the amount of eight hundred dollars upon such buildings, and in such application made known the state of title and the relation of the parties thereto, and directed the policy to be written in Loring's name, with the loss, if any, payable to Bunch as his interest may appear; all of which was done, Bunch paying to defendant the premium. In the policy, as appears by the copy made a part of the complaint, it was stipulated that it should be void if the interest of the insured should be other than unconditional and sole ownership. Loss, due proof thereof, and interests of plaintiff were averred.

It is insisted by defendant, in support of its general demurrer, that the actual condition of title as averred, when taken in connection with the averment that Bunch was the sole owner in fee of the property destroyed, precludes recovery. With this contention we do not agree. The issue of a policy upon known facts waives all conditions inconsistent therewith. (Sharp v. Scottish Union etc. Ins. Co., 136 Cal. 542, [69 Pac. 253, 615]; Allen v. Home Ins. Co., 133 Cal. 29, [65 Pac. 138].) Plaintiffs each had an insurable interest in the property. (Civ. Code, sec. 2546; Davis v. Phoenix Ins. Co., 111 Cal. 414, [43 Pac. 1115].) The defendant, having been apprised of the fact that Loring's interest was small, and upon such information issuing a policy for eight hundred dollars and accepting a premium based on that amount, with a proviso that the loss should be payable to Bunch, can only lead to the conclusion that the interests of Bunch and Loring were both insured, and the policy ran to both. To construe the contract as insuring only Loring, would be to say that Bunch was paying a premium and the company accepting the same upon an amount which, in the very nature of things, was far in excess of possible loss. It follows that plaintiffs, both being beneficiaries, could join in the action. Even in cases where part is payable to the assured and part to others, all of the beneficiaries may unite as plaintiffs in the action. (West Coast Lumber Co. v. State etc. Co., 98 Cal. 513, [33 Pac. 258].)

The complaint was neither ambiguous nor uncertain in its allegation with reference to Loring's interest. It avers that in the proof of loss this interest was disclosed. From this it appears that defendant was advised, therefore, of the respective interests. "Faults consisting in ambiguities and un

certainties should be viewed, to a certain extent, in the light of the situation of the parties as to their knowledge of the facts." (Schaake v. Eagle etc. Can Co., 135 Cal. 485, [63 Pac. 1025, 67 Pac. 759].) And the rule is proper in cases where it affirmatively appears that the facts are. equally in possession of both parties.

We do not regard the complaint as ambiguous or uncertain in any of the other respects claimed. Enough appears in the complaint to render it easy of comprehension and free from reasonable doubt. (Salmon v. Wilson, 41 Cal. 602.)

Judgment is reversed, with directions to the court below to overrule the demurrer to the second amended complaint. Gray, P. J., and Smith, J., concurred.

[No. 2. First Appellate District.-June 19, 1905.]

PEOPLE'S HOME SAVINGS BANK, Respondent, v. H. J. SADLER, Appellant; MINNIE C. SADLER et al., Executors, Substituted Appellants.

APPEAL-REVIEW CONFINED TO RECORD-RELATION OF DATE OF AFFIRMANCE. In determining the correctness of a judgment appealed from, this court is limited to a consideration of the record thereof, and error of the trial court cannot be predicated by reason of any matter subsequent to its rendition. If the judgment is affirmed, it is as of the date of its rendition. ID.-DEATH OF APPELLANT SUBSTITUTION OF

EXECUTORS-IMPROPER

MOTION TO REMAND CAUSE.-Where the appellant has died pending the appeal, a motion by his substituted executors to remand the cause to the superior court upon the ground that the judgment is incapable of enforcement for want of presentation of it as a claim against the estate of the deceased appellant is improper and will be denied.

ID.-ENFORCEMENT OF JUDGMENT PROVINCE OF COURT-PROBATE JURISDICTION. The enforcement of the judgment or the right to withhold it is primarily within the jurisdiction of the court in which it was rendered. Upon the death of the appellant the power of the court to enforce the judgment by execution against him terminated, and the respondent is remitted for its collection to the probate jurisdiction having charge of appellant's estate, and to that court the executors must present any defense they may have to its payment from the assets of that estate.

BANK-TRANSFER OF SHARES-ASSUMPTION OF LIABILITY BY TRANSFEREE.-Upon the transfer of shares of stock in a bank and the acceptance of certificates issued therefor, the transferee assumes the liability to the bank for the unpaid amount thereof to which the original owners were subject. ID.-BY-LAWS-GENERAL

POWER OF BANK-INHERENT RIGHT-RESTRICTIONS-ENUMERATION OF POWERS NOT EXCLUSIVE.-A bank as a private corporation has a general power and inherent right incidental to its creation to enact by-laws for its internal government and to regulate the conduct, rights, and duties of its members, independently of legislative declaration, and subject only to legislative restrictions. The enumeration of powers to make by-laws contained in section 303 of the Civil Code does not restrict such general power and inherent right. ID.-BY-LAW FOR ACTION UPON CALLS-CONTRACT-WAIVER OF SESSMENT.-A by-law providing for the enforcement of unpaid calls is within the general power of the bank, and a provision for enforcement thereof by action binds all consenting stockholders; and where all of the stockholders agreed to the by-laws by signature thereto, such contract is a waiver of the right to insist that the corporation shall levy assessments therefor, as provided in the Civil Code, and may be enforced by the bank according to its terms.

