^3C 
 
 Cornell University Law Library 
 
 The Moak Collection 
 
 PURCHASED FOR 
 
 The School of Law of Cornell University 
 
 And Presented February 14, 1893 
 
 IN nenoRY of 
 
 JUDGE DOUQLASS BOARDMAN 
 
 FIRST DEAN OF THE SCHOOL 
 
 By his Wife and Daughter 
 A. M. BOARDMAN and ELLEN D. WILLIAMS 
 
Cornell University Library 
 
 KF 920.B32 
 
 A practical treatise on the law of aucti 
 
 3 1924 018 845 010 
 
The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018845010 
 
PRACTICAL TREATISE 
 
 LAW OF AUCTIONS; 
 
 FORMS AND DIRECTIONS TO AUCTIONEERS. 
 
 BY 
 
 JOSEPH BATEMAN, LL.D., 
 
 OF LINCOLN S INN, BAERISTER-AT-LAW, 
 
 SIXTH EDITION, BY OLIVER SMITH AND PATRICK F. EVANS, ESQS., OF THE 
 INNER TEMPLE, BARRISTERS-AT-LAW. 
 
 FIRST AMERICAN EDITION, 
 WITH NOTES AND LAWS OF THE SEVERAL STATES. 
 
 BY 
 
 HENRY N. SHELDON, 
 
 OF THE BOSTON BAR, AUTHOR OF THE LAW OF SUBROGATION. 
 
 BOSTON: 
 SOULE AND BUGBEE, 
 
 1883. 
 
Copyright, i88j. 
 By SOULE & BUGBEE. 
 
 J. S. Gushing & Co., Printers, Boston. 
 
 Presswork by John Wilson & Son, Cambridge. 
 
PREFACE TO THE AMERICAN EDITION. 
 
 It has been attempted to cite the American decisions 
 bearing upon the law of auctions, and upon the topics 
 discussed in this work in connection therewith, with suffi- 
 cient illustrations from the general law of sales of personal 
 property and of vendors and purchasers of real estate to 
 show fully the general rules applicable to this particular 
 mode of sale, in the different cases in which it is adopted, 
 but without trenching upon those broad subjects any further 
 than has seemed to be necessary for that purpose. Besides 
 these referenc^, which have enlarged the original table of 
 cases to more than threefold, I have given in an Appendix 
 the statutes of the different states and territories regulating 
 the licenses of auctioneers and the conduct of sales by auc- 
 tion, so far as these have been accessible to me. The space 
 for these additions, without materially increasing the thick- 
 ness of the book, has been gained by somewhat enlarging 
 the size of the page, adopting a closer mode of printing, and 
 omitting many English statutes which seemed rather to 
 have been inserted for the purpose of giving general infor- 
 mation to the English reader than because they had any 
 particular bearing upon the law of auctions. I have also 
 omitted such tables and forms as, though doubtless valuable 
 in England, did not seem to me adapted to serve any useful 
 purpose in this country. My additions have been distin- 
 guished from the original work by being enclosed in brackets. 
 
 H. N. S. 
 February 28, 1883. 
 
PREFACE. 
 
 This book is intended to furnish a statement of the law 
 relating to auctions, and to serve as a guide to auctioneers 
 in their business. 
 
 The present edition is the sixth. The first three editions 
 were prepared by the late Dr. Joseph Bateman, of Lincoln's 
 Inn : the fourth and fifth by Mr. Rolla Rouse, of the Middle 
 Temple. The first edition was published in 1838, the third 
 in 1846, the fifth in 1874. 
 
 The work has now been brought up to date and almost 
 entirely recast and rewritten. 
 
 The following are some of the particulars in which this 
 edition differs from its predecessor : — 
 
 1. The division of the treatise into three parts, "Pre- 
 
 liminary Regulations," " Incidents of Sale," and 
 "Posterior Regulations," has been abandoned. 
 
 2. A short chapter upon interpleader has been added ; 
 
 while the chapter headed " Of the Preliminaries of 
 Sale under a Distress for Rent," has been expanded 
 into one upon special kinds of sales by auction, 
 comprising sales by the Chancery Division of the 
 High Court of Justice, sales under County Court 
 process, sales under distresses for rent, and sales 
 under the Pawnbrokers Act, 1872, the Innkeepers 
 Act, 1878, and the Summary Jurisdiction Act, 1879. 
 
 3. The leading cases have been embodied in the text, 
 
 instead of abstracts of them being given in the 
 appendix. * 
 
Vi PREFACE. 
 
 4. The forms and precedents, which before were mostly 
 distributed over the different chapters, have been 
 printed together as Part II. 
 The present editors owe their best thanks to their friend 
 Mr. C. A. Whitmore, of the Oxford Circuit, for carefully 
 reading the proofs of this edition during its progress through 
 the press, and to Mr. E. Tewson and Mr. T. Debenham, of 
 the firm of Messrs. Debenham, Tewson, Farmer and Bridge- 
 water, auctioneers, for valuable information and suggestions. 
 
 Inner Temple, 1882. 
 
CONTENTS. 
 
 PAGE 
 
 Preface iii 
 
 Table of Cases Cited xi 
 
 Introductory Chapter i 
 
 PART I. 
 
 [The references are to the starred pages.] 
 CHAPTER I. 
 
 THE AUCTIONEER'S LICENCE 7 
 
 CHAPTER II. 
 
 THE AUCTIONEER'S AGENCY IN GENERAL, AND PARTICULARLY HIS AUTHOR- 
 ITY TO SELL 20 
 
 CHAPTER III. 
 
 APPRAISEMENTS AND VALUATIONS . . 38 
 
 CHAPTER IV. 
 PARTICULARS AND CATALOGUES 44 
 
 CHAPTER V. 
 
 CONDITIONS OF SALE 83 
 
 CHAPTER VT. 
 
 THE SALE Ill 
 
 CHAPTER VII. 
 
 PUFFERS ; RESERVED BIDDINGS, ETC 13I 
 
 CHAPTER VIII. 
 
 THE CONTRACr, AND THE FORMALITIES REQUIRED BY THE STATUTE OF 
 
 FRAUDS 143 
 
 CHAPTER IX. 
 
 THE DEPOSIT .... I?! 
 
 CHAPTER X. 
 
 ENFORCING THE CONTRACT 1 84 
 
VIU . CONTENTS, 
 
 CHAPTER XI. PAGE 
 
 INTERPLEADER 212 
 
 CHAPTER XII. 
 
 THE AUCTIONEER'S COMMISSION AND RIGHT TO INDEMNITV . . . 2I9 
 
 CHAPTER XIII. 
 
 THE AUCTIONEER'S RESPONSIBILITY FOR THE PROPERTY AND FOR THE SALE 
 
 PROCEEDS 231 
 
 CHAPTER XIV. 
 
 SPECIAL ICINDS OF SALES BY AUCTION, viz. i 
 
 I. Sales by the Chancery Division of the High Court of Justice . . 237 
 
 II. Sales by order or under process of a County Court . . . 250 
 
 III. Sales under distraints for rent 252 
 
 IV. Sales under the Pawnbrokers Act, 1872 282 
 
 V. Sales under the Innkeepers Act, 1878 284 
 
 VI. Sales under the Summary Jurisdiction Act, 1879 .... 285 
 
 PART II. 
 
 -*- 
 
 FORMS AND PRECEDENTS (3) 
 
 ) S] 
 II. ADVERTISEMENTS 
 
 I. AUTHORITY TO SELL 329 
 
 330 
 
 III. PARTICULARS AND CATALOGUES 33 1 
 
 IV. CONDITIONS 330 
 
 V. RESERVED BIDDINGS 365 
 
 VI. AGREEMENTS 366 
 
 Vll. auctioneer's COMMISSION, ETC ,-g 
 
 VIII. SALES BY THE COURT ,g, 
 
 IX. DISTRESS FOR RENT ,gg 
 
 X. MISCELLANEOUS FORMS ,qj 
 
 APPENDIX. 
 
 APPENDIX A.— STATUTES . . . . 
 
 397 
 
 List oi' Forms and Precedents . ,-, 
 
 1 . 475 
 
 Index to the Treatise and Notes ^-n 
 
 (a) See list on page 475. 
 
TABLE OF CASES CITED. 
 
 [The references are to the starred pages.] 
 
 Abbey v. Dewey, 142. 
 Abbott V. Allen, 202. 
 
 V. American Ins. Co., 4. 
 
 u. Flagg, 248. 
 Abeel v. Radcliff, 150, 151. 
 Aberaman Ironworks v, Wickens, 1 80. 
 Acker v. Phoenix, 52. 
 
 V. Witherell, 264, 268. 
 Acland v. Gaisford, 104. 
 Acraman v. Morrice, 163. 
 Adams, In the goods of, 153. 
 
 V. Bourne, 21. 
 
 V. Grane, 24, 112. 
 
 V. Griffin, 196. 
 
 V. Humphrey, 24. 
 
 V. Keiser, 252. 
 
 V. McMillan, 20, 23, 128, 152, 
 
 155. 159, 195. 196- 
 V. Morrison, 4. 
 V. Scales, 151, 154, 157. 
 Adams Express Co. v. Trego, 21. 
 Adamson «». Jarvis, 35, 119, 193, 210, 
 
 228, 229. 
 .(Etna Express Co. «<. N.W. Iron Co., 21. 
 Agricultural Association v. Brewster, 
 
 250. 
 Ainsworth v. Greenle, 48. 
 Aldborough, Earl of, v. Trye, 4. 
 Alder v. Boyle, 224. 
 Alderson v. Maddison, 197, 198. 
 Aldred v. Constable, 251. 
 Aldrich v. Sharp, 248. 
 V. Wilcox, 86. 
 Alexander v. Gardner, 187. 
 V. Gibson, 119. 
 V. Herring, 192. 
 V. Merry, 144. 
 V. Miller, 124, 250. 
 Alexandria Bank v. Taylor, 249. 
 Alger V. Curry, 279. 
 AUardo v. Greasert, 149, 163. 
 Allegro, The Monte, 29, 119. 
 Allen's Estate, 197, 198. 
 Allen V. Agnew, 252. 
 
 V. Atkinson, 85, 95. 
 V. Booker, 198. 
 v. Brown, 34. 
 V. Chambers, 197. 
 V. East, 245. 
 
 Allen V. Flicker, 279. 
 V. Gault, 248. 
 V, Hopkins, 211. 
 V. Pink, 165. 
 V. Richardson, 52. 
 V. Ranson, 239. 
 V. Stephanes, 121, 250. 
 V. Taylor, 75, 76. 
 AUis V. Billings, 124. 
 
 ■u. Sabin, 248. 
 Alna V. Plummer, 127, 154, 155, 195. 
 Alven V. Bond, 237. 
 Alvord V. Beach, 240. 
 Alwood V. Mansfield, 252. 
 Ament v. Brennan, 252. 
 American Ins. Co. v. Oakley, 37, 85, 241, 
 
 249. 
 Ames V. Downing, 4. 
 
 V. Lockwood, 241, 248. 
 V. Port Huron Co., 4, 126. 
 Amite City v. Clements, 7. 
 Amy Warwick, The, 219. 
 Anderson v. Austin, 241. 
 
 ■u. Burnett, 59, 116. 
 ■u. Calloway, 216. 
 ■u. Chick, 20, 154, 197. 
 V. Clark, 250. 
 V. Coble, 170. 
 V. Foulke, 248. 
 V. Green, 4. 
 Andrew v. Andrew, 109. 
 V. Newcomb, 147. 
 V. Robinson, 234. 
 Andrews v. Essex Ins. Co., 54. 
 V. Hobson, 4. 
 V. Keith, 87. 
 V. Pritchett, 251. 
 V. Russell, 279. 
 V. Scotton, 237, 248. 
 Angell V. Hadden, 216. 
 Annesley v. Ashurst, 244. 
 
 V. Muggridge, 182, 183, 216. 
 Anon., 64, 217, 237. 
 Ansley v. Carlos, 121. 
 Anson v. Towgood, 248, 362. 
 Anthony v. Leftwick, 198. 
 Aplin V. Gates, 217. 
 Applegarth v. Russell, 248. 
 Applegate v. Moffitt, 119. 
 
TABLE OF CASES. 
 
 Appleton Bank v. McGilvray, 29. 
 Arbuckle v. Nelms, 252. 
 Archer v. Baynes, 153. 
 Arden v. Brown, 150. 
 Argall V. Raynor, 193. 
 Arledge v. Rooks, 103. 
 Armor v. Cochrane, 5, 237. 
 Armstrong, Appeal of, 5. 
 zi. Campbell, 4. 
 V. Humphreys, 193. 
 V. Jackson, 237. 
 V. Toler, 227. 
 V. Vroman, 25, 143. 
 Armytage, In re, 63. 
 Arnold, In re, 51, 81, 107. 
 
 V. Brown, 4, 28, 126. 
 V. Delano, 187, 189. 
 V. Richmond Iron Works, 124. 
 Arrington v. Gary, 222. 
 Artcher v. Zeh, 164. 
 Ashbee v. Cowell, 248. 
 Ashurst V. Ashurst, 86. 
 Aspinall v. Balch, 184. 
 Astey V. Emery, 145. 
 Astor V. Union Ins. Co., 165. 
 Atcheson v. Hutchison, 251. 
 Atherton v. Newhall, 161, 163. 
 Atkins V. Byrnes, 258. 
 V. Colby, 188. 
 I/. Howe, 98, 108. 
 Atkinson v. Fell, 38, 40. 
 V. Horridge, 60. 
 V. Richardson, 248. 
 Attack V. Bramwell, 265. 
 Attenborough v. St. Katherine's Dock 
 
 Co., 213, 216, 217, 218. 
 Att.-Gen. v. Day, 244. 
 
 V. Life and Fire Ins. Co., 22. 
 V. Ray, 117, 190, 210, 229. 
 V. Taylor, 9, 119. 
 Attwood V. Small, 51, 55. 
 Atwood V. Chapman, 61, 118. 
 
 V. Cobb, 151, 152. 
 Aubrey v. Fisher, 92. 
 Audenreid v. Betteley, 32. 
 Aultman z'. Theirer, 108. 
 Aurich V. Wolf, 252. 
 Aurora Agricultural Society v. Paddock, 
 
 Austin V. Austin, 248. 
 Avery v. Halsey, 35, 230. 
 Ayles V. Cox, 72. 
 Ayres v. Mitchell, 192. 
 Azemar v. Casella, 205. 
 
 Babcock v. Deford, 33. 
 V. Lawsun, 192. 
 V. Perry, 241, 245. 
 Bacchus V. Moreau, 194, 237. 
 Bach V. Meats, 262. 
 V. Owen, 164. 
 
 Backenstoss v. Stabler, 132. 
 Backer v. Hamilton, 88. 
 Bacon v. Eccles, 161. 
 V. Frisbie, 118. 
 V. Simpson, 167. 
 Baglehole v. Walters, 60. 
 Bagueley v. Hawley, 194. 
 Baham v. Bach, 131. 
 Bailey v. Bailey, 241. 
 
 V. Chadwick, 222. 
 V. Chapman, 226. 
 V. Harris, 9. 
 V. Le Roy, 150. 
 V. Ogden, 150, 157. 
 V. Robertson, 4. 
 V. Sweeting, 159. 
 V. Wright, 258. 
 Bain v. Brown, 126. 
 •v. Clark, 258. 
 V. Fothergill, 203. 
 Bainbridge v. Downie, 208. 
 V. Kinnaird, 94. 
 Baines v. McGee, 4. 
 Bainway v. Cobb, 93. 
 Baird v. Matthews, 59, 117. 
 
 V. Williams, 22. 
 Baker v. Casey, in. 
 V. Clepper, 251. 
 V. Cuyler, 164. 
 V. Dening, 154. 
 V. Drake, 282. 
 V. Jameson, 143. 
 V. Sanderson, 165. 
 Balance v. Loomis, 251. 
 Baldey v. Parker, 149, 161. 
 Baldwin v. Kerlin, 151. 
 V. Rosseau, i. 
 V. Salter, 94, 103. 
 ■u. Walker, 255. 
 V. Williams, 150. 
 Ball V. Carew, 4. 
 V. DivoU, 26. 
 Ballard v. Anderson, 251. 
 V. Shutt, 197. 
 V. Way, 52, 77, 80. 
 Ballingall v. Bradley, 150. 
 Baltimore v. Reynolds, 22. 
 Baltimore Ins. Co. v. Dalrymple, 282. 
 Baltzen v. Kicolay, 33, 144. 
 Bamford v. Shuttleworth, 176, 1 82. 
 Banister, In re, 87. 
 Bank v. Dubuque R.R. Co., 4. 
 
 of Columbia ; . Patterson, 22. 
 of Commerce v. Lanahan, 241. 
 of Kentucky v. Adams Express 
 
 Co., 37. 
 of Orleans v. Torrey, 4. 
 of Scotland v. Watson, lig. 
 Banks v. Ammon, 240. 
 Bannerman v. White, 116, 205. 
 Bannister v. Hyde, 265. 
 
TABLE OF CASES. 
 
 XI 
 
 Bannon v. Warfield, 21. 
 
 Bantleon v. Smith, 275. 
 
 Baptist Church v. Bigelow, 1 54, 160. 
 
 Barbee v. Perkins, 248. 
 
 Barclay v. Bates, 29, 154, 155. 
 
 V. Tracy, 189. 
 Barickman v. Kuylcendall, 152, 159, 198. 
 Baring v. Corrie, 18. 
 
 V. Moore, 25, 246. 
 Barker v. Cox, 71. 
 
 V. Greenwood, 172. 
 Barkhamstead v. Case, 202. 
 Barkley v. Screven, 237. 
 Barlow v. Lambert, 165. 
 
 V. Osborne, 4, 9, 248, 
 
 V. Standford, 248. 
 Barnard v. Cave, 62. 
 
 V. Duncan, 196. 
 
 ■u. Lee, 94, 103. 
 
 Barnes v. District of Columbia, 22. 
 
 V. Morris, 193. 
 Barnet v. Smith, 1 74. 
 Barnett v. Wheeler, 84. 
 Barnwell v. Harris, 79. 
 Barraud v. Archer, 80. 
 "B^xxfA, Ex parte, 109, 180. 
 Barrett v. Bath Paper Co., 142. 
 
 V. Baxton, 124. 
 
 ■V. Goddard, 187, 189. 
 Barrington v. Alexander, 4. 
 Barron v. Mullin, 240, 248. 
 Barry v. Coombs, 150, 151, 153. 
 Bartlett, In re, 248. 
 
 ■V. Blanton, 85, 95. 
 
 V. Purnell, 23, 89. 
 
 V. Sullivan, 252. 
 
 V. Tucker, 33. 
 Bascomb v. Beckwith, 81. 
 Bash V. Hill, 226. 
 Bashore v. Whisler, 29, 119. 
 Baskett v. Cafe, 28. 
 Bass V. Walsh, 145. 
 Bassett v. Brown, 126. 
 
 -d. CoUis, 60. 
 Bates V. Delevan, 105. 
 Battershall v. Davis, 193. 
 Baxendale v. Scale, 51. 
 Baxter v. Brand, 104. 
 Baynes v. Smith, 266. 
 Beach v. Branch, 35, 230, 259. 
 Beal V. Blair, 195. 
 Beale v. Hayes, 109. 
 
 V. Seiveley, 85. 95, 202. 
 Beals V. Olmstead, 59, 117. 
 Beaman v. Buck, 197. 
 Bear v. Hayes, 1 70. 
 Bearfield v. Stevens, 37. 
 Beaubien v. Poupard, 4. 
 Beaufort, Duke of, v. Neeld, 34. 
 Beaumont v. Duke, 82. 
 Beavan v. Delahay, 258. 
 
 Beavan v. McDonnell, 124, 180. 
 
 Bebee v. De Baun, 112. 
 
 Beck V. Denbigh, 268. 
 
 Becker v. Dupree, 253. 
 
 Beckley v. Munson, 164. 
 
 Beckwith v. Kouns, 85, 95. 
 
 Beeman v. Buck, 59, 117. 
 
 Beer v. London and Paris Hotel Co., 
 
 150, 151, 207. 
 Beers v. Crowell, 150. 
 Beeson v. Beeson, 4, 239. 
 Beioley v. Carter, 87. 
 Belcher v. Smith, 217. 
 Belchier v. Parsons, 231. 
 Bell V. Owen, 144. 
 V. Potter, 258. 
 V. Taylor, 251. 
 V. Webb, 5. 
 Bellamy v. Bellamy, 4. 
 Beller v. Block, 25, 208. 
 Bellinger v. Union Burial Ground So- 
 ciety, 82. 
 Belloc V. Rogers, 255. 
 Bellows V. Cheek, 192. 
 ■V. Russell, 121. 
 Belworth v. Hassell, 72. 
 Bend v. Hoyt, 176. 
 Benedict v. Jones, 76. 
 V. Smith, 33. 
 Benjamin v. Andrews, 1 6. 
 
 V. Saratoga Ins. Co., 105, 185. 
 Benner's Estate, 225. 
 Bennett, Ex parte, 4, 28, 125. 
 V. Bayes, 275. 
 V. Beidler, 64, 66. 
 V. Brumfitt, 153. 
 ■V. Carter, 26. 
 V. Matson, 248. 
 V. Smith, 140. 
 V. Womack, 78. 
 Bennett's Branch Improvement Co.'s 
 
 Appeal, HI. 
 Bent V. Cobb, 20, 128, 144, 157. 
 Bentall v. Burn, 162. 
 Bentley, Ex parte, 93. 
 V. Craven, 55. 
 V. Hoak, 215. 
 Benton v. Shreve, 249. 
 
 V. Wood, 251. 
 Benz V. Hines, 142, 248. 
 Berchog v. Walker, 132. 
 Berry v. Gibbons, 4, 9, 250. 
 
 V. Griffith, 252. 
 Bertenshaw v. Moffitt, 250. 
 Bessent v. Harris, 23. 
 Best V. Hamand, 96, 109. 
 V. Hayes, 215, 216. 
 V. Osborne, 59. 
 Bethel v. Bethel, 85, 248. 
 
 V. Sharp, I2i. 
 Bethune v. Farebrother, 1 10. 
 
Xll 
 
 TABLE OF CASES. 
 
 Bevan v. Byrd, 251. 
 
 V. Crooks, 267. 
 Bexwell v. Christie, 25, 36, 50, 116, 
 
 125, 131, 135, 137, 141. 
 Beyer v. Fenstermacher, 258. 
 Bibb V. Bishop Cobb's Orphan Home, 
 
 248. 
 Bickerton v. Burrell, 207. 
 Bicknall v. Barnes, 144. 
 Biddle v. Biddle, 268. 
 
 V. Bond, 35. 
 Bigelow V. Judson, 258, 
 Bigg V. Strong, 22. 
 
 V. Whisking, 148, 161. 
 Biggs V. Brae, 178. 
 
 V. Brickell, 250. 
 Bigley v. Risher, 3. 
 Bill V. Bament, 163. 
 Bilhngs V. Morrow, 21. 
 Billington v. Forbes, 248. 
 Binks V, Rolceby, 79. 
 Birch V, Dawson, 93. 
 Bird V. Anderson, 272. 
 V. Bass, 124. 
 V. Boulter, 20, 26, 29, 128, 155, 
 
 156, 157. 
 V. Richardson, 151. 
 Bisbee v. Hall, 26. 
 Bishop V. Biyant, 280. 
 
 V. Small, 59. 
 Bishop of St. Albans v. Battersby, 
 
 62. 
 Bissell V. Balcom, 145. 
 Bissett V. Caldwell, 266. 
 Bixley v. Mead, 251. 
 Blachford v. Cole, 254. 
 
 V. Kirkpatriclc, 84. 
 Black V. Walton, 70, 240. 
 Blackbeard v. Lindigren, 246. 
 Blackburn v. Scholes, 28. 
 Blackmore v. Barker, 248. 
 V. Shelby, 239. 
 Blackwood v. Borrowes, 21. 
 V. Leeman, 201. 
 Blagden v. Bradbear, 152, 159. 
 Blake v. Deliesseline, 275. 
 -V. Phinn, 72. 
 1/. Williams, 237. 
 Blakeley v. Calder, 240. 
 Elakely v. Bennecke, 207. 
 Elakeney v. Ferguson, 198. 
 Blakey v. Abert, 241, 
 Blanchard v. Moore, 197. 
 Blanche v. Bradford, 266. 
 Blanco v. Foote, 250. 
 Bland v. Bowie, 192, 203. 
 Blann v. Smith, 94. 
 Blanton v. Morrow, ill. 
 Blauvelt v. Ackermann, 4. 
 Bleakley v. Smith, 154. 
 Bleecker v. Franklin, 143. 
 
 Eleecker v. Smith, iii. 
 
 Bleeker u. Graham, 171, 176, 180, 212, 
 
 216. 
 Blenkhorn v. Penrose, 53, 86, 183. 
 Blenkinsop v. Clayton, 164. 
 Blethen v. Towle, 93. 
 Blew V. McClelland, 105, 184. 
 Bligh V. Brant, 149. 
 Bliss V. Whitney, 93. 
 Blood V. French, 29, 119. 
 V. Goodrich, 166. 
 V. Hayman, 4. 
 Bloomer v. Bernstein, 195. 
 Blore V. Sutton, 29. 
 Blossom V. R.R. Co., 30, 39, 84, 85, 116, 
 
 247. 
 Blount V. Mitchell, III. 
 Bloxam v. Saunders, 186, 187, 188. 
 Bloxsome v. Williams, 27. 
 Blythe v. Lovingood, I2I. 
 V. Speake, 59, 117. 
 Boar V. McCormick, 64. 
 Boardman v. Spooner, 157, 159, 192. 
 Bodin V. McCloskey, 79. 
 Bodine v. Exchange Ins. Co., 29. 
 Boehlert -'. McBride, 5. 
 Boerum v. Schenck, 4. 
 Bogart T. O'Regan, 26, 208. 
 Bogert V. Bogert, 240. 
 Boggs V. Hargrave, 240. 
 Bohm V. Dunphy, 252. 
 Boinest v. Leignez, 29, 201. 
 Bolden v. Brogden, 59. 
 Bolgiano v. Cook, 237. 
 Bolivar v. Zeigler, 240. 
 Bolton V. Duncan, 254. 
 
 V. London School Board, 96. 
 Bond V. Clark, 59, 117, 164. 
 
 ■u. Jackson, 64. 
 
 V. Railisey, 202. 
 
 V. Watson, 239. 
 Bondurant v. Crawford, 170. 
 Bonner v. Baker, 44, 48. 
 Bonnewell v. Jenkins, 158. 
 Booraem v. Wells, 4. 
 Boorman v. Nash, 20I. 
 Booth V. Alcock, 75. 
 
 i/. Webster, 250. 
 Boothby v. Scales, 119. 
 Borrowman v. Rossell, 166. 
 Bos V. Helsham, 341. 
 Bosseau v. O'Brien, 21. 
 Boston & Maine R.R. Co. v. Bartlett,i03. 
 Bost, Ex parte, 248. 
 Bostwick V. Atkins, 4. 
 
 z'. Leach, 147. 
 V. Lewis, 51, 107, 
 Bottoms V. Mithvin, 84, 87. 
 Boudinot v. Small, 132. 
 Boughton V. Standish, 51. 
 Boulter, lit re, 70. 
 
TABLE OF CASES. 
 
 XIU 
 
 Eoulton V. Reynolds, 276. 
 Bousfield V. Hodges, 27, 244. 
 Bowen v. Evans, 244. 
 Bower v. Cooper, 70. 
 Bowers v. Beck, 170. 
 Bowlby V. Bell, 149. 
 Bowles V. Rogers, 109. 
 
 V. Round, 78, 138. 
 Bowman v. Conn, 145. 
 
 V. Hyland, 98. 
 Bowser v. Cessna, 195. 
 Box V, Stanford, 197. 
 Boyce v. Granby, 190. 
 
 V. Washburn, 147, 
 Boyd V. Blankman, 4. 
 V. Hawkins, 4. 
 V. Hood, 167. 
 Boyman v. Gutch, 180. 
 Boynton v. Hazleboom, 53, 74. 
 
 V. Veazie, 163. 
 Bozza V. Rowe, 143, 237. 
 Brabin v. Hyde, 164. 
 Brackenridge v. Holland, 4. 
 Bradbury v. White, 45. 
 Braddick v. Smith, 217. 
 Bradford v. Bush, 28, 58, 119. 
 V. Hamilton, 248.J 
 V. Limpus, 251. 
 ' v. McConihay, 92. 
 
 •V. Manley, 166. 
 Bradley v. Bosley, 57, 107. 
 
 V. Holdsworth, 149. 
 
 V. Kingsley, 121. 
 
 V, Rea, 207. 
 Bradshaw v. Bennett, 55. 
 Brady v. Todd, 119. 
 Braine jJ-^Hunt, 216. 
 Braithwaite v. Cooksey, 258. 
 Brand v. Brand, 1 64. 
 Brandeis v. Neustadtl, 197. 
 Branner v. Hardy, 193. 
 Brasher v. Cortlandt, 248. 
 Brashier v. Gratz, 103. 
 Bratt V. Ellis, 33. 
 Bray v. Gunn, 34. 
 Bray ton v. Delaware, 170. 
 Brealey v. Collins, 362. 
 Brent v. Green, 20, 154, 155. 
 
 ■u. Leigh, 144. 
 Brentwood Brick & Coal Co., In re, 185. 
 Brett V. Clowser, 46, 52, 119. 
 Brewster v. Edgerly, 109. 
 
 V. Saul, 208. 
 
 V. Taylor, 163. 
 Bricker v. Hughes, 147. 
 Bridger v. Penfield, 248. 
 Bridges v. Garrett, 1 73. 
 Brigham v. Evans, 4. 
 
 V. Palmer, 35. 
 Bright V. Pennywit, 248. 
 Brisben v. Wilson, 278. 
 
 British Columbia Bank v. Page, 252. 
 Britten v. Handy, 250. 
 Broadway Savings Bank v. Vorster, 34. 
 Broadvveil v. Broadwell, 165. 
 Brock V. Jones, 143. 
 
 V. Rice, 28, 115. 
 Brodie v. Seagraves, 121. 
 Bromley v. Coxwell, 29. 
 V. Elliott, 164. 
 Brooke, Lord, n. Rounthwaite, 51, 68, 
 
 321. 
 Brookes v. Drysdale, 310. 
 Brooks v. Jameson, 34. 
 V. StoUey, 47. 
 V. Wilcox, 252. 
 Brotherline v. Swires, 28. 
 Brothers v. Brothers, 4. 
 Broughton v. King, 250. 
 
 V. Silloway, 28, 173, 174. 
 Brown !<. Arundell, 25, 112, 266, 267. 
 
 V. Bellows, 93, 152. 
 
 V. Brown, 165. 
 
 V. Castles, 53, 55, 74. 
 
 V. Duncan, 10, 263, 264. 
 
 V. East, 183. 
 
 V. Fay, 268. 
 
 V. Gilliland, 85, 95. 
 
 V. Gilmor, 248. 
 
 11. Glenn, 264. 
 
 V. Haff, 85, 86. 
 
 V. Hall, 162. 
 
 V. Hartford Ins. Co., 124. 
 
 ■V. Haven, 45. 
 
 V. Isbell, 248. 
 
 V. Jones, 146. 
 
 V. Lamphear, 54. 
 
 ■0. Montgomery, 118. 
 
 ■V. Oakshott, 249. 
 
 V. Parrish, 64. 
 
 V. Redwine, 116, 247. 
 
 •v. Sanborn, 145. 
 
 V. Shevill, 266. 
 
 V. Sims, 267. 
 
 V. Slater, 165. 
 
 V. Staton, 26, 36. 
 
 V. Tutttle, 59, 117. 
 
 V. Wallace, 66, 86, 194, 248. 
 
 1'. Weaver, 4. 
 Browne v. Byrne, 165. 
 ■u. Ferrea, 251. 
 Browning, Matter of, 240. 
 
 V. Howard, 203. 
 Brownlie v. Campbell, 86. 
 Brubaker v. Jones, 88. 
 Bruce v. Westervelt, 112. 
 Brumfit V. Morton, 73, 77, 78, 79. 
 Brunning v. N.O. Canal Co., 82. 
 Bryan v. Hunt, 166. 
 
 V. Reed, 85, 95. 
 Bryant v. Busk, 105. 
 
 V. Crosby, 58, 116, 147. 
 
XIV 
 
 TABLE OF CASES. 
 
 Bryant v. Moore, 119. 
 Bryce v. Parker, 59, 1 1 7. 
 Bubier v. Bubier, 197. 
 Buchanan v. Parnshaw, 205. 
 
 7'. Tracy, 250. 
 Buck V. Dowly, 197. 
 
 V. Pickwell, 147, 14S, 152. 
 Buckey v. Snouffer, 268. 
 Buckingham v. Osborne, 161. 
 
 V. Wesson, 4. 
 Buckley v. Briggs, 121. 
 
 V. Furniss, 189. 
 Buckmaster v. plarrop, 20, 198. 
 Buckner v. Real Estate Bank, 165. 
 Bukup V. Valentine, 258. 
 Bull V. plorlbeck, 269. 
 
 V. Price, 224, 225. 
 Bullard v. Green, 249. 
 BuUen v. Denning, 67. 
 BuUer, Case of, 259. 
 
 V. Harrison, 35, 235. 
 Bullock V. Adams, 103. 
 Bunger v. Roddy, 260. 
 Bunts V. Cole, 121. 
 Burdit V. Burdit, 59, 117. 
 Burgess v. Eastham, 237. 
 Burgin v. Burgin, 193. 
 Burgoyne v. Middleton, 126. 
 Burke v. Haley, 20, 23, 144, 153, 154. 
 Burket v. Bpude, 252. 
 Burne v. Richardson, 254. 
 Burnell v. Brown, 29, 78. 
 Burnett %'. Anderson, 216. 
 V. Denniston, 76. 
 Burnside v. Weightman, 93. 
 Burr V. Van Buskirk, 260. 
 Burrough tK Skinner, 35, 176. 
 Burrow v. Scammel, 71. 
 Burton v. Ferguson, 241, 
 Busey v. Hardin, 246, 248. 
 Bush I'. Cole, 25, 129. 
 Bushell V. Wheeler, 162. 
 Bustard's Case, 97. 
 Butler V. O'Hear, 85. 
 Butts V. Edwards, 278. 
 Buxton, Ex parte^ 125, 
 
 V. Rust, 159. 
 Byasse v. Reese, 148. 
 Byers v. Fowler, 250. 
 Byrd v. Turpin, 202. 
 Byrne v. Jansen, 58, 59, 116. 
 V. Van Tienheven, 30. 
 Bywater v. Richardson, 89, 115, 205. 
 
 Caeot v. Haskins, 154. 
 Cadman v. Hoiner, 52. 
 Cadwalader, Appeal of, 4. 
 
 V. Tindall, 267. 
 Cain, The Tubal, 219. 
 V. McGuire, 148. 
 Caine v, Horsfall, 223. 
 
 Calcraft v. Roebuck, 56, 57. 
 
 Caldwell v. Blake, 37. 
 
 Calkins v. Lockwood, 145, 163. 
 
 Callaghan v. McCredy, 104. 
 
 Callander v. Oehlrichs, 231. 
 
 Calverly v. Williams, 54, 57. 
 
 Calwell V. Boyer, 237. 
 
 Camberwell & South London Building 
 
 Society v. Holloway, 72. 
 Cameron v. Durkheim, 282. 
 
 V. Logan, 29. 
 Campanari v. Woodburn, 32. 
 Campau v. Godfrey, 250. 
 Campbell v. Baker, 249. 
 
 V. Campbell, 198. 
 
 V. Fleming, 192. 
 
 V. Frankera, 118. 
 
 V. Gardner, 239. 
 
 V. Gittings, 193. 
 
 V. Ingraham, 201. 
 
 V. Johnson, 4, 69. 
 
 V. Johnston, 1 75. 
 
 V. Ketcham, 124. 
 
 V. McElevey, 112. 
 
 V. McLain, 4. 
 
 V. Pennsylvania Ins. Co., 4. 
 
 V. Smith, 248. 
 
 V. Solomons, 217. 
 
 V. Swan, 28. 
 
 V. Walker, 239. 
 Canedy v. Marcy, 54. 
 Cannon v. Jenkins, 4. 
 V. Kelly, 225. 
 V. Mitchell, 45. 
 Cany v. Fatten, 124. 
 Capehart v. Dowery, 240, 248. 
 Capel V. Thornton, 26. 
 Capon V. Roberts, 109. 
 Capp V. Topham, 228. 
 Carbine v. Morris, 250. 
 Cardell v. Bridge, 1 70. 
 Carew v. Otis, 176. 
 Carew's Estate Act, In re, 121. 
 Carley v. Wilkins, 59, 117. 
 Carmack v. Masterson, 151, 155. 
 Carmicheal v. Vandebur, 118. 
 Carmody v. Brooks, 66, 
 Carney v. Carney, 250. 
 Carpenter v. Blandford, 180. 
 
 V. Brown, 103. 
 
 V. Le Count, 219, 225. 
 
 V. Simmons, 251. 
 Carr v. Duval, 45, 52. 
 V. Glasscock, 250. 
 V. Holiday, 124. 
 Carriger v. Whittington, 32. 
 Carrington v. Herrin, 211. 
 Carroll v. Dawson, 238. 
 V. Powell, 152. 
 V. Tuscaloosa, 7. 
 Carrols v. Cox, 199. 
 
TABLE OF CASES. 
 
 XV 
 
 Carson's Sale, 249. 
 Carter v. Beck, 202. 
 
 V. Black, 59, 116. 
 V. Hamilton, 45, 192. 
 V. Thompson, 4. 
 V. Toussaint, 163. 
 V. Walker, 240. 
 V. Walters, 256. 
 V. Waugh, 237. 
 Cartmell v. AUard, 234. 
 Cartwright v. Hateley, 233. 
 
 V. Smith, 263. 
 Carver v. Lane, 162. 
 Casey v. Gregory, 251. 
 Cassiday v. McKenzie, 32. 
 Cassilly v. Rhodes, 92. 
 Casson v. Roberts, 179, 180. 
 Castle V. Sworder, 161. 
 Castleman v. Hicks, 278. 
 Cathcart v. Keirnaghan, 29, 129, 155. 
 Catlett V. Gilbert, 251. 
 Catlin V. Bell, 29, 34. 
 
 V. Jackson, 250. 
 Catling V. King, 150, 197. 
 Caton V. Caton, 157. 
 Cattell V. Corrall, 70. 
 
 V. Gamble, 169. 
 Caulkins v. Hellman, 46. 
 Cavanagh, Matter oi, 240. 
 Cave V. Hastings, 157. 
 Cavenaugh v. Jakeway, 250. 
 Cavis V. McClary, 255. 
 Cazet V. Hubbell, 248. 
 ■ Chadwick v. Maden, 209. 
 Chadwicke v. Clarke, 166, 1 67. 
 Chalfant v. Williams, 166. 
 Chalon v. Walker, 240. 
 Chamberlain v. Seller, 211. 
 
 V. Collinson, 22. 
 Chambers v. Fort Bend County, 201. 
 V. Griffiths, 148. 
 V. Hays, 251. 
 V. Jones, 29. 
 V. Kelly, 250. 
 z/. Lecompte, 197. 
 I/. Tulane, 86. 
 Chamblee v. Tarbox, 121. 
 Champion v. Short, I48. 
 ChampHn v. Laytin, 47. 
 
 V. Parrish, 154. 
 Chandler, In re, 1. 
 
 V. Coe, 207, 208. 
 V. Cook, 56. 
 V. Fulton, 188. 
 V. Moulton, 28. 
 Chandos, Duke of, v. Talbot, 92. 
 Chaplin v. Rogers, i6l. 
 Chapman v. De Tastet, 42, 220. 
 V. Gwyther, 108. 
 V. Murch, 59, 117. 
 V. Partridge, 21. 
 
 Chapman v. Speller, 194. 
 V. Walton, 35. 
 Chappell V. Dann, 209. 
 Charles v. Dubose, 4. 
 Charleston v. Paterson, 9. 
 
 V. Price, 252. 
 Charpiot v. Sigerson, 199. 
 Chase v. Monroe, 3. 
 
 V. Ostrom, 29. 
 Chase v. Ross, 248. 
 Chattock V. MuUer, 121. 
 Cheever v. Rutland & Burlington R.R. 
 
 Co., 255. 
 Cheney v. Woodruff, 248. 
 Cherry v. Anderson, 25. 
 
 V. Colonial Bank, '^'^. 
 V. Long, 151, 155. 
 V. Stein, 126, 129. 
 Chesapeake Bank v. McClellan, 237. 
 Chesley v. Chesley, 86. 
 Chetwood v. Brittan, 46, 197. 
 Chichester, Lord, v. Hall, 79. 
 Child V. Chamberlain, 219, 281, 282. 
 Childress v. Harrison, 237. 
 
 V. Hurt, 248. 
 Childs V. McChesney, 250. 
 Chilton V. Butler, 224. 
 Chinery v. Viall, 203. 
 Chinn v. Heale, 71, 72. 
 Chinnock v. Sainsbury, 31. 
 Chipman v. Briggs, 64. 
 Chorpenning's Appeal, 5 . 
 Christie v. Attorney-General, 228. 
 
 V. Simpson, 144, 155. 
 Christman v. Floyd, 258, 264. 
 Chromister v. Bushey, 4. 
 Church V. Church, 46. 
 Churchill v. Palmer, 119. 
 Cincinnati R.R. Co. v. Pearce, 192. 
 Citizens' Bank v. Ober, 121. 
 Clafiin V. Carpenter, 148. 
 Clapham v. Shillito, 55. 
 Clare v. Lamb, 1 79, 202. 
 
 V. Maynard, iio. 
 Clark V. Bell, 108, 241. 
 
 ■V. Calvert, 273. 
 
 V. Carpenter, 64. 
 
 ■u. Chamberlin, 159. 
 
 V. Clark, 5, 240. 
 
 V. Cushman, 19. 
 
 V. Dignum, 29. 
 
 V. Drake, 4. 
 
 V. FaiTovi', 248. 
 
 V. Gaskarth, 273. 
 
 V. Jacobs, 183. 
 
 V. Lockwood, 250. 
 
 V. Moody, 233. 
 
 V. Ralls, 58, 116. 
 
 V, Smythies, 220, 226. 
 
 v. Stetson, 241. 
 Clarke v. Duvaux, 4. 
 
XVI 
 
 TABLE OF CASES. 
 
 Clarke v. ICing, 175. 
 V. Perrier, 34. 
 Clarkson v. Noble, 20. 
 Clary v. Marshall, 237. 
 Clason V. Corley, 248. 
 Clayton v. Glover, 248. 
 
 V. Merrett, 32. 
 Cleave v. Moors, 28, 211. 
 Cleaves v. Foss, 20, 
 Clement v. Reid, 53, 251. 
 Clements v. Smith, 192. 
 CleiTOont V. Tasburg, 52. 
 Cleveland v. Burrell, 104. 
 Cleveland Ins. Co. v. Reed, 126. 
 Click V. Burris, 203. 
 CUnan v. Cooke, 198. 
 Cloud V. El Dorado County, 250. 
 Clowes V. Higginson, 45, 46, 50, 166. 
 Clute V, Barron, 4, 126. 
 Coat V. Coat, 4. 
 Coats V. Stewart, 25. 
 Cobb V. New England Ins. Co., 108. 
 Cobden v. Maynard, 237. 
 Cochran v. Johnson, 225. 
 
 V. Roundtree, 188. 
 Cochrane v. O'Brien, 215. 
 
 V. Rymill, 33. 
 Cockcroft V. MuUer, 182. 
 Cocke V. Bailey, 164. 
 Cockerel v. Wynne, 250. 
 Cockey 'j. Cole, 248. 
 Cockran v, Irlam, 29. 
 Cockrell v. Coleman, 249. 
 Cocks, In re, r. 
 
 V. Izard, 121. 
 Coddington v. Goddard, 61, 118. 
 Coe V. Turner, 48. 
 Coffee V. Sylvan, 250. 
 Coffey -'. Coffey, 237, 250. 
 Coffin V. Corruth, 248. 
 Coffman v. Hampton, 149, 162, 200. 
 Cogel V. Kniseley, 61, 117. 
 Coggs V. Bernard, 231. 
 Cohen V. Paget, 220. 
 
 V. Wagner, 244. 
 Colby V. Gadsden, 56. 
 Cole V. Potts, 198. 
 
 V. White, 198. 
 Colegrave v. Dias Santos, 92. 
 Coleman v. Dewees, 22. 
 
 V. First National Bank, 207. 
 V. Hamburg Bank, 250. 
 V. Trabue, 250. 
 Coles V. Bowne, 153, 154. 
 
 V. Clark, 35. 
 
 V. Marquand, 270. 
 
 V. Pilkington, 197. 
 
 V, Trecothick, 20, 28, 29, 125, 
 
 153. 156. 
 CoUen V. Gardner, 24, 34. 
 V. Wright, 33, 210. 
 
 Collier v. Collins, 237. 
 
 ■u. Whipple, 85, 116, 248. 
 Colhns V. HoUier, 5. 
 
 V. Montgomery, III. 
 V. Smith, 4. 
 Colman v. Packard, 146. 
 Colter V. Bank of England, 217. 
 Colvin V. Williams, 150. 
 Colwell V. Hamilton, 85, 95. 
 Commercial Bank v. Jones, 21. 
 
 ■V. Norton, 29. 
 Commins v. Scott, 151, 207. 
 Commissioners v. HoUoway, 9. 
 V. Macon, 29. 
 V. Thompson, 29. 
 Commonwealth v. Dickinson, 29. 
 
 ■u. Harnden, 14, 29, 114. 
 V. Passmore, III. 
 V. Stearns, 219. 
 V. Van Dyke, 211. 
 Comstock V. Purple, 245, 249. 
 Conant v. Jackson, 124. 
 Conger :■. Ring, 4. 
 
 V. Robinson, 240, 250, 
 Connah v. Hale, 267. 
 Connolly v. Hammond, 4. 
 
 V. Pierce, 104. 
 Conolly V. Parsons, 133, 134, 135. 
 Conover v. Musgrave, 249. 
 
 V. Walling, 115, 142, 249. 
 V. Warden, 68. 
 Conrad v. Patzelt, 252. 
 Conway, Ex parte, 165. 
 ij. Green, 4. 
 V. Nolte, 116. 
 Conyngham's Appeal, 282. 
 Cook V. Berlin Woolen Mill Co., 126. 
 V. Doggett, 193. 
 V. Jenkins, 252. 
 V. Johnson, 255. 
 V. Moseley, 59, 60, 117. 
 V. Palmer, 251. 
 V. Timmons, 1 1 2. 
 V. Travis, 238. 
 Cooke V. Clay worth, 124. 
 
 V. Walters, 251. 
 Coombs V. Scott, 22. 
 Coons V. North, 66. 
 Cooper, Ex parte, 188. 
 V. Borrall, 196. 
 V. Elston, 161. 
 V. Emery, 106. 
 %'. French, 240. 
 V, Galbraith, 250. 
 V. London, Brighton & South 
 
 Coast Ry. Co., 108. 
 7 . Lovering, 57. 
 V. Singleton, 202. 
 V. Smith, 21. 
 V. Wells, loS. 
 Cope V. Rowlands, 17. 
 
TABLE OF CASES. 
 
 XVll 
 
 Copeland v. Mercantile Ins. Co., 4, 126. 
 Coppin V. Craig, 25, 49, 116. 
 Corbett v. Underwood, 282. 
 Corder v. Drakeford, 168. 
 
 v. Morgan, 341. 
 Cordingley v. Cheeseborough, 65, 107. 
 Corles v. Lashley, 241. 
 Cornelius v. Burnford, 252. 
 Cornell v. Lamb, 254, 258. 
 Corporation of London v. Riggs, 76. 
 Cosack V. Decoudres, 159. 
 Costello, In re, 245. 
 Costen, Appeal of, 4. 
 Coster V. Cowling, 168. 
 Cote, In re, i. 
 Cotterill v. Stevens, 164. 
 Cotton, Ex parte, 92. 
 
 V. Scudamore, 92. 
 Coulter V. Herrod, 245. 
 Courtis V. Cane, 35. 
 Coustonz'. Chapman, 148, 204, 205. 
 Coventry v. Barton, 25, 230, 259. 
 Coverley v. Bunell, 50, 51, 76. 
 Covington & Lexington R.R. Co. v. 
 
 Bowler, 248. 
 Cowan V. Anderson, 249. 
 Cowell V. Lippitt, 248. 
 Cowen V. Stevens, 250. 
 
 V. Underwood, 86. 
 Cowgill V. Cahoon, 86. 
 
 V. Wooden, 196. 
 Cowley z*. Watts, 89, 129, 151. 
 Cowles, In re, 1. 
 Cox V. Coventon, 61. 
 
 V. Middleton, 51, 70. < 
 
 Coxe V. Halsted, 241, 252. 
 Cozine v. Graham, 197. 
 Craddock v. Shirley, 108, 202. 
 Craig, Appeal of, 250. 
 
 V. Fox, 242. 
 
 u. Godfrey, 20, 154. 
 
 ■u. Leslie, 189. 
 
 ■V. Miller, 115. 
 Cram v. Mitchell, 4, 125. 
 Cramer v. Matthews, 251. 
 
 V. Mott, 276. 
 Crandall v. Blenn, 48. 
 
 V. State, 8. 
 Crane v. Decamp, 53. 
 Cravens v. Wilson, 36. 
 Crawford v. Toogood, 103. 
 Creager v. Link, 31. 
 Creagh v. Savage, 29. 
 Creighton v. Payne, 248. 
 Cresson v. Stout, 251, 269. 
 Crisdee w. Bolton, no. 
 Croak v. Owens, 4. 
 Crocker v. Foley, 167. 
 V. Mann, 252. 
 Crompton v. Baldwin, 242. 
 Cronan v, McDonogh, 2i. 
 
 Cronk v. Cole, 57. 
 Crook V. Williams, 29. 
 Crooks V. Moore, 201 . 
 Croom V. Shaw, 119. 
 Crosby v. Wadsworth, 147. 
 Crosier v. Acer, 192. 
 Cross V. Keane, 92. 
 
 V. Lawrence, loi. 
 V. O'Donnell, 188. 
 V. Peters, 57. 
 Crosskey v. Mills, 232. 
 Crotwell V. Boozer, 248. 
 Crouch V. Culbreath, 60. 
 Crowder v. Austin, 132, 133. 
 Crowe V. Ballard, 28. 
 Crowley v. Hyde, 4. 
 Cruse V. Nowell, 44. 
 Crustsinger v. Caton, 250. 
 Crutchlield v. Thurman, 142. 
 Crutchley v. Jerningham, 171. 
 Cubbage v. Franklin, 251. 
 Cuddee v. Rutter, 198. 
 Cudden v. Cartwright, 56. 
 Cuffs'. Borland, 54, 55. 
 Culver V. Bigelow, 208. 
 V. Burgher, 193. 
 V. McKeown, 249. 
 Cumberland v. Bowles (or Glamis), 93. 
 Cumberland Coal Co. v. Sherman, 4, 
 
 126. 
 Cummings, Appeal of, 192. 
 V. Arnold, 167. 
 V. Doe, 250. 
 V. Little, 249. 
 V. McGill, 250. 
 Cummins v. Little, 249, 251. 
 Cundy v. Lindsay, 192, 
 Cunningham v. Felker, 251. 
 Curd V. Lackland, 250, 25 1 . 
 Curling v. Austin, 100. 
 
 V. Shuttleworth, 178. 
 Currie v. Anderson, 162. 
 Currier v. Howard, 146. 
 Curtis V. Aspinwall, 90, 131, 132, 171, 
 
 181. 
 Curtis V. Bradley, 278, 279. 
 V. Hubbard, 265. 
 V. Pugh, 163. 
 V. Wheeler, 254. 
 Cusack V. Robinson, 160. 
 Cushwa V. Cushwa, 250. 
 Cutler V. Ashland, 22. 
 
 ■u. Pope, 148. 
 Cutter V. Powell, 225. 
 Cutting V. Derby, 258. 
 Cutts V. Salmon, 91. 
 V. Thodey, 340. 
 
 Dakin v. Williams, 109. 
 Dalby v. PuUen, 107, 238. 
 Dale V. Hamilton, 197, 238. 
 
TABLE OF CASES. 
 
 Dale V. Shirley, 142. 
 Dalgleish v. Grandy, 252. 
 Dallam v. Bowman, 250. 
 Dallas V. Chaloner, 9. 
 Dalton V. Whittem, 147. 
 Daly V. Commonwealth, 9, 
 Dame v. Baldwin, 4. 
 Damerell v. Prothero, 79. 
 Dana v. Hancock, 167. 
 Dance v. Goldingham, 86. 
 Dancey v. Stricklinge, 248. 
 Danforth v. Lancey, 199. 
 Daniel v. Adams, 27. 
 
 V. Jackson, 89. 
 
 V. Mc Henry, 121. 
 
 V. Mitchell, 47, 190. 
 Daniels, In re, 32. 
 
 V. Bailey, 147. 
 D'Aquin v. Amant, 196. 
 Darby v. Harris, 268, 269. 
 Darcus v. Crump, 5. 
 Darkle v. Martin, 233. 
 Darling v. Stanwood, 29. 
 DarUngton v. Hamilton, 72, 77. 
 Darrington v. Borland, 240, 242. 
 Darst V. Thomas, 122. 
 Dart V. Blight, 250. 
 Davidson v. Lallande, 45. 
 
 V. Van Pelt, 104. 
 Davies, Ex parte, 34. 
 V. Powell, 269. 
 Daviess v. Wamack, 250. 
 Davis V. Abbott, 252. 
 
 V. Arledge, 266, 269. 
 
 V. Artingstall, 35, 113. 
 
 V. Avery, 266, 269. 
 
 V. Campbell, 250. 
 
 V. Commonwealth, 9. 
 
 V. Cureton, 194. 
 
 V. Danks, 27, 114. 
 
 V. Evans, 57, 66. 
 
 V. Garrett, 231. 
 
 V. Helbig, 249. 
 
 V. Hunt, 25, 29. 
 
 V. Irwin, 25. 
 
 V. Lane, 32. 
 
 V. Meeker, 58. 
 
 V. Muody, 164. 
 
 7'. Moore, 161. 
 
 V. Murray, 29. 
 
 V. Parker, 56. 
 
 V. Payne, 266. 
 
 ■u. Rainsford, S2. 
 
 ■u, Robertson, 144, 1 54. 
 
 -'. Rowell, 144, 154. 
 
 V. Shields, 152, 154, 155. 
 
 V. Simpson, 4. 
 
 V. Windsor Savings Bank, 32. 
 
 V. Winsmith, 66, 107. 
 Davoue v. Fanning, 4. 
 Dawes v. Harness, 190. 
 
 Dawson v. Brinckmann, loi. 
 Day V. Finn, 64. 
 V. Perkins, 64. 
 V. Wells, 23, 31, 54, 127. 
 De Bardelaben v. Stoudenmire, 237. 
 De Bell v. Thompson, 21. 
 De Bervoise v. Sandford, 5. 
 De Caters v. Le Ray de Chaumont, 4. 
 De Coursey v. Guaranty Trust Co., 252, 
 
 256, 258. 
 De Forest z/. Farley, 250. 
 De Sewhanberg v. Buchanan, 59. 
 De Visme v. De Visme, 104. 
 Deaderick v. Smith, 250. 
 
 V. Watkins, 248. 
 Deal V. Dodge, 192. 
 Dean v. Ball, 122. 
 
 V. Farmer, 239. 
 V. King, 16. 
 Dearmond v. Courtney, 48. 
 Deaver v. Reynolds, 1 26. 
 
 Z'. Rice, 252. 
 Debenham v. Mellon, 123. 
 Decorah v. Dunstan, 7. 
 Delafield v. Anderson, 250. 
 Delaney v. Levi, 21. 
 Delano v. Montague, 146. 
 Deller v. Prickett, 217. 
 Deloach v. State Bank, 49. 
 
 V. Youmans, 5. 
 Delves v. Delves, 140, 249. 
 Demain v. Cassidy, 35. 
 Demaray v. Little, 245. 
 Den V. Hilman, 4. 
 
 V. Lambert, 249. 
 V. Wright, 4. 
 V. Young, 109. 
 
 V. Zellers, 122, 123, 242, 250. 
 Denew w. Daverell, 24, 36, 84, 227. 
 Denn v. Murphy, 37. 
 Denne v. Light, 62. 
 Dennie v. Hart, 174. 
 Dennison v, Lee, 275. 
 Denny v. Gilman, 117. 
 
 V. Hancock, 51, 52, 55, 80. 
 Dent V. Hancock, 265. 
 -'. McGrath, 29. 
 
 V. Xorth American Steamship Co., 
 165. 
 Denton v. Stewart, 199. 
 Deposit V. Pitts, 3, 7. 
 Depree -'. Bedborough, 109, 1 79. 
 Depuy V. Schuyler, 170. 
 Desborough v. Harris, 215. 
 Despatch Line of Packets v. Bellamy 
 
 Manufacturing Co., 64. 
 Deverell v. Lord Bolton, 84. 
 Dewall V. Peach, 144. 
 Dewey v, Lippincott, 248. 
 Dexter v. Harris, 5. 
 
 V. Shepherd, 142. 
 
TABLE OF CASES. 
 
 XIX 
 
 Dexter v. Strobach, 29. 
 Dibble v. Bovvater, 263. 
 Dibrell v. Williams, 248. 
 Dick V. Cooper, 121. 
 
 V. Donald, 96. 
 
 V. Lindsay, 121, 142. 
 
 V. Page, 32. 
 Dickenson v. Naul, 25, 35, 114, 211. 
 Dickerman v. Burgess, 2, 250. 
 Dickerson v. Collins, 92. 
 Dickert v. Weise, 241. 
 Dickey v. Beatty, 202. 
 Dickinson v. Conway, 21. 
 V. Talbot, 248. 
 Dill V. Camp, 192. 
 Diller v. Brubaker, 282. 
 
 V. Roberts, 258. 
 Dills v. Jasper, 126. 
 Dillwyn v. Llewellyn, 70. 
 Dimmock v. Hallett, 56, 58, 73, 74, 140, 
 
 245. 
 Dingle v. Hare, 119. 
 Dingledine v. Harshman, 250, 
 Dinham v. Bradford, 93. 
 Diplock V. Hamond, 217. 
 Dirks V. Richards, 229. 
 Disbrow v. Folger, 95. 
 Dixon V. Pyner, 238. 
 -u. Yates, 163. 
 Doar V. Gibbes, 103. 
 Dobell V. Hutchinson, 51, 73, 159. 
 Dobson V. Jordan, 209. 
 Dodd V. Farlow, 119. 
 V. Morgan, 276. 
 Dodge V. Tileston, 228, 260. 
 Doe V. Bradley, 116. 
 
 V. Harter, 250. 
 
 V. Hassell, 4. 
 
 V. Robinson, 29. 
 
 V. Roe, 4. 
 
 V. Smith, 241. 
 
 V. Stanion, 85. 
 
 V. Swiggett, 237. 
 Doggett V. Emerson, 47, 190. 
 Doloret v. Rothschild, 201. 
 Domville v. Berrington, 238. 
 Donaldson v. Kerr, 251. 
 
 V. McRoy, 132. 
 Donley v. Bush, 164. 
 Donnison v. People's Cafe Co., 150, 
 
 151- 
 Donohoe v. Fackler, 248. 
 V. Gamble, 282. 
 Doolin V. Ward, 121. 
 Dorchester and Milton Bank v. New 
 
 England Bank, 29. 
 Dorsey v. Dorsey, 4. 
 V. Hays, 263. 
 Doty V, Wilder, 153, 160. 
 Dougherty v. Linthicum, 86. 
 Douglas V. Archbutt, 227. 
 
 Dover v. Kennerly, 126. 
 Dow V. Worethen, 164. 
 Dowell V. Goode, 250. 
 Dowle V. Lucy, 244. 
 Dowler's Succession, 229. 
 Dowling V. Duke, 193. 
 Downard v. Crenshaw, 195. 
 Downes v. Grazebrook, 121, 125. 
 Downing v. Brown, 126, 250. 
 Drake v. Collins, 249, 250. 
 ■a. Goodrich, 197. 
 V. Mooney, 251. 
 V. Wells, 27, 113. 
 Drant v. Brown, 167. 
 Draper v. Bryson, 250. 
 
 V. Thompson, 259. 
 Drennen v. Walker, 33. 
 Dressel v. Jordan, 94. 
 Drew V. Nunn, 32. 
 Drinkwater v. Goodwin, 229. 
 Driver v. Cholmondeley, 225. 
 Drouet v> Lacroix, 250. 
 Drummond v. Humphreys, 211. 
 Drury v. Cross, 121. 
 
 V. Defontaine, 27. 
 Dryden v. Jepherson, 165. 
 Drysdale v. Mace, 87. 
 Dubois V. Baum, 103. 
 Dubose V. James, 5. 
 Duddell V. Simpson, 98. 
 Dudley v. Little, 121. 
 Duear v. Mackintosh, 217. 
 Duffee V. Mason, 59. 
 Dugan V. Carlton, 5 7. 
 Dugen V. United States, 208. 
 Dugdale v. Lovering, 35, 210, 229. 
 Duke V. Barnett, 95. 
 Duke of Beaufort v. Nuld, 34. 
 
 of Chandos v. Talbot, 92. 
 
 of Norfolk V. Worthy, 50, 68, I07, 
 182. 
 
 df St. Albans v. Shore, 56. 
 Dunbar v. Creditors, 238. 
 Duncan v. Blundell, 41. 
 V. Cafe, 177. 
 V. Dodd, 249. 
 V. Forsyth, 121. 
 V. Meikleham, 258. 
 V. Sanders, 249. 
 Duncuft V. Albrecht, 149, 201. 
 Dundas's Appeal, 5. 
 Dungan v. Vondersmith, 237. 
 Dunham v. Minard, 240. 
 Dunk V. Hunter, 257. 
 Dunlap V. Mitchell, 4. 
 Dunn V. Hartford Horse R.R. Co., 22. 
 
 V. Moore, 197. 
 Dunne v, Ferguson, 147. 
 Dupree v. McDonald, 46. 
 Dupont V. Payton, 58. 
 Durant v. Bacot, 54. 
 
TABLE OF CASES. 
 
 Durette v. Briggs, 250. 
 Durfee v. Moran, 121. 
 Durham v. Heaton, 250. 
 
 V. Legard, 65. 
 Durkee v. Vt. Central R.R. Co., 224, 226. 
 Durrell v. Evans, 22, 153. 
 Dutch Church v. Mott, 94. 
 Dutcher v. Leake, 239. 
 Duvall V. Speed, 85. 
 Duvals V. Ross, 64. 
 Dwight, Case of, 29. 
 
 V. Blackmar, 4, 126. 
 
 V. Cutler, 95. 
 
 V. Pomeroy, 45. 
 Dwinel v. Perley, 4. 
 Dyer v. Hargrave, 55, 57. 
 Dykes v. Blake, 48, 78, 80, I07. 
 Dyson v. Hornby, 104. 
 
 Eadie v. Ashbaugh, 22. 
 Eads V. Stephens, iii. 
 Eagleton v. East India Co., 84. 
 
 V. Gutteridge, 265. 
 Eakin v. Herbert, 184, 248. 
 Earl V. Bryan, 64. 
 Earl of Aldborough v. Trye, 4. 
 
 of Durham v. Legard, 65. 
 
 of Egmont v. Smith, 183, 193. 
 
 of Ferrers v. Robbins, 28, 232, 234. 
 
 of Glengal v. Barnard, 156. 
 
 of Jersey v. Briton Ferry Floating 
 Dock Co., 185. 
 
 of Tyrconnell v. Duke of Ancaster, 
 
 74- 
 Earle v. De Witt, 202. 
 
 V. Turton, 237. 
 East V. Wood, 133. 
 East & West India Dock Company v. 
 
 Littledale, 216, 217. 
 Eastern Bank v. Taylor, 126. 
 
 R.R. Co. V. Benedict, 207. 
 Easton v. Mavvkinney, 121. 
 Eaton V. Smith, 165. 
 
 t.. Whittaker, 197, 198. 
 Eberhart v. Gilchrist, 249. 
 Edden v. Read, i lo. 
 Eden v. Blake, 20, 25, 47, 126, 164. 
 Edgell V. Day, 175, 176, 178, 182. 
 Edgerton v. Hodge, 164. 
 Edmonds v. Crenshaw, 4. 
 
 V. Peake, 182. 
 Edmondson v. Hart, 67. 
 Edmunds v. Biishell, 34. 
 Edney v. Edney, 240. 
 Edwards v. Bodine, 64. 
 
 V. Hall, 149. 
 
 V. Hodding, 176. 
 
 V. McLeay, 96. 
 
 V. Thomas, 34. 
 
 V. Wickwar, 87. 
 Egard v. Chearnley, 249. 
 
 Eggers V. Redwood, 250. 
 Egmont, Earl of, v. Smith, 183, 193. 
 Eichholz V. Bannister, 193. 
 Eicke V. Meyer, 220. 
 Eldridge v. Stacey, 265. 
 V. Walker, 126. 
 Elfe V. Gadsden, 144, 152, 165. 
 Elliott V. Ince, 123. 
 
 ■iJ. Knott, 250, 252. 
 Ellis V. Deadman, 152, 159. 
 £/. Hill, 66. 
 V. Hoskins, 96. 
 Ellison V. KeiT, 177. 
 Elmore v. Kingscote, 151. 
 
 V. Stone, 161. 
 Else V. Barnard, 27, 141, 244. 
 
 V. Else, 86. 
 Elwell V. Chamberlin, 33. 
 Elworthy v. BiUing, 238. 
 Ely V. Ely, 185. 
 
 V. Horine, 5, 239. 
 V. James, 22. 
 V. Ormsby, 164. 
 Elysville Manufacturing Co. v. Okisko 
 
 Co.,'45. 
 Emden v. Carte, 229. 
 Emerson v. Wiley, 82. 
 Emery v. Richards, 176. 
 Emley v. Drum, 143, 250. 
 Emmerson v. Heelis, 20, 23, 148, 168. 
 Emmons v. Moore, 118. 
 Ender v. Scott, 58. 
 Endicott v. Penny, 154. 
 Enloe V. Miles, 116. 
 Ennis v. Waller, 144. 
 Entz V. Mills, 155. 
 Episcopal Church v. Leroy, 154. 
 Erb V. Erb, 248. 
 Esser v. Linderman, 282. 
 Essex V. Daniell, 109, 179, 180, 196. 
 Estell V. Myers, 118. 
 Estill V. Miller, 250. 
 Eubank v. Hampton, 64. 
 Evans v. Ashley, 144, 153, 154. 
 
 V. Clapp, 108. 
 
 V. Davis, 250. 
 
 V. Edmonds, 117. 
 
 V. Elliott, 255, 275. 
 
 V. Evans, 208. 
 
 1/. Herring, 258. 
 
 ■11. Kingsbury, 71, 72. 
 
 V. Roberts, 146. 
 
 z'. Robins, 61. 
 
 V. Spurgin, 248. 
 
 V. Wilder, 252. 
 
 V. Wright, 280. 
 Eveleth v. Wilson, 45, 164. 
 Everett v. Collins, 174. 
 
 V. Neff, 268. 
 Everts v. Agnes, 198. 
 Ewing V. Waite, 248. 
 
TABLE OF CASES. 
 
 XXI 
 
 Eyles V. Ellis, 172. 
 Ezell V. Franklin, 119. 
 
 Fabel v. Boykin, 251. 
 Fackler v. Worth, 248. 
 Fagan v. Newson, 58. 
 Fairbrother v. Shaw, 198. 
 V. Nerot, 217. 
 Fairchild v. Faivchild, 69. 
 Fairfax v. Hopkins, 114. 
 
 V. Muse, 120. 
 Fairis v. Walker, 64. 
 Fairlie v. Fenton, 26. 
 Falcke v. Gray, 201. 
 Falconer v. Clark, 202. 
 
 V. Garrison, 164. 
 Falk, Ex parte, 188. 
 Falkner v. Guild, 250. 
 Fane v. Spencer, 96. 
 Farebrother v. Gibson, 54, 73, 107. 
 ■n. Prattent, 216. 
 V. Simmons, 20, 26, 157. 
 Farina v. Home, 160. 
 Fanner v. Robinson, 31. 
 Farmers' Bank v. Clarke, 116, 242, 247, 
 249. 
 
 V. Martin, 55. 
 v. Peter, 248. 
 Farmers' Loan & Trust Co. v. Wal- 
 worth, 33. 
 Farnsworth v. Taylor, 82. 
 Farquhar v. Farley, 1 81. 
 Farr v. John, go. 
 
 V. Ward, 216. 
 Farrar v. Stackpole, 93, 165. 
 Farrer v. Nightingale, 72. 
 Farrington v. Baley, 258, 268. 
 Farwell v. Lowther, 150, 152. 
 Fasholt V. Reed, 104. 
 Faucett v. Currier, 140. 
 
 V. Faucett, 4. 
 Faukboner v. Faukboner, 164. 
 Faulkner v. Hill, 282. 
 Faure v. Martin, 64. 
 Faust V. Haas, 121. 
 Fay V. Richmond, 119. 
 Fector, Ex parte, no. 
 Feeger v. Keefer, 250. 
 Fellows V. Fellows, 239. 
 Fennell v. Ridler, 9. 
 
 V. Tucker, 121, 242. 
 Fenner v. Tucker, 121, 242. 
 Fenton v. Browne, 57, 182. 
 Fenwick v. Macey, 237. 
 Feoffees v. Heriot's Hospital v. Gib- 
 son, 81. 
 Fergus v, Woodworth, 246, 251. 
 Ferguson v. Franklin, 1 1 1, 241. 
 V. Hamilton, 192. 
 V. Moore, 253. 
 V. Staver, 151, 153. 
 
 Ferrers, Earl of, v. Robins, 28, 232, 234. 
 Fessenden v. Mussey, 150, 152. 
 Fewster v. Turner, 81. 
 Field V. Arrowsmith, 239. 
 V. Gamble, 249. 
 V. Runk, 149, 161. 
 Fife V. Clayton, 56. 
 Fitield v. Close, 170. 
 Fine v. St. Louis Public Schools, 250. 
 Finley v. Gant, 250. 
 
 V. Lynch, 94. 
 Finney v. Steamer Fayette, 238. 
 Fisher v. Attleborough, 21. 
 
 o. Budlong, 59, 117. 
 
 u. Dynes, 228. 
 
 V. Hersey, 131, 249. 
 
 V. Johnson, 268. 
 
 V. Kuhn, 151. 
 
 V. Marsh, 25, 208. 
 
 V. Mellen, 190. 
 
 V. Seltzer, 30. 
 
 V. Worrall, 53. 
 Fitler v. Patton, 250. 
 Fitzhardinge, Lord, v. Pritchett, 92. 
 Fitzmaurice v. Bayley, 151. 
 Fitzpatrick z^. Featherstone, 192. 
 Fitzsimmons v. Woodruff, 164. 
 Flack V. Smythies, 226. 
 Flagg V. Mann, 197. 
 Flanigan v. CruU, 26. 
 Fleckner v. Bank of United States, 22. 
 Fleming v. Johnson, 237. 
 V. Maddock, 250. 
 Fletcher v. Dickinson, 282. 
 V. Marillier, 263. 
 V. Stone, 251. 
 V. Walker, 233. 
 V. Willard, 166. 
 Flight V, Barton, 77. 
 
 V. BoUand, ' 1 22. 
 
 V. Booth, 45, 50, 52, 78, 107. 
 Flint V. Woodin, 20, 74, 133, 141. 
 Flood V. Prettyman, 250. 
 Florance v. Richardson, 9, 21. 
 Flower v. Hartopp, loi. 
 Floyd V. McKinney, 250. 
 Flureau v. Thornhill, 1 10. 
 Flury V. Grimes, 253. 
 Foley V. McKeown, 66. 
 Fondren v. Durfee, 60. 
 Fontelieu, Succession of, 237. 
 Fontenot v. Debaillon, 196. 
 Forbes v. Halsey, 4. 
 Force v. Dutcher, 151. 
 Fordz/. Hitchcock, 124. 
 
 V. Yates, 45. 
 Forde v. Herron, 249. 
 Fore V. McKenzie, 248. 
 Forelande v. Hicks, 121. 
 Forman v. Hunt, 237, 248. 
 Forrest v. Camp, 250. 
 
TABLE OF CASES. 
 
 Forster v. Hayman, 196. 
 V. Rowland, 156. 
 Forsythe v. Ellis, 29. 
 Fort V. Burch, 248. 
 Foster v. Bates, 21, 22. 
 
 V. Caldwell, 59. 
 
 V. HoUins, 35. 
 
 V. Mabe, III. 
 
 V. Pearson, 24. 
 
 V. Persch, 209. 
 
 V. Pugh, 142. 
 
 V. Smith, 208. 
 Fowler v. Gold Exchange Bank, 22, 33. 
 Fox V. Cash, 29. 
 V. Clarke, 62. 
 V. McKee, 275. 
 V. Mensch, 194. 
 Foxlowe V. Armcoats, 103. 
 Frakes v. Brown, 237. 
 Frame v. Gaudet, 204. 
 Francis v. Church, 245. 
 
 V. Keiber, 22, 126. 
 Franciscus v. Reigart, 25S. 
 Franklin v. Globe Ins. Co., 34. 
 Franklyn v. Lamond, 26, 129, 148, 209. 
 Eraser v. Davie, 252. 
 Frasher v. Ingham, 48. 
 Frazer v. Ford, 154. 
 
 V. Lee, 5. 
 Freeland v. Southworth, 64. 
 Freeman v. Caldwell, 194. 
 7J. Harwood, 4. 
 V. Husband, 209. 
 V. Mebane, 183. 
 V. Munns, 248. 
 V. Rosher, 259. 
 Freeport v. Bartol, 159. 
 Freer v. Rimner, 30. 
 Freeth v. Burr, 195. 
 Freetly v. Barnhart, 85, 95. 
 Frelinghausen -'. Colden, 248. 
 Freme v. Wright, 86, 88, 95. 
 French v. Edwards, 3, 250. 
 V. Macale, III. 
 7'. Vining, 117. 
 Frend v. Buckley, 95. 
 Fretwell v. Troy, 7, i8. 
 Friedlander v. Cornell, 35. 
 Frisbey v. Thayer, 264. 
 Frisbie v. Fogarty, 248. 
 Froneberger v. Lewis, 4, 5. 
 Frost V. Beavan, 180. 
 
 V. Blanchard, 192. 
 
 V. Hill, 29, 155. 
 
 V. Knight, 201. 
 Fry V. Breckenridge, 258. 
 Fryer v. Rockefeller, 85. 
 Fugate V, Hansford, 152. 
 Fuller V. Abrahams, 121, 142. 
 
 V. Hovey, 103. 
 
 V. Hubbard, 96. 
 
 Fuller V. Little, 4. 
 
 V. Perkins, 53. 
 
 V. Van Geesen, 248. 
 Fulton V. Davidson, 195. 
 
 V. Moore, 143, 245. 
 Furness v. Anderson, 1 14. 
 Furniss v. Hone, 188, 
 
 Gabriel v. Smith, 106. 
 Gaby V. Driver, 33, 177. 
 Gadd V. Houghton, 208. 
 Gaffield v. Hapgood, 64. 
 Gage V. Allison, 32. 
 Gainsford v. Carroll, 203. 
 Galbraith v. Galbraith, 64. 
 Gale V. Squier, 93. 
 V. Tappan, 32. 
 Gallaher v. Collins, 237. 
 Gallatian v, Erwin, 4. 
 Galpin v. Lamb, 126. 
 V. Page, 250. 
 Gait V. Galloway, 32. 
 Galton V. Emuss, 121. 
 Gammon v. Howe, 108. 
 Ganly v. Ledwidge, 35. 
 Gano V. Hart, 258. 
 Gans V. Renshaw, 76, 85, 94, 95. 
 Gantley v. Ewing, 38. 
 Garden v. Ingram, 185. 
 Gardiner t'. Morse, 121. 
 Gardner v. Armstrong, 195. 
 Gardom v. Lee, 98. 
 Garfield v. Paris, 145, 161. 
 Garland v. Reynolds, 208. 
 Garnett v. Macon, 85, 95, 
 Garnhart v, Finney, 112. 
 Garrett v. Lynch, 250. 
 
 V. Moss, 242, 252. 
 
 Garrison, In re, I. 
 
 Gaskell V. Morris, 26. 
 
 Gaskill V. Aldrich, in. 
 
 Gassen v. Palfrey, 240. 
 
 Galling V. Newell, 51. 
 
 Gauche v. Trautman, 86. 
 
 Gavinzel v. Crump, 164. 
 
 Gay V. Moss, 282. 
 
 Gazley v. Price, 193. 
 
 Gee V. Pearse, 98. 
 
 Gehr V. Hogerman, 192. 
 
 Geldard v. Randall, 239. 
 
 Gentry v. Robinson, 250. 
 
 George v. Joy, 166. 
 
 V. Watson, 248. 
 
 Georgetown v. Baker, 9. 
 
 German v. Machin, 53. 
 
 Gettins v. Scudder, 231. 
 
 Gibbs V. Benjamin, 187. 
 
 V. Cunningham, 242, 248, 249. 
 V. Thompson, 48. 
 
 Gibson, Case of, 126. 
 V. D'Este, 48. 
 
TABLE OF CASES. 
 
 XXUl 
 
 Gibson v. Eller, loj. 
 
 V. Fifer, 192. 
 
 I/. Holland, 1 59. 
 
 V. Soper, 124. 
 
 V. Spurrier, 70, 78, 148. 
 
 V. WoUard, 240. 
 Gift V. Anderson, ill. 
 Gilbert v. Bulkly, 146. 
 
 V. Carter, 121. 
 
 V, Haire, 248. 
 
 V. Moody, 266. 
 
 V. Port, 185. 
 Giles V. Ellsworth, 252. 
 V. Jones, 64. 
 
 V. Simonds, 27, 113, 148. 
 Gill V. Bicknell, 128, 150, 155. 
 V. Hewett, 154. 
 V. McNamee, 4. 
 Gillard v. Brittan, 203. 
 Gillespie v. Smith, 241. 
 Gillett V. Balcom, 92. 
 
 V. Hill, 186, 187. 
 
 ». Maynard, 71, 72. 
 Gilliatt V. Gilliatt, 91, 138, 245. 
 Gilliss V. Barnett, 3. 
 Gilman v. Hall, 149. 
 Gilmer, Matter of, 237. 
 Gilmore v. Morgan, 68. 
 V. Newton, 35. 
 Gilroy v. Alls, 54, 55. 
 Girard v. Hirsch, 22. 
 
 V. Taggart, 26. 
 Girardey v. Stone, 225. 
 Gist V. Frazier, 251. 
 Given v. Blann, 266, 269. 
 Givens v. Calder, 199. 
 Gladstone v. White, 217. 
 Glass V. Greathouse, 4. 
 
 V. Hulbert, 46, 166, 197, 198. 
 Gleason v. Sykes, 187. 
 Glegg, Ex parte, 399. 
 Glengal, Earl of, v. Barnard, 156. 
 Glenn v. Clapp, 240, 249. 
 
 V. Glenn, 203. 
 
 V. Salter, 221. 
 
 V. Wotton, 241. 
 Glover v. Halkett, 167. 
 
 V. Ruffin, 237. 
 
 V. Smith, 64, 66. 
 Glynn v. Locke, 215. 
 Goddard v. Jeffreys, 54, 108. 
 Goddin v. Vaughn, 95. 
 Godman v. Meixsel, 260. 
 Godwin v. Francis, 33, 210. 
 Goelet V. Cowdrey, 21. 
 Goelth V. White, 192. 
 Goff V. Robbins, 239. 
 Goldsborough v. Ringgold, 237. 
 Goldsmith v. Guild, 103. 
 
 V. Obermeier, 224. 
 Gooch V. Holmes, 150. 
 
 Goodale v. Wheeler, 24, 86. 
 Goode V. Comfort, 241. 
 V. Hawkins, 121. 
 Goodell V. Harrington, 238. 
 Goodrich v. Jones, 64, 93. 
 V. Longley, 165. 
 Goodwin V. Burns, 4. 
 V. Mix, 86. 
 Gordon, Ex parte, 40. 
 
 V. Buchanan, 23. 
 V. Gordon, 145. 
 V. Parmelee, 57. 
 V. Sims, 20, 87, 154, 248. 
 Gore V. Gibson, 124. 
 Gorham v. Fisher, 164. 
 Gorman v. Steed, 1 70. 
 Gosbell V. Archer, 21, 29, 154, 180,202. 
 Goshen v. Kern, 8. 
 
 Goss V. Lord Nugent, 89, 164, 166, 193. 
 Gossard v. Ferguson, 144. 
 Gossom V. Donaldson, 237. 
 Goswill V. Dunkley, 29. 
 Gould V. Bradstock, 264. 
 7J. Gage, 248. 
 V. Garrison, 85. 
 V. Gould, 4, 24S. 
 Gouverneur v. Elraendorf, 202. 
 Gowan v. Jones, 237, 248. 
 Govven v. Klous, 149, 150. 
 Gowland v. De Faria, 456. 
 Grace v. Mitchell, 211. 
 V. Sheively, 263. 
 Grady v. American Central Ins. Co., 29. 
 
 V. Ward, 240. 
 Graff w. Caldwell) 35. 
 Graham v. Bleakie, 85, 195, 237, 240. 
 V. Duckvvall, 208. 
 V. Fretwell, 22. 
 V. Hawkins, 248. 
 V. Hendren, 57, 108. 
 V. Musson, 22. 
 Grandy v. McCleese, 193. 
 Granger v. Worms, 51, 77. 
 Granite R.R. Co. -v. Bacon, 89. 
 Grant v. Hardy, 222. 
 
 ■V. Ludlow, 35, 260. 
 V. Naylor, 150. 
 Grantland v. Wright, 45, 89. 
 Grany v. McCleese, 193. 
 Graves v. Weld, 147. 
 Gray v. Brignardello, 237. 
 V. Case, 150. 
 V. Fowler, 98. 
 V. Gutteridge, 177. 
 V. Haig, 232, 233. 
 V. Harper, 46. 
 V. Heslep, 4. 
 V. Holdship, 64. 
 V. Shaw, 56. 
 V. Stanion, 84. 
 Grayson v. Weddle, 4. 
 
XXIV 
 
 TABLE OF CASES. 
 
 Greaves v. Ashlin, 45. 
 
 V. Hepke, 186. 
 Grede v. Dannenfelser, 251. 
 Green v. Armstrong, 147, 148. 
 
 V. Bartlett, 222. 
 
 V. Baverstock, 133. 
 
 V. Green, 96. 
 
 V. Maiden, 64. 
 
 V. Merriam, 145, 155, 162. 
 
 V. Morris & Essex R.R. Co., 54. 
 
 u. Mules, 224. 
 
 V. Savin, 103. 
 
 V. Smith, 199. 
 
 V. State Bank, 248. 
 
 V. Weaver, 233. 
 Greenaway v. Adams, 199. 
 Greene i'. Goddard, 211. 
 (ireenleaf v. Queen, 4. 
 Greenslade v. Dare, 123. 
 Greenthal v. Schneider, 117. 
 Greenup v. Stoker, 252. 
 Gregg V. Smith, 16. 
 Gregory v. Gregory, 28. 
 V. Purdue, 252. 
 Greider's Appeal, 258. 
 Grice v. Kenrick, 23, 1 14, 234. 
 Gridley v. Phillips, 204. 
 Griffin v. Cunningham, 85, 95. 
 
 V. Heermance, 103. 
 
 z. Helmbold, 250. 
 
 ''. Thompson, 3. 
 
 -'. Warner, 245, 248. 
 Griffith z: Depew, 1S3. 
 
 V. Fowler, 4, 237. 
 
 V. lladley, 241, 248. 
 
 V. Judge, 142. 
 
 V. Kempshall, 202. 
 Griffiths V. Hatchard, 106. 
 V. Jones, 54, 249. 
 V. Owen, 164. 
 Grigg V. Landis, 103. 
 Grignon v. Astor, 237. 
 Grimoldby v. Wells, 163, 190, 205. 
 Grimshaw v. Atterwell, 229. 
 Griswold v. Chandler, 4. 
 V. Fuller, 48. 
 •v. Stoughton, 251. 
 Groff I/. Jones, 251. 
 Groover v. Warfield, 114, 208. 
 Gross V. Pearcy, 196. 
 Grotenkemper v. Achtermeyer, 30. 
 Grover v. Fox, 250. 
 
 V. Warfield, 114. 
 Grubbs V. McGlawn, 4. 
 Gruman v. Smith, 282. 
 Grumley v. Webb, 1 26, 239. 
 Guerreiro v. Peile, 36. 
 Guest V. Opdyke, 268. 
 
 V. Smythe, 239, 249. 
 Guhck V. Ward, 121. 
 Gunn V. Bolskow, Vaughn & Co., iSS. 
 
 Gunn V. Brantley, 4. 
 
 V. Cantine, 208. 
 Gunnis v. Erhart, 45, 54. 
 Gurney's Succession, 239. 
 Guthrie i'. Thompson, 104. 
 Guynne z'. JlcCawley, 240. 
 Gwathney v. Cason, 153, 154. 
 Gwinn v. McCarroll, 237. 
 Gwynne, Ex parte, 172. 
 Gyde, Ex parte, 109. 
 
 Hache v. Ayraud, 237. 
 Hadden v. Claik, 250. 
 
 V, Johnson, 144. 
 Hadley v. Baxendale, 204. 
 Hagay v. Hill, 164. 
 Hagedorn v. Laing, 356. 
 Haggerty v. Palmer, 188. 
 Hahn v. Doolittle, 59, 117. 
 Haig V. Commissioners, 248. 
 Haigh V. Kaye, 197. 
 Haines v. Dennett, 89. 
 Hakes v. Hotchkiss, 46, 193. 
 Hugh ''. Kaye, 197. 
 Haines v. Dennett, S9. 
 Hakes v. Hotchkiss, 46, 193. 
 Hale v. Burton, 260. 
 Halford v. Kymer, 362. 
 Hall V. Cazenove, 164. 
 
 v. Cooley, I. 
 
 V. English, 241. 
 
 V. FuUerton, 51. 
 
 V. FlaU, 145. 
 
 V. Mayhevv, 64. 
 
 V. Noble, 103. 
 
 V. O'FIanlon, 201. 
 
 V. Partridge, 85. 
 
 V. Smith, 77. 
 
 V. Storrs, 25. 
 
 V. Urquhart, 245. 
 Halleck v. Guy, 143, 245, 248. 
 Hallen v. Runder, 149. 
 Plalliday v. Hart, 164. 
 Halloway v. Platner, 250. 
 Halsey v. Grant, 72. 
 Ham V. Goodrich, 198. 
 Hamblin v. Warnecke, 239. 
 Hamer v. Sharp, 21, 129. 
 Hamill v. Gillespie, 94. 
 Hamilton, Estate of, 248. 
 
 V. Hamilton, 121, 142. 
 V. Jones, 197. 
 V. Lockhart, 237. 
 V. Reedy, 268. 
 V. Valiant, 194. 
 I'. Windolf, 273. 
 Hamlyn v, Betteley, 214. 
 Hammatt v. Emerson, 53, 57. 
 Hammer v. Johnson, 105, 185. 
 Hammonds v. Barclay, 228. 
 Hamond z\ Holiday, 227. 
 
TABLE OF CASES. 
 
 XXV 
 
 Hampton v, Eubank, 64. 
 
 V. Spreckenagle, 127. 
 Hancock v. Austin, 264. 
 V. Gomez, 176. 
 Hand v. Grant, 26. 
 Haner, Succession of, 29, 
 Hanks v. Pulling, 86. 
 Hanley v. Cassan, 172. 
 Hansford v. Barbour, 250. 
 HansHp v. Padwick, 202. 
 Hanson i;. Armitage, 162. 
 
 V. Edgerly, 53, 6l, 117. 
 V. Roberdeau, 26, 129, 172. 
 Haralson v. Georges, 248. 
 Harbers v. Gadsden, 51. 
 Hardacre v. Stewart, 35. 
 Hardin v. Smith, igg. 
 Harding v. Yarbrough, 248. 
 Ilardingham v. Allen, 236. 
 Hardman v. Bellhouse, 160. 
 Hardwicke, Lord, v. Vernon, 28. 
 Hardy v. Heard, 249. 
 
 ■</. McKesson, 104. 
 V. Metzgar, 4. 
 Hare v. Horton, 92. 
 Plarington v. Hoggart, 176, 1 78. 
 Harkins v. Forsyth, 237. 
 Harlan v. Stout, 237. 
 Harlow v. Sparr, 229. 
 Plarman v. Reeve, 145, 152. 
 Harms v. Salem, 275. 
 Plarnickell v. Orndorff, 249. 
 Plarper v. Little, 32. 
 Harrell v. Word, 1 14. 
 Harrington v. Fish, 4. 
 Harris v. Boggs, 267. 
 
 V. Johnston, 166. 
 V. Lynn, 194, 
 V. MuUins, 117. 
 V. Murray, 250. 
 
 V. Nickerson, 26, 49, 115, 126. 
 V, Pepperell, 54. 
 V. Tyson, 117. 
 Hanison v. Guill, 254. 
 
 V. Harrison, 237. 
 V. Hicks, 174. 
 V. Mock, 125. 
 V. Payne, 215. 
 TJ. Rapp, 250. 
 V. Shanks, 29. 
 V. Talbot, 45, 68. 
 Hart V. Brand, 105. 
 V. Bush, 162. 
 V. Hammett, 46. 
 V. Hector, 144. 
 V. Leach, 281. 
 V. Lindsay, 248. 
 V. Swaine, 51, 71, 
 V. Ten Eyck, 233. 
 V. Woods, 20, 23, 155. 
 Ilarshey v. Blackmarr, 237. 
 
 Harteaux v. Eastman, 250. 
 Hartop, Ex parte, 26. 
 Hartwell v. Gammon, 165. 
 Harvey v. Harris, 88. 
 
 V. Stevens, 20, 150, 155. 
 Haselere v. Lemoyne, 260. 
 Hastings v. Belknap, 264. 
 
 V. Burning Moscow Co., 250. 
 Marquis of, v. Thorley, 276. 
 Hatch V. Cobb, 199. 
 V. Hale, 275. 
 Hatcher v. Hatcher, 198. 
 Hatton V. Williams, 154. 
 Haughton v. Matthews, 229. 
 Havens v. Grand Junction R.R. Co., 
 
 197. 
 Hawkins v. Chace, 154. 
 
 V. Hawkins, 237. 
 V. Hunt, 199. 
 V. Pemberton, 59, 117. 
 V. Rutt, 172. 
 V. Waire, 167. 
 Hawley v. Cramer, 4, 121, 250. 
 Hawpe V. Smith, 194. 
 Hayden v. Dunlap, 250, 251. 
 Hayes v. Harmony Grove Cemetery, 
 125. 
 V. Stiger, 48. 
 Hayford v. Griddle, 72, 77. 
 Haynes v. Breaux, 3. 
 
 V. Crutchlield, 121. 
 V. Swan, 203, 
 Hays, Appeal of, 245, 248, 250. 
 
 V. Mouille, 189. 
 Playter v. Tucker, 149. 
 Hayward v. Ellis, 4. 
 Hazard v. Day, 150. 
 
 V. Hodges, 248. 
 V. Irwin, 57. 
 V. Raymond, 268. 
 Hazletine v. Miller, 34. 
 Hazul V. Dunham, 25. 
 Hazzard v. Burton, ill. 
 Head v. Diggon, 30. 
 
 V. Tattersall, 108, 205. 
 Headen v. Outre, 22. 
 Headley v. Shaw, 103. 
 Hear, Estate of, 4. 
 Hearne v. Tennant, 103. 
 Hearsey v. Pruyn, 176. 
 Heatley v. Newton, 139, 183, 210. 
 Heberer v. Heberer, 248. 
 Heckard v. Sayre, 103. 
 Heffer z/. Martyn, 121. 
 Hegeman v. Johnson, 154, 245. 
 Heilbutt V. Hickson, 206. 
 Heineman v. Heard, 260. 
 Hellawell v. Eastwood, 268. 
 Hemmer v. Cooper, 57. 
 Henderson?/. Barnewall, 29, 155. 
 V. Cummings, 33. 
 
TABLE OF CASES. 
 
 Henderson v. Ford, 31. 
 V. Hays, 250. 
 V. Herrod, 248. 
 Hendrick v. Davis, 196. 
 Hendrickson v. St. Louis R.R. Co., 250. 
 Hening v. Punnett, 237. 
 Henisler v. Nickam, 203. 
 Hennessy v. Old Colony & Newport 
 
 R.R. Co., 82. 
 Henry v. Ferguson, 237. 
 V. Grady, 71, 72. 
 Henshaw i;. Robins, 117. 
 Henson v. King, 59, 117. 
 Hepburn v. Auld, 71, 72, 94, 103, 199. 
 V. Dunlop, $5, 95, 103, no, 
 199. 
 Herbemont v. Sharp, 29. 
 Herbert v. Salisbury & Yeovil Ry. Co., 
 104. 
 V, Smith, 240. 
 Heriot's Hospital, Feoffees of, v. Gib- 
 son, 81. 
 Herndon v. Henderson, 192. 
 
 V. Kimball, 192. 
 Herod v. Hartley, in. 
 Herrick v. Gallagher, 176. 
 Herriman v. Janney, 237. 
 Heseltine v. Siggers, 149. 
 Hess V. Voss, 248. 
 Heth V. Wooldridge, 197. 
 Hewett V. Nanson, 237. 
 Hewlett V. Davis, 91, 171, 248. 
 Hey V. Schooley, 48. 
 Heyman v. Neale, 30, 36. 
 Heyworth v. Hutchinson, 205. 
 
 V. Knight, 154. 
 Hibbert v. Bayley, 36, 127, 175, 223, 
 
 228. 
 Hick V. Phillipps, 71. 
 Hicks V. Ayer, 201. 
 
 ■('. Minturn, 36, 228. 
 V. Perry, 250. 
 Higdon V. Thomas, 154. 
 Higgins V. Curtis, 4. 
 
 I/. Delaware and Hudson R.R. 
 
 Co., 106. 
 V. Peltzer, 250. 
 V. Samuels, 58. 
 V. Senior, 207, 208. 
 Higginson v. Clowes, 4, 45, 46, 53, 66, 
 
 68, 92, 144, 166. 
 High V. Kistner, 118. 
 I'. Nelson, 238. 
 Hiligsberg, Succession of, 251. 
 Hill I/. Balls, 60, n7. 
 V. Buckley, 64. 
 V. Cumberland Valley Protection 
 
 Co., 105, 184. 
 V. Gray, 116. 
 V. Hill, 196. 
 V. Hobart, 104. 
 
 Hill V. Johnston, 154. 
 V. Jordan, 255. 
 V. Packard, 35. 
 V. Peyton, 164. 
 Hilleary v. Thompson, 121. 
 Hillman v. Wilcox, 58, 116. 
 Hills V. Snell, 35. 
 
 V. Street, 281. 
 Hilton V. Bender, 250. 
 Himeley v. Wyatt, 267. 
 Hinde v. Liddell, 203. 
 
 V. Pendleton, 132. 
 V. Whitehouse, 20, 24, 159, 161. 
 Hinds V. Henry, 222. 
 
 V. Scott, 250. 
 Hinton v. Sparkes, no, 179. 
 Hintze v. Stingel, 86, 249. 
 Hipwell V. Knight, 103. 
 Hirsh V. Livingston, 248. 
 Hirshfield v. Davis, 248. 
 Hitchcock V. Giddings, 105. 
 Hitchman v. Walton, 92. 
 Hitz V. National Ins. Co., 239. 
 Hoadly v. McLaine, 145, 152. 
 Hobbs V. Beavers, 122. 
 Hobby V. Finch, 158. 
 Hobson V. Bell, 86, 98. 
 Hodges V. Earl of Litchfield, 181, 202. 
 
 V. Howard, 151. 
 Hodgkinson v. Crowe, 373. 
 Hodgson V. Farrell, 242, 251. 
 -'. Flower, 14, 16. 
 V. Johnson, 146. 
 Hoff V. Crafton, 240. 
 Hoffman v. Anthony, 44, 241, 242. 
 V. Carow, 35. 
 V. Johnson, 108. 
 Hoffman Co. t-. Cumberland Co., 4. 
 Hoge V. Currin, 194. 
 Hogg V. Snaith, 45. 
 Hogg V. Wilkins, 121. 
 Hoggart V. Cutts, 216. 
 Hoitt V. Holcombe, 61. 
 
 V. Webb, 4. 
 Holbrook v. Brenner, 4. 
 Holden v. Sackett, 237. 
 Holder v. Jackson, 123. 
 Holland v. Adair, 250. 
 
 V. Hall, 237. 
 HoUowell V. Skinner, 37. 
 Holman v. Norfolk Bank, 152. 
 Holmes v. Hoskins, 160. 
 V. Mentze, 215. 
 -V. Richmond, 250. 
 V. Shaver, 240. 
 -'. Tutton, 25, 211. 
 Holms V. Johnston, 150. 
 Plolt V. Collyer, 62. 
 
 V. Rogers, 103. 
 Holton V. Gun trip, 21 5. 
 V. Smith, 172. 
 
TABLE OF CASES. 
 
 XXVU 
 
 Holyday v. Morgan, 60. 
 
 Home Sewing Machine Co. v. Sloan, 
 
 267. 
 Honck V. Mullet, 195. 
 Hone V. Henriquez, 229. 
 Honywood v. Honywood, 67. 
 Hood V. Adams, 24. 
 
 V. Bowman, 198. 
 V. Lord Barrington, 22, 150. 
 Hook V. Stevall, 59. 
 
 ■i/. Turner, 121. 
 Hooper v. Goodwin, 238. 
 
 V. Smart, 71. 
 Hoops V. Crowley, 263. 
 Hope V. Booth, 109. 
 Hopkins v. Grazebrook, i lo. 
 
 V. Tanqueray, 117, 1 33. 
 Hopper, Matter of, 268. 
 Hoppes V, Cheek, 202. 
 Horford v. Wilson, 225. 
 Horn V. Baker, 63. 
 
 V. Buck, 58, 1:6. 
 V. Denton, 66. 
 V. Volcano Co., 248. 
 Horniblow v. Shirley, 79. 
 Horsey v. Graham, 146. 
 
 V. Hough, <86, 249. 
 Horsfall v. Hey, 169. 
 Horton v. Green, 59. 
 
 V. Horton, 248. 
 V. McCarty, 126, 128, 158. 
 V. Moyers, 37. 
 Hosack V. Weaver, 4. 
 Hoskins v. Paul, 266, 268. 
 
 V. Wilson, 4. 
 Hosmer v. Sargent, 10. 
 Hotchkiss V. Clifton Air Cure, 86, 95. 
 
 •v. Cutting, 248. 
 Houck V. Cross, 250. 
 Hough V. Rawson, 193. 
 
 V. Richardson, 47, 61, igo. 
 Houghton V. Matthews, 229. 
 Houldsworth v. City of Glasgow Bank, 
 
 34- 
 House V. Fort, 58, 59, 116. 
 
 V. Walker, 249. 
 Housley v. Lindsay, 240. 
 Houston V. Aycock, 248. 
 Hovey v. Blakeman, 227. 
 Howard v. Bates, 165. 
 
 V. Braithwaite, 24. 
 
 V. Castle, 132, 135, 137. 
 
 V. Clark, 211. 
 
 V. Dill, 259. 
 
 V. Easton, 146. 
 
 V. Gould, 53, 117. 
 
 ■V. Lupton, 17. 
 
 ■I/. North, 37. 
 
 v. Ramsay, 266. 
 
 V. Schmidt, 250. 
 
 V. Shaw, 196. 
 
 Howard v. Sheward, 34, 119. 
 Howe V. Alger, 82. 
 V. Bass, 64. 
 V. Batchelder, 148. 
 V. Buffalo R.R. Co., 211. 
 V. Conley, 193. 
 V. Dewing, 228. 
 V. Hay ward, 164. 
 zi. Huntington, 193. 
 V. Sutherland, 260. 
 Howell V. Biddlecom, 61, 117. 
 V. Hester, 248. 
 V. Howell, 142. 
 V. Kightley, 102. 
 V. McCreery, 251. 
 V. Saule, 68. 
 V. Schenck, 86, 92. 
 Howery v. Helms, 4. 
 Hoy V. Smithies, 85. 
 Hoyt, In re, i. 
 Huber v. Armstrong, 248. 
 Hubert v. Moreau, 153. 
 V. Treherne, 154. 
 i/. Turner, 154. 
 Huckins v. Allston, 86. 
 Hudgin V. Hudgin, 248. 
 Hudgins v. Lanier, 222. 
 Hudson V. Hudson, 5, 121. 
 
 V. Weir, 150. 
 HvSv. Earl, 5, 112. 
 
 V. McCawley, 148. 
 Huffman v. Hummer, 103, 104. 
 Huger V. Huger, 4, 239. 
 Hughes, Ex parte, 4, 28, 214, 245.' 
 V, Humpnries, 64. 
 V. Jones, 70, 76. 
 V. Lipscombe, 245. 
 V. Miller, 252. 
 V. Morris, 198. 
 V. Parker, 70. 
 V. Streeter, 48. 
 V. Washington, 126. 
 V. Watt, 250. 
 V. Worthington, 247. 
 V. Wynn, 4, 100. 
 Huguenin v. Baseley, 28. 
 Hull V. Voorhis, 239. 
 Hulse V. Young, 26, 208. 
 Humble v. Hunter, 207. 
 V. Mitchell, 149. 
 Hume V. Bentley, 96. 
 
 V. Pocock, 86, 95. 
 Humphrey v. Havens, 22. 
 
 V. McGill, 196, 250. 
 Humphreys v. Browne, 250. 
 
 V. Comline, 58, 116. 
 Humphries v. Roberts, 250. 
 Hundley v. Lyons, 68, 104. 
 Hungerford v. Scott, 260. 
 Hunn V. Bowne, 188. 
 Hunt V. Bass, 4, 86. 
 
xxvm 
 
 TABLE OF CASES. 
 
 Hunt V. Gregg, 26, 154. 
 V. Hecht, 160, 163. 
 V. McFadgen, 196. 
 V. Philadelphia, 17. 
 V. Rousmaiiier, 32. 
 V. Wimbledon Local Board, 197, 
 
 198. 
 V. Wyman, 109. 
 Yi-wAex, Ex parte, 109, no. 
 v. Jameson, 119. 
 V. Le Conte, 258, 276. 
 V. Osterhoudt, 112. 
 V. Stoneburner, 237, 
 Hunting v. Walter, 85. 
 Huntington v. Knox, 208. 
 Hurley v. Uakcr, 176. 
 
 V. Brown, 151, 159. 
 Hurst V. Holding, 227. 
 Husted V. Dakin, 251. 
 Hutcheon v. Johnson, 52. 
 Hutchins v. Chambers, 273, 274. 
 
 V. Scott, 277. 
 Hutchinson w. Gordon, 35. 
 Hutchmacher v. Harris, 3. 
 Hutton V. Williams, 143, 207, 245. 
 Hyde v. Dallaway, 95. 
 Hydraulic Engineering Co. v. Mc- 
 
 Haffie, 204. 
 Hyman v. Jarnigan, 248. 
 V. Nye, 118. 
 V. Smith, 248. 
 
 IBBETT V. De la Salle, 259. 
 
 Ide V. Stanton, 152. 
 
 Ijams V. Hoffman, 21, 29, 155. 
 
 Illingsworth %'■ Meltenberger, 196. 
 
 Imboden v. Hunter, 239. 
 
 Inchbald v. Western Neilgherry Coffee 
 
 Co., 226. 
 Ingerson v. Starkweather, 126. 
 Ingle V. Richards, 4. 
 Ingram v, Belk, 250. 
 
 ■u. Ingram, 24, 121. 
 Inland v. Bushell, 216. 
 Innis V. McCrummin, 64. 
 Inskeep v. Lacony, 37. 
 Insurance Co. v. Updegraff, 185. 
 Ireland v. Livingston, 23. 
 Irish V. Dean, 164. 
 
 V. Webster, 208. 
 Irvin V. Bleakley, no. 
 Irwin V. Harris, 252. 
 V. Jeffers, 237. 
 Isaac V. Clarke, 29. 
 
 V. Spilsbury, 215. 
 Isbell V. Kenyon, 196. 
 Ish V. Crane, 32. 
 
 Isherwood v, Whitmore, 194, 205. 
 Isler V. Andrews, 3. 
 Isley V. Stewart, 29. 
 Ives V. Ashley, 4. 
 
 Ives V. Carter, 57. 
 V. Hazard, 152. 
 v. Tregent, 25. 
 
 Jacks -'. Smith, 258. 
 Jackson v. Allen, 112. 
 
 V. Barringer, 64. 
 
 V. Brooks, 5. 
 
 V. Brownson, 112. 
 
 V. Catlin, 168. 
 
 V. Crafts, 114. 
 
 V. Edwards, 193. 
 
 V. Harris, 242. 
 
 V. Jackson, 93. 
 
 V. Lowe, 159. 
 
 ■V. McConnell, 64. 
 
 ■u. iloore, 64. 
 
 £'. Morter, 121. 
 
 1'. Newton, 251. 
 
 V. Oakshott, 98. 
 
 V. Rosevelt, 250. 
 
 V. Schutz, n 2. 
 
 V. Speed, 104. 
 
 V. Stapherd, 40. 
 
 V. Van Dalfsen, 4. 
 
 V. Van Dusen, 154. 
 
 V. Walsh, 4« 
 
 V. Warren, 3, 248. 
 Jackson Ins. Co. v. Partee, 2, 234. 
 Jacob V. King, 27S. 
 V. Kirke, 153. 
 Jacobs, Case of, 36. 
 
 V. Pollard, 259. 
 V. Turpin, 91. 
 Jacqbson v. Blackhurst, 217. 
 Jacques v. Millar, 196. 
 Jagers v. Griffin, 192. 
 James v. Corker, 248, 254. 
 V. James, 4. 
 ■V. Patten, 154. 
 V. Shore, 148, 168. 
 V. State Bank, 54, 55. 
 January v. Martin, 105. 
 Janvrin v. Maxwell, 162. 
 Jarboe v. Calvin, 241. 
 Jean v. Spurrier, 258, 273. 
 Jeffries v. Wiester, 126. 
 Jefts V. York, 33. 
 Jendwine v. Slade, 59. 
 Jenkins v. Calvert, 263. 
 
 V. Eldridge, 197. 
 
 V. Frink, 121. 
 
 1'. Hutchison, 210. 
 
 ■c: Hogg, 121,126,132,134,154. 
 Jenner %'. Clegg, 257. 
 
 V. Smith, 186. 
 
 V. YoUand, 281. 
 Jenness v. Mt. Hope Iron Co., 153. 
 
 -■. Wendell, 149, 162. 
 Jennings v. Eroughton, 55, 56. 
 V. Jennings, 81. 
 
TABLE OF CASES. 
 
 XXIX 
 
 Jennings v. Monks, 66. 
 
 Jennison v. Hapgood, 4, 5. 
 
 Jensen v. Winlander, 56. 
 
 Jersey, Earl of, v. Briton Ferry Floating 
 
 Dock Co., 185. 
 Jervoise v. Clark, 140. 
 Jewett V. Miller, 5, 76. 
 V. Warren, 163. 
 John V. Jenkins, 262. 
 Johns 57. Norris, 5. 
 
 V. Sargeant, 29. 
 ■u. Slack, 241. 
 V. Trick, 195. 
 Johnson v. Bennett, 4. 
 
 J/. Buck, 23, 155,157, 158,159, 
 
 160, 228, 229. 
 V. Burns, 4. 
 V. Campbell, 231. 
 V. Credit Lyonnais Co., 32. 
 V. Cuttle, 163. 
 V. Dodgson, 153. 
 ■V. Dorsey, 86, 249. 
 ■u. Garrett, 241, 246. 
 V. Glancey, igy. 
 V. Hambleton, 241. 
 V. Hovey, 251. 
 V. Hubbell, 198. 
 V. Hudson, 9. 
 V. Kellogg, 159. 
 V. Pollock, 164. 
 V. Quarles, 248. 
 V. Reese, 36. 
 V. Ronald, 152. 
 V. Smart, 57, 62. 
 V. Smiley, 95. 
 z/. Smith, ^'^. 
 i/. Taber, 64. 
 V. Upham, 275, 279. 
 V. Wilcox, 32. 
 ■V. Wygant, 193. 
 Johnston v. Beard, 104. 
 V. Eason, 1 14. 
 v. La Motte, 121. 
 V. Shaw, 251. 
 Joliff V. Bendell, 60. 
 V. JoUand, 232. 
 JoMe V. Hite, 108. 
 Jolly V. Young, 165. 
 Jones, Ex parte, 122, 123. 
 
 Jn re Settled Estates of, 240. 
 
 V. Bradner, 165. 
 
 V. Burden, 248. 
 
 ■u. Calloway, 250. 
 
 Tj. Caswell, 121. 
 
 ■V. Clark, 255. 
 
 ■V. Clifford, 51, 52, 96. 
 
 V. Conde, 237. 
 
 V. Davis, 250. 
 
 V. Dyke, 33. 
 
 V. Edney, 45, 61. 
 
 V. Emery, 192. 
 
 Jones V. Flint, 147. 
 
 V. Fulgham, 37. 
 
 V. Gundrim, 258. 
 
 V. Hart, 208. 
 
 V. Hollingsworth, 248. 
 
 V. Hoss's Succession, 195. 
 
 V. Just, 118. 
 
 V. Keep, 170. 
 
 V. Littledale, 26. 
 
 V. Marsh, 193. 
 
 V. Nanney, 30, 36, 126, 227. 
 
 V. Null, 196. 
 
 z'. Portsmouth R.R. Co., 121. 
 
 V. Rimmer, 51, 53, 79. 
 
 V. Robbins, 103. 
 
 V. Roberts, 112. 
 
 V. Rucker, 195. 
 
 V. Tatum, 66. 
 
 V. Taylor, 94. 
 
 V. Thacker, 25. 
 
 V. Thomas, 214. 
 
 V. Victoria Graving Dock Co., 
 
 157- 
 
 V. Wood, 202. 
 Jordan v. James, 188. 
 
 V. Smith, 8. 
 Jorey, In re, i. 
 Josephs V. Pebrer, 227. 
 Joy V. Berdell, 4. 
 Joyce V. Madison Bank, 252. 
 Judge V. Booge, 196. 
 Judson V. Wass, 85, 96. 
 
 Kable v. Mitchell, 245, 24S, 249. 
 Kain v. Masterton, 248, 249. 
 Karns v. McKinney, 267. 
 Kartwright v. Buffalo Bank, 22. 
 Kaufifman v. Walker, 238, 242, 248. 
 Kaufman v. Myers, 252. 
 Kavanagh v, Cuthbert, 36, 228. 
 Kay V. Curd, 151, 153, 159. 
 Kean v. Newell, 37. 
 Kearney v. Taylor, 121. 
 Keaton v. Cobb, 4. 
 Keatts V. Rektor, 198. 
 Keay v. N.O. Canal Co., 82. 
 Keeler v. Davis, 112. 
 
 V. Goodwin, 188. 
 V. Tatnell, 146. 
 Keen v. Priest, 271. 
 Keene v. Dee, 256. 
 Keith V. Reid, 112. 
 Keiwert v. Meyer, 163. 
 Kell V. Nokes, 179. 
 Keller v. Weber, 252, 256. 
 Kelley v. Bradford, 85. 
 Kellogg V. Cavrico, 241. 
 
 V. Wood, 4. 
 Kelly V. Bradford, 95. 
 
 V. Creen, 251. 
 
 V. Green, 196. 
 
xxx 
 
 TABLE OF CASES. 
 
 Kelly V. Thompson, 171, 180. 
 
 V. Webs.ter, 146. 
 Kelty V. Second Bank, 175. 
 Kemeys v. Proctor, 20. 
 Kendall v. Alniy, 53. 
 Kennedy v. Clayton, iii. 
 V. Kennedy, 197. 
 Lord, V. Panama Mail Co., 
 191, 204. 
 Kenner v. Harding, 58, 116. 
 Kenney v. Wexham, 105. 
 Kent V. Bornstein, 208. 
 
 V. Carcaud, 64, 192. 
 
 V. Dawson Bank, 37. 
 
 V. Whitney, 4. 
 Kenworthy v. Schofield, 29, 47, 127, 
 
 144, 160. 
 Kerby v. Harding, 278. 
 Keefoot v. Hyman, 126. 
 Kern v, Chalfant, 4. 
 Kerr v. Sharp, 22, 278, 279. 
 Kershaw v. Ogden, 161. 
 
 I'. Thompson, 248. 
 Kerslake v. Schoonmaker, 35. 
 Kerwer v. Allen, 121. 
 Kessinger v. Whittaker, 248. 
 Kester v. Rockel, 105. 
 Ketchum v. Stout, 64. 
 
 V. Wells, 117. 
 Kettlewell -'. Watson, 109. 
 Ketzner v. Bradstreet, 237. 
 Keyes v. Heyden, 95. 
 Kiddell v. Burnard, 59. 
 Kidder v. Barr, 197. 
 Kidderminster, Mayor of, v. Hardwick, 
 
 22, 197. 
 Kiley v. Forsee, 22. 
 Kilgore -'. Peden, 194. 
 Kilgour V. Gockley, 237. 
 Killian v, Hoffman, 282. 
 Kindell v. Titus, 237. 
 Kingw Bardeau, 53, 71, 72. 
 
 V. Buckman, 103. 
 
 V. Cushman, 251. 
 
 V. England, 280. 
 
 V. Gunnison, 143, 245. 
 
 V. Hamilton, 68, 103. 
 
 V. Howard, io8. 
 
 V. Morris, 248. 
 
 V. Piatt, 85, 241, 249, 250. 
 
 V. Preston, 105, 185. 
 
 V. Tharp, 251. 
 
 V. Wilson, 64, 66. 
 Kingsbury -'. Taylor, 207. 
 Kingsley v. Holbrook, 147, 148. 
 Kingsman v. Kingsman, 34. 
 Kinley v. Fitzpatrick, 59, 117. 
 Kinloch v. Savage, 152. 
 Kinnaird v. Smith, 51, 62, 190. 
 Kinnard v. Christee, 107. 
 Kinnear v. Lear, 250. 
 
 Kinney v. Knoebel, 203, 252. 
 
 V. Showdy, 123. 
 Kinnitz v. Surrey, 21, 161. 
 Kintzing v. McElrath, 117. 
 Kirkland v. Texas Express Co., 114. 
 Kirkman v. Booth, 227. 
 Kirkpatrick v. Stainer, 209. 
 Kirtland v. Pounsett, i lo. 
 Kirwan v. Latour, 64. 
 Kitson V. Hardwick, 418. 
 Kittridge v. Ribas, 270. 
 Kleber v. Ward, 266. 
 Klohs V. Reifsayder, 3. 
 Klopp v. Witmoyer, 250, 251. 
 Knarr v. Conaway, 237. 
 KnatchbuU v. Grueber, 52. 
 Kneeland v. Smith, 248. 
 Knight V. Barber, 149, 164, 167, 192. 
 
 •v. Bennett, 258. 
 
 1. Bunn, 46. 
 
 V. Crockford, 153. 
 
 u. Herrin, 29. 
 
 V. Lord Plymouth, 231. 
 
 V. Maloney, 240. 
 
 V, Mann, 162, 164. 
 Kniper v. Louisville, 7. 
 Knott V. Cottee, 237. 
 Knox V. King, 150. 
 Knuckolls V. Lea, 192. 
 Koch V. Purcell, 240. 
 Koehler v. Ball, 248. 
 Koehring v. Muemminghofif, 164. 
 Kohler v. Kohler, 95. 
 Koontz V. Northern Bank, 237. 
 Kornegay v. White, 60. 
 Kostenbader "'. Spotts, 85. 
 Kramer v, Rebman, 237. 
 Krider v. Western College, 33. 
 Krone v. Linville, 248. 
 Kronschnable v. Knoblauch, 250. 
 KrophoUer &. Minneapolis R.R. Co., 
 
 121. 
 Kruse v. Steffens, 4, 239, 
 Kurtz V. Cummings, 128. 
 Kyle V. Kavanagh, 48, 52. 
 
 Lacey, Ex parte, 141. 
 
 V. Wieland, 214. 
 Lachlan v. Reynolds, 87. 
 Ladd V. Arkell, 208. 
 
 1'. Shippie, 116. 
 
 -V. Thomas, 275. 
 Ladue v. Detroit & Milwaukee R.R. 
 
 Co., 255. 
 Lafferty v. Conn, 250. 
 Laidlaw v. Organ, 117. 
 Laight V. Pell, 87. 
 Laing i>. Plain, 89. 
 
 V. Zeden, 218. 
 Laird v. Pim, 195. 
 Lake v. Dean, 104. 
 
TABLE OF CASES. 
 
 XXXI 
 
 Lallande v. Wentz, 8i, 95. 
 Lamberton v. Merchants' Bank, 251. 
 Lamerson v. Marvin, 241. 
 Lamkin v. Crawford, 195. 
 
 V. Reese, 203. 
 Lamond v. Devalle, 200. 
 Lamotte v. Wisner, 277. 
 Landes v. Brant, 250. 
 
 V. Perkins, 250. 
 Lane v. Tewson, 228. 
 
 V. White, 195. 
 Lanford v. Selmes, 61. 
 Langdon v. Summers, 25. 
 Langsdale v. Mills, 85. 
 Langstaffi'. Nicholson, 152. 
 Lansing v. McPherson, 239. 
 
 V. Rattone, 273, 275. 
 Lantz V. Worthington, 1 16, 247. 
 Lapham v. Whipple, 166. 
 Lara v. Hill, 225. 
 V. Nash, 179. 
 Lasell V. Powell, 248. 
 Lashley v. Cassell, 251. 
 Latham v. Barber, 149. 
 
 V. Morrow, 131, 132. 
 Lathrop v. Havlow, 23. 
 Latrobe v, Herbert, 237. 
 Laughlin v. Heer, 195. 
 
 V. Schuyler, 85. 
 Lausatt v. Lippincott, 29, 114. 
 Lavender v. Latimer, 244. 
 Laverty v. Chamberlin, 248. 
 V. Mooi-e, 248. 
 71. Snethen, 37. 
 Law V. Stokes, 25. 
 z'. Urlwin, 72. 
 Lawes v, Gibson, 79. 
 Lawrence v. Birdsdale, 250. 
 ■V. Dale, 192. 
 c Gallagher, 165. 
 v. Staigg, 66. 
 v. Young, 251. 
 Lawrie v. Lees, 102. 
 Lawson v. Jordan, 250. 
 Lawton v. Hickman, 227. 
 V. Keil, 59, 117. 
 V. Lawton, 92. 
 Lay V. Neville, 250. 
 Laycock v. Davidson, 164. 
 Laythoarp v. Bryant, 146, 1 50, 1 53. 
 Layton v. Hennen, 45. 
 Lazarus v. Bryson, 29. 
 Le Breton v. Pierce, 232. 
 Lea V. Yard, 9. 
 Leach v. Mullett, 52, 56, 69. 
 Learned v. Matthews, 248. 
 Lecky v. McDermott, 4. 
 Lecoy v. Mogford, 61. 
 Ledyard v. Manning, 193. 
 
 V. Phillips, 240. 
 Lee V. Bayes (or Robinson), 4, 35. 
 
 Lee V. Gaskell, 149. 
 V. Hester, 45. 
 V. Howell, 4. 
 V. Lee, 91, 132. 
 V. Mahony, 128. 
 Z'. Munn, 178. 
 Leeds v. Bowen, 228. 
 V. Burrows, 39. 
 Lees V. Nuttall, 28. 
 Leete v. Norton, 222. 
 Lefevre v. Laraway, 241, 249, 250. 
 Lefferson v. Dallas, 198. 
 Lehigh Coal Co. v. Mohr, 32. 
 Leigh V. Shepherd, 256, 259. 
 Leitch V. Owings, 270. 
 Leland v. Wilson, 250. 
 Lenihan v. Hamann, 95. 
 Lenox v. Notrebe, 4. 
 Leonard v. Davis, 163. 
 ■u. Taylor, 249. 
 Lerned v. Wannemacher, 128, 150. 
 Leroux v. Brown, 146. 
 Lesassier v. Dashiell, 64. 
 Leslie v. Tompson, 54, 56, 107. 
 Lester v. Foxcroft, 198. 
 
 V. Kinney, 22, ig8. 
 
 V. White, 146. 
 Lethbridge v. Kirkman, no. 
 Leven v. Smith, 164. 
 Leverick v. Meigs, 114. 
 Levi V. Barnes, 220. 
 
 V. Levi, 122. 
 Levy V. Cavanagh, 36. 
 
 V, Lindo, 103. 
 Lewin v. Guest, 148. 
 Lewis, Ex parte, 125. 
 
 Estate of, 204. 
 
 ■u. Bond, 77. 
 
 ■V. Bright, 7. 
 
 -u. Gray, 166. 
 
 V. Herndon, .85, 95. 
 
 ■u, Kerr, 32. 
 
 ■u. Lechmere, 88. 
 
 V. McLemore, 48, 53. 
 
 ■u. McMillen, 192. 
 
 V. Nicholson, 210. 
 
 V. Read, 259. 
 
 V. Reed, 29. 
 
 V. Wells, 152, 154. 
 Lewis Street, Matter of, 82. 
 Leyland v. Illingworth, 58. 
 Lickbarrow v. Mason, 188. 
 Lightfoot V. Heron, 124. 
 Like V. McKinstry, 114. 
 Lillywhite v. Devereux, 161. 
 Lincoln v. Wright, 197. 
 Lingham v. Eggleston, 187. 
 Linkous v. Cooper, 85, 95. 
 Linn Boyd Tobacco Warehouse Co. v. 
 
 Terrill, 20, 154. 
 LinnendoU v. Doe, 1 1 2. 
 
xxxu 
 
 TABLE OF CASES. 
 
 Linton v. Hichborn, 193. 
 Litchfield v. Cudworth, 4. 
 Littell V. Zuntz, 239, 249. 
 Little V. Woodworth, 117. 
 Littlefield v. Tinsley, 85, 95. 
 Livingston v. Byrne, 45, 249, 250. 
 V. Cochran, 4. 
 V. New York, 82. 
 V. Newkirk, 189. 
 V. Ralli, 108. 
 Lloyd, Ex parte, 92. 
 ■V. Erwin, 2H. 
 Lobb V. Stanley, 153. 
 Lockwood V, Maguire, 249. 
 Loft, In re, 27. 
 Lomi V. Tucker, 58. 
 London, Corporation of, v. Riggs, 76. 
 London and Birmingham Ry. Co. -'. 
 
 Winter, 21, 46. 
 London and Suburban Land and Build- 
 ing Co. V. Field, 62. 
 Long V. Collier, loi. 
 
 V. Joplin Mining Co., 3. 
 
 V. Millar, 157, 158, 209. 
 
 V. Neville, 211. 
 
 V. Pool, 23. 
 
 V. Waller, 54, 66, 241, 248. 
 Longstaff v. Meagoe, 92. 
 Longwell V, Riainger, 275. 
 Loomis V. Wheeler, 248. 
 Lord Brook v. Rounthwaite, 51, 68, 
 321. 
 
 Chichester v. Hall, 79. 
 
 Fitzhardinge ''. Pritchett, 92. 
 
 Hardwicke v. Vernon, 28. 
 
 Kennedy t^.Panama Mail Co., 191, 
 204. 
 
 North's Case, 37. 
 
 Seaforth, Ex parte, 109. 
 Lord V. Brown, 259. 
 
 V. Lord, 244. 
 
 V. Stephen, 88. 
 Loring v. Otis, 82. 
 Lorymer v. Smith, 205. 
 Losee v. Sauton, 193. 
 Loucks V. Union Bank, 250. 
 Lougee v. Colton, 260. 
 Loundes v. Chisholm, 240. 
 Love V. Cherry, 250. 
 
 V. Love, I. 
 Lovelock V. Franklin, 168. 
 Low V. Marshall, 193. 
 Loyd ». Malone, 121. 
 Lucas V. Dicker, 125. 
 V. James, 153. 
 V. Moore, 241, 248. 
 T.uckett V. Williamson, 94, 197, 199. 
 Ludden v. Kincaid, 37. 
 Ludwick V. Huntzinger, 85, 95. 
 Lnmley v, Wagner, III. 
 LumjDkin v. Wilson, 24. 
 
 Lund V. Equitable Life Assurance So- 
 ciety, 192. 
 
 V. Seamen's Bank, 35. 
 Lunt V. Holland, 82. 
 Lupton V. Almy, 248. 
 Lusk V. Salter, 250. 
 Lynch v. Baxter, 248. 
 
 V. Commonwealth, 37. 
 Lyon V. Annable, 71, 72. 
 
 V. Elliott, 209. 
 
 d. Houk, 276. 
 
 V. Tomkies, 280. 
 
 V. Weldon, 279. 
 Lyons v. Elliott, 24, 112, 113, 266, 267. 
 Lysaght v. Edwards, 105, 185. 
 Lysney v. Selby, 74. 
 Lytle V. Bird, 61, 117. 
 
 Maberly v. Robins, 181. 
 McAnulty v. Hodges, 192. 
 McAusland v. Pundt, 250. 
 McBain v. Wallace, 186. 
 McBride v. Longworth, 239. 
 McCahill v. Equitable Life Society, 240. 
 McCall, Appeal of, 237. 
 
 Succession of, 245, 252. 
 V. Elliott, 84. 
 McCelvey v. Thompson, 239. 
 JlcClellan v. Scott, 58. 
 McClendon v. Kemp, 250. 
 McClintock, Appeal of, 248. 
 
 V. Graham, 64. 
 McClure v. Miller, 5. 
 
 V. Williams, 195. 
 McCollin V. Gilpin, 151, i66. 
 McComb V. Wright, 20, 23, 85, 95, 129. 
 McConnell z'. Brillhart, 154. 
 
 V. Gibson, 239. 
 McCormick v. Dunville, 109. 
 McCotter v. Jay, 245. 
 McCown V. Foster, 237. 
 McCready v. Sexton, 204. 
 McCreery v. Claflin, 267. 
 McCuUoch V. Gregory, 182. 
 
 -'. Scott, 192. 
 McCurdy v. Rogers, 33. 
 McDaniel v. Moody, 64. 
 McDermid v. Colton, 23. 
 McDermot -'. McDermot, 85. 
 McDonald v. Longbottom, 46, 151, 
 
 V. Neilson, 86. 
 McDowell V. Simms, 131, 132. 
 McEIroy v. Buck, 152. 
 V. Dice, 273. 
 McFarland v. Newman, 59, 117. 
 McFarson's Appeal, 152. 
 McFerran v. Taylor, 53. 
 McGavock v. Woodlief, 224. 
 McGill V. Doe, 23S. 
 McGinn v. Shaeffer, 5. 
 McGovern v. Hoesback, 170. 
 
TABLE OF CASES. 
 
 XXXUl 
 
 McGowan v. McGowan, 4. 
 McGown V. Sandford, 86. 
 
 V. Wilkins, 95. 
 McGregor, Ex parte, 237. 
 
 V. Penn, 59, 117. 
 McGrew v. Forsythe, 29. 
 McHany v. Schenck, 250, 251. 
 Mcliityre v. Kennedy, 175. 
 
 V. Park, 22. 
 McKay v. Melvin, 104, 105. 
 McKechnie v. Sterling, 105, 184. 
 McKee v. Linberger, 26. 
 
 V. Phillips, 198. 
 McKeen v. Beaupland, 192. 
 McKenzie v. Hesketh, 54, 65, 66. 
 
 McKincher v. Hawley, 254, 255. 
 
 McKinney v. Reader, 278, 279. 
 
 McKnight V. Dunlop, 1 60. 
 V. Gordon, 21. 
 
 McKubin v. Clarkson, 197, 198. 
 
 McLean v. Dunn, 21, 200. 
 V. Green, 86. 
 
 McLean County Bank v. Flagg, 251. 
 
 McLellan v. Cumberland Bank, 89. 
 
 McLeod V. Jones, 27, 113. 
 v. Pearce, III. 
 
 McMahan v. Tyson, 252 
 
 McMaster v. McPhersor., 27, 113. 
 
 McMasters v. Commissioner, 115. 
 
 McMechen v. Baltimore, 9, 24. 
 
 McMeekin v. Edmonds, 192. 
 
 McMillan v. Causey, 192. 
 
 McMillen v. Terrill, 154. 
 
 McMinn v. Phipps, 121. 
 
 McMuUten v. Gable, 249. 
 
 McMurray v. Spicer, 70. 
 
 McNaughton v. Partridge, 192. 
 
 McNeal v. Emerson, 27, 113. 
 
 McNeely v. Hart, in. 
 
 McNeven v. Livingston, 192. 
 
 McPherson v. Watt, 125. 
 
 McSwean v. Faulks, 248. 
 
 McVeigh v. Bank of Old Dominion, 
 233. 
 
 McVey v. McVey, 248. 
 
 McWhorter v. McMahan, 154. 
 
 Macarty, Succession of, 219. 
 
 Mackaness v. Long, 188. 
 
 Mackay v. Dick, 191. 
 
 Macon Episcopal Church v. Wiley, 23. 
 
 Maddox v. Sullivan, 250. 
 
 Maddux v. Bevan, 22. 
 
 Madeley v. Booth, 72. 
 
 Magennis v. Fallon, 57. 
 
 Magrane v. Archbold, 121. 
 
 Mainprice v. Westley, 26, 116, 127, 133. 
 
 Maitland v. Martin, 35, 230, 259. 
 
 Majennis v. Fallon, 57. 
 
 Makepeace v. Bancroft, 165. 
 
 Malins v. Brown, 198. 
 
 V. Freeman, 55, 140, 192. 
 
 Maltby v. Christie, 220, 231. 
 Maney v. Porter, 202. 
 Manico v. Millen, 1 1 2. 
 Mann v. Pearson, 64. 
 Manning v. Albee, 57. 
 V. Bailey, 93. 
 V. Gasharie, 21. 
 V. Lunn, 276. 
 Mansell v. Clements, 222. 
 Manser v. Back, 30, 45, 46, 53, 56. 
 Manson v. Hope, 17. 
 
 V. Thacker, 52. 
 Maple V. Kussart, 238. 
 Mapp V. Phillips, 21. 
 Mapps V. Sharpe, 142. 
 Marbury v. Stonestreet, 66. 
 March v. Eastern R.R. Co., 108. 
 V. Ludlum, 250. 
 V. Mobile Bank, iiS. 
 Marckle v. Haskins, 119. 
 Marine Bank v. Fulton Bank, 234. 
 Marlett v. Jackman, 32. 
 
 V. Warwick, 249. 
 Marmaduke v. Tennant, 49. 
 Marquis of Hastings v. Thorley, 276. 
 of Townshend v. Stangroom, 
 46. 
 Marrett v. Brackett, 174. 
 Marriott v. Hampton, 1 20. 
 Marryatt v. Broderick, 176. 
 Mars V. Connor, 197. 
 Marsh v. Jelf, 27. 
 
 V. Ridgway, 37. 
 ■V. Webber, 207. 
 V. Whitmore, 4, 36, 126. 
 Marshall v. Berridge, 151. 
 V. Ferguson, 147. 
 zi. Green, 147, 148, 162. 
 V. Knox, 252. 
 V. Parsons, 220. 
 V. Perry, 109. 
 V. Rose, 171. 
 Marten v. Wharton, 146. 
 Martin v. Beasley, 240. 
 
 V. Black, 264, 268. 
 V. Hargadine, 239, 241. 
 V. Pace, 240. 
 V. Pycroft, 46. 
 V. Ranlett, 121. 
 V. Silliman, 222, 223. 
 V. Tarver, 192. 
 V. Thrasher, 193. 
 V. Tower, 192. 
 V. Turner, 237. 
 Martindale v. Smith, 199, 203. 
 Mar\'in v. Bennett, 64. 
 V. Wallis, 162. 
 Marye v. Dyche, 252. 
 Maryland Ins. Co. v. Dalrymple, 282. 
 Maryland Permanent Land & Building 
 Society v. Smith, 171. 
 
XXXIV 
 
 TABLE OF CASES. 
 
 Maryland Savings Bank v. Schroeder, 
 
 199. 
 Mason v. Armitage, 23, 30, 121, 142. 
 'J. Crosby, 190, 192. 
 I'. Martin, 4. 
 V. Osgood, 248. 
 V. Thomas, 52. 
 Massey v. Banner, 231, 233. 
 V. Davies, 28. 
 V. Massey, 248. 
 Masson v. Bovet, 192. 
 Master v. Hansard, 75. 
 Mather v. Scoles, 147. 
 Mathews v. Clifton, 250. 
 V. Dragaud, 4. 
 u. Eddy, 24S. 
 Mathison v. Clarke, 227. 
 Matlock V. Bigbee, 192. 
 Matta V. Henderson, 192. 
 Matteson v. Holt, 5 1 . 
 Matthews v. Baxter, 124. 
 V. Bliss, 1 1 8. 
 V. Gillis, 35. 
 V. Matthews, 67. 
 V. Parker, 60. 
 V. Stone, 266, 270. 
 Mauri V. Heffernan, 129, 209. 
 Mawson -'. Fletcher, 98. 
 May V. Thomas, 250. 
 Mayer v. Adrian, 85. 
 Maynard v. Maynard, 61, 118. 
 Mayo V. Foley, 250. 
 
 V. Purcell, 104, 192. 
 Mayor of Kidderminster v. Hardwick, 
 
 22, 197. 
 Mazoue v. Caze, 204. 
 Meacham v. Steele, 85, 241. 
 Mead v. Fox, 86. 
 
 •i/. Thompson, 252. 
 Meadows v. Meadows, 154, 1 55. 
 
 V. Tanner, 139. 
 Mealey v. Page, 196. 
 Mealor v. Earl Talbot, 214. 
 jlechanics' Bank %•. Lynn, 103. 
 
 V. RIerchants' Bank, 
 
 36. 
 Mechanics' & Traders' Bank v. Far- 
 mers' & Mechanics' Bank, 163, 164. 
 Mechelen -'. Wallace, 25S. 
 Medbury v. Watson, 57. 
 Meech v. Bennett, 121. 
 Meehan v. Forrester, 22. 
 Meek v. Bayliss, 357. 
 
 V. Spencer, 201. 
 Meeker v. Claghorn, 209. 
 ■V. Evans, 85, 241. 
 ■u. Wilson, 250. 
 Meiggs V. Meiggs, 232. 
 Mellen v. Boarman, 195. 
 Mellish -'. Motteux, 60. 
 Meng V. Houser, gi. 
 
 Menkens v. Watson, 33. 
 Mercer v. Nevvsom, 4, 239. 
 Mercereau v. Prest, 250. 
 Merchants' Ins. Co. v. Mazange, 185. 
 Meredith v. Meigh, 162. 
 V. Naish, 198. 
 Merkle v. O'Neal, 256. 
 Merrick, Estate of, 32, 208. 
 
 V. Bradley, 60. 
 Merry weather v. Nixon, 1 20, 228. 
 Merwin v. Smith, 195, 241, 242. 
 Mesnard v. Aldridge, 89, 115. 
 Metcalfe v. Clough, 235. 
 Metropolitan Ry. Co. v. Defries, 104. 
 Mevey's Appeal, 251. 
 Mews V. Carr, 23, 28, 129, 154, 157. 
 Meyer v. Baldwin, 22. 
 
 V. Bishop, 29. 
 Meyers v. White, 254. 
 Meymott v. Meymott, 221. 
 Michel V. Kaiser. 121. 
 Michod V. Gerod, 4, 239. 
 Middlesex Bank v. Minot, 282. 
 Miles V. Bernard, 22S. 
 
 V. Furber, 24, 267. 
 
 V. Wheeler, 4, 239. 
 Milford V. Flughes, 1 7. 
 Millar v. Campbell, 133. 
 Millard v. Robinson, 268. 
 Millenovich, Estate of, 239. 
 Miller v. Barber, 58. 
 
 V. Barnard, 131. 
 
 ■c. Beal, 227. 
 
 V. Board of Education, 21. 
 
 V. Cherry, 250. 
 
 7'. CoUyer, 196. 
 
 V. Feezor, 201. 
 
 V. Fraley, 250. 
 
 ■v. Hall, 237, 248. 
 
 J'. Kolb, 240. 
 
 V, Law, 116. 
 
 V. Lea, 114. 
 
 V. Long, 202. 
 
 v. Palmer, 95, 192. 
 
 IK Pelletier, 154. 
 
 V. Plumb, 93. 
 
 V. Sherry, 237. 
 
 V. Smith, 249. 
 
 V. Specht, 146. 
 Millican v. Vanderplank, 248. 
 Milliken v. Thorndike, 190. 
 Millingar v. Daly, 52. 
 Mills V. Goodsell, 29. 
 
 V. Hallock, 188. 
 
 V. Hunt, 27, 119, 129, 149, 162, 
 211. 
 
 r-. Oddy, 51, 79, 181. 
 
 V. Ralston, 248. 
 
 V, Rogers, 121. 
 Milnes v. Gery, 150, 152. 
 Milnor v. Willard, 130. 
 
TABLE OF CASES. 
 
 XXXV 
 
 Miltenberger v. Beercom, 185. 
 V. Morrison, 121. 
 Minchin v. Nance, 340. 
 Minnesota Co. v. St. Paul Co., 85, 244. 
 Minor, Ex parte, 248. 
 V. Barker, 176. 
 V. Natchez, 250. 
 Minshall v. Lloyd, 146, 149. 
 Minter, v. Dent, 196. 
 Minturn v. Allen, 10. 
 
 V. Main, 10, 26, 208. 
 Minuse v. Cox, 86. 
 Mirabita v. Imperial Ottoman Bank, 
 
 187. 
 Miranville v. Silverthorn, 146. 
 Missouri River R. R. Co. v. Miami 
 
 County, 22. 
 Missisquoi Bank v. Sabin, 142. 
 Mitchell V. Bartlett, 193, 248. 
 V. Berry, 4. 
 V. Bliss, 249. 
 ■u. Evans, 250. 
 V. Harris, 248, 249. 
 V. Hayne, 217. 
 V. Lipe, 250. 
 V. McKinney, 240. 
 V. McMullen, 4. 
 Moale V. Baltimoi-e, 82. 
 Mobile Cotton Press v. Moore, 36. 
 Mobley v. Dent, 252. 
 Modisett v, Johnson, 53. 
 Modlen v. Snowl^all, 61. 
 Mody V. Gregson, 1 1 8. 
 Moeser v. Wisker, 109. 
 Mohawk Bank v. Atwater, 86, 241, 251. 
 MuUoy V. Egan, 103. 
 Molton V. Camroux, 123. 
 Monaghan v. Small, 85. 
 Moncriffz;. Goldsboro, 131. 
 Moneypenny v, Hartland, 42. 
 Monro v. Taylor, 71, loi. 
 Montague v. Dawes, 241. 
 Monte Allegro, The, 29, 119. 
 Montgomery v. Barrow, Ii5, 251. 
 V. Tutt, 248. 
 V. Williamson, 248. 
 Moody V. West, 237. 
 Moon V. Whitney Union, 29. 
 Mooney -'. Miller, 55, 57, 61. 
 Moore, In re, 125. 
 V. Akin, 195. 
 V. Appleton, 211. 
 V. Hilton, 5. 
 V. Mourgue, 24. 
 V. Owsley, 82. 
 V. Pye, 127. 
 ■V. Shultz, 237, 248. 
 Tj. Titman, 242. 
 V. Williamson, 237. 
 Moran v. Prather, 165. 
 More V. Smedburgh, 94. 
 
 Morehead v. Hunt, 131, 134. 
 Morgan v. Darragh, 22. 
 V. Mason, 227. 
 V. Moore, 82. 
 V. Morgan, 85. 
 V. Oberly, 250. 
 V. Powers, 117. 
 V. Swansea Urban Sanitary 
 
 Authority, 185, 195. 
 V. Tener, 37. 
 V. Wattles, 4. 
 Morland v. Bowling, 251. 
 Morley v. Attenborougb, 194. 
 V. Cook, 88, 98, no. 
 V. Pincombe, 269. 
 Morrill V. Bemis, 59, 117. 
 V. Carr, 4. 
 
 V. Wallace, 57, 59, 117. 
 Morris v. Allen, 37. 
 
 V. Kearsley, 88. 
 V. Mowatt, 85. 
 V. Robey, 251. 
 ■u. Thompson, 6r, 117. 
 V. Woodward, 121. 
 Morris Canal Co. v. Bennett, 64. 
 V, Emmett, 64. 
 V. Lewis, 282. 
 Morrison v. Ives, 193. 
 
 V. McLeod, 124. 
 V, Whetstone, 250. 
 Morse v. Royal, 28. 
 Morss V. Elmendorff, 68. 
 Mortimer v. Bell, 134, 136. 
 Mortlock V. BuUer, 21, 52, 72. 
 Morton v. Dean, 20, 23, 128, 152, 153, 
 154, 159. 
 V. Scull, 192. 
 V. Sloan, 248. 
 V. Tibbett, 160, 162. 
 V. Underwood, 237, 250. 
 V. Waring, 29. 
 V. Woods, 255. 
 Mosby V. Hunt, 248. 
 
 V. Leeds, 260, 264. 
 Moses V. Taylor, 112. 
 Moss, Appeal of, 252. 
 
 -u. Gallimore, 255. 
 Moston V. Scall, 192. 
 Mostyn v. West Mostyn Coal & Iron 
 
 Co., 50. 
 Motley V. Head, 32. 
 Mott V. Hicks, 22. 
 
 V. Mott, 109, 194. 
 V. Richtmeyer, 164. 
 V. Shreve, 245. 
 V. WalkJey, 239. 
 Mound City Ins. Co. v. Hamilton, 248. 
 Mount V. Brown, 195. 
 Mount Pleasant Bank v. Conger, 240. 
 Mountcastle v. Mills, 86. 
 ■u. Moore, 85. 
 
TABLE OF CASES. 
 
 Mouton V. Noble, 9. 
 Movan V. Hays, 45. 
 Moyce j». Newington, 192. 
 Miihlenbrinck v. Long Branch, 7. 
 Muldrow V. Muldrow, 189. 
 Mulford V. Beveridge, 25^8. 
 Mulks 7'. Allen, 37. 
 Mullins V. Aiken, 95. 
 MuUoy V. Egan, 103. 
 Mulvey v. Carpenter, 24S. 
 Mumford v. Armstrong, 3. 
 Munson v. Payne, 248. 
 Murdock's Case, 122. 
 Murphy V. Boese, 22. 
 
 V. Gay, 59, 117. 
 V. Teeter, 4. 
 Murray v. Brooks, 119. 
 V. Currie, 227. 
 V. Mann, 177, 204, 236. 
 V. Smith, 59, 117. 
 T'. Toland, 20S. 
 V. Vanderbilt, 176. 
 Musgrove v. Robinson, 142. 
 iVIusselman 1'. Eshleman, 4. 
 Mutual Life Ins. Co. v. Balch, 1S4. 
 
 V. Goddard, 247. 
 Myers v. Manny, 248. 
 
 I'. Mansfield, 252. 
 -u. Perigal, 149. 
 ■u, Raymond, 95, 248. 
 v. Sanders, 114. 
 V. Sari, 165. 
 ■V. Smith, 253. 
 V. Wliite, 255. 
 Mynn v. Joliffe, 27, 172. 
 
 Nagle ;'. Baylor, 124. 
 1/. rvlacey, 248. 
 Nargelt v. Nias, 272. 
 Nash ?'. Brown, 88. 
 V. Lucas, 264. 
 Natchez Ins. Co. v. Helm, 142. 
 National Bank v. Merchants' Bank, 23. 
 National Bank of Metropolis v. Sprague, 
 
 84, 85, 89, 112, 121, 126, 132. 
 National Ins. Co. ■;'. Loomis, 131, 140, 
 
 154, 196, 245. 
 National Life Ins. Co. v. Minch, 22. 
 Nawton v. Hickman, 227. 
 Naylor i'. Dennie, 188. 
 Navarro, Succession of, 229. 
 Neal V. Patten, 4. 
 
 V. Stone, 121. 
 Neda v. Fontenot, 4. 
 Neeld v. Duke of Beaufort, 34. 
 Negley v. Lindsay, 192. 
 Neilson v. Neilson, 252. 
 Neiman v. Early, 248. 
 Nellis V. Clark, 53. 
 Nelson v. Aldridge, 28, 234. 
 V, Brown, 121. 
 
 Nelson v. Carrington, 64, 195. 
 V. Cook, 211. 
 V. Cowing, 119. 
 V. Hayner, 239. 
 V. Iverson, 36. 
 V. McCrary, 250. 
 V. Stocker, 123. 
 Nelthorpe v. Pennyman, 125, 246. 
 Nene Valley Drainage Commissioners 
 
 V. Dunkley, 158. 
 Nesbitt V. Dallam, 252. 
 Nesham v. Selby, 151. 
 Nettleton v. Sikes, 27, 113. 
 Nevius V. Dunlap, 54. 
 New England Hospital v. Sohier, 69. 
 New England Ins. Co. v. DeWolf, 33. 
 New England Mortgage Security Co. v. 
 
 Smith, 249. 
 New Hamburg & Brazilian Ry. Co., Itt 
 
 re, 214, 216. 
 New Iberia v. Migues, 7. 
 New Jersey Sinking Fund Commission- 
 ers V. Peter, 245. 
 New York Bank v. Vanderhorst, 32. 
 Newall V. Hurlburt, 33. 
 Newby V. Painter, 61, 72. 
 Newell V. Horn, 53. 
 v. Smith, 29. 
 Newhall v. Pierce, 222. 
 ■u. Vargas, 1S8. 
 Newman v. Llook, 1 1 1 . 
 11. Jackson, 48. 
 V. Meek, 4, 121, 
 V. Sylvester, 33. 
 Newton v. Hunt, 4. 
 
 V. State Bank, 37, 250. 
 V, Swasey, 197. 
 Nichol V. Ridley, 143. 
 NichoU V. Chami)ers, 65. 
 Nichols V. Cooper, 64. 
 V. Disner, 250. 
 V. Dusenbury, 252. 
 V. Johnson, 150, 151, 153. 
 V. Mercier, 250. 
 V. Williams, 53. 
 Nicholson v. Rose, 81. 
 Nickley v. Thomas, 118. 
 Nicol V. Penning, 62. 
 Nicolai %>. Leyon, 260. 
 Nixon V. Bynum, 250. 
 
 7'. Freeman, 260. 
 Noakes v. Morey, 154, 164. 
 Noble V. Bosworth, 64. 
 V. Cromwell, 240. 
 7'. Edwardes, 103, 196. 
 V. Googins, 56, 64. 
 V. Ward, 164. 
 Noe V. Gibson, 268. 
 
 V. Purchapile, 250. 
 Norfolk, Duke of, v. Worthy, 50, 68, 
 107, 182. 
 
TABLE OF CASES. 
 
 XXXVH 
 
 Norman v. Phillips, 162. 
 Norris v. Blair, 152, 153. 
 
 V. Hero, 234. 
 North, Case of Lord, 37. 
 
 V. Forrest, 150. 
 North Baltimore Association v. Cald- 
 well, 4. 
 Northrop v. Cooper, 249. 
 Norton v. Beaver, 250. 
 
 V. Hathaway, 51, 108. 
 V. Webb, 146. 
 Nowille V. Coble, 237. 
 Nowlin V. Snow, 118. 
 Noyes v. Canfield, 165. 
 
 V. Loring, 33. 
 
 V. True, 250. 
 Nurse v. Lord Seymour, 81. 
 Nute V. Hamilton Ins. Co., 108. 
 Nuttall V. Staunton, 258, 263. 
 Nutting V. Dickinson, 93. 
 Nye V. Taggart, 197. 
 
 Oakden v. Pike, 98. 
 Oakes v. Turquand, 190. 
 Oakey v. Bend, 208. 
 V. "Wilcox, 8g. 
 Oakman v. Rogers, 150. 
 O'Bannon, In re, i. 
 Obert V. Hammel, 4, 239. 
 O'Brien v. Hilburn, 250. 
 O'Callaghan v. O'Callaghan, 249. 
 Ocean Towboat Co. v. The Ophelia, 1 74. 
 Ockenden v. Henly, 109, 164, 180, ig6, 
 
 200. 
 O'Dell V. Rogers, 5. 
 O'Donnell v. Eastman, 153. 
 
 V. Leman, 23. 
 
 V. Lindsay, 252. 
 
 V. Seaman, 160. 
 
 V. Seybert, 266. 
 O'Farrell v. Nance, 258. 
 Ogden V, Marchand, 22. 
 Ogg V. Leinart, 250. 
 Ogilvie V. Fojambe, 46, 54, 151. 
 O'Hara v. Booth, 237. 
 Ohio Life and Trust Co. v. Goodin, 248. 
 Okell V. Smith, 190. 
 Okill V. Whittaker, 64. 
 Olcott V. Frazier, 268. 
 O'Linda v. Lathrop, 82. 
 Olive V. Dougherty, 198. 
 Oliver V. Caton, 248. 
 V. Court, 4, 28. 
 V. Piatt, 239. 
 O'Neal V. Bacon, 58, 1 16. 
 V. Bannon, 193. 
 V. Cathran, 250, 
 Oneale v. Caldwell, 248. 
 Oneida Manufacturing Co. ». Lawrence, 
 
 58. 
 Onslow V. Fames, 60. 
 
 Opperman -j. Smith, 262. 
 
 Ord V. Noel, 86. 
 
 Organ v. Stewart, 164. 
 
 Ormsby v. Terry, 85, 240. 
 
 Orr V. Orr, 245, 
 
 Osborn v. Baxter, 4. 
 
 Osborne v. Harvey, 86, 88, 100. 
 
 V. Mobile, 7. 
 Osburn v. Curtis, 196. 
 Osgood J/. Blackmore, 251. 
 V. Lewis, 58, 116. 
 V. Nichols, 35. 
 Oskaloosa v. TuUis, 7. 
 Osman v. Traphagen, 241, 248. 
 Otis, Estate of, 248. 
 
 -'. Raymond, 61, 117. 
 Otts V. Alderson, 59, 116. 
 Oughton V. Seppings, 194. 
 Outcalt V. Disborough, 37. 
 Overbay v. Lighty, 195. 
 Overend v. Robinson, 250. 
 Oves V. Oglesby, 64. 
 Owen V. Boyle, 267. 
 
 ■u. Navasota, 250. 
 
 ■u. Owen, 248. 
 Owens V. Lewis, 148. 
 Owensboro Bank v. Western Bank, 22, 
 
 260. 
 Owings V. Hull, 22. 
 Owsley V. Smith, 240. 
 Oxley V. James, 254. 
 
 Packard v. Bird, 121. 
 V. Usher, 86. 
 Paddock v. Stowbridge, 53, 117. 
 Page, In re, 221. 
 
 V. Adam, 340. 
 
 V. Cowasjee Eduljee, 56,89, 128, 
 
 199, 200. 
 V. Hughes, 103. 
 Pairs V. Vickery, 239. 
 Palk V. Force, 9, 39. 
 Palmer v. Goren, 248. 
 V. Hatch, 119. 
 V. Temple, no, 171, 179. 
 Pankrey v. Mitchell, 89. 
 Paramore v. Greenslade, 103. 
 Pardridge v. La Pries, 34. 
 Parfitt V. Jepson, 90, 122, 138. 
 Parham v. Randolph, 48, 57, 107. 
 Paris Chocolate Co. v. Crystal Palace 
 
 Co., 93. 
 Parisen v. Parisen, 240. 
 Park V. Darling, 250. 
 
 V. Johnson, 85, 95, 197. 
 Parke v. Leewright, 104. 
 Parker v. Bodley, 152. 
 
 V. Farebrother, 36, 228. 
 V. Framingham, 82. 
 V. Leathers, 5. 
 V. Partlow, 29. 
 
XXXVIU 
 
 TABLE OF CASES. 
 
 Parker v. Pralt, 250. 
 
 V. Smith, 82. 
 
 V, Storts, 92. 
 
 I/. Vose, 126. 
 
 Parkhurst v. Cor,-, 242. 
 
 V. Van Cortlandt, 193, 197. 
 Parnther v. Gaitskell, 235. 
 Parratt v. Neligh, 242. 
 Parry v. Duncan, 262. 
 Parsons v. Clack, 142. 
 u. Gingell, 266. 
 V. AVebb, 172. 
 Parteriche v. Powlet, 89. 
 Pascoe ''. Pascoe, 254. 
 Pasley v. Freeman, 116, 193. 
 Paterson -'. Long, 77. 
 Patman v. Harland, 77. 
 Patrick v. Carr, 204. 
 V. Leach, 117. 
 :■. Milner, 103. 
 Patterson v. Lon, 345. 
 V. Martz, 53. 
 V. Preston, 140. 
 V. Reynolds, 241. 
 Pattison v. Josselyn, 202. 
 Patton V. Ash, 175. 
 
 V. McClure, 197. 
 V. Stewart, 252. 
 V. Thompson, 4. 
 Paulett V. Peabody, 76. 
 Pavisich v. Bean, 196. 
 Pawle V. Gunn, 149. 
 Payne v. Atterbury, 183. 
 V. Billingham, n6. 
 V. Cave, 30. 
 V. Graves, 193. 
 V. Lord Leconfield, 130. 
 Peacock v. Penson, 82. 
 Pearce v. Blackwell, 61, 117. 
 Pearl v. Harris, 108. 
 Pearsoll v. Chapin, 192. 
 Pearson v. Flanagan, 251. 
 V. Hudson, 251. 
 V. Moreland, 4. 
 V. Williams, 109. 
 Pease v. Coats, 62. 
 Peate v. Dicken, 170. 
 Peck V. Cavell, 251. 
 V. Gurney, 253. 
 V. Harriott, 24. 
 Peden v. Owens, 64. 
 Peers v. Lambert, 70. 
 Peirce v. Corf, 20, 29, 36, 127, 144, 151, 
 155, 159, l6o, 228. 
 V. Huddleston, 1 70. 
 Peisch V. Dickson, 165. 
 Pell V. Ball, 237. 
 Pember v. Mathers, 46, 54. 
 Pemberton v. Barnes, 10. 
 v. McRae, 49. 
 Penn v. Craig, 85, 252. 
 
 Penn I/. ToUeson, 121, 122. 
 Penniman v. Hartshorn, 154. 
 Pennock's Appeal, 132. 
 People V. Baker, 174. 
 
 V. Bond Street Savings Bank, 
 248. 
 
 V. Circuit Judge, 248. 
 
 V. Hays, 196. 
 
 V. Howell, 175. 
 
 V. Waring, 445. 
 
 V. White, 143. 
 Perdew v. Davis, 250. 
 Peries v. Aycinena, 32. 
 Perkins v. Gridley, 248. 
 
 ■u. Potts, 39. 
 
 V. Proud, 1 16. 
 
 v. Webster, 64. 
 
 V. Winter, 248. 
 Perrin v. Keithley, 211. 
 Perry v. Duncan, 262. 
 V. Mulligan, 22. 
 ■V. Wheeler, 193. 
 Peru Iron Company, Ex parte, 250. 
 Peter v. Compton, 145, 148. 
 Peterman v. Turner, 240. 
 Peters v. Newkirk, 2^8, 268. 
 Peterson v. Chistensen, 29. 
 Petillo, Ex parte, 196. 
 Peto V. Blades, 35, 193. 
 Pettit V. Mitchell, 60. 
 Pew 7'. Livodais, 45. 
 Phaelon v. McBride, 269. 
 Phelps V. Conover, 116, 251. 
 V. Sheldon, 151. 
 V. Wilson, 64. 
 Phillimore v. Barry, 153, 159. 
 Phillips V. Behn, 25. 
 
 V. Bistolli, 160, 163. 
 
 V. Caldcleugh, 70. 
 
 V. Coffee, 250. 
 
 V. Dawley, 249. 
 
 V. Duke of Buckingham, 207. 
 
 V. Hanson, 271. 
 
 V. Higgins, 82. 
 
 V. Smith, 67. 
 
 V. Stewart, 250. 
 
 V. Terrill, 4. 
 
 V. Thompson, 198. 
 Philpotts V. Evans, 201. 
 Phippen v. Stickney, 91, 121, 134. 
 Phoenix Bessemer Steel Co., In re, 189. 
 Phyfe V. Warden, 197. 
 Piatt V. Oliver, 121. 
 Pickard v. Sears, 21. 
 Pickering v. Busk, 21. 
 
 V. Dowson, 60. 
 V. Driggers, 250. 
 V. Pickering, 103. 
 Pickersgill v. Brown, 246. 
 Pidgeon v. Burslem, 17. 
 Piel V. Brayer, 37, 250. 
 
TABLE OF CASES. 
 
 XXXIX 
 
 Pier V. Storm, 247. 
 Pierce v. Benjamin, 29. 
 ■u. Kneeland, 239. 
 V. Nichols, 94. 
 Piggott V. Birtles, 71. 
 Pigott and Gt. West. Ry. Co., In re, 196. 
 Pike V. Balch, 23, 121, 144. 
 V. Fay, 46. 
 
 V. Wilson, 21, 23, 24. 
 Pilkington v. Hastings, 275. 
 Pinckney v. Hagadorn, 27, 150, 172. 
 Pinner v. Arnold, 149. 
 Pitcher v. Hennessy, 45. 
 Pitchers v. Edney, 217. 
 Pitt V. Petway, 4. 
 V. Shew, 279. 
 V. Smith, 124. 
 v. Yalden, 24. 
 Pitts V. Beckett, 154. 
 Pittsburg R.R. Co. v. Gazzam, 22. 
 Planters' Bank v. First Nat'l Bank, 29. 
 
 V. Fowlkes, 248. 
 Plaquemine v. Roth, 7. 
 Plevins v. Downing, 166, 194. 
 Plume V. Small, 106. 
 Pole V. Leask, 21, 27. 
 Polhemus v. Heiman, 58, 116. 
 
 V. Trainer, 255. 
 Pollard V. King, 48. 
 Poole, Case of, 268. 
 
 V. Adams, 1 85. 
 V. Hill, 103, 193. 
 Poor V. Boyce, 248. 
 Pope V. Biggs, 255. 
 
 V. Burrage, 91, 171. 
 V. Chafee, 155. 
 V. Davenport, 115. 
 V. Frazee, 248. 
 V. Garland, 77, 80, 88. 
 Poppleton V. Buchanan, 61. 
 Poree v. Bonneval, 29, 114. 
 Port V. Williams, 61, 117. 
 Portman v. Mill, 64, 66. 
 Postman v. Harrell, 263. 
 Post V. Leet, 85, 250. 
 V. Marsh, 199. 
 V. Williams, 117. 
 Pott V. Flather, 201. 
 Potter V. Duffield, 150. 
 V. Hall, 252. 
 V. Smith, 4, 239. 
 Poulton V. Lattimore, 190. 
 Pounsett V. Fuller, 109. 
 Pow V. Davis, 33. 
 Powell V. Clark, 64. 
 V. Dubble, 62. 
 I/. Edmunds, 45, 170. 
 V. Governor, 251. 
 D. Jessop, 149. 
 V. Newburgh, 35, 211. 
 V. Powell, 98, 182, 202. 
 
 Powell V. Sadler, 36, 232. 
 Power V. Barham, 58, 59. 
 
 V. Kane, 224. 
 Pownall V. Blair, 37, 234. 
 Prather v. Hill, 252. 
 
 V. Pritchard, 170. 
 Pratt V. Beaupre, 209. 
 
 V. Law, 103. 
 
 V. Longworth, 4. 
 
 V. Thornton, 4. 
 Pray v. Mitchell, 150. 
 Preece v. Corrie, 254. 
 Prentice v. Achorn, 124. 
 Prentiss v. Russ, 117. 
 Prescott V. Black, 190. 
 
 V. De Forest, 254. 
 V. Wright, 190. 
 Preston v. Fryer, 203. 
 Prevost V. Gratz, 177, 239. 
 Price V. Durin, 154, 158. 
 
 V. Ley, 46. 
 
 V. Macaulay, 52, 71, 75. 
 
 V. Nesbitt, 4. 
 
 V. North, 66. 
 
 V. Winter, 5. 
 Prickett v. Badger, 226. 
 Pridgen v. Adkins, 250. 
 Prince v. Clarke, 34. 
 Prindle v. Beveridge, 4. 
 Pringle v. Samuel, 51, 64, 108. 
 Pritchard v. Askew, 248. 
 Propert v. Parker, 153. 
 Prothro v. Smith, 85, 95. 
 Public School Trustees v. New Jersey 
 
 R.R. Co., 239. 
 Puckett V. Jenkins, 237. 
 
 V. McDonald, 195. 
 Pugh V. Chesseldine, 20, 23. 
 
 V. Good, 197. 
 PuUen V. Bell, 93. 
 Pulsford V. Richards, 53, 117, 190. 
 Purcell V. McCleary, 94. 
 Pursell V. Porter, 195. 
 Putnam v. Home Ins. Co., 34. 
 
 V. Westcott, 71, 72. 
 Putney v. Day, 148. 
 Pyle V. Pennock, 64. 
 
 QuAKLES V. Lacey, 86, 239. 
 Queen of Spain v. Parr, 226. 
 Quesnell v. Woodlief, 64. 
 Quincey, Ex parte, 92. 
 Quintard v. Bacon, 1 63. 
 
 Raffles v. Wichelhaus, 166. 
 Ragan v. Gaither, 95. 
 Ragland v. Justices, 255. 
 Rainy v. Vernon, 221, 225. 
 Ramsay v. Brailsford, 193. 
 
 V. Gardner, 35. 
 Ramsbottom v. Gosden, 46. 
 
xl 
 
 TABLE OF CASES. 
 
 Ramsbottom v. Mortley, 167. 
 
 V. Tunbridge, 167. 
 Ramsden v. Hurst, 75. 
 Rand V. Vaughan, 263. 
 Randall v. Everest, no. 
 I'. Hall, 82. 
 V. Kehlor, 119. 
 V. Newson, iiS. 
 V. Raper, 206. 
 V. Swan, 86. 
 V. Thornton, 58, 1 16. 
 Randell -'. Trimen, 33. 
 Randolph, Appeal of, 85. 
 
 V. Thomas, 250. 
 Rankin v. Matthews, 45, 46, 89. 
 Rappleye v. Adee, 145. 
 Rasdall V. Rasdall, 197. 
 Rathbone v. Clarke, 242. 
 Rawlins -'. Wickham, 117, 190. 
 Ray ''. Womble, 250. 
 Raymond v. Holborn, 252. 
 
 V. Pauli, 250. 
 Rayner v. Linthorn, 26. 
 
 V. Preston, 105, 185. 
 Raynor v. Selmes, 250. 
 Rea V. Burt, 266. 
 Read v. Lambert, 282. 
 Reamer, Appeal of, 250. 
 
 c: Judah, 248. 
 Reardon v. Searcey, 250. 
 Rector v. Ilartt, 252. 
 Redd V. Jones, 5. 
 Rede v. Farr, 340. 
 V. Oakes, 86. 
 Redgrave v. Hurd, 55. 
 Redmond v. Smith, 9. 
 Redus V. Hayden, 248. 
 Reed v. Austin, 250. 
 ■u. Carter, 252. 
 ■u. Curry, 170. 
 V. Darrow, 263. 
 J'. Diven, 37, 252. 
 V. Hastings, 58, 59, 116. 
 V. Hornback, 57, 108. 
 c. Latham, 30. 
 f. Lukens, 105, 184, 185. 
 V. Noe, 85, 95. 
 Reese -j. Dobbins, 195. 
 Reese River Mining Co. v. Smith, 117. 
 Reeside v. Peter, 48. 
 Reeves v. Barraud, 217. 
 t'. Dickey, 94. 
 V. McKenzie, 266. 
 Reffell V. Reffell, 164. 
 Regent's Canal Co. v. Ware, 104. 
 Reid V. Draper, 207. 
 I; Humber, 234. 
 V. Largent, 250. 
 Remick v. Butterfield, 4, 239. 
 
 V. Sandford, 161. 
 Renaud v. Peck, 4. 
 
 Renew v. Butler, 4. 
 Renfrew v. Pearce, 248. 
 Requa V. Rea, 25. 
 Reuss V. Picksley, 153. 
 Rex V. Beadle, 19. 
 
 ■V. Commissioners of Excise, 19. 
 V. Hodgkinson, 16. 
 V. Junes, 5. 
 V. McGrath, 3, 120. 
 V. Marsh, 133, 138, 140. 
 V. Taylor, 9, 119. 
 V. Turner, 16, 19. 
 Reynolds v. Boston & Maine R.R. Co., 
 188. 
 V. Dechaums, 91, 134. 
 Reynolds v. Ferree, 22. 
 V. Hoxsie, 250. 
 V. Shuler, 269. 
 V. Vance, 64, 71, 72. 
 V. Wilson, 85. 
 Rhodes v. Ibbetson, 44, 96. 
 
 V. Robinson, 29. 
 Rice I'. Cleghorn, 4. 
 Rich V, State Bank, 22. 
 
 • V. WooUey, 263. 
 Richards v. Holmes, Ii6, 247. 
 Richardson v. Chasen, 202. 
 
 -u. Comstock, 164. 
 7/. Englesby, 250. 
 -u. Jones, 4, 248. 
 V. Silvester, 26,49, ^^^j '26. 
 ■u. Smith, 93. 
 V. Thompson, 46. 
 V. Williamson, 33. 
 Richmond v. Gray, 84, 94, 95, 103, 125. 
 Ricks V. Battle, 194. 
 
 I/. Dillahunty, 58, 116. 
 Riddle v. Bush, 250. 
 V. Roll, 4. 
 
 t'. Welden, 266, 270. 
 Ridgway t'. Bowman, 45. 
 ■i'. Gray, 73. 
 -'. Ingram, 150, 159. 
 Ridley v. JIcNaity, 197. 
 Riggs V. Magruder, 1 50. 
 V. Pursell, 85, 196. 
 Righter v. Roller, 57. 
 Rigney v. Coles, 85, 95. 
 
 V. Small, 250. 
 Rigs V. Cage, 32. 
 Riley v. Farnsworth, 153. 
 
 V. McCord, 237. 
 Ringer -v. Thompson, 102. 
 Ringo V. Binns, 239. 
 Rippingall v. Lloyd, 340. 
 Rishton v. Whatmore, 127, 159. 
 Risney v. Selby, 74. 
 Rival V. Gallagher, 248. 
 Rivers v. Durr, 237. 
 Robb V. Mann, 105, 1S4. 
 Robbins v. Bates, 4. 
 
TABLE OF CASES. 
 
 xli 
 
 Roberts v. Bozon, 349. 
 z/. Clelland, 245. 
 V. Jackson, 220, 223. 
 V. Jenkins, 60. 
 V. Morgan, 60, 1 1 7. 
 V. Moseley, 4. 
 V. Roberts, 4, 248, 250. 
 u. Rowlands, 177. 
 ■V, Stowers, 250. 
 V. Tucker, 150. 
 Robertson v. Robertson, 198, 199. 
 Robinson, Appeal of, 248. 
 V. Clark, 29. 
 V. Cooper, 29, 
 V. Dryborough, l56. 
 V. Fiske, 165. 
 V. Garth, 154, 157, 195. 
 ■u. Glancey, 237. 
 ■u. Green, 9, 14, 221. 
 •u. Harvey, 116. 
 V. Hofman, 256, 259. 
 V. Musgrove, 51, 62. 
 V. N.Y. Ins. Co., 221. 
 V. Rutter, 25, 211. 
 ■V. Trofitter, 183. 
 V. Waddington, 279. 
 V. Wall, 139. 
 Roden v. Eyton, 279. 
 Rodgers v. Bass, 24. 
 
 ■u. Parker, 82. 
 Rodick V. Gandell, 235. 
 Rodman v. Zilley, 45. 
 Rodwell V. Phillips, 147. 
 Roe V. Ross, 250. 
 Roiifey v. Smallcross, 107. 
 Roger V. Ochiltree, 241. 
 Rogers, In re, i. 
 
 V. Ackerman, 59, 117. 
 V. Atkinson, 166. 
 V, Boehm, 232. 
 V. Colt, 164. 
 V. Holyoke, 238. 
 V. Horn, 240. 
 V. Humphreys, 255. 
 V. Kneeland, 35, 259. 
 ■u. Lockett, 239. 
 V. McLean, 1 82, 240. 
 V. Marshall, 250. 
 u. Saunders, 103. 
 V. Thomas, 1 88. 
 Roland v. Gundy, 4. 
 Rondabush v. Miller, 248. 
 Root V. Blake, 189. 
 Roots V. Lord Dormer, 148, 168. 
 Roper V. Johnson, 203. 
 
 V. Sangamon Lodge, 117. 
 Ropps V. Barker, 165. 
 Rose V. Watson, 182. 
 Roseman v. Canovan, 61, 117. 
 Rosenberger's Appeal, 4. 
 Rosevear China Clay Co., Ex parte, 188. 
 
 Rosevelt ■v. Dale, 48. 
 
 V. Fulton, 53. 
 Rossiter v. Miller, 150, 151, 158. 
 Routledge v. Grant, 30. 
 Rowan v. Refeld, n i . 
 Rowe V. Cockrell, 121. 
 
 V. May, 182. 
 Rowley v. Brown, 86. 
 
 0. Kemp, 195. 
 Rucker v. Cammeyer, 21, 154. 
 
 ■V. Donovan, 188. 
 Ruckle V, Barbour, 3. 
 Rucks V. Barbour, 143. 
 Ruckman v. Bergholz, 126, 221. 
 Rugg V. Minett, 187. 
 Ruggles V. Centerville Bank, 92. 
 Ruiz V. Norton, 164. 
 Runnels v. Jackson, 103. 
 Runyon v. Newark India Rubber Co., 
 
 85. 
 Russell V. Doty, 258, 268. 
 
 V. Gibbs, 195. 
 
 V. Hankey, 24, 231. 
 
 V. Harford, 79. 
 
 V. Houston, 66. 
 
 V. Miner, 219, 225. 
 
 V. Palmer, 24. 
 
 ■u. Richards, 116, 247. 
 
 ■u. Stinson, 250. 
 
 V. Werntz, 165. 
 Rutherford v. Green, 189. 
 
 V. Ruff, 124. 
 Ryall V. RoUe, 232. 
 Ryan v. Carr, 250. 
 
 V. Shilcock, 265. 
 Ryder v. Innerarity, 237. 
 Ryerson v. Boorman, 241. 
 
 Sabin v. Austin, 250. 
 
 Sadler v. Robinson, 192. 
 
 Safford v. McDonough, 162. 
 
 Saint V. Pilley, 187. 
 
 Saint Ativans, Bishop of, v. Battersby, 62. 
 
 Duke of, V. Shore, 66. 
 Saint Louis Church v. Bonneval, 9. 
 
 Packet Co. v. Parker, 34. 
 Saint Paul Division v. Brown, 104. 
 Saladin v. Mitchell, 29, 208. 
 Sale V. Danagh, 164. 
 V. Lambert, 151. 
 Salmon Falls Manufacturing Co. v. 
 
 Goddard, 150, 153. 
 Salomans v. Pender, 28, 227. 
 Salter v. Dunn, 240. 
 
 V. Woollams, 113, 162. 
 Saltmarsh v. Beene, 4, 239. 
 
 V. Smith, 32. 
 Sampson v. Barnard, 1 70. 
 
 V. Somerset Iron Works, 228. 
 San Francisco v. Pixley, 251. 
 San Jose v. San Jose R.R. Co., 7. 
 
xlii 
 
 TABLE OF CASES. 
 
 Sanborn v. Chamberlin, 26, 154, 195. 
 V. Flagler, 153. 
 V. Sanborn, 154, 188. 
 Sanderlin v. Roman Catholic Church, 
 
 144. 
 Sanders v. Norton, 37. 
 Sanderson v. Walker, 4, 182. 
 Sandford v. Handy, iig. 
 Sandilands v. Marsh, 119. 
 Sanford v. Durfee, 250. 
 Sari V. Bourdillon, 152, 165. 
 Sartup V. Cortazzi, 204, 
 Satcher v. Satcher, 248. 
 Satterfield -v. Smith, 89. 
 Sauer v. Steinbauer, 3. 
 Saunders v. Bell, 200. 
 
 ;'. Hatlerman, 58. 
 V. Wakefield, 150. 
 Saunderson v. Jackson, 153. 
 Savage !'. Birckhead, 260. 
 
 V. Brocksopp, 52. 
 
 V. Stevens, 118. 
 Saveland v. Green, 33, 211. 
 Savery v. Spence, 199. 
 Sawyer v. Cutting, 124. 
 
 -'. Hovey, 54. 
 
 V. Mayhew, 228. 
 Sayers v. London iV Birmingham Flint, 
 
 &c., Co., 118. 
 Sayles -j. Davis, 170. 
 Scanlan z'. Geddes, 151. 
 Scarfe i'. Morgan, 9, 229. 
 Schaefer v. C)'Brien, 196. 
 Schafer v. Farmers' & Mechanics' Bank, 
 
 159- 
 Schell V. Stevens, 27, 29. 
 Schenck Z'. Ellingwood, 195. 
 Schermerhorn "'. Merrill, 250. 
 
 ZK Xiblo, 125. 
 Schettiger i: Hopple, 54. 
 Schmalig v. Thomlinson, 29. 
 Schmalz v. Avery, 208. 
 Schmidt z'. Mackey, 48. 
 Schneider v. Heath, 50. 57, 60. 
 
 T. Xorris, 153. 
 Scholefield z: Robb, 60. 
 
 I'. Templer, 191. 
 School District v. ^-Etna Ins. Co., 22. 
 Schreiber z'. Creed, 81. 
 Schroeppel v. Hopper, 192. 
 Schuyler v. Geddes, 258. 
 f. Leggett, 258. 
 v. Russ, 55, 108. 
 Scorrell z\ Boxall, 14S. 
 Scott ;■. Buckley, 264. 
 z: Burch, 4. 
 z\ Cousins, 14, 17. 
 z: Eastern Counties Ry. Co., 161. 
 -■. England, 1S6. 
 V. Field, 103. 
 Z-. F'reeland, 4. 
 
 Scott V. Hanson, 56, 58. 
 
 V. Jackman, 107. 
 
 V. Lewis, 216. 
 
 V. Mann, 28, 126. 
 
 V. North, 17. 
 
 V. Rogers, 35. 
 
 V. Surman, 232. 
 Scruggs V. Gibson, 258. 
 Seaborn v. Sutherland, 192. 
 Seaforth, Lord, Ex parte, lot). 
 Seago V. Martin, 33. 
 Seaman v. Hogeboom, 165. 
 V. Riggins, 250. 
 V. Vawdry, 75. 
 Sears v. Boston, 199. 
 
 V. Hyer, 193. 
 Sebastian v. Johnson, 29. 
 Sebring v. Merserea.u, 85, 95, 240. 
 Secrist v. Twilty, 143. 
 Seeley v. Howard, 104. 
 Seesel v. Ewan, 126. 
 Seguin v. Maverick, 250. 
 Seigworth v. Leffel, 109. 
 Seiple V. Irwin, 25, 26. 
 Seitzinger v. Steinberger, 3. 
 Seller v. Lingerman, 251. 
 Sellick v. Trevor, 95, 96. 
 Semayne's Case, 264. 
 Seton V. Slade, 28, 103, 153. 
 Sewall V. Costigan, 237. 
 
 V. Jones, II. 
 Sewell V. Taylor, 112. 
 Seyfert v. Bean, 252. 
 Seymour z'. Delancey, 53, 85, 94, 95. 
 
 V. Osborne, 165. 
 Shackleford v. Hadley, 190. 
 Shackleton v. Sutcliffe, 75. 
 Shakeley v. Taylor, 5. 
 Shakespeare -'. Delaney, 250. 
 Shands v. Triplet, 82. 
 Shardlow v. Cotterell, 151, 158, 197. 
 Sharkey z\ Bankston, 248. 
 Sharman v. Brandt, 26, 157. 
 Sharp V. Long, 142. 
 
 :'. Wright, 121. 
 Sharpe ;'. Redman, 215. 
 
 -'. Roe, 250. 
 Sharpley v. Louth and East Coast Ry 
 
 Co., 192. 
 Shaubhut v. Milton, 56. 
 Shaw V. Fisher, 201. 
 
 T . Holland, 204. 
 
 V. Simpson, 140. 
 
 V. Swift, 4. 
 Shay v. Pettes, 54. 
 Sheffield v. Page, 166. 
 Sheffield Nickel Co. v. Unwin, 192. 
 Sheid ;■. Stamps, 150, 153. 
 Sheldon v. Benham, 165. 
 ■u. Capron, 53. 
 V. Saenz, 251. 
 
TABLE OF CASES. 
 
 xliii 
 
 Sheldon v. Sheldon, 4. 
 V. Soper, III. 
 Shelly V. Nash, 4. 
 Shelton v. Livius, 45, 56. 
 
 V. Merchants' Despatch Co., 23. 
 V. Pendleton, 124. 
 V. Tiffin, 237. 
 Shepherd v. Burkhalter, 86. 
 V. Kain, 59, 60, 86. 
 ■V. Keatley, 95. 
 V. Mclntyre, 203. 
 Sherburne v. Shaw, 153. 
 Sherman v. Dutch, 260. 
 Sherry v. Nick of the Woods, 241. 
 V. Oke, 202. 
 ■V. Picken, 147. 
 Sherwin v. Shakspear, 105. 
 Sherwood v. Phillips, 275. 
 
 V. Robins, 72, 107. 
 V. Salmon, 48. 
 V. Saxton, 29. 
 Shield V. Batts, 49. 
 Shields V. Allen, 95, 96. 
 
 V. Harrison, 49, 89. 
 ■V. Miller, 250. 
 ■V. Thompson, 56. 
 Shindler v. Houston, 163. 
 Shine v. Redwine, 4. 
 Shinn v. Roberts, 25. 
 Shipherd v. Field, 260. 
 Shipp V. Wheeless, 192. 
 Shirley v. Shirley, 183, 193. 
 
 V. Taylor, 250. 
 Shoenfeld v. Fleisher, 231. 
 Short V. Millard, 222. 
 
 V. Porter, 203. 
 Shotwell V. Sedam, 146. 
 Shreck v. Pierce, 70. 
 Shuman's Appeal, 4. 
 Shute V. Taylor, 110. 
 Sidebottom v. Barrington, 93. 
 Sides V. Hilleary, 118. 
 Sidney v. Ranger, 239, 249. 
 Sievewright v. Archibald, 154. 
 Silver v, Campbell, 195. 
 Simmons v. Swift, 1 86. 
 
 V. Vandegrift, 250. 
 V. Wood, 248. 
 Simms v. Marryat, 193. 
 Simon v. Goldenburg, 270. 
 
 V. Motivos (Metivier), 20, 143. • 
 V. Simon, 249. 
 Simonds v. Heard, 209. 
 Simons v. Patchett, 33. 
 Simonton v. Minneapolis Bank, 31. 
 Simpson v. Hartopp, 265, 266, 268, 269. 
 V. Lamb, 226. 
 V. Margitson, 165, 224. 
 V. Pettus, 155. 
 V. Potts, 60. 
 Simrall v. Jacob, 142. 
 
 Sims V. Boaz, 193. 
 Sinclair v. Gallaud, 221. 
 
 V. Williams, 237. 
 Singer Manufacturing Co. v. Chalmers, 
 
 29. 
 Singleton v. Herriolt, 84. 
 Singstack v. Harding, 4, 154. 
 Sinnett v. Cralle, 250, 251. 
 Sites V. Keller, 198. 
 Sittig V. Morgan, 22. 
 Six Carpenters' Case, 275. 
 Sked V. Sedgley, 248. 
 Skelton v. Cole, 150. 
 Skillman v. Skillman, 4. 
 Skinner v. Beatty, 248. 
 V. Gunn, 119. 
 V. Skinner, ill. 
 V. Warren, 86. 
 Skull V. Gemister, 88. 
 Slade V. Van Vechten, J. 
 Slater v. Maxwell, 121. 
 Sledge V. Scott, 117. 
 Sleeper v. Parrish, 264. 
 Slicer v. Pittsburg Bank, 203. 
 Slingluff z/. Eckel, 121. 
 Slocum V. Clark, 254. 
 
 V. Seymour, 148. 
 Slothower v. Gordon, 64, 66. 
 Small V. Boudinot, 132. 
 V. Hodgen, 250. 
 Smart v. Harding, 146. 
 
 V. Hyde, 108. 
 
 ■CI. Sandars, 30. 
 Smiley v. Mayor, 22. 
 Smith, Case of, 191. 
 
 V. Ambler, 253. 
 
 V. Arnold, 126, 128, 143,154,157. 
 
 V. Ashforth, 274. 
 
 V. Babcock, 47, 53, 190. 
 
 V. Block, 250. 
 
 V. Bobb, 256. 
 
 V. Boston,Concord, and Montreal 
 R.R. Co., 108. 
 
 V. Bouck, 150. 
 
 V. Brittain, 85. 
 
 V. Brown, 211. 
 
 V. Bryon, 148. 
 
 V. Burnes, 237. 
 
 V, Burnham, 146. 
 
 V. Cator, 169. 
 
 V. Chew, 4. 
 
 V. Clarke, 133. 
 
 V. Clayton, 165. 
 
 V. Colvin, 250. 
 
 V. Cranberry, 4. 
 
 V. Crews, 233. 
 
 V. Day, 254. 
 
 V. Dow, 251, 252. 
 
 ■u. Drake, 4. 
 
 V. Duncan, 250. 
 
 V. East India Co., 21. 
 
xliv 
 
 TABLE OF CASES. 
 
 Sm^th V. Ellis, 44. 
 
 V. Evans, 64. 
 
 V. Ferrand, 174. 
 
 V. Fly, 64. 
 
 V. Frost, 4. 
 
 V. Goodwin, 275. 
 
 V. Green, 206. 
 
 V. Greenlee, 121, 131. 
 
 V, Hudson, 126, 160, 162. 
 
 V. Hughes, 61, 117. 
 
 V. Isaac, 4. 
 
 V. Jackson, 182. 
 
 V. Jones, 127, 152. 
 
 V. Justice, 59. 
 
 V. Kinney, 195. 
 
 V. Lascelles, 36. 
 
 V, Lewis, 103, 193. 
 
 V. Lindo, 9, 1 7. 
 
 V. McGovvan, 250. 
 
 V. Mawhood, 9. 
 
 V. Milliken, i6i, 162. 
 
 V. Moore, 243. 
 
 V. Morgan, 240. 
 
 V. Peters, 93. 
 
 V. Pope, 29. 
 
 V. Randall, 250, 252. 
 
 V. Rice, 29. 
 
 V. Richards, 47, 61, 117. 
 
 V. Robinson, 76, 95. 
 
 V. Shepard, 253. 
 
 V. Short, 170. 
 
 u. Sleap, 176. 
 
 V. Smith, 68, 109, 197, 198. 
 
 V. Surman, 146, 153. 
 
 V. Taylor, 255. 
 
 ■V. Townshend, 239. 
 
 V. Turnley, 252, 258. 
 
 ■u. Vreeland, 25 1. 
 
 V. Watts, 95. 
 
 ■u. Webster, 156. 
 Smoot V. Rea, 104. 
 Smout V. Ilberry, 32. 
 SmuU V. Jones, 121. 
 Smyth V. Ripley, 170. 
 Snedaker v. Moore, 54, 55. 
 Sneezum, In re, 189. 
 Snelling v. Thomas, 46, 75. 
 Snow V. Grace, 22. 
 Snowball, Ex parte, 124. 
 Snydam v. Clark, 155. 
 Snyder v. Griswold, 192. 
 Soames v. Spencer, 22. 
 Sohier v. Williams, 85, 95. 
 Soles V. Hickman, 152. 
 Solinger v. Jewett, 54, 55, 64. 
 Solly V. Rathbone, 29. 
 Solomon V. Peters, 37. 
 Somerby v. Buntin, 150. 
 Somers v, Richard, 58. 
 Soper V. Stevens, 202. 
 Souders v. Vansickle, 252, 254. 
 
 Soule V. Heerman, 71, 72. 
 
 South V. Finch, 169. 
 
 South Fork Canal Co. v. Gordon, 250. 
 
 Southby V. Hutt, 87, 95, 99. 
 
 Southern Bank v. Humphreys, 237, 248. 
 
 Southern Express Co. v. Palmer, 33. 
 
 Southgate v. Atlantic and Pacific R.R. 
 
 Co., 22. 
 Southgate v. Bohn, 169. 
 Southwell V. Bowditch, 208. 
 Sowards v, Pritchett, 248. 
 Sowers v. Vie, 2ii. 
 Sowle V. Champion, 249. 
 Sowles V. Harvey, 237. 
 Spain, Queen of, v. Parr, 226. 
 Spang V, Scheider, 48. 
 Sparkle, The, 142, 190. 
 Sparling v. Marks, 58, 116. 
 
 V. Todd, 2. 
 Speakman v. Forepaugh, 85, 95. 
 Spedding v. Nevell, 33. 
 Spence v. Armour, 248. 
 Spencer v. Burton, 258. 
 
 V, Carter, 41. 
 
 V. Champion, 121. 
 
 V. Hale, 163. 
 
 V. Harding, 27. 
 
 V. McGowen, 266, 268. 
 
 V. Pearce, 144. 
 Spicer v. Cooper, 165. 
 Spindler v. Atkinson, 4. 
 Spittle V. Lavender, 22, 208. 
 Spooner v. Holmes, 36. 
 
 V. Thompson, 22. 
 Sprague v. Blake, 161. 
 Spratt V. Jeffery, 95. 
 Spray v. Rodman, 248. 
 Spring V. Kane, 248. 
 
 ■u. Sandford, 240. 
 Springer v. Berry, 195. 
 Springs V. Harven, 203. 
 Spurr V. Benedict, 48, 52, 54, 55. 
 Spurrier v. Elderton, 177. 
 Squier v. Campbell, 166. 
 Squire v. Campbell, 81. 
 Stackberger v. Nosteller, 146. 
 Stafford V. Clark, 39. 
 
 V. Lick, 153. 
 Stahl V. Charles, 25, 26. 
 Staines v. Morris, 342. 
 
 'o. Shore, 132. 
 Standifer v. Davis, 104. 
 Stanton v. Bell, 35. 
 
 V. Eagle, 1 88. 
 
 V. Green, 188. 
 
 V. Tattershall, 62, 69, 88. 
 Stapleton, Ex parte, 201. 
 Stapp V. Toler, 29. 
 Stark V. Henderson, 190. 
 State V. Armfield, 265.' 
 V. Belt, 211. 
 
TABLE OF CASES. 
 
 xlv 
 
 State V. Byrd, 204. 
 
 V. Delafjeld, 175. 
 V. Elliott, 64, 93. 
 V. lioboken, 7. 
 •V. Kidder, 44. 
 V. Laval, 255. 
 V. Lawson, 195. 
 V. Leach, 252. 
 V. Licking County, 84. 
 ■v. Lines, 26. 
 V. Poulterer, 5, 9. 
 w. Salyers, 250. 
 V. Smith, 22. 
 c Taylor, 170. 
 V. Thackam, 265. 
 V. Yancey, 252. 
 State Bank, Ex parte, 3. 
 %i. Green, 192. 
 V. Macy, 5. 
 Stead V. Course, 85, 241. 
 V. Gascoigne, 251. 
 Stebbins v. Eddy, 64. 
 Steedman v. Weeks, 237. 
 Steele v. EUmaker, 25, 91, 134. 
 Steen v. Clayton, 86. 
 Steere v. Steere, 45. 
 Stehman v. CruU, 250. 
 Stenton v. Jerome, 282. 
 Stephen v. Beall, 5. 
 Stephens, Ex parte, 399. 
 v. Badcocli, 233. 
 V. Magruder, 195, 250. 
 V. Qrman, 61, 117. 
 V. Wilkinson, 199, 203. 
 Stephenson v. January, 48, 56. 
 Sterling v. Baldwin, 148. 
 Stetson V. O'SuUivan, 21. 
 Stevens v. Adamson, 51, 78. 
 V. Cooper, 45. 
 V. Fuller, 53, 117. 
 V. Giddings, 65. 
 V. Legh, 177, 204, 236. 
 V. Palmer, 4. 
 Stevenson v. Blaclc, 86. 
 Stewart v. AUiston, 61. 
 V. Andrews, 52. 
 V. Cauty, 201. 
 V. Croes, 250. 
 V. Garvin, 29, 154, 245. 
 V. Glenn, 229. 
 v. Houston, 250. 
 V. Kahle, 221, 225. 
 V. La Coume, 252. 
 V. Mather, 126, 226. 
 V. Nelson, 121. 
 V. Rutherford, 29. 
 V. Woodford, 172. 
 Stiles V. Burch,'4. 
 Stimson v. Mead, 248. 
 Stockbridge Iron Co. v. Hudson River 
 Co., 54. 
 
 Stockdale v. Yongue, 250. 
 Stocker v. Partridge, 159. 
 Stocking V. Sage, 35. 
 Stockton V. Downe, 24S. 
 Stoffel V. Schvoeder, 86. 
 Stone V. Browning, 161, 164. 
 
 V. Clark, 165. 
 
 V. Denny, 53, 59. 
 
 V. Hubbard, 165. 
 
 V. Pointer, 29. 
 
 V. State, 29, 114. 
 Stoney v. Shultz, 29. 
 Storm V. Smith, 194, 250. 
 Story V. Odin, 76. 
 Stover V. Boswell, 252. 
 Stow V. Russell, 103. 
 Stowell V. Eldred, 207. 
 Stranks v. St. John, 96. 
 Stravvbridge %'. Clark, 36. 
 Street v. Blay, 204, 206. 
 Strong V. Catton, 249. 
 Stronge v. Hawkes, 104. 
 Stroud 7'. Pierce, 59, 117. 
 Stubbs V. Lund, 189. 
 Stucley V. Bailey, 117. 
 Stall V. Hurrt, 64. 
 Stump V. Martin, 249. 
 Sturdy v. Jacoway, 248. 
 Sturgis V. Frost, 274. 
 Sturtevant v. Jaques, 85, 95. 
 V. Robinson, 22. 
 Sullivan v. Hearnden, 37. 
 Sutton V. Sears, 146. 
 V. Sutton, 202. 
 V. Tathara, 24. 
 Swain v. Fidelity Ins. Co., 85, 95. 
 
 V. Moberly, 195. 
 Swaisland v. Dearsley, 50, 53, 55, 74. 
 Swan V. Chorpenning, 121, 
 
 •V. Drury, 193. 
 
 V. Newman, 248. 
 Swanborough v. Coventry, 75. 
 Swann v. Earl of Falmouth, 276. 
 Swartwout v. Burr, 124. 
 Swayne v. Lyon, 85, 95. 
 Sweeney v. Hawthorne, 195. 
 Sweet V. Colgate, 58. 
 
 ^ .'. Lee, 153. 
 Sweeting v. Pearce, 1 72. 
 
 V. Turner, 25, 113, 186. 
 Sweitzer v. Hummel, 104. 
 Swenson v. Halberg, 241. 
 Swett V. Colgate, 206. 
 
 V. Southworth, 37. 
 Swindell v. Richey, 195. 
 Swire v. Francis, 34. 
 
 V, Leach, 266. 
 Swires v. Brotherline, 37. 
 Switzer v. Skiles, 121. 
 Swofford V. Garmon, 142. 
 Swope V. Ardery, 3, 251. 
 
xlvi 
 
 TABLE OF CASES. 
 
 Swortzell V. Martin, 1 1 6, 251. 
 Sydnor v. Roljerts, 250. 
 Sykes v. Giles, 27, 28, 29, 128, 172, 173, 
 174. 
 v. Weld, 109. 
 Symons v. James, 44, 87, loi. 
 Sypher v. McHenry, 4. 
 
 Taber v. Perrott, 37. 
 
 Taintor v. Prendergast, 207, 208. 
 
 Talley v. Starke, 85, 241. 
 
 Tallman v. Franklin, 81, 158. 
 
 Talver v. West, i6i. 
 
 Taniplin v. James, 53, 55, l8l, 196. 
 
 Tancred v. Leyland, 274. 
 
 Tankersley v. Anderson, 252. 
 
 Tanner v. Bank of Fox Lake, 1 74. 
 
 V. Smith, 340. 
 Taplin v. Florence, 27, 30, 112. 
 Tappin ik Lomas, 149. 
 Tarleton v. Kennedy, 238. 
 Tarling v. Baxter, 1 86, 187. 
 Tarr v. Northy, 211. 
 Tarwater "'. Davis, 94. 
 Tate e'. Greenlee, 143. 
 Tatum V. Mohr, 60. 
 Taul V. Wright, 251. 
 Tayloe -'. Riggs, 45. 
 Taylor, Ex parte, 122. 
 
 V- Brewer, 224. 
 
 V. Brown, 340. 
 
 V. Bullen, 86. 
 
 V. Cooper, 248. 
 
 V. Crowland Gas Co., 9. 
 
 V. Fleet, 52, 61, 117. 
 
 V. Gilpin, 248. 
 
 V. Graham, 252. 
 
 V. Hopkins, 22, 29. 
 
 V. Longworth, 103. 
 
 V. Luther, 197. 
 
 I'. McKeand, 35. 
 
 V. Martindale, 50, 53. 
 
 ■u. Plumer, 232. 
 
 ■V. Robinson, 187. 
 
 V. Salmon, 28, 150, 156. 
 
 V. Snow, 250. 
 
 V. Stringer, 29. 
 
 V. WiKon, 27, 173. 
 Taymon v. Mitchell, 192. 
 Taymouth v. Koehler, 22. 
 Teaffe v. Simmons, 1 82. 
 Teal V. Anty, 147. 
 Tebbs V. Lewis, 2l8. 
 Teed v. Teed, 164. 
 Teel V. Vancey, 238, 239. 
 Tempest v. Kilncr, 149, 204. 
 Ten Broeck v. Livingston, 76, 94. 
 Tennant v. Field, 277. 
 
 V. Trenchard, 238. 
 Terry v. Fitzgerald, 86. 
 Tervvilliger v. Brown, 239. 
 
 Teubner 7). Moller, 250. 
 Tevis V. Hicks, 248. 
 Tew V. Harris, 350. 
 Tewkesbury v. Bennett, 59. 
 Thacher v. Pray, 22. 
 Tharin v. Fickling, 104. 
 Thayer v. Felt, 116. 
 
 V. Sheriff, 29. 
 Thomas v. Beebe, 64. 
 
 V. Brown, 108, 151, 179. 
 V. Davenport, 104. 
 V. De Baum, 248. 
 V. Harries, 277. 
 V. Hebenstreit, 249, 251. 
 V. Kerr, 27. 
 V. Lincoln, 224. 
 V. Poole, 82. 
 V. Todd, 51. 
 Thomason v. Craighead, 237. 
 Thompson v. Adams, 248. 
 V. Bertrand, 60. 
 V. Craig, 22. 
 V. Davies, 121. 
 V. Diniond, 195. 
 V. Gould, 105, 184. 
 V. Hardman, 237. 
 V. Kelly, 55, 56, no, 129, 
 
 172, 196, 211. 
 V. McXamara, 249. 
 V. Mashiter, 266. 
 V. Munger, 194. 
 V. Ringer, 196. 
 V. Smith, 248. 
 V. Toland, 282. 
 V. Tolmie, 237. 
 Thomson v. Davenport, 27, 208. 
 Thorn v. Ingram, 248. 
 Thornett v. Haines, 133, 139, 180. 
 Thome v. Deas, 33. 
 
 V. McVeagh, 116. 
 Thornton v. Adams, 263. 
 V. Boyden, 34. 
 V. Charles, 154. 
 V. Irwin, 239. 
 V. Kelly, 150. 
 V. Wilson, 252. 
 Thorp V. McCullum, 4. 
 Thorold v. Smith, 174. 
 Threlkelds v. Campbell, 248. 
 Thrifft V. Frittz, 85. 
 Thurston v. Barnes, 250. 
 Thweatt -'. McLeod, 192. 
 Tibbetts v. Jageman, III. 
 Tibbs 11. Allen, 241. 
 Tidrick v. Rice, 22. 
 Tiernan v. Wilson, 246, 249, 251. 
 Tift %<. Barton, 251. 
 Tillman v. Jackson, 250. 
 Tilton V. Tilton, 197. 
 Timberlake v. Parish, 45. 
 Timlierraan v. Craddock, 222. 
 
TABLE OF CASES. 
 
 xlvii 
 
 Tingley v. Cutler, 109. 
 Tinkom v. Purdy, n6, 247, 251. 
 Tinney v. Ashley, 104. 
 Tipton V. Powell, 248. 
 Tisdale v. Harris, 150. 
 Tobey v. Bristol, 108. 
 Todd V. Dowd, 248. 
 V. Moore, 4. 
 I/. Taft, 151. 
 Toland v. Murray, 208. 
 Toledo R.R. Co. v. Nordyke, 170. 
 Toleman v. Portbury, 19, III. 
 Toler V. Toler, 5. 
 Tolson V. Sheard, 199. 
 Tomkins v. Savory, 167. 
 
 V, White, 50, 51, 57. 
 V. Willshear, 233. 
 Tomkinson v. Staight, 145. 
 Tomlin v. McChord, 85, 95. 
 Tomlinson v. Savage, 91, 132. 
 Tompkins v. Haas, 162. 
 
 V. Hyatt, 192. 
 Tongue v. Nutwell, 185. 
 Tooley v. Kane, 248. 
 Toomer v. Dawson, 155. 
 To-pi V. King, 170. 
 Topham v. Braddlck, 232, 233. 
 Toplis V. Grane, 259. 
 Torrance v. Bolton, 44, 47, 52, 76, 88, 
 
 182, 190. 
 Towell V. Gatewood, 60, 117. 
 Towle V. Leavitt, 25, 27, 131. 
 Towne v. Collins, 4. 
 Towner v. Lucas, 46. 
 Townes v. Birchett, 25. 
 Townsend v. Hargraves, 161. 
 
 V. Stangroom, 64. 
 
 V. Van Tassell, 36. 
 Townshend v. Simon, 195. 
 
 Marquis of, v. Stangroom, 
 46. ■ 
 Trabue v. Ingles, 248. 
 Trammel v. Simmons, 248. 
 Trappan v. Morie, 268. 
 Travels v. Crane, 32. 
 Trent v. Hunt, 254. 
 Trevillian v. Pine, 258. 
 Triche, Succession of, 95. 
 Trichel v. Myers, 89. 
 Trieber v. Knabe, 266, 267. 
 Tripp V. Cook, 248. 
 Trotter v. White, 192. 
 Troup V. Wood, 121. 
 Trower v. Newcome, 56. 
 Truax v. Thorne, 238. 
 Trust V. Delaplaine, 121, 131. 
 Tubal Cain, The, 220. 
 Tucker v. Harris, 250. 
 V. Morris, 217. 
 V. Wood, 96. 
 Tufts V. Charlestown, 82. 
 
 Tull V. David, 157. 
 Turley v. Bates, 186. 
 Turner v. Adams, 190. 
 
 V. Burkinshaw, 232. 
 V. Goulden, 42, 
 V. Marriott, 182. 
 V. Turner, 51, 73. 
 v. Webster, 226. 
 V. West Bromwick Union, 71. 
 V. Wilcox, 22. 
 and Skelton, In re, 52. 
 Tuthill V. Babcock, 53, 190. 
 Tuttle V. Brown, 59. 
 
 V. Jackson, 238. 
 V. Robinson, 93. 
 Tutton V. Darke, 260, 265. 
 Twigg V. Fifield, 248. 
 Twining v. Morrice, 71, 120, 125, 137, 
 
 142. 
 Twyford v. Wareup, 64. 
 Tyler, In re, i. 
 
 V. Black, 190. 
 V. Freeman, 25. 
 Tynes v. Grimstead, 126. 
 Tyrconnell, Earl of, v. Duke of Ancas- 
 
 ter, 74. 
 Tyree v. Williams, 2, 94. 
 Tyson v. Hardesty, 64. 
 V. Mickle, 126. 
 V. Smith, 94. 
 
 Udell v. Atherton, 119. 
 Uhl V. Dighton, 260. 
 Underbill v. Allen, 198. 
 
 V. Van Cortland, 93. 
 Underwood v. McVeigh, 142. 
 Ungley v, Ungley, 197. 
 Union Bank v. Campbell, 192. 
 
 V. Emerson, 64. 
 Union Gold Mining Co. v. Rocky 
 
 Mountain National Bank, 22. 
 Union Refining Co. v. Pentecost, 21. 
 United Kingdom Life Assurance Co., 
 
 In re, 218. 
 United Stages v. Breed, 165. 
 
 ■u. Drennen, n6. 
 V. Duncan, 194, 248. 
 V. Smith, 169. 
 V. State'Bank, 232. 
 United States Bank v. Schultz, 250. 
 
 V. Voorhees, 250. 
 Unity Joint Stock Banking Association, 
 
 Ex parte, 123. 
 Upham V. Hamill, 192. 
 Upperton v. Nicholson, 71. 
 Upsdell V. Stewart, 42. 
 
 Vail v. Jacobs, 29. 
 
 u. Nelson, 192. 
 Vale of Neath Colliery Co. v. Furness, 
 92. 
 
xlviii 
 
 TABLE OF CASES. 
 
 Van Arsdcile "'. Howard, 6i, 117. 
 Van Arsdalen v. Vail, 248. 
 Van Bokelen -'. Taylor, 164. 
 Van Buskirk zk Day, 192. 
 Van Dyke v. Martin, 250. 
 \'an Epps V. Van Epps, 5. 
 Van Eps v. Schenectady, 194. 
 Van Rennselaer 7'. Kearney, 202. 
 
 I'. Quackenboss, 268. 
 Van Schaack v. Robbins, 121. 
 Van Sickler v. Jacobs, 266, 269. 
 Van Wuert v. Albany & Susquehanna 
 
 R.R. Co., 149. 
 Vanbibber v. Sa«'yevs, 24S. 
 Vanbussum v. Maloney, 237, 241. 
 Vance v. Foster, 184. 
 Vandenbergh v. Spooner, 149. 
 Vanduyne v. Vanduyne, 241, 252. 
 Vandyke v. Johns, 24S. 
 Vane v. Vane, 191. 
 Vannerson v. Cord, 249. 
 Vanscoyoc z'. Kimler, 114. 
 Vantrees v. Hyatt, 121. 
 Vaughan :■. Hancock, 146. 
 Vaughn v. Ely, 250. 
 
 V. Smith, 248. 
 Vausse v. Russell, 269. 
 ^^easey 7/. Doton, 57. 
 Veazie ». Williams, 91, 120, 126, 131, 
 
 132, 140, 237. 
 Vechte v. Bronnell, 273, 275. 
 Veeder v. Fonda, 66, 242. 
 Vere t'. Smith, 231. 
 ^'erplank v. Caines, 103. 
 Very v. Watkins, 237. 
 ^^esey v. Elwood, 248. 
 Viclcers v. Vickers, 93. 
 Victor Sewing Machine Co. v. Heller, 
 
 172. 
 Vielie v. Osgood, 154. 
 Vigers v. Pike, 192. 
 Vilas V. Reynolds, 252. 
 MUines i'. Novfleet, 4. 
 Violet 1). Heath, 170. 
 Vivian z'. Moat, 80. 
 Vliet z'. Camp, 165. 
 Vogler z'. Montgomery, 250. 
 Voorhees ;:'. DeMyer, 95. 
 Voorhis v. Freeman, 64. 
 \'osburgh v. Huntington, 34. 
 Vowles z'. Craig, 68. 
 
 Waddell v. Wolfe, 96. 
 Wade T'. Harper, 125. 
 
 z'. Marsh, 254. 
 
 V. Moffitt, 188. 
 
 V. Saunders, 116, 251. 
 Waggener z'. Lyles, 203. 
 Waggoner v, Dubois, 250. 
 Wagner zi. Cohen, 248. 
 Wain V. Warlters, 150, 153. 
 
 Wainscott 11. Silvers, 105. 
 V. Smith, 188. 
 Wainwright, In re, 125. 
 
 V. Read, 46, 55, 85, 89, 197. 
 Wake V. Harrop, 207. 
 Wakeman v. Hoyt, I. 
 Waldo V. Williams, 24I. 
 Walker v. Bartlett, 149. 
 V. Clay, 35. 
 V. Constable, 180. 
 V. Dennison, 48. 
 V. Derby, 251. 
 v. Gascoigne, 134. 
 V. Giles, 166, 167. 
 V. Herring, 150, 154, 158. 
 V. Hoisington, 60. 
 V. Moore, no. 
 V. Morris, 237. 
 V. Nightingale, 134. 
 V. Nussey, 163. 
 V. Schum, 246. 
 7'. Sherman, 93. 
 V. Supple, 150. 
 V. Walker, 4, 37, 211, 24S. 
 V. Worcester, 82. 
 Wallp. Stubbs, 51. 
 
 Wallace v. Atlanta Medical College, 250. 
 V. Associate Reformed Church, 
 
 4. 
 V. Berger, 250. 
 V. Brown, 199. 
 V. Feeley, 241. 
 V. Harmstead, 254. 
 V. Rogers, 166. 
 Waller v. Tate, 250. 
 Walling V. Kinnard, 104. 
 Wallington's Estate, 4. 
 Wallis V. Little, 45. 
 
 V. Manhattan Bank, 32. 
 Walrath -'. Ingles, 164. 
 V. Richie, 164. 
 Walsh V. Barton, 150. 
 Walter v. Gernaut, 121. 
 V. Locke, 197. 
 V. Rumbal, 278. 
 Walters V. Hargrove, 241. 
 Walton V. Bryenth, 170. 
 Walworth 7'. Stevenson, 237. 
 Wambaugh 7'. Gates, 237. 
 Wampler 7'. Shipley, 29. 
 Want V. Stallibrass, 108. 
 Ward V. Cooke, 250, 
 
 V. Hobbs, 60, 116, 117, 118,206. 
 7'. HoUin, 247. 
 V, James, 225. 
 7'. Lawrence, 222. 
 V. Smith, 4. 
 7'. Wiman, 8, 76, 87. 
 Ware v. Johnson, 56. 
 Warfield v. Dorsey, 143. 
 V. Ross, 249. 
 
TABLE OF CASES. 
 
 xlix 
 
 Waring v. Hoggart, 48, 50, 51, 74. 
 
 V. Waring, 240. 
 Warlow V. Harrison, 23, 27, 28, 30, 32, 
 
 126, 127, 133, 139, 141. 
 Warner v. Daniels, 47, 190, 192. 
 
 V. Hatfield, 103. 
 Warren v. Crew, 164. 
 
 V. Homestead, 4. 
 
 V. Leland, 116, 148, 247. 
 
 V. Paul, 170. 
 
 V. Philadelphia Coal Co., 59, 
 
 117. 
 V. Wheeler, 193. 
 Warwick v. Slade, 31. 
 
 V. The Amy, 220. 
 Warwicke v. Noakes, 24, 172, 231. 
 Washburn v. Cuddihy, 60. 
 V. Fletcher, 207. 
 v. Green, 248. 
 V. Pond, 282. 
 Washington R.R. Co. v. Alexandria 
 
 R.R. Co., 4. 
 Wason V. Rowe, 59, J 1 7. 
 Wasson v. English, 4. 
 Waterhouse v. Dorr, 14. 
 
 V. Wilkinson, 9. 
 Waterman v. Spaulding, 87. 
 Watkins v. Stockett, 197. 
 
 V. Vince, 123. 
 Watling V. Horwood, 148, 168. 
 Watson V. Church, 240. 
 TJ. Denton, 60. 
 V. Gray, 63. 
 V. Hoy, 24S. 
 V. King, 32. 
 V. Main, 263. 
 V, Spratley, 149. 
 V. Violett, 143. 
 Watt V. McGalliard, 249. 
 Watts v. Friend, 145. 
 V. Scott, 248. 
 V. Waddle, 85, 95. 
 Weakley v. Gurley, 194. 
 Wear v. Parish, 64. 
 Weart v P^ose, 64. 
 Weaver v. Carter, 64. 
 V. Guyer, 252. 
 Webb V. Kirby, 49. 
 Webber v. Cox, 250. 
 
 V. Shearman, 258. 
 Webster v. Cecil, 54. 
 
 V. French, 120. 
 ■V. Haworth, 76. 
 V. Hill, 248. 
 u. Hoban, 109, 196. 
 Weddigen v. Boston Elastic Fabric Co., 
 
 174. 
 Weed V. Saratoga R.R. Co., 207. 
 Weems v. Brewer, 71, 72, 240. 
 Weidell v. Rosberry, 266. 
 Weidler v. Farmers' Bank, 20. 
 
 Weimer v. Clement, 59, 117. 
 Weir V. Brooks, 252. 
 Weiss V. Jahn, 266. 
 Weitzel v. Fry, 251. 
 Welch V. Louis, 85. 
 
 V. Murray, 250. 
 Welford v. Beazley, 153. 
 Wells V. Guttling, 84. 
 V. Day, 56, 194. 
 V. Hornish, 253. 
 V. Kingston-upon-HuU, 146. 
 V. Moody, 276. 
 ■V. Wells, 103. 
 Wellshear v. Kelly, 250. 
 Welsh V. Bayard, 159. 
 
 ■u. Freeman, 2U. 
 Wentworth v. Outhwaite, 188. 
 Werner v. Ropiequet, 253, 258. 
 Wesley v. Thomas, 197. 
 West V. Cooper, 86, 250. 
 V. Davis, 249. 
 V. Kelly, 164. 
 V. Sink, 268. 
 V. Sloan, 4. 
 V. Waddill, 4, 5. 
 Westerman v. Means, 103. 
 Western R.R. Co. v. Babcock, 52. 
 Weston V. Bird, 80, 81. 
 
 w. McMillan, 207. 
 V. Weston, 93. 
 Wetzler v. Schauman, 249. 
 Wharton v. Naylor, 267. 
 Wheatley v. Slade, 107. 
 V. Terry, 241. 
 V. Tutt, 85. 
 Wheeldon v. Burrows, 75, 76. 
 Wheeler v. CoUier, 132, 133, 135. 
 V. Kennedy, 252. 
 V. Newbould, 282. 
 Wheeler & Wilson Manufacturing Co 
 
 V. Givan, 172. 
 Wheelwright v. Depeyster, 4. 
 Whicker v. Crews, 64. 
 Whitbeck v. Rowe, 241, 249. 
 Whitbread v. Brockhurst, 198. 
 Whitcomb v. Minchin, 28. 
 White V. Bartlett, 177, 233. 
 •V. Bennett, 208. 
 v. Bradshaw, 56, 69. 
 V. Chapman, 227. 
 V. Cox, 124. 
 V. Crew, 20. 
 V. Cuddon, 54, 74, 107. 
 V. Damon, 4. 
 V. Davis, 250. 
 V. Flannigain, 82. 
 V. Floyd, 249. 
 V. Foster, 147. 
 V. Garden, 192. 
 V. Hudson, 121. 
 V. Iselin, 4. 
 
TABLE OF CASES. 
 
 White V. Madison, 33, 211. 
 V. Mitchell, 188. 
 21. Maynard, 147. 
 V. Proctor, 20, 23, 29. 
 7/. Smith, 33. 
 V. Trotter, 250. 
 V. Ward, 126, 239. 
 ■u. Watkins, 126, 128, 1 58. 
 V. Watts, 251. 
 V. Williams, 54, 55. 
 Whitecomb v. Jacob, 232. 
 Whitehead v. Potter, 208. 
 V. Taylor, 256. 
 V. Wells, 22. 
 Whiteside v. Jennings, 208. 
 Whiting V. Lake, 266. 
 
 V. U.S. Bank, 237. 
 Whitlock, Matter of, 76. 
 Whitman v. Fisher, 237. 
 V. Taylor, 250. 
 Whitmarsh v. Walker, 147. 
 Whitney v. Armstrong, 36. 
 
 V. Boardman, 60, 117. 
 -', Sutton, 59, 117. 
 ^Vhittaker, Ex parte, 121, 199. 
 \^'hittemore v. Gibbs, 146, 150. 
 
 V. Whittemore, 65, 66, 107. 
 Whittier v. Dana, 166. 
 Whittington v. Corder, 62, 87. 
 Whitworth v. Carter, 192. 
 Whitty V. Lord Dillon, 67. 
 Wicker v. Hoppock, 121. 
 Wickman v. Robinson, 183. 
 ^Vidner v. Lane, 32, 
 Wiggins, Ex parte, 5, 125, 239. 
 V. Armstrong, 263. 
 V. Chicago, 7. 
 V. Lord, 176. 
 Wigglesworth v. Steers, 124. 
 Wilbur V. Cartwright, 59, 117. 
 
 V. How, 121. 
 Wilcox V. Chicago R.R. Co., 34. 
 Wilcox Silver Plate Co. v. Green, 163, 
 
 164. 
 AMlcox on Searby, 267. 
 Wilde V. Gibson, 48, So, 107. 
 Wiley V. Robert, 154, 159. 
 Wilkerson v. Allen, 248. 
 Wilkes V. Ellis, i, 18. 
 V, Ferris, 162. 
 Wilkins v. Fry, 342. 
 
 T. Vashbinder, 93. 
 Wilkinson v. Alston, 222. 
 ■V. Cam]->bell, 24. 
 V. Martin, 221. 
 Willan V. WiUan, 121. 
 Willard v. Stevens, 60, 117. 
 Willetts V. Van Alst, 181. 
 William v. Doran, 247. 
 Williams, Case of, 134. 
 ■u. Allison, 251. 
 
 Williams v. Attenborough, 238. 
 V. Bacon, 153, 192. 
 V. Barlow, 195. 
 V. Barton, 33. 
 V. Bradley, 66, 133. 
 V. Dakln, 109. 
 7j. Evans, 28, 145, 173, 197. 
 V. Gill, 250. 
 V. Glenton, 104. 
 V. Hathasvay, 202. 
 V. Healey, 193. 
 V. Holmes, 24, 113, 266. 
 V. Howard, 258, 276. 
 V. Jones, 251. 
 V. Jordan, 150, 159. 
 V. Lake, 149, 150. 
 V. lines, 196. 
 V. Littlefield, 260. 
 V. Marshall, 4. 
 V. Merle, 35. 
 V. Millington, 21, 25, 27, 28. 
 
 "3, 175. 228,234. 
 V. Morris, 151, 153. 
 V. Poor, 25. 
 V. Reynolds, 203, 204. 
 V. Rhodes, 4. 
 V. Rogers, no. 
 V. Spencer, 265. 
 v. Stiven, 257. 
 V. Storm, 22. 
 V. Terboss, 258. 
 V. Van Tuyl, 4. 
 V. White, 37. 
 V. Woodruff, 241. 
 V. Woods, 29, 165. 
 Williamson v. Baltimore, 229. 
 V. Barton, 209. 
 V. Berry, 3, 85, 237, 248. 
 V. Carraday, 121. 
 V. Dale, 247, 249. 
 V. Raney, 192. 
 V. Williamson, 199. 
 Williford v. Bentley, 64. 
 Williston V. Morse, 9. 
 Willmott V. Barber, 199. 
 Wilmer v. Atlanta Railw. Co., 241. 
 Willoughby, Ex parte, 188. 
 
 V. Backhouse, 274. 
 Wilmot V. Wilkinson, 86, 95. 
 Wilson V. Bellows, 250. 
 V. Clapham, 104. 
 V. Duncan, 237. 
 V. Greenwood, 238. 
 V. Kellogg, 237. 
 V. Martin, 147. 
 %'. Miller, 250. 
 V. Moore, 233. 
 V. Nightingale, 278. 
 V. Randall, 165. 
 V. Shields, 248. 
 V. Troup, 4. 
 
TABLE OF CASES. 
 
 li 
 
 Wilson V. Tummon, 21, 22. 
 
 V. Twitty, 251. 
 
 V. Wilson, 180, 191, 193, 198, 
 248. 
 Wilton V. Harwood, 197. 
 Wiltshire v. Marshall, 381. 
 V. Sims, 28, 175. 
 Wiltz V. Morrell, 34. 
 Wimer v. Obear, 196. 
 Winch V. Winchester, 46, 64, 65. 
 Winchester v. Winchester, 237. 
 Winfield v. Adams, ill. 
 Winn V. Albert, 197. 
 Winne v. Reynolds, 71, 72, 76, 85, 94, 
 
 95- 
 Winslow V. Henry, 260. 
 V. Loring, 196. 
 V. Merchants' Ins. Co., 64. 
 Winter v. Blades, 104, 
 V. Geroe, 4. 
 V. Mair, 223. 
 Winterbourne v. Morgan, 279. 
 Winters v. Burford, 86, 251. 
 Winton v. Sherman, 103. 
 Wisdom V. Parker, 237. 
 Wise V. Ray, 154. 
 Wisvvall V. McGown, 103. 
 Witbeck v. Waine, 202. 
 Woehler v. Endter, 248. 
 Woglam i>. Cowperthwaite, 277. 
 Wolcott V. Mount, 57, 59, 117. 
 
 V. Schenck, 241. 
 Wolf V. Van Metre, 29, 116. 
 Wolfe V. Luyster, 25, 121, 131. 
 
 V. Sharp, 195. 
 Wolford V. Phelps, 250. 
 Wood V. Commonwealth, 14. 
 V. Doane, 250. 
 V. Hayes, 282. 
 V, Hennen, 121. 
 V. Humphrey, 108. 
 V. Manley, 27, 113. 
 v. Mann, 171, 248. 
 V. Martin, 55. 
 
 V. Midgley, 20, 23, 28, 158, 197. 
 V. Morehouse, 250. 
 V. Northwestern Ins. Co.,105,185. 
 V. Nunn, 276. 
 V. Parker, 248. 
 V. Scarth, 46, 151. 
 V. Smith, 117. 
 V. Wood, 225. 
 V. Young, 249. 
 Woodbury v. Parker, 29. 
 
 V. Robbins, 60. 
 WoodhuU V. Neafje, 196. 
 
 V. Osborne, 241. 
 Woodruff V. Cook, 4. 
 Woods V. Dille, 197. 
 
 ■v. Durrant, 277. 
 V. Hall, 132. 
 
 Woods I/. Hudson, 121. 
 
 V. Mitchell, 188. 
 
 V. Monell, 86, 241, 252. 
 Woodville v. Reed, 174. 
 Woodward v. Boston, 29. 
 V, Bullock, 37. 
 V. Harris, 199. 
 V. Miller, 134, 135. 
 Woody V. Smith, 121. 
 Woolfe V. Home, 27, 105, 113, 187, 200, 
 
 208, 209, 211, 228. 
 Woollam V. Hearne, 46. 
 WooUey v. Clark, 256. 
 Wooton V. Hinkle, 121. 
 Wormley z>. Wormley, 239. 
 Worrall v. Munn, 154. 
 Worsham v. Freeman, 238. 
 Worthington v. Cowles, 209. 
 V. Curd, 165. 
 V. Warrington, 84. 
 Worthy ii. Johnson, 4, 29, 194. 
 Wortman v. Skinner, 5. 
 Wren v. Kirton, 233. 
 Wright V. Atlanta, 7. 
 
 V. Bigg, 36. 
 
 V. Cantzon, 245, 248. 
 
 V. Cobb, 152. 
 
 </. Dannah, 26, 1 5 7. 
 
 V. De Groff, 146. 
 
 ■i,. Deklyne, 45, 55, 89. 
 
 ■V. Freeman, 216. 
 
 V. Weeks, 152. 
 
 V. Williams, 256, 275. 
 
 V. Wilson, 51, 56. 
 
 V. Wright, 239. 
 
 V. Yetts, 85. 
 Wuesthoff V. Seymour, 54, 55. 
 Wylie V. Marine Bank, 224. 
 Wyman z/. Hooper, 4. 
 Wyndham v. Chetwynd, 143. 
 Wynkoop v. Seal, 282. 
 Wynn v. Cox, 192. 
 Wynne v. Price, 201. 
 Wythes v. 'Let, 182. 
 
 Yale v. Seeley, 147. 
 Yancey v. Hoppins, 29. 
 Yard v. Lea, 9. 
 Yates, Matter of, 248. 
 
 V. Bond, 29, 119. 
 
 ■u. Farebrother, 183. 
 
 V. Hoppe, 235. 
 Yauger v. Skinner, 124. 
 Yeackel v. Litchfield, 4, 239. 
 Yeatman v. Corder, 211. 
 Yerby v, Grigsby, 24, 154. 
 Yerkes v. Wilson, 132. 
 Yongue v. Cathcart, 26. 
 Young V. Bowyer, 248. 
 
 V. Guy, 172. 
 
 v. Lillard, 85, 95. 
 
Hi 
 
 TABLE OF CASES. 
 
 Young I'. Rathbone, S5, 95, 103. 
 
 V. Smith, 250. 
 
 'c'. Teague, 24S. 
 
 '•. White, 172. 
 Youngblood v. Lowry, 267. 
 
 Yourt V. Hopkins, 154. 
 
 Zeringue v. Williams, 64. 
 Zimmerman v. Harmon, 4. 
 Zirkle z'. McCue, 237. 
 
THE 
 
 LAW OF AUCTIONS. 
 
 INTRODUCTORY CHAPTER. 
 
 Definition of Auction and Auctioneer. — An auction, in the 
 widest sense of the term, is a sale, however conducted, by 
 which a person obliges himself to transfer property to the 
 highest bidder within the conditions of the sale ; it ordinarily 
 denotes such a sale conducted in the usual manner (a). An 
 auctioneer is a person by whom auctions are conducted (5).i 
 
 (a) Cf. Dart, 1 77 ; and see next 
 page. 
 
 (f) For circumstantial definitions of 
 auction and auctioneer, see the statutes 
 19 Geo. III. c. 56, s. 3, and 42 Geo. III. 
 <_. 93, o. 14, both repealed by 8 & 9 Vict. 
 c. 15; and also ». 4 of the last-named 
 statute (see Appendix, ^os/, p. 388). 
 Auctioneers were sometimes called 
 brokers in our old law. Spelman in his 
 Glossary, " Auctionarii^" defines them 
 thus : " Qui publicis subhastationibus 
 prasunt, propola, et quos Angli 'bro- 
 kers' dicimus." Cf. Stoiy, Ag., p. 24, 
 note 4. For the distinction between 
 auctioneers and brokers, see post, p. 18, 
 note (w). An auctioneer is a trader 
 within the Bankruptcy Act, 1869 (32 & 
 33 Vict. i;. 71). ["The ground taken 
 in England," says Lowell, J., in re 
 Tyler, 4 N.B.R. 104, "that every one 
 who buys and sells goods is quoad hoc 
 ... a tradesman may admit of question. 
 
 And it is very difficult to draw any line 
 founded solely on the smallness of the 
 transactions. It would seem that any- 
 one who buys on credit, with intent to 
 sell again at a profit, is fairly within 
 the mischief sought to be remedied by 
 the [Bankrupt] Act." And most of the 
 American cases restrict the term trader 
 to those whose business it is to buy goods 
 on credit for the purpose of a re-sale : 
 In re Cowles, i N.B.R. 280; in re Cote, 
 14 N.B.R. 503; inre]oTey, 2 Bond, 336; 
 s.c, 2 N.B.R. 668 ; in re Garrison, 
 7 N.B.R. 287; /«?-^0'Bannon, 2N.B.R. 
 15; in re Rogers, : Lowell, 423; s.c, 
 3 N.B.R. 564 ; in re Cocks, 3 Ben. 
 260; Love V. Love, 21 Pittsb. L. Jour, 
 loi; Hall V. Cooley, 3 N.Y. Leg. Obs. 
 282 ; in re Chandler, I Lowell, 478 ; 
 S.C, 4 N.B.R. 213 ; Wakeman v. Hoyt, 
 5 Law Rep. 309 ; Baldwin v. Rosseau, 
 I N.Y. Leg. Obs. 391 ; in re Hoyt, 
 I id. 132.] 
 
 [' An auction is a public sale of property to the highest bidder, whether con- 
 ducted by public outcry or in any other manner ; an auctioneer is a person 
 authorized to sell the goods of others at a public sale, one who conducts a public 
 sale or auction : Bouvier's Law Die, verba cit. Judge Story (Story on Agency, 
 § 27) defines an auctioneer as a " person who is authorized to sell goods or mer- 
 
 I 
 
*2 INTRODUCTION. 
 
 Subject-matter of Auctions. — The property forming the sub- 
 ject of an auction-sale may be either real or personal, or 
 both (c) ; it is sold, sometimes as [2] a whole, sometimes in 
 lots ; and the property of several owners is frequently offered 
 for sale at one and the same auction. 
 
 Kinds of AuctionB. — I. Ordinary. — The usual manner of 
 conducting an auction is as follows. The fact that the sale 
 is to be held, the particulars of the property, and the time 
 and place of the sale, are advertised in the newspapers or by 
 handbills (in some places, the public crier), or in both ways. 
 At the time and place appointed, the auctioneer, from his 
 desk or rostrum, reads aloud the conditions upon which the 
 property will be transferred to the highest bidder, and invites 
 those present to bid. Thereupon, those who are desirous of 
 purchasing bid, one after the other, each succeeding offer 
 being higher than the preceding one, and the biddings being 
 called by the auctioneer.^ The highest bidder is declared 
 the purchaser, the acceptance of his offer being signified to 
 the company by the auctioneer striking his desk with a 
 small portable hammer ; whence the auctioneer is said to 
 knock down the property to the buyer.^ If there is a 
 
 (c) Wife Auctions. — Wife auctions, in the marriage service of the Church 
 
 in ancient times, were of annual occur- of England — has perhaps not even yet 
 
 rence in Babylonia; see the interesting died out. It is said that the practice of 
 
 description of Herodotus (I., 196), who selling marriageable girls by auction 
 
 speaks of them as being, in his opinion, obtained until recently at the great fairs 
 
 the best of the Babylonian customs, of Nijni-Novgorod, in Russia ; and a 
 
 The view that women are only a species belief that the sale of a wife by auction 
 
 of property • — a view of which traces operates legally as a divorce appears 
 
 have been discerned in the pandects of still to linger in some of our own rural 
 
 the Netherlands and Spain, in the West and manufacturing districts. 
 Gothic and Longobard laws, and even 
 
 chandise at public auction or sale for a recompense, or (as it is commonly called) 
 a commission." The auctioneer can only sell ; he has no authority to make a 
 purchase for his principal : .Story on Agency, § 27.] 
 
 [' A valid bid may be made by letter : Dickerman v. Burgess, 20 Ills. 266. 
 Where a testator by his w'-Xk directed his real estate to be sold by auction, and it 
 was advertised for sale accordingly, whereupon A offered by letter a certain sum 
 for the estate, and, no other person bidding as much at the sale, it was not knocked 
 down, but was afterwards conveyed to A, this was held to be a valid sale by auction 
 within the terms of the will: Tyree v. Williams, 3 Bibb (Ky.) 365. But since a 
 constable can sell only for cash on the spot, he cannot accept a bid sent in writing 
 and unaccompanied by the money : Sparling v. Todd, 27 Ohio St. 521.] 
 
 P A purchaser at an approved administration sale who has paid the purchase- 
 
 2 
 
INTRODUCTION. 3* 
 
 reserve, and it is not reached, the auctioneer withdraws the 
 property. 
 
 2. Roups. — In Scotland, where an auction is called a roup, 
 the proceedings are much the same, except that disputes 
 arising at the auction are commonly referred to an umpire, 
 called the judge of roup, and that, on the sale of an estate, 
 a sum at which the biddings are to commence, called the 
 upset price, is generally published beforehand. 
 
 3. Dutch Auctions. — In a so-called Dutch auction^ the 
 property is put up at a high price, and if no one takes it at 
 that sum, a less amount is named, and so on, until some one 
 closes with the offer (a?). 
 
 [3] 4. Auctions for Redemption of Land Tax. — In some 
 English counties a singular method of selling estates for 
 the redemption of the land tax is adopted. The auctioneer 
 states the sum of money wanted and the highest number 
 of acres with which the seller will part, and the person 
 who will accept the smallest quantity of land for the sum 
 required is declared the purchaser ; so that persons bid down- 
 wards, until some one names a quantity of land less than 
 any one else will take.* 
 
 5. Surveys. — There is also a mode of sale, principally in 
 use in Devonshire and Cornwall, where it is called a survey, 
 which differs from the common auction in this circumstance 
 
 ( (/) Former Auctions of Post ceedings began in the same manner as 
 
 Horse Duties. — The mode of con- in a Dutch auction ; but, when any per- 
 
 ducting sales by auction of the former son bid, others might advance on his 
 
 post horse duties was a mixture of a bidding, and the highest bidder was de- 
 
 Dutch auction and an ordinary auction, dared the purchaser, just as if the sale 
 
 The duties were put up at a large sum had been conducted in the ordinary 
 
 named in the particulars, and the pro- way. 
 
 money acquires an interest in the land, which will constitute a sufficient equitable 
 defence to ejectment by one who has taken a conveyance from the heirs with 
 actual or constructive notice : Long v. Joplin Mining Co., 68 Mo. 422. The con- 
 tract is made when the hammer falls : Jackson v. Warren, 32 Ills. 331.] 
 
 [' Putting up goods publicly for sale at a certain high price, and gradually low- 
 ering the price until some one accepts the offer, is a sale by auction within the 
 meaning of a statute forbidding auctions by unlicensed auctioneers : Deposit v. 
 Pitts, 18 Hun. (N.Y.) 475.] 
 
 [' In California, the sheriff in selling land for taxes may make the sale to that 
 purchaser who will take the smallest quantity of the land to pay the amount due 
 and the costs : Gillis v. Barnett, 38 Calif. 393. A statute prescribing this course 
 is mandatory, not directory merely : French v. Edwards, 13 Wallace, 506.] 
 
 3 
 
•3 INTRODUCTION. 
 
 only, that the seller is not bound to dispose of the property 
 at the price offered by any of the bidders ; but, if the highest 
 sum bid does not satisfy him, he offers to sell the property 
 first to the highest bidder at an advanced price above the 
 highest sum bid ; if the highest bidder refuses to -purchase 
 at the advanced price, the seller makes the same offer to 
 the next highest bidder, and so on, until one of the bidders 
 accepts the purchase, or until every bidder has refused it, in 
 which case the property remains unsold with the owner (^).i 
 Payment of Purchase-money. — As a rule, a portion of the 
 purchase-money is paid by way of deposit at the auction 
 itself, the remainder being paid, in the case of estates, upon 
 the completion of the contract by the execution of the con- 
 veyance, and in the case of goods, upon delivery (/).^ 
 
 (f) Mock Auctions. — The holding an oiTer is almost sure to effect a pur- 
 
 of mock (or trap) auctions is a not un- chase. It has been held that to fraudu- 
 
 common practice with swindlers. Per- lently knock down goods to a person 
 
 sons known as barkers are stationed who has not bid for them, and obtain 
 
 outside to allure passers-by into a room the price by intimidation, is larceny : 
 
 where confederates are ready to run up R. v. McGrath, L.R. I C.C.R. 205 ; 39 
 
 worthless articles to fancy prices, and, L.J.M.C. 7; and see Archbold, 374, 453. 
 generally, to take such advantage of the {J~) A custom of giving credit is said 
 
 public as opportunity may suggest. A to be met with in the United States of 
 
 stranger making, or even not making. North America. 
 
 [' Under the Pennsylvania statute, which provides that premises of which par- 
 tition is sought shall be allowed to such one or more of the parties in interest as 
 shall offer in writing the highest price therefor above the valuation thereof, it is 
 held that each party is limited to a single offer; and the court may compel all 
 parties to hand in their offers together, or may permit all the offers to be sealed 
 up until the court shall order them to be opened: Klohs v. Reifsnyder, 61 Penn. 
 St. 240.] 
 
 [' A sheriff on a sale under execution may demand cash of the purchaser; and 
 upon the latter's refusal to pay it, the sheriff may immediately re-sell : Isler v. 
 Andrews, 66 Nor. Car. 552. And in the absence of special provision to the con- 
 trary execution-sales must be made for cash ; Griffin v. Thompson, 2 Howard, 244; 
 Williamson v. Berry, 8 Howard, 495, 544; Ex parte State Bank, 15 Ark. 263; 
 Swope V. Ardery, 5 Ind. 213; Chase v. Monroe, 10 Foster (N.PI.) 427; Mum- 
 ford V. Armstrong, 4 Cow. (N.Y.) 553; Hutchmacher v. Harris, 38 Penn. St. 491, 
 498; Bigley v. Risher, 63 Penn. St. 152; Seitzinger v. Steinberger, 12 Penn. St. 
 379; Sauer v. Steinbauer, 14 Wise. 70. But though the sale should be for cash, 
 yet, inasmuch as the sheriff, in case of non-payment, may re-sell the property on 
 the same or a subsequent day, an authority may reasonably be inferred to give 
 reasonable time to the purchaser for the payment of the bid, provided that a 
 proper memorandum of the sale has been made : Ruckle v. Barbour, 48 Ind. 274. 
 A sale upon an execution which has not been completed by payment of the price 
 to the sheriff is a nullity: Haynes v. Ereaux, 16 La. Ann. 142.] 
 
 4 
 
INTRODUCTION 4* 
 
 [4] Commission. — The auctioneer is generally paid by a 
 commission. 
 
 Advantages of Auctions. Sales -which must be made by Auction. 
 
