of , their damages and costs in a certain action, lately commenced by them, against the said P. Q., and also for the costs of and occasioned by the said reference; and, upon payment of the said sum I do award and direct, that the said parties shall duly execute and deliver to each other mutual releases in writing of all and every action and actions, cause and causes of action, damages, claims, and demands, whatsoever, subsisting or depending between them, on or before the said IN WITNESS, &C., (as in n. 115.) day of 117. AWARD by REFEREES. Short Form. last. WE, the undersigned, referees appointed by the within rule of court, [or by the within agreement of submission,] having notified and met the parties, and heard their several allegations, proofs, and arguments, and duly considered the same, do award and determine that the within named A. B. shall recover of the within named C. D. the sum of , together with the costs of suit, to be taxed by the court, and the costs of this reference, which last amount to the sum of and that the same shall be in full of all matters within referred to us. , IN WITNESS, &c., (as in n. 115.) E. F. 118. RELEASE to be executed by PARTY to an ARBITRATION, when required in the AWARD. of KNOW ALL MEN by these presents: That I, A. B., of the , , for and in consideration of the sum of one dollar to me in hand paid by C. D., of and in pursuance of an award made by E. F., L. M., and S. T., arbitrators between us the said A. B. and C. D., and bearing date the day of , , one thousand eight hundred and do hereby release and forever discharge the said C. D., his heirs, executors, and administrators, of and from all actions, cause and causes of action, suits, controversies, claims, and demands, whatsoever, for or by reason of any matter, cause, or thing, from the beginning of the world down to the day of , one thousand eight hundred and (Insert the date of the bonds of arbitration or of the submission.) IN WITNESS WHEREOF, I have hereunto put my hand and seal, day of , one thousand eight hundred and this In the presence of) A. B. [SEAL.] 119. ARBITRATION CLAUSES. THAT any dispute which shall arise between the said and , or between either of them, and the executors, administrators, or assigns of the other of them, or between their respective executors, administrators, or assigns, touching the construction of these presents, or any thing herein contained, or any account, valuation, appraisement, or division of assets, debts, or liabilities, or any other thing in any wise relating to the said copartnership, or the trade, business, or affairs thereof, [or to the premises, as the case may be,] shall be referred to the arbitration of three indifferent persons, one to be chosen by each of the parties disputing, within one calendar month after either of them shall have made to the other a requisition to that effect, and the third by the two persons first chosen, within one calendar month after they shall have been themselves chosen. 120. THAT, if either of the parties disputing shall, in writing, require the other of them to refer the dispute to arbitration, and to name an arbitrator, and if the party to whom such requisition is made shall, for one calendar month after such requisition, neglect or refuse to comply therewith, or shall name a person who shall neglect or refuse to act as arbitrator, it shall be lawful for the person chosen arbitrator on behalf of the party making such a requisition, by writing under his hand, to appoint some person to act as arbitrator on behalf of the other party, and such two persons shall name the third arbitrator. 121. THAT the parties disputing, and all persons claiming through them, respectively, shall, if required by the arbitrators, or any two of them, attend personally, and submit to be examined relative to the matters or things referred to arbitration, and produce to and deposit with the arbitrators, or any two of them, all deeds, letters, papers, writings, and evidence relative thereto, and do all other things which the arbitrators, or any two of them, shall require. 70 CHAPTER III. OF SALES BY AUCTION. NOTES. 122. A right to bid once at an auction sale is often reserved by the vendor in the conditions; but this will not authorize him to appoint a puffer to screw up the price, and if he does so the purchaser may rescind the contract altogether; and, where a sale is advertised to be "without reserve," if any one bids on behalf of the vendor, then also the purchaser may rescind the contract. Nor can a vendor employ more than one person to bid for him; for, if he do, it will be considered as puffing, and vitiate the sale accordingly. 123. If purchaser disparage the property, in order to deter others from competing with him at the sale, he will not only be disabled from compelling specific performance of the contract or maintaining an action for its non-performance, but will be himself liable to an action for the slander of the vendor's title. 124. A valid sale at auction may be completed by knocking down the hammer when goods only are sold; but, in the sale of real estate, no binding contract is made, within the meaning of the statute of frauds (29 Car., ii., c. 3,) until the auctioneer has attached his signature to the conditions, which, as the lawfully authorized agent of both parties, he is capable of doing, without any appointment in writing. The usual practice is, as we have before remarked, to have a short form of contract attached to the conditions of sale, which, when signed by the necessary parties, becomes embodied with the terms of the conditions, and the whole forms one entire contract. This is the proper and most regular course of proceeding; but a simple entry of the purchaser's name by the auctioneer, referring to the lot for which he bids, will be a sufficient signing on behalf of the purchaser to be binding on him, as will also the auctioneer's signature to a receipt for the deposit, if it refers sufficiently to the contracting parties and to the property sold, or to the conditions, so as to show the nature of the contract. 