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275 NOTES. 275 44 W. R. 612. In this case, according to the view taken by the Court of Appeal, there were three contemporaneous mortgages ; one of the mort- gagees assigned all his interest to the mortgagor, and there was later a foreclosure. Although the fund mortgaged was insufficient to pay the mortgage debts, the mortgagor wished to share in the fund by virtue of the assignment to him, claiuiing that there had been no merger. The court, after noting Tonlmin v. Steere, restated the doctrine of .Forbes v. Moffatt, that in the absence of evidence as to intention, equity would in- terfere to prevent merger when it would be to the interest of the parties, though in the case before them, they found evidence of a contrary inten- tion which defeated the claim of the mortgagor. Although the mort- gages were contemporaneous, it seems the case is practically that of a mortgagor trying to hold up a past debt as a shield to an existing one. The decision is the more notable, then, for so far from following Tonlmin v. Steere in extending the modification to Forbes v. Moffatt., the court tend to restrict it. The case has recently come before the House of Lords, 46 W. R. 589. The decree which the lower court had affirmed was varied on other grounds, but the statements of the law as to merger seem to have been approved. It is probable, then, that Sir William Grant's error has been wiped out by the slow processes of the law, and that Tonlmin v. Steere, first doubted, then curtailed, is now practically overruled. Sales by Auction. — The fall of the hammer in a sale by auction marks the conclusion of the contract between vendor and vendee, but that contract is worthless without a memorandum sufficient to satisfy the Statute of Frauds. In the case of yohnson v. Boyes, Irish Law Times, vol. xxx'ii. p. 460, after the agent of the plaintiff had been declared the highest bidder at an auction, — it does not appear whether for land or goods, — the vendor interposed and instructed the auctioneer not to complete the formal record of the contract. The plaintiff, during the pendency of an action at law, made application for an interlocutory in- junction to restrain a second sale. Justice Stirling denied the applica- tion. It seems he was clearly right ; the claim was at best a doubtful one, and so no ground for an injunction, and the plaintiff could show no enforceable contract on which to base his rights. Farmer v. Robinson, 2 Camp. 339 (note) ; Warwick v. Slade^ 3 Camp. 127. The infrequent dicta which suggest that the auctioneer's authority to make the memoran- dum cannot be revoked after the hammer has fallen, are merely attempts to evade the statute. The question naturally arises whether the disappointed vendee has a cause of action against the auctioneer. Probably no court would spell out a contract, that the auctioneer promised that his authority would not be revoked. Nor does it seem possible that the vendee could sue the auctioneer in tort on the ground that he has not done his duty as the vendee's agent. It is true it has been held that a memorandum of sale written by an auctioneer is a memorandum by an agent of the vendee and so sufficient to satisfy the Statute of Frauds, but the agency which the law sees imposes no duty to make a memorandum. It is clear, from the language of the cases, that it amounts merely to this, — that the ven- dee, by a nod or a lift of his hand, permits the auctioneer to sign the mem- orandum for him. Emmerson v. Heelis, 2 Taunt. 38 : Bird v. Boulter^ 4 B. 36