agent falls most heavily upon himself (). If the agent refuses an account, the principal may bring an action against him for not accounting, and obtain discovery of his books and papers (m). If the items of the agency account can be proved, the principal can sue for the balance due to him as money had and received (n).

If the agent places the principal's money to his own account at his banker's, without any mark distinguishing it from his own, he will be answerable for it, if the banker fails if it were otherwise, he might treat it as his own, if the banker's solvency continued, and as his principal's, if the banker failed (0).

:

The agent of an agent, as, an auctioneer's clerk, is not Subaccountable to the principal, but only to his master (p). agents.

An auctioneer may none the less safely pay over the Insolvency of prinproceeds of sale to his principal, because he knows that the latter is in embarrassed circumstances (9).

cipal.

The auctioneer is not, in general, responsible to his Auc

(1) Gray v. Haig, 20 Beav. 219, 239.

(m) Sm. Merc. Law, 112; Jud. Act, 1875, 0. XXXI. A London broker cannot protect himself against affording discovery on the ground that such discovery will subject him to a forfeiture of the penalty of his bond to the corporation of London; Green v. Weaver, 1 Sim. 404. An action will not lie against the agent for not accounting, until after demand of an account; Topham v. Braddick, 1 Taunt. 571. After the lapse of a reasonable time, a jury may presume that a demand has been made, and the agent has accounted; ibid.

(n) Tomkins v. Willshear, 5 Taunt. 431; 1 Marsh. 115.

(0) Sm. Merc. Law, 112; Wren v. Kirton, 11 Ves. 377; Massey v. Banner, 1 J. & W. 241; 4 Madd. 413; Fletcher v. Walker, 3 Madd. 73; Darkie v. Martyn, 1 Beav. 525.

(p) Cartwright v. Hately, 1 Ves. 292; Stephens v. Badcock, 3 B. & Ad. 354; unless he has been guilty of a breach of trust; for "all parties to a breach of trust are equally liable; there is between them no primary liability "—per Leach, M. R., in Wilson v. Moore, 1 Myl. & K. 126, 146; aff. ib. 337.

(9) Always assuming that the transaction is not fraudulent; White v. Bartlett, 9 Bing. 378; Sugd. 53; Dart, 180.

tioneer's

personal liability for sale

proceeds.

employer for the purchase-money of the property sold, unless he has received it (r); but there are cases in which he may render himself liable for the purchase-money, although it has not been paid by the purchaser; as, where he has, without express authority, sold goods upon credit (s); or where he allows the contract to be rescinded, without his principal's consent. Where an auctioneer, having sold some horses which had been sent to him for that purpose, subsequently allowed the purchaser of one of the horses to rescind the contract on the ground that the horse did not answer the description given of him, it was held that, since the auctioneer had deviated from the usual course of his duty in taking upon himself to rescind the contract, it was incumbent upon him to show his warranty for doing so, and that, as he did not give such proof, his employer was entitled to recover from him the amount at which the horse had been sold (t). If an auctioneer, giving credit to the purchaser, pays the amount of the purchase-money, after deducting his charges, to his principal, with notice of an arrangement made between his principal and the purchaser, that the amount bid should be set off against an existing debt due from the former to the latter, he cannot recover the amount so paid by him from the purchaser (u). If a purchaser pays his money to an agent, when the latter is not authorized to receive it, he makes that agent his own for the purpose

of

(r) In cases where payment to the agent is payment to the principal, if the agent admits that he has received money, as, by giving credit in account with the debtor, he is precluded from saying, against his principal, that he has not received it; Andrew v. Robinson, 3 Camp. 199.

(8) Williams v. Millington, 1 H. Bl. 81; Earl of Ferrers v. Robins, 2 C. M. & R. 152; 1 Gale, 70; 5 Tyr. 705; see also ante, p. 28, note (n).

(t) Nelson v. Aldridge, 2 Stark. 435.

