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partnership and to settle its business, etc., see Kerr's Cyc. C. C.
P. § 1585 and note.

1271



§ 2462 CIVIL CODE. [Div.III,Pt.IV.

§ 2462. >VHAT PARTNER MAY DO IN LIQUIDATION. A

partner authorized to act in liquidation, may indorse, in the
name of the firm, promissory notes, or other obligations held
by the partnership, for the purpose of collecting the same,
but he cannot create any new obligation in its name, or
revive a debt against the firm, by an acknowledgment, when
an action thereon is barred under the provisions of the Code
of Civil Procedure.

History: Enacted March 21, 1872; amended March 30, 1874,
Code Amdts. 1873-4, p. 252.

See Kerr's Cyc. C. C. for 8 pars, annotation.

As to many miscellaneous matters as to partnership gener-
ally, see note § 2395, ante.



1272



Tit.X,ch.II,art.VII.] fictitious name. § 2466

ARTICLE VII.

OF THE USE OF FICTITIOUS NAMES.

§ 2466. Fictitious names, duties of those using.

§ 2467. Style of foreign partnership.

§ 2468. Certificates, execution, filing, etc.

§ 2469. Change of membership, filing new certificate.

§ 2470. Register of firms to be kept by county clerk.

§ 2471. Certified copies of register, and proof of publication,

to be evidence.

§ 2472. Formation of special partnership.

§ 2466. FICTITIOUS NAMES, DUTIES OF THOSE USIXG.

Except as otherwise provided in the next section, every partr
nership transacting business in this state under a fictitious
name, or a designation not showing the names of the persons
interested as partners in such business, must file with the
clerk of the county in which its principal place of business
is situated, a certificate, stating the names in full of all the
members of such partnership and their places of residence,
and publish the same once a week for four successive weeks,
in a newspaper published in the county, if there be one, and
if there be none in such county, then in a newspaper pub-
lished in an adjoining county.

History: Enacted March 21, 1872; amended March 30, 1874,
Code Amdts. 1873-4, p. 253.

See Kerr's Cyc. C. C. for 31 pars, annotation.

56 C. 159, 161 (construed and applied): 56 C. 262, 263. 264
(referred to); 64 C. 73, 74, 28 P. 61 (construed and applied); 67
C. 26, 6 P. 875, 876, (cited in connection with §§ 989-994 C. C. P.):
6 P. 688 (construed and applied); 67 C. 635. 636, 8 P. 444 (con-
strued and applied); 70 C. 194, 195, 196, 11 P. 565 (construed and
applied); 70 C. 398, 399, 11 P. 745 (construed and applied); 74 C.
151, 153, 156, 13 P. 313, 314, 15 P. 451 (construed and applied);
74 C. 586, 588, 16 P. 493, 495 (construed and applied); 81 C. 280,
283, 22 P. 856 (referred to); 82 C. 577, 584, 23 P. 198. 200 (re-
ferring to construction in 56 C. 262); 85 C. 142, 143. 24 P. 659
(construed and applied); 88 C. 600, 601, 26 P. 596. 597 (construed
and applied); 88 C. 644. 647, 26 P. 596 (construed and applied);
89 C. 101, 106, 26 P. 639, 640 (construed and applied); 92 C. 221,
226, 28 P. 935, 936 (construed and applied); 93 C. 126, 28 P. 811

1273



§§ 2467, 2468 CIVIL CODE. [Div.III.Pt.IV.

(referred to); 101 C. 89, 90, 35 P. 431, 432 (construed and ap-
plied); 118 C. 11, 17, 50 P. 23 (construed and applied); 123 C.
185, 186, 55 P. 783 (construed and applied); 135 C. 621, 622, 623,
67 P. 1037 (construed and applied); 6 C. A. 369, 373, 92 P. 322
(construed with § 2468 — what constitutes sufficient publication —
§ 2466 does not require any acknowledgment to complete certifi-
cate) ; 6 C. A. 547, 92 P. 651 (referred to).

As to construction of this section in reference to special pro-
ceedings, see Kerr's Cyc. C. C. § 2468 and note par. 2.

