that no delivery therefore could be necessary to transfer the property to Simpson, because the ship never belonged to Duncanson at all that although the materials of which the hull was composed belonged to Duncanson, yet as they were from time to time united to the ship, they became Simpson's by specification, and that their being so united was the only delivery which, in the circumstances of the case, was possible. On the other hand, it was maintained for the creditors, that although the pursuer's plea might have been well founded if the materials of the hull had originally belonged to him, and he had merely employed Duncanson to put them together, yet the case was quite different when the materials belonged to Duncanson himself; that in such a case Simpson could not acquire the property without delivery according to the general rule: that the pursuer's plea was, that the property belonged to him from the beginning, and therefore no delivery was necessary; but this could not be maintained, because all that Duncanson was bound to do by the agreement was to furnish a vessel of a particular description within a limited time, and, therefore, he might have sold the vessel in question to a third party without the pursuer being entitled to complain if he furnished another to him within the stipulated time, (Vide opinion of Heath J. in Mucklow v. Mangles, supra, No. 815. ;) nay, although no such other vessel was furnished, the pursuer might indeed have claimed damages for breach of contract from Duncanson, but he could not have taken the vessel in question from the third party who had purchased her: that the pursuer's argument founded on the idea of the materials having become his by specification, proceeded upon a mistake, because, although by the Roman law, a party might in this way appropriate to himself materials belonging to another, yet here it was quite a different case, where Duncanson built the ship with his own malerials, and that, moreover, by the Roman law, although a person who built a ship from trees belonging to another acquired the property of the ship, yet, where a vessel was built with planks and other materials prepared for that use, the ship became the property, not of the builder, but of the owner of the materials, 1. 61. ff, de rei vind., &c *.

The determination of this case, it is said in the report, was thought by the judges to depend, not so much on general prin

This summary of the argument maintained in this case is taken from the printed pleadings.

ciples of law as on the special terms of the agreement. By these the employer was to pay the price in different portions. Before 'payment, however, he had a right to see the work so far properly performed. Thus, as the builder proceeded, such an appro'priation took place as prevented his creditors from attaching the 'ship without refunding the sums advanced.

The Lords found the claim of Mr. Simpson to be preferable to that of the creditors of the bankrupt *."

CHAP. II.

OF SALES BY AUCTION.

817. Sales by auction differ in various particulars from ordinary sales, where the transaction is a simple contract between the vendor and vendee. The chief distinction is implied in the meaning of the term auction. "Auctio, haud dubie ab augendo dicta 'est, quod ementem augeat et vendentem,' Matthæus de Auction. p. 1.; that is to say, that while in an ordinary sale the bargain is in general a private transaction between the vendor and the vendee, in a sale by auction there is the chance of a competition among the offerers, and of the price being thereby increased.

818. From the nature of a sale by auction, it is obvious that it is necessary to enforce the observance of the most perfect fairness

Simpson v. Creditors of Duncanson, 2d August, 1786. The following note of the opinion of the judges in this case is given by Mr. Bell, vol. i. p. 102. Lord Jus• tice-Clerk, (M'Queen) said, that, taken upon general principles it was a nice question, but he thought the special nature and terms of the contract should de⚫cide it. In the case of a simple bargain for the building of a ship, the materials to be furnished by the builder, he would incline to the opinion that the unfinished ves⚫ sel belonged to the builder or his creditors; but in the particular case, where, by ⚫ the contract, one-third of the price was to be paid when the keel was laid, another when the building was advanced, he held that there was an appropriation of the ⚫ vessel to the employer from the time of laying the keel.' In this opinion Lord Esk. grove concurred. The rest of the court went chiefly on the ground that the credi tors of Duncanson, taking the benefit of the contract, could not refuse credit for the payments which had been made to Duncanson himself.

on both sides. Accordingly, certain rules founded upon this principle, and which are held without any express agreement to be implied in the nature of the transaction, have been established both in England and in Scotland. The laws and customs of the two countries do not indeed agree upon this matter in every respect; but from the very nature of a sale by auction, there are certain circumstances peculiar to it, which must exist every where.

819. I. On the part of the owner of the subject which is exposed to sale, there is an implied undertaking that it shall go to the highest bidder at the close of a fair competition, and consequently, that no undue means shall be employed to enhance the price, by exciting the appearance of a competition, when none exists. Upon this principle, it has been held that it is unlawful for the exposer to bid himself, or to employ a third party to bid for him, unless his intention to do so has been openly announced. The grounds upon which such practices are forbidden, are fully explained in the following cases.

