No. CCII. Testimonium. No. CCII. Testimonium of a Will. In Testimony (or, " In Witness") whereof I the sd A. B. the testator have to two parts, (" each part" or "this part" &c. of) this my last will and testament contained in sheets of paper set my hand and seal namely to first sheets my hand and to and last of each part (or" of this part") my hand and the Definition of an attornment. Stamp duty on attornment. ATTORNMENTS. 2. Stamp Duty on Attornment. 1. Definition of an Attornment. SECT. 1. Attornment is, properly, the acknowledgment by the tenant of a new lord, or the agreement of the tenant to the grant of the seignory of a rent, or of a reversion and remainder, Co. Litt. 309 a. Since the 4 & 5 A. c. 16, and 11 G. 2, c. 19, an attornment is no longer necessary to the validity of a grant, and is therefore seldom made, except occasionally to mortgagees, or in the case of a recovery in ejectment. 2. A mere attornment, not containing an agreement to pay such rent as shall be agreed upon, requires no stamp, Cornish v. Searell, 8 B. & C. 47. No. CCIII. No. CCIII. Attornment from a Tenant to a Mortgagee in Possession by Know all Men that I the within-named (tenant) did on the (a) As to the stamp, see supra, sect. 2. No. CCIV. Attornment of several Tenants by Direction of the Mortgagor. To All to whom these prests shall come A. B., C. D. and E. F. send greeting Whas A. B. holds and rents of the sd (mortgagor) a certain farm called &c. and situate &c. and C. D. holds &c. and E. F. holds &c. And whas the sd sevl farms are now in mortgage to (mortgagee) of &c. and the sd (mortgagor) is willing and desirous that the sd (mortgagee) should have posson of the respive preses Now Know ye that the sd A. B., C. D. and E. F. by the direction of the sd (mortgagor) testified by his being a party to and signing these presents do hby severally agree to pay over the sevl rents due and paye for their respive farms and each of them the sd A. B., C. D. and E. F. have given one shilling in the name of attornment and in pt paymt of the sd rent In witness &c. see ante, No. XLVI. No. CCIV. Several Tenants. AUCTIONS. 1. What constitutes an Auction. 3. Licence to sell by Auction. 4. Particulars and Conditions of Sale. Auctioneer Agent for both Parties. Implied Authority. Auctioneer must not exceed his Authority. 6. Biddings at the Sale. Biddings by competent Persons. 7. Deposit Part of Purchase Money. SECT. 1. An auction is a sale by competition, where the highest What constibidder is the purchaser, but to constitute a sale within the Auction tutes an auction. Auctions. What comprehended under the law of auctions. Sales by auction within the Sta tute of Frauds. Licence to sell by auction. Particulars and conditions of Sale. Acts it is not necessary that it should be conducted in any particular manner. The words of the 19 G. 3, c. 56, s. 3, are "by outery, 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," and therefore a sale in a private room, where several persons were present, and a bargain was struck with one who offered the most, was held to be a sale within the auction laws, Walker v. Advocate-Gen. 1 Dow, 114; and any thing in the nature of a bidding is within the Act, as candlestick biddings, R. v. Taylor, 13 Price, 636; S. C. M'Clel. 362; dumb biddings and the like, Cruso v. Crisp, 3 East, 340; but it appears that where property is put up to sale, and there is no person that bids, this will not be deemed an auction within the Act, the bare proposal of a sum by an agent for the owner not being held to be a bidding, ib. and see Capp v. Topham, 6 East, 392; S. C. 2 Smith, 443. The law of auctions is affected not only by the revenue laws, but also by the general law regulating the transfer of property real and personal. In this twofold point of view it embraces various matters as regards the Statute of Frauds, the licence to sell by auction, the conditions of sale, the conduct of the sale, the biddings at the sale, the deposit and the auction duty. 2. It was for some time a matter of question, whether sales by auction were within the Statute of Frauds. In one case it was expressly decided that they were not, Simon v. Motivos, 3 Burr. 1921; but that case has been overruled by a variety of subsequent decisions, and it is now settled that the provisions of that Act must be complied with in sales by auction, whether of real or personal estate in the same manner as in sales by private contract, see Dig. p. ii. tit. FRAUDS (STATUte of). 3. No one can sell any thing by auction without taking out an excise licence; and in the case of selling particular exciseable articles, he must take out a special licence in addition from the commissioners of excise; or for the sale of plate, watches or patent medicines a licence from the commissioners of stamps. On taking out a licence, the auctioneer is required to enter into a bond to deliver in an account to the Excise Office of each sale. The enactments regulating the licence and the bond are contained in the 19 G. 3, c. 56; 43 G. 3, c. 130; 6 G. 4, c. 81; 7 & 8 G. 4, c. 53; and 4 & 5 W. 4, c. 51; see further Bateman on the Excise Laws, and Bateman on the Law of Auctions; also Dig. p. ii. tit. AUCTIONS. 4. The particulars or conditions of sale, which more immediately concern the parties themselves, are of the first importance, and re quire to be drawn up with special care, see post, No. CCXV.; also Auctions. CONDITIONS OF Sale. sale. 5. The conduct of the sale rests with the auctioneer, who at all Conduct of the times was held to be an agent for the vendor, Bexwell v. Christie; and according to the later decisions, he has been held to be also an Auctioneer an agent for both agent for both parties, Emerson v. Heelis, 2 Taunt. 