As to effect of this section in action to amend judgment, see
Kerr's Cyc. C. C. P. §§ 989, 994 and notes.

As to many miscellaneous matters as to partnership gener-
ally, see note § 2395, ante.

§2467. STYLE OF FOBEION PARTNERSHIP. A com-
mercial or banking partnership, established and transacting
business in a place without the United States, may, without
filing the certificate or making the publication prescribed in
the last section, use in this state the partnership name used
by it there, although it be fictitious, or do[es] not show the
names of the persons interested as partners in such business.

History: Enacted March 21, 1872; amended March 30, 1874,
Code Amdts. 1873-4, p. 253.

67 C. 635, 636, 8 P. 444 (construed and applied with §§ 2466,
2468).

As to many miscellaneous matters as to partnership gener-
ally, see note § 2395, ante.

As to nonsuit for failure to file certificate, see Kerr's Cyc.
C. C. § 2466 and note par. 21.

§ 2468. CERTIFICATES, EXECUTION, FILING, ETC. The

certificate filed with the clerk, as provided in section twenty-
four hundred and sixty-six, must be signed by the partners,
and acknowledged before some officer authorized to take the
acknowledgment of conveyances of real property. Where the
partnership is hereafter formed, the certificate must be filed,
and the publication designated in that section must be made
within one month after the formation of the partnership, or
within one month from the time designated in the agreement
of its members for the commencement of the partnership;
where the partnership has been heretofore formed, the certifi-
cate must be filed, and the publication made within six

1274



Tit.X,ch.II,art.VII.] CERTIFICATES, ETC. § 2468

months after the passage of this act. Persons doing business
as partners contrarj' to the provisions of this article, shall
not maintain any action upon or on account of any contracts
made or transactions had in their partnership name, in any
court of this state, until they have first filed the certificate
and made the publication herein required.

Hi.story: Enacted March 21, 1872; amended March 30, 1874,
Code Amdts. 1873-4, pp. 253-4; amended by Code Commission,
Act March 16, 1901, Stats, and Amdts. 1900-1, p. 416, held uncon-
stitutional, see history, § 4 ante.

See Kerr's Cyc. C. C. for 11 pars, annotation.

56 C. 159, 161, 162 (construed and applied); 56 C. 262, 264
(referred to); 61 C. 155, 156 (construed and applied); 64 C. 73,
74, 28 P. 61 (construed and applied); 67 C. 26, 6 P. 875, 87.6
(cited in connection with §§989 to 994 C. C. P.); 67 C. 126, 7 P.
445 (construed and applied); 6 P. 688 (construed and applied);
67 C. 635, 636, 8 P. 444 (construed and applied); 70 C. 398, 399,
11 P. 745 (construed and applied); 74 C. 151, 154, 13 P. 313, 314,
15 P. 451 (construed and applied); 74 C. 586, 588, 16 P. 493, 495
(construed and applied); 77 C. 69, 72, 18 P. 886, 888 (referred to
as analogous to similar provision made with reference to cor-
porations in §299 C. C); 81 C. 280, 283, 22 P. 856, 857 (referred
to); 89 C. 101, 106, 26 P. 639, 640 (construed and applied); 93
C. 126, 28 P. 811 (referred to); 101 C. 89, 90, 35 P. 431, 432 (con-
strued and applied); 111 C. 133, 138, 43 P. 525 (referred to in
construing analogous § 299 C. C. requiring corporations to file
copy of articles of incorporation, etc.); 118 C. 11, 17, 50 P. 23
(construed and applied); 123 C. 185, 186, 55 P. 783 (construed
and applied); 135 C. 621, 622, 623, 67 P. 1037 (construed and
applied); 6 C. A. 369, 373, 92 P. 322 (construed with §2466 —
statute is fully met by what publication — acknowledgment);
6 C. A. 547, 92 P. 651 (referred to).

As to effect of this section in action to amend judgment, see
Kerr's Cyc. C. C. P. §§ 989, 994 and notes.

As to failure to file certificate and effect thereof in abating
action, see Kerr's Cyc. C. C. § 2466 and note par. 21.

As to failure to file certificate being matter of defense and
waiver thereof when not specially set up as defense, see Kerr's
Cyc. C. C. § 2466 and note.

