shall be had for said claim, or any part thereof, carrying costs, the costs attending the prosecution of said action, and legally taxable therein, shall likewise be a preferred claim, with the same rank as the original claim: And provided further, If the amount of assets, after deducting costs of levy and sale, shall not be adequate to the payment of all of the preferred claims of this class, they shall be paid pro rata out of the fund hereby made applicable thereto: And provided further, That nothing in this act contained shall be construed to affect any homestead claims, mortgage, or lien of any description, created and existing before the claim of such laborer accrued.

AMENDED SECTION 1206.

LAWS 1893, P. 87; MAR. 9, 1893. SEC. 1206, CODE CIVIL PROCEDURE.

AN ACT to amend section 1206 of the Code of Civil Procedure, relating to certain liens for salaries and wages, and to persons preferred in cases of executions and attachments.

The People, etc.

SEC. 1. Section 1206 of the Code of Civil Procedure is hereby amended so as to read as follows:

SEC. 1206. In cases of executions, attachments, and writs of a similar nature, issued against any person, except for claims for labor done, any miners, mechanics, salesmen, servants, clerks, and laborers, or any other person who renders services or performs work, who have claims against the defendant for labor done or work performed may give notice of their claims, and the amount thereof, sworn to by the person making the claim, to the creditor and the officer executing either of such writs, at any time before the actual sale of property levied on, or in the event of a levy upon money, at any time before the transfer of such money under execution; * * * If any or all of the claims so presented and claiming preference under this section are disputed by either the debtor or a creditor, the person presenting the same must commence an action within 10 days for the recovery thereof, and must prosecute his action with due diligence, or be forever barred from any claim or priority of payment thereof; and the officer shall retain possession of so much of the proceeds of the sale or money as may be necessary to satisfy such claim until the determination of such action; and in case judgment be had for the claim, or any part thereof, carrying costs, the costs taxable therein shall likewise be a preferred claim with the same rank as the original claim.

AMENDED SECTIONS 1204-1208.

LAWS 1907, P. 321; MAR. 16, 1907. (SEC. 1204–1208, CODE CIVIL PROCEDURE.)

The People, etc.

AN ACT to repeal Chapter III, etc. (same as in sec. 1).

SEC. 1. Chapter III of Title IV of Part III of the Code of Civil Procedure and each and every section of said Chapter III are repealed, and a new Chapter III is substituted to take the place thereof in said code to read as follows:

SEC. 1204. When any assignment, whether voluntary or involuntary, is made for the benefit of the creditors of the assignor, or results from any proceeding in insolvency commenced against him, the wages and salaries of miners, mechanics, salesmen, servants, clerks, laborers, and other persons, for services rendered for him within 60 days prior to such assignment, or to the commencement of such proceeding, and not exceeding $100 each, constitute preferred claims, and must be paid by the trustee or assignee before the claim of any other creditor of the assignor or insolvent.

SEC. 1205. Upon the death of any employer, the wages, not exceeding $100 in amount, of each miner, mechanic, salesman, clerk, servant, laborer, or other employee, for work done or services rendered within 60 days prior to such death must be paid before any other claim against the estate of such employer, except his funeral expenses, and expenses of the last sickness, the allowance to the widow and infant children, and the charges and expenses of administration.

SEC. 1206. Upon the levy of any attachment or execution, not founded upon a claim for labor, any miner, mechanic, salesman, servant, clerk, laborer, or other person who has performed work or rendered services for the defendant within 60 days prior to the levy, may file a verified statement of his claim therefor with the officer executing the writ, and give copies thereof to the debtor and the creditor, and such claim not exceeding $100 unless disputed must be paid by such officer from the proceeds of such levy remaining in his hands at the filing of such statement. If any claim is disputed, within the time and in the manner prescribed in section 1207, the claimant must within 10 days thereafter commence an action for the recovery of his demand, which action must be prosecuted with due diligence, or his claim to priority of payment is forever barred. The officer must retain in his possession until the determination of such action so much of the proceeds of the writ as may be necessary to satisfy the claim, and if the claimant recovers judgment the officer must pay the same, including the costs of suit, from such proceeds.

SEC. 1207. Within five days after receiving a copy of the statement provided for in the preceding section, either the debtor or the creditor may file with the officer a verified statement denying that any part of such claim is due for services rendered within 60 days next preceding the levy of the writ, or denying that any part of such claim, beyond a sum specified is so due. If a part of the claim is admitted to be due, and the claimant nevertheless brings suit and does not recover more than the amount so admitted, he can not recover costs, but the costs must be adjudged against him, and the amount thereof deducted from the sum found due him.

SEC. 1208. If the claims presented under section 1206 and not disputed, or, if disputed, established by judgment, exceed the proceeds of the writ not disposed of before their presentation, such proceeds must be distributed among the claimants in proportion to the amount of their respective claims.

ANNOTATIONS.

LEVY ON MINING PROPERTY.

