draft being evidence of the terms of credit, the bill of lading is deliverable, and the title passes, upon its acceptance;26 but in the case of a sight draft, not until payment." That the vessel belongs to the vendee does not affect this principle.28 This presumption, however, is not conclusive, but yields to other proof of intention."9 If the bill of lading comes into the buyer's possession its delivery is conditional upon his paying or accepting the draft, and between the parties no title passes to him.30 Usage of trade does not vary this principle, nor is it affected by the sending of an 31 count and risk, and an invoice and bill of lading sent to him, on receipt of which he was to send a banker's draft; the plaintiff failed to do this; and the court held, that the property in the wheat passed; that actual delivery should depend upon a compli ance with the condition, and therefore, that the defendant was justified in preventing such a delivery. Wilmshurst v. Bowker, 2 Man. & Gran. 792, 40 E. C. L. 629." Forbes v. Marsh, 15 Conn. 384, 395. "If the bill of lading, or other written evidence of the delivery to the carrier, be taken in the name of the consignee or be transferred to him by endorsement, the strongest proof is afforded of the intention to transfer an absolute title to the vendee. But the vendor may retain his hold upon the goods to secure payment of the price, although he puts them in course of transportation to the place of destination by delivery to a carrier. The appropriation which he then makes is said to be provisional or conditional." Merchants' National Bank v. Bangs, 102 Mass. 291, 295. 26. St. Paul Mill Co. v. Great Western Dispatch Co., 27 Fed. 434; National Bank of Commerce v. Merchants' National Bank of Memphis, 91 U. S. 92; Moore v. Louisiana National Bank, 44 La. Ann. 99; Hall v. Richardson, 16 Md. 396; Marine Bank v. Wright. 48 N. Y. 1. A bill of lading accompanied by a draft sent to an agent "for collec 99 66 tion means simply to rebut the inference from the endorsement that the agent is the owner of the draft; it indicates an agency." It does not affect the presumption of retention of the jus disponendi. National Bank of Commerce V. Merchants' National Bank, 91 U. S. 92. Citing Sweeney v. Easter, 68 U. S. (1 Wall.) 681. 27. Kentucky Ref. Co. v. Globe Ref. Co., 104 Ky. 559, 42 L. R. A. 353; Mc Arthur v. Old Second National Bank (1899), 122 Mich. 223; Security Bank v. Luttigen, 29 Minn. 363; Second National Bank v. Cummings, 89 Tenn. 609. 28. Dows V. National Exchange Bank of Milwaukee, 91 U. S. 618; Turner v. Trustees of Liverpool Docks, 6 Exch. 543; Ellershaw v. Magniac, 6 Exch, 570; Brandt v. Bowlby, 2 B. & Ad. 932; Van Casteel v. Booker, 2 Exch. 691; Moakes v. Nicholson, 19 C. B. (N. S.) 290; Schotsman v. Lancashire Ry. Co., L. R. 2 Ch. App. 332. 29. Straus v. Wessel, 30 Ohio St. 211; Hobbart v. Littlefield, 13 R. I. 341; Joyce v. Swann, 17 C. B. (N. S.) 84. 30. Bank of Rochester v. Jones, 4 N. Y. 497; Farmers' Bank v. Logan, 74 N. Y. 568; Moors v. Kidder, 106 N. Y. 32; Shepherd v. Harrison, L. R. 4 Q. B. 196, 493, L. R. 5 H. L. 116; Cahn v. Pockett's Bristol Channel Co. (1898), 2 Q. B. 61; 1 Mechem on Sales, § 780. 31. 1 Mechem on Sales, § 781. 33 invoice,32 unendorsed copy, 3 or duplicate of the bill of lading to the buyer. Since, however, the seller puts it in the power of the buyer to assume the appearance of ownership, one who purchases, in good faith, for value and without notice, the bill of lading or goods will acquire title thereby.35 36 The shipment of goods, "collect on delivery," has the effect of transferring the title at the time of shipment, and the seller retains the right of possession to secure payment of the price. Some cases, however, hold that such shipment makes the carrier the seller's agent to carry and deliver the goods as well as collect the price," and the seller retains title as well as possession until payment.38 Section 21. Sale by Auction.