ART. 123, Sec. 10. If he refuse, or neglect to account for and pay over money so received by him, as required by the last section, the county treasurer shall bring an action against him for the recovery thereof, in the name of the county, and may recover in such action, in addition to the amount so received, fifty per cent. damages and interest. For such refusal or neglect he shall also be deemed guilty of a misdemeanor in office. ART. 124, Sec. 11. The district attorney shall, without fee, give his opinion to any assessor or collector, or any county auditor or treasurer, in any matter relating to the duties of their respective offices. ART. 125, Sec. 12. The district attorney shall not act as counsel in a civil action, or in a special proceeding of a civil nature, for a private party, against whom a criminal action for a felony is pending. ART. 126, Sec. 13. He shall keep a register of his official business, in which shall be entered a note of every action, whether criminal or civil, prosecuted by him officially, and of the proceedings therein, which shall, upon the expiration of his term of office, be turned over to his successor. ART. 127, Sec. 14. The district attorney may be indicted for a misdemeanor in office, or neglect of duty, and be punished by removal, or by fine, not exceeding two thousand dollars, for the use of the county in which he is convicted, or by both such fine and removal. ART. 128, Sec. 15. The district attorney shall receive such salary as may be fixed by law, in addition to the fees allowed for the prosecution of offenses and of forfeited recognizances. He shall also be entitled to receive, for all amounts collected by him for the state or county by action, ten per cent. on the amount collected, and for all criminal actions successfully prosecuted by him, such fees as may be allowed by law, to be paid by the defendant. (1) Act of May 12, 1853, concerning Auditing Accounts by the Court of Sessions and Board of Supervisors. ART. 129, Sec. 1. The district attorney, when not in attendance upon the district court or court of sessions, as criminal prosecutor, shall attend the sittings of the board of supervisors or court of sessions (as the case may be), when engaged in auditing accounts and claims brought against the county, and in all cases oppose such accounts or claims as he may deem unjust, illegal or extortionate. ART. 130, Sec. 2. No district attorney, except for his own services, shall be allowed to present any claim, account or demand for allowance against his own county, or in any way to advocate the relief asked on the claim or demand made by another. ART. 131, Sec. 3. Any person, being a citizen and tax-payer of the county in which he resides, may appear before the board of supervisors or court of sessions (as the case may be), and oppose the allowance of any claim or demand made against the county; provided, however, that the provisions of this section shall not apply to cases where fees are prescribed by statute. III. ATTORNEY AT LAW. Act of Feb. 19, 1851, concerning Attorneys and Counselors at Law. ART. 132, Sec. 1. Any white male citizen, of the age of twenty-one years, of good moral character, and who possesses the necessary qualifications of learning and ability, shall be entitled to admission as attorney and counselor in all the courts of this state. ART. 133, Sec. 2. Every applicant for admission as attorney and counselor shall produce satisfactory testimonials of good moral character, and undergo a strict examination, in open court, as to his qualifications, by one of the judges of the supreme court of this state. ART. 134, Sec. 3. If, upon examination, he be found duly qualified, the court shall admit him as attorney and counselor in all the courts of this state, and shall (1) See Salary. direct an order to be entered to that effect upon its records, and that a certificate of such record be given to him by the clerk of the court, which certificate shall be his license. ART. 135, Sec. 4. The district and county courts of this state are authorized to admit, as attorney and counselor in their respective courts, any white male citizen of the age of twenty-one years, and of good moral character, who possesses the requisite qualifications, on similar testimonials and like examinations as are required by the preceding sections for admission by the supreme court, and may direct their clerks to give a certificate of such admission, which certificate shall be his license to practice in such courts. ART. 136, Sec. 5. Every person, on his admission, shall take an oath or affirmation to support the constitution of the United States and of the state, and to discharge the duties of attorney and counselor to the best of his knowledge and ability. A certificate of such oath or affirmation shall be indorsed on the license. ART. 137, Sec. 6. The examination may be dispensed with, in the case of a person who has been admitted attorney and counselor in the highest courts of a sister state; his affidavit of such admission, or his license showing the same, shall be deemed sufficient to entitle him to admission. ART. 138, Sec. 7. Each clerk shall keep a roll of attorneys and counselors of the court of which he is clerk, which shall be a record of the court. ART. 139, Sec. 8. If any person shall practice law in any court, except a justice's or recorder's court, without having received a license as attorney and counselor, he shall be deemed guilty of a contempt of court, and punished as in other cases of contempt. ART. 140, Sec. 9. An attorney and counselor shall have authority: 1. To bind his client in any of the steps of an action or proceeding, by his agreement filed with the clerk, or entered upon the minutes of the court, and not otherwise. 