 — The publicity of an auction, and the competition which it 
 engenders, render it the most effectual method of ascertain- 
 ing and obtaining the market price, which is, practically, the 
 value, of property {^).^ For this reason, trustees and mort- 
 gagees, in selling estates, should, as a general rule, resort to 
 an auction, unless specially authorized to sell by private con- 
 tract (k).^ For this reason, also, the sale of an estate by 
 
 (^) Auction not Market Overt. (Penn.) 500] ; and the fact that the 
 Purchase of Trust Property by sale has been by auction is insufficient 
 Trustee. — " The sale by auction is to support a purchase by a trustee : Ex 
 evidence of the market price" — Sir parte Hughes, 6 Ves. 617; E. p. Ben- 
 John Leach, when V.-C, in Shelley w. net, 10 Ves. 393; Sanderson z/. Walker, 
 Nash, 3 Madd. at p. 236. "A sale by 13 Ves. 601; Oliver i/. Court, Dan. 301 ; 
 auction negatives the imputation of Ingle z/. Richards, 28 Beav. 361; Sugd. 
 fraud" — Lord Cottenham, C, in Earl 691. Before the passing of 31 & 32 
 of Aldborough v. Trye, 6 Madd. at p. Vict. c. 4, a purchase by private con- 
 460. Nevertheless, a sale by auction is tract of a reversionary interest could be 
 not per se a sale in market overt : Lee set aside on the mere ground of under- 
 V. Bayes (or Robinson), 18 C.B. 599; value; but, if the purchase was by auc- 
 25 L.J.C.P. 249; 2 Jur. N.S. 1093; [In tion, some further ground of relief, such 
 this country, markets overt, as they exist as fraud, surprise or mistake, had to be 
 in England, are unknown: Wheelright proved: Newton v. Hunt, 5 Sim. 511; 
 V. Depeyster, i Johns. (N.Y.) 471 ; White v. Damon, 7 Ves. 30. Now no 
 Dame v. Baldwin, 8 Mass. 518; Towne bona fide purchase of a reversionary in- 
 V. Collins, 14 id. 500; Griffith v. Fowler, terest can be set aside on the ground of 
 18 Vt. 390; Roland v. Gundy, 5 Ohio, undervalue only. 
 
 202 ; Hardy v. Metzgar, 2 Yeates (Ji) But see 23 & 24 Vict. ^. 145, ss. 
 
 (Penn.) 347; Hosack v. Weaver, i id. I, 2 (as to land), and 44 & 45 Vict. c. 
 
 478; Lecky v. McDermott, 8 Serg. & R. 41, s. 35. 
 
 [' The price brought by property, real or personal, at an auction sale is compe- 
 petent evidence of its value at that time : Croak v. Owens, 121 Mass. 28; Brigham 
 V. Evans, 113 Mass. 538; Kent v. Whitney, 9 Allen (Mass.) 62. The same 
 rule will be applied to a sherifTs sale : Gill v. McNamee, 42 N.Y. 44. But though 
 competent on the question of value, it is not conclusive; it is merely one circum- 
 stance to be considered : Gill v. McNamee, supra ; Renaud v. Peck, 2 Hilton 
 (N.Y.) 137. It has been said that the rule allowing a sale to be set aside for 
 inadequacy of price will not be extended to sales at auction : Newman v. Meek, 
 : Freem. Ch. (Miss.) 441.] 
 
 [' Executors having a general power by the will to sell are not restricted to 
 any particular mode of sale. They may execute their power by an auction sale 
 or otherwise, as they may deem best : Huger v. Huger, 9 Rich. Eq. (So. Car.) 
 217; Buckingham v. Wesson, 54 Miss. 526. But a trustee with power to sell by 
 auction must adopt that mode, though it might promote the interests of the parties 
 for him to make a private sale : Greenleaf v. Queen, : Peters, 138. Unless other- 
 wise ordered by the court, an assignee in bankruptcy was compelled to sell both 
 
 5 
 
*4 INTRODUCTION. 
 
 the Court of Chancery is usually made by way of auction (z) ; 
 a sale of personal property under an order of a County Court 
 
 (z) Where, in pursuance of an order the same order otherwise than by public 
 
 of Court directing a sale of real estate auction: Berry z*. Gibbons, L.R. 15 Eq. 
 
 by public auction, an attempt has been 150; 42 L.J. Ch. 231; but see Barlow 
 
 made to sell by public auction and has v. Osborne, 27 L.J. Ch. 30S. 
 failed, the property cannot be sold under 
 
 real and personal property at auction, under the supervision and subject to the con- 
 firmation of the court : U.S.R.S., § 5062 i. And it has been said that as the assignee's 
 right to convey depended entirely upon the statute which gave him the power, he 
 must convey in the manner prescribed by the statute, or his conveyance would be 
 a mere nullity: Stevens v. Palmer, 10 Bosw. N.Y. 60; Harrington v. Fish, 10 
 Mich. 415; Gray v. Heslep, 33 Mo. 23S; Warren v. Homestead, 33 Maine, 256; 
 Dwinel v. Perley, 32 Maine, 197; Osborn v. Baxter, 4 Cush. (Mass.) 406; Joy v. 
 Berdell, 25 Ills. 537; Holbrook v. Brenner, 31 Ills. 501. But a general order of 
 the court made under the statute has been treated as directory only in Crowley v. 
 Hyde, 116 Mass. 589. In Georgia, sales by an executor of any property belong- 
 ing to his testator's estate, except annual crops carried to market, must be made 
 by auction, unless by express authority given in the will, and the purchaser is 
 bound to see that the executor is apparently proceeding in the manner prescribed 
 by law : Neal 7'. Patten, 40 Ga. 363. It has often been said that a trustee cannot 
 purchase at an auction sale of the trust property, but that such a purchase is void 
 against the cestui que trust, and passes no title to the trustee : Michoud v, Gerod, 
 4 Howard, 503; Lenox v. Notrebe, Hempstead, 251; Thorp v. McCullum, I Gil- 
 man (Ills.) 614; Saltmarsh z/. Beene, 4 Porter (Ala.) 283; Renew !<. Butler, 30 
 Ga. 954; Faucett v. Faucett, I Bush (Ky.) 511; Cumberland Co. v. Sherman, 
 20 Md. 117; Davis v. Simpson, 5 Har. & J. (Md.) 147; Ames v. Port Huron 
 Co., II Mich. 139; Clute v. Barron, 2 Mich. 142; Dwight v. Blackmar, id. 330; 
 Roberts J/. Moseley, 64 Mo. 507; Remick v. Butterfield, II Foster (N.H.) 70; 
 Blauvelt v. Ackerman, 20 N.J. Eq. (5 C. E. Greene) 141; Obert v. Hammel, 18 
 N.J.L. (3 Har.) 73; Den v. Hilman, 7 N.J.L. (2 Hals.) 180; Den v. Wright, 
 id. 175; Forbes v. Halsey, 26 N.Y. 53; Bank of Orleans v. Torrey, 7 Hill (N.Y.) 
 260; Conger v. Ring, 11 Barb. (N.Y.) 356; Sheldon v. Sheldon, 13 Johns. (N.Y.) 
 220; De Caters -u. Le Ray de Chaumont, 3 Paige (N.Y.) 178; Kellogg z/. Wood, 
 4 id. 57S; Campbell v. Johnson, i Sandf. Ch. (N.Y.) 148; Cram v. Mitchell, id. 
 251; Boyd V. Hawkins, 2 Ired. Eq. (Nor. Car.) 304; Hunt v. Bass, 2 Dev. Eq. 
 (Nor. Car.) 292; Williams 7;. Van Tuyl, 2 Ohio St. 336; Mathews v. Dragaud, 
 3 Desaus. (So. Car.) 25; Washington R.R. Co. v. Alexandria R.R. Co., 19 Gratt. 
 (Va.) 592. That an executor or administrator cannot purchase at his own sale, 
 though at public auction, either directly or through a third person : see Boyd -/. 
 Blankman, 29 Calif. 19; Grubbs v. McGlawn, 39 Ga. 672; Miles v. Wheeler, 43 
 Ills. 123; Morgan Ti. Wattles, 69 Ind. 260; Conway v. Green, I Har. & J. (Md.) 
 151; Singstack v. Harding, 4 Har, & J. (Md.) 186; Scott v. Burch, 6 id. 67; 
 Beaubien v. Poupard, Harr. (Mich.) 206; Baines v. McGee, I Sm. & M. (Miss.) 
 208; Pearson v. Morland, 7 id. 609; Clark v. Drake, 63 Mo. 354; Skillman v. 
 Skillman, 15 N.J. Eq. (2 McCart.) 388; Winter v. Geroe, 5 N.J. Eq. (i Hals.) 
 319; Hoitt V. Webb, 36 N.H. 158; Griswold v. Chandler, 5 N.H. 492; Prindle 
 V. Beveridge, 7 Lans. (N.Y.) 225; Stiles v. Burch, 5 Paige (N.Y.) 132; Wood- 
 ruff t/. Cook, 2 Edwards (N.Y.) 259; Roberts v. Roberts, 65 Nor. Car. 27; Pratt 
 V. Longworth, 27 Ohio St. 159; Riddle v. Roll, 24 Ohio St. 572; Glass v. Great- 
 house, 20 Ohio, 503; Rosenberger's Appeal, 26 Penn. St. 67; Hear's Estate, I 
 
 6 
 
INTRODUCTION. 4* 
 
 must be by auction, unless the Court otherwise directs (J) ; 
 [A private sale by a sheriff, the statute requiring to be made by 
 public auction, is invalid: Hutchinson v. Cassidy, 46 Mo. 431.] 
 the sale of a distress under the Summary Jurisdiction Act, 
 
 (J) County Court Rules, 1875, Order XVIII., Rule 15; see post, p. 250. 
 
 Grant (Pa. Cas.) 272; Chronister v. Bushey, 7 Watts & S. (Penn.) 152; Beeson 
 V. Beeson, 9 Penn. St. 279; Estate of Wallington, i Ashmead (Penn.) 307; 
 Campbell v. McLain, 51 Penn. St. 200; Edmonds v. Crenshaw, i McCord Ch. 
 (So. Car.) 252; Bailey v. Robertson, i Gratt. (Va.) 4. The trustee must account 
 for any profits he may make on such a purchase to the cestui que trust : Bracken- 
 ridge V. Holland, 2 Blackf. (Ind.) 377; Wasson v. English, 13 Mo. 176; Shuman's 
 Appeal, 27 Penn. St. 64. The guardian or next friend of an infant is within the 
 same rule: Collins v. Smith, i Head (Tenn.) 251 ; Scott v. Freeland, 7 Sm. & 
 M. (Miss.) 409; Walker v. Walker, loi Mass. 169. Though the sale and con- 
 veyance were made to a stranger, if this appears to have been for the benefit of 
 the trustee, it is as fraudulent as a direct sale by the trustee to himself: Abbott v. 
 American Co., 33 Barb. (N.Y.) 578; Harrington v. Alexander, 6 Ohio St. 189; 
 Coat V. Coat, 63 Ills. 73 ; McGowan v. McGowan, 48 Miss. 553. The same prohi- 
 bition has been extended to the judge who orders a sale : Livingston v. Cochran, 
 33 Ark. 294; and to the agent or attorney of the trustee : West v. Waddill, 33 
 Ark. 575; Adams v. Morrison, 4 N.H. 166; but not always: Grayson z/. Weddle, 
 63 Mo. 523. But the trustee who is incompetent to purchase on his own account 
 cannot do so as agent for a third person: Neda z'. Fontenot, 2 La. Ann. 782; 
 North Baltimore Association v. Caldwell, 25 Md. 420; Hawley v. Cramer,*4 Cow. 
 (N.Y.) 717; Gould V. Gould, 36 Barb. (N.Y.) 270. If there appears to have 
 been any unfair dealing on the part of the trustee, either to bring about the Sale 
 or in the conduct of the auction, he will not be allowed to set up any rights under 
 his purchase against his cestui que trust : Prindle v. Beveridge, 7 Lans. (N.Y.) 
 225; Smith z/. Isaac, 12 Mo. 106; Keaton v. Cobb, i Dev. Eq. (Nor. Car.) 439; 
 Hayward v. Ellis, 13 Pick. (Mass.) 272; Phillips v. Terrill, 10 Heisk (Tenn.) 
 417. But the general doctrine, and that usually maintained whenever the distinc- 
 tion is brought into question, is that such sales and purchases are not utterly void, 
 but merely voidable in equity at the option of the eestuis que trustent (irrespective 
 of the fairness of the sale) ; Carter v. Thompson, 41 Ala. 375 ; Charles v. Dubose, 
 29 Ala. 367; Andrews v. Hobson, 23 Ala. 219; Boyd v. Blankman, 29 Calif. 19; 
 Bellamy v. Bellamy, 6 Fla. 62 ; Shine v. Redwine, 30 Ga. 780 ; Worthy v. John- 
 son, 8 Ga. 236; Smith v. Cranberry, 39 Ga. 381 ; Grubbs v. McGlawn, id. 672; 
 Mercer v. Newsom, 23 Ga. 151; Anderson v. Green, 46 Ga. 361; Higgins v. 
 Curtis, 82 Ills. 28; Kruse v. Steffens, 47 Ills. 112; Thorp v. McCuUum, i Gilrnan 
 (Ills.) 614; Wallace v. Associate Reformed Church, 10 Ind. 162; Shaw w. Swift, 
 I Ind. 565; Murphy z/. Teter, 56 Ind.,545; Potter v. Smith, 36 Ind. 231; Rice v. 
 Cleghorn, 21 Ind. 80; Sypher v. McHenry, 18 Iowa, 232; Bank v. Dubuque R.R. 
 Co., 8 Iowa, 277; Pratt v. Thornton, 28 Maine, 355 ; Hoffman Co. v. Cumberland 
 Co., 16 Md. 456; Mason v. Martin, 4 Md. 124; Richardson v. Jones, 3 Gill & J. 
 (Md.) 163; Dorsey v. Dorsey, 3 Har. & J. (Md.) 410; Walker v. Walker, loi 
 Mass. 169;- Ives v. Ashley, 97 Mass. 198 ; Yeackel v. Litchfield, 13 Allen (Mass.) 
 417; Wyman v. Hooper, 2 Gray (Mass.) 141 ; Robbins v. Bates, 4 Cush. (Mass.) 
 104; Arnold v. Brown, 24 Pick. (Mass.) 89, 96; Litchfield v. Cudworth, 15 id. 23, 
 3IJ Ball V. Carew, 13 id. 28, 31 ; Jennison v. Hapgood, 7 id. I ; Copeland v. 
 
 7 
 
*4 INTRODUCTION. 
 
 1879 {k), must be by auction, save so far as the person 
 against whom the distress is levied otherwise consents in 
 writing (/) ; and sales under the Pawnbrokers Act, 1872, 
 
 {k) 42 & 43 Vict. c. 49. (/) S. 43. 
 
 Mercantile Ins. Co., 6 id. 198; White i'. Iselin, 26 Minne. 487; Kern v. Chalfant, 
 7 id. 487; Scott V. Freeland, 7 Sm. & M. (Miss.) 409; Smith v. Frost, 70 N.Y. 
 65; Bostwick w. Atkins, 3 Comstock (N.Y.) 53; Davoue v. Fanning, 2 Johns. 
 Ch. (N.Y.) 252; Ames v. Downing, i Bradf. (N.Y.) 321 ; Mitchell v. McMuUen, 
 59 Mo. 252; Smith -u. Drake, 23 N.J. Eq. 302; Froneberger v. Lewis, 70 Nor. 
 Car. 456; Lee v. Howell, 69 Nor. Car. 200; Doe v. Hassell, 68 Nor. Car. 213; 
 Roberts v. Roberts, 65 Nor. Car. 27; Pitt v. Petway, 12 Ired. Law (Nor. Car.) 69 ; 
 Brothers v. Brothers, 7 Ired. Eq. (Nor. Car.) 150; Patton i/. Thompson, 2 Jones 
 Eq. (Nor. Car.) 285; Hoskins v. Wilson, 4 Dev. & Bat. Law (Nor. Car.) 243; 
 Costen's Appeal, 13 Penn. St. 292 ; Campbell v. Pennsylvania Ins. Co., 2 Wharton 
 (Penn.) 53; Clarke v. Deveaux, i So. Car. 172; Zimmerman v. Harmon, 4 Rich. 
 Eq. (So. Car.) 165; Price v. Nesbitt, i Hill, Eq. (So. Car.) 445; Armstrong i>. 
 Campbell, 3 Yerg. (Tenn.) 201. Nor will the mere confirmation of the sale by 
 the court which ordered it prevent its being set aside in equity upon the prompt 
 application of the cestui que trust : Howery v. Helms, 20 Gratt. (Va.) I; Smith 
 V. Chew, 35 Miss. 153; Davis v. Simpson, 5 Har. & J. (Md.) 147. The aflSrm- 
 ance of the sale by the beneficiaries or their acquiescence in it will make it com- 
 pletely valid: Marsh -d. Whitmore, 21 Wallace, 178; James v. James, 55 Ala. 
 525; Fuller!'. Little, 59 Ga. 338; Doe v. Roe, 33 Ga. 163; Brown v. Weaver, 
 28 Ga. 377; Williams v. Rhodes, 81 Ills. 571 ; Mitchell v. Berry, i Met. (Ky.) 
 602; Williams v. Marshall, 4 Gill & J. (Md.) 376; Goodwin v. Burns, 21 Mich. 
 211; Dunlap t/. Mitchell, 10 Ohio, 117; Johnson z/. Bennett, 39 Barb. (N.Y.) 
 237; Wilson V. Troup, 2 Cow. (N.Y.) 195 ; Jackson v. Walsh, 14 Johns. (N.Y.) 
 407 ; Jackson v. Van Dalfsen, 5 id. 43 ; ViUines v. Norfleet, 2 Dev. Eq. (Nor. 
 Car.) 167; Musselman v. Eshleman, 10 Penn. St. 394; Beeson z/.'Beeson, 9 Penn. 
 St. 279; Connolly v. Hammond, 51 Texas, 635; Todd v. Moore, i Leigh (Va.) 
 457. But the acquiescence, to bar the rights of the cestui que trust, must have 
 been with knowledge of the circumstances; West -■. Sloan, 3 Jones Eq. (Nor. 
 Car.) 102; and though an acceptance of the proceeds of the sale would in gen- 
 eral be an affirmance thereof, yet their acceptance under protest and with an 
 express reservation of the right to contest the validity of the sale, will not preclude 
 the beneficiary from afterwards instituting proceedings to set aside the sale and 
 have a resale of the property : Boerum v. Schenck, 41 N.Y. 182. And upon a 
 disaffirmance of the sale the trustee is entitled to a reimbursement of his purchase- 
 money: Gunn 11. Brantley, 21 Ala. 633; Spindler j*. Atkinson, 3 Md. 409; Dorseyi/. 
 Dorsey, 3 Har. & J. (Md.) 410; Ward v. Smith, 3 Sandf Ch. (N.Y.) 592. And 
 since the trustee's purchase is merely voidable and not void, a bona fide purchaser 
 for value from him without notice of the facts can hold the property even against 
 the cestui que trust : Morrill v. Carr, 2 La. Ann. 807; Robbins v. Bates, 4 Cush. 
 (Mass.) 104; Blood v. Hayman, 13 Met. (Mass.) 231 ; White v. Iselin, 26 Minne. 
 487 : Booraem v. Wells, 19 N.J. Eq. 87 ; Gallatian v. Erwin, Hopkins (N.Y.) 48 ; 
 Cannon v. Jenkins,vi Dev. Eq. 422. Where an executor sold at auction many 
 lots of wild land, and to prevent a sacrifice employed an agent to bid upon them 
 generally, without singling out any particular lots as more valuable than the 
 others, and most of the lots were bid in for him, it was held that the heirs must 
 either affirm or disaffirm all his purchases together, and that they could not affirm 
 
 8 
 
INTRODUCTION. 5* 
 
 [5] of goods pledged for more than ioj. (ot), and under the 
 Innkeepers Act, 1878 («), must always be by auction. 
 
 Commercial Auctions. — It is obvious, too, that goods will 
 often be more rapidly or completely realized by an auction 
 
 (;«) 35 & 36 Vict. c. 93, s. 19 ; see have been assumed in R. v. Jones, i C. 
 
 post, p. 282. & J. 140, that under a writ of venditioni 
 
 («) Sale under Writ of Vendi- exponas issued under an extent the 
 
 tioni Exponas. — 41 & 42 Vict. c. 38, sheriff was bound to sell by auction ; 
 
 s. I ; see post, p. 284. It appears to but see note, ib., p. 142. 
 
 his purchase of some of the lots and disaffirm that of the others : Jennison v. 
 Hapgood, 10 Pick. Mass. 77. And after a valid sale of the trust property has 
 been made to a stranger the trustee is at full liberty to deal with that stranger; 
 the trustee may purchase from him for his own benefit : Stephen v. Beall, 22 Wal- 
 lace, 329; Shakeley v. Taylor, i Bond, 142; West v. Waddill, 33 Ark. 575; 
 Boehlert v. McBride, 48 Mo. 505; Wortman f. Skinner, 12 N.J. Eq. (i Beas.) 
 358; Jackson v. Brooks, 8 Wend. (N.Y.) 426; De Bevoise v. Sandford, i Hoff- 
 man (N.Y.) 192; Armor v. Cochrane, 65 Penn. St. 308. The cestui que trust 
 may likewise avoid a purchase of the trust property by the trustee at an auction 
 sale under a paramount incumbrance: Freeman v. Harwood, 49 Maine, 195; 
 Jewett V. Miller, 10 N.Y. (6 Selden) 402; Slade v. Van Vechten, 11 Paige (N.Y.) 
 21; Van Epps v. Van Epps, 9 id. 237. But a trustee may sometimes be permitted 
 by leave of the court to bid at his own sale : Froneberger v. Lewis, 79 Nor. Car. 
 426; Armor v. Cochrane, 56 Penn. St. 308 ; but in so doing he must act within 
 the strictest line of his responsibility, and must see to it that his character as a 
 bidder is not allowed to derogate from his duty as a trustee : Cadwaladers' Ap- 
 peal, 64 Penn. St. 293. And a purchase by an executor or administrator of the 
 estate of his decedent will not always be set aside, if the sale was not conducted 
 by himself, and was made for a full price and without fraud in fact : Dexter v. 
 Harris, 2 Mason C.C. 531 ; Price v. Winter, 15 Fla. 55. In North Carolina an 
 administrator may agree with third parties that they shall purchase property at 
 his sale on joint account with himself, unless it appears that the interests of the 
 estate are prejudiced by the arrangement : Clark v. Clark, 65 Nor. Car. 655. In Vir- 
 ginia an administrator selling real property under a will may himself become the 
 purchaser if the sale is fairly conducted and a fair price is paid : Toler v. Toler, 
 2 Patt. & H. (Va.) 71. In Alabama an administrator may purchase at his own 
 sale if it is fairly conducted, and he is personally interested in the estate : Frazer 
 V. Lee, 42 Ala. 25 ; but this is denied in South Carolina ; Ex parte Wiggins, 
 I Hill Eq. (So. Car.) 353; and in Maryland the duties of a trustee in this respect 
 are not to be relaxed merely because his trust is coupled with an interest : Bell v. 
 Webb, 2 Gill (Md.) 163. The court has treated a purchase at his own sale by 
 a personal representative who has advanced his own funds to pay the debts of the 
 deceased as an exercise of his right to retain for his reimbursement a specific 
 article of property at a fair valuation, in the case of Ely v. Horine, 5 Dana (Ky.) 
 398. But the purchase may be avoided if there is any appearance of unfairness 
 in the sale, especially if a fair price has not been paid : Dareus v. Crump, 6 B. 
 Mon. (Ky.) 363; Hudson v. Hudson, 5 Munf. (Va.) 180. A sale by the trustee 
 to his wife may be confirmed by the court so as to be valid against the cestui que 
 trust: Armstrong's Appeal, 68 Penn. St. 409; Dundas's Appeal, 64 Penn. St. 
 325. Nor can the trustee's purchase be avoided by one of the beneficiaries who 
 
 9 
 
*5 INTRODUCTION. 
 
 than in the ordinary course of business or by private bar- 
 gain. Accordingly, in the wholesale trades in timber, fish, 
 wool, skins and hides, auctions are employed as the normal 
 mode of sale ; and there are several classes of imports, nota- 
 bly indigo, tea and colonial produce, of which the greater 
 part is placed in the European market by this means. 
 
 Auction Duty Abolished. — The mode of sale in question 
 is of high antiquity and appears to be common to all civilized 
 communities {o). It is generally subject to special regula- 
 tions, the object of which is the protection of the public or 
 the levying of a tax.' In this country, a//v rata government 
 duty was formerly imposed upon auction-sales ; but in course 
 of time, owing to the number of exemptions to which it 
 became subject, it was found to work injustice by the unev- 
 enness of its incidence, and to entail an expense of collec- 
 
 (o) Among the Romans, it was em- Ca^^rtftr of the 5th of May, l88i : — "In 
 ployed in the earliest times for the sale March of each year the unfortunate 
 of spoils of war, and the erection of a paupers of Hancock County are collect- 
 spear as the signal of an auction (whence ed in front of the court-house in New 
 the expression sub hastd vendere) pre- Cumberland; an auctioneer mounts the 
 served the memory of its martial origin, block and knocks them off, one at a 
 In Egypt, under Mehemet Ali, the taxes, time, to the lowest, instead of — as used 
 which were paid in kind, were realized to be the practice with the slaves — -the 
 by auction. The following extract from highest, bidder. In other words, the 
 a Philadelphia newspaper, relating to man who bids to keep a pauper for a 
 the system of dealing with paupers ob- year for the lowest amount is the pur- 
 taining in Hancock County, West Vir- chaser." 
 ginia, is taken from the St. jfames' 
 
 has participated in it, or affirmed it, though it may be by the other beneficiaries : 
 Johns V. Norris, 27 N.J. Eq. 485; O'Dell v. Rogers, 44 Wise. 136. But the 
 trustee cannot himself take advantage of his trusteeship to avoid his purchase; 
 that is at the option of the cesliii que trust, who may hold him to his bargain : 
 Huff f. Earl, 3 Ind. 306; Collins v. HoUier, 13 La. Ann. 585; Parker v. Leathers, 
 2 Jones Eq. (Nor. Car.) 249 ; McGinn v. Shaeffer, 7 Watts (Penn.) 412 ; Deloach 
 I/. Youmans, 3 Rich. (So. Car.) 278; Dubose v. James, 1 McMull. Ch. (So. Car.) 
 55; McClure v. Miller, i Bailey Ch. (So. Car.) 107; Redd v. Jones, 30 Gratt. 
 (Va.) 123; Moore v. Hilton, 12 Leigh (Va.) i. A guardian who has in his 
 hands no funds of the ward may purchase for his own use lands of his ward sold 
 by a sheriff under a judgment against the ward's ancestor : Chorpenning's Ap- 
 peal, 32 Penn. St. 315. And a cestui que trust who purchases the trust estate at 
 a public sale will acquire the same title that a stranger would : State Bank v. 
 Macy, 4 Ind. 362.] 
 
 [' The auctioneer's liability for such a tax will not be affected by the fact that 
 he failed to make the returns of his sales, or to take out the license or give the 
 bond, which were required by the law: State v. Poulterer, 16 Calif. 514.] 
 
 10 
 
INTRODUCTION. 
 
 6* 
 
 tion disproportioned [6] to the revenue which it yielded (/) ; 
 and it was finally abolished by 8 & 9 Vict. c. 15, s. i. It is 
 still, however, necessary that any one acting as an auctioneer 
 should be provided with an excise licence. 
 
 (/) Twelfth Report of the Commis- 
 sioners of Excise Inquiry, and Parlia- 
 mentary Return, 24th of February, 1845. 
 In 1844, the last year of its collection, 
 the produce of the duty was ;^3o8,i62. 
 In 1841, whilst the total value of estates 
 
 and effects in the United Kingdom on 
 which the duty was charged was only 
 j<^8,720,058 gs. ^ti., the value of the prop- 
 erty on which exemption was claimed 
 was ;^36,5 11,409 IS. 
 
 II 
 
*7 THE auctioneer's LICENCE. [PART I. 
 
 [7] 
 CHAPTER I. 
 
 THE auctioneer's LICENCE. 
 
 Who may be Auctioneer. — Unless specially exempted, every 
 one who carries on the business of an auctioneer, or who 
 sells property, or offers property for sale, by auction, must 
 have an excise licence in that behalf. Subject to this restric- 
 tion, any person {a), of either sex, may become an auctioneer, 
 it being left to the public to decide upon the fitness of the 
 parties licensed. 
 
 The first thing, therefore, to be done by the intending 
 auctioneer is to take out an auctioneer's licence.^ 
 
 (a) The beneficed clergy may not quences : see Lewis v. Bright, 4 E. & 
 trade; but a disregard of this prohibi- B. 917; 24 L.J.Q.B. 191. 
 tion only entails ecclesiastical conse- 
 
 [' For statutes regulating the licenses of auctioneers in the different states, 
 see Postea, Appendix B. Municipal corporations also not infrequently require 
 licenses to be taken out by those who desire to carry on the business of auctioneers 
 therein, though it has been held that a municipal corporation cannot impose a tax 
 upon any occupation unless specially authorized to do so by the state : New Iberia 
 V. Migues, 32 La. Ann. 923; Plaquemine v. Roth, 29 La. Ann. 261 ; and that a 
 grant of power to a municipal corporation to regulate and license a business con- 
 fers no power to impose a tax upon such business : MUhlenbrinck v. Long Branch, 
 42 N.J. Law, 364; State v. Hoboken, 41 id. 71. But such ^ power may be dele- 
 gated to municipal corporations : Osborne v. Mobile, 44 Ala. 493 ; Carroll v. 
 Tuscaloosa, 12 Ala. 173; Kniper z/. Louisville, 7 Bush (Ky.) 599. In California 
 it is held that where a municipal corporation has by its charter the power to 
 license and regulate occupations, the question whether this includes the power to 
 tax them for purposes of revenue is to be determined by construction of the whole 
 charter: San Jose v. San Jose R.R. Co., 53 Calif. 475. In Iowa a town having 
 the power to regulate and license auction sales, may pass and enforce an ordi- 
 nance authorizing the mayor to fix the amount of the license-fee within a certain 
 sum: Decorah v. Dunstan, 38 Iowa, 96; but cannot require retail merchants to 
 pay a fixed tax upon the proceeds of a portion of their merchandize which they 
 employ an auctioneer to sell : Oskaloosa i/. TuUis, 25 Iowa, 440. Reasonable 
 regulations as to licenses and license-fees made by a municipal corporation upon 
 which such a power has been conferred will be upheld by the courts : Wright v. 
 Atlanta, 54 Ga. 645 ; Wiggins v. Chicago, 68 Ills. 372; Fretwell v. Troy, 18 Kan- 
 sas, 271; Deposit V. Pitts, 18 Hun (N.Y.) 475. And any municipality having 
 the power of assessing taxes and license-fees may enforce their collection by 
 appropriate remedies : Amite City v. Clements, 24 La. Ann. 27.] 
 
 12 
 
CHAP. I.] THE auctioneer's LICENCE. 8* 
 
 The act by which auctioneers' licences are now regulated 
 is 8 & 9 Vict. c. 1$ (d). This statute (c) repealed the excise 
 duty formerly levied upon the purchase-money at auction 
 sales (d), and all previous acts of excise relating to auctions 
 or to auctioneers, except so much of 6 Geo. IV. c. 8i, as it 
 did not repeal or alter (e). 
 
 Licence Necessary. — Its fourth section enacts that " every 
 person who exercises or carries on the trade or business of 
 an auctioneer, or who acts in such capacity at any sale or 
 roup (/), and every [8] person who sells, or offers for sale, 
 any goods or chattels, lands, tenements or hereditaments, or 
 any interest therein, at any sale or roup where any person 
 or persons become the purchaser of the same by competition 
 and being the highest bidder, either by being the single 
 bidder, or (by) increasing upon the biddings made by others, 
 or decreasing on sums named by the auctioneer, or person 
 acting as auctioneer, or other person, at such sale, or by 
 any other mode of sale by competition, shall, except as 
 hereinafter in this act mentioned i^g), be deemed to carry on 
 the trade or business of an auctioneer ^ and shall be required 
 to take out " an excise licence for that purpose ; " and every 
 such licence shall be renewed annually ten days at least 
 before the expiration thereof on the 5th of July in each and 
 every year ; and every auctioneer having had such a licence 
 who continues to carry on the trade or business of an auc- 
 
 (J)) SeeAppendix,/^/, pp. 386-390. {e) The parts of 6 Geo. IV. c. 8i, 
 
 {c) By s. I . which concern auctioneers will be found 
 
 {d) See ante, p. 5. The repeal of in the Appendix, post, pp. 383-386. 
 
 that duty did away with the necessity (J~) See ante, p. 2. 
 
 for the bonds which auctioneers formerly (g) Viz., in s. 5 : see infra, pp. 
 
 had to give : 6 Geo. IV. c. 81, s. 9; re- 10-12. 
 
 pealed : 36 & 37 Vict. c. 91. 
 
 [' One who sells his own goods at auction is to be deemed an auctioneer within 
 the meaning of such a statute, as well as one who sells the property of others : ' 
 Goshen v. Kern, 63 Ind. 468. A constable who sells goods at auction for the 
 pretended purpose of satisfying an execution, is liable under such a statute if he 
 has no such execution and no license to act as an auctioneer : Jordan v. Smith, 
 19 Pick. (Mass.) 287. But the mere employment by a shopheeper, for the pur- 
 pose of selling his own goods, of loud outcries and offers of the goods to all persons, 
 will not make his sale an auction sale, if he adheres to his fixed retail prices ; for 
 the essence of an auction sale, within such a statute, is the endeavor to increase the 
 price by exciting competition among the bidders : Crandall v. State, 28 Ohio St. 479.] 
 
 13 
 
*9 THE auctioneer's LICENCE. [PART I. 
 
 tioneer in the year next ensuing the expiration thereof and 
 omits to renew the same as aforesaid, and every person who 
 carries on the trade or business of an auctioneer as afore- 
 said without taking out such licence as by this act directed, 
 shall, except as hereinafter in this act mentioned {h), forfeit 
 ;^ioo; provided always that on every such licence," at what- 
 ever period of the year taken out, " the full duty of excise 
 by this act imposed shall be paid, any other act or acts to 
 the contrary notwithstanding." 
 
 By the second section an annual duty of £io is imposed 
 upon "every licence to be taken out by every person exer- 
 cising or carrying on the trade or business of an auctioneer 
 in any part of the United Kingdom." 
 
 The effect of these two sections, stated summarily, is as 
 [9] follows : subject to certain exceptions, every person offer- 
 ing property for sale by auction must, under a penalty of £ioo, 
 be provided with an auctioneer's licence, upon which a duty 
 of £io is payable, and which is only valid for a year, or part 
 of a year, ending on the Sth of July. 
 
 The owner of property advertised for sale, on a day to 
 which the sale had been adjourned, invited the intending 
 purchasers present to retire into an adjoining room, where 
 each of them was to set down two sums upon a slip of paper, 
 he whose slip should contain the highest sum to be the pur- 
 chaser, and at the lower sum named by him, if that should 
 exceed the highest named by any one else ; this was an offer 
 for sale by auction {i). 
 
 Scile not Vitiated by -want of Licence. — Although the pre- 
 amble of the act which first instituted auctioneers' licences (j) 
 recited that (in the opinion of the Commons) " it would be 
 for the advantage of the public that all persons using or 
 exercising the trade or business of an auctioneer should be 
 ' obliged to take out a licence for that purpose, specifying their 
 
 (/;) Il)id. the latter kind : Beny v. Gibbons, L.R. 
 
 (0 R. V. Taylor, McCle. 362; 13 15 Eq. 150; 42 L.J. Ch. 23I; but see 
 
 Price, 636; and see the various kinds Barlow v. Osborne, 27 L.J. Ch. 308; 
 
 of auctions- described ante, pp. 2 and 3. Waterhouse v. Wilkinson, i H. & M. 
 
 A sale by tender has been held not to 636. 
 
 be a sale by auction within the meaning {j) 17 Geo. IIL c. 50. 
 
 of an order of court directing a sale of 
 
 14 
 
CHAP. I.] THE auctioneer's LICENCE. 9* 
 
 names and places of abode respectively, and to grant " to the 
 Crown " a duty upon such licences," it is conceived that the 
 object of the legislature in requiring auctioneers to be licensed 
 is to recruit the revenue, and not to protect the public ^ ; and 
 that, consequently, not only would a sale by auction not be 
 vitiated by the auctioneer being unlicensed, but the auctioneer 
 would not be prevented by his want of a licence from recov- 
 ering his remuneration as well as his expenses (/<;). ^ 
 
 (i) Palk V. Force (12 Q.B. 666; Smith, 7 Man. & G. 457; 8 Sco. N.R. 
 
 17 L.J.Q.B. 299; 12 Jur. 797) being 250; 13 L.J.C.P. 159; 8 Jur. 711; 
 
 distinguishable. As to when and how Scarfe j;. Morgan, 4 M. &W. 270; i H. 
 
 far a statute is to be regarded as ren- & H. 292; Smith v. Lindo, 5 C.B.N.S. 
 
 dering a transaction illegal, see Taylor j;. 587; 27 L.J.C.P. 335; 4 Jur. N.S. 974; 
 
 Crowland Gas Co., 10 Ex. 293 ; 23 L.J. Benj. 427, 432; Poll. Con. 258, 262. 
 
 Ex. 254; 18 Jur. 913; 2 C.L.R. 1247; Quare, as to the effect of non-compli- 
 
 Fennell v. Ridler, 8 D. & R. 204; 4 B. ance with 8 & 9 Vict. c. 15, s. 7 (as to 
 
 & C. 406; Johnson v. Hudson, 1 1 East, exhibiting name and address during 
 
 180; Brown v. Duncan, 5 Man. & R. sale, see infra, p. 19); where note the 
 
 114; 10 B. & C. 93; Bailey v. Harris, words "so that all persons may easily 
 
 12 Q.B. 905; 18 L.J.Q.B. 115; 13 Jur. read the same" and the circumstances 
 
 341 ; Smith v. Mawhood, 14 M. & W. that there is a penalty for every offence. 
 452; 15 L.J. Ex. 149; Redmond v. 
 
 [' In many of the United States auctioneers are required to give bonds with 
 sureties for the performance of their duties as such. Such a bond is usually 
 regarded as available for the protection of his private customers as well as for the 
 security of the duties payable to the state: State v. Poulterer, l6 Calif. 514; St. 
 Louis Church v. Benneval, 13 La. Ann. 321 ; McMeehen v. Baltimore, 3 Har. & J. 
 (Md.) 534; Commissioners v. Holloway, 3 Hawks (Nor. Car.) 234; Davis v. 
 Commonwealth, 3 Watts (Penn.) 297; Lea v. Yard, 4 Dallas, 95; s.c, nom. Yard 
 V. Lea, 3 Yeates, 335; Dallas v. Chaloner, 3 Dallas, 500. The sureties upon such 
 a bond will be held strictly to the terms of their engagement : Daly v. Common- 
 wealth, 75 Penn. St. 331; Charleston v. Paterson, 2 Bailey (So. Car.) 165; but 
 their liability cannot be extended beyond the terms of the bond which creates 
 it : riorance v. Richardson, 2 La. Ann. 663. If an auctioneer sells propefty for 
 cash, and the owner accepts notes for the proceeds payable on time, this will 
 discharge the auctioneer's sureties from liability to the owner : Mouton v. Noble, 
 I La. Ann. 192. The remedy of the state for taxes upon auction sales is not 
 limited to the enforcement of such a bond: State v. Poulterer, 16 Calif. 514. 
 Such a bond will not be valid unless executed in the manner required by law : 
 Georgetown v. Baker, 2 Cranch C.C. 291.] 
 
 [' The illegal act of an auctioneer in selling or offering to sell property by 
 auction without being licensed, will not affect a conveyance to an innocent pur- 
 chaser without knowledge that the auctioneer had no license : Williston v. Morse, 
 10 Met. (Mass.) 17. Where an auctioneer who was licensed to sell in one county 
 only sold separately several lots of standing wood, some of which were in another 
 county, it was held that he could recover from the owner for his services in selling 
 those lots which were within his county and the auction duty which he had paid 
 on the whole of the sales: Robinson v. Green, 3 Met. (Mass.) 159. A private 
 
 15 
 
*IO-II THE auctioneer's LICENCE. [pART I. 
 
 [10] Exemptions from Licence. — The number of exemptions 
 has been considerably increased since the passing of 8 & 9 
 Vict. c. 15, partly by various acts of parliament, partly by 
 orders made from time to time by the boards of commission- 
 ers of excise and of inland revenue respectively (/) ; and at 
 the present time no auctioneer's licence is necessary in the 
 case of {m) : — 
 
 (i.) Sales under orders of the Chancery Division of the 
 High Court of Justice, by persons duly appointed 
 to effect such sales («) ; 
 
 (2.) Sales of goods taken in execution under County 
 Court process, made by County Court bailiffs duly 
 authorized to act as brokers for the purpose of such 
 sales {o) ; 
 
 (3.) Persons selling goods under the authority of 6 Geo. 
 IV. c. 48, or 7 Will. IV. & I Vict. c. 41, [11] acts 
 relating to the recovery of small debts in Scot- 
 land (/) ; 
 
 (4.) Sales, by bailiffs, of goods taken in execution under 
 decrees of civil bill courts in Ireland (q) ; 
 
 (5.) Any person selling goods under a distress for non- 
 payment of rent or tithes to a less amount than 
 ;f 20 {r) ;_ 
 
 (/) Under the authority, apparently, sales by the Chancery Division gener- 
 
 of 7 & 8 Geo. IV. c. 53, 3. 2, and 12 & 13 ally, see post, pp. 237 et seq. 
 Vict. c. I, s. 3. See note (jr) infra, {0) See 9 & 10 Vict. c. 95, s. 106; 
 
 p. 12. 12 & 13 Vict. c. loi, s. 10. As to sales 
 
 (;«) The exemptions mentioned in under process of the County Courts gen- 
 
 the t At are created by " Boards Orders," erally, see posl, pp. 250, 251. 
 except where the contrary is indicated (/) 8 & 9 Vict. c. 15, s. 5. 
 
 in the notes. {q) 14 & 15 Vict. c. 57,3. 146. Sec- 
 
 («) See 15 & 16 Vict. c. 80, ss. I, tion I of this act repealed 6 & 7 Will. 
 
 36; c. 87, s. 42. The power to have a IV. i;. 75, and 7 Will. IV. and i Vict, 
 
 sale of real estate made in chambers c. 43, sales under which were likewise 
 
 before the chief clerk has fallen into included among the exemptions com- 
 
 disuse : see Pemberton v. Barnes, L.R. prised in s. 5 of 8 & 9 Vict. c. 15. 
 13 Eq. 349; 41 L.J. Ch. 209. As to (?-) 8 & 9 Vict. c. 15,8.5. 
 
 sale of goods required to be sold at public auction will not invalidate a subsequent 
 auction sale thereof: Minturn v. Maine, 7 N.Y. 220; s.c, nam. Minturn v. Allen, 
 3 Sandford, 50. A sale required to be made by public auction may be adjourned by 
 one who is not licensed as an auctioneer : Hosmer v. Sargent, 8 Allen (Mass.) 97.] 
 
 16 
 
CHAP. I.] THE auctioneer's LICENCE. 12* 
 
 (6.) Any person selling fish, where first landed, upon the 
 
 sea-shore (s) ; 
 (7.) Sales "by ticket" of mineral ore; 
 (8.) The letting of lands or any interest therein ; ' 
 (9.) The letting of tolls to farm, by the trustees of the 
 tolls or their clerks ; 
 (10.) Officers of the customs conducting sales of seizures 
 under the direction of the commissioners of cus- 
 toms ; 
 (11.) Officers of excise selling goods seized for a breach of 
 
 the revenue laws ; 
 (12.) Officers of the ordnance conducting sales under the 
 
 authority of the surveyor-general of ordnance ; 
 (13.) Clerks in the naval and victualling departments of 
 the admiralty, selling public stores in the yards of 
 those departments by direction of the lords of the 
 admiralty ; 
 (14.) Non-commissioned officers and soldiers selling, un- 
 der the direction of the secretary of state for the 
 war department, the effects of officers and [12] sol- 
 diers dying in Her Majesty's service, or the effects 
 of deserters, where the proceeds are to be accounted 
 for to the public ; 
 (15.) Sales of property for the benefit of the Crown, by 
 receivers and deputy-receivers of wrecks appointed 
 under Part VIII. of the Merchant Shipping Act, 
 1854 (f), whether such officers be officers of cus- 
 toms or not, provided they are employed officiall}^ 
 
 The 5th section of the act of 8 & 9 Vict. c. 15 (zt), which 
 exempts persons selling goods under the authority of several 
 statutes (v), exempts also any person selling goods "under 
 authority of any other act or acts of parliament now in force " 
 — (the act received the royal assent on the 8th of May, 
 1845) — "in which the like exemption, as by the act speci- 
 
 W 33 & 34 Vict. c. 32, a. 5. (u) See Appendix, /oi/, p. 388. 
 
 (/) 17 & 18 Vict. c. 104. (y) See preceding page. 
 
 [' A statute imposing a duty on sales by auction does not extend to a letting 
 of real estate by auction: Sewall i>. Jones, 9 Pick. (Mass.) 412.] 
 
 17 
 
*I3 THE auctioneer's LICENCE. [PART I. 
 
 fied, is given to the proper officer of court executing the 
 process of such court to sell the effects seized by him by 
 auction without taking out or having any licence as an auc- 
 tioneer, provided the sum for which such process is enforced 
 is under ;^20." There does not, however, appear to be any 
 such act (zv). 
 
 Licence, by whom Granted. — The duty upon auctioneers' 
 licences being a duty of excise, the granting of the licences 
 and the collection of the duty are now, by the operation of 
 12 & 13 Vict. c. I, under the control of the commissioners of 
 inland revenue (x). By [13] section 16 of the act just men- 
 tioned the licences are to be granted and signed by such per- 
 son or persons as the commissioners appoint or authorize in 
 that behalf. Application for a licence should be made at an 
 inland revenue office, where the applicant will be furnished 
 with the necessary instructions and a notice paper specifying 
 the duties which he will have to pay. No particular form of 
 application need be used ; but, for the sake of convenience, 
 a form of application is given in Part II. of this book (j/). 
 
 As to Notice of Intention to Renew Licence. — Strictly speak- 
 ing, as has been seen (z), an auctioneer who, having taken 
 out a licence in one year, wishes to practise in the next is 
 bound to procure a new licence ten days before his current 
 one expires ; and in former editions of this work, published 
 since the date of 8 & 9 Vict. c. 15, twenty-one days' notice 
 of intended renewal was stated to be still necessary under 
 6 Geo. IV. c. 81, s. 16 (a). Upon that view, however, it would 
 seem that, as, in default of such notice, the new licence must 
 bear the date of the application for it (d), and as all auc- 
 tioneers' licences expire, on each 5th of July (c), an auc- 
 tioneer who should have once entered upon the twenty-one 
 
 {■w) It is perhaps due to an over- of stamps and taxes into one board of 
 
 sight of the legislature that the Summary commissioners of inland revenue. 
 Jurisdiction Act, 1879 (42 & 43 Vict. c. (y) P. zSy.post, Form i. The form 
 
 49), does not relieve any one selling by of a licence is also given on the same 
 
 auction under its 43rd section from the page. Form 2. 
 obligation to take out an auctioneer's (i) P. 8, supra. 
 
 licence. (a) See Appendix, /«/, p. 385. 
 
 {x) 12 & 13 Vict. u. I, s. 3. The {b) 6 Geo. IV. c. 81, s. 16. 
 
 1st section of the act consolidated the {c) Ibid, and 8 & 9 Vict. c. 15, a. 4. 
 
 boards of commissioners of excise and 
 
 18 
 
CHAP. I.J THE auctioneer's LICENCE. I4* 
 
 days without having given notice would for a year {d) be 
 unable to renew his licence comformably to the law, and so 
 would inevitably incur a forfeiture of ;^iOO {c) — ^a much 
 more serious result than that contemplated by the section 
 in question of the act of Geo. IV. In practice, as a rule, 
 no such notice is given, but the inland revenue authorities 
 [14] forward to the auctioneer an intimation that his licence 
 requires renewing, and the auctioneer applies and pays for 
 a new licence at any time on or about the 5th of July (/). 
 
 Licence Personal. — An auctioneer's licence can only be 
 used by the holder, that is, the person to whorn it is made 
 out ; and, as the holder cannot transfer it in his lifetime, so, 
 after his death, it will not be available in the hands of his 
 executors, or wife or child {g) ; and of two or more auc- 
 tioneers in partnership each, to sell, must have a separate 
 licence {h) ; though a distinct licence would not, perhaps, be 
 requisite in the case of an auctioneer's clerk acting, upon a 
 sale, under the immediate supervision of his master {i). On 
 the other hand, the holder of an auctioneer's licence may 
 pursue his calling upon as many different sets of premises 
 as he chooses {k) ; ^ and a licensed auctioneer may act as an 
 appraiser and as a house agent, without taking out an addi- 
 tional licence for either purpose, since the statutes which 
 impose a duty upon persons following those respective occu- 
 pations expressly exempt licensed auctioneers (/). 
 
 (fl') 8 & 9 Vict. c. 15, a. 4. Flower, 2 Camp. 288; Scott -'. Cousins, 
 
 {e) Ibid. L.R. 4C.P. 177. 
 
 (/} A form of notice of intention (/■) 6 Geo. IV. c. 8i, a. lo. But 
 
 to renew is to be found on p. 287, post, see infra, p. 16, as to hawker's licence. 
 
 Form 3. (/) See 46 Geo. III. c. 43, s. 7; 24 
 
 {£) Under 6 Geo. IV. c. 81, s. 21; & 25 Vict. c. 21, s. 13. For definitions 
 
 see Appendix, /M/, p. 385. of "appraiser" and "house agent," 
 
 (/«) 6 Geo. IV. c. 81, s. 7. see 46 Geo. III. c. 43, ss. 4, 6; 8 .& 9 
 
 (z) See Commonwealth v. Harnden, Vict. c. 76, s. I; and 24 & 25 Vict. «_. 
 
 19 Pickering, 482; cf. Hodgson v. 21, ss. 10, 13; Appendix, jzJoii', p. 392. 
 
 [' Under a statute requiring an auctioneer to register the place where he carries 
 on his business, he is liable to indictment if, in addition to his registered auction 
 store, he l<eeps a separate auction store for the sale of household furniture : Wood 
 V. Commonwealth, 12 Serg. & R. (Penn.) 213. A license to sell within the limits 
 ■ of a particular town or county gives no authority to sell outside of those limits : 
 Watevhouse v. Dorr, 4 Greenl. (Maine) 333; Robinson v. Green, 3 Met. (Mass.) 
 159-] 
 
 19 
 
*IS-l6 THE auctioneer's LICENCE. [PART I. 
 
 Additional Licence when Required. — The act of 8 & 9 Vict. 
 c. 15 {in), enabled licensed auctioneers, without any other 
 than their auctioneers' licences, to sell by auction any goods 
 for the sale of which [15] a special excise licence was required 
 by law ; but this privilege was found to lead to the excise 
 laws being largely evaded under the cloak of auctioneers' 
 licences, and it was eventually abolished by 27 & 28 Vict. c. 
 56, of which the r4th section enacts that " no licence taken 
 out by any person to exercise or carry on the trade or busi- 
 ness of an auctioneer shall authorize such person to deal in 
 or sell, either on his own account or for his own benefit, or 
 on account of, or for the benefit of, any other person, any 
 commodities for the dealing in or selling of which an excise 
 licence is required, except : — 
 
 " (i) Upon premises in respect of which the owner of such 
 commodities shall have taken out and shall have in 
 force at the time of the sale thereof the proper ex- 
 cise licence for the sale of such commodities ; pro- 
 vided 
 " (2) That any such licensed auctioneer may sell by auction 
 by sample in any town or place any such commodi- 
 ties as aforesaid, if the owner thereof shall be duly 
 licensed for the sale of such commodities in the 
 same town or place ; and provided also 
 "(3) That the commissioners of inland revenue may in 
 their discretion authorize any licensed auctioneer 
 to sell any such commodities by auction, where 
 they shall be satisfied that the said commodities 
 are the property of a private person and are not 
 sold for profit or by way of trade («) ; 
 [16] "And if any person shall sell by auction any such 
 commodities contrary to or otherwise than is allowed by this 
 section, he shall incur the penalties imposed upon persons 
 dealing in or selling such commodities without the excise 
 licences required by law " (p). 
 
 (.>"■) S. 6. fore the intended sale; cf. foot-note to 
 
 (n) The inland revenue regulations licence, p. zSy./fli/. 
 
 require that application for such author- (0) See Bell and Dwelly's Laws of 
 
 ily should be made at least a week be- Excise, passim. 
 
 20 
 
CHAP. I.] 
 
 THE AUCTIONEER S LICENCE. 
 
 1 6* 
 
 With the three important exceptions mentioned in the 
 section an auctioneer will, therefore, like any other person, 
 require a special excise licence to enable him to sell wine, 
 spirits, beer, porter, cider, perry, sweets, made wines, mead, 
 metheglin, methylated spirits, patent medicines (/), tobacco 
 or game {q). 
 
 It must not be supposed that either the first or the second 
 of the above exceptions will empower the auctioneer to sell 
 excisable goods in other quantities, or to other persons, than 
 might the licensed owner himself (r) ; or that in any case it 
 will be competent to dispense with the formalities which the 
 law requires to be observed in connection with the sale of 
 such goods (.5-). 
 
 Hawker's Licence. — An auctioneer may not go from place 
 to place carrying goods for sale, or exposing goods to sale, 
 unless he is licensed as a hawker (t) . M., of London, with- 
 
 (/) See 27 & 28 Vict, u. 56, ». 6. 
 
 (7) The excise duty on licences to 
 sellers of playing cards, not being mak- 
 ers thereof, was repealed by 33 & 34 
 Vict. c. 32, s. 3; that upon licences for 
 exercising or carrying on the trade of a 
 horse-dealer, by 37 & 38 Vict. c. 16, a. 
 1 1 ; that upon maltsters' licences, by 43 
 & 44 Vict. c. 20, 5. 3. By a " Board's 
 Order" of 21 July, 1877, auctioneers 
 may sell plate by auction, under any 
 circumstances, without special licence. 
 As to the sale of foreign goods in bond, 
 see 6 Geo. IV. c. 81, s. 12; 23 & 24 
 Vict. u. 113, b. 5; Appendi.x, posl, pp. 
 
 384, 392. 
 
 (r) Whether a particular sale of 
 excisable goods will be covered by the 
 owner's licence, the auctioneer will, as 
 a rule, be able to learn, either from the 
 owner or from the licence. 
 
 (j) £.g.t upon the removal of spir- 
 its; see 2 & 3 Will. IV. c. 16, s. 7; 43 
 & 44 Vict. c. 24, ss. 105 ei scq. 
 
 (0 See R. V. Turner, 4 B. & Aid. 
 510; Dean v. King, il. 517; Manson 
 V. Hope (1862), 2 B. & S. 498; 31 
 L.J.M.C. 191; 8 Jur. N.S. 971 ; 6 
 L.T.N.S. 326; 10 W.R. 664; decided 
 upon sections now repealed of 50 Geo. 
 
 III. u. 41; cf 24 & 25 Vict. (1861), 
 c. 21, s. 9 (Appendix, /oj.', p. 391), and 
 27 & 28 Vict. c. 18, Schedule B., sub tit. 
 " Licences to hawkers and pedlars." 
 No hawker's licence is required for the 
 sale of goods in a public mart, market 
 or fair, legally established : 50 Geo. III. 
 c. 41, s. 5; see Benjamin v. Andrews, 
 S C.B.N.S. 299; 27 L.J.M.C. 310; or 
 for the sale of goods wholesale : 52 
 Geo. III. c. loS, s. I ; or of coals by 
 retail in carts, &c. ; ii. a. 2; or of fish, 
 fruit, or victual ; 50 Geo. III. c. 41, s. 
 23; see R. V. Hodgkinson, 10 B. & C. 
 74; 5 Man. & R. 162. The duty upon 
 licences to foot-hawkers was repealed 
 by 33 & 34 Vict. c. 32, s. 3. Formerly 
 hawkers were prohibited from selling 
 goods by auction, either themselves cr 
 by an auctioneer, at any place in which 
 they were not householders, or which 
 was not their usual place of abode : 
 50 Geo. III. c. 41, s. 7; but this restric- 
 tion was removed by 29 & 30 Vict. c. 
 64, ». 12, "so far as regards the selling 
 by auction by any trading person duly 
 licensed as an auctioneer; " and see 
 now 35 & 36 Vict. c. 97. See also 
 Hodgson z/, riower, 2 Camp. 288; 
 Gregg V. Smith, L.R. 8 Q.B. 302; 42 
 
* 1 7-1 8 THE auctioneer's licence. [part I. 
 
 out a hawker's licence, [17] took a room at Hastings, and sold 
 there drapery goods, part of the stock of a company, which 
 were sent down to him directly from London ; he was held 
 to have infringed the law {u). But it is apprehended that, 
 where an auctioneer sells the goods of another, that will not 
 be an act of hawking in the auctioneer which would not be 
 one in the owner of the goods. 
 
 Auctioneers Acting as Brokers. — In London, many auc- 
 tioneers are also brokers. i Before any one can lawfully act 
 as a broker in the city of London, he must, under a'penalty 
 of ;£ioo, have been formally admitted as one by the court 
 of mayor and aldermen (v). But [18] he will not incur the 
 penalty by merely selling by auction (w).^ 
 
 Licences to be promptly Produced for Inspection. — The 
 holder of a licence should be constantly ready to produce it to 
 the proper authorities. A person licensed to carry on a busi- 
 ness or to sell goods is liable to a penalty of ;!^20, if he does 
 not produce and deliver his licence to an officer of excise de- 
 
 L.J.M.C. 121; Howard v. Lupton, L.R. city chamberlain upon admission, and a 
 
 ID Q.B. 598. As to hawlicrs generally, like sum annually: 6 Anne, c. 68; 57 
 
 see 50 Geo. III. c. 41; 52 Geo. III. c. Geo. III. c. Ix. 
 
 loS; 23 & 2+ Vict. c. Ill; 24 & 25 {w) Wilkes v. Ellis, 2 H. BI. 555. 
 "Vict. c. 21; 27 & 28 Vict. cc. 18, 56; The difierence between an auctioneer 
 29 & 30 Vict. c. 64; 33 & 34 Vict. c. and a broker is twofold: an auctioneer 
 32; 34 (& 35 Vict. c. 96. sells at public auction, a broker by pri- 
 (11) yisjiso-n v.'Ho^t, ul'i supra. vate bargain; and an auctioneer sells 
 {v) See 6 Anne, c. 68 (c. 16 in only, a broker both buys and sells: see 
 Ruffhead) ; 57 Geo. III. c. Ix.; ^t, & Story, Ag. § 27. As to the difference 
 34 Vict. c. 60; see also Cope v. Row- between brokers and factors, see Bar- 
 lands, 2 -M. & W. 149; Milford z-. ing v. Corrie, 2 B. & Aid. 137; Sm. 
 Hughes, 16 M. & W. 174; Pidgeon v. Merc. Law, 106, 107; as to brokers 
 Burslem, 3 Ex. 465; 18 L.J. Ex. 193; and factors generally: 2 St. Com. 76 
 Smith V. Lindo, 5 C.B.X.S. 5S7; 27 et seq. ; MaccuUoch's Commercial Dic- 
 L.J.C.P. 335; Scott V. North, L.R. 2 tionary, 204 et scq., 601 et seq.; Russ. 
 C.P. 270; Scott V. Cousins, L.R. 4 C.P. Merc. Ag. passim. 
 177. A sum of £<) is payable to the 
 
 \} A licensed auctioneer in Philadelphia who advances money on goods, and 
 charges a commission on such advances, must also take out a pawnbroker's li- 
 cense : Hunt V. Philadelphia, 35 Penn. St. 277.] 
 
 ['•' Requirements that before any person shall sell merchandise at auction he 
 shall take out a license, and that any person desiring to carry on the calling of 
 an auctioneer shall take out a license, do not cover the same matter, but are in- 
 dependent of each other. The former covers the case of an owner of goods who 
 desires to have them sold at auction; the latter regulates the business of selling 
 the property of others by auction : Fretwell v. Troy, 18 Kansas, 271.] 
 
 22 
 
CHAP. I.] THE auctioneer's LICENCE. I9* 
 
 manding it, within a reasonable time after such demand lias 
 been made (x) ; and if any person acting as an auctioneer, 
 and required to take out a licence as a person carrying on the 
 business of an auctioneer, does not, at the time of a sale by 
 auction, on demand by an officer of excise or customs, or any 
 officer of stamps and taxes, produce and show to such officer a 
 proper licence to him granted and then in force, or does not 
 immediately deposit with such officer the sum of £io, he 
 may be arrested and detained by an officer of the peace (j), 
 conveyed before a magistrate and committed to gaol for any 
 time not exceeding one calendar month ; and such imprison- 
 ment or deposit will not prejudice or affect any proceedings 
 for the recovery of the penalty for acting as an auctioneer 
 without a licence ; but if a person who has made such a de- 
 posit produces, within a week from the date of the sale, to 
 the officer with whom he deposited the money a proper auc- 
 tioneer's licence to him granted and [19] in force at the time 
 of the sale, the money is to be immediately returned to 
 him (z). 
 
 As to Putting up Name and Occupation. — An auctioneer is 
 not obliged, when licensed, to put up his name, with " licensed 
 auctioneer" after it, over his door, as he would have to do, 
 if he were a licensed person required by the excise laws to 
 make entry of his premises (a) ; but he is forbidden, under a 
 penalty of ;£^20, to have up on his premises, at any time when 
 he does not actually hold an auctioneer's licence, any words 
 or letters importing, either that he is licensed as an auc- 
 tioneer, or even that he is an auctioneer {d)J 
 
 Board to be Exhibited during Sale. — The auctioneer's rela- 
 tions to the revenue are not limited to questions of licence. 
 
 (x) 6 Geo. IV. c. 8i, s. 28. (z) 8 & 9 Vict. c. 15, s. 8. For 
 
 (;j/) It "will not escape notice that, form of warrant of commitment in such 
 
 although the person to demand produc- case, see Form 4, p. 288, pos^. 
 
 tion of the licence is a revenue officer, (a) 6 Geo. IV. c. 81, s. 21;. 
 
 the arrest must be made by an officer {f) Ibid. 
 
 of the peace. 
 
 \} In an action against one for selling as a licensed auctioneer goods at auction 
 in violation of the statutory conditions of his license, he is not estopped by the 
 fact that he undertoolc to act as an auctioneer from showing that he was not regu- 
 larly licensed, and could therefore be made liable only for selling without any 
 license : Clark v. Cushman, 5 Mass. 505.] 
 
 23 
 
'19 
 
 THE AUCTIONEER S LICENCE. 
 
 [part I. 
 
 He will run the risk of being mulcted in yet another penalty 
 of ;£20, if he does not, during the whole time of holding a 
 sale by auction, exhibit his full Christian name, surname 
 and residence in large letters on a ticket or board affixed 
 or suspended in a conspicuous part of the room or place 
 where the sale is held (c). 
 
 (c) 8 & 9 Vict. c. 15, s. 7. As to 
 the recovery of penalties, and the col- 
 lection and management of excise duties 
 generally, see 7 & 8 Geo. IV. c. 53; 
 4 & 5 Will. IV. K.. 51; 4 Vict. c. 20; 
 II & 12 Vict. cc. 43, 121; 15 & 16 Vict, 
 c. 61; iS & 19 Vict. c. 78; 23 & 24 
 Vict. c. 113; 26 Vict. c. 7; 26 & 27 
 Vict. c. 33; 28 & 29 Vict. cc. 96, 104; 
 31 & 32 Vict. c. 124; 42 & 43 Vict. c. 
 49; 43 & 44 Vict. cc. 19, 20, 24; R. V. 
 Commissioners of Excise, 2 T.R. 381 
 
 {viandamus) ; R. v. Turner, 5 M. & S. 
 206 (burden of proof of having licence; 
 cf. Paley on Convictions, 6th ed., 129, 
 and the cases cited ar;^tit'ndo in Tole- 
 man v. Portbury, L.R. 5 Q.B. 291); 
 R. z'. Beadle, 7 E.&B. 492; 26 L.J.M.C. 
 Ill (costs of appeal). As to mitigation 
 of penalties : 7 & 8 Geo. IV. c. 53, o. 
 78 ; 22 Vict. c. 32 ; rewards to infor- 
 mers : 6 Geo. IV. c. 81, s. 29; 7 & 8 
 Geo. IV. c. 53, b. 103; 31 & 32 VicL 
 u. 124, ss. I, 2. 
 
 24 
 
CHAP. II.] auctioneer's AGENCY. 20* 
 
 [20] 
 CHAPTER II. 
 
 THE auctioneer's AGENCY IN GENERAL, AND PARTICULARLY 
 HIS AUTHORITY TO SELL. 
 
 Auctioneer Generally an Agent. — An auctioneer may, it 
 seems, sell his own property' by auction without disclosing 
 that he is the owner {a) ; but generally he acts as agent for 
 another. 
 
 When so employed in his professional capacity, he is 
 primarily, and until the fall of the hammer exclusively, the 
 agent of the vendor ' ; but upon the descent of the hammer 
 he becomes the agent of the highest bidder also, to write 
 down the name of the latter as purchaser, and his memo- 
 randum of the transaction will bind both parties, as being a 
 note in writing sufficiently signed within the Statute of 
 Frauds {b). 
 
 («) Flint w. Woodin, 9 Hare, 618; 43 LJ.Q.B. 52; Story, Sal. § 79; cf. 
 
 l6Jur. 719; Sugd. 44; Dart, 177. An Wood v. Midgley, 2 Sm. & G. 315. 
 
 auctioneer trustee in bankruptcy cannot, [Posica, Ch. VIII. : McComb v. Wright, 
 
 nor can his partner, act as auctioneer in 4 Johns. Ch. (N.Y.) 659; Adams v. 
 
 the sale of the bankrupt's estate without McMillan, 7 Porter (Ala.) 73; White 
 
 the consent of the committee of inspec- a. Crew, 16 Ga. 416; Burke v. Plaley, 
 
 tion: G.R. 1870, r. 119. 2 Gilman (Ills.) 614; Hart v. Woods, 
 
 {b) Simon I". Motivos, 3 Burr. 1921; 7 Blackf. (Ind.) 568; Linn Boyd To- 
 
 I Bl. R. 599; Hinde v. Whitehouse, bacco Warehouse Co. Z'. Terrill, 13 Bush 
 
 7 East, 558; 3 Smith, 528; Buckmaster (Ky.) 463; Bent v. Cobb, 9 Gray 
 
 V. Harrop, 13 Ves. 472; Emmerson v. (Mass.) 397; Morton v. Dean, 13 Met. 
 
 Heelis, 2 Taunt. 38; White z*. Proctor, (Mass.) 388; Cleaves i/. Foss, 4 Greenl. 
 
 4 Taunt. 209; Kemeys v. Proctor, 3 V. (Me.) i ; Pugh v. Chesseldine, n Ohio, 
 
 & B. 57; I J. & W. 350; Farebrother 109; Gordon v. Sims, 2 JlcCord Ch. 
 
 V. Simmons, 5 B. & Aid. 333; Bird v. (So. Car.) 151,164; Anderson z*. Chick, 
 
 Boulter, 4 B. & Ad. 443; i N. & M. I Bailey Eq. (So. Car.) 118; Brent v. 
 
 313; Eden v. Blake, 13 M. & W. 615, Green, 6 Leigh (Va.) 16; Harvey v. 
 
 619; Peirce J/. Corf, L.R. 9 Q.B. 214; Stevens, 43 Vt. 653 ; Clarkson ». Noble, 
 
 [' The sheriff at an execution sale is not the agent of the plaintiff in the execu- 
 tion; and that plaintiff is not responsible for the sheriff's misrepresentations, unless 
 the sheriff was acting under the plaintiff's instruction : Weidler v. Farmers' Bank, 
 n Serg. & R. (Penn.) 134. But the sheriff is so far the agent of the judgment- 
 debtor that he cannot, under the execution, sell and convey the debtor's property 
 
 25 
 
*2i auctioneer's agency. [part I. 
 
 No written authority is necessary to enable him to per- 
 form any act within the scope of his agency (<:). 
 
 [21] Implied Authority. — Mere implication will suffice, with- 
 out express words, to invest an auctioneer with authority (d).' 
 Where A., without objection, suffered his goods to be sold 
 by an officer at public auction to satisfy an execution against 
 a third person in whose possession they were at the time, 
 such conduct was held, in favour of the purchaser, to justify 
 the conclusion that A. had authorized the sale (e) ; and it is 
 said that, if the owner of goods send them to an auction- 
 room, he will be bound by a sale to a do^id fide purchaser, 
 because an authority to sell will be presumed against him (_/"). 
 
 2 U.C.Q.B. 361.] " He is an agent for ij. Richardson, 2 La. Ann. 663 ; Cronan 
 
 each party in different things, but not v. McDonogh, 12 La. Ann. 269.] 
 in the same thing. When he prescribes (^) Smith v. East India Co., 16 
 
 the rules of bidding and the terms of Sim. 76 ; Pike v. Wilson, 1 Jur. N.S. 
 
 the sale, he is the agent for the seller ; 59, where an authority to sell given to 
 
 but when he puts down the name of the an auctioneer was held under the cir- 
 
 buyer, he is agent for him only " — per cumstances to justify n. sale by auction ; 
 
 Heath, J., in WiUiams v. Millington,' I Pole t'. Leask, 28 Beav. 562; 33 L.J. 
 
 H. Bl. 81, 85. [The memorandum Ch. 155; Dart, 184. 
 made by an auctioneer is looked upon {e) Pickard v. Sears, 6 A. & E. 469; 
 
 as a contract of sale made between the 2 N. & P. 488. See Story, Ag. § 91. 
 vendor and the vendee by the auctioneer (/) Chit. Con. 190. [Said Lord 
 
 as their mutual agent, whose agency Ellenborough, in Pickering v. Busk, 15 
 
 closes after the sale is made : Craig v. East, 38, 43, " If the owner of a horse 
 
 Godfrey, I Calif. 415; Ijams v. Hoff- send it to a repository for sale, can it be 
 
 man, I Md. 423 ; Goelet v. Cowdrey, implied that he sent it thither for any 
 
 I Duer (N.Y.) 132.] other purpose than that of sale ? Or if 
 
 {c) See Rucker v. Cammeyer, I one sends goods to an auction-room, 
 
 Esp. 105; Coles V. Trecothick, 9 Ves. can it be supposed that he sent them 
 
 234, 250; I Smith, 233; Mortlock i. thither merely for safe custody? "] An 
 
 Buller, 10 Ves. 292, 311; Chapman v. estate agent instructed as to price has 
 
 Partridge, 5 Esp. 256. [For evidence no implied authority to sign an open 
 
 of the appointment of an auctioneer contract on behalf of his principal: 
 
 under the law of Louisiana, see Florance Hamer r. Sharp, L.R. 19 Eq. loS; 44 
 
 L.J. Ch. 53; Leake, 523. 
 
 to any one to whom the debtor himself could not have sold and conveyed it : 
 Stetson V. O'Sullivan, 8 Allen (Mass.) 321; for the purchaser takes his title 
 directly from the judgment-debtor, as whose agent under authority of law the 
 sheriff sells and conveys: McKnight v. Gordon, 13 Rich. Eq. (So. Car.) 222.] 
 
 [' Where the owner of a slave took her to an auctioneer in the evening, and 
 told him to sell her for what she would bring, and the auctioneer could not do so, 
 as his sales were over for the day, but told the owner to bring her the next morn- 
 ing, and he would sell her then, and the slave came in the morning according to 
 the previous understanding, and told the auctioneer that she had come to be sold, 
 it was held that this was a sufficient authority to the auctioneer to sell her, and 
 
 26 
 
CHAP. II. 
 
 AUCTIONEER S AGENCY. 
 
 22" 
 
 Constructive Authority. — A want of original authority may 
 be supplied by the person whose authority was assumed 
 subsequently ratifying the unauthorized act {g). Where A., 
 an auctioneer, entered into and signed an agreement as agent 
 of B., and B. shortly afterwards signed it with the words : 
 " I hereby sanction this and approve of A.'s having signed 
 it on my behalf," it was held that A. was not personally 
 liable (/i). Simple acquiescence, with knowledge of the fact, 
 but without any overt [22] act of adoption, may raise a pre- 
 sumption of assent and make the contract binding on the 
 
 (g) Kinnitz v. Surry, Paley, P. & A. 
 171; Cooper 7/. Smith, 15 East, 103; 
 Soames v. Spencer, I D. & R. 32 ; Mac- 
 lean V. Dunn, 4 Bing. 722; I Moo. & 
 P. 761 ; Gosbell v. Archer, 2 A. & E. 
 507; 4N. &M. 485; I H. & W. 31; 
 London & Birmingham Ry. Co. v. Win- 
 ter, Cr. & Ph. 57; De Beil v. Thomp- 
 son, 3 Beav. 469; Foster &. Bates, 12 
 M. & W. 226; I D. & L. 400; 13 L.J. 
 Ex. 88; 7 Jur. 1093; Wilson v. Tum- 
 mon, 6 Man.,& G. 236; 6 Sco. N.R. 
 894 ; I D. & L. 513 ; 12 L.J.C.P. 
 306; Blaclcwood v. Borrowes, 4 Dru. 
 & War. 441, 472 ; Lealie, 276, 468. 
 [Taking the benefit of an agent's act, 
 with knowledge of the circumstance, is 
 evidence of a ratification thereof ; Girard 
 V. Hirsch, 6 La. Ann. 651, 652; Coleman 
 z/. Devvees, 3 id, 698; Sittig v, Morgan, 5 
 id. 574; Headen v. Outre, 2 id. 142; 
 Fisher v. Attleborough, 4 Cush. (Mass.) 
 494. But no ratification by the princi- 
 pal of an act done by an agent without 
 authority will be binding upon the prin- 
 cipal if he has made it in ignorance of 
 an essential fact : Owings v. Hull, 9 
 Peters, 607; Bosseau v. O'Brien, 4 Bis- 
 sell, 395; Snow v. Grace, 29 Ark. 131 ; 
 Miller v. Board of Education, 44 Calif. 
 166; Billings V. Morrow, 7 id. 171; 
 Union Gold Mining Co. v. Rocky 
 Mountain National Bank, 2 Col. Ter. 
 565; Lester v. Kinney, 37 Conn. 9; 
 Mapp v. Phillips, 32 Ga. 72; Turner 
 V. Wilcox, 54 Ga. 593; Reynolds v. 
 
 that the purchaser at his sale took a good title against the owner : Morgan v. 
 Darragh, 39 Texas, 171.] 
 
 27 
 
 Ferree, 86 Ills. 570; Kerr v. Sharp, 
 83 Ills. 199; Manning v. Gasharie, 27 
 Ind. 399; Tidrick v. Rice, 13 Iowa, 
 214; Owensboro' Bank a. Western 
 Bank, 13 Bush (Ky.) 526; Delaney v. 
 Levi, 19 La. Ann. 251; Eannon v. 
 Warfield, 42 Md. 22; Adams Express 
 Co. V. Trego, 35 Md. 47; Thacher v. 
 Pray, 113 Mass. 291 ; Dickinson v. 
 Conway, 12 Allen (Mass.) 487, 492; 
 Mclntyre I-. Parle, 11 Gray (Mass.) 102; 
 Adams v. Bourne, 9 Gray (Mass.) lOO; 
 Humphrey v. Havens, 12 Minne. 298; 
 Thompson v. Craig, 16 Abbott Pr. N.S. 
 (N.Y.) 29 ; Pittsburg R.R. Co. v. Gaz- 
 zam, 32 Penn. St. 340; Williams v. 
 Storm, 6 Coldw. (Tenn. ) 203 ; Com- 
 mercial Bank z/. Jones, 18 Texas, 81 1; 
 jEtna Ins. Co. v. N.W. Iron Co., 21 
 Wise. 458; Spooner v. Thompson, 48 
 Vt. 259; Meehan v. Forrester, 52 N.Y. 
 277. But a subsequent ratification of 
 an unauthorized act will not be allowed 
 to relate back so as to prejudice a third 
 person who has acquired an intervening 
 right: Baird z^.Williams, 19 Pick. (Mass.) 
 381; Sturtevant z/. Robinson, 18 Pick. 
 (Mass.) 175. Nor is it material whether 
 the principal's ignorance of the facts 
 arose from his own want of inquiry and 
 neglect to ascertain the circumstances, 
 or from other causes : Coombs v. Scott, 
 12 Allen (Mass.) 493-] 
 
 (/i) Spittle V. Lavender, 2 B. & B. 
 452; 5 Moore, C.P. 270. 
 
'22 
 
 AUTHORITY TO SELL 
 
 [part I. 
 
 alleged principal (i). Nor is it necessary that the principal 
 should have been competent to enter into the agreement at 
 the time when it was made, if his title, when he ratifies the 
 agreement, relates back to that time ; for instance, an admin- 
 istrator may adopt a contract entered into before the grant 
 of letters of administration (j). But a contract entered into 
 by A. expressly as agent for B. cannot be adopted by C. (k). 
 The Authority to Sell should be in 'Wi-iting. — It is, however, 
 very desirable that the auctioneer's authority to sell should 
 be in writing (/) ; and if the principal be a corporation, then 
 it should be under the corporate seal (w). Where there is 
 merely a parol authority, it will frequently be difficult to 
 prove the existence and extent of it («) ; and this considera- 
 tion applies equally to the case of the auctioneer being 
 employed as agent to purchase the property (o). The terms 
 
 (0 Bigg V. Strong, 3 Sm. & G. 592; 
 4 Jul-. N.S. 108, 983. [Whitehead .'. 
 Wells, 29 Ark. 99; Dunn v. Hartford 
 Horse R.R. Co., 43 Conn. 434; Perry i^. 
 Mulligan, 58 Ga. 479; Ogden v. Mar- 
 chand, 29 La. Ann. 61 ; Francis v. Kei- 
 ber, 85 Ills. 190 ; Aurora Agricultural 
 Society z'. Paddock, 80 Ills. 263; Tay- 
 lor v. Hopkins, 40 Ills. 442 ; Eadie i . 
 Ashbaugh, 44 Iowa, 519; Chamberlain 
 7'. Collinson,45 Iowa, 429; Ely 2/. James, 
 123 Mass. 36; iladdux T'. Bevan, 39 Md. 
 485 ; Rich V. State Bank, 7 Nebraska, 
 201 ; Fowler ;>. Gold Exchange Bank, 
 67 N.Y. 138; National Life Ins. Co. J. 
 Minch, 5 Thomp. & C. (N.V.) 545; 
 State V. Smith, 48 Vt. 266. But this 
 acquiescence must ha\'e been with full 
 knowledge of the facts : Taymouth v. 
 Koehler, 35 Mich. 22; Meyer v. Bald- 
 win, 52 i^Iiss, 263; vSpooner <:'. Thomp- 
 son, 48 Vt. 259. And the acquiescence 
 must be by those who are sought to be 
 charged ; thus the use of a bridge by 
 the people of a town cannot be con- 
 strued as an acceptance of the work liy 
 the municipal corporation ; Taymouth 
 7'. Koehler, 35 Mich. 22.] 
 
 (/) Foster v. Bates, 12 M. & W. 
 226; I D. & L. 400; 13 L.J. Ex. 38; 
 7 Jur. 1093; Hood -i'. Lord Barrington, 
 L.R. 6 Eq. 21S. 
 
 (/•) Wilson z'. Tummon, 6 !Man. & G. 
 236; 6 Sco. N.R. 894; I D. & L. 513; 
 12 L.J.C.P. 306; Dart, 1S8. 
 
 (/) See forms of authority, post, p. 
 290, Forms I, 2. See also form of power 
 of attorney to sell an estate, ii>ii/.f 
 Form 3. 
 
 (;« ) 2\Iayor of Kidderminster v. 
 Plardwick, L.R. 9 Ex. 13; 43 L.J. 
 Ex. 9. [.V corporate seal would not be 
 necessary in this country : Barnes v. Dis- 
 trict of Columbia, 91 U.S. 540; Bank 
 of Columbia v. Patterson, 7 Cranch, 299; 
 Fleckner ;-. Bank of United States, 8 
 Wheatun, 33S; Baltimore zj. Reynolds, 
 20 Md. 1, 14; School District I'. /Etna Ins. 
 Co., 62 Maine, 330 ; Cutler v. Ashland, 
 121 Mass. 588; Mott z'. HickS; I Cow. 
 (N.Y.) 513; Kartright ;'. Buffalo Bank, 
 20 Wend. (N.Y.) 91 ; Attorney-General 
 z'. Life and Fire Ins. Co., 9 Paige (N.Y.) 
 470; Missouri River R.R. Co. v. Miami 
 County, 12 Kansas, 4S2 ; Smiley v. 
 Mayor, 6 Heisk. (Tenn.) 604; South- 
 gate I'. Atlantic & Pacific R.R. Co., 
 61 Mo. 89; Kiley v. Forsee, 57 JIo. 
 390.] 
 
 (k) Sugd. 145. 
 
 (0) The seller's agent cannot act as 
 agent for the buyer, unless expressly au- 
 thorized by the latter : Durrell z/. Evans, 
 I 11. & C. 174; 31 LJ- Ex. 337; 7 
 
CHAP. ir. 
 
 AND AGENCY GENERALLY. 
 
 upon which the sale is to be conducted should be distinctly 
 arranged, especially if there be any intention of restricting 
 the sale, or of buying in the property unless it produces a 
 certain amount (/). If a [23] principal gives an order to an 
 agent in terms fairly susceptible of two different meanings, 
 and the agent bond fide adopts one of such meanings and 
 acts upon it, the principal cannot repudiate the act of the 
 agent as unauthorized because he had meant the order to be 
 read in the other sense (g) ; and it would require a strong 
 case to impeach a sale upon the ground that the seller did 
 not intend his estate to be sold under a price greater than 
 the amount realized (r). 
 
 The consent of the highest bidder to be bound by the auc- 
 tioneer's entry is ordinarily implied by his bidding aloud (s) ; 
 but a private arrangement between seller and buyer as to the 
 mode of payment supersedes the authority of the auctioneer 
 to bind the buyer in that respect by signing for him (/). 
 
 L.T.N.S. 97 ; lo W.R. 665 ; 7 Jiir. N.S. 
 585; 9 Jur. N.S. 104; Murphy -'. Boese, 
 L.R. 10 Ex. 126; cf. Graham 7'. Musson, 
 7 Sco. 769 ; 5 Bing. N.C. 603 ; Graham 
 V. Fretwell, 4 Sco. N.R. 25 ; 3 :\Ian. & 
 G. 368. 
 
 (/) See form of letter to vendor for 
 instructions as to conduct of sale, post, 
 p. 291, Form 4. 
 
 (17) Ireland v. Livingston, L.R. 5 
 H.L. 395; 36 L.J.Q.B. 50. [National 
 Bank v. Merchants' Bank, 91 U.S. 92, 
 104. Factors who receive from their 
 principal obscure or contradictory in- 
 structions may exercise their own honest 
 discretion in the matter without thei'eby 
 putting themselves under any liability to 
 their principal: Bessent v. Harris, 63 
 Nor. Car. 542. The agent will not be 
 responsible for a mere error in judg- 
 ment : Shelton v. Merchants' Despatch 
 Co., 59 N.Y. 258 ; Long v. Pool, 68 Nor. 
 Car. 479. See also McDermid v. Cot- 
 ton, 2 Ills. App. 297 ; Lathrop v. Harlow, 
 23 Mo. 209, 213; Gordon v. Buchanan, 
 5 Yerger (Tenn.) 71.] 
 
 {r) Sugd. 44, referring to Pike i/. 
 Wilson, I Jur. N.S. 59. Yet where a 
 vendor made a bond fide mistake as to 
 
 the authority which he had given to 
 the auctioneer, and the property was 
 knocked down to the purchaser for a 
 less sum than the vendor considered 
 that he had authorized the auctioneer to 
 sell at, the Court refused to decree spe- 
 cific performance at the instance of the 
 purchaser : Day v. \Vells, 30 Beav. 220; 
 7 Jur. N.S. 1004; cf. Mason v. Armitage, 
 13 Ves. 25. \^t& postea, p. 25, n.d.~\ 
 
 (j) Emmerson v. Ileelis, 2 Taunt. 
 38; White V. Proctor, 4 Taunt. 209. 
 [Adams v. McMillan, 7 Porter(Ala.) 73; 
 Burk -Li. Haley, 2 Gilman (Ills.) 614 ; 
 Hart V. Woods, 7 Blackf. (Ind.) 56S ; 
 Johnson v. Buck, 35 N.J. Law, 338 ; 
 McComb V. Wright, 4 Johns. Ch. (N.Y.) 
 659; O'Donnell v. Leman, 43 Maine, 
 1 58, 160; Pike V. Balch, 38 l\Iaine, 302, 
 311; Morton v. Dean, 13 Met. (Mass.) 
 385; Pugh z'. Chesseldine, II Ohio, 109; 
 Macon Episcopal Church v. Wiley, 2 Flill 
 Ch. (So. Car.) 584; s.c, Riley Ch. 156. 
 But until the fall of the hammer the 
 auctioneer does not become the agent 
 for this purpose of the purchaser : War- 
 lew V. Harrison, I Ellis & Ellis, 295.] 
 
 (/) Bartlett v. Purnell, 4 A. & E. 
 792; 6 N. fi: M. 299; -^ H. & W. 19; 
 
 29 
 
* 
 
 34 AUTHORITY TO SELL [PART I. 
 
 On sales of estates the auctioneer's agency frequently 
 extends no further than conducting the sale under the direc- 
 tion of a solicitor. On sales of goods the business is com- 
 monly entrusted wholly to the auctioneer. 
 
 [24] His Agency a General Agency. — The auctioneer's agency 
 for the seller is a general agency («^) ; and consequently — 
 subject, as between him and his principal, to his special in- 
 structions, ^ and, as regards third persons, to their having 
 notice of his special instructions — whatever acts are usually 
 done by auctioneers, whatever rights are usually exercised by 
 them, and whatever duties are usually imposed upon them, 
 all such acts, rights and duties are deemed incidents of his 
 authority to sell (v). Most of such acts, rights and duties 
 have been so often brought to the notice of courts of justice 
 that they are now judicially recognized (w). Where this is 
 not the case, the fact of their being usual will have to be es- 
 tablished by evidence. - 
 
 Grice v. Kenrick, L.R. 5 Q.B. 340; 39 -. Baltimore, 3 Harr. & J. (Md.) 534.] 
 L.J.Q.B. 177; 22 L.T.N. S. 743; 18 (u) Howard v. Braithwaite, i Ves. 
 
 W.R. 1 155; Leake, 277. Upon a sub- & B. 202, 210; Leake, 522. [But he 
 sequent sale by private contract, though cannot bind the seller by Ijidding in the 
 under the same conditions, the authority property, at any rate without express 
 of the auctioneer to bind the purchaser authority for that purpose: Ingram c. 
 by signing for him is no greater than Ingram, Spears Ch. (So. Car.) 464; 
 that of any other agent: ]\Iev\'S v. Carr, Hood v. Adams, 12S Mass. 207.] 
 iH. &N. 484; 26 L.J. Ex. 39; cf Oli- {v) Story, Ag. § 106; Sra. Merc, 
 
 phant's Law of Ilurses, &c., 41. Wood Law, 126; Broom, C. L., 523; Dart, 
 ■zi. Midgley, 2 Sm. & G. 115,13 an appa- 183; Russell c. Palmer, 2 Wils. 325 ; 
 rent decision to the contrary ; but it is Pitt v. Valden, 4 Burr. 2060 ; Moore v, 
 perhaps to be regretted that that case Mourgue, Cowp. 480 ; Warwicke v. 
 was not reported on appeal. [If goods Noakes, Peake, N.P.C. 98 ; Russell v. 
 arc sent to an auctioneer with directions Ilankey, 6 T.R. 12 ; Foster v. Pearson, 
 to sell them at public auction, and he i CM. & R. 849; 5 Tyrw. 255 ; Sutton 
 sells them at private sale without au- z: Tatham, 10 A. & E. 27 ; CoUen v. 
 thority, and fails to pay over the pro- Gardner, 21 Beav. 542. 
 ceeds, this is a breach of the condition (tj) Story, .Vg. § 106. 
 
 of his bond as auctioneer : Mc.Mechen 
 
 [' An auctioneer who deviates from the instructions of his principal is liable in 
 damages, like other agents: Wilkinson v. Campbell, i Bay (So. Car.) 169.] 
 
 [^ The authority of an agent employed by the owner of land to make a con- 
 tract for the sale thereof, to receive so much of the purchase-money as is to be 
 paid down, is a necessary incident of the power to sell: Adams v. Humphrey, 54 
 Ga. 496; Goodale v. Wheeler, 11 N.II. 424; Peck v. Harriott, 6 Serg. & R. 
 (Penn.) 146; Rodgers v. Bass, 46 Tex.is, 505; Lumpkin v. Wilson, 5 Heisk. 
 (Tenn.) 555; Yerby v. Grigsby, 9 Leigh (Va.) 3S7. But a mere authority to 
 sell on credit does not authorize the salesman subsequently to collect the price : 
 
 30 
 
CHAP. 11.] AND AGENCY GENERALLY. 25* 
 
 What the Authority to Sell Comprises. — Where no solicitor 
 is employed, the auctioneer may, it would seem, introduce 
 special conditions of sale (x).^ Goods are privileged from 
 distress while on the premises of an auctioneer for the pur- 
 pose of being sold by auction (j), although the place of sale 
 is merely hired for the occasion (z) ; but if the goods which 
 an auctioneer is commissioned to sell, being upon premises 
 occupied by his principal, are threatened [25] with a lawful 
 distress for rent, though due from a third person, and, in 
 order to prevent the distress from being made before sale, 
 the auctioneer promise to pay the rent, the principal, it seems, 
 will be bound to hold him harmless upon such promise, if a 
 reasonable one to be made under the circumstances (a). An 
 auctioneer to whom goods are entrusted for sale can main- 
 tain an action against a stranger who takes them out of his 
 possession (d).- The auctioneer's verbal declarations at the 
 
 (a-) Sugd. 45, referring to Pike v. by the auctioneer by an act of trespass; 
 
 Wilson, I Jur. N.S. 59. Cf. Denew v. ibid.; but see Lyons;:'. Elliott, i Q.B.D. 
 
 Daverell, 3 Camp. 451. But see Dart, 210, 215; 45 L.J.Q.B. 159. The privi- 
 
 178; I Dav. 508; cf. Story, Ag. § 107; lege does not extend to goods on premi- 
 
 Hinde v. Whitehouse, 7 East, 558. ses not in the occupation of the auc- 
 
 (j) Adams z/. Grane, I C. & M. 380; tioneer: Lyons i/ Elliott, «.!'! «<//-«. 
 
 3Tyv\v. 326; 2 L.J. Ex. 105; Williams . (a) See the judgments of Blackburn 
 
 V. Holmes, 8 Ex. 861; 22 L.J. Ex. 283; and Mellor, JJ., in Sweeting v. Turner, 
 
 cf. Miles V. Furber, L.R. 8 Q.B. 77; 21 L.R. 7 Q.B. 310; 41 L.J.Q.B. 58. 
 W.R. 262. {b) Broom, C. L., 816; cf. Holmes 
 
 (s) Brown v. Arundell, lo C.B. 54 ; v. Tutton, 5 E. & B. 65 ; 24 L.J.Q.B. 
 
 20 L.J.C.P. 30; or although the occupa- 346; i Jur. N.S. 975. 
 tion of the premises has been acquired 
 
 Law V. Stokes, 32 N.J. Law, 249; Seiple v. Irwin, 30 Penn. St. 513. A custom 
 of trade will not be allowed to vary or modify a principal's express instructions to 
 his agent, unless it is plainly established, and is shown to be ancient, uniform, 
 notorious, and reasonable : Hall v. Storrs, 7 Wise. 253.] 
 
 [' Assignees in bankruptcy who employ an auctioneer to sell the assets of the 
 estate and put them in his charge must be understood to authorize him to speak 
 for them, and are bound by his acceptance of a bid, if the bankruptcy court has 
 not set aside the sale : Ives v. Tregent, 29 Mich. 390. But an agreement by a 
 sheriff selling goods under process of the law to postpone the payment of the 
 price, especially if made after sale, cannot affect the rights of the parties who are 
 entitled to the proceeds of the sale : Jones v. Thacker, 61 Ga. 329. They can 
 require immediate payment from the sheriff: Davis v. Irwin, 8 Ga. 153; Phillips 
 V. Behn, 19 Ga. 298; Davis v. Hunt, 2 Bailey (So. Car.) 412; Coats v. Stewart, 
 19 Johns. (N.Y.) 298. But if the parties authorize the sheriff to sell on credit, 
 they cannot complain of his not paying over the proceeds immediately upon the 
 sale : Langdon v. Summers, 10 Ohio St. 77.] 
 
 [° An auctioneer who, as the agent of the owner, sells and delivers goods on a 
 
 31 
 
*2S 
 
 AUTHORITY TO SELL 
 
 [part I. 
 
 sale, at least where they do not contradict the written par- 
 ticulars and conditions, are, it is said, admissible against, and 
 binding on, his employer (<:).' No action lies against an auc- 
 tioneer for selling a chattel at the highest price bid for it, 
 contrary to the owner's express directions not to let it go 
 under a larger sum named {d). An auctioneer has a special 
 
 (c) Story, Ag. § 107; cf. Eden -v. 
 Blake, 13 M. & \V. 614; 14 L.J. Ex. 194. 
 But see J^osf, Chapter X. ; and Campbell, 
 Sale & Ag. 423. 
 
 ((/) Bcxivell -'. Christie, I Cowp. 395. 
 Alitor, if the owner directs the auc- 
 tioneer to set up the chattel at a particu- 
 lar price and not lower : ibid. Cf. Chap- 
 ter ^W., post. [But it is not illegal for 
 the owner of goods placed in an auc- 
 tioneer's hands to direct the auctioneer 
 not to dispose of them unless they shall 
 produce a certain specified sum. Such 
 a restriction is not regarded as an unfair 
 means of enhancing the price, or as an 
 imposition upon fair purchasers : Towle 
 V. Leavitt, 23 N.H. (3 Foster) 360; 
 Bush V. Cole, 28 N.Y. 261 ; Wolfe ^^ 
 Luyster, I Hall (X.V.) 146 ; Hazul -'. 
 Dunham, id. 655. And if the auctioneer 
 disobeys such an order from his princi- 
 pal, he is liable to the latter; Wolfe v. 
 Luyster, supra : Steele v. EUmaker, 1 1 
 Serg. & R. (Penn.) 86. If the goods 
 cannot be sold at the limited price, the 
 auctioneer must not sell ; and if the 
 goods perish because they cannot be 
 sold at that price, the loss will fall upon 
 the owner : Williams z'. Poor, 3 Cranch 
 C.C. 251. Where auctioneers who were 
 not authorized to sell an estate for less 
 than $2,Soo, struck it at a bid of $2,250, 
 it was held that the contract of sale was 
 not binding upon the owner, but that 
 the purchaser could recover from the 
 
 auctioneers full damages for the loss of 
 his bargain : Bush f. Cule, 28 N.Y. 261. 
 So where a judgment creditor instructed 
 the sheriff not to sell the debtor's land 
 to a stranger for less than the amount 
 of the debt, and the sheriff by mistake 
 struck the land off to another for a 
 smaller price, the sale was set aside, in 
 Stahl f. Charles, 5 Abbott Pr. (X.Y.) 
 348. In Baring z'. Moore, 5 Paige 
 (N.Y.) 48, a resale of premises sold by 
 a master had been decreed, provided 
 that a certain sum should be bid there- 
 for. The premises having been struck 
 off to the petitioner for that sum, the 
 master, in compliance \^'ith the direction 
 of a person interested in the sale, for the 
 first time announced that the purchase- 
 money must be paid in specie ; and 
 though the purchaser offered to pay the 
 amount of his bid in current bank-bills, 
 or by a draft upon the bank in which 
 the master \vas to deposit the money, 
 the premises were again put up on the 
 terms of immediate payment in specie ; 
 and no one being able to comply with 
 these terms, the master declared the sale 
 closed, and reported that the condition 
 of the resale had not been complied 
 with. But it was held that this conduct 
 of the master was unjustifiable and op- 
 pressive ; his report was set aside ; and 
 he was ordered to convey to the pur- 
 chaser upon the latter's payment of the 
 
 amount of his bid.] 
 
 condition which is not complied with by the purchaser, may himself maintain 
 replevin therefor: Tyler v. Freeman, 3 Cush. (Mass.) 261.] 
 
 [' Where a master appointed to sell mortgaged premises under a decree had 
 written instructions from the plaintiff not to sell them for less than the amount of 
 the debt and costs, but from misapprehension of his duty permitted them to be 
 knocked off for a smaller sum to purchasers who had notice of his instructions, 
 and knew that he intended to report the circumstances of the sale for the decision 
 of the chancellor, the court ordered a resale to be made : Requa z' Rea " Paife 
 (N.Y.) 399.] ' ■ " 
 
 32 
 
CHAP. II.] 
 
 AND AGENCY GENERALLY. 
 
 26* 
 
 property in the goods which he is employed to sell, with a 
 lien upon them and upon the price, when paid, for the charges 
 of the sale and his commission ; he may make the contract of 
 sale in his own name ; and he can sue the purchaser for the 
 price {e) ' ; as, on the other [26] hand, he is deemed person- 
 
 {i) Williams v. Millington, I H. Bl. 
 81; Coppin z;. Craig, 7 Taunt. 243; Rob- 
 inson V. Rutter, 4 E. & B. 954; 24 L.J. 
 Q.B. 250; I Jur. N.S. 823 ; 2 Sm. L.C. 
 399 ; Paley, P. & A. 362 ; Story, Ag. 
 § 27 ; Leake, 522 ; but not where the 
 right of a third person intervenes and is 
 established : Dickenson v. Naul, 4 B. & 
 Ad. 638. [Commissioners who have sold 
 land under a decree of the orphans' 
 court in New Jersey may sue in their 
 own names a purchaser who has failed 
 to comply with the terms of sale : Shinn 
 V. Roberts, 20 N.J. Law (l Spen.) 435.] 
 The auctioneer has no such right to sue 
 in his own name on a sale of real estate 
 as on a sale of goods; on the sale of real 
 estate the right to sue depends on the 
 written contract alone : Cherry v. An- 
 derson, I.R. 10 C.L. 204. But, though 
 known to be acting for a principal, he 
 may recover for the use and occupation 
 of land hired from him under a verbal 
 agreement : Fisher v. Marsh, 6 B. & S. 
 411; 34L.J.Q.B. 177; II Jur. N.S. 795; 
 12 L.T.N.S. 604; 13 W.R. 834. The 
 auctioneer cannot sue a party for whom 
 he personally signs as agent, the rule 
 being that neither of two contracting 
 parties can act as agent for the other for 
 the purpose of signing : Wright v. Dan- 
 nah, 2 Camp. 203; Farebrother v. Sim- 
 mons, 5 B. & Aid. 333 ; Sharman v. 
 Brandt, L.R. 6 Q.B. 720 ; 40 L.J.Q.C. 
 312; [Bennett z). Carter, Riley (So. Car.) 
 287;] cf. Rayner v. Linthorn, i R. & M. 
 
 325; [Hand v. Grant, 5 Sm. & M. 
 (Miss.) 508]. But he can maintain the 
 action, when the entry has been made 
 by his clerk with the authority of the 
 defendant : Bird v. Boulter, 4 B. & Ad. 
 443; I N. & M. 313. [An auctioneer 
 has a special property in goods sold by 
 him at auction, and may maintain an 
 action for the price in his own name 
 against the purchaser : Beller v. Block, 
 19 Ark. 566; Flanigan v. CruU, 53 Ills. 
 352; Hunt V. Gregg, 8 Blackf. (Ind.) 
 105 ; Armstrong v. Vroman, 1 1 Minne. 
 220; Minturn v. Main, 7 N.Y. 220; 
 Bogart V. O'Regan, i E. D. Smith (N. 
 Y.) 590; McKee v. Lineberger, 69 Nor. 
 Car. 217; Hulse v. Young, 16 Johns. 
 (N.Y.) I ; Gaskell v. Morris, 7 Watts & 
 S. (Penn.) 32. But this right of the 
 auctioneer is, as in other cases of agents 
 and factors, subject to the right of the 
 principal to enforce the collection in his 
 own name : Girard v. Taggart, 5 Serg. & 
 R. (Penn.) 19. But if the purchaser at a 
 sheriff's sale refuses to pay the purchase 
 money, the sheriff, though he must ten- 
 der a deed to the purchaser, as declared 
 in State v. Lines, 4 Ind. 35 1, is not bound 
 to make himself liable for costs by suing 
 the purchaser : Bisbee v. Hall, 3 Ohio, 
 449, though he may do so : Sanborn v. 
 ChamberUn, loi Mass. 409; Ball v. 
 DivoU, 17 Pick. (Mass.) 143; Yongue 
 V. Cathcart, -^ Strobh. (So. Car.) 225 ; 
 Hand v. Grant, 5 Sm. & M. (Miss.) 
 508.] 
 
 [' Auctioneers employed to sell goods, with discretion to sell on credit, took 
 notes from the buyers payable to themselves at a future day; and the makers of 
 the notes failed before the maturity of the notes. Held, that the principal and 
 not the auctioneers should bear the loss, unless it appeared that the auctioneers 
 appropriated the notes for their own purposes; and though the auctioneers pro- 
 cured the notes to be discounted for their own accommodation, yet if at the time 
 they were in advance to their principal to an equal or greater amount, this would 
 not be such an appropriation of the note^ to their own use as would throw the loss 
 upon themselves: Townes v. Birchett, 12 Leigh (Va.) 173.] 
 
 33 
 
'2/ 
 
 AUTHORITY TO SELL 
 
 [part I. 
 
 ally a vendor, unless at the time of sale he discloses the name 
 of his principal (/). A power to sell goods primd facie in- 
 cludes a power to receive the proceeds of the sale {g) ; but 
 where, on a sale of growing timber, the conditions provided 
 that part of the price should be paid down as a deposit and 
 the residue at a future day, it was held that the auctioneer's 
 authority to receive payment did not extend beyond the de- 
 posit {li)} 
 
 [27] What it does not Include. — An auctioneer employed 
 under a parol agreement to sell goods has not such an interest 
 as will make the licence to enter upon the owner's premises 
 for that purpose irrevocable (z). An auctioneer put into 
 
 tions : Mainprice v. Westley, 6 B. & S. 
 421; 34L.J.Q.B". 229; 13L.T.N.S. 560; 
 14 W.R. 9. Simply advertising a sale is 
 ti mere declaration and does not amount 
 to a contract with any one acting upon 
 it, nor to a warranty that all the articles 
 advertised will be put up for sale ; Har- 
 ris V. Nickerson, L.R. 8 Q.B. 286; 42 
 L.J.Q.B. 171; 28 L.T.N.S. 410; 21 
 W.R. 635; cf. Spencer v. Harding, 
 L.R. 5 C.P. 561; 39 L.J.C.P. 332; 
 Richardson v. Silvester, L.R. 9 Q.B. 34; 
 43 L.J.Q.B. I. 
 
 (j-) Williams v. Millington, i H. Bl. 
 81; Brown v. Staton, 2 Chit. 353; 
 Capel V. Thornton, 3 C. & P. 352; 
 Leake, 912. According to an Amer- 
 ican case a power to sell goods only 
 confers a power to receive the price at 
 the time of the sale, but not subsequently, 
 unless there be some other proof of 
 authority than a mere power of sale : 
 Seiple V. Irwin, 30 Penn. St. 513. \_An- 
 tea, p. 24, n. I.] 
 
 (JC) Sykes v. Giles, 5 M. & W. 645; 
 see Leake, 912; cf. Oliphant's Law of 
 Horses, &c., 51. [But see Pinckney v. 
 Hagadorn, i Duer (N.Y.) 89.] 
 
 {€) Taplin v. Florence, loC.B. 744; 
 20 L.J.C.P. 137; 15 Jur. 402; Broom, 
 C.L. 425. [A sheriff who has seized 
 
 (/) Hanson v. Roberdeau, Peake, 
 N.P.C. 163; Ex parte Hartop, 12 Ves. 
 352; Jones V. Littledale, 6 A. & E. 
 486; I N. & P. 677; Franklyn v. La- 
 mond, 4 C.B. 637; 16 L.J.C.P. 221 ; II 
 Jur. 780; Woolfe v. Horn, 2 Q.B.D. 
 355 ; 46 L.J.Q.B. 536; [Mills v. Hunt, 
 20 Wend. (N.Y.) 431 ; Schell v. Steph- 
 ens, 50 Mo. 375; Thomas v. Kerr, 3 
 Bush (Ky.) 619; and the bidder may 
 repudiate his -purchase, if the auctioneer 
 refuses to disclose the name of his prin- 
 cipal : Thomas v. Kerr, supra\. Cf. 
 Story, Ag. § 267; Thomson v. Daven- 
 port, 2 Sm. L.C. 364, 379. Perhaps, 
 generally, the right to sue involves a 
 corresponding liabiUty to be sued : Poll. 
 Con. 430; Leake, 522; cf. Fairlie v. 
 Fenton, L.R. 5 Ex. 169; 39 L.J. Ex. 
 107. Moreover, it seems that, where the 
 owner is undisclosed, an auctioneer who 
 undertakes to, but does not, sell without 
 reserve, is liable on his undertaking to 
 the highest bond fide bidder ; Warlow v, 
 Harrison, I E.&E. 295, 309; 2S L.J.Q.B. 
 18; 29 L.J.Q.B. 14; 5 Jur. N.S. 313; 6 
 Jur. N.S. 66. [Stahl v. Charles, 5 Ab- 
 bott Pr. (N.Y.) 348; Towle v. Leavitt, 
 23 N.H. 360.] But it appears to be 
 otherwise, if the owner is disclosed, and 
 the auctioneer only follows his instruc- 
 
 [' If the conditions of the sale are such as of themselves to show that the ven- 
 dor intended payment of the price to be made to himself, he would not be bound 
 by the purchaser's payment to the auctioneer: Sykes v. Giles, 5 M. & W. 645; 
 Capel V. Thornton, 3 C. & P. 352; Taylor v. Wilson, 11 Met. (Mass.) 44.] 
 
 34 
 
CHAP. II.] 
 
 AND AGENCY GENERALLY. 
 
 27 
 
 possession of fixtures attached to tlie freehold, for the pur- 
 pose of selling them, the purchaser being bound to detach 
 and remove them, has been held not to have such a possession 
 as would support trespass de bonis asportatis for their wrong- 
 ful removal (_;'). On an employment of an auctioneer to sell 
 by auction there is no employment to sell by private con- 
 tract, if the public sale proves abortive ; and evidence of a 
 custom to that effect among auctioneers is inadmissible {k). 
 An agent employed to sell an estate has not ipso facto au- 
 
 goods has not the right to sell them on 
 the defendant's premises without the 
 latter's permission; and the defendant 
 may treat as a trespasser any person 
 who goes upon his premises to attend 
 the sheriffs sale : McM&ster v. McPher- 
 son, 6 U.C.Q.B. (O.S.) i6. "A sale 
 of chattels," says Mr. Justice Wells, in 
 McLeod V. Jones, 105 Mass. 403, 
 "which are at the time upon the land 
 of the seller will authorize an entry 
 upon the land to remove them, if by the 
 express or implied terras of the sale that 
 is the place where the purchaser is to 
 take them : Wood v. Manley, II Ad. & 
 El. 34; Nettleton v. Sikes, 8 Metcalf, 
 34; Giles V. Simonds, 15 Gray, 441; 
 Drake v. Wells, 11 Allen, 141 ; McNeal 
 V. Emerson, 15 Gray, 384. A license 
 is implied because it is necessary in 
 order to carry the sale into complete 
 effect, and is therefore presumed to 
 have been in contemplation of the par- 
 ties. It forms a part of the contract 
 of sale. The seller cannot deprive the 
 purchaser of his property, nor drive him 
 to an action for its recovery, by with- 
 drawing his implied permission to come 
 and take it. This proposition does not 
 apply of course to a case where a sev- 
 erance from the realty is necessary to 
 convert the subject of the sale into per- 
 sonalty, and the revocation is made be- 
 fore such severance. But there is no such 
 inference to be drawn when the property 
 at the time of the sale is not upon the 
 seller's premises; or when, by the terms 
 of the contract, it is to be delivered 
 elsewhere. And when there is nothing 
 executory or incomplete between the 
 
 parties in respect to the property, and 
 there is no relation of contract between 
 them affecting it, except what results 
 from the facts of ownership or legal 
 title in one, and possession in the other, 
 no inference of a license to enter upon 
 lands for the recovery of the property 
 can be drawn from that relation alone."] 
 
 (y) Davis V. Danks, 3 Ex. 435; 18 
 L.J. Ex. 213. 
 
 (/;) Marsh v. Jelf, 3 F. & F. 234; 
 cf. Drury z/. Defontaine, i Taunt. 131; 
 Bloxsome v. Williams, 3 B. & C. 232. 
 "An agent or trustee," says Mr. Dart 
 (V. & P. 65), "simply authorized to 
 sell by public auction, either generally 
 or for a specified sum, cannot, whatever 
 price be offered, sell by private contract : 
 Daniel v. Adams, Amb. 495; In re 
 Loft, 8 Jur. 206 ; Sugd. 61 ; but in one 
 or two recent cases, after an abortive 
 attempt to sell by public auction subject 
 to a reserved bidding, a sale by the 
 trustee or agent by private contract at 
 the reserved price has been upheld, and 
 the title has, under special circumstances, 
 been forced on the purchaser : Else v. 
 Barnard, 28 Beav, 228; Bousfield v. 
 Hodges, 33 Beav. 90; sed qu(sre. And 
 an express authority to sell by private 
 contract would not, it is conceived, 
 justify a sale by auction, unless the 
 authority were to sell for a specified 
 sum, and the price obtained at the auc- 
 tion, after payment of the incidental 
 expenses, exceeded or equalled that 
 amount." Of. Story, Ag. § 102. [A 
 simple power to sell does not authorize 
 a sale by auction : Towle v. Leavitt, 3 
 Foster (N.H.) 360.] 
 
 35 
 
^28 
 
 AUTHORITY TO SELL 
 
 [part I. 
 
 thority to receive the purchase-money (/) : unless specially 
 authorized, he has no power to receive more than the de- 
 posit (;«). The auctioneer has only authority to receive 
 cash, and not to give credit to the vendee, or to take a bill 
 of exchange or other [28] security from him («).' An auc- 
 tioneer authorized to sell is not justified in selling to a firm 
 in which he is a partner, or a company of which he is a mem- 
 ber ; still less in purchasing for himself (o).^ The auctioneer's 
 
 (/) Mynn v. Joliffe, i Moo. & R. 
 326; cf. Pole V. Leask, 28 Beav. 562; 
 33 L.J. Ch. 155. 
 
 (ot) Sykes v. Giles, 5 M. & W. 
 645. Cf. pas/, p. 171. [An/ea, p. 24, 
 
 u. I.] 
 
 (k) Story, Ag. § 209; Sugd. 48; 
 Williams v. Millington, I H. Bl. 81; 
 Earl of Ferrers v. Robins, 2 C.^i. & R. 
 152; I Gale, 70; 5 Tyrw. 705; Wil- 
 liams V. Evans, L.R. i Q.B. 352; 35 
 L.J.Q.B. Ill; 13 L.T.N.S. 753; 14 
 W.R. 330; cf. Wiltshire v. Sims, i 
 Camp. 258; Sykes v. Giles, 5 M. & W. 
 645. But if he accepts the purchaser's 
 I.O.U. for the money, even though he 
 does so with the vendor's consent, it 
 seems that he may sue upon it in his 
 cvi^n name : Cleave v. Moors, 3 Jur. 
 N.S. 48; and see ^osf, p. 173, as to 
 cheques. 
 
 (0) Salomons v. Pender, 3 H. & C. 
 639; 34L-J-EX. 95; II Jur. N.S. 432; 
 12 L.T.N.S. 267; 13 W.R. 637; Story, 
 Ag. § 210; Oliver v. Court, Dan. 301; 
 8 Price, 127; Baskett v. Cafe, 4 De G. 
 & Sm. 388; Sugd. 688; cf. Crowe v. 
 
 Ballard, 3 Bro. Ch. 117; Lord Hard- 
 wicke V. Vernon, 4 Ves. 411 ; Ex parte 
 Hughes, 6 Ves. 617; Coles v. Treco- 
 thick, 9 Ves. 234, 248; i Smith, 233; 
 Huguenin v. Basely, 14 Ves. 273; 
 Whitcomb v. Minchin, 5 Madd. 91 ; 
 Lees V. Nuttall, I Russ. & M. 53; Tay- 
 lor V. Salmon, 4 My. & C. 134. But 
 the auctioneer is not absolutely disqual- 
 ified from purchasing for himself, and 
 the transaction may be sustained by 
 evidence that the vendor's interests have 
 been sufficiently guarded: Dart, 35; 
 Morse v. Royal, 12 Ves. 355; note to 
 Massey v. Davies, i Hov. Supp. to Ves. 
 jun. 269; Sm. Merc. Law, 109, no. 
 When a person cannot purchase on his 
 own account, he cannot buy as agent 
 for a third person; [Campbell v. Swan, 
 48 Barb. (N.V.) 109] and perhaps he 
 cannot even employ third person to 
 contract or bid on behalf of a stranger : 
 Dart, 31; Coles z;. Trecothick, ubi su- 
 pra; Ex parte Bennett, 10 Ves. 381, 
 400; Gregory v. Gregory, 2 Coop. G. 
 201, 204; Sugd. 690; Lewin, 440. See 
 z\.%o post, p. 125, note {x). 
 
 [' If the terms of a sale by auction require a cash payment, the vendor is not 
 bound by the act of the auctioneer in receiving as payment a check upon a bank 
 in which the purchaser has then no funds, even though the vendor does not notify 
 the purchaser that he repudiates this act: Broughton v. Silloway, 114 Mass. 71.] 
 
 [- The auctioneer making a sale should not bid in behalf of himself or of any 
 other person: Brock v. Rice, 27 Graft. (Va.) 812. But in Scott v. Mann, 36 
 Texas, 157, it was decided that the rule that an agent who is employed to sell can- 
 not buy for himself does not prevent the auctioneer from making a bid in behalf 
 of a third person. In Brotherline v. Swires, 48 Penn. St. 58, the court held that 
 if an auctioneer discourages and repels bidders, and thus succeeds in purchasing 
 the property himself for a small sum, this is a fraud which will avoid the sale; 
 but if he gives the bidders a fair chance to purchase, merely refusing to warrant 
 the title to the property, his purchase is not fraudulent, however inadequate the 
 price, — a somewhat dangerous doctrine. An officer selling property on execu- 
 
 36 
 
CHAP. II.] AND AGENCY GENERALLY. 2Cf 
 
 authority ceases as soon as the sale has taken place (/) ; and, 
 therefore, after the sale, unless specially empowered, he can- 
 not rescind (g) or vary the contract (r), or deal with the pur- 
 chaser as to the terms upon which the title is to be made (j-).i 
 "Warranty by Auctioneer. — Whether an auctioneer has vir- 
 tute officii a right to warrant [29] goods does not seem to be 
 perfectly clear upon the authorities (/). 
 
 (/) Seton u. Slade, 7 Ves. 276; pp. 119, 130. [Mr. Justice Bigelow said 
 
 Sykes v. Giles, 5 M. & W. 645; Leake, in Blood v. French, 9 Gray (Mass.) 197, 
 
 277; Broom, C.L. 416. As to the ter- ig8, in delivering the decision of the 
 
 mination of his agency for the pur- court, that an auctioneer employed to 
 
 chaser, see Mews v. Garr, i H. & N. sell the goods of an intestate had no 
 
 484; 26 L.J. Ex. 39; cf. Wood V. Midg- authority to bind the administrator per- 
 
 ley, 2 Sm. & G. 115; and supra, p. 23, sonally by a warranty of their condition, 
 
 note (/). "We doubt whether in an ordinary sale 
 
 {if) Nelson 'u. Aldridge, 2 Stark, of goods by auction an auctioneer vir- 
 
 435. [Bradford v. Bush, 10 Ala. 386; tute officii has any right or authority to 
 
 Smith V. Rice, i Bailey (So. Car.) 648 ; warrant goods sold by him in the ab- 
 
 Boinest v. Leignez, 2 Rich. (So. Car.) sence of any express authority from his 
 
 464.] principal to do so, and without proof of 
 
 (?■) Blackburn v. Scholes, 2 Camp, some known and established usage of 
 
 343. trade, from which an authority can be 
 
 (.r) Sykes w. Giles, 5M. &W. 645; applied." In the Monte Allegro, 9 
 
 Story, Ag. § 108. Wheaton, 645, 647, it was said that 
 
 {t) Story, Ag. p. 115, n. 5; cf. Add. sales by auction in the usual mode are 
 
 Conn. 503; and see Chapter VI. /ui/, never accompanied by a warranty ; that 
 
 tion cannot purchase at his own sale: Creagh v. Savage, 9 Ala. 959; Mills v, 
 Goodsell, 5 Conn. 475; Stapp j'. Toler, 3 Bibb. (Ky.) 450; Stewart i/. Ruther- 
 ford, 4 Jones Law (Nor. Car.) 483; Woodbury v. Parker, 19 Vt. 353; though he 
 makes the purchase merely as the agent of the attaching creditor : Knight v. 
 H^rrin, 48 Maine, 533; or though the sale is conducted by another officer acting 
 in concert and in joint interest with himself: Robinson v. Clark, 7 Jones Law 
 (Nor. Car.) 562; Smith v. Pope, 5 B. Mon. (Ky.) 337. But if the officer himself 
 superintends the sale, and employs a crier merely as a mouthpiece, the latter may 
 purchase at the sale : Crook v. Williams, 20 Penn. St. 342. In Virginia such a 
 purchase by the officer is absolutely void, and even the grantee of the officer will 
 take no valid title against the former owners: Taylor v. Stringer, i Grattan, 158; 
 Yancey v. Hopkins, i Munf. 419; but it is generally considered to be merely 
 voidable at the election of the parties in interest seasonably made : Pierce v. 
 Benjamin, 14 Pick. (Mass.) 356; Lazarus v. Bryson, 3 Binney (Penn.) 54. The 
 validity of the sale is sometimes made to depend upon its bona fides : Isaac v. 
 Clarke, 2 Gill (Md.) i; Arnold z/. Brown, 24 Pick. (Mass.) 89. A sale by a 
 sheriff under an execution to his own wife is voidable, but not absolutely void : 
 Dexter v. Strobach, 56 Ala. 233. Substantially the same rules will be applied to 
 a purchase by an officer making a sale for taxes, or by his agents : Chandler v. 
 Moulton, 33 Vt. 245; Morton v. Waring, 18 B. Mon. (Ky.) 72; Fox v. Cash, 11 
 Penn. St. 207.] 
 
 [' After a sheriff has made a partition sale, he has no power to discharge the 
 purchaser, upon the latter's failure to carry out his bargain, and resell the prop- 
 
 37 
 
^2g 
 
 AUTHORITY TO SELL 
 
 [part I. 
 
 As to Delegation of his Authority. — An auctioneer employed 
 to sell must himself sell the property, and cannot, without 
 special authority, delegate the sale to another : vicarms non 
 habct vicariuin («).i But as regards subsidiary matters, the 
 
 auctioneers have only authority to sell, 
 and not to warrant, unless specially in- 
 structed so to do. There is no impUed 
 warranty in a sheriff's sale under process 
 of law : Worthy v. Johnson, 8 Ga. 236; 
 Bashorej'.Whisler, 3 Watts(Penn.) 490; 
 Commissioner v. Thompson, 4 McCord 
 (So. Car.) 434; Yates v. Bond, 2 id. 382; 
 Herbemontj'. Sharp, 2id.264; S.C., nam. 
 Thayer v. SheritT, 2 Bay, 167; Davis 7^. 
 Murray, 3Treadw. Const. (So. Car.) 143; 
 Davis V. Hunt, 2 Bailey (So. Car.) 412; 
 Robinson z/. Cooper, i Hill(So. Car.) 286; 
 Thayer v. Sheriff, 2 Bay (So. Car.) 169; 
 Stone V. Pointer, 5 Munf. (Va.) 2S7; 
 and the purchaser at such a sale cannot 
 defend against paying the price upon 
 the ground that the judgment debtor 
 had no title or only a defective one, and 
 therefore that the bid was without con- 
 sideration : Cameron v. Logan, 8 Iowa, 
 434 ; Dwight's Case, 15 Abbott Pr. 
 (N.Y.) 259 ; Isley v. Stewart, 4 Dev. & 
 Bat. Law (Nor. Car.) 160. But it has 
 been maintained in Kentucky, in Harri- 
 son 1'. Shanks, 13 Bush, 620, and Com- 
 monwealth V. Dickinson, 5 B. Mon. 506, 
 that the sheriff in selling property under 
 an execution is bound to state any de- 
 fect of title which is known to him, and 
 will be responsible for a neglect of this 
 duty. See also Forsythe v. Ellis, 4 J. J. 
 Marsh. (Ky.) 298 ; Commissioners v. 
 
 Macon, 2 Brevard (So. Car.) 105 ; 
 Stoney v. Shultz, i Hill Ch. (So. Car.) 
 465. If a commissioner, in selling per- 
 sonal property under the decree of a 
 court, gives notice that there is no war- 
 ranty of the soundness of the property, 
 the purchaser buys at his own risk, and 
 must pay though the property proves 
 unsound: Parker v. Partlow, 12 Rich. 
 (So. Car.) 679. But the auctioneer will 
 be liable upon his personal warranty : 
 Dent t'. McGrath, 3 Bush (Ky.) 174; 
 Schell V. Stephens, 50 Mo. 375. A 
 statement by an auctioneer, made as an 
 inducement to bidders, that the building 
 which he is selling is suited to tenement 
 purposes and could be removed for that 
 purpose, but not shown to be made or 
 understood to vary the terms of the 
 printed advertisement of the sale, is 
 merely a statement of his opinion, and 
 cannot be construed into a guaranty that 
 the proper authorities would grant a 
 permit to remove the building through 
 the public streets: Woodward v. Bos- 
 ton, 115 Mass. 81. See also McGrewz/. 
 Forsythe, 31 Iowa, 179.] 
 
 (n) Sugd. 44; Broom's Legal Max- 
 ims, 5th ed. 839; cf. Roll. Abr. 668; 
 Coles V. Trecothick, 9 Ves. 234, 251 ; i 
 Smith, 233; Solly v. Rathbone, 2 M. & 
 S. 298; Cockran v. Irlam, ii. 301 ; Cat- 
 
 hn V. Bell, 4 Camp. 1S3; Schmaling v. 
 
 erty. The sheriff cannot divest the vendors of their beneficial interest in the 
 bargain n ithout their consent : Stewart v. Garvin, 33 Mo. 103. And see Saladin 
 V. Mitchell, 45 Ills. 79. And a trustee appointed by the court to sell property 
 will not be allowed, after his sale has been ratified, to abandon any right which 
 belongs to him under the contract of sale which has been ratified : Wampler 2,. 
 Shipley, 3 Bland (Md.) Ch. 182, and may be made personally liable for doing so; 
 Sherwood 7/. Saxton, 63 Mo. 7S.] 
 
 [' An auctioneer cannot delegate his authority to sell by auction : Common- 
 wealth I-. Plarnden, 19 Pick. (Mass.) 4S2; Stone -j. State, 12 Mo. 400; but he 
 may employ another person to ply the hammer and make the outcry under his 
 own direction and supervision: Poree v. Bonneval, 6 La. Ann. 386; Common- 
 wealth c: Harnden, supra ; even though he is himself occasionally absent during 
 the sale : Commonwealth v. Harnden, supra. The trustee in a deed of trust with 
 
 38 
 
CHAP. II.] AND AGENCY GENERALLY. 29* 
 
 rule is that, when from the nature of an agent's trust it is 
 not to be expected that lie should accomplish it all by his 
 own personal exertions, he will be allowed to employ others 
 to assist him {v). The clerk of an auctioneer has, in general, 
 no authority to bind his master's principal by signing (w). 
 Very slight evidence of assent will, however, suffice to con- 
 clude either the vendor or the purchaser by the signature 
 of the clerk {x)} But the signature of the clerk signing 
 merely " as witness " to the signature of the purchaser will 
 not charge the vendor {y). 
 
 Thomlinson, 6 Taunt. 147 ; i Marsh, well, 2 B. & P. 438; Gosbell v. Archer, 
 
 500; Henderson v. Barnewall, I Y. & J. 2 A. & E. 500; 4 N. & M. 485; i H. & 
 
 387 ; Doe d. Rhodes v. Robinson, 4 Sco. W. 31 ; Moon v. Guardians of Whitney 
 
 396 ; 3 Bing. N.C. 677 ; 3 Hodges, 84 ; Union, 5 Sco. i ; 3 Bing. N.C. 814; 3 
 
 I Jur. 356 ; Clark v. Dignum, 3 M. & Hodges, 206. 
 
 W. 319; I H. &H. 166; 2 Jur. 419; (w) Colesi/.Trecothick, 9 Ves. 234; 
 
 ['Wolfz'.VanMetre,27lowa,348; Singer I Smith, 233; Blore v. Sutton, 3 Mer. 
 
 Manufg. Co. v. Chalmers, 2 Utah, 542]. 237; Burnell v. Brown, i J. & W. 168. 
 
 An exception to the rule delegatus non But st& post^ pp. 114, 154-6. 
 potest delegare occurs when the highest (x') Coles v. Trecothick, 9 Ves. 234, 
 
 bidding at an auction is made by an 250 ; i Smith, 233 ; Bird v. Boulter, 4 
 
 agent; in such a case the principal will B. &Ad. 443; iN. &M. 313; cf. Pierce 
 
 be bound by the auctioneer signing on v. Corf, L.R. 9 Q.B. 210; 43 L.J.Q.B. 
 
 his behalf under the implied authority 52; and see Dart, 181. 
 of the agent: White i". Proctor, 4 Taunt. {y) Gosbell v. Archer, 2 A. & E. 
 
 207; Kenworthy v. Schofield, 2 B. & C. 500; 4 N. & M. 485 ; i H. & W. 31. 
 
 945. As to the auctioneer's responsibility for 
 
 (v) Sm. Merc. Law, 104; Goswill the acts of his subordinates, see !«/>-<j, 
 
 V. Dunkley, 2 Str. 680; Bromley v. Cox- p. 37. 
 
 power of sale given to secure a debt must retain a supervision and control over 
 the sale; but he may employ an auctioneer to conduct the sale under his imme- 
 diate direction : Sebastian v. Johnson, 72 Ills. 282 ; Chambers v. Jones, 72 Ills. 
 275; Taylor v. Hopkins, 40 Ills. 442; Meyer v. Bishop, 27 N.J. Eq, 141; Vail v. 
 Jacobs, 62 Mo. 130; Johns u. Sargeant, 45 Miss. 332. The general principle 
 is that wherever the agent must from the necessity of the case employ a sub-agent, 
 the assent of the principal to such employment is implied : Williams v. Woods, 
 16 Md. 220; Darling v. Stanwood, 14 Allen, 504; Dorchester & Milton Bank v. 
 New England Bank, i Cush. (Mass.) 1 77 ; Appleton Bank v. McGilvray, 4 Gray 
 (Mass.) 518, 522; Peterson v. Christensen, 26 Minne. 387; Grady v. American 
 Central Ins. Co., 60 Mo. 116; Commercial Bank v. Norton, i Hill (N.Y.) 501; 
 Bodine v. Exchange Ins. Co., 51 N.Y. 117; Planters' Bank v. First National 
 Bank, 75 Nor. Car. 534; Laussatt v. Lippincott, 6 Serg. & R. (Penn.) 386; 
 Newell V. Smith, 49 Vt. 255; Chase v. Ostrom, 50 Wise. 640. An administrator 
 may appoint an agent or auctioneer to sell for him : Lewis v. Reed, 1 1 Ind. 239 ; 
 Succession of Haner, 5 La. Ann. 437.] 
 
 [' See Ijams v. Hoffman, I Md. 423; Barclay v. Bates, 2 Mo. App. 139; Frost 
 V. Hill, 3 Wend. (N.Y.) 386; Cathcart v. Keirnaghan, 5 Strobh. (So. Car.) 129. 
 Poslea, Ch. VIII.] 
 
 39 
 
*30 
 
 AUTHORITY TO SELL 
 
 [part I. 
 
 [30] Revocation of Authority. — Before the fall of the ham- 
 mer either party may revoke the auctioneer's authority (s). 
 Every bidding is but an offer on one side, which is binding 
 on neither, until it receives assent (a) ; the general rule being 
 that an offer may always be retracted before acceptance (d). 
 The authority to sell may be revoked, although the auctioneer 
 was commissioned to sell without reserve and has advertised 
 the sale to be so made (c) ; and the revocation is valid against 
 parties dealing without knowledge of it (d) . A bidder may 
 retract his bidding, although the conditions of sale provide 
 that the highest bidder shall be the purchaser (e), or even 
 that no person shall retract his bidding (/) ; but on a sale 
 by order of the Court such last-mentioned condition is bind- 
 ing upon the persons who consent to the sale and upon their 
 agents (£■). The retraction must be made loud enough to 
 be heard by the auctioneer ; otherwise it amounts to noth- 
 ing and is the same as a thought confined within the 
 breast (/i). It may be doubted, indeed, whether the bidder 
 may not retract his offer, in those cases where a memo- 
 
 (z) Sugd. 13; Payne v. Cave, 3 
 T.R. 148; Manser v. Back, 6 Hare 
 443; Taplin v. Florence, 10 C.B. 744; 
 20 L.J.C.P. 137; I5jur. 402; cf. Smart 
 V. Sandars, 3 C.B. 380; 5 C.B. 895 ; 16 
 L.J.C.P. 39; 10 Jur. 841. ["A pro- 
 poser may withdraw his offer so long as 
 it is not accepted; for if there be no 
 contract till acceptance, there is nothing 
 by which the proposer can be bound; 
 and the authorities quite support this 
 inference." Benjamin on Sales, 3d Am. 
 Ed., § 41.] 
 
 (fl) Payne V. Cave, 3 T.R. 148. [A 
 bidder at a judicial sale at public auc- 
 tion, whose bid has not been accepted, 
 the sale having been adjourned for suf- 
 ficient cause and finally discontinued, 
 cannot, although he has been the high- 
 est bidder, insist upon leave to pay the 
 amount of his bid and have a confirma- 
 tion of the sale to him : Blossom v. 
 Railroad Co., 3 Wallace, 196.] 
 
 (6) Routledge v. Grant, 4 Bing. 
 653; I Moo. & P. 717; 3C. &P. 267; 
 Head f. Diggon, 3 M. & R. 97; cf. 
 
 Byrne -i>. Van Tienhoven, 5 C.P.D. 344, 
 347; 49 L.J.C.P. 316. [Grotenkemper 
 V. Achtermeyer, II Bush (Ky.) 222. 
 "The assent must, in order to constitute 
 a valid contract, be mutual and intended 
 to bind both sides. It must also co- 
 exist at the same moment of time." 
 Benjamin on Sales, 3d Am. Ed., § 39, 
 and cases cited in Judge Bennett's 
 note.] 
 
 (c) Warlow v. Harrison, i E. & E. 
 295, 309; 28 L.J.Q.B. 18; 29 L.J.Q.B. 
 14; cf. Mason v. Armitage, 13 Ves. 25. 
 [But see the able and interesting dis- 
 cussion of the case of Warlow v. Harri- 
 son, supra, in Benjamin on Sales, 3d 
 Am. Ed., §§ 471-473] 
 
 (</) Manser v. Back, 6 Hare, 443. 
 
 \e) Payne v. Cave, 3 T.R. 148. 
 [Fisher v. Seltzer, 23 Penn. St. 308.] 
 
 (/) Sugd. 14; Leake, 42; cf. Dart, 
 124. 
 
 {g) Freer v. Rimner, 14 Sim. 391. 
 
 (/;) Jones v. Nanney, McCle. 39; 
 13 Price, 103; Morton, V. & P. 152. 
 
 40 
 
CHAP. II.J AND AGENCY GENERALLY. 3 1 
 
 « 
 
 randum is required by the Statute of Frauds, at any time 
 before the written entry is actually made by the auc- 
 tioneer (?'). 
 
 [31] An auctioneer cannot compel specific performance 
 of an agreement for the sale by him of a collection of works 
 of art, though he paid down a sum of money at the time 
 when the agreement was signed, and the advance was to be 
 repaid to him out of the proceeds of the sale (/) ; but if 
 goods are deposited in the hands of an auctioneer to be sold 
 by him in order that he may repay himself his advances upon 
 them, the authority, being coupled with an interest, cannot 
 be revoked (k) ; and if the auctioneer at a sale is authorized 
 to receive the purchase-money, a direction from his principal 
 to pay it to a third party cannot, if given for valuable con- 
 sideration, be revoked without the consent of such third 
 party (/). 
 
 A derivative authority cannot, generally, mount higher, 
 or exist longer, than the authority whence it issued {in). 
 Therefore, if an unmarried woman should give an authority 
 to an agent, and afterwards marry, the authority would be 
 revoked by the marriage («). 
 
 The bankruptcy of the principal operates as a revocation 
 of the authority of his agent touching any rights of property 
 
 (J) 3 Stark, Ev. 3d ed. 11 96; and of the sale as would bind his princi- 
 
 cf. note to Heyman v. Neale, and Far- pal.] 
 
 mer v. Robinson, -^ Camp. 338; also (/) Chinnock v, Sainsbury, 30 L.J. 
 
 Warwick v. Slade, 3 Camp. 127. In Ch. 409. 
 
 Day V. Wells, 30 Beav. 220 ; 7 Jur. {k) Add. Con. 379. 
 
 N.S. 1004; Sir John Romilly, M.R., is (/) Dart, 186. [Creager w. Link, 7 
 
 reported to have expressed an opinion Md. 259, 267; Simonton k. Minneapolis 
 
 that a vendor cannot, after real estate Bank, 24 Minne. 216. The creditor's 
 
 has been knocked down at an auction, assent makes the direction irrevocable ; 
 
 and before the signature of the written and such assent may be presumed from 
 
 contract, revoke the authority of the the creditor's knowledge of the transac- 
 
 auctioneer; and see Leake, 23; Dart, tion: Simonton v. Minneapolis Bank, 
 
 182. [See Reed v. Latham, 40 Conn, supra."] 
 
 452. In this case an agent who was {m) Story, Ag. § 481. 
 
 employed to sell goods made a contract (») Ibid. [It is held in Texas that 
 
 for the sale thereof, but made no written a single man's estate in the land on 
 
 memorandum of the contract. The which he has his home is so altered by 
 
 owner declined to deliver the goods, his marriage as to amount to a revoca- 
 
 and revoked the authority of the agent ; tion of a power of attorney given by 
 
 and it was held that the agent could him to sell such land. Henderson v. 
 
 not thereafter sign such a memorandum Ford, 46 Texas, 62S.] 
 
 41 
 
'32 
 
 AUTHORITY TO SELL 
 
 [part I. 
 
 of which he is divested by the bankruptcy : ' the bankrupt is 
 incapable of making a good title, and the act of his agent 
 can have no greater validity (o). The bankruptcy of the 
 [32] agent is not presumed to destroy the principal's confi- 
 dence in him ; but it is said that it revokes his authority to 
 receive money on account of his principal (/). 
 
 If a principal should become insane, that might operate 
 as a suspension of the authority of his agent during the con- 
 tinuance of the insanity {q). The case of the insanity of 
 the agent would seem to constitute a natural, nay, a neces- 
 sary revocation of his authority ; for the principal cannot 
 be presumed to intend that acts which would bind him should 
 be done by one who is incompetent to transact, or even un- 
 derstand, the business upon which he is employed {r). 
 
 An agency is determined by the death of either the prin- 
 cipal {s) or the agent (/). 
 
 (<7) lb. § 482. 
 
 {p) Story, Ag. § 486. [An agency 
 to sell merchandise for another is ter- 
 minated by the agent's insolvency : Aud- 
 enried v. Betteley, 8 Allen (Mass.) 302.] 
 
 (y) /i5. §481. [Where the wife was 
 authorized to act as her husband's agent, 
 his subsequent insanity was held not to 
 revoke her authority as against those 
 dealing with her in good faith in igno- 
 rance of his insanity : Drew v. Nunn, 4 
 Q.B. Div. 661 ; Davis v. Lane, 10 N.H. 
 156^ See Wallis v. Manhattan Bank, 3 
 Hall (N.Y.) 495 ; Motley v. Head, 43 
 Vt. 633.] 
 
 {r) lb. § 487. 
 
 (i) No valid act can be done in the 
 name of a dead man : Watson v. King, 
 4 Camp. 272; cf. Smout v. Ilbery, 10 M. 
 & W. I ; Campanari -v. Woodburn, 15 
 C.B. 400; 24 L.J.C.P. 13; [Gait V. Gal- 
 loway, 4 Peters, 332; Hunt v, Rousma- 
 nier, 8 Wheaton, 174; Saltmarsh v. 
 Smith, 32 Ala. 404; Travers v. Crane, 15 
 Calif. 12; Lewis i;. Kerr, 17 Iowa, 73; 
 Harper v. Little, 2 Maine (Greenl.) 14; 
 Clayton v. Merrett, 52 Miss. 353 ; Gale v. 
 
 Tappan, 12 N.H. 145; Rigs v. Cage, 2 
 Humph. (Tenn.) 350; Davis i/. Wind- 
 sor Savings Bank, 46 Vt. 728. So the 
 death of one member of a firm termi- 
 nates the agency of the remaining mem- 
 bers under the partnership : Travers v. 
 Crane, 1 5 Calif. 1 2 ; Johnson v. Wilcox, 
 25 Ind. 182; Marlett v. Jackman, 3 Al- 
 len (Mass.) 287. But in some cases the 
 stringency of the rule has been modified 
 as to acts done in ignorance of the death : 
 Carriger v. Whittington, 26 Mo. 31 1; 
 Dick z/. Page, 17 Mo. 234; New York 
 Bank v. Vanderhorst, 32 N.Y. 553; Ish 
 V. Crane, 8 Ohio St. 520; Cassiday v. 
 McKenzie, 4 Watts & S. (Penn.) 282.] 
 (0 Story, Ag. §§ 488-498 ; cf. Rus- 
 sell, Merc. Ag. 254-7; [Merrick's Es- 
 tate, 8 Watts & S. (Penn.) 402; Gage 
 V. Allison, I Brevard (So. Car.) 495 ; 
 Jackson Ins. Co. v. Partee, g Heisk. 
 (Tenn.) 296. The death of an agent 
 will also operate a revocation of the 
 power of a sub-agent whom he has 
 properly appointed : Lehigh Coal Co. v. 
 Mohr, 83 Penn. St. 228 ; Peries v. Ay- 
 cinena, 3 Watts & S. (Penn.) 64.] 
 
 [' And the agent is bound to take notice of his principal's bankruptcy : Daniels 
 in re, 13 N.B.R. 46.] 
 
 42 
 
CHAP. 11.] AND AGENCY GENERALLY. 33* 
 
 When an agent's authority is withdrawn, he is entitled to 
 remuneration for the trouble, reimbursement of the expenses, 
 and compensation for any loss, which he may have properly 
 incurred in the execution of his office {u). 
 
 Similarly, when an agency is founded on valuable consid- 
 eration, the agent who renounces it makes himself liable for 
 the loss which his principal may sustain thereby {v). 
 
 ■Without Authority. — If a person contracts, without au- 
 thority, in the name of another, that other may either repu- 
 diate the contract (w), [33] or, if he thinks fit, adopt and 
 enforce it ; but he must adopt it altogether : he cannot ratify 
 what is beneficial to himself and reject the remainder {x). 
 
 A person contracting as agent for a named principal, with- 
 out authority to do so, is liable upon an implied warranty of 
 authority ; but he cannot sue or be sued upon the contract, 
 unless the alleged principal could not have authorized it (_j/).i 
 The damages for the breach of warranty will be those directly 
 
 («) Roscoe, 532; Wavlow t/. Harri- 325; Krider v. Western College, 31 
 
 son, 29 L.J.Q.B. 14, 16; cf. Dart, 187. Iowa, 547; Southern Express Co. v. 
 
 (v) Story, Ag. § 478 ; [Thome v. Palmer, 48 Ga. 85 ; Babcock v. Deford, 
 
 Deas, 4 Johns. (N.Y.) 84; White v. 14 Kans. 408; Widner v. Lane, 14 
 
 Smith, 6 Lans. (N.Y.) 5.] Mich. 124; New England Ins. Co. v.Be- 
 
 (w) But owners of property should wolf, 8 Pick. (Mass.) 56, 63; Menkens 
 
 be careful how they leave their indicia v. Watson, 27 Mo. 163; Fowler v. New 
 
 of title in othe_r hands : Williams v. Bar- York Gold Exchange Bank, 67 N.Y. 138; 
 
 ton, 3 Bing. 143; Johnson 57. Credit Ly- Elwell v. Chamberlin, 31 N.Y. 611 ; 
 
 onnais Company, 3 C.P.D. 32; 47 L.J. Farmers' Loan & Trust Co. v. Wal- 
 
 C.P. 241. worth, I N.Y. 433; Benedict v. Smith, 
 
 {pc) Sm. Merc. Law, 151. [There 10 Paige (N.Y.) 126; Seago z/. Martin, 
 
 can be no ratification of a part only of 6 Heisk. (Tenn.) 308; Newall v. Hurl- 
 
 the transaction ; it is an adoption of the hurt, 2 Vt. 35 1; Saveland v. Green, 
 
 whole: Drennen v. Walker, 21 Ark. 40 Wise. 431.] 
 539; Henderson v. Cummings, 44 Ills. (/) See Poll. Con. 434-439. 
 
 [' " It is settled law that if a person honestly assume to act for another in 
 respect of a matter over which he has no authority, he renders himself liable to 
 an action; the action being sometimes said to be for the breach of an implied 
 warranty of authority, and in others for a false representation " : Bigelow's Lead- 
 ing Cases on Torts, 22, citing CoUen v. Wright, 8 EI. & B. 647; Randell v. 
 Trimen, 18 C.B. 786; Cherry v. Colonial Bank, L.R. 3 P.C. App. 24; Pow v. 
 Davis, I B. & S. 220; Spedding v. Nevell, L.R. 4 C.P. 212; Godwin v. Francis, 
 L.R. 5 C.P. 295; Richardson v. Williamson, L.R. 6 Q.B. 276; White v. Madison, 
 26 N.Y. 117, 124; Jefts J/. York, 4 Gush. 371; s.c, 10 id. 392; Bartlett z;. Tucker, 
 104 Mass. 336; Johnson v. Smith, 21 Conn. 627; Noyes v. Loring, 55 Maine, 
 408; McCurdy v. Rogers, 21 Wise. 197, 202. See also Newman v. Sylvester, 4^ 
 Ind. 106; Baltzen v. Nicolay, 53 N.Y. 467.] 
 
 43 
 
*34 AUTHORITY TO SELL [PART I. 
 
 arising from it (z) ; but in the case of real estate, although 
 the auctioneer who purports to sell, but has not sufficient 
 authority, will be condemned to pay all the expenses to 
 which the purchaser may have been put, and interest upon 
 the purchase-money, if it has been unproductive (a), the pur- 
 chaser cannot recover damages for his loss of a bargain (6). 
 Where the supposed principal denies the authority, and an 
 action is brought against him by the purchaser, which fails, 
 the purchaser may recover the costs from the agent (c) ; but 
 it would not be prudent to commence such an action without 
 notice to the agent, and inquiring whether he still persisted 
 that he had authority (d). 
 
 One who professes to contract as agent, but does not name 
 any principal, may sue and be sued upon the contract, if he 
 is in reality himself the principal (e). 
 
 [34] Effect of Exceeding Authority. — - When an agent has a 
 written authority, parties dealing with him upon the faith of 
 it are unaffected by private restrictions imposed upon him by 
 his principal, of which they have no notice (_/). When a 
 general agent exceeds the authority with which he is actually 
 clothed, his principal will be bound, if what the agent has 
 done ordinarily falls within the limits of that kind of employ- 
 ment which he exercises (^), and if notice has not been 
 given to the person with whom he deals that the principal 
 has limited his authority {/i)J 
 
 (z) Simons -'. Patchett, 7 E. & B. (rf) Sugd. 44. 
 
 568; 26 L.J.Q.B. 195. (^) Poll. Con. 439, 440. 
 
 (a) BrattK. Ellis, Jones z/. Dyke, Sugd. (/) Neeld v. Duke of Beaufort, 5 
 
 812,813; Gaby t/. Driver, 2 Y. & J. 549. Jur. U23; aff-ii^/' how. Beaufort (Duke) 
 
 {6) Sugd. 44, 237; and see the i/. Neeld, 12 C. & F. 24S; 9 Jur. S13. 
 judgment of Crompton, J., in CoUen v. (g) Edmunds v. Bushell, L.R. i 
 
 Wright, 7 E. & B. 314; 26 L.J.Q.B. Q.B. 97; 35 L.J.Q.B 20; Howard v. 
 
 147. As to goods, see Simons 7<. Patch- Sheward, L.R. 2 C.P. 148; 36 L.J.C.P. 
 
 ett, 7 E. & B. 568; 26 L.J.Q.B. 195.' 42; 2 St. Com. 65. 
 
 (c) Collen v. Wright, 8 E. & B. 647; (/i) CoUen v. Gardner, 21 Beav. 540; 
 
 27 L.J.Q.B. 215; 4 Jur. N.S. 357. Dart, 1S3; Leake, 474. 
 
 [' The principal will be bound by whatever is done by the agent within the 
 scope of the latter's apparent authority, as shown by the principal's usual course 
 of business or by the agent's accustomed performance of similar acts, with the 
 principal's knowledge and assent : Pardridge v. La Pries, 84 Ills. 51; St. Louis 
 Packet Co. v. Parker, 59 Ills. 23; Hazeltine v. Miller, 44 Maine, 177; Putnam v. 
 Home Ins. Co., 123 Mass. 324; Edwards !<. Thomas, 66 Mo. 46S; Franklin ■</. 
 Globe Ins. Co., 52 Mo. 461; Brooks v. Jameson, 55 Mo. 505; Wilcox v. Chicago 
 
 44 
 
CHAP. II.J 
 
 AND AGENCY GENERALLY. 
 
 35" 
 
 Any loss consequent upon an agent exceeding his authority- 
 will fall upon the agent (?) ' ; though, if a benefit result, he 
 must account for it to his employer (j). 
 
 The principal is even liable for the fraud of his agent, 
 where it consist of that which, if not fraudulent, would 
 have been within the scope of the agent's ordinary author- 
 ity(/^). 
 
 An agent's right to commission may be forfeited by his 
 fraud (/). 
 
 In an action for the proceeds of a sale, brought against an 
 auctioneer by his employer, the defendant is entitled to set 
 up the right and authority of a third person {m). 
 
 [35] When an act not apparently illegal is done by one per- 
 
 (2) Catlin V. Bell, 4 Camp. 183; 
 [Wiltz V. Morrell, 66 Barb. (N.Y.) 511. 
 If a receiver, through negligence or bad 
 faith, fails to receive the full value of 
 goods committed to him, he will be lia- 
 ble only for the real value thereof, and 
 not for probable or speculative profits : 
 Demain ». Cassidy, 55 Miss. 320.] He 
 will, however, be exonerated, if his de- 
 parture from his instructions be ratified 
 by his principal: Clarke v. Perrier, 
 Freem. Ch. 48 ; Prince v. Clarke, i B. 
 &C. 186; Sm. Merc. Law, 109; Chit. 
 Con. 196; [Bray v. Gunn, 53 Ga. 
 
 144]- 
 
 {f) See Sm. Merc. Law, 109, and 
 the cases there cited. [If one assumes 
 to sell the goods of another, and takes 
 in payment a note to himself, the owner 
 of the property cannot maintain an ac- 
 tion for goods sold and delivered against 
 the purchaser : Brigham v. Palmer, 3 
 Allen (Mass.) 450.] 
 
 {k) Swire V. Francis, 3 App. Cas. 
 106; 47 L.J.P.C. 18; Houldsworth v. 
 City of Glasgow Bank, 5 App. Cas. 317, 
 326; Dart, 181. 
 
 (/) See Chapter 11, post. 
 
 (jn) Biddle v. Bond, 6 B. & S. 225 ; 
 but not an adverse claim of which he 
 knew when he sold for the plaintiff: 
 Ex parte Davies, 19 Ch. D. 86; Cf. 
 Kingsman v. Kingsman, 6 Q.B.D. 122. 
 [On the principle that a bailee or agent 
 cannot dispute the original title of his 
 bailor or principal, Vosburgh v. Hunt- 
 ington, 15 Abbott Pr. (N.Y.) 254, an 
 auctioneer is not allowed to dispute the 
 title of the person for whom he has sold 
 goods, in an action against him for the 
 proceeds of the sale, Hutchinson v. Gor- 
 don, 2 Harr. (Del.) 179, or set up title 
 in himself, either as a bar to the action 
 or in reduction of damages, Osgood v. 
 Nichols, 5 Gray (Mass.) 420. But if an 
 adverse claim has been made, it has 
 been held that the plaintiff must prove 
 his title to the articles sold, and cannot 
 rely merely on the fact that he delivered 
 the goods to the auctioneer: Allen v. 
 Brown, 5 Mo. 323. See Lund v. Sea- 
 men's Bank, 37 Barb. (N.Y.) 129; s.c, 
 23 Howard Pr, (N.Y.) 258; Graff v. 
 Caldwell, 7 Rich. (So. Car.) 130.] 
 
 R.R. Co., 24 Minne. 269; Broadway Savings Bank v. Vorster, 30 La. Ann. 587; 
 Kerslake v. Schoomaker, 3 Thomp. & C. (N.Y.) 524; Grant v. Ludlow, 8 Ohio 
 St. I, 54; Friedlander v. Cornell, 45 Texas, 585.] 
 
 [' A special agent who is employed to sell lands at auction at a particular time 
 and place, and on certain terms, must strictly observe these limitations of his 
 authority: Thornton v. Boyden, 31 Ills. 200; Matthews v. Gilliss, I Iowa, 242; 
 Scott V. Rogers, 31 N.Y. 676.] 
 
 45 
 
*35 AUTHORITY TO SELL [PART L 
 
 son honestly and bond fide in compliance with the request 
 of another, a promise to indemnify may be inferred («). 
 
 If an auctioneer sells goods, having notice of want of title 
 in his principal, he will be responsible in damages to the real 
 owner (o) ; and, according to a recent decision, he will be 
 liable even without such notice (/>).' It is, therefore, often 
 more prudent for an auctioneer, before selling goods, to search 
 the register of bills of sale. If after sale, but before payment, 
 the real owner claims the money, the auctioneer cannot 
 afterwards maintain an action against the buyer, although 
 the latter has promised to pay on being allowed to take away 
 the goods and has taken them away {q) ; and if, having re- 
 ceived the deposit (r) or the price, he pays it over to his 
 employer, after notice that the title of the latter was bad, he 
 will be liable to the buyer for the money {s). 
 
 Negligence or Incompetence of Auctioneer. • — A person who 
 undertakes for reward any duty, employment or trust is under 
 an implied contract to act with all reasonable care, diligence 
 and ability {t). 
 
 («) Adamson v. Jarvis, 4 Bing. 56 ; Whether the principal is disclosed ap- 
 
 12 Moore, 241 ; Dugdale v. Levering, pears to be immaterial in this connec- 
 
 L.R. 10 C.P. 196; 44 L.J.C.P. 197. tion: see Ganly v. Ledwidge, LR. 10 
 
 [Stocking V. Sage, I Conn. 519 ; C.L. 33, 133. 
 
 Beach v. Branch, 57 Ga. 362; Avery v. {cf) Dickenson v. Naul, 4 B. & Ad. 
 
 Halsey, 14 Pick. (Mass.) 174; Rogers 639. A sale by auction is not per se 
 
 J/. Kneeland, loWend. (N.Y.) 219; Hill a sale in market overt: Lee v. Bayes 
 
 z/. Packard, 5 id. 375; Powell z;. New- (or Robinson), 18 C.B. 599; 25 L.J.C.P. 
 
 burgh, 19 Johns. (N.Y.) 284; Coventry 249; 2 Jur. N.S. 1093. 
 «;. Barton, 17 id. 142 ; Ramsay z*. Card- (?■) Burrough v. Skinner, 5 Burr, 
 
 ner, 11 id. 439; Maitland v. Martin, 85 2639. 
 Penn. St. 120.] {s) Peto v. Blades, 5 Taunt. 657. 
 
 (0) Hardacre z/. Stewart, 5 Esp. 104; (/) Chapman v. Walton, 10 Bing. 
 
 cf. Buller v. Harrison, 2 Cowp. 565. 57; 3 Moo. & S. 389; Story, Ag. §§ 182- 
 
 (/) Cochrane z/. Rymill, 40 L.T.N. S. 191. [Where the profession of the 
 
 744; 27 W.R. 776; cf. Foster v. Hoi- bailee implies skill, he is liable for the 
 
 lins, L.R. 7 H.L. 757; Taylor v. Mc- want of that skill as for gross neglect: 
 
 Keand, 5 C.P.D. 358; 49 L.J.C.P. 563; Stanton v. Bell, 2 Hawks (Nor. Car.) 
 
 Walker v. Clay, 49 L.J.C.P. 560; Davis 145. But an auctioneer, though an- 
 
 V. Artingstall, 49 L. J. Ch. 609; 42 swerable for gross negligence or for 
 
 L. T. N. S. 507; W. N. 1S80, p. 96. ignorance, will not be held responsible 
 
 [' An auctioneer who, though innocently, sells .stolen goods is liable to the 
 o.vner in trover therefor: Hoffman v. Carow, 22 Wend. (N.Y.) 2S5; s.c, 20 id. 
 21; Williams v. Merle, II id. 80. See also Hills v. Snell, 104 Mass. 173, 177; 
 Gilmore v. Newton, 9 Allen (Mass.) 171 ; Coles v. Clark, 3 Cush. (Mass.) 399; 
 Courtis V. Cane, 32 Vt. 232. But a mere agent who has restored the property or 
 
 46 
 
CHAP. II.] 
 
 AND AGENCY GENERALLY. 
 
 36* 
 
 The obligation of an agent to adhere strictly to his special 
 [36] instructions {u) ceases, so soon as his obedience would 
 involve a fraud upon third persons ; for no contract can 
 oblige a man to make himself an instrument of fraud {v). 
 
 When an agent not limited by instructions is prevented 
 from pursuing the accustomed course of business {w), he 
 should give notice of the fact to his principal {x). 
 
 An important part of an auctioneer's work is to take care 
 that the purchaser enters, where necessary, into a binding 
 contract under the Statute of Frauds (j/). 
 
 If an auctioneer employed to sell an estate be guilty of 
 such negligence, or use so little skill ' that the sale becomes 
 
 sale, deposits these proceeds in a bank 
 to his own credit, a court of equity will 
 enjoin him from applying them to his 
 own use, and will see that the principal 
 gets them in preference to the auc- 
 tioneer's general creditors. But if the 
 deposit was made with the knowledge 
 and assent of the principal, then equity 
 will not give the principal any prefer- 
 ence over the general creditors : Levy 
 u. Cavanagh, 2 Bosw. (N.Y.) 100.] 
 
 {x) Smith V. Lascelles, 2 T.R. 187; 
 Sm. Merc. Law, 108. 
 
 (^) Kavanagh v. Cuthbert, I.R. 9 
 C.L. 136; Peirce v. Corf, L.R. 9 Q.B. 
 210; 43 L.J.Q.B. 52. [An auctioneer 
 accepted a bid for a horse, but did not 
 ask for the name of the buyer. The 
 buyer was asked by the auctioneer to 
 come to the desk, but did not do so. 
 Afterwards, the auctioneer put up the 
 horse again, and sold him for less than 
 the amount of the first bid ; and it was 
 held that he must himself make up the 
 difference to the owner : Townsend v. 
 VanTassell, 8 Daly (N.Y.) 261.] 
 
 for an injury arising from his omission to 
 comply with the provisions of a statute 
 which had only recently been passed 
 and had not received judicial construc- 
 tion : Hicks v. Minturn, 19 Wend. 
 (N.Y.) 550. The agent is not to be 
 made liable for losses arising from his 
 mistake in a doubtful matter of law : 
 Marsh v. Whitmore, 21 Wallace, 178; 
 Mechanics' Bank v. Merchants' Bank, 6 
 Met. (Mass.) 13.] 
 
 (;«) See Story, Ag. § 192; Powell v. 
 Sadler, cited Paley, P. & A. 80; and 
 supra^ p. 24. 
 
 (v) Bexwell v. Christie, i Cowp. 
 
 395- 
 
 (w) See supra, p. 24; cf. Guerreiro 
 V. Peile, 3 B. & Aid. 616; and Brown v. 
 Staton, 2 Chit. 353, where an auctioneer 
 who delivered goods without receiving 
 the price was held liable on a declara- 
 tion for not giving an accurate account 
 of the full produce of the goods. [If an 
 auctioneer who has sold goods of his 
 principal, and is under an immediate 
 duty to pay over the proceeds of the 
 
 its proceeds to the person from whom he received it in good faith and without 
 notice of the claim of the real owner, will not be so liable : Spooner v. Holmes, 
 102 Mass. 503 ; Jacobs' Case, cited in 2 Bay (So. Car.) 84 ; Nelson v. Iverson, 
 17 Ala. 216.] 
 
 [' A sheriff or other person selling property on legal process will be liable for 
 any loss arising from his failure properly to discharge his duty : Johnson v, Reese, 
 31 Ga. 6oi; s.c, 28 Ga. 353; Strawbridge v. Clark, 52 Mo. 21 ; or if the sale is 
 under the control of the court, it may be set aside, and a resale ordered : Mobile 
 Cotton Press v. Moore, 9 Porter (Ala.) 679; Whitney v. Armstrong, 32 Iowa, 9; 
 
 47 
 
*-^J AUTHORITY TO SELL [PART I. 
 
 nugatory, he is not entitled to recover any compensation for 
 his trouble {z) ; if he negligently misdescribe the property, 
 he will be liable to make good to the vendor the amount of 
 compensation which the latter has had to pay to the pur- 
 chaser in respect of such misdescription {a) ; and an agent 
 may be liable in nominal damages for a breach of duty from 
 which no actual loss has resulted to his employer {b). 
 
 A contract duly entered into by an agent is not avoided 
 by his neglecting to communicate it to his principal (c). 
 
 [37] An agent is as much responsible for those whom he 
 employs under him as for himself (d). 
 
 The auctioneer's right to indemnity and remuneration 
 forms the subject of a separate chapter (e). 
 
 (a) Deneww. Daverell, 3 Camp.451; [Bank of Kentucky v. Adams Express 
 
 see 2 Sm. L.C. 27; cf. Jones v. Nanney, Co., 93 U.S. 174; Kent z>. Dawson Bank, 
 
 McCle. 25; 13 Price, 76; also Chit. Con. 13 Blatchford, 237; Taber v. Perrott, 2 
 
 514; Sm. Con. 180. Gallison, 565; Swett 1', Southworth, 125 
 
 («) Parker I/. Farebrother, I C.L.R. Mass. 417; Williams i/. White, 70 Maine, 
 
 323; and see Sm. Merc. Law, 108. 138; Laverty v. Snethen, 68 N.Y. 522; 
 
 (i) Hibbevt w. Bayley, 2 F. & F. 48. Pownall v. Blair, 78 Penn. St.403; Jlor- 
 
 (f) Wright V. Bigg, 15 Beav. 592; gan z*. Tener, 83 Penn. St. 305; Walker 
 
 cf. Heyman v. Neale, 2 Camp. 338. v. Walker, 5 Heisk. (Tenn.) 425.] 
 
 (rf) Lord North's Case, 2 Dy. 161 A.; (?) Chapter XIL, ^w/. 
 
 Piel V. Brayer, 30 Ind. 332; Marsh ■v. Ridgway, 18 Abbott Pr. (N.Y.) 262; 
 American Ins. Co. v. Oakey, 9 Paige (N.Y.) 259; Cravens v. Wilson, 48 Texas, 
 324. Any fraud or combination between the officer making the sale and the pur- 
 chaser will render the sale void, whether made regularly or irregularly : Denn v. 
 Murphy, I N.J. Law (Coxe) iii; Jones v. Fulgham, 2 Murph. (Nor. Car.) 364; 
 Morris v. Allen, 10 Ired. Law (Nor. Car.) 203. And e converse a resale will be 
 ordered if misrepresentations were made by the sheriff, though innocently, induc- 
 ing higher bids: Horton v. Moyers, 25 Ga. S9; Reed :'. Diven, 7 Ind. 189; 
 Mulks v. Allen, 12 Wend. (N.Y.) 253; and the same rule will be applied against 
 the purchaser, if the misrepresentation was to his advantage : Woodward v. Bul- 
 lock, 27 N.J. Eq. 507. But if the sheriff has authority to make and complete the 
 sale, a failure on his part to perform his duty, though it may make him liable, will 
 not impair the title of a bond Jide purchaser at his sale: Sullivan v. Hearnden, 11 
 Ga. 294; Solomon v. Peters, 37 Ga. 251 ; Sanders v. Norton, 4 T.B. Mon. (Ky.) 
 464; Caldwell v. Blake, 69 Maine, 458; Ludden v. Kincaid, 45 Maine, 411; 
 Outcalt V. Disborough, 3 N.J. Eq. (2 Green) 214; Newton v. State Bank, 14 
 Ark. 9; Bearfield v. Stevens, I Harp. Ch. (So. Car.) 52; Howard v. North, 5 
 Texas, 290. And a mere stranger cannot avail himself of the sheriffs irregularity : 
 HoUowell V. Skinner, 4 Ired. Law (Nor. Car.) 165. If the sheriff has sold regu- 
 larly and without fraud, he will be under no liability, however inadequate a price 
 may be realized: Lynch v. Commonwealth, 6 Watts (Penn.) 495; Swires v. 
 Brotherline, 41 Penn. St. 135. If both the sheriff and the purchaser are guilty of 
 fraud in the sale, it is absolutely void; but not so if the sheriff alone acts fraudu- 
 lently: Kean v. Newell, I Mo. 754; Inskeep v. Lacony, I N.J. Law (Coxe) 39.] 
 
 48 
 
CHAP. III.] APPRAISEMENTS AND VALUATIONS. 38-39* 
 
 [38] 
 CHAPTER III. 
 
 APPRAISEMENTS AND VALUATIONS.! 
 
 Auctioneers as Appraisers. — Auctioneers are frequently 
 called upon to act as appraisers, not only as a preliminary 
 step to their auction-sales, but also in cases where they are 
 not employed to sell by auction. It is, therefore, the duty, 
 as it will always be to the advantage, of every auctioneer to 
 make himself well acquainted with the theory and practice of 
 surveying, valuing and appraising the different kinds of real 
 and personal property {a). 
 
 As to Appraiser's Licence. — A person acting as an appraiser {b) 
 without a licence incurs a penalty of ;^50 (c). But a licence 
 to act as an auctioneer is a licence to act as an appraiser 
 also {d). The [39] 7th section of 46 Geo. III. c. 43, enacts 
 
 (a) It would be out of place in a logarithms the reader is referred to 
 
 worlc like the preseiit to attempt to give Rouse's Practical Man. ^ 
 
 full instructions for the efficient per- (i) That is, as a person bearing the 
 
 formance of this part of an auctioneer's known character of an appraiser : At- 
 
 duty, especially as nothing but a long kinson v. Fell, 5 M. & S. 240. 
 course of observation and experience (f) An appraiser's licence is an an- 
 
 can make a good appraiser. But, with nual one and is subject to a duty of £2.. 
 
 a view to rendering the book as gen- See 46 Geo, III. c. 43, ss. 4-6; and 8 
 
 erally useful as possible, brief rules and & 9 Vict. c. 76, s. 1, Appendix, /w/, pp. 
 
 tables for estimating the value of the de- 390, 391. 
 
 scriptions of property most commonly (</) Cf. ante, p. 14. By 24 & 25 
 
 submitted to the hammer are inserted in Vict. c. 21, ss. 11, 13, a licensed house 
 
 the Appendix. See post, pp. 441 et seq. agent may act as appraiser, and vice 
 
 For simple directions as to the use of versa, without additional licence. 
 
 [' In many States it is required that property shall be appraised before being 
 sold on execution or under process of law. If such a law is regarded as merely 
 directory, then the officer's sale and deed, though made without appraisement, will 
 pass the title ; but if the officer's power to sell is made to depend upon his con- 
 formity to this requirement, then his sale made without appraisement will be void, 
 and will pass no title to the purchasers at his sale : Gantley v. Ewing, 3 Howard, 
 707, 716, 717. The decisions on this subject in the different States depend so 
 much upon their own statutes and the peculiarities of the local practice, that it is 
 not thought to be advisable to attempt to state them here. They will be found 
 referred to with considerable fulness in Mr. Rorer's treatise on Judicial Sales, 
 § 839 et «?.] 
 
 49 
 
*40 APPRAISEMENTS [PART I. 
 
 that " all persons who shall be duly licensed according to law 
 to act as auctioneers shall and may act as appraisers without 
 taking out any other licence " {e) ; and 8 & 9 Vict. c. •/&, s. i, 
 by which the present duty is imposed on persons exercising 
 the calling or occupation of an appraiser, expressly exempts 
 licensed auctioneers from the duty (/). 
 
 It is a good defence to an appraiser's claim for work and 
 labour that he was not duly licensed {g). 
 
 The Stamp Act, 1870, requires every appraiser, under a 
 penalty of ;^50, to write out every appraisement or valuation 
 which he makes, upon duly stamped material, within fourteen 
 days after making it ; and any one taking from an appraiser 
 an appraisement not written out and stamped in accordance 
 with the act incurs a forfeiture of ;£^20 {k). But it is impor- 
 tant to observe that appraisements and valuations are ex- 
 empted from the necessity of a stamp, and, consequently, of a 
 formal document, in the following cases, viz. : — 
 
 (i.) When made for the information of one party only, 
 [40] and not in any manner obligatory between 
 parties (i) ; 
 (2.) When made by order of a court of admiralty ; 
 (3.) When made for the purpose of ascertaining the 
 amount of legacy or succession duty payable upon 
 property (j). 
 
 {e) Steposi, p. 391. the value of goods, and nothing more, 
 
 (/) -^^'^'^- =in appraisement stamp upon the written 
 
 (g) Palk V. Force, 12 Q.B. 666; 17 valuation was held to be sufficient, with- 
 
 L.J.Q.B. 299; 12 Jur. 797; decided on out an award stamp : Leeds ^'. Burrows, 
 
 demurrer; cf. Leake, 744. As to auc- 12 East, I; cf. Perkins 7/. Potts,2 Chit. 399. 
 
 tioneer, see ani^, p. 9. (i) This exemption was not expressly 
 
 (''') 33 & 34 Vict. c. 397, s. 38. For contained in any of the former acts 
 
 the text of this section, and the scale of granting duties on appraisements; but, 
 
 duties imposed by the act, s. 3 and nevertheless, it was held, before the 
 
 schedule, su6 Ht. "Appraisement," see passing of 33 & 34 Vict. c. 97, that a 
 
 Appendix, pp. 406, 423, post. valuation made for the information of 
 
 A broker called to prove the value parties and not intended to be binding 
 
 of goods need not produce an inventory on them was not liable to an appraise- 
 
 written on an appraisement stamp : ment stamp, though an agreement was 
 
 Stafford v. Clark, I C. & P. 24, 25. afterwards founded on its data: Jack- 
 
 An award stamp is not necessary, un- son v. Stopherd, 2 C. & M. 361 ; 4 Tyrw. 
 
 less there be a submission of differences 330; cf. Atkinson v. Fell, 5 M. & S. 240. 
 
 to the appraiser; and, therefore, where (7) 33 & 34 Vict. c. 97, s. 3 and 
 
 there was a reference to appraisers as to schedule, sub tit. " Appraisement "; see 
 
 50 
 
CHAP. III.] AND VALUATIONS. 4I 
 
 # 
 
 It is evident that an appraisement made for the mere pur- 
 pose of preparing particulars and conditions of sale will fall 
 within the first of the above exemptions {k). 
 
 Appraisement sometimes Hequired by Laiw. — There are some 
 descriptions of property, such as goods distrained for rent (/), 
 and estates and effects seized under extents (;;<), which it is 
 not lawful to sell without a previous appraisement (;/) ; but 
 even where no such legal obligation [41] exists, the auctioneer 
 will always find a personal inspection and valuation a satis- 
 factory step to take, preparatory to the holding of an auction. 
 Without, at least, a general knowledge of the value of the 
 property to be disposed of, he will find it impossible to do 
 justice to his employer. He will find a preliminary valuation 
 more particularly useful, when, as frequently happens, it 
 devolves upon him to fix the reserved price, below which the 
 property is not to be sold. 
 
 It is not unusual, on sales by auction of real estate, to 
 require the purchaser to take fixtures, timber, stock and other 
 articles at a valuation, in addition to the price at which a lot 
 is knocked down. This is commonly made the subject of a 
 special condition of sale, providing for the manner in which 
 the valuation shall be made {o). But as such conditions tend 
 to discourage biddings, owing to the uncertainty of the amount 
 which may have to be paid, and as disputes frequently arise in 
 
 Appendix, post, p. 423. The 34 & 35 (k) Trustees for sale should always 
 
 Vict. c. 103, s. 26, exempts from stamp ascertain the value of the property which 
 
 duty "an appraisement or valuation of they are empowered to sell; and they will 
 
 property of a deceased person, made for be justified in going to the expense of a 
 
 the information of an executor or other valuation, where circumstances seem to 
 
 person required to record in any com- render such a course expedient : Sugd. 
 
 missary court in Scotland an inventory 60 ; Lewin, 389 ; Dart, 79. So also 
 
 of the estate of such deceased per- with trustees for purchase, and receivers 
 
 son." of the property of liquidating debtors : 
 
 {k") A stamp is necessary upon a Lewin, 452; Ex parie Gotion, 'L.K. 20 
 
 valuation required by the Tithe Commu- Eq. 291. [A valuation hy commission- 
 
 tation, Copyhold or Inclosure Acts : see ers of property to be sold will not be set 
 
 31 & 32 Vict. c. 89, ». 2. aside merely because they afterwards 
 
 (/) See posty p. 279. become dissatisfied with their own valu- 
 
 (»«) A writ of extent is issued for ation, unless it appears that they acted 
 
 the purpose of enforcing execution on under some mistake : Spencer v. Carter, 
 
 behalf of the Crown : see Broom, C.L. 4 Hen. & Munf. (Va.) 402.] 
 204; 3 St. Com. 669. For form of such (0) See post, p. 93. 
 
 writ, see West on Extents, 55. 
 
 SI 
 
*42 APPRAISEMENTS [pART I. 
 
 carrying them into effect (/), it is better, if possible, to have 
 the valuation made before the sale, in which case a fixed sum 
 can be inserted in the conditions as the price at which the 
 supplementary article is to be taken. 
 
 General Obligations of Appraiser. — It is a question how far 
 an unskilful and incorrect appraiser is entitled to recover his 
 fees and expenses. If a person undertakes to perform a work 
 of skill and labour, and fails therein, so that his employer de- 
 rives no benefit from his work, he is not entitled to recover 
 anything for his trouble {q). If a surveyor delivers an esti- 
 mate greatly below the sum at which work can be done, and 
 thereby induces a private person to undertake what he other- 
 wise would not undertake, he cannot recover ; but it is not a 
 [42] trifling deviation from an estimate that will prevent a 
 party from recovering (r). A man should not estimate a work 
 at a price at which he would not contract for it (s). 
 
 Like every other paid agent, an appraiser must use due 
 care and diligence in the performance of his duty {i) ; and he 
 must not be content to go upon the information of others, 
 even though referred to them by his employer {ic). 
 
 Amount of his Remuneration. — As regards the amount of 
 remuneration for making a valuation properly, it is, perhaps, 
 in every case a question for the jury whether the charge 
 made is a reasonable one for the service rendered {v). Where 
 
 (/) See I Chit. Prac. 829, 830; Dart, skill and ordinary diligence; and he is 
 
 221, 222; Leake, 639, 705, 958, 1135. consequently liable for injuries to his 
 
 (7) Duncan v. Blundell, 3 Stark. 6; employer occasioned by the want of rea- 
 
 [Story on Agency, § 331]. sonable skill, and also for ordinary neg- 
 
 (/-) Moneypenny v. Hartland, 2 C. ligence. By reasonable skill we are to 
 
 & P. 378, 381. undei-stand such as is, and no more than 
 
 {s) Ibid. By an old statute of 1 1 is, ordinarily possessed and employed by 
 Edw. 1., the Statute of Acton Burnel, persons of common capacity, engaged in 
 appi'aisers valuing extended goods too the same trade, business, or employ- 
 highly were compelled to take them at ment. By ordinary diligence we are to 
 their own valuation. But this interest- understand that degree of diligence 
 ing specimen of the lex talionis has re- which persons of common prudence are 
 cently disappeared from the Statute accustomed to use about their own busi- 
 book : Stat. Law Rev. Act, 1863. ness and affairs." Story on Agency, 
 
 if) Moneypenny v. Hartland, i C. & § 183.] 
 P. 352; Turner v. Goulden, L.R. 9 C.P. («) Moneypenny v. Hartland, 2 C. 
 
 57. [" As the contract of agency is one & P. 378. 
 for the benefit of both parties, the agent {v) Cf. Ch. XII., post. 
 
 is understood to contract for reasonable 
 
 5^ 
 
CHAP. ni.J AND VALUATIONS. 43* 
 
 a surveyor, who had measured building work and settled the 
 tradesmen's bills, claimed 5 per cent, upon the sums allowed 
 to the tradesmen, and evidence was offered that it was the 
 imiform practice of surveyors to charge that rate of commis- 
 sion, Lord Kenyon, C.J., is reported to have said that the 
 plaintiff was entitled to reasonable compensation for his 
 trouble, but was not to estimate it by the money laifl out by 
 the defendant in finishing his building (x). But in a later 
 case Lord Ellenborough, C.J., left it to the jury to say whether 
 a commission of 5 per cent, upon the amount expended was a 
 reasonable sum to be charged by a surveyor for superintend- 
 ing alterations in buildings, there being evidence that that 
 mode of charging was customary (j/). 
 
 [43] Appraisers appointed by the high bailiff of a County 
 Court, to value goods, under 9 & 10 Vict. c. 95, s. 106, are 
 entitled, out of the produce, to sixpence in the pound on the 
 value of the goods, over and above the stamp duty (z). 
 
 {x) Upsdell V. Stewart, Peake, N.P. charge five guineas a day for attending 
 
 C. 193. in the House of Commons during the 
 
 (7) Chapman v. De Tastet, 2 Stark, progress of a l^ill. 
 294. In Moneypenny z/. Hartland, 2 C. (z) See post, pp. 250, 251. As to 
 
 & P. 378, Best, C.J., appears to have charges on an appraisement under a dis- 
 
 thought that a surveyor might fairly tress, see /m^, p. 281. 
 
 S3 
 
*44 PARTICULARS [pART I. 
 
 [44] 
 CHAPTER IV. 
 
 PARTICULARS AND CATALOGUES. 
 
 Definition of Particulars and Catalogues. — On all sales by 
 auction, except where the property is of trifling value, a 
 description of the thing to be sold is reduced into writing ; 
 and such description, when it relates to real property, or 
 property of the nature of realty, is called the " Particulars of 
 Sale," and when it refers to personal effects sold in lots, is 
 designated a " Catalogue " {a). 
 
 In preparing particulars great care should be taken to use 
 appropriate terms. ' The language employed should be clear 
 and unambiguous ; because, if there be any reasonable doubt 
 as to the meaning of the particulars, they will be construed 
 strictly against the vendor (b). 
 
 Not Affected by Verbal Declarations of Auctioneer. — More- 
 over, as a general rule, they cannot be contradicted, varied, 
 or added to, by any verbal declarations of the auctioneer made 
 
 (o) Advertisements are generally pub- J. Ch. 643, 647; aff. L.R. 8 Ch. 118; 42 
 
 lished in the newspapers, announcing L.J. Ch. 177. 
 
 the time and place of sale, and subject ((5) Dart, 109; Symons i'. James, I 
 
 of sale, and stating to whom to apply for Y. & C.C.C. 487; Rhodes v. Ibbetson, 
 
 further information. They generally 4 De G. I\L & G. 787; 23 L.J. C3i. 459; 
 
 give, either the particulars in full, or an Cruse v. Nowell, 2 Jur. N.S. 536; 25 L. 
 
 epitome of them. See specimens, /wi", J. Ch. 709; Smith v. Ellis, 14 Jur. 682. 
 
 pp. 292, 293. Particulars and conditions In these cases the ambiguity appeared 
 
 should be circulated before the sale, or on the conditions; but the principles on 
 
 at any rate in the sale-room : Torrance which they were decided are equally 
 
 V. Bolton, L.R. 14 Eq. 124, 132; 41 L. applicable to particulars. 
 
 [' The auctioneer's memorandum should exactly describe the property, the 
 price, and the terms of sale. If his description is so vague that the lots struck off 
 cannot be designated out of a larger number offered for sale, the sale will not be 
 binding upon either party : Bonner v. Baker, 8 La. Ann. 283. Real estate offered 
 for sale on e,\ecution should be described sufficiently to inform bidders just what 
 property is offered for sale, that a sacrifice may be avoided, to the injury of either 
 debtor or creditor : State v. Kidder, 49 Mo. 548. See Hoffman v. Anthony, 6 
 R.I. 282.] 
 
 54 
 
CHAP. IV.] AND CATALOGUES. 45* 
 
 at the time of sale.' As was said by Lord 45] Ellenborough, 
 C.J., in a case before him : " Men cannot tell what contracts 
 they enter into, if the written conditions of sale are to be 
 controlled by the babble of the auction-room " (c).^ The 
 reason of the rule is that evidence cannot be given of a parol 
 variation of a written contract.^ 
 
 Exceptions. — But, although evidence of such verbal decla- 
 rations is inadmissible at law on behalf of either plaintiff or 
 defendant, and in Equity on behalf of the plaintiff, such evi- 
 dence is admissible in Equity on behalf of the defendant to 
 an action for specific performance (d). The ground on which 
 
 (f) Jones V. Edney, 3 Camp. 285, Clowes, i5Ves. 516; Clowes t/. Higgin- 
 
 287; where the reading the lease at the son, i V. & B. 524; and the same ap- 
 
 sale was held no excuse for misstating plies between an original purchaser and 
 
 the terms of the lease in the particulars : his sub-purchaser : Shelton v. Livius, 2 
 
 approved in Flight v. Booth, i Bing. N. C. & J. 411; i L.J. Ex. 139. The op- 
 
 C. 370, 379; 3 L.J.C.P. 66. eration of a written agreement may, 
 
 (^) Dart, 1 10; Gunnis z*. Erhart, i however, be suspended by a contempo- 
 
 H. Bl. 290; Greaves v. Ashlin, 3 Camp, raneous oral agreement : Wallisz/. Little, 
 
 425; Hogg V. Snaith, I Taunt. 347; 11 C.B.N.S. 369; 31 L.J.C.P. loo; and 
 
 Powell V. Edmunds, 12 East, 6; Ford v. see/oj/. Chap. VIII. 
 Yates, 2 Man. & G. 549; Higginson v. 
 
 [' See Wright v. Deklyne, Peters C.C. 199; Rodman v. Zilley, \ N.J. Eq. 
 (Saxt.) 320; Rankin v. Matthews, 7 Ired. Law (Nor. Car.) 286; Cannon v. 
 Mitchell, 2 Desau. (So. Car.) 320; Grantland v. Wright, 2 Munf. (Va.) 179.] 
 
 [' The description in the advertisement binds both the vendor and the pur- 
 chaser; and neither can insist on anything said by the auctioneer at the sale which 
 in any way varies or adds to the printed conditions of the sale or the description 
 of the property: Layton v. Hennen, 3 La. Ann. i. Accordingly the purchaser 
 at an auction sale of a plantation and its «tock will not be allowed to show that 
 certain articles formed a part of his purchase if it appears that they were not em- 
 braced either in the printed advertisement or in the inventory read at the sale : 
 Davidson v. Lallande, 12 La. Ann. 826. But the right of the auctioneer to explain 
 at the sale the advertisement of his sale was maintained in Rankin v. Matthews, 
 7 Ired. Law (Nor. Car.) 286 ; and in Lee v. Hester, 20 Ga. 588, it was held that 
 the bidders at an executor's public sale of land were bound by his public procla- 
 mation at the sale restricting the quantity of the land offered, whether they heard 
 it or not.] 
 
 [' Parol evidence to vary the terms of a written agreement is no more admis- 
 sible in equity than at law: Carr v. Duval, 14 Peters, 77; Tayloe v. Riggs, i 
 Peters, 591; Timberlake i/. Parish, 5 Dana (Ky.) 350, 351, 352; Harrison v. 
 Talbot, 2 id. 258, 259; Pew v. Livodais, 3 La. (Miller) 459; Evelefh v. Wilson, 
 15 Maine, 109; Brown v. Haven, 12 Maine (3 Fairfield) 164; Bradbury v. 
 White, 4 Greenl. (Me.) 391; Elysville Manuf. Co. v. Okisko Co., i Md. Ch. 
 Dec. 392 ; Ridgway v. Bowman, 7 Cush. 268 ; Dwight v. Pomeroy, 1 7 Mass. 303 ; 
 Livingston v, Byrne, 1 1 Johns. (N.Y.) 555 ; Steere v. Steere, 5 Johns. Ch. (N.Y.) 
 l; Movan v. Hays, i id. 339; Pitcher v. Hennessy, 48 N.Y. 415; Stevens v. 
 
 55 
 
*46 PARTICULARS [PART I. 
 
 this exception to the general rule proceeds may be stated in 
 the words of Lord Langdale, M.R. : "Where fraud, mistake 
 or surprise cannot be established without evidence, Equity 
 will allow a defendant to a bill for specific performance to 
 support a defence founded upon any of those grounds by 
 evidence dehors the agreement " {e). 
 
 Where an auctioneer has, at the sale, made a parol declara- 
 tion at variance with the particulars, the practical application 
 of the rule would appear to be as follows. If the variation is 
 in favour of the vendor, the vendor cannot enforce specific 
 performance with the variation, nor, on the other hand, can 
 the purchaser enforce specific performance [46] without the 
 variation. If the variation is in favour of the purchaser, the 
 purchaser cannot enforce specific performance with the varia- 
 tion, nor, on the other hand, can the vendor enforce specific 
 performance without the variation (/). 
 
 Parol evidence is admissible to explain the subject-matter 
 of a written agreement, although not to vary its terms {g). 
 And, in a recent case, it has been decided that a plaintiff 
 
 {/) Manser v. Back, 6 Hare, 443, out insisted on his construction of the 
 
 448. contract; Manser v. Back, 6 Hare, 443, 
 
 (y") WooIIam V. Ream, 7 Ves. 21 1 ; where defendant (the vendor) was per- 
 2 W. & T. L.C. 464 ; and the following mitted to give evidence of a parol varia- 
 cases, among others, there cited : Hig- tion, although the plaintiff (the pur- 
 ginson v. Clowes, 13 Ves. 516; Winch chaser) did not hear the auctioneer 
 w. Winchester, I V. & B. 375; Marquis make it; Snelling v. Thomas, L.R. 17 
 Townshend v. Stangroom, 6 Ves. 328; Eq. 303; 43L.J. Ch. 506; [Glass x'. Hul- 
 Price I/. Ley, 4 Giff. 235 ; aff. 32 L.J. Ch. bert, 102 Mass. 24]. As to effect of part 
 530; Ramsbottom v. Gosdon, I V. & B. performance, see fios/. Chap. X. 
 165; London & Birmingham Ry. Co. v. (^) Ogilvie i'. Foljambe, 3 Mer. 53; 
 Winter, I Cr. & Ph. 57; Wood i/. Scarth, Macdonald v. Longbottom, I E. & E. 
 2 Kay & J. 33; Martin v. Pycroft, 2 De 987; 29 L.J.Q.B. 256; and see Pember 
 G. M. & G. 785; 22 L.J. Ch. 94, where v. Mathers, i Bro. Ch. 52; cf. Leake, 
 plaintiff submitted to variation being 196 f/j^-y./ and see /«/, Chap. VIH.; 
 made in favour of defendant; Clowes v. [Gray v. Harper, I Story C.C. 574; Pike 
 Higginson, I V. & B. 524, where plain- j/.Fay, loi Mass. 134; Caulkins tj. Hell- 
 tiff was refused specific performance with man, I4plun. (N.Y.) 330; Hartz/. Ham- 
 the variation, because he had through- mett, 18 Vt. 127]. 
 
 Cooper, I Johns. Ch. (N.Y.) 425 ; Carter v. Hamilton, 11 Barb. (N.Y.) 147; Chet- 
 wood J'. Brittan, 2 N.J. Eq. (l Green) 439; Rankin v. Matthews, 7 Tied. Law 
 (N.C.) 286; Knight v. Bunn, 7 Ired. Eq. (Nor. Car.) 77; Church v. Church, 4 
 Yeates (Penn.) 280; Dupree v. McDonald, 4 Desau. (So. Car.) 209; Wainwright 
 V. Read, i id. 573; Richardson v. Thompson, i Humph. (Tenn.) 151; Towner v. 
 Lucas, 13 Gratt. (Va.) 705; Hakes v. Hotchkiss, 23 Vt. 231, 232.] 
 
 5(5 
 
CHAP. IV.] AND CATALOGUES. 47* 
 
 purchaser may give evidence of parol declarations made by 
 the auctioneer at the sale, when such declarations do not 
 contradict the particulars or conditions, but are merely col- 
 lateral to the contract {h). 
 
 And the same rules apply to catalogues, whenever the 
 contract has been reduced into writing. But, as a contract 
 for the sale of goods need not, in certain cases, be in writing («), 
 it may happen that the contract is by parol. In such a case 
 verbal declarations made by the auctioneer [47] would be 
 admissible in evidence on behalf of either party {k). 
 
 Particulars and Conditions form Terms of Contract. • — The par- 
 ticulars are generally printed together with the conditions on 
 which the sale is to be made (if not printed together they 
 should be made explicitly to refer to one another) (/), and the 
 two together become part of the contract of sale ; it being 
 customary, on the close of the biddings, for the purchaser 
 merely to agree, by a short memorandum (;«), which is usually 
 annexed to, or endorsed on, the particulars and conditions, 
 to purchase the property as described in the particulars, sub- 
 ject to the conditions. 
 
 Distinction betvreen Particulars and Conditions. — The dis- 
 tinction between particulars and conditions has been stated 
 as follows by Malins, V.-C, in Torrance v. Bolton («) : " The 
 
 (/4) Brett z/. Clowser, 5 C.P.D. 376; which were read at the sale, and in which 
 cf. Leake, 188. [This case was decided it was stated that the property was sub- 
 on the ground that the principal, adopt- ject to mortgages, and was misled by the 
 ing the bargain made by his agent, must advertised particulars, which he had 
 be bound by the representations made read, to believe that he was buying an 
 by his agent. The .cases on this subject absolute reversion, and not a mere equity 
 are fully cited in Benjamin on Sales, 3d of redemption ; and it was held that he 
 Am. Ed. § 455, n.u.] was not bound by the contract, James, 
 
 (i) As to what contracts must, and L.J., saying that the description in the 
 
 what need not, be in writing, see Jiost, particulars was improper, insufficient. 
 
 Chap. VIII. and not very fair. The case falls within 
 
 (/') Eden z/. Blake, 13 M. & W. 614; the principle that a bargain induced 
 
 14 L.J. Ex. 194. by material misrepresentations of fact, 
 
 (/) Kenworthy v. Schofield, 2 B. & though made under mistake, will be an- 
 
 C. 945; and /oi/, Chap. VIII.,/3OT«. nulled in equity. See Doggett z/. Emer- 
 
 (?«) For forms of memorandum, see son, 3 Story, C.C. 700; Daniel i'. Mitch- 
 
 post, Part II. ell, id. 172; Hough v. Richardson, 3 id. 
 
 (») L.R. 14 Eq. 124, 130; 41 L.J. 659; Warner I/. Daniels, i Woodbury & 
 
 Ch. 643; afF. L.R. 8 Ch. 118; 42 L.J. M. C.C. 90; Smith v. Babcock, 2 id. 
 
 Ch. 177. [In this case, the purchaser, 246; Smiths. Richards, 13 Peters, 26; 
 
 being deaf, did not hear the conditions, Brooks v. StoUey, 3 McLean, C.C. 523; 
 
 57 
 
*48 PARTICULARS [PART I. 
 
 proper office of the particulars is to describe the subject-mat- 
 ter of the contract, that of the conditions to state the terms 
 on which it is sold." This distinction has not always been 
 observed ; but should be carefully born in mind, for, as was 
 held in the above-mentioned case, the omission from the par- 
 ticulars of a fact which ought to be stated in them is not 
 necessarily remedied by a statement of it, however explicit, 
 in the conditions ; unless, indeed, it can be shown that the 
 purchaser's attention was expressly directed to it. 
 
 Particulars should Contain Faithful Description of Property. — 
 Speaking generally, the particulars should contain a faithful 
 description of the property to be sold,i with an exact account 
 of its liabilities and incumbrances, and " should be so framed 
 as to convey clear information to the ordinary class [48] of 
 persons who frequent sales by auction " [o). When the prop- 
 erty has passed by deed or writing, the description of it 
 
 Sherwood v. Salmon, 5 Day (Conn.) party is injured and another benefitted, 
 
 439; Coe v. Turner, 5 Conn. 86; Kyle maybe a sufficient cause for setting aside 
 
 V. Kavanagh, 103 Mass. 356; Spurr v. the sale.] 
 
 Benedict, 99 Mass. 463; Walker 2'. Den- (<;) Dykes v. Blake, 4 Bing. N.C. 
 
 ison, 86 Ills. 142; Parkam v. Randolph, 463, 476; 7 L.J.C.P. 2S2; approved in 
 
 4 How. (Miss.) 435; Champlin v. Lay- Gibson v. D'Este, 2 Y. & C.C.C. 542; 8 
 
 tin, 18 Wend. (N.Y.) 407; S.C, 6 Paige Jur. 94, 98; rev. sub «oot. Wilde v. Gib- 
 
 (N.Y.) 189; Rosevelt v. Dale, 2 Cow. son, iH.L.C. 605; 12 Jur. 527. It may 
 
 (N.Y.) 129; S.C, 5 Johns. Ch. (N.Y.) be taken that the courts will, in general, 
 
 174; Lewis V. McLemore, 10 Yerg. construe the language used in the sense 
 
 (Tenn.) 206. But the purchaser's mis- in which it would be understood by such 
 
 take in a matter of law will not entitle persons : Waring v. Hoggart, Ry. & M. 
 
 him to a rescission of the contract : 39. [A slight mistake in the description 
 
 Hayes v. Stiger, 29 N.J. Eq. 196, though of the property will not invahdate the 
 
 in Hey v. Schooley, 7 Ohio, 373, it was sale, if it is sufficiently certain to identify 
 
 held that a misapprehension of the terms the property to be sold, and no one is in 
 
 of sale under a decree, by which one fact misled: Pollard z;. King, 63 Ills. 36.] 
 
 [' See Bonner v. Baker, 8 La. Ann. 283. A sheriff's or trustee's sale will not 
 be upheld unless the property was described sufficiently to identify the land, and 
 prevent the sale of one lot and the conveyance of another, and also to give to 
 bidders a reasonable means of knowing what land was to be sold, so that they 
 might form some estimate of its value : Newman v. Jackson, 12 Wheaton, 570; 
 Dearmond t/. Courtney, 12 La. Ann. 251; Reeside i/. Peter, 33 Md. 120; Gris- 
 wold V. Fuller, 33 Mich. 268 ; Stephenson v. January, 49 Mo. 465 ; Frasher v. 
 Ingham, 4 Nebraska, 531 ; Laverty v. Moore, 33 N.Y. 658; Gibbs v. Thompson, 
 7 Humph. (Tenn.) 179; Schmidt v. Mackey, 31 Texas, 659. The same rules 
 will be applied to a sheriff's sale of personal property: Crandall v. Blen, 13 Calif. 
 15; Ainsworth 1/. Greenle, 3 ^Murph. (Nor. Car.) 470. But if the judgment- 
 creditor purchases the property, he cannot avail himself of the misdescription in 
 
 58 
 
CHAP. IV.J AND CATALOGUES. 49* 
 
 should correspond in effect with the parcels in the written 
 document ; but it is not necessary, or desirable, to adopt the 
 formal language used in the deeds. 
 
 If there be the least doubt about the title or identity of 
 the estate, or if the estate be one of any considerable mag- 
 nitude, proper legal advice should be resorted to before the 
 particulars are issued. In fact, in all but the simplest cases, 
 it would be advisable to submit the draft particulars to the 
 solicitor, unless he has given information as to all the points 
 that should be mentioned ; and where no solicitor is employed, 
 the auctioneer should submit them to his principal {p). 
 
 Matters to be Noticed in Particulars. — In drawing particulars 
 the following matters ought to be noticed {q) : — 
 
 (i.) If the subject of the sale is land, i.e., "any interest 
 in any messuages, lands, tenements or hereditaments 
 of whatever tenure," the particulars, or the condi- 
 tions (r), should state whether such land will be 
 sold without reserve, or subject to a reserved price, 
 or whether a right to bid is reserved {s). If such 
 a statement should not be made, the sale would 
 probably be treated as without reserve (t). 
 
 (2.) [49] The character of the property, whether a house 
 or land, or both ; its quantity and situation and, 
 sometimes, its boundaries.^ 
 
 (/) An auctioneer who is guilty of of these points, see/oi/, pp. 60 et seq. 
 negligence in drawing particulars may {r) Generally the conditions: see 
 
 forfeit his right to payment for his ser- post, p. 90. 
 vices : see ante, p. 36. {/) 30 & 31 Vict. ^. 48, s. 5. 
 
 {if) For fuller information on some (/) Dart, 113; ci. post. Chap. VII. 
 
 the levy to relieve himself from completing his purchase : Spang v. Schneider, 10 
 Penn. St. 193.] 
 
 [' A sheriffs sale of three thousand acres of land, without any further descrip- 
 tion, is void for uncertainty, since there is no way of determining what three 
 thousand acres are intended : Pemberton v. McRae, 75 Nor. Car. 497. And see 
 Deloach v. State Bank, 27 Ala. 437; Hughes v. Streeter, 24 Ills. 647; Marma- 
 duke V. Tennant, 4 B. Mon. (Ky.) 210; Shield v. Batts, 5 J. J. Marsh. (Ky.) 
 12. But in Shields v. Harrison, 77 Nor. Car. 115, it was held, on the principle 
 that id certum est quod certum reddi potest, that an allegation on the part of the 
 purchaser at a judicial sale that the boundaries of the land could not be furnished 
 with any accuracy might be ground for ordering a survey to locate and identify 
 the land, but furnished no sufficient cause for setting aside the sale until some such 
 attempt had been made.] 
 
 59 
 
*50 PARTICULARS [PART I. 
 
 (3.) The tenure. 
 
 (4.) The nature of the tenancy, if the property is let, as to 
 period, unusual covenants, &c. 
 
 (5.) The annual income, if any, from rental, or a fair esti- 
 mate thereof. 
 
 (6.) The rights or claims of other parties, subject to which 
 the property is to be sold; e.g., mortgages, ease- 
 ments, such as rights of way, incidental rights of 
 of common, fishery, &c. 
 
 (7.) Unusual outgoings, if any. 
 
 (8.) The time and place of sale, and by whom the sale is 
 to be conducted {u). 
 
 (9.) It is often thought desirable to add "unless previ- 
 ously disposed of by private contract." Although 
 an auctioneer is not liable to pay damages to an 
 intending purchaser, if property advertised is not 
 put up {v), in fairness, some notice should be given, 
 if any lot is likely to be withdrawn. 
 (10.) [50] The parties to whom appUcation is to be made 
 for particulars and conditions and for a view of the 
 property. 
 (II.) When the property consists of, or includes, land, it 
 will often be found convenient to append to the 
 particulars a plan with the dimensions properly 
 marked and all rights of way &c. known to exist 
 clearly shown. Great care must be taken that the 
 plan, if referred to in the particulars, is accurate, 
 
 («) Although the auctioneer need Christie, i Cowp. 395 ; cf. Coppin v. 
 
 not name his principal (but see post, Craig, 7 Taunt. 243. If the name or a 
 
 Chap. VI.), sometimes the name is men- description of the principal does not ap- 
 
 tioned on the particulars. If the prin- pear on the particulars or conditions, it 
 
 cipal is described as selling in any par- should be stated in the agreement or 
 
 ticular capacity, care should be taken memorandum ; see post. Chap. VIII. 
 
 that such capacity should be accurately p. 150. 
 
 described : Webb v. Kirby, 7 De G. M. (v) Harris v. Nickerson, L.R. 8 Q.B. 
 & G. 376; [s.c, 3 Sm. & Giff. 333]; 26 286; 42 L.J.Q.B. 171; 21 W.R. 636; 28 
 L.J. Ch. 145. When the goods of L.T.N.S. 410. As to the elTect of a wil- 
 another person have been sent in to be fully false misrepresentation in this con- 
 sold together with the principal lot, it nection, see Richardson v. Sylvester, L. 
 seems that the auctioneer ought to state R. 9 Q.B. 34; 43 L.J.Q.B. I ; and post, 
 the fact, ifhis principal's name appears on p. 11 5, note, 
 the particulars or catalogue : Eexwell v. 
 
 60 
 
CHAP. IV.] AND CATALOGUES. 5 1* 
 
 and, if a scale of measurements be marked on it, 
 that the measurements are correct. (See infra, 
 pp. 80 et seq.) 
 
 Effect of Misstatement or Misdescription. — In drawing par- 
 ticulars, the use of flowery descriptions and ambiguous expres- 
 sions is to be avoided {w) ; fairness and accuracy are to be 
 observed, and nothing left to inference {x) ; " for it is the duty 
 of every person truly and honestly to represent that which he 
 has to sell " {y), and the effect of a material misstatement or 
 misdescription is, either to invalidate the sale, or to entitle 
 the purchaser to compensation.' 
 
 If the misdescription be wilful and designed, it amounts to 
 fraud ; and fraud, upon general principles of law, renders a 
 contract voidable {z). 
 
 [51] Gross Misdescription, Accompanied by Gross Negligence. 
 — And where there is a gross misdescription, accompanied by 
 gross negligence on the part of the vendor, it seems that 
 fraud may be inferred ; for, when the seller has the means of 
 knowledge, a duty is imposed on him to use due diligence [a). 
 
 (w) Taylor v. Martindale, i Y. «S: C. Standish, 48 Vt. 594; Hall v. Fullerton, 
 
 C.C. 658. 69 Ills. 448; Catling v. Newell, 9 Ind. 
 
 (-r) Swaisland K. Dearsley, 29 Beav. 572,578. If the vendor of land sold at 
 
 430, 436; 30 L.J. Ch. 652; Coverly -u. public auction has misdescribed its 
 
 Burrell, 5 B. & Aid. 257 ; Tomkins v. quality, the purchaser may insist upon a 
 
 White, 3 Smith, 435; Clowes v. Higgin- conveyance with a proper abatement of 
 
 son, I V. & E. 524. price: Harbers v. Cadsden, 6 Rich. Eq. 
 
 (j/) Per Abbott, C.J., in Waring v. (So. Car.) 284.] 
 
 Hoggart, Ry. & M. 39, 40; and see Lord (a) Sugd. 31, commentingon Wright 
 
 Ellenborough's remarks in Tomkins v. v. Wilson, 6 C. & P. 734, n.; i Moo. & 
 
 White, 3 Smith, 435, 439, to the effect R. 207; Attwood v. Small, 6 CI. & Fin. 
 
 that a little more fairness on the part of 232, 395; Denny v. Hancock, L.R. 6 
 
 auctioneers in framing their particulars Ch. I ; Hart v. Swaine, 7 Ch. D. 42 ; 
 
 would avoid many inconveniences. 47 L.J. Ch. 5. The onus of proof lies 
 
 {z) Flight V. Booth, I Bing. N.C. on the purchaser, the presumption of 
 
 370; 3 L.J.C.P. 66; Duke of Norfolk ••.'. law being against fraud: see Jones v. 
 
 Worthy, I Camp. 337 ; Schneider v. Clifford, 3 Ch. D. 779, 793; 45 L.J. Ch. 
 
 Heath, 3 Camp. 506; Mostyn v. West 809, 815; 24 W.R. 979. [A statement 
 
 Mostyn Coal & Iron Co., I C.P.D. 145; of the situation and quality of the land 
 
 45 L.J.Q.B. 401; post, Chap. X.; [Mat- in an advertisement of a sale by auction 
 
 teson V. Holt, 45 Vt. 336; Boughton z/. was held to contain the particulars with 
 
 [' The contract will not be enforced if the purchaser has been led bona fide to 
 believe that he was purchasing something different from what the vendor was 
 selling: Baxendale v. Seale, 19 Beav. 601; Bostwick i/. Lewis, i Day (Conn.) 
 «B3, 250; Norton v. Hathaway, id. 255; Pringle v. Samuel, I Litt. (Ky.) 43; 
 
 61 
 
"52 
 
 PARTICULARS 
 
 [part I. 
 
 Material Misdescription, -whether Ground for Avoiding Con- 
 tract or for Compensation. — And even where there is no proof 
 of fraud, wilful or constructive, if there be a misdescription 
 or suppression of importance, of such a character as not to 
 be a fair subject for compensation, the contract cannot be 
 enforced, even though there be the usual condition that errors 
 and misdescriptions shall not annul the sale (b). And a mis- 
 representation in a slight degree may prevent the vendor 
 from obtaining specific performance, although not such as 
 would entitle the [52] purchaser to rescind the contract and 
 to have the conveyance executed in pursuance of it can- 
 celled (c). There is great difficulty in laying down any 
 
 which the vendor was bound to comply; 
 and the contract was rescinded for his 
 inability to do so, in Thomas v. Todd, 3 
 Litt. (Ky.) 337, and in Hutcheon ii. 
 Johnson, 33 Barb. (N.Y.) 392.] 
 
 (*) Wall V. Stubbs, i Madd. 80 
 Price V. Macaulay, 2 De G.M. & G. 339 
 Dobell V. Hutchinson, 3 A. & E. 355 
 5 N. & M. 251 ; I H. & W. 394; Cover- 
 ley V. Burrell, 5 B. & Aid. 257; Stevens 
 V. Adamson, 2 Stark. 422; Ballard u. 
 Way, I M. & W. 520; Robinson v. 
 Musgrove, 8 C. & P. 469; 2 Moo. & R. 
 92, where Tindal, C.J., said that, if 
 
 art V. Andrews, stated in Taylor v. 
 Fleet, 4 Barb. (N.Y.) 105; or where 
 the purchaser learned for the first time 
 when a deed was tendered to him that 
 a strip of land was excepted from the 
 conveyance of the premises for which 
 he had been the highest bidder : Millin- 
 gar V. Daly, 56 Penn. St. 245.] In 
 Wright V. Wilson, i Moo. & R. 207, 6 
 C. & P. 734, n., Parke, J., ruled that, 
 where misdescription originated in error 
 only, the purchaser was bound; and in 
 Mills V. Oddy, 6 C. & P. 728, he appears 
 to have been of the same opinion. 
 
 property was sold at auction under a These were, however, decisions at nisi 
 
 description which was untrue and calcu- 
 lated to entrap persons coming into the 
 auction-room, the sale was void : Lord 
 Brooke v. Rounthwaite, 5 Hare, 298; 
 15 L.J. Ch. 332; 10 Jur. 656; Tomkins 
 V. White, 3 Smith, 439; Granger v. 
 Worms, 4 Camp. 83; Waring v. Hog- 
 gart, Ry. & M. 39; Denny v. Hancock, 
 L.R. 6 Ch. I ; Jones v. Clifford, 3 Ch. 
 D. 779; 45 L.J. Ch. 809; Jonesi/. Rim- 
 mer, 14 Ch. D. 588; 49 L.J. Ch. 775; 
 Turner v. Turner, W.N. iS8i, 70; Kin- 
 naird v. Smith, W.N. 1881, 82. [As 
 where land was described as bounded 
 on a street sixty-six feet wide, which 
 was really only eleven feet wide : Stew- 
 
 prius, and the current of authority is 
 the other way; see Sugd. 31. Nor is it 
 an answer to say that the purchaser 
 might have found out the misrepresen- 
 tation; Cox V. Middleton, 2 Drew. 209; 
 23 L.J. Ch. 618; In re Arnold, 14 Ch. 
 D. 270, 281. As to the effect of such a 
 clause in the conditions as is alluded to 
 in the text, see/M/, p. io5. 
 
 {c) Cadman v. Horner, 18 Ves. 10; 
 Clermont v. Tasburgh, i Jac. & W. 112; 
 cf. Savage v. Brocksopp, 18 Ves. 335; 
 Mortlock V. Buller, 10 Ves. 292. There 
 is considerable doubt as to whether, in 
 the absence of fraud, a purchaser is en- 
 titled to compensation for a misrepre- 
 
 Kyle V. Kavanagh, 103 Mass. 356; Spurr v. Benedict, 99 Mass. 463; Western 
 R.R. Co. V. Babcock, 6 Alet. (Mass.) 346. If it appears that one lot of land has 
 been advertised and another sold on an execution, it is proper for the court to set 
 aside the sale : Mason v. Thomas, 24 Ills. 285.] 
 
 62 
 
CHAP. IV.] AND CATALOGUES. 53* 
 
 certain and definite rule to determine what amount of mis- 
 statement or misdescription in tlie particulars will justify a 
 rescission of the contract, and what will be ground for com- 
 pensation only." Tindal, C.J., in Flight v. Booth {d), states 
 the following broad principle : " Where the misdescription, 
 although not proceeding from fraud, is in a material and sub- 
 stantial point, so far affecting the subject-matter of the con- 
 tract that it may reasonably be supposed that but for such 
 misdescription the purchaser might never have entered into 
 the contract at all, in such case the contract is avoided 
 altogether, and the purchaser is not bound to resort to the 
 clause for compensation." ^ And in a subsequent case it was 
 laid down that, if the misrepresentation be one that can be 
 made good, the vendor may obtain specific performance on 
 making it good; but, if it cannot be made good, or if the 
 vendor [53] refuses to make it good, the purchaser who is 
 deceived may rescind the contract, if the misrepresentation 
 was material, and he was misled thereby. The misrepre- 
 sentation may consist as much in the suppression of what is 
 
 sentation after conveyance executed, also the remarks of Plumer, M.R., in 
 
 Jessel, M.R., In re Turner & Skelton, KnatchbuU v. Grueber, i Madd. 153, 
 
 13 Ch. D. 130; 49 L.J. Ch. 114, held 167. In Leach t). MuUett, 3 C. & P. 115, 
 
 that he was; and see observations by 117, Best, C.J., observed that " auc- 
 
 Hall, V.-C, in Jones v. Clifford, 3 Ch. D. tioneers ought to be narrowly watched, 
 
 779f 792; 45 L.J. Ch. 809; 24 W.R. 979; lest, under the idea of mistake, they may 
 
 but Malins, V.-C, in Manson v. Thack- cover material matters." As to the effect 
 
 er, 7 Ch. D. 620; 47 L.J. Ch. 312; and of omitting from the particulars mention 
 
 in Allen v. Richardson, 13 Ch. D. 524; of a fact which ought to have been 
 
 49 L.J. Ch. 137; followed by Denman, stated, see Torrance v. Bolton, L.R. 14 
 
 J., in Brett v. Clowser, 5 C.P.D. 376; Eq. 124; 41 L.J. Ch. 643; aff. L.R. 8 
 
 held that he was not. Ch. 118; 42 L.J. Ch. 177; and ante, 
 
 {cf) I Bing. N.C. 370, 377; and see p. 47. 
 
 [• See Seymour v. Delancey, 6 Johns. Ch. (N.Y.) 222; King v. Bardeau, 6 
 Johns. Ch. (N.Y.) 38.] 
 
 \^ Only a fair agreement will be specifically enforced : Carr v. Duval, 14 Peters, 
 77; Kendall v. Almy, 2 Sumner C.C. 278; Modisett w. Johnson, 2 Blackf. (Ind.) 
 431 ; Crane v. Decamp, 21 N.J. Eq. (6 C. E. Green) 414; Nichols v. Williams, 
 22 N.J. Eq. (7 C. E. Green) 63; Seymour v. Delancey, 3 Cow. (N.Y.) 445; s.c, 
 6 Johns. Ch. (N.Y.) 222; German v. Machin, 6 Paige (N.Y.) 288; Acker v. 
 Phcenix, 4 Paige (N.Y.) 305; Nellis v. Clark, 20 Wend. (N.Y.) 24; Clement 
 V. Reid, 9 Sm. & M. (Miss.) 535; Fuller v. Perkins, 7 Ohio, 196 (546); Fisher 
 V. Worrall, 5 Watts & S. (Penn.) 478; Patterson v. Martz, 8 Watts (Penn.) 374.] 
 
 63 
 
*53 PARTICULARS [pART I. 
 
 true as in the assertion of wliat is false, but it must be a 
 representation giving occasion to the contract (e). 
 
 Ambiguity. — Ambiguity in the particulars may in some 
 cases be fatal to the contract.' " If it appears upon the evi- 
 dence that there was in the description of the property a 
 matter on which a person might dond fide make a mistake, 
 and he swears positively that he did make a mistake, and his 
 evidence is not disproved, this Court cannot enforce speci- 
 fic performance " (_/). Where an estate was sold in lots, 
 and the particulars stated that the timber on two of the lots 
 was to be taken at a valuation, and one of the conditions 
 specified generally that the timber was to be taken at a 
 valuation, Sir William Grant, M.R., said that, supposing that 
 the condition applied to all the lots, the express statement in 
 the particulars as to two of them was so likely to mislead the 
 purchaser as to the meaning of the condition that it would be 
 inequitable to enforce specific performance of the contract {g). 
 
 Specific Performance Refused against Vendor on Ground of 
 Mistake. — Specific performance has been refused against a 
 vendor, where, by a mistake on the part of the auctioneer, 
 the particulars on which the agreement was endorsed included 
 property which the vendor never intended to be sold (Ji) ; 
 
 {e) See judgment of Romilly, M.R., (/) Per Romilly, M.R., in Svvais- 
 
 in Pulsford v. Richards, 17 Beav. 87,95, land v. Dearsley, 29 Beav. 430, 433; 30 
 
 96; Blenkhorn «<. Penrose, 29 W.R, 236. L.J. Ch. 652; approved per Baggallay, 
 
 [SeeMcFerranj/. Taylor, 3 Cranch, 270; L.J.,inTamplin v. James, 15 Ch.D.215, 
 
 Smith V. Babcock, 2 Woodbury & M. 218; see also Taylor z'. Martindale, i Y. 
 
 C.C. 246; Tuthill V. Babcock, id. 298; & C.C.C. 658; Manser v. Back, 6 Hare, 
 
 Hammatt v. Emerson, 27 Maine, 326, 443. 
 
 327 ; Stone v. Denny, 4 Met. (Mass.) {g) Higginson v. Clowes, 15 Ves. 
 
 151; Brown z/. Castles, 1 1 Cush. (Mass.) 516; cf. Jones z'. Rimmei-, 14 Ch.D. 588; 
 
 348; Boynton v. Hazelboom, 14 Allen 49 L.J, Ch. 775. 
 
 (Mass.) 107; Newell v. Horn, 45 N.H. (/;) Manser -'. Back, 6 Hare, 443. 
 
 421 ; Hanson v. Edgerly, 29 N.H. 343; In this case an alteration had been made 
 
 Stevens v. Fuller, 8 N.H. 463; Rosevelt in the particulars, but the altered copies 
 
 V. Fulton, 2 Cow. (N.Y.) 134; Lewis v. were first produced in the sale-room. 
 
 McLemore, 10 Verger (Tenn.) 206; They were read by the auctioneer, but 
 
 Howard v. Gould, 28 Vt. 524; Paddock it did not appear that the purchaser 
 
 V. Strowbridge, 29 Vt. 470.] knew of the alteration. Subsequently 
 
 [' If an auctioneer sells one lot of land to a purchaser who, in good faith and 
 without fault on his part, supposes that he is buying another lot, there is no sale, 
 because the minds of the parties have not met on the subject-matter : Sheldon v. 
 Capron, 3 R.I. 171.] 
 
 64 
 
CHAP. IV.J 
 
 AND CATALOGUES. 
 
 54* 
 
 [54] but the mistake must be with reference to a matter 
 which, if there were no mistake, would not be a proper sub- 
 ject for compensation (?) ; and the vendor will be liable to 
 make good any expense which his mistake may have occa- 
 sioned the purchaser (k). The Court will even rectify the 
 conveyance, if the parties can be put in the same position as 
 before the conveyance was executed (/). 
 
 Parol Evidence Admissible to Rebut Allegation of Mistake. — 
 But if a purchaser seeks to avoid the contract, or claims 
 compensation, on the ground of mistake, it is competent to 
 the vendor to adduce parol evidence to show that the pur- 
 chaser had been personally informed of the misdescription in 
 the particulars, or had had the ambiguity explained to him ; 
 for, if he have bought with full information, he will be held to 
 his bargain (m). Thus, it may be proved that the purchaser. 
 
 the auctioneer signed the agreement in- Jones, L.R. 15 Eq. 279; 42 L.J. Ch. 468. 
 
 advertently on one of the original par- 
 ticulars. Cf. Day V. Wells, 30 Beav. 
 220; 7 Jur. N.S. 1004, where specific 
 performance was refused against the 
 vendor on the ground that there had 
 been some misunderstanding and mis- 
 take between him and the auctioneer as 
 to the reserved price. [See James v. 
 State Bank, 17 Ala. 69; Solinger v. Jew- 
 ett, 25 Ind. 479; Gilroy I'. Alls, 22 Iowa, 
 174; Snedaker v. Moore, 2 Duvall (Ky.) 
 542; Spurr V. Benedict, 99 Mass. 463; 
 Wuesthoff V. Seymour, 22 N.J. Eq. (7 C. 
 E. Green) 66; Cuff v. Dorland, 50 Barb. 
 (N.Y.) 438; White v. Williams, 48 Barb. 
 (N.Y.) 222.] In Webster v. Cecil, 30 
 Beav. 62, where the vendor offered to 
 sell an estate for ;^i,ioo, which figure he 
 had reached by a wrong addition, in- 
 stead of ;^2,ioo, specific performance 
 was refused to the purchaser. But where, 
 on the sale of an estate by order of the 
 Court, the purchaser of one of the lots 
 agreed to take the timber at the price 
 named by (he auctioneer, and from that 
 price by mistake was omitted the value 
 of the timber on a portion of the lot, it 
 was held that the purchaser was entitled 
 to hold the property without submitting 
 to a valuation of the timber : Griffiths v. 
 
 (i) McKenzie v. Hesketh, 7 Ch. D. 
 675, 680; 47 L.J. Ch. 231. 
 
 (i) Calverley v. Williams, I Ves. 
 209; White V. Cuddon, 8 CI. & Fin. 766; 
 cf. Dart, 742 €^ seq. Semble, a mistake 
 in the particulars, not arising from the 
 neglect of the vendor, may entitle him 
 to compensation from the purchaser : 
 see Leslie v. Thompson, 9 Hare, 268; 
 20 L.J. Ch. 561; 15 Jur. 717; Dart, 645 
 ei seq. 
 
 (/) Harris v. Pepperell, L.R. 5 Eq. 
 I; [and that, though it do not appear 
 that the mistake was mutual, as is ordi- 
 narily necessary : Andrews v. Essex Ins. 
 Co., 3 Mason, C.C. 6, 10; Shay v. Pettes, 
 35 Ills. 360; Stockbridge Iron Co.!*. Hud- 
 son River Iron Co., 102 Mass. 45 ; Sawyer 
 z/. Hovey, 3 Allen (Mass.) 331; Canedy 
 V. Marcy, 13 Gray (Mass.) 373; Durant 
 V. Bacot, 13 N.J. Eq. 201 ; Green v. Mor- 
 ris&EssexR.R. Co., i2N.J.Eq.(lBeas.) 
 165 ; Nevius v. Dunlap, 33 N.Y. 676 ; 
 Schettiger v. Hopple, 3 Grant (Pa. Cas.) 
 54; Long V. Weller, 29 Graft. (Va.) 347; 
 Brown v. Lamphear, 35 Vt. 252]. 
 
 (m) Farebrother v. Gibson, i De G. 
 & J. 602; Gunnis v. Erhart, i H. Bl. 
 290; Pember v. Mathers, i Br. Ch. 52; 
 Ogilvie V. Foljambe, 3 Mer. 53; God- 
 
 65 
 
^55 
 
 PARTICULARS 
 
 [part I. 
 
 [55] before the sale, perused the lease referred to in the 
 particulars, and that such lease explained the ambiguity («). 
 And, in the absence of fraud, it may be shown that the pur- 
 chaser tested the accuracy of the particulars, as by inspecting 
 the property, and did not rely upon the representation made 
 to him {o) ] unless the misrepresention be of such a nature 
 as not to be apparent on a personal inspection (/). " If there 
 appear on the particulars no ground for the mistake, if no 
 man with his senses about him could have misapprehended 
 the character of the parcels, then I do not think it is sufficient 
 for the purchaser to swear that he made a mistake, or that 
 he did not understand what he was about " {q). Where prop- 
 erty correctly described on the particulars and plan was 
 bought by the purchaser, who was well acquainted with the 
 property and did not look at the plan, under the impression 
 that certain other premises, which had thitherto been occu- 
 pied along with it, were also included, specific performance 
 was decreed against him (r). 
 
 dard v. Jeffreys, W.N. 1881, 160. [See 
 Wright V. Dekline, Peters, C.C. 199; 
 Farmers' Bank 11. Martin, 3 Md. Ch. 
 Dec. 224; Thompson z/. Kelly, lOI Mass. 
 291; Schuyler v. Russ, 2 Caines (N.Y.) 
 202; Wainwright v. Read, I Desau. (So. 
 Car.) 573.] 
 
 («) Bradshaw v. Bennett, 5 C. & P. 
 48 ; [Wood V. Martin, 65 Barb. (N.Y.) 
 241]. But if the lease contradicts the 
 particulars, and the terms of the lease 
 are more favourable to the purchaser, 
 the vendor is bound by the description 
 in the lease : Dart, 120; Bentley v. Cra- 
 ven, 1 7 Beav. 204. 
 
 {0) Attwood V. Small, 6 CI. & Fin. 
 232, 338; Clapham v. Shillito, 7 Beav. 
 146; Jennings v. Eroughton, 17 Beav. 
 234; 5 De G. M. & G. 126; Dyer v. 
 Hargrave, 10 Ves. 505 ; Redgrave v. 
 Hurd, 20 Ch. D. i. [If the truth as to 
 false representations can be ascertained 
 by the exercise of ordinary vigilance, 
 they will not afford ground of relief: 
 Mooney v. Miller, 102 Mass. 217, 220; 
 Brown I/. Castles, n Cush. (Mass.) 348.] 
 
 (/) Denny z'. Hancock, L.R. 6 Ch. I. 
 
 66 
 
 (^) Per Romilly, M. R., in Swais- 
 land V. Dearsley, 29 Beav. 430, 433 ; 30 
 L.J. Ch. 652; approved per Baggallay, 
 L.J., in Tamplin v. James, 15 Ch. D. 
 215, 218. But specific performance was 
 refused in Malins v. Freeman, 2 Keen, 
 25, where a person employed to bid for 
 another, by mistake, purchased one of 
 two lots that were offered for sale, think- 
 ing that he was bidding for the other. 
 In such a case the Court would now 
 probably compel the purchaser to pay 
 damages to the vendor : see the obser- 
 vations of the L. JJ. in Tamplin v. James, 
 u!>i supra. [Equity will refuse to inter- 
 fere in favor of either party where their 
 minds did not meet as to the subject 
 matter which was sold. See James v. 
 State Bank, 17 Ala. 69; Solinger v. 
 Jevvett, 25 Ind. 479; Gilroy v. Alls, 22 
 Iowa, 174; Snedaker v. Moore, 2 
 Duvall (Ky.) 542; Spurr v. Benedict, 
 99 Mass. 463; Cuff V. Dorland, 50 Barb. 
 (N.Y.) 438; White V. Williams, 48 
 Barb. (N.Y.) 222; Wuesthoff v. Sey- 
 mour, 22 N.J. Eq. (7 C. E. Green) 66.] 
 
 (r) Tamplin v. James, ttbi supra. 
 
CHAP. IV.J AND CATALOGUES. 56* 
 
 Errors should be Rectified before Sale. — If it should be dis- 
 covered that there is any omission, [56] misdescription or am- 
 biguity in the particulars, they should be carefully amended, 
 and pains taken that only corrected copies are distributed (s). 
 If time does not admit of this being done, notice of the error 
 should be distinctly given to the bidders, and the ambiguity 
 clearly explained, and the auctioneer should not merely read 
 out the altered particulars (t). The purchaser's attention 
 ought to be called to the alteration, which should be embodied 
 in the memorandum, before it is signed («). 
 
 Unimportant Variations not Fatal. — Trifling and unimportant 
 variations in the description of an estate are not fatal to the 
 contract,! jf t^g transaction be fair, especially if there be the 
 usual condition providing that errors and misdescriptions 
 shall not annul the sale (x). Mere loose and indefinite ex- 
 pressions, such as ought to put a person on his guard, are 
 not necessarily fatal (j). Where the particulars of sale of an 
 advowson stated that " a voidance of this preferment is likely 
 to occur soon," without stating the reasons which rendered 
 it probable, it was held that the representation was so vague 
 that it ought to have put the purchaser on making inquiry, 
 
 [The mere mistake of one who has the 1180. For the effect of such a condi- 
 
 means of knowledge is net a sufficient tion, see pos^, Chap. V. 
 ground for equitable relief: Davis v. (ji) Scott v. Hanson, i Russ. & M. 
 
 Parker, 14 Allen (Mass.) 94.] 128; I Sim. 13; Jennings z/. Broughton, 
 
 (i) See Fife v. Clayton, 13 Ves. 546. 17 Beav. 234; 5 De G. M. & G. 126; 
 
 [See Thompson W.Kelly, ioiMass.29l.] Dimmock v. Hallett, L.R. 2 Ch. 21, 27, 
 
 {() Manser </. Back, 6 Hare, 443, 29. [A statement in an advertisement 
 
 446. of a sale by auction, describing the 
 
 («) Shelton v. Livius, 2 C. & J. 41 1, buildings upon the land as being in 
 
 416; I L.J. Ex. 139; Page !<. Cowasjee good repair, with running water to house 
 
 Eduljee, L.R. i P.C. 127. and barns, does not necessarily imply 
 
 (x) Calcraftw. Roebuck, I Ves. 221; that the source of the water belongs to 
 
 White w. Bradshaw, 16 Jur. 738; Cud- the vendor: Wells v. Day, 124 Mass. 
 
 den V. Cartwright, 4 Y. & C. 25; 4 Jur. 38.] 
 
 [' Chandler v. Cook, 2 McArthur (D.C.) 176; Gray v. Shaw, 14 Mo. 341; 
 Jensen v. Winlander, 25 Wise. 477; Stephenson v. January, 49 Mo. 465. A slight 
 overstatement of the frontage in the advertisement of a lot of land sold at auction 
 for a gross sum will not entitle the purchaser to relief from his contract : Shields 
 V. Thompson, 4 Baxter (Tenn.) 227. The general rule is discussed in Noble v. 
 Googins, 99 Mass. 231; postea, p. 64, note x. A misstatement of a survey in the 
 advertisement of a sheriffs sale was not allowed to prejudice the purchaser at the 
 sale, in Shanbhut v. Milton, 7 Minna. 506. But see Ware v. Johnson, 55 Mo. 
 SCO.] 
 
 67 
 
*57 PARTICULARS [PART I. 
 
 and specific performance was decreed against hiim {z). Nor 
 will a purchaser be allowed to take advantage of a mistake by 
 which he is not prejudiced {a). [57] "The principle is that, 
 if he gets substantially that for which he bargains, he must 
 take a compensation for a cfeficiency in value," {b) ; for "it is 
 impossible that all the little particulars relative to the quan- 
 tity, title, situation &c. should be so specifically laid down as 
 not to call for some allowance and consideration, when the 
 bargain comes to be executed " (c). But the leaning of the 
 courts is against the vendor, especially if he had the means of 
 giving a correct description and neglected to do so {d). "The 
 particulars are, in truth, like the description in a policy of 
 insurance ; the purchaser knows nothing but what the seller 
 communicates " (<?) ; and he has a right to presume that the 
 seller is acting bond fide and has used due diligence. 
 
 Puffing Statements. — As a general rule, mere expressions 
 of praise, or affirmations of value, provided that they do not 
 amount to an actual misstatement of facts, will not render 
 the contract voidable by the purchaser ;i although their ten- 
 dency would doubtless be to indispose the court to enforce 
 specific performance at the suit of the vendor (/). Where 
 
 (z) Trower i/.Newcome, 3Mer. 704. (c) .R?r Thurlow, L.C., in Calcraft 
 
 (a) Leach v. MuUett, 3 C. & P. 1 15, v. Roebuck, i Ves. 221, 224. 
 117; Wright V. "Wilson, 6 C. & P. 734, («') In Calverleyz/. WiUiams, i Ves. 
 
 n.; I Moo. & R. 207; of. Sugd. 31; 209, Thurlow, L.C., at p. 212, says: 
 
 [Davis z/. Evans, 62 Ala. 401 ;] or of "Any person, however unconversant 
 
 which he is aware : Colby o. Gadsden, with the actual situation of his estate, 
 
 34Beav. 416. that will give a description, must be 
 
 (J>) Per Grant, M.R., in Dyer v. bound by that, ii'hether conusant of it 
 
 Hargrave, 10 Ves. 505, 507. [The or not." Cf. Schneider v. Heath, 3 
 
 vendor must make good his false repre- Camp. 506. [See Reed v. Hornback, 
 
 sentation as to matters which, if true, 4 J.J. Marsh. (Ky.) 375; Graham •'. 
 
 would materially add to the value of the Hendren, 5 Munf. (Va.) 1S5.] 
 property : Parham v. Randolph, 4 How. (r) Per Lord EUenborough, C.J., in 
 
 (Miss.) 435; Bradley v. Bostley, i Barb. Tomkins v. White, 3 Smith, 435, 439. 
 Ch. (N.V.) 125.] (/) See Dart, 99, 100. 
 
 [' Simplex commendatio non obKgat. See Dugan v. Carlton, I Pike (Art.) 31 ; 
 Righter v. Roller, 31 Ark. 170; Ives v. Carter, 24 Conn. 392, 403; Miller v. Craig, 
 36 Ills. 109; Cronk v. Cole, 10 Ind. 485; Hammatt v. Emerson, 27 Maine, 308; 
 Cross V. Peters, I Creenl. (Me.) 376, 3S9; Cooper v. Levering, 106 Mass. 77, 79; 
 Mooney v. Miller, 102 Mass. 217; Manning v. Albee, 11 Allen (Mass.) 520, 522; 
 Hemraer v. Cooper, 8 Allen (Mass.) 334; Veasey v. Doton, 3 Allen, 3S0; Gordon 
 V. Parmelee, 2 id. 212; Medbury v. Watson, 6 Met. (Mass.) 246; Hazard v. Irwin, 
 18 Pick. (Mass.) 95, 105; Morrill v. Wallace, 9 N.H. Ill; Wolcott v. Mount, 30 
 
 68 
 
CHAP. IV.J AND CATALOGUES. 58* 
 
 an estate sold as a renewable leasehold was stated to be 
 " nearly equal to freehold " {g), and where a house of mean 
 character was described as " fit for a respectable family " {h), 
 these were held to be mere puffs. Also, where land was called 
 [58] " uncommonly rich water meadow " {i), whereas it was 
 in fact imperfectly watered ; and " fertile and improvable '' (k), 
 when part of it had been abandoned as useless, but was not 
 proved to be irreclaimable ; these statements were only re- 
 garded as flourishing descriptions of the auctioneer. Puffing 
 statements are, however, to be avoided, not only because a 
 certain amount of risk attends their use, but also because a 
 too general employment of them tends to bring the profession 
 into disrepute. 
 
 Catalogues. — The same general rules apply to catalogues 
 as to particulars, and the same necessity exists that, when 
 the property is described in them, the description should be 
 accurate.' Where pictures sold were described as "views in 
 
 (g) Fenton v. Browne, 14 Ves. 144. chaser was held entitled to compensa- 
 
 (Ji) Magennis u. Fallon, 2 Mol. tion : Leyland v. lUingworth, 2 De G.F. 
 
 561,587; cf. Johnson z». Smart, 2 Giff. & J. 248; 29 L.J. Ch. 61 1; and see 
 
 151; 6 Jur. N.S. 815; and see /oi^, Higgins 7/. Samels, 2 J. & H. 460, where 
 
 p. 62. the limestone of a quarry was said to be 
 
 (/) Scott V. Hanson, I Russ. & M. "fit for the London market" (such ex- 
 
 128; I Sim. 13. But this case probably pression being used in the trade for lime 
 
 went too far: see Dart, 100. And of the best quality), whereas it was of 
 
 where property described as " well an inferior quality, and specific perform- 
 
 supplied with water " was proved to be ance was refused to the vendor, 
 well supplied on payment of water rates, (/5) Dimmock v. Hallett, L.R. 2 Ch. 
 
 there being no natural supply, the pur- 21, 27. 
 
 N.J. Law, 496, 499; Oneida Manuf. Co. v. Lawrence, 4 Cow. (N.Y.) 440; Sweet 
 V. Colgate, 20 Johns. (N.Y.) 196; Davis i/. Meeker, 5 id. 354; Dupont v. Payton, 
 2 E.D. Smith (N.Y.) 424; Miller v. Barber, 66 N.Y. 558; Saunders v. Hatter- 
 man, 2 Ired. Law (Nor. Car.) 32; Fagan zi. Newson, i Dev. Law (Nor. Car.) 21; 
 Somers v. Richard, 46 Vt. 170; McClellan v. Scott, 24 Wise. 81.] 
 
 [' Matter of description which does not appear to have been intended as a 
 mere expression of opinion respecting the kind, quality, or condition of the article 
 sold, but to have been intended as an inducement to the purchaser, and relied 
 upon as such by the purchaser, will be regarded as a warranty : Ricks v. Dilla- 
 hunty, 8 Porter (Ala.) 133; Bradford v. Bush, 10 Ala. 386; Byrne v. Jansen, 50. 
 Calif. 624; Polhemus v. Heiman, 45 Calif. 573; O'Neal v. Bacon, I Houston 
 (Del.) 215; Sparling v. Marks, 85 Ills. 125; Reed v. Hastings, 61 Ills. 266; 
 Kenner v. Harding, 85 Ills. 264; Ender v. Scott, II Ills. 35; Humphreys v. 
 Comline, 8 Blackf. (Ind.) 516; House v. Fort, 4 id. 293; Clark t. Ralls, 50 Iowa, 
 275; Randall v. Thornton, 43 Maine, 226; Bryant v. Crosby, 40 Maine, 9, 18; 
 Hillman v. 'VVilcox, 30 Maine, 170; Horn v. Buck, 48 Md. 358; Osgood w. Lewis, 
 
 69 
 
*59 PARTICULARS [PART I. 
 