The first case to be mentioned is an English case, decided by Lord Mansfield. It was an action on the case brought by the plaintiff against the defendant, an auctioneer, for carelessly and negligently selling the plaintiff's gelding, which he had directions not to let go under L.15, for a less sum, viz. L.6 16s. 6d. A verdict was found for the plaintiff at the trial, subject to the opinion of the court upon this question-whether under the circumstances of this case, the auctioneer was bound to bid for, and buy in the horse, if no one bid to the amount of L.15 for it. The case at the trial appeared to be, that the auction at which the horse was sold, purported to be a sale of goods and effects of a gentleman deceased, at his house in the country, by order of the executor.' The horse was not mentioned in the catalogue; but was sent by the plaintiff to be sold, with a written order not to let him go under L.15, and the plaintiff had no other connection with the sale. The conditions of sale were, that the goods should be sold

to the best bidder.' Lord Mansfield, upon reporting the case to the Court of King's Bench, said, that the practice at auctions of owners buying in their own goods, struck him as a fraud upon the public; and that the nature of these sales required that the goods should go to the best real bidder. And after an argument at the bar, his Lordship delivered the following opinion: the matter is in itself of small value; but in respect to the principles by which it must be governed, it is a question of great importance. Since

the trial, I have mooted the point with many who are not lawyers, upon the morality and rectitude of the transaction. The question is, whether a bidding by the owner of goods at a sale, under these conditions, viz. that the highest bidder shall be the pur"chaser, and if a dispute arise, to be decided by a majority of the persons present,' is a bidding within the meaning of such con'ditions of sale? There is no express undertaking on the part of the defendant, nor is it, as has been ingeniously said, a direction that there should be no bidding under L.15, which might be fair. But the direction given to the defendant is, not to let the horse 'go under L.15,' which implies there might be bidding under that 'sum. The question then is, whether the owner can privately employ another person to bid for him? The basis of all dealing ought to be good faith; so, more especially in these transactions, when the public are brought together upon a confidence that the articles set up to sale will be disposed of to the highest 'real bidder. That could never be the case if the owner might secretly and privately enhance the price by a person employed for that purpose; yet tricks and practices of this kind daily increase, and grow so frequent, that good men give into the ways of the bad and dishonest in their own defence., But such a practice was never openly avowed. An owner of goods set up 'to sale in an auction, never yet bid in the room for himself. If such a practice were allowed, no one would bid. It is a fraud upon the sale, and upon the public. The disallowing it is no hardship upon the owner, for, if he is unwilling his goods should 'go at an under price, he may order them to be set up at his own price, and not lower. Such a direction would be fair. Or he might do as was done by Lord Ashburnham, who sold a large estate by auction. He had it inserted in the conditions of sale, that he himself might bid once in the course of the sale; and he bid at once L.15,000 or L.20,000. Such a condition is fair; because the public are then apprized, and know upon what ⚫ terms they bid. In Holland, it is the practice to bid down'wards.'

The question then is, is such a bidding fair? If not, it is no 'argument to say it is a frequent custom. Gaming, stock-jobbing, and swindling, are frequent. But the law forbids them all. Suppose there was an agreement to abate so much, which is the case where goods are sold by one person in the trade to another; they abate sometimes 10 or 15 per cent. Such an agree

'ment between the owner and the bidder at a sale by auction 'would be a gross fraud. What is the nature of a sale by auc'tion? It is, that the goods shall go to the highest real bidder.• But there would be an end of that if the owner might privately 'bid upon his own goods. There is no contract with the auctioneer. He is only an agent between the buyer and seller. He may fair

ly bid for a third person who employs him, but not for the own'er.' The other judges having concurred in this opinion, the plaintiff was nonsuited *.

820. Upon the same principle it was decided by the Court of Session in the following case, that when a subject is exposed to sale by auction at the pleasure of the company, it is illegal to buy it in for the owner, when there is only one offerer, and that there is no distinction in this respect between an auction where the subject is exposed at the pleasure of the company and an auction where an upset price is fixed.

The defender, John Durie, as agent for Captain Wilkinson of the Nightingale, sold by public roup, at Leith, two Danish ships, which had been taken by the Nightingale. Instead of naming an upset price, the auctioneer exposed one of the vessels at the pleasure of the company. The pursuer Cree offered L.260, which was thought an inadequate price; and no person offering more, the auctioneer himself bid L.300, and knocked down the vessel. He soon after exposed the vessel again, and it was bought by a third party for L.325. Upon this, the pursuer brought an action in the Admiralty Court concluding for L.150 of damages.

6

The Judge Admiral pronounced this judgment, Finds that the pursuer has sufficiently proved the allegations contained in the libel and answers for him: finds that the defender has neither proved nor attempted to prove the allegations on his part, particularly the alleged consuetudinary right said to be vested in the exposer of any kind of goods to public sale, either by himself or an agent, to purchase the article so exposed when in danger of being otherwise sold below its real or supposed value: and finds that such a right, whereof no evidence has been either offered or adduced, could least of all be exercised by the person ap'pointed by the conditions of sale to be judge of the roup, and who 'could not be both judge and party in the same cause, therefore

Bexwell v. Christie, Cowp. 395. A similar judgment was given in a later case, Howard v. Castle, 6 T. R. 642.