Public Law 72–128

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.

Sec. 12. Words; definition; signification of words.—

Words used

Definition; 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:

Sec. 13. Notice, actual and constructive.—

Notice is:

Notice.

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.

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.

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.

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.

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.

Sec. 28. Minors may enforce their rights.—

A minor may enforce

Minors 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.

Section 29. General personal rights.—

Besides the personal

General.

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.

Sec. 31. Libel, what.—

Libel is a false and unprivileged publication

Libel.

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.

Sec. 32. Slander, what.—

Slander is a false and unprivileged

Slander.

publication other than libel, which:

Sec. 33. Privileged publications.—

A privileged publication is

Privileged publications.

one made—

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:

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.

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.—

Sec. 40. What marriages voidable.—

Sec. 41. Annulment of marriage celebrated elsewhere.—

Sec. 42. Jurisdiction of annulment suit; who may institute suit.—

Sec. 43. Legitimacy of children of annulled marriages.—

A judgment

Legitimacy of children of annulled marriages.

of nullity of marriage does not affect the legitimacy of children begotten before the judgment.

Sec. 44. Custody of children of annulled marriages.—

The court

Custody 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 nullity

Effect of judgment of nullity.

of marriage rendered is conclusive only as against the parties to the action and those claiming under them.

Sec. 46. Capability of minors to contract marriage.—

Sec. 47. Application for and issuance of license; fee.—

Sec. 48. Who may celebrate marriages; license to celebrate marriages.—

Sec. 49. Certifying, signing, return, and recording of license; marriage certificate.—

Sec. 50. Violations of provisions of this chapter; punishment.—

Sec. 51. Declaration where there is no record.—

If no record

Declaration 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:

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.

causes for divorce

causes for denying divorce

general provisions

Section 110. Mutual obligations of husband and wife.—

Mutual obligations.

Husband and wife contract towards each other obligations of mutual respect, fidelity, and support.

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.

Sec. 112. In other respects their interests separate.—

Neither

Property 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.—

Either

Individual 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 husband

Alteration 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.

Sec. 115. Consideration for agreement of separation.—

The

Consideration 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 may

How 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 the

Separate 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 property

Separate 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.

Sec. 119. Property acquired after marriage.—

All other property

Property 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.

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.

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.

Sec. 129. Support of wife.—

If the husband neglects to make

Support 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 wife

When 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.

Sec. 132. Rights of husband and wife governed by what.—

The

Property 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.—

All

Marriage 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.

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.—

All

Children born in wedlock.

children born in born in wedlock are presumed to be legitimate.

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.—

The

Who 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.

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.

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.

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.

Sec. 148. When parental authority ceases.—

The authority of a parent ceases:

When parental authority ceases.

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.

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.

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.

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.

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-tions 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 the

Illegitimate 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 father

Adoption 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.

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.

Sec. 166b. General guardian, what.—

A general guardian

General 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 special

Special 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:

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;

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:

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.

Sec. 169a. Removal of guardian.—

Removal of guardian.

A guardian may be removed by the district court for any of the following causes:

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:

Sec. 169c. Suspension of power of guardian.—

The power

Suspension of power of guardian.

of a guardian appointed by a court, is suspended only:

Sec. 169d. Release by ward.—

After a ward

Release 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 guardian

Guardian’s discharge.

appointed by a court is not entitled to his discharge until one year after the ward’s majority.

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:

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:

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 the 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 corporation

License 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 Panama

Revocation 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.

Sec. 180. Permit to sell securities.—

No company shall sell, or

Permits 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 the

Designation 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 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 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:

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 chapter

Definitions.

the signification attached to them in this section, unless otherwise apparent from the context:

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.

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.

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:

Sec. 186. Real property.—

Real property.

Real or immovable property consists of:

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.

Sec. 189. Personal property.—

Personal property.

Every kind of property that is not real is personal.

Sec. 190. Owner.—

All property has an owner, whether that owner

Owner.

is the government, and the property public, or the owner an individual, and the property private.

Sec. 191. Who may own property.—

Any person, whether

Who may own.

citizen or alien, may take, hold, and dispose of property within the Canal Zone.

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.

interests in property

conditions of ownership

restraints upon alienation.

accumulations

Section 229. Increase of property.—

Increase of property.

The owner of a thing owns also all its products and accessions.

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.

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.