 Venice by Canaletto " {sic), it was held that it was rightly 
 left to the jury to say whether the vendor meant to warrant 
 that they were by Canaletti (/). Again, where two pictures 
 were described as ".a couple of Poussins," it was left to the 
 jury to say whether the purchaser bought them believing 
 them from the vendor's representation to be genuine ; for, if 
 so, he was not bound to take them, unless genuine (/«). But 
 when [59] the artist by whom the pictures are asserted to 
 have been painted has been dead for a long time, it may be 
 that only an opinion can be expressed as to their genuineness, 
 and that there is therefore no warranty (n). Where two 
 pictures sold by auction were described in the catalogue, the 
 one as being by Claude Lorraine, and the other as by Teniers, 
 Lord Kenyon held that, in the absence of any proof of mala 
 fides, this was merely intended as an expression of opinion 
 
 (/) Power z/. Barham, 4 A. & E. 473. Jendwine v. Slade, ztlii infra. [The 
 
 (?;;) Lomt v. Tucker, 4 C. & P. 15; test is whether the vendor means ex- 
 
 cf. De Sewhanberg v. Buchanan, 5 C. pressly to assert a fact, or merely to 
 
 & P. 343, where, the facts being in dis-' express an opinion as to a matter on 
 
 pute, Tindal, C.J., left it to the jury to which he claims no special knowledge, 
 
 say whether there was a warranty or See Byrne v. Jansen, 50 Calif 624; 
 
 only an expression of opinion by the Reed v. Hastings, 61 Ills. 266; Baird 
 
 vendor. [See to the same point House z'. Matthews, 6 Dana (Ky.) 129; Tewkes- 
 
 V. Fort, 4 Blackf. (Ind.) 293; Tuttle v. bury v. Bennett, 31 Iowa, 83; Bishop 
 
 Brown, 4 Gray (Mass.) 457; Duffee v. j;. Small, 63 Maine, 12; Strond i/. Pierce, 
 
 Mason, 8 Cow. (N.Y.) 25; Chapman 6 Allen (Mass.) 413 ; Carley 7'. Wilkins, 
 
 V. Murch, 19 Johns. (X.Y.) 290; Mor- 6 Barb. (N.V.) 557 ; Wolcott v. Mount, 
 
 rill z/. Wallace, 9 N.H. iii; Foster v. 38N.J.Law, 496, 499; Horton z*. Green, 
 
 Caldwell, iS Vt. 176.] 66 Nor. Car. 596; Fisher %i. Budlong, 
 
 («) See judgments of Lord Den- 10 R.I. 525; Morrill j. Bemis, 37 Vt. 
 
 man, CJ., and Williams, J., in Power 155; Wasonz/. Rowe, 16 Vt. 525 ; Smith 
 
 V. Barham, ubi sitpra^ observing on v. Justice, 13 Wise. 600. J 
 
 2 Har. & G. (Md.) 495; Stone v. Denny, 4 Met. (Mass.) 151, 155; Otts v. Alder- 
 son, 10 Sm. & M. (Miss.) 476; Anderson v. Burnett, 5 How. (Miss.) 165; Kinley 
 V. Fitzpatrick, 4 id. 59; Murphy v. Gay, 37 Mo. 535: Carter v. Black, 46 Mo. 
 3S4; Patrick v. Leach, 8 Nebraska, 530; Morrill v. Wallace, 9 N.H. iii; Haw- 
 kins V. Pemberton, 51 N.Y. 198; Brown v. Tuttle, 66 Barb. (N.Y.) 169; Wilbur 
 V. Cartwright, 44 id. 536; Lawton v. Keil, 61 id. 558; Rogers v. Ackerman, 22 id. 
 134; Whitney v. Sutton, 10 Wend. (N.Y.) 41 1; Cook v. Moseley, 13 id. 277; 
 Murray v. Smith, 4 Daly (N Y.) 277; Wolcott v. Mount, 38 N.J. Law (7 Vroom), 
 496; Henson v. King, 3 Jones Law (Nor. Car.) 419; Warren v. Philadel- 
 phia Coal Co., 83 Penn. St. 437; Weimer v. Clement, 37 Penn. St. 147; Mc- 
 Farland v. Newman, 9 Watts (Penn.) 55; Bryce v. Parker, 11 So. Car. 337; 
 McGregor v. Penn, 9 Yerger (Tenn.) 74; Blythe v. Speake, 23 Texas, 429; Bond 
 V. Clark, 35 Vt. 577; Beats v. Olmstead, 24 Vt. 114; Beeman v. Buck, 3 Vt. 53; 
 Hahn V. Doolittle, 18 Wise. 196.] 
 
 73 
 
CHAP. IV.J AND CATALOGUES. 6o* 
 
 and not as a warranty (<?). Where a ship described as "copper- 
 fastened" proved to be only partially copper-fastened, the 
 purchaser was held entitled to recover damages for breach of 
 warranty, although she was sold with all faults (/). The 
 meaning of the term " sound," when used on the sale of a 
 horse, has been variously stated. Parke, B., has laid down 
 the following rule {g) : " If at the time of sale the horse has 
 any disease, which either actually does diminish the natural 
 usefulness of the animal, so as to make him less capable of 
 work of any description, or which in its ordinary progress will 
 diminish the natural usefulness of the animal, or if the horse 
 has, either from disease or accident, undergone any alteration 
 of structure, that either does at the time or in its ordinary 
 effects will diminish the natural usefulness of the horse, such 
 horse is unsound." ' A horse has been held to be unsound, 
 when he has been nerved (r), or has bone-spavin in [60] the 
 hock (s), ossification of the cartilages (i), the navicular dis- 
 ease (u), thick wind (x), or an unusual convexity of the eye, 
 inducing him to shy (j), or is a roarer {2). Crib-biting is not 
 unsoundness, but a vice (a). Goggles constitute unsoundness 
 
 (0) Jendwine v. Slade, 2 Esp. 572. (s) Watson i'. Denton, 7 C. & P. 85. 
 
 In this case, moreover, it was not dis- (i) Simpson v. Potts, Oliphant's Law 
 
 tinctly proved that the pictures were of Horses, 3d ed. 443. 
 not originals. Canaletti died in 1768; {a) Matthews v. Parker, ii. 447. 
 
 Claude Lorraine in 1682; Teniers (the (:ir) Atkinson v. Horridge, ii. 448. 
 
 younger) in 1694. (7) Holyday v. Morgan, i E. & E. 
 
 (/) Shepherd v. Kain, 5 B. & Aid. 1 ; 28 L.J.Q.B. 9, where the Court held 
 240, where it was said that "with all that any malformation existing from 
 faults " must mean all faults consistent birth, which at the time of sale renders 
 with the article being what it was de- less fit for reasonable use, is unsound- 
 scribed to be. [The same rule is laid ness. 
 
 down by Devens, J., in Whitney v. (z) Onslow k. Eames, 2 Stark. 8i; 
 
 Boardman, 118 Mass. 242, 247.] butnotsoinBassettz/.CoUis, 2Camp.523. 
 
 (?) ICiddell V. Burnard, 9 M. & W. (a) Scholefield v. Robb, 2 Moo. & 
 
 668, 669, overruling Bolden v. Brogden, R. 210. [But see Washburn v. Cud- 
 
 2 Moo. & R. 113. dihy, 8 Gray (Mass.) 430; Walker v. 
 
 (r) Best V. Osborne, Ry. & M. 290. Hoisington, 43 Vt. 608.] 
 
 [' See Kornegay v. White, 10 Ala. 255; Thompson v. Bertrand, 23 Ark. 730; 
 Tatum V. Mohr, 21 Ark. 349; Hook v. Stovall, 21 Ga. 69; Towell ct. Gatewood, 
 2 Scammon, Ills. 22; Burdit v. Burdit, 2 A. K. Marsh. (Ky.) 143; Merrick v. 
 Bradley, 19 Md. 50; Woodbury v. Robbins, 10 Cush. (Mass.) 520; Fondren v. 
 Durfee, 39 Miss. 324; Roberts v. Jenkins, 21 N.H. 116; Willard v. Stevens, 24 
 N.H. 271; Roberts v. Morgan, 2 Cow. (N.Y.) 43S; Cook v. Moseley, 13 Wend. 
 (N.Y.) 277; Crouch v. Culbreath, II Rich. (So. Car.) 9.] 
 
 71 
 
*6l PARTICULARS [PART I. 
 
 in sheep {b). Even if goods are sold "with all faults," the sale 
 is nevertheless voidable, if the vendor knows of latent defects 
 and uses secret means to conceal them or fraudulently mis- 
 represents their condition {c). Mere silence is not, however, 
 a misrepresentation. Where a person merely sold a glandered 
 horse, knowing it to be so, it was held that the purchaser 
 had no right of action {d). 
 
 Remarks on Details of Particvdars. — The following obser- 
 vations on the contents of particulars (and on the effect of 
 misdescriptions &c.), following the order in which they have 
 already been stated (see ante, pp. 48-50), may be found of 
 use. 
 
 As regards the care to be taken in describing the character 
 of the property. The courts in construing particulars have 
 attached the following meanings to the following expressions, 
 viz. : — 
 
 [61] By "ground rent," if unexplained, is to be understood 
 a rent less than the rack-rent ; its proper meaning is the rent 
 at which land is let for building purposes {e). Where what 
 was so called was in fact a sum in gross paid for the right of 
 user of a pleasure-ground, the purchaser was allowed to re- 
 scind the contract and recover his deposit {f). 
 
 Where property was described as customary leaseholds, 
 
 {b) Joliff z/. Bendell, Ry. & M. 136; (N.Y.) 102; Howell v. Biddlecom, 62 
 
 cf. Benj. 504 et seq. id. 131; Pearce v. Blackwell, 12 Ired. 
 
 (c) Schneider v. Heath, 3 Camp. Law (Xor. Car.) 49; Maynard v. May- 
 
 506 ; Baglehole v. Walters, 3 Camp, nard, 49 Vt. 297.] 
 154; note to Mellishw. Motteu.x, Peake, (r/) Hill v. Balls, 2 H. & N. 299; 
 
 N.P.C. 1 16; Shepherd v. Kain, 5 B. & 27 L.J. Ex. 45; Smith v. Hughes, L.R. 
 
 Aid. 240; Pickering v. Dowson, 4 6 Q.B. 597; 40 L.J.Q.B. 221; Ward z/. 
 
 Taunt. 779, 785; Pettitt v. Mitchell, i Hobbs, 4 App. Cas. 13; 48 L.J.Q.B. 
 
 Car. & U. 424; 5 Sco. N.R. 721 ; 4 281. [See Hough v. Richardson, 3 
 
 Man. & G. 819; 12 L.J.C.P. 9; 6 Jur. Stoiy, C.C. 659; Stephens v. Orman, 
 
 1016; Ward I/. Hobbs, 4 App.- Cas. 13; loFIa. 9; Port i/. Williams, 6 Ind. 219; 
 
 48 L.J.Q.B. 281. [See Smith v. Rich- Mooney v. Miller, 102 Alass. 217, 220; 
 
 ards, 13 Peters, 26; Van Arsdale v. Hoitt v. Holcomb, 32 N.H. 185, 202; 
 
 Howard, 5 Ala. 596; Roseman v. Can- Lytle v. Bird, 3 Jones Law (Nor. Car.) 
 
 ovan, 43 Calif, no; Otis v. Raymond, 222.] 
 
 3 Conn. 413; Cogel v. Kniseley, 89 {e) Dart, 123; Stewart v. Alliston, 
 
 Ills. 598 ; Morris v. Thompson, 85 Tils, i Mer. 26; Lecoy v. Mogford, 2 Jur. 
 
 16; Atwood V. Chapman, 68 Maine, N.S. 1084. 
 
 38; Coddington 7,. Goddard, 16 Gray (/) Evans v. Robins, 8 Jur. N.S. 
 
 (Mass.) 436; Hanson v. Edgerly, 29 846; cf. Lanford w. Selmes, 3 Kay & J. 
 
 N.H. 343; Taylor v. Fleet, 4 Barb. 95, 220; 3 Jur. N.S. 859. 
 
 72 
 
CHAP. IV.J AND CATALOGUES. 62* 
 
 renewable every twenty-one years, and it appeared that the 
 premises were only held for an absolute term of twenty-one 
 years, this was held to be error of description, and not of 
 title, and the purchaser was held under the conditions of sale 
 to be entitled to specific performance with a deduction from 
 the price {g). 
 
 Where redeemed land tax composed of distinct payments 
 on separate properties was described as an aggregate sum 
 issuing out of all, the misdescription was held fatal to the 
 contract {h). 
 
 The expression " farm " includes woodland, part of the 
 estate, although not in the occupation of the tenant {i). 
 
 The expression "free public house" is a misdescription, 
 when the lease contains a covenant to take the beer from a 
 particular brewer {k). 
 
 A house where beer is sold by retail under a licence to sell 
 [62] beer " not to be drunk on the premises " has been held 
 to be a "beer-shop" (/), but it would not be correctly described 
 as a "public house, tavern or beer-house" {m). 
 
 Where a house was described as " the house in the occu- 
 pation of P.," the expression was held sufficient to include an 
 ornamental frontage belonging to the house sold, but extend- 
 ing over a portion of the one adjoining («). 
 
 The term "brick-built house" is understood to mean brick- 
 
 (f) Newby v. Paynter, 22 L.J. Ch. Co. v. Field, 16 Ch. D. 645; Nicol 
 
 871; 17 Jur. 483; [II Hate, 26]. v. Penning, 19 Ch. D. 258; 30 W.R. 
 
 (/i) Cox V. Coventon, 8 Jur. N.S. 95. 
 1142; 10 W.R. 829. The proper evi- (?«) Pease z/. Coats, L.R. 2 Eq. 688; 
 
 dence to support a statement that the 36 L.J. Ch. 57; Holt v. Collyer, 16 Ch. 
 
 land tax has been redeemed is thecerti- D. 718, where Fry, J., at p. 721, says: 
 
 ficate of the commissioners or a copy of " Whereas a beer-house means a place 
 
 the register; it is not sufficient to say where beer is sold to be consumed on 
 
 that none has been paid subsequently the premises, a beer-shop is a place 
 
 to a certain date : Poppleton v, Buchan- where beer is sold to be consumed off 
 
 an, 3 C.B.N.S. 20 ; 27 L.J.C.P. 210. the premises." 
 
 (J) Dart, 123. («) Fox z^. Clarke, L.R. 9 Q.B. 565; 
 
 {k) Jones V. Edney, 3 Camp. 285; 43 L.J.Q.B. 178; it also includes the 
 
 Modlen v. Snowball, 29 Beav. 641 ; 31 cellar; Whittington v. Corder, 16 Jur. 
 
 L.J. Ch. 44; 7 Jur. N.S. 1260; [Bar- 1034; 20L.T.O.S. 175 ; [andthemeans 
 
 nard v. Cave, 26 Beav. 253]. of access to the house : Stanton v. Tat- 
 
 (/) Bishop of St. Albans v. Batters- tershall, i Sm. & G. 529; or to land 
 
 by, 3 Q.B.D. 359; 47 L.J.Q.B. 571 ; sold as arable land: Denne v. Light, 
 
 London & Suburban Land & Building 8 De Gex. M. & G. 774]. 
 
 73 
 
*63 PARTICULARS [PART I. 
 
 built in the ordinary sense of the word ; a house built exter- 
 nally partly of brick, partly of timber and lath and plaster, 
 does not fulfil the description {o) ; but the words " substan- 
 tial and convenient " are merely relative, and a purchaser was 
 held to his bargain, where, in a house so described, one of the 
 external walls was only half a brick in thickness (/). Where 
 a lessor represented the drainage of a house as good, whereas 
 it was so bad that the lessee was obliged to leave, the latter 
 obtained a rescission of the lease with damages {q). 
 
 The most common and the primary meaning of the term 
 "party wall" is a wall of which two adjoining owners are' 
 tenants in common. The expression is also used to signify 
 a wall divided longitudinally into two strips, one belonging to 
 each of the neighbouring owners ; or a wall [63] belonging 
 entirely to one of the adjoining owners, but subject to an 
 easement or right to have it maintained as a dividing wall 
 between the two tenements. The term is so used in some 
 of the Building Acts (r). 
 
 The word " fixtures " means anything annexed to the free- 
 hold in such a manner to become parcel of it. " Landlord's 
 fixtures " comprise those put up by the landlord and such as 
 are put up by a tenant during his term and which he has no 
 right to remove. 
 
 Tenant's fixtures are personal chattels annexed to the free- 
 hold by the tenant during the term, either for the purposes 
 of his trade or for mere ornament and convenience, and which 
 he has a right to sever and remove, during the term, in the 
 absence of any express stipulation or local custom to the con- 
 trary. But they do not include buildings of a permanent 
 character, although built for the purposes of trade, nor such 
 ornaments &c. as cannot be removed without injury to the 
 premises {s). 
 
 (o) Powell V. Bubble, Sugd. 29. It also designates a wall divided longi- 
 
 (/) Johnson v. Smart, 2 Giff. 151; tudinally into two moieties, each subject 
 
 6 Jur. N.S. 815; cf. Robinson v. Mus- to an easement in favour of the owner 
 
 grove, 8 C. & P. 469 ; 2 Moo. & R, 92. of the other ; ifi. 
 
 (j) Kinnaird z,. Smith, W.N. 1881, (j) Woodf. L. & T. 594 e^ sey. Fix- 
 
 82. tures, when separately assigned or 
 
 (r) Per Fry, J., in Watson v. Gray, charged, but (excepting trade machiu- 
 
 14 Ch. D. 192, 194; 49 L.J. Ch. 243. ery) not otherwise, come within the 
 
 74 
 
CHAP. IV.] 
 
 AND CATALOGUES. 
 
 64* 
 
 Quantity and Extent of Property. — It depends on the cir- 
 cumstances of each case whether the variation between the 
 actual quantity and the quantity stated is or is not material (i). 
 " If the price of an estate is [64] not regulated by the acreage 
 of the property, but by its peculiar situation or adventitious 
 value, and the quantity is stated as mere matter of description 
 
 meaning of the term " personal chat- 
 tels," as used in 41 & 42 Vict. c. 31 
 (Bills of Sale Act, 1878), a. 4, and they 
 are not deemed to be separately as- 
 signed, when the land or buildings to 
 which they are affixed passes by the 
 same instrument; s. 7. See In re 
 Armytage, 14 Ch. D. 379. They are 
 not "goods and chattels" within the 
 reputed ownership clause of the Bank- 
 ruptcy Act, 1869 : see notes to Horn v. 
 Baker, 2 Sm. L.C. 205. Cf. post, p. 92. 
 [Fixtures annexed to the freehold solely 
 for purposes of trade and not with the 
 design of improving the inheritance 
 will not be considered a part of the 
 freehold. See Kirwan v. Latour, i 
 Harr. & J. (Md.) 289; Winslow v. 
 Merchants' Ins. Co., 4 Met. (Mass.) 
 306; Gaffield v. Hapgood, 17 Pick. 
 (Mass.) 192; Freeland v. Southworth, 
 24 Wend. (N.Y.) 191 ; Day z/. Perkins, 
 2 Sandf. Ch. (N.Y.) 359; Voorhis ». 
 Freeman, 2 Watts & S. (Penn.) 116; 
 Gray v. Holdship, 17 Serg. & R. (Penn.) 
 413; McClintock v. Graham, 3 McCord 
 (So. Car.) 553. The design of making 
 the annexation of articles which can be 
 removed without substantial injury to 
 the inheritance and the purpose for 
 which they are intended to be used will 
 be more decisive of their character than 
 the mere degree of their annexation. 
 Thus doors, vidndow-blinds, and shutters 
 will be deemed to be part of the house, 
 though they could be removed without 
 the slightest damage, and though they 
 were not in fact attached to it at the 
 time of the conveyance; but mirrors, 
 wardrobes, and heavy articles of furni- 
 ture, though firmly screwed to the walls, 
 are mere personal chattels : Winslow v. 
 
 Merchants' Ins. Co., 4 Met. (Mass.) 306, 
 314. See Union Bank v. Emerson, 15 
 Mass. 159; Noble v. Bosworth, 19 Pick. 
 (Mass.) 314; Green z;. Maiden, 10 Pick. 
 (Mass.) 500, 504; Despatch Line of 
 Packets v. Bellamy Manufg. Co., 12 
 N.H. 205; State v. Elliott, n N.H. 
 540; Goodrich v. Jones, 2 Hill (N.Y.) 
 142; Oves V. Oglesby, 7 Watts (Penn.) 
 106; Pyle u. Pennock, 2 Watts & S. 
 (Penn.) 390; Fairis v. Walker, i Bailey 
 (So. Car.) 540; McDaniel v. Moody, 
 3 Stewart (Ala.) 314.] 
 
 (/) 41 & 42 Vict. c. 49, s. 3, enacts 
 that " the same weights and measures 
 shall be used throughout the United 
 Kingdom." See ss. 19, 20, 22 and 24. 
 For table of measures &c. under this 
 act, see post. Appendix. It has been 
 held that s. 6 of the repealed act 5 & 6 
 Will. IV. c. 63, which enacted that all 
 local and customaiy measures should be 
 abolished, did not make illegal a con- 
 tract for sale by a local or customary 
 measure, provided that such measure 
 was a multiple of the standard unit and 
 employed merely as a local term to 
 designate a given number of such unit : 
 Hughes V. Humphreys, 3 E. & B. 954; 
 23 L.J.Q.B. 356 ; Giles v. Jones, 1 1 Ex. 
 393 ; 24 L.J. Ex. 259 ; cf. Butler's 
 Weights and Measures and Whiteley's 
 Law of Weights and Measures, passim. 
 There are, however, said to be two de- 
 scriptions of admeasurement, one the 
 landlord's, or selling, measure, including 
 the hedges, fences and ditches, growing 
 bushes and underwood in the divisions 
 between closes ; and the other the ten- 
 ant's, or agricultural, measure, including 
 only the ploughing or mowing acre : i 
 Ch. Pr. 181. 
 
 75 
 
*64 
 
 PARTICULARS 
 
 [part I. 
 
 or opinion, and not as the result of actual admeasurement, the 
 purchaser may be compelled to take the estate, and will not 
 be entitled to any abatement of his purchase-money, if the 
 actual quantity falls short of the estimated quantity " {tt). If 
 
 {u) Add. Con. 407. [If the state- 
 ment of quantity is merely matter of 
 description and does not appear to be 
 of the essence of the contract, the agree- 
 ment will, in the absence of fraud, be 
 carried out as made : Chipman v. Briggs, 
 5 Calif. 76; Wear v. Parish, 26 Ills. 
 240; Zeringue v. Williams, 15 La. Ann. 
 76; Phelps V. Wilson, 16 La. 185; 
 Lesassier v. Dashiell, 13 La. 151 ; Innis 
 V. McCrummin, 12 Martin (La.) 425; 
 Tyson v. Hardesty, 29 Md. 305; Sloth- 
 ower V. Gordon, 23 Md. i ; Hall v. May- 
 hew, 15 Md. 551; Clark v. Carpenter, 
 19 N.J. Eq. (4 C.E. Green) 328; Weart 
 V. Rose, 16 N.J. Eq. (i C.E. Green) 290; 
 Morris Canal Co. v. Emmett, 9 Paige 
 (N.Y.) 168; Johnson !<. Taber, 10 N.Y. 
 319. If land is conveyed or sold by a 
 description containing the words " more 
 or less," neither party professing to know 
 or knowing the precise quantity of the 
 land, the purchaser will not, in the ab- 
 sence of fraud, be entitled to any abate- 
 ment of the price on the discovery of a 
 deficiency in the assumed quantity : 
 Stebbins v. Eddy, 4 Mason, C.C. 414 ; 
 Brown v. Parrish, 2 Dana (Ky.) 69; Eu- 
 bank V. Hampton, I Dana (Ky.) 343, 
 344; Hampton v. Eubank, 4 JJ. Marsh. 
 (Ky.) 634; Williford v. Bentley, 5 J.J. 
 Marsh. (Ky.) iSi; Hall z^. Mayhew, 15 
 Md. 551; Plowe V. Bass, 2 Mass. 3S0, 
 382, 383; Perkins u. Webster, 2 N.H. 
 2S7; Marvin v. Bennett, 8 Paige (N.Y.) 
 312; Edwards v. Bodine, 26 Wend. 
 (N.Y.) 169; Jackson v. McConnell, 19 
 Wend. (N.Y.) 175 ; Jackson v. Moore, 6 
 Cow. (N.Y.) 706; Whicker v. Crews, i 
 Ired. Eq. (Xor. Car.) 351 ; Peden v. 
 Owens, Rice Eq. (So. Car.) 55; Gal- 
 braith v. Galbraith, 6 Watts, H2, 117; 
 Weaver v. Carter, 10 Leigh (Va.) 37. 
 But in Smith v. Fly, 24 Texas, 345, the 
 court refused to allow the words *' more 
 or less " to cover a mistake of one quar- 
 
 ter. And under the same circumstances 
 any surplus of the land over the quantity 
 mentioned will belong to the purchaser 
 without any increase of the price : Weart 
 V. Rose, 16 N.J. Eq. (l C. E. Green) 
 290. Even a positive statement of the 
 quantity may be taken to be mere de- 
 scription and not of the essence of the 
 contract. See Stebbins v. Eddy, 4 Ma- 
 son C.C. 414; Powell V. Clark, 5 Mass. 
 355; Jackson v. Barringer, 15 Johns. 
 (N.Y.) 471 ; Mann v. Pearson, 2 
 Johns. (N.Y.) 37 ; Boar v. McCor- 
 mick, I Serg. & R. (Penn.) 166; Smith 
 V. Evans, 6 Binney (Penn.) 102. But 
 if the quantity has been made of the 
 essence of the contract, then a mis- 
 representation thereof, though inno- 
 cently made, will entitle the pur- 
 chaser to an abatement of the price: 
 SoUnger i'. Jewett, 25 Ind. 479; Rey- 
 nolds V. Vance, 4 Bibb (Ky.) 213; 
 Kent V. Carcand, 17 Md. 291 ; Earl v. 
 Bryan, PhiUips Eq. (Nor. Car.) 27S; 
 Glover v. Smith, i Desaus. (So. Car.) 
 433 ; Bond v. Jackson, 3 Hayward 
 (Tenn.) 189; Quesnell v. Woodlief, 6 
 Call. (Va.) 218; Nelson v. Carrington, 
 4 Munf (Va.) 332; Nichols v. Cooper, 
 2 W. Va. 347. If the seller knew the 
 real quantity, his fraudulent use of the 
 words " more or less " would not be al- 
 lowed to cover his statement of a greater 
 quantity : Pringle v. Samuel, I Litt. 
 (Ky.) 44; Earl v. Bryan, Phillips Eq. 
 (Nor. Car.) 278; Duvals v. Ross, 2 
 Munf. (Va.) 290. Even a sale in gross 
 may be avoided for fraudulent misrepre- 
 sentations as to the quantity of the land : 
 Thomas v. Beebe, 25 N.Y. 244. In 
 Noble V. Googins, 99 Mass. 231, 234, the 
 doctrine was maintained that in a written 
 contract for the purchase of land for a 
 gross sum, a description of the land by 
 its boundaries, or the insertion of the 
 words " more or less,'' or equivalent 
 
 76 
 
CHAP. IV.] 
 
 AND CATALOGUES. 
 
 64* 
 
 the price is regulated by the quantity, and the vendor has 
 innocently misrepresented the quantity, the rule has been 
 
 words, will control a statement of the 
 quantity of land, or of the length of one 
 of the boundary lines, so that neither 
 party will be entitled to relief on ac- 
 count of a deficiency or a surplus, unless 
 the difference is so great as naturally to 
 raise the presumption of fraud or of 
 gross mistake in the essence of the con- 
 tract. In that case the defendant agreed 
 in writing to pay to the plaintiff a gross 
 sum for a " wharf lot on C. street," ex- 
 tending from the street to the channel, 
 and described as bounded on one side 
 by D's shipyard and on the other side 
 by the shipyard of E, and as " measur- 
 ing about two hundred and twenty feet 
 on C. street, more or less." In fact, it 
 measured only one hundred and seventy 
 feet on C. street, and was proportionally 
 less valuable. At and before the time 
 of signing the agreement, deeds of the 
 lot and of the adjoining shipyards, show- 
 ing their actual width and boundaries, 
 were recorded in the registry of deeds. 
 And it was held that in the absence of 
 fraud the defendant was not entitled, in 
 law or equity, to any abatement of the 
 stipulated price. Said Gray, J., in de- 
 livering the opinion of the court : " It 
 is quite clear that if a deed had been 
 made in these terms, a difference either 
 way of less than one-fourth in the actual 
 width of the lot (like a similar variance 
 in stating the quantity of land granted) 
 would not have defeated the convey- 
 ance, or entitled either party to set it 
 aside or to claim an increase or diminu- 
 tion of the stipulated price : Day v. 
 Fynn, Owen, 133; Anon., Freem. Ch. 
 106; Twyford v. Wareup, Finch, 310; 
 Lord Cottenham, in Okill v. Whittaker, 
 2 Phil. Ch. 340; Powell v. Clark, 5 
 Mass. 355; Stebbins j/. Eddy, 4 Mason, 
 414. The defendant contends that a 
 different rule is to be applied to an 
 executory contract for the sale of land, 
 even for a gross price; and in support 
 of this position relies on some English 
 chanceiy cases, from which it is difficult 
 
 to extract any consistent principle. In 
 Hill V. Buckley, 17 Yes. 394, a tract of 
 woods was described, in the agreement 
 of which specific performance with an 
 abatement of price was sought, as " con- 
 taining two hundred and seventeen acres 
 and ten perches of statute measury." 
 Sir William Grant, after a remark (which 
 would seem to have been sufficient to 
 dispose of the case) that "the particu- 
 larity of the statement, descending to 
 perches, would naturally convey the no- 
 tion of actual admeasurement, uttered 
 this dictum, which has since been cited 
 as establishing a general rule : ' Where 
 a misrepresentation is made as to the 
 quantity, though innocently, I apprehend 
 the right of the purchaser to be to have 
 what the vendor can give, with an abate- 
 ment out of the purchase-money for as 
 much as the quantity falls short of the 
 representation. That is the rule gen- 
 erally; as, though the. land is neither 
 bought nor sold professedly by the acre, 
 the presumption is that in fixing the 
 price regard was had on both sides to 
 the quantity which both suppose the 
 estate to consist of.' But in the later 
 case of Winch v. Winchester, : Ves. Sa 
 B. 375, the same learned judge was of 
 opinion that an agreement to sell an 
 estate described as being in the occu- 
 pation of a certain person, and as ' con- 
 taining by estimation forty-one acres, 
 be the same more or less,' did not en- 
 title the purchaser to an abatement of 
 price for a deficiency of five or six acres, 
 if the vendor did not know the true 
 quantity, and made no other statement 
 what it was. The dicta of Lord Eldon 
 afford no clearer guide. In Townsend 
 V. Stangroom, 6 Ves. 341, his words 
 were : ' As to the expression " more or 
 less," I do not say those words in a con- 
 tract will not include a few additional 
 acres'; but if parties are contending 
 about three acres, it would be very 
 singular upon these words to add twenty- 
 four map acres, which he knew were 
 
 77 
 
*64 
 
 PARTICULARS 
 
 [part I. 
 
 stated to be that the purchaser has a right to have what the 
 vendor can give, witli an abatement out of the purchase-money 
 
 already demised, as far as parol could 
 demise them, to, a third person. In 
 Portman v. Mill, 2 Russ. 510, the con- 
 tract was for a certain farm, ' containing 
 by estimation three hundred and forty- 
 nine acres, or thereabouts, be the same 
 more or less,' and stipulated that the 
 premises should be taken at the quan- 
 tity thus stated, whether more or less; 
 and the learned chancellor merely said 
 that he could never agree that such a 
 stipulation as this, ' if there were nothing 
 else in the case,' would cover a defi- 
 ciency of more than a hundred acres. 
 There could be no better evidence of 
 the unsatisfactory state of the English 
 law upon this point than the caution with 
 which it is expressed by so acute, dis- 
 criminating, and profound a commenta- 
 tor and so eminent a judge as Lord St. 
 Leonards. 'Where the contract rests 
 in fieri, the general opinion has been 
 that the purchaser, if the quantity be 
 considerably less than it was stated, will 
 be entitled to an abatement, although 
 the agreement contain the words " more 
 or less," or " by estimation," or even 
 stronger words.' Sugden on Vendors 
 (14th Ed.), 324. The American courts 
 have shown more unwillingness than 
 the English to encourage litigation about 
 the amount of the price by reason of a 
 variation in the quantity of the land 
 agreed to be conveyed without clear 
 evidence that the quantity was made an 
 essential element of the bargain. The 
 leading case is Mann v. Pearson, 2 
 Johns. 37, in which a bond for the con- 
 veyance of 'lot No. 78, in the township 
 of Lysander, containing six hundred 
 acres,' was held by a majority of the 
 Supreme Court of New York, consisting 
 of Kent, C.J., and Spencer and Tomp- 
 kins, J.J., to be fully complied with by 
 giving a deed of the same lot, describ- 
 ing it as ' containing six hundred acres 
 of land, be the same more or less,' al- 
 though it was found by actual survey to 
 contain less than four hundred and 
 
 78 
 
 twenty-two acres; and even Livingston 
 and Thompson, JJ., who dissented from 
 the decision, expressed opinions that if 
 the bond had contained either a par- 
 ticular description of the estate by metes 
 and bounds, or the words ' more or 
 less,' it would have controlled the 
 statement of the quantity. That case 
 was referred to with respect and appar- 
 ent approval by Mr. Justice Parker, in 
 Howe V. Bass, 2 Mass. 382, 383, and by 
 the Supreme Court of Pennsylvania in 
 Smith V. Evans, 6 Binn. 107, 109. It 
 has since been declared by a great 
 weight of authority, in accordance, as 
 we think, with the soundest reason, that 
 in an agreement for the sale and pur- 
 chase of land for an entire sum either 
 a description of the land by its boun- 
 daries, or the insertion of the words 
 ' more or less ' or equivalent words, 
 will control a statement of the quantity 
 of land or of the length of one of the 
 boundary lines, so that neither party 
 will be entitled to relief on account of 
 a deficiency or surplus, unless in case 
 of so great a difference as will naturally 
 raise the presumption of fraud or gross 
 mistake in the very essence of the con- 
 tract : Stebbins v. Eddy, 4 Mason, 414; 
 I Story, Eq., §§ 144 a, 195; 4 Kent, 
 Com. (6th Ed.), 467, and note; Marvin 
 V. Bennett, 8 Paige, 312, and 26 Wend. 
 169; Morris Canal Co. v. Bennett, 9 
 Paige, 168; Faure v. Martin, 3 Selden, 
 219; Ketchum v. Stout, 20 Ohio, 453; 
 StuU V. Hurrt, 9 Gill, 446; Weart v. 
 Rose, I C.E. Green, 290." At an auc- 
 tion sale of a growing crop by the acre, 
 with the option of taking it by the acre 
 or of having it measured, the buyer gave 
 his note for the price according to the 
 estimated quantity, but with an express 
 agreement forasubsequentmeasurement. 
 This note having been transferred to a 
 bona fide holder, it was held that the pur- 
 chaser could recover from the vendor for 
 the deficiency ascertainedbythe measure- 
 ment : Bennett v. Beidler, 16 Mich. 150.] 
 
CHAP. IV. J AND CATALOGUES. 65* 
 
 for SO much as the quantity falls short of the representa- 
 tion (x). 
 
 Effect of Qualifying Expressions. — Qualifying expressions, 
 such as " containing by estimation," " more or less," " or 
 thereabouts," &c., have been held to import that the precise 
 quantity is not warranted ; but although they will cover small 
 and unintentional errors and inaccuracies, they will not cover 
 careless and reckless statements. In one case, where the 
 particulars described the estate as " containing by estimation 
 41 acres, be the same more or less," when in reality it only 
 contained 35 or 36, the purchaser was held not entitled to an 
 abatement of the [65] purchase-money (j). Also, where the 
 property was stated to contain la. 2r. 8 p., but the abstract of 
 title, when delivered, showed a title only to 3r. 24 p., it was 
 held that the purchaser was bound (z). In another case the 
 property was described as containing " 7683 square feet, or 
 thereabouts," whereas it in fact contained only 4350 square 
 feet. There was a condition that "the measurements are 
 presumed to be correct, but if any error be discovered therein, 
 no allowance shall be made or required either way." The 
 purchaser filed a bill for specific performance with compensa- 
 tion, after the vendor had offered to rescind the contract. It 
 was held that, in the face of the above condition, the pur- 
 chaser was not entitled to compensation, and, as he did not 
 ask to have the contract rescinded, he must take the property 
 without compensation (a). The Court would not, probably, 
 have enforced specific performance at the suit of the vendor {6). 
 Where a lessee agreed to take a farm of 249 acres, whereas it 
 contained only 214, he was held entitled to a lease of the 214 
 acres at a reduced rent (c). And where a farm was stated to 
 
 (x) And it is immaterial, whether as stated, whether more or less, al- 
 
 the land is professedly sold by the acre, though the title-deeds should state it to 
 
 or not; per Grant, M.R., in Hill v. be less. 
 
 Buckley, 17 Ves. 394,401; cf. King !<. (<z) Cordingley if. Cheeseborough, 3 
 
 Wilson, 6 Beav. 124. Giff. 496; 8 Jur. N.S. 585, 755 ; 31 L.J. 
 
 (y) Winch !>. Manchester, I V. & B. Ch. 617; 6 L.T.N.S. 15, 342; cf. Earl 
 
 375. Semhle, otherwise, if the vendor of Durham zi. Legard, 34 Beav. 611; 34 
 
 had been personally aware of the exact L.J. Ch. 589. 
 
 quantity. {J)) Whittemore v. Whittemore, L. 
 
 {z) Nicholl V. Chambers, II C.B. R. 8 Eq. 603, 6o6.- 
 
 996; 21 L.J.C.P. 54; the conditions pro- (c) McKenzie v. Hesketh, 7 Ch. D. 
 
 viding that the quantity should be taken 675 ; 47 L.J. Ch. 231. 
 
 79 
 
*66 PARTICULARS [PART I. 
 
 contain " 349 acres or thereabouts," but contained 349 cus- 
 tomary acres only, being a hundred acres, or more, less than 
 the same number of statutory acres, the purchaser was allowed 
 to rescind the contract {d}. 
 
 In another case, where the tenant in possession purchased 
 [66] property represented to be 46 feet in depth, but which 
 proved to be only 33 feet, he was held entitled to an abate- 
 ment {e). And in a more recent case, where property was 
 stated to contain "753 square yards, or thereabouts," whereas 
 it contained 573 square yards only, compensation was ordered 
 to be given to the purchaser, notwithstanding that one of 
 the conditions of sale provided that no error or misstatement 
 should annul the sale or entitle the purchaser to compensa- 
 tion (_/). Mutual compensation was decreed in one case, 
 where several lots were purchased, and in one the quantity 
 was larger, and in another smaller, than stated, the conditions 
 of sale having provided for such a contingency {g).^ 
 
 (d) Portman v. Mill, 2 Russ. 570; (/) Whittemore v. Whittemore, L. 
 
 cf. Price v. North, 2 Y. & C. 620; from R. 8 Eq. 603; cf. Dart, 648. 
 which case it appears that a misdescrip- (^) Leslie v. Tompson, 20 L.J. Ch. 
 
 tion of the quantity of land in regard to 561; 15 Jur. 717; cf. McKenzie v. Hes- 
 
 acres being statutory or customary is not keth, 7 Ch. D. 675; 47 L.J. Ch. 231. 
 
 matter for compensation, but for re- The better way is to state the quantity 
 
 scinding the contract. according to the tithe map. 
 
 (f) King V. Wilson, 6 Beav. 124, 
 
 [^ In the following cases, besides some already referred to, sales of land by 
 auction were set aside for a variation in the quantity of the land from that 
 stated in the particulars or notices of the sale : Stevens v. Giddings, 45 Conn. 507; 
 Coons V. North, 27 Mo. 73; Lawrence v. Staigg, 8 R.I. 256; Glover v. Smith, 
 
 1 Desau. (So. Car.) 433. In Veeder i/. Fonda, 3 Paige (N.Y.) 94, there was a 
 deficiency of seven acres out of twenty; it appeared that the mistake was known 
 to one of the vendors, who concealed it, and urged the purchaser and others to 
 bid; and the sale was rescinded. Relief for a surplus or deficiency, in case of 
 a sale by auction in gross, was refused in Russell v. Houston, 5 Ind. iSo; Jen- 
 nings I'. Monks, 4 Met. (Ky.) 103; Slothower v. Gordon, 23 Md. i; Jones v. 
 Tatum, 19 Gratt. (Va.) 720; Foley v. McKeown,4 Leigh (Va.) 627. Compensa- 
 tion, by proportionate increase or diminution of the price, was allowed in Carmody 
 V. Brooks, 40 Md. 240; Ellis v. Hill, 6 Rich. (So. Car.) 37; Horn v. Denton, 
 
 2 Sneed (Tenn.) 125. But any such application for relief must be promptly 
 made: Davis v. Evans, 62 Ala. 401; Marbury v. Stonestreet, i Md. 147; Brown 
 V. Wallace, 4 Gill & J. (Md.) 479; Long v. Weller, 29 Gratt. (Va.) 347. In 
 Williams v. Bradley, 7 Heisk. (Tenn.) 54, where a tract of one hundred and thirty- 
 five acres had been sold as containing one hundred acres, the contract was en- 
 forced by setting off one hundred acres to the purchaser, and compelling him to 
 take that amount for his bid. See also Bennett v. Beidler, i6 Mich. 150; Davis 
 
 80 
 
CHAP. IV.J AND CATALOGUES. 6"]* 
 
 If the property is described as land, and the timber is not 
 expressly excluded, the purchaser is not bound to take the 
 estate without the timber that is growing on it (Ji). 
 
 " The question of what timber is depends, first, on general 
 law ; and, secondly, on the special custom of a locality. By 
 general law, oak, ash and elm are timber, provided they are 
 of the age of twenty years and upwards, provided also they 
 are not so old as not to have a reasonable quantity of useable 
 wood in them, sufficient, according to a text writer, to make 
 a good post. Timber, that is, the kind of tree which may be 
 called timber, may be varied by local custom. There is what 
 is called the custom of the country, that is, of a particular 
 county or division of a county ; and it varies in [67] two ways. 
 First of all, you may have trees called timber by the custom 
 of the country — beech in some counties (/), hornbeam in 
 others, and even white-thorn and black-thorn and many other 
 trees (k) are considered timber in peculiar localities, in addi- 
 tion to the ordinary timber trees. Then, again, in certain 
 localities, arising probably from the nature of the soil (/), 
 trees of even twenty years old are not necessarily timber, but 
 may go to twenty-four years, or even to a later period, I sup- 
 pose, if necessary ; and in other places the test of when a tree 
 becomes timber is not its age, but its girth (;«). These, how- 
 ever, are special customs " («). 
 
 (/^) Duke of St. Albans v. Shore, i the trees are used for building purposes. 
 
 H. Bl. 271, 281 ; [Higginson v. Clowes, If the soil is unsuitable, the tree will, of 
 
 15 Vesey, 516]. course, be the longer in arriving at ma- 
 
 (;) Matthews v. Matthews, 7 C.B. turity. 
 
 1018. (ot) But only trees of not less than 
 
 (k) E.g,, birch trees in Yorkshire, six inches in diameter, or two feet girth, 
 
 willows in Hampshire : Woodf. L. & T. allowing for irregularities of shape, ap- 
 
 590 ; but apparently not in Leicester- pear to be considered timber : Woodf. 
 
 shire : Phillips v. Smith, 14 M. & W. L. & T. 590, referring to Whitty v. Lord 
 
 589; 15 L.J. Ex. 201 ; and horse-chest- Dillon, 2 F. & F. 67. 
 
 nuts, limes, asp and walnut trees. As (k) Per Jessel, M.R,, in Honywood 
 
 to pollards the point seems doubtful: v. Honywood, L.R. 18 Eq. 306, 309; 43 
 
 Woodf. L. & T. 590. L.J. Ch. 652. 
 
 (/) The test appears to be, whether 
 
 V. Winsmith, 5 So. Car. 332; Edmondson v. Hart, 9 Texas, 554. The same rules 
 will be applied in favor of the vendor as to reversion or compensation where there 
 turns out to be an excess in the quantity of the land as in favor of the purchaser 
 upon the discovery of the deficiency; and the rule will be limited in the same way. 
 
 81 
 
*68 PARTICULARS [PART I. 
 
 "The word 'trees,' generally speaking, means wood appli- 
 cable to buildings, and does not include orchard trees " (o) ; 
 and where a lease contained an exception of " all timber and 
 other trees, but not the annual fruit thereof," garden and 
 orchard trees were held not to be within the exception, the 
 term fruit being frequently, in the old law books, used to 
 denote the produce, not only of orchard trees, but also of 
 timber trees (/). 
 
 Where timber or other trees are to be taken by the pur- 
 [68] chaser at a valuation, it should be stated accurately for 
 what trees he is to pay (q). 
 
 In describing timber, the size of the trees, if stated at all, 
 should be stated with as much accuracy as possible ; for where 
 the particulars described the property as "a wood, with up- 
 wards of 65 acres of fine oak timber trees, the average size of 
 which approaches 50 feet," the number of trees not being 
 stated, whereas it appeared that the average size did not, even 
 according to the vendor's showing, exceed 35 feet, the state- 
 ment in the particulars was held to be a definite representa- 
 tion of the size of the trees, the sale having been held in July, 
 when, owing to the foliage, it was impossible to view the 
 wood ; and a bill filed by the vendor to enforce specific per- 
 formance was dismissed, but without costs (r). 
 
 Situation of Property. — Where an estate was described as 
 being about one mile from a borough town, when in fact it 
 was three or four miles distant. Lord Ellenborough, C.J., left 
 it to the jury to say whether it was merely an erroneous 
 statement, or a misdescription wilfully introduced for the pur- 
 pose of enhancing the value of the land : in the former case, 
 the contract would be saved by the condition of sale which 
 
 (0) Per Littledale, J., in BuUen v. lessor, in whose favour they weve made. 
 
 Denning, 5 B. & C. 842, 85 1. (jj) Sugd. 32; Higginson v. Clowes, 
 
 (/) BuUenK. Denning, 5 B. & C. 842. 15 Ves. 516. 
 
 Thetermsoftheexceptionbeingambigu- (?-) Lord Broolie v. Rounthwaite, 5 
 
 ous, the court construed them against the Hare, 298; 15 L.J. Ch. 332 ; lojur. 656. 
 
 See Vowles v. Craig, 8 Cranch, 371 ; King v. Hamilton, 4 Peters, 311; Howell v. 
 Saule, 5 Mason, C.C. 410; Gilmore v. Morgan, 2 J.J. Marsh. (Ky.) 65 ; Smith v. 
 Smith, 4 Bibb (Ky.) 81; Harrison v. Talbot, 2 Dana (Ky.) 268; Morss v. 
 Elmendorf, II Paige (N.Y.) 277; Conover -/. Wardell, 20 N.J. Eq. (5 C.E. 
 Green) 266; Hundley v. Lyons, 5 Munf. (Va.) 342.] 
 
 82 
 
CHAP. IV.] AND CATALOGUES. 69* 
 
 provided that no error or misstatement should vitiate the 
 sale ; in the latter case, the purchaser would be relieved from 
 the contract.' The jury found for the purchaser, who had 
 brought an action to recover his deposit (s). Any gross 
 variance between the actual state of facts and the facts stated 
 in the particulars would always be strong evidence on which 
 a jury might find that the misstatement was wilful. In de- 
 scribing houses in [69] towns, the street in which they are 
 situate, and their number in that street, must be correctly 
 stated ; a mistake in the number may be fatal (t). Where 
 there are gardens attached, or where the property is mixed 
 up with other property, reference to a plan is advisable. It 
 would appear to be sufficient to describe the house by the 
 name or number which it commonly bears. Thus, where a 
 house at Brighton was described as No. 39, Regency Square, 
 and it turned out that the house was not actually in the 
 square, but in a side street communicating therewith, but was 
 always named 39, Regency Square, specific performance was 
 decreed against the purchaser (u). Although a reference to 
 the number may be sufficient, care must be taken that, if any 
 further description is added, such description is accurate. 
 Where a house described as No. 58 on the north side of 
 Pall Mall, opposite to Marlborough House, was proved to 
 
 (s) Duke of Norfolk v. Worthy, i estates bounding it on either side, and 
 
 Camp. 340. the streets on which it abuts at either 
 
 (/) Leach v. MuUett, 3 C. & P. 115. end: New England Hospital v. Sohier, 
 
 In that case there were, however, sev- 115 Mass. 50.] 
 
 era) other misstatements. [Fairchild v. (u) White v. Bradshaw, 16 Jur. 738. 
 
 Fairchild, 59 How. Pr. (N.Y.) 351. But The decision might have gone the other 
 
 a notice of an executor's sale of land in way, if the particulars had contained a 
 
 a city will not be rendered invalid by a reference to the square possessing pecu- 
 
 transposition of the street numbers if liar advantages, such as a sea-view, and 
 
 such further description of the property it had appeared that those advantages, 
 
 is given that a bidder will have no diffi- though enjoyed by other houses in the 
 
 culty in ascertaining what estate is square, were not enjoyed by No. 39: 
 
 meant, as by naming the former occu- Dart, 136. 
 pant of the premises, the owners of the 
 
 [' When it commissioner appointed to sell certain land described it in his 
 advertisement as being in a certain city from which it was really more than half 
 a mile distant, it was held that the purchaser was not to be held to his bid, although 
 the advertisement referred for a more particular description to the complainant's 
 bill, which described it correctly: Campbell v, Johnson, 4 Dana (Ky.) 177.] 
 
 83 
 
*JO PARTICULARS [PART I. 
 
 be, not in Pall Mall, but behind No. 57, Pall Mall, and to be 
 only connected with Pall Mall by a narrow passage leading 
 through the ground floor of No. 57 and communicating with 
 the street by a door numbered 58, this would have been held 
 a material misdescription, if the purchaser had not waived it 
 by his conduct, as it could not be said to be opposite Marl- 
 borough House (v). The contract was, however, rescinded 
 on the ground that there was a misdescription of the means 
 of access to the house. 
 
 General Description of Situation. — Where the description of 
 the situation of the property, [70] though general, is definite, 
 as, "the mill property, including cottages, in Esher village "{x), 
 or "three leasehold houses in Coity, held by mortgagor under 
 a lease " of named date {y), specific performance will be de- 
 creed, parol evidence being admitted to show what property 
 was intended ; but if the property be described by reference 
 to a plan or instrument so vague as not to admit of a legal 
 construction, the defect would, it is conceived, be fatal {s). 
 
 Agreement to sell Land an Agreement to sell Fee Simple. 
 — The tenure must be clearly stated, as also the vendor's 
 interest, if it be not an estate in fee-simple ; for a general 
 agreement to sell land imports an agreement to sell the 
 whole of the vendor's interest in it («), and in the absence of 
 any specific description or stipulation such interest is under- 
 stood to mean an estate in fee-simple {b). And if the vendor 
 cannot show a title as to part, the purchaser will not be bound 
 
 {v) Stanton v. Tattersall, i Sm. & Ch. 83 ; 8 Jur. N.S. 399; 10 W.R. 139. 
 
 G. 529. 535; 17 J"- 967. 969- [And to give a good title: Shreck v. 
 
 {x) McMurray v. Spicer, L.R. 5 Eq. Pierce, 3 Iowa (Clarke) 350.] But it 
 
 527; 37 L.J. Ch. 505. may be shown, even in an action for 
 
 (7) In re Boulter, 4 Ch. D. 241. specific performance, that the purchaser 
 
 (0) Dart, 219, and cases there cited, knew the actual nature of the vendor's 
 
 As to the admissibility of parol evidence interest : Cox v. Middleton, 2 Drew. 
 
 to identify property generally, see post, 209; 23 L.J. Ch. 618. [One who has 
 
 P- '5'- purchased land of an infant at a guard- 
 
 (a) Bower v. Cooper, 2 Hare, 408. ian's sale upon the guardian's actual 
 
 {!)) Dart, 115; Hughes i/. Parker, 8 representations as to the goodness of the 
 
 M. & W. 244 ; 10 L.J. Ex. 297 ; Dillwyn title, which have turned out to be untrue, 
 
 V. Llewellyn, 31 L.J. Ch. 658, 660; Cat- will not be compelled to take the title, 
 
 tell V. Corrall, 4 Y. & C. 228, 236; Phil- though the guardian may not have 
 
 lips V. Caldcleugh, L.R. 4 Q.B. 159; 38 known that the representations were 
 
 L.J.Q.B. 68; Hughes v. Jones, 31 L.J. false: Black v. Walton, 32 Ark. 321.] 
 
 84 
 
CHAP. IV.J AND CATALOGUES. 7 1* 
 
 to complete, if the hope of his obtaining that part was the 
 inducement to him to purchase the whole {c) ; but he may 
 compel the vendor to convey to him that part to which he 
 has a title, with compensation for the rest. Therefore, when 
 the vendors agreed to sell the entirety of certain freehold 
 property and to make out a good marketable title, and it was 
 subsequently discovered that they were entitled [71] to only 
 a moiety of the property, specific performance of the agree- 
 ment was decreed at the suit of the purchaser against them as 
 to the moiety, with an abatement of one-half of the purchase- 
 money {d). Where property described as freehold turned out 
 to be copyhold, the purchaser was allowed to rescind the 
 contract, although manorial rights had not been exercised 
 for a long time {e). Enfranchised copyholds must be so de- 
 scribed, and not as freeholds, especially where the minerals 
 belong to the lord (/). The general rule is that, if an estate 
 is sold as freehold, when it is in fact copyhold, the pur- 
 chaser is not obliged to accept it {g). 
 
 "Partly Freehold, partly Leasehold." — Where property has 
 been described as "partly freehold, partly leasehold," and the 
 
 (f) Peers v. Lambert, 7 Beav. 546; Bromwich Union, 9 W.R. 155; 3 L.T.N. 
 Gibson v. Spurrier, Peake, Add. Cas. 49. S. 662. But where land sold as freehold 
 [The purchaser cannot be compelled to turned out to be copyhold, but it also 
 take a smaller interest than the vendor appeared that under a composition with 
 had agreed to sell: Lyon v. Annable, the lord, the rights of the copyholders 
 4 Conn. 350; Putnam f. Westcott, 19 were such as to render the tenure hardly 
 Johns. (N.Y.) 73; Gillett v. Maynard, 5 different from that of freehold, it was 
 Johns. (N.Y.) 85. But a small defi- held that a purchaser who had taken 
 ciency may be compensated for, and the oljjections after the time prescribed in 
 agreement carried out. See Hepburn the conditions of sale was bound to 
 V. Auld, 5 Cranch, 278 ; Reynolds v. complete. Semble, otherwise, if the mis- 
 Vance, 4 Bibb (Ky.) 213; Henry v. description had been wilful: "Price v. 
 Grady, 5 B. Mon. (Ky.) 450; Soule v. Macaulay, 2 De G. M. & G. 339. 
 Heerman, 5 Miller (La.) 358 ; Weems (/) Upperton u. Nicholson, L.R. 6 
 ■u. Brewer, 2 Harr. & G. (Md.) 390; Ch. 436. If the property has been en- 
 King V. Bardeau, 6 Johns. Ch. (N.Y.) franchised under the copyhold acts, the 
 38; Winne v. Reynolds, 6 Paige (N.Y.) fact should be stated, to avoid dispute as 
 407; Chinn v. Heale, i Munf. (Va.) 63; to reservations in favour of the lord un- 
 Evans v. Kingsbury, 2 Rand. (Va.) 120.] der s. 48 of the act of 1852. 
 
 (r/) Hooper v. Smart, L.R. 18 Eq. (^) Twining v. Morrice, 2 Br. C.C. 
 
 683; cf. Barker v. Cox, 4 Ch. D. 464; 326, 330; Sir Harry Hick v. Phillips, 
 
 46 L.J. Ch. 62; Burrow v. Scammell, 19 Pr. Ch. 575; Hart v. Swaine, 7 Ch. D. 
 
 Ch. D. 175. 42; 47 L.J. Ch. 5, where the sale was 
 
 (J) Turner v. Guardians of West set aside after conveyance. 
 
 85 
 
* 
 
 72 PARTICULARS [PART I. 
 
 boundaries distinguishing the one from the other, though 
 capable of being ascertained with certainty, have not there- 
 tofore been clearly defined, the purchaser will be bound, 
 whether the extent be more or less {k). 
 
 Where property sold as copyhold turned out to be partly 
 freehold, it was held that the vendor could not compel specific 
 performance : " the motives and fancies of mankind are in- 
 finite, and it is unnecessary for a man who has [72] contracted 
 to purchase one thing to explain why he refuses to accept 
 another" {k). And a purchaser of a lease having eight years 
 to run cannot be compelled to take a lease of only six years 
 with an abatement of the price (/). But a small difference 
 in the duration of the term is not so material. Where a lease 
 stated to be for ninety-nine years turned out to be for ninety- 
 seven years, the purchaser was held bound to complete on 
 receiving a proportionate abatement {m). 
 
 Reversionary Estate. — Where property was offered for sale 
 as a reversionary estate absolute on the death of a person 
 aged si.xty-six, whereas the party was only sixty-four, and the 
 reversion was not absolute, the purchaser was held entitled 
 to rescind the contract, notwithstanding that there was a 
 condition for compensation («). And it would seem that a 
 purchaser could resist specific performance, if leaseholds 
 were described as renewable by custom, when no such cus- 
 tom existed {o). 
 
 Underlease. — If the property is held on an underlease, or 
 other property be held with it under the lease, the fact should 
 be stated ; for a concealment of the fact might entitle the 
 
 (/;) Monvo r. Taylor, 8 Hare, 51. 213; Henry v. Grady, 5 B. Mon. (Ky.) 
 
 {k) Per Romilly, M.R., in Ayles v. 450; Soule v. Heerman, 5 Miller (La.) 
 
 Cox, 16 Beav. 23, 24. 358; Weems v. Brewer, 2 Harr. & G. 
 
 (/) Farrer v. Nightingale, 2 Esp. (Md.) 390; King v. Bardeau, 6 Johns. 
 
 639. [Lyon V. Amiable, 4 Conn. 350; Ch. (N.Y.) 38; Winne v. Reynolds, 6 
 
 Putnam v. Westcott, 19 Johns. (N.Y.) Paige (N.V.) 407; Chinn v. Heale, I 
 
 73; Gillett !». Maynard, 5 Johns. (N.Y.) Munf. (Va.) 63; Evans v. Kingsbury, 
 
 85.] 2 Rand. (Va.) 420.] 
 
 (ni) Halsey v. Grant, 13 Ves. 73, («) Sherwood v. Robins, 3 C. & P. 
 
 77; cf. Mortlock u. Buller, 10 Ves. 339; Moo. & M. 194. 
 
 292,306; Belworth z*. Hassell, 4 Camp. (0) Newby i'. Paynter, 22 L.J. Ch. 
 
 140. [See Hepburn I/. Auld, 5 Cranch, 871; 17 Jur. 483. 
 278; Reynolds v. Vance, 4 Bibb. (Ky.) 
 
 86 
 
CHAP. IV.] AND CATALOGUES. 73* 
 
 purchaser to rescind the contract (/). Where premises were 
 described as "a freehold house and garden, with a coach- 
 house and stable held on a lease " of named term and at a 
 stated ground rent, and it appeared on investigation that the 
 coach-house and stable were held on an underlease, [73] to- 
 gether with some other buildings, at a higher ground rent 
 than that stated, and that the underlease was subject to the 
 rent reserved by the superior lease, and liable to forfeiture on 
 non-payment or non-observance of the covenants contained 
 in the superior lease, the purchaser was allowed to rescind 
 the contract, the coach-house and stable being held to be a 
 material portion of the property, and therefore a defect in 
 title as to them not cured by the compensation clause in the 
 conditions {q) 
 
 Nature of Tenancy. — If the property put up for sale, or any 
 portion of it, is let, the particulars should state the nature and 
 term of the tenancy, the names of the tenants or tenant, the 
 amount of rent, and any unusual covenants restrictive of ab- 
 solute ownership (r). Where premises were stated to be in 
 the joint occupation of A. and B. as lessees, when in fact 
 they had been demised to C, and by C. assigned to A., who 
 was, together with B., in the occupation of them at the time 
 of sale, the vendor would not, apparently, have been entitled 
 to compel the purchaser to complete, even with compensa- 
 tion {s). And where part of the property was misstated to be 
 let at a named rent, and other parts to named tenants at cer- 
 tain rents, but the tenancies had determined under notices, the 
 purchaser was allowed to rescind the contract, notwithstand- 
 ing that there was a condition providing for compensation [t). 
 
 (/) Blake v. Phinn, 3 C.B. 976; 16 70; cf. Dobell v. Hutchinson, 3 A. & 
 L.J.C.P. 159; Law V. Urlwin, 16 Sim. E. 355; 5 N. & M. 251; i Har. & W. 
 377; Madeley v. Booth, 2 De G. & S. 394. 
 718; Brumfit V. Morton, 3 Jur. N.S. {r) I Dav. 515. 
 H98; Hayford v. Criddle, 22 Beav. (s) Ridgway v. Gray, i Mac. & G. 
 477, 479; Darlington </. Hamilton, I 109; I H. & Tw. 195; but if the pur- 
 Kay, 557; 23 L.J. Ch. 1000, where the chaser had known the actual facts, he 
 point was considered doubtful : but see wouldhavebeencompelled to complete : 
 Camberwell and South London Building Farebrother v. Gibson, i De G. & J, 
 Society v. HoUoWay, 13 Ch. D. 754; 602. [l Story, Eq. Jur. § 202.] 
 49 L.J. Ch. 361. (/) Dimmock v. Hallett, L.R. 2 Ch. 
 
 (;?) Turner v. Turner, W.N. 1 881, 21. [This was like an afifirmation that 
 
 87 
 
*74-7S PARTICULARS [PART I. 
 
 Nature of Covenants. — And where a lessee of lands subject 
 to a covenant against certain obnoxious trades, with a proviso 
 for re-entry, granted underleases of houses erected on the 
 land, [74] not containing a similar covenant or proviso, it was 
 held that a purchaser by auction of other houses on the same 
 land and of the improved ground rents of the houses so un- 
 derlet might recover back his deposit, the omission in the 
 underleases not having been mentioned (ti). And a vendor 
 of property in lease is not justified in stating in the particu- 
 lars the existence of covenants beneficial to the estate, which 
 he has good reason to believe cannot be enforced (x). 
 
 Income. — It is usual to insert the amount of rent which 
 the estate produces, or is capable of producing ; and the 
 amount, if known, should be accurately stated, or a fair esti- 
 mate of it given, otherwise the purchaser will be entitled to 
 compensation {y), or even to be discharged from the con- 
 tract {z). Such an expression as "clear yearly rent" means 
 that the income is clear of all outgoings usually borne by the 
 tenant, but subject to such (e.g. land-tax) as are usually borne 
 by the landlord {a). 
 
 Rights of Other Parties. — The rights of other parties must 
 be accurately stated, for the interest offered for sale will be 
 presumed to be accompanied by all those advantages which 
 are legally incident to it {b), and the omission to mention any 
 charge upon the [75] estate or any right restrictive of the 
 purchaser's absolute enjoyment of it may render the sale 
 voidable by the purchaser, or at any rate entitle him to com- 
 
 the estate yielded a greater rent than was held to be not such a misdescription 
 
 was actually the case. See Boynton v. as to entitle the purchaser to compen- 
 
 Hazleboom, 14 Allen (Mass.) 107; sation. 
 
 Brown v. Castles, 1 1 Cush. (Mass.) (z) Swaisland v. Dearsley, 29 Beav. 
 
 348, 350.] 430; 30 L.J. Ch. 652; Dimmock v. 
 
 (m) Waring v. Hoggart, Ry. & M. Hallett, L.R. 2 Ch. 21. [_Antea, p. 73, 
 
 39. a. /.] 
 
 {x) Dart, 119; Flint v. Woodin, 9 (a) Earl of Tyrconnell i/. Duke of 
 
 Hare, 618; 16 Jur. 719, 720. Ancaster, Amb. 237; 2 Ves. Sen. 500; 
 
 {y) Lysney v. Selby, 2 Ld. Raym. Sugd. 28. Ordinarily all rates and 
 1118; I Salk. 2\i, sub nam. Risney taxes fall upon the tenant, in the absence 
 V. Selby. But in White v. Cuddon, 8 of express agreement. See Woodf. 
 CI. & Fin. 766; 6 Jur. 471, where the 528, where the exceptions to the gen- 
 nature of the income was misstated, but eral rule are stated, 
 the amount proved to be greater, that (i) Dart, 115, and cases there cited. 
 
CHAP. IV.] AND CATALOGUES. 76* 
 
 pensation (c). Where a purchaser discovered that another 
 person had a right to dig coal, he was held entitled to com- 
 pensation id). And specific performance against a purchaser 
 was refused, where land sold by auction was described as 
 eligible for building purposes, whereas it afterwards appeared 
 that third parties had a right to have water supplied through 
 portions of the land by means of an underground watercourse, 
 with liberty to open and clean the same on making satisfac- 
 tion for damage done by them in doing so {e). And where 
 land was sold with a reservoir and waterworks yielding a 
 yearly rental of £60, and it was discovered that this rent , 
 arose from supplying houses separated from the reservoir by 
 the property of strangers, over which the vendor had merely 
 a permissive right to convey it, the Court held that he could 
 not enforce specific performance (/). 
 
 And if a house be sold " with all lights " belonging to it, a 
 statement in the particulars that adjoining land is building 
 land belonging to the vendor does not authorize the vendor, 
 or a purchaser irSm. him, to build upon the adjoining land so 
 as to obstruct such lights {g). The two following [76] gen- 
 eral rules have been laid down by Thesiger, LJ., as appli- 
 cable to cases where one lot of several is sold. ist. On the 
 grant by the owner of a tenement of part of that tenement as 
 it is then used and enjoyed, there will pass to the grantee all 
 
 (c) Dart, : 16, and cases there cited : (^) Ramsden i/. Hurst, 4 Jur. N.S. 
 
 Snelling z/. Thomas, L.R. 17 Eq. 303; 200; 6 W.R. 349; Seaman i". Vawdrey, 
 
 43 L.J. Ch. 506. [But a rent-charge 16 Yes. 390. 
 
 of fifty-four cents a year, the existence (<•) Shackleton v. Sutcliffe, i De G. 
 
 of which moreover was known to the & S. 609; 12 Jur. 199. 
 purchaser, was held to be no objection {/) Price v. Macaulay, 2 De G.M. 
 
 to enforcing specific performance at the & G. 339, where the objection was talcen 
 
 suit of the vendor, in Ten Broeck v. Liv- after the time prescribed in the condi- 
 
 ingston, I Johns. Ch. (N.Y.) 357. So tions. 
 
 a reservation of a nominal rent, and of {g) Swanborough v. Coventry, 9 
 
 mines and water privileges, and a pre- Bing. 305; 2 Moo. & S. 362; 2 L.J.C.P. 
 
 emptive right of purchase, there being 1 1, explained in Wheeldon v. Burrows, 
 
 no mines or water privileges on the l2Ch. D. 31; 48 L.J. Ch. 853; and see 
 
 premises, and the owner of the pre- Booth v. Alcock, L.R. 8 Ch. 663; 42 
 
 emptive right of purchase having agreed L.J. Ch. 557; Master v. Hansard, 4 Ch. 
 
 to relinquish it : Winne f. Reynolds, 6 D. 718; 46 L.J. Ch. 505; AlIeni/.Tay- 
 
 Paige (N.Y.) 407. A ground rent is lor, 16 Ch. D. 355; 50 L.J. Ch. 178. 
 
 ground for a rescission of the contract: [Story v. Odin, 12 Mass. 157.] 
 Cans V. Renshaw, 2 Penn. St. 34.] 
 
 89 
 
*j6 
 
 PARTICULARS 
 
 [part I. 
 
 those easements which are necessary to the reasonable en- 
 joyment of the property granted, and which have been and 
 are at the time of the grant used by the owners of the en- 
 tirety for the benefit of the part granted. 2nd. If the grantor 
 intends to reserve any right over the tenement granted, it is 
 his duty to reserve it expressly in the grant {h). 
 
 Incumbrances. — And all incumbrances should be men- 
 tioned (?'). Where property subject to two mortgages was 
 described in the particulars as an absolute reversion, no men- 
 tion being made of the mortgages, the purchaser was allowed 
 to rescind the contract {j). And where property was sold as 
 freehold, without reference to the fact that part of it was out 
 upon leases for lives, the vendor was held not entitled to en- 
 force specific performance {k). And anything which may 
 determine the vendor's interest should appear (/) ; for, where 
 
 (Ji) Wheeldon v. Burrows, 12 Ch. 
 D. 31, 49; 48 L.J. Ch. 853, 856; where 
 it was, however, said that the grantor 
 would be entitled as of right to a way 
 of necessity : considered in Allen v. 
 Taylor, 16 Ch.D. 355; 50 L.J. Ch. 178; 
 but it seems that such way would be 
 only such a right of way as would ena- 
 ble the grantor to enjoy his portion of 
 the tenement in the condition in which 
 it happened to be when the other por- 
 tion of the tenement was sold ; see 
 Corporation of London v. Riggs, 13 Ch. 
 D. 798; 49 L.J. Ch. 297. 
 
 (z) [See Ward !<. Wiman, 1 7 Wend. 
 (N.Y.) 193; Burnet v. Denniston, 5 
 Johns. Ch. (N.Y.) 35; such as a reser- 
 vation that the front part of a lot shall 
 not be built upon : Matter of Whitlock, 
 32 Barb. (N.Y.) 48; s.c, 10 Abbott, 
 Pr. 316; 19 Howard, Pr. 380.] The 
 fraudulent concealment of an incum- 
 brance is a misdemeanour : 22 & 23 
 Vict. c. 35, s. 24. See Smith v. Robin- 
 son, 13 Ch. D. 148. [If at a sheriffs 
 sale the judgment creditor falsely rep- 
 resents that his judgment is the first lien 
 on the property, and it afterwards turns 
 out that there are prior incumbrances 
 exceeding its value, the purchaser will 
 be relieved from his bargain : Webster 
 
 V. Haworth, 8 CaUf. 21. So, if the pur- 
 chaser at a sale made in foreclosure of 
 a second mortgage is by false represen- 
 tations inducecrto believe that the pro- 
 ceeds of the sale will be applied to the 
 payment of the first mortgage, so that 
 he will take an unincumbered title, he 
 may have the sale set aside : Paulett v. 
 Peabody, 3 Nebraska, 196. But where 
 a farm sold on an execution was bid in 
 by the judgment creditors through their 
 attorney, it was held that his failure, by 
 reason of recent illness, to remember 
 the existence of prior incumbrances 
 upon the property afforded no ground 
 for releasing them from their purchase : 
 Benedict v. Jones, 18 Hun. (N.Y.) 527. 
 And parol evidence that the purchaser 
 at a public sale was aware of the true 
 state of facts concerning the title to the 
 property, although different from what 
 is stated in the particulars and condi- 
 tions of sale, is admissible to show that 
 he was not actually misled by the mis- 
 statements: Jewettt'.Miller,ioN.Y.402.] 
 
 (/) Torrance v. Bolton, L.R. 14 Eq. 
 124; 41 L.J. Ch. 643; aff. L.R. 8 Ch. 
 118; 42 L.J. Ch. 177. 
 
 (-4) Hughes V. Jones, 31 L.J. Ch. 
 83; 8 Jur. N.S. 399; loW.R. 139. 
 
 (/) Dart, 117. 
 
 90 
 
CHAP. IV.] AND CATALOGUES. 77-78* 
 
 a redeemable annuity was sold simply as an annuity {m), and 
 [77] leasehold houses were sold without mention of a private 
 act of parliament which gave a company the right to purchase 
 them, the sales were held invalid («). But it is not necessary 
 to mention matters, affecting the property, of which the pur- 
 chaser has notice. On the sale of leaseholds the vendor is 
 not bound to state that the covenants in the lease are unusu- 
 ally stringent, as notice of the lease is notice of its con- 
 tents (p) ; but in such a case a reasonable opportunity ought 
 to be allowed the purchaser of examining the lease (/). And 
 any liability to which a purchaser will be subject under the 
 lease should be stated, if it is not such as would appear on 
 the face of the lease itself. Where a lease containing the 
 usual covenant to deliver up the premises in good repair at 
 the end of the term is sold, and any of the demised buildings 
 have been removed, the fact should be stated ; the mere 
 omission of the buildings from the particulars will not debar 
 the purchaser from rescinding the contract {q). And also, 
 where a landlord had given notice to his lessee (under a cove- 
 nant in the lease) that he should re-enter, if the premises 
 were not put into repair within three months, and the auc- 
 tioneer put up the lease for sale without communicating the 
 notice to the purchaser, the latter was held entitled to recover 
 his deposit from the [78] auctioneer, although he knew the 
 dilapidated state of the premises at the time of sale ir). If 
 the covenants of a lease are set out, they ought to be stated 
 exactly, and without concealment of material facts. " Com- 
 mon and usual covenants," in a lease of a public-house, have 
 
 («) Coverly v. Burrell, 5 B. & Aid. Hayford v. Criddle, 22 Beav. 477. In 
 
 957. Darlington v. Hamilton, i Kay, 550; 
 
 (k) Ballard v. Way, I M. & W. 23 L.J. Ch. 1000, it was considered 
 
 520. The decision would perhaps have doubtful whether the doctrine that a 
 
 gone the other way, if the company's purchaser of leaseholds, or of freeholds 
 
 rights had been given by a pubUc act. subject to a lease, has notice of the cov- 
 
 {0) Dart, 117; Hall v. Smith, 14 enants in the lease can be extended to 
 
 Ves. 426; Pope V. Garland, 4 Y. & C. fix him with notice of collateral facts 
 
 394; 10 L.J. Ch. (Ex. Eq.) 13; Pater- stated in such covenants, 
 
 son V. Long, 6 Beav. 590; 13 L.J. Ch. (/) Brumfit v. Morton, 3 Jur. N.S. 
 
 I; Lewis v. Bond, 18 Beav. 85; Pat- 1196, 1202. 
 
 man v. Harland, 17 Ch. D. 353; 50 (?) Granger i/. Worms, 4 Camp. 85. 
 
 L.J. Ch. 642. As to underleases, see (?■) Stevens v. Adamson, 2 Stark, 
 
 Flight V. Barton, 3 Myl. & K. 282; 422. 
 
 91 
 
*79 PARTICULARS [PART I. 
 
 been construed to include covenants to pay land-tax, sewers- 
 rate and other taxes, and a proviso for re-entry if any busi- 
 ness but that of a licensed victualler should be carried on 
 in the house (s). 
 
 "No Offensive Trade." — Where the particulars stated that 
 no offensive trade was to be carried on, and that the premises 
 could not be let to a coffee-house keeper or working hatter, 
 and the original lease prohibited the businesses of brewer, 
 baker, sugar-baker, vintner, victualler, butcher, tripe-seller, 
 poulterer, fish-monger, cheese-seller, fruiterer, herb-seller, 
 coffee-house keeper, working hatter, and many others, and 
 the sale of coals, potatoes, or any provisions, it was held that 
 the description was insufficient, and that the purchaser might 
 rescind the contract (t). 
 
 Easements, &c. — Any easements over the property should 
 be noticed,^ such as rights of way (tt) ; also all rights of sport- 
 ing (x), of common (_y), and the like (s). 
 
 [79] Outgoings. — Anything in the nature of a permanent 
 charge, such as ground rents (a) or a rent charge (6), on the 
 property should be stated (c) ; and it is advisable, even where 
 
 (i) Bennett t'. Womack, 7 B. & C. of a pipe. At a sale by auction of the 
 
 627 ; I Man. & R. 644. landlord's property A. and B. purchased 
 
 (/) Flight z/. Booth, i Bing. N.C. their respective premises, " subject to 
 
 370; 3 L.J.C.P. 66. all rights of way and water and other 
 
 (u) Dykes v. Blake, 4 Bing. N.C. easements, if any, subsisting thereon.'' 
 
 463; 6 Sco. 320; 7 L.J.C.P. 282; 10 Held that B. had no easement or right 
 
 W.R. 665; cf. J>os/, p. 80, note (o). of water, but merely a licence from his 
 
 But if the right of way be patent and landlord during his tenancy : Russell v. 
 
 obvious, the maxim caveat emptor ap- Harford, L.R. 2 Eq. 507. 
 plies: Boyles v. Round, 5 Ves. 509. (a) Jones z/. Rimmer, i4Ch. D. 588; 
 
 (jr) Burnell .■. Brown, i Jac. & W. 49 L.J. Ch. 775; Mills v. Oddy, 6 C. & 
 
 168. P. 728; Barnwell v. Harris, i Taunt. 
 
 (^') Gibson v. Spurrier, Peake, Add. 430. 
 Cas. 49. (i) Sugd. 312. 
 
 (:) There is a difference between an (c) If the estate be liable to repair 
 
 easement and a mere licence. A. and B. the chancel of a church, a purchaser 
 
 were tenants of adjoining premises un- buying without notice would not, ap- 
 
 der the same landlord. On A.'s pre- parently, be compelled to perform the 
 
 mises was n well, from which B's pre- contract: Horniblow v. Shirley, 13 Ves. 
 
 mises were supplied with water by means 81 ; cf. Binks v. Rokeby, 2 Swan. 222. 
 
 [' If a right of use and occupation, though specified in the vendor's written 
 instructions to the auctioneer, has not been mentioned through the latter's error, 
 it was held in Bodin v. McClosky, 11 La. Ann. 46, that neither the vendor nor 
 the purchaser would be bound by the sale, but the auctioneer would be liable for 
 his negligence.] 
 
CHAP. IV.] AND CATALOGUES. 80* 
 
 it distinctly appears by the particulars that the land is held 
 of a manor, to refer to the existence of quit rents and heriots, 
 as the fact of their non-disclosure may at least entitle the 
 purchaser to compensation {d) ; but it is not necessary on the 
 sale of copyholds to refer to the fines or customs of the ma- 
 nor {e), although it is expedient to mention at least the fines, 
 as the value of the property depends a good deal on the fact 
 whether the fines are arbitrary or fixed (/). Although it 
 does not seem to be necessary to mention rates and taxes to 
 wJiich the property is subject under a public, though local, 
 act of parliament {g), they ought to be stated, if levied under 
 a private act {h). 
 
 Rent an Outgoing. — Where on the sale of leasehold prem- 
 ises it was stated that all outgoings up to a day named were 
 to be cleared by the vendors,-the Court held that an appor- 
 tioned part of the current rent from the last quarter-day to 
 the day named was an outgoing and must be allowed to the 
 purchaser {i). 
 
 [80] "Customary Kent." — The term "customary rent" 
 means " a rent which entitles the occupier to hold so long as 
 he pays" {k). 
 
 Plans: Necessity for Accuracy in. — When a plan of the 
 property to be sold is referred to in, or accompanies, the par- 
 ticulars, or is exhibited in the sale-room, it must be prepared 
 with as much regard to accuracy as the particulars them- 
 selves ; for, if the purchaser is misled by misdescriptions or 
 omissions to show things which ought to have appeared, he 
 may be entitled to compensation or rescission of the con- 
 tract (/). Where a plan represented adjoining land so as to 
 
 (rf) Dart, 1 1 8; Damerell w. Prothe- (0 Lawes i/. Gibson, L.R. I Eq. 135; 
 
 roe, ID Q.B. 20; 16 L.J.Q.B. 170; Lord 35 L.J. Ch. 148. 
 Chichester v. Hall, 17 L.T.O.S. 121. (-f-) Per Fry, J., in Vivian v. Moat, 
 
 (^) Dart, 117; Brumfit -v. Morton, 3 16 Ch. D. 730, 733; 50 L.J. Ch. 331. 
 Jur. N.S. 1 198. (0 P°P« "• Garland, 4 Y. & C. 394, 
 
 (/) I Dav. 514. 404; 10 L. J. Ch. (Ex. Eq.) 92, where 
 
 {g) Barraud v. Archer, 2 Sim. 433 ; the plan omitted to show an objection- 
 
 aff. 2 Russ. & M. 751. able projection of one house over an- 
 
 (_h) Ballard v. Way, i M. & W. 520. other, the defect not being visible to the 
 
 If any rates and taxes, usually borne by eye. [The objection that property was 
 
 the tenant, are borne by the landlord, sold by a map which showed some four 
 
 the fact should be mentioned. or five feet of frontage and about six 
 
 93 
 
*8l PARTICULARS [PART I. 
 
 make it apparently part of the property, specific performance 
 was refused to the vendor {in). And where an estate pur- 
 ported to be offered for sale in lots subject to restrictive 
 covenants as to the trades to be carried on upon the estate, 
 and a small plot which the vendor retained did not appear 
 upon the plan as part of the estate, the Court refused to en- 
 force the contract against the purchaser of one of the lots, 
 unless the vendor entered into similar restrictive covenants 
 as to the excepted lot (;z). And so, where a plan omitted to 
 show a right of way which existed over a lot offered for sale, 
 the purchaser was held entitled to rescind the contract, 
 although the existence of the right of way appeared in the 
 lease, which was referred to in the particulars {o). Also, 
 where the plan which accompanied the [81] particulars of a 
 farm showed that the vendor was apparently entitled to the 
 whole of one of the parcels, whereas it afterwards appeared 
 that he was only entitled to four-sevenths, the purchaser was 
 held not bound to complete (/). Where the plan of property 
 contained an outline of some common land adjoining, but not 
 part of it, the purchaser was held entitled to resist specific 
 performance, because, although the particulars made no men- 
 tion of the piece of common land, yet the insertion of it in 
 the plan caused an ambiguity which might have misled the 
 purchaser {q). But a plan which accurately represents the 
 physical aspect of the property is merely tantamount to a 
 view ; ^ so that, where an estate was sold in lots, and it cor- 
 
 inches of depth more than it proved to Lords held that the omission to show 
 
 contain may be removed by an allow- on the plans a right of way which ex- 
 
 ance on the price, and is not a sufh- isted did not entitle the purchaser, in 
 
 cient ground to rescind the contract : the absence of fraud, or proof that the 
 
 Jennings v. Jennings, 2 Abbot Pr. vendor knew of its existence, to rescind 
 
 (N.Y.) 6.] the contract after conveyance executed. 
 
 (m) Denny v. Hancock, L.R. 6 Ch. But see criticism on this case, Sugd. 328. 
 
 i; cf. Weston v. Bird, 2 W.R. 145. [See Lallande v. Wentz, 18 La. Ann. 
 
 («) Baskcomb v. Beckwith, L.R. 8 289.] 
 Eq. 100; 38 L.J. Ch. 536. {f) In re Arnold, 14 Ch. D. 270. 
 
 {0) Dykes -u. Blake, 4 Bing. N.C. \q) Weston v. Bird, 2 W.R. 145. 
 
 463; 7 L.J.C.P. 282; 6 Scott, 320; lo The purchaser was, however, refused 
 
 W.R. 665. But in Wilde v. Gibson, i costs, on the ground that there was 
 
 II.L.C. 605; 12 Jur. 527, the House of enough doubt to induce investigation. 
 
 [' At a commissioner's sale of land, a plat was exhibited which represented a 
 river as running through the tract, and covering a portion of the land, and the 
 
 94 
 
CHAP. IV.J AND CATALOGUES. 82* 
 
 rectly appeared by the plan that lot i was supplied with water 
 by a drain leading from a well in lot 4, this was held not to 
 amount to any engagement on the part of the vendor that 
 there should be a reservation of a right to water in the con- 
 veyance of lot 4, and compensation was refused to the pur- 
 chaser of lot I (r). So also on the sale of building ground, 
 the exhibition, on the plan, of intended roads or other im- 
 provements on the adjacent land does not bind the vendor to 
 make or execute such roads or improvements (s), nor entitle 
 the purchaser to [82] a grant of a right of way over such 
 roads, except such as form the direct means of communica- 
 tion with the nearest highway (/) ; but a vendor would not be 
 allowed to divide and appropriate the land in a different man- 
 ner, so as to produce an occupancy and population entirely 
 different from what there would probably have been, if the 
 plan proposed at the sale had been adhered to (u).^ 
 
 (r) Fewster v. Turner, 6 Jur. 144; out of his power to carry out the im- 
 
 II L.J. Ch. 161. The propriety of this provements shown on the plan could 
 
 decision has been doubted : Sugd. 25. enforce specific performance, although 
 
 (s) Dart, 121, and the following the purchaser might not, perhaps, be 
 
 cases there cited : Feoffees of Heriot's able to rescind the agreement. 
 Hospital z/. Gibson, 2 Dow. 301; Squire (i) Randall v. Hall, 4 De G. & S. 
 
 V. Campbell, I My. & C. 459; 6 L.J. 343. But it is doubtful whether a ven- 
 
 Ch. 41; Nurse v. Lord Seymour, 13 dor refusing to grant a right of way 
 
 Beav. 254, 269; Schreiber v. Creed, 10 could enforce specific performance: 
 
 Sim. 9; 8 L.J. Ch. 346; but see Beau- Dart, 121. 
 
 mont V. Duke, Jac. 422; Nicholson v. (ti) Peacock v. Penson, 1 1 Beav. 
 
 Rose, 4 De G. & J. 10; and it is doubt- 355; l8 L.J. Ch. 57. 
 ful whether a vendor who had put it 
 
 land was sold by the acre : the river, at a place where it ran through the tract, 
 contained obstructions to navigation, but was navigable for boats above and below 
 that place ; and it was held that the purchaser was not entitled to an abatement 
 of his purchase-money for that portion of the land which was covered by the river : 
 Shands v. Triplet, 5 Rich. Eq. (So. Car.) 76.] 
 
 [' If the vendor of land describes it as bounding upon a street, this will not, 
 though he owns the strip of land which he has thus described as a street, entitle 
 the grantee to compel him in equity to open and maintain this strip as a street : 
 Hennessy v. Old Colony & Newport R.R. Co., loi Mass. 540. But the vendor 
 will not be allowed to interfere in any way with the grantee's use of such strip of 
 land as a street or way : White v. Flannigain, I Md. 525 ; Moale v. Baltimore, 5 
 Md. 314; Howe V. Alger, 4 Allen (Mass.) 206; Farnsworth v. Taylor, 9 Gray 
 (Mass.) 162; Thomas z/. Poole, 7 id. 83; Loring z/. Otis, 7 id. 563; Walker v. 
 Worcester, 6 id. 548; Tufts v, Charlestown, 2 Gray (Mass.) 271; Parker v. 
 Framingham, 8 Met. (Mass.) 260, 267; O'Linda v. Lothrop, 21 Pick. (Mass.) 
 292; Emerson v. Wiley, 10 id. 310; Parker v. Smith, 17 Mass. 413; Livingston v. 
 
 95 
 
*82 PARTICULARS AND CATALOGUES. [PART I. 
 
 Lithographic Plans. — It is dangerous, when a lithographic 
 plan is used, to introduce a scale of dimensions, as the paper 
 upon which such plans are usually prepared is apt to shrink 
 in an abnormal manner. It is bet1:er to rely upon the dimen- 
 sions stated in the documents of title (v). 
 
 (y) Some forms of particulars and catalogues are given post, pp. 293-306. 
 
 New York, 8 Wend. (N.Y.) 85; Lewis Street, matter of, 2 id. 472; Bellinger v. 
 Union Burial Ground Society, 10 Penn. St. 135. Dewey, J., says in Farnsworth v. 
 Taylor, 9 Gray (Mass.) 166, that the position is "well maintained by authority 
 and sound in principle that where land is conveyed which is situate on a street or 
 way, and reference is made in the deed of conveyance to a plan on which said 
 street is delineated, the plan exhibited at the sale and subsequently recorded by 
 the grantor in the registry of deeds, is made a part of the deed, and estops the 
 grantor and those claiming under him to deny the existence of the street as 
 delineated on the plan." See also Keay v. N. O. Canal Co., 7 La. Ann. 259 ; 
 Brunning v. N. O. Canal Co., 12 La. Ann. 541; Rodgers v. Parker, 9 Gray 
 (Mass.) 445; Morgan v. Moore, 3 id. 319; Davis v. Rainsford, 17 Mass. 207; 
 Lunt V. Holland, 14 Mass. 149; Livingston v. New York, supra. Where the 
 vendor at an auction sale of lots in New York City produced a map which repre- 
 sented a strip of land as 135th Street, and the auctioneer sold the lots as laid out 
 upon that strip and upon a boulevard which was represented by the map as cross- 
 ing it, it was held that the purchaser of lots, having seen the map before bidding, 
 was entitled to a conveyance describing the lots in terms as bounded by 135th 
 Street, and w.as not obliged to content himself with a deed which merely stated 
 that they were bounded by a certain strip of land designated and laid out as 135th 
 Street on the map or plan of the City of New York : Phillips v. Higgins, 7 Lans. 
 (N.Y.J 314. And such a purchaser would also be entitled to claim as against the 
 vendor's acts all the usual accessories of a street ; Keay v. N. O. Canal Co., and 
 Brunning v. N. O. Canal Co., supra."] 
 
 96 
 
CHAP, v.] 
 
 CONDITIONS OF SALE. 
 
 83-84* 
 
 [83] 
 
 CHAPTER V. 
 
 CONDITIONS OF SALE. 
 
 I. — General Remarks upon Conditions of Sale. 
 
 Auctions Generally under 'Written Conditions. — All sales by 
 auction are made subject to certain conditions, express or 
 implied, with reference to all or some of the following mat- 
 ters : 1 the biddings, the payment of a deposit, the signing of 
 a contract, the quantity or quality of the subject-matter of 
 the sale, the title to be given by the vendor, the evidence 
 of title, the completion of the purchase, misdescriptions 
 in the particulars or catalogue, forfeiture of the deposit, and 
 a resale of the property {a). As a rule, [84] the conditions 
 
 (a) In Scotland conditions of sale 
 are called articles of roup, which are 
 thus described in Bell's Dictionary, p. 
 76 : " Articles of roup are the condi- 
 tions under which property is exposed 
 to sale by auction. They refer generally 
 to the nature of the right to be trans- 
 ferred, specify the titles by which the 
 property is to be conveyed, regulate the 
 manner of bidding, prescribe the rules 
 by which offerers are to be preferred, 
 and name a person to be judge of the 
 roup, before whom the procedure takes 
 place, and who is empowered to declare 
 the purchaser. These articles are exe- 
 cuted by the exposer on stamped paper, 
 and when the day of sale arrives, they 
 are read over in presence of the meet- 
 ing at the place and time appointed for 
 the sale. The subject being exposed to 
 sale by an auctioneer, a minute of the 
 offers is made, generally on the back of 
 the articles, and signed by each offerer, 
 
 [' Where a sale is made under specific or restricted terms, the auctioneer is not 
 bound to notice a bid which is coupled with other terms or conditions : Moore v. 
 Owsley, 37 Texas, 603. And it is the duty of the officer conducting a public sale 
 
 97 
 
 and the highest offerer at the outrunning 
 of a sand-glass is declared to be the 
 purchaser by the judge of the roup. 
 Minutes of the procedure are made and 
 regularly signed and attested at the 
 time of sale. These articles contain a 
 clause of registration, by which the 
 parties consent to a decree going out in 
 terms of the conditions, under which 
 they may be enforced by the diligence 
 of the law. Besides the rules and con- 
 ditions expressed in the written articles 
 of roup there are implied rules binding 
 on both parties. Thus, the exposer 
 must bring the subject fairly to sale, and 
 not attempt to raise the price by the 
 assistance of a whitebonnet, or fictitious 
 offerer; and, on the other hand, there 
 must be no combination among the 
 offerers to suppress the natural ardour 
 of competition amongst intending pur- 
 chasers." 
 
*84 CONDITIONS OF SALE. [PART I. 
 
 are reduced into writing or print, by or on behalf of the 
 vendor {b). 
 
 It is obvious that the conditions of sale will vary according 
 to the nature of the property sold, the state of the title to the 
 property, the character in which the vendor sells, and other 
 circumstances.* 
 
 Real Estate. — Upon a sale of personal property, the prepar- 
 ation of the conditions of sale is rarely a matter of any great 
 difficulty ; but upon sales of real estate, owing to the com- 
 plexity of our system of tenures, the framing of the condi- 
 tions often severely taxes the resources of the draftsman {c). 
 
 As to Auctioneer Drawing Conditioua. — An auctioneer should 
 never prepare conditions of sale of real estate : his doing so 
 will expose him to great risk {d). On the other hand, he 
 should be careful, in selling an estate by private treaty, to 
 make his offer to sell, or his acceptance of an offer to pur- 
 chase, conditional upon a formal contract to be prepared by 
 the vendor's solicitor. If he omit to do this, the sale will be 
 upon an open contract, and serious consequences are likely 
 to ensue. 
 
 ((5) As to when writing is necessary, sonalty is included in any remark, the 
 
 see post. Chapter VIII. It is said that fact, unless obvious, will be found spe- 
 
 where a sale is made public by statute cially mentioned. 
 
 the seller has no right to make any reg- (rf) Denew v. Daverell, 3 Camp, 
 
 ulations in the conditions respecting the 451. [But if the vendor is present at 
 
 admissibility of persons to become buy- the sale, and hears the conditions, his 
 
 ers : Eagleton v. East India Company, failure to object to them may preclude 
 
 3 B. & P. 55 — Morton, V. & P. 155. him from afterwards objecting to them 
 
 (<■) This chapter consequently relates as improper. See Bottoms v. Mithvin, 
 
 principally to real estate. Where per- 26 Ga. 481.] 
 
 to see that the conditions are complied with before he parts with the property : 
 McCall V. EUiott, Dudley (So. Car.) 250; Singleton v. Herriott, id. 254. On the 
 same principle, if the lowest bidder for a contract for putting up public buildings 
 fails to give bond as required within a reasonable time, his right to the contract 
 passes to the next lowest bidder upon the latter's complying with the conditions : 
 State V. Licking County, 26 Ohio St. 531.] 
 
 [' A sheriff or master charged with the conduct of a judicial sale has a consid- 
 erable latitude of discretion in prescribing such terms of sale as will exclude 
 puffers and fraudulent bidders, and secure the confidence of honest purchasers 
 in offering their bids : National Bank of Metropolis v. Sprague, 20 N.J. Eq. (5 
 C. E. Green) 159. ■■ If the manner and time of a judicial sale are not prescribed by 
 the decree, they must be governed by the sound discretion of the person appointed 
 to conduct the sale : Blossom v. Railroad Co., 3 Wallace, ig6, 208.] 
 
 98 
 
CHAP, v.] 
 
 CONDITIONS OF SALE. 
 
 85^ 
 
 Obligation of Vendor to Make a Title. — In contracts for the 
 sale of real estate an agreement to make a good title is always 
 implied, unless that liability is expressly excluded {e). 
 
 [85] Investigation of Title Prior to Sale. — An intending ven- 
 dor of real estate will, therefore, first examine his title, to see 
 how far it can be safely subjected to adverse scrutiny ; and 
 
 (J) Deverell v. Lord Bolton, 1 8 Ves. 
 505, 512; Doe d. Gray v. Stanion, i M. 
 & W. 701; 2 Gale, 154; Barnett v. 
 Wheeler, 7 M. & W. 364; Worthington 
 V. Warrington, 5 C.B. 636; 18 L.J.C.P. 
 350; Hoy V. Smithies, 2 Jur. N.S. loi i ; 
 Wells V. Guttling, 7 W.R. 448; Blach- 
 ford V. Kirkpatrick, 6 Beav. 232. See 
 post, p. 94, as to the purchaser's rights 
 incidental to the vendor's obligation to 
 make a title. [The purchaser is entitled 
 to demand a marketable title : Watts v. 
 Waddle, i McLean, G.C. 200; s.c, 6 
 Peters, 389; Sohier v. Williams, i Cur- 
 tis, G.C. 479; Morgan v. Morgan, 2 
 Wheaton, 290, 299; Hepburn v. Dun- 
 lop, I Wheaton, 179; Thrifft v. Frittz, 
 7 Ills. App. 55; Ormsby v. Terry, 6 
 Bush (Ky.) 553; Lewis i). Herndon, 
 3 Litt. (Ky.) 358; Kelley v. Bradford, 3 
 Bibb (Ky.) 317; Beckwith v. Kouns, 
 6 B. Mon. (Ky.) 222; Tomlin v. Mc- 
 Chord, 5 J.J. Marsh. (Ky.) 135; Young 
 V. Lillard, i A.K. Marsh. (Ky.) 481; 
 Bartlett v. Blanton, 4 J.J. Marsh. (Ky.) 
 426; Hunting v. Walter, 33 Md. 
 60; Sturtevant 7/. Jaques, 14 Allen 
 (Mass.) 523; Park z;. Johnson, 7 id. 378, 
 383; Richmond v. Gray, 3 id. 25, 27; 
 Allen V. Atkinson, 21 Mich. 351, 360, 
 361; Young V. Rathbone, 16 N.J. Eq. 
 (i C. E. Green) 224; Hall v. Partridge, 
 loHow.Pr. (N.Y.) 188; Fryer «/. Rocke- 
 feller, 63 N.Y. 268; Riggs V. Pursell, 66 
 N.Y. 193; Seymour v. Delancey, i Hop- 
 kins (N.Y.) 436; Winne z/. Reynolds, 6 
 Paige (N.Y.) 407; Post v. Leet, 8 Paige 
 (N.Y.) 337; Sebring v. Mersereau, 9 
 Cow. (N.Y.) 344; Brown v. Hafif, 5 
 Paige (N.Y.) 235; Morris v. Mowatt, 2 
 id. 586; McComb v. Wright, 4 Johns. 
 Ch. (N.Y.) 659; McDermot w. Mc- 
 Dermot, 3 Abbott Pr. N.S. (N.Y.) 
 451; Rigney v. Coles, 6 Bosw. (N.Y.) 
 
 479; Smith V. Brittain, 3 Ired. Eq. (Nor. 
 Car.) 347; Bryan v. Reed, I Dev. & Bat. 
 Eq. (Nor. Gar.) 78,86; Mayers'. Adrian, 
 77 Nor. Car. 83; Kostenbader v. Spotts, 
 80 Penn. St. 430; Swayne v, Lyon, 67 
 Penn. St. 436; Freetly v. Barnhart, 51 
 Penn. St. 279; Swain v. Fidelity Ins. 
 Co. 54 Penn. St. 455; Speakman v. 
 Forepaugh, 44 Penn. St. 363; Gans 
 V. Renshaw, 2 Penn. St. 34; Ludwick 
 V. Huntzinger, 5 Watts & S. (Penn.) 
 51; Colwell V. Hamilton, 10 Watts 
 (Penn.) 413; Prothro v. Smith, 6 
 Rich. Eq. (So. Gar.) 324; Monaghan v. 
 Small, 6 So. Car. 177; Butler v. O'Hear, 
 
 I Desaus. (So. Gar.) 282; Brown v. 
 Gilliland, 3 id. 539; Reed v. Noe, 9 
 Yerger (Tenn.) 283; Littlefield w. Tins- 
 ley, 26 Texas, 353; Beal o. Seiveley, 
 8 Leigh (Va.) 658; Griffin v. Gunning- 
 ham, 19 Grattan (Va.) 571 ; Garnett v. 
 Macon, 6 Call (Va.) 308; Linkous v. 
 Cooper, 2 W. Va. 67. But in Graham 
 V. Bleakie, 2 Daly (N.Y.) 55, the pur- 
 chaser at a foreclosure sale was refused 
 relief for a defect in the mortgagor's 
 title which was known to the purchaser 
 at the time of the sale. So where the 
 purchaser was aware of the existence 
 of a lien upon the land which he bought, 
 but hoped that the debtor would be able 
 to discharge it : Mountcastle v. Moore, 
 
 II Heisk. (Tenn.) 481. Though a 
 purchaser at a sale under the decree of 
 a court of equity may be relieved from 
 his contract on the discovery of a defect 
 in the title by asking for a rescission 
 of the sale, yet he will not be allowed 
 to hold on to his purchase and to insist 
 on having his title perfected by the 
 application of the proceeds of the sale 
 for that purpose : Duvall u. Speed, i 
 Md. Ch. Dec. 229.] 
 
 99 
 
*85 CONDITIONS OF SALE. [PART I. 
 
 then, if necessary, he will proceed to frame such conditions 
 of sale as will properly protect his own interests without un- 
 duly alarming purchasers (/). 
 
 "When Common Conditions Sufficient. — If the title is known 
 to be a good one, and there is nothing particularly complex 
 about it, or if there are only such imperfections in the title, 
 or difficulties in proving it, as the vendor thinks preferable 
 to remove at his own expense, the conditions of sale may be 
 short and simple. In these cases little more is necessary 
 than to provide for the manner in which the biddings are to 
 be conducted, the time when the purchase is to be completed, 
 and the remedy of the vendor for a breach of the conditions. 
 
 Special Conditions, when Necessary. — But when, as fre- 
 quently happens, the title is either intricate or insecure, it 
 will probably be expedient to introduce special provisions 
 adapted to the exigencies of the case.^ 
 
 (/) See 2 Law Review, 8i. The ciency of his title and upon the expe- 
 
 vendor should have a perfect abstract of diency of delivering a corresponding 
 
 his title prepared and carefully examined abstract, or of omitting any, and what, 
 
 with the deeds in his possession, in which part, and also upon the necessity of 
 
 abstract all the facts — such as mar- providing in the particulars and condi- 
 
 riages, births and deaths — connected tions of sale against the production or 
 
 with his estate should be faithfully proof of any document or other fact, so 
 
 stated; and he should be well assured as to compel any purchaser to accept a 
 
 of his ability to produce all documents conveyance without the same ; and he 
 
 and verify all facts so stated ; and he is recommended to prepare such an 
 
 should then obtain the opinion of an abstract before advertising his particu- 
 
 experienced conveyancer upon the suffi- lars of sale: I Chit. Prac. 295. 
 
 [' The conditions of a sale to be made under a decree of a court of equity may 
 be and commonly are prescribed by the court : King v. Piatt, 37 N.Y. 155; Collier 
 V. Whipple, 13 Wend. (N.Y.) 229, 230; Reynolds v. Wilson, 15 Ills. 394; Gould 
 V. Garrison, 48 Ills. 258 j Wheatley v. Tutt, 4 Kansas, 195 ; Talley v. Starke, 6 
 Gratt. (Va.) 339. These conditions must be conformed to by the person con- 
 ducting the sale : Williamson v. Berry, 8 Howard, 495, 544; Minnesota Co. v. St. 
 Paul Co., 2 Wallace, 609; Welch v. Louis, 31 Ills. 446; Langsdale v. Mills, 32 
 Ind. 281. Thus, if the sale is made at a different place from that ordered by the 
 court, it will be invalid, and cannot be enforced either for or against the pur- 
 chaser: Bethel v. Bethel, 6 Bush (Ky.) 65, 69; Talley v. Starke, 6 Gratt. (Va.) 
 339. Conditions not fixed by the decree are to be governed by the sound discre- 
 tion of the person conducting the sale: Wright v. Yetts, 30 Ind. 185, 188; Blos- 
 som V. Railroad Co., 3 Wallace, 196, 208; National Bank of Metropolis v. Sprague, 
 20 N.J. Eq. 159, 165, 166. He may, in his discretion, follow the desires of the 
 debtor, so far as can be done without injuring the sale : Stead v. Course, 4 Cranch, 
 403 ; Meeker v. Evans, 25 Ills. 322; Laughlin v. Schuyler, I Nebraska, 409 ; Run- 
 yon V. Newark India Rubber Co., 28 N.J. Law (4 Zab.) 467, 473; Penn. v. Craig, 
 
 100 
 
CHAP, v.] 
 
 CONDITIONS OF SALE. 
 
 86* 
 
 Special conditions of sale should always be drawn with 
 great care, and strictly with reference to the particular cir- 
 cumstances of the property to be sold. No branch of the 
 art of conveyancing calls for greater circumspection. Every 
 point must be embraced whiclj by any probability may after- 
 wards arise ; and as much discretion must be used in omitting 
 unnecessary stipulations as in inserting proper ones. 
 
 [86] Trustees, &c. — The use of depreciatory conditions {i.e. 
 conditions calculated to damp the sale) by persons in a fidi- 
 ciary capacity may not only involve the vendors in personal 
 liability to their cestuis que trust, but may also constitute an 
 objection to the title {g). 
 
 (g) Hobson V. Bell, 2 Beav. 17; 
 Rede v. Oakes, 4 De G.J. & Sm. 505'; 
 Ord V. Noel, 5 Madd. 438; Dance v. 
 Goldingham, L.R. 8 Ch. 902; 42 L.J. 
 Ch. 777; I Dav. 507. The act 44 & 45 
 Vict. c. 41, a. 35, now, however, pro- 
 vides that trustees in whom a trust for 
 sale or power of sale is vested may, 
 subject to the terms of the instrument 
 creating the trust or power, sell " sub- 
 ject to any such conditions respecting 
 title, or evidence of title, or other mat- 
 ter," as they think fit : cf. 37 & 38 Vict. 
 >-. 78, s. 3; and 23 & 24 Vict. c. 145, ss. 
 I, 2, 32. [It is a strong argument against 
 a trustee's sale that a higher price might 
 have been obtained by a different mode 
 of conducting the sale : Ashurst v. Ash- 
 urst, 13 Ala. 781; Hintze v. Stingel, i 
 Md. Ch. Dec. 283; Johnson v. Dorsey, 
 7 Gill (Md.) 269; Hunt v. Bass, 2 Dev. 
 Eq. (Nor. Car.) 292; Minuse v. Cox, 
 5 Johns. Ch. (N.Y.) 441 ; Goodale 1/. 
 Wheeler, 1 1 N.H. 424. If the trustees 
 have done anything tending to prevent 
 competition or to cause a sacrifice of the 
 property, their sale may be set aside at 
 the instance of any beneficiary injured 
 thereby: Goodwin v. Mix, 38 Ills. 115; 
 
 Quarles v. Lacey, 4 Munf. (Va.) 251. 
 A trustee who from improper motives 
 procures an advantageous sale of the 
 trust property to be set aside upon 
 merely technical grounds, and resells it 
 at a loss, will be held to make up such 
 loss : Mountcastle v. Mills, 1 1 Heisk. 
 (Tenn.) 267. The trustees under a deed 
 of trust given to secure a debt, or mort- 
 gagees selling under a power in the mort- 
 gage, are under the same duty to adopt all 
 reasonable modes of proceeding in order 
 to render the sale most beneficial to the 
 parties interested : Horsey v. Hough, 38 
 Md. 130; Meacham v. Steele, 93 Ills. 
 135; Stoffel V. Schroeder, 62 Mo. 147; 
 Chesley v. Chesley, 49 Mo. 540 ; Huck- 
 ins V. AUston, 4 Ired. Eq. (Nor. Car.) 
 137; Terry v. Fitzgerald, 32 Gratt. (Va.) 
 843. The same rules will be applied to 
 a sale by a sheriff, or any person en- 
 trusted by law with the power to sell 
 projjerty for the payment of debts : 
 Cowgill V. Gaboon, 3 Harr. (Del.) 23; 
 West z/. Cooper, 19 Ind. i; Dougherty 
 z/. Linthicum, 8 Dana (Ky.) 194; Cow- 
 en V. Underwood, i6 Ills. 22; Winters 
 V. Burford, 6 Coldw. (Tenn.) 328; 
 Aldrich v. Wilcox, 10 R.I. 405 ; McGown 
 
 2 N.J. Eq. (i Green) 495; American Ins. Co. v. Oakley, 9 Paige (N.Y.) 259; 
 Mohawk Bank v. Atwater, 2 id. 54; Woods v. Monell, i Johns. Ch. (N.Y.) 502; 
 Rowley v. Brown, 1 Binney (Penn.) 61. In Cowgill v. Cahoon, 3 Harr. (Del.) 
 23, a. sheriff's sale of land was set aside because it was made at an improper 
 place, and the property thereby sacrificed, although the sheriff had a discretion as 
 to the place of sale.] 
 
 lOl 
 
*86 
 
 CONDITIONS OF SALE. 
 
 [part I. 
 
 In the drawing of conditions the following rules must be 
 observed : — 
 
 1 . Conditions should be Clearly Expressed. — The language 
 of restrictive conditions should be perfectly clear (h). The 
 vendor of real estate may oblige the purchaser to take a title 
 which is absolutely defective {i) ; and the buyer of goods may 
 be bound by a contract to take them with all their faults (/) ; 
 but in such cases the intention of the parties must be ex- 
 pressed in no ambiguous terms. ' 
 
 2. They must not be Misleading. — The language of the COn- 
 
 V. Sandford, 9 Paige (N.Y.) 290; Mc- 
 Donald V. Neilson, 2 Cow. (N.Y.) 139; 
 Skinner v. Warren, 81 Nor. Car. 373. 
 And it has been said tiiat unwarranted 
 terms and conditions imposed at such a 
 sale may be disregarded, and the pur- 
 chaser relieved therefrom : Shepherd v. 
 Burkhalter, 13 Ga. 443; Howell v. 
 Schenck, 24 N.J. Law (4 Zab.) 89; 
 
 any incumbrances, and the sale was 
 to be made clear of incumbrances; 
 and the sale was confirmed, and the 
 mortgage charged upon that half of 
 the proceeds which represented the 
 share on which it was a lien : Steen 
 V. Clayton, supra. It will be seen 
 that this case is not open to the crit- 
 icism of having given to the pur- 
 
 Stevenson V. Black, I N.J. Eq. (Saxton) chaser more than was bought or paid 
 338; Randolph's Appeal, 5 Penn. St. for.] 
 
 242. But quare, where the effect of 
 this course would be to give the pur- 
 chaser more or less than was bid for. 
 See Randall v. Swann, 10 Gill & J. 
 (Md.) 313; Hotchkiss v. Clifton Air 
 
 (Ji) Osborne v. Harvey, 7 Jur. 229; 
 Brownlie v. Campbell, 5 App. Cas. 925. 
 
 if) Freme v. Wright, 4 Madd. 364; 
 Hume V. Pocock, L.R. I Ch. 379 ; 35 
 L.J. Ch. 731; cf. Wilmot v. Wilkinson, 
 
 Cure, 2 Abbott App. Dec. (N.Y.) 406. 6 B. & C. 506; 9 D. & R. 620; Hanks 
 
 In Steen v. Clayton, 32 N.J. Eq. 121, 
 after one of two tenants in common had 
 mortgaged his share of the estate, a sale 
 of the land was decreed under partition 
 proceedings. At the sale under this 
 decree public notice of the mortgage 
 was gi\'en, whereupon the master di- 
 rected the auctioneer to sell subject to 
 all prior legal incumbrances. The other 
 co-tenant purchased the premises at 
 their full value, under the belief that 
 the mortgage would be paid out of her 
 co-tenant's share of the proceeds. Held, 
 that the master's notice was unneces- 
 sary, since the decree ordered the prop- 
 erty to be sold without mentioning 
 
 V. Pulling, 25 L.J.Q.B. 375. [Chambers 
 V. Tulane, 9 N.J. Eq. (l Stockt.) 146; 
 Brown v. Half, 5 Paige (N.Y.) 235. 
 As where a trustee appointed to make 
 a sale under a decree declared at the 
 sale that he sold only the interest of the 
 parties to the decree, and that if they 
 had no right he sold none : Brown ZK 
 Wallace, 4 Gill & J. (Md.) 479.] 
 
 (y) Cf. ante, pp. 59, 60. [McLean 
 V. Green, 2 McMull. (So. Car.) 17.] 
 Such a condition is very commonly 
 introduced into contracts for the sale of 
 ships : Maclachl. 13; cf. Shepherd v. 
 Kain, 5 B. & Aid. 240; and Taylor v. 
 BuUen, 5 Ex. 779; 20 L.J. Ex. 21. 
 
 [' If the conditions provide that the purchaser shall have time to examine the 
 title and that warranty deeds shall be given upon payment of the price, the ven- 
 dor is bound to make a good title to the purchaser : Packard v. Usher, 7 Gray 
 (Mass.) 529; Mead v. Fox, 6 Cush. (Mass.) 199; Judson v. Wass, n Johns. 
 (N.Y.) 525.] 
 
 102 
 
CHAP, v.] CONDITIONS OF SALE. 8/* 
 
 ditions must not be misleading {k). If, not confining himself 
 to mere encomium, the vendor attributes to his property 
 direct advantages which it does not possess, the purchaser 
 will be discharged from his contract (/) ; or if a vendor holds 
 out his property as free from inconveniences or incumbrances 
 to which it is [87] in fact subject, the Court will not decree 
 him specific performance {m). A condition of sale is bad, as 
 misleading, if it states that the state of the title is not accu- 
 rately known, when, in fact, it is well known to the ven- 
 dor ; or if it requires the purchaser to assume what the ven- 
 dor knows to be false («). 
 
 3. As to General Clauses. — Sweeping general clauses in 
 the conditions cannot be relied upon to cure the omission 
 from the particulars or conditions of anything which ought 
 to have been stated there {0). "A vendor," says Mr. David- 
 son, "will usually find it more politic, as it certainly i^more 
 honest, to state plainly in the conditions any defect of which 
 he may be aware in his title, and to stipulate that it shall not 
 be made an objection, than to endeavour to disarm suspicion 
 by the concise simplicity of a general condition, throwing on 
 the purchaser the risk, as well as the expense, of removing 
 the defect, should he discover it (/)." 
 
 Restrictive Conditions Construed against Vendor. — When a 
 vendor, taking advantage of his position as the framer of his own 
 conditions of sale, introduces stipulations the object of which 
 
 {k") Else V. Else, L.R. 13 Eq. 196; [But the vendor cannot complain of any 
 
 41 L.J. Ch. 213; Blenkhorn v. Penrose, ambiguity in his terms of sale : Gauche 
 
 29 W.R. 237. [A bid made at a trus- v. Trautman, 7 La. Ann. 610; nor can 
 
 tee's sale under a misapprehension of he set up that the conditions which he 
 
 the terms of payment may, by consent has prescribed are illegal and not bind- 
 
 of the trustee, be retracted without' in- ing upon him : Andrews n. Keith, 34 
 
 validating the sale, even though the sale Ala. 722. So it has been held that a 
 
 should finally be made for a lower bid : plaintiff who was present at a sheriff's 
 
 Waterman v. Spaulding, 51 Ills. 425.] sale upon his own execution and did 
 
 (/) Lachlan u. Reynolds, Kay, 52. not object to the publicly announced 
 
 [Laight V. Pell, I Edwards Ch. (N.Y.) terms of sale cannot afterwards com- 
 
 577; Gordon v. Sims, 2 McCord Ch. plain of the sheriff for having announced 
 
 (So. Car.) 159.] improper terms: Bottoms v. Mithvin, 
 
 {m) Drysdale v. Mace, -^ Sm. & G. 26 Ga. 481.] 
 225. [Ward V. Wiman, 17 Wend. (d) Edwards v. Wickwar, L.R. i 
 
 (N.Y.) 193.] Eq. 68. 
 
 (») In re Banister, 12 Ch. D. 131. (/) i Dav. 510; cf. Dart, 176. 
 
 103 
 
*88 CONDITIONS OF SALE. [PART I. 
 
 is to exclude the purchaser from his common right and impose 
 an estate upon him devoid of that which is essential to its en- 
 joyment, the courts always construe such stipulations strictly 
 in favour of the purchaser/ and take every opportunity of dis- 
 couraging them and remitting the purchaser to his ordinary 
 rights as derived from an unconditional contract {q). On the 
 other hand, the purchaser will not be allowed to take undue 
 advantage of the omission of special conditions ; and even a 
 stipulation that the vendor [88] will give such title as shall 
 be satisfactory to the purchaser has been held not to justify 
 the purchaser in making other than usual objections to 
 title (;-). 
 
 In general, it may be said that conditions of sale are sub- 
 ject to the rules and principles, so far as applicable, by which 
 particulars are governed {s). 
 
 Coiiditions usually Printed and Circulated before Sale. — The 
 conditions are usually printed together with the particulars 
 or catalogue {(). They should, as far as practicable, be cir- 
 culated some time previously to the sale, so as to give every 
 one an opportunity of ascertaining the terms on which the 
 property is sold {u). The system of having printed common 
 
 (jf) Southby V. Hutt, 2 My. & Cr. of the vendor or of the auctioneer, the 
 
 207; Symons z/. James, i Y. & C.C.C. flour being outside of the auction-room, 
 
 487,490; 6 Jur. 452; Morley z/. Cook, it was held in Harvey v. Harris, 112 
 
 2 Hare, io6, 115; Beioley v. Carter, Mass. 32, that the minds of the parties 
 
 L.R. 4 Ch. 230; 38 L.J. Ch. 283; 20 had not met so as to make a sale.] 
 
 L.T.N.S. 381. [Osborne v. Harvey, 7 (J) See aiih-, p. 47. It is advisable 
 
 Jur. 229; Nash v. BrowTie, 9 Jur. N.S. that the conditions of sale should be 
 
 431; Morrisz/.Kearsley,2yo.&Co.I39.] actually annexed to the particulars or 
 
 (r) Lord z'. Stephen, i V. &C. 222; catalogue, or be clearly referred to in 
 
 cf Lewis V. Lechraere, 10 Mod. 502. them, otherwise it will be difficult to 
 
 (j) See Chap. IV., ante, passim, connect them so as to charge the pur- 
 
 [Where flour was sold by auction, part chaser: Morton, V. & P. 154. 
 
 as slightly and part as considerably {u) See Torrance v. Bolton, L.R. 
 
 damaged, and the highest bidder for the i4Eq. 124; 41 L.J. Ch. 643; aff L.R. 
 
 latter class selected as the flour he 8 Ch. 118; 42 L.J. Ch. 177; where 
 
 would take two rows of barrels of the Malins, V. -C, strongly reprobated the 
 
 former class which had been acciden- practice of advertising properties to be 
 
 tally misplaced without the knowledge sold under conditions to be produced 
 
 [' Unless otherwise expressly stated, the interest offered for sale will be pre- 
 sumed to be accompanied by all the advantages legally and usually incidental to 
 it: Skull z/. Glenister, 16 C.B., N.S., 8i; Pope v. Garland, 4 Yo. & Co. 403; 
 Whittington v. Corder, 16 Jur. 1034; Stanton v. Tattershall, i Sm. & G. 529.] 
 
 104 
 
CHAP. V.J CONDITIONS OF SALE. 89* 
 
 form conditions which are used on every sale, and to which 
 are prefixed the special conditions under which the particular 
 property is sold, is recommended by Mr. Dart, as at once 
 directing the attention of the purchaser and his solicitor to 
 the special restrictive conditions (v). 
 
 The auctioneer sometimes reads out the conditions imme- 
 diately before putting up the property for sale ; but more 
 commonly, where they have been circulated beforehand, he 
 merely proposes that they be taken as read.^ A purchaser 
 will not be bbund by conditions of which he had not either 
 actual or constructive notice (ui). 
 
 Where usual Conditions of Sale-room Announced as such. — • 
 On sales of furniture &c. it is not unusual to paste up the 
 conditions in the auction-room ; and where such is the [89] 
 custom, and the auctioneer announces that the conditions of 
 sale are as usual, they may bind the purchaser, whether he 
 sees them or not (r). But see post, Chapter VIII. 
 
 at the auction. [The furnishing of repository where the rules are painted 
 printed catalogues is not essential, even on a board affixed to the wall ; Bywater 
 in a judicial sale of the furniture of a v. Richardson, i A. & E. 508; 3 N. & 
 hotel : National Bank of Metropolis v. M. 748. Cf. Cowley v. Watts, 22 L.J. 
 Sprague, 20 N.J. Eq. 159. An ad- Ch. 591 ; 17 Jur. 172. In a Scotch 
 ministrator's public sale of land is not case (Laing v. Hain, 2 S.M. & P. 396) 
 vitiated by the fact that his published . an opinion was expressed that a pur- 
 notice thereof did not state the terms chaser at a public auction could not be 
 of the proposed sale : Brubaker v. allowed to plead that he was ignorant 
 Jones, 23 Kansas, 411.] of the articles and conditions of sale. 
 (v) See Dart, 124. ["In Bywater v. Richardson, supra, 
 (w) Freme z'. Wright, 4 Madd. 364; there was a warranty of soundness; but 
 cf. Dart, 175. [Where the advertise- the purchase was made at the reposi- 
 ment of a public sale of land stated that tory, where there was a rule printed on 
 the terms would be given at the time a board fixed to the wall that a warranty 
 of sale, it was held that a public decla- of soundness, when given there, was to 
 ration at the time of the sale that the remain in force only until twelve o'clock 
 quantity was liable to be reduced by an at noon on the next day after the sale, 
 adverse claim, in which case a deduc- and the court held, on proof of the 
 tion would be made from the price, was buyer's knowledge of the rules, that the 
 sufficient notice of such claim to the warranty was limited, and it was the 
 purchaser : Wainwright v. Read, I same as if the seller had told him that 
 Desaus. (So. Car.) 573.] he would warrant the horse against such 
 (jr) Mesnard v. Aldridge, 3 Esp. defects only as might be pointed out 
 271; and the same rule is applicable to within twenty-fo'ur hours." — Benjamin 
 a sale by private contract in a public on Sales, § 622,] 
 
 [' The terms announced at a judicial sale are binding upon the purchaser : 
 Trichel v. Myers, 18 La. Ann. 567; Backer v. Hamilton, id. 553; Shields v. 
 Harrison, 77 Nor. Car. 115.] 
 
 105 
 
*89 CONDITIONS OF SALE. [PART I. 
 
 Conditions, how Embodied in the Contract. — The conditions 
 are embodied, with the particulars, in the formal contract (j/). 
 It seems that the signature of the purchaser, by himself or 
 his agent, on the back of the particulars and conditions of 
 sale, with the sum opposite to it, is a sufficient compliance 
 with the requirements of the Statute of Frauds, where the 
 paper on which the indorsement is made contains the name, 
 or a sufficient description, of the seller {z). But the usual 
 and correct mode of concluding an auction sale is for the 
 vendor, or the auctioneer, as his agent, and the 'purchaser, or 
 his agent, to sign a proper memorandum of purchase, annexed 
 •to the particulars and conditions {a). 
 
 Alterations in Conditions. — As the written conditions can- 
 not, in general, be varied, or even explained, by the verbal 
 declarations of the auctioneer at the time of sale {b), any 
 alteration in them should be made in writing before the sign- 
 ing of the contract (c). 
 
 For precedents and forms of conditions of sale, see post, 
 pp. 306-342. 
 
 (jc) See ante, p. 47. of the written terms. Held, that he 
 (i) Sugd. 144. had a right, as agent for the hirer, to 
 (a) See post. Chapter VI. ; and make sucli alterations : Satterfield v. 
 forms, pp. 342, 344. Smith, 11 Ired. Law (Nor. Car.) 60. If 
 (^b) Goss V. Lord Nugent, 5 B. & Ad. the advertised terms of an administra- 
 58; 2 N. & M. 28; see also Parteriche tor's sale are varied by an announce- 
 V. Powlet, 2 Atk. 383; and cf. aii/e,pp. ment made by the administrator at the 
 45, 46. [Wright V. Deklyne, Peters sale, and the purchaser fails to comply 
 C.C. 199 ; McLellan v. Cumberland with his bid, the vendor, in an action to 
 Bank, 24 Maine, 566; Rankin v. Mat- hold the purchaser for the loss upon a 
 thews, 7 Ired. Law (Nor. Car.) 286 ; resale must show clearly that the pur- 
 Grantland v. Wright, 2 Munf. (Va.) chaser knew of the alteration in the 
 179.] As to a previous arrangement terms before he bid off the property: 
 overriding the conditions of sale, see Daniel v. Jackson, 53 Ga. 87.] 
 Bartlett v. Purnell, 4 A. & E. 792; 6 (c) See also the observations on pp. 
 N. & M. 299; 2 H. & W. 19; cf. an/e, 55-6, an/e ; and Dart, 112. [Granite 
 p. 23; Page V. Cowasjee Eduljee, L.R. R.R. Co. v. Bacon, 15 Pick. (Mass.) 
 I P.C. 127. [At a hiring of slaves by 239; Pankrey v. Michell, i Breese 
 auction, the auctioneer read ^ written (Ills.) 302; Oakey v. Wilcox, 3 How- 
 statement of the terms of hiring, and ard (Miss.) 330; Haines c Dennett, 
 also declared in a loud voice other 11 N.H. 180.] 
 terms, which amounted to an alteration 
 
 106 
 
CHAP. V.J CONDITIONS OF SALE. 9O-9I* 
 
 [90] II. — Remarks upon the Different Classes of Conditions 
 
 of Sale. 
 
 Conditions of sale may be divided into the following 
 classes : i. conditions relating to the actual sale : biddings, 
 payment of a deposit and signing of a contract ; 2. conditions 
 relating to the quantum of interest sold ; 3. conditions relat- 
 ing to the title to the property ; 4. conditions relating to 
 completion of the purchase ; 5. conditions relating to misde- 
 scriptions in the particulars ; and 6. conditions relating to 
 forfeiture of the deposit and a resale of the property. 
 
 I. Conditions relating to the Actual Sale: Biddings, Payment 
 of Deposit, and Signing of Contract. — The biddings are gen- 
 erally regulated by conditions providing that the highest 
 bidder shall be the purchaser, that no person shall advance 
 less than a given sum at one time.^ that no bidding shall be 
 retracted {d), and that, in case of dispute respecting a bid- 
 ding, the property shall be put up again. If the vendor is to 
 bid, either himself or by an agent, the right must be ex- 
 pressly reserved ; or if the property is offered for sale subject 
 to a reserved price, the fact must be expressly stated (e). 
 Where the vendor reserved a right to bid once, and the 
 auctioneer, with his sanction, bid thrice, the sale was held 
 voidable at the option of the purchaser (_/) ; [91] and under 
 
 (rf) As to whether this condition the judgment of Grove, J., ib. [By-bid- 
 could be enforced, see ante, p. 30. See ding at an auction sale of land in lots, 
 also, for a less usual condition relating advertised to be positive, will render the 
 to the biddings, /oj/, p. 330, form I. sale voidable by a purchaser who was 
 
 {e) Cf. ante, p. 48; post. Chapter influenced by such bidding, whether 
 
 VII.; Dart, 125. If there is a reserve, that bidding was upon the lots pur- 
 
 the fact is generally stated in the condi- chased by him or upon those previously 
 
 tions; if there is no reserve, or only a offered, even though the by-bidding was 
 
 very low reserve, in the particulars. instigated by the auctioneer without the 
 
 (/) Parfitt V. Jepson, 46 LJ.C.P. seller's knowledge; but if it appears 
 
 529; 36 L.T.N.S. 251. It seems that a that the purchaser was not influenced 
 
 vendor's right to bid once would be ex- by the by-bidding he cannot avail him- 
 
 ercised by the -auctioneer starting the self of it to avoid the sale : Curtis v. 
 
 property at a price or by the vendor Aspinwall, 114 Mass. 187. See postea, 
 
 (or auctioneer) naming a reserve : see Ch. VII.] 
 
 [' If it has been made a condition of a sale by public auction that no bid less 
 than five cents shall be received by the auctioneer, i» person who bids only one 
 cent in advance of an offer by an absentee acquires no title to the article bid upon : 
 Farr v. John, 23 Iowa, 286.] 
 
 107 
 
*9I CONDITIONS OF SALE. [PART I. 
 
 conditions stating that the sale is "subject to a reserved 
 bidding," it is illegal to employ a person to bid up to the 
 reserved price, unless the right to do so is expressly stipu- 
 lated for (^). 
 
 On sales by the Court a reserved bidding for each lot is 
 fixed by the judge or his chief clerk ; a sale by auction on 
 behalf of an infant, without a reserved bidding, has been 
 strongly condemned {h). Trustees, it seems, may fix a re- 
 served bidding without being specially authorized {i). 
 
 It is usually provided that the purchaser shall, immediately 
 after the sale, pay a deposit on the purchase-money(y), and, 
 in the case of real estate, sign an agreement to complete the 
 purchase.' 
 
 The deposit is commonly made payable, in London, to the 
 auctioneer ; but in the country, upon sales of estates, to the 
 vendor's solicitor. If the deposit will be large, it may be 
 well to provide for its investment until completion. Ex- 
 chequer bills are most frequently chosen for the purpose, as 
 being subject to but slight fluctuations in value {k). 
 
 The better practice is to annex a memorandum o.f agree- 
 ment to a copy of the printed particulars and conditions (/). 
 
 2. Conditions relating to the Quantum of Interest Sold.^ — 
 If land used for agricultural purposes is in lease at the time 
 
 {g) Gilliat V. Gilliat, L.R. 9 Eq. 60; Davis, 3 Edw. Ch. (N.Y.) 338. A sale 
 
 39L.J. Ch. 142. [See Veazie K.Williams, by a mortgagee, selling in good faith 
 
 3 Story C.C. 611; Phippen v. Stickney, under a power in his mortgage and re- 
 
 3 Met. (Mass.) 384, 387 ; Lee v. Lee, 19 quiring a usual and reasonable deposit, 
 
 Mo. 420; Tomlinson v. Savage, 6 Ired. is not invalidated by the fact that this 
 
 Eq. (Nor. Car.) 430; Steele v. EUmaker, requirement prevented a person present 
 
 II Serg. & R. (Penn.) 86; Reynolds v. from bidding, although the advertise- 
 
 De Chaums, 24 Texas, 1 74. Posiea, Ch. ment did not contain the terms of sale, 
 
 VIL] or state that they would be given at the 
 
 (Ji) Cutts V. Salmon, 16 Jur. 623. sale: Pope v. Burrage, 115 Mass. 282.] 
 
 (z) Dart, 79. {li) I Dav. 522. 
 
 (/) As to the deposit generally, see (/) See post, p. 128, and forms, pp. 
 
 Chapter IX., post. [See Hewlett v. 293, 342. 
 
 [' If the conditions of a sale are that it is to be made for cash, this does not 
 necessarily mean coin at the falling of the hammer, but ready money in contra- 
 distinction to credit: Jacobs u. Turpin, 83 Ills. 424; Meng v. Houser, 13 Rich. 
 -Eq. (So. Car.) 2IO.] 
 
 ['•' Three tenants in common of land agreed to put up a portion of it for sale to 
 the highest bidder among themselves. The sale having been made accordingly, 
 it was held that the amount bid must be considered to have been offered for the 
 
 108 
 
CHAP, v.] CONDITIONS OF SALE. 92* 
 
 when it is sold, the sale, unless provision be made to the con- 
 trary, will be subject to the rights of the tenants with respect 
 to growing crops, • seed, manure, tillage and, [92] generally, 
 such things as, according to local custom, are matters for allow- 
 ance between outgoing and incoming tenant ; if it is in hand, 
 and nothing is said as to these items, the crops will belong to 
 the purchaser from the day fixed for completion, and he will 
 not be obliged to allow the vendor anything for seed &c. (;«). 
 The vendor will often find it desirable to employ a condition 
 restricting the purchaser's rights in these respects (ii). 
 
 Timber passes, without express mention, with the land on 
 which it stands ;^ if the purchaser is to pay for it separately, 
 the conditions must say so (S). A lessee, it may be observed, 
 is seldom entitled to the timber or trees on his tenement ; 
 but the underwood frequently belongs to him (/). 
 
 Fixtures {q) would probably be held to be included in a 
 contract for the sale of the land to which they are affixed {/), 
 
 {iti) Dart, 132. [Accordingly the Keane, 9 Hare, 469. Cf. ante, p. 41. 
 
 purchaser at an auction sale in foreclo- As to what is timber, see ante, p. 66; 
 
 sure of a mortgage will be entitled to cf. Chandos (Duke of) v. Talbot, 2 
 
 the growing crops in preference to the P.W. 601 ; Aubrey v. Fisher, 10 East, 
 
 mortgagor and those claiming under 446; and Lord Fitzhardinge i/. Pritchett, 
 
 him : Ruggles v. Centerville Bank, 43 L.R. 2 Q.B. 135, as to saleable under- 
 
 Mich. 192; Gillett v. Balcom, 6 Barb, woods. 
 (N.Y.) 370; Parker v. Storts, 15 Ohio (/) i Dav. 522. 
 
 ^t. 351. And the sheriff in making a (y) As to what are fixtures, see 
 
 foreclosure sale has no authority to re- Woodf. 594 ; cf. Ex parte Quincey, i 
 
 serve the way-going crops: Howell v. Atk. 478; Lawton v. Lawton, 3 Atk. 
 
 Schenck, 24 N.J. Law (4 Zab.) 89.] 16, note, [i Sugden on Vendors and 
 
 («) Barns, stackyards, &c., are fre- Purchasers, loth Am. Ed., 33, and 
 
 quently reserved for the vendor's use note a.] 
 
 until the following spring, for the pur- (r) See Colegrave v. Dias Santos, 2 
 
 pose of threshing corn, &c. B. & C. 76; 3D. & R. 255; Ex parte 
 
 (0) Higginson v. Clowes, 15 Ves. Lloyd, i Mont. & Ayr. 494; Longstaff 
 
 516. As to copyholds, see Cross v. v. Meagoe, :i A. & E. 167; 4 N. & M. 
 
 interest of the bidder's co-tenants in the land, and not for the value of the land in 
 which he was himself to share : Dickerson v. Collins, Cam, & N. (Nor. Car.) 441.] 
 
 [' A sale of mortgaged lands under a decree of foreclosure will not pass to the 
 purchaser the emblements of the lessee: Cassilly v. Rhodes, 12 Ohio, 88.] 
 
 [^ Since the conditions of a judicial sale are fixed by the terms of the decree 
 under which it is made and by the proceedings preliminary to the sale had there- 
 under, if these necessarily exclude from the sale timber, coal, or other parts of the 
 property, such parts will not pass to the purchaser, though no express stipulation 
 with reference thereto has been made at the sale: Bradford v. McConihay, 15 
 W. Va. 732.] 
 
 109 
 
*93 CONDITIONS OF SALE. [PART I. 
 
 unless a contrary intention could be collected from the in- 
 strument (s). They should, therefore, be made the subject 
 of an express condition, if the purchaser is to pay for them 
 in addition to the amount of purchase-money bid by him at 
 the sale. On a sale of leaseholds the conditions should 
 specify that only tenant's (or house) fixtures will be [93] 
 sold, and should provide a means of determining what are 
 and what are not to be such fixtures (t). 
 
 It is ordinarily stipulated that the amount to be paid for 
 crops, timber and fixtures shall be settled by valuation, and 
 that the sum so ascertained shall bear interest as from the 
 time fixed for completion. When the valuation is to be made 
 in a specified manner, it is a condition precedent, and, if it 
 fails, the purchaser cannot be compelled to submit to a valua- 
 tion by the Court, or to any other terms ;i but the case of an 
 agreement to sell "at a fair valuation" is essentially differ- 
 ent : in that case, no particular means of ascertaining the 
 value is pointed out, and there is nothing, therefore, to pre- 
 clude the Court from adopting any means adapted to the pur- 
 pose («). 
 
 A condition is commonly inserted that the property shall 
 be taken subject to all rents and rights of way and water, 
 
 21 1 ; Hitchman i-. Walton, 4 M. & W. (s) Hare v. Horton, 5 B. & Ad. 
 
 409; :H.&H.374; £x fiarie Jientley, 715; 2 N. & M. 428. [Manning v. 
 
 2 Mont. D. & De G. 591; £x parte Bailey, 2 Exch. 45. And see Birch v. 
 
 Cotton, ib. 725 ; of. Vale of Neath Col- Dawson, 2 Ad. & El. 37 ; Cotton v. Scud- 
 
 liery Co. v. Furness, 45 L.J. Ch. 276. amore, i K. & J. 321.] 
 [Blethen ji. Towie, 40 Maine, 310; Pul- (/) Cf. i Dav. 522. 
 
 len i^. Bell, id. 314; Farrar z'. Stackpole, {u) Leake, 11 35; see also Cumber- 
 
 6 Greenl. (Me.) 154; Weston v. Wes- land t/. (Bowes or) Glamis, 15C.B. 348; 
 
 ton, 102 Mass. 514; Bainway w. Cobb, 3 C.L.R. 149; 24 L.J.C.P.,46; I Jur. 
 
 99 Mass. 457; Bliss w. Whitney, 9 Allen N.S. 236; Vickers w. Vickers, L.R. 4 
 
 (Mass.) 114; Tuttle v. Robinson, 33 Eq. 429; 36 L.J. Ch. 946; Dinham v. 
 
 N.fL 104; State z'. EUiott, 11 N.H. 540; Bradford, L.R. 5 Ch. 519; Richardson 
 
 Goodrich v. Jones, 2 Hill (N.V.) '142; v. Smith, L.R. 5 Ch. 648; 39 L.J. Ch. 
 
 Miller v. Plumb, 6 Cow. (N.Y.) 665 ; 877 ; Smith v. Peters, L.R. 20 Eq. 
 
 Walker v. Sherman, 20 Wend. (N.Y.) 510; 44 L.J. Ch. 613. [Jackson v. 
 
 636; Wilkins v. Vashbinder, 7 Watts Jackson, i Sm. & G. 184; Paris Choco- 
 
 (Penn.) 378; Burnside v. Weightman, late Co. -u. Crystal Palace Co., 3 Sm. & 
 
 9 Watts (Penn.) 46; s.c, 2 Watts & S. G. 119.] 
 (Penn.) 268.] 
 
 [' See accordingly Nutting v. Dickinson, 8 Allen (Mass.) 540; Brown v. 
 Bellows, 4 Pick. (Mass.) 179; Underbill v. Van Cortland, 2 Johns. Ch. (N.Y.) 
 
 339-] 
 
 no 
 
CHAP, v.] CONDITIONS OF SALE. 94* 
 
 and other easements, if any, charged or subsisting upon it ; 
 but such a condition does not relieve the vendor of his obli- 
 gation to disclose such liabilities, where known to exist {v). 
 
 The conditions should state in what manner it is proposed 
 to deal with any incumbrances subject to which the property 
 is sold {w). It will often be expedient to provide that the 
 purchaser shall take an indemnity {x). In such a case the 
 conditions should be explicit as to its terms. If an [94] in- 
 cumbrance is not likely to be enforced, it may be sufficient 
 to preclude the purchaser from making any objection in res- 
 pect of it.' 
 
 Where land is sold in lots subject to a rent charge, it is 
 usual to stipulate that each purchaser shall pay an amount 
 apportioned to his lot in the particulars and shall procure an 
 apportionment, if he desires one, at his own expense {y). 
 
 When the reversion of land in lease is being sold in lots, 
 or the reversion of part only of such land is being sold, the 
 consent of the tenant to an apportionment of the rent should 
 
 {v) Dart, 156; cf. Gale v. Squier, 5 (N.Y.) 244; Dutch Church v. Mott, 7 
 
 Ch. D. 625; 46 L.J. Ch. 672. Paige (N.Y.) 78; Seymour zi. Delancey, 
 
 (w) The mere fact of there being 3 Cow. (N.Y.) 445; Luckett v. Wil- 
 
 incumbrances is no objection to the hamson, 37 Mo. 388; Tyson v. Smith, 
 
 title, if the vendor can require them to 8 Texas, 147; Jones v. Taylor, 7 Texas, 
 
 be paid off: Sidebottom v. Barrington, 240 ; Reeves v. Dickey, 10 Gratt. 
 
 4 Beav. no. See now 44 & 45 Vict. c. (Va.) 138; Purcell v. McCleary, id. 
 
 41, s. 5. [If time is not of the essence 246.] 
 
 of the contract, the vendor will be al- (j-) See Bainbridge v. Kinnaird, 32 
 
 lowed a reasonable time and oppor- Beav. 346. 
 
 tunity to perfect his title: Hepburn v. (/) Dart, 130. It is not unusual, 
 Auld, 5 Cranch, 262, 275 ; Tarwater v. upon a sale in lots, for the vendor to 
 Davis, 2 English (Ark.) 153; Blann reserve power to withdraw lots, should 
 ■V. Smith, 4 Blackf. (Ind.) 517; Tyree the principal or any described lot or 
 ■V. Williams, 3 Bibb (Ky.) 365 ; Finley lots not be sold. [An annual quit-rent 
 V. Lynch, 2 id. 566; Dresel v. Jordan, of fifty-four cents or a pound of wheat 
 404 Mass. 107, 415; Barnard 7/. Lee, 97 has been disregarded in New York : 
 Mass. 92; Richmond u. Gray, 3 Allen Ten Broeck v. Livingston, i Johns. Ch. 
 (Mass.) 25; More v. Smedburgh, 8 (N.Y.) 357; Winne v. Reynolds, 6 
 Paige (N.Y.) 600; Baldwin v. Salter, Paige (N.Y.) 407. See Gans v. Ren- 
 id. 473 ; Pierce v. Nichols, i Paige shaw, 2 Penn. St. 34.] 
 
 [' At an auction sale of personal property, the auctioneer announced that it 
 was sold subject to a chattel mortgage, with the conditions of which the purchaser 
 must comply. Held, that this announcement did not impose upon <i purchaser 
 who heard and assented to it any personal obligation upon which an action could 
 be maintained against him to recover the amount due upon the mortgage : Hamill 
 V. Gillespie, 48 N.Y. 556.] 
 
 Ill 
 
*9S CONDITIONS OF SALE. [PART I. 
 
 be obtained, or the conditions should provide for such appor- 
 tionment (z). 
 
 Upon the sale of a leasehold in lots the rents and liabilities 
 under the lease will have to be apportioned. This is done, 
 sometimes by means of cross powers of distress and entry ; 
 sometimes by an assignment of the lease to the largest pur- 
 chaser in value, he granting under-leases, with mutual cove- 
 nants for indemnity, to the other purchasers (a). 
 
 3. Conditions Relating to the Title to the Property. — In the 
 absence of stipulation, a vendor of real estate is bound to de- 
 duce and verify a title extending over at least the forty years 
 preceding the day of sale ; and this obligation involves the 
 delivery to the purchaser of an abstract of title covering that 
 period, the production of all the deeds and documents stated 
 in the abstract, the identification of the property described in 
 the particulars with the property described in the several in- 
 struments of title, and the strict [95] proof of all facts and 
 matters forming a link in the chain of title, except such as 
 are stated or recited in any document twenty years old, in 
 which case the statement or recital is sufficient priind facie 
 evidence of their truth {b)} 
 
 (z) lb. 131. son, at least loo years, and in the case 
 
 («) Ibid, and 171. As to building of a reversionary interest, to its creation : 
 
 estate, see ib. 175. Dart, 293, 294; and the creation of a 
 
 {b) I Prid. I. Unless there be a long leasehold must be shewn: Frend 
 
 condition to the contrary, the abstract v. Buckley, L.R. 5 Q.B. 213. 
 
 must go back, in the case of an advow- 
 
 [' The vendor must give to the purchaser, unless the purchaser waives his 
 right, as in Goddin v. Vaughn, 14 Gratt. (Va.) 102, a good marketable title, free 
 ordinarily from a reasonable suspicion : \\'atts v. Waddle, 6 Peters, 389 ; s.c, i 
 McLean, C.C. 200; Hepburn v. Dunlop, I Wheaton, 179; Sohier f. Williams, 
 
 I Curtis C.C. 479; Myers v. Raymond, 5 Fla. 516; Kelly v. Bradford, 3 Bibb. 
 (Ky.) 317; Lewis v. Herndon, 3 Litt. (Ky.) 358; Tomlin v. McChord, 5 J.J. 
 Marsh. (Ky.) 135; Bartlett v. Blanton, 4 id. 426; Young v. Lillard, I A.K. 
 Marsh. (Ky.) 481; Beckwith -u. Klouns, 6 B.M. (Ky.) 222; Ragan v. Gaither, 
 
 II Gill. & J. (Md.) 472; Sturtevant v. Jaques, 14 Allen (Mass.) 523; Park?/. 
 Johnson, 7 id. 378, 383; Richmond v. Gray, 3 id. 25; Allen v. Atkinson, 21 Mich. 
 351; Dwight J'. Cutler, 3 Mich. 566, 575; Miller j/. Palmer, 55 Miss. 323; Youngzi. 
 Rathbone, 16 N.J. Eq. (l C. E. Green) 224; Winne v. Reynolds, 6 Paige. (N.Y.) 
 407; Seymour v. Delancey, I Hopkins (N.Y.) 436; McComb v. Wright, 4 Johns. 
 Ch. (N.Y.) 659; Disbrow z<. Folger, 5 Abbott Pr. (N.Y.) 53; Sebring t/. Mer- 
 sereau, 9 Cow. (N.Y.) 344; Kohler u. Kohler, 2 Edw. Ch. (NA*.) 69; Voorhees 
 V. De Myer, 3 Sandf. Ch. (N.Y.) 614; Rigney v. Coles, 6 Bosworth (X.V.) 479; 
 Shields v. Allen, 77 Nor. Car. 375 ; Bryan v. Reed, I Dev. & Bat. Eq. (Nor. Car.) 78, 
 
 112 
 
CHAP, v.] -CONDITIONS OF SALE. 95* 
 
 When it is inconvenient to give a forty years' title, for 
 instance, by reason of part of tlie title being wanting, a con- 
 dition will be employed providing that the abstract shall 
 commence with a deed of more recent date. Sales of small 
 properties with a thirty years' title, or even considerably less, 
 are far from uncommon. If the vendor's title is positively 
 defective, it will be desirable, either to state the defect in the 
 conditions and stipulate that no objection shall be made in 
 respect of it (c), or, sometimes, to refer the purchaser to the 
 documents of title and provide that he shall take such title 
 as they disclose, or, perhaps, to offer the property for sale 
 with only such title as the vendor may have {d). 
 
 (<r) Sellick z). Trevor, ii M. & W. (</) Smith v. Watts, 4 Drew. 338; 
 
 722; 12 LJ. Ex. 401 ; cf. Smith z/. Rob- Keyes v. Heyden, 20 L.T.O.S. 244; 
 
 inson, 13 Ch. D. 148; 49 L.J. Ch. 20; Freme z/. Wright, 4 Madd. 364; Wilmot 
 
 44 & 45 Vict. u. 41, a. 3, sub-s. 3. V. Wilkinson, 6 B. & C. 506; 9 D. & R. 
 
 86; Swayne v. Lyon, 67 Penn. St. 436; Swain v. Fidelity Ins. Co., 54 Penn. St. 
 455; Freetly v. Barnhart, 51 Penn. St. 279; .Speakman v. Forepaugh, 44 Penn. 
 St. 363; Gans v. Renshaw, 2 Penn. St. 34; Ludwick v. Huntzinger, 5 Watts & 
 S. (Penn.) 51; Colwell z-. Hamilton, 10 Watts (Penn.) 413; Prothro z^. Smith, 
 6 Rich. Eq. (So.' Car.) 324; Brown v. Gilliland, 3 Desaiis. (So. Car.) 539; 
 Reed v. Noe, 9 Yerger (Tenn.) 283 ; Mullins v. Aiken, 2 Heisk. (Tenn.) 
 535 ; Littlefield v. Tinsley, 26 Texas, 353 ; Jones v. Taylor, 7 Texas, 240; 
 Griffin v. Cunningham, 19 Gratt. (Va.) 571 ; Beale v. Seiveley, 8 Leigh (Va.) 
 658 ; Garnett v. Macon, 6 Call (Va.) 308 ; Linkous u. Cooper, 2 W. Va. 
 67. Accordingly where, after a sale under partition proceedings, it appeared 
 that the premises were in possession of an insolvent, under an adverse claim, 
 who refused to deliver possession to the purchaser, it was held that the latter 
 should not be compelled to complete his purchase, unless the parties inter- 
 ested in the sale would allow an abatement from the purchase-money of the 
 expenses of obtaining possession and of the mesne profits from the time of the 
 completion of the purchase to the time of obtaining possession: McGown v. 
 Wilkins, i Paige (N.Y.) 120. So the purchaser of property sold at a probate 
 sale is entitled to reserve in his possession enough of the purchase-money to 
 satisfy a mortgage antedating the title which he has bought; Succession of 
 Triche, 29 La. Ann. 384. See to the same point Hotchkiss v. Clifton Air Cure, 
 :i Abbott App. Dec. (N.Y.) 406. And a court of equity will release a purchaser 
 of real estate sold under a decree of court, where, ?ifter time has been allowed to 
 perfect the title, ten years have elapsed without this having been done : Myers v. 
 Raymond, 5 Fla. 516. But if the terms of sale provide that existing incumbrances 
 will be allowed to the purchaser out of his purchase-money upon his producing 
 proper vouchers therefor, then the existence of incumbrances which he might 
 thus have paid off will not justify him in refusing to fulfil his purchase : Lenihan 
 V. Hamann, 14 Abbott Pr. N.S. (N.Y.) 274. And in Louisiana it is held that a 
 vendor does not warrant against an apparent servitude; and that a purchaser who 
 buys at a public auction premises affected with such a servitude, as for instance a 
 public levee, cannot complain thereof: Lallande v. Wentz, 18 La. Ann. 289.] 
 
 113 
 
*96 
 
 CONDITIONS OF SALE. 
 
 [part I. 
 
 A condition merely debarring the purchaser from requiring 
 the production of the title anterior to a certain period does 
 not preclude him from seeking out aliunde and showing an 
 actual defect in anterior title (e). 
 
 [96] Under the Vendor and Purchaser Act, 1874 (/), a 
 recital in a conveyance more than twenty years old that the 
 vendor was seised in fee simple is sufficient evidence of the 
 fact, and no prior abstract of title can be demanded, except 
 so far as the recital is proved to be inaccurate ; and in such 
 cases a forty years' title is not required (^). 
 
 Subject to any stipulation to the contrary, where land of 
 copyhold or customary tenure has been converted into free- 
 hold by enfranchisement, there, under a contract to sell and 
 convey the freehold, the purchaser has no right to call for 
 the title to make the enfranchisement iJi) ; under a contract 
 to grant or assign a term of years, whether derived or to be 
 derived out of a freehold or leasehold estate, the intended 
 lessee or assign is not entitled to call for the title to the free- 
 hold (i) ; and under a contract to sell and assign a term of 
 
 620; Spratt V. Jeffery, lo B. & C. 249; 
 
 5 Man. & R. 18S; Hume i/. Pocock, 
 L.R. I Ch. 379; cf. Duke v. Barnett, 
 2 Coll. C.C. 337; Johnson v. Smiley, 
 17 Beav. 233. [A sale merely of the 
 interest of a person named in the real 
 estate imports no obligation to give a 
 good title : Shields v. Allen, 77 Nor. 
 Car. 375.] 
 
 (f) Shepherd v. Keatley, I CM. & 
 R. 117 ; 4 Tyrw. 571 ; Southby v. Hutt, 
 2 My. & C. 207; cf. Edwards v. McLeay, 
 2 Swans. 287; Coop. 308; Hyde v. 
 Dallaway, 4 Beav. 6o5; 6 Jur. 119; 
 Dick V. Donald, i Bli. N.S. 655 ; Sellick 
 V. Trevor, 11 M. & W. 722; 12 L.J, Ex. 
 401 ; Rhodes V. Ibbetson, 4 De G. M. 
 
 6 G. 787 ; 23 L.J. Ch. 459; Waddell v. 
 Wolfe, L.R. 9 Q.B. 515; 43 L.J.Q.B. 
 138; Jones V. Clifford, 3 Ch. D. 779; 
 45 L.J. Ch. 809; 24 W.R. 979. See 
 now 44 & 45 Vict. c. 41, s. 3, sub-s. 3. 
 
 (/) 37 & 38 Vict. c. 78, s. 2. 
 
 (^) Bolton 11. London School Board, 
 7.Ch. D. 766; 47 L.J. Ch. 461; cf. 
 Best V. Hamand, 12 Ch. D. i; 48 L.J. 
 Ch. 503. I 
 
 (JC) Conveyancing and Law of Prop- 
 erty Act, 1881 (44 & 45 Vict. c. 41), s. 
 3, sub-s. 2. The section only applies to 
 sales made after 31 December, 1881; 
 ib. sub-s. 10. 
 
 (0 37 & 38 Vict. c. 78, s. 2, rule i. 
 The section does not alter the rule that 
 a lessee has constructive notice of his 
 lessor's title: Patman v. Harland, 17 
 Ch. D. 353; 50 L.J. Ch. 642; nor does 
 it supersede the necessity for the usual 
 condition that the lessor's title shall not 
 be inquired into, and no objection shall 
 be made in respect of it : see Hume v. 
 Bentley, 5 De G. & Sm. 520. As to 
 bishop'-s leases, see Fane v. Spencer, 2 
 Madd. 438 ; and Dart, 290. [The pur- 
 chaser of land that turns out to be sub- 
 ject to an existing lease, which was not 
 communicated to the purchaser, will not 
 be compelled against his objection to take 
 a conveyance : Green v. Green, 9 Cow. 
 (N.Y.) 46; Fuller v. Hubbard, 6 id. 13 ; 
 Ellis V. Hoskins, 14 Johns. (N.Y.) 363 ; 
 Tucker v. Wood, 12 id. 190; Judson 
 V. Wass, II id. 525.] 
 
 14 
 
CHAP, v.] CONDITIONS OF SALE. 97* 
 
 years derived out of a leasehold interest in land, the intended 
 assign has no right to call for the title to the leasehold rever- 
 sion {j). 
 
 Upon the sale of renewable leaseholds it will probably be 
 [97] necessary to provide against the production of the title 
 prior to the subsisting lease {k). 
 
 Upon a sale of property held under a grant from the 
 Crown, e.g. tithes, the vendor should protect himself against 
 being required to produce the original grant, if it is not in 
 his possession (/). 
 
 Subject to the conditions, where the estate sold has been 
 taken in exchange at common law, the vendor must show the 
 titles, down to the exchange, to both estates (m) ; but if it 
 has been taken in exchange from the Church or under an 
 inclosure act, he will only have to show, down to the ex- 
 change, the title to the land given in exchange (/?). 
 
 Upon a sale of lands held under an inclosure act {o), it will 
 often be expedient to negative the purchaser's firimd facie 
 right to evidence of the validity of the award ; and attention 
 must be paid to the rule that, when an allotment has been 
 made in respect of lands held under different titles, all such 
 titles must be produced and proved (/). 
 
 If the titl6 to any part of the property commences with a 
 grant of waste by the lord of the manor, the purchaser should 
 be precluded from requiring evidence of the lord's right to 
 make grants of waste ; and, similarly, if a strip of the land 
 sold has been inclosed from the high road, the vendor should 
 protect himself by a stipulation against having to produce 
 evidence of prior title to such inclosure. 
 
 On a sale in lots, a purchaser of two or more lots held 
 wholly or partly under the same title has only a right to one 
 abstract of the common title, except at his own expense (^). 
 
 (^f) 44 & 45 Vict. c. 41, s. 3, sub-s. (??;) Bustard's Case, 4 Rep. 121 ; 
 
 I. A leaseholder undertaking to grant Sugd. 372. 
 
 an underlease still impliedly promises («) Dart, 287. 
 
 that he has a good title to let: Stranks (o) Except 6 & 7 Will. IV. u. 115, 
 
 J-. St. John, L.R. 2 C.P. 376; 36L.R.C.P. and 3 & 4 Vict. c. 31. 
 
 118. (^) Dart, 164, referring to I Dav. 
 
 (Ji) Dart, 171. 462. 
 
 If) lb., 166, 295, 353-6. (y) 44 & 45 Vict. c. 41, s. 3, sub-s. 7. 
 
 "5 
 
*98-99 CONDITIONS OF SALE. [pART I. 
 
 [98] A day for the delivery of the abstract is usually fixed 
 by the conditions ; but the conditions should not provide for 
 the vendor delivering an abstract by a given day, if it is 
 doubtful whether he will be able to do so ; for, if _ he fail to 
 deliver an abstract within the period appointed, or if the ab- 
 stract delivered be very imperfect, any condition binding the 
 purchaser to make his objections within a specified time will 
 fail of effect (r). 
 
 It is a common condition that the purchaser shall make all 
 requisitions upon, and objections to, the title within a given 
 time from the delivery of the abstract (s), and that all objec- 
 tions not made within that time shall be considered to have 
 been waived.^ It is usual, also, to enable the vendor to re- 
 scind the sale, notwithstanding any intermediate negotia- 
 tions (f), if any objection or requisition shall be made and 
 insisted upon which he shall be unable or unwilling to remove 
 or comply with. But the vendor must honestly endeavour to 
 answer all reasonable requisitions, and must give the pur- 
 chaser an opportunity of waiving such objections as cannot 
 be removed, and of accepting such title as he (the vendor) 
 can give (u). 
 
 A useful provision contained in the Vendor and Purchaser 
 Act, 1874, now enables a vendor or purchaser to obtain a 
 summary decision of a judge in chambers upon any question 
 [99] arising out of requisitions, objections, claims for compen- 
 sation, and the like (v). 
 
 Unless he stipulate to the contrary, the vendor is bound to 
 
 (r) See Dart, 125. (k) Duddell v. Simpson, L.R. 2 Ch. 
 
 (s) I.e. a perfect abstract : Hobson 102 ; 36 L.J. Ch. 70 ; Mawson v. 
 
 I/. Bell, 2 Beav. 17; Oakden v. Pike, Fletcher, L.R. 6 Ch. 91; 40 L.J. Ch. 
 
 II Jur. N.S. 666. [Gee w. Pearse, 2 131 ; cf. Powell j/. Powell, L.R. 19 Eq. 
 
 De G. & Sm. 325.] 422; 44 L.J. Ch. 31!; Bowman v. Hy- 
 
 {t) See Morley v. Cook, 2 Hare, land, 8 Ch. D. 588; 47 L.J. Ch. 581 ; 
 
 106; cf. Gardom v. Lee, 3 H. & C. 651 ; Jackson v. Oakshott, 14 Ch. D. 851 ; 49 
 
 34 L.J. Ex. 113; Gray v. Fowler, L.R. L.J. Ch. 523. 
 8 Ex. 249; 42 LJ. Ex. 161. (v) 37 & 38 Vict. c. 78, ». 9. 
 
 [' Goods consigned by the defendants to an auctioneer for sale were sold by 
 him to the plaintiff with the condition that no allowance should be made for 
 damage unless applied for within three days, when the bills were to be settled. 
 Held, that this condition limited the liability of the defendants, as well as that of 
 the auctioneer, to three days from the sale, even though the damage was not dis- 
 covered until after the lapse of that time : Atkins v, Howe, 18 Pick. (Mass.) 16.J 
 
 116 
 
CHAP, v.] CONDITIONS OF SALE. IOC* 
 
 produce, for verification of the abstract, all deeds and docu- 
 ments relating to the title to the property sold, whether they 
 are in his possession or not {w) ; and he must produce the 
 originals, and not merely attested copies, except in the case 
 of copies of, court roll and instruments upon record (such as 
 wills and enrolled deeds) and documents that are lost or have 
 been destroyed (x) ; but the purchaser cannot require the pro- 
 duction, or any abstract or copy, of any deed, will or other 
 document dated or made before the time prescribed by law, 
 or stipulated, for the commencement of the title, even though 
 the same creates a power subsequently exercised by an in- 
 strument abstracted in the abstract furnished to him ; nor 
 can he require any information, or make any requisition, ob- 
 jection or inquiry, with respect to any such deed, will or 
 document, or the title prior to that time, notwithstanding 
 that any such deed, will or other document, or that prior title, 
 is recited, covenanted to be produced, or noticed (/). 
 
 It has been held that a condition that the vendor shall not 
 be bound to produce any original deed or other document 
 not in his possession does not relieve him of his obligation 
 to verify the abstract ; for he may be able to prove his title 
 in some other way {2). 
 
 If and so far as a contrary intention is not expressed in the 
 contract of sale, the expenses of the production and [100] 
 inspection of all acts of parliament, inclosure awards, records, 
 proceedings of courts, court rolls, deeds, wills, probates, let- 
 ters of administration and other documents, not in the ven- 
 dor's possession, and the expenses of all journeys incidental 
 to such production or inspection, and the expenses of search- 
 ing for, procuring, making, verifying and producing all cer- 
 tificates, declarations, evidences and information not in the 
 vendor's possession and all attested, stamped, office or other 
 copies or abstracts of, or extracts from, any acts of parliament 
 " or other documents aforesaid," not in the vendor's posses- 
 sion, if any such production, inspection, journey, search, pro- 
 curing, making or verifying is required by a purchaser, either 
 
 (w) Southby v. Hutt, 2 My. & Cr. (y) 44445 Vict. c. 41, s. 3, sub-s. 3. 
 
 207. (z) Southby v. Hutt, 2 My. & Cr. 
 
 (x) See Dart, 142. 207 ; Osborne v. Harvey, 7 Jur. 229. 
 
 117 
 
*IOI CONDITIONS OF SALE. [pART I. 
 
 for verification of the abstract, or for any other purpose, are 
 borne by the purchaser who requires the same («). 
 
 The expenses to which the purchaser may be put for jour- 
 neys &c., in verification of the abstract, by reason of the 
 deeds in the vendor's possession not being produced at one 
 of the usual places for production (b) must, in the absence of 
 a special condition, be borne by the vendor {c). • 
 
 On a sale in lots, either the vendor should verify the ab- 
 stract at his own expense, or the expense of verification 
 should be divided among the purchasers in some specified 
 proportion ; otherwise the purchaser who first calls for evi- 
 dence may be at the sole cost of procuring it {d). 
 
 Where a condition provided that the purchaser should not 
 require any further proof of identity than was furnished by 
 the title-deeds themselves, it was held that the contract was 
 that the deeds should show identity, so that, if they did not, 
 a good title was not made {e). 
 
 [101] Facts stated in the conditions of sale as the ground of 
 the conditions must be proved, unless this is precluded (_/"). 
 
 Although a purchaser may be bound by the conditions to 
 accept certain specified evidence as sufficient proof of a ma- 
 terial fact,. he may yet require to be satisfied that the vendor 
 has no better evidence in his possession, and may, it would 
 seem, insist on a statutory declaration to that effect {g). 
 
 The Vendor and Purchaser Act, 1874, makes recitals, 
 statements and descriptions of facts, matters and parties, con- 
 tained in deeds, instruments, acts of parliament or statutory 
 declarations twenty years old at the date of the contract, un- 
 less, and except so far as, they shall be proved to be inaccu- 
 rate, sufficient evidence of the truth of such facts, matters 
 and descriptions {h) ; and now, by the Conveyancing and Law 
 
 (o) 44&45 Vict. c.4i,s. 3, sub-s. 6. G. 53; 3 De G. & Sm. 385; Cross v. 
 
 (^) I.e. at the vendor's residence or Lawrence, 9 Hare, 462; vague descrip- 
 
 in London. tion of copyholds : Long v. Collier, 4 
 
 (<r) Hughes v. Wynne, 8 Sim. 85. Russ. 267. If the evidence of identity 
 
 (</) Dart, 155. is very slender, the reference should be 
 
 («) Curling v. Austin, 2 Drew. & to the identity, if any. 
 
 Sm. 129; cf. Flower v. Hartopp, 6 Beav. (/) Symons v. James, i Y. & C.C.C. 
 
 476; 7 Jur. 613. As to lands of differ- 487. 
 
 ent tenures: Monro v. Taylor, 8 Hare, {g) Dart, 152. 
 
 51; Dawson v. Brinckmann, 3 Mac. & {h) 37 & 38 Vict. t. 78, ». 2, i. 2. 
 
 118 
 
CHAP, v.] CONDITIONS OF SALE. I02* 
 
 of Property Act, 1881, a purchaser of any property must as- 
 sume, unless the contrary appears, that the recitals contained 
 in the abstracted instruments, of any deed, will or other docu- 
 ment forming part of the . " prior title " {i), are correct and 
 give all the material contents of the deed, will or other docu- 
 ment so recited, and that every document so recited was duly 
 executed by all necessary parties and perfected, if, and as, 
 required, by fine, recovery, acknowledgment, enrolment or 
 otherwise {j). It may, however, be safer to employ the more 
 comprehensive [102] words of the usual condition that reci- 
 tals &c. shall be conclusive evidence of everything stated, 
 noticed, assumed or implied therein. 
 
 Where land sold is held by lease (not including underlease), 
 the purchaser must ■ assume, unless the contrary appears, that 
 the lease was duly granted ; and, on production of the receipt 
 for the last payment due for rent under the lease before the 
 date of actual completion of the purchase, he must assume, 
 unless the contrary appears, that all the covenants and pro- 
 visions of the lease have been duly performed and observed 
 up to the date of actual completion of the purchase {k). 
 
 Where land sold is held by under-lease, the purchaser must 
 assume, unless the contrary appears, that the under-lease and 
 every superior lease were duly granted ; and, on production 
 of the receipt for the last payment due for rent under the 
 under-lease before the date of actual completion of the pur- 
 chase, he must assume, unless the contrary appears, that all 
 the covenants and provisions of the under-lease have been 
 duly performed and observed up to the date of actual comple- 
 tion of the purchase, and further that all rent due under every 
 superior lease and all the covenants and provisions of every 
 superior lease have been paid and duly performed and ob- 
 served up to that date (/). 
 
 On the sale of an estate for lives the vendor is expected to 
 prove the existence and ages of the cestuis que vie. 
 
 (s) I.e. the title prior to the time [s.c, 8 De G., M. & G. 325] ; Lawrie v. 
 
 prescribed by law, or stipulated, for the Lees, 7 App. Cas. 19; 49 L.J. Ch. 636; 
 
 commencement of the title. 30 W.R. 185 ; Ringer v. Thompson, W. 
 
 0') 44 & 45 Vict. K.. 4:, s. 3, sub-s. 3. N., 1881, I33J aff. W.N. 1882, 21. 
 
 (i) 44 & 45 Vict. c. 41, s. 3, sub-s. 4; (/) lb. sub-s. 5. 
 
 cf. Howell V. Kightley, 21 Beav. 331 ; 
 
 119 
 
'I03 
 
 CONDITIONS OF SALE. 
 
 [part I. 
 
 Where the evidence of some fact upon which the title 
 depends is insufficient, and there is no better means of verifi- 
 cation, it is frequently provided that the purchaser shall [103] 
 be satisfied with a statutory declaration confirmative of the 
 title on the point on which it is defective {ni). 
 
 4. Conditions Relating to the Completion of the Purchase. — 
 The conditions should fix the day upon which the purchase 
 is to be completed. Whether time is of the essence of a con- 
 tract will depend upon whether the parties appear to have 
 intended it to be so («). 
 
 {in) Dart, 14S. 
 
 (11) Patrick v. Milner, 2 C.P.D. 342; 
 46 L.J.Q.B. 537; and see Noble v. Ed- 
 wardes, 5 Ch. D. 379. It maybe made 
 so by notice : Crawford v. Toogood, 13 
 Ch. D. 153; 49 L.J. Ch. 108; Green v. 
 Savin, 13 Ch. D. 5S9; 49 L.J. Ch. 166; 
 Jud. Act, 1873, s. 25, sub-s. 7. [In 
 Barnard v. Lee, 97 Mass. 92, Mr. Justice 
 Gray said, in delivering the opinion of the 
 court : "The doctrine that time is not of 
 the essence of a contract is generally ap- 
 plied in equity to stipulations for the pay- 
 ment of money upon an agreement for 
 the sale and purchase of real estate. The 
 principal grounds of the doctrine are 
 that the rule of the common law, re- 
 quiring performance of every contract 
 at the appointed day, is often harsh and 
 unjust in its operation; that although 
 some time of performance by each party 
 is usually named in any agreement for 
 the sale of land, it is often not regarded 
 by the parties as one of the essential 
 terms of their contract; and that a court 
 of chancery has the power of moulding 
 the remedy according to the circum- 
 stances of each case, and of making 
 due compensation for delay without 
 punishing it by a forfeiture of all right 
 to relief. This equitable doctrine was 
 formerly carried to an unreasonable ex- 
 tent, and the specific performance of 
 contracts enforced after such a lapse of 
 time and change of circumstances as to 
 produce as much injustice as it avoided. 
 In modern times the doctrine has been 
 more guardedly applied; and it is now 
 
 held that time, althouLgh not ordinarily 
 of the essence of a contract in equity, 
 yet may be made so by clear manifes- 
 tation of the intent of the parties in the 
 contract itself, by subsequent notice 
 from one party to the other, by laches 
 in the party seeking to enforce it, or by 
 change in the value of the land, or other 
 circumstances which would make a de- 
 cree for the specific performance in- 
 equitable. The best statements, in the 
 English books, of the rule and its rea- 
 sons and limitations are perhaps to be 
 found in the opinions of those judges 
 whose practical experience in the com- 
 mon law enabled them more intelli- 
 gently to restrain the application of the 
 rule within proper limits ; as for instance 
 by Lord Eldon, in the leading case of 
 Seton V. Slade, 7 Vesey, 273, 274, by 
 Lord Erskine in Hearne v. Tennant, 13 
 Ves. 28S, and by Baron Alderson in 
 Hipwell V. Knight, i Yo. & Coll. Exch. 
 411,415,416. In this age and country, 
 as suggested by Mr. Justice Livingston, 
 in his dissenting opinion in Llepburn v. 
 Auld, 5 Cranch, 279, by Mr. Justice 
 Chapman in Richmond v. Gray, 3 Allen, 
 30, 31, and Goldsmith v. Guild, 10 Allen, 
 241, 242, the more frequent fluctuations 
 in the value of land, and in the business 
 and circumstances of men, than in Eng- 
 land when the doctrine was established, 
 are important to be considered in each 
 case, and especially when the vendor 
 sues to compel the specific performance 
 of a contract for the purchase of land 
 to which he is unable to maicc a good 
 20 
 
CHAP, v.] 
 
 CONDITIONS OF SALE. 
 
 103' 
 
 It is unnecessary, although usual, to provide that the ven- 
 dor shall, upon payment of the purchase-money, execute a 
 proper conveyance, to be prepared by and at the expense of 
 the purchaser, and by him tendered for execution at a speci- 
 fied time and place : the contract implies thus much (<?). It 
 
 title at the time of bringing his suit. 
 But the geneial doctrine has been 
 adopted by American courts of chan- 
 cery, and has been repeatedly recog- 
 nized and affirmed by the supreme 
 court of the United States and by this 
 court : Hepburn v. Dunlop, i Wheat. 
 196; Brashier v. Gratz, 6 Wheat. 533; 
 Taylor v. Longvvorth, 14 Peters, 174, 
 175; Fuller V. Hovey, 2 Allen, 325; 
 Goldsmith u. Guild, 10 Allen, 241. 
 Although the parties may make time of 
 the essence of their contract by express 
 stipulations to that effect, it is not suffi- 
 cient that they should name the time of 
 performance in the contract, and thus 
 manifest their intention distinctly enough 
 for the purposes of a court of law. But 
 it must appear that they really intended 
 to make such time an essential element 
 of their agreement; in the words of 
 Lord Erskine in 13 Ves. 289, * a material 
 object to which they looked in the first 
 conception of it'; or as Baron Alder- 
 son, I Yo. & Col. Exch. 415 stated the re- 
 sult of the previous authorities, * A court 
 of equity is to be governed by this prin- 
 ciple : it is to examine the contract, not 
 merely as a court of law does, to ascer- 
 tain what the parties have in terms ex- 
 pressed to be the contract, but what is 
 in truth the real intention of the parties, 
 and to carry that into effect.' The mere 
 circumstance therefore that the instru- 
 ment is in the ordinary form of a bond, 
 concluding with the clause that it 
 shall be void in case of a breach of the 
 condition, otherwise remain in full force, 
 does not necessarily make time of the 
 essence of the contract : MoUoy v. Egan, 
 7 Irish Eq. 592; Jones -u. Robbins, 29 
 Maine, 351. . . . The question whether 
 time is to be deemed of the essence of 
 the contract depends upon all the cir- 
 cumstances of the case, and is not or- 
 
 12 
 
 dinarily to be decided until the hearing : 
 Levy V. Lindo, 3 Meriv. 81 ; Foxlowe v. 
 Amcoats, 3 Beav. 496 ; Verplank v. 
 Caines, i Johns. Ch. 59." And see 
 further Holt v. Rogers, 8 Peters, 420; 
 King V. Hamilton, 4 Peters, 31 1; Me- 
 chanics' Bank v. Lynn, i Peters, 383; 
 Pratt V. Law, 9 Cranch, 456, 493, 494; 
 Stow V. Russell, 36 Ills. 19; Milnor v. 
 Willard, 34 Ills. 38 ; Heckard v. Sayre, 
 34 Ills. 142; Griffin v. lieermance, I 
 Clarke (Iowa), 133; Page v. Plughes, 
 2 B. Mon. (Ky.) 439; Hall v. Noble, 40 
 Maine, 459 ; Jones v. Robbins, 29 
 Maine, 351; Rogers v. Saunders, 16 
 Maine, 92, 99, 100; Boston & Maine 
 R.R. Co. V. Bartlett, 10 Gray (Mass.) 
 384; Runnels!'. Jackson, I How. (Miss.) 
 358; Pickering v. Pickering, 38 N.II. 
 400; Grigg V. Landis, 2I-N.J. Eq. (6 
 C. E; Green) 494; King v. Buckman, 
 21 N.J. Eq. 599; s.c, 20 N.J. Eq. (5 
 C. E. Green) 316; Bullock v. Adams, 
 id. 367; Huffman ii. Hummer, 17 N.J. 
 Eq. (2 C. E. Green) 263; Young v. 
 Rathbone, 16 N.J. Eq. (i C. E. Green) 
 224 ; Wiswall v. McGown, 2 Barb. 
 (N.Y.) 270; Baldwin -u. Salter, 8 Paige 
 (N.Y.) 473; Wells V. Wells, 3 Ired. 
 Eq. (Nor. Car.) 596; Scott v. Fields, 
 7 Ohio, Pt. II., 90; Dubois v. Baum, 
 46Penn.St. 537; Westermann 7a Means, 
 12 Penn. St. 97; Doar v. Gibbes, i Bailey 
 Eq. (So. Car.) 371.] 
 
 (0) Poole u. Hill, 6 M. & W. 835; 
 9 D.P.C. 300. [In this country, it is 
 the general rule that the vendor must 
 at his own expense prepare and deliver 
 the deed, on receiving the price of the 
 land. See Taylor v. Longworth, 14 
 Peters, 172; Arledge v. Rooks, 22 Ark. 
 427; Smith V. Lewis, 26 Conn, no; 
 s.c, 24 Conn. 624; Headley v. Shaw, 
 39 Ills. 354 ; Warner v. Hatfield, 4 
 Blackf. (Ind.) 392 ; Winton v. Sher- 
 I 
 
*I04 CONDITIONS OF SALE. [pART I. 
 
 • 
 
 is very properly the practice to stipulate that a draft of the 
 proposed conveyance shall, at some time before the day fixed 
 for completion, be furnished for the perusal of the vendor's 
 solicitor. 
 
 A condition that the purchaser shall have a proper convey- 
 ance at his own expense does not throw upon him the expense 
 of procuring the concurrence of necessary parties (/). 
 
 It is usual to provide that the purchaser shall be at the 
 expense of getting in and procuring the surrender or release 
 of any outstanding legal estate or term {q). 
 
 When the sale is by trustees or mortgagees, or other [104] 
 persons who do not enter into the usual covenants for title, 
 the fact should be mentioned in the conditions. 
 
 When the purchase is not completed on the day fixed by 
 the conditions, the general rule, in the absence of stipula- 
 tion, is, that the purchaser must pay interest on the unpaid 
 part of his purchase-money, and may take the profits of the 
 estate from the day on which the purchase ought to have 
 been completed, the vendor being liable for the outgoings up 
 to that time ; ' but this rule has been so much modified by 
 successive cases (r) that it has become the almost universal 
 practice to insert a stipulation that the purchaser shall pay 
 
 man, 20 Iowa, 295; Jackson v. Speed, (Nor. Car.) 554; Walling?'. Kinnard, 10 
 
 2 Duvall (Ky.) 426; Hill v. Hobart, Texas, 508; Seeley z;. Howard, 13 Wise. 
 
 16 Maine, 164; Smoot v. Rea, 19 Md. 336; Davidson v. Van Pelt, 15 Wise. 
 
 398; Tinneyi'. Ashley, 15 Pick. (Mass.) 341.] 
 
 546; St. Paul Division v. Brown, 9 (/) Paramore ''. Greenslade, i Sm. 
 
 Minne. 157; Standifer v. Davis, 13 Sm. & G. 541. 
 
 & M. (Miss.) 48; Johnston v. Beard, 7 (r^) SeeDart, 156; Stronge z/.Hawkes, 
 
 id. 214; Carpenter v. Brown, 6 Barb -> Jur. N.S. 388. 
 
 (N.Y.) 147; Connelly I'. Pierce, 7 Wend. (r) Wilson v. Clapham, i J. & W. 
 
 (N.Y.) 129; Huffman v. Hummer, l8 36; Winter v. Blades, 2 Sim. & Stu. 
 
 N.J. Eq. (3 C. E. Green) S3; Guthrie v. 395; Dyson v. Hornby, 4 De G. & Sm. 
 
 Thompson, I Oregon, 353; Callaghan 481; Acland z/. Gaisford, -> Madd. 28; 
 
 z/. McCredy, 48 Penn. St. 463; Sweitzer Regent's Canal Co. v. Ware, 23 Beav. 
 
 V. Hummel, 3 Serg. & R. (Penn.) 228 ; 575 ; I Dav. 572 et seq. ; [De Visme v. 
 
 Tharin v. Fickling, 2 Rich. (So. Car.) De Visme, I Mac. & G. 336;] Sugd. 
 
 361 ; Hardy v. McKesson, 6 Jones Law 627-8. 
 
 [' See Thomas v. Davenport, I Wash. C.C. 127; Baxter v. Brand, 6 Dana 
 (Ky.) 296; Parke v. Leewright, 20 Mo. 85; Cleveland v. Burrell, 25 Barb. (N.Y.) 
 532; McKay v. Melvin, i Ired. Eq. (Nor. Car.) 73; Fasholt v. Reed, 16 Serg. 
 & R. (Penn.) 266; Hundley v. Lyons, 5 Munf. (Va.) 342; Mayo v. Purcell,' 3 
 id. 243.] 
 
 122 
 
CHAP, v.] 
 
 CONDITIONS OF SALE. 
 
 IDS" 
 
 interest, if, from any cause whatever, the purchase shall be 
 delayed beyond the appointed day (s). Under such a con- 
 dition interest will be payable, although the delay which 
 occurs is caused by the state of the title ; but not if it is 
 caused by the misconduct of the vendor (i). 
 
 If, where days are fixed for the delivery of the abstract 
 and the completion of the purchase, the vendor fails to de- 
 liver a sufficient abstract until after the appointed time, inter- 
 est will only begin to run from the expiration of such a period 
 after the delivery of the abstract as by the contract for sale 
 was allowed between the day fixed for [105] delivering the 
 abstract and that fixed for completing the purchase (u). 
 
 If the property consist of an annuity or rent charge for life, 
 it will be proper to state whether the sale is to be affected 
 by the death of the annuitant before the completion of the 
 purchase (v). 
 
 Generally speaking, the property is at the purchaser's risk 
 as from the time of sale ; he should, therefore, insure it im- 
 mediately afterwards (w). But, if there be no stipulation 
 
 (j) I Dav. 577. Interest may be 
 reserved at an increasing rate : Herbert 
 V. Salisbury & Yeovil Ry. Co., L.R. 2 
 Eq. 221. The condition generally pro- 
 ceeds to provide for the purchaser hav- 
 ing possession or being let into the re- 
 ceipt of the rents and profits and for 
 the clearing of the out-goings. " Pos- 
 session " does not necessarily import 
 a personal occupation: Lake v. Dean, 
 28 Beav. 607. " Rents and profits " 
 include a fair occupation rent : Metro- 
 politan Ry. Co. V. Defries, 2 Q.B.D. 
 387. See Dart, 128-9. 
 
 (/) Williams v. Glenton, L.R. I Ch. 
 200; 35 L.J. Ch. 284. See also Mr. 
 Dart's observations on De Visme v. De 
 Visme, i Mac. & G. 336; V. & P. 127-8. 
 [January v. Martin, i Bibb (Ky.) 586 ; 
 Hart V. Brand, i A. K. Marsh. (Ky.) 
 159; McKay v. Melvin, I Ired. Eq. (Nor. 
 Car.) 73; Kester v. Rockel, 2 Watts 
 & S. (Penn.) 365.] 
 
 _ (k) Sherwin v, Shakspear, 2 Eq. 
 K^P- 957; [17 Beav. 267;] 5 De G., M. 
 & G. 517; I Dav. 456. 
 
 (z/) In Kenney v. Wexham, 6 Madd. 
 355, specific performance was decreed, 
 although the annuitant was dead at the 
 time of the decree : but see Hitchcock 
 V. Giddings, [4 Price, 135] Dan. I. 
 [Bates V. Delavan, 5 Paige (N.Y.) 
 299.] 
 
 (w) Lysaght v. Edwards, 2 Ch. D. 
 499, 507; 45 L.J. Ch. 544; Rayner v. 
 Preston, 18 Ch. D. I [affirming S.C., 14 
 Ch. D. 297] ; 50 L.J. Ch. 472. [Ham- 
 mer V. Johnson, 44 Ills. 192; King v. 
 Preston, II La. Ann. 95; Wood v. 
 Northwestern Ins. Co., 46 N.Y. 421; 
 McKechnie v. Sterhng, 48 Barb. (N.Y.) 
 330; Hill V. Cumberland Valley Mutual 
 Protection Co., 59 Penn. St. 474; Reed 
 V. Lukens, 44 Penn. St. 200; Robb v. 
 Mann, 11 Penn. St. 300. But see Gib- 
 son v. Eller, 13 Ind. 124; Wainscott v. 
 Silvers, 1 3 Ind. 497 ; Thompson v. Gould, 
 20 Pick. (Mass.) 134; Blew v. McClel- 
 land, 29 Mo. 304; Benjamin «<. Saratoga 
 Ins. Co., 17 N.Y. 415.] 
 
 [23 
 
*I06 CONDITIONS OF SALE. [PART I. 
 
 providing for accident, a purchaser is not bound to accept 
 the title, when the title-deeds have been destroyed by fire, 
 although after they had been examined with the abstract (x). 
 
 Goods were sold by auction subject to the condition of 
 " the lots to be cleared away within three days ; " ' it was held 
 that this was not a condition precedent to the buyer's right 
 to claim delivery, and that a default of the buyer in clearing 
 the lots bought, although a breach of the condition, and al- 
 though it might justify a resale against the buyer under an 
 express condition to that effect, did not alone deprive him of 
 his right to claim the goods (jj/). 
 
 Upon the completion of the purchase the vendor is bound 
 to deliver to the purchaser the documents of title in his pos- 
 session which do not also relate to other property of his, and 
 attested copies of those which he does not hand over (except 
 copies of court roll and instruments of record), and to cove- 
 [106] nant for the production of these latter (s) ; but the 
 inability of the vendor to furnish the purchaser with a legal 
 covenant to produce and furnish copies of documents of title 
 is no objection to the title, in case the purchaser will, on the 
 
 (ji") Bryant v. Busk, 4 Russ. I. be observed by the purchaser to enable 
 
 [This decision would not apply if the him to enforce the contract, and that 
 
 purchaser had, before the fire, agreed the defendants were not limited to the 
 
 to accept the title.] remedies provided for, but might well 
 
 (y) Leake, 654; Woolfe v. Home, consider themselves absolved from the 
 
 L.R. 2 Q.B.D. 355; 46 L.J.Q.B. 534. contract by the purchaser's failure to 
 
 [By the terms of an auction sale of coal, perform his part thereof: Higgins v. 
 
 the coal was to be taken away by the Delaware & Hudson R.R. Co., 60 N.Y. 
 
 purchaser in October, and if he failed 553.] 
 
 to do so the defendants had the option (:) Gabriel v. Smith, 1 6 Q.B. 847; 
 to discontinue further delivery, and re- 20 L.J.Q.B. 386; 37 & 38 Vict. c. 78, s. 
 tain the earnest-money or to resell on 2, r. 5; Dart, 142-4. See now 44 & 
 account of the purchaser. The pur- 45 Vict. c. 41, s. 9, as to " acknowledg- 
 chaser did not call for the coal until ment" and "undertaking." The pur- 
 February, when the defendant's stock chaser is not entitled to a covenant for 
 of coal was nearly exhausted; they the production of deeds of bargain and 
 refused to deliver; and the purchaser sale enrolled under 9 Anne, c. 18, or 
 brought suit for this refusal. Held, that of copies of court roll not in the posses- 
 the stipulation as to the time of delivery sion of the vendor : Cooper v. Emery, 
 was a condition precedent, which must I Ph. 388; 10 Sim. 609; 8 Jur. iSl. 
 
 [' The conditions of an auction sale of land and buildings provided that the 
 buildings should be sold separately, "to be removed within thirty days." Held, 
 that the purchaser of a building who also purchased the lot upon which it stopd 
 was not bound to remove il : Plume -■. Small, 5 N.J. Eq. (i Halst.) 460 & 650.] 
 
 124 
 
CHAP. V.J CONDITIONS OF SALE. IO7* 
 
 completion of the contract, have an equitable right to the 
 production of such documents {a). Subject to any stipulation 
 to the contrary in the contract, such covenants for produc- 
 tion as the purchaser can and does require are furnished at 
 his expense, the vendor bearing the expense of perusal and 
 execution by and on behalf of necessary parties other than 
 the purchaser {b) ; and now, where the vendor retains posses- 
 sion of any document, the expense of making any copy 
 thereof, attested or vtnattested, which a purchaser requires 
 to be delivered to him, is to be borne by that purchaser (<:). 
 
 On the sale of a property in lots, without stipulation as to 
 the custody of the deeds, the purchaser of the largest lot in 
 value is entitled to the deeds ; but in a condition that the 
 purchaser of the largest lot shall have the deeds, "largest" 
 lot means largest in superficial area {d). 
 
 5. Conditions Relating to Misdescriptions in the Particulars. 
 — A condition is commonly inserted, providing that any 
 misdescription in the particulars either way shall not annul 
 [107] the sale, but shall be matter for compensation ; and, as 
 a rule, the condition fixes the manner in which the compen- 
 sation is to be settled. Such a condition has been held to 
 apply to such misdescriptions as, in its absence, would vitiate 
 the contract {c) ; but it cannot be enforced against the pur- 
 chaser, where there has been fraud, either wilful or construc- 
 tive, on the part of the vendor (/") ; or where the misdescrip- 
 
 (fl) 37 & 38 Vict. u. 78, s. 2, 1. 3. defendant bid off two fields, which were 
 (^) lb. r. 4. represented as containing seventy acres, 
 (<r) 44 & 45 Vict. c. 41, s. 3, sub-s. 6. but were probably much smaller, and 
 {d) Griffiths v. Hatchard, i K. & J. after the bidding was over they made a 
 17. [Scott V. Jackman, 21 Beav. no; contract for the renting of the whole of 
 Kinnard v. Christee, 21 Beav. Ill, n.] the land, and the defendant gave his 
 The purchaser who is to have the deeds note for the rent agreed upon, this was 
 is generally made to covenant for their held to be a new and independent con- 
 production, tract, unaffected by the false represen- 
 {i) Leslie z/. Tompson, 9 Hare, 26S ; tation that had been made at the auc- 
 20 L.J. Ch. .561; 15 Jur. 717. What tion : Davisf.Winsraith, 5 So. Car. 332.] 
 effect a misdescription will have irre- (/) Duke of Norfolk v. Worthy, i 
 spectively of any condition has already Camp. 337; cf. Dalby v. Pullen, 3 Sim. 
 been discussed in Ch. IV., a«/f. As to 29; Wilde v. Gibson, i II.L.C. 605; 
 recovering compensation after comple- 12 Jur. 527. Cf. anlc, pp. 50, 51, 57, 
 tion, see «;;/'<', p. 52, note (f). [Where note (i/). [Parham v. Randolph, 4 
 theownerof land offered to rent it in sep- How. (Miss.) 435; Bradley z'. Bosley, 
 arate parcels by public auction, and the i Barb. Ch. (N.Y.) 125.] 
 
 125 
 
*io8 
 
 CONDITIONS OF SALE. 
 
 [part I. 
 
 tion is on a material and substantial point, so far affecting 
 the subject of the contract that it may be reasonably supposed 
 that but for such misdescription, the purchaser would not 
 have entered into the contract at all {g) ; or where, from the 
 nature of the misdescription, the principle of compensation is 
 inapplicable {h). The purchaser will be held to his bargain, 
 if he was aware of the actual state of the property at the time 
 when he purchased (i). 
 
 Sometimes it is stipulated that no allowance for misde- 
 scription shall be made or required either way. Where this 
 was the case, and the purchaser sued for specific performance 
 with, the Court decreed it without, compensation (_;). 
 
 [108] The condition as to compensation frequently pro- 
 vides that any dispute which may arise under the contract 
 shall be referred to arbitration. A breach of such a stipula- 
 tion is a good cause of action {k). 
 
 Contracts for the sale of goods are often made upon con- 
 dition that in case of breach of warranty the buyer may 
 rescind the contract, return the goods and recover the price 
 
 {£) See ante, p. 52; cf. Wheatley v. 
 Slade, 4 Sim. 126; Dykes v. Blake, 6 
 Sco. 20; 4 King. N.C. 463; 7 L.J.C.P. 
 282; 10 W.R. 665; In re Arnold, 14 
 Ch. D. 270, 2S0. [Bostwick v. Lewis, 
 I Day (Conn.) 33, 250; Norton v. 
 Hathaway,id. 255, n. ; Pringle v. Samuel, 
 I Liu. (Ky.) 43; Reed v. Hornback, 4 
 J. J. Marsh. (Ky.) 375; Graham v. 
 Hendren, 5 Munf. (Va.) 185.] 
 
 (Ji) Sherwood v. Robins, Moo. & M. 
 194; White V. Cuddon, 8 CI. & Fin. 
 766; cf. Flight V. Booth, i Sco. 190; 
 I Bing. N.C. 370; 34 L.J.C.P. 66; Rof- 
 fey V. Smallcross, 4 Madd. 227. 
 
 {i) Farebrother v. Gibson, i De G. 
 & J. 602; cf. White V. Cuddon, ubi 
 supra, where also see as to trustees: 
 Goddard v. Jeffreys, W.N. iSSi, 160. 
 [Craddock v. Shirley, 3 A. K. Marsh. 
 (Ky.) 288; Schuyler v. Russ, 2 Caines 
 (N.Y.) 202.] 
 
 (y) Cordingley v. Cheesborough, 3 
 Giff. 496; 31 L.J. Ch. 617; 6 L.T.N.S. 
 15. 342; 8 Jur- N.S. 585, 755; cf. 
 
 Whittemore v. Whittemore, L.R. 8 Eq. 
 603. [See Clark v. Bell, 4 Dana (Ky.) 
 115; Hoffman v. Johnson, I Bland Ch. 
 (Md.) 103; Joliffe -'. Hite, i Call 
 (Va.) 301.] 
 
 (/5) Livingston v. Ralli, 5 E. & B. 
 132; 3 C.L.R. 1096; 24 L.J.Q.B. 269; 
 I Jur. N.S. 594. [An agreement to 
 submit a difference arising on a contract 
 to arbitration is not a good plea in bar 
 to an action on such a contract, though 
 the breach of it may be a good ground 
 of action ; Cobb v. New England Ins. 
 Co., 6 Gray (Mass.) 192; Shaw, C.J., in 
 Nute V. Hamilton Ins. Co., id. 174, 182. 
 See also Tobey v. Bristol, 3 Story, C.C. 
 Soo; Evans v. Clapp, 123 Mass. 165; 
 Pearl v. Harris, 121 Mass. 390; Wood 
 V. Humphrey, 114 Mass. 185; King v. 
 Howard, 27 Mo. 21 ; Smith v. Boston, 
 Concord & Montreal R.R. Co., 36 N.H. 
 458, 487 ; March v. Eastern R.R. Co., 40 
 N.H. 54S, 571 ; Cooper v. Wells, I N.J. 
 Eq. (Saxton) 10.] 
 
 [26 
 
CHAP, v.] CONDITIONS OF SALE. IO9* 
 
 paid (/). If the condition limits the time for returning the 
 goods, the buyer is not bound to abstain from taking them 
 away, or to return them immediately, after receiving notice 
 of a defect in them ; and if, without his default, an accident 
 happens to them within the limited time, the loss will not fall 
 upon him (;«). A condition limiting the duration of a war- 
 ranty covers defects unknown to the vendor which are only 
 discovered by the purchaser after the expiration of the time 
 for which the warranty was given («). 
 
 6. Conditions Relating to Forfeiture of the Deposit and a 
 Resale of the Property. — The conditions generally conclude 
 with a provision for the deposit being forfeited, and the prop- 
 erty being resold, in case of the purchaser failing to comply 
 with the conditions, and for the costs of the resale, and any 
 deficiency in price consequent upon it, being borne by the 
 purchaser {o). [109] Under such a condition, if the pur- 
 chaser makes default, and the vendor resells the property, the 
 vendor can only recover, in addition to the deposit, so much 
 of the difference between the two prices and of the expenses 
 of the resale as is not satisfied by the deposit (/). If upon 
 
 (/) Leake, 672. 7 Conn. 291, approved in Gammon v. 
 
 (m) Headz;. Tattersall, L.R. 7 Ex. 7; Howe, 14 Maine, 250; Brewster w. Ed- 
 
 41 L.J. Ex. 4. [This is an exception to gerly, 13 N.H. 275; Mott z/. Mott, 11 
 
 the general rule that a purchaser can- Barb. (N.Y.) 127; Pearson z/. Williams, 
 
 not rescind a contract of sale if he has 26,Wend. (N.Y.) 630; Williams I'.Dakin, 
 
 in the meantime altered the condition 22 id. 201 ; Dakin v. Williams, 17 id. 
 
 of the property. See Hunt v. Wyman, 447; Smith !<. Smith, 4 id. 468; Bealei'. 
 
 100 Mass. 198.] Hayes, 5 Sandf. (N.Y.) 640. Where a 
 
 (») Smart v. Hyde, 8 M. & W. 723; sheriff's conditions of sale provided that 
 
 I Dowl. N.S. 60; Chapman v. Gwyther, the sale should be adjourned for a fort- 
 
 L.R. I Q.B. 463 ; 35 L.J.Q.B. 142. night in case the highest bidder should 
 
 [Atkins V. Howe, 18 Pick. (Mass.) 16; refuse to comply with the conditions of 
 
 and see McCormick v. Dunville, 36 the sale, and the person bidding off the 
 
 Iowa, 645; Aultman v. Theirer, 34 land did so refuse, and the sheriff, instead 
 
 Iowa, 272 ; Marshall v. Perry, 67 Maine, of adjourning the sale, put the land up 
 
 78; Seigworthz<.Leffel, 76Penn. St.'476.] again on the same day, and sold it to 
 
 (0) See Essex v. Daniell, L.R. 10 the highest bidder, this was held to be a 
 
 C.P. 538; 32 L.T.N.S. 476; Thomas v. valid sale, in T>env. Young, 12 N.J. Law 
 
 Brown, I Q.B.D. 715 ; 45 L.J.Q.B. 811 ; (7 Halst.) 300.] 
 
 Cooper V. L. B. & S. C. Ry. Co. 4 Ex. (/) Ockenden v. Henly, E.B. & E. 
 
 D. 88; 48 L.J.Q.B. 434; Want v. StaUi- 485; 27 L.J.Q.B. 361; 4 Jur. N.S. 999. 
 
 brass, L.R, 8 Ex. 175; 42 L.J.Q.B. 108; As to goods, see post, p. 200. [And 
 
 Best V. Hamand, 12 Ch. D. I; 48 L.J. the deficit must be ascertained by a re- 
 
 Ch. 503; [Such a provision is not a sale : Webster v. Hoban, 7 Cranch, 
 
 mere penalty. See Tingley v. Cutler, 399.] 
 
 127 
 
*IIO CONDITIONS OF SALE. [PART I. 
 
 resale the estate produces more than the original purchase- 
 money, the defaulting purchaser cannot call for an account of 
 the surplus {g). 
 
 If a purchaser becomes bankrupt, his trustees may, in cer- 
 tain cases, elect whether to complete-or abandon the purchase; 
 but he is bound by the condition as to resale as much as was 
 the purchaser himself (r). 
 
 Even in the absence of express stipulation, if the pur- 
 chaser fails to complete, he will forfeit his deposit ; and 
 the vendor, having a lien on the estate for the purchase- 
 money, will be entitled to have it resold, and will be able 
 to recover the deficiency, if any, from the purchaser, or to 
 prove for it as a debt upon his estate, if he has become 
 bankrupt {s). 
 
 If the purchase goes off on account of a defect in the title, 
 the purchaser can recover his deposit with interest from the 
 time of payment, and his costs of investigating the title {t) ; 
 but his right to interest and costs is generally barred by a 
 special condition. 
 
 [110] Sometimes the last condition provides for stipulated 
 damages being paid by either party making default ; but the 
 
 {q) £;i;/a;-/^ Hunter, 6 Ves. 94, 97; {/) Sykes <■. Weld, 7 Jur. N.S. 12S0; 
 
 [Lethbridge z'. Kirkman, 25 L.T.N.S. cf. Pounsett v. Fuller, 1 7 C.B. 660 ; 
 
 89;] but see Ex parte Gyde, i G. & J. [Bethune v. Farebrother, 5 Man. & S. 
 
 323. [See Thompson v. Kelly, loi 3S5; Edden !<. Read, 3 Campbell, 33S; 
 
 Mass. 291; Irvin v. Bleakley, 67 Penn. Hepburn v. Dunlop, i \Yheaton, 179; 
 
 St. 24.] ^Yilliams v. Rogers, 2 Dana (Ky.) 374.] 
 
 (r) See post, p. 189, note (;), and Flureau v. Thornhill, 2 W. Bl. 1078; 
 
 the ca.ses cited below; also Jloeser v. Kirtland v. Pounsett, 2 Taunt. 145; 
 
 Wisker, L.R. 6 C.P. 120; cf. Ex parte Clare w. Maynard, 6 A. & E. 519; i N. 
 
 Barrel!, L.R. 10 Ch. 512. &P. 701; Hopkins ?■. Grazebrook, 6 B. 
 
 (j) Depree v. Bedborough, 4 Giff. & C. 31 ; Walker v. Moore, 10 B. & C. 
 479; 33 L.J. Ch. 134; Bowles v. Rog- 416. [So, if after a sale by auction of 
 ers, 6 Ves. 95, note (rz) ; [i Cook, 123;] a bankrupt's estate the adjudication of 
 Ex parte 'hmd. Seaforth, 19 Ves. 235; bankruptcy is annulled, the court will 
 Ex parte Gyde, i G.& J. 323; Hope v. order the deposit to be returned to the 
 Booth, I B. & Ad. 498. {_Ex parte purchaser: iT.rjbtj?-/^ Fector, Buck, 428. 
 Hunter, 6 Vesey, 94; Andrew v. An- And generally, if there is no contract 
 drew, 8 De G., M. & G. 336.] The ven- which can be enforced, the purchaser 
 dor cannot exercise his lien against a will be entitled to a return of his de- 
 sub-purchaser for value without notice: posit: Capon v. Roberts, 31 Beav. 613. 
 Kettlewell -u. Watson, W.N. 1882, 11. The vendor cannot both rescind the 
 As to goods see supra, ^, 105; post, pp. contract and retain the deposit: Morley 
 199, 200. V. Cook, 2 Hare, no, in.] 
 
 128 
 
CHAP, v.] CONDITIONS OF SALE. I ID* 
 
 construction of such a clause appears to be attended with 
 some doubt {u) ; it seems to raise a presumption that a for- 
 feiture of the deposit was not intended {v). 
 
 (a) Randall v. Everest, 2 C. & P. 600. [Shute v. Taylor, 5 Met. (Mass.) 
 577; Moo. &M. 41; Crisdee !<. Bolton, 67.] 
 
 3 C. & P. 240; Hinton v. Sparkes, L.R. {v) Palmer v. Temple, 9 A. & E. 
 
 3C.P. 161; 37L.J.C.P. 81; 17L.T.N.S. 508; iP. &D. 379. 
 
 129 
 
*III THE SALE. [parti. 
 
 [Ill] 
 
 CHAPTER VI. 
 
 THE SALE. 
 
 Assuming that the auctioneer is properly provided with a 
 licence, is duly authorized to sell, and has satisfactorily ar- 
 ranged the preliminaries, we now come to consider what are 
 his rights, duties and functions with regard to the actual sale. 
 
 On -what Premises Sale may be Conducted. — As has been 
 seen (a), an auctioneer is not restricted to carrying on busi- 
 ness on his own premises, but may conduct sales on any 
 premises he chooses. ' But care should be taken that the 
 
 (a) Ante, p. 14. 
 
 [' An auctioneer has no right to place goods intended for sale in the public 
 streets; if he does so, he may be indicted for a nuisance: Commonwealth v. 
 Passmore, i Serg. & R. (Penn.) 217. If a forced sale of land advertised to be 
 made on the premises is not made immediately thereon, but within eighty yards' 
 distance from the dwelling-house, in full view of it, and eighteen or twenty steps 
 from the boundary line, some of those present at the sale believing that they are 
 actually on the premises, the sale will not be set aside if it is regular in other 
 respects, and no fraud appears: Ferguson v. Franklin, 6 Munf. (Va.) 305. A 
 sheriff's sale of leasehold property need not be made upon the premises : Sowers 
 ■v. Vie, 14 Penn. St. 99. It is a general rule that a sheriff cannot sell personal 
 property on an execution without having first reduced it to his possession and 
 having it present at the sale, within view of the bidders, and ready for actual deliv- 
 ery : Kennedy v. Clayton, 29 Ark. 270; Herod v. Bartley, 15 Ills. 58; Tibbetts -'. 
 Jageman, 58 Ills. 43; Gaskill tj. Aldrich, 41 Ind. 338; Baker v. Casey, 19 Mich. 
 220; Newman 7/. Hook, 37 Mo. 207; Sheldon v. Soper, 14 Johns. (>f.Y.) 352; 
 Blanton v. Morrow, 7 Ired. Eq. (Nor. Car.) 47; McLeod v. Pearce, 2 Hawks 
 (Nor. Car.) 110; Blount v. Mitchell, I Taylor (Nor. Car.) 131; Bennett's 
 Branch Improvement Co.'s Appeal, 65 Penn. St. 242; Collins v. Mont- 
 gomery, 2 Nott & M. (So. Car.) 392; Gift i'. Anderson 5 Humph. (Tenn.) 
 577. And it is not sufficient that bidders have had an opportunity to examine 
 the articles on the day before the sale. The property must be present so as 
 to enable bidders to examine it before it is struck off by the auctioneer: 
 McNeely v. Plart, 8 Ired. Law (Nor. Car.) 492. It is sometimes held that 
 such B. sale is not void, but merely voidable, and is good until set aside by 
 order of the court : Foster v. Mabe, 4 Ala. 402; Hazzard v. Burton, 4 Harr. 
 (Del.) 62; Eads v. Stephens, 63 Mo. 90. And see Rowan v. Refeld, 31 .\.rk. 
 648; Winfield v. Adams, 34 Mich. 437; Slcinner v. Skinner, 4 Ired. Law (Nor. 
 Car.) 175. A receiver's sale of the furniture of a hotel, made in the fair exercise 
 of his discretion, will not be set aside because the furniture was not on view at the 
 time of the sale, but was locked in the rooms of the hotel, if it does not appear 
 
 130 
 
CHAP. VI.] THE SALE. 112* 
 
 consent of the lessor is obtained, where it is intended to hold 
 the sale in a house the lease of which, as is frequently the 
 case with town houses, contains a covenant that the lessee 
 will not permit a sale by auction upon the premises without 
 the consent of the lessor ; for the lessor would probably be 
 able to obtain an injunction against a breach of such cove- 
 nant, and thereby to prevent the sale from being held {b). 
 Whether, in the absence of such a [112] covenant, a landlord 
 who has let a dwelling-house as a dwelling-house can obtain 
 an injunction to restrain the use of the house for the purpose 
 of holding auctions, does not appear to have been decided ; 
 but, under a lease of a shop, back shop and cellar, there is 
 not necessarily [i.e. apart from special agreement) inherent in 
 the subject a prohibition against the use of it for the sale of 
 
 (^) French v. Macale, 2 Dr. & War. waivedbyreceivingrent from the tenant, 
 
 269, 275; [s.c, I Con. & Law. 459;] unless it is rent that has become due 
 
 cf. Lumley v. Wagner, I De G.M. & G. since the forfeiture : Bleecker v. Smith, 
 
 604; 21 L.J. Ch. 898; Joyce on Injunc- 13 Wend. (N.Y.) 530; Jackson i/. Allen, 
 
 tions, 63 el seq. Such a covenant was 3 Cow. (N.Y.) 220 ; Hunter v. Oster- 
 
 held to be broken, and the lease for- houdt, 11 Barb. (N.Y.) 33; Manice v. 
 
 felted, where the lessee gave a bill of Millen, 26 Barb. (N.Y.) 41; Campbell 
 
 sale on his goods, with a power, which v^ McElevey, 2 Disney (Ohio) 574, 583; 
 
 the grantee exercised, to sell by auction and unless the landlord, at the time of 
 
 in default of payment ; although, when receiving the rent, was aware of the 
 
 the auction was actually held, the lessee tenant's breach of condition : Garnhart 
 
 had mortgaged the house by a sub- v. Finney, 40 Mo. 449; Jackson v. 
 
 lease and executed a general assignment Schutz, 18 Johns. (N.Y.) 174; Jackson 
 
 for the benefit of his creditors : Toleman 7/. Brownson, 7 id. 227; Keeler f. Davis, 
 
 w.Portbury, L.R. 7Q.B.344; 41 L.J.Q.B. 5 Duer (N.Y.) 507; Jones v. Roberts, 
 
 98; 26 L.T.N.S. 292; 20 W.R. 441. 3 Hen. & Munf. (Va.) 436.] 
 [And such a forfeiture will not be 
 
 that any one who desired to inspect it before the sale was refused leave to do so : 
 National Bank of Metropolis v. Sprague, 20 N.J. Eq. (5 C. E. Green) 159. An 
 auction sale of stereotype plates was sustained, though they were not in view of 
 the purchasers, on evidence that it was customary to sell such articles without 
 inspection, their value depending upon the salable character of the work they 
 represented, in Bruce v. Westervelt, 2 E.D. Smith (N.Y.) 440. And if part of 
 the property sold upon execution is present and part is not, the sale of that which 
 is present is valid: LinnendoU v. Doe, 14 Johns. (N.Y.) 222. And the assent 
 of the parties in interest will cure the defect as to property which is not present 
 at the sale ; Cook v. Timmons, 67 Ills. 203. One who has given a trust deed of 
 personal property for the payment of a debt cannot contest the title of one who 
 has purchased the property at a public sale by the trustee upon the ground that 
 the property was not present at the sale, if he has himself detained it from the 
 sale : Behee v. DeBaun, 8 Ark. (3 English) 510. The same rule was applied in 
 Huff V. Earl, 3 Ind. 306.] 
 
 131 
 
* 
 
 113 THE SALE. [part I. 
 
 goods occasionally by public auction (c). A parol licence to 
 enter premises for the purpose of selling goods there is revo- 
 cable ; and if a person who has engaged an auctioneer by 
 parol merely to sell goods upon his premises revokes his con- 
 sent to the auctioneer being there, the latter has no right to 
 continue on the premises, although he has incurred ex- 
 penses in allotting and selling the goods, and only wishes 
 to remain for the purpose of delivering the goods to the 
 purchasers (d). 
 
 Goods on Premises of Auctioneer, for Scde, Privileged from 
 Distress. - — ■ If the sale is held on the premises of the auc- 
 tioneer, goods sent there "for the purpose of being sold by 
 auction cannot, while there, be distrained for rent (e), even if 
 the premises consist of a room only hired temporarily for the 
 purpose pf the sale and from a person who had no authority 
 to let it (/). This privilege does not, however, extend to 
 goods on iDremises not in the occupation of the auctioneer ; 
 [113] and, therefore, where, a sale by auction of A.'s goods 
 having been advertised to be held on A.'s premises, B. sent 
 some articles to be sold at the same time, and these were dis- 
 trained during the auction by A.'s landlord, it was held that 
 the distress was valid (£-). 
 
 Where the distress would be lawful, it seems that the auc- 
 tioneer would have the vendor's authority to pay it off before 
 the sale, provided it did not amount to more than the fair 
 
 (c) Keith -'. Reid, L.R. 2 H.L. Sc. Alan & Gr. 650; Wood -: Manley, n 
 
 39. In Moses 'j. Taylor, II W.R. 81, Ad. & El. 34; McLeod v. Jones, 105 
 
 Kindersley, V.-C, is vepovted to have Mass. 403; Dralce t/. Wells, II Allen 
 
 doubted whether holding a mock auc- (M.iss.) 141; McNeal v. Emerson, 15 
 
 tion would be a breach of a covenant Gray (Mass.) 384; Giles v. Simonds, 
 
 not to carry on " any offensive trade." id. 441 ; Nettleton v. Sikes, 8 Met. 
 
 A private house where a sale by auction (Mass.) 34.] 
 
 takes place is " a place of public resort " (e) Adams v. Grane, I C. & M. 3S0 ; 
 
 within the Vagrant Act, 5 Geo. IV. c. 2 L.J. Ex. 105. As to distress gener- 
 
 83, ^. 4 : Sewell '.'. Taylor, 7 C.B.N.S. ally see jios/, Ch. XIV., s. 3. 
 160; 29 L.J.M.C. 50. (/) Brown v. Arundell, 10 C.B. 54; 
 
 (^d) Taplin !>. Florence, 10 C.B. 744; 20 L.J.C.P. 30; Williams v. ?Iolmes, 
 
 20L.J.C.P. 137; I5jur.402. [McMaster 8 Ex. 861; 22 L.J. Ex. 283; cf. Lyons 
 
 v. McPherson, 6 U.C.Q.B. (O.S.) 16. i/.EUiott, i Q.B.D.210, 215; 45 L.J.Q.B. 
 
 But a license to the purchaser of goods 159. Unless, perhaps, in the latter case, 
 
 to enter upon the premises of the ven- the rightful owner had objected ; Brown 
 
 dor for the purpose of removing them f. Arundell, uii supra. 
 is irrevocable : Salter v. WooUams, 2 {£) Lyons v. Elliott, uti supra. 
 
 132 
 
CHAP. VI.] THE SALE. 1 14* 
 
 value of the goods {It}, but that he could not charge the ven- 
 dor with the amount, if the levy took place after the sale [i). 
 
 Auctioneer's Property in G-oods Sold by him. — An auctioneer 
 " has a possession coupled with an interest in goods which he 
 is employed to sell, not a bare custody, like a servant or shop- 
 man " (_/). He can maintain an indictment against any one 
 who steals them {k), and an action against a person who 
 wrongfully removes them out of his possession (/). The 
 responsibility of the auctioneer for goods entrusted to him for 
 sale forms the subject of a separate chapter {in). 
 
 Auctioneer must have his Licence at Sale. — The auctioneer 
 should always have his licence with him at the sale, ready for 
 production upon demand made by the proper authorities ; for, 
 if he is unable to produce it, he may be required to deposit 
 ;^io, and if he fails to make such deposit, the sale may be 
 stopped, and the auctioneer himself taken into custody {n). 
 
 [114] He is also required, under a penalty of ;£20, before 
 commencing a sale, to affix or suspend, in some conspicuous 
 part of the place where the sale is held, and to keep exposed 
 during the sale, a ticket or board with his full christian name, 
 surname and residence painted, printed or written upon it in 
 large letters publicly visible and legible {0). 
 
 He must FoUo'w his Instructions. — The auctioneer being an 
 agent employed to effect the sale of property by competition, 
 his duty is to obtain, by that mode of sale, the best price 
 which such property will fairly fetch ; ^ and he must not sell 
 
 (Ji) Sweeting v. Turner, L.R. 7 Q.B. 35 Md. 396; Leverick v. Meigs, i Cow. 
 
 310, 314; 41 L.J.Q.B. 58. (N.Y.) 64s, 663, 664.] 
 
 (f) After the sale the property would (/•) Viz,, in his capacity of bailee ; 
 
 remain at the risk of the purchaser : iHd. of. Archbold, 354. 
 
 (y) Per Lord Loughborough, in (/) See the cases cited in note {/), 
 Williams v. Millington, i H. Bl. 81,85; supra. Aliter with fixtures to be de- 
 approved /^r Mellor, J., in Woolfe v. tached by the purchaser: Davis v. 
 Home, 2 Q.B.D. 355, 358; 46 L.J.Q.B. Danks, 3 Ex. 435; 18 L.J. Ex. 213. 
 534> 536; and^^;- Fry, J., in Davis v. [Story on Bailments, §§ 93, 152.] 
 Artingstall, 49 L.J. Ch. 609. [Dicken- {in) Post, Ch. XIIL 
 son V. Naul, 4 B. & Ad. 638; Grice v. (it) Cf. ante, p. 18. 
 Kenrick, L.R. 5 Q.B. 340. See Groover (0) 8 & 9 Vict. c. 15, s. 7; see Ap- 
 ■u. Warfield, 50 Ga. 644 ; Miller v. Lea, pendix, post, p. 389. 
 
 [' Where the assignee of a mortgage himself acted as auctioneer at a sale of 
 the i>remises under the mortgage, and seeing a purchaser from the mortgagor 
 
 133 
 
* 
 
 1 14 THE SALE. [part I. 
 
 for a less price or in a different manner than may be specified 
 in his instructions. Where he has no instructions, he must 
 pursue the accustomed course of his business (/). 
 
 His Duty Personal. — Moreover, he must, in general, effect 
 the sale himself {q) ; although, perhaps, he may employ his 
 clerk to use the hammer and make the outcry, provided this 
 be done under his own immediate direction and supervision (r), 
 or even, under special circumstances, to write down the name 
 of the purchaser {s). 
 
 Conduct of Sale. — The usual mode of conducting the dif- 
 ferent kinds of sales by auction has been already described (/). 
 In ordinary cases, the auctioneer has the right to prescribe 
 
 (/) Cf. anfe, pp. 24, 35. [A sale so; but the auctioneer might be liable 
 
 of land in partition proceedings was to his employer in an action for negli- 
 
 set aside, it having been made for a gence, although the sale was not void, 
 grossly inadequate price, and when the (j) See posi, pp. 154 et seq. It is a 
 
 yellow fever prevailed at adjoiningplaces, common practice for auctioneers to" en- 
 
 and the parties were prevented by a trust their less important sales, at any 
 
 quarantine from attending : Kirkland v. rate of goods, wholly to their clerks. 
 Texas Express Co., 57 Miss. 316.] (/) Ante, pp. 2 et seq. [An action 
 
 (^) Cf. ante, p. 29. [Poree v. Bon- on the case lies for the disturbance of a 
 
 neval, 6 La. Ann. 386; Commonwealth sale by auction : Furness v. Anderson, 
 
 V. Harnden, 19 Pick. (Mass.) 482; i Pa. Law Jour. 324. In Like v. Mc- 
 
 Stone V. State, 12 Mo. 400; Lausatt v. Kinstry, 3 Abbott App. Dec. (X.Y.) 62, 
 
 Lippincott, 6 Serg. & R. (Penn.) 386.] it was held that one who warned pur- 
 
 (;') Commonwealth v. Harnden, 19 chasers at an auction sale that he claimed 
 
 Pickering, 482; .Story, Con. § 328. Mr. title to the thing sold, when in truth he 
 
 Story, referring to the above case, which had none, could not be taken to have 
 
 was decided in 1851 [1837] in the acted maliciously if in so doing he acted 
 
 Supreme Court of Massachusetts, goes under the advice of counsel, to whom 
 
 on to say that the auctioneer is not bound he had disclosed all the material facts; 
 
 in all cases to become the orator on but a finding of malice would be sus- 
 
 the occasion of the sale, and that tained if there was some evidence that 
 
 his occasional absence from the room he knew he had no title, and if he had 
 
 will not invalidate the sale. This [was not truthfully disclosed all the facts to the 
 
 held in the above cited case; it] may be counsel to whom he applied for advice.] 
 
 approaching while the sale was going on, immediately knocked do«'n the premises 
 to his own brother for half the sum due upon the mortgage, in order to avoid 
 competition, it was held that this sale passed no litle to the purchaser, in Jackson 
 1. Crafts, 18 Johns. (NA',) no. So a trustee or public officer appointed to sell 
 to the highest bidder is bound to see that the sale is fairly made and that there is 
 a real competition: Fairfax v. Hopkins, 2 Cranch C.C. 134; Johnston t*. Eason, 
 3 Ired. Eq. (Nor. Car.) 330. Otherwise his sale, if not void, will be at least void- 
 able : Myers v. Sanders, 7 Dana (Ky.) 506. And see Plarrell v. Word, 54 Ga. 
 649; Vanscoyoc v. Kimler, 77 Ills. 151. If there is reason to believe that there 
 has been fraud or mistake in a judicial sale, to the injury of the owner or of the 
 purchaser, or if the officer conducting the sale has been guilty of any fraud or 
 
 134 
 
CHAP. VI. J THE SALE. 1 1 5* 
 
 the rules of bidding^ and the terms of sale, provided he does 
 not contravene the written particulars and conditions, if there 
 are [115] any {tc). The particulars, or catalogue, and condi- 
 tions, when there are any, should be circulated in the sale- 
 room before the commencement of the sale (v) and publicly 
 exposed to view on a board or paper attached to the auc- 
 tioneer's desk or the walls of the room, so that the public 
 may know on what terms they bid and be fixed with notice 
 of their contents {iv). After stating, or referring to, the par- 
 ticulars, saying, when such is the fact, that the sale is without 
 reserve {x), and declaring, if necessary, or alluding to, the 
 conditions {y), the auctioneer should read out, or give the 
 substance of, any document announced to be read at the sale. 
 If any error or omission has been discovered in the particu- 
 lars, or catalogue, or conditions, since their first publication, 
 the same should be carefully rectified, and pains taken that 
 only corrected copies are distributed in the sale-room. The 
 auctioneer should also verbally refer to the alterations that 
 have been made, and draw the attention of those present to 
 them ; and he should clearly explain any ambiguity that there 
 may be (s). 
 
 If it is no longer intended to put up any lots that have 
 been advertised for sale, the fact should be announced as soon 
 as possible, although the auctioneer is not liable for with- 
 drawing them without notice, if he has acted bo7id fide (a). 
 
 (a) Stoiy, Con. § 321; Ag. § 107; (jj/) See ante, pp. 88, 89. 
 Paley, P. & A. 362; and cf. ante, p. 25. {z) Ante, p. 56. It cannot be too 
 [As to the auctioneer's authority to constantly borne in mind that, where 
 retract a warranty contained in the there is a written contract, all alterations 
 printed catalogue of an auction sale, should be reduced into writing and em- 
 see Craig V. Miller, 22 U.C.C.P. 648.] bodied in it before signature. 
 
 {v) Cf. ante, p. 88. {a) Harris v. Nickerson, L.R. 8 Q.B. 
 
 (?c<) Mesnard v. Aldridge, 3 Esp. 286; 42 L.J.Q.B. 171 ; 21 W.R. 636; 
 
 271; Bywater I'. Richardson, I A. & E. 28 L.T.N.S. 410. But if he make a 
 
 508; 3 N. & M. 748. representation that certain property will 
 
 {x) Qi. post, p. 126. be sold, knowing at the time that it will 
 
 breach of trust to the injury of the parties, the sale may be set aside : Brock v. 
 Rice, 27 Gratt. (Va.) 812. And see Pope v. Davenport, 53 Texas, 206.] 
 
 [' In New Jersey, if a bid is fairly claimed by two or more persons, it is the 
 custom to put up the property again at the price bid, as the bid of such person as 
 the auctioneer may declare entitled to it: Conover v. Walling, 15 N.J. Eq. (2 
 McC.) 173. See McMasters v. Commissioners, I La. Ann. 11.] 
 
 135 
 
'ii6 
 
 THE SALE. 
 
 [part I. 
 
 And when the property to be sold has been [116] advertised 
 as belonging to a certain person, and the property of another 
 is sent in to be sold along with it, the auctioneer ought to 
 mention the fact, if the ownership may influence the sale {b). 
 It may amount to a misrepresentation on his part to sell 
 goods as belonging to A., which he knows to belong to B. {c). 
 
 Before calling upon the company for their biddings, the 
 auctioneer usually expatiates upon any particular feature in 
 the property which he considers deserving of their considera- 
 tion. Although in this stage of the proceedings a certain 
 degree of latitiide is allowed to the auctioneer, he must take 
 care that what he intends as mere commendation does not 
 amount to a warranty or a misrepresentation of fact. 
 
 ■Warranty, what Amounts to. — " An affirmation at the time 
 of sale is a warranty, provided it appear on evidence to have 
 been so intended " (d). If the auctioneer, or his employer 
 
 be withdrawn, he will be liable to com- 
 pensate an intending purchaser who has 
 acted on the faith of the representation : 
 Mainprice v. Westley, 6 B. & S. 421 ; 
 34L.J.Q.B.229; 14W.R.9; 13L.T.N.S. 
 560; Richardson v. Silvester, L.R. 9 
 Q.B. 34; 43 L.J.Q.B. I. [As to the 
 authority generally allowed to a sherilf 
 or public officer or commissioner of 
 court to adjourn his sale, see Blossom v. 
 R.R. Co., 3 Wallace, 196, 209 ; Richards 
 V. Holmes, iSHoward, 143, 147; United 
 States V. Drennen, Hempstead, 320; 
 Perkins v. Proud, 62 Ga. 420; Brown v. 
 Redwyne, 1 6 Ga. 67 ; Phelps z'. Conover, 
 25 Ills. 309 ; Payne v. Billingham, 10 
 Iowa, 360; Swortzell v. Martin, 16 Iowa, 
 519; Montgomery I/. Barrow, 19 La. Ann. 
 169; Russell !<. Richards, 11 Maine, 371 ; 
 Farmers' Banl< v. Clarke, 28 Md. 145 ; 
 Thayer v. Felt, 4 Pick. (Mass.) 354 ; 
 Warren v. Leland, 9 Mass. 265 ; Ladd 
 V. Shippie, 57 Mo. 523 ; Enloe v. Miles, 
 
 12 Sm, & M. (Miss.) 147; Conway v. 
 Nolte, II Mo. 74; Collier v. Whipple, 
 
 13 Wend. (N.Y.) 224, 229 ; Tinkom v. 
 Purdy, 5 Johns. (N.Y.) 345; Lantz v. 
 Worthington, 4 Penn. St. 153; Miller 
 V. Law, 10 Rich. Eq. (So. Car.) 320; 
 Wade V. Saunders, 70 Nor. Car. 270; 
 
 Doe V. Bradley, 3 Hawks (Nor. Car.) 
 16. But the officer must himself make 
 the adjournment, not through the credi- 
 tor's attorney : Wolf v. Van Metre, 27 
 Iowa, 348.] 
 
 (i5) Bexwell j. Christie, i Cowp. 
 395, 397; Hill v. Gray, i Stark, 434. 
 
 (f) Coppin V. Craig, 7 Taunt. 243. 
 
 ((/) Per Buller, J., in Pasley v. 
 Freeman, 3 T.R. 51, 57; 2 Sm. L.C. 
 64, 72; cf. Bannerman v. White, 10 
 C.B.N.S. 844; 31 L.J.C.P. 28. [See 
 Ricks V. Dillahunty, 8 Porter (Ala.) 
 134; Byrne ;'. Jansen, 50 Calif. 624; 
 Polhemus v. Heiman, 45 Calif. 573; 
 O'Neal u. Bacon, i Houst. (Del.) 215; 
 Sparling v. Marks, 86 Ills. 125; Kenner 
 V. Harding, 85 Ills. 264; Robinson v. 
 Harvey, 82 Ills. 58; Thorne v. Mc- 
 Veagh, 75 Ills. 81; Reed u. Hastings, 
 61 Ills. 266; Humphreys v. Comline, 8 
 Blackf. (Ind.) 516; House v. Fort, 4 
 id. 293; Clark v. Ralls, 50 Iowa, 275; 
 Randall v. Thornton, 43 Maine, 226; 
 Bryant v. Crosby, 40 Alaine, 9, 18; Hill- 
 man V. Wilcox, 30 Maine, 170; Horn v. 
 Buck, 48 Md. 358; Osgood v. Lewis, 
 2 Har. & G. (Md.) 495; Otts v. Alder- 
 son, 10 Sm. & M. (Miss.) 476; Ander- 
 son V. Burnett, 5 How. (Miss.) 165; 
 
 136 
 
CHAP. VI.J 
 
 THE SALE. 
 
 117* 
 
 through him, " expressly states upon a sale that he gives no 
 warranty, and that the goods sold must be taken with all 
 faults, but goes on expressly to say, in addition to that, that, 
 so far as he knows, or believes, or has reason to believe, the 
 goods are free from any particular fault . . . and it can after- 
 wards be proved that to his knowledge the goods are not free 
 from fault, then, notwithstanding the negation of warranty, 
 an action would lie [117] against him for deceit " {e) ; or even, 
 it would seem, for a qualified warranty. Where the defend- 
 ant, in answer to a question by the plaintiff, said that a mare 
 was sound to the best of his knowledge, but, on being asked 
 for a warranty, refused to give one, saying : " I never war- 
 rant, I would not even warrant myself," and it was proved 
 that he knew that the mare was unsound, this was held to be 
 a qualified warranty that the mare was sound to the best of 
 his knowledge (/). And apparently a similar result would 
 follow, if a statement' were made recklessly and without rea- 
 sonable ground for believing it to be true {g). 
 
 Kinley u. Fitzpatrick, 4 id. 59 ; Carter 
 V, Black, 46 Mo. 384; Murphy v. Gay, 
 37 Mo. 535; Stroud v. Pierce, 6 Allen 
 (Mass.) 413; Henshaw v. Robbins, 9 
 Met. (Mass.) 83, 87, 88; Patrick v. 
 Leach, 8 Nebraska, 530 ; Little v. 
 Woodworth, id. 281 ; Morrill v. Wallace, 
 9 N.H. 1 1 1 ; Wolcott, I Mount, 36 N.J.L. 
 (7 Vroom) 262; Hawkins v. Pember- 
 ton, 51 N.Y. 198; Morgan v. Powers, 
 66 Barb. (N.Y.) 35; Brown v. Tuttle, 
 id. 169; Lawton v. Keil, 61 Barb. 
 (N.Y.) 558; Wilbur v. Cartwright, 44 
 id. 536; Rogers v. Akerman, 22 id. 
 J34; Greenthal u. Schneider, 52 How. 
 Pr. (N.Y.) 133; Roberts v. Morgan, 
 
 2 Cow. (N.Y.) 438; Cook V. Moseley, 
 13 Wend. (N.Y.) 277; Whitney v. Sut- 
 ton, 10 id. 41 1; Chapman v. Murch, 19 
 Johns. (N.Y.) 290; Murray v. Smith, 
 4 Daly (N.Y.) 277; Henson v. King, 
 
 3 Jones Law (Nor. Car.) 419; Warren 
 V. Philadelphia Coal Co., 83 Penn. St. 
 437; Weimer v. Clement, 37 Penn. St. 
 147; McFarland u. Newman, 9 Watts 
 (Penn.) 55; Fisher v. Budlong, 10 R.I. 
 525; Bryce v. Parker, n So. Car. 337; 
 
 McGregor v. Penn, 9 Yerger (Tenn.) 
 74; Blythe v. Speake, 23 Texas, 429; 
 Bond V. Clark, 35 Vt. 577; Beals v. 01m- 
 stead, 24 Vt. 114; Beeman u. Buck, 
 3 Vt. 53; Hahn v. Doolittle, 18 Wise. 
 196.] And such a representation is a 
 warranty, if made during the treaty for 
 a sale, provided it be not subsequently 
 withdrawn, or expressly excluded by 
 the terms of the contract of sale : Broom, 
 C.L. 344. 
 
 {/) Per Lord Cairns, L.C., in Ward 
 V. Hobbs, 4 App. Cas. 13, 20 ; 48 
 L.J.Q.B. 281, 284. Cf. ante, p. 60. 
 [And see Harris v. MuUins, 32 Ga. 704; 
 Whitney z/.Boardman, 1 1 8 Mass. 242, 247, 
 248; Hanson v. Edgerly, 29 NiH. 343; 
 Taylor v. Fleet, 4 Barb. (N.Y.) 95; 
 Pearce v. Blackwell, 1 2 Ired. Law (Nor. 
 Car.) 49.] 
 
 (/) Wood u. Smith, 4 C. & P. 45; 
 
 5 Man. & R. 124; [Cook t'.Moseley, 13 
 Wend. (N.Y.) 277; Roberts t*. Morgan, 
 2 Cow. (N.Y.) 438; Carley v. Wilkins, 
 
 6 Barb. (N.Y.) 557.] 
 
 {£) Reese River Silver Mining Co. v. 
 Smith, L.R. 4 H.L. 64, 79; Pulsford v. 
 
 137 
 
'117 
 
 THE SALE. 
 
 [part I. 
 
 But the representation must form part of the contract of 
 sale and not be a mere expression of opinion made antece- 
 dently to the sale, as an inducement to buy. Where the 
 defendant, whose horse was at an auction-stable for sale, see- 
 ing the plaintiff examining the horse, told him, bond fide, that 
 it was "sound in every respect," and, the horse being put up 
 for sale without a warranty on the following day, the plaintiff 
 became the purchaser, it was held that what was said before 
 the sale was not a warranty, but a mere representation, for 
 which, although contrary to the fact, the defendant was not 
 liable, unless it was fraudulently made {li). Nor will mere 
 passive acquiescence in the self-deception of the buyer be suf- 
 ficient, in the absence of fraudulent concealment, to avoid the 
 contract (i). 
 
 Richards, 17 Beav. 87, 94 ; Rawlins v. 
 Wickham, 3 De G. & J. 304, 316; Evans 
 V. Edmonds, 13 C.B. 777, 786; Att.- 
 Gen. V. Ray, L.R. 9 Cli. 397, 405; 43 
 L.J. Ch. 478. [" If the representation 
 is not a mere expression of opinion, but 
 the affirmation of a fact, it is not material 
 whether the vendor knew or had the 
 means of knowing it to be untrue, or 
 that he made it in ignorance of the facts. 
 The affirmation of that which he does 
 not know to be true produces the same 
 injury, and is as indefensible, ... as the 
 assertion of what he knows to be false " : 
 Brickell, J., in Sledge v. Scott, 56 Ala. 
 202. See Denny v. Gilman, 26 Maine, 
 149; Paddock-'. Strobridge, 29 Vt. 470.] 
 
 (/i) Hopkins v. Tanqueray, 15 C.C. 
 130; 23 L.J.C.P. 162; cf. Stucley v. 
 Bailey; i II. & C. 405, 416; 31 L.J. Ex. 
 483. As to the meaning of the term 
 " soundness," see anic, p. 59. [Towell 
 V. Gatewood, 2 Scammon (Ills.) 22; 
 Baird -J. JIatthews, 6 Dana (Ky.) 129; 
 Burdit V. Burdit, 2 A. K. Marsh. (Ky.) 
 143; WiUard V. Stevens, 24 N.M. 271; 
 Morrill 'o. Bemis, 37 Vt. 155; Wason v. 
 Rowe, 16 Vt. 525 ; Ivetchum v. Wells, 
 19 Wise. 25.] 
 
 (0 Hill r. Balls, 2 H. & N. 299; 27 
 L.J. Ex. 45; Smith v. Hughes, L.R. 6 
 Q.B. 597; 40 L.J.Q.B. 221; Ward v. 
 Hobljs, 4 App. Gas. 13; 48 L.J.Q.B. 
 
 281. [The omission of the vendor to 
 disclose material facts to the purchaser 
 is not sufficient to render the vendor 
 liable for practising fraud or deceit upon 
 the purchaser. There must also be a 
 concealment, accompanied by an inten- 
 tion to deceive : Laidlaw -u. Organ, 2 
 Wheaton, 178; Stephens v. Orman, 10 
 Fla. 9; Cogel v. Kniseley, 89 Ills. 598; 
 Morris v. Thompson, '^-^ Ills. 16; Fort 
 K. Williams, 6 Ind. 219; French I'.Vining, 
 102 Mass. 132, 135; Hanson v. Edgerly, 
 29N.H. 343; Stevens v. Fuller, S X.II. 
 463; Howell V. Biddlecom, 62 Barb. 
 (N.V.) 131 ; Lytle v. Bird, 3 Jones 
 Law (Nor. Car.) 222; Harris W.Tyson, 
 24 Penn. St. 347; Kintzing v. ^IcElrath, 
 5 Penn. St. 467; Howard v. Gould, 28 
 Vt. 523. But " deceit may sometimes 
 take a negative form; and there may be 
 cases in wliich silence would have all 
 the legal characteristics of actual mis- 
 representation.'' Ames, J., in French v. 
 Vining, 102 !Mass. 135. These are cases 
 of the concealment of a material fact 
 which the vendor was under a duty to com- 
 municate, or where any device has been 
 used to induce the forbearance of in- 
 quiry. See Smith v. Richards, 13 Peters, 
 26; Van Arsdale v. Howard, 5 Ala. 
 596; Roseman v. Canovan, 43 Calif, 
 no; Otis V. Raymond, 3 Conn. 413; 
 Roper V. Sangamon Lodge, 91 Ills. 
 
 38 
 
CHAP. VI.] THE SALE. II8-II9* 
 
 [118] When the contract has been reduced into writing, 
 the existence of the warranty cannot be proved by oral evi- 
 dence ; but the purchaser can adduce such evidence to show 
 that the vendor fraudulently obtained his consent to the bar- 
 gain by means of a representation which was false to the 
 latter's knowledge (J). 
 
 On a sale of goods which the buyer has no opportunity of 
 inspecting, there is an implied warranty that the goods 
 answer the description given of them, and that they are mer- 
 chantable under that description, the maxim caveat emptor 
 not applying in such a case {k). And on a sale by sample, 
 there is an implied warranty that the sample is fairly taken 
 from the bulk of the commodity ; but not that the bulk is, at 
 the time the sample is exhibited, of the same quality and de- 
 scription as the sample (/). And, in some cases, a warranty 
 of the vendor's title to the goods sold will be implied (;«). 
 
 Merchandise Marks. — By 25 & 26 Vict. C. 88, SS. I9 and 
 20, the vendor of an article bearing a trade-mark, or a de- 
 scription of its number, quantity, measure or weight, or a 
 designation of the place where it has been made, is to be 
 deemed to contract with the purchaser that the trade-mark is 
 genuine, or that the description or designation is true. And 
 s. 18 of 29 Vict. c. 37, enacts that every person selling hops 
 in any bag or [119] pocket marked with any name, &c., in- 
 tended to indicate the name of the person by whom, or the 
 
 518; Emmons v. Moore, 85 Ills. 304; Bacon v. Frisbie, 15 Hun. (N.Y.) 26.] 
 Atwood V. Chapman, 68 Maine, 38 ; (JS) Add. Con. 493; Jones v. Just, 
 
 Prentiss v. Russ, 16 Maine, 30; Sides v, L.R. 3 Q.B. 197; 37 L.J.Q.B. 89; Mody 
 
 Hilleary, 6 Harr. & J. (Md.) 86; Cod- -v. Gregson, L.R. 4 Ex. 49; 38 L.j. Ex. 
 
 dington if. Goddard, .16 Gray (Mass.) 12. On the sale of an article for a spe- 
 
 436; Matthews w. Bliss, 22 Pick. (Mass.) cific purpose there is a warranty by the 
 
 48 ; Brown v. Montgomery, 20 N.Y. vendor that it is reasonably fit for the 
 
 287; March -v. Mobile Bank, 4 Hun. purpose, and there is no exception as to 
 
 (N.Y.). 466; Nickley v. Thomas, 22 latent undiscoverable defects: Randall 
 
 Barb. (N.Y.) 652; Maynardz». Maynard, z<. Newson, 2 Q.B.D. 102; 46 L.J.Q.B. 
 
