Licences to be

tion.

duction

of auctioneer's licence at

time of auction.

he will not incur the penalty by merely selling by auction (w).

The holder of a licence should be constantly ready to

promptly produce it to the proper authorities. A person licensed to produced carry on a business or to sell goods is liable to a penalty of for inspec £20, if he does not produce and deliver his licence to an officer of excise demanding it, within a reasonable time after Non-pro- such demand has been made (2); 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 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 and then in force, or does not immediately deposit with such officer the sum of £10, he may be arrested and detained by an officer of the peace (y), conveyed before a magistrate and committed to gaol for any time not exceeding one calendar month; and such imprisonment 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 deposit produces, within a week from the date of the sale, to the officer with whom he deposited the money a proper auctioneer's licence to him granted and

Dues pay able by brokers.

of £5 is payable to the city chamberlain upon admission, and a like sum annually; 6 Anne, c. 68; 57 Geo. III. c. lx.

(w) Wilkes v. Ellis, 2 H. Bl. 555. The difference between an auctioneer and a broker is twofold: an auctioneer sells at public auction, a broker by private bargain; and an auctioneer sells only, a broker both buys and sells; see Story, Ag. § 27. As to the difference between brokers and factors, see Baring v. Corrie, 2 B. & Ald. 137; Sm, Merc. Law, 106, 107; as to brokers and factors generally: 2 St. Com. 76 et seq.; Macculloch's Commercial Dictionary, 204 et seq., 601 et seq.; Russ. Merc. Ag. passim.

(x) 6 Geo. IV. c. 81, s. 28.

(y) It will not escape notice that, although the person to demand production of the licence is a revenue officer, the arrest must be made by an officer of the peace.

in force at the time of the sale, the money is to be immediately returned to him (2).

name and

An auctioneer is not obliged, when licensed, to put up his As to name, with "licensed auctioneer" after it, over his door, as putting up he would have to do, if he were a licensed person required оссираby the excise laws to make entry of his premises (a); but he tion. 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 auctioneer, or even that he is an auctioneer (b).

The auctioneer's relations to the revenue are not limited Board to be exhibited

to questions of licence. He will run the risk of being during mulcted in yet another penalty of £20, if he does not, during sale. 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).

(2) 8 & 9 Vict. c. 15, s. 8. For form of warrant of commitment in such case, see Form 4, p. 288, post.

(a) 6 Geo. IV. c. 81, s. 25.

(b) Ibid.

(c) 8 & 9 Vict. c. 15, s. 7. As to the recovery of penalties, and the Recovery collection and management of excise duties generally, see 7 & 8 Geo. IV. of penalc. 53; 4 & 5 Will. IV. c. 51; 4 Vict. c. 20; 11 & 12 Vict. cc. 43, 121; ties, and 15 & 16 Vict. c. 61; 18 & 19 Vict. c. 78; 23 & 24 Vict. c. 113; 26 excise Vict. c. 7; 26 & 27 Vict. c. 33; 28 & 29 Vict. cc. 96, 104; 31 & 32 matters Vict. c. 124; 42 & 43 Vict. c. 49; 43 & 44 Vict. cc. 19, 20, 24; R. v. generally. Commissioners of Excise, 2 T. R. 381 (mandamus); R. v. Turner, 5 M. & S. 206 (burden of proof of having licence; cf. Paley on Convictions, 6th ed., 129, and the cases cited arguendo in Toleman v. Portbury, L. R. 5 Q. B. 291); R. v. Beadle, 7 E. & B. 492; 26 L. J. M. C. 111 (costs of appeal). As to mitigation of penalties: 7 & 8 Geo. IV. c. 53, s. 78; 22 Vict. c. 32; rewards to informers: 6 Geo. IV. c. 81, s. 29; 7 & 8 Geo. IV. c. 53, s. 103; 31 & 32 Vict. c. 124, ss. 1, 2.

Auctioneer generally an agent.

Whose

CHAPTER II.

THE AUCTIONEER'S AGENCY IN GENERAL, AND

PARTICULARLY HIS AUTHORITY TO SELL.

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 agent 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 memorandum of the transaction will bind both parties, as being a note in writing sufficiently signed within the Statute of Frauds (b).

His autho

No written authority is necessary to enable him to perrity, how form any act within the scope of his agency (c).

conferred.

(a) Flint v. Woodin, 9 Hare, 618; 16 Jur. 719; Sugd. 44; Dart, 177. An auctioneer trustee in bankruptcy cannot, nor can his partner, act as auctioneer in the sale of the bankrupt's estate without the consent of the committee of inspection; G. R. 1870, r. 119.

