tioneer, and make sales by auction according to law, for the term of one year from the date of such appointment; and the person so appointed may exercise such trade or occupation in any county of the state during the term. [72 v. 66, § 3.] Tit. V, Ch. 2. paid for license SEC. 4225. The court, or any judge making the appointment, How sum to be shall determine the amount to be paid by each auctioneer licensed, af which amount shall in no case exceed the sum of five hundred dollars; and every auctioneer appointed under the provisions of this chapter, Bond. before he receives a license to enter upon the duties of his appointment, shall give bond to the state with sufficient surety, to be approved of and accepted by the court granting his license, in the penal sum of one thousand dollars, conditional for the faithful performance of his duty and for the payment of the duties imposed by law, and that accrue on sales by him made, which bond shall be filed with the treasurer of the county; he shall pay to such treasurer the sum of money required of him by the court for such license, and take duplicate receipts for the same, one of which receipts shall be delivered to the auditor of the county, who shall file the same in his office, and certify the payment to the clerk of the court making the appointment, and upon such certifi- Clerk to issue cate the clerk shall issue license in proper form under the seal of such court, granting to the auctioneer so appointed full power and authority to set up and expose to sale by auction, property and effects, according to his appointment, for which the clerk shall be entitled to one dollar as his fee, to be paid by the auctioneer. [72 v. 66, § 4.] license. SEC. 4226. All property and effects exposed to sale by public auc- Duties on articles tion, with the exceptions mentioned in sections forty-two hundred and sold. twenty-two and forty-two hundred and twenty-three, shall be subject, each time the same is struck off, to duties at the following rates, to be calculated on the sums for which the property or effects so exposed to sale are struck off, namely: 1. All sugar, molasses, coffee, teas, spices, salt, fish, oil, and wines, at the rate of seventy-five cents for every hundred dollars. 2. All vessels and boats, including engines, tackle, apparel, and furniture belonging to boats and vessels, at the rate of one dollar on every hundred dollars. 3. All queensware, glassware, and ardent spirits, at the rate of one dollar and fifty cents for every hundred dollars. 4. All dry goods, hardware, and cutlery, and all other articles not included in the foregoing classes, at the rate of two dollars on every hundred dollars. [38 v. 50, $ 5.] to highest bidder. SEC. 4227. All property and effects sold by auction shall be sold Sales to be made to the highest bidder, and when the auctioneer, or any person employed by him, or either of them, is such bidder, the goods 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. [38 v. 50, § 6.] SEC. 4228. All property and effects sold by an auctioneer on com- Articles sold at mission, whether by auction or at private sale, shall be subject to the private sale subduties enumerated in section forty-two hundred and twenty-six, and if a 34227. In the sale of real estate by auction, a mistake of the auctioneer in entering the name of the owner of the property in the memorandum of sale, will be corrected in equity. Pugh v. Cheseldine, 11 O. 109. Where a sale at auction is announced to be positive, it is an act of fraud on the part of the vendor, or his agent, to employ by-bidders to keep up the price for his benefit. Walsh v. Barton, 24 O. S. 28. A person who, being in the business of selling merchandise at regular retail prices, sells a portion of them at his store-room by public outcry, making known to the persons present that he will sell the property offered for sale at his regular retail price, and no other, is not, within the meaning of the statute, exercising the trade or occupation of auctioneer. Crandall v. State, 28 O. S. 479. ject to duties. Tit. V, Ch. 2. Goods sold by partner of auctioneer at public or private sale subject to duty. Penalty against auctioneer for farming out his privilege. Quarterly ac count. Form of oath to quarterly ac count. person other than a licensed auctioneer, on the day and at the place where any public auction is held, sells at private sale any property or effects liable to auction duties, every person so offending shall forfeit and pay to the state of Ohio a sum equal to the price for which such property or effects were sold. [38 v. 50, $ 7.] SEC. 4229. If an auctioneer associates with him, in any manner whatever, any person who derives profit or advantage from the sale of any property or effects by auction, or associates