 49 Vt. 297.] 259; Hyman v. Nye, 6 Q.B.D. 685. 
 
 (/) Add. Con. 495, 500. [Campbell (/) Add. Con. 495; Sayers i<. Lon- 
 
 u. Frankem, 65 Ind. 591 ; Carmichael don and Birmingham Flint, Glass and 
 
 V. Vandebur, 50 Iowa, 651; High v. Alkali Co., 27 L.J. Ex. 294; [See Ben- 
 
 Kistner, 44 Iowa, 79; Nowlin v. Snow, jamin on Sales, 3d Am. Ed., § 648, et 
 
 40 Mich. 699; Estell v. Myers, 54 Miss, seq., and American notes.] 
 174; Savage I/. Stevens, 126 Mass. 207; {m) See/oi/, p. 193. 
 
 139 
 
119 
 
 THE SALE. 
 
 [part I. 
 
 place where, or the year when, such hops were grown, shall 
 be deemed to contract that the description &c. were genuine 
 and true and in accordance with the act and with 48 Geo. III. 
 c. 134, and 54 Geo. III. c. 123. 
 
 It has not been expressly decided whether an auctioneer 
 has an implied authority to warrant goods which he is in- 
 structed to sell ; but it is thought that, if it is the general 
 practice in his employer's business to warrant the articles 
 sold, an authority will be implied in the auctioneer to warrant 
 such articles, but not otherwise {71). 
 
 If, in selling goods, the auctioneer warrants them to be of 
 a certain quality or species, and does not disclose the name 
 of his principal, he will be personally liable on the warranty ; 
 but if he does disclose the name of his principal, and acts 
 within his authority, he will not be liable {0). 
 
 The Biddings. — The lots, if the sale is in lots, are put up in 
 succession, and the biddings, once commenced, are continued 
 
 (b) Alexander v. Gibson, 2 Camp. 
 555; Sandilands v. Marsh, 2 B. & 
 Aid. 673, 679; Dingle v. Hare, 7 
 C.B.N.S. 29; 6 Jur. N.S. 179; How- 
 ard V. Sheward, L.R. 2 C.P. I4S; 36 
 L.J.C.P. 42 (M'here it was held that 
 the servant of a horse-dealer had an im- 
 plied authority to warrant, even though 
 he had, unknown to the purchaser, re- 
 ceived orders not to warrant ; but the 
 servant of a private person, employed 
 on one particular occasion to sell a 
 horse, has no implied authority to war- 
 rant : Brady v. Tod, 9 C.B.N.S. 592; 30 
 L.J.C.P. 223) ; Brett v. Clowser, 3 
 C.P.D. 376, 3S6; Add. Con. 503. See 
 also postscript, /oi/, p. 130; and Bank 
 of Scotland v. Watson, i Dow, 40, 45. 
 [Though the general rule is that the 
 principal is bound by a warranty given 
 by his agent in selling within the line 
 of the agent's business: Skinner v. 
 Gunn, 9 Porter (Ala.) 305; Bradford 
 V. Bush, 10 Ala. 386; Croom v, Shaw, 
 I Florida, 211; Marckle v. Haskins, 27 
 Ills. 382; Murray v. Brooks, 41 Iowa, 
 45 ; Applegate v. Moffit, 60 Ind. 104; 
 Randall v. Kehlor, Co Maine, 37; Bry- 
 ant V. Moore, 26 Maine, 84, 87; Palmer 
 
 V. Hatch, 46 JIo. 585; Nelson v. Cow- 
 ing, 6 Hill (N.Y.) 336; Sandford v. 
 Plandy, 23 Wend. (N.Y.) 260; Churchill 
 V. Palmer, 115 Mass. 310; Hunter v. 
 Jameson, 6 Ired. Law (Nor. Car.) 252; 
 Williamson v. Canaday, 3 id. 349 ; Fay 
 V. Richmond, 43 Vt. 25 ; Ezell v. Frank- 
 lin, 2 Sneed (Tenn.) 236; Boothby v. 
 Scales, 27 Wise. 626; yet an auctioneer 
 has not implied authority to bind his 
 employer without proof of an established 
 usage of trade for that purpose. The 
 Monte Allegro, 9 Wheaton, 616, 645, 
 647; Bigelow, J., in Blood v. French, 9 
 Gray (Mass.) 197, 198; Dodd v. Far- 
 low, II Allen (Mass.) 426; Bashore zi. 
 Whistler, 3 Watts (Penn.) 490; Yates 
 V. Bond, 2 McCord (So. Car.) 3S2.] 
 
 (0) Story, Con. § 333. In the first 
 instance he can recover from his princi- 
 pal, if he has not e.xceeded his autliority, 
 or if his principal has ratified his act, 
 and there has been no fraud on his 
 part : Adamson v. Jarvis, 4 Eing. 65, 
 72; 12 Moo. C.P. 241. [An auctioneer 
 who does not disclose the name of Ms 
 principal may himself be held as ven- 
 dor: Mills V. Hunt, 20 Wend. (N.Y.) 
 43I-] 
 
 140 
 
CHAP. VI.J THE SALE. 
 
 I20' 
 
 as long as any person will increase upon the previous bid- 
 ding.i The biddings need not be byword of mouth (/). As 
 a [120] general rule, the names of the bidders are not re- 
 corded, except where, from the importance of the transaction, 
 or for some other reason {q), formality is required, when the 
 auctioneer writes down the biddings as they occur, with the 
 names of the respective bidders. The vendor may bid, by 
 himself or his agent or agents, to the extent to which he has 
 expressly reserved the right to do so ; but, to render a sale 
 binding on the purchaser, the biddings must be obtained 
 without fraud, and not by means of puffers, by-bidders, white- 
 bonnets or decoy ducks employed for the purpose of unduly 
 enhancing the value, under a secret understanding that they 
 shall not be bound by their bids (r). Duress is, of course, 
 unlawful ; and not only may money paid under fear of vio- 
 lence or illegal detention be recovered back {s), but a person 
 
 (/) R-z;. Taylor, McCIe. 362; Price, or some modification of it, might with 
 
 636, sub nom. Att.-Gen. v. Taylor. See advantage be more generally adopted. 
 
 ante, p. 9. [At a sale of property by (/■) Story, Con. § 337; cf. fast, 
 
 sealed proposals, a bid offering in terms Chap. VII. But if neither vendor nor 
 
 " five hundred dollars more than the auctioneer authorizes sham bids, they 
 
 highest bid," but not specifying any are not liable, the purchaser's remedy 
 
 sum, cannot be treated as a valid bid, being against the party making them : 
 
 as the effect of such a bid would give Story, Con. § 338. [But the purchaser 
 
 to the party making it an undue advan- may be relieved against the fraud of 
 
 tage over the others : Webster z'. French, the auctioneer enhancing the price of 
 
 II Ills. 254.] the property, though not participated in 
 
 (?) ^'S'' when the sale is under a by the vendor : Veazie v. Williams, 8 
 
 decree, every bidder is required to sign Howard, 1 34.] 
 
 his name, and the sum he offers, on an (j) Notes to Marriott v, Hampton, 
 
 official bidding paper: see post, p. 368. 2 Sm. L.C. 405, 413. 
 Mr. Rouse has suggested that this plan, 
 
 [' A sale of land by commissioners under a decree in chancery will not be set 
 aside because, after the land had been cried for a considerable time, they pro- 
 claimed that the time for further bidding would be limited to fifteen minutes, which 
 limitation was several times extended, so that the only effect must have been to 
 quicken the biddings; nor because the day upon which the sale took place was 
 cloudy and occasionally rainy, it not appearing that any person who would have 
 bid was prevented from attending, but a considerable number being present, in- 
 cluding five bidders; nor because the bidders generally thought that the land was 
 cried rather precipitately and without due notice, it having been more than once 
 announced by the crier that the property was about to be struck off, and the com- 
 missioners having given notice to the same effect by directing the crier not to 
 dwell, and about three minutes having elapsed since the last bid before the prop- 
 perty was struck off: Fairfax v. Muse, 4 Munf. (Va.) 124.] 
 
 141 
 
*I2I THE SALE. [PART I. 
 
 obtaining money by means of threats may be convicted of 
 larceny (t). And if an auctioneer conspire with his principal 
 to practise a fraud upon the bidders, he will have no remedy 
 against him for any damages he may have had to pay to a 
 party defrauded {71). 
 
 On the other hand, there must be no unfairness on the 
 part of the bidders.^ In one case the Court refused specific 
 performance to a purchaser on the ground that he had de- 
 terred bidders by employing a known agent of the vendor to 
 bid for him {v). And, indeed, where upon a sale by auction 
 [121] the purchaser had induced the vendor to think that he 
 should not bid, and so put him off his guard, and the estate 
 was knocked down to him, owing to a misapprehension on 
 the part of the person employed to make the reserved bid- 
 ding, the Court refused to enforce the contract at his suit {w). 
 And it seems that a purchaser who bids for goods without 
 intending to pay for them is guilty of a fraudulent misrepre- 
 sentation which would avoid the contract {x). It is, in gen- 
 eral, considered unfair for any one wilfully to interfere so as 
 to prevent others from freely joining in the competition, or 
 wilfully to use means whereby the result of the sale is turned 
 to the disadvantage of the seller.^ Where a bidder at an 
 
 (/) Reg. V. McGrath, L.R. i C.C.R. {x) Ex parte Whitaker, L.R. lo 
 
 205; 39 L.J.M.C. 7; and see Archbold, Ch. 446, 449; 44 L.J. Ch. 91, 92; where 
 
 pp. 374, 453. it was held that the mere fact that a 
 
 {21) Mcrryweather v. Nixan, 8 T.R. person bought goods at an auction, after 
 
 186; 2 Sm. L.C. 527. having been served with a petition on 
 
 {y) Twining v. Morrice, 2 Bro. Ch. which he was subsequently adjudicated 
 326 J approved in Downes v. Graze- a bankrupt, did not amount to a mis- 
 brook, 3 Mer. 200, 209. [WiUan v. representation so as to avoid the con- 
 WiUan, 16 Vesey, 72; Magrane v. tract and entitle the vendor to a return 
 Archbold, i Dow, 107.] of the goods. 
 
 (it') Mason v. Armitage, 13 Ves. 25. 
 
 [' A judicial sale at which land worth at least forty dollars per acre was sold 
 for twenty-six dollars per acre, there being a misunderstanding whether or not 
 the growing crop was included in the sale, and the auctioneer having either bid 
 himself or received sham bids, was set aside in Hilleary v. Thompson, II W. Va. 
 113. And an intention lo defraud creditors of the vendor will vitiate a public as 
 well as a private sale : Ansley v. Carlos, 9 Ala. 973; Duncan v. Forsyth, 3 Dana 
 (Ky.) 229; Brodiet'. Seagraves, I Taylor (Nor. Car.) 144. The fraudulent grantee 
 of a judgment-debtor cannot complain of the inadequacy, arising mainly from his 
 own fault or misconduct, of the price for which the land was sold on the e:;ccution : 
 Daniel v. McIIenry, 4 Bush (Ky.) 277.] 
 
 [- Contracts between intending bidders which are designed to stifle competi- 
 
 142 
 
CHAP. VI. J THE SALE. 121* 
 
 auction-sale of a barge taken under an execution stated to the 
 company present that he had a claim against, and had been 
 badly used by, the late owner of the barge, in consequence of 
 
 tion at a sale by auction, as by an agreement not to bid against each other but 
 that one shall purchase below the fair market value for the benefit of all, are 
 void at law, and will not be enforced by a court : Cocks v. Izard, 7 Wallace, 559; 
 Piatt E". Oliver, I McLean C.C. 295; Haynes w. Crutchfield, 7 Ala. 189; Jenkins 
 V. Frink, 30 Calif. 586; Loyd v. Malone, 23 Ills. 43; Easton v. Mawkinney, 37 
 Iowa, 601 ; Gardiner v. Morse, 25 Maine, 140; Pike v. Balch, 38 Maine, 302 ; 
 Phippen v. Stickney, 3 Met. (Mass.) 384, 387, 388 ; Hook v. Turner, 22 Mo. 333 ; 
 Newman v. Meek, I Preem. Ch. (Miss.) 441 ; Miltenberger v. Morrison, 39 Mo. 
 71; Wooton V. Hinkle, 20 Mo. 290; Gulick v. Ward, 5 Halst. (N.J.) 87; Troup 
 V. Wood, 4 Johns. Ch. (N.Y.) 228, 254; Jones v. Caswell, 3 Johns. Cas. (N.Y.) 
 29; Doolin JJ. Ward, 6 Johns. (N.Y.) 194; Wilbur z<. How, 8 id. 444 ; Thompson 
 V. Davies, 13 id. 112; Trust v. Delaplaine, 3 E. D. Smith (N.Y.) 219; Ingram v. 
 Ingram, 4 Jones Law (Nor. Car.) 188; Dudley v. Little, 2 Hammond (Ohio) 
 504; Slingluff I'. Eckel, 24 Penn. St. 472; Dick v. Lindsay, 2 Grant (Pa. Cas.) 
 431 ; Fenner v. Tucker, 6 R.I. 551 ; Johnston v. La Motte, 6 Rich. Eq. (So. Car.) 
 347; Hamilton v. Hamilton, 2 id. 355 ; Martin v. Ranlett, 5 Rich. Law (So. Car.) 
 541; Woods V. Hudson, 5 Munf. (Va.) 423; Hudson v. LIudson, id. 180. But 
 though a sale may be avoided on proof that it has been made to one in behalf 
 of an association of bidders designed to stifle competition and thus to obtain the 
 property for less than its value, yet this will not be applied if the agreement was 
 fairly made, for honest and just purposes, as where each of the parties desires to 
 obtain a part only of the property offered for sale, or if the union has been formed 
 on account of the magnitude of the sale: Kearney v. Taylor, 15 Howard, 494 ; 
 Gardiner v. Morse, 25 Maine, 140; Phippen v. Stickney, 2 Met. (Mass.) 384 ; 
 Bellows V. Russell, 20 N.H. 427; Wolfe v. Luyster, i Hall (N.Y.) 146; National 
 Bank of Metropolis v. Sprague, 20 N.J. Eq. 159; Smith v. Greenlee, 2 Dev. Law 
 (Nor. Car.) 126; Bradley v. Kingsley, 43 N.Y. 534; Jenkins v. Hogg, 2 Treadw. 
 Const. (So. Car.) 821. And see Slater v. Maxwell, 6 Wallace,' 268; Wicker v. Hop- 
 pock, id. 94; Kearney J/. Taylor, 15 Howard, 519-521; KrophoUerz/. Minneapolis 
 R.R. Co., I McCrary C.C. 299; Switzer v. Skiles, 3 Gilman (Ills.) 529; Goode v. 
 Hawkins, 2 Dev. Eq. (Nor. Car.) 393; Dick v. Cooper, 24 Penn. St. 217; SmuU 
 V. Jones, 6 Watts & S. (Penn.) 122; McMinn v. Phipps, 3 Sneed (Tenn.) 196; 
 Allen V. Stephanes, 18 Texas, 658. And an auction sale will not be set aside 
 because the purchaser, who was bidding for a third person, agreed with another 
 agent of the same person that the latter should not also bid : Allen v. Stephanes, 
 18 Texas, 658. All sales by auction should be open to full and free competition; 
 and if the purchaser does any act the effect of which is to destroy such competi- 
 tion, the sale will be void: Martin 'o. Ranlett, 5 Rich. (So. Car.) 541. If a pur- 
 chaser makes false representations to prevent others from bidding, and is success- 
 ful in his object, his purchase will be regarded as fraudulent and void : Bethel v. 
 Sharp, 25 Ills. 1 73 ; Vantrees v. Hyatt, 5 Ind. 487 ; Bunts v. Cole, 7 Blackf. (Ind.) 
 265; Mills w. Rogers, 2 Litt. (Ky.) 217; Walter v. Gernaut, 13 Penn. St. 515; 
 Hogg V. Wilkins, i Grant (Pa. Cas.) 67. Where a bidder for a public contract 
 paid another bidder to withdraw his bid, and assist the former in getting the con- 
 tract, the court held the transaction to be malum in se, and dismissed an action 
 brought to recover back the money after a failure to obtain the contract, in Sharp 
 V. Wright, 35 Barb. (N.Y.) 236. The same rule was applied in Swan v. Chor- 
 penning, 20 Calif. 182. But where, at an administrator's sale of the personal 
 
 143 
 
'121 
 
 THE SALE. 
 
 [part I. 
 
 which others were deterred from bidding, and he and a friend 
 
 of his were left the only bidders, it was held that there was 
 no legal sale, and that the vendor was justified in refusing 
 delivery of the barge (jy). But an agreement between intend- 
 
 (^y) Fuller v, Abrahams, 3 B. & B. 
 116; 6 Moore, 316. [If any artifice or 
 trick is resorted to at a sheriffs sale or 
 judicial sale to get the property at an 
 undervalue, the guilty purchaser will be 
 held as a trustee ex malefuio for the 
 person misled or injured thereby : Drury 
 V. Cross, 7 Wallace, 299; Faust v. 
 Haas, 73 Penn. St. 295. Or the sale 
 may be set aside at the suit of the in- 
 jured party; Forelande v. Hicks, 6 
 Ind. 448 ; Neal v. Stone, 20 Miss. 
 294 ; Stewart v. Nelson, 25 Mo. 
 309; Durfee v. Moran, 57 Mo. 374; 
 Jones V. Portsmouth R.R. Co., 32 N.H. 
 544; Jackson u. Morter, 82 Penn. St. 
 291 ; McMinn v. Phipps, 3 Sneed 
 (Tenn.) 196; see Chamblee k. Tarbox, 
 27 Texas, 139. Any promise or induce- 
 ment made by the purchaser at such a 
 sale to deter another from bidding is 
 illegal and void, as operating to prevent 
 competition : Packard v. Bird, 40 Calif. 
 378; Blythe v. Lovingood, 2 Ired. Law 
 (Nor. Car.) 20; Meech v. Bennett, Hill 
 & Denis Supp. (N.Y.) 191 ; Hook v. 
 Turner, 22 Mo. 333; Slingluff z/. Eckel, 
 24 Penn. St. 472. The same rule will 
 be applied to an interference by the 
 creditor at such a sale as if it were 
 made by any other bidder ; Penn v. 
 ToUeson, 20 Ark. 652; Spencer v. 
 Champion, 13 Conn. 11; Nelson ■p. 
 Brown, 23 Mo. 13; Hawley v. Cramer, 
 
 4 Cow. (N.Y.) 717. And it is fraudu- 
 lent conduct for the purchaser to deter 
 the sheriff from bidding by promising to 
 pay a judgment held by the sheriff against 
 the owner of the land which is offered 
 for sale, even though the sheriff is pro- 
 hibited by statute from purchasing in 
 such a case ; Rowe v. Cockrell, i Bailey 
 Eq. (So. Car.) 126. The purchaser at 
 a sale in foreclosure of a mortgage 
 agreed with the owrter of the equity of 
 redemption that the latter might redeem 
 for the amount of the bid within a lim- 
 ited time; which agreement, being 
 known at the sale, deterred others from 
 bidding; by reason whereof the prop- 
 erty brought much less than its value; 
 and the sale was set aside, and a resale 
 ordered : Woods v. Hudson, 5 Munf. 
 (Va.) 423. See also Morris v. Wood- 
 ward, 25 N.J. Eq. 32. Where the bid- 
 ders at a tax sale formed a ring, and 
 each bid off a tract as his turn came, the 
 whole sale was held, in Easton v. Maw- 
 kinney, 37 Iowa, 601, to be void for the 
 prevention of competition by this com- 
 bination. So in Kerwer v. Allen, 31 
 Iowa, 578. In Wood v. Hennen, 9 La. 
 Ann. 264, it was held that where the 
 purchaser at an execution sale has 
 deterred others from bidding for the 
 property, which has accordingly been 
 knocked off to him for a trifling sum, 
 the creditor may either sue to annul the 
 
 property of an intestate, the widow purchased many articles at a nominal price, 
 on account of the bystanders refusing to bid against her, the administrator cannot 
 be held responsible if he conducted the sale fairly, after due public notice, and 
 without connivance with the widow: Woody v. Smith, 65 Nor. Car. 116. And an 
 agreement or understanding among the members of a corporation selling its lands 
 by public auction that they might bid, and afterwards take the lots or not at their 
 option, will not invalidate the sale if the agreement was not carried into effect : 
 Buckley v. Briggs, 30 Mo. 452; for the mere attempt to prevent competition, if 
 unsuccessful, will not be regarded: Haynes v. Crutchfield, 7 Ala. 189; Gilbert v. 
 Carter, 10 Ind. 16. And see Citizens' Bank v. Ober, i Woods C.C. 80; Van 
 Schaack v. Robbins, 36 Iowa, 201.] 
 
 144 
 
CHAP. VI.] 
 
 THE SALE. 
 
 122' 
 
 ing purchasers not to bid against each other is not illegal (z) ; 
 and in some trades knock out sales (a) are common {b). 
 
 [122] An auction being an open sale, the auctioneer can- 
 not, in general, refuse to accept biddings ; ^ but, where the 
 sale is without reserve, he ought not to accept a bidding from 
 the vendor or any one acting on his behalf (c). If property 
 
 sale or to hold the purchaser liable for 
 the amount of the judgment ; but he 
 must choose his remedy, and not seek 
 to adopt both courses. And see further 
 Penn v. ToUeson, 20 Ark. 652; Dean 
 V. Ball, 3 Bush (Ky.) 502. But a judi- 
 cial sale will not be vacated merely 
 because only a few bidders were pres- 
 ent, the property having brought an 
 adequate price : Hudgins &. Lanier, 23 
 Gratt. (Va.) 494. If the primary debtor, 
 by fraudulently procuring an irrespon- 
 sible person to make a sham bid for his 
 property when offered for sale to pay 
 the debt, succeeds in having the land 
 of another sold to satisfy the debt that 
 equitably ought to have been discharged 
 by himself, the injured party may re- 
 cover of him the sum thus lost with in- 
 terest : Darst v. Thomas, 87 Ills. 222.] 
 
 (a) Gallon v. Emuss, i Coll. 243; 
 8 Jur. 507; cf. In re Carew's Estate 
 Act, 26 Beav. 187; 28 L.J. Ch. 218; 
 Heffer u. Martyn, 36 L.J. Ch. 372; 15 
 W.R. 390; W.N. 1867, 50, 75; Chat- 
 tock V. Muller, 8 Ch. D. 177. 
 
 (a) A knock out sale is where sev- 
 
 eral persons, before attending a sale by 
 auction, agree together that one of them 
 only shall bid for any particular article, 
 and after the .sale put up privately 
 amongst themselves the goods that each 
 has bought at the auction, dividing the 
 difference between the price at which 
 the goods were originally bought and 
 that which was subsequently realized. 
 
 (Ji) Maclach. 16, «., where the 
 learned author suggests that the mis- 
 chiefs occasioned by such agreements 
 may be obviated by fixing a reserved 
 price. He goes on to add that in Scot- 
 land such agreements vitiate the sale. 
 And see Levi v. Levi, 6 C. & P. 239 (a 
 nisi prius case), where Gurney, B., 
 said, referring to knock out sales : 
 " Owners of goods have a right to ex- 
 pect at an auction that there will be an 
 open competition from the public; and 
 if a knot of men go to an auction upon 
 an agreement among -themselves of the 
 kind above described, they are guilty of 
 an indictable offence." 
 
 (c) Post, Chap. VII., and post, p. 
 126. 
 
 [' A sheriff selling property by auction under process of law is not obliged to 
 take the bid of an irresponsible or insufficient bidder : Hobbs v. Beavers, 2 Ind. 
 142; Den V. Zellers, 7 N.J. Law (2 Halst.) 153. He may exercise his judgment 
 as to the sufficiency of any security offered, and may require bidders to be pre- 
 pared to comply at once with the terms and conditions of the sale : Michel v. 
 Kaiser, 25 La. Ann. 57. So a trustee, in selling the trust property by auction, is 
 not necessarily bound to accept every bid. He may refuse a bid of which the 
 acceptance would result in frustrating the very purpose of the sale, even though 
 that bid was nominally the highest. So in a judicial sale, in order to prevent a 
 person who is entirely unable to complete the purchase from baffling the court by 
 becoming the highest bidder, the court may direct that the bid of such person be 
 not received, and may order that the officer making the sale report the two highest 
 bidders, so that, if the highest bidder fails to comply with the terms of sale, the 
 next highest may be received and taken as the purchaser : Murdock's Case, 2 
 Bland Ch. (Md.) 461,] 
 
* 
 
 123 THE SALE. [PART I. 
 
 is put up with a right of bidding once reserved to the vendor, 
 that right is exercised, if the auctioneer, with the vendor's 
 authority, start the property at a certain sum, and the pur- 
 chaser may avoid the contract, if the auctioneer make, or 
 accept, a further bidding for the vendor {d). The auctioneer 
 should, moreover, refuse to accept the biddings of persons 
 who labour under an incapacity, such as infants, lunatics, 
 drunken persons or people standing in a iiduciary relation to 
 the property sold.i 
 
 Infants. — By the Infants Relief Act, 1874 {e), contracts for 
 the sale to infants of goods other than necessaries are abso- 
 lutely void ; and an infant cannot be adjudicated a bankrupt 
 in respect of debts incurred by him under such contracts (/"). 
 But although an infant can abandon a contract into which he 
 has entered, he cannot, perhaps, except under special circum- 
 stances, recover money which he has actually paid under 
 it {g). If an infant has induced a contract with him [123] by 
 an express representation (Ji) that he was of full age, he is 
 liable in equity for the fraud, and in such a case it has been 
 decided that, if he becomes bankrupt after he is of full age, 
 the person who has been defrauded can prove in the bank- 
 ruptcy for the amount of the equitable liability resulting from 
 
 ((/) See judgment of Grove, J., in case before the act, where it was held 
 
 Parfitt V. Jepson, 46 L.J.Q.B. 529; 36 that an infant who had paid a premium 
 
 L.T.N.S. 251. on entering into a partnership and had, 
 
 (') 37 '■^ 3^ Vict. c. 62, s. I. As to before coming of age, disaffirmed the 
 
 what are necessaries, see Poll. Con. 49; contract could not, in the absence of 
 
 Add. Con. 117; Leake, 549. fraud, recover his deposit. 
 
 (/). Ex parte ]ont5, i8 Ch. D. log; (_h) The representation must be ex- 
 
 50 L.J. Ch. 673. .\n infant cannot ob- press: the mere fact that the infant 
 
 tain specific performance of a contract was engaged in trade would not be suf- 
 
 other than for necessaries, nor can the ficient; and it must also be one that 
 
 other party, it appears, rescind it ; Dart, would naturally deceive the person to 
 
 1044; Sugd. 217; Flight V. BoUand, 4 whom it was made: see judgment of 
 
 Russ. 298. Jessel, M.R., in Ex parte Jones, ubi 
 
 {£) Dart, 26; Poll. Con. 44; Ex supra; cf. Nelson v. Stocker, 4 De G. 
 
 parte Taylor, 8 De G., M. & G. 254, a & J. 458; 28 L.J. Ch. 760. 
 
 [' An auctioneer may decline to receive the bid of a minor : Kinney ?>. Showdy, 
 I Hill (N.Y.) 544; or of any irresponsible party; Den v. Zellers, 7 N.J. Law (2 
 Halst.) 153. He has the right to exercise his discretion, with fairness, as to 
 whether he will receive a bid from any particular person : Holder v. Jackson, 1 1 
 U.C.C.P. S43-] 
 
 146 
 
CHAP. VI.] 
 
 THE SALE. 
 
 124* 
 
 the fraud («). An infant can act as agent for another per- 
 son {j). 
 
 Married "Women. — A married woman can purchase so as to 
 bind her separate estate (k) ; but she cannot pledge her hus- 
 band's credit without authority from him, either express or 
 implied (/). 
 
 Lunatics. — With regard to lunatics, the rule appears to be 
 that sale-transactions with a person apparently sane, but af- 
 terwards found to be of unsound mind, will not be set aside 
 against those who have dealt with him in the bond fide belief 
 that he was of competent understanding (;«). 
 
 Drunkards. — A contract into which a person has been in- 
 duced to enter while in a state of complete intoxication will 
 be set [124] aside («) ; but the fact that he was considerably 
 in liquor when he entered into the agreement is not alone a 
 reason for refusing specific performance against him, if there 
 was no fraud. The question is whether he entered into the 
 agreement with full understanding and knowledge of what he 
 was doing {o). 
 
 (i) Ex parte Unity Banking Asso- 
 ciation, 3 De G. & J. 63. 
 
 {j) Watkins v. Vince, 2 Stark. 368 ; 
 Add. Con. 47. [Brown v. Hartford 
 Ins. Co., 117 Mass. 479.] 
 
 (Ji) Dart, 28 ; Leake, 554 et seq. ; 
 Poll. Con. 58 et seq.; Add. Con. 127 
 et seq. 
 
 (?) Debenham v. Mellon, 6 App. 
 Cas. 24; 50 L.J.Q.B. 155. [See Shel- 
 ton V. Pendleton, 18 Conn. 417; Cany 
 V. Patton, 2 Ashmead (Penn.) 140; 
 Alexander z<. Miller, 16 Penn. St. 215; 
 Sawyer v. Cutting, 23 Vt. 486.] 
 
 (ot) Dart, 6; Add. Con. 140; Elli- 
 ott V. Ince, 7 De G.M. & G. 475, 488; 
 Molton V, Camroux, 4 Ex. 17; iS L.J. 
 Ex. 356. [Yauger v. Skinner, 14 N.J. 
 Eq. (i McCart.) 389; Carr v. Holliday, 
 5 Ired. Eq. (Nor. Car.) 167.] Evidence 
 of the lunatic's conduct, as well before 
 as after, his signing the contract, is ad- 
 missible for the purpose of fixing the 
 other contracting party with notice of 
 the insanity : Beavan v. McDonnell, 
 10 Ex. 184; but evidence of general 
 
 I 
 
 reputation of lunacy is not sufficient : 
 Greenslade v. Dare, 20 Beav. 284. [See 
 Gibson u. Soper, 6 Gray (Mass.) 279; 
 Arnold v. Richmond Iron Works, i id. 
 434; Allis V. Billings, 6 Met. (Mass.) 
 415; Swartwont v. Burr, : Barb. (N.Y.) 
 
 495-] 
 
 (m) Cooke V. Clayworth, 18 Ves. 12; 
 approved in Nagle v. Baylor, 3 Dr. & 
 War. 60; Gore v. Gibson, 13 M. & W. 
 623; Pitt V. Smith, 3 Camp. 33. 
 
 (0) Lightfoot V. Heron, 3 Y. & C. 
 586; Sugd. 212; Add. Con. 319; Poll. 
 Con. 82. A contract made by a man 
 when drunk may be ratified by him 
 when sober : Matthews v. Baxter, L.R. 
 8 Ex. 132 ; 42 L.J. Ex. 73. [See 
 Campbell v. Ketcham, i Bibb. (Ky.) 
 406 ; Prentice v. Achorn, 2 Paige 
 (N.Y.) 30 ; Morrison v. McLeod, 2 
 Dev. & Bat. Eq. (Nor. Car.) 221 ; 
 Ford V. Hitchcock, 8 Ohio, 214; Ruth- 
 erford V. Ruff, 4 Desaus. (So. Car.) 350; 
 White V. Cox, 3 Hayw, (Tenn.) 79, 82; 
 Conant v. Jackson, 16 Vt. 335 ; Barrett 
 z/.Baxton, 2 Aiken (Vt.) 167; Wiggles- 
 
 47 
 
'125 
 
 THE SALE. 
 
 [part I. 
 
 Bankrupts. — The title of a trustee in bankruptcy relates 
 back to the date when the act of bankruptcy upon which ad- 
 judication is founded was committed ; and no person having 
 had notice of an act of bankruptcy available for adjudication 
 can prove for any subsequent debt or liability contracted by 
 the bankrupt (/) ; but a debt or liability incurred by the 
 bankrupt under a contract made in good faith and for val- 
 uable consideration before the date of the order of adjudica- 
 tion with a person not having, at the time of making such 
 contract, notice of an act of bankruptcy committed by the 
 bankrupt may be proved for {q). Notice of an act of bank- 
 ruptcy means knowledge thereof, or wilfully abstaining from 
 acquiring such knowledge {r) ; and true information that an 
 act of bankruptcy has been committed, in whatever way or 
 from whatever quarter it may come, is sufficient (s). 
 
 [125] Trustees, &c. — As a general rule, purchases of prop- 
 erty towards which the purchaser stands in a fiduciary posi- 
 tion, e.g., by trustee {t), solicitors {u) &c., may be set aside at 
 
 worth V. Steers, i Hen. & Jt, (V,i.) 
 70.] 
 
 (f) 32 & 33 Vict. c. 71 (Bankruptcy 
 Act, 1S69), s. 31. 
 
 {q) Jb. ss. 94, § 3, 95. For defini- 
 tion of act of bankruptcy, and as to 
 commencement of bankruptcy and vest- 
 ing of the property in the trustee, see 
 ss. 6, II, 15, 17. See also posl,-^. 189, 
 as to trustee's right to disclaim, 
 
 (r) Eird v. Bass, 6 Man. & G. 143; 
 Ex parte Snowball, L.E.. 7 Ch. 534, 
 
 549- 
 
 (j) Lucas v. Dicker, 6 Q.B.D. 84, 
 88; 50 L.J.Q.B. 190. [See Hayes v. 
 Harmony Grove Cemetery, loS Mass. 
 400 ; Richmond %■. Gray, 3 Allen 
 (Mass.) 25 ; Schermerhorn v. Niblo, 2 
 Eosworth (N.Y.) i6i, 165.] 
 
 (J) Downes v. Grazebrook, 3 Mer. 
 200; Sugd. 691. The rule is said to be 
 more than ordinarily stringent against 
 assignees or trustees of bankrupts : Dart, 
 32 ; and in a recent case, where a trus- 
 tee in bankruptcy purchased the prop- 
 erty of the debtor, his conduct was dis- 
 approved, although it had been sanc- 
 
 tioned by a resolution of the creditors : 
 In re Wainwright, W.N. 1881, 138; 30 
 W.R. 62; In re Moore, W.N. 1881, 
 151; 45 L.T.N.S. 558; 30 W.R. 123. 
 See also Ex parte Lewis, i G. & J. 69; 
 E.t parte Buxton, ib. 355. But a pur- 
 chase at an adequate price by a trustee 
 for sale, at a sale by auction which is in 
 fact conducted by a cesttii que trust, 
 may perhaps be supported: Dart, 43, 
 citing Coles v. Trecothick, 9 Ves. 234; 
 I Smith, 233. [See antca, p. 4, n. 2.] 
 (a) Ex parte 'Bermett, 10 Ves. 380; 
 McPherson v. Watt, 3 App. Cas. 254. 
 In Nelthorpe 7/. Pennyman, 14 Ves. 517, 
 Lord Eldon, L.C., is reported to have 
 said : " It would be a very wholesome 
 rule to lay down, that the solicitor in the 
 cause should have nothing to do with 
 the sale; as the certain effect of a bid- 
 ding by the solicitor is that the sale is 
 immediately chilled." [See Harrison 
 V. Mock, 10 Ala. 1S5, 194; Cram v. 
 Mitchell, I Sandf. Ch. (N.Y.) 251,256; 
 Wiggins ex parte, I Hill Ch. (So. Car.) 
 353; Wade V. Harper, 3 Yerger (Tenn.) 
 383-] 
 48 
 
CHAP. VI.] 
 
 THE SALE. 
 
 126* 
 
 the suit of the owner or a party interested in the property {v). 
 As a rule, the auctioneer should not bid himself : he cannot 
 buy, either for himself {w), or for a third party {x), the prop- 
 erty which he is employed to sell. 
 
 The Reserved Price. — If the biddings do not come up to 
 the reserved price, the auctioneer withdraws the property, or 
 the lot, whichever it may be, from the sale. If the reserve is 
 nearly, but not quite, reached, the auctioneer, supposing his 
 instructions to [126] authorize such a course {y), will inti- 
 mate that he is prepared to treat for a sale by private con- 
 
 (v) Dart, 31 ; Sugd. 688. 
 (w) He is not, however, absolutely 
 disqualified; see ante, p. 28, note 
 
 {x) Story, Con. §§ 319, 329; cf. 
 Story, Ag. § 211. Where the same 
 agent acts for two opposing parties, it 
 must appear that the principals were 
 placed at arm's length in the transac- 
 tion: Dart, 31. The first duty of an 
 auctioneer is towards his principal, and 
 the effect of his bidding for a third per- 
 son might be to damp the sale. In 
 Twining v. Morrice, 2 Bro. Ch. 326; 
 approved in Downes v. Grazebrook, 
 3 Mer. 200, 209; specific performance 
 was refused at the suit of a purchaser 
 who had employed a known agent of 
 the vendor to bid for him. [The bene- 
 ficiaries in a trust deed cannot make the 
 trustee their agent at his sale to pur- 
 chase the property for them to the best 
 advantage; but they may send him 
 their bid, and request him to sell them 
 the land if no one bids more at the 
 sale; and he may do so without any 
 breach of trust : Seesel v. Ewan, 35 
 Ark. 127.] A contrary opinion to that 
 stated in the text is, however, expressed 
 in Bexwell v. Christie, i Cowp. 395, 397, 
 decided in 1776. If an auctioneer has 
 been requested by a third party to bid 
 for him, he should always obtain his 
 principal's consent to his doing so. 
 [Veazie v. 'Williams, 3 Story, C.C. 611; 
 Arnold v. Brown, 24 Pick. (Mass.) 89. 
 An agent employed to sell property 
 cannot hunsclf, without the consent of 
 
 his principal, become a purchaser of it : 
 Marsh v. Whitmore, 21 Wallace, 178; 
 Cleveland Ins. Co. v. Reed, i Bissell, 
 C.C. 180; Jeffries v, Wiester, 2 Sawyer 
 C.C. 135; White V. Ward, 26 Ark. 445; 
 Francis v. Kerber, 85 Ills. 190; Hughes 
 V. Washington, 72 Ills. 84; Eldridge v. 
 Walker, 60 Ills. 230; Kerfoot v. Hy- 
 man, 52 Ills. 512; Parker v, Vose, 45 
 Maine, 54; Copeland i/. Mercantile 
 Ins. Co., 6 Pick. (Mass.) 198; Ames v. 
 Port Huron Log Driving Co., 1 1 Mich. 
 139; Clute z/. Barron, 2 Mich. 192; 
 Dwight V. Blackmar, id. 330; Ingerson 
 v. Starkweather, Walk. Ch. (Mich.) 
 346; Crumley v. Webb, 44 Mo. 444; 
 Ruckman v. Bergholz, 37 N.J. Law, 
 437; Bain v. Brown, 56 N.Y. 285; 
 Cumberland Coal Co. v. Sherman, 30 
 Barb. (N.Y.) 553 ; Tynes v. Grimstead, 
 I Tenn. Ch. 508; Scott v. Mann, 36 
 Texas, 157; Cook v. Berlin Woolen 
 Mill Co., 43 Wise. 433; Stewart v. 
 Mather, 32 Wise. 344. But the pur- 
 chase by the auctioneer or other agent 
 employed to sell the property is valid 
 if confirmed by the principal : Veazie v. 
 Williams, 3 Story, C.C. 611, 625, and is 
 valid against everybody else, though it 
 may be avoided by his principal within 
 a reasonable time : Marsh v. Wliit- 
 more, 21 Wallace, 178; Eastern Bank 
 w. Taylor, 41 Ala. 93; Bassett v. Brown, 
 105 Mass. 551. In Scott v. Mann, 36 
 Texas, 157, it was held that an agent 
 selHng property by public outcry may 
 bid it off for a third party.] 
 (_y) See anti, p. 27. 
 
 149 
 
*I26 THE SALE. [pART I. 
 
 tract.' If the reserve is passed, the auctioneer allows the 
 biddings to continue, so long as they proceed briskly ; but, 
 as soon as they begin to flag, he declares the sale to be an 
 open one. 
 
 Retraction of Bidding. — Every bidding is but an offer on 
 one side, which is not binding on either, until it is accepted 
 by the auctioneer,^ who declares the sale complete by knock- 
 ing down the hammer, or in some other usual mode {z). And, 
 in cases where a written contract is necessary, it seems that 
 a purchaser may retract his bidding after the lot has been 
 knocked down to him, but before the auctioneer has actually 
 made the entry {a). 
 
 Declaring Purchaser. — At the close of the biddings the 
 auctioneer ought to declare the highest bidder purchaser.^ If 
 
 (s) Where the property consists of afterwards set up a mistake as to the 
 
 goods of a less value than ;iflo, the quantity sold: Burgoyne v. Middleton, 
 
 transaction is then complete without 4 Calif. 64.] 
 
 any writing: Eden v. Blake, 13 M. & {a) Anle,^. 30. The entry should 
 
 W. 614; 14 L.J. Ex. 194; posiy p. 164. be made immediately : Jones 7/. Nanney, 
 
 [Though an auctioneer who sells a bal- 13 Price, 76, 102; McCle. 25. [For 
 
 ance of goods without specifying the after the sale is concluded the auctioneer 
 
 quantity has a reasonable time to ascer- is no longer the agent of both parties, 
 
 tain it, yet, when the bill of particulars but of the seller only: Smith v. Arnold, 
 
 has been presented to the purchaser, 5 Mason C.C. 414, 419; White i/. Wat- 
 
 and a portion of the price paid, it then kins, 23 Mo. 423; Horton -u. McCarty, 
 
 becomes an executed contract by which 53 Maine, 394.] 
 the auctioneer is bound, and he cannot 
 
 [' See as to such sales by private contract. Cherry v. Stein, 1 1 Md. I ; Gibson's 
 Case, I Bland. Ch. (Md.) 138; Tyson v. Mickle, 2 Gill (Md.) 376.] 
 
 [" Downing I'. Brown, Hardin (Ky.) 181. See Dills v. Jasper, 33 Ills. 262; 
 Galpin V. Lamb, 29 Ohio St. 529. A trustee may waive a bid at a sale of the trust 
 property, on the refusal of the bidder to accept a deed and pay the money, and 
 may thereupon advertise the property for sale again at another time : Dover v. 
 Kennerly, 38 Mo. 469. But the trustee may refuse the bidder's application for 
 leave to withdraw his bid, and may direct the property to be struck off to him, if 
 the bid is otherwise binding : National Bank of Metropolis v. Sprague, 20 N.J. 
 Eq. (5 C. E. Green) 159.] 
 
 [' One who stands by and permits his name to be put down as the purchaser 
 by direction of the bidder will be bound as such purchaser, although the bidding 
 was made without his authority : Jenkins v. Hogg, 2 Treadw. Const. (So. Car.) 82 1 . 
 But where a person allowed himself to be reported by the trustee appointed to 
 make a sale under a decree as the highest bidder, but it appeared that this was 
 done without any design on his part to baffle or delay the execution of the decree, 
 and he afterwards declared himself to be unable to comply with the terms of the 
 sale, he was discharged upon payment of costs, in Deaver v. Reynolds, t Bland 
 Ch. (Md.) 50. And a sheriff's sale will not be set aside merely because the ofEcer 
 
 150 
 
CHAP. VI. J THE SALE. 1 27* 
 
 he, without disclosing his principal, puts up property under 
 a condition that the highest bidder shall be the purchaser, 
 and as being sold without reserve, he contracts with the 
 highest bond fide bidder that the property shall be knocked 
 down to him (/5) ; but, on the other hand, if his principal is 
 disclosed, he is not liable in contract, though he may be in 
 an action for deceit, if, under such conditions, a bidding is 
 made on behalf of the principal, and he knowingly accepts 
 it (c) ; and in any event it would appear that the principal 
 is liable, if he authorizes his property to be put up for sale 
 [127] as without reserve and afterwards buys it in himself or 
 procures some one to buy it in for him {d). It is said that, 
 when once the hammer has fallen, the vendor cannot revoke 
 the authority of the auctioneer {e). 
 
 Auctioneer must Enter Purchaser's Name, &c. — If the Sale 
 be of real estate, or of goods, wares or merchandise to the 
 amount of £,\o or upwards (_/), the auctioneer, or sometimes 
 his clerk {g), should write down the name of the purchaser 
 of each lot, or of the purchaser's agent,' together with the 
 price bid, against the description of the lot in the particulars 
 or catalogue, taking care that the conditions (and the plan, 
 if any) are incorporated therewith, or distinctly referred to 
 
 (J>) Warlow V. Harrison, I E. & E. (/) Even when the sale is of goods 
 
 295; 29 L.J.Q.B. 14; 6 Jut. N.S. 66; of a less value than ;^io, the name of 
 
 cf. Harris v. Nickerson, L.R. 8 Q.B. the purchaser and the price should be 
 
 286, 288, 289; 42 L.J.Q.B. 171 ; 21 written down, to avoid risk of dispute. 
 
 W.R. 636; 28 L.T.N. S. 410. The auctioneer must always bear in 
 
 (c) Mainprice v. Westley, 6 B. & S. mind that he is liable to pay damages 
 
 421; 34 L.J.Q.B. 229; 13 L.T.N.S. 560; to his employer, if the sale goes off in 
 
 14 W.R. 9; cf. Richardson z/. Silvester, consequence of his negligence: Peirce 
 
 L.R. 9 Q.B. 34; 43 L.J.Q.B. i. v. Corf, L.R. 9 Q.B. 210; 43 L.J.Q.B. 
 
 {d) Warlow v. Plarrison, ubi supra. 52; Hibbert v. Bayley, 2 F. & F. 48. 
 
 (f) Day V. Wells, 30 Beav. 220; 7 (^) If the purchaser has assented to 
 
 Jur. N. 1004. But see Leake, 279. his doing so: cf./orf, 154-6. [Alna i/. 
 
 See also ante, p. 30. Plummer, 4 Greenleaf (Me.) 258; Smith 
 
 V. Jones, 7 Leigh (Va.) 165.] 
 
 violated the instructions of the creditor in whose favor the sale was made to sell 
 the property to him for a certain sum unless more was bid by another : Moore v. 
 Pye, lo Kansas, 246.] 
 
 [' An agent who purchases at an auction sale real estate at a price higher than 
 the limit given to him by his principal does so on his own account : Hampton v. 
 Speckenagle, 9 Serg. & R. (Penn.) 212.] 
 
 151 
 
*I28 THE SALE. [PART I. 
 
 in the entry {h). And it is not sufficient for him to make 
 these entries in his ledger, or sale-book, only, unless refer- 
 ence is clearly made therein to the particulars (or catalogue) 
 and conditions {{). And if the particulars or conditions have 
 been in any way altered, the alteration must appear in the 
 copy on which the memorandum is made ; and proof will be 
 required that the purchaser knew of the alteration. Where 
 chattels were sold by auction, and on the day following the 
 sale the purchaser signed a memorandum endorsed on con- 
 ditions which differed materially from [128] those appended 
 to the catalogue of sale, of which alone he had notice, and 
 paid a deposit in pursuance of, as he believed, the conditions 
 that were published at the sale, it was held that he could not 
 be sued on the conditions appended to the memorandum, but 
 only on those read out in the auction-room (/). The entry 
 should, moreover, be made without delay, as the auctioneer's 
 authority to sign for the purchaser ceases on the termination 
 of the sale {k). 
 
 The Contract. — On the sale of real estate the best mode 
 of completing the contract is for the vendor and pur- 
 chaser, or their agents, to sign a memorandum at the 
 foot, or on the back, of the particulars with the conditions 
 annexed (/). 
 
 Auctioneer Selling Ms Own Property. — When the auctioneer 
 is selling his own property, he cannot bind the purchaser by 
 himself signing the name of the latter {m). In such a case, 
 
 (h) Post, pp. 159, 160. If the con- (Mass.) 385; Kurtz v. Cummings, 24 
 
 ditions have, during the progress of the Penn. St. 25. Postea, p. 157.] 
 sale, become detached from the particu- (y) Page v. Cowasjee Eduljee, L.R. 
 
 lars, they must be connected together i P.C. 127, Nor could he have been 
 
 again, before the signature is affixed : sued at all, unless some act had been 
 
 Kenworthy v. Schofield, 2 B. & C. 945, done to take the case out of the Statute 
 
 948. of Frauds: see /orf, Chap. VIII, 
 
 (i) Peirce v. Corf, L.R. 9 Q.B. 210; {Ji) See ante, p. 27. [Smith v. Ar- 
 
 43 L.J.Q.B. 52; Rishton z*. Whatmore, nold, 5 Mason C.C. 419; White i/. Wat- 
 
 8 Ch. D. 467; 47 L.J. Ch. 629. [See kins, 23 ilo. 423; Horton z*. McCarthy, 
 
 Adams v. McMillan, 7 Porter (Ala.) 73; 53 Maine, 394.] 
 
 Lee -u. Mahony, 9 Iowa, 344; Horton (/) Cf. ante, p. 89. For forms of 
 
 I*. McCarty, 53 Maine, 394; Lerned i). suchmemorandum,see/«4 pp. 342,344. 
 Wannemacher, 9 Allen (Mass.) 412,416, (wj) Cf. aw/if.p. 26, note (1?). [Smith 
 
 417; Gill V. Bicknell, 2 Cush. (Mass.) v. Arnold, 5 Mason C.C. 414; Bent v. 
 
 355, 359; Morton v. Dean, 13 Met. Cobb, 9 Gray (Mass.) 397.] 
 
CHAP. VI.J THE SALE. I29* 
 
 therefore, the purchaser should be made to sign himself or 
 by his agent («). 
 
 The Deposit. — The conditions of sale generally provide 
 that a certain percentage of the purchase-money shall be paid 
 forthwith by the purchaser, as a deposit, into the hands of 
 the auctioneer {o). When the subject of the sale is land, the 
 auctioneer has, as a rule, no authority to receive more than 
 the deposit (/). [129] In every case he must take care that 
 whatever money he is authorized to receive is paid to him in 
 the manner indicated in his instructions {q). Should the pur- 
 chaser fail to pay the deposit, when required to do so, it is 
 thought that the vendor would be entitled to treat the con- 
 tract as at an end, and that the auctioneer would be justified, 
 even apart from the conditions, in putting up the property 
 for a fresh sale. 
 
 Auctioneer should Disclose his Principal. — At, or immediately 
 after, the sale, the auctioneer ought to disclose the name of 
 his principal, if he wishes to avoid future responsibility (r). 
 It will be sufficient, if he writes the name on the memoran- 
 dum or contract. 
 
 Sale, by Private Contract. — If any lots remain unsold, or if 
 any alteration be made in the conditions after the property 
 has been knocked down, the sale ought to be treated as one 
 by private contract,' and an agreement signed by the princi- 
 
 («) The auctioneer's clerk may act price, unless by the conditions it is to 
 
 as agent for the purchaser to bind him, be paid to some one else : Sykes v. 
 
 if the latter assent: Bird !<. Boulter, 4 Giles, 5 M. & W. 645, 650; and see 
 
 B. & Ad. 443; I N. & M. 313; post, pp. ante, p. 26. [Thompson v. Kelly, loi 
 
 154-6. [Cathcart v. Keirnaghan, 5 Mass. 291.] 
 Strobh. Law (So. Car.) 129.] (jj) Ante, p. 27. 
 
 (0) Sometimes the auctioneer, when (r) Sug. 53; Hanson v. Roberdeau, 
 
 he has personal knowledge of the pur- Peake, N.P.C. 163; Mills v. Hunt, 20 
 
 chaser, does not exact the deposit; but Wend. 431; Franklyn v. Lamond, 4 
 
 in omitting to do so he acts at his own C.B. 637; 16 L.J.C.P. 221 ; 11 Jur. 780. 
 
 peril, see /orf, p. 175. [Bush v. Cole, 28 N.Y. 261 ; Mills v. 
 
 (/) See an/e, p. 27. An auctioneer Hunt, 20 Wend. (N.Y.) 431; Mauri v. 
 
 employed to sell goods for ready money PIeffernan,i3 Johns.(N.Y.) 58; McComb 
 
 is the agent of the vendor to receive the v. Wright, 4 Johns. Ch. (N.Y.) 659.] 
 
 [' This rule was applied in Cherry v. Stein, 1 1 Md. i . In this case the facts were 
 that a square in Baltimore known as Congress Square having been advertised for 
 sale by auction as a whole or in specified lots, the plaintiff before the sale agreed 
 to buy lot number one for $20,000, provided the square was not sold whole. At 
 
 153 
 
*I30 THE SALE. [PART I. 
 
 pals themselves (s), unless the auctioneer is expressly author- 
 ized to act as agent for one or both of the parties (/). If 
 it is desired under such circumstances to incorporate the 
 conditions of sale with the contract, they must be expressly 
 referred to, for they are not necessarily included, in it (//). 
 
 Sale, when Complete. — In ordinary cases {v) the contract is 
 complete when the [130] purchase agreement is signed, and 
 the right of property, when the subject of sale is goods, or 
 the beneficial interest, when it is land, then vests in the 
 purchaser (w). 
 
 (j) Broom, C.L. 416. pos/, pp. 345, 346; but it is dangerous 
 
 (/) Mews V. Carr, I H. & N. 484 ; for an auctioneer to draw up such an 
 
 26 L.J. Ex. 39. Cf. Hanier v. Sharp, agreement himself, or, generally, to 
 
 L.R. 19 Eq. 108; 44 L.J. Ch. 53; and trust to a cut and dried form. As a 
 
 an/c; p. 27, note (/5). rule, such an agreement should only be 
 
 (m) Cowley i'. Watts, 22 L.J. Ch. 591 ; drawn up under competent legal advice. 
 
 I7jur. 172. For form of agreement, (v) Not when the sale is by the 
 
 set post, p. 345. Forms of agreements Court; &te post, p. 248. 
 
 not referring to the conditions are given (w) See post, pp. 184 et seq. 
 
 the auction sale, no sufficient bid being made for the whole square, lot number 
 one was knocked down to the plaintiff for the agreed price ; and lot number four 
 was sold to the defendant. A small piece of land lying next to one of these lots 
 was included in lot number one by the terms of the advertisement, but not by the 
 description in the private contract of sale; but it was included in the certificate 
 of sale given to the defendant. Held that, the square not having been sold 
 whole, lot number one was sold according to the terms of the private agreement, 
 and not according to the terms of the public advertisement.] 
 
 Postscript to Chapter VI. — Since the above paragraph upon the auctioneer's 
 authority to warrant goods entrusted to him to sell (see supra, p. 119) was \vritten, 
 a decision upon the question has been given in Payne v. Lord Leconfield, an 
 action for breach of warranty of a horse sold by auction. The jury being unable 
 to agree, Mr. Justice Bowen directed them to find a formal verdict for the defend- 
 ant, upon the ground that an auctioneer employed to sell a horse had no implied 
 authority to warrant him. The auctioneer in the case was the proprietor of a 
 horse and carriage repository, and the defendant, the vendor, a private individual 
 who had sent the horse for sale with a written description which did not contain 
 the H arranty given by the auctioneer. No evidence was given that it was custom- 
 ary to warrant. (^Ex relatione Mr. J. D. Fitzgerald.) This direction has since 
 been upheld by Grove and Mathew, JJ., sitting as a Divisional Court. 
 
CHAP. vii.J puffers; reserved biddings, etc. 131* 
 
 [131] 
 CHAPTER VII. 
 
 puffers ; RESERVED BIDDINGS, ETC. 
 
 Private Biddings. — It seems to have been a common prac- 
 tice from an early period for the seller at an auction to em- 
 ploy some one to bid on his behalf, in order to prevent the 
 property from being sold at any considerable loss. The fair- 
 ness of such a proceeding, where a right to bid has been 
 expressly reserved, appears never to have been doubted ; but 
 upon the question of its legality in the absence of any such 
 reservation a difference of opinion arose towards the end of 
 the last century between the courts of common law and the 
 courts of equity {a). 
 
 The common law courts took the stricter view. It was 
 held at law that a covert bidding on the part of the seller 
 was fraudulent, whether the sale was advertised as without 
 reserve or not.' In the leading case of Bexwell v. Christie {b) 
 
 («) A person who bids at an auction bidders ; and either the next highest 
 
 as secret agent of the seller for the pur- offerer will be preferred to the purchase, 
 
 pose of running up the price by leading or the sale effected by such means may 
 
 on others to bid is called a puffer, or be entirely set aside:" Bell, Diet. l86i 
 
 setter. Puffers were known in Cicero's ed. 859; see also Bell, Prin. 6th ed. § 
 
 time: "Non illicitatorem venditor, non 131. 
 
 qui contra asse liceatur eTuptor appo- (i^) I Cowp. 395; action against an 
 
 net:" De Off. lib. iii. s. 15. In Scot- auctioneer for selling for ;^6 i6i. i>d. a 
 
 land they are called whitel>07inets : gelding which he had directions not let 
 
 " The intervention of a whitebonnet is go under ;if 15; c{. infra, ■p. 141. 
 held in law to be a fraud upon the other 
 
 [' In this country the general rule is that by-bidding at auction sales is illegal, 
 and that the vendor cannot hold the purchaser to his bargain where the price has 
 been run up by means thereof: Veazie v. Williams, 8 Howard, 134; s.C, 3 Story 
 C.C. 611 ; Miller v. Barnard, 2 Houst. (Del.) 559; Latham v. Morrow, 6 B. Mon. 
 (Ky.) 630; Baham v. Bach, 13 La. 287; Moncriff f. Goldsboro, 4 Har. & McH. 
 (Md.) 281; Curtis v. Aspinwall, 114 Mass. 187; Towle v. Leavitt, 23 N.H. 360; 
 National Ins. Co. v. Loomis, 11 Paige (N.Y.) 431 ; Fisher v. HerSey, 17 Hun 
 (N.Y.) 370; Trust v. Delaplaine, 3 E. D. Smith (N.Y.) 219; Wolfe v. Luyster, 
 1 Hall (N.Y.) 146; Morehead v. Hunt, I Dev. Eq. (Nor. Car.) 35; McDowell 
 V. Simms, 6 Ired. Eq. (Nor. Car.) 278; Smith v. Greenlee, 2 Dev. Law (Nor. 
 
 ISS 
 
*i32 puffers; reserved biddings, etc. [parti. 
 
 Lord Mansfield, C.]., said that the question was whether, at 
 [132] a sale under conditions that " the highest bidder shall be 
 the purchaser, and if a dispute arise, to be decided by the 
 majority of the persons present,'' the owner might privately 
 employ another person to bid for him ; and he expressed 
 himself as follows : " The basis of all dealings ought to be 
 good faith ; so more especially in these transactions, where 
 the public are brought together upon a confidence that the 
 articles set up to sale will be disposed of to the highest real 
 bidder : that could never be the case, if the owner might 
 secretly and privately enhance the price by a person employed 
 for that purpose." His lordship characterized such a practice 
 as a fraud upon the sale and upon the public, and proceeded 
 
 Car.) 126; Woods v. Hall, I Dev. Eq. (Nor. Car.) 41 1; Staines v. Shore, 16 
 Penn. St. 200; Pennock's Appeal, 14 Penn. St. 446; Donaldson v. McRoy, I 
 Browne (Penn.) 346; Hinde ;'. Pendleton, Wythe (Va.) 145. Contra, Jenkins 
 V. Hogg, 2 Mill Const. (So. Car.) 82 1. The rule against puffing applies to 
 sheriff's sales : Lee v. Lee, 19 Mo. 420; National Bank of Metropolis v. Sprague, 
 20 N.J. Eq. 159; Donaldson v. McRoy, I Browne (Penn.) 346, though in Lee v. 
 Lee, supi-a, it was held that the debtor might lawfully employ some one to buy in 
 his property at a sheriff's sale, in order to prevent a sacrifice thereof. Nor is it 
 material that the by-bidding was instigated by the auctioneer without the seller's 
 knowledge, or that it was on other lots of the same land previously offered, if the 
 purchase was influenced thereby: Curtis v. Aspinwall, 114 Mass. 187; Yerkes v. 
 Wilson, 81 *Penn. St. 9. But the purchaser must promptly prosecute his remedy 
 upon the discovery that the price has been enhanced by by-bidding; otherwise he 
 will be taken to have affirmed the contract : Latham v. Morrow, 6 B. ilon. (Ky.) 
 630; McDowell V. Simms, 6 Ired. Eq. (Nor. Car.) 278; s.c.,Busbee Eq. (Nor. Car.) 
 130; Tomlinson v. Savage, id. (6 Ired.) 430; Backentoss v. Stabler, 33 Penn. St. 
 251; Staines z;. Shore, 16 Penn. St. 200. And it should appear that the pur- 
 chaser was influenced by the puffing: Veazie v. Williams, 8 Howard, 134; Tom- 
 linson V. Savage, 6 Ired. Eq. (Nor. Car.) 430; Curtis v. Aspinwall, 114 Mass. 187. 
 But where a creditor bid off his debtor's property at a sale under a decree of fore- 
 closure rendered in his favor, for a price exceeding the amount of his debt and 
 above the value of the property, and then sought to be relieved from his purchase 
 on the ground that there had been fraudulent competition at the sale, relief was 
 refused to him, in Berchog v. Walker, 19 Mich. 224. And the vendor cannot 
 himself complain of the underbidding: Small v. Boudinot, 9 N.J. Eq. (l Stock- 
 ton) 381 ; Boudinot v. Small, id. 381. In these cases the facts were as follows : 
 At an auction sale of land owned by a company to which both A and B belonged, 
 A bid off the land, paid a part of the price to B, and gave a mortgage for the 
 remainder. He then filed a bill in equity, alleging that the sale was vitiated by 
 underbidding resorted to by B to inflate the price of the property. But it was 
 held that as A was himself one of the owners of the land, there coyi^ii primd facie 
 have been no underbidding without his authority, in the absence of any proof that 
 it was done by a secret combination without his knowledge or consent : Small v. 
 Boudinot, ubi supra. 
 
CHAP. VII.] PUFFERS ; RESERVED BIDDINGS, ETC. 
 
 133" 
 
 thus : " The disallowing it is no hardship upon the owner. 
 For, if he is unwilling his goods should go at an under-price, 
 he may order them to be set up at his own price, and not 
 lower. Such a direction would be fair. Or he might do as 
 was done by Lord Ashburnham, who sold a large estate by 
 auction. He had it inserted in the conditions of sale that he 
 himself might bid once in the course of the sale ; and he 
 bid at once ;£i 5,000 or ;^20,000. Such a condition is fair, 
 because the public are then apprised and know upon what 
 terms they bid" {c). The principle of this decision was adopted 
 by Lord Kenyon (</), Lord Tenterden(^) and other eminent 
 judges on the same side of Westminster Hall {/). The 
 intervention of even a single puffer was held to vitiate a 
 sale ; nor did the courts inquire whether [133] the object of 
 his employment was to stimulate the zeal of buyers generally, 
 or to prevent the property from being sold at a sacrifice (g). 
 
 (it) Cf. Grose, J., in Howard v. Cas- 
 tle, 6 T.R. 642 : " If the owner of goods 
 put up to sale at an auction wishes that 
 they shall not be sold under a particular 
 price, he may declare so, before the 
 auction begins, or he may reserve one 
 bidding for himself, or declare that he 
 has appointed a particular person to 
 bid for him. In either of those cases the 
 parties meet on fair terms." [In Millar 
 zi. Campbell, 3 A.K. Marsh. (Ky.) 526, it 
 was held that if at an auction the price is 
 unreasonably run up by the intervention 
 of a puffer, yet this fraud cannot be 
 inquired into in an action brought by 
 the vendor for the purchase-money, but 
 the purchaser must seek his remedy in 
 an action on the case or a bill in equity 
 against the vendor. So the purchaser 
 cannot set up as a defence to an action 
 for the purchase-money that 1 person 
 interested in the estate, but unconnected 
 with the vendor, employed a person 
 who was obnoxious to the purchaser to 
 bid against him; by reason whereof, 
 and from his desire to keep such person 
 out, he bid more than the value of the 
 land: East 7/. Wood, 62 Ala. 313. On 
 the same principle relief was refused to 
 the purchaser at an executor's sale 
 
 where it appeared that the price had 
 been run up by the apparent competition 
 of a bidder who was really insolvent 
 and unable to comply with the terms of 
 sale, but was bidding to operate upon 
 the purchaser's known desire to obtain 
 the land, in Williams v. Bradley, 7 
 Heisk. (Tenn.) 54.] 
 
 {d) Howard v. Castle, 6 T.R. 642. 
 
 (f) Wheeler z/.Collier, Moo.&M. 123. 
 (/) See Crowder v. Austin, 3 Bing. 
 
 368; II Moore, C.P. 283; R. z;. Marsh, 
 3 Y. & J. 331; Thornett v. Haines, 15 
 M. & W. 367; 15 L.J. Ex. 230; Green 
 V. Baverstock, 14 C.B.N. S. 204; 32 
 L.J.C.P. iSi; 8 L.T.N.S. 360; 10 Jur. 
 N.S. 47; Warlow v. Harrison, 29 
 L.J.Q.B. 14, 15; cf. Hopkins v. Tan- 
 queray, 15 C.B. 130; 2 C.L.R. 842; 23 
 L.J.C.P. 162; i8 Jur. 608; Mainprice 
 V. Westley, 6 B. & S. 421 ; 34 L.J.Q.B. 
 229; 13 L.T.N.S. 560; 14W.R. 9. 
 
 (g) Crowder v. Austin, 3 Bing. 368; 
 II Moore, C.P. 283; Wheeler z;. Collier, 
 Moo. & M. 123; Green v. Baverstock, 
 14 C.B.N.S. 204; 32 L.J.C.P. 181; 8 
 L.T.N.S. 360; 10 Jur. N.S. 47 (where 
 Willes, J., appears to have erroneously 
 supposed that the rule in equity was 
 confined to sales by the Court) . 
 
 57 
 
*I34 puffers; reserved biddings, etc. [part i. 
 
 In equity, on the other hand, the employment of some one 
 person to bid for the vendor, in order that the property might 
 not be sold at an undervalue, was considered legitimate, 
 although not notified to the public beforehand, or to the 
 company present at the sale ; unless, indeed, the sale was 
 stated to be without reserve, or to that effect. ^ In Conolly 
 V. iParsons (k) Lord Loughborough (i), C, said : " I feel vast 
 difficulty to compass the reasoning that a person does not 
 follow his own judgment because other persons bid : that the 
 judgment of one person is deluded and influenced by the 
 bidding of others. It may weigh, if A., a skilful man, B., a 
 cautious man, and C, a wealthy man, are in competition ; but 
 where it is publicly known that persons are employed to bid, 
 it would be very foolish in any one to let himself be so 
 influenced." This, however, is not the ground upon which 
 later decisions in equity are rested ; and a truer exposition 
 of the equitable doctrine is to be found in the judgment of 
 Sir William Grant, M.R., in Smith v. Clarke (j). There the 
 vendors of an estate had [134] privately employed a person 
 to bid for them, at the sale, up to a moderate limit, and he 
 had bid accordingly, without the knowledge of the other bid- 
 ders. "I do not mean," said his Honour, "to state a propo- 
 sition so general as that there can be no fraud through the 
 medium of persons employed by the vendors. Lord Rosslyn 
 appears in Conolly v. Parsons to doubt whether there can be 
 that species of fraud : whether, in any case, the purchaser 
 can be said to be defrauded, merely as being drawn in through 
 eagerness of zeal and competition with others. I do not go 
 that length ; for, if the person is employed, not for the defen- 
 sive precaution, with a view to prevent a sale at an under- 
 value, but to take advantage of the eagerness of bidders, to 
 
 (A) 3 Ves. 625, 627 n. 9 Hare, 618; i5 Jur. 719; Woodward 
 
 (i) Afterwards Earl of Rosslyn. v. Miller, " Coll. C.R. 279; 15 L.J. 
 
 (j) 12 Ves. 477; cf. Flint w. Woodin, Ch. 6. 
 
 [' See Phippen v. Stickney, 3 Met. (Mass.) 384, 387 ; Morehead v. Hunt, 1 
 Dev. Eq. (Nor. Car.) 35; Jenkins t". Hogg, 2 Treadw. (So. Car.) 821; Steele v. 
 EUmaker, 11 Serg. & R. (Penn.) 86; Reynolds 1/. DeChaums, 24 Texas, 174. 
 In Williams's Case, 3 Bland Ch. (Md.) 186, the court ordered that a trustee ap- 
 pointed to sell the real estate of infants should either fix a price, or reserve a 
 bid, or have a by-bidder.] 
 
CHAP. VII.] PUFFERS ; RESERVED BIDDINGS, ETC. I35* 
 
 screw up the price, I am not ready to say that is such a trans- 
 action as can be justified in a court of equity. Neither do I 
 say that, if several bidders are employed by the vendor, in 
 that case a court of equity would compel the purchaser to 
 carry the agreement into execution ; for that must be done 
 merely to enhance the price ; it is not necessary for the defen- 
 sive purpose of protection against a sale at an undervalue. 
 I leave those cases to be determined on those grounds, when- 
 ever they may occur. It is sufficient to say this is not a case 
 of that description." It had already been decided that equity 
 would not countenance a demand of commission for attending 
 at an auction to enhance the price of goods {k) ; and Lord 
 Cranworth, C, subsequently held that a vendor could not be 
 allowed to employ more puffers than one, though limited to 
 the same price, unless he expressly stipulated that he might (/). 
 The indulgence [135] with which equity regarded the employ- 
 ment of a puffer was perhaps carried to its farthest extent in 
 Woodward v. Miller {m), where a statement by the auctioneer 
 that the sale was to be a bond fide one, and that, if there were 
 any puffers in the room, he should hate himself, was treated 
 as not amounting to a representation that the sale was to be 
 without reserve. 
 
 Auction Duty Acts. — The conflict between common law 
 and equity was not determined, and, indeed, was little af- 
 fected, by the several statutes («) exempting from the auction 
 duty {o), upon certain conditions, sales where the owner or 
 his agent bought in the property. " Nothing," said Mr. Jus- 
 tice Grose in the court of King's Bench, " can be more wise 
 than the doctrine laid down in the case of Bexwell v. Christie, 
 which is not in the least impeached by the acts of parliament 
 alluded to " (/). " The acts of parliament," said Lord Lough- 
 borough, sitting in equity, " go upon its being an usual thing. 
 
 (Ji) Walker v, Gascoigne, 13 Vin. {ti) 17 Geo. III. c. 50, s. lo; 19 
 
 544; Walker v. Nightingale, 4 Bro. Geo. III. c. 56, s. 12; 28 Geo. III. c. 
 
 P.C. 193. 37, s. 20; 42 Geo. III. c. 93, s. I. 
 
 (J) Mortimer v. Bell, L.R. I Ch. 10; [0) See ante, p. 5. 
 
 35 L.J. Ch. 25. (/) Viz., the statutes in question : 
 
 (/«) 2 Coll. C.R. 279; 15 L.J. Howard v. Castle, 6 T.R. 642; cf. 
 
 Ch. 6. Wheeler v. Collier, Moo. & M. 123. 
 
 159 
 
*i36 puffers; reserved biddings, etc. [part i. 
 
 and a fair thing, for the owner to bid " (g). The explanation 
 of this minor discrepancy is furnished by the fact that the 
 statutes in question did not particularize all the circum- 
 stances by which parliament contemplated that those trans- 
 actions would be accompanied which it intended to exempt 
 from the auction duty (r). 
 
 Sale of Land by Auction. — Eventually the validity of the 
 rule allowing one puffer [136] was questioned even in equity, 
 by Lord Cranworth (s) ; and in the year 1 867 the view of the 
 common law judges was vindicated, at least partially, by the 
 legislature. In that year an act of parliament was passed, 
 called "The Sale of Land by Auction Act, 1867" (t), which 
 contained, among other provisions, the following. 
 
 Equity Assimilated to Law. — The 4th section of the act 
 recites that "there is at present a conflict between Her 
 Majesty's courts of law and equity in respect of the validity 
 of sales by auction of land where a puffer has bid although 
 no right of bidding on behalf of the owner was reserved, the 
 courts of law holding that all such sales are absolutely ille- 
 gal, and the courts of equity under some circumstances giving 
 effect to them, but even in courts of equity the rule is unset- 
 tled," and that " it is expedient that an end should be put to 
 such conflicting and unsettled opinions " ; and it provides 
 that, after the passing of the act, " whenever a sale by auction 
 of land would be invalid at law by reason of the employment 
 of a puffer, the same shall be deemed invalid in equity as well 
 as at law." 
 
 Reservation of Right to Bid, &c., to be Express. — The 5th 
 section, after reciting that, " as sales of land by auction are 
 now conducted, many of such sales are illegal and could not 
 be enforced against an unwilling purchaser, and it is expe- 
 
 {q) ConoUy v. Parsons, 3 Ves. 625, (j) Mortimer v. Bell, L.R. i Ch. 10; 
 
 627 n. 35 L.J. Ch. 25 (1865). 
 
 (r) The statute 4 Geo. IV. c. 95, s. (0 30 & 31 Vict. c. 48. In the act, 
 
 53, permitted the trustees or commission- "land" means "any interest in any 
 
 ers of a turnpike load, putting up the messuages, lands, tenements or heredi- 
 
 tolls to let to farm, to "appoint some taments, of whatever tenure ; " "puffer," 
 
 person to bid for the same on their ac- " a person appointed to bid on the part 
 
 count, to the intent that such tolls may of the owner ; " " agent " is defined, but 
 
 not be let for less than an adequate only occurs in the definition, 
 value." 
 
 160 
 
CHAP. VII.] puffers; reserved biddings, etc. 137* 
 
 client for the safety of both seller and purchaser that such 
 sales should be so conducted as to be binding on both par- 
 ties," enacts "that the particulars or conditions of sale by- 
 auction of any land shall state whether such land will be sold 
 without reserve or subject to a reserved price, or whether a 
 right to bid is reserved ; if it is [137] stated that such land 
 will be sold without reserve, or to that effect, then it shall 
 not be lawful for the seller to employ any person to bid at 
 such sale, or for the auctioneer to take knowingly any bidding 
 from any such person." 
 
 Rights of Seller, -where Right to Bid Reserved. — By the 6th 
 section it is enacted that, " where any sale by auction of land 
 is declared, either in the particulars or conditions of such 
 sale, to be subject to a right for the seller to bid, it shall be 
 lawful for the seller or any one person on his behalf to bid 
 at such auction in such manner as he may think proper." 
 
 Sales by the Court. — These provisions are not intended by 
 the act to affect any sale of land made under an order of a 
 court having jurisdiction in equity {u). 
 
 Goods. — The Judicature Act, 1873 {v), provides that, 
 where "there is any conflict between the rules of equity and 
 the rules of the common law with reference to the same 
 matter, the rules of equity shall prevail." It must not, how- 
 ever, be assumed, because the act of 1867 refers only to sales 
 of land by auction, that it is therefore lawful to employ a 
 puffer upon a sale by auction of goods (w). All the cases in 
 which sales where a puffer had intervened were upheld by 
 the Court of Chancery were cases relating solely to land. In 
 Twining v. Morrice {x), a case of a sale by auction of land, at 
 which puffers had been employed, Sir Lloyd Kenyon, M.R., 
 is reported to have said : " With respect to bidders being 
 employed for the vendors, I do not say the doctrine in Bex- 
 well V. Christie is wrong ; but everybody knows that such 
 
 («) 30 & 31 Vict. u. 4S, a. 8. But to be of opinion that the equitable rule 
 
 set post, p. 245. still applies to goods: Malachl. 15. 
 
 {v) 36 & 37 Vict. c. 66, s. 25, sub-s. {x) 2 Bro. Ch. 326 (1788). Com- 
 
 II, which came into operation on the pare the very different language of the 
 
 1st of November, 1875; 37 & 38 Vict, same learned judge, as C.J., in Ho-ward 
 
 c. 83, s. 2. V. Castle, 6 T.R. 642 (1796; sale of 
 
 (w) Mr. Maclachlan would appear leaseholds). 
 
 161 
 
*I38-I39 puffers; reserved biddings, etc. [part i. 
 
 [138] persons are constantly employed." These last words 
 have scarcely at any time been true with reference to sales 
 of goods by auction, at all events, so far as they may imply 
 that every real bidder at an auction expects to find himself 
 in competition with some clandestine representative of the 
 seller. 
 
 "Where no Express Reservation. — Curiously enough, the act 
 does not say what consequences are to follow, where no state- 
 ment to the effect mentioned in the 5th section is made. In 
 such a case, the sale would, no doubt, be treated as without 
 reserve, at any rate, as towards a purchaser without notice (j). 
 
 The act makes a distinction between a reserved bidding 
 and a reserved right to bid ; and where property is sold 
 "subject to a reserved bidding," it is unlawful for the ven- 
 dor, without giving notice, to employ a person to bid up to a 
 fixed reserve (.?). Where the vendor reserves "the right to 
 bid once by himself or his agent," that, both under the stat- 
 ute and at law, excludes the auctioneer from bidding more 
 than once on his behalf (a) ; and it seems that such a right 
 would be exercised by the auctioneer starting the biddings at 
 a particular sum, or by the vendor announcing the reserved 
 price (6). 
 
 Where a right to bid has been reserved, the contract, it is 
 thought, will be binding on the purchaser, although there 
 was no contest between real bidders, and no one bid but the 
 purchaser and the person employed to bid for the vendor (c) ; 
 but, even under conditions of sale allowing the vendor to bid 
 once or oftener by himself or his agent, the auctioneer may 
 [139] not, it seems, run up the price by pretending to receive 
 from various parts of the auction-room biddings which are 
 not in fact made (d). 
 
 O) Cf. Dart, 113. 326; 45 L.T.N.S. 455; 30 W.R. 72; 
 
 (s) Gilliat ?■. t;illiat, L.R. 9 Eq. 60; cf. the Indian Contract .\ct, s. 123 : "If 
 
 39 L.J. Ch. 142; R. c'. Marsh, 3 V. & J. at a sale by auction the seller makes 
 
 33 r, use of pretended biddings to raise the 
 
 (a) Parfitt i'. Jepson, 46 L.J.C.P. price, the sale is voidable at the option 
 
 529; 36 L.T.N.S. 251. of the buyer." [Accordingly it has 
 
 {//) Per Grove, J., ii. been held by the supreme court of the 
 
 (it) Bowles V. Round, 5 Ves. 508; United States that if the employer of 
 
 Sugd. 10. an auctioneer fixes the minimum price 
 
 {d) Heatley v. Newton, 19 Ch. D. at which he will sell, and the auctioneer, 
 
 162 
 
CHAP. VII.] puffers; reserved biddings, etc. 140* 
 
 Sale "'Without Reserve." — Independently of the statute, 
 when a sale is announced as "without reserve" — whether 
 the announcement be contained in the written particulars, or 
 be made orally by the auctioneer — that, according to all the 
 cases, both at law and in equity, means, not merely that the 
 property will be peremptorily sold, but that neither the ven- 
 dor nor any one on his behalf will bid at the auction (c). 
 Those words exclude, in fact, any interference by the ven- 
 dor, or by those coming in under him, with the right of the 
 public to have the property at the highest bidding ; and, 
 therefore, an agreement, the result of which was to prevent 
 property put up to sale by auction from being sold under a 
 fixed sum, was held to be inconsistent with conditions of sale 
 stating that the property was offered for sale without reserve, 
 and specific performance of a contract entered into under 
 such circumstances was refused against a purchaser (/). 
 Where, however, upon the sale of an estate under a decree 
 in a suit, with liberty to the parties to bid, the auctioneer 
 stated in the sale-room that the sale was without reserve, but 
 that the parties were at liberty to bid, and the plaintiff in the 
 [140] suit bid at the sale, and ran up the purchaser from 
 
 by pretending to have bids for a much of thelatter'sloss; and a court of equity 
 larger amount, runs up the price to a will assist the purchaser by allowing 
 sura grossly exceeding both the limit him to recover back the fraudulent 
 fixed by the owner and the amount of excess obtained by the fraudulent bid- 
 any real rival bid, the transaction may ding and letting the contract stand for 
 be regarded as a fraud upon the pur- the amount of the largest real bid: 
 chaser. It will not be presumed that Veazie v. Williams, 8 Howard, 134.] 
 the auctioneer's pretended bids were (f) Thornett z/. Haines, 15 M. & W. 
 made in his own behalf; and if there 367; 15 L.J. Ex. 230; Warlow z/. Har- 
 is no proof that they were made for rison, 29 L.J.Q.B. 14, 15; Meadows v. 
 third persons, they must be regarded as Tanner, 5 Madd. 34. If an auctioneer, 
 made by him, while agent of the owner, not having authority from the owner to 
 with a view mainly to the owner's ben- sell property without reserve, undertakes 
 efit, though in the hope of some addi- to sell it without reserve, he is liable on 
 tional gain to himself by way of an his undertaking: Warlow v. Harrison, 
 increase in his commission. Accord- 29 L.J.Q.B. 14, 16. 
 ingly, the purchaser having been de- (/) Robinson i/. Wall, 10 Beav. 61; 
 ceived, and the vendor having adopted 2 Ph. 372; 16 L.J. Ch. 401; 11 Jur. 
 and received the benefits of the sale 577. The third party was to have the 
 effected by means of this deception, he the property for ;^35,ooo, if more should 
 is bound either to restore the consider- not be offered at the auction; and, as 
 ation and take back the property, or to part of the arrangement, he attended at 
 indemnify the purchaser to the extent the auction and bid. 
 
 163 
 
*i40 puffers; reserved biddings, etc. [parti. 
 
 ;^I4,000 to ;£ 19,000 without any other bidder intervening, 
 it was held that the purchaser was not entitled on that 
 ground to be discharged from his purchase {g). 
 
 Reserves Favoured in Equity. — It has been said that equity 
 has favoured the employment of a person to protect the prop- 
 erty {h). A bidding is reserved upon sales by the Court (i) ; 
 and where a person, employed to make the reserved bidding 
 for one estate, by mistake bid for, and was declared the pur- 
 chaser of, another, the Court refused to decree specific per- 
 formance against him (j). The great majority of sales by 
 auction are made subject to a reserved price, which the ven- 
 dor generally fixes with the assistance of the auctioneer (/^). 
 
 How to Fix Reserve. — The following observations of Malins, 
 V.-C, in Delves v. Delves (/), may serve as a guide in deter- 
 mining the amount of the reserve : " I think the fair princi- 
 ple to be observed in fixing reserved biddings is to put a 
 moderate price on the property, because, if they are fixed at 
 a fancy price, which one man in the world only could be in- 
 duced to give — such as (here) Lord Abergavenny might give 
 on account of the situation of his estate — and he does not 
 come forward, all the expense of the auction is thrown away, 
 the parties are disappointed in the hope of receiving their 
 money at an early period, and the very fact of the property 
 not being sold at the auction damages future sales." A 
 
 (^) Dimmock tj. Hallett, L,R. 2 Ch. to bid upon the property as an under- 
 
 21; 36 L.J. Ch, 146. In R. 1^. Marsh, bidder with the assurance that she would 
 
 I C. & J. 406, a sale " without reserve " not be bound to take the property 
 
 at which the auctioneer had made a against her will, and evidence that she 
 
 iond fide bidding for himself was upheld did not read the agreement or know its 
 
 against the purchaser. contents when she signed it, is inad- 
 
 {h) Dart, 195. missible to control the written agree- 
 
 (i) See Jer^•oise v. Clarke, I J. & W. ment, and does not show any such fraud 
 
 389; Shaw V. Simpson, ib. 392, note, as to entitle the defendant to avoid the 
 
 Cf. ante, p. 91; where also see as to agreement: Faucettz'. Currier, 109 Mass. 
 
 trustees. [But if a puffer to whom the 79; s.c, 115 Mass. 20. So in National 
 
 property has been knocked down fails Ins. Co. v. Loomis, 1 1 Paige (N.Y.) 
 
 to prove that he was employed by the 431.] 
 
 vendor, he will be held to his bargain: Q') Malins v. Freeman, 2 Keen, 25. 
 
 Bennett v. Smith, 16 Jur. 421. In an [Patterson «/. Preston, 51 Md. 190.] 
 
 action against a married woman for her {K) For form of appointment of a 
 
 breach of her written agreement to pur- person to bid, see post, p. 342. 
 
 chase land sold to her by auction, parol (/) L.R. 20 Eq. 77, 81, 82; sale by 
 
 evidence that the plaintiff requested her the Court. 
 
 164 
 
CHAP. VII.] PUFFERS j RESERVED BIDDINGS, ETC. I4I-I42* 
 
 remarkable instance of the last-mentioned consequence of 
 [141] fixing too high a reserve is given in Ex parte Lacey {in), 
 where Lord Eldon says : " In Kirton's case lately ^^^23,000 
 was bond fide bid ; and the estate was bought in by the 
 agent for the vendor. Afterwards there was another sale in 
 the Master's office ; and the consequence of that circum- 
 stance deterring others from bidding was that the estate 
 finally sold for jQjfiOO, a depreciation contrary to all expe- 
 rience.'' It has been considered fair for an auctioneer, being 
 also the owner, when a party comes to him and inquires 
 whether the property will be sold for a given sum, to say 
 that it probably will, and afterwards to fix the reserve at 
 that sum {n). 
 
 As to Disclosing Reserve. — There appears to be no objection 
 to the auctioneer disclosing the amount of the reserve, when 
 his doing so is likely to benefit his principal (<?). 
 
 Auctioneer may Disregard Fraudulent Instructions and Biddings. 
 — If an auctioneer instructed to sell is directed by his prin- 
 cipal to use some artifice in fraud of the bond fide bidders 
 at the sale — and such is the meaning of a direction "not to 
 let" goods "go under" a specified sum — he may ignore the 
 illegal direction, and sell the property for whatever it will 
 fetch (/) ; and if, upon a sale stated to be without reserve — 
 or rather, perhaps, not stated to be subject to a reserve — a 
 bidding should be made on the part of the seller, the auc- 
 tioneer ought, in self-defence, not to take such bidding, where 
 his principal is undisclosed (q), and he will be justified in any 
 case in rejecting such a bidding, when made maid fide (r). 
 
 [142] As to Purchaser Damping Sale. — Besides puffing, there 
 is another kind of hindrance to a free and open sale, which the 
 law discountenances : where a person desirous of purchasing 
 prevents others by his improper conduct from bidding against 
 him (s). The courts have refused to interfere against a ven- 
 
 (m) 6 Yes. 625, 628. (jr) Warlow v. Harrison, 29 L.J.Q.B. 
 
 (k) Flint V. Woodin, 9 Hare, 618; 14; cf. anU, p. 26, note (/). 
 
 l6Jiir. 719; Sugd. 10. (r) Bexwell ». Christie, i Cowp.395. 
 
 (o) Else V. Barnard, 28 Beav. 228. (s) Cf. Bell Prin. § 132; 2 Kent, 
 
 (/) Bexwell V. Christie, i Cowp. Com. 539, note («). [Abbey i/. Dewey, 
 
 395; cf. an/e, p. 25. 25 Penn. St. 413; Sharp v. Long, 28 
 
 165 
 
'142 
 
 PUFFERS ; RESERVED BIDDINGS, ETC. [PART I. 
 
 dor, where the purchaser had chilled the sale through sug- 
 gestions to those present in the auction-room by way of 
 appeal to their sympathies {t) ; and, again, where the property 
 was knocked down to the purchaser below the reserved price, 
 in consequence of the reserved bidding not being made, 
 through the purchaser inducing a belief in the person em- 
 ployed to make it that he himself (the purchaser) was acting 
 under a similar employment {ii) ; and also where the pur- 
 chaser engaged the vendor's known agent to buy an estate 
 for him, and the sale was* damped through the agent being 
 mistaken for a puffer {v). It can hardly be doubted that, 
 upon anything of this kind occurring, the auctioneer would 
 have a discretion to withdraw the property.^ 
 
 Mock Auctions. — It is perhaps unnecessary to say that 
 transactions at mock auctions cannot be supported against a 
 purchaser, either at law, or in equity (w). 
 
 Penn. St. 433; Dick v. Lindsay, 2 Grant 
 (Pa. Cas.) 431 ; Hamilton -'. Hamilton, 
 2 Rich. Eq. (So. Car.) 355. But the 
 fraud and its success must be clearly 
 shown. Cases cited supra ; Crutchfield 
 V. Thurman, 4 Bush (Ky.) 498; Foster 
 V. Pagh, 12 Sm. & M. (Miss.) 416. If 
 at a sale under process of laiv the prop- 
 erty has been sacrificed through the 
 purchaser's misconduct or interference 
 with bidders, this is a fraud which will 
 vitiate the sale ; The Sparkle, 7 Bene- 
 dict, 528; Mapps V. Sharpe, 32 Ills. 13; 
 Benz V. Hines, 3 Kansas, 390; Dale v. 
 Shirley, 5 B. Mon. (Ky.) 492; Griffith 
 7'. Judge, 49 Mo. 536 ; Swofford v. Gar- 
 nion, 51 Miss. 348; Barrett v. Bath 
 Paper Co., 13 Su. Car. 128; Underwood 
 7'. Mc\'eigh, 23 Gratt. (Va.) 409. But 
 the sale will not be \itiated by the cred- 
 itor's procuring a third person to bid a 
 sum not less than the amount of the 
 debt and the expenses : Dexter v. Shep- 
 ard, 117 Mass. 480. And see Simrall 
 V. Jacob, 14B. Mon. (Ky.) 502; Natchez 
 
 Ins. Co. V. Helm, 13 Sm. & M. (Miss.) 
 182; Missisquoi Bank v. Sabin, 48 Vt. 
 239. A conditional agreement for the 
 sale of land under a levy, for at least a 
 certain sum, with the right to more if 
 the sheriff can get it, is not fraudulent 
 in itself, Parsons v. Black, 2 Grant (Pa. 
 Cas.) 339, though if oral it is within the 
 statute of frauds : Howell v. Howell, i 
 Harp. Eq. (So. Car.) 156.] 
 
 (J) Fuller u. Abrahams, 3 B. & B. 
 116; 6 }iIoore, C.P. 316; cf. 2 Kent, 
 Com. 539; and ante, p. 121. 
 
 (m) Mason v. Armitage, 13 Ves. 25. 
 
 (r') Twining v. Morrice, 2 Bro. Ch. 
 326. As to knock out sales, see «mA', p. 
 121. [So where the purchaser procured 
 a judicial sale to be made without notice 
 to the complainant, and thus secured 
 the property at a grossly inadequate 
 price : Pattison v. Josselyn, 43 Miss. 
 
 373-] 
 
 (jc) Musgrove 
 & P. 469; 2 JIoo. 
 P- 3- 
 
 :'. Robinson, 8 C. 
 & R. 92. Cf. ante. 
 
 [' There should be no secret arrangement, such as the making of bids by a 
 private signal, between any bidder and the auctioneer; fur the effect of this would 
 be to give to that l)idder an advantage over the others: Conover v. Walling, 15 
 N.J. Eq. (2 McCart.) 173.] 
 
 166 
 
CHAP. VIII.] THE CONTRACT. I43-I44* 
 
 [143] 
 
 CHAPTER VIII. 
 
 THE CONTRACT, AND THE FORMALITIES REQUIRED BY THE 
 STATUTE OF FRAUDS. 
 
 The Statute of Frauds. — '' For prevention of many fraudu- 
 lent practices which are commonly endeavoured to be upheld 
 by perjury and subornation of perjury " the law has provided, 
 in what is called the " Statute of Frauds " {a), that certain 
 formalities shall be necessary, in some cases to the enforce- 
 ment, in others to the validity, of contracts. 
 
 It was formerly doubted {b) whether sales by auction were 
 within the meaning of the statute, as it was thought that the 
 publicity of such sales ought to be sufficient to guard against 
 fraud ; and questions founded upon this doubt have at differ- 
 ent times been brought before the courts. It is now, how- 
 ever, clearly settled that auction-sales, with the exception of 
 such as are held by order of the Court (c), are within the 
 statute,^ and that they, therefore, require compliance with 
 the formalities imposed by it, as [144] much as do sales of 
 
 (a) 29 Car. II. c. 3 (made perpetual Williams, 35 Ala. 503 ; Halleck v. Guy, 
 
 by I Jac. II. c. 17, s. 5). It has been 9 Calif. 181 ; Watson v. Violett, " Du- 
 
 said that Lord Chief Justice Hale drew vail (Ky.) 332 ; Warfield j. Dorsey, 39 
 
 up this act, but Lord Mansfield is re- Md. 299 ; Armstrong v. Vroman, 1 1 
 
 ported, in Wyndham u. Chetwynd, I Minne. 220; Emley v. Drum, 36 Penn. 
 
 Burr. 414, 418, to have doubted the St. 123; Fulton v. Moore, 25 Penn. St. 
 
 accuracy of the statement. 468 ; King v. Gunnison, 4 Penn. St. 
 
 {b) Simon v. Metivier, i Bl. R. 599. 171; Nichol v. Ridley, 5 Yerg. (Tenn.) 
 
 (<r) See Jiosl, p. 244. [Smith v. Ax- 63; Tate v. Greenlee, 4 Dev. Law 
 
 nold, 5 Mason, C.C. 414, 420; Huttonz/. (Nor. Car.) 149.] 
 
 [' People V. White, 6 Calif. 75; Bozza v. Rowe, 30 Ills. 198; Baker v. Jame- 
 son, 2 J.J. Marsh (Ky.) 547; Brock v. Jones, 8 Texas, 78. And though the 
 purchaser himself need not sign, Bleecker v. Franklin, 2 E.D. Smith (N.Y.) 93, 
 yet a memorandum of the sale not signed by the auctioneer will not take the case 
 out of the statute : Rucks v. Barbour, 48 Ind. 274, though if the sale was made by 
 a sheriff under an execution his signature to his return setting out the sale has 
 been allowed to cure the lack of a signature to his memorandum of the sale : 
 Secrist v. Twilty, i McMuU. (So. Car.) 255.] 
 
 167 
 
"144 
 
 THE CONTRACT. 
 
 [part I. 
 
 less publicity (d). And it is the duty of the auctioneer to 
 take reasonable and proper care that the contract of sale is 
 binding under the statute {e). 
 
 The 4th and 17th sections of the Statute of Frauds are 
 the only ones that have an important bearing on the subject- 
 matter of this work. 
 
 The former enacts, inter alia, "that no action shall be 
 brought . . . upon any contract or {sic) sale (/) of lands, 
 tenements or hereditaments, or any interest in or concerning 
 them, unless the agreement upon which such action shall be 
 brought, or some memorandum or note thereof, shall be in 
 writing and signed by the party to be charged therewith or 
 some other person thereunto by him lawfully authorized." 
 
 The latter section (g) enacts that "no contract for the 
 sale of any goods, wares or merchandises for the price of 
 ;!^io sterling or upwards shall be allowed to be good, except 
 (i) the buyer shall accept part of the goods so sold and 
 actually receive the same, or (2) give something in earnest to 
 
 ((/) Blagden v. Bradbear, 12 Ves. 
 466; Higginson J'. Clowes, 15 Ves. 516; 
 Kenworthy v. Schofield, 2 B. & C. 945. 
 [Sanderlin v. Roman Catholic Church, 
 R.M. Charlt. (Ga.) 551; Bell v. Owen, 
 8 Ala. 312; Burke v. Haley, 2 Gilman 
 (111.) 614; Gossard z'. Ferguson, 54 Ind. 
 519; Hadden v. Johnson, 7 Ind. 394; 
 Ennis v. Waller, 3 Blackford (Ind.) 
 472; Pike z/. Balch, 3S Maine, 302; 
 Spencer v. Pearce, 10 Gill & J. (Md.) 
 294; Dewall V. Peach, I Gill (Md.) 
 272; Bent V. Cobb, 9 Gray (Mass.) 397; 
 Davis V, Rowell, 2 Pick. (Mass.) 64; 
 Alexander v. Merry, 9 Mo. 510; Hart 
 V. Hector, 13 Mo. 497; Evans v. Ashley, 
 8 Mo. 177; Bicknall v. Barnes, 25 How. 
 Pr. (N.Y.) 486; Jackson v. Catlin, 2 
 Johns. (N.Y.) 248; Elfe v. Gladsden, 
 2 Rich. (So. Car.) 373; Christie 7/. Simp- 
 son, I id. 407; Davis v. Robertson, I 
 Mill Const. (So. Car.) 71; Brent v. 
 Leigh, 6 Leigh (Va.) 16.] 
 
 (f) Per Blackburn, J., in Peirce V. 
 Corf, L.R. 9 Q.B. 210, 214; 43 L.J.Q.B. 
 52. [But there can be no presumption, 
 even against the auctioneer that he has 
 
 discharged this duty. Accordingly, in 
 an action against an auctioneer upon a, 
 contract of sale made by him, in which 
 he sets up in defence that there was no 
 written memorandum of the contract 
 and that it was therefore void by the 
 statute of frauds, the fact that the law 
 imposes upon auctioneers the duty of 
 making memoranda of their sales and 
 the presumption in favor of official duty, 
 cannot supply the place of proof that 
 the contract was reduced to writing. 
 Nor will the fact that a deposit in part 
 payment of the purchase-money was 
 required by the conditions of sale to be 
 made, and that the auctioneer himself 
 waived this condition, prevent him from 
 showing that there was no part payment 
 of the price such as to take the case out 
 of the statute : Baltzen v. Nicolay, 53 
 N.Y. 467.] 
 
 (y) For remarks on these words, 
 see Sugd. 123; Broom, C.L. 384. 
 
 (^g) This section is numbered as the 
 i6th in the revised edition of the statutes, 
 but, it being better known as the 17th, 
 the old numbering has been retained. 
 68 
 
CHAP. VIII. J THE CONTRACT. I45* 
 
 bind the bargain or in part of payment, or (3) that some note 
 or memorandum in writing of the said bargain be made and 
 signed by the parties to be charged by such contract, or their 
 agents thereunto lawfully authorized." 
 
 In consequence of doubts which had arisen upon the con- 
 struction of the 17th section it was enacted by 9 Geo. IV. 
 c. 14, s. "J {h), that the 17th section of the Statute of Frauds 
 [145] " shall extend to all contracts for the sale of goods of 
 the value oi £^\o sterling and upwards, notwithstanding the 
 goods may be intended to be delivered at some future time, 
 or may not, at the time of such contract, be actually made, 
 procured or provided, or fit or ready for delivery, or some act 
 may be requisite for the making or completing thereof, or 
 rendering the same fit for delivery." 
 
 This section and the 17th section of the Statute of Frauds 
 are to be read together, and the words " of the value " in the 
 former must be substituted for the words "for the price " in 
 the latter (?). The value, it seems, may be an amount to be 
 ascertained in a manner indicated by the contract (_;") ; nor is 
 it material that the price agreed upon was enhanced by the 
 fact that the vendor had to incur expense in causing the 
 goods to be conveyed to the purchaser (/&). 
 
 Before discussing the effect of the 4th and 17th sections 
 of the Statute of Frauds, it may be observed that, while the 
 requirements of the former section can only be satisfied by 
 a written memorandum, those of the latter may be complied 
 with in any one of three ways, compliance with either of the 
 first two of which will let in parol evidence of the whole con- 
 tract (/). Moreover, the "4th section does not avoid con- 
 
 (Ji) Commonly called Lord Tenter- {k") Astey v. Emery, 4 M. & S. 262. 
 
 den's Act. (/) Tomkinson v. Staight, 17 C.B. 
 
 (0 Harmanz/. Reeve, 18 C.B. 587; 697; 25 L.J.C.P. 85. [Garfield ». Paris, 
 
 25 L.J.C.P. 257. 96 U.S. 557; Calkins v. Lockwood, 17 
 
 (/) Watts V. Friend, 10 B. & C. 446. Conn. 174; Bass v. Walsh, 39 Mo. 192; 
 
 " Where the parties have ommitted to Williams v. Evans, id. 201 ; Bissell v, 
 
 fix a price, it may be open to a jury to Balcom, 39 N.Y. 275 ; Rappleye v. 
 
 ascertain the value in dispute" — per Adee, 65 Barb. (N.Y.) 589; Green v. 
 
 Tindal, C.J., in" Hoadly v. McLaine, 10 Merriam, 28 Vt. 801.] Provided that 
 
 Bing. 482, 487; and see post,y>. 152. the contract has not been reduced into 
 
 [See Bowman v. Conn, 8 Ind. 58; writing; see <zK/i', p. 45 ; and provided 
 
 Brown v. Sanborn, 21 Minne. 402.] that the contract is to be performed 
 
 169 
 
'146 
 
 THE CONTRACT. 
 
 [part I. 
 
 tracts not signed in the manner prescribed ; it only precludes 
 any right of action. The 17th section is stronger, [146] and 
 avoids contracts not made as the section prescribes " (in). 
 This distinction is important ; for a parol agreement relating 
 to land, when executed, is not invalidated by the 4th section ; 
 and in some cases a Court of Equity will decree specific 
 performance of such a contract, when it has been partly 
 executed («). 
 
 "The words 'lands, tenements and hereditaments' appear 
 ' to have been used by the legislature to denote a fee simple, 
 and the words 'any interest in or concerning them' to de- 
 note a chattel interest, or some interest less than the fee 
 simple " ip). A contract for a lease (/), or to give up pos- 
 session {q) of a house, or for the sale of a business, with pos- 
 session of the premises where it is carried on (r), is within 
 the section ; but a contract for the use of a graving dock, the 
 control and management of which remains with the party 
 letting it, is not is). The fact that the party contracting 
 
 within a year; see notes to Peter v. 
 Compton, I Sm. L.C. 335. 
 
 (?«) Per Bosanquet, J., in Lay- 
 thoarp V. Bryant, 2 Bing. N.C. 735, 
 747; 2 Hodg. 25; cf. Leroux z/. Brown, 
 12 C.B. 801, 825; 22 L.J.C.P. i; 16 
 Jur. 1021. 
 
 («) Fosl, p. 197. 
 
 (0) Fli- Littledale, J., in Evans v. 
 Roberts, 5 B. & C. 829, 839; cf. Smith 
 V. Surman, 9 B. & C. 561, 573. [Thus, 
 a contract for the sale of a preemption 
 right, which is merely a right of tempo- 
 rary occupancy with the privilege of 
 future purchase, is Mnthin the statute : 
 Lester v. White, 44 Ills. 464. And a 
 verbal agreement to buy out the rights 
 of a purchaser under an executory agree- 
 ment for the purchase of real estate is 
 within the statute : Smith v. Burnham, 
 3 Sumner, C.C. 435. The same rule 
 applied to a widow's right of dower : 
 Marten v. Wharton, 38 Ala. 637 ; Wright 
 V. De Groff, 14 Mich. 164; Gordon v. 
 Gordon, 56 N.FI. 170; Keeler v. Tat- 
 ncU, 23 X.J. Law ("3 Zab.) 62; Shotwell 
 V. Sedam, 3 Ohio, 5 ; Hall v. Hall, 
 
 2 McCord. Ch. (So. Car.) 269; and 
 to executory agreements for leases : 
 Delano v. Montague, 4 Cush. (Mass.) 
 42; Stackberger i'. Mosteller, 4 Ind. 
 461 ; and to an agreement for the pos- 
 session of real estate : Gilbert v. Bulkly, 
 5 Conn. 262; Colman -v. Packard, 16 
 Mass. 39; Howard v. Easton, 7 Johns. 
 (N.Y.) 205; Whittemore v. Gibbs, 24 
 N.H. 4S4; Miranville v. Silverthorn, I 
 Grant (Pa. Cas.) 410. But a writtten 
 or oral agreement to convey land may 
 be assigned by a verbal agreement : 
 Sutton V. Sears, 10 Ind. 223; Norton 
 V. Webb, 35 Maine, 218 ; Brown v. 
 Jones, 46 Barb. (N.Y.) 400; Currier 
 %•. Howard, 14 Gray (JNIass.) 511.] 
 
 (/) Vaughan v. Hancock, 3 C.B. 
 766. [Miller v. Specht, n Penn. St. 
 
 449-] 
 
 {q) Kelly V. Webster, 12 C.B. 283; 
 21 L.J.C.P. 163. 
 
 (?-) Smart v. Harding, 15 C.B. 652; 
 24 L.J.C.P. 76; Hodgson v. Johnson, 
 E.B. &E. 685; 28L.J.Q.B. 88. 
 
 (J) Wells V. Kingston-upon-HuU, 
 L.R. 10 C.P. 402; 44 L.J.C.P. 257. 
 70 
 
CHAP. VIII.] THE CONTRACT. I47* 
 
 to sell an interest in land has not himself an interest in it, 
 but merely acts as broker or agent, is immaterial (i). 
 
 There is not often much difftculty in determining whether 
 certain things are goods or not. Tenants' fixtures are con- 
 sidered to be goods, when severed from the freehold (?/) ; and 
 a recent case has laid down the following rule as to [147] 
 growing crops (w) : "Where the subject-matter of the con- 
 tract is growing in the land at the time of the sale, then, if, 
 by the contract, the thing sold is to be delivered at once by 
 the seller, the case is not within the (4th) section. Another 
 case is where, although the thing may have to remain in the 
 ground some time, it is to be delivered by the seller finally, 
 and the purchaser is to have nothing to do with it, until it 
 is severed ; and that case also is not within the (4th) sec- 
 tion. Then there comes the class of cases where the pur- 
 chaser is to take the thing away himself. In such a case, 
 where the things are fructus industriales {w), then, although 
 they are still to derive benefit from the land after the sale, 
 in order to become fit for delivery, nevertheless, it is merely 
 a sale of goods, and not within the (4th) section. If they are 
 
 [This is like a contract for board and They can be seized by the sheriff under 
 
 lodging in certain specified rooms, a^J.^/a., and go to the executor, and not 
 
 which does not create a lease, and is to the heir. Wheat, potatoes, turnips, 
 
 not -within the statute: White v. May- &c.: Jones -o. Fhnt, 10 A. & E. 753; 2 
 
 nard, III Mass. 250; Wilson i/. Martin, P. &D. 594; Dunne z/. Ferguson, Hayes, 
 
 1 Denio (N.Y.) 602.] 540; and also, it seems, hops: Rodwell 
 
 (J) Horsey v. Graham, L.R. 5 C.P. v. Phillips, 9 M. & W. 501, 503, are 
 
 9; 39 L.J.C.P. 58. [See Mather v. fructus industriales. [Marshall z/. Fer- 
 
 Scoles, 35 Ind. 2.] guson, 23 Calif 65; Sherry v. Picken, 
 
 (?<) Minshall v. Lloyd, 2 M. & W. 10 Ind. 375; Bricker v. Hughes, 4 Ind. 
 
 450, 459; Dalton V. Whittem, 3 Q.B. 146; Bryant v. Crosby, 40 Maine, 9; 
 
 961; [Bostvvick I'. Leach, 3 Day (Conn.) Whitmarsh v. Walker, i Met. (Mass.) 
 
 476;] but not when they are unsevered; 313; Kingsleyz;. Holbrook, 45N.H.313, 
 
 %te. post, p. 149, and cf ante, p. 63. 318, 319; Andrew !<. Newcomb, 32 N.Y. 
 
 {y) Per Brett, L.J., in Marshall v. 417; Green v. Armstrong, i Denio (N. 
 Green, i C.P.D. 35, 42; 45 L.J.Q.B. Y.) 550; Buck z'. Pickwell, 27 Vt. 157.] 
 '53> '55- [S^^ White v. Foster, 102 From the cases cited it appears that em- 
 Mass. 375; Boyce v. Washburn, 4 Hun blements, as to which see Wms. Exors. 
 (N.Y.) 792; Bostwick v. Leach, 3 Day 716, come under the same rule as fruc- 
 (Conn.) 476 ; Yale v. Seeley, 15 Vt. tus industriales, which, in fact, they in- 
 221; Daniels v. Bailey, 43 Wise. 566.] elude. Growing crops are treated in a 
 
 (_w) I.e. corn and other growth of similar manner to fixtures in the Bills 
 
 the earth which is produced, not spon- of Sale Act, 1878; see ante, p. 63, 
 
 taneously, but by labour and industry, note (.r). 
 
 171 
 
*I48 THE CONTRACT. [PART 1. 
 
 not fructtis indiistriales {x) then the question seems to be 
 whether it can be gathered from the contract that they are 
 intended to remain in the land for the advantage of the pur- 
 chaser,' and are to derive [148] benefit from so remaining ; 
 then part of the subject-matter of the contract is the interest 
 in land, and the case is within the (4th) section. But if the 
 thing, not \>t.\Vi^ fnictus indiistriales, is to be delivered imme- 
 diately, whether the seller is to deliver it, or the buyer is to 
 enter and take it himself, then the buyer is to derive no benefi.t 
 from the land, and consequently the contract is not for an in- 
 terest in the land, but relates solely to the thing sold itself." ^ 
 Neither section extends to goods sold for a less price than 
 £^\o (j) ; therefore an auction-sale of these is completed by 
 the bidding and its acceptance. And, as a separate contract 
 arises in respect of each lot sold at an auction, these sections 
 do not apply where several lots are knocked down at distinct 
 times and for distinct sums to the same bidder, each of them 
 being individually under /^lO, although the amount of the 
 
 (^■) £.^. clover : Graves v. Weld, 5 would be) ; standing underwood ; Scor- 
 
 B. & Ad. 105; mowing grass: Crosby rell z'. Boxall, I Y. & J. 396; Teal v. 
 
 V. Wadsworth, 6 East, 602; of. Jones z;. Anty, 2 B. & B. gg; poles or timber; 
 
 Flint, 10 A. & E. 753, 759 (where it was growing fruit : Rodwell v, Phillips, 9 
 
 held that a contract of agistment, i.e. M. & W. 501. 
 
 where the owner of a pasture takes in ( i') Unless the agreement is not to 
 
 cattle to be fed, is not an interest in be performed within a year, on which 
 
 land, though a contract to sell the feed, point see notes to Peter v. Compton, I 
 
 to be taken by the cattle of the buyer, Sm. L.C. 335. 
 
 [' See Byassee v. Reese, 4 Met. (Ky.) 372 ; Huff v. McCauley, 53 Penn. St. 
 206.] 
 
 \^ In Massachusetts, a verbal contract for the sale of standing wood or timber 
 does not convey to the vendee any interest in the lands. It is construed as pass- 
 ing an interest in the trees when they shall be severed from the freehold : Giles v. 
 Simonds, 15 Gray, 441 ; Claflin v. Carpenter, 4 Met. 580. The same doctrine as that 
 laid down in Marshall v. Green, supra, n. v., prevails in Maine ; Cutler v. Pope, 13 
 Maine, 377; Kentucky, Byasse v. Reese, 4 Met. (Ky.) 372; Cain v. McGuire, 13 B. 
 Mon. 340; Maryland, Smith v. Bryon, 5 Md. 141, 151, and Pennsylvania, McClin- 
 tock's Appeal, 71 Penn. St. 365; but it has been rejected in Indiana: Owens v. 
 Lewis, 46 Ind. 488; New Hampshire, Howe v. Batchelder, 49 N.H. 204; Kingsley 
 V. Holbrook, 45 N.H. 313; Putney v. Day, 6 N.H. 430; New Jersey, Slocum v. 
 Seymour, 36 N.J. Law, 138; and New York, Green v. Armstrong, i Denio, 550; 
 Warren v. Leland, 2 Barb. 613. For the rule in Vermont, see Sterling v. Baldwin, 
 42 Vt. 306, somewhat modifying the doctrine laid down in Buck v. Pickwell, 27 
 Vt. 157.] 
 
 172 
 
CHAP. VIII.] 
 
 THE CONTRACT. 
 
 149* 
 
 whole purchase-money may be much more than ;£io {z). 
 But it is otherwise, if they are knocked down to him, or 
 subsequently treated as having been knocked down to him, 
 at one sum or as one lot {a), or if they are so connected 
 together that the possession of all is essential to the enjoy- 
 ment of any one or more of them {b). 
 
 Nor does either section apply to contracts for the sale 
 of [149] foreign stock {c), railway scrip {d), or shares in 
 a joint-stock bank {e) or a railway (/), canal navigation {g) 
 or water-works company {h), or a mining company con- 
 ducted on the cost-book principle (?), or of the right to 
 
 (2) Emerson v. Heelis, 2 Taunt. 
 38; James v. Shore, i Stark. 426; Roots 
 V. Lord Dormer, 4 B. & Ad. 77; Wat- 
 ling i/. Horwood, 12 Jur. 48; cf. Cous- 
 ton V. Chapman, L.R. 2 H.L. Sc. 250, 
 252; Levvin v. Guest, I Russ. 325. 
 [In this country such purchases are 
 considered as constituting an entire 
 contract, though the goods are struck 
 off separately and at distinct prices; 
 and a delivery and acceptance of part 
 of the goods will render the sale of the 
 whole valid under the statute of frauds, 
 although the goods belong to different 
 owners : Mills v. Hunt, 1 7 Wend. 
 (N.Y.) 333; s.c, affirmed on error, 
 20 Wend. (N.Y.) 431; Coffinan v. 
 Hampton, 2 Watts & S. (Penn.) 377. 
 Nor will it make any difference that 
 the sale extended over several days : 
 Jenness v. Wendell, 51 N.H. 63.] 
 
 (a) Thus, where three lots of one 
 hundred railway shares each were sold 
 at an auction, but the bill of parcels 
 sent to the purchaser described the 
 transaction as a sale of " 300 shares . . . 
 £1$"; it was held that there was evi- 
 dence that the contract was entire : 
 Franklyn v. Lamond, 4 C.B. 637; 16 
 L.J.C.P. 221; II Jur. 780; see also 
 Baldey v. Parker, 2 B. & C. 37; 3 D. 
 & R. 220; Champion v. Short, i Camp. 
 52; Mills V. Hunt, 20 Wend. 431 ; 
 Bigg V. Whisking, 14 C.B. 195; 2 
 C.L.R. 617. [Oilman v. Hill, 36 N.H. 
 311; Field V. Runk, 22 N.J. Law, 525; 
 Allard v. Greasert, 61 N.Y. i; Van 
 
 Woert V. Albany & Susquehanna R.R. 
 Co., 67 N.Y. 538.] 
 
 (/;) Chambers v. Griffiths, I Esp. 
 150; Gibson v. Spurrier, Peake, Add. 
 Cas. 49. 
 
 (c) Pawle V. Gunn, 4 Bing. N.C. 
 445; Heseltine v. Siggers, i Ex. 856; 
 18 L.J. Ex. 166. 
 
 {d) Knight v. Barber, 16 M. & W. 
 66; 16 L.J. Ex. 18. 
 
 {e) Humble z/. Mitchell, n A. & E. 
 205; 3P. &D. 141. 
 
 (/) Bradley v. Holdsworth, 3 M. & 
 W. 422; I H. & H. 156; Duncuft v. 
 Albrecht, 12 Sim. 189, 199; Bowlby v. 
 Bell, 3 C.B. 284; Tempest v. Kilner, 3 
 C.B. 249. 
 
 (g) Latham v. Barber, 6 T.R. 67. 
 But in some cases the act of parliament 
 constituting the company makes the 
 shares real property, as in the case of 
 Droidwich, River Don and River Avon 
 Canal shares and New River shares. 
 
 {h) Bligh V. Brant, 2 Y. & C. 268; 
 cf. Myers v. Perigal, 2 De G.M. & G. 
 599; 22 L.J. Ch. 431; Edwards !». Hall, 
 6 De G.M. & G. 74; 25 L.J. Ch. 82, de- 
 cided on the Mortmain Act. 
 
 (J) At any rate in the absence of 
 evidence that the shareholders take a 
 direct interest in the freehold : Watson 
 V. Spratley, 10 Ex. 222; Powell v. Jes- 
 sop, 18 C.B. 336; Walker v. Bartlett, 18 
 C.B. 845 ; Hayter v. Tucker, 4 Kay & J. 
 243. But Westminster Improvement 
 Bonds are an interest in land : Tappin 
 V. Lomas, 16 C.B. 145. 
 
 73 
 
*I50 THE CONTRACT. [pART I. 
 
 remove tenants' fixtures when unsevered from the free- 
 hold (y).i 
 
 The requirements of the 4th and 17th sections with regard 
 to the memorandum in writing will be examined together, 
 the same rules, with one exception {k), applying equally to 
 both. 
 
 The only difference between an agreement and a' note of 
 an agreement is that, in the one instance, a formal agreement 
 is meant, and, in the other, something not so particular in 
 form and technical accuracy, but still containing the essen- 
 tials of an agreement (/). 
 
 [150] The Essentials of the Agreement. — The essentials which 
 must appear on the agreement are : who are the contracting 
 parties; the subject-matter of the contract, comprising the 
 promise and the consideration ; and the consent of the par- 
 ties to the terms of the contract (w). 
 
 (J) Lee V. Gaskell, I Q.B.D. 700; things. The statute presupposes a con- 
 
 45 L.J.Q.B. 540; cf. Pinner T.Arnold, tract by parol: Lerned !<. Wannemacher, 
 
 Tyrw. & Gr. i. But so long as the ten- 9 Allen (Mass.) 412, 416.] 
 ant has a right to remove them, they (tit) Wain v. Warlters, 5 East, 10; 
 
 may be seized by the sheriff as goods : 2 Sm. L.C. 241 ; Laythoai-p v. Bryant, 
 
 HaUen». Runder, I C.ISI.&R. 266, 275; 2 Bing. N.C. 735, 742; 2 Hodg. 25; 
 
 3 Tyrw. 959; Minshall v. Lloyd, 2 M. Milnes v. Gery, 14 Ves. 400, 406; 
 
 & W. 451, 459; and when severed they Roberts v. Tucker, 3 Ex. 632; Saunders 
 
 are goods: anle, p. 146. v. Wakefield, 4 B. & Aid. 595. In the 
 
 (i) See/oi/, p. 152. case of a guarantee, however, the con- 
 
 (/) Williams -'. Lake, 29 L.J.Q.B. I, sideration need not now be stated: see 
 
 3; 2 E. & E. 349; Vandenbergh v. 19 & 20 Vict. c. 97, s. 3. [The memo- 
 
 Spooner, L.R. i Ex. 316. [Gowen 7/. randum must express the essential terms 
 
 Ivlous, lOI Mass. 449; Nichols v. John- of the contract, with sufficient certainty 
 
 son, 10 Conn. 192; Farvvell i'. Lowther, to be intelligible without the necessity 
 
 18 Ills. 252; Sheid v. Stamps, 2 Sneed of resorting to parol evidence to show 
 
 (Tenn.) 172; Bailey z'. Ogden, 3 Johns, the intentions of the parties: Bariy v. 
 
 (N.Y.) 399; Harvey v. Stevens, 43 Vt. Coombe, i Peters, 640; Ballingall v. 
 
 653; Salmon Falls Manufacturing Co. Bradley, 16 Ills. 373; Ridgway v. In- 
 
 V. Goddard, 14 Howard, 446; Grant v. gram, 50 Ind. 145; Oakman v. Rogers, 
 
 Naylor, 4 Cranch, 224. The contract 120 Mass. 214; Hazard v. Day, 14 
 
 itself, and the memorandum which is Allen (Mass.) 4S7; Abeel v. Radcliff, 
 
 necessary to its validity under the stat- 13 Johns. (N.Y.) 297; Holms v. John- 
 
 ute of frauds, are in their nature distinct ston, 12 Ileisk. (Tenn.) 155.] 
 
 [' In the United States agreements for the sale of such choses in action are 
 generally considered to be within the statute of frauds; on the principle, as stated 
 by Wilde, J., in Baldwin v. AVilliams, 3 Met. (Mass.) 365, that merx est quicquid 
 vendi potest. See Riggs v. Magruder, 2 Cranch C.C. 143; Hudson v. Weir, 29 
 Ala. 294; North v. Forest, 15 Conn. 400; Walker v. Supple, 54 Ga. 17S; Pray 
 
 174 
 
CHAP. VIII.] THE CONTRACT. I50* 
 
 The Parties. — Both parties must be specified, either by 
 name or by a sufficient description («).' Where there is a 
 sufficient description of the vendor, it is not necessary that 
 his name should be inserted in the agreement {o) ;2 but, 
 unless there is good reason to the contrary, it is, as a rule, 
 advisable, in order to avoid any question as to the sufficiency 
 of the description^ to insert his name, if it does not appear 
 on the particulars {p). Simply signing as agent for "my 
 client " (^), "my principal," "my friend " (r), or "the ven- 
 dor" {s), is not, by itself, a sufficient description of the party 
 alluded to. The following descriptions are, however, suffi- 
 ciently definite to admit parol evidence to identify the party 
 to whom they refer : " The executor of " A. B. (/) ; " a trustee 
 
 (k) Williams v. Lake, ubi supra; name of either the vendor or the pur- 
 Williams V. Jovdan, 6 Ch. D. 517; 46 chaser: Fessenden v. Mussey, n Cush. 
 L.J. Ch. 681; Donnison z-. People's (Mass.) 127; Pinckney v. Hagadorn, 
 Cafe Co., W.N. 1881, 107. i Duer (N.Y.) 89.] 
 
 ip) Hood V. Lord Barrington, L.R. ' (^q) Skelton v. Cole, I De G. & J. 
 
 6 Eq. 218, 221; Beer w. London c& Paris 587. 
 
 Hotel Co., L.R. 20 Eq. 412, 427. (r) Rossiter v. Miller, 3 App. Cas. 
 
 [Gowen v. Klous, loi Mass. 449; 1124,1141; 48 L.J. Ch. 10. 
 
 Thornton v. Kelly, II R.I. 498.] (i) Potter -v. Duffield, L.R. 18 Eq. 
 
 (/) See Dart, 218, commenting on 4; 43 L.J. Ch. 472. 
 
 the fact that the vendor's name is seldom (J) Hood v. Lord Barrington, L.R. 
 
 disclosed. [The memorandum will not 6 Eq. 218. 
 be vitiated by a slight mistake in the 
 
 ■V. Mitchell, 60 Maine, 430; Gooch v. Holmes, 41 Maine, 523; Colvin v. WilHams, 
 3 Harr. & J. (Md.) 38; Tisdale v. Harris, 20 Pick. (Mass.) 9, 13; Smith v. Eouck, 
 33 Wise. 19. But there is a tendency to limit the meaning of the words "goods " 
 to such personal property, other than wares and merchandise, as are usually trans- 
 ferred by sale and delivery: Beers v. Crowell, Dudley (Ga.) 29; Whittemore v. 
 Gibbs, 24 N.H. 484; Somerby ■v. Buntin, 118 Mass. 279.] 
 
 [' The name of the purchaser must appear by the memorandum. Another 
 party cannot be held thereon by proof that the nominal purchaser was his agent 
 (but see Gray v. Case, 51 Mo. 463), or that he has by agreement been substituted 
 for the original bidder: Arden v. Brown, 4 Cranch C.C. 121 ; Gill v. Bicknell, 2 
 Cush. (Mass.) 355; nor will a subsequent insertion by the auctioneer's partner of 
 the name of another purchaser bind the party whose name is thus inserted : 
 Walker v. Herring, 21 Gratt. (Va.) 678. But such a substituted purchaser may 
 enforce the contract against the vendor : Bailey v. Le Roy, 2 Edwards Ch. (N.Y.) 
 514-] 
 
 [' If the auctioneer's memorandum does not show the name of the vendor, 
 either by statement or by reference, it cannot be aided through parol evidence 
 and another writing not referred to in the memorandum, and the sale will not be 
 valid : Knox v. King, 36 Ala. 367. But see Walsh v. Barton, 24 Ohio St. 28.] 
 
*I5I THE CONTRACT. [PART I. 
 
 selling under a trust for sale" iu) ; "the owner" ; "the pro- 
 prietor" (v) ; [151] "the mortgagee" (w) ; "the company in 
 possession of the premises " (x). If the name or a sufficient 
 description of the vendor does not appear on the agreement, 
 the auctioneer runs the risk of himself incurring liability as 
 principal, if the vendor refuse to perform the contract {y). 
 
 The Promise. — The promise must be stated. Where the 
 agreement for a lease of certain premises did not state the 
 intended duration of the term (z), or the day from which it 
 was to commence («), or the time at which possession was to 
 be given (b), specific performance was refused. But descrip- 
 tions such as " Mr. O.'s house " (c), "the intended new public- 
 house at Putney'' {d), "property purchased . . at Sun Inn, 
 Pinxton " (the date being mentioned) (,?), " your wool " (/") 
 are sufficiently definite to render parol evidence admissible 
 to identify the property.^ 
 
 (ti) Catling I/. King, 5 Ch. D. 660; {b') Donnison v. People's Cafe Co., 
 
 46 L.J. Ch. 384; Taylor v. Salmon W.N. iSSi, 107. 
 
 W.N. 1881, 102. (f) Ogilvie v. Foljambe, 3 Mer. 53; 
 
 (v) Sale I/. Lambert, L.R. 18 Eq. I ; cf. Cowley z). "Watts, 22 L.J. Ch. 591; 
 
 43 L.J. Ch. 470; cf. Thomas i'. Brown, 17 Jur. 172. [Hurley v. Brown, 98 
 
 I Q.B.D. 714; 45 L.J.Q.B. 811. Mass. 545; Atwood v. Cobb, 16 Pick. 
 
 (av) Rossiter v. Miller, tihi supra; (Mass.) 227; Phelps v. Sheldon, 13 id. 
 
 and see Shardlow I/. Cotterell, 18 Ch. D. 50; Bird v. Richardson, S id. 252; 
 
 280, 292; 50 L.J. Ch. 613, 618. Nichols v. Johnson, 10 Conn. 192.] 
 
 (.*■) Commins v. Scott, L.R. 20 Eq. {li') Wood v. Scarth, 2 Kay & J. 33. 
 
 II ; 44 L.J. Ch. 563; Beer v. London [Cherry v. Long, Phillips Law (Nor. 
 & Paris Hotel Co., L.R. 20 Eq. 412. Car.) 466.] 
 
 (_)') Cf. ante, p. 129. {e) Shardlow v. Cotterell, 18 Ch. D. 
 
 (3) Fitzmaurice v. Bayley, g H.L. 280; 50 L.J. Ch. 613. In this case no 
 
 78. [Abeel v. Radchff, 13 Johns, other property was being sold. Cf. cases 
 
 (N.Y.) 297; Hodges v. Howard, 5 R.I. cited in notes (jr) & (_r) ante, p. 70. 
 149.] (/) Macdonald v. Longbottom, i 
 
 (a) Nesham o. Selby, L.R. 7 Ch. E. & E. 977; 29 L.J.Q.B. 256; cf. 
 
 406; 41 L.J. Ch. 551; Marshall z'. Ber- McCollin v. Gilpin, 6 Q.B.D. 516; 29 
 
 ridge, 19 Ch. D. 233; 30 W. R. 93. W.R. 40S; 44 L.T.N.S. 914. 
 
 [' If the description of the property corresponds with that of property owned 
 by the vendor, it will be presumed to have been intended to apply to such prop- 
 erty ; Hurley v. Brown, 98 Mass. 545; Todd z;. Taft, 7 Allen (Mass.) 371. But 
 the description must be sufficient to identify the property : Barry v. Coombe, i 
 Peters, 640; Williams v. Morris, 95 U.S. 444; Carmack v. Masterson, 3 Stew. & P. 
 (Ala.) 411 ; Baldwin v. Kerlin, 46 Ind. 426; Kay v. Curd, 6 B. Mon. (Ky.) 100; 
 Scanlan v. Geddes, 12 Mass. 115; Fisher 0. Kuhn, 54 Miss. 480; Force v. 
 Dutcher, 18 N.J. Eq. (3 C. E. Green) 401; Ferguson v. Staver, 33 Penn. St. 
 411; Adams v. Scales, i Baxter (Tenn.) 337.] 
 
 176 
 
CHAP. VIII.] THE CONTRACT. 1 5 2* 
 
 The Consideration. — The price to be given must appear {g) 
 or be capable of being ascertained with certainty. A mere 
 receipt for the [152] deposit which does not state the pro- 
 portion the deposit bears to the price is not enough {h). But 
 an agreement to sell at a fair valuation may be enforced (z) ; i 
 and an agreement for sale at a specified price and a fixed per- 
 centage on any profits that might be realized, should the 
 purchaser resell within a given time, was held, the purchaser 
 not having resold within the time limited, to be a valid con- 
 tract to purchase at the price specified (/). It is not neces- 
 sary that the mode of payment should be mentioned {k).^ 
 
 Regarding the price, a distinction has been drawn between 
 the 4th and 17th sections. The word "bargain" in the lat- 
 ter is not so strictly interpreted as the word " agreement " in 
 the former, so far as the price is concerned. Thus, where 
 there is no actual agreement as to price, the note of the 
 "bargain," though silent as to price, is sufficient, the law im- 
 porting a promise to pay a reasonable price (/). But where 
 
 {g) Elmore »>. Kingscote, 5 B. & C. stated: Holman -v. Norfolk Bank, 12 
 
 5S3; 8 D. & R. 343; Peirce v. Corf, Ala. 369; Fugate v. Hansford, 3 Litt. 
 
 L.R. 9 Q.B. 210; 43 L.J.Q.B. 52. (Ky.) 262.] 
 
 [Adams v. McMillan, 7 Porter (Ala.) {h) Blagden v. Bradbear, 12 Ves. 
 
 73; Farvvell v. Lowther, 18 Ills. 252; 466. 
 
 Barickman v. Kuykendall, 6 Blackf. (i) Dart, 221; Leake, 1135; Milnes 
 
 (Ind.) 21; Parker v. Bodley, 4 Bibb v.Gtty, 14 Ves. 400, 407; of. anle, p. 
 
 (Ky.) 102; Norris z'. Blair, 39 Ind. 90; 93. 
 
 McElroy v. Buck, 35 Mich. 434; Soles {/) Langstaff v. Nicholson, 25 Beav. 
 
 V. Hickman, 20 Penn. St. 180; Ives v. 160. 
 
 Hazard, 4 R.I. 14; Kinloch v. Savage, {k) Sari v. Bourdillon, I C.B.N.S. 
 
 Speers Eq. (So. Car.) 470; Wright v. 188; 26 L.J.C.P. 78. 
 Cobb, 5 Sneed (Tenn.) 143; Ide v. (/) Hoadley v. McLaine, 10 Bing. 
 
 Stanton, 15 Vt. 685. But if the price 482, 487; cf. ante, p. 145, note (7). 
 
 appears by the memorandum to have [See Johnson v. Ronald, 4 Munf. (Va.) 
 
 been paid, then its amount need not be 77; Harman v. Reeve, 18 C.B. 587.] 
 
 [' See also Brown v. Bellovps, 4 Pick. (Mass.) 178; Atvvood v. Cobb, 16 id. 
 227.] 
 
 \^ It has been held that the memorandum must show whether the sale was for 
 cash or on credit : Carroll v. Powell, 48 Ala. 298. But this is not always regarded 
 as necessary: Fessenden v. Mussey, 11 Cush. (Mass.) 127; Smith v. Jones, 7 
 Leigh (Va.) 165. See Lewis v. Wells, 50 Ala. 198. If there is an express agree- 
 ment for credit, this should appear by the memorandum : Ellis v. Deadman, 4 
 Bibb (Ky.) 466; Parker v. Bodley, id. 102; Morton v. Dean, 13 Met. (Mass.) 
 385; Davis V. Shields, 26 Wend. (N.Y.) 341 ; Wright v. Weeks, 3 Bosw. (N.Y.) 
 372; Soles V. Hickman, 20 Penn. St. 180; McFarson's Appeal, II Penn. St. 503; 
 Elfe V. Gadsden, 2 Rich. (So. Car.) 373; Buck v. Pickwell, 27 Vt. 157.] 
 
 177 
 
*I53 THE CONTRACT. [PART I. 
 
 the price is fixed, it becomes a part of the "bargain" and 
 must appear in writing ; and parol evidence is admissible to 
 show that a price was actually agreed upon, in order to estab- 
 Hsh the insufficiency of a memorandum which is silent as to 
 price {in). 
 
 The Consent. — The note or memorandum must show an 
 agreement to the terms of the contract charged against the 
 party ; ^ and a memorandum is not sufficient which adds a 
 material term to the agreement charged, or contradicts or 
 qualifies it in a material particular («) ; as, where a letter ad- 
 mitting a sale [153] of goods asserts a condition as to their 
 quality {o), or that they were bought by sample (/).^ 
 
 The memorandum need not be signed by both parties to 
 the contract : the signature of the party to be charged alone 
 is sufficient {q) ; and signing a surname {r), or initials, only {s), 
 or in pencil (/), seems to be enough. Nor must the signature 
 
 (m) Benj. 184. Sweet v. Lee, 3 Man. & G. 452; cf. 
 
 (ra) Leake, 271. Hubert v. Moreau, 2 C. & P. 528; 12 
 
 {0) Smith I'. Surman, 9 B. & C. 561. Moore, 216; notes to Wain ». Warlters, 
 
 (/) Archer v. Baynes, 5 Ex. 625. 2 Sm. L.C. 241 ; Sugd. 144. [Sahnon 
 
 (y) Laythoarp v. Bryant, 2 Bing. Falls Mfg. Co. v. Goddard, 14 Howard 
 
 N.C. 735; 2 Hodg. 25; Seton ji. Slade, 446; Barry z). Coombe, i Peters, 640; 
 
 7 Ves. 264; Reuss v. Picksley, L.R. i Sanborn v. Flagler, 9 Allen (Mass.) 
 
 Ex. 342, 352; 35 L.J. Ex. 218. 474.] 
 
 (r) As: "Mr. A. begs to inform (f) Lucas v. James, 7 Hare, 410, 
 
 &c."; Lobb v. Stanley, 5 Q.B. 574. 419; provided it was intended as a sig- 
 
 (i) Phillimore v. Barry, I Camp, nature; cf. In the goods of Adams, 
 
 513; Jacob V. Kirk, 2 Moo. & R. 221 ; L.R. 2 P. & D. 367; 41 L.J. P. 31. 
 
 [' The memorandum must contain all the essential stipulations of the agree- 
 ment; so as to show the whole of the obligation of the purchaser : Stafford v. 
 Lick, 10 Calif. 12; Nichols v. Johnson, 10 Conn. 192; Doty v. Wilder, 15 Ills. 
 407; Burke v. Haley, 2 Oilman (Ills.) 614; Kay v. Curd, 6 B. Mon, (Ky.) loo; 
 O'Donnell v. Eastman, 43 Maine, 158; Riley v. Farnsworth, 116 Mass. 223; 
 Morton I/. Dean, 13 Met. (:\Iass.) 385; Coles t'. Bowne, 10 Paige (N.Y.) 526; 
 Gwathney 7). Cason, 74 Nor. Car. 5; Sherburne v. Shaw, i N.H. 157; Ferguson 
 ■a. Staver, 2,2, Penn. St. 411; Sheid v. Stamps, 2 Sneed (Tenn.) 172. If the pur- 
 chaser was to give a note without relief from valuation or appraisement laws, a 
 memorandum of the sale which did not state this condition would be insufficient : 
 Norris v. Blair, 39 Ind. 90. A sheriffs certificate of sale of land sold on execu- 
 tion is a sufficient memorandum in writing of the sale : Evans v. Ashley, S Mo. 
 
 1 77-] 
 
 [^ See Williams v. Morris, 95 U.S. 444; Jenness v. Mt. Hope Iron Co., 53 
 Maine, 20; Williams v. Bacon, 2 Gray (Mass.) 3S7.] 
 
 178 
 
CHAP. VIII.] THE CONTRACT. 1 54* 
 
 necessarily be written ; it may be printed or stamped («), or 
 be signified by a mark {v). The following have been held to 
 be sufficient signatures of the party to be charged : " I, J. C, 
 agree to sell " (x) ; "A. B. agrees with J. R. B.," in J. R. B.'s 
 (the defendant's) writing (jj/) ; "Sold J. D." {s); "Messrs. E., 
 bought of" {a)} "If a party or principal or person to be 
 bound signs as, what he cannot be, a witness, he cannot be 
 understood to sign otherwise than as principal " {b). But 
 where J. N., an auctioneer's clerk, [154] signed the memo- 
 randum of the contract: "Witness J. N." and signed the 
 receipt for the deposit (being authorized by the purchaser to 
 do so) : " For Mr. M. (the purchaser), J. N.," it was held that, 
 even if there had been proof of his being agent to the vendor, 
 the signature was not sufficient to bind the vendor, as it 
 merely attested the signature of the purchaser (c). And 
 where an agreement contained the names of the parties in 
 the commencement, and concluded : " As witness our hands," 
 
 {u) Provided it be shown to have (0) In J. D.'s writing: Johnson v. 
 
 been printed or stamped by the party Dodgson, 2 M. & W. 653. 
 
 or by his authority, and appropriated to {a) Written by Messrs. E.'s agent : 
 
 the particular contract: Schneider v. Durrell v. Evans, I H. &C. 174; 6 H. 
 
 Norris, 2 M. & S. 286; Saunderson v. & N. 660; 31 L.J. Ex. 337; 9 Jur. N.S. 
 
 Jackson, 2 B. & P. 238; Bennett v. 104; 7 L.T.N.S. 97; 10 W.R. 665. 
 
 Brumfitt, L.R. 3 C.P. 28; 37 L.J.C.P. (6) Per Lord Eldon, in Coles v. 
 
 25. [But see, under a statute requiring Trecothick, 9 Ves. 234, 25 1; Welford 
 
 the memorandum to be subscribed: Davis i;. Beazley, 1 Ves. Sen. 7; 3 Atk. 503. 
 
 V. Shields, 26 Wend. (N.Y.) 341, 351 ; [Hill v. Johnston, 3 Ired. Eq. (Nor. 
 
 VieUe v. Osgood, 8 Barb. (N.Y.) 130.] Car.) 432.] 
 
 {y) Whether the party be able to (c) Gosbell z;. Archer, 2 A. & E. 500, 
 
 read and write or not : Baker v. Den- where Lord Denman, C.J., criticized the 
 
 ing, 8 A. & E. 94. [Jackson v. Van dictum of Lord Eldon, quoted in the 
 
 Dusen, 5 Johns. (N.t'.) 144.] text. But see Sugd. 143, where Lord 
 
 (.v) Knight V. Crockford, i Esp. 190. Eldon's dictum is maintained to be 
 
 {y) Bleakley i/. Smith, II Sim. 150; correct. [Noakes v. Morey, 30 Ind. 
 
 of. Propert v. Parker, i R. & Myl. 625. 103,] 
 
 [' The place of the sigriature is generally considered to be immaterial, if it is 
 inserted in such a manner as to show the intention of the party to bind himself by 
 the contract: McConnell u. Brillhart, 17 Ills. 354; McMillen v. Terrell, 23 Ind. 
 163; Wise V. Ray, 3 Iowa, 430; Sanborn v. Sanborn, 7 Gray (Mass.) 142; Haw- 
 kins V. Chace, 19 Pick. (Mass.) 502; Penniman v. Hartshorn, 13 Mass. 87; 
 Evans v. Ashley, 8 Mo. 177; Yerby v. Grigsby, 9 Leigh (Va.) 387. The inser- 
 tion of the party's name for another particular purpose cannot be regarded as a 
 signature : Cabot v. Haskins, 3 Pick. (Mass.) 83, 95. Under the New York 
 statute the name must be signed at the bottom of the memorandum : James v. 
 Patten, 6 N.Y. 9. See also Higdon v. Thomas, i Har. & G. (Md.) 139.] 
 
 179 
 
^154 
 
 THE CONTRACT. 
 
 [part I. 
 
 without being followed by any name or signature, this was 
 held to be insufficient {d). 
 
 The authority to sign may be written, verbal or implied {e). 
 At a sale by private contract (/) the auctioneer is agent for 
 the vendor only (g), but at a sale by auction he has an im- 
 plied authority to sign for both parties {h). How far in the 
 
 {d) Hubert v. Treherne, 3 Man. & 
 G. 743 ; Hubert v. Turner, 4 Sco. N.R. 
 486. 
 
 (1?) See ante, p. 21. [Yourt v. ?Iop- 
 kins, 24 Ills. 326.] 
 
 (/) He cannot so sell without spe- 
 cial authority : ante, p. 27. 
 
 {g) Mews V. Carr, i H. & N. 484 ; 
 26 L.J. Ex. 39. 
 
 (/j) See ante, p. 20. [The auction- 
 eer is the agent of both the vendor and 
 the purchaser, and as such he may bind 
 them by a memorandum in "writing under 
 the statute : Lewis z'. Wells, 50 Ala. 198; 
 Burke v. Haley, 2 Gilman, Ills. 614 ; 
 Hunt V. Gregg, 8 Blackf. (Ind.) 105 ; 
 Gill V. Hewett, 7 Bush (Ky.) 10; Alna 
 V. Plummer, 4 Greenl. (Me.) 25S; Sing- 
 stack V. Harding, 4 Harr. & J. (Md.) 
 186; Morton r'. Dean, 13 Met. (Mass.) 
 385 ; Davis v. Rowell, 2 Pick. (Mass.) 
 64 ; Baptist Church v. Bigelow, 16 
 Wend. (N-V.) 2S; Davis v. Robertson, 
 I Mill Const. (So. Car.) 71; Meadows 
 V. Meadows, 3 McCord (So. Car.) 458. 
 The same rule applies to a sheriff or 
 officer of the court selling under an exe- 
 cution or decree ; Robinson v. Garth, 
 6 Ala. 204; Linn Boyd Tobacco Ware- 
 house Co. V. Terrill, 13 Bush (Ky.) 463; 
 Endicott v. Penny, 14 Sm. & M. (Miss.) 
 144; Sanborn x". Chamberlin, lOI Mass. 
 409; Wiley w. Robert, 31 Mo. 212, affirm- 
 ing s.c, 27 Mo. 388; Stewart!/. Garvin, 
 31 Mo. 36; Hegeman i/. Johnson, 35 Barb. 
 (N.Y.) 200; Gordon v. Sims, 2 McCord 
 Ch. (So. Car.) 151; Jenkins v. Hogg, 2 
 Treadw. Const. (So. Car.) 821 ; Brent 
 V. Green, 5 Leigh (Va.) 16. But the 
 authority to make the signature must be 
 averred : Hatton v. Williams, 35 Ala. 
 503. In Tennessee the contract for the 
 sale of land must in all cases be signed 
 
 by the vendor : Frazer v. Ford, 2 Head 
 (Tenn.) 464. So in New York: Wor- 
 rail V. Munn, 5 N.Y. 229; National Ins. 
 Co. V. Loomis, 11 Paige (N.Y.) 431; 
 Champlin v. Parish, id. 405; Coles v. 
 Bowne, 10 Paige (N.Y.) 526; McWhor- 
 ter V. McMahan, id. 386; Miller v. Pel- 
 letier, 4 Edwards Ch. (N.Y.) 102. And 
 the general rule is confined to profes- 
 sional auctioneers ; it will not be ex- 
 tended to ii mere private agent of the 
 vendor, though assuming to sell at auc- 
 tion : Anderson v. Chick, Bailey Eq. 
 (So. Car.) 118; Adams -v. Scales, i 
 Baxter (Tenn.) 337; Walker v. Her- 
 ring, 21 Gratt. (Va.) 678. It has been 
 said that the auctioneer's entry to be 
 valid as a memorandum must be made 
 contemporaneously with the sale; that 
 he cannot after that bind the purchaser : 
 Craig V. Godfrey, i Calif. 415; Smith v. 
 Arnold, 5 Mason C.C. 414; but a less 
 rigid rule is adopted in other cases. 
 See Episcopal Church v. Leroy, Riley 
 Ch. (So. Car.) 156; Price v. Durin, 56 
 Barb. (N.Y.) 647 ; Barclay v. Bates, 2 
 Mo. App. 139. But the auctioneer's 
 authority may be revoked at any time 
 before the signature : Gwathney v. 
 Cason, 74 Nor. Car. 5.] A broker, like 
 an auctioneer, acts as agent for both 
 parties : Rucker -'. Cammeyer, i Esp. 
 105. The mode in which he usually 
 effects a contract is by the deliveiy to 
 his principals of what are called bought 
 and sold notes, the bought note being 
 sent to the buyer, the sold note to the 
 seller. These notes should contain the 
 names of both the contracting parties, 
 the quantity of the article bought or 
 sold, and the price, if agreed upon. For 
 forms, see Part II., post, p. 378. Where 
 the broker has made and signed an entry 
 80 
 
CHAP. VIII.] THE CONTRACT. 155* 
 
 latter case his clerk has a similar authority [155] appears to 
 be doubtful.! Hullock, B., in Henderson v. Barnewall (?), is 
 reported to have said : " An auctioneer's clerk who writes 
 down the name of the buyer in his presence is the agent of 
 both parties." But this dictum seems not to have met with 
 the approval of Patteson, J., in a subsequent case (_/') ; and in 
 Peirce v. Corf (]z) Blackburn, J., says : " I take it as quite 
 clear that the auctioneer's clerk has no authority to sign by 
 general custom ; although, as Bird v. Boulter (/) decided, 
 there may be special circumstances to show that an auction- 
 eer's clerk had authority to sign. Where the bidder, that is, 
 
 of the contvact in his book, this will be 341 ; Snydam v. Clark, 2 Sandf. (N.Y.) 
 
 good evidence of the contract to satisfy 133; Toomer v. Dawson, Cheves (So. 
 
 the Statute of Frauds in cases where no Car.) 68. ] 
 
 bought and sold notes have been deliv- (;') i Y. & L. 387, 389 ; and see 
 
 ered, or where they disagree. But if Sugd. 147, where it is said that the clerk 
 
 there is a material difference between who takes down the biddings openly is 
 
 the bought and sold notes, and no entry considered the agent of both the seller 
 
 has been made and signed, then there and the purchaser. 
 
 is no binding contract. See Russ. Merc. Q') Bird v. Boulter, 4 B. & Ad. 443, 
 
 Ag. 4, citing, among others, the follow- 446; I N. cfe M. 313. 
 
 ing cases: Thornton z/. Charles, 9 M. & (Ji) L.R. 9 Q.B. 210, 214; 43 
 
 W. 802; Pitts V. Beckett, 13 M. & W. L.J.Q.B. 52; (decided in 1874), where 
 
 743, 746; Sievewright W.Archibald, 17 the clerk had signed the auctioneer's 
 
 Q.B. 103; 20 L.J.Q.B. 529; and see sale-book for the purchaser. But the 
 
 Benj. 203 et seq. ; and Heyworth v. case was not decided on that ground. 
 
 Knight, 17 C.B.N.S. 298; 33 L.J.C.P. {I) UH supra. 
 
 298. [Davis V. Shields, 26 Wend. (N.Y.) 
 
 [' It is generally considered that the entry made by the clerk of the auctioneer, 
 under the latter's direction, will have the same validity as if made by the auctioneer 
 himself: Simpson v. Peltus, 7 Ala. 543; Adams w. McMillan, 7 Porter (Ala.) 73; 
 Hart V. Woods, 7 Blackf. (Ind.) 568; Alna v. Hummer, 4 Greenleaf (Me.) 258; 
 Gill w. Bicknell, 2 Gush. (Mass.) 355; Johnson v. Buck, 35 N.J. Law, 338; 
 Cherry v. Long, Phillips Law (Nor. Car.) 466; Frost v. Hill, 3 Wend. (N.Y.) 
 386; Brent v. Green, 6 Leigh (Va.) 16; Harvey v. Stevens, 43 Vt. 653; Green 
 o. Merriam, 28 Vt. 801. Contra^ unless the act of the clerk has been authorized or 
 ratified by the purchaser : Carmack v. Masterson, 3 Stew. & P. (Ala.) 41 1 ; Pope 
 V. Chafee, 14 Rich. Eq. (So. C^r.) 69; Entz v. Mills, I McMuU. (So. Car.) 453; 
 Christie v. Simpson, i Rich. (So. Car.) 407; Meadows v. Meadows, 3 McCord 
 (So Car.) 458. A subsequent assent of the purchaser will confirm an entry made 
 by the auctioneer's clerk without his authority : Cathcart v. Keirnaghan, 5 Strobh. 
 (So. Car.) 129. A memorandum made by a sheriff seUing property under a deed 
 of trust is competent evidence to show the contract of sale, although not made by 
 the deputy who personally conducted the sale: Barclay v. Bates, 2 Mo. App. 139. 
 But an entry of a sale under execution who was the agent of the judgment credi- 
 tor but not of the auctioneer will not be sufficient to satisfy the requirements of 
 the statute of frauds : Ijams v. Hoffman, j Md. 423.] 
 
 181 
 
*1^6 THE CONTRACT: [PART I. 
 
 the person to be charged, by word or sign authorizes the auc- 
 tioneer's clerk to sign on his behalf, he makes 'him his agent 
 to sign, although, by the general custom, the auctioneer's 
 clerk would not be the bidder's agent." In the case of Bird 
 V. Boulter, mentioned above, the clerk, as the hammer fell, 
 called out the name of the purchaser, and if the purchaser 
 assented, made an entry accordingly in the sale-book. With 
 regard to the lot in question in the case, the auctioneer hav- 
 ing named the defendant as purchaser, the clerk said : " Mr. 
 B., it is your wheat ; " whereupon the defendant nodded, and 
 the cleric made the entry in his sight, he being then within a 
 distance of three yards ; and the purchaser was held to have 
 constituted the clerk his agent. Although, in general, the 
 clerk would appear not to have authority to bind the vendor 
 by signing for him (;«), perhaps the presence and direction 
 [156] of the auctioneer would suffice to invest him with such 
 authority. For, as observed by Taunton, J., in Bird j'. Boul- 
 ter («), " it is not necessary to suppose that the vendor rested 
 a particular confidence in the auctioneer for the purpose of 
 putting down the names in the sale-book. He may be taken 
 to have constituted that person his agent for the making of 
 such entries whom the auctioneer might choose to appoint." 
 And, according to Mr. Dart, the vendor by the appointment 
 of the auctioneer impliedly authorizes the clerk of the latter 
 to bind him by signing as his agent (<?). But on a sale by 
 private contract the clerk's authority is not so readily implied. 
 In Coles V. Trecothick (/), Lord Eldon is reported to have 
 said : " The doctrine is very dangerous indeed that, if an auc- 
 tioneer is authorized to sell, all his clerks, when he goes out 
 of town, are, in consequence of any usage in that business, 
 agents for the person who authorized him." In that case the 
 auctioneer had informed the vendor that he was in the habit 
 of allowing his clerks to sign contracts, witness instruments, 
 and conduct his business, and as the vendor had expressed 
 
 (m) See an/c, p. 29. [But see cases signs the contract for the vendor, while 
 cited allied, u. i, p. 155.] the auctioneer himself is engaged in 
 
 (n) Ubi supra. selling other properly. 
 
 {0) Dart, 181. At sales of numerous (^} 9 Ves. 234, 250. 
 
 lots the auctioneer's clerk frequently 
 
 182 
 
CHAP. VIII.] THE CONTRACT. 157* 
 
 himself satisfied, he was held bound by the signature of one 
 of two clerks named to him, who had signed as his agent. 
 
 Solicitor. — A solicitor has no implied authority to bind his 
 client by signing the latter's name {q) ; but the conduct of 
 the parties is evidence to prove such authority (r). Before a 
 solicitor can [157] act as agent of both parties, they must 
 both have intended that he should, and have authorized him 
 to, so act {s). 
 
 One Party cannot Sign for the Other. — One party to a con- 
 tract cannot act as agent for the other so as to bind him by 
 signing his name ; ^ therefore an auctioneer cannot sue in his 
 own name upon a contract which he himself has signed as 
 agent for the buyer {t). 
 
 How Agent should Sign. — The principal can sue and be 
 sued, although the agent signed in his own name (u) ; but, 
 as a rule, an agreement entered into by an agent should, in 
 order to avoid any question as to personal liability, be made 
 and signed by him expressly in the character of agent (v). 
 
 The Agreement may be Gathered from Several Documents. — 
 It is not necessary that the note or memorandum appear on 
 one document (w) ; and the insertion of the signature in any 
 
 {q) Smith v. Webster, 3 Ch. D. 49; 333; Sharman v. Brandt, L.R. 6 Q.B. 
 
 45 L.J. Ch. 528; Forster z;. Rowland, 7 720; 40L.J.Q.B. 312; a/z'/^r, where his 
 
 H. & N. 103; 7 Jur. N.S. 998; cf. Earl clerk has signed as agent for the pur- 
 
 of Glengal v. Barnard, i Keen, 769, 787. chaser : Bird v. Boulter, 4 B. & Ad. 443; 
 
 (r) Taylor v. Salmon, W.N. 1881, i N. & M. 313. [Robinson v. Garth, 6 
 
 102. Ala. 204; Boardman v. Spooner, 13 
 
 (J) For, generally speaking, the agent Allen (Mass.) 353; Bailey v. Ogden, 3 
 
 of the seller cannot act as agent of the Johns. (N.Y.) 399; Adams v. Scales, 
 
 buyer : see ante, p. 22, note {0) ; cf. I Baxter (Tenn.) 337.] 
 Mews V. Carr, i H. & N. 484; 26 L.J. («) Post, p. 206. 
 
 Ex.39. (^) Dart, 185; c(. post, -p. 20Z. 
 
 (i) Wright zi. Dannah, 2 Camp. 203 ; (to) Cave z;. Hastings, 7 Q.B. D. 125; 
 
 Farebrother w. Simmons, 5 B. & Aid. 50 L.J.Q.B. 575. 
 
 [' If the auctioneer is himself the vendor, or if he has himself an interest in the 
 contract of sale, besides being a nominal party to it, he cannot bind the purchaser 
 by signing a memorandum in writing to take the case out of the statute of frauds : 
 Smith K. Arnold, 5 Mason C.C. 414; Bentz/. Cobb, 9 Gray (Mass.) 397; TuU z/. David, 
 45 Mo. 444. Accordingly, neither an administrator who sells the real estate of 
 his intestate under a license from the probate court, nor a guardian selling his 
 ward's land under order of court, nor a trustee lawfully making sale of the trust 
 estate, can, though himself acting as auctioneer, bind the purchaser by his mem- 
 orandum made at the sale : cases cited jw/ra.] 
 
 183 
 
*I58 THE CONTRACT. [pART I. 
 
 part of the writing is sufficient, so long as it is done in such a 
 manner as to authenticate the whole instrument (x). " When 
 it is proposed to prove the existence of a contract by several 
 documents, it must appear upon the face of the instrument 
 signed by the party to be charged that reference is made to 
 another document, and this omission cannot be supplied by 
 verbal evidence.' If, however, it appears from the instru- 
 ment itself that another document is referred to, that docu- 
 ment may be identified by verbal evidence " ( j). [158] Where 
 the defendant signed the following receipt : " Received of 
 Mr. George Long the sum of thirty-one pounds, as a deposit 
 on the purchase of three plots of land at Hammersmith," it 
 was held that the word " purchase " referred to some agree- 
 ment to purchase, and that parol evidence was admissible to 
 identify the agreem.ent referred to, which was an agreement 
 signed by the plaintiff only (z). In another case, the agents 
 
 (j:) Caton v. Caton, L.R. 2 H.L. your offer.' In that case there may be 
 
 127, 142; 36 L.J. Ch. 886; 'Jones z'. an identification of the documents by 
 
 Victoria Graving Dock Co., 2 Q.B.D. parol evidence; and it may be shown 
 
 314, 323; 46 L.J.Q.B. 219. that the offer alluded to by B. is that 
 
 (y) Per Thesiger, L.J., in Long v. made by A., without infringing the Stat- 
 
 Millar, 4 C.P.D. 450, 456; 48 L.J.Q.B. ute of Frauds, s. 4." Cf. Rossiter v. 
 
 596, where Bramwell, L.J., puts the fol- Miller, 3 App. Cas. I124; 48 L.J. Ch. 
 
 lowing case: " Suppose that .A. writes to 10; Bonnewell i-. Jenkins, 8 Ch. D. 70; 
 
 B., saying that he will give ^.f 1,000 for 47 L.J. Ch. 758. 
 
 B.'s estate, and at the same time states (z) Long v. Millar, uhi supra ; cf. 
 
 the terms in detail, and suppose that B. Shardlow v. Cotterell, 18 Ch. D. 280; 
 
 simply writes back in return : ' I accept 50 L.J. Ch. 613. 
 
 \} The terms of the bargain may be gathered from two or more separate papers, 
 if the signed memorandum contains such reference to the other papers as to make 
 the latter a part of the former: Price v. Dunn, 56 Barb. (N.Y.) 647; but the 
 connection between the signed and the unsigned papers cannot be made by parol 
 evidence that they were intended by the parties to be read together, or by proof 
 of facts and circumstances from which such intention may be inferred : Johnson v. 
 Buck, 35 N.J. Law, 338; Horton v. McCarty, 53 Maine, 394; Tallman v. Frank- 
 lin, 3 Duer (N.Y.) 395. But a letter containing the terms of sale pinned into the 
 auctioneer's sales-book is sufficiently connected with entries of the names of the 
 purchasers afterwards made in the same book and signed by the auctioneer : Tall- 
 man V. Franklin, 14 N.Y. 5S4, on appeal from s.c, supra ; just as it would be 
 sufficient if the name of the purchaser were entered opposite such a written nr»em- 
 orandum: Walker v. Herring, 21 Gratt. (Va.) 678. It was said in one case. 
 Hobby V. Finch, Kirby (Conn.) 14, that an advertisement of the intended sale of 
 land by auction, stating the terms of sale, would be a sufficient memorandum in 
 writing to hold the vendor to the performance of his subsequent agreement : but 
 see, contra, White v. Watkins, 23 Mo. 423.] 
 
 184 
 
CHAP. VIII.] THE CONTRACT. 1 59* 
 
 for the parties signed a contract for the sale of certain prop- 
 erty, no plan being referred to in the contract, and at the 
 same time they signed the following memorandum written 
 upon a plan of the property : " Plan of property sold to and 
 purchased by D. (the defendant), 23rd October, 1874. N.B. 
 The property included in the purchase is edged with red 
 colour ; " it was held that the plan sufficiently referred to the 
 contract to permit the two to be read together {a). And an 
 auctioneer's receipt for the deposit will be sufficient, if it 
 shows, either by itself, or by reference to something else, 
 what the agreement is {b). A letter written after a sale by 
 auction, acknowledging the sale and referring to the condi- 
 tions, will incorporate the conditions, so as to constitute a 
 memorandum sufficient to charge the party writing the letter, 
 although he did not [159] sign the conditions separately (c). 
 Nor is it material that the letter was addressed to the agent 
 of the party writing it (d). Where an auctioneer wrote the 
 initials of the name of an agent, acting for an undisclosed 
 principal, opposite the lots purchased by him, together with 
 
 (a) Nene Valley Commissioners v. agreed to. [A receipt for the purchase- 
 
 Dunkley, 4 Ch. D. I. [If the relation money may constitute a sufficient memo- 
 
 between the papers is not apparent randum of the agreement : Hurley v. 
 
 upon their own face, it cannot be estab- Brown, 98 Mass. 545 ; Cosack v. Des- 
 
 lished by parol evidence : Ridgway &. coudres, I McCord (So. Car.) 425. But 
 
 Ingram, 50 Ind. 145 ; Freeport v. Bar- the receipt must contain, either upon 
 
 tol, 3 Greenl. (Me.) 340; Clark v. its own face or by reference to some 
 
 Chamberlin, 112 Mass. 19; Boardman other writing all the material stipula- 
 
 V. Spooner, 13 Allen (Mass.) 353; tions of the agreement: Barickman v. 
 
 Morton J/. Dean, 13 Met. (Mass.) 385; Kuykendall, 6 Blackf. (Ind.) 21; Kay 
 
 Wiley zi. Robert, 27 Mo. 388; Stocker v. Curd, 6 B. Mon. (Ky.) 100; Ellis v. 
 
 V. Partridge, 2 Rob. (N.Y.) 193; John- Deadman, 4 Bibb (Ky.) 466; Welsh 
 
 son V. Buck, 35 N.J. Law, 338; Schafer v. Bayard, 6 C. E. Green (N.J.) 1 86.] 
 V. Farmers' & Mechanics' Bank, 59 (c) Dobell v. Hutchinson, 3 A. & E. 
 
 Penn. St. 144; Johnson v. Kellogg, 7 355; 5 N. & M. 251; i H. c& W. 394. 
 
 Heisk. (Tenn.) 262.] [An imperfect memorandum of the con- 
 
 {b) Blagden v. Bradbear, 12 Ves. tract of sale by the auctioneer, and a 
 
 466, 471; Wood V. Midgley, 2 Sm. & letter written by the purchaser to the 
 
 G. 115, where the auctioneer's receipt vendor, cannot be connected together 
 
 was held binding on the purchaser, al- so as to take the case out of the statute, 
 
 though it stated that the terms of the if there is no reference in the one to the 
 
 contract were " to be expressed in an other : Adams v. McMillan, 7 Porter 
 
 agreement to be signed as soon as pre- (Ala.) *]'i^ 
 
 pared"; the agreement referred to be- {d") Gibson v. Holland, L.R. i C.P. 
 
 ing merely a fair copy of a draft already i ; 35 L.J. C.P. 5. 
 
 i8s 
 
*l6o THE CONTRACT. [pART I. 
 
 the price, in the printed catalogue, and the principal subse- 
 quently wrote to the agent recognizing the purchase, the 
 entry and the letter were held to constitute a good memo- 
 randum {e). Even a refusal in writing to perform the con- 
 tract may be sufficient, provided it does not dispute the 
 terms (_/"). 
 
 But the memorandum, to be a good memorandum, must be 
 signed in such a manner that, when the auctioneer attaches 
 his signature, it authenticates the contract as to the price 
 and the conditions of sale {g). Signing the purchaser's name 
 on the catalogue {h), or in the sale-book {i), is not sufficient, 
 if the conditions of sale are not annexed to, or embodied 
 or referred to in, the catalogue or sale-book. ^ And if the 
 conditions have during the progress of the sale become 
 detached from the particulars, the signing of the latter during 
 the separation will be unavailing {J). Where a mare, num- 
 bered lot 49 in the catalogue and conditions of sale, was put 
 up by auction, and the auctioneer entered in his sale-book the 
 number of the lot, together with a description of the mare, 
 the name of the purchaser, and the price [160] bid, and after 
 the sale the purchaser wrote to the auctioneer as follows : 
 " I herewith return the grey mare, lot 49, bought at your sale 
 this day," it was held that there was no contract, as the 
 sale-book contained no reference to the catalogue and condi- 
 tions, and that, although the purchaser's letter might be 
 
 (f) Phillimore?'. Barry, I Camp. 513. the parties must appear in tlie memo- 
 
 (y) Jackson &. Lowe, I Bing. 9; randum of the auctioneer or in some 
 
 7 IMoore, 219; Bailey v. Sweeting, g writing connected therewith: Doty v. 
 
 C.B.N.S. 843; 30 L.J.C.P. 150; Bux- Wilder, 15 Ills. 407.] 
 
 ton V. Rust, L.R. 7 Ex. 279; 41 L.J. {h) Hinde v. Whitehouse, 7 East, 
 
 Ex. 173. 558, 569. 
 
 {g) Per Blackburn, J., in Peirce v. (i) Rishton v, Whatmore, 8 Ch. D. 
 
 Corf, L.R. 9 Q.B. 210,214; 43 L.J.Q.B. 467; 47 L.J. Ch. 629. 
 
 52; cf. Williams v. Jordan, 6 Ch. D. (/) Kenworthy v. Schofield, 2 B. & 
 
 517; 46 L.J. Ch. 681. [Everything C. 945. 
 
 needed to show the contract between 
 
 [' Conditions of sale read before the bidding commenced, but not annexed to 
 the catalogue in which the purchasers' name were entered, or referred to therein, 
 cannot be referred to to cure this omission : Johnson v. Buck, 35 N.J. Law, 338. 
 The hand-bills and newspaper notices published at the time of the sale are not 
 admissible if the memorandum contains no reference to them : O'Donnell v. Sea- 
 man, 43 Maine, 158; Baptist Church v. Bigelow, i6 Wend. (N.Y.) 28.] 
 
 186 
 
CHAP. VIII.] THE CONTRACT. l6l* 
 
 taken to show that he had bought subject to the conditions 
 in the catalogue, it contained no reference to the sale-book, 
 and was defective as a memorandum, the price not being 
 stated (k). 
 
 The usual mode of complying with the statute has already 
 been stated (/). It is now proposed to consider the provi- 
 sions of the 17th section relating to acceptance and part pay- 
 ment. 
 
 " In order to satisfy the statute, there must be a delivery 
 of the goods by the vendor, with an intention of vesting the 
 right of possession in the vendee, and there must be actual 
 acceptance by the latter, with an intention of taking to the 
 possession as owner" (w?). The acceptance may be prior to 
 the actual receipt, and need not be contemporaneous with or 
 subsequent to it («) ; but if the buyer refuse to receive the 
 goods, he cannot be charged with the contract, whatever 
 may have been his motive in refusing {o). It is sufficient 
 if the buyer accept and receive a part of the goods sold.^ 
 [161] Where goods are sold by sample, a delivery to, and 
 
 (/5) Peirce t/. Corf, L.R. 9 Q.B. 210; ing that the goods did not correspond 
 
 43 L.J. Q.B. 52. to the contract; but on this point cf. 
 
 (/) Ante, p. 127. Hunt v. Hecht, 8 Ex. 814; 22 L.J. Ex. 
 
 (;«) Per cur. in Phillips v. BistoUi, 293. [See Garfield v. Paris, 96 U.S. 
 
 2 B. & C. 511, 513; and see Holmes jy. 557; Buckingham w. Osborne, 44 Conn. 
 
 Hoskins, 9 Ex. 753; Farina v. Home, 133; Davis v. Moore, 13 Maine, 424; 
 
 16 M. & W. I ig, 123 ; Smith v. Hudson, Townsend v. Hargraves, 1 18 Mass. 336; 
 
 6B. &S. 431; 34 L.J.Q.B. 145; Hard- McKnight v. Dunlop, 5 N.Y. 537; 
 
 man v. Bellhouse, 9 M. & W. 596. Sprague v. Blake, 20 Wend. (N.Y.) 61; 
 
 («) Cusack ti. Robinson, i B. & S. Sale v. Danagh, 2 Hilton (N.Y.) 184.] 
 299; 30 L.J.Q.B. 261; Morton z/. Tib- {0) Baldey /;. Parker, 2 B. & C. 37; 
 
 bett, 15 Q.B. 429; 19 L.J.Q.B. 382, 3D. &R. 220; Phillips z/. Bistolli, 2 B. 
 
 where it was held that there might be & C. 511. [Remick v. Sandford, 120 
 
 an acceptance and receipt within the Mass. 309; Stone zi. Browning, 68 N.Y. 
 
 statute without the buyer having done 598; Bacon v. Eccles, 43 Wise. 227.] 
 anything to preclude him from contend- 
 
 [' The acceptance by the buyer of a part of the goods will not be sufficient to 
 take the sale of the whole out of the statute, if it appears that this partial accept- 
 ance was not made with an intention to perform the whole contract and to assert the 
 buyer's ownership under it, but on the contrary that the buyer immediately notified 
 the seller that he would be responsible only for what he had received ; Atherton 
 w. Newhall, 123 Mass. 141, citing Townsend v. Hargraves, 118 Mass. 325, 333; 
 Remick v. Sandford, 120 Mass. 309. But an acceptance of part of the goods not 
 thus qualified will take the whole case out of the statute : Field v. Runk, 22 N.J. 
 Law, 525; Smith v. Milliken, 7 Lans. (N.Y.) 336.] 
 
 187 
 
*l62 THE CONTRACT. [PAKT I. 
 
 acceptance by, the purchaser, of a sample, will bind him, if it 
 be delivered and accepted as a part of the thing purchased (/) ; 
 but if given merely as a specimen of the article sold, or if 
 taken only for the purpose of examining the quality, it will 
 not bind him {q). If there be a joint and entire contract for 
 distinct articles, acceptance and receipt of one article is suffi- 
 cient {r). 
 
 Constructive Delivery and Acceptance. — The delivery may 
 be constructive ; for, " when goods are ponderous and inca- 
 pable ... of being handed over from one to another, there 
 need not be an actual delivery ; but it may be done by that 
 which is tantamount, such as the delivery of the key of a 
 warehouse in which the goods are lodged, or by delivery of 
 other indicia of property " {s) ; and this is evidence of accept- 
 ance also (t). If a purchaser deal with goods, left in the pos- 
 session of the vendor, as his own, delivery and acceptance 
 may be inferred by the jury (//) ; as, where trees standing on 
 the vendor's land were sold for immediate removal, and the 
 buyer cut down some and resold certain portions, although 
 there was no actual removal from the land {v). If the goods 
 are in the custody of a third party, e.g., a dock company, the 
 receipt of a delivery order on such third party is not a suffi- 
 cient acceptance by the purchaser, unless such third party by 
 [162] accepting the order assents to holding the goods as 
 his agent (w). Where two ricks of hay were sold by auction 
 
 (/) Hinde v. Whitehouse, 7 East, (/) Elmore v. Stone, I Taunt. 458. 
 
 558; Kilnitz V. Surry, 5 Esp. 267. [Wilkes v. Ferris, supra.'\ 
 [Smith V. Milliken, 7 Lans. (N.Y.) {ti) Lillywhite o. Devereux, 15 M. 
 
 336.] & W. 2S5 ; Kershaw v. Ogden, 3 H. & 
 
 {q) Talver I'. West, Holt. N.P. 178; C. 717; 34 L.J. Ex. 159; Marvin v. 
 
 Cooper V. Elston, 7 T.R. 14. [Carver Wallis, 6 E. & B. 726; 25 L.J.Q.B. 
 
 V. Lane, 4 E. D. Smith (N.Y.) 168.] 369 ; Castle -'. Sworder, 6 H. & N. 828; 
 
 (r) Bigg V. Whisking, 14 C.B. 195; 30 L.J. Ex. 310. [Safford v. McDon- 
 
 2 C.L.R. 617; Scott V. Eastern Coun- ough, 120 ISLiss. 290; Knight v. Mann, 
 
 ties Ry. Co., 12 M. & W. 33; cf. antt!, n8 Mass. 143; Brown v. Hall, 5 Lans. 
 
 p. 148. [Jenness t'. Wendell, 51 N.H. (N.V.) 177; Green j. Merriam, 28 Vt. 
 
 63; Mills V. Hunt, 20 Wend. (N.Y.) 801; Janvrin i/. Maxwell, 23 Wise. 51.] 
 431, affirming S.c, 17 id. 333; Tomp- (v) Marshall z;. Green, I C.P.D. 35; 
 
 kins V. Haas, 2 Penn. St. 74; Coffman 45 L.J.C.P. 153. 
 V. Hampton, 2 Watts & S. (Penn.) 377.] (to) Bentall v. Burn, 3 B. & C. 423. 
 
 (i) Per Lord Kenyon, C.J., in Chap- And an acceptance may be presumed, if 
 
 lin z;. Rogers, i East, 192, 194. [Wilkes the purchaser, knowing that the goods 
 
 i/. i'crris, 5 Johns. (N.Y.) 335.] are lying at his disposal, does not within 
 
 188 
 
CHAP. VIII.] THE CONTRACT. 163* 
 
 under a distress for rent, and the conditions provided that they 
 should be removed by the purchaser at his own expense 
 within a week, but the auctioneers obtained from the tenant 
 a written consent, which was endorsed on the conditions and 
 read in the auction-room, for the hay to remain on his prem- 
 ises for a longer period, and two days after the sale gave to 
 the purchaser a written order addressed to the tenant and 
 directing him to permit its removal, which he refused to do ; 
 it was held that the purchaser could not sue for the purchase- 
 money which he had paid at the sale, as the hay had been 
 delivered into his possession, the permission given by the 
 tenant amounting to an attornment from the tenant to the 
 purchaser (.*■). 
 
 Delivery to Carrier. — Delivery to a particular carrier or 
 particular wharfinger named by the buyer is not by itself a 
 sufficient compliance with the statute {y) ; yet it may be 
 sufficient, if the purchaser deal with the goods as his own, as, 
 by reselling them or altering their destination, although he 
 have not actually received them \z). 
 
 Restrictions to the Rule. — But there can be no acceptance 
 and receipt so long as the [163] vendor has a lien upon the 
 goods («). Where at a sale by auction a lot was knocked 
 down to the highest bidder and delivered to him immediately, 
 but he, after retaining it three or four minutes, declined J:o 
 keep it ; it was held that there was no delivery of possession, 
 
 a reasonable time notify to the seller his 145. [Keiwert v. Meyer, 62 Ind. 587; 
 
 refusal of them : Bushell i;. Wheeler, 1 5 Atherton v. Newhall, 123 Mass. 141 ; 
 
 Q.B. 443; but see Norman v. Phillips, Johnson?/. Cuttle, 105 Mass. 447; Quin- 
 
 14 M. & W. 277. [See to the same tard v. Bacon, 99 Mass. 185.] 
 point Leonard i/. Davis, I Black, 476; (s) Morton z/. Tibbett, 15 Q.B. 428; 
 
 Calkins v. Lockwood, 17 Conn. 154; 19 L.J. Q.B. 382. The keeping and deal- 
 
 Boynton v. Veazie, 24 Maine, 286; Jew- ing with a bill of lading may be equiva- 
 
 ett V, Warren, 12 Mass. 300; Shindler lent to receipt and acceptance of the 
 
 V. Houston, I Comstock (N.Y.) 261, property itself: Currie v. Anderson, 2 
 
 reversing s.c, i Denio (N.Y.) 48.] E. & E. 592; 29 L.J.Q.B. 87. [See 
 
 (x) Salter v. WooUams, 3 Sco. N.R. Wilcox Silver Plate Co. v. Green, 72 
 
 65. N.Y. 17; AUardi/. Greasert,6i N.Y. I; 
 
 {y) Hanson v. Armitage, 5 B. & Aid. Spencer v. Hale, 30 Vt. 314.] 
 557; Meredith z/. Meigh, 2 E. & B. 364; (a) Bill v. Bament, 9 M. & W. 36, 
 22 L.J.Q.B. 401 ; Hart -u. Bush, E.B. & 41 ; Carter v. Toussaint, 5 B. & Aid. 855; 
 E. 494; 27 L.J.Q.B. 271; Norman v. Dixon i/. Yates, 5 B. & Ad. 313. [See 
 Phillips, 14 M. & W. 277; Smith v. Mechanics' &. Traders' Bank v. Far- 
 Hudson, 6 B. & S. 431 ; 34 L.J.Q.B. mers' & Mechanics' Bank, 60 N.Y. 40.] 
 
 189 
 
*l64 THE CONTRACT. [pART I. 
 
 as the owner could not be presumed to have parted with his 
 lien in the face of a condition requiring a deposit {b). If 
 some act remains to be done by the purchaser which must 
 necessarily precede delivery, as, the selection and marking of 
 timber, such act must be done, before there can be a receipt {c). 
 And if the goods sold are not specific and ascertained, the 
 purchaser is entitled to keep them for a reasonable time for 
 the purpose of examining them and of seeing if they answer 
 the description given of them ; ^ but if he retain them beyond 
 a reasonable time, without signifying his intention to reject 
 them, he may be presumed to have accepted them (d). 
 
 " Earnest " implies something given by the buyer to the 
 seller {e). The North of England custom of "striking a bar- 
 gain," by the buyer drawing a shilling across the hand of the 
 seller and returning the money to his own pocket, is not 
 sufficient to bind the bargain (/). The distinction between 
 earnest and part payments appears to be that the former is 
 given at the time of the bargain, so as to bind it, while the 
 latter may be given subsequently, provided it be given before 
 action brought {g). The amount is [164] immaterial (h) ; 
 but it must be a part of the price, and not a mere pledge.^ 
 
 {l>) Phillips z/.BistoUi, 2 B. &C. 5 n. Artcher t/. Zeh, 5 Hill (N.Y.) 200. A 
 
 [Mechanics' & Traders' Bank v. Far- mere tender of earnest is not sufficient; 
 
 mers' & Mechanics' Bank, supra ; Leven it must be actually given and accepted : 
 
 I/. Smith, : Denio (N.Y.) 571; Baker z/. Edgerton i;. Hodge, 41 Vt. 676. Some- 
 
 Cuyler, 12 Barb. (N.Y.) 667.] thing must actually pass from the buyer 
 
 (i-) Acraman v. Morrice, 8 C.B.449. to the seller: Brabin v. Hyde, 32 N.Y. 
 
 [Brewster i'. Taylor, 63 N.Y. 587; Fitz- 519; Artcher v. Zeh, supra. Nor is a 
 
 Simmons v. Woodruff, i Thomp. & C. deposit of money with a third person, by 
 
 (N.Y.) 3.] way of security for the performance of 
 
 (1^) Curtis V. Pugh, 10 Q.B. III; cf. the bargain, a sufficient giving of earnest : 
 
 Hunt V. Hecht, 8 Ex. 814; 22 L.J. Ex. Noakes i/. Morey, 30 Ind. 103; Howe 
 
 293; Grimoldby v. Wells, L.R. 10 C.P. v. Hayward, 108 Mass. 54.] 
 391 ; 44 L.J, C.P. 203. [Wilcox Silver (/) Blenkinsop v. Clayton, 7 Taunt, 
 
 Plate Co. V. Green, 72 N.Y. 17.] 597. 
 
 (f) Rose. 502; e.g. a ring; Sugd. {g) See 2 St. Com. 69, 11.; Walker 
 
 50. [It must be something of value, v. Nussey, 16 M. & W. 302, 305. 
 though the amount may be immaterial : (/;) Bach v. Owen, 5 T.R. 409. 
 
 [' Stone V. Browning, 68 N.Y. 598; Knight v. Mann, 118 Mass. 143; Gorham 
 V. Fisher, 30 Vt. 428.] 
 
 ['^ A part payment must be actually made; the mere unperformed agreement 
 to pay or credit a sum of money is not sufficient: Organ v. Stewart, 60 N.Y. 413; 
 Brabin v. Hyde, 32 N.Y. 519; Walrath v. Richie, 5 Lans. (N.Y.) 362; Teed v. 
 
 190 
 
CHAP. VIII. J THE CONTRACT. 1 64* 
 
 A pecuniary deposit upon a purchase is a part payment {i) ; 
 and so would be the delivery of a bill of exchange or promis- 
 sory note on account or in payment of the price of goods 
 sold (/). 
 
 Admissibility of Parol Evidence, virhere no Written Contract. 
 — If the subject-matter of the sale is not within the statute, 
 or if some act has been done whereby the necessity for a 
 written memorandum is obviated, and there is in fact no 
 written contract, parol evidence is admissible to show on 
 what terms the parties contracted. In Eden v. Blake {k) the 
 printed catalogue described a dressing-case as having silver 
 fittings, but before the sale the auctioneer stated publicly from 
 his box, in the hearing of the defendant, that the catalogue 
 was incorrect, and that the fittings were plated. In an action 
 against the highest bidder for the price of the dressing-case, 
 which he had purchased for less than £,iO, parol evidence of 
 the auctioneer's statement was admitted, the contract not 
 having been reduced into writing. 
 
 Where Written Contract. — When the contract has been 
 reduced into writing, whether writing was necessary or not, 
 parol evidence is inadmissible to vary its terms (/) ; but such 
 evidence is admissible to prove the date at which it was 
 
 (i) Ockenden v. Henly, E.B. & E. 22 Conn. 299; Davis v. Moody, 15 Ga. 
 
 485,493; 27 LJ.Q.B. 361, 363; 4 Jur. 175; Johnson z/. Pollock, 58 Ills. 181 ; 
 
 N.S. 999. Faukboner v. Faiikboner, 20 Ind. 62; 
 
 (J) Griffiths V. Owen, 13 M. & W. Warren v. Crew, 22 Iowa, 315; Lay- 
 
 58,61. cock V. Davidson, ii La. Ann. 328; 
 
 (i) 14 M. & W. 614; 14 L.J. Ex. Eveleth v. Wilson, 15 Maine, 109; 
 
 194. Such evidence would not have Cocke v. Bailey, 42 Miss. 81 ; Bromley 
 
 been admitted, if the auctioneer had z/. Elliott, 38 N.H. 287; Rogers z/. Colt, 
 
 signed the purchaser's name in a book 21 N.J. Law, 704; Van Bokelen ». Tay- 
 
 referring to the catalogue. lor, 62 N.Y. 105 ; Mott v. Richtmeyer, 
 
 {I) Goss V. Lord Nugent, 5 B.&Ad. 57 N.Y. 49; Halliday v. Hart, 30 N.Y. 
 
 58; Noble V. Ward, L.R. 2 Ex. 135; 474; Koehring v. Muemminghoff, 6l 
 
 Knight V. Barber, 16 M. & W. 69; 16 Mo. 403; Hagay v. Hill, 75 Penn. St. 
 
 L.J. Ex. 18; and see anie, pp. 45, 46. 108; Falconer v. Garrison, i McCord 
 
 [Gavinzel v. Crump, 22 Wallace, 308; (So. Car.) 209; Donley d. Bush, 44 
 
 West J/. Kelly, 19 Ala. 353; Richardson Texas, I; Bond v. Clark, 35 Vt. 577; 
 
 z;. Comstock, 21 Ark. 69; Ruiz z;. Nor- Hill v. Peyton, 21 Gratt. (Va.) 386; 
 
 ton, 4 Calif. 359; Beckley v. Munson, Irish v. Dean, 39 Wise. 562.] 
 
 Teed, 44 Barb. (N.Y.) 96; Brand v. Brand, 49 id. 346; Ely v. Ormsby, 12 id. 
 570; Walrath v. Ingles, 64 id. 265; Dow v. Worthen, 37 Vt. 108; Cotterill v. 
 Stevens, 10 Wise. 422.] 
 
 191 
 
*l65 THE CONTRACT. [PART I. 
 
 made iiri) ; to ascertain and identify the parties («), and the 
 subject-matter (p), provided [165] they are sufficiently de- 
 scribed ; to explain the intention of the parties as to the 
 meaning of the terms,' for instance, where goods are sold 
 "complete," to show what was to be done to the goods to 
 render them complete (/) ; and for the purpose of showing 
 that the contract was made subject to a common usage or 
 custom of trade,^ provided such usage or custom is consistent 
 with the terms of the contract {q) ; or that a special and tech- 
 nical meaning is to be given to the words used.^ Where an 
 auctioneer claimed under a written contract certain commis- 
 sion upon the sale of an estate, " if sold by auction or within 
 
 (ot) Hall V. Cazenove, 4 East, 477; Gray (Mas^.) 615, 618, ^cr Thomas, J., 
 
 Reffell z/. Reffell, L.R. I P. & D. 139; citing Baker v. Sanderson, 3 Pick. 
 
 35 L.J.P. 121. (Mass.) 348; Makepeace v. Bancroft, 
 
 • («) Atite, p. 150. 12 Mass. 469; Dryden v. Jepherson, 
 
 {p) Ante, p. 151. [Brown !<. Slater, 18 Pick. (Mass.) 385; Stone v. Clark, 
 
 16 Conn. 192; Farrar v. Stackpole, 6 I Met. (Mass.) 378; Ploward z-. Bates, 
 
 Greenl. (Me.) 154; Ropps v. Barker, 8 Met. (Mass.) 484.] 
 4 Pick. (Mass.) 239; Seaman v. Floge- (/) Sari v. Bourdillon, I C.B.N. S. 
 
 boom, 21 Barb. (N.Y.) 398; Russell v. 188; 26 L.J.C.P. 78. 
 AVerntz, 24 Penn. St. 337; Elfe z'. Gads- (^) Leake, 204 <?/ sey. ; Browne v. 
 
 den, 2 Rich. (So. Car.) 373. Parol Byrne, 3 E. & B. 703; 23 L.J.Q.B. 313; 
 
 evidence is competent to establish the Myers v. Sari, 3 E. & E. 306; 30 
 
 bounds or limits of a grant, indefinite in L.J.Q.B. 9; Spicer z'. Cooper, i Q.B. 
 
 its terms, by showing the acts or prac- 424, where parol evidence was admitted 
 
 tical construction of the parties, or to to explain that "sold 18 pockets Kent 
 
 show that the right granted by a written hops at looi." was a usual way in the 
 
 license had been used and exhausted by trade of expressing that the sale was at 
 
 the grantees : Goodrich v. Longley, i £^ per cwt. 
 
 [' The proper meaning of particular words may be shown by parol evidence : 
 Peisch V. Dickson, i Mason, 9; United States v. Breed, i Sumner, 159; Stone 
 V. Hubbard, 7 Cush. (Mass.) 595, 597; Brown v. Brown, 8 Met. (Mass.) 573, 576; 
 Astor V. Union Ins. Co., 7 Cow. (N.Y.) 202; Sheldon -j. Benham, 4 Hill (N.Y.) 
 1:9; Noyes v. Canfield, 27 Vt. 79.] 
 
 [^ Parol testimony is admissible to add to a written contract those known usages 
 which are supposed to be included by mutual understanding. See Buckner i'. Real 
 Estate Bank, 5 Ark. (Pike) 536; Hx />arie,Con\vay, 4 Ark. 30a, 367; Worthington 
 z/. Curd, 15 Ark. 491 ; Robinson z'. Fiske, 25 Maine, 401; Wilson v. Randall, 67 
 N.Y. 338 ; Dent v. North American Steamship Co., 49 N.Y. 390 ; Jones zi. Brad- 
 ner, 10 Barb. (N.Y.) 193; Lawrence :>. Gallagher, 10 Jones & Spencer (N.Y.) 
 309; Vliet V. Camp, 13 Wise. 198.] 
 
 [' Moran i'. Prather, 23 Wallace, 492; Seymour v. Osborne, 11 Wallace, 516; 
 Barlow v. Lambert, 28 Ala. 704; Broadwell v. Broadwell, i Gilman (Ills.) 599; 
 Williams v. Woods, 16 Md. 220; Smith v. Clayton, 29 N.J. Law, 357; Hartwell !'. 
 Camman, 10 N.J. Eq. 128; Eaton v. Smith, 20 Pick. (Mass.) 150.] 
 
 192 
 
CHAP. VIII.] THE CONTRACT. l66* 
 
 two months after," and a sale of the estate was effected within 
 two calendar months, though not within two lunar months, 
 after the auction, the court held that "month" denoted at 
 law a lunar month, unless the context showed that the parties 
 intended a calendar month, but that evidence would have 
 been admissible to show that, according to the usage of auc- 
 tioneers, a "month" signifies a calendar month (r). And in 
 cases where writing is not necessary, if it appears upon the 
 face of the writing that it was not intended to contain all the 
 terms of the agreement, parol evidence is admissible to prove 
 what were the terms of the contract ; ^ thus, a mere informal 
 receipt given and accepted on the sale of a horse was held 
 not to exclude parol evidence of a warranty given at the sale (s). 
 Such evidence is, moreover, admissible, by way of defence, 
 to show that one of the terms, as that the [166] goods sold 
 should be equal to sample, was omitted by mistake {(), or that 
 both the parties have contracted under a mutual mistake as 
 to the subject-matter of the agreement (21). And where there 
 has been a verbal alteration as to the mode of performing the 
 contract, it may be enforced by the party who assented to it, 
 though not by the party at whose request it was made (v). 
 
 (r) Simpson v. Margitson, 1 1 Q.B. (;() Raffles v. Wichelhaus, 2 H. & 
 
 23; 17 L.J.Q.B. 81. No such evidence C. 906; 33 L.J. Ex. 160; McCoUin z/. 
 
 was in fact offered. Cf. Jolly w. Young, Gilpin, 29 W.R. 408; 44 L.T.N.S. 914. 
 I Esp. 186. (v) Plevins v. Downing, i C.P.D. 
 
 (i) Allen I/. Pink, 4 M. & W. 140. 220; 45 L.J.Q.B. 695. ["The parol 
 
 [The real, terms of sale may always be evidence," says Mr. Justice Wells, in 
 
 shown, although a receipt or bill of Glass v. Hulbert, 102 Mass., 24, 35, "is 
 
 parcels has been given : Harris v. John- introduced, not to establish an oral 
 
 ston, 3 Cranch, 311; Fletcher v. Wil- agreement independently of the writing, 
 
 lard, 14 Pick. 464 ; Bradford v. Manley, but to show that the written instrument 
 
 13 Mass. 139; George v. Joy, 19 N.H. contains something contrary to or in ex- 
 
 544; Wallace v. Rogers, 2 N.H. 506.] cess of the real agreement between the 
 
 (/) Borrowman v. Rossell, 16 C.B. parties, or does not properly express 
 N.S. 68; 33 L.J.C.P. iii. [It has been that agreement": citing Higginson v. 
 held, by some extension of the ordi- Clowes, 15 Vesey, 516; Clowes v. Hig- 
 nary rule, that parol evidence may be ginson, i Ves. & B. 524; Squier v. 
 received to show that an option was Campbell, i Myl. & Cr. 459, 480. That 
 intended to be left with one of the par- the plaintiff who declares upon the writ- 
 ties, when the writing is silent on this ten agreement as modified by the verbal 
 point : Chalfant v. Williams, 35 Penn. alteration cannot recover, see Rogers v. 
 St. 212.] Atkinson, i Kelly (Ga.) 12; Whittieri/. 
 
 [' Sheffield v. Page, i Sprague's Decisions, 285; Lapham v. Whipple, 8 Met. 
 (Mass.) 59; Lewis v. Gray, i Mass. 297.] 
 
 193 
 
*i67 
 
 THE CONTRACT. 
 
 [part I. 
 
 A written contract may be rescinded by parol ; but strict 
 proof of such rescission would be required (w). 
 
 The Stamp Act. — The Stamp duties, so far as they relate 
 to the subject-matter of this work, are now regulated by the 
 Stamp Act, 1870 {x), by which the former progressive duty is 
 abolished {y), and by which, subject to certain exceptions {s), 
 a uniform duty of 6d. is imposed upon any "agreement or 
 any memorandum of an agreement made in England or Ire- 
 land under hand only {a), or made in Scotland without any 
 clause of registration, and not otherwise specifically charged 
 with any duty, whether the same be only evidence of a con- 
 tract, or obligatory upon the parties from its being a writ- 
 ten {b) instrument" (c). 
 
 [167] Agreement, what is, Within the Act. — To fall within 
 the statute, the agreement must be in writing {d), and the 
 written instrument must be more than a mere proposal ' : it 
 " must have been made with the intention of containing in 
 itself the terms of an agreement between the parties '' {e) and 
 must, moreover, it would seem, have been signed by one of 
 the parties or his agent (/). But it is not necessary that it 
 
 Dana, lo Allen (Mass.) 326; Cummings 
 V. Arnold, 3 Met. (Mass.) 486; Blood 
 V. Goodrich, 9 Wend. (N.Y.) 68 ; Bryan 
 V. Hunt, 4 Sneed (Tenn.) 543; Dana 
 V. Hancock, 30 Vt. 616.] 
 
 (10) Goss V. Lord Nugent, 5 B. & Ad. 
 58; Fry, 445. 
 
 (x) 33 & 34 Vict. c. 97. For the 
 principal portions of the act, see Appen- 
 dix, j!'!?^/, pp. 402, et seq. 
 
 (/) The number of words in any 
 instrument chargeable under the act is, 
 therefore, now immaterial. 
 
 (2) Post, pp. 168, 169. 
 
 (a) I.e. instruments not under seal : 
 Chadwicke v. Clarke, i C.B. 700; cf. 
 Walker v. Giles, 6 C.B. 662, 700, n. 
 An agreement under seal is chargeable 
 with duty as a deed : Robinson v. Dry- 
 borough, 6 T.R. 317. 
 
 (f) The terms "write,'' "written,'' 
 and " writing " include every mode in 
 
 [' See Boyd u. Hood, 57 Penn. St. 
 376.] 
 
 which words or figures can be expressed 
 upon material : s. 2, sub-s. 3. 
 
 (c) Schedule, tit. " Agreement," 
 post, p. 422. 
 
 ((/) See preceding page, note (i). 
 
 (e) Per Parke, B., in Knight v. Bar- 
 ber, 16 M. & W. 66, 70; 16 LJ. Ex. i8. 
 Therefore, a written proposal accepted 
 by parol is admissible in evidence, though 
 unstamped : Drant v. Brown, 3 B. & C. 
 665; 5 D. &R. 582. 
 
 (/) Ramsbottom v. Tunbridge, 2 
 M. & S. 434, where lands had been let 
 by auction, and the auctioneer had 
 handed to the highest bidder a written 
 paper, containing a description of the 
 lands, and specifying the term for which 
 they were let, and the rent payable. 
 The paper was unstamped; but not 
 having been signed by either of the par- 
 ties, or their agents, was admitted in 
 evidence : Hawkins v. Warre, 3 B. & C. 
 
 )8; Crocker v. Foley, 13 Allen (Mass.) 
 
 194 
 
CHAP. VIII.] THE CONTRACT. l68* 
 
 be such a memorandum as Would satisfy the Statute of 
 Frauds, provided it is evidence of a material part of the con- 
 tract (g). An agreement to enlarge the time for performing 
 a prior agreement requires to be stamped, where the former 
 agreement required it (/z). 
 
 Broker's Contract Note. — A broker's note of a purchase of 
 shares, sent to his principal, is not an agreement {i) ; but it 
 requires a id. stamp as a contract note (7). 
 
 Agreement for a Lease. — An agreement for a lease or tack, 
 or with respect to the [168] letting of any lands, tenements 
 or heritable subjects, for any term not exceeding thirty-five 
 years, is liable to the same duty as a lease (/&). Every con- 
 tract which operates as a demise of realty for any determi- 
 nate term is a lease (/). A lease containing an agreement to 
 take the fixtures cannot be given in evidence without a lease 
 stamp, though only used in an action for the value of the 
 fixtures, and though it has an agreement stamp (;«). And a 
 lease containing a distinct agreement not ancillary to the 
 lease requires stamps of both kinds («). 
 
 Exemptions. — The schedule to the act, in the portion re- 
 lating to agreements, contains four exemptions from stamp 
 duty, of which the first and third are the only ones which call 
 for notice here {0). 
 
 The first is an "Agreement or memorandum the matter 
 whereof is not of the value of ;^S." And, since a separate 
 
 690; 5 D. & R. 512; and see observa- (7) 33 & 34 Vict. i;. 97, s. 6g; and 
 
 tions in Walker v. Giles, 6 C.B. 662, Schedule, sul>. tit. " Contract note," for 
 
 700, note, on Chadwicke v. Clarke, i definition of which, see 41 & 42 Vict. k.. 
 
 C.B. 700, where an unsigned draft 15, s. 26, /orf, p. 410, a. 
 agreement was held inadmissible, be- (/6) 33 & 34 Vict. c. 97, s. 96, sub-s. 
 
 cause unstamped. I. But a lease made in conformity with 
 
 (g) Ramsbottom v. Mortley, 2 M. such an agreement duly stamped is liable 
 
 & S. 445, a similar case to Ramsbottom to a duty of 6^. only: iiit^. sub-s. 2. For 
 
 V. Tunbridge, uii supra, with this dif- duties chargeable on leases, see post, pp. 
 
 ference, that the paper had been signed 416, 432. 
 by the auctioneer. It was held that it (/) Add. Con. 1096. 
 
 ought lo have been stamped, although (m) Corder v. Drakeford, 3 Taunt, 
 
 the name of one of the parties did not 382. 
 
 appear upon it: approved in Glover v. (n) Coster v. Cowling, 7 Bing. 456; 
 
 Halkett, 2 H. & N. 487; 26 L.J. Ex. 416. Lovelock v. Franklyn, 8 Q.B. 371. 
 
 (/4) Bacon z/. Simpson, 3 M.&W. 78. (0) The other exemptions will be 
 
 («■) Tomkins v. Savory, 8 B. & C. 704. fonndpost, p. 422. 
 
 195 
 
*l6g THE CONTRACT. [PART I. 
 
 contract arises in respect of -each lot sold at an auction (/), 
 it is not necessary that a memorandum, signed by the pur- 
 chaser, referring to the particulars on which his name is 
 marked by the auctioneer against the several lots purchased 
 by him, be stamped, although the aggregate exceed ;£'5 in 
 value, if no single lot te of that price {q). But if one or 
 more of the lots so referred to exceed £(,, a separate stamp 
 must be affixed for each lot (of land) which exceeds that 
 sum {r). 
 
 [169] The third is an " Agreement, letter or memorandum 
 made for, or relating to, the sale of any goods, wares or mer- 
 chandise." As to what are goods, &c., the reader is referred 
 to the remarks above made on the same words, as used in the 
 17th section of the Statute of Frauds {s). Where the de- 
 fendant signed and gave to the plaintiff, an auctioneer, the 
 following: "Memorandum oi £ioy had by me of S. (plain- 
 tiff), being an advance on books sent in for immediate sale 
 by auction," the memorandum was held to be within the ex- 
 emption, as relating to the sale of goods {t). But if the main 
 object of the agreement be the obtaining money upon a 
 pledge of goods, the sale of them being merely collateral 
 thereto, the instrument must be stamped {u). An agreement 
 for the sale of goods and the goodwill of a business requires a 
 stamp {v). 
 
 Ships. — Instruments for the sale or transfer of any ship or 
 vessel, or of any part, interest or share therein, are exempt 
 from all stamp duties (w). 
 
 (p) See an/n, p. 148. 17 L.J. Ex. 267, where it was held that 
 
 (y) Emmerson v. Heelis, 2 Taunt, the following: "Memorandum that T. 
 
 38; Roots V. Lord Dormer, 4 B. & Ad. has sold to G. all the goods, stock in 
 
 77. trade and fixtures in &c." ought to have 
 
 (r) James v. Shore, I Stark, 426 ; been stamped as a conveyance. 
 Watling V. Horwood, 12 Jur. 48; 33 & (0 Southgate v. Bohn, 16 M. & W. 
 
 34 Vict. u. 97, ss. 7, 8. 34. 
 
 (i) An/e, pp. 148 ei seq. A contract («) Smith v. Cator, 2 B. & Aid. 778. 
 
 for the sale of growing crops within [United States v. Smith, I Sawyer, C.C. 
 
 sect. 4 of the Statute of Frauds requires 192.] 
 
 a conveyance stamp : Cattell z;. Gamble, {v) South z». Finch, 3 Bing.N.C. 506. 
 
 5 Bing. N.C. 46 ; 6 Sco. 737 ; and so (a/) 33 & 34 Vict. v,. 97, Schedule, 
 
 does a memorandum of the actual sale sub. tit. " General Exemptions." 
 of fixtures: Horsfall v. Hey, 2 Ex.778; 
 
 196 
 
CHAP. VIII.J THE CONTRACT. I70* 
 
 Stamp, how Affixed. — The duty imposed must, in general, 
 be denoted by an impressed stamp (x) ; but, in the case of 
 an agreement, an adhesive stamp may be employed, which 
 is to be cancelled by the person by whom the agreement 
 is first executed or signed (j/). Where the agreement is 
 contained in several [170] documents sufficiently referring 
 to one another (z), it is sufficient if any one of them be 
 stamped (a). 
 
 The instrument should be stamped at the time of execu- 
 tion or signature, though, in most cases, it may be stamped 
 subsequently on payment of the duty and a penalty oi £io 
 and, where the duty exceeds ;^io, interest on the duty at 
 5 per cent, {b) 
 
 Effect of Want of Stamp. — An unstamped, or insufficiently 
 stamped, instrument is inadmissible in evidence, except in 
 criminal cases {c)} But it may be stamped by the officer of 
 the court on payment of the duty and a further sum oi £,i in 
 
 {x) lb. s. 23. {b') 33 & 34 Vict. c. 97, s. 15. In 
 
 {y) lb. s. 36. S. 24 imposes a pen- certain cases the commissioners have 
 
 alty of £ia for wilfully neglecting to power to remit the penalty: see ib. s. 
 
 cancel an adhesive stamp; and see 26. 
 
 further s. 25, as to penalties for frauds (<:) Sect. 17. It must be remembered 
 
 in relation to adhesive stamps. that parol evidence cannot be given of 
 
 (z) See ante, pp. 157 et seq. the terms of a written agreement, al- 
 
 (ff) Peate v. Dicken, i C. M. & R. 422. though such agreement need not have 
 
 [Bondurant v. Crawford, 22 Iowa, 40.] been in writing. 
 
 [' Congress has no power to require a revenue stamp to be affixed to process 
 of the state courts : Smith v. Short, 40 Ala. 385; Warren v. Paul, 22 Ind. 276 ; 
 Fifield V. Close, 15 Mich. 505; Walton v. Bryenth, 24 How. Pr. (N.Y.) 357; 
 Jones V. Keep, 19 Wise. 369; or to any document which makes a part of the 
 case: Smyth v. Ripley, 32 Conn. 156; Depuy v. Schuyler, 45 Ills. 306; 
 Bear o. Hays, 36 Ills. 280; Reed v. Curry, 35 Ills. 536; Prather v. Pritchard, 
 26 Ind. 65; Toledo R.R. Co. v. Nordyke, 27 Ind. 95; Violet v. Heath, 
 26 Ind. 178; Anderson v. Coble, id. 329; Topf. v. King, id. 391 ; Bray ton 
 V. Delaware, 16 Iowa, 44; Sampson v. Barnard, 98 Mass. 359; Cardell v. 
 Bridge, 9 Allen (Mass.) 355; Peirce u. Huddleston, 10 Minne. 131 ; Bowers v. 
 Beck, 2Nevada, 139; State v. Taylor, 15 Ohio St. 137; McGovern v. Hoesback, 
 53 Penn. St. 176; Gorman v. Steed, i W. Va. I; or to the means or instruments 
 devised by the states for the collection of their own revenues : Sayles v. Davis, 22 
 Wise. 225. It is not conceived to be worth while to state here the decisions which 
 have been made in this country as to the validity or admissibility in evidence of 
 unstamped instruments, though the above-cited decisions have not been universally 
 agreed to.] 
 
 197 
 
*I70 THE CONTRACT. [PART I. 
 
 addition to the ordinary penalty {d). Where two separate 
 agreements, each requiring a stamp, appear on one piece of 
 paper, the want of a stamp on the one will not affect the 
 other, if properly stamped {e). 
 
 (d) Sect. 16. For further informa- Stamp Duties Digest, and Roscoe, pp. 
 tion on the stamp duties, see Griffith's 220 ei seq. 
 
 (f) Powell V. Edmunds, 12 East, 6. 
 198 
 
CHAP. IX.] THE DEPOSIT. 17I* 
 
 [171] 
 CHAPTER IX. 
 
 THE DEPOSIT. 
 
 Deposit, What. — It is usual, at auction-sales, to require part 
 of the purchase-money to be paid down, as a guarantee for the 
 fulfilment of the contract.^ This sum, which varies from 5 
 to 25 per cent, of the purchase-money, is called the deposit. 
 Payment of the deposit is considered as a payment of part of 
 the purchase-money, and not as a mere pledge {a). 
 
 To Whom Paid. — The deposit is commonly made payable, 
 in London, to the auctioneer ; but in the country, upon sales 
 of estates, to the vendor's solicitor {b). It is the opinion of 
 Mr. Dart that, upon a sale of land, it should not be paid to a 
 mere agent for sale, without express authority from the ven- 
 dor {c) ; but upon a sale by auction of goods for ready money 
 
 (a) Palmer v. Temple, 9 A. & E. (i5) Dr. Bateman's opinion was that 
 508, 520; I P. & D. 379, 387; anle, the deposit ought to be made payable 
 p. 164. [Kelly V. Thompson, loi Mass. to the vendor himself. Considering, 
 291.] The purchaser cannot elect to however, that the sale is frequently con- 
 forfeit his deposit and avoid the con- ducted in the vendor's absence, the or- 
 tract: Crutchley v. Jerningham, 2 Mer. dinary practice seems more convenient; 
 502, 506. [Curtis V. Aspinwall, 114 and, as Mr. RoUa Rouse has pointed 
 Mass. 187; Wood v. Mann, 3 Sumner, out, the deposit would in many cases, 
 C.C. 318. Upon a sale by auction the e.g., where the property is mortgaged to 
 deposit is not forfeited by the purchas- a party at a distance, ignorant of the 
 er's failure to comply with the terms of sale, be safer in the hands of a stake- 
 sale, when there is no provision to that holder. 
 
 effect in the terms : Bleeker z/. Graham, {c) Dart, 191. The conditions ought 
 
 2 Edwards Ch. (N.Y.) 647.] always to provide to whom the deposit 
 
 is to be paid. 
 
 [' Even at a forced sale, the requirement of a reasonable deposit is unobjec- 
 tionable : Pope V. Burrage, 115 Mass. 282; and is indispensable if insisted upon: 
 Hewlett V. Davis, 3 Edwards Ch. (N.Y.) 338. Where a decree for the sale of 
 property provided that a portion of the purchase-money should be paid in cash, 
 the auctioneer's requirement of a deposit of a specific part of this payment is not 
 such a departure from the terms of the decree as to prevent the ratification of the 
 sale: Maryland Permanent Land and Building Society. !». Smith, 41 Md. 516. A 
 demand for a deposit of one-fourth of the cash payment would be a reasonable 
 precaution : Marshall v. Rose, 86 Ills. 374.] 
 
 199 
 
* 
 
 172 THE DEPOSIT. [PART I. 
 
 it may be so paid, the auctioneer being, in the absence of 
 [172] any condition to the contrary, the agent of the vendor 
 to receive the whole price {d). 
 
 How Paid. — If any particular time or mode be prescribed 
 for payment of the deposit, the purchaser cannot safely pay it 
 at any other time or in any other mode, except to the vendor 
 himself or by the direction of the latter {e). A purchaser is 
 not entitled to set off a debt due to him from the auctioneer 
 as payment of the deposit, unless he can show that the 
 auctioneer was authorized by his principal to retain the 
 deposit in respect of a debt due to him from the latter (_/"). 
 No objection can, however, be made, as between the vendor 
 and the purchaser, to the whole of the deposit stipulated for 
 in the conditions not having been paid, if the vendor after 
 the sale has agreed to accept a less sum {g). 
 
 It is laid down in Story on Agency {h) that : " An agent 
 authorized to receive payment has not an unlimited authority 
 to receive it in any mode which he may choose, but he is 
 ordinarily deemed entrusted with the power to receive it in 
 money only." ' And it is undoubted that the auctioneer has 
 
 (rf) If the conditions provide merely (y) Barker v. Greenwood, 2 Y. & C. 
 for the deposit being paid to the auc- 414; Young v. White, 7 Beav. 506 ; 
 tioneer, that appears to exclude his Hanley v. Cassan, 11 Jur. 108S; Sweet- 
 authority to receive the whole price: ing z*. Pearce, 9 C.B.N.S. 534; 7 Jur. 
 Sykes v. Giles, 5 M. & W. 645, 650 ; N.S. 800. [For the authority to sell 
 Mynn v. Joliffe, i Moo. & R. 326. property cannot give the agent any 
 [Thompson v. Kelly, loi Mass. 291.] authority to sell or pledge the goods to 
 
 (f) Dart, 191 ; Young i-. Guy, 8 his own creditor for his own debt : Par- 
 
 Beav. 147. A purchaser is not liable sons i/. Webb, 8 Maine, 38; Wheeler & 
 
 for any loss that may arise from his fol- Wilson Manufg. Co. v. Givan, 65 Mo. 
 
 lowing the express directions of the 89 ; Holton v. Smith, 7 N.H. 446 ; 
 
 vendor: Warwicke v. Noakes, i Peake, Stewart v. Woodward, 50 Vt. 78; Victor 
 
 98; Hawkins I'. Rutt, 2i(;. 248; Eyles z;. Sewing Machine Co. z'. Heller, 44 Wise. 
 
 Ellis, 4 Bing. 112. [If the terms of sale 265.] 
 
 provide that a portion of the purchase- {g) Hanson v. Roberdeau, Peake, 
 money shall be paid within a certain N.P.C. 163; cf. Ex parte Gwynne, 12 
 time, and the auctioneer is authorized Ves. 379, 383. But if the auctioneer, 
 to receive this sum, his authority is not without express authority, allow the pur- 
 terminated by the expiration of this chaser to pay part only, the vendor will 
 time, unless his reception of the money not be bound thereby, 
 is expressly prohibited by the principal : (Ji) Story, Ag. § 98. 
 Pinckneyj'.Hagadorn,iDuer.(N.Y.)89.] 
 
 [' An auctioneer cannot bind his principal by accepting in payment of a deposit 
 required by the terms of sale to be made in cash a check upon a bank in which 
 
 200 
 
CHAP. IX. J THE DEPOSIT. 1 73* 
 
 no general authority to take a bill of exchange in payment 
 of money which he may be authorized to receive (?'). Pay- 
 ment [173] by cheque, however, would probably be treated as 
 equivalent to a payment in money IJ). The point has not 
 been directly decided, but it is indirectly touched upon in 
 the case of Williams v. Evans {k). There W. (the plaintiff) 
 had employed L., an auctioneer, to sell certain goods under 
 the following, among other, conditions : " Each purchaser 
 ... to pay down into the hands of the auctioneer ... a 
 deposit of ... ; remainder, or balance, to be paid on or 
 before delivery of the goods or lots purchased. The lots 
 sold . . . must be duly paid for, on delivery, to the auc- 
 tioneer. . . . The goods may remain on the premises till 
 . . . the 3rd of Nov. ..." The sale took place on the 
 2nd of Nov., but, the purchaser of one of the lots not hav- 
 ing complied with the conditions, the lot was, on the 4th of 
 Nov., resold to E. for £47 "js., on the terms contained in the 
 conditions, and was delivered to him on the 7th of Nov. On 
 the latter day W., having reason to doubt L.'s solvency, told 
 E. not to pay any money to L. It appeared that E. had on 
 the 4th of Nov. paid L. ^^32 in gold and on the following 
 day had given him a bill of exchange for ;^IS Ts., which was 
 duly honoured on the 9th of Nov., and that L. had agreed to 
 accept the bill as cash. L. had not paid over any of the 
 money to W. At the trial the jury found a verdict for E. ; 
 but the point was subsequently argued before the Court of 
 Queen's Bench, whether L. had authority to give credit by 
 taking a bill of exchange ; and the following judgment of the 
 court (/) was delivered by Blackburn, J. : " The question on 
 
 (i) See infra, p. 1 74. and should be for the deposit alone, not 
 (_/) " If payment is made by cheque, including other moneys : Bridges f. Gar- 
 and the cheque is honoured, that is a rett, L.R. 4 C.P. 5S0.] 
 payment in cash :" /f?- Cockburn, C.J. , {It) L.R. i Q.B. 352; 35 L.J.Q.B. 
 in Bridges v. Garrett, L.R. 5 C.P. 451 ; ill ; 13 L.T.N.S. 753; 14 W.R. 330. 
 39 L.J.C.P. 251. [But the check should (/) The court consisted of Black- 
 be capable of being immediately cashed, burn, Mellor and Shee, JJ. 
 
 the drawer has then no funds, even though the check is subsequently made good 
 and is paid to the auctioneer on presentation: Broughton v. Silloway, 114 Mass. 
 71, citing Sykes v. Giles, 5 M. & W. 645; Williams v. Evans, L.R. i Q.B. 352; 
 Taylor v. Wilson, II Met. 44; Story on Agency, § 209.] 
 
 201 
 
* 1 74-1 75 THE DEPOSIT. [pART I. 
 
 the point reserved at the [174] trial is, whether, or not, a 
 payment to an auctioneer by a bill of exchange is a valid 
 payment. I think, on the authorities, it is not. If the bill 
 had become due and been paid before the authority of the 
 auctioneer to receive payment had been revoked, it would 
 have amounted to much the same thing as cash. In the 
 present case the authority was revoked after the bill was 
 given, but before maturity, that is, before the auctioneer 
 received cash for the sum of ^^15 "js. The passage cited from 
 Story (in) shows that an agent authorized to receive payment 
 has ordinarily authority to receive it only in cash. In Sykes 
 V. Giles («) the Court of Exchequer expressed a strong opinion 
 that an auctioneer cannot receive payment from a buyer, 
 except in cash. If the payment had been by cheque, then it 
 might be a question for the jury — since it is the custom to 
 pay by cheques — -whether the payment would be good or 
 not. In Thorold v. Smith {0), where a payment was made 
 in the city by a goldsmith's note to a servant sent by his 
 master to receive money. Holt, C.J., said he thought it more 
 a matter of evidence than of law, and any jury in Guildhall 
 would find payment by a bill (/) to be a good payment, it being 
 the common practice in the city (q). I think, on the authority 
 of Sykes v. Giles, payment by a bill of exchange to an auc- 
 tioneer is not a valid payment for the purpose of discharging 
 the debtor, and the verdict must therefore be entered for the 
 plaintiffs for ;£i5 "js." The conclusion to be drawn would 
 appear to be that the auctioneer will be justified, provided 
 he use reasonable caution, in taking a cheque,^ [175] and the 
 
 {ni) Story, Ag. § 98, see supra, (/) Meaning a goldsmith's note, 
 
 (re) 5 M. & W. 645. (jj) I.e. in the year 1705, when 
 
 {0) 1 1 Mod. 87. Thorold v. Smith was decided. 
 
 [' But see Broughton v. Silloway, II4 Mass. 71, referred to supra, p. 172, n. i. 
 A check is an order for immediate payment, and is regarded as a form of pay- 
 ment in cash : Smith v. Ferrand, 7 B. & C. 25 ; Everett v. CoUins, 2 Campbell, 
 515; Woodville v. Reed, 26 Md. 179; Ocean Tow-Boat Co. v. The Ophelia, 11 
 La. Ann. 28. It is priiyid facie merely a conditional payment of the debt for 
 which it is given, becoming complete only when it is itself paid : Harrison v. 
 Hicks, I Porter (Ala.) 433; Ocean Tow-boat Co. v. Ophelia, ii La. Ann. 28; 
 Marrett v. Brackett, 60 Maine, 524; Weddigen v. Boston Elastic Fabric Co., 100 
 Mass. 422; Dennie v. Hart, 2 Pick. (Mass.) 204; Barnet v. Smith, 10 Foster 
 (N.H.) 256; People v. Baker, 20 Wend. (N.Y.) 602; Tanner v. Bank of Fox 
 
 202 
 
CHAP. IX.J THE DEPOSIT. 1/5* 
 
 purchaser in paying by cheque, in all cases where payment 
 by cheque is customary. On a sale of goods, however, it will 
 be safer for the auctioneer to withhold delivery, until the 
 cheque has been cashed. 
 
 Duties and Liabilities of Depositary. — If, by the conditions 
 of sale, the auctioneer or solicitor is the party to whom the 
 deposit is payable, he ought to require payment without de- 
 lay; if he gives credit, he does so entirely at his own risk {r). 
 In the case of Hibbert v. Bayley (.f) a ship was put up for sale 
 by auction, one of the conditions being that the highest bid- 
 der should immediately sign the contract and pay a deposit, 
 or the ship should be put up again. The auctioneers allowed 
 the highest bidder to go away without signing the contract 
 or paying the deposit, he having promised to return in half 
 an hour with the deposit. He did not come back and could 
 not be found, and the owner subsequently sold the ship at a 
 less price than the pretended purchaser had bid. Erie, C.J., 
 left it to the jury to say whether the auctioneers had been 
 guilty of a neglect of duty in not demanding the deposit and 
 reselling the ship if the purchaser did not pay. The jury 
 found a verdict against the auctioneers, but with nominal 
 damages only, as the owner had not, in their opinion, suffered 
 any real injury. 
 
 If the deposit is paid to the solicitor, or, it is conceived, 
 to the auctioneer {t), as agent for the vendor, he must pay 
 
 (r) Williams v. Millington, I H. Bl. (f) Generally, the auctioneer re- 
 
 8i, 85; Wiltshire v. Sims, i Camp. 258. ceives the deposit as stakeholder; but 
 
 [For the bare authority to sell is not an there appears to be no reason why he 
 
 authority to sell on credit : State v. should not receive it expressly as agent 
 
 Delafield, 8 Paige (N.Y.) 527.] for the vendor; and Mr. Dart (V. & P. 
 
 (j) 2 F. & F. 48. [Trustees selling 948) says that it is a common practice 
 
 real estate under a power will be held for him to receive it in that capacity, 
 
 responsible for the deposit forfeited by The fact that he did so receive it will, 
 
 a purchaser who has failed to complete however, require stricter proof in his 
 
 his purchase : Campbell v. Johnston, I case' than in that of the solicitor : see 
 
 Sandf. Ch. (N.Y.) 148.] Edgell v. Day, L.R. i C.P. 80; H.&R. 
 
 8; 35 L.J.C.P. 7. 
 
 Lake, 23 How. Pr. (N.Y.) 399; People v. Howell, 4 Johns. (N.Y.) 296; Kelty 
 V. Second Bank, 52 Barb. (N.Y.) 328; Mclntyre v. Kennedy, 29 Penn. St. 448; 
 Patton V. Ash, 7 Serg. & R. (Penn.) 116. And the seller is of course not bound 
 to accept a check : Clarke v: King, 2 C. & P. 286.] 
 
 203 
 
*l'j6 THE DEPOSIT. [pART I. 
 
 [176] it over to the latter on demand {ii) ; though, if he 
 neglect to do so, he is not accountable for it to the purcha- 
 ser {v). It seems, however, that it may be recovered from 
 him if the purchaser paid it to him under protest, and his 
 principal had no right to receive it (w). His liability for 
 money received by him on his principal's behalf is dealt with 
 in a subsequent chapter {x). 
 
 Generally speaking, the auctioneer {y), and sometimes the 
 solicitor {z), receives the deposit as a stakeholder,' in which 
 case it is his duty, unless otherwise directed by both parties, 
 to retain it in his possession, until the contract is either car- 
 ried into effect, or rescinded, and the party entitled is ascer- 
 tained (a) ; and neither party can determine his authority to 
 so retain it, without the consent of the other {b). If the auc- 
 tioneer return the deposit to the purchaser without proper 
 justification, he will be liable for it to the vendor. But if the 
 contract be rescinded, and the deposit recovered, by the pur- 
 chaser, on the ground of fraud on the part of the auctioneer, 
 the vendor, though innocent of the fraud, cannot recover the 
 
 {tt) Edgell V. Day, L.R. i C.P. 80; (jf) Ch. XII. 
 
 H. & R. 8; 35 L.J.C.P. 7. [An auc- (/) Edgell v. Day, ubi supra. 
 
 tioneer selling succession property under (z) E.g., where he receives it in his 
 
 an order of the court must return his own name simply, and not as agent for 
 
 sale and the proceeds into court : Minor the vendor : Wiggins v. Lord, 4 Beav. 
 
 V. Barker, 26 La. Ann. 160.] 30. " The purchaser can always con- 
 
 {v) Bamford v. Shuttleworth, 1 1 A. vert the solicitor into a stakeholder by 
 
 & E. 926; Hurley v. Baker, 16 M. & depositing the money with him on the 
 
 W. 26. [If he has received the money terms that he shall hold it as such; " 
 
 as agent for his principal, the owner of per Keating, J., in Edgell v. Day, ubi 
 
 the property, and not as a mere stake- supra ; sed qu. where the contract 
 
 holder, he is bound to pay it over to his has been signed, and the conditions 
 
 principal, and has no right to return it provide for the deposit being paid to 
 
 to the person from whom he received him " as agent for the vendor." 
 
 it: Hancock t/. Gomez, 58 Barb. (N.Y.) (a) Burrough v. Skinner, 5 Burr. 
 
 490; Murray i;. Vanderbilt, 39 id. 140.] 2639; Edwards v. Hodding, 5 Taunt. 
 
 [w) Smith V. Sleap, 12 M. & W. 815; I Marsh. 377; Harington z/. Hog- 
 
 585, 588. [Or if, being a mere stake- gart, i B. & Ad. 577. [Carew v. Otis, 
 
 holder he has paid it over to his prin- i Johns. (N-V.) 418.] 
 
 cipal after notice that the latter is not (Ji) Marryat v. Broderick, 2 M. & W. 
 
 entitled to it : Bend z*. Hoyt, 13 Peters, 369; Emery v. Richards, 14 M. & W. 
 
 263; Herrick v. Gallagher, 60 Barb. 72S; 15 L.J. Ex. 49. 
 (N.Y.) 566; Hearsey I'. Pruyn, 7 Johns. 
 (N.Y.) 179.] 
 
 [' See Bleaker v. Graham, 2 Edwards Ch. (N.Y.) 647.] 
 204 
 
CHAP. IX. j THE DEPOSIT. 1 77* 
 
 amount from the auctioneer [177] as money had and received 
 to his use (c). A stakeholder who has prematurely paid over 
 the deposit to the vendor will be liable to the purchaser for 
 the amount, if the contract is subsequently rescinded through 
 the default of the vendor ; ^ nor is he, in strictness, entitled 
 to notice of the rescission (d). If the auctioneer, after having 
 paid over the deposit to his principal, has been subsequently 
 obliged to refund the amount to the purchaser, he can re- 
 cover over against his principal {e) ; and where he has incurred 
 costs in defending an action for the deposit by the express or 
 implied authority of his principal, he can recover from the 
 latter the costs so incurred (/).^ 
 
 Payment Over and Investment of Deposit. — As SOOn as it 
 is determined which of the parties is entitled to the deposit, 
 the stakeholder must pay it over to that party (g-). And the 
 auctioneer is justified in paying it over to him, even though, 
 to the knowledge of the auctioneer, he is in embarrassed cir- 
 cumstances ; provided that he has not committed an act of 
 bankruptcy (A). Where an auctioneer, employed to sell prop- 
 erty under an order of the Court, sent the deposit to the firm 
 
 (c) Murray D. Mann, 2 Ex. 538; 17 Murray v. Mann, 2 Ex. 538, 540; 17 
 
 L.J. Ex. 256; cf. Stevens v. Legh, 2 L.J. Ex. 256, 257. 
 C.L.R. 251. (/) Spurrier v. Elderton, 5 Esp. I. 
 
 (^) Gray v. Gutteridge, i Man. & (f) And if he refuse to pay it over 
 
 R. 614; 3 C. & P. 40; Duncan v. Cafe, after demand made, interest may be 
 
 2 M. & W. 244. In fairness to the recovered, by way of damages, after 
 
 auctioneer notice should, however, be notice given : Gaby v. Driver, 2 Y. & J. 
 
 given. As to the particulars to which 549 ; 3 & 4 Will. IV. c. 42, s. 28. As 
 
 the auctioneer is entitled in such an to interpleader, see J>os/, Ch. XI. 
 action, see Roberts v. Rowlands, 3 M. (/() White v. Bartlett, 9 Bing. 378. 
 
 & W. 543; 6 Dovvl. P.R. 553. As to what is notice of an act of bank- 
 
 (f) Even, perhaps, when he has ruptcy, see anie, p. 124. Under what 
 
 been obliged to refund it through his circumstances an auctioneer can set up 
 
 own fraud, his principal being innocent : the Jus tertii against his principal, see 
 
 ante, p. 34. 
 
 [' But where the purchaser has by his acts led the auctioneer to pay over the 
 money to the vendor, the general rule that the auctioneer is the stakeholder of 
 both parties ceases to apply; and the purchaser cannot then hold the auctioneer 
 liable for the deposit : Ellison v. Kerr, 86 Ills. 427.] 
 
 P The auctioneer is bound as a stakeholder to retain the deposit as a mutual 
 pledge until the fulfilment of the conditions of sale ; if before that time he gives 
 it up to either party without the consent of both, he is responsible therefor : Pre- 
 vost V. Gratz, i Peters (Circuit Court) 364.] 
 
 205 
 
*I78-I79 THE DEPOSIT. [PART I. 
 
 of solicitors acting for the party [178] having the conduct of 
 the sale, for payment into court, and the member of the firm 
 who received the money misappropriated it, it was held that 
 the loss fell upon the other partners, although they did not 
 know that the money had been paid ; and not upon the auc- 
 tioneer (t). If a stakeholder, during the time that the deposit 
 remains in his hands, chooses to invest it, he does so at his 
 own risk ; but, on the other hand, he is entitled to any profit 
 that may accrue from such investment ; nor is it competent 
 for one of the parties to require him to lay out the money 
 and to account for any interest that may be made thereon, 
 even though that party have offered to indemnify him for 
 any loss that may result from the investment (7'). If both 
 parties direct him to invest the money, any loss that may re- 
 sult, or any profit that may be derived, from such investment, 
 will fall on, or accrue to, the party ultimately entitled to the 
 money (k). On paying over the deposit to the vendor the 
 auctioneer has a right to deduct his commission and the ex- 
 penses of the sale (/). 
 
 Vendor when Entitled. — The vendor is entitled to the de- 
 posit on the completon of the contract (m) ; and if, after con- 
 veyance executed, the title prove defective, the purchaser 
 cannot claim a return of [179] the deposit,^ but must proceed 
 upon the special covenants, if there are any (n). Where the 
 
 (0 Biggs V. Bree, 30 W.R. 132; (/) Lee v. Munn, 8 Taunt. 45; i 
 
 W.N. 1882, 2. It was stated in atH- Moore, 481 ; Curling w. Shuttleworth, 6 
 
 davits made in that case that it was part Bing. 121, 134; 3 Moo. & P. 368; Har- 
 
 of the duty of the solicitor for the party ington v. Hoggart, i B. & Ad, 577; cf. 
 
 having the conduct of a sale under the Edgell zi. Day, L.R. i C.P. 80; H. & R. 
 
 direction of the Court to receive the 8; 35 L.J. C.P. 7. 
 
 deposit from the auctioneer and to pay (.J) See judgments in Harington v. 
 
 it into court for him, and that such so- Hoggart, tiii supra. 
 licitoT was invariably allowed by the (J) Seeposi, p. 228, as to auctioneer's 
 
 taxing-master his costs of making such lien. 
 
 payment into court, whereas the auc- (?«) Harington v. Hoggart, I B. & 
 
 tioneer, if he employed his own solicitor Ad. 577. 
 
 to make such payment, would have to (n) Clare v. Lamb, L.R. 10 C.P. 
 
 pay the costs out of his own pocket. 334; 44 L.J.C.P. 177. 
 
 [' An auctioneer who has sold property under an order of the court and re- 
 ceived the price thereof is not a depositary of the purchaser, and cannot be made 
 liable for the return of the price to the purchaser upon the latter's failure to get 
 the property, unless it is shown that the money is still in the auctioneer's hands 
 unclaimed by any one else : Lara v. Nash, 24 La. Ann. 310.] 
 
 206 
 
CHAP. IX.] THE DEPOSIT. l8o* 
 
 purchaser fails, or refuses, to perform the contract, the deposit 
 is forfeited to the vendor, if it can be impHed from the con- 
 tract that such was the intention of the parties {o) ; even, it 
 appears, when the contract was such as could not, on the 
 ground of some informality, have been enforced by the ven- 
 dor ; provided that the latter was ready and willing to per- 
 form it on his part, and the purchaser contracted with knowl- 
 edge of the informality (/). Nor does it make any difference 
 that the purchaser has given a security, as an I. O. U., for 
 the deposit, instead of paying it in money ; for he can be sued 
 upon the security {q). The best way to express the inten- 
 tion of the parties is to provide in the conditions for the 
 forfeiture of the deposit ; although it has been held, after 
 some hesitation (r), that, even in the absence of such a con- 
 dition, the vendor can retain the deposit, where the sale goes 
 off through the default of the purchaser {s). Upon a pur- 
 chase by a lunatic, the vendor cannot be required to refund 
 the deposit, unless he contracted with notice of the lunacy {t). 
 [180] Where the purchaser dies, before obtaining a convey- 
 ance, intestate and without an heir, it seems probable that 
 the vendor may retain both the estate and the deposit {u). 
 But if the vendor seek to recover damages in respect of loss 
 that he has incurred in reselling the property, he must bring 
 
 (ff) Hinton v. Sparkes, ubi inf. ; (r) See Palmer v. Temple, 9 A. & 
 
 Thomas v. Brown, ubi inf.; Essex v. E. 508; iP. &D. 379; Casson i;. Rob- 
 
 Daniell, L.R. 10 C.P. 538; 32 L.T.N.S. erts, ubi supra. 
 
 476. [But not unless this intention is (J) Kell v. Nolces, 14 W.R. 908 ; 
 
 manifested by the contract or terms of Depree v. Bedborough, 4 Giff. 479; 33 
 
 sale : Bleeker w. Graham, 2 Edwards Ch. LJ. Ch. 134; Ex parte Barrell, L.R. 
 
 (N.Y.) 647.] loCh. 512; 44L.J.B. 138. In the two 
 
 (/) Thomas v. Brown, I Q.B.D. last cases the party seeking to recover 
 
 714; 45 L.J.Q.B. 811; questioning the deposit was the trustee in bank- 
 
 Casson v. Roberts, 31 Beav. 613; 32 ruptcy of the insolvent purchaser. 
 L.J. Ch. 105; 8 Jur. N.S. H99; 11 [f) Beavanz/. McDonnell, 9 Ex.309; 
 
 W.R. 102. 23 L.J. Ex. 94. In Frost v. Beavan, 17 
 
 (y) Hinton v. Sparkes, L.R. 3 C.P. Jur. 369, the vendor was required to re- 
 161; 37 L.J. C.P. 81. [An auctioneer turn the residue of the deposit after de- 
 employed to sell real estate on terms ducting his expends &c.; but Mr. Dart 
 which require the payment of a deposit says (V. & P. 6, u. (z), ) that this was 
 by the buyer at the time of the sale may done by arrangement, the vendor hav- 
 sue for such deposit in his own name : ing sold with notice of the insanity. 
 Kelly V. Thompson, loi Mass. 291.] («) Dart, 193. 
 
 207 
 
*l8l THE DEPOSIT. [PART I. 
 
 the deposit into account (v). Nor is he entitled to retain 
 the deposit, if he has prevented the purchaser from ful- 
 filling the contract, or has caused him to inclir a forfeiture 
 of the deposit by fraudulent statements or deceitful prom- 
 ises (w). 
 
 Purchaser, when Entitled. — If the contract is rescinded on 
 the ground of fraud or misrepresentation on the part of the 
 vendor {x), or if the vendor refuses or is unable to perform 
 it {}'), the purchaser is entitled to a return of the deposit ; 
 but the vendor will be allowed a reasonable time in which to 
 make a good title {c). If the contract is invalid through not 
 having been reduced into writing («) or has been abandoned 
 by mutual consent (b), the purchaser may recover the deposit. 
 A purchaser can successfully resist an action brought upon 
 [181] a bill of exchange, a cheque (c) or an I. O. U. {d) which 
 he has given in payment of the deposit, where the circum- 
 stances are such that he could recover the deposit itself, if 
 it had been paid in money ; and he will, in general, be re- 
 lieved against forfeiture of the deposit, if he is able and 
 willing to give the vendor the full benefit of the contract {e). 
 And, on the failure of an action for specific performance 
 brought by him against the vendor, the Court has now, it 
 would appear, power to order that the deposit be returned to 
 
 {v) Ockenden v. Henly, E.B. & E. C.B. 6i6; 2 C.L.R. 8i8; 23 L.J.C.P. 
 
 485; 27 L.J.Q.B. 361; 4 Jur. N,S.999; 137; 18 Jur. 581. 
 
 Essex 7j. Daniell, L.R. 10 C.P. 538; 32 (a) Dart, 41S; see also Jud. Act, 
 L.T.N. S. 476. [The deposit mil be 1873, s. 25, sub-s, 7. The purchaser 
 applied towards the payment of the loss should give the vendor notice of his in- 
 upon a resale : Willets v. Van Alst, 26 tention to sue for a return of the de- 
 How. Pr. (N.Y.) 325 ; or of the ven- posit, and allow him a reasonable time 
 dor's damages for the loss of his bar- from the date of the notice to complete 
 gain: Curtis v. Aspinwall, 114 Mass. the contract : Add. Con. 412. 
 187.] (rt) Casson u. Roberts, 31 Beav. 
 
 (hO Carpenter !■. Blandford, 8 B. & 613; 32 L.J.Ch. 105 ; 8 Jur. N.S. 1199; 
 
 C. 575; 3 Man. & R. 93; Add. Con. II W.R. 102; cf. Gosbell v. Archer, 2 
 
 413. " A. & E. 500; 4 N. & M. 485 ; I H. & 
 
 (.r) Thornett v. Haines, 15 M. & W. W. 31 ; Walker v. Constable, I B. & P. 
 
 367; 15 L.J. Ex. 230; Aberaman Iron 306; Seton, 1312. 
 Works ■v. Wickens, L.R. 4 Ch. loi; 20 {!>) Add. Con. 412. 
 
 L.T.N.S. 89. (0 Mills V. Oddy, 6 C. & P. 728. 
 
 {y) Boyman v. Gutch, 7 Bing. 379; (_d) Wilson v. Wilson, ubi supra. 
 
 5 M. & P. 222; Wilson t-. Wilson, 14 (e) Dart, 193; Sugd. 55. 
 
 208 
 
CHAP. IX.] THE DEPOSIT. 1 82* 
 
 him, if he is entitled to it, without leaving him to bring an 
 action for it (/). 
 
 Except under special circumstances, the purchaser can 
 recover from the vendor, by way of special damage resulting 
 from the latter' s breach of contract, interest upon the deposit 
 from the day on which the contract was entered into {^). 
 When the deposit has been paid into court and invested, the 
 purchaser is entitled, in the event of the contract being re- 
 scinded through the vendor's default, "to have the Bank 
 Annuities produced by the investment of the deposit, and 
 the dividends that have accrued thereon, not in the shape of 
 interest, but on the ground that it is his own money, and 
 that he is entitled to whatever it has produced. He will be 
 allowed the costs, charges, expenses &c. (/z). If, however, he 
 insists on the return of the money itself, he is entitled to it 
 and [182] to all the dividends which have arisen from its in- 
 vestment " (i). 
 
 Insolvency or Mala Fides of Auctioneer. — If the deposit has 
 been paid to the auctioneer, or solicitor, as agent for the 
 vendor, the latter may be sued for it, although it has not been 
 paid over to him,i payment to the agent being equivalent to 
 payment to the principal (_;'). And even where the deposit 
 
 (/) Jud. Act, 1S75, 0. xix., r. 8 ; (/;) See Seton, 1410. 
 
