that full payment made by one of the parties hereby held liable shall release the others; and provided, further, that this section shall not be so construed as to require the payment of any duty upon the sale at auction of any property belonging to the United States or to this state, or upon property sold by any officer by virtue of any execution or order of any court. ART. 166, Sec. 50. The duties which this act imposes shall be ascertained as follows, viz: on the first Monday in each month, each and every auctioneer shall make out under oath and deliver, as is hereinafter required, a true and correct statement of all goods, wares and merchandise, or species of personal property sold, either at public or private sale by him, or by the firm or partnership of which he is a member, or by any partner, clerk, agent, or other person for him, or his firm, or partnership, or for the account, or by the authority of himself, or of his firm or partnership, or of any member thereof, during the last month preceding; and he shall in such statement particularly designate, 1. The actual sum for which all property at public auction was sold. 2. The actual sum for which all property sold at private sale was sold. 3. The duty that has accrued in favor of the state during said month. 4. The days on which each sale took place, and the sum or value of the property sold on each day, and the duty which accrued thereon in favor of the state. ART. 167, Sec. 51. On the said first Monday in each month, or within two days thereafter, each and every auctioneer shall present to the county auditor the statements which section fifty requires him to make; whereupon the auditor shall administer to such auctioneer the following oath: "You solemnly swear, that the account now presented by you contains a true and correct statement of all the goods, wares, merchandise, or other species of personal property, which you or the firm of which you are a member, or which any partner or clerk or agent of either yourself or of said firm, or any other person for you or for your firm, or by the knowledge, authority, consent, or on account of yourself, or of your firm, have sold, either at public auction or at private sale, during the month ending on the last day of 185-inclusive; and that no sales, other than those in this account stated, have been during that time, made by you, or by your partners, agents or clerks, or by any other person, at your usual place of business, and that no sales, intended, or in any manner likely to avoid or prevent the collection of duties imposed on sales by auction have been made elsewhere, with your knowledge or consent, or with the knowledge or consent of your firm, or for the benefit of yourself, of your firm, or of any member of it; and you further swear, that during the time mentioned in this statement, you have in all things to the best of your knowledge and belief conformed to all the laws regulating or licensing auctioneers, or imposing duty on sales at auction or by auctioneers." ART. 168, Sec. 52. Every person being an auctioneer, who shall sell any goods, and shall neglect or refuse to comply with, or who shall directly or indirectly violate, the provisions of section forty-nine, fifty and fifty-one, or either of them, of this act, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by fine of not less than one hundred dollars, nor exceeding five hundred dollars, or by imprisonment not exceeding six months, or by both such fine and imprisonment. Act of April 22, 1850, prescribing the Mode of Appointing Auctioneers and Defining their Duties. [Secs. 1, 2, 3, 4, 5, 6, 7, repealed by revenue act of 1854. St. 1850, 456; St. 1854, 95, C. L. 707.] ART. 169, Sec. 8. Goods sold at auction shall in all cases be struck off to the highest bidder, and when the auctioneer or owner, or any person employed by them, or either of them, shall be such bidder, they shall be subject to the same duties as if struck off to any other person; but this section shall not be construed to render valid any sale that would otherwise be deemed fraudulent and void. [Sec. 9, 10, 11, repealed by revenue act of 1854. St. 1850, 456; St. 1854, 95, C. L. 709.] ART. 170, Sec. 12. No auctioneer shall demand or receive a higher compensa tion for his services than a commission of five per cent., unless by virtue of a previous written agreement between him and the owner, agent, or consignee of the goods or effects to be sold. The commission on sales of real estate shall never exceed one-half of one per cent.; but by private agreement in writing, any rate of commission may be