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would not be sustainable by the vendee against the auctioneer for deceit, in which the oral misrepresentations of the auctioneer might be given in evidence^). For, it is well established that, to support an action on the case for deceit, although the scienter must be alleged and proved (u), it is not necessary that the defendant should himself be a party to the contract, or that he should collude with the person who is, or that he should derive benefit from the deceit (x).

The auctioneer has a special property in the when he goods which he is entrusted to sell, and may bring his own an action for the price against the vendee in his own name (y); although the name of the principal be declared at the sale (z), and although the sale

(/) See Meyer v. Evert% 4 Campb. 23, where, although a representation by the vendor was held inadmissible in evidence to contradict the terms of the sale note in an action on the contract, Lord Ellenborough said the vendee might have maintained a cross action for the deceit. Parol evidence has been admitted, even between the parties, to prove verbal misrepresentations fraudulently made, though a memorandum of the contract had been afterwards drawn up, Dobell v. Stevens, 3 B. & C. 623. And see Lysney v. Selby, 2 Ld. Raym. 1118; Kain v. Old, 2 B. & C. 634.—Post.

(«) Ashlin v. White, Holt, 387; Tapp v. Lee, 3 B. & P. 367; Haycraft v. Creasy, 2 East, 92.

(x) Pasley v. Freeman, 3 T. R. 51.

(y) See 1 H. Bl. .84; "An auctioneer has a possession coupled with an interest in goods which he is employed to sell, not a bare custody like a servant or shopman;" Per Lord Loughborough, C. J.

(z) Atkyns v. Amber, 2 Esp. 493.

took place on the premises of the owner (a). But where the buyer, after delivery of the goods to him, without notice of any lien or claim which the auctioneer may have upon his principal, settles for the goods with the latter, no action is maintainable by the auctioneer (Z»); nor, where the goods of B. are sold as the goods of A., and the buyer settles for them with A.(e). And in the latter case, if the buyer had not settled with A., he might have set off a debt, due to him from A., in an action brought by the auctioneer for the price of the goods of B.(d). So, a set-off of a debt due from the owner is allowable in an action brought by the auctioneer, unaffected by the lien of the auctioneer, where he has parted with his lien by delivering the goods without payment (e). As the auctioneer can have no greater interest in the goods, than what he derives from his employer, he can only bring an action where his principal could have maintained it; therefore, where the principal is proved not to have been the proper owner, and the true owner asserts his claim, the purchaser is not liable at the suit of the auctioneer (/).

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If the auctioneer makes himself a party, by bringing the action in his own name, his memorandum will not be sufficient to bind the purchaser within the Statute of Frauds (g); but the signature of the clerk will be sufficient, as the clerk is not considered to be identified with the auctioneer (A).

(g) Farebrother v. Simmons, 5 B. & A. 333.

(A) Bird v. Boulter, 4 B & Ad. 443. See above, p. 78.

CHAP. VI.

OF SALES IN MARKET OVERT.

Section I.—Of the alteration of Property in General by a Sale in Market Overt.

General The general rule of law is, that no person can transfer a greater interest in anything than he himself possesses (a). The consequence of this doctrine would be, that a sale by a wrongful possessor could never vest the property in the vendee, however honest might have been the conduct of the latter; the original owner might, at any time, Exception, claim arid retake the goods. But, for the security orerJ of bond fide purchasers, an exception is made where the sale has taken place in market overt; and it is laid down generally, that " every sale, made in a fair or market overt, transfers a complete property in the thing sold to the vendee; so that, however injurious or illegal the title of the vendor may be, yet the vendee's is good against all men"(5). This general rule, however, must be understood with some restrictions.

(a) 2 Bl. Comm. ch. 30. Nemo potest plus juris ad ahum transferTM quam in ipso est; Noy's Max. p. 339, (9th Ed.). (6) Bac. Abr. Fairs, E.; Hob. 79; 13 Ves. Jun. 122.

Every shop in the city of London is a market overt What c«n

J r * , stitutes

every day (except Sundays (c)), in respect of goods market and chattels usually exposed to sale by their respective owners (dy. So in Bristol, or elsewhere, by custom (e). The Strand was held not to be market overt(y). A wharf, even in London, is not market overt, and a sale there does not alter the property against the rightful owner, though goods of the same sort be proved to be usually sold in such wharf (g). And, it is said, the king cannot grant that a shop shall be a market overt (A). Even in London each shop is not a market overt for goods improper and foreign to the owner's trade, as plate in a scrivener's shop(i). So, if horses be sold in Cheapside, or

(c) The vendee in pleading must aver and prove that the sale was on a lawful day; Burch v. Scorry, 12 Mod. 309; Marshall v. Porter, Vin. Abr. Market, K. 3. The stat. 27 Hen. VI. c. 5, makes fairs held on Sundays illegal. See 1 Taunt. 136. [Of contracts of sale, in general, made upon Sunday, vid. supra, p. 95."]

(d) Market overt's Case, 5 Rep. 83a; 8 Rep. 127; Godb. 131; Waggoner v. Fish, 2 Brownl, 284; Panton v. Hassell, Hetley, 63.

(e) Com. Dig. Market, E. Vid. per Lord Hardwicke, C. J., in Harris v. Sham, Ca. temp. Hardvr. 350; Hetley, 62.

(/) Anon. 12 Mod. 521.

(g) Wilkinson v. King, 2 Camp. 335. The mere publicity of a sale is not of itself sufficient to bar the real owner. Where goods were wrongfully sold by the sheriff by public auction, the

owner recovered in trover against the purchaser; Farrant v. ,

3 Stark. N. P. C. 130.

(h) Clifton v. Chancellor, Moor, 625, per Cur.

(i) 2 Inst. 713; Vin. Abr. Market, *A; Bishop of Worcester's Case, Moor, 360; S. C. 1 Ander. 344; Poph. 84; Palmer v. Wolley, Cro. Eliz. 454; Taylor v. Chambers, Cro. Jac. 69.

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