—In the case of a sale by auction (1.) Where goods are put up for sale by auction in lots, each lot is the subject of a separate contract of sale. (2.) A sale by auction is complete when the auctioneer announces its completion by the fall of the hammer, or in other customary manner. Until such announcement is made any bidder may retract his bid; and the auctioneer may withdraw the goods from sale unless the auction has been announced to be without reserve. 32. Pa. R. R. Co. v. Stern, 119 Pa. St. 24; Wait v. Baker, 2 Exch. 1. "It is true, they sent invoices. That, however, is of no significance by itself. The position taken on behalf of the defendants, that the transmission of the invoices passed the property in the wheat without the acceptance or payment of the drafts drawn against it, is utterly untenable. An invoice is not a bill of sale, nor is it evidence of a sale. It is a mere detailed statement of the nature, quantity and cost or price of the things invoiced, and it is as appropriate to a bailment as it is to a sale. It does not of itself necessarily indicate to whom the things are sent, or even that they have been sent at all. Hence, standing alone, it is never regarded as evidence of title." Dows v. National Exchange Bank of Milwaukee, 91 U. S. 618. Citing Shepherd v. Harrison, L. R. 5 Eng. & Ir. App. Cas. 116; Newcomb v. R. R. Co., 115 Mass. 230. 33. Brandt v. Bowlby, 2 B. & Ad. 932. 34. Weyand v. R. R. Co., 75 Iowa, 573. 35. Emery's Sons v. Irving National Bank, 25 Ohio St. 360. 36. Pilgreen v. State, 71 Ala. 368; State v. Carl, 43 Ark. 343; State v. Peters, 91 Me. 31; State v. Intoxicating Liquors, 73 Me. 278; Norfolk R. R. Co. v. Barnes, 104 N. C. 25; Com. v. Flemming, 130 Pa. St. 138, 5 L. R. A. 470. 37. United States v. Shriver, 23 Fed. 134; State v. Wingfield, 115 Mo. 428; State v. O'Neil, 58 Vt. 140. 38. Wagner v. Hallack, 3 Col. 176. (3.) A right to bid may be reserved expressly by or on behalf of the seller. (4.) Where notice has not been given that a sale by auction is subject to a right to bid in behalf of the seller, it shall not be lawful for the seller to bid himself, or to employ or induce any person to bid at such sale on his behalf, or for the auctioneer to employ or induce any person to bid at such sale on behalf of the seller, or knowingly to take any bid from the seller or any person employed by him. Any sale contravening this rule may be treated as fraudulent by the buyer. 2 In the case of a sale by auction,' where goods are put up for sale in lots, each lot is the subject of a separate contract of sale. This principle finds special application where the same purchaser buys several lots and signs one memorandum therefor.3 In a sale without special conditions, the title passes when the goods are knocked down to the bidder. This rule, however, may be varied by the terms or conditions of sale. In that case, title does not pass until the terms or conditions have been complied 1. Def.-An auction is a public sale to the highest bidder. Crandall v. State, 28 Ohio St. 479; Russell v. Miner, 61 Barb. (N. Y.), 534, 5 Lans. (N. Y.) 537; Emmerson v. Heelis (1809), 2 Taunt. 38. When an auctioneer refuses to accept the highest bona fide bid, he may be compelled to do so in equity. Marcus v. City of Boston, 136 Mass. 350. 2. McManus v. Gregory, 94 Mo. 370; Messer v. Woodman, 22 N. H. 172; Couston v. Chapman (1872), L. R. 2 Sc. App. 250. In a sale by auction, each lot or parcel is a distinct contract. Robinson v. Green, 44 Mass. (3 Met.) 159. "The plaintiff sold by auction twenty parcels of land. They were separately described in the advertisement, and separately sold. Each lot stood by itself, and the defendant, having bid off four lots, numbered 1, 3, 4 and 17, respectively, signed a separate memorandum of the purchase of each, stating the price and binding himself to the terms of the sale. The purchase of each parcel was a 5 distinct contract." Wells v. Day, 124 4. Lucas v. Wallace, 42 Ill. App. 172; Noah v. Pierce, 85 Mich. 70; Jenness v. Wendell, 51 N. H. 63. 