38; Kemys v. parties. Proctor, 3 V. & B. 57; S. C. 1 J. & W. 350; and as an agent he cannot delegate his authority, and cannot therefore authorize any one, not even his own clerk, to sell without the consent of the owner of the property, Coles v. Trecothich, 9 Ves. 236; although for some purposes the clerk may also be an agent for both parties as well as the auctioneer himself, Payne v. Cave, 3 T. R. 148; Gosbell v. Archer, 2 Ad. & Ell. 500; S. C. 4 Nev. & Man. 485; S. C. 1 Har. & Woll. 31. No written authority is necessary to constitute the auctioneer an Auctioneer an agent without agent for both parties, the seller giving authority by his instructions written authoto sell, and the buyer, to whom the conditions of sale, pasted on the rity. auctioneer's box, are a sufficient notice of the terms by his bidding aloud, Simon v. Motivos, 1 Bl. 599; S. C. 3 Burr. 1921; Hinde v. Woodhouse, 7 East, 558; Emerson v. Heelis, 2 Taunt. 38; Shelton v. Livius, 2 Tyrw. 436; Bird v. Boulter, 4 B. & Ad. 443; and an Implied autho authority may be implied by certain acts without any verbal instruc- rity. tions, as if the owner of a horse send it to a common repository for the sale of horses, or the proprietor of goods send them to an auction. room, Pickering v. Busk, 15 East, 42; and so an auctioneer's clerk can bind the purchaser as well as the vendor by an entry made in their presence, as by their silence when the hammer falls he is considered to have their authority to execute the contract on their behalf, Farebrother v. Simmons, 5 B. & A. 333. As to the signature by the auctioneer or his clerk within the Statute of Frauds, see Dig. p. ii. tit. FRAUDS (STATUTE OF). An auctioneer, in conducting a sale by auction, cannot deviate from the strict terms of his instructions; if he does, he will be personally amenable for the consequences, Powell v. Sadler, cited Paley, P. & A. 80; and therefore if he sell by private contract property intrusted to him to sell by auction, he will be held liable, Daniel v. Adams, Amb. 495; so if the auction duty attaches on a sale through his neglect, he cannot recover the same, Capp v. Topham, 6 East, 392; Jones v. Nanney, 13 Price, 76; S. C. M'Clel. 25. As to the duty and liability of the auctioneer with regard to the biddings at the sale, and the deposit after the sale, see infra. Auctioneer must not exceed his authority. 6. To complete a sale by auction, there must be a bidding on the Biddings at the sale. Auctions. Biddings by competent persons. Private biddings how far admis sible, or other wise. one side by one as a purchaser, and an acceptance of the bidding by the auctioneer, signified by the fall of his hammer, Payne v. Cave, 3 T. R. 148; and before the hammer is down, the purchaser may retract his bidding, ib.; but the retractation must be made loud enough to be heard by the auctioneer, otherwise it will be of no avail, Jones v. Nanney, ub. sup. The bidding must be by some person capable of being a purchaser, and therefore a bidding by a lunatic or idiot would be void, on the general principle that such person cannot make a valid contract, Yates v. Boen, 2 Str. 1104; and so a bidding by a drunken man, Pitt v. Smith, 3 Campb. 38; and so it is not competent to an auctioneer to make a bidding, unless he acts as a duly authorized agent, Coles v. Trecothick, 9 Ves. 248. The courts at one time discountenanced private biddings, holding them to be a fraud upon the purchaser, Bexwell v. Christie, Cowp. 395; and the Acts of Parliament, which permit a private bidding on behalf of the vendor, were held to be made for the protection of the revenue, and not to interfere with private rights, Howard v. Castle, 6 T. R. 642; it seems, however, now to be settled, that a private bidding is admissible when used only to prevent the property from being sold below its real value, Smith v. Clarke, 12 Ves. 477; therefore where a person is employed, not for a defensive purpose, but to screw up the price, the sale has been held bad, ib. 483; so likewise where more than one person is employed, Wheeler v. Collier, 1 Mood. & M. 123; R. v. Marsh, 3 Y. & J. 331; so likewise where, in the conditions of sale, it is stated that the estate is to be sold "without reserve," Meadows v. Tanner, 3 Madd. 34. To obviate all questions, the vendor ought, as is usually done, to give notice by a stipulation in the conditions of sale, that the owner may bid once in the course of the sale. See further, post, CONDITIONS OF SALE. Deposit part of 7. After the completion of the sale, it is usual to require a sum to purchase money. be paid down by way of deposit; and this payment will be deemed to be in part of purchase money, and not as a pledge, Pordage v. Cole, 1 Saund. 320; but it will not be deemed in equity to be sufficient part performance of a contract so as to take the case out of the Statute of Frauds, Main v Melbourne, 4 Ves. 720. Payment of deposit to auctioneer. If by the conditions of sale the deposit is made payable to the auctioneer or solicitor, the payment ought to be immediately required, Hanson v. Roberdeau, 1 Peake, 120. The auctioneer, in receiving the deposit, is deemed a mere stakeholder, and not an agent, as in the case of the sale; and he cannot legally part with it until the sale is completed, and it appears to whom it properly belongs, Burrough |