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such an action : for an attorney is only bound to use reasonable care and skill in managing the business of his client. He is only liable for crassa negligentia.—Hence an action cannot be maintained against an attorney for negligence in not discovering a defect in the memorial of an annuity, which was subsequently holden to be a defect, upon a doubtful construction of the statuteo. Where an attorney was sued for negligence in allowing judgment to go by default, in an action which the plaintiff had retained him to defend : the negligence being proved, it was holdenP, that it was his duty to adduce evidence to show that the plaintiff was not damnified by the judgment by default, and that the plaintiff was not bound to establish, that there would have been no recovery against him if a plea had been put in. The Court of Chancery' has no jurisdiction to make a solicitor responsible for negligence in the conduct of a suit. The solicitor under a commission of bankruptcy is not liable in the first instance to the messenger, whom he nominates, for his bill of fees; but if the solicitor agree with the petitioning creditor to work a commission for a sum certain, and receive a great part of that sum, he will be liable to such messenger' (14). In an action against an attorneys for suffering M. C., a debtor in custody at the suit of the plaintiff to be superseded, it was averred that M. C. debted to the plaintiff. It appeared in evidence, that at the time of contracting the supposed debt, M. C. was a married woman. This was holden to be a fatal variance.
Evidence.—The regular proof of a person being an attorney, is either by the production of the original roll, signed by the party on his admission, together with proof of his signature, as evidence of identity; or by an examined copy of the roll, together with the admissiont; but in an action by an attorney for slandering him in his profession, it is sufficient for him to prove that he has acted as an attorney in the court of which he is alleged to be an attorney, and if the defendant's words assume that the plaintiff is an attorney, it operates as an admission that he is so, and supersedes necessity of other proof u
o Baikie v. Chandless, 3 Campb. 17.
See stat 6 Geo, 4. c. 16. s. 14.
P. C. 119.
t 2 Phillips' Evid. p. 159, 5th ed.
cognized in Pearce v. Whale, 5 B.
(14) The provisional assignee is not responsible for the fraud of an agent appointed with due care. Cutten, 9 Bingh. 96.
CH A P. VI.
Of Agreements relating to the Sale of Lands and Goods by
Auction. Cases where the Duty attaches. Liability of Auctioneer. Recovery of Deposit and Interest on Defect of Title.
A SALE of lands by auction is within the 4th section (1) of the statute of frauds (29 Car. 2. c. 3.), and to make it binding, the solemnities required by that statate must be observeda : the auctioneer is to be considered as the agent of both parties b. With respect to the sale of goods by auction, it has not been decided that such sales are within the 17th section (2) of the same statute; but the better opinion seems to be that they are. Assuming that they are, it has been determined that the auctioneer is the agent of both parties, and that a note or 'memorandum in writing of the bargain, made and signed by him, will be sufficient to give validity to the contract. The defendant bought a lot of goods for more than 101. at an auction.
a Walker v. Constable, I Bos. and Pul.
306. b Kemeys v. Proctor, 3 Ves. & Beames,
57. See this subject more fully dis. cussed under tit. Statute of Frauds.
c Simon v, Motivos, 3 Burr. 1921. more
fully stated in Bull. N. P. 280. under the name of Simon v, Merivier. Best report in 1 Bl. Rep. 599. cited in Mason v. Armitage, 13 Ves. Jun. 25.
(1) By which it is enacted, that “ action shall be brought whereby to charge a defendant upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.”
(2) By which it is enacted, that “no contract for the sale of any goods, wares, and merchandizes, for the price of 101. or upwards shall be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part of payment, or that some note or memorandum in writing of the same bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized.”
Catalogues and conditions of sale were printed, and the defendant was the best bidder. The auctioneer wrote the defendant's name, and the price, against the lot in the printed catalogue, by order of the defendant. Between the day of sale and the time fixed by the conditions for taking the lot away, the defendant sent his servant to see them weighed, which he did. The defendant neglecting to take away the goods, they were resold at a considerable loss, and an action was brought for the difference; and the court strongly inclined 1. That sales by auction were not within the statute of frauds, because a number of persons are generally present, who can testify the terms of the contract; 2. They held the contract here was sufficiently reduced into writing and signed by an agent of the defendant's, for the auctioneer for that purpose was his agent (3): 3. They held the weighing by his servant was a delivery: 4. Yates, J. held, that, as the contract was executory, viz. the lot to be taken away in six weeks, it was not within the statute (4).
A bidding at an auction may be retracted before the hammer is down, because the assent of the seller is not signified till that takes placed. Verbal declarations of the auctioneer, superadding any term toe, or contrary to the printed conditions of sale, are not admissible in evidence. The printed particulars cannot be variedby such verbal statements of the auctioneer, either as to the parcels or quality of the subject matter of sale. An action will not lie against an auctioneer for selling a horse at the highest price bid for him', contrary to the owner's express directions, not to let him go under a larger sum.
d Payne v. Cave, 3 T. R. 148.
g Shelton v. Livius, 2 Cr. and J. 411.