fixed on between the auctioneer and owner of the real estate to be sold. ART. 171, Sec. 13. Each auctioneer shall keep a book, in which he shall enter a memorandum of all sales, showing the name of the owner or owners of the goods sold, to whom sold, and the amount paid, and the date of each sale, which book shall at all times be open for the inspection of any person or persons inter ested therein. [Secs. 14, 15, 16, repealed by revenue act of 1854. St. 1850, 457; St. 1854, 95, C. L. 709.] ART. 172, Sec. 17. Every auctioneer, who, within the time limited for his accounting, shall have made no sales, public or private, of goods or effects liable. to auction duties, shall make and subscribe an affidavit of those facts, before some person competent to administer oaths, and file the same with the treasurer of his county, who shall forthwith transmit a certified copy thereof to the controller or state. ART. 173. Sec. 18. Every county treasurer shall, at all times, hold himself in readiness to pay to the treasurer of state, on his order, countersigned by the controller, all moneys in his hands, derived from auction sales to the date of such order, less his lawful commission for receiving and paying over said sum or sums of money; and all sums of money not paid over on the order of the treasurer of the state, as above provided, shall be paid into the state treasury by the county treasurer, at the time and in the manner of other state revenues. ART. 174, Sec. 19. All money paid into the state treasury, arising from auction sales under the provisions of this act, shall constitute a part of the general fund. ART. 175, Sec. 20. As a compensation for receiving and paying over money derived from auction sales, county treasurers shall receive three per centum on the amount thus collected and paid into the state treasury. ART. 176, Sec. 21. Every auctioneer who shall fail to comply with any of the duties enjoined on him by this act, shall be deemed guilty of a misdemeanor, and, on conviction in any court of competent jurisdiction, be fined for each offense, not less than fifty nor more than one thousand dollars, and shall be liable on his official bond, in a civil suit, for any damages sustained by any person injured by his official misconduct. See Revenue, Crimes and Punishments, Office, Conveyance. JUDICIAL DECISIONS 1. THE memorandum required by the statute of frauds, to be entered by an auctioneer in his sale book, must be made at the very time of the sale, or the vendee will not be bound by the contract. Craig v. Godfrey, 1 Cal. 415. 2. The memorandum of an auctioneer is looked upon as a contract between the vendor and vendee, reduced to writing and executed by their mutual agent, who ceases to be such agent after the sale is closed. Id. 3. Where the rights of parties are concerned a day will not be considered a unit, but inquiry may be made as to the very point of time when an act was done. Id. 4. An auctioneer who receives and sells stolen property, innocently, and in the ordinary course of business, is liable to the true owner for the conversion thereof; and that, too, without the previous prosecution and conviction of the felon, and although the auctioneer had paid over to the felon the money received on the sale of the goods, before notice that the goods had been stolen. Rogers v. Huie, 1 Cal. 429. 5. When an auctioneer sells a balance of goods, without specifying their quantity, he has a reasonable time to ascertain it; when this is done, and a bill of particulars is made out and delivered to the purchaser, who pays the purchase money, or a portion of it, the contract becomes executed, and the auctioneer will not afterwards be permitted to allege a mistake as to the quantity. Burgoyne v. Middleton, 4 Cal. 64. Heydenfeldt v. Picking, Oct. T. 1854. ARTICLE X.-BILLS OF EXCHANGE. ARTICLE 177. All written promises to pay money, negotiable 188. Damages on protested bills. like bills of exchange. 178. Note signed by agent, valid. 179. The word "person" to include corporations. 180. Action by payee and indorsee. 181. Notes payable to maker or order of fictitious person valid. 182. Acceptance, must be in writing. 183. Acceptance on separate paper, effect of. 184. Promise to accept, effect of. 185. Refusal to accept, what to be deemed. 186. Damages for not accepting. 187. Constructive acceptance, what to be deemed. 189. Interest on amount of protested bill. 190. Rate of exchange, when not to be considered în estimating amount due. 191. Amount expressed in a foreign currency, rate of 192. Damages on protest for non-acceptance. 