(Sic.)

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 (g), be deemed to carry on the trade or business of an b. Licence auctioneer and shall be required to take out" an excise

to be

annually

renewed.

of licence.

d. Penalty for not

taking out

or not renewing licence.

licence for that purpose; 66 and every such licence shall be renewed annually ten days at least before the expiration c. Expiry 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 auctioneer 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 aforesaid without taking out such licence as by this act directed, shall, except as heree. Duty on inafter in this act mentioned (h), forfeit £100; provided always that on every such licence," at whatever 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."

licence

indivisible.

Sect. 2.

By the second section an annual duty of £10 is imposed Amount of upon "every licence to be taken out by every person exerduty. cising or carrying on the trade or business of an auctioneer in any part of the United Kingdom."

Summary

The effect of these two sections, stated summarily, is as

(g) Viz., in 8. 5; see infra, pp. 10-12.
(h) Ibid.

follows subject to certain exemptions, every person offering of ss. 2 & 4. property for sale by auction must, under a penalty of £100, be provided with an auctioneer's licence, upon which a duty of £10 is payable, and which is only valid for a year, or part of a year, ending on the 5th of July.

The owner of property advertised for sale, on a day to R. v. which the sale had been adjourned, invited the intending Taylor. 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 purchaser, 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).

vitiated by

auc

want of

Although the preamble of the act which first instituted Sale not auctioneers' licences (j) recited that (in the opinion of the Commons) "it would be for the advantage of the public that tioneer's all persons using or exercising the trade or business of an auc- licence. tioneer should be obliged to take out a licence for that purpose, specifying their 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 recovering his remuneration as well as his expenses (k).

(i) R. v. Taylor, M'Cle. 362; 13 Price, 636; and see the various kinds of auctions described ante, pp. 2 and 3. A sale by tender has been held not to be a sale by auction within the meaning of an order of court directing a sale of the latter kind; Berry v. Gibbons, L. R. 15 Eq. 150; 42 L. J. Ch. 231; but see Barlow v. Osborne, 27 L. J. Ch. 308; Waterhouse v. Wilkinson, 1 H. & M. 636.

(j) 17 Geo. III. c. 50.

(k) Palk v. Force (12 Q. B. 666; 17 L. J. Q. B. 299; 12 Jur. 797)

Exemptions from licence :

a. Certain

auctions under

process.

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 commissioners of excise and of inland revenue respectively (7); and at the present time no auctioneer's licence is necessary in the case of (m) :—

(1.) Sales under orders of the Chancery Division of the High Court of Justice, by persons duly appointed to effect such sales (n);

(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 (0);

(3.) Persons selling goods under the authority of 6 Geo. IV., c. 48, or 7 Will. IV. & 1 Vict. c. 41,

being distinguishable. As to when and how far a statute is to be regarded
as rendering a transaction illegal, see Taylor v. Crowland Gas Co., 10 Ex.
293; 23 L. J. Ex. 254; 18 Jur. 913; 2 C. L. R. 1247; Fennell v.
Ridler, 8 D. & R. 204; 4 B. & C. 406; Johnson v. Hudson, 11 East,
180; Brown v. Duncan, 5 Man. & R. 114; 10 B. & C. 93; Bailey v.
Harris, 12 Q. B. 905; 18 L. J. Q. B. 115; 13 Jur. 341; Smith v.
Mawhood, 14 M. & W. 452; 15 L. J. Ex. 149; Redmond v. Smith, 7 Man.
& G. 457; 8 Sco. N. R. 250; 13 L. J. C. P. 159; 8 Jur. 711; Scarfe v.
Morgan, 4 M. & W. 270; 1 H. & H. 292; Smith v. Lindo, 5 C. B. N.
S. 587; 27 L. J. C. P. 335; 4 Jur. N. S. 974; Benj. 427, 432; Poll. Con.
258, 262. Quære, as to the effect of non-compliance with 8 & 9 Vict. c.
15, s. 7 (as to exhibiting name and address during sale, see infra, p. 19);
where note the words "so that all persons may easily read the same
"and
the circumstance that there is a penalty for every offence.

(7) Under the authority, apparently, of 7 & 8 Geo. IV. c. 53, s. 2, and 12 & 13 Vict. c. 1, s. 3. See note (x) infra, p. 12.

(m) The exemptions mentioned in the text are created by "Boards Orders," except where the contrary is indicated in the notes.

(n) See 15 & 16 Vict. c. 80, ss. 1, 36; c. 87, s. 42. The power to have a sale of real estate made in chambers before the chief clerk has fallen into disuse; see Pemberton v. Barnes, L. R. 13 Eq. 349; 41 L. J. Ch. 209. As to sales by the Chancery Division generally, see post, pp. 237 et seq.

(0) See 9 & 10 Vict. c 95, s. 106; 12 & 13 Vict. c. 101, s. 10. As to sales under process of the County Courts generally, see post, pp. 250, 251.

acts relating to the recovery of small debts in
Scotland (p);

(4.) Sales, by bailiffs, of goods taken in execution under
decrees of civil bill courts in Ireland (9);

(5.) Any person selling goods under a distress for non- b. Auction
payment of rent or tithes to a less amount than

£20 (r);

(6.) Any person selling fish, where first landed, upon
sea-shore (s);

(7.) Sales" by ticket" of mineral ore;

(8.) The letting of lands or any interest therein;

the

(9.) The letting of tolls to farm, by the trustees of the

tolls or their clerks ;

under
distress for
less than
£20.

c. Certain
auctions of
particular
kinds of

property.

official

(10.) Officers of the customs conducting sales of seizures d. Certain under the direction of the commissioners of auctions. customs ;

(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,
under the direction of the secretary of state for

the war department, the effects of officers and

(p) 8 & 9 Vict. c. 15, s. 5.

(g) 14 & 15 Vict. c. 57, s. 146. Section 1 of this act repealed 6 & 7 Will. IV. c. 75, and 7 Will. IV. and 1 Vict. c. 43, sales under which were likewise included among the exemptions comprised in s. 5 of 8 & 9 Vict.

c. 15.

(r) 8 & 9 Vict. c. 15, s. 5.

(s) 33 & 34 Vict. c. 32, s. 5.

Licence, by whom granted.

soldiers 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 (t), whether such officers be officers of customs or not, provided they are employed officially.

The 5th section of the act of 8 & 9 Vict. c. 15 (u), 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 specified, 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 £20." There does not, however, appear to be any such act (w).

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. 1, under the control of the commissioners of inland revenue (x). By

(t) 17 & 18 Vict. c. 104.

(u) See Appendix, post, p. 388.

(v) See preceding page.

(w) It is perhaps due to an oversight of the legislature that the Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49), does not relieve any one selling by auction under its 43rd section from the obligation to take out an auctioneer's licence.

(x) 12 & 13 Vict. c. 1, s. 3. The 1st section of the act consolidated the boards of commissioners of excise and of stamps and taxes into one board of commissioners of inland revenue.