The remaining sub-sections provide that a bid by the owner shall be deemed fraudulent, unless he has expressly reserved his right to bid; but both this right and the right to impose a reserve price are carefully safeguarded.

2

Now the Sale of Goods Act is a codifying statute, and it is undisputed that in the sub-section just quoted it is merely declaring what, apart from Warlow v. Harrison, was the general principle regulating auction sales.1 That being so, it is at least remarkable that it contains no indication whatever of there being any such exception to the general rule as was suggested by the language of three judges in that case. The Act purports to be a complete code, and in no other instance does it leave an exceptional rule to be inferred from the doubtful principles of an earlier case instead of defining it in express terms. As a matter of fact, the Act has the reputation of being one of the best drafted of the English codes, and this reputation could hardly be sustained if its unqualified statements were always liable to be qualified by glosses from the older case law.

We may now pass to consider the course of decisions later than the Act. In Johnston v. Boyes,3 to which reference has already been made, Cozens-Hardy, J., certainly cited Warlow v. Harrison as an authority for the proposition that the auctioneer who sells without reserve is bound to knock down the goods to the highest bonâ fide bidder, but upon the facts of the case before him he decided in favour of the defendant upon other grounds. Then we have

1 Payne v. Cave ([1789], 3 T. R. 148); Harris v. Nickerson (L. R. [1873], 8 Q. B. 286).

2 On the construction of codifying statutes in general, see Bank of England v. Vagliano Bros. (L. R. [1891], A. C. 107), cited and approved by the Privy Council in Robinson v. Canadian Pacific Railway Co. (L. R. [1892], A. C. 481); and on the Sale of Goods Act in particular, see Wallis v. Russell ([1902], 2 Ir. 585). 8 L. R. [1899], 2 Ch. 75. The lot here was actually knocked down to the plaintiff, who, however, was unable to pay the deposit in cash. The property being land, the Sale of Goods Act did not govern the transaction.

a rather curious case of Rainbow v. Hopkins, in which the vendor fixed a reserve price, but the auctioneer accidentally offered the lot for sale without reserve. The lot was actually knocked down to a purchaser and then withdrawn upon discovery of the mistake. The Court held that the purchaser could have succeeded in this case if it had not been for the Statute of Frauds. The point we are considering did not therefore arise for decision, and the case only calls for notice here, owing to a remark of Kennedy, J., in delivering the judgment of the Court (at p. 326):

"Warlow v. Harrison was cited to us by the plaintiff's counsel. But in that case the auctioneer never made a contract, as he refused to accept the plaintiff's bid, although it was the best genuine one, and therefore he never did effect a contract between his principal and the plaintiff."

The only other authority that remains is a Scottish case of Fenwick v. Macdonald, Fraser & Co., decided in the Second Division of the Court of Session. The particulars of sale in this case announced that the lot would be offered unreserved, but that the owner reserved the right to make one bid. The action was raised both against the auctioneer and the owner, the auctioneer having refused to accept the pursuer's bid. So far as the actual case was concerned, the construction of the advertisement adopted by the Court was sufficient to absolve both defenders, but in all the opinions passages occur which show that the decision might rest upon a broader basis. Thus, for example, Lord Young says (at p. 853):

"I think that there is no sale until the fall of the hammer, and that until then any competitor is entitled to withdraw his bid. Of course it follows that any proprietor is entitled to withdraw the article he is selling. One party is not bound when the other is free."

It is difficult to answer this reasoning, unless we are prepared to say that in the case of a sale without reserve there

I L. R. [1904], 2 K. B. 322.

2 [1904], 6 F. 850.

are really two contracts-one formed by the making of the highest bid and the second by the fall of the hammer. The former contract would then be in the nature of an option to purchase, leaving the bidder, but not the auctioneer, at liberty to withdraw. This view, however, seems to be extraordinarily far fetched, and it certainly finds no support whatever from the very clear language of the Sale of Goods Act. At the present day we can hardly be expected to override the express terms of a well-drafted code by an anomalous rule which, if it ever existed at all, rested upon the dicta of certain judges in Warlow v. Harrison.

