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latter has sufficient reason not to
proceed. 5 Burr. 2369.

2. A bidder at an auction, under the
usual conditions that the highest
bidder shall be the purchaser, may
retract his bidding any time before
the hammer is down. Payne v.
Cave. 3 Term Rep. 148.
3. If the owner of goods, or an es-
tate, put up to sale at an auction, 7.
employ putters to bid for him with-
out declaring it, and there is only
one real bidder who by means of
the puffer is induced to purchase at
a high price, such purchaser shall
not be compelled to complete the
contract: and the stat. 28 G. 3, c.
37, makes no difference. Howard
v. Castle. 6 Term Rep. 642.
See
Blatchford v. Preston, ob dict.
Term Rep. 93, 95.

8.

4. An auctioneer employed to sell the goods of a third person by auction, may maintain an action for 9. goods sold and delivered against a buyer, though the sale were at the house of such third person, and the goods were known to be his property. Williams v. Millington. 1 H. Black. 81.

5. Qu. Whether the selling goods by auction within the city of London, by an auctioneer who has paid the duty of 20s. for a licence required by the stat. 17 G. 3, c. 50, but who has not been admitted as a broker by the court of the mayor and aldermen, makes him liable to the penalty of the 6 Anne, c. 16, for acting as a broker without being so admitted? Wilkes v. Ellis. 2 H. Black. 555.

Semb. That it does not.

5. Where the agent of the owner at

owner by an agent, so as to subject the party to the auction duty for want of a notice in writing to the auctioneer (previous to the auction) of such agency, as required by stat. 19 G. 3, c. 56, and 28 G. 3, c. 37, in order to excuse the owner from the payment of the auction duty. Cruso v. Crisp. 3 East, 337.

In an action upon the statute of 1795, c. 8, against one as an auctioneer for the penalty for selling his own goods at auction after sunset, the defendant is not estopped from denying that he has been regularly licenced as an auctioneer. Clark v. Cushman. 5 Mass. 505.

A licence to an auctioneer must be granted at a meeting of the selectmen, or of the major, part of them, had for that purpose, of which meeting all the select-men must have notice. Ib.

Where the contract or job for making a road, was put up for sale at auction, and A. and B. agreed that one of them should bid, and if the contract should be struck off to the one bidding, the other should have an equal share in it, and it was struck off to B. against whom A. afterwards brought an action for a breach of the agreement between them; it was held, that the agree ment was without consideration, and void. Wilber v. Howe. 8 Johns. Rep.

444.

10. In an action of debt on an auctioneer's bond, brought by the state for duties, the state is entitled to the whole of the arrearages, though accruing for more than three months. 3 Dallas, 500.

11. An auctioneer's bond is a surety for his customers, as well as the public. 4 Dallas, 95.

an auction for the sale of an estate put it up in so many lots at certan prices, and no person bidding for the same, he put it up again in fewer lots at other certain prices; and still no person bidding, he put it up altogether in one lot, at a certain 1. price; and on no person's bidding the estate was withdrawn from sale: held, this is not a bidding of the

AUDITA QUERELA.

If an audita querela be founded upon a record, or the party be in custody, the process upon it is a scire facias; but if it be grounded on a matter of fact, or the party not

in custody, the process is a venire. Anonymous. 1 Salk. 92. 2. Audita querela must be brought where the case is doubtful. Mitford, Executor, v. Cordwell. 2 Str.

1198.

3. Where two nihils are returned, the court will relieve upon motion, without audita querela. Anonymous. 1 Salk. 92.

4. In audita querela, where the party

is in custody, scire facias is the proper process; otherwise venire and distress infinite. Clerk v. Moor. 1 Salk. 92.

5. An audita querela, quia timet, cannot be sued out by a purchaser of land, until afier an execution has been issued. Waddington and others v. Vredenburgh. 2 Johns. Cas.

227.

2.

6. The writ of audita querela must be allowed in open court, but is not, 1. of itself, a supersedeas; and where a party is not in actual custody, or sues quia timet a venire facias is the proper process. Ib.

AUTERFOITS ACQUIT.

1. One was indicted in Middlesex for perjury committed in an affidavit ; which indictment, after setting out so much of the affidavit as contained the false oath, concluded with a prout patet by the affidavit affiled in the court of B. R. at Westmins ter, &c. and on this he was acquitted after which he was indicted again in Middlesex for the same perjury, with this difference only, that the second indictment set out the jurat of the affidavit, in which it was stated to have been sworn, in London; which was traversed by an averment that in fact the defendant was so sworn in Middlesex and not in London and held that he was entitled to plead auterfoits acquit; for the jurat was not conclusive as to the place of swearing; and the same evidence as to real place of swearing the affidavit

might have been given under the first as under the second indictment; and therefore the defendant had been once before put in jeopardy for the same offence. The King v. Emden. 9 East, 437. A person tried and convicted on an indictment, and afterwards discharged, because a juror was improperly withdrawn, was again tried on a second indictment, for the same offence, and pleaded auterfoits acquit; and it was held that, as the first indictment was erroneous, the plea of former acquittal was no bar to the second indictment. The people v. Barrett and Ward. 1 Johns. Rep. 66.