5. Williams v. Connoway, 3 Houst. (Del.) 63; Morgan v. East, 126 Ind. 42; Matthews v. McElroy, 79 Mo. 202; Clark v. Greeley, 62 N. H. 394. A sheriff or master in chancery may, in the exercise of his discretion, adopt such terms as are necessary so long as they are not so stringent and unusual as to injure the sale and prevent the fair competition necessary to an auction sale. He should adopt such terms as are necessary or expedient to secure a fair sale and the confidence of real purchasers in offering their bids. National Bank of Metropolis v. Sprague, 20 N. J. Eq. 159. with. Until the acceptance of the bid by the fall of the hammer, or announcement of the auctioneer, the bidder may withdraw his bid, and the seller, or auctioneer as his agent, may withdraw the goods from sale. 6. Morgan v. East, 126 Ind. 42; Clark v. Greeley, 62 N. H. 394. 7. Hibernia Sav., etc., Society v. Behnke, 121 Cal. 339; Mallard v. Curren, 123 Ga. 872, 874; Nat. Bank of Metropolis v. Sprague, 20 N. J. Eq. 159; Donaldson v. Kerr, 6 Pa. St. 486; Fisher v. Seltzer, 23 Pa. St. 308; Hartwell v. Gurney, 16 R. I. 78; Fenwick v. McDonald, 6 F. 850 Ct. of Sess. 'Biddings at an auction are mere offers, which may be retracted at any time before the hammer is down and the offer has been accepted. Leading case upon that subject is that of Payne v. Cave, 3 T. R. 148, where it was expressly held that every bidding at an auction is nothing more than an offer on one side until it has received the assent of the auctioneer as the agent of the owner. Supreme Court of Pennsylvania held, in the case of Fisher v. Seltzer, 23 Pa. 308, that a bidder at a sheriff's sale has a right to retract his bid before the property is struck down to him, and that the sheriff has no right to prescribe conditions which will deprive him of such a right. Express ruling was that a bid at an auction before the hammer falls is like an offer before acceptance, and that when the bid is withdrawn before it is accepted there is no contract, and that such a bidder cannot be regarded in any sense as a purchaser. Rule, as laid down in the last edition of "Story on Sales" is substantially the same as that adopted in the preceding case. Speaking of ordinary sales at an auction, the author says that the seller may withdraw the goods or the bidder may retract his bid at any time before they are struck off, and the reason assigned for the rule is, that so long as the final consent of both parties is not signified by the blow of the hammer, there is no mutual agreement to a definite proposition. But as soon as the hammer is struck down, says the same author, the bargain is considered as concluded, and the seller has no right afterwards to accept a higher bid, nor the buyer to withdraw from the contract. Rutledge v. Grant, 4 Bing. 653; Cooke v. Oxley, 3 T. R. 654; Adams v. Lindsell, 1 Barn, & Ald. 681; Story on Sales, § 461. Same rules prevail upon a sale under common-law process as in other cases of sales at public auction, so far as respects the question now before the court. Until the property is actually struck off to the bidder, he may withdraw his bid as a mere offer or proposition. "Judicial sales made under the decretal orders of courts of chancery, are also, in this country, governed substantially by the same rules, except that such sales are usually made by the marshal or a master in chancery acting as an officer of the court, and are always regarded as under the control of the court, and subject to the power of the court to set the sale aside for good cause shown, or open it at any time before it has been confirmed, if the circumstances of the case require the exercise of that power." Blossom v. Milwaukee, etc., R. R. Co., 70 U. S. (3 Wall.) 196. In Warlow v. Harrison, 20 L. J. Q. B. 18, 1 E. & E. 295, 28 L. J. Q. B. 14, Lord Campbell delivered the