194. Notice of dishonor of bill, how given. 196. Certain holidays to be regarded as Sunday; days Act of April 16, 1850, relative to Bills of Exchange and Promissory Notes. ARTICLE 177, Sec. 1. All notes in writing, made and signed by any person, whereby he shall promise to pay to any other person, or to his order, or to the order of any other person, or unto the bearer, any sum of money therein mentioned, shall be due and payable as therein expressed, and shall have the same effect and be negotiable in like manner as inland bills of exchange, according to the custom of merchants. ART. 178, Sec. 2. Every such note, signed by the agent of any person, under a general or special authority, shall bind such person, and shall have the same effect and be negotiable, as above provided. ART. 179, Sec. 3. The word "person," in the two last preceding sections, shall be construed to extend to every corporation capable by law of making contracts. ART. 180, Sec. 4. The payees and indorsees of every such note, payable to them or their order, and the holders of every such note payable to bearer, may maintain actions for the sums of money therein mentioned against the makers and indorsers of the same respectively, in like manner as in cases of inland bills of exchange, and not otherwise. ART. 181, Sec. 5. Such notes, made payable to the maker thereof, or to the order of a fictitious person, shall, if negotiated by the maker, have the same effect and be of the same validity as against the maker, and all persons having knowledge of the facts, as if payable to the bearer. ART. 182, Sec. 6. No person within this state shall be charged as an acceptor on a bill of exchange, unless his acceptance shall be in writing, signed by himself or his lawful agent. ART. 183, Sec. 7. If such acceptance be written on a paper other than the bill, it shall not bind the acceptor, except in favor of a person to whom such acceptance shall have been shown, and who, on the faith thereof, shall have received the bill for a valuable consideration. ART. 184, Sec. 8. An unconditional promise, in writing, to accept a bill before it is drawn, shall be deemed an actual acceptance in favor of any person who, upon the faith thereof, shall have received the bill for a valuable consideration. ART. 185, Sec. 9. Every holder of a bill, presenting the same for acceptance, may require that the acceptance be written on the bill: a refusal to comply with such request shall be deemed a refusal to accept, and the bill may be protested for non-acceptance. ART. 186, Sec. 10. The last four sections shall not be construed to impair the right of any person to whom a promise to accept a bill may have been made, and who, on the faith of such promise, shall have drawn or negotiated the bill, to recover damages of the party making such promise, on his refusal to accept such bill. ART. 187, Sec. 11. Every person upon whom a bill of exchange is drawn, and to whom the same is delivered for acceptance, who shall destroy such bill, or refuse, within twenty-four hours after such delivery, or within such other period as the holder may allow, to return the bill, accepted or non-accepted to the holder, shall be deemed to have accepted the same. ART. 188, Sec. 12. The rate of damages to be allowed and paid upon the usual protest for non-payment of bills of exchange, drawn or negotiated within this state, shall be as follows: 1. If such bill shall have been drawn upon any person or persons in any of the United States east of the Rocky Mountains, fifteen dollars upon the hundred upon the principal sum specified in such bill. 2. If such bill shall have been drawn upon any person or persons in any port or place in Europe or in any foreign country, twenty dollars upon the hundred upon the principal sum specified in such bill. ART. 189, Sec. 13. Such damages shall be in lieu of interest, charges of protest, and all other charges incurred previous to and at the time of giving notice of nonpayment; but the holder of such bill shall be entitled to demand and recover lawful interest upon the aggregate amount of the principal sum specified in such bill, and of the damages thereon, from the time at which notice of protest for nonpayment shall have been given, and payment of such principal sum shall have been demanded. ART. 190, Sec. 14. If the contents of such bill be expressed in money of account of the United States, the amount due thereon, and of the damages herein allowed for the non-payment thereof, shall be ascertained and determined without any reference to the rate of exchange existing between this state and the place