2. To receive money claimed by his client in an action or proceeding, during the pendency thereof, or within one year after judgment, and upon the payment thereof, and not otherwise, to discharge the claim or acknowledge satisfaction of the judgment. ART. 141, Sec. 10. The attorney in an action, or special proceeding, may be changed at any time before judgment or final determination, as follows: 1. Upon his own consent, filed with the clerk, or entered upon the minutes. 2. Upon the order of the court, or judge thereof, on the application of the client. ART. 142, Sec. 11. When an attorney is changed, as provided in the last section, written notice of the change and of the substitution of a new attorney, or of the appearance of the party in person, shall be given to the adverse party; until then he shall be bound to recognize the former attorney. ART. 143, Sec. 12. When an attorney dies, or is removed, or suspended, or ceases to act as such, a party to an action for whom he was acting as attorney shall, before any further proceedings be had against him, be required by the adverse party, by written notice, to appoint another attorney, or to appear in person. ART. 144, Sec. 13. An attorney and counselor may be removed or suspended by the supreme court, and by no other court in the state, for either of the following causes, arising after his admission to practice: 1. Upon his being convicted of felony or misdemeanor, involving moral turpitude, in either of which cases the record of his conviction shall be conclusive evidence. 2. For willful disobedience or violation of the order of a court, requiring him to do or forbear an act connected with, or in the course of, his profession. ART. 145, Sec. 14. In case of the conviction of an attorney or counselor of a felony, or misdemeanor involving moral turpitude, the clerk of the court in which the conviction was had, shall, within thirty days thereafter, transmit to the supreme court a certified copy of the record of conviction. ART. 146, Sec. 15. The proceedings to remove or suspend an attorney and counselor, under the first subdivision of section thirteenth, shall be taken by the court on the receipt of the certified copy of the record of conviction; the proceedings under the second subdivision of section thirteenth may be taken by the court for matters within its knowledge, or may be taken upon the information of another. ART. 147, Sec. 16. If the proceedings be upon the information of another, the accusation shall be in writing, and shall be presented to the court. ART. 148, Sec. 17. The accusation shall state the matters charged, and shall be verified by the oath of the person making it, or some other person, to the effect that the charges therein contained are true. ART. 149, Sec. 18. After receiving the accusation, the court shall, if in its opinion the case require it, make an order requiring the accused to appear and answer the accusation, at a specified time, in the same or subsequent term, and shall cause a copy of the order and of the accusation to be served upon the accused, within a prescribed time before the day appointed in the order. ART. 150, Sec. 19. The accused must appear at the time appointed in the order, and answer the accusation, unless for sufficient cause the court assign another day for that purpose; if he do not appear, the court may proceed and determine the accusation in his absence. ART. 151, Sec. 20. The accused may answer to the accusation, either by objecting to the sufficiency, or by denying its truth. ART. 152, Sec. 21. If he object to the sufficiency of the accusation, the objection shall be in writing, but need not be in any specific form; it being sufficient if it present intelligibly the grounds of the objection. If he deny the truth of the accusation, the denial may be oral, and without oath, and shall be entered upon the minutes. ART. 153, Sec. 22. If an objection to the sufficiency of the accusation be not sustained, the accused shall answer forthwith. ART. 154, Sec. 23. If the accused plead guilty, or refuse to answer the accusation, the court shall proceed to judgment of removal or suspension. If he deny the matters charged, the court shall immediately, or at such time as it may appoint, proceed to try the accusation. ART. 155, Sec. 24. The court may in its discretion order a reference to a committee to take depositions in the matter, and to report to the court before proceeding to try the accusation. ART. 156, Sec. 25. Upon conviction, in cases arising under the first subdivision of section thirteenth, the judgment of the court shall be, that the name of the party be stricken from the roll of attorneys and counselors of the court, and he be precluded from practicing as such attorney or counselor in all the courts of this state; and upon conviction in cases under the second subdivision of section thirteenth, the judgment of the court may be according to the gravity of the offense charged-deprivation of the right to practice as attorneys or counselors in the courts of this state, permanently or for a limited period. See Office, Crimes and Punishments, Civil Practice, Criminal Practice. JUDICIAL DECISIONS. 