(3) This rule has been acted upon ever since this decision; and in conformity with such rule, it has been holden, that upon sales made by brokers acting between the parties buying and selling, the memo. randum in the broker's book, and the bought and sold notes transcribed therefrom, and delivered to the buyers and sellers respectively, are a sufficient compliance with the statute to render the contract of sale binding on each. See the opinion of Lord Ellenborough, C. J. in Hinde v. Whitehouse, 7 East, 569.
(4) If any money is paid as a deposit, though short of the sum stipulated by the conditions, and accepted as such by the auctioneer, it will bind the bargain quoad the auctioneer. Hanson v. Roberdeau, Peake's N. P. C. 120.
An auctioneer has a special property in goods, which he is employed to sell, and may maintain i an action for the price against a buyer; but not in a casek where the right of a third person intervenes, and is established.
If the owner of an estate put up to sale by auction, employ puffers to bid for him, it is a fraud on the real bidders (5), and the highest bidder cannot be compelled to complete the contract.
If the agent of the owner put up an estate in so many lots m, and, no person bidding for the same, he puts it up again in fewer lots, at other prices, and still no person bidding, he puts it up again in one lot at a certain price, and on there not being any bidding, the estate is withdrawn from sale; this is not a bidding of the owner by an agent, so as to subject the party to the auction duty, for want of a notice in writing to the auctioneer (previously to the auction) of such agency, as required by statutes 19 G. 3. c. 56. and 28 G. 3. C. 37. in order to excuse the owner from the payment of such duty. Where an estate" is sold by auction by a mortgagor, mortgagee being passive, the duty is payable on the difference only between the price paid for the estate and the mortgage debt, inasmuch as the equity of redemption only is really sold. By stat. 6 G. 4. c. 16. s. 98. “all sales of any real or personal estate of any bankrupt shall not be liable to any auction duty." A trader, having mortgaged his real estates, afterwards conveyed them to trustees in trust to pay off incumbrances and for other purposes ; he then became bankrupt, whereupon a sale by auction of the estates was made by order of the assignees, with the consent of the trustees, and without, for any thing that appeared, the mortgagees having been consulted. It was holden”, that the estates, though mortgaged,
i Williams v. Millington, 1 H. Bl. 81. k Dickenson v. Naul, 4 B. and Ad. 638. | Howard v. Castle, 6 T. R. 642. re
cognized by Grose and Lawrence, Js. in 8 T. R. 93, 95. See Wheeler v. Collier, M. & Malk. 123. R. v. Marsh, 3 Y. and J. 331. and Crowder v. Austin, 3 Bing. 368.
m Cruso v. Crisp, 3 East. 337. But
see Ld. Eldon in 1 Dow. 114. n R. v. Sedgwick, 2 Cr. M. and R. 603.
1 Tyr. and G. 94. o A. G. v. Winstanley, 2 Dow and
CI. D. P. 302.
(5) The owner may legally and fairly bid, either by himself or an agent, if before the bidding begins he gives public notice of his intention; and in such cases if he becomes the purchaser, he may claim an allowance of the duties, (see the statutes 17 G. 3. c. 50. s. 10. and 19 G. 3. c. 56. s. 12.) provided that the notice required be given, and the delivery thereof verified upon the oath of the auctioneer, together with the fairness of the transaction.
must still be considered as the estates of the mortgagor, the bankrupt, (the interest of the mortgagee being merely a security,) and consequently, according to the words and intention of the foregoing act, no auction duty was payable.
An auctioneer was employed to sell an estatep, the lowest price of which was fixed by the owner, and written down by him on a piece of paper, which was put under a candlestick, at the time of sale, with the privity of the auctioneer, but not signed by the owner, nor any notice in writing given to the auctioneer of the price so set down, nor had the auctioneer given the previous notice of the sale to the collector of the duty, as required by the acts of the 19 G. 3. c. 56. and 28 G. 3. c. 37.; but being asked at the sale, whether he had taken the proper precautions to avoid the duty in case there were no sale, he said, that it was his mode to fix a price under the candlestick, and if the bidding did not come up to that price, it was no sale or duty : It was holden that the duty having attached, though there was no sale, for want of taking the precautions required of the owner by the statutes, under such circumstances, and the auctioneer having been sued for the duty on his bond to the crown, and compelled to pay it, he could not recover it over against the owner; he having in effect warranted, that proper precautions had been taken to prevent the duty attaching in the event, though both parties were mistaken as to the law.
In an action for money paid, laid out, and expended, it appeared in evidence, that the defendant had employed the plaintiff, an auctioneer, to sell an estate. The plaintiff accordingly put it up to sale, and it was knocked down to a purchaser, who afterwards refused to complete his purchase, on the ground of a defect in the title. An action was brought against the present plaintiff, to recover the deposit; notice of the action was given to the defendant, and he was required to defend it, but declined; whereupon the plaintiff paid the deposit and interest, together with costs of suit, and now brought this action to recover the same as well as the auction duty, which he had been compelled to pay: Lord Ellenborough, C. J. “The money paid on account of the costs in the cause, cannot be recovered in this form of action, which is for money paid only; to recover in such action, it should appear clearly to be money actually and necessarily paid to the use of the party. There should have been a special count, inasmuch
as the right of the plaintiff to the costs is not so apparent. The plaintiff might have defended the action of his own wrong, and without any
p Capp v. Topham, 6 East, 392.