is a resident and freeholder within this state, and is worth double the sum in the said undertaking specified as the penalty thereof, over and above all his debts and liabilities, exclusive of property exempt from execution. . X. Subscribed and sworn to, before me, this tenth day of September, A. D. 1859. BEVERLEY C. DUER, Deputy Clerk.

County of San Francisco, ss: Y. Z., one of the sureties, whose name is subscribed to the above undertaking, being duly sworn, deposes and says, that he is a resident and householder within this state, and is worth double the sum specified in the said undertaking as the penalty thereof, over and above all his debts and liabilities, exclusive of property exempt from execution. Y. Z. Subscribed and sworn to, before me, this tenth day of September, A. D. 1859. BEVERLEY C. DUER, Deputy Clerk.

Endorsement on above Undertaking. Approved this tenth day of September, A.D. 1859. John S. HAGAR, Judge. Filed this tenth day of September, A. D. 1859. B. C. DUER, Dep. Clerk.

Order of Arrest.

4th District Court, M. N., et al.

ainst *:

To the Sheriff of the County of San Francisco:

The above-named plaintiffs having commenced an action in the District Court of the fourth judicial district of the state of California, against the above-named defendant, and it duly appearing to me, from affidavits submitted on the part of said

laintiff that a sufficient cause of action exists, and that the case is one of those mentioned in section seventy-three of the act entitled, “An Act to regulate proceeding: in civil cases in the Courts of Justice of this State,” passed April 29, 1851, and the necessary undertaking having been given, I, the undersigned, judge of the said District Court, by virtue of the authority in me vested by law, do order and require you, the said sheriff of the county of San Francisco, forthwith to arrest the said defendant, if he may be found in your county, and hold him to bail in said action, in the sum of five hundred dollars, and that you return this order, with your proceedings thereon, to the clerk of the said District Court, on the fifteenth day of September, 1859.

Dated, San Francisco, the tenth day of September, A. D. 1859. JoHN S. HAGAR, Judge.

Proceedings to obtain Discharge from Imprisonment under
Civil Process.


A. B. In the District Court of the Twelfth Judicial Dis(j) trict, City and County of San Francisco.

To A. B., the plaintiff above named: You will take notice, that I will apply to the Hon. Edw. Norton, judge of the District Court of the twelfth judicial district, in and for the city and county of San Francisco, in the court room of said court, in the city hall of said city and county, on Saturday the eighteenth day of June, A. D. 1859, at ten o’clock of that day, or as soon thereafter as counsel can be heard, for the purpose of obtaining a discharge from imprisonment, under the provisions of the act of April 22d, 1850, for the relief of persons

imprisoned on civil process. Respectfully yours p C. D., defendant.

Oath of Imprisoned Debtor.

I, , do solemnly swear that I have not any estate, real or personal, to the amount of fifty dollars, except such as is by law exempted from being taken in execution; and that I have not any other estate now conveyed or concealed, or in any way disposed of, with design to secure the same to my use, or to defraud my creditors: so help me God.

A, B Order for Discharge. co, [Title of Court as in notice.]

Application having been made to me by C. D., the defendant above named, to be discharged from imprisonment under the provisions of the act of April 22d, 1850, for relief of persons imprisoned under civil process, and the said C. D. being by me examined under oath, concerning his property and his ability to pay the judgment for which he is committed, and it appearing to me that the said C.D. is entitled to his discharge from impris. onment, it is therefore ordered that the said C. D. be discharged from custody, if he is imprisoned for no other cause.

Date. EDw. Norton.

Judge of the District Court, 12th Judicial District.

