The auctioneer is considered the agent of both parties, vendor and purchaser. In the language of the judges in a late case, " a bidder, by his silence when the hammer falls, confers an authority on the auctioneer to execute the contract on his behalf." He can therefore bind the parties by his signature according to the requisi tion of the Statute of Frauds, which renders it necessary in contracts of sale of " lands or any interest in or concern ing them," and of goods above the value of 101., and that some "note or memo randum should be signed by the parties or their agents lawfully authorized." Such signature is now held sufficient even in an action brought by the auctioneer against the vendor in his own name. It has been doubted therefore, whether a bidder may not retract (in cases within the statute) at any time before the actual written entry. The auctioneer also stands in the situation of a stakeholder of the deposited part of the purchase-money, which he is not at liberty to part with till the sale has been carried into ef fect; and he cannot, at least after notice, discharge himself by paying over the amount to the vendor. It has been settled by a late decision that he is not liable for any interest on, or advantage which he may make from, the money in his hands. In this respect his situation differs from that of a mere agent, and also from that of one of the contracting parties (the vendor), from whom " in terest is recoverable in the nature of damages for a breach of the original con tract on the part of the vendor, by whose failure to make a good title the vendee has for a time lost the use of his money." (Mr. Justice James Parke.) An auc tioneer (like any other agent and trustee concerned in the sale of property) is for bidden to buy on his own account; and when he sells without disclosing the name of his principal, an action will lie against himself for damages on the breach of contract.
The conditions of sale constitute the terms of the bargain, and purchasers are bound to take notice of them. The late Lord Ellenborough said that " a little more fairness on the part of auctioneers in framing particulars would avoid many inconveniences. There is always either a suppression of the fair description of the premises, or something stated which does not belong to them ; and in favour of considering how little know ledge the parties have of the thing sold, much more particularity and fairness might be expected." The conditions usually contain a provision that " any error or misstatement shall not vitiate the sale, but that an allowance shall be made for it in the purchase-money." But this clause is held only to guard against unintentional errors, and not to compel a purchaser to complete the contract if he has been designedly misled.
The duties that were levied upon goods sold by public auction were not charged according to any uniform scale. Sheep's wool of British growth, sold for the benefit of the growers, or of persons who had purchased directly from the growers, were subject to a duty of two pence for every twenty shillings of the purchase-money. This duty produced less than 201. in the whole of the United Kingdom, in 1842. Freehold, copyhold, or leasehold estates, whether in land or buildings; shares in the joint-stock of corporate or chartered companies; re.
versionary interest in any of the public funds; and ships or vessels—were liable to pay sevenpence for every twenty shil lings : household furniture, horses, car riages, pictures, books, and the like kinds of personal property, were made to pay one shilling for every twenty shillings of the purchase-money. (45 Geo. III. c. 30.) Bonds granted under a local paving act, and charged upon certain premises, were held to be an interest in land, and as such subject to the lower rate of duty. Upon this principle dock-bonds, gas work shares, railroad shares, canal shares, bridge shares, shares in a news room or library, pews in a church or chapel, poli cies, bonds, and other securities which created or conveyed any interest in land, tenements, or hereditaments, were charged only with the lower duty of sevenpence in the pound. (Bateman On the Excise, p. 332, ed. 1843.) But many exceptions were made by the le gislature when imposing these duties.
Piece-goods, wove or fabricated in this kingdom, which shall be sold entire in the piece or quantity, as taken from the loom, and in lots of the price of twenty pounds and upwards," were exempted from the payment of duty.
The produce of the whale and seal fisheries enjoyed an equal exemption, as well as elephants' teeth, palm oil, drugs, and other articles for the use of dyers also mahogany and other woods used by cabinet-makers, and all goods imported by way of merchandise from any British colony in America, the same being of the growth, produce, or manufacture of such colony, and sold by the original importer within twelve months from the time of importation. Neither was any duty chargeable upon property sold by order of the courts of Chancery or Exchequer; nor on any sale made by the East India or Hudson's Bay Company; nor by order of the Commissioners of Customs, Ex cise, or other government boards of com missioners. In like manner, sales made by the sheriff for the benefit of creditors in execution of judgment, and bankrupts' effects sold assignees, were not held liable to the payment of auction-duty ; which last species of exemptions was made upon the principle of not aggra vating their losses to innocent sufferers. Goods distrained for non-payment of tithes were also exempt. For the same reason, goods damaged by fire, or wrecked or stranded, which were sold for the benefit of insurers, were not charged with duty. Wood, coppice, the produce of mines or quarries, cattle, corn, stock or produce of land, might be sold by auction free of duty while they continued on the lands producing the same. The exemption only extended to the unmanufactured produce of land, and did not include cheese, butter, flour, &c.; and the stock of a nurseryman would be liable to the duty, the exemp tion being confined strictly to agricul tural produce. By virtue of a Treasury warrant issued in 1822, auction-duty was not charged on the sale of property of foreign ministers to the court of Great Britain on their leaving England. The effects of officers and soldiers dying in her Majesty's service might be sold by auction by a non-commissioned officer or soldier, without incurring auction-duty ; and in 1839 this exemption was extended to the effects of deserters.