Second. If both were above the age of sixty, the younger is presumed to have survived. Third.-If one be under fifteen and the other above sixty, the former is presumed to have survived. Fourth.-If both be over fifteen and under sixty, and the sexes be different, the male is presumed to have survived. If the sexes be the same, then the older. Fifth.-If one be under fifteen or over sixty, and the other between those ages, the latter is presumed to have survived. Presumptions-when raised, 21 Cal. 456: of knowledge of the law, 50 Cal. 337: rebutting, 52 Cal. 650: where two equally reasonable, 6 Cal. 630. DISPUTABLE PRESUMPTIONS. SUBDIVISION 1. Innocence-of crime or wrong, evidence required to overcome, see sec. 2061, subd. 5. SUBDIVISION 6. Higher evidence adverse-see sec. 2061, subd. 7. SUBDIVISION 8. Thing delivered, etc.-deed, 49 Cal. 374. SUBDIVISION 11. Title from possession - presumption of: Real property, 4 Cal. 33, 67, 79, 94, 273, 303; 5 Cal. 42, 87, 250, 486; 6 Cal. 109, 148, 173, 649; 7 Cal. 152, 262; 8 Cal. 143, 323, 467, 603; 9 Cal. 1, 63,427, 589; 10 Cal. 181, 230, 233; 11 Cal. 153; 12 Cal. 291, 560; 13 Cal. 38, 166, 562; 15 Cal. 46, 143; 17 Cal. 43, 107, 271; 13 Cal. 199; 19 Cal. 625; 20 Cal. 209; 21 Cal. 305, 324, 381, 423, 453, 610; 23 Cal. 221, 576; 24 Cal. 279; 25 Cal. 25, 509; 27 Cal. 73; 23 Cal. 202; 2) Cal. 206, 480; 30 Cal. 355, 408; 31 Cal. 183, 418; 33 Cal. 310, 668; 36 Cal. 271, 333; 37 Cal. 101; 43 Cal. 371, 485; 44 Cal. 516, 599; 45 Cal. 101, 281: 40 Cal. 523. Personal property, 2 Cal. 370; 5 Cal. 460; 8 Cal. 615; 9 Cal. 246; 1) Cal. 64; 31 Cal. 645. Possession requisite, what constitutes, cotenant, by, 23 Cal. 247, 376: ejectment, in, 13 Cal. 592; 45 Cal. 101, and see REAL PROPERTY, supra; servant by, 8 Cal. 617: tenant by, 34 Cal. 91: timber, of, 12 Cal. 316. SUBDIVISION 14. Officer deemed regularly appointed-3 Cal. 453; 5 Cal. 389; 6 Cal. 215; 16 Cal. 552; 24 Cal. 121; 53 Cal. 29. SUBDIVISIONS 15 and 16. Regular performance of official and judicial duty-1 Cal. 323; 3 Cal. 27, 192; 5 Cal. 53; 6 Cal. 81; 9 Cal. 554; 16 Cal. 227; 21 Cal. 291; 28 Cal. 133; 47 Cal. 43, 222, 294; 48 Cal. 133, 434. 483; 49 Cal. 229, 679; 50 Cál. 360; 51 Cal. 55, 146, 298, 447; 52 Cal. 171, 338, 664; 53 Cal. 239, 420; Dougherty v. Harrison, March 5th, 1880, 5 Pac. C. L. J. 81; La Soc. Française, etc. v. Beard, March 31st, 1880, 5 Pac. C. L. J. 273. SUBDIVISION 16. Jurisdiction-sec. 33n. SUBDIVISION 17. Judicial record correct-48 Cal. 133, 49 Cal. 152, 229; 51 Cal. 219, 298, 447; 52 Cal. 338, 664; 53 Cal. 239, 635. SUBDIVISION 20. Ordinary course of business followed-sec. 1960, subd. 2; 47 Cal. 294. SUBDIVISION 21. Promissory note, etc., imports considerationsee subd. 30 of this section, and Civil Code, secs. 1614, 1615; 9 Cal. 247; 10 Cal. 461; 34 Cal. 138. SUBDIVISION 23. Writing truly dated-deed, 47 Cal. 171. SUBDIVISION 25. Identity-1 Cal. 428; 16 Cal. 554; 25 Cal. 78; 28 Cal. 218, 219; 23 Cal. 514; 46 Cal. 49. SUBDIVISION 26. Death of person-not heard from in seven years, 8 Cal. 62; 33 Cal. 223. SUBDIVISION 29. Copartners-29 Cal. 257; 49 Cal. 344. SUBDIVISION 30. Marriage-Civil Code, secs. 68-78; 10 Cal. 537; 26 Cal. 132; 47 Cal. 621; 52 Cal. 563. SUBDIVISION 31. Legitimacy-13 Cal. 101. SUBDIVISION 33. Law obeyed-51 Cal. 210, SUBDIVISION 36. Foreign laws-21 Cal. 226; 32 Cal. 60. SUBDIVISION 39. Consideration of contract-see subd. 21, note. PRESUMPTIONS IN VARIOUS CASES. Adultery-41 Cal. 107. Ancient writing-when deemed genuine, sec. 1963, subd. 34. Authenticity of book-when presumed, sec. 1963, subd. 35. Burial ground-dedication to public, sec. 1963, subd. 38. Check-45 Cal. 419. Community property-12 Cal. 251. Conclusive presumptions-sec. 1962 and notes. Continuance-of existing thing, sec. 1963, subd. 32. Contract-consideration for, sec. 1963, subd. 39. Conveyance of executor, etc.