125. A bidding may be retracted any time before the hammer falls, either by word or gesture; but, whichever it be, it must be decisive, and readily understood; for otherwise it will be only like a mere mental reservation and amount to nothing, but the bidder will still be held to his bargain. 126. A condition that biddings shall not be retracted is invalid. 127. A deposit is usually stipulated for in the conditions of sale, and that it shall be paid either into the hands of the auctioneer or of the vendor's agent; but, in case of the sale of real property, the more usual practice is to direct that the deposit be paid to the vendor's agent. If paid to the auctioneer, he is considered as holding it as a stakeholder, both for the vendor and the purchaser; and, if he pays it over to the vendor without the direction of the purchaser, he becomes personally responsible for its return in case the title should prove defective. Under such circumstances the auctioneer may support an action against the vendor for the recovery of the money so paid to him; but he will not be entitled to recover the costs of defending an action brought by the purchaser for the recovery of it, unless the vendor himself has authorized the defense. 128. Disputes as to paying over deposit are best prevented by providing, in the conditions of sale, that it shall be paid into the hands of the agent of the vendor; but, in the absence of any express provision to that effect, the auctioneer and [every depositary] has the power, in case both vendor and purchaser claim the deposit, to protect himself, under the statutes of interpleader, 7 Vic., с. 30; 9 Vic., c. 56; 20 Vic., c. 57; (see Revised Statutes, Cap. XXIX., p. 339;) or he may obtain an injunction in equity on paying the deposit into court; but, to do this, he must pay in the full amount of the deposit-for, should he insist upon retaining out of it his own commission, or any other claims to which he may consider himself entitled, he will thereby debar himself from all equitable assistance. Nor can an auctioneer protect himself under the interpleader acts, where he sells the property by private contract, after the auction is over, although it be sold subject to the conditions of sale. 129. Interest on the deposit is not generally payable by the auctioneer, because he is in the position of a stakeholder, and therefore bound to produce the money at any time it may be called for; nor, it seems, will it make any difference if the vendor were [without the purchaser's concurrence,] to give the auctioneer notice to invest the money in government securities, and although interest may actually have been made of it. But the auctioneer will be liable to pay interest on the deposit if; and 1st. The contract has been rescinded by failure of the condition, 2d. If a demand of the deposit has been made, and he has refused to return it; though even then, according to the opinion expressed by Borough J., in Curling v. Shuttleworth, (9 Bing., 134,) it must be proved that the auctioneer actually made interest of the money. The better plan therefore is, where some time must necessarily elapse before the purchase is completed, for the parties to arrange that the deposit shall be paid-in to some bankers, who will allow interest for it as long as it is in their possession. 130. Auctioneer is personally liable if, without the authority of his employer, he gives credit to the purchaser for the deposit or any other moneys in respect of the purchase, and will be bound to make good any loss incurred thereby; and he will also be responsible for any securities which he may take from the purchaser-such as bills of exchange, promissory notes, or the like; nor has he any authority, under common conditions, to receive more money than the amount of the deposit. 131. The auctioneer is personally liable also if he do not name his principal and it should turn out that he has not the means of fultilling his contract. He must also be careful to give his own name; as the act 8 Vic., c. 15, expressly directs the auctioneer, under a penalty of £20, to suspend or affix.. 132. If the auctioneer becomes insolvent during the progress of the sale, the loss must be borne by the vendor, whose agent he properly is for every purpose connected with the auction, and appointed by him for the very purpose; for, as far as the purchaser is concerned, an auctioneer can only be considered as having a kind of special authority to sign the purchaser's name to the bidding. In every other respect the auctioneer is the agent of the vendor by whom he is selected, under whose authority he acts, and who alone can be supposed to have any confidence in him. 133. An auctioneer is paid for his services either by special contract between him and the vendor or, in the absence of such contract, by a fair quantum meruit for his services, which will be determined by the usage of trade; but, if the payment is dependent upon a contingency, it cannot be recovered until the contingency actually takes place. 134. An auctioneer has a lien on the deposit if he conducts the business properly, and not on the deposit only, but on any goods or effects of the vendor in his possession, for his commission and expenses; but, if he is negligent, so as to cause injury to his employer, he will be entitled to no remuneration whatever for his services. 135. The statute of fraud does not apply to sales under a decree, because they are a judicial act, and therefore such sales will been forced, although the buyer should omit to sign his name to the bidding-paper attached to the conditions of sale. Of SALES by PRIVATE CONTRACT. 136. All agreements for the sale of real estate are required by the statute of frauds to be in writing, signed by the party to be charged, or by some other person by him thereunto lawfully authorized. |