As to many miscellaneous matters as to partnership gener-
ally, see note § 2395, ante.

As to when court should instruct jury that plaintiff cannot
recover until provisions of publishing certificate are complied
with, upon issue raised by pleadings, see Kerr's Cyc. C. C.
§ 2466 and note.

1275



§§ 2469-2471 CIVIL CODE. [Div.III,Pt.IV.

§2469. CHANGE OF MEMBERSHIP, FILING NEW CER-
TIFICATE. On every change in the members of a partner-
ship transacting business in this state under a fictitious
name, or a designation which does not show the names of
the persons interested as partners in its business, except in
the cases mentioned in section twenty-four hundred and
sixty-seven, a new certificate must be filed with the county
clerk, and a new publication made as required by this article
on the formation of such partnership.

History: Enacted March 21, 1872; amended March 30, 1874,
Code Amdts. 1873-4, p. 254.

See Kerr's Cyc. C. C. for 2 pars, annotation.

93 C. 172, 178, 28 P. 814, 815 (construed and applied).

As to certificate designating names of persons interested in
partnership transacting business under fictitious name, see
Kerr's Cyc. C. C. § 2466 and note.

As to many miscellaneous matters as to partnership gener-
ally, see note § 2395, ante.

§ 2470. REGISTER OF FIRMS TO BE KEPT BY COUNTY
CLERK. Every county clerk must keep a register of the
names of firms and persons mentioned in the certificates filed
with him, pursuant to this article, entering in alphabetical
order the name of every such partnership, and of each part-
ner therein.

History: Enacted March 21, 1872; amended March 30, 1874,
Code Amdts. 1873-4, p. 254.

93 C. 172, 178, 28 P. 814, 815 (construed and applied).

As to certificate designating names of persons interested in
partnership transacting business under fictitious name, see
Kerr's Cyc. C. C. § 2466 and note.

As to certified copy of certificate provided for in § 2469, ante,
being competent evidence in actions by and against firm, see
Kerr's Cyc. C. C. § 2469, note.

As to many miscellaneous matters as to partnership gener-
ally, see note § 2395, ante.

§ 2471. CERTIFIED COPIES OF REGISTER, AND PROOF
OF PUBLICATION, TO BE EVIDENCE. Copies of the entries
of a county clerk, as herein directed, when certified by him,

1276



Tit.X,ch.II,art.VII.] SPECIAL, FORMING. § 2472

and affidavits of publication, as herein directed, made by
the printer, publisher, or chief clerk of a newspaper, are
presumptive evidence of the facts therein stated.
History: Enacted March 21, 1S72.

93 C. 172, 178, 28 P. 814, 815 (construed and applied).

As to certificate designating names of persons interested in
partnership transacting business under fictitious name, see
Kerr's Cyc. C. C. § 2466 and note.

As to many miscellaneous matters as to partnership gener-
ally, see note § 2395, ante.

§2472. FORMATION OF SPECIAL PARTNERSHIP.

Every co-partnership, other than those mentioned in section
twenty-four hundred and sixty-seven of this code, domiciled
without this state, and having no regular place of business •
within this state, must, within forty days from the time it com-
mences to do business therein, file in the office of the secretary
of state a designation of some person residing within the
state upon whom process issued by authority of or under any
law of this state, may be served. A copy of such designation,
duly certified by the secretary of state, is sufficient evidence
of such appointment. Such process may be served on the
person so designated, or, in the event that no such person is
designated, then on the secretary of state, and the service
is a valid service on such co-partnership.

History: Enacted March 21, 1872; amended April 22. 1909,
Stats, and Amdts. 1909, p. 1065.



1277



§ 2477 CIVIL CODE. [Div.lIT.Pt.lV.

CHAPTER III.

SPECIAL PARTNERSHIP.

Article I. Formation of Partnerships, §§ 2477-2485.

II. Powers, Rights, and Duties of the Partners,
S§ 2489-2496.

III. Liability of Partners, §§ 2500-2503.

IV. Alteration and Dissolution, §§ 2507-2510.

ARTICLE I.

FORMATION OF PARTNERSHIP.