-sec. 1601. Date-of writing, correct, sec. 1963, subd. 23 and note: of indorsement, see that head. Disputable presumptions-sec. 1963, and note supra. Entire issue, etc.submitted, sec. 1963, subd. 18. Evidence suppressed-would be adverse, sec. 1963, subd. 5. Execution of-conveyance, sec. 1963, subd. 37. Fire department records-Political Code, sec. 3341. Foreign lawsembodied in reports, sec. 1963, subd. 36 and note. Higher evidenceadverse, sec. 163, subd. 6. Identity-of person from name, sec. 1963, subd. 25 and note. Indorsement-of negotiable paper, deemed made at date, sec. 1963, subd. 22. Innocence-sec. 1963, subd. 1. Jurisdiction-presumed, sec. 1963, subd. 16. Law obeyed-sec. 1963. subd. 33. Legitimacy-sec. 1963, subd. 31 and note. Letters received-in regular course of mail, sec. 1963, subd. 24. Militia fine-Political Code, sec. 1935. Money-paid, was due, sec. 1963, subd. 7: in county treasury, 31 Cal. 74. Negligence-25 Cal. 457; 23 Cal. 627; 44 Cal. 83. Notary's protest-Political Code, sec. 795. Obligation delivered back-has been paid, sec. 1963, subd. 9. Officer regularly appointed-sec. 1963, subd. 14 and note. Official and judicial duty regularly performed-sec. 1963, subds. 15, 16, and notes. Ordinary care-taken, sec. 1963, subd. 4. Ordinary consequences-intended, sec. 1963, subd. 3. Ordinary course of business-followed, sec. 1963, subd. 20 and note. Ordinary course of nature, etc.-sec. 1963, subd. 23. Ownership-whence presumed, sec. 1963, subd. 12: from possession, sec. 1963, subd. 11 and note. Partnership-whence presumed, sec. 1963, subd. 29 and note: special, Civil Code, scc. 2484: use of fictitious names in, Civil Code, secs. 24662471. Person not heard from-in seven years, deemed dead, sec. 1963, subd. 26 and note. Possession imports ownership-sec. 1963, subd. 11 and note. Possessor of order on himself-sec. 1963, subd. 26_and note. Private transactions-deemed regular, sec. 1963, subd. 19. Probate Court order-for disclosure of property, sec. 1460. Promissory note, etc.-imports consideration.sec. 1963, subd. 21 and note. Receipt -later. imports previous payments, sec. 1963, subd. 10: only prima facie evidence. 43 Cal. 635. Record-judicial deemed correct, sec. 1963, subd. 17. Short-hand notes-sec. 273. Stock-sale for assessments, Civil Code, sec. 348. Surveys-Political Code, sec. 3973. Surviving calamity-sec. 1963, subd. 40. Thing delivered-to owner, sec. 1963, subd. § and note. Unlawful intent-sec. 1963, subd. 2. CHAPTER VI. INDISPENSABLE EVIDENCE. 1967. Indispensable evidence, what. 1968. To prove usage, perjury, and treason, more than one witness required. $1969. Will to be in writing. 1970. How revoked. 1971. Transfer of real property to be in writing. 1972. Last section not to extend to certain cases. 