himself, in any manner whatever, with a commission merchant or other person and derives profit or advantage from the sale of any goods or articles on commission which would be subject to auction duty, if sold by auction, all such goods or articles sold on commission, at private sale, by the person or persons with whom such auctioneer is associated, or by any person in his and their employ, shall be subject to the duties enumerated in section fortytwo hundred and twenty-six. [38 v. 50, § 8.] SEC. 4230. An auctioneer who farms out his office to another, or derives profit or advantage from any sales by auction that are not made by himself personally, shall forfeit and pay to the state, a sum not exceeding one thousand dollars, nor less than one hundred dollars, with cost of prosecution, and shall moreover forfeit his license; but in case of sickness or necessary absence of any auctioneer, any sale appointed by him may be made by his known clerk. [72 v. 66, § 9.] SEC. 4231. Every licensed auctioneer shall make out in writing a quarterly account, dated on the first days of March, June, September, and December, in the year for which he has been appointed, and shall therein state minutely and particularly 1. The sums for which property has been sold, at every auction held by him from the date of his license, or from the date of his last quarterly account, the names of the persons on whose account the sale was made, the day of sale, and the amount of each day's sale. 2. The amount of all other sales made by himself, or any other person associated with him, or by any person in his or their employ, of property or effects liable to auction duties, under any of the provisions of this chapter, the days on which such sales were made, and the name of the person making such sale. 3. The amount of duties chargeable under the provisions of this chapter on all sales public and private, of property and effects subject to duties under any of the provisions of this chapter. [38 v. 50, $ 10.] SEC. 4232. Every such account shall be verified by a declaration of the auctioneer, in the words following, viz: "I, A. B., do solemnly declare, that the account now exhibited by me, and to which I have subscribed my name, contains a full and true statement and exhibit of all the property and effects of every class and description, sold or struck off or bought in by me at public sale, or sold by me at private sale, on commission, or sold, struck off, or bought in, as aforesaid, by others, in my name, or under my direction, or for my benefit, and so far as I know or believe of all goods and effects sold by any person in my employment, or connected with me in business, and subject to duties according to the provisions of [the chapter of] the revised statutes regulating auctions, within the time stated in this account, and that the full amount of duties, chargeable according to law, on all such property and effects, is therein truly stated"; which declaration shall be indorsed on the account, and shall be subscribed and sworn to, or affirmed by the auctioneer making it, before an officer authorized to administer oaths, who shall certify the same; the auctioneer shall, within fifteen days from the date of such account, deliver the same to the county treasurer, and a duplicate copy thereof to the county auditor, and shall at the same time S$ 4233-4238. AUCTIONS. pay to the said treasurer the amount of duties accruing on the sales mentioned in the account; and it shall be the duty of the county auditor to enforce the provisions of this chapter as to the collection of such duties. [38 v. 50, $ 10.] Tit. V, Ch. 2. or neglect to return quarterly SEC. 4233. An auctioneer who neglects or refuses to exhibit his Penalty for failure quarterly account, and deliver the same properly verified as aforesaid, or neglects or refuses to make payment of the duties required by this account. chapter, to the treasurer of the proper county, within the time aforesaid, shall pay a fine not exceeding one thousand dollars, with costs of prosecution, and shall forfeit his license, and be liable for all such duties to be recovered by action, in the name of the state. [38 v. 50, $ 40.] income. SEC. 4234. All moneys raised by way of tax, penalty, or other- Disposition of wise, under the provisions of this chapter, shall be paid into the treas- duties and other ury of the proper county, for which duplicate receipts shall be taken by the person making such payment, one of which receipts he shall deliver to the auditor of the county who shall file the same in his office, and charge the treasurer therewith; and it shall be the duty of each and every county treasurer with whom any money may be deposited, in conformity with the provisions of this chapter on or before the fifteenth