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 ex officio auctioneer, and shall be permitted to sell any property, real or personal, at public auction; and for any delinquency, as ex 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.' JUDICIAL DECISIONS. 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 done, and it is acquiesced in by the purchaser, they cannot avoid it.' An auctioneer who receives and sells stolen property innocently, and in the ordinary course of his business, is liable to the true owner for the conversion thereof." And he is thus liable, although the felon has not been prosecuted and convicted, and although he had paid over to the felon the money received on the sale of the goods, before notice that the goods had been stolen." A sale of land at auction, where no note or memorandum of sale is made by the auctioneer, and no writing exists between the parties, is void by the statute of frauds.' FORMS. Auctioneer's Bond. Know all men by these presents, that we, S. L. Jones, G. L. J. Bendixen and Wm. M. Randell, copartners doing business as auctioneers, in the city and county of San Francisco, state of California, under the name and firm of Jones and Bendixen, as principals, and C. De Ro, as surety, are held and firmly bound unto the people of the state of California, in the sum of five thousand dollars, lawful money of the United States of America, to be paid to the people of the state of California, for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents, sealed with our seals and dated the tenth day of May, one thousand eight hundred and fifty-nine. The condition of the above obligation is such, that if the said S. L. Jones, G. L. J. Bendixen and Wm. M. Randell, copartners and auctioneers, as aforesaid, shall faithfully perform their duties, as auctioneers, within the city and county of San Francisco, state of California, in accordance with the provisions of an act, entitled "An Act to provide and define their duties and liabilities, Approved April 18th, 1859," and the law governing in such cases; then this obligation to be void, otherwise to remain in full force and effect. S. L. JONES. [L. s.] GEO. L. J. BENDIXEN. [L. S.] Signed and delivered in the presence of W. H. V. CROUISE. Justification of the above Surety. State of California, City and County of San Francisco. } ss: Before me, H. A. Cobb, a Notary Public in and for said city and county of San Francisco, personally came Charles De Ro, the surety on the within bond, who, being duly sworn, did depose and say, that he is worth the sum of ten thousand dollars, over and above all his debts and liabilities, in unencumbered property within the aforesaid city and county and state, which may be levied on, and is not exempt from execution and forced sale. CHS. DE RO. Subscribed and sworn to before me, this sixth day of June, A. D. 1859. H. A. Cовв, Notary Public. [L. S.] Auctioneer's Application for a State and County License, under Act of the Legislature, approved April 18th, 1859. To the Treasurer of the City and County of San Francisco: The undersigned A. B., transacting business in the city and county of San Francisco, as auctioneer, having duly filed the bond required by the act above named, hereby makes application for a license of the class, for the quarter commencing on 18 and ending on the the day of day of 18 Oath. } ss: A. B., Auctioneer. State of California, City and County of San Francisco. Personally came before me, A. B., of the firm of auc tioneer, doing business in the state, city and county aforesaid, who, being duly sworn, says, that the average receipts per month of the said firm on account of sales during the quarter next preceding the 18 amounted to less than day of thousand dollars, as specified in applied for, and further deponent says not. Subscribed and sworn to before me, this 18 . the class of license A. B. day of Treasurer. CHAPTER VIII. BILL OF SALE. THE term bill of sale is applied to a written instrument which is the evidence of an act of sale, of goods and chattels. A distinction exists between an assignment and a bill of sale, in this, that the term assignment applies to transfers of real as well as personal estate, and to transfers of personal estate made verbally or by deed or other writing. A chattel mortgage is in form a bill of sale, coupled with a condition that the property may be redeemed and returned to the owner, upon his paying the debt to secure which the mortgage was given, together with interest and expenses. A bill of sale not under seal is insufficient to convey a mining claim. Many principles of law and various statutory provisions concerning assignments, apply also to bills of sale, and reference is therefore made to the chapters on ASSIGNMENT, and also that on CHATTEL MORTGAGE. FORMS. Bill of Sale-simple Form. In consideration of two hundred and fifty dollars to me in hand paid by Bruno Bernal, I do hereby sell and deliver to him my Alazan horse, branded C, on the left hip. San José, June 10, 1859. PEDRO CHEVOYA. Another Form. Received of John Pike $1,000, in payment of five thousand fruit-trees I have sold and delivered to him, this 4th day of May, 1859. F. PREVAUX. Bill of Sale of Goods and Chattels. Know all men by these presents: That I, Charles Swift, of the town of Oro, in the county of Yuba, and state of California, of 17 Cal. 152. |