1973. Agreement not in writing, when invalid. § 1974. Representation of credit by writing. § 1967. The law makes certain evidence necessary to the validity of particular acts, or the proof of particular facts. § 1968. Perjury and treason must be proved by testimony of more than one witness. Treason by the testimony of two witnesses to the same overt act; and perjury by the testimony of two witnesses, or one witness and corroborating circumstances. Two witnesses-for probate of lost will, sec. 1339. § 1969. A last will and testament, except a nuncupative will, is invalid, unless it be in writing and executed with such formalities as are required by law. When, therefore, such a will is to be shown, the instrument itself must be produced, or secondary evidence of its contents be given. [In effect July 1st, 1874.] Lost or destroyed will-probate of, secs. 1338-1341. § 1970. A written will cannot be revoked or altered otherwise than as provided in the Civil Code. [In effect July 1st, 1874.] Revocation or alteration of will-see Civil Code, sec. 1292 et seq. § 1971. No estate or interest in real property, other than for leases for a term not exceeding one year, nor any trust or power over or concerning it, or in any manner relating thereto, can be created, granted, assigned, surrendered, or declared, otherwise than by operation of law, or a conveyance, or other instrument in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by his lawful agent thereunto authorized by writing. Scope of section-application restricted by, sec. 1972. Real property-estate, interest, etc., in, compare sec. 1973, subd. 5: bill of sale insufficient, 52 Cal. 191: mortgage lien can only be created by writing, 53 Cal. 677. Trust-Civil Code, sec. 852; 6 Cal. 154. § 1972. The preceding section must not be construed to affect the power of a testator in the disposition of his real property by a last will and testament, nor to prevent any trust from arising or being extinguished by implication or operation of law, nor to abridge the power of any court to compel the specific performance of an agreement, in case of part performance thereof. Trusts-implied, 21 Çal. 92; 22 Cal. 575; 27 Cal. 119; 35 Cal. 481; 36 Cal. 94. Part performance-enforcing verbal contract after, 1 Cal. 119, 207; 10 Cal. 150; 19 Cal. 447; 24 Cal. 142; 35 Cal. 646; 39 Cal. 109; 44 Cal. 595; 48 Cal. 194: executed parol agreement to convey land, not within statute, 52 Cal. 561. § 1973. In the following cases the agreement is invalid, unless the same or some note or memorandum thereof be in writing, and subscribed by the party charged, or by his agent; evidence, therefore, of the agreement, cannot be received without the writing or secondary evidence of its contents: 1. An agreement that by its terms is not to be performed within a year from the making thereof; 2. A special promise to answer for the debt, default, or miscarriage of another, except in the cases provided for in section twenty-seven hundred and ninety-four of the Civil Code; 3. An agreement made upon consideration of marriage, other than a mutual promise to marry; 4. An agreement for the sale of goods, chattels, or things in action, at a price not less than two hundred dollars, unless the buyer accept and receive part of such goods and chattels, or the evidences, or some of them, of such things in action, or pay at the time some part of the purchase-money; but when a sale is made by auction, an entry by the auctioneer in his sale-book, at the time of the sale, of the kind of property sold, the terms of sale, the price, and the names of the purchaser and person on whose account the sale is made, is a sufficient memorandum; 5. An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein; and such agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent be in writing, subscribed by the party sought to be charged. CODE CIV. PROC.