§ 2477. Formation of special partnership.

§ 2478. Of what to consist.

§ 2479. Certified statement.

§ 2480. Acknowledged and recorded. False statement.

§ 2481. Affidavit as to sums contributed.

§ 2482. No partnership until compliance.

§ 2483. Certificate to be published.

§ 2484. Affidavit of publication filed.

§ 2485. Renewal of special partnership.

§2477. FORMATION OF SPECIAL PARTNERSHIP. A

special partnership may be formed by two or more persons,
in the manner and with the effect prescribed in this chap-
ter, for the transaction of any business except banking or
insurance.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 8 pars, annotation.

74 C. 418, 419, 16 P. 196 (construed and applied); 128 C. 120,
128, 60 P. 689 (construed and applied with other sections).

As to formation of special partnership, see 2 L. 43; 8 L. 712.

As to many miscellaneous matters as to partnership gener-
ally, see note § 2395, ante.

As to meaning of term "limited partnership," see 19 Encyc.
L. 336.

As to what constitutes a special partnership, see Kerr's Cyc.
C. C. § 2478, note.

1278



' Tit.X,ch.III,art.I.] statement— false. §§2478-2480

§2478. OF WHAT TO CONSIST. A special partnership
may consist of one or more persons called general partners,
and one or more persons called special partners.
History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 9 pars, annotation.

128 C. 120, 128, 60 P. 689 (construed and applied with other
sections).

As to many miscellaneous matters as to partnership gener-
ally, see note § 2395, ante.

§2479. CERTIFIED STATEMENT. Persons desirous of
forming a special partnership must severally sign a certifi-
cate, stating:

1. The name under which the partnership is to be con-
ducted;

2. The general nature of the business intended to be trans-
acted ;

3. The names of all the partners, and their residences, spec-
ifying which are general and which are special partners;

4. The amount of capital which each special partner has
contributed to the common stock;

5. The periods at which such partnership will begin and
end.

Hi.story: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 2 pars, annotation.

128 C. 120, 128, 60 P. 689 (special partnership Is not disclosed
when).

As to conditions precedent, see ante §§ 707, 1436.

As to effect of non-compliance with statute requirements,
see 19 Encyc. L. 339.

As to many miscellaneous matters as to partnership gener-
ally, see note § 2395, ante.

§2480. ACKNOAVI-EDfiED AND RECOKDED. FALSE
STATEMENT. Certificates under the last section must be
acknowledged by all the partners, before some officer author-
ized to take acknowledgment of deeds, one to be filed in the
clerk's office, and the other recorded in the ofiice of the
recorder of the county in which the principal place of busi-
ness of the partnership is situated, in a book to be kept for

1279



§§ 2481, 2482 CIVIL CODE. [Div.III.Pt.IV.

that purpose, open to public inspection; and if the partner-
ship has places of bu&iness situated in different counties, a
copy of the certificate, certified by the recorder in whose
office it is recorded, must be filed in the clerk's office, and
recorded in like manner in the office of the recorder in every
such county. If any false statement is made in any such
certificate, all the persons interested in the partnership are
liable, as general partners, for all the engagements thereof.

HLstory: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 7 pars, annotation.

128 C. 120, 128, 60 P. 689 (special partnership is not disclosed
when).

As to check not being payment under statutory requirements,
see 54 A. R. 781, 782.

As to many miscellaneous matters as to partnership gener-
ally, see note § 2395, ante.

As to what is not cash under special partnership, see 25 A.
R. 161, 162.

§2481. AFFIDAVIT AS TO SUMS CONTRIBUTED. An

affidavit of each of the partners, stating that the sums speci-
fied in the certificate of the partnership as having been con-
tributed by each of the special partners, have been actually
and in good faith paid, in the lawful money of the United
States, must be filed in the same office with the original cer-
tificate.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 6 pars, annotation.

128 C. 120, 128, 60 P. 689 (special partnership is not disclosed
when).

As to many miscellaneous inatters as to partnership gener-
ally, see note § 2395, ante.

§2482. NO PARTNERSHIP UNTIL COMPLIANCE. No

special partnership is formed until the provisions of the last
five sections are complied with.

