sale, and shall have publicly announced such reservation at the time of the sale (a). Sales by auction are within the Statute of Frauds, and a memorandum of the bargain not annexed to the catalogue is not sufficient to satisfy the statute. The auctioneer effecting a sale by auction, or his clerk taking down the bidding in the presence of the purchaser, is the authorised agent of both the vendor and the purchaser, and his signature in the books binds both parties, and is sufficient to satisfy the statute. When, however, the sale is over, the same principle does not apply, and the auctioneer is no longer the agent of both parties, but of the seller only, and his signature cannot bind the buyer (b). on a sale by auction the same person is declared to be the highest bidder for several lots, a distinct contract arises for lot; and if each of them is under £10 the statute will not apply, although the amount of the whole purchase may be much greater than £10 (c). If each Sales by auc tion within the Statute of Frauds. In a sale by lot is a dis auction each tinct contract. of auctioneer for deposit. Where a deposit has been paid to an auctioneer he becomes a Responsibility stakeholder for the same, and he cannot part with it either to the vendor or to the purchaser so long as any dispute exists regarding it; and if the vendor fails to make a title to the property sold, the deposit may be recovered of the auctioneer (d). of the con The auctioneer or the vendor may enforce the contract pro- Enforcement vided he has on his part performed all the conditions precedent tract. required by the contract. And the purchaser may, in case of non-performance, sue either the auctioneer or the principal, though it is best in either case that the proceedings should be instituted by or against the principal (e). The auctioneer is entitled to his commission, and also to all the expenses of advertising, catalogues, warehouse rent, &c., and he has a lien for the same on any goods of his employer which may be in his possession (f). If, however, through neg (a) See Second Report of Mercantile Law Commission, 1855. (b) Kenworthy v. Schofield, 2 B. & C. 945; Hinde v. Waterhouse, 7 East, 558; Emmerson v. Heelis, 2 Taunt. 38; Meux v. Carr, 1 H. & N. 484. (c) Emmerson v. Heelis, 2 Taunt. 38; James v. Shore, 1 Stark. 426; Lewin v. Guest, 1 Russ. 330. (d) Burrough v. Skinner, 5 Burr. (e) Henderson v. Barnewall, 1 Y. & Responsibility of auctioneer for losses. ligence or unskilfulness he fails to execute his duty to the benefit of his principal, he may lose his right to any remuneration (a). It is the duty of the auctioneer to take the same care of the goods sent to him for sale as he would of his own, and, if any loss or damage arise to them through his default or negligence, he is responsible for the same to his employer; but he is not liable for any loss or damage which may accidentally happen (b). The auctioneer is not responsible for the purchase money of the property sold, unless the same has been paid over to him. Rights of auctioneers. Withdrawal of the bidding. Employment of puffers. FOREIGN LAW. United States. An auctioneer has not only possession of the goods which he is employed to sell, but he has an interest coupled with that possession. He has a special property in the goods, and a lien upon them for the charges of the sale, and his commission, and the auction duty. He may sue the buyer for the purchase money, and if he gives credit to the vendee, and makes delivery without payment, it is at his own risk. If the auctioneer has notice that the property he is about to sell does not belong to his principal, and he sells notwithstanding the notice, he will be held responsible to the owner for the amount of sale. So, if the auctioneer does not disclose the name of his principal at the time of the sale, the purchaser is entitled to look to him personally for the completion of the contract, and for damages on its non-performance. A bidding at an auction may be retracted before the hammer is down. Every bidding is nothing more than an offer on one side, which is not binding on either side until it is assented to, and that assent is signified on the part of the seller by knocking down the hammer. As regards the employment of puffers, the decisions of the Courts seems to be, that the employment of a bidder by the owner would or would not be a fraud, according to circumstances tending to show innocence of intention, or a fraudulent design. If he was employed bond fide to prevent a sacrifice of (a) Curtis v. Barclay, 5 B. & C. 141; Man v. Shiffner, 2 East, 529; Drinkwater