1. WHERE a person has been admitted as an attorney of the supreme court, the district court has no authority to remove him from office. People v. Turner, 1 Cal. 190. 2. An attorney has no lien upon a judgment recovered by him in favor of his client, for a quantum meruit compensation for his services. Ex parte Kyle, 1 Cal. 331. 3. An attorney, by virtue of his retainer and general control over a case in court, has the power to bind his client by consenting to an order of the court. Hart v. Spalding, 1 Cal. 213. 4. The agreement of an attorney, to conclude the client, must be in writing and filed with the clerk or entered on the minutes. Smith v. Pollock, 2 Cal. 92. 5. An agreement made by an attorney with his client, that he is to receive, as compensation for his services, a portion of the judgment, gives no lien on the judgment. Mansfield v. Dorland, 2 Cal. 507. 6. In declaring against an attorney for negligence, it is only necessary to aver generally that he was retained. But if it be alleged that he was retained in consideration of certain reasonable fees and rewards to be paid him, and no future time is stated as agreed upon for the payment of such fee, the declaration must aver payment, and the omission of this is error. Cavillaud v. Yale, 3 Cal. 108. 7. An attorney is always entitled to his retaining fee in advance, unless he stipulates to the contrary. Id. 9. An attorney in fact does not hold the character of trustee, and is not a necessary party to a suit to repre- 10. A power of attorney confirming all sales, leases and contracts of every description, confers the power to sell land. Sullivan v. Davis, 4 Cal. 291. 11. An attorney cannot be made to disclose communications made to him confidentially in that capacity. Landsberger v. Gorham, 5 Cal. 450. The same rule extends to an attorney's clerk. Id. 12. Where authority to perform specific acts is given by a power of attorney, and general words are also used, such words are limited to the particular acts authorized. Billings e. Morrow, Jan. T. 1857. 13. A power to sell real estate must be expressly stated. Id. 14. A principal who ratifies the acts of his agent must know the character of those acts, and unless all the circumstances are made known to him the ratification is void. Id. People v. Turner, 1 Cal. 143; Lord v. Sherman, 2 Cal. 498; Grant . White, Jan. T. 1856. ARTICLE IX. AUCTIONEER. ARTICLE 157. Who may become an auctioneer; how to qualify. 167. Oath of auctioneer. 158. Bond, form and amount of. 160. License tax. 168. Penalty for violation of act. 169. Goods to be sold to the highest bidder. 170. Commissions. 159. What may be sold at auction. 161. License, how obtained. 162. Who prohibited from acting as auctioneer. 163. Penalty, duty of district attorney; disposition of moneys; fee of district attorney. 171. Memorandum of sales to be kept. 172. Where no sales have been made, affidavit of fact 173. County treasurer to pay money to state treasurer, 164. In city, etc. having no auctioneer, sheriff etc., to 174. Moneys to constitute part of the general fund. act; false return, penalty. 165. Duty to be paid by auctioneer. 166. Statement to be made. 175. Compensation of county treasurer. 176. Penalty for failing to comply with act. Act of May 15, 1854, to provide Revenue for the Support of the Government. Art. 5. ARTCLE 157, Sec. 14. Any citizen of this state may become an auctioneer for the county in which he resides, and be authorized to sell any real or personal property at public auction or vendue, on giving bonds in accordance with law for the faithful performance of his duty, and the payment of the license tax herein provided. ART. 158, Sec. 15. The bonds shall be conditioned to be paid to the people of the state of California, with one or more sureties; who shall in any city numbering over ten thousand inhabitants be freeholders, and justify to the satisfaction of the court; and in such and in all other cases the security and bonds shall be approved by the court of sessions of the county, (1) and be deposited with the county treasurer. The bonds to be given by auctioneers shall be ten thousand dollars, if the business be conducted in any city containing more than ten thousand inhabitants, as reported by the census of one thousand eight hundred and fifty-two; and if conducted in any other place within the state, five thousand dollars. ART. 159, Sec. 16. An auctioneer may sell at any public or private sale any real or