of

to declare

nature.

factured or unmanufactured state; of timepieces of Consignor any description; of negotiable paper or other valuable valuables writings; of pictures, glass, or chinaware, is not liable their for more than fifty dollars upon the loss or injury of any one package of such articles, unless he has notice, upon his receipt thereof, by mark upon the package or otherwise, of the nature of the freight.

NOTE.-Modified from the English Carriers' Act of 1830. The Act of Congress, March 3d, 1851, does not include so many articles.

of freight

beyond

usual route.

2201. If a common carrier accepts freight for a Delivery place beyond his usual route, he must, unless he stipulates otherwise, deliver it at the end of his route in that direction to some other competent carrier carrying to the place of address, or connected with those who thus carry, and his liability ceases upon making such delivery.

NOTE.-Van Santvoord vs. St. John, 6 Hill, p. 157; see Goold vs. Chapin, 20 N. Y., p. 259. The English rule to hold the company which receives and books the goods liable to the end of the route, since the establishment of railways (Hodges on Railw., p. 615; see Red. on Car., etc., Sec. 180), is very seriously questioned in this country.-Id., Sec. 181, Jennison vs. C. and A. Railw., Dist. Court Phil., Vol. 4, Am. Law Reg., p. 234. Stroud, J., reviews all the cases in this country, and concludes that: "When goods are delivered to a carrier marked for a particular place, but unaccompanied by any other directions for their transportation and delivery, except such as might be inferred from the marks themselves, the carrier is only bound to transport and deliver them according to the established usage of the business in which he is engaged, whether that usage was known to the other party or not."Note 9 to Sec. 181, Red. on Car., etc. The rule regarding passengers' baggage checked, seems to be otherwise. See Sec. 2180, and note, ante.

2202. If freight addressed to a place beyond the usual route of the common carrier who first received it is lost or injured, he must, within a reasonable time

6-vol. ii.

Proof to be given in case

of loss.

Carrier's
services.

other than

carriage
and

delivery.

after demand, give satisfactory proof to the consignor that the loss or injury did not occur while it was in his charge, or he will be himself liable therefor.

NOTE. This section is intended to save the consignor from the risk of mistaken actions, by compelling the carrier to give proof that another is liable, the fair presumption being against him.

2203. In respect to any service rendered by a common carrier about freight, other than its carriage and delivery, his rights and obligations are defined by the Titles on Deposit and Service.

NOTE.-See, ante, Titles III and VI, Part IV, Div.

Third.

Order of

transmis

telegraphic

ARTICLE IV.

COMMON CARRIERS OF MESSAGES.

SECTION 2207. Order of transmission of telegraphic messages.
2208. Order in other cases.

2209. Damages when message is refused or postponed.

2207. A carrier of messages by telegraph must, if

sion of it is practicable, transmit every such message immediately upon its receipt. But if this is not practicable,

messages.

A174

and several messages accumulate upon his hands, he must transmit them in the following order:

1. Messages from public agents of the United States or of this State, on public business;

2.- Messages intended in good faith for immediate publication in newspapers, and not for any secret use; 3. Messages giving information relating to the sickness or death of any person;

4. Other messages in the order in which they were received.

NOTE.-An operator sending messages out of their order is punished by Sec. 638 of the Penal Code, Cal. Service of summons in civil actions may be made by telegraph.--See Sec. 1017 of Code of Civil Procedure, Cal. Must serve all alike, and transmit messages in the order in which they are received, promptly and

faithfully.-Secs. 566-570, Red. on Car., etc. Warrant
of arrest may be executed by telegraph.-See Sec. 850,
Penal Code, Cal.; see note to next section.

other cases.

2208. A common carrier of messages, otherwise Order in than by telegraph, must transmit messages in the order in which he receives them, except messages from agents of the United States or of this State, on public business, to which he must always give priority. But he may fix upon certain times for the simultaneous transmission of messages previously received.

NOTE. This follows the rule governing common carriers generally, and makes a proper exception. which is usually provided for by statute. Carrier required by Sec. 2169, ante, to accept and carry whatever of the kind he carries is offered at a reasonable time and place. By Sec. 2170, ante, not to give preference in time, price, or otherwise, except expressly authorized by statute; and Sec. 2171, ante, to give preference to the United States and this State in time, and may do it in price. See, also, notes to the sections referred to.

when

message is

refused or

2209. Every person whose message is refused or Damages postponed, contrary to the provisions of this Chapter, is entitled to recover from the carrier his actual dam- postponed. ages, and fifty dollars in addition thereto.

