Reopening the bid

dings.

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.

The certificate of the result of the sale is not absolute until eight clear days have elapsed from the date of its being filed until that interval has passed, the highest bidder has not become the purchaser with the rights and liabilities of an owner (p). Formerly the highest bidder was very uncertain of his bargain during this interval; for the Court would order the biddings to be opened, and the estate again put up for sale, merely on another person offering a substantially higher price (); 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 virtue of any order of the High Court of Chancery shall from and after the time appointed for the commencement of this act (s) be discontinued, and the highest bonâ 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

(o) See supra, p. 241.

(p) 15 & 16 Vict. c. 80, s. 34; Cons. Ord. XXXV. r. 52; Ex parte Minor, 11 Ves. 559; Twigg v. Fifield, 13 Ves. 517; Palmer v. Goren, 4 W. R. 688; Bridger v. Penfold, 1 K. & J. 28; Barlow v. Osborne, 6 H. L. C. 556; but as to life estates, see Anson v. Towgood, 1 J. & W. 637; Vesey v. Elwood, 3 Dr. & War. 74; as to reversions: 1 Dav. 598. (9) See Millican v. Vanderplank, 11 Hare, 136; Ewing v. Waite, L. R. 1 Eq. 440.

(r) 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.

(s) The 1st of August, 1867.

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." Misconduct, to cause the biddings to be opened since the act, must be such misconduct as borders on fraud (†); if, however, such misconduct be proved, the Court, it seems, will set aside the purchase, though absolutely confirmed (u). Where the party conducting the sale purchased, 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).

tuting purchaser.

Either before or after the certificate has become binding, Substithe Court will discharge the purchaser and substitute another, upon the latter first bringing the purchase-money into court (w). The application for this purpose is made by summons (x).

be pursued where

Where the whole or any part of the property remains Course to unsold, it may be again offered for sale in the same manner, and no new order of the Court will be necessary; but leave no sale must be obtained at chambers, when a new time will be

(t) Griffiths v. Jones, L. R. 15 Eq. 279; 42 L. J. Ch. 478; Delves v. Delves, L. R. 20 Eq. 77; Brown v. Oakshott, 38 L. J. Ch. 717.

(u) Guest v. Smythe, L. R. 4 Ch. 551; 39 L. J. Ch. 536.

(b) Sidny v. Ranger (1841), 12 Sim. 118; see Dart, 1196. (w) Miller v. Smith, 6 Hare, 609.

(x) Seton, 1409.

effected.

Resale.

Sale, by

order, of personal property.

Sale of goods taken in execution.

appointed, and the necessary modifications made in the particulars and conditions (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 (2).

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 otherwise (a).

By the County Courts Act, 1846 (b), s. 106, the high bailiff of a County Court has power to appoint brokers and appraisers for the purpose of selling or valuing goods taken in execution under the act, and to direct security to be taken from them for the faithful performance of their duties; Who sells. and no such goods may be sold to satisfy the warrant of execution, except by a broker or appraiser so appointed. Custody of Until sale, such goods must be deposited in a fit place, or a goods until fit person approved by the high bailiff may be put in pos

sold.

(y) Dan. Ch. Pr. 1163.

(z) Berry v. Gibbons, L. R. 15 Eq. 150; 42 L. J. Ch. 231.

(z) Dart, 1204, referring to Ward v. Cooke, 9 Sim. 87; Humphries v. Roberts, 6 Jur. 680.

(a) County Court Rules, 1875, O. XVIII. r. 15; cf. O. 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 direct, superintend such sale, detention or preservation."

(b) 9 & 10 Vict. c. 95.

fee.

sale;

ment.

session of them (c). The fee for keeping possession until Possession 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 (d); 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 Time of 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 (f); nor are they to be appraised until of appraisethe fifth day of the bailiff's holding possession, "unless where the goods are of a perishable nature, or are sold at the request of the party before the expiration of four days, or unless the goods are removed" (g). More must not Quantity to be sold than is necessary to satisfy the execution (). Where goods seized under County Court process are Claims of claimed by a third party, it will be lawful to proceed to a ties to sale of the goods notwithstanding the claim, unless the goods. claimant makes a deposit in accordance with the 72nd section of 19 & 20 Vict. c. 108 (). The broker or appraiser is Charges for entitled to have out of the produce of the goods sold, six- appraising pence in the pound on the value of the goods, for appraisement, over and above the stamp duty (j), and, for advertise

(c) 9 & 10 Vict. c. 95, s. 106. The high bailiff may from time to time appoint such and so many persons for keeping possession as shall appear to him to be necessary, and may direct security to be taken from them; ibid. (d) Schedule A to Treasury Order of 26 October, 1875.

(e) County Court Rules, 1875, 0. XXXVI. r. 7.

(ƒ) 9 & 10 Vict. c. 95, s. 106.

(g) County Court Rules, 1875, O. XXXVI. (Costs), r. 8.

(h) 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.

(2) The County Courts Act, 1856; Cramer v. Matthews, 7 Q. B. D. 425. See the text of the section, post, p. 441.

(j) See Chapter III. ante, p. 43.

be sold.

third par

and selling.

What is a distress.

Sale under, distress usually by auction.

ments, catalogues, 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 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 (c).

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 distress, but Auctioneer generally an agent or bailiff is employed; and it is a common practice in the country, especially in the case of small holdings, to employ an auctioneer as bailiff, and to entrust the whole management of the distress to him.

often bailiff.

Distress warrant.

The bailiff should receive from his employer an au

(k) 9 & 10 Vict. c. 95, s. 106. As to the remuneration of several brokers employed, see the text of the section, post, p. 440. As to licence, see ante, p. 10.

(a) Gilbert on Distresses, 35.

(b) 2 W. & M. sess. 1, c. 5.

(c) Gilbert (on Rents), 92; 3 Bl. 6.