I I from the case of

5012 CLARK ‘U. KING 8 T. R. 147.

prohatur : but it is not founded in law. And there are even additional words in this case, “leaving no issue behind h i m ; ^” which necessarily import t h a t t h e testator meant at t h e time of his son’s death. T h e subsequent parts of the will also convey the same i d e a ; for the devisor mentions this event as likely t o happeti in t h e lifetime of his widow, or of his younger sori or daughters. Therefore I have not the least doubt b u t t h a t this is a good executory devise, t o take place within t h e time allowed by law, which i s borrowed by analogy from legal formal limitations, namely, for a life or lives in being, with a remainder in tail t o uiiborn children, who cantiot bar it till twerity- one. W i t h respect t o t h e other point, the shape of t h e question must be altered (c) before we certify t o the Lord Chancellor; for, as i t starids now, we cantiot take cognizance of t h e questiori i n a

[147]

Court of Law. B u t if we were t o consider this as a limitation of real property, iristead of land, to be converted into money, this may he supported as a cotitiugericy with a double aspect. Atid I should have iio difficulty in saying that, in t h e event of Philip Dobin dying without leaving issue at his death, t h e widow, if she were alive, might take ; if not, the second son, or t h e daughters of the devisor.

Ashhurst, J. and Grose, J.-thought I this was tiot to be distinguished I i t i pririciple from t h e case of Pells v. Brown.

T h e following certificate was afterwards sent t o t h e Court of Chancery :

Having heard counsel on t h e case above referred t o us, we are of opinion t h a t P.

Dobin took a n estate in fee-simple in t h e premises above devised t o h i m : but, as Philip died without issue living at t h e time of his death, we are of opinion t h a t the f u r t h e r disposition made h y the testator in t h a t event is good by way of executory

devise. KENYON.

W. H. ASHHURST.

N. GROSE.(a)

CLARK against KING AND OTHERS. Friday, May l s t , 1789. A plea of preecriptiori for conimoti in a que estate is good after verdict, though i t be riot in express terms alleged t h a t t h e owners of t h e estate have used i t from time immemorial.

T h i s was a n action of replevin for taking cattle a t Otmoor., Oxford. T h e defen- dants made cogtiizarice as bailiffs of Lord Abitigdon, whose soil arid freehold Otmoor was; and they justified taking the cattle as doing damage on the nioor. T h e plea in bar set forth t h a t long before, arid at t h e time when, &c. A. Croke was seised in his demesne as of fee of arid in a certaiii messuage and 150 acres of land with t h e appur- tenances, in Studley, Bucks, ^“ And t h a t the said A. Croke atid all those whose estate he then had, and iiow has, of atid in t h e said messuage and land with the appurterie~ices, have had and used, and been accustomed to have a i d use, atid of right ought, $c. for themselves and their farmers and tenants, occupiers of the said messuage ^and larid with the appurtenances for the time, common of pasture on Otmoor for commonable cattle, &e.)’ T h e replication traversed the right as stated in t h e plea i n b a r ; and on t h e trial t h e plaintitf had a verdict.

[le]

Lane now moved in arrest of judgment, because t h e plea in bar did not state t h a t A. Croke, and those whose estate he had, had beer1 immemorially entitled to t h e right of common : t h a t i t could not be supported as a prescriptive right, as tiot being claimed time o u t of mind ; arid that, though the evidence might prove t h e right as laid, it could not enlarge it.

P e r Curiam. Although this is not accurately stated, y e t a t a n y rate it is snfioieiit after verdict, It states a right of common in all those who have held tlrat e s t a t e : and unless a prescriptive right had been proved, t h e plaintiff could not have obtained a verdict.

But

R u l e refused.

PAYNE against CAVE. Saturday, M a y 2d, 1789. A bidder at an auction, under t h e usual conditions t h a t the highest bidder shall he the purchaser, may retract his bidding a n y time before t h e hammer is down.

T h i s was a n action tried a t t h e sittings after last term at Guildhall before Lord Kenyon, wherein the declaration stated, t h a t the plaintiif, on 22d September 1788,

(c) See S a b b a r h v. Sabbarton, Rep. t. Talb. 245 ; and Doe v. Brabant, post, 4 vol.

(a) Mr. J. Buller was sitting for t h e Lord Chancellor when this case was argued.