NOTE. This new provision is needed to protect the rights of parties who are seriously annoyed by delays which, nevertheless, cannot be shown to have caused them pecuniary damage.

TITLE VIII.

TRUST.

CHAPTER I. Trusts in General.

II. Trusts for the Benefit of Third Persons.

NOTE. This Title should be read in connection with the Title on "Uses and Trusts," Secs. 847 to 871, inclusive, and it must be borne in mind that the latter relates to real property only, and "Uses and Trusts"

are treated as estates. In this Title "Trusts" are considered as relating to property generally, and are treated in the light of obligations. See note to Sec. 2220, post.

CHAPTER I.

TRUSTS IN GENERAL.

ARTICLE I. NATURE AND CREATION OF A TRUST.
II. OBLIGATIONS OF TRUSTEES.

III. OBLIGATIONS OF THIRD PERSONS.

Trusts elassified.

ARTICLE I.

NATURE AND CREATION OF A TRUST.

SECTION 2215. Trusts classified.

2216. Voluntary trust, what.

2217. Involuntary trust, what.

2218. Parties to the contract.

2219. What constitutes one a trustee.

2220. For what purpose a trust may be created.

2221. Voluntary trust, how created as to trustor.

2222. How created as to trustee.

2223. Involuntary trustee, who is.

2224. Involuntary trust resulting from negligence, etc.

2215. A trust is either:

1. Voluntary; or,

2. Involuntary.

NOTE.-In voluntary or express trusts no title vests in the proposed trustee, by whatever instrument it is attempted to be transferred, unless he expressly or by implication accepts the office, or in some way assumes its duties and liabilities.-Maccubbin vs. Cromwell, 7 Gill & J., p. 157; Benthune vs. Dougherty, 21 Ga., p. 257; King vs. Donnelly, 5 Paige, p. 46; Trask vs. Donaghue, 1 Aik., p. 370; Burritt vs. Silliman, 13 N. Y., p. 93; De Peyster vs. Clendining, 8 Paige, p. 295; Bulkley vs. De Peyster, 26 Wend., p. 21; Judson vs. Gibbon, 5 Wend., p. 224; Cooper vs. McClun, 16 Ill., p. 435; Perry on Trusts, Sec. 259; see Sec. 2222, post. The proposed trustee could not be compelled to accept

the trust, and might renounce it, even though such
renunciation might deprive the beneficiary of all means
of obtaining a benefit intended for him by a testator.-
Beekman vs. Bonsor, 23 N. Y., p. 298; but see Title
on Uses and Trusts, Secs. 847-871, ante.

When a trust is involuntary, or in other words, when
a trust is created by implication, result, or construction
of law, from the acts of the parties, they will be held
by the law to the performance of the trust, whether
they are willing or unwilling to accept the situation-
that is, when a trust is raised by law and thrust upon
the conscience of a party as the result or construction
to be put upon his own acts, in order to do complete
justice, the acceptance or refusal of the party to be
charged with the trust cannot alter his legal or equita-
ble liability to act as trustee, and to do all that is
required of him to execute the trust. To this extent
it will be seen that a voluntary trust corresponds to
express trusts, and involuntary trusts to implied, re-
sulting, and constructive trusts, as heretofore defined
by Lewin, Hill, Perry, and other writers on the sub-
ject of trusts.

trust,

2216. A voluntary trust is an obligation arising Voluntary out of a personal confidence reposed in, and volunta- what. rily accepted by, one for the benefit of another.

NOTE. A trust is defined by Story as an equitable title to property.-Eq. Jur., Sec. 964. But this is a very narrow definition. So far as his obligations are concerned, a technical trustee stands upon the same footing with a confidential agent or adviser, a guardian, etc., and there is little difference, so far as business relations are concerned, between his position and that of a husband, wife, parent, or attorney. The confidence reposed is the essence of the relation, and it will be found by reference to the numerous cases cited in the course of this Title, that little or no distinction is made between trustees, strictly so called, and any other persons who accept the personal confidence of another. "For the benefit of another." No one can be a trustee for himself. But a trust created for the joint benefit of several persons may be held by one of them.-See ex parte Clutton, 17 Jur., p. 988. And a trust has been sustained for the benefit of a horse.-Pettingall vs. Pettingall, 11 L. J. Ch., p. 176.

2217. An involuntary trust is one which is created Involun

by operation of law.

tary trust, what.