unanimous judgment that, firstly, it was not true in point of law that the auctioneer is the agent of the purchaser till the acceptance of his bid as being the highest, which acceptance is shown by knocking down the hammer, and that till then the auctioneer is exclusively the agent of the vendor; secondly, that both parties may retract until the hammer is knocked The seller or auctioneer may expressly reserve the right to bid by or on behalf of the seller by giving notice to that effect. Where down, that no contract takes place between them till that is done and that the auctioneer cannot be bound when both the vendor and bidder remain free. Benjamin on Sales, § 471. To the same effect is 2 Kent's Com., 537. A bidder at an auction may retract his bid at any time before the hammer is down. Every bidding is nothing more than an offer on one side which is not binding on either side till it is assented to. But according to what is now contended for, one party would be bound by the offer and the other not, which can never be allowed." Payne v. Cave, 3 T. R. 148. Benjamin on Sales, § 42. To the same effect is Grotenkemper v. Achtermeyer, 74 Ky. (11 Bush.) 222; Fisher v. Seltzer, 28 Pa. St. 308. An auctioneer, for his own protection, has the right to reject the bid of an irresponsible party. Gray v. Veirs, 33 Md. 18; Den v. Zellers, 7 N. J. L. 153; Kinney v. Showdy, 1 Hill (N. Y.), 544; Holder v. Jackson, 11 U. C. C. P. 543. The bid may be retracted by impli cation, as where the auctioneer passes to another article without accepting the bid, which is equivalent to rejection. Donaldson v. Kerr, 6 Pa. St. 486; Jones v. Nanney, 13 Price, 103. It is the custom in New Jersey, at public sales, where a bid is fairly claimed by two or more persons, to put the property up again at the price bid, and as at the bid of such one of the competitors as the auctioneer may declare entitled to it. Conover v. Walling, 15 N. J. Eq. 173. Dunham v. Hartman, 153 Mo. 625, holds that the bidder may withdraw his bid between the fall of the hammer and the writing of his name in the memorandum book. 8. Scales v. Chambers, 113 Ga. 920; Corryolles v. Mossy, 2 La. 504; Girardy v. Stone, 24 La. Ann. 296; Hartwell v. Gurney, 16 R. I. 78; War low v. Harrison (1858), 28 L. J. Q. B. 18, 21, 29 L. J. Q. B. 14, 1 E. & E 295; Payne v. Cave (1789), 3 T. R. 148; Harris v. Nickerson (1873), L. R. 8 Q. B. 286; Barker v. Furlong (1891), 2 Ch. 172; Fenwick v. McDonald, 6 F. 850 Ct. of Sess.; 1 Mechem on Sales, § 33. Subject to the control of the court, a public officer (Blossom v. Milwaukee, etc., R. R. Co., 70 U. S. [3 Wall.] 196; National Bank of Metropolis v. Sprague, 20 N. J. Eq. 159), or commissioners to sell (Miller v. Law, 10 Rich. Eq. [S. C.] 320; Conover v. Walling, 15 N. J. Eq. 173), or executors (Payne v. Cave, 3 T. R. 148; Tillman v. Dunman, 114 Ga. 406, 57 L R. A. 784) may withdraw the goods. "Courts often say that an auctioneer is solely the agent of the seller of the goods until the sale is effected, and that then he becomes also the agent of the purchaser for certain purposes; but the marshal or master, in carrying out a decretal order, is more than an auctioneer. They have duties to perform for all concerned, and in the performance of those duties they may adjourn the sale for good cause shown. Repeated decisions have established that rule, and in the leading case of Collier v. Whipple, 13 Wend. 229, the court went further and held that such an officer was bound to exercise a reasonable discretion in the matter." Blossom v. Milwaukee, etc., R. R. Co., 70 U. S. (3 Wall.) 196. Citing Tinkom v. Purdy, 5 Johns. (N. Y.) 345; McDonald v. Neilson, 2 Cow. (N. Y.) 139; Keightley v. Birch, 3 Camp. 521; Leader v. Danvers, 1 B. & P. 359; Kelly v. Israel, 11 Paige (N. Y.), 147, 154. An auctioneer has no authority to rescind a sale after accepting the bid. Boinest v. Leignez, 2 Rich. (S. C.) 464. In England, when the sale is adver |