day of January in each year, to transmit to the auditor of state a correct account of all moneys so by him received, and to pay to the treasurer of state all such moneys not otherwise appropriated by law, after deducting therefrom two per centum, to be computed on the amount received and paid over by such treasurer, as his compensation. [38 v. 50, $ 11.] SEC. 4235. The sheriff or other officer who collects and receives any fine or penalty imposed under the provisions of this chapter shall pay the same to the treasurer of the proper county, within ten days after [38 v. 50, § 12.] receiving the same. Sheriff to pay over moneys col lected by him. officers for neg Penalty against SEC. 4236. If any county treasurer, sheriff, or other officer neglect to perform the duties required by this chapter, he shall forfeit and pay c to the state the sum of one hundred dollars over and above the amount of money which ought to have been paid over by such county treasurer, sheriff, or other officer. [38 v. 50, $ 13.] SEC. 4237. It shall be the duty of the auditor of each and every county, with whom any auctioneer or other person may have filed the receipt or receipts of any county treasurer, according to the provisions of this chapter, to transmit a full and accurate statement of all such receipts to the auditor of state, on or before the fifteenth day of January, in each and every year. [38 v. 50, $ 14.] mit statement to Auditor to trans auditor of state. SEC. 4238. All fines, penalties, and forfeitures, imposed by and How fines, etc., incurred under the provisions of this chapter, may be recovered before recovered. the court of common pleas of the county in which the offense has been committed, by action in the name of the state. [38 v. 50, § 15.] Tit. V, Ch. 3. FENCES. $$ 4239-4242. How expenses of making partition 4247. Where suit to be brought when fence whol 4248. Remedies provided not cumulative. 4251. Liability of owner of trespassing animal 4254. 4255. Penalty for violation of provisions with respect to hedge fence. Where actions with respect to hedge fence to be brought. 4245. Jurisdiction of trustees when partition fence on township line. 4246. Where suit to be brought relating to fence on township or county line. SEC. 4239. The owner, or lessee for three or more years, of land fences adjusted. adjoining a fence, of whasoever material constructed, in all respects such as a good husbandman ought to keep, erected by the owner, or lessee for one or more years, on the line of his land, who makes or causes to be made an inclosure adjoining such fence, so that such fence answers the purpose of inclosing his land, shall pay the owner of such fence already erected one-half the value of so much thereof as serves as a partition fence, to be adjudged by the township trustees of the township in which the fence is situate; and the amount so adjudged, if not paid, may be recovered by the owner of such fence, with costs of suit; but nothing in this chapter contained, shall apply to the inclosure of lots in municipal corporations. [56 v. 8, § 1.] Who to keep partition fences in repair. When party entitled to remove his share of partition fence. Duty of township trustees with respect to viewing partition fence. SEC. 4240. The owners, or lessees for one or more years, of lands inclosed with fences, shall keep up and maintain in good repair all partition fences between their own and the next adjoining inclosures, in equal shares, so long as both parties continue to occupy or improve the [38 v. 4, $ 2.] same. SEC. 4241. When the inclosures of two or more persons are divided by a partition fence of any kind, and either of the parties thinks proper to vacate his part of such inclosure, or to make a lane or passage between such adjoining inclosures, such person may remove his share or part of such partition fence on giving six months' notice, in writing, of such intention, to the party owning or occupying the adjoining inclosure, or to his agent, if such party is not a resident of the county. [38 v. 4, § 6.] his SEC. 4242. When any controversy arises about the rights of own ers of a partition fence, and their obligation to build and maintain the same in good repair, either party may apply to the trustees of the township in which such fence is situate, who, on such application, shall, after not less than ten days' written notice to all parties interested in the title or possession of the premises, or the construction or repair of such fence, proceed to view the fence, assign in writing to each party equal share thereof to be by him kept in repair, so as to be in all respects a good and substantial fence; the assignment shall also specify the time within which such fence, and each of its parts, shall be constructed or repaired, and shall be