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latter has sufficient reason not to owner by an agent, so as to subject proceed. 5 Burt. 2369.
the party to the auction duty for 2. A bidder at an auction, under the want of a notice in writing to the
usual conditions that the highest auctioneer (previous to the auction) bidder shall be the purchaser, may of such agency, as required by stat. retract his bidding any time before 19 G. 3, c. 56, and 28 G. 3, c. 37, i
,in the hammer is down. Payne v. order to excuse the owner from the Cave. 3 Term Rep. 148.
payment of the auction duty. Cru3. If the owner of goods, or an es- Crisp. 3 East, 337.
tate, put up to sale at an auction, 7. In an action upon the statute of employ puffers to bid for him with
1795, c. 8, against one as an aucout declaring it, and there is only tioneer for the penalty for selling one real bidder who by means of his own goods at auction after sunthe puffer is induced to purchase at set, the defendant is not estopped a high price, such purchaser shall from denying that he has been reg. not be compelled to complete the ularly licenced as an auctioneer. contract : and the stat. 28 G. 3, c. Clark v. Cushman. 5 Mass. 507. 37, makes no difference. Howard 8. A licence to an auctioneer must v. Castle.
6 Term Rep. 642. See be granted at a meeting of the seBlatchford v. Preston, ob dict. 8 lectmen, or of the major, part of Term Rep. 93, 93.
them, had for that purpose, of An auctioneer employed to sell which mecting all the select-men the goods of a third person by auc- must have notice. Ib. tion, nay maintain an action for 9. Where the contract or job for goods sold and delivered against a making a road, was put up for sale buyer, though the sale were at the at auction, and A. and B. agreed house of such third person, and the that one of them should bid, and if goods were known to be his proper- the contract should be struck off to ty. Williams v. Millington. i H. the one bidding, the other should Black. 81.
have an equal share in it, and it was 5. Qu. Whether the selling goods by struck off to B. against whom A.
auction within the city of London, afterwards brought an action for a by an auetioneer who has paid the breach of the agreement between duty of 20s. for a licence required them; it was held, that the agree, by the stat. 17 G. 3, c. 50, but who ment was without consideration, and has not been admitted as a broker void. Wilber v. Howe. 8 Jolins. Rep. by the court of the mayor and al- 444. dermen, makes him liable to the 10. In an action of debt on av aucpenalty of the 6 Anne, c. 16, for act- tioneer's bond, brought by the state ing as a broker without being so for duties, the state is entitled to admitted? Wilkes v. Ellis. 2 H. the whole of the arrearages, though Black. 555.
accruing for more than three Semb. That it does not.
months. 3 Dallas, 500. 6. Where the agent of the owner at 11. An auctioneer's bond is a surety
an auction for the sale of an estate for his customers, as well as the put it up in so many lots at certan public. 4 Dallas, 93. prices, and no person bidding for the same, he put it up again in fewer lots at other certain prices; and AUDITA QUERELA. still no person bidding, he put it up altogether in one lot, at a certain 1. If an audita querela be founded price; and on no person's bidding
upon a record, or the party be in the estate was withdrawn from sale: custody, the process upon it is a held, this is not a bidding of the scire facias ; but if it be grounded
on a matter of fact, or the party not
in custody, the process is a venire.
might have been given under the Anonymous. 1 Salk. 92.
first as under the second indict2, Mudita querela inust be brought ment; and therefore the defendant
where the case is doubtful. Mit. had been once before put in jeopford, Executor, vi Cordwell. 2 Str. ardy for the same offence. The 1198.
King v. Emden. 9 East, 437. 3. Where two nihils are returned, 2. A person tried and convicted on
the court will relieve upon motion, an indictment, and afterwards diswithout audita querela. Anonymous. charged, because a juror was im1 Salk. 92.
properly withdrawn, was again tri4. In audita querela, where the party ed on a second indictment, for the
is in custody, scire facias is the pro- same offence, and pleaded auterfoits per process; otherwise renire and
acquit ; and it was held that, as the distress infinite. Clerk v. Moor. first indictment was erroneous, the 1 Salk. 92.
plea of former acquittal was no bar 5. An audita querela, quia timet, can- to the second indictment. The peo
not be sued out by a purchaser of ple v. Barrett and Ward. 1 Johns. land, until afier an execution has Rep. 66. been issued. Waddington and others v. Vredenburgh. 2 Johns. Cas. 227.
AUTHOR. 6. The writ of audita querela must be
allowed in open court, but is not, 1. Qu. Whether authors have a proof itself, a supersedeas; and where perty in their copies, when publisha party is not in actual custody, or ed, independent of the statute of sues quia timet a venire facias is the Queen Anne. Tonson & Collins. 1 proper process. Ib.
Blackstone, 301, 321. "Same point,
Miller & Taylor, 675.
2. An abridgement of a book where AUTERFOITS ACQUIT. the understanding is exercised in
reducing the substance of it into a 1. One was indicted in Middlesex for smaller compass, is a new work,
perjury committed in an affidavit; and no violation of the author's which indictment, after setting out property.