personal property. ART. 160, Sec. 17. The auctioneers doing business (in a city where the number of inhabitants exceeds ten thousand) shall, before making any public or private sale, pay into the hands of the county treasurer as a license tax, after depositing the bond required by this article, at the rate of one hundred and twenty-five dollars per quarter year, and shall continue such quarterly payments, and renew the bonds in manner provided by this act, on the first Monday of April in each year. Auctioneers doing business in a city or town of less than ten thousand and over five thousand inhabitants, shall pay a quarter license tax of one hundred dollars, and auctioneers doing business in a city or town of five thousand inhabitants or less, shall pay a quarterly license tax of thirty dollars. (1) See Supervisors. 2 ART. 161, Sec. 18. Upon payment of the amount required to be paid to the county treasurer for license tax, a receipt therefor shall be given by the treasurer, and a license be issued by the auditor, with approval of the court of sessions, and the auditor shall charge the treasurer with the amount so paid. (1) [Sec. 19 repealed by act of April 9, 1856. St. 1856, 116. Secs. 20, 21, 22, repealed by act of April 29, 1857. St. 1857, 342] ART. 162, Sec. 23. No person shall act as an auctioneer or be entitled to receive a license to authorize him to act as auctioneer, nor in any manner dispose of goods at public outcry, who has neglected or refused to pay the license and per centage due under the provisions of an act to provide revenue for the support of the government of this state, passed May eighteenth, one thousand eight hundred and fifty-three, or under this act due and unpaid which he has neglected or refused to pay. ART. 163, Sec. 24. Any auctioneer who shall neglect or refuse to make out and file his account of sales, and pay the duties provided in this article, and any other person than an auctioneer, licensed in accordance with this act, or a civil officer acting under the authority of any court of the United States, or of this state, who shall exercise the trade or business of an auctioneer, (except as herein after provided) by selling or offering for sale at auction any goods, merchandise, property or estate, real or personal, within this state, shall be liable to a penalty of not less than one hundred, nor more than five thousand dollars for every offense, to be recovered before any court of competent jurisdiction, or imprisonment, at the discretion of the court, not to exceed three calendar months; and it shall be the duty of the district attorney to prosecute for the recovery of the same, upon the information of any person, and the amount of the penalty to be paid into the county treasury, the one-half to the use of the county, and the remaining half to the use of the state, and a fee of fifty dollars in each case shall also be taxed as costs for the use of the district attorney. ART. 164, Sec. 25. In any city or town where there is no auctioneer, the sheriff or constable shall be ex officio auctioneer, and shall be allowed to sell any property, real or personal, at public auction, and shall pay one per centum upon the amount of all sales, within ten days after the day of such sales, into the county treasury, for state purposes, in manner and form as provided in section twenty-two of this act. The sheriff or constable making such sale, neglecting or refusing to pay into the county treasury within the time specified, the per centum tax thus due, shall be liable upon his official bond, in double the amount of tax thus due. Any auctioneer making false returns, shall be deemed guilty of the crime of perjury, and upon conviction thereof shall be fined in a sum not less than one thousand dollars, or more than five thousand dollars, and imprisonment in the penitentiary not less than six months or more than three years. Act of April 29, 1857, to provide Revenue for the Support of the Government. ART. 165, Sec. 49. All goods, wares, merchandise, and other species of personal property of whatever kind or nature, which shall at any time be offered or exposed for sale at public auction, or which shall be sold at private sale by any auctioneer, or by any partner, clerk or agent of any auctioneer, shall be subject each and every time such goods, wares, merchandise, or other species of personal property, are actually sold, either by any auctioneer, or by any partner, clerk or agent of an auctioneer, or by any other person for the account or benefit of any auctioneer, or for the account or benefit of any firm or partnership of which any auctioneer is a member, or in which he is interested, shall be subject to the payment of a duty of one-half of one per centum, which duty shall be levied upon the amount for which such goods, wares, merchandise, or other personal property are actually sold; the auctioneer and each member of the auction firm or partnership, so selling, or causing or allowing such selling, shall be subject to, and shall be liable for the payment of the duty hereby imposed for such selling; provided, however, (1) See Supervisors. |