 Tamplin zi. James, 15 Ch. D. 215, 222 ; (;') Per Bacon, V.-C, in Powell v. 
 
 29 W.R. 311; 43 L.T.N.S. 520. Powell, L.R. 19 Eq. 422, 425; 44 L.J. 
 
 (g) Maberley v. Robins, 5 Taunt. Ch. 311, where the ordinary condition 
 
 625; I Marsh. 258; Farquhar v. Far- providing for the return of the deposit 
 
 ley, 7 Taunt. 592; I Moore, 322, where without interest was held not to apply 
 
 the purchaser had already recovered the under the circumstances. And it seems 
 
 deposit itself from the auctioneer : that such a condition is inapplicable, 
 
 Hodges V. Earl of Litchfield, i Bing. where there has been long delay on the 
 
 N.C. 492; I Sco. 443; i Hodg. 40. part of the vendor : McCulloch e<. Greg- 
 
 [Rogers v. McLean, 31 Barb. (N.Y.) ory, i K. & J. 286; Seton, 13 1 2. Where 
 
 304; s.c, 10 Abbott Pr. (N.Y.) 306. the deposit is considerable, and it is 
 
 If the purchaser has recovered his de- probable that the purchase will not be 
 
 posit from the vendor, but by reason of completed for a long time, it seems ad- 
 
 not proving a demand has been allowed visable for the parties to enter into some 
 
 no interest, he cannot afterwards re- arrangement as to its investment : Sugd. 
 
 cover the interest from the auctioneer, 54. 
 
 even on proof of a proper demand and (y) Duke of Norfolk v. Worthy, i 
 
 refusal: Cockcroft v. MuUer, 71 N.Y. Camp. 337; Bamford v. Shuttleworth, 
 
 367.] II A. & E. 926; Edgell V. Day, L.R. I 
 
 [' Teaffe v. Simmons, 1 1 Alien (Mass.) 342. J 
 209 
 
^i83 
 
 THE DEPOSIT. 
 
 [part I. 
 
 has been paid to the auctioneer, or solicitor, as stakeholder, 
 the vendor is, as a general rule, responsible for any loss that 
 may have been occasioned to the purchaser by the insolvency 
 or mala fides of the stakeholder {k) ; and so it has been held 
 even in the case of a mortgagee vendor who had adopted a 
 contract of sale made by the mortgagor (/). 
 
 Purchaser's Lien for Deposit. — A purchaser who is entitled 
 to the deposit has a lien upon the estate for the amount and 
 interest (;«). 
 
 When Deposit Should be Paid into Court. — Since the auc- 
 tioneer generally acts as stakeholder, he is frequently made 
 a co-defendant in an action for specific [183] performance ; 
 but, as a general rule, this should not be done, where the de- 
 posit is of small amount, unless he refuses to pay it into 
 court, when required ; where, however, it is of large amount, 
 he may properly be made a co-defendant, unless he has paid 
 it into court before action brought (it). If he brings the de- 
 posit into court, he will, it appears, be allowed to deduct his 
 charges and expenses, subject to the question who shall ulti- 
 mately bear them {d). 
 
 C.P. 80; H. & R. 8; 35 L.J.CP. 7. 
 [But if, the bargain having been given 
 up by agreement betvi'een the vendor and 
 the purchaser, the latter demands the 
 deposit from the auctioneer and forbids 
 and thus prevents its payment over to 
 the vendor, he cannot then recover it 
 from the vendor : Robinson v. Trofitter, 
 II Alien (Mass.) 339.] 
 
 (i) Sanderson v. Walker, 13 Ves. 
 601, 602; Fenton v. Browne, 14 Ves. 
 144, 150; Annesley v. Muggridge, i 
 Madd. 593, 596; Smith v. Jackson, i 
 Madd. 618, 620. 
 
 ij) Rowe V. May, 18 Beav. 613. 
 Nothing was decided as between mort- 
 gagor and mortgagee. A fiduciary ven- 
 dor who has not been guilty of negli- 
 gence is not personally responsible to 
 his cestuis que trust for any such loss : 
 Edmonds v. Peake, 7 Beav. 239. 
 
 (wi) Wythes v. Lee, 3 Drew. 396 ; 
 Rose V. Watson, 10 H.L.C. 672; Turner 
 V. Marriott, L.R. 3 Eq. 744; Toirance 
 
 V. Bolton, L.R. 14 Eq. 124; 41 L.J. Ch. 
 643; aff. L.R. 8 Ch. IlS; 42 L.J. Ch. 
 177. [The purchaser who is entitled to 
 a refunding of his partial payments has 
 an equitable lien upon the land there- 
 for : Shirley v. Shirley, 7 Elackf. (Ind.) 
 452; Griffith V. Depew, 3 A. K. Marsh. 
 (Ky.) 177; Brown v. East, 5 T.B. Mon. 
 (Ky.) 405; Payne v. Atterbury, Harr. 
 (Mich.) 414; Clark v. Jacobs, 56 How. 
 Pr. (N.Y.) 519; Freeman v. Mebane, 2 
 Jones Eq. (Nor. Car.) 44; Wickman v. 
 Robinson, 14 Wise. 493.] 
 
 (k) Earl of Egmont v. Smith, 6 Ch. 
 D.469; 46L,J. Ch. 356. The practice is 
 to apply to the auctioneer to pay it into 
 court, and make him a co-defendant, if 
 he refuse: Seton, 1312. 
 
 (0) Sugd. 51; Dart, 179; Annesley 
 V. Muggridge, i Madd. 593; Yates v. 
 Farebrother, 4 Madd. 239. In Blenk- 
 horn V. Penrose, 29 W.R. 236, the 
 auctioneer, who had been made co-de- 
 fendant to an action for rescission of 
 
CHAP. IX. J THE DEPOSIT. I83* 
 
 But an auctioneer against wiiom fraud is alleged cannot, 
 in an action for rescission of the contract, brought against 
 the vendor and himself by the purchaser, claim to be dis- 
 missed from the action on paying the deposit into court (/). 
 
 The auctioneer's right to interplead is dealt with in a sub- 
 sequent chapter {q). 
 
 the contract, but had been dismissed on the deposit after deducting his expenses, 
 paying the deposit into court, obtained (/) Heatley v. Newton, 45 L.T.N.S. 
 
 leave, on the termination of the action 455; 30 W.R. 72. 
 in favour of the vendors, to pay over (^) Chap. XI. 
 
 211 
 
*iS4 e.nfokcinl; tui: contkact. I^part i. 
 
 [184] 
 CHAPTER X. 
 
 ENFORCING THE c. i,iN IK AC I', 
 
 This chapter contains a summary of the ditforont ways 
 of onforciiiL;- a sale b\- auction. 
 
 The Contract when Complete. — On a sale of ;;ooils at a 
 less price than ,£'io, an unretracted bidding' and an accep- 
 tance of the same are sufficient to render the sale complete ; 
 but on a s.de of lands at anv price, or of goods .it or abo\e 
 the price of ,tl^io. something further is required: there must 
 be a written memorandum of the contract, or else, in the case 
 of goods, cither a ileliverv and acceptance ot the thing sold, 
 or a part pa\nient of the price.' 
 
 ■When the Property iii land Passes. — The Icg.d estate in land 
 does not pass until the execution of the coiuewinee {it) ; but 
 as soon as there is "a valid contract for s.de, the vendor 
 becomes in oquit\- a trustee, for the purchaser, of the est.ite 
 sold, and the beneficial ownership jxisses to the purchaser. 
 If anything" happens to the estate between the time of sale 
 and the time of completion of the purchase, it is at the risk 
 of the purchaser.- If it is a house that is sold, and the house is 
 burnt down, the purch.iser loses the house.' He must insure 
 
 (.;) VoT the rule, "lu-ro tlic s.\le is [I'aUiii ;■. llcrlx-rt, 4 (,\>ld\\ ^^l\■lm.) 
 by crdor of Ihc I'.uirt, see /,'.(,'. p. 24S. I id. J 
 
 [• St-e ,;<;.',,.'. ch. VIII., p. 143.] 
 
 [MlcKechnie r. Sterling, 4S F.arli. ^X.V.') 3;,o ; Hill .•. Cumlievlaiul Willey 
 Co.. SO Penn. St. 474; Reed ■■. I.ukcns, 44 reuii. St. ax^; Rotili -'. M.inii. 11 
 Pcnn. St. 300. Tliis is tlic rule of equil>'; a dilTorcut doctrine li.is tieen applied at 
 law, upon avoidance of the contract: Thompson ;'. t'.ould, jo Pick. (^Mass") \ 54; 
 Blew 7'. McClelland, jd Mo. 304.] 
 
 [^ Wince 7'. k'o'.lcr, Push. (Kv.") v^'>- Put the purchaser under a foreclosure 
 sale \\ho is not to heconie the o\\*ncr or h.ue possession until the pavnu'nt ol the 
 purchase-money and the delivery of the deed will not he compelled to bear the 
 loss arisiuLt from a fire after the sale, but before the consummation o( the pur- 
 chase. Put if the injury is slight and compensation is made for the loss, he will 
 be compelled to carry out the contract: Aspinall ;■. Paleh, 4 AM>oU Nc« Cases 
 (N.V.) lO.r. s.c, 7 Ualy (N.V.) 200; Mutu;\l l.ifc Ins. (.'o. t'. Ualch. 4 Alihott 
 New Cases I^N.Y.) 200.] 
 
 21 2 
 
CHAV. X.J 
 
 ENFORCING THE CONTRACT, 
 
 i8s^ 
 
 it himself, if he [185] wants to provide against such an acci- 
 dent {/'). . . In tlie same way, theie is a correlative liability 
 on the [)art of the vendor in possession, lie is not entitled 
 to tre;it the estate as his own. If he wilfully damages or 
 injures it, he is liable to the purchaser; and, more than that, 
 he is liable, if he docs not take reasonable care of it" (c). 
 
 The Vendor's Lien upon Land. — But, in the absence of express 
 stipulation to the contrary, the vendor has a right to retain 
 possession of the estate, or to receive the rents and profits, 
 until the purchase-money is paid (d). And even notwithstand- 
 ing the execution of a conveyance acknowledging payment of 
 the purcliase-money and bearing an endorsed receipt for the 
 amount, and notwithstanding delivery of possession to the 
 purchaser, an unpaid vendor has an equitable lien upon the 
 land for so nuich of the purchase-money as remains unpaid (c). 
 
 (/j) Anil, in Iho ahsonco of express 
 stipulation, lie caniuit cliiini the lienodl 
 of any insntanec (hat iiKiy )i:\ve Itceii 
 cffecteil by llie \eiuloi- : Poclo t. Adams, 
 _;_i L.J. C:h. (.,i<); 12 W.l-;. oSj; Kaynci- 
 7'. I'leslKii, i8 Cli. I). I; [:iHirniin{,' s.i'., 
 14 C'h. Div. 21)7;] 50 L.J. Cli. 472. 
 
 (f) /',7- Jossel, M. K., in Lysa^^ht 7/. 
 ICilwaids, 2 C'li. 1"). .[1)1), 507; .|5 L.J. 
 Ch. 51^4, 5=^.^; cf. Morg.^n 7/. S\\'ansea 
 Urhaii Sanilaiy Authority, i) C"li. D. 5S2. 
 [Tlie vemlur and llic puveliaser iiave 
 respecli\'ely no etiuitable claim upon 
 insurnncc ]^r()cured by the ulliei' upon 
 his o\vi\ interest: llamuicr z'. Johnson, 
 44 Ills. 192; King 7', Preston, 11 La. 
 Ann. «)5; Wood 7'. Northwestern Ins. 
 Co., .(O N.^'. .(21, unless it he by agree- 
 ment between them : lienjamin 7'. Sara- 
 toga Ins. to., 17 N.V. 415, such as a 
 stipulation that any money recovered on 
 the policy shall be applied towanls re- 
 l^iring the injury : Canlen 7'. Ingrain, 2 ; 
 I .. j. C'h. 47S, So if a lessee of buildings 
 has by the terms of liis lease the option 
 to purchase them, and they arc insurctl 
 for the benelit of the lessor, the lessee 
 e.mnot, at'ter the buildings ha\e been 
 burned, and the lessor has received the 
 amount of the insur.mce nionc)', require, 
 by then exercising his option to pur- 
 
 chase, thai this insurance money be 
 applied towards the satisfaction of the 
 }iurcliase-nioncy aud the arrears of rent : 
 C.ilbeit 2: Port, 2S Ohio St. 276; for 
 landKjrd and tenant come within the 
 same rule as vendor and purchaser: 
 Merchants' Ins. Co. 7', M.izange, 22 
 Ala. KkS; Ely 7'. Ely, .So Ills. 5.;2; 
 I'oiigiie 7'. Nutwell, 31 Md. 302; Mil- 
 tenlierger 7'. lieereom, 9 Penn. St. igS. 
 But see Kecd ,-. Luki-ns, 44 Penn. St. 
 20CI; Ins. Co. 7'. llpdegralf, 21 Penn. 
 
 St. 5'3-] 
 
 ((/) T.ysat^lU 7'. lulwards, ///'/ supra. 
 
 ((•) Daii, 729, 730. [The I'jinlish 
 iliH-lriiic tlmt a M'lidor has a lien upon 
 the land sold for unpaid purchasc- 
 moiu-y, cvLMi thougli he has tcil^cn no 
 ai^rt-cmcnl Ihcrcfor, is adop[cd in Aia- 
 hama, .Vrkansas, Call Tor nia, Colorado, 
 the Dislric-I of (.'olumbia, Fhn-ithi, Illi- 
 nois, Indiana, Iowa, Krntucky, Mary- 
 land, Michigan, Minnosi>la, Mississippi, 
 Missiuirl, New JcrNcy, New York, (")]ui>, 
 llregi.>n, Rhotlc Island, Tennessee, Tex- 
 as, and Wisconsin. Il is rejeelcd or 
 nol adopted in Connecticut, deorgia, 
 Kansas, Maine, Massachusetts, Nebras- 
 ka, New Hampshire, North Carolina, 
 Pennsvlvania, South t 'ari-iina, VeruiDnt, 
 \'ir;^'inia, and West \'iij^inia. I Jones 
 
*l86 ENFORCING THE CONTRACT. [pART I. 
 
 The vendor will, however, lose this lien, if he takes an inde- 
 pendent security for payment, such as a charge upon stock, 
 or a mortgage of another estate {/) ; but not, if he takes a 
 document which, only evidences, or facilitates enforcement 
 of, his claim against the purchaser, 'such as a promissory 
 note, bill of exchange, or bond {g). 
 
 When the Property in Goods Passes. — " Where a bargain 
 and sale is completed with respect to goods, and everything 
 to be done on the part of the vendor [186] before the prop- 
 erty should pass has been performed, then the property 
 vests in the purchaser ; . . and any accident happening to 
 the things subsequently, unless it is caused by the default 
 of the vendor, any calamity befalling them after the sale is 
 completed, must be borne by the purchaser ; and, by parity 
 of reasoning, any benefit to them is his benefit, and not that 
 of the vendor '' (i^). Where goods sold by auction, there 
 being a condition of sale that " each and all lots shall be taken 
 to be delivered at the fall of the hammer, after which time 
 they shall remain and be at the exclusive risk of the pur- 
 chaser," were left by the purchaser on the premises of the 
 vendor, whose landlord subsequently threatened to distrain 
 the goods for rent, whereupon the auctioneer paid off the 
 distress, it was held that the auctioneer could not charge his 
 principal with the amount, as the loss, if the goods had been 
 distrained, would Have fallen on the purchaser, to whom the 
 right of property had passed by the sale {i). 
 
 But if something remains to be done by the vendor, for the 
 purpose of putting the goods into a deliverable state, or for 
 the purpose of ascertaining the price, as, where goods are sold 
 
 on Mortgages, § 191, where the author- L.J.Q.B. 58; 25 L.T.N.S. 796; 20 W.R. 
 
 ities are fully cited, and the nature and 185; cf. Greaves v. Hepke, 2 B. S; Aid. 
 
 characteristics of this Hen exhaustively 131; Bloxam %'. Saunders, 4 B. & C. 
 
 discussed.] 941, 948; Tarling v. Baxter, 6 B. & C. 
 
 (/) Dart, 733; Earl of Jersey v. 360, 364; McBain v. Wallace, 6 App. 
 
 Briton Ferry Floating Dock Co., L.R. Cas. 588, 608. A purchaser at an auc- 
 
 7 Eq. 409; In I'e Brentwood Brick & tion can before payment make a com- 
 
 Coal Co., 4 Ch. D. 562; 46 L.J. Ch. plete bargain and sale of the article 
 
 554. which he has bought to a third party so 
 
 {g) Dart, 734. as to maintain an action for the price : 
 
 (Ji) Per Blackburn, J., in Sweeting Scott v. England, 2 D. & L. 520. 
 
 ■u. Turner, L.R. 7 Q.B. 310, 313; 41 {i) Sweeting z'. Turner, zi/'i ja/rrz. 
 
 2T4 
 
CHAP. X.] ENFORCING THE CONTRACT. 1 87* 
 
 be weight or measure, until that is done, until, for instance, 
 the goods are weighed or measured, the property does not 
 pass (J). And where there is a bargain for a certain quantity 
 of goods out of a greater quantity, with a power of selection 
 in [187] the vendor to deliver what he thinks fit, the property 
 does not pass, until that power is exercised {k). The case of 
 Rugg V. Minett (/) affords a good illustration of the princi- 
 ples which obtain. There turpentine in casks was sold by 
 auction in 27 lots. The casks were to be taken at a certain 
 marked quantity, except the two last, out of which the seller 
 was to fill up the rest before delivering them to the pur- 
 chasers, and on this account the two last were to be taken 
 at uncertain quantities. Fifteen of the casks had been filled 
 up, when the whole number were destroyed by fire. It was 
 held that, as regarded the fifteen casks, the loss fell upon 
 the purchasers, as nothing further remained to be done to 
 them by the seller, but, as regarded the remainder, the loss 
 fell upon the seller. 
 
 Non-clearance of Goods. — When the right of property has 
 passed to the buyer, he does not lose his title to the goods 
 by merely not removing them within the time specified in the 
 conditions of sale {m). 
 
 Vendor's Lien upon Goods. — Although, by the contract of 
 sale, the purchaser may have the right of property in the 
 goods, yet the vendor has, generally speaking, a right to 
 retain them, until the purchase-money is paid («). But his 
 
 (y) Simmons v. Swift, 5 B. & C. man Bank, 3 Ex. D. 164, 172; 47 L.J. 
 
 857; 8 Dow. & R. 693; Gillett v. Hill, Q.B. 418. [Shaw, C.J., in Arnold v. 
 
 2 C. & M. 530, 535; Jenner v. Smith, Delano, 4 Cush. (Mass.) 33, 40.] The 
 
 L.R. 4 C.P. 270; cf. Turley v. Bates, 2 general rule may, however, be modified 
 
 H. & C. 200; 33 L.J, Ex. 43. [Barrett by special agreement. 
 V. Goddard, 3 Mason, C.C. 107; Gibbs (/) 11 East, 210. 
 
 V. Benjamin, 45 Vt. 124; Lingham v. (m) Saint z/. Pilley, L.R. 10 Ex. 137; 
 
 Eggleston, 27 Mich. 324. Where, by Woolfe v. Home, 2 Q.B.D. 355; 46 
 
 the terms announced at a public sale, L.J.Q.B. 534. See post, p. 199, as to 
 
 the purchaser has a certain time to re- resale. 
 
 move the goods purchased, they remain (») Bloxam v. Saunders, 4 B. & C. 
 
 in the meantime at the risk of the seller : 941, 948; Tarling w. Baxter, 6 B. & C. 
 
 Gleason v. Sykes, 18 La. Ann. 627.] 360, 364 [or the conditions of the sale 
 
 (^) Gillett V. Hill, u6i supra ; Alex- complied with : Wainscott v. Smith, 68 
 
 ander v. Gardner, I Bing. N.C. 671; i Ind. 312. Where by the terms of a 
 
 Hodg. 147; Mirabita v. Imperial Otto- public sale the purchaser was to have 
 
 215 
 
ENFORCING THE CONTRACT. 
 
 [part I. 
 
 lien is destroyed, if he parts with the possession of them (<?). 
 " If goods are sold upon credit, and nothing is agreed upon 
 as to the time of delivering the goods, the vendee is imme- 
 diately entitled to the possession, and the right of possession 
 and the right of property vest at [188] once in him ; but his 
 right of possession is not absolute, it is liable to be defeated, 
 if he become insolvent, before he obtains possession " (/). 
 Even if the vendor has started the goods and delivered them 
 to a carrier, he has, upon the purchaser's insolvency, a right 
 to stop them on the way, provided they have not been actually 
 delivered {q) ; and it is immaterial that the purchaser has 
 given a bill for them which has not yet become due ; for a 
 vendor is not compelled to deliver to an insolvent purchaser (r). 
 
 nine months' credit on giving approved 
 security, and a purchaser neither gave 
 security nor took possession of the prop- 
 erty, it was held that, after the expira- 
 tion of the term of credit, the seller 
 could recover the price without deliver- 
 ing or offering to deliver the property; 
 for he was not bound to give up his lien 
 unless the terms of sale were complied 
 with: Wade v. Moffitt, 21 Ills. no]. 
 
 (0) Taylor -u. Robinson, 8 Taunt. 
 648. [Mackaness v. Long, 85 Penn. 
 St. 158; Cochran v. Roundtree, 3 
 Strobh. (So. Car.) 217. But ». merely 
 conditional delivery will not destroy the 
 vendor's lien. Under a custom on sales 
 made at auction for approved notes, to 
 deliver the goods when called for, and 
 afterwards to send for the notes, it was 
 held that where, after such a sale and 
 delivery, but before the notes had been 
 sent for, the purchaser stopped payment 
 and assigned his property for the benefit 
 of his creditors, this delivery of the 
 goods was merely conditional, and that 
 the vendor could retain the proceeds of 
 the goods : Haggerty v. Palmer, 6 Johns. 
 Ch. (NY.) 437, which is scarcely consist- 
 ent with Mills V. Hallock, 2 Edwards Ch. 
 (N.Y.) 652. But where an auctioneer 
 agreed with a bidder to allow him to settle 
 for purchases at the auction sales by giv- 
 ing notes of the bidder's customers in- 
 dorsed by himself at such reasonable time 
 
 as should suit his convenience, a delivery 
 of the goods under this agreement was 
 held to be absolute, notwithstanding the 
 same usage of trade : Furniss v. Hone, 
 8 Wend. (N.V.) 247.] 
 
 (/) Fer Bayley, J., in Bloxam v. 
 Saunders, 4 B. & C. 941, 948. As to 
 bankruptcy of purchaser, see posi, p. 
 201. [Keeler v. Goodwin, in Mass. 
 490, 492; Naylor v. Dennie, 8 Pick. 
 (Mass.) 198.] 
 
 {q) [White V. Mitchell, 38 Mich. 
 390; Reynolds v. Boston & Maine R.R. 
 Co.,43 N.H. 591.] The better opinion 
 seems to be that stoppage in transitu 
 does not rescind the contract, and that 
 goods so detained will remain at the 
 risk of the vendee, and cannot be sold 
 by the vendor, until the period of credit 
 has expired : notes to Lickbarrow v. 
 Mason, i Sm. L.C. 756 ; [Rogers v. 
 Thomas, 20 Conn. 53; Rucker v. Dono- 
 van, 13 Kansas, 251; Newhall i/. Var- 
 gas, 15 Maine, 315 ; s.c, 13 id. 93, 104; 
 Stanton v. Eagle, i5 Pick. (^lass.) 467, 
 475; Atkins V. Colby, 20 N.H. 154, 
 155; Hunn V. Bowne, 2 Caines (N.Y.) 
 38; Cross V. O'Donnell, 44 N.Y. 661 ; 
 Jordan v. James, 5 Hammond (Ohio) 
 89; Chandler v. Fulton, 10 Texas, 2]. 
 
 {r) Gunn v. Bolckow, Vaughan & 
 
 Co., L.R. 10 Ch. 491, 501 ; 44 L.J. Ch. 
 
 732; Ex parte Willoughby, 16 Ch. D. 
 
 604; [Newhall v, Vargas, 13 Maine, 93; 
 
 16 
 
CHAP. X.] 
 
 ENFORCING THE CONTRACT. 
 
 189* 
 
 Goods " are in transitu, so long as they are in the hands of 
 the carrier as such, whether he was or was not appointed by 
 the consignee, and also so long as they remain in any place 
 of deposit connected with their transmission " {s). Where a 
 portion only of goods, capable of being estimated separately 
 as to its value, has been delivered, the vendor has a right of 
 stoppage in transitu as to the remainder, unless there is evi- 
 dence to show that delivery of the part was intended to 
 operate as a delivery of the whole (/). But a mere suspicion 
 of the insolvency of the buyer is not [189] sufficient to justify 
 a vendor in stopping goods in transitu, (li). 
 
 Death, &o., of Parties. • — • A complete contract will not, as a 
 general rule (v), be avoided by the subsequent death, bank- 
 ruptcy, insolvency or lunacy of both or either of the par- 
 ties (w). Their rights and liabilities under the contract 
 devolve, in case of death ix), on the personal representatives 
 of the deceased (_y) ; in case of bankruptcy, on the trustee in 
 
 Arnold v. Delano, 4 Cush. (Mass.) 33; 
 .Stubbs V. Lund, 7 Mass. 453; Hays v. 
 Mouille, 14 Penn. St. 48]. 
 
 {/) Notes to Lickbarrow v. Mason, 
 I Sm. L.C. 756, 818. Approved by 
 Brett, L.J., in Ex parte Rosevear China 
 Clay Co., II Ch. D. 560, 570; 48 L.J.B. 
 100; Ex parte Coo-^a, 11 Ch. D. 68, 78; 
 48 L.J.B. 49. When the purchaser of 
 goods has resold them, though the ven- 
 dor loses by the resale the right to stop 
 the goods themselves in transitu^ he is 
 entitled,if he gives [to the purchaser from 
 the original vendee] that which would, 
 had there been no resale, be a valid notice 
 of stoppage in transitu, to intercept, to 
 the extent of his own unpaid purchase- 
 money, so much of the sub-purchaser's 
 purchase-money as remains unpaid by 
 him: Ex parte Falk, 14 Ch. D. 446. 
 
 (J) Ex parte Cooper, 11 Ch, D. 68, 
 76 ; 48 L.J.B. 49 ; cf. Wentworth v. 
 Outhwaite, 10 M. & W. 436. [See Bar- 
 rett V. Goddard, 3 Mason, C.C, 107; 
 Buckley v. Furniss, 17 V^end. (N.Y.) 
 504. So too, if one person has bought 
 different lots of goods at an auction-sale, 
 and one of the lots, being warranted, 
 
 21 
 
 turns out to be different from the war- 
 ranty, in consequence whereof the pur- 
 chaser refuses to take it, and the parties 
 agree to settle for the other articles 
 without prejudice, this acceptance of the 
 other goods will not preclude the buyer 
 from contesting his liability upon the 
 warranted lot : Barclay v. Tracy, 5 
 Watts & S. (Penn.) 45.] 
 
 (;i) In re Phoenix Bessemer Steel 
 Co., 4 Ch. D. 108; 46 L.J. Ch. 115. 
 
 (-') Unless there be an express stip- 
 ulation to that effect, or the contract be 
 one for personal services : Add. Con. 291 . 
 
 (lii) Dart, 253. [Muldrovv v. Mul- 
 drow, 2 Dana (Ky.) 386; Rutherford 
 V. Green, •' Ired. Eq. (Nor. Car.) 121 ; 
 Livingston v. Newkirk, 3 Johns. Ch. 
 (N.Y.) 312, 316.] 
 
 {x) When an action is brought for 
 specific performance of a contract relat- 
 ing to real estate, both the real and the 
 personal representatives of the deceased 
 should, in general, be made parties to 
 the action : see Fry, pp. 82 et seq. 
 
 (j) Dart, 957; Add. Con. 330. 
 [Craig V. Leslie, 3 Wheaton, 563, 579; 
 Root V. Blake, 14 Pick. (Mass.) 271.] 
 
 7 
 
'IQO 
 
 ENFORCING THE CONTRACT. 
 
 [part I. 
 
 the bankruptcy (z) ; and in case of lunacy, upon the commit- 
 tee of the lunatic {a). 
 
 Fraud. — And, although the contract may be rescinded on 
 the [190] ground of fraud or misrepresentation {b), it is not 
 rendered absolutely void by either ; it is merely voidable at 
 the option of the party defrauded (c) ; who may either rescind 
 the contract and recover any moneys that he has paid under 
 it {d), together with damages by way of compensation {e), or 
 affirm the contract and insist upon the representation being 
 
 {z) 32 & 33 Vict. c. 71 (Bankruptcy 
 Act, 1869), ss. 22, 25. By ». 23 the 
 trustee may disclaim, inter alia, any 
 unprofitable contracts entered into by 
 the bankrupt, "and upon the execution 
 of such disclaimer the property dis- 
 claimed shall, if the same is a contract, 
 be deemed to be determined from the 
 date of the order of adjudication;" but, 
 by s. 24, he is not entitled to disclaim, 
 when an application in writing has been 
 made to him by any person interested 
 in the property, requiring him to decide 
 whether he will disclaim or not, and he 
 has for a period of not less than twenty- 
 eight days after the receipt of such ap- 
 plication, or such further time as may 
 be allowed by the court, declined or 
 neglected to give notice whether he 
 disclaims or not; and any person in- 
 jured by the exercise of the right of 
 disclaimer is to be deemed a creditor of 
 the bankrupt to the extent of such in- 
 jury, and the debt is made proveable 
 under the bankruptcy: ». 23. If the 
 trustee does not disclaim, he can still 
 subsequently refuse to perform the con- 
 tract, and the other party is only entitled 
 to prove for damages for the breach 
 against the bankrupt's estate; he can- 
 not treat the trustee as having adopted 
 the contract : In re Sneezum, 3 Ch. D. 
 463; 45 L.J.B. 137. 
 
 {a) 16 & 17 Vict. c. 70,5. 122; Jud. 
 Act, 1875, O. xviii.; Dart, 1003. 
 
 (V) See ante, pp. 50-60. 
 
 (it) Oakes ;'. Turquand, L.R. 2 ILL. 
 325, 346; 36 L.J. Ch. 949; Dawes v. 
 Harness, L.R. loC.P. 166; 44 L.J.C.P. 
 
 194. [Doggett V. Emerson, 3 Story, 
 C.C. 700; Smith V. Babcock, 2 Wood- 
 bury & Minot, C.C. 246; Tuthill v. Bab- 
 cock, 2 id. 299. And see The Sparkle, 
 7 Benedict, C.C. 528; Hough v. Rich- 
 ardson, 3 Story, C.C. 659, 691 ; Daniel v. 
 Mitchell, I id. 172; Mason v. Crosby, 
 I Wood. & M.C.C. 342, 353; MilUken 
 V. Thorndike, 103 Mass. 382; Fisher v. 
 Mellen, 103 Mass. 503; Turner u. 
 Adams, 46k Mo. 95. Representations 
 made by the purchaser of land con- 
 cerning the value of what he gave 
 therefor, which were false in material 
 points, and which influenced the vendor 
 to sell, will vitiate the sale, whether or 
 not the purchaser knew them to be false : 
 Warner v. Daniels, I Wood. & M.C.C. 
 90 ; Shackleford v. Hadley, i A. K. 
 Marsh. (Ky.) 496. So too as misrep- 
 resentations by either party as to the 
 quantity and quality of the land pur- 
 chased: Boyce v. Granby, 3 Peters, 
 210; Tyler I/. Black, 13 Howard, 231; 
 Prescott -'. Wright, 4 Gray (Mass.) 461. 
 A false representation by an adminis- 
 trator at an auction sale of the dece- 
 dent's land without an order of court, 
 that the sale was authorized by the 
 decedent's will, will entitle a purchaser 
 who was thereby induced to make the 
 purchase to a rescission of the contract : 
 Stark V. Henderson, 30 ^Vla. 438.] 
 
 (r/) Torrance v. Bolton, L.R. S Ch. 
 iiS; 42 L.J. Ch. 177; Attorney-General 
 V. Ray, L.R. 9 Ch. 397; 43 L.J. Ch. 
 47S. 
 
 (^) Dart, 105; Kinnaird v. Smith, 
 W.N. 1S81, 82. 
 18 
 
CHAP. X.] ENFORCING THE CONTRACT. I9I* 
 
 made good, if that be possible (/). If goods have been de- 
 livered under a contract which the purchaser has a right, and 
 has elected, to rescind (£■), and the vendor does not take them 
 back, after the purchaser has, within a reasonable time, given 
 him notice that he will not accept them, and that they are at 
 the vendor's risk, the loss will fall upon the vendor, if any 
 accident happen to the goods without neglect on the part of 
 the purchaser (k). 
 
 Innocent Misrepresentation. — " There is, however, a very 
 important difference between cases where a contract may be 
 rescinded on account of fraud, and those in which it may be 
 rescinded on the ground that there is a difference in sub- 
 stance between the thing bargained for and that obtained. 
 It is enough to show that there was a fraudulent representa- 
 tion as to any part of that which induced the party to enter 
 into the contract which he seeks to rescind ; but where there 
 has been a mere innocent misrepresentation or misapprehen- 
 sion, it does not authorize a rescission, unless it is such as to 
 show that there [191] is a complete difference in substance 
 between what was supposed to be, and what was, taken, so as 
 to constitute a failure of consideration. For example, where 
 a horse is bought under a belief that it is sound, if the pur- 
 chaser was induced to buy by a fraudulent representation as 
 to the horse's soundness, the contract may be rescinded. If 
 it was induced by an honest misrepresentation (i) as to its 
 soundness, though it may be clear that both vendor and pur- 
 chaser thought that they were dealing about a sound horse 
 and were in error, yet the purchaser must pay the whole 
 price, unless there was a warranty ; and, even if there was a 
 warranty, he cannot return the horse and claim back the 
 whole price, unless there was a condition to that effect in the 
 contract " (J). 
 
 (/) Pulsford V. Richards, 17 Beav. Grimoldby v. Wells, L.R. 10 C.P. 391; 
 
 87, 95; Rawlins v. Wickham, 3 De G. 44 L.J.C.P. 203. 
 
 & J. 304; or bring an action to recover (j) Cf. an/e, pp. 56, 117. 
 
 damages for the loss which he has sus- (/') /"^r Blackburn, J., delivering the 
 
 tained : see Poulton v. Lattimore, 9 B. judgment of the court, in Lord Ken- 
 
 & C. 259. nedy v. Panama &c. Mail Co., L.R. 2 
 
 (g) See post, p. 192, note («). Q.B. 580, 587; 8 B. & S. 571; 15 W.R. 
 
 {/i) Okell V. Smith, I Stark. 107; 1039; to which he expressed his adher- 
 
 219 
 
192 
 
 ENFORCING THE CONTRACT. 
 
 [part I. 
 
 ■When Fraud not Ground for Rescission. — And, to entitle 
 one of the parties to avoid the contract on the ground of 
 fraud, the fraud must have been committed by, or with the 
 assent of, the other party [k),^ or his authorized agent (/), and 
 he must himself have been innocent of fraud in the transac- 
 tion {m) ; and he must not, after becoming fully aware of the 
 fraud, have elected to affirm [192] the contract, or have lain 
 by («). Nor will the contract be rescinded, if the other party 
 
 ence in Mackay v. Dick, 6 App. Cas. 
 251, 265; 29 W.R. 541. As to pur- 
 cliaser's remedy for l:)reach of warranty, 
 see post, p. 204. 
 
 (/;) Smith's Case, L.R. 2 Ch. 604, 
 606. [A contract will be vitiated as 
 against the purchaser for false repre- 
 sentations made to the vendor by 
 another person in the presence of the 
 purchaser, by means of which the pur- 
 chaser gained an advantage ; Warner v. 
 Daniels, i Woodbuiy & Minot, C.C, 90 ; 
 Mason v. Crosby, id. 342; McMeekin v. 
 Edmonds, I Hill Ch. (So. Car.) 288, 
 
 293-] 
 
 (/) See ante, 34. [A principal is 
 chargeable with the false representa- 
 tions made by his agent in a sale, when 
 the principal is acting within the line of 
 the business intrusted to him : Morton 
 V. Scull, 23 Ark. 289; Lund v. Equita- 
 ble Life Assurance Society, 31 N.J. Eq. 
 355; Ferguson v. Hamilton, 35 Barb. 
 (N.Y.) 427; Union Bank v. Campbell, 
 4 Humph. (Tenn.) 394.] 
 
 {m) Scholefield v. Templer, 4 De G. 
 & J. 429, 433 ; Vane v. Vane, L.R. 8 
 Ch. 383; 42 L.J. Ch. 299. [The pur- 
 chaser cannot set up as a ground of 
 rescission a fraud in which he has par- 
 ticipated with the seller: McAnulty v. 
 Hodges, 33 Miss. 579.] A party can- 
 not avoid a contract by his own wrong. 
 Thus, where a purchaser refused to pay 
 the auction-duty pursuant to the condi- 
 tions of sale, it was held, notwithstand- 
 ing the statute 17 Geo. IIL, c. 50, s. 8 
 (now repealed), which enacted that 
 
 upon such refusal the bidding should be 
 null and void, that the purchaser could 
 not on that ground rescind the contract, 
 but that the contract was only voidable 
 at the option of the vendor : Malins v. 
 Freeman, 4 Bing. N.C. 395. [His own 
 mere mistake, made without fault of the 
 other party, will not entitle him to re- 
 scind the contract : Upham v. Hamill, 
 II R.I, 565; Alexander v. Herring, 54 
 Ga. 200 ; though an utterly unconscion- 
 able bargain might be relieved against : 
 Cumming's Appeal, 23 Penn. St. 509,] 
 
 («) Vigers v. Pike, 8 CI. & Fin. 
 562. He must rescind within a reason- 
 able time after discovering the fraud : 
 Campbell v. Fleming, i A. & E. 40; 
 Sharpley v. Louth & East Coast Ry. Co., 
 2 Ch. D. 663. [Sadler v. Robinson, 2 
 Stewart (Ala.) 520; Bland v. Bowie, 
 53 Ala. 152; Ayres v. Mitchell, 3 Sm. 
 & M. (Miss.) 683; Crosier v. Acer, 7 
 Paige (N.Y.) 137; McNaughton v. 
 Partridge, II Ohio, 223; KnuckoUs z*. 
 Lea, 10 Humph. (Tenn.) 577. The 
 right to rescind must be promptly exer- 
 cised ; it is waived by negotiation or 
 entering into new stipulations, after 
 knowledge of the circumstances: 
 Thweatt v. McLeod, 56 Ala. 375 ; Dill 
 V. Camp. 22 Ala. 249; McCuUoch v. 
 Scott, 13 B. Mon. (Ky.) 172; Taymon 
 V. Mitchell, i Md. Ch. Dec. 496; Clem- 
 ents V. Smith, 9 Gill (Md.) 156; Jones 
 V. Emery, 40 N.H. 348; Masson v. 
 Bovet, I Denio (N.Y.) 69; McNeven 
 V. Livingston, 17 Johns. (N.Y.) 437; 
 Lawrence v. Dale, 3 Johns. Ch. (N.Y.) 
 
 [' False and fraudulent representations made by a stranger to the sale cannot 
 be set up as a ground to rescind it : Matlock v. Bigbee, 34 Mo. 354.] 
 
 220 
 
CHAP. X.] 
 
 ENFORCING THE CONTRACT. 
 
 192' 
 
 cannot be restored to his former position {o), or if the rights 
 of innocent third parties have intervened (/>). 
 
 Effect of Fraud Upon the Property in Goods. - — On a sale of 
 goods procured by fraud, the property in the goods is trans- 
 ferred by the contract, subject, as between the seller and the 
 buyer, to its being revested in the seller, when he is the 
 party defrauded, upon his exercising his option to rescind ; 
 but a purchaser in good faith from a fraudulent buyer ac- 
 quires an indefeasible title {q). 
 
 The Contract, how Proved. — When the contract is not in 
 writing, nor required by law to be in writing, the terms are, 
 of course, collected from parol evidence ; but when it has 
 been reduced into writing, the writing constitutes the con- 
 tract. If there be a discrepancy between the words and the 
 writing, the latter will, as a matter of law, prevail (r). The 
 
 23; Negley v. Lindsay, 67 Penn. St. 217, 
 227, 228; Pearsoll v, Chapin, 44 Penn. 
 St. 9; Vail V. Nelson, 4 Rand. (Va.) 
 478; Mayo V. Purcell, 3 Munf. (Va.) 
 243. And a purchaser who wishes to 
 rescind the sale must surrender any 
 possession that he has taken: Fitzpat- 
 rick ij. Featherstone, 3 Ala. 40; Sea- 
 born j/. Sutherland, 17 Ark. 603; Gehr 
 V. Hogerman, 26 Ills. 438; Deal u. 
 Dodge, id. 458; Matta v. Henderson, 
 14 La. Ann. 473 ; Shipp v. Wheeless, 
 ^"^ Miss. 646; Williamson v. Raney, 
 
 1 Freem. Ch. (Miss.) 112; "Whitworth 
 V. Carter, 43 Miss. 6l; Jagers i/. Griffin, 
 id. 134; McMillan v. Causey, id. 227; 
 Martin v. Tarver, id. 517; Miller v. 
 Palmer, 55 Miss. 323; Tompkins v. 
 Hyatt, 28 N.Y. 347; Lewis v. McMil- 
 len, 41 Barb. (N.Y.) 420; Schroeppel 
 V. Hopper, 40 id. 425 ; Goelth v. White, 
 35 Barb. (N.Y.) 76.] 
 
 (0) Sheffield Nickel Co. v. Unwin, 
 
 2 Q.B.D. 214, 223; 46 L.J.Q.B. 299. 
 [The contract cannot be rescinded un- 
 less by mutual consent, if it has been so 
 far executed that the parties cannot be 
 put in statu quo : Bellows v. Cheek, 20 
 Ark. 424; McKeen v. Beaupland, 35 
 Penn. St. 488. And on rescinding the 
 contract the court will put the parties 
 
 back into their original position : State 
 Bank 7J. Green, 10 Nebraska, 130; Trot- 
 ter V. White, 26 Miss. 88.] 
 
 (/) White V. Garden, 10 C.B. 919. 
 [But a party to a sale may sue for a 
 rescission in his own name, although 
 the heirs of his wife have an interest in 
 the property sold; and a judgment in 
 his favor will not conclude any right 
 those heirs may have against him : Gib- 
 son V. Fifer, 21 Texas, 260,] 
 
 (if) Babcock v. Lawson, 5 Q.B.D. 
 284; 49 L.J.Q.B. 408; [Herndon v. 
 Kimball, 7 Ga. 432]. Even where 
 goods have been obtained by false pre- 
 tences : Moyce v. Newington, 4 Q.B.D. 
 32; 48 L.J.Q.B. 125; provided that 
 there has really been a contract ; Cundy 
 V. Lindsay, 3 App. Cas. 459; 47 L.J.Q.B. 
 481. 
 
 (r) Knight V. Barber, 16 M. & W. 
 66, 69; 16 L.J. Ex. 18. [Wynn v. 
 Cox, 5 Ga. 373; Snyder v. Griswold, 
 37 Ills. 216; Van Buskirk v. Day, 32 
 Ills. 260; Cincinnatti R.R. Co. v. Pearce, 
 28 Ind. 502; Kent v. Carcaud, 17 Md. 
 291; Frost V. Blanchard, 97 Mass. 155; 
 Boardman v. Spooner, 13 Allen (Mass.) 
 353; Williams v. Bacon, 2 Gray (Mass.) 
 387, 391; Herndon v. Henderson, 41 
 Miss. 584 ; Carter v. Hamilton, 1 1 Barb. 
 
*I93 ENFORCING THE CONTRACT. [PART I. 
 
 construction put by the courts on the conditions of sale 
 which are commonly made part of the written contract has 
 been already considered (s). It is now proposed to point out 
 the usual remedies when either of the parties is in default, 
 and by whom and against whom they may be enforced. 
 
 Party Suing Must not be in Default. — Before either party 
 to an agreement brings an action upon it against the other, 
 he must be prepared to prove [193] that he has performed, 
 or been ready and willing to perform, his own part of it.' 
 
 Duty of Vendor. — When the subject of sale is land, it is, 
 as a rule, incumbent on the vendor to show a good title, to 
 prepare and furnish an abstract of the same at his own ex- 
 
 (N.Y.) 147; Parkhurstii.VanCortlandt, I 4oVt. 460; Hakes i'. Hotchkiss, 23 Vt. 
 Johns. Ch.(N.Y.) 273; Martin j-.Thrasher, 231.] (s) Anie,Chap.V. 
 
 [' Payne v. Graves, 5 Leigh (Va.) 561 ; Smith v. Lewis, 26 Conn, no; Led- 
 yard v. Manning, I Ala. 153; Headley v. Shaw, 39 Ills. 354; Hough v. Rawson, 
 17 Ills. 588; Shirley v. Shirley, 7 Blackf. (Ind.) 452; Warren v. Wheeler, 21 
 Maine, 484; Low v. Marshall, 17 Maine, 232; Howe ■</. Huntington, 15 Maine, 
 350; Linton v. Hichborn, 126 Mass. 32; Cook v. Doggett, ^ Allen (Mass.) 439; 
 Howe V. Conley, 16 Gray (Mass.) 552; Swan v. Drury, 22 Pick. (Mass.) 485; 
 Sims V. Boaz, II Sm. & M. (Miss.) 318; Morrison </. Ives, 4 id. 652; Culver v. 
 Burgher, 21 Barb. (N.Y.) 324; Williams i/. Healey, 3 Denio (N.Y.) 363; John- 
 son z/. Wygant, II Wend. (N.Y.) 48; Argall v. Raynor, 20 Hun (N.Y.) 267; 
 Gazley <■. Price, 16 Johns. (N.Y.) 267; Burgin v. Burgin, 82 Nor. Car. 196; 
 Grandy v. McCIeese, 2 Jones Law (Nor. Car.) 142; Campbell v. Gittings, 19 
 Ohio, 347; Ramsay v. Brailsford, 2 Desaus. (So. Car.) 582; Perry v. Wheeler, 
 24 Vt. 286; Jones V. Marsh, 22 Vt. 144. A purchaser who has not paid or 
 tendered payment of the purchase-money cannot maintain any action to com- 
 pel a conveyance of the property to himself or to obtain possession : Losee v. 
 Sauton, 24 La. Ann. 370; Branner v. Hardy, 18 La. Ann. 537; Battershall v. 
 Davis, 23 How. Pr. (N.Y.) 383; Armstrong v. Humphreys, 5 So. Car. 128. If 
 by the terms of a judicial sale incumbrances are to be discharged out of the pur- 
 chase-money, the purchaser cannot insist upon having the incumbrances discharged 
 before his payment : Sears v. Hyer, I Paige (N.Y.) 483. A commissioner who is 
 ordered to collect the price and make title to the purchaser has no authority to 
 convey the land until payment of the purchase-money : Barnes v. Morris, 4 Ired. 
 Eq. (Nor. Car.) 22. Nor can the vendor compel payment of the price while he 
 neglects to tender a deed (cases cited supra), or to have his sale confirmed if that 
 is necessary for its validity ; Dowling r<. Duke, 20 Texas, 181. And his unreason- 
 able delay, until the purchaser can no longer have the benefit of the purchase 
 substantially as if it had been completed within the contemplated time, may even 
 operate a discharge of the purchaser from the agreement : Jackson v. Edwards, 
 7 Paige (N.Y.) 386. And a purchaser who fails to complete his purchase within 
 the time designated in the terms of sale will not be entitled to the rents which 
 accrue after the sale and before the delivery of the deed; Mitchell v. Bartlett, 52 
 Barb. (N.Y.) 319. The purchaser's right accrues upon his compliance with the 
 terms of sale : O'Neal v. Bannon, 4 Bush. (Ky.) 23.] 
 
CHAP. X.] ENFORCING THE CONTRACT. I94* 
 
 pense (/) and to be ready to execute a conveyance according 
 to the terms of the contract iti). If the title is good as to 
 part only {v), or if the vendor has incurred a forfeiture, as by 
 breach of a covenant to insure {w), the purchaser may be able 
 to obtain a proportionate abatement of the purchase-money 
 or to rescind the contract. ^ 
 
 Qn a sale of goods there is, in general, an implied warranty 
 of title, and the vendor cannot recover the price from the 
 purchaser, if the latter has been obliged to deliver them to a 
 third party on account of the vendor's want of title {x) ; unless 
 it appear from the circumstances of the sale that the vendor 
 did not intend to assert ownership ; as, where he sold in a 
 particular capacity, for instance, as auctioneer, sheriff, pawn- 
 broker &c. (_y). Where unredeemed [194] pledged goods 
 
 (?) Anle, pp. 84, 94 e( seq. ; Sugd. the parties to windfalls, crops &c., see 
 
 406; Dart, 125; Add. Con. 395. A Dart, 247. 
 
 purchaser may waive his right to a good {x) Add. Con. 489; Benj. 5 1 1 ; Pas- 
 title, but such waiver must be in writing : ley w. Freeman, 3 T.R. 51, 57, If the 
 Goss V. Lord Nugent, 5 B. & Ad. 58. purchaser has paid the vendor, he can 
 
 (a) Poole V. Hill, 6 M. & W. 835; recover back the money: Eichholz v. 
 
 Dart, 959. As to the purchaser's right Bannister, 17 C.B.N.S. 708; 34L.J.C.P. 
 
 to have separate conveyances in lots on 105; cf. Adamson v. Jarvis, 4 Bing. 66, 
 
 payment of the additional expense, see 73. 
 
 Earl of Egmont v. Smith, 6 Ch. D. 469; (^y) Simms v. Marryat, 1 7 Q.B. 281 ; 
 
 46 L.J. Ch. 566. 20 L.J.Q.B. 458; Leake, 109, 402; 
 
 [v) Ante, p. 70; Dart, 1076; Sugd. Add. Con. 490; always supposing that 
 
 315. there was no fraud, such as selling while 
 
 (a/) Wilson z). Wilson, 14 C.B. 616; knowing that he had no title: Peto v. 
 
 2C.L.R. 818; 23 L.J.C.P. 137; iSJur. Blades, 5 Taunt. 657. [Hawpe v. 
 
 581. It is, moreover, the duty of the Smith, 25 Tex. Sup. 448; Thompson v. 
 
 vendor to keep the land let and in cul- Hunger, 15 Texas, 523.] As to the 
 
 tivation until completion of the pur- auctioneer's liability to the real owner 
 
 chase : Earl of Egmont v. Smith, ubi in such cases, see ante, p. 35. 
 supra. As to the respective rights of 
 
 [' " The general rule in all such cases is that the purchaser, if he chooses, is 
 entitled to have the contract specifically performed as far as the vendor can per- 
 form it, and to have an abatement out of the purchase-money, or compensation, 
 for any deficiency in the title, quantity, quality, description, or other matters touch- 
 ing the estate " : I Story, Eq. Jur. § 779, and cases there cited. A failure by one 
 who has separately sold to the same purchaser at an auction several distinct par- 
 cels of land to tender a deed or to make a good title as to one of the parcels does 
 not discharge the purchaser from the obligation of taking the other parcels: 
 Wells V. Day, 124 Mass. 38; Van Eps v. Schenectady, 12 Johns. (N.Y.) 436; 
 Mott V. Mott, 68 N.Y. 246. Otherwise if all the parcels were sold as one lot : 
 Mott V. Mott, supra. Where, at an administrator's sale to pay debts, land in 
 which the widow was entitled to dower was sold in two parcels, and she bid off 
 
 223 
 
* 
 
 194 ENFORCING THE CONTRACT. [PART I. 
 
 were put up for sale by auction, it was held that the pawn- 
 broker did not assert that he had a good title, but merely 
 that the goods had been pledged with him and were not 
 redeemed {2). So, on a sale by a sheriff, the sheriff does not 
 warrant his title to sell,^ but merely asserts that he does not 
 know of any defect in his title or authority to sell (a). 
 Where a boiler was sold by auction, under a distress for a 
 poor-rate, to the defendant, who subsequently resold it to the 
 plaintiff, after acquainting him with the circumstances, and 
 the mortgagees of the premises prevented the plaintiff from 
 removing it, it was held that the plaintiff could not recover 
 the price of the boiler from the defendant (li). The vendor 
 must also have been ready and willing to deliver the goods 
 according to the contract ; ^ though he will be excused from 
 delivering them at the time specified, if the purchaser has 
 requested him to postpone delivery (c). And, in the absence 
 of a condition to the contrary, the seller must afford the 
 
 (2) Morley v. Attenborough, 3 Ex. a satisfactory title to the property shall 
 
 500; 18 I. J. Ex. 148. be given, and in default thereof return 
 
 (a) Chapman v. .Speller, 14 Q.B. the price, will not invalidate the sale : 
 
 621; 19 L.J.Q.B, 241. The real owner Bacchus i'. Moreau, 4 La. Ann. 313.] 
 
 may affirm the sale and claim the pro- (/<) Bagueley v, Hawley, L.R. 2 
 
 ceeds from the sheriff: Oughton i>. C.P. 625; 36 L.J.C.P. 328. 
 
 Seppings, I B. & Ad. 241. [An agree- (<r) Plevins v. Downing, I C.P.D. 
 
 ment by the purchaser with the sheriff 220; 45 L.J.Q.B. 695. 
 that the latter shall retain the price until 
 
 both at unequal prices, it was held, on the sale being set aside as to the cheaper 
 part, that she might have her purchase of the other part also set aside, it appear- 
 ing that she would not have bought the latter parcel unless she could have obtained 
 both : Davis v. Cureton, 70 Nor. Car. 667.] 
 
 [' When trust property of any kind is sold under an order of a court of equity, 
 there is no implied warranty of the title, soundness, or quality thereof: Storm v. 
 Smith, 43 Miss. 497. The same rule applies to a sale of chattels by a mortgagee 
 under a power in the mortgage: Harris v. Lynn, 25 Kansas, 281 ; and to a pub- 
 lic sale made by trustees : Worthy v. Johnson, S Ga. 236; and in general to judicial 
 sales of real or personal property: Weakley n. Gurley, 60 Ala. 399; Brown v. 
 Wallace, 2 Bland Ch. (Md.) 585; Freeman v. Caldwell, 10 Watts (Penn.) 9; 
 Fox v. Mensch, 3 Watts & S. (Penn.) 444 ; Kilgore v. Peden, I Strobh. (So. Car.) 
 18; United States v. Duncan, 4 McLean, CO. 607. And to tax sales: Hamilton 
 V. Valiant, 30 Md. 139; Hoge v. Currin, 3 Gratt. (Va.) 201.] 
 
 [^ If property is properly sold by public auction, the sale is binding on the ven- 
 dor, although he had before the sale told the purchaser that his bid would not be 
 received, unless the vendor had also directed the auctioneer not to receive a bid 
 from that purchaser : Ricks v. Battle, 7 Ired. Law (Nor. Car.) 269.] 
 
 224 
 
CHAP. X.] ENFORCING THE CONTRACT. I95* 
 
 buyer an opportunity of inspecting the goods before accept- 
 ing them, in order to see whether they are the goods that he 
 bargained for {d). 
 
 Duty of Purchaser. — Unless otherwise agreed, it is the duty 
 of the purchaser, at his own expense, to prepare and tender 
 to the vendor a deed of conveyance,' and to be ready to pay 
 the amount due in respect of purchase-money, and interest, 
 if any;^ unless the vendor is unable to show a good title, or 
 has incapacitated [195] himself, as by conveying the estate 
 to another, from completing the contract {e). 
 
 On a sale of goods, the purchaser must have been ready 
 and willing to accept and pay for the goods. But where 
 goods are to be delivered and paid for by instalments, mere 
 non-payment of an instalment does not necessarily deprive 
 the purchaser of his right to delivery of the remainder of 
 the goods (/), unless it amounts to an absolute refusal on 
 his part to perform the contract, or takes place under such 
 
 ((/) Ishenvood z<. Whitmore, II M. 241; Morgan v. Swansea Urban Sani- 
 & W. 347. [If personal property sold by tary Authority, 9 Ch. D. 582, where it 
 public auction is remote from the place was held that a purchaser in possession 
 of sale, the purchaser, having had no was not entitled to execution of the 
 opportunity to examine it, has a right to conveyance, until he had paid the pur- 
 rely upon the statements of the seller chase-money. 
 
 with reference to it : Overbay v. Lighty, (/) But he will be liable in damages 
 
 27 Ind. 27.] to the vendor for such non-payment : 
 
 {/) Dart, 959; Add. Con. 412; Sugd. see Freeth v. Burr, ul>i inf. 
 
 [' In the United States, this duty is usually devolved upon the vendor. Antea, 
 p. 103, note (?,] 
 
 [" The vendor may for failure of payment treat the sale as a nullity : Reese v. 
 Dobbins, 51 Iowa, 282; Rowly v. Kemp, 2 La. Ann. 360; Jones v. Rucker^i 
 La. Ann. 440. For the liability of the purchaser of land sold for the satisfaction 
 of a debt to be compelled to pay the amount of his bid when he is himself the 
 creditor for whose payment the land was sold, see Laughlin v. Heer, 89 Ills. 119; 
 Sweeney v. Hawthorne, 6 Nevada, 129; Merwin v. Smith, 2 N.J. Eq. (i Green) 182; 
 Russell K. Gibbs, 5 Cow. (N.Y.) 390; Lane v. White, 12 Wise. 381 ; Beal v. Blair, 
 33 Iowa, 318. A transfer of the purchaser's bid to another, after avoidance of the 
 sale for non-payment of the price, will pass no title : Williams v. Barlow, 49 Ga. 
 530; Thompson v. Dimond, 3 Edwards Ch. (N.Y.) 298. Where a commissioner, 
 having sold real estate under a decree of court, gave to the purchaser a certificate 
 of sale stating that a deed was to be made out when ordered by the court, but 
 binding the vendor no further, held, that the payment of the purchase-money and 
 the delivery of the deed vifere not intended to be concurrent acts, and that a suit 
 might be maintained for the former without tender of the latter, the purchaser's 
 right to his deed after making full payment remaining : Swindell v. Richey, 41 
 Ind. 281.] 
 
 225 
 
*i95 
 
 ENFORCING THE CONTRACT. 
 
 [part I. 
 
 circumstances as to give the seller reasonable ground for 
 believing that the purchaser will be unable to pay the future 
 instalments {£■). 
 
 Vendor's Remedies on Sale of Land. — If a conveyance has 
 been executed, and the purchaser refuses to pay the purchase- 
 money, the vendor can recover the amount, together with 
 interest on the same from the day on which it ought to have 
 been paid (/i). 
 
 But if the purchaser refuses to execute a conveyance, and 
 the right of property remains in the vendor, the latter can- 
 not sue for the purchase-money (/), but may bring an action 
 for damages,' in which he can claim the expenses incurred 
 in preparing for the sale, and the difference," if any, between 
 the price agreed to be paid and, if he resell, the price realized 
 upon the resale (j), or, if he keep the property in his own 
 
 (f) Freeth v. Burr, L.R. 9 C.P. 208; 
 43 L.J. C.P. 91; Bloomer </. Bernstein, 
 ii. 5S8; Honck v. MuUer, 7 Q.B.D. 92; 
 50 L.J.Q.B. 529. As to bankruptcy of 
 purchaser, see post, p. 201. 
 
 (/i) Dart, 957; Add. Con. 416; 
 Leake, 1070. As to the right to inter- 
 est, see Dart, 627 ei seq. ; .Sugd. 628 ; 
 an/e, 104. [If an administrator's sale 
 is regularly conducted, without either 
 fraud or warranty, the purchaser is 
 bound to pay his bid : Mellen v. Boar- 
 man, 13 Sm. & W. (Miss.) 100. The 
 same rule applies to a sheriff's sale : 
 Downard v. Crenshaw, 49 Iowa, 296 ; 
 Moore -u. Akin, 2 Hill (So. Car.) 403. 
 And to a tax-sale : Pursell v. Porter, 20 
 La. Ann. 323. But if a warranty deed 
 has been gi\en by administrators of land 
 sold by them under an order of the pro- 
 bate court, which turns out to be void, 
 it was held in Puclcett v. McDonald, 6 
 How. (Miss.) 269, that the collection of 
 the purchase-money may be enjoined, 
 although the purchaser has not been 
 evicted. And see McClure v. Williams, 
 58 Ga. 494; Graham ''. Bleakie, 2 Daly 
 (N.V.) 55; Schenck v. Lllingwood, 3 
 
 Edwards Ch. (N.Y.) 175 ; Silver v. 
 Campbell, 25 N.J. Eq. 465.] 
 
 (0 Laird v. Pim, 7 M. & W. 474. 
 [If the seller recovers the whole pur- 
 chase-money, he cannot afterwards re- 
 fuse to perform the contract on his part : 
 Alna j^. Plummer, 4 Greenl. (Me.) 258; 
 Nelson i'. Carrington, 4 Munf (Va.) 
 332. See Swain v. Moberly, 17 Ind. 
 
 99-] 
 
 (y) See ante, pp. loS ci seq. [Ad- 
 ams V. McMillan, 7 Porter (Ala.) 73; 
 Smith V. Kinnev, 30 La. Ann., Pt. I., 
 332; Jones V. Succession of Hoss, 29 
 La. Ann. 564; Springer v. Berry, 47 
 Maine, 330; Stephens v, !Magruder, 31 
 Md. 168; Gardner z>. .Vrmstrong, 31 
 Mo. 535; Mount f. Brown, 33 Miss. 
 566; Bowser v. Cessna, 62 Penn. St. 
 14S; Wolfe v. Sharp, 10 Rich. (So. 
 Car.) 60; Fulton v. Davidson, 3 Heisk. 
 (Tenn.) 614. So if the purchaser at a 
 sheriffs sale fails to pay the amount of 
 his bid, the officer may resell, and hold 
 the first purchaser for any loss incurred : 
 Lamkin v. Crawford, S Ala. 153; Rob- 
 inson V. Garth, 6 Ala. 204 ; State v. 
 Lawson, 14 Ark. 114; Johns ~j. Trick, 
 
 [' See Sanborn v. Chamberlin, loi Mass. 409; Townshend v. Simon, 38 N.J. 
 Law, 239.] 
 
 226 
 
CHAP. X.] 
 
 ENFORCING THE CONTRACT. 
 
 196* 
 
 [196] hands, the presumed market value of the land {k). If, 
 upon resale, the estate produce more than the original pur- 
 chase-money, the vendor is entitled to retain the surplus (/). 
 Where the. purchaser has taken possession of the land before 
 execution of the conveyance, he must pay interest upon the 
 
 22 Calif. 511 ; People v. Hays, 5 Calif. 
 66; Humphrey v. McGill, 59 Ga. 649 ; 
 Hendrick zJ. Davis, 27 Ga. 167; Williams 
 V. Lines, 7 Blaclif. (Ind.) 46 ; Cowgill 
 V. Wooden, 2 id. 332; Osburn f. Curtis, 
 2 La. Ann. 764; Winslow &. Loring, 7 
 Mass. 392; lUingsworth v. Miltenber- 
 ger, 1 1 Mo. So; Petillo ex parte, 80 Nor. 
 Car. 50; Kelly v. Creen, 63 Penn. St. 
 299 ; Forster v. Hayman, 26 Penn. St. 
 266; Cooper o. Borrall, 10 Penn. St. 
 491 ; Minter v. Dent, 2 Bailey (So. Car.) 
 291. But the second sale must appear 
 to have been conducted i\ith fairness, 
 upon proper notice and not after the 
 bidders have departed, upon as favour- 
 able terms as the first sale, and without 
 any resort to means calculated to impair 
 the value of the estate in public estima- 
 tion : Adams v. McMillan, 7 Porter 
 (Ala.) 73; Hill V. Hill, 58 Ills. 239; 
 Judge V. Booge, 47 Mo. 544; Barnard 
 V. Duncan, 38 Mo. 170; Jones v. Null, 
 9 Nebraska, 254; Riggs v. Pursell, 74 
 N.Y. 370. If the sale is by an adminis- 
 trator, he must at his peril enforce this 
 liability of the original purchaser : Fon- 
 tenot V. Debaillon, 8 La. Ann. 509. It 
 has been held that an announcement, or 
 a provision in the terms of sale, that the 
 property will be resold at the expense 
 of a purchaser who fails to complete his 
 contract does not restrict the vendor to 
 the course, in WoodhuU v. Neafie, 2 
 N.J. Eq. (I Green) 409, and National 
 Ins. Co. V. Loomis, 11 Paige (N.Y.) 
 431. But if the terms of sale are that 
 the buyer shall within thirty days give 
 his note with good indorsers, and upon 
 his failure to do so that the land shall 
 be resold upon his account, the vendor 
 cannot maintain an action for breach of 
 the contract until the deficit is ascer- 
 tained by a resale : Webster v. Hoban, 
 7 Cranch, 399. And see Hunt v. Mc- 
 
 Fadgen, 2 Ark. 277; Pavisich v. Bean, 
 48 Calif. 364; D'Aquin v. Armant, 14 
 La. Ann. 217; Schaefer z,. O'Brien, 49 
 Md. 253; Isbell V. Kenyon, 33 Mich. 
 63 ; Adams v. Griffin, 3 Sm. & M. 
 (Miss.) 556; Wimer v. Obear, 23 Mo. 
 242; Miller v. Collyer, 36 Barb. (N.Y.) 
 250; Gross V. Pearcy, 2 Patt. & H. (Va.) 
 483.] It seems that, even in the ab- 
 sence of express stipulation, the vendor 
 has a right to resell and to charge the 
 purchaser with the deficiency : Noble v. 
 Edwardes, 5 Ch. D. 378. 
 
 (/j) Add. Con. 416. 
 
 (/) Dart, 163. [Thompson v. 
 Kelly, loi Mass. 291. A different rule 
 \i'as applied in Mealey v. Page, 41 Md. 
 172. In that case, the purchaser at an 
 executor's sale being unable to comply 
 with the terms of sale, the property 
 was, by order of the orphan's court, 
 resold at his risk, and brought an 
 amount greater than the bid at the 
 first sale; and he claimed the excess 
 of the proceeds of the second sale, after 
 the payment of all proper expenses, 
 costs, and charges. Held, that as the re- 
 sale was made on the account and at the 
 risk of the first purchaser, he was enti- 
 tled to whatever balance might remain 
 of the proceeds of the resale after de- 
 ducting all reasonable expenses, counsel- 
 fees, executor's commission, and the 
 original purchase-money with interest 
 from the time of the first sale; and that 
 this right of the original purchaser was 
 not in any wise affected by the fact that 
 he was without means of payment and 
 had given no security for the payment 
 of his purchase-money, and would have 
 been unable to make good the loss if 
 the resale had produced less than the 
 amount of his own bid ; Mealey v. Page, 
 supra7\ 
 
197 
 
 ENFORCING THE CONTRACT. 
 
 [part I. 
 
 purchase-money, pending the completion of the contract {m) ; 
 and if he subsequently refuse to perform the contract, he is 
 liable for the use and occupation of the land from the date 
 of such refusal («). A purchaser cannot elect to forfeit his 
 deposit and avoid the contract (o) ; but where a deposit has 
 been paid, the vendor must bring it into account on seek- 
 ing to recover for the loss occurring upon a resale of the 
 property (/). 
 
 Specific Performance. — Or the vendor may bring an action 
 for specific performance {q) of the contract, claiming damages 
 for any loss that he may have suffered from its non-perform- 
 ance {r). And now he may prefer an alternative claim for 
 damages for breach of the contract in the event of the court 
 refusing to grant him specific performance (j). 
 
 And a court of equity will decree specific performance of 
 [197] a parol agreement within the 4th section of the Statute 
 of Frauds in the following cases {t): i. where the defendant 
 has by fraud prevented a compliance with the statute {u) ; 
 2. where the defendant by his pleadings admits the agree- 
 
 (m) Ballard v. Shutt, 15 Ch. D. 122. 
 [Havens v. Grand Junction R.R. Co., 
 109 Mass. S8. A purchaser held to 
 account for the loss upon a resale will 
 not also be charged with rent in the 
 meantime : Mars v. Connor, 9 So. Car. 
 70. Where commissioners of confisca- 
 tion, after making a sale of unlocated 
 land, neglected for se^'eral years to have 
 the land surveyed, so that the purchaser 
 was prevented from taking possession, 
 the court refused to charge him with 
 interest, except from the time of the 
 survey : Wainwright v. Read, I Desau. 
 (So. Car.) 573. 
 
 (/;) Howard v. Shaw, 8 M. & W. 
 118. 
 
 (0) Dart, 1227; Sugd. 119. [But 
 if the vendor consents to waive the 
 contract, the purchaser will be entitled 
 to a return~of what payments he may 
 have made on account of the purchase- 
 money : Drake v. Goodrich, 6 Blatchf. 
 C.C. 531.] 
 
 (/) Ockenden v. Henly, E.B. & E. 
 485; 27L.J.Q.B. 361; 4 Jur.N.S.999; 
 
 22 
 
 Essex V. Daniell, L.R. 10 C.P. 538; 32 
 L.T.N.S. 476. 
 
 (y) This action must be brought in 
 the Chancery Division: Jud. Act, 1S73, 
 
 s- 34- 
 
 (;■) Jacques v. Millar, 6 Ch. D. 153, 
 And the ordinary rules as to payment 
 of interest by the purchaser apply : In 
 re Pigott & the Great Western Ry. Co., 
 18 Ch. D. 146, 150. 
 
 (j) Tamplin v. James, 15 Ch. D. 
 215, 222; 29 W.R. 311; 43 L.T.N.S. 
 50; Thompson v. Ringer, W.N. 1881, 
 48; Jud. Act, 1875, O. xix., 1. 8. 
 
 •(/) Dart, 1023. 
 
 (ii) Lincoln v. Wright, 4 De G. & 
 J. 16; Haigh V. Kaye, L.R. 7 Ch. 469. 
 [See Jenkins v. Eldridge, 3 Story, C.C. 
 181, 290; Taylor v. Luther, 2 Sumner 
 C.C. 228, 232; Kennedy v. Kennedy, 
 2 Ala. 571 ; Blanchard v. Moore, 4 J.J. 
 Marsh. (Ky.) 471 ; Wesley t/. Thomas, 
 6 Har. & J. (Md.) 24; Watkins v. 
 Stockett, id. 435; Glass v. Hulbert, 102 
 Mass. 24, 38; Chetwoodz/.Brittan, 2 N.J. 
 Eq. (i Green) 438 ; Phyfez;. Wardell, 2 
 
CHAP. X.J ENFORCING THE CONTRACT. 197* 
 
 ment (v) ; 3. where there has been a part performance by the 
 plaintiff.^ 
 
 Part Performance. — The part performance must be "an act 
 such that the Court shall, by reason of the act itself, without 
 knowing whether there was an agreement or not, find the 
 parties unequivocally in a position different from that which, 
 according to their legal rights, they would be in if there were 
 no contract " (w). Delivery of possession is sufficient (.jr), 
 provided that it is not merely a constructive delivery. Where 
 a person, who had purchased at an auction certain market- 
 tolls belonging to a corporation, paid a month's rent in ad- 
 vance and received the keys from the person in charge of the 
 
 Edw. Ch. (N.Y.) 47; Rasdall v. Ras- stadtl, 13 Wise. 142. And the objec- 
 
 dall, 9 Wise. 379.] It is not fraud in tion may be set up by demurrer : Walter 
 
 a purchaser to decline to sign the fair z/. Locke, 5 Cush. (Mass.) 90, 93 ; 
 
 copy of an agreement he had assented Chambers v. Lecompte, 9 Missouri, 566; 
 
 to when in draft, and which he had Cozine v. Graham, 2 Paige (N.Y.) 
 
 promised to sign as soon as the fair I??.] 
 
 copy was made : Wood v. Midgley, 2 (w) Per Wickens, V.-C, in Dale v. 
 
 Sm. & G. 115. Hamilton, 5 Hare, 369, 381 ; of. Coles 
 
 (v) It must be remembered that a v. Pilkington, L.R. 19 Eq. 174; Wil- 
 
 defence founded on the Statute of liams c. Evans, ib. 547. [Smith v. 
 
 Frauds cannot now be raised by de- Smith, i Rich. Eq. (So. Car.) 130, 132.] 
 murrer: Jud. Act, 1S75, O. xix., '• ^3; (-t) Ungley v. Ungley, 5 Ch. D. 
 
 Catling V. King, 5 Ch. D. 660; 46 L.J. 887; 46 L.J. Ch. 854; Alderson v. 
 
 Ch. 384; Shardlow v. Cotterell, W.N. Maddison, 7 Q.B.D. 174, 180; 50 L.J. 
 
 1881, 2. [The defendant may rely on Q.B. 466; and see the judgments in 
 
 the statute of frauds, although he admits Hunt v. Wimbledon Local Board, 4 
 
 the verbal agreement : Flagg v. Mann, C.P.D. 48. [Eaton v. Whittaker, 18 
 
 2 Sumner, C.C. 486, 528, 529; Winn v. Conn. 222; Johnson v. Glancy, 4 
 
 Albert, 2 Md. Ch. Dec. 169; Luckett v. Blackf. (Ind.) 94, 98; Kidder v. Barr, 
 
 Williamson, 37 Mo. 388; Newton v. 35 N.H. 235, 255; Tilton u. Tilton, 9 
 
 Swasey, 8 N.H. 9; Allen v. Chambers, N.H. 386, 390; Pugh v. Good, 3 Watts 
 
 4 Ired. Eq. (Nor. Car.) 125; Woods v. & S. (Penn.) 56; Allen's Estate, i id. 
 
 Dille, II Ohio, 455; Brandeis v. Neu- 383.] 
 
 [' The specific performance is decreed on the ground that the non-completion 
 would operate a fraud upon the party who has acted under the agreement : Ham- 
 ilton V. Jones, 3 Gill & J. (Md.) 127; Parkhurst v. Van Cortlandt, 1 Johns. Ch. 
 274, 284; McKee v. Phillips, 9 Watts (Penn.) 85, 86; Allen's Estate, i Watts cS: 
 S. (Penn.) 383, 385; Anderson v. Chick, I Bailey Eq. (So. Car.) 118; Nye v. 
 Taggart, 40 Vt. 295 ; Heth v. Wooldridge, 6 Rand. (Va.) 605, 607. The doc- 
 trine is not always adopted; Wilton v. Harwood, 23 Maine, 131 ; Bubier z/. Bu- 
 bier, 24 Maine, 42; Park v. Johnson, 4 Allen (Mass.) 259; Buck v. Dowley, 16 
 Gray, 555; McKubin v. Clarkson, 5 Minne. 247; Box v. Stanford, 13 Sm. & M. 
 (Miss.) 93; Beaman v. Buck, 9 id. 207, 210; Allen v. Chambers, 4 Ired. Eq. 
 (Nor. Car.) 125 ; Dunn v. Moore, 3 id. 364; Ridley t>. McNairy, 2 Humph. 
 (Tenn.) 174; Patten v. McClure, Mart. & Yerg. (Tenn.) 333.] 
 
 229 
 
*I98 ENFORCING THE CONTRACT. [pART I. 
 
 market, through an error on the part of the latter and con- 
 trary to the directions of the town-clerk, this was held not to 
 be such a part performance on his part as would entitle him 
 to maintain an action for specific performance {y) ; [198] for 
 payment of a part {s), or even of the whole {a), of the pur- 
 chase-money is not by itself sufficient ; since it may be 
 repaid, and then the parties will be just as they were before.' 
 Where several lots are purchased separately, acts of part 
 performance with regard to one will not make good a verbal 
 agreement as to the others {b). The acts done, moreover, 
 must not be merely introductory or ancillary to the agree- 
 ment, such as delivery of an abstract of title, giving orders 
 for a conveyance to be drawn or engrossed, going to view 
 the estate, employing appraisers to value the stock, and the 
 like {c) ; " they must be such as are unequivocably referable to 
 the agreement ; .... it is not sufficient that the acts are con- 
 sistent with the existence of some agreement, unless such 
 agreement has reference to the subject-matter" {d). A 
 wrongful obtaining of possession by the purchaser does not 
 
 (j) Mayor of Kidderminster v. (i) Buckmaster v. Harrop, 13 Ves. 
 
 Hardwiclc, L.R. 9 Ex. 13; 43 L J. Ex. 9. 456, 474. 
 
 (z) Clinan v. Coolie, i Sch. & L. 22, (c) Notes to Lfester v. Foxcroft, i 
 
 40. [Coit/ra, in Iowa, Fairbrother v. W. & T.L.C. 828, 833. 
 Shaw, 4 Iowa, 570; Olive v. Dougherty, ( d) Per cur. in Alderson v. Maddi- 
 
 3 Iowa, 371.] son, 7 Q.B.D. 174, 178; 50 L.J.Q.B. 
 
 (a) Hughes v. Morris, 2 De G.M. & 466. [Lester v. Kinne, 37 Conn. 9, 14; 
 G. 349, 356; of. Hunt V. Wimbledon Elakeney i". Ferguson, 3 English (.Vrk.) 
 Local Board, 4 C.P.D. 4S, 61. [Unless 272; Wilson v. Wilson, 6 Mich. 9; 
 repayment of the money will not restore Phillips v. Thompson, i Johns. Ch. 
 the purchaser to his original position: (N.Y.) 131, 149; Robertsons. Robert- 
 Johnson V. Hubbell, 2 Stockt. (10 N.J. son, 9 Watts (Penn.) 32, 42; Smith v. 
 Eq.) 332; Malins v. Brown, 4 Comst. Smith, I Rich. Eq. (So. Car.) 130,133; 
 (N.Y.) 403; Everts v. Agnes, 4 Wise. Anthony v. Leftwick, 3 Rand. (Va.) 
 343-] 238, 247, 277.] 
 
 [' See Meredith v. Naish, 3 Stewart (Ala.) 207; Allen v. Booker, 2 id. 21 ; 
 Underbill v. Allen, 18 Ark. 466; Keatts v. Rektor, I Pike (Ark.) 392; Eaton v. 
 Whitaker, 18 Cunn. 222; Barickman v. Kuykendall, 6 Blackf. (Ind.) 21; Glass 
 V. Hulbert, 102 Mass. 24 ; Sanborn v. .Sanborn, 7 Gray (Mass.) 142 ; Hood V. 
 Bowman, I Freem. (Miss.) Ch. 290, 294; Ham v. Goodrich, 33 N.H. 32, 36-39; 
 Cole V. Potts, 2 Stockt. (10 N.J. Eq.) 67 ; Campbell v. Campbell, 3 Stockt. 
 (11 N.J. Eq.) 26S; Leflerson v. Dallas, 20 Ohio St. 74; Sites v. Keller, 6 Llam- 
 mond (Ohio) 483; Allen's Estate, i Watts & S. (Penn.) 383; McKee u. Phillips, 
 9 Watts (Penn.) 85; Hatcher v. Hatcher, i McMullan Eq. (So. Car.) 311.] 
 
 230 
 
CHAP. X.j ENFORCING THE CONTRACT. 1 99* 
 
 amount to an act of part performance by the vendor (e). The 
 acts done must have been performed by the party seeking 
 specific performance, and not by the party to be charged ; 
 for if the latter repudiate the contract, after acts of part per- 
 formance on his part only, the loss falls on him alone, and 
 there is no fraud upon the former (/). 
 
 Specific Performance, when Refused. — As a general rule, 
 specific performance will be refused on the following grounds : 
 that damages will afford a sufficient compensation (g-); that 
 the contract was in breach of [199] trust (A), or was impos- 
 sible to perform (?) ; that the enforcement of it would involve 
 a breach of a prior contract (j), or be a fraud upon the pub- 
 lic (k) ; or that the plaintiff was guilty of misrepresenta- 
 tion (/). 
 
 Vendor's Remedies on Sale of Goods. — When the property 
 in goods has vested in the purchaser (m), and he refuses to 
 pay for them, the vendor's remedy is an action for the price («), 
 and, under certain circumstances (o), for interest by way of 
 damages. He is not, as a rule, justified in reselling the 
 goods, even though they remain in his possession (/) and 
 subject to his lien (q). If he resell the goods, he may still 
 
 (e) Cole V. White, cited in Whit- (A) Tolson v. Sheard, 5 Ch. D. 19; 
 
 bread v. Broclihurst, i Br. Ch. 403, 409. 46 L.J. Ch. 815. 
 
 [Danforth v. Lancey, 28 Ala. 274 ; (;) Green v. Smith, I Atk. 573; 
 Carrols v. Cox, 15 Iowa, 455; William- Denton v. Stewart, i Cox, 258; Green- 
 son z". Williamson, 4 Iowa, 279; Char- away v. Adams, 12 Ves. 395. [Sears 
 plot V. Sigerson, 25 Mo. 63; Wallace v. Boston, 16 Pick. 357; Woodward v. 
 V. Brown, 2 Stockt. (10 N.J. Eq.) 308; Harris, 2 Barb. (N.Y.) 439.] 
 Robertson sv. Robertson, 9 Watts (Penn.) (_;') Willmott v. Barber, 15 Ch. D. 
 32, 42; Givens v. Calder, 2 Desaus. 96. 
 (So. Car.) 171.] (Ji) Post v. Marsh, 16 Ch. D. 395. 
 
 (/) Buckraaster v. Harrop, 7 Ves. (/) Ante, pp. 51, 53. [See Hardin 
 
 341, 346; notes to Lester v. Foxcroft, i v. Smith, 49 Texas, 420.] 
 W. & T.L.C. 828. [Hawkins v. Hunt, (zn) See ante, pp. 185 et seq. 
 
 14 Ills. 42; Maryland Savings Bank v. (k) Add. Con. 471; Leake, 1057. 
 
 Schroeder, 8 Gill & J. (Md.) 93; Luck- (0) See 3 & 4 Will. IV. c. 42, s. 28, 
 
 ett V. Williamson, 37 Mo. 388.] as to interest. 
 
 {£) Dart, 985; notes to Cuddee v. (/) Martindale v. Smith, i Q.B. 
 
 Rutter, I W. & T.L.C. 786. [Hepburn 395; Page v. Cowasjee Eduljee, L.R. 
 
 V, Dunlop, I Wheaton, 179; Hepburn i P.C. 127. Mere non-payment does 
 
 V. Auld, 5 Cranch, 262 ; Savery v. not rescind the contract : see Ex parte 
 
 Spence, 13 Ala. 561 ; Sears v. Boston, Whittaker, L.R. 10 Ch. 446. 
 16 Pick. (Mass.) 357; Hatch v. Cobb, {£) See ante, p. 187, as to vendor's 
 
 4 Johns. Ch. (N.Y.) 559.] lien. 
 
 231 
 
*20O ENFORCING THE CONTRACT. [PART I. 
 
 sue the purchaser for the price, leaving the latter to bring a 
 cross-action for the wrongful taking, the measure of damages 
 in which would be the value of the goods when retaken {r). 
 Thus, where an auctioneer received a bill of exchange in 
 payment of goods which he had sold and delivered to the 
 purchaser's agent, and, on the bill being dishonoured, re- 
 took and resold the goods, it was held, in an action by him 
 upon the bill, that he was entitled to recover the full amount, 
 and that the purchaser's remedy was an action for the tor- 
 tious taking {s). If the seller of goods, being in [200] pos- 
 session of them, gives express notice to the purchaser that 
 they will be resold, unless removed and paid for within a 
 reasonable time from the receipt of the notice, and that he 
 will hold the latter liable for loss, he will be entitled, in a 
 reasonable time, to resell the goods, and to sue for the differ- 
 ence between the jDrice realized and that agreed upon, to- 
 gether with the expenses of the resale, as damages occasioned 
 by the breach of contract (t). On sales by auction, the con- 
 ditions generally reserve to the vendor a right to resell on 
 the purchaser making default, and to charge the latter with 
 the loss. In such a case, the original sale is conditional 
 only, and is rescinded on the right being exercised, and the 
 vendor's remedy is not an action for the price, but a special 
 agtion for the loss of the price and the expenses of the re- 
 sale {u). The vendor is, however, bound by the conditions, 
 and must not sell the goods in a different manner than is 
 specified in the conditions, or before the expiry of the time 
 granted to the purchaser in which to remove them {v). And 
 
 (?-) In ordinary cases this would be man v. Hampton, 2 Watts & S. (Penn.) 
 
 the amount reaUzed upon the resale. 377.] 
 
 As to counterclaim instead of cross- (f) Woolfe k. Home, 2 Q.B.D. 355; 
 
 action,see Jud. Act, 1S73, s. 24, sub-s. 3. 46 L.J.Q.B. 534. [But the resale should 
 
 (j) Stephens u. Willcinson, 2 B. iS: be made without unreasonable delay: 
 
 Ad. 320; cf. Page v. Cowasjee Eduljee, Saunders v. Bell, 56 Ga. 442. The 
 
 uU supra. seller must on the resale dispose of the 
 
 (^) McLean v. Dunn, 4 Bing. 722; goods in good faith, adopting the mode 
 
 I Moo. & P. 780. Nor would the pur- of sale best calculated to produce their 
 
 chaser be entitled to bring a cross-action full value. If such goods are usually 
 
 for trover: Page -u. Cowasjee Eduljee, sold by public auction, the sale should 
 
 ubi supra. be made in that manner. If the cus- 
 
 («) Lamondz'. Devalle, 9Q.B. 1030; tom is to sell them through a broker, 
 
 16 L.J.Q.B. 136; II Jur. 265. [Coff- that mode of sale should be resorted to. 
 
 232 
 
CHAP. X.j ENFORCING THE CONTRACT. 20I* 
 
 where a deposit has been paid, it must be brought into 
 account by a vendor who seelcs to charge a purchaser with 
 the loss incurred on a resale (w). 
 
 If the right of property has not passed, the vendor must 
 not sue for the price,' for he cannot have both that and the 
 goods, but should bring an action against the purchaser for 
 not accepting them, and the measure of damages will be the 
 difference between the price agreed to be paid and the [201] 
 market value of the goods at the time of breach (which may 
 be ascertained by a resale in a reasonable time after the 
 purchaser's refusal to accept the goods), together with the 
 expenses incurred by the vendor in fulfilling his part of the 
 contract, and the costs of the resale, if there was one (x). 
 A purchaser cannot avoid his liability to pay damages by 
 giving notice to the vendor of his intention not to accept : 
 an unconditional renunciation of a contract before the time 
 for performance amounts to a breach at the option of the 
 promisee (j). 
 
 There is no rule of law which requires potts v. Evans, 5 M. & W. 475. The 
 the resale to be made by auction, or in measure of damages is the same in an 
 any particular manner : Crooks c Moore, action for not accepting shares: Stew- 
 I Sandf. (N.Y.) 297. An administrator art v. Cauty, 8 M. & W. 160; Pott v. 
 sold a crop of corn by auction; and on Flalher, 16 L.J.Q.B. 366; 11 Jur. 735. 
 the purchaser's refusing to take it and [If the purchaser at an auction sale 
 pay for it, he applied for and obtained does not fulfil his contract, he is liable 
 leave of court to sell it at private sale, for the loss incurred at a second auc- 
 He did so, for a less price than it had tion: Hicks v. Ayer, 5 Ga. 298; Camp- 
 brought at the auction, and sued the bell i/. Ingraham, I Mill Const. (So. 
 first purchaser for the difference. Held, Car.) 293; Blackwood f. Leman, Harp, 
 that his obtaining leave to sell at private (So. Car.) 219; Hall v. O'Hanlon, 2 
 sale was not a waiver of his right against Brev. (So. Car.) 46. But the loss at 
 the first purchaser : Meek v. Spencer, 8 the vendor's second sale is merely 
 Ind. 118.] J>rima facie evidence of the damages; 
 
 (lu) Ockenden v. Henly, E.B. & E. it is not conclusive : Boinest v. Leignez, 
 
 485; 27 L.J.Q.B. 361; 4 Jur. N.S. 999. 2 Rich. (So. Car.) 464. See Chambers 
 
 As to forfeiture of deposit, see an^e, pp. v. Fort Bend County, 14 Texas, 34.] 
 
 IjS ei seri. (j) Frost v. Knight, L.R. 7 Ex. 
 
 (jc) Add. Con. 471; Leake, 1057; III; 41 L.J. Ex. 78. 
 Boorman v. Nash, 9 B. & C. 145; Phil- 
 
 [^ Where in 1863 a slave was sold under a decree of chancery, and delivered 
 to the purchaser, but the sale M'as not confirmed before the emancipation in 1865, 
 it was held that the owners could not enforce payment of the price, but were only 
 entitled to the hire of the slave from the day of the sale to the date of the eman- 
 cipation : Miller z'. Feezor, 82 Nor. Car. 192.] 
 
 233 
 
*202 ENFORCING THE CONTRACT. [PART I. 
 
 Action for Specific Performance. — Specific performance of a 
 contract relating to personal property is enforced only in 
 special cases {z) ; as, where the subject-matter consists of arti- 
 cles of unusual beauty, rarity and distinction {a), or of rail- 
 way shares of which there is only a limited number in the 
 market {b). 
 
 ■Where Purchaser Bankrupt. — It has already been seen (c) 
 that the vendor has, in case of the purchaser's insolvency, a 
 right of stoppage in transiUi. If the purchaser becomes 
 bankrupt, and the goods are still in the vendor's possession, 
 the latter may, if the trustee in the bankruptcy declines to 
 adopt the contract (d), resell them and prove against the 
 bankrupt's estate for the difference between the contract 
 price and the price obtained on the resale {e). 
 
 [202] Purchaser's Remedies on Sale of Land. — If, on a sale 
 of land, the conveyance has been executed, the purchaser 
 has, in general (/"), no remedy for any defects in the title to, 
 or the quantity or quality of, the estate, except upon the ven- 
 dor's covenants, if there are any {g)} 
 
 If the vendor refuses, or is unable, to execute a convey- 
 
 (3) As damages generally afford a {/) Ante, p. i88. 
 
 sufficient compensation: see ante, p. {d') See ante, p. 189. 
 
 198. (e) Ex parte Stapleton, 10 Ch. D. 
 
 ((7) Falcke v. Gray, : Drew. 658. 586. 
 
 {li) Dart, 986; Shaw v. Fislier, 2 (/} Viz., where the vendor has not 
 
 De G. & S. II; Wynne v. Price, 3 De been guilty of fraud. 
 
 G. & S. 310; Doloret v. Rothschild, i {£) Dart, 777; Clare ». Lamb, L.R. 
 
 Sim. & St. 598; Duncuft v. Albrecht, 10 C.P. 334; 44 L.J.C.P. 177; ci.ante, 
 
 12 Sim. 189. p. 52, note (/). 
 
 [' " By the rules of law, when a deed is executed in pursuance of a contract 
 for the s.ale of land, all prior proposals and stipulations are merged, and the deed 
 is deemed to express the final and entire contract between the parties " : William^ 
 V. Hathaway, 19 Pick. (Mass.) 387, 388. To the same effect, see Van Rensselaer 
 t/. Kearney, ii Howard, 297, 322; Carter v. Beck, 40 Ala. 599; Hoppesi/. Cheek, 21 
 Ark. 5S5 ; Eavkhamsted v. Case, 5 Conn. 528; Byrd z;. Turpin, 62 Ga. 591 ; Bond 
 V. Ramsey, 89 Ills. 29; Craddock v. Shirley, 3 A. K. Marsh. (Ky.) 288; Miller 
 V. Long, 3 id. 334; Soper v. Stevens, 14 Maine, 133; Earle v. DeWitt, 6 Allen 
 (Mass.) 520; Falconer v. Clark, 7 Md. 177; Witbeck v. Waine, 16 N.Y. 532, 535; 
 Abbott V. Allen, 2 Johns. Ch. (N.Y.) 519, 523; Gouverneur ;■. Elmendorf, 5 id. 
 79, 84; Griffith V. Kempshall, i Clark (N.V.) 571 ; Dickey %•. Beatty, 14 Ohio St. 
 389; Jones V. Wood, i5 Penn. St. 25; Maney v. Porter, 3 Humph. (Tenn.) 347; 
 Cooper V. Singleton, 19 Texas, 260; Eeale v. Seiveley, 8 Leigh (Va.) 658; Sut- 
 ton V. Sutton, 7 Gratt. (Va.) 234.] 
 
 234 
 
CHAP. X.J ENFORCING THE CONTRACT. 2O3* 
 
 ance, or cannot show a good title {h), the purchaser's remedy 
 is an action for breach of the contract, in which he may- 
 recover his deposit, and interest on the same (?'), and his ex- 
 penses (J), as special damage.^ Under the last mentioned 
 head will also be included the expenses of comparing deeds, 
 searching for judgments, making journeys for those pur- 
 poses {k), preparing the agreement, &c. (/), and also interest 
 on the purchase-money, if it has been lying idle pending an 
 endeavour by the vendor to clear up the title {in) ; but not 
 expenses incurred previously to entering into the contract, 
 nor the expense of a survey of the estate, or of a conveyance 
 drawn up in anticipation of a completion of the purchase («), 
 nor the extra costs of a chancery suit touching the purchase, 
 in which the vendor was defeated, nor losses sustained by a 
 resale of stock prepared for the estate {o), nor damages for 
 loss of the bargain, unless the vendor has not acted bond 
 [203] fide or has not done all that he could to fulfil the con- 
 tract (/). 
 
 (Ji) The Court will in some cases i Bing. N.C. 492; iSco. 443; i Hodg. 
 
 enlarge the time for showing a good 70. 
 
 title: Dart, 418. [If the title of real (/) Hanslip v. Padwick, 5 Ex. 615; 
 
 estate sold under a decree of court was Richardson v. Chasen, 10 Q.B. 756 ; 
 
 represented at the sale to be indisput- Powell v. Powell, L.R. 19 Eq. 422; 44 
 
 able, the sale may be vacated, even after L.J. Ch. 31 1. 
 
 its confirmation, for a defect in the title, («) Sherry v. Oke, 3 Dow. P.C, 
 
 upon the petition of the purchaser, if 349. 
 
 the proceeds of the sale have not yet («) Unless the sale go off by reason 
 
 been distributed: Preston v. Fryer, 38 of a concealed incumbrance: Dart, 949; 
 
 Md. 221 ; Henisler u. Nickam, id. Sugd. 362. 
 270.] {0) Hodges V. Earl of Litchfield, 
 
 (i) See ante, pp. 180, 181. ubi supra. 
 
 (y) Provided that there is a valid (/) Dart, 951, ei seq., discussing 
 
 contract: Gosbell v. Archer, 2 A. & E. Bain v. Fothergill, L.R. 7 H.L. 158; 
 
 500; 4 N. & M. 485; I H. & W. 31. 43 L.J. Ex. 243; and. see Leake, 1071; 
 
 (/f) Hodges V. Earl of Litchfield, Add. Con. 417. 
 
 [' And if the sale made by a trustee is avoided by the cestui que trust, the pur- 
 chaser will have a lien upon the land to reimburse him for the price which he has 
 paid, so far as this has gone to the benefit of the cestui qtie trust : Waggener v. 
 Lyles, 29 Ark. 47; Kinney v. Knoebel, 51 Ills. 112 ; Bland v. Bowie, 53 Ala. 152; 
 Shepherd v. Mclntire, 5 Dana (Ky.) 574 ; Short v. Porter, 44 Miss. 533; Springs 
 z/. Harven, 3 Jones Eq. (Nor. Car.) 96. See, as to rights of the purchaser at 
 such a sale, Slicer v. Pittsburg Bank, 16 Howard, 571; Lamkin v. Reese, 7 Ala. 
 170; Browning v. Howard, 19 Mich. 323; Glenn v. Glenn, 7 Heisk. (Tenn.) 
 367; Haynes v. Swann, 6 id. 560; Click v. Burris, id. 539.] 
 
 23s 
 
*204 ENFORCING THE CONTRACT. [PART I. 
 
 Action for Specific Performance. — It is also open to the 
 purchaser to bring an action for specific performance. The 
 remarks already made {g) on this kind of action are, mutatis 
 mutandis, as applicable, when the purchaser is plaintiff, as 
 when the action is brought by the vendor. 
 
 Purchaser's Remedies on Sale of Goods. — Where, when the 
 subject of sale is goods, the right of property has passed (r), 
 and the vendor wrongfully retakes possession of the goods, 
 after they have been delivered to the purchaser, the latter 
 may recover their full value in an action for their conversion, 
 the vendor having his remedy in a cross-action for the price, 
 if that remains unpaid is). If the vendor has not delivered, 
 and refuses, or is unable, to deliver, the goods, the purchaser 
 may bring an action, if the right of property has passed, for 
 their conversion, or, if it has not passed, for damages for 
 breach of contract.' In either case the measure of damages 
 is the difference between the price agreed to be paid and the 
 market value of the goods at the time and place when and 
 where they ought to have been delivered {t), together with so 
 much of the purchase-money as has been paid {u), and inter- 
 est [204] thereon {v). But the purchaser cannot recover for 
 loss of profit on a resale, unless the vendor had notice of his 
 intention to resell {w). 
 
 (^cf) Ante, pp. 196 ct seq. [As to 624; Williams v. Reynolds, 6 B. & S. 
 
 enforcing specific performance in favor 495; 34 L.J.Q.B. 221; Martindale v. 
 
 of a purchaser from a sheriff, an ad- Smith, I Q.B. 3S9; Chinery v. Viall, 5 
 
 ministrator, or other trustee, see Estate H. & N. 288; 29 L.J. E.x. 180 ; Flinde 
 
 of Lewis, 39 Calif. 306; State z;. Byrd, v. Liddell, L.R. 10 Q.B. 265; 44 L.J. 
 
 42 Ga. 629; McCready v. Sexton, 29 Q.B. 105; Frame v. Gaudet, L.R. 6 
 
 Iowa, 356; Gridley v. Phillips, 5 Kan- Q.B. 199; 40 L.J.Q.B. 121; Roper v. 
 
 sas, 349; Patrick v. Carr, I Wins. Eq. Johnson, L.R. 8 C.P. 167; 42 L.J.C.P. 
 
 (Nor. Car.) 87.] 65. 
 
 (;') See ante, p. 185. {ti) See ante, p. 180, as to recovery 
 
 \s) Gillard v. Brittan, 8 M. & W. of deposit. 
 
 575; Stephens z'. Wilkinson, 2 B. & Ad. {v) Sartup z;. Cortazzi, 2 C.iL & R. 
 
 320. See supra, p. 199, note (r). 165. 
 
 (/) Add. Con. 472; Leake, 1058 et (w) Williams v. Reynolds, 6 B. & S. 
 
 seq.; Gainsford v. Carroll, 2 B. & C. 495; 34 L.J.Q.B. 221; liadley i;. Bax- 
 
 [' The purchaser of cows at auction, the conditions of the sale having been 
 that the purchasers should give notes indorsed for the price previously to the de- 
 livery of the property, is not entitled to a delivery and has no right which he can 
 transfer to another, until he complies with these conditions: Mazoue v. Gaze, iS 
 La. Ann. 31.] 
 
 236 
 
CHAP. X.] ENFORCING THE CONTRACT. 205* 
 
 Or the purchaser may, when specific goods have been sold 
 for a price in money, obtain delivery of the goods them- 
 selves (x). 
 
 Breach of "Warranty.- — Where a specific and ascertained 
 article is sold absolutely, with a warranty, the purchaser can- 
 not, in general (7), upon breach of the warranty, return the 
 article and recover the price, if paid, or resist an action for 
 the price, if unpaid ; he may, however, offer to return it, and, 
 on the vendor's refusal to receive it, sell the article and 
 recover the difference in an action for breach of warranty, or 
 set it off in an action brought by the vendor for the price (z). 
 But if the sale is conditional upon the warranty being ful- 
 filled, then the purchaser may, upon breach, return the arti- 
 cle and recover the price, notwithstanding that some accident 
 may have happened to the article in the meanwhile, provided 
 always that there has been no negligence on his part ; he 
 cannot, however, return it, or recover damages, when the 
 time over [205] which the warranty was to be in force was 
 limited by the conditions and expired before he discovered 
 the breach (a). On a sale of specific goods by sample (d), 
 with a guaranty that they are similar to sample, the pur- 
 chaser has no right to return them on discovering defects, 
 but must sue on the breach of warranty (c) ; but he is entitled 
 
 endale, 9 Ex. 341; 23 L.J. Ex. 179; Ex.256; Stevens k. Legh, 2 C.L.R. 251. 
 
 Hydraulic Engineering Co. v. McHaffie, (0) Street v. Blay, 2 B. & Ad. 456, 
 
 4 Q.B.D. 670. On a sale of shares the 462 ; Lord Kennedy v. Panama &c. 
 
 purchaser cannot recover damages in Mail Co., L.R. 2 Q.B. 580, 587; anie^ 
 
 respect of any further advance in price p. 191 ; Couston v. Chapman, L.R. 2 
 
 taking place after the day on which the H.L. Sc. 250, 254. 
 
 sale ought to have been completed : (tz) Bannermann v. White, 10 C.B. 
 
 Shaw 1: Holland, 15 M. & W. 136; N.S. 844; 31 L.J.C.P. 28; Bywater v. 
 
 Tempest v. Kilner, 3 C.B. 253. Richardson, i A. & E. 508; Head v. 
 
 {x) See 19 & 20 Vict. c. 97 (Mer- Tattersall, L.R. 7 Ex. 7; 41 L.J. Ex.4; 
 cantile Law Amendment Act, 1856), s. Buchanan v. Parnshaw, ? T.R. 745, 
 2. See also iznie, p. 201, as to specific where it was held that a condition pro- 
 performance of a contract for the sale viding that a horse, warranted sound 
 of goods. [2 Chitty on Contracts, nth and six years old, should be deemed 
 Am. Ed., 1425 ei seq., and cases cited sound, unless returned within two days, 
 in American notes.] appliedonlytothewarrantyof soundness, 
 
 (_)') Aliter, where the purchaser has and did not limit the warranty as to age. 
 
 been induced to enter into the contract (/') See ante, p. 118. 
 
 by means of a fraudulent warranty : (c) Heyworth v. Hutchinson, L.R. 
 
 Murray v. Mann, 2 Ex. 538; 17 L.J. 2 Q.B. 447; 36 L.J.Q.B. 720. But he 
 
 237 
 
*206 ENFORCING THE CONTRACT. [PART I. 
 
 to inspect the goods in order to ascertain whether they are 
 the goods he bargained for, unless he has already had an 
 opportunity of inspecting them and it was part of the con- 
 tract that they were to be taken without further examina- 
 tion (d). And if the sale is conditional upon the goods being 
 equal to sample, the purchaser has a right to reject them, if, 
 after examining them without unreasonable delay, he finds 
 them not conformable to sample ; and he is not bound to 
 return them, or even to place them in neutral custody, so 
 long as he gives notice to the vendor of his refusal to accept 
 them ((?). Where the article sold is not specific or ascertained, 
 or if something remains to be done to it by the seller, the 
 purchase may return it as soon as he discovers the breach, 
 provided that [206] he has done nothing more in the mean- 
 time than was necessary to give it a fair trial (_/). 
 
 Damages for Breach of Warranty. — The damages recoverable 
 for breach of warranty must be so far the natural consequence 
 of the breach that they must have been in the minds of both 
 the contracting parties at the time of the contract. Where 
 the defendant sold a cow to the plaintiff, a farmer, with a 
 warranty that she was free from foot-and-mouth disease, and 
 the cow, which had the disease, was placed with other cows, 
 some of which, becoming infected with the disease, died, as 
 did also the cow sold, it was held that the defendant was 
 liable for the entire loss, as he knew the plaintiff to be a far- 
 would have a right to return them, if refused to accept this offer. Held, that 
 they were different from the sample in he had no remedy against the vendor, 
 kind, and not only in quality : Azemar v. in the absence of any fraud or express 
 Casella, L.R. 2C.P. 677; 36L.J.C.P. 263. warranty: Swett z.. Colgate, 20 Johns. 
 
 (</) Lorymer v. Smith, I B. & C. I ; (N.Y.) 196.] 
 2 D. & R. 23; Isherwood J/. Whitmore, {/) Grimoldby v. Wells, L.R. 10 
 
 II M. & \V. 347. [An article sold at C.P. 391; 44 L.J.C.P. 203, dissenting 
 an auction was considered to be and from a dictum of Lord Chelmsford in 
 was described as being barilla, and was Couston v. Chapman, L.R. 2 PLL. Sc. 
 bought as such, the purchaser having 250, 254, to the effect that, under such 
 examined the article before the sale, circumstances, the purchaser ought to 
 Afterwards, upon using some of it, the return the goods or, on the vendor's 
 purchaser discovered that it was kelp, refusal to receive them, to place them 
 which, though greatly resembling ba- in neutral custody, 
 rilla, was of little or no value. He of- (/) Street v. Blay, 2 B. & Ad. 456, 
 
 fered to pay for what he had used, and 463; Heilbutt v. Hickson, L.R. 7 C.P. 
 to return the residue; but the vendor 438, 449; 41 L.J.C.P. 228. 
 
 238 
 
CHAP. X.] ENFORCING THE CONTRACT. 207* 
 
 mer and knew, or ought to have known, that the plaintiff 
 would probably place the cow with others {g). Again, where 
 seed sold turned out different from what it was warranted 
 to be, and a wrong crop came up, the purchaser was held 
 entitled to recover the difference in the value of the crop 
 as it was and as it ought to have been (Ji). 
 
 Parties to an Action. — Parol evidence is admissible "to 
 shew that one or both of the contracting parties were agents 
 for other persons, and acted as such agents in making the 
 contract, so as to give the benefit of the contract on the one 
 hand to, and charge with liability on the other, the unnamed 
 principals ; " ^ but not so as to release a party who has signed 
 the agreement [207] and been treated by the other party as 
 principal {i). But a principal cannot sue, if his name was 
 undisclosed at the time the contract was made, and his agent 
 was described or referred to in the contract in terms incon- 
 sistent with the idea of agency (7). And if a person has 
 contracted as agent for a named principal, as, where a pur- 
 chaser at a sale by auction signed the memorandum : " A. B. 
 
 (£) Smith V. Green, i C.P.D. 92; by A., evidence is admissible to show 
 
 45 L.J.C.P. 29. But if there had been that he acted as agent for B., provided 
 
 no warranty, the vendor would not have that the object of such evidence is to 
 
 been liable, even if he had known that charge B., and not to discharge A. See 
 
 the animal was infected, provided he Higgins v. Senior, 8 W. & W. 834, 844; 
 
 had done nothing amounting to mis- Reid v. Draper, 30 L.J. Ex. 268; 6 II. 
 
 representation or wilful concealment: & N. 813; Wake i^. Harrop, 31 L.J. 
 
 Ward V. Hobbs, 4 App. Cas. 13; 48 Ex. 451; Commins v. Scott, L.R. 20 
 
 L.J.Q.B. 281; [Kingsbury J). Taylor, 29 Eq. 11, 16; 44 L.J. Ch. 563, 564; Beer 
 
 Maine, 508;] see ante, p. 116. ii. London & Paris Hotel Co., L.R. 20 
 
 (/;) Randall v. Raper, E.B. & E. 84; Eq. 412, 427, where Malins, V.-C, says 
 
 27 L.J.Q.B. 266. [Bradley v. Rea, 14 that the vendor's name need not be dis- 
 
 AUen (Mass.) 20; Marsh v. Webber, closed till action brought. 
 16 Minne. 418.] The questions of the (J) Humble z/. Hunter, 12 Q.B. 310, 
 
 auctioneer's authority to warrant and where the agent was described as 
 
 his liability on a warranty have been "owner." [Weed v. Saratoga R.R. 
 
 already discussed, ante, p. 119. Co., 19 Wend. (N.Y.) 534.] 
 
 (;■) Thus, where a contract is signed 
 
 [' Eastern R.R. Co. v. Benedict, 5 Gray (Mass.) 561 ; Blakely v. Bennecke, 
 59 Mo. 193 ; Chandler v. Coe, 54 N.H. 561 ; Coleman v. First National Bank, 53 
 N.Y. 388; Taintor v. Prendergast, 3 Hill (N.Y.) 72; Weston v. McMillan, 42 
 Wise. 567; Washburn v. Fletcher, id. 152; Stowell a. Eldred, 39 Wise. 614. If 
 land has been sold by probate commissioners, and, in consequence of the failure 
 of the purchaser to comply with the terms of sale, is resold by order of the court, 
 the original owners as w«ll as the commissioners may sue for the loss upon the 
 resale : Hutton v. Williams, 35 Ala. 503.] 
 
*208 . ENFORCING THE CONTRACT. . [pART f. 
 
 for C. D.," he cannot himself sue as principal without giving 
 notice to the defendant, before action brought, that he is the 
 party really interested {k). In such a case specific perform- 
 ance will be refused him, if it appears that the use of the 
 name of the assumed principal was the inducement to the 
 other party to enter into the bargain (/). 
 
 In general, an agent who contracts in the name of, and 
 intending to bind, his principal only, has no right of action 
 upon the contract,' unless he has himself an interest in it (m). 
 Thus, where certain lands had been let by auction under con- 
 ditions at the head of which was : " By Messrs. E. & T., auc- 
 tioneers," and at the foot : "Approved by me, D. J.," it was 
 held that the auctioneers could not sue for use and occupa- 
 tion, as it appeared from the conditions that D, J. was the 
 party with whom the contract was made («). But [208] an 
 agent may sue, if the name of his principal was not disclosed, 
 unless the defendant contracted on the faith of his agency {o). 
 Where handbills were circulated as follows : " Oxford Races 
 The ground for booths &c. will be let by auction by Mr. 
 J. F," &c., and the conditions were headed : " Conditions for 
 
 (^k) Bickerton v. Burrell, 5 M, & .S. cedent will bind themselves personally 
 
 3S3. [Foster v. Smith, 2 Coldw. by their bond to give a fee-simple title 
 
 (Tenn.) 474.] to the land, if, in consequence of ex- 
 
 (/) Phillips V. Duke of Buckingham, ceeding their authority, they fail to bind 
 
 I Vern. 227; Dart, 185. the decedent's estate : Whiteside 'j. 
 
 (w/) Add. Con. 38. [Seller 7'. Block, Jennings, 19 Ala. 784.] 
 19 Ark. 566; Graham v. Duckwall, 8 (k) Evans v. Evans, 3 A. & E. 132. 
 
 Bush (Ky.) 12; Murray v. Toland, 3 (o) Schmalz v. .Vvery, 15 Jur. 291; 
 
 Johns. Ch. (N.Y.) 569; Toland v. Mur- see notes to Thomson v. Davenport, 2 
 
 ray, 18 Johns. (N.Y.) 24; Ladd v. Sm. L.C. 364. [Groover v. Warfield, 
 
 Arkell, 5 Jones & Sp. (N.Y.) 35 ; Min- 50 Ga. 644; Saladin v. Mitchell, 45 
 
 turn V. Main, 7 N.Y. 220; Bogart v. Ills. 79; Brewster v. Saul, 8 La. 296; 
 
 O'Regan, i E. D. Smith (N.Y.) 590 ; Huntington v. Knox, 7 Gush, (ilass.) 
 
 Hulse z/. Young, 16 Johns. (N.Y.) i; 371; Chandler v. Coe, 54 N.H. 561; 
 
 Whitehead v. Potter, 4 Ired. Law (Nor. Taintor v. Prendergast, 3 Hill (N.Y.) 72 ; 
 
 Car.) 257. Commissioners appointed INIerrick's Estate, 8 Watts & S. (Penn.) 
 
 by court to sell the real estate of a de- 402; Culver v. Bigelow, 43 Vt. 249.] 
 
 [' Dugen V. United States, 3 Wheaton, 172; Garland v. Reynolds, 20 Maine, 
 45; Irish V. Webster, 5 Maine, 171; Bainbridge v. Downie, 6 Mass. 253; Kent 
 V. Bornstein, 12 Allen (Mass.) 342; White v. Bennett, i Mo. 102; Gunn v. 
 Cantine,io Johns. (N.Y.) 387; Taintor !<. Prendergast, 3 Hill (N.Y.) 72; Oakey 
 V. Bend, 3 Edwards Ch. (N.Y.) 482; Whitehead v. Potter, 4 Ired. Law (Nor. 
 Car.) 257; Jones v. Hart, i Hen. & Munf. (Va.) 471.] 
 
 240 
 
CHAP. X.] ENFORCING THE CONTRACT. 2O9* 
 
 letting the standings, &c. ... By Mr. J. F.," &c., it was 
 held that, there being no named principal, there was evidence 
 on which tlie jury might find that the contract was made with 
 the auctioneer, and that he might sue for the use and occu- 
 pation of land let at the auction, although he acted by 
 direction of a race-committee who were permitted by the 
 owners of the land to hold the races (/). 
 
 If the agent contracts as agent only, he is not liable on 
 the contract {q), even though words are used which, taken 
 alone, might render him so ; ^ provided that the instrument 
 evinces an intention that he shall not be liable. Where 
 A., an auctioneer, employed by B. to sell an estate, entered 
 into an agreement for the sale with C, in which he was de- 
 scribed as B.'s agent, but which he signed in his own name 
 without any qualification, and B. subsequently signed the con- 
 tract, adding the words : " I hereby sanction this agreement 
 and approve of A.'s having signed it on my behalf," A. was 
 held not liable (;'). But a party who, though really an agent, 
 contracts personally, will be liable upon the contract, whether 
 his principal was disclosed or not {s). Where catalogues [209] 
 stated that H. and E., the defendants, would, on a named 
 day, sell by auction certain unclaimed property, by order of 
 the directors of the Great Western Railway Company, and 
 there was a condition that : " If any deficiency shall arise, 
 or from any cause the auctioneers shall be unable to deliver 
 
 {p) Fisher «<. Marsh, 6 B.&S. 411 ; (j) Higgins z/. Senior, 8 M. & W. 
 
 34 L.J.Q.B. 177. [Freeman v. Hus- 834, 844; Franklyn z-. Lamond, 4 C.B. 
 
 band, 77 Penn. St. 389.] 637; 16 L.J.C.P. 221; 11 Jur. 780; 
 
 {q) Southwell v. Bowditch, i C.P.D. and see Long v. Millar, 4 C.P.D. 450; 
 
 374, where the defendant, a broker, 48 L.J.Q.B. 596. [Dobson v. Jordan, 
 
 who had signed a contract note in the 124 Mass. 542; Simonds v. Heard, 23 
 
 following terms: — "I have this day Pick. 1 20; Kirkpatrick v. Stainer, 22 
 
 sold by your order, and for your ac- Wend. (N.Y.) 244, 255; Chappell v. 
 
 count, to ray principals," &c., was held Dann, 21 Barb. (N.Y.) 17. The princi- 
 
 to have signed as agent only ; Gadd v. pal's rights against the agent will not be 
 
 Houghton, I Ex. D. 357. affected by the non-disclosure of the 
 
 (r) Spittle V. Lavender, 2 B. & B. agency : Lyon v. Elliott, 3 Ala. 654.] 
 452; 5 Moore, C.P. 270. 
 
 [' It is a question of the understanding and intention of the parties : Worth- 
 ington V. Cowles, 112 Mass. 30; Pratt v. Beaupre, 13 Minne. 187; Foster v. 
 Persch, 68 N.Y. 400; Meeker v. Claghorn, 44 N.Y. 349, 352; Mauri v. Hefferman, 
 13 Johns. (N.Y.) 58.] 
 
 241 
 
*2I0 ENFORCING THE CONTRACT. [PART I. 
 
 any lot or portion of a lot, then, in such case, the purchaser 
 shall accept compensation," the condition was held to be 
 evidence on which a jury were justified in finding that the 
 auctioneers had contracted personally with a purchaser for 
 the delivery to him of the goods purchased by him (t). Again, 
 where A. became the purchaser of premises sold by auction, 
 and immediately afterwards, in B.'s presence, declared him- 
 self the agent of B. and asked to have the contract drawn up 
 in B.'s name, but, on this being refused, subsequently signed 
 it himself, he was held personally liable on the contract, it 
 not having been understood between him and the vendor that 
 he was only acting as agent for B. (zt). The case of William- 
 son V. Barton (v) illustrates the difficulty which frequently 
 arises in determining whether or not it was the intention of 
 the parties that the agent should bind himself. There, at an 
 auction-sale of W.'s farming stock, some hay was knocked 
 down to B., who, in reply to the auctioneer, gave his name 
 as B. The auctioneer, believing that B. was buying for 
 himself, wrote' his name in the sale-book as buyer and sent 
 the account to him. B. was the servant of S. and bid as his 
 agent, and the hay was subsequently removed in S.'s carts. 
 W. was present at the sale and heard what passed and knew 
 [210] that B. was servant to S. and knew, or might have 
 known, that he was bidding for S., and not for himself; but 
 he did not interfere in the transaction. In an action by W. 
 against B. for the price, the jury having found a verdict for 
 the defendant, on motion for a new trial the court was equally 
 divided in opinion, Pollock, C.B., and Bramwell, B., holding 
 that there was evidence from which the jury might infer that 
 no contract had been entered into between the plaintiff and 
 the defendant, the latter judge holding further that W., by 
 delivering the goods to S., had discharged B. from liability, 
 if he was ever bound. On the other hand, Channell and 
 Wilde, BB., held that there ought to be a new trial, that a 
 party bidding at an auction and giving his own name simply 
 to the auctioneer must be understood to be the contracting 
 
 (/) Woolfe V. Home, 2 Q.B.D. (v) 7 H. & N. 899 ; 2 F. & F. 544; 
 
 355; 46 L.J.Q.B. 536. 31 L.J. Ex. 170; 8 Jur. N.S. 341. 
 
 (a) Chadwick v. Maden, 9 Hare, 188. 
 
 242 
 
CHAP. X.] ENFORCING THE CONTRACT. 211* 
 
 party, and that, if he is bidding only as agent, he ought to 
 say so. 
 
 If the principal has been guilty of any wrong-doing in the 
 transaction, the agent who has been party to the wrong-doing 
 is equally liable with him, though, if he was an innocent 
 party, he can recover over from his principal (w). Where a 
 person contracts as agent for another, when he has in fact 
 no authority to do so, he is not liable on the contract ; but 
 he may be liable for a false representation {x). 
 
 Auctioneer on Sale of Land. — The position of an auction- 
 eer differs, in some respects, from that of an ordinary agent, i 
 Where the subject of sale is land, it has been said that, by 
 reason of his right to bring [211] an action, and of his lia- 
 bility to account, for the deposit, he can be made a co-plain- 
 tiff with the vendor in an action for specific performance {y) ; 
 and he is not unfrequently made a co-defendant in such an 
 action (z). He can sue in his own name upon an I. O. U. 
 that has been given to him in payment of the deposit {a). 
 
 (w) Adamson v. Jarvis, 4 Bing. 66; (jr) Jenkins v. Hutchinson, 13 Q.B. 
 
 12 Moore, 241; Attorney-General v. 744; Lewis z^. Nicholson, 18 Q.B. 503; 
 
 Ray, L.R. 9Ch. 397,405; 43 L.J. Ch. 21 L.J.Q.B. 311; CoUen v. Wright, 7 
 
 478; Dugdale v. Lovering, L.R. 10 E. & B. 301 ; 27 L.J.Q.B. 215; and see 
 
 C.P. 196; 44 L.J.C.P. 197; Heatley v. Godwin v. Francis, L.R. 5 C.P, 295, for 
 
 Newton, 30 W.R. 72; 45 L.T.N.S. 455. measure of damages in such a case. 
 
 [Moore !<. Appleton, 26 Ala. 633 ; Long [In White z/. Madison, 26 N.Y. 117, it 
 
 ■V. Neville, 36 Calif. 455; Nelson v. is held that the liability of the agent in 
 
 Cook, 17 Ills. 443; Tarr v. Northy, 17 such a case rests upon the ground that 
 
 Maine, 113; Drummondz'. Humphreys, he warrants his authority : see Story on 
 
 39 Maine, 347; Greene v. Goddard, 9 Agency, § 264 a, and cases there cited; 
 
 Met. (Mass.) 212; Howard v. Clark, Bigelow's Leading Cases on Torts, 22 
 
 43 Mo. 344; Yeatman v. Corder, 38 «/ j;?., and cases there cited.] 
 
 Mo. 337; Howe V. Buffalo R.R. Co., {y) Fry, in, referring to Dan. Ch. 
 
 37 N.Y. 297; Chamberlain v. Beller, 18 Pr. 176. 
 
 N.Y. 115; Powell V. Newburgh, 19 (z) See aw^f, pp. 182, 183. 
 
 Johns. (N.Y.) 284; Commonwealth v. (a) Cleave v. Moors, 3 Jur. N.S. 
 
 Van Dyke, 57 Penn. St. 34; Saveland 48. [Thompson v. Kelly, loi Mass. 
 
 !<. Green, 36 Wise. 612; Grace z/. Mitch- 291.] 
 ell, 31 Wise. 533.] 
 
 [' As to the authority of a person appointed by a court to sell land, or of the 
 owners of any interest in the land, to receive payment of the price thereof, see 
 Carrington v. Herrin, 4 Bush (Ky.) 624; Perrin v. Keithley, 9 Gill (Md.) 412; 
 State V. Belt, 7 Gill & J. (Md.) 444; Welsh v. Freeman, 21 Ohio St. 402; Smith 
 V. Brown, 5 Rich. Eq. (So. Car.) 291 ; Walker v. Walker, 4 Coldw. (Tenn.) 300; 
 Lloyd V. Erwin, 29 Gratt. (Va.) 598.] 
 
 243 
 
*2II ENFORCING THE CONTRACT. [PART I. 
 
 On Sale of Goods. — On a sale of goods the auctioneer can, 
 by virtue of his special property in the subject of sale, bring 
 an action for the price in his own name, although he con- 
 tracted as agent only (b), provided that his principal could 
 have maintained the action. If his principal is proved not 
 to have been the true owner, the auctioneer cannot sue the 
 purchaser, even though the latter expressly promised to pay 
 on being allowed to remove the goods (c). Nor can the auc- 
 tioneer sue the purchaser, when he has acted as agent to 
 bind the latter within the Statute of Frauds {d). 
 
 (6) Robinson t. Rutter, 4 E. & B. of the vendor has been disclosed : see 
 
 954; 24 L. J.Q.B. 250; I Jur. N.S. 833 
 cf. Holmes &. Tutton, 5 E. & B. 65 
 24 L.J.Q.B. 346; I Jur. N.S. 975 
 
 the observations of Field, J., in V^^oolfe 
 V. Home, 2 Q.B.D. 355, 360; 46 L.J. 
 Q.B. 536. 
 
 Mills V. Hunt, 20 Wend. 431 ; and see (c) Dickenson v. Naul, 4 B. & Ad. 
 
 an/f, p. 113. And it would appear that 638; I N. & M. 721 ; cf. Allen v. Hop- 
 the purchaser has a correlative right to kins, 13 M. & W. 94, 102. 
 sue the auctioneer, even where the name (i/) See o«/^, p. 157. 
 
 244 
 
CHAP. XI.J INTERPLEADER. 212-213* 
 
 [212] 
 
 CHAPTER XL 
 
 INTERPLEADER. 
 
 Auctioneer's Right to. — A stakeholder from whom several 
 persons claim the same goods or sum of money — for in- 
 stance, an auctioneer of whom both the vendor and the pur- 
 chaser demand deposit-money which he holds as stakeholder 
 — can compel the rival claimants to interplead, i 
 
 This formerly he could only do by means of the tedious 
 and expensive process of a suit in equity ; but now all the 
 divisions of the High Court of Justice have jurisdiction in 
 interpleader {a). 
 
 The present law and practice relating to interpleader de- 
 pend chiefly upon the Interpleader Act {b), the Common 
 Law Procedure Act, i860 {c), and the Judicature Acts and 
 Rules. 
 
 Interpleader Act. — The Interpleader Act enacts that, upon 
 application by a defendant sued in a superior court of law in 
 any action of assumpsit, debt, detinue or trover, such applica- 
 tion being made after declaration and before plea, by affida- 
 vit, or otherwise, shewing that the defendant does not claim 
 any interest in the subject-matter of the suit, but that the 
 right to it is [213] claimed (by) or supposed to belong to a 
 third party, who has sued or is expected to sue for it, and 
 that the defendant does not collude with the third party, but 
 is ready to bring the subject-matter of the action into court, 
 or to deal with it as the court or a judge may direct, the 
 
 {a) Rules of the Supreme Court, {b) i & 2 Will. IV., c. 58. 
 
 O.I., r. 2. (c) 23 & 24 Vict., c. 126. 
 
 [' If the parties make adverse claims to the deposit that has been given to an 
 auctioneer for goods sold by him, the auctioneer, being as stakeholder an agent 
 for both parties, may bring his bill in equity to compel them to interplead. And 
 if one of the parties has brought suit against the auctioneer for the deposit, the 
 fact that this action could not be maintained will not prevent him from maintain- 
 ing his bill of interpleader : Bleeker v. Graham, 2 Edwards Ch. (N.Y.) 647.] 
 
 245 
 
*2I4 INTERPLEADER. [PART I. 
 
 court or a judge may order the third party to appear and 
 maintain or relinquish his claim and may in the meantime 
 stay proceedings in the action id). If the third party does 
 not appear, the court or judge can bar his claim against the 
 defendant and make such order between the defendant and 
 the plaintiff as to costs and other matters as may appear 
 just {e). If he does appear, the court or judge can order him 
 to make himself defendant in the same or some other action ; 
 or may direct the trial of an issue, or issues ; or, by consent, 
 may decide upon the claims in a summary manner (_/"). 
 
 Common Law Procedure Act, 1860. — In consequence of cer- 
 tain decisions tending to narrow the operation of the Inter- 
 pleader Act {g), it was enacted by the Common Law Proce- 
 dure Act, i860 (/?), that, where an action has been commenced 
 in respect of a common law claim for the recovery of money 
 or goods, and the defendant has applied for relief under the 
 Interpleader Act, the court or a judge may grant relief by 
 way of interpleader, though the titles of the claimants to the 
 money or goods in question have not a common origin, but 
 are adverse to and independent of one another (z). 
 
 [214] Judicature Acts. — The Rules of the Supreme Court {k) 
 now provide that " with respect to interpleader the procedure 
 and practice now used by courts of common law under the 
 Interpleader Acts, i & 2 Will. IV. c. 58, and 23 & 24 Vict. c. 
 126 (/), shall apply to all actions . . . and the application by a 
 defendant shall be made at any time after being served with 
 a writ of summons and before delivering a defence." 
 
 As to Interpleader before Action Brought. — Before the Judi- 
 cature Acts the Court of Chancery granted relief by way of 
 interpleader to a stakeholder who was not being actually 
 
 (rf) S. I . in dispute is small, to decide summarily 
 
 {i) S. 3. at the request of either party. By s. 
 
 (/) S. I. As to the form of issues, 15, where the question is one of law, 
 
 see now 8 & 9 Vict., c. 109, s. 19. and the facts are not in dispute, the 
 
 (f) See Attenborough v. St. Katha- judge may decide it summarily, and, if 
 
 fine's Dock Co., 3 C.P.D. 450, 457; he thinks it desirable, order that a spe- 
 
 47 L.J.C.P. 763 ; 38 L.T. 404; 26 cial case be stated. As to the right to 
 
 W.R. 583. appeal, see Wilson, Jud. Acts, 2d ed., 
 
 (/;) S. 12. 130. 
 
 (j) S. 14 of the act gives power to (Ji) O. I., r. 2. 
 
 the court or a judge, where the amount (/) The C.L.P.A. i860. 
 
 246 
 
CHAP. XI. J INTERPLEADER. 21$* 
 
 sued (m). Whether the jurisdiction to do this has been 
 superseded by the new system of procedure, or is now vested 
 in the High Court of Justice, remains to be seen. The bet- 
 ter opinion appears to be that it still exists («). It is true 
 that the order of which the above cited rule forms part is 
 intituled " Form and Commencement of Action ; " but, on 
 the other hand, the old jurisdiction in interpleader is nowhere 
 expressly abolished, the jurisdiction of the old Court of Chan- 
 cery is, subject to the new legislation, transferred to the High 
 Court of Justice (p), and s. 25, sub-s. 6, of the Judicature Act, 
 1873, allows interpleader at the instance of a person liable in 
 respect of a debt or chose in action who merely has notice of 
 opposing claims (/). 
 
 Rules Regulating Interpleader. — The courts of equity made 
 the granting of relief by [215] interpleader subject to a 
 variety of conditions of which no mention is to be found in 
 the Interpleader Acts (q). The courts of common law, in 
 interpreting the Interpleader Acts, professed to observe the 
 general principles, while declining to be bound by the minute 
 rules of practice, adopted by the courts of equity (r). Owing 
 to the difficulty, in many cases, of determining where princi- 
 ple ends, and where practice begins, it is impossible, in the 
 present state of the authorities, to say with certainty when 
 interpleader will be granted, and when it will be refused. 
 The following observations are intended to convey the effect 
 of the leading decisions upon the question, so far as it is more 
 intimately connected with the subject-matter of this book. 
 
 I. Before a stakeholder will be entitled to interpleader, 
 the property in respect of which he applies for it must be 
 actually {£) and adversely (/) claimed from him. A mere pre- 
 
 (m) Jones v. Thomas, 2 Sm. & G. I & 2 Will. IV., c. 58, s. 6, and i & 2 
 
 186; Mealor v. Earl Talbot, 27 L.J. Vict., i;. 45, s. 2, as to sheriff's inter- 
 
 Ch. 165. pleader. 
 
 («) See Wilson's Jud. Acts, 2d (y) See Cabab6 on Interpleader, 
 
 ed., 129; Seton, 361 et seq. ; cf. Ham- passim. 
 
 lyn V. Betteley, 6 Q.B.D. 63; 50 (/) See Best v. Hayes, i H. & C. 
 
 L.J.Q.B. I. 718; 3 F. & F. 113; 32 L.J.C.P. 129. 
 
 (0) Jud. Act, 1873, s. 16. (J) Isaac v. Spilsbury, 3 M. & S. 
 
 (/) See In re New Hamburg & 341 ; 10 Bing. 3; Bentley v. Hook, 2 
 
 Brazilian Railway Co., W.N. 1875, 239; C. & M. 426; 4 Tyr. 229. 
 
 Lacey v. Wieland, W.N. 1876, 24; cf. (/) Glynn v. Locke, 3 D. & W. 11 ; 
 
 247 
 
*2l6 INTERPLEADER. [PART I. 
 
 text of a conflicting claim is not enough {ic) ; nor is a mere 
 refusal to assent to the payment of the fund to another 
 claimant {x). Interpleader was refused an auctioneer, where, 
 a dispute having arisen upon the contract, the vendor sued 
 the auctioneer for the deposit, but the purchaser insisted on 
 his right to have the contract performed {y). A notice to 
 the auctioneer, that, if he pays over the deposit, he will do 
 so at his own risk, appears, [216] however, to be a sufficient 
 claim {z). If a bond fide claim has been made, the applicant 
 is not bound to shew that it has a substantial foundation {a). 
 Nor is it necessary that the claims should be coextensive {b) ; 
 nevertheless, single proceedings in interpleader will not lie 
 against the claimants to two separate independent funds : a 
 bill of interpleader filed against A., B. and C. by an auction- 
 eer who, having sold A.'s property to B., and resold it, for A., 
 to C, had received a deposit from each of the two purchasers 
 was dismissed with costs as against C. {c). 
 
 2. An applicant for interpleader must at the time of his 
 application be willing and able to bring the property claimed 
 into court, or to dispose of it as the court shall direct {d). A 
 stakeholder who has parted with the property is not entitled 
 to interpleader upon undertaking to pay over the value to the 
 party entitled (f). 
 
 3. Although the applicant must not himself claim any 
 interest in the property in respect of which he applies, the 
 
 Holmes v. Mentze, 5 N. & M. 563; 4 Angellz/. Hadden, 15 Ves. 244. [Bleeker 
 
 A. &. E. 1 27. The Interpleader Act is tj. Graham, 2 Edwards Ch. (N.Y.) 647.] 
 
 intituled " An act to enable courts of It has been held that, if the applicant 
 
 law to give relief against adverse claims may be liable to both parties, he cannot 
 
 made upon persons having no interest interplead : Farr v. Ward, 2 M. & W. 
 
 in the subject of such claims." 844; M. & H. 244. 
 
 (m) Cochrane v. O'Brien, 2 J. & L. (Ji) Attenborough v. St. Katharine's 
 
 380. Dock Co., 3 C.P.D. 450; 47 L.J.C.P. 
 
 {x) Desborough v. Hanis, 5 De G. 763; 38L.T.404; 26W.R.583; Wright 
 
 M. & G. 439, 459. z'. Freeman, 48 L.J.C.P. 276; 40L.T. 134. 
 
 0') Sharpe v. Redman, Will. WoU. {/) Hoggart v. Cutts, Cr. & Ph. 197. 
 
 & D. 375; cf. Harrison v. Payne, 2 (a?) Anderson w. Calloway, i C. & M. 
 
 Hodg. 107. 182; Braine -u. Hunt, 2 C. & M. 418; 
 
 (z) Hoggart tj. Cutts, Cr. & Ph. 197; 4 Tyr. 243; -> Dowl. P.C. 391 ; Scott v. 
 
 cf. In re New Hamburg & Brazilian Lewis, 2 CM. & R. 289; Holton v. 
 
 Railway Co., W.N. 1875, 239. Guntrip, 3 M. & W. 145; Inland z/. 
 
 (a) East & West India Dock Com- Bushell, 5 Dowl. P.C. 147. 
 
 pany v. Littledale, 7 Hare, 57, 60; (e) Burnett z/. Anderson, I Mer. 405. 
 
 248 
 
CHAP. XI.] 
 
 INTERPLEADER. 
 
 217* 
 
 fact that he claims a lien upon the deposit as against the 
 vendor will not deprive an auctioneer of his right to inter- 
 pleader, if his claim of a lien is allowed by the purchaser {f) ; 
 and perhaps not in any case {g). 
 
 [217] 4. The applicant must be free from even the sus- 
 picion of colluding with a claimant (/z). An auctioneer who 
 had taken an indemnity from a claimant was held to have so 
 far identified himself with him as to be disentitled to relief 
 under the Interpleader Act {{). 
 
 The .application by a defendant is made at chambers, by 
 summons calling upon the claimant to appear and state his 
 claim {k) ; a master (/) or district registrar [in) has jurisdic- 
 tion («), but a registrar of the Probate, Divorce and Admiralty 
 Division has not, except in matters of practice, unless by 
 consent {o). 
 
 The costs of the applicant, where he has acted bond fide, 
 will, as a rule, in the first instance be directed to be paid 
 out of the fund in dispute, to be repaid by the party ulti- 
 mately unsuccessful (/). A stakeholder litigating the claims 
 
 (J) Best V. Hayes, i H. & C. 718; 
 3r.&F. 113; 32 L.J.C.P. 129. 
 
 (^) Annesley v. Muggridge, i Madd. 
 593 ; cf. Farebrother v. Frattent, 5 
 Price, 303; Colter v. Bank of England, 
 3 Moo. & S. 180; 2 Dowl. 728; Jacob- 
 son w. Blackhurst, 2 J. & H . 486 ; Atten- 
 borough V. St. Katharine's Dock Co., 
 3 C.P.D. 450, 454; 47 L.J.C.P. 763; 
 38 L.T. 404 ; 26 W.R. 583; but see 
 Mitchell V. Hayne, 2 S. & S. 63; Brad- 
 dick ». Smith, 2 Moo. & S. 131 ; 9 Bing. 
 84; Diplock V. Hamond, 2 Sm. & G. 
 141. 
 
 {&) Belcher v. Smith, 9 Bing. 82; 
 2 Moo. & S. 184. 
 
 (£) Tucker v. Morris, I Cr. & M. 
 73; I Dowl. P.C. 639. A stakeholder 
 is not bound to accept an indemnity 
 from a claimant, although the latter 
 
 (m) lb., O. XXXV., r. 4. 
 («) " Except where all parties con- 
 cerned consent to a final determination 
 of the question in dispute without a jury 
 or special case, and except where the 
 sum in dispute is less than ;^50, and 
 one of the parties desires such a deter- 
 mination; in such cases the question 
 shall be determined by the judge, unless 
 the parties agree to refer it to the mas- 
 ter;" R.S.C., November, 1878, r. 4 
 (R.S.C., 0. LIV., r. 2 b.). 
 (0) R.S.C., O. LIV., r. 2. 
 (/) Reeves v. Barraud, 7 Sco. 281; 
 and see Fairbrother v. Nerot, Dan. 68, 
 n.; Campbell v. Solomons, I S. & S. 
 462; Pitchers v. Edney (183S), 4 Bing. 
 N.C. 721, where the costs of the auc- 
 tioneer were allowed out of the deposit, 
 and the purchaser was left to his remedy 
 shows an apparent title to the property over against the vendor, although the 
 in dispute: East & West India Dock latter was insolvent; but cf. Deller v. 
 Company t). Littledale, 7 Hare, 57; but Prickett (1850), 15 Q.B. 1081; 20 
 see Gladstone v. White, i Hodg. 386. L.J.Q.B. 151, where, the vendor having 
 (/5) Wilson, Jud. Acts, 2d ed., 129. no other property than the real estate 
 (/) R.S.C., O. LIV., rr. 2, 2 b. sold, the title to which was alleged to 
 
 249 
 
^2l8 
 
 INTERPLEADER. 
 
 [part I. 
 
 [218] separately will have to bear the costs of the successful 
 party {q). 
 
 A stakeholder may pay money into court under the Trustee 
 Relief Act (r) ; and a defendant in an action has now a remedy 
 analogous to interpleader in cases where interpleader would 
 not strictly lie (s). 
 
 be defective, the auctioneer, claiming 
 interpleader, when sued for the deposit 
 by the purchaser, was subjected to the 
 condition of giving security for costs, 
 and was not allowed his costs of the ap- 
 plication out of the deposit-money: 
 Aplin V. Gates, 30 L.J. Ch. 6. 
 
 (7) Laing ». Zeden, L.R.gCh. 736; 
 
 43 L.J. Ch. 626. See also Seton, 358; 
 Attenborough v. St. Katharine's Dock 
 Co., 3 C.P.D. 450, 466. 
 
 (r) In re United Kingdom Life 
 Assurance Co., 34 L.J. Ch. 554. 
 
 (j) Rules of the Supreme Court, O. 
 XVI., r. 17; see Tebbs v. Lewis, W.N. 
 1875, 204. 
 
 250 
 
CHAP. XH.] THE auctioneer's COMMISSION, ETC. 219-22O* 
 
 [219] 
 CHAPTER XII. 
 
 THE auctioneer's COMMISSION AND RIGHT TO INDEMNITY. 
 
 Auctioneer's Commission. — An auctioneer employed to 
 conduct a sale is, in general, entitled to be remunerated for 
 his trouble and to be indemnified for any loss that he may 
 have incurred in the proper discharge of his duty {a). The 
 amount of his remuneration, which generally takes the form 
 of a commission, is fixed, sometimes by statute,^ but more 
 commonly by contract or by custom. 
 
 The only cases in which an auctioneer's charges are regu- 
 lated by statute are the cases of sales under distraints for 
 rent {b) or for " land tax, assessed taxes, poor's rates, church 
 rates, tithes, highways rates, sewer rates, or any other rates, 
 taxes, impositions or assessments whatever" (<:), where the sum 
 demanded and due does not exceed ;^20 {d) ; sales of goods 
 taken under executions, issued by county [220] courts {e) ; 
 
 («) As to the effect, in this connec- (r) 7 & 8 Geo. IV., c. 17. 
 
 tion, of his being unlicensed, see ante, (d) The statute 57 Geo. III., c. 93, 
 
 p. 9. [An auctioneer who has by the has been held not to apply to the case 
 
 terms of his employment the right to of a distress for more than ;,;^20, though 
 
 detain his commission out of the price made upon goods appraised at, and sold 
 
 of goods paid to him cannot in Massa- for, less than ;£'20 : Child v. Chamber- 
 
 chusetts be convicted of embezzlement lain, 5 B. & Ad. 1049; 3 N. & M. 520; 
 
 for converting the whole amount to his and the same principle would seem to 
 
 own use, because he has the right to hold good with respect to cases under 
 
 throw the whole money in common with 7 & 8 Geo. IV., c. 17. 
 his own, and it cannot be regarded as (e) 9 & 10 Vict., c. 95 (County 
 
 the money of another: Commonwealth Courts Act, 1846), s. 106; 19 & 20 
 
 V. Stearns, 2 Met. (Mass.) 343. But Vict., c. 108 (County Courts Act, 1856), 
 
 this doctrine has not been universally Schedule C. [See, as to the fees of an 
 
 accepted. See 2 Bishop on Criminal auctioneer for selling property in a prize 
 
 Law (7th Ed.), § 370 ; i Wharton, case, The Amy Warwick, 2 Sprague, 
 
 Crini. Law (8th Ed.), § 1016.] 160; The Tubal Cain, Blatchford's Prize 
 
 {i) 57 Geo. III., c. 93, s. I. See Cases, 347.] 
 J>osi, p. 281. 
 
 [' See Macarty's Succession, 32 La. Ann. 6; Carpenter v. Le Count, 22 Hun 
 (N.Y.) 106; Russell v. Miner, 5 Lans. (N.Y.) 537; s.c, 61 Barb. (N.Y.) 534.] 
 
 251 
 
*22I THE auctioneer's COMMISSION [PART I. 
 
 and sales of goods and estates in bankruptcy (/). Scales of 
 the charges authorized in these cases will be found in Part 
 II., post {g). No amount is fixed, either by statute or by 
 general order, for sales by direction of the court. 
 
 The amount, when not fixed by statute, should always be 
 settled by previous agreement between the auctioneer and 
 his employer. Usually it consists of a certain percentage 
 upon the purchase-money, which may or may not include the 
 expenses of advertising &c. {li). Where it is agreed between 
 an agent and his principal that the former shall be paid com- 
 mission at a fixed rate, and the agent claims a further remune- 
 ration on account of extra work, it will be for a jury to say 
 whether, or not, in doing the extra work, the agent was 
 merely performing a duty contemplated by the agreement ; 
 and if they find that this was the case, he will not be entitled 
 to make any additional charge (i). 
 
 Where there is no special agreement, the auctioneer is en- 
 titled to a reasonable remuneration for his services, and, as a 
 rule, it will be left to the jury to say whether the amount 
 usually charged in the trade is reasonable or not {J). If the 
 employer was aware of the customary charge, he will, [221] in 
 general, be bound by it Qi). Where a solicitor, without hav- 
 
 (/) Scale of costs and fees made !i5. 295; Stewart j;. Kahle, 3 Stark. 161 ; 
 January, 1870, under 32 & 33 Vict., c. Clark v. Smythies, 2 F. & F. 83. [Rob- 
 71 (The Bankruptcy Act, 1869). inson v. N.Y. Ins. Co., 2 Caines (N.Y.) 
 {£) /"orf, pp. 362-365. 357; Sinclair z/. Galland, 8 Daly (N.Y.) 
 (/;) [An auctioneer employed under 508; Glenn z/. Salter, 50 Ga. 170.] In 
 an agreement that he shall be paid the Maltby v. Christie, i Esp. 340 (decided 
 expenses of advertising the sale cannot in 1795), Lord Kenyon expressed an 
 charge the ordinary rates of advertising, opinion that a charge of 7.} per cent, on 
 if the printer has allowed him any dis- the price realized, exclusive of all ex- 
 count thereon, whether this was under penses of warehouse-room, catalogues, 
 a general agreement embracing all his &c., could only be claimed by private 
 advertising, or a special agreement re- agreement. [If an auctioneer makes 
 ferring to this particular advertisement, several sales of distinct lots for the same 
 It is the duty of the agent to procure owner, his right to a commission upon 
 the advertising on the best possilile each separate sale accrues upon the 
 terms for his principal : Union Refining completion thereof, unless he has agreed 
 Co. V. Pentecost, 79 Penn. St. 491.] with the owner for an entire sum as 
 (J) MarshalU'. Parsons, 9C. &P. 656. compensation for his whole service: 
 (/) Eicke V. Meyer, 3 Camp. 412; Robinson z;. Green, 3 Met. (Mass.) 159.] 
 Cohen v. Paget, 4 Camp. 96; Levi v. (i) Sugd. 45; cf. Rainy v. Vernon, 
 Barnes, Holt, 412; Roberts -'. Jackson, 9 C. & P. 559. [Ruckman f . Bergholz, 
 2 Stark. 225; Chapman v. De Tastet, 38 N.J. Law, 531.] 
 
 252 
 
CHAP. XII.J AND RIGHT TO INDEMNITY. 222* 
 
 ing made any previous arrangement as to the amount of 
 remuneration, employed an auctioneer to sell some property 
 for his client, and the auctioneer retained as commission a 
 larger sum than would have been allowed under the bank- 
 ruptcy scale, but not larger than the customary trade 
 charge (/), Lord Romilly, M.R., held, reversing the decision 
 of the taxing-master, who had merely allowed what was charge- 
 able under the bankruptcy scale, that the whole charge ought 
 to be allowed to the solicitor {m). In a subsequent case («), 
 however, the bankruptcy scale for an accountant and his 
 clerks was adopted in taking accounts in chambers. 
 
 Where Sale not Directly Effected by Auctioneer. — Where it 
 is agreed that the auctioneer shall be paid a certain commis- 
 sion, if the property be sold by him or by his intervention, 
 his right to such commission is not affected by the fact that 
 his employer has sold the property himself, and without the 
 direct intervention of the auctioneer, if the sale has been 
 really brought about through the instrumentality of the lat- 
 ter {o). For instance, where A., employed to sell an estate 
 for B., upon the terms of receiving £2 10s. per cent, commis- 
 sion on the amount realized, put up the estate at auction, but 
 failed to obtain a purchaser, and C, who had attended the 
 auction and first learned of the estate being for sale by see- 
 ing A.'s advertisement, [222] subsequently purchased it by 
 private contract from B., it was held that A. could recover 
 his commission (/). In another case, house agents, instructed 
 to sell a house on the terms of receiving a commission of 2|- 
 per cent, on the premium, if they found a purchaser, but one 
 
 (J) The charge included all expenses {o) See Wilkinson v. Martin, 8 C. & 
 
 and was computed at ;^5 per cent, up P. I. [Leete v. Norton, 43 Conn. 219; 
 
 to the first £y:30 of purchase-money, Short v. Millard, 68 Ills. 292; Ward v. 
 
 and £z \os. per cent, on the remainder. Lawrence, 79 Ills. 295 ; Newhall v. 
 
 This was said by several witnesses to be Pierce, 115 Mass. 457; Timberman v. 
 
 the usual charge; some said up to Craddock, 70 Mo. 638; Hinds z*. Henry, 
 
 ;^i,ooo, but most up to ;^2,ooo, in the 36 N.J. Law, 328; Martin v. Silliman, 
 
 absence of express stipulation. One 53N.Y. 615; Arrington !/. Gary, 5 Bax- 
 
 said his charge was ;^s per cent, up to ter (Tenn.) 609; Grant v. Hardy, 33 
 
 £\,ooo, and ^£'3 lOi. per cent, up to Wise. 668.] 
 
 ;^2,ooo. The case was decided in 1863. (/) Green v. Bartlett, 14 C.B.N.S. 
 
 (;«) J?^ Page, 32 Beav. 487. 681 ; 32 L.J.C.P. 261; 8 L.T.N.S. 503; 
 
 (») Meymott v. Meymott, 33 Beav. 11 W.R. 637. 
 590. 253 
 
*223 THE auctioneer's COMMISSION [PART I. 
 
 guinea only, if the premises were sold "without their inter- 
 vention," gave B. a card to view. B., thinking the price too 
 high, did not then purchase, but, subsequently renewing the 
 negotiation through a third party, ultimately became the pur- 
 chaser at a lower price. This was held to be sufficient evi- 
 dence to justify a jury in finding, as they did, that B. had 
 purchased through the intervention of the house agents, and 
 that the latter were entitled to their commission {q). 
 
 The recent case of Wilkinson v. Alston {r) is especially 
 instructive on this point. There the defendant, having ships 
 for sale, employed the plaintiff to obtain purchasers, agreeing 
 to pay a commission, if the plaintiff should be the means of 
 introducing a purchaser. In February, 1876, plaintiff intro- 
 duced a person who had been recommended to buy one of 
 the defendant's ships by A., whom the plaintiff had employed 
 to assist him in finding a purchaser, and the defendant agreed 
 that, if this resulted in a sale, the plaintiff and A. should share 
 the commission. No sale did result, and in March, 1876, A. 
 mentioned the defendant's same vessel to B., who chanced 
 to call upon him in reference to a ship of another owner. 
 Plaintiff, hearing of this, informed the defendant of B.'s call 
 and suggested his seeing B. on the subject. Defendant did 
 nothing in the matter, and B. had [223] at that time no in- 
 tention of purchasing the defendant's ship, and made no com- 
 munication about it to any one. Defendant then told plaintiff 
 that it was no use doing anything until the ship returned 
 home, and the plaintiff thenceforth took no steps to find a 
 purchaser. A., however, in April, again reminded B. of the 
 vessel, but B. took no notice of his reminder, and neither 
 plaintiff nor defendant was aware of A.'s having written. In 
 May B. wrote as broker directly to the defendant in refer- 
 ence to the vessel, and, after some negotiation, disclosed, on 
 the 13th of June, the name of the principal for whom he was 
 acting, and a sale was effected. Plaintiff, on hearing after- 
 wards of the sale, claimed his commission, on the ground that 
 the purchaser had been introduced through the medium of 
 
 (7) Mansell v. Clements, L.R. 9 C.P. (r) 48 L.J.Q.B. 733, decided in 1879; 
 
 139. [So in Martin i;. Silliman, 53 N.Y. see also Bailey v. Chadvvick, 39 L.T. 
 615.] N.S. 429; W.N. 1878, 201. 
 
 254 
 
CHAP. XII.] AND RIGHT TO INDEMNITY. 224* 
 
 his original negotiations with A. The jury found, on ques- 
 tions left to them, first, that the plaintiff was authorized to 
 find a buyer for the defendant's vessel ; and, secondly, that 
 B. was induced to enter upon the negotiation for the purchase 
 by the information he had received from A. ; and it was held 
 (reversing the decision of Lush, J.) that the plaintiff was 
 entitled to his commission. 
 
 Commission Dependent on a Contingency. — Where there is a 
 special contract between the auctioneer and his employer, 
 the right of the former to his commission will depend upon 
 the terms of the contract. If payment is conditional upon a 
 contingency, the auctioneer cannot, in general (s), recover 
 his commission, until the contingency has happened (i). 
 Where W. performed work for a committee, under a resolu- 
 tion passed by them that any service rendered by him should 
 be taken into consideration, and that such remuneration 
 should be made as should be deemed [224] right, it was held 
 that it was for the committee to decide whether he should 
 have anything, and, if anything, how much (u). Under an 
 agreement to pay " 2/. per cent, on the sum which may be 
 obtained " {x), or a fixed commission, if a sale is effected 
 within a stated time (j/), the agent is not entitled to his com- 
 mission, in the first case, until his principal has received the 
 money, and, in the second casfe, unless he obtains a purchaser 
 within the stipulated time. And where, upon a negotiation 
 for an exchange of advowsons, ;^iOO was to be paid as com- 
 mission, " one-third down, the remaining two-thirds when the 
 abstract of conveyance is drawn out," and one of the parties 
 delivered an abstract of his title, but no abstract was delivered 
 
 (f) See infra, p. 223. (jr) Bull v. Price, 7 Bing. 237; 5 
 
 if) Winter v. Mair, 7 Taunt. 531; Moo. & P. 2. [It has been held that a 
 
 of. Roberts v. Jackson, 2 Stark. 225; broker entitled to a compensation of 
 
 Caine v. Horsfall, i Ex. 519. [McGavock 3 per cent, of the purchase-money which 
 
 V. Woodlief, 20 Howard, 221 ; Thomas might be obtained will have no right to 
 
 V. Lincoln, 71 Ind. 41; Wylie i/. Marine compensation if a purchase is not com- 
 
 Bank, 61 N.Y. 415; Chilton v. Butler, pleted, though this is because the ven- 
 
 I E. D. Smith (N.Y.) 150; Goldsmith dor refused to sell upon the terms which 
 
 V. Obermeier, 3 id. 121; Durkee c.Ver- he had at first fixed: Power v. Kane, S 
 
 mont Central R.R. Co., 29 Vt. 127.] Wise. 265.] 
 
 (ti) Taylor u. Brewer, i M. & S. (^) Simpson v. Margitson, II Q.B. 
 
 290. 23; 17L.J.Q.B. 81. 
 
*225 THE auctioneer's COMMISSION [pART I. 
 
 on the part of the other, and the negotiation dropped, it was 
 held that the agent could not recover the two-thirds {z). 
 Again, where auctioneers, employed to find a mortgagee of 
 an estate, incurred expenses in advertising &c., and, they 
 having entered into correspondence with N., it was agreed 
 between them and their employers that, if N., in consequence 
 of their letters, advanced the money required, they should 
 have ^100, and N. did advance the money, but not in conse- 
 quence of their letters, they were held not entitled to recover 
 the ^ioo(a). In an Irish case, a house agent was to be 
 paid a commission, when the property he was employed to 
 sell was disposed of to a person who had obtained informa- 
 tion respecting it through the agent's office, or whose pro- 
 posal had been accepted. The agent found a party who was 
 wilhng to purchase upon the vendor's terms, but who subse- 
 quently declined to enter into [225] a contract, on the ground 
 that the vendor had been guilty of misrepresentation. The 
 Court held that the agent was not entitled to his commission, 
 as they had been merely a treaty for a contract, which had 
 been broken off (b). 
 
 Quantum Meruit. — But, although the auctioneer cannot re- 
 cover his commission, so long as the special contract remains 
 unperformed, still, he is, in most cases, entitled to a fair I'e- 
 muneration for his services, i^ he has done work under the 
 contract, by which his principal has been benefited, or if the 
 latter has wrongfully refused to perform his part of the con- 
 tract, or rendered himself incapable of doing so (c). The 
 amount recoverable will vary according to the special circum- 
 
 (=) Alder v. Boyle, 4 C.B. 635; 16 i Taunt. 12; Lara v. Hill, 15 C.B.N.S. 
 
 L.J.C.P. 232. 45; see notes to Cutter v. Powell, 2 Sm. 
 
 (a) Green w. Mules, 30 L.J.C.P. 343. L.C. i. [Girardey v. Stone, 24 La. 
 
 {b) Cannon v. Kelly, Hay. & J. 655. Ann. 286; Russell v. Miner, 6i Barb. 
 
 [An auctioneer employed for a certain (N.Y.) 534; s.c, 5 Lans. (N.Y.) 537; 
 
 commission on his sales cannot demand Carpenter v. Le Count, 22 Hun (N.Y.) 
 
 tliis commission upon a bid which has 106. If an auctioneer's sale of property 
 
 not been complied with : Cochran v. under order of court is set aside by the 
 
 Johnson, 2 McCord (So. Car.), 21. The courtandaresale ordered, the auctioneer 
 
 auctioneer must actually sell, to earn is entitled to compensation for his ser- 
 
 his fees: Ward v. James, 15 N.Y. Su- vices at both sales, if it was not for any 
 
 preme Court (8 Hun), 526.] default of his that the first sale was set 
 
 (c) Lull V. Price, 7 Bing. 237, 241 ; aside : Benner's Estate, 3 Brewster 
 
 5 Moo. & P. 2, 8; Horford v. Wilson, (Penn.) 398; S.C, 7 Phila. 333.] 
 
 256 
 
CHAP. XII.J AND RIGHT TO INDEMNITY. 226* 
 
 Stances of each case. From the summing up of Denman, 
 C.J., in the case of Rainy v. Vernon (d) it would appear that 
 a vendor who, after employing an auctioneer to sell property, 
 the latter to be paid an agreed commission on sale, sells the 
 property himself, the auctioneer having incurred expenses 
 with regard to advertisements &c., will be liable to pay the 
 full commission, just as if the auctioneer had sold the prop- 
 erty, if the jury find that there is a notorious custom to that 
 effect. The custom must, however, be so notorious that 
 every one in the trade, and the vendor himself, must be 
 taken to have known it {e). In general, the amount of remu- 
 neration will be in proportion to the services rendered. 
 Where a company employed a broker to sell their shares on 
 the terms that he should be paid ^loo down [226] and 
 ^£400 in addition upon allotment of the shares, and he dis- 
 posed of a considerable number of the shares, when the com- 
 pany was wound up, the Court, having power to draw 
 inferences of fact, held that he was prevented from earning 
 the £,Apo by the act of the company, and that he was there- 
 fore entitled to recover a proportion of the £,Afio (_/). In a 
 more recent case {g) half of the agreed commission was 
 allowed to a broker who had had the business taken out of 
 his hands before completion, there being a mercantile custom 
 to that effect. If the auctioneer has actually found a pur- 
 chaser at the required price, but the vendor refuses or is un- 
 able to sell, there seems to be no reason why the auctioneer 
 should not receive his full commission {h). 
 
 But if the principal has agreed to pay the auctioneer a cer- 
 tain commission "on sale" and, before the auctioneer has 
 found a purchaser, sells the property without the interven- 
 
 ((/) 9 C. & P. 559; see also Driver {g) Queen of Spain v. Parr, 39 L.J. 
 
 V. Cholmondeley, ibid, note ; cf. Stewart Ch. 73. 
 
 V. Kahle, 3 Stark. 161. It appears, (Ji) See Per Willes, J., in Prickett 
 
 however, from the report of Rainy v. v. Badger, i C.B.N.S. 296; 26 L.J.C.P. 
 
 Vernon, that the purchaser had first 33; 3 Jur. N.S. 66; Clark v. Smythies, 
 
 heard of the property being for sale by 2 F. & F. 83. [See Bash v. Hill, 62 
 
 seeing the auctioneer's advertisement. Ills. 216; Turner v. Webster, 24 Kan- 
 
 {e) Wood f. Wood, I C. & P. 59. sas, 38; Bailey v. Chapman, 4t Mo. 
 
 (/) Inchbald v. The Western Neil- 536; Durkee v. Vt. Central R.R. Co., 
 
 gherry Coffee, &c., Co., 17 C.B.N.S. 733; 29 Vt. 127; Stewart v. Mather, 32 
 
 34 L.J.C.P. 15. The Court assessed the Wise. 344.] 
 damages at .^250. 257 
 
*227 THE auctioneer's COMMISSION [PART I. 
 
 tion of the auctioneer, the latter will not, in the absence of 
 special circumstances, be entitled to recover anything, if it 
 appears from the contract that nothing was to be paid unless 
 he effected a sale {i). The auctioneer could, however, re- 
 cover, if the act of his principal had been wrongful {k). 
 
 Employment of More than One Agent. — If two more estate 
 agents are employed to sell property, and one finds, and 
 another concludes, the bargain with a purchaser, and accord- 
 ing to the usage the commission is payable to the agent who 
 finds the purchaser, the jury is not bound to give that agent 
 the full amount of the [227] commission (/). If a purchaser 
 be obtained by means of one of the agents only, the success- 
 ful agent is alone entitled to commission, unless the other 
 has incurred expense in carrying out his instructions, or is 
 entitled to commission by custom or usage {m). 
 
 Right to Commission, how Lost. — Notwithstanding his gen- 
 eral right to remuneration, the auctioneer cannot claim any 
 commission, if he is himself the executor («), trustee {o), or 
 mortgagee with a power of sale (/), of the property he sells, 
 unless it appears from the trust instrument or mortgage deed 
 that he is to be entitled to charge a commission {g) ; or if he 
 purchases the property for himself, or sells it to a firm of 
 which he is a partner, or to a company in which he is a share- 
 holder (r). Nor is he entitled to any commission, if the trans- 
 action upon which he was employed was illegal {s) ; or if, in 
 
 (0 Simpson -'. Lamb, 17 C.B. 603; (/) Mathison i'. Clarke, 3 Drew. 
 
 25 L.J.C.P. 113. 3; 24L.J. Ch. 202. 
 
 (/<:) Il)i,/. {j) Douglass v. Archbutt, 2 De G. 
 
 (/) Murray v. Currie, 7 C. & P. 584. & J. 148; or, it seems, unless it appears 
 
 [See Morgan v. Mason, 4 E. D. Smith tb.it the object of the auctioneer in 
 
 (N.\.) 636.] entering into the transaction was to 
 
 (/«) Add. Con. 711. earn a commission: Miller v. Beal, 
 
 (;z) Ilovey z/. Blakeman, 4 Vcs. 596. W.X., 1S79, 36; 27 W.R. 403. 
 
 (») Kirkman z-. Booth, II Beav. 273, {r) Salomons t*. Pender, 3 IT. & C. 
 
 And by G.R. 119, 32 & t,t, Vict. c. 71 639; 34 L.J. Ex. 95; 11 Jur. X.S. 432; 
 
 (Bankruptcy Act, iS6g), where the 12 L.T.N. S. 267; 13 W.R. 637; cf. 
 
 trustee in a liankruptcy is an auctioneer, ante, p. 125. 
 
 he may not by himself, or any partner, (j) Holland v. Hall, i B. & Aid. 
 
 act as such in the sale of any property 53; Josephs v. Pebrer, 3 B. & C. 639; 
 
 vested in him, except with the consent Lawton v. Hickman, Q.B. 563. [Arm- 
 
 of the committee of inspection and upon strcmg v. Toler, li Wheaton, 258, 261, 
 
 such terms as they may think fit. 262.] 
 
 2s8 
 
CHAP. XII.] 
 
 AND RIGHT TO INDEMNITY. 
 
 228* 
 
 consequence of his negligence or unskilfulness, the sale is 
 defeated (t). In the latter case, indeed, he may render him- 
 self liable in [228] damages to his employer (u), though merely 
 nominal damages will be given, if the latter has sustained no 
 actual loss (x), and, in general, the auctioneer will not be 
 liable if he has acted doftd fide and on the best advice he was 
 able to obtain (jc). An auctioneer cannot recover from his 
 employer any extra costs which he may have incurred through 
 his own negligence or ignorance of the law (s), or money which 
 he may have had to pay in consequence of his own fraud, 
 even though his employer participated in the fraud (a). 
 
 Auctioneer's Lien. — When the transaction has been regular 
 on the part of the auctioneer, he has a lien for his commission 
 and expenses upon goods entrusted to him for sale, so long 
 as they are in his possession, though not necessarily on his 
 premises ; and he is entitled to refuse delivery of them to the 
 purchaser, if sold, or to the vendor, if unsold, until his claim 
 has been satisfied (b). And if the deposit or purchase-money 
 has been paid to the auctioneer, he has a lien upon it similar 
 
 (f) Denew v. Daverell, 3 Camp. 
 451, where the sale went off through 
 the auctioneer having neglected to insert 
 an ordinary condition : Jones v. Nanney, 
 McCle. 25; 13 Price, 76; Hamond v. 
 Holiday, i C. & P. 384; White v. Chap- 
 man, I Stark. 113; Hurst v. Holding, 
 3 Taunt. 32. [Fisher v. Dynes, 62 Ind. 
 348; Howe V. Dewing, 2 Gray (Mass.) 
 476, 479 ; Dodge v. Tileston, 1 2 Pick. 
 (JIass.) 328; Hicks v. Minturn, 19 
 Wend. (N.Y.) 550.] 
 
 (zi) Parker v. Farebrother, I C.L.R. 
 323, where the vendor recovered from 
 the auctioneer the amount which he had 
 been obliged to allow the purchaser in 
 consequence of the auctioneer having 
 negligently misdescribed the property : 
 Peirce v. Corf, L.R. 9 Q.B. 210; 43 
 L.J.Q.B. 52, where the auctioneer neg- 
 lected to make a binding contract ; cf. 
 Kavanagh v. Cuthbert, I.R. 9 C.L. 136. 
 [See Sawyer v. Mayhew, 51 Maine, 398; 
 Sampson -'. Somerset Iron Works, 6 
 Gray (Mass.) 120.] 
 
 (x) Hibbert v. Bayley, 2 F. & F. 48. 
 
 (_j/) Miles v. Bernard, Peake, Add. 
 Cas. 61, [Hicks v. Minturn, 19 Wend. 
 (N.Y.) 550.] 
 
 {z) Capp V. Topham, 6 East, 392; 
 2 Smith, 443, where an auctioneer ren- 
 dered himself liable to pay the auction 
 duty through his own blunder, his prin- 
 cipal being equally in error ; cf. Christie 
 V. Attorney-General, 6 Bro. P.C. 520. 
 
 {a) Merryweather v. Nixon, 8 T.R. 
 186; 2 Sm. L.C. 527; Adamson v. Jar- 
 vis, 4 Bing. 66, 72. 
 
 (Ji) Williams v. Millington, i H. Bl. 
 81, 85; approved in Woolfe v. Home, 
 2 Q.B.D. 355; 46 L.J.Q.B. 534; 36 L. 
 T.N.S. 705; 25 W.R. 728; Lane v. 
 Tewson, 12 A. & E. 116, n.; I G. & D. 
 584. [And he may in his own name 
 maintain an action against the buyer for 
 a fee stipulated by the terms of sale to 
 be paid to him : Johnson v. Buck, 35 
 N.J. Law, 338; Leeds v. Bowen, i 
 Robt. (N.Y.) 10; s.c, 2 Abbott Pr., 
 N.S. (N.Y.) 43. But his right to re- 
 cover will depend upon the validity of 
 the contract of sale as between the buyer 
 
 259 
 
*229 THE auctioneer's COMMISSION [PART I. 
 
 to that which he has upon the goods {c). He has not, 
 however, [229] a lien for expenses he may have incurred in 
 removing goods contrary to the express directions of the 
 owner {d), or in respect of dissimilar and collateral transac- 
 tions {e), or of claims against third parties. Where A. sent 
 goods to B. for sale, who deposited them with C, an auc- 
 tioneer, and A. subsequently demanded the goods from C, 
 who refused to deliver them until a claim which he had against 
 B. was satisfied, it was held that he was not justified in so 
 detaining them, and that, by claiming the amount owing to 
 him from B., he had waived the lien, which he otherwise 
 would have had, for warehouse-rent (/). 
 
 Bankruptcy of Auctioneer. — If an auctioneer becomes bank- 
 rupt, the right to sue for any commission due to him at the 
 time of the bankruptcy, or prior to the time at which he 
 obtains his discharge, vests in his trustee in bankruptcy {g). 
 
 Auctioneer's Right to Indemnity. — If the auctioneer, in the 
 proper performance of his duty to his principal, does an act 
 injurious to the rights of a third party, such as selling goods 
 to which the principal has no title {k), a contract to indemnify 
 the auctioneer against the consequences of such act will be 
 presumed against the principal, provided that the act done 
 
 and the seller: Johnson v. Buck, uU tees no right to claim a double com- 
 
 supra. The net proceeds of a sale by mission out of the proceeds of the sale : 
 
 auction are what is left after paying the Stewart v. Glenn, 3 Md. 323.] 
 commission and other expenses of the {d) Grimshaw v. Atterwell, 8 C. & 
 
 sale: Williamson i'. Baltimore, 19 Md. P. 6. 
 
 4' 3-] {/) Houghton v. Matthews, 3 B. & 
 
 (<r) Drinkwater !<. Goodwin, \ Cowp. P. 485; cf. Scarfe v. Morgan, ? M. & 
 
 251; Hammonds v. Barclay, '» East, W. 270. 
 
 227. [Succession of Dowler, 29 La. (/) Dirks v. Richards, 5 Sco. N.R. 
 
 Ann. 437. And the auctioneer may ap- 534. [Nor, if he had sold the goods, 
 
 propriate so much of the money pro- would he have had any lien upon the 
 
 duced by his sales as may be due to proceeds thereof for his commissions: 
 
 him for his commissions to the payment Hone v. Henriquez, 13 Wend. (N.Y.) 
 
 of his individual debt to a purchaser at 240. In Succession of Navarro, 24 La. 
 
 such sale : Harlow v. Sparr, 15 Mo. 184. Ann. 105, it was held that an auctioneer 
 
 But where the trustees of mortgaged who had sold an estate at the request 
 
 property postponed the sale thereof at of a curator thereof, the sale having af- 
 
 the request of the mortgagor and upon terwards been declared void, had no 
 
 the latter's stipulation that they should claim upon the estate for his services.] 
 be allowed double commissions, this was {£) Emden v. Carte, 17 Ch. D. 169; 
 
 held to be merely •i personal contract aff. ib. 768. 
 
 of the mortgagor, and to give the trus- (Ji) Adamson v. Jarvis, 4 Bing. 66. 
 
 260 
 
CHAP. XII.J AND RIGHT TO INDEMNITY. 23O* 
 
 was not illegal and tortious to the knowledge of the auction- 
 eer (?'). And it would appear that, if an auctioneer, on re- 
 ceipt of a notice that the goods which he is about to sell do 
 not belong to his principal, acts bond fide in accordance with 
 the terms [230] of the notice, he will be entitled to recover 
 from the party giving such notice any damages which he may 
 have been obliged to pay to his principal in consequence of 
 having so acted (k). 
 
 (j) Dugdale v. Lovering, L.R. lo ii. Martin, 86 Penn. St. 120; Avery u. 
 C.P. 196, and cases there cited; Attor- Halsey, 14 Pick. (Mass.) 174; Coventry 
 ney-General v. Ray, L.R. 9 Ch. 397, z/. Carton, 17 Johns. (N.Y.) 142.] 
 405. [The same rule was enforced in (Ji) Ibid. 
 
 Beach v. Branch, 57 Ga. 362; Maitland 
 
 261 
 
*23 1-232 auctioneer's responsibility for [part I. 
 
 [231] 
 CHAPTER XIII. 
 
 THE auctioneer's RESPONSIBILITY FOR THE PROPERTY AND 
 FOR THE SALE PROCEEDS. 
 
 Auctioneer's Liability as Custodian of the Property. — It is the 
 
 duty of an auctioneer to take tlie same care of property en- 
 trusted to him for sale as he would of his own {a). He is 
 liable for any loss of it or damage to it that may happen 
 through his default or negligence {b) ; but he is not liable for 
 any loss or damage caused by robbery, fire or other accident, 
 without default or negligence on his part (c). When he has 
 undertaken to insure goods which he is employed to sell, he 
 must give notice to his principal, if from any cause he is 
 unable to effect an insurance ; otherwise he will be liable 
 for any loss that may occur through the goods not being 
 insured {d). 
 
 So long as the property remains unsold, the owner can 
 [232] recover it from the auctioneer by action (e) ; and should 
 
 (a) Maltby v. Christie, i Esp. 340; ((/) Callander v. Oelrichs, 5 Bing. 
 
 Massey !<. Banner, I J.& W. 241. That N.C. 58. [Shoenfeld v. Fleisher, 73 
 
 is, as a prudent man would of his own. Ills. 404. But his duty will be fulfilled 
 
 (i5) Nor can he be heard to say that if he obtains reasonable insurance in 
 
 perhaps the property would not have good companies, though they afterwards 
 
 escaped, even if he had acted with due fail to pay the loss in consequence of a 
 
 diligence: Da\-is v. Garrett, 6 Bing. general conflagration, and though the 
 
 716, 724. [Story on Agency, § 200, policies were not in the name of the 
 
 and cases there cited.] owner or delivered to the latter: John- 
 
 (_c) Vere z*. Smith, Vent. 121 ; Malt- son z'. Campbell, 120 Mass. 449. See 
 by V. Christie, i Esp. 340; notes to Gettins v. Scudder, 71 Ills. 86.] 
 Coggs TJ. Bernard, I Sm. L.C. 188; Sm. {e) See 6 Geo. IV. ... 94, s. 6; Top- 
 Merc. Law, 113; or for any damage or ham v. Braddick, I Taunt. 572. As to 
 loss incurred by him, without default or the owner's right to follow the proceeds 
 negligence, while he is engaged in the of sale, see Taylor v. Plumer, 3 JI. & S. 
 prudent exercise of his discretion and in 562 ; Scott v. Surman, Willes, 400 ; 
 pursuance of the regular and accus- Whitecomb i^. Jacob, i Salk. 160; Ryall 
 tomed course of business: Russell v. :>. Rolle, i Atk. 165. [United States f. 
 Ilankey, 6 T.R. 12; Knight v. Lord State Bank, 96 U.S. 30; Le Breton i/. 
 Plymouth, 3 Atk. 480; Belchier z/. Par- Peirce, 2 Allen (Mass.) S; Meiggs v. 
 sons, Amb. 219; Warwicke v, Noakes, Meiggs, 15 Hun (N.Y.) 453.] 
 Peake, 68. 
 
 262 
 
CHAP. XIII.] PROPERTY AND SALE PROCEEDS. 233* 
 
 the auctioneer wrongfully and unwarrantably dispose of it or 
 part with it, the owner can maintain an action against him 
 for the conversion (/). Where A. sent three horses to B., 
 an auctioneer, to be sold next day, and, upon being told by 
 B.'s clerk that the next day would not be so good as the 
 following sale-day, said that he would send for them back 
 again, which he did the next evening, but the horses had then 
 been sold, it was held that B. was liable to A. for a conver- 
 sion of the horses {£■). The principal may, however, waive 
 his right of action by subsequently approving of the auc- 
 tioneer's conduct (A). 
 
 Auctioneer's Duty to Account for Sale Proceeds. — When the 
 auctioneer receives the purchase-money as agent for the ven- 
 dor, it is his duty to immediately account for it, and pay over 
 the balance due, to the latter (?'). He is not, however, in 
 general, liable to pay interest upon money which has come 
 to his hands on his principal's behalf, unless there has been 
 fraud oi: misconduct' on his part, such as improperly with- 
 holding accounts and refusing to pay over the money, when 
 demanded (k). It is imperative upon an agent to preserve 
 correct accounts of all his dealings and transactions ; and the 
 loss, and still more the destruction, of his accounts by the 
 [233] agent falls most heavily upon himself (/). If the agent 
 refuses an account, the principal may bring an action against 
 him for not accounting, and obtain discovery of his books and 
 papers (wz). If the items of the agency account can be proved, 
 
 (/) As to 7'm ^^)-^u and want of title (/) Gray w. Haig, 20 Beav. 219, 239. 
 
 in the principal, see ani^. Chapter II. [So in Smith !>. Crews, 2 Wo. App. 269; 
 
 (g) Powellz/.Sadler, Paley,P.&A. 80. Clark v. Moody, 17 Mass. 145; Hart v. 
 
 (A) Earl of Ferrers v. Robins, 2 C. Ten Eyck, 2 Johns. Ch. (N.Y.) 62, 108.] 
 
 M. & R. 152; I Gale, 70; 5 Tyr. 705. (m) Sm. Merc. Law, 112; Jud. Act, 
 
 [McVeigh z/. Bank of Old Dominion, 26 1875, O. XXXI. A London broker 
 
 Gratt. (Va.) 188.] cannot protect himself against affording 
 
 (;') Crosskey v. Mills, I CM. & R. discovery on the ground that such dis- 
 
 298; Gray v. Haig, 20 Beav. 219, 239; covery will subject him to a forfeiture 
 
 Smith, Merc. Law, 1 10. As to the de- of the penalty of his bond to the cor- 
 
 posit, see an/e, Chapter IX. poration of London : Green v. Weaver, 
 
 (/') Turner i-. Burkinshaw, L.R. 2 I Sim. 404. An action will not lie 
 
 Ch. 488; &. Jolland, 8 Ves. 72; against the agent for not accounting, 
 
 Sm. Merc. Law, ill; or applying the until after demand of an account : Top- 
 money to his own use: Rogers v. ham z/. Braddick, i Taunt. 571. After 
 Boehm, 2 Esp. 701. the lapse of a reasonable time, a jury 
 
 263 
 
*234 auctioneer's responsibility for [part I. 
 
 the principal can sue for the balance due to him as money 
 had and received («). 
 
 If the agent places the principal's money to his own ac- 
 count at his banker's, without any mark distinguishing it 
 from his own, he will be answerable for it, if the banker fails : 
 if it were otherwise, he might treat it as his own, if the bank- 
 er's solvency continued, and as his principal's, if the banker 
 failed (<?). 
 
 Sub-Agents. — The agent of an agent, as, an auctioneer's 
 clerk, is not accountable to the principal, but only to his 
 master (/). 
 
 Insolvency of Principal. — An auctioneer may' none the less 
 safely pay over the proceeds of sale to his principal, because 
 he knows that the latter is in embarrassed circumstances {q). 
 
 Auctioneer's Personal Liability for Sale Proceeds. — The auc- 
 tioneer is not, in general, responsible to his [234] employer 
 for the purchase-money of the property sold, unless he has 
 received it (r) ; but there are cases in which he may render 
 himself liable for the purchase-money, although it has not 
 been paid by the purchaser ; as, where he has, without ex- 
 press authority, sold goods upon credit {s) ; or where he allows 
 the contract to be rescinded, without his principal's consent. 
 Where an auctioneer, having sold some horses which had 
 
 may presume that a demand has been a breach of trust are equally liable; 
 
 made, and the agent has accounted : there is between them no primary lia- 
 
 ibiii. bility " — per Leach, M.R., in Wilson 
 
 (;j) Tomkins v. Willshear, 5 Taunt, v. Moore, i Myl. & K. 126, 146; aff. 
 
 431; I Marsh. 115. ib. 337. 
 
 (0) Sm. Merc. Law, 112; Wren v. (^7) Always assuming that the trans- 
 
 Kirton, II Ves. 377; Massey z<. Banner, action is not fraudulent : White z'. Bart- 
 
 I J. & W. 241; 4 Madd. 413; Fletcher lett, 9 Bing. 378 ; Sugd. 53; Dart, 180. 
 
 V, Walker, 3 Madd. 73; Darkie v. (r) In cases where payment to the 
 
 Martyn, i Beav. 525. [Marine Bank v. agent is payment to the principal, if the 
 
 Fulton Bank, 2 Wallace, 252; Cartmell agent admits that he has received money, 
 
 V. AUard, 7 Bush (Ky.) 4S2; Norris v. as, by giving credit in account with the 
 
 Hero, 22 La. Ann. 605.] debtor, he is precluded from saying, 
 
 (^ ) Cartwright v. Hately, I Ves. against his principal, that he has not re- 
 
 292; Stephens i'. Badcock, 3 B. & Ad. ceivedit; Andrew z^. Robinson, 3 Camp. 
 
 354; [Reid V. Humber, 49 Ga. 207 ; 199. 
 
 Pownall V. Blair, 78 Penn. St. 403 ; (i) Williams v. Millington, i H. BI. 
 
 Jackson Ins. Co. v. Partee, 9 Heisk. 8i; Earl of Ferrers v. Robins, 2 CM. 
 
 (Tenn.) 296;] unless he has been guilty & R. 152; i Gale, 70; 5 Tyr. 705; see 
 
 of a breach of trust; for " all parties to also ante, p. 28, note {n). 
 
 264 
 
CHAP. XIII.] PROPERTY AND SALE PROCEEDS. 23S 
 
 * 
 
 been sent to him for that purpose, subsequently allowed the 
 purchaser of one of the horses to rescind the contract on the 
 ground that the horse did not answer the description given 
 of him, it was held that, since the auctioneer had deviated 
 from the usual course of his duty in taking upon himself to 
 rescind the contract, it was incumbent upon him to show his 
 warranty for doing so, and that, as he did not give such proof, 
 his employer was entitled to recover from him the amount at 
 which the horse had been sold (t). If an auctioneer, giving 
 credit to the purchaser, pays the amount of the purchase- 
 money, after deducting his charges', to his principal, with 
 notice of an arrangement made between his principal and the 
 purchaser, that the amount bid should be set off against an 
 existing debt due from the former to the latter, he cannot 
 recover the amount so paid by him from the purchaser (u). 
 If a purchaser pays his money to an agent, when the latter is 
 not authorized to receive it, he makes that agent his own for 
 the purpose of [235] paying the money over (x) ; but if, in 
 such a case, the agent has actually paid over the money, he 
 is not liable to an action by the person who mispaid him (_y). 
 If the seller, for valuable consideration, direct the auctioneer 
 to pay over the proceeds of the sale to a third person, he can- 
 not revoke such direction without the consent of the third 
 person (z). 
 
 Auctioneer not Alvtrays Liable for Purchase-money Paid to him. 
 — The auctioneer is not liable to his principal for the pur- 
 chase-money in all cases where it has been paid to him. For 
 instance, proof of money received upon a condition will not 
 support a claim for money had and received. Thus, a horse 
 was sold at a repository, with a warranty that it was quiet in 
 harness, under the following, among other, conditions : (i) 
 that " should any horse be warranted and prove unsound, he 
 must be returned within the second day after the sale, before 
 
 (i) Nelson z/.Aldridge, 2 Stark. 435. if the mistake was corrected before he 
 
 («) Grice </. Kenrick, L.R. 5 Q.B. paid it over, he will be liable : iiiif. 
 340. (0) Metcalfe v. Clough, 2 Man. & R. 
 
 (jt) Parnther v. Gaitskell, 13 East, 178; Sugd. 50; Rodicic v. Gandell, 12 
 
 432. Beav. 325; I De G.M.&G. 763; Yates 
 
 (jc) Per Lord Mansfield, C.J., in v. Hoppe, g C.B. 541. 
 Buller V. Harrison, i Cowp. 565. But 
 
 265 
 
*236 auctioneer's responsibility, etc. [part I. 
 
 five o'clock, with a certificate from a veterinary surgeon par- 
 ticularly describing the unsoundness, when, if confirmed by 
 the veterinary surgeon of the establishment, the amount re- 
 ceived for the horse shall be immediately paid back, but if 
 he should not confirm the certificate, another veterinary sur- 
 geon shall be called in, and his decision shall be final "; (2) 
 that " if a horse warranted quiet in harness or quiet to ride 
 or in any other respect (except as to soundness) shall be re- 
 turned within the prescribed period as not answering the 
 warranty given with him at the time of sale, he shall be tried 
 and examined by an impartial person, whose decision shall be 
 final "; and (3) that the purchase-money for any horse sold 
 at the repository vas not to be [236] paid over to the vendor 
 till four days after the sale. The horse was paid for and taken 
 away by the purchaser, but afterwards returned on the ground 
 that it did not answer the warranty ; whereupon the auc- 
 tioneer handed back the price. It was held that the sum 
 received by the auctioneer was not money had and received 
 to the use of his principal (a). In another case the plaintiff 
 sold a horse for the defendant and received the price. The 
 purchaser afterwards rescinded the contract on the ground of 
 fraud and was repaid the purchase-money. In an action for 
 the keep of the horse it was held that the defendant could 
 not set off the price as money received to his use, it having 
 ceased to be so when the contract was defeated by the pur- 
 chaser, although the defendant was ignorant of the fraud {b). 
 
 (a) Hardingham v. Allen, 5 C.B. (i) Murray v. Mann, 2 Ex. 538; cf. 
 
 793; 17 L.J.C.P. 198; 12 Jur. 5S4. Stevens v. Legh, 2 C.L.R. 251. 
 
 266 
 
CHAP. XIV.] 
 
 SALES BY THE COURT. 
 
 23;* 
 
 [237] 
 
 CHAPTER XIV. 
 
 SPECIAL KINDS OF SALES BY AUCTION. 
 
 I. Sales by the Chancery Division of the High Court of 
 Justice. 
 
 Sales by the Coutt are Usually by Auction. — When a sale of 
 land or houses has been ordered by the Chancery Division (a), 
 it is usually, though not invariably, effected by a sale by pub- 
 lic auction {b). A sale by auction by the Court naturally 
 differs in some respects from an ordinary sale by auction. 
 
 (3) As to the jurisdiction of the 
 Court to sell and its exercise, see Jud. 
 Act, 1873, s. 34; Dart, 1171-1194. 
 
 (i) Cf. anie, p. 10, note («). [A 
 partition sale or other sale under a de- 
 cree of court must be made to the high- 
 est bidder at a public auction : Hache 
 V. Ayraud, 14 La. Ann. 178; Veazie v. 
 Williams, 8 Howard, 134. See William- 
 son Z). Berry, 8 Howard, 496, 544; 
 Latrobe v. Herbert, 3 Md. Ch. Dec; 
 375. The jurisdiction of a court of 
 equity to order a sale of land, or other 
 property the subject of a suit before it, 
 is undoubted. See Miller v. Sherry, 2 
 Wallace, 237; De Bardelaben v. Stou- 
 denmire, 48 Ala. 643; Rivers v. Durr, 
 46 Ala. 418; Ryder v. Innerarity, 4 
 Stew. & P. (Ala.) 14; Carter v. Waugh, 
 42 Ala. 452; Very v. Watkins, 18 Ark. 
 546; Moody V. West, 12 Ind. 399; 
 Kramer v. Rebman, 9 Iowa, 114; Col- 
 lier z). Collins, id. 126; Ketzner f. Brad- 
 street, I Greene (Iowa) 382; Burgess 
 w. Eastham, 3 Bush (Ky.) 476; Wal- 
 worth V. Stevenson, 24 La. Ann. 251; 
 Calwell V. Boyer, 8 Gill & J. (Md.) 136; 
 Wilson V, Duncan, 44 Miss. 642; Riley 
 z'. McCord, 24 Mo. 265 ; Thompson v. 
 Hardman, 6 Johns. Ch. (N.Y.) 436; 
 Jones V. Conde, id. 77 ; Blake v. Wil- 
 
 26 
 
 liams, 36 N.H. 39; Glover v. Ruffin, 6 
 Ohio, 255; Anonymous, I Ohio, 235; 
 McCall's Appeal, 56 Penn. St. 363; 
 Moore v. Williamson, 10 Rich. Eq. 
 (So. Car.) 323; Pell v. Ball, i id. 361; 
 Steedman v. Weeks, 2 Strobh. Eq. (So. 
 Car.) 145; Kindell z/. Titus, 9 Heisk. 
 (Tenn.) 727; Harkins v. Forsyth, II 
 Leigh (Va.) 294. And innocent third 
 persons who purchase property at a 
 public sale, under the decree of a com- 
 petent court having jurisdiction over the 
 subject matter and of the parties to the 
 suit, will take a title unaffected by any 
 mere irregularities in the proceedings. 
 The purchaser is not obliged to inquire 
 whether there have been any errors in 
 the action of the court; it is sufficient 
 protection for him that the court has 
 acquired jurisdiction and made a valid 
 judgment or decree ; and his title will 
 not be affected by the subsequent rever- 
 sal or setting aside of this judgment or 
 decree for error or irregularity or for 
 any cause not touching its jurisdiction : 
 Koontz V. Northern Bank, 16 Wallace, 
 196; Grignon v. Astor, 2 Howard, 319; 
 Gray v. Brignardello, i Wallace, 627; 
 Thompson v. Tolmie, 2 Peters, 157; 
 Fleming v. Johnson, 26 Ark. 421 ; 
 Walker v. Morris, 14 Ga. 323; Hunter 
 
 7 
 
'237 
 
 SALES BY THE COURT. 
 
 [part I. 
 
 Who has the Conduct of a Sale. — The conduct of the sale is 
 given, as a general rule, to the plaintiff or other party having 
 the carriage of the general proceedings ; but, if it appears to 
 
 V. Stoneburner, 92 Ills. 75; Sowles v, 
 Harvey, 20 Ind. 217; Doe v. Swiggett, 
 5 Blackf. (Ind.) 328; Armstrong v. 
 Jackson, I id. 210; Frakes v. Brown, 
 2 id. 295 ; Smitii v. Burnes, 8 Kansas, 
 197; Vanbussum v. Maloney, 2 Mete. 
 (Ky.) 550; Gossom v. Donaldson, 18 
 B. Mon. (Ky.) 230; Wisdom v. Parker, 
 31 La. Ann. 52; Herriman u. Janney, 
 id. 276; Holden v. Sackett, 12 Abbott, 
 Pr. (N.Y.) 473; Graham v. Bleakie, 2 
 Daly (N.Y.) 55 ; Henry v. Ferguson, 
 I Bailey (So. Car.) 512; Barkley v. 
 Screven, I Nott & M. (So. Car.) 408; 
 Winchester v. Winchester, I Head 
 (Tenn.) 460 ; Zirkle v. McCue, 26 Gratt. 
 (Va.) 517. The sale may be good, 
 though the decree which ordered it was 
 erroneous in law, and the prelimary 
 proceedings were irregular ; Dungan v. 
 Vondersmith, 49 Md. 249. The pen- 
 dency of an attempted appeal from the 
 decree, which does not operate a stay 
 of the proceedings, will not invalidate a 
 sale made in the meantime and regu- 
 larly confirmed : Whiting v. United 
 States Bank, 13 Peters, 6; Morton v. 
 Underwood, 49 Ala. 419; Ilening v. 
 Punnett, 4 Daly (N.Y.) 543; Irwin ■v. 
 Jeffers, 3 Ohio St. 389; Robinson v. 
 Clancy, 69 Penn. St. 89. But it is 
 otherwise if the appeal is made prior to 
 the confirmation of the sale or the con- 
 veyance, and if it does operate a stay of 
 the proceedings : Miller v. Hall, i Bush 
 (Ky.) 229; Chesapeake Bank v. Mc- 
 Clellan, i Md. Ch. Dec. 328; Wam- 
 baugh ty. Gates, 4 Selden (N.Y.) 138. 
 See further Fenwick v. Macey, 2 B. 
 Mon. (Ky.) 469; Clary v. Marshall, 4 
 Dana (Ky.) 95; McCown z/. Foster, 33 
 Texas, 241. But this doctrine will not 
 be applied for the protection of a pur- 
 chaser at a sale made under a mere 
 interlocutory order, or under a condi- 
 tional order, if the condition has not 
 yet been fulfilled : Gray v. Biignardello, 
 I Wallace, 627; Southern Bank v. 
 
 Humphreys, 47 Ills. 227. Nor will the 
 purchaser be protected against any 
 party over whom the court had not 
 gained jurisdiction, and against whom 
 the decree of sale was therefore void; 
 Shelton v. Tiffin, 6 Howard, 163 ; 
 Harlan v. Stout, 22 Ind. 488; Hawkins 
 V. Hawkins, 28 Ind. 66; Harshey v. 
 Blackniarr, 20 Iowa, 161; Earle t'. Tur- 
 ton, 26 Md. 23; Hamilton v. Lockhart, 
 41 Miss. 460; Gwin o. McCarroll, i 
 Sm. & M. (Miss.) 351; Martin v. Tur- 
 ner, 2 Heisk. (Tenn.) 384. But the 
 validity of a judicial sale will be pre- 
 sumed, especially after a considerable 
 lapse of time ; and it can be controverted 
 only upon clear and strong evidence : 
 Kilgour V. Gockley, 83 Ills. 109; Wil- 
 son V. Kellogg, 77 Ills. 47; Whitman 
 V. Fisher, 74 Ills. 147; Bacchus v. 
 Moreau, 4 La. Ann. 313; Gallaher v. 
 Collins, 7 Watts (Penn.) 552; Puckett 
 V, Jenkins, 58 Tenn. (2 Baxter) 484; 
 Childress v. Harrison, 57 Tenn. (i Bax- 
 ter) 410; Norville v. Coble, i Lea 
 (Tenn.) 465. Such a sale is a transac- 
 tion between the court and the pur- 
 chaser : Thomason v. Craighead, 32 
 Ark. 391 ; Coffey v. Coffey, 16 Ills. 141 ; 
 Bozza V. Rowe, 30 Ills. 198; Knarr v. 
 Conaway, 42 Ind. 260; Forman v. Hunt, 
 3 Dana (Ky.) 614, 622; Bolgiano z/. Cook, 
 igMd. 375; Sewall j/.Costigan, I Md.Ch. 
 Dec. 208 ; Harrison v. Harrison, id. 33 1 ; 
 Goldsborough v. Ringgold, i Md. Ch. 
 Dec. 239; Andrews v. Scotton, 2 Bland, 
 Ch. (Md.) 629; Gowan v. Jones, 10 
 Sm. & M. (Miss.) 164; Armor v. Coch- 
 rane, 66 Penn. St. 308, 311; Moore v. 
 Shultz, 13 Penn. St. 98, 102 ; Griffith v. 
 Fowler, 18 Vt. 394; and it gives to the 
 purchaser a title which cannot be at- 
 tacked collaterally: O'Hara v. Booth, 
 29 La. Ann. 817; Succession of Fonte- 
 lieu, 28 La. Ann. 638; Matter of Gilmer, 
 21 La. Ann. 589; or by any one who 
 was a party to the decree or to the sale : 
 Sinclair v. Williams, 8 Ired. Eq. (Nor. 
 
 268 
 
CHAP. XIV.J 
 
 SALES BY THE COURT. 
 
 238* 
 
 be for the benefit of the estate that he should not have the 
 conduct of the sale, the conduct may be given to any other 
 party : the right to the conduct of the sale does not depend 
 upon the extent of the interest of parties (c). Where all the 
 parties have leave [238] to bid, a solicitor not concerned for 
 any of them will be appointed to conduct the sale (d). The 
 solicitor in charge of the sale is considered, as between ven- 
 dor and purchaser, to be the agent of all the parties (e). 
 
 Leave to Bid. — The order for sale sometimes provides that 
 the parties shall be at liberty to bid ; if it does not, a party 
 wishing to bid may take out a summons for the purpose at 
 the chambers of the judge to whose court the action or mat- 
 ter is attached (/). A party will not be suffered to bid with- 
 out having previously obtained leave ; although the sale will 
 not necessarily be set aside because a party bid without leave 
 and became the purchaser (^). The principles upon which 
 
 Car.) 235 ; Maple v. Kussart, 53 Penn. 
 St. 348. Judicial sales are not within 
 the policy of the champerty laws; and 
 their validity is not affected by the fact 
 that the land sold was in the adverse 
 possession of a third party : High v. 
 Nelson, 14 Ala. 350; McGill v. Doe, 9 
 Ind. 306; Cook v. Travis, 20 N.Y. 400; 
 Truax v. Thorn, 2 Barb. (N.Y.) 156; 
 Tuttle V. Jackson, 6 Wend. (N.Y.) 213, 
 224 ; though in Carrol z'. Dowson, 5 
 Cranch, C.C., 5 14, it was held that a sale 
 made by a trustee under a decree of court 
 will not pass the title to land which, at 
 the time of the decree, is actually held 
 adversely by a stranger. See further 
 Tarleton v. Kennedy, 21 La. Ann. 500; 
 Dunbar v. Creditors, 2 id. 727; Kauff- 
 man v. Walker, 9 Md. 229; Rogers v. 
 Holyoke, 14 Minne. 220; Finney v. 
 Steamer Fayette, 10 Mo. 612; Goodell 
 V. Harrington, 76 N.Y. 547.] 
 
 (c) Domville v. Berrington, 2 Y. & 
 C. Ex. 723; Alven v. Bond, F. & K. 
 196, 212; Dixon V. Pyner, 7 Hare, 331 
 Ex parte McGregor, 4 De G. & S. 603 
 Dale V. Hamilton, 10 Hare, App. VII. 
 Knott o. Cottee, 27 Beav. 33; Cobden 
 Maynard, I N.R. 354; Hewitt v. Nan- 
 son, 28 L.J. Ch. 49; 7 W.R. 5; Dan. 
 
 2 
 
 Ch. Pr. 1 153; nor upon the possession 
 of the title-deeds, since every party is 
 bound to facilitate the sale : Knott v. 
 Cottee, ubi supra. [In Worsham v. 
 Freeman, 34 Ark. 55, it was said to be 
 bad practice to appoint the plaintiff in a 
 suit to foreclose a mortgage the com- 
 missioner to sell the mortgaged prop- 
 erty. But see Teel v. Yancey, 23 Gratt. 
 (Va.) 690.] 
 
 {d) Dan. Ch. Pr. 1153. 
 
 {/) Dalby v. PuUen, I Russ. & M. 
 296. 
 
 (/) Upon notice to the other parties : 
 Hooper v. Goodwin, Coop. G. 95; Wil- 
 liams V. Attenborough, Turn. & R. 70, 
 76; Seton, 1396; Dan. Ch. Pr. 1 160. 
 The Partition Act, 1868 (31 & 32 Vict, 
 c. 40), expressly provides that the Court 
 may allow any of the parties interested 
 in the property to bid at a sale under 
 the act : see s. 6 of the act. 
 
 {g) Elworthy v. Billing, 10 Sim. 98; 
 Wilson V. preenwood, ib. loi, n. [A 
 sale made by order of court under a 
 trust deed given to secure a debt will 
 not be set aside, although the creditor 
 bought in the estate for less than his 
 debt, and there was no other bidder, if 
 the sale was fairly conducted, and the 
 169 
 
239* SALES BY THE COURT. [PART I. 
 
 the Court grants or refuses leave to the parties to bid appear 
 from the judgment in Tennant v. Trenchard {It). There a 
 motion of the plaintiff, a trustee, for leave to bid, was op- 
 posed by some of the beneficiaries, and Lord Hatherley, L.C., 
 in refusing the motion, on appeal, with costs, observed : 
 " The cases where liberty to bid has been refused are mostly 
 cases of solicitors, the reason of the rule being that a solicitor 
 must have acquired much information, and that the Court 
 could feel no security that he would do his duty and com- 
 municate this information, so as to raise the price, if he had 
 a prospect of becoming the purchaser. But the reason of the 
 rule applies to trustees as strongly as to solicitors ; and 
 though the plaintiff has really suffered great hardship [239] 
 in this case, he must be considered to have considerable 
 knowledge of the estate, which is of a very peculiar charac- 
 ter, part of it consisting of a canal and of the business of the 
 canal. It has been said that his bidding will be an advantage 
 to the sale, as, the more bidders there are, the better chance 
 there will be of a good sale ; but, on the other hand, the 
 knowledge that the trustee was a bidder might keep others 
 away, as they might consider that he would bid to the utmost 
 value of the property, and then, if any one else bid more, 
 
 bid was not so grossly inadequate as to N.J. Eq. (3 Stockt.) 423; Lansing v. 
 
 call for the interference of the court : McPherson, 3 Johns. Ch. (N'.Y.) 424 ; 
 
 Hitz V. National Ins. Co., 3 McArthur Mott v. Walkley, 3 Edwards Ch. (N.Y.) 
 
 (D.C.) 170. And in Gurney's Succes- 590; Pierce v. Kneeland, 7 Wise. 224. 
 
 sion, 14 La. Ann. 622, and McBride v. A purchase by a trustee for the com- 
 
 Longworth, 14 Ohio St. 349, it was held plainants at a sale made under a decree 
 
 that a party to the suit who becomes a irregularly obtained by them will not be 
 
 purchaser at the sale is entitled to the sustained : Goff v. Robbins, 33 Miss, 
 
 same protection as any other purchaser. 153. Where trustees who were directed 
 
 The same rule was maintained in Black- to sell so much of certain land as would 
 
 more v. Shelby, 8 Humph. (Tenn.) 439; pay a specified debt sold the land piece- 
 
 Elrodz/. Lancaster, 2 Head (Tenn.) 571. meal at different times, and themselves 
 
 But a purchase by the creditor for whose became the purchasers at very inade- 
 
 benefit the sale was ordered will be re- quate prices, and it appeared that the 
 
 garded with suspicion, and may be set sales were made under a general im- 
 
 aside if made for a grossly inadequate pression in the neighborhood that the 
 
 price, or if there has been any unfair- land had previously been disposed of at 
 
 ness at the sale, or any advantage taken private sale, the sales'Vere set aside by 
 
 of the debtor or the owner of the prop- the court in Quarles v. Lacey, 4 Munf. 
 
 erty sold. Postca, p. 239, nn.y, and k; (Va.) 251.] 
 
 p. 248, 11. ?. And see Littell w. Zuntz, {h) L.R. 4 Ch. 537; 38 L.J. Ch. 
 
 2 Ala. 256; Campbell -u. Gardner, 11 65i. 
 
 270 
 
CHAP. XIV.] 
 
 SALES BY THE COURT. 
 
 239 
 
 would leave it. The rule is that, if those who are interested 
 in the estate insist that a trustee ought not to be allowed to 
 bid, the Court will certainly give so much weight to their 
 wishes as to say that, until all other ways of selling have 
 failed, he shall not be allowed to buy. But if the Court is 
 satisfied that no purchaser at an adequate price can be found, 
 then it is not impossible that the plaintiff may be allowed to 
 make proposals and to become the purchaser (z)." In gen- 
 eral, leave to bid will not be given to the person who has the 
 conduct of the sale (7), and the solicitor to a party will not 
 have leave to bid, if his client would not ; but a solicitor will 
 not be disqualified from purchasing by the mere fact of his 
 name appearing upon the particulars of sale as that of a per- 
 son from whom copies of the particulars can be obtained (/§•). 
 
 («') L.R. 4 Ch. 547; cf. Campbell v. 
 Walker, 5 Ves. 678, 682 ; Dean v. 
 Farmer, 32 Beav. 327 ; and Geldard v. 
 Randall, 9 Jur. 1085, where leave to bid 
 was refused an administrator : see also 
 Dart, 1 195. 
 
 (7) Sidny v. Ranger, 12 Sim. 118. 
 [The commissioner appointed to make 
 a judicial sale cannot himself become 
 the purchaser : McConnel v. Gibson, 
 12 Ills. 128; Teel V. Yancey, 23 Gratt. 
 (Va.) 690. If the person appointed to 
 make the sale becomes the purchaser 
 either directly or indirectly, this fact of 
 itself " creates such a presumption of 
 fi-aud as requires the sale to be vacated, 
 if application is made in proper time " : 
 Krusej). Steffens, 47 Ills. 112, 114. See 
 antea, p. 4, u. 2; Michoud v. Girod, 
 4 Howard, 503 ; Prevost v. Gratz, 6 
 Wheaton, 481; Wormley f. Wormley, 
 8 Wheaton, 421 ; Ringo v. Binns, 10 
 Peters, 269; Oliver v. Piatt, 3 Howard, 
 333 ; Saltmarsh v. Beene, 4 Porter 
 (Ala.) 283; Rogers v. Lockett, 28 Ark. 
 290; White V. Ward, 26 Ark. 445; Im- 
 boden v. Hunter, 23 Ark. 622; Mercer 
 I-. Newsom, 23 Ga. 151; Bond v. Wat- 
 son, 22 Ga. 637; Nelson v. Hayner, 66 
 Ills. 487; Martin v. Hargadine, 46 Ills. 
 322; Miles -o. Wheeler, 43 Ills. 123; 
 Potter V. Smith, 36 Ind. 231; Ely v. 
 Horine, 5 Dana (Ky.) 398; Pairo v. 
 
 27 
 
 Vickery, 37 Md. 467; Smith v. Towns- 
 hend, 27 Md. 368; Hull v. Voorhis, 45 
 Mo. 555; Allen z/. Ranson, 44 Mo. 263; 
 Grumley v. Webb, id. 444; Thornton v. 
 Irwin, 43 Mo. 153; Yeaskel v. Litch- 
 field, 13 Allen (Mass.) 417; Estate of 
 Millenovich, 5 Nevada, 161 ; Remick 
 z^. Butterfield, 11 Foster (N.H.) 70; 
 Obert V. Hammel, 18 N.J. Law, 74, 81; 
 Wright V. Wright, 7 id. 175; Terwilli- 
 ger V. Brown, 44 N.Y. 237; Fellows v. 
 Fellows, 4 Cow. (N.Y.) 682; Beeson v. 
 Beeson, 9 Penn. St. 279,297; Hugerw. 
 Huger, 9 Rich. Eq. (So. Car.) 217, 225; 
 Wiggins, Ex parte, I Hill (So. Car.) 
 Ch. 353; Field z/. Arrowsmith, 3 Humph. 
 (Tenn.) 442; Hamblin v. Warnecke, 
 3 1 Texas, 91. In McCelvey w. Thomson, 
 7 Sq. Car. 185, a purchase made' by a 
 solicitor in the cause for the benefit of 
 himself and the commissioner making 
 the sale was set aside without proof of 
 fraud, on the ground that the position 
 and duties of these parties were incom- 
 patible with their becoming purchasers. 
 And a purchase by one who, through 
 collusion with the officer making the 
 sale, obtains the property at an inade- 
 quate price, will not be sustained: 
 Dutcher -u. Leake, 44 Ills. 398; Public 
 School Trustees v. New Jersey R.R. Co., 
 30 N.J. Eq. 494.] 
 
 (/■) Guest V. Smythe, L.R. 5 Ch. 
 
'240 
 
 SALES BY THE COURT. 
 
 [part I. 
 
 The Particulars, Abstract of Title, and Conditions. — It is the 
 duty of the soUcitor having charge of the sale to prepare and 
 bring into chambers the particulars of sale, the abstract of 
 title and the formal conditions of sale. The [240] particu- 
 lars, which may be prepared, if necessary, with the assistance 
 of the intended auctioneer or some other competent person (/), 
 differ from those used on ordinary sales only in that they are 
 intituled in the action or matter and state that the sale is 
 made with the approbation of the judge and pursuant to a 
 judgment or order {in). The abstract of title must by statute 
 be laid before one of the conveyancing counsel of the Court, 
 unless the Court dipense with this being done {ii). With 
 
 551 ; 39 L.J. Ch. 536. [It was held in 
 Salter z;. Dunn, i Bush (Ky.) 311, that 
 neither an attorney who becomes the 
 purchaser at a judicial sale made for the 
 benefit of his client, nor the minor child- 
 ren of such a purchaser, to whom he 
 has conveyed the land in consideration 
 of love and affection, can be regarded 
 as bond fide purchasers for value.] As 
 to the course to be pursued with a view 
 to having a party certified the purchaser 
 who has bid without leave and been 
 declared the purchaser: see Dan. Ch. 
 Pr. 1 160. 
 
 (/) Dan. Ch. Pr. 1 1 54. 
 
 (jii) See forms of particulars, post, 
 p. 294, No. 2. [Only the property de- 
 scribed in the decree and particulars 
 can be sold, though the description be 
 erroneous : Miller v. Kolb, 47 Ind. 220, 
 But the description may l)e by refer- 
 ence to a mortgage upon which the de- 
 cree is made : Conger v. Robinson, 4 
 Sm. & M. (Miss.) 210. But not every 
 variation will avail to relieve the pur- 
 chaser from his bargain ; if he gets sub- 
 stantially what he bought, he must ac- 
 cept compensation for the rest : Weems 
 V. Brewer, 2 Harr. & G. (Md.) 390.] 
 
 («) 15 & 16 Vict. c. 86, s. 56; Gib- 
 son V. Wollard, 5 De G.M. & G. 835; 
 cf. In re Jones's Settled Estates, i Jur. 
 N.S. 817. [The general doctrine is 
 that the purchaser at a judicial sale will 
 not be compelled to pay his money and 
 
 take a title which is substantially defec- 
 tive, unless the sale was merely of the 
 interest or estate of the parties, and was 
 either so expressed in the decree or 
 clearly to be implied from the nature 
 of the sale: Boggs -u. Hargrave, 16 
 Calif. 559; Martin v. Pace, 6 Blackf. 
 (Ind.) 99; Ormsby -■. Terry, 6 Bush 
 (Ky.) 553; Gassen v. Palfrey, 9 La. 
 Ann. 560; Glenn v. Clapp, 11 Gill & J. 
 (Md.) I ; Clark v. Clark, 14 Abbott, 
 Pr. (N.Y.) 299; s.c, 21 How. Pr. 
 (N.Y.) 479; Graham v. Bleakie, 2 Daly 
 (N.Y.) 55; Edney %'. Edney, So Nor. 
 Car. 81; Bolivar -'. Zeigler, 9 So. Car. 
 287. And though it has often been 
 said that a purchaser at a judicial sale 
 buys merely at his own risk, and will be 
 subjected strictly to the rule of caveat 
 emptor, it is believed that the cases in 
 which the doctrine has been maintained 
 were either cases in which the pur- 
 chaser's objection was not fallen until 
 after the confirmation or completion of 
 his purchase, and therefore came too 
 late to be of any avail to him {fostea, p. 
 248, 11. i), or else cases in which the 
 sale was, either expressly or by neces- 
 sary implication, merely of the interest 
 or estate of certain parties. A dilTerent 
 doctrine would certainly be at variance 
 with the great body of the decisions : 
 see Guynn v. McCawley, 32 Ark. 97; 
 Black V. Walton, id. 321; Holmes v. 
 Shaver, 78 Ills. 578; ^^lartin v. Beasley, 
 72 
 
CHAP. XIV.] 
 
 SALES BY THE COURT. 
 
 240* 
 
 the abstract of title the formal conditions of sale (o) are sent 
 to the counsel, who adds any special conditions that he may 
 consider proper in the particular case {/>). 
 
 Appointment at Chambers. — An appointment is afterwards 
 obtained at chambers, at which, among other matters, the 
 time and place of sale are determined ; the auctioneer is 
 appointed, and his remuneration fixed ; the advertisement of 
 the sale, prepared by the solicitor, is signed and issued by the 
 judge's chief clerk ; when deemed necessary, a survey and 
 valuation are ordered, with a view to fixing the reserved bid- 
 ding ; if there is to be a deposit, the person to receive it is 
 
 49 Ind. 280; Barron v. MuUin, 21 
 Minne. 374; Owsley v. Smith, 14 Mo. 
 153; Sebring v. Mersereau, 9 Cow. 
 (N.Y.) 344 ; Rogers v. Horn, 6 Rich. 
 (So. Car.) 361 ; Hously v. Lindsay, 
 10 Heisk. (Tenn.) 651; Capehart -'. 
 Dowery, 10 W. Va. 130. But the pur- 
 chaser is always bound to complete the 
 bargain, if there is shown 2^ frivid facie 
 title, free from reasonable grounds of 
 suspicion: Knight v. Maloney, 4 Hun 
 (N.Y.) 33 ; Watson v. Church, 3 id. 80; 
 s.c, 5 Thomp. & C. (N.Y.) 243; Rog- 
 ers V. McLean, 31 Barb. (N.Y.) 304 ; 
 s.c, 10 Abbott, Pr. (N.Y.) 306; Matter 
 of Cavanagh, 14 Abbott, Pr. (N.Y.) 
 .258; Matter of Browning, 2 Paige 
 (N.Y.) 64; Peterraann v. Turner, 37 
 Wise. 244. See further, as to the right 
 of the purchaser at a sale by order of 
 court to demand a good title or be re- 
 leased from his contract : Smith v. Mor- 
 gan, 21 La. Ann. 577; Chalonz<. Walker, 
 7 La. Ann. 477; McCahill v. Equitable 
 Life Society, 26 N.J. Eq. 531 ; Blakeley 
 V. Calder, 15 N.Y. 617; Noble v. Crom- 
 well, 3 Abbott, App. Dec. (N.Y.) 382; 
 Herbert v. Smith, 6 Lans. (N.Y.) 493; 
 Bogert V. Bogert, 45 Barb. (N.Y.) 121; 
 Grady v. Ward, 20 id. 543 ; Waring 
 V. Waring, 7 Abbott, Pr. (N.Y.) 472; 
 Alvord V. Beach, 5 id. 45 1 ; Spring v. 
 Sandford, 7 Paige (N.Y.) 550; Dunham 
 V. Minard, 4 id. 441 ; Carter v. Walker, 
 2 Ohio St. 339; Banks v. Ammon, 27 
 
 Penn. St. 172. In one case, a sale of 
 the premises having been ordered in an 
 action for partition, the purchaser ob- 
 jected to the title by reason of certain 
 defects in the proceedings. The objec- 
 tion was found to be a good one; and 
 a referee reported that the purchaser 
 should be released from his bargain; 
 but the report was not brought up by 
 either party for nine years. Then the 
 plaintiffs in the partition suit applied 
 to have the sale rescinded, and the pur- 
 chaser's advances returned to him. It 
 did not appear that it was in the power 
 of either party to remedy the defect; 
 and the application was granted, against 
 the objection of the purchaser : Parisen 
 V. Parisen, i Thomp. & C. (N.Y.) 642; 
 s.c, 46 How. Pr. 385.] 
 
 (0) See precedent lY., post, p. 315. 
 
 (/) Dan. Ch. Pr. 1 155-6. [The 
 sale may be ordered to be made for 
 cash or on credit : Darrington v. Bor- 
 land, 3 Porter (Ala.) 9, 12; Mitchell 
 V. McKinney, 6 Heisk. (Tenn.) 83; 
 Loundes v. Chisholm, 2 McCord, Ch. 
 (So. Car.) 455. Affidavits will not be 
 received to show that the terms of sale 
 were different from those reported to the 
 court : Koch v. Purcell, 45 N.Y. Super. 
 Ct. 162. See Cooper z/. French, 52 Iowa, 
 531 ; Mount Pleasant Bank v. Conger, 
 37 Iowa, 474; Ledyard v. Phillips, 32 
 Mich. 13, 19; Hoff V. Crafton, 79 Nor. 
 Car. 592.] 
 
 273 
 
*24I 
 
 SALES BY THE COURT. 
 
 [part I. 
 
 appointed ; and the particulars and conditions of sale are set- 
 tled for printing {q). 
 
 The Place of Sale. — The sale will be directed to be held in 
 whichever appears more advantageous, London or the coun- 
 try (r). As a rule, an affidavit by the intended auctioneer or 
 some other competent person, as to the advisability of the 
 proposed place and [241] time^ of sale, and also of the pro- 
 posed mode of lotting, is required {s). 
 
 {q) lb. 1156-7. As to the reserved 
 bidding, see ante, pp. 91, 140 ; Ord. 16 
 July, 1851, r. 2; Cons. Ord. XXXV., 
 r. 61. 
 
 {r) Ord. 16 July, 1 85 1, r. I; Cons. 
 Ord. XXXV., r. 61. [A sale ordered 
 to be made on the premises will not be 
 set aside although not actually made on 
 the premises but fifteen or twenty yards 
 from the boundary line thereof, if it 
 was within eighty yards distance and 
 full view of the dwelling-house, and was 
 supposed to be really upon the prem- 
 ises : Ferguson ij. Franklins, 6 Munf. 
 (Va.) 305; though if the decree di- 
 rected the sale to be made on the prem- 
 ises, and it was advertised to be made 
 there, it would be set aside for irregu- 
 larity if made elsewhere : Talley v. 
 Starke, 6 Gratt. (Va.) 339. It is suffi- 
 cient if the order as to place is substan- 
 tially complied with : Patterson v. Rey- 
 nolds, 19 Ind. 148.] 
 
 (i) Dan. Ch. Pr. 1157; and see form, 
 fast, p. 365. [If there are conflicting 
 claims to the property, and the rights 
 of the parties depend upon facts to be 
 proved at the trial, these should be defi- 
 nitely settled before the property is sold, 
 so that it may bring its full value : Hall 
 V. English, 47 Ga. 511.] For the pur- 
 pose of lotting a preliminary survey will 
 have been made. [If it appears that 
 the property can probably be sold more 
 advantageously by being divided into 
 separate parcels, it should be sold in 
 that manner; and so if it may be neces- 
 
 sary to sell only a part of the property : 
 Stead V. Course, 4 Cranch, 403; Mea- 
 cham V. Steele, 93 Ills. 135; Waldo v 
 Williams, 2 Scam. (Ills.) 470; Sherry 
 V. Nick of the Woods, i Ind. 575 ; 
 Doe V. Smith, 4 Blackf. (Ind.) 228; 
 Blakey v. Abert, i Dana (Ky.) 185; 
 Goode z). Comfort, 39 Mo. 313; John- 
 son V. Garrett, i C. E. Green (16 N.J. 
 Eq.) 31 ; Corles v. Lashley, 15 N.J. 
 Eq. (2 McCarter) 116; Vanduyne v. 
 Vanduyne, 16 N.J. Eq. (l C. E. 
 Green) 93; Ryerson v. Boorman, 7 
 N.J. Eq. (3 Halst.) 167, 640; Merwin 
 z/. Smith, 2 N.J. Eq. (l Green) 1 82; 
 Coxe V. Halsted, id. 311, 319; Ames 
 V. Lockwood, 13 How. Pr. (N.V.) 555; 
 Griffith V. Hadley, 10 Bosw. (N.Y.) 
 587; Mohawk Bank v. Atwater, 2 Paige 
 (N.Y.) 54; American Ins. Co. v. Oak- 
 ley, 9 Paige (N.Y.) 259; Woods v. 
 Monell, I Johns. Ch. (N.Y.) 503. It 
 is for the chancellor who orders the sale 
 to determine whether the land shall be 
 sold as a whole or in parcels, and his 
 determination will not be revised on 
 appeal unless plainly erroneous : Wal- 
 lace V. Feely, 61 How. Pr. (N.Y.) 225; 
 Long V. Weller, 29 Gratt. (Va.) 347. 
 If the order is that the premises be sold 
 as a whole, it must be complied with : 
 Jarboe v. Calvin, 4 Bush (Ky.) 70; 
 Babcock v. Perry, 8 Wise. 277. A sale 
 will not always be set aside merely be- 
 cause it was not made in separate par- 
 cels, if there was no fraud, and no one 
 has been prejudiced by the mode of sale 
 
 [' The fact that a sale of trust property was made on the day of the state elec- 
 tion is not of itself a sufficient reason for setting aside the sale : Bank of Commerce 
 V. Lanahan, 45 Md. 396. But see King v. Piatt, 37 N.Y. 155.] 
 
 274 
 
CHAP. XIV. J 
 
 SALES BY THE COURT. 
 
 241' 
 
 The Auctioneer. — Any one may be appointed to act as the 
 auctioneer ; and a person appointed to sell by auction under 
 an order of the Court may do so without being licensed as an 
 auctioneer (i). All or one or more of the members of a firm 
 may be appointed (u). Where the competency of the in- 
 tended auctioneer is not known at chambers, an affidavit of 
 his fitness will be required (v). No definite rule can be laid 
 down as to what the auctioneer's remuneration will be. It 
 varies according to the magnitude of the property, the trou- 
 ble and expense of preparing for the sale, and the position of 
 the auctioneer ; sometimes it consists of a commission on 
 each lot sold, with a fixed sura for each lot unsold, sometimes 
 of a fixed sum for the entire sale, or for each lot sold or 
 bought in (w). 
 
 The Advertisement. — The advertisement may be directed 
 to be inserted in a variety of papers, and to be repeated a 
 number of times (x). It is usually only ordered to be inserted 
 
 (v) lb. 1157. (See form, post, p. 
 366.) 
 
 (w) Ibid. 
 
 \x) Cons. Ord. XXXV. r. 35. [The 
 report of a judicial sale should show 
 that advertisement was made as ordered : 
 Tibbs z/. Allen, 27 Ills. 119; Roger v. 
 Ochiltree, 4 Houston (Del.) 452; Clark 
 ■u. Bell, 4 Dana (Ky.) 15. A sale made 
 without the prescribed advertisement 
 will be set aside : Williams v. Woodruff, 
 I Duvall (Ky.) 257; Vanbussum v. 
 Maloney, 2 Met. (Ky.) 550; Wheatley 
 V. Terry, 6 Kansas, 427; Glenn v. Wot- 
 ton, 3 Md. Ch. Dec. 514; Lefevre v. 
 Laraway, 22 Barb. (N.Y.) 167; Bailey 
 V. Bailey, 9 Rich. Eq. (So. Car.) 392. 
 If the person authorized to make a sale 
 has a discretion in regard to giving no- 
 tice of the time and place of his sale, 
 equity will relieve against any abuse of 
 this discretion : Montague v. Dawes, 14 
 Allen (Mass.) 369, 374 ; Cummins z/. Lit- 
 tle, i6N.J.Eq. (i C. E. Green) 48; Hoff- 
 man V. Anthony, 6 R.I. 282. But a 
 mere error of judgment by the officer 
 making the sale will not, in the absence 
 of any fraud or unfairness, be regarded : 
 Vanduyne -v. Vanduyne, 16 N.J. Eq. 
 
 adopted: Gillespie v. Smith, 29 Ills. 
 473; Johnson v. Hambleton, 52 Md. 
 378; Osman v. Traphagen, 23 Mich. 
 80; Clark V. Stetson, 36 Mich. 482; 
 Lucas V. Moore, 2 Lea (Tenn.) i ; 
 Dickert v. Weise, 2 Utah, 350; Johns 
 V. Slack, 2 Hughes, C.C., 467; Swen- 
 son V. Halberg, I McCrary, C.C., 96. 
 The general rule, however, is that dis- 
 tinct lots of land should be offered for 
 sale separately, unless it is evident that 
 they will bring a larger price if sold to- 
 gether : Meeker v. Evans, 25 Ills. 322 ; 
 Martin v. Hargadine, 46 Ills. 322; Wal- 
 ters V. Hargrove, 61 Ga. 267. But if 
 the premises taken together constitute 
 but one property, and have been so 
 used and described, they may be sold as 
 one property. See Burton v. Ferguson, 
 69 Ind. 4S6; Kellogg v. Carrico, 47 
 Mo. 157; Anderson v. Austin, 34 Barb. 
 (N.Y.) 319; Lamerson v. Marvin, 8 id. 
 9 ; Whitbeck v. Rowe, 25 How. Pr. 
 (N.Y.) 403; Wolcott V. Schenck, 23 
 id. 385; Woodhull v. Osborne, 2 Ed- 
 wards Ch. (N.Y.) 615; Wilmer v. At- 
 lanta Railw. Co., 2 Woods, C.C, 447.] 
 
 (/) See ante, p. 10. 
 
 (») Dan. Ch. Pr. 1157, note (/). 
 
 275 
 
"242 
 
 SALES BY THE COURT. 
 
 [part I. 
 
 once in the Gazette (y). Only one advertisement will be 
 issued, unless for some special reason it be thought necessary 
 to issue a second, or further advertisements {z). Publicity is 
 also given to the sale by means of posting bills, prepared un- 
 der the direction of the solicitor or auctioneer («). 
 
 Vahiation. — The valuation, where there is to be one, is 
 generally [242] directed to be made by the anctioneer, whose 
 opinion is at the same time required as to the price which 
 the property ought to fetch. The valuation and opinion 
 are veriiied by an affidavit, which should state the respec- 
 tive amounts by reference to an exhibit only, so that the 
 amounts may not be disclosed by the affidavit when filed (b). 
 The reserved bidding is fixed at a subsequent appointment at 
 chambers, at which it will be necessary to produce the exhibit 
 and an office copy of the affidavit. 
 
 Security to Account for Deposit. — The person appointed to 
 receive the deposit, usually the auctioneer, has, as a rule, to 
 
 (l C. E. Green) 93. The court must 
 be satisfied that sufficient notice has 
 been properly given : Moore v, Titman, 
 33 Ills. 358, and may set aside a sale, 
 although its order of notice has been 
 literally complied with, if in fact suffi- 
 cient notice was not given : Craig t. 
 Fox, 16 Ohio, 563. But if this has been 
 substantially accomplished, the sale will 
 be sustained : Garrett v. Moss, 20 Ills. 
 549; Farmers' Bank i/. Clarke, 28 Md. 
 145 ; Gibbs v. Cunningham, I Md. Ch. 
 Dec. 44; Parratt v. Neligh, 7 Nebraska, 
 456. It was held in Crompton v. Bald- 
 win, 42 Ills. 165, that the neglect of a 
 master in chancery to fulfil a promise 
 which he had made to give to a person in- 
 terested in the premises to be sold actual 
 personal notice of the day of sale is not 
 such an official delinquency as to lead 
 the court to set aside a sale otherwise 
 regularly made. So in Parkhurst v. 
 Cory, II N.J. Eq. (3 Stockt.) 233, a 
 resale was refused to a party to a fore- 
 closure suit who averred that he was too 
 blind to read the newspapers, and there- 
 fore did not see the advertisement and 
 had no notice of the sale, and that 
 by reason of his absence the prop- 
 
 erty brought much less than its value.] 
 
 (><) As to stamp on advertisement, 
 see Dan. 1157, note {s). 
 
 (2) Cons. Ord. XXXV. r. 35. [Only 
 a reasonable notice is to be required : 
 Darrington v. Borland, 3 Porter (Ala.) 
 12.] 
 
 (a) Dan. Ch. Pr. 1 159. And, of 
 course, by distribution of the particu- 
 lars or catalogue. [The advertisement 
 should describe the property with suffi- 
 cient particularity to identify it, and to 
 show bidders what it is that is offered 
 to them ; Rathbone v. Clark, 9 Abbott 
 Pr. (N.Y.) 66, note ; Jackson v. Harris, 
 3 Cow. (N.Y.) 24 1 ; Kauffman -'. Walker, 
 9 Md. 229 ; Hodgson v. Farrell, 15 
 N.J. Eq. (2 McCarter) 88 ; Merwin 
 V. Smith, 2 N.J. Eq. (i Green) 1S2; 
 Den V. Zellers, 2 Halst. (N.J. Law) 
 153; Fenner v. Tucker, 6 R.I. 551; 
 Hoffinan v. Anthony, id. 282. The 
 advertisement should contain nothing 
 calculated to mislead the purchasers, or 
 to give an exaggerated idea of the value 
 of the property : Veeder v. Fonda, 3 
 Paige (N.Y.) 94, 97,] 
 
 {b) Reg. 8 Aug. 1857, r. 13; Dan. 
 Ch. Pr. 1 1 58. For form, izs post. 
 
 276 
 
CHAP. XIV.J SALES BY THE COURT. 243* 
 
 give security duly to account for and pay what he may receive 
 in respect of the deposit (c). This he does, at his choice, 
 either by entering into a recognizance, with one or more sure- 
 ties, in double the amount of the probable deposit-money, or 
 by paying into court to a separate account such sum, usually 
 double the amount of the probable deposit-money, as the 
 judge may approve (d). If he elects to give a recognizance, 
 the draft recognizance is prepared by the solicitor (e), and, 
 on being approved at chambers, is engrossed on parchment 
 and acknowledged by the cognizors before some person author- 
 ized to administer oaths in Chancery. The sureties must also 
 make an affidavit that they are severally worth the sum for 
 which they are bound by the recognizance (/). An office 
 copy of the affidavit is produced to the chief clerk, who signs 
 a memorandum of allowance in the margin of the recogni- 
 zance, which is then sent from chambers to the Enrolment 
 Office and enrolled. If, on the other hand, the [243] person 
 appointed to receive the deposit prefers to give security by 
 paying a sum of money into court, the solicitor takes out a 
 summons for leave to make the payment, an order is drawn 
 up by the registrar, and the money is paid into court in the 
 ordinary way. If -desired, directions for the investment of 
 the money will be embodied in the order (g). 
 
 The expense connected with the giving of security is so 
 considerable that security is not often required on sales of 
 small properties, or where the parties are all sui juris and 
 agree to waive it {Ji) ; and, to save the expense of enrolling 
 and vacating the enrolment (?) of a recognizance, it is the 
 practice at some of the chambers to defer sending the recog- 
 nizance to the Enrolment Office till the time fixed for the 
 payment of the deposit into court has expired, when, if such 
 payment be duly made, the enrolment becomes, of course, 
 unnecessary (_/'). 
 
 (0 Ord. i6 July, 1851. r. 3; Cons. {d) Dan. Ch. Pr. 1158. 
 
 Ord. XXXV. r. 61. [InNorth Carolina {e) See Dan. Forms, No. 1117. 
 
 the parties entitled to the proceeds of a (y) lb. No. 11 18. 
 
 judicial sale made by a commissioner (^f) Dan. Ch. Pr. 1159- 
 
 appointed to sell the property can recov- (Ji) Seton, 1397. 
 
 er them only by an action for that pur- (j) See infra, p. 247. 
 
 pose : Smith J/. Moore, 79 Nor. Car. 82.] (/) Dan. Ch. Pr. 1159, note («')• 
 
 277 
 
*244 SALES BY THE COURT. [PART I. 
 
 Some time before the sale, a print of the particulars and 
 conditions, signed by the chief clerk, a note, signed by him, 
 of the reserved bidding, if any, under a sealed cover, forms 
 of a bidding paper, and of an affidavit of the result of the 
 sale, and also printed directions, as to keeping the reserved 
 bidding secret, as to the mode of conducting the sale, and as 
 to returning the particulars, conditions and affidavit of the 
 result, are forwarded to the auctioneer by the chief clerk, 
 either directly or through the solicitor {k). 
 
 Secrecy as to Reserved Bidding. — By these directions the 
 auctioneer is instructed not to [244] open the note of the 
 reserved bidding until the time of sale, and not to divulge the 
 reserved bidding to any one, either at or at any time after 
 the sale. Where, however, after an ineffectual attempt to 
 sell the property by auction, the reserved bidding was di- 
 vulged by the auctioneer's clerk, contrary to the expressed 
 instructions given to his master. Lord Romilly, M.R., held 
 a purchaser at the reserved price to his bargain and, in giv- 
 ing judgment, said : " It is very usual that the reserved bid- 
 ding is known, and it is the constant practice for persons to 
 take it (the property) at the reserved bidding (/)." 
 
 Proceedings at the Sale. — The sale, at which the solicitor 
 should be present (nt), must be conducted in strict accordance 
 
 (i) lb. I160. For forms of direc- (/) Else v. Barnard, 28 Beav. 228; 
 tions to the auctioneer as to the conduct cf. Bousfield v. Hodges, 33 Beav. go ; 
 of the sale, and of bidding paper and Dowle v. Lucy, 4 Hare, 311. The 
 affidavit of the result, see Dan. Forms, chief clerk may use his discretion as to 
 Nos. 1 1 20 ei seq.; 3.nA post, pp. 367- communicating the reserved bidding to 
 370. [A marshal's sale, in proceedings the parties, or any of them, or their 
 to enforce a mortgage, is not valid if solicitors: Ord. 16 July, 1S51, r. 2; 
 made under a wrong interpretation of Cons. Ord. XXXV. r. 6l. Cf. ante, p. 
 the order of the court, even though the 141. [If a party interested in the prop- 
 court confirmed the report of the sale, erty had been informed by the trustee 
 its attention not having been called to appointed to make the sale what was 
 the mistake, nor any issue raised as to the intended reserve, and should be 
 the meaning of the order : Minnesota told by the trustee a few minutes before 
 Co. V. St. Paul Co., 2 Wallace, 609. the sale, that the reserve was very much 
 But the sale is valid if made in conform- less, by reason whereof the interests of 
 ity with the terms of the decree, though such property were prejudiced, the 
 also made under an execution errone- court would not ratify a sale at the 
 ously issued upon the decree : Laven- lesser sum : Cohen v. Wagner, 6 Gill 
 der V. Latimer, 15 Ills. 80.] (Md.) 236.] 
 
 (w) Dan. Ch. Pr. 1161. 
 278 
 
CHAP. XIV.J 
 
 SALES BY THE COURT. 
 
 245' 
 
 with the chief clerk's directions («). The auctioneer must be 
 careful to make the proper entries in the bidding paper him- 
 self, and to see that it is duly signed by the purchaser {0). 
 It has been said, indeed, that the Statute of Frauds does not 
 extend to sales by the Court (/) ; but in practice the pur- 
 chaser is always required to sign the bidding paper. Where 
 there is a reserved bidding, if no one bids so much as the 
 reserve, the auctioneer must declare that the property is not 
 sold, but has been bought in on account of the persons inter- 
 ested in or entitled to the property {q). The Court does not 
 bind [245] itself by a condition to accept the highest bid- 
 ding (r) ; but, in the absence of special circumstances, the 
 best bidder is, of course, declared the purchaser {s). In a 
 case where the offer of the highest bidder was rejected, in 
 the belief that he was of insufficient means, and the next bid- 
 der was declared the purchaser, the Court did not treat the 
 sale as void, but seems to have considered that the highest 
 
 («) A sale in a manner different 
 from that directed by the judgment of 
 the Court, unperfected by conveyance, 
 will be treated as a nullity: Annesley 
 V. Ashurst, 3 P. Wms. 282; Ex parte 
 Hughes, 6 Yes. 617; Bovven v. Evans, 
 I J. & L. 178, 266; Dart, 1196. [It is 
 not necessary that the parties to the 
 suit should have the same notice of the 
 order to the auctioneer as of the pre- 
 liminary process : Succession of McCall, 
 28 La. Ann. 713; Hall v. Urquhart, II 
 N.J. Eq. (3 Stockt.) 318; Babcock v. 
 Perry, 8 Wise. 277; McCotter -v. Jay, 
 30N.Y. 80; Francis v. Church, i Clarke 
 (N.Y.) 475.] 
 
 {0) See forms of bidding paper, post, 
 p. 368. [The sale may be set aside 
 upon proper terms if it appears that the 
 highest bid was made under a mistake : 
 New Jersey Sinking Fund Commission- 
 ers z/. Peter, 32 N.J. Eq. 113; but not 
 for a mere mistake in a matter of law : 
 Mott V. Shreve, 25 N.J. Eq. 438. The 
 purchaser becomes a party to the suit 
 and subjects himself fully to the juris- 
 diction of the court : Comstock v. Pur- 
 ple, 49 Ills. 15S; Coulter v. Herrod, 
 27 Miss. 685; Kable v. Mitchell, 9 W. 
 
 Va. 492. See Roberts v. Clelland, 82 
 Ills. 538.] 
 
 (/) Att.-Gen. v. Day, i Ves. 218; 
 Lord V. Lord, i Sim. 503. [Halleck v. 
 Guy, 9 Cahf. 181; Hutton v. Williams, 
 35 Ala. 503; Stewart v. Garvin, 31 Mo. 
 36; Hegeman v. Johnson, 35 Barb. 
 (N.Y.) 200; National Ins. Co. v. 
 Loomis, n Paige (N.Y.) 431; Fulton 
 V. Moore, 25 Penn. St. 468; King v. 
 Gunnison, 4 Penn. St. 171.] 
 
 (?) Ord. 16 July, 1851, r. 2. 
 
 {r) In re Costello's, 2 J. & L. 244. 
 
