

AUCTION. 



H to morebanUtomoter* fciqmaMa^ the tain at Lyon. Henry IV .., 

 108, mated exemption to MM subjects of the repablic of Geneva. 

 Louis XIV., in 1702. to th* subject* of the Duke of Lorraine. (C'haales, 

 ' Diet.; torn. i. pp. W, M7.) The Swiss and the Scotch of the king's 

 guard had been exempted by King Henry II. (Bacquet, ' Trait* de 

 Droit d'Aubaine.' p. i 



Partial exemptions tram the Droit d'Aubaine were frequently con- 

 ventional, and formed clause* in treaties, which stipulated for reciprocal 

 relief to the subject* of the eontractinf parties ; thaw exemptions, it is 

 probable, continued no longer <*" "> I*** which thc trMt 7 }utA 

 procured, and some related to moveable goods only. 



In the treaty of commerce between England and France, in 1606, 

 the ' Jus Albinatos,' as it is termed, was to be abandoned as related to 

 the Knglinh : " ita ut in posterum aliquo modo jure Albinatas fisco 

 ddici non paesint" iKhyni., ' Fnxl.,' torn. xvi. p. 650.) Letters-patent 

 of Louis XI V., in 1669, confirmed in the parliament of Grenoble in 

 1674, exempted the Savoyards ; and this exemption was confirmed by 

 the Treaty of Utrecht in 1718. The inhabitants of the Catholic can- 

 tons of Switxerland were exempted by treaty in 1715. The particulars 

 of numerous other conventional treaties are recorded in M. Gaschon's 

 work, in the speech of the Due de Levis already referred to, and in the 

 ' Rapport ' from the Marquis de Clennont Tonnerre to the French 

 Chamber of Peer*, printed in the ' Moniteur ' for 1819, pp. 96-98. 



Louis XV. granted exemptions, first to Denmark and Sweden ; then, 

 in the treaty called the ' Family Compact,' to Spain and Naples ; to 

 Austria, in 1766; to Bavaria, in 1768; to the noblesse of Franconia, 

 Suabia, and the Upper and Lower Rhine, in 1769 ; to the Protestant 

 cantons of Switzerland, in 1771 ; and to Holland, in 1773. In 

 Louis XVI.'s reign, other treaties of the same kind were made with 

 Saxony, Poland, Portugal, and the United States. The abolition of 

 the Aubaine, as it related to Russia, was a distinct article of another 

 treaty ; and finally, by letters-patent, dated January 1787, its abolition 

 was pronounced in favour of the subjects of Great Britain. 



The National Assembly, by laws dated August 6, 1790, and April 13, 

 1791 (confirmed by a constitutional Act 3rd of September 17'.'1), 

 abolished the Droit d'Aubaine entirely. It was nevertheless re-esta- 

 blkhed in 1804. (' Moniteur' for 1818, p. 651.) The Treaty of Paris, 

 30th of April, 1814, confirmed the exemptions from the Aubaine as far 

 as they were acknowledged in existing treaties. The final abolition of 

 the Droit d'Aubaine, as already mentioned, was proposed by the Due 

 de Levis, April 14, 1818, and passed into a law July 14, 1819, confirm- 

 ing the laws of 1790 and 1791. Foreigners can now hold lands in 

 France by as firm a tenure as native subjects. 



The Droit d'Aubaine was occasionally relaxed by the kings of 

 France upon minor considerations. In the very early part of the 14th 

 century, an exemption was obtained by the University of Paris for its 

 students, as an encouragement to their increasing numbers. Charles V. 

 granted the privilege in 1S64 to such Castilian mariners as wished to 

 trade with France. In 1866 he extended it to Italian merchants who 

 traded to Niames. The fairs of Champagne were encouraged in the 

 same manner ; and exemptions to traders were also granted by 

 Charles VIII. and Louis XI. Francis I. granted the exemption to 

 foreigners who served in his army ; Henry IV. to those who drained 

 the marshes, or worked in the tapestry-looms. Louis XIV. ev 

 the exemption to the particular manufacturers who worked at Beauvais 

 and the Gobelin- ; then to the glass-manufacturers who hod come from 

 Venice ; in 1662 to the Dunkirkers, whose town he had acquired by 

 purduuo from England ; and, lastly, to strangers settled at Marseille, 

 that city having become the entrepot of products from the Levant. 



