a buyer having made default on the day, but afterwards, within a further time given to him by the Company, paid the remainder of the purchase-money, with interest, might maintain an action against the Company for refusing to allow him to become a bidder at their sales, such sales being by 9 & 10 W. 3, c. 44, s. 69, declared to be public and open sales. And the Court seemed to think it very doubtful whether, since the passing of 18 Geo. 2, c. 26, which regulates the deposits, forfeitures, and incapacities of bidders at the Company's tea-sales, the Company can make or enforce any other regulations affecting these sales than those which are enacted by that act of parliament (p).

The conditions of a sale by auction were, that the goods should be cleared away at the expense of the buyer in 14 days, the price to be paid on or before delivery; and that if any lots remained uncleared after the time allowed, the deposit-money should be forfeited, the goods re-sold, and the loss on the re-sale made good by the purchaser. The broker gave a bought note, which allowed 14 days for receiving and delivery. It was held by the court of Common Pleas that only the buyer had 14 days to take away the goods, but that the seller was bound to deliver them immediately (q).

By the statutes 17 Geo. 3, c. 50, s. 10, and 19 Geo. 3, c. 56, s. 12, it is enacted, that if the owner of any estate, goods or effects, put up to

(p) Eagleton v. The East India Company, 3 Bos. & Pul.

55.

(q) Hagedorn v. Laing, 6 Taunt. 162.

auction, shall become the purchaser by himself or his agent, without fraud, the Commissioners of Excise, &c. shall be authorized to make an allowance to such owner of the duties arising on such biddings, provided notice be given to the auctioneer before the bidding, both by the owner and the agent, of the appointment of the latter, and provided such notice be verified on the oath of the auctioneer, and the fairness of the transaction, to the best of his knowledge and belief. And by statute 28 Geo. 3, c. 37, s. 20, the notice to the auctioneer is required to be in writing; but by 42 Geo. 3, c. 93, a notice by the steward or known agent of the owner is sufficient. And by 19 Geo. 3, c. 56, s. 11,

if

any sale by auction of estates or goods shall be rendered void, by the person for whose benefit such estate or goods were sold having no title, the Commissioners of Excise, or Justices of Peace, are authorized to relieve the party from their payments (r).

Where the agent of the owner, at an auction for the sale of an estate, put it up in five lots, at a certain sum, and no person bidding for it, he put it up in two; and still no person bidding, he put it up in one; and no person then bidding, the estate was withdrawn from sale, it was held that this was not a bidding of the owner by an agent, so as to subject the party to the payment of the auction duty in default of a notice in writing to the auctioneer, previous to the auction, of such agency (s).

The auction-duties which are levied under the authority of various acts of parliament do not extend

(r) See 51 Geo. 3, c. 95,

(s) Cruso v. Crisp, 3 East,

$. 1.

337.

the benefit of the growers, or first purchasers of sheeps wool, are now reduced to the sum of 2 d. on every 20 s. purchase (u).

CHAP. VI.

Of Rescinding Contracts.

THE parties to a contract of sale may at any time rescind it, either in whole or in part, unless by the act of annulling the contract they affect the rights of third persons. One of them cannot, without the assent of the other, rescind an absolute contract of sale; but it often happens that an agreement of this sort is entered into, subject to a condition which one of the parties alone may take advantage of; and in such cases, it is in his power to rescind the contract without the concurrence of the other contracting

(t) 55 Geo. 3, c. 55, s. 12.

(u) 55 Geo. 3, C. 142, s. 1. It is not within the scope of this treatise to state the duties and liabilities of auctioneers which have been created by different acts of parliament. The reader who wishes for further information on this subject, may consult the fol

lowing statutes: 17 Geo. 3, c. 50; 19 Geo. 3, c. 56; 28 Geo. 3, c. 37; 29 Geo. 3, c. 63; 32 Geo. 3, c. 11; 36 Geo. 3, c. 123; 37 Geo. 3, c. 14; 38 Geo. 3, c. 54; 41 Geo. 3, c. 42, 91; 42 Geo. 3, c. 93; 43 Geo. 3, c.69, 130; 45 Geo.3, c. 30, Sched. A.; 47 Geo. 3, st. 2, c. 65.

party. Thus, in an action for money had and received, brought by the plaintiff to recover ten guineas which he had paid to the defendant for a one-horsechaise, and harness, on condition to be returned in case the plaintiff's wife should not approve of it, paying 3 s. 6d. a day for the hire of it, a question arose, whether the contract had been rescinded by the plaintiff returning the chaise at the end of three days (his wife not having approved of it), and tendering the hire of 3s. 6d. per day at the same time, which the defendant had refused to accept, and had also refused to return the money. The Court considered the contract at an end by the return of the chaise, and, therefore, that the plaintiff was entitled to recover the money paid by him to the defendant in this form of action (a). It is, however, incumbent on the party rescinding a contract to do so within a reasonable time; therefore, in a case tried before Mr. Justice Buller, on a warranty of a pair of horses, that they were five years old, when they turned out in fact to be only four, and they were not returned within a reasonable time, the learned Judge ruled, that the plaintiff had not rescinded the contract, and that he could only recover damages, and then the question was, what was the difference in value between horses four and five years old (b).

It was stated by Lord Chief Justice Holt, in a case tried before him at Nisi Prius (c), "that though

(a) Towers v. Barrett, 1 T. Rep. 133. See Weston v. Downes, Dougl. 23; Cooke v. Munstone, 1 New Rep. 351.

(b) 1 T. Rep. 136; Fisher

v. Samuda, 1 Campb. 190, accord.

(c) Lang fort v. ldmix. of Tiler, 1 Salk. 113.

do not pay for the goods, and take them away in a convenient time, the agreement is dissolved, and the vendor is at liberty to sell them to another person;" and this dictum is quoted by Lord Ellenborough (apparently with approbation,) in the case of Hinde v. Whitehouse (d); it seems, however, inconsistent with the doctrine laid down by the last-mentioned noble and learned Judge, in a case which has been already referred to (e), where his Lordship says, "That the buyer's neglect to take away the goods in a reasonable time does not entitle the seller to put an end to the contract."

An action for money had and received was brought under the following circumstances: On the 6th of June 1791, the defendant agreed to sell to the plaintiff all his cord-wood at a certain price. The custom was for the seller to cut off the boughs and trunks, and then to cord the wood, and for the buyer to re-cord it, after which it became the property of the buyer. The defendant cut sixty cords, ten of which he corded, and the plaintiff re-corded half a cord, and measured the rest. On the 8th of March, 1792, the plaintiff paid the defendant part of the price; but the defendant neglecting to cord the rest of the wood, the plaintiff brought his action to recover back the sum paid, as having been paid on a contract which had failed. Mr. Justice Lawrence, before

(d) 7 East, 571.

(e) Greaves v. Ashlin, 3 Campb. 426, ante.