 (J) I Dav. 595. [If the master ap- 
 pointed to sell land reports a subse- 
 quent written bid in advance of the 
 highest bid at the sale, the court may 
 accept the advanced offer, and hold the 
 party making it to its execution : Griffin 
 V. Warner, 48 Calif. 383; Demaray v. 
 Little, 19 Mich. 244, 247; Wright v. 
 Cantzon, 31 Miss. 514, 517; Hays's Ap- 
 peal, 51 Penn. St. 58; Allen v. East, 
 4 Baxter (Tenn.) 30S. In Orr v. Oir, 
 7 So. Car. 381, it was held that a judi- 
 cial sale should not be set aside on a 
 mere motion against a purchaser who 
 has complied with the conditions of the 
 sale.] 
 
 79 
 
*246 SALES BY THE COURT. [PART I. 
 
 bidder should have moved that he, instead of the other, might 
 be declared the purchaser {t). 
 
 Puffers. — Although, by the 8th section of the Sale of Land 
 by Auction Act, 1867 {u), nothing in that act contained is to 
 affect " any sale of land made under or by virtue of any order 
 of the High Court of Chancery," it can hardly be doubted 
 that the employment of a puffer (v) would not now be per- 
 mitted upon a sale by the Court any more than upon any 
 other sale. It was said in a modern case {w) that " the Court 
 ought not to be less strict as to sales under its own order 
 than as to sales out of Court " ; and in a more recent case (x) 
 the 5th section of the act {y) was directly applied to a sale by 
 the Court, and, the conditions stating that the sale was sub- 
 ject to a reserved bidding, that was held to preclude the ven- 
 dor from employing a person to bid up to the reserve, he not 
 having expressly stipulated for the right to do so. It had 
 long before been decided that if a person without authority 
 interfered and bid at the sale, though only to prevent a sale 
 at an undervalue, the Court would [246] hold him to his pur- 
 chase (z). It may be observed also that by the rules of the 
 Court the reserved bidding, where there is one, must be made 
 one of the conditions of sale under which the property is 
 sold {a) ; and that, in his affidavit of the result, the auctioneer 
 has to depose to having conducted the sale in a fair, open 
 and candid manner {b). 
 
 (/) Hughes V. Lipscombe, 6 Hare, sale will not be confirmed if the conduct 
 
 142; Dait, H99. of the officer making it has been im- 
 
 («) See ths various provisions of proper or oppressive : Baring v. Moore, 
 
 the act set out ante, pp. 136, 137. 5 Paige (N.Y.) 48; Tiernan v. V/ilson, 
 
 (v) For the definition of "puffer," 6 Johns. Ch. (N.Y.) 41 1; Johnson v. 
 
 see antu, p. 131. Garrett, 16 N.J. Eq. (i C. E. Green) 31. 
 
 {w) Dimmock v. Hallett (1866); See Fergus z'. Wood worth, 44 Ills. 374; 
 
 see ante, p. 140. Walker v. Schum, 42 Ills. 462. It was 
 
 (x) Gilliat V. Gilliat (1869); see said in Pickersgill t/. Brown, 7 La. Ann. 
 
 ante, p. 138. 298, that the law will not permit ju- 
 
 (7) See ante, p. 136. dicial sales to be made lotteries at the 
 
 (z) Nelthorpei;. Pennyman, I4Ves. bidding and sources of confusion and 
 
 517; see I Dav. 597. The person who strife afterwards. The fact that one who 
 
 interfered in this case was the soUcitor has taken a fraudulent conveyance of 
 
 of one of the parties. the land forbids its sale under the de- 
 
 {a) Ord. 1 6 July, 1851, r. 2. cree does not lessen the obligation to 
 
 {b) See form, post, p. 369. [The conduct the sale with fairness ; Busey v. 
 
 280 
 
CHAP. XIV.J SALES BY THE COURT. 247* 
 
 Bidding by Incompetent Person (c). — In a case where it was 
 •discovered that the person who had been declared the highest 
 bidder was insane at the time of bidding the Court refused to 
 let the next bidder stand as purchaser, although all the par- 
 ties consented ; but ordered a resale {d). It has been sug- 
 gested that the Court might have treated the second best bid 
 as an offer to purchase by private contract (<?). 
 
 The ordinary conditions of sale fix a time at which the 
 chief clerk will certify the result of the sale. To enable the 
 chief clerk to do this, the auctioneer has, after the sale, to 
 make an affidavit of the result (/) ; and of this affidavit an 
 office copy, with, as exhibits, the bidding paper and particu- 
 lars and conditions forwarded to the auctioneer by the chief 
 clerk, must be left at chambers at least a clear day before 
 the day appointed for the result to be certified (g). A cer- 
 tificate of the result is, upon the day appointed, settled and 
 signed by the chief clerk, and, at the expiration of four clear 
 days, adopted and signed by the judge, and filed, unless an 
 application to discharge or vary it is made in the inter- 
 val {k). 
 
 [247] The affidavit of the result of the sale is equally neces- 
 sary, when the attempt to sell has failed {i). 
 
 Payment into Court of Deposit. — Where a deposit has been 
 received at the sale, the certificate appoints a day for pay- 
 
 Hardin, 2 B. Mon. (Ky.) 407. A sale 18 Howard, 143, 147; Brown v. Red- 
 made in violation of a promise to ad- wine, 16 Ga. 67; Russell v. Richards, 
 journ to a future day may be set aside ^ II Maine, 371 ; Farmer's Bank v. 
 upon seasonable application of the party Clarke, 28 Md. 145 ; Warren v. Leland, 
 injured by the delay : Mutual Life Ins. 9 Mass. 265 ; Tinkom v. Purdy, 5 Johns. 
 Co. z;. Goddard, 33 N.J. Eq. 482 ; Wil- (N.Y.)345; Lantz i-. Worthington, and 
 liamson v. Dale, 3 Johns. Ch. (N.Y.) Hughes v. Worthington, 4 Penn. St. 
 290; but this relief will not be given if 153 ; Pier v. Storm, 37 Wise. 247.] 
 the violation of the promise was without (c) Cf. anie, pp. 122 el seq. 
 fault : William v. Doran, 23 N.J. Eq. (</) Blackbeard v. Lindigren, I Cox, 
 385. In Ward v. Hollin, 14 Md. 158, it 205. 
 
 was held that the trustee appointed by (J) Dart, 11 99, note (z). 
 
 the court to make the sale has no au- (/) See form, post. 
 
 thority to agree to delay it, and accord- {£) Reg. 8 Aug. 1857, r. 15; Dan. 
 
 ingly that such an agreement by him Ch. Pr. Ii6i, 1162. 
 cannot be enforced. But the power to (K) Cons. Ord. XXXV. rr. 48, 49; 
 
 adjourn the sale has generally been Morgan, 153. 
 maintained: Blossom v. R.R. Co., 3 {i) Dan. Ch. Pr. 1162. 
 
 Wallace, 196, 209; Richards s". Holmes, 
 
 281 
 
*248 SALES BY THE COURT. [PART I. 
 
 ment of it into court ; ^ and if it is not paid in by that day, a 
 summons may be taken out and served on the recipient that' 
 he may be ordered to pay it into court within a limited time 
 and to pay the costs of the appUcation, and the order may 
 then be drawn up, endorsed, served and enforced Hlce other 
 orders directing a payment to be made ; or, by consent, in- 
 stead of a separate order, a direction for such payment may 
 be added to the purchaser's order for the payment into court 
 of the balance of his purchase-money (J). In practice the 
 auctioneer hands over the deposit to the solicitor, for the lat- 
 ter to pay it into court {k). 
 
 As soon as he has paid the deposit into court, or, where no 
 deposit has been paid at the sale, immediately after the day 
 appointed for the result to be certified, the auctioneer or 
 other person who has given security to account for the de- 
 posit may apply by summons to have his recognizance va- 
 cated, or the sum which he paid into court as security paid 
 out to him again (/). This application must be supported by 
 the production of an office copy of the chief clerk's certificate 
 of the result of the sale, and office copies of the recognizance 
 and the Accountant General's certificate of the payment into 
 court of the deposit, if any {m). The enrolment of the re- 
 cognizance will be vacated by the Clerk of Enrolments on 
 production of the order {71). 
 
 [248] His security being liberated and his charges {0) paid, 
 the auctioneer has, as a rule, no further interest in the sale. 
 But circumstances may still occur which will again render 
 his services necessary ; for the sale is not yet complete, and 
 the proceedings may still be reopened.^ 
 
 (y) Seton, 1187; Dan. Ch. Pr. posits received by the person appointed 
 
 1 162. to sell. 
 
 {k) See ante, p. 178, note (i). (m) Dan. Ch. Pr. 11 62-3. 
 
 (/) The affidavit of the result of the («) //'.1 163. 
 
 sale sets forth the particulars of any de- (tj) See supra, p. 241. 
 
 [' If the highest bidder refuses to pay the deposit or to sign a memorandum of 
 the purchase, when the conditions of sale provide that the biddings shall remain 
 open until the payment of the deposit, the master making the sale will proceed to 
 resell without a new order, as if no sale had been made : liewlett i-. Davis, 
 3 Edwards Ch. (X.V.) 338.] 
 
 [^ A sale of real estate under an order of a court of chancery is not complete 
 until It has Ijcen confirmed by the court; and the purchaser derives no benefit 
 
 282 
 
CHAP. XIV.] SALES BY THE COURT. 248* 
 
 Reopening the Biddings. — The certificate of the result of 
 the sale is not absolute until eight clear days have elapsed 
 
 from his bid until such confirmation. This confirmation will depend upon the 
 sound equitable discretion of the court. If it is refused, the light of the purchaser 
 fails: Williamson v. Berry, 8 Howard, 495, 546; Satcher v. Satcher, 41 Ala. 26, 35; 
 McSwean v. Faulks, 46 Ala. 610; Wilson v. Wilson, 36 Ala. 655; Sturdy v. Jaco- 
 way, 19 Ark. 499, 516; Thorn v. Ingram, 25 Ark. 52; Vandyke v. Johns, i Del. 
 Ch. 93; Covington & Lexington R.R. Co. v. Bowler, 9 Bush (Ky.) 468; Taylor v. 
 Gilpin, 3 Met. (Ky.) 544; Busey v. Hardin, 2 B. Mon. (Ky.) 407; Dickinson v. 
 Talbot, 14 id. 60; Forman v. Hunt, 3 Dana (Ky.) 622; Halleck v. Guy, 9 Calif. 
 181, 195; Southern Bank v. Humphreys, 47 Ills. 227; Renfrew v. Pearce, 68 Ills. 
 125; Mulford V. Beveridge, 78 Ills. 455; Mulvey v. Carpenter, id. 580; Sowards 
 V. Pritchett, 37 Ills. 517; Myers v. Raymond, 5 Fla. 516, 526; Mills v. Ralston, 
 10 Kansas, 2o6;Koehler v. Ball, 2 Kansas, 160; Austin v. Austin, 50 Maine, 74; 
 Wagner v. Cohen, 6 Gill (Md.) 97; Osman v. Traphagen, 23 Mich. 80, 85; 
 People V. Circuit Judge, 19 Mich. 296; Mitchell v. Harris, 43 Miss. 314; Learned 
 V. Matthews, 40 Miss. 210; Gowan v. Jones, 10 Sm. & M. (Miss.) 164; Tooley i/. 
 Kane, i Sm. & M. Ch. (Miss.) 518; McVey v. McVey, 51 Mo. 406; Castleman v. 
 Relfe, 50 Mo. 583; Neiman v. Early, 28 Mo. 475; Phillips v. Dawley, i Nebraska, 
 320; Freeman v. Munns, 15 Abbott, Pr. (N.Y.) 468; Mason v. Osgood, 64 Nor. 
 Car. 467; Clayton v. Glover, 3 Jones Eq. (Nor. Car.) 371; Ex parte Bost, id. 482; 
 Simmons v. Wood, 45 How. Pr. (N.Y.) 262 ; Hamilton's Estate, Hays' Appeal, 51 
 Penn. St. 59; Robinson's Appeal, 62 Penn. St. 213, 216; Moore v. Shultz, 13 Penn. 
 St. 98, 102; Mathews v, Eddy, 4 Oregon, 225; Wilson v. Shields, 59 Tenn. (3 Bax- 
 ter) 65; Lasellj'.Powell, 7 Coldw. (Tenn.) 277; Walker z/. Walker, 4 Coldw. (Tenn.) 
 300; Webster I'. Hill, 3 Sneed (Tenn.) 333; Owenj/.Owen, 5 Humph. (Tenn.) 352; 
 Jones V. Hollingsworth, 10 Heisk. (Tenn.) 653; Abbott v. Flagg, i id. 742; Mor- 
 ton j*. Sloan, II Humph. (Tenn.) 278; Childress v. Hurt, 2 Swan (Tenn.) 487; 
 Hirshfield w. Davis, 43 Texas, 155; Graham !<. Hawkins, 38 Texas, 628, 632; George 
 V. Watson, 19 Texas, 354; Dancey v. Stricklinge, 15 Texas, 557; Poor v. Boyce, 
 12 Texas, 440; Lynch v. Baxter, 4 Texas, 431; Evans v. Spurgin, 6 Gratt. (Va.) 
 107; Hudgin V. Hudgin, id. 320; Donahoe v. Fackler, 8 W.Va. 249; Kable v. 
 Mitchell, 9 W.Va. 492 ; Woehler v. Endter, 46 Wise. 301 ; Lupton v. Almy, 4 
 Wise. 242. The court may confirm or vacate the sale, but mil not modify its 
 terms, or alter the price bid, and confirm it as thus changed : Benz v. Hines, 3 
 Kansas, 390; Green v. State Bank, 9 Nebraska, 165 ; Ohio Life and Trust Co. v. 
 Goodin, 10 Ohio St. 557. But if the court has confirmed a sale upon a bid the 
 terms of which differed from the order and notice of sale, the purchaser cannot 
 afterwards object to the confirmation on the ground of this variance : Otis's Estate, 
 Myrick's Prob. (Calif.) 222. And though the sale has never been actually con- 
 firmed by the court, yet the parties interested may, by their acts, or by the mere 
 lapse of time after possession and payment, give it validity as against themselves 
 and those claiming under them : Redus u. Hayden, 43 Miss. 614; Learned v. 
 Matthews, 40 Miss. 210; Henderson v. Herrod, 23 Miss. 434; Gowan v. Jones, 10 
 Sm. & M. (Miss.) 164; Fuller v. Van Geesen, 4 Hill (N.Y.) 171 ; Fort v. Burch, 6 
 Barb. (N.Y.) 60 ; Watts v. Scott, 3 Watts (Penn.) 79 ; Tipton v. Powell, 2 Coldw. 
 (Tenn.) 19. The confirmation completes and makes binding the contract of sale; 
 it will not afterwards be vacated for irregularities, or upon the offer of an in- 
 creased price : Nagle v. Macey, 9 Calif 426; Spring v. Kane, 86 Ills. 580; Hess 
 V. Voss, 52 Ills. 472; Mills V. Ralston, 10 Kansas, 206; Todd v. Dowd, I Mete. 
 (Ky.) 281; Andrews v. Scotton, 2 Bland Ch. (Md.) 629; Brown v. Wallace, id. 
 
 283 
 
*248 SALES BY THE COURT. [PART I. 
 
 from the date of its being filed : until that interval has passed, 
 the highest bidder has not become the purchaser with the 
 
 585; Barbee v. Perkins, 23 La. Ann. 331 ; Hotchkiss v. Cutting, 14 Minne. 537; 
 Wilkerson v. Allen, 67 Mo. 502; Ashbee v. Cowell, i Busbee Eq. (Nor. Car.) 
 158; Sked V. Sedgley, 36 Ohio St. 483; Pope v. Frazee, 5 So. Car. 269; Coffin v. 
 Corruth, i Coldw. (Tenn.) 194; Swan v. Newman, 3 Head (Tenn.) 288; Hous- 
 ton V. Aycock, 5 Sneed (Tenn.) 406; James v. Corker, 30 Texas, 617; Kneeland 
 D. Smith, 13 Wise. 591. And though a purchaser will not be compelled to com- 
 plete his purchase until a report of the sale has been made and confirmed, 
 Laverty v. Chamberlin, 7 Blackf. (Ind.) 556, and may in the meantime be dis- 
 charged from his contract for good cause shown, Eakin c. Herbert, 4 Coldw. 
 (Tenn.) 116, yet after the confirmation the purchaser will be held to his bargain, 
 even though there be a failure of title, and cannot, at any rate unless fraud is sub- 
 sequently found to have been practised upon him, be relieved of paying the price 
 on account of previously existing facts: Fore v. McKenzie, 58 Ala. 115; Haral- 
 son i;. Georges, 56 Ala. 295; United States v. Duncan, 12 Ills. 523; Farmers' 
 Bank v. Peter, 13 Bush (Ky.) 591; Huber v. Armstrong, 7 Bush (Ky.) 590; 
 Anderson v. Foulke, 2 Har. & G. (Md.) 346; Barron v. MuUin, 21 Minne. 374; 
 Allen V. Gault, 27 Penn. St. 473; Spence v. Armour, 9 Heisk. (Tenn.) 167; La- 
 sell -'. Powell, 7 Coldw. (Tenn.) 277; Young u. Bowyer, 9 Gratt. (Va.) 336; 
 Threlkelds v. Campbell, 2 Gratt. (Va.) 198; Capehart v. Dowery, lo W.Va. 130. 
 The confirmation is conclusive upon the purchasers unless it was irregularly made, 
 or unless the purchaser was prevented from objecting to it, by misrepresentation, 
 surprise or fraud on the part of those interested in the proceedings ; Brown v. 
 Gilmor, 8 Md. 322. See Montgomery v. Williamson, 37 Md. 421; Krone v. Lin- 
 ville, 31 Md. 138; Cockey v. Cole, 28 Md. 276; Watson v. Hoy, 28 Gratt. (Va.) 
 698. But if the sale was void when made, its invalidity will not be cured by the 
 confirmation : Bethel v. Bethel, 6 Bush (Ky.) 65 ; Todd v. Dowd, i Mete. (Ky.) 
 281 ; Hudgin v. Hudgin, 6 Gratt. (Va.) 320 ; Chase tj. Ross, 36 Wise. 267 ; 
 Campbell v. Smith, 9 Wise. 305. The effect of the confirmation is merely to com- 
 plete the contract; the legal title will not pass to the purchaser until the execution 
 and delivery of a proper deed : Erb v. Erb, 9 Watts & S. (Penn.) 147; Webster v. 
 Hill, 3 Sneed (Tenn.) 333; Massey v. Massey, 4 Harr & J. (Md.) 141; Bennett v. 
 Matson, 41 Ills. 332. See Bibb v. Bishop Cobb's Orphan Home, 6i Ala. 326; 
 Halliburton J/. Sumner, 27 Ark. 460; Myers v. Manny, 63 Ills. 2H; Barlow v. 
 Standford, 82 Ills. 298; Washburn v. Green, 13 La. Ann. 332. Commissioners 
 who have been ordered by the court to make a conveyance according to the terms 
 of a sale made by them need not look up the defendant in order to tender him 
 the deed; it is enough if they deliver it to him on demand: Perkins v. Winter, 7 
 Ala. 855. It is generally considered that the purchaser has not the rights and is 
 not under the liabilities of an owner until the sale has been confirmed and a deed 
 delivered to him: Wagner v. Cohen, 6 Gill (Md.) 97; Cheney t/. Woodruff, 45 
 N.Y. 98; Clason z'. Corley, 5 Sandford (N.Y.) 447; though the confirmation, when 
 made, is usually held to relate back, so as to give the purchaser a good title from 
 the date of sale: Brown v. Isbell, 11 Ala. 1009; Wagner v. Cohen, ul>i supra ; 
 Evans v. Spurgin, 6 Gratt. (Va.) 107; Taylor v. Cooper, 10 Leigh (Va.) 317. 
 Where action on the report of the commissioners who made the sale was deferred 
 for an unreasonable time without any fault in the purchaser, and in the meantime 
 the property had greatly depreciated in value, he was at his own request released 
 by the court from the contract, in Hyman v. Smith, 13 W. Va. 744. The rights 
 and liabilities of the purchaser will be regulated by the terms of sale which have 
 
 284 
 
CHAP. XIV.] SALES BY THE COURT. 248* 
 
 rights and liabilities of an owner (/). Formerly the highest 
 bidder was very uncertain of his bargain during this interval ; 
 
 (/) 15 & 16 Vict. c. 80, s. 34; Cons. Bridger v. Penfold, i K. & J. 28 ; Bar- 
 
 Ord. XXXV. r. 52; Ex parte Minor, low v. Osborne, 6 H.L.C. 556; but as 
 
 II Ves. 559; Twigg v, Fifield, 13 Ves. to life estates, see Anson v. Towgood, i 
 
 517; Palmer v. Goren, 4 W.R. 688; J. & W. 637; Vesey k. Elwood, 3 Dr. & 
 
 been fixed by the court; if these provide that he shall pay interest on the pur- 
 chase-money, he must do so, whether he obtains possession or not : Brown v. 
 Wallace, 2 Bland Ch. (Md.) 585 ; and he will be regarded as the purchaser from 
 the time that they appoint: Jones v. Burden, 20 Ala. 382; Mitchell v. Bartlett, 
 51 N.Y. 447. The purchaser at a judicial sale subjects himself to the jurisdiction 
 of the court, becoming by his purchase a quasi party to the suit, and may be com- 
 pelled to pay the purchase-money, and comply with the terms of the sale, either 
 by compulsory process against him, or by being held liable for the deficiency upon 
 a resale of the property after his default: Wood v. Mann, 3 Sumner, C.C., 318; 
 Cazet V. Hubbell, 36 N.Y. 677 ; Brasher v. Cortlandt, 2 Johns. (N.Y.) 505 ; 
 Matter of Y'ates, 6 Jones Eq. (Nor. Car.) 212; Hardingz'. Yarbrough, id. 214, note; 
 Thompson v. Adams, 55 Penn. St. 479; Stimson v. Mead, 2 R.I. 541; Gordon v. 
 Simms, 2 McCord Ch. (So. Car.) 151; Haig v. Commissioners, i Desau. (So. 
 Car.) 144; Munson v. Payne, 9 HeisU. (Tenn.) 672; Mosby v. Hunt, id. 675 ; 
 Dibrell v. Williams, 3 Coldw. (Tenn.) 528; Blackmore v. Barker, 2 Swan (Tenn.) 
 340; Vanbibber v. Sawyers, 10 Humph. (Tenn.) 81; Deaderick z/. Watkins, 8 
 id. 520; Atkinson v. Richardson, 18 Wise. 244; s.c, 14 Wise. 157. See, as to 
 the manner of enforcing this liability, Reamer v. Judah, 13 Bush (Ky.) 206; 
 Richardson v. Jones, 3 Gill & J. (Md.) 163; Cowell v. Lippitt, 3 R.I. 92; Long 
 V. Weller, 29 Gratt. (Va.) 347. Correlative to this liability of the purchaser is his 
 right to be put into possession of the property ; and the court will, if necessary, 
 enforce this right by writ of assistance against parties to the suit and those claiming 
 under them pendente lite. But a stranger to the suit, claiming under an independent 
 title, or having acquired rights from a party before suit brought, will not be evicted 
 to put the purchaser into possession. See Thompson v. Smith, i Dillon, C.C., 
 458; Oneale v, Caldwell, 3 Cranch, C.C., 312 ; Trammell v. Simmons, 8 Ala. 
 271 ; Creighton v. Paine, 2 Ala. 158; Bright v. Pennywit, 21 Ark. 130; Tevis v. 
 Hicks, 38 Calif. 234; Frisbie v. Fogarty, 34 Calif. 11; Horn v. Volcano Co., 18 
 Calif. 141; Montgomery v. Tutt, 11 Calif. 190; Skinner v. Beatty, 16 Calif. 156; 
 Rival V. Gallagher, 52 Ga. 630; Kessinger v. Whittaker, 82 Ills. 22; Jackson v. 
 Warren, 32 Ills. 331; Aldrich v. Sharp, 3 Scammon (Ills.) 261; Trabue v. Ingles, 
 6 B. Mon. (Ky.) 82; Applegarth v. Russell, 25 Md. 317; Oliver v. Caton, 2 Md. 
 Ch. Dec. 297; Hart v. Lindsay, Walker (Mich.) 144; Fackler v. Werth, 13 
 N.J. Eq. (2 Beas.) 395; Thomas v. De Baum, 14 N.J. Eq. (i McCart.) 37; Hirsh 
 ■u. Livingston, 5 Thomp. & C. (N.Y.) 263; B.C., 3 Hun (N.Y.) 9; Frelinghausen 
 V. Colden, 4 Paige (N.Y.) 204; Kershaw v. Thompson, 4 Johns. Ch. (N.Y.) 609; 
 Planters' Bank v. Fowlkes, 4 Sneed (Tenn.) 461 ; Loomis v. Wheeler, 18 Wise. 
 524. But this right of the purchaser will not accrue prior to the confirmation of 
 the sale : Crotwell v. Boozer, I So. Car. 274. The purchaser may, as against 
 parties entitled to set aside the sale, be subrogated to the benefit of liens which 
 he has discharged, or which have been paid out of his purchase-money : Spray v. 
 Rodman, 43 Ind. 225; Clark u. Farrow, 10 B. Mon. (Ky.) 446, 450; Miller v. 
 Hall, I Bush (Ky.) 229; Stockton v. Downey, 6 La. Ann. 5S1; Sharkey v. 
 Bankston, 30 La. Ann. (Pt. II.) 891.] 
 
 285 
 
*248 
 
 SALES BY THE COURT. 
 
 [part I. 
 
 for the Court would order the biddings to be opened, and the 
 estate again put up for sale, merely on another person offer- 
 ing a substantially higher price [q) ; but much inconvenience 
 was found to arise from this practice, and it was at length 
 put an end to by the Sale of Land by Auction Act, 1867 (r), 
 the 7th section of which enacts " that the practice of opening 
 the biddings on any sale by auction of land under or by vir- 
 tue of any order of the High Court of Chancery shall from 
 
 War, 74; as to reversions: i Dav. 598. 
 [The highest bidder acquires by his bid 
 no rights to the property until his pur- 
 chase is ratified by the court : Kauffman 
 V. Walker, 9 Md. 229 ; Tooley v. Kane, 
 I Sm. & M. Ch. (Miss.) 518; Eakin v. 
 Herbert, 4 Coldw. (Tenn.) 116. Antea, 
 n. 2. Nor is he entitled to a deed until 
 he pays the price, and that within a rea- 
 sonable time : People v. Circuit Judge, 
 19 Mich. 296; Hyman v. Jarnigan, 65 
 Nor. Car. 96.] 
 
 (17) See Millican v. Vanderplank, 1 1 
 Hare, 136; Ewing !». Waite, L.R. : Eq. 
 440. [In California, a resale may be 
 ordered upon an offer of a substantial 
 increase, or the court may without a 
 resale accept the increased bid : Perkins 
 V. Gridley, 50 Calif. 97; Griffin v. War- 
 ner, 48 Calif. 3S3. And see Bradford v. 
 Hamilton, 3 Tenn. Ch. 344; Vaughn v. 
 Smith, id. 368; Kain v. Masterton, 16 
 N.Y. 174; Horton v. Horton, 2 Bradf. 
 (N.Y.) 200. In Rondabush v. Miller, 
 32 Gratt. (Va.) 454, it was said that 
 though it is in the discretion of the 
 court to open the biddhigs upon the 
 offer of a higher price, yet a fair sale 
 will not be set aside merely for that 
 reason, especially if there is ground for 
 the belief that the higher offer is made 
 out of malice. The mere offer of an 
 advanced price was held to be insuffi- 
 cient cause for ordering a resale in 
 Heberer v. Heberer, 67 Ills. 253 ; Wood 
 V. Parker, 63 Nor. Car. 379; Johnson 
 V. Quarles, 4 Coldw. (Tenn.) 615; Lu- 
 cas I'. Moore, 2 Lea (Tenn.) i; AUis 
 V. Sabin, 1 7 Wise. 626. If the sale was 
 well advertised and there was a large 
 attendance of bidders, and there has 
 
 been no surprise, misunderstanding or 
 fraud, and there is no offer from a re- 
 sponsible party securing a larger sum 
 upon a resale, the court will not refuse 
 to confirm the sale merely because some 
 parties say they will pay a larger price 
 hereafter, especially if they have had 
 a fair opportunity and have refused to 
 do so : People v. Bond Street Savings 
 Bank, 53 How. Pr. (N.Y.) 336. The 
 party who seeks a resale must state a 
 higher sum that he is ready to bid: 
 Wright V. Cantzon, 31 Miss. 514, and 
 must make a deposit or give adequate se- 
 curity therefor : Hazard v. Hodges, 1 7 
 N.J. Eq. (2 C.E. Green) 123; Young z;. 
 Teague, I Bailey Eq. (So. Car.) 13. See 
 Roberts v. Roberts, 13 Gratt. (Va.) 639. 
 But where there has been accident, mis- 
 take or fraud, to the injury of the party 
 seeking to set aside the sale, and a sub- 
 stantial advance is offered, a resale may 
 be ordered upon proper terms : Dewey v. 
 Lippincott, 20 Kansas, 684; Gilbert v. 
 Haire, 43 Mich. 283; Van Arsdalen v. 
 Vail, 32 N.J. Eq. 189I Howell v. Hes- 
 ter, 4 N.J. Eq. (3 Green) 266; BilUng- 
 ton V. Forbes, 10 Paige (N.Y.) 487 ; 
 Tripp V. Cook, 26 Wend. (N.Y.) 143; 
 Collier v. Whipple, 13 id. 224; Ames 
 V. Lockwood, 13 How. Pr. (N.Y.) 555; 
 Gould V. Gager, 24 id. 440; s.c, 18 
 Abbott Pr. 32; King v. Morris, 2 Abbott 
 Pr. 296; Griffith V. Hadley, 10 Bosw. 
 (N.Y.) 587; Pritchird v. Askew, 80 
 Nor. Car. 86; Mound City Ins. Co. v. 
 Hamilton, 3 Tenn. Ch. 228.] 
 
 (;-) 30 & 31 Vict. c. 48. See also, 
 as to sale by private contract. In re 
 Bartlett, 16 Ch. D. 561 ; 50 L.J. Ch. 
 205. 
 
 86 
 
CHAP. XIV.J SALES BY THE COURT. 249* 
 
 and after the time appointed for the commencement of this 
 act (j) be discontinued, and the highest bond fide bidder at 
 such sale, provided he shall have bid a sum equal to or higher 
 than the reserved price, if any, shall be declared and allowed 
 the purchaser, unless the Court or Judge shall, on the ground 
 of [249] fraud or improper conduct in the management of 
 the sale, upon the application of any person interested in the 
 land, such application to be made to the Court or Judge 
 before the chief clerk's certificate of the result of the sale 
 shall have become binding, either open the biddings, holding 
 such bidder bound by his bidding, or discharge him from 
 being the purchaser and order the land to be resold upon 
 such terms, as' to costs or otherwise, as the Court or Judge 
 shall think fit."i Misconduct, to cause the biddings to be 
 opened since the act, must be such misconduct as borders on 
 fraud (t) ; if, however, such misconduct be proved, the Court, 
 it seems, will set aside the purchase, though absolutely con- 
 firmed (li). Where the party conducting the sale purchased, 
 
 (j) The 1st of August, 1867. 513; Duncan z/. Sanders, 50 Ills. 475; 
 
 (/) Griffiths V. Jones, L.R. 15 Eq. Comstock v. Purple, 49 Ills. 158; Mc- 
 
 279; 42 L.J. Ch. 478; Delves t/. Delves, Mullen z;. Gable, 47 Ills. 67; Sovvle v. 
 
 L.R. 20 Eq. 77; Brown v. Oakshott, Champion, 1 6 Ind. 165; Benton v. 
 
 38 L.J. Ch. 717. [It is only upon a Shreve, 4 Ind. 66; Wood v. Young, 38 
 
 clear shewing of unfairness that the Iowa, 102; Glenn i/. Clapp, 1 1 Gill & J. 
 
 chancellor will refuse to confirm sales (Md.) I; Johnson v. Dorsey, 7 Gill 
 
 made by his commissioner: Stump v. (Md.) 269; Hintze v. Stingel, i Md. 
 
 Martin, 9 Bush (Ky.) 285.] Ch. Dec. 283; Gibbsz/. Cunningham, id. 
 
 («) Guest V. Smythe, L.R. 4 Ch. 44; House v. Walker, 4 Md. Ch. Dec. 
 551; 39 L.J. Ch. 536. [Mere inade- 62; BuUardi'. Green, 10 Mich. 268; Mar- 
 quacy of price is not of itself, without latt k. Warwick, 18 N.J.Eq.(3C.E. Green) 
 other circumstances, sufficient cause of 108 ; Eberhart v. Gilchrist, 1 1 N.J. Eq. 
 setting aside a judicial sale, at any rate (3 Stockt.) 167; Lefevre v, Laraway, 
 unless there is so great inadequacy as 22 Barb. (N.Y.) 167,173; Lockwood z'. 
 of itself to excite apprehension that McGuire, 57 How. Pr. (N.Y.) 266; Whit- 
 there has been fraud, surprise or mis- beck I'.Rowe, 25 id. 403,407; American 
 take: West v. Davis, 4 McLean, C.C, Ins. Co. v. Oakley, 9 Paige (N.Y.) 259; 
 241 ; O'Callaghan v. O'Callaghan, 91 Duncan f. Dodd, 2 id. 99; Williamson 
 lUs. 228; Watt 'J. McGalliard, 67 Ills. v. Dale, 3 Johns. Ch. (N.Y.) 290; Liv- 
 
 [' So in New Jersey it is held that the highest bidder, when the property is 
 struck off to him, becomes entitled to a deed, unless for good cause the sale is set 
 aside: Conover v. Walling, 15 N.J. Eq. (2 McCart.) 167. So in New England 
 Mortgage Security Co. v. Smith, 25 Kans. 622 ; Phillips v. Dawley, i Nebraska, 
 320. A mere mistake in computing the amount of the purchase-money, there being 
 no fraud, is no reason for annulling the sale : Cowan v. Anderson, 7 Coldw. (Tenn.) 
 284.] 287 
 
*249 
 
 SALES BY THE COURT. 
 
 [part I. 
 
 without permission to bid and under a feigned name, the 
 Court, even after the purchase had been confirmed, ordered 
 the estate to be put up again at the price for which he had 
 bought it ; and if there should be no higher bidding, he was 
 to be held to his purchase {v). 
 
 Substituting Purchaser. — Either before or after the certifi- 
 cate has become binding, the Court will discharge the pur- 
 chaser and substitute another, upon the latter first bringing 
 the purchase-money into court (w). The application for this 
 purpose is made by summons {x). 
 
 Course to be Pursued where no Sale Effected. — Where the 
 whole or any part of the property remains unsold, it may be 
 again offered for sale in the same manner, and' no new order 
 of the Court will be necessary ; but leave must be obtained 
 
 ingston v. Byrne, II Johns. (N.Y.) 555; 
 Carson's Sale, 6 Watts (Penn.) 140, 146; 
 White V. Floyd, 3 Spears Ch. (So. 
 Car.) 351; Strong v. Catton, I Wise. 
 471. The sale will not be set aside for 
 an inadequacy of price due to the mis- 
 conduct or negligence of the party who 
 complains of it : Northrop v. Cooper, 
 23 Kansas, 432; Forde v. Herron, 4 
 Munf. (Va.) 316; or where the inade- 
 quacy is not clearly established by proof, 
 as in Harnickell -u. Orndorff, 35 Md. 
 341 ; or where there has been laches in 
 the application for relief: Leonard r'. 
 Taylor, 12 Mich. 398; Drake z/. Collins, 
 5 How. (Miss.) 253. But upon proper 
 cause shown a sale for a grossly inade- 
 quate price may be set aside : Cockrell 
 V. Coleman, 55 Ala. 583; Cummins v. 
 Little, 16 N.J. Eq. (l C.E. Green) 48; 
 Wetzler v. Schaumann, 24 N.J. Eq. (9 
 C.E. Green) 60 ; Simon v. Simon, I 
 Miles (Penn.) 404; Kable v. Mitchell, 
 9 W. Va. 492; especially if there has 
 been any unfair practice at the sale, or 
 the price has been lowered by accident 
 or mistake on the part of any one 
 concerned in the sale : Littell v. Zuntz, 
 2 Ala. 256; Mitchell v. Harris, 43 Miss. 
 314 ; Thomas v. Hebenstreit, 68 Ills. 
 115; King V. Piatt, 37 N.Y. 155. The 
 mere fact that the confirmation of a sale 
 
 would sacrifice the interests of parties 
 entitled to the protection of the court 
 was held in Egard -j. Chearnley, I Bush 
 (Ky.) 12, to be sufficient ground to set 
 aside a judicial sale. And see Field v. 
 Gamble, 47 Ala. 443; Hardy v. Heard, 
 15 Ark. 184, 1 89; Conover v. Musgrave, 
 68 Ills. 58; Warfield v. Ross, 3S Md. 
 85; Horsey i;. Hough, id. 130; Mitchell 
 V. Bliss, 47 Mo. 353; Fisher v. Hersey, 
 78 N.Y. 387; Ivain v. Masterton, 16 
 N.Y. 174; Alexandria Bank v. Taylor, 
 5 Cranch, C.C. 314.] 
 
 (v) Sidney v. Ranger (1841), 12 
 Sim. 118; see Dart, 11 96. 
 
 (iw) Miller v. Smith, 6 Hare, 609. 
 [The highest bidder may assign his bid, 
 and this transfer will be no ground for 
 ordering a new sale : Culver v. Mc- 
 Iveown, 43 Mich. 322; Campbell v. 
 Baker, 6 Jones Law (Nor. Car.) 255. 
 And see Vannerson v. Cord, I Sm. & 
 M. Ch. (Miss.) 345; Thompson v. Mc- 
 Namara, 2 Disney (Ohio) 213. Though 
 the officer conducting the sale cannot 
 substitute one purchaser for another, 
 the court may do so, where the change 
 will work no injury : Farmers' Bank v. 
 Clarke, 28 Md. 145; Davis v. Helbig, 
 27 Md. 452; Den v. Lambert, 13 N.J. 
 Law (i Green) 182, 186.] 
 
 (-r) Seton, 1409. 
 
 88 
 
CHAP. 
 
 XIV.] 
 
 SALES BY THE COURT. 
 
 250* 
 
 at chambers, when a new time will be [250] appointed, and 
 the necessary modifications made in the particulars and con- 
 ditions (y). If it is proposed to sell the property in any other 
 way than by public auction, a fresh order must first be made 
 by the Court {z). 
 
 Resale. — Where a resale is ordered, the proceedings are the 
 same as upon an original sale. It is doubtful whether the 
 estate could be reallotted without a special order, made on 
 special reasons {zz). 
 
 II. Sales by Order or Under Process of a County Court. 
 
 Personal property directed by an order of a County Court 
 to be sold must be sold under the superintendence of the 
 high bailiff by public auction, unless the court directs other- 
 wise {a). 
 
 (/) Dan. Ch. Pr. 1163. [An owner 
 of the equity of redemption of premises 
 sold in a foreclosure suit, who was not a 
 party to the suit and had no notice of 
 its pendency, cannot be made to bear 
 the loss resulting from a resale made 
 necessary by the creditor's negligence in 
 the conduct of the suit; no part of such 
 loss should be charged upon his interest 
 in the surplus proceeds of the second 
 sale : Raynor v. Selraes, 52 N.Y. 579.] 
 
 {z) Berry v. Gibbons, L.R. 15 Eq. 
 150; 42 LJ. Ch. 231. [A resale may 
 be ordered if the first sale has been set 
 aside for any cause not affecting the 
 jurisdiction of the court or the power to 
 order the sale : Coffey v. Coffey, 16 Ills. 
 141; Stephens v. Magruder, 31 Md. 
 168; Lefevre v. Lara way, 22 Barb. 
 (N.Y.) 167; King V. Piatt, 37 N.Y. 
 155; Post V. Leet, 8 Paige (N.Y.) 337; 
 Hays's Appeal, 51 Penn. St. 58; Dead- 
 erick v. Smith, 6 Humph. (Tenn.) 138; 
 Roberts v. Roberts, 13 Gratt. (Va.) 639.] 
 
 (22) Dart, 1204, referring to Ward 
 V. Cooke, 9 Sim. 87; Humphries -u. 
 Roberts, 5 Jur. 680. [Dingledine v. 
 Harshman, 53 Ills. 280.] 
 
 (a) County Court Rules, 1875, 0. 
 XVIII. r. 15; cf. 0. II. r. 32; "Where 
 any personal property is directed to be 
 
 sold by auction, detained or preserved, 
 the high bailiff shall, if the court so di- 
 rect, superintend such sale, detention or 
 preservation." [A sheriff's sale on ex- 
 ecution must be made by public auction 
 to the highest bidder for cash : Kronsch- 
 nable v. Knoblauch, 21 Minne. 56; 
 Downing v. Brown, Hard. (Ky.) 181; 
 Cummings v. McGill, 2 Murph. (Nor. 
 Car.) 357; Holmes v. Richmond, 19 
 Hun (N.Y.) 634; Reynolds v. Hoxsie, 
 6 R.I. 463. An auctioneer employed 
 to make the sale is the sheriff's agent; 
 and the sheriff is responsible for all pro- 
 ceeds of the sale received by the auc- 
 tioneer ; Griffin v. Helmbold, 72 N.Y. 
 437. Compare Reamer's Appeal, iS 
 Penn. St. 510. The title of a purchaser 
 of real estate or of goods at a sheriff's 
 sale depends upon the judgment, the 
 execution, and the deed; if these are 
 valid, his title will not be affected by 
 irregularities or omissions upon other 
 points of which he had not notice : Nel- 
 son V. McCrary, 60 Ala. 301 ; Forrest v. 
 Camp, 16 Ala. 642; Stewart v. Houston, 
 25 Ark. 311; Mayo v. Foley, 40 Calif. 
 281; Cloud V. EI Dorado County, 12 
 Calif. 128; Clark I'. Lockwood, 21 Calif. 
 220; Phillipsj'. Coffee, 17IIIS. 154; State 
 V. Salyers, 19 Ind. 432 ; Thurston v. 
 
 289 
 
250 
 
 SALES BY ORDER OR UNDER 
 
 [part I. 
 
 By the County Courts Act, 1846 {b), s. 106, the high baihff 
 of a County Court has power to appoint brokers and ap- 
 
 {b) 9 & 10 Vict. c. 95. 
 
 Barnes, lo Ind. 289; Lusk v. Salter, 2 
 Bush (Ky.) 201 ; Williams v. Gill, 6 J.J. 
 Marsh (Ky.) 487 ; Webber v. Cox, 6 T.B. 
 Mon.(Ky.) i lo; Wilson v. Miller, 30 Md. 
 02 ; Park v. Darling, 4 Cush. (Mass.) 197 ; 
 ilinor V. Natchez, 4 Sm. & M. (Miss.) 
 602; Whitman K. Taylor, 60 Mo. 127; 
 Buchanan v. Tracy, 45 Mo. 437; Curd 
 V. Lackland, 49 Mo. 451; Hendrickson 
 V St. Louis R.R. Co., 34 Mo. iSS; 
 Chambers IJ. Kelly, 12 Mo. 514; Draper 
 V. Bryson, 17 Mo. 71; Wilson v. Eel- 
 lows, 30 N.J. Eq. 282; Nichols 1/. Dis- 
 ner, 29 N.J. Law (5 Dutch.) 293; De 
 Forest v. Farley, 62 N.V. 628; Jack- 
 son V. Rosevelt, 13 Johns. (N.V.) 97; 
 Reid V. Largent, 4 Jones Law (Nor. 
 Car.) 454; Fitler v. Patton, 8 Watts 
 & S (Penn.) 455; Owen u. Navasota, 
 44 Texas, 517; Riddle v. Bush, 27 
 Texas, 675; Seguin v. Maverick, 24 
 Texas, 526; Coffee v. Sylvan, 15 Texas, 
 354; Sydnor v. Roberts, 13 Texas, 598. 
 The sale will not be rendered void by a 
 mere irregularity on the part of the offi- 
 cer vflao makes it, especially if it does 
 not appear that the party has been in- 
 jured thereby : Jones v. Davis, 2 Ala. 
 730; Stewart v. Croes, 5 Oilman (Ills.) 
 442; Fleming v. Maddock, 32 Iowa, 
 493; Floyd V. McKinney, 10 B. Mon. 
 (Ky.) 89; Daviess v. Wamack, 8 B. 
 Mon. (Ky.) 383; Broughton v. King, 2 
 La. Ann. 569; May v. Thomas, 48 
 Maine, 397; Sanford v. Durfee, 19 Pick. 
 (Mass.) 485; Tillman v. Jackson, i 
 Minne. 183; Biggs v. Brickell, 68 Nor. 
 Car. 239; Waggoner v. Dubois, 19 
 Ohio, 67; Hadden v. Clark, 2 Grant. 
 (Pa. Cas.) 107; Maddox v. Sullivan, 
 2 Rich. Eq. (So. Car.) 4; Carr v. Glass- 
 cock, 3 Gratt. (Va.) 343. But this rule 
 will not extend to case where the sheriff 
 has sold something which he had no 
 authority to sell : Harris z . Murray, 28 
 N.V. 574; nor to a case where proper 
 notice of the sale has not been given : 
 
 Henderson v. Flays, 41 N.J. Law, 387, 
 unless cured by the assent of the parties, 
 as shown even by lapse of time : Houck 
 I. Cross, 67 Mo. 151. A purchaser up- 
 on an execution issued upon the judg- 
 ment of a court of general jurisdiction, 
 having cognizance of the action in which 
 it was rendered, will protect the pur- 
 chaser, however erroneous it may be : 
 United States Bank v. Voorhees, I Mc- 
 Lean, C.C. 221, and even though it may 
 have been subsequently reversed : Gal- 
 pin V. Page, I Sawyer, C.C. 309; South 
 Fork Canal Co. v. Gordon, 2 Abbott, 
 U.S. 479; Morton v. Underwood, 49 
 Ala. 419 ; Garrett v. Lynch, 45 Ala. 
 204; Tucker v. Harris, 13 Ga. i ; Rear- 
 don V. Searcey, 2 Bibb (Ky.) 202; 
 Coleman v, Trabue, id. 51 8; Storm v. 
 Smith, 43 Miss. 497; Vogler v. Mont- 
 gomery, 54 Mo. 577; !\IcAusland v. 
 Pundt, I Nebraska, 2H; Feeger v. 
 Keefer, 6 Watts (Penn.) 297; Sinnett 
 ■I/. Cralle, 4 W. Va. 600. A different 
 rule is sometimes applied to the case of 
 a plaintiff purchasing upon his own exe- 
 cution : Morton v. Underwood, 49 Ala. 
 419; Harrison v. Rapp, 2 Blackf. (Ind.) 
 I ; Holland v. Adair, 55 Mo. 40; though 
 it is frequently said that a plaintiff so 
 purchasing is entitled to the same pro- 
 tection as any other purchaser against 
 irregularities of which he had no notice : 
 Humphrey v. McGill, 59 Ga. 649; Hal- 
 loway V. Plainer, 20 Iowa, 121 ; Wood 
 V. Morehouse, 45 N.V. 36S; Ingram v. 
 Belk, 2 Strobh. (So. Car.) 207. Com- 
 pare Durham v. Heaton, 28 Ills. 264; 
 Gentry v. Robinson, 55 Mo. 260. But 
 if the sale is made upon process abso- 
 lutely void, or without a subsisting power 
 in the sheriff to make it, or is attempted 
 to be executed by an invalid deed, it 
 will not vest a good title in the pur- 
 chaser: French v. Edwards, 13 Wal- 
 lace, 506; Jones V. Calloway, 56 Ala. 
 46; Hughes V. Watt, 26 Ark. 228; 
 90 
 
CHAP. XIV.] PROCESS OF A COUNTY COURT. 
 
 250* 
 
 praisers for the purpose of selling or valuing goods taken in 
 execution under the act, and to direct security to be taken 
 
 Carbine v. Morris, 92 Ills. 555; Piel v. 
 Brayer, 30 Ind. 332 ; Roberts v. Stowers, 
 7 Bush (Ky.) 295; Sharpe v. Roe, 13 
 Bush (Ky.) 461; Higgins v. Peltzer, 49 
 Mo. 152; Durette v. Briggs, 47 Mo. 
 356; Ryan z;. Carr, 46 Mo. 483 ; Hilton 
 V. Bender, 69 N.Y. 75 ; Rogers v. Mar- 
 shall, 38 How. Pr. (N.Y.) 43; Fin- 
 ley V. Gant, 8 Baxter (Tenn.) 148 ; 
 Ogg V. Leinart, i Heisk. (Tenn.) 
 40; Leland v. Wilson, 34 Texas, 
 79; Perdew v. Davis, 31 Texas, 488. 
 If the sale has been made upon void 
 process, the court may, upon the appli- 
 cation of the purchaser while the pur- 
 chase-money remains in the hands of 
 the sheriff, set aside the sale, cancel the 
 deed, and order the purchase-money to 
 be refunded ; Dowell v. Goode, 25 
 Ohio St. 390; Shakespeare v. Delany, 
 86 Penn. St. 108. The highest bidder 
 at a sale of real estate under an execu- 
 tion acquires no title until a proper deed 
 is delivered to him : Cummings v. Doe, 
 10 Calif. 529; Grover v. Fox, 36 Mich. 
 461; Blanco v. Foote, 32 Barb. (N.Y.) 
 535; Smith V. Colvin, 17 id. 157; 
 Vaughn v. Ely, 4 id. 159; Schermer- 
 horn V. Merrill, I id. 5 1 1 ; Ex parte 
 Peru Iron Co., 7 Cow. (N.Y.) 540; Cat- 
 lin V. Jackson, 8 Johns. (N.Y.) 520; 
 Crustsinger v. Caton, 10 Humph. 
 (Tenn.) 24. The purchaser of personal 
 property takes his title by delivery ; if a 
 certificate of the sale is requisite, yet its 
 form is not material : Lay v. Neville, 25 
 Calif. 545; Conger o. Robinson, 4 Sm. 
 & M. (Miss.) 210. The deed must be 
 made to the highest bidder, not one 
 substituted for him : Dickermann v. 
 Burgess, 20 Ills. 266; Small v. Hodgen, 
 I Litt. (Ky.) 16; Kinnear v. Lee, 28 
 Md. 448; Mathews v. CHfton, 13 Sm. 
 & M. (Miss.) 330. A sheriffs sale un- 
 der execution may be avoided by proof 
 that it was collusive or fraudulent or 
 wantonly and manifestly injurious : Wal- 
 lace V. Atlanta Medical College, 52 Ga. 
 164; Flood V. Prettyman, 24 Ills. 597; 
 
 2 
 
 Hayden v. Dunlap, 3 Bibb (Ky.) 216; 
 Drouet v. Lacroix, 28 La. Ann. 126; 
 Overend v. Robinson, 10 La. Ann. 728; 
 Dallam v. Bowman, 16 Mo. 225; Teub- 
 ner v. MoUer, 12 Mo. 528; Parker v. 
 Pratt, 8 N.J. Eq. (4 Halst.) 104; Sea- 
 man V. Riggins, 2 N.J. Eq. (i Green) 
 214. But the presumption of law is in 
 favor of the regularity of a sheriff's sale : 
 West V. Cooper, 19 Ind. i; Eggers v. 
 Redwood, 50 Iowa, 289; Love v. Cher- 
 ry, 24 Iowa, 204; Childs v. McChes- 
 ney, 20 Iowa, 431 ; Shields v. Miller, 9 
 Kans. 390; Evans v. Davis, 3 B. Mon. 
 (Ky.) 344 ; Elliott -u. Knott, 14 Md. 
 121; Hawley v. Cramer, 4 Cow. (N.Y.) 
 717; Nixon V. Bynum, i Bailey (So. 
 Car.) 148; White v. Davis, 50 Mo. 333; 
 Harteaux v. Eastman, 6 Wise. 410; and 
 such irregularities as may exist cannot 
 be set up by mere strangers or in col- 
 lateral proceedings : Meeker v. Wilson, 
 I Gall, C.C, 419; Landes v. Brant, 10 
 Howard, 348 ; Byers v. Fowler, 1 2 Ark. 
 (7 English) 218; Phillips v. Coffee, 17 
 Ills. 1 54 ; Davis v. Campbell, 1 2 Ind. 192 ; 
 McClendon -v. Kemp, 18 La. Ann. 162; 
 Lawrence v. Birdsale, 6 La. Ann. 6S8 ; 
 Morrison v. Whetstone, 5 La. Ann. 636; 
 Loucks V. Union Bank, 2 La. Ann, 617; 
 Wellshear v. Kelly, 69 Mo. 343; Landes 
 V. Perkins, 12 Mo. 238; Reed v. Aus- 
 tin, 9 Mo. 712, 722; Smith V. McGowan, 
 3 Barb. (N.Y.) 404; Hinds v. Scott, 11 
 Penn. St. 19; Wood v. Doane, 20 Vt. 
 612. A sale upon process void by rea- 
 son of defects apparent upon the face 
 of the writ can convey no title to the 
 purchaser; if it is merely erroneous and 
 voidable, the defects can ordinarily be 
 taken advantage of only in direct pro- 
 ceedings instituted for that purpose; 
 and unless reversed or set aside by the 
 court from which it issued such pro- 
 cess will be deemed valid for all pur- 
 poses as against strangers and in collat- 
 eral matters: Lawson v. Jordan, 19 
 Ark. 297; Doe v. Harter, 2 Ind. 252; 
 Young V. Smith, 10 B. Mon. (Ky.) 293; 
 
 91 
 
*250 SALES BY ORDER OR UNDER [PART I. 
 
 from them for the faithful performance of their duties ; and 
 no such goods may be sold to satisfy the warrant of execu- 
 tion, except by a broker or appraiser so appointed.' Until 
 
 Howard u. Schmidt, 29 La. Ann. 129; 4 Desau. (So. Car.) 552. And even the 
 Cockerelz'. Wynne, 12 Sm.& M. ''Miss.) party directly in interest will be talcen 
 117; Mitchell t'. Evans, 5 How. (Miss.) to have waived his remedy unless he 
 54S; Fine v. St. Louis Public Schools, prosecutes it without unreasonable de- 
 30iIo. i66; Emleyz/.Drum, 36Penn. St. lay: Rigney v. Small, 60 Ills. 416; 
 123; Anderson v. Clark, 2 Swan (Tenn.) Noyes v. True, 23 Ills. 503; Stehman v. 
 156; Taylor j. Snow, 47 Texas, 462; CruU, 26 Ind. 436; Welch !<. Murray, 4 
 Alexander v. Miller, 18 Texas, 893 ; Yeates (Penn.) 196; Lafferty v. Conn, 
 Raymond v. Pauli, 21 Wise. 531 ; Sabin 3 Sneed (Tenn.) 221 ; just as he might 
 V. Austin, 19 Wise. 421; Falkner '•. at the time of the sale have waived the 
 Guild, 10 AVisc. 563. Chancery will take irregularities and confirmed the sale, 
 jurisdiction to revise sales of property and may be presumed to have done so 
 upon executions, if fraud or illegality is where they were for his benefit : Nichols 
 shown, but not by reason of mere irreg- v. Mercier, 15 La. Ann. 370; Klopp v. 
 ularities : Estill v. Miller, 3 Bibb (Ky.) Witmoyer, 43 Penn. St. 226; Richard- 
 177; Wolford I'. Phelps, 2 J.J. Marsh, son w. Englesby, 13 Rich. Eq. (So.Car.) 
 (Ky.) 31; Shirley v. Taylor, 5 B. Mon. 59; Russell v. Stinson, 3 Hayw. (Tenn.) 
 (Ky.) 99; Cavenaugh v. Jakeway, i i ; though his mere presence at the 
 Walk. (Mich.) 344; White !<. Trotter, sale without objection thereto would not 
 14 Sm. & iL (Jliss.) 30; Hicks f. of itself operate such a waiver : Humph- 
 Perry, 7 Mo. 346; Hastings v. Burning reys z/. Browne, 19 La. Ann. 158; Mitch- 
 Moscow Co., 2 Nevada, lOO; Miller z'. ell v. Lipe, S Verg. (Tenn.) 179; Car- 
 Cherry, id. 165; Norton v. Beaver, 5 ney z/. Carney, 10 id. 491, approving but 
 Ohio, 178; United States Bank v. limiting Noe v. Purchaphile, 5 id. 215. 
 Schultz, 2 Ohio, 471 ; O'Neal v. Cathran, See also Morgan v. Oberly, 85 Ills. 74.] 
 
 [' A sale by auction on execution or other process of law cannot, however, as 
 a general rule, be invalidated for mere inadequacy of price, the sale having been 
 fairly and properly made, and no fraud having intervened : Cooper v. Galbraith, 
 3 Wash., C.C, 546; Randolph v. Thomas, 23 Ark. 69; Newton v. State Bank, 22 
 Ark. 19; Miller v. Fraley, 2I Ark. 22; Britten v. Handy, 20 Ark. 381 ; Smith v. 
 Randall, 6 Calif. 47; Cowen v. Stevens, 3 Ilarr. (Del.) 494; Booth v. Webster, 
 5 id. 129; Van Dyke v. Martin, 53 Ga. 221; McHany v. Schenck, 88 Ills. 357 ; 
 Pickering v. Driggers, 59 Ills. 65; Bertenshaw v. Moffitt, 6 Ind. 464; Roe v. 
 Ross, 2 Ind. 99; Wallace v. Berger, 25 Iowa, 456; Waller v. Tate, 4 B. Mon. 
 (Ky.) 529; Hansford c. Barbour, 3 A.K. Marsh. (Ky.) 515; Dart v. Bleight, 3 
 T.B. Mon. (Ky.) 273; Cushwa v. Cushwa, 5 Md. 55; Campau v. Godfrey, 18 
 iSIich. 27; Delafield v. Anderson, 7 Sm. cS: M. (Miss.) 630; Drake v. Collins, 5 
 How. (Miss.) 253; Phillips v. Stewart, 59 Mo. 491; Den v. Zellers, 7 N.J. Law 
 (2 Halst.) 153; Smith v. Duncan, i5 N.J. Eq. 240; Mercereau v. Prest, 3 N.J. 
 Eq, (2 Green) 460; Simmons v. Vandegrift, i N.J. Eq. (Saxton) 55; Livingston 
 V. Byrne, 11 Johns. (N.V.) 555; March v. Ludlum, 3 Sandf. Ch. (N.Y.) 35; 
 Craig's .\ppeal, 77 Penn. St. 448; Coleman :'. Hamburg Bank, 2 Strobh. Eq. 
 (So. Car.) 285; Stockdale v. Yongue, Rice Ch. (So. Car.) 3; Agricultural Asso- 
 ciation V. Brewster, 51 Texas, 257; Prigden -'. Adkins, 25 Texas, 38S; O'Brien v. 
 Hilburn, 22 Texas, 616; Allen v. Stephanes, 18 Texas, 658. But it is sometimes 
 held that sheriff's sales upon execution may be avoided, and such sales have 
 accordingly been set aside, for gross inadequacy of price : Ray v. Womble, 56 
 
 292 
 
CHAP. XIV.J PROCESS OF A COUNTY COURT. 2$ I* 
 
 sale, such goods must be deposited in a fit place, or a fit per- 
 son approved by the high bailiff may be put in [251] posses- 
 sion of them (c). The fee for keeping possession until sale, 
 including expenses of removal, storage and all other expenses, 
 is per day, not exceeding five days, sixpence in the pound on 
 the value of the goods seized, to be fixed by appraisement in 
 'case of dispute (^) ; but no possession fee is payable, where 
 the execution is paid out at the time of the levy, unless the 
 possession has necessarily lasted more than half an hour (e). 
 The goods may not be sold, except at the written request of 
 the owner, until the end of five days after the day on which 
 they were taken, unless they are of a perishable nature (/) ; 
 
 (c) 9 & lo Vict. c. 95, s. lo5. The («■) County Coiirt Rules, 1875, 0. 
 
 high bailiff may from time to time ap- XXXVI. r. 7. 
 
 point such and so many persons for {/) 9 & 10 Vict. c. 95, s. lo5. 
 
 keeping possession as shall appear to [Unless otherwise provided by statute, 
 
 him to be necessary, and may direct se- a sheriff's sale made without the notice 
 
 curity to be taken from them; iliid. required by law, or at a different time 
 
 («/) Schedule A to Treasury Order from that stated in the notice, will pass 
 
 of 26 October, 1875. no title to the purchaser : Kingz/. Cush- 
 
 Ala. 32; Fergus v. Woodworth, 44 Ills. 374; Swope v. Ardery, 5 Ind. 213; 
 Hodgson &. Farrell, 15 N.J. Eq. (2 McCart.) 88; Bixley v. Mead, 18 Wend. 
 (N.Y.) 611; Baker v. Clepper, 26 Texas, 629; Sinnett zi. Cralle, 4 W. Va. 600. 
 And in Clement v. Reid, 9 Sm. & M. (Miss.) 535, it was held that inadequacy of 
 the consideration may well justify a court of equity in refusing to assist the pur- 
 chaser at such a sale. But if there is any appearance of unfairness in the sale or 
 its conduct, or if any irregularity in the sale is brought home to the purchaser, 
 then the inadequacy of the price may warrant the avoidance of the sale; for gross 
 inadequacy of price is itself one of the badges of fraud, and may become of con- 
 trolling influence when coupled with other circumstances: Morris v. Robey, 73 
 Ills. 462; Thomas v. Hebenstreit, 68 Ills. 115; Seller v. Lingermann, 24 Ind. 
 264; Lashley z/. Cassell, 23 Ind. 600; Williams v. Jones, i Bush (Ky.) 621 ; 
 Gist V. Frazier, 2 Litt. (Ky.) 118; Howell v. McCreery, 7 Dana (Ky.) 388; Law- 
 rence V. Young, I La. Ann. 297; Succession of Hiligsberg, i La. Ann. 340; 
 Cubbage zi. Franklin, 62 Mo. 364; Curd v. Lackland, 49 Mo. 451; Cummins v. 
 Little, 16 N.J. Eq. (i C. E. Green) 48; Smith v. Vreeland, id. 198; Sheldon z'. Saenz, 
 59 How. Pr. (N.Y.) 377; Weitzel z/. Fry, 4 Dallas, 218; Pearson v. Hudson, 52 
 Texas, 352; Taul zi. Wright, 45 Texas, 388; Johnston zi. Shaw, 33 Texas, 585; 
 Grede v. Dannenfelser, 42 Wise. 78. The judgment-debtor cannot complain of 
 an inadequacy of price which results from his own conduct at the sale : Fabel ■v. 
 Boykin, 55 Ala. 383; Pearson v. Flanagan, 52 Texas, 266; Atchison zi. Hutchison, 
 51 Texas, 223. And any alleged inadequacy of price must be tested by the value 
 of the property at the very time of the sale, and not at any subsequent time : 
 Walker v. Derby, 5 Biss., C.C, 134. The sheriff cannot be held responsible for an 
 inadequacy of the price, unless caused by his own fraud or gross negligence : 
 Powell V. Governor, 13 Ala. 516,] 
 
 293 
 
^251 
 
 SALES BY ORDER OR UNDER 
 
 [part I. 
 
 nor are they to be appraised until the fifth day of the baiUff's 
 holding possession, " unless where the goods are of a perish- 
 able nature, or are sold at the request of the party before the 
 expiration of four days, or unless the goods are removed " (o). 
 More must not be sold than is necessary to satisfy the execu- 
 tion (/z). Where goods seized under County Court process 
 
 man, 41 Ills. 31; Chambers v. Hays, 6 
 B. Mon. (Ky.) 115; Casey v. Gregory, 
 13 id. 505; Hayden zi. Dunlap, 3 Bibb 
 (Ky.) 2i6; Morland v. Bowling, 3 Bibb 
 (Ky.) 500. But the power of the offi- 
 cer to adjourn the sale to a stated time, 
 though denied in Louisiana in Mont- 
 gomery V. Barrow, 19 La. Ann. 169, is 
 generally recognized : Phelps i-. Cono- 
 ver, 25 Ills. 309; Swortzell v. Martin, 
 16 Iowa, 519; Tinkom v. Purdy, 5 
 Johns. (N.Y.) 345; Wade i'. Saunders, 
 70 Nor, Car. 270; Kelly 11. Creen, 63 
 Penn. St. 299. But adjournment of the 
 sale, after beginning il, was held in 
 Donaldson tj. Kerr, 6 Penn. St. 486, to 
 operate by implication the withdrawal 
 of a bid already made. The officer 
 may, acting in good faith and in the 
 exercise of a sound discretion, advertise 
 and sell different articles of personal 
 property at different places : Drake z'. 
 Mooney, 31 Vt. 617.] 
 
 (f) County Court Rules, 1875, O. 
 XXXVI. (Costs), r. 8. 
 
 (A) Stead v. Gascoigne, 8 Taunt. 
 527; Aldred v. Constable, 6 Q.B. 370; 
 8 Jur. 956; Cook V. Palmer, 6 B. & C. 
 739; 9 D. & R. 723. [Property seized 
 upon an execution should be sold sep- 
 arately or by parcels, and not in bulk; 
 but no division should be made which 
 would be injurious to the interests of 
 the parties, as by dividing articles in- 
 tended or fitted to be used together or 
 subject to a common incumbrance : 
 McLean County Bank z>. Flagg, 31 Ills. 
 290; Peck w. Cavell, 16 Mich. 9; Tift 
 ■V. Barton, 4 Denio (N.Y.) 171 ; Cresson 
 V. Stout, 17 Johns. (N.Y.) 116; Car- 
 penter V. Simmons, i Robt. (N.Y.) 
 360 ; Bevan v. Byrd, 3 Jones Law (Nor. 
 Car.) 397; Klopp p. Witmoyer, 43 
 Penn. St. 219; Ballard v. Anderson, iS 
 
 Texas, 377. .So, an execution sale in 
 mass of several distinct parcels of land, 
 especially at a price greatly below their 
 real value, cannot be sustained against 
 the objection of the judgment-debtor : 
 San Francisco v. Bi.xley, 21 Calif. 56; 
 Williams z'. Allison, 33 Iowa, 278; King 
 ■V. Tharp, 26 Iowa, 2S3; Groff v. Jones, 
 6 Wend. (N.Y.) 522; Tiernan v. Wil- 
 son, 6 Johns. Ch. (N.Y.) 411. An exe- 
 cution sale in gross of separate and dis- 
 tinct parcels of land is unwarranted, and 
 may be avoided by the parties in inter- 
 est: Browne v. Ferrea, 51 Calif. 552; 
 Balance v. Loomis, 22 Ills. 82 ; Mor- 
 ris V. Robey, 73 Ills. 462 ; Phelps v. 
 Conover, 25 Ills. 309; Catlett v. Gil- 
 bert, 23 Ind. 614; Benton z/. Wood, 17 
 Ind. 260; White z'. Watts, 18 Iowa, 74; 
 Bradford v. Limpus, 13 Iowa, 424; Bell 
 V. Taylor, 14 Kans. 277; Smith v. Dow, 
 51 Maine, 21; Fletcher z*. Stone, 3 
 Pick. (Mass.) 250; Jackson z/. Newton, 
 18 Johns. (N.Y.) 355; Andrews z/. 
 Pritchett, 72 Nor. Car. 135; Mevey's 
 Appeal, 4 Penn. St. 80; Winters v. 
 Burford, 6 Coldw. (Tenn.) 328; Cooke 
 ly. Walters, 2 Lea (Tenn.) 116. But 
 such a mode of sale is generally, unless 
 otherwise provided by statute, merely 
 irregular, and the sale can be avoided 
 only upon proper proceedings therefor : 
 McHany v. Schenck, 88 Ills. 357; Os- 
 good V. Blackmore, 59 Ills. 261 ; Cun- 
 ningham zi. Felker, 26 Iowa, 117; John- 
 son z'. Hovey, 9 Kansas, 61 ; Lamberton 
 V. Merchants' Bank, 24 Minne. 281 ; 
 Mohawk Bank v. Atwater, 2 Paige 
 (N.Y.) 54; Husted v. Dakin, 17 Ab- 
 bott, Pr. (N.Y.) 137; GiisHoI.l c. 
 Stoughton, 2 Oregon, 61; Wilson v. 
 Twitty, 3 Hawks (Nor. Car.) 44. The 
 right of the sheriff to sell several parcels 
 together or separately was maintained 
 
 294 
 
CHAP. XIV.] PROCESS OF A COUNTY COURT. 
 
 252* 
 
 are claimed by a third party, it will be lawful to proceed to a 
 sale of the goods notwithstanding the claim, unless the claim- 
 ant makes a deposit in accordance with the 72nd section of 
 19 & 20 Vict. c. 108 {i). The broker or appraiser is entitled 
 to have out of the produce of the goods sold, sixpence in the 
 pound on the value of the goods, for appraisement, over and 
 above the stamp duty (/), and, for [252] advertisements, cat- 
 alogues, sale, commission, and delivery of the goods, one 
 shilling in the pound on the net produce of the sale {k). 
 
 III. Sales under Distraints for Rent. 
 
 By the common law, a landlord, that is, a person to whom 
 rent is payable and who has the immediate reversion in the 
 
 (Md.) 494; Coxe V. Halstead, 2 N.J. 
 Eq. (l Green) 311; Penn i/. Craig, id. 
 495; Woods v. Monell, i Johns. Ch. 
 (N.Y.) 502. But the right of the owner 
 of land seized upon an execution to have 
 it divided into parcels for sale is gener- 
 ally regulated by the statutes of the dif- 
 ferent states : see Kinney v. Knoebel, 
 51 Ills. 112, 121; Joyce v. Madison 
 Bank, 62 Ind. 188; Weaver v. Guyer, 
 59 Ind. 195; Gregory v. Purdue, 32 
 Ind. 453; Patton v. Stewart, 19 Ind. 
 233; Reed v. Diven, 7 Ind. 189; Suc- 
 cession of McCall, 28 La. Ann. 713; 
 Smith f. Dow. 51 Maine, 21; Neilson 
 V. Neilson, 5 Barb. (N.Y.) 565; O'Don- 
 nell V. Lindsay, 39 N.Y. Superior Court, 
 523; Davis u. Abbott, 3 Ired. Law (Nor. 
 Car.) 137; Ament v. Brennan, i Tenn. 
 Ch. 431; Vilas V. Reynolds, 6 Wise. 
 214; Raymond z;. Holborn, 23 Wise. 57.] 
 
 (;') The County Courts Act, 1856; 
 Cramer v. Matthews, 7 Q.B.D. 425. [It 
 is the policy of the law to favor the pur- 
 chasers at sheriff's sales as against the 
 debtors whose debts have been paid 
 thereby: Elliott v. Knott, 14 Md. 121, 
 but not as against third persons having 
 interests in the property sold : Irwin v. 
 Hams, 6 Ired. Eq. (Nor. Car.) 215. See 
 Hughes V. Miller, 2 Greene (Iowa) 9.] 
 
 (y) See Chapter III. ante, p. 43. 
 
 (/•) 9 & 10 Vict. u. 95, s. 106. As 
 to licence, see ante, p. 10. 
 
 95 
 
 in Rector v. Hartt, 8 Mo. 448 : Evans 
 V. Wilder, 5 Mo. 313; British Columbia 
 Bank v. Page, 7 Oregon, 454. And if 
 land levied upon is capable of division 
 it is the duty of the sheriff to sell only 
 so much thereof as is necessary to sat- 
 isfy the execution, and his sale of a 
 greater quantity will not be upheld: 
 Wheeler v. Kennedy, i Ala. 292; Mc- 
 Lean Bank v. Flagg, 31 Ills. 290; Reed 
 V. Carter, i Blackf. (Ind.) 410; State 
 V. Leach, 10 Ind. 308 ; Cook v. Jenkins, 
 30 Iowa, 452 ; Adams v. Keiser, 7 Dana 
 (Ky.) 208; Stover v. Boswell, 3 Dana 
 (Ky.) 232; State v. Yancey, 61 Mo. 
 397; Berry v. Griffith, 2 Harr. & G. 
 (Md.) 337; Vanduyne v. Vanduyne, 
 16N.J. Eq. (i C.E.Green) 93; Cornelius 
 ■u. Burnford, 28 Texas, 202. But where 
 property so sold was purchased by the 
 debtor and a loss thereby prevented, 
 the court refused, in Tankersly v. An- 
 derson, 4 Desau. (So. Car.) 44, to dis- 
 turb the sale. And unless otherwise 
 directed by statute, though an officer 
 should not put up several distinct pieces 
 of land together, he is not necessarily 
 bound to divide a parcel of land into sep- 
 arate lots and offer each for sale by itself : 
 Smith I-. Randall, 6 Calif. 47; Prather 
 V. Hill, 35 Ills. 402; Garrett v. Moss, 
 20 Ills. 549; Greenup v. Stoker, 12 Ills. 
 24; Taylor v. Graham, 18 La. Ann. 
 656; Nesbitt V. Dall.-im, 7 Gill & J. 
 
*252 
 
 DISTRAINTS FOR RENT 
 
 [part I. 
 
 property out of which the rent issues, has, as soon as the 
 rent is in arrear, a right to enter upon the property and seize, 
 with certain exceptions, any goods or cattle he may find there, 
 and to hold them as a pledge or security, until the rent in 
 arrear is paid ; and it matters not whether the goods so seized 
 are the goods of the tenant or of a stranger {a). To this 
 right a power to sell the goods seized has been added by 
 statute (b). It is to this remedy that the term distress is 
 properly applied, although many law-writers have used it to 
 signify indifferently the remedy, the process, and the goods 
 seized (.:). 
 
 This remedy, being the most effectual means that a 
 landlord has of recovering his rent when in arrear, is 
 frequently resorted to ; and the sale is usually effected 
 by public auction. The landlord may himself levy the dis- 
 tress, but generally an agent or bailiff is employed ; and 
 it is a common practice in the country, especially in the 
 case of small holdings, to emjjloy an auctioneer as bailiff. 
 
 (<z) Gilbert on Distresses, 35. [See 
 3 Kent's Commentai'ies, 485. The right 
 of distraint, where it exists, depends 
 upon the relation of landlord and ten- 
 ant : Alwood V. Mansfield, 33 Ills. 452; 
 De Coursey v. Guaranty Trust Co., 81 
 Penn. St. 217; Seyfert v. Bean, 8^ 
 Penn. St. 450; Nichols v. Dusenbury, 
 2 N.Y. 283; Smith v. Turnley, 44 Ga. 
 243. The common law right of distress 
 has been superseded or abrogated in 
 the New England States, New York, 
 North Carolina, Mississippi, Missouri. 
 See Potter v. Hall, 3 Pick. (Mass.) 368 ; 
 Marye i'. Dyche, 42 Miss. 347 ; Dal- 
 gleish V. Grandy, Cam. & Nor. (Nor. 
 Car.) 22; Deaver v. Rice, 4 Dev. & 
 Bat. (Law) 431; Crocker v. Mann, 3 
 Mo. 472. In ^Mississippi, Louisiana, 
 Montana and Wisconsin, the right of 
 distress has been abolished by statute ; 
 but a qualified lien upon the tenant's 
 property is reserved to the landlord in 
 lieu thereof: Arbuckle v. Nelms, 50 
 Miss. 556; Bohm v. Dunphy, I Mon- 
 tana, 333; Marshall -c Knox, 16 Wal- 
 lace, 551 ; Conrad v. Patzelt, 29 La. 
 
 296 
 
 Ann. 465; Aurich v. Wolf, 2° La. Ann. 
 (Part I.) 375; Stewart z>. La Coume, 
 id. 157; Louisiana Civil Code, Arts. 
 2675, 2679, 3183; Wisconsin Laws of 
 1866, p. 77. Except in these states the 
 common law rules regulating distresses 
 for rents are generally adopted in the 
 United States : Thornton -u. Wilson, 55 
 Ga. 607 ; McMahan v. Tyson, 23 Ga. 43 ; 
 Kaufman v. Myers, 38 Ga. 133; Bart- 
 lett V. Sullivan, 87 Ills. 219; Mead v. 
 Thompson, 78 Ills. 62; Myers v. Mans- 
 field, 7 Bush (Ky.) 212; Burket v. 
 Boude, 3 Dana (Ky.) 209; Keller v. 
 Weber, 27 Md. 660 ; Giles v. Ells- 
 worth, 10 Md. 333; Allen v. Agnew, 
 24 N.J. Law, 443 ; Souders v. Vansickle, 
 S N.J. Law (Halst.) 313; Moss's Ap- 
 peal, 35 Penn. St. 162; Mobley t'. Dent, 
 10 So. Car. 471 ; Eraser v. Davie, 5 
 Rich. (So. Car.) 59 ; Charleston -'. 
 Price, : McCord (So. Car.) 299; Weir 
 V. Brooks, 17 Texas, 638; Brooks i'. 
 Wilcox, II Gratt. (Va.) 411.] 
 
 {b) 2 W. & M. sess. I, c. 5. 
 
 {c) Gilbert (on Rents), 92; 3 Bl. 6. 
 
CHAP. XIV.] AND SALES THEREUNDER. 253* 
 
 and to entrust the whole management of the distress to 
 him.' 
 
 The bailiff should receive from his employer an authority 
 [253] in writing, called a "distress warrant" [d). This au- 
 thority has the effect of a guarantee from the landlord to the 
 bailiff that the former has a legal right to distrain and will 
 indemnify the latter against any loss or expense he may incur 
 by reason of the absence of such right, but it will not protect 
 him from the consequences of any act he may do outside his 
 authority, or from the consequences of any negligence or 
 irregularity on his part in proceeding with the distress (<?). 
 While, therefore, except where he has reason to doubt his 
 employer's solvency, the bailiff will not, as a rule, be con- 
 cerned to inquire into the right of his employer to distrain, 
 it is on the other hand necessary that he should have an 
 accurate knowledge of his duties as bailiff, and of the forms 
 and precautions which a bailiff must observe. On this ac- 
 count it is intended to refer only shortly to those conditions 
 without which the right to distrain cannot exist, and to men- 
 tion only a few special cases in which persons not in the posi- 
 tion of simple landlords can exercise that right ; while the 
 duties of the bailiff in conducting the seizure and sale will be 
 considered somewhat more in detail (/). 
 
 Conditions Precedent to Distress. — In order that a person 
 may distrain of common right : (i) he must have a rever- 
 sion {g) in the premises out of which the rent issues {h) ; 
 (2) there must be an actual demise at a fixed rent, subsisting 
 
 {d) See forms, post. [A seizure and tenant if there was no legal right of 
 
 sale on a distress warrant, the proceed- distraint in the landlord : Werner v. 
 
 ings on which are required to be in Ropiequet, 44 Ills. 522.] 
 
 writing, cannot he proved by parol: (/) Upon the subject of distress 
 
 Myers v. Smith, 27 Md. 91. But sec- generally, see Woodf Ch. XI. 
 
 ondary evidence may be received if the (g) " A reversion is where a residue 
 
 loss of the papers has been shown: of the estate always doth continue in 
 
 Peck V. Gurney, 2 Hill (N.Y.) 605.] him that made the particular estate." — 
 
 (f) See also infra, pp. 258, et seq. Co. Lit. 226. 
 
 [Becker v. Dupree, 75 Ills. 167. The (Ji) Gilbert on Distresses, 24; 2 
 
 bailiff will not be protected against the Bac. Abr. 196. 
 
 [' The distress is generally required to be made by a legal officer : Ferguson 
 V. Moore, 2 Wash. (Va.) 5S; Flury v. Grimes, 52 Ga. 341; Wells v. Hornish, 3 
 Penn. (Pen. & W.) 30; Smith v. Ambler, i Munf. (Va.) 596.] 
 
 297 
 
*254 DISTRAINTS FOR RENT [PART I. 
 
 at the time the distress is made (t) ; and (3) the rent must be 
 in arrear (J). 
 
 [254] I. The Right to Distrain is Incident to the Reversion. — 
 The power is, of common right, incident only to the rever- 
 sion ; so that, if a lessor assign his reversion, his right to 
 distrain is gone, and he can only recover by an action {k), 
 unless he have reserved to himself a right of entry and dis- 
 tress by contract with the lessee (/) ; but if he grant a lease 
 to commence after the expiration of the subsisting lease, his 
 reversion will still enable him to distrain under the earlier 
 lease {in). 
 
 Any reversion, however small, will suffice ; so that, if a 
 lessee sublet for a term shorter than his own, though but by 
 one day, he can distrain (it) ; but not if he assign his lease. 
 And it has been held that a tenant from year to year, sublet- 
 ting from year to year, may distrain {0). 
 
 If the landlord has assigned his reversion by way of mort- 
 gage, he cannot distrain for arrears of rent due under a lease 
 prior to the mortgage (/) ; but if, as is usually the case, the 
 mortgagor is permitted by the mortgagee to continue in the 
 receipt of the rents, he, during such permission, is presumed 
 by the law to have authority from the mortgagee, if it should 
 become necessary, to realize the rent by distress, and to dis- 
 train for it in the mortgagee's name, as his bailiff {q). If the 
 
 (;■) Gilb.26; Co. Lit. 95 a; Bull, u 9. N.S. 514. [A tenant may distrain against 
 
 (y) Bull. 119. his sub-tenant: Harrison v. Guill, 46 
 
 Ik) Gilb. 24; 2 Bac. Abr. 106; Bull. Ga. 427.] 
 26. [Slocum -'. Clark, 2 Hill (N.Y.) {n) Bull. 54; Woodf. 384; Wade 
 
 475; Cornell t-. Lamb, 2 Cow. (N.Y.) i/. Marsh, Latch, 21 1 ; [but not after his 
 
 652; Prescott ;'. De Forest, i6 Johns, own term has expired: Burne v. Rich- 
 
 (N.Y.) 159; Wallace v. Harmstad, 44 ardson, 4 Taunt. 720]. 
 Penn. St. 492. But an assignment of (0) O.xley v. James, 13 iL & W. 
 
 the rents, with a provision that the as- 209; Curtis v. AVheeler, i Moo. & M. 
 
 signor shall collect them and pay them 493. 
 
 over to the assignee, will not affect the {f) Bull. 74; Woodf. 3S7. 
 
 former's right of distraint: Bolton v. (j) Trent o. Hunt, 9 Exch. 14; 22 
 
 Duncan, 61 Ga. 103.] L.J. Ex. 318; 17 Jur. 899. [The mort- 
 
 (/) Bull. 54; Preece v. Corrie, 5 gagee's right to distrain depends upon 
 
 Bing. 24; 2 M. & P. 57; Pascoe v. his right to take the rents and profits. 
 
 Pascoe, 3 Bing. N.C. 898; 5 Scott, 117; See Bonders v. Van Sickle, 8 X.J. Law 
 
 3 Hodges, 188. (3 Halst.) 313; McKincher 7a Hawley, 
 
 (;«) Smith z/. Day, 2 JL & W. 684; 16 Johns. (N.Y.) 289; Meyers z/. AVhite, 
 
 M. & H. 135; Blachford v. Cole, 5 C.B. i Rawle (Penn.) 353.] 
 
 298 
 
CHAP. XIV.] AND SALES THEREUNDER. 255* 
 
 lease was granted after the date of the mortgage, although 
 this would be void as against the mortgagee, yet it is good as 
 between the mortgagor and his [255] tenant, at any rate, 
 until the mortgagee interferes ; and the mortgagor may dis- 
 train for rent due under it {r). 
 
 A mortgagee, after giving notice of his mortgage to the 
 tenant, is entitled to receive rent due under a lease prior to 
 the mortgage, and may distrain for it (s) ; but if the lease be 
 subsequent to the mortgage, mere notice is not enough (t) : 
 there must be something amounting to consent on the part 
 of the tenant, such as a payment of rent, or acquiescence in 
 a notice calling on him to pay rent (u), in other words, a 
 tenancy, express or implied, must exist between the tenant 
 and the mortgagee. A mortgagee may also distrain, when 
 by the attornment clause in the mortgage deed the mortgagor 
 has become tenant to the mortgagee ; and he may do so, even 
 though he have not executed the deed, if it be only a tenancy 
 at will or for a term for which a deed is not necessary (v). 
 
 Executors and administrators may by statute (w) distrain 
 upon land demised for any term or at will for arrears of rent 
 due to the lessor or landlord during his life-time in the same 
 manner as he might have done, and such arrears may be dis- 
 trained for after the end or determination of the term, or 
 lease at will, provided that the distress be made within six 
 calendar months after the determination of the-term or lease 
 
 (?■) Per Alderson, B., 9 Exch. at the possession and rents and profits as 
 
 p. 22. against the mortgagor. See Smith v. 
 
 (s) Moss z'. Gallimore, I Doug. 266; Taylor, 9 Ala. 633 ; Polhemus z^. Trainer, 
 
 I Sra. L.C. 269; Pope v. Biggs, 9 B. & 30 Calif. 685 ; Belloc v. Rogers, 9 
 
 C. 245. [Aniea, n. f.] Calif. 123; Ragland !<. Justices, to Ga. 
 
 (i) Evans v. Elliot, 9 A. & E. 342; 65; Ladue v. Detroit & Mil. R.R. Co., 
 
 I W.W. & H. 144; I P. & D. 256. 13 Mich. 380 ; McKincher v. Hawley, 
 
 (u) Rogers z;. Humphreys, 4 A. & E. 16 Johns. (N.Y.) 289; Myers z/. White, 
 299; 5 N. & M. 511; I PI. & W. 625. I Rawle (Penn.) 353; State zi. Laval, 4 
 [The tenant will be justified in attorning McCord (So. Car.) 336; Cheever v. Rut- 
 to the mortgagee : Baldwin v. Walker, land & Burlington R.R. Co., 39 Vt. 653.] 
 21 Conn. 168; Hill v. Jordan, 30 (z/) That is, not more than three 
 Maine, 367; Cook v. Johnson, 121 years, at a rent of not less than twp- 
 Mass. 326; Smith v. Shepard, 15 Pick, thirds of the improved value: Morton 
 (Mass.) 149; Cavis w. McClary, 5N.H. z/. Woods, 9 B. & S. 632; L.R. 4 Q.B. 
 529; Jones z/. Clark, 20 Johns. (N.Y.) 293; 37 L.J.Q.B. 81 ; 17W.R. 414. 
 51. But the right of the mortgagee de- (w) 32 Hen. VIH. c. 37, a. i ; 3 & 
 pends upon his legal estate, and right to 4 Wm. IV. c. 42, ss. 37, 38. 
 
 299 
 
*2S6-257 DISTRAINTS FOR RENT [PART I. 
 
 and during the continuance of the possession of the [256] ten- 
 ant from whom the arrears are due. Executors may distrain 
 at once, before probate (x) ; but administrators cannot do so 
 before the grant of letters of administration (j). Where 
 there are several executors or administrators, they being in 
 law one person, either or all may join in distraining, or one may 
 distrain alone for the whole rent due (s). Where a lessee 
 dies before the expiration of the term, and his executors or 
 administrators continue in possession, a distress may be 
 taken for the whole amount of rent due during the term (a), 
 not exceeding six years. 
 
 A married woman can in no case distrain alone {l>), though 
 she may, in some cases, as when she has a freehold estate in 
 the lands, join her husband in making a distress ; but, as a 
 general rule, a husband may distrain alone for all rent due in 
 the right of his wife, whether it accrue to her in her own 
 right or as executrix or administratrix (c) ; and he may dis- 
 train after her death. 
 
 Where there are several landlords having a joint interest 
 in the premises (as is generally the case with mortgagees, 
 trustees and executors), in which case they are legally de- 
 nominated joint tenants, they hold by one title and one 
 right, and cannot, therefore, have separate distresses ; but 
 one may distrain for rent due to himself and the others, even 
 without their express authority (d), and may appoint a bailiff 
 to distrain for the rent due to all (<?). 
 
 [257] But where several landlords are interested in the 
 premises as tenants in common, they have separate estates, 
 
 (x) AVhitehead z/. Taylor, lo A. & E. 289; Keller t'. Weber, 27 ild. 660; 
 
 210; 2 P. & D. 367; 4 Jur. 247; cf. Smith i'. Bobb, I2 Sm. & M. (Miss.) 
 
 Woolley V. CLirk, 5 B. & Aid. 744; i 322.] 
 
 D. &R.409; [but not for rent accruing (d) Bull. 54. [But this rule is al- 
 
 subsequently to the decease of the tes- tered by the statutes giving married 
 
 tator, and so belonging to the heir or women control over their separate estates, 
 
 devisee : Wright z'. Williams, 5 Cow. and the right to bring suits and act alone 
 
 (N.Y.) 501 ; De Coursey v. Guaranty with reference thereto.] 
 Trust Co., 81 Penn. St. 217]. (<r) 32 Hen. VIII. c. 37, ». 3. 
 
 ()') Keene v. Dee, I Ale. & N. (d) Leigh v. Shepherd, 2 B. & B. 
 
 496 n. 465; 5 Moore, 297; [Carter z;. Walters, 
 
 (z) Bull. 67, and infra. 63 Ga. 164]. 
 
 (,?) Wms. on Exors., 8th ed., 2009. {e) Robinson v. Hofman, 4 Bing. 
 
 [Merkle v. O'Neal, 5 Blackf. (Ind.) 562; i M. & P. 574; 3 C. & P. 234. 
 
 300 
 
CHAP. XIV. J AND SALES THEREUNDER. 258* 
 
 and must each distrain severally; or all may join in making 
 one distress for their several shares (f) : one cannot distrain 
 alone for the others, except as their agent. 
 
 2. There must be an Existing Tenancy at a Fixed Rent. — 
 There must be an actual existing tenancy at a fixed rent 
 {g) ; but very slight circumstances are enough to imply this 
 (h). If the landlord puts an end to a tenancy by notice 
 to quit, he "cannot distrain for rent accruing due after the 
 date mentioned in the notice has expired («), unless the cir- 
 cumstances show a new tenancy after that date {k). 
 
 Under the rule now under discussion, the landlord could 
 not distrain after the expiration of the tenancy, so that he 
 lost this form of remedy for any rent that might then be due. 
 To alter this it was enacted by parliament (/) that persons 
 having rent in arrear upon any lease for life or lives, or for 
 years, or at will, ended or determined, might distrain within 
 six calendar months after the determination of the term, in 
 the same manner as they might have done if the lease had 
 not determined ; provided that the distress were made during 
 the continuance of the landlord's interest, and during the 
 possession of the tenant from whom the arrears were due : a 
 power which was by other statutes given to executors and 
 administrators (m). 
 
 Upon this statute it has been decided that a distress may 
 be made after the six months, during the period that the 
 tenant, according to the custom of the country, has the away- 
 going [258] crop on the premises («), or the use of the prem- 
 ises under such custom {o) ; and the statute is not confined 
 
 (/) Bull, 48. [See De Coursey v. 2 Cow. (N.Y.) 652; Jacks v. Smith 
 
 Guaranty Trust Co., 8l Penn. St. i Bay (So. Car.) 315.] 
 217.] (i) Williams v. Stiven, 9 Q.B. 14; 
 
 (g-) Gilb. 26; Dunk «>. Hunter, 5 B.& 15 L.J.Q.B. 321; 10 Jur. 804. 
 Aid. 322. [Smithz/.Turnley, 44Ga. 243; {k) Jenner z^. Clegg, i Moo. & Rob. 
 
 Scruggs V. Gibson, 40 Ga. 511, 519; 213. 
 
 Spencer v. Burton, 5 Blackf, (Ind.) 57; (/) 8 Anne, c. 14, ss. 6, 7. [And 
 
 Werner v. Ropiequet, 44 Ills. 522; Far- see Christman v. Floyd, 9 Wend. (N.Y.) 
 
 rington v. Baley, 21 Wend. (N.Y.) 65; 340; Williams v. Terboss, 2 id. 148; 
 
 Schuyler z/. Leggett, 2 Cow. (N.Y.) 660; s.c, 5 Cow. (N.Y.) 407.] 
 Bain v. Clark, 10 Johns. (N.Y.) 424; (?«) See supra, p. 255. 
 
 Greider's Appeal, 5 Penn. St. 422.] (ri) Beavan v. Delahay, I H. Bl. 5. 
 
 (//) Woodf. 116. [Cornell z*. Lamb, {0) Knight t/. Bennett, 3 Bing. 364. 
 
 301 
 
*258 DISTRAINTS FOR RENT [PART I. 
 
 to a wrongful holding over by the tenant, but applies to a 
 case where the landlord permits the tenant to retain posses- 
 sion of part of the premises after the term has expired (/) ; 
 and the distress may be made during the occupation of the 
 tenant's executor, for arrears accrued during the tenant's life- 
 time {q). 
 
 3. Rent Must be in Arrear. — The right cannot arise un- 
 til the rent is in arrear, that is, until after midnight on the 
 day on which it falls due (r), or, if there be a condition prece- 
 dent, then until after that condition is fulfilled {s) ; and the 
 right will be destroyed by release under seal, payment, or 
 anything equivalent to payment, such as a proper tender of 
 the amount due {t). 
 
 It is not absolutely necessary that a bailiff employed to 
 effect a distress should be armed with a distress warrant ; 
 for, although a man distrain without express authority, sub- 
 sequent assent on the part of the person for whom the dis- 
 tress was made will cure the defect {u) ; but it will not be 
 prudent in a bailiff to act without a warrant. 
 
 Warrant by Whom to be Signed. — The distress warrant {v) 
 should be signed by the person who is entitled to make the 
 distress, and in the case of a joint distress it should be signed 
 
 (/) Nuttall V. Staunton, 4 B. & C. 484; O'Farrell v. Nance, 2 Hill (So. 
 
 51; 6D. &R. 155. [Webber 2/, Shear- Car.) 484; ■Williams v. Howard, 3 
 
 man, 6 Hill (N.Y.) 20; s.c, 3 id. 547. Munf. (Va.) 277. But the right of dis- 
 
 But they must be the same premises: tress depends solely upon the rent being 
 
 Bukup P.Valentine, 19 Wend. (N.Y.) in arrear, not upon the expiration of the 
 
 554, and the tenants must remain the period for which it is claimed: Atkins 
 
 same : Bell v. Potter, 6 Hill (N.Y.) v. Byrnes, 71 Ills. 326.] 
 497-] (j) Mechelen v. Wallace, 7 A. & E. 
 
 {q) Braithwaite --. Cooksey, I H. 54. 
 Bl. 465. (/) Woodf. 377. [Hunter v. Le 
 
 (r) Bull. 108; Cutting v. Derby, 2 Conte, 6 Cow. (N.Y.) 728.] As to 
 
 W. Bl. 1075. [Gano v. Hart, Hardin tender, see infra, p. 274. 
 (Ky.) 297. See Fry !>. Breckenridge, 7 (w) Trevillian z^. Pine, 11 Moore, 112; 
 
 B. Mon. (Ky.) 31 ; Evans v. Herring, Duncan j. Meikleham, 3 C. & P. 172; 
 
 27 N.J. Law (3 Dutch.) 243; Peters v. Bull. 130. [See Bigelow v. Judson, 19 
 
 Newkirk, 6 Cow. (N.Y.) 103; Russell Wend. (N.Y.) 229; Franciscus i;. Reig- 
 
 V. Doty, 4 id. 576; Diller v. Roberts, art, 4 Watts (Penn.) 98; Jones z'. Gun- 
 
 13 Serg. & R. (Penn.) 60; Beyer v. drim, 3 Watts & S. (Penn.) 531.] 
 Fenstermacher, 2 Wharton (Penn.) 95; (v) See supra, p. 252. [Jean v. 
 
 Bailey v. Wright, 3 McCord (So. Car.) Spurrier, 35 Md. 1 10.] 
 
 302 
 
CHAP. XIV.] AND SALES THEREUNDER. 259-260* 
 
 by all the parties [259] distraining {w), or by one only, to 
 authorize a distress for rent due to all {x). 
 
 Effect of Warrant. — The warrant amounts to a representa- 
 tion that the person signing it has a right to distrain, and 
 therefore gives, by implication, an indemnity to the broker, 
 extending to all acts legally done by him in pursuance of the 
 authority {y) ; but it will not protect him from the conse- 
 quences of doing, in the process of the distress and sale, any 
 improper act : for instance, if he seizes goods privileged from 
 distress {z), or negligently damages goods in removing 
 them {a). If it is intended that the bailiff shall be held harm- 
 less for any act that might otherwise be outside his authority, 
 it should be stated in express terms upon the warrant. In a 
 case where, brokers being ordered to seize goods on an auc- 
 tioneer's premises, third parties claimed the goods as their 
 own, and the brokers required an indemnity from their em- 
 ployer, which he gave them, and the third parties recovered 
 in an action damages against the brokers, it was held that 
 the employer was bound to make good to the brokers the 
 loss they had sustained {b). 
 
 The employer, though not liable to the tenant for acts 
 done by the broker which are not warranted by his authority 
 and are illegal, such, for example, as seizing fixtures (c), is 
 liable for irregularities committed by him in making and 
 conducting the distress, such as selling the goods without 
 [260] giving the usual notice {d) or without appraisement {e) ; 
 
 (w) BuUer's Case, i Leon. 50. instructions of his principal or master 
 
 (jc) Leigli V. Shepherd, 2 B. & B. and in consequence of his execution of 
 
 465; Robinson z/. Hofman, 4 Bing. 562. the agency or service with which he is 
 
 [See Howard w. Dill, 7 Ga. 52.] entrusted: Beach v. Branch, 57 Ga. 
 
 (j) BuUen&Leake, 177; 'Woodf.417. 362; Jacobs z'. Pollard, 10 Cush. (Mass.) 
 
 [Lord V. Brown, 5 Denio (N.V.) 345.] 287; Rogers v. Kneeland, 10 Wend, 
 
 (z) Toplis V. Grane, 5 Bing. N.C. (N.Y.) 218; Coventry v. Barton, 17 
 
 636; 7 Scott, 620. Johns. (N.Y.) 142; Maitland v. Mar- 
 
 (fl) Draperi'.Thompson,4C.&P.84. tin, 86 Penn. St. 120.] 
 
 (^) Toplis V. Grane, ubi supra ; and (<^) Freeman v. Rosher, 13 Q.B. 780; 
 
 seelbbettt/. Dela Salle, 6 H. &N. 233; 18 L.J.Q.B. 340; I3jur. 881; cf. Lewis 
 
 30 L.J. Exch. 44. [The agent or ser- i/. Read,l3M. &W. 834; 14L.J.EX.295. 
 
 vant is entitled to be indemnified by his (rf) See infra, p. 277. 
 
 principal or master for all losses and {e) Haselere v. Lemoyne, 5 C.B.N.S. 
 
 damages which, without fault on his 530; 28 L.J.C.P. 103 ; 4 Jur. N.S. 1279. 
 
 part, he has incurred by following the See also infra, p. 277. 
 
*26o DISTRAINTS FOR RENT [PART I. 
 
 and the broker is not only liable to the tenant for the conse- 
 quences of such irregular proceedings, but if, through his 
 negligence or want of knowledge, the landlord is put to any 
 loss (as he would be, if the tenant recovered damages against 
 him in respect of any such irregularity), he will also be liable 
 to compensate the latter (/). 
 
 At what Hour a Distress may be made. — A distress before 
 sunrise or after sunset is illegal (g) ; and, therefore, a distress 
 must not be made until after sunrise on the day after the last 
 arrear of rent falls due, and must be between the hours of 
 sunrise and sunset ; and persons distraining are bound to 
 take care that they distrain beyond doubt in the day-time, 
 and they ought not to go so very near the limits as to raise 
 any question on the subject (k). 
 
 "Where. Fraudulent Removal. — The general rule is that the 
 distress can only be made upon the lands or premises out of 
 which the rent issues (z). To this rule, however, the follow- 
 ing exceptions have been created by statute : — The landlord 
 may distrain cattle or stock of his tenant depasturing on any 
 common appendant or appurtenant, or in anywise belonging, 
 to all or any part of the premises demised (j) ; andj in order 
 to prevent tenants from avoiding distresses by fraudulent re- 
 moval of their goods, it was enacted by statute 1 1 Geo. II. 
 c. 19, s. i., that "in case any tenant or tenants, lessee or 
 lessees, for life or lives, term of years, at will, sufferance 
 
 (/) Woodf. 417. [As between the 29 L.J. Ex. 271; 2 L.T.N.S. 361; 6Jur. 
 
 principal and the agent, the latter must N.S. 983. [Sherman v. Dutch, 16 Ills, 
 
 himself answer for the consequences of 283.] 
 
 his own negligence or misconduct : Ship- (A) Nixon ». Freeman, 29 L.J. Ex. 
 
 herd v. Field, 70 Ills. 438; Bunger v. 274. 
 
 Roddy, 70 Ind. 26; Godman i;. Meixsel, (j) Bull. 124; Stat. Marlb. 52 Hen. 
 
 65 Ind. 32; Howe v. Sutherland, 39 III. c. 15. [Burr v. Van Buskirk, 3 
 
 Iowa, 484; Owensboro Bank ». Western Cow. (N.Y.) 263; Winslow c. Henry, 
 
 Bank, 13 Bush (Ky.) 526; Savage v. 5 Hill (N.Y.) 481; Mosby v. Leeds, 3 
 
 Birckhead, 20 Pick. (Mass.) 167; Dodge Call (Va.) 439. A distress warrant 
 
 v. Tileston, 12 Pick. (Mass.) 328, 332; may usually with us be levied upon the 
 
 Heineman v. Heard, 62 N.Y. 448; Wil- tenant's property if found anywhere in 
 
 liams V. Littlefield, 12 Wend. (N.Y.) the county: Hale v. Burton, Dudley 
 
 362; Grant v. Ludlow, 8 Ohio St. i; (Ga.) 105. See Uhl v. Dighton, 25 
 
 Nicolai v. Leyon, 8 Oregon, 56; Hun- Ills. 154; Lougee v. Colton, 9 Dana 
 
 gerford v. Scott, 37 Wise. 341.] (Ky.) 123.] 
 
 (/) Tutton V. Darke, 5 H. & N. 647; (J) 11 Geo. II. t. 19, s. 8. 
 
 304 
 
CHAP. XIV.] AND SALES THEREUNDER. 261-262* 
 
 or otherwise, of any messuages, lands, tenements [261] or 
 hereditaments, upon the demise or holding whereof any rent 
 is or shall be reserved, due or made payable, shall fraudu- 
 lently or clandestinely convey away, or carry off or from such 
 premises, his, her or their goods or chattels, to prevent the 
 landlord or lessor, landlords or lessors, from distraining the 
 same for arrears of rent so reserved, due or made payable, 
 it shall and may be lawful to or for every landlord &c., or 
 any person or persons by him, her or them for that purpose 
 lawfully empowered, within the space of 30 days next ensu- 
 ing such conveying away or carrying off such goods or 
 chattels as aforesaid, to take and seize such goods and 
 chattels, wherever the same shall be found, as a distress for 
 the said arrears of rent, and the same to sell, or otherwise 
 dispose of, in such manner as if the said goods and chat- 
 tels had actually been distrained by such landlord &c. in and 
 upon such premises for such arrears of rent ; any law, custom 
 or usage to the contrary in anywise notwithstanding." Sect. 
 2 provides "that no landlord or lessor, or other person enti- 
 tled to such arrears of rent, shall take or seize any such goods 
 or chattels as a distress for the same, which shall be sold 
 bond fide and for a valuable consideration, before such seizure 
 made, to any person or persons not privy to such fraud as 
 aforesaid." Sect. 7 enacts "that where any goods or chattels 
 fraudulently or clandestinely conveyed or carried away by any 
 tenant or tenants, lessee or lessees, his, her or their servant 
 or servants, agent or agents, or other person or persons aid- 
 ing or assisting therein, shall be put, placed or kept in any 
 house, barn, stable, out -house, yard, close or place locked up, 
 fastened or otherwise secured, so as to prevent such goods 
 or chattels from being taken and seized as a distress for 
 arrears of rent, it shall and may be lawful for the landlord or 
 landlords, lessor or lessors, his, her or their steward, [262] 
 bailiff, receiver, or other person or persons empowered to take 
 and seize, as a distress for rent, such goods and chattels (first 
 calling to his, her or their assistance the constable, head- 
 borough, borsholder or other peace officer of the hundred, 
 borough, parish, district or place where the same shall be 
 
 305 
 
*263 DISTRAINTS FOR RENT [PART I. 
 
 suspected to be concealed, who are hereby required to aid 
 and assist therein ; and, in case of a dwelling-house, oath 
 being also first made before some justice of the peace of a 
 reasonable ground to suspect that such goods or chattels are 
 therein), in the day-time to break open and enter into such 
 house, barn, stable, out-house, yard, close and place, and to 
 tike and seize such goods and chattels for the said arrears of 
 rent, as he, she or they might have done by virtue of this or 
 any former act, if such goods and chattels had been put in 
 any open field or place." 
 
 The words in the statute are " fraudulent ^^ clandestine " 
 and apply to all cases where the tenant removes the goods in 
 order to deprive the landlord of his remedy by distress ; and, 
 therefore, if the tenant remove the goods openly so that the 
 removal cannot be called clandestine, yet, if it be fraudulent 
 (which is a question for the jury), the landlord is entitled to 
 seize the goods under the statute ik). But the mere removal 
 from the premises, even when rent is in arrear, is not of itself 
 sufficient to justify the landlord in following and seizing the 
 goods, unless he can prove that the removal was effected with 
 a view to elude a distress (/). 
 
 The removal must have taken place after the rent has 
 become due (;«). The rent is due, though not in arrear, on 
 [263] quarter-day ; therefore, if the tenant fraudulently removes 
 the goods on the day on which the rent falls due, the land- 
 lord may on the following day (for the rent is not in arrear 
 till then), and within thirty days from the date of the re- 
 moval, under the statute follow and seize the goods («). The 
 statute applies to the goods of the tenant only, and not to 
 
 (Jt) Opperman I*. Smith, 4. D. & R. 217. But in New Jersey the goods may, 
 
 33; Bach V. Meats, 5 M. cS: Sel. 200; for thirty days, be taken for rent accru- 
 
 John V. Jenkins, I C. & M. 227. [Jen- ing subsequently to the removal : Weiss 
 
 kins V. Calvert, 3 Cranch, C.C. 216.] v. Jahn, 37 N.J. Law, 93. But equity 
 
 (/) Parry v. Duncan, 7 Bing. 243. will not compel the tenant to disclose 
 
 (ot) Rand v. Vaughan, i Bing. N.C. the whereabouts of the goods in order 
 
 767; "Watson V. Main, 3 Esp. 15. [See to enable the landlord to distrain them: 
 
 Dorsey v. Hays, 7 Harr. & J. (Md.) Wiggins u. Armstrong, 2 Johns. Ch. 
 
 370; Brown v. Duncan, Harp. (So. (N.Y.) 144; Reed v. Darrow, 2 Edw. 
 
 Car.) 337. So in Pennsylvania : Hoops Ch. (N.Y.) 412.] 
 
 V. Crowley, 12 Serg. & R. (Penn.) 219; («) Dibble v. Bowater, 2 E. & B. 
 
 Grace v. Sheively, 12 Serg. & R. (Penn.) 564 ; 22 L.J.Q.B. 396. 
 
 306 
 
CHAP. XIV.] AND SALES THEREUNDER. 264* 
 
 those of a stranger, (o). Wherever it is necessary to use 
 force (as, to break into premises), a constable must be pres- 
 ent, and if the goods removed are secured in a dwelling- 
 house, a previous application must be made to a magistrate : 
 the landlord, to be justified under the statute, must fulfil the 
 conditions imposed by it (/) ; but it is not necessary in other 
 cases that a party seizing goods fraudulently removed should 
 first call to his assistance an ordinary peace officer : it is suffi- 
 cient if he be assisted by a person appointed special constable 
 for the purpose {q). The proceedings after seizure are the 
 same as in ordinary cases. 
 
 Distress may be Made on Part of the Land. — The distress may 
 be made on any part of the land ; and, therefore, where a 
 tenant, after the expiration of the lease, continued in posses- 
 sion of a part only of the land demised, and the landlord dis- 
 trained, it was held that he could distrain on the part for 
 arrears of rent of the whole {r). 
 
 But not on Highway. Exception. — It is expressly enacted {s) 
 that no distress shall be made on a highway ; but if the land- 
 lord or his agent comes to distrain cattle which he sees upon 
 the land, and the tenant or any other person drives the cat- 
 tle off the land, the landlord or his agent may then follow 
 and distrain them even [264] on the highway {i). But if the 
 cattle of themselves, after the view, go out of the land, or if 
 the tenant or any other person, after the view, remove them 
 for any other purpose than to prevent the distress, the land- 
 lord cannot distrain them {u). 
 
 Entry upon the Premises. — It is not lawful for the bailiff to 
 make a forcible entry upon the premises in order to dis- 
 train. He may not, therefore, break open the outer door {v). 
 
 (o) Thornton v. Adams, 5 M. & Sel. (r) Nuttall v. Staunton, 4 B. & C. 
 
 38; Postman z/. Harrell, 6 C. & P. 225; 51. [Brown v. Duncan, Harper (So. 
 
 Fletcher v. Marillier, 9 Ad. & E, 457. Car.) 337; Mosby u. Leeds, 3 Call 
 
 [Hastings v. Belknap, I Denio (N.Y.) (Va.) 439.] 
 
 190; Acker v. Witherell, 4 Hill (N.Y.) (s) Stat. Marl., 52 Hen. III. c. 15. 
 
 112; Frisbey w. Thayer, 25 Wend. (N. (/) Bull. 125, 126. 
 
 Y.) 396; Martini/. Black, 9 Paige (N.Y.) (k) Co. Lit. 161 a; 2 Inst. 132. 
 
 641 ; Sleeper v. Parrish, 7 Phila. 247.] [Christman v. Floyd, 9 Wend. (N.Y.) 
 
 (/) Rich j/.Woolley, 7 Bing. 651,660. 340.] 
 
 (?) Cartwright z/. Smith, I M.&Rob. (v) Semayne's Case, 5 Co. R. 91; 
 
 284. I Sm. L.C. 105. 
 
 307 
 
*26$ DISTRAINTS FOR RENT [PART I. 
 
 And this rule is not confined to dwelling-houses : he may 
 not break open any building (w). On the same principle, if 
 a window is fastened, he may not open it (x) ; and even if 
 the window be shut merely, but not fastened, it is a trespass, 
 if he open and enter by it (j) ; nor may he, if the front door 
 be shut, climb over a fence at the back and so effect an en- 
 trance (s). If he enter in a manner in which he has no right 
 to enter, the distress is void, and he is a trespasser (a) ; but 
 if he can get into the premises by any means without com- 
 mitting a trespass, he can then lawfully distrain (3). Where 
 the landlord occupied the floor above the tenant, there being 
 nothing but a board between them, it was held that an entry 
 effected by removing the board was not a trespass (c) ; and 
 the landlord may open the outer door in the ordinary way in 
 which persons using the premises are accustomed to open 
 [265] it (<2^) ; and he may enter through an open window (e) ; 
 and it has been held that he may climb over a fence and so 
 gain access to the house by an open door {/). 
 
 If the bailiff be forcibly turned out, he is justified in mak- 
 ing a forcible re-entry and in breaking in the door to that 
 end (g-) ; and if he leave the premises for a temporary pur- 
 pose, not intending to abandon the distress, and find the 
 door locked on his return, he may break it open (/^). 
 
 ■What Goods may not be Seized. — - With respect to the things 
 that may be taken, it may be stated as a general rule that all 
 
 (w) Brown v. Glenn, 20 L.J.Q.B. Williams v. Spencer, 5 Johns. (N.Y.) 
 
 205; 16 Q.B. 254; 15 Jur. 1S9. [Dent 352; State v. Armfield, 2 Hawks (Nor. 
 
 V. Hancock, 5 Gill (Md.) 120,] Car.) 246; State v. Thackam, i Bay 
 
 (x) Attack V. Bramwell, 3 B. & S. (So. Car.) 358.] 
 520; 32 L.J.Q.B. 146; 9 Jur. N.S. 892; (a') Ryan v. Shilcock, 7 Exch. 72; 
 
 Hancock v. Austin, 14 C.B.N.S. 634; 21 L.J. Ex. 55; 15 Jur. 1200. 
 32 L.J.C.P. 252; 8 L.T.N.S. 429; II (e) Tutton 7/.Darke, 5 H. & N.647; 
 
 W.R. 833. 29 L.J. Ex. 271. 
 
 (j/) Nash V. Lucas, L.R. 2 Q.B. 590. (/) Eldridge v. Stacey, 15 C.B.N.S. 
 
 [Curtis ». Hubbard, I Hill (N.Y.) 336.] 458; 10 Jur. N.S. 517; 9 L.T.N.S. 291; 
 
 {z) Scott V. Buckley, 16 L.T.N.S. 12 W.R. 51. 
 573. Cf) Eagleton v. Gutteridge, ii M. & 
 
 (a) Attack ji. Bramwell, «W j«/r3. W. 465; 2 D.N.S. 1053; 12 L.J. Ex. 
 
 (i) Bull, 132. 859. 
 
 (<r) Gould V. Bradstock, 4 Taunt. (i) Bannister v. Hyde, 2 E. & E. 
 
 562. [After entering an open outer door, 627; 29 L.J.Q.B. 141; i L.T.N.S. 438; 
 
 the bailiff may break an inner door: 6 Jur. N.S. 171. 
 
 308 
 
CHAP. XIV.] AND SALES THEREUNDER. 266* 
 
 movable chattels and personal effects found upon the prem- 
 ises are liable to be taken, whether they be the property of 
 the tenant or of any other person (?).. To this rule there 
 were always at common law various exceptions, partly arising 
 from the nature of the remedy, which was that goods could 
 only be taken as a pledge (upon which ground nothing could 
 be taken but what could be restored again in the same plight), 
 partly from grounds of public policy, to prevent breaches of 
 the peace and for the protection of commerce (7). To these 
 exceptions others have been added by statute, and the whole 
 may now be stated as follows : — 
 
 1. Things in actual and personal use ; because to seize 
 these might lead to a breach of the peace. Therefore, a 
 horse, while a man is riding upon him, or an axe in a man's 
 [266] hand, cutting wood, and the like, cannot be distrained 
 for rent (k). On the same principle, wearing apparel may 
 not be taken while in wear ; though it seems that it may be, 
 if the wearer have laid it aside, though merely for the pur- 
 pose of repose (/). 
 
 2. Things delivered to a person exercising a trade, to be 
 carried, wrought or managed in the way of his trade ; as, 
 a horse standing in a smith's shop, to be shod, or materials 
 sent to a weaver, to be woven, or cloth to a tailor, to be 
 made up (m). The exemption applies also to goods in the 
 
 (;■) Cf. mpra, 252. [Howard v. L.C. 439, where all the exceptions are 
 
 Ramsay, 7 Har. & J. (Md.) 113; dealt with in the notes. [Given v. 
 
 Spencer v. McGowen, 13 Wend. (N.Y.) Blann, 3 Blackf. (Ind.) 64; Van Sick- 
 
 256; "Whiting V. Lake, 91 Penn. St. ler v. Jacobs, 14 Johns. (N.Y.) 434; 
 
 349 ; Kleber v. Ward, 88 Penn. St. 93 ; Davis v. Arledge, 3 Hill (So. Car.) 
 
 Blanche v. Bradford, 38 Penn. St. 344; 170.] 
 
 O'Donnell v. Seybert, 13 Serg. & R. (/■) Simpson v. Hartopp, i Sni. 
 
 (Penn.) 54; Weidell v. Rosberry, id. L.C. 439, 444; Co. Lit. 47 a. [Such 
 
 178, 1 80; Reeves 7^. McKenzie, I Bailey articles are exempted only while in 
 
 (So. Car.) 497; Davis w. Payne, 4 Rand, actual use!", if there is a sufficiency of 
 
 (Va.) 332. But the right to distrain other goods to be distrained : Trieber 
 
 the property of others than the tenant v. Knabe, 12 Md. 491.] 
 is not favored by the decisions, and is (/) Bissett v. Caldwell, Peak. 50; 
 
 usually limited by statutes. See Mat- Baynes v. Smith, i Esp. 20S. 
 thews t/. Stone, I Hill (N.Y.) 565; Gil- (ni) Simpson v. Hartopp, i Sni. 
 
 bert I/. Moody, 17 Wend. (N.Y.) 354; L.C. 439, 442. [Rea v. Burt, 8 La. 
 
 Riddle v. Welden, 5 Whart. (Penn.) I; 509; Hosldns v. Paul,9N.J.L.(4 Halst.) 
 
 Davis V. Payne, 4 Rand. (Va.) 332.] no. But this rule does not apply to 
 
 (y) See Simpson v. Hartopp, I Sm. property used independently of the 
 
 309 
 
*267 DISTRAINTS FOR RENT [PART I. 
 
 hands of a carrier, for carriage, goods of a traveller at an 
 inn («), goods on the premises of a factor, for sale, or of a 
 warehouseman, for safe custody {o), goods pledged at a pawn- 
 broker's (/), goods on the premises of an auctioneer for the 
 purpose of sale {q), and the carcase of a beast sent to a 
 butcher to be slaughtered {r). It has been said that the test 
 is whether the goods are placed in the hands of the tenant 
 with a view to having labour and skill bestowed on them, or 
 for the purpose of buying and selling (s) ; and on this ground 
 it has been held that a carriage and horses standing at livery 
 are not exempt {t) ; but this decision has been doubted, and 
 it appears to be scarcely consistent with other decisions {u) : 
 the true reason for the [267] exemption seems to be that the 
 goods are held in the way of trade ; and on this ground it 
 has been suggested that cattle which are taken in by the 
 tenant to feed for hire (which is called agisting) could not be 
 seized, if the tenant carried on the trade of agisting cattle (v) ; 
 and it has been decided that furniture at a depository is 
 exempt (w). But the exemption only attaches to the prem- 
 ises ; thus, although goods sent to an auctioneer to sell cannot 
 be seized while on his premises (x), they will not be privi- 
 leged upon premises in the occupation of another person (_y), 
 
 tenant's control: Karns z-. McKinney, • (/) Swire v. Leach, i8 C.B.N.S. 
 
 74 Penn. St. 387.] 479; 34 L.J.C.P. 150; II L.T.N.S. 
 
 («) Pel- Blackburn, J., in Lyons v. 6S0; n Jur. N.S. 179; 13 W.R. 385. 
 
 Elliott, I Q.B.D. 214; 45 L.J.Q.B. 159. (</) Brown v. Arundell, 10 C.B. 55; 
 
 [But this exemption will not protect 20 L.J.C.P. 30; Williams v. Holmes, 8 
 
 goods deposited with an innkeeper by Ex. 861; 22 L.J. Ex. 283. [Himeley v. 
 
 one who was not a guest at the inn : Wyatt, : Bay (So. Car.) 102.] 
 
 Harris v. Boggs, 5 Blackf. (Ind.) 4S9, (r) Brown v. Shevill, 2 A. & E. 
 
 or goods left with the innkeeper for his 138; 4 N. & M. 277. 
 
 personal use: Trieber v. Knabe, 12 (s) Parsons z/. Gingell, 4 C.B. 545; 
 
 Md. 491.] 16 L.J.C.P. 227; II Jur. 437. 
 
 (0) Thompson z'. Mashiter, I Bing. (/) 3id. 
 
 283; 8 Muore, 254. [Connah z/. Hale, (2<) See Miles z/. Furber, L.R. 8 Q.B. 
 
 23 Wend. (N.Y.) 462; Owen z/. Boyle, 77; 21 W.R. 262. [Youngblood v. 
 
 22 Maine, 47; Karns v. McKinney, 74 Lowry, 2 McCord (So. Car.) 39.] 
 
 Penn. St. 387; Bevan z/. Crooks, 7 Watts (z/) Hid. [Cadwalader v. Tindall, 
 
 & S. (Penn.) 452; McCreery v. Clafflin, 20 Penn. St. 422.] 
 
 37 Md. 435; Cadwalader z*. Tindall, 20 (z») 3id. 
 
 Penn. St. 422; Home Sewing Machine (jr) Brown v. Arundell, 10 C.B. 55; 
 
 Co. z'. Sloan, 87 Penn. St. 43S; Brown 20 L.J.C.P. 30. 
 
 f. Sims, 17 Serg. & R. (Penn.) 138; (j) Lyons z/. Elliott, i Q.B.D. 214; 
 
 Himeley z*. Wyatt, I Bay (So. Car.) 102.] 45 L.J.Q.B. 159. [And only the goods 
 
 310 
 
CHAP. XIV.] AND SALES THEREUNDER. 268* 
 
 3. Goods in the custody of the law, such as cattle distrained 
 damage feasant, or goods taken by the sheriff under an exe- 
 cution (s) ; and goods are equally in the custody of the law, 
 whether in the hands of the sheriff or of his vendee (a). At 
 common law the landlord's remedy was entirely defeated by 
 this rule, if a creditor had already succeeded in levying an 
 execution ; but early in the last century it was enacted that 
 no goods taken under an execution on lands leased for life, 
 years or will, or otherwise, might be removed, unless the 
 party at whose suit the execution issued, before the removal 
 of the goods, paid the arrears of rent due at the time of the 
 execution, not exceeding one year's rent (6). 
 
 Where growing crops have been seized and sold under a 
 7?. fa. (c), but not removed, they may be distrained for the 
 [268] rent that may accrue and become due after the date of 
 such seizure and sale, provided there be no other sufficient 
 distress on the premises (d). 
 
 Under the Bankruptcy Act, 1869 (e), the landlord's right 
 to distrain is limited to one year's rent due prior to the bank- 
 ruptcy of the tenant. 
 
 4. Things annexed to the freehold, as, furnaces, millstones, 
 chimney-pieces and the like, cannot be distrained, because 
 they cannot be taken away without damage to the freehold, 
 
 of strangers, not those of the tenant Johnson, 6 Gill (Md.) 354; Guest v. 
 
 himself, are protected : Hoskins j/. Paul, Opdyke, 31 N.J. Law, 552; Olcott v. 
 
 9 N.J. Law (4 Halst.) no.] Frazier, 5 Hill (N.Y.) 562; Millard z,. 
 
 (2) Co. Lit. 27 a. [Hamilton v. Robinson, 4 Hill (N.Y.) 604; Peters v. 
 
 Reedy, 3 McCord (So. Car.) 38. But Newkirk, 6 Cow. (N.Y.) 103; Russell 
 
 goods held merely under attachment are i/. Doty, 4 id. 576; Farrington v. Baley, 
 
 not exempted: Acker v. Witherell, 4 21 Wend. (N.Y.) 65; Van Rensselaer 
 
 Hill (N.Y.) 112. Goods in the hands v. Quackenboss, 17 id. 34; Spencer v. 
 
 of a receiver or other officer of court are McGowen, 13 id. 256; Trappan v. 
 
 not distrainable without leave of the Morie, 18 Johns. (N.Y.) i; Hazard v. 
 
 court; Everett v. Neff, 28 Md. 176; Raymond, 2 id. 478; Brown v. Fay, 6 
 
 Martin t;. Black, 9 Paige (N.Y.) 641; Wend. (N.Y.) 392; West v. Sink, 2 
 
 Noe i/. Gibson, 7 id. 513; Matter of Yeates (Penn.) 274; Hamilton !<. Reedy, 
 
 Hopper, 5 id. 489.] 3 McCord (So. Car.) 38.] 
 
 (a) Wharton v. Naylor, 12 Q.B. 673; (c) Under stat. 2 W. & M. sess. i, c. 
 
 17 L.J.Q.B. 278. 5, s. 3. As to county court process, see 
 
 (i) 8 Anne, u. 14,5. I. [See Biddle 19 & 20 Vict. c. 108, s. 75. 
 V. Biddle, 3 Harr. (Del.) 539; Buckey (d) 14 & 15 Vict. c. 25, s. 2. 
 
 v. Snouffer, 10 Md. 149; Fisher v. {e) 32 & 33 Vict. c. 71, s. 34. 
 
*26g DISTRAINTS FOR RENT [PART I. 
 
 which the law will not allow (/). Even fixtures which the 
 tenant has a right to remove during his term are not dis- 
 trainable {g) ; wherein is a distinction between an execution 
 and a distress, for under the former tenants' fixtures may be 
 seized (k). 
 
 If, however, the landlord merely affects to distrain upon 
 the fixtures, as by including them in the notice of distress 
 and advertising them for sale, but does not seize or sever 
 them, that will not give the tenant a cause of action {i). 
 
 5. Things that cannot be restored again in as good a plight 
 as they were in at the time the distress was taken (_/'). This 
 rule arose from the fact that at common law the goods were 
 taken only as a pledge and could not be sold (k). Hence it 
 has been said that money, unless in a bag, could not be dis- 
 trained, because the identical pieces could not be known (/). 
 For this reason perishable commodities, such as butcher's 
 [269] meat, cannot be taken (m) ; and fixtures may be con- 
 sidered as coming also under this rule (7/). 
 
 6. Animals wild by nature, such as rabbits, deer &c. ; for 
 the law recognizes no property in such (<?). But deer in an 
 enclosure not being a park are not considered as fern na- 
 tures (/). It was formerly said that dogs could not be dis- 
 trained, as presumably worthless ; but the better opinion is 
 that they now may ; and there is no doubt that they now 
 form a valuable kind of property {q). 
 
 (/) Simpson i/. Hartopp, i Sm. (i) See supra, p. 252. [Van Sick- 
 
 L.C. 439; Cu. Lit. 47 a. ler v. Jacobs, 14 Johns. (N.Y.) 434; 
 
 (f) Darby v. Harris, i Q.B. 895; Davis ii. Arledge, 3 Hill (So. Car.) 1 70.] 
 I G. & D. 234; 5 Jur. 988. [Fixtures (/) i Rol. Abr. 607. 
 
 cannot be distrained unless they have {m) Morley v. Pincombe, 2 Exch. 
 
 been detached from the realty by the loi; 18 L.J, Ex. 272. [Given z'.Blann, 
 
 tenant : Reynolds c. Shuler, 5 Cow. 3 Blackf. (Ind.) 64.] 
 (N.Y.) 323; Cresson ». Stout, i7johns. («) Darby v. Harris, i Q.B. 895; 
 
 (N.Y.) 116; Vausse v. Russell, 2 Mc- i G. & D. 234; 5 Jur. 988. 
 Cord (So. Car.) 329.] But see, as to (0) Co. Lit. 47; Com. Dig. C. 
 
 machinery fixed to the freehold only (/) Davies v. Powell, Willes, 46. 
 
 for the purpose of being more conven- (y) See notes to Simpson v. Har- 
 
 iently used as machinery, Hellawell v. topp, i Sm. L.C. 450; Bull. 90. [So 
 
 Eastwood, 6 Ex. 295. it was held in South Carolina that a 
 
 {/t) Poole's Case, i Salk. 368. slave might be taken on a distress war- 
 
 {i) Beck -v. Denbigh, 29 L.J.C.P. rant: Bull v. Horlbeck, i Bay (So. 
 
 273. Car.) 301. But see Phaelon v. Mc- 
 
 (7) Co. Lit. 47 a. Bride, I id. 170.] 
 
 312 
 
CHAP. XIV.] AND SALES THEREUNDER. 27O* 
 
 7. The doctrine of the common law that the landlord could 
 seize, in satisfaction of the rent, any goods found on the pre- 
 mises, unless they fell within the exceptions named, worked 
 much hardship on lodgers, whose goods, although they had 
 paid their rent to the tenant, might still be seized by the 
 superior landlord. On this account, in 1871, a statute (r) was 
 passed, by which it was enacted (s. i) that "if any superior 
 landlord shall levy, or authorize to be levied, a distress on 
 any furniture, goods or chattels of any lodger, for arrears of 
 rent due to such superior landlord by his immediate tenant, 
 such lodger may serve such superior landlord, or the bailiff 
 or other person employed by him to levy such distress, with 
 a declaration in writing made by such lodger, setting forth 
 that such immediate tenant has no right of property or bene- 
 ficial interest in the furniture, goods or chattels so distrained 
 or threatened to be distrained upon, and that such furniture, 
 goods or chattels are the property, or in the lawful posses- 
 sion, of such lodger, and also setting forth whether any, and 
 what, rent is due, [270] and for what period, from such lodger 
 to his immediate landlord ; and such lodger may pay to the 
 superior landlord, or to the bailiff or other person employed 
 by him as aforesaid, the rent, if any, so due as last aforesaid, 
 or so much thereof as shall be sufficient to discharge the claim 
 of such superior landlord. And to such declaration shall be 
 annexed a correct inventory, subscribed by the lodger, of the 
 furniture, goods and chattels referred to in the declaration ; 
 and if any lodger shall make or subscribe such declaration 
 and inventory knowing the same or either of them to be 
 untrue in any material particular, he shall be deemed guilty 
 of a misdemeanour." 
 
 By sect. 2, " if any superior landlord, or any bailiff or other 
 person employed by him, shall, after being served with the 
 before-mentioned declaration and inventory, and after the 
 
 (r) 34 & 35 Vict. c. 79. [The goods v. Marquand, 2 Hill (N.Y.) 447; un- 
 
 of the tenant's lodger are pretty gener- less the goods are in the personal use 
 
 ally exempted from being taken on of the tenant, as in Matthews v. Stone, 
 
 distress by the superior landlord : Riddle I Hill (N.Y.) 565 ; or of his other 
 
 V. Welden, 5 M^harton (Penn.) 9; Kit- boarders or lodgers, as in Leitch v. 
 
 tridge V. Ribas, 18 La. Ann. 718; Simon Owings, 34 Md. 262.] 
 V. Goldenberg, 15 La. Ann. 229; Coles 
 
 313 
 
» 
 
 *2Jl DISTRAINTS FOR RENT [PART I. 
 
 lodger shall have paid or tendered to such superior landlord, 
 bailiff or other person, the rent, if any, which by the last pre- 
 ceding section such lodger is authorized to pay, shall levy or 
 proceed with a distress on the furniture, goods or chattels of 
 the lodger, such superior landlord, bailiff or other person 
 shall be deemed guilty of an illegal distress, and the lodger 
 may apply to a justice of the peace for an order for the 
 restoration to him of such goods ; and such appUcation shall 
 be heard before a stipendiary magistrate, or before two jus- 
 tices in places where there is no stipendiary magistrate, and 
 such magistrate or justices shall inquire into the truth of 
 such declaration and inventory, and shall make such order 
 for the recovery of the goods or otherwise as to him or them 
 may seem just, and the superior landlord shall also be liable 
 to an action at law at the suit of the lodger, in which action 
 the truth of the declaration and inventory may likewise be 
 inquired into." 
 
 It is not as yet possible to define a lodger under this [271] 
 act. In a case where a person held substantially the whole 
 house, and the immediate tenant only retained possession of 
 a room in the basement and two or three empty attics and 
 a stable, it was held that the former was a lodger within the 
 meaning of the act, although the agreement under which he 
 held might make him an undertenant, Lindley, J., saying : 
 "There certainly is considerable difficulty in determining 
 who is a lodger within the meaning of this act. It is said 
 that this plaintiff was an undertenant, and not a mere lodger. 
 Looking at the main object of the act, I am not satisfied that 
 an undertenant who resides with his family and servants in 
 certain rooms of a house, other rooms of which are at the 
 same time occupied by the tenant and his family, cannot be 
 a lodger ; though probably the act would not apply to an 
 undertenant who has the exclusive possession and occupation 
 of the entire house {s)." 
 
 8. There is another class of exemptions, namely, of things 
 which are only conditionally, not absolutely, privileged, and 
 may only be taken when there is no other sufficient distress. 
 These are : — 
 
 (J) Phillips V. Henson, 3 C.P.D. 26, 32. 
 
CHAP. XIV.] AND SALES THEREUNDER. 2/2* 
 
 1. Beasts of the plough and sheep (t). But an action will 
 not lie for taking them, if there is no other sufficient distress 
 on the premises save growing crops {u). Colts, steers and 
 heifers are not included in this class. The exemption ex- 
 tends to the sheep of a suhtenant {v). 
 
 2. Implements of trade (w), which are absolutely privileged, 
 [272] while in actual use (x), but otherwise only if there is 
 no other sufficient distress on the premises (y). 
 
 9. There are also further exceptions added by statute, which 
 it is only necessary here to name. These are : the goods of 
 an ambassador (.3-) ; gas meters, being the property of a gas 
 company incorporated by act of parliament {a) ; railway 
 rolling stock, when it is not the actual property of the 
 tenant (b). 
 
 Corn and growing crops were originally within the excep- 
 tions relating to things annexed to the freehold and things 
 that could not be restored in the same plight, and were there- 
 fore exempt from distress (c) ; but now by statute {d) the 
 landlord may seize under a distress sheaves or cocks of corn 
 or corn loose or in the straw (which includes corn whether 
 thrashed or not) {e) or hay in any barn or granary or on any 
 hovel, stack or rick, or otherwise on any part of the land or 
 ground charged with the rent, and lock up or detain the same 
 in the place where it shall be found, until it shall be replevied 
 or sold' in default of replevin (/) ; but it may not be removed 
 from such place to the damage of the owner ; and by another 
 statute {g) a landlord may also seize as a distress for rent all 
 
 {i) 51 Hen. HI. st. 4. (2) 7 Anne, c. 12, s. 3. 
 
 (ii) Piggott V. Birtles, i M. & W. {a) 10 Vict. c. 15, a. 14. 
 
 441. For the landlord has a right to {li) 35 & 36 Vict. u. 50, 3. 3. 
 
 resort to subjects of distress which are (c) Co. Lit. 47 a. 
 
 immediately available to raise the arrears (</) 2 W. & M. sess. i, c. 5, a. 3. 
 
 of rent by sale, and is not bound to take (f) Anon. Lutw. 214. 
 
 those which cannot be productive till a (/) As to replevin and sale, see 
 
 future period : iHd. 45 1 . infra, 278. 
 
 (v) Keen v. Priest, 4 H. & N. 236; {g) 11 Geo. IL c. 19, ss. 8, 9. [Un- 
 
 28 L.J. Exch. 157; 32 L.T. 131 ; 7 W. der the New Jersey statutes, the land- 
 
 R. 376. lord's right to distrain the tenant's grow- 
 
 (w) Co. Lit. 47 a. ing crop will not be affected by the ten- 
 
 (j:) Ante, p. 265. ant's sale of the crop : Bird v. Anderson, 
 
 {y) Nargett v. Nias, i E. & E. 439; 41 N.J. Law, 392.] 
 28 L.J.Q.B. 143; 5 Jur. N.S. 198. 
 
*273-274 DISTRAINTS FOR RENT [pART I. 
 
 sorts of corn, grass, hops, roots, fruits, pulse, or other product 
 whatsoever, which shall be growing upon any part of the 
 [273] premises, and the same may cut, gather, make, cure, 
 carry and lay up, when ripe, in the barns or other proper 
 place on the premises, or, if there be none such, then in any 
 other barn or proper place that the landlord may provide, as 
 near as may be to the premises, and in convenient time ap- 
 praise, sell or otherwise dispose of the same towards the 
 satisfaction of the rent and charges, the appraisement to be 
 taken when the same is cut, gathered, cured and made, and 
 not before ; provided that notice {h) of the place where the 
 distress is lodged shall be given to the tenant, or left at his 
 last place of abode, within one week after it has been so 
 lodged, and if the tenant shall, pay or tender the arrears of 
 rent and costs of the distress, before the corn &c. be cut, 
 the distress shall cease and the corn &c. be delivered up to 
 him. The word product only applies to such products as 
 are capable of becoming ripe and being cut, gathered and 
 laid up, when ripe, and therefore does not include trees grow- 
 ing in the grounds of a nurseryman, which, although remova- 
 ble by the tenant, are not distrainable (?'). 
 
 Amount. — The bailiff must be careful to distrain for the 
 amount stated in his warrant, and neither more nor less. For 
 if he distrain for more, the distress may be excessive, in 
 which case the landlord will be liable to pay damages to the 
 tenant, and the bailiff to pay damages to the landlord, or the 
 tenant, or both. On the other hand, if he distrain for less, 
 the landlord may suffer damage, for which the bailiff will be 
 liable ; for it is not permitted to have several distresses for 
 the same rent, when enough might have been had at the 
 first, if the distrainer had thought proper {j) ; [274] and if 
 
 (JC) See Form 4, /orf. 8 Paige (N.Y.) 212. A landlord dis- 
 {i) Clark V. Gaskarth, 8 Taunt. 431 ; training for more rent than is due is 
 2 Moore, 491; Clark v. Calvert, 3 liable in Pennsylvania to an action with- 
 Moore, 96. out proof of malice on his part : McEl- 
 (y) Hutchins v. Chambers, i Burr, roy v. Dice, 17 Penn. St. 163; but he is 
 579- [The distress can be only for the sometimes merely restricted to the re- 
 rent in arrear; it may not include in- covery of the actual amount due : Jean 
 terest thereon: Lansing k. Rattoone, 6 v. Spurrier, 35 Md. iio; Hamilton v. 
 Johns. (N.Y.) 43; Vechte v. Brownell, Windolf, 36 Md. 301. See Sturgis v. 
 
 316 
 
CHAP. XIV.] AND SALES THEREUNDER. 2/5* 
 
 the entire sum be split, and part distrained at one time, and 
 part at another, the second seizure will be illegal {k) ; so that, 
 if too little be distrained for, the landlord will lose this parti- 
 cular remedy for the balance. It must not, however, be sup- 
 posed that the amount must in value be neither more nor 
 less than the rent distrained for, provided the first seizure be 
 made for the whole amount that is due : if it turn out after- 
 wards that the bailiff has made a mistake as to the value of 
 the goods, there is no reason why he should not complete the 
 distress by a further seizure (/). 
 
 But although he is not bound to calculate very nicely the 
 value of the property seized, he must take care that some 
 proportion is kept between that and the sum for which he is 
 entitled to take it {m). It does not, however, matter, if the 
 distress be for more rent than is due, if the value of the goods 
 seized does not exceed in amount the rent which is due («). 
 The utmost ainount of rent that can be distrained for is six 
 years' {o) ; and if the tenant be bankrupt, then for one year 
 prior to the adjudication (/) ; and in all cases the right to 
 the rent must have accrued within twelve years (g). 
 
 Tender. — If, after the warrant is given to the bailiff, but 
 before he has seized the goods under it, a tender of the full 
 amount of the rent really due be made to the landlord or his 
 agent, it will be illegal to execute the distress, and all parties 
 to [275] doing so will be liable in an action (r). If, after the 
 seizure is made, and before the goods are impounded, the 
 
 Frost, 56 Ga. 188; Harms v. Salein, 79 Wright v. Williams, 5 Cow. (N.Y.) 501 ; 
 
 Ills. 460.] Blake v. Deliesseline, 4 McCord (So. 
 
 (/J) Bull. III. Car.) 496. But interest is not to be in- 
 
 (/) Hutchinss'. Chambers, I Burr. 5 79. eluded in the amount distrained for: 
 
 (in) Willoughby v. Backhouse, 2 B. Dennison v. Lee, 6 Gill & J. (Md.) 383; 
 
 & C. 821; 4 D. & R. 539; Bull. 201 ; Lansing v. Rattoone, 6 Johns. (N.Y.) 
 
 Smith V. Ashforth, 29 L.J. Ex. 259. 43; Vechte v. Brownell, 8 Paige (N.Y.) 
 
 («) Tancred v. Leyland, 16 Q.B. 212 ; Bantleon v. Smith, 2 Binney 
 
 665,677; 20L.J.Q.B. 316; I5jur.394. (Penn.) 146, 153.] 
 
 (a) 3 & 4 Wm. IV. c. 42, s. 42. [This (/) Bankruptcy Act, 1869, s. 34. 
 
 is a statutory limitation. In the absence (?) Real Property Limitation Act, 
 
 of statute, rent for a longer period may 1874 (37 & 38 Vict. c. 57). 
 
 be distrained for, as in Longwell v. (r) Bennett v. Bayes, 5 H. & N. 
 
 Ridinger, i Gill (Md.) 57; Sherwood 391 ; 29 L.J. Ex. 224; 2 L.T.N.S. 156; 
 
 V. Phillips, 13 Wend. (N.Y.) 479 ; 8 W.R. 320. [Fox v. McKee, 31 La. 
 
 Vechte v. Brownell, 8 Paige (N.Y.) 212; Ann. 67.] 
 
*276 DISTRAINTS FOR RENT [PART 1. 
 
 rent and expenses attending the seizure are tendered, the 
 distress must not be proceeded with (s). The tender need 
 not necessarily be made to the bailiff, but it may be made to 
 the landlord (t) or to his agent (u). The bailiff, however, has 
 ex officio authority to receive the rent ; therefore, if he refuses 
 the tender, although on the ground that the landlord's solici- 
 tor has forbidden him to accept the rent, and proceeds with 
 the distress notwithstanding, both he and the landlord will 
 be liable (■y). But the man in possession, not being the bai- 
 liff, has no such authority (w) ; nor has a servant {x). A ten- 
 der after impounding is altogether too late {y). If, however, 
 tender of rent and expenses be made within the five days 
 after the distress is taken, and before the sale, though the 
 goods be lawfully impounded, a sale will be unlawful (z). 
 The tender must be for the full amount due, but need not 
 include expenses of the distress, if made before the seizure 
 is effected (a). It must be [276] unconditional (b) ; but a 
 tender of the full amount under protest is good {c). 
 
 Seizure. — -The bailiff, having entered upon the premises, 
 and no tender having been made, should select such goods 
 as are not privileged, and of a sufficient amount for the dis- 
 tress and expenses ; the test of value being the amount they 
 would realize at a broker's sale {d). The usual mode of 
 making the distress is for the bailiff, after demanding the 
 rent and producing his authority, to take hold of some article 
 of furniture or other personal chattel, and to seize it in the 
 
 (j) Evans v. Elliott, 9 A. & E. 342; (to) Boulton v. Reynolds, 2 E. & E. 
 
 I P. & D. 256; I W.W. & H. 144; 369; 29 L.J.Q.B. n; 6 Jur. N.S. 46. 
 
 Ladd r', Thomas, 1 2 A. & E. 1 1 7 ; 4 P. (jt:) Pilkington v. Hastings, Cro. 
 
 iT: D. 9; 4 Jur. 798; and see The Six Eliz. 813; The Six Carpenters' Case, i 
 
 Carpenters' Case, i Sm. L.C. 137. Sm. L.C. 137. 
 
 [Hunter v. LeConte, 6 Cow. (N.Y.) (j) Ladd v. Thomas, uH supra. 
 
 72S; Williams v. Howard, 3 Munf. (:) Johnson v. Upham, 2 E. & E. 
 
 (Va.) 277. The tender may be made 250; 29 L.J.Q.B. 252; 5 Jur. N.S. 68l. 
 
 by a purchaser of the leasehold interest : {ci) Bennett v. Bayes, 5 H. & N. 
 
 Lyon V. Ilouk, 9 Watts (Penn.) 193.] 39 1 ; 29 L.J. Ex. 224; 2 L.T.N.S. 156; 
 
 (/) Smith V. Goodwin, 4 B. & Ad. 8 W.R. 320. 
 
 413; I N. & M. 371. (Jj) Marquis of Hastings v. Thorley, 
 
 (/z) Bennett w. Bayes, w^z i«/?-a. 8 C. & P. 573. As to growing crops, 
 
 (v) Hatch V. Hale, 15 Q.B. 10; 19 see supra, p. 14. 
 
 L.J.Q.B. 289; 14 Jur. 459; cf. Gilb. 82, {c) Manning i<. Lunn, 2 C. & K. 14. 
 
 83. id) Wells V. Moody, 7 C. & P. 59. 
 
 318 
 
CHAP. XIV.] AND SALES THEREUNDER. 2/7* 
 
 name of all the other goods there, or of such part only as he 
 intends to seize (e) ; and that will be a seizure of all (/). No 
 form of words is necessary, and there need not be an actual 
 seizure in fact, if the circumstances show a constructive 
 seizure ; as, where the landlord, seeing a piano being re- 
 moved, refused to allow it to be taken away until his rent 
 was paid (g). In like manner, where the landlord's agent 
 walked round a wharf and left a notice in writing that he 
 had distrained the goods lying there for rent, and that they 
 would be appraised and sold, if not replevied, and then went 
 away, leaving no one in possession, it was held that an ac- 
 tual seizure had been made (k). So, where a broker went 
 and pressed for rent and expenses of the levy, but touched 
 [277] nothing and did not make an. inventory, and the tenant 
 paid under protest and brought an action against the land- 
 lord for excessive distress, it was held that the landlord could 
 not say that there had been no distress (?'). 
 
 Impounding. — Formerly, by the common law, it was the 
 duty of the distrainer to impound the goods off the premises ; 
 but now, by statute, he may impound them either off or on 
 the premises, in such place, or on such part of the premises, 
 as shall be convenient (_/'), and may appraise, sell and dis- 
 pose of them upon the premises. Where the tenant has 
 made a tender after the seizure, the question whether the 
 goods have been impounded or not becomes very important 
 and is often one of some nicety. It is sufficient here to say 
 that, if the goods are not moved off the premises, then, in 
 order that there may be a legal impounding, they should be 
 
 (.?) £.^., he may say : "By virtue of (i) Hutchins v. Scott, 2 M. & W. 
 
 an authority given, me by A. B. for that 809; M. & H. 194. 
 
 purpose, I seize this table or chair (or (J) 11 Geo. II. c. 19, s. 10. [So in 
 
 vi-hatever it may be) in the name of all Pennsylvania : Woglam i). Cowperth- 
 
 the other goods on these premises, as a vcaite, 2 Dallas, 68. The distress will 
 
 distress for the sum of , rent due to not be waived as against the tenant, but 
 
 A. B. at last": Bull. 131. will be waived as against a iond fide 
 
 (/) Dodd V. Morgan, 6 Mod. 215. purchaser from the tenant, by the land- 
 
 (g) Cramerz;. Mott, L.R. 6Q.B. 257; lord's leaving the property in the pos- 
 
 39 L.J.Q.B. 172 ; Wood v. Nunn, 5 session and apparent control of the 
 
 Bing. 10; 2 M. & P. 27. tenant for an unreasonable time, though 
 
 (Ji) Swann v. Earl of Falmouth, 8 under the tenant's consent and promise 
 
 B. & C. 456. to pay the rent in the meantime : La- 
 
 motte V. Wisner, 5t Md. 543.] 
 
*278 DISTRAINTS FOR RENT [PART I. 
 
 placed together in one room, or more, if necessary i^), unless 
 the tenant consents to a different course ; and of this a very 
 slight indication will suffice (/). Corn, loose or in the straw, 
 hay &c. must not be removed from the premises, but must 
 be impounded where found (;«) ; and growing corn, crops &c. 
 must, after they are cut or gathered, be impounded in a suit- 
 able place on the premises, and may only be removed, if there 
 be none such («). An open field is a sufficient pound for 
 cattle (p). 
 
 Inventory and Notice. — After the seizure the bailiff should 
 at once make an inventory of so much of the goods as is 
 deemed sufficient to [278] satisfy the rent due and expenses 
 of the distress (/), and give notice in writing {q) to the ten- 
 ant of the distress having been taken, the amount due, the 
 particular articles seized, the place, if any, to which they are 
 removed (r) and the time after which the goods will be ap- 
 praised and sold, unless the rent and charges be paid or the 
 goods replevied (s) ; this is usually written at the foot of the 
 inventory {t). A copy of the inventory and notice must be 
 left at the chief mansion-house or other most notorious place 
 on the premises, or, if possible, served personally on the ten- 
 ant, in which case leaving it at the house may be dispensed 
 with («). It is advisable that a witness be present in all 
 cases, to prove the regularity of the proceedings iv). 
 
 "When Sale may be Made. — The landlord may not sell the 
 goods distrained until after the expiration of five days from 
 the date of seizure iw) ; and until the goods are actually sold 
 
 (Ji) Woods V. Durrant, i6 M. & W. 34. The notice is an essential prelim- 
 
 149- inary to the sale : Curtis v. Bradley, 75 
 
 (J) Tennant v. Field, 27 L.J.Q.B. 33. Ills. 180; Kerr v. Sharp, 14 Serg. & R. 
 
 (m) 2 W. & M. I, sess. I, c. 5. Cf. (Penn.) 399.] 
 supra, p. 272. (r) „ Geo. II. c. 19, s. 9. 
 
 («) II Geo. II. c. 19; and see {s) Kerby t-. Harding, 6 Exch. 234; 
 
 jM/ra, p. 272. 20 L.J. Ex. 163; isJur. 953. 
 
 ip) Castleman v. Hicks, Car. & M. {f) See form, post. 
 
 266. See also Thomas v. Harries, I («) 2 W. & M. i, sess. i, c. 5, ». 2 ; 
 
 Man. & G. 695. Walter v. Ruttibal, I Ld. Raym. 55; i 
 
 (/) See Eprms 4, 5, post, in Part Salk. 247. 
 II., under Distress. {v) Woodf. 424. 
 
 {q) Wilson v. Nightingale, 8 Q.B. (to) 2 W. & M. sess. I, c. 5, s. 2. 
 
 1034; 15 L.J.Q.B. 309; 10 Jur. 917. [Buttsz;. Edwards, 2 Denio (N.Y.) 164; 
 
 [McKinney v. Reader, 6 Watts (Penn.) Brisben v, Wilson, 60 Penn. St. 452.] 
 
 320 
 
CHAP. XIV.J AND SALES THEREUNDER. 2/9* 
 
 the tenant may replevy them (.ir), or tender the rent and ex- 
 penses ; for, as has been already pointed out, the landlord 
 may not sell after the full [279] rent and expenses have been 
 tendered {y), after, in fact, the object of the distress has been 
 attained. The days are five clear days, reckoned exclusively 
 of the day of distress and that of the sale {z) ; at the expira- 
 tion of that period the landlord must proceed to appraise, 
 which he may do either on or off the premises («), and sell. 
 Immediately after the expiration of the five days limited by 
 statute the goods ought in strictness to be either removed 
 or sold, though a reasonable time will be allowed the land- 
 lord for the purpose of appraisement and sale {b) ; but if a 
 forced removal or sale may depreciate the value of the effects, 
 or the tenant wishes for delay to enable him to raise tlie rent, 
 it is a common thing for him to make an arrangement with 
 the landlord for an extension of the time, and to consent to 
 the landlord's remaining over the five days. This consent 
 should always be in writing (c). 
 
 Before sale the goods must be appraised by two persons {d), 
 not necessarily professional appraisers, but reasonably com- 
 petent (e) ; and they need not be sworn (/) ; and the bailiff 
 distraining must not be one of them (g). But if the tenant, 
 to save expense, requests that appraisers may not be called 
 
 (jtr) Jacob z*. King, 5 Taunt. 451 ; i (2) Robinson v. Waddington, 13 
 
 Marsh. 535. Replevin, according to Q.B. 753; 28L.J.Q.B. 250. [McKinney 
 
 Woodfall, is a remedy for the owner of v. Reader, 6 Watts (Penn.) 34; Alger 
 
 goods or cattle which have been wrong- v. Curry, 40 Vt. 437.] 
 fully taken under a distress for rent, (a) 11 Geo. II. c. 19, s. 10. 
 
 whereby he obtains them back in a sum- {!>) Pitt v. Shew, 4 B. & Aid. 208; 
 
 mary manner, through, the Registrar of Winterbourne v. Morgan, 11 East, 395; 
 
 the County Court of the district within 2 Camp. 117. 
 which the goods or cattle were taken, {c) See form, post, Part II. 
 
 upon giving security to try the validity of (d) 2 W. & M. sess. i, 0. 5, s. 2. 
 
 the distress or taking, in an action for [Curtis v. Bradley, 75 Ills. 180; Kerr 
 
 replevin to be forthwith commenced by v. Sharp, 14 Serg. cS: R. (Penn.) 399.] 
 him against the distrainor and prose- {e) Allen v. Flicker, 10 A. & E. 
 
 cuted with effect, and without delay, 640; 4P. &D. 735; 3jur. 1029; Roden 
 
 either in the County Court or in the v. Eyton, 6 C.B. 427; 18 L.J.C.P. i; 
 
 High Court, and to return the goods or 12 Jur. 921. 
 cattle, if such return shall be awarded: (/) 35 & 36 Vict. c. 92, s. 13. 
 
 L. & T. 454. (£) Lyon v. Weldon, 2 Bing. 334; 
 
 (7) Johnson v. Upham, 28 L.J.Q.B. Andrews v. Russell, Bull. N.P. 81. 
 252; cf. supra, p. 273. 
 
 321 
 
*28o-28l DISTRAINTS FOR RENT [PART I. 
 
 in, and, in consequence, the distraining broker values the 
 goods, the tenant cannot afterwards treat this as an irregu- 
 larity {h). 
 
 [280] The appraisement is usually written under or upon 
 the inventory {i). 
 
 By the Stamp Act, 1870, appraisements and valuations are 
 liable to an ad valorem stamp (_/"). 
 
 Before any sale takes place, it is prudent to search at 
 the sheriff's or county court registrar's office, to see if the 
 goods have been replevied (k). If not, and if the rent and 
 expenses are not tendered (/), the sale may be proceeded 
 with. 
 
 How Sale to be Made. — The statute requires that the 
 goods should be sold at the best price that can be gotten 
 for them ; and, to insure this, they should be sold by public 
 auction ; and the landlord cannot buy the goods at the 
 appraised value (in) ; though it seems that it is often the 
 practice to allow the appraiser to do so («) ; but this, it is 
 thought, is a very improper, or, at the least, imprudent, 
 proceeding. 
 
 Surplus Proceeds. — The surplus, if any, is directed by the 
 statute to be left in the hands of the sheriff, under-sheriff or 
 constable, for the owner's use ; and this means the overplus 
 after payment of the rent and reasonable charges (p) ; and if 
 the goods have been removed from the premises, and suffi- 
 cient sold to satisfy the rent and expenses, the broker should 
 leave the surplus money with the sheriff, and return the resi- 
 due of the goods remaining unsold to the premises from 
 which they were taken (/). 
 
 It seems that there is no rule as to the order in which 
 [281] the goods are to be sold, as, that beasts of the plough 
 should not be sold before other goods {q). 
 
 Costs of Distress. — The expenses of a distress, when the 
 
 (Ji) Bishop 7'. Bryant, 6 C. & P. 484. (m) King v. England, 33 L.J.Q.B. 
 
 {€) See form, post. Part 11. 145. 
 
 (i) 33 & 34 Vict. c. 97; cf. ante, (n) Woodf. 437. 
 
 Ch. III. (0) Lyonz-.Tomkies, iM.&W. 603. 
 
 (i) Woodf. 437. (/) Evans v. Wright, 2 H, & N. 527; 
 
 (/) See supra, p. 278. 27 L.J. Ex. 56. 
 
 {//) Jenner v. YoUand, 6 Price, 3. 
 322 
 
CHAP. XIV.] AND SALES THEREUNDER. 282* 
 
 rent distrained for does not exceed ;£20, are limited by 
 statute if) to the following charges : — 
 
 J. d. 
 Levying distress ... .... .30 
 
 Man in possession, per day ...... ..'26 
 
 Appraisement, whether by one broker or more, td. in the pound on the 
 
 value of the goods. 
 Stamp, the lawful amount thereof. 
 
 All expenses of advertisements, if any such ... . 10 o 
 
 Catalogues, sale and commission, and delivery of goods, \s. in the pound 
 
 on the net produce of the sale. 
 
 If any charge in excess of these is made, the person dis- 
 training is liable to a penalty of treble the amount of the 
 overcharge. 
 
 The statute does not apply to the case of a distress taken 
 for more than .?£^20, though made upon goods which are ap- 
 praised at, and sold for, less than ^20 (j). Every broker or 
 other person distraining is required to give a copy, signed 
 by him, of his charges, and of all the costs and charges 
 of the distress, to the person or persons on whose goods 
 the distress was levied, although the amount of rent de- 
 manded exceeded the sum of ^£20 {t). This rule does not 
 apply where the goods have not been sold {u) ; nor is 
 the landlord liable for the broker's neglecting to give the 
 copy of his charges, unless he personally interferes in the 
 distress {v). 
 
 If the rent demanded exceeds ;£20, there is no statutory 
 limit, the charges must only be fair and reasonable {w). 
 [282] The general practice appears to be to charge is. in the 
 pound for the levy and 2s. 6d. per dian for the man in pos- 
 session, if the tenant keeps him, and 3^. 6d. per diem, if he 
 keeps himself, besides usual charges for appraisement, adver- 
 tisements, catalogues &c. ix). 
 
 (r) 57 Geo. III. v;. 93. (a) Hills v. Street, 5 Bing. 37. 
 
 (j) Child V. Chamberlain, 5 B. & (i*) Hart v. Leach, I M. & W. 560. 
 
 Ad. 1049. {w) Child z/. Chamberlain, K^z .fw^ra. 
 
 (J) S. 6. (.x) Woodf. 440. 
 
 323 
 
*282 
 
 SALES UNDER THE 
 
 [part I. 
 
 IV. Sales under the Pazvnbrokers Act, 1872. 
 
 By the Pawnbrokers Act, 1872 («), save so far as, in the 
 case of a pledge on which more than 40^-. has been advanced, 
 the terms of a special contract may otherwise provide (b), the 
 sale of a pledge pawned for more than \Qs. (c) and not more 
 than £10 {d) must be by way of public auction, and not 
 otherwise {e) ; and the following regulations are to be ob- 
 served by the auctioneer with reference to the sale (/) : — 
 
 1. The auctioneer must cause all pledges to be exposed to 
 public view. 
 
 2. He must publish catalogues of the pledges, stating — 
 
 a. the pawnbroker's name and place of business ; 
 
 b. the month in which each pledge was pawned; and 
 
 c. the number of each pledge, as entered, at the time of 
 
 pawning, in the pledge book. 
 
 3. The pledges of each pawnbroker in the catalogue must 
 be separate from the pledges of every other pawnbroker. 
 
 («) 35 '-^ 36 Vict. c. 93. 
 
 {f) See ss. 10, 24. [The sale of a 
 naked pledge can be made only by 
 public auction, with proper notice to 
 the pledgor of the time and place of 
 sale : Washbiirn -'. Pond, 2 Allen 
 (Mass.) 474; Wheeler v. Nevvbould, l5 
 N.Y. 392. Such a sale may be ordered 
 by a court of equity, under proper cir- 
 cumstances ; Donohoe v. Gamble, 38 
 Calif. 340. And a purchase by the 
 pledgee at such a sale, without authority 
 from the pledgor, is voidable at the 
 option of the pledgor : Killian v. Hoff- 
 man, 6 Ills. App. 200; Middlesex Bank 
 V. Blinot, 4 Met. (Mass.) 325; but it is 
 only the pledgor who may avoid such 
 sale, the pledgee cannot disaffirm his 
 own purchase : Faulkner v. Hill, 104 
 Mass. iSS. Bondi or stocks purchased 
 and held by a broker on marginal se- 
 curity come, in the absence of a special 
 agreement bct\\'een the parties, under the 
 same rule as any other pledge : Gay v. 
 Moss, 34 Calif. 125; Fletcher v. Dickin- 
 son, 7 Allen ( ilass.) 23 ; Gruman v. Smith, 
 81 N.Y. 25; Cameron v. Durkheim, 55 
 
 324 
 
 N.Y. 425; Read v. Lambert, 10 Abbott 
 Pr., N.S. (N.Y.) 42S; Morris Canal Co. 
 V. Lewis, 12 N.J. Eq. 323; Conyng- 
 ham's Appeal, 57 Penn. St. 474; Diller 
 V. Brubaker, 52 Penn. St. 498. See 
 Thompson v. Toland, 48 Calif. 99 ; 
 Corbett v. Underwood, 83 Ills. 324; 
 Maryland Ins. Co. v. Dalrymple, 25 
 Aid. 242; Baltimore Ins. Co. v. Dal- 
 rymple, id. 269; Wood V. Hayes, 15 
 Gray (Mass.) 375; Baker v. Drake, 66 
 N.Y. 518; s.c, 53 N.Y. 211; Stentonz'. 
 Jerome, 54 N.Y. 480; Esser v. Linder- 
 man, 71 Penn. St. 76; Wynkoop v. 
 Seal, 64 Penn. St. 361.] 
 
 (f) Pledges for \os. or under, not 
 redeemed in time, are forfeited: s. 17. 
 Pledges within the act are redeemable 
 for a year, exclusive of the day of pawn- 
 ing, with seven days of grace: s. 16; 
 and if for above lo^., they continue re- 
 deemable until sale: s. 18. 
 
 (aO The act does not apply to loans 
 of above ;f lO: s. 10. 
 
 (0 S. 19. 
 
 {/) Ibid., and 5th schedule. 
 
CHAP. XIV.] PAWNBROKERS ACT, 1 8/2. 283-284* 
 
 [283] 4. The auctioneer must insert in some public news- 
 paper an advertisement, giving notice of the sale, and 
 stating — 
 
 a. the pawnbroker's name and place of business ; and 
 
 b. the months in which the pledges were pawned. 
 
 5. The advertisement must be inserted on two several days 
 in the same newspaper, and the second advertisement must 
 be inserted at least three clear days before the first day of 
 sale. 
 
 6. Pictures, prints, books, bronzes, statues, busts, carvings 
 in ivory and marble, cameos, intaglios, musical, mathematical 
 and philosophical instruments and china must be sold by 
 themselves, and without any other goods being sold at the 
 same sale, four times only in every year, viz., on the first 
 
 • Monday in the months of January, April, July and October, 
 and on the following day and days, if the sale exceeds one 
 day ; and at no other time. 
 
 7. Where a pawnbroker bids at a sale {g), the auctioneer 
 may not take the bidding in any other form than that in 
 which he takes the biddings of other persons at the same 
 sale ; and the auctioneer, on knocking down an article to a 
 pawnbroker, must forthwith audibly declare the name of the 
 pawnbroker as purchaser. 
 
 8. The auctioneer must within fourteen days after the sale 
 deliver to the pawnbroker a copy of the catalogue, or of so 
 much of it as relates to the particular pawnbroker's pledges, 
 filled up with the amounts for which the several pledges, or 
 those of the particular pawnbroker, were sold, and authenti- 
 cated by the signature of the auctioneer. 
 
 If an auctioneer does anything in contravention of those 
 [284] provisions of the act which relate to auctioneers, or 
 fails to do anything which the act requires him to do, he ren- 
 ders himself liable to a penalty not exceeding £^\o {h). 
 
 (g) " A pawnbroker may bid for and he may not, under any pretence, pur- 
 purchase, at a sale by auction made, or chase, except at pubUc auction, any 
 purporting to be made, under this act, a pledge while in pawn with him : ». 32. 
 pledge pawned with him: " a. 19; but {ft) Ss, 20, 45. 
 
'^28S SALES UNDER THE [PART I. 
 
 V. Sales tinder the Iniikeepers Act, 1878. 
 
 The Innkeeper's Right to Sell. — An innkeeper (a) may sell 
 goods (p) left with him, or upon his premises, by public auc- 
 tion, to satisfy a debt for which he has a lien upon the goods, 
 due to him from the person leaving the goods, for board or 
 lodging, or for the keep and expenses of any horse or other 
 animal left with him or standing at livery in a stable or field 
 occupied by him (c). 
 
 The sale may not be made until after the goods have been 
 in charge of the innkeeper, or upon his premises, for the 
 space of six weeks {d). It must be advertised, at least a 
 month before it is held, in a London newspaper, and in a 
 country newspaper circulating in the district where the 
 goods, or some of them, were left ; and the advertisement 
 must shortly describe the goods to be sold, and give the 
 name of the owner or person who left them, if known (e). 
 
 VI. Sales tmdei- the Stmimary Jurisdiction Act, 1879. 
 
 The statute 42 & 43 Vict. c. 49 {a), enjoins the observance 
 of the following regulations in the execution of warrants of 
 distress issued by courts of summary jurisdiction : 
 
 [285] I. A warrant must be executed by or under the 
 direction of a constable. 
 
 2. The distress must be sold by public auction, and five 
 clear days at least must intervene between the making of the 
 distress and the sale ; unless the person against whom the 
 distress' is levied consents otherwise in writing. 
 
 3. Subject as above, the distress must be sold within the 
 period fixed by the warrant, or, if the warrant fixes no 
 period, then within fourteen days from the date of the dis- 
 tress being made ; unless the sum for which the warrant was 
 
 (rt) I.e., the landlord, proprietor, {/) 41 & 42 Vict. c. 48, s. I. 
 
 keeper or manager of any hotel, inn or ((/) Ibid. 
 
 licensed public-house. (^) Ibid. 
 
 (J)) Chattels, carriages, horses, wares (a) The Summary Jurisdiction Act, 
 
 or merchandise. 1879, s. 43. 
 
 326 
 
CHAP. XIV.] SUMMARY JURISDICTION ACT, 1 8/9. 286* 
 
 issued and also the charges of taking and keeping the dis- 
 tress are sooner paid. 
 
 4. Subject to any directions to the contrary given by the 
 warrant, where the distress is levied on household goods, 
 the goods may not, except with the written co.isent of the 
 person against whom the distress is levied, be removed from 
 the house until the day of sale, but so much of the goods as, 
 in the opinion of the person executing the warrant, will be 
 sufficient to satisfy the distress must be impounded by affix- 
 ing to the different articles a conspicuous mark. A person 
 removing marked goods, or defacing or removing the mark, 
 is liable to a fine not exceeding jQ'^. 
 
 5. Where a person charged with the execution of a war- 
 rant wilfully retains from the produce of goods sold to satisfy 
 the distress, or otherwise exacts, any other costs and charges 
 than those to which he is for the time being entitled by 
 law {b), or makes any improper charge, he is liable to a fine 
 not exceeding £t). 
 
 6. A written account of the costs and charges incurred in 
 [286] respect of the execution of a warrant must be sent by 
 the constable charged with the execution of the warrant, as 
 soon as practicable, to the clerk of the court issuing the war- 
 rant ; and the person upon whose goods the distress was 
 levied has a right within a month after the levy to inspect 
 the account, without fee or reward, at any reasonable time to 
 be appointed by the court, and to take a copy of it. 
 
 7. A constable charged with the execution of a warrant 
 must cause the distress to be sold ; he may deduct out of 
 the amount realized all costs and charges actually incurred 
 in effecting the sale ; and he must render to the owner the 
 surplus, if any, after retaining the amount of the sum for 
 which the warrant was issued, and the proper costs and 
 charges of the execution of the warrant. 
 
 8. Where a person pays or tenders to the constable charged 
 with the execution of a warrant the sum mentioned in the 
 
 (3) None of the statutes relating to for executing a warrant of distress. The 
 the summary jurisdiction of magistrates amounts usually allowed are the same 
 appears to contain a scale bf charges as those authorized by 57 Geo. III. c. 93. 
 
 327 
 
*286 SUMMARY JURISDICTION ACT, 1 879. [PART I.] 
 
 warrant, or produces the receipt for it of the clerk of the 
 court, and also pays the amount of the costs and charges of 
 the distress up to the time of the payment or tender, the 
 constable may no longer execute the warrant. 
 
 328 
 
Part II. 
 
 FORMS AND PRECEDENTS. 
 
 I. AUTHORITY TO SELL. 
 
 Sir, — I hereby give you authority to sell for me by auction the several lots, 
 my property, herein mentioned [at the prices marked against them], and to re- 
 ceive the price [^of a deposit not exceeding per cent, on the price]. 
 
 Dated the , i8 . 
 
 J.T. 
 To Mr. G. H., Auctioneer. 
 
 Authority ,to sell property at 
 
 ,i8 . 
 To Messrs. R. M. & R., Piccadilly. 
 
 I hereby authorize you to sell the property described in the printed particulars, 
 of which copy annexed, at the undermentioned prices, either by public auction, or 
 subsequently by private contract, until I withdraw these instructions by writing. 
 
 Lot I 
 
 Lot 4 
 
 
 Lot 2 
 
 Lot 5 
 
 
 Lot 3 
 
 Lot 6 
 
 
 \_Signature^ 
 
 3- 
 
 To ALL TO WHOM these presents shall come, know ye that I, A. B., of R., in 
 the county of Y., gentleman, for sufficient considerations me hereunto moving, by 
 these presents Do make, constitute and appoint C. D., of S., in the county of Y., 
 auctioneer, my true and lawful attorney, for me and in my name, place and stead 
 to make sale and dispose of .All that messuage &c. {^Describe the premises shortly'], 
 with the appurtenances and the inheritance thereof in fee simple [either] by pub- 
 lic auction, [or by private contract, and] either together or in separate parcels or 
 lots, for such price or prices, or sum or sums of money, and by such descriptions 
 and under such conditions as to him shall seem advisable; and to sign and exe- 
 
330 FORMS AND PRECEDENTS. [PART II. 
 
 cute all proper contracts and agreements for the sale and conveyance thereof, and 
 do all such acts, matters and things as he shall consider necessary for completing 
 such sale and contracts ; and to receive a deposit not exceeding per cent, 
 
 on the purchase-money; I, the said A. B., hereby giving my said attorney the 
 whole of my power and authority in the premises, and hereby allowing, ratifying 
 and confirming, and promising and agreeing at all times to allow, ratify and con- 
 firm, all and whatsoever my said attorney shall lawfully do or cause to be done in 
 or concerning the premises. In witness whereof I have hereunto set my hand 
 and seal this day of. , i8 . 
 
 Signed, sealed, &c. A. B. (l. s.) 
 
 4. Letter to Vendor for Instructions for Conducting Sale. 
 
 IDale.'] 
 Sir, — As the premises in S. are to be submitted to auction on the 
 next, I enclose you the usual form of appointment of a person to make the re- 
 served bidding, and request that it may be signed by the parties and returned to 
 me previously to the day of sale. 
 
 I also enclose for your inspection and sanction a copy of the particulars and 
 conditions of sale. 
 
 Be so good as to favour me with the lowest price at which the property may be 
 sold, and such other directions or information as you may deem needful. 
 
 I am, Sir, 
 
 Your obedient servant, 
 To A. B., Esq. C. D. 
 
 II. ADVERTISEMENTS. 
 
 SALES BY AUCTION. 
 I. Freehold Under Order of the Court. 
 
 High Court of Justice. Chancery Division. Thompson v. Johnson, 1882. T. 
 No. . Freehold residence near . With possession. 
 
 Messrs. will, pursuant to an order in the above action, and «ith 
 
 the approbation of Mr. Justice , sell by auction at the Mart, Tokenhouse 
 
 Yard, E.C., on the of 18 , at o'clock 
 
 precisely, the excellent freehold nine-roomed house known as , and situ- 
 
 ate . There is a green-house, and also a garden stocked with productive 
 
 fruit trees. Particulars and conditions may be had at the Mart; of Messrs. , 
 
 solicitors, Mortlake ; and of the auctioneers at their offices. No. , Mincing- 
 
 lane, B.C. 
 
 2. Leaseholds, by Order of Mortgagees. 
 
 Woking, Surrey. Detached and semi-detached leasehold residences, for oc- 
 cupation or investment. By order of the mortgagees. 
 
 Mr. will sell by auction at , on , the of , 
 
 at o'clock, three substantially built detached and semi-detached resi- 
 
 dences, known as , in the Road, Sydenham, one of the most 
 
 beautiful and healthy suburbs of London, and close to the Crystal Palace, with 
 
PART II.] ADVERTISEMENTS. PARTICULARS. 33 1 
 
 excellent train service to the City and West-end of London; held for long terms 
 and low ground-rents, and together of the estimated, and in part actual, rental 
 value of £ per annum. In the meantime the auctioneer is prepared to 
 
 receive offers for their purchase by private contract. May be viewed by permis- 
 sion of the tenants, and particulars had, &c. 
 
 3. Furniture. 
 
 Mr. • vi'ill sell by auction at No. 10, Street, South Kensington, 
 
 on the of , 18 , at o'clock, 270 lots of furniture and 
 
 effects. By order of Mrs. , leaving for India. View, day preceding and 
 
 morning of sale. Catalogues at offices. No. , Broad-street, E.G. 
 
 4. Announcement of Withdrawal of Lots. 
 
 Bickerton Park Estate. Messrs. beg to announce that lots 7 and 8 of 
 
 this property, having been disposed of by private treaty, are withdrawn from their 
 sale by auction announced to take place on the instant. 
 
 III. PARTICULARS AND CATALOGUES. 
 
 A. INTRODUCTORY. 
 I. Business Premises. 
 
 By order of the mortgagees. City of London. The particulars and conditions 
 of sale of the capital business premises. No. , Street, , com- 
 
 prising five floors and a basement, and producing, inclusively of the estimated 
 value of two vacant rooms on the third floor, _;^ per anjiuni; held by original 
 
 lease direct from the estates, for the residue of a term of years from 
 
 [Christmas] ( years unexpired) at a ground-rent of £ per annum ; for 
 
 sale by auction, by Messrs. , at , on , at o'clock pre- 
 
 cisely. Particulars and conditions of sale may be obtained of Mr. , solic- 
 
 itor, ; and of the auctioneers at 
 
 2. Freehold Farm and Leasehold Cottages, in Two Lots, by Order of 
 
 the Court. 
 
 In the High Court of Justice, 
 Chancery Division (a). 
 
 Particulars and conditions of sale of certain freehold and leasehold estates 
 situate in the parish of , in the county of ; comprising a freehold 
 
 farm called the " Farm," containing about 180 acres of arable, pasture 
 
 and meadow land; and leasehold cottages in Lane, adjoining the 
 
 said farm, held for an unexpired term of about years, at a nominal rent; 
 
 which will be sold by auction by Mr. , -with the approbation of his lord- 
 
 ship, Mr. Justice , the judge to whom the action (J>) is attached, pursuant 
 
 {a) Add the short title of the action or {6) Or matter, 
 
 matter, and a reference to the record. {c) Or order. 
 
332 FORMS AND PRECEDENTS. [PART 11. 
 
 to the judgment (f) therein dated the day of , l8 , at the 
 
 Hotel, at , in the city of , on the day of , 18 , 
 
 at 5 for 6 o'clock in the evening, in two lots. 
 
 Particulars and conditions of sale may be had gratis of Mr. , of , 
 
 in the city of , solicitor; of Messrs. , of ; of the auc- 
 
 tioneer, at ; and at the place of sale. 
 
 3. Houses, by Direction of the Sheriff. 
 
 In the High Court of Justice, 
 Qiieen's Bench Division. 
 
 Between Robertson and Co., Plaintiffs, 
 and 
 Richard Jamieson, Defendant. 
 
 Particulars and conditions of sale of the chattel interest, if any, of the above- 
 named defendant in certain buildings situate and being Nos. and , 
 Road, South Kensington, which will be sold by auction by Messrs. , at 
 
 their auction offices, , High Plolborn, on Friday, the day of ^larch, 18 , 
 
 at 12 for I o'clock, by direction of the sheriff of Middlesex. The premises may 
 be viewed. Particulars and conditions of sale may be had on the premises; of 
 Messrs. and , soHcitors, , Old Broad Street, E.C.; and at the 
 
 auction and estate offices, , High Holborn. 
 
 4. Furniture. 
 
 No. Street, W. (instead of No. Place, Kensington, 
 
 a sale not being allowed at the mansion). A catalogue of the superior modem 
 furniture (chiefly supplied by Messrs. & Co.) and general effects, com- 
 
 prising the contents of 10 bedchambers, elegant ebonized and gilt drawing-room 
 suite, upholstered in rich blue satin, a fine concert grand pianoforte by CoUard 
 and CoUard, a full compass cottage pianoforte, ebony, amboyna and gilt cabinets, 
 ebony, amboyna, oak, walnut, mahogany and gilt centre, card, writing and occa- 
 sional tables, a gilt and enamelled boudoir suite, ottomans, jardinieres, pedestals, 
 set of handsome massive oak dining-tables, beautifully carved oak pedestal side- 
 board and bookcase, dinner waggon, couch, 2 easy and iS other chairs in morocco, 
 oak and other bookcases, the hall furniture, couches, chairs, fire screens, etageres, 
 girandoles, elegant crystal and gilt chandeliers, valuable mantel clocks and orna- 
 ments, bronzes, oil paintings, including an example by Landseer, engravings, 
 plated articles, 300 ozs. silver plate, 600 vols, of books, silk, damask, lace and 
 other curtains, chimney glasses, pile, Turkey and Brussels carpets, hearthrugs, 
 fenders, fire implements, china, glass, refrigerator, coppers, culinary requisites, 
 excellent landau and phaeton, by & Sons, a single brougham, and numer- 
 
 ous other effects, which will be sold by auction, by Messrs. (by order of 
 
 Mr. ), at the Sale Rooms, , Street, on Wednesday, May, 
 
 18 , and following day, at eleven for twelve o'clock each day. May be viewed 
 at the mansion. No. , Queen's Gate Place, privately, on Saturday, i May, by 
 cards, to be obtained of the auctioneers; and publicly, on Monday, 3 May, also 
 at , Street, on Tuesday, II May. Catalogues at the place of sale; of 
 
 Messrs. solicitors, No. , Street ; and of the auctioneers at 
 
PART II. J PARTICULARS AND CATALOGUES. 333 
 
 5. Horses. 
 
 To be sold by auction by Messrs. at , on the 
 
 of , 18 , beginning at 11 o'clocli precisely, in accordance with the con- 
 
 ditions exhibited on the premises. 
 
 6. Cows and Heifers. 
 
 Catalogue of a choice herd of newly calved and down calving Alderney and 
 
 Guernsey cows and heifers, selected with great care by Mr. of , 
 
 importer to Her Majesty the Queen, to be sold by auction by Mr. at the 
 
 Hotel, , on the of , 18 , at 12 o'clock 
 
 punctually. The herd will be on view on the morning of the sale. 
 
 7. Stocks and Shares. 
 
 Particulars and conditions of sale of various stocks and shares in established 
 undertakings, for sale by auction at , by Messrs. , of , 
 
 auctioneers, on , the of , 18 , at o'clock precisely. 
 
 Catalogues can be obtained of the auctioneers. 
 
 B. FORMAL (d). 
 
 I. Freehold House and Garden. 
 
 A messuage or tenement, with the garden, yard and outbuildings, situate in, and 
 Ijeing, No. 10, of Street, in the town of , in the county of , 
 
 and now in the occupation of , as tenant from year to year from [Michael- 
 
 mas], at a rent of £ per anmim. 
 
 2. Freehold or Copyhold House and Garden. 
 
 A dwelling-house, with coach-house, stable, outbuildings and garden, being 
 No. , in Street, , now in the occupation of \_Slate 
 
 period of tenancy, Sr'e., rent, also as to repairs, S^c] 
 
 The premises contain, including the site of the house and buildings, 
 of land, or thereabouts, and are bounded by , and are shown on the 
 
 accompanying plan. 
 
 The walls adjoining belong solely to these premises. The walls ad- 
 
 joining are to be deemed party walls. 
 
 The premises have a joint right, with the premises on the north side thereof, to 
 the use of the well' and pump shown on the plan, subject to bearing half the ex- 
 pense of keeping the same in repair; and the like as to the road or passage-way 
 leading to the stable and coach-house and back of the premises. 
 
 The annual land tax now payable is 
 
 The property is freehold. 
 
 {(t) Simple particulars are given, the laudatory terms generally suggesting them- 
 selves to auctioneers. 
 
334 
 
 FORMS AND PRECEDENTS. 
 
 [part II. 
 
 3. Freehold Farm and Leasehold Cottages, in Two Lots. 
 
 Lot I. A freehold farm, called " Farm," situate at , in the 
 
 parish of , in the county of ; consisting of 180 acres of arable, 
 
 meadow and pasture land in a high state of cultivation, and a large and commo- 
 dious farm-house, brick built and tiled, containing ten rooms, with large barn, 
 cart-sheds, stables and other outbuildings. This lot is in the occupation of Mr. 
 , under an agreement which expires at [Michaelmas] next, at the annual 
 rent of £ . The farm is subdivided as follows : — 
 
 No. on Plan 
 annexed. 
 
 Description. 
 
 State. 
 
 Quantity. 
 
 140 
 141 
 143 
 
 House and Homested . 
 Home Close .... 
 Long Ten Acres . . 
 
 Meadow 
 Arable . 
 
 2 
 
 4 
 10 
 
 (Set 
 
 out the rest of the parcels in like 
 manner.) 
 
 Total . 
 
 180 
 
 Lot I will be sold subject to a right of way reserved to the owner of the ad- 
 joining lands, and his servants and others, across the Long Ten Acres, by a foot- 
 path running from west to east. 
 
 I^ot 2. Four leasehold cottages, each containing four rooms and a closet, and 
 a small garden to each cottage, all situate in , adjoining the Long Ten 
 
 Acres. 
 
 Lot 2 is held under a lease for a term of eighty years from Ladyday, 18 , at a 
 ground rent of £ , and is now in the several occupations of , as 
 
 weekly tenants, at rentals amounting to £ per annum. 
 
 4. Freehold House, Bakehouse, and Mill. 
 
 The messuage, bakehouse, and premises situate at aforesaid, and now 
 
 in the occupation of J. C. ; and also the water grist-mills, mill-house and preinises 
 situate in the parish of C, in the county of S., with the appurtenances, as the 
 same are now in the occupation of the said J. C. \^State terms of tenancy, and 
 give inventory of going gear, (s'c., of mill ^ 
 
 5. A Freehold Estate. 
 
 The several freehold pieces or parcels of land or ground situate at S., in the 
 county of Y. [delineated in the plan in the margin hereof, or], containing by es- 
 timation acres, more or less, called or known by the several names of 
 , and now in the occupation of 
 
 The property is subject to a fee-farm rent, payable to the lord of the manor 
 of , {or to a mortgage in fee {or by demise for a term of years), by in- 
 
 denture dated , and made between and , for securing 
 
 the payment of a principal sum of £ and interest, which principal sum 
 
 of £ , with interest thereon from , is to be paid and discharged 
 
 by the purchaser]. 
 
 6. Moiety of Freehold. 
 
 All that undivided moiety or half part of , of and in all, &c. (as above). 
 
PART II.] PARTICULARS AND CATALOGUES. 335 
 
 7. Leasehold for Lives, 
 
 The estate of the said [vendor'] for the lives of [nominees, slating their ages 
 
 and addresses'], granted and demised by indenture bearing date on or about the 
 
 day of , 18 , and made between [lessor'] of, &c., of the one 
 
 part, and the said [vendor] of the other part, in all that [messuage or tenement, 
 
 garden, and piece of meadow land] situate at, &c. 
 
 8. Life Interest in a Freehold House. 
 
 The life interest of the bankrupt, aged , in a freehold messuage, &c., 
 
 situate, &c., in the occupation of , under an agreement for a lease, &c. 
 
 The bankrupt's interest in these premises is derived under the will of his father, 
 , deceased, dated, &c., whereby the fee simple of the said premises was 
 devised to certain trustees, upon trust, among other things, to pay the rents and 
 profits of the said premises to the said during his life. 
 
 g. Reversion in Freeholds. 
 
 The remainder or reversion of A. B. [in fee simple] expectant upon and to 
 take effect in possession immediately after the decease of C. D. of and in all, &c. 
 
 10. A Freehold and Copyhold Estate. 
 
 The estate called &c., situate at &c., comprising residence with appropriate 
 coach-houses, stabling, vinery, conservatories and outbuildings, walled-in garden, 
 ornamental plantations, lawn and grounds, and the farms called &c., the whole 
 containing by tithe survey acres, roods and perches. 
 
 The residence comprises &c. [State number and size of rooms, &'c^ 
 
 The coach-house and stable accommodation is sufficient for horses and 
 
 carriages. 
 
 The vinery and conservatories contain [State dimensions and particulars]. 
 
 The plantations, lawns and grounds, with the garden and site of residence and 
 buildings, comprise of land by the tithe survey. 
 
 This part of the property is in the occupation of [vendor], and possession will 
 be given on the completion of the purchase. 
 
 The farm is situate at &c., and comprises a farm-house with requisite 
 
 outbuildings and the quantities of land following [State names of parcels and 
 quantity of land in each, and total]. 
 
 This farm is now in the occupation of [on a lease for years 
 
 from ] at the yearly rent of jQ 
 
 [Add similar description of other farms.] 
 
 The whole of the foregoing property, with the exception of &c., is freehold, the 
 remainder being copyhold as under and subject to fines arbitrary on death or 
 alienation [to a heriot payable to the manor of ] and to the annual quit 
 
 rents stated below. 
 
 [Add statement of the parts copyhold and the quit rents.] 
 
 Attached to the property are rights of common &c. [State particulars], a right 
 of fishery &c., and a right of way over &c. 
 
 The property is subject to land tax, now £ per annum [in respect of &c., 
 
 the land tax in respect of &c. having been redeemed]. 
 
 The tithe rent charges in respect of the several parts of the property are as 
 under [State them]. 
 
336 FORMS AND PRECEDENTS. [PART II. 
 
 As regards the parts in the occupation of tenants the tithe rent charges are 
 payable by the tenants. 
 
 The property is sold subject to a right of way to the owners and occupiers of 
 &c. over &c.; also to the right of the tenant of the farm called &c. to remove the 
 granary situate &c., unless purchased under the provisions of the Landlord and 
 Tenant Act. 
 
 The covenants in the leases of the farms may be seen on application at the 
 office of Messrs. , at , solicitors, prior to the day of sale, or in the 
 
 auction-room on the day of sale. 
 
 [//" any free rents or rent charges under -wills &^e. payable, they should be 
 staled, and it would be proper also to state any drainage or level rate.^ 
 
 A map of the estate will be found attached to these particulars. 
 
 II. A Leasehold Estate. 
 
 A messuage [_or whatever the property may be'\ &c. 
 
 The premises are held for the residue now to come of a term of years, 
 
 commencing from the day of , i8 , granted to the said [vendor~\ 
 
 by an indenture of lease bearing date the day of , and made 
 
 between \^Statc the parties~\, under and subject to the rents, covenants and agree- 
 ments therein contained on the part of the tenant or lessee thereof to be respec- 
 tively paid and performed. 
 
 12. A Rent Reserved upon a Lease for a Term. 
 
 The yearly rent or annual sum of £ , reserved and payable to the said 
 
 [yendor~\, his heirs and assigns, for the term of years in and by ii certain 
 
 indenture of lease bearing date the day of , and made between 
 
 13. An Improved Ground-Rent. 
 
 An improved rent of ;^20, derived from two messuages &c., held by the vendor 
 for a term of years from , at a ground-rent of ;,f 10, and underleased by 
 
 him for the full term, wanting three days, at the rent of £,Tpt being an advance or 
 profit of £20 per annum on the original rent. 
 
 14. A Rent Charge in Fee. 
 
 The perpetual yearly rent charge or annual sum of £ issuing and payable 
 
 out of and charged and chargeable upon certain lands, tenements and heredita- 
 ments situate at D,, in the county of K., under or by virtue of a certain indenture 
 of grant bearing date the day of , and made between \_State the 
 
 parties'^ . 
 
 15. A Rent Charge for a Life. 
 
 The yearly rent charge or annual sum of ;i;^ issuing out of and chargeable 
 
 upon certain lands, tenements and hereditaments situate at D., in the county of 
 K., and payable to the said [vendor'] for and during the term of his natural life 
 under or by virtue of a certain indenture of settlement bearing date the 
 day of , and made between &c. 
 
Dock lot. 
 
 Bags. 
 
 54 
 
 20 
 
 55 
 
 20 
 
 PART II.] PARTICULARS AND CATALOGUES. 33/ 
 
 i6. Growing Timber. 
 
 [500] oak trees and [300] elm trees, marked with , and now standing 
 
 in or upon the farm and land [woods and grounds] hereinafter mentioned, that is 
 to say : 
 
 17. Imported Goods. 
 
 40 bags Ceylon Coffee. 
 
 Prompt, I November, 18 . Discount i per cent. 
 Per New Express, Hewitt @ Ceylon. 
 Reported 29 July, 18 . 
 Lying at West India Docks. 
 
 Mark. Pile. Sale lot. 
 
 V. & Co. ^ 21 I 
 
 126 lbs. l 2 
 
 B. 0. ) 
 
 15 bags Ceylon cardamoms. 
 
 Prompt 3 months, deposit ;^I5 per cent., no discount; or 14 days' discount, 2j 
 per cent. Such option to be declared within three days of the sale. 
 
 18. A Ship. 
 
 The ship or vessel, called the , built of , in 18 , of the bur- 
 
 then of tons, now lying at , whereof is master, with the furni- 
 
 ture, stores, materials and appendages thereto belonging. 
 
 The hull, masts, yards, standing and running rigging, with all faults as they 
 now are. 
 
 Inventory. 
 
 [List of anchors, cables, sails, boatswain's stores, gunner's stores, cooper's 
 stores, armourer's stores, ship steward's stores, cook's stores, surgeon's stores, 
 kentledges, boats, &c.] 
 
 ig. Engravings. 
 
 Lot I. View of Scarborough, by Suntach, scarce. 
 
 Lot 2. Etchings by J. T. Walker, A.R.A., on Japanese paper. 
 
 Lot 3. Death of Lord Manners, by Sherwin, proof. 
 
 Lot 4. The Spanish Festival, proof before letters. 
 
 Lot 5. C. Mellan, St. Peter Nolasque, extremely rare, the plate lost in a ship- 
 wreck. 
 
 Lot 6. The Lass with a delicate air ; and Sally's Disaster. 
 
 Lot 7. Elstracke : Robert Devereux, Earl of Essex, very fine and rare. 
 
 Lqt 8. A. Diirer : Portrait of the Emperor Maximilian, a large woodcut, rare. 
 
 20. Horses. 
 
 1 . DolUe, a black pony ; quiet to ride and drive, and used to children. 
 
 2. A bay mare ; has been ridden and driven in harness. 
 
 3. The property of Mr. . Captain, a roan gelding; a good hunter, 
 ran second at Aldershot this spring. 
 
338 FORMS AND PRECEDENTS. [PART II. 
 
 4. Ruby, a chestnut mare, by Hotshot ; quiet in single and double harness, 
 and constantly ridden and driven by a lady. 
 
 5. A brown gelding ; fast. 
 
 6. Chepstow, a bay horse, three years old, by Speculum, out of Odine (dam of 
 Turley), by Fitz-gladiateur. 
 
 7. A bay filly foal, by Thunderbolt, out of Inverness; foaled 20th April. 
 
 8. A roan gelding; a good hunter and hack, up to 14 stone, well known with 
 the Tickham foxhounds. 
 
 9. A brovi'n cob; quiet in harness and a good boy's hunter. 
 
 21. Cows and Heifers. 
 
 Alderneys or Jerseys. 
 
 Supposed time 
 Lot. Age. of calving. Colour. Remarks. 
 
 1. Two years old. Time up. Pure silver fawn. A pedigree heifer. 
 
 2. Two years old. Oct. 28. Grey fawn. Very choice. 
 
 3. Two years old. Particulars at time of sale. 
 
 Guernseys. 
 
 4. Two years old. Time up. Mulberry. Very hardy and rich. 
 
 5. Two years old. Oct. 27. Lemon and white. A large rich heifer. 
 
 6. Particulars at time of sale. 
 
 22. Shares in a Company. 
 
 London and Westminster Supply Association (Limited). Established in 1876 
 to carry on the business of a co-operative store. Capital jf 200,000, in 20,000 £^ 
 preference and 100,000 £1 ordinary shares. The preference shareholders are 
 entitled to 6 per ceni. per annum and also to three-tenths of the next profits. 
 
 Lot I . Fifty fully-paid £(, preference shares. 
 
 Lot 2. Fifty ;^5 preference shares, £2 paid. 
 
 23. Policy of Insurance. 
 
 A policy of insurance for the sum of £ , No. , dated , effected 
 
 with the Insurance Company on the life of \yendor~\, who is now in the 
 
 year of his age. Annual premium £ \_Slale any hontis added to 
 
 policy^ . 
 
 2n. Reversionary Interest in Personal Property. 
 
 One moiety of the sum of ;f 3,500 3 per cent. Consolidated Bank Annuities, 
 standing in the names of two trustees, and payable absolutely to the vendor on 
 the death of a lady now in the sixty-third year of her age {e). 
 
 25. Another Form. 
 
 The interest of Mr. J. G., as one of the six children of W. G., late of , 
 
 in the county of , Esquire, deceased, of and in the moneys to arise from 
 
 the sale of his real and general residuary personal property. 
 
 (e) In the contract the names of the of the deed under which the property is 
 [testator] and trustees, or the particulars vested, should be given. 
 
PART II.] CONDITIONS OF SALE OF REAL ESTATE. 339 
 
 The said W. G., by his will bearing date the , 18 , gave, devised and 
 
 bequeathed unto his trustees and executors all and singular his real and personal 
 estate whatsoever and wheresoever upon trust to permit his wife, S. G., to have 
 the entire use for her life, and after the decease of his said wife to sell and con- 
 vert the same into money, and after payment of all expenses to pay the same unto 
 and amongst his sons, the said J. G., W. G. and H. G., and his daughters, M. A. 
 W., A. M. S. and S. D., in equal proportions, share and share alike. The testa- 
 tor's real estate consists of the following property, &c. 
 
 26. Contingent Reversionary Interest (/). 
 
 A contingent reversionary interest in one seventh part or share of the sum of 
 £ 3I per cent. Reduced Annuities, to which the purchaser will become 
 
 entitled on the death of a gentleman aged , provided the vendor, aged , 
 
 shall be then living. 
 
 IV. CONDITIONS. 
 
 A. CONDITIONS OF SALE OF REAL ESTATE {a). 
 
 I. A Freehold or Copyhold Estate in One Lot. 
 
 1. No person shall advance less than £ at a bidding {b); and no bidding 
 shall be retracted. 
 
 2. The vendor reserves the right to bid (c). 
 
 3. The highest bidder shall be the purchaser; and if any dispute shall arise 
 respecting a bidding, the property shall be put up again at the last undisputed 
 bidding, or the auctioneer may deal with the dispute as he shall think fit. 
 
 4. Immediately after the fall of the hammer the purchaser shall pay to the auc- 
 tioneer a deposit of £ per cent, upon the amount of the purchase-money {d), 
 and sign the subjoined agreement. 
 
 (/") The point principally to be at- of the interest, and to produce before or 
 
 tended to in preparing particulars and at the sale a copy of the instrument under 
 
 conditions of sale of property of the nature which the interest is held, so as to give a 
 
 above mentioned is that the interest of- purchaser notice of the contents. See i 
 
 fered for sale be accurately described. Dav. 547. 
 
 There is little difficulty in the case of a (a) The auctioneer must regard the 
 
 simple policy of assurance on a life, or a precedents and forms of conditions of sale 
 
 life interest in possession, or an absolute of real estate which are given below as 
 
 vested reversion ; but it is an operation of examples, not as models ; see the observa- 
 
 the greatest nicety and difificulty to frame tions on p. 84, ante. Every variety of such 
 
 a description which may be comprised conditions, common or special, will be 
 
 within the ordinary limits of a particular, found in the well-known works of Messrs. 
 
 and shall at the same time accurately and Davidson, Key and Elphinsfone, Prideaux 
 
 clearly define an interest contingent or and Wolstenholme and Turner, 
 presumptive and liable to variation on {fi) Or "shall advance at a bidding 
 
 many different events. The task is, in less than the sum fixed by the auctioneer 
 
 fact, that of attempting to state in a few at the time of the sale." 
 words the effect of long and complicated (<;) Or " One person will bid at the 
 
 causes, and frequently, as might be ex- sale on behalf of the vendor." 
 pected, is unsuccessful. The safest way in [d) For a condition providing for the 
 
 such cases is to state generally the nature investment of the deposit, see/>osf, p. 351. 
 
340 FORMS AND PRECEDENTS. [PART 11. 
 
 5. The title to the property shall commence with an indenture dated , 
 being a conveyance upon a sale l_or being a mortgage] (^). 
 
 6. The purchaser shall require no other evidence of the identity of the property 
 purchased with the property described in the deeds and other documents offered 
 by the vendor as the title than a statutory declaration, to be made, if required, at 
 the purchaser's expense, that the property has been enjoyed consistently with the 
 title fur the last twenty years. 
 
 7. (/) The purchaser shall send his objections and requisitions, if any, in re- 
 spect of the title and the abstract, particulars and conditions, and anything ap- 
 pearing therein respectively to the vendor's solicitor within days from the 
 delivery of the abstract, and in this respect time shall be of the essence of the 
 contract; and in default of, or subject to, any such objections and requisitions, he 
 shall be deemed to have accepted the title. If he shall insist upon any objection 
 or requisition which the vendor shall be unable or shall not think fit to remove 
 or comply with, the vendor may, notwithstanding any negotiation or litigation 
 upon the subject of such objection or requisition, or any attempt to remove or 
 comply with the same, by notice in writing rescind the sale; in which case he 
 shall return to the purchaser the deposit without any interest, costs or other 
 payment. 
 
 8. The remainder of the purchase-money (5-) shall be paid, and the purchase 
 completed, on the day of next (/;) at the office of Mr. , 
 the vendor's solicitor ; and if from any cause whatever the purchase shall not be 
 completed on that day, the purchaser shall pay to the vendor interest on the 
 unpaid purchase-money (/) at the rate of ;^ /ler cent, per annum from that 
 day until the completion of the purchase. 
 
 9. The purchaser shall be entitled to possession (_;') of the property from the 
 said day of next (/•), up to which time all outgoings shall be 
 cleared by the vendor; and all current rents and outgoings shall be apportioned 
 for the purposes of this condition. 
 
 10. Upon payment of the residue of the purchase-money (/) at the time and 
 place aforesaid, the vendor shall make and execute to the purchaser a proper 
 assurance of the property, such assurance to be prepared by and at the expense 
 of the purchaser, and to be left by ,him for execution at the said office not less 
 than seven days before the said day of next (?«). 
 
 (e) Any special stipulations required (/) Or "the receipt of the rents and 
 
 by the state of the title should be inserted profits." 
 after this condition. {k) If it be not intended to give posses- 
 
 ( /■) Besides the cases cited on p. 98, sion until the purchase is settled, instead 
 
 ante, the following may be consulted: of inserting a particular day as in the text, 
 
 Tanner I'. Smith, 10 Sim. 410; Minchin z*. say: "On the execution of the convey- 
 
 Nance, 4 Beav. 332; Cutts i/. Tliodey, 13 ance." If it be wished to reserve the right 
 
 Sim. 206; 6 tur. 1027; Page v. Adam, 4 to sell the produce of a farm, say: "The 
 
 Beav. 269 : Rippingall v. Lloyd, 2 Nev. & vendor shall be at liberty to hold auction- 
 
 M. 410; Taylor !>. Brown, 2 Beav. 180; cf. sales upon the farms and lands in hand 
 
 Rede v. Farr, 6 M. & S. 121. at any time prior to the said day 
 
 {g) If there will be any valuation- of next, and to use the barns, stab- 
 money, add " and the valuation-money." ling, yards &c. until the Lady-day following, 
 
 (/;) The day named should be suffi- for the purpose of threshing out the corn 
 
 ciently distant to allow time for investigat- and carrying off or feeding the hay, straw 
 
 ing the title and preparing the conveyance, and fodder &c." 
 A quarter-day is the most convenient for (/) See note (g), supra. 
 
 purposes of apportionment. (m) A shorter form of this condition is ; 
 
 (() [And on the valuation-money,] " On payment of the remainder of the pur- 
 
PART II.] CONDITIONS OF SALE OF REAL ESTATE. 34I 
 
 n. The property is sold subject to existing tenancies and to all ease- 
 ments (ji), if any, affecting the same, whether mentioned in the particulars or 
 not (0). 
 
 1 2. The quantities stated in the particulars are believed and shall be taken to 
 be correct; and if any error shall be discovered in the particulars before the com- 
 pletion of the purchase, but not afterwards (/), compensation shall be made in 
 respect thereof by the vendor or by the purchaser, as the case may require, the 
 amount of such compensation to be settled, in case of difference {q), by two 
 referees, one to be appointed by each party, or their umpire ; and, if either party 
 shall fail to appoint a referee for the space of ten days after notice shall have 
 been given to him by the other party to do so, the referee appointed by the other 
 party may make a final decision alone (r). 
 
 13. If the purchaser shall fail to comply with these conditions, his deposit 
 shall be forfeited, and the vendor shall be at liberty to resell the property at such 
 time and in such manner as he shall think fit, with or without notice to the 
 purchaser at the present sale; and any deficiency of price resulting from the re- 
 sale, and all expenses attending the same, shall immediately after such re-sale be 
 made good by the defaulter at the present sale, and in case of non-payment shall 
 be recoverable by the vendor as liquidated damages (i). 
 
 [Memorandum, to be annexed to the particulars and conditions^ 
 Memorandum. I, , of , hereby acknowledge that, at the sale 
 
 by auction held this day of , of the property described in the 
 
 above particulars, I was the highest bidder for and was declared the purchaser 
 of the said property, subject to the above conditions, at the price of £ ; and 
 
 that I have paid the sum of £ , by way of deposit and in part payment of 
 
 the purchase-money, to , on behalf of ; and I hereby agree 
 
 to complete the said purchase according to the aforesaid conditions. 
 
 As witness my hand this day of , 18 . 
 
 [Purchaser's signatttreS] 
 
 As agent for , I confirm the sale; and I acknowledge the receipt of 
 
 the deposit. 
 
 [Auctioneer's (or solicitor's') signature, 
 adding " for the vendor."] 
 
 chase-money the purchaser shall have a ment shall be accepted and deemed valid 
 
 proper conveyance of the property at his witliout the concurrence of the tenant." 
 
 own expense." A condition that a mort- See i Dav. 4th ed. 691. 
 
 gagor shall not be required to join in the {/) Bos v. Helsham, L.R. 2 Ex. 72. 
 
 conveyanceisunnecessary: Corderi'.Mor- {q) [By the auctioneer, or by some 
 
 gan, 18 Ves. 444; Sugd. 396. counsel not before consulted by either 
 
 (k) [Quit-rents or other incidents of party, or by arbitration in the usual man- 
 tenure.] ner {or as above)] . 
 
 (0) If the property is in lease with other (r) If there is to be no compensation, 
 
 property not for sale, and it be intended to say : " The particulars are believed and 
 
 apportion the rent, the following condition shall be deemed to be correct, and if any 
 
 may be used : " The property intended to error shall be found therein, the same shall 
 
 be sold being let on lease to A. B., with not annul the sale, nor shall compensation 
 
 other property belonging to the vendor, at be allowed in respect thereof." 
 
 an entire rent of ;^ per annum, the sum (s) Sometimes it is added: "And it 
 
 of £ shall be apportioned as the rent shall not be necessary for the vendor to 
 
 incident to the reversion of the property tender a conveyance; " but this is unne- 
 
 intended to be sold ; and such apportion- cessary : Sugd. 241. 
 
342 
 
 FORMS AND PRECEDENTS. 
 
 [part II. 
 
 II. Conditions of Sale of a Leasehold in One Lot. 
 
 1-4. [ The same as in the last precedent^ 
 
 5. (J) The title to the property shall commence with an indenture dated the 
 day of > 18 » being the lease [or underlease] under which the 
 
 vendor holds the property. An abstract \or copy] of the lease {or underlease] 
 creating the term sold, as mentioned in the particulars, can be inspected at 
 during a period of fourteen days prior to the day of sale, or in the sale-room at 
 the time of sale; and the purchaser shall be deemed to have notice of all the 
 contents thereof, and such notice shall not be affected by any partial or incom- 
 plete statement of such contents in the particulars {Add^ in the case of an undei-- 
 lease, and no inquiry is to be made as to the contents of the superior lease iu)~\. 
 
 {Remaining conditions as in the preceding precedent, so far as applicable.^ 
 
 Memorandum \_as on preceding page~\. 
 
 (/) See Wolstenholme and Turner, 
 pp. 135, 141. 
 
 {u) Wolst. and Turner, 141. The fol- 
 lowing mode of referring to the lease is 
 sometimes adopted : — "The lease under 
 which the vendor holds the premises con- 
 tains the usual lessee's covenants to pay 
 the rent and keep the premises in repair, 
 \\iih a covenant to insure against fire, and 
 not to exercise any trade or business on 
 the premises; and the original \or a copy, 
 or an abstract] of sucii lease will be pro- 
 duced for perusal and examination at the 
 sale, and may be seen previously at the 
 office of the vendor's solicitor. The ven- 
 dor shall therefore be deemed cognizant 
 of the contents of such lease." As to 
 " usual " covenants, see Brookes v. Drys- 
 dale, 3 C.P.D. 52. If the circumstances 
 of the case require it, the following words 
 may be used : " The lease \pr underlease] 
 contains a restriction on assignment with- 
 out licence. The vendor will immediately 
 after the sale apply for and endeavour to 
 obtain the necessary licence, and, if unable 
 to obtain it within weeks from the 
 
 day of sale, shall be entitled to rescind 
 the contract for sale in the same manner 
 and upon the same terms as if the pur- 
 chaser had insisted on a requisition with 
 which the vendor could not comply." See 
 Wolst. and Turner, 142. Or: "And no 
 objection shall be made on account of any 
 variance between the covenants and con- 
 ditions in the original lease, and any under- 
 lease or agreement witli any tenant," The 
 following condition has been adopted, 
 where the underlessee was bound to insure : 
 "The lease contains covenants for the 
 payment of the rent, ^z., and for insurance 
 against fire in the names of the lessor and 
 
 the lessee, and usual covenants. The un- 
 derlease binds the lessee therein named to 
 insure in the joint names of himself and 
 the original lessor. A receipt for the last 
 premium on such insurance shall be con- 
 clusive evidence that the premises have 
 been and are insured according to the 
 underlease; and the purchaser shall admit 
 this to be a sufficient performance of the 
 covenant in the original lease, iSic." If the 
 term be of ancient ci"eation, it may be ne- 
 cessary to stipulate as follows:— ■" The 
 deed creating the term shall be produced, 
 but the purchaser shall not be entitled to 
 call for the production of, or to investigate 
 or to make any objections in respect of 
 any mesne assignment of the term." If 
 the lease be for lives, it may be proper to 
 say : " The purchaser shall take the state- 
 ment in the existing lease of the ages of 
 the persons for whose lives the property is 
 holden as conclusive evidence of the ages 
 of such persons respectively." Or: "The 
 purchaser shall not require any evidence 
 of the ages of the persons for whose lives 
 the property is holden, except such as is in 
 the vendor's possession, and shall make no 
 objection on account of any inaccuracy in 
 the statement of those ages." It is unne- 
 cessary to stipulate that the purchaser 
 shall enter into a covenant to indemnify 
 the vendor against the rents and covenants 
 of the lease ; see Staines v. Morris, i Ves. 
 & B. 8; Wilkins v. Fry, i Mcr. 244; 2 
 Rose, 371. If the vendor retains part of 
 the premises, and the rent is to be appor- 
 tioned without an underlease, the follow- 
 ing condition may be used: — "As the 
 messuage now offered for sale is included 
 in one lease with another messuage be- 
 lon^inrj to the vendor, it is intended that 
 
PART II. J CONDITIONS OF SALE OF REAL ESTATE, 
 
 343 
 
 III. Conditions of Sale of Freeholds, Copyholds and Leaseholds in Lots, 
 
 1. No person shall advance less than;^ at a bidding (^v); and no bidding 
 shall be retracted. 
 
 2. The vendor reserves the right to bid, by himself or his agent, once or oftener 
 for each lot (7£^). 
 
 3. The highest bidder for each lot shall be the purchaser thereof; and if any 
 dispute shall arise respecting any bidding, the lot in dispute shall be put up again 
 at the last undisputed bidding, or the auctioneer may decide the dispute. 
 
 4. Immediately after the fall of the hammer each purchaser shall pay to the 
 auctioneer {x) a deposit oi £ per cent, upon the amount of his purchase- 
 money (^y) and sign an agreement to complete the purchase in accordance vi'ith 
 these conditions (3). 
 
 5. Every recital and statement, vi'hether of a fact or of a conclusion of law, 
 contained in any deed, will or other document dated twenty years or upwards 
 prior to the day of sale, shall be deemed conclusive evidence of the facts and 
 matters therein recited or stated, or to be inferred therefrom, and of the contents 
 and due execution of all documents recited or stated therein and not in the ven- 
 dor's possession ; and no objection shall be made on account of the non-produc- 
 tion of any such last mentioned document. 
 
 each of the said messuages shall bear one 
 moiety, and the vendor and purchaser shall 
 enter into covenants wirh each other for 
 the payment and performance of his re- 
 spective proportion^ of the rent and cove- 
 nants, and they shall give to each other a 
 power of distress upon the premises pur- 
 chased and retained respectively, as an 
 indemnity against such proportion ; of 
 which deed of indemnity two parts shall 
 be executed, one for each party, and the 
 same shall be prepared at their joint ex- 
 pense." 
 
 {v) Or " shall advance at a bidding less 
 than the sum fixed by the auctioneer at 
 the time of putting up the respective lots." 
 
 (w) Or " The auctioneer shall be at 
 liberty to bid once or oftener on each lot 
 for the benefit of the vendor." Or " There 
 will be a reserve on each lot." 
 
 (jr) Or " to Mr. , the vendor's 
 
 solicitor." 
 
 (7) The purchaser is sometimes re- 
 quired to pay lot-money, as follows : " The 
 purchaser of each lot shall, immediately 
 after the sale, pay to the auctioneer, for his 
 trouble in selling the premises, the sum of 
 £ for lot , £ for lot , and 
 £ for each of the other lots; and shall 
 also pay the like sum to the solicitor of the 
 vendors for the contract or agreement, in 
 addition to the stamp duty." 
 
 (z) Insert next the conditions which it 
 is thought desirable to use with reference 
 to the abstract and the title. The follow- 
 ing form may be employed where the lots 
 
 are numerous : — " No purchaser whose 
 entire purchase-money shall fall short of 
 j£ , shall be entitled to a copy of the 
 abstract of the title of the vendor, except 
 at his own expense ; but an abstract of the 
 title of the vendor may be inspected at ihe 
 office of Mr. , the vendor's solicitor, 
 
 by the several purchasers whose respec- 
 tive purchase-money shall fall short of the 
 said sum of £ , and their respective 
 solicitors. Within days from the day 
 of the sale the vendor shall at his own ex- 
 pense deliver a copy of the said abstract 
 to every purchaser whose entire purchase- 
 money shall amount to or exceed the said 
 sura of ;^ , or his soHcitor." Or the 
 following : — ■ " The abstract of title may 
 be inspected by the respective purchasers, 
 or their solicitors, at the office of , 
 
 who will deliver a copy to each purchaser 
 requiring the same, at such purchaser's 
 expense ; the expense of a copy in no case 
 to exceed ^^5; but the vendors are not 
 to be required to furnish any further or 
 other abstract of title." The following are 
 specimens of stipulations limiting the pur- 
 chaser's rights with regard to the title : — ■ 
 " The title to lot commences with an 
 
 indenture, &c. ; the title to lot , with 
 
 the will, &c.; the title to lot , with 
 (and so on). As to lot , the pur- 
 
 chaser shall assume that A. B. was entitled 
 in fee simple at the time of his death. As 
 to lot , the vendor shall not be re- 
 
 quired to identify the freehold and copy- 
 hold portions of the estate. The purchaser 
 
344 FORMS AND PRECEDENTS. [PART II. 
 
 6. No purchaser shall require any other evidence of the identity of the lot 
 purchased by him with any of the property described in the deeds and other 
 documents offered by the vendor as the title than a statutory declaration, to be 
 made, if requiied, at the purchaser's expense, that the properly has been enjoyed 
 consistently with the title for the last twenty years. 
 
 7. The purchaser of each lot shall send his objections and requisitions, if gny, 
 in respect of the title and all matters appearing on the abstract, particulars or 
 conditions, to the vendor's solicitor within days from the delivery of the 
 abstract, and in this respect time shall be of the essence of the contract; and in 
 default of, ur subject to, any such objections and requisitions he shall be deemed 
 to have accepted the title. If he shall insist upon any objection or requisition 
 which the vendor shall be unable, or shall not think fit, to remove or comply 
 with, the vendor may, notwithstanding any negotiation or litigation upon the 
 subject of such objection or requisition, or any attempt to remove or comply with 
 the same, by notice in writing rescind the sale, in which case he shall return to 
 the purchaser the deposit without any interest, costs or other payment. 
 
 8. The remainder of the purchase-money of each lot (a) shall be paid, and the 
 purchase completed, on the day of next (i^), at the office of ; 
 and if from any cause whatever the purchase of any lot shall not be completed on 
 that day, the purchaser shall pay to the vendor interest on the unpaid purchase- 
 money (<-) at the rate of £ per cent, per annum from that day until the 
 completion of the purchase. 
 
 9. The purchaser of each lot shall be entitled to possession (d) of the lot pur- 
 chased by him from the said day of next, up to which time all 
 outgoings shall be cleared by the vendor ; and all current rents and outgoings 
 shall be apportioned for the purposes of this condition. 
 
 10. Upon the payment of the residue of the purchase-money (f) at the time 
 and place aforesaid the vendor shall make and execute to the purchasers proper 
 assurances of their respective lots, such assurances to be prepared by and at the 
 expense of the purchasers, and to be left by them for execution at the said office 
 not less than seven days before the said day of next(/). 
 
 shall not require the production of the rent of £ per annum, the said rent shall 
 original grant of lot . With respect be apportioned among the said lots in the 
 to lot , the purchaser shall accept proportions mentioned in the particulars 
 and take such interest therein as the ven- of sale; and the purchasers shall, at their 
 dor has. No objection shall be made to own expense, give and execute such mu- 
 any document dated years or upwards tual indemnities with regard to the pay- 
 prior to the day of sale being unstamped ment of the said apportioned rents, and the 
 or insufficiently stamped, and any docu- observance and performance of the cove- 
 ment which any purchaser shall require to nants and conditions relating to the lots 
 be stamped or further stamped shall be purchased by them, as are usual in like 
 procured to be so stamped by him at his cases." If the purchasers are to have un- 
 own expense. der-leases, say : " As the property is held 
 (a) See stifra, p. 340, note (g). under a lease at one entire rent of £ 
 (hi) See supra, p. 340, note iji) . per annum, the vendors shall execute un- 
 (c) See supra, p. 340, note (j). der-leases to the several purchasers of the 
 (if) See supra, p. 340, note (/). lot or lots purchased by them respectively 
 («) See supra, p. 340, note {g). for the whole original term, wanting three 
 (/) If any part of the property is lease- days, at the rents apportioned thereto in 
 hold, and the rent is to be apportioned the particulars; the under-leases to con- 
 among different lots, the following condi- tain covenants similar to those contained 
 tions may be used : " The property com- in the original lease, and all necessary 
 prised in lots and covenants for indemnifying tlie several 
 being held under one lease, at an entire purchasers against the payment of the 
 
PART II.J CONDITIONS OF SALE OF REAL ESTATE. 
 
 345 
 
 11. The several lots are sold subject to existing tenancies, and to all ease- 
 ments(^), if any, affecting the same, whether mentioned in the particulars or not. 
 
 12. The quantities stated in the particulars are believed, and shall be taken, to 
 be correct, and if any error shall be discovered in the particulars before the com- 
 pletion of the purchase, but not afterwards, compensation, shall be made in 
 respect thereof by the vendor or by the purchaser, as the case may require, the 
 amount of such compensation to be settled, in case of difference, by two referees, 
 one to be appointed by each party, or their umpire; and if either party shall fail 
 to appoint a referee for the space of ten days after notice shall have been given 
 to him by the other party to do so, the referee appointed by the other party may 
 make a final decision alone (/;). 
 
 13. If any purchaser shall fail to comply with these conditions, his deposit shall 
 be forfeited, and the vendor shall be at liberty to re-sell the property at such time 
 
 rents, or performance of the covenants in 
 respect of any other lots than their own, 
 and for securing the payment of the rent 
 and performance of the covenants by the 
 several purchasers in respect of their own 
 lots. All the under-lessees shall execute 
 counterparts of their leases; and all in- 
 struments required by this condition shall 
 be prepared by, and at the expense of, the 
 respective purchasers." If the largest 
 purchaser is to take an assignment and 
 grant under-leases to the other purchasers, 
 say: "As the property comprised in lots 
 is held under one lease, at an en- 
 tire rent of _^ , the rent shall be appor- 
 tioned among the several lots in the shares 
 mentioned in the particulars. The pur- 
 chaser of the largest part in value shall 
 take an assignment of the existing lease, 
 and shall execute to the other purchasers 
 under-leases for the whole term, wanting 
 three days, of their respective lots, at the 
 apportioned rents, such under-leases to 
 contain all necessary covenants, &c. [as 
 abovel ; and if any lots remain unsold, the 
 vendor shall, for the purposes of this con- 
 dition, stand in the place of the purchaser 
 of the largest part in value. All the under- 
 lessees shall execute counterparts of their 
 leases ; and all instruments, &c." \as 
 
 If the title-deeds relate to several of the 
 lots for sale, the following condition may 
 be inserted : " The title-deeds shall be re- 
 tained by the vendor until all the estates 
 now offered for sale shall be sold, when 
 they shall be delivered over to the largest 
 purchaser in value, who shall give to the 
 other purchasers, at their expense, ac- 
 knowledgements of their right to produc- 
 tion, and to delivery of copies, of the deeds 
 [and undertakingsfor safe custody thereof]. 
 Whilst the deeds remain in the seller's 
 
 hands, he shall produce them to the sev- 
 eral purchasers, when required, and every 
 purchaser may, at any time, have attested 
 copies of the deeds, at his own expense." 
 Or the following : " If any of the title-deeds 
 in the possession of the vendor relate to 
 more than one lot, the same shall be de- 
 livered to the purchaser of the lot which 
 shall be sold at the largest price, who shall 
 give to the other purchasers, at their ex- 
 pense, acknowledgements, &c. [as above] ; 
 and if the price of the two highest lots be 
 equal, the purchaser of the lot which stands 
 first in the particulars of sale shall have the 
 privilege hereby given to the largest pur- 
 chaser. If any of the lots shall remain 
 unsold, the vendor shall be considered as 
 standing in the place of, and shall have the 
 privileges which are herein proposed to be 
 given to, the largest purchaser." If the 
 title-deeds relate to property included in 
 the particulars as well as to property not 
 for sale, the following condition may be in- 
 serted: "All such deeds, &c., as concern 
 the title of any lot together with other prop- 
 erty shall be delivered over to or retained 
 by the largest purchaser or owner in value, 
 of the property to which the same deeds 
 relate ; such purchaser or owner giving to 
 the purchaser or purchasers and owner or 
 owners of the other property acknowledge- 
 ments, &c. [as above] ; such acknowledge- 
 ments and undertakings to be prepared by 
 and at the expense of the person or per- 
 sons requiring the same." See Convey- 
 ancing and Law of Property Act, 1881 ; cf. 
 post, p. 348, Form 11 ; Dav. Cone. Prec. 
 104. As to the liability of the purchaser 
 of one lot to perform the contract in the 
 absence of the purchasers of other lots, see 
 Patterson v. Lon,6 Beav. 590; 7 Jur. 1049. 
 
 (^) See supra, p. 341, note («). 
 
 (/i) See supra, p. 341, note (^). 
 
346 FORMS AND PRECEDENTS. [PART II. 
 
 and in such manner, as he shall think fit, and with or without notice to the pur- 
 chaser at the present sale ; and any deficiency of price resulting from the re-sale, 
 and all expenses attending the same, shall immediately after such re-sale be made 
 good by the defaulter at the present sale, and, in case of non-payment, shall be 
 recoverable by the vendor as liquidated damages. 
 
 \_Me7noraiidumy to be annexed to the particulars and eon.ditions.~\ 
 I, , of , hereby acknowledge that at the sale by auction held 
 
 this day of of the property described in the above particulars, I 
 
 was the highest bidder for, and was declared the purchaser of, lot , subject 
 
 to the foregoing conditions, at the price of £ , and that I have paid the 
 
 sum of £ by way of deposit and in part payment of the purchase-money to 
 
 , on behalf of ; and I hereby agree to complete the said pur- 
 
 chase according to the aforesaid conditions. 
 
 As witness my hand this day of 
 
 S^Purchaser'' s signature.'] 
 
 As agent for , I confirm the sale; and I acknowledge the receipt of 
 
 the deposit. 
 
 [Auctioneer's {or solicitor's) signature, 
 adding " for the vendor."] 
 
 IV. Conditions of a Sale by the Court (i). 
 
 1. No person is to advance less than £ at a bidding. 
 
 2. The sale is subject to a reserved bidding for each lot, which has been fixed 
 by the judge to whose court this cause is attached; and the vendor reserves a 
 right to bid. 
 
 3. Each purchaser is at the time of sale to subscribe his name and address to 
 his bidding, in the bidding paper ; and the abstract of title, and all written no- 
 tices, and communications, and summonses, are to be deemed duly delivered to 
 and served upon the purchaser by being left for him at such address, unless or 
 until he is represented by a solicitor. 
 
 4. Each purchaser is, at the time of sale, to pay a deposit of ^ per cent. 
 on the amount of his purchase-money to A. B., the person appointed by the said 
 judge to receive the same (7). 
 
 5. The chief clerk of the said judge will after the sale proceed to certify the 
 result; and , the day of , 18 , at of the clock 
 in the noon, is appointed as the time at \\'hich the purchasers may, if they 
 think fit, attend, by their solicitors, at the chambers of the said judge in Rolls 
 Yard, Chancery Lane \or as may be\ in the county of Middlesex, to settle such 
 certificate. The certificate will then be settled, and will in due course be signed 
 and filed, and become binding, without further notice or expense to the pur- 
 chasers. 
 
 6. The vendor is, within days (Ji) after such certificate has become bind- 
 ing, to deliver to each purchaser, or his solicitor, an abstract of the title to the lot 
 or lots purchased by him, subject to the stipulations contained in these conditions. 
 And each purchaser is, within days after the actual delivery of the abstract, 
 to dehver at the office of Mr. A. B., solicitor at C, in the county of D., a state- 
 ment in writing of his objections and requisitions, if any, to or on the title as 
 
 (?) See Dan. Forms, No. 1107. {k) The ordinary period is four or seven 
 
 (/) It is not usual to require a deposit, daysafterthecertificatehasbecomebinding. 
 
PART n.] CONDITIONS OF SALE OF REAL ESTATE. 347 
 
 deduced by such abstract; and upon the expiration of such last-mentioned time 
 — and in this respect time is to be deemed of the essence of the contract — the 
 title is to be considered as approved of and accepted by such purchaser, subject 
 only to such objections and requisitions, if any. 
 
 7. Each purchaser is, in addition to the amount of his bidding at the sale, to 
 pay the value of all timber and timber-like trees, tellers and pollards, if any, on 
 the lot purchased by him, down to is. per stick inclusive, the amount thereof to be 
 ascertained by a valuation to be made in manner following, that is to say : — Each 
 party (vendor and purchaser) or his solicitor is, within days after the chief 
 clerk's certificate has become binding, to appoint by writing one valuer, and give 
 notice in writing to the other party of such appointment ; and the valuers so ap- 
 pointed are to make such valuation; but before they commence their duty, they 
 are to appoint an umpire by writing; and the decision of such valuers, if they 
 agree, or of such umpire, if they disagree, is to be final; and in case the purchaser 
 shall neglect or refuse to appoint a valuer, and give notice thereof, in the manner 
 and within the time above specified, the valuation is to be made by the valuer 
 appointed by the vendor alone, and his valuation is to be final. 
 
 8. Each purchaser is, under an order for that purpose to be obtained by 
 him, or, in case of his neglect, by the vendors at the costs of the purchaser, upon 
 application at the chambers of the said judge, to pay the amount of his purchase- 
 money, after deducting the amount paid as a deposit, together with the amount 
 of the valuation under the 7th condition, if any, into court, to the credit of l&'c. ; 
 as in the judgment or order directing the sale^ on or before the day of 
 
 ,18 ; and if the same is not so paid, then the purchaser is to pay inter- 
 est on his purchase-money, including the amount of such valuation, at the rate of 
 £ per cent, per annum, from the day of , iS , to the day 
 
 on which the same is actually paid; deducting property-tax. Upon payment of 
 the purchase-money in manner aforesaid, the purchaser is to be entitled to pos- 
 session, or to the rents and profits, as from the day of , 18 , 
 down to which time all outgoings are to be paid by the vendors. 
 
 9. If any error or misstatement shall appear to have been made in the above 
 particulars, such error or misstatement is not to annul the sale, nor entitle the 
 purchaser to be discharged from his purchase; but a compensation is to be made 
 to, or by, the purchaser, as the case may be; and the amount of such compensa- 
 tion is to be settled by the said judge at chambers. 
 
 \_Add to these sttch conditions respecting the title and title-deeds as 
 the conveyancing counsel shall advise to be necessary or proper. '\ 
 Lastly. If the purchaser shall not pay his purchase-money at the time above 
 specified, or at any other time which may be named in any order for that purpose, 
 and in all other respects perform these conditions, an order may be made by the 
 said judge, upon application at chambers, for the re-sale of the lot purchased by 
 such purchaser, and for payment by the purchaser of the deficiency, if any, in the 
 price which may be obtained upon such re-sale, and of all costs and expenses 
 occasioned by such default. 
 
 V. Conditions of Sale of Standing Timber. 
 
 1-4. \_The same as in Precedent III., ante, p. 311] (J). 
 
 5. Each purchaser, his agents, servants and workmen, with or without horses, 
 carts and waggons, shall have liberty to enter into the premises where the timber 
 
 (/) Sometimes a clause to the following relating to the biddings : — " The auction- 
 effect is included among the conditions eer shall be at liberty to refuse any bidding 
 
348 FORMS AND PRECEDENTS. [PART II. 
 
 is growing, and to fell the trees, and to lop, cut and strip off the branches, tops 
 and bark, and to dig saw-pits, and break up and saw the timber, trees and wood, 
 in proper and convenient parts of the premises, and to put and make the said 
 branches, tops and bark into convenient faggots, bundles or packages, and to lay 
 and place the same in convenient parts of the premises to dry, and to remove the 
 trees, branches, tops and bark off the premises by the usual and proper roads. 
 
 6. The trees shall be [axe-fallen], and [the roots got out of the ground] in a 
 workmanlike manner, and such of the trees as grow on the banks of brooks, gut- 
 ters or rivulets shall be [axe-fallen] under the direction of the vendor, and in such 
 a manner that the banks may not be broken in (m). 
 
 7. The whole of the trees shall be cut down on or before the day of 
 
 , and the same, with the branches, tops and bark, shall be removed from 
 off the premises before the day of ; and any, or any part, of the 
 
 trees, branches, tops or bark which shall not be cut down or removed before the 
 said respectn-e days shall thenceforth be forfeited to the vendor. 
 
 8. In entering and remaining upon the said premises, and felling, lopping, 
 stacking and removing the timber, each purchaser, his agents, servants or work- 
 men, shall use as much expedition and do as little damage as possible ; and each 
 purchaser shall, by or before the said day of , well and sufficiently 
 repair and amend the hedges or fences, if any, which shall be broken or damaged 
 by the fall or removal of the timber, or in any manner, by such purchaser, his 
 agents, servants or workmen, and shall fill up the said saw-pits, and make good 
 any other injury or damage which he or they shall commit or occasion in or about 
 the lands of the vendor. No dogs are to be taken on to the estate by either the 
 purchasers or their workmen. 
 
 9. The remainder of the purchase-money shall be paid in manner following, 
 that is to say, one moiety, &c. [^as the case may be'] («) . 
 
 to. If any dispute or difference shall arise respecting any of the premises or 
 matters aforesaid, the same shall be settled by two referees, &c. 
 
 II. If any purchaser or purchasers shall neglect or refuse to comply with any 
 of the above conditions, the deposit-money and the wood uncleared shall be for- 
 feited, the lot or lots re-sold by public or private sale, and the deficiency, if any 
 on the second sale, together with all expenses attending the same, shall be made 
 
 and to withdraw, consolidate or divide any purchaser shall have carried- from and off 
 
 of the lots contained in the particulars of the said crops of grain, without taking any 
 
 sale." And the following condition is horse or carriage on such crops for such 
 
 given in i Prid. 53 : — " The vendor shall crops for such purpose." 
 not be answerable for the description of "The purchaser shall allow [five] stakes 
 
 any lot after the fall of the hammer. The for every tree fallen in the hedge-rovi/s or 
 
 purchaser must take it with all faults, er- fences, to make up the gaps in the said 
 
 rors of description or number, and be at fences where such trees are so fallen as 
 
 all risks." aforesaid." 
 
 (m) The following conditions may be (n) Sometimes a bond is required for 
 
 used, if necessary : — " The purchaser shall completion of the purchase, as follows : — 
 have the boughs and tops of the timber " The purchaser shall pay a deposit, 
 
 and other trees cut off and laid on the &o., and shall also, within four days from 
 
 bodies thereof, or under the hedges and this date, enter into a bond, with sufficient 
 
 fences, whereby the least damage may be security, to be approved of by the vendor, 
 
 done to the crops of grain, within three for the due payment of the remainder of 
 
 days after their being fallen, and shall not the purchase-money according to these 
 
 work or carry away any part of the said conditions; until which security is given, 
 
 timber or other trees, till after such crops the purchaser shall not commence cutting 
 
 of grain are cut or carried, except the bark the wood." 
 of such timber or other trees, which the 
 
PART II.J CONDITIONS OF SALE OF REAL ESTATE. 
 
 349 
 
 good by the defaulter or defaulters at the present sale and be recoverable by the 
 vendor as and for liquidated damages. 
 [_Me?noraniium.'] (See supra^ p. 346.) 
 
 VI. A Few Miscellaneous Conditions. 
 
 The purchaser, immediately on his being declared a purchaser, shall pay a, 
 deposit oi £z^per cent, in part payment of his purchase-money, and a charge to 
 the auctioneer of one guinea on each lot, and also the expense of the stamp upon 
 the subjoined contract, to which he shall immediately subscribe his name; and in 
 default of his complying with any of these conditions, the vendor, or the auctioneer 
 on his behalf, shall be at liberty, either immediately or within fourteen days, to 
 declare the sale void, and to put up the property again, when the bidding of such 
 defaulting party, or of any one on his behalf, may be rejected {0). 
 
 The (/) timber and other trees, pollards, stands, saplings and underwood upon 
 the property, down to and including those of the value of l^. each (^), shall be 
 taken by the purchaser at a valuation (r), and he shall pay for the same in addition 
 
 {6) See Roberts v. Bozon, 3 Atk. Conv. 2. 
 
 (/) " Fixtures of every description, and 
 the." 
 
 {q) " And the crops, manure and straw." 
 
 (r) Or, more shortly, instead- of " and 
 he fair value," say : " To be made by 
 
 two valuers, or their umpire appointed in 
 the usual way, or otherwise at their fair 
 value ; " or : " To be made by the auc- 
 tioneer, at the joint expense of the vendor 
 and purchaser." 
 
 Upon sales of residential properties it 
 is usual to say in the particulars : — "The 
 growing timber, also the stoves, bells and 
 usual house fixtures will be included in 
 the purchase. The blinds, carpets, cor- 
 nices, and a few other items, of which an 
 inventory will be produced at the time of 
 sale, which can be inspected prior tliereto 
 at the offices of the auctioneers, are to be 
 purchased in the customary way (see con- 
 ditions of sale). The purchaser will also 
 have the option (to be declared in writing 
 to the auctioneers on or prior to the 
 day of next) of purchasing, by valua- 
 
 tion in a similar manner, the growing crop 
 of grass ; should he not elect to do so, the 
 vendor reserves the power of selling the 
 growing crop of grass by auction, the pur- 
 chasers of the grass to have the oppor- 
 tunity of cutting and removing it with 
 horses, workpeople &c., at any time before 
 the next." The conditions then pro- 
 
 vide as follows : — ■ " The several tenant's 
 fixtures and other articles specified in the 
 inventory mentioned in the particulars of 
 sale shall be taken by the purchaser at a 
 valuation, to be made by two persons, one 
 to be named by the vendor, and the other 
 
 by the purchaser, or by an umpire, to be 
 appointed by the valuers ; but if ehher the 
 vendor or purchaser shall fail to name a 
 valuer, or to notify in writing his nomina- 
 tion to the opposite party on or before the 
 day of next, or if the valuer named 
 by either party shall fail to act, then the 
 valuation shall be made by the valuer (if 
 his nomination shall have been notified as 
 aforesaid) of the other party alone. If no 
 such valuation as aforesaid shall be made, 
 then the said fixtures and other articles 
 shall be paid for by the purchaser at their 
 fair value." 
 
 When it appears preferable to mention 
 the exact articles to be taken at a valua- 
 tion, the condition may begin as follows : — 
 
 "The several [fixtures] articles and 
 things in and about the said premises 
 mentioned in the schedule hereunder 
 written \or "of which an inventory will be 
 produced at the sale"] shall be taken by 
 the purchaser at a valuation, &c. \_as 
 above]." 
 
 For tenants' fixtures the following form 
 may be used : — 
 
 " All such articles and things in or an- 
 nexed to'the said messuage and premises, 
 which, as between landlord and tenant, 
 are or would be deemed to belong to the 
 tenant or occupier of the said premises, 
 shall be taken by the purchaser at a valua- 
 tion, &c." 
 
 For articles of furniture ; — 
 
 "All the articles of household or other 
 furniture, utensils and things now in or 
 belonging to the said messuage or dwel- 
 ling-house, shall be taken, &c." 
 
 For the plant of a colliery, &c. : — 
 
350 
 
 FORMS AND PRECEDENTS. 
 
 [part II. 
 
 to the purchase-money bid by him at the sale (s). The valuation shall be made 
 by two referees, one to be chosen by each party, or their umpire. Each party 
 shall appoint a referee and give notice (i) thereof in writing to the other party on 
 or before the day of next, and the referees shall, before they begin 
 
 to act, appoint an umpire in writing. In case either party shall neglect or refuse 
 to appoint a referee, or to give such notice within the time specified, or if the 
 referee appointed by either party shall neglect or refuse to act, the referee ap- 
 pointed by the other party, if duly notified, shall make a final valuation alone. If 
 no such valuation as aforesaid shall be made, the said (u) trees &c. (f) shall be 
 paid for by the purchaser at their fair value (w). 
 