binding upon the parties and all succeeding occupants of the premises for one year thereafter, and until a new ment is made. [70 v. 246, § 3; 42 v. 4, § 2.] assign 24240. A part owner of a partition fence, who fails to keep in repair the part assigned to him, whereby stock from the adjacent inclosure breaks and enters upon his lands, is without remedy; and if the stock doing damage in such case be breachy or unruly, the party damaged, in order to recover therefor, must show that the defect in his part of the fence was not the proximate cause of the damage. Phelps v. Cousins, 29 O. S. 135. SS 4243-4248. FENCES. portion of party in Tit. V, Ch.3. SEC. 4243. If either party fail to comply with the assignment, the Right to build aggrieved party may, upon fifteen days' notice in writing, to the party default, and rein default, requesting his compliance, build or repair that portion of such cover therefor. fence required in the assignment to be built or repaired by the party in detauit, and present to such party an itemized account of the expense thereof, including labor and material, and if the same be not paid on demand, either party may again call the trustees together, who shall examine the fence, and estimate the value of such labor and material, and give a written statement thereof to each of the parties; and on failure of the party indebted to pay the award, the other party may collect the same, together with the costs of such additional view, by action in any court of competent jurisdiction, and in such action the assessment of the trustees shall be held to be prima facie evidence of the value of such labor and material. [70 v. 246, § 3.] had. SEC. 4244. At any time after the expiration of one year from the When and how redate of such assignment, any party interested in such partition fence assessment may be who considers himself aggrieved by the proceedings of the trustees in making the assignment, may apply to the trustees for a re-examination and re-assignment; and the same notice shall be given and proceedings had as provided for in section forty-two hundred and forty-two, and such re-assignment shall be recorded, and copies thereof made and served, and it shall have the same binding force, operation, and effect as the assignment in the said section provided for. [38 v. 4, § 4.] partition fence on SEC. 4245. When a partition fence in controversy is on a town- Jurisdiction of ship or county line, the trustees of the adjacent townships shall have trustees where concurrent jurisdiction, and the trustees of either of such townships township line. may be called to perform the duties in this chapter imposed in regard to partition fences; and either party may, if he think proper, call also the trustees of the other township, in which case they shall act jointly, but the record shall be made in both townships. [38 v. 4, § 4; 70 v. 246, § 3.1 line. SEC. 4246. If a partition fence, or an inclosure, or any part Where suit to be brought relating thereof, is on the line of a township, or on the line of or in two or more to fence on towntownships of the same or different counties, all suits prosecuted under ship or county the provisions of this chapter may be brought before a justice of the peace in the township in which the defendant resides, or if there be no justice residing therein or he is interested in the event of the suit, or stands in the relation of father, father-in-law, son, son-in-law, brother, brother-in-law, guardian, ward, uncle, nephew, or cousin to either of the parties, the action may be brought in either of such townships; and in such case, the justice before whom such action is brought shall issue process against the defendant, directed to any constable of the township in which such justice resides, which process the constable shall be authorized to serve and return, and the defendant shall be compelled to answer thereto, and such other proceedings shall be had therein as if the defendant resided in the township where the action was commenced. [38 v. 4, § 15.] SEC. 4247. When the fence or inclosure is situate wholly within one township, all suits brought under this chapter before a justice of the peace shall be brought in the township in which the defendant resides, unless the case comes within one of the exceptions specified in the next preceding section, in which case suit may be brought in any adjoining township of the same county, and process shall be issued, served, and returned, and further proceedings had thereon, as provided for in said section. [38 v. 4, § 16.] Where suit to be brought when within township. fence wholly vided not cumu SEC. 4248. If a person commence proceedings under this chapter Remedies proto obtain redress, as herein provided, and prosecute the same to final lative." |