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 liabil ities, 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. 8.] 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. COBB, 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 thousand dollars, as specified in the class of license applied for, and further deponent says not. Subscribed and sworn to before me, this 18 day of 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. Another Form. PEDRO CHEVOYA. 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 the first part, for and in consideration of the sum of dollars, lawful money of the United States, to me paid by James Diggs, of, &c., of the second part, the receipt whereof is hereby acknowledged, have bargained and sold, and by these presents do grant and convey, unto the said party of the second part, his executors, administrators and assigns, the one equal, undivided half, of one hundred acres of barley, now growing on the rancho of E. F., near the town of Oro, aforesaid, one roan horse, and five thousand sheep belonging to me, and now in my possession, at the place last aforesaid; to have and to hold the same unto the said party of the second part, his executors, administrators and assigns, forever. And I do, for myself, my heirs, executors and administrators, covenant and agree, to and with the said party of the second part, his executors, administrators and assigns, to warrant and defend the sale of the said property, goods and chattels, hereby made, unto the said party of the second part, his executors, administrators and assigns, against all and every person and persons whomsoever. Witness my hand and seal this 21st day of May, A. D. 1859. CHARLES SWIFT. [L. S.] Bill of Sale of Registered or Enrolled Vessel. Know all men by these presents: That I, A. B., of, &c., owner of the bark or vessel called the "Paul Pry," of the burden of three thousand tons, or thereabouts, now lying at the port of for and in consideration of the sum of dollars, lawful money of the United States, to me paid, by C. D., of the place aforesaid, the receipt whereof I hereby acknowledge, have bargained and sold, and by these presents do bargain and sell, unto the said C. D., his executors, administrators and assigns, all the hull or body of said bark or vessel, together with the masts, bowsprit, sails, boats, anchors, cables, spars, and all other necessaries thereunto appertaining and belonging; the certificate of the registry of which said bark or vessel, is as follows, to wit: [copy certificate of registry in full:] To have and to hold the said bark or vessel, and appurtenances thereunto belonging, unto the said C. D., his executors, administrators and assigns, to his and their proper use, benefit and behoof, forever. And I do, for myself, my heirs, executors and administrators, covenant and agree, to and with the said C. D., his executors, administrators and assigns, to warrant and defend the said bark or vessel, and all the before mentioned appurtenances, against all and every person and persons whomsoever. In witness, &c., [as in foregoing.] See ASSIGNMENT, CHATTEL MORTGAGE, MINING, &c. CHAPTER IX. BONDS. A BOND is a written obligation, under seal, holding the party who executes it to some performance, duty, obligation, or pay ment. An obligation under seal to pay a sum of money at a certain time, is called a single bond; but there is usually a condition affixed, upon the performance of which the bond is to be void, that may be termed a conditional bond. It is usual to make the penalty of a bond twice the amount of the real debt, so as to cover interest and costs, as the party cannot recover beyond the amount expressed in the bond, even if the debt or damages secured should, when they come to be collected, amount to more than the penal sum of the bond. In California, a seal may be made by an impression on wafer, or wax, or any impressible substance, or on the paper itself, or by writing a scroll with the pen. The legal effect, at common law, of a bond, as differing from an obligation of like purpose not under seal is, that the seal is held to import that a consideration existed for giving the bond. But by the statute of California, bonds are placed upon the same footing with other non-negotiable instruments for the payment of money or goods, so that if suit be brought on a bond which was given without consideration, or where the consideration has failed in whole or in part, the defendant may plead and prove in defence such want or failure of consideration.1 The statute referred to, embraces within its provisions, bonds, due-bills, and other instruments of writing not negotiable, made by any person, or body politic or corporate, for the payment of money, or articles of personal property, or the payment of money in personal property, or acknowledging any such indebtedness. 1 Wood's Dig. art. 192 and 201; Comstock v. Dennio. Jan. Term, 1859. |