 The purchaser shall take at a fair valuation, to be made by two appraisers, one 
 to be appointed by the vendor and the other by the purchaser, or their umpire, to 
 be chosen in the usual manner, all the furniture, tenant's fixtures, fittings and 
 
 " The steam and other engines, rail- 
 roads, coal-waggons, and all the machin- 
 ery, utensils, implements and plant used 
 and being in and about the colliery called 
 the Colliery, shall be taken by the pur- 
 chaser according to the inventory, and at 
 the valuation thereof, to be produced at 
 the time of sale ; and the purchaser shall 
 pay for the same at such valuation, in ad- 
 dition to the purchase-money, on the 
 day of , i8 , when the purchase is to 
 be completed." 
 
 For a brick-kiln, &c. (See Rouse's 
 Practical Man) : — 
 
 " The purchaser shall pay by valuation 
 for the brick-kiln, and, at the option of the 
 purchaser, all bricks, tiles, ware and pre- 
 pared earth ; but, if not taken, the ven- 
 dor shall have until to complete and 
 dispose of the same, and the use of the 
 brick-kiln and yards for that purpose. 
 The valuation shall be made, &c." 
 
 For farming stock and crops, more 
 fully (See Rouse's Practical Man) : — 
 
 " The purchaser shall pay by valuation, 
 as below provided, for the tillage of the 
 summer lands ; for seed, sowing and hoe- 
 ing of turnips; for all hay and straw left 
 on the premises which shall be stacked in 
 the usual places; for all feed and after- 
 grass on the pastures and stubbles ; for all 
 clover and other seeds, and for sowing, 
 harrowing and cultivating the same, with 
 the spring crops ; for muck, mixtures and 
 composts, and for labour in turning over 
 such as shall not be carted on the land, 
 and for the carting, when carted on the 
 land ; and also for all such other matters 
 and things as are customary to be allowed 
 and paid by an incoming to an outgoing 
 tenant. The present year's corn and crops 
 are to be laid in the barns, or stacked on 
 the premises : the purchaser shall pay for 
 
 thrashing and dressing, and getting in the 
 stacks and, carrying the corn, when dressed, 
 to market, not exceeding the distance of 
 , &c., and have the straw, chaff and 
 calder arising therefrom, the vendor ap- 
 pointing the threshers and having the use 
 of the barns and barn-yards up to the 
 day of for that purpose." 
 
 (s) Irk the case of timber, an addition to 
 the following eiiect is sometimes made: — 
 
 " But in case the value of the timber 
 and timber-like trees shall, according to 
 the valuation, exceed the sum of _,^ , 
 
 the purchaser shall ha^e the benefit of 
 such excess, and the sum of /^ shall 
 
 be considered as the full price of the whole 
 of such timber and timber-like trees." 
 
 And the following (see Brooke v, 
 Rounthwaite, 5 Hare, 298 ; 15 L.J. Ch. 
 332; 10 Jur. 656) : — 
 
 " In case it shall be necessary to post- 
 pone the valuation until the fall of the 
 leaf, the purchaser shall give to the vendor 
 a bond in a sufficient penalty, conditioned 
 for the payment of the sum at which the 
 timber shall be valued within one calendar 
 month after such valuation." 
 
 (/) Tew V. Harris, 11 Q.B. 7; 17 L.J. 
 Q.B. l; II Jur. 947. 
 
 («) " Fixtures and." 
 
 (v) ■■ And crops, manure, and straw.'' 
 
 (w) See I Dav. 523. O/-" At the sum 
 of ;,^ , at which sum they have been 
 
 specially valued for the purposes of the 
 present sale." The expense of the valua- 
 tion is sometimes provided for as fol- 
 lows : — 
 
 " The expense of the valuation, and of 
 all surveys, references, decisions, awards 
 and other matters connected therewith, 
 shall be paid by the purchaser; " or "by 
 the vendor and purchaser in equal moie- 
 ties." 
 
PART IJ.J CONDITIONS OF SALE OF REAL ESTATE. 35 1 
 
 effects on the premises, other than the stock in trade and such things as the ven- 
 dor may desire to remove; and the decision of the appraisers or umpire as to 
 what are tenant's fixtures and fittings shall be conclusive. The purchaser shall 
 also take such of the stock in trade upon the premises as shall not have been sold 
 or disposed of at the time of the completion of the purchase, according to the 
 valuation of two gangers, one to be appointed by the vendors and the other by 
 the purchaser, or their urfipire, to be chosen in the usual manner; and the amount 
 of the respective valuations, and a proportion for the time unexpired of the licences 
 and fire insurances appertaining to the premises and the effects therein, and all 
 outgoings, shall be paid by the purchaser at the time of the completion of the 
 purchase; and if the purchaser shall neglect or refuse to appoint an appraiser for 
 three days after being requested so to do, or to appoint a gauger on request, or if 
 the appraiser or gauger appointed by the purchaser shall neglect or refuse to nom- 
 inate an umpire on request, or to proceed in the valuation, the appraiser or gauger 
 appointed by the vendor shall make the valuation alone and the same shall be 
 binding on the purchaser (j;) . 
 
 Within seven days after the deposit shall be paid, Mr. A. B. (_)') shall lay out 
 the remainder of the same, after deducting his commission, in the purchase of 
 Exchequer bills ; and such Exchequer bills, if paid off, shall be replaced by other 
 like bills ; and such Exchequer bills shall be deposited with the bankers of the 
 said A. B., until the purchase shall be completed or abandoned ; and if the pur- 
 chaser cannot be compelled to complete his purchase and shall be enabled at law 
 to recover his deposit, the Exchequer bills in which such deposit, after deducting 
 the auctioneer's commission as aforesaid, shall then be invested, together with the 
 interest, if any, which may have been received or become due for or upon the 
 same bills or for or upon the bills in lieu of which the same may have been taken 
 or purchased, and together with the amount of the said commission of the auc- 
 tioneer, shall be accepted by the purchaser in full satisfaction of all claims for his 
 deposit and the interest thereon and all expenses of investigating the title or 
 otherwise. 
 
 The premises were surrendered in September, 18 , to the use of the late Mr. 
 J. W., conditionally as a security for )Cs°° "■^'^ interest. At a court held in May, 
 18 , the homage presented the non-payment of the said ;^500, and that there 
 was then due ^£^541 13^. 7^-, or thereabouts, and Mr. W. was thereupon admitted 
 tenant. The right of redemption is supposed to be now barred or extinguished, 
 and the vendor's title is rested on adverse possession under the Statute of Limita- 
 tions. The purchaser shall not raise any objections on the ground of a possibly 
 existing right of redemption, or require proof of circumstances constituting ad- 
 verse possession under the statute, but shall accept such title as the vendor has to 
 the premises, without requiring the concurrence of any other person or persons. 
 
 The estates comprised in the particulars are, together with other estates which 
 produce a clear yearly rental of ;i;^ , or thereabouts, subject to a jointure 
 
 rent-charge of ;f per annum, and to z, gross sum o{ ;(^ charged thereon 
 
 for portions; and it is intended that such of the estates subject thereto as are not 
 comprised in the said particulars shall be henceforth subject to the said jointure 
 and portions, and shall, before the completion of the purchase, be conveyed (sub- 
 ject to the said jointure and portions, and to some other charges of small amount 
 now affecting the same) to two trustees, to be named by the vendor, to indemnify 
 the purchaser against the jointure and portions. The purchaser shall be satisfied 
 with the indemnity so to be provided, and shall make no objection in respect of 
 
 (x) Key and Elphinstone's Compendium of Precedents in Conveyancing, p. 195. 
 (/) The auctioneer. 
 
352 FORMS AND PRECEDENTS. [PART 11. 
 
 any of the matters mentioned or referred to in this condition, and shall not be 
 entitled to require any other evidence of the facts than the vendor is able to 
 furnish. 
 
 The purchaser shall accept the vendor's bond (to be prepared by, and at the 
 expense of, the vendor), in the penalty of ;^ , as an indemnity against a life 
 
 annuity o{ £ affecting (z) the premises. 
 
 The purchaser shall not require evidence of any grant from the Crown under 
 which any part of the premises is or may have been held. 
 
 The purchaser shall presume payment and satisfaction of several legacies 
 amounting to £ , which were charged upon the property by a will dated , 
 
 and directed to be paid, &c. 
 
 The purchaser shall take a statutory declaration that for years and 
 
 upwards no interest has been paid upon a mortgage made , and evi- 
 
 dence that subsequent mortgages of the property have since been made and paid 
 off, as conclusive evidence that such first-mentioned mortgage has been paid off 
 and satisfied, and that a proper reconveyance of the legal estate was made. 
 
 The purchaser shall presume that A. B. was the only son of C. B,, and was born 
 at , on ; that A. F. was lawfully intermarried with A. N. ; and 
 
 that M. S., who was tenant for life, &c., is dead, without requiring any evidence of 
 the fact. 
 
 The purchaser shall assume that the testator A. B. was entitled in fee simple 
 at the date of his will, and no evidence shall be required on this point. 
 
 The vendor being a trustee [or a mortgagee selling under a power of sale] 
 will give only the statutory covenant implied by his being expressed to convey as 
 trustee [o;- mortgagee] . 
 
 B. CONDITIONS OF A LETTING BY AUCTION (a). 
 
 1. The biddings shall be upon the annual rent, to begin at £ per annum ; 
 and no person shall advance less than at a bidding. 
 
 2. The highest approved bidder shall be the tenant or lessee; but no bidding 
 shall be accepted, unless approved of by the landlord's agent (d). 
 
 3. Immediately after the fall of the hammer the highest approved bidder 
 (being declared such by the auctioneer) shall pay into the hands of a 
 deposit of ^ , in part of the first half-year's rent, and sign an agreement for 
 taking the premises according to these conditions. 
 
 4. The landlord shall let, and the highest approved bidder shall take, the 
 [farm, lands and] premises described in the foregoing particulars [with the fix- 
 tures now in, upon, or belonging to the same (or " together with the use of the 
 fixtures, furniture, utensils, and things particularly mentioned in the schedule here- 
 unto annexed")], for the term of years from the day of , 
 at the highest yearly rent bid for the same, clear of all existing and future taxes, 
 
 (2) " Part of." to express the conditions in such a way 
 (a) It has not been considered neoes- that, when confirmed by a proper contract, 
 sary to insert more than one general form, and signed by the parties, they may oper- 
 with a few variations applicable especially ate as an agreement for a lease under the 
 to tolls and farms, the two descriptions of Act for amending the Law of Real Prop- 
 properly most commonly offered to be let erty (8 & 9 Vict. c. 106, 5. 3). See David- 
 by competition. Any other stipulations son's Concise Precedents, p. 63 ; see also 
 usually entered into between landlord and note {c),post 
 
 tenant may be readily introduced at the (i) Turnpike tolls are let by auction 
 
 proper places. An attempt has been made under 3 Geo. IV. c. 126. 
 
PART 11.] CONDITIONS OF LETTING BY AUCTION. 
 
 353 
 
 rates and outgoings; the same to be payable by equal payments on the 
 
 day of , &c., in every year, the first of such payments to be made 
 
 on 
 
 5. The landlord will, on the request of the highest approved bidder, execute a 
 proper lease of the premises to such highest bidder, for the term and at the rent 
 aforesaid. 
 
 6. The said lease shall contain covenants (c) on the part of the tenant for pay- 
 ment of the said net yearly rent on the days and in manner aforesaid; and for 
 payment of all existing and future taxes, rates and outgoings; and to keep the 
 premises in good and sufficient condition and repair, and so to deliver up the same 
 [with all new fixtures and other additions] at the expiration of the said term (i/). 
 
 and 
 
 {c) A stipulation that the lease shall 
 contain all usual covenants and conditions 
 generally leads to disputes as to what are 
 usual covenants and conditions. Mr. 
 Davidson, therefore, suggests the specifica- 
 tion of all the covenants and conditions 
 intended to be inserted in the lease. " But 
 even in such case," he observes, " disputes 
 may arise as to the extent and form of the 
 covenants and conditions, unless they are 
 inserted literally as they are to stand in the 
 lease." (Davidson's Concise Prec. 95.) 
 Probably the safest mode of proceeding is 
 to have an actual lease ready prepared and 
 engrossed, with blanks for the name of the 
 tenant, to be filled up and signed as soon 
 as the letting is complete. In this case, a 
 condition to the following effect might su- 
 persede several of the stipulations in the 
 text : — 
 
 " Immediately or as soon as possible 
 after the fall of the hammer, the landlord 
 and the highest approved bidder [being 
 declared such by the auctioneer] shall 
 respectively sign, seal and execute a lease 
 of the said premises to such highest bid- 
 der, for the term and at the rent aforesaid, 
 the rent to be payable as aforesaid ; which 
 lease has been prepared and engrossed, 
 with blanks for the name of the lessee, and 
 is produced at the time of the letting for 
 the inspection and perusal of the bidders, 
 who shall respectively be deemed to have 
 inspected and perused the same, and to 
 be cognizant of its contents; and such of 
 them as shall be declared to be the high- 
 est approved bidder shall be bound and 
 required to enter into the covenants and 
 conditions therein contained, as if such 
 covenants and conditions had been em- 
 bodied in, and formed a part of the pres- 
 ent conditions of letting." 
 
 {d} For a public-house it maybe neces- 
 sary to insert in the tenant's covenants the 
 following : — 
 
 " To continue the said dwelling-house 
 
 premises as an inn, ale-house and 
 public-house, licensed for the sale and 
 consumption of ale, spirits and wine; and 
 to keep and conduct the same in such 
 orderly, proper and regular manner that 
 the magistrate's licence or certificate may 
 not be taken away or be refused to be re- 
 newed; and, on the expiration of the ten- 
 ancy, to assign the residue of the existing 
 licences to the landlord, being paid for the 
 unexpired time. 
 
 "And also to take, have and purchase 
 from the said landlord, his heirs or assigns, 
 and from no other person, all the table- 
 beer, porter, ale, stout, wine, brandy, rum, 
 hollands, geneva, shrub and other spirits 
 and malt liquor, and other liquor, which 
 at any time during the said term shall be 
 received, used, sold, consumed or sent out 
 in, upon or from the said premises; and 
 to pay the fair current market price for the 
 same." 
 
 And among the landlord's covenants, 
 the following : — 
 
 " Also a covenant that the lessor shall 
 serve the tenant with such good and pala- 
 table table-beer, porter, ale &c., at such 
 and the same price, and of the same qual- 
 ity according to the price, as he usually 
 serves his other customers; and shall, 
 within ten days after notice, take back any 
 bad or unpalatable articles which may have 
 been supplied, and replace the same with 
 good and palatable articles. It being un- 
 derstood that the lessor shall not be com- 
 pelled to supply any goods to the tenant 
 after he shall have contracted a debt for 
 goods before delivered to the amount of 
 ■£ , until such sum shall be fully satis- 
 
 fied." 
 
 For a farm the following addition to the 
 tenant's covenants may be made: — 
 
 " And to cultivate, manure and manage 
 the farm and lands in a fair and proper 
 manner, according to the most approved 
 course of husbandry, and not to convert 
 
354 
 
 FORMS AND PRECEDENTS. 
 
 [part II. 
 
 The said lease shall also contain the usual power of re-entry on non-payment 
 of the rent or non-observance of the covenants, and the usual conditional cove- 
 nant on the part of the landlord for quit:t enjoyment. 
 
 7. The highest approved bidder shall duly execute and deliver to the landlord 
 a counterpart of the said lease. 
 
 8. The said lease and counterpart shall be prepared by the solicitor of the 
 landlord at the expense of the [landlord and] tenant [in equal shares]. 
 
 into arable land any land now in pasture, 
 without the consent of the landlord." 
 
 The particular mode of management is 
 sometimes stated, as in the following form 
 (see Rouse's Practical Man), which is in- 
 serted rather as a memorandum of the 
 particular points to be attended to, than 
 as a precedent : — 
 
 " The lease shall contain all the neces- 
 sary and usual covenants and conditions, 
 and particularly the following : — 
 Reservations to the lessor: — 
 Of right to cart and remove timber and 
 
 other trees ; 
 Of mines, minerals and brick-earth, with 
 right to work the same [allowing abate- 
 ment of £ rent for each quarter of 
 an acre required] ; 
 Of game, and right, for lessor and friends, 
 
 to sport ; 
 Of right to plant trees in fences; 
 Of right for lessor [and his other tenants] 
 
 to take sand from pit on the farm ; 
 With general right of entry for inspection 
 or other reasonable cause. 
 Covenants from lessee : — 
 To pay rent, rates, taxes, and tithe-compo- 
 sition or commutation rent-charge; 
 To repair, paper and paint [siaiin^ how 
 often] ; with separate covenant to repair 
 within three months after notice; 
 To provide straw for thatching, and clay 
 for daubing, and keep thatch in repair; 
 or, should lessor prefer reed, to pay half 
 expense ; 
 To insure in £ in joint names, deliv- 
 
 ering policies and receipts; with power 
 to lessor, in default, to insure and recover 
 payment as rent. Money received on 
 policies to be expended on the premises ; 
 To farm according to four-course system 
 of agriculture, i.e., one quarter summer- 
 land, with ploughings, and 
 harrowings ; one quarter barley or oats, 
 half being sown with clover or proper 
 grass seeds ; one quarter clover or grass 
 layer, and beans or peas twice hoed; 
 and one quarter wheat ; 
 To leave so farmed at determination of 
 tenancy, being allowed by valuation; 
 
 giving two days' notice of the plough- 
 ings, harrowings and sowings for which 
 he claims valuation; 
 
 To sign and deliver yearly, on , a. 
 
 schedule of cropping and farming; 
 
 To consume hay, straw, clover, stover, tur- 
 nips, carrots and beet on the premises, 
 or for each load removed forthwith lay 
 on farm two loads of good muck, under 
 penalty of £ for each load removed ; 
 but to give notice of each such transac- 
 tion ; 
 
 To stack produce on farm, and in last year 
 to let in-coming tenant have straw, chaff 
 and calder, on paying for threshing, 
 dressing and carrying to market, not ex- 
 ceeding miles ; 
 
 To consume muck on premises, except in 
 last year, when to be laid up in heaps 
 for in-coming tenant, by valuation; 
 
 To do rods of hedging and ditching 
 
 yearly, and rods of under-draining ; 
 
 To cleanse the river and marsh ditches 
 orfce in two years, or oftener if requisite ; 
 
 To protect the timber and other trees, 
 shrubs &c. from injury, under penalty 
 of £ for each timber, £ for 
 
 each other tree, stand or sapling, and 
 £ for each shrub or plant, beyond 
 
 its value ; 
 
 To plant whitethorn wherever chasms hap- 
 pen in fences ; 
 
 To reside in house, under penalty-rent of 
 £ , recoverable as other rent ; 
 
 To preserve game, and give notices, and 
 allow actions ; the lessor agreeing to in- 
 demnify ; 
 
 To keep a dog for lessor, and allow lessor 
 to keep a horse on pastures for 
 weeks, between the months of and 
 
 ,the lessee taking proper care of 
 it, without allowance; 
 
 To do days' work for lessor, with 
 
 carts and horses properly 
 
 attended, when required ; 
 
 To yield up to lessor, on request, any parts 
 of land, not exceeding , for plant- 
 
 ing on; the apportioned rent of 
 per acre to be deducted from subsequent 
 payment of rent; 
 
PART II.J CONDITIONS OF LETTING BY AUCTION. 
 
 3SS 
 
 9. Until the execution of the said lease, the said premises shall be held by the 
 highest approved bidder as tenant to the landlord, at the rent aforesaid, and sub- 
 ject to the covenants and conditions to be contained in the said lease as aforesaid, 
 so far as the rules of law will permit. 
 
 10. In case any dispute shall arise the same shall be referred to two referees 
 &c. (^See aniej Precedent /., Form lo). 
 
 11. {/) Should the highest bidder neglect or fail to comply with these condi- 
 tions, his deposit-money shall be thereupon forfeited to the landlord, who shall 
 be at full liberty [either to enforce the letting or] to re-let the premises, at such 
 time and place and in such manner as he shall think fit; and, in case of a re- 
 letting, he shall have the benefit of the increase (if any) in the rent; and the 
 deficiency (if any) for the whole term, and all costs and expenses, shall be made 
 good by the defaulter at the present auction, and be recoverable as liquidated 
 damages (/). 
 
 To provide lessor with good wheat-straw 
 in exchange for muck, and deliver and 
 take same ; 
 
 To accept bills at two months for rent, at 
 any time after it becomes due, with pro- 
 viso that the same shall not p];ejudice 
 lessor's remedies for rent till payment ; 
 
 Not to plant above with potatoes 
 
 [or other specified exhausting produce] 
 in any year, under penalty-rent at rate 
 of £^ an acre for excess, recovera- 
 
 ble as reserved rent ; 
 
 Not to sell or allow removal of sand off the 
 farm (except to lessor or his tenants), 
 under penalty of 20J. per cart-load ; 
 
 Not to break up meadows or pastures, 
 under penalty-rent at rate of £ an 
 
 acre, recoverable as reserved rent ; 
 
 Not to break up banks or borders, under 
 penalty of 2.0s. per rod ; 
 
 Not to cut down, remove, lop, top or in- 
 jure trees or woods, by nailing or insert- 
 ing gates, posts or rails, or otherwise, 
 under penalty of ;i^ a tree, and 
 
 £ a load for wood, beyond value ; 
 
 but to have power to lop, not exceeding 
 one [tenth] of pollard trees in any 
 year, on giving notice and account ; 
 
 Not to occupy another farm ; 
 
 Not to assign or under-let (except as to 
 cottages), or part with possession, with- 
 out licence ; 
 
 Not to suffer any new footpaths ; 
 
 Not to alter front or elevation of house or 
 buildings without consent, or carry on 
 any trade therein ; 
 
 Not to alter boundaries of fields. 
 
 Usual covenant from the lessor : — 
 
 For quiet enjoyment. 
 
 Provisos : — 
 For re-entry on non-payment of rent for 
 twenty-one days (although no formal 
 demand) ; on assignment or under- 
 letting; ceasing to reside; becoming 
 bankrupt or insolvent; mortgaging or 
 depositing lease; making ^signment 
 for benefit of creditors ; suffering exe- 
 cution or extent; or doing any act 
 by which the premises may be af- 
 fected ; 
 That lessor, on selling any part of prem- 
 ises may apportion rent ; 
 That receipts for rent shall not be waiver 
 of penalties, nor licence waiver of fut- 
 ure breach ; 
 And for leaving matters in dispute to 
 arbitration." 
 
 {/) The sixth and last condition on a 
 letting of tolls may be as follows ; — 
 
 " If the last bidder \or bidders] shall 
 not forthwith enter into such agreement, 
 or shall refuse to perform these conditions, 
 it shall and may be lawful to and for the 
 trustees \or commissioners] of the said 
 turnpike road to put up the said tolls 
 again immediately, or at any time after- 
 wards, and to re-let the same, as if no such 
 bidding had been made ; in which case 
 the deposit-money (if any) shall be for- 
 feited, and any deficiency on such subse- 
 quent letting shall be made good by the 
 defaulter at the present letting, and be 
 recoverable as and for liquidated dam- 
 ages. 
 
 (/) For form of contract to be used 
 in a case of this description, see post^ 
 p. 000. 
 
3Sf5 
 
 FORMS AND PRECEDENTS. 
 
 [part II. 
 
 C. CONDITIONS OF SALE OF PERSONAL PROPERTY. 
 I. Goods {a). 
 
 1. The highest bidder to be the buyfer ; and if any dispute shall arise respecting 
 any bidding, the lot in dispute to be immediately put up again. 
 
 2. No person to advance less than sixpence; above ten shillings, one shiUing; 
 above five pounds, five shillings, and so on in proportion. 
 
 3. The purchasers to give in their names and places of residence, if required, 
 and to pay down a deposit of thirty per cent, in part payment of the purchase- 
 money {V)\ in default whereof the lot or lots purchased by them may be imme- 
 diately put up again and re-sold. 
 
 4. The lots to be taken away with all faults (<:), at the buyer's expense, within 
 two days after the sale (^), and the remainder of the purchase-money to be paid 
 on or before delivery (<?). 
 
 5. Upon failure to comply with any of the above conditions, the money depos- 
 ited in part payment shall be forfeited; and all lots uncleared within the time 
 aforesaid shall be re-sold by pubhc or private sale, and the deficiency, if any, on 
 such re-sale, together with all charges attending the same, shall be made good by 
 the defaulter at the present sale. 
 
 II. The Same. Another Form. 
 
 I. The highest bidder, if in due time, to be the purchaser; subject to the auc- 
 tioneer having a right to refuse the bidding of any person. Should any dispute 
 arise between two or more approved bidders, or between the auctioneer and any 
 
 {a) The conditions in the text are used 
 extensively at different auction-rooms in 
 London, and elsewhere, on the sale of fur- 
 niture and other eifects, when the goods 
 are exhibited on the spot. They are also 
 adapted to a pawnbroker's sale. 
 
 {b) Sometimes the followingis added : — 
 
 "And one shilhng and sixpence to the 
 auctioneer, to bind the bargain, for all lots 
 sold under £'^ ; two shillings and sixpence 
 for all lots sold at or over _^5 and under 
 ^10; five shillings for all lots sold at or 
 over £\o and under £-2£i\ and £\ $s. per 
 ccTil. for all lots sold at or above £"20. 
 
 (i.-) See ante, pp. 59, 60. 
 
 {d) See aiitc, p. 105. 
 
 {e) On a sale of books the following 
 condition is frequently used : — 
 
 " The books are presumed to be per- 
 fect, unless otherwise expressed ; but, if, 
 upon collating at the place of sale, any 
 should prove defective, the purchasers 
 will be at liberty to take or reject them ; 
 but the sale of any book or books is not 
 to be set aside on account of any stained 
 or short leaves." 
 
 Sometimes a condition to the following 
 effect is introduced : — 
 
 " In the event of any purchaser at this 
 sale neglecting to pay for and take away 
 
 any lot or lots he or she may have pur- 
 chased, and the same remaining for a lon- 
 ger period than one month from this date, 
 such purchaser, in addition to the amount 
 of the purchase-money, shall, upon each 
 lot so left, pay one shilling per week for 
 warehouse-room, and also five per cent, 
 per annum interest on the amount of the 
 said purchase-money; the same to be 
 reckoned from this day to the time of 
 clearing." 
 
 Or, more simply : — 
 
 " Warehouse-room and expenses of 
 removal will be charged on all lots left 
 uncleared after the time specified, until 
 such lots are taken away or re-sold " (See 
 also next precedent, Form 5). 
 
 Where by the terms of the contract 
 goods were to be taken away at the pur- 
 chaser's expense in fourteen days from the 
 day of the sale, and the purchase-money 
 was to be paid on or before the delivery 
 of the goods, it was held that the seller 
 was bound to deliver when called upon, 
 at any time during the fourteen days, and 
 had not fourteen days to deliver the goods, 
 although the purchaser had fourteen days 
 to take them away : Hagedorn v. Laing, 
 6 Taunt. 162 ; i Marsh. 514. 
 
PART II. J CONDITIONS OF SALE OF CHATTELS. 357 
 
 approved bidder, the lot in dispute to be put up again, or not, at the discretion of 
 the auctioneer. The vendors reserve the right to bid, 
 
 2. No person to advance less than is. at each bidding; above five pounds 5^. ; 
 and so on in proportion; nor to retract a bidding. 
 
 3. The purchasers are to pay down immediately a deposit of five shillings in the 
 pound, or such other sum as the auctioneer may namej in part payment (each 
 deposit to be applicable to any lot or all lots purchased), and to give in their 
 names and places of abode, when required; in default of which the lot or lots 
 purchased by them to be at the disposal of the auctioneer. 
 
 4. All lots to be taken away with all faults, imperfections and errors of description, 
 at the purchaser's expense and risk, before 4 o'clock on , and the remain- 
 der of the purchase-money to be paid before delivery. In cases where one buyer 
 purchases more than one lot, the whole of the amount of the lots purchased is 
 to be paid before any one lot is delivered; also, to prevent inaccuracy in delivery, 
 and inconvenience in the settlement of purchases, no lot can on any account be 
 removed during the time of sale ; and no person shall be entitled to anything not 
 described in his lots. No allowance whatsoever will be made for errors in descrip- 
 tion or quantity ; but the lots are to be cleared as shown at the sale ; and no lots 
 will be transferred from one buyer to another. 
 
 5. All lots left after the specified time will be liable to any expenses that may 
 arise from their not having been cleared in accordance with the fourth condition. 
 
 6. The purchasers to be answerable for all damage they may do to any lots, 
 or to the premises, in taking down or removing their respective lots, and to prop- 
 erly repair the same before their lots are removed from the premises. 
 
 7. Upon failure to comply with the above conditions, the money deposited 
 shall be forfeited; the lots uncleared within the time aforesaid shall be re-sold, 
 either by public sale or private contract, and the deficiency, if any, upon such 
 second sale, together with all charges attending the same, shall be made good by 
 the defaulter or defaulters at the present sale, and be recoverable as and for 
 liquidated damages; but any surplus that may arise therefrom shall belong solely 
 to the vendors. 
 
 8. The auctioneer to be the sole arbitrator in every matter of dispute. 
 
 III. Conditions of Sale of a Ship. 
 
 The owners of the ship or vessel called the I., of , of the measurement 
 
 of tons, or thereabouts, now lying at S., cause her to be exposed to sale 
 
 on the conditions following, viz. : — the owners do consent and agree that whoso- 
 ever bids most and last in due time, after he has declared his name and the broker 
 has repeated the same, shall be deemed the buyer, who is immediately to pay on 
 account one-fourth part of the purchase-money, and the residue within one month 
 after the sale, or at the time of delivery of the bill of sale, whichever may first 
 happen, and two guineas to the broker to bind the bargain. On payment of the 
 whole purchase-money, a legal bill of sale shall be made out to the purchaser at 
 his expense, and the vessel, with what belongs to her, shall be delivered according 
 to the inventory which has been exposed; but the said inventory shall be made 
 good as to quantity only. The vessel and stores shall be taken with all faults, in 
 the condition they now lie, without any allowance for weights, lengths, qualities, 
 or any defects whatsoever. 
 
 In case any default shall be made by the purchaser or purchasers in the pay- 
 ment afore-mentioned, the money paid in part shall be forfeited to the sole use 
 of the present owners, and they shall be at liberty to put up and sell the said 
 
3S8 FORMS AND PRECEDENTS. [PART II. 
 
 vessel again; and the buyer or buyers so neglecting shall be liable for all loss, 
 costs and damages which may accrue thereby. 
 
 The said ship is declared to be at the risk of the purchaser, immediately after 
 the sale. The said vessel is put up at ^^ ; bidders to advance not less 
 
 than £ at each bidding. If any difference shall arise at the sale, the 
 
 said vessel may be put up again. 
 
 IV. Messrs. Tattersall's Conditions of Sales of Horses and Carriages. 
 
 Albert Gate, Hyde Park, October 23rd, 1780. 
 Conditions of Every Sale by Auction and Private Contract at this Place. 
 
 1. The highest bidder to be the buyer; anc^ if any dispute arise between any 
 two or more bidders, the lot so disputed shall be immediately put up again and 
 re-sold. 
 
 2. No person to advance less than five shillings; above ten pounds, ten shil- 
 lings, and so on in proportion. 
 
 3. The purchasers to give in their names and places of abode (if required) and 
 to pay down live sliillings in the pound (if required) as earnest, and in part of 
 payment; in default of which, the lot so purchased may be immediately put up 
 again and re-sold, if the auctioneer shall think fit. 
 
 4. The lots to be talcen away within one day after the sale is ended, at the 
 buyer's expense, and the remainder of the purchase-money to be absolutely paid 
 before the delivery of the lot. 
 
 5. Upon failure of complying with the above conditions, the money deposited 
 in part of payment shall be forfeited to the owner of the lot, he paying thereout 
 all just expenses, and the lot shall be re-sold by public or private sale, and the 
 deficiency (if any) attending such re-sale shall be immediately made good by the 
 defaulter at this sale. 
 
 6. If any person shall purchase a lot and not pay for it within the time limited 
 by the fourth condition, nothing contained in the fifth condition shall prevent the 
 auctioneer, or owner of the lot, from compelling the purchaser to pay for it, if 
 the auctioneer or seller shall so think fit. 
 
 7. The vendor shall be entitled to receive the purchase-money of each lot not 
 warranted on the third day from the sale day; and all horses sold with a warranty 
 of any description on Monday will be paid for on Friday ; and all horses sold 
 with a M'arranty of any description on Thursday will be paid for on Tuesday ; 
 pro\idcd that the auctioneer shall then have received the purchase-money, or 
 delivered the lot out of his custody, but not before. 
 
 8. The purchaser of any lot warranted in any way and not answering the war- 
 ranty given, must return the same on or before the evening of the second day 
 from the sale ; otherwise the purchaser shall be obliged to keep the lot with all 
 faults. 
 
 9. All horses, carriages, &c., brought to this repository for sale, and sold, or 
 advertised to be sold, by private contract, either by Messrs. Tattersall, the owner, 
 or any one acting as agent for the owner of such horses, carriages, &c., shall pay 
 the usual commission; and no person shall take away his horses, carriages, &c., 
 until the commission, keep and other expenses are paid, whether the same have 
 been sold by public auction or private contract, &c., or are not sold. 
 
 10. All horses, carriages, &c., advertised by Messrs. Tattersall (though not 
 upon the premises at the time of sale, either by private contract or public auction) 
 shall pay the usual commission. 
 
PART II.] CONDITIONS OF SALE OF CHATTELS. 359 
 
 Lastly. The conditions are : 
 
 If sold by public auction, one shilling in the pound; 
 If by private contract, one shilling in the pound; and 
 If not sold, 2} per cent, on the reserve price up to 200 guineas. 
 No lot will be offered for less than five shillings. 
 
 The days of payment are, for unwarranted horses sold on Mondays, Wednes- 
 days; for warranted horses, Fridays only, between the hours of ten and four o'clock. 
 N.B. — No money paid without a written order. 
 
 V. Conditions of Sale used at Aldridge's Horse and Carriage 
 Repository. 
 
 1. The highest bidder to be the buyer, and if any dispute arise between two 
 or more bidders respecting any lot, before the same is returned into the stable or 
 place of such lot, it may be immediately put up again for sale, or the auctioneer 
 may declare which bidder he thinks proper to be the purchaser. 
 
 2. No person to advance less than five shillings above one pound; ten shillings 
 and sixpence above ten pounds; and one guinea after twenty guineas, and so on 
 in proportion. 
 
 3. Buyers are to state their names and places of abode, and pay a deposit of 
 25 per cent, on each lot at the time of purchase, and the remainder of the pur- 
 chase-money on the day of sale and before delivery of the lot ; and in case of 
 non-payment the seller may either rescind the contract, in which case the deposit 
 will be forfeited, or re-sell the lot by public auction on the buyer's behalf with or 
 without notice to him, in which case the buyer will be liable to pay to the seller 
 the difference (if any) between the sum agreed to be paid by him for the lot and 
 the amount realized by such re-sale; also the commission on the re-sale, the keep 
 of the lot, and all other charges whatever, deducting the deposit. 
 
 4. Any horse sold at this establishment with a warranty must, in case the buyer 
 contend that it does not correspond with such warranty, be returned before five 
 o'clock, p.m., on the second day after the sale (Sunday excluded) ; otherwise it 
 shall be deemed and taken to be in all respects as warranted, as between all per- 
 sons, and the non-return within the time limited shall be a bar to any claim on 
 account of any breach of warranty, and the buyer shall be bound to keep and 
 pay for the horse, whether it be or be not according to the warranty. 
 
 5. Should a horse warranted quiet in harness, or to ride, be so returned, it 
 shall be tried by an impartial person, to be named by the proprietors of this estab- 
 lishment, whose decision shall be final and conclusive upon all persons; and a fee 
 of ten shillings for the trial shall be paid by the party in error. 
 
 6. Should any horse, sold here, warranted to ride or draw, be considered by 
 the buyer to be incapable of working, from any infirmity or disease, it may be 
 returned here before five o'clock on the second day after the sale, with a certifi- 
 cate from a veterinary surgeon to that effect; if not so returned with such certificate, 
 it shall be taken not to have been returned within the meaning of the fourth con- 
 dition; and if such certificate be not confirmed by another, to be furnished by the 
 vendor within two days, or in case the vendor shall neglect or refuse to furnish 
 such certificate, the auctioneer shall immediately appoint a veterinary surgeon, 
 whose decision shall be final and binding, and the whole expense must be paid by 
 the party in error. 
 
 7. No horse considered to be affected with glanders, mange or other infectious 
 or contagious disorder must, under any circumstances, be returned in accordance 
 with the fourth condition; but in lieu of such return a notice in writing of the 
 
360 FORMS AND PRECEDENTS. [PART 11. 
 
 fact of the horse being so affected, and of the place where it stands, must be given 
 at this estabhshment within the time mentioned in that condition, accompanied 
 with the certificate of a veterinary surgeon that the horse is so affected; and in 
 case of omission to give such notice, accompanied by such certificate, within such 
 time, the said horse shall be deemed and taken to be, as between all persons, not 
 affected by any such disorder, and such omission shall be a bar to any claim on 
 account of the said horse being so affected, and the buyer shall be bound to keep 
 and pay for the same whether it be or be not so affected. 
 
 8. If such notice fium the buyer, accompanied by such certificate, be given, 
 the vendor will immediately be required to procure a certificate from his veteri- 
 nary surgeon; and in case of non-agreement of these two opinions, or in case the 
 vendor neglect or refuse to furnish such certificate within two days after his re- 
 ceiving the notice, then the auctioneer shall appoint a veterinary surgeon, whose 
 decision shall be final and binding upon all parties, and all expenses must be paid 
 by the party in error. 
 
 9. The seller shall in no case be entitled to receive payment of any money 
 before it has been received from the buyer; but if received, he shall be entitled to 
 the net proceeds, of the property sold at the Wednesday's sale, on the following 
 Monday, and on property sold on Saturdays, on the following Thursday, between 
 ten and four o'clock. 
 
 10. A right is reserved to the vendor of any horse, carriage, or other property 
 sent to or left at this establishment, to bid by or through the auctioneer; and un- 
 less such property is protected by a written reserve, it shall be considered to have 
 been so sent or left for the purpose of sale by auction, and may be sold by public 
 auction, without reserve, at the next sale day after it shall have been so sent in; 
 or if any horse, carriage, or other property, protected by a written reserve, be not 
 sold or removed within one month from the date of such reserve, the same may be 
 sold by public auction \^'ithout reserve, at the next sale day, with or \\ithout notice 
 to the owner, who may receive the net proceeds of such sale on either of the days 
 as above. 
 
 11. Five shillings is charged on each horse, five shillings on each carriage, two 
 shillings and sixpence on harness or saddle and bridle, and ten shillings on each 
 dog entered on the books for sale, whether the lot or lots be put up or not; and 
 the commission on all sales is five per ceni.^ except for dogs, which is ten per cent, ; 
 and shall apply to any lot returned as not answering «'arranty. 
 
 3^. dd. is charged for the keep of each horse per day and night ; 6;/. for 
 
 ostlers; and, if sold, \s. bd. for halter. 
 ^s. is cliarged per week for the standing of four-wheel carriages; and 3.?. per 
 
 week for the standing of two-wheel carriages; and i.r. for \\'ashing. 
 
 12. The above conditions apply to all horses, carriages, &c., brought to this 
 repository for sale, \\hether they be sold by auction, or privately by the owner, or 
 by any person employed by him. 
 
 13. No horses, carriages, &c., shall be taken away until all expenses are paid. 
 Lastly. The name, description and address given by the vendor will in all 
 
 cases be furnished to a purchaser, if requested; and in case of dispute the remedy 
 of the buyer shall be against such vendor only, and in no case or under any cir- 
 cumstances against the auctioneer or proprietors of this establishment, who are to 
 be regarded to all intents and purposes as agents for a disclosed principad. 
 
 VI. Conditions of Sale of Stocks and Shares. 
 
 I. The highest bidder shall be the purchaser; and if any dispute arise as to 
 any bidding, the lot in dispute shall be put up again, or the auctioneer may decide 
 the dispute. 
 
PART II.J CONDITIONS OF SALE OF SHARES, ETC. 
 
 361 
 
 2. No person shall advance at any bidding a less sum than shall be named by 
 the auctioneer at the time of sale; and no bidding shall be retracted. The ven- 
 dor reserves to himself the right to fix a reserve price, and to bid up to that sum 
 by himself or his agent. 
 
 3. Each purchaser shall immediately after the sale pay into the auctioneer's 
 hands a deposit of ^10 per cent, in part payment of his or her purchase-money, 
 and sign an agreement for payment of the remainder at the offices of the auction- 
 eers, , , on the day of , when and where the purchases 
 are to be completed; and if from any cause whatever any purchase shall not be 
 completed on that day, the purchaser shall pay to the vendor interest after the 
 rate of ^10 per cent, per annum on the remainder of the purchase-money from 
 that day until the actual completion of the purchase. 
 
 4. The title to the shares shall consist solely of certificates of the respective 
 companies, showing such shares to have been registered in the names of the own- 
 ers, who will, at the expense of the purchaser, assign the said shares to him, or 
 otherwise cause the same to be vested in him. 
 
 5. If any lot shall appear to have been improperly described, or any other error 
 or misstatement be found in the particulars, such misdescription, error or misstate- 
 ment shall not vitiate the sale, but the vendor or purchaser, as the case may be, 
 shall allow or pay a compensation in proportion to the amount of the purchase- 
 money, the amount of such compensation to be determined by the auctioneer. 
 
 6. The auctioneer acts upon the sale only as agent for the vendor, whose name 
 he will disclose at the sale. He will not guarantee any transfer or registration, or 
 any other formality or other matter. 
 
 7. If any of the purchasers fail to comply with any of the above conditions, the 
 deposit-money paid by him or her shall be absolutely forfeited to the vendors, 
 who shall be at full liberty to re-sell the property sold to such purchaser or pur- 
 chasere, either by public or private sale; and the deficiency, if any, arising from 
 such second sale, together with all expenses attending the same, shall be made 
 good by the defaulter or defaulters at the present sale, and be recoverable as 
 liquidated damages, and it shall not be requisite for the vendors previously to 
 tender any assignment or transfer to such purchaser or purchasers. 
 
 Memorandu.m. — We, the undersigned, hereby acknowledge that at the sale 
 by auction made this day of the property comprised in the above particulars we 
 became the purchasers of the lots, in the schedule hereunder written, against 
 which we have signed our names, at the prices therein stated, and have paid the 
 deposits therein mentioned; and we hereby agree to complete the said purchase 
 agreeably to the annexed conditions. 
 
 Schedule. 
 
 Lots. 
 
 Purchase- 
 money. 
 
 Deposit Paid. 
 
 Purchaser's 
 Signature. 
 
 Purchaser's 
 Address. 
 
 
 
 
 
 
 On behalf of the vendor we hereby confirm the above sale. 
 
 \_Auciioneers' signature.'] 
 [Bate.'] 
 
362 
 
 FORMS AND PRECEDENTS. 
 
 [part ir. 
 
 VII. Conditions of Sale of a Policy of Insurance, a Life or Reversionary 
 
 Interest in Personalty, &c. (/). 
 
 1-4. [The same as in Precedent I., i7f!/<.\ p. 339.] 
 
 5. The vendor shall, withm [fourteen] days from the day of sale, deliver to the 
 purchaser or his solicitor an abstract of his title to the property (^'■). 
 
 6. [See a/i/^, p. 340, Clause 7.] 
 
 7. [See iin/c, p. 340, Clause 8.] 
 
 8. [See an/c, p. 340, Clause 10.] (//). 
 
 9. If any 'error, &c. [See tr/i/c, p. 341, Clause 12.] 
 
 10. If the purchaser shall fail, &c. [See an/c', p. 341, Clause 13. j 
 
 [_J/c-morani/um.'\ 
 
 (/) Although it has been found con- 
 venient to class these matters under one 
 head, it is hardly likely that the same set 
 of conditions will exactly apply to all of 
 them. Much depends upon the nature of 
 the property and the circumstances of the 
 title. When the property passes by deed, 
 the conditions will not vary materially from 
 those already given for a sale of a freehold 
 or leasehold estate. When it is transfer- 
 able by the handing over of scrip or other 
 indicia of property, or by simple indorse- 
 ment or registration, the conditions assume 
 more the character of those used on the 
 sale of goods, and thr stipulations respect- 
 ing the delivery of an abstract, &c., should 
 in such cases be omitted. 
 
 On the sale of a policy of insurance, if 
 the vendor is not able to prove that the 
 person on whose life the assurance is made 
 was in good state of health when the policy 
 was effected, and of the age mentioned in 
 the policy, and that nothing has been done 
 to vitiate the policy, conditions should be 
 inserted restricting the purchaser's rights 
 in these respects : Brcaley v. Collins, You. 
 317. So also, if the vendor is not prepared 
 with evidence that the person who effected 
 the assurance had an assurable interest 
 within the meaning of the statute 14 Geo. 
 III. c. 48 {i.L\, a pecuniary interest: H.lI- 
 ford c: Kymer, 10 B. <S: C. 724), in the Hfe 
 of the assured, and that such interest is 
 subsisting at the time of the sale, the want 
 of such evidence should be noticed in the 
 conditions. 
 
 On the sale of life and reversionary in- 
 terests, if legal proof cannot be had of the 
 ages of the persons interested in the prop- 
 erty, conditions restrictive of such evidence 
 should be inserted. If the property con- 
 sists of a life interest in the funds, and it is 
 intended that " the purchaser shall not be 
 
 entitled to any dividends which shall ac- 
 crue due or be payable on any day prior 
 to the actual completion of the purchase," 
 an express stipulation to that effect should 
 be inserted ; Anson v, Towgood, 1 Jac. & 
 W. 63,7. 
 
 {^) If there be any restriction as to 
 the title of the property, it should be intro- 
 duced in this place. 
 
 The following conditions are frequently 
 used on the sale of policies of insurance : ■ — 
 
 " The vendor shall not be required to 
 verify the statements in the declaration 
 made in the insurance-office on effecting 
 the policies, except that, when the age of 
 the insured has not been admitted by the 
 said office to be correct, the vendor shall 
 produce certificates of baptism, which 
 shall be deemed conclusive evidence as to 
 age. 
 
 " The purchaser shall require no further 
 evidence of the validity of the policy than 
 the solemn declaration of Mr. , the 
 
 assured, that when the policy was effected 
 he was in a good state of health [or, " he 
 had an insurable interest in the life men- 
 tioned in the policy, to the amount of 
 £ "] , and that nothing has been done, 
 within his knowledge, to vitiate the policy, 
 and the production of the receipt for the 
 premium last due." 
 
 {h) The following, or a corresponding, 
 stipulation, may be inserted next : — "Upon 
 payment of the residue of the purchase- 
 money at the time and place aforesaid the 
 purchaser shall be entitled to all advan- 
 tages accruing upon the [policy] from the 
 time of the sale. [The purchaser shall 
 pay all premiums becoming due upon the 
 policy between the time of the sale and the 
 completion of the purchase] ." Or : " The 
 death of [the vendor] before completion 
 shall not affect the validity of the contract." 
 
PART II.] CONDITIONS OF COMMERCIAL SALES. 
 
 363 
 
 VIII. Conditions of a Commercial Sale (z). 
 
 1. The highest bidder to be the purchaser; if any dispute arise it is to be de- 
 cided by a show of hands, or to be left to the decision of the selling brokers. 
 
 2. The buyers of goods at this sale are to pay all duties of customs and excise 
 which have been or may be imposed upon the same. 
 
 3. If any broker who may purchase at this sale should not declare his princi- 
 pal, within three days, in writing, he will be considered as the principal. And all 
 brokers who shall buy any goods for persons residing in the country or abroad 
 shall, at the same time they declare their principals, produce their orders for the 
 same, together with an undertaking from a resident known agent" in London to 
 make good the contract. Should any broker neglect to declare his principal in 
 manner above mentioned, or should he buy any goods for persons under age, he 
 shall be esteemed the principal, and shall himself be obliged to pay for the goods 
 so bought by him. 
 
 4. Every person, whether broker, agent or principal, who shall be declared the 
 best bidder for any lot or lots of goods at this sale, shall make such deposits 
 in money, on the , as are expressed in the catalogue, which said deposits 
 will be allowed in part payment; and the remainder of the purchase-money shall 
 be made good on delivery of the warrants, on or before the prompt day printed 
 in the catalogue, without interest or discount (/). 
 
 5. (i) The [arrowroot to be re-weighed and taken at the re-weights, the ginger 
 at the landing weights, and the other] goods to be taken at the warrant weights 
 
 (i) Commercial sales are usually held 
 by brokers who are also licensed as auc- 
 tioneers. The conditions in the text are, 
 in a great measure, founded upon those 
 formerly used by the East India Company. 
 
 (/) The following variations, as to the 
 time and m-ode of payment, are sometimes 
 adopted : — 
 
 " Payment to be made for the tapioca 
 and ginger on the , or on delivery ; 
 
 interest being allowed, at the rate of four 
 per cent, per annum, to the , with 
 
 two and a half per cent, discount. 
 
 " Payment to be made, on delivery of 
 the bills of parcels, by bills, on London, to 
 the satisfaction of the sellers, not exceed- 
 ing three months' date, to be made equal 
 to cash in four months from the day of 
 sale." 
 
 (^) Instead of this condition, sometimes 
 the following is inserted : — 
 
 " The goods to be taken with all faults 
 and defects, as they now lie ; to be re- 
 weighed within ten days, and to be at the 
 purchaser's risk from the time of weighing ; 
 and to be taken from the scale at the pur- 
 chaser's expense; and the warehouse to 
 be cleared within two months, or rent to 
 be paid for any that may remain after that 
 time." 
 
 When goods are sold on the quay, the 
 
 following is usually made one of the con- 
 ditions : — 
 
 " The goods to be taken with all faults 
 and defects, as they now lie [or, " from the 
 vessel as landed "], and to be at the pur- 
 chaser's risk from the time of passing the 
 scale; and if any remain on the quay, the 
 purchaser shall be liable for all fines or 
 other expenses in consequence of the same 
 not being removed." 
 
 When the subject of sale is cotton, it is 
 usual to substitute the following condi- 
 tion : — 
 
 " The.cotton to be weighed in the course 
 of ten days from the day of sale, with the 
 customary allowances of this port ; to be at 
 the purchaser's risk from the time of 
 weighing ; and the warehouses to be 
 cleared within ten days from the day of 
 sale, or the purchasers to pay rent for such 
 as may remain after that time." 
 
 On customs sales the following are in- 
 serted : — 
 
 " The goods to be re-weighed, re- 
 gauged or computed previously to being 
 paid for; but when put up at so much all, 
 the quantity is to be understood to be 
 more or less, though not so expressed; to 
 be taken away with all faults, and no ad- 
 vantage to be taken by the purchaser if 
 any goods are misnamed in the catalogue. 
 
364 FORMS AND PRECEDENTS. [pART II. 
 
 and tares, with customary allowances, as they now lie in the warehouses mentioned 
 in the catalogue, where they may be inspected [by obtaining an order for that 
 purpose from the selling Ijrokers], and where they will be at the risk of the sellers 
 until the prompt day (/), a delivery of the warrants [or orders of delivery] or the 
 day of payment, whichever may first happen. [Objection as to quality or descrip- 
 tion ^^■ill not be entertained, unless made within fourteen days from the time of 
 sale (/«).] 
 
 6. Lot money as customary. ■ — Rent chargeable to the buyers after the prompt 
 day. 
 
 7. In the event of any non-fulfilment of these conditions, the goods may be re- 
 sold immediately, either by public or private sale, at the option of the selling 
 brokers; and all losses, charges, interest of money, or any other expenses what- 
 ever, that may accrue, shall be made good by the purchaser at this sale (k). 
 
 IX. Conditions of Sale used at the Baltic (Fallen Timber) Sale-room. 
 
 1. The highest bidder (in due time) to be deemed the purchaser, and in case 
 of any dispute the lot to be put up again. 
 
 2. The buyers to declare their names and residences, and deposit 10 Jter cent. 
 on the computed value of each lot, if required; the remainder of, or all, the pur- 
 chase-money, with one shilling per lot for lot money, payable to the brokers at 
 the time an order for delivery is given. 
 
 3. The goods to be paid for on or before the prompt of fourteen days, either 
 in money, deducting six months' discount at the rate of five per cent, per annum 
 (or the Bank of England rate on the day uf sale, if above five per cent, per 
 annuin), or by such bills as the sellers may approve of, due at or within six 
 months from the day of sale. 
 
 4. The goods to be received as and where they lie, at the buyers' expense, 
 with all faults and defects, and without any allowance for error in description — ■ 
 the timber and logs according to the razed contents, and other goods as they may 
 rise from the piles — the dimensions, when given, being according to the dock 
 returns, and the quality, when given, according to the shippers' assortment or 
 designation, unless otherwise specially described. — Any rent incurred after four 
 weeks to be paid by the buyers of the respective lots. 
 
 "The goods shall not, after sale, be prompt day. The buyers shall be at 
 
 opened with a view to buying and selling, liberty to have the packages opened at 
 
 nor shall any lot be delivered in part, their own charge, previously to the prompt 
 
 whether for home consumption or for day ; and if any goods be damaged (un- 
 
 exportation." less as described in the catalogue) or anv 
 
 The following clause was formerly used pieces be wanting, the buyers shall have 
 
 at the East India Company's sales : — and accept such allowance as two or more 
 
 "In all cases where the goods have brokers shall deem reasonable; but no 
 
 been exposed to view, so as to afford allowance on any pretence whatever shall 
 
 opportunity for purchasers to exercise be made on any goods bought at this sale, 
 
 their own judginent, no allowance what- after the same have been taken away." 
 
 ever will be made." («) If the price of any of the lots be 
 
 (/) By the prompt day is understood ^10 or upwards, the sale comes within the 
 
 the day for payment on sales of goods not Statute of Frauds and requires for the 
 
 payable by bills, which varies in different completion of the contract a delivery, part 
 
 trades. payment or memorandum in writing. 
 
 (m) Sometimes it is said:— The usual mode of completing a commer- 
 
 " No allowance will be made upon any cial sale is by an entry in the " broker's 
 
 goods, by reason of damage or otherwise, book" and the deUvery of "bought and 
 
 that shall remain in the warehouse after sold notes." 
 
PART II.] CONDITIONS OF COMMERCIAL SALES. 365 
 
 5. Fourteen days from the date of the issue of the delivery order will be allowed 
 for rent and cash payment on any lot that may not be ready for delivery on or 
 within the prompt. 
 
 6. In default of compliance with the above conditions, the deposit-money, if 
 any received, to be forfeited to the owners of the goods, and the purchasers liable 
 to them for all loss and charges attendant upon a re-sale, either by private con- 
 tract or public auction. 
 
 7. All goods sold at this sale to be at the risk of the sellers in respect of fire 
 until the expiration of the prompt ; in the event of non-delivery by loss from fire, 
 the contract for such portion to be void, and the deposit, if any paid, to be returned. 
 
 X. Conditions of Sale in Use at the Wool Exchange. 
 
 1. The highest bidder to be the purchaser ; and if any dispute arise between 
 the bidders for any lot, it shall be decided by the broker, unless one of the claim- 
 ants will advance. In that case the lot shall be put up again. 
 
 2. The goods to be weighed off by the warehouse- keepers, and taken away by 
 the buyers at their own expense within fourteen days, with all faults and defects 
 of whatever kind (including defect or error of description). One invoice to be 
 rendered to each buyer for the whole amount of his purchases in this day's sale, 
 and delivery to be given not later than the seventh day after the day of sale, upon 
 payment of the invoice in full, or, if the same be not then ready, of an estimated 
 equivalent sum in cash or Bank of England notes without discount. 
 
 3. The goods to be free of rent and at the risk of the vendors from fire, without 
 reference to any payment that may have been made by the buyer to the brokers, 
 until 6 o'clock p.m. of the third day from the expiration of the prompt, unless 
 delivered from the warehouses or transferred for re-housing in the books of the 
 warehouse-keepers. 
 
 4. The buyers to pay the broker one shilling per lot, and to deposit £2^ per 
 cent, (if required) at any time during or after the sale. 
 
 5. And if any lot or lots remain uncleared after the expiration of the said four- 
 teen days, the before-mentioned deposit to be absolutely forfeited, and the buyer 
 be further subject to all loss and charges that may accrue on the re-sale thereof, 
 which it shall be at the option of the broker to effect either by public sale or pri- 
 vate contract. 
 
 XI. Conditions of Sale employed in the Wholesale Tea-trade. 
 
 1 . The highest bidder to be the purchaser, and any dispute that may arise to 
 be settled by the selling broker. 
 
 2. Brokers to declare, in ivriting, their principals, within two days after pur- 
 chase, or be held responsible; and those who may execute orders at this sale for 
 parties not resident in London, shall produce a known agent here, who shall un- 
 dertake to complete the contract; in failure of which the broker so buying shall 
 be held responsible ; and if any broker shall purchase for any person or persons 
 under age, he shall be held responsible. In the case of teas sold for cash, the 
 buying broker to be held responsible. 
 
 3. The buyer to pay the following deposit, namely, £\ per chest, at the time 
 of sale, if demanded, or on the Saturday following the day of sale, or on the de- 
 livery of the weight notes; and the remainder of the purchase-money to be paid 
 on or before . Interest at the rate of £'^ per cent, per annum will be 
 
366 FORMS AND PRECEDENTS. [PART II. 
 
 allowed on paj'ment of the deposit, and on the remainder from the day of pay- 
 ment to the prompt day. 
 
 4. The weight notes to be ready for delivery within seven working days from 
 the date of sale, or the buyer to have the option of refusing to accept such lot or 
 lots for which he cannot obtain the weight notes, upon giving a declaration to 
 that effect to the selling broker at the expiration of the said seven days. Missing 
 packages, if not more than 5 per cent,, are exempted from this condition, and are 
 to be taken by the buyer at the original price and prompt, if tendered within four- 
 teen working days from date of contract. 
 
 5. No allowance will be made on account of any damage, rubbish, false pack- 
 age or unequal goodness found or alleged to be found, after the goods have been 
 taken from the warehouses. 
 
 6. All teas sold at this sale to be at the risk of the sellers until the prompt day, 
 unless paid for previously, but only to the extent of market value. In the event 
 of non-delivery by loss from lire, the contract for such portion to be void, and the 
 deposit paid to be returned. Rent to commence from the prompt day. 
 
 7. Lot money to the selling l^roker as usual. 
 
 8. If any buyer shall fail to comply with the above conditions, the vendors 
 shall be at liberty to re-sell the teas, either by public or private sale, the deficiency, 
 if any, with interest of money, from the prompt day, warehouse rent and all other 
 charges and damages of every kind, to be chargeable to such defaulter and be 
 recoverable against him at law. 
 
 V. RESERVED BIDDINGS. 
 
 I, A. B., owner of the estate, intended to be put up to sale by auction 
 
 by at on , appoint C. D. to bid at such sale for my use 
 
 and behoof, up to the reserved price of £ 
 
 Dated this day of , 18 . 
 
 A. B. 
 
 I, the above-named C. D., consent to bid at the above-mentioned sale for the 
 use and behoof of the above-named A. B., according to the above appointment. 
 
 Dated this day of , 18 . 
 
 CD. 
 
 VI. AGREEMENTS {a). 
 
 1. 
 
 Memorandum. — At the sale by auction held this day of , 
 
 18 , of the property described in the above particulars, , of , 
 
 was declared the purchaser of the said property, subject to the above conditions, 
 
 (a) Auctioneers must be careful lest the spot, of conveyances prepared before- 
 
 they incur penalties under the Stamp Act, hand, with blanks for the names of the 
 
 1870. As to stamps, see ante, pp. 166, purchasers. In such a case, an oppor- 
 
 et seq._ When an estate is sold in small tunity of previously perusing the proposed 
 
 lots, the expense of purchase-agreements form of conveyance should be afforded to 
 
 and the risk of litigation attendant upon intending bidders, 
 them may be saved by the execution, on 
 
PART II.] AGREEMENTS. ■1^6'J 
 
 at the price of £ ; and he has paid the sum of ;,;^ , as a deposit 
 
 and in part payment of the purchase-money, to , on behalf of ^ 
 
 the vendor; and he hereby agrees to complete the purchase in accordance with 
 the said conditions ; and the said acknowledges the receipt of the said 
 
 deposit, and, as agent for the vendor, confirms the sale. 
 
 \_Purchaser' s signature.'} 
 
 \_Auctioneer's {or vendor's solicitor's) signature, adding for the vendor (i5).] 
 
 £ s. d. 
 
 Purchase-money ...... .... 
 
 Deposit ............. 
 
 Balance .........£ 
 
 Memorandum. — At the sale by auction this day of the property comprised in 
 the within particulars , of , was the highest bidder for, and was de- 
 
 clared the purchaser of, the said property, subject to the within conditions, at the 
 price of ;^ ; and he has paid the sum of ^ , as a deposit and in part 
 
 payment of the purchase-money, to , on behalf of , the vendor; 
 
 and he and the said vendor agree to complete the purchase and sale in all respects 
 in accordance with the said conditions. 
 
 Dated this day of , l8 . 
 
 \_Signatures.'\ 
 
 £ s. d. 
 
 Purchase-money 
 Deposit . 
 
 Balance ...... ■ £ 
 
 3- 
 
 Memorandum. 
 
 I, , of , hereby acknowledge that I have this day purchased 
 
 the property described in the above [or within] particulars, subject to the above 
 \or within] conditions, at the price of ;,f , and have paid to the sum 
 
 of ;^ , by way of deposit and in part payment of the purchase-money; and 
 
 I hereby agree to complete the purchase in accordance with the said conditions. 
 
 As witness my hand this day of , i8 . 
 
 \_Purchaser's signature!} 
 
 £ - 'I- 
 
 Purchase-money ........ . . 
 
 Deposit paid ............ 
 
 Balance due ........ £ 
 
 As agents for the vendor, we ratify the sale; and, as auctioneers, we acknowl- 
 edge the receipt of the deposit. " 
 
 [Auctioneers' signature.} 
 
 {i) Two copies will be signed, one to be kept by each party, 
 
368 FORMS AND PRECEDENTS. [pART 11. 
 
 4. On a Letting by Auction (c). 
 
 Memorandum that of , &c., is declared the highest bidder 
 
 for, and renter of, the premises described in the above [or within] particulars, at 
 the annual rent of ^ , at which rent of , the landlord of the 
 
 said premises, agrees to let the same to the said , according to the above 
 
 [or nithin] conditions; and the said agrees to take the said premises at 
 
 the said rent, according to the said conditions, which, on his part, he agrees to 
 perform. 
 
 Dated this day of ,18 . 
 
 5. On Sale by Private Contract, Subject to Conditions Prepared for an 
 Auction-Sale {d). 
 
 Be it remembered that , of , &c., hereby agrees to sell, and 
 
 of , iS:c., to purchase, the property comprised in [lot 
 
 of] the above l_or within] written particulai'S, at the price of £ , subject 
 
 to the above {_or within] ^\Titten conditions, so far as the same are applicable to a 
 sale by private contract [and to the said lot]; and that the said [_ piiri:Aaser'] has 
 paid into the hands of the said {_venJor] the sum ol £ , by way of deposit, 
 
 and in part payment of the purchase-money. 
 
 Dated this day of , 18 . 
 
 6. 
 
 Memorandum of an agreement made this day of , 18 , be- 
 
 tween , of , Szc. (hereinafter described as the vendor), of the one 
 
 part, and , of , lic". (hereinafter described as the purchaser), of 
 
 the other part. 
 
 1. ((?) The vendor agrees to sell, and the purchaser to purchase, the [pai-cehl, 
 at or for the sum of ;^ . , and under and subject to the terms and conditions 
 hereinafter expressed. 
 
 2. At or immediately after the execution hereof, the purchaser shall pay to the 
 vendor a deposit of £ pel- cent, on the amount, and in part payment, of 
 the purchase-money. 
 
 [ Continue with so much of the conditions as is applicable to a sale by private 
 contract^ 
 
 As witness their hands. 
 
 \_Signatures^ 
 
 7- 
 
 Memorandum of Agreement made this day of , iS , be- 
 
 tween A. v., of , &c. (hereinafter called the vendor), of the one part, and 
 
 B. P., of , &c. (hereinafter called the purchaser), of the other part. 
 
 (c) To be annexed to or endorsed on («) In preparing a lengthy agreement 
 the particulars and conditions. it will generally be found convenient to 
 
 (d) To be annexed to or endorsed on number the clauses, 
 the particulars and conditions prepared 
 
 for the sale by auction. 
 
PART II.J AGREEMENTS. 369 
 
 I. The vendor agrees to sell, and the purchaser to purchase, at the sum of 
 £ [and at the valuation hereinafter provided forj, to be paid as follows 
 
 (^Slaie terms of payment) : 
 
 ^. All (^Describe property sold, stating shortly the property, its tenure, situation, 
 extent, occupation, term of tenancy, if let, and any incidental rights'). 
 
 3. Subject to the land-tax, now £ , the sewers-rate for the level of 
 
 , the fines, heriots and quit-rents, the latter amounting to , in 
 
 respect of the copyhold parts thereof, free rents, amounting to , and also 
 
 l_other charges'], but free from any other charges or incumbrances. 
 
 4. An abstract of the title shall at the expense of the vendor be delivered to 
 the purchaser within days from the date hereof. The title shall commence 
 with an indenture dated and made between , being a conveyance 
 on a sale. 
 
 5. The vendor shall not be bound to show any further title to any parts of the 
 property which may have been heretofore glebe, and sold to redeem land-tax, than 
 the conveyance thereof; nor to any parts formerly waste than the grant thereof 
 by the lord of the manor ; nor to any parts allotted undet an inclosure act than 
 the copy award ; nor to show the lord's title to any parts formerly copyhold, and 
 enfranchised (and as to any parts enfranchised under the Copyhold Acts, the 
 same shall be deemed sold subject to the reservations of mines and minerals given 
 by those acts) ; nor as to commonable rights or rights of way further than by a 
 statutory declaration of user for years ; and all recitals and statements 
 contained in any deed, will or other document dated twenty years or upwards be- 
 fore the date hereof shall be deemed conclusive evidence of the facts and matters 
 therein recited and stated (/). 
 
 6. All objections to and requisitions on the title shall be delivered to the ven- 
 dor or his solicitor within days after the delivery of the abstract, and all 
 objections or requisitions not so delivered shall be deemed waived, notwithstand- 
 ing any subsequent correspondence thereon. 
 
 7. If any objection or requisition shall be insisted upon which the vendor shall 
 be unable or unwilling to remove or comply with, the vendor shall be at liberty at 
 any time, and although he may have endeavoured to remove or comply with such 
 objection or requisition, to annul the sale, and, on receiving the abstract of title, 
 he will then return to the purchaser the part of the purchase-money paid by him 
 [with interest thereon at the rate of 4 per cent, per annum], and the sum of 
 £ towards his expenses in the investigation of the title or otherwise; and 
 this contract shall thereupon be void to all intents and purposes. 
 
 8. The purchaser shall take and pay for by valuation the fixtures specified in 
 the inventory hereto annexed, the timber and other trees, down to and including 
 those of the value of i.;., and the matters and things usually taken and paid for 
 between incoming and outgoing tenants; and shall allow the year's corn and crops 
 to be laid in the barns and stacked on the premises, and pay for threshing, and 
 dressing and getting in the stacks, and carrying the corn to the place of delivery 
 on sale, not exceeding the distance of, iSrc, and have the straw, chaff and colder 
 arising therefrom, the vendor \_or the present occupier] appointing the threshers, 
 and having the use of the barns and barnyards up to, &c., for that purpose. 
 
 9. The vendor shall bear all outgoings [and keep the house and buildings 
 insured in the sum of ;^ ] and be entitled to the rents and profits up to, &c., 
 when the purchase is to be completed; and from and after that date the purchaser 
 shall be entitled to the rents and profits ; and on payment of the [remainder of 
 
 (/) If the expense of proving the title is to be borne equally by the parties, a 
 clause to that effect should follow here. 
 
370 FORMS AND PRECEDENTS. [PART II. 
 
 the] purchase-money and the valuation-moneys under this agreement, the vendor 
 shall execute to the purchaser an assurance of the property, such assurance to be 
 prepared by and at the expense of the puichaser, and to be left by him for execu- 
 tion at not less than days before the said day of 
 
 lo. In case default shall be made in such payment, from whatever cause 
 arising, the purchaser shall from the said day of next, as to the 
 
 purchase-money, and from the date of the valuation, as to the valuation-money, 
 pay interest at the rate of, S:c. (^), until the completion of the purchase and pay- 
 ment of the purchase and valuation-moneys. 
 
 II (Ji). The title-deeds relating to the property of the vendor not comprised 
 within the present sale shall be retained by him, and (;) an acknowledgment of 
 the purchaser's right to production and to delivery of copies of such deeds, and an 
 undertaking for safe custody thereof, shall be given to the purchaser by the ven- 
 dor(y). 
 
 12. Should there be any error in the above description, as to tenure, outgoings 
 [nature of tenant's covenants] or otherwise, except as to the quantity of land, 
 which [being taken from the tithe survey] shall be conclusive, the same shall not 
 vitiate the contract, but a compensation shall be paid or allowed, as the case may 
 require, and shall be settled by reference as hereinafter mentioned. 
 
 13. All valuations and matters of reference under this contract shall be made 
 by or referred to two referees, one to be chosen by each party, or by the umpire 
 of such two referees, and on neglect of either party to name a referee within seven 
 days after notice in writing to do so, the decision of the referee appointed by the 
 other party to be binding. And in case of the referees not agreeing on an um- 
 pire, the same to be appointed by Mr. 
 
 14. The expense of this agreement is to be borne equally by the vendor and 
 the purchaser. 
 
 As witness the hands of the said parties, the day and year first above ■written. 
 
 \_Signatures.'\ 
 
 8. On Sale of Freehold by Private Contract v?ithout Special Conditions. 
 
 Mehorandu.m that it is agreed this day of , 18 , between 
 
 A. B., of , [vendor'], of the one part, and C. D., of , [purchaser'] 
 
 of the other part, as follows, that is to say : 
 
 1. The said A. B, (hereinafter called the vendor) agrees to sell, and the said 
 C. D. (hereinafter called the purchaser) to purchase, the fee simple in possession, 
 free from incumbrances, of all, &c. [parcels], at or for the sum of^ , [of 
 which £ has been paid by way of deposit at or before the execution of these 
 presents, and the residue is] to be paid on the day of next, at the 
 office of Mr. , , at which time and place the purchase shall be 
 completed. 
 
 2. The vendor will deliver to the purchaser's solicitor an abstract of his title to 
 the property on or before the day of next, and the vendor, and 
 all other necessary parties, if any, will, upon payment of the [residue of the] pur- 
 chase-money, execute a proper assurance of the property to the purchaser, such 
 
 {g) The rate, which as a rule is 5 per (i) See Conveyancing and Law of 
 
 cent, on auction-sales, is generally 4 per Property Act, 1881, s. 9. 
 cent upon sales by private contract. (/) If the vendor is a trustee or mort- 
 
 (/i) See Dav. Cone. Prec. 104. gagee he will not give an undertaking for 
 
 safe custody. 
 
PART II.] AGREEMENTS. 37I 
 
 assurance to be prepared by and at the expense of the purchaser, and to be left 
 by him at the said office not less than days before the said day 
 
 of \day fixed for completion^ 
 
 3. The purchaser shall be entitled to the possession \or the receipt of the rents 
 and profits] of the property from the said day of next \_day fixed 
 for completion'] , and from that day all outgoings shall be discharged by the pur- 
 chaser; and such outgoings shall, if necessary, be apportioned between the 
 parties. 
 
 4. If from any cause whatever the purchase shall not be completed on the said 
 
 day of , the purchaser shall pay to the vendor interest on the 
 
 unpaid purchase-money at the rate of /^ per cent, per annum from that day 
 
 until the completion of the purchase. 
 
 5. Finally, if any error, misstatement or omission shall be discovered in the 
 particulars, the same shall not annul the sale, but compensation shall be made in 
 respect thereof by the vendor, or by the purchaser, as the case may require, the 
 amount of such compensation to be settled, &c. [see ante, p. 341, Clause 12]. 
 
 As witness their hands. 
 
 \_Signatures^ 
 
 9. On Sale of Leasehold by Private Contract without Special 
 Conditions. 
 
 Memorandum that it is agreed, this day of , 18 , between 
 
 A. B., of , &c. (hereinafter called the vendor), of the one part, and CD., 
 
 of , &c. (hereinafter called the purchaser), of the other part, as follows, 
 
 that is to say : 
 
 I. The vendor agrees to sell, and the purchaser to purchase, all that leasehold 
 messuage, &c. (/;),'for the unexpired residue of a term of years created 
 
 by a certain indenture dated, &c., and made, &c., free from all incumbrances, ex- 
 cept the rent reserved by the said lease, and the covenants and conditions therein 
 contained, and to be performed on the part of the lessee, at or for the sum of 
 £ , to be paid, &c. (/). 
 
 (k) If the fixtures, goodwill and stock as the same shall be valued and appraised 
 
 are to be included, say : — at by [N. N. and M. M. (7r] two apprais- 
 
 " And also the goodwill of the trade ers, one to be chosen by each of the said 
 
 and business now carried on by the van- parties, or in case of disagreement between 
 
 dor, in and upon the said premises, as a them, &c." [See p. 341. Clause 12.] 
 
 , and all the fixtures, stock-in-trade If the purchase-money is to be paid by 
 
 and articles now afifixed to or being in or instalments, say : — 
 
 upon the same, and more particularly de- " And the purchaser agrees that he will 
 
 scribed in the schedule hereunder written." pay the said sum of ^^ [and the 
 
 (/) If the fixtures, &c., are to be taken amount at which the said fixtures, &c., 
 
 at a valuation, omit the mention of them shall be valued as aforesaid] in manner 
 
 above, and say here : — following, that is to say, the sum of ^^ 
 
 " And the vendor also agrees to sell, part thereof, on the said day of , 
 
 and the purchaser to purchase [all the fix- and, on the possession of the said prem- 
 
 tures, articles and things, now upon, in or ises being delivered up to him, the sum of 
 
 annexed to the said premises, which, as £ , other part thereof, on the 
 
 between landlord and tenant, would be day of , in the year, &c. \as the case 
 
 deemed to belong to the tenant or occu- may te\ ; and the residue of the said sum 
 
 pier of the said premises] [and all the of^ [and of the said amount 
 
 household furniture, utensils and things at which the said fixtures, &c., shall be 
 
 now in or upon the said premises] [and valued as aforesaid] on the day 
 
 all the stock-in-trade now upon the said of , in the year 18 ." 
 premises] , at and for such sum of money 
 
372 FORMS AND PRECEDENTS. [PART II. 
 
 2. The vendor will, at his own expense, deliver to the purchaser an abstract of 
 the said indenture of lease, and the subsequent title to the said premises as lease- 
 hold; and the vendor and all other necessary parties, if any, will, on or before 
 the day of , upon payment of the said purchase-money, execute 
 
 a proper assignment of the said premises to the purchaser, such assignment to be 
 prepared by and at the expense of the purchaser, and to be left by him at the 
 ofBce aforesaid not less than days before the said day of 
 
 [3-5. See last precedent^ 
 
 As witness, &c. ISignaturesr^ 
 
 10. To Grant a Lease for a Term of Years. 
 
 Memorandum of an agreement made this day of , 1 8 , be- 
 
 tween , of , &c. [intended lessor'], of the one part, and , 
 
 of , &c. [intended lessee'], of the other part. 
 
 The said A. B. agrees to let, and the said C. D. to take, all that, &c. [parcels'], 
 with the , for the term of years, from the day of , 
 
 at the yearly rent, clear of all existing and future taxes, rates and outgoings, of 
 £ , to be payable by four equal payments, on the day of , 
 
 the day of , the day of , and the day 
 
 of , in every year ; the first of such payments to be made on the 
 
 day of next. 
 
 The said A. B., his heirs or assigns (hereinafter called the lessor), will, on the 
 request of the said C. D., his executors, administrators or assigns (hereinafter called 
 the lessee), execute a proper lease of the said premises to the said lessee, for the 
 term and at the rent aforesaid; and the said lease shall contain covenants on the 
 part of the lessee for payment of the said net yearly rent, &c. [For covenants and 
 provisos, see conditions of sale on a letting by auction, aitte, pp. 352 et seq.'] 
 
 The lessee shall duly execute and deliver to the lessor a counterpart of the said 
 lease ; and the said lease and counterpart shall be prepared by the solicitor to the 
 lessor; and the expenses of preparing and executing this agreement and the said 
 lease and counterpart, and all other incidental expenses, shall be paid by [the les- 
 sor and] the lessee [in equal shares]. 
 
 Finally, until the execution of the said lease, the said premises shall be held by 
 the lessee at the rent aforesaid, and subject to the covenants and conditions to be 
 contained in the said lease as aforesaid, so far as the rules of law will permit. 
 
 As witness, &c. 
 
 ' [Signatures.] 
 
 Memorandum of an agreement made this day of , 18 , be- 
 
 tween A. B., of , &c. (who, and whose heirs and assigns, are hereinafter 
 
 described as the lessor) [or A. B., as agent of &c.], of the one part, and C. D., of 
 , &c. (who, and whose executors, administrators and assigns are herein- 
 after described as the lessee), of the other part. 
 
 I. (a) The lessor agrees to grant to the lessee, who agrees to accept of him, a 
 lease of the mansion or dwelling-house called, &c., situate at, &c., with the build- 
 ings, gardens, grounds and meadow or pasture lands, containing together 
 acres, or thereabouts, together with the use of the fixtures therein. 
 
 (l>) But with reservation to the lessor of the timber and other like trees, and 
 the right to cut and remove the same. 
 
PART II.] AGREEMENTS. 373 
 
 (f) And also of the right of entry for the lessor and the lessor's friends and 
 acquaintances for sporting, and the right to enter to view the state of repairs, or 
 for any other reasonable cause. 
 
 (</) To hold for the term of years from, &c. [subject to the right of 
 
 determination hereinafter contained] . 
 
 {e) At the rent of £ fer annum, payable [half-yearly] on, &c., and 
 
 the first payment to be made on, &c. 
 
 2. The lease to contain all usual and necessary covenants and in particular the 
 following covenants on the part of the lessee : — 
 
 (iz) For payment of rent without deduction. 
 
 {b) To pay rates and taxes (save property-tax) and tithe rent-charge. 
 
 (f) To repair generally. 
 
 (li) To paint externally in the year, and each succeeding third year, 
 
 and internally in the year, and each succeeding th year 
 
 [and paper once during the demise, and also to whitewash and colour once 
 in every years]. 
 
 (^) To insure in £ in joint names, with power to lessor to do so ia 
 
 default and charge and recover payments as rents. 
 
 (y) To keep gardens and pleasure-grounds in proper order. 
 
 (g) To preserve fruit-trees, shrubs and plants, and replace those dying, 
 (/i) To keep meadow-land properly manured and managed. 
 
 (;) To consume hay and manure on the premises. 
 
 (7) To leave last year's hay and manure, being paid for same by valu- 
 ation. 
 (/5) To leave premises at end of term in repair, with fixtures in proper state, 
 
 being allowed by valuation for added fixtures, as mentioned in lessor's 
 
 covenants. 
 (/) That lessor may enter and view repairs wanted, or for other reasonable 
 
 cause; and to repair within three months after notice. 
 («) Not to cut down or injure timber or other trees, and to pay £ 
 
 a load, besides value, for breach. 
 (k) Not to break up meadow-land, with penalty-rent of ;^io per acre for 
 
 breach. 
 (0) Not to assign or underlet without consent in writing [^qualification as to 
 
 offer of responsible assignee or tenant^. 
 
 3. The lease to contain the following covenants on the part of the lessor : — 
 
 (a) The usual covenant of quiet enjoyment. 
 
 {b) To pay by valuation for such fixtures as may be added by tenant, (o 
 amount of ;^ [and additions to buildings made by lessee with con- 
 
 sent in writing, at value if removed] . 
 
 (<-) Also to take the last year's hay and manure by valuation. 
 
 4. The lease is also to contain the following provisos : — 
 
 (a) For re-entry on non-payment of rent for days [though not for- 
 
 mally demanded], or on lessee becoming bankrupt, or assigning for benefit 
 of creditors, or on breach or non-observance of covenants (?«)• 
 
 (i) Empowering the [lessor or] lessee to determine the lease at end of the 
 
 {m) Under an agreement for a lease, proviso for re-entry on breach of any of 
 
 to contain " all usual and customary the covenants by the lessee, or otherwise 
 
 clauses," the landlord is not, it seems, than on non-payment of rent; Hodgkinson 
 
 entitled to have inserted in the lease a u. Crowe, L. R. 10 Ch. 622. 
 
374 FORMS AND PRECEDENTS. [PART II. 
 
 first years, on giving six months' notice [and also paying the 
 
 amount of half a year's rent]. 
 (c) For leaving disputes to arbitration. 
 
 5. The lease and counterpart to be prepared by the lessor's solicitor, at the 
 expense of the [lessor and] lessee [in equal shares]. 
 
 As witness the hands of the said parties the day and year first above written. 
 
 A. B. 
 l_Or yessor^fhy , his agent,] 
 
 C. D. («). 
 
 Memorandum of an agreement made this day of ,18 , 
 
 between A. B., of, &c. \_landlord~\, of the one part, and C. D., of, &c. [tenant], of 
 the other part. 
 
 The said A. B. agrees to let, and the said C. D. to take, from the day 
 
 of instant, for one year, and afterwards for another year, and so from 
 
 year to year, until one of the said parties shall determine the demise at the end of 
 the first or any subsequent year by giving to the other party not less than 
 calendar months' notice in writing, all that [parcels'] at and under the yearly rent 
 or sum of ;^ sterling, the same to be paid [half-yearly on the 
 
 day of and the day of ], and the first such payment to 
 
 be made on the day of next; which said rent the said C. D. 
 
 agrees to pay accordingly, free and clear of all deductions whatsoever ; and the 
 said C. D. agrees to pay all rates, taxes and other outgoings, present and future, 
 payable in respect of the said premises (except the land-tax and landlord's prop- 
 erty-tax, if any), and to lieep the said premises in good and sufficient repair dur- 
 ing the said demise. [Add such other stipulations as may be agreed upon.] 
 
 As witness, &c. 
 
 [Signatures^ 
 
 13. To Let a House or Apartments for a Less Term than a Year. 
 
 Whereas A. B., of, cS:c., intends to become the tenant of C. D., of, &c., of &c. 
 [parcels]. It is agreed that the following are the terms and conditions on which 
 the said A. B. shall hold the same. 
 
 The rent is to be at the rate o{ ^ per annum, payable quarterly [or 
 
 monthly, or weekly], on the following days, &c. [or on the first day of every 
 month, or on Wednesday in every week], clear of all deductions. • 
 
 The tenancy is to be quarterly [or monthly, or weekly], determinable by a 
 quarter's [or month's, or week's] notice, to be given at any time by either tenant 
 or landlord. [Add other stipulations, if necessary^ 
 
 {n) The following stipulations may be {d) Not to allow sale by auction on 
 
 in some cases desirable : — the premises. 
 
 (a) Payment in advance of a certain (e) To yearly deliver surveyor's cer- 
 portion of the rent. tificate of premises being in repair. 
 
 (b) Tenant to yearly expend a speci- (/) On lease including furniture, for 
 fied sum in repairs, and deliver surveyor's apportionment of rent, in case of furniture 
 certificate. and house, &c., becoming the property of 
 
 {c) To paint and paper in specified different parties, 
 manner. 
 
PART II.] AGREEMENTS. 375 
 
 14. For a Building Lease. 
 
 Memorandum, &c. 
 
 The said C. D. agrees that he will forthwith, at his own expense, well and sub- 
 stantially build and cover in, upon the piece of ground at S., in the said county, 
 delineated in the plan hereunto annexed, [two] second-rate messuages or tene- 
 ments, with proper outbuildings ; and that the same shall be built and completed 
 under the inspection and to the approbation of the surveyor of the said A. B., and 
 conformably in every respect to the plan and elevation also hereunto annexed, 
 with' good and substantial materials, &c., [as the case may he'\. 
 
 And the said A. B. agrees that, when and so soon as the said messuages (-■ 
 tenements shall be built and covered in, the areas thereof formed, and the foot 
 and carriage ways properly finished, he the said A. B. will execute a proper lease 
 of the said piece of ground, and the said messuages or tenements and buildings so 
 to be erected thereon as aforesaid, with the appurtenances, to the said C. D., his 
 executors, administrators or assigns, for the term of years, from the 
 
 day of , at the yearly rent, &c. \_as on p. 372] ; and that the said lease 
 
 shall contain all usual and necessary covenants, and particularly, &c. 
 
 And the said C. D. agrees to execute a counterpart, &c. 
 
 And it is agreed, that, in case the said messuages or tenements shall not be 
 built and completed ready for habitation before or on the day of , 
 
 the said A. B. shall be at liberty to re-enter and take possession of the said prem- 
 ises, and declare the present agreement void, in which case the same shall be 
 void accordingly to all intents and purposes. 
 
 It is further agreed that the said A. B. is not to be required to show his title to 
 the land agreed to be leased as aforesaid. 
 
 As witness the hands of the said parties, the day and year first above written. 
 
 \_Signatures^ 
 
 15. For a Loan on Mortgage. 
 
 Memorandum of an agreement made this day of , 18 , be- 
 
 tween A. B., of &c. {intending mortgagor], of the one part, and C. D., of &c. 
 [intending mortgagee'], of the other part. 
 
 1. The said C. D. shall lend to the said A. B. the sum of ;^ , at £^ per 
 cent, per annum interest) payable half-yearly, on mortgage of the property de- 
 scribed in the schedule hereto; provided that P. N., of , who shall forth- 
 with value the property, shall have reported the security to be sufficient; provided 
 also that the said A. B. shall have deduced a good marketable title to the property. 
 
 2. The said A. B. shall execute by way of security such assurance or assurances 
 of the property as the said C. D. shall reasonably require \or as the counsel of the 
 said C. D. shall deem proper to prepare]. 
 
 3. The loan and mortgage shall be completed on the day of 
 next. Time shall be of the essence of the contract. 
 
 4. All expenses of and incidental to this agreement and the negotiation for the 
 same, the loan and the mortgage, shall be paid by the said A. B., unless the mort- 
 gage shall not be completed through the wilful default of the said C. D. 
 
 As witness, &c. 
 
 [Signatures^ 
 
 Schedule. 
 
376 FORMS AND PRECEDENTS. . [PART 11. 
 
 i6. For a Mortgage. 
 
 Memorandum of an agreement made this day of , i8 , be- 
 
 tween A. B., of, &c. \_mortgagor\ of the one part, and C. D., of, &c. \jnortgagee\, 
 of the other part. In consideration of the sum of £ , this day advanced 
 
 by the said C. D. to the said A. B., the said A. B. hereby agrees to repay the said 
 sum on the day of next, with interest, from this day, at the rate 
 
 of;^ per cenl. per annum; and that, if the said sum of ;^ , or 
 
 any part thereof, shall not have been paid to the said C. D. on or before the said 
 day of next, the said A. B. shall pay interest on the amount re- 
 
 maining unpaid, at the rate aforesaid, by equal half-yearly payments, and will im- 
 mediately, at the request of the said C. D., but at the proper costs and charges of 
 the said A. B., execute a good and suflicient mortgage in fee simple, free from 
 incumbrances, of [the freehold {or leasehold) estate known as , situate 
 
 at , and belonging to the said A. B. (the title-deeds whereof have this 
 
 day been deposited in the hands of the said C. D.)], for the better securing such 
 principal sum remaining unpaid, with interest at the rate aforesaid. And until 
 such mortgage shall be executed, the said premises shall remain a security for, and 
 be charged with the payment of, the said sum of ;^ , and interest as afore- 
 
 said. 
 
 [See clause 4, supra^ 
 
 As witness the hands of the said parties. 
 
 \_Signatures^ 
 
 17. To Secure Future Advances. 
 
 I hereby agree to execute to Mr. A. B., on request, a mortgage in fee of, &c., 
 for securing all sums he may hereafter advance to me, with interest thereon paya- 
 ble, from the times of the respective advances, at the rate of &c., payable &c.; 
 such mortgage to be prepared by his solicitor at my expense. 
 
 \^Signature^ 
 
 18. Acknowledgment of Deposit of Deeds by Way of Equitable 
 
 Mortgage. 
 
 Memorandum. A. B., of, &c., has this day advanced to me, C. D., of, &c., the 
 sum of ^ ; and I have this day placed in his possession the title-deeds 
 
 specified in the schedule hereto, by way of equitable mortgage of the property to 
 which the said title-deeds relate, for securing the repayment of the said sum of 
 £ , with interest from this day at the rate of_,^ per cent, per anniwi^ 
 
 payable half-yearly. 
 
 Dated this day of , 18 . 
 
 A. B. 
 Schedule. 
 
 ig. Memorandum on Purchaser being Let into Possession before Ac- 
 ceptance of Title. 
 
 Memorandum. 
 
 Whereas, by a contract entered into the day of , A. B. agreed 
 
 to sell, and C. D. to purchase, all, &c. \as in ike original contract],. And whereas 
 the said C. D. is about to enter into the possession of the said premises, although 
 the conveyance shall not have been executed. Be it remembered, that such 
 
PART II.] AGREEMENTS. 377 
 
 taking possession shall not be deemed an acceptance of the title, or an abandon- 
 ment on the part of the said C. D. of his right to have all valid objections to the 
 title fully removed. 
 
 As witness, &c. 
 
 Dated this day of 
 
 \_Signature5.'] 
 
 20. Agreement to Purchase Ship. 
 
 I have this day bought the above-named ship and stores on the above-mentioned 
 conditions of sale for the sum of jQ 
 
 Dated this day of , 18 . 
 
 [Purchaser's signature.'] 
 
 21. Agreement for Putting Off a Business. 
 
 Memorandum of an agreement made this day of > 18 , between 
 
 A. B., of, &c., of the one part, and C. D., of, &c., of the other part. 
 
 The said A. B. agrees that, in consideration of the sum of^ and of the 
 
 valuation-money hereinafter mentioned, the said A. B. shall and will, on the 
 day of , relinquish to and in favour of the said C. D. the business 
 
 of [lately used and carried on by W. A., her late husband, and] now 
 
 carried on by the said A. B., at aforesaid, and the goodwill thereof, and 
 
 transfer to the said C. D. the stock-in-trade in and belonging to the said business, 
 and the shop-fixtures and other fixtures, implements and utensils of trade in and 
 upon the premises of the said A. B. at aforesaid; and also execute to the 
 
 said C. D. an assignment of the lease which the said A. B. now holds, of her 
 dweUing-house, shop and premises at aforesaid, subject to the rents and 
 
 covenants therein reserved and contained. And it is agreed that the said stock, 
 fixtures, implements and utensils shall, before the day of , be 
 
 valued and appraised by L. M. And the said C. D. agrees that he will accept the 
 said business, goodwill, lease and premises, and pay to the said A. B. for the same 
 the sum of , and also such sum as the said stock, fixtures, implements and 
 
 utensils shall be valued and appraised at by the said L. M. as aforesaid, in man- 
 ner following, that is to say, the sum of on the day of , 
 and the remainder on the day of , &c. And the said A. B. 
 agrees that, on her relinquishment of the said business to the said C. D. as afore- 
 said, she will thenceforth endeavour to induce her customers to deal with the said 
 C. D., and will not within the space of years from the date hereof directly 
 or indirectly carry on the said business, or any similar business, within miles 
 of aforesaid, and will forthwith after breach of this stipulation pay to the 
 said CD. the sum o{ £ as ascertained and liquidated damages. And it is 
 agreed that, the expense of preparing this agreement, and of making the said 
 valuation, shall be borne and paid by the said A. B. and C. D. in equal shares. 
 
 As witness their hands. 
 
 {^Signalures.l 
 
37^ FORMS AND PRECEDENTS. [PART II. 
 
 VII. AUCTIONEER'S COMMISSION, &c. 
 
 I. Scale of Fees (a). 
 
 Messrs, 's scale of terms. 
 
 a. Sa/es by Auction. 
 
 A commission of £^ per cent, on the first ;i^ioo, 2\ per cent, from thence to 
 ;^5,ooo, I \per cent, from thence to ;^lo,ooo, and £l per cent, on all above. 
 
 When any sale amounts to ,,^2,000 and upwards, the commission to include all 
 expenses (except for plans, lithographic views and travelling). 
 
 When any sale amounts to ;;^i,5oo, and less than ;i^ 2,000, the commission to 
 include half the expenses (except for plans, views and traveUing). 
 
 When a sale amounts to less than ;i^ 1,500, the expenses in addition to the 
 commission. 
 
 In case of no sale being effected, a moderate fee (dependent upon the nature 
 of the property) in addition to the costs out of pocket. 
 
 An estimate of the probable cost of a sale given, when required. 
 
 For sales of estates and house property held in the country, in most cases as 
 above. 
 
 On sales of furniture, live and dead stock, and general chattels, a commission 
 of ;i^5 per cent., and costs out of pocket. 
 
 b. Sales and Lcttings by Private Contract. 
 A fee of ;i^l I J', on the entry of particulars of each property on the books, and 
 no other charge (except for advertisements, or other expenses for which special 
 instructions may be given), unless a sale be made, or a tenant obtained, by 
 Messrs. 's instrumentality or introduction, when credit is given for the 
 
 entrance fee, and a charge made in accordance with the following scale of com- 
 mission : 
 
 For selling by private contract freehold and copyhold property, or leaseholds held 
 
 at ground rents : 
 
 On the first _;!^ 100 ;^5 /(.T cent, (in no case less than ^5). 
 
 From;,^ioo to_;i^5,ooo_;!^5 per coit. on the first j^^ioo, ixnd. £2.\ per cent, on the 
 remainder. 
 
 isX'ioy^ £^^000 £i\ per cent, on the first _;j^ 5,000, ;i^i V /if r r^-;/;*. from thence to 
 ;,^lo,ooo, and;^l per cent, on the remainder. And in each case where timber, 
 fixtures, furniture, tenant-right, stock or other effects are included in the sale, the 
 amount agreed to be paid for the same (if without valuation) is added to the sum 
 obtained for the property, and commission charged upon the gross amount. If a 
 valuation be needed, a commission of ^5 per cent, upon the first £^00, and £^2\ 
 per cent, on the remainder, is charged, in addition to stamp and travelling 
 expenses. 
 
 For letting estates or houses, or disposal of leases at rack rentals : 
 Unfurnished — On agreement for one, two or three years : £^ per cent, on one 
 year's rent; ^^5 per cent, on the premium; and on the amount agreed to be paid 
 for fixtures, furniture, tenant-right, stock or other effects (whether sold by valua- 
 tion or otherwise), ^5 per cent, on the first ;!^200, and £2% per cent, on the 
 remainder. 
 
 {ci) These- are the usual terms of an eminent London firm of auction, land and 
 estate agents. 
 
PART II.] auctioneer's COMMISSION, ETC. 
 
 379 
 
 Unfurnished — On lease or assignment of lease : On the first year's rent £^ 
 per cent.; on the second year's ttvA, £,'i\ per cent.; also on the premium for the 
 lease or assignment, ^^5 per cent, on the first ^500, and £2\ per cent, on the 
 residue; and on the amount agreed to be paid for fixtures, furniture, tenant-right, 
 stock or other effects, £(, per cent, on the first ;£'200, and £z\ per cent, on the 
 residue. In either of these cases the valuation of the fixtures, furniture, tenant- 
 right, stock or other effects is made without extra charge, except for travelling 
 expenses, stamp, &c. 
 
 Furnished — £iper cent, on the entire rental (not exceeding twelve months). 
 
 On letting building land, one year's standing ground rent. 
 
 On large estates (by special arrangement), one half-year's ground rent. 
 
 When a property is let to a tenant who afterwards Ijecomes the purchaser, the 
 commission on letting is allowed from the commission on the purchase-money 
 then payable. 
 
 c. Valuations. 
 
 Of fixtures, furniture, tenant-right, stock, and other effects, £(, per cent, on the 
 first jf 200, and £2 loj. per cent, on the residue ; travelling expenses, stamp, 
 &c., extra. 
 
 Of timber, ^5 per cent, on the first ^500, and £2 10s. per cent, on the residue 
 (in some cases ;^5 per cent, on the entire amount) ; travelling expenses, stamp, 
 &c., extra. 
 
 In railway and other compensation cases : 
 
 Amount 
 
 
 Amount 
 
 
 Amount 
 
 
 of Verdict or 
 
 Fee. 
 
 of Verdict or 
 
 Fee. 
 
 of Verdict or 
 
 Fee. 
 
 Award. 
 
 
 Award. 
 
 
 Award. 
 
 
 £iao 
 
 Gs.s 
 
 ;^3.6oo 
 
 Gs. 31 
 
 ;^8,0OO 
 
 Gs.53 
 
 200 
 
 7 
 
 3,800 
 
 32 
 
 8,200 
 
 54 
 
 300 
 
 9 
 
 4,000 
 
 33 
 
 8,400 
 
 55 
 
 400 
 
 II 
 
 4,200 
 
 34 
 
 8,600 
 
 56 
 
 500 
 
 13 
 
 4,400 
 
 35 
 
 8,800 
 
 57 
 
 600 
 
 14 
 
 4,600 
 
 36 
 
 9,000 
 
 58 
 
 700 
 
 15 
 
 4,800 
 
 37 
 
 9,200 
 
 59 
 
 800 
 
 i5 
 
 5,000 
 
 38 
 
 9,400 
 
 60 
 
 900 
 
 17 
 
 5,200 
 
 39 
 
 9,600 
 
 6i 
 
 1,000 
 
 18 
 
 5,400 
 
 40 
 
 9,800 
 
 62 
 
 1,200 
 
 19 
 
 5,600 
 
 41 
 
 10,000 
 
 63 
 
 1,400 
 
 20 
 
 5,800 
 
 42 
 
 1 1,000 
 
 68 
 
 1,600 
 
 21 
 
 6,000 
 
 43 
 
 12,000 
 
 73 
 
 1,800 
 
 22 
 
 6,200 
 
 44 
 
 13,000 
 
 78 
 
 2,000 
 
 23 
 
 6,400 
 
 45 
 
 14,000 
 
 83 
 
 2,200 
 
 24 
 
 6,600 
 
 46 
 
 15,000 
 
 88 
 
 2,400 
 
 25 
 
 6,800 
 
 47 
 
 16,000 
 
 93 
 
 2,600 
 
 25 
 
 7,000 
 
 48 
 
 17,000 
 
 98 
 
 2,800 
 
 27 
 
 7,200 
 
 49 
 
 18,000 
 
 103 
 
 3,000 
 
 28 
 
 7,400 
 
 5° 
 
 19,000 
 
 108 
 
 3,200 
 
 29 
 
 7,600 
 
 51 
 
 20,000 
 
 "3 
 
 3.4°o 
 
 30 
 
 7,800 
 
 52 
 
 Above this Speci.il 
 Arrangement. 
 
 or umpire. 
 
 In addition to the above, ^3 3J'- per day for attendance before a jury 
 if in London, ;^5 5^., if in the country; travelling expenses extra (J)). 
 
 {J}) Owing to the great variety of cir- surveys and specifications are generally 
 cumstances under which they are required, made the subject of a special arrangement. 
 
38o 
 
 FORMS AND PRECEDENTS. 
 
 [part II. 
 
 ■J.. Scale of Charges Approved by the Surveyors' Association, the Select 
 Society of Auctioneers, and the Committee of the Estate Exchange (<:). 
 
 Valuations. 
 
 Commission on the amount of the valuation at the rate of one guinea /^r cent. 
 on the first _^i,ooo, half a guinea /cr cent, on the next ^{^9,000, and quarter guinea 
 per cent, on the residue. 
 
 In valuations for mortgage, if an advance is not made, one-third of the above 
 charges; the minimum fee to be five guineas. 
 Sales of property. 
 
 Under ^500, 5 /«' cent. on;^ioo, and 2\ per cent, on residue. 
 
 Between ^500 and ;^2,ooo, 7.\ per cent. 
 
 Between ^2,000 and ;^5,ooo, 2} per cent, on ^'2,000, and 2 per cent, on residue. 
 
 Between jf 5,000 and ^10,000, 2 per cent, on the first ^5,000, and ij per cent. 
 on residue. 
 
 Above ;^IO,ooo, i :} per cent, on ^10,000, I per cent, on the next ;^lo,ooo, and 
 \ per cent, on the residue. 
 Purchases of property by private treaty. 
 
 One-half the fee charged on sales, to include valuation. 
 
 When more than one property has been reported upon, an extra charge to be made. 
 
 Timber. 
 
 Five/(?r cent, on first ^500, and 2\ per cent, on remainder of valuation. 
 
 Five per cent, on all timber set out and marked for sale, and sold. 
 Dilapidations, 
 
 Five^^r cent, on the amount, with a minimum fee of five guineas. 
 Valuation of properties for rental. 
 
 Five per cent, on the first year's rent. 
 
 The above charges are exclusive of plans and disbursements. 
 In respect of property taken under compulsory powers. 
 
 On amount of settlement, whether by verdict, award, or otherwise : 
 
 Amount. 
 
 Guineas. 
 
 Amount. 
 
 Guineas. 
 
 Amount. 
 
 Guineas. 
 
 ;fioo 
 
 s 
 
 ^3.400 
 
 3° 
 
 pf7,6oo 
 
 51 
 
 200 
 
 7 
 
 3,600 
 
 31 
 
 7,800 
 
 52 
 
 300 
 
 9 
 
 3,800 
 
 32 
 
 8,000 
 
 53 
 
 400 
 
 II 
 
 4,000 
 
 33 
 
 8,200 
 
 54 
 
 500 
 
 13 
 
 4,200 
 
 34 
 
 8,400 
 
 55 
 
 600 
 
 14 
 
 4,400 
 
 35 
 
 8,600 
 
 56 
 
 700 
 
 15 
 
 4,600 
 
 36 
 
 8,800 
 
 57 
 
 800 
 
 16 
 
 4,800 
 
 37 
 
 9,000 
 
 58 
 
 900 
 
 17 
 
 5,000 
 
 38 
 
 9,200 
 
 59 
 
 1,000 
 
 18 
 
 5,200 
 
 39 
 
 9,400 
 
 60 
 
 1,200 
 
 19 
 
 5,400 
 
 40 
 
 9,600 
 
 61 
 
 1,400 
 
 20 
 
 5,600 
 
 41 
 
 9,800 
 
 62 
 
 1,600 
 
 21 
 
 5,800 
 
 42 
 
 10,000 
 
 63 
 
 1,800 
 
 22 
 
 6,000 
 
 43 
 
 11,000 
 
 68 
 
 2,000 
 
 23 
 
 6,200 
 
 44 
 
 12,000 
 
 73 
 
 2,200 
 
 24 
 
 6,400 
 
 45 
 
 14,000 
 
 83 
 
 2,400 
 
 25 
 
 6,600 
 
 46 
 
 16,000 
 
 93 
 
 2,600 
 
 26 
 
 6,800 
 
 47 
 
 18,000 
 
 103 
 
 2,800 
 
 27 
 
 7,000 
 
 48 
 
 20,000 
 
 "3 
 
 3,000 
 
 28 
 
 7,200 
 
 49 
 
 Beyond this 
 
 3,200 
 
 29 
 
 7,400 
 
 50 
 
 half-a-guinea per cent. 
 
 (^) The remaining scales of fees and charges, although strictly belonging to another 
 place, are printed in this portion of the book for the reader's greater convenience of 
 reference. 
 
PART II.] auctioneer's COMMISSION, ETC. 38 1 
 
 The fee is exclusive of five guineas per day for attendance in the country, and 
 three guineas in London. 
 
 Plans and disbursements extra. 
 
 3. Costs and Fees Payable Under the Bankruptcy Act, 1869 {d). 
 
 (Subject to variation by the trustees, with the consent of the committee of in- 
 spection, or of the court, where there is no committee.) 
 
 Broiler's allowance. 
 
 For inventory, and valuation : ^ s. d. 
 
 For the first ;^ioo . ..... ... 2 10 o 
 
 For the next ^^400, per cent 150 
 
 All above . . . . . . . . . .100 
 
 (This allowance to include all expenses, and any travelhng within 
 five miles of the court, and a fair copy of the inventory.) 
 Beyond five miles, per mile one way ' . . . , ..007 
 Auctioneer's charges, including all expenses of sale {/). 
 Sales by auction of goods, chattels and effects ; 
 £10 per cent, on the first ^100. 
 
 After, to . ... jf 1,000 ■ ■ ■ • £S percent. 
 
 After, to ;!f 5,000 . £2 los. per cent. 
 
 After, to . . . ;^ 10,000 . . . . £1 ^s. percent. 
 
 If the above be sold by valuation, £2 \os. per cent, on the first jf 1,000, and 
 £1 t^s. per cent, beyond. 
 
 Sales by auction of estates, freehold, leasehold, &c. : 
 £^ per cent, on the first ;^300. 
 
 After, to ^1,000 . £2 \os. per cent. 
 
 After, to . . . ;/^5,ooo . . . £\ per cent. 
 
 After, to .... ;^io,ooo . . . \os. per cent. 
 
 If the above be sold by valuation, half the above charges; and if not sold, the 
 expenses to be paid, and fee to the auctioneer to be allowed as agreed with the 
 trustee, or at the discretion of the taxing officer; or if bought in and subsequently 
 sold by private contract by the negotiation of the auctioneer, half the above 
 charges on sales by auction. 
 
 Farming stock ;^5/^r cent, on the first .3^100, and £2 \os. on the remainder. 
 When sold by valuation, half the above charges. 
 
 Costs of surveys, dilapidations and specifications. 
 From £2 to £'^ in discretion of taxing officer. 
 
 ((/) Order of 1st January, 1870. no railway is available, or as actually in- 
 (<r) The allowances to auctioneers as curred, in the discretion of Ihe taxing mas- 
 witnesses in bankruptcy cases are : if lesi- ter. In a Chancery case, Wickens, V.-C, 
 dent in the town in which the court is ruled that the proper allowance for an 
 held, ;^i ij. (clerks, lOJ. 6i), if resident at auctioneer and valuer, as witness, was 
 a distance from the court, subsistence in two guineas a day, one guinea for his 
 these cases included: £^ T.s. to £2 2S. maintenance, and another for his loss of 
 (surveyors, £1 is. to £3 3J. ; clerks, 15^.). time and business, in addition to his first- 
 Travelling expenses are allowed to auc- class railway fare : Wiltshire k. Marshall, 
 tioneers at the rate of yd. per mile, to W. N. 1866, p. 80. 
 their clerks at ^d. per mile, one way, where 
 
382 FORMS AND PRECEDENTS. [PART II. 
 
 Sales of stock by tender. 
 
 Not above ;f 400 £\ per cent. 
 
 After, to ;^ 1, 000 £1 los. per cent. 
 
 After, to/ 2,000 £2 los. per cent. 
 
 After, to /S,ooo £2 per cent. 
 
 Above ;,f 5,000 and upwards ... £\ 1^5. per cent. 
 
 Expenses to be allowed, such as advertisements and printing, not exceeding 
 £z, or at the discretion of the taxing officer. 
 
 4. Fees for Appraisements and Sales of Goods taken in Execution 
 under County Court Process (/). 
 
 Broker's and appraiser's fees. 
 
 For the appraisement of goods, Whether by one broker or more — ■ sixpence in 
 the pound on the value of the goods appraised, over and above the stamp duty. 
 
 For the sale of goods, including advertisements, catalogues, sale and commis- 
 sion, and delivery of goods, one shilling in the pound on the net produce of sale. 
 
 In all plaints for the recovery of debt or damages, all poundage, except where 
 otherwise specified in this schedule, shall be estimated on the amount of the claim. 
 
 In replevins all poundage, except as aforesaid, shall be estimated on the 
 amount of the alleged rent or damage, to be fixed by the registrar. 
 
 In plaints for the recovery of tenements, when the term has expired or been 
 determined by notice, all poundage, except as aforesaid, shall be estimated on the 
 amount of the weekly, monthly or yearly rent of the tenement, as such tenement 
 shall have been let by the week or by the month, or for any longer period; and 
 if no rent shall have been reserved, then on the amount of the half-yearly value 
 of the tenement, to be fixed by the registrar. 
 
 If in any plaint for the recovery of tenements a claim be made for rent or 
 mesne profits, an additional poundage shall be paid on the amount of such claim. 
 
 In plaints for the recovery of tenements for non-payment of rent all poundage, 
 except as aforesaid, shall be estimated on the amount of the half-yearly rent of the 
 tenement. 
 
 In every case where the poundage would, but for this rule, be estimated on an 
 amount exceeding £20^ it shall be estimated at /20 only. 
 
 In every case where the poundage cannot be estimated by any rule in this 
 schedule, it shall be estimated on /20. 
 
 All fractions of a pound, for the purpose of calculating poundage, shall be 
 treated as an entire pound. 
 
 Where the plaintiff recovers less than the amount of his claim, so as to reduce 
 the scale of costs, he shall pay the difference, unless the reduction shall be caused 
 by a set-off. 
 
 In cases of interpleader the judge may allow at the hearing the actual costs 
 incurred by the high bailiff in keeping possession of the goods claimed, and no 
 more. 
 
 No increase of fees shall be made by reason of there being more than one 
 plaintiff or defendant. 
 
 (/) 19 & 20 Vict. c. io3, Schedule C. See ante, pp. 250-252. 
 
PART II.] SALES BY THE COURT. 383 
 
 5. Costs and Charges on Distresses for Small Rents and Rates (J). 
 
 J. d. 
 Levying distress ............30 
 
 Man in possession, per day ...... ... 2 6 
 
 Appraisement, wiietlier by one broker or more, sixpence in the pound 
 
 on the value of the goods. 
 Stamp, the lawful amount thereof. 
 
 All expenses of advertisements, if any such 10 o 
 
 Catalogues, sale and commission, and delivery of goods, one shilling in 
 the pound on the net produce of the sale. 
 
 VIII. SALES BY THE COURT, {a) 
 
 1. Affidavit as to Proposed Mode of Lotting, and Time and Place of Sale. 
 
 In the High Court of Justice, 18 , [B. (<^)]. No. 
 
 Chancery Division. 
 
 \_Name of judge.'] Between A. B., Plaintiff, 
 
 and 
 C. D. and E. F., Defendants. 
 I, X. Y., of \^place of residence^ and description or addition\ make oath and 
 say as follows : 
 
 1. I have for years last passed been engaged in the business of an 
 auctioneer and land and estate agent ; and for years last passed I have 
 carried on such business at aforesaid ; and I have had considerable ex- 
 perience in the mode of lotting and selling land and house property. 
 
 2. I know and am well acquainted with the estates situate at , in the 
 county of , proposed to be sold in this action, and described in the paper 
 writing marked A., now produced and shown to me. 
 
 3. On the day of , 18 , I went over the said estates, and 
 made a careful survey thereof, for the purpose of forming an opinion as to the 
 best mode of dividing and allotting the said estates for the said sale thereof. 
 
 4. The said paper writing marked A. sets forth a true and correct description 
 of the said estates, to the best of my knowledge and belief, and the mode in which, 
 in my judgment and opinion, it will be desirable to lot and divide the same for 
 the purposes of the said sale. 
 
 5. In my judgment and belief the said estates will be sold to the most advan- 
 tage, and will be likely to realize the best prices, if the scheme of division and 
 allotment set forth in the said paper viriting marked A. be adopted. 
 
 7. The day of , 18 , at (five for six) of the clock in the even- 
 
 ing, and the Plotel, at , in the county of , will be a desir- 
 
 able and convenient time and place for the said sale. 
 
 {g) See ante, p. 219. complete series of forms for use upon 
 
 (a) The following eight forms are in- sales by the Court will be found (see 3rd 
 
 serted for the purpose of giving to the auc- ed. Nos. woo et seq?\. For forms of ad- 
 
 tioneer a more thorough insight into the vertisement, particulars and conditions of 
 
 practice which obtains upon sales by the a sale by the Court, see ante, pp. 292, 294, 
 
 Court. They are taken from Daniell's 315. 
 Chancery Forms and Precedents, where a [b) Initial of plaintiff's surname. 
 
384 
 
 FORMS AND PRECEDENTS. 
 
 [part II. 
 
 :i. Affidavit of Fitness of Proposed Auctioneer. 
 
 [Formal parts as in lasl form.'] 
 
 1. I have for years last part known and been well acquainted with 
 L. M., of [residence and addition], auctioneer and land and estate agent; and 
 during all that time the said L. M. has carried on business as an auctioneer and 
 land and estate agent at aforesaid {or as inay be] . 
 
 2. I have on several occasions employed the said L. M. as an auctioneer and 
 land-valuer, and am also acquainted with several persons who are in the habit of 
 employing him in that capacity, and he has invariably given entire satisfaction to 
 me, and I believe also to such other persons. 
 
 3. The said L. M. is a person of respectability and integrity, and of considera- 
 ble ability as an auctioneer and land and estate agent ; and in my judgment he is 
 a fit and proper person to be employed to sell the estates situate at , in 
 the county of , proposed to be sold in this auction. 
 
 3. Affidavit as to Valuation and Proposed Reserved Bidding. 
 
 [Formal farts as in Form I, siipraT] 
 
 1. I have carefully examined and surveyed the estates particularly described in 
 the printed particulars of sale marked A., now produced and shown to me, in 
 order to form an opinion as to the value thereof, and the amounts which the said 
 estates ought to realize on the sale thereof advertised to take place on the 
 
 day of , 18 . 
 
 2. I have, in the paper writing marked B., now produced and shown to me, 
 set forth in the first column the number of the lots into which the said estates have 
 been divided for the purposes of the sajd sale ; and in the second column, oppo- 
 site the numbers of the said lots respectively, the full values of the said lots re- 
 spectively ; and in the third column, opposite the said numbers respectively, the 
 amounts which, in my judgment and belief, should be fixed as the reserved bid- 
 dings for the said lots respectively on the said sale (^). 
 
 4. Directions to Auctioneer as to Sale in Several Lots, where there are 
 Reserved Biddings. 
 
 Mr. Justice , 
 
 at Chambers. 
 
 [Short title of the action or matter, and reference to the record.] 
 
 Mr. L. M., the person appointed to sell the estates advertised for sale in this 
 action [or matter] is requested to attend to the following directions : — 
 
 R. M., Chief Clerk. 
 
 The sale is to be conducted in accordance with the accompanying printed par- 
 ticulars and conditions, signed by the Chief Clerk. This print is to be carefully 
 
 (.) E.g.:- 
 
 No. of Lot. 
 
 Value. 
 
 Proposed reserved bidding. 
 
 I 
 2 
 
 ;f2,000 
 
 ^1,850 
 ;^450 
 
PART II.] 
 
 SALES BY THE COURT. 
 
 38s 
 
 preserved, and returned to the Judge's Chambers with the affidavit of the result 
 of the sale. 
 
 The sale is to be subject to the reserved bidding specified in the accompanying 
 note. This note is not to be opened till the time of sale. The reserved bids are 
 not to be divulged to any person, either at, or at any time after, the sale. 
 
 In case there is no bidding for any lot equal to, or higher than, the reserved 
 bid, the person appointed to sell is to declare that such lot is not sold, but has 
 been bought in on account of the persons interested in, or entitled to, the property. 
 
 The accompanying bidding paper is to be carefully filled up. The highest sum 
 bid, whether the lot is sold or not, is to be inserted in the second column. In the 
 event of no person bidding for any lot, the words " no bidding " are to be written 
 in the second column, opposite the number of such lot. When, although there is 
 a bidding, the lot is not sold, the words " not sold " are to be written in the third 
 column. The purchasers are to sign their names in the third column, and any 
 person who purchases as agent for another must so sign; otherwise he must be 
 treated as the purchaser. The purchaser's address and quality are to be fully 
 stated in the fourth column. 
 
 When the purchaser's signature is not plain, or initials are used, a note must 
 be put at the foot of the bidding paper, as follows : " The name of the purchaser 
 of lot is 
 
 5. Note of the Reserved Biddings. 
 
 \_Commence as in preceding form^ 
 
 The reserved biddings fixed by Mr. Justice , to which the sale in this 
 
 action \or matter] is to be subject, are as follows, viz. : — 
 
 For Lot I. 
 
 £%6o. 
 
 For Lot 2. 
 
 £2S°- 
 
 For Lot 3. 
 
 .£lf^- 
 
 For Lot 4. 
 
 £100. 
 
 For Lot 5. 
 
 ^650. 
 
 For Lot 6. 
 
 £ti-°- 
 
 R. M., Chief Clerk. 
 
 6. Bidding Paper on a Sale in Several Lots. 
 
 In the High Court of Justice, 
 Chancery Division. 
 
 \_Short title of action or matter^ 
 
 This bidding paper, marked B., was produced and shown to L. M., and 
 
 is the same as is referred to in his affidavit sworn this day of , 
 
 18 , before me, E. F., a commissioner, &c. \pr as may iej. 
 
 We, whose names are hereunder subscribed, respectively bid at the sale by 
 
 auction in the above action [or matter], on the day of ,18 , the 
 
386 
 
 FORMS AND PRECEDENTS. 
 
 [part 11. 
 
 sums set opposite our respective names for, and became the purchasers of, the 
 respective lots specified in the particulars produced at such sale, the numbers of 
 which are set opposite to our respective names, subject to the conditions also 
 produced at such sale. 
 
 No. of 
 Lot. 
 
 Amount of 
 highest bidding. 
 
 Signatures of the Purchasers 
 of the lots sold. 
 
 Purchasers' address 
 and quahty. 
 
 I 
 
 £9°o 
 
 Edward Thornton 
 
 Epping, Essex, 
 Farmer. 
 
 2 
 
 ;f20O 
 
 Not Sold. 
 
 
 3 
 
 No bidding. 
 
 
 
 4 
 
 No bidding. 
 
 
 
 5 
 
 -^500 
 
 Not Sold. 
 
 
 6 
 
 .^750 
 
 Arthur Cuthbertson, agent 
 for T. E. Masson 
 
 Ilford, Essex, 
 Esquire. 
 
 Note. — The name of the purchaser of Lot 6 is Thomas Ed^vard Masson, 
 
 7. Affidavit of Result of a Sale in Several Lots. 
 
 In the High Court of Justice, 
 Chancery Division. 
 
 [ Title of action or matter, and reference to the record,'] 
 
 I, L. M., of \_!-esidence and addition], the person appointed by the judge to 
 whom this action \_or matter] is attached to sell the estates comprised in the par- 
 ticulars hereinafter referred to, make oath and say as follows : — 
 
 1. I did, at the time and place, in the lots, and subject to the conditions speci- 
 fied in the particulars and conditions of sale now produced and shown to me and 
 marked with the letter A., put up for sale by auction the estates described in such 
 particulars ; and the result of such sale is truly set forth in the bidding paper 
 marked with the letter B. now produced and shown to me. 
 
 2. [If any lots were sold say :] The sums set forth in the second column of 
 such bidding paper are the highest sums bid for the respective lots the numbers 
 of which are set forth in the first column, opposite to such respective sums; and 
 the persons whose names are subscribed in the third column of such bidding 
 paper as purchasers were respectively the highest bidders for, and became the 
 purchasers of, the respective lots the numbers whereof are set opposite to such 
 respective names in the said first column of the said bidding paper, at the prices 
 or sums set opposite to their respective names in the said second column thereof. 
 
 3. [If any lots were bid for, but not sold, add:] The several lots opposite to 
 the numbers of which I have, in the third column of the said bidding paper, 
 written the words " not sold " were not sold, no person having bid a sum equal 
 to or higher than the reserved bidding fixed by the said judge. 
 
PART 11. J 
 
 SALES BY THE COURT. 
 
 387 
 
 4. \_If any lots were not bid for, add rj^ No person bid any sum whatever for 
 either of the lots opposite the numbers of which I have in the second column of 
 the said bidding paper written the words " no bidding." 
 
 5. [/» every case, add :'] The said sale was conducted by me in a fair, open 
 and candid manner, and according to the best of my skill and judgment. 
 
 6. \_Jf a deposit was paid, add:'] I have received the sums set forth in the 
 fourth column of the schedule hereto, as deposits from the respective purchasers 
 whose names are set forth in the second column of such schedule, opposite the said 
 respective sums, in respect of their respective purchase-moneys, set forth in the third 
 column of the said schedule, opposite such names, for the respective lots the num- 
 bers of which are set forth in the first column of the said schedule, opposite such re- 
 spective names ; leaving due, in respect of the purchase-moneys set forth in the said 
 third column, the respective sums set forth in the fifth column of the said schedule. 
 
 The schedule above referred to. 
 
 No. of 
 Lot. 
 
 Name of Purchaser. 
 
 Amount of 
 Purchase- 
 money. 
 
 Amount of 
 Deposit 
 received. 
 
 Amount 
 
 remaining 
 
 due. 
 
 I 
 6 
 
 Edward Thornton 
 
 Thomas Edward 
 Masson 
 
 Total . . . 
 
 900 
 750 
 
 £ 
 90 
 
 rs 
 
 8io 
 675 
 
 £^(>S° 
 
 ;^i65 
 
 .^1485 
 
 Sworn, &c. 
 
 8. Chief Clerk's Certificate of Result of a Sale in Several Lots. 
 
 In the High Court of Justice, 
 Chancery Division. 
 
 [ Titte of the action or matter, and reference to the record^ 
 
 In pursuance of the directions given to me by Mr. Justice , I hereby 
 
 certify that the result of the sale which has been made in pursuance of the judg- 
 ment {or order] made in this action \_or matter], dated the day of , 
 18 , is as follows : — 
 
 The real estates of A. B., the testator in the said judgment \_or order], dated 
 the day of , 18 , named, and thereby \or as may be~\ directed to 
 
 be sold, have been offered for sale in six lots by public auction, with the approba- 
 tion of the said judge, subject to a reserved bidding for each lot, fixed by the said 
 judge, and according to certain particulars and conditions of sale ; and the several 
 persons named in the first column of the first schedule hereto were the highest 
 bidders for, and they are allowed by the said judge to be the purchasers of, the 
 respective lots set opposite to their respective names in the second column of the 
 said fir.st schedule, at the prices or sums set opposite to their respective names in 
 the third column of the said first schedule. 
 
 The purchasers have paid the several sums set opposite their respective names 
 in the fourth column of the said schedule, as deposits, to L. M., the person ap- 
 pointed by the said judge to receive the same, such sums being the amounts fixed 
 by the said judge to be paid as deposits by the purchasers respectively at such 
 sale ; and the several sums set opposite the respective names of such purchasers 
 in the fifth column of the said schedule remain due from the said purchasers re- 
 
388 
 
 FORMS AND PRECEDENTS. 
 
 [part II. 
 
 spectively, as the balance of their respective purchase-moneys. The said several 
 sums mentioned in the fourth column of the said schedule, which have been re- 
 ceived by the said L. M., amount together to the sum of ;^i65 ; which sum of 
 ;^i65 the said L. M. is, on or before the day of , i8 , to pay 
 
 into court to the credit of [&c., as in judgment or order directing the sale"]. 
 
 The purchaser of the lot numbered 6 is T. E. M., a defendant in this action, an 
 order dated the day of > i8 , having given him liberty to bid. 
 
 No person bid for either of the lots numbered 2 and 5 a price equal to, or 
 higher than, the sum fixed as the reserved bidding ; and therefore such lots were 
 not sold at such auction. 
 
 No person bid for either of the lots numbered 3 and 4. 
 
 The particulars of the lands and hereditaments comprised in the respective lots 
 so sold as aforesaid are set forth in the second schedule hereto \_or are set forth 
 in the exhibit marked A. to the affidavit of L. M. filed the ,18 , which 
 
 exhibit is to be filed with this certificate] . 
 
 The evidence produced, &c. 
 
 The first schedule above referred to. 
 
 Name and address of the 
 Purchaser. 
 
 No. of 
 Lot. 
 
 Price. 
 
 Deposit. 
 
 Balance remaining 
 unpaid. 
 
 Edward Thornton, ofj 
 Epping, Essex, Far- 1- 
 mer . . .J 
 
 Thomas Edward Mas- "j 
 son, of Ilford, Essex, >- 
 Esquire . . . .) 
 
 I 
 6 
 
 900 
 750 
 
 90 
 
 75 
 
 £ 
 810 
 
 67s 
 
 Totals 
 
 ;^i650 
 
 ^165 
 
 .^1485 
 
 
 The second schedule above referred to. 
 \_Set out the particulars of each lot sold, as i?i the printed particulars of said (^)-J 
 
 IX. DISTRESS FOR RENT. 
 
 I, J. N., of , in the county of , landlord of the premises here- 
 
 inafter mentioned, hereby authorize and require you, A. B., of , in the 
 
 county of , to distrain the goods, chattels and effects in and upon the 
 
 house and premises, in the occupation of C. D., situate and being [No. , 
 Street], in the parish of , in the county of , for ^f , being 
 
 the amount of quarters' ren,t due to me for the same [at Lady-day] last; 
 
 and to proceed thereon as bailiff for the recovery of the said rent as the law allows. 
 But I expressly prohibit you from taking any property not legally liable to a. dis- 
 tress for rent. 
 
 day of 
 
 Dated this 
 
 ,18 . 
 
 (Signed) 
 
 J.N. 
 
 • {d) This schedule is, of course, omitted, where the printed particulars are filed with 
 the certificate. 
 
PART II.] DISTRESS FOR RENT. 389 
 
 I, J. N., of , in the county of , landlord of the premises here- 
 
 inafter mentioned, hereby authorize and require you, A. B., of , in the 
 
 county of , to distrain the goods, chattels and effects [and also the cattle 
 
 and growing crops] in and upon the farms, lands and premises in the occupation 
 of C. D., situate and being at , in the parish of , [continue as in 
 
 the preceditig form~\ . 
 
 3- 
 
 An Inventory 
 
 Of the several goods, chattels and effects [cattle and growing crops] distrained 
 for rent by A. B., of , as bailiff of and for J. N., of , Esq., on the 
 
 day of , 18 , in and upon the [house, outhouses, or farm, lands] 
 
 and premises in the occupation of C. D., situate and being [No. , 
 
 Street], in the parish of , in the county of , for £ , being 
 
 quarters' rent due to the said J. N. [at last, or on the day 
 
 of last]. 
 
 In the' dwelling house. 
 
 Ground floor. ' 
 
 Front room. — One dining table, six chairs [a// the other articles in this 
 
 room intended to be distrained"]. 
 Back room. — [Enumerate the articles in this room, intended to be distrained^ 
 [And so on for all the floors in the house.'] 
 
 In the yard. — [Emt-merate the articles intended to be distrained ; and con- 
 tinue with the stables, coach-house, out-houses, barns, garden, tS^<r.] 
 
 In the fields. 
 
 1. In the field known as "Black Acre." — Seven cows, three calves, six 
 
 oxen, one bull, &c. 
 
 2. In the field known as " Park Land." — One haystack, two stacks of wheat, 
 
 one stack of straw, about acres, more or less, of growing cropsn 
 
 of [wheat or barley, &'c., as the case may be] . 
 
 Dated this day of , 18 . 
 
 (Signed) A. B., of , 
 
 Bailiff of the above-named J. N. 
 
 4. Notices of Distress for Rent (a). 
 
 To C. D., and all others whom it may concern. 
 
 ■Take notice that I, A. B., as bailiff of and for J. N., Esq., your landlord, and by 
 his authority and on his behalf have this day distrained on the premises, in your 
 occupation or possession, named in the inventory above-written [or hereunto an- 
 nexed] the [cattle] goods, chattels and effects mentioned in the said inventory, 
 for £ , being the amount of quafters' rent due to the said J. N., at 
 
 last [or on the day of last] for the said premises ; and 
 
 unless you pay the said rent so due as aforesaid, with the charges of distraining 
 for the same, within five days from the service upon you of this notice, the said 
 [cattle] goods, chattels and effects will be appraised and sold according to law. 
 
 (a) To be written at the foot of a true copy of the inventory, or to have such 
 true copy annexed. 
 
390 FORMS AND PRECEDENTS. [PART II. 
 
 yif catlle or goods are reinoved, mention to what place, e.g., thus : "And take no- 
 tice further that the said cattle have been removed to, and are now in, the com- 
 mon poimd in and for the, parish of , in the county of ."] 
 
 Dated this day of , i8 . 
 
 (Signed) A. B., of 
 
 Bailiff of the above-named J. N. 
 
 5. Notice of Distress of Growing Crops. 
 
 To Mr. C. D., and all others whom it may concern. 
 
 Take notice that I, A. B., as bailiff of and for J. N., Esq., your landlord, have 
 this day distrained on the [farm, lands and] premises, in your occupation or pos- 
 session, named in the inventory [above-written or hereunto annexed] the [cattle, 
 goods, chattels and effects, and also the] growing crops, specified in the said 
 inventory, for the sum of _i^ , being the amount of quarters' rent 
 
 due to the said J. N. [at last or on the day of last] for 
 
 the said [farm, lands and] premises; and unless you pay the said rent so due as 
 aforesaid, with the charges for distraining for the same, within five days from the 
 service upon you of this notice, the [said cattle, goods, chattels and effects will be 
 appraised and sold according to law, and if the same be insufficient for the pay- 
 ment thereof, the] said J. N. will proceed to cut, gather, make, cure, carry and lay 
 up the said crops, when ripe, in the barn or other proper place upon the said 
 premises, and in convenient time to sell and dispose of the same, or a sufficient 
 part thereof, in or towards satisfaction of the said rent, and of the charges of such 
 distress, appraisement and sale, according to law. 
 
 Dated this day of , 18 . 
 
 (Signed) A. B., of 
 
 Bailiff of the above-named J. N. 
 
 6. The Appraisement. 
 
 We, the above- \or within-] named D. E. and E. F., appraisers, having in- 
 spected the [cattle] goods, chattels and effects {or growing crops] mentioned in 
 the above- \or within-] written inventory, do appraise and value the same at the 
 sum of pounds, shillings and pence. 
 
 As witness our hands, the day of ,18 
 
 (Signed) D- E. \ , 
 
 E F i Appraisers. 
 
 7- 
 
 Memorandum that C. D., of , whose goods and chattels have been 
 
 distrained and impounded for rent by J. N., his landlord, consents that the said 
 J. N., or some person for him, shall continue in possession of the said goods and 
 chattels in and upon the dwelling-house and premises of the said A. B. at 
 aforesaid for the space of days from the date hereof, the said J. N. having 
 
 at the request of the said C. D. agreed not to remove or sell the said goods and 
 chattels until the expiration of that time, and it being understood that the said 
 goods and chattels shall not be replevied, nor the said J. N, prejudiced by 
 the delay, and that the expenses of keeping the possession shall be paid by the 
 
PART II.] MISCELLANEOUS FORMS. 39 1 
 
 said A. B.; and the said A. B. further consents to allow days from the 
 
 date hereof for the sale of the said goods and chattels, and that such sale shall 
 and may take place on the premises of the said A. B. 
 Dated this day of , i8 . 
 
 (Signed) C. D. 
 
 8. Notice to Sheriff of Rent Due from Execution Debtor {b). 
 
 To G. H., sheriff of the county of , his under-sheriff and bailiffs, and all 
 
 others whom it may concern. 
 
 Take notice that the sum of £ , being the amount of [six months'] rent, due 
 on the day of last, is now owing to C. D., of , Esq., from 
 
 L. M., of , for the premises situate at &c., in the occupation of the said 
 
 L. M., upon which premises I am informed that you have taken certain goods and 
 chattels in execution ; and you are hereby required not to remove any of the said 
 goods and chattels from the said premises, until the said arrears of rent are paid. 
 
 Dated this day of , 18 . 
 
 (Signed) R. S., of , 
 
 Agent for L. M., of , Esq. 
 
 9. Notice to High Bailiff of County Court (<r). 
 
 To the high bailiff of the County Court of , holden at , his 
 
 bailiffs and officers, and all others whom it may concern. 
 
 Take notice that A. B., whose goods you have taken in execution under a war- 
 rant from the said County Court, holds the [house or apartments] in which the 
 said goods were taken as tenant thereof to C. D., of , Esq., under a [ten- 
 
 ancy from month to month from the first day of each month, at the monthly rent of 
 £ , payable in advance on the day of each month] ; and I now, as 
 
 the agent of and for the said C. D., and on his behalf, claim the sum of £ 
 for arrears of the said rent for two months ending on the day of 
 
 last, which said rent or sum of £ now remains in arrear and unpaid. 
 Dated the day of , 18 . 
 
 (Signed) E. F., of , 
 
 Agent for the above-named C. D. 
 
 X. MISCELLANEOUS FORMS. 
 
 I. Bond for Faithful Service of Clerk. 
 
 Know all men by these presents that We, A. B., of &c., and C. D., of &c. 
 [j««rt'«], are held and firmly bound unto E. F., of &c., and G. H., of &c. \_fart- 
 ners"], in the penal sum of £ [^double the amount secured'^ of lawful money 
 
 of Great Britain, to be paid to the said E. F. and G. H., or their certain attorney, 
 executors, administrators or assigns. For which payment to be well and truly 
 made we bind ourselves, and each of us jointly and severally our and each of our 
 heirs, executors and administrators, and every of them, firmly by these presents. 
 Sealed with our seals. Dated this day of , in the year 
 
 {b) Of. Woodf. S83. {c) See Woodf. 884. 
 
392 FORMS AND PRECEDENTS. [PART II. 
 
 of the reign of oui- Sovereign Lady Victoria, by the grace of God Queen of the 
 United Kingdom of Great Britain and Ireland, Defender of the Faith, and in the 
 year of our Lord, 1 8 
 
 Whereas the above-named \_pariners~\ have agreed to admit T. J. into their 
 sei-vice as clerk, and to retain and to continue him in such service (subject to 
 determination of the agreement on three months' notice by either party), on his 
 obtaining two respectable persons to become sureties for his duly and faithfully 
 accounting to them the said [partners'] and the survivors and survivor of them, 
 their and his executors and administrators, and other the person or persons who 
 shall or may have become partner or partners with them, or any or either of them, 
 and his and their executors and administrators, in manner hereinafter mentioned, 
 and for his faithful and honest conduct during the time of his continuance in the 
 service of the said [^partners, dr=(:,] ; and the said \_sureUes'] have, at the request 
 of the said T. J., agreed to become such sureties, and have for that purpose exe- 
 cuted the above-written bond or obligation. 
 
 Now the condition of the above-written obligation is such, that if the said T. J. 
 shall and do and from time to time, and at all times, well and satisfactorily account 
 for and pay over and deliver to the said \_partners, dr^f.] all and every siun and 
 sums of money and securities for money, goods and effects whatsoever, which he, 
 the said T. J., shall receive for their, or any or either of their use, or which shall 
 at any time or times be entrusted to his care by them, or any or either of them, or 
 of their correspondents or customers, or others to whom they, or any or either of 
 them, are, is or shall be liable or accountable ; and do not at any time embezzle, 
 make away with, obliterate, deface or in anywise injure any of the money, securi- 
 ties for money, books, papers, writings, goods or effects of them, or any or either 
 of them, or their, or any or either of their correspondents or customers, or others 
 [&^ir.] . Then and in such case the above- written obligation to be void and of no 
 effect ; otherwise to be and remain in full force and virtue. Provided always 
 nevertheless, and it is hereby declared, that each of the said \jureties\ is not to 
 be, nor are his executors or administrators, to be, separately liable for more than 
 [;^iooo] parcel of the said sum of [^^2000] mentioned in the said above-written 
 bond or obligation. Provided also, that each of the said \_sureties'\ shall be at Ub- 
 erty to put an end to his liability on the above bond or obligation on giving to 
 the said [/a?-/«f«], their executors or administrators, six months' notice in writing 
 of the intention so to do. 
 
 Sealed and delivered by the above bounden "I A. B. (l. s. 
 
 A. B. and C. D. in the presence of / C. D. (l. s.' 
 
 ki. Bought and Sold Notes. 
 
 a. Common Contract Note. 
 
 17, Exchange Buildings, Liverpool, 
 1st January, 18 . 
 Mr. W. F. 
 
 We have this day bought \or sold] for you the following goods : — 
 
 £ s. , 
 I Cask, &c. Insetting' out the goods'] ...... 
 
 Customary allowances ......... 
 
 Payment, cash in fourteen days, 
 
 less 2 J per cent 
 
 £. 
 
 Yours respectfully, 
 
 A. and B. 
 
PART II.J MISCELLANEOUS FORMS. 393 
 
 b. Stockbroker's Bought and Sold Notes. 
 
 No. , Old Broad Street, London, E.G., 
 , June, 18' . 
 Bought for Mr. 
 (Subject to the Rules and Regulations of the London Stock Exchange.) 
 
 £ '■ d. 
 (^Securities bought) .... . . 
 
 Brokerage . . . . 
 
 For account, inst. . .... 
 
 £ 
 
 (Signed) A. and B., 
 
 Stockbrokers. 
 
 No. , Old Broad Street, London, E.G. 
 Sold for Mr. 
 (Subject to the Rules and Regulations of the London Stock Exchange.) 
 
 £ .. d. 
 
 {Securities sold^ . . ... 
 
 Brokerage .... ... . . 
 
 £ 
 
 (Signed) A. and B., 
 
 Stockbrokers. 
 For settlement , before which day you would oblige by forwarding 
 
 [certificates or stock coupons], that the transfer may be correctly prepared. 
 
 3. Warranty of m Horse. 
 
 Received of Mr. A. B. the sum of ;^63 for a bay gelding, warranted five years 
 old and no more, and sound in every respect, quiet to ride, and drive in single or 
 double harness, and free from vice. 
 
 £(>Z. C. D. 
 
 [Receipt stamp.] 
 
 4. Common Delivery Order. 
 
 To Messrs. A. and W., Thames Street. 
 
 Please to weigh and deliver to Mr. A. B., or order, the under-mentioned goods 
 \_Insert the particulars']; charges from the to be paid by Mr. A. B. 
 
 Fenchurch Street, C. D. 
 
 1st January, 18 . 
 
 5. Warrant of Transfer. 
 
 Number of Order, 105. Ship's rotation. No. 9. 
 
 West India Dock Warehouse, No. 8. 
 
 Warrant for chests, lot , of tea, imported in the ship N., A. D., 
 
 master; entered by A. B. on the 1st January, 18 . 
 
 N.B. — Rent commences January, 18 . 
 
 Examined and entered, the day of Cargo ledger, 10, folio 343. 
 
 T. R., Clerk. 
 
394 FORMS AND PRECEDENTS. [pART II. 
 
 No. Deliver the above-mentioned goods to C. D. or assigns by in- 
 
 dorsement hereon. A. B. 
 
 N.B. — This order must be presented at the West India Dock House, regularly 
 assigned by indorsement ; and all charges are to be paid before the goods are 
 taken away. 
 
 6. Notice that Interest vfill be Claimed upon a Debt. 
 
 Sir, — I hereby demand of .you immediate payment of the sum of ;C > 
 
 due to me from you in respect of [the goods which I forwarded to you on the 
 day of last] ; and I give you notice that I shall claim from you 
 
 interest upon the said debt after the rate of ^ per cent, per annum from 
 
 the date of this demand until actual payment of the said debt; and I require you 
 to pay such interest accordingly. 
 Dated, &c. 
 
 (Signed) A. B. 
 
 To Mr. 
 
 7. Notice to Pay Rent to Mortgagee. 
 
 To Mr. C. D. 
 
 Sir, — Take notice, that, on the day of , &c., the premises 
 
 situate &c., now in your occupation, and held by you as tenant under A. G., of 
 &c., were duly conveyed and mortgaged to me, for securing the repayment of 
 £, and interest after the rate of £ per cent, at a certain day now past, 
 
 and that such principal sum, with an arrear of interest, is still due and unpaid 
 from the said A. G. to me. I therefore give you notice not to pay any rent now 
 due, or hereafter to become due from you, for the said premises, to the said A. G., 
 or any other person than to me, or to whom I shall appoint, and to pay the same 
 to me or such person accordingly. Dated, &c. 
 
 8. Notice of an Equitable Mortgage by Deposit. 
 
 Sir, — Take notice that Messrs. A. & Co., of &c., have deposited in my pos- 
 session, as a lien and equitable mortgage, certain deeds and documents consti- 
 tuting their title, and evidence of their right, to an estate situate &c., to secure the 
 repayment of £ , and lawful interest [and also all further advances and 
 
 interest thereupon]. You will, therefore, take notice of this my interest in and 
 claim upon this estate, so that I may at all times retain, and have a preference 
 against, all or any subsequently-created interest or charge ; but, until notice to the 
 contrary, you are at liberty to pay your rent to Messrs. A. & Co. Dated, &c. 
 
 9. Notice to Repair. 
 
 Sir, — Pursuant to a covenant contained in the indenture of lease, executed by 
 me to you, bearing date on or about the day of , 18 , I hereby 
 
 give you notice, and require you, to put the [messuage or dwelling-house] thereby 
 demised in complete and substantial repahr, and particularly that you \_Enumerate 
 particular repairs wanied~\. As witness my hand, this day of ,18 
 
 To Mr. C. D. A. B. 
 
PART II.J MISCELLANEOUS FORMS. 395 
 
 10. Notice to Quit by Landlord to Tenant. 
 
 Sir, — As agent for J. H., Esq., your landlord, and on his behalf, I hereby give 
 you notice and require you to quit and deliver up the possession of the messuage 
 or dwelling-house [or rooms and apartments, or farm, lands and premises], with 
 the appurtenances, which you now hold as tenant of the said J. H., in the parish 
 of , in the county of , on the day of next, [or 
 
 at the expiration of the current year of your tenancy, which will expire next after 
 the end of one half-year from the date of this notice]. 
 Dated this day of , l8 . 
 
 To Mr. C. D. A. B., of 
 
 Agent for the above-named J. H., Esq. 
 
 11. Notice to Quit by Tenant to Landlord. 
 
 Sir, — I hereby give you notice of my intention to quit, and that I shall, on the 
 day of next, quit and deliver up the possession of the dwelling- 
 
 house and premises, situate at , which I now occupy as tenant under you. 
 
 Dated this day of , 18 . 
 
 To Mr. C. D. A. B. 
 
 12. Notice under a Power to Determine a Lease for Twenty-one Years 
 at the Expiration of the First Seven Years. 
 
 To . — Whereas, by a certain indenture of lease, bearing date &c., and 
 
 made between &c., I, the said A. B., for the consideration therein mentioned, did 
 demise and lease to you, C. D., your executors, administrators and assigns, a cer- 
 tain messuage &c., situate &c., to hold for the term of twenty-one years thence 
 next ensuing, determinable nevertheless as therein and hereinafter mentioned; in 
 which said indenture is contained a proviso that &c. [_Siate proviso] : Now I, the 
 said A. B., in pursuance of the power given me by the said proviso, do hereby 
 give you notice that it is my mind and intention to avoid and determine, and that 
 I do hereby avoid and determine, the said indenture of lease, and the demise 
 therein contained, at the end of the first seven years of the said term of twenty- 
 one years thereby granted. Dated this day of ,18. 
 
 (Signed) A. B. 
 
 13. Notice of Tenant's Intention to Remove Building. 
 
 Sir, — In pursuance of the provisions of the statute 14 & 15 Vict. c. 25, s. 3, 
 I, C. T., of &c., tenant of the farm [or lands] situate &c. whereon is erected [a 
 granaiy], which [granary] was erected by me at my own cost and expense, with 
 the consent in writing required by the said statute, do hereby give you notice that, 
 at the expiration of one month from the date hereof, unless you previously elect 
 to purchase the same as empowered by the said statute, I shall remove the said 
 [granary] in manner authorized by the said statute. Dated, &c. 
 
 To A. B., Esq. 
 
 14. Notice of Landlord's Election to Purchase Building. 
 
 Sir, — -I, the undersigned E. F., as agent for, and by the authority of, A. B., 
 Esq., youj landlord, do hereby, on behalf of the said A. B., elect to purchase the 
 
39^ FORMS AND PRECEDENTS. [PART II. 
 
 building specified in your notice of &c.; and I give you notice of the choice of 
 Mr. G. H., of &c., to be referee of the said A. B., to ascertain and determine the 
 value of the said building, pursuant to the statute in such case made and provided. 
 Dated, &c. 
 
 To Mr. C. T. E. F. 
 
 15. Notice of Appointment of Referee. 
 
 Sir, — I, C. T. [A. B.], of &c., do hereby give you notice that I have chosen 
 Mr. I. K., of &c., to be my referee in the matters referred to in my [your] notice 
 to you [me], dated &c., and given pursuant to the statute 14 & 15 Vict., c. 25, s. 3. 
 And I require you to choose a referee on your part, agreeably with the provisions 
 of the said statute. Dated, &c. 
 
 To &c. C. T. 
 
APPENDIX. 
 
 APPENDIX A. — STATUTES. 
 
 LICENCES. 
 
 6 GEO. IV. c. 8i. 
 
 An Act to repeal several duties payable on excise licences in Great Britain and 
 Ireland, and to impose other duties in lieu thereof; and to amend the laws 
 for granting excise licences. [27th June, 1825.] 
 
 7. That in every licence to be taken out under or by authority of this act shall 
 be contained and set forth the purpose, trade or business for which such licence 
 is granted, and the true name and place of abode of the person or persons taking 
 out the same, and the true date or time of granting such licence, and, except 
 in the case of auctioneers, the place at which the trade or business for which 
 such licence is granted shall be carried on. Provided always that persons in part- 
 nership, and carrying on their trade or business in one place and set of premises 
 only, shall not be obliged to take out more than one licence in any one year for 
 the purpose of carrying on such trade or business, save and except that each and 
 every person whatsoever exercising or carrying on the trade or business of an 
 auctioneer, or acting as such, shall take out a separate and distinct licence for that 
 purpose, anything herein contained to the contrary thereof notwithstanding. 
 
 10. That no one licence taken out under or by authority of this act by any 
 person or persons, except auctioneers and maltsters, shall authorize or empower 
 such person or persons to exercise or carry on the trade or business mentioned in 
 such licence in more than one separate and distinct set of premises, such premises 
 being all adjoining or contiguous to each other, and situate in one place, and held 
 together for the same trade or business, and of which he, she or they shall have 
 made lawful entry to exercise or carry on therein his, her or their trade or busi- 
 ness as aforesaid at the time of granting such licence ; but that a separate and 
 distinct licence shall be taken out by all and every such person or persons as afore- 
 said, except as aforesaid, to exercise or carry on his, her or their trade or business 
 as aforesaid at or in any other or different premises than as before mentioned : 
 Provided always that, where the amount or rate of any such licence shall depend 
 upon the quantity of goods made or manufactured by the person or persons to 
 whom the same is granted, such quantity shall be computed from the respective 
 goods only made or manufactured by such person or persons at the premises in 
 respect of which such licence is granted, and shall not include goods made or 
 manufactured by such person or persons at any other or different premises for 
 which a separate and distinct licence is required as above mentioned. 
 
 12. That it shall not be necessary for any person or persons to take out an ex- 
 cise licence for the sale of any foreign goods or commodities for the sale of which 
 
398 APPENDIX. 
 
 in any manner an excise licence is required by this act, whilst such goods or com- 
 modities shall be or remain in the warehouse or warehouses in which the same 
 shall have been deposited, lodged or secured according to law before payment of 
 duty upon the importation thereof, anything in this or any other act to the con- 
 trary thereof in any wise notwithstanding. Provided always that every such sale 
 shall be of not less than one entire cask or package of the liquors or goods so 
 warehoused, and be made to one person or to persons carrying on trade or busi- 
 ness in partnership. 
 
 21. That upon the death of any person or persons licensed under or by virtue 
 of this act or any law or laws of excise, or upon the removal of any such person 
 or persons from the house or premises at which he, she or they were authorized 
 liy such Hcence to exercise or carry on the trade or business mentioned in such 
 licence, it shall and may be lawful for the person and persons authorized to grant 
 licences to authorize and empower, by indorsement on such licence, or otherwise, 
 as the commissioners of excise shall direct, the executors or administrators, or the 
 wife or child, of such deceased person, or the assignee or assigns of such person 
 or persons so removing as aforesaid, who shall be possessed of and occupy the 
 house or premises before used for such purpose as aforesaid, in like manner to 
 exercise or carry on the same trade or business mentioned in such licence, in or 
 upon the same house or premises at which such person or persons as aforesaid 
 deceased or removing as before mentioned, by virtue of such licence to him, her 
 or them in that behalf granted, exercised or carried on such trade or business, for 
 and during the residue of the term for which such licence was originally granted, 
 without taking out any fresh licence or payment of any additional duty or any fee 
 thereupon, for the residue of such term and until expiration thereof. Provided 
 always that a fresh entry of the premises at which such trade or business .shall 
 continue to be so exercised or carried on as aforesaid shall thereupon be made by 
 and in the name or names of the person or persons to whom such authority as 
 aforesaid shall be granted; and provided also that no such authority as aforesaid 
 shall be granted for the sale of beer, cyder or perry, or sweets, or made wines or 
 sweets^ mead or metheglin, by retail, to be drank or consumed in or upon the 
 house or premises for which the original licence was granted, except and in such 
 cases where a proper certificate, granted and given by a justice of the peace or 
 magistrate, or other competent person according to the law, made after the death 
 or removal of the former occupier or occupiers of the premises shall have taken 
 place, shall be produced, approving of the person or persons to whom such cer- 
 tificate shall be granted or given as aforesaid. 
 
 25. That all and every person or persons in the United Kingdom required by 
 any law or laws of excise to make entry of his, her or their premises in order to 
 carry on therein any trade or business for which an excise licence is required, and 
 who shall have taken out such licence, shall paint or cause to be painted, or shall 
 place and fix, in letters publicly visible and legible and at least one inch long, in 
 and upon his, her or their entered premises his, her or their names respectively at 
 full length, or, where there are partners or more than one person engaged in 
 carrying on jointly the same trade or business, the name or style of the firm or 
 partnership, and after such name or names the word " licensed," adding thereto 
 the words necessary to express the purpose, or trade, or business, for which such 
 licence has been granted; and such person or persons shall cause such letters to 
 be painted, or placed and fixed, in some conspicuous place on the outside of the 
 front of his, her or their said premises, over the principal outward door or gate, or 
 entrance door, thereto, and not more than three feet from the top of such outward 
 door or gate, or entr.ince door; and if any such person or persons as aforesaid 
 shall not paint, or place and fix, such letters as aforesaid, or shall not preserve 
 
STATUTES. 
 
 399 
 
 and keep the same so painted, placed and fixed, or shall not repaint or renew the 
 same as often as necessity shall require for the purpose of keeping the same in 
 good order and condition, during the continuance of his, her or their licence, he, 
 she or they shall forfeit for every such offence the sum of twenty pounds; and if 
 any person or persons not being licensed to exercise or carry on any trade or 
 business for which a licence is required by this act, shall put or have any such 
 letters as aforesaid upon his, her or their premises, or any letters importing that 
 he, she or they does or do exercise or carry on any such trade or business, or is 
 or are licensed so to do, all and every such person or persons shall for every such 
 offence forfeit the sum of twenty pounds. 
 
 28. That if any person or persons licensed to exercise or carry on any trade or 
 business, or make or sell any goods, for which an excise licence is required, shall 
 not produce and deliver such licence to be read and examined by any officer or 
 officers of excise within a reasonable time after such officer or officers shall de- 
 mand the production thereof, such person or persons shall for each and every such 
 offence forfeit the sum of twenty pounds. 
 
 8 & 9 VICT. c. 15. 
 
 An Act to repeal the duties of excise on sales by atution, and to impose a new 
 duty on the licence to be taken out by all auctioneers in the United King- 
 dom. [8th May, 1845.] 
 By this act. 
 
 After reciting that by 6 Geo. IV. c. 81, a certain duty of excise is imposed for 
 and upon every licence to be taken out by every person exercising or carrying on 
 the trade or business of an auctioneer, or selling any goods or chattels, lands, 
 tenements or hereditaments by auction; and by a regulation in the said last-re- 
 cited act, and by certain other acts relating to the duties of stamps, auctioneers 
 are required in certain cases to take out separate and distinct licences for selling 
 particular goods and chattels by auction, in addition to their auctioneer's licence; 
 and that certain duties of excise upon the purchase-money arising or payable by 
 virtue of any sale at auction in Great Britain and Ireland are imposed and regu- 
 lated by several acts, that is to say, by 43 Geo. III. c. 69, 45 Geo. III. u. 30, 54 
 Geo. III. c. 82, 55 Geo. III. c. 142, and by several other acts for altering or 
 amending the said recited acts or some of them ; and that it is expedient that the 
 said last-mentioned duties and all duties now imposed upon or for or in respect of 
 auctioneers or auctions, and all acts, clauses, provisions and regulations now in 
 force relating thereto, should cease, save and except as after mentioned : 
 
 It is enacted : — 
 
 1. That from and after the passing of this act the said last-mentioned duties 
 and all duties of excise now payable in Great Britain or Ireland upon or for or in 
 respect of auctioneers and auctions or sales by auction, and all and every act or 
 acts of excise, and all clauses, provisions, exemptions, penalties and things in any 
 act of excise in force in Great Britain and Ireland respectively at or immediately 
 before the passing of this act, relating to auctions or to duties on sales by auction, 
 or to any auctioneers, save only such clauses, provisions, exemptions, penalties, 
 and things as are contained in the said recited act 6 Geo. IV. c. 81, and are not 
 repealed or altered by this act, are hereby repealed [except for the purpose of 
 recovering duties, fines, c&c, or allowing exemptions which have been incurred 
 or become due or allowable before the passing of the act] . 
 
 2. That from and after the passing of this act there shall be raised, levied, col- 
 
400 APPENDIX. 
 
 lected and paid to Her Majesty, her heirs and successors, in lieu of all duties now 
 imposed on licences to be taken out by auctioneers throughout the United King- 
 dom, the following annual sum or duty of excise, that is to say : for and upon 
 every licence to be taken out by every person exercising or carrying on the trade 
 or business of an auctioneer in any part of the United Kingdom, the sum of ten 
 pounds. 
 
 3. That the said duty hereby imposed shall be under the management of the 
 commissioners of excise («) and shall be collected, paid and accounted for in the 
 same manner as the other duties of excise, and shall be charged, raised, leWed, 
 sued for and paid under the provisions of this act, and the general or special pro- 
 visions, clauses, enactments, regulations, pains, penalties and forfeitures contained 
 in any act or acts relating to the collection and management of the revenue of 
 excise; and all penalties by this act imposed shall be prosecuted, recovered and 
 applied as any other penalties under the laws of excise. 
 
 4. That every person who exercises or carries on the trade or business of an 
 auctioneer or who acts in such capacity at any sale or roup, and every person who 
 sells or offers for sale any goods or chattels, lands, tenements or hereditaments, 
 or any interest therein, at any sale or roup where any person or persons become 
 the purchaser of the same by competition and being the highest bidder, either by 
 being the single bidder, or increasing upon the biddings made by others, or de- 
 creasing on sums named by the auctioneer or person acting as auctioneer, or other 
 person at such sale, or by any other rriode of sale by competition, shall (except as 
 hereinafter in this act mentioned) be deemed to carry on the trade or business of 
 an auctioneer and shall be required to take out such licence as by this act di- 
 rected; and every such licence shall be renewed annually ten days at least before 
 the expiration thereof, on the fifth day of July in each and every year; and every 
 auctioneer having had such a licence who continues to carry on the trade or busi- 
 ness of an auctioneer in the year next ensuing the expiration thereof, and omits 
 to renew the same as aforesaid, and eveiy person who carries on the trade or 
 business of an auctioneer as aforesaid, without taking out such licence as by this 
 act directed, shall (except as hereinafter in this act mentioned) forfeit one hun- 
 dred pounds : Provided always [that auctioneers who have licences in force at 
 the passing of this act, and which licences do not expire until the fifth day of July 
 now next ensuing, shall not be required to take out the licence by this act directed 
 for the purpose of carrying on the business of an auctioneer, until ten days before 
 the expiration of their current licences, but that every such auctioneer may, at any 
 time within the last quarter of the current year to expire on the said fifth day of 
 July, take out the licence by this act directed, on payment of a fourth part of the 
 duty imposed on such last-mentioned licence ; but (^)] that on every such licence 
 taken out after the said fifth day of July, at whatever period of the year, the full 
 duty of excise by this act imposed shall be paid, any other act or acts to the con- 
 trary thereof notwithstanding. 
 
 5. That it shall not be necessary for any person selling any goods or chattels 
 by auction in any of the cases hereinafter mentioned to take out the licence by 
 this act required : Any person selling any goods or chattels by auction under a 
 distress for non-payment of rent or tithes to less amount than twenty pounds; or 
 under authority of 6 Geo. IV. c. 48; 6 & 7 Will. IV. c. 75 (c) ; 7 Will. IV. & i 
 Vict. c. 43 (^) ; 7 Will. IV. & I Vict. c. 41, or under authority of any other act or 
 acts of Parliament now in force in which the like exemption as by the act specified 
 
 (a) Now of the Commissioners of In- (^) The words in brackets are repealed: 
 
 land Revenue : 12 & 13 Vict. c. i. Statute Law Revision Act, 1875. 
 
 (c) See note (?), p. 11, anie. 
 
STATUTES. 401 
 
 •is given to the proper officer of court executing the process of such court to sell 
 the effects seized by him by auction, without taking out or having any licence as 
 an auctioneer, provided the sum for which such process is enforced is under 
 twenty pounds (i/). 
 
 6 {e). That so much of the said recited act of 6 Geo. IV. c. 81, as enacts 
 " that every person exercising or carrying on the trade or business of an auction- 
 eer, or selling any goods or chattels, lands, tenements or hereditaments by auction 
 shall, over and above any licence to him or her granted as an auctioneer, take out 
 such licence as is required by law to deal in or retail, or to vend, trade in or sell 
 any goods or commodities for the dealing in or retailing or vending, trading in or 
 selling of which an excise licence is specially required, before he or she shall be 
 permitted or authorized to sell such goods or commodities by auction ; and if any 
 such person shall sell any such goods or commodities as aforesaid by auction with- 
 out having taken out such licence as aforesaid for that purpose, he or she shall 
 be subject and liable to the penalty in that behalf imposed upon persons dealing 
 in or retaiUng, vending, trading, or selling any such goods or commodities \vith- 
 out Ucence, notwithstanding any Hcence to him or her before granted as aforesaid 
 for the purpose of exercising or carrying on the trade or business of an auctioneer, 
 or selling any goods or chattels, lands, tenements or hereditaments by auction, 
 anything herein contained to the contrary notwithstanding," together with the 
 proviso thereto attached, and so much of any other act or acts of pai-liament by 
 which it is required that a separate and distinct licence shall be taken out by any 
 auctioneer selling by auction gold or silver plate or patent medicines, or any other 
 articles, are hereby repealed ; and any auctioneer having at the time in force a 
 Ucence on which the duty under the provisions of this act has been paid may sell 
 by auction any such property, goods or commodities, without taking out any other 
 licence in such respect, any other act or acts to the contrary thereof notwith- 
 standing. 
 
 7. That every auctioneer, before beginning any auction, shall affix or suspend, 
 or cause to be affixed or suspended, a ticket or board containing his true and full 
 christian and surname and residence, painted, printed or written in large letters, 
 publicly visible and legible, in some conspicuous part of the room or place where 
 the auction is held, so that all persons may easily read the same, and shall also 
 keep such ticket or board so affixed or suspended during the whole time of such 
 auction being held ; and if any auctioneer begins any auction, or acts as auction- 
 eer at any auction, in any room or place where his name and residence is not so 
 painted or written on a ticket or board so affixed or suspended, and kept affixed 
 or suspended as aforesaid, he shall forfeit for every such offence the sum of twenty 
 pounds. 
 
 8. That, if any person acting as an auctioneer, and by this act required to take 
 out a licence as a person exercising or carrying on the trade or business of an 
 auctioneer, does not at the time of any sale by auction, on demand of any officer 
 of excise or customs, or any officer of stamps and taxes, produce and show to such 
 officer a proper licence to him granted under this act, and then in force, or does 
 not immediately deposit with such officer the sum of ten pounds, every such per- 
 son may be arrested and detained by any officer of the peace, as hereinafter men- 
 tioned ; and every officer of the peace shall, at the request of any such officer as 
 first aforesaid, at the termination of such sale, br sooner, if convenient, arrest and 
 convey such person before some one of Her Majesty's justices of the peace of the 
 county or place where such sale has been held, and such justice shall examine 
 
 {d) See note {</), p. 11, ante. it relates to the repeal of part of 6 Geo. 
 
 [e) This section is repealed, so far as IV. c. 81 : Stat. Law Rev. Act, 1875. 
 
402 APPENDIX. 
 
 into the fact or facts charged, and, upon proof, either by confession of the party 
 offending, or by the oath of one or more credible witness or witnesses (which oath 
 the said justice is hereby empowered to administer), that the person so brought 
 before him did act as an auctioneer as aforesaid, and did not produce such licence, 
 or deposit such sum of money as aforesaid, shall, by warrant under his hand, com- 
 mit such offender to the common gaol or house of correction for the county or 
 place where the said sale has been held, for any time not exceeding one calendar 
 month from the day of such commitment; and no such imprisonment, nor the 
 deposit of such sum of money as aforesaid, shall in any manner prejudice or affect 
 any proceedings afterwards instituted for recovery of the penalty incurred by such 
 person for acting as an auctioneer at such sale as aforesaid without the licence by 
 this act directed; but if any person having so deposited such sum of money as 
 aforesaid, at any time before the expiration of one week from the date of such 
 sale as aforesaid, produces to the ofiicer with whom he deposited the same a proper 
 licence to him granted and in force as an auctioneer before and at such sale, every 
 such officer shall immediately thereupon repay to such person the full sum so de- 
 posited with him; if otherwise, every such officer shall, at the expiration of the said 
 week, account for all such money to the commissioners of excise, or such person 
 as they may appoint to receive the same. 
 
 46 GEO. III. c. 43. 
 
 Ak Act for granting to His Majesty certain stamp duties on appraisements and 
 on licences to appraisers (y) i?i Great Britain. 
 
 [5 May, 1806.] 
 
 4. That every person who shall value or appraise any estate or property, real 
 or personal, or any interest, in possession or reversion, remainder or contingency, 
 in any estate or property, real or personal, or any goods, merchandise or effects, 
 of whatsoever kind or description the same may be, for or in expectation of any 
 hire, gain, fee or reward or valuable consideration to be therefor paid him shall 
 be deemed and taken to be an appraiser within the provisions of this act to all 
 intents and purposes. 
 
 [5. Appraisers shall take out annual licences from 5th July, to be granted by 
 commissioners of stamps &c.] 
 
 6. That from and after the 5th day of July, 1806, no person shall appraise or 
 value any estate, or property or effects, real or personal, or any interest, in pos- 
 session or reversion, remainder or expectancy, in any estate or property, real or 
 personal, for or in expectation of hire or reward, without being so licensed as 
 aforesaid, on pain of forfeiting for every such offence the sum of fifty pounds. 
 
 7. Provided always that all persons who shall be duly licensed according to 
 law to act as auctioneers shall and may act as appraisers, without taking out any 
 other licence in pursuance of this act, anything in this act contained to the con- 
 trary notwithstanding. 
 
 (/) The duty on the licence is now an excise duty : 27 & 2B Vict. c. 56, s. 6. 
 
STATUTES. 
 
 403 
 
 8 & 9 VICT. c. 76. 
 
 An Act to increase the stamp {£) duty payable on licences to appraisers, Qfic. 
 
 [4th August, 1845.] 
 
 I. That from and after the passing of this act the said duty now payable in 
 Great Britain and Ireland respectively under or by virtue of the said several re- 
 cited acts, or any of them, for or in respect of a licence to use and exercise the 
 calling or occupation of an appraiser shall cease and determine, and the same is- 
 hereby repealed; and that in lieu thereof there be granted, raised, levied, col- 
 lected and paid in Great Britain and Ireland respectively unto and for the use of 
 Her Majesty, her heirs and successors, the duty of ;^2 for and in respect of a 
 licence to use and exercise the calling or occupation of an appraiser, to be taken 
 out yearly by every person (except a licensed auctioneer (1^)), who shall exercise 
 the said calling or occupation of an appraiser, or who, for or in expectation of any 
 gain, fee or reward, shall make any appraisement or valuation chargeable by law 
 with any stamp duty. 
 
 30 & 31 VICT. c. 48. 
 
 An Act for amending the law of auctions of estates. 
 
 [15th July, 1867.] 
 
 1. This act may be cited for all purposes as the " Sale of Land by Auction Act, 
 1867." 
 
 2. This act shall commence and take effect on the first day of August, 1867. 
 
 3. " Auctioneer " shall mean any person selling by public auction any land, 
 whether in lots or otherwise : 
 
 " Land " shall mean any interest in any messuages, lands, tenements or heredi- 
 taments, of whatever tenure : 
 
 " Agent " shall mean the solicitor, steward or land agent of the seller : 
 " Puffer " shall mean a person appointed to bid on the part of the owner. 
 
 4. And whereas there is at present a conflict between Her Majesty's courts of 
 law and equity in respect of the validity of sales by auction of land where a puffer 
 has bid, although no right of bidding on behalf of the owner was reserved, the 
 courts of law holding that all such sales are absolutely illegal, and the courts of 
 equity under some circumstances giving effect to them, but even in courts of 
 equity the rule is unsettled; and whereas it is expedient that an end should be 
 put to such conflicting and unsetded opinions : be it therefore enacted that, from 
 and after the passing of this act, whenever a sale by auction of land would be 
 invalid at law by reason of the employment of a puffer, the same shall be deemed 
 invalid in equity as well as at law. 
 
 5. And whereas, as sales of land by auction are conducted, many of such sales 
 are illegal, and could not be enforced against an unwilling purchaser, and it is 
 expedient for the safety of both seller and purchaser that such sales should be so 
 conducted as to be binding on both parties : be it therefore enacted by the au- 
 thority aforesaid as follows : that the particulars or conditions of sale by auction 
 of any land shall state whether such land will be sold without reserve, or subject 
 to a reserved price, or whether a right to bid is reserved; if it is stated that such 
 land will be sold without reserve, or to that effect, then it shall not be lawful for 
 the seller to employ any person to bid at such sale, or for the auctioneer to take 
 knowingly any bidding from any such person. 
 
 6. And where any sale by auction of land is declared either in the particulars 
 
 (^) See preceding note. 
 
 (A) Add, " or house agent " ; 24 & 25 Vict. c. 21, s. 11. 
 
404 APPENDIX. 
 
 or conditions of such sale to be subject to a right for the seller to bid, it shall be 
 lawful for the seller or any one person on his behalf to bid at such auction in such 
 manner as he may think proper. 
 
 7. And whereas it is the long-settled practice of courts of equity in sales by 
 auction of land under their authority to open biddings even more than once, and 
 much inconvenience has arisen from such practice, and it is expedient that the 
 courts of equity should no longer have the power to open biddings after sales by 
 auction of land under their authority : be it further enacted by the authority afore- 
 said that the practice of opening the biddings on any sale by auction of land under 
 or by virtue of any order of the High Court of Chancery shall, from and after the 
 time appointed for the commencement of this act, be discontinued, and the highest 
 bond fide bidder at such sale, provided he shall have bid a sum equal to or higher 
 than the reserved price (if any), shall be declared and allowed the purchaser, un- 
 less the court or judge shall, on the ground of fraud or improper conduct in the 
 management of the sale, upon the application of any person interested in the land 
 (such application to be made to the court or judge before the chief clerk's certifi- 
 cate of the result of the sale shall have become binding), either open the biddings, 
 holding such bidder bound by his bidding, or discharge him from being the pur- 
 chaser, and order the land to be resold upon such terms as to costs or otherwise 
 as the court or judgo shall think fit. 
 
 8. Except as aforesaid, nothing in this act contained shall affect any sale of 
 land made under or by virtue of any order of the High Court of Chancery in Eng- 
 land, of the High Court of Chancery in Ireland, or of the Landed Estates Court 
 there, or of the Court of Chancery in the County Palatine of Lancaster, or of any 
 county or other court having jurisdiction in equity. 
 
 9. This act shall not extend to Scotland. 
 
 ALAB.\M.\. — Revised Code, 1S76. 
 
 § 369. There shall also be assessed by the the assessor in each county on the 
 following subjects and at the following rates, to wit : 
 
 I. On the gross amount of sales at auction made in or during the tax year pre- 
 ceding the assessment, of goods, wares or merchandise owned by non-residents, 
 each auctioneer shall be assessed and shall pay a tax of one-fourth of one per 
 cent., and a like tax on all sales made by him of property owned by citizens of 
 this state which has been imported into the state and sold at auction before the 
 same has been assessed for taxes as other property; but on sales of goods, wares, 
 merchandise, and fruits by cargo, the rate of taxation shall be one-eighth of one 
 per cent. 
 
 § 2122. When lands, tenements or hereditaments are sold or leased at public 
 auction, and the auctioneer, his clerk or agent, makes a memorandum of the prop- 
 erty, and the price thereof at which it is sold or leased, the terms of sale, the 
 name of the purchaser or lessee, and the name of the person on whose account 
 the sale or lease is made, such memorandum is a note of the contract, within the 
 meaning of the preceding section [the statute of frauds]. 
 
 ARIZON.V. — -Compiled Laws, 1877, 3102. 
 
 § I. All persons engaged in business as auctioneers, or who shall sell or dis- 
 pose of property of any description at public outcry, shall pay a quarterly license- 
 tax of ten dollars : prov'ulL-d, that all sales made by officers pursuant to law shall 
 be e.Kempt from the provisions of this act. 
 
STATUTES. 
 
 40s 
 
 ARKANSAS. — Gantf's Digest, 1874. 
 
 § 510. No person shall exercise the trade or business of a public auctioneer by 
 selling any goods or other property subject to duty under this law, without a li- 
 cense to be issued according to law. 
 
 § 511. Every person who shall exercise the trade or business of an auctioneer 
 without a license shall forfeit for every sale five hundred dollars together with the 
 amount of duty payable on the property sold. 
 
 § 512. The penalty prescribed in the last preceding section shall be recovered 
 by action founded on this statute, one-half to the person prosecuting for the same, 
 and the other half for the use of the school fund. 
 
 § 513. Before any license shall be granted, the applicant shall give bond to 
 the state, in any sum not less than one nor more than three thousand dollars, with 
 one or more sufficient securities, the amount of the bond" and the sufficiency of 
 the security to be determined by the collector, with condition that he will, at each 
 session of the board of supervisors of the county for which he is auctioneer, render 
 to the board of supervisors of his county a true and particular account in writing 
 of the aggregate amount in money of all property subject to duty by this law sold 
 by him at auction, or at private sale at his auction-rooms, — that is to say, from 
 the date of the bond until the session of the board of supervisors next thereafter, 
 and from thenceforth from session to session of said board so long as he shall 
 continue to exercise the business of an auctioneer; and shall also pay all such 
 sums of money as shall be due to the county upon such sales to the collector 
 of the proper county ; and such bond shall be filed in the office of the county 
 clerk. 
 
 § 514. There shall be levied and paid upon all sales of property at auction, 
 except as hereinafter excepted, a tax or duty to the county at the following rates, 
 in proportion to the prices for which the same may be sold : 
 
 First. On all sales of personal property, one and one-half per centum. 
 Second. On all sales of real estate or leasehold interest in land, one-half of 
 one per centum. 
 
 § 515. In all cases where the auctioneer, or owner of any property sold, or any 
 person employed by either of them shall become the purchaser, such sale shall be 
 subject to the same duties as if any other person had become the purchaser. 
 
 § 516. All sales at auction of any part or parcel of any merchandise or any 
 other property, with a design to ascertain and fix a price for the whole or any part 
 thereof, without exposing the whole or such other part to public sale, shall be 
 deemed a sg.le at auction of the whole or such part of said property, the price of 
 which was designed to be fixed by such public sale of the part, and duties thereon 
 shall be paid accordingly. 
 
 § 5 1 7. Sales of property at auction shall be free of duty in the following cases : 
 
 First. When directed by any statute of the United States. 
 
 Second. In execution of any order, judgment or decree of any court or jus- 
 tice of the peace of this state or court of the United States. 
 
 Third. In cases of bankruptcy or insolvency pursuant to any law of this 
 state or of the United States. 
 
 Fourth. In consequence of any general assignment of property and effects 
 by any debtor for the benefit of his creditors. 
 
 Fifth. Property of deceased persons sold by authority of executors or ad- 
 ministrators. 
 
 Sixth. Boats, vessels, rafts, lumber, and other property wrecked, stranded 
 or found adrift on any of the waters of or adjoining this state. 
 
406 APPENDIX. 
 
 Seventh. Live stock, agricultural productions, farming utensils, and house- 
 hold and kitchen furniture sold at the residence of the owner. 
 Eighth. Land or leasehold interest therein sold on the premises. 
 
 § 518. The auctioneers shall pay over to the collectors of the proper county all 
 the duties imposed by this act, and for that purpose may retain the amount thereof 
 out of the proceeds of the property sold. 
 
 § 519. Auctioneers shall render their accounts in accordance with the condi- 
 tion of their bonds to the board of supervisors, and shall make oath before such 
 board to the best of their knowledge and belief to the truth of such accounts ren- 
 dered, in default of which such accounts shall not be deemed truly rendered 
 according to the condition of the bond. 
 
 § 520. Upon such account being rendered, the board of supervisors shall ascer- 
 tain the amount of the duties to be paid by the auctioneer, and give him a certifi- 
 cate thereof; and the auctioneer shall pay the same to the collector within twenty 
 days thereafter; and upon producing to the clerk the receipt of the collector for 
 the amount a quietus shall be given therefor. 
 
 § 521. The clerk of the county shall charge the collector with the amount 
 received, and certify the same to the treasurer without delay; and the treasurer 
 shall charge the collector accordingly. 
 
 § 522. When it shall appear to the satisfaction of the clerk of the board of 
 supervisors that any auctioneer has fulfilled the condition of his bond and the 
 requisitions of this act, he shall endorse a certificate thereof upon the bond, which 
 shall be printd facie evidence of the performance of the condition down to that 
 time. 
 
 § 523. When the auctioneer shall fail to fulfil the condition of his bond or the 
 requisitions of this act, the clerk shall cause him to be prosecuted on his bond; 
 and if judgment shall be rendered against him, his license shall thereby be vacated, 
 and he shall be incapable of receiving a new license, unless by the express order 
 of the board of supemsors of the county. 
 
 § 524. It shall be the duty of the collectors in the several counties to collect 
 the duties imposed by this act, and to prosecute for all forfeitures which may be 
 incurred under it. 
 
 CALIFORNIA. — Political Code, 1876. Chapter XIIL, Article I. 
 Auctioneers. 
 
 § 3284. Any citizen of this state may become an auctioneer for the county in 
 which he resides, and is authorized to sell real and personal property at public 
 auction, on giving a bond in accordance with the provisions of this article for 
 the faithful performance of his duties, and on the payment of the license therefor. 
 
 § 3285. The bond must be conditioned to be paid to the people of the State 
 of California, with one or more sureties, in the sum of five thousand dollars, and 
 approved by the county judge of the county in which the auctioneer proposes to 
 do business, and must be filed in the office of the county clerk of the county. 
 [This section has been amended to read as follows : — " The bond must be con- 
 ditioned to be paid to the people of the State of California, with one or more 
 sureties, in the sum of five thousand dollars, and approved by the judge of the 
 superior court of the county in which the auctioneer proposes to do business." ^ 
 IlittelVs Supplement, 18S0, § 3285, p. 160.] 
 
 § 3286. No auctioneer's license is required for the selling of any goods at pub- 
 lic sale belonging to the United States or to this state, or for the sale of property 
 by virtue of any process of any state or federal court. 
 
STATUTES. 
 
 407 
 
 § 3287. Every original application for an auctioneer's license must be accom- 
 panied with a verified statement of the amount of sales proposed to be made 
 monthly, and the license charge must be for the first quarter classified thereby. 
 
 § 3288. Every auctioneer applying to the tax collector for a renewal of his 
 license must accompany his application with a statement under oath setting • forth 
 that his average receipts per month on account of sales during the preceding 
 quarter did not exceed the amount specified in the class of license for which he 
 applies. The tax collector must provide blank forms of affidavit for that purpose, 
 and administer the oath required to applicants without charge. 
 
 § 3289. After the first quarter licenses may be issued for the class fixed for a 
 term not exceeding one year at the option of the auctioneer. No auctioneer must 
 exceed the amount of sales of the class in which his license is fixed. For every 
 violation of this section, in addition to the criminal penalty, the auctioneer forfeits 
 two hundred and fifty dollars. 
 
 § 3290. No auctioneer is permitted to transfer his Hcense to any other person 
 for any part of the time for which his license is issued ; nor is any auctioneer per- 
 mitted to use his license for the purpose of transacting an auction business in 
 more than one store or specified place of business. 
 
 § 3291. In any city or town where there is no auctioneer, the sheriff or a 
 constable thereof is ex officio auctioneer, and is permitted to sell any property, 
 real or personal, at public auction ; and for any deficiency as such ex officio auc- 
 tioneer he is liable on his official bond. 
 
 § 3292. Every auctioneer, in case of inability to attend an auction by reason 
 of sickness or the performance of any duty imposed upon him by law, or during a 
 temporary absence from the city or county within which he is auctioneer, may 
 employ a co-partner or clerk to hold such auction in his name and behalf; such 
 employee to take and file with the clerk of the county an affidavit faithfully to 
 perform the duties of auctioneer. But any auctioneer may employ a crier at any 
 sale, for whose acts he shall be responsible. 
 
 Article II. — Regulations Respecting Sales. 
 
 § 3302. No auctioneer in any city of this state must have at one time more 
 than one place for holding auction; and every such auctioneer, before acting as 
 such, must file with the clerk of the county in which such city is situated a writing 
 signed by him designating such place, and naming therein the partners, if any, 
 engaged with him in business. 
 
 § 3303. No auctioneer must expose to sale any articles at any other place than 
 that so designated, except goods sold in original packages as imported, household 
 furniture, and such bulky articles as have usually been sold in warehouses, or in 
 the pubUc streets, or on the wharves. 
 
 § 3304. The common council or other corresponding authority of each city 
 may designate such place or places therein for the sale by auction of horses, car- 
 riages, and household furniture as they deem expedient. 
 
 § 3305. Every auctioneer who sells any animal of the horse kind, or any mules, 
 must keep a book, in which he must 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, and a descrip- 
 tion of each horse or mule sold, together with the marks and brands. The book 
 is a public record, subject to the inspection of any person desiring to inspect the 
 same. 
 
 § 3306. Each auctioneer must keep a book, in which he must enter all sales, 
 showing the name of the owner of the goods sold, to whom sold, and the amount 
 
408 APPENDIX. 
 
 paid, and the date of each sale, which book must at all times be open for the 
 inspection of any person interested therein. 
 
 § 3307. Every auctioneer in the city of San Francisco must, under his own 
 name, give previous notice in one or more of the public newspapers printed in 
 that city of every auction sale made by him ; and in case he is connected with any 
 person or firm, his name must in all cases precede, separately and individually, the 
 name of such person or the title of the firm. 
 
 § 3308. All sales of goods by public auction in the cities of San Francisco and 
 Sacramento must be made in the daytime, between sunrise and sunset, excepting, 
 
 1. Books, prints, or paintings. 
 
 2. Goods sold in the original package as imported, according to a printed 
 catalogue, of which samples must have been opened and exposed to pub- 
 lic inspection at least one day previous to the sale. 
 
 § 3309. No auctioneer must demand or receive a higher compensation for his 
 services than a commission of one per cent on the amount of any sales, public or 
 private, made by him, unless by virtue of a previous agreement in writing between 
 him and the owner or consignee. Every auctioneer who violates this section, in 
 addidon to the criminal penalty, forfeits to the party aggrieved two hundred and 
 fifty dollars, and must refund the excess of charge. 
 
 § 3310. Every auctioneer must quarterly make to the county auditor a report 
 under oath, showing, 
 
 1. The aggregate amount of auction sales made by him for the preceding 
 quarter, designating the months and the amount for each month; 
 
 2. The days of each month on which auction sales were made, and the 
 character of property sold by him during each month; 
 
 3. The amount of all private sales made, and the day on which they were 
 made; 
 
 4. A statement of any partner, clerk or other employee connected with him 
 in his business, and what sales, if any, have been conducted by them, and 
 why; and 
 
 5. The particular place where his business is conducted. 
 
 Article III. — Frauds and Penalties. 
 
 § 3322. For every false report made, and for every neglect to make the report 
 required in the preceding article, the auctioneer thereby forfeits the sum of two 
 hundred and fifty dollars, to be recovered on his bond. 
 
 § 3323. The penalties imposed by the provisions of the chapter, not otherwise 
 appropriated, must be prosecuted for by the district attorney of the proper county, 
 the moneys recovered to be paid to the county treasurer for the use of the general 
 fund of the county. 
 
 § 3324. Any one aggrieved or damaged by any act of an auctioneer, in viola- 
 tion of or contrary to the provisions of this chapter, has an action against him and 
 his bondsmen on his official bond therefor. 
 
 Article II. — Classification and Taxes. 
 
 § 3376. Auctioneers are divided into eight classes, and must obtain licenses 
 from the tax collector as follows : 
 
 I. Those whose average monthly sales amount to one hundred thousand 
 dollars and upwards constitute the first class, and must pay a license of 
 four hundred dollars per quarter. 
 
STATUTES. 409 
 
 2. Those whose average monthly sales amount to seventy-five thousand 
 dollars and less than one hundred thousand dollars constitute the second 
 class, and must pay a license tax of three hundred dollars per quarter. 
 
 3. Those whose average monthly sales amount to fifty thousand dollars and 
 less than seventy-five thousand dollars constitute the third class, and must 
 pay a license tax of two hundred dollars per quarter. 
 
 4. Those whose average monthly sales amount to thirty thousand dollars 
 and less than fifty thousand dollars constitute the fourth class, and must 
 pay a license tax of one hundred and twenty-five dollars per quarter. 
 
 5. Those whose average monthly sales amount to twenty thousand dollars 
 and less than thirty thousand dollars constitute the fifth class, and must 
 pay a license tax of one hundred dollars per quarter. 
 
 6. Those whose average monthly sales amount to ten thousand dollars and 
 less than twenty thousand dollars constitute the sixth class, and must pay 
 a license tax of si.\ty dollars per quarter. 
 
 7. Those whose average monthly sales amount to twenty-five hundred and 
 less than ten thousand dollars constitute the seventh class, and must pay 
 a license tax of twenty-five dollars per quarter. 
 
 8. Those whose average monthly sales are less than twenty-five hundred 
 dollars constitute the eighth class, and must pay a license tax of seven 
 dollars and a half per quarter. 
 
 Civil Code. — Auctioneers. 
 
 § 2362. An auctioneer, in the absence of special authority or usage to the 
 contrary, has authority from the seller only as follows : 
 I. To sell by pubhc auction to the highest bidder; 
 
 ii. To sell for cash only, except such articles as are usually sold on credit 
 at auction ; 
 
 3. To warrant, in like manner with other agents to sell, according to sec- 
 tion 2323; 
 
 4. To prescribe reasonable rules and terms of sale; 
 
 5. To deliver the things sold, upon payment of the price ; 
 
 6. To collect the price; and 
 
 7. To do whatever else is necessary or proper and usual in the ordinary 
 course of business for effecting these purposes. 
 
 § 2363. An auctioneer has authority from a bidder at the auction, as well as 
 from the seller, to bind both by a memorandum of the contract, as prescribed in 
 the title on sale. 
 
 Penal Code. 
 
 , § 436. Every person who acts as an auctioneer, in violation of the laws of this 
 state relating to auctions and auctioneers, is guilty of a misdemeanor. 
 
 CONNECTICUT. — 1877, Chapter 135. 
 
 § 1. Every person not a resident of any town, city, or borough, in which he 
 shall expose for sale by auction any goods or articles, except provisions, charcoal, 
 -wood, and the, products of a farm, and second-hand household furniture, without 
 a license therefor from a majority of the selectmen of such town, or from the 
 authorities of such city or borough, authorized by the charter or by-laws of such 
 city or borough to issue such Hcense, shall be fined not more than fifty dollars nor 
 less than twenty dollars, or imprisoned in the common jail of the county in which 
 
410 APPENDIX. 
 
 such town, city or borough is situated, not less than twenty days nor more than 
 sixty days, or by such fine and imprisonment both. 
 
 § 2. The majority of the selectmen of every town are hereby empowered to 
 issue such licenses, and in case the charter or by-laws of any city or borough do 
 not authorize any person or persons to issue such license, the mayor of such 
 city and the warden of such borough are hereby empowered to issue the same; 
 but no license shall be issued unless an application therefor in writing shall have 
 been made and filed with one of the selectmen or with the authority authorized 
 by law to issue such license at least three days before the issue of the same ; and 
 the authority issuing such license shall have authority to revoke the same, if in 
 the judgment of such authority it shall be for the public interest so to do. 
 
 DAKOTAH. — Revised Codes, 1877. — Civil Code, Chapter IV. 
 
 § 1022. Definition. — A sale by auction is a sale by public outcry to the high- 
 est bidder on the spot. 
 
 § 1023. When Sale Complete. — A sale by auction is complete when the 
 auctioneer publicly announces, by the fall of his hammer or in any other custom- 
 ary manner, that the thing is sold. 
 
 § 1024. Withdrawal of Bid. — Until the announcement mentioned in the 
 last section has been made, any bidder may withdraw his bid, if he does so in a 
 manner reasonably sufficient to bring it to the notice of the auctioneer. 
 
 § 1025. Within Conditions. — When a sale by auction is made upon written 
 or printed conditions, such conditions cannot be modified by any oral declarations 
 of the auctioneer, except so far as they are for his own benefit. 
 
 § 1026. Absolute Right of Bidder. — If at a sale by auction the auctioneer, 
 having authority to do so, publicly announces that the sale will be without reserve, 
 or makes any announcement equivalent thereto, the highest bidder in good faith 
 has an absolute right to the completion of the sale to him; and upon such a sale 
 bids by the seller or any agent for him are void. 
 
 § 1027. By-bidding; Fraud. — The employment by a seller, at a sale at 
 auction, without the knowledge of the buyer, of any person to bid at the sale, 
 without an intention on the part of such bidder to buy and on the part of the 
 seller to enforce his bid, is a fraud upon the buyer, which entitles him to rescind 
 his purchase. 
 
 § 1028. Auctioneer's Memorandum. — When property is sold at auction, 
 an entry made by the auctioneer in his sales-book at the time of the sale, specify- 
 ing the name of the person for whom he sells, the thing sold, the price, the terms 
 of sale and the name of the buyer, binds both parties in the same manner as if 
 made by themselves. 
 
 Political Code, Chapter 36. — Peddlers' and Auctioneers' Licenses. 
 
 § 1. License Required. — No auctioneer, peddler or other person or per- 
 sons, company or corporation, shall be permitted to sell, vend or retail, either at 
 private sale or public auction, any goods, wares or merchandise, without having 
 first obtained a license for that purpose, as hereinafter provided. 
 
 §2. County Board Grants Licenses. — The board of county commission- 
 ers of the respective counties shall have power to grant such license on the pay- 
 ment into the county treasury by the applicant for such license of a sum to be 
 assessed and fixed by said board, not less than ten dollars nor more than one 
 hundred dollars. 
 
STATUTES. 41 I 
 
 § 3. Authority under License. — Such license shall authorize the person 
 receiving it to vend, sell and retail goods, wares and merchandise within said 
 county for the period of one year from the time of granting the same. 
 
 §4. County Clerk's Powers. — If the board of county commissioners be 
 not in session when the application is made, the county clerk may grant a written 
 permission to the applicant to vend, sell and retail goods, wares and merchandise 
 until the end of the next session of the board of county commissioners, or, if said 
 board take no action upon the case, for the term provided in the third section of 
 this chapter; and at the time of granting such license, the clerk may assess the 
 amount to be paid by the applicant, which shall be paid into the county treasmy 
 accordingly. 
 
 §5. Clerk's Permits Revocable by Board. — When permits shall be 
 granted in vacation as aforesaid, it shall be the duty of the board at their next 
 regular meeting thereafter to examine such permit, and if approved to assess and 
 fix the amount to be paid for such license thereafter, which amount shall be paid 
 as in the case of original applications ; but if the board of county commissioners 
 do not approve the same the license shall be vacated, and no other sum shall be 
 required to be paid than that fixed by the county clerk. 
 
 § 6. Penalty for Violation. — If any person or persons, company or corpo- 
 ration shall directly or indirectly keep an auction store, or sell, vend or retail any 
 goods, wares or merchandise, without being first duly authorized by license or 
 permit as aforesaid, such person or persons, company or corporation so offending 
 shall forfeit and pay any sum not less than ten dollars nor exceeding two hundred 
 dollars. 
 
 § 7. Merchants Taxed not Included. ^ Nothing contained in this act 
 shall be so construed as to extend to the sale of goods, wares and merchandise 
 by merchants who pay an annual tax upon the same assessed according to the 
 revenue laws of this territory nor to persons who sell commodities manufactured 
 or raised by themselves in this or any adjoining territory. 
 
 DELAWARE. — Revised Statutes of 1852, as amended in 1874. — Chap- 
 ter 117, Vol. 13, Laws of Delaware. 
 
 § I. That no person or persons, firm, company or corporation, without having 
 first obtained a proper license therefor as hereinafter provided, shall, within the 
 hmits of the state, be engaged in, prosecute, follow or carry on any trade, business, 
 pursuit or occupation, in this section hereinafter next mentioned, that is to say : 
 auctioneering ; foreign life insurance agency ; vending of goods, wares and mer- 
 chandise by samples ; keeping or travelling staUions or jacks for the use of mares ; 
 keeping eating-houses ; taking photographs ; acting as brokers ; real estate 
 agency; exhibiting circuses ; practising jugglery. 
 
 § 2. That any person or persons, firm, company or corporation desiring to be 
 engaged in, prosecute, follow or carry on any trade, business, pursuit or occupa- 
 tion named in the foregoing section of this act, may apply to the Clerk of the 
 Peace of any county in this state for a proper hcense, authorizing or empowering 
 him, her or them to engage in, prosecute, follow or carry on such trade, business, 
 pursuit or occupation which he, she or they may desire to engage in, prosecute, 
 follow or carry on, and upon his, her or their paying for the use of the state to the 
 said Clerk of the Peace the fee hereinafter mentioned for such license, and also 
 the fee to the Clerk of the Peace for issuing the same, it shall be the duty of such 
 Clerk of the Peace to issue to him, her or them a proper license therefor. 
 
 § 3. That the following fee shall be paid to the Clerk of the Peace for the use 
 
412 APPENDIX. 
 
 of the state, for any license to be issued to him under the provisions of this act, 
 that is to say : for each license as an auctioneer, the sum of ten dollars. . . 
 
 § 4. That if any person or persons, firm, company or corporation shall be en- 
 gaged in, prosecute, follow or carry on, within the limits of this state, any trade, 
 business, pursuit or occupation named in the first section of this act, without hav- 
 ing first obtained a proper license therefor, he, she or they, and the individuals 
 composing such firm or company, and each of them, and the president and direc- 
 tors and each of them of such corporation, for every such offence shall be deemed 
 guilty of a misdeameanor, and upon conviction thereof by indictment, besides 
 being liable to the payment of the tax, be subject to imprisonment for a term not 
 exceeding two years, or a fine not exceeding five hundred dollars, or both at the 
 discretion of the court ; one moiety of such fine for the use of the state, the other 
 moiety to the use of the person who shall first give information of the fact whereby 
 said forfeiture was incurred. 
 
 § 5. That every person shall be deemed an auctioneer within the naming of 
 this act, whose business it is to offer property for sale to the highest or best bidder. 
 No auctioneer shall be authorized by virtue of his license as such auctioneer, to 
 employ any other person to act as auctioneer in his behalf, except in his own store 
 or warehouse or in his presence. The provisions of this act shall not apply or 
 extend to judicial or executive officers making auction sales in pursuance of any 
 execution, judgment or decree of any court, nor public sales made by executors 
 and administrators. . . . 
 
 § 6. That in every license to be taken out under or by authority of this act shall 
 be contained and set forth the trade, business, pursuit or occupation for which such 
 license is granted, the name and place of abode of the person or persons taking 
 out the same, and that the fee due the state therefor has been paid. . . . Where 
 one or more persons are associated together as a firm or copartnership and doing 
 or carrying on any trade, business, pursuit or occupation mentioned in the first 
 section of this act at the same time and place, it shall not be necessary for each 
 of the individuals composing such firm or copartnership to take out a separate 
 license therefor, but one license may be granted on the name of the firm or co- 
 partnership. In every case where more than one of the trades, businesses, pur- 
 suits or occupations mentioned in the first section of this act shall be pursued or 
 carried on by the same person or persons, firm, company or corporation at the 
 same time, a hcense must be taken out for each according to the third section of 
 this act. Each license issued in pursuance of the provisions of this act shall bear 
 date on the day on which it was issued, and shall continue in force one year from 
 the date thereof and no longer. Such licenses shall be signed by the Governor 
 of the State and countersigned by the Secretary of State and sealed with the seal 
 of his office. The death, resignation or removal from office by the Governor or 
 [of the] Secretary of State shall not avoid or invalidate any hcense issued under 
 the provisions of this act. Every person or persons, firm, company or corporation 
 who shall procure a license under this act as an auctioneer . . shall be author- 
 ized and empowered, during the year for which such license was granted, to exer- 
 cise and carry on the trade, business, pursuit or occupation for which the license 
 was granted in any county of this state, provided that no such person or persons, 
 firm, company or corporation shall be engaged in, prosecute, follow or carry on 
 such trade, business, pursuit or occupation at more than one place at the same 
 time. And provided further that if any person or persons shall be duly licensed 
 under this act as an auctioneer . . ., and shall die before the expiration of the 
 year for which such license was granted, it shall be lawful for his, her or their 
 executors or administrators to exercise and carry on the trade, business, pursuit or 
 occupation for which the license 'was granted until the expiration of the year for 
 which it was granted. 
 
STATUTES. 413 
 
 § 9. That it shall be the duty of every Justice of the Peace, Sheriff, Deputy Sheriff 
 and Constable, within their respective counties, whenever he shall have knowledge 
 that any person or persons, firm or company, is or are engaged in, exercising, 
 following or carrying on any trade, business, pursuit or occupation mentioned in 
 the first section of this act, without having first obtained a license therefor as 
 provided by this act, to make complaint or cause complaint to be made thereof 
 before some Justice of the Peace of his county, who shall thereupon proceed accord- 
 ing to the provisions of Chapter 97 of the Revised Code of the State of Delaware, 
 in relation to complaints made before him in other criminal cases, and all existing 
 provisions of law relative to misdemeanors and offences shall extend and apply to 
 offences created by this act, so far as the same are applicable and not inconsistent 
 herewith. Every person exercising or carrying on any trade, business, pursuit or 
 occupation named in the first section of this act shall on demand of any Justice 
 of the Peace, Sheriff, Deputy Sheriff, Constable or citizen within this state, pro- 
 duce the license therefor, and unless he shall do so it shall be presumptive evi- 
 dence that he has no license. 
 
 FLORIDA. — McClellan's Digest of the Laws of Florida, 1881. — Chap- 
 ter 10, Auctioneers. 
 
 § I . There shall be appointed and commissioned by the Governor of this state, 
 in each and every county within this state, a suitable number of fit and discreet 
 persons, who shall reside within the county for which they shall be appointed, 
 to act as auctioneers at all public sales by auction, except sales under and by virtue 
 of any execution at common law, decree in chancery, or of any property l^elonging 
 to the state or any county thereof, or by any executor, administrator or guardian 
 in relation to property sold by them in that capacity. All persons appointed 
 under the authority of this act shall hold their offices for the period of two years. 
 
 § 2. Every auctioneer appointed in this state shall, before he enters upon the 
 duties of his office, file in the office of the Comptroller of Public Accounts a bond 
 payable to the Governor of the State of Florida or his successors in office, with 
 two or more securities to be approved by the Judge of the County Court in the 
 county for which such auctioneer was appointed, and in such sum or penalty as 
 the said Judge of the County Court shall prescribe, which bond shall be condi- 
 tioned that the said person appointed auctioneer shall well and truly perform all 
 the duties of his office as prescribed by law; and the said bond shall not be void 
 upon the first recovery, but may be proceeded upon from time to time, until the 
 whole penalty thereof shall be collected; and the same shall be recorded in the 
 office of records for the county for which he was appointed, and be forwarded by 
 such auctioneer to the said Comptroller ; and until said bond is received at the 
 said Comptroller's office, no commission shall be issued by the Governor to such 
 auctioneer. 
 
 § 3. That each auctioneer in this state shall keep a full and fair record of all 
 the sales made by him; which record shall be open to the inspecdon of the tax 
 collector whenever he shall require it. 
 
 § 4. The books and records of sales of all auctioneers in this state shall be 
 open to inspection at all times of the respective state attorney; and it shall be the 
 duty of said state attorney from time to time to examine said books and records, 
 and if he shall discover any fraud or error therein, he shall take such steps and 
 institute such proceedings in regard thereto as the law shall direct, and inform the 
 Comptroller thereof. 
 
 § 5. If any auctioneer shall sell any goods, wares, merchandise or other produce 
 
414 APPENDIX. 
 
 at auction by deputy, or otherwise than in person, such auctioneer and his securi- 
 ties shall pay a fine of two thousand dollars to the state for every sale so made, to 
 be recovered in any court in the state having cognizance of the same. 
 
 § 6. It shall not be lawful for any person to offer for sale or to sell at auction 
 any property, whether real or personal, without first being duly commissioned and 
 qualified as auctioneer; and any person so doing shall be liable to indictment, and 
 on conviction to a fine of not more than five hundred dollars at the discretion of 
 the court; and this section shall be given in special charge to the grand jury by 
 the Judges of the Circuit Court at each term thereof. 
 
 § 7. So much of the law regulating auction sales as compels persons to employ 
 a licensed auctioneer when offering their own private property for sale be and the 
 same is hereby repealed; and that hereafter no persons failing or refusing to en- 
 gage the services of a licensed auctioneer shall be liable for damages therefor. 
 
 § 8. There shall be no tax upon sales of property sold for taxes due to the 
 state or any county or city thereof; or of property sold under execution, or by a 
 decree or order of court; or of property belonging to the state or any county or 
 city thereof; or of property sold by an executor or administrator or guardian in 
 his capacity as such. And the provisions of the sixth section of this chapter shall 
 not apply to any such executor, administrator or guardian. 
 
 § 9. It shall not be lawful for any auctioneer to charge or receive a. greater 
 per cent, than four per cent, over and above the tax accruing to the state upon any 
 goods or other articles sold by him. Provided, the amount of property sold does 
 not exceed one thousand dollars, and for all sums above that, two per cent, on the 
 amount of such excess. 
 
 Chapter 69. 
 
 § 23. If any auctioneer shall knowingly make a false return of sales by him, 
 he shall be liable to indictment, and on conviction to a fine of not more than five 
 hundred dollars at the discretion of the court; and upon such conviction the com- 
 mission of such auctioneer shall be forfeited and void. 
 
 Chapter 174, § 24. 
 
 Clause 6. Land-agents shall pay a license-tax of twenty-five dollars. Auc- 
 tioneers for the sale of land and other property shall each pay a license-tax of ten 
 dollars, and in addition thereto a tax of one-half of one per cent, upon the gross 
 amount of sales made by them; all auctioneers for the sale of lands and other 
 property shall, on the first Monday of April next, and each and every month 
 thereafter, render to the Collector of Revenue for their respective counties a full 
 and accurate report and statement in writing, to be sworn to before some one 
 qualified to administer oaths, of all sales made by them, and shall at the same time 
 pay over to the Collector of Revenue the amount of tax due thereon, taking his 
 written receipt therefor in duplicate, and shall send one of said receipts, with a 
 copy of his report of sales for the preceding month, to the Comptroller. Any auc- 
 tioneer who neglects to make such statements to the Collector and Comptroller, 
 or to pay over such tax as required by this chapter, shall be deemed guilty of a 
 misdemeanor, and on conviction shall be punished by a fine of not less than fifty 
 dollars, or be confined in the county jail for a term not exceeding six months, at 
 the discretion of the court. 
 
STATUTES. 
 
 GEORGIA. — Code. 1873. 
 
 415 
 
 § 809. Besides the ad valorem tax, the following specific taxes shall be assessed 
 per annum, and estimated in fixing the rate per cent, : 
 
 4. To carry on the business of an auctioneer, ten dollars. 
 
 § 1425- Any citizen of Georgia shall have the right to exercise all the privi- 
 leges, powers and functions of a vendue-master or auctioneer in any city or town 
 in this state by paying such license and giving such bond as may be demanded or 
 required by the by-laws, rules or ordinances of the town or city in which said per- 
 son may wish to exercise the calling of a vendue-master or auctioneer. 
 
 § 1426. Any vendue-master who may sell or dispose of any horse or mule 
 shall be held responsible to the purchaser for damages, in the event that it shall 
 be shown and proven that the horse or mule so sold by him was stolen. 
 
 § 2209, CI. 4. Auctioneers may sue in their own names for goods sold by 
 them. 
 
 § 2630. In sales by auction, the auctioneer shall be considered agent of both 
 parties, so far as to dispense with any further memorandum in writing than his 
 own entries. 
 
 ILLINOIS. — Constitution, Article IX., Section z. 
 
 The general assembly shall provide such remedy as may be needful by levying 
 a tax by valuation, so that every person and corporation shall pay a tax in propor- 
 tion to the value of his, her or its property, — • such value to be ascertained by 
 some person or persons to be elected or appointed in such manner as the general 
 assembly shall direct, and not otherwise; but the general assembly shall have 
 power to tax peddlers, auctioneers, brokers, hawkers, merchants, commission mer- 
 chants, showmen, jugglers, inn-keepers, grocery keepers, liquor dealers, toll 
 bridges, ferries, insurance, telegraph and express interests or business, vendors of 
 patents, and persons or corporations owning or using franchises and privileges, in 
 such manner as it shall from time to time direct by general law, uniform as to the 
 class upon which it operates. 
 
 Revised Statutes of Illinois, 1880. Ch. 24, Art. s, § i. 
 
 The city councils in cities, and the president and board of trustees in villages, 
 have power to fix the amount, terms and manner of issuing and revoking licenses. 
 
 INDIANA. — Revised Statutes of Indiana, 1881. 
 
 Cities have power " to regulate the sale of all kinds of property at auction in the 
 streets, stores, shops or elsewhere in the city, and to license auctioneers and re- 
 quire them to pay a reasonable per cent, on the amount of sales." — § 3106, cl. 38. 
 
 In towns, the board of trustees is authorized " to license, regulate or restrain 
 auction establishments, street auctions," &c. — lb., § 3333, cl. 7. 
 
 IOWA. — Revised Code of Iowa, 1880. 
 
 § 462. Cities and towns " shall have power to regulate and license sales by 
 auctioneers and transient merchants within their corporate limits, provided that 
 the exercise of the power shall not interfere with sales made by sheriffs, consta- 
 bles, coroners, marshals, executors, guardians, assignees of insolvent debtors or 
 bankrupts, or any other person required by law to sell real or personal property." 
 
4l6 APPENDIX. 
 
 KANSAS. — Dassler's Kansas Statutes, 1876, § 282, Cl. 2. 
 
 The mayor and council of each city are authorized "to levy and collect a 
 license-tax on auctioneers, hawkers, peddlers," &c. 
 
 LOUISIANA. — VooRHiEs's Revised Statutes of Louisiana, 1876. 
 
 § 139. Any citizen of the state may become an auctioneer for the parish in 
 which he is a qualified voter, and be authorized to sell any real or personal prop- 
 erty at public auction upon giving bond and security according to law and taking 
 the oath prescribed by law. 
 
 § 140. Before entering on the discharge of his duties, he shall execute his 
 bond according to law, with good and solvent securities, conditioned for the faith- 
 ful performance of all the duties required by law, towards all persons who may 
 employ him as auctioneer, and for the prompt payment of the taxes or commissions 
 payable to the state, and of all the sums which he shall receive in his official 
 capacity belonging to other persons. 
 
 § 141. The bonds to be given shall be in the following amounts: Ten thou- 
 sand dollars for the city and parish of Orleans, and two thousand dollars for the 
 other parishes of the state. 
 
 § 142. Every auctioneer shall take out an annual license from the auditor of 
 public accounts, authorizing him to do and perform all the business properly 
 belonging to an auctioneer. 
 
 § 143. No person shall act as an auctioneer who is indebted to the state or 
 any municipal corporation for any tax as an auctioneer or any license or commis- 
 sion which he has neglected to pay after final judgment rendered against him 
 therefor. 
 
 § 144, No other person than an auctioneer or a civil officer acting under the 
 authority of some court of the United States or of this State, or the legal represen- 
 tative of a succession of minors, curators of interdicted persons, syndics of insol- 
 vents, or the sheriff when there is no auctioneer in the parish, shall exercise the 
 trade or business of auctioneer by selling or offering for sale at auction any prop- 
 erty real or personal under penalty of five hundred dollars for each offence, one- 
 half of the penalty for the benefit of the informer when recovered. 
 
 § 145. All property, rights or credits which shall be sold at public auction, or 
 at private sale by any auctioneer (except such as are or may be exempted by law) 
 shall be subject to a duty of one-half of one per centum of the value or price at 
 which it shall be sold, to be paid by the person who shall sell the same to be sub- 
 ject each and every time it shall be stricken off to duties at the above rates. 
 
 § 146. Any auctioneer who shall neglect to pay into the state treasury the 
 duties required by law upon auction sales made by him, shall forfeit his license, 
 and in case he refuses to return the same, the auditor of public accounts shall give 
 public notice in the official gazette of the cause for which the license of such auc- 
 tioneer has been forfeited, and that his license has been withdrawn from him. 
 
 § 147. Every auctioneer in the city of New Orleans shall make out in writing 
 a quarterly account, dated on the last days of March, June, September and 
 December, and shall therein state minutely and particularly : 
 
 First. The sums for which any goods or effects shall have been sold at every 
 auction held by him from the date of his last quarterly account. 
 
 Second. The days on which sales were made by him and the amount of each 
 day's sale. 
 
STATUTES. 
 
 417 
 
 Third. The amount of all private sales made by himself or any of his part- 
 ners on commission, and the days on which such sales were made. 
 
 Fouri/i. The amount of duties chargeable on all sales, public or private, 
 mentioned in the account. 
 
 § 148. The auctioneers throughout the state, those in the parish of Orleans 
 excepted, shall settle their accounts with the treasurer annually. 
 
 § 149. Every such account, within ten days after the day on which it is dated, 
 shall be submitted to the auditor of public accounts, who is required to audit in 
 the city of New Orleans the accounts of any auctioneer of that parish, and to 
 charge a fee of five dollars therefor, and every auctioneer exhiljiting an account 
 shall take the following oath before the auditor, and auctioneers of the rest of the 
 state shall take it before any justice of the peace of the parish in which they are 
 authorized to exercise their functions : 
 
 " I do solemnly swear (or affirm) that the account exhibited by me, and to 
 which I have subscribed my name, contains a just and true account of all property 
 of every description sold or struck off at public sale, or sold by me at private sale 
 on commission, whether subject to duty or not, and the day on which the same 
 was respectively sold; that I have examined the entry of all sales mentioned in 
 said account in the book kept by me for that purpose, and fully believe this 
 account to be in all respects correct." 
 
 § 150. Such oath shall be reduced to writing, be indorsed on the account, and 
 be subscribed by the auctioneer taking it; and every auctioneer of the parish of 
 Orleans, within ten days after he shall have exhibited his account as aforesaid, 
 shall pay for the use of the state, into the treasury thereof, the duties accruing on 
 the sales mentioned in the account. 
 
 § 151. Every auctioneer who, within the period limited for his accounting 
 shall have made no sales, public or private, of any property, real or personal, liable 
 to auction duties, shall make and subscribe an affidavit of those facts before the 
 auditor or a justice of the peace. 
 
 § 152. In addition to the number of days allowed by the law, within which 
 auctioneers are required to render their accounts and make payment of commissions 
 to the treasurer, they shall be entitled to one day for every twenty miles of dis- 
 tance from the seat of government to the parish site of their respective parishes. 
 
 § 153. It shall be duty of every auctioneer who shall offer for sale jewelry of 
 any kind or description to announce to the persons present in a loud voice whether 
 the same be gold, silver or base metal, before proceeding to sell the same; also, 
 whether the article offered is to be sold by the lot or by the piece, and if by the 
 piece, the number of pieces. Every auctioneer who shall offer for sale anyjewelry 
 without first making such announcement shall, on conviction thereof, pay a fine 
 of not more than one hundred dollars nor less than fifty dollars for each offense, 
 and said sale shall not be binding on the bidder. 
 
 § 154. It shall be the duty of every auctioneer, before he shall proceed to sell 
 any cutlery, whether it be in a box or a card, to state whether it is to be sold by 
 the piece or in gross, and if by the piece, the number of pieces offered for sale; 
 and every auctioneer who shall neglect or refuse to announce the same shall pay 
 a fine of not more than one hundred dollars nor less than fifty dollars, and the 
 sale shall not be binding on the purchaser. 
 
 § 155. The purchaser at an auction sale of any watch, plate or jewelry shall 
 have the right to return it to the auctioneer at any time within twenty hours from 
 the day of the sale, if the watch, plate or jewelry be not of the quality represented 
 by him, and the auctioneer shall return to the purchaser the price of the article ; 
 should he refuse to do so, he shall forfeit his license, and be liable to a fine of 
 five hundred dollars. 
 
4l8 APPENDIX, 
 
 § 155. Any auctioneer who shall exhibit and offer for sale at auction any arti- 
 cle setting forth its value and character, and through the aid of mock bidders 
 induce its purchase by a real bidder, and who shall afterwards substitute any arti- 
 cle in lieu of that offered to and purchased by the bidder, shall, on conviction 
 thereof, be fined or imprisoned at the discretion of the court; and any mock 
 bidder at any auction sale so made shall suffer the like penalty. 
 
 § 157. It shall not be lawful for any person acting as auctioneer to purchase, 
 either directly or indirectly, any property at a sale made by him; and any such 
 sale shall be null and void. 
 
 § 15S. Auctioneers shall make in person, or by agents appointed by them, all 
 sales advertised by them : provided that no auctioneer shall have the privilege 
 of appointing more than one such deputy or agent except in the parish of Orleans, 
 where the auctioneers shall each have the privilege of appointing two such depu- 
 ties or agents; that every agent of said auctioneers shall be constituted such by 
 power of attorney passed before a notary public of the parish in which said auc- 
 tioneers exercise their functions; and to said notarial act the surety or sureties of 
 said auctioneer shall be parties, and shall give his or their consent to the appoint- 
 ment of said agent or agents, which said consent shall prevent the said sureties 
 from pleading any exemption from said responsibility on the bond of said auc- 
 tioneer in consequence of any appointment made under the provisions of this act. 
 
 § 159. No auctioneer in the city of New Orleans shall, at the same time, have 
 more than one house or store for the purpose of holding his auction of dry goods 
 sales, and one for the purpose or holding his grocery sales. I le may sell at dif- 
 ferent exchanges in the city or at private stores, when called upon to do so by 
 the owners, any kind of movable or immovable property, lie may sell in the 
 public streets or on the levee all goods sold in original packages as imporlcd, 
 household furniture, and such bulky articles as are usually sold at such places. 
 And every auctioneer, on the first day of November in each year, shall designate, 
 in a writing signed by him, such hou.^e or store, and shall also name the partner, 
 if any, engaged with him in business, and shall deposit the writing or declaration 
 with the auditor. 
 
 § 160. No auctioneer shall demand or receive a higher compensation for his 
 services than a commission of two and a half per cent, on the amount of anv sale, 
 public or private, made by him ; and on sales of succession propertv, of property 
 belonging to minors, or in which they may be interested, and of property surren- 
 dered by insolvents made pursuant to an ^>rder or decree of any court of the state, 
 by the sheriff or an auctioneer, upon all sums under twenty-five hundred dollars 
 one per cent., and on all sums over that amount one-half of one per cent. In all 
 sales made by the representatives of a succession, or the syndic of an insolvency, 
 they shall charge no commission, 
 
 § 161. The state duty or tax upon all sales by pubUc auction of stocks of banks 
 or incorporated companies, bonds of the state, bonds of the city of Now Orleans, 
 or bonds of incorporated companies or insurance scrip of any kind, shall be one- 
 quarter of one per cent. 
 
 § 162. It shall also be the duty of the auditor to require all auctioneers in the 
 city of New Orleans to keep in a book, to be provided at their expense, and to l)e 
 by the said auditor numlicred from the first to the last page, a correct and true 
 account of all sales made by them from day to day, showing the date of each sale, 
 the name of the seller and buyer, and the amount of the sale; to call as often as 
 he may deem proper on any auctioneer and require the production of any books 
 or accounts kept by him in the ordinary course of his business as such; to cx.im- 
 ine and compare with the books the accounts to be rendered by all auctioneers, 
 and to certify the same under his hand; to copy into a book to be kept by him 
 the account so examined, and mention the day on which it was presented. 
 
STATUTES. 
 
 419 
 
 § 163. Hereafter all bonds required under existing laws to be given by auc- 
 tioneers shall be for the term of two years from the term they may be approved 
 by the proper officer to approve such bonds; and such bonds shall not affect any 
 sureties thereon except for acts of the principal during the time for which such 
 bonds were executed. 
 
 § 164. Within twenty days after the passage of this act in the parish of Orleans, 
 and within sixty days after the passage of this act in the other parishes of this 
 state, all auctioneers' bonds at present in force shall be deemed to expire, and the 
 sureties thereon shall not be liable on any such bonds for any acts of the princi- 
 pal in said bonds after the date of their expiration as provided by this act. 
 
 Auction Sales. 
 
 § 165. In all auction sales made by sheriffs, auctioneers or others authorized 
 to sell at public auction which are required by law to be preceded by advertise- 
 ment, it shall be the duty of the officer making the sale, in his proces verbal, or 
 act of sale, to state the manner, time and place of making such advertisements; 
 which statement, when r.o made, shall be proof of the manner, time and place of 
 making the advertisement. 
 
 § 166. When any question shall arise out of any public sale made by any per- 
 son authorized to sell at public auction, and which sale was required by law to be 
 preceded by advertisements, the sale being proved, it shall be primd faci^ evi- 
 dence that the legal advertisements were regularly made. 
 
 § 167. If any person authorized by law to sell at public auction shall fail to 
 advertise as required by law, he shall be personally liable for all damages which 
 may result therefrom. 
 
 § 168. All informalities connected with or growing out of any public sale, 
 made by any person authorized to sell at public auction, shall be prescribed 
 against by those claiming under such sale, after the lapse of five years from the 
 time of making it, whether against minors, married women, or interdicted persons. 
 
 § 169. All property, real and personal, sold at auction, shall in all cases be 
 struck off to the highest bidder, except such as may be limited, which shall be 
 announced by the auctioneer before the bidding commences ; and when the 
 owner, or any person employed by him shall be such bidder, they shall be subject 
 to the same duties as if struck off to any other person. 
 
 § 1 70. All sales of goods in the city of New Orleans by public auction, except- 
 ing sales of books, shall be made in the daytime between sunrise and sunset. 
 
 § 171. It shall not be lawful for any auctioneer, or person acting as such, to 
 sell any real estate, without first producing and reading a certificate of mortgage, 
 showing the mortgages and incumbrances recorded against the property offered, 
 under a penalty of five hundred dollars for each offense, to be recovered by the 
 purchaser. 
 
 Statutes of 1880, Ch. 83. 
 
 An act to amend and reenact section one hundred and seventy of the Revised 
 Statutes of the State of Louisiana relative to auction sales in the City of New 
 Orleans, and to provide penalties for the violation of the same. 
 
 Be it enacted bv the General Assembly of the State of Louisiana, That section 
 one hundred and seventy of the Revised Statutes of the State of Louisiana be 
 amended and reenacted, so as to read : All sales of goods in the City of New 
 Orleans by public auction, whether said sales be of property belonging to the 
 person selling or to others, excepting sales of books, painting and statuary, shall 
 be made in the daytime between sunrise and sunset; and any person who shall 
 
420 APPENDIX. 
 
 violate this provision shall upon conviction pay a fine of not less than twenty-five 
 dollars nor more than one hundred dollars for each offense, and the sale shall not 
 be binding on the purchaser. 
 
 MAINE. — Revised Statutes, 1871. Chawer 34. 
 
 § I. The municipal officers of any town may license any suitable inhabitants 
 of their county, by a writing under their hands, to be auctioneers for one year 
 in any town in said county, and shall record every such license in a book kept by 
 them for that purpose. Persons so licensed may be exempted from any liability to 
 deduct two and one-half per cent, from the gross amount of sales as provided 
 by section 3. 
 
 § 2. If such officers, after written application to them for a license, unreason- 
 ably refuse or neglect to grant it, the applicant, by giving them ten days' notice 
 and a bond to pay all costs arising thereafter, may appeal to the county commis- 
 sioners, who, after a hearing of the parties, may grant the license if they judge it 
 reasonable. 
 
 § 3. Every person licensed shall keep a fair and particular account of all goods 
 and chattels by him sold, stating of whom received, and the price for which the 
 same were sold; and unless otherwise authorized, if said goods are sold volun- 
 tarily for the benefit of parties residing out of the state, he shall deduct two and 
 a half per cent, from the gross amount of the sales for the use of the town where 
 the sale is made, and pay the same to the treasurer of the town within ten days 
 after the sale; and in default thereof he shall be liable to a fine of not less than 
 fifty nor more than three hundred dollars, and forfeit his license. 
 
 § 4. No auctioneer shall allow any person, not a legal voter in the town from 
 which he received his license, to act for or under him in any sales by public auc- 
 tion under penalty of fifty dollars for each offense; and any person so acting shall 
 be subject to the same penalty. 
 
 § 5. If any auctioneer receives any goods for sale at public auction of any ser. 
 vant or minor, knowing him to be such, or sells any goods before sunrise or after 
 sunset at public auction, he shall forfeit not less than fifty nor more than one hun- 
 dred and seventy dollars for each offense; but the municipal officers of any to\ni 
 may license any duly licensed auctioneer specially to sell after sunset upon pay- 
 ment of a sum not exceeding twenty dollars. 
 
 § 6. A parcel of real estate lying partly in one town and partly in another may 
 be sold by an auctioneer of either; but if any auctioneer sells or offers to sell any 
 real or personal property at public auction in any other towns than those author- 
 ized by his license, or if any person sells without a license, he shall forfeit not 
 exceeding six hundred dollars. 
 
 § 7. If the tenant or occupant of any building, having actual possession and 
 control thereof, knowingly permits any person to sell any goods or chattels at 
 public auction, contrary to the provisions of this chapter, in such building, or in 
 any apartment, or yard appurtenant thereto, he shall forfeit not more than six 
 hundred nor less than one hundred dollars. 
 
 § 8. Nothing in the preceding sections shall extend to sales made by sheriffs, 
 deputy sheriffs, coroners, constables or collectors of taxes, executors or administra- 
 tors, or any other person authorized to sell goods, chattels or lands, by order of 
 any court or judge of probate. 
 
 § 9. All fines imposed by this chapter may be recovered by indictment in any 
 court proper to try the same; and it shall be the special duty of city marshals and 
 their deputies, sheriffs, constables and police-officers, to make immediate com- 
 plaint for every offense against the provisions hereof; and one-half of all fines 
 
STATUTES. 421 
 
 shall be for the use of Ihe prosecutor, and the other for the use of the town where 
 the offense is committed. 
 
 Statutes of 1876, Ch. 58. 
 
 Section one of chapter thirty-four of the revised statutes is hereby amended in 
 the second line by striking out the word " county " and inserting instead thereof 
 the word "town," so that said section when amended shall read as follows: 
 
 " § I. The municipal officers of any town may license any suitable inhabitants 
 of their town, by a writing under their hands, to be auctioneers for one year in 
 any town in said county, and shall record every such Hcense in a book kept by 
 them for that purpose. Persons so licensed may be exempted from any Uability 
 to deduct two and one-half per cent, from the gross amount of sales, as provided 
 in section three." 
 
 Statutes of 1878, Ch. 28. 
 
 § I. Section one of chapter fifty-eight of the public laws of 187613 hereby 
 amended in the second line by striking out the words " suitable inhabitants " and 
 inserting instead thereof the words " legal voter," so [that] said section as 
 amended shall read as follows : 
 
 " § I . The municipal officers of any town may license any legal voter of their 
 town, by a writing under their hands, to be auctioneers for one year in any town 
 in said county, and shall record such license in a book kept by them for that 
 purpose. Persons so licensed may be exempted from any liability to deduct two 
 and one-half per cent, from the gross amount of sales as provided in section three 
 of chapter thirty-four of revised statutes." 
 
 § 2. Persons so licensed shall, upon receipt of such license, pay to the treasurer 
 of said town the sum of two dollars, and by him paid into the treasury for the use 
 of the town where such license is granted. 
 
 Statutes of 1879, Ch. 113. 
 
 Chapter thirty-four of the revised statutes is hereby amended by adding thereto 
 the following section : 
 
 " § 10. The municipal officers of any city or town in this state may grant, upon 
 presentation of an invoice or inventory of the property to be sold, a special 
 license to any auctioneer, or legal voter in this state, to sell at public auction, 
 between the hours of seven a.m. and six p.m., upon the payment of five dollars 
 for each and every invoice or inventory, the above license-fee to go to the use of 
 said city or town." 
 
 ^ Statutes of 1880, Ch. 182. 
 
 Chapter one hundred and thirteen, of the public laws of 1879, is hereby 
 amended, by adding after the word " sold " in the third line of section ten the 
 words "which shall be produced unless said municipal officers shall decide that 
 the same is unnecessary," so that when amended the same shall read : 
 
 " § 10. The municipal officers of any city or town in this state may grant, upon 
 presentation of an invoice or inventory of the property to be sold, which shall be 
 produced unless said municipal officers shall decide that the same is unnecessary, 
 a special license to any auctioneer, a legal voter in this state, to sell at public 
 auction between the hours of seven A.M. and six p.m., upon the payment of five 
 dollars for each and every invoice or inventory, the above license-fee to go to the 
 use of said city or town." 
 
422 APPENDIX. 
 
 MARYLAND. — Public Local Laws, Vol. IL, i860. Article 4. 
 
 § 85. All real estate, and all goods, wares, merchandise, stock and every other 
 species of personal property (except goods and other property belonging to this 
 state or the United States, or which shall be seized by any public officer for or on 
 account of any penalty or forfeiture, or taken in execution, and all goods distrained 
 for rent, utensils of husbandry, and all articles of the growth or produce of this 
 state) , which shall at any time be exposed to sale by public auction within the 
 city of Baltimore, shall be subject, each and every time they or any of them are 
 struck off, to duties at the following rates : 
 
 § 86. [As amended by St. 1872, Chap. 263.] All real estate and vessels, all wines 
 and ardent spirits, foreign or domestic, all goods, wares, merchandise and effects 
 imported from any place beyond the Cape of Good Hope, stocks of banks or other 
 incorporated institutions, state or city loans, goods and effects of deceased per- 
 sons or insolvent debtors, or property sold under an order or decree of any court, 
 at the rate of fifty cents on every hundred dollars; and coffee, tea, raw cotton, 
 sugar and molasses, foreign or domestic, at the rate of ten cents on eveiy hun- 
 dred dollars, except in cases where an auctioneer shall have taken out a special 
 license at the rate of seventy-five dollars per annum, to sell at public auction 
 stocks of banks or other incorporated institutions, state or city loans, when and 
 in which event, but not otherwise, no auction duty upon such securities shall 
 be paid by the auctioneer who has taken out such special license. 
 
 § 87. [As amended by St. 1872, Chap. 249.] All other goods, wares, mer- 
 chandise and effects, which are the production of any foreign country, all domestic 
 manufactures, and all goods, wares, merchandise and effects, and property of what 
 kind soever not enumerated above, at the rate of seventy-five cents on every hun- 
 dred dollars, save and excepting that class of goods known as groceries and dry 
 goods, including carpets, boots and shoes, which shall only be subject to a duty 
 of ten cents on every hundred dollars. 
 
 § 88. The duties shall be calculated on the sums for which the property or 
 goods so exposed to sale shall be respectively struck off, and shall in all cases be 
 paid by the person making the sale. 
 
 § 89. No duties shall be chargeable upon any goods, wares, merchandise or 
 other property sold by any auctioneer at private sale on the days of his public 
 auction, unless the same be sold at the place of his public auction, or unless the 
 same be part of what was offered for sale at said public auction, or was advertised 
 to be sold thereat. 
 
 § 90. The duty imposed on all sales of lands, tenements and hereditaments, or 
 of any interest therein, at public auction in the city of Baltimore, shall be a lien 
 on the said property when sold as aforesaid. 
 
 § 91. Every purchaser of lands, tenements or hereditaments, or of any interest 
 therein, purchased at public auction in the city of Baltimore, shall be entitled to 
 pay the auction duty on such sale, and to claim the said payment as a credit on 
 his purchase as aforesaid. 
 
 § 92. All goods and property of what kind soever shall in all cases be struck 
 off to the highest bidder; and where the auctioneer or owner, or any person 
 employed by them or either of them, shall be such bidder, the goods or property 
 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. 
 
 § 93. The governor, by and with the advice and consent of the senate, shall 
 biennially appoint as many auctioneers in the city of Baltimore as he may think 
 proper, — not exceeding twenty. 
 
STATUTES. 423 
 
 § 94. Each person so appointed, the amount of whose sales of goods, wares, 
 merchandise and property of every kind, exclusive of his real-estate sales and 
 sales of houses, shall not exceed the sum of one hundred and fifty thousand dol- 
 lars, shall, before entering upon the duties of his office, enter into a recognizance 
 to the state, with two sufficient securities in the sum of five thousand dollars condi- 
 tioned for the payment of the duties hereinbefore mentioned to the Treasurer of 
 Maryland, and that he shall in all things well, truly and faithfully behave and 
 conform himself, according to the true intent and meaning of this law, and shall 
 also pay to the Treasurer of Maryland the sum of four hundred and fifty dollars 
 as a license-fee. 
 
 § 95. [As amended by St. 1872, Chap. 249.J Any auctioneer, executing the 
 bond and paying the license-fee prescribed in the last aforegoing section, may make 
 sales of every description of goods, wares and merchandise of every kind and real 
 estate, and may exercise all the rights and privileges of a general auctioneer to the 
 extent and amount of the sum prescribed in said sections; and he shall make 
 under oath quarterly returns to the Comptroller of the City of Baltimore, showing 
 the full amount of his sales of every kind, distinguishing his sales of goods, wares 
 and merchandise and personal effects of every kind from his sales of real estate 
 and houses ; but any auctioneer taking out a special license, as provided in article 
 four, section eighty-six of Public Local Laws, in regard to auctions in Baltimore 
 City to sell at public auction stocks of any banks or other incorporated institutions, 
 state or city wares, shall not be required to make any return of sales of such 
 securities; and if any auctioneer under said license shall sell any amount exceed- 
 ing the sum named in the last preceding section, he shall be subject to all the 
 penalties hereinafter imposed upon auctioneers who shall sell without license. 
 
 § 96. Every auctioneer so appointed v^'hose sales of goods, wares and mer- 
 chandise, and personal effects of every kind, exclusive of his sales of real estate and 
 sales of houses, shall exceed the sum of one hundred and fifty thousand dollars, 
 shall, before he enters upon the duties of his office, enter into a recognizance to 
 the state, with two sufficient securities in the sum of ten thousand dollars, condi- 
 tioned as herein before prescribed, and shall pay to the Treasurer the sum of seven 
 hundred and fifty dollars as a license-fee. 
 
 § 97. If any person so appointed shall desire to pursue the business of an auc- 
 tioneer, for the sole purpose of selling books, maps, or prints, by day or by night, 
 he shall be entitled to do so by first entering into a recognizance to the state with 
 two sufficient securities in the penalty of five thousand dollars conditioned as 
 hereinbefore prescribed, and by paying to the Treasurer the sum of one hundred 
 and fifty dollars. 
 
 § 98. If any person so appointed shall desire to pursue the business of an auc- 
 tioneer for the sole purpose of vending horses and carriages, he shall be entitled 
 to do so by first entering into a recognizance to the state with two sufficient securi- 
 ties in the sum of one thousand dollars, and paying to the Treasurer the sum of 
 fifty dollars as a license-fee. 
 
 § 99. A hcense may, on the request or with the consent of the party, be issued 
 by the Treasurer nunc pro tunc, so as to avail him for a year from the day on 
 which his license expired, or in such manner as to avail him for any part of the 
 interval the apphcant may desire, but no license issued under this section shall 
 acquit the party obtaining it of any penalty hereby imposed for selling without 
 license, if prosecution therefor shall have commenced before such license was 
 obtained. 
 
 § 100. In case of the death of any auctioneer before the time limited in his 
 license expired, his copartner or copartners, if he has any, or his personal repre- 
 sentative, may continue to act under the license for the unexpired time. 
 
424 APPENDIX. 
 
 • 
 
 § loi. All recognizances directed to be taken by this law shall be taken by 
 the clerk of the Court of Common Pleas, and duplicates shall be made of the 
 record of every such recognizance by the clerk, one whereof shall be delivered, or 
 be caused to be delivered, by the auctioneer to the Treasurer within ten days after 
 the date of such record, and the other shall be retained by the clerk, who shall 
 be entitled to demand for the same from the auctioneer the sum of one dollar. 
 
 § 102. The Treasurer, on his being satisfied that the recognizance herein 
 required has been entered into by any of the persons appointed auctioneers by 
 the Governor, and upon his receiving the license-fee hereby required from such 
 person, shall issue a general or special license to such person as the person may 
 be entitled to for the terra of one year from the date of such license. 
 
 § 103. [As amended by St. 1872, Chap. 249.] If any person or persons not 
 appointed and authorized in the manner herein directed, nor by nor under some 
 official authority under the laws of the United States, shall sell or attempt to sell 
 any goods, wares or merchandise, or effects of any kind, real estate, or vessels, in 
 the City of Baltimore by public auction, he shall be considered guilty of a mis- 
 demeanor and shall be subject to presentment and indictment in the Criminal 
 Court of Baltimore City, and shall on conviction be fined in a sum not e.\ceeding 
 five hundred dollars nor less than one hundred dollars, or be imprisoned for a 
 term not exceeding three months, or both at the discretion of the court. 
 
 § 104. [As amended by St. 1872, Chap. 249.] If any auctioneer shall sell any 
 goods, wares, merchandise or effects of any kind, or real estate or vessels, by way 
 of public auction, without having entered into the recognizance and paid the 
 license-fee hereinbefore required, he shall be deemed guilty of a misdemeanor, 
 and shall be subject to presentment and indictment in the Criminal Court of Balti- 
 more, and on conviction thereof shall be fined in a sum not exceeding one hun- 
 dred dollars nor less than fifty dollars for each and every article so exposed for 
 sale. 
 
 § 105. [As amended by St. 1872, Chap. 249.] If any auctioneer shall sell any 
 goods or property other than such as he is authorized to sell by the terms of his 
 license, he shall be deemed guilty of a misdemeanor and shall be subject to pre- 
 sentment and indictment in the Criminal Court of Baltimore, and on conviction 
 thereof shall be fined in a sum not exceeding one hundred dollars nor less than 
 fifty dollars for each and every article so sold. 
 
 § io6. If any person commissioned as auctioneer shall neglect to take out a 
 license within twenty days after his commission shall have been forwarded to him 
 by the Governor, such commission shall be deemed null and void, and the Gover- 
 nor shall appoint some other person to supply the vacancy in the number of auc- 
 tioneers caused by such neglect. 
 
 § 107. The recognizance herein required shall be annually renewed. 
 
 § loS. If any security or securities entered into by any auctioneer shall remove 
 from this state or become insolvent, the Treasurer shall demand other security 
 or securities in his or their place, and if the auctioneer shall neglect or refuse to 
 give other security within three days after the demand is made, his license shall 
 henceforth be null and void to all intents and purposes, as if the same had never 
 been granted, and the Treasurer shall immediately give public notice thereof in 
 two or more public newspapers published in said city. 
 
 § log. If any auctioneer appointed under the law shall accept at any time 
 during the continuance of his appointment an appointment as auctioneer from 
 any other state, he shall be deemed to have forfeited his appointment under the 
 law. 
 
 § 1 10. Every auctioneer in said city shall designate in writing his partner or 
 partners, if any are engaged with him in his said business, and the houses or stores 
 
STATUTES. 425 
 
 occupied by him for the transaction of auction business, and shall deposit such writ- 
 ing with the Treasurer; and if any auctioneer in said city shall enter upon the duties 
 of his office before so doing, he shall be deemed guilty of a misdemeanor, and on 
 conviction shall be fined in a sum not exceeding five hundred dollars, and it shall 
 be the duty of the court before whom such conviction is had to transmit forthwith 
 a particular report thereof to the Governor, who may in his discretion inhibit the 
 person convicted from acting as auctioneer during his pleasure. 
 
 § m. The mayor of the city may designate the place or places for the sale 
 of horses and carriages, and make such regulations in respect to the time and 
 manner of selling horses and carriages at auction, and the riding and driving such 
 horses and carriages, as he shall deem best calculated to promote public con- 
 venience and protect the persons of individuals from danger. 
 
 § 112. Every auctioneer appointed and licensed for the sale of horses shall 
 keep a registry of all horses sold by him, specifying a description of the horse 
 sold, the sum for which he sold, and the name and residence of the seller and 
 buyer, and shall deposit such registry, with an oath of the truth thereof, at the end 
 of each year, with the clerk of the Court of Common Pleas. 
 