3 T. B. 149.

503

was possessed of a certain worm-tub, and a pewter worm in t h e same, which were then and there about to be sold by public auction by oiie S. M. the agent of the plaintiff in t h a t behalf; t h e conditions of which sale were t o be the usual conditions of sale of g o d s sold b y auction, REc. of all which premises t h e defendant afterwards, t o wit, &c. had notice; atid thereupon t h e defendaiit in coiisideratiori t h a t the plaintiff, at t h e special instance aud request of t h e defendant, did then aiid there undertake and promise bo perform t h e coriditiotis of t h e said sale, to be performed by t h e plaintiff as seller, &c. utidertook, arid theri arid there promised t h e plaintiff to perform t h e COII-

ditions of the sale, t o be performed on t h e p a r t of t h e buyer, &c. And the plaintiff avers t h a t t h e cotiditions of sale, hereiri-after tnentioned, are usual conditions of sale of goods sold by auction, t o wit, t h a t t h e highest bidder should be t h e purchaser, and should deposit five shillirigs i n t h e pound, arid t h a t i f the lot purchased were riot paid for arid taken awa,y in two days time, it should be put u p agairi a n d resold, &c. [stat- ing all t h e conditio~is]. It then stated, t h a t the defendant became t h e purchaser of t h e lot iti question for 401. and was requested t o pay the usual deposit, which he refused, &c. A t the trial, the plairitiVs connsel o p m e d t h e case thus :-The goods were p u t u p in one lot a t an auction; there were several bidders, of whom t h e defendant [I491 was the last, who bid 401. ; the anctiorieer dwelt oti the bidding, 011

which t h e deferidatit said, “ W h y d o you d w e l l ? you will riot get more.” T h e auctioneer said t h a t he was itiforined t h e worm weighed a t least 1300 cwt. and was worth more than 401. ^j the clefetidaiit then asked him whether he woulil warrant i t to weigh so much, arid receiving ati answer in t h e negative, he then declared t h a t he would uot take it, arid refused t o p i y for it. It was re-sold oii a subsequent day’s sale for 501. t o t h e defendaiit, against whom t h e action was brought for the difference Lord Kenyon being of opitiioii, on this statement of the case, t h a t the deferidatit was at liberty t o withdraw his bitlditig any time before t h e hammer was ktiocked down, iiorisuited the plaintiff.

Walton now moved t o set aside the riorisriit, oii t h e ground t h a t the bidder was hourid b y the conditions of the sale t o abide by his bidditig, arid could n o t retract.

fly t h e a c t of bidding, he acceded t o those conditions, one of which was, that t h e highest bidder should be t,he buyer. T h e hammer is suspeiidetl, not for t h e benefit of t h e bidder, or t o give him at1 opportunity of repetitiiig, but for the benefit of the seller: iri the meaii time the persoti who bid last is R coritlitiorial purchaser, if riobody bids more. Otherwise i t is iti t h e power of a n y person to injure t h e veridor, because all t h e former bidrlings are discharged by the last ; and, as i t happened ^{i t i} this very iristance, t h e goods may thereby ultiniately be sold for less thari t h e persoti who was last outibid mould h a r e given for them. T h e case of Sivwn v. MetiL;ier(a), which was mentioned at the trial, does riot apply ; t h a t turned 011 the S t a t u t e of Frauds.

T h e auctioiieer is t h e agent of the veridor, a n d t,he assent of both parties is necessary t o make t h e cotitract bitidirig;

t h a t is signified on the part of t h e seller by kuocking dowri the hammer, which was not dotie here till t h e defendant had retracted. AII auctiori is uot uriaptly calletl locus pcenitentiaa. Every bidding is nothing more thari an offer on oiie side, which is not biriditig ⁰¹¹ either side till it is assented to. But according t o what is now coiltended for, one party would be bourid by the offer, arid t h e other not, which car1 never be allowed.

Rule refused.

THE KING 21. JUSTICES OF NORTH RIDING OF YORKSHIRE

Tho Court thought t h e notisuit very proper.

[I501 ^{THE KING agUi7b.d} THE JUSTICES O F THE NORTH RIDING OF YORKSHIRE

Saturday, M a y 2d, 1769. T h e Quarter Sessions are [lot bound t o receive, arid adjourii t h e hearing of, an appeal against an order of removal at t h e n e x t sessions, if they t h i n k t h e appellants had sufficient, t h e to come prepared t o t r y it, arid to give notice to the respondents.

[Referrecl to,

R.

D. Suirey J.J., 1880, 6 Q. B. D. 104.1

T h i s was a rule calling on t h e defendants t o shew cause why a matidamus should riot issue, directing them t o receive, hear, a n d cletermiiie, an appeal of the irihabitmts of t h e township of Gate Helmsley, against a n order of two justices for t h e removal of

(a) 3 Burr. 1921.