CLAIMS FOR LABOR-PRESENTATION AND PAYMENT.

Miners who have performed labor in and about a mine may, when an execution is levied and the mine advertised for sale, make out and present their duly verified claims, cause the same to be certified by the mine superintendent, and copies of the same to be sent to the sheriff, to the attorney of the plaintiff in the action, and to the defendant. the mining corporation, or its superintendent; and this is sufficient where the claims are not disputed by the mining corporation to protect the liens of the miners and to give them the preferred right to the proceeds of the sale.

Carter v. Green Mountain Gold Min. Co., 83 Cal. 222, p. 223, 23 Pac. 317 (1890). See Johnson v. Goodyear Min. Co., 127 Cal. 4.

The purpose of the notice provided for in section 1206 is to divert from the execution or attaching creditor money which he would otherwise be entitled to claim and receive by virtue of his levy; but a miner or laborer is not required to commence an action to establish his claim unless it is disputed, and if he is a party to the proceedings and the notice is not the initiation of a new and independent proceeding and to be effective is not required to be served like a summons upon the parties and not their attorneys. Carter v. Green Mountain Gold Min. Co., 83 Cal. 222, p. 224, 23 Pac. 317 (1890). Money in the hands of a sheriff at the time of demands made on the part of lien holders, in accordance with the provisions of this section, does not become subject to their liens necessarily, and may thereafter be exhausted by a proper nunc pro tunc order of court made subsequent to the time of the intervention of such lien holders. The rights of such lien holders are purely of statutory origin and there can be no trust fund created in the hands of the sheriff of the proceeds of the sale of mining property, 32857°-18-Bull. 161- -7

that could not be subjected to any lawful order of the court and applied by such order in payment to the sheriff for keepers' fees in the nature of costs.

Legg & Shaw Co. v. Worthington, 157 Cal. 488, p. 491, 108 Pac. 284 (1910).

The rights of lien holders to the proceeds of the sale of mining property do not attach to the property in the sheriff's hands or upon sale, to the fund realized therefrom, by the mere serving of the notice prescribed in this section; but their rights under this section are mere priorities entitling them, under certain circumstances, to enjoy the fruits of the attachment and sale in preference to the plaintiff in the attaching suit, and the lien holders are treated as intervenors and have no superior rights to those of the plaintiff except that of the first recourse to the moneys realized from the sale. and they can not wait until such action of the court as would bind the other parties to the suit becomes final and then review the whole case upon an appeal from an order, which is merely a logical result of the previous action of the court from which no appeal has been taken.

Legg & Shaw Co. v. Worthington, 157 Cal. 488, p. 493, 108 Pac. 284 (1910).

MINERS' WAGES-PAYMENT.

LAWS 1891, P. 195; MAR. 31, 1891.

AN ACT to provide for the payment of the wages of mechanics and laborers employed by corporations. The People, etc.

SEC. 1. Every corporation doing business in this State shall pay the mechanics and laborers employed by it the wages earned by and due them weekly or monthly on such day in each week or month as shall be selected by said corporation.

SEC. 2. A violation of the provisions of section 1 of this act shall entitle each of the said mechanics and laborers to a lien on all the property of said corporation for the amount of their wages, which lien shall take preference over all other liens, except duly recorded mortgages or deeds of trust; and in any action to recover the amount of such wages or to enforce said lien the plaintiff shall be entitled to a reasonable attorney's fee, to be fixed by the court, and which shall form part of the judgment in said action, and shall also be entitled to an attachment against said property.

ANNOTATIONS.

PAYMENT OF MINERS' WAGES.

CONSTRUCTION AND APPLICATION OF ACT.

This act does not apply to all corporations, but only to corporations that employ laborers and mechanics by the week or month, and whose wages, under the terms of their employment, are payable weekly or monthly. The act does not purport to impose upon such corporations any duty or liability toward all the mechanics or laborers whom it may employ, or to create a right in favor of those of its employees whose wages are not earned or payable by the week or month. The statute applies to mining corporations which so employ laborers or miners, as well as to other corporations.

Ackley v. Black Hawk Gravel Min. Co., 112 Cal. 42, p. 44 (1896).

Spaulding v. Mammoth Spring Min. Co., 5 Cal. Unrep. Cas. 712, p. 713, 49 Pac. 183 (1896).

See Johnson v. Goodyear Min. Co., 127 Cal. 4. (Construing similar act of Mar. 29, 1897.)

MINERALS.

QUICKSILVER DUTIES RELATING TO.

LAWS 1865-66, P. 191; MAR. 10, 1866. (GENERAL LAWS 1864-1871, SEC. 8944-8948.)

AN ACT to secure to the miners of this State pure and unadulterated quicksilver

The People, etc.