Hi.story: Enacted March 21, 1872.

128 C. 120, 128, 60 P. 689 (special partnership is not disclosed
when).

As to many miscellaneous matters as to partnership gener-
ally, see note § 2395, ante.

1280



Tit.X.ch.III.art.L] CERTIFICATE. §§ 2483-2485

§2483. CERTIFK ATE TO BE PUBLISHED. The certifi-
cate mentioned in this article, or a statement of its substance,
must be published in a newspaper printed in the county
where the original certificate is filed, and if no newspaper is
there printed, then in a newspaper in the state nearest
thereto. Such publication must be made once a week for
four successive weeks, beginning within one week from the
time of filing the certificate. In case such publication is not so
made, the partnership must be deemed general.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 6 pars, annotation.

128 C. 120, 128, 60 P. 689 (special partnership is not disclosed
when).

As to many miscellaneous matters as to partnership gener-
ally, see note § 2395, ante.

§2484. AFFIDAYIT OF PUBLICATION FILED. An affi-
davit of the making of the publication mentioned in the pre-
ceding section, made by the printer, publisher, or chief clerk
of the newsaper in which such publication is made, may be
filed with the county recorder with whom the original certifi-
cate was filed, and is presumptive evidence of the facts
therein stated.

Hi-stury: Enacted March 21, 1872.

128 C. 120, 128, 60 P. 689 (special partnership is not disclosed
when).

As to many miscellaneous matters as to partnership gener-
ally, see note § 2395, ante.

§2485. RENEWAL OF SPECIAL PARTNERSHIP. Every
renewal or continuance of a special partnership must be cer-
tified, recorded, verified, and published in the same manner
as upon its original formation.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 10 pars, annotation.

128 C. 120, 128, 60 P. 689 (construed and applied with other
sections).

As to many misci-llaneous matters as to partnership gener-
ally, see note § 2395, ante.

Kerr's C. C— 41 1281



§§ 2489-2491 CIVIL CODE. [Div.III.Pt.IV.

ARTICLE II.

POWERS, RIGHTS, AND DUTIES OF THE PARTNERS.

§ 2489. Who to do business.

§ 2490. Special partners may advise.

§ 2491. May loan money. Insolvency.

§ 2492. General partners may sue and be sued.

§ 2493. Withdrawal of capital.

§ 2494. Interest and profits.

§ 2495. Result of withdrawing- capital.

§ 2496. Preferential transfer void.

§2489. WHO TO DO BtlSINESS. The general partners
only have authority to transact the business of a special
partnership.

Hi.sfory: Enacted March 21, 1872, founded upon § lO, Act
March 4, 1870, Stats. 1869-70, p. 124; amended by Code Com-
mission, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 816,
held unconstitutional, see history, § 4 ante.

§2490. SPECIAL PARTNERS MAY ADVISE. A special
partner may at all times investigate the partnership affairs,
and advise his partners, or their agents, as to their manage-
ment.

History: Enacted March 21, 1872, founded upon § 11, Act
March 4, 1870, Stats. 1869-70, p. 124.

See Kerr's Cyc. C. C. for 6 pars, annotation.

As to many miscellaneous matters as to partnership gener-
ally, see note § 2395, ante.

As to powers of special partners, see 56 A. D. 149.

§2491. MAY LOAN MONEY. INSOLVENCY. A special
partner may lend money to the partnership, or advance money
for it, and take from it security therefor, and as to such loans
or advances has the same rights as any other creditor; but
in case of the insolvency of the partnership, all other claims
which he may have against it must be postponed until all
other creditors are satisfied.

1282



Tit.X.ch.III.art.II.] WITHDRAWING CAPITAL. §§ 2492-2495

Hi$«tory: Enacted March 21, 1872, founded upon § 12, Act
March 4, 1870, Stats. 1869-70, p. 124.

See Kerr's Cyc. C. C. for 4 pars, annotation.

As to many miscellaneous matters as to partnership gener-
ally, see note § 2395, ante.

§ 2492. GE>EKAL PARTNERS MAY SUE AND BE SUED.

In all matters relating to a special partnership, its general
partners may sue and be sued alone, in the same manner as
if there were no special partners.