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 future

When 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.

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.

personal property in general

things in action

products of the mind

patents, trade-marks, and copyrights

Section 247. Property, how acquired.—

Property is acquired by:

Property, how acquired.

Section 248. Fixtures.—

When a person affixes his property to

Fixtures.

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.

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 restitution of his material in kind, in the same quantity, weight, measure, and quality, or the value thereof; or where he is entitled to the product, the value thereof in place of the product.

Sec. 258. Wrongdoer liable in damages.—

One who wrongfully

Wrongdoer liable in damages.

employs materials belonging to another is liable to him in damages, as well as under the foregoing provisions of this chapter.

definition of transfer

what may be transferred

mode of transfer

interpretation of grants

effect of transfer

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-edgment 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 certificate

Acknowledgment 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 certificate

By 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 taking

Officers’ 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 execution

Proof of execution.

of an instrument, when not acknowledged, may be made either:

Sec. 300. Witness must be personally known to officer.—

If by

Witness 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 witness

Witness 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.

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:

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:

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:

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. 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.

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 governor

Certificate 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 so

Vol. 34, p. 552.

acknowledged and certified. (Act Cong. June 28, 1906, c. 3585, 34 Stat. 552.)

Sec. 311. Who may make a will.—

Every person over the age of

Capacity 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.

Sec. 312. Will, or part thereof, procured by fraud.—

A will, or

Will 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.

Sec. 313. Will of married woman.—

A married woman may

Will 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, to

What 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, other

Execution 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:

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.)

Sec. 323. Will made here by alien.—

A will made within the

Will 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 nuncupative

Nuncupative will, how executed.

will is not required to be in writing, nor to be declared or attested with any formalities.

Sec. 326. Requisites of valid nuncupative will.—

To make a

Requisites of.

nuncupative will valid, and to entitle it to be admitted to probate, the following requisites must be observed:

Sec. 327. Proof of nuncupative wills.—

No proof must be received

Proof.

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 nuncupative

Probate 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 in

Revocation.

this chapter mentioned, no written will, nor any part thereof, can be revoked or altered otherwise than:

Sec. 330. Evidence of revocation.—

When a will is canceled or

Evidence of.

destroyed by any other person than the testator, the direction of the testator, 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.

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.

Sec. 341. When it is a revocation.—

If the instrument by which an

When 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 revokes

Revocation of codicils.

all its codicils.

Sec. 343. Application of provisions as to revocations.—

The provisions

Application 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.—

Whenever

After-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.

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.

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.

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.

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.

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.

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 will

Harmonizing 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 distinct

Case 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.

Sec. 357. When ambiguous or doubtful.—

Where the meaning

Ambiguous 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 will

Construction 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.—

The

To 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.

Sec. 360. Intestacy to be avoided.—

Of two modes of interpreting

Intestacy 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 will

Technical 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.

Sec. 362. Technical words not necessary.—

Technical words are

Technical 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.

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.

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.

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.

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.

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.

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.

Sec. 374. Death of a legatee.—

If a legatee dies during the

Death 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 death

Interests 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 disposition

Conditional bequest.

is one which depends upon the occurrence of some uncertain event, by which it is either to take effect or be defeated.

Sec. 377. Condition precedent, what.—

A condition precedent

Condition precedent.

in a will is one which is required to be fulfilled before a particular disposition takes effect.

Sec. 378. Effect of condition precedent.—

Where a testamentary

Effect 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 subsequent

Condition 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.

Sec. 381. Legatees take as tenants in common.—

A legacy

Legatees take as tenants in common.

given to more than one person vests in them as owners in common.

Sec. 382. Advancements, when ademptions.—

Advancements

Advancement, when ademptions.

or gifts are not to be taken as ademptions of general legacies, unless such intention is expressed by the testator in writing.

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.

Sec. 384. Nature and designation of legacies.—

Nature and designation to legacies.

Legacies are distinguished and designated, according to their nature, as follows:

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:

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:

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 representative; and he may be authorized by the district court to sell the property devised and bequeathed in the cases herein provided.

Sec. 390. Possession of legatees.—

Where specific legacies are for

Possession 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 interest

Bequest of income, etc.

or income of a certain sum or fund, the income accrues from the etc testator’s death.

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 deliverable

Legacies, 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 when

Interest 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 394

Construction of rules.

are in all cases to be controlled by a testator’s express intention.