Ambassadors and persons in their suite were not subjected to the 

 Droit d'Aubaine ; nor did H affect persons accidentally passing through 

 the country. Still, it was no small disgrace to the French law, that 

 this barbarous custom should have so long remained among a p- 

 highly civilised. Bouteiller, one of their own jurisprudents, who wrote 

 a* early as the 15th century, calls it " un Droit liaynciix." (' Somme 

 Rural,' foL, Lyon, 1500, fol. ii.) 



That the Droit d'Aubaine existed in Italy, in the Papal States, in thc 

 1 1th. 12th, and 13th centuries, seems established by Muratori. ' Anti.]. 

 Ital. Medii Jivi.,' fol. Mediol. 1739, torn. ii. ool 1 I.' 



An extensive treatise on the Droit d'Aubaino has been already 

 quoted in the works of Jean Bacquet, avocat de Hoi en la C'hambre de 

 Three- >r, fol., Paris, 1665. See also ' Memoires du Droit d'Aubniin-.' at 

 the end of M. Dupuy's ' Traitez touchant les Droits du Roy tres 

 Chrestien,' fol., Par., 1055 ; and the ' Coutumes du Balliage de Vitry 

 en Perthoi*,' par Estiennc Diirand, fol., Chalons, 1722, p. 254. Hn't 

 the most comprehensive view of this law, in all its bearings, will be 

 found in the ' Repertoire Universel ct Raisonne' de Jurisprudence,' par 

 M. Merlin, 4to, Paris, 1827, torn, i., p. 528, art. ' Aubaine;' torn, vii., 

 p. 416, art. ' Heritier.' The 'Moniteur*' of 1818 and 1819 contain 

 abstracts of the discussions while the abolition was passing through 

 the two chambers at Paris. See the latter year, pp. 814, 316, 609, 

 610, 728, 729. The chief passage* in the former year have been already 



. . ' : 



Al< i I"N. a method employed for the sale of various descriptions 

 of property. This practice originated with the Romans, who gave it 

 the descriptive name of a VI in, an increase, because the property was 

 sold to him who would offer most for it. In more modern times, a 

 different method of isle ha* bern sometime* adopted, to which thc 



name of auction is equally, although not so correctly, applied 

 latter method, which is called a Ihitrh auction, thus indicating the 

 local origin of the practice, consists in the public offer of pro|- 

 a price beyond its value, and then gradually lowering or diminishing 

 that price until some one among the company consents to become the 



The first-described mode of sale by auction was established 

 Romans for the disposal of military spoils, and was conducted tab 

 A <i*M, that is under a spear, which was stuck into the ground UJ...M 

 the occasion. This expression was continued, and sales were declared 

 to be conducted !> luutd long after the spear was dispensed with. In 

 the same manner, a company is in the present day invited to a ' sale 

 by the candle,' or 'by the inch of candle,' with as little regard to 

 actual practice. The origin of this expression arose from the employ- 

 ment of candles as the means of measuring time, it being declar< . 

 no one lot of good* should continue to be offered to the I milling* of 

 the company for a longer time than would suffice for tin- lnmmig 

 of one inch of candle ; as soon as this rude kind of measure had 

 wasted to that extent, the then highest bidder was declared to be 

 the purchaser. 



It is a common rule in law that no contract is binding without the 

 assent of both parties. In sales by auction, the assent of the ) 

 given by means of his bidding, while the assent of the seller is signified 

 by the foil of a hammer ; and until this declaration has been made, the 

 intending purchaser is at liberty to withdraw his bidding. 