AUTHOR.

Qu. Whether authors have a property in their copies, when published, independent of the statute of Queen Anne. Tonson & Collins. 1 Blackstone, 301, 321. Same point, Miller & Taylor, 675.

2. An abridgement of a book where the understanding is exercised in reducing the substance of it into a smaller compass, is a new work, and no violation of the author's property. Anon. In Chancery. Lofft, 775.

1.

AUTHORITY.

One who had voluntarily offered to pay a sum of money for the use of the poor of the parish, in order to avoid a prosecution by a magistrate upon a charge of having instigated the escape of a person in custody for a misdemeanor; which offer was consented to by the magistrate and the money accordingly paid by the party to the master of the work-house for the use of the poor; may at any rate countermand the application of the money before it is so applied, and may recover it back in an action for money

Taylor v. Len

had and received. dey. 9 East, 49. 2. A person who signs a note in the name of another, as his attorney, without any authority for that purpose, is personally liable on thenote, to the party who accepts the note, under such mistake or imposition. Dusenbury v. Ellis. 3 Johns. Cas. 70.

3. Where A. authorised B. to sign the name of A. to a promissory note for 250 dollars, for six months, and B. put A.'s name to a note for that sum, payable in sixty days, it was held, that A. was not liable for the note. A's special authority must be strictly pursued. Batty v. Carswell and Carswell. 2 Johns. Rep.

48.

4. Where an authority is confided to several persons for a private purpose, all must join in the act. Green v. Miller. 6 Johns. Rep. 39. 5. The authority of a person, as agent for the plaintiff to discharge a defendant from custody on execution, without a satisfaction of the debt, must be fully and clearly proved, and strictly pursued. Crary & Morgan v. Turner. 6 Johns. Rep. 51.

6. It is incumbent on a purchaser under a sale for taxes to prove the authority of the collector to sell. Stead v. Course. 4 Cranch, 239.

AVERMENT.

1. Where there is a deed to lead the uses of a recovery, a parol averment that the recovery was suffered to other uses, is inadmissible. And such uses can in pleading only be confessed and avoided.

But such averment may be made against the uses in a subsequent deed of declaration.

And such uses traversed. Tregany v. Fletcher. A L. Raym. 154. 2 Salle.

676.

2. No averment against the teste of a writ, when it is in support of jus

3.

4.

tice. Mason v. March. 3 Salk. 53 and 397.

If one named in the indenture does not seal, he must be excluded by an averment. Vernon and another v. Jefferys. 2 Str. 1146.

Where one affirmative is in answer to another, it ought to be averred, and not conclude to the country. Allen v. Symms. Rot. 299, 3 Salk. 209. 5. Where a request is to do a collatteral thing, it must be averred. Fitzhugh v. Dennington. 3 Salk. 308. 2 L. Raym. 1094. 2 Salk.

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ment is given thereon, it shall be re- 7. versed in toto. Judgment and transcript amended after error brought, by substituting the right avowry for one which had been entered by the plaintiff's attorney through mistake. Richards v. Carnford. 1 L. Raym. 255. 2 Salk.

580.

AWARD.

1. Submission, Effect of

11. Arbitrator and Umpire, Power of. III. Performance; of enforcing or relieving against.

I. Submission, Effect of.

1. On a reference of all matters in difference in this cause, if the arbitrators award general releases, the award is good, as to the matters referred, but void as to the residue. Pickering v. Watson. 2 Black.

2.

3.

1117.

Award made under a rule of court is quasi part of the rule. Cheeseley v. Bailey. 1 Salk. 72. 1 L. Raym.

674.

Condition of an arbitration bond, that G. F. should perform such award as should be made between plaintiff and J. F. and the award that G. F. the defendant should pay 2981. 9s. 7d. and that they should execute releases. It was held good. Cayhill v. Fitzgerald. 1 Wils. 28 and 58.

Award that a suit in Chancery shall be dismissed, is good. Knight v. Burton. 1 Salk. 75.

5. Submission to it constitutes its strength. Anonymous. Lofft, 426. 6. An award directing the release of

a duty without giving a satisfaction for it, is not, before the release is executed, a bar to an action for such duty.

