A

TREATISE

ON

THE LAW OF AUCTIONS.

CHAP. I.

OF THE NATURE OF A SALE BY AUCTION, AND WHAT

IS ESSENTIAL TO RENDER THE SALE BINDING.

SECT. 1. Of the Manner of conducting

SALES

Sales by Auction.

ALES by auction appear to have been common in all ages and countries; thus at the time when the power of the Roman soldiery was at its greatest height, we find the Prætorian bands proclaiming that the Roman world was to be disposed of to the highest bidder by public auction, a vacancy in the imperial dignity having been occasioned by the death of Pertinax, who had fallen a victim to their licentious fury.

Although the mode in which sales by auction were conducted among the ancients is now rather matter of curiosity than utility, it is believed that the classical reader will readily excuse the following

B

statement; and it is confidently trusted that the severe legal student will pardon it on account of its brevity.

In the Roman sales, a spear was fixed in the forum, by which stood a crier, who proclaimed the articles which were intended to be sold. A catalogue was made in tables, called Auctionaria. The seller was called auctor, and the bidders sectores. They signified their biddings by lifting up their fingers, and the highest bidder became the purchaser. About the forum, were a number of silversmiths' or rather bankers' shops, where things sold by auction were registered and sealed; and at these shops, the auctions were in general made, in order that these argentarii might note on the tables the names of the buyers. The permission of the magistrate was necessary for a sale; and after the goods were sold, they were delivered under his authority. Buying in, or redemption, was made by giving security through a friend, which was termed, Dejicere libellos.' Petronius gives a handbill of an auction literally thus: "Julius Proculus will make an auction of his superfluous goods to pay his debts." Estates, pictures, &c. were sold by the Romans in this way; and sales sometimes lasted two months.

In the middle age the goods were cried and sold to the highest bidder, and when he was declared the purchaser, a trumpet was loudly sounded. The use of the spear was retained, the

auctions being called subhastationes; and the subhastator, or auctioneer, was sworn to sell the goods faithfully. In Nares we find the expression, "sold at a pike or spear," i. e. by public auction or outcry; and auctions called portsales, because originally perhaps sales made in ports. The crier stood under the spear, as was the case among the Romans at an earlier period; and was in the thirteenth century called cursor.

The mode of conducting sales by auction at the present day varies in different parts of the world; in England the usual mode is this: a person employed by the vendor, and who is called an auctioneer, publicly offers for sale the property intended to be sold, when the persons desirous of purchasing bid one after another, each succeeding offer being higher than the preceding one, and the highest bidder is declared the purchaser. A practice materially differing from this prevails in Holland, where the estate is put up at a high price, and if nobody accepts the offer, a lower is named, and so the sum first required is gradually decreased till some person close with the offer. Thus of necessity there is only one bidding for the estate.

A mode of sale somewhat resembling the lat-. ter is adopted in some counties in England, upon sales of estates for the redemption of land-tax: the auctioneer states the sum of money wanted and the number of acres to be disposed of, and the person who will accept the least quantity of land for the

sum required is declared the purchaser; so that the persons desirous of purchasing bid downwards, until some one name a quantity of land less than any other person will take.

Sales by auction of the post-horse duties, partake of the nature both of English and Dutch auctions. The duties are put up at a large sum named in the particulars, and the sale is then conducted precisely in the same manner as a Dutch auction; but when any person actually bids, others may advance on that bidding, and the highest bidder is declared the purchaser, just as if the sale had been conducted in the usual way.

SECT. 2. Of the Parties to the Sale.

To render a sale by auction valid, it is necessary that the parties to the sale should be persons able to contract, and not labouring under any of those disabilities by which the law in some cases restricts, and in others entirely takes away, the right of particular individuals to enter into contracts, or prevents them from ever acquiring a right to contract. Generally speaking, all persons, except infants and ́married women, having capacity and understanding, may, by mutual assent, become parties to a contract, and bind themselves and their personal representatives to a performance thereof.*

But although generally speaking infants and

1 Bac. Ab. tit. Agreements, A.