on which such bill shall have been drawn at the time of the demand of payment, or of notice of non-payment. ART. 191, Sec. 15. If the contents of such bill be expressed in the money of account, or currency of any foreign country, then the amount due, exclusive of the damages payable thereon, shall be ascertained and determined by the rate of exchange, or the value of such foreign currency at the time of the demand of payment. ART. 192, Sec. 16. Where a bill of exchange shall be protested for non-acceptance, the same rate of damages shall be allowed on the protest for non-acceptance as provided in the last four sections, and shall be in lieu of interest, charges of protest, and all other charges incurred previous to and at the time of giving notice of non-acceptance; but the holder shall be entitled to recover interest upon the aggregate amount of the principal sum specified in the bill, and of the damages thereon, from the time at which notice of protest for non-acceptance shall have been given. ART. 193, Sec. 17. The damages allowed by this act shall be recovered only by the holder of the bill, who shall have purchased the same, or some interest therein, for a valuable consideration. ART. 194, Sec. 18. In all cases where a notice of non-acceptance of a bill of exchange, or non-payment of a bill of exchange, promissory note, or other negotiable instrument may be given, by sending the same by mail, it shall be sufficient if such notice be directed to the city or town where the person sought to be charged by such notice resided at the time of drawing, making or indorsing such bill of exchange, promissory note, or other negotiable instrument, unless such person, at the time of affixing his signature to such bill, note or other negotiable instrument shall, in addition thereto, specify thereon the post-office to which he may require the notice to be addressed. ART. 195, Sec. 19. Nothing in this act shall apply to bills of exchange, promissory notes or other negotiable instrument made or drawn before this act takes effect. Act of April 2, 1851, designating the Holidays to be observed in the Acceptance and Payment of Bills of Exchange and Promissory Notes. ART. 196, Sec. 1. The following days, namely: the first day of January, the fourth day of July, the twenty-fifth day of December, commonly called Christmas day, shall, for all purposes whatsoever as regards the presenting for payment or acceptance, and of the protesting and giving notice of the dishonor of bills of exchange, checks and promissory notes, made after the passage of this act, be treated and considered as is the first day of the week, usually called Sunday. Three days, commonly called days of grace, shall be allowed, except on sight bills or drafts; and any one of the holidays specified in this act coming within the three days of grace, shall be counted as one of such days. See Revenue. JUDICIAL DECISIONS. 1. It is no defense to a suit on a negotiable bill of exchange, that the suit is brought in the name of a mere agent or stranger. Lineker v. Ayeshford, 1 Cal. 75. 2. Nor is it, of itself, any defense to a suit on a negotiable bill of exchange, that the suit is brought in the name of a fictitious person. Id. 3. Notes given for a gaming consideration are valid in the hands of a bona fide indorsee. Haight v. Joyce, 2 Cal. 64. 4. Want of, or illegality of consideration, between the original parties, does not render a bill or note void in the hands of a bona fide indorsee, unless such bill or note be declared void by express statute. Id. 5. It is error, to allow a claim, the only evidence of which is a check drawn in favor of plaintiff by defendant. Headley v. Reed, 2 Cal. 322. 6. The legal presumption is that a check is drawn for money due from the drawer to the payee. Id. 7. One who puts his name upon a promissory note out of the usual course of regular negotiability, is not an indorser. He is a guarantor. Riggs v. Waldo, 2 Cal. 485. 8. The contract-the promissory note-imports a consideration; each one who writes his name upon it is a party to it, and each party an original undertaker. Id. 9. The liability of an indorser is a guaranty that he will pay, if the maker does not, upon presentment, if he receive due notice. The liability of the guarantor is the same as of the indorser, and he is entitled to all his rights stricti juris. Id. 10. A promissory note, made before the act of 1851, (which makes the fourth of July a non-juridical day,) fell due July first, and was payable on the fourth. Held that notice of non-payment on the third was premature, and ineffectual to charge the indorser. Toothaker v. Cornwall, 3 Cal. 144. 