As

ID. CONSIDERATION OF CONTRACT BY TRANSFEREE.-The admission of a transferee of stock to the privileges of a member of the corporation, with the right to participate in its proceedings and to receive dividends upon his shares of stock, is a sufficient consideration for the agreement with the corporation by signature to its by-laws. ID.-PROVISION FOR LIEN UPON STOCK-FORECLOSURE NOT REQUIRED.—

A provision in the by-laws giving the bank a lien upon the stock for unpaid calls does not create a mortgago requiring foreclosure under section 726 of the Code of Civil Procedure; and the bank may enforce the payment of the indebtedness by action without any foreclosure of the lien.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco George H. Bahrs, Judge. The facts are stated in the opinion of the court.

Fred H. Hood, C. S. Farquar, and Barnes & Hood, for Appellant.

Stratton & Kaufman, for Respondent.

HARRISON, P. J.-The plaintiff is a corporation organized under the laws of this state, and the appellant is a stock

holder therein holding forty shares of its capital stock of the par value of one hundred dollars, on each of which there has been paid to the plaintiff the sum of thirty-three and one-third dollars and no more. The present action was brought to recover from him the sum of sixty-six and twothirds dollars remaining unpaid upon each of said shares. Judgment was rendered in favor of the plaintiff for $2,666.67 and interest, from which the defendant has appealed, bringing the appeal here upon the judgment-roll, including a bill of exceptions.

The articles of incorporation of the plaintiff, in which five directors were named, were signed and acknowledged May 11, 1888, setting forth the amount of its capital stock to be three hundred thousand dollars, divided into three thousand shares of the par value of one hundred dollars each, and showing that all of it had been subscribed, and that each of the said directors had subscribed for six hundred shares. The certificate of incorporation was issued by the secretary of state May 14, 1888. On May 17, 1888, the aforesaid subscribers for the capital stock, without a meeting having been called for that purpose, assented to in writing, and adopted a code of by-laws for the corporation, and on the same day an entry of that fact was made in the minutes of the directors' meeting. On May 18th these by-laws, duly certified by a majority of the directors and the secretary of the corporation, were copied into a book kept by the corporation and thereafter known as the "Book of By-Laws." Following them there was written in the book and signed by the stockholders the following: "We the undersigned stockholders of the People's Home Savings Bank, a corporation, do hereby agree to the provisions contained in the foregoing by-laws and in such amendments to the said by-laws as may hereafter be adopted, and we agree to obey all the provisions contained therein as aforesaid in every respect." Article IX of these by-laws is as follows: "The board of directors of said corporation shall, at their first meeting, after the adoption of these by-laws, call in thirty-three and one-third per cent of the capital stock thereof, and may issue certificates for such stock under such restrictions as are provided in these by-laws, signed by the secretary and president, or in his absence by the vice-president, and the remaining sixty-six and two-thirds per cent of

said capital stock shall be subject to the call of the board of directors to be made at any time; whenever the remaining sixty-six and two-thirds per cent of said capital stock, or any part thereof, shall be called by the board of directors it shall be immediately paid by the stockholders, and any amount not so paid by any stockholder shall be a debt due to the corporation, and the corporation shall have the right to immediately commence suit therefor in any of the courts of this state, and shall have a lien on the stock owned by any stockholder for the amount so due." On May 18, 1888, five certificates for six hundred shares each of said capital stock were issued to the aforesaid subscribers, upon the back of each of which the aforesaid article IX was printed at length and in full, and the said by-law has since been printed on the back of each certificate of stock issued by the plaintiff.

April 3, 1889, the defendant became the owner by transfer from J. K. Wilson, one of the aforesaid subscribers, of ten shares of the said capital stock, and on that day the plaintiff issued to him a certificate for said ten shares, for which he gave and signed the following receipt: "Received the above certificate subject to the articles of incorporation and by-laws of the corporation," and at the same time subscribed his name to the by-laws copied in the aforesaid book. The capital stock of the plaintiff was thereafter increased from three hundred thousand dollars to one million dollars, divided into ten thousand shares of the par value of one hundred dollars each, and certificates issued to the subscribers therefor, and on June 13, 1890, the defendant became the owner by transfer of thirty of said shares, for which certificates were issued to him by the plaintiff, upon the face of each of which was printed the words "This stock is one-third paid up." After receiving these certificates the defendant attended the stockholders' meetings of the plaintiff, and at said meetings voted the said forty shares, and from time to time received dividends thereon, six in all.

In 1894 the plaintiff became insolvent, and on January 20, 1895, went into liquidation under the provisions of section 11 of the Bank Commissioners' Act as amended in 1887 (Stats. 1887, p. 91); and on August 28, 1895, the bank commissioners directed the directors of plaintiff to levy an assessment for the full amount of its unpaid capital stock. In obedience to