(u) Grice v. Kenrick, L. R. 5 Q. B. 340.

paying the money over (x); but if, in such a case, the agent has actually paid over the money, he is not liable to an action by the person who mispaid him (y). If the seller, for valuable consideration, direct the auctioneer to pay over the proceeds of the sale to a third person, he cannot revoke such direction without the consent of the third person (z).

money

paid to

The auctioneer is not liable to his principal for the Auctioneer not always purchase-money in all cases where it has been paid to him. liable for For instance, proof of money received upon a condition will purchasenot support a claim for money had and received. Thus, a horse was sold at a repository, with a warranty that it was him. quiet in harness, under the following, among other, conditions: (1) that "should any horse be warranted and prove unsound, he must be returned within the second day after the sale, before five o'clock, with a certificate from a veterinary surgeon particularly describing the unsoundness, when, if confirmed by the veterinary surgeon of the establishment, the amount received for the horse shall be immediately paid back, but if he should not confirm the certificate, another veterinary surgeon shall be called in, and his decision shall be final;" (2) that "if a horse warranted quiet in harness or quiet to ride or in any other respect (except as to soundness) shall be returned within the prescribed period as not answering the warranty given with him at the time of sale, he shall be tried and examined by an impartial person, whose decision shall be final;" and (3) that the purchasemoney for any horse sold at the repository was not to be

(x) Parnther v. Gaitskell, 13 East, 432.

(y) Per Lord Mansfield, C. J. in Buller v. Harrison, 2 Cowp. 565. But if the mistake was corrected before he paid it over, he will be liable; ibid.

(2) Metcalfe v. Clough, 2 Man. & R. 178; Sugd. 50; Rodick v. Gandell, 12 Beav. 325; 1 De G. M. & G. 763; Yates v. Hoppe, 9 C. B. 541.

paid over to the vendor till four days after the sale. The horse was paid for and taken away by the purchaser, but afterwards returned on the ground that it did not answer the warranty; whereupon the auctioneer handed back the price. It was held that the sum received by the auctioneer was not money had and received to the use of his principal (a). In another case the plaintiff sold a horse for the defendant and received the price. The purchaser afterwards rescinded the contract on the ground of fraud and was repaid the purchase-money. In an action for the keep of the horse it was held that the defendant could not set off the price as money received to his use, it having ceased to be so when the contract was defeated by the purchaser, although the defendant was ignorant of the fraud (b).

(a) Hardingham v. Allen, 5 C. B. 793; 17 L. J. C. P. 198; 12 Jur. 584. (b) Murray v. Mann, 2 Ex. 538; cf. Stevens v. Legh, 2 C. L. R. 251.

CHAPTER XIV.

SPECIAL KINDS OF SALES BY AUCTION.

I. Sales by the Chancery Division of the High Court of

Justice.

the Court

WHEN a sale of land or houses has been ordered by the Sales by Chancery Division (a), it is usually, though not invariably, are usually effected by a sale by public auction (6). A sale by auction by auction. by the Court naturally differs in some respects from an ordinary sale by auction.

the con

The conduct of the sale is given, as a general rule, to the Who has plaintiff or other party having the carriage of the general duct of a proceedings; but, if it appears to be for the benefit of the sale. estate that he should not have the conduct of the sale, the conduct may be given to any other party: the right to the conduct of the sale does not depend upon the extent of the interest of parties (c). Where all the parties have leave

(a) As to the jurisdiction of the Court to sell and its exercise, see Jud. Act, 1873, s. 34; Dart, 1171-1194.

(b) Cf. ante, p. 10, note (n).

(c) Domville v. Berrington, 2 Y. & C. Ex. 723; Alven v. Bond, F. & K. 196, 212; Dixon v. Pyner, 7 Hare, 331; Ex parte M'Gregor, 4 De G. & S. 603; Dale v. Hamilton, 10 Hare, App. VII.; Knott v. Cottee, 27 Beav. 33; Cobden v. Maynard, 1 N. R. 354; Hewitt v. Nanson, 28 L. J. Ch. 49; 7 W. R. 5 ; Dan. Ch. Pr. 1153; nor upon the possession of the titledeeds, since every party is bound to facilitate the sale; Knott v. Coitee, ubi supra