Horses of others, is a Horsedealer within the Assessed Tax The Judges at Serjeants' Inn held the proprietor of The ProAldridge's Repository to be a Horsedealer. When the prietor of case came before the Court of Exchequer, Mr. Baron Aldridge's. Parke, with whom Mr. Baron Alderson agreed, said, “I am by no means prepared to say that the decision of the Judges, as to the construction of the word 'Horsedealer' in these statutes, was wrong; if I were forced to give an opinion, it might be in accordance with theirs" (b). The duty which was formerly payable by a Horsedealer No duty payhas been repealed by the 37 Vict. c. 16, s. 11, which able by provides that duties on licences for exercising or carrying on the trade of Horsedealers shall cease to be payable. Horsedealer. dealer when a Though all debtors are now liable to become bank- A Horserupts (c), yet the distinction between traders and non- trader within traders retains its importance, inasmuch as the test of the Bankbankruptcy varies in the case of traders and non-traders ruptcy Act. (as defined before the Act of 1861), and many acts, which in the case of a trader would be acts of bankruptcy, would not justify an adjudication in the case of a non-trader. It must therefore be borne in mind that a person who seeks his living by buying and selling Horses (d), or who buys Horses for the express purpose of gaining by it (e) as part of his business (ƒ), which is a question for the Jury (g), is a trader. REPOSITORIES AND AUCTIONS. An Auctioneer is solely the agent of the seller of the An Aucgoods, until the sale is effected, and then he becomes also tioneer. the agent of the buyer for particular purposes (h). For when he signs the printed particulars of sale, he signs them as the agent of the purchaser (i). But as soon as the auction is over, the Auctioneer loses his distinctive attributes; and to sales afterwards effected by him, the rules of ordinary sales alone are applicable (). (b) Allen v. Sharp, 2 Ex. 352, 366. (e) Bankruptcy Act, 1861, 24 & 25 Vict. c. 134, s. 69. And see 32 & 33 Vict. c. 71, s. 6. (d) Martin v. Nightingale, 3 Bing. 421. (e) Bartholomew v. Sherwood, 1 T. R. 573. (f) Bell v. Young, 24 L. J., C. P. 66. (g) Wright v. Bird, 1 Price, 20. (i) See per Rolfe, B., Eden v. (k) Mews v. Carr, 26 L. J., Ex. 39; Marsh v. Jelf, 3 F. & F. 234. Liable to an action for negligence. Or for conversion. An action lies against an Auctioneer employed to conduct a sale for negligence in his management of it. As where the seller had to make the purchaser compensation, in consequence of the property having been improperly described by the Auctioneer who had been employed to prepare particulars, and sell the property (7). And where an Auctioneer, by an unauthorized sale, deprives another of his property permanently or for an indefinite time, he is liable to an action for conversion (m). The case of Cochrane v. Rymill (n) is an instance of wrongful conversion by an Auctioneer. In that case the plaintiff by agreement let some cabs on hire to one Peggs, who took them to the defendant, who was an Auctioneer, and obtained an advance on them. The defendant by Peggs' instructions, and without any notice of the plaintiff's property in the goods, subsequently sold them by auction, and having recouped himself for his advance, commission, and expenses, handed over the balance to Peggs; and it was held by the Court of Appeal (affirming the judgment of Lord Coleridge, C. J.), that the plaintiff was entitled to recover damages from the defendant for conversion of the goods; and Bramwell, L. J., in the course of his judgment said, "It is, no doubt, a very hard case for the defendant who has acted innocently throughout in the matter; but setting aside the hardship of the case, the law applicable to it is quite clear. Here is Peggs, a man who is not the true owner of these goods, but appearing to act as such, but who has no power whatever to sell, takes them to the defendant and gets a loan from him on them. The defendant keeps them and finally sells them in such a way as to pass the property in them to the buyers, and if that is not a conversion, then I think there can be no such thing. Supposing a man were to come into an auction yard holding a Horse by the bridle and to say, 'I want to sell my Horse: if you will find a purchaser I will pay commission.' And the Auctioneer says,Here is a man who wants to sell a Horse; will anyone buy him?' If he then and there finds him a purchaser and the seller himself hand over the Horse, there could be no act, on the part of the Auctioneer, which could render him liable to an action for conversion. But, (1) Parker v. Farebrother, 2 Weekly Rep., C. B. 370; and see Torrance v. Bolton, L. R., 8 Ch. 118; 42 L. J., Ch. 177. (m) Hiort v. Bott, L. R., 9 Ex. 86, 89; 43 L. J., Ex. 81; 30 L. T., N. S. 25; 22 W. R. 414. (n) 40 L. T., N. S. 744; 27 W. R. 776. pro looking at this case, there is a clear dealing with the perty and exercising dominion over the chattel, and a delivery of it by the defendant to another person to do what he likes with it." prised in bill But where the plaintiffs were the holders of a Bill of Selling Sale including certain Horses and harness; and the grantor Horses comof the Bill of Sale, without the plaintiff's knowledge, took of sale. the Horses and harness to the defendant's Repository for sale by auction and they were entered in the catalogue, the defendant knowing nothing of the Bill of Sale; but before the auction the grantor of the Bill of Sale sold the Horses and harness by private contract in the defendant's yard, and the purchase-money was paid to the defendant, who deducted his commission and paid the balance to the seller, the Horses and harness being delivered to the purchaser; it was held that the defendant was not guilty of conversion (o). For the defendant had received the Horses and harness from the grantor of the Bill of Sale, and had delivered them back to the person to whom the grantor of the Bill of Sale had given a delivery order; he had not claimed to transfer the title, and he had not purported