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dezvous, and naming the officer or person to whom each of such aidsde-camp, or each of such commanding officers shall report.
Sec. 17. Whenever any aid-de-camp shall receive such order from Governor's order. the commander-in-chief, he shall immediately cause the same to be published in the papers of his district, or in such as may be necessary, or in some other manner, he shall give publicity to the order, and unless the requisite number of men be furnished promptly, by the volunteering of independent companies, or of enrolled militia, or of other persons subject, under this law, to military duty, the said aid- Aids-de-camp. de-camp shall forthwith proceed to draft from the enrolled militia of his district, or from other inhabitants of his district, subject under this law to military duty, the number of men called for by the order of the commander-in-chief. He shall cause the names of the men so drafted, to be made known, and shall direct them to rendezvous at some convenient point and fixed time, or as directed in the order of the commander-in-chief. The aid-de-camp, if present, shall superintend the election of officers, as provided in section eighteen of this act, and when he is not present, the men assembled shall appoint their own judges, and inspectors, and proceed to organize as herein provided for.
Sec. 18. Whenever the commander-in-chief, in case of war, inva- Election of sion, insurrection or rebellion, calls out a number of men, said men shall elect their officers by ballot. Sec. 19. When the company or companies, battalions or regiments, Officers to be
commissioned. brigades or divisions, are called out by the commander-in-chief, according to section sixteen, and shall have elected their officers as prescribed by section eighteen, the commander-in-chief shall commission the elected officers who shall hold their commissions until disbanded by order of the commander-in-chief.
Sec. 20. Any person when ordered out by the commander-in-chief Non-compliance through the aid-de-camp, who shall refuse to rendezvous and organize in person, or by substitute, as provided in the foregoing section, shall be subject to a fine not exceeding five hundred dollars, to be recov- Penalty. ered by an action brought by the county attorney, before any court of competent jurisdiction, upon information given to him by the aid-decamp.
Sec. 21. A company, either volunteer or militia, shall be composed Organization of as follows: one captain, one first lieutenant, two second lieutenants, four sergeants, four corporals, two musicians, and sixty privates. A battalion, to be entitled to be commanded by a major, shall consist of two or more companies, as above described, not to exceed four; a battalion of five or more companies, not to exceed nine, shall be com- Battalion.
Pay of officers and privates.
manded by a lieutenant colonel ; a regiment, entitled to be command. ed by a colonel, shall consist of ten companies of the above legal standard; a brigade, to be entitled to be commanded by a brigadier general, shall consist of two full regiments, of twenty companies; a division, to be entitled to be commanded by a major general, shall consist of two or more brigades.
SEC. 22. Whenever, in case of actual service, the governor may call troops into the field, such troops shall be entitled to elect their own officers; but no such officer shall be entitled to receive pay of a higher grade than that to which the number of men, over whom he is so placed, shall be entitled under the provisions of the foregoing section; all troops called into actual service after the passage of this act, for the suppression of indian hostilities, or for any other object, shall be entitled to and receive the same pay as the United States troops, serving in California, and no more.
Sec. 23. The “ Act authorizing the governor to call out troops to defend our frontier, and providing for their pay and compensation," passed March seventeenth, eighteen hundred and fifty-one, is hereby repealed : Provided, that no claim or right, that may have accrued under said act, be affected by this repeal.
Former act repealed.
AN ACT to provide for the Lien of Mechanics and others. (1)
[Passed April 12, 1850.)
The People of the State of California, represented in Senate and
Assembly, do enact as follows :
lien for value thereof.
SECTION 1. All master builders, mechanics, lumber merchants, and or materials for all other persons performing labor or furnishing materials for the building to have
construction or repair of any building or wharf, shall have a lien, separately or jointly, upon the building or buildings, or wharf, which they may have constructed or repaired, or for which they may have furnished materials of any description, to the extent of the labor done or materials furnished, or for both. (2)
(1) For supplemental act, see next chapter. Walker vs. Hauss Hijo et al. See Cal. Sup. Court Rep. vol. 1. page 183.
(2) Where a material man institutes proceedings to enforce a lien, a prior mortgagee of the premises on which the building has been erected, will, on his application, be admitted as defendant to contest the plaintiff's claim. Cal. Sup. Court Rep. vol. 1. page 183.
pay may be sued.
Sec. 2. Any sub-contractor, journeyman, or laborer, who may be Owner liable to
sub-contractors, employed in the construction or repairing of any building or wharf, journeymen,
and laborers. or in furnishing any materials for the same, may give to the owner or owners of the building or buildings, or wharf, on which he may have worked, or for the construction of which he may have furnished materials, notice in writing, particularly setting forth the amount of his claim, and the service rendered, for which his employer is indebted to him, and that he holds said owner or owners responsible for the same; and the owner is hereby made liable for the amount so claim. ed, if indebted to the employer to the amount; if not, then to the amount due from him to said employer at the time such notice was served.
