notice be verified by the oath of the auctioneer, as also the fairness of the transaction, to the best of his knowledge.

Neither will the duty be payable where the estate is bought in by, or by the order of the steward(p) or known agent of the owner, actually employed in the management of the sale of such estate; but notice in writing of his intention must be given by the steward or agent, if he himself bid, or by him and the bidder, if he appoint a person to bid(q); and the delivery of such notice must be verified in the same manner as the delivery of a notice given by the owner. And to exempt a vendor from payment of the duty, every notice must, at the time appointed by law for the auctioneer's passing his account of the sale, be produced by the auctioneer to the officer authorized to pass the account of such sale; and also be left with the officer(r).

It is not necessary that the sale should be a regular auction. The acts apply to every mode of sale, whereby the highest bidder is deemed to be the purchaser. Therefore, where after an auction at which there was no bidding, the seller's agent stated that he should be ready to treat for the sale by private bargain, and the meeting broke up; and the agent shortly afterwards went into a private room, with several of the persons who attended the sale, and he stated that the highest offer above 50,000l. would be accepted; and offers were accordingly made to him, and he having opened them, said that the one which was the highest would be accepted, provided the terms of payment could be adjusted, and these terms having been adjusted, the bargain was concluded the following day; this

(p) 42 Geo. III. c. 93. s. 1.

(q) See forms of such notices, Appendix, Nos. 2 and 3.
(r) 42 Geo. III. c. 93. s. 2.

was held to be within the act. The agent put himself under an obligation to treat with all the persons assembled, and to give the estate to the highest bidder. The question was not, whether this was what was usually called a sale by auction, but whether for the purpose of this act every thing must not be considered as such a sale where the contract was with various persons, with an engagement to let the highest bidder be the purchaser. He might have taken any individual he pleased and concluded a bargain with him; that would have been a transaction of a different kind: but here he treated with a number, and came under an engagement to accept the highest offer(s).

Any thing in the nature of a bidding is within the acts; and therefore where the owner put the price under a candlestick in the room (which is called a dumb bidding), and it was agreed that no bidding should avail if not equal to that, it was holden(t) to be within the acts; as being in effect an actual bidding of so much, for the purpose of superseding smaller biddings at the auction.

Upon such a sale by candlestick biddings, as they are denominated, where the several bidders do not know what the others have offered, a bidding of so much per cent. more than any other person has offered would be binding on the person who makes it(u).

So biddings by several persons of sums marked upon a paper are within the act(v).

So in the case of a female auctioneer who continued silent during the whole time of the sale, but whenever any one bid, she gave him a glass of brandy: the sale

(s) Walker v. Advocate-General, 1 Dow, 111.

(1) See the case cited, 3 East, 340. Capp v. Topham, infra. (u) 3 Mer. 483, per Lord Eldon.

(v) Attorney-General v. Taylor, 13 Price, 636.

broke up, and in a private room he that got the last glass of brandy was declared to be the purchaser. This was decided to be an auction(w).

But to bring a bidding within the acts, the sum must be named by the party eo intuitu, with a view to the purchase of the estate. Therefore, in the case of Cruso v. Crisp(x), it was decided, that putting up an estate in lots at certain prices was not a bidding within the acts; but this has since been doubted by Lord Eldon (y); and although it would be difficult to hold the transaction to be a sale within the act, yet of course, although the owner intends only to put up the estate at a certain price, and not to bid for it in case of an advance, a previous notice of his intention should be given.

If an estate be bought in by the owner, and proper notices were not given of his intention to bid, the sale will be held real, and the duty must be paid, however fair the transaction may be. The duty is made a charge on the auctioneer, which he must pay if the proper notices were not given. It is not given by way of penalty. In one case, an auctioneer who had neglected to require proper notices was compelled to pay 5 or 6,000l. out of his own pocket for the duty, although he had not received any part of it from the owners, nor had charged any commission, as the estates were not actually sold(z).

And a statement by an auctioneer to the vendor or his agent, that he has done what is necessary to avoid payment of the duty, will amount to a warranty, although the duty become payable, not by the default, but by the ignorance or mistake of the auctioneer.

(w) 1 Dow, 115. (x) 3 East, 337.

(y) 1 Dow, 114.

(z) Christie v. Attorney-General, 6 Bro. P. C. by Toml. 520; see 3 Ves. Jun. 625, n.

Thus, in the late case of Capp v. Topham(a) an auctioneer put up an estate, and by the conditions of sale reserved a dumb bidding(b) to the owner, which was his mode of saving the payment of the auction duty. The owner's solicitor, with the privity of the auctioneer, placed a ticket containing the price in figures, under a candlestick, on a table in the auction-room. A person

who attended on behalf of the owner asked the auctioneer if he had taken the proper precaution to avoid the duty if there was no sale. The auctioneer said, it was his mode to fix a price under the candlestick, and if the bidding should not come up to the price there was no sale or duty. There were several biddings, but under the price fixed, and the auctioneer was compelled to pay the duty (c). He then brought an auction against the owner for recovery of the money as paid to his use; but the statements by the auctioneer were holden to amount to a warranty, and judgment was given for the defendant. Lord Ellenborough said, that even if there was no warranty on the part of the auctioneer, and it was only a mutual error between him and the vendor, he could not call upon his companion in error for a contribution(d). So that in cases of this nature the burden will remain upon the person upon whom it is charged. And it even seems to have been considered, that if an auctioneer, through ignorance, adopt an improper mode of saving the duty, upon an undertaking by the seller to save him harmless, the duty must be paid by the auctioneer, and he cannot recover under the undertaking, because it is illegal to indemnify against penalties(e). But to this it

(a) 6 East, 392; 2 Smith, 443.

(b) Vide supra.

(c) See Christie v. Attorney-General, ubi sup.

(d) See Farebrother v. Ansley, 1 Camp. N. P. 343. Jones v. Nanney, 13 Price, 76.

(e) Owen v. Parry, Sitt. West. Dec. 6, cor. Lord Ellenborough.

may be objected, that the duty attaches as a charge, and is not imposed as a penalty(ƒ).

If the vendor's title prove bad, the auction duty will be allowed; provided complaint thereof be made before the Commissioners of Excise, or two justices of the peace within whose jurisdiction such sale was made(g), within twelve calendar months after the sale, if the same shall be rendered void in that time; or otherwise within three months after the discovery of the owner having no title(h). But the commissioners will not allow the duty unless they think that the vendor has used his utmost exertions to make a good title. An appeal, however, lies from the judgment of the commissioners: but as the King never pays costs, they fall upon the vendor, and in many cases would amount to more than the duty itself. Where the case is a bona fide one, and the title has been rejected, the commissioners are bound to put a liberal interpretation on the act.

II. According to Cicero(i), a vendor ought not to appoint a puffer to raise the price, nor ought a purchaser to appoint a person to depreciate the value of an estate intended to be sold.(1) And Huber lays it down(j), that if a vendor employs a puffer he shall be compelled to sell the estate to the highest bona fide bidder; because it is against the faith of the agreement, by which it is stipulated that the highest bidder shall be the buyer.

(f) Christie v. Attorney-General, 6 Bro. P. C. by Toml. 520. et supra.

(g) 19 Geo. III. c. 56. s. 11.

(h) 28 Geo. III. c. 37. s. 19. (i) De Off. l. 3.

(j) Prælectiones, xviii. 2. 7.

(1) Moncrieff v. Goldsborough, 4 Har. & M'Hen. 282. Troughton's Adm. v. Johnson, 2 Haywood's Rep. 328. Donaldson v. M’Roy, Browne's Rep. 346.