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By the act of 1859 it is provided that any citizen of the state may become an auctioneer for the county in which he resides, on giving bonds for the faithful performance of his duties, with one or more sureties in the sum of five thousand dollars, payable to the people of the state of California, to be approved by the county judge and filed with the county clerk. In addition to filing such bond the auctioneer must obtain a license quarterly from the county treasurer, rated as follows: First class. Auctioneers whose average monthly sales shall amount to one hundred thousand dollars and upward, shall constitute the first class, and shall pay a license of four hundred dollars per quarter. Second class. Those between seventy-five thousand and one hundred thousand, three hundred dollars per quarter. Third class. Those between fifty thousand and seventy-five thousand, two hundred dollars per quarter. Fourth class. Those between thirty thousand and fifty thousand, one hundred and twenty-five dollars per quarter. Fifth class. Those between twenty thousand and thirty thou. sand, one hundred dollars per quarter. Sirth class. Those between ten thousand and twenty thousand, sixty dollars per quarter. Seventh class. Those less than ten thousand, twenty-five dollars per quarter. The said act of 1859, also contains the following provisions: SECTION 5. No section of this act shall be so construed as to require a license, to be obtained for the selling of any goods at public sale that may belong to the United States, or to this state,

or upon property sold by virtue of any process issued by any state court, or United States court. SEc. 6. Every auctioneer applying to the county treasurer for a renewal of his license, under the provisions of [this] act, shall accompany the application with a statement, under oath, which shall set forth that his average receipts per month, on account of sales during the preceding quarter, do not exceed the amount specified in the class of license for which he applies, and any auctioneer, already established in business, applying for a license, as provided in this act, for the first quarter after its passage, shall take out a license in proportion to his average monthly sales for the preceding quarter, and it is hereby made the duty of such treasurer to provide blank forms of affidavit for that purpose, and administer the oath required to such applicants, without charge. SEc. 7. No auctioneer shall be permitted to transfer his license to any other person for any part of the time, or at any time during the period for which his license may have been issued; nor shall any auctioneer be permitted to use his license for the purpose of transacting an auction business in more than one store or specified place of business. SEc. 8. Any auctioneer who shall fail to comply with the provisions of this act, or any person acting as an auctioneer, without first having complied with its provisions, shall be deemed guilty of a misdemeanor, and on conviction thereof in any court of competent jurisdiction, shall be fined not less than fifty, nor more than five hundred dollars for each and every article sold or offered for sale; and in default of payment of such fine, shall be imprisoned in the county jail for a period not exceeding ninety days, at the discretion of the judge before whom the case may be tried. Sec. 9. In any city or town where there is no auctioneer, the sheriff, or a constable, shall be ea officio auctioneer, and shall be permitted to sell any property, real or personal, at public auction; and for any delinquency, as ea officio auctioneer, he shall be liable on his official bond. SEc. 10. It shall be the duty of every auctioneer, who shall sell any animal of the horse kind, or any mules, to keep a book, in which he shall register the name of each and every person bringing or offering any horse or mule to be sold, and the name of the person purchasing such horse or mule, together with the date of such sale or sales, and a description of each horse or mule so sold, together with the marks and brands. Said book shall be a public record, and subject to the inspection of any person desiring to inspect the same.

SEC.11. 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.

SEc. 15. Provides for the repeal of all acts or parts of acts conflicting with this act, except as to rights vested under the former acts.

Whenever goods shall be sold at auction, and the auctioneer shall, at the time of sale, enter in a sale book a memorandum, specifying the nature and price of the property sold, the terms of the sale, the name of the purchaser and the name of the person on whose account the sale is made, such memorandum shall be deemed a note of the contract of sale within the meaning of the statute of frauds.”


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, and he must therefore sign the memorandum at the time of sale. Where the sale is made in the forenoon, and the memorandum not made until the evening of the same day, it is too late.”

When goods are sold at auction and a bill of particulars made out and delivered to the purchaser, and the money or a portion of it paid, it becomes an executed contract, and the vendor will not be permitted to set up a mistake as to the quantity sold.”

Auctioneers who sell a balance without specifying quantity, have a reasonable time to ascertain such balance, and when so

1 wood's Dig, art.402. * 4 Cal. 64. * Craig v. Godfrey, 1 Cal. 475.

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