DIVIDENDS HELD BY ATTACHMENT

All dividends accruing on attached stock are impounded with the stock itself, and pass to the execution purchaser. But a subsequent sale of the stock by the purchaser at the execution sale does not carry with it any dividends declared and dues prior thereto, even if declared and due while the stock was held by the attachment.

6 Cates v. Consolidated Realty Co., 25 Cal. App. 531, 144 Pac. 301; McCarthy Co. v. Boothe, 2 Cal. App. 170, 83 Pac. 175, (dictum).

CHAPTER XXX

ACKNOWLEDGMENT OF INSTRUMENTS

Sections 1185 and 1190 of the Civil Code are as follows:

§ 1185. 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. . (Stats. 1905, p. 603.)

§ 1190. The certificate of acknowledgment of an instrument executed by a corporation must be substantially in the following form:

before me (here insert the name and quality of the

officer), personally appeared

proved to me on the oath of

known to me (or -) 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." (Stats. 1905, p. 603.)

Ordinarily the word "execute," as applied to written instruments, includes the delivery of the instrument,

but as used in these sections its meaning is restricted to the signing and sealing.1 The truth of the certificate may be disputed.2

A notary public who certifies to an acknowledgment is responsible for all damages caused by reliance thereon if the instrument is forged, or the person acknowledging it falsely impersonates the person by whom it is actually, or purports to be, signed.3 It is not enough that the person acknowledging it is introduced to the notary by a responsible person; if he does not know the person making the acknowledgment to be the person described in the instrument that fact should have been proved to him by the oath of a credible witness, whose name must be stated. And the affidavit by the person who purports to execute the instrument or by a witness not known to the notary public is not sufficient. The word "instrument," as used in these sections, has been defined to mean some written paper or instrument signed and delivered by one person to another, transferring the title to or creating a lien on property, or giving a right to a debt or duty.""

5

66

1 Dictum in Le Mesnager v. Hamilton, 101 Cal. 532-539, 40 Am. St. Rep. 81, 35 Pac. 1054.

2 Ibid., p. 535.

3 Joost v. Craig, 131 Cal. 504-508, 82 Am. St. Rep. 374, 63 Pac. 840, distinguishing Oakland Bank of Savings v. Murfey, 68 Cal. 455, 9 Pac. 843, a peculiar case, which see.

4 Ibid.

5 Homan v. Wayer, 9 Cal. App. 123, 98 Pac. 80; Hatton v. Holmes, 97 Cal. 208, 31 Pac. 1131; as to acknowledgment by partnerships, see Malloye v. Coubrough, 96 Cal. 649, 31 Pac. 622.

• Hoag v. Howard, 55 Cal. 564.

CHAPTER XXXI

PLEADINGS

As has already been said, this work does not attempt to cover methods of procedure in the courts. Most questions of pleadings are determined in the decisions on the various matters of substantive law and rights; some other cases of interest will be noted below.

Where a corporation changes its name after the creation of the debt and before the suit is brought, the suit should be against the corporation by its new name,1 and when a corporation is sued by a wrong name and it answers by its correct name the complaint may be amended accordingly.2 But where two corporations had identical names, one incorporated in California and the other in New York, both doing business in this state, the body of the complaint describing the defendant as of New York, and that corporation only being served with process, the California corporation not appearing; on the case being called for trial the court had no power to allow an amendment to the complaint by striking out the word "New York" and substituting the word "California," and to proceed with the trial of the case as against the California corporation.3

An averment of the corporate existence of the plaintiff must be made in each count of the complaint, and likewise of the corporate existence of the defendant.* When a corporation is sued by its corporate name, its

1 Cumberland College v. Ish, 22 Cal. 641.

2 Mahon v. San Rafael etc. Road Co., 49 Cal. 269, 270.

3 Altpeter v. Postal etc. Cable Co., 26 Cal. App. 705, 148 Pac. 241.

4 Loup v. California So. R. Co., 63 Cal. 97; People v. Central Pac. R. Co., 83 Cal. 393, 398, 23 Pac. 303.

corporate existence is thereby admitted by the plaintiff, and where the contract sued on describes the plaintiff as a corporation, no further proof of its incorporation is necessary. An allegation in the complaint that the plaintiff is a corporation shows its legal capacity to sue. This allegation may be denied like any other allegation, but proof of even a de facto existence is sufficient. The averment of the de facto existence may be denied. Where the defendant alleges that the plaintiff was a corporation, and had never paid its license tax, and as a consequence that its charter had been forfeited and it had no capacity to sue, the answer made it unnecessary for the plaintiff to introduce a certified copy of its Articles of Incorporation, or otherwise prove that it was a corporation, and the defendant, alleging such a disability, must prove it; the fact that the license fee was not paid is not sufficient-he must also prove that the acts required of the secretary of state and the governor concerning the proclamation of forfeiture have been performed, otherwise the plea fails.9

A contract was signed in the corporation's name, by W., its president. "If the president had no authority to enter into the contract, it was a matter of defense"

5 People v. Stanford, 77 Cal. 360, 364, 2 L. R. A. 92, 18 Pac. 85, 19 Pac. 693; Holmes v. Salamanca etc. Mill. Co., 5 Cal. App. 659, 91 Pac. 160.

6 Fresno Canal etc. Co. v. Warner, 72 Cal. 379, 14 Pac. 37; Tustin Fruit Ass'n v. Earl Fruit Co., 6 Cal. Unrep. 37, 53 Pac. 693; Cellulose etc. Mfg. Co. v. Calhoun, 166 Cal. 513, 516, 137 Pac. 238; Moynihan v. Drobaz, 124 Cal. 212, 71 Am. St. Rep. 46, 56 Pac. 1026; see ante, subject, "Collateral Attack."

7 California Steam Nav. Co. v. Wright, 6 Cal. 258, 65 Am. Dec. 511. 8 Martin v. Deetz, 102 Cal. 55, 41 Am. St. Rep. 151, 36 Pac. 368. Alaska Salmon Co. v. Standard Box Co., 158 Cal. 567-570, 112 Pac. 454; Kaiser Land etc. Co. v. Curry, 155 Cal. 638, 654, 103 Pac. 341; Wilson v. Trainor, 27 Cal. App. 43, 148 Pac. 954.