(b) Simon v. Motivos, 3 Burr. 1921; 1 Bl. R. 599; Hinde v. Whitehouse, 7 East, 558; 3 Smith, 528; Buckmaster v. Harrop, 13 Ves. 472; Emmerson v. Heelis, 2 Taunt. 38; White v. Proctor, 4 Taunt. 209; Kemeys v. Proctor, 3 V. & B. 57; 1 J. & W. 350; Farebrother v. Simmons, 5 B. & Ald. 333; Bird v. Boulter, 4 B. & Ad. 443; 1 N. & M. 313; Eden v. Blake, 13 M. & W. 615, 619; Peirce v. Corf, L. R. 9 Q. B. 214; 43 L. J. Q. B. 52; Story, Sal. § 79; cf. Wood v. Midgley, 2 Sm. & G. 315. "He is an agent for each party in different things, but v. Milling- not in the same thing. When he prescribes the rules of bidding and the terms of the sale, he is the agent for the seller; but when he puts down the name of the buyer, he is agent for him only "—per Heath, J., in Williams v. Millington, 1 H. Bl. 81, 85.

Williams

ton.

(c) See Rucker v. Cammeyer, 1 Esp. 105; Coles v. Trecothick, 9 Ves.

Mere implication will suffice, without express words, to in- Implied authority. vest 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 bonâ fide purchaser, because an authority to sell will be presumed against him (ƒ).

tive autho

rity.

A want of original authority may be supplied by the Construcperson 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 (h). Simple acquiescence, with knowledge of the fact, but without any overt

234, 250; 1 Smith, 233; Mortlock v. Buller, 10 Ves. 292, 311; Chapman v. Partridge, 5 Esp. 256.

(d) Smith v. East India Co., 16 Sim. 76; Pike v. Wilson, 1 Jur. N. S. 59, where an authority to sell given to an auctioneer was held under the circumstances to justify a sale by auction; Pole v. Leask, 28 Beav. 562; 33 L. J. Ch. 155; Dart, 184.

(e) Pickard v. Sears, 6 A. & E. 469; 2 N. & P. 488. See Story, Ag. § 91.

(f) Chit. Con. 190. An estate agent instructed as to price has no implied authority to sign an open contract on behalf of his principal; Hamer v. Sharp, L. R. 19 Eq. 108; 44 L. J. Ch. 53; Leake, 523.

(g) Kinnitz v. Surry, Paley, P. & A. 171; Cooper v. Smith, 15 East, 103; Soames v. Spencer, 1 D. & R. 32; Maclean v. Dunn, 4 Bing. 722; 1 Moo. & P. 761; Gosbell v. Archer, 2 A. & E. 507; 4 N. & M. 485; 1 H. & W. 31; London & Birmingham Ry. Co. v. Winter, Cr. & Ph. 57; De Beil v. Thompson, 3 Beav. 469; Foster v. Bates, 12 M. & W. 226; 1 D. & L. 400; 13 L. J. Ex. 88; 7 Jur. 1093; Wilson v. Tummon, 6 Man. & G. 236; 6 Sco. N. R. 894; 1 D. & L. 513; 12 L. J. C. P. 306; Blackwood v. Borrowes, 4 Dru. & War. 441, 472; Leake, 276, 463.

(h) Spittle v. Lavender, 2 B. & B. 452; 5 Moore, C. P. 270.

The autho

rity to sell

act of adoption, may raise a presumption of assent and make the contract binding on the alleged principal (). 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 administrator 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).

It is, however, very desirable that the auctioneer's should be authority to sell should be in writing (7); and if the prinin writing. cipal be a corporation, then it should be under the corporate seal (m). Where there is merely a parol authority, it will frequently be difficult to prove the existence and extent of it (n); and this consideration applies equally to the case of the auctioneer being employed as agent to purchase the property (). The terms upon which the sale is to be con ducted 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 (p). If a

(i) Bigg v. Strong, Sm. & G. 592; 4 Jur. N. S. 108, 983. (j) Foster v. Bates, 12 M. & W. 226; 1 D. & L. 400; 13 L. J. Ex. 38; 7 Jur. 1093; Hood v. Lord Barrington, L. R. 6 Eq. 218.

(k) Wilson v. Tummon, 6 Man. & G. 236; 6 Sco. N. R. 894; 1 D. & L, 513; 12 L. J. C. P. 306; Dart, 188.

(7) See forms of authority, post, p. 290, Forms 1, 2. See also form of power of attorney to sell an estate, ibid., Form 3.

(m) Mayor of Kidderminster v. Hardwick, L. R. 9 Ex. 13; 43 L. J. Ex. 9.

(n) Sugd. 145.

(o) The seller's agent cannot act as agent for the buyer, unless expressly authorized by the latter; Durrell v. Evans, 1 H. & C. 174; 31 L. J. Ex. 337; 7 L. T. N. S. 97; 10 W. R. 665; 7 Jur. N. S. 585; 9 Jur. N. S. 104; Murphy v. Boese, L. R. 10 Ex. 126; cf. Graham v. Musson, 7 Sco. 769; 5 Bing. N. C. 603; Graham v. Fretwell, 4 Sco. N. R. 25; 3 Man. & G. 368.

(p) See form of letter to vendor for instructions as to conduct of sale, post, p. 291, Form 4.