History: Enacted March 21, 1872, founded upon § 13, Act
Marcli 4,' 1870, Stats. 1869-70, p. 124.

See Kerr's Cyc. C. C. for 3 pars, annotation.
As to many miscellaneous matters as to partnersliip gener-
ally, see note § 2395, ante.

§ 2493. WITHDRA^VAL OF CAPITAL. No special partner,
under any pretense, may withdraw any part of the capital
invested by him in the partnership, during its continuance.

History: Enacted March 21, 1872, founded upon § 14, Act
March 4, 1870, Stats. 1869-70, p. 124.

See Kerr's Cyc. C. C. for 5 pars, annotation.
As to many miscellaneous matters as to partnership gener-
ally, see note § 2395, ante.

§2494. INTEREST AND PROFITS. A special partner may
receive such lawful interest and such proportion of profits
as may be agreed upon, if not paid out of the capital invested
in the partnership by him, or by some other special partner,
and is not bound to refund the same to meet subsequent
losses.

History: Enacted March 21, 1872, founded upon § 15, Act
March 4, 1870, Stats. 1869-70, p. 124.

§2495. RESULT OF ^VITHDRAWINCS ( APITAL. If a spe-
cial partner withdraws capital from the firm, contrary to the
provisions of this article, he thereby becomes a general
partner.

History: Enacted March 21. 1872, founded upon § 16, Act
March 4. 1870. Stats. 1869-70, p. 124.

1283



§ 2496 CIVIL CODE. [Div.III,Pt.IV.

§ 2496. PREFERENTIAL TRANSFER VOID. Every trans-
fer of the property of a special partnership, or of a partner
therein, made after or in contemplation of the insolvency
of such partnership or partner, with intent to give a prefer-
ence to any creditor of such partnership or partner over
any other creditor of such partnership, is void against the
creditors thereof; and every judgment confessed, lien cre-
ated, or security given, in like manner and with the like
intent, is in like manner void.

History: Enacted March 21, 1872, founded upon § 17, Act
March 4, 1870, Stats. 1869-70, p. 124.

S^e Kerr's Cyc. C. C. for 10 pars, annotation.

As to assignment by limited partnership for benefit of credi-
tors, and validity thereof, see note 9 Paige Oh. (N. T.) 577, 3
L. ed. 1109.

As to many miscellaneous matters as to partnership gener-
ally, see note § 2395, ante.



1284



Tit.X,ch.III,art.III.] liability. §§2500,2501

ARTICLE III.

LIABILITY OP PARTNERS.

§ 2500. Liability of partners.

§ 2501. Of special partners.

§ 2502. Liability for unintentional act.

§ 2503. Who may question existence of special partnership.

§2500. LIABILITY OF PARTNERS. The general part-
ners in a special partnership are liable to the same extent
as partners in a general partnership.

Hi.Mtory: Enacted March 21, 1872, founded upon § IS, Act
March 4, 1870, Stats. 1869-70, p. 124.

As to liability of members of special partnership, see 3 L.
503.

As to liability of third party contributing money for partner,
see 25 A. R. 162.

As to many miscellaneous matters as to partnership gener-
ally, see note § 2395, ante.

§2501. OF SPECIAL PARTNERS. The coutriliution of a
special partner to the capital of the firm, and the increase
thereof, is liable for its debts, but he is not otlierwise liable
therefor, except as follows:

1. If he has wilfully made or permitted a false or materially
defective statement in the certificate of -the partnership, the
affidavit filed therewith, or the published announcement
thereof, he is liable, as a general partner, to all creditors of
the firm;

2. If he has wilfully interfered with the business of the
firm, except as permitted in article two of this chapter, he is
liable in like manner; or,

3. If he has wilfully joined in or assented to an act con-
trary to any of the provisions of article two of this chapter,
he is liable in like manner.

History: Enacted March 21, 1872, founded upon § 19, Act
March 4, 1870, Stats. 1869-70, p. 124.

1285



§§ 2502, 2503 CIVIL CODE. [Div.III.Pt.TV.

See Kerr's Cyc. C. C. for 6 pars, annotation.



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