26 SALE BY AUCTION. 



possession seem sufficient, (a) In Scotland stoppage in 

 transitu does not rescind the contract so as to throw the 

 risk back on the seller, and deprive him of the right to 

 recover the price and charges, if these should exceed the 

 market value of what is stopped. (6) 



25. Sales of Horses by Auction. — (1.) Nature of Con- 

 tract. — The contract in sale by auction is by offer and accept- 

 ance ; (c) the offer being by bidding, the accej)tance by the fall 

 of the hammer, or by close of the bidding by the auctioneer 

 declaring the last offer to be accepted ; (d) but a bidder may 

 retract his bid,(e) and the seller his authority, (/) before the 

 hammer is down. The purchase of each lot is a separate 

 contract : (g) and a sale by auction is presumed to be for 

 cash, unless it be otherwise stipulated ; and the auctioneer 

 is not entitled to deliver a horse on credit. (A) 



26. The Exposure. — An upset price may be fixed, below 

 which a horse is not to be sold ; but if no price be fixed, 

 the horse is to be sold at the pleasure of the bidders, (i) 

 The owner himself should not bid, unless there be a power 

 reserved to him for that purpose ; (y) but anyone else ma}'- 

 bid who can purchase at a private sale.(/i;) All private 

 interference by the exposer, such as by sending a third party 

 to bid for him, and rushing up the price, has been con- 

 demned and regarded as fraudulent. (I) Where the sale is 



(fl) B.C. i. 248. 



(6) Stoppcl tfc Co., cit. But see contra, B.C. i. 231. 



(e) § 6. 



(cZ) B. Pr. § 130. There is no implied contract by advertisement of sale by 

 auction that all the goods advertised for sale will be exposed. Harris v. Nicl:erson 

 1873, L.R. 8 Q.B. 286. See slso Spencer v. Harding, 1870, L.R. 5 C.P. 561. 



(c) Payne v. Cave, 1789, 3 T.R. 148. 



(/) Per Martin, B., in Warloio v. Harrison, 1859, 29 L.J., Q.B. 14. 



(<7) Chapman v. Couston, 1871, 9 M. 675, affirmed 1872, 10 M. (H.L.) 74. 



[h) Lord Justice-Clerk Moncreiff in Macdonaldv. Henderson, 1882, 10 R. 95-100. 



(i) B. Pr. 131. 



ij) Thorn V. Macbeth, 1875, 3 R. 161. 



(k) Shiell V. Guthrie's Trs. 1874, 1 R. 1083. 



(0 Mere's Notes to Stair, xci. ; Benj. 462. 



