ness, the charges and expenses of administering upon the estate, and the allowance to the widow and infant children, and be paid pro rata before all other claims against the estate of the deceased person or persons; provided, this act shall in no way affect the homestead or other property exempted by law from forced sale in payment of debts, or any mortgage or lien lawfully obtained on the property of the deceased before his death. Wages on execution or attachment against employer. 731. § 3. In all cases of executions, attachments, and writs of a similar nature, hereafter to be issued against any person or persons, or chartered company, or corporation, it shall be lawful for such miners, mechanics, salesmen, servants, clerks and laborers, to give notice of their claim or claims, and the amount thereof, duly certified and sworn to by the creditor or creditors making the clain, to the officer executing either of such writs, at any time before the actual sale of property levied on; and such officers shall pay to such miners, mechanics, salesmen, servants, clerks or laborers, out of the proceeds of the sale, the amount each is justly and legally entitled to receive for services rendered, within the forty days next preceding the levy of the writ of execution, attachment or other writ, not exceeding one hundred dollars of gold coin of the United States; provided, if any or all of the claims so presented and claiming preference under this section shall be disputed by either the debtor or the creditor, the miner, mechanic, salesman, servant, clerk or laborer presenting the same shall commence an action within ten days for the recovery thereof, and shall prosecute his action with due diligence, or be forever barred from any claim of priority of payment thereof; but in case action is rendered necessary by the act, as aforesaid, of either debtor or creditor, and judg ment shall be had for said claim, or any part thereof, carrying costs, the costs attending the prosecution of said action, and legally taxable therein, shall likewise be a preferred claim, with the same rank as the original claim; and provided further, if the amount of assets, after deducting costs of levy and sale, shall not be adequate to the payment of all of the preferred claims of this class, they shall be paid pro rata out of the fund hereby made applicable thereto; and provi ded further, that nothing in this act contained shall be construed to affect any homestead claims, mortgage, or lien of any description, created and existing before the claim of such laborer accrued. INTEREST. An Act to regulate the interest of money. Passed March 13, 1850, 92. Legal rate of interest. 732. § 1. When there is no express contract in writing fixing a different rate of interest, interest shall be allowed at the rate of seven per cent. per annum, for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing; on any judgments recovered before any court in this State for moneys lent; for moneys due on the settlement of accounts, from the day on which the balance is ascertained, and for moneys received to the use of another. (a) [Amendment, approved March 30, 1868; 1867-8, 553; took effect in sixty days. [8 Cal. 31; 16 Cal. 140; 28 Cal. 78, 628; 31 Cal. 467; 32 Cal. 82.] Written agreements for interest. Interest on judgments. 733. §2. Parties may agree in writing for the payment (a) The original section was the same, except that it contained the word "ten" instead of "seven." of any rate of interest whatever on money due or to become due, and it shall be allowed according to the terms thereof until the entry of judgment thereon; but whatever may be the rate of interest agreed upon, no judgment or decree in any court of this State shall draw interest at a rate to exceed seven per cent. per annum. (a) [Amendment, approved March 30, 1868; 1867-8, 553; took effect in sixty days. [5 Cal. 416; 11 Cal. 14; 28 Cal. 288; 29 Cal. 165.] 734. § 3. The parties may in any contract in writing, whereby any debt is secured to be paid, agree, that if the interest on such debt is not punctually paid it shall become a part of the principal, and thereafter bear the same rate of interest as the principal debt. [29 Cal. 385.] COMMON LAW. An Act adopting the common law. Common law the rule of decision. 735. The common law of England, so far as it is not repugnant to or inconsistent with the constitution of the United States, or the constitution or laws of the State of California, shall be the rule of decision in all the courts of this State. [2 Cal. 39, 99, 568; 6 Cal. 359; 7 Cal. 479; 15 Cal. 308; 27 Cal. 346.] (a) Original section: § 2. Parties may agree in writing for the payment of any rate of interest whatever on money due, or to become due on any contract. Any judgment rendered on such contract shall conform thereto, and shall bear the interest agreed upon by the parties, and which shall be specified in the judgment. INDEX. Abatement, action not to abate for death or disability of nuisance or waste.. forcible entry, etc., case not to abate for non-joinder of real party in interest. by assignee by executors, administrators, trustees, etc. by and against married women rights of married women in all having interest may be joined in. for death of child or ward against persons severally liable.. not to abate for death or transfer. title of, in complaint... another pending, when cause of demurrer. ejectment... 16 249 718 179 710 193 193 56 56 1 2 4 5 8 11 12 15 16 18 19 21 22 27 32 39 40 53 58 |