v. Goodwin, Cowp. 251. (b) Maltby v. Christie, 1 Esp. 340; Coggs v. Bernard, 2 Ld. Raym. 917. the property under a given price, it would be a lawful transaction, and would not vitiate the sale. But if a number of bidders were employed by the owner to enhance the price by a pretended competition, and the bidding by them was not real and sincere, but a mere artifice in combination with the owner to mislead the judgment and inflame the zeal of others, it would be a fraudulent and void sale. So, it will be a void sale if the purchaser prevails on the persons attending the sale to desist from bidding, by reason of suggestions by way of appeal to the sympathies of the company. CHAPTER XI. INTRODUC- Utility of Origin of bills. BILLS OF EXCHANGE. BILLS of exchange are the most useful of all commercial instruments, and have greatly contributed to the extension of trade by facilitating commercial operations, economising capital, assisting credit, and promoting the circulation of wealth. They represent money, merchandise, and labour, and are themselves a merchandise upon which large gains and losses are realised. Economically and commercially they fulfil most useful functions, whilst they are indispensable for the transmission of funds from town to town, and from country to country, and they act as securities for the numerous and complicated transactions of trade. The origin of bills of exchange is not accurately ascertained. They were unknown to the ancients. In Greece and Rome there were money-changers, and they even caused money to pass from place to place,-as did Cicero, when he sent his son to Athens, to study, but they did so by letters of credit. It was not till the middle age that the instrument now known as "bill of exchange" was introduced. Some writers ascribe the invention to the Jews. When banished from France, where they had left their property deposited in the hands of their friends, they found no other mode to recover that money than by making use of travellers and pilgrims to whom they gave letters, in a concise style, for the purpose. They afterwards initiated in this new industry the merchants of Amsterdam, and thence it spread throughout Europe. Other writers attribute the invention to the Ghibelines, who, when chased from Florence by the Guelphs, having taken up their residence at Amsterdam, began there to trade in bills of exchange, which they called Polizza di Cambio. It is, however, probable that bills of exchange were never invented in their present perfect form, but were suggested by a variety of causes, and subjected to gradual improvements. Though known as far back as in the thirteenth and fourteenth centuries, it is probable that their form was very different, and that they did not settle down into the present model or uniform instrument till long after. We know, moreover, that they were not made payable to order till long after the use had become almost universal. of bills in England. In England bills of exchange must have been known as early Introduction as A. D. 1367, inasmuch as King Edward L., in that year, ordered certain money collected in England for the Pope not to be remitted to him in coin or bullion, but by way of exchange (a). In 1381, bills of exchange were expressly referred to in an Act of Parliament of Richard II. SECTION 1. NATURE AND REQUISITES. BRITISH LAW. A bill of exchange is an open letter of request, addressed by Definitions. one person to a second, desiring him to pay, at a certain time therein named, a sum of money, to himself, or to a third person, or to any other to whom himself or that other person shall order it to be paid, or to the bearer. A promissory note is a written engagement by one person to pay another person therein named, or to any other to whom he shall order it to be paid, absolutely and unconditionally, a certain sum of money at a time specified therein. By the statute of Anne (b), promissory notes were put on the same footing as bills of exchange, and by the statute of William III. (c), inland bills were regarded as foreign bills, except that they need not be protested for non-payment. The person who makes the bill is called the drawer, the person to whom the bill is addressed is called the drawee, and the person in whose favour it is drawn is the payee. If the drawee (a) Rymer Fodera, vol. ii. p. 1042. In 1394 an ordinance was passed in Barcelona on bills of exchange; and in 1462, Louis XI. issued the first decree on the subject in France. Baldus, an Italian jurist, names bills of exchange as far back as 1328, and in India they (b) 3 & 4 Anne, c. 9. Designation of parties in the bill. |