Anon. In Chancery. so much of the affidavit as contain- Loty, 775. ed the false oath, concluded with a prout patet by the affidavit affiled in the court of B. R. 'at Westmins.
AUTHORITY. ter, &c. and on this he was acquitted: after which he was indicted a- 1. One who had voluntarily offered gain in Middlesex for the same per- to pay a sum of money for the use jury, with this difference only, that of the poor of the parish, in order the second indictment set out the ju- to avoid a prosecution by a magisrat of the affidavit, in which it was trate upon a charge of having instistated to have been sworn, in Lon- gated the escape of a person in cusdon ; which was traversed by an tody for a misdemeanor ; which ofaverment that in' fact the defend- ter was consented to by the magisant was so sworn in Middlesex and trate and the money accordingly not in London and held that he paid by the party to the master of was entitled to plead auterfoits ac- the work-house for the use of the quit ; for the jurat was not conclu- poor; may at any rate countersive as to the place of swearing; mand the application of the money and the same evidence as to real before it is so applied, and may replace of swearing the affidavit cover it back in an action for money
had and received. Taylor v. Len- tice. Mason v. March. 3 Salk. 53 dey. 9 East, 19.
and 397. 2. A person who signs a note in the 3. If one named in the indenture does
name of another, as his attorney, not seal, he must be excluded by an without any authority for that pur- averment. Vernon and another v. pose, is personally liable on the Jefferys. 2 Str. 1146. note, to the party who accepts the 4. Where one affirmative is in answer to pote, under such mistake or imposi- another, it ought to be averred, and tion. Dusenbury v. Ellis. 3 Johns. not conclude to the country. Allen Cas. 70.
v. Symms Rot. 299, 3 Salk. 209. 3. Where A. authorised B. to sign 5. Where a request is to do a collat
the name of 3. to a promissory teral thing, it must be averred. note for 250 dollars, for six months, Fitzhugh v. Dennington. 3 Salk. and B. put A.'s name to a note for 308. 2 L. Raym. 1094. 2 Salk, that sum, payable in sixty days, it 585. was held, that A. was not liable for 6. The signification of Welch words the note. A's special authority must need not be explained in a court in be strictly pursued. Batty v. Cars- which that language is understood. well and Carswell. 2 Johns. Rep.
Llewellyn y. Pinock.
1 L. Raym. 48.
233. 4. Where an authority is confided to several persons for a private pur. pose, all must join in the act. Green
AVOWRY. V. Miller. 6 Johns. Rep. 39. 5. The authority of a person, as a- 1. If the grantee of a rent charge a
gent for the plaintiff to discharge a vows upon several undertenants for defendant from custody on execu- the same rent, the court will, upon tion, without a satisfaction of the a tender pleaded by the undertendebt, must be fully and clearly ants, make an order, that the payproved, and strictly pursued. Cra- ment of the rent into court in one ry & Morgan v. Turner. 6 Johns. action shall serve for all. AnonyRep. 51.
1 L. Raym. 429. 6. It is incumbent on a purchaser 2. Though the consideration of a under a sale for taxes to prove the port duty be the immemorial repair authority of the collector to sell. of the port, an avowry for the duty Stead v. Course. 4 Cranch, 239. need not state that the port is in re,
As to port duties directed to be paid AVERMENT.
by the exporter of goods, the mas
ter of the vessel in which the goods 1. Where there is a deed to lead the are exported is to be looked upon as
Uses of a recovery, a parol aver- the exporter. ment that the recovery was suffered And if the payment can be enforced by to other uses, is inadmissible.
distress, the anchor, sails, and caAnd such uses can in pleading only be bles of his vessel may be distrained confessed and avoided.
for it. Vinkinsterne v. Ebden. 1 But such averment may be made a- L. Raymond, 384. 1 Salk. 248.
gainst the uses in a subsequent deed 3. A general allegation that lands of deelaration.
lie in several parishes, is good, at And such uses traversed. Tregany
least, after verdict.
An avowry v. Fletcher. i L. Raym. 154. 2 Salk. for more than on the face of it is 676.
due, is bad. 2. No averment against the teste of But it may be abated in part before
a writ, when it is in support of jus- judgment, though if an entire judg.
ment is given thereon, it shall be re- 17. Award must pursue the submisversed in toto.
sion in point of form as well as in Judgment and transcript annended af- point of substance.
Henderson v. ter error brought, by substituting Williamson. 1 Strange, 116. the right avowry for one which had 8. Submission to award made a rule been entered by the plaintiff's attor- of court, though the consent was onjiey through mistake.
Richards v. ly conditional. Bailey v. Cheeseley. Carnford. 1 L. Raym. 255. 2 Salk. 1 Salk. 72. 580.
9. Quære, If an award of money to
be paid to a third person be good,
unless it appear to be for the beneAWARD. fit of one of the parties.
Bird. 1 Salk. 74. 1. Submission, Effect of
10. An award which directs the perII. Arbitrator and Umpire, Power of formance of an act within a limited II. Perforinance; of enforcing or re- time, a datu arbitrii is good, though lieving against.
it is not dated. Armitt Breame.
