1. Auction, what it is.

2. Auctioneer, his liabilities, power, and remuneration.

3. Agent, his liabilities, power, and remuneration.

4. The deposit.

5. As to puffings and reserved biddings on a sale by auction.

(1.) An auction, in the widest sense of the term, is any mode of sale, however conducted, in which the vendor comes under an express or implied obligation to part with the property to the highest bidder (a): an express direction to sell by auction, would, however, it is conceived, only authorize a sale by auction in the usual mode.

Auction; what it is.

Direction to sell by.

2. As to the auctioneer, etc.

An auctioneer selling without sufficient authority or not disclosing the name of his principal, is liable to the purchaser for his costs, and interest on his purchase-money if lying idle (b): and it has been held that if he sell, without at the time of sale disclosing the name of his principal, he is personally liable in damages for nonperformance of the contract (c).

The auctioneer cannot, without express authority, deleAuctioneer is personally liable, if selling without authority or not disclosing name of principal.

Cannot vary terms after sale.

(a) See Sug. 11.

(b) Sug. 44.

(c) Sug. 50; Franklyn v. Lamond, 4 C. B. 637. gate the sale to another (d); nor can he, after the sale, vary the terms of the contract (e).

Unless especially authorized, he has no power to receive more than the deposit: and if, as respects the deposit or any other part of the purchase-money which he is authorized to receive, he allow the purchaser to retain it, on his personal or any other security, he does so at his own risk (f).

Until the purchase is completed he is a stakeholder of the deposit, and should not part with it except by consent of both vendor and purchaser (g); if both claim it, he may file a bill of interpleader (h); but, in so doing, he must not claim to retain his commission out of it (i); if, however, he be made a defendant to a bill for specific performance, and the deposit be brought into Court, he will be allowed to deduct his charges and expenses, subject to the question as to who shall ultimately bear them (j).

At Law, the costs of an auctioneer who has paid the deposit into Court under an interpleader order, have been allowed out of the deposit, leaving the purchaser to his remedy over against the vendor, although known to be insolvent (k).

After the purchase is completed, or before, with the consent of the purchaser, the auctioneer may, except in very special cases, safely pay the deposit to the vendor, although in embarrassed circumstances (l); if the purchase go off,the purchaser may recover the deposit from the auctioneer in an action at law (m): but cannot claim interest, although the auctioneer may actually have made a profit upon it (n).

Can only receive deposit; is liable if purchaser is allowed to retain it.

Holds deposit as stakeholder: interpleader

Allowed his charges out of deposit in suit for specific performance.

Allowed costs out of, at law.

May pay deposit to vendor after completion.

Is liable to action for, by purchaser, if contract rescinded.

(d) Sug. 13; Henderson v. Barnewall, 1 Y. & J. 387.

(e) See Blackburn v. Scholes, 2 Camp. 343.

(f) Sug. 46.

(g) See Smith v. Jackson, 1 Madd. 620; and see Wiggins v. Lord, 4 Beav. 30, where the deposit was received by the vendor's solicitor.

(h) Fairbrother v. Prattent, Dan. 64.

(i) Mitchell v. Hayne, 2 Sim. & St. 63; and see Bignold v. Audland, 11 Sim. 28.

(j) Annesley v. Muggridge, 1 Madd. 593; Yates v. Farebrother, 4 Madd. 239.

(k) Pitchers v. Edney, 4 Bing. N. C. 721; and see Reeves v. Bar-raud, 7 Scott, 281.

(l) White v. Bartlett, 9 Bing. 378.

The amount of his remuneration, unless (as it should be) settled by agreement, depends upon custom; an agreement that he shall receive nothing if there be no sale, will not deprive him of his commission, if, after he has taken the usual steps preparatory to a sale, the estate be sold by the owner by private contract (o): but where an agent was to receive 100l. for commission, "one third down and the remaining two thirds when the abstract of conveyance is drawn out," and an abstract of title was delivered, but the contract then went off, he was not allowed to recover from his principal the two-thirds which remained unpaid (p).

And the auctioneer's (or agent's) claim to remuneration will be defeated by any negligence on his part, as to the mode of conducting the sale or otherwise, whereby the sale is defeated (q): and an executor or trustee acting as auctioneer in the sale of the trust property cannot charge commission (r).

As a general rule, any loss occasioned by his insolvency or mala fides falls on the vendor as his employer (s): but a fiduciary vendor will not be personally responsible for such loss, if he have acted prudently and under proper advice in the matter (t).

The auctioneer is, as is also his clerk (u), the agent of both vendor and purchaser within the meaning of the 4th section of the Statute of Frauds; and, as such, can hind them by entries in the sale-book (v); and, as respects the purchaser, the rule seems to be the same although he bid by an agent (w); it appears, however, to be doubtful, whether either party will be bound who, after the lot is knocked down but before the entry is made, revokes the auctioneer's implied authority (x); so inconvenient a doctrine the Courts would, doubtless, repudiate, if possible.

His commission, if estate sold by private contract.

Claim to, defeated by negligence.

Trustee acting as auctioneer has no commission.

If auctioneer insolvent, loss falls on vendor is agent for

(m) Burrough v. Skinner, 5 Burr. 2639; Maberley v. Robins, 5 Taunt. 625.

(n) Harington v. Hoggart, 1 Barn. & Ad. 577.

(o) Rainy v. Vernon, 9 Car. & P. 559; Driver v. Cholmondeley, ibid. n.

(p) Alder v. Boyle, 11 Jur. 591.

(q) Jones v. Nanney, 13 Pri. 76.

(r) Kirkman v. Booth, 11 Beav. 273.

(s) See Sug. 50, and cases there cited.

(t) Edmonds v. Peake, 7 Beav. 239.

(u) Bird v. Boulter, 1 Nev. & M. 313; Henderson v. Barnewall, 1 Y. & J. 387.

But the auctioneer's authority may be revoked by the vendor at any time before the sale: and such revocation has been held valid against parties purchasing in ignorance of it (y).

It seems to be doubtful whether he can sue a party for whom he personally signs as agent (z); but he can maintain the action when the entry has been made by his clerk on behalf of the Defendant (a). both parties within the Statute of Frauds.

Revocation of his authority after lot sold, before entry of name.

Revocation of authority before sale binds purchaser without notice.

His right to sue party for whom he acts as agent.