7. An attorney is always entitled to his retaining fee in advance, unless he stipulates to the contrary. Id. 8. An agreement of counsel, for the continuance of a case not reduced to writing, will not be regarded by the court. Paralta v. Mariea, 3 Cal. 185. 9. An attorney in fact does not hold the character of trustee, and is not a necessary party to a suit to represent the interest of the principal. Powell v. Ross, 4 Cal. 197. 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 . 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 circumstances are made known to him the ratification is void. Id. character of those acts, and unless all the People v. Turner, 1 Cal. 143; Lord v. Sherman, 2 Cal. 498; Grant . White, Jan. T. 1856. ARTICLE IX.-AUCTIONEER.(SP1) 157. Who may become an auctioneer; how to qualify. 158. Bond, form and amount of. 159. What may be sold at auction. 160. License tax. 161. License, how obtained. 162. Who prohibited from acting as auctioneer. 163. Penalty, duty of district attorney; disposition of moneys; fee of district attorney. ARTICLE 167. Oath of auctioneer. 168. Penalty for violation of act. 169. Goods to be sold to the highest bidder. 170. Commissions. 171. Memorandum of sales to be kept. 172. Where no sales have been made, affidavit of fact to be made. 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. 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 outery, 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. act. 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 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. 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 interested 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 in 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. |