An award that one party shall accept a thing from the other, does not oblige the latter to deliver it. Clapcott v. Davy. 1 L. Raym. 611.

8.

9.

Award must pursue the submission in point of form as well as in point of substance. Henderson v. Williamson. 1 Strange, 116.

Submission to award made a rule of court, though the consent was only conditional. Bailey v. Cheeseley. 1 Salk. 72.

Quære, If an award of money to be paid to a third person be good, unless it appear to be for the benefit of one of the parties. Bird v. Bird. 1 Salk. 74.

10. An award which directs the performance of an act within a limited time, a datu arbitrii is good, though it is not dated. Armitt v. Breame. 1 Salk. 76. 2 L. Rayı. 1076. 11. The costs of the arbitration to abide the event, meau such costs as according thereto, would have been lost or gained upon a verdict; always so drawn, unless special directions to the contrary. Anon. Lofft, 391.

12. A demand as executrix, is within a general submission to an award. Elletson v. Cummins. 2 Strange,

1144.

13. Submission by A. as attorney for B. concerning accounts between B. and C. good to bind A. but not B. Bacon v. Dubarry. 1 Salk. 70. 1 L. Raym. 246.

14.

Where an award is to be ready to be delivered by a particular day, at a particular place, an averment that it was made elsewhere ready to be delivered there, is good. Arbitrators cannot direct the surrender of the arbitration bonds. An award directing the payment of money by one party without awarding any thing in his favour, is void for want of mutuality. Doyley v. Burton. 1 L. Raym. 533.

15. If an award is to be made aud ready to be delivered by a particu lar day, it is sufficient to shew that it was made by the day, without adding that it was ready to be delivered.

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An award that one of the parties, o

his executors shall give a lease, is good.

re

A man may plead in bar an award for the performance of mutual independent acts before performance of Pis his part.

An award directing the release of a duty without creating a new one, is no bar to an action for such duty before the release executed.

An executor is bound by the submission of his testator.

An assumpsit lies on the mutual promises to perform an award. Freeman v. Bernard. 1 L. Raym. 247. 1 Salk. 69. 3 Salk. 45. 16. An award that the prosecution in any suit depending between the parties should cease, and be thenceforth determined, destroys the right of action, and is sufficiently final. An award that one party should on a future day pay the other a sum of money in full of all demands, is good; especially if it imports to be made upon the premises, and is of itself sufficiently mutual and final. An award of releases up to a time after the submission is not wholly void, but will oblige the parties to give releases up to the time of the submission. Squire v. Grevett.

2

L. Raymond, 961. 1 Salk. 74. Simon v. Gavil.

17. Award made upon submission of all disputes, reciting that there had been a suit at law between the parties, which had run to a great expence on both sides, and being left to arbitrator to make an end of, he did determine that they should each of them pay their own charges at law, and that defendant should pay plaintiff five shillings for his making the first breach in law; this is certain and final. Hawkins v. Colclough. 1 Burr. 274. (And see Charnley v. Winstanley, et ux. 5 East, 266. PLEADING II.) 18. The court have no authority by 9 and 10 W. 3. c. 15. to make a parol submission to an award a rule of court. Ansell v. Evans. 7 Term Rep. 1.

19. If a bond of submission to arbitration between the trustee of a wife and her husband recite, that a suit for separation has been instituted between the husband and wife in the commons, and that, in order to put an end to any contest about the terms of separation, it had been agreed that all matters should be referred to I. S., and either of the partners should be "at liberty to apply to the court to make the award a rule of court;" such submission may be made a rule of the court of common pleas under stat. 9 and 10 W. 3. Soilleux v. Herbst. 2 Bos. & Pull. 444.

20. The court have jurisdiction under that statute, though the submission bond were to make the award, instead of the submission, a rule of court. Pedley v. Westmacot. East, 603.

21.

3

Where parties by an indorsement in general terms on the bonds of submission to arbitration agree that the time for making the award shall be enlarged, such agreement virtually includes all the terms of the original submission to which it has reference, amongst others, that the submission for such enlarged time shall be made a rule of court; and consequently the party is liable to an attachment for non-performance of an award made within such enlarged time, under the statute 9 and 10 W. 3. c. 15. Evans v. Thompson. 5 East, 189.

22. A submission to arbitration of all matters in difference between the parties in the suit is not confined to the subject matter in the particular action depending, but will extend to cross demands between the parties, though not pleaded by way of setoff; and the costs being to abide the event makes no difference. Malcolm v. Fullarton. 2 Term Rep. 645.

23. But a reference of all matters in dispute in the cause between the parties is confined solely to the matters in dispute in that suit. 2 Term Rep. 641.

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