11. A payee has all of the last day on which his note falls due, to pay it, and a suit commenced for its recov ery on that day is premature. Witcombe v. Dodge, 3 Cal. 260. 12. Modern decisions have placed ordinary checks, i. e. payable at sight, and bills of exchange, on the same footing, excepting the difference which may arise from the custom of merchants. Minturn v. Fisher, 4 Cal. 35. 13. The second of a foreign bill of exchange, drawn here, payable at sight, was presented to the drawee, and payment being refused, was duly protested. Afterwards, and before suit was brought, the first of exchange was paid to the holder, with interest and cost of protest. Held, the drawer was released from payment of damages for the dishonor of the second of exchange. Page, Bacon & Co. v. Warner, 4 Cal. 395. 14. Sight checks are sight bills, and by our statute are not entitled to grace. But an order in the nature of a check payable at a future day is an inland bill of exchange, and the drawer is entitled to three days' grace, and notice of non-payment. In such a case presentation before the last day of grace, and the immediate commencement of suit on the day of demand and non-payment, are premature. Id. 15. Where notes are indorsed after maturity, they are subject to the same defenses as if in the hands of the indorser. Folsom v. Bartlett, 2 Cal. 163; Vinton v. Crowe, 4 Cal. 309. 16. A note indorsed before delivery to the payee is prima facie an accommodation indorsement. Clarke. Smith, 2 Cal. 605. 17. No right of action can accrue in favor of the drawee against the drawer of a draft, until it is paid. Wakeman v. Vanderbilt, 3 Cal. 380. 18. Notes payable in bank. Toothaker v. Cornwall, 4 Cal. 28. 19. It is not material on what part of a note a secondary promissor places his name, if the character of his liability is made to appear his rights are the same as those of indorser. Bryan v. Berry, Oct. T. 1856. 20. It is not so much the position of the party's name upon the paper which denotes his liability, (although it frequently does so,) but it is the intention with which he executes it, if such intention is made to appear by the note itself, which determines whether his liability is primary or secondary. Id. 21. Notice of demand and non-payment should be served personally upon the defendant, residing in the same city where the note was held, and service through the post-office was not effectual to charge him. Vance v. Collins, Oct. T. 1856. 22. The maker of a note, after judgment by default, is a competent witness for the indorser. Id. 23. If the defendant indorsed his name under the words "holden on the within note," he was an indorser entitled to notice of demand and non-payment. Id. 24. A note drawn with the rate of interest left blank cannot be filled up by the payee at his option, without showing the consent of the maker. If, however, it has passed into the hands of an innocent holder, it would bind the maker for the principal and interest, as expressed on its face. Fisher v. Dennis, Oct. T. 1856. 25. The assignment of a promissory note carries with it the mortgage given to secure it. Phelan v. Olney, Oct. T. 1856. 26. At common law promissory notes were not protestable securities; they are made so by our act, and, as a consequence, the protest of them must be attended with all the incidents belonging to foreign bills of exchange. Tevis v. Randall, Oct. T. 1856. 27. Pledge to secure the payment of notes. St. Losky v. Davidson & Co. Oct. T. 1856. 28. Where a place of payment is named in a bill of exchange or promissory note, it is necessary to allege and prove a demand at the place specified. Wild v. Van Valkenburgh, Jan. T. 1857. 29. Certificates of deposit have all the important incidents of promissory notes, and are alike negotiable. Welton v. Adams, 4 Cal. 37. 30. Where a bill shows upon its face that the party making it is acting for another, and is signed by him as agent, the agent is not personally liable. Sayre v. Nicholls, April T. 1857. 31. Where the drawer of a bill is teller in the house on which it is drawn, and informs the holder before maturity that it will not be paid, this fact excuses presentment and notice at maturity. Minturn v. Fisher, April T. 1857. Con Special indorsement-Grogan v. Ruckle, 1 Cal. 158. Dependent promises-Osborne v. Elliott, 1 Cal. 337. sideration-Fisher v. Salmon, 1 Cal. 413; Thorne v. Yontz, 4 Cal. 321. Payment, etc.-Lambert v. Slade, 3 Cal. 330; Van Norden v. Buckley, 5 Cal. 283. Partnership-Rich v. Davis, 4 Cal. 22. Declaration-Lightstone v. |