auctioneer was an agent for the purchaser, even upon a sale of estates. Lord C. J. Mansfield, in delivering judg ment, asked, by what authority does he write down the purchaser's name? By the authority of the purchaser. These persons bid, and announce their biddings loudly, and particularly enough to be heard by the auctioneer. For what purpose do they do this? That he may write down their names opposite to the lots; therefore he writes the name by the authority of the purchaser, and he is an agent. for the purchaser (f). In a later case (g), the Court of Common Pleas adhered to their former decision, and they considered the signature by the auctioneer of the purchaser's name alone, sufficient, although he was only an agent, to bind the principal; and the conditions expressly required, that the highest bidder should sign a contract for the purchase. The principal, however, was present, and did not object to the signature by the auctioneer until after it was made. The action in this case was brought for the auction duty. Upon a bill filed by the seller for a specific performance, the Master of the Rolls decreed it, following the decisions in the Common Pleas, although his own opinion was, that an auctioneer is not the agent of the purchaser (h). The rule, therefore, may now be laid down generally, that an auctioneer is an agent lawfully authorized by the purchaser. It was always clear, that an auctioneer, appointed by a vendor, was a good agent for him within the statute (i). And although a purchaser bid by an agent, yet the auctioneer is still duly authorised to sign the agreement (k).

(f) Emmerson v. Heelis, 2 Taunt. 38; see 1 Cas. and Opin. 142, 143.

(g) White v. Proctor, 4 Taunt. 209.

(h) Kemys v. Proctor, 3 Ves.

and Bea. 57.

(i) Vide supra.

(k) Emmerson v. Heelis, 2 Taunt. 38; White v. Proctor, 4 Taunt. 209.

It seems that the agent must be a third person, and that neither of the contracting parties can be the agent of the other (1). It would be difficult, however, to maintain this proposition, where either party has an express authority from the other to sign the agreement on his behalf.

SECTION III.

Of Parol Agreements not within the Statute.

I. WE have seen what is considered a sufficient agree

ment to take a case out of the statute, but there are cases in which the performance of an agreement will be compelled, although the terms of it are not reduced into writing; for though the statute provided that no agreement should be good, unless signed by the party to be bound thereby, or some person authorised by him, yet on all the questions upon that statute, the purport of making it has been considered, viz. to prevent frauds and perjuries; and where there has appeared to be no danger of either, the courts have endeavoured to take the case out of the statute (m).

Upon this ground it was that in the case of Simon v. Motivos, Lord Mansfield, and Mr. Justice Wilmot, expressed a clear opinion, in which Mr. Justice Yates was inclined to concur, that sales by auction were not within the statute, because the solemnity of that kind of sale pre

(See Wright v. Dannah, 2 Campb 203.

(m) See 1 Ves. 221.

cludes

cludes all perjury as to the fact itself of sale. The case, however, which arose upon the sale of goods, was determined upon the ground of the constructive agency of the auctioneer (n), who had set down in writing the name of the purchaser, &c. (0).

Succeeding judges have entertained a different opinion on the great question, whether sales by auction are within the statute of frauds, and it has accordingly been since frequently decided, that sales by auction of estates are within the statute (p). And although the point has never been decided, yet, from the present temper of the courts, it seems probable that it will be determined, that sales by auction, even of goods, are within the statute.

But on the ground that there is no danger in such a transaction of either fraud or perjury, a sale before a master under the decree of a court of equity will be carried into execution, although the purchaser did not subscribe any agreement. The judgment of the court, in confirming the purchase, takes it out of the statute (q).

So if, under a reference to a master, an agreement be made to lay out trust-money in the purchase of particular lands, and the master make his report accordingly, and the report be confirmed without any opposition by the owner of the estate, the purchase will be carried into a specific execu

(n) Vide supra.

(0) 3 Burr. 1921, Bull. Ni. Pri. 280, 1 Blackst. 599.

(p) Stansfield v. Johnson, 1 Esp. Ca. 101; Walker v. Constable, 2 Esp. Ca. 659; 1 Bos. and Pull. 806; Buckmaster v. Harrop, 7 Ves. Jun. 341, affirmed on appeal, Dec. 1806; Blagden v. Bradbear, 12 Ves. Jun, 466; and see Coles v. Trecothick, 9 Ves. Jun. 219;

Ilinde v. Whitehouse, 7 East, 558 Mason v. Armitage, 13 Ves. Jun. 25; Higginson v. Clowes, 15 Ves. Jun. 516. The case of Symonds v. Ball, 8 Term. Rep. 151, turned on the particular provisions of another act of parliament.

(q) Attorney-general v. Day, 1 Ves. 218; and sce 12 Ves. Jun. 472.

tion, although no agreement was signed by the vendor. The sale is a judicial sale, which takes it entirely out of the statute (r).

II. It has been repeatedly determined in equity (s), that if a bill be brought for the execution of an agreement not in writing, nor so stated in the bill, yet, if the defendant put in his answer, and confess the agreement, that takes the case entirely out of the mischief intended to be prevented by the statute; and there being no danger of perjury, the court would decree it; and if the defendant should die, upon a bill of revivor against his heir the same decree would be made as if the ancestor were living, the principle going throughout, and equally binding the representatives (t).

Lord Chancellor Bathurst, however, held that an agreement, not in part performed, could not be carried into execution, although confessed by the answer. In Eyre v. Popham (u), addressing himself to Mr. Ambler, he asked, if there was any case in which there had been a decree founded upon confession generally without a part performed? and Mr. Ambler replied, that in some of the cases, the Chancellor had been mentioned to have said it. but he never found a decree. In giving judgment, his Lordship is reported to have said, "This is not an agree

(r) S. C.

(5) Croyston v. Banes, Prec.Cha. 208; and see 1 Ves. 221. 441; Ambl. 586; Mose. 370; and Symondson v. Tweed, Prec. Cha. 374; Gilb. Eq. Rep. 35; Wanby V. Sawbridge, 1 Bro. C. C. 414,

cited.

(t) Per Lord Hardwicke, see 1 Ves. 221.

(u) Lofft. 808, 809; and see Eyre v. Iveson, 2 Bro. C. C. 563, cited,

ment

ment in writing, upon the statute of frauds; but the question is, whether it is an agreement which so appears as that the court will decree a performance. It has been said, that it is a known rule in this court, that where an agreement appears confessed, the court will decree a performance, though no part has been performed: some dictums there have been, but Mr. Ambler confesses that he has found no decree-that where the substance clearly appears, though in parol, without any part performed, the court will decree an agreement to be executed. I think it cannot be possible; this court cannot repeal the statute of frauds, or any statute. The king has no such power, by the constitution, entrusted in him; and therefore there can be no such power in his delegates. The only case I know that takes a contract out of the statute is of fraud, and the jurisdiction of this court is principally intended to prevent fraud and deceit. Where a party has given ground to another to think he had a title secured, the court will secure it to him. The ground, therefore, in making and refusing decrees, has been fraud. It can never be laid down by the court, that where the substance appears it shall be executed. It would not have been so at common law."

In the discussion of the foregoing case, neither the bar nor the court appear to have been aware of a case before Lord Chancellor Macclesfield (x), in which the defendant having pleaded the statute of frauds to a bill seeking a specific performance of a parol agreement, his Lordship said, the plea was proper, but then the defendant ought, by answer, to deny the agreement; for if she confessed the agreement the court would decrce a performance, notwith

(x) Child v. Godolphin, 1 Dick. 39; 2 Bro. C. C. 566, cited; and

see Hartley v. Wilkinson, Irish Term Rep. 357.

standing