-52. Corresponding provision-see Civil Code, sec. 1624. Note or memorandum-language and sufficiency of, 21 Cal. 609; 37 Cal. 250: by auctioneer, sec. 1973, subd. 4, and note. SUBDIVISION 1. Agreement not to be performed within a yearcases within Statute of Frauds, 43 Cal. 509; 46 Cal. 266; not within statute, 43 Cal. 274: parol partnership, part performance, 47 Cal. 174. SUBDIVISION 2. Guaranty-corresponding provision, Civil Code, sec. 2793: exception, Civil Code, sec. 2794: executor by, sec. 1612: within the statute, 2 Cal. 156; 9 Cal. 323; 12 Cal. 286, 542; 29 Cal. 604; 53 Cal. 54: otherwise, 5 Cal. 285; 6 Cal. 102; 7 Cal. 32; 12 Cal. 311; 18 Cal. 622; 22 Cal. 187; 27 Cal. 80; 2) Cal. 150; 33 Cal. 121; 34 Cal. 673; 38 Cal. 133; written consideration for forbearance, 2 Cal. 460; 50 Cal. 255: of promissory note, 2 Cal. 435. SUBDIVISION 4. Agreement for sale of goods, etc.-auction sale, entry of, see 1 Cal. 415; also, Civil Code, sec. 1798, Political Code, sec. 3292: corresponding provision, Civil Code, sec. 1739, and see Civil Code, sec. 1740: contract in writing, when presumed, 1 Cal. 181: delivery, 3 Cal. 140; 8 Cal. 614; 14 Cal. 384; 19 Cal. 393; 22 Cal. 103,539; 23 Cal. 65, 540: goods and chattels, growing crops are not, 6 Cal. 664: 17 Cal. 545; 37 Cal. 634: insurance policy, fire, as collateral security, 30 Cal. 87: mining stocks bought on margin, 47 Cal. 142, SUBDIVISION 5. Agreement as to real property-agent's authorIty, 21 Cal. 380; 30 Cai. 360; 47 Cal. 213: auction sale, when void, 6 Cal. 75: before statute enacted, 1 Cal. 98: corresponding provision, Civil Code, sec. 1741: court, sale by, not within statute, 9 Cal. 181: executed parol agreement to convey lands, not within statute, 4 Cal. 315; 39 Cal. 639; 52 Cal. 561: growing crops, not within statute, 23 Cal. 69; 37 Cal. 634 lease for more than year, 2 Cal. 603: Mexican law, parol contracts under, 1 Cal. 119; 10 Cal. 17; 24 Cal. 222; 44 Cal. 331; 45 Cal. 587: mining claim, 14 Cal. 22: 20 Cal. 198; 23 Cal. 178; 30 Cal. 481; 51 Cal. 258: oral agreement not to oppose patent, void, 52 Cal. 624: part performance, sec. 1972 and note: promise, parol, to pay for improvements, vaid, 2 Cal. 489: purchase for another, 22 Cal. 575; 35 Cal. 488: right of way, 38 Cal. 111: services in selling land, 37 Cal. 529; 38 Cal. 99; 48 Cal. 194: specific performance of verbal contract, 24 Cal. 171: trust, violation of, 21 Cal. 97; 35 Cal. 481: unwritten contract for sale of land, void, 4 Cal. 90: verbal agreement to reconvey land, 48 Cal. 405; 50 Cal. 23: void in part, if entire contract invalid, 38 Cal. 99: writing need not be alleged, 51 Cal. 210. § 1974. No evidence is admissible to charge a person upon a representation as to the credit of a third person, unless such representation, or some memorandum thereof, be in writing, and either subscribed by, or in the handwriting of, the party to be charged. CHAPTER VII. CONCLUSIVE OR UNANSWERABLE EVI. DENCE. § 1978. Conclusive or unanswerable evidence. § 1978. No evidence is by law made couclusive or unanswerable, unless so declared by this Code. Estoppel-secs. 1908, 1962. |