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 any

Executor 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.

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.

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:

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.

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.

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 received is less than his share, he is entitled to so much more as will give him his full share of the estate of the decedent.

Sec. 413. What are advancements.—

All gifts and grants are

What 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 value

Value 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 any

When 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 by

Control 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.

Sec. 419. Inheritance by representation.—

Inheritance or

Inheritance 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 aliens

Inheritance 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 such 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.

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.)

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.

definition of obligations

interpretation of obligations general rules of interpretation

joint or several obligations

conditional obligations

alternative obligations.

transfer of obligations

extinction of obligations

offer of performance.

prevention of performance or offer

accord and satisfaction

novation

release

Sec. 489. Contract, what.—

A contract is an agreement to do or

“Contract.”

not to do a certain thing.

Sec. 490. Essential elements of contract.—

It is essential to the

Elements of.

existence of a contract that there should be:

parties.

consent

object

consideration

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.

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.

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 required 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 following

Written 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:

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Sec. 557. Law of place.—

A contract is to be interpreted

Law 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 contract

Contracts 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.—

However

Contract 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.

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.

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.

Sec. 564. Inconsistent words rejected.—

Words in a contract

Inconsistent words rejected.

which are wholly inconsistent with its nature, or with the main intention of the parties, are to be rejected.

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.

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.

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.

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.

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.

Sec. 572. What is unlawful.—

Defined.

That is not lawful which is:

Sec. 573. Certain contracts unlawful.—

All contracts

Unlawful 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.

Sec. 574. Contract fixing damages, void.—

Every contract by

Contract 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 therein

Exception.

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 contract

Contract 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.

in general

rescission

alteration and cancellation

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.

Sec. 591. Deceit, what.—

“Deceit,” defined.

A deceit, within the meaning of section“Deceit,” defined. 590, is either:

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.

Sec. 596. Other obligations.—

Other obligations.

Ante, pp. 1125–1178.

Other obligations are prescribed by chapters 2 to 26 of this code.

Sec. 597. Contracts to sell and sales.—

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.—

Sec. 601. Existing and future goods.—

Sec. 602. Undivided shares.—

Sec. 603. Destruction of goods sold.—

Sec. 604. Destruction of goods contracted to be sold.—

Sec. 605. Definition and ascertainment of price.—

Sec. 606. Sale at a valuation.—

Sec. 607. Effect of condition.—

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

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-tion 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 the

Implied 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:

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:

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.—

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:

Sec. 616. Reservation of right of possession or property when goods are shipped.—

Sec. 617. Sale by auction.—

In the case of sale by auction—

Sale by auction.

Sec. 618. Risk of loss.—

Unless otherwise agreed, the goods

Risk 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—

Sec. 619. Sale by person not the owner.—

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—

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. 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 negotiable

Who may negotiate a document.

document of title may be negotiated—

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—

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 who

Warranties.

for warranties. value negotiates or transfers a document of title by indorsement or delivery, including one who assigns for value a claim secured by a document of title unless a contrary intention appears, warrants:

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.—

Sec. 640. Delivery of wrong quantity.—

Sec. 641. Delivery in installments.—

Sec. 642. Delivery to a carrier on behalf of the buyer.—

Sec. 643. Right to examine the goods.—

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 amounts 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.—

Sec. 649. Remedies of an unpaid seller.—

Sec. 650. When right of lien may be exercised.—

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.—

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.—

Sec. 655. Ways of exercising the right to stop.—

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.—

Sec. 657. When and how the seller may rescind the sale.—

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.—

Sec. 660. Action for damages for nonacceptance of the goods.—

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.—

Sec. 664. Specific performance.—

Where the seller has broken

Specific 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.

Sec. 655.11 So in original. Remedies for breach of 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.—

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.

Sec. 674. Definitions.—

In this chapter “conditional sale” means

Definitions.

(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.

“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 statement 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 performance

Cancellation 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 shall

Penalty.

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 be

Repossession.

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.

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 in 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 shall

Proceeds 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 are

Deficiencies.

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.—

Where

Rights 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 of

Election 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 goods

Loss 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 case

Cases 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, mistake, or other invalidating cause, shall continue to apply to conditional sales.

nature and creation of deposit

obligations of the depositary

general provisions

gratuitous deposit

storage

warehousemen

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 the

By 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.