to be filed with the Clerk, instead of being delivered to tion of 3462. An affidavit must be made by every person Verificaexecuting an assignment for the benefit of creditors, inventory. to be annexed to and filed with the inventory mentioned in the last section, to the effect that the same is in all respects just and true, according to the best of such assignor's knowledge and belief. NOTE.-Laws of Cal. (Hittell, ¶ 3813, 24) 1852, p. 61; Laws of N. Y., 1860, Chap. 348, Sec. 2. assignment and filing inventory. 3463. An assignment for the benefit of creditors Recording must be recorded, and the inventory required by Section 3461 filed with the County Recorder of the county in which the assignor resided at the date of the assignment; or, if he did not then reside in this State, with the Recorder of the county in which his principal place of business was then situated; or, if he had not then a residence or place of business in this State, with the Recorder of the county in which the Same. Effect of omitting to record. Assignment of real property. Bond of assigneos. principal part of the assigned property was then situated. NOTE.-See Laws of Cal. (Hittell, ¶¶ 3811, 3816, 3817); Laws of New York, 1860, Chap. 348, Sec. 6; Scott vs. Guthrie, 25 How. Pr., p. 481. 3464. If an assignment for the benefit of creditors is executed by more than one assignor, it may be recorded, and a copy of the inventory required by Section 3461 may be filed with the Recorder of the county in which any of the assignors resided at its date, or in which any of them, not then residing in this State, had then a place of business. 3465. An assignment for the benefit of creditors is void against creditors of the assignor, and against purchasers and incumbrancers in good faith and for value, unless it is recorded, and unless the inventory required by Section 3461 is not filed, pursuant to Section 3463, within twenty days after the date of the assignment. 3466. Where an assignment for the benefit of creditors embraces real property, it is subject to the provisions of Article IV of the Chapter on Recording Transfers, as well as to those of this Title. 3467. Within thirty days after the date of an assignment for the benefit of creditors, the assignee must enter into a bond to the people of this State, in such amount as may be fixed by the County Judge of the county in which the originál inventory is filed, with sufficient sureties, to be approved by such Judge, and conditioned for the faithful discharge of the trust, and the due accounting for all moneys received by the assignee, which bond must be filed in the same office with the original inventory. NOTE.-Laws of Cal. (Hittell, 8821, 12) 1852, p. 69, Sec. 12; Laws of N. Y., 1860, p. 595, Sec. 3. of disposal conversion. 3468. Until the inventory and affidavit required Conditions by Sections 3461 and 3462 have been made and filed, and and the assignee has given a bond as required by the last section, the assignee for the benefit of creditors has no authority to dispose of the estate or convert it to the purposes of the trust. ings. 3469. After six months from the date of an assign- Accountment for the benefit of creditors, the assignee may be required, on the petition of any creditor, to account before the County Judge of the county where the accompanying inventory was filed, in the manner prescribed by the insolvent laws of this State. NOTE. The insolvent laws of the State of California are continued in force by Sec. 19, Subd. 24, of the Political Code. exempt. 3470. Property exempt from execution, and in- Property surance upon the life of the assignor, do not pass to the assignee by a general assignment for the benefit of creditors, unless the instrument specially mentions them, and declares an intention that they should pass thereby. NOTE.-Stats. 1852 (Hittell, ¶ 3815), p. 69, Sec. 6. tion. 3471. In the absence of any provision in the Compensaassignment to the contrary, an assignee for the benefit of creditors is entitled to the same commissions as are allowed by law to executors and guardians; but the assignment cannot grant more, and may restrict the commissions to a less amount, or deny them altogether. 60-vol. ii. NOTE. This changes the compensation as fixed in Assignees protected for acts done in p. 22; Halstead vs. Gordon, 24 Barb., p. 422. A creditor who receives an assignment of property to pay his own debt, and apply the balance to the other debts of the assignor, is not (at any rate in the absence of provision in the assignment) entitled to any commission. Ireland vs. Potter, 25 How. Pr., p. 175. 3472. An assignee for the benefit of creditors is not to be held liable for his acts, done in good faith, good faith. in the execution of the trust, merely for the reason that the assignment is afterward adjudged void. Assent of creditor necessary to modification of assignment NOTE.-Wakeman vs. Grover, 4 Paige, p. 23; Ames vs. Blunt, 5 id., p. 13; Barney vs. Griffin, 4 Sandf. Ch., p. 552; Averill vs. Loucks, 6 Barb., p. 479; Butler vs. Stoddard, 7 Paige, p. 163; Bostwick vs. Beizer, 10 Abb. Pr., p. 197; Collumb vs. Read, 24 N. Y., p. 505; see note to Sec. 52, post, and cases there cited in 6 Cal., p. 483; 13 Cal., p. 302. 3473. An assignment for the benefit of creditors, which has been executed and recorded so as to transfer the property to the assignee, cannot afterwards be canceled or modified by the parties thereto, without the consent of every creditor affected thereby. NOTE. When the assignee of property in trust for creditors has taken possession, the assignment is not revocable.-Forbes vs. Scannell, 13 Cal., p. 288. An assignee becomes a trustee to carry out the objects of the assignment.-Lockwood vs. Canfield, 20 Cal., p. 126; Connolly vs. Peck, 6 Cal., p. 348. An assignee is liable who allows his assignor to act as his agent, who pockets the money.-Baker vs. Baker, 6 Cal., p. 483; reviewed and approved in Riddle vs. Baker, 13 Cal., p. 302. The foregoing Title is in good part taken from the Acts of California and New York, herein before referred to. They are not materially or substantially different. As the "Insolvent Debtors' Law" of this State is continued in existence, that and this Title must be construed together; this Title as to the rights and relations of the parties; the other, as to the method of application. To avail a discharged insolvent debtor, there must be a strict compliance with the requirements of the Insolvent Debtors' Law in procuring it.-Hastings vs. Cunningham, 39 Cal., p. 137. And the records must show a substantial compliance with its requirements as a condition precedent. PART III. NUISANCE. TITLE I. GENERAL PRINCIPLES. III. PRIVATE NUISANCES. TITLE I. GENERAL PRINCIPLES. SECTION 3479. Nuisance, what. 3480. Public nuisance. 3481. Private nuisance. 3482. What is not deemed a nuisance. 3483. Successive owners. 3484. Abatement does not preclude action. what. 911/74 3479. A nuisance consists in unlawfully doing an Nuisance, act, or omitting to perform a duty, which act or omission either: 1. Annoys, injures, or endangers the comfort, repose, health, or safety of others; or, 2. Offends decency; or, 3. Unlawfully interferes with, obstructs, or tends to obstruct, or renders dangerous for passage, any lake, or navigable river, bay, stream, canal, or basin, or any public park, square, street, or highway; or, 4. In any way renders other persons insecure in life, or in the use of property. |