HERBERT A. SMITH.

IV. CORROBORATION IN BASTARDY CASES.

A

MONG the many branches of litigation now-a-days assigned to our inferior Courts perhaps none raises more difficult issues than the administration of the Bastardy laws. On an application for a bastardy order there is usually a direct conflict of evidence, rank perjury being committed on one side or the other-not infrequently on both. The applicant is often unable to procure professional assistance, and her case is presented so imperfectly as to lead to a miscarriage of justice; while, in many instances, the putative father is placed at a disadvantage through prejudice springing from sympathy with the plight of the applicant, or he is, perhaps, hampered by some folly or indiscretion of which he has himself been guilty in the hope of escaping scandal and the stigma which almost invariably attaches to the preferment of such a complaint in an open and public Court.

Apart from these unavoidable obstacles in the way of a just and satisfactory determination, there is a further serious.

difficulty arising from the very proper statutory prohibition against the making of any order unless the evidence of the mother be "corroborated in some material particular by other evidence to the satisfaction of the justices" (Bastardy Laws Amendment Act 1872, s. 4). As may well be supposed, this salutary provision, on occasion, involves the solution of intricate questions-questions partly of fact and partly of law. It has long been established that the required corroboration may consist of admissions made by the alleged father to or in the presence of persons other than the mother. Indeed, silence on his part, when taxed with the paternity of the child, may afford sufficient corroboration: "the magistrates," said Lord Russell of Killowen, in Hill v. Denmark (59 J. P. 345), "had the witnesses before them, "and could judge from their demeanour and the way the "evidence was given what was the proper inference to be "deduced as to the meaning of his silence." In a later case the defendant and the child's mother (who was a maidservant in the employ of his grandfather) had been seen out together"in the lanes" of an evening, and, after the birth, defendant had asked if the girl "was going to swear the child." This was held to be sufficient in a judgment from which, however, Wills, J., expressly dissented (Harvey v. Anning, 87 L. T. 687; 67 J. P. 73). Indeed, the Court may rely upon acts of undue familiarity or other circumstances that occurred some months before the time of conception (Cole v. Manning, 2 Q. B. D. 611; 46 L. J. M. C. 175); while the necessary corroboration may, of course, rest on payment of money for the child's maintenance, where such payment is proved by testimony other than that of the mother.

But magistrates have few authorities to guide them amidst the infinite varieties of embarrassment that arise in the determination of this issue; and, although, in a very recent case reported in the December and January numbers of the Law Reports, the judgment of a Divisional Court has

been reviewed in detail by the Court of Appeal, it will be found that many difficulties must still surround the subject of "corroboration." The Judges of the High Court and the Lords Justices alike upheld the bastardy order made by the magistrates (Mash v. Darley, L. R. [1914], K. B. 1; 3 K. B. 1226), but, as the judgments of the two Courts proceeded upon entirely different grounds and disclosed a considerable conflict of judicial opinion, it is possible without presumption to offer some observations on the views expressed by the learned Judges.

It appeared that the respondent, a young girl about fifteen years of age, was employed as a domestic servant in the appellant's house, where, as she alleged, intercourse took place just before Christmas 1911, and afterwards, on many occasions until the month of March 1912, when her service was determined.

In August 1912, the appellant was committed to take his trial at the Northampton Assizes on a charge that "on or "about 22nd March 1912 and on divers other occasions "within six months then last past he did unlawfully and "carnally know [the respondent], she then being above "the age of thirteen and under the age of sixteen years."

In the month of October following, he was convicted on this charge and sentenced to a term of imprisonment. A few weeks after the trial the respondent was delivered of a child, and, in February 1913, she preferred a complaint under the Bastardy Act of 1872, the justices making the usual order subject to a case stated for the opinion of the High Court.

On the hearing of the complaint in bastardy, a superintendent of police deposed that he attended the assizes at Northampton, was present at the trial of the appellant, and heard him convicted and sentenced.

In a judgment delivered by Ridley, J., in which Scrutton and Bailhache, JJ., concurred, the Divisional Court held that the order of the magistrates must be supported.