 § 113. No auctioneer specially licensed for selling books, maps or prints, shall 
 be entitled to demand or receive, without a previous agreement to the contrary, 
 from any person, directly or indirectly, a commission exceeding seven dollars and 
 fifty cents for every one hundred dollars of the purchase-money arising from such 
 sales, exclusive of all duties. 
 
 § 114. No auctioneer licensed to sell to the amount of one hundred and fifty 
 thousand dollars, without a previous agreement to the contrary, shall be entitled 
 to demand or receive for his services, directly or indirectly, a commission exceed- 
 ing four dollars clear of all duties for every hundred dollars of the purchase-money 
 arising from such sales. 
 
 § 1 15. No auctioneer hcensed generally for the sale of goods, wares and mer- 
 chandise exceeding one hundred and fifty thousand dollars, without a previous 
 agreement to the contrary, shall be entitled to demand or receive for his services, 
 directly or indirectly, a commission exceeding two dollars clear of all duties for 
 every hundred dollars of the purchase-money arising from such sales, except upon 
 sales of furniture and wearing apparel, upon which they shall be entitled to receive 
 four dollars clear of duties for every hundred dollars arising from such sales; and 
 except also upon sales of books, stationary, maps and fruits, upon which they shall 
 be entitled to receive seven dollars and fifty cents clear of duties, for every hun- 
 dred dollars arising from such sales; and upon these articles the auctioneer 
 mentioned in the preceding section may charge a similar amount. 
 
 § 116. Any auctioneer who shall receive or accept any greater or higher 
 reward for his services than is authorized by this article, shall forfeit the sum of 
 five hundred dollars for every offense, to be recovered in the name of the state by 
 suit, or by indictment in the criminal court, one-half to the use of the state and 
 the other half to the use of the party prosecuting for the same. 
 
 § 117. [As amended by St. 1872, Chap. 249.] No auctioneer shall authorize 
 or permit any person whatever to sell any property of any description whatever 
 under and by virtue of his license, except the person so authorized and permitted 
 is actually and bond fide in the employment of such auctioneer, and is actually and 
 bond fide a resident of Baltimore City at the time of such employment, and the 
 commissions on such sales are actually and bond fide for the benefit of such 
 auctioneer; and no license shall be construed to authorize the holder to sell at 
 more than one regular establishment; but an auctioneer may sell public stocks, 
 houses, lots and furniture, or ships and vessels on the premises where the same 
 may be, or at the exchange, or goods in the original form and package as imported, 
 
425 APPENDIX. 
 
 and bulky articles such as have usually been sold in warehouses, or in the public 
 streets or on the wharves, at such other places in the city as shall be desired by 
 the owner or importer of such bulky articles or imported goods. 
 
 § Ii8. [As amended by St. 1872, Chap. 249.] If any auctioneer shall violate 
 any of the provisions of the last preceding section, he shall be deemed guilty of a 
 misdemeanor for every such violation, and shall be subject to presentment and 
 indictment in the Criminal Court of Baltimore, and on conviction thereof shall be 
 fined in a sum not exceeding two hundred dollars nor less than one hundred 
 dollars. 
 
 § 119. [As amended by St. 1872, Chap. 249.] Every auctioneer shall, within 
 thirty days after the first days of January, April, July and October of the year 
 for which he shall have been appointed, and in each and every year that he shall 
 hold and continue in the office and duty of such auctioneer, render to the Comp- 
 troller of the City of Baltimore a true and particular account in writing of the 
 money or sums of money for which any goods, wares or merchandise, or other 
 property of every kind, shall have been sold at every sale since entering on the 
 duties of his office, or since the last account was rendered, of the amount of 
 each day's sales and the days when sold, distinguishing the sales made by him 
 personally or in his presence, and those made by his partner or partners or clerk 
 in consequence of his absence; setting forth also the amount of all goods, wares, 
 merchandise and other property sent or entrusted to him, his partner or partners, 
 for sales and [by] him or them sold at auction, and the days on which the same 
 were sold, and particularizing the amount of the several duties chargeable on said 
 sales, duplicate copies of which said accounts, properly sworn to as hereinafter 
 required, shall be transmitted to the Comptroller of the state by every such auc- 
 tioneer within the said thirty days after the said first days of January, April, July 
 and October of the year or years as aforesaid; and every auctioneer shall, within 
 thirty days after rendering such account, pay over to the said Comptroller of Balti- 
 more City for the use of the state, subject to the provisions hereinafter contained, all 
 such sura or sums of money as appear to be due from him to the state for duties 
 according to law. 
 
 § 120. [As amended by St. 1872, Chap. 249.] The auctioneer making such 
 returns shall, at the time of making the same, take before some Justice of the 
 
 Peace or Judge of a Court of Record the following oath : " I, , do solemnly 
 
 and sincerely swear that the account now exhibited by me, and to which I have 
 subscribed my name, contains a just and true account of all the goods, w.ires and 
 merchandise, and property of every kind, sold or struck off by me at public sale, 
 or sold at private sale on the days of my public auctions, or sold or struck off as 
 aforesaid by my copartner or copartners (if any there be), or by others in my 
 name or under my direction and in my actual and bond fide employment (as the 
 case may be), and the days upon which the same were respectively sold; that I 
 have examined the entries of all sales mentioned in said account in the books 
 kept by me for that purpose, and I fully believe this account to be correct; and 
 further, that I have, during the time mentioned, conformed in all things to the 
 provisions of the law relating to auctions in Baltimore City, according to the best 
 of my knowledge and belief, so help me God." And he shall cause a certificate of 
 the fact that he has taken such oath, duly signed by said Justice or said Judge, 
 and a certificate of the Clerk of the Superior Court of Baltimore City of the official 
 character of said Justice when signed by him, to be annexed to said return; and 
 no account or return of sales, as provided to be made and rendered in the last 
 preceding section, shall be deemed or held to be a true and particular account, 
 within the meaning of said last preceding section, unless the oath herein provided 
 is made and annexed to such account or return of sales; and the auctioneer 
 
STATUTES. 
 
 427 
 
 refusing or neglecting to make and to annex such oath shall be liable to be pro- 
 ceeded against as if he had not made and rendered any account or return of sales 
 as required by law. 
 
 § 121. [As amended by St. 1872, Chap. 249.J If any auctioneer shall refuse or 
 neglect to transmit to the treasurer a duplicate of the record of his recognizance 
 as heretofore required, or shall neglect or refuse to render an account of sales to 
 the Comptroller of the City of Baltimore quarter-yearly, or shall refuse or neglect 
 to transmit a duplicate copy of the account to the Comptroller of the state, within 
 the time or times limited for rendering such accounts or transmitting such dupli- 
 cates, as provided in section one hundred and nineteen of this law; or shall refuse 
 or neglect to pay over to the Comptroller of the city as hereinbefore required the 
 money or moneys due from him to the state for duties according to law, within 
 thirty days after rendering such account as hereinbefore directed, he shall on and 
 for each and every such case of refusal and neglect, be deemed guilty of a misde- 
 meanor, and shall be subject to presentment and indictment in the Criminal Court 
 of Baltimore, and on conviction thereof shall be fined in a sum not exceeding 
 seven hundred dollars nor less than one hundred dollars, and on conviction shall 
 further be deemed to have forfeited his appointment as auctioneer, and shall 
 thereby be disqualified from acting as auctioneer under the same; provided 
 it shall be competent for such auctioneer at the trial of such suit to give in 
 evidence every matter or thing going to show a satisfactory excuse on his 
 part for such neglect or refusal, and that if the jury before which such suit 
 shall be tried shall think such excuse satisfactory, they shall return a verdict for 
 the defendant, the defendant however in such case to pay the costs of the prose- 
 cution ; and provided further, that no suit or indictment or conviction under this 
 section for the penalties herein contained shall be held to bar or prevent the state 
 from bringing such civil action or actions in any of the courts of this state against 
 any auctioneer or on his bond for the recovery of any money or moneys that may 
 be due to the state, or for the nonperformance or misperformance of any duty 
 imposed upon him by this law, and for which a civil action would lie against him 
 or on his bonds. 
 
 § 122. Every auctioneer who, within the period limited for his accounting, 
 shall have made no sales of goods or property of any kind liable to auction duties 
 shall make and subscribe an affidavit of these facts before the Judge of the Court 
 of Common Pleas, and shall transmit a copy of the said affidavit, certified by the 
 said Judge, to the Treasurer, within the same time that an account is required to 
 be rendered under the penalty prescribed in the last preceding section. 
 
 § 123. It shall not be lawful for the Governor to nominate to the senate as 
 auctioneer any person who shall have not settled in full at the treasury office for 
 all amounts due from him on account of auction duties. 
 
 § 124. [As amended by St. 1872, Chap. 249.] If any auctioneer shall be guilty 
 of any fraud or deceit in the discharge of the duties of his office, or shall elude 
 or defeat any provisions of this law for a violation of which no penalties are 
 therein specifically prescribed, he shall be deemed guilty of a misdemeanor, and 
 subject to presentment and indictment in the Criminal Court of Baltimore, and 
 on conviction thereof shall be fined in a sum not exceeding one thousand dol- 
 lars nor less than one hundred dollars for every such offense, and if any auc- 
 tioneer shall pay or cause to be paid directly or indirectly, to any trustee, attorney, 
 executor or administrator selling real estate or property of any kind under any 
 order of court or under any power of attorney any portion of the fee or commis- 
 sions received or receivable or by him and charged by him in his account for mak- 
 ing any sale of such real estate or property for such trustee, attorney, executor or 
 administrator, he shall be deemed guilty of a- misdemeanor, and on conviction 
 
428 APPENDIX. 
 
 thereof in the Criminal Court of Baltimore shall be fined in a sum not exceeding 
 two hundred dollars nor less than fifty dollars for every such offense. And such 
 trustee, attorney, executor or administrator receiving or retaining such portion of 
 such fee or commissions, and not accounting for it to the proper parties, shall be 
 liable to a suit on his bond for double the amount so received or retained by him, 
 to the cestui que trust, the principal, or any person interested in the estate which 
 he represents. 
 
 § 125. If no person shall within seven days after any such offense shall be com- 
 mitted, prosecute for the penalties imposed by this law, the treasurer, upon informa- 
 tion thereof having come to his knowledge, shall direct the state's attorney for the 
 City of Baltimore to prosecute for the same, and the penalties when recovered 
 shall be paid into the treasury for the use of the state. 
 
 § 126. If any person shall wilfully swear falsely touching any matter herein- 
 before required to be verified by oath, he shall suffer the pains and penalties 
 which by law are prescribed for wilful and corrupt perjury, and if an auctioneer, 
 shall forfeit his office. 
 
 § 127. [As amended by St. 1872, Chap. 249.] The proceeds of such auction 
 duties to the amount of twenty thousand dollars, shall be paid over by the Comp- 
 troller of Baltimore City, as the same shall be received by him, to the Mayor and 
 City Council of Baltimore, to be by said Mayor and City Council annually appro- 
 priated to the purpose of deepening and improving a channel in the Chesapeake 
 Bay and Patapsco River and the Harbor of the city of Baltimore. 
 
 § 128. [As amended by St. 1872, Chap. 249.] It shall be the duty of the 
 Mayor and City Council of Baltimore, on or before the fifteenth day of September 
 in each year, to report to the Comptroller of the state a fair and strict account of 
 their disbursement of the fund arising from said auction duties, as and to the 
 amount the same are appropriated as in the last preceding sections, in relation 
 to the deepening and improving said channel, Patapsco River, and Baltimore 
 City harbor; and the said Comptroller shall report the same to the General 
 Assembly. 
 
 § 129. [As amended by St. 1872, Chap. 249.] If the net proceeds of said 
 auction duties shall exceed the sum of twenty thousand dollars, the excess of said 
 duties above that sum shall, for each and every year that they exceed that sum, 
 be paid over by the Comptroller of the City of Baltimore to the Treasurer of the 
 state; and in case of such excess as aforesaid the Comptroller of the City of 
 Baltimore shall also render to the Comptroller of the state a brief statement or 
 account, showing the amounts received by him on account of auction duties, the 
 amount paid the Mayor and City Council of Baltimore under section one hundred 
 and twenty-seven of this law, and the balance due the state and payable to the 
 State Treasurer, which said balance, if any, and whenever the same shall arise 
 from said auction duties, shall be paid to said Treasurer on or before the twenty- 
 fifth day of September in each and every year. 
 
 § 130. The provisions of the three preceding sections shall not have any effect 
 if the City of Baltimore, by ordinance or otherwise, make any charge on articles 
 passing over or deposited on the wharves of that city for a less time than one day, 
 for the purpose of deKvery only, from or on board of any vessel trading within 
 the limits of this state other than the regular wharfage chargeable on said vessel. 
 
 § 131. Nothing herein contained shall prohibit the sale of leather, iron or 
 tobacco by the person who manufactured the same, without the license herein 
 required. 
 
STATUTES. 
 
 429 
 
 MASSACHUSETTS. — Public Statutes, 1882, Chap. 67. 
 
 § I. The mayor and aldermen or selectmen of any city or town may by writing 
 under their hands license one or more suitable inhabitants of their respective cities 
 and towns to be auctioneers within the same for the term of one year, and may 
 receive to the use of the city or town for each license two dollars. They shall 
 record every license in a book to be kept by them for that purpose. 
 
 § 2. If after application made to them in writing they unreasonably refuse or 
 neglect to license the applicant, he may, after giving them fourteen days' notice 
 and after giving bonds to pay all costs, apply to the county commissioners, who, 
 after hearing the parties, may grant a license. 
 
 § 3. Each auctioneer shall, if required, give bonds, in a reasonable penal sum, 
 and with sufficient sureties to the treasurer of the city or town where he is licensed, 
 with condition that he shall in all things conform to the laws relating to auctioneers. 
 
 § 4. Every auctioneer shall keep a fair and particular account of all goods 
 and chattels sold by him, and of the persons from whom such goods and chattels 
 were received, and to whom they have been sold. 
 
 § 5. An auctioneer who receives for sale by auction any goods from a minor, 
 knowing him to be such, or who sells by auction any of his own goods before sun- 
 rise or after sunset, shall forfeit to the use of the town a sum not exceeding two 
 hundred dollars for each offense. 
 
 § 6. An auctioneer may sell at public auction in any place within his county; 
 and when employed by others may sell real or personal estate in any place within 
 the commonwealth if such sale is made where such real or personal estate is 
 situated. If an auctioneer sells by auction in a place where he is not authorized 
 to sell, he shall forfeit fifty dollars. 
 
 § 7. If a person sells or offers for sale by auction any goods or chattels except 
 as is provided in this chapter, such goods or chattels shall be forfeited to the use 
 of the city or town in which such sale is made, and may be seized by the mayor 
 and aldermen or selectmen, and libelled according to. the provisions of chapter 
 one hundred and ninety-four. 
 
 § 8. The tenant or occupant of a house or store, having the actual possession 
 and control of the same, who knowingly permits a person to sell real or personal 
 estate by public auction in such house or store, or in any apartment or yard appur- 
 tenant to the same, contrary to the provisions of this chapter, shall forfeit a sum 
 not exceeding five hundred dollars. 
 
 § 9. If a person, not licensed and qualified as an auctioneer, sells or attempts 
 to sell any real or personal estate by public auction, he shall for each offense 
 forfeit a sum not exceeding five hundred dollars. 
 
 § 10. Nothing in the preceding sections shall extend to sales made by sheriffs, 
 deputy-sheriffs, constables, collectors of taxes, executors, administrators, guardians, 
 assignees of insolvent debtors, or by any other person required by law to sell real 
 or personal estate. 
 
 § II. Every auctioneer or other person who is guilty of fraud or deceit in rela- 
 tion to a sale by auction, shall for each offense forfeit a sum not exceeding one 
 thousand dollars. 
 
 § 12. Licenses may be granted upon such conditions respecting the places of 
 selling goods and chattels within a city or town as the mayor and aldermen or 
 selectmen deem expedient; and if an auctioneer makes a sale by auction at a 
 place not authorized by his license, he shall be liable to like penalties as if he had 
 sold without a license. 
 
430 APPENDIX. 
 
 MICHIGAN. — Howell's Annotated Statutes, 1882, Chap. 28. 
 
 § 1267. Any citizen of this state may become an auctioneer within the county 
 in which he resides, on executing and delivering to the treasurer of such county a 
 bond in the penal sum of two thousand five hundred dollars with two or more 
 sufficient sureties to be approved by such treasurer, conditioned for the payment 
 to such treasurer of all auction duties upon goods or property which may be sold 
 by him according to law. 
 
 § 1268. Every person who shall have executed and delivered such bond to the 
 county treasurer shall, for the term of four years next after the date of such bond, 
 be an auctioneer within such county, and be authorized to perform and carry on 
 the business of an auctioneer, and shall conform to the provisions hereinafter 
 contained. 
 
 § 1269. If such auctioneer reside in either of the cities of this state, he shall, 
 on the first Monday of each month, and if he reside in any other place, then on 
 the first Monday of April and October in each and every year, make out a state- 
 ment in writing verified by his oath, and deliver the same to the county treasurer, 
 in which statement he shall designate particularly 
 
 I. The sums for which all the goods, at every auction held by him after 
 delivering such bond, or the date of his last preceding statement, were 
 sold; 
 
 II. The days on which sales were so made by him, and the amount of sales 
 on each day; 
 
 III. The amount of duties chargeable under the provisions of this chapter. 
 
 § 1270. Every such statement, verified as aforesaid, shall, within ten days 
 after the date thereof, be delivered by such auctioneer to the treasurer of the 
 county in which he resides, and such auctioneer shall, at the time of delivering 
 such statement, pay over to such county treasurer the duties chargeable by law 
 upon the sales specified in such statement, and take the treasurer's receipt there- 
 for, which receipt shall be countersigned by the clerk of the same county, who 
 shall make an entry of the amount thereof in a proper book to be kept by him 
 for that purpose. 
 
 § 1 27 1. Every county treasurer shall, immediately after receiving such state- 
 ment, forward the same to the auditor general, and shall pay over all auction 
 duties received by him to the state treasurer, in such manner as such treasurer 
 shall direct. 
 
 § 1272. The following articles and no others shall be subject to the payment 
 of the following duties, if sold at auction : 
 
 I. All ardent spirits, wines, and intoxicating liquors, whether foreign or 
 domestic, shall be liable to the payment of a duty of two and a half per 
 cent.; 
 
 II. All goods, wares and merchandise of every description, imported from 
 any place without the United States, shall be liable to the payment of a 
 duty of one and a half per cent., at each and every time they are so 
 exposed for sale. 
 
 § 1273. Goods and chattels otherwise liable to auction duties shall be exempt 
 therefrom if sold under the following circumstances : 
 
 I. If they shall belong to the United States or this state. 
 
 II. If they shall be sold in pursuance of any order, judgment or decree of 
 any court of law or equity, or under any seizure or distress by any public 
 officer. 
 
STATUTES. 43 1 
 
 III. If they shall belong to an estate of a deceased person, and be sold by 
 his executors or administrators, or by any other person duly authorized by 
 any judge of probate. 
 
 IV. If they shall be the effects of a bankrupt or insolvent, and be sold by 
 his assignee appointed pursuant to law, or by a general assignment for the 
 benefit of the creditors of such bankrupt or insolvent. 
 
 V. If they shall be sold at any fair or other exhibition, the entire proceeds 
 of which are devoted to any association organized for charitable or 
 benevolent purposes, or for the relief of sick and wounded soldiers, or the 
 families of such soldiers. 
 
 § 1274. All goods, property and effects, liable to the payment of duties, shall 
 in all cases, when sold at auction, 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 which 
 would otherwise be deemed fraudulent and void. 
 
 § 1275. All duties shall be calculated on the sums for which the goods and 
 property exposed for sale shall be respectively struck off to the purchaser thereof. 
 
 § 1276. If any person shall act as an auctioneer in the sale of any goods or 
 property liable to the payment of duty under the provisions of this chapter, with- 
 out first having delivered to the county treasurer the bond herein required, such 
 person shall be deemed guilty of a misdemeanor, and on conviction thereof shall 
 be punished by a fine not exceeding five hundred dollars. 
 
 MINNESOTA. — General Statutes, 1878, Chap. XXVIII. 
 
 § I . The board of county commissioners may license for the term of one year 
 one or more legal voters of their county to be auctioneers. The county auditor 
 shall record every license granted. 
 
 § ;:. Each auctioneer, before making any sales as auctioneer, shall give a bond 
 to the treasurer in the county in which he resides, with sufficient sureties to be 
 approved by the said treasurer, in such penal sum as the said treasurer requires, 
 not less than one thousand dollars nor more than three thousand dollars, with 
 condition to pay all auction duties required by law to the treasurer of the said 
 county; and also that he will in all things well and truly conform to the laws 
 relating to auctioneers, which bond shall be filed in the office of the said treasurer, 
 with the indorsement of his approval thereon. 
 
 § 3. If any person licensed as aforesaid receives for sale at auction any goods, 
 wares, merchandise or personal property from any minor or servant, knowing 
 him to be such servant or minor, he shall forfeit a sum not exceeding two hun- 
 dred dollars for each offense. 
 
 § 4. Every licensed auctioneer shall keep a fair and particular account of 
 all goods, chattels and property sold by him, the names of the persons from 
 whom the same were received, and the names of the persons to whom the same 
 were sold. 
 
 § 5. If any person not licensed and qualified as an auctioneer as prescribed in 
 the preceding sections, sells or attempts to sell any real or personal property at 
 public auction, he is guilty of a misdemeanor, and shall be punished by a fine not 
 exceeding one hundred dollars for each offense. 
 
 § 6. The tenant or occupant of any house or store, having the actual possession 
 and control of the same, who knowingly permits any person to sell any real or 
 personal property at public auction in his said house or store, or in any apartment 
 
432 APPENDIX. 
 
 or yard appurtenant to the same, contrary to the provisions of this chapter, shall 
 forfeit a sum not exceeding one hundred dollars. 
 
 § 7. Nothing in this chapter shall extend to sales made by sheriffs, deputy 
 sheriffs, coroners, constables or collectors of taxes. 
 
 § 8. No license granted as aforesaid shall remain in force more than one year 
 from the date thereof. 
 
 Chapter XLI. 
 
 § 8. Whenever goods are sold at public auction, and the auctioneer at the 
 time of sale enters into a sale-book a memorandum specifying the nature and 
 price of the property sold, the terms of the sale, name of the purchaser, and the 
 name of the person on whose account the sale was made, such memorandum shall 
 be deemed a note of the contract of sale within the meaning of the [statute of 
 frauds] . 
 
 MISSISSIPPI. — Revised Code, 1880. 
 
 § 585. A tax on privileges is levied as follows, to wit. 
 
 Each auctioneer in a town of pot more than one thousand inhabitants, five 
 dollars. 
 
 Same in city or town of more than one thousand and not more than three 
 thousand inhabitants, twenty dollars. 
 
 Same in city or town of more than three and less than five thousand inhabi- 
 tants, twenty-five dollars. 
 
 Same in city or town of more than five thousand inhabitants, thirty dollars. 
 
 § 587. The privileges taxed as above provided shall not be taxed by the board 
 of supervisors of any county, 'nor shall they be subject to taxation by any city or 
 town to an amount exceeding fifty per centum of the amount above specified, 
 unless expressly provided for by law. 
 
 § 589. Any person other than banks of deposit or discount in cities or towns 
 of more than four thousand inhabitants, and insurance, express, telegraph and 
 sleeping car companies, desiring to enjoy any of the privileges enumerated in this 
 chapter, shall first pay the tax as prescribed to the collector of taxes in the county, 
 and obtain from him the license herein required for such privilege; and any 
 person who shall exercise in this state any of the privileges enumerated in this 
 chapter without first paying the price and procuring license as required, shall on 
 conviction be fined not less than double the tax imposed on such privilege, or 
 shall be imprisoned in the county jail not more than six months, or by both such 
 fine and imprisonment; and all contracts made with any person who shall violate 
 this act, in reference to the business carried on in disregard of this law, shall be 
 null and void, so far only as such person may base any claim upon him, and no 
 suit shall be maintainable in favor of such person upon any such contract. 
 
 § 591. The said licenses shall be numbered consecutively for each county, 
 commencing with the number one; and each series shall be for one year, ending 
 with the thirtieth day of April of each year. Licenses granted by each collector 
 on or after the first day of May of each year shall be of a new series, commencing 
 \\'ith number " one " for each county. 
 
 § 594. Each tax collector shall make a requisition upon the auditor of public 
 accounts for as many of the licenses for privileges above provided for of the 
 different denominations as he thinks he will need for his county, which licenses, 
 blank as to name of person and date, shall be furnished him by the auditor, and 
 
STATUTES. 433 
 
 upon application and payment to him of tlie tax imposed on any of said privi- 
 leges, the tax collector shall issue to the applicant for it a license as aforesaid, 
 and shall date each license the first day of the month of its issuance, and it shall 
 be good for one year from that date ; and he shall in his official capacity counter- 
 sign all such licenses when issued by him; and he shall keep in his office a book 
 in which he shall enter the number of the license, its date, the name of the 
 _ licensee, the privilege hcensed, the time when the license will expire, and the 
 amount collected by him for it, which book shall be subject at all times to 
 the inspection of any officer or citizen of the state. Any one failing to pay the 
 privilege tax herein imposed and to obtain license as herein required, but pursuing 
 the business taxed without such license, may be proceeded against by suit for such 
 tax, besides being dealt with criminally as herein provided, and the tax collector 
 may assess such tax, arid seize and sell any property of such person liable for such 
 tax, in the same manner as he may distrain and sell property of other delinquents. 
 § 595. The license herein provided for shall be a personal privilege, enjoyable 
 only by the person to whom it is issued, and it shall not be transferable; and 
 such license shall not exempt from taxation any property used in the business 
 licensed, except as specially provided for in this chapter. 
 
 MISSOURI. — Revised Statutes, 1879, Chap. 78. 
 
 § 4160. No person shall exercise the trade or business of a public auctioneer 
 by selling goods or other property subject to duty under this chapter, or real 
 estate, without a license. 
 
 § 4161. Every person who shall exercise the trade or business of an auctioneer 
 without a license shall be liable for the amount of duty payable by law on the 
 property sold. 
 
 § 4162. The clerks of the respective county courts shall issue at each term as 
 many blank auction licenses for ten days, and for one, three, and six months 
 respectively, as the county courts shall direct. 
 
 § 4163, The licenses shall be under the seals of the respective county courts, 
 signed by the clerk, and shall authorize the persons to whom granted to exercise 
 the trade and business of auctioneers by selling any property, real or personal, by 
 auction, within the county, for the period of time specified in such license. 
 
 § 4164. The clerk shall deliver the blank licenses so issued to the collectors 
 of tlie counties respectively, and charge them with the amount thereof, in a book 
 to be kept for that purpose. 
 
 § 4165. The county court shall at every term settle with the collector for all 
 blank licenses delivered to him and not before accounted for, and give him credit 
 for all blank licenses returned and charge him with all not returned; and as soon 
 as may be, the clerk shall, under the direction of the county court, certify to the 
 state auditor the amount with which each collector stands charged, who shall 
 charge such collector therewith. 
 
 § 4166. Each collector shall grant to any person, upon application, and upon 
 compliance with the requirements of this chapter, an auction license, for ten days, 
 or for one, three, or six months, and for that purpose fill up and countersign one 
 of the blank licenses received from the clerk. 
 
 § 4167. There shall be levied upon every license, to be paid to the collector 
 before the delivery thereof, as follows : 
 
 1. On each license for ten days, ten dollars. 
 
 2. On each license for one month, twenty-five dollars. 
 
 3. On each license for three months, fifty dollars. 
 
 4. On each license for six months, seventy-five dollars. 
 
434 APPENDIX. 
 
 § 4168. In each case of a license delivered, there shall be paid to the collector 
 fifty cents as a fee to the clerk. 
 
 § 4169. No person shall be permitted to sell property at auction, of any kind, 
 unless he shall have resided in this state six months next preceding the time of 
 making application for license. 
 
 § 4170. Before any license shall be granted, the applicant shall give bond to 
 the state of Missouri, in a sum not exceeding three thousand dollars nor less than , 
 five hundred dollars, with one or more sufficient sureties residents of the county, 
 the amount of the bond and the sufficiency of the security to be determined by 
 the collector, with condition that he will, on the first Monday of February, May, 
 August, and November in each year, while he shall continue the business of auc- 
 tioneer, render to the clerk of the county court a true and particular account in 
 writing of the aggregate amount in money of all property subject to duty by this 
 law sold by him at auction, or sold at his auction store or rooms at private sale, 
 that is to say : First, from the date of the bond until such of the aforesaid days as 
 shall ensue next thereafter, and thenceforth from the day to which any account 
 shall last have been rendered until such of the said days as shall next thereafter 
 ensue, and so on in succession, from one of the said days to another, so long as 
 he shall continue to exercise the calling of an auctioneer, and also shall pay all 
 such sums of money as shall be due to the state upon such sales to the collector 
 of the proper county ; and the bond shall be filed in the office of the clerk of the 
 county court. 
 
 § 4171. Any licensed auctioneer may sell or retail goods at his auction store 
 or rooms, so long as he continues the business of an auctioneer, without a license 
 as vendor of merchandise, so that he render a true account of the sales, and pay 
 the like duty thereon as if such sales were made at auction. 
 
 § 4172. There shall be levied and paid upon the proceeds of the sale of all 
 property at auction, except as hereinafter excepted, a duty to the state on the 
 proceeds of all sales of personal property, except corporation stocks, one and a 
 half per cent. 
 
 § 4173. In all cases where the auctioneer or owner of the property sold, or any 
 person employed by them or either of them, shall become the purchaser, such 
 sales shall be subject to the same duties as if any other person had become the 
 purchaser. 
 
 § 4174. All sales at auction of any part or parcel of any merchandise or other 
 property, with a design to ascertain and fix a price for the whole or any part 
 thereof, without exposing the whole or such other part to public sale, shall be 
 deemed a sale at auction of the whole or such part of the property, the price of 
 which was designed to be fixed by such public sale of the part; and duties shall 
 be paid thereon accordingly. 
 
 §4175. Sales of property at auction shall be free of duty in the foUowdng 
 cases: First, when directed by any statute of this state or of the United States; 
 second, in execution of any order, judgment or decree of any court or justice of 
 the peace of this state or court of the United States, in cases of bankruptcy or 
 insolvency, pursuant to any law of this state or the United States; third, when 
 sold by any trustee, in conformity to a deed of trust, to secure the payment of 
 debts; fourth, property of deceased persons, sold by authority of executors or 
 administrators; fifth, boats, vessels, rafts, lumber and other property \vrecked, 
 stranded, or found adrift in any of the waters of or adjoining this state; sixth, 
 live stock, agricultural productions, farming utensils and household and kitchen 
 furniture sold by the owner; seventh, land or leasehold interest therein; eighth, 
 each licensed merchant shall have the privilege of selling off at auction, at the 
 end of every twelve months after the commencement of his business, any refused 
 
STATUTES. 435 
 
 stock of goods which he may have had on hand for six months preceding, with- 
 out obtaining an auctioneer's license for that purpose. 
 
 § 4176. The auctioneer shall pay over to the collectors of the proper counties 
 all the duties imposed by this law, and for that purpose may retain the amount 
 out of the proceeds of the property sold, and shall be allowed a commission of one 
 per centum on the amount so paid. 
 
 § 4177. Auctioneers shall render their accounts according to the condition of 
 their bond to the clerk of the county court of the respective counties in which 
 they transact their business, and shall make oath or affirmation before such clerk 
 to the truth of every such account rendered; in default of which, such account 
 shall not be deemed truly rendered, according to the condition of their bond. 
 
 § 4178. Upon such account being rendered, the clerk shall ascertain the 
 amount of duties to be paid by the auctioneer, and shall give him a certificate 
 thereof; and the auctioneer shall pay the same to the collector within twenty days 
 thereafter ; and upon producing to the clerk the receipt of the collector for the 
 amount, the clerk shall grant him a quietus therefor. 
 
 § 4179. The clerk shall charge the collector with the amount rendered, and 
 certify the same to the state auditor without delay, and the auditor shall charge 
 the collector accordingly. 
 
 § 4180. When it shall appear to the satisfaction of the clerk of the proper 
 county court that any auctioneer has fulfilled the condition of his bond and the 
 requirements of this law, he shall endorse a certificate thereof upon his bond, 
 which shall hs prima facie evidence of the performance of the condition down to 
 that time. 
 
 §4181. When any auctioneer shall fail to fulfil the condition of his bond or 
 the requirements of this law, the proper clerk shall cause him to be prosecuted on 
 his bond; and if judgment shall be rendered against him, his license shall be 
 thereby vacated, and he shall be incapable to receive a new license, unless by the 
 express direction of the county court. 
 
 § 4182. It shall be the duty of the collectors in the several counties to collect 
 the duties herein imposed, and to prosecute for all fines and forfeitures which may 
 be incurred under it. 
 
 § 4183. The county courts of the several counties in this state and the city of 
 St. Louis shall have power to graduate the license-tax to be imposed on each 
 license to be granted under the provisions hereof: provided that such tax to the 
 state shall not be less than ten nor more than one hundred dollars on each license 
 for six months, and such tax to the county shall not be less than the amount 
 charged for state purposes. 
 
 § 4184. Every person who shall violate any of the provisions of this chapter 
 shall be deemed guilty of a misdemeanor, and upon conviction shall be punished 
 by a fine of not less than twenty nor more than five hundred dollars, and shall 
 thereafter be debarred from exercising the rights or pursuing the business of an 
 auctioneer. 
 
 MONTANA. — Revised Statutes, 1879. 
 
 § 799. All auctioneers shall procure a license, and shall pay therefor as fol- 
 lows : Those who shall sell or offer for sale cattle, horses, mules or other live 
 stock, in any town or city containing two thousand or more inhabitants, shall pay 
 twenty-five dollars per month ; and all auctioneers who shall sell at auction any such 
 stoclj outside of any such town or city containing less than two thousand inhabi- 
 tants, shall pay fifteen dollars per quarter; and auctioneers who shall sell prop- 
 erty of any kind at public sale in any place as above specified shall procure a 
 
436 APPENDIX. 
 
 license, and shall pay therefor as follows : all such auctioneers who shall do busi- 
 ness in any town or city containing two thousand or more inhabitants shall pay 
 ten dollars per month; and all such auctioneers who shall sell outside of any town 
 or city, or in any town or city containing less than two thousand inhabitants, shall 
 pay fifteen dollars per quarter, or five dollars per month. 
 
 § 814. License may be granted under the provisions of this chapter for one 
 year or less, at the option of the applicant : provided, no license shall be granted 
 for a less time than that mentioned in the rates of assessments of licenses in this 
 chapter. 
 
 § 817. Any person or persons who shall transact any business, trade, or occu- 
 pation or profession, for which a license is required by this chapter, without first 
 obtaining the same, shall be deemed guilty of a misdemeanor, and upon convic- 
 tion before any court having competent jurisdiction be fined in any sum not less 
 than ten dollars nor more than one hundred dollars, and stand committed until such 
 fine shall be satisfied; and like proceedings shall be had thereon as in cases of 
 misdeameanor as prescribed by law. 
 
 NEBRASKA. — Compiled STATtrrES, 1881, Chap. 13. 
 
 § 15. The mayor and council of each city created or governed by this act shall 
 have the care, management and control of the city, its property and finances, and 
 shall have power to pass any and all ordinances not repugnant to the constitution 
 and laws of this state, and such ordinances to modify, alter or repeal, and shall 
 have power 
 
 22d. To regulate license or prohibit the sale of domestic animals, or of 
 goods, wares and merchandise at public auction on the streets, alleys, 
 highways or any public ground within the city. 
 
 23d. To regulate and license the auctioneering of goods, wares and mer- 
 chandise. 
 
 Chapter 14. 
 
 § 69. In addition to the powers hereinbefore granted cities and villages under 
 the provisions of this chapter, each city and village may enact ordinances or 
 by-laws for the following purposes : 
 
 8. To raise revenue by levying and collecting a license tax on any occupa- 
 tion or business within the limits of the city or village, and regulate the 
 same by ordinance. All such taxes shall be uniform in respect to the 
 classes upon which they are imposed : provided, however, that all scien- 
 tific and literary lectures and entertainments shall be exempt from such 
 taxation, as well also as concerts and other musical entertainments given 
 exclusively by citizens of the city or village. 
 
 NEVADA. — Compiled Laws, 1873. 
 
 By § 3878, ninth clause. The boards of county commissioners of the several 
 counties are authorized " to license and regulate auctioneers and stock-brokers." 
 
STATUTES. 
 
 437 
 
 NEW HAMPSHIRE. — General Laws, Chap. 119. 
 
 § I. Every hawker, peddler, and auctioneer merchant or trader, doing business 
 in any city or town of this state temporarily, who shall not on the first day of 
 April have been assessed on his stock of goods, . . . shall be punished by fine as 
 follows: For hawker and peddler, not more than one hundred dollars; for auc- 
 tioneer merchant, not more than two hundred dollars; for itinerant merchant, not 
 more than two hundred dollars. 
 
 § 2. The provisions of the preceding section shall not apply to any agent or 
 hired person whose business is to carry samples or specimens for wholesale trade, 
 nor for the sale or exposing for sale of fish, fruits, vegetables, provisions, fuel, 
 newspapers or any production of his own industry; nor to any citizen of this state 
 who shall present to the clerk of the supreme court a certificate from the select- 
 men of the town in which he resides of his inability to earn a subsistence by 
 manual labor, by reason of ill-health or decrepitude; which certificate shall be of 
 no effect till recorded by such clerk, who shall receive therefor twenty-five cents. 
 
 § 3. The clerk of the supreme court may grant such Ucense for one year only 
 upon application and satisfactory evidence being given of a good moral character. 
 Such license shall be recorded in the county clerk's records, and a copy of the 
 record given to the person applying, the fee for which shall be one dollar, to be 
 paid by the applicant. 
 
 § 4. Such license shall be of no avail until the person applying shall pay or 
 cause to be paid to the clerk in each county where he proposes to do business, as 
 follows : For hawker and peddler, the sum of ten dollars ; for auctioneer mer- 
 chant, the sum of twenty dollars; for itinerary or temporary merchant, the sum of 
 fifty dollars. And the said clerk shall sign a receipt for the same on the back of 
 said license; and the said clerk shall within ten days transmit such sum to the 
 state treasurer for the use of the state; and a receipt from the state treasurer 
 shall be a sufficient voucher for the faithful performance of the provisions of this 
 section. 
 
 § 5. Every license granted under the provisions of this chapter to any hawker 
 or peddler shall specially provide that the licensee shall not sell or expose for sale 
 distilled spirits, playing-cards, lottery-tickets or jewelry; and every such licensee 
 or other hawker or peddler who shall be guilty of selling or offering for sale any 
 playing-cards, lottery-tickets or jewelry, shall be punished by fine not exceeding 
 one hundred dollars. 
 
 § 6. If any hawker or peddler licensed as aforesaid shall transfer his license 
 to any other person, with intent that the same shall be fraudulently used by him, 
 or if any person licensed as aforesaid shall refuse to show his license when 
 requested by any person, he shall be punished in the same manner as for exposing 
 goods for sale without a license. 
 
 § 7. Every justice of the peace, on application, for every violation of the pro- 
 visions of the preceding section, may by warrant cause the offender to be arrested 
 and order him to recognize with surety for his appearance at the next term of the 
 supreme court in and for the county where such offence is committed to answer 
 for the said offence. And the fines for such offence shall be paid to the said clerk, 
 which shall by him be paid, one-half to the complainant, and one-half to the com- 
 plainant for the use of the state, in the same manner as the transmission of the 
 sum received for the Ucense. 
 
438 APPENDIX. 
 
 NEW JERSEY. — Revisiom of the Statutes, 1877, Page 812. 
 
 § I . That no person shall follow, use or exercise the business or calling of a 
 hawker, peddler, petty chapman, or itinerant auctioneer in this state, or shall go 
 or travel from town to town, or to the houses of other persons, either on foot or 
 with a horse or horses, mule or mules, or other beast or beasts of burthen, carry- 
 ing, selling or exposing, either at private or public sale, any goods, wares or mer- 
 chandise not the growth, product or manufacture of this state, until such person 
 shall have first obtained a license for that purpose in the manner hereinafter 
 directed. 
 
 § 2. That such license shall be granted by the governor of this state, or person 
 administering the government, upon a recommendation for that purpose by the 
 inferior court of common pleas of the county where the application for such 
 license maybe made; and that every person who shall obtain such license to 
 travel with a horse or horses or other beasts of burthen for the purpose of selling 
 goods, wares or merchandise, either at public or private sale, or both, shall pay 
 to the governor or person administering the government the sum of three dollars 
 and fifty cents; and every person who shall obtain a license to travel on foot for 
 the purpose aforesaid shall pay two dollars : provided, that no such license shall 
 be exercised or used until the person or persons licensed to travel with a horse or 
 horses, or other beasts of burthen, shall have first paid to the governor or person 
 administering the government the sum of fifteen dollars for the use of the state; 
 and the person licensed to travel on foot shall have first paid to the governor or 
 person administering the government the sum of eight dollars for the use of the 
 state; which said payment shall be indorsed by the governor or person adminis- 
 tering the government on the said license at the time of granting the same; and 
 which said license shall continue and be valid for one year only, unless continued 
 as hereinafter provided. 
 
 § 3. That if any person shall forge or counterfeit any license, or any such 
 indorsement thereon as before mentioned for the purpose of using the same, or 
 shall wilfully and knowingly travel with any such forged license, for the purpose 
 of selling as aforesaid, such person shall be deemed guilty of a misdemeanor, and 
 on conviction thereof shall be punished as in other cases of forgery. 
 
 § 4. That if any person, having obtained a license as aforesaid, shall lend or 
 hire the same to any person or persons, for the purpose of using or exercising the 
 same, such license shall thereby become void; and the person lending or hiring 
 such license, and the person using the same under color thereof, shall each forfeit 
 the sum of one hundred dollars, to be recovered in any court of competent juris- 
 diction, with costs of suit, in an action of debt, the one-half to the use of the 
 poor of the township in which the said suit shall be brought, and the other half 
 to the use of the person suing for the same. 
 
 § 5. That if any person shall be found hawking, peddling or travelUng from 
 house to house or from place to place to vend, either at public or private sale, any 
 goods, wares or merchandise, hereinbefore mentioned and described, without first 
 having obtained a license as hereinbefore mentioned, such person shall forfeit the 
 sum of fifty dollars, to be recovered in an action of debt by any person who may 
 sue for the same, the one-half to the prosecutor, and the other half to the use of 
 the state, before any justice of the peace of any of the counties in this state, 
 together with the costs of prosecution. [This penalty was increased by act of 
 March 18, 1858, to a fine not exceeding five hundred dollars or imprisonment for 
 not more than a year, or both.] 
 
 § 6. That nothing in this act contained shall prevent any person from selling 
 
STATUTES. 439 
 
 or exposing to sale any goods, wares or merchandise in any public market in this 
 state without a license for that purpose : provided always, that any person found 
 hawliing or peddling as aforesaid who shall, upon demand being made by any 
 person in this stale, refuse to produce and show such license as aforesaid, then the 
 person so offending shall forfeit and pay the sum of ten dollars for each offense, 
 to be recovered in an action of debt by any person who shall sue for the same. 
 
 [Further sections provide for the certifying and filing of licenses, impose addi- 
 tional fees to be paid to the county clerk, and forbid the sale of ardent spirits by 
 any persons having such licenses.] 
 
 NEW YORK. — Revised Statutes, Banks and Brothers, Seventh Edition, 
 1882. — Part I., Chap. 17. Of the Regulation of Trade in Certain Cases. 
 
 Title I. — Of Sales by Auctioneers. 
 
 § I. All goods, wares and merchandise, and every other species of personal 
 property, which shall at any time be exposed to sale by public auction within this 
 state, with the exceptions mentioned in the fourth and fifth sections of this title, 
 shall be subject, each and every time they shall be struck off, to duties at the fol- 
 lowing rates, namely : 
 
 1 . All wines and ardent spirits, foreign or domestic, at the rate of two dol- 
 lars on every hundred dollars. 
 
 2. All goods, wares, merchandise and efifects imported from any place 
 beyond the Cape of Good Hope, and sold in packages, bales, trunks or 
 casks as imported, at the rate of one dollar on every hundred dollars. 
 
 3. All other goods, wares, merchandise and effects, at the rate of one dollar 
 and fifty cents on every hundred dollars. 
 
 The duties shall be calculated on the sums for which the goods so exposed to 
 sale shall be respectively struck off, and shall in all cases be paid by the peraon 
 making the sale. 
 
 § 2. Goods sold by auction shall in all cases be struck off to the highest 
 bidder; and where 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. 
 
 § 3. All articles, except those mentioned in the fourth and fifth sections of this 
 title, which shall be sold on commission by an auctioneer, by a copartner or clerk 
 of an auctioneer, or by a person in any way connected in the auction business or 
 in auction sales with an auctioneer, whether at auction or private sale, shall be 
 liable to the duties before enumerated. But nothing in this section or title con- 
 tained was intended or shall be taken or construed to intend any sale or sales of 
 any articles, goods, wares or merchandise consigned, sent or delivered to any 
 person, firm or copartnership, where such goods shall have been or may be con- 
 signed, sent or delivered to any such person, firm or copartnership, with orders 
 or directions in good faith to be sold at private sale, and not at auction, and where 
 such goods shall not have been or be sold at auction. 
 
 § 4. No auction duties shall be payable upon the following goods and articles : 
 
 1. Ships and vessels. 
 
 2. Utensils of husbandry, horses, neat cattle, hogs and sheep. 
 
 3. Articles of the growth, produce and manufacture of this state, except 
 distilled spirits. 
 
44° APPENDIX. 
 
 4. All fabrics of cotton, wool, hemp and flax manufactured within the juris- 
 diction of the United States. 
 
 § 5. Goods and chattels otherwise liable to the auction duties shall be exempt 
 therefrom if they shall be sold under the following circumstances : 
 
 1. If they shall belong to the United States or to this state. 
 
 2. If they shall be sold under any judgment or decree of any court of law 
 or equity; or under a seizure by any public officer for or on account of 
 any forfeiture or penalty ; or under a distress for rent. 
 
 3. If they shall belong to the estate of a deceased person, and be sold by 
 his executors or administrators, or by any other person duly authorized by 
 a surrogate. 
 
 4. If they shall be the effects of a bankrupt or insolvent, and be sold by his 
 assignees appointed pursuant to law, or by a general assignment for the 
 benefit of all the creditors of such bankrupt or insolvent. 
 
 5. If they shall be goods damaged at sea, and be sold within twenty days 
 after they shall have been landed, for the benefit of the owners or 
 insurers. 
 
 § 6. All sales at public auction in the city of New York, not made under the 
 authority of the United States, and all such sales in other parts of the state where 
 duties are payable on the effects to be sold, shall be made by an auctioneer who 
 shall have given the security hereinafter required, or by a copartner or clerk of 
 an auctioneer duly authorized under the provisions of this title; but where no 
 duties are payable, all such sales, except in the city of New York, may be made 
 by any citizen of this state. 
 
 § 7. Every person who shall sell or attempt to sell at pubHc auction any goods 
 or effects contrary to the provisions of the last preceding section shall be deemed 
 guilty of a misdemeanor, punishable by fine or imprisonment or both in the dis- 
 cretion of the court by which he shall be tried : the fine in no case to exceed five 
 hundred dollars ; the imprisonment three months. 
 
 § 8. Every auctioneer, in case of his inability to attend an auction, by sickness, 
 by his duty as a fireman, by reason of military orders, or by his necessary attend- 
 ance in a court of justice, or in case of his temporary absence from the city or 
 place for which he is appointed, may employ a copartner or clerk to hold such 
 auction in his name and behalf, such copartner or clerk having previously taken 
 an oath, to be filed with the clerk of the county in which such auctioneer shall 
 reside, fully and faithfully to perform the duties incumbent on him by the provi- 
 sions of this title, and which oath shall also contain a true statement of the connec- 
 tion that exists between him and the auctioneer. 
 
 § 9. Goods damaged at sea and sold for the benefit of the owners or insurers 
 shall be sold in the city of New York under the direction of the wardens of the 
 port, and in other cities and counties of the state under the direction of persons 
 appointed to inspect damaged goods in the city or county where the sale is made. 
 
 § 10. One or more, not exceeding three, inspectors of damaged goods, when- 
 ever their appointment shall be necessary, shall be appointed in the cities of 
 Albany, Troy and Hudson by the mayor or recorder of those cities respectively, 
 and in every other county of the state by any judge of the courts to whom appli- 
 cation for that purpose shall be made. 
 
 § II. No person appointed to the office of an auctioneer shall execute the 
 duties of such ofFice until he shall have entered into a bond to the people of this 
 state, with two sufficient freeholders as his sureties, in the penalty of five thousand 
 dollars, conditioned for the faithful performance of the duties of his office, and for 
 
STATUTES. 441 
 
 the payment of the duties that are or shall be imposed by law, and that shall 
 accrue on sales made by him or under his direction or by virtue of his office. 
 
 § 12. Such bond, if executed by an auctioneer appointed in a city, shall be 
 taken and approved of by the mayor or recorder of such city; and if executed by 
 an auctioneer appointed for a county, by any judge of the county courts of such 
 county. 
 
 § 13. The officer taking the bond shall endorse upon it a certificate of his 
 approbation, and of the day on which it was taken, and shall deliver the bond, 
 thus endorsed, to the auctioneer by whom it was executed, who within ten days 
 thereafter shall deliver or cause the same to be delivered to the comptroller. 
 
 § 14. Every officer taking such bond shall without delay transmit a notice to 
 the comptroller, stating the name of the auctioneer and his sureties entering into 
 the bond, and the day on which the same was executed and approved. 
 
 § 15. Every auctioneer who shall sell any goods, wares, merchandise or effects 
 by public auction, without having given the security above required, shall forfeit 
 the sum of one hundred and twenty-five dollars for each article so exposed by him 
 to sale. 
 
 § 1 5. Every auctioneer who, during his term of office, shall accept an appoint- 
 ment as auctioneer from any other state, or who shall be concerned as principal 
 or partner in selling any goods, wares, merchandise or effects in any other state 
 by public auction, or who shall receive any reward, compensation or benefit for or 
 on account of any such sale, shall be deemed guilty of a misdemeanor, and on 
 conviction shall forfeit his appointment, and be incapable forever thereafter of 
 acting as an auctioneer within this state. 
 
 § 17. No auctioneer in any city of this state shall at the same time have more 
 than one house or store for the purpose of holding his auctions; and every such 
 auctioneer, before he shall enter on the duties of his office, shall designate, in a 
 writing signed by him, such house or store, and shall also name therein the part- 
 ner or partners, if any, engaged with him in business, and shall file such writing 
 with the clerk of the city for which he shall be appointed. 
 
 § 18. No such auctioneer shall expose to sale by public auction any goods or 
 articles liable to auction duties at any other place than that designated in the 
 writing so deposited by him, except goods sold in original packages as imported, 
 household furniture, and such bulky articles as have usually been sold in ware- 
 houses or in the public streets or on the wharves. 
 
 § 19. Every such auctioneer, who shall violate any provision of the two last sec- 
 tions, shall be deemed guilty of a misdemeanor, punishable by a fine not exceeding 
 two hundred and fifty dollars for each offence. 
 
 § 20. The common council of each city in the state may designate such place 
 or places within such city for the sale by auction of horses, carriages and house- 
 hold furniture as they shall deem expedient. 
 
 § 21. Every auctioneer in the city of New York shall, under his own proper 
 name, give previous notice in one or more of the public newspapers printed in the 
 said city of every auction sale that shall be lawfully made by him; and in case he 
 shall be connected with any person or firm, his name shall in all cases precede 
 separately and individually the name of such person or the title of the firm under 
 which he transacts business. 
 
 § 22. Every auctioneer, copartner or clerk of an auctioneer, and every other 
 person whomsoever in the city of New York, who shall advertise a sale by auc- 
 tion in any other manner than the one prescribed in the foregoing sections, or 
 shall be concerned in any sale by auction not advertised in the aforesaid manner, 
 shall on conviction thereof forfeit the sum of five hundred dollars for each 
 offense, and be also subject to imprisonment at the discretion of the court in 
 which he shall be tried; but such imprisonment shall not exceed six months. 
 
442 APPENDIX. 
 
 § 23. No auctioneer shall demand or receive a higher compensation for his 
 services than a commission of two and one-half per cent, on the amount of any 
 sales public or private made by him, unless by virtue of a previous agreement in 
 writing between him and the owner or consignee of the goods or effects sold. 
 
 § 24. Every auctioneer who shall violate the provisions of the last section, 
 shall forfeit the sura of two hundred and fifty dollars to every person from whom 
 he shall demand or receive an unlawful compensation or commission, and shall 
 also be liable to refund the moneys so illegally received. 
 
 § 25. No auctioneer, on the day and at the place where his public auction shall 
 be held, nor any person whatever on the same day and at the same place, shall 
 sell at private sale any goods or effects liable to auction duties; and every person 
 who shall violate this provision shall forfeit a sum equal to the price for which 
 such goods shall have been sold. 
 
 § 26. When goods shall be struck off at auction, and the bargain shall not be 
 immediately executed by the payment of the price, it shall be the duty of the 
 auctioneer to enter in a sale-book to be kept by him for that purpose a memo- 
 randum of the sale, specifying the nature, quantity and price of the goods, the 
 terms of the sale, and the names of the purchaser and of the person on whose 
 account the sale is made. 
 
 § 27. Every auctioneer who shall have entered into the bond acquired by law 
 shall make out in writing a quarterly account dated on the first days of April, 
 July, October and January, in the year for which he is appointed, and shall therein 
 state minutely and particularly 
 
 1 . The sums for which any goods or effects shall have been sold at every 
 auction held by him or in his behalf, from the time of his entering into 
 such bond, or the date of his last quarterly account; 
 
 2. The days on which sales were so made, and the amount of each day's 
 sale, designating the sales made by himself or in his presence, and those 
 made in his absence by a partner or clerk acting in his behalf, and speci- 
 fying the causes of such absence; 
 
 3. The amount of all private sales made by himself or any of his partners 
 on commission, and the days on which such sales were made; 
 
 4. The amount of the duties chargeable under the provisions of this title 
 on all the sales, public and private, mentioned in the account. 
 
 § 28. Every such account, within twenty days after the day on which it is 
 dated, shall be exhibited, if made out by an auctioneer appointed in a city, to the 
 mayor or recorder of such city, and if made out by an auctioneer appointed for a 
 county, to any judge of the county courts of such county. 
 
 § 29. Every auctioneer exhiljiting an account shall take the following oath 
 
 before the officer to whom the account shall be exhibited : " I do 
 
 solemnly and sincerely swear (or affirm) that the account now exhibited by me, 
 and to which I have subscribed my name, contains a just and true account of all 
 the goods, wares, merchandise and effects sold or struck off or bought in by me at 
 public sale or sold by me at private sale on commission, whether subject to duty 
 or not, or sold, struck off or bought in as aforesaid by others in my name, or 
 under my direction, or for my benefit, within the time mentioned in the within 
 account, and of the days on which the same were respectively sold; and that I 
 have attended personally such of the said public sales as are not stated in the said 
 account to have been made without my attendance; and that the causes therein 
 mentioned of my absence from such sales as I did not attend are truly stated; 
 that I have examined the entries of all the sales mentioned in said account in the 
 book kept by me for that purpose, and fully believe this account to be in all 
 
STATUTES. 443 
 
 respects correct; and further, that I have, during the time therein mentioned, 
 conformed in all things to the true intent and meaning of the laws regulating sales 
 by auctioneers, according to the best of my knowledge, information and belief." 
 Such oath shall be reduced to writing, be endorsed on the account, and be sub- 
 scribed by the auctioneer taking it. 
 
 § 30. Every partner of such auctioneer shall also make and subscribe an oath, 
 to be endorsed on the account, as shall also every clerk or other person whatever 
 in any way connected in business with such auctioneer, who shall have made any 
 sale contained in said account, that he believes the account so rendered to be just 
 and true in every particular. 
 
 § 31. Every partner or clerk who shall have made any sale on behalf of an 
 auctioneer shall in the account rendered by such auctioneer set his name or the 
 initials thereof opposite to each sale made by him mentioned in such account; 
 and shall make and subscribe an affidavit to be annexed to such account, stating 
 that the sales so noted are all the sales Uable to auction duties, public or private, 
 made by him within the time mentioned in the account, and that the account of 
 such sales so therein stated is just and true; that such sales were made by him in 
 the absence of such auctioneer, who was unable to attend from the causes specified 
 in his account; and that in all acts performed by him in behalf of such auctioneer 
 during the time aforesaid he had endeavored to conform to the true intent and 
 meaning of the laws regulating sales by auctioneers. 
 
 § 32. Every auctioneer, within ten days after he shall have exhibited his 
 account, shall pay for the use of the state the duties accrued on the sales mentioned 
 in the account, and immediately after such payment shall deliver or transmit such 
 account, with the affidavits endorsed thereon and annexed thereto, to the comp- 
 troller, to be filed in his office. 
 
 § 33. Every such payment, if made by an auctioneer appointed for any other 
 place than the city of New York, shall be made to the treasurer of the state, and 
 by every auctioneer in the city of New York shall be made to such bank in the 
 city of New York as shall be designated by the comptroller as entitled to the state 
 deposits according to law, and the receipt of the proper officer of the bank shall 
 be taken therefor. 
 
 § 34. The auctioneer taking such receipt shall immediately transmit the same 
 to the comptroller, who shall thereupon certify such payment to the treasurer, 
 and charge him with the amount thereof. 
 
 § 35. Every auctioneer who, within the period 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 any officer to whom 
 his accounts, had such sales been made by him, might have been exhibited, and 
 shall transmit a copy of such affidavit, certified by the officer taking it, to the 
 comptroller, within the same time that an account is required to be rendered. 
 
 § 36. Every auctioneer, partner or clerk of an auctioneer, and every person 
 whatever in any way connected in business vrith an auctioneer, who shall refuse 
 or neglect to perform any act or duty which in either of the last nine sections he 
 is required to perform, shall for each offence forfeit to the people of the state the 
 sum of seven hundred and fifty dollars. 
 
 § 37. It shall be the duty of the comptroller to certify and publish in the state 
 paper every such refusal or neglect of an auctioneer, and from the time of such 
 publication the delinquent auctioneer therein named shall be deemed to have 
 forfeited his appointment, and shall be incapable of doing any act by virtue 
 thereof. 
 
 § 38. All sales of goods by public auction in the city of New York by an auc- 
 tioneer shall be made in the daytime between sunrise and sunset, excepting 
 
/l-^/| APPENDIX. 
 
 1. Books or prints. 
 
 2. Goods sold in the original package as imported, according to a printed 
 catalogue, of which samples shall have been opened and exposed to 
 public inspection at least one day previous to the sale. 
 
 Every auctioneer who shall violate the provisions of this section shall be 
 deemed guilty of a misdemeanor, and on conviction shall forfeit his appointment. 
 
 § 39. Every person who shall be guilty of any fraud or deceit in the execution 
 of this title, or who shall by any fraudulent means seek to elude or defeat its ope- 
 ration, shall be deemed guilty of a misdemeanor, and shall forfeit treble damages 
 to the party injured. 
 
 § 40. All forfeitures imposed by this title, and not otherwise specially appro- 
 priated, shall be prosecuted for by the district attorney of the county in which the 
 offence shall be committed in the name of the people ; and it shall be the duty of 
 the comptroller to give immediate notice to the proper district attorney of every 
 such forfeiture believed to have been incurred. The moneys recovered, after 
 deducting a proper compensation to the district attorney, to be settled by the 
 comptroller, shall be paid to the treasurer of the county in which the offence shall 
 be committed, for the use of the poor of such county. 
 
 § 41. The comptroller is authorized, whenever he shall deem it necessary, to 
 give notice to the attorney-general of any forfeiture incurred by an auctioneer or 
 any other person under this title ; and the attorney-general, when thus notified, 
 shall have power to prosecute for such forfeiture in the manner provided by sec- 
 tion forty of this title, and after paying his costs the moneys recovered shall be 
 appropriated in the manner specified in said title. 
 
 Laws of 1838, Chap. 52. 
 An Act authorizing any citizen of the state of New York to become an auctioneer. 
 
 § I. Any citizen of the state of New York may become an auctioneer, and 
 may legally transact the business and perform the duties of an auctioneer in the 
 county in which he resides, on executing and depositing with the comptroller an 
 approved bond, in double the amount now required by law, with sureties for the 
 payment of the auction duties, in the manner prescribed by the eleventh, twelfth 
 and thirteenth sections of title first of chapter seventeenth of the part first of the 
 Revised Statutes. 
 
 § 2. An express clause shall be inserted in the bond subjecting the same to 
 forfeiture in case the obligor shall not render a true and accurate account quar- 
 terly of all goods sold or struck off by him; and such quarterly account shall be 
 rendered as required in the twenty-seventh section of title first of chapter seven- 
 teenth of part first of the Revised Statutes; and such account shall contain, in 
 addition to the statements required in said sections, a distinct statement of all 
 goods struck off but not actually sold, and he shall pay the auction duties on all 
 goods so struck off. 
 
 § 3. Whenever an auctioneer shall be found guilty before any police or 
 mayor's court, or court of criminal jurisdiction in this state, of fraudulent prac- 
 tices, he shall be forever thereafter disqualified from exercising the rights or pur- 
 suing the business of an auctioneer, and shall also be deemed guilty of a misde- 
 meanor, punishable by fine or imprisonment or either, in the discretion of the 
 court before whom such conviction shall be had; the amount of which fine shall 
 not exceed the sum of five hundred dollars, and the term of which imprisonment 
 shall not exceed one year; and any person who shall at any time after such con- 
 viction transact the business of an auctioneer, and any person who shall at any 
 
STATUTES. 445 
 
 time transact the business of an auctioneer without first having complied with the 
 provisions of this act, shall for each offence be deemed guilty of a misdemeanor, 
 punishable in like manner as is hereinbefore specified. 
 
 § 4. So much of any act heretofore passed as is inconsistent with this act is 
 hereby repealed. 
 
 Laws of 1846, Chap. 62. 
 
 An Act in relation to goods sold at public auction, and to the bonds of auctioneers. 
 
 § I. All goods, wares and merchandise, and every other species of personal 
 property which shall at any time be exposed to sale by public auction within this 
 state, with the exceptions mentioned in the second section of this act, and in the 
 fifth section of title one chapter seventeen part one of the Revised Statutes, shall 
 be subject, each and every time they are struck off, to duties at the following 
 rates, namely : 
 
 1 . All wines and ardent spirits, foreign or domestic, at the rate of one dollar 
 on every hundred dollars; 
 
 2. All goods, wares, merchandise and effects imported from beyond the 
 Cape of Good Hope, at the rate of fifty cents on every one hundred 
 dollars. 
 
 3. All other goods, wares, merchandise and effects which are the production 
 of any foreign country, at the rate of seventy-five cents on every one hun- 
 dred dollars. 
 
 4. The duties shall be calculated on the sums for which the goods so 
 exposed to sale shall be respectively struck off, and shall in all cases be 
 paid by the person making the sale. 
 
 § 2. No auction duties shall be payable upon the following goods and articles : 
 
 1 . Ships and vessels. 
 
 2. Utensils of husbandry, horses, neat cattle, hogs and sheep. 
 
 3. Articles of the growth, produce or manufacture of the United States, 
 except distilled spirits. 
 
 [The editor of the seventh edition of the Revised Statutes subjoins the follow- 
 ing note to these two sections : " The editor has inserted here sections i and 2 
 of the Act of 1846, as originally enacted, and . : . he has inserted §§ i and 4 of 
 the foregoing title of the R. S. as they were originally enacted. It will be seen 
 that the two former sections are evidently intended as substitutes for the latter, 
 and accordingly the latter was repealed by § 10 of the Act of 1846. But by L. 
 1866, Chap. 547, § I, it was provided that ' § i of chapter 62 of the laws of 1846 13 
 hereby amended so as to read as follows ' : the text of a new section following 
 immediately after. By L. 1868, Chap. 106, § i, it is provided that ' chapter 547 
 of the laws of 1866, entitled, &c., is hereby repealed.' No substitute for the 
 repealed section being given within the ruling in People v. Montgomery, 67 N.Y. 
 109, there is a grave doubt whether § I of the R. S. and § i of the Act of 1846 
 are not both repealed, thus rendering § 4 of the R. S. and § 2 of the Act of 1846 
 nugatory. If this is the correct conclusion, it would seem that all the auction 
 duties have been repealed since i858. But it is not for the editor to attempt to 
 solve so grave a question. See as to the constitutionality of some of these laws. 
 People V. Waring, 3 Keyes, 74."] 
 
 § 3. The account required by law from every auctioneer shall hereafter be 
 rendered semi-annually, on the first Mondays of July and January in each year. 
 
 § 4. The bond required by law from every auctioneer shall be renewed on or 
 before the first Monday of January in each and every year. 
 
44^ APPENDIX. 
 
 § 5. Every auctioneer in the city of New York shall, within ten days after the 
 bond required by law shall have been executed, and the certificate required by 
 law endorsed thereon, file a copy thereof, and also a copy of said certificate, certi- 
 fied by the officer taking the bond, with the clerk of the city and county of New 
 York. 
 
 § 6. The clerk of the city and county of New York shall keep a book or books, 
 with an index alphabetically arranged, in which he shall cause to be recorded 
 every bond so filed, for which he shall be entitled to a fee of fifty cents for every 
 bond so filed, to be paid by the party executing such bond. 
 
 § 7. Every auctioneer neglecting to file such certified copy within the time 
 required by law shall forfeit for every such neglect the sum of one hundred dol- 
 lars, such penalty to be sued for and recovered by the district attorney, and when 
 recovered to be paid into the treasury of the state. 
 
 § 8. Any person who shall act as auctioneer in selling any goods liable to auc- 
 tion duties without filing the bonds required by law, or who shall neglect to make 
 or render the accounts or to pay over the duties required by law, shall be deemed 
 guilty of a misdemeanor, and punished by imprisonment not exceeding one year, 
 or by fine not exceeding one thousand dollars, or by both such fine and imprison- 
 ment. 
 
 § 9. [Repealed by L. 1857, Chap. 405.] 
 
 § 10. Sections first and fourth of title first of chapter seventeen, part first of 
 the Revised Statutes, and all acts or parts of acts inconsistent with the provisions 
 of this act, are hereby repealed. 
 
 Laws of 1849, Chap. 399. 
 
 An Act to prevent fraud in the returns made to the co7nptroller of sales at 
 
 auction. 
 
 § I. The comptroller is hereby authorized, and it is made his duty, to cause an 
 examination to be made as often as once in each year of the books and accounts 
 of auction sales kept by the auctioneers who shall have given bonds for the pay- 
 ment of duties on goods sold at public auction; and in case it shall appear from 
 such examination that any auctioneer has made a false return of the amount of 
 goods sold by him subject to duty, the comptroller shall cause an action to be 
 brought in the name of the people of this state against the auctioneer making such 
 false return and his sureties, for the recovery of such sum as shall appear from the 
 examination herein provided for to be actually due for duties on the sales made 
 by such auctioneer. 
 
 § 2. The comptroller is hereby authorized to employ such agent or agents as 
 he may deem necessary to carry this act into effect, and to pay to said agent or 
 agents such compensation as may be reasonable. The agent or agents so 
 employed shall have full power to administer an oath to each auctioneer, and to 
 require such information as may be necessary to ascertain the true amount of 
 goods sold at auction by such auctioneer. Any such agent is hereby authorized 
 to take and approve the bond required by law to be given by any auctioneer, and 
 is required to transmit any bond taken and approved by him to the comptroller 
 within ten days thereafter, and to file a copy thereof in the office of such agent. 
 The fees of such agent for taking and approving such bond shall be five dollars; 
 for approval of the returns to be made of sales, three dollars; and for filing a copy 
 of such bond, fifty cents. 
 
STATUTES. 447 
 
 Laws of 1853, Chap. 138. 
 An Act to punish gross frauds and to suppress mock auctions. 
 
 § I. Whereas a failure of justice frequently arises from the subtle distinction 
 between larceny and fraud; and whereas certain evil disposed persons, especially 
 in the city of New York, have for several years past, by means of certain fradu- 
 lent and deceitful practices known as mock auctions, most fraudulently obtained 
 great sums of money from unwary persons, to their great impoverishment : 
 
 § 2. Each and every person who shall, through or by means of the afore- 
 recited deceitful and fraudulent practices, or by means of any other gross fraud or 
 cheat at common law, designedly and with intent to defraud, obtain from any 
 other person, any money, or any goods, wares, merchandise or other property, or 
 shall obtain with such intent the signature of any person to any written instru- 
 ment, the false making whereof would be punishable as forgery, shall on convic- 
 tion be punished by imprisonment in the state prison for not more than three 
 years, or in the county jail not exceeding one year, or by fine not exceeding one 
 thousand dollars, or by both such fine and imprisonment: provided always, that 
 if, upon the trial of any person indicted for such fraud, it shall be proved that he 
 obtained the property in question in any such manner as to amount in law to a 
 larceny, he shall not, by reason thereof, be entitled to an acquiftal; and no per- 
 son tried for such fraud shall be liable to be afterwards prosecuted for larceny 
 upon the same facts. 
 
 § 3. All auctioneers doing business in the city and county of New York shall 
 hereafter be required, between the first and fifteenth of June in each and every 
 year, to obtain from the mayor of said city a license to engage in and carry on 
 such business and occupation, upon filing a bond with two good securities, in the 
 penal sum of two thousand dollars. 
 
 § 4. The mayor, on the complaint of any person having been defrauded by any 
 auctioneer, or the clerk, agent or assignee of such auctioneer doing business in 
 the city and county of New York, is hereby authorized and directed to take testi- 
 mony under oath relating thereto; and if the said charge shall in his opinion be 
 sustained, then he shall revoke the license granted under the provisions of this 
 act, and commit the parties for trial according to law, and direct the said bonds 
 to be forfeited as provided for in the preceding section. 
 
 § 5. All acts and parts of acts conflicting with the provisions of this act are 
 hereby repealed. 
 
 Laws of 1864, Chap. 131. 
 
 An Act to relieve from auction duties all sales made for the relief of sick and 
 wounded soldiers within this state. 
 
 § I. No goods, wares or merchandise, or species of personal property, exposed 
 to sale by public auction within this state at any fair or exhibition held or con- 
 ducted for the benefit of the United States sanitary commission, nor any auction 
 sale made at any fair or other exhibition, the entire proceeds of which are devoted 
 to any association for the relief of sick or wounded soldiers or the families of such 
 soldiers, shall be subject to any auction duty under any law of this state. 
 
448 APPENDIX. 
 
 Laws of 1878, Chap. 287. 
 
 An Act in relation to auctioneers. 
 
 § I. It shall not be necessary for any auctioneer of this state, whose auction 
 business is confined to the sale of farm property, and other personal property sold 
 upon farms and property which may be owned by any person residing in any of 
 the towns and villages in this state, and which has not been purchased for the 
 purpose of a sale at auction upon which duties are required to be paid to the 
 comptroller under the laws of this state, to execute the bond now required by law 
 to be executed by auctioneers. Nor shall it be necessary for any such auctioneer 
 to render the semi-annual account now required by law to be rendered to the 
 comptroller by auctioneers engaged in the sale of goods, wares, merchandise and 
 effects, the growth or produce of any foreign country. 
 
 Revised Statutes, Part II., Chap. 7, Title 2. 
 
 § 4. Whenever goods shall be sold at public 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] . 
 
 Part IV., Chap, i, Title 6. 
 
 § 34- Every auctioneer who shall wilfully neglect to make any report required 
 to be made to the comptroller of this state by the thirteenth article of the second 
 title of the seventeenth chapter of the first part of the Revised Statutes, in addi- 
 tion to any pecuniary penalty imposed by law for such neglect, shall upon convic- 
 tion be adjudged guilty of a misdemeanor, and in addition to any other punish- 
 ment prescribed by law, shall be subject to a fine not exceeding one thousand 
 dollars. 
 
 Pen'al Code, 1882. 
 
 § 443- A person who buys or sells or pretends to buy or sell any goods, wares 
 or merchandise, or any species of property, except ships, vessels, or real or lease- 
 hold estate, exposed for sale by auction, if an actual sale, purchase, and change of 
 ownership therein does not thereupon take place, is guilty of a misdemeanor, 
 punishable by imprisonment for thirty days, or by fine not exceeding one hundred 
 dollars, or both. 
 
 § 574. A person who obtains money or property from another, or obtains the 
 signature of another to any writing the false making of which would be forgery 
 by means of any false or fraudulent sale of property or pretended property at 
 auction, or by any of the practices knowm as mock auctions, is punishable by 
 imprisonment in a state prison not exceeding three years, or in the county jail 
 not exceeding one year, or by a fine not exceeding one thousand dollars or by 
 both such fine and imprisonment, and in addition thereto he forfeits any license 
 he may hold to act as an auctioneer, and is forever disqualified from receiving a 
 license to act as auctioneer within this state. 
 
STATUTES. 449 
 
 NORTH CAROLINA. — Battle's Revisal, 1873, Chap. 8. — Auction and 
 
 Auctioneers. 
 
 § I . Any citizen of this state desiring to exercise the business of an auctioneer 
 shall apply to the county commissioners, or the commissioners of incorporated 
 towns in the county in which he proposes to carry on such business, and upon his 
 giving bond in the sum of five thousand dollars payable to the state of North 
 Carolina, to be approved by the commissioners, conditioned that he will perform 
 faithfully all the duties required of auctioneers, the sheriff shall issue to him a 
 license to act as an auctioneer in said county for twelve months from the date of 
 the license : Provided, that the commissioners of the county of Washington may 
 annually, after the first day of March, appoint for the term of one year not more 
 than three persons to exercise the trade and business of auctioneer therein, each 
 of whom shall execute bond in the sum of five hundred dollars payable to the 
 state of North Carolina, with good and sufficient security, to be judged by the 
 commissioners, conditioned that he will faithfully perform all the duties required 
 of auctioneers. 
 
 § 2. It shall be the duty of such auctioneers, while they shall continue in their 
 employment, on the first days respectively of October and April, to render to the 
 clerks of the Superior Courts of their respective counties a true and particular 
 account in writing of all the moneys made liable to duty by law for which any 
 goods, wares or merchandise may have been sold at auction, and also at private 
 sale where the price of such goods, wares and merchandise sold at private sale 
 was fixed or agreed upon or governed by any previous sale at auction, of any 
 goods, wares and merchandise of the same kind; which account shall contain a 
 statement of the gross amount of sales by them made for each particular person 
 or company at one time, the date of each sale, the names of the owners of the 
 goods, wares and merchandise sold, and the amount of the tax due thereon, which 
 tax they shall pay as directed by law; and which statement shall be subscribed by 
 them, and sworn to before the clerk of the said court, who is hereby authorized 
 to administer the oath. And it shall be their further duty to account with and 
 pay to the person entitled thereto the moneys received on the sales by them 
 made. 
 
 § 3. No person shall exercise the trade or business of an auctioneer, by selling 
 any goods, wares or merchandise by auction, or by any other mode of sale whereby 
 the best or highest bidder is deemed to be the purchaser, unless such person shall 
 be appointed an auctioneer, pursuant to the provisions of this chapter, on pain of 
 forfeiture to the state for every such sale the sum of two hundred dollars, which 
 shall be prosecuted to recovery by the solicitor of the district. 
 
 § 4. Nothing in this chapter contained shall extend to any sale by auction of 
 goods, wares and merchandise made pursuant to, and in execution of, any order, 
 decree or judgment of the courts of the United States or of this state; or made in 
 consequence of any assignment of property and estate for the benefit of creditors; 
 or made by executors, administrators or guardians; or made pursuant to any law 
 touching the collection of any tax or duty, or sale of any wrecked goods; or to 
 any article the product of the agriculture of this state, in its natural or unmanufac- 
 tured state; or to any species of stock or domestic animals; or to any articles of 
 household furniture or farming utensils which have been in use ; but shall extend 
 only to such articles of goods, wares and merchandise as are the ordinary subjects 
 of traffic and sale by merchants and traders. 
 
 § 5. The auctioneers shall be entitled to such compensation as may be agreed 
 upon, not exceeding two and a half per cent, upon the amount of sales; and the 
 
4SO APPENDIX. 
 
 auctioneers of incorporated towns shall retain and pay one per cent, of the gross 
 amount of sales to the commissioners of their respective towns. 
 
 Chapter 102. 
 
 § 75. Every auctioneer, on all goods, wares or merchandise sold by himself or 
 agent, whether by ascending or descending bids, or at public outcry, shall pay 
 one per centum on the gross amount of his sales, subject to all the regulations and 
 exemptions set forth in the chapter of this revisal entitled " Auction and Auc- 
 tioneers"; but this shall not apply to tobacco warehousemen, who shall pay a 
 license-tax of thirty-five dollars a year, nor to persons who keep a warehouse 
 exclusively for the sale of cotton, where all who wish may exhibit cotton for sale; 
 but the person keeping such warehouse shall pay a license-tax of fifty dollars. 
 
 Laws of 1881, Chap. 116. 
 
 § 27. Every auctioneer, upon all goods, wares or merchandise sold by himself 
 or agent, whether by ascending or descending bids, or at public outcry, shall pay 
 one-fourth of one per centum on the gross amount of his sales, subject to all the 
 exemptions and regulations set forth in the eighth chapter of Battle's Revisal, 
 entitled " Auctions and Auctioneers," but tobacco warehousemen shall pay an 
 annual license-tax of fifteen dollars and one per centum on the gross amount of 
 their commissions on all sales of tobacco in excess of three hundred thousand 
 pounds; and persons who keep a warehouse exclusively for the sale of cotton, 
 where cotton is exhibited for sale, shall pay a license-tax of fifty dollars. 
 
 OHIO. — Revised Statutes, 1882. 
 
 § 2669. The council of any city or village may license all exhibitors of shows 
 and performances of any kind not prohibited by law, hawkers, peddlers, auction- 
 eers of horses and other animals in the highways or public grounds of the corpora- 
 tion, venders of gunpowder and other explosives, taverns and houses of public 
 entertainment, and hucksters in the public streets or markets, and in granting such 
 license may exact and receive such sum of money as it may deem expedient; but 
 nothing in this section shall be construed to authorize any municipal corporation 
 to require of the manufacturer a license to vend or sell any article or product 
 manufactured by him within the state of Ohio. 
 
 § 4222. No person shall exercise the trade or occupation of auctioneer, or sell 
 by public auction, vendue or outcry, either directly or indirectly, any property or 
 effects whatsoever, except utensils of husbandry, household furniture, real estate, 
 produce, horses, sheep, hogs and neat cattle, without license as herein provided; 
 and whoever exercises the trade or occupation of an auctioneer, or sells or attempts 
 to sell by public auction, vendue or outcry in this state any property or effects 
 whatever, except as aforesaid, without such license, shall forfeit and pay not more 
 than five hundred nor less than one hundred dollars, to be recovered in the name 
 of the state. 
 
 § 4--3- The prohibition aforesaid shall not extend to any officer or person exe- 
 cuting any process or order of any court, seUing any property or effects directed by 
 law, or by any process or order, to be sold by public vendue, auction or outcry. 
 
 § 4224. The court of common pleas or any judge thereof in vacation may 
 appoint and license such suitable persons residing in the county as may be proper 
 to exercise the trade or occupation of auctioneer, and make sales by auction 
 according to law, for the term of one year from the date of such appointment; 
 
STATUTES. 45 1 
 
 and the person so appointed may exercise such trade or occupation in any county 
 of the state during the term. 
 
 § 4225. The court or any judge making the appointment shall determine the 
 amount to be paid by each auctioneer licensed, which amount shall in no case 
 exceed the sum of five hundred dollars; and every auctioneer appointed under 
 the provisions of this chapter, 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 and accepted by the court granting the hcense, 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 pay- 
 ment to the clerk of the court making the appointment, and upon such certificate 
 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. 
 
 § 4226. All property and effects exposed to sale by public auction, with the 
 exceptions mentioned in sections 4222 and 4223, 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. 
 
 § 4227. All property and effects sold by auction shall be sold 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. 
 
 § 4228. All property and effects sold by an auctioneer on commission, whether 
 bv auction or at private sale, shall be subject to the duties enumerated in section 
 4226, and if a 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 efi'ects were sold. 
 
 § 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 mer- 
 chant 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 4220. 
 
452 APPENDIX. 
 
 § 4230. An auctioneer who farms out his office to another, or who derives 
 profit or advantage from any sales by auction that are not made by himself per- 
 sonally, shall forfeit and pay to the state a sum not exceeding one thousand dol- 
 lars nor less than one hundred dollars, with costs of prosecution, and shall more- 
 over forfeit his license ; but in case of sickness or necessary absence of any auc- 
 tioneer, any sale appointed by him may be made by his known clerk. 
 
 § 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 sum 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. 
 
 § 4232. Every such account shall be verified by a declaration of the auctioneer 
 in the words now 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 as far as I know or 
 believe, of all goods or 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 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. 
 
 § 4233. An auctioneer who neglects or refuses to exhibit his quarterly account, 
 and deliver the same properly verified as aforesaid, or neglects or refuses to make 
 payment of the duties required by this 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. 
 
 § 4234. All moneys raised by way of tax penalty or otherwise, under the pro- 
 visions of this chapter, shall be paid into the treasury of the proper county, for 
 which dupUcate 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 
 
STATUTES. 453 
 
 each and every county treasurer with whom any money may be deposited in con- 
 formity with the provisions of this statute, 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. 
 
 § 4235. The sheriff or other officer who collects and receives any fine or pen- 
 alty imposed under the provisions of this chapter shall pay the same to the treas- 
 urer of the proper county, within ten days after receiving the same. 
 
 § 4236. If any county treasurer, sheriff or other otncer neglect to perform the 
 duties required by this chapter, he shall forfeit and pay 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. 
 
 § 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. 
 
 § 4238. All fines, penalties and forfeitures, imposed by and incurred under 
 the provisions of this chapter, may be recovered before the court of common 
 pleas of the county in which the offense has been committed, by action in the 
 name of the state. 
 
 § 7012. A duly appointed and licensed auctioneer who neglects or refuses to 
 exhibit any quarterly account, or to deliver the same verified as required by law, or 
 neglects or refuses to make payment of the proper duties to the treasurer of the 
 proper county, within the time required by law, shall be fined not more than one 
 thousand dollars, forfeit his license, and be liable for such duties in an action in 
 the name of the state. 
 
 § 7013. A duly appointed and licensed auctioneer who farms out his office to 
 another, or derives profit or advantage from sales by auction made by another, 
 except his clerk in case of the sickness or necessary absence of the auctioneer, 
 shall be fined one thousand dollars and forfeit his license. 
 
 OREGON. 
 
 In this state, the licenses of auctioneers are regulated by the different munici- 
 pal corporations within their respective limits. 
 
 PENNSYLVANIA. — Brightly's Purdon's Digest, 1872. Title Auctions, 
 Vol. I., Page 102. 
 
 I. — Auctioneers in Philadelphia and Allegheny. 
 
 § 1. Upon any citizen of the United States and of the state of Pennsylvania, 
 paying into the state treasury the sum of two thousand dollars, and giving bonds 
 in the sum of five thousand dollars with two or more sufficient securities to be 
 approved of by the judges of the court of common pleas of the city of Philadel- 
 phia, the governor thereupon shall grant him a commission of the first class, for 
 one year, to make sales by auction or by public outcry, or on commission, of real 
 estate, stocks, vessels, loans, and of any and every description of merchandise and 
 personal property whatever, and to any amount, in the city of Philadelphia. 
 
 § 2. Upon any citizen as aforesaid paying into the state treasury the sum of 
 fifteen hundred dollars, and giving bonds with seciirities as aforesaid, the governor 
 
454 APPENDIX. 
 
 shall grant him a commission of the second class for one year, to make sales in 
 said city by auction or by public outcry, or on commission, of real estate, stocks, 
 loans, vessels, and of any and every description of merchandise and personal 
 property whatsoever ; providing the sales so made of merchandise and personal 
 property in any one year does not exceed the sum of seven hundred and fifty 
 thousand dollars. 
 
 § 3. Upon any citizen as aforesaid paying into the state treasury the sum of 
 one thousand dollars, and giving bonds with securities in the sum of three thou- 
 sand dollars, the governor shall grant him a commission of the third class for one 
 year, to make sales in said city by auction or by public outcry, or on commission 
 of real estate, stocks, loans, vessels, and of any and every description of merchan- 
 dise and personal property whatsoever; providing the sales so made of merchan- 
 dise and personal property in any one year does not exceed the sum of five hun- 
 dred thousand dollars. 
 
 § 4. Upon any citizen as aforesaid paying into the state treasury the sum of 
 five hundred dollars and giving bonds as aforesaid, the governor shall grant him 
 a commission of the fourth class for one year, to make sale by auction or by public 
 outcry, or on commission, of real estate, stocks, loans, vessels, and of any and 
 every description of merchandise and personal property whatever ; providing the 
 sales so made of merchandise and personal property in any one year does not 
 exceed the sum of two hundred and fifty thousand dollars. 
 
 § 5. Any citizen as aforesaid residing and doing business not less than five 
 miles from Independence Hall in the city of Philadelphia, paying into the state 
 treasury the sum of one hundred dollars, and giving bonds with securities in the 
 sum of two thousand dollars, the governor thereupon shall grant him a commis- 
 sion of the fifth class for one year, to make sales in said city by auction or by 
 public outcry, or on commission, of real estate, stocks, loans, vessels, and of any 
 and every description of merchandise and personal property whatsoever ; pro- 
 viding the sales so made of merchandise and personal property in any one year 
 does not exceed the sum of fifty thousand dollars : Provided, that in case of the 
 sale of any auctioneer taking out a commission under the second, third, fourth or 
 fifth class, shall exceed the maximum amount authorized by this act, he shall pay 
 into the state treasury, at the close of each year in which his sales shall so exceed 
 said maximum, the sum of one-half of one per cent, on the amount of such surplus 
 sales. 
 
 § 6. Said auctioneers shall pay into the treasury of the Commonwealth [a tax 
 or duty of one-fourth of one per centum on all sales of loans or stocks (a)], and 
 shall also pay into the treasury aforesaid a tax or duty as required by existing 
 laws on all other sales to be made as aforesaid, except on groceries, goods, wares 
 and merchandise of American growth or manufacture, real estate, shipping, or 
 live stock (Ji) ; and it shall be the duty of the auctioneer having charge of such sales 
 to collect and pay over to the state treasurer the said duty or tax, and give a true 
 and correct account of the same, quarterly, under oath or affirmation, in the form 
 now required by law. 
 
 § 7. That any citizen obtaining an auctioneer's commission of either class in 
 the city of Philadelphia or county of Allegheny at the time of taking out said 
 commission be compelled to make oath, that he will conform in all things to the 
 true intent and meaning of the several auction laws of this commonwealth, accord- 
 
 (a) This clause repealed by act of earthenware, hides, marble, wool and dye- 
 April 29, 1867 ; P.L. 1313. woods, is three-fourths of one per cent. ; 
 
 (b) By act of 20 May, 1853, the duty P.L. 683. 
 on auction sales of foreign drugs, glass, 
 
STATUTES. 455 
 
 ing to the best of his knowledge, information and belief; and shall also make 
 return, at least once each and every year, to the state treasurer of the total amount 
 of sales made by him at auction or on commission of merchandise and personal 
 property, the same to be a true and correct account, under oath or affirmation, 
 before an alderman or justice of the peace of the said city or county. 
 
 § 8. It shall not be lawful for any person or persons to make sales by auction 
 or by public outcry, in the city of Philadelphia or county of Allegheny, of real 
 estate, stocks, loans, vessels, merchandise and personal property of any descrip- 
 tion, except it be by a duly commissioned auctioneer of the said city or county : 
 Provided, that this act shall not be so construed as to interfere with any sales 
 authorized by the courts of said city or county, or in consequence of any legal 
 proceeding whatever, or of personal property sold in consequence of the owner 
 declining business or housekeeping. 
 
 § 9. Any person or persons found guilty of selling at auction or public outcry 
 in the city of Philadelphia or county of Allegheny, except a duly commissioned 
 auctioneer, shall be deemed guilty of a misdemeanor, and upon the conviction 
 thereof in the court of quarter sessions of the peace of the said city or county, be 
 sentenced to pay a fine of five hundred dollars, one-half to go to the informer, and 
 the other half to go to the public school fund of the city or district wherein the 
 offense was committed ; and upon the second offense he shall be sentenced to 
 pay a like fine and undergo an imprisonment in the county jail for thirty days, the 
 fine to be applied as in the first offense. 
 
 § 10. No auctioneer in the city of Philadelphia or county of Allegheny shall, at 
 the same time, have more than one house or store for the purpose of holding an 
 , auction; and every auctioneer in said city or county shall designate in writing 
 such house or store, and also his partner or partners, if any, engaged with him in 
 his said business; which said writings shall be deposited by such auctioneer with 
 the recorder of deeds of the proper city or county; and no auctioneer shall expose 
 to sale, by public auction or vendue, in said city or county, any goods, wares or 
 merchandise, or effects whatsoever, at any other place than in the said houses or 
 stores respectively to be designated as aforesaid, except goods, wares or merchan- 
 dise which shall be sold in the original package in which they are imported, 
 domestic dry-goods in the packages as they come from the manufacturer, stock 
 of dry-goods, groceries, cabinet furniture, crockery and glassware at the houses or 
 stores of the owners, the removal of which to the auction-stores would be attended 
 with expense and risk to the owners, goods of persons deceased, or of persons 
 who are bona fide declining business, household furniture, musical instruments, 
 live stock, carriages, and such like articles as have been usually sold at auction in 
 warehouses or in public streets or wharves, and sales authorized by the courts of 
 said city or county, or in consequence of any legal proceeding whatever. And if 
 any auctioneer in said city or county shall enter upon the execution of his office, 
 or shall permit any person to act in his behalf, without designating his said house 
 or store, or his partner or partners, if any, in the manner and form herein pre- 
 scribed, or shall hold any auction at any other place than the place so designated, 
 except for the sale of the articles hereinbefore excepted, he shall be deemed guilty 
 of a misdemeanor, and on conviction shall be fined in a sum not exceeding three 
 hundred dollars ; and it shall be the duty of the court before whom each convic- 
 tion is had to transmit forthwith a report thereof to the governor of the common- 
 wealth who is hereby authorized, in his discretion, to inhibit the person so con- 
 victed from acting as an auctioneer so long as such inhibition shall continue. 
 
 § 1 1. In case the attorney-general shall have reason to believe that any person 
 acting under a commission as auctioneer aforesaid, has failed to make a just and 
 full return of the amount of his sales as required by the act, it shall be the duty of 
 
4S6 APPENDIX. 
 
 the said attorney-general, either in person or by deputy duly authorized, to call 
 at the regular place of business of said auctioneer, and make an examination of 
 his books and papers, for the purpose of ascertaining the true amount of said 
 sales ; and with this view said officer or his deputy shall have power to administer 
 oaths and examine witnesses ; and it shall be his duty, immediately upon the 
 completion of such examination, to report to the auditor-general the amount of 
 sales thus ascertained to be made by said auctioneer, during each quarter, subject 
 to the payment of the state tax or duty, specifying the different classes of such 
 sales ; for which service the said attorney-general or his deputy shall be author- 
 ized to demand and receive from said auctioneer a fee of ten dollars, if in the city 
 of Philadelphia, and five dollars if elsewhere. In each case, and in case any auc- 
 tioneer shall refuse to permit such examination, it shall be the duty of said officer 
 to report the fact to the governor, who shall thereupon revoke and annul the 
 commission of such offending auctioneer. 
 
 § 13. Auctioneers in the county uf Allegheny shall be commissioned in the 
 same manner and on the same terms as is provided in this act in relation to auc- 
 tioneers in the city of Philadelphia, and shall be subject to the same regulations : 
 Provided, that those doing business in the city of Allegheny shall pay but one-half 
 the rate for commissions established for those doing business in Philadelphia, 
 and that those doing business in said county, and not in any city, shall pay one- 
 fourth the rates aforesaid; and provided further, that the state tax or duty upon 
 sales of loans or stocks within said county shall be one-eighth of one per centum, 
 and on all other sales, the amounts specified in this act. 
 
 § 14. If any auctioneer or auctioneers appointed under this act, or any person 
 or persons by his or their directions, shall at any time hereafter purchase on 
 account or for the use of the said auctioneers or any of them, at his or their 
 respective auctions, and the same be proved on the oath of one or more credible 
 witness or witnesses, before the justices of the quarter sessions in the city or 
 county of Philadelphia, such auctioneer shall forfeit and pay the sum of five hun- 
 dred pounds, one-half for the use of the state, and the other for the use of the 
 person who informs and proves the buying aforesaid, to be recovered in any court 
 of record in the state, and shall moreover be rendered incapable thereafter to 
 serve in any post of honor or profit in this state. 
 
 § 15. For each and every succeeding year, during which the holder of any 
 commission or license granted as aforesaid shall continue to use and exercise the 
 business of an auctioneer, he shall pay or cause to be paid in advance to the state 
 treasurer a like sum to that which he paid on obtaining such commission : and if 
 any person shall die before the expiration of the time for which he shall have 
 been commissioned, the benefits of the unexpired time of his commission shall be 
 continued to his legal representatives on application to the governor for that 
 purpose. 
 
 § 16. At the end of every three years, every person holding the commission of 
 an auctioneer shall renew his bond and sureties, and it shall be in the power, and 
 it shall be the duty of the governor at all times, to judge of the validity of the 
 sureties offered or given, and to accept or reject the same ; and whenever in his 
 judgment it shall become requisite for the security of the state that new sureties 
 should be substituted for or added to those given by any auctioiieer, and he shall 
 fail, on one month's notice, to give such other or further security as shall be 
 deemed sufficient, such auctioneer shall cease from all further use or exercise of 
 his business as an auctioneer, under such penalty as is provided by this act against 
 persons unlawfully exercising or using the said business. 
 
 § 17. In case any holder of a commission under this act shall neglect or 
 refuse to pay the sum or sums of money at the time and in the manner directed in 
 
STATUTES. 457 
 
 this act, or shall neglect or refuse to render to the state treasurer a quarterly 
 account of the effects and property subject to duty sold by him, and to pay to said 
 treasurer the amount of duties payable on such sale or sales, according to the 
 provisions of the several acts of assembly in such case made and provided, the 
 said holder of a commission as aforesaid shall immediately cease to use and exer- 
 cise the business of an auctioneer, under the penalties imposed upon persons 
 unlawfully using or exercising the said business. 
 
 § iS. It shall not be lawful for any auctioneer to associate with him in any 
 ■manner whatever a commission merchant who shall derive profit or advantage 
 from the sale of any goods at auction, or farm out the office to another, nor derive 
 profit or advantage from any sales by auction that are not personally superin- 
 tended by himself or his known cleric ; nor shall any auctioneer hold sales at the 
 store of any other person following the business of receiving furniture or goods 
 for the purpose of selling them by auction, nor at any place but his known sale- 
 room, except it be furniture or goods at the dwelling-house or store of the owner, 
 cargoes on board vessels, or landed on the wharves, or stored in the warehouses 
 of the owners of such goods, under [penalty of five hundred dollars for the first 
 offense, and one thousand dollars for the second offense]. 
 
 § 19. It shin be the duty of each and every auctioneer in the cities of Phila- 
 delphia and Pittsburgh to keep a book or register, in which shall be entered all 
 goods sold by him, and they shall pay the same percentage on all goods sold on 
 commission, that they are bound by existing laws to pay on goods sold by auction. 
 
 § 20. Each and every auctioneer of the cities of Philadelphia and Pittsburgh 
 shall within twenty days after the first of September, December, March and June 
 of the year for which he shall have been commissioned, render to the auditor- 
 general a true and particular account in writing of the moneys or sums for which 
 any goods, wares, merchandise or effects, subject to duty by our auction laws, 
 shall have been sold, either by auction or on commission, from the date of their 
 commission as an auctioneer, or the time the last account was rendered by him in 
 conformity to this act, of the amount of each day's sale, and the days when the 
 same were respectively sold, and shall attest the same before any alderman of 
 the proper city by the following oath or affirmation, as the case may be : " I, 
 
 , do swear or affirm that the account now exhibited by me, and to which I 
 
 have subscribed my name, contains a just and true account of all the dutiable 
 goods sold by me, at public sale or on commission, within the time mentioned in 
 said account, and of the days upon which the same were respectively sold ; that 
 I have examined the entries of all the sales mentioned in said account, in the 
 book kept by me for that purpose, and fully believe this account to be in all 
 respects correct ; and further, that I have, during the time therein mentioned, 
 conformed in all things to the true intent and meaning of the several auction laws 
 of this commonwealth, according to the best of my knowledge, information and 
 belief." And all and every the partner and partners of such auctioneer shall 
 also make and subscribe an oath, to be endorsed on the said account, that he or 
 they respectively believe the said account to be correct and true in every particular. 
 
 § 21. For the services to be performed by any deputy of the attorney-general, 
 in accordance with the provisions of the seventh section of the act to which this 
 is a supplement, the attorney-general is hereby authorized to allow to the said 
 deputy such sum as the auditor-general and attorney-general shall deem reason- 
 able, to be paid by the auctioneer whose books and papers may have been 
 examined. 
 
 § 22. Any auctioneer who, after his commission shall have expired, shall con- 
 tinue to do any of the business which he may have been authorized by said com- 
 mission to do, shall be liable to all the penalties mentioned in the tenth section of 
 
4S8 APPENDIX. 
 
 the act to which this is a supplement, and shall not be capable of holding a com- 
 mission as auctioneer for five years; and in case a commission shall have issued to 
 such auctioneer, it shall be the duty of the governor forthwith to revoke and 
 annul the same. 
 
 II. — Auctioneers in other parts of the state. 
 
 § 23. When any citizen of this state who shall have resided in the city of Lan- 
 caster for one year, and shall have paid into the treasury of the commonwealth 
 the sum of five hundred dollars, and filed in the office of the secretary of the com- 
 monwealth his bond in the penal sum of five thousand dollars, conditioned for the 
 faithful performance of the duties of an auctioneer and for the payment of all 
 duties and taxes which may become due to the state in consequence of his exer- 
 cising the trade or occupation of an auctioneer, with two or more sufficient sure- 
 ties to be approved of by the judges of the court of common pleas of the county 
 of Lancaster, or any two of them, which approval, together with the fact that the 
 applicant is a citizen and resident of the city of Lancaster as aforesaid, shall be 
 certified by the said judge on the bond, to be transmitted to the secretary of the 
 commonwealth, the governor shall thereupon grant to such citizen a commission 
 in legal form, authorizing him to make sales by auction according to law of all 
 and every kind of merchandise whatsoever, at any place within the limits of the 
 city of Lancaster, for the term of one year from the date of said commission. 
 
 § 24. Auctioneers appointed in pursuance of this act shall receive and pay to 
 the state treasurer, for the use of the commonwealth, the same rates of duties on 
 all articles struck off or sold by them that are required to be received and paid by 
 the auctioneers of the city of Philadelphia, and shall be subject to the same con- 
 ditions, rules, regulations and restrictions in all respects as are imposed by law on 
 the auctioneers of the said city of Philadelphia, except so far as the same may be 
 inconsistent with the provisions of this act. 
 
 § 25. Every auctioneer commissioned in pursuance of this act shall be at lib- 
 erty to contract with the person consigning to him property for sale [for] such 
 compensation as may be agreed upon by the contracting parties. 
 
 § 26. It shall not be lawful for any person except auctioneers commissioned in 
 pursuance of this act to sell or dispose of, by public outcry or vendue, within the 
 limits of the city of Lancaster, any description of property whatever (except as is 
 hereinafter excepted) : . . . Provided, that nothing herein contained shall be so 
 construed as to hinder or prevent the sale of horses, cattle, carriages, secondhand 
 household and kitchen furniture, farming utensils, and mechanics' tools, books or 
 real estate, or the remains of the stock of deceased merchants, or of those who 
 wish to close their business, or such sales as are authorized by the fourth section 
 of an act passed 'the twenty-third day of September, 1 780, entitled " an act to alter 
 and amend an act for the more effectual suppression of auctions and vendues, and 
 to prohibit male persons suitable for bearing arms to be hawkers or peddlers." 
 
 § 27. If any auctioneer residing in the city of Lancaster shall sell or expose to 
 sale by auction any goods, wares or merchandise by less quantity than the entire 
 piece, package, bale or box, as the same may have been imported or put up by 
 the manufacturer, except such as are enumerated in the first proviso of the fourth 
 section of the act to which this is a supplement, it shall be deemed a violation of 
 his privilege as an auctioneer. 
 
 § 28. No person or persons shall, under pretence of declining business, dispose 
 of his, her or their stock of goods or merchandise by public auction in the city of 
 Lancaster, or in any of the towns mentioned in this act, or in the act to which this 
 is ii supplement, unless such person or persons shall have resided and been a 
 
STATUTES. 
 
 459 
 
 licensed retailer in the said city or town at least six months immediately preceding 
 such sale; and that, under such pretence of declining business, no person or per- 
 sons as aforesaid shall dispose of his, her or their stock of goods or merchandise 
 by public auction in the said city or towns more than once in any term of twelve 
 successive months; and that every person or persons offending against this section 
 shall upon conviction forfeit and pay a fine of not less than fifty nor more than 
 five hundred dollars to the commonwealth; and the like proceedings shall be had 
 against such person or persons as are directed by this act, and by the act to which 
 this is a supplement, in cases of auctioneers violating the provisions of the said 
 act. 
 
 § 29. The mode of proceeding against any person for the violation of the pro- 
 visions of this act, or the act to which this is a supplement, shall be by indictment 
 in the court of quarter sessions of the proper county; and whenever complaint 
 shall be made to any justice of the peace or alderman of the proper county or city, 
 on oath or affirmation, against any person for violating the provisions of the same, 
 it shall be his duty to issue a warrant for the apprehension of such person, and 
 compel him to enter a recognizance with sufficient sureties for his appearance at 
 the next court of quarter sessions of the proper county to answer the said com- 
 plaint; and any person being thereof duly convicted shall pay a fine for the use 
 of the commonwealth of not less than fifty nor more than five hundred dollars at 
 the discretion of the court, together with the costs of prosecution; and so much 
 of the fourth section of the act to which this is a supplement as authorizes suit to 
 be brought for the penalty of five hundred dollars be and the same is hereby 
 repealed, except as to suits now brought and pending. 
 
 § 30. Sales at auction shall be regulated in the boroughs of Harrisburg, Car- 
 lisle, Marietta, Columbia and York, Frystown and Buttstown and West Chester, 
 and the borough of Chambersburg, in the same manner as is provided for in the 
 preceding sections of this act for the city of Lancaster, the auctioneers to be 
 appointed in the same manner, pay the same duties, give the same security, and 
 be liable to the same regulations and penalties. [These provisions are extended 
 to the borough of Lebanon, the different towns and villages in the county of 
 Lebanon, and the city of Williamsport, by the Act 6 April, 1833, P.L. 171; to the 
 borough of Reading, by Act 3 March, 1843, P.L. 26; to Schuylkill County, by Act 
 17 April, 1846, P.L. 364; to Greene County, by Act 12 February, 1849, P.L. 51; 
 to Washington County, by Act 9 April, 1849, P.L. 507; to Lycoming County, by 
 Act 13 April, 1854, P.L. 328; to the counties of Dauphin, Sullivan, Wyoming and 
 Bucks, by Act 20 April, 1854, P.L. 418; to Fayette County, by Act 12 May, 1857, 
 P.L. 471; to Lawrence County, by Act 1 6 March, 1 859, P.L. 1 5 1 ; to the borough 
 of Strasburg, by Act i April, 1863, P.L. 202; and to the city of Franklin, by Act 
 10 April, 1869, P.L. 833. They are repealed as to Uniontown by Act 10 August, 
 1864, P.L. 959. The special acts relating to auctions and auctioneers in the dif- 
 ferent counties, cities and boroughs of the state, have become too numerous for 
 insertion in the digest, even by way of note; for their provisions, the parties 
 locally interested are referred to the pages of the pamphlet laws.] 
 
 § 31. It shall not be lawful for any person or persons within the limits of the 
 counties of Northampton, Dauphin and Lehigh to expose to sale, and sell at auc- 
 tion or outcry to the highest bidder, any goods, wares or merchandise not manu- 
 factured or produced by him, her or them within the limits of the said counties of 
 Northampton, Dauphin or Lehigh : Provided, that this act shall not be so con- 
 strued as to prohibit sales by sheriffs, coroners, constables, executors or adminis- 
 trators, trustees or assignees, or other persons who by law are required to sell by 
 auction; nor shall it be so construed as to prohibit sales at auction of horses, 
 mules or cattle, or any kind of animals, nor carriages, wagons, harness or farming 
 
460 APPENDIX. 
 
 utensils, or mechanical instruments, nor to secondhand household or kitchen fur- 
 niture; nor shall it be so construed as to prohibit merchants who have been in 
 business in the respective counties for a period of six months prior thereto; nor 
 shall it be so construed as to prohibit mechanics or professional men from selling 
 at auction the tools, books or implements of their trade or calling; nor, in any of 
 the foregoing cases, the employment of an auctioneer or agent to do what his, her 
 or their principal may laviffuUy do. 
 
 § 32. Each and every person offending against the provisions of this act shall, 
 for every such offense, forfeit and pay the sum of fifty dollars, to be recovered 
 before any alderman or justice of the peace in an action of debt, one-half to the 
 party who shall bring suit, and one-half to the use of the proper county; and no 
 person shall be disqualified from testifying by reason of any interest he may have 
 as a citizen of such county : Provided, that before any warrant of arrest or capias 
 shall issue to hold the party to bail, the plaintiff, or his or her agent or attorney, 
 shall file an affidavit setting forth the cause of action. 
 
 § 33. All acts and parts of acts of assembly inconsistent with the provisions of 
 this act are hereby repealed; and laws in force for the collection of debts shall be 
 held to apply to the institution of suit and the recovei-y of the penalty under this 
 act. 
 
 III. — General Provisions. 
 
 § 34. It shall be the duty of each and every citizen within this commonwealth 
 who has obtained or shall obtain a commission from the governor authorizing him 
 to make sales by auction of household and kitchen furniture, at the dwelling-house 
 of the owner thereof or otherwise, to render to the auditor-general a quarterly 
 account under oath or affirmation of all effects and property sold by him, desig- 
 nating therein such as were sold by order of executors and administrators, naming 
 the said executors and administrators, and their respective testators or intestates. 
 
 § 35- Whenever any executor or executors, administrator or administrators, 
 shall expose to sale, at any place or places within two miles of the state house in 
 the city of Philadelphia, or within the chartered limits of the city of Pittsburgh, by 
 way of public auction, vendue or otherwise, any lands, tenements, goods or chat- 
 tels of their respective testators or intestates, it shall be the duty of the said 
 executor or executors, administrator or administrators, to make known and declare 
 publicly before and on the day and at the place of sale the names of their respec- 
 tive intestates; and if the same be not done by the said executor or executors, 
 administrator or administrators, the person or persons conducting, or in anywise 
 concerned in the management of such sale, shall be subject to all the penalties 
 provided in the sixth section of the act passed on the second day of April, 1S22, 
 against any person or persons not duly qualified to use or exercise the business of 
 an auctioneer. 
 
 § 36. No sheriff, constable or other officer shall sell or dispose of, by way of 
 vendue, at any place or places within two miles of the state house in the city of 
 Philadelphia, or within the chartered limits of the city of Pittsburgh, any lands, 
 tenements, goods or chattels, other than such as are taken in execution and liable 
 to be sold by order of law or distrained for rent in arrears; and if any sheriff or 
 constable or other officer fraudulently or wilfully violate or evade this provision 
 of this act, it shall be deemed to be a misdemeanor in office, for which the offen- 
 der may be prosecuted by indictment in any court of competent jurisdiction. 
 
 § 37. If any auctioneer, having paid in advance to the treasurer the sum pre- 
 scribed by law, shall apply before the expiration of the year for which he shall 
 have been commissioned to obtain from the governor another commission of a 
 higher or more extensive nature as auctioneer, in order to procure which the law 
 
STATUTES. 461 
 
 requires a larger sum to be paid to the state treasurer, the said auctioneer shall be 
 allowed, in making such payment, a credit for so much of the sum paid by him in 
 advance as is proportionate to the unexpired term of his original commission. 
 
 § 38. Each and every commissioned auctioneer vi'ithin this commonwealth 
 shall, and he is hereby required on all sales of household and kitchen furniture 
 and wearing apparel, whether the same shall have been in actual use or not, who 
 may be authorized to make such sales, to demand and receive of the gross 
 amount of such sales so made the sum of one dollar and fifty cents for every 
 hundred dollars thereof, and at and after the same rate for any less sum, and shall 
 account for and pay over the same to the state treasurer, in such manner as is or 
 shall be provided by law for moneys arising from duties on sales by auction: 
 Provided, that the duty of one dollar and fifty cents on one hundred dollars' 
 worth of household and kitchen furniture and wearing apparel, which shall actu- 
 ally have been in use, and which shall be sold as in this section mentioned, shall 
 not be demanded or received by any such auctioneer, unless the entire amount of 
 the sales of said goods, being the property of any one person, or more than one 
 person in common, and by him sold at any one time and at intervals of not less 
 than three months, shall exceed the sum of one hundred dollars ; but such auc- 
 tioneer shall nevertheless make return upon oath or affirmation of all such sales 
 in the usual manner according to law. 
 
 § 39. If any person or persons whatsoever shall give or sell any rum, wine or 
 other strong liquors, at the time of any such vendue, to any person or persons 
 attending the same, he, she or they so selling or giving any liquors shall forfeit 
 and pay for the first offense the sum of four pounds, and for the second and every 
 other offense the sum of five pounds. 
 
 § 40. Every of the fines and forfeitures accruing or becoming due for offenses 
 against this act shall be paid one-half to the overseers of the poor, for the use of 
 the poor of the township within which such offense may be committed, and the 
 other half to the use of him or them who shall inform or sue for the same, before 
 any justice of the peace of this province, who is hereby empowered and author- 
 ized to hear and determine the same, and to convict the offender or offenders, 
 either on his own view, or by the legal testimony of one or more witnesses ; saving 
 to every such offender or offenders the right of appeal in like manner as is pro- 
 vided in and by an act entitled " An act for the more easy and speedy recovery 
 of small debts"; which fines and forfeitures shall be recovered by distress and 
 sale of the offender's goods, or for want of such distress, if the offender refuse to 
 pay, he, she or they shall be committed to prison for every such fine, where th» 
 same is twenty shillings, the space of eight days without bail or mainprise, and 
 so in proportion for any of the greater fines. 
 
 § 41. Provided, that every such conviction be made within one month after 
 such offense or offenses are committed. 
 
 § 42. All and every of the auctioneers within this commonwealth shall, in lieu 
 of the sums they are now required to demand and receive on the gross amount of 
 sales made of dutiable articles, hereby are required to demand and receive on the 
 amount aforesaid one dollar and fifty cents for eveiy hundred dollars of such 
 amount, and at and after the same rate for any less sum, and they shall account 
 for and pay over the same in the usual manner. 
 
 § 43. No duty shall be paid on the sale of any real estate, . . . nor any ship or 
 vessel, the property of any subject or subjects of the United States, or any of them. 
 
 § 44. The accounts of the auctioneers for duties received by them for the use 
 of the commonwealth shall be settled quarter-yearly, and the amount found due 
 on such settlement shall be immediately paid into the state treasury; but if any 
 auctioneer or auctioneers shall neglect or refuse to pay into the state treasury, or 
 
462 APPENDIX. 
 
 deposit [in the Bank of Pennsylvania] to the credit of the commonwealth, within 
 one month after the expiration of such quarter, the amount so found due the 
 commonwealth, the commission or commissions of such auctioneer or auctioneers 
 shall from thenceforth cease, determine and become absolutely void, and another 
 person shall be appointed in his or their place; and the state treasurer shall 
 moreover immediately proceed against the delinquent auctioneer or auctioneers, 
 and their sureties, for the recovery of the moneys so found due from him or them, 
 in the same manner as he is authorized to do in other cases; and it is hereby 
 made the duty of the auditor-general to report to the governor any such failure on 
 the part of the auctioneer. 
 
 § 45. The mode of proceeding against any person for a violation of any of the 
 provisions of the laws relating to auctions and auctioneers shall be by indictment 
 in the court of quarter sessions of the proper county; and whenever complaint 
 shall be made to any justice of the peace or alderman of the proper county or 
 city, on oath or affirmation, against any person for violating the provisions of the 
 same, it shall be his duty to issue a warrant for the apprehension of such person, 
 and compel him to enter a recognizance with sufficient sureties, for his appearance 
 at the next court of quarter sessions of the proper county to answer the said com- 
 plaint; and any person being thereof duly convicted, shall pay a fine of not less 
 than three hundred nor more than one thousand dollars, for each and every 
 offense, at the discretion of the court, together with the costs of prosecution ; one- 
 third of which fine shall go to the use of the person or persons lodging the infor- 
 mation, and the residue shall be for the use of the commonwealth. 
 
 § 46. It shall be the duty of the attorney-general, or his deputy for the proper 
 county, upon complaint to either of them made, under oath or affirmation, of a 
 violation of any of the provisions of the laws relating to auctions or auctioneers, 
 or under the direction of the auditor-general or state treasurer, to prepare a bill 
 of indictment against the offender or offenders, and present the same to the grand 
 jury then in session, or to the next grand jury which shall assemble in and for the 
 county in which such violation may have taken place; and the attorney-general or 
 his deputy, as the case may be, shall be allowed by the auditor-general a compen- 
 sation out of the amount collected, not exceeding ten per cent, on the same. 
 
 § 47. The tax or duty payable by auctioneers upon sales of goods, wares or 
 merchandise of foreign growth or manufacture, by virtue of any law of this com- 
 monwealth, shall be no greater than upon similar sales of goods, wares or mer- 
 chandise of American growth or manufacture; and all former laws or parts of 
 laws at variance with this act shall be and are hereby repealed. 
 
 § 48. The amounts to be paid for commissions for one year as auctioneers in 
 this commonwealth shall be as follows, viz. : 
 
 For a commission of the first class, three thousand dollars. 
 
 For a commission of the second class, two thousand dollars. 
 
 For a commission of the third class, twelve hundred and fifty dollars. 
 
 For a commission of the fourth class, seven hundred and fifty dollars. 
 
 For a commission of the fifth class, two hundred dollars. 
 
 No. 425, of 1873. — -An Act relating to auctioneers in the city of Philadelphia, — 
 
 P.L. 450. 
 
 § I. That upon any citizen of the United States and of the state of Pennsyl- 
 vania paying into the state treasury the sum of five hundred dollars, and giving 
 bonds in the sum of ten thousand dollars with two or more sufficient securities, to 
 be approved of by the judges of the court of common pleas in the city of Phila- 
 
STATUTES. 463 
 
 delphia, the governor thereupon shall grant him a commission of the sixth class, 
 for one year, to make sales, to any amount, by auction, or by public outciy, or on 
 commission, in said city, of horses, cattle and live stock, of all descriptions, and 
 vehicles of all kinds, together with all articles used therewith, or connected with 
 the keeping of them. 
 
 No. 222, of 1874. — An Act to regulate the commission or license fee to be paid 
 by auctioneers. — P.L. 'i'i^. 
 
 § I. That from and after the first day of May next auctioneers shall be rated 
 with merchandise brokers, and in lieu of all commissions heretofore directed to be 
 paid by them shall pay in the same manner as brokers a license-tax similar to that 
 paid by said brokers and no other : Provided, that no auctioneer's license shall be 
 issued for the city and county of Philadelphia for a less sum than five hundred 
 dollars, and all former laws and parts of laws at variance with this act, or prescrib- 
 ing other forms, shall be and are hereby repealed. 
 
 RHODE ISLAND. — Public Statutes, 1882. 
 One or more auctioneers are to be chosen annually in each town : Chap. 37, § I. 
 
 Chapter 137. 
 
 § I. In addition to the auctioneers elected in town meeting, the town council 
 of any town may from time to time appoint as many more for their town as they 
 may deem expedient, to hold their offices until the next annual election of town 
 officers. 
 
 § 2. Every auctioneer shall, vrithin ten days after his election or appointment, 
 give bond to the town treasurer with sufficient sureties, in a sum not exceeding 
 ten thousand dollars nor less than two thousand dollars, at the discretion of the 
 town treasurer, conditioned faithfully to execute the duties of his office according 
 to law, to pay over all moneys received by him for goods sold at auction to the 
 owners thereof, and to pay over all duties to the state and town which shall accrue 
 on goods so sold by him. 
 
 § 3. The town treasurer of every town shall transmit to the general treasurer 
 the name of every auctioneer appointed as aforesaid, and a copy of the bond of 
 such auctioneer; within twenty days from the time every such bond shall be given ; 
 and if any town treasurer shall neglect to transmit the name of any auctioneer or 
 the copy of the bond given by such auctioneer to the general treasurer* as afore- 
 said, he shall forfeit one hundred dollars, to be sued for and recovered by the 
 general treasurer, to the use of the state. 
 
 § 4. The bond aforesaid may be sued in the name of the town treasurer by any 
 person claiming a forfeiture thereon, such person first giving security for costs by 
 endorsing the writ, or by procuring some sufficient citizen of the state to endorse 
 the same, who shall be liable for costs in case the defendant shall recover, and 
 against whom execution shall issue therefor. 
 
 § 5. In case of forfeiture adjudged in an action on said bond, judgment shall 
 be rendered for the penalty of the bond, and execution shall issue for the amount 
 ascertained to be due to the plaintiff. 
 
 § 6. Like security for costs shall be given and like proceedings had, when 
 scire facias is sued out on said judgment for an additional breach of said bond: 
 Provided, that when any suit shall be commenced on it by the general treasurer, 
 notice of such fact shall be endorsed on the writ, but no security for costs shall be 
 given, nor shall the defendant in such case recover costs in any event. 
 
464 APPENDIX. 
 
 § 7. Every auctioneer, before exposing any real or personal estate to public 
 sale, shall make out in writing and sign and publicly read the conditions of sale. 
 
 § 8. Whenever the whole amount of sales at any public auction shall not 
 exceed four hundred dollars, the auctioneer shall have for making such sale two and 
 one-half per centum commission thereon ; if the amount of the sale exceed that sum 
 and do not exceed twenty thousand dollars, he shall have only one per centum on 
 such excess; and if the amount of the sale do not exceed thirty thousand dollars, he 
 shall have three-fourths of one per centum on such excess ; and if the amount of 
 the sale exceed thirty thousand dollars he shall have one-fourth of one per centum 
 on such excess ; but nothing herein contained shall be so construed as to prevent 
 any person interested in selling any property by auction from making a. special 
 contract with the auctioneer for selling the same. 
 
 § 9. No officer of any corporation shall act as auctioneer in the foreclosure of 
 any mortgage held by such corporation. 
 
 § 10. The town councils of the several towns and city councils of Providence and 
 Newport shall have power to establish such regulations for the conducting of sales 
 and auctioneers' commissions in their respective towns as they may think neces- 
 sary ; anything in the preceding section to the contrary notwithstanding. 
 
 §11. All sales by auction shall be made by an auctioneer, and shall be sub- 
 ject to a duty to the state, except the following, namely, sales made pursuant to 
 any judgment, sentence or decree, order or rule of any court or judicial officer of 
 the state, or of any court of the United States having jurisdiction within the state, 
 sales made by virtue of any writ, execution, warrant of distress, or order of law, or 
 the property of any town, sales of property held by executors, administrators or 
 guardians of estates lying within the state, sales of pews, or choice of pews in 
 houses of public worship, and sales of goods exhibited at any fair held by the 
 Rhode Island Society for the Encouragement of Domestic Industry or by the 
 Aquidneck Agricultural Society, and which may be sold by auction during the 
 continuance of said fair. 
 
 § 12. The duty upon all property sold by auction in the state, and which is 
 liable to duty, shall be one-tenth of one per centum, and shall enure one-eighth 
 part thereof to the use of the town in which such sales shall be made, and the 
 remainder thereof to the use of the state. 
 
 § 13. The duties aforesaid shall be calculated on the sums for which the prop- 
 erty so exposed to sale shall be respectively struck off, and shall be by the auc- 
 tioneer selling the same retained out of the amount of his said sales, and paid over 
 to the proper officer. 
 
 § 14. Whenever any sale or bidding shall be made at public auction in regard 
 to any real estate, or in regard to any goods, wares, merchandise or other per- 
 sonal property, upon any less quantity than the whole, for the purpose of fixing 
 the price of any larger quantity or of the whole, in every such case the whole 
 amount of the property sold, transferred, contracted for or negotiated by the 
 terms and conditions of such auction shall be subject to a duty as if the whole 
 had been set up and sold by auction. 
 
 § 15. Whenever any auction shall have been actually begun, and the final 
 purchase or bidding shall have been made by the owner of the property, by the 
 auctioneer, or by any person employed by either of them, the same duty shall be 
 •paid as if the bidding had been made by any other pei-son. 
 
 § 16. Every auctioneer shall, within twenty days after the expiration of every 
 six months, the first six months to be computed from the date of his bond, render 
 a just and true account in writing, subscribed by him, to the general treasurer of 
 all property subject to duty by him sold as aforesaid from the time of his appoint- 
 ment and giving bond as aforesaid or the time that the last account by him was 
 
STATUTES. 465 
 
 transmitted and rendered as aforesaid, the amount of each day's sales and the 
 date thereof. 
 
 § 17. Such auctioneer shall take before some magistrate authorized to admin- 
 ister oaths the following oath, to be endorsed and certified on the account so ren- 
 dered as aforesaid : I [naming the person] do solemnly swear or affirm that this 
 account to which I have subscribed my name contains a just and true account of 
 all property sold or struck off by me, subject to duty by law, within the time men- 
 tioned in the said account, and of the days on which the same were respectively 
 sold, and that I have attended such sales personally, and have examined the 
 entries of such sales in the book kept by me for that purpose, and know this 
 account to be in all respects correct; to which oath the said auctioneer shall 
 subscribe his name. 
 
 § 18. Every such auctioneer shall, within ten days after rendering the account 
 and taking the oath aforesaid, pay the amount of duty upon such account of sales 
 to the general treasurer for the use of the state, and the amount of duty due the 
 town to the town treasurer ; and in case no sales on which duties are payable 
 shall have been made, the auctioneer shall make an affidavit thereof at the time 
 and in the manner above directed, and transmit such affidavit to the general 
 treasurer. 
 
 § 19. Every auctioneer who shall fail to render his account or affidavit to the 
 general treasurer as aforesaid, or shall fail to pay the duty due the state or town 
 at the time and in the manner aforesaid, shall forfeit for every such neglect five 
 hundred dollars, to be sued for by the general treasurer to the use of the state; 
 unless the neglect lie in not paying the duty due the town, and then by the town 
 treasurer to the use of the town. 
 
 § 20. Every auctioneer elected and qualified according to law in any town may 
 sell real and personal estate in any other town in the county in which he shall 
 have been so elected ; provided such other town shall have failed to elect or 
 appoint an auctioneer, or if the auctioneer elected by such other town shall have 
 failed to qualify himself according to law within ten days after his election. 
 
 § 21. Every auctioneer having made sales in any other town than the town in 
 which he is elected or appointed shall make return of such sales to the town in 
 which they shall have been made, in the same manner as he is now required to 
 make returns to the town in which he is elected, and such auctioneer may omit 
 from his returns to the town in which he is elected any sales made by him as 
 aforesaid. 
 
 § 22. Every person who shall hereafter assume or exercise the office of an auc- 
 tioneer in any town unless as above excepted, without being legally chosen thereto, 
 and without being duly qualified, shall forfeit five hundred dollars to the use of 
 such town. 
 
 SOUTH CAROLINA. — General Statutes, 1882, Chap. XXIX. 
 
 § 1250. Every vendue-master and auctioneer, before he shall act in such 
 capacity, shall be compelled to give to the council of the city or town where he 
 may reside full and ample security for the due and faithful performance of his 
 duty as auctioneer or vendue-master, as the case may be. 
 
 § 1251. Every person who shall purchase any lands, houses, horses, cattle, 
 ships, boats or other vessels, goods, wares and merchandise, at any public sale m 
 this state, and which purchase shall be entered in the books of the vendue-master 
 so selling such property, such person refusing to comply with the conditions of 
 said sale within seven days thereafter shall be liable to all losses arising thereon 
 to the original owner; and for the more speedy ascertaining such losses, the ven- 
 
466 APPENDIX. 
 
 due-master is authorized to resell such lands, houses, horses, cattle, ships, boats 
 or other vessels, goods, wares and merchandise, on the original conditions, giving 
 seven days' notice of said sales; and whatever deficiency shall arise on said pur- 
 chaser's non-compliance, the vendue-master shall recover, at the first ensuing 
 court having jurisdiction, such loss from every person so declining to comply with 
 the conditions of the original purchase, together with the commissions and other 
 expenses attending the sale. No judgment given in any such case shall be arrested 
 or stayed for or by reason of any error or mistake in the proceedings. 
 
 § 1252. The owners of property placed in the hands of vendue-masters or auc- 
 tioneers, either for public or private sale, are authorized and empowered to recover 
 from said vendue-masters, in the most summary manner, before any court of com- 
 petent jurisdiction in the state, for goods or other property by them sold on 
 account of such owners. Judgment given in such case shall not be arrested or 
 stayed for or by reason of any error or mistake in the proceedings. 
 
 § 1253. Nothing in this chapter shall be so construed or understood as to ren- 
 der vendue-masters or auctioneers responsible for the loss of goods or other prop- 
 erty occasioned by the act of a public enemy, the act of God, or by any other 
 cause which man could not prevent or foresee. 
 
 TENNESSEE. — Thompson and Steger's Compilation of Statutes, 1871. 
 
 § 550. The occupations and transactions that shall be deemed privileges and be 
 taxed, and not be pursued or done without license, are the following : 
 
 I. The regular business of selling at auction. 
 
 § 553 a. Clause J. — Every commission or auction merchant shall pay for his 
 license one per cent, on the dollar, in the gross amount of all his sales, public and 
 private; and shall make a semi-annual statement of his sales to the county court 
 clerk, under oath, and pay the tax thereon semi-annually. [Act of 1867-8, Chap. 
 
 79. § 5. <:1- -] 
 
 [To this section Messrs. Thompson and Steger append the following note : 
 " The above provision is repealed so far as it applies to commission merchants, 
 and they are taxed as merchants : §§ 682 «, 682 d. Are auctioneers taxed as mer- 
 chants? See §§ 6823, 550, sub-sec. 2. If so, then the above provision is obso- 
 lete, and they pay a privilege tax equal to the ad valorem tax on their capital : 
 § 6?>2f. If not, then the above provision, being the one of latest date in the 
 statute-books which prescribes the amount of license to be paid by auctioneers, 
 and superseding the Code, § 553, sub-sec. 8, and also the Act of 1865, chap. 8, 
 § I, cl. 7, must be in force." Sections 682 a, 682 b, and 682^^ above referred to, 
 are given as follows in Messrs. Thompson and Steger's compilation : 
 
 " § 682 a. That the taxes on the sales and purchases of merchandise heretofore 
 levied in this state be, and the same are hereby, abohshed ; and sections 482 and 
 358 [53S] °f "is Code are hereby amended by omitting therefrom the word 
 ' merchandise.' 
 
 " § 682 h. Hereafter merchants shall pay an ad valorem tax upon the capital 
 invested in their business, equal to that levied on all taxable property; and the 
 term ' merchant,' as used in this act, indicates all persons or copartnerships 
 engaged in trading or dealing in any kind of goods, wares and merchandise, either 
 on land, or at any steamboat, wharf-boat or other craft stationed or plying in the 
 waters of this state ; and whether such goods, wares and merchandise be kept on 
 hand for sale, or the same be purchased and delivered for profit as ordered. But 
 nothing in this act contained shall in any wise affect the collection of privilege 
 
STATUTES. 467 
 
 taxes upon the avocations declared by § 550 of the Code to be privileges, except 
 the business of selling merchandise upon commission. 
 
 " § 682 y^ In addition to the ad valorem tax to be paid by merchants on their 
 capital, they shall be liable and required to pay a license-tax equal in amount to 
 the ad valorem tax ; provided, that in no case shall the license-tax be less than 
 five dollars; and section five of the act passed January 18, 1870, entitled 'An 
 act to amend the revenue laws of this state,' is hereby amended in accordance 
 with the provisions of this act. — Act of 1870-71, ch. 51, § 2."] 
 
 Title IX. Of Corporations. — Chapter I. Of Municipal Corporations. — 
 Article II. Powers of Municipal Corporations. 
 
 § 1359. Every corporation thus formed shall have full power and authority — 
 
 § 9. To provide for the licensing, regulating and taxing of auctions, theatrical 
 and other shows and exhibitions. 
 
 1873. Chapter 118. 
 
 § 15. That stocks of merchandise, wares, goods and chattels sold at auction 
 or on commission shall be assessed for taxation, and the following is declared to 
 be the method by which the amount to be returned or assessed shall be deter- 
 mined, viz. : where any person, company or firm shall have sold goods, wares, 
 merchandise or chattels at auction or on commission, whether in the regular busi- 
 ness of selling at auction or on commission, or shall have made such sales in con- 
 nection with any other business, to ascertain the aggregate amount of said auction 
 or commission sales for the period engaged in business, not exceeding twelve 
 months, and return one-third of said amount of sales for taxation. 
 
 § 22. That the clerks' of the county courts of the several counties of this state 
 shall collect all taxes on merchants and privileges, as now provided by law; and 
 shall be subject to all the pains and penalties for failure to pay such taxes over to 
 the Comptroller that are provided for in this act in the case of tax collectors. 
 Provided, that in counties where a privilege tax collector is provided by law, such 
 privilege tax collector shall collect the same. 
 
 § 46. That the occupations and business transactions that shall be deemed 
 privileges and be taxed, and not be pursued or done without license, are the fol- 
 lowing, viz. : — ... auctioneers. y 
 
 1875. Chapter 91. 
 
 § 24. That in all cases where the amount of privilege tax is to any extent 
 dependent upon a per cent, of the amount of capital used in the exercise of such 
 privilege, or the number of articles sold, or where any uncertain amount, number 
 or quality, it shall be the duty of the clerk of the county court to summon before 
 him the person, or if a corporation, the person having the care and custody of the 
 books of such corporation, exercising such privilege, and examine him upon oath 
 touching the amount of tax due for the exercise of such privilege, and the clerk 
 may compel such person on the part of the corporation to produce their books in 
 verification of the amount due ; and this act shall apply as well to those who have 
 given bond to account for the amount due as to those who have failed or refuse 
 to execute such bond. 
 
 § 25. That any person failing to appear or to produce their books, as required 
 in the foregoing section, shall be guilty of a misdemeanor, and on conviction 
 
468 APPENDIX. 
 
 shall pay a fine of not less than one hundred dollars nor more than one thousand 
 dollars, and shall be imprisoned at the discretion of the court. 
 
 Chapter 92. 
 § 13. That the mayor and aldermen of each municipality shall have power by 
 ordinance within the municipality. 
 
 6th. To regulate, license and tax . . . auctions . . . 
 
 1877. Chapter 86. 
 § I. That all laws requiring auctioneers to pay a privilege tax be, and the same 
 are hereby, repealed : Provided, that the provisions of this act shall apply only 
 to auctioneers of live stock, and the productions of farms and manufactories 
 located in this state. 
 
 TEXAS. — Revised Statutes, 1879. 
 
 Art 383. [The city council shall have power] to license, tax and regulate 
 merchants, commission-merchants, hotel and innkeepers, drinking-houses or 
 saloons, bar-rooms, beer saloons, and all places or establishments where intoxi- 
 cating or fermented liquors are sold ; brokers, money brokers, real estate agents, 
 insurance agents, insurance brokers, and auctioneers, and all other trades, profes- 
 sions, occupations and callings, the taxing of which is not prohibited by the con- 
 stitution of the state, which tax shall not be construed to be a tax on property. 
 
 Art. 3SS. To authorize the proper officer of the city to grant and issue licenses, 
 and to direct the manner of issuing and registering thereof, and the fees and 
 charges to be paid therefor ; no license shall be issued for a longer period than 
 one year, and shall not be assignable except by permission of the city council. 
 
 Art. 4665. There shall be levied on and collected from every person, firm, 
 company or association of persons pursuing any of the following named occupa- 
 tions an annual tax (except when herein otherwise provided) on every such occu- 
 pation or separate establishment, as follows : 
 
 From every auctioneer doing business in a city of ten thousand inhabitants or 
 more, an annual tax of seventy-five dollars ; from every auctioneer in a city or 
 town of five thousand and not more than ten thousand inhabitants, fifty dollars ; 
 from every auctioneer in a city or town of two thousand inhabitants and not more 
 than five thousand, thirty dollars; from auctioneers in all other towns or villages, 
 twenty dollars. 
 
 Arts. 4666 and 4668. [As amended by Chap. 134, Acts of 1879.] The com- 
 missioners' courts of the several counties of this state shall have the power to levy 
 taxes equal to one-half of the state tax herein levied, except on occupations on 
 which there is a specific rate of taxation payable to the county as fixed in this 
 act : provided, that any one wishing to pursue any of the vocations named in this 
 chapter, upon which the annual state tax is more than ten dollars for a less period 
 than one year, may do so by paying /ro raid of such occupation for the period he 
 may desire : provided further, that no such occupation license shall issue for a 
 less period than three months ; and provided further , that the receipt of the proper 
 officer shall be primd facie evidence of the payment of such tax . . . provided 
 further, that the mayor and board of aldermen of any incorporated city or town 
 shall in no case levy a greater tax on any occupation than that authorized by this 
 section to be levied by the county commissioners' court. 
 
 The mode of issuing licenses is regulated by chapter 134, acts of 1879. 
 
STATUTES. 469 
 
 Penal Code. 
 
 Art. 1 10. Any person who shall pursue or follow any occupation, calling or 
 profession, or do any act taxed by law, without first obtaining a license therefor, 
 shall be fined in any sum, not less than double the amount of the taxes so due, 
 and not more than double that sum. 
 
 Arl. III. [As amended by Chap. 44, Acts of 1881.] The preceding article 
 shall not be construed so as to affect any civil remedy to enforce the collection of 
 taxes; and a tax receipt for said tax, from the proper officer, shall be a sufficient 
 license to follow such occupation, calling or profession. 
 
 Art. 112. [As amended by Chap. 44, Laws of 1881.] Any person prosecuted 
 under Article no shall have the right at any time before conviction to have such 
 prosecution dismissed upon payment of said taxes and all costs of said prosecu- 
 tion, and procuring the license to follow the occupation for the pursuing which 
 without license the prosecution was instituted; and no prosecution shall be com- 
 menced against any person after the procuring said license, notwithstanding they 
 may have followed such occupation, calling or profession before procuring said 
 license : provided, said license shall cover the time said person has actually fol- 
 lowed said occupation, calling or profession. The county clerk shall be entitled 
 to ten cents for issuing the license, to be paid by the person to whom it is issued. 
 
 Art. 757. If any auctioneer or other person shall sell at auction any horse, 
 mule or ox, without first requiring from the party for whom such sale is made a 
 written statement signed by him of the manner in which, and the name and resi- 
 dence of the person from whom he acquired such article, he shall be fined not less 
 than fifty nor more than one hundred dollars. 
 
 Art. 758. If any auctioneer or other person shall sell at auction any horse, 
 mule or ox, and shall fail, within ten days after such sale, to file with the clerk of 
 the county court the written statement specified in the preceding article, duly attested 
 with his certificate as to its genuineness, and accompanied with a further certificate 
 containing an accurate description of the animal sold, together with the names 
 and residence of the seller and purchaser, he shall be punished as prescribed in 
 the preceding article. 
 
 UTAH. 
 
 In Utah, the power to license, tax and regulate auctioneers and other traders 
 is generally given by their charters to the municipal corporations. See Compiled 
 Laws of Utah (1876), 696, et seq. 
 
 VERMONT. — Revised Laws of Vermont (1880), §§ 3963, 3964, 3965. 
 
 The selectmen of a town may, by writing under their hands, license for the 
 term of one year or for a less period one or more persons to be auctioneers in 
 such town; and a person receiving such license shall pay to the selectmen for the 
 use of such town not less than one dollar nor more than one hundred and fifty 
 dollars; but the selectmen may revoke a license so granted when in their judg- 
 ment the public good requires it. 
 
 The selectmen shall record licenses so granted in a book kept by them for that 
 purpose. 
 
 If a person not having license therefor in force in a town sells or offers for sale 
 at auction in such town goods or chattels, he shall forfeit not more than one hun- 
 dred dollars nor less than ten dollars; but this section shall not extend to sales at 
 auction of property owned by citizens of such town, or to sales made by any per- 
 
470 APPENDIX. 
 
 son required by law to sell real or personal estate at public auction, or to sales by 
 licensed peddlers in the open street, on public commons or fair grounds. 
 
 VIRGINIA. — Code, 1873, Chap. 34. 
 
 § 34. No person shall sell at auction or public outcry without a license except 
 in the following cases, to wit : 
 
 First. The estate of decedents may be sold by the personal representative 
 
 according to law or the provisions of the will. 
 Second. Property conveyed by a deed of trust, or decreed or ordered to be 
 
 sold by a court, may be sold according to the deed, decree or order. 
 Third. Any person may sell the agricultural products of this state, arising 
 
 from his own or other labor under his control, or his real or personal 
 
 estate not purchased or sold on speculation. 
 Fourth. An officer may sell property distrained by him under execution or 
 
 other legal process. 
 
 § 35. An auctioneer shall keep an account of all sales made by him, showing 
 the aggregate amount thereof, and whenever required by an assessor or commis- 
 sioner of the revenue, shall render an account for taxation of all his sales for the 
 period required by law to be stated, and shall sign and answer all such interroga- 
 tories respecting such sales as may be propounded to him in pursuance of law. 
 Such accounts, statements and answers shall always be on oath. 
 
 § 36. An auctioneer may conclude the sale of anything he is authorized to sell, 
 grant a certificate or other evidence of the same, and receive the money; -but no 
 sale shall be made by such auctioneer at any place other than the house or other 
 definite place named in the license as the place of business, or at such other place 
 as the person owning the property is authorized, in pursuance of this act, to sell 
 the same by auction, except that auctioneers may sell household and kitchen fur- 
 niture on the premises. Nor shall any auctioneer be allowed to sell goods, wares, 
 merchandise or other articles as aforesaid, in any county, town or corporation, 
 unless the owner thereof has obtained a license, if a license is required to sell the 
 same in this state, and has paid a tax as a merchant, and as much as a merchant 
 would be required to pay for one year. For a sale otherwise, or for a sale of any- 
 thing prohibited, and for any violation of this section, the person offending shall 
 pay a fine of not less than one hundred dollars nor more than five thousand dollars 
 for each offense. 
 
 § 37. Auctioneers shall consist of general auctioneers, real estate auctioneers, 
 and tobacco auctioneers, and shall be so classified that their powers and duties, 
 and the restrictions and penalties thereon, may be separate and distinct, that is to 
 say: 
 
 § 38. Any person licensed as a general auctioneer may sell any goods, wares, 
 merchandise and other articles not prohibited by law; but he shall not sell wine, 
 ardent spirits, malt liquors or any mixture thereof, unless and until he shall have 
 obtained a license therefor in the mode prescribed in this chapter (§ 86). 
 
 § 39. Any person licensed as a real estate auctioneer may sell at auction or 
 privately any real estate in this commonwealth entrusted to him for sale : provided, 
 that no such auctioneer shall be allowed to negotiate loans upon a mortgage of 
 real estate or otheiVise without taking out a stock broker's license therefor. If a 
 tax shall be imposed on the amount of the sales, the taxable sales shall be con- 
 strued to embrace all sales of real estate made by such auctioneer, whether such 
 sales be by public outcry or made privately. For any violation of this section, the 
 
STATUTES. 471 
 
 person offending shall pay a fine of not less than one hundred dollars nor more 
 than one thousand dollars for each offense. 
 
 § 40. Any person licensed as a tobacco auctioneer may sell at auction any 
 tobacco not prohibited by law to be sold. For any violation of this section, the 
 person offending shall pay a fine of not less than fifty dollars nor more than five 
 hundred dollars for each offense. 
 
 § 41. A common crier may cry for sale at anyplace in the county or corporation 
 in which his license issued any property, real or personal, for any auctioneer, 
 fiduciary, or for the owner of the property, where such owner is authorized to sell 
 the same by auction ; but he shall not conduct a sale otherwise than under the 
 present and immediate direction of the property owner, or other person authorized 
 to sell the same. He shall not, as such crier, receive money on account of the 
 sale, grant acquittances, or give any evidence of a sale or title to the purchaser. 
 He may receive for his services a stated compensation, but he shall not receive 
 any commission or percentage on the amount of the sale, nor any specific or con- 
 tingent interest in the sale as a compensation for his services. For any violation 
 of this section, the person offending shall pay a fine of not less than fifty dollars 
 nor more than five hundred dollars for each offense. 
 
 Chapter 35. 
 
 § 28. The specific license-tax on a general auctioneer to sell shall be twenty 
 dollars, and if the place of business is in a city or town having when assessed a 
 population of more than five thousand inhabitants, two dollars for every thousand 
 above that number; but said specific tax shall in no case exceed one hundred 
 dollars. And he shall pay an additional tax of one-fourth of one per centum on 
 the amount of sales for the year, to be ascertained and charged as is provided in 
 the case of liquor merchants. If he sells wine, ardent spirits, malt liquors, or any 
 mixture thereof, he shall pay a tax of one-half of one per centum on the amount 
 of sales, to be ascertained and charged as his other sales are ascertained and 
 charged. 
 
 § 29. The specific license-tax on a real estate auctioneer to sell shall be fifty 
 dollars ; and if the place of business is in a city or town containing when assessed 
 a population exceeding five thousand inhabitants, one hundred dollars. And he 
 shall pay an additional tax of one-fourth of one per centum upon the amount of 
 sales, to be ascertained and charged as is provided in the case of liquor merchants. 
 
 § 31. The specific hcense-tax on a tobacco auctioneer to sell shall be thirty 
 dollars. 
 
 § 32. The specific license-tax upon a common crier, to cry for sale, shall be 
 ten dollars. 
 
 WASHINGTON TERRITORY. — Laws of 1879, Chap. 130. 
 
 § I. If any person shall hereafter sell any goods, wares or merchandise at 
 auction or public outcry, or shall sell or barter such goods, wares or merchandise 
 from travelling boats, wagons, carts or other vehicles of any kind, or from any 
 pack, basket or other package carried on foot, without first having obtained a 
 license therefor from the board of county commissioners of the county in which 
 such goods are sold or bartered, such person shall be deemed guilty of a misde- 
 meanor, and upon conviction thereof shall be fined not less, than five nor more 
 than fifty dollars, and shall stand committed to the county jail of the county in 
 which such conviction may be had until such fines and costs of prosecution shall 
 be paid, or they may be discharged in due course of law : Provided, that this act 
 
472 APPENDIX. 
 
 shall not be so construed as to apply to any sea-going craft, or to administrators 
 or executors selling property of deceased persons, or to private individuals selling 
 their hoiisehold property or furniture or farming tools, implements or live stock, 
 or any produce grown or raised by such person, either at pubUc auction or private ' 
 sale. 
 
 WEST VIRGINIA. — Revised Statutes, 1878, Chap. 189. 
 
 § 2. No person without a state Ucense therefor shall exhibit any circus, 
 menagerie, theatrical performance, or public show to which admission is obtained 
 for money or other reward, or act as hawker or peddler, or act as auctioneer, or 
 practice the business of stock or other broker, by buying or selling for others 
 stocks, securities or property for a commission or reward, or practice the business 
 of a money broker or private banker by buying or selling uncurrent or depreciated 
 money or funds, or exchanging one kind of money or funds for another, for profit 
 or reward. Nor shall any person without a state license therefor sell or bai'ter, or 
 offer or expose for sale or barter, any patent right. 
 
 Chapter 190. 
 
 § 4. The annual state tax on licenses mentioned in this section shall be as 
 follows : 
 
 On every license to act as auctioneer, if the place of business be not in a town, 
 three dollars; if in a town, at the rate of ten dollars for every thousand of the 
 population of the town, according to the last preceding United States census. 
 
 WISCONSIN. — Revised STAXtrrEs, 1878, Chap. 68. 
 
 § 1585. There shall be paid by the auctioneer to the town treasurer for the use 
 of the town upon all sales by auction, made in a town and outside a city or village, 
 of goods, wares or merchandise, except household furniture which has been used 
 as such, two per centum out of the gross receipts accruing from such sales ; except 
 when sale is made by virtue of a chattel mortgage, or of a rule, order or judgment 
 of a court; or of some law of the state or of the United States respecting the col- 
 lection of some tax or duty; or in consequence of a general assignment of prop- 
 erty or effects for the benefit of creditors; or when made of property belonging 
 to the state or the United States ; or when made by or on behalf of any executor 
 or administrator ; or when made for the purpose of closing up his business by or 
 on behalf of any merchant who shall reside and trade in any town, city or village, 
 and who shall have paid the taxes lawfully levied on his stock in trade; or when 
 made on his farm property by or on behalf of a resident farmer \vho has paid the 
 taxes lawfully levied on his property : provided that in the two last cases such 
 sale shall be made in the town, city or village in which such taxes were paid. 
 Whenever the auctioneer or owner of the property sold, or any person employed 
 by them or either of them, shall buy anything at such sale, the same duty shall be 
 paid as if any other person were purchaser thereof, and sales on credit shall be 
 liable to duty as if made for cash. 
 
 § 1586. No person shall, without the limits of an incorporated city or village, 
 exercise the business of an auctioneer by selling any goods, wares, or merchandise 
 at any sale at which the highest bidder is deemed to be the purchaser, except in 
 cases where no duty m payable therefor under the provisions of this chapter, unless 
 such person shall have a license then in force authorizing the same from the town 
 clerk of the town in which such sale is made ; and for every violation hereof the 
 person offending shall forfeit fifty dollars, and pay to the town all the duties 
 required to be paid by this chapter. 
 
STATUTES. 473 
 
 § 1587. The several town clerks may grant under their hands license to exer- 
 cise the business of auctioneer within their respective towns and without the limits 
 of any incorporated city or village, for any term not exceeding one year from the 
 date thereof, to any inhabitant of the state who shall apply for the same ; provided 
 that the applicant shall first file with the clerk a bond to the town in the sum of 
 one hundred dollars with surety, to be approved by the county judge or chairman 
 of the town, conditioned that such applicant, being licensed, shall duly pay to the 
 town treasurer all the duties imposed by this chapter, and render to the town clerk 
 an account in writing, as required by section fifteen hundred and eighty-eight, 
 within twenty-four hours after the close of any sale at auction for which any duty 
 shall be payable. The clerk shall be entitled to receive from such applicant one 
 dollar as fees for every such license. 
 
 § 1588. Every auctioneer shall, within the time mentioned in the preceding 
 section, render to the town clerk a particular account in writing, verified by his 
 affidavit, of the gross amounts for which any goods, wares or merchandise liable 
 to duty have been sold by him, and of the amount of such duty paid to the town 
 treasurer. 
 
 § 1589. Each town clerk who shall receive any reports on sales at auction, 
 agreeably to the provisions of this chapter, shall at the annual town meeting render 
 an account thereof to said meeting containing the number of licenses by him 
 granted, the amount of duties reported by [to] him to have been paid to the town 
 treasurer, from whom paid, with the total amount of sales made by auction in such 
 town. 
 
 § 1590. The common council of any city and the board of trustees of any 
 village are authorized to regulate uniformly, by ordinances passed according to 
 law, the sale by auction of goods, wares and merchandise or other property within 
 their respective cities or villages, and thereby may prohibit under proper fines or 
 penalties any sales at auction therein by any person without license, and require 
 quarterly or monthly reports, verified by affidavit, to be made by every auctioneer 
 to the municipal clerk, and require sufficient bonds from the licensee for compli- 
 ance with any such ordinance, and require the payment of a license-fee of not less 
 than five nor more than one hundred dollars per year, in addition to any per- 
 centage they may fix, not exceeding two per centum upon the gross amount of 
 the sales made ; but they shall license every applicant who will comply with all 
 the provisions of this section and any ordinance lawfully passed hereunder ; and 
 they shall not require the payment of any duty in the cases excepted in section 
 fifteen hundred and eighty-five. 
 
 Chapter 105. 
 
 § 2309. Whenever goods shall be sold at public auction, and the auctioneer 
 shall at the time of sale enter in a sale-book a memorandum specifying the nature 
 and price of the propetry sold, the terms of the sale, the name of the purchaser, 
 and the name of the person for 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]. 
 
 WYOMING. — Laws of 1869, Chap. 18. 
 
 § I . It shall be the duty of the sheriff of each county of this territory to furnish 
 all licenses and collect all moneys for the same, as hereinafter provided ; and if 
 the sheriff of any county of this territory shall knowingly permit any person subject 
 to such license to conduct or carry on any branch of business, occupation or 
 pursuit without first obtaining such license, such sheriff shall be guilty of a misde- 
 meanor, and upon conviction thereof shall be punished as provided by law in the 
 case of similar offenses. 
 
474 APPENDIX. 
 
 § 2. Licenses shall be prepared by the county clerk, which shall be dehvered 
 to the sheriff of the county in which they shall be issued ; and each license shall 
 contain the name of the person and the character and place of the business to be 
 conducted under such license ; and it shall be the duty of the county clerk to afiSx 
 his official signature and the seal of the county to such license, which license shall 
 be countersigned by the county treasurer or his deputy before being issued by the 
 sheriff, and all moneys collected under and for such license shall be paid by the 
 sheriff into the county treasury within fifteen days from the date of such license. 
 
 § 6. No auctioneer, peddler, or other person or persons, company or corpora- 
 tion, shall be permitted to sell, vend, barter or retail, either at private sale or pub- 
 lic auction, any goods, wares or merchandise, without first having obtained a 
 license therefor as hereinbefore provided. 
 
 § 7. Any person found selling at auction or peddling without a license, as pro- 
 vided for in section six of this act, shall be deemed guilty of a misdemeanor; and 
 the person so actually vending or peddling is liable, whether he be the owner of 
 the goods or not, and upon conviction thereof shall forfeit and pay any sum not 
 exceeding one hundred nor less than twenty dollars into the county treasury where 
 such conviction shall be had, to be recovered by civil action in the name of the 
 county prosecuting the same, which said sum may be collected as provided by law 
 in criminal cases. 
 
 § 20. Peddlers, auctioneers and other persons, as provided in sections six and 
 seven of this act, shall pay a county license of five dollars per month. 
 
LIST OF FORMS AND PRECEDENTS. 
 
 I. AUTHORITY TO SELL. 
 
 PAGE 
 
 1 . Authority to sell goods . . 329 
 
 2. Authority to sell an estate ib. 
 
 3. Power of attorney to sell an estate ib. 
 
 4. Letter to vendor for instructions as to sale 330 
 
 11. ADVERTISEMENTS. 
 A. Sales by Auction. 
 
 1. A freehold property 330 
 
 2. Leaseholds ........... ib. 
 
 3. Furniture ............ 331 
 
 4. Announcement of withdrawal of lots ib. 
 
 III. PARTICULARS AND CATALOGUES. 
 A. Introductory. 
 
 1. Particulars of business premises 331 
 
 2. Freehold farm and leasehold cottages ...... ib. 
 
 3. Houses 332 
 
 4. Catalogue of furniture ib. 
 
 5. Horses 333 
 
 6. Cows and heifers . ib. 
 
 7. Stocks and shares ib. 
 
 B. Formal. 
 
 1 . Freehold house and garden 333 
 
 2. Freehold or copyhold house and garden ...... ib. 
 
 3. Freehold farm and leasehold cottages 334 
 
 4. Freehold house, bakehouse and mill ib. 
 
 5. Freehold estate ib. 
 
 6. Moiety of freehold ib. 
 
 7. Leasehold for lives 335 
 
 8. Life interest in freehold house il>- 
 
 9. Reversion in freeholds i^- 
 
 10. Freehold and copyhold estate Hi- 
 ll. Leasehold estate 33^ 
 
 12. Renfreserved upon lease for term of years ib. 
 
 13. Improved ground-rent i^- 
 
47^ LIST OF FORMS AND PRECEDENTS. 
 
 PAGE 
 
 14. Rent-charge in fee ib. 
 
 15. Rent-charge for life ib. 
 
 16. Standing timber 337 
 
 17. Imported goods ib. 
 
 18. Ship il), 
 
 19. Engravings ib. 
 
 20. Horses ............. z'^. 
 
 21. Cows and heifers ... 338 
 
 22. Shares in a company .......... ib. 
 
 23. Policy of life insurance ib. 
 
 24. Reversion in personalty ..... ... 338 
 
 25. The same. Another form ........ ib. 
 
 26. Contingent reversionary interest in personalty . 339 
 
 IV. CONDITIONS. 
 A. Of Sale of Real Estate by Auction. 
 
 1. Freehold or copyhold estate in one lot .... . . 339 
 
 2. Leasehold in one lot . . . .... 342 
 
 3. Freeholds, copyholds, and leaseholds in lots ... . 343 
 
 4. Where sale by the Court ......... 346 
 
 5. Standing timber ........... 347 
 
 6. Miscellaneous .... 349 
 
 B. Of Letting by Auction 
 
 C. Of Sale of Personal Property by Auction. 
 
 352 
 
 I. Goods generally ........... 356 
 
 2. The same. Another form . 
 
 3- Ship . . 
 
 4. Horses and carriages (Tattersall's) . 
 
 5. The same (Aldridge's) ..... 
 
 6. Stocks and shares ...... 
 
 7. Policy of insurance ; life or reversionary interest 
 
 8. Commercial sale. Goods generally . 
 
 9. The same. Fallen timber .... 
 10. The same. Wool . . ... 
 
 ib. 
 357 
 358 
 359 
 360 
 362 
 363 
 364 
 365 
 
 II. The same. Tea ........... ib. 
 
 V. RESERVED BIDDINGS. 
 Appointment of person to bid for vendor ... . 366 
 
 VI. AGREEMENTS. 
 
 1. On a sale of real estate by auction; to be annexed to the particulars 
 
 and conditions ... ... ... 366 
 
 2. Another form; for endorsement on the particulars and conditions . 367 
 
 3. Another form; to be annexed to or endorsed on the particulars and 
 
 conditions ......... . ib. 
 
LIST OF FORMS AND PRECEDENTS. 47/ 
 
 PAGE 
 
 4. On a letting by auction; to be annexed to or endorsed on the particu- 
 
 lars and conditions 368 
 
 5. On a sale by private contract, subject to conditions prepared for an 
 
 auction-sale ; to be annexed to or endorsed on the particulars and 
 
 conditions ........... ih. 
 
 6. Another form; not referring to the conditions . . . . , ib. 
 
 7. Another form . ib. 
 
 8. On sale of freehold by private contract without special conditions . . 370 
 
 9. On sale of leasehold by private contract without special conditions . 371 
 
 10. To grant a lease for a term of years 372 
 
 1 1 . Another form ........... ib. 
 
 12. To let from year to year 374 
 
 13. To let a house or apartments for a less term than a year . . . ib. 
 
 14. For a building lease ... 375 
 
 15. For a loan on mortgage ib. 
 
 16. For a mortgage 376 
 
 17. To secure future advances . ........ ib. 
 
 18. Memorandum of deposit of deeds by way of equitable mortgage . . ib. 
 
 19. Memorandum on purchaser being let into possession before acceptance 
 
 of title ib. 
 
 20. Agreement to purchase ship 377 
 
 21. Agreement for putting off a business ...... ib. 
 
 VII. AUCTIONEER'S COMMISSION, &c. 
 
 1. Scale of fees 378 
 
 2. Scale of charges issued by the committee of the Estate Exchange, and 
 
 approved by the Surveyors' Association and the Select Society of 
 
 Auctioneers . ......... 380 
 
 3. Costs and fees payable under the Bankruptcy Act, 1 869 . . 381 
 
 4. Fees for appraisements and sales of goods taken in execution under 
 
 County Court process ......... 382 
 
 5. Costs and charges on distresses for small rates or rents . . . 383 
 
 VIII. SALES BY THE COURT. 
 
 1. Affidavit as to proposed mode of lotting and time and place of sale . 383 
 
 2. Affidavit of fitness of proposed auctioneer 384 
 
 3. Affidavit as to valuation and proposed reserved bidding . . . ib. 
 
 4. Chief clerk's directions to auctioneer as to sale in several lots, where 
 
 there are reserved biddings ib. 
 
 5. Note of the reserved bidding ........ 385 
 
 6. Bidding paper on a sale in several lots ib. 
 
 7. Affidavit of result of sale in several lots ...... 386 
 
 8. Chief clerk's certificate of result of sale in several lots . . . 3S7 
 
 IX. DISTRESSES FOR RENT. 
 
 1 . Warrant to distrain in a house 388 
 
 2. Warrant to distrain on a farm ........ 389 
 
 3. Inventory ............ ib. 
 
 4. Notice of distress of goods ib. 
 
478 
 
 LIST OF FORMS AND PRECEDENTS. 
 
 PAGE 
 
 5. Notice of distress of growing crops 390 
 
 6. Appraisement ........... il>. 
 
 7. Tenant's consent to landlord or bailiff continuing in possession for more 
 
 than five days .......... ib. 
 
 8. Notice to sheriff, under 8 Ann. c. 14, 3. I, of rent being due from exe- 
 
 cution debtor .......... 391 
 
 9. Notice to high bailiff of county court, under 19 and 20 Vict, c. 108, 
 
 »• 75 ib. 
 
 X. MISCELLANEOUS FORMS. 
 
 I. 
 2. 
 3- 
 
 4- 
 5- 
 6. 
 
 7- 
 8. 
 
 9- 
 10. 
 II. 
 12. 
 
 ^Z- 
 14- 
 15- 
 
 Bond for faithful service of clerk . . . . . . . .391 
 
 Bought and sold notes 392 
 
 393 
 ib. 
 
 Warranty of horse 
 
 Delivery order ....... 
 
 Dock warrant ...... 
 
 Notice that interest will be claimed upon a debt 
 Notice to pay rent to mortgagee . 
 Notice of equitable mortgage by deposit . 
 Notice to repair ...... 
 
 Notice to quit, by landlord to tenant . 
 
 Notice to quit, by tenant to landlord 
 
 Notice of determination of a lease for twenty-one years at the expira- 
 tion of the first seven years .... 
 Notice of tenant's intention to remove building 
 Notice of landlord's election to purchase building 
 Notice of appointment of referee 396 
 
 394 
 ib. 
 ib. 
 ib. 
 
 395 
 
 a. 
 
 ib. 
 ib. 
 
INDEX. 
 
 [The references are to the starred pages.] 
 
 Abstract of Title, 
 
 obligation of vendor to deliver, 94, 97. 
 
 preparation of, 85 n. 
 
 as to fixing time for delivery of, 98. 
 
 expense of verifying, 99, 100. 
 Acceptance, 
 
 of goods under the Statute of Frauds, 160 el seq. 
 
 offer revocable until, 30. 
 
 Accident to Goods, 
 
 where the property in the goods has passed to the purchaser, 184, 186. 
 
 M'here the purchaser has a right, and has elected, to rescind the contract, 190. 
 
 where the goods are warranted for a limited period, 108, 204. 
 
 in the custody of an auctioneer, 231. 
 Accident to Title-Deeds, 105. 
 Acquiescence, 
 
 how far evidence of ratification, 22 and n. /. 
 
 Action, 
 
 for disturbance of auction sale, 1 14 n. i. 
 by vendor 
 
 for specific performance, 196, 201. 
 
 for purchase-money, 195, 199. 
 
 for damages, 195, 196, 199, 200. 
 by purchaser 
 
 for specific performance, 203, 204. 
 
 for damages, 202 el seq. 
 by auctioneer, 25, 113, 210, 211. 
 by auctioneer for deposit, 179 n. q. 
 by agents generally, 207 et seq. 
 parties to, 206. 
 
 See Auctioneek — Commission — Purchaser — Vendor. 
 
 Adjournment, 
 
 may be made by one not licensed, 9 n. 2. 
 
 of execution or judicial sale, 115 n. a., 246 n. b., 251 n./ 
 
 Administrator's Sale, 
 
 equitable interest of purchaser at, 2 n. 2. 
 
 right of administrator to purchase at, 4 n. 2. 
 
 variation of terms at, by announcement of auctioneer, 89 n. b. 
 
 no warranty implied in, 195 and n. h. 
 
 Adverse Possession, 
 
 how far judicial sale affected by, 237 n. b. 
 Advertisement, 
 
 of sale, generally, 44 n. 
 
 description in, binds both vendor and purchaser, 45 n. 2. 
 
 expenses of, where auctioneer obtains discount, 221 r\. h. 
 
 legal effect of, 26 n.f. 
 
 vendor must carry out statements of, 51 n. u. 
 
 misstatement of quantity in, 64 et seq. 
 
 misstatements of situation of property in, 68 el seq. 
 
480 INDEX. 
 
 Advertisement — continued. 
 
 not annexed to memorandum cannot be referred to, 159 and n. I. 
 
 by the Court, 241. 
 
 under the Innkeepers Act (1878), 284. 
 
 under the Pawnbrokers Act (1872), 283. 
 Advowson, 
 
 particulars of sale of, 56. 
 what title must be shown to, 95 n. b. 
 Agent, 
 
 duty of auctioneer as, 20 et seq. 
 
 ratification of an authorized act of, 22 and n. 2. 
 
 when allowed to exercise his own discretion, 23 n. q. 
 
 general duties of, 24, 26, 232. 
 
 for opposing parties, 22 n. i>, 157 n. 
 
 with ambiguous instructions, 23. 
 
 auctioneer liable as vendor, unless he discloses his principal, 26. 
 
 delegation of authority by, 29. 
 
 cannot bind principal after revocation of authority, 30 n. i. 
 
 fraud of, 34. 
 
 one party cannot sign as, for other, 157. 
 
 signature by, 157. 
 
 revocation of authority by change of circumstances, 31. 
 
 may sue and be sued as principal, when, 33, 209 et seq. 
 
 bankruptcy of, 32. 
 
 authority to bind principal by warranty, 119. 
 
 buying at higher than limited price buys for himself, 127 n. i. 
 
 authorized to sell, cannot pledge, 172 and n._/". 
 
 renunciation of agency by, 32. 
 
 rights of agent whose authority withdrawn, 32. 
 
 ratification of unauthorized acts, ''iT,. 
 
 agent warrants his authority, 33 n. 1. 
 
 liability of, 
 
 for exceeding his authority, 34. 
 
 principal bound by agent's acts within apparent authority, 34 n. I. 
 
 for acts of those under him, 37. 
 
 contracts for reasonable skill and ordinary diligence, 42 n. /. 
 
 for negligence and incompetence, 35. 
 
 to account, 232. 
 
 for goods entrusted to him for sale, 231. 
 
 for acts of his principal, 210. 
 
 upon implied \\'arranty of authority, 33. 
 may set upy«J tertii, when, 35. 
 entitled to indemnity from his principal, 35. 
 not giving notice of contract to principal, effect of, 36. 
 See Auctioneer — Corporation — Infant — Purchaser, j 
 Agistment, 147, 267. 
 Agreement, 
 
 bid or offer revocable until accepted, 30. 
 
 mutual assent essential to, 30 n. b. 
 
 when avoided for misdescription of property, 52. 
 
 may be gathered from several documents, 157-160. 
 
 but papers must refer to each other, 157, 158 and n. I. 
 
 essentials of, 150. 
 
 the parties, 150, 151. 
 
 the promise, 151. 
 
 the consideration, 151. 
 
 the consent, 152. 
 what is, within Stamp Act (1870), 166 et seq. 
 effect of want of stamp on, 170. 
 not to bid, 121. 
 See Contract — Knock-out Sales — Signature. 
 
INDEX. 481 
 
 Alabama, 
 
 statutes regulating auctions in, 404. 
 
 Allotment, 
 
 conditions of sale as to, 97. 
 
 Ambiguity, 
 
 in agent's instructions, 23. 
 
 in particulars of sale, 53, 55, 115. 
 
 when fatal to contract, 53. 
 
 "Annual Fruit" 
 of trees, 67. 
 
 Annuity, 
 
 condition of sale of, 105. 
 
 Appeal 
 
 from order of sale, how far purchaser affected by, 237 n. b. 
 
 Apportionment, 
 of rent, 94. 
 of rent charge, ib. 
 of rent service, ib. 
 of liabilities of leasehold, ib. 
 
 Appraisement, 
 
 when essential preliminary to sheriff's sale, 38 n. 1. 
 generally, 40 el seq. 
 under County Court process, 43, 251. 
 under distress for rent, 279, 280. 
 stamp, M'hen necessary, 39, 40, 251, 280. 
 charges for, 41-43, 280. 
 See Valuation. 
 
 Appraiser, 
 
 must have license, 38. 
 
 licensed auctioneer may act as, 14, 38. 
 
 licensed, may act as house agent, 38. 
 
 unlicensed, cannot sue for work and labor, 39. 
 
 duties of, 41, 42. 
 
 remuneration of, 41-43. 
 
 Arbitration, 
 
 conditions of sale as to, 108. 
 
 Arizona, 
 
 statutes for license of auctioneers in, 404. 
 
 Arkansas, 
 
 statutes regulating auctioneers in, 405. 
 
 Articles of Roup, 83 n. 
 
 Assignee. — See Ba,nkkuptcy. 
 
 Attested Copies 
 
 of deeds, expense of, 106. 
 
 Auction, 
 
 definition of, i. 
 
 different forms of, 2, 3, 7 n. I, 9. 
 
 mode of conducting, 2, 1 14. 
 
 price brought at, evidence of value, 4 n. i. 
 
 advantages of, 4, 5. 
 
 when obligatory, 4. 
 
 exciting of competition essential to, 8 n. I. 
 
 simple power to sell does not authorize sale by, 27 n. k. 
 
 action for disturbances of, 114 n. t. 
 
482 INDEX. 
 
 Auction — continued. 
 
 sale by, is within Statute of Frauds, 143. 
 except sales by the Court, 143, 244. 
 effect of agreements to prevent competition at, 121. 
 See Dutch Auction — Mock Auction. 
 
 Auction Duty, 
 
 now abolished, 5, 6. 
 
 in different states and territories, 404 et seq. 
 
 Acts, in relation to puffers, 135. 
 Auctioneer, 
 
 definition of, I, 7. 
 
 difference between broker and, 18 n. w. 
 
 whether, is trader within Bankruptcy Act, I n. b. 
 
 who may be, 17. 
 
 relations of, to Revenue, 7-19. 
 
 remedy upon bonds of, 9 n. I. 
 
 not estopped to show that he has no license, 19 n. I. 
 
 may sell his own property by auction, 20, 128. 
 
 when agent for vendor, 20. 
 
 when for purchaser, 20. 
 
 what gives auctioneer authority to sell, 21 and n. I. 
 
 authority of, to receive purchase-money, 24 n. 2, 26. 
 
 may sue for goods entrusted to him, 25. 
 
 should receive only cash for sales, 27, 28. 
 
 right of, to purchase for himself, 28. 
 
 memorandum by, binds both parties, 20, 154. 
 exception, 26 n., 157. 
 
 authority of, to sell, how conferred, 20 et seq. 
 
 authority of, to bind purchaser, how conferred, 23. 
 
 may be superseded by previous arrangement, 23. 
 
 extent of agency of, on sales of estates, 23. 
 on sales of goods, 23. 
 
 acting without authority, effect of, 32, 33, 210. 
 
 sale by private contract by, 23 n., 27, 80, 126, I2g. 
 
 is general agent, 24. 
 
 authority of, to pay off distress, 24, 113. 
 
 property of, in goods entrusted to him for sale, 25, 113. 
 
 when justified in disregarding instructions, 25, 141. 
 
 delegation of authority by, 29, 37, 114. 
 
 right of, to bind vendor by warranty, 28, 29, 119. 
 
 how far allowed to set up right of a third party against his employer, 34 
 and n. m. 
 
 liable to rightful owner of goods sold by him, 35. 
 
 liable to his employer for ignorance or negligence, 35, 36 n. t and^. 
 
 how far he may vary statements in particulars and catalogues, 44 et seq. 
 
 liable for his negligence in framing particulars, 79 n. I. 
 
 must see that terms of sale are complied with, 83 n. i. 
 
 should not prepare conditions of sale of real estate, 84. 
 
 cautioned against making open contract, 84. 
 
 right to vary terms of sale by announcement, 89 n. w and n. b. 
 
 duties of, at sale, 1 11 . 
 
 authority of, to receive proceeds of sale, 26, 27. 
 
 must not restrict competition, 114 and n. I. 
 
 duty of, to accept biddings, 122, 141. 
 
 bidding by, 125, 140 n. 
 
 purchase by, 125. 
 
 liability of, to highest bidder, 26 n., 126. 
 
 verbal declarations of, at time of sale, 25, 44 et seq. 
 
 warranty by, 28, 119, 130. 
 
 may contract in his own name, when, 25. 
 
INDEX. 483 
 
 Auctioneer — continued, 
 
 may not give credit to purchaser, 27, 175. 
 
 may take check, when, 173. 
 
 entry by, 127. 
 
 should disclose principal's name, 129. 
 
 disclosure of the reserved price by, 141. 
 
 payment of deposit to, 128, 171 ct seq. 
 
 authority of, to sign memorandum of sale, 154 and n. k. 
 
 signature by clerk of, 154, 155 and n. i. 
 
 cannot bind purchaser where himself a vendor, 157 and n. I. 
 
 authorized to receive what in payment, 172 et seq. 
 
 to whom and how far liable for deposit, 175 et seq. 
 
 liability of, to account, 232, 233. 
 
 when liable as principal, 26, 208. 
 
 remedies of, by way of action, Ch. x., 184 et seq. 
 
 right of, to interplead, 212. 
 
 when liable for unpaid purchase-money, 234, 235. 
 
 right of, to sue, on sale of goods, 25, 26 n., 211. 
 
 on sale of land, 25, 26 n. 
 cannot sue where he has signed as agent for buyer, 157. 
 liability of, where principal has no title, 35. 
 right of, to commission, 219 et seq. 
 
 to indemnity, 35, 219. 
 responsibility of, for property, 231. 
 
 for sale proceeds, 232 et seq. 
 on agreement to procure insurance, 231 and n. d, 
 right of owner to recover goods from, 232. 
 negligence or incompetence of, 35, 37, 231. 
 appointment of, on sales by the Court, 240, 241. 
 often employed as baihff to distrain, 252. 
 must not draw agreement under seal for reward, 366 n. 
 
 See Agent — Auctioneer's License — Authority to Sell — Con- 
 tract — Deposit — Remuneration. 
 
 Auctioneer's License, 
 
 statutes regulating, 397, 404. 
 
 necessity for, 7, 8. 
 
 duty on, 8. 
 
 expiration of, 8. 
 
 renewal of, 8, 13. 
 
 want of, effect on sale, 9. 
 
 on auctioneer's right to commission, 9. 
 exemptions from, 10-12, 241. 
 by whom granted, 12. 
 to whom and how to apply for, 13. 
 how far personal, 14. 
 includes appraiser's and house agent's licenses, 14. 
 
 but not hawker's, 16. 
 
 nor broker's certificate, 17. 
 sale of excisable goods, how far authorized by, 14-16. 
 as to production of, 18. 
 
 at time of sale, 18, 113. 
 Authority to Sell, 
 
 how conferred, 20 et seq. 
 should be in writing, 22. 
 
 by auction, does not authorize sale by private contract, 27. 
 delegation of, by auctioneer, 29. 
 revocability of, 30 et seq. 
 See Auctioneer. 
 
 Award Stamp, 
 
 when necessary, 41 n. 
 
484 INDEX. 
 
 Bailiff. See Distress for Rent. 
 
 Bankruptcy, 
 
 whether auctioneer considered trader, 1. 
 
 assignees in, should sell by auction, 4 n. 2. 
 
 act of, what is, 124. 
 
 of principal, 31. 
 
 of agent, 31. 
 
 how far, revokes agent's authority, 31, 32. 
 
 of auctioneer, 229. 
 
 of purchaser, 109, 201. 
 
 trustee in, acting as auctioneer, 227 n. 
 
 bidding by person served with petition in, 121 n. 
 
 purchase by trustee in, 125 n. 
 
 effect of, on contract, 124, 189. 
 
 auctioneer's remuneration for sale under, 220. 
 Barkers, 3 n. c. 
 " Beer House," 62. 
 "Beer Shop," 61. 
 Bidding Papers, 120, 243, 244. 
 
 Biddings, 
 
 may be made by letter, 2 n. I. 
 
 may be withdrawn before acceptance, 3a. 
 
 bidders bound by public notice given by auctioneer, 45 n. 2. 
 
 made on other than specified terms of sale, need not be noticed, 83 n. i. 
 
 made under mistake, may be retracted, 87 n. k. 
 
 made for less sum than named in terms, may be disregarded, 90 n. 1. 
 
 conditions of sale as to, go, 132. 
 
 may be reserved, 132 n. c. 
 
 reservation of, must be express, 136. 
 
 time for, may be reasonably limited, 119 n. I. 
 
 how made, 119, 120. 
 
 as to writing down, 120. 
 
 sale avoided by contracts to prevent competition, 121. 
 
 duty of auctioneer to accept, 122. 
 
 of irresponsible person may be disregarded, 122 n. i, 123 n. 1. 
 
 one who allows his name to be recorded as bidder bound, 126 n. 3. 
 
 retraction of, 30, 126. 
 
 by auctioneer, 125, 140 n.^. 
 
 by vendor or his agent, 122, 131 et seq. 
 
 by bankrupt, 124. 
 
 by person served with petition in bankruptcy, 121 n. 
 
 by infant, 122. 
 
 by married woman, 1 23. 
 
 by drunkard, 123. 
 
 by lunatic, 123, 
 
 by trustee, 125. 
 
 by pawnbroker, 2S3. 
 
 by person not intending to pay, 121. 
 
 by unauthorized puffer, 120 n., 245. 
 
 imaginary, 13S. 
 
 no private sij,'nals between bidder and auctioneer, 142 n. I, 
 
 vendor bound by auctioneer's acceptance of, 194 and n. 2. 
 
 unfairness in, 120. 
 
 at sales by the Court, 244-246. 
 
 reopening of, 248, 249. 
 See Puffer — Reserved Bidding. 
 Bill of Exchange, 
 
 as to auctioneer taking, 27, 172. 
 
INDEX. 485 
 
 Board, 
 
 exhibition of, by auctioneer during sale, 19. 
 Bonds 
 
 of auctioneers, g n. i. 
 Boundaries, 
 
 mention of, in particulars, 49. 
 
 Broker, 
 
 who may act as, 17. 
 
 difference between auctioneer and, 18 n. 
 
 agent for both parties, 154 n. 
 Building Lease, 375. 
 By-bidding. See Puffer — Reserved Bidding. 
 
 California, 
 
 statutes of, regulating auctions and auctioneers, 406. 
 Carrier, 
 
 effect of delivery to, 162. 
 
 goods in custody of, exempt from distress for rent, 266. 
 Cash, 
 
 meaning of condition that sale shall be for, 91 n. I. 
 Catalogue, 
 
 what is, 44. 
 
 subject to same rules as particulars, 46, 58. 
 
 what description, amounts to warranty, 58 and n. I. 
 
 at sale of furniture, need not be furnished, 88 n. u. 
 
 of sales under Pawnbrokers Act (1872), 282, 283. 
 See Particulars. 
 Champerty. See Adverse Possession. 
 Check, 
 
 authority of auctioneer to take, 28 n. I, 172, 173. 
 Choses in Action, 
 
 whether contract for sale of, within the Statute of Frauds, 149. 
 Clearance of Goods, 
 
 condition of sale as to, 105. 
 
 " Clear Yearly Rent," 74. 
 Clerk, 
 
 Auctioneer's, license of, 14. 
 
 authority of, 29, 144. 
 signature by, 29, 114, 154 et seq. 
 Commercial Sales, 5. 
 Commission. See Remuneration. 
 
 Commissioners, 
 
 sale by. See Sale by the Court. 
 
 Company, 
 
 sale to, by auctioneer who is shareholder in, 28. 
 Compensation, 
 
 for misdescription of property sold, 52. 
 
 where vendor can only show title to part of property, 70. 
 
 where property sold by erroneous map, 80 n. /. 
 
 for delay in tnaking title by vendor, 95 n. I . 
 
 conditions of sale as to, 106. 
 See Misdescription. 
 
 Competition, 
 
 effect of contracts to prevent, at auction, 121. 
 fair agreements among bidders sustained, 121 n. 2. 
 
486 INDEX. 
 
 Completion of Purchase, 
 
 conditions of sale as to, 103. 
 Concealment, 
 
 effect of, 50, 51. 
 
 of faults in goods, 60. 
 
 of an incumbrance, 76 n. 
 
 of want of title, 35. 
 
 when, amounts to fraud, 117 and n. i. 
 See Misdescription — Notice. 
 
 Conditions of Sale, 
 
 general remarks on, 83. 
 
 bid made upon, other than specified, need not be noticed, 83 n. I. 
 
 auctioneer's authority to prepare, 24. 
 
 of real estate, should not be drawn by auctioneer, 84. 
 
 of judicial sale, discretion of officer to prescribe, 84 n. I. 
 
 commonly prescribed by court, 85 n. I. 
 common, when sufficient, 85. 
 special, when necessary, 85. 
 
 should be sparingly used, 85. 
 rules to be observed in drawing, 86. 
 in sales by trustees or for payment of debts, 86 n. £■. 
 how far unwarranted terms disregarded, 86 n. g: 
 as to stating defect in title in, 87, 95. 
 how far construed against vendor, 87. 
 
 how far purchaser may take advantage of omission of special, 88. 
 should be annexed to particulars, 88 n. 
 circulation of, 88, 115. 
 should be read out at sale, 88, 115. 
 mere reference to, when sufficient, 89, 1 15. 
 must be embodied in contract, 89. 
 
 not annexed to memorandum, cannot be referred to, 159. 
 how embodied in contract, 89. 
 alterations in, 89, 115. 
 
 how affected by previous arrangement, 89 n. 
 classification of, 90. 
 relating to biddings, 90, 132. 
 
 reserve, 90, 136. 
 
 deposit, 91, 109. 
 
 signing contract, 91. 
 
 quantum of interest sold, 91. 
 
 title, 94. 
 
 time of making objections, 98. 
 
 when time of essence of, 103. 
 
 preparation of deed, 103. 
 
 completion of purchase, 103. 
 
 clearance of goods, 105 and n.y. 
 
 misdescriptions, 65, 106. 
 
 arbitration, 108. 
 
 breach of warranty, 108. 
 
 forfeiture of deposit and resale, 108. 
 on sale by the Court, 240, 243. 
 
 Connecticut, 
 
 statutes of, regulating auctions, 409. 
 
 Consent, Consideration, see Agreement. 
 
 Constable, 
 
 sale by. See Sale on Execution. 
 
 Contract, 
 
 of corporation need not be under seal, 22 n. m. 
 mutual assent essential to, 30 n. b. 
 
INDEX. 487 
 
 Contract — continued. 
 
 when avoided for misdescription of property, 52. 
 
 not avoided tiirough auctioneer being unlicensed, 9. 
 
 condition of sale as to signing, 91. 
 
 auctioneer must make binding, 36. 
 
 of sale, when time of essence of, 103. 
 
 for arbitration, effect of, 108 and n. k. 
 
 to prevent completion at auction, effect of, 121. 
 
 by person under incapacity, 122 et seq, 
 
 necessary formalities of, 143 et seq. 
 
 practice as to making, 127, 128. 
 
 separate, arises in respect of each lot sold at auction, 148. 
 
 when complete, 184. 
 
 auctioneer cannot rescind or vary, 28. 
 
 time, when of essence of, 103. 
 
 parol, variation of, 1 56. 
 
 may be rescinded by parol, 166. 
 
 how proved, 192. 
 
 how far parol evidence admissible to prove, 44-47. 
 
 right of one party to rescind. See FRAUD — MlSDESCl^iPTlON. 
 See Agreement — Signature. 
 Conveyance, 
 
 duty of purchaser to tender, 103, 194. 
 
 expense of preparing, 103. 
 
 expense of execution of, 103, 106. 
 
 condition as to, 103, 
 Copyholds, 
 
 description of, in particulars, 71, 79. 
 
 enfranchised, 96. 
 Copies 
 
 of deeds, expense of, 106. 
 Corporation, 
 
 agent of, how appointed, 22. 
 Costs, 
 
 in interpleader, 217. 
 
 of distress, 218. 
 
 COTENANTS, 
 
 quantum of interest in sale among themselves, 91 n. 2. 
 County Court, 
 
 sale by order of, 250. 
 sale under process of, 4, 250, 251. 
 appraisement under process of, 43. 
 auctioneer's remuneration for sale under process of, 219. 
 Covenant, 
 
 in lease, statement of breach of, in particulars, 73, 77. 
 mention of onerous, in particulars, 77. 
 " common and usual," 78, 353 n., 373 n. 
 when presumed to have been observed, 102. 
 in underlease, 102. 
 for production of deeds, purchaser's right to, 105. 
 
 expense of 105. 
 against permitting auction, iii. 
 Credit, 
 
 auctioneer may not give, 27. 
 Crops, 
 
 lessee's emblements do not pass to purchaser under mortgage, 92 n. i. 
 conditions of sale as to, 91, 93. 
 when goods, 146. 
 
 how treated in Bills of Sale Act (1878), 147 n. 
 See Distress. 
 
488 INDEX. 
 
 Crows Grant, 
 
 condition of sale as to property held under, 97. 
 Custom, 
 
 parol evidence to subject contract to, 165. 
 "Customary Rent," 80. 
 
 Dakotah, 
 
 statutes of, regulating auctions, 410. 
 
 Damages, 
 
 for breach of warranty of authority, 33. 
 
 for breach of warranty generally, 206. 
 
 for misdescription by auctioneer, 36. 
 
 for loss of bargain, 33. 
 
 nominal, when 'recoverable by principal against agent, 36. 
 
 stipulated, condition of sale as to, no. 
 See Action. 
 Death, 
 
 of principal, 32. 
 
 of agent, 32. 
 
 revokes authority of agent, 32. 
 
 of annuitant, 105. 
 
 of party to a contract, 189. 
 Deceit — See Fraud. 
 Deed, 
 
 in England to be prepared and paid for by purchaser, 103. 
 
 in the United States, by vendor, 103 n. 0. 
 
 prior stipulations merged in terms of, 202 and n. i. 
 
 Delaware, 
 
 statutes of, regulating auctions, 411. 
 Delivery, 
 
 vendor's hen upon goods determined by, 187. 
 
 conditional, does not determine vendor's lien, 187 n. 0. 
 
 right of stoppage in Iransiiu, 187, 188. 
 Deposit, 
 
 to whom payable, 91. 
 
 right of mortgagee selling under power to require, gi n.j. 
 
 returned to purchaser if sale annulled, 109 n. t. 
 
 what is, usual amount of, to whom paid, 171. 
 
 auctioneer's authority to receive, 128, 171. 
 
 may be required at forced sale, 171 n. I. 
 
 payment of, to solicitor, 171, 175, 176. 
 
 how to be paid, 172, 173. 
 
 failure of purchaser to pay, 129, 175. 
 
 duties of depositary as to, 175, 176. 
 
 investment of, 91, 178. 
 
 interest on, 108, 109, 180. 
 
 payment over of, 177. 
 
 when vendor entitled to, 109, 178. 
 
 when vendor must biing into account, 196. 
 
 right of purchaser to, 109, 180. 
 
 purchaser's lien for, 182. 
 
 voluntary forfeiture of by purchaser, 171 n., 196. 
 
 payment into Court of, 147, 182. 
 
 loss of, through insolvency of agent, 1 82. 
 
 receipt for, when statement of price, 152. 
 
 when evidence of contract, 158. 
 
 on sales by the Court, 240-243, 247. 
 
 condition of sale as to, 91, 108, 109. 
 Description — i'^s JIisdescription — Particulars of Sale. 
 
■INDEX. 489 
 
 Distress (for Rent), 
 definition of, 252. 
 
 auctioneer often bailiff to levy, 252. 
 warrant of, how far indemnity to bailiff, 253, 259, 260. 
 
 by whom to be signed, 258. 
 conditions precedent to, 253. 
 by executors and administrators, 255. 
 husband in right of wife, 256. 
 joint tenants, 256. 
 tenants in common, 257. 
 mortgagee, 255. 
 mortgagor, 254. 
 tenant from year to year, 254. 
 tenant sub-letting, 254. 
 right of, against executors and administrators, 255. 
 after notice to quit, 257. 
 after expiration of term, 257, 258. 
 things privilegecl (absolutely or sub modo) from, 252, 265, 273. 
 things in actual use, 265. 
 
 things protected for sake of trade, 24, 112, 266, 267. 
 things in custody of the law, 267, 268. 
 goods of a bankrupt, 268, 274. 
 fixtures, 268. 
 
 things that cannot be restored in the same plight, 268. 
 corn and growing crops, 267, 272, 273, 277. 
 animals y^ris naturir, 269. 
 goods of lodgers, 269-271. 
 goods of stranger, when, 441 n. 
 beasts of the plough, 271. 
 sheep, 271. 
 
 implements of trade, 271. 
 goods of ambassadors, 272. 
 gas meters, 272. 
 railway rolling stock, 272. 
 proceedings in, 
 
 at what hour to be taken, 260. 
 
 where, 260, 264. 
 
 entry upon premises, how to be made, 264, 265. 
 
 forcible re-entry, when justified, 265 n. 
 
 seizure, 276. 
 
 impounding, 277. 
 
 notice, 278. 
 
 inventory, 278. 
 
 removal of goods seized, 40, 277, 279, 280. 
 
 where tenant consents to delay, 279. 
 sale, 252, 278, 280. 
 tender of rent due under, 274, 275. 
 fraudulent removal to avoid, 260-264. 
 replevin of goods taken under, 278. 
 surplus proceeds of sale under, 280. 
 remuneration of auctioneer for, 219. 
 costs of, 281, 282. 
 See Appraisement. 
 
 Drunkards, 
 
 contracts by, 123. 
 
 Duress, 120. 
 
 Dutch AucnoN, 3. 
 
 " Earnest," 
 
 what is, 163. 
 
490 INDEX. 
 
 Easement, 
 
 distinguished from license, 78 n. 
 
 passes by grant of tenement, 76. 
 
 mention of, in particulars, 78 n. 
 
 effect of reference to street in description of property sold, 81, 82. 
 
 condition of sale as to, 93. 
 
 no warranty implied in Louisiana against apparent, 95 n. I. 
 Encroach m ent, 
 
 condition of sale as to, 97. 
 Embezzlement, 
 
 of proceeds of sales by auctioneer, 219 and n. a. 
 Emblement. See Crops. 
 Enfranchised Copyholds, 
 
 condition of sale as to, 96. 
 
 Entry (of Sale), 
 
 by auctioneer, 127. 
 Equity, 
 
 purchase of trust property by trustee avoided in, 4 n. 2. 
 
 specific performance in, see Specific Perform.vnces. 
 
 will annul bargain made under mistake, 47 n. n. 
 
 See JIlSDESCRIPTIUN. 
 
 jurisdiction of, to order sale of property, 237 and n. b. 
 See Sale by the Ctn^RT. 
 Estate Agent, 
 
 instructed as to price may not sign open contract, 21 n. 
 
 remuneration of, where several employed, 226. 
 Estoppel, 
 
 of grantor to deny existence of way referred to by him, 82 n. i. 
 
 Evidence, 
 
 price brought at auction is, of value, 4 n. I. 
 
 ■written agreement not to be varied by parol, 45. 
 
 of title, 95, 99, loi. 
 
 of \\'arranty, 1 18. 
 See Contract — • Parol E^tdence — Recitals. 
 Exchange, 
 
 condition of sale as to land taken in, 97. 
 
 Excisable Goods, 14-16. 
 Execution of Document, 
 
 when not required to be proved, lOI. 
 
 Execution S.ale. — See Sale on Execution. 
 
 Executors, 
 
 may sell by auction, 4 n. 2. 
 
 right of, to purchase at their own sale, 4 n. 2. 
 Extent, 
 
 what is, 40 n. 
 
 appraisement of goods seized under, 40. 
 
 Extra Charges 
 
 of auctioneer, 221. 
 
 False Representations. — See Fraud. 
 
 Fixtures, 
 
 what are, 63. 
 
 purpose of annexation important, 63 n. ^, 
 
 when within Bills of Sale Act (1S7S), 63 n. 
 
INDEX. 49 X 
 
 Fixtures — continued. 
 
 are not " goods and chattels " within Bankruptcy Act, 63 n. 
 
 tenants', when goods, 146, 149. 
 
 auctioneer's possession of, 27, 113. 
 
 separate sale of, at valuation, 41 . 
 
 exempt from distress, 268. 
 
 condition of sale as to, 92, 93. 
 Florida, 
 
 statutes of, regulating auctions, 413. 
 Forfeiture, 
 
 by vendor, previous to sale, 193. 
 See Deposit. 
 
 Forms. — See list on page 475. 
 
 Fraud, 
 
 of agent, 34. 
 
 contract to commit, not binding, 36. 
 
 in particulars of sale, effect of, 53 et seq. 
 
 effect of false representations, 55 n. 1/. 
 
 mere puffs do not constitute, 57. 
 
 when description amounts to warranty, 58 and n. i. 
 
 false representations as to situation of property sold, 68 et seq. 
 
 effect of previous false representations, 107 n. e. 
 
 avoidance of contract for false representations, 190 and n. <.. 
 
 one party to, cannot recover against other, 120, 
 
 in misdescribing property, 50. 
 
 in concealing incumbrances upon property sold, 76 et seq. 
 
 upon bidders, 120. 
 
 of bidder not intending to pay, 121. 
 
 by infant, 123. 
 
 effect of, upon contract, 189, 192. 
 
 when not ground for rescission, 191. 
 
 not presumed, 51 n. 
 
 when concealment amounts to, 117 n. i. 
 
 on sale by the Court, 249. 
 Frauds, Statute of, 
 
 agent cannot make memorandum under, after authority revoked, 31 n. i. 
 
 liability of auctioneer for not maldng memorandum under, 36 and n. y. 
 
 memorandum must describe property, price, terms, and parties, 44 et seq. 
 
 extends to sales by auction, 143. 
 
 sheriff's return or execution sale sufficient memorandum, 143 n. i. 
 
 duty of auctioneer to comply with, 144. 
 
 requirements of, on sale of land, 144. 
 on sale of goods, 144. 
 
 no presumption that auctioneer has made proper memorandum, 144 n. e. 
 
 general distinction between 4th and 17th sections of, 145. 
 
 meaning of lands, &c., within 4th section, 146. 
 goods, &c., within 17th section, 146. 
 
 goods sold for less than £10 not within, 148. 
 
 as to stocks, shares, &c., .148, 149. 
 
 essentials of memorandum under, 150. 
 
 agreement may be gathered from different papers, 157. 
 
 different papers must refer to each other, 157, 158 and n. I. 
 
 distinction between sees. 4 and 17, as to price, 152. 
 
 acceptance and receipt under, 1 60. 
 
 earnest, to take sale out of, 163. 
 
 does not extend to sales by the Court, 244. 
 See Part Performance. 
 
 "Free Public House," 6i. 
 
 Fructus Industriales, 147 n. 
 
492 INDEX. 
 
 Georgia, 
 
 statutes of, regulating auctions, 415. 
 Goods, 
 
 license to purchaser to remove, 112. 
 
 what are, within the Statute of Frauds, 144-149. 
 
 acceptance and receipt of, 160 el seq. 
 
 when property in passes, 185 et seq. 
 
 condition of sale as to clearance of, 105, 187. 
 
 duty of vendor of, 193. 
 
 vendor's lien on, 187. 
 
 remedies of vendor of, 199. 
 
 duty of purchaser of, 195. 
 
 right of purchaser to inspect, 194, 205. 
 
 remedies of purchaser of, 203 et seq. 
 
 not in existence at date of contract, 144. 
 
 privileged from distress for rent, 265-278. 
 See Distress for Rent. 
 Ground Rent, 61. 
 Growing Crops. — • See Crops. 
 
 Guarantee, 
 
 consideration need not be stated in, 150 n. 
 
 Hawker, 
 
 auctioneer acting as, requires hawker's license, 16. 
 Hops, 
 
 warranty on sale of, Ii8, 119. 
 Horses, 
 
 what is unsoundness in, 59, 60. 
 House Agent, 
 
 licensed, may act as appraiser, 38. 
 
 licensed auctioneer may act as, 14. 
 
 remuneration of, 220, 224, 226. 
 See Estate Agent. 
 
 Husband and Wife. — See^ Married Woman. 
 
 Identity of Parcels, 
 
 obligation of vendor to show, 94. 
 
 condition of sale as to, 100, loi n. 
 Illinois, 
 
 statutes of, regulating auctions, 415. 
 
 Inadequacy of Price, 
 
 when judicial sale set aside for, 249 n. u. 
 
 when execution sale set aside for, 250 n. i. 
 Incapacity, 
 
 contracts by persons under, 122 et seq. 
 
 Inclosure Act, 
 
 condition of sale as to allotment under, 97. 
 Incompetence, 
 
 of auctioneer, 35. 
 
 of appraiser, 41, 42. 
 Incumbrances, 
 
 mention of, in particulars of sale, 74 et seq., 79. 
 
 fraudulent concealment of, 76 n. 
 
 conditions of sale as to, 93. 
 Indemnity, 
 
 right of auctioneer to, 35, 219, 229. 
 
 stakeholder not bound to accept, from claimant, 217. 
 
 to bailiff, how far implied in distress warrant, 253, 259. 
 
INDEX. 
 
 Indiana, 
 
 statutes of, regulating licenses of auctioneers, 415. 
 
 Infant, 
 
 auctioneer may refuse bid of, 1 22, 1 23 and n. I . 
 
 contract by, 122. 
 
 may act as agent, 128. 
 Innkeepers Act (1878), 5, 284. 
 Iowa, 
 
 statutes of, licensing auctioneers, 415. 
 
 Insanity, 
 
 of principal, 32. 
 
 of agent, 32. 
 
 how far, revokes authority of agent, 32. 
 
 of bidder, 123. 
 
 of party to contract, 189. 
 Insolvency, 
 
 of party to contract, 189. 
 
 of auctioneer's principal, 233, 253. 
 
 Insurance, 
 
 when purchaser should effect, 105. 
 
 vendor and purchaser have interest in each other's, 184, 185. 
 
 same rule between lessor and lessee, 185 n. t. 
 
 of property by auctioneer, 231. 
 
 sale of policy of, 362. 
 
 Interest, 
 
 rate of, generally required on unpaid purchase-money, 370 n. g. 
 on deposit, purchaser's right to, 109, 202. 
 liability of purchaser to pay, 104, 196. 
 liability of auctioneer to pay, 232. 
 condition of sale as to payment of, 104. 
 
 Interpleader, 
 
 auctioneer's right to, 212 et seq. 
 
 costs in, 217. 
 I. O. U., 27, 179, 181, 211. 
 
 Judicial Sale. — See Sale by the Court. 
 
 Jus Tertii, 
 
 how far auctioneer may set up against his employer, 34 and n. m. 
 
 Kansas, 
 
 statutes of, for auctioneers' licenses, 416. 
 
 Knock-out Sales, 121. 
 
 Land, 
 
 what is, within Statute of Frauds, 146. , 
 includes timber, &c., 65. 
 when property in passes, 184, 
 duty of vendor on sale of, 193. 
 
 purchaser on sale of, 194. 
 vendor's remedies on sale of, 195. 
 purchaser's remedies on sale of, 202. 
 
 Landlord's Measure, 64 n. 
 
 Land Tax, 
 
 auctions for redemption of, 3. 
 
 " Land Tax Redeemed," 61. 
 
 493 
 
494 INDEX. 
 
 Lease, 
 
 when purchaser has notice of contents of, 55, 77. 
 
 when covenants in should be stated in particulars, 77. 
 
 variance between particulars of sale and, 55. 
 
 when presumed to be valid, 102. 
 
 for lives, 102. 
 Leaseholds, 
 
 sale of, ^l ei seq. 
 
 conditions of sale as to, 92, 94. 
 
 title to, 95 n,, 96. 
 
 renewable, 61, 96. 
 
 long, 95 n. 
 Lessee, 
 
 and lessor, not interested in each other's insurance, 184, 185. 
 
 has notice of lessor's title, 96 n. 
 
 rights of, as to timber, 92. 
 Letter, 
 
 bid may be made by, 2 n. I. 
 License, 
 
 auctioneer's, 7-19. 
 
 exemptions from, 10-12. 
 
 statutes regulating, 397 et seq. 
 
 rights of purchaser from unlicensed auctioneer, 9 n. 2. 
 
 adjournment of sale may be made by one not licensed, 9 n. 2, 
 
 limited to particular place, 14 n. i. 
 
 when auctioneer must have pawnbroker's, 17 n. I. 
 
 appraiser's, 38. 
 
 hawker's, 16. 
 
 to sell excisaljle goods, 15. 
 
 production of, iS, 113. 
 
 to enter premises, when revocable, 27, 112. 
 See Auctioneer's License. 
 Lien, 
 
 of vendor upon land sold, for the price, 185. 
 upon the sale of goods, 187. 
 
 prevents acceptance under Statute of Frauds, 162, 163. 
 upon the sale of land, 185. 
 
 of purchaser, for deposit, 182. 
 
 of auctioneer, upon goods or price, 25, 228. 
 upon deposit, 228. 
 when he claims to interplead, 216. 
 Life Interest, 
 
 sale of, 362 n.y? 
 Lodgers' Goods, 269-271. 
 Lots, 
 
 sale in, 
 
 right to abstract on, 97. 
 expense of verifying abstract on, 100. 
 right to deeds on, ro6. 
 apportionment of rent, &c., on, 94. 
 Louisiana, 
 
 statutes regulating auctions in, 416, 
 Lunatic. — See Insanity. 
 
 Maine, 
 
 statutes regulating auctions in, 420. 
 Manor, 
 
 particulars of sale of, 79. 
 
 condition of sale as to waste of, 97. 
 
INDEX. 495 
 
 Map. — See Plan. 
 
 Margin, 
 
 security held on, to be sold like ordinary pledge, 282 n. b. 
 
 Market Overt, 
 
 sale by auction not/^r se sale in, 3 n., 35. 
 
 Married Woman, 
 
 when marriage evokes agency, 31. 
 
 agency of wife %\'hen husband insane, 32 n. q. 
 
 contract by, 1 23. 
 
 Maryland, 
 
 statutes regulating auctions in, 422. 
 
 Massachusetts, 
 
 statutes regulating auctions in, 429. 
 
 Master, Sale by. — See Sale by the Court. 
 
 Measures, 63. 
 
 Memorandum, 
 
 under Statute of Frauds. See Frauds, Statute of. 
 
 Michigan, 
 
 statutes regulating auctions in, 430. 
 
 Minnesota, 
 
 statutes regulating auctions in, 431. 
 
 Misdescription, 
 
 of situation of property, 68. 
 
 of terms of lease, 45 n. 
 
 by auctioneer, 36. 
 
 of property sold under legal process, effect of, 44 n. I, 48 n. i, 49 n. i. 
 
 fraudulent, 50, 68. 
 
 grossly negligent, 51. • 
 
 vendor must comply with description in advertisement, 51 n. «. 
 
 innocent, 51 n. 
 
 material, 51. 
 
 slight, 51, 56. 
 
 immaterial, 56. 
 
 of quantity of land, 64 and n. ti. 
 
 of situation of property sold, 68 et seq. 
 
 where purchaser not misled, 107. 
 
 when ground for rescission, 52. 
 
 when for compensation, 52, 57. 
 
 compensation for, after conveyance, 52 n. 
 
 mere puffing statement is not, 57. 
 
 examples of what is, 58, 60 et seq. 
 
 of title to property, 70 et seq. 
 
 of rights of other parties in property sold, 74 et seq. 
 
 of incumbrances upon property sold, 76 et seq. 
 
 by not mentioning easements and outgoings, 79, 80. 
 
 conditions of sale as to, 106. 
 
 Misrepresentation, 
 
 mere silence is not, 60, 117. 
 innocent, 1 90. 
 
 See Misdescription. 
 
 Mississippi, 
 
 statutes regulating auctions in, 432. 
 
 Missouri, 
 
 statutes regulating auctions in, 433. 
 
49^ INDEX. 
 
 Mistake, 
 
 by agent, as to extent of his authority, 23 n. 
 
 bargain made under, annulled in equity, 47 n. n. 
 
 effect of, upon contract, 53. 
 
 must generally be mutual, 54 n. /. 
 
 in particulars, specific performance refused for, 53, 54. 
 
 parol evidence to rebut allegation of, 54. 
 
 where no ambiguity, 55. 
 
 rectification of conveyance on ground of, 54. 
 
 parol evidence admissible to show, 166. 
 
 to rebut allegation of, 54. 
 by person employed to make reserved bidding, 120, 140, 142. 
 
 Mock Auctions, 3 n., 142. 
 
 Montana, 
 
 licenses of auctioneers in, 435. 
 
 "Month," 165. 
 
 " More or Less," 
 
 qualifying words will control statement of quantity, 64 n. n. 
 
 Mortgage, 
 
 mortgagee selling under power may require a deposit, 91 n./. 
 emblements of lessee do not pass to purchaser under, 92 n. i. 
 purchaser at auction subject to, does not assume, 94 n. I. 
 sale under, set aside, if competition restricted, 114 n. I. 
 no implication of warranty in sales under, 194 and n. 1. 
 
 Najie and Address 
 
 of auctioneer must be exhibited in sale-room, 19, 114. 
 
 Name and Occupation, 
 
 as to auctioneer putting up, over his door, 19. 
 Nebraska, 
 
 statutes regulating auctions in, 436. 
 Negligence, 
 
 of auctioneer, 35, 36, 231. 
 
 of appraiser, 41, 42. 
 
 in drawing particulars, 79 n. I. 
 
 of bailiff, 253, 259. 
 Nevada, 
 
 statutes regulating auctions in, 436. 
 New Hampshire, 
 
 statutes regulating auctions in, 437. 
 New Jersey, 
 
 statutes regulating auctions in, 438. 
 New York, 
 
 statutes regulating auctions in, 439. 
 North Carolina, 
 
 statutes regulating auctions in, 449. 
 Notes. — See Promissory Notes. 
 
 Notice, 
 
 of limited authority of agent, 34. 
 
 auctioneer having, of want of title in principal, 35. 
 
 cures omission in particulars, how far, 77. 
 
 of lease, 77. 
 
 by announcement of auctioneer at sale, 89 n. la, n. b. 
 
 of rules limiting duration of warranty, 89 n. x. 
 
 of lessor's title, 96. 
 
INDEX. 497 
 
 Notice — continued. 
 
 of act of bankruptcy, 1 24. 
 
 of claim of third party, 228. 
 
 of judicial sale, what, and how given, 241 n. x. 
 
 what description to be given in, 242 n. a. 
 
 right of parties to, 244 n. n. 
 
 of distress, 278. 
 
 of removal of corn and growing crops distrained for rent, 273. 
 
 of removal of goods distrained for rent, 278. 
 
 by lodger of his interest in goods distrained for rent, 269. 
 
 Objections to Title, 98. 
 Offensive Trade, 78. 
 
 whether selling by auction is, 112. 
 Offer, 
 
 may be withdrawn before acceptance, 30. 
 Ohio, 
 
 statutes regulating auctions in, 450. 
 Ordinary Diligence, 
 
 contracted for by agent, what it is, 42 n. t. 
 Oregon, 
 
 statutes regulating auctions in, 453. 
 
 Outgoings, 79, 104. 
 
 Outstanding Term, 
 
 expense of getting in, 103. 
 
 Parol Evidence, 
 
 admissible to prevent specific performance, 45. 
 to rebut allegation of mistake, 54. 
 to prove agency, 206. 
 
 to connect several documents, 157 et seq. > 
 
 when admissible to vary written contract, 45, 164. 
 
 to explain (subject matter of) written agreement, 46, 
 
 70, 151- , ^ 
 
 to explain meaning of words, 164, 1 65. 
 to show usage under which contract made, 165. 
 to show mistake in contract, in defence, 165, 166. 
 of rescission of contract, 166. 
 See Mistake. 
 
 Part Payment, 
 
 distinguished from earnest, 163. 
 
 deposit is, 164. 
 
 not necessarily part performance, 198. 
 
 Part Performance, 
 
 what is, 197, 198. 
 
 effect of, 197. 
 Particulars of Sale, 
 
 what they are, 44. 
 
 distinguished from conditions, 47. 
 
 should be printed with conditions, 47, 88 n. 
 
 should be submitted to vendor, 48. 
 
 circulation of, 44 n. 115. 
 
 in doubtful cases construed against vendor, 44, 57. 
 
 how far affected by verbal declaration of auctioneer, 44 et seq. 
 
 should faithfully describe property, 47, 50. 
 
 formal language need not be used in, 48. 
 
 what they should contain, 48-50, 60 et seq. 
 
 effect of omission from, 52 n., 77. 
 
498 INDEX. 
 
 Particulars of Sale — continued. 
 
 ambiguity in, 53. 
 
 specific performance refused for mistake in, 53. 
 
 unimportant errors not fatal, 56. 
 
 if sale without reserve, should say so, 90, 136. 
 
 as to stating vendor's name in, 49 n. 
 
 misstatement of quantity in, 64 et seq. 
 
 of situation of property in, 68 et seq. 
 of title to property in, 70 et seq. 
 
 statement of breach of covenant in, 73. 
 
 alterations in, 55, 56, 115. 
 
 rights of other parties should be stated in, 74 et seq. 
 ■ should mention incumbrances on property, 76 et seq. 
 
 liability of auctioneer for negligence in drawing, 79 n. I. 
 
 easements should be mentioned in, 79. 
 
 should be read out at sale, 115. 
 
 signature on, 159. 
 
 on sale by the Court, 240, 243. 
 Partition, 
 
 sale by sealed proposals, on partition for, 3 n. I . 
 See Sale by the Court. 
 Partner, 
 
 each, selling by auction, must have separate license, 14. 
 
 auctioneer may not sell to his, 28. 
 " Party Wall," 62. 
 Pawnbroker, 
 
 when auctioneer must be licensed as, 17 n. i. 
 
 does not warrant title to goods, 194. 
 
 Pawnbrokers Act (1872), 
 
 sales by auction under, 4, 282-284. 
 Payment, 
 
 into Court, by applicant for interpleader, 216. 
 
 to auctioneer, how to be made, 1 72 ei seq. 
 Pennsylvania, 
 
 statutes of, regulating auctions, 453. 
 Perishable Goods, 
 
 sale of, under County Court process, 251. 
 under distress for rent, 269. 
 
 "Place of Public Resort," 112 n. 
 
 Place of Sale, hi and n. i. 
 
 Plan, 50, 69. 
 
 necessity for accuracy in, 80. 
 
 compensation for slight error in, 80 n. /. 
 
 when accurate, tantamount to view, 81. 
 
 exhibition of street or way in, effect of, 81, 82. 
 
 lithographic, 82. 
 Pledge, 
 
 must be sold by auction after proper notice, 282 n. d. 
 
 pledgee's purchase voidable by pledgor, id. 
 
 marginal security subject to same rule, id. 
 Policy. — See Insurance. 
 Possession, 
 
 not necessarily personal occupation, 104 n. 
 Post Horse Duties, 
 
 former auctions of, 2 n. 
 Precedents. — See list on page 475. 
 
INDEX. 499 
 
 Price, 
 
 setting aside judicial sale for inadequacy of, 249 n. a. 
 
 setting aside execution sale for inadequacy of, 250 n. I. 
 Principal, 
 
 right of, to sue, 206. 
 
 liability of, for acts of agent, 34. 
 See Agent. 
 
 Private Biddings. — See Puffers. 
 
 Private Contract, 
 
 auctioneer selling by, 23 n., 27, 84, 126, 129. 
 Probate Valuations 
 
 require no stamp, 40. 
 Production 
 
 of documents of title, 99. 
 Promissory Notes, 
 
 right of auctioneer authorized to sell on credit to take, 26 n. I. 
 Property, 
 
 what is sufficiently definite description of a, 151. 
 of auctioneer in goods entrusted to him, 25, 1 13. 
 in land, when it passes, 184. 
 in goods, when it passes, 185 et seq. 
 Puffers, 
 
 purchaser may avoid sale for by-bidding, when, 90 n. yC 
 defined, 136 n. 
 must not be employed, 120. 
 unauthorized, 120 n. 
 how viewed at law, 131— 133. 
 how formerly in equity, 133-135. 
 equity assimilated to law as to, 136. 
 upon sales of goods, 137. 
 
 where auctioneer runs up price by fictitious bids, 139. 
 whether puffer purchasing held to bargain, 140. 
 on sales by the Court, 245, 246. 
 Puffing Statements, 57, 58. 
 Purchase-Money 
 
 on auction-sale, when paid, 3. 
 Purchaser, 
 
 right of trustee to purchase trust property, 4 n. 2. 
 
 at execution sale, how far affected by sheriffs irregularity, 36 n. I. 
 
 may insist on statements in particulars, 44 et seq. 
 
 where quantity of land misstated, 64 et seq. 
 
 may demand marketable title, 85 n. e. 
 
 may avoid sale for by-bidding, 90 n./. 
 
 duty of, on sale of land, 194. 
 
 of goods, 195. 
 buying subject to mortgage does not assume it, 94 n. I. 
 to be compensated for delay in making title, 95 n. i. 
 entitled to return of deposit if sale annulled, 109 n. t. 
 license to, to enter premises to remove goods. III n.. d. 
 must not unfairly influence biddings, 120, 142. 
 employing vendor's agent, 142. 
 right of, to title-deeds, 105, 106. 
 to inspect goods, 195. 
 to deposit, 108, 109. 
 lien of, for deposit and partial payments, 182. 
 when property at risk of, 185, 186. 
 has no interest in vendor's insurance, 184, 185. 
 
SOO INDEX. 
 
 Purchaser — continued. 
 
 effect of false representations by, 1 90 and n. f. 
 when not liable for damage to goods, 108. 
 not entitled to surplus upon resale, 109. 
 
 wishing to rescind contract, must surrender possession, 192 and n. n. 
 cannot avail himself of contract while in default, 193 and n, I. 
 of distinct parcels of land, rights and duties of, 194 and n. i. 
 at judicial sale, rights of, 237 n. b. 
 remedies of, on sale of land, 202. 
 of goods, 203. 
 
 Qualifying Expressions, 
 
 effect of, 64. 
 
 controlling overstatement of quantity of land, 64 and n. u. 
 Quantity, 
 
 slight overstatement of, in advertisement, not fatal to sale, 56 n. I. 
 
 misstatement of, rule in America, 64 n. u, 66 n. i. 
 
 of land, how to be stated, 66 n. 
 Quantum Meruit, 225. 
 
 Rates and Taxes, 
 
 mention of, in particulars, 79, 
 Ratification, 
 
 by cestui que trust of trustee's purchase of the trust property, 4 n. z. 
 of act of agent by principal, 21, 34 n. 
 cannot be made in part, '^-^. 
 
 where principal incompetent at time of contract, 22. 
 of contract, by drunkard, 124 n. 
 Reasonable Skill 
 
 contracted for by agent, what is, 42 n. t. 
 Recitals, 
 
 how far evidence of facts, 95, 96, loi. 
 Redemption of Land Tax, 
 sales by auction for, 3. 
 evidence of, 61 n. 
 Remuneration, 
 
 right of auctioneer to, generally, 219 et seq. 
 bankrupt auctioneer to, 229. 
 unlicensed auctioneer to, 9. 
 
 auctioneer to, when sale not directly effected by him, 221. 
 when principal himself sells, 251. 
 when vendor fails to complete, 225-6. 
 where resale ordered by court, 225 and n. c. 
 when purchaser fails to complete, 225. 
 when his authority to sell is revoked, 32. 
 auctioneer may maintain action against buyer for, 
 228 and n. b. 
 dependent upon a contingency, 223. 
 
 on a quantum }nej'itit, 225. 
 on sale by the Court, 240, 241. 
 for sale under a distress for rent, 219, 281. 
 a bankruptcy, 220. 
 County Court process, 219. 
 how forfeited, 41, 227. 
 of appraiser, 41, 42. 
 of unlicensed appraiser, 39. 
 of house agent, 220, 224. 
 where several agents, 226. 
 
INDEX. 501 
 
 " Renewable Leaseholds." — See Leaseholds. 
 Rent, 
 
 condition of sale as to apportionment of, 94. 
 
 receipt for, how far evidence of performance of covenants in lease, 102. 
 Rent Charge, 
 
 condition of sale as to apportionment of, 94. 
 
 for life, condition of sale as to, 105. 
 
 Rents and Profits, 
 
 purchaser's right to, 104. 
 
 include fair occupation rent, 104 n. 
 
 Reopening Biddings, 24S, 249. 
 
 Replevin, 278 n. 
 
 Representation. — See Fraud. 
 
 when, amounts to warranty, 117. 
 
 Requisitions on Title,' 98. 
 
 Resale, 
 
 conditions of sale as to, 108. 
 
 vendor's right to have, 109, 196. 
 
 loss upon, 109, 195. 
 
 surplus on, 109. 
 
 liability of purchaser for loss at, 195, 196, 201. 
 
 who entitled to gain on, 196. 
 
 of goods, 199, 204. 
 
 how to be made, 200 and n. v. 
 
 auctioneer's commission, 225 and n. <,. 
 
 on sale by the Court, 250. 
 
 Rescission of Contract. — See Fraud — Misdescription. 
 
 Reserved Bidding, 90, 91, 138. 
 
 mistake by person employed to make, 121, 140. 
 
 favored in equity, 140. 
 
 on sales by the Court, 91, 242-246. 
 
 Reserved Price, 90, 132 n., 140. 
 
 generally fixed by auctioneer, 140. 
 
 how to fix, ib. 
 
 as to disclosing, 141. 
 
 Reserved Right to Bid, 136 et seq. 
 once, 90, 138. 
 
 Reversionary Interest, 
 
 purchase of, 4. 
 
 title to, 95 n. 
 
 preparation of particulars of sale of, 305 n. 
 
 sale of, 337 n. 
 
 Revocation of Authority of Agent, 30-32. 
 
 Rhode Island, 
 
 statutes regulating auctions in, 463. 
 
 Road. — See Way. 
 
 Roup, 2. 
 
 Sale, 
 
 contract of, complete when hammer falls, 2 n. 2. 
 auctioneer not authorized to bid in property, 24 n. u. 
 minds of parties must meet as to property sold, 88 n. s. 
 advertisement of, 26 n. 
 for cash, meaning of, 91 n. i. 
 
502 INDEX. 
 
 Sale — contimicd. 
 
 when time of essence of contract, 103. 
 
 who must bear expense of preparing deed, 103 and n. 0. 
 
 of goods, vendor's lien determined by delivery, 187. 
 
 right of stoppage in transitu, 187, 188. 
 
 place of, III. 
 
 by private contract, 23 n., 27, 84, 126, 129. 
 
 when complete, 129. 
 
 under distress for rent, 252-286. 
 
 Innkeepers Act (1878), 5, 284. 
 
 Pawnbrokers Act (1872), 4, 282-284. 
 
 process or order of County Court, 4, 250, 25 1. 
 
 Summary Jurisdiction Act (1S79), 4, 284-2S6. 
 See alio AucniiN — Distress for Kent — Sale by the Court — 
 Sale r.v Sample— Sale without Reserve. 
 
 Sale by the Court, 
 
 usually by auction, 4, 237. 
 
 not now before chief clerk, 10 n. 
 
 discretion of officer conducting, to prescribe terms of, 84 n. i. 
 
 terms commonly prescribed by the court, 85 n. 1. 
 
 purchaser takes only what decreed to be sold, 92 n. 2. 
 
 compensation for delay in making title, 95 n. I. 
 
 whether goods must be shown at, III n. I. 
 
 where to be made, in n. I. 
 
 set aside where parties prevented from attending, 114 n./. 
 
 or if sale not fairly conducted, 114 n. I. 
 
 time for bidding may be reasonably limited, 119 n. I. 
 
 sale set aside for misunderstanding in bidders, 120 n. I. 
 
 preliminaries of, 237 et seq. 
 
 reserved bidding on, 91, 140, 242-246. 
 
 resale ordered, when sold for less than limited price, 25 n. I. 
 
 officer selling, cannot discharge purchaser at, 29 n. I. 
 
 effect of purchaser at, preventing competition, 121 n. y. 
 
 bid of irresponsible person may be disregarded, 122 n. 2. 
 
 purchaser at, cannot hold auctioneer as depositary of price, 178 n. I. 
 
 authority of person appointed to sell to receive price, 21 1 and n. I. 
 
 jurisdiclion of equity to order, 237 and n. b. 
 
 rights of purchasers at, 237 and n. b. 
 
 right of creditor to purchase at, 237 n. g. 
 
 person making, cannot purchase at, 237 rx.j. 
 
 what title purchaser at, may demand, 240 n. n. 
 
 sale should be made in proper parcels, 241 n. j. 
 
 proceedings at, 244-246. 
 
 rights of highest bidder at, 245, 246, 248. 
 
 hiijhest bidder has no rights when sale discontinued, 30 n. u. 
 
 when avoided for insufficient description of property, 4S n. I, 49 n. I. 
 
 right of officer to adjourn, 115 n. a. 
 
 one reported as highest bidder bound thereby, 126 n. 3. 
 
 sale may be for cash or on credit, 240 n. p. 
 
 advertisement of, 241. 
 
 I:)idding by incompetent person at, 239, 246, 249. 
 
 bidding at, by parties, when sale without reserve, 139. 
 
 condition as to retracting biddings on, 30. 
 
 employment of puffers at, 245. 
 
 effect of Sale of Land by Auction Act on, 137, 245, 248, 249. 
 
 not within Statute of Frauds, 143, 244. 
 
 reopening the i:)iddings on, 24S, 249. 
 
 power of court to order resale upon higher offer, 248 n. ^. 
 
 when sale set aside for inadequacy of price, 249 n. ti. 
 
 place of sale fixed by decree, 241. 
 
S03 
 
 INDEX. 
 
 Sale by the Court — -continued. 
 
 purchaser submits himself to jurisdiction of court, 244 n. 0. 
 power of officer malting, to adjourn sale, 246 n. b. 
 confirmation essential to completion of, 248 n. 2. 
 substitution of purchaser on, 249. 
 deposit on, 171 n. i, 178, 240-247. 
 affidavit of result of, 243, 246, 247. 
 certificate of result of, 246, 249. 
 abortive, 249. 
 resale after, 250. 
 See also County Court — Fraud. 
 
 Sale by Sample 
 
 of excisable goods, 15. 
 implied warranty on, 118. 
 purchaser's remedies on, 205. 
 
 Sale on Execution, 
 
 must be made for cash, 2 n. I, 3 n. 2, 25 n. I, 250 n. a. 
 
 how far officer is agent of debtor and of creditor, 20 n. I. 
 
 where to be made, 27 n. i. 
 
 right of selling officer to purchase, 28 n. 2. 
 
 sheriff liable for failure to sell properly, 36 n. i. 
 
 sale avoided for fraud between officer and purchaser, 36 n. I. 
 
 sheriff not liable unless at fault, 36 n. 1. 
 
 how far purchaser affected by sheriff's irregularity, 36 n. i. 
 
 when appraisal an essential preliminary to, 38 n. I. 
 
 real estate sold on, must be sufficiently described, 44 n. i. 
 
 avoided for insufficient description of property, 48 n. i, 49 n. I. 
 
 not avoided for misstatement of survey in advertisement, 56 n. I. 
 
 purchaser relieved for false statements as to incumbrances upon property 
 
 sold, 76 n. z. 
 discretion of officer to prescribe terms of, 84 n. i. 
 sale made at improper place set aside, 85 n. i. 
 sheriff bound to fix proper terms of sale, 86 n. z. 
 
 creditor purchasing cannot complain that terms were improper, 87 n. n. 
 goods must be present at, HI n. I. 
 right of sheriff to adjourn, 115 n. a. 
 effect of purchaser at, preventing competition, 121 n._)'. 
 sheriff need not take bid of irresponsible person, 122 n. i. 
 rule against puffing applies to, 131, 132 n. I. 
 but debtor may employ bidder to buy in, 131, 132 n. I. 
 creditor purchasing cannot complain of puffing, 131, 132 n. I. 
 sheriff's return sufficient memorandum under Statute of Frauds, 143 n. I. 
 whether creditor purchasing at, bound to pay bid in full, 195 and n. ^. 
 no implied warranty in, 195 and n. h. 
 
 liability of defaulting purchaser at, on resale, 195 and n.y. 
 rights of purchaser at, 250 n. a. 
 
 not avoided by reason of mere irregularities, 250 n. a. 
 when avoided for inadequacy of price, 250 n. i. 
 must be made upon proper notice, 251 n./ 
 power of officer making, to adjourn, 251 n./ 
 when sale should be made in parcels, 251 n. h. 
 
 Sale " Without Reserve," 
 meaning of, 139. 
 
 revocation of auctioneer's authority on, 30. 
 by auctioneer without authority, 139. 
 
 Sale-book, 127, 159. 
 
 Seal, 
 
 not essential to contract of a corporation, 22 n. m. 
 
504 BJDEX. 
 
 Searches, 
 
 expenses of, lOO. 
 Servitude. — See Easement. 
 Shares, 
 
 what not within Statute of Frauds, 149. 
 
 are sometimes real estate, 149 n. 
 
 Sheriff, 
 
 does not warrant title to goods, 194. 
 sale by. See Sale on Execution. 
 
 Signature, 
 
 what sufficient to make contract binding, 153. 
 
 " as witness," 29, 153. 
 
 by agent, 157. 
 
 by auctioneer's clerk, 26 n. 
 
 place for, 157-160. 
 
 Situation 
 
 of land sold, false representations as to, 68 et seq. 
 
 Solicitor, 
 
 acting as agent for both parties to contract, 156. 
 
 authority of, to sign for client, 156. 
 
 purchase by, 125. 
 
 payment of deposit to, 171, 175, 176. 
 
 on sales by the Court, 238, 239. 
 
 South Carolina, 
 
 statutes regulating auctions in, 465. 
 Soundness, 
 
 meaning of, 59. 
 
 warranty of, 116, 117. 
 
 Specific Performance, 
 
 parol evidence admissible against, 45. 
 
 allowed only of fair agreement, 52, 53. 
 
 of parol agreement, 196. 
 
 of contract for sale of goods, 201. 
 
 of contract for sale of land, 198. 
 
 when refused, 53, 196. 
 
 where complete performance impossible, 194 and n. i. 
 
 in favor of purchaser from sheriff, administrator, or trustee, 204 n. q. 
 
 action for, 196. 
 
 Stakeholder, 
 
 auctioneer's liability for deposit as, 175 et seq. 
 right of, to maintain interpleader, 2\2 et seq. 
 
 Stamp, 
 
 on agreement, i66 et seq. 
 
 on appraisement, 39, 40, 251, 280. 
 
 on award, 39. 
 
 on broker's contract note, 167. 
 
 how and when to be af&xed, 169, 1 70. 
 
 effect of want of, 170. 
 
 wilful neglect to cancel, 169 n. 
 
 Statute of Frauds. — See Frauds, Statute of. 
 
 Statutes Regulating Auctions, 
 in England, 397. 
 Alabama, 404. 
 Arizona, 404. 
 Arkansas, 405. 
 California, 406. 
 
INDEX. 
 
 Statutes Regulating Auctions — continued. 
 Connecticut, 409. 
 Delaware, 411. 
 Florida, 413. 
 Georgia, 415. 
 Illinois, 415. 
 Indiana, 415. 
 Iowa, 415. 
 Kansas, 416. 
 Louisiana, 416. 
 Maine, 420. 
 Maryland, 422. 
 Massachusetts, 429. 
 Michigan, 430. 
 Minnesota, 431. 
 Mississippi, 432. 
 Missouri, 433. 
 Montana, 435. 
 Nebraska, 436. 
 Nevada, 436. 
 New Hampshire, 437. 
 New Jersey, 438. 
 New York, 439. 
 North Carolina, 449. 
 Ohio, 450. 
 Oregon, 453. 
 Pennsylvania, 453. 
 Rhode Island, 463. 
 South Carolina, 465. 
 Tennessee, 466. 
 Texas, 468. 
 Utah, 469. 
 Vermont, 469. 
 Virginia, 470. 
 Washington, 471. 
 West Virginia, 472. 
 Wisconsin, 472. 
 Wyoming, 473. 
 
 Statutory Declarations, ioi, 102. 
 Stock, 
 
 foreign, not within Statute of Frauds, 148. 
 Stoppage in Transitu, 
 
 rights of vendor as to, 188. 
 Street. — See Ways. 
 Subrogation 
 
 of purchaser where sale avoided, 203 n. I. 
 Summary Jurisdiction Act (1879), 
 
 sales under, 4, 12 n., 284-286. 
 
 Surveyor, 
 
 remuneration of, 42. 
 Surveys, 3. 
 
 misstatement of, in advertisement, need not avoid sale, 56 n. I. 
 
 Taxes, 
 
 mode of sale for, in California, 3 n. 2. 
 
 upon auction sales, 5 n. i. 
 
 right of nmnicipalities to impose, 7 n. I. 
 
 right of of&cer selling property for, to purchase, 28 n. 2. 
 
 no warranty implied in, 194 and n. i. 
 
 505 
 
506 INDEX. 
 
 Tenancy, 
 
 description of, in particulars, 73. 
 Tenant's Measure, 64 n. 
 Tenants in Common. — See Cotenants. 
 
 Tennessee, 
 
 statutes regulating auctions in, 466. 
 
 Texas, 
 
 statutes regulating auctions in, 468. 
 
 Tenure 
 
 should be stated in particulars, 70, 71. 
 
 Terms of Sale. — See Conditions of Sale. 
 
 Third Party, 
 
 right of auctioneer to sue, how affected by rights of, 25 n. 
 
 Interpleader Act as to, 213. 
 
 when agent can set up claim by, 34. 
 
 claim of, to goods seized under County Court process, 251. 
 
 how far affected by principal's instructions to agent, 34. 
 
 how affected by revocation of agent's authority, 30, 31. 
 
 purchasing from fraudulent buyer, 192. 
 
 right of purchaser, selling to, before payment, to sue, 186 n. 
 
 Timber, 
 
 what is, 66. 
 
 included in " land," 66. 
 
 separate sale of, 41, 67. 
 
 misdescription of, 6S. 
 
 lessee's interest in, 92. « 
 
 conditions of sale as to, 92, 93. 
 
 contracts for the sale of, 147. 
 Time, 
 
 when of essence of contract, 103. 
 Tithes, 
 
 condition of sale as to, 97. 
 Title, 
 
 agreement to sell, implies title in fee simple, 70. 
 
 sale of interest of a person does not imply good title, 95 n. d. 
 
 investigation of, prior to sale, 84. 
 
 obligations of vendor as to, 70, 84, 94. 
 
 conditions may bind purchaser to take defective, 86 n. i. 
 
 vendor allowed reasonable time to perfect, 94 n. w. 
 
 purchaser not be harmed by this delay, 95 n. I. 
 
 waiver by purchaser of right to, 193 n. 
 
 conditions of sale as to, 94, 109. 
 
 as to conditions of sale stating defects in, 87, 95. 
 
 of principal, how far auctioneer can dispute, 34. 
 See Abstract of Title. 
 
 Title-deeds, 
 
 right of purchaser to, 105, io5. 
 expense of copies of, 106. 
 conditions of sale as to, 108. 
 accident to, 105. 
 
 Trader, 
 
 how far an auctioneer is, in bankruptcy, i n. b. 
 
 Trade Mark, 118. 
 
 "Trees," 67, 147. 
 
INDEX. 507 
 
 Trustee, 
 
 for sale, should sell by auction, 4 n. 2. 
 
 not allowed to waive rights under contract of sale, 28, 29 n. i. 
 
 purchase of trust property by, 4 n., 125. 
 
 valuation by, 40 n. 
 
 employment of special conditions of sale by, 86. 
 
 bound to sell to best advantage, 86 n. g. 
 
 may allow bid made under mistake to be retracted, 87 n. k. 
 
 may reserve bidding, 91. 
 
 covenants for title by, 104. 
 
 bound to see that sale fairly conducted, 114 n. I. 
 
 purchase by, may be set aside, 125. 
 
 cannot be made agent to purchase, 125 n. x. 
 
 purchase by, valid if confirmed, 125 n. x. 
 
 right of, to waive bid, 126 n. 2. 
 
 of turnpike-road, power of, to reserve right to bid, 135 n. 
 
 selling under power, responsible for deposit made by purchaser, 175 n. j. 
 See Trustee in Bankruptcy. 
 Trustee in Bankruptcy, 
 
 sale by auctioneer who is, 20 n. 
 . disclaimer by, 1S9 n. 
 Trustee Relief Act, 
 
 stakeholder is within, 218. 
 Turnpike Road, 
 
 power of trustees of, to reserve right to bid, 135 n. 
 
 Underlease 
 
 should be described as such in particulars, 72, 96. 
 when presumed to be valid, 102. 
 
 Undervalue 
 
 not ground for avoiding sale, 4 n., 23. 
 
 Usage, 
 
 parol evidence of, to explain contract, 165. 
 
 Use and Occupation, 
 
 liability of purchaser for, 196. 
 auctioneer's right to recover for, 25 n. 
 
 " Usual." — See Co^'ENANT. 
 
 Utah, 
 
 Hcensing of auctioneers in, 469. 
 
 Vagrant Act, 
 
 private house where auction is held, within, 112 n. 
 
 Valuation, 
 
 preliminary to sheriff's sales, 38 n. i. 
 will not be set aside unless mistake shown, 40 n. m. 
 conditions of sale relating to, 93. 
 on sale by the Court, 240-242. 
 See Appraisement. 
 
 Venditioni Exponas, 
 
 sale under writ of, 5 n. 
 
 Vendor, 
 
 must carry out statements in particulars, 44 et seq. 
 
 See Particulars of Sale. 
 rights and liabilities of, where quantity of land misstated, 64 et seq. 
 how far bound by reference to street in deed or plan, 81, 82. 
 restrictive conditions construed against, 87. 
 must bear expense of preparing deed, 103 and n. 0. 
 
S08 INDEX. 
 
 Vendor — continued. 
 
 lien of, prevents acceptance under Statute of Frauds, 162, 163. 
 
 obligations of, as to title, 84, 94. 
 
 allowed reasonable time to perfect title, 94 xi. w. 
 
 auctioneer not disclosing his principal held as, 119. 
 
 liability of, to highest bidder, 126. 
 
 when entitled to deposit, 178 et seq. 
 
 liability of, for loss of deposit, 182. 
 
 in possession, duty of, 185. 
 
 Hen of, upon land, 185. 
 
 how lost, 1S5. 
 lien of, upon goods, 187. 
 
 how lost, 187. 
 right of, to stop in tj'ansitu, 188. 
 
 to sue for loss on resale, 109. 
 duty of, on sale of land, 193. 
 
 on sale of goods, 193. 
 warrants title to goods, 193. 
 
 not liable to purchaser who is in default, 193 and n. I. 
 remedies of, on sale of land, 195. 
 
 goods, 199-201. 
 
 Vermont, 
 
 statutes of, regulating auctions, 469. 
 
 Virginia, 
 
 statutes of, regulating auctions, 470. 
 
 Waiver, 
 
 by purchaser, of right to title, 193 n. 
 
 Warranty, 
 
 auctioneer's authority to give, 28, 119, 130. 
 
 of authority, 33. 
 
 when description in catalogues amounts to, 58 and n. I. 
 
 not implied against apparent servitude in Louisiana, 95 n. I. 
 
 what is, 116. 
 
 qualified, 1 17. 
 
 mere expression of opinion not, 117. 
 
 must be in writing, when, 118. 
 
 when implied, 118. 
 
 condition as to breach of, 108. 
 
 remedies for breach of, 191, 204. 
 
 damages for breach of, 2o5. 
 
 of title to goods, 193. 
 
 of different lots of goods, if some accept, 188 n. t. 
 
 not implied in judicial or trust sales, 194 and n. I. 
 See Dajiages — Sale by Sample. 
 Washington, 
 
 licenses of auctioneers in, 471. 
 
 Waste, 
 
 condition of sale as to land formerly, 97. 
 Way, 
 
 effect of exhibition of, on plan of property sold, 81. 
 
 where property described as bounding on, 82 n. I. 
 
 auctioneer not to place goods in public streets, in n. I. 
 
 Weights and Measures, 
 ■what legal, 63 n. 
 
 West Virginia, 
 
 statutes regulating auctions in, 472. 
 " Whitebonnet," 131 n. 
 
INDEX. 
 
 Wisconsin, 
 
 statutes regulating auctions in, 472. 
 " With all Faults," 59 n., 60. 
 Withdrawal, 
 
 of bid, before acceptance, 30. 
 
 of lots, 115, 125. 
 
 of property, 2, 142. 
 Witnesses, 
 
 expenses of, 363 n. 
 Writing. 
 
 See Authority to Sell — Statute of Filwds. 
 Wyoming, 
 
 statutes regulating auctions in, 473. 
 
 509 
 
KF 920 B32 
 
 Author 
 
 Bateman, Joseph 
 
 Vol. 
 
 Title Copy 
 
 A prattical treatise on the 
 laws lef auetiono; with formo 
 
 Date 
 
 Borrower's Name