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action to the best of his knowledge and belief(c). If an auction is rendered void by inability of the seller to make out a good title to the property, the commissioners of excise are authorized to remit the auction duty (d). By the words of the statute, the vendor (or his Duty pay.

able bg venagent) is made the party liable to pay the duty, dor unless

otherwise But, although the duties are imposed by the act stipulated. on the vendor, he is not restrained from making it a condition of sale, that the whole or part of the duty shall be paid by the purchaser over and above the price bidden at the auction (e). Where the condition was, that the purchaser should pay the duty, the highest bidder, the purchase not having been completed, was held not to be liable (f).

Section V.-Of the Duties and Rights of the

Auctioneer in respect of Vendor.

The auctioneer is bound to take such due care Dure and of the goods, entrusted to him, as he would do if liability of

auctioneer. they were his own property; so that, for a loss,

(c) 17 Geo. III. c. 50, s. 10; 19 Geo. III. c. 56, s. 12; 28 Geo. III. c. 37, s. 20; 42 Geo. III. c. 93, s. 1. See Cruso v. Crisp, 3 East, 387; but see 1 Dow. 114. Sugd. Vend. p. 21, (9th Ed.)

(d) 19 Geo. III. c. 56, s. 11; 51 Geo. III. c. 95, s. 1.
(e) Sugd. Vend. p. 44, (9th Ed.)
(f) Jones v. Nanney, 13 Price, 76; S. C. M.Clel. 25.

arising from misfortune or unavoidable accident, without negligence, he will not be liable (6).

It is the duty of the auctioneer, in general, to sell the goods to the highest bidders respectively. No action will lie against him by the vendor for selling at the highest price, though that sum be less than he had been secretly instructed to take (c); because, to obey such secret instructions would be a fraud upon the bidders. Otherwise, if the principal had directed him to set up the goods at a particular price (d). If the auctioneer take upon himself to rescind the contract with a purchaser, he will be liable to his principal for the amount; and if he contends that he was warranted in so doing, the onus of proof rests on him, though it involve the proof of a negative (e). The vendor may support an action against him for not fully accounting for the proceeds, even if he has suffered the buyer to remove the goods without payment of the full price (f). He is prima facie bound to account with his principal; and, if he has acknowledged his principal's title, he will be estopped from setting up a jus tertii (g).

(6) Per Lord Kenyon, C. J., 1 Esp. 341,
(c) Bexwell v. Christie, 1 Cowp. 395.
(d) Id.
(e) Nelson v. Aldridge, 2 Stark. N. P. C. 435.
(f) Brown v. Staton, 2 Chit. Rep. 353.

(8) Crosskey v. Mills, 1 Cr. M. & Rosc. 298. See 1 Esp.

It seems, that the auctioneer is liable at the suit Indemnity. of the real owner of the goods, where he has sold them, even in ignorance, under the authority of a wrongful claimant (h); at all events after notice (1). Yet, if the true owner recover against the auctioneer, an action is generally sustainable by him against his principal for indemnity (k). Lord Ellenborough held, however, in one case, that, when goods were sold, by the authority of the sheriff, under a writ of fi. fa., there was no implied promise on the part of the sheriff to indemnify the auctioneer ().

When the auctioneer has paid the auction duty, Compensa. he is entitled to deduct it from the money he has imburse received at the sale, or, if he has received none, to recover the amount from the vendor (m). He is entitled to be reimbursed for all necessary expenses, and he may maintain an action against the vendor for reasonable compensation for his services (n).

tion and re

ment,

(h) Hardacre v. Stewart, 5 Esp. 103. See the judgment of Ld. Ellenborough, C. J. id. 105.

(i) Id. ; Loeschman v. Machin, 2 Stark. N. P. C. 311.

(k) Adamson v. Jervis, 4. Bingh. 66. [It is certainly an established rule, that wrongdoers in general cannot have redress or.contribution against each other; (see Merryweather v. Nixon, 8 T. R. 186; Colburn v. Patmore, 4 Tyrrh. 677): but this rule seems to be confined to cases, where the party seeking redress must be presumed to have known that he was doing an unlawful act. See 4 Bingh. 73; Betts v. Gibbins, 4 Nev. & Man. 64.]

(1) Farebrother v. Ansley, 1 Campb. 343. .
(m) Sugd. Vend. p. 18,(9th Ed.); Spurrier v. Elderton, 5 Esp. 1.
(n) It seems, that an unusual rate of percentage will not be

: But, where he is guilty of such a tortious negli

gence as renders the sale nugatory, he is not entitled to such claim (0); and where he has neglected to take the proper precautions for preventing the auction duty from attaching in the event of the sale going off, he cannot recover the amount of the duty from his principal (p).

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vendee,

Section VI.Of the Duties and Rights of the

Auctioneer in respect of Vendee. It has been already stated, that the auctioneer is decided to be an agent for the vendee, within the Statute of Frauds, in the sale both of real and personal property (a). The justness of the doctrine has been questioned (6); and, if it were now res integra, probably the contrary might be established. It is said, that the bidding aloud of the

allowed, unless a custom to that effect can be expressly proved.
See Maltby v. Christie, 1 Esp. 339.

(0) Denew v. Daverell, 3 Campb. 451.
(p) Capp v. Topham, 6 East, 392 ; S. C. 2 Smith, Rep. 443.
(a) Supra, p. 75. .

(6) Emmerson v. Heelis, 2 Taunt. 45, per Mansfield, C. J.; Kemeys v. Proctor, 3 Ves. & B. 59, per Sir W. Grant, M. R. [The contrary had been expressly decided in the sale of real property, Stansfield v. Johnson, 1 Esp. 101, coram Eyre, C. J.; Walker v. Constable, 1 B. & P. 306; Buckmaster v. Harrop, 7 Ves. Jun. 341 ; Coles v. Trecothick, 9 Ves. Jun. 234.]

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purchaser confers the authority (e). Where the purchaser bids by an agent, he will be bound by the auctioneer signing the name of either the principal or agent (f). The authority of the auctioneer is altogether determined at the close of the sale; therefore representations, subsequently made by him, are of no effect (g).

Where a deposit is paid to the auctioneer, he is Deposit. considered a stakeholder until the completion of the sale; but after he has paid it over to his principal, without notice, he will not be personally responsible (h). However, as long as he has not paid it over, he is liable to the vendee for the amount (i), or even if he has paid it, where such payment was wrongful, or after due notice given by the bidder (k), or where the auctioneer signed the contract in his own name (1). But he is not, in general, liable for interest on the deposit (m); nor for damages for the injury arising from the loss of a fancied good bargain (n). If the auc

(e) 2 Taunt. 47, 48.

(f) Phillimore v. Barry, 1 Campb. 513; Kenworthy v. Schofield, 2 B. & C. 945. Supra, p. 75.

(g) See Seton v. Slade, 7 Ves. Jun. 276. (h) Horsfall v. Handley, 8 Taunt. 136.

(i) Burrough v. Skinner, 5 Burr. 2639; See Berry v. Young, 2 Esp. 640; Curtis v. Greated, 1 Ad. & Ell. 167.

(k) Edwards v. Hodding, 5 Taunt. 815. (1) Gray v. Gutteridge, 3 C. & P. 40.

(m) Maberley v. Robins, 5 Taunt. 625 ; Lee v. Munn, 8 Taunt. 45; Harrington v. Hoggart, 1 B. & Ad. 577.

(n) Flureau v. Thornhill, 2 Bl. Rep. 1078.

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