It is a common practice for the owner of property offered for sale 

 by auction to reserve to himself the privilege of bidding, and, as it is 

 termed, buying in his goods, if the price offered by others should nut 

 suit his convenience. This practice was held* by the civil law to be 

 illegal, and even to partake of the nature of r, 1 BO lately as 



the time of Lord Man*ti<-ld. private biddings at auctions were so 

 considered. In the present . \ are in it only . 



by the law, but the legislature so far reaoguked the propriety"!" tin- 

 practice, that in cases where the property had been bought in 

 by the proprietor or by his declared agent, general the 



auctioneer, no auction duty was chargeable. 



It has been laid down, th.it the buyer of goods at tin auction < 

 be held to the performance of his contract, in cases where he v. 

 only bond fidt bidder at the sale, and where fmlJir in .tice was not 

 of the intention of the owner of the goods ti bid. e\m though his 

 agent was authorised to )>id only to a certain sum. This i 

 intended to act as a protection to the public against tin- practice com- 

 monly resorted to by disreputable auctioneers, of employing ) 

 to make mock bidding* with the view of raising the price l.y tln-ir 

 apparent comjictition : the persons thus employed are aptly called 

 puffert. In many large towns, and more especially in London, many 

 persons make a trade of holding auctn nix of inferior and ill-made goods ; 

 persons called barktrttxe generally placed by them at the dour inviting 

 strangers to enter, and puffers are always employed, who bid n. 

 the articles than they are worth, and thus entice the unwary. Many 

 ineffectual attempts have been made to put a stop to these practices. 



The auctioneer is considered the agent of both parties, vendors and 

 purchasers. In the language of the judges in a late cose, "a bidder, 

 by his silence when the hammer falls, confers an authority on the 

 auctioneer to execute the contract on his behalf." He can tin 

 bind the parties by his signature according to the requisition of the 

 Statute of Frauds, which renders it necessary in contracts of sale of 

 'lands or any interest in or concerning them,' and <>f ;>(* al.,,\,- tin- 

 value of 101.. that some ' note or memorandum sin >u!< > l>ythe 



parties or their agents lawfully authorised.' And such signature is 

 note held sufficient even in an action brought by the auctioneer against 

 the vendor in his own name. It has been doubted therefore, whether 

 a bidder may not retract (in coses within the statute) at any time 

 before the actual written entry. The auctioneer also stands in the 

 situation of a stakeholder of the deposited part of the purchase-money, 

 which he i not at liberty to part with till the sale has been carried 

 into effect; and he cannot, at least after notice, discharge himscli by 

 paying over the amount to the vendor. Fr. mi tliis ]>ouliarit.y of hi* 

 position it results that he is now in<t held liable for any interest on, 

 ..r .nlv.mt.age which ho may make from, tin- money in his hands. In 

 this respect his situation differs from that of a mere agent, an 

 from that of one of the contracting parties (the vendor), from whom 

 " interest is recoverable in the nature of damages for a breach of Un- 

 original contract on the part of the vendor, by whose failui 

 good title the vendee has for a time lost the use of his money." Mr. 

 Justice James Parke.) An auctioneer (like any other agent and trustee 

 concerned in the sale of property) is forbidden to buy on his, own 

 account. And where he sells without disclosing the name of his prin- 

 cipal, an action will lie against himself for damages on the breach of 

 contract. 



The conditions of sale constitute the terns of the bargain, and 

 purchasers a: bo take notice of them. The late I. ><! l.ll.n 



borough urness on the part of auctioneer* in 



framing particulars would arc. i,l m < 1K - M . There is always 



either a suppression of the fair dcs<-iipti"ii of the premises, or some- 

 thing stated which does not ! m ; and in favour of j 



MI g how little knowledge the parties have of the thing old, 

 much more particularity and fairness might be expected." The con- 