1 Salk. 76. 2 L. Raym. 1076. I. Submission, Effect of. 11. The costs of the arbitration to a
bide the event, meau such costs as 1. On a reference of all matters in according thereto, would have been
difference in this cause, if the arbi- lost or gained upon a verdict; altrators award general releases, the ways so drawn, unless special diaward is good, as to the matters re
rections to the contrary.
Anon. ferred, but void as to the residue. Lofft, 391. Pickering v. Watson. 2 Black. 12. A demand as executris, is within 1117.
a general submission to an award. 2. Award made under a rule of court Elletson v. Cummins. 2 Strange
is quasi part of the rule. Cheeseley 1144. v. Bailey. 1 Salk. 72. 1 L. Haym. 13. Submission by A. as attorney for 674.
B. concerning accounts between B. 3. Condition of an arbitration bond, and C. good to bind A. but not B.
that G. F. should perform such a- Bacon v. Dubarry. 1 Salk. 70. ! ward as should be made between L. Raym. 246. plaintiff and J. F. and the award 14. Where an award is to be ready to That G. F. the defendant should be delivered by a particular day, at pay 298l. 9s. 7d. and that they a particular place, an averment should execute ases.
that was made elsewhere ready held good. Cayhill v. Fitzgerald. to be delivered there, is good. 1 Wils, 28 and 58.
Arbitrators cannot direct the surrendAward that a suit in Chancery er of the arbitration bonds. An ashall be dismissed, is good. Knight ward directing the payment of monv. Burton. 1 Salk. 75.
ey by one party without awarding 5. Submission to it constitutes its any thing in his favour, is void for
strength. Anonymous. Lofft, 426. want of mutuality. Doyley v. Bur6. An award directing the release of ton. 1 L. Raym. 533.
a duty without giving a satisfaction 15. If an award is to be made and for it, is not, before the release is ready to be delivered by a particu: exeeuted, a bar to an action for lar day, it is sullicient to shew that such duty.
it was made by the day, without An award that one party shall accept adding that it was ready to be de
a thing from the other, does not o- livered. blige the latter to deliver it. Clar. An award that one of the parties, o! cott v. Dary. 1 L. Raym. 611,
his executors shall give a re- 19. If a bond of submission to arbitralease, is good.
tion between the trastee of a wife A man may plead in bar an award for and her husband recite, that a suit
the perforinance of mutual inde- for separation has been instituted pendent acts before performance of between the husband and wife in
the commons, and that, in order to An award directing the release of a put an end to any contest about the
daty without creating a new one, is terms of separation, it had been ano bar to an action for such duty be- greed that all matters should be refore the release executed.
ferred to I. S., and either of the An executor is bound by the submis- partners should be " at liberty to sion of his testator.
apply to the court to make the aAn assumpsit lies on the mutual pro- ward a rule of court;" such submises to perform an award. Free- mission
be made a rule of the man v. Bernard.
1 L. Raym. 247. court of common pleas under stat. 1 Salk, 69. 3 Salk. 43.
9 and 10 W. 3. Soilleur v. Herbst. 16. An award that the prosecution in 2 Bos. of Pull. 4-14.
any suit depending between the 20. The court have jurisdiction under parties should cease, and be thence- that statute, though the submission forth determined, destroys the right bond were to make the award, inof action, and is sufficiently final. stead of the submission, a rule of An award that one party should on court. Pedley v. Westmacot. 3 a future day pay the other a sum of East, 603. money in full of all demands, is 21. Where parties by an indorsement good; especially if it imports to be in general terms on the bonds of made upon the premises, and is of submission to arbitration
that itself sufficiently mutual and final. the time for inaking the award shall An award of releases up to a time be enlarged, such agreement virtuafter the submission is not wholly ally includes all the terms of the void, but will oblige the parties to original submission to which it has give releases up to the time of the reference, amongst others, that the submission. Squire v. Grerett. 2 submission for such enlarged time L. Raymond, 961. 1 Salk. 74. Si- shall be made a rule of court ; and mon v. Gavil.
consequently the party is liable to an 17. Award made upou submission of attachment for non-performance of all disputes, reeiting that there had an award made within such enlarged been a suit at law between the
time, under the statute 9 and 10 W. ties, which had run to a great ex- 3. c. 15. Evans v. Thompson. 5 pence on both sides, and being left ; East, 189. to arbitrator to make an end of, 22. A submission to arbitration of all he did determine that they should matters in difference between the pareach of them pay their own charges ties in the suit is not confined to the at law, and that defendant should subject matter in the particular acpay plaintiff five shillings for his tion depending, but will extend to making the first breach in law; this cross demands between the parties, is certain and final. Hawkins v. though not pleaded by way of setColclough. 1 Burr. 274.
off; and the costs being to abide (And see Charnley v. Winstanley, et the event makes no
difference. ux. 5 East, 266. PLEADING II.) Malcolm v. Fullarton. 2 Term 18. The court have no authority by Rep. 645.
9 and 10 W. 3. c. 15. to make a pa- 23. But a reference of all matters in rol submission to an award a rule dispute in the cause between the parof court. Ansell v. Evans. Term ties is confined solely to the matters Rep. 1.
in dispute in that suit. 2 lerm Rep. 611.