to sell; all the dominion he exercised over the chattels was to re-deliver them to the man, the person from whom he had received them had told him to re-deliver them (p). Where a Horse is sent to a common Repository, for the sale of Horses, an authority to sell is implied, although no authority was ever given in fact, and the owner will be bound by a sale to a bona fide purchaser, although made without his express consent (q). Horse sent to a Repository. Where a Horse is sold at a Repository, the possession Auctioneer's is in the Auctioneer, and it is he who makes the contract. possession. If the Horse should be stolen he may maintain an indictment, and he has such a special property as to maintain an action against the buyer for Goods sold and delivered (r), but not in a case where the right of a third person intervenes, and is established (s). But where, as in the north of England, there is a sale by auction of Horses and cattle on the owner's premises, it is doubtful (0) National Mercantile Bank v. Rymill, 44 L. T., N. S. 767-C. A. Reversing Ibid. 307-Lopes, J. (p) Ibid. per Bramwell, L. J. (1) See Pickering v. Busk, 15 East, 38, 45; Chit. Contr. 11th ed. 195. (r) See Williams v. Millington, 1 (s) Dickenson v. Naul, 4 B. & Ad. 638. An Auc tioneer can set up jus tertii. Interpleader by Auctioneer. Goods privileged from distress. whether the Auctioneer has such an interest in them as to recover the price (†). An Auctioneer can set up the jus tertii, if he defends the action upon the right and authority of the third person, to a claim for the proceeds of a sale of goods, which he has been employed to sell by auction by a person who had gained possession of them by an illegal distress (u). An Auctioneer may interplead where he has sold goods, and the proceeds of the sale are claimed by a third party (x); and it seems that he is entitled to do so notwithstanding that he claims a lien on the proceeds of the sale for his commission, for in such cases he claims no interest in the corpus of the property (y). But where the claims are not co-extensive, an auctioneer has no right to interplead. Thus, in a case where the defendant, the proprietor of a Horse repository, sold there by public auction a Horse to the plaintiff, warranted quiet to ride and in harness, but subject to a condition, by which, if considered by the buyer incapable of working from any infirmity or disease, it might be returned on the second day after the sale, and the matter determined by veterinary surgeons according to the terms provided for in such condition. The Horse was returned accordingly by the plaintiff, who demanded to have back the money he had paid for the purchase, and this being refused, he brought an action against the defendant for damages for breach of the warranty, and the party who had placed the Horse at the repository for sale, claimed of the defendant the proceeds of the sale, stating that the Horse had left the repository perfectly sound; it was held that the defendant was not entitled to an interpleader order (≈). Goods sent to an Auctioneer to be sold on premises occupied by him are privileged from distress for rent (a); although he may sell in a place let to him merely for could not file a bill of interpleader. As to interpleader generally, see 1 & 2 Will. 4, c. 58, ss. 1, 2, 7; 23 & 24 Vict. c. 126, ss. 12-18; 36 & 37 Vict. c. 66, Sch. Ord. 1, r. 2. (2) Wright v. Freeman, 48 L. J., C. P. 276; 40 L. T., N. S. 134; ibid. 358, C. A. (a) Adams v. Grave, 1 C. & M. 380; Williams v. Holmes, 22 L. J., Ex. 283. the occasion, or by a person without authority, or the occupation has been acquired by the Auctioneer by any act of trespass (b). An Auctioneer, who is employed to sell goods by public His right to auction, has not such an interest as will make the licence remain on the premises. to enter the premises irrevocable. Therefore, where the owner of the premises revoked his consent to the Auctioneer remaining there, it was held that he had no right to continue there, though he had incurred expenses in allotting the goods, and though he remained only to complete the sale by delivering the goods to the purchasers (c). After a sale is effected, the Auctioneer may in general Auctioneer or be considered as the agent and witness of both the parties clerk agent of to a contract; but a difficulty arises in the case where both parties. the Auctioneer sues as one of the contracting parties (d), because the agent, whose signature is to bind the defendant, must not be the other contracting party upon the record (e). However, an entry made in a sale book by the Auctioneer's clerk who attends the sale, and as each lot is knocked down names the purchaser aloud, and on a sign of assent from him makes a note accordingly in the book, is a memorandum in writing by an agent within the Statute of Frauds; for the clerk is not identified with the Auctioneer (who sues), and in the business which he performs of entering the names, &c., he is impliedly authorized by the persons attending the sale to be their agent (f). to a Cata But if the purchaser's name be signed to a Catalogue, it Purchaser's must be connected with or refer to the conditions of sale to name signed make the contract valid (g); and it is not sufficient if they logue. are even in the same room, so long as they are not actually attached to the Catalogue, or clearly referred to in it; and if during the sale they get separated, the signatures made after separation are unavailing (h). (b) Brown v. Arundell, 10 C. B. 54; S. C. 16 L. T. 126. (e) Taplin v. Florence, 10 C. B. 744; see S. C. 15 Jur. 402. (d) Wright v. Dannah, 2 Camp. 203. (e) Farebrother v. Simmonds, 5 B. & A. 333. And see Sharman v. Brandt, L. R., 6 Q. B. 720; 40 L. J., Q. B. 312; 19 W. R. 936,. Ex. Ch. (ƒ) 29 Car. 2, c. 3, and see ante, p. 27; Bird v. Bolton, 4 B. & (g) Hinde v. Whitehouse, 7 East, (h) Kenworthy v. Scholfield, 2 B. & C. 945. See also Pierce v. Corf, L. R., 9 Q. B. 210; 43 L. J., Q. B. 52; 29 L. T., N. S. 919; 22 W. R. 299; Rishton v. Whatmore, L. R., 8 Ch. D. 467; 47 L. J., Ch. 629; 26 W. R. 827. |