SEC. 1. Every company or person within this State engaged in the production of quicksilver by mining for the purposes of sale, and every firm, company, or person importing into this State quicksilver for the purpose of sale, shall cause to be prepared a metallic stamp, of such form and character as may enable such company or person to impress upon wax or other plastic material the seal hereinafter provided. Such stamp shall be so constructed that either by characters engraved upon the same, or movable types and dies connected therewith, there may be impressed a seal, showing: First. The name of the company, firm, or person producing or importing the quicksilver;

Second. The date at which such seal is applied to each tank or vessel of quicksilver; Third. The amount of quicksilver contained in such tank or vessel.

SEC. 2. Before any tank of quicksilver shall leave the works of any mining company engaged in the production of the same for sale, or the warehouse of any firm or person importing such quicksilver for sale, such company, firm, or person shall cause a seal of wax or other plastic material adapted to the purpose to be applied to the tap, plug, or orifice through which such tank is filled, and in such manner that such tap or plug can not be removed or disturbed or such orifice opened without breaking or displacing such seal. Such seal when thus applied shall be impressed with the stamp above provided, in such manner that such seal shall exhibit plainly all the characters required of such stamp.

SEC. 3. Any person who shall forge or falsely fabricate the stamp or seal of any company, firm, or person, as herein provided, or attach the same to any tank or vessel of quicksilver, shall be deemed guilty of forgery, and, upon conviction, shall be punished by imprisonment in the State prison for the period of not less than one nor more than five years.

SEC. 4. Any person who shall willfully and knowingly adulterate and debase any quicksilver designed for sale or that may hereafter be offered for sale, by mixing with such quicksilver any lead, antimony, or other base metal, shall be deemed guilty of a misdemeanor, and, upon conviction, shall be fined in a sum not exceeding $1,000, or imprisonment in the county jail not exceeding one year, or both such fine and imprisonment.

SEC. 5. Any vendor of quicksilver who shall vend or sell to any person any quicksilver debased or adulterated by mixture with the same of any lead, antimony, or other base metals, shall be liable to the purchaser of such quicksilver for all the damages and injury sustained from such debasement, to be recovered by such purchaser in a civil action. And such damages, when ascertained by the court or jury, shall be at once quadrupled by the court, or by the clerk, by order of the court, and judgment for four times the damages proven shall be entered in favor of the plaintiff and against such defendant; provided, that nothing contained in this section shall be taken to apply to any person selling quicksilver that has been already employed in mining or the mechanical arts, and who when selling the same shall state to the purchaser that such quicksilver has been thus employed.

COUNTERFEITING AND DEBASING.

SEC. 366, 367, PENAL CODE (1872), P. 89.

SEC. 366. Every person who counterfeits, or who willfully uses the counterfeited seal or stamp of any person engaged in manufacturing or selling quicksilver, is guilty of a felony.

SEC. 367. Every person who willfully sells, or offers for sale as pure, any debased or adulterated quicksilver is guilty of a misdemeanor.

LARCENY OF MINERALS.

LAWS 1871-72, P. 435; MAR. 20, 1872.

AN ACT supplementary to an act entitled "An act concerning crimes and punishments," passed April 16, 1850.

The People, etc.

SEC. 1. Every person who shall feloniously steal, take, and carry away, or attempt to take, steal, and carry from any mining claim, tunnel, sluice, under current, rifflebox, or sulphurate machine any gold dust, amalgam, or quicksilver, the property of another, shall be deemed guilty of grand larceny and upon conviction thereof shall be punished by imprisonment in the State prison for any term of not less than 1 year nor more than 14 years.

SEC. 2. This act shall be in force from and after its passage.

MINERAL CABINET.

CREATION.

LAWS 1871-72, P. 824; APR. 1, 1872.

AN ACT to provide for the establishment of a cabinet department in the State library.

The People, etc.

SEC. 1. It shall be the duty of the State librarian to receive, arrange, and properly display, and take charge of, in the State library, the minerals, precious metals, mineralogical, geological, and fossiliferous specimens, and precious stones hereinafter mentioned and referred to, or which may hereafter become the property of the State by purchase or by presentation.

SEC. 2. (Appraisers to purchase cabinet of J. M. Frey.)

SEC. 3. (Appropriations.) $13,000.

SEC. 4. This act shall take effect from and after its passage.

TRANSFER OF SPECIMENS.

LAWS 1881, P. 103; MAR. 4, 1881.

SENATE CONCURRENT RESOLUTION No. 10, relative to the transfer of mineralogical specimens to the mining bureau.

Resolved by the senate, the assembly concurring, That the collection of mineralogical specimens in the State library of the State of California be transferred to the mining bureau; that the State mineralogist shall, after such transfer, have the custody of said collection.

REMOVAL.

LAWS 1887, P. 74; MAR. 9, 1887.

AN ACT to provide for the removal of the mineral cabinet from the State library.

The People, etc.

SEC. 1. Within 30 days after the passage of this act the governor shall appoint a board of trustees consisting of three persons which shall be known as the trustees of the mineral cabinet.