Executive Order dated March 12, 1907, effective April 15, 1907, relating to the same subject;” And all other acts, ordinances, orders, and parts thereof, in conflict herewith. Approved, February 27, 1933. Establishing the United States Georgia Bicentennial Commission, and for other purposes. 1933-02-27 129 Chapter 47 Stat. 1347 72 2 United States Government Publishing Office text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain. Digitization Vendor 2024-12-27 public [CHAPTER 129.] JOINT RESOLUTION Establishing the United States Georgia Bicentennial Commission, and for other purposes.February 27, 1933.[[S. J. Res. 223](/us/bill/72/sjres/223).][[Pub. Res., No. 59](/us/bill/72/pubres/59).] *Resolved by the Senate and Rouse of Representatives of the United States of America in Congress assembled, * That there is hereby establishedUnited States Georgia Bicentennial Commission.Establishment, purpose, etc. a commission, to be known as the United States Georgia Bicentennial Commission, for the purpose of participation by the United States in the observance of the two-hundredth anniversary of the founding of the Georgia colony, such commission to be composed of twenty-one commissioners, as follows: Nine persons to be appointed by the President of the United States, six Senators to be appointedComposition. by the President of the Senate, and six Members of the House of Representatives to be appointed by the Speaker of the House of Representatives. The members of the commission shall serve withoutNo compensation, etc. compensation and shall select a chairman from among their number. Approved, February 27, 1933. To authorize the payment of taxes and assessments on family dwelling houses in the District of Columbia in quarterly installments, and for other purposes. 1933-02-28 130 Chapter 47 Stat. 1347 72 2 United States Government Publishing Office text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain. Digitization Vendor 2024-12-27 public [CHAPTER 130.] AN ACT To authorize the payment of taxes and assessments on family dwelling houses in the District of Columbia in quarterly installments, and for other purposes.February 28, 1933.[[H. R. 14392](/us/bill/72/hr/14392).][
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  • 37 Stat. 565
  • 42 Stat. 1005
  • 47 Stat. 1124
  • EO 1888
  • 44 Stat. 928
  • 44 Stat. 929
  • 37 Stat. 561
  • 42 Stat. 1006
  • 44 Stat. 930
  • EO 1860
  • 47 Stat. 1347
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