question, the principle of construction must be the same at law and in equity; and unless pressed for my opinion respecting it, I am bound to do nothing further at present than to refuse the injunction." The parties having expressed a wish to have the question disposed of, his Lordship gave judgment as follows: "I think that the property which is the subject of this application has been represented to be that which it is not in fact; and, even if a court of law should judge otherwise, I should have great difficulty in decreeing a specific performance, where the description is at the least of so ambiguous a nature, that it cannot with certainty be known what it was that the purchaser imagined himself to be contracting for. But what in fact, does the word mean which is here employed? Would any man, seeing a house put up to auction as a house to be sold, subject to a ground-rent lease, suppose that the word ground-rent meant rack-rent? The case in Strange proves that the same words may bear different meanings with reference to the context; but according to the construction here contended for, the word would have no meaning at all. The subject of the contract, therefore, does not answer the vendor's description of it, and that in a point so material as to exclude the doctrine of compensation, which ought never to be applied to a case like the present.

" b

If the conditions of sale are printed and pasted

* 2 Stra. 1020.

b Stewart v. Alliston, 1 Mer. 26.

up under the auctioneer's box, and the auctioneer states that they are so pasted up, and are in the usual form, this will be sufficient notice to purchasers of the conditions.

Thus in Mesnard v. Aldridge, which was an action on the case on the warranty of a horse. It appeared that the horse was sold by the defendant by auction at his repository, and warranted sound. The sale took place on the Wednesday, and at the time of the sale the auctioneer announced that the conditions of the sale were as usual. These conditions of sale were proved to be contained in a printed paper, pasted up under the auctioneer's box; and by one of them, all horses purchased there, in case of any unsoundness discovered, were required to be returned before the evening of the second day after the sale. The horse in question was not returned till the Saturday, when the plaintiff was informed that it was too late, as it ought pursuant to the conditions of the sale to have been returned on the evening of Friday. Lord Kenyon said, "In this case it is proved that printed particulars of the sale are pasted up in the public sale room, under the auctioneer's box. In the case of carriers, who advertise that they will not be liable for goods lost above the value of 51. unless entered as such, the posting up of a bill in the coach office to that effect has been held to be sufficient. I therefore think the same mode being adopted here,

3 Esp. Ni. Pri. Rep. 271.

gives the same degree of notice to all persons who come to this sale, and that it is a sufficient notice of the conditions under which the horses are sold. With respect to the main point, when parties enter into a special agreement, they must adhere to the terms of it. Here there is a condition that the party purchasing must return the horse within two days, which he has not done. I therefore think the plaintiff must be nonsuited."

It is usually and very properly made one of the conditions of sale, that no person shall retract his or her bidding; if this were not done, every bidder would be at liberty to countermand his offer at any time before the hammer was down, notwithstanding one of the conditions of sale might be, that the highest bidder should be the purchaser.

Thus in the case of Payne v. Cave,a which was an action of assumpsit for not paying a deposit upon a lot of goods sold by auction, which consisted of a worm tub and other articles; the circumstances of the case were these: the goods were put up in one lot by auction; there were several bidders, of whom the defendant was the last, who bid 40l.; the auctioneer dwelt on the bidding, on which the defendant said, "Why do you dwell? You will not get more." The auctioneer said he was informed the worm weighed at least 1300 cwt. and was worth more than 40.; the defendant then asked him whether he would warrant it to weigh so much,

a 3 Term Rep. 148.

and receiving an answer in the negative; he then declared he would not take it, and refused to pay for it. It was resold on a subsequent day's sale for 30%. and the action was brought for the difference. Lord Kenyon, Ch. J. before whom the cause was tried, being of opinion, on this statement of the case, that the defendant was at liberty to withdraw his bidding any time before the hammer was knocked down, nonsuited the plaintiff. A motion was afterwards made in the Court of King's Bench for a rule to set aside the nonsuit, on the ground that the bidder was bound by the conditions of sale to abide by the bidding, and could not retract. But the Court refused the rule, and said, "The auctioneer is the agent of the vendor, and the assent of both parties is necessary to make the contract binding; that is signified on the part of the seller by knocking down the hammer, which was not done here till the defendant had retracted. An auction is not unaptly called locus penitentiæ. Every bidding is nothing more than an offer on one side, which is not binding on either side till it is assented to. But according to what is now contended for, one party would be bound by the offer and the other not, which can never be allowed."

Upon the sale of goods it is usual to insert a clause in the conditions of sale, that the goods shall be taken away at the purchaser's expense within a certain time, and paid for previous to their being removed, and that if they are not taken away within

the time limited the deposit money shall be forfeited, the goods resold, and the loss, if any, occasioned by such resale, made good by the purchaser; and it has been held, that where a condition of this sort is inserted, the purchaser has the whole of the time mentioned in the condition to remove the goods, but that the vendor is bound to deliver them at any time within the period mentioned, upon being requested so to do.

Thus in Hagedorn v. Lainga it appeared that the defendant had bought a quantity of hemp by auction, upon the conditions (amongst others) that it was to be cleared away at the buyer's expense in fourteen days, and the price paid on or before delivery. If any lots remained uncleared after the time allowed, the deposit money should be forfeited, the goods resold, and the loss on resale made good by the present purchaser. It was proved on the trial that the goods were put up to sale on the above conditions, and that the defendant was the highest bidder. He applied to take away the hemp immediately after the sale, but it was then in pawn for certain duties which must be paid before it could be delivered, and he was therefore unable at that time to obtain it. The broker employed by the vendor gave the defendant a bought note, describing the goods as bought of himself, upon the terms, amongst others, that fourteen days were to be allowed for receiving and delivery. The goods were,

6 Taunt. 161.