Sec. 3. When any such contractor, journeyman, or laborer, shall Contractor to have given the notice prescribed in the preceding section, he shall such contractor's present to his employer a copy of such notice for his endorsement. claim. If such employer endorse thereon that the claim is correct, the owner or other person liable shall
if indebted to the employer in the amount; if not, then the amount due from him to said employer at the time the notice was served. If he fail or refuse so to Owner failing to pay, such sub-contractor, journeyman, or laborer shall, within thirty days after the service of the notice, commence an action in the proper court to enforce his lien. If, by the terms of the contract be- Proceedings tween the owner and the contractor, the money be payable at some payable by owner future day, such sub-contractor, journeyman, or laborer, may
file the copy of the notice, with the endorsement thereon, in the recorder's office of the county in which the building or wharf is situated ; and shall have thirty days after the money becomes due in which to commence his tion. If he fail to commence his action as prescribed Lien, how lost. in this section, his lien shall be lost. Sec. 4. If the employer fail or refuse to make the endorsement Suing
employer required by the preceding section, such sub-contractor, journeyman, to endorse claim. or laborer, shall lose his lien for the amount claimed, unless he shall, within thirty days after the service of the notice, commence an action in the proper court against his employer to establish the amount of the claim. If he obtain judgment against his employer, he shall lose Suing owner on his lien for the amount thereof, unless, within thirty days thereafter, obtained against
. he shall commence an action against the owner for the amount established by the judgment, if the money be then due from the owner to the contractor; if not, then he shall file in the recorder's office of the Notice of claim county in which the building or wharf is situated, a notice of said recorders office. claim and judgment; and shall commence his action against the
to contractor at a future day.
to be filed in
Owner's liability to
etc., may be set off.
under section 1
owner within thirty days after the money is due from the owner to
Sec. 5. The owner or other person made liable, as aforesaid, for sub-contractor, the amount admitted to be due, or established by judgment, may set
off the same in any action brought against him by the contractor or
person otherwise entitled to recover the same, under the contract. Building and lot Sec. 6. The land upon which any building shall be erected, togesubject to lien.
ther with the space around the same, not exceeding five hundred
association, contracting for the erection or repair of the same. Claim of lien
Sec. 7. Any person wishing to avail himself of the provisions of to be filed, or the first section of this act, whether his claim be due or not, shall file,
in the recorder's office of the county in which the building or wharf
The recorder shall file and record such notice, and all other notices notices. given under the third and fourth sections of this act, in a book provided for the
Sec. 8. No such lien shall bind any building or wharf for a longer claim due. time than one year after the work is done, or the materials have been
furnished, unless suit be brought in a proper court to enforce the same within that time, or if a credit be given, within one year from the expiration of the credit; but no lien shall be continued in force for a longer term than two years from the time the work is completed, or the materials furnished, by any agreement to give credit,
Sec. 9. The lien for work or materials, given by this act, shall be precedence.
preferred to every other lien, or incumbrance, which attached upon the property subsequent to the time at which the work was commenced or the materials were furnished. (1)
Sec. 10. Any person who has received satisfaction for his debt, for which a claim has been filed, or action brought, shall, at the request of any person interested in the property on which the same was a lien, or in having the lien removed, on the payment of costs, within ten days after such request is made, enter satisfaction of the claim in the office where such claim is filed, or such action brought.
Recorder to file and record
Continuance in force of lien after
Continuance in force of lien after building coin pleted.
Liens to have
Satisfaction of lien to be entered.
(1) It seems that the lien of a material man cannot take preference over the lien of a prior mortgage. Cal. Sup. Court Rep. vol. 1, p. 184.
Sec. 11. Any person failing or refusing to enter satisfaction, when Penalty for
refusing to enter required so to do, by the preceding section, shall forfeit and pay to the satisfaction. party or parties aggrieved, the sum of fifty dollars for each day during which he shall so fail or refuse; to be recovered in the same manner as other debts are recovered. Sec. 12. Nothing in this act shall be construed to take away, or Rights of action
not affected by affect in any manner, any action which any such contractor, journey- this act. man, or laborer, would otherwise have against his employer, or which any contractor, or person furnishing materials, would have against the owner of property on which work is performed, or for which materials are furnished.
Sec. 13. Any mechanic or artisan who shall make, alter, or repair Lien for labor any
article of personal property, at the request of the owner, or legal property. possessor
of such property, shall have a lien on such property so made, altered, or repaired, for his just and reasonable charges, for his work done and materials furnished ; and may hold and retain the possession of the same, until such just and reasonable charges shall be paid ; and if not paid for within the space of two months after the work shall Lien not satis have been done, such mechanic or artisan may proceed to sell the pro- may be sola.
fied, property perty by him so made, altered, or repaired, at public auction, by giving three weeks' public notice of such sale, by advertisement, in some newspaper published in the county in which the work may be done, or if there be no such newspaper, then by posting up notices of such sale, in three of the most public places in the town where such work was done; and the proceeds of said sale shall be applied, first, to the Proceeds of sale, discharge of such lien, and the costs and expenses of keeping and sell- how applied. ing such property, and the remainder, if any, shall be paid over to the owner thereof.
Sec. 14. Nothing contained in this act shall be deemed to apply to, Pre-existing liece or affect, any lien heretofore acquired.
AN ACT Supplementary to “ An Act to provide for the Lien of
Mechanics and others,” passed April twelfth, one thousand eight hundred and fifty. (1) [Passed May 17, 1853.]
The People of the State of California, represented in Senate and
Assembly, do enact as follows:
SECTION 1. The act entitled “ An act to provide for the lien of Former act
(1) For act concerning lien of mechanics, see preceding chapter.