amount to acts of delivery, sufficient to take away the vendor's lien, or right of stoppage in transitu. On the other hand, if the delivery be not completed, and some other act remains to be done by the consignor, the right of stoppage is not gone. If the vendee intercepts the goods on their passage to him, and takes possession as owner, the delivery is complete, and the right of stoppage is gone; but if the goods have arrived at the port of delivery, and are lodged in a public warehouse, for default of payment of the duties, they are not deemed to have come to the possession of the vendee, so as to deprive the consignor of his right. 3. A resale of the goods by the vendee does not of itself, and without other circumstances, destroy the vendor's right of stoppage in transitu. But if the vendor has given to the vendee documents sufficient to transfer the property, and the vendee, upon the strength of them, sells the goods to a bona fide purchaser without notice, the vendor would be divested of his right. The delivery of the bill of lading transfers the property to the consignee, and the assignment of it by the consignee by way of sale or mortgage, will pass the property, though no actual delivery of the goods be made, provided they were then at sea. As a general rule, no agreement made between the consignee and his assignee can defeat or affect this right of the consignor; and the consignor's right to stop in transitu is prior and paramount to the carrier's right to retain as against the consignee. A factor having only authority to sell, and not to pledge the goods of his principal, cannot divest the consignor of the right to stop the goods in transitu, by endorsing or delivering over the bill of lading as a pledge, any more than he could by delivery of the goods themselves by way of pledge; and it is the same thing whether the endorsee was or was not ignorant that he acted as a factor. If the assignee of the bill of lading has notice of such circumstances as render the bill of lading not fairly and honestly assignable, the right of stoppage as against the assignee is not gone; and any collusion or fraud between the consignee and his assignee will, of course, enable the consignor to assert his right. But the mere fact that the assignee has notice that the consignor is not paid, does not seem to be of itself absolutely sufficient to render the assignment defeasible by the stopping of the cargo in its transit, if the case be other wise clear of all circumstance of fraud; though, if the assignee be aware that the consignee is unable to pay, then the assignment will be deemed fraudulent, as against the rights of the consignor. The buyer, if he finds himself unable to pay for the goods, may, before delivery, rescind the contract with the assent of the seller. But this right of the buyer of rejecting the goods, subsists only while the goods are in transitu. After actual delivery, the goods become identified with his property, and cannot, in contemplation of bankruptcy, be restored to the seller; nor can he interfere and reject the goods though in their transit after an act of bankruptcy committed, for this would be to give a preference among creditors (a). SECTION VII. SALES BY AUCTION. BRITISH LAW. A sale by auction is a sale where goods are offered and sold Definition. to the highest bidder. The old Acts relating to the duty on auctioneers' licences defined an auction to be a sale of any estate, goods, or effects whatsoever by outcry, knocking down of hammer, by candle, by lot, by parcel, or by any other mode of sale at auction, or whereby the highest bidder is deemed to be the purchaser (b). auctioneer. An auctioneer is the person by whom such sale is conducted, Who is an and whose duty it is to state the conditions of sale, to declare the respective biddings, and to terminate the sale by knocking down the thing sold to the highest bidder. Every auctioneer must take out a licence, renewable annually on the 5th July, for which he is charged £10. An auctioneer is a commissioned agent employed to sell or purchase any kind of property at public auctions, and he may act as such without any written authority, though it is very desirable that the authority should be written, as it would otherwise be difficult to prove the existence of it. It is usual in sales by auction to have the conditions upon which the sales are to be effected in writing, and printed, and (a) Kent's Comment. vol. 2, p. 714. (b) 19 Geo. 3, c. 56, s. 3; 42 Geo. 3, c. 93, s. 14. Conditions of sale should be written or printed. read over by the auctioneer immediately before the property is put up for sale, and in preparing them care should be taken that the same give a distinct comprehension and faithful description of the property. The conditions ought to specify amongst other things the sum at which the property is to be put up, how much is to be advanced at each bidding, the amount of deposit required to be paid down, and the time when the goods are to be received and paid for (a). (a) The following are the usual conditions of sale: SALE OF WOOL. Conditions of Sale. 1. The highest bidder to be the purchaser; and if any dispute arise be tween the bidders for any lot, it shall be decided by the broker, unless one of the claimants will advance, in which case the lot shall be put up again. 2. The goods to be weighed off by the warehouse-keepers, and taken away within fourteen days by the buyers, at their own expense, with all faults and defects of whatever kind (including defect or error of description), and to be paid for on or before delivery, 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, until the expiration of the prompt, unless removed from the warehouses in which they were resting at the time of sale, or transferred for re-housing in the books of the warehouse-keepers. 4. The buyers to pay the brokers one shilling per lot, and to deposit £25 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 fourteen days, the before-mentioned deposit to be absolutely forfeited, and the buyer to be further subject to all loss and charges that may accrue on the resale thereof, which it shall be at the option of the broker to effect, either by public sale or private contract. on account one The purchaser is immediately to pay part of the purchase money, together with two guineas to the broker, to bind the bargain, and the residue within after the sale, or at the time of the delivery of the bill of sale, whichever may first happen. On payment of the whole of the 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 exhibited and is hereunto annexed, the said inventory shall be made good as to quantity only. The vessel and stores to be taken from the place and in the condition in which they now lie, without any allowance for weights, lengths, quantities, any defects or errors in description whatsoever. But in case any default shall be made by the purchaser in the payments aforementioned, the money paid in part shall be forfeited to the sole use of the present proprietors, and they shall be at liberty to put up and sell the said ves ceit and misrepresenta tion. If either party be guilty of fraud, or of deceitful misrepre- Effect of desentations, the sale is invalid, and the party grieved may refuse to comply with the contract (a). Where the misdescription, although not proceeding from fraud, is in a material and substantial point, so far affecting the subject matter of the contract 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 of compensation (b). The conditions of the sale by auction, printed and posted up under the auctioneer's box, or in the auctioneer's room, form part of the terms of the contract, and are binding upon the parties as a sufficient notice to the purchaser of the conditions of sale (c). The printed conditions cannot be varied by parol evidence of the verbal statements of the auctioneers at the time of the sale either as to the parcels or qualities of the subject matter of sale. auctioneer. It is the duty of the auctioneer to obtain the best price he Duties of the can by means of competition, and as the authority entrusted to him is personal, he cannot employ another person, even his own clerk, to sell the property without the owner's consent. He must read the substance of the conditions of sale before the sale commences, and should any alteration have been made since they were published, the same should be communicated to the sel again, either by public or private sale, and the deficiency, if any, arising from such re-sale, together with all expenses attending the same, shall be made good by the said defaulting purchaser, who shall be responsible for all losses or charges that may be incurred in consequence of non-compliance on his or their part with this agreement, and neither the broker nor any of the present proprietors, his or their heirs, executors, administrators or assigns shall be anyways accountable or liable to be sued either at law or equity for the said money paid in part and forfeited as aforesaid. If any difference shall arise at the sale, the said vessel shall be put up again. A What is a bidding? bidding may company and reduced into writing. The practice at a sale by auction is that at the time and place appointed the auctioneer, from his desk or rostrum, reads aloud the conditions on which the property will be transferred to the highest bidder; and he then puts up the lots in succession, upon which those who are desirous of purchasing bid one after another, each succeeding offer being higher than the preceding one, and the highest bidder is declared the purchaser, which is signified to the company by the knocking down of a small portable hammer (a). The bidder must be a person capable of contracting. Therefore the bidding of an idiot, lunatic, or other person labouring under a defect in their understanding, may be avoided. The auctioneer himself is incapacitated from bidding (b). A bidding at an auction is a mere offer to purchase, the knocking down of the hammer constitutes the consent of the be withdrawn. seller, and the conclusion of the bargain. Therefore at any time Employment of puffers illegal. before the knocking of the hammer the seller may withdraw his goods, and the bidder may retract his offer (c). It is necessary, however, in such case that the retractation be loud enough to be heard by the auctioneer, otherwise it is not sufficient (d). The seller may employ a person to attend the sale and bid on his account, so that the property may not be sold under value; but he cannot employ more than one person for the purpose. If more are employed to make fictitious biddings it would be illegal. And if an auctioneer inserts in the conditions of sale by auction that the property is to be sold "without reserve," he by so doing contracts with the highest bona fide bidder that the sale shall be without reserve (e). In Scotland the seller cannot legally be a bidder, either directly or by employing another person to bid for him, unless he shall have expressly reserved a right to do so in the conditions of (a) Lowe & W. 2. (b) Ex parte Hughes, 6 Ves. jun. (c) Warlow v. Harrison, 5 Jur. N. (d) Jones v. Nanny, M'Clel. 39. (e) Wheeler v. Collier, M. & M. 125; Howard v. Castle, 6 T. R. 642; Bramley v. All, 3 Ves. jun. 624; Thornett v. Haines, 15 M. & W. 367; Warlow v. Harrison, 29